transcript of the record upon which the order complained of was entered", and "The finding of the Commission as to the facts, if supported by substantial evidence, shall be conclusive." (15 U. S. C. 78y).

Other statutes authorizing agency action which is clearly adjudicatory in nature, such as the revocation of licenses, specifically require the agency to hold a hearing but contain no provision expressly requiring decision "on the record". For example, the Secretary of Agriculture may issue cease and desist orders under section 312 of the Packers and Stockyards Act, 1921 (7 U. S. C. 213), only after "notice and full hearing", and these orders are made reviewable under the Urgent Deficiencies Act. The Department of Agriculture has always assumed that these orders must be based upon the evidentiary record made in the hearing, and the courts have held that upon review the validity of an order issued under the Packers and Stockyards Act must be determined upon the administrative record. Tagg Bros. & Moorhead v. United States, 280 U. S. 420 (1930). It seems clear that administrative adjudication exercised in this context is subject to sections 5, 7 and 8.

A further group of statutes merely authorizes adjudicatory action after hearing, and contains no reference to decision "on the record" nor any specific provision for judicial review. Thus, under the United States Warehouse Act, the Secretary of Agriculture may suspend or revoke warehousemen's licenses "after opportunity for hearing" (7 U.S.C. 246). It is believed that with respect to adjudication the specific statutory requirement of a hearing, without anything more, carries with it the further requirement of decision on the basis of the evidence adduced at the hearing. With respect to rule making, it was concluded, supra, that a statutory provision that rules be issued after a hearing, without more, should not be construed as requiring agency action "on the record", but rather as merely requiring an opportunity for the expression of views. That conclusion was based on the legislative nature of rule making, from which it was inferred, unless a statute requires otherwise, that an agency hearing on proposed rules would be similar to a hearing before a legislative committee, with neither the legislature nor the agency being limited to the material adduced at the hearing. No such rationale

2 It is clear that nothing in the Administrative Procedure Act precludes private parties from waiving their right to a hearing. Similarily, an agency is not prevented from requiring parties to indicate within a reasonable time their desire for a hearing.

applies to administrative adjudication. In fact, it is assumed that where a statute specifically provides for administrative adjudication (such as the suspension or revocation of a license) after opportunity for an agency hearing, such specific requirement for a hearing ordinarily implies the further requirement of decision in accordance with evidence adduced at the hearing. H.R. Rep. p. 51, fn. 9 (Sen. Doc. p. 285). Of course, the foregoing discussion is inapplicable to any situation in which the legislative history or the context of the pertinent statute indicates a contrary congressional intent.

Certain licensing statutes provide that an application for a license may be granted or become effective upon lapse of time without a hearing, but that there must be an opportunity for hearing prior to the denial of the application. See Securities Exchange Act of 1934, section 15(b), (15 U. S. C. 780 (b)) and Communications Act of 1934, section 309 (47 U. S. C. 309). Nothing in section 5 of the Administrative Procedure Act is intended to require hearings where such statutes now permit the granting of licenses without a hearing.

Exempted adjudications. Section 5 specifically exempts from its provisions (and, accordingly, from the provisions of sections 7 and 8) six types of adjudicatory functions or proceedings which are discussed hereafter. It is important to note that these exemptions extend to all of the provisions of section 5. Furthermore, the exemption is applicable even where the exempted function is required by statute to be exercised "on the record after opportunity for an agency hearing". Sen. Rep. p. 16; H.R. Rep. p. 26 (Sen. Doc. pp. 202, 260).

1. "Any matter subject to a subsequent trial of the law and the facts de novo in any court". This exemption was explained in the reports of the Senate and House Committees on the Judiciary, as follows: "Where the adjudication is subject to a judicial trial de novo [it] is included because whatever judgment the agency makes is effective only in a prima facie sense at most and the party aggrieved is entitled to complete judicial retrial and decision." Sen. Rep. p. 16; H.R. Rep. p. 26 (Sen. Doc. pp. 202, 260). Exempt under this heading are certain proceedings which lead to reparation orders awarding damages, such as are issued by the Interstate Commerce Commission (49 U. S. C. 16) and the Secretary of Agriculture (7 U. S. C. 210). Senate Hearings (1941) pp. 75, 1389, 1508. In the Senate Comparative Print of June 1945

(p. 8) (Sen. Doc. p. 22) the scope of the exemption was described as follows:

This exception also exempts administrative reparation orders assessing damages, such as are issued by the Interstate Commerce Commission and the Secretary of Agriculture, since such orders are subject to trial de novo in court upon attempted enforcement.

2. "The selection or tenure of an officer or employee of the United States other than examiners appointed pursuant to section 11". This exemption of adjudications involving the selection and tenure of officers other than examiners was made "because the selection and control of public personnel has been traditionally regarded as a largely discretionary function". Sen. Rep. p. 16; H.R. Rep. p. 26 (Sen. Doc. pp. 202, 260). There is excluded from this exemption the selection or tenure of "examiners appointed pursuant to section 11"; this refers to the provision of section 11 that "Examiners shall be removable by the agency in which they are employed only for good cause established and determined by the Civil Service Commission *** after opportunity for hearing and upon the record thereof." Proceedings for the removal of such examiners must be conducted in accordance with sections 5, 7 and 8.

3. "Proceedings in which decisions rest solely on inspections, tests, or elections". The reason for the exemption is that "those methods of determination do not lend themselves to the hearing process". Sen. Rep. p. 16; H.R. Rep. p. 27 (Sen. Doc. pp. 202, 261). This exemption is applicable even though a statute requires an opportunity for an agency hearing; thus the words "rest solely" do not mean that the exemption is available only where decisions are based solely upon inspections, tests, or elections, without opportunity for hearing or other proceedings. Rather, "rest solely" appears to mean that the exemption shall apply where all the issues involved in the decision are determined mainly on the basis of an inspection, test, or election. The legislative history of the Act, commencing with the Final Report of the Attorney General's Committee on Administrative Procedure, pp. 36-38, suggests the following as examples of "proceedings in which decisions rest solely on inspections, tests, or elections":

(a) the denial of airman certificates under section 602 of the Civil Aeronautics Act (49 U. S. C. 552) (statute provides for a hearing); Senate Hearings (1941) pp. 602-3;

(b) the denial or revocation of certificates of seaworthiness by local inspectors of the Coast Guard (46 U. S. C. 391); Senate

Hearings (1941) pp. 833-4;

(c) locomotive inspections by the Interstate Commerce Commission (45 U. S. C. 29) (statute provides for a hearing); Senate Hearings (1941) pp. 833-4;

(d) the grading of grain under the United States Grain Standards Act (7 U. S. C. 71 et seq.); Senate Hearings (1941) pp. 833-4.

The rationale for exempting such adjudications from formal procedural requirements was well stated by the Attorney General's Committee on Administrative Procedure in the following passage:

In all these cases, as well as in others not here described, the most important element in the decision is the judgment of the man who saw and tested the ship or grain or fruit or locomotive, or who examined the prospective airplane pilot, or seaman, or proposed periodical. Formal proceedings are not, of course, impossible. A trial examiner could be designated; the inspector could be summoned to testify, under oath, concerning his observations just as a traffic officer who gives a driving test to an applicant for a motor operator's permit could be required to describe the applicant's performance to a second officer who could, in turn, decide whether the permit should be issued. But resort to formal procedure in this type of administrative matter, although sometimes provided for as in certain of the instances noted above, is not desired or utilized by the person whose rights or privileges are being adjudicated, because it gives no added protection. The judgment of the inspector who examined the applicant or tested the article would necessarily remain the determining element in the decision, and, in any event, some immediate decision concerning the fitness of an applicant, or of an airplane, or a locomotive, or a ship, is necessary to protect the public interest. That cannot await a formal hearing. Nor would formal procedure give greater assurance of a correct decision. The surest way to ascertain what is the grade of grain is for a skilled inspector to test it; the best way to discover whether the radio equipment of a ship is in proper working order is for a radio mechanic to examine it and test it. (Final Report, p. 37)

For further legislative history relating to this exemption, see Senate Hearings (1941) pp. 590, 602, 833.

4. "The conduct of military, naval, or foreign affairs functions". Both Committee reports state that the section "exempts military, naval, and foreign affairs functions for the same reasons that they are exempted from section 4; and, in any event, rarely if ever do statutes require such functions to be exercised upon hearing." Sen. Rep. p. 16; H.R. Rep. p. 27 (Sen. Doc. pp. 202, 261). Thus, the exercise of adjudicatory functions by the War and Navy Departments or by any other agency is exempt to the extent that the conduct of military or naval affairs is involved. Senate Hearings (1941) pp. 502-3. The term "foreign affairs functions" appears to be used in the same sense as in section 4. H.R. Rep. p. 27 (Sen. Doc. p. 261).

5. "Cases in which an agency is acting as an agent for a

court". This is self-explanatory. Senate Hearings (1941) pp. 422, 474, 1457.

6. "The certification of employee representatives". This exemption for "the certification of employee representatives such as the Labor Board operations under section 9 (c) of the National Labor Relations Act, is included because those determinations rest so largely upon an election or the availability of an election". Sen. Rep. p. 16; H.R. Rep. p. 27 (Sen. Doc. pp. 202, 261). And see Senate Hearings (1941) pp. 260, 271. It also exempts the certification of employee representatives by the National Mediation Board pursuant to section 2(9) of the Railway Labor Act (45) U. S. C. 152).

SECTION 5(a)—NOTICE

The first sentence of section 5(a) provides that "Persons entitled to notice of an agency hearing shall be timely informed of

(1) "the time, place, and nature thereof". The subsection does not specify the period of notice of hearing to be given by an agency, other than to require "timely" notice. Whether a given period of time constitutes timely notice will depend upon the circumstances, including the urgency of the situation and the complexity of the issues involved in the proceeding. It is clear that nothing in the subsection revokes the specific provisions of other statutes as to the amount of notice which must be given in various proceedings. See generally section 8 of the Federal Register Act (44 U.S.C. 308) and specific statutory provisions such as section 5 of the Federal Trade Commission Act, requiring 30 days' notice of hearing (15 U. S. C. 45). In addition to specifying the time and place of hearing, the notice should specify the nature of the hearing, e.g., whether a cease and desist order should issue.

The last sentence of section 5(a) provides that "In fixing the times and places for hearings, due regard shall be had for the convenience and necessity of the parties or their representatives." This simply means that consistent with the public interest and the due execution of the agency's functions, each agency shall attempt to schedule hearings at times and places which will be convenient for the parties and their representatives. Sen. Rep. p. 17 (Sen. Doc. p. 203).

(2) "the legal authority and jurisdiction under which the hearing is to be held". The notice should contain reference to the