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A civilian examiner at one of these ports would not have sufficient adjudicatory work to keep him busy.

It is true that examiners may, under the Administrative Procedure Act, be assigned other duties not inconsistent with their duties as examiners. However, the Coast Guard is a military organization which does not lend itself well to the integration of civilian personnel for the performance of regular Coast Guard activities in the field.

Moreover, there is the problem of securing through the Civil Service examiners who are familiar with merchant marine conditions and practices. A body of such men exists now in the Coast Guard but few of them would want to surrender their commissions to accept civilian examiner appointments. While eventual development of a body of experts in the Civil Service is doubtless possible, it probably would be a slow process. Thus, not only would civilian examiners possess little or no training in merchant marine matters, but they would occupy positions at a salary level comparable to that of a Coast Guard officer of years of experience. It follows that the civilians would not be qualified to perform extra duties of responsibility equivalent to a Coast Guard officer of similar grade.

In compliance with the Administrative Procedure Act, the Treasury Department submitted to the Bureau of the Budget an appropriation estimate of $281,933 for examiners. In view of circumstances which I have described, however, the Budget Bureau decided that, in the interests of efficiency and economy in government, the estimate should be eliminated and an amendment to the Administrative Procedure Act requested. Accordingly, there was substituted for the estimate in the appropriation bill a proposed amendment to section 7 (a) of the Administrative Procedure Act, adding to section 7 (a) the same language now proposed to be added by section 1 of the bill under consideration. This proposed amendment was designed to permit Coast Guard officers to continue to serve as hearing officers as an additional rather than a primary duty. If civilian examiners should be appointed, hearing and deciding cases would need to be their sole or primary function. Testimony on this proposed amendment was given before the Treasury Subcommittee of the House Appropriations Committee (see hearings on the Treasury Department appropriation bill for 1948, pp. 663–667). The Treasury position was explained and it was suggested that the Appropriations Committee might wish to consult with the Judiciary Committee on what should be done in the matter. The Appropriations Committee deleted the proposed exemption, its action being explained as follows in its report (H. Rept. No. 103, 80th Cong., 1st sess., p. 17):

“A proposal of new language for 1948 was incorporated in the Budget estimates designed to amend section 7 (a) of the Administrative Procedure Act of 1946. The effect of the language would have been to permit commissioned officers of the Coast Guard, rather than civilians to conduct hearings connected with the operations of the merchant marine. It was represented to the committee that if this language were approved it would circumvent a future expenditure of upward of $200,000 which otherwise would eventuate, if amendment of existing law does not take place prior to June 11 of this year. The committee has deleted the proposed language from the bill solely because of the fact that it represents a change in existing legislation and hence is without the proper purview of the Appropriations Committee. In making the elimination, however, it is to be understood that the committee neither approves nor disapproves the legislative proposal involved in the proposed change. This is an important matter, and it is to be hoped that the Treasury Department will make prompt representation to the appropriate legislative committee of the House, in order that due consideration can be given to the merits of the proposal prior to the date (June 11, 1948) [this date should read ‘June 11, 1947'] when the provisions of the Administrative Procedure Act become applicable to this question."

It may be worthy of mention that at the time the Administrative Procedure Act became law (June 11, 1946), proceedings under section 4450 of the Revised Statutes were excepted from the requirements that the hearings be conducted by civil-service examiners. I doubt if during thn consideration of the bill that became the Administrative Procedure Act it was contemplated that these examiers would have to be used for the merchant marine hearings. I will try to explain briefly the reason for this.

Section 4450 of the Revised Statutes, and regulations issued thereunder by the Department of Commerce, provided for a marine board, consisting of representatives of the Bureau of Marine Inspection and Navigation designated by the Director of the Bureau, to conduct the disciplinary proceedings leading to the suspension or revocation of licenses or certificates held by merchant seamen. Executive Order 9083 of February 28, 1942, temporarily transferred the functions of the marine board, and of the Bureau of Marine Inspection and Navigation, to the Commandant of the Coast Guard. This transfer was made permanent by Reorganization Plan No. 3 of 1946 (which became effective July 16, 1946), the marine board being abolished. Except for the reorganization plan (which became effective more than a month after approval of the Adminisrative Procedure Act), the disciplinary proceedings would have to be conducted by a marine board, not by civil service examiners, since section 7 (a) of the Administrative Procedure Act expressly states that the act does not supersede the conduct of proceedings by boards specially designated pursuant to statute. The Attorney General, in a statement incorporated in the report of the Senate Judiciary Committee on S. 7 (the bill which became the Administrative Procedure Act), said that the marine investigation boards provided in section 4450 of the Revised Statutes were not superseded. See Senate Report No. 752, Seventy-ninth Congress, first session, page 41.

Section 2 of the bill would amend section 5 (c) of the Administrative Procedure Act to provide that commissioned officers of the Coast Guard who preside at hearings under section 4450 of the Revised Statutes may be subject to the supervision or direction of a Coast Guard district commander for the performance of duties unrelated to proceedings under section 4450 of the Revised Statutes.

This amendment is designed to meet a problem with respect to the separation of functions provisions of section 5 (C) of the Administrative Procedure Act. Section 5 (c) provides, in part, that officers who preside at hearings shall not be “responsible to or subject to the supervision or direction of any officer, employee, or agent engaged in the performance of investigative or prosecuting functions for any agency.” Since Coast Guard district commanders (one is in charge of each of the 14 Coast Guard districts) exercise general supervision over all activities in their districts, including the investigation and prosecution of disciplinary cases, it is believed that they may be investigating or prosecuting officers within the meaning of the act. There is a legal problem as to whether district commanders may supervise the performance of nonadjudicatory functions by officers who also conduct hearings. To meet this problem the Coast Guard has provided, by regulations published in the Federal Register of November 30, 1946, and by appropriate instructions to the field, that officers who hear revocation and suspension cases shall be responsible to the Commandant only. This is not a satisfactory arrangement because (1) the Coast Guard is a military organization for which chain of command is important, (2) in most instances, there are insufficient adjudicatory cases which would require the full time of hearing officers, and (3) efficiency and economy demand that such hearing officers be assigned nonadjudicatory duties, which duties are properly the functions of the district commander. The Treasury Department believes, therefore, that district commanders must have supervision over the performance of the primary or nonadjuicatory duties of officers who would preside at hearings as an additional duty. The Administrative Procedure Act apparently did not contemplate a situation in which the hearing of cases would not be a primary duty. It presumed that the civil-service examiners would be employed to hear cases as their sole or major responsibility.

In conclusion, I should like to say that we hope the committee can give expedited consideration to this measure in order that the Treasury will know where it stands and can make necessary arrangements for the conduct of hearings after June 11, 1947. If the committee should decide that the Administrative Procedure Act should not be amended as proposed, but that the Coast Guard hearings should be conducted by civil-service examiners, it is hoped that the committee will assist the Treasury to the extent of providing us with a statement of its wishes in the matter in order that app priate representations may be made to the Appropriations Committee to provide funds for employment of the civilian examiners.

Mr. GRAHAM. Thank you. The hearings will be closed. (Whereupon, at 11:35 a. m., the hearings on H. R. 2966 were closed.) CONDUCT OF DISCIPLINARY HEARINGS BY COAST


MONDAY, MAY 19, 1947



Washington, D. C. The subcommittee met, pursuant to call, at 10:00 a. m., Hon. Louis E. Graham (chairman) presiding.

Present: Representatives Graham (presiding), Keating, and Hobbs.

Mr. GRAHAM. The subcommittee will be in order. This is a further hearing on H. R. 2966, called to take the statements of Representative Walter, of Pennsylvania, and of Representative Gwynne, of Iowa. Proceed, Mr. Walter, please.



Mr. WALTER. Mr. Chairman, starting in 1936, intensive studies were made by a subcommittee of the Committee on the Judiciary on the question of enacting a law that would apply equally to all administrative agencies of the Government. At the completion of these studies it was decided that there were certain functions of the Government that ought not to come within the purview of such a law, with the result that when the bill in 1938 was reported to the Congress it contained seven or eight exceptions. Those of us who were interested in administrative procedure did not like the idea of being.unable to write a uniform law that would apply equally to all of the agencies.

Subsequently, when President Roosevelt vetoed the administrative procedure bill and we were unable to pass it over his veto, studies were continued by not only the Committee on the Judiciary of the House but by the Judiciary Committee of the Senate; by a committee appointed by the Attorney General of the United States on which were the best legal minds available; and the American Bar Association erected a special committee on administrative procedure. All of these committees adduced testimony in order to examine carefully into the functions of every agency of the Government. Volumes of testimony were adduced by the Attorney General's Committee covering every one of the myriad agencies of the Government, after which these committees endeavored to draft uniform legislation).

It was very significant that during the course of the hearings on the old Walter-Logan bill, the first attempt to reform the procedure, each of the agencies without exception testified that the bill was a good

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bill, that its objecives were correct and proper, but that it ought not apply to their own particular agency.

Now, during my connection with this problem, which has been for a period of upwards of 10 years, I have found that in almost every agency at some time or another the rules of the game are written in order to meet a particular situation. I am not talking about star-chamber proceedings; I am not talking about the vice connected with having the prosecutor and the judge being one and the same person; but I am talking about difficult situations where, in order to bring a particular case into the yardstick erected by a commission, the rules are changed so that equity is an unknown word. It always reminded me of the old formed actions at the common law which, of course, brought out our system of equitable jurisprudence.

These several groups charged with the responsibility of devising a uniform law finally recommended to the Congress legislation that could and does apply to every agency of the Government. I realized at the time the biĩl was signed by President Truman that sooner or later some attempt would be made to whittle away the Administrative Procedure Act.

I have discussed the operation of this act with the Attorney General, and he tells me that no agency is experiencing difficulty; that is, no more than the difficulty encountered when an innovation takes place. This law that Mr. Gwynne and I have worked upon for so long has proven to be successful; and that is because great care was given in the formation of the law.

Now, among the most vociferous of the critics of the original WalterLogan bill, the administrative procedure bill, were the people who are today endeavoring to amend the law.

I just do not like this attempt to take from under the law a particular agency. Let this happen, and tomorrow you will have next the Securities and Exchange Commission, and the next day the Federal Communications Commission, and the next day another commission, and so on, ad infinitum. Once you have taken out from under the operation of this law one of the agencies you are going to extend an invitation to every other one to write its own rules for the operation of its own agency.

For many years the bar and people who have business with the Government have felt that they ought to know just exactly what the rules are, and that they ought to know those rules in advance.

In the Administrative Procedure Act, as you know, we start out with information, full and complete information concerning every ruling and every regulation, and from there on the pattern for the operation of each agency is the same, with respect to hearings, with respect to interdepartmental review, and subsequently the opportunity to have the cause reviewed in a court and decision reached on substantial evidence rather than on a mere scintilla—as is so frequently the case in the decisions of the agencies—and then the appeal to the appellate court.

Now, why should this particular agency find it so impossible to function under the act? Can it be their unwillingness to change their procedure to meet the basic law? Or is it because they do not want to give to the citizens of the United States an opportunity to have their disputes with the Government disposed of according to a pattern that all of the best legal minds in America feel is the correct one? I do not know the answer. But I sincerely hope that this committee reports this bill adversely.

And, if there is to be an amendment to the Administrative Procedure Act, let it be an amendment that will apply to all agencies. If there is anything in the law today that is unworkable—and I say that there is not—but if there is, then let us examine into what part of the law is unworkable and then amend it so as to make the rules the same for every particular agency.

I think that is all I want to say, gentlemen. I thank you very much.

Mr. GRAHAM. Thank you, Mr. Walter. Do you care to make any comment on this request for deferment? [handing document to Mr. Walter]. Mr. WALTER. I do not see any reason why there should be any

deferment whatsoever.

Mr. KEATING. I understand their reason for asking it is this: They explained in their testimony that they had not made provisions for appropriations to handle this work. It is claimed that it would cost about $280,000 to have it handled by a civilian agency under the administrative procedure law and that they would have to include that figure in their appropriation. In fact, they did so, and when they got before the Appropriations Committee a question was raised. I believe that is the situation.

Mr. GRAHAM. Yes; that was his argument.

Mr. KEATING. Also, that there would be a very substantial saving in expense by doing it his way. That was one of his main arguments. Then, he said that there was some kind of a deadline. Now, Mr. Chairman, I do not remember what that was.

Mr. GRAHAM. It is in here [handing document to Mr. Keating]. Mr. KEATING. Yes. He says:

I should like to state that the Treasury Department and the Coast Guard consider this a very urgent matter, because on and after June 11 under the Administrative Procedure Act it will be necessary for these hearings to be conducted by civil-service examiner.

They go on to say by reason of the fact that the law might be changed they have made no financial provision for them to be handled that way, and now it is pretty short notice for them to do so. Do you have any further comment about that?

Mr. WALTER. No, except this, that they have known ever since the law was enacted what was to be expected of them. They have not made any attempt to work out the procedure because they just never liked the law and felt that, by stalling around until this late date, they could be excepted from the operation of the act.

Mr. GRAHAM. Since the closing of the last hearing we have received a telegram and a letter which I will read into the record. (The letter and telegram referred to are as follows:)


NEW YORK 5, N. Y., 12 May 1947. HON. LOUIS E. GRAHAM, Committee on the Judiciary,

House of Representatives, Washington, D. C. DEAR CONGRESSMAN GRAHAM: It is our understanding that a bill, H. R. 2966, to amend the Administrative Procedure Act to authorize commissioned officers of the Coast Guard to preside at the taking of evidence in proceedings under R. S. 4450, as amended, and for other purposes, is before your committee for consideration.

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