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(Prepared statement of Mr. Durfee is reproduced at the end of the Civil Aeronautics Board discussion.)

Mr. DURFEE. First, with reference to the role of commissions, I would like to refer to two pages of my statement which I think succinctly express the most important area that I find in the role of the commission.

The rapid development of the regulatory agencies and the tremendous growth of administrative law has been described by the courts as perhaps the most significant legal development of this century. With this tremendous development there has certainly developed a great deal of confusion.

First, as to the role of the independent regulatory commissions and commissioners, for example, I find some confusion in the role of the Civil Aeronautics Board because of the six independent regulatory commissions that are supposed to be here. We are not even defined as a commission, nor am I defined as a commissioner. This is a board, and I am a member of a board.

I know of no reason for the distinction and I would suggest that, in the interests of uniformity of treatment when you are going to talk about commissions and commissioners, the members of this Board might as well be called commissioners if that is what everybody else is going to be called.

It is going to be more convenient around Washington and around town because people don't know what to call me. Sometimes they know what they would like to call me. However, even in learned dissertations on administrative law, there is a tendency to consider all boards, all commissions, and all administrative Federal agencies together, whether they are independent regulatory agencies, such as the six agencies who are here before this committee, or whether they are simply ministerial or administrative agencies of the executive branch of the Government.

To talk about administrative agencies, there is the old and oftrepeated question-what was the difference between the CAB and CAA? Simply put, the difference was that CAB was a quasi-legislative, quasi-judicial agency of the Congress and the CAA was an administrative executive agency of the Department of Commerce in the executive branch.

I find that even the Curtis report, which was submitted to the President, on aviation facilities, referred to the Civil Aeronautics Board as a part of the executive branch of the Government, which I think was a confused statement. Simply put, the role of a commissioner primarily is that of an agent of the Congress, responsible directly to the Congress, and it is in that role that we are here today.

The CHAIRMAN. You do not consider you are part of the executive then?

Mr. DURFEE. No, sir.

The CHAIRMAN. Neither do I.

Mr. DURFEE. I think I have already pointed out to this committee at length the qualifications attached to that in the area of international negotiations, but I will let my statement stand.

Commissioners, as agents of the Congress, have a dual role, generally described as quasi-legislative or quasi-judicial, and in the quasijudicial role they adjudicate much as a judge, and in the quasi

legislative or rulemaking role, they act much as a legislator or a

congress.

This dual responsibility results in difficulties such as were already discussed by our general counsel as to ex parte communications.

A large part of this difficulty, Mr. Chairman, stems first from the confusion between the various types of executive and regulatory agencies to which I have referred, lumping them all under administrative agencies; and from the quasi-judicial and the quasi-legislative role of the commissioners themselves.

Perhaps in the interest of brevity I have oversimplified the distinctions and differences which must be considered. I am sure our general counsel would say I have oversimplified it.

However, I am sure the committee is well aware of these differences and distinctions.

I would suggest that one thing this committee might well consider is to attempt to resolve this existing confusion between independent regulatory agencies as you recognize them here today and other administrative agencies of the Government, and also the role of commissioners themselves within this area of the independent regulatory agency and the role of our staffs as contrasted with other administrative agencies.

I think that this committee would be well advised and well qualified to make this distinction clear and apparent, because the very area of ex parte communication and everything else we are talking about depends on drawing the distinction clearly as to what kind of an agency you are talking about when you talk about ex parte communications.

Mr. Chairman, that is the only reference I will make to my written statement, which has been offered for the record.

Yesterday we raised a couple of questions that I do wish we had more time for the type of discussion we had yesterday.

The CHAIRMAN. Go ahead if you think it is important.

Mr. DURFEE. I mean the interchange of opinion, which I think was very valuable, between the members of this committee and everyone on this panel.

I don't want to hold the floor too long, but I will refer to the question of oral argument that was raised at the outset by Mr. Lear, oral argument by Members of Congress of the proceedings.

In the first place, Mr. Lear has an appeal pending before the circuit court of appeals, and if the circuit court of appeals says that this is an illegal procedure, then the matter is disposed of and we have no problem. If the court says that it is legal, that it is not a violation of due process or any other legal principle, then I believe that the Board or this committee might well consider whether it would be advisable to adopt some procedural rules as to appearances by Members of the Congress.

One, I think they should be entitled to appear.

May I point out to this committee, for example, in the 7-States-area case involving local service and subsidy to 7 contiguous States, there were 112 parties in that action, and the ultimate job of the Board is to decide the public interest involved, not for 3 or 4 adverse parties, but 112 parties of record.

Every one of these issues involved the public interest which perhaps existed in a particular State or in a particular congressional district, and in that area I know of no person who is better qualified to speak on the question of the public interest involved in that area, whether it be a State or a congressional district, than the man whom the people of that area have chosen as their spokesman.

I think it is indispensable to the Board that we have the benefit of this type of representation. Apparently there is some question as to the manner in which this is being presented.

If the committee wants to address itself to this by legislation, certainly that is well and good. If the committee wants to give us some ground rules, either by legislation or in a report as to what restraints you think we should adopt, I can assure you that the Board will give this careful consideration and that with the incentive which has already been supplied by this discussion, we will take some further procedural steps.

The CHAIRMAN. Had you every thought about holding a special day for the Members to present such views so that they would not interfere with the time allocated for those participating?

Mr. DURFEE. In allocating time it is generally understood that the first day or the first presentation will be by Members of the Congress, and they speak consecutively. We have not attempted to limit their time and I would say that very few of them have transgressed in that area.

However, I think we have done that already. We may not have assigned a day, but it is generally understood that the Representatives of the Congress speak for their congressional districts, and at least it has this merit, that what they say is said in open court and it is subject to rebuttal by the parties who then have the opportunity to answer the argument.

Mr. FLYNT. Mr. Durfee, I would like to clear up this point.

There was some question raised yesterday that the time taken by Members of Congress takes away from the time granted to counsel and advocates for litigants and contestants. Is the time given to the Members of Congress used in addition to or in lieu of the time that would normally be granted to litigants?

Mr. DURFEE. At the present time it is in addition to, Mr. Flynt. The argument is made that if a Congressman appears in behalf of what is obviously the interest of a party, for example, an airline or a community, his time should be charged to that party, but at the present time we do not do that.

Mr. Moss. Mr. Chairman, is it not true that while the Member may be appearing in support of an applicant's case, he is appearing in or on behalf of the public interest of his district?

Again, in a case which you mentioned yesterday by United, in my opinion, had there been 10 applicants for the third route into San Francisco, I would not have tried to urge one over the other, thinking that the interest to me and my colleagues was that San Francisco be given additional service. The fact that it may have supported the position of the American was not the reason we were there; so there is a public interest, I think, usually by the Member of the House who appears on this matter.

The CHAIRMAN. Mr. Derounian.

Mr. DEROUNIAN. Mr. Chairman, on page 6 of your statement, you talk of the workload of the Board and that sometimes it is difficult to get a quorum of three.

Does that mean that you have a suggestion to make to correct that situation?

Mr. DURFEE. The workload of the Board?

Mr. DEROUNIAN. Yes.

In other words, do you think the Board ought to be increased in size from its present size?

Mr. DURFEE. As long as I am permitted to make an individual expression of the opinion with which some of the members of the Board disagree, but as long as it is understand I am expressing my personal opinion, and the Board has agreed to this, I would say I suppose every agency thinks it has unique problems, but in considering the workload of the Board we have, No. 1, the conduct of international negotiations for international air routes.

And, first, the Board itself consults with the carriers and with the State Department and all parties affected, but in the negotiations themselves we usually delegate one member of the Board to conduct those negotiations. This involves a very substantial amount of time and may involve his absence for 2 or 3 weeks or a month in another country where the negotiations may be going on.

Secondly, in the area of accident investigations, in an important accident it has become the practice, and I think there has been some insistence, that a member of the Board actually act as the presiding officer of that accident investigation.

At the present time, to illustrate another facet, Senator Gurney is in San Diego at a meeting of the International Conference of Aviation Organizations, the ICAO. He will be there 2 weeks.

It is necessary for representatives of the Board to participate in meetings of the Air Coordinating Committee, the coordination of aviation. The result is, Mr. Derounian, with five members, at times we do have extreme difficulty in keeping a quorum within the agency to do business from day to day, particularly if we have had added to that the illness or unavoidable absence of a member.

My own opinion is, I think this committee might well consider the advisability of enlarging the size of the Civil Aeronautics Board, first, so that we can have more assurance that we will always have a quorum; secondly, so perhaps we could in some manner comparable to the Interstate Commerce Commission divide the work of the Board into panels.

For example, I think the field of international negotiations might very well be assigned a panel of three members of the Board, subject to review by the Board in the same way the Interstate Commerce Commission does its work.

The CHAIRMAN. Before you leave that, does that mean that you are recommending that we possibly consider increasing it to nine members?

Mr. DURFEE. I wouldn't say any more than that. I would say seven or nine.

The CHAIRMAN. You mentioned three members of the Board panel. I did not know how you divide yours into three.

Mr. DURFEE. I think under the idea of a panel, a member does not spend all his time in one panel. He can interchange from one panel

to the other, but the panel necessitates only three members at one time. I think we could interchange.

The CHAIRMAN. Go ahead.

Excuse me, Mr. Derounian.

Mr. DEROUNIAN. On page 6, you talk about the separation of functions and one of the weaknesses you point out is that

The staff units are prohibited from ex parte contact with the members. Will you explain what the means?

Mr. DURFEE. Mr. Derounian, maybe the best explanation for the separation of functions is the separation of functions which is required under the Administrative Procedure Act, section 5 (c), separation of functions, which requires:

No officer, employee or agent engaged in the performance of investigative or prosecuting functions for any agency in any case shall, in that or a factually related case, participate or advise in the decision, recommended decision, or agency review pursuant to section 8 except as witness or counsel in public proceedings.

This means that, for example, in the general passenger fare investigations instituted by the Board in 1956 in which we assigned the Bureau of Air Operations the duty of presenting what the Board thought would be the Bureau's conception of the public interest involved in this proceeding; it virtually means that the entire Bureau of Air Operations in the field of this investigation of general passenger fare investigations is isolated completely from the Board. The Board does not have access to the expertise of the Bureau counsel who represents the Bureau in this proceeding. The Board does not have access to the experts who testified in that proceeding for the Bureau, because of the separation of functions in the Administrative Procedure Act.

And I might add that I think the Board has gone even further than is required in the Administrative Procedure Act. We have leaned over backward to make sure that there be no criticism that any party in our staff who is involved in a case, Bureau counsel, witness, adviser, or consultant then could go to the Board with an ex parte or in a Board meeting and not in an open proceeding have access to and advise the Board.

My point is, when you consider what we have been talking about, the judicialization of this process, this takes time and it takes money, and it takes a lot of effort, because in the general passenger fare investigation it has resulted in us virtually eliminating the Bureau of Air Operations, the expertise of this Bureau, in assisting the Board in arriving at its conclusion in this tremendously important case.

About the only place we can go is to our office of carrier accounts and statistics for statistical information.

Mr. DEROUNIAN. You think the law ought to be changed in that respect?

Mr. DURFEE. I certainly don't think it should be made any more rigid than it is now, and that seems to be a very serious proposal in some quarters.

Mr. DEROUNIAN. Thank you, Mr. Chairman.

Mr. PIRIE. Mr. Chairman.

The CHAIRMAN. Mr. Pirie.

Mr. PIRIE. I am very pleased to hear Chairman Durfee say that the separation of functions is being applied to the general passenger

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