1Any of the requirements of section 8 may
be waived by the parties. Sen. Rep. p. 28 (Sen. Doc. p. 209).
2As here used, presiding officer
means the member of the agency, the examiner appointed pursuant to section 11, or the special
statutory board or hearing officer who conducted the hearing. See section 7(a). Where the presiding
officer become, unavailable as by illness or leaving the agency. the agency may direct another
hearing officer to make an initial or recommended decision, or it may issue a tentative decision, or
it may order a rehearing.
3It is to be noted that in
"proceedings involving the validity or application of rates, facilities, or practices of public
utilities or carriers" (if they do not constitute either rule making or the determination of an
application for an initial license), an Intermediate (i.e., "initial" or
"recommended") decision must be made by the hearing examiner who conducted the
hearing or by some other officer or officer. qualified to preside at hearings pursuant to section 7(a).
4It is important to note that section
10(c) permits an agency to require parties to appeal from hearing officers' initial decisions to the
agency as a prerequisite to obtaining judicial review. Such a requirement must be set forth in a
published rule which must further provide that the hearing officer's Initial decision shall be
inoperative pending the agency's review of the case. Sen. Rep. p. 27, H.R. Rep. pp. 43, 56, fn. 21
(Sen. Doc. pp. 218, 277, 289).
5See Final Report, p. 52: "The
Committee strongly urges that the agencies abandon the notion that no matter how unspecified or
unconvincing the grounds set out for appeal, there is yet a duty to reexamine the record minutely and
reach fresh conclusions without reference to the hearing commissioner's decision. Agencies should
insist upon meaningful content and exactness in the appeal from the hearing commissioner's decision
and in the subsequent oral argument before the agency. Too often, at present, exceptions are blanket
in character, without reference to pages in the record and without in any way narrowing the issues.
They simply seek to impose upon the agency the burden of complete reexamination. Review of the
hearing commissioner's decision should in general and in the absence of clear error be limited to
grounds specified In the appeal."
6See Morgan v. United
States, 298 U.S. 468, 481 (1936): "Argument may be oral or written."
7Agencies should keep in mind that
pursuant to section 3(b) they may cite as precedents only such previous orders and opinions as have
been published or made available for public inspection.