(c) Should the right to exercise such discretionary review be declined, or should no such review be sought within the time stated in the rules promulgated by the Board, then the action of any such division of the Board, individual Board member, hearing examiner, employee or employee board, shall, for all purposes, including appeal or review thereof, be deemed to be the action of the Board. [S. Res. 148, 87th Cong., 1st sess.] RESOLUTION Resolved, That the Senate does not favor the Reorganization Plan Numbered 1 of 1961 transmitted to Congress by the President on April 27, 1961. [S. Res. 142, 87th Cong., 1st sess] Resolved, That the Senate does not favor the Reorganization Plan Numbered 2 of 1961 transmitted to Congress by the President on April 27, 1961. [S. Res. 143, 87th Cong., 1st sess.] Resolved, That the Senate does not favor the Reorganization Plan Numbered 3 of 1961 transmitted to Congress by the President on May 3, 1961. [S. Res. 147, 87th Cong., 1st sess.] Resolved, That the Senate does not favor the Reorganization Plan Numbered 4 of the 1961 transmitted to Congress by the President on May 9, 1961. SENATE COMMITTEE ON GOVERNMENT OPERATIONS, Staff Memorandum No. 87-1-15: May 12, 1961. Subject: Reorganization Plan No. 1 of 1961, providing for reorganization in the Securities and Exchange Commission; Reorganization Plan No. 2 of 1961, providing for reorganization in the Federal Communications Commission; Reorganization Plan No. 3 of 1961, providing for reorganization in the Civil Aeronautics Board; Reorganization Plan No. 4 of 1961, providing for reorganization in the Federal Trade Commission. Reorganization Plans Nos. 1 and 2 were submitted by the President to the Congress on April 27, 1961. Reorganization Plan No. 3 was submitted on May 3, and Reorganization Plan No. 4 on May 9, 1961. Unless disapproved by a majority vote of either House of Congress, plans Nos. 1 and 2 will become effective on June 26, plan No. 3 on July 2, and plan No. 4 on July 8, 1961. PURPOSE OF THE PLANS All four plans seek to attain the same objective and are essentially identical, except that, in the case of plan No. 2, provision is made for certain statutory abolitions, which are necessary to accomplish the objectives sought. According to the President's messages transmitting the plans, their principal objective is to relieve the commissioners or board members (as the case may be) from the necessity of dealing with numerous matters of lesser importance, thus conserving their time for the consideration of major matters of policy and planning. Under existing law, they are required to devote the great bulk of their time to hearings, determinations, and review of both regulatory and adjudicatory matters. In his general message on regulatory agencies transmitted to the Congress on April 13, 1961 (H. Doc. No. 135, 87th Cong.), to which he makes reference in each of the messages accompanying the subject reorganization plans, the President made the following statement: "*** The reduction of existing delays in our regulatory agencies requires the elimination of needless work at their top levels. Because so many of them were established in a day of a less complex economy, many matters that could and should in large measure be resolved at a lower level required decision by the agency members themselves. Even where, by the force of circumstances, many of these matters are now actually determined at a lower level they still must bear the imprimatur of the agency members. Consequently, unnecessary and unimportant details occupy far too much of the time and energy of agency members, and prevent full and expeditious consideration of the more important issues. "The remedy is a far wider range of delegations to smaller panels of agency members, or to agency employee boards, and to give their decisions and those of the hearing examiners a considerable degree of finality, conserving the full agency membership for issues of true moment. Such delegation would not be an abnegation of responsibility if the agency retained a discretionary right of review of all such decisions, exercisable either upon its own initiative or upon the petition of a party demonstrating to the agency that the matter in issue is of such substantial importance that it calls for determination at the highest agency level. (Nothing in such a procedural change would, of course, disturb the existing rights of a party to seek judicial review of administrative action)." PROVISIONS OF THE PLANS Section 1 of each of the plans would permit each of the agencies concerned, by published order or rule, to delegate any of its functions to subordinate divisions, individual Commissioners (or Board members, in the case of plan No. 3), hearing examiners, employees, or employee boards. This authority to delegate would be subject to the provisions of section 7(a) of the Administrative Procedure Act of 1946, as amended, which provides, in effect, that, where the organic statute of an agency requires that regulatory or adjudicatory matters may be decided only upon a written record, after a public hearing, these functions must be performed by the full agency, one or more members thereof, or a qualified hearing examiner appointed in accordance with that act. The functions which may be delegated include hearings, determinations, orders, certifications, reports, and all other work or business of the agency. In each plan, each commission or board retains the right to review the decision, report, or certification of any subordinate to whom authority has been delegated, either upon its own initiative or upon the petition of a party or inter-venor demonstrating to the satisfaction of the agency the desirability of having the matter reviewed at the top level. However, this right of review is made discretionary with the agency, and unless the agency desires to review on its own motion, no review may be had, except by a vote of a majority of the agency, less one member. In the case of the Securities and Exchange Commission, the Civil Aeronautics Board, and the Federal Trade Commission, two votes would be required; in the case of the Federal Communications Commission, three votes would be required. Under all four plans, in the event that the agency declines to exercise discretionary review, or if no review is sought within the time required by the agency rules, then the action of any of the subordinates to whom the agency has delegated its functions is final and shall, for all purposes, including appeal or review, be deemed the action of the agency. Section 2 of all four plans deals with the transfer of functions to the chairman. Although its provisions are not entirely clear, it appears to vest in the chairman of each of the agencies the authority to assign the personnel who will perform the duties of the agency which have been delegated to various subordinate levels, pursuant to section 1. Plan No. 2 also contains two additional provisions relating to the abolishment of certain statutory requirements and staff which are provided for by existing law. Under section 409 (b) of the Communications Act of 1934, as amended, in all adjudications cases, hearing officers are required to file an initial decision, except under certain circumstances, and the Commission is required to permit any party to the proceeding to file exceptions to the initial decision and to hear oral argument on such exceptions, on request, prior to the entry of any final decision or order. In effect, this provision makes mandatory oral argument before the Commission on exceptions to the hearing officer's decision. In order to give effect to the substitution of discretionary review by the Commission, as provided by the plan, for the mandatory review now required by statute, a proviso in section 1(a) of plan No. 2 abolishes the functions of the Commission with respect to permitting the filing of exceptions to decisions of hearing examiners and the function of hearing oral arguments on such exceptions prior to the entry of final decisions or orders. Section 3 of plan No. 2 abolishes the review staff created by section 5(c) of the Communications Act of 1934, as amended, together with its functions, and authorizes assignment of the employees of such staff as the Commission may designaté. The review staff is composed of technically qualified personnel whose sole responsibility is to assist the Commission in cases of adjudication which have been designated for hearing, by preparing for the Commission a summary of the evidence presented at any such hearing, and, subsequently, after an initial decision certain other materials specified in the statute, and as directed by the Commission. According to the President's message, these functions can be better performed by the Commissioners themselves, with such assistance as they may desire from persons they deem qualified. ACTION ON EARLIER REORGANIZATION PLANS In 1950, the President transmitted to the Congress reorganization plans on each of the agencies involved in the current proposed reorganizations. Plans No. 8 (FTC), No. 10 (SEC), 11 (FCC), and 13 (CAB) of 1950 proposed the transfer of all administrative and managerial functions within each of the agencies to the chairman and, in the case of plan No. 10, provided for his appointment by the President, rather than by the Commission. Plans Nos. 8, 10, and 13 went into effect in May 1950; plan No. 11 was rejected in the Senate by a vote of 50 to 23 on a resolution of disapproval. STATUS According to information received by the staff, there is some opposition to plan No. 1 (SEC), and the Federal Communications Bar Association has requested an opportunity to be heard in opposition to plan No. 2 (FCC). The Senate Committee on Commerce has referred plan No. 2 to its Subcommittee on Communications, which has scheduled hearings on the plan for May 23, 1961. Resolutions (H. Res. 285, H. Res. 286, H. Res. 287, and H. Res. 288) to disapprove each of these plans were introduced in the House of Representatives on May 10, 1961, and hearings on plans Nos. 1, 2, and 3 have been scheduled by the House Committee on Government Operations for May 19, 1961. Resolutions (S. Res. 142 and 143) to disapprove plans Nos. 2 and 3 were introduced in the Senate on May 11, 1961. Should the House of Representatives approve any of these resolutions, it will not be necessary for this committee to take any action with respect to the plans affected thereby. Approved: WALTER L. REYNOLDS, Chief Clerk and Staff Director. ELI E. NOBLEMAN, Professional Staff Member. SENATE COMMITTEE ON GOVERNMENT OPERATIONS, Staff Memorandum No. 87-1-30 June 2, 1961. Subject: Reorganization Plan No. 5 of 1961, provided for reorganization in the National Labor Relations Board. Reorganization Plan No. 5 was submitted by the President to the Congress on May 24, 1961. Unless disapproved by a majority vote of either House of Congress, it will become effective on July 23, 1961. PURPOSE OF THE PLAN According to the President's message transmitting the plan, the principal objective of plan No. 5 is to relieve the members of the National Labor Relations Board from the necessity of dealing with numerous matters of lesser importance, thus conserving their time for the consideration of major matters of policy and planning. Under existing law, they are required to devote the great bulk of their time to hearings, determinations, and review of both regulatorý and adjudicatory matters. Plan No. 5 is identical to section 1 of plans Nos. 1, 2, 3, and 4 of 1961, details of which are set forth in full in staff memorandum No. 87-1-15, dated May 15, 1961. PROVISIONS OF THE PLAN Plan No. 5 would permit the National Labor Relations Board, by published order or rule, to delegate any of its functions to subordinate divisions, individual Board members, hearing examiners, employees or employee boards. This authority to delegate would be subject to the provisions of section 7(a) of the Administrative Procedures Act of 1946, as amended, which provides, in effect, that, where the organic statute of an agency requires that regulatory or adjudicatory matters may be decided only upon a written record, after a public hearing, these functions must be performed by the full agency, one or more members thereof, or a qualified hearing examiner appointed in accordance with that act. The functions which may be delegated include hearings, determinations, orders, certifications, reports, and all other work or business of the agency. As in the other reorganization plans of 1961, the National Labor Relations Board would retain the right to review the decision, report or certification of any subordinate to whom authority has been delegated, either upon its own initiative or upon the petition of a party or intervenor demonstrating to the satisfaction of the Board the desirability of having the matter reviewed at the top level. However, this right of review is made discretionary with the Board, and unless the Board desires to review on its own motion, no review may be had, except by a vote of a majority of the Board, less one member. Since the Board is composed of five members, the votes of two members would be required for review. In the event that the Board declines to exercise discretionary review, or if no review is sought within the time required by the Board's rules, then the action of any of the subordinates to whom the Board has delegated its functions is final and shall, for all purposes, including appeal or review, be deemed the action of the agency. According to information furnished by a member of the Board (copy attached), under existing law, a party seeking review of a trial examiner's findings takes exception to such findings in broad and conclusionary language. This requires the Board to examine the entire record which is a very time consuming procedure. The effect of plan No. 5 would be to require the party seeking review to show the Board by specific reference to the record and citation of applicable law that review of the trial examiner's findings is warranted, and it confines the issues only to those items of evidence referred to. Thus, if such a party has not been able to show specifically where the trial examiner erred, there would be no review by the Board. On the other hand, if he is able to persuade two members of the Board that there are substantial grounds for review, or that novel or policy questions are raised, the Board would grant review. STATUS To date, the committee has received no indication of opposition to plan No. 5, and no resolution of disapproval has been filed with respect thereto in the Senate. However, House Resolution 322 to disapprove plan No. 5 was filed in the House of Representatives on June 1, 1961. The Chairman and the General Counsel of the Board have requested an opportunity to be heard in support of the plan and they are scheduled to testify at the hearings which will be held on June 6 and 7 when the committee will hear testimony concerning the resolutions of disapproval of plans Nos. 1, 2, 3, and 4. The Chairman, the General Counsel and all members of the Board were requested to submit their views and recommendations to the committee prior to the scheduled hearings, to be held on June 6 and 7. No reply has been received to date, except for the letter set forth below from Mr. Boyd Leedom, member of Board and former Chairman, in support of plan No. 5. The chairman of the Senate Committee on Labor and Public Welfare has also been requested to give the committee the benefit of the views and recommendations of that committee for committee consideration. "Hon. JOHN L. MCCLELLAN, "NATIONAL LABOR RELATIONS BOARD, "DEAR SENATOR MCCLELLAN: I favor Reorganization Plan No. 5 of 1961. "The most significant and desirable result of the plan, in my judgment, would be the change from a procedure granting review of the trail examiner's findings automatically to one that places the burden on the parties seeking review to establish that the trial examiner's findings merit review. Under the present method, it is sufficient that the parties seeking review take exception to the trial examiner's findings by referring in broad and conclusionary language to matter being relied upon to indicate a contrary result. Adequate treatment of such exceptions often calls for a perusal of the entire record, and, especially |