ations, agency representatives, and members of the public to facilitate the evaluation of present and future needs and to report annually to the Administrative Conference on its activities.

7. Permanent multiagency hearing rooms and hearing rooms permanently assigned to individual Federal agencies should be identified as "Federal Administrative Hearing Rooms."

8. The Chairman of the Administrative Conference should encourage the cooperation of State and local judges in the procurement of courtroom space for Federal administrative hearings.

9. The Judicial Conference of the United States should encourage the cooperation of Federal judges in the procurement of courtroom space for Federal administrative hearings.

10. Federal agencies should budget funds to provide for the payment of charges for the use of appropriate space when such space is not available on a free basis.

11. Federal agencies which conduct administrative hearings should designate an official to work with the General Services Administration in the procurement and planning of hearing facilities.

§ 305.68-2 U.S. Government Organization Manual (Recommendation No. 68-2).

§ 305.68-3 Parallel Table of Statutory Authorities and Rules (2 CFR Ch. I) 1 (Recommendation No. 68-3).

§ 305.68-4 Consumer Bulletin (Recommendation No. 68-4).

§ 305.68-5 Representation of the Poor in Agency Rulemaking of Direct Consequence to Them (Recommendation No. 68-5).

RECOMMENDATION

A. Agency efforts. 1. Federal agencies should engage more extensively in affirmative, self-initiated efforts to ascertain directly from the poor their views with respect to rulemaking that may affect them substantially. For this purpose, agencies should make strong efforts, by use of existing as

'As of July 1, 1977, codified as Table I of the CFR Index and Finding Aids Volume.

well as newly devised procedures, to obtain information and opinion from those whose circumstances may not permit conventional participation in rulemaking proceedings. The “rulemaking" referred to is that defined by the Administrative Procedure Act, section 2(c), 5 U.S.C. 551 (4) and (5).

2. Agencies should employ as many of the following procedures as are feasible, practicable, and necessary to assure their being fully informed concerning the relevant interests of the poor:

(a) Agencies should seek to inform the poor of all rulemaking proposals that may affect them substantially and should provide opportunities for the poor to submit their views concerning these and related proposals.

(b) Agencies should hold formal public hearings or informal conferences in close geographic proximity to the poor substantially affected by contemplated rulemaking.

to

(c) Agencies should take care invite individuals constituting a representative cross-section of the poor to submit their views orally or in writing as to proposed rules substantially affecting the poor.

(d) Agencies should conduct field surveys among the poor to discover their attitudes concerning particular government policymaking substantially affecting them.

(e) Agencies should use advisory committees made of representatives of the poor as continuing consultants for all programs having a substantial effect on such persons.

(f) When necessary to assure adequate representation for the poor, agencies should pay the personal expenses and losses incurred by individuals incident to their participation in rulemaking hearings. Congress should support agency requests for funds and for authority, where none exists, to make discretionary payments for this purpose. Agencies already authorized to make such payments in whole or in part should use their existing authority and should allocate funds accordingly.

In deciding whether the use of any one or more of the above devices is feasible, practicable, or necessary in a given situation, agencies should re

solve doubts in favor of utilizing them; but their enumeration should not exclude or discourage the development and use of other devices to achieve the same result.

In carrying out paragraphs 1 and 2 of this recommendation, agencies should consult with and coordinate their efforts with other Federal agencies having responsibilities in this area and should make maximum feasible use of the facilities of such other agencies for communicating with and obtaining expressions of the views of the poor.

3. Agencies should be encouraged in appropriate circumstances to determine that the exemptions in 5 U.S.C. 553(a)(2) should not be applied with respect to rulemaking which may have a substantial impact on the poor.

B. People's Counsel. 4. (a) An organization should be authorized by statute to employ a staff to act as "People's Counsel." The People's Counsel should represent the interests of the poor in all Federal administrative rulemaking substantially affecting the poor.

(b) The People's Counsel should be charged with assuring that the views of significant separable minority interests among the poor are represented in such Federal administrative rulemaking.

(c) The People's Counsel should be required to disseminate to all interested poor people's organizations pertinent information concerning rulemaking substantially affecting the poor.

(d) The People's Counsel should be authorized to participate suitably in its own name to represent the interests of the poor in any Federal agency proceedings in which the poor have a substantial interest.

(e) The People's Counsel should be authorized to provide representation for organizations and groups of the poor who seek judicial review of administrative action substantially affecting their interests. This recommendation is not to alter the kinds of agency action amenable to judicial review, the requirements of standing to seek review, or the scope of that review.

(f) As an incident to its main responsibilities the People's Counsel should

be empowered to recommend to Congress or the President or to both such legislation or other action as it deems appropriate to correct deficiencies in or otherwise improve Federal programs having a substantial impact on the poor.

5. (a) Congress should provide for an appropriate body to perform the functions outlined in section 4. Deserving of consideration as such body would be a new single-purpose corporation, to be created by Congress, modeled on the Corporation for Public Broadcasting, Pub. L. 90-129, 81 Stat. 368 (1967), 47 U.S.C. (Supp. III) 396, and to be known as the People's Counsel Corporation. In the event this form of organization is adopted, the following considerations should apply:

(1) The People's Counsel Corporation should be made tax exempt and authorized to accept grants of private funds. Gifts to the Corporation should be made deductible as charitable contributions for Federal income tax purposes.

(2) Federal financing of the Corporation should be made available to the extent necessary to assure its effective operation.

(3) The governing board of the People's Counsel Corporation should be constituted to give the poor meaningful representation thereon. Such body should be constituted to ensure close communication with the poor and effective representation of the viewpoints of the poor.

6. All Federal agencies should be required by Executive order to notify the People's Counsel of all proposed rules which would have a substantial impact on the poor. Agencies also should be required by that Executive order to give the People's Counsel an opportunity to present the views of the poor with respect to such proposed rules. Exceptions to these obligations should be permitted only "when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that (such) notice and *** (an opportunity for the People's Counsel to present its views) are impracticable, unnecessary, or contrary to the public interest." (See 5 U.S.C. 553(b)(B).) In these exceptional cases, agencies

should be required to notify the People's Counsel as soon as practicable of any consummated rulemaking substantially affecting the poor, and should be required to give the Counsel as soon as practicable an opportunity to communicate to the agency its views concerning the desirability of further action with respect to such rulemaking.

Without prejudice to creating or empowering any other appropriate body to perform the general functions outlined in paragraphs 4, 5, and 6, any special provision therefor should be so structured as to take maximum advantage of the capabilities in this field of nongovernment organizations, and of other public bodies, including notably the Office of Economic Opportunity.

NOTE: Six separate statements were filed concerning this Recommendation.

§ 305.68-6 Delegation of Final Decisional Authority Subject to Discretionary Review by the Agency (Recommendation No. 68-6).

RECOMMENDATION

1. In order to make more efficient use of the time and energies of agency members and their staffs, to improve the quality of decision without sacrificing procedural fairness, and to help eliminate delay in the administrative process, every agency having a substantial caseload of formal adjudications should consider the establishment of one or more intermediate appellate boards or the adoption of procedures for according administrative finality to presiding officers' decisions, with discretionary authority in the agency to affirm summarily or to review, in whole or in part, the decisions of such boards or officers.

2. Section 8 of the Administrative Procedure Act, 5 U.S.C. 557, should be amended as necessary to clarify the authority of agencies to restructure their decisional processes along either of the following lines:

(a) Intermediate appellate boards. (1) Whenever an agency deems it appropriate for the efficient and orderly conduct of its business, it may, by rule or order:

(A) Establish one or more intermediate appellate boards consisting of

agency employees qualified by training, experience, and competence to perform review functions,

(B) Authorize these boards to perform functions in connection with the disposition of cases of the same character as those which may be performed by the agency,

(C) Prescribe procedures for review of subordinate decisions by such boards or by the agency, and

(D) Restrict the scope of inquiry by such boards and by the agency in any review, without impairing the authority of the agency in any case to decide on its own motion any question of procedure, fact, law, policy, or discretion as fully as if it were making the initial decision.

(2) Any order or decision of an intermediate appellate board, unless reviewed by the agency, shall have the same force and effect and shall be made, evidenced, and enforced in the same manner as orders and decisions of the agency.

(3) A party aggrieved by an order of such board may file an application for review by the agency within such time and in such manner as the agency shall prescribe, and every such application shall be passed upon by the agency.

(4) In passing upon such applications for review, an agency may grant, in whole or in part, or deny the application without specifying any reasons therefor. No such application shall rely upon questions of fact or law upon which the intermediate appellate board has been afforded no opportunity to pass.

(5) An agency, on its own initiative, may review in whole or in part, at such time and in such manner as it shall determine, any order, decision, report, or other action made or taken by an intermediate appellate board.

(6) If an agency grants an application for review or undertakes review on its own motion, it may affirm, modify, reverse, or set aside the order, decision, report or other action of the intermediate appellate board, or may remand the proceeding for reconsideration.

(7) The filing of an application for agency review shall be a condition precedent to judicial review of any

order of an intermediate appellate board.

(8) Agency employees performing review functions shall not be responsible to or subject to the supervision or direction of any employee or agent engaged in the performance of investigative or prosecuting functions for any agency.

(b) Discretionary review of decisions of presiding officers. (1) When a party to a proceeding seeks administrative eview of an initial decision rendered by the presiding officer (or other offizer authorized by law to make such decision), the agency may accord adminstrative finality to the initial decision by denying the petition for its review, or by summarily affirming the initial decision, unless the party seeking review makes a reasonable showing that:

(A) Prejudicial procedural error was committed in the conduct of the proceeding, or

(B) The initial decision embodies

(i) A finding or conclusion of material fact which is erroneous or clearly erroneous, as the agency may by rule provide,

(ii) A legal conclusion which is erroneous, or

(iii) An exercise of discretion or decision of law or policy which is important and which the agency should review.

(2) The agency's decision to accord or not to accord administrative finality to an initial decision shall not be subject to judicial review. If the initial decision becomes the decision of the agency, however, because it is summarily affirmed by the agency or because the petition for its review is denied, such decision of the agency will be subject to judicial review in accordance with established law.

$305.68-7 Elimination of Jurisdictional Amount Requirement in Judicial Review (Recommendation No. 68-7). EDITORIAL NOTE: This recommendation has been implemented by Pub. L. 94-574. $305.68-8 Judicial Review of Interstate Commerce Commission Orders (Recommendation 68-8).

EDITORIAL NOTE: This recommendation has been implemented by Pub. L. 93-584.

§ 305.69-1 Statutory Reform of the Sovereign Immunity Doctrine (Recommendation 69-1).

EDITORIAL NOTE: This recommendation has been implemented by Pub. L. 94-574.

§ 305.69-2 Judicial Enforcement of Orders of the National Labor Relations Board (Recommendation 69-2).

The orders of most major independent regulatory agencies agencies normally become enforceable automatically unless challenged in court. The statutory requirement that an order of the NLRB can be made effective only by affirmative action to obtain judicial confirmation of its terms, even when its validity is wholly uncontested, is contrary to efficient law enforcement. The Administrative Conference of 1961-62 urged that NLRB orders be treated, for purposes of judicial review, like those of the other major independent administrative agencies.. That recommendation remains as sound today as when it was first made. The present practice burdens the courts with unnecessary proceedings whose only product is delay rather than added protection against illfounded action. In the absence of any challenge after due notice to the parties, NLRB orders should be enforceable by the U.S. Courts of Appeals without further intermediate steps. § 305.69-3

Publication of a “Guide to Federal Reporting Requirements" (Recommendation No. 69-3).

§ 305.69-4 Analytical Subject-Indexes to Selected Volumes of the Code of Federal Regulations (Recommendation No. 69-4).

§ 305.69-5 Elimination of Duplicative Hearings in FAA Safety De-certification Cases (Recommendation No. 69-5).

§ 305.69-6 Compilation of Statistics on Administrative Proceedings by Federal Departments and Agencies (Recommendation No. 69-6).

Government agencies which conduct formal or informal rulemaking proceedings or cases of adjudication which directly fix the rights and obligations of private persons

(hereafter referred to as "proceedings") ' owe a special duty to the individuals affected and to the general public to manage their caseloads as efficiently as possible, to eliminate inordinate delays in the conduct of proceedings, and to work continuously toward improving the fairness, effectiveness, and economy of their procedures. The present volume of Federal administrative proceedings is so great that much of the basic information needed in these efforts can be developed in intelligible and useful form only through statistical study. The compilation and publication of comprehensive statistics on Federal agency proceedings, at regular intervals would:

(a) Provide each agency with information concerning its business which would enable it to manage its caseload more effectively,

(b) Augment generally the information concerning its activities which each agency must furnish to the President, the Congress, and the public.

(c) Afford affected parties and their counsel a better understanding of the administrative processes which determine their rights and obligations, and

(d) Provide a basis for specific study of particular agency procedures by the agency itself, by committees of Congress, the Administrative Conference of the United States, the organized bar, research scholars, and other individuals and organizations, public and private, interested in improving the Federal administrative process.

RECOMMENDATION

1. To the extent deemed useful to advance the purposes of this recommendation, each Federal administrative agency which conducts proceedings (as defined above) affecting private persons' rights, privileges or obligations, should prepare annual statistical data pertaining to those proceedings, to be compiled in such manner and presented in such publications as the agency considers appropriate.

2. These statistical compilations should list the kinds of proceedings pending during the year, with a concise yet meaningful description of the nature and purpose of each kind of

'The agency compilations proposed by this recommendation should not be limited to formal proceedings, or limited to "proceedings" as that term has been employed in gathering statistics for past conferences or Congressional groups. Rather, agency figures should report all matters directly fixing the rights, privileges, and obligations of private interests including the routine handling of applications and claims.

proceeding and citations for the statutory authority under which the proceedings are conducted, and the sections of the Code of Federal Regulations which set forth the rules of practice governing each kind of proceeding.

3. For the purpose of agency efforts that may be made in cooperation with the Chairman of the Administrative Conference of the United States, to lessen delays in administrative proceedings, the statistical compilation should show the number of days which elapsed during each significant step of the proceedings which were concluded during the year.

4. In designing each agency's compilation, the following information, together with the time-study data referred to in 3 above, should be considered minimal:

(a) The number of proceedings of each kind pending at the beginning of the year;

(b) The number of new proceedings filed or otherwise commenced during the year;

(c) The number of proceedings conIcluded during the year and the manner of their disposition (i.e., by settlement, dismissal on procedural grounds, decision on the merits without hearing, final decision by agency after hearing, and an examiner's initial decision, etc.);

(d) The number of proceedings remaining at the end of the year; and

(e) The number of proceedings concluded during the year which were appealed to the courts.

5. Each agency should periodically analyse all of the information thus compiled and should develop improved techniques fitted to its particular needs to reduce delays and expense and otherwise to improve its administrative processes. A copy of this analysis should be submitted to the Administrative Conference of the United States.

6. In presenting its statistical compilation, each agency should summarize this analysis and describe the specific steps it has taken toward the ends referred to in 5 above.

7. Each agency, in its subsequent compilations, should follow a pattern that makes possible a comparison of