I am trying to understand now where we get to and I am not expressing an opinion with respect to the plan. I want to support anything that I think will expedite the work of these agencies. I am not opposing the plan, you understand, but I am trying to clarify these matters. Here is an aggrieved party and the authority has been delegated to the hearing examiner; he hears and he makes a decision, a ruling. The aggrieved party says "that is wrong; I ought to have that reviewed." He appeals to the Board and the Board says, “We are not even going to look at it."

Mr. LANDIS. Well they certainly would look at his petition.

The CHAIRMAN. Well, they look at his petition, but they they say this only involves so and so and that is too unimportant for us to fool with. That is not reviewing it on its merits.

Mr. LANDIS. Not necessarily reviewing it on its merits, no. I quite agree this is not a review on its merits; it is a review to determine whether there should be a review on the merits.

The CHAIRMAN. I just want to get the record straight so I understand it.

Mr. LANDIS. I might point out that in no way do any of these plans affect the right to judicial review from any action of the Commission. The CHAIRMAN. I can appreciate, Mr. Landis, that there are instances where the matter is so trivial that it may be unreasonable for an aggrieved party to impose upon the Commission and to take up a lot of time. I realize that. It is a delicate thing to know where to draw the line to protect the rights and see justice can be done.

Mr. LANDIS. The plans are flexible in that, for example, the Commission of seven could set up a panel of two or three if they felt that they should review a case.

The CHAIRMAN. They could do that? They can set up a panel of one or two to review it?

Mr. LANDIS. Yes, they can do that.

The CHAIRMAN. I would think in most instances, speaking for myself, in most instances they ought to have at least one or two Commissioners look at it.

Mr. LANDIS. One other feature of the plan is the fact that the Chairman of the Commission is given the authority to deploy the personnel of the Commission. In other words, if a certain class of cases is to be referred to two Commissioners instead of to the Commission as a whole, the deployment of the personnel is put into the hands of the Chairman. This has been criticized in some of the hearings on the grounds that it puts too much power in the Chairman. I just can't see that that criticism is a significant one. The deployment of personnel has to be flexible and somebody has to take on that chore.

Now with reference to these specific plans, there are slight variations in them and they are tailored to the necessities of the particular Commission that is involved. The Communications Act of 1934, for example, as distinguished from, we will say, the Securities Act for the Securities and Exchange Commission, contains a certain amount of procedural matter. For that reason, provision is made to dispense with these procedural obstacles to the adoption of the plan.

For example, in section 409 (b) of the Communications Act there is a provision which automatically gives a mandatory right of review from the hearing examiners' decisions in adjudicated cases. Well, their

function in this regard is abolished by a provision in section 1 of plan No. 2.

Another feature of section 1 of plan No. 2 is that it also abolishes the so-called review staff that was established in the 1952 amendments to the Communications Act of 1934. This does not mean that there can be no review staff but in the 1952 amendments there were certain restrictions placed upon the use of that review staff which destroys, to a certain degree, its flexibility, its force, and its purpose. I haven't even seen much objection to the abolition of that review staff. In fact, in the House committee hearings it was indicated by the Subcommittee on Communications that they themselves were in favor of the abolition of the review staff, as such.

Plan No. 3, dealing with the Civil Aeronautics Board, did not require any changes from the overall scheme of the plans. Plan No. 4, dealing with the Federal Trade Commission, also required no particular tailoring and it is, generally speaking, the same as the other plans. Plan No. 5, dealing with the National Labor Relations Board, has one variation in it. It does not contain the section 2 of the other plans which transfers the deployment powers to the Chairman. This would be unnecessary in the case of the National Labor Relations Board because of the nature of its organization. Other than as specified, the plans follow the same general pattern. I think their impact with regard to the various agencies will be considerably different.

Listening to the testimony that I have listened to in many of these hearings and also after considering the functions of these various commissions, I think the plan will be very, very useful to the Securities and Exchange Commission where a great many acts which are not of an adjudicatory character are required to be accomplished by the Commission as a whole. I should estimate that on the average, the Commission, for example, has to deal as a commission with some 20 to 30 so-called orders for acceleration of the registration schedule. Now that takes a considerable amount of time and by delegating that kind of work to a commissioner or a panel of commissioners, the Commission itself could be considerably relieved of some of its duties and the SEC is a Commission that is thoroughly overworked. I mean I' know that as a personal matter. I have known most of the men that served on that Commission and I know that they are an overworked group and the problems which I see face them for the future call for a considerable amount of thinking, studying, and planning because, the nature of our securities markets are changing almost daily.

With regard to the Federal Communications Commission, I think the plan there will primarily be to advantage with regard to a series of adjudicatory matters. There are many minor matters connected with either extensions of time or the change or some variation in the issuance of radio and television licenses.

With regard to the Civil Aeronautics Board, there are certain cases that I think could very well be dealt with under the plan. For instance, in many cases in which foreign-flag carriers are authorized to conduct certain operations, there is really no contest at all. The determination has really arisen as a result of treaty negotiations and the air treaty that preceded it, and so it becomes a fairly routine matter. Where it isn't routine, of course, the Commission can reach

in and take over the matter and have it considered by the Board as a whole.

With regard to the National Labor Relations Board, I think the plan has a great deal of merit. The backlog of cases before the Board is, I think, the highest in its history. These cases, perhaps more so than the cases coming before the Federal Trade Commission or the Federal Communications Commission, really call for dispatch in determination. Delay there is really a denial of justice in many, many situations.

Now the National Labor Relations Board has already taken certain steps to speed it processes in accord with its powers under the National Labor Relations Act. It has delegated the determination of representation cases to its regional directors, which it is entitled to do, but it cannot delegate the unfair labor practice cases to any level that is lower than that of the Commission. Certainly in the case of the National Labor Relations Board the volume is so intensive that delegation of some kind is essential. Also, in many cases the hearing examiner is the only one that can really make the determination because he is the person who has to pass upon the credibility of the evidence, and I think it would be very easy to deal with petitions for review coming up under the National Labor Relations Board procedure, inasmuch as the fact issues are really not decided again by the Board. Usually the only questions that really come before the Board involve issues of law and of policy as they appear in those

cases.

In conclusion, I would say, Mr. Chairman, that it is difficult to try and deal with the delays that characterize the disposition of business by our regulatory agencies. These plans may work-I hope they will work. The attitude, I think, of most of the regulatory agencies is a belief that they will work.

There are other things, of course, that have to be done in order to deal with this overall problem of delay, but it does seem to me that a very distinct step can be made by the adoption of these various plans. The CHAIRMAN. Thank you very much, sir.

One or two questions: Do you think that it is proper to delegate rulemaking powers to the staff?

Mr. LANDIS. I would say normally not, but rulemaking is such a very, very broad concept that a certain amount of it could easily be delegated to a board of employees or the like.

For example, one of the agencies here that perhaps goes in for rulemaking to a greater degree than any other agency is the Securities and Exchange Commission and their rules are covered in minutia of detail, detail as to the size of the paper upon which a registration statement has to be filed, details as to the quality of the papers, as to the number of statements that have to be filed, etc. They are rules. Now the delegation of these determinations, subject to the general supervision of the Commission, doesn't seem to me to be wrong.

The CHAIRMAN. They would always retain the supervisory power of the Commission to nullify or change any rule or veto any rule that the subordinate makes?

Mr. LANDIS. Yes, and if anybody is distressed by any rule, why a petition to review can be filed with the Commission and I just don't see much chance of abuse in that kind of delegation. I don't see much use of it in what we normally call the rulemaking function,

but rulemaking under the Administrative Procedure Act is such a broad concept that things that you and I would not normally think of as being rules become rules by virtue of definition. Orders with regard to rates, minor things of that nature, are probably rules under the Administrative Procedure Act and delegation of matters of that nature seem a desirable thing.

The CHAIRMAN. One other question. There is some concern expressed that these plans would actually, by vesting greater powers in the Chairman, also tend to place greater power and control in the White House. People are concerned and want these agencies to remain independent agencies. There is some concern expressed that these plans may give the White House greater control over these agencies if the President chooses to exercise it. Now, what are your comments about that?

Mr. LANDIS. I find it difficult see how that could result. No dele-. gation can be taken under these plans except by a majority of the Commission and the only power that the Chairman is given under these plans that he doesn't possess or perhaps doesn't possess today is picking the fellow commissioners or a board of employees or something like that to handle the kind of matters that have been delegated by rule to those individuals. Furthermore, if he does delegate, the minority of the Commission can always bring that matter to the attention of the Commission as a whole.

We

The CHAIRMAN.. That could be a pretty important power. notice our Supreme Court frequently divides about four to five. Now if I were the Chief Justice of the Supreme Court, just using this as an illustration, or Chairman of a Commission, and I wanted to delegate something to someone, assign it to somebody to handle, why I would have a pretty good opinion, on the merits of the issues involved, as to which one of the Commissioners maybe or members of the Board or which member of the staff I would want to assign it to. Do you think that might enter into some consideration here?

Mr. LANDIS. I doubt it very much. Actually, of course, the assignment of opinions in the Supreme Court is done now by the Chief Justice. It is not done in rotation. He picks the various individuals. The CHAIRMAN. Well, that is to write an opinion.

Mr. LANDIS. That is to write the opinion. It is not the same kind of thing. I mean there the judgment has really been made before the assignment takes place, but this kind of thing is commonly done in many courts today, for example, in New Jersy. The chief justice of New Jersey has the task as regards the assignment of judges for various different actions. I can't see that there is much chance of abuse here.

The CHAIRMAN. I am not necessarily expressing my own views, but I am trying to make this record, and while you are present here to give you the opportunity to refute or to point out what you conceive to be maybe undue concern about such matters. I have heard some talk of that and I was a little concerned about the effect of this-putting a lot of power in the Chairman and possibly giving an entree for the White House to intervene and have things done their way, thus destroying or impairing the independent action of the Board. I don't know just how they rationalize to arrive at that conclusion exactly, but there has been some expression along that line and I thought while you were here, since I understand you are largely the author of these

plans, that you ought to be given the opportunity to make any comment that you felt proper and ought to be made in these areas.

Mr. LANDIS. Mr. Chairman, no power can be granted to any individual without there being a potentiality of abuse. But the safeguards that have been written into these plans are such that the chances of abuse seem to be very, very negligible and they can, of course, always be corrected by a minority standing firm on its rights.

The CHAIRMAN. As I understand it now, the Chairman is assigning these matters. Can he also direct the place where the hearings should be held and impose other conditions or restrictions or directions, may I say, in connection with the whole proceedings?

Mr. LANDIS. Not by virtue of anything that is contained in these plans. He may by virtue of the basic legislation that is already in existence, but certainly there is no grant of any power of that nature in these plans.

The CHAIRMAN. There is no such extraordinary powers conferred by these plans?

Mr. LANDIS. No.

The CHAIRMAN. Whatever power he now has under existing law, he would still have? The plans would take no powers away?

Mr. LANDIS. That is right.

The CHAIRMAN. It only enlarges the power in certain areas?
Mr. LANDIS. In this one area, that is all.

The CHAIRMAN. And that after the Commission itself, as I understand it, approves or delegates the power to it; is that correct?

Mr. LANDIS. Only then, only after the Commission has approved the delegation can he then name the

The CHAIRMAN. The naming of the individuals there is left to his discretion, but the Commission has to grant it?

Mr. LANDIS. That is right.

The CHAIRMAN. Senator Gruening, any questions?
Senator GRUENING. I have no questions.

The CHAIRMAN. Senator Javits may want to ask you some questions. He had to go to another committee, I understand, for a vote, but in the meantime we have here Senator Case of South Dakota. Senator Case, I believe you are the author of one of the resolutions or two of them, are you not?

Senator CASE of South Dakota. I introduced one and Senator Mundt is cosponsoring it, and am cosponsor with Senator Mundt on the second one.

The CHAIRMAN. The committee welcomes you and we are all vitally concerned, one Senator as much as another. The committee members may have a little more direct and immediate responsibility for processing these plans, but since you are the author of a resolution of disapproval, Senator Case, the Chair, with the approval of the committee, is going to extend to you the courtesy, if you care to, to interrogate the witnesses as they appear. If you have any questions therefore, you may now ask the witness, if you desire.

Senator CASE of South Dakota. Thank you very much, Mr. Chairman.

I would like to present a statement with respect to the resolutions introduced, but in view of your invitation I would like to comment on two points that have just come up in your colloquy.