(d) It shall be the duty of the chairman of each committee to report or cause to be reported promptly to the House any measure approved by his committee and to take or cause to be taken necessary steps to bring the matter to a vote. (e) No measure or recommendation shall be reported from any committee unless a majority of the committee were actually present.

(f) Each committee shall so far as practicable, require all witnesses appearing before it to file in advance written statements of their proposed testimony, and to limit their oral presentation to brief summaries of their argument. The staff of each committe shall prepare digests of such statements for the use of committee members.

(g) All hearings conducted by standing committees or their subcommittees shall be open to the public, except executive sessions for marking up bills or for voting or where the committee by a majority vote orders an executive session.

(h) Each committee may fix the number of its members to constitute a quorum for taking testimony and receiving evidence, which shall be not less than two. (i) The chairman at an investigative hearing shall announce in an opening statement the subject of the investigation.

(j) A copy of the committee rules, if any, and paragraph 26 of rule XI of the House of Representatives shall be made available to the witness.

(k) Witnesses at investigative hearings may be accompanied by their own counsel for the purpose of advising them concerning their constitutional rights. (1) The chairman may punish breaches of order and decorum, and of professional ethics on the part of counsel, by censure and exclusion from the hearings; and the committee may cite the offender to the House for contempt.

(m) If the committee determines that evidence or testimony at an investigative hearing may tend to defame, degrade, or incriminate any person, it shall(1) receive such evidence or testimony in executive session;

(2) afford such person an opportunity voluntarily to appear as a witness;

and

(3) receive and dispose of requests from such person to subpena additional witnesses.

(n) Except as provided in paragraph (m), the chairman shall receive and the committee shall dispose of requests to subpena additional witnesses.

(0) No evidence or testimony taken in executive session may be released or used in public sessions without the consent of the committee.

(p) In the discretion of the committee, witnesses may submit brief and pertinent sworn statements in writing for inclusion in the record. The committee is the sole judge of the pertinency of testimony and evidence adduced at its hearing. (q) Upon payment of the cost thereof, a witness may obtain a transcript copy of his testimony given at a public session or, if given at an executive session, when authorized by the committee.

APPENDIX II

Outline of Subcommittee Activities

The Special Subcommittee on Legislative Oversight on May 20, 1959, adopted a policy outlining the scope of the Subcommittee's activities. The policy adopted is as follows:

Purposes

To examine the execution of the laws by the administrative agencies, administering laws within the legislative jurisdiction of the parent committee, to see whether or not the law as the Congress intended in its enactment has been and is being carried out or whether it has been and is being repealed or revamped by those who administer it. The Subcommittee will conduct investigations pertaining to the working of these independent regulatory commissions and agencies and pertaining to the adequacy of existing commission and agency laws and regulations and their administration. Such investigations are to assist the Subcommittee in making legislative or other recommendations to the Congress and to the administrative commissions and agencies, and to fulfill the duty of legislative oversight and supervision as provided in the Legislative Reorganization Act of 1946. In pursuance of the foregoing, the Subcommittee will also conduct investigations and make reports concerning matters referred to in the report of the Special Subcommittee on Legislative Oversight, 85th Congress, 2d Session, House Report No. 2711.

Agencies To Be Examined

(1) Civil Aeronautics Board, Federal Aviation Agency, Federal Communications Commission, Federal Power Commission, Federal Trade Commission, Food and Drug Administration, Interstate Commerce Commission, Securities and Exchange Commission;

(2) Bureau of Standards, National Institutes of Health, Weather Bureau; and

(3) Foreign Claims Settlement Commission, Office of Alien Property, Public Health Service, Railroad Retirement Board, and other agencies within legislative jurisdiction of the committee.

Subjects To Be Considered

(1) Review and analysis of the laws and amendments, and intent of the Congress when enacted;

(2) Area of the field regulated by each law, changing circumstances, and growth of the field since enactment;

(3) Consideration of the legislative standards in the law to determine whether they can be drafted in more precise terms with the view of reducing administrative discretion;

(4) Consideration of rules and regulations issued by the agency under the discretionary delegations, reconciliation with statutory standards and legislative intent, manner in which rules have been applied in practice;

(5) Administrative interpretations and practices apart from formal rules and regulations, public notice of such interpretations and practices, extent to which in fact administration is by internal interpretations as distinguished from published rules;

(6) Judicial decisions on the administration of the law by the agency, the statutory standards, rules and regulations, and administrative interpretations, enlargement of area of regulation supported by the decisions;

(7) Enforcement of statute, rules, and regulations; and

(8) Organization of agency:

(a) Independence and bipartisanship of commission, as intended in its creation; identification of the regulators with the regulated;

(b) Personnel: Experience, relationship to agency policy, status under civil service; and

(c) Workload, distribution of personnel as to statutory duties or on duties assumed through administrative interpretations, coordination with State and other regulatory agencies, trade, or industry enforcement groups.

The CHAIRMAN. The 8 days of panel discussion hearings commencing today are part of the subcommittee's investigation and study of the workings of the administrative agencies and the need in the public interest for changes or improvements in the pertinent statutes and regulations and in their administration. The four topics which are to be the subject matter of the hearings have been carefully drafted with these purposes in mind and the discussion and questions to be asked will all be directed toward these objectives. The topics for discussion are as follows:

I. What legislative or administrative measures have been or should be taken to preclude attempts to influence commission members or employees by means which do not afford a fair opportunity to interested persons materally affected by commission action to present their case, and at the same time preserve the necessary access by the commission to information from the public, the regulated industry and others?

II. The role of hearing examiners. Present strengths and weaknesses. What legislative measures should be taken to increase their stature and effectiveness?

III. The role of commissioners and their immediate staffs and agency staffs, and the division of responsibilities. Present

strengths and weaknesses. What legislative or other measures, if any, are needed?

IV. The efficiency of the commissions. What changes, if any, in the existing statutory provisions relating to substance or procedure are needed to enable the commissions to cope with the increasingly enormous volume of business coming before them?

Perhaps, the most important of the four topics is No. I.

A difficult and delicate problem exists in assuring the fairness and impartiality of administrative decisions, and, at the same time, providing the commissions with the necessary access to information from the public, the regulated industry and others.

There is a legitimate need for proper means of communication between agencies and interested persons in the categories mentioned. Information of great value to the agencies is constantly provided them from such sources. Persons in these groups can submit to agencies requests and inquiries which are entirely appropriate and which help the administrative process to serve the public interest. Often by proper ex parte conferences lengthy hearings can be avoided and public interest objectives can be reached more quickly and economically. However, unless caution is constantly observed, such activities can quickly expand to the point where they go beyond the limits of propriety.

A great difficulty lies in drawing clearly and equitably the line of demarcation between proper and improper ex parte contacts. This situation has required the subcommittee to give earnest consideration to the degree of identification of a regulatory agency with those whom it regulates and activities of Government officials which constitute excessive pressure upon an agency. Underlying this problem is the consideration that we must seek to have our independent regulatory commissions operate fairly and efficiently in promoting the public interest and at the same time harmonize the public interest requirements with the rights of individual citizens.

We have had much discussion to the effect that while ex parte contacts are improper in adjudicatory proceedings, nevertheless it is proper for ex parte contacts to be made in rulemaking or legislative proceedings.

In the panel discussion on the administrative process and ethical questions held before the subcommittee November 18 and 19, 1958, we heard testimony that it is difficult, if not impossible, notwithstanding the definitions contained in the Administrative Procedure Act, effectively to draw the line between what is adjudication and what is rulemaking.

Topic No. I has therefore been framed not in terms of adjudication or rulemaking but instead in terms intended to bring out the necessity of balancing the public interest in free access by the commissions to information bearing on the case before it with the rights of the parties to a fair and impartial determination reached in proceedings, wherein all participants have full opportunity of meeting their opponents' case. It is vital to sound administration that the commissions avail themselves of information from all legitimate sources concerning the problems of the regulated industry.

Topic No. I takes cognizance also of the decisions of the Supreme Court on October 20, 1958, and I want to emphasize this, and of the

U.S. Court of Appeals for the District of Columbia Circuit on May 8, 1959, in the Sangamon Valley Television case.

I think it would be well to dwell on that for a moment because of the importance of this particular panel discussion.

An applicant in that rulemaking proceeding before the Federal Communications Commission, as shown by testimony before the subcommittee last year, had engaged in a course of ex parte contacts with members of the Commission. On October 20, 1958, the Supreme Court on the basis of representations in the brief of the Solicitor General, calling attention to the testimony before the subcommittee, granted the petition for certiorari, vacated the judgment of the court of appeals, and remanded the case. We who gave thought and attention to that problem at the time, because of the importance of it, feel that that was a most important decision.

The Department of Justice in its brief before the court of appeals on remand urged that the case be returned to the Commission on the grounds that the ex parte approaches disclosed in our subcommittee hearings (1) violated the rules of procedure of the Commission in the rulemaking proceeding and (2) departed from "the cherished judicial tradition embodying the basic concepts of fair play." The Department expanded on these points.

In support of its second ground the Department urged that—

even were the Commission's procedure silent on this score considerations of basic fairness would require a ban on ex parte pleas in this type of administrative proceeding, involving as it does an allocation of specific channels among several communities, and a resolution of conflicting claims asserted by competing parties in relation to the use of valuable spectrum rights. The need for fairness cannot turn on whether the label “quasi-legislative” or “quasi-judicial” be applied. The outcome of this proceeding, we emphasize, affected particular interests in a concrete, substantial way. *** Where, as here, fundamental fairness requires the consideration and resolution of the subject matter to be conducted on the basis of full, open presentation by the interested parties, no proceeding should be sustained on appellate review where it appears that this basic requirement has not been scrupulously observed. [Italics supplied.]

The Court of Appeals for the District of Columbia Circuit on May 8, 1959, accepted both grounds pressed by the Department of Justice, vacated the Commission order and remanded the case to the Commission for an evidential hearing to determine, among other things, the nature and source of all the ex parte pleas and other approaches involved in this case (Sangamon Valley Television Corporation v. U.S. et al., U.S. Court of Appeals for District of Columbia Circuit). The court of appeals stated:

* "

Interested attempts "to influence any member of the Commission * * except by the recognized and public processes" go "to the very core of the Commission's quasi-judicial powers * (Massachusetts Bay Telecasters v. Federal Communications Commission, U.S. App. D.C., 261 F. 2d 55, 66, 67). That case involved licensing, not rulemaking. Ordinarily allocation of TV channels among communities is a matter of rulemaking, governed by Section 4 of the Administrative Procedure Act, 5 U.S.C., Section 1003, rather than adjudication governed by Section 5, 5 U.S.C., Section 1004. The Commission and the intervenor contend that because the proceeding now on review was "rulemaking", ex parte attempts to influence the Commissioners did not invalidate it. The Department of Justice disagrees. On behalf of the United States, the Department urges that whatever the proceeding may be called it involved not only allocation of TV channels among communities but also resolution of conflicting private claims to a valuable privilege, and that basic fairness requires such a proceeding to be carried on in the open. We agree with the Department of Justice. Accordingly

the private approaches to the members of the Commission vitiated its action and the proceeding must be reopened.

We agree also that the Commission proceeding must be reopened for another reason. Agency action that substantially and prejudicially violates the agency's rules cannot stand. At the time of this proceeding the Commission had no general regulations governing all rulemaking, but when it proposed an allocation of TV channels to particular communities it was its usual practice, followed in this instance, to prescribe a cutoff date before which "Any interested person *** may file with the Commission *** written data, views, or arguments setting forth his comments" favoring or opposing the plan; a cutoff date for "comments on briefs in reply"; and that "No additional comments may be filed" without a request from the Commission or a showing of good cause. By plain implication, this rule forbade submitting material to the Commission's members after the time for filing it with the Commission had gone by. The rule cannot be interpreted to permit parties to make off-the-record contentions that it forbids them to make on the record. [Footnotes omitted.]

At this time I offer for the record a list of the names and addresses of all of the panelists who, in response to the invitation of the Special Subcommittee on Legislative Oversight, will attend and participate in our discussion meetings. I also offer a copy of the Revised Outline of Proposed Panel Discussion, containing a schedule of the meetings, which was sent to each of the panelists. The list of the panelists and this material sent them will be reproduced at the end of the printed record for ready reference purposes.

Today, we have with us representatives of the Civil Aeronautics Board, attorneys practicing before the Board, and officials of companies regulated by the Board. I think at this point it would be well to have the panelists identify themselves for the record, starting with you, Chairman Durfee, and then to your right and then to your left.

MEMBERS OF THE PANEL

CIVIL AERONAUTICS BOARD REPRESENTATIVES: JAMES R. DURFEE, CHAIRMAN; FRANCIS W. BROWN, CHIEF EXAMINER; M. C. MULLIGAN, DIRECTOR, BUREAU OF AIR OPERATIONS; AND FRANKLIN M. STONE, GENERAL COUNSEL

PRACTICING ATTORNEYS: COATES LEAR, JAMES M. VERNER, HOWARD C. WESTWOOD, AND WILLIAM C. BURT, ALL OF WASHINGTON, D.C.

INDUSTRY REPRESENTATIVES: H. TEMPLETON BROWN, UNITED AIRLINES, CHICAGO, ILL.; ANDREW M. DE VOURSNEY, UNITED AIRLINES, CHICAGO, ILL.; AND JOHN C. PIRIE, PAN AMERICAN WORLD AIRWAYS, NEW YORK, N.Y.

Mr. DURFEE. Mr. Chairman, in response to the invitation from you, I believe on May 19, representatives of the Board are here. In a letter we received from you, I believe we were asked to submit a suggested list of participants in this panel discussion of the Civil Aeronautics Board, of representatives of the industry which we regulate, and of attorneys who practice regularly before the Board. We responded to that request with quite a substantial list of suggested names.