part exercised by regulation (part 241 et seq.). The exercise of this power by order does not require hearing.

The Board also supervises relations between air carriers to preserve the condition of regulated competition between them which is contemplated by the Congress. The Board's power to permit mergers, acquisitions of control, and transfers of substantial parts of air carriers' properties among air carriers, foreign air carriers, persons engaged in a phase of aeronautics, and other common carriers under section 408 of the act, must, with certain exceptions permitted by Public Law 86-758 of September 13, 1960, be exercised after hearing. The powers of permitting interlocking relationships among air carriers and certain other enterprises through interests of air carriers' officers or directors in such other enterprises (sec. 409) and of approving contracts between air carriers which relate to air transportation (sec. 412) may be exercised without hearing. The power to prevent unfair competitive or deceptive practices in air transportation (sec. 411) is exercised upon notice and hearing.

The Board may also proceed, upon notice and hearing, under sections 2, 3, 7, 8, and 11 of the Clayton Act, where applicable, to prevent certain price discriminations, conditions upon sales, and acquisitions of interests, inimical to the preservation of competition, by the regulated industry. The Board's seldom-used

power to approve or disapprove financial aid from the United States to an air carrier (sec. 410) may be exercised without hearing.

The Board is empowered to guarantee loans to air carriers engaged in local, feeder, or short-haul air transportation (Act of September 7, 1957, 71 Stat. 629). These guarantees may be made without hearing.

Under section 1108(b) of the Act, the Board issues regulations or orders permitting the navigation in the United States of foreign aircraft for purposes other than common carriage. This power may be exercised without hearing.

Certain incidental decisional powers such as review of the Postmaster General's orders on mail schedules under section 405(b) of the Act; certification to the Postmaster General that a proposed star route does not conflict with the development of air transportation (sec. 6 of the Experimental Air Mail Act as amended, 39 U.S.C. 470); directing staff members to disclose information obtained from examination of an air carrier's records (sec. 902(f) of the Act); decision on whether or not to proceed on complaints (secs. 411 and 1002 of the Act); issuances of subpenas (sec. 1004); decisions on request for confidential treatment of information, section 1104, are exercised without hearing.

The Board also has certain advisory powers related to its economic regulatory functions. Thus under section 802 of the Act the Secretary of State will consult with the Board concerning negotiations of international agreements on air routes and services. Under section 3 of the Federal Airport Act, the Administrator of the Federal Aviation Agency "shall, to the extent feasible, consult and give consideration to the views and recommendations of the Civil Aeronautics Board" in formulating and revising the national airport plan.

The Board's regulations provide for a number of instances where Board approval is required for certain transactions, or where the Board reserves the right to prohibit certain transactions. These incidental determinations are made without hearing.

For the purpose of enforcing the Act and its regulations thereunder, the Board may issue, after hearing, orders requiring compliance with such provisions or prohibiting violations thereof, section 1002 (c) of the Act.

In the field of air safety, the Board performs the function of investigating, and determining the probable cause of, all accidents involving civil aircraft (sec. 701 of the Act). This is a factfinding, not an adjudicatory, function, and the holding of a hearing in the course of the investigation is discretionary with the Board. The Board also makes such recommendations to the Administrator as, in its opinion, will tend to prevent similar accidents (sec. 701 (a) (3)). In connection with the exercise of these functions, the Board issues and from time to time amends Safety Investigation Regulations.

The Board may conduct special studies and investigations on matters pertaining to air safety to ascertain what will best tend to prevent accidents (sec. 701(a)(5)). In air safety rulemaking proceedings conducted by the Administrator of the Federal Aviation Agency, the Board may participate as an interested party (sec. 1001 of the Act).

In cases where the Administrator has refused to issue an airman certificate, or has issued an order amending, modifying, suspending, or revoking any air safety certificate, the Board, upon appeal of any affected person, will, after hearing, make a de novo determination of such matter (secs. 602 and 609 of the Act).

APPENDIX B

TABLE I.—Civil Aeronautics Board-Number of applications, petitions, and other matters received or initiated to which the Administrative Procedure Act is applicable, fiscal years 1956 through 1960

1 The reduction in number of cases shown reflects the change in safety-enforcement cases which was effected by the Federal Aviation Act of 1958. While previously a substantial number of safety-enforcement actions were on a nonhearing basis, under the new act, effective December 31, 1958, all proceedings require formal hearings.

TABLE II.-Civil Aeronautics Board-Number of undecided applications, petitions, and other matters pending to which the Administrative Procedure Act is applicable, fiscal years 1956 through 1960

1 The reduction in number of cases shown reflects the change in safety-enforcement cases which was effected by the Federal Aviation Act of 1958. While previously a substantial number of safety-enforcement actions were on a nonhearing basis, under the new act, effective Dec. 31, 1958, all proceedings require formal hearings.

TABLE III.-Civil Aeronautics Board-Number of applications, petitions, and other matters disposed of to which the Administrative Procedure Act is applicable, fiscal years 1956-60

1 The reduction in number of cases shown reflects the change in safety enforcement cases which was effected by the Federal Aviation Act of 1958. While previously a substantial number of safety enforcement actions were on a nonhearing basis, under the new act, effective Dec. 31, 1958, all proceedings require formal hearings.

Senator MUSKIE. On page 7, just to explore a little more

Mr. BOYD. Just a minute. I have got different page numbers here. All right, sir.

Senator MUSKIE. I would like to get some impression from you, in terms of interest in tackling the workload problem, of the number of cases that might come to the Board for review, for instance, on the Your statistics indicate that the examiner's decision has been followed without modification 50 percent of the time.

route cases.

Mr. BOYD. Yes, sir.

Senator MUSKIE. So that in 50 percent of the time there has been some modification. Would you think that the objective ought to be to reduce the Board's workload for review in this class of cases to this 50 percent of which we have been speaking?

Mr. BOYD. Yes, sir.

Senator MUSKIE. In other words, it would be the intent of the Board in reviewing applications for review to permit review only in those cases in which upon this preliminary study a modification might be likely?

Mr. BOYD. That is correct, sir.

Senator MUSKIE. In those cases in which the Board, simply on the basis of the application and without hearing, considered that the modification is not likely, review presumably will not be permitted? Mr. BOYD. That is correct.

Senator MUSKIE. Would the standards for review which you might devise be different with respect to these different classes of cases, say, the route cases and the foreign permit applications, and the mail rate field and safety adjudication cases, or would they be standards that would apply across the board?

Mr. BOYD. They could easily be different because of the complete diversity of subject matter. I think it might be impossible for us to develope standards that would apply across the board to all types of cases. For example, on the foreign air carrier permit applications, we deal with altogether different considerations, or I should say practically altogether different considerations than we do in the applications for certificates of public convenience and necessity involving domestic carriers or U.S.-flag carriers on international routes. We have different categories of mail routes, and I think that to say that we would adopt one standard would be very difficult.

Now, we certainly would require some showing that the examiner's findings or conclusions were in error or contrary to Board policy, but this I don't see as standard so much as procedure as to what you would do to bring the case within the purview of Board consideration. Senator MUSKIE. Under your present practice when the Board reviews a case is the case tried de novo?

Mr. BOYD. It is not tried de novo, no, sir.

Senator MUSKIE. Is it heard?

Mr. BOYD. It is purely oral argument.

Senator MUSKIE. It is purely oral argument. So there are no new facts adduced?

Mr. BOYD. There are no new facts adduced, but there is argument of all issues, all facets of the case. We have no way to restrict the parties.

Senator MUSKIE. So that, as I understand it, if this plan is approved, the only difference between the procdure and your current procedure in dealing with reviews, the only difference would be that the case for review would be presented in writing instead of orally. Secondly, that there would be no argument necessarily where there now is, and the Board's impression of the merits of review would be much less broadly based in terms of an exploration of the merits of review than at present.

Mr. BOYD. No, it is academic at the moment as far as the merits. Senator MUSKIE. Let's put it this way: When you get two fellows with a different view of a case arguing orally before a board, that board is going to give that controversy or the issues raised by it much more informed attention really than it would if the individual members of the board are simply reading an application for review. We are getting into this business of human beings again.

Mr. BOYD. This is like a picture being worth a thousand words. It draws more attention, but let me point this out, Senator: At the present time we have a policy we call the use-it-or-lose-it policy that applies to subsidized transportation. The Board has developed and tested its policy. It has interpreted its policy. There are fourscore communities in this country currently having their service reviewed by the Board in cases to ascertain whether or not they are entitled to continue utilizing subsidized transportation. All of these cases are going to be appealed just as sure as the world, and to say that the Board is going to pay much attention to what the people have to say in this is merely to say that we are responsible men because our policy is clear cut. If the examiner follows the policy, we are just sitting up there wasting our time listening to arguments on why the examiner was wrong. Now, this is being about as brutally frank as I can be. Certainly we will listen to these men. We don't sit up there and sleep, but what they are arguing is not the merits of the case. What they have to argue to us is that the policy is not right, because the examiner finds that under the policy X community is not entitled to receive continued transportation; they haven't come within the policy.

Senator MUSKIE. Could his judgment in that respect be wrong? Mr. Boyd. It is based on mathematical calculations, on figures, traffic figures. So believe me we are not talking about astronomical figures except when we get into the amount of money that is spent. We are talking about the passengers, and that is the important thing. It is pretty cut and dried.

Senator MUSKIE. Well, you chose an unfortunate illustration because I have some of those communities in my State.

Mr. BOYD. Yes, sir; I know it. I was sorry to bring it up, but I knew that it was a problem with which you would be familiar.

Senator MUSKIE. Well, I think we have explored this about as much as we can, but the thing that concerns me is this; that you indicate the commendable desire of the Board to deal with the larger issues and the national questions, the needs of the industry. This is fine, but the number of such problems and issues is bound to increase. It is bound to grow. As the Board becomes preoccupied with them, the tendency to concentrate on those and to resist this workload of review in smaller cases is going to be accelerated, it seems to me. Even these smaller cases involve very important issues for the rela

tively few people in the small localities that are involved, and I have as little patience as anyone else with people who belabor a case that has long since lost its vitality. This happens with people who are seriously concerned, and I think the Board should not be overburdened with such cases. But at the same time I think we ought to be careful not to so restrict the available remedies that the occasional meritorious case, small case, doesn't have an adequate opportunity to be reviewed by a board.

If your examiners are overloaded, as apparently they are, they get tired, too, they get overwhelmed by records that are too long and records in which the people do belabor points and repeat themselves. These aren't easy to deal with, I know. I have had them, too, but at the same time once in a while there is a nugget in all of this sand. I think your procedures ought to be such as to insure that you save as many of those as possible, and that is my primary concern. I don't know if I have stated my point adequately.

Mr. BOYD. That is certainly our interest, Senator. Let me point this out to you: I will try to use an analogy which I hope is appropriate.

Senator MUSKIE. One which I will understand.

Mr. BOYD. I think you understand everything that goes on around here. Suppose that anyone who wanted to could come before the Congress and file a private claims bill, and you had to give that the same amount of consideration as you do various legislation dealing with foreign aid, housing, and so forth. I think that the Congress would get to be in pretty bad shape. This is exactly the shape we are in today. We don't have any control over what is filed before the Board, and very little control over how the case proceeds.

Senator MUSKIE. There is a screening problem for any agency or organization which is overwhelmed by the volume of business which could come before it. But there is a slight difference here. It is possible to establish standards. Usually the Congress does establish standards for the application of jurisdiction by agencies and by courts. Those standards are designed as protection for the public. Now, once you have gone the limit in establishing standards to the full extent of the ingenuity of the people who are experienced, there is still a little bit left where you have got to supply discretion. This is always recognized. But here you have made it all discretion and no standards so far as the plan is concerned. Perhaps that is necessary, but these plans are going to be tackled pretty severely, and up to now all you have given us to work with is that it is pretty darn tough to establish standards on the basis of the experience now available to you, and that we ought to have faith that the standards will be reasonable when you apply them. But beyond that we haven't got much to work with.

Mr. BOYD. Well, we would be happy to

Senator MUSKIE. I am not suggesting that when I say that you are devoid of ideas, because I am sure that you are not, but the record is. Mr. BOYD. We could certainly provide you with what we think are standards in a number of fields. However, I can assure you that the minute we did that, you and we would be involved in another battle with the people who were concerned with the types of cases where we felt the standards should apply on the grounds that what we say on a relative basis is not so important that it should come before