articulate the specific uses to which it will be put, somewhat premature?

Mr. BOYD. No, sir, I don't think so. I doubt seriously that the Board would, had we proceeded on our own, I doubt that we would have felt in a position to commit ourselves under any plan that we had prepared any further than we are on this.

Senator JAVITS. But what you want really and you feel is justified is general authority, but you feel you need, although you haven't any specific application for that, general authority, but that you want to put before us at the moment?

Mr. BOYD. That is correct, sir.

Senator JAVITS. I might tell you that as an analogy, the SEC, whose plan I have studied probably more intimately than the others, has specific areas of delegation which they propose to use. They told us precisely what they wanted to do with the authority. It seems to me, and I would like to support Senator Jackson, we ought to have a pretty good idea as to what you are going to do with this authority before we actually delegate it to you. Now, perhaps you could under the stress of this request develop and present your ideas.

Mr. BOYD. I wouldn't want the record to reflect that we are here barren of ideas, Senator. Our position is rather that we don't want to commit ourselves, and if you desire we would be happy to furnish you with a list of areas in which we would contemplate using this authority.

Senator JAVITS. Let us say in which this authority you believe would be useful.

Mr. BoYD. Yes, sir; I would be happy to do that.

Senator JAVITS. That would bind you even less if you did that. Senator MUSKIE. I would think that request has a great deal of merit also, Mr. Boyd. Why don't you proceed with your statement, and by that time Senator Jackson may be back.

Mr. BOYD. It is important to note that the enactment of Reorganization Plan No. 3 will not only permit a more expeditious handling of the Board's workload, but it will enable the individual Board members to devote more time to major policy and planning. During my tenure as Chairman, I can think of no problem that I have dealt with where there is more agreement than in the need for an all-out planning effort. We have reorganized our staff and have established a planning unit under the immediate supervision of the Office of the Chairman. It is our hope that the Board members themselves will be freed by procedural improvements and delegations to spend greater time on policy and procedural planning and more time on the needs of the industry and the public at large rather than on individual matters. We believe that Reorganization Plan No. 3 will materially assist us in accomplishing this objective.

We have attached as appendix B certain statistical information regarding our workload on cases for the past 5 years. An analysis of the number of cases in which the agency has affirmed, reversed, and modified decisions of its hearing examiners is extremely difficult to prepare due to the very complex nature of the Board's route proceedings. The table which has been submitted, showing the number of applications disposed of during each of the last 5 fiscal years, includes not only matters disposed of after hearing before a hearing

examiner of the Board but also a large number of matters in which no hearing was required.

In the route field covered by applications for certificates or amendments, the table shows the number of applications disposed of by the Board. The route cases, of course, involve a wide area of discretion and broad considerations of public interest, and consequently the area for modification is much greater than in other types of proceedings. A rough estimate of the number of dockets in which the examiner's decision has been followed without modification would be 50 percent. In addition, there are a large number of other instances in which the basic findings of the examiners have been followed but minor variations have been made due to technical problems. In a number of cases, substantial changes have been made in the findings of the examiner.

In disposing of foreign permit applications, the recommended decision of the examiner in this type of proceeding has been sustained in an estimated 95 percent of the cases.

There were an extremely limited number of hearings in the mail rate field, in the interlocking relationship category, and in connection with the airfreight forwarder applications. In those cases in which hearings were held, the initial decision was sustained in approximately 80 percent of the proceedings.

With respect to safety adjudication, appeals from the initial decision was sustained in approximately 80 percent of the proceedings. With respect to safety adjudication, appeals from the initial decisions during the first 4 fiscal years shown in the tabulation amounted to only aout 15 percent of the cases. In 1960 the number of appeals increased to about 25 percent. The examiner was sustained in approximately 75 percent of those cases which were actually appealed to the Board.

In conclusion, Mr. Chairman, I wish to point out that the Board has carefully considered Reorganization Plan No. 3 and that all of the members are in accord in recommending approval. The enactment of this plan will give the Board very complete flexibility with respect to delegating its functions. It would also permit the initial decision of the examiner to become the decision of the Board, subject to discretionary review by the Board. This, in our opinion, will enable the Board to effectively deal with this problem of delay in the administrative process. The Board therefore endorses Reorganization Plan No. 3 and recommends its enactment.

(The attachments to the statement follow :)

APPENDIX A

ATTACHMENT TO CIVIL AERONAUTICS BOARD'S STATEMENT BEFORE THE
EXECUTIVE AND LEGISLATIVE REORGANIZATION SUBCOMMITTEE

Most basically, the Board's functions can be divided into the two categories of internal management functions and regulatory functions. The power to delegate would attach to both categories. However, the greater part of the managerial functions of the Board was transferred to the Chairman by Reorganization Plan No. 13 of 1950, 64 Stat. 1266. This plan transferred to the Chairman "the executive and administrative functions of the Board," subject to the qualifications that the Chairman is to be governed by the general policies and regulatory decisions of the Board, and that appointment of the heads of major administrative units is subject to the approval of the full Board. The function of revising budget estimates and determining the distribution of appropriate funds according to major programs and purposes was left in the Board. The Chairman may

delegate the performance of the functions so transferred to him "to any officer, employee or administrative unit under his jurisdiction." Under Reorganization Plan No. 3, the Board could delegate those internal management functions which Reorganization Plan No. 13 of 1950 did not transfer to the Chairman.

The functions for the performance of which the Board was created may be divided into the two categories of economic regulation of the air transportation industry and of performing certain air-safety functions, including investigation of accidents involving civil aircraft.

The Board's economic regulatory function extends to "air transportation," that is, the carriage of mail and transportation in common carriage by air of persons and property in interstate, overseas and foreign commerce. The privilege of engaging in air transportation is made subject to a license from the Board. The "air carriers" so licensed are subject to Board regulation in the respects set forth below. Certain additional powers of the Board are also related to this function.

The Federal Aviation Act of 1958 authorizes the Board to exercise its economic regulatory functions through adoption of regulations, the making of orders, and the exercise of certain advisory functions. Certain adjudicatory functions, the power to guarantee certain loans, and certain additional advisory functions are contained in different enactments. All of the Board's functions are subject to the provisions of the Administrative Procedure Act as far as these provisions are applicable to such functions by their terms.

The Board's rulemaking function (other than ratemaking) may be exercised pursuant to the provisions of section 4 of the Administrative Procedure Act, without hearing. In connection with its economic regulatory function, the Board issues, and from time to time amends, economic regulations, procedural regulations, special regulations, and policy statements. It should be noted that while most of the regulations regulate the conduct of air carriers, foreign air carriers or other persons, for the purpose of carrying out the Boad's economic regulatory functions, some of these confer operating authority on certain categories of air carriers (pts. 291, 296, 297, 298) while still others exempt certain classes of air carriers from certain provisions of the act (e.g., pts. 225, 289). Apart from the aforementioned instances of regulations which confer operating authority under the exemption power, the Board's function of licensing air carriers to engage in air transportation is carried out through a process of adjudication. The basic license is the certificate of public convenience and necessity issued under section 401 of the act. This provision is supplemented by section 1002 (i) in respect of "through air transportation service." Under a parallel provision, section 402, the Board issues permits to foreign air carriers. The actions of issuing, modifying, suspending or revoking certificates and permits require notice and hearing. However, where such action involves intraterritorial, overseas or foreign air transportation, it is subject to the approval of the President to whom the Board's proposed order, as determined by the Board after notice and hearing, is submitted before publication thereof, section 801.

Within the limitations of section 416 (b) of the act, the Board may also confer operating authority on air carriers by exemption. Indirect air carriers may be exempted from any provision of the act to the extent that this is in the public interest, section 101 (3). Hearing is not required for the exercise of these powers. The Board has ratemaking powers in respect of air carriers and foreign air carriers, although in foreign air transportation these powers are very limited. Apart from the power of rejecting tariffs for noncompliance with form requirements and the power of suspending rates for a maximum period of 180 days pending determination of their lawfulness, which can be exercised without hearing, the ratemaking powers of fixing rates, or maximum and/or minimum rates, or eliminating unduly preferential or discriminatory rates, or passing on the lawfulness of practices affecting rates, are exercised upon notice and hearing (secs. 403, 404, 1002). Similarly, the statutory power of fixing mail rates, which includes the power to determine the rates paid by the Post Office for transportation of mail (service mail rate) and the power to fix a subsidy rate payable out of appropriations made to the Board, is exercised upon notice and hearing.

The Board may form joint boards with the Interstate Commerce Commission. Such joint boards may, after hearing, pass on the lawfulness of joint rates, and related practices, established for through service between air carriers and other common carriers (sec. 1003 of the act).

The Board's power to obtain information from the regulated industry by regulation of air carriers' accounting practices and requiring the retention of documents and the filing of reports (secs. 407 and 415 of the act) is for the most

part exercised by regulation (part 241 et seq.). The exercise of this power by order does not require hearing.

The Board also supervises relations between air carriers to preserve the condition of regulated competition between them which is contemplated by the Congress. The Board's power to permit mergers, acquisitions of control, and transfers of substantial parts of air carriers' properties among air carriers, foreign air carriers, persons engaged in a phase of aeronautics, and other common carriers under section 408 of the act, must, with certain exceptions permitted by Public Law 86-758 of September 13, 1960, be exercised after hearing. The powers of permitting interlocking relationships among air carriers and certain other enterprises through interests of air carriers' officers or directors in such other enterprises (sec. 409) and of approving contracts between air carriers which relate to air transportation (sec. 412) may be exercised without hearing. The power to prevent unfair competitive or deceptive practices in air transportation (sec. 411) is exercised upon notice and hearing.

The Board may also proceed, upon notice and hearing, under sections 2, 3, 7, 8, and 11 of the Clayton Act, where applicable, to prevent certain price discriminations, conditions upon sales, and acquisitions of interests, inimical to the preservation of competition, by the regulated industry. The Board's seldom-used

power to approve or disapprove financial aid from the United States to an air carrier (sec. 410) may be exercised without hearing.

The Board is empowered to guarantee loans to air carriers engaged in local, feeder, or short-haul air transportation (Act of September 7, 1957, 71 Stat. 629). These guarantees may be made without hearing.

Under section 1108(b) of the Act, the Board issues regulations or orders permitting the navigation in the United States of foreign aircraft for purposes other than common carriage. This power may be exercised without hearing.

Certain incidental decisional powers such as review of the Postmaster General's orders on mail schedules under section 405 (b) of the Act; certification to the Postmaster General that a proposed star route does not conflict with the development of air transportation (sec. 6 of the Experimental Air Mail Act as amended, 39 U.S.C. 470); directing staff members to disclose information obtained from examination of an air carrier's records (sec. 902(f) of the Act); decision on whether or not to proceed on complaints (secs. 411 and 1002 of the Act); issuances of subpenas (sec. 1004); decisions on request for confidential treatment of information, section 1104, are exercised without hearing.

The Board also has certain advisory powers related to its economic regulatory functions. Thus under section 802 of the Act the Secretary of State will consult with the Board concerning negotiations of international agreements on air routes and services. Under section 3 of the Federal Airport Act, the Administrator of the Federal Aviation Agency “shall, to the extent feasible, consult and give consideration to the views and recommendations of the Civil Aeronautics Board" in formulating and revising the national airport plan.

The Board's regulations provide for a number of instances where Board approval is required for certain transactions, or where the Board reserves the right to prohibit certain transactions. These incidental determinations are made without hearing.

For the purpose of enforcing the Act and its regulations thereunder, the Board may issue, after hearing, orders requiring compliance with such provisions or prohibiting violations thereof, section 1002 (c) of the Act.

In the field of air safety, the Board performs the function of investigating, and determining the probable cause of, all accidents involving civil aircraft (sec. 701 of the Act). This is a factfinding, not an adjudicatory, function, and the holding of a hearing in the course of the investigation is discretionary with the Board. The Board also makes such recommendations to the Administrator as, in its opinion, will tend to prevent similar accidents (sec. 701(a)(3)). In connection with the exercise of these functions, the Board issues and from time to time amends Safety Investigation Regulations.

The Board may conduct special studies and investigations on matters pertaining to air safety to ascertain what will best tend to prevent accidents (sec. 701 (a) (5)). In air safety rulemaking proceedings conducted by the Administrator of the Federal Aviation Agency, the Board may participate as an interested party (sec. 1001 of the Act).

In cases where the Administrator has refused to issue an airman certificate, or has issued an order amending, modifying, suspending, or revoking any air safety certificate, the Board, upon appeal of any affected person, will, after hearing, make a de novo determination of such matter (secs. 602 and 609 of the Act).

APPENDIX B

TABLE I.-Civil Aeronautics Board-Number of applications, petitions, and other matters received or initiated to which the Administrative Procedure Act is applicable, fiscal years 1956 through 1960

1 The reduction in number of cases shown reflects the change in safety-enforcement cases which was effected by the Federal Aviation Act of 1958. While previously a substantial number of safety-enforcement actions were on a nonhearing basis, under the new act, effective December 31, 1958, all proceedings require formal hearings.

TABLE II.-Civil Aeronautics Board-Number of undecided applications, petitions, and other matters pending to which the Administrative Procedure Act is applicable, fiscal years 1956 through 1960

1 The reduction in number of cases shown reflects the change in safety-enforcement cases which was effected by the Federal Aviation Act of 1958. While previously a substantial number of safety-enforcement actions were on a nonhearing basis, under the new act, effective Dec. 31, 1958, all proceedings require formal hearings.

TABLE III.-Civil Aeronautics Board-Number of applications, petitions, and other matters disposed of to which the Administrative Procedure Act is applicable, fiscal years 1956–60

1 The reduction in number of cases shown reflects the change in safety enforcement cases which was effected by the Federal Aviation Act of 1958. While previously a substantial number of safety enforcement actions were on a nonhearing basis, under the new act, effective Dec. 31, 1958, all proceedings require formal hearings.