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The CHAIRMAN. I am afraid we are going to have to go to the floor of the House. I have not consulted with my colleagues, but we shall have to recess now subject to call at a future date.
We are very much obliged to all of you. We are sorry that the committee is unable to remain longer today, but there is much work that we must all attend to now. We cannot say when we will conclude or continue the hearings, but you will be notified.
(The list of parties for whom Mr. W. E. Rosenbaum speaks is as follows:)
STATEMENT SHOWING LIST OF PARTIES FOR WHOM MR. W. E. ROSENBAUM SPEAKS
Charles E. Blaine, American National Live Stock Association, Phoenix, Ariz.
Charles B. Bowling, Warren H. Powell, George D. Schuler, Jr., Howard D. Bergen, Transportation Rates and Services Division, Office of Marketing Facilities, War Food Administration, Washington, D. C.
(At 11.: 15 a. m. the committee adjourned subject to the call of the chairman.)
(NOTE.—It was later determined that no further hearings would be APPENDIX
[H. R. 184, 79th Cong., 1st sess.)
A BILL To revise the administrative procedure of Federal agencies; to establish the
Office of Federal Administrative Procedure; to provide for bearing commissioners; to authorize declaratory ruling by administrative agencies; and for other purposes
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act, divided into titles and sections according to the following table of contents, may be cited as the "Administrative Procedure Act of 1941":
TABLE OF CONTENTS TITLE I-GENERAL PROVISIONS AND OFFICE OF FEDERAL ADMINISTRATIVE PROCEDURE Sec. 101. Declaration of general policy. Sec. 102. Definitions. Sec. 103. Delegation of authority. Sec. 104. Right to counsel. Sec. 105. Office of Federal Administrative Procedure. Sec. 106. Advisory committees. Sec. 107. Duties of the Director.
TITLE II-ADMINISTRATIVE RULE MAKING Sec. 201. Rules and other information required to be published.
(1) Internal organization and structure.
(2) Publication of policies, interpretations, and rules.
TITLE III-ADMINISTRATIVE ADJUDICATION
(1) Hearing commissioners.
(9) Powers of provisional and temporary hearing commissioners. Sec. 303. Hearings of cases.
(1) Hearing before hearing commissioner.
(1) Powers at hearing.
(4) Hearing commissioner's decision.
(1) Power to hear cases.
(3) Agencies where no chief hearing commissioner.
(1) Certification of existence of novel or complex questions.
(3) Opportunity to present argument. Sec. 308. Effect of decision of hearing commissioner.
(1) Finality when no appeal taken or review ordered.
(2) Reopening of hearing commissioner's decision. Sec. 309. Review of hearing commissioner's decision by agency tribunal.
(1) Assignment of errors on appeal.
(2) Powers of agency tribunal on appeal.
TITLE IV-DECLARATORY RULINGS
Sec. 401. Power to issue rulings.
TITLE 1-GENERAL PROVISIONS AND OFFICE OF FEDERAL
SEC. 101. DECLARATION OF GENERAL POLICY.—The exercise of all administrative powers, insofar as they affect private rights, privileges, or immunities, should be effected by established procedures designed to assure the adequate protection of private interests and to effectuate the declared policies of Congress. While procedures should be adapted to the necessities and differences of legislation and of the subject matter involved, they should in any event be made known to all interested persons. Administrative adjudication should be attended by procedures which assure due notice, adequate opportunity to present and meet evidence and argument, and prompt decision.
SEC. 102. `DEFINITIONS.-As used in this Act
(a) “Agency” means any department, board, commission, authority, corporation, administration, independent establishment, or other subdivision of the executive branch of the Government of the United States which is empowered by law to determine the rights, duties, immunities, or privileges of persons, other than persons in their capacity as employees of the United States, by the making of rules and regulations or by adjudications which are unreviewable except by the courts. Where the context warrants, "agency" means more particularly the officer or group of oflicers within an agency as above defined who are not subordinate or responsible to any other officer therein.
(b) “Agency tribunal” means the officer or group of officers within an agency whose decisions in adjudication are unreviewable except by the courts.
SEC. 103. DELEGATION OF AUTHORITY.-(a) Subject to such supervision, direction, review, or reconsideration as it may prescribe, every agency or agency tribunal is authorized to delegate to its responsible members, officers, employees, committees, or administrative boards power to manage its internal affairs; to dispose informally of requests, complaints, applications, and cases; to issue complaints, show-cause orders, or other moving papers; and to govern matters of preliminary, initial, intermediate, or ancillary procedure.
(b) Every agency tribunal having more than a single member may delegate to one or more of its members, subject to reyiew or reconsideration by it, the power to decide cases after hearing or on appeal.
(c) Where the ultimate authority in any agency is vested in a single indi. vidual, he may delegate any of his powers of final adjudication to one or more agency tribunals with such membership as he may prescribe.
SEC. 104. Right to COUNSEL.—Every person appearing or summoned in any administrative proceeding shall be allowed the assistance of counsel.
SEC. 105. OFFICE OF FEDERAL ADMINISTRATIVE PROCEDURE.—(1) There shall be appointed by the President, by and with the advice of the Senate, an officer to be known as the Director of Federal Administrative Procedure (hereafter referred to as the Director), who shall hold office for the term of seven years or until a successor has been appointed, and shall receive an annual salary of $10,000.
(2) There shall be at the seat of government an establishment to be known as the Office of Federal Administrative Procedure composed of the Director, a justice of the United States Court of Appeals for the District of Columbia designated by its chief justice, and the Director of the Administrative Office of the United States Courts, who shall serve without extra compensation.
(3) The Director shall have authority to appoint, without regard for the provisions of the civil-service laws, an executive secretary and such attorneys, investigators, and experts as are deemed necessary to perform the functions and duties vested in the Director and Ofice of Federal Administrative Procedure, and he shall fix their compensation according to the Classification Act of 1923, as amended. The Director shall appoint such other employees with regard to existing laws applicable to the appointment and compensation of officers and employees of the United States, as he may from time to time find necessary.
SEC. 106. ADVISORY COMMITTEES. — (1) The Director shall designate from time to time, as occasion requires, the administrative establishments of the United
(2) Each: agency so designated shall from time to time name one of its members or officers to serve as an adviser to the Office of Federal Administrative Procedure and the Director.
(3) From the representatives of the agencies so named the Director shall constitute such advisory committee or committees as he may deem helpful, and may add to them additional officers of the Government or members of the public.
(4) It shall be the duty of each agency promptly to furnish the Director all information which he may request and to assist him by all possible means. The Director, in the performance of his duties, is authorized to utilize, with the consent of any agency, the personnel or facilities of that agency, and may utilize any other uncompensated personal services or facilities.
Sec. 107. DUTIES OF THE DIRECTOR.—The Director shall
(1) Conduct such inquiries into the practices and procedures of the agencies as he may deem necessary, with a view to securing the just and efficient discharge of their respective responsibilities;
(2) Make such recommendations and transmit such information to the agencies as may facilitate the uniform adoption, wherever feasible and appropriate, of those practices, procedures, and methods of organization which have proved most satisfactory;
(3) Receive complaints regarding the procedure of particular agencies, investigate those which appear to be made in good faith, and report thereon to the complainants and to the agency concerned, recommending to the agency any measures which seenf to the Director desirable to correct deficencies;
(4) Examine the practices of the several agencies with respect to the giving of publicity to matters pending before them; and recommend rules to simplify and unify to the fullest practicable extent existing provisions which govern utilization of answers and other pleadings; issuance of subpenas; taking testimony by deposition; content, cost, and availability of transcripts of records ; introduction of documentary evidence; standards of proof; requests for findings of fact; exceptions to findings; oral arguments; and rehearings;
(5) Investigate the admission to practice before the several agencies, in order to determine whether it can be centralized and controlled, with a view to ninating needless delay and duplication in authorizing members of the bar to appear before agencies; regularizing the circumstances in which others than members of the bar may properly so appear; and developing adequate mechanisms for disciplining or disbárring from further practice before the agencies those whose conduct has shown them to be unworthy ;
(6) Perform, with other members of the Office, the duties relating to the appointment and removal of hearing commissioners prescribed by this Act;
(7) On or before the 1st day of December in each year, transmit to the President and the Congress a report of the work of the Office during the past year, together with any recommendations relating to the practices and procedures of the agencies which the Director may deem appropriate. The report shall also record the names and qualifications of all hearing commissioners appointed since the last report, and the circumstances regarding any proceedings for the removal of hearing commissioners.
TITLE II-ADMINISTRATIVE RULE-MAKING SEC. 201. RULES AND OTHER INFORMATION REQUIRED TO BE PUBLISHED.—(1) INTERNAL ORGANIZATION AND STRUCTURE.—Every agency shall promptly make available and currently maintain a statement of its internal organization, insofar as it may affect the public in its dealings with the agency, specifying (a) its officers and types of personnel ; (b) its subdivisions; and (c) the places of business or operation, duties, functions, and general authority or jurisdiction of each of the foregoing.
(2) PUBLICATION OF POLICIES, INTERPRETATIONS, AND RULES.-All general policies and interpretations of law, where they have been adopted; rules, regulations, and procedures, whether formal or informal; prescribed forms and instructions with respect to reports or other material required to be filed, shall be made available to the public.
SEC. 202. FORMULATION OF RULES.—Every agency shall designate one or more units, committees, boards, officers, or employees to receive suggestions and expedite the making, amendment, or revision of rules, subject to the control and supervision of the agency.
SEC. 203. EFFECTIVE DATE OF RULES.—No regulation hereafter promulgated by an agency shall take effect until forty-five days after the date of its initial pub
Mr. WALTER. That is at the top of page 3, column 2.
Mr. AITCHISON. S. 7. Now I shall mention just some practical difficulties about that for your consideration, for whatever they may be worth little or nothing, possibly,
Mr. WALTER. If that language "rate making," then, were included, you would have nothing to object to?
Mr. AITCHISON. I think I will ask that the language be further clarified in respect to some matters I will bring to Your Honor's attention in just a moment, because it seems to me obvious that rate making is anomalously included under the term "rule making" when the rate is not a rule. It is just a matter of English. But passing all that, now, we make rates for the future; we make rates for the past; we fix rates as reasonable in the past. We are performing these the function of a common-law jury.
Of course, our orders are only prima facie evidence and the matter has to go before a jury if there is more than $20 in dispute. I refer, of course, to reparation cases. But it is clear and it is well worked out by Justice Roberts in the Arizona Grocery case—Arizona Grocery Company v. Atchison, l'opeka & Santa Fe,that the Commission acts in the one case, when it reviews these past rates, in a quasi judicial capacity and, for the future, it is performing a legislation act.
Now, I have no objection to your calling that a rule, Congressman Walter. Pardon me for addressing you personally, but you raised the question yesterday with respect to whether or not, after all, we did not have controversies between A and B concerning a rate and whether C could not later come along with another case.
Assume we find in the case of A versus B Railway Company that the rate is unreasonable; as was held by the Supreme Court of the United States in A. J. Phillips & Co. v. Grand Trunk Western Railway, anybody can take advantage of that finding, whether a party to the proceeding or not, and there we are acting with respect to a past rate. I would like to ask if you cannot clarify that for us.
The word "order" as we find it a little later seems to go back to the original idea of the Attorney General's Committee and the American Bar Association, that "rule" is a legislative matter of general applicability, while "adjudication” refers to particular matters. Yet when the revised section 2 (c) puts rate making in with rule making, even such matters as our shortened procedure cases which are tried virtually on affidavits where there is no hearing at all; the hearing is dispensed with-all those things, that sort of procedure against one carrier with respect to one commodity from one point to another point—all of those things become rule making and are governed by principles which apply when we are laying down a legislative rule for the future.
It does not seem to me that is good administration. The term lacks precision to those of us who are going to be compelled to administer this law. Does it mean only rates for the future, these cases I have mentioned, as was held in Baer Bros. y. Denver & Rio Grande Railway (233 U. S. 479)—that rates for the future and for the past may legally be brought together before the Commission and disposed of upon the same petition? That rule is settled. But when we do that with respect to the past and substitute ourselves for a common law jury, is it an adjudication, or rule making; or is it rate making! I