directly or indirectly have an effect of modifying the job which the radio and television stations can do or the controls which might be placed over them should be very, very carefully considered by Congress when considering specific legislation, rather than what I have termed "blank check" procedures such as are proposed here. The CHAIRMAN. All right, you may proceed. As previously noted, the plan provides for divisions or boards of commissioners. The plan also would abolish the review staff provided for by section 5(c) of the Communications Act, and would assign the staff's functions to the Commissioners. There may be considerable merit to each of these proposals. The association recommends that any such changes be considered in the form of proposals to amend the Communications Act. The work of Congress should not be set aside without more careful and thorough consideration by Congress after appropriate hearings. There has been some legislation introduced recently by Chairman Harris and the Federal Communications Commission working on legislation to submit, also at the request The CHAIRMAN. They oppose them for different reasons. Mr. BOOTH. Yes, we have a different approach to it, sir. There is no doubt but that the Commission's procedures can be improved so as to relieve the Commissioners from the necessity of dealing with many matters of lesser importance and thus conserve their time for the consideration of major matters of policy and planning which is the objective stated by President Kennedy. The Federal Communications Bar Association most firmly believes the stated objective can and should be achieved within the framework of the Communications Act and the Administrative Procedure Act. The association stands ready, willing, and able to assist the President, the Congress, and the Commission in achieving the objectives of Reorganization Plan No. 2 by appropriate legislation. The association appreciates the opportunity to appear before this committee and stands ready to assist in any way possible. The CHAIRMAN. Thank you, Mr. Booth. Senator Muskie, any questions or comments? Senator MUSKIE. No questions. The CHAIRMAN. Thank you very much for your presentation. I think you have raised some thoughts and points which we shall surely consider. We have one witness scheduled to be heard this afternoon and we have arranged to held this hearing in the Office of the Secretary of the Senate, right off the floor, at 2 o'clock. We will be having the hearing there. So you will let the witnesses know. Thank you very much. The committee stands in recess until 2 o'clock. (Whereupon, at 12 noon, the committee recessed until 2 p.m. the same day.) AFTERNOON SESSION The CHAIRMAN. The committee will come to order. Mr. Boyd, will you identify yourself for the record, please, sir? Mr. BOYD. Yes, Mr. Chairman, I am Alan Boyd, Chairman of the Civil Aeronautics Board. I am accompanied today by Mr. John Warner, General Counsel of the Civil Aeronautics Board. The CHAIRMAN. John Warner? Mr. BOYD. Yes, sir. The CHAIRMAN. All right. Mr. BOYD. And Mr. Ross Newman, Associate General Counsel of the Civil Aeronautics Board. The CHAIRMAN. Very good. All right, do you have a prepared statement, Mr. Chairman? Mr. BOYD. Yes, sir. The CHAIRMAN. Would you wish to submit it for the record and let it be printed in the record in full at this point and highlight it, or do you prefer to read it? Mr. BOYD. I would prefer to read it, if it is all right with you, sir. It is a rather short statement. The CHAIRMAN. Very well. You may proceed with your statement. STATEMENT OF ALAN S. BOYD, CHAIRMAN, CIVIL AERONAUTICS BOARD, ACCOMPANIED BY JOHN WARNER, GENERAL COUNSEL, AND ROSS NEWMAN, ASSOCIATE GENERAL COUNSEL, CIVIL AERONAUTICS BOARD Mr. BOYD. We appreciate very much being able to appear and testify in support of Reorganization Plan No. 3. Section 1 of Reorganization Plan No. 3, would authorize the Board to delegate any of its functions to a division of the Board, an individual Board member, a hearing examiner, or an employee or employee board. Such delegation would be subject to a discretionary right of review by the Board upon its own initiative or upon the petition of any party or intervener within such time and in such manner as the Board by rule shall prescribe. The vote of a majority of the Board less one member would be sufficient to bring any such action before the Board for review. The CHAIRMAN. How many members are on the Board? The CHAIRMAN. That would be two members. Mr. BOYD. Nothing in the plan shall be deemed to supersede the provisions of section 7(a) of the Administrative Procedure Act. Section 2 would transfer from the Board to the Chairman the functions of the Board with respect to the assignment of Board personnel, including Board members, to perform such functions as may have been delegated by the Board to Board personnel, including Board members, pursuant to section 1 of the plan. During the past several years, one of the most serious problems confronting the Board has been the delay in our administrative process. On numerous occasions, we have testified before committees of Congress on this subject, stating that ways and means must be found to expedite the handling of the Board's workload. As this committee is aware, the increased workload thrust upon the Board by the rapid growth of the air transportation industry has been very substantial. In this connection, I would like to point out that during the past 20 years, air transportation has progressed from a small industry to a point where it is now a vital factor in the overall economy of this Nation. To give you some idea of the tremendous growth of this industry, it is interesting to note that in 1938, when the Civil Aeronautical Act became law, scheduled air service was available on a limited domestic network to some 112 million passengers. The scope of our oversea and foreign operations were even more limited, with no service being conducted over the North Atlantic trade route to Europe, and only one service across the Pacific to the Far East. Last year the certificated carriers transported nearly 58 million passengers, surpassing the railroads and motor carriers in total passenger traffic. Internationally, air transportation is now the predominant mode of travel with U.S.-flag carriers providing round-the world competitive service. During this developmental period, we have seen the introduction of entirely new concepts in air transportation-local air service to some 400 towns and cities in 48 States, all-cargo service, supplemental air carrier service, helicopter service, freight forwarder service, and air taxi service. I mention these developments because the introduction and regulation of these activities has created important additional responsibilities for the Civil Aeronautics Board. The Board has been well aware of the need for action to eliminate causes of delay and to cut down the backlog of cases that have been accumulated. "We have attempted to meet the problem by reorganizing our staff, reassigning the duties and responsibilities of our personnel, and adopting procedures designed to simplify and expedite Board actions. We have also made some delegations of authority, mostly in connection with routine matters on which Board policy has been firmly established. Our efforts in this area, however, have been limited because the Board has no express statutory authority to delegate its functions. Reorganization Plan No. 3 is sufficiently broad to cover all matters-adjudicatory and quasi-legislative and therefore should provide the necessary flexibility to expedite the handling of the Board's workload. In order to assist the committee, we have attached as appendix A a statement outlining the various functions and responsibilities of the Civil Aeronautics Board. Obviously many of these matters which are now being handled by the Board members could and should be resolved at a lower level. While time has not permitted the finalization of a plan to implement Reorganization Plan No. 3, I would like to make some general observations. The Board would expect to delegate certain types of cases which require hearing before an examiner as well as nonhearing cases. In most categories of cases, particularly those requiring hearing, the Board may wish to limit its delegation to routine or simple cases. The use of employee boards presents a number of advantages. While the Board has had no experience with employee boards, it would appear that their use may consume considerable time of highlevel employees. We would thus utilize this type of delegation with considerable caution. The Board must also weigh the degree of delegation in relation to the experience and capability of the delegates. For example, delegation to senior staff employees, such as bureau and office heads, would permit a greater degree of delegation by the Board but might have the effect of making the delegatee unavailable for other purposes. The CHAIRMAN. You have got your point right there. You are going to set up a group of employees and delegate authority to them to make decisions and resolve issues that come up in litigation? Mr. BOYD. We have no plans of any kind. The CHAIRMAN. Isn't that what all this means? Mr. BOYD. I think it is possible within the purview of the plan; yes, sir. The CHAIRMAN. Now, who would these appointees be? Are they going to be people, maybe civil service people? Mr. BOYD. Yes, sir. If we were to get to the stage of setting up employee boards, they would have to be civil service. The CHAIRMAN. Let me ask you this a little further: Very great interest is involved in some of these decisions? Mr. BOYD. The Board decisions, I think, command a great deal of interest; yes, sir. The CHAIRMAN. Is there any decision of the Board now, any function of the Board that you cannot delegate under this plan? Mr. BOYD. Under plan 3? The CHAIRMAN. Yes. Mr. BOYD. No. As I understand it, the Board can delegate anything that it can do itself. The CHAIRMAN, Does that mean-I am trying to understand this now-I absolutely make no commitment one way or the other at all. I am trying to understand. Does that mean the Board can employ some 8 or 10 people or 4 or 5 people, name them, and constitute them a trial board, and delegate to them all the authority that they have under this act to make a decision in a given case? Mr. Boyd. I think that is certainly possible under this plan; yes, sir. The CHAIRMAN. Now, let me ask you: They would not be confirmed by the Senate, yet your Board members are confirmed? Mr. BOYD. That is right, sir. The CHAIRMAN. Do you think that is a healthy program, speaking on the basis of principles of government? Do you think that is a healthy thing? Mr. BOYD. Well, if I can answer your question this way, Senator, I don't think it would be healthy if that were to be done. However, in view of the fact that the President has appointed and the Senate has confirmed some very fine members of the Civil Aeronautics Board, I am sure you would anticipate a sense of responsibility on the part of the Board members. The CHAIRMAN. I don't know; the Board members have the same access to powers of investigation and inquiry as to the fitness of members to serve on the Board that the Senate has to inquire as to fitness of members of the Commission. Mr. BOYD. That is very true, sir, but my point is simply this: that I couldn't conceive of the Board, the Civil Aeronautics Board, as now constituted or as it might be constituted, under any conceivable set of circumstances delegating matters on which policy was to be made to employees. I do feel, however, that if we are going to be beaten over the head by administrative delay that we have got to have some flexibility. The CHAIRMAN. I don't want to say you shouldn't have. I am just trying to point out now, this plan is under attack. A resolution has already been filed. Mr. BOYD. Yes, sir. The CHAIRMAN. When you try to understand these things you have got to take the other fellow's side of it and ask questions. Mr. BoYD. That is right, sir. The CHAIRMAN. I remember one matter where there were two major air services, lines, competing for a particular route, transcontinental route, and one felt the other had a decided advantage and they were seeking a modification to grant them a competitive line or license or permit to fly the same route. Now, the one, assuming-I don't know this fact-but assuming the one had already had its authority to fly that route. Assuming that that one had something that is very profitable and naturally it wanted to hold onto it. Assuming, on the other hand there it is probably just barely getting by and competition was tremendously affected. In other words, it would be a very important decision not only to the immediate parties at interest, but it might well be to the general interest of aviation. Now, is the Congress going to set up a board by law, like we have the Civil Aeronautics Board, and require that the members of that Board be confirmed by the Senate, appointed by the President and confirmed by the Senate, and then turn right around and delegate to that Board the power to employ somebody to perform its functions who doesn't have to come under such scrutiny? Mr. BOYD. That is not the way I conceive this plan, Senator. The CHAIRMAN. Does the plan do that? Does it permit that? Mr. BOYD. I would think as a legal matter that what you stated could be done under the plan, assuming that the plan would withstand an attack in violation of public policy. Senator MUSKIE. Is there any authority of the Commission or any prerogative of the Commission which could not be delegated to such a board if this plan were in effect? The CHAIRMAN. Yes; there is a proviso in there subject to the Administrative Procedures Act, a certain section of that. Mr. BOYD. 7(a). Mr. NOBLEMAN. 7(a). The CHAIRMAN. I am familiar with that and it may present a possibility of a conflict. I will unravel it, but it is going to take some time to sit down and try to think it out as to what extent there is conflict here between what this plan apparently does on its face and what that would restrict it to if it restricts it. Mr. BOYD. I don't believe that we see a conflict here, Senator. Now we are going to provide you, I believe, with a written opinion of our counsel which will be much more valuable than my thoughts. The CHAIRMAN. Very good, but we came to this point, and I don't want to belabor it at this time, and you may proceed with your statement. I am pointing these up because, whether I raise the issues or not, they are going to be raised, and they are going to be debated. We ought to find the answer from your side, from your point of view. That is all I am trying to do at the moment. Mr. BOYD. The simple answer from my side is this: The Board today sets policy. The Board will continue to set policy regardless |