OF AMERICAUNITED STATES

.

(iongrcssional RccordPROCEEDINGS AND DEBATES OF THE 79 th CONGRESS

SECOND SESSION

VOLUME 92-PART 2

FEBRUARY 19, 1946, TO MARCH 28, 1946

(PAGES 1443 TO 2780)

Property ofANCMORACE COMMUNITY COLtICiI

. o::l/~ tzs ..NpT TO LEAVE LIBRARY

UNITED STATES GOVERNMENT PRINTING OFFICE~ WASHINGTON, 1946

2148 CONGRESSIONAL RECORD-SENATE· MARCH 12H. R. 4884. An act to relieve certain em-·

ployeeS of the Veterans' Administration fromfinancial llllbUity"for certain overpaymentsand atlow such credit therefor as Is necessaryIn the accounts of Guy F. Allen, chief dis­bursing o1Bcer.

HOUSE BILL AND JOINT RESOLUTIONREFERRED

The following bill and joint resolutionwere each read tWice by their titles andreferred, as indicated:

H. R. 5605. An act making appropriationsfor the Department of Agriculture for the.fiscal year ending June 30, 1947, and forother purposes; to the Committee <.n Ap­propriations.

H. J. Res. 307. Joint resolution to author­ize the use of naval vesseis to determinethe effect of atomic weapoils upon such ves­sels: to the Committee on Naval Affairs.

ADMINIsTRATIVE PROCEDURE ACT

The Senate resumed the considerationof the bill (S. 7> to improve the admin­istration of justice by prescribing fairadministrative procedure.

Mr. McCARRAN. Mr. President, theunfinished business before the Senate isS. 7, the administrative procedure bill,which has been so long considered andstudied by this body. In order that theSenate may have a preview of. what itshall consider in connection with the bill,I send to the desk a very able article byMr. Willis Smith, president of the Amer­ican Bar Association, entitled "Draftingthe Proposed Federal AdministrativeProcedure Act," and I ask that the clerkmay read the article, because it is brief,and will lend emphasis to the explana­tion which I shall make of the bill im­mediately.

The PRESIDING OFFICER (Mr. TUN­NELL in the chair). Without objection,the clerk will read as requested.

The Chief Clerk read as follows:DRAFTING THE PRoPOSED FEDERAL ADMINISTRA­

TIVE PROCEDUllE ACT

(By Willis Smith 1)

"How to assure pUblic information, how toprovide for rule making where no formalhearing is provided, how to assure fairness inal1judlcatlons, how to confer various inciden­tal procedural rights, how to limit sanctions,how to state an the essentials of a right tojudicial review, and how to make examinersindependent-these were the main ques­tions."

During the last 3 months of 1945 theretook place a remarkable series of events inconnection with the proposed statute regu­lating Federal administrative procedure andconferring powers of court review. On Oc­tober 19, 1945, the Attorney General of theUnited States issued a strong statement Insupport of It. On the fonowlng November19 the Committee on the Judiciary of theUnited States Senate unanimously and favor­ably reported It (S. 7. Rept. No. 752). OnDecember 10 It was Introduced in the Houseof Representatives as H. R. 4941 In the forJIl

. reported by the Senate committee. OnDecember 18 and 19, at the sixty-eighth an­nual meeting of the American Bar Associa­tion, Chairman HATTON W. SUMNERS, of theCommittee on the Judiciary of the House ofRepresentatives made a favorable statementon It. Attorney General TOJIl C. Clark gavea fUll address on the subject, and resolutionsIn favor of It were adopted.

In these days, When so much legislation isdone piecemeal and the demands of special

1 The author Is a member of the Raleigh(N. C.) bar and president of the AmericanBar Association.

interests hold . the center ot the stage,. thelegislative proposal which has met with Sl.\chgeneral acceptance· is even more notable be- >

cause It deals broadly with the prob1emot.admlnlstration and Is a measure for goodgovernment. It deals With procedure, notprivileges, and provides a general method ofassuring that government will operate ac­cording to law. A bill of that character Inthese days required a background of prepara­tion to achieve such acceptance. .. The proposed statute involves almost all

administrative operations. It deals With thevery lmportant problem of the. relation ofcourts to administrative agencies. It is ob­viously not such a statute as may easily bedrawn and simply . submitted to the usuallegislative routine. The method of proce_dure adopted by the senate Judiciary Com­mittee. under the chairmanship of SenatorPAT MCCAIlilAN, of. Nevada, .recognized thenature oithe task. That method Is not onlytmportant for this bill but opens possibilitiesfor the future. .

LEGISLATIVE HISTORYFor more than 10 years Congress has con­

aldered proposals for general statutes re­spectlngadmlnistratlve law and procedure.Ten or more important bills have been Intro.-.duced In Co~gress, and. most of tl1emhavereceived widespread consideration.

In 1937 the President's Committee on Ad­ministrative M8.nagement· recommended thecomplete separation of investigative-prose­cuting functions and personnel from de­ciding functions and personnel in adminis­trative agencies, but the significance of Itsreport was lost In the turmoil of other Issues.In 1938 the 6eI).ate Committee on the Ju­diciary heldh"earlngs on a proposal· for thecreation of an administrative court. In 1939the Walter-Logan administrative pnJ!:edurebill was favorably reported to the Senate.In 1940 It was passed by the Congress butvetoed by the President In part on the groundthat action shOUld await the then ImminentfiIlal report by a committee appointed in theexecutive branch. Early in 1941 that com­mittee, popUlarly. known as the AttomeyGeneral's Committee· on Administrative :Pro­cedure, made Its extensive report.

. Growing out· of the work of the AttorneyGeneral's Committee on Administrative Pro­cedure, several bills were Introduced Iii 1941.Senate hearings were· held on these billsduring April, May, June, and JUly of thatyear. All Interested administrative agencieswere heard at length and the proposals thenpending involved the basic Issues.

Further ·conslderatlon was postponed forthree war years. Bills were again IntroducedIn June 1944 and reintroduced With revisionsin 1945. The Committee on the Judiciary ofthe House of Representatives held hearingsIn June 1945, but It seemed clear that thereal problems were detailed and technical.It had come to be widely accepted that suchlegislation should be functional In thesense that it should apply to kinds of opera­tions rather than to forms of agencies. Ac­cordingly, the proposed statute dealt pri­marily with the legislative and judicial func­tions of administrative agencies. Withineach of those functions, however, it wasnecessary to define procedures and exceptSUbjects which were either not regulatory incharacter or were soundly committed toExecutive discretion.

TECHNICAL REVISIONSAnticipating that this would be the situa­

tion, the chairmen of the Judiciary Com­mittees of the Senate and House of Repre­sentatives had requested administrativeagencies to SUbmit their views and sugges­tions In writing. The Attorney General wasrequested to act as a liaison o1Bcer betweenthe legislative committee and the severaladministrative agencies. Representatives ofthe staff of the senate committee, with theaid of the representatives of the AttorneyGeneral and ~ther interested parties, engaged

In an el'tenslve series of conferences at WhichpOints made were. dlscussed .~d alternativeproposalS . as·· to language were debated.Then, In May 1945, the senate committeeISSUed a committee print in which the text .of S. 7 appeared in one column and a tenta­tively revised text In the parallel column.

The reVised text so proposed was thenagain submitted to administrative agenciesand other interested parties for their writtenor oral comments, wblchwere analyzed bythe" committee's staff and a further com­mittee print was Issued In June 1945. Infour parallel columns It set forth (I) thetext of the bill as Introduced, (2) tile textof the tentatively revised bill prevlousiy pUb­lished, (3) a general explanation of pro-·visions with references to the report of theAttorney General's Committee on Adminis­trative Procedure and ot-her authorities, and(4) a summary of views and suggestionsreceived.

About this time Tom C. Clark became At­torney General and added new representa­tives to· the conference group. Senator Me­CAlIJlAN, chairman of the Senate Committeeon the Judiciary, asked that they screen andcorrelate any further agency views. Afterthis had been done and representatives ofprivate. organizations had SUbmitted theiradditional views, the bill as further revisedwaamade a committee print under date ofOctober 5, 1946.. This final draft was submitted to the At-.toriley General for hls formal perusal. Henot onl"1 reported that the proposal was notobjectionable. but recommended its enact­ment in a, strong statement on OCtober 19,i945. A month later tbe Senate committeereported the measure. Its report of 31· pagesplUS appendiX refiects tbe long and pains­taking consideration given the bill. Theprocess of. that consideration was not onlywell adapted to the technical nature of thejob at hand but It was truly democratic, forprivate as Well as governmental representa­tives were given every opportunity to SUbmittheir views and suggestions,

PARTICIPATION 01" LEGAL PIl0FESSION.The organized bar had the sa.me. oppor­

tunities for presentation of Views. and sug­gestlons.Bar associations had adopted reso­lutions and had presented reports to thecongreSSional committees. The AmericanBar Association's special committee on ad­ministrative law took an active part, cul­minating in a full day's meeting of the 13­man committee at Washington on October 2.The .committee unanimously approved thefinal draft of the bill and certified its positionto the chairmen of the .congresslonal com­mittees.

Contrary to the Impression which somepeople seem to have, the proposed Admin­Istrative Procedure Act is not a compromise.The problem was not "how much" but "how."How to assure ,Public Information, how toprOVide for rule making where no formalhearing Is provided, how to assure fairness InadjUdications, how to confer various Inci­dental procedural rights, how to limit sanc­tions, how to state all the essentials of aright to· judicial review, and how to makeexaminers Independent-these were the mainquestions.

There were two reasons why the legal pro­fession COUld not engage In trading foradvantage In the details. First, If the statuteshould .proVe unworkable. It might prejudiceprocedural legislation for all time. Secondly.onerous reqUirements, such as those respect­Ing eVidence, might aid one private InterestIn one case-that Is, where prohibitory ordersare issued-but would harm them in an­other-e. g., Where a license Is sought.Mainly, however, It was a· simple matter ofgood citizenship and good statesmanship toseek the best and fairest provisions for eaChSUbject.

CONCLUSIO.NThe draft of bill as reported by the Senate

Committee on· the JUdiciary olfers a means

1946 CONGRESSIONAL RECORD-SENATE 2149of securing and mainta.1ning a governmentaecording to law, Its wOl'kability ~as beentested by the elaborate procedure discusset.above. Its utility has been approved by therepresentatives of most of the legalprofes­sion. Its desirability is admitted by publicolflcers of the highest rank. The necessityfor It has been attested by the responsibleMembers of the National Legislature. If It isadopted. as it sh(luld speedily be. the resultwill be due to the baekgr(lund of stUdy andcare With which Its terms have been draftedand tested.

Mr. McCARRAN. Mr. President. ithas been said that the law is a jealousmistress. I regret exceedingly that Icannot have before me at this momentevery Member of the Senate of theUnited States so that each might listento the explanation of a b1ll which tomy mind and to the mind of the bar ofAmerica is one of the most importantmeasures that has been presented tothe Congress of the United States in itshistory.

We have set up a fourth Order in thetripartite plan of Government which wasinitiated by the founding fathers of ourdemocracy. They set up the executive,the legislative, and the judicial branches;but since that time w.e have set up afourth dimension, if I may SO term it,which is now popularly known as admin­istrative in nature. So we have the leg­islative, the executive, the judicial, andthe administrative. .. ,

Perhaps there are reasons for that ar­rangement.' We found that the legisla­tive branch, althoUghlt might enact law,could not very wen administer it. ' Sothe legislati\'e branch enunciated thelegal precepts and ordained that com­missions or groups should be establtshedby the executive branch with power topromulgate rules and regulations. Theserules and regulations are the very thingsthat impinge upon, curb, or permit thecitizen who is touched by the law, ¥every citizen of this democracy is. .

The bill comes from the committee onthe Judiciary of the senate of the UnitedStates, and I think it should be explainedto every Member of the Senate, becausethe Committee on the Judiciary desiresthat there should be a full understand­ing of its provisions and purposes. TheCommittee on the Judiciary is the lawcommittee of this body, and the law isthe thing which makes democracy Vital.This is 'not a. Government of men. ItIs a Government of law; andthls law is athing whieb, every day from its enact­ment until the end of time 80 far as thisGovernment is concerned, wUl touch ev­ery citizen of the Republic. So I pro­ceed with a detailed explanation of abill which should be listened to by everyMember of the Senate.

Mr. President, Calendar No. '158, Sen­ate bill '1, the purpose of which Is to lm­prove the administration of' Justice byprescribing fair administrative prtJced­ure, is a bill of rights for the hundredsof thousands of'Alner1cans .whose aJfairsare controlled or regulated in one way oranother by agencies of the Federal Gov­ernment.It is designed' to provideguaranties of due process tn a.dm1D'lstra­tive procedure.

The demand for leglalatiotl of thla~peto settle and regulate the field of Pecleraladministrative law and procedure has

been widespread and consistent over aperioo of many' years. Today there areno clearly recognized legal guides foreither the public or the administrativeomcials of Government departments.The subject of administrative law andprocedure is not expressly mentioned inthe Constitution, and there is no recog­nizable body of sUch law, as there is forthe courts in the Judiclal Code.

Even the ordinary operations of ad­ministrative agencies are often di1llcultto know, and undoubtedly there havebeen litigants before Q{)vemment agen­cies who have received less than Justicebecause they were not fully advised oftheir rights or' of the procedure neces­sary to protect them.

The Committee on the Judiciary hasbeen convineed that there should be asimple and standardized plan of admin­istrative procedure. This bill is intendedto put such a plan intO etfect.

Proposals for general statutes respect­ing administrative law and procedurehave been before the Congress in oneform or another, and have been consid·ered by the CongreSs over a period ofmore than 10 years. I call the attentionof the senate to the chart on page 2 ofthe Judicial'l' Committee's repOrt on Cal­endar No. 758, Senate bill 7. This is Sen­ate Report !'fo. 752, which is on the deskSof all senators. This chart clearly showsthe chronology of the main bills on thissubject which have been introduced.Each of the bllls sliown on this chart hasreceived wide public attention and longand serious consideration in the Con­gress. ProblentS of administrative lawand procedure have been increased andaggravated by the continued growth ofthe Government, particularly in the ex­ecutive branch. By the middle of the1930's the situation had become so seri­ous that the President then in ofDce ap­pointed a committee to make a compre­hensive survey of administrative meth­ods, overlapping functions, and diverseorgan1Za.t1ons, anei to submit suggestionsfor improvement. While that commit­tee was not primarily concerned with themore detailed questions of administra­tive law and procedure as the term isnow understood, the committee inevita­bly was brought face to face with thefundamental problem of the inconsistentunion of prosecuting and decldin'g func­tions exercised by many executiveagencies.

In 1937· the President's Committee onAdm1JiJstrative Management issued itsreport. I quote excerpts from thatreport:

The executive brandl of the Go'Vemmentof the United' States bas • • • grownup 'Without plan or ~eslgn • ••• Tolook at it now, no one woUld ever recognisethe stl'ucture whlct1 the tound1ng fatherserected a century and a half ago. • • •C<lmmlssions have'been the result of legisla­tive groping ratber than tbe pursUit of aconsistent policy. • • • They are inreality minlature Independent governmentsset up to deal with the· railroad problem,thebllDJWJg problem, or the radio problem.The)' C0118titute a.~ "fourthbranehH

of tile Ga9enunent, .. baphU&1'd deposit ofkresponsible sgenc1ea and uncoordinatedpOWers. • • • There I' a confiict of prin­,ctple Jnvolvedin thelrmake~uJJ and tunc­UonII. • • • They are vested wIth du­tIM of admtnlstratlOD.' ,. • • ,and at th9

same time they are given important judicialwork. • • .. The.evils resulting from thisconfusion of principles are Insidious and far­reaching. • .,. Pressures and influ­ences properl' enough directed toward of­ficers responsible for formulating andadministering polIc)' constitute an unwhole­some atmoapbl!!"e in Which to adjudicate pri­vate rights. But the mixed duties of thecommissions render escape from these sub­versive In1luences Impossible. Furtherlllore,the 6&me men are Obliged to serve both asprosecutOl'S and as jUdges, This not onlyundermines judicial fairness; It weakens pub­lie conildence In that fa.1rness. Commis­sion decisions alfecting prIvate fights andconduct lIe under the InlsplCion of beingrationalIzations of the prellmimiry tlndii:!gswhich the COmmiBeion, in the role of pros­ecutor, presented to itself.

Mr. President, I have been quotingfrom the report of the President's Com­mittee Oft Administrative Management,issued in 1937. In transmitting that re­port to the Congress, President Roose­velt added a comment of his own, fromwhich I also wish to quote. He said:

I have examined this report carefully andthoughtfully. and am convinced that it isa great document of permanent impor­tance. .. • • The practice of creatingIndependent regulatory commlssklns, whoperform ~tnJstJ'8tlve work in addition toJUdicial work, threatens to deve1(lp a "fourthbranch" of the Government for which thereis no sanction in the Constituti.on.

Ill'. President, those are the words ofthe late, beloved President of the UnitedStates. Franklin Delano Roosevelt.

The remedy proposed by that com­mittee. back in 1937, was a very drasticone. namely, complete separation of in­vestigative and prosecuting functionsand personnel from deciding functionsand personnel. That remedy had in­herent administrative difficulties which,while not so great as the fault which itsought to remedy, were in themseivesserious. The pending bill does not go asfar as that 1937 recommendation.

A' proposal for creation of an admin­istrative coUrt came before the SenateJudiciary Committee in 1938 and exten­sive hearings were held. In connectionwith those hearings, the Judiciary Com­mittee issued a committee print elabo­rately analyzing the administrative pow­ers conferred by statute. That was inthe third sesslon of the Seventy-fifthCongress. In the folloWing year, 1939,the Walter-Logan administrative proce­dure bill was favorably reported to theSenate from the Committee on the Judi­ciary. That was during the Seventy­sixth Congress, llrst session, and the re­Port I have mentioned was senate Re­port 422 of that Congress, reporting o~

Senate bill 915 of that Congress. In thethird session of the Seventy-sixth Con­gress, the Walter-Logan' bill was re­parted to the House of Representativeswith amendments. The bill eventuallywas passed by the Congress. but wasvetoed by the President iii 1940. partlyon the ground that action should awaitthe final report of a committee which hadbeen apPointed 2 years earliel' to stUdythe entire situation.

The committee Which the Presidenthad In mind' was the so-called AttorneyGeneral's committee, which had beenappointed in December 1938. The back­ground of that committee was a renewed

2150 CONGRESSIONAL RECORD-SENATE MARCH 12suggestion from the Attorney Generalconcerning the need for procedural re­form in the wide and growing field ofadministrative law. The President hadconcurred in the Attorney General's rec­ommendation for the appointment of a­commission to make a thorough surveyof existing practices and procedures, andto point the way to improvements, andhad authorized the Attorney General toappoint a committee for that purpose,The committee was composed of Govern­ment officials, teachers, judges, and pri­vate practitioners.

The Attorney General's committeemade an interim report in January 1940.The staff of that committee prepared,and during 1940 arid 1941 issued, a seriesof studies of the procedures of the prin­.cipal administrative agencies and bu­reaus in the Federal Government. Exec­utive sessions of the committee were heldover a long period, and representativesof Federal agencies were heard at suchsessions. The committee also heldlengthy public hearings. It then pre­pared and issued a final report whichwas exhaustive and voluminous. TheSenate should be informed that the Judi­ciary Committee, in framing the billwhich is now before the Senate, has hadthe benefit of the factual studies andanalyses prepared by the Attorney Gen­eral's committee.

Several bills were introduced in 1941,as the outgrowth of the work of the At­torney General's committee. Hearingson these bills were held during the springand early summer of that year. Thematter was postponed, however, becauseof the international situation then eXist­ing, and the apparent need for concen­trating on matters of national defenseand, soon afterward, of actual war.However, all interested administrativeagencies were heard at length during the1941 hearings, and the proposals thenpending involved the same basic issuesas does the present bill.

On the basis of the studies and hear­ings in connection With prior bills on thesubject, and after several years of con­sultation with interested parties in andout of official positions, identical bills onthis subject were introduced in June 1944,Senate bill 2030 of the Seventy-eighthCongress in the Senate, and House bill5081 in the House. Introduction of thesebills brought forth a large volume of fur­ther suggestions from every quarter. Asa reSUlt, a revised and simplified bill wasintroduced at the opening of the presentCongress, on January 6, 1945. This billwas Senate biil 7, introduced in the Sen­ate by the chairman of the JudiciaryCommittee of the Senate; and an identi­cal measure, House bill 1203, was intro­duced on January 8 in the House ofRepresentatives by the chairman of theJudiciary Committee of that body.

A great deal of informal discussionwith interested parties followed the in­troduction of these two bills. In the lat­ter part of June 1945 the Judiciary Com­mittee of the House held hearings on theHouse bill. Prior to those hearings theHouse committee and the Senate Com­mittee on the Judiciary had requestedadministrative agencies to submit theirviews in writing. -All submissions werecarefully analyzed and, with the aid of

representatives of the Attorney Generaland interested private organizatiOns, inMay 1945 there was issued a Senate com­mittee print setting forth in parallel col­umns thebilI as introduced and .a tenta­tively revised text.

Once more interested parties in andout of Government were invited to sub­mit, and did submit, comments orally or­in writing on the revised text. Thesewere analyzed by the staff of the SenateCommittee on the Judiciary, and a fur­ther committee print was issued in June1945. This committee print set forth, infour parallel columns, first, the text ofthe bill as introduced; second, the textof the tentatively revised bill preViouslypublished; third, a general explanationof provisions with reference to the reportof the Attorney General's committee onadministrative procedure and other au­thorities; and, fourth, a summary ofviews and suggestions received.

After the preparation and publicationof this committee print, the AttorneyGeneral again designated representativesto hold further discussions with inter~

ested agencies and to screen and furthercorrelate agency views, some of whichwere submitted in writing and some Qral­ly. Private persons and representatives-of private organizations also participatedin the discussions at that time.

After completion of those discussionsthe committee drafted the bill in the formin which it has been reported and is nowbefore the Senate. The Attorney Gen­eral has reported favorably on this bill,and I call the attention of the Senate tothe text of the Attorney General's report,which appears as Appendix B of the com­mittee's report.

Mr. President, I have gone rather fuIly ­into the background of this bill and thevarious steps which were taken prior toits presentation to the Senate, because Iwish every Member of this body to knowand realize that not only the generalSUbject, but every detailed provision ofthe bilI, has had the most careful con­sideration possible. The bill has theapproval of the Judiciary Committee ofthe Senate. It has the active supportof the Attorney General. Not _oneagency in the executive branch of- theGovernment is on record as opposing it.The American Bar Association has en­dorsed it wholeheartedly. The bilI has,in short, the kind of Virtually unanimoussupport which would be expected in thecase of a bill which has received suchvery lengthy, and very full, and meticu­lous consideration.

It has been the purpose of the Com­mittee on the JudIciary, throughout thelengthy process of consideration whichI have outlined, to make sure that nooperation of the Government would beunduly restricted by the bilI. The com­mittee has also taken the position thatthe bill must reasonably protect privateparties even at the risk of some inci­dental or possible inconvenience to, orchange in, present administrative opera­tions. The committee is convinced,however, that no administrative func­tion is improperly affected by this bill.

Admittedly, this is a complicated bilI,but it deals with a complicated subject.I wish to say-and I take no credit forit-that this bill represents one of the

finest pieces of legislative draftsmanshipin my experience. That is the naturalresult of the lengthy process of writingand rewriting, involving careful atten­tion to every detail, and to every nicetyof expression, which I have already out­lined to the Senate.

Perhaps it might be well at this timeto emphasiz~ that this bill is a coherentwhole; no section or paragraph of thebilI is completely independent; all partsof it are closely interrelated. The billmust be read and considered asa whole,and in this case the whole is considerablymore than the sum of its parts,

Mr. President, without attempting tominimize the many problems with whichthe committee dealt,I want to point outto the senate the four principal- prob­lems Which had to be solved. Thesewere, first, to distinguish between difl'er­ent types of administrative operations;second, to frame general requirementsapplicable to each such type of opera-

.tion; third; to set forth those require­ments in clear and simple terms; fourth,

-to make sure that the bill was completeenough to cover the whole field.

As it has. been reported to the Senate,_the committee feels that it has avoidedthe mistake of attempting to oversim­plify this measure. It has not hesitated,therefore, to state functional classifica­tions and exceptions where those couldbe rested upon firm grounds. In so-doing, the committee has followed theundeViating policy of dealing with typesof functions as such and in no case deal­ing with administrative agencies byname. That point is important, and Iwill repeat it if I may. The committeehas not deViated from the policy of deal­ing with types of functions as SUCh, andthe bill in no case deals with adminis­trative agencies by name.

For example, certain war and defensefunctions are exempted under the bill,but there is no exemption of the War orNavy Departments in the performance oftheir other functions. Obviously itwould be folly for the committee to pre­sume to distinguish between "good"agencies and "bad" agencies, and thereis no attempt in the bill to make such adistinction.

To cite another example, the legiti­mate needs of the Interstate CommerceCommission have been fully considered,but the Commission has not been placedin a favored position over other Govern­ment agencies by exemption from thebilI. To state the matter another way,the committee feels that administrativeoperations should be treated as a whole,lest the neglect of some link should de­feat the purposes of the bill. In thisconnection, I wish to call the attentionof Senators to the chart on page 9 of thecommittee's report, which emphasizesthe committee's approach, by shOWing, indiagram form, how the principal sectionsof the bill are interrelated.

I think it will be well at this point togive the Senate a brief comparison be­tween the pending bill and the Walter­Logan bill, and between it and the rec­ommendations of the Attorney General'scommittee.

The Walter-Logan bill. which was ve­toed by the President, differed materiallyfrom the bill now before the Senate, The

1946 CONGRESSIONAL RECORD-SENATE 2151WaIter-Logan. bill, while distinguishingbetween rer;ulations and adjudicationS,simply required ' administrative hearingsfor each,and provided special methods ofjUdicial review. More parti.c1.l~arJ.y, Inthe matter of general regulations, theWalter-Logan bill failed to distinguishbetween the different classes of rules. Itstated that rules should be Issued within1 year after the enactment of the statu­tory authority. It required a mandatoryadministrative review upon notice anphearing within a year, and set up a sys­tem of judicial review through declara­tory judgments by the Court of Appealsfor the DlstrIctof Columbia within alimited time after the adoption of any

, rUile.In the adjudication of particular cases,

the Walter-LoiaiIl bi1lalso proVided foradministrative neartngs of any contro­versy before a board of any three em­ployees 'of any agency. Decisions of suchboa.rds weve to be made within 30 days,under the Walter-Logan bill,and weresubject to the apparently summaryap­proval or modification of the head of theagency or his deputy. Ontheotherha,nd,independemt commisSions--withnot lessthan tlilree members sitting-were re­quired to hold a further hearing aner anyhea.rmg by an examiner. A sPecial funnof judicial review was provided for a.lIYaQm.inistra1live adMicatwn. A iIong list,of exemptions of agencies,by name, wasinclUded in the Walter-Logan <bill.

Now let me point out some of tbees­sential respects in which the p.ellldingbiBdUfers from the Walter-Logan bill. Thebill now beiln'e the senate diftteremtiatesthe several types 0frules. It requires noagencY bearings in :connectianwitheitherregulations or adjudications unless stat­utes AlreadY do so in particular cases,thereby preserving right80f intlivtdualtrials de novo. Where statutory hearingsare otherwise prOVided, this bill ftlis insome of the essel1'ltial reqwrements; xndit provides for a sPecial c1'aSsfilfseml­indePendent suboI'dinate hearing offi­,cers.

The bill includes several types of in­cidental proceduces. rt confers nu­merous procedural rights. It limits a;d­ministrative penalties. It eontains morecomprehensive provisions for judiCial re­view for the redress oIf any legal wrcmg.And, since it is drawnentire]y \iPOIl afunctional basis, it contains no exemp­tions of agenoies as su.ch.

The pending bill is more complete thanthe 'solution favored by the mAjority ofthe Attorney General's committee, blltis,at the same time, short.er and moredefinite than the proposal of the minorityof that committee. While it :f<lilows gen­era.Uy the views.of gOOd administrativepractIce as expressed by the whole of thatcommittee, it differs in several imPortantrespects.

.The bIll provides that~en'Cies Jtiay:choose whether their examinel's ,shallmake the initial decisi_ or Il'lf:'relY~mmend a decision, whereas the At-­tarney General's committee tnadeDlatr­datary a decision by examiners.

The bill proVidessmne generallilmi­tations UP0ll administrativePDwet'sandsanctions, pamewa.rly in the rigoreusfield of licensing, while the Attorney Gen-

eraPs oommittee did not touch upon tha'tsubiect.

This bill relies upon independence, saJ­aryseculity, amltenure during good be­havior of examiners within the frame­work of the civil service, whereas the At­tormeyGeneral's committee favoredshort-t,erm appointments approveli by aspeoial Office of Administrative Pro­cedure.

If Senators desir-e to consult a moredetailedcoIl1parison of the pending biU,with full references to the .report of theAttorney General's committee, such acompBJ'ison is to be found in the thirdparallel eolumn of the cormnittee printissued by the Senate Judiciary Commit­tee in June of 1945.

I cannot emphasize too strongly thatthe bill now before the Senate is not aspecification of the details of adminis­trative procedure. Neither is it a codifi­cation of administrative law. It repre­sents, instead, an outline of minimumbasic essentials, framed out Of long con­sideration and in the light of the com­prehensive studies I h~ve preViously men­tioned.

'1''0 state itcSimply, this bill is designedt{) afford partiesafl'eeted by administra­tive powers a means of knowing Whattheir rights BJ'e, and how they may beprotected. At the same time, a-dmin­istrators are provided. with a simplecourse to follow In making administra­tive determInations. The jurisdietion ofthe courts Is clearly stated. The bill thusptoVid·es for public information, admin­istrative OPeration, ~nd judicial review.

The substance of what the bill doesmay be summarized under four head­ings:

First. It provides that agencies mustissue as rules certain specified infor­mation as to their organization and pro­cedure, and also makeavaiiable othermaterials of ~trativelaw.

Second. It states the essentials of theseveral forms of administrative proeeed­ingsand the limitations on administra­tive powers.

Third. It proVides im more detail therequiretnents for administratiVle heaI'­mgs and decisions in cases in which stat­utes require such hearings.

FOU1'th. It sets forth a simplifiedstatement of judicial review designed toa1¥or4 a l'emedy for every1ega1 wrong.

The first of those four points is basic,because it requires agencies to take theinitiative in informing the public. Instating the essentials of the ·difIel'entforms of administrative proceedings, thebill carefully distinguishes between theso-called legislative functions of admin­istrative agencie8-'-where they issue gen­eral regulations-and their jlldmialfunctians-m Which they determinerights or liabilities in particuJar cases.

Quite di1ferent prQCedures '8il'e pr{)­vide<! by the bUI. for the legislatIve andJudicial functions of adminIstrative.agencies. In the r.a!e-making,that is"legislative, . function the bill prevWesthat, with certain exceptions, .agelD:Ciesmust publish notice and at leastpennit.interested parties to submit their viewsin. 'WtitiIng for agenCY consideration be­fore issuing generairegwations. Nohearings are required by the bili unless

statut"BS a.lready do so in :a particular.case. Similarly, in adjudications-thatis, t1lle jU4i.c'ia1 function-no ageneyhearings :are required unless statutesalready do so,but in the latter case themode of bearing ~d decision is pre­scribed. Where existingsta.tutes requirethat either general r.egulatlions-whichthe bill calls rules-ar particularizedadjudications-which the bill ealls or­ders-shall be made after agency hear­ing orORportunity foc sllIch heMing,then section '11)f the WI sPells out toeminimum fequh-etnents for such hear­Il1gs; section 8 states howdectsions shallIDe made thereafter,and ,section 11 pro­mes for examiners to preside at hear­ings and make or participate in deci­sions.

While the 8Idministrative power andprocedure pmVisions of sections 4, 5, '8,'1,8, and 11 are law apart from court re­view, the provisions for judicial reviewprovide partieswitb a method <f! .enf()rc­jng their rights ill a proper ease. How­ever, it Is expressly provided that theiudicial review provisions are DOt opera­tive where statutes otherwise precludejudicial review, or where agency actionis by!J.:aw ccltrumitted to ageBcy discretion.

Five types of provwonscompose thisbill. They are~

First. PTovisiclns which are largelyformal, such as thesectlions setting forthtile We, definItions, :aoo rules 'Of con­struction.

Second. Provisions whioh requireagencies to publish tt.:ma.ire available in­formationtIID adminiistrative iawandprocedure.

Third. Provisions for different kindsuf procedures sum as rule-mlilking, ad­judications, and miOOetlanoous matters,

.as well as forlimttations upon saneti'Onsand powers.

Fourth. ProviSi011s concerning the de­ta~I for hearings .and decisions as well asfor examiners.

Fifth. PrOV'islons fl>r judicial review.I 'desire to emphasme the fifth type of

provisions, namely, provisrons for judi­ciailrewew, because it is SG!l1ethin~ inwhich the American public has been andis m:uchooncemed, hBJ'keningback, ifwe may, to the Constitution of the Urlitedstates, which sets UP the jud:iciail branchof the Government fur therooress ofhuman wrongs and for the enforcementof h:uman right'S. •

As r have already pointed {lut, thebi1lis so drafted that its seventl sectionsand subordinate proVisions are closelykn!it.Thesubsta,ntiveprovisions ·of thenit! should be read apart fr{)m the purelyf011na,1 provisions and minor functi0ualdistinctions. The definitions in section2 :are important, but they do not illdi­ea;te the scope of thebIH,sinoe the sub­sequent provisions make many 1unc­tilmal distinctions and exceptions. The'public infiOrmation provisions l)f sectionS are of the bl"oadest appllcal;iMl .be­:cause, whHe same functioODS and some op­erations may :not lend themselves to fm:­malli>rocedure, all administrative oPera­mons .sholild as a matter of policy bedisclosed to the public except as secrecyllUlY be obviQUSly required til' only in­ternal ageney "hollsek~eping" arrange­ments may be involved.

2152 CONGRESSIONAL RECORD-SENATE MARCH 12sections 4 and 5 of the bill prescribe

the basic requirements for the makingof rules and the adjudication of par­ticular cases. In each case, where otherstatutes require opportunitY for anagency hearing. sections 7 and 8 set forththe minimum requirements for suchhearings and the agency decisions there­after, while section 11 provides for theappointment and tenure of examinerswho may participate. Section 6 pre­scribes the rights of private parties in anumber of miscellaneous respects whichmay be incidental to rule making, adju­dication, or the exercise of any otheragency authority. Section 9 limitssanctions, and section 10 provides forjudicial review.

Again, I wish to call the attention ofSenators to the chart on page 9 of thecommittee report on the bill.

Mr. President, an analysis of the bill,section by section, may prove helpfulat this point. If Senators will refer totheir copies of the bill, and follow meas I gO along, I shall undertake to dis­cuss each section of the bill in its properorder.

Section 1 refers to the title of the bill,and provides that the measure may becited as the Administrative ProcedureAct. Although this short title has beenchosen for the sake of brevity, Senatorswill note. as I have previously pointedout, that the bill actually provides forboth administrative procedure andjudicial review.

Section 2 contains the definitions.The word "agency" is defined by ex­

cluding legislative, jUdicial, and Terri­torial authorities, and by including anyother "authority" whether or not within.or subject to review by, another agency.The bill is not to be construed to repealdelegations of authority prOVided by law.Expressly exempted from the term"agency." except for the public informa­tion reqUirements of section 3, are:first, agencies composed of representa­tives of parties or of organizations ofparties; and, second, defined war au­thorities including civilian authoritiesfunctioning under temporary or namedstatutes operative during "present hos­tilities,"

The term "person" is defined to in­clude specified forms of organizationother than agencies,

The term "party" is defined to includeanyone named, or admitted, or seeking,and entitled to be admitted, as party inany agency proceeding except thatnothing in the SUbsection is to be con­strued to prevent an agency from ad­mitting anyone as a party for limitedpurposes.

The term "rule" is denied as anyagency statement of general applica­bility designed to implement, interpret.

. or prescribe law. policy. organization,procedure, or practice requirements,

The term "rule making" is defined tomean agency process for the formula­tion, amendment, or repeal of a rUle, andincludes any prescription for the futureof rates, wages, financial structures, andso on.

The term "order" is defined to meanthe final disposition of any matter. other

than rule making but including licensing,whether or not affirmative. negative. ordeclaratory in form,

The term "adjudication" is defined asthe agency process for the formulation.of an order.

The term "license" is defined to in­clude any form of required official per­mission, such as certificate, charter, andso on.

The term "licensing" is defined to in­clude agency process respecting thegrant, renewal, modification, denial.revocation. and so forth, of a license.

The term "sanction" is defined to in­clude any agency prohibition, withhold­ing of relief, penalty, seizure. assess­ment, requirement, restriction, and so on.

The term "relief" is defined to includeany agency grant, recognition, or otherbeneficial action.

Mr. DONNELL. Mr. President, willthe Senator yield?

Mr. McCARRAN. I yield.Mr. DONNELL. Will the S:lnator be

kind enough to permit me to ask him aquestion in regard to one of the defini­tions in section 2? I am not clear asto the meaning of the lar.guage whichreads as follows:

Except as to the requirements of section3, there shall be exclUded from the operation

. of this act (1) agencies composed of repre­sentatives of the parties or of representa­

. tives of organizations of the parties to thedisputes determined by them.

I should greatly appreciate it if theSenator would be kind enough to amplifysQmewhate his explanation of that pro­vision.

Mr. McCARRAN. Section 2 (a) ex­empts from the operation of the actagencies composed of representatives ofthe parties, or of organizations of theparties, to the disputes determined bythem-except for the reqUirements ofsection 3 relating to the publication ofrUles, orders, and decisions. The effectof that language is to exclude. from allbut section 3, such agencies as the Na­tional Railroad Adiustment Board,Other boards composed of such repre­sentatives, under the Railway Labor Actor similar statutes, would be likewise ex­empt. It may also be noted that variousfunctions of such agencies as the Na­tional Mediation Board and the RailroadRetirement Board are excluded fromprovisions of the act by the applicablelanguage of later sections.

Mr. DONNELL. I thank the Senatorfor the explanation.

Mr. REED. Mr, President, will theSenator yield?

Mr. MCCARRAN. I yield.Mr. REED. I confess a lack of under­

standing of the bill. I have had con­siderable experience with some of theGovernment agencies, particularly theInterstate Commerce Commission. Overthe years the Congress has laid downrules of procedure instructing the Inter­state Commerce Commission as to how toact in certain cases in the matter of ratemaking, valuations. and orders. All thatIs prescribed by statute. Is there any­thing in this bUl that would interferewith that procedure?

Mr. McCARRAN. There is nothing inthis b11l which would interfere with suchprocedure.

Mr. REED. I was a little uncertain,due, of course, to my lack of understand­ing of the bill and my lack of oppor­tunity to give it the study which it re­quires.

Mr. McCARRAN. I wish to make itvery clear to the Senator, because I ap­preciate the fact that he has had longexperience in· practice before the Inter­state Commerce Commission, that thereis nothing in this bill which would takeaway from the Interstate CommerceCommission anything in the way offunctions.

Mr. REED. And it would not changeits method and rule of doing businesswhen the method and rule is founded onstatutory authority?

Mr. McCARRAN. That is correct.Mr. REED. I thank the Senator.Mr. McCARRAN. Let me say to the

Senator from Kansas that that has beenone of the great problems we have hadto work out in the long months of studywhich we have devoted to the bill. Wedid not wish to disrupt or change anything that was statutory; and yet wewanted to establish something whichwould prescribe and define the avenueby which the individual citizen couIdgain access to a public agency whichwould touch his private life, and wewished to find for him a way throughthe procedure.

Mr. REED. I wish to pay tribute tothe Senator from Nevada for the greatamount of hard work he has done, andthe vast amount of ability and intelli­gence which he has brought to bear uponthis efIort, whicb I hope will be success­ful. In the light of the great expansionof governmental activities into the pri­vate lives of our citizens, some protec­tion of the citizen against these agenciesshould be provided. It is long overdue.I extend to the Senator from Nevada myappreciation of the great amount ofwork he has done, and the great abilityhe has brought to this task.

Mr. McCARRAN. I am very gratefulto the Senator from Kansas. I haveone ambition in life, and that is thatthis bUl. when enacted into law-as Ihope it will-Will become a monumentto the Congress of the United States forits careful stUdy, and a monument to theCommittee on the Judiciary of the Sen­ate for the time, zeal, and diligencewhich that committee has put into theconstruction of the bill.

Mr. AUSTIN. Mr. President, will theSenator Yield?

The PRESIDING OFFICER (Mr.STEWART in the chair). Does the Sen­ator from Nevada yield to the Senatorfrom Vermont?

Mr. McCARRAN. I yield.Mr. AUSTIN. Before the Senator

leaves section 2, I should like to inquireabout a phrase which is new to me. Irefer to the expression "legal wrong"which appears in section 10 (a) on page34, line 16, and which is used for thepurpose of describing a person who isentitled to review. My inquiry is forthe purpose of having the RECORD show

1946 CONGRESSIONAL RECORD-SENATE 2153what the intention of the author of thebill is with respect to the combinationof words "legal wrong." For a long timewe have known Just what the meaningof "legal injury" is. It seems to me thatby the use of the word "wrong" a muchbroader category, of individuals is ad­mitted to review. I suppose that wasthe benign purpose of the author of thebill; but I should like to have it in theRECORD as a definition, in the course ofhis address, While he is still on the sub­ject of definitions., •

In Bouvier's Law Dictionary, volume 3,page 3500, appears a definition of"wrong."

In its broad sense, it Includes every Injuryto another, independent of the motive caus­tng the injury (Union Pacifio Bailway Com­pany v. Henry, 36 Kans, 570,,14 Pac. 1) •

There is more to the definition. Is itthe intent of the author of the bill tohave the words "legal wrong" compre­hend the scope of tbe definition of"wrong" as it appears in Bouvier's LawDlctiona,ry?

Mr.' McCARRAN. I have not in mindthe language to which the able Senatorrefers, but the language as I heard himread it is rather common language ad­dressing itself to that subject. My 'con­ception of the term "legal wrong" is setforth in the committee report on page26:

The .phrase .. legal wrong" means lSUCh· awrong as 18 1IJ)eCi1l:ed In subsection (e) ofthis section. It means that something morethan mere adverse personal e1fect must beshown-that is, that the adverse effect mustbe an megal effect. The law so made relevant18 not j1JBt constitutional law, but any and allappliCBblp law.

Let me read further in connectionwith the construction which I place onthe term:

Reviewing courts are required to decideall relevant questiODll of law, interpret con­stitutlonal and statutory prov1s1ODl1. and de­termine the meatltng ar applicablllty of anyagency action. Th,ey must (A) comp!!l actionunlawfully Withheld Or unrelUlODablydeiayedand (B) hold unlaWful any actton, findings,or conclusions found to be (1) arbitrary. (2)contrary to the Constitution, (8)CODtr&rY tostatutes or short of statutory right, (4)Wltb­out observance of procedure required by law,(5) 11D8UPported by SUba1;aIltial'evidenceupon the admln18trative record Where tbeagency isauthortBed by statute to hold bear­tngs SUbject to sections '1 and 8, or (6) 11Dwar­ranted by the facts 80 far as tb8 latter' aresubject to trial de novo.

I have tried to anticipate thequestlonwhich the able Senator has propoundedto me. I am glad that he asked. thequestion. I have tried to deflrie the term.because I thought It might be well tohave it defined In the RECORD. .

Mr. AUSTIN', !If. President, will thesenator further yield?

Mr. McCA.RR.AN. I yield.Mr. AUSTIN. I see the application of

what the distinguished.Senator has Jest;stated to the following part of the clausein section 10 (a) n~J, "or adverselJaffected or aggri6ved by such action With­in the meaning of any relevant statute."That is another category. of Ulen,~women Who are entiUed tc> ~v1ew•. :Butmy Jluestionwas 1iJn1ted tc> the ~orrdescribed as "any pel'$)n sufteMi legal

wrong because of any agency action." Onthis point I should like. to read fur1ih<\rfrom the definition of "wrong," beca~this is a new use of the word. U theauthor of the bill'intends by the use ofthe term "legal wrong" what is. here setforth, I should like to. have it in theREcORD, because it would save' a greatdeal of controversy. May I take the timeof the Senator to read ·further from thedefinition of "wrong" in BOUVier's LawDictionary? .

Mr. McCARRAN. Yes; I should like tohave the Senator read it.

Mr. AUSTIN. The definition is asfollows:

Wrong. An injury; a tort; a violation ofright.

In its broad sense, it includes every Injuryto another. independent of the motive caus­Ing the Injury (Union Pac. BU. Co. v. Henry(36 Kan. 570, 14 Pac. 1)).

A wrong is an invasion of right to thedamage of the party who lIwren it. It con­sists in the injury done, and not commonlyin the purpose or mental Or physical capacityof the person or agent doing it. . It mayormay not have been done with !;lad motive; thequestion of motive is usUally a question ofaggravation only (WiZltams v. Hays (14S N. Y.447. 88 N. E. 449, 26 L. R. A. 158. 42 Am. st.Rep. 743)).

In its most usual sense, wrong stgnlftee antnjury committed to the person or propertyof another, or to h18 relative rtghts11Dcon­nected wi1ib contract; and these wrongs ar#tcommitted with or without torce.. But in amore extended signtflcation, wrong Includesthe Violation of a contract; a fatlure by a man'to perform b18 undertaking ar promise is awrong or injury to him to whom it was made(3 Bla. Com. 158).

A public wrong 18 an ad which is injuriousto the public generally, commonly known bythe name ot crime, misdemeanor, or offense;and it 18 punishable in vartolJ6 ,wa.ys, such astndict111ents. summary proceedings and. uponconviction, by death, imprisonment, fine, etc.

Private wrongs, whll:b are Injuries to in­diViduals, unaffectlng the public;, these arerectressed by actions fQr damages, etc. seeRemedles; Tort. "

Fora' claBBt11catlon of wrongs. see Bolland.Jurisprudence 270.

The combination of words W:;ed here Jsvery -sign1flcsnt. The adJect~ve "legal"is s limiting adjective; and, as it haS beeI;lapplied in juriSPrudence to "l,nJury," it isdefined' as follOWS in WordS and PhraseS,'fouith series, second volume; page' 548:

"Legal Injw:Y" muet be vlo1a~Qi,. of IOplelegal right and 18 .eustlnct from "damage,"which is harm, or 10118, sustained by injury(Combs v. Hargis Bank err ~ru.t Co. (27 8. W.(3d) 955,11116,284 Ky. 202).·

For the sakli of the future of those prac­ticing under this estimable bill, I think itwould be well to have the REcOUD showWhether the disttnguished author of thebiD regards the category of pe1llPD,S en:;'titled to. review which.is here'. d$ctt})ed,that is,''any person suftertng legalwrong," as any person who has S1liferedin the manner described in the quotationfrom Bouvier's Law DictionarY.

Mr. McCARRAN.·· Taking Bouvier andWords and Phrases combined; and takingthe decisions of the e<mts of·last resort,to whoSe language we have aecess, I8boUl4 answer the senattJl'~s." ThatIs. I take Intc> eoDS1deratJon aU the defl•.JIitiODS whicb apply todeflnetbS term,UU1 I reapectf11l17 refer to t11e committee

report, which I read a moment ago. Itme('os that something, more than mereadverse personal etIect must be shown;tllat is, that the adverse etIect must be anillegal efiect, So. to Bouvier, to Words&I;lQ Phrases, and to the decisions to whichthe able Senator refers, I also add theexprilssion contained in the committeereP9rt.

Mr. AUSTIN. I thank the Senator.}.Jr. McCARRAN. Let me go a little

further, because I am Vl\XY grateful tothe Senator for bringing UP this ques­tion. We asked the Attorney Generaland the Department of Justice to com;'ment on this bilL I now read to theSenate the Attc>rney General's comment:

Section 10 (a): Any person BUffering legalwrong because of any agency action, or ad­versely affected or aggrieved by such actionwithin the meantng of any relevant statute,shall be entitled to Judicial review of suchaction. This rel1ects existing law. In Ala­bama Power Co. v. Ickes (802 U. 8. 464), theSupreme Court stated the rule concerningpersons entItled to judicial tevlew. Othercases baVlng an important bearing on th18subject are: Massach.tI.$etts v. MeUon (2W!U. S. 447), The Ch.tcago Junction Cfl8e (2f4U. S. 258), Sprunt err SOn v. United states(281 U. 8.,249), and Perkins v. Lu,kens SteelCo. (810 U. I:t 118) ..An important decisionttlterpretttlg the meaning a! the terms "ag­grieved" and "adVersely affected" \s FederalCommunication. Commtsllion v. SandersBros. BaIUO Stat1.on (309 U. S. 4'10).

Mr. President, I have referred the Sen:'ator to that expression coming from theAttorney General, in connectiOn With thisbill, to indicate to him and tc> the Senatethe meticulous stUdy which we have triedto give to this blll, so that we !nay con'"strue the terms in such a. way that theremay be no CI1verg'ence of Views when weget through.

I realize that the layman says this isan intricate blll. In a way it is, and yetin a way it simpliftes itself in practice.

Mr. AUSTIN. Mr. President, wtntheSenator yield? ,

The PRESIDING OFPICER (Mr. TuN­NELL in the· chair) . Does the senatorfrom Nevada Yl~ld to the senator fromVermont?

Mr. McCARRAN. I yield.W. AUSTIN. I wish to compliment

the Senator upon his courage in launch­ing Out with a new phrase like this, Per­sonallY, I 'think'it is an improvement inthe law.

Mr. McCARRAN. I am very gratefulto the Senatc>r.

Mr. DONNELL. Mr. President, willthe Senator yield for ,an inquiry?~r; MOCARRAN; I yield.Mr. DONNELL. I' should like to ask

~. distingUished senator a question.section 10 of the .bUl recites in partthat-

Except 80 far as (1) statutes precludejudicial review or (2) agency action 18 bylaw coimnttted to agency discretion-

(a) Right of reView: Any person sufferinglegal wrong beCause of any agency action, aradveraelyatfected ar aggrieved by such ~­

t1on. WI~ln the meaning of any relevants"'tute, abaU be entitled to judicial reVieWthereof. '

It has oceurred to me the contentionmtaht bernade by someone in undertak­ing tGana]pe thunrieasure that in an.,easem,wblch discretion is 'comnl1tted

2154 CONGRESSIONAL RECORD-SENATE MARCH 12to an agency, there can be no judicialreview of action taken by the agency.The point to which I request the Senatorto direct his attention Is this: In a casein which a person interested asserts that,although the agency does have a discre­tion vested in it by law, neverthelessthere has been' abuse of that discretion,is there any intention on the part of theframers of this bill to preclude a personwho claims abuse of diScretion from theright to have judicial review of the actionso taken by the agency?

Mr. McCARRAN. Mr. President, letme say, in answer to the able Senator,that the thought uppermost in present­

.ing this bill is that where an agency with­out authority or by caprice makes a deci­sion, then it is subject to review.

But in answer to the first part of thesenator's question-namely, where a re­view is precluded by law-we do notinterfere with the statute, anywhere inthis bill. Substantive law, law enactedby statute by the Congress of the UnitedStates, granting a review or denying areview is not interfered with by this bilI.We were not setting, ourselves up toabrogate acts of Congress.

Mr. DONNELL. But the mere factthat a statute may vest discretion in anagency is not intended, by this bill, topreclude a party in interest from haVinga review in the event he claims there hasbeen an abuse of that discretion. Is thatcorrect?

Mr. McCARRAN. It must not be anarbitrary discretion. It must be a judi­

'cial discretion; it must be a discretionbased on sound reasoning.

Mr. DONNELL. I thank the Senator.Mr; _AUSTIN. Mr. President, will the

Senator yield to me once more?Mr. McCARRAN. Yes; I yield.Mr. AUSTIN. Is it not true that

among the cases cited by the distin­guished Senator were some in which noredress or no review was granted, solely,because the statute did not. provide for areview?

Mr. McCARRAN. That is correct.Mr. AUSTIN. And is it not also true

that, because of the situation in whichwe are at this moment, this bill is broughtforward for the purpose of remedyingthat defect and providing a review toall persons who suffer a legal wrong orwrongs of the other categories men­tioned?

Mr. McCARRAN. That is true; thesenator is entirely correct in his' state­ment.

Mr. President, I now continue. I wishto say that I am exceedingly grateful forthe interruptions; in fact, I do not con­sider them interruptions, but I considerthem amplifications of the tboughtsought. to be expressed by this proposedlegislation.

Let me say to the senators now pres­ent--and I think I can speak for theCommittee on the Judiciary-that I donot believe a more important piece oflegislation has been or will be presentedto the Congress of the United Statesthan toe one which I am trying in myhumble way to explain to the Senate to­day, because it deals With somethingwhich touches the most lowly as weIlas the most elevated and lofty citiZen inthe land. It touches every phase and

form of human activity, and it deals withthat which at the opening of my state­ment I described as the fourth dimen­sion or fourth branch of' our democracy.In other words, by the Constitution theexecutive, the legislative, and the judi­cial branches of our Government wereset up; but now we have a fourth branch,the administrative ferm of our Govern­ment.

Mr. SMITH. Mr. President, will theSenator yield?

Mr. McCARRAN. I yield to the Sena­tor from New Jersey.

Mr. SMITH. I should like to remarkthat I had the honor of being on theJudiciary Committee· when this bilI wasfirst brought up; and it was because I feltso strongly what the distinguished Sen­ator from Nevada has just said-namely,the vital importance of a measure of thiskind-that I asked the privilege of hav­

.ing the committee postpone reporting

.the bill until I had had an opportunityas the Senator from Nevada will recall,to send copies of the bill to friends ofmine in the legal profession, both In theState of New Jersey and in the State ofNew York, and to ask for their jUdgment.I wish if I may to pay the Senator fromNevada the tribute of saying that, with­out exception, the distinguished juristswho examined this bill said that itwasoneof the finest measures they had ever seen,and they were wholeheartedly behind itand urged its passage as s()On as possible.I may say that certain minor suggestionswere made, as the Senator may recall,with reference to possible changes hereand there, and that points arose such asthose which have arisen here on the fioor.But I cannot allow this occasion to passwithout paying my tribute to the Sen­ator from Nevada for the great job whichhe has done, and for the care which hehas taken over a period of possibly 3years to bring before this body one of themost important pieces of judicial legis­lation of which I can conceive. I wishto go on record as supporting this meas­ure and as supporting the Senator fromNevada in his effort to secure its pa:ssage.

Mr. McCARRAN. Mr. President, I amvery grateful to the senator from NewJersey for what he has said. I may saythat, because of the Senator's outstand­ing contributions to the principles of law,and the fine guidance which the chair­man of the committee received at hishands, it was a great regret to the chair­man of the Judiciary Committee to learnthat it was not possible for the Senator'from New Jersey to remain with the com­mittee.

Mr. MORSE. Mr. President, will theSenator from Nevada yield to me.

Mr. McCARRAN. I yield.. Mr. MORSE. Mr. President, I wish tocommend the Senator' from Nevada forthe great work which he has .done in thepreparation and presentation of this billto the Senate. As one who has taughtin the field of administrative law formany years, I may say that the bill sup­plies what has been to me a very ob­vious need in the administration of gov­ernment by law, in that it recognizes therelationship between procedural rightsand substantive rights as such rightsrelate to administrative law.

For many years I have spoke'n andWritten in support of the basic principlesembodied in the pending. bill. I par­ticularly commend the Senator fromNevada for the recommendation con·tained in the bill of at least a rule ofevidence stronger than. the some-evi­dence rule. As I understand the bill inits present form, it recognizes and ap­proves the substantial evidence rule. Ibelieve that in the future, however, asthe Congress deals with specific admin­istrative law agencies and tribunals, wewill have to recognize that in some par­ticular instances we need an evidencerule even stronger than the substantialevidence rule. . In many instances itseems to me that the weight-of-evidencerule should be the rule used to goverQjudicial reviews of the decisions of manyadministrative tribunals.

Mr. McCARRAN. Mr. President, I amvery grateful to the Senaar from Oregonfor his observations, and for his knowl­edge of the law.

I wish now to proceed section by sec·tion with an explanation of the bill.

Mr. BARKLEY~ Mr. President, beforethe senator continues. I ask that he yieldto me because he might wish to have inmind, in making his explanation, whatI am about to say. '

several years ago there was before theCongress the Walter-Logan bill, whichwas an administrative law measure. Iwas not in favor of thli.tmeastlre. . I op­pOsed it as actively as I coUld. I feltthat under the terms of the bill the agen­cies of the Government established byCongress would be woefully handicappedin carrying on their functions, becauseof interminable delay and long-drawn­out proceedings which might be involved,thereby reSUlting in nullifying acts of thelegislative departments until such timeas the acts would be of no value evenif carried out. Congress passed the billand President Roosevelt, as I recall, .ve­toed it.

The pending bill is a new effort to dealwith the subject about which we all ad­mit something should be done.

When the senator expains the termsof the bill section by section, will it be hispurpose to show in what respect and inwhat way the Walter-Logan measure hasbeen modified, or provisions of it havebeen eliminated, so as to remove some ofthe objections some of us had to thatproposed legislation?

Mr. McCARRAN. A few days ago theable Senator from Kentucky evinced hisattitUde. with reference to the Walter­Logan bill, and I knew of his attitUdewith reference to it. Therefore, I havenow prepared a presentation of compari­sons of provisions. I have done so byway of explanation, I may say in answerto the Senator. It would be impossiblefor me to compare the Walter-Logan billpr{)vlsion by provision with the pendingbill, for the mere reason that they aretwo entirely different bills. They relateto the same subject, but they approachit in entirely different ways. However,I believe that I can illustrate the differ-ence in a few words. .

The pending bill is designed to set forthminimum procedural essentials for var­ioustypesof functions. It does not referto agencies by name. It contains no ex-

1946 CONGRESSIONAL RECORD-8ENATE 2155ceptions. It if? thus not aimed at anyparticular agency or agencies. The Wal­ter-Logan bill. on the other hand. con­tained a great many exceptions of agen­cies and subjects. Section 7 (b) wasthought to indicate either that it wasaimed at particular agencielS, or was soimperf-ectly conceived that it could notbe applied across the board. The pend­ing bill does, however, in section 2 (a),exempt war agencies, because they ltrepresumably self-liquidating, and it wasdeemed unwise to attempt to cover themat this late date.

The definitions of the Walter-Loganbill were imperfect and confusing. Ruleswere so defined as to inclUde "orders"and were limited to interpretations ofterms of statutes. That bill, therefore,failed to distinguish between substan­tive, interpretive. and procedural rules.The pending bill exempts from its pro­'cedural reqUirements all interpretive,organizational. and procedural rules, be­cause under present law interpretiverules, being merely adaptations of inter­pretations of statutes, are subject to amore ample degree of judicial reView, andbecause the problem WIth respect to theother exempted types of rules is to fa­cilitate their issuance rather than tosupply procedures.

The pending bill, therefore, appliesprocedures only to . the making of so­called sUbstantive rules, that is, throughadministrative legislation under author­ity of Congress. Other definitions inthe Walter-Logan bill are entirely dif­

.ferent from those in the pending bill,but, in answer to the senator from Ken­tucky, I believe that nothing will begained by examining those ditferenceshere.

Mr. BARKLEY. In other words,"thesenator's bill is the result of a careful

.stUdy of the whole subject made sincethe consideration by Congress of theWalter-Logan bill, and since the formalveto of that measure by the President,and the recommendation of former At­torney General Homer CUmmingS who,I belIeve. as one of the last things whichhe did before retiring, recommendedlegislation along this line without goinginto detail about it. Subsequently acommittee was appointed, perhaps by thepresent Attorney General or one of hispredecessors----

Mr. McCARRAN. A former AttomeyGeneral.

Mr. BARKLEY. A former AttorneyGeneral, all of which took place follow­Ing the consideration of the previouslegislation known as the Walter-Loganbill, or the Logan-Walter bill, I do notknow which.. However, in the main, thepending bill compIles with the recom­mendations of the various Investigationswhich have been· made since consldera­tiOR of the Walter-Logan bill with re­spect to legislation upon this subject.

Mr. McCARRAN.I would not use theword "complies." I would say that thebilltakes into consideration those stUdiesand is guided by them.

Mr. BARKLEY. I did not mean in myuse of the word "complies" that the billfollowed the recommendations word forword. but it does take 1ntoconslderationthe facts developed by the varioUs in­vestigations to which I have referred.

The committee has been, of course, wellinformed as to the validity of any rec­ommendations made upon the subject,but it does approach the SUbject fromthe standpoint of helpfulness in the ad­ministration of the law, rather than fromthe standpo1nt of undertaking to nullifywhat executive departments set up byCongress might be attempting to do.

Mr. McCARRAN. Positively, we nUl­lify nothing.

Mr. BARKLEY. That was my objec­tion to the former measure, as the Sen­ator will recall.

Mr. McCARRAN. I do recall verywell. I may say to the Senator fromKentucky that earlier in my discourseupon the pending bill I discussed thedifferentiations between the Walter­Logan bill and the Attorney General'scommittee report, an~ so on.

Mr. BARKLEY. I was necessarilycalled from the Chamber and was notpresent.

Mr. McCARRAN. . I realize that.Mr. President, section 3 of the bill con­

cerns provisions respecting public infor­mati1>n and it should be noted that thebill exempts from the public-1nformationprovisions of this section, first, mattersrequiring secrecy in the public interest,and second, matters relating solely to theinternal management of an ·agency.

Subsection (a) of section 3 concernsrules. Under this subsection everyagency is required to publish in the Fed­eral Register' its organization, its placesof doing business witb the public, itsmethods of rule making and adjudica­tion, including the rules of practice re­lating thereto, and such substantive rulesas it may frame for the guidance of thepublic. No petson is in any manner tobe required to resort to organization orprocedure not so published.

Subsection (b) of section 3 concernsopinions and orders. Under this sub­section agencies are required to publishor pursuant to rule, to make availableto'public inspection' all final opinions or .orders in the adjudication of cases ex­cept those held confidential for goodcause and not cited as precedents.

Subsection (c) of section 3 concerns~ public records, and provides that except

as statutes may require otherwise, or in­formation may be held confidential forgood cause, matters of ofiicial record areto be made available to persons properly

. and directly concerned, in accordancewith rules to be issued by the agency.

Section 4 concerns rule making. Theintroductory clause exempts from alI ofthe requirements of section 4 any rulemak1ng, so far as. there are involvedmilitary, naval, or foreign affairs func­tions, or matters relating to agency man­agement or personnel. or to public prop­erty, loans, grants, benefits, or contracts.

Mr. President, I wiSh the Senate wouldgive close consideration to what I amabout to discuss, because it is all im­portant.

Subsection (a) of section 4 concernsnotice. It provides that general noticeof proposed rule making must be pub­lished in the Federal Register and mustinclude the time, place, and nature ofthe procee<ling'S, a reference· to the au­thority under which sUeh proceedingsare held, and the terms, SUbstance, or

issues involved. However, except wherenotice and hearing is required by someother statute, the subsection does notapply 'to rules other than· those of SUb­stance, or where the agency for goodcause finds, and incorporates the findingand reasons therefor in the publishedrule, that notice and public. procedureare impracticable, unnecessary, or con­trary to the public interest.

Subsection (b) of section 4 concernsprocedures. This subsection providesthat after such notice as required by thepreceding subsection, the agency mustaJford interested persons an opportunityto participate in the rule-making, atleast to the extent of submitting writtendata, views, or argument. This subsec­tion also provides that after considera­tion of such presentations. the agencymuch incorporate in any rules adopteda concise general statement of their basisand purpose. However, where otherstatutes require rules to be made afterhearing, the requirements of sections 7·and 8, which relate to public hearingsand decisions thereon, apply in place ofthe proviSions of this subsection.

Subsection (c) of section 4 refers toeffective dates. The required pUbli.ca­tion or service of any substantive rulemust, under this provision, be made notless than 30 days prior to the effectivedate of such rule, except as otherwiseprovided by the agency for good causefound and published, or, in the case of

.rules recognizing exemption or relievingrestriction, interpretative rules, andstatements of policy.

Subsection (d) of section 4 concernspetitions, and provides that every agencyshall accord any interested person theright to petition.for the issuance, amend­ment, or repeal of a rule.

Section 5 of the bill concerns adjudi­cations. The initial provision of thissection makes it clear that subsequentprovisions of the section apply onlywhere the case is otherwise required bystatute to be determined upon an agencyhearing, except that, even in that case,the following classes of operations areexpressly not afiected: First, cases sub-

. ject to trial de novo in court; second,selection or tenure of public omcers otherthan examiners; th1l-d, decisions restingon inspections, tests, or elections; fourth,militarY naval, and foreign affairs func­tions; fifth, cases in which an agency isacting for a court; and. sixth, the cer­tification of employee representatives..

Subsection (a) of section·5 refers tonotice. Under this subsection, personsentitled to notice of an agency hearingare to be duly and timely informed 'ofthe time, place, and nature of the hear­ing, the legal authority and jurisdictionunder which it is to be held, and thematters of fact and law asserted. Where

. private persons are the moving parties,respondents must give prompt notice ofissues controverted in law· or fact; andin other cases the agency may requireresponsive pleading; In fixing the timesand places for ·heariP$s the agency mustgive due regard to the convenience and·neeessity of the parties.

SUbsection (b) of section 5. concernsprocedure. Under this subsection theagency is required first to afford parties

2156 CONGRESSIONAL RECORD-SENATE MARCH 12an opportunity for the settlement or ad­justment of issues, where time; the na­tUre of the proceeding, and the publicinterest permit; and then reqUires. thatsuch opportunity for settlement or ad­justment be followed. to the extent thatissues are not so settled or· adjusted, byhearing and decision under sections '1and 8.

Subsection (c) of section 5 concernsthe separation of functions. It providesthat omcers who preside at the taking.of evidence must make the decision orrecommended decision in the case. Theymay not consult with any person or partyexcept openly and upon notice, .save inthe disposition of customary ex. partematters, and they may not be made sub­ject to the supervision of prosecutingomcers. Prosecuting omcers may. notparticipate in the decisions except aswitnesses or counsel in public .proceed­ings. However, the subsection is not toapply in determining applications forinitial licenses or the past reasonable­ness of rates; nor does it apply to the topagency or members thereOf.

Subsection (d) of section 5 providesthat every agency is authorized, in itssound discretion. to issue declara.toryorders with the same effect as otherorders.

Section tl concerns ancillary matters.The provisions of this section relating toincidental· or miscellaneous rights,· pOw­ers, and procedures do not override con­trary provisions in any other part· ofthe bill.

Subsection (a) of section 6 refers toappearance. It provides that any per­son compelled to appear in person be­fore any agency or its representative isentitled to counseL In other cases,every party may appear in person or bycounseL So far as the responsible con­duct of public business permits, any in­terested person may appear before anyagency or its responsible omcers at anytime for the presentation or adjustmentof any matter. Agencies are to proceed'with reasonable dispatch to conclude anymatter so presented, with due regard forthe convenience and necessity of theparties. Nothing in the subsection isto be taken as recognizing or denyingthe propriety of nonlawyers representingparties.

Mr. AUSTIN. Mr. President, beforethe Senator leaves that thought, I wishto ask a question. I notice on page 28of the bill, line 7, in the section to whichthe Senator is referring, this· language:

Nothing herein shall be construed eitherto grant or to deny to any person who Is notta lawyer the right to appear for or representothers before any agency or in any agencyproceeding.

Is it not a fact that somewhere in thebill the distinguished Senator has re­served the right to a nonprofessional­that is, a man who is not a lawyer-to ap­pear, if the agency having jurisdictionpermits it? That is, there is a discretionpermitted, is there not? For example,take a case where a scientific expertwould better represent before the Com­mission the interests involved than woulda lawyer. The right to obtain that privi­lege 1:; granted in the bill somewhere, is itnot?

Mr. McCARRAN. The senator is cor-·rect; and in connel:t!on with that I wtshto read from the Attorney General's com­ment, as follows:

This subsection does not deal wlth,or inany way qualify, the present power of anagency to regulate practice at Its bar. Itexpressly provl4es. moreover, that nothing inthe act shall be construed either to grant.orto deny the right of nonlawyers to appearbefore agencies In a representative capacity.Control over this matter remains in the re­spective agencies.

That is the Attorney General's obser­vation.

Mr. AUSTIN. Mr. President, will thesenator yield to me further? . .

Mr. MCC.<\J,tRAN. Gladly~ .Mr. AUSTIN. I wish to ask the Sena­

tor if the provision of the bill which Ishall now read means to· make permis­sible the appearance for a principa.l ofany person the agency deems appropri­ate. I read:

Any person compelled to appear in personbefore a·ny agency or representatlvil thereofshall· be accorded the right to be accom-'panied, represented, and advised by counselor, If permitted by ·the agency, by otherqualified repreSentative.

Does the Senator construe that lan­guage as authorizing, for example, aprincipal to be represented' by an ac­countant?

Mr. MCCARRAN. The answer is em­phatically "yes:;

Mr. Mc.KELLAR. Mr. President, willthe Senator yield?

Mr. McCARRAN. I yield.Mr. McKELLAR. The next sentence

following the one which the distinguishedSenator from Vermont has just read ap­parentlyprovides for ihat. The lan­guage is:

Every par.ty shall be accorded the right toappear In person or by or with counselorother dUly qualified representative In anyagency proceeding.

That language seems to be broadenough to cover the whole matter.

Mr. AUSTIN. I hope it does, Mr.President.

Mr. McKELLAR. I hope so, too.Mr. AUSTIN. I have doubt about it,

however. The word "representative"having a special legal interpretation, Idid not know but that it was limited tothat. That is why I asked the question.

Mr. McCARRAN. I want to makevery clear that my answer is in the af­firmative both to the Senator from Ver­mont and to the Senator from Tennessee.

Mr. FERGUSON. Mr. President, willthe Senator yield?

Mr. McKELLAR. I yield.Mr. FERGUSON. Did the Senator say

that the language guarantees the rightof a person in all cases to appear by hiscounsel?

Mr. McCARRAN. Positively so.Mr. FERGUSON. How woUld the

Senator define the word "counsel"?Does that mean lawyer?

Mr. MCCARRAN. He may be a law­yer or he may be a nonlawyer.

Mr. FERGUSON. He may be a non­lawyer. Then could the agency deter­mine what particular person may bequalified to appear before it?

Mr. MCCARRAN. Will the Senator re­peat the question?

Mr. FERGUSON. Could the agencyitself .determine .. the .quaUftcations ofrepresentatives of parties?- Mr; McCARRAN. It is left open sothat. the agency may determine thequalification of anyone who may appearin certain classes of cases. As. for in­stance. in an accusatory case, where one .is accused of something, he may be re­qUired to appear by attorneys so as todefend him in his rights.

Mr. FERGUSON. Let us consider theTax Board. CoUld the Board itself· de­termine that certain indiViduals werequal11ied to appear and that ather· per­sons were not qual11ied to appear?

Mr. McCARRAN. The answer to thatquestion. is "No." The BOard could notdo so. The Board would have to acceptlawyers or nonlawyers, as the case mightbe, because a tax expert may not be alawyer.

Mr: FERGUSON. Let us take the pat­ent bar.

Mr. MCCARRAN. The same is true inthat case.. A certified public accountant,for instance, may not be a lawyer, but hecoUld appear.

Mr. AUSTIN. Mr. President. the onlypoint is that he would hav-e to be permit­ted to appear.

Mr. MCCARRAN. That is true. Hewould have to be permitted by the agencyto appear. There is an explanatorystatement in the committee report whichI desire to read. It ·refers to subsection(a) of section 6, and is found on page 19of the report:

The final sentence provides that the SUb­section shall not be taken to recognize ordeny the right of nonlawyers to be admittedto practice before any agency. such as thepractitioners before the Interstate CommerceCommission.

That has become quite an outstandingpractice.

The use of the wOrd "counsel" means law­yers. Whlle the sUbsection does not dealWith the matter expressly, the committeedoes not believe that agencies are justified inlaying burdensome admission requirementsupon members of the bar In good standingbefore· the courts. The right of agencies topass upon the qualifications of nonlawyers.however, Is expressly recognized and pre­served In the SUbsection.

Mr. FERGUSON. Mr. President, willthe Senator yield?

Mr. McCARRAN. Yes.Mr. FERGUSON. The last sentence

read by the able Senator would indicatethat if a member of the bar was in goodstanding before the bar he woUld havethe right to appear. Only with respectto nonmembers of the bar coUld theagency make determination as to wheth­er they have the qualifications to appearbefore it.

Mr. McCARRAN. That is correct.• Mr. McKELLAR. Mr. President, will

the Senator again yield?Mr. McCARRAN. I yield.Mr. McKELLAR. May I ask the Sena­

tor a very general question, which willshow that I have not examined the billwith care? Do I correctly understandthat the principal purpose of the bill isto allow persons who are aggrieved asthe result of acts of governmental agen­cies to appeal to the courts?

Mr. McCARRAN. Yes.

1946 CONGRESSIONAL RECORD-SENATE 2151Mr. McB;ELLAR. That is the general

underlpng PUl'pose of the bill?Mr. McCARRAN. Yes. But let me

add, that where a. sta.tute denies resortto the court the bill would not set asidesuch statute. If a statute denies theright of review, the bill does not inter-fere with the statute. •

Mr. McKELLAR. The bill applies onlyto orders.

Mr. McCARRAN. The bill paves theavenue by which administrative proceo­dure may be conducted in orderly fash­ion, and by which an individual ag­grieved .and believing he has a right toappear before an administrative bodymay find his way clearly defined to getbefore that body.

Mr. McKELLAR. If not otherwiseprohibited by existing law.

Mr. McCARRAN. Yes.Mr. BARKLEY. Mr. President, will

the Senator yield? 'Mr. McCARRAN. I yield.Mr. BARKLEY. The bill assumes

then that when Congress has heretoforepassed legislation providing that thereShall be no access to a court, Congressbad a particular reason for enactmentof such legislation, and the bill's provi­:lions would also apply to future legis­lation of similar kind.

Mr. MCCARRAN. Yes. I shall now~ With my statement.

SUbsection (b) of section 6 concernsinvestigations. It provides that investi­gative process is ,not to be issued or en­forced except as authorized by law. Per­sons compelled to submit· data orevidence are. entitled to retain. or, onpayment of costs, to procure. copies ofsuch data or evidence, except that inIU)npublic proceedings a witness may forgood cause be l1mited to inspecti()n ofthe omciaJ transcript.

Subsection (c) of section 6 concernssubpenas. It provides that where agen­cies are by law authorized to Issue sub­penas, parties may secure them· uponrequest and upon a state~ent or show­ing of general relevance and reasonable.scope if the agency rules so require.Where a party contests' a subpena, thecourt is to inquire into the situation,and, so far as the sub~ is found inaccordance with law, the court is to issuean order requiring the production of theevidence under penalty of contempt forfailure then to do so.

Subsection (d) of Section G requiresthat prompt notice shall be given of de­nials of requests in any agency proceed­ing, and that such notice shall be accoin­panied by a simple statement of groundsfor such denial

Beetion '1 concerns hearings. and ap­plies only where hearingS are requ1re4by section 4 or 5.

Subsection (a) Of section '1 providesthat the hearing must be held either bythe agency, a member or members of theboard which comprises it, one or moreexaminers, or other otIleers .specially pro­vided for in other statutes or designatedby other statutes. All presiding and de­ciding omcers are to operate impartially.They may at any time withdraw if theydeem themselves disqualified; and., uPonthe filing of a proPer aflldavit of penonalbias or disqua.li1lcation agalnst them. 'theagency is required to determlne the mat-

ter as a part of the record and decisionin the case.

Subsection (b) of section '1 concernshearing powers. It prOVides that presid­ing officers, subject to tbe rules of pro­cedure adopted by the agency and withinits powers, have authority as follows:First, to administer oaths; second, to is­sue such subpenas as are authorized bylaw; third, to receive evidence and ruleupon offers of Proof; fourth, to take dep­ositions or cause depOSitions to be taken;fifth, to regulate. the hearing; sixth, tohold conferences for the settlement orsimplification of the issue; seventh, todispose of procedural requests; eighth, tomake decisions or recommended deci­sions under section 8 of the bill; and,ninth, to exercise other authority as pro­vided by agency rule consistent with theremainder of the bill.

Subsection (c) of section '1 relates toevidence. It provides that except asstatutes otherwise provide, the proponentof a rule or order bas the burden ofproof. While any evidence may be re­ceived, as a matter of policy agencies arerequired to provide for the exclusionof irrelevant and unduly repetitious evi­dence, and no sanction may be imposed.or rule or order issued, except as sup­ported by relevant, relia.ble, and proba­tive evidence. Any party may presenthis case or defense by oral or documen­tary evidence. may submit rebuttal evi­dence, and may conduct reasonablecross-examination. However, in the caseof rule making or determining applica­tions for initial licenses, the agency mayadopt procedures for the submJs&ion ofevidence in written form so far as theintel'est of any party will not be preju-diced thereby. .

Mr. AUSTIN. Mr. President, at thatpoint I wish the senator from NeVadawould yield for a question.

W. McCARRAN. I gladly yield to thesenator from Vernlont.. Mr, AUSTIN. Did the cominittee in­

tentionally eh()Ose the language "exceptas supported by relevant, rel1$ble, andprobative evidence" in order to avoid therule 01 scintilla of proof? 'IbJ.s phrase isvery significant, as I see it. On review,for example, the case, in order to carrythrough as decided by the agency, wouldhave to be supported by relevant, reliable,and probative evidence. That; is, in myop1Dion. a very iniportant forward stepin judicial procedure, to saY nothingabout administrative procedure. Por mypart I am glad to see it in the bill.

Mr. JlrfcCARRAN. Let me say to thesenator from Vermont that in the prep­aration' of this billrnany obstacleS wereencountered. Some of us iDsisted. thatthe testimony must be releVant, mate­rial, and competent, and that nothingelse should be taken, However, repre­sentatives of agencies came before us andpresented their views, saying that sucha rule would curtail their operations, andthat they ought to be given greater lati- .tude. They said to us, "We are not law­yers," We are acting In a quasi-judicialcapacity'. We ought to be able to go out­side and get hearsay test1moJ1:Y. 1f youpleaSe•. We might be able to Indulge intheory." So rathel' than curtail theagencies, we sought an intermediategroundwb1ch we thought wo11lct be pro-

tective of the rights of individuals. andat the same time would not handicap theagencies. So we said to them, '·You maygo outside and get what would be sec­ondary eVidence, or hearsay; you mayperhaps even go into the realm of con­Jecture; but when you write your de­cision it must be based upon probativeevidence and nothing else. If in the for­mation of your decision you considerother than probative eVidence, your de­cision will be subject to being set asideby a court of review."

.In other words, we did not wish to de­stroy the administrative agencies orprescribe the. methods under which theyhave been operating. Some of us knowthat in committees of the Senate we veryfrequently hear evidence which we knowis hearsay. I dOUbt very much if anyhearing is ever conducted in which, tosome extent, hearsay is not admitted.But we believed, and we now believe. thatreasonable men can sift the grain fraptthe chaff. Then we laid down the rulethat the administrative agencies mustnot make a finding which impinges uponan individual unless there is behind suchfinding probative evidence to sustain it.That is what we have worked out in thisbill. I have given the explanation atsome length in answer to the Senatorfrom Vermont:

Mr. FERGUSON. Mr. President, willthe Senator yield?

Mr. MCCARnAN'. I yield.Mr. FERGUSON. Would the senator,

then, say that the judgment or decisionof the agency must be based uponstronger proof than a scintilla of evi-dence? ,

Mr. McCARRAN.· Very much stronger.Mr..FERGUSON. The old rule which

applied in the courts, particularly on cer­tiorarI, was that if there waS any evi­dence to sustain the verdict or judgment.it &hould be sustained: The courts havemany tilnes so held. The Senator wouldsay, would he not, th9.tsomething morethan "any evidence" is required to sus-tain such a decision. '

Mr. McCARRAN. The answer is in theafDrmative. We say that the evidencemust be substantial probative evidence.

Mr. FERGUSON. So we are chang­ing the rule which has been applied inthe past that any evidence, or a scintillaof evidence, as ·it is sometimes defined,is sufficient to sustain a verdict or judg­ment.

llr. McCARRAN. We tried as best wecould to establ1sh a guide for adminis­trative groups so th~t they would applythe rule in such a way that there wouldbe substantial probative evidence behindthetr 1bldlngs, and so that they couldsaY, "We are not afraid to have our find­ings reviewed by a court!' .

Mr. GEORGE. Mr. President, will thesenator 7leld?

Mr. McCARRAN, I yield.Kr. GEORGE, The courts have many

tImes held Ulat if there is any evidenceto sustain theftnding of an administra­tIVe board under the statute, the courtshave no power to intervene. If this billshould become a Jaw would that rule. asheretofore construed by the courts, re­n:Wn tn eftect?

Mr. McCARRAN. The courts havegiven various constructions. :The courts,

2158 CONGRESSIONAL RECORD-SENATE MARCH 12in reviewing an order, are governed bythe provisions of section 10 (e), whichstates the substantial-evidence rule. Inother words, in some instances the courtshave held that there must be substantiale','idence. We are saying that theremust be probative evidence of a substan­tial nature, and that even though thecommission or bureau may take hearsayevidence in its hearings, it must havesome probative evidence to sustain itsfinding.

Mr. GEORGE. The point I wish toraise is that some of the acts of Con­gress, particularly those enacted in re­cent years, have led the courts to hold­and they so hold-thatlf there be anyevidence to sustain the finding of aboard or agency, the court has no powerto interfere with it.

Mr. McCARRAN. I would put it· inthis way-

Mr. GEORGE. Would the enactmentof this bill require some SUbstantial orprobative evidence to support such afinding?

Mr. McCARRAN. Yes.Mr. GEORGE. Take the labor rela­

tions cases. Senators are familiar withthem. The circuit courts have fre­quently complained against what the La­bor Relations Board did, but have said,"We are powerless to interfere with it."Would this bill change that rUle, if thecourt were of the opinion that there wasno probative evidence?

Mr. McCARRAN. Yes; it wouldchange that rule.

Mr. GEORGE. I am pleased to hearit.

Mr. McCARRAN. I thank the Sen­ator.

Subsection (d) of section 7 providesthat the record of evidence taken andpapers filed is exclusive for decision, and,upon payment of costs, is available tothe parties. Where decision rests on of­ficial notice of a material fact not ap­pearing in the evidence of record, anyparty may on timely request show thecontrary.

Section 8 relates to decisions, and ap­plies to cases in which a hearing is re­quired to be conducted pursuant to sec­tion 7,

Subsection (a) of section 8 relates toaction by subordinates. It provides thatwhel'e the agency has not presided at thereception of the evidence, the presid1ngofficer, or any other officer qualified topreside, in cases exempted from subsec­tion (c) of section 5. must make the ini­tial decision unless the agency, by gen­eral rule or in a particular case, under­takes to make the initial decision. If thepresiding officer makes the initial deCi­sion, it becomes the decision of theagency in the absence of an appeal tothe agency or review by the agency on itsown motion. On such appeal or review,the agency has all the powers it wouldhave had in making the initial decision.If the agency makes the initial decisionwithout haVing presided at the taIqng ofthe evidence, whatever officer toOk theevidence must first make a recommendeddecision, except that, in rule making ordetermining applications for initial li­censes, the agency may instead isSue atentative decision or any of its respon­sible officers may recommend a decision,

or such intermediate procedure-maybewholly omitted in any case in which theagency findS on the record that theexecution of its functions imperativelyand unavoidably so requires.

Subsection (b) of section 8 Concernssubmittals and decisions. It providesthat prior to each recommended or otherdecision or review, the parties must begiven an opportunity to submit for thefull consideration of deciding officers,first, proposed findings and conclusions,or exceptions to recommended decisionsor other decisions being appealed or re­viewed; and, second, supporting reasonsfor such findings, conclusions, or excep­tions. All recommended or other deci­sions become a part Qf the record andmust include findings and conclusions,as well as the basis therefor, upon all thematerial issues of fact, law, or discretionpresented by the record, besides includ­ing the appropriate agency action ordenial.

Section 9 concerns sanctions andpowers, and relates to the exercise of anypower or authority by an agency.

Unlike sections 7 and 8, section 9 ap­plies in all relevant cases, regardless ofwhether the agency is required by statuteto proceed upon hearing or in any specialmanner. Section 9 also applies to anypower or authority that an agency mayassume to exercise.

Subsection (a) of section 9 requiresthat no sanction may be imposed, or sub­stantive rule or order issued, exceptwithin the jurisdiction delegated to theagency, and as authorized by law.

Subsection (b) of section 9 refers tolicenses. Under this SUbsection, agen­cies are reqUired, with due regard forthe rights or privileges of an interestedparties or persons adversely affected, toproceed with reasonable dispatch to con­clude and decide proceedings on appli­cations for licenses. Under this subsec­tion, agencies are not to Withdraw alicense without first giVing the licenseenotice in writing and an opportunity todemonstrate or achieve compliance withall lawful requirements, except in casesof wilfulness or those in which publichealth, interest, or safety requires other­wise. In businesses of a continUing na­ture, no license is to expire until timelyapplications for new licenses or renewalsare determined by the agency.

Section 10 is the section which relatesto judicial review. This section does notapply in any situation so far as there areinvolved matters with respect to whichexisting statutes preclude judicial review,or with respect to which agency action isby law committed to agency discretion.

Subsection (a) of section 10 providesthat any person suffering legal wrongbecause of any agency action, or ad­versely affected within the meaning ofany statute, is entitled to judicial review.

Subsection (b). of section 10 concernsthe form and venue of action. It pro­vides that the technical form of proceed­ing for judicial review is any special pro­ceeding proVided by statute, or, in theabsence or inadequacy thereof, any rele­vant form of legal action, such as thosefor declaratory judgments or injunctions,in any court of competent jurisdiction.Furthermore, under this subsection,agency action is also made subject to

jud1cial review in any civil or criminalproceeding for enforcement, except tothe extent that prior, adequate, and ex­clusive opportunity for such review isprovided by law.

Subsection (c) of section 10 concernsreviewable acts of agencies. This SUb­section prevides that agency action madereviewable specially by statute, or finalagency action for which there is no otheradequate judicial remedy. is subject tojudicial review. In addition, prelimi­nary or procedural matters not directlysubject to review are made reviewableupon the review of final actions, Exceptas statutes may expressly require other­wise, agency action is final regardless ofwhether there has been presented or de­termined any application for a declara­tory order, for any form of reconsidera­tion, or unless the agency otherwise· re­quires by rUle, for an appeal to superioragency authority.

Subsection (d) of section 10 concernsinterim relief. It provides that pendingjudicial reView, any agency may postponethe effective date of its action. Uponconditions, and as may be necessary toprevent irreparable injury. any review­ing court may postpone the effective dateof any agency action, or preserve thestatus quo pendi~ conclusion of reviewproceedings.

Subsection (e) of section 10 concernsthe scope of review. Under this subsec­tion, revieWing courts are required to de­cide all relevant questions of law, in­terpret constitutional and statutory pro­Visions, and determine· the meaning orapplicability of any agency action. Suchcourts are required to compel actionshown to be unlawfully withheld or un­reasonably delayed. They are requiredto hold unlawful any action, findings, orconclusions found to be either arbitraryor contrary to the Constitution or con­trary to statutes or short of statutoryright or without observance of procedurerequired by law or unsuPPorted by SUb­stantial evidence upon the administra­tive record, where the agency is author­ized by statute to hold hearings subjectto sections 7 and 8, or unwarranted bythe facts insofar as the latter are sub­ject to trial de novo. In making thesedeterminations the court is to considerthe whole record or such parts as theparties may cite, and due account mustbe taken of the rule of prejudicial error.

Section 11 relates to examiners. Itprovides that, subject to the ciVil-serViceand other laws not inconsistent with thisbilI, agencies are required to appointsuch examiners as may be necessary forproceedings under sections 7 and 8.Such examiners are to be assigned tocases in rotation. insofar as practicableand are to perform no inconsistentduties. Under this section, examinersate removable only for good cause de­termined by the Civil Service Commis­sion, after opportunity for hearing, andupon the record thereof. Examiners areto receive compensation prescribed bythe Civil Service Commission inde­pendently of agency recommendations orratings. One agency may, with the con­sent of another and upon selection bythe Civil Service Commission, borrow ex­aminers from another' agency. TheCivil Service Commission is given the

1946 CONGRESS]ONAL RECORD~SENATE 2159necessary powers to operate under tbis~

section.Section 12 rellttes to the construction

and etIee:t of the bill. It provides thAtnothing in the bill is to cUminish con*stitutional lights or limit or repeal adcli~

ti{lnal requiremel'J.ts of law. It providesthfl,t requirements of evidence and pro­cedure are t~o apply equally t-o agenciesand private persons, except as otherwiseprovided by law. The unconstitutional-

. ity ot any l,ID.rtiQn or application of th\;bill is not to affect other portions 01' ap­plications. Agencies are granted all au­thority 1'lecessary to comply with the bill.SubsequeIlt legislation is not to modifythe bill except as it may d6 so expressly.The bill would become law 3 monthsafter its approllal, ex.cept tbat. sections7 and 8 woulc;l take effect ~ months afterapproval, the requirements of section 11would become: etledive a year ane:r ap­proval, and no requirement is mandatoryas to any agency proceedfng initiatedprior to the effective date of such re­quirement.

That completes the syn,opsis of the bill.Mr. President, as ]; have ~ted out

IoofQre. this lliU is clesigl'led to operateas a who1e, and. its provisions arecl~interrekJ.ted. At tbe same timec, it SOOIi'1elbe pointed out that there a1'e' certainprovisions which touch UJlOll subjeetslong regarded as of the highestimpor­tance. On some of these sUbj'eets, suchas the se!laIatiQn ot e:uminers from Uteag~n<:ies they serve, the1'e has been awide divei1gim£.e of vi~ws. Tbe commit,.tee has, in such Clli5.eB', taken tba eQ~which it oolie:ves will sumce, .withoutbeing excessive. AmeadatOl'Y or supp.mentary legi;SlatiQn can supp~ any' deft,.cieney whicb exl?erience dis~c.l'oses insuch cas.es.. The committee helieves thatSPecial note sb.ould be m.ade of thesesituations:

Tbe exemption. of. rule making. and, de­termining applications IN ooenses, ~mprovisions of: sections 5 (c), '7 (c), and8 (a) may require cbange if, hi practice,It develops that tbe3l are too broad. Tbecommittee believes it has rono,wed sounddiscretion in selection of the languageused. and it is tlul feeliOfl <U the com­mittee that. where cases~ sba$contested issues of fact, agencies shouldnot as a matter of gooa practice takeadvantage of the exempti'OJ:l;S.

The committee has considered thepossibility that the preservation in sec­tio07 (a) of tlul "conduct. of speciMdclasses Qf ll1!oceedilil;gs in wbole: or pQftbs or before boards or' otiber omc.ers 5Jl,e­ciany provided for by or designated pW­suant to statute" might prove to be aloophole for avoidance of the examinersystem. If experience should prove thlstrue In any real sense, corrective legis­lation would be' or might b~ necessary,Therefore, the comrnit_ desires thatGovernment agencies sb0Uld be put emnotice that the provision in I!lue!ftion isnot intended to permit agencies to avo~d

the use of ex~aminers.. but on1¥ to pre­serve special statutory t~pes of hearingofficers who' <:OIltribute sotaething morethan examilalefs ceulil contribute it.-ad. atthe same time to assure the parties 'lillirand impartial proeedure.

The basic provision respecting evi~

dence, in section 7 (c) -tbe provision re-

quiri'ng that any agency action must besUI?Purted by pl'ainly "relevant, reHable,and prOQativeevidence"-wili reqUirefull compliance by agencies, and diligentenforcement by reviewing oourts, and sofertb. ShooW the language. P¥O~& in­sUfiteient t1> fix and maint.ain the st.and~

ards of proof, supplemental legislationwill become' necessal'3l. That is a110thermatter which. at the outset of leg-islationsuch as tbis must depend UPOl'l tbe spiritin which the agencies attempt to complyfully with the law. The committee. an­ticipates nothing less than fun cOtn,.'QU­ance and adequate enforcemeut; and,with such com,pliance and enforcement,the cemrmittee believes tl1lat the la.ngUIMJein question will be aGieq,uate. .

Another extremely important matteris the substantial evidence rule containedin section 10 (e).

As a matt,er of language, "substan,tialevidence" would seem to be an adequateexpression of law. The di.fliI:ulty, if &03.arises from the practice of ag.encie!i torely uPOn..-and, in some cases, the tend­ency of courts to tacitly approve-some­thing less than adequate eviQence; torely upon suspieian, sl:lrmise, imp!i:ea­tions, or plainly incredible evidence. Itwill be tbe duty of the court:> to deter­mine, in the final analysis" a.nd in theeXE:l;cise of theil' independent jullffment,whether 00 tine, wbQle the evidence, in agivea ins.ta.nce is suftlcieni:lY substa.l!Itialto support. 8 finding, conclusion, or oUterItgmlCY adi()n as It matter of law. In thefi.rst instance, however, it wHl be thefunction. of the agency to determine thesumcienq of the evidence upon whichit acts; and the, proper perfoxlnance ofits public, duties wiU, requlre th~ ag~n(lY

til und.ertake tlilis inQ1J;iry in a. cluef\ll&Wi. dis~sil\maie manner. Slwuld thteseobjectives of the bill. as worded, fait toPl'fldl!ce the desired result, supplemen4lalle!!iislatiotl wHI be requil'ed.

Mr. AUflT1N. Mr., Presidl:'nt, will theSenator yield at tbi.\! point?

Mr. McCMtRAN. I yield,Mr. AUSTIN. In the event tbat there

is no statutory method now in eff·eet fElrremw of a, deeisiun of an ageney, doesthe d!sti1'1gUished author of the biU con­temPlate that .bY the language he haschosen he has given the riiht to the in~Jured party or the complaining, party toa. review by such extrOOrtUwu'y remediesas in.i1nIctio:la, rmmibition, quo warra.nto,and so forth?

Mr. MecARB,AN. My answer is in theaffirmative, That is true.

Mr. AUSTlN. And does he contem­plate- that eVeD where there is no stat\!­tQf.Y authQrit~ for certiIWa.ri" a,pa,rty~t bring ee:rtiorari agatast o.oe oft.bese agencielS?

Mr. MtCi\RRAN. Unless the Basicstatu~ prohibits it.

Mr. AUSTINe. I thank the Senator.Mr.1lItcCARRAN. Mr. Pre!iident, what

follows in my e~atiQn is largely tbeeXllt'e&Sien.. of; t:\le QI1i~' of tM autborQf the biB. I.hav~ lJQDe~ the Yar~

!CIlUS:se¢tioftS of lM bill section,~ seetion.Tke l!»atteJs whkh ! h8:v~ j!ttst tnefl­

tiel'led dtt. not include all the pl'ovisfonsot this bili' which wilt requiTe vigil'antattention in order to assur.e tbeir Ptoperoperation. Almost any prO¥ision of the

aill, U vmmgly interpreted, OJ: mnumized,may fntesent 0ccMi!:m, for snpp~U'l€nJal

legislation. On the other hand. sbouldit appear at any time that in.. l!eq;ij.ire­ments result in s,Olne undue im:pai:r:nwntof a particular administrative function,appropriate amendJneut.s or e~tioflS

may' be in order.This bill enters a new legislative field.

It attempts to provide a form and scopeof protecbwn lo,mg Q'ferduta. In tbe na­ture of things, we must anticif»te thatexperience will indicatecertaill points atwhich the law should be strengthened oramended. But, Mr. J?resi~nt, it wouldbe j0Ny to ool'ltend 'hat the protectionwhich this bill seeks to give should hedeferred until it is JlQSSib.le to COIM hereand say: "'I'!Qis bill is perfed." Because.Mr. President, that daY callJlQ:t come lID,­til we have had the experience of @era­t100 under such a law, and that. experi­ence alone will serve to p.oint out whatmay be the actual defi,ciencies of the bin.~cept in a few respects, t~ is not a

measure conferring administrative pow­ers,. but is Qne laYi~ QPwn definltioo,'i andstating limitations. These de:finitioo.'Jand limitations must, to be sme, be in­terpret,ed and applied Qy a!(~eies af­fected by them, in tMfil1st iastance. Butthe en!Qrcement at the \lil1. it.)' tlle inde­p~ jud.i¢ial ialterpretllJJtl)l al'Hl: llP­plieaii<m of its telilnS is a. function w~b,in the final l;Ul4ily:us, is cleady cQ~ferred

upon the cQUrt!i.'Therefore, it will be- the duty of re­

viewing cQUl'ts tEl' prevent avoi.dance ofthe reqtlirements of the bill b¥ any man­ner- Ocr form of indiJ'ee1!ioo, "'00 to deter­mine the UlElf'lning ol the wewEls andphrases ~. iDS&far a& they Olive notbeen detmed in tbebin itself. FOf elf­ample. in several provisions Qf the bill,the expJie5si6lilt "good cause" is wsed, Theca~ so sJll~i1JieQmustbe. interf,ld'eteti bythee centext of the: JP{ovision in which. itis found, and tbe PUI!'PO&e of tbe entiresectIon and bill. ~ cause found· lllustbe real and demonstra,J::}le. If the agencyis proceeding upon a statutory hearingand reco.rd the cause: will a~r there;otherWise, it must be such that theagency may show the facts and consid­eratwns warranting tbe finding in' anyproeeedi,ng in which tbe tinding is chal­lenged. The same would,be true in tbecase of findingsothel1 than af gQ{)d cause,re<lliired in too bi,n. As I bavesaid, tl1esefindings' mld&!; in tlul first instance be~ hy t~be ~enc~ concerned; but, inthe final; analysis, their prQpriety in law,aF14 on the facts, mu.st be sustainableUpoll in£luiry by a. reviewing court.

Nevertheless, Mr. President, it mustbe Qbv~l;l5 that f&1' most practic-al pur­PfJ,Ses the C(mgress and the people mustlook to tbe agencies themselves for fairadministration of the laws and. for com­pliance with this bill. Judicial review isof utmost importance, but it can be oper­ative in r€latively few cases because ofthe cost and general hazards of litiga­fuln. It is indispe~ble; since its mereexit;tence gener8JJy precludes the: llo1'bi­trary exercise of po,W,ers, or the assump­tion of powers not granted. Yet, in thevast majQrity of caseS', the agency con­cerned usually speaks the first and lastword. For that reason, the agencies must

2160 CONGRESSIONAL RECORD-SENATE MARCH 12make the firEt, prima.ry,' and most far­reaching e1fort to comply with the termsand the. spirit of this bill., The committee does not consider thisbill as an indictment of administrativeagencies or administrative processes.The committee takes no position one wayor the other on those questions. By en­acting this bill, the Congress--expressingthe will of the people-will be layingdown for the guidance of all branches ofthe Government, and all private interestsin the country, a policy respecting theminimum requirements of fair admin-istrative procedure. .

Mr. President, I present this bill tothe Senate of the United states in thefirm belief that the Judiciary Committeeof the Senate has accomplished some­thing of great value to the people of theUnited States.

Mr. AUSTIN. Mr. President, I do notwish to weary the Senator by interrup­tions.

Mr. McCARRAN. Not at all; that isquite all right.

Mr. AUSTIN. But if he will permitone more question--

Mr. McCARRAN. Yes; indeed.Mr. AUSTIN. What has beenprovided

in the bill with respect to the separationof the powers of prosecution and judg­ment? In other words, how does the billdevise a plan by which the same man

,shall not be both prosecutor and judge?Mr. McCARRAN. Section 11 of the

,bill provides very specific machinery forindependent examiners. We have pro­vided by what method they shall be se­lected and that they shall be independ­ent, and we have further provided thatthey shall make the initial findings whenthey sit as examiners. That is themethod which separates the prosecutorfrom the judicial omcer, and so forth.

Mr. President, I now lay the bill be­fore the Senate with the hope that itmay be approved and passed.

Mr. FERGUSON obtained the floor.Mr. JOHNSON of Colorado. Mr.

President--Mr. FERGUSON. Does the Senator

from Colorado wish to have me yieldto him?

Mr. JOHNSON of Colorado. I wishto place in the RECORD at this point astatement in -regard to the bill.

Mr. FERGUSON. I yield.Mr. JOHNSON of Colorado. I ask

unanimous consent to have printed atthis point in the RECORD a discussion ofthe proposed Administrative ProcedureAct. The discussion or address is by Mr.Allen Moore, who is a prominent mem­ber of the Colorado bar.

There being no objection, the addresswas ordered to be printed in the RECORD,as follows:[From the January 1945 Issue of Dicta, official

pUblication of the Denver and Colorado BarAssociations I

THE PROPOSED ADMINISTRATIVE PROCEDURE ACT

(By Allen Moore)The proposed Federal Administrative Pro­

cedure Act, sponsored by the American BarAssociation and drafted by Its special com­mittee on administrative law, has been saidto provide the most fertile ground for states­manship In the field of the administration ofjustice since the Judiciary Act of 1789. Thisview seems not only to be a bit of over-

emphasis but It is quite In lInew-ith theapproach of the American Bar Associationtoward the growth of administratIve law Inthe past 11) or 12 years, during which repeatedell'Orts have been made to obtain legislation,such as the Walter-Logan bill, Which, If en­acted, might easily have thwarted a necessaryand inevitable development of the adminis­trative process.

The blll under consideration here is en­titled "A bill to Improve the administrationof justice by prescribing fair administrativeprocedure." and waa recently Introduced Inthe Senate by Senator MCCARRAN, of Nevada,and III the House by Congressman SUMNEJlS,

of Texas.The bill marks the 'culmination of more

than 5 years of continuous study arid draft­Ing by the special committee on administra­tive law and by the association itself follow­Ing the veto by the President of the Walter­Logan blll, the association's, first effort tosecure such legislation.

The ,bill is also said to mark the commence­ment of a new responsibility upon associationmembers and lawyers generally to promotethe enactment of the measure.

This paper Is an attempt to evaluate themerits of the proposed aet for the membersof the COlorado Bar Asseciatlon at this, itsannual meeting, in ordf:r that they may bemore' fully advised and In a better position tomake an intelllgent determination when theassociation considers a resolution to approvethe bill and urge its enactment, and thereby,as individual members, responding to Presi­dent H~nderson'sappeal to "constitute your­self a committee of one to do what you canto aid in securing favorable consideration ofthe association's immediate objectlv~the

improvement of the administration of Justicethrough the adoption of a statutory frame­work of fair administrative procedure."It is indeed a grave responsiblllty Which

confronts the bar associations and the law­yers of this country. We should make cer­tain that the proposed act would actually im­prove th~ administration of justice and thatit truly prescribes falr administrative proce­dure. We should be certain that the publicinterest and welfare will properly be pro­tected; that the act will not impede the nor­mal development of administrative law, andthat it is not an elfort to emasculate thegrowth of new instrumentallties designed tomeet the will of the people In a rapidly ex­panding society in periods of s~ress andstrain.

These points are raised because frequentlYIn recent years advocates of this type oflegislation have used,somewhat carelessly,cUches such as "administrative absolutism,""bureaucracy," "dictatorship," "the Issue hereis constitutional government versus bureau­cratic dictatorship," "the new despotism,"this "wonderland of bureaucracy," this "pat­tern for tyranny."

Now, what Is this thing which has sofrightened members of the Congress, barassociations, lawyers, the press: and seme of

, the general publlc? What Is this thing whichbrings about such violent attacks? Are thevery foundations of our Government beingundermined? Are such fears well-founded?I think not. "Administrative law," "the ad­ministrative process," "administrative tri­bunals" do not appear so sinister if one un­derstands something of the origins, develop­ments, and characteristics of the adminis­trative process and its proper evaluation inour scheme of government.

It therefore seems appropriate before giv­Ing a synopsis of the proposed Ad~lnlstra­

tive Procedure Act to give something of thebackground of administrative law in thiscountry, as well as to trace the steps leadingto the Introduction of the McCarran-Sum­ners bill.

James M. Landis in the Storrs LectUresgiven at Yale University in 1936, later pUb-

lished in beok form as The AdministrativeProcess, says in the introduction:

"The last century has witnessed the riseof a new Instrument of government, the ad­ministrative tribunal. In' its mature formit is difficult to find its parallel In our earlierpolitical history; its development seems in­digenous. The rapidity of its growth, thesignificance of its powers, and the Implica­tions of its being are such as to require noticeof the extent to which this new 'administra­tive law' Is weaving Itself more and more intoour governmental fabric.

"In terms of poUtical theory, the admin­istrative process springs from the Inadequacyof a simple tri-parttte form of governmentto deal with modern problems. It representsa striving to adapt governmental techniquethat still divides under three rubrics to mod­ern needs and, at the same time, to pres'Crvethose elements of responsibility and thoseconditions of balance that have distinguishedAnA'lo-American government."

Landis here refers to the doctrine of sep­aration of poWers. an old polltical maXim,'baced upon the divls10n of gOvernmentalpowers in the federal and state constitutionsinto the legislative, executive, and Judicial.This tripartite ideal of government, and thechecks and balances to be found in curconstitutions have resulted in fineness oflogic-chopping by our courts, to uphold thes'Cparetion .of powers,' and for a tendency on'their part to establish new categories ofquasi-legIslative and quasi-jUdiCial powerswhen they find an executive agency infring­ing on the powers of either of the otherbranches of government.

Dean Landis'then states:"the insistence upon the compartnientali_

za,tion of power along triadic lines gave wayin the nineteenth century to the eXigenciesof governance. Without too much politicaltheory but with a keen sense of the practl­calltles of the situation, agencies were cre­ated whose functions embraced the three as­pects of government. RUle making, enforce­ment, and the disposition of competing

'claims made by contending parties were allentrusted to them. As the years passed, theprocess grew. These agencies, tribunals, andrule-making boards were for the sake of con­venience distinguished from the existing gov­ernmental bureaucracies by terming them'administrative.' The law the courts per­mitted them to make was named 'administra­tive law,' so that now the process In all itscomponent parts can be appropriately termedthe 'administrative process.'''

The term "administrative law" thus cameinto general use and the administrative proc­ess has resulted in a voluminous llteratureand the inclusion of courses in administra­tive law in most of the law schools.

Since the administrative process deals With,the relationships of governmental agenciesto persons it has necessarily been associatedwith the term "bureaucracy." From bureauc­racy to autocracy to dictatorship Is a simpletransition In some people's thinking. TheUterature of the subject abounds With ful­minations. It treats the administrative proc­ess as if it were an antonym of that supposed­ly immemorial and sacred right of everyEnglishman, and every American, the legalpalladium of the rUle of law. The process isdenounced by worthy lawyers, legislators, barassociations, and politicians as heralding thedeath knell of ancient liberties and priVileges.The Independent administrative agencies ofth.e Federal Government have been said toconstitute "a headless fourth branch" of theGovernment, a haphazard deposit cf irrespon­sible agencies and uncoordinated powerswhose institution did "Violence to the basictheory of the American Constitution thatthere shOUld be three maJop branches of theGovernment, and only three."

Such glorification of the doctrine of theseparation of powers obscures rather thanclarifies thought. In spite of this chorus ofabuse and tirade, the growtli of the adminis-

1946 CONGRESSIONAL RECORD-SENATE 2161trative process shows or will show little signsof being halted.

The admi\1istrative process In the FederalGovernment is not new. On the contrary Itis as old as the Government itself, and itsgrowth has been virtually as steady as that ofthe statutes at large. The growth has beenpragmatic. Congress has passed laws and hasresorted to the administrative device in theframing of the laws and In the practical ef~

fort to meet particular needs.T"ne 9 executive departments and the 18

or more independent agencies are examplesof administrative agencies, but so mso arethe many subdivisions of departmentstermed "bureaus," Hoffices," uadministra...tions," "services" Rnd the like, which havea sUbstantial measure of independence Inthe department's internal organization andin the conduct of their adjudicative or rule­making actiVities. At the time of the At­torney General's committee report, therewere 51 administrative agencies of the typewhich were deemed to be parts of the ad­ministrative process. The war has added tothat number about 25, more, making a totalof about 75 strictly administrative agencies.There are, of course, other agencies which donot have rule-making or adjUdicatorypowers.

Since the administrative process has de­veloped in this fashion and Without a defi­nite plan. it invites comprehensive studywith a view to coordination and improvementand not blind repeal or emasculating andunthinking legislation. It should be under­stood that the administrative process hasdeep roots In American history and It shouldbe recognized that It embodies the practicaljudgments of successive Congresses andPresidents, and of the people. It Is no so­cialistic, foreign Ideology, plotted by the so­called palace guard for the purpose of SUb­stituting a government of men for a govern­ment by law. It should be and can be Im­proved and developed Into an ever-Increasinginstrumentality for efficient government Inan Increasingly complex society where gov­erment is certain to be charged with moreand more functions, which Ina simple, eco­nomic society of earlier days were eithernonexistent or could easily enough be left tothe ordinary legislative, executive. or jUdicialprocesses.

The American Bar Association has formany years been preparing itself for leader­ship In undertaking to effectuate more ade­quate legislative and jUdiCial guidance orcontrol of the development of administrativelaw. Through Its special committee on ad­ministrative law, first established in 1933and continued annually to this time, It hadmade many studies and reports to the asso­ciation.

In recent years the first SUbstantial rec­ommendation of the special committee onadministrative law was the establishmentof a Federal administrative court. That ef­fort proved abOrtive. It was succeeded bythe legislative proposal known generally asthe Walter-Logan bill, which was sponsoredby Congress and vetoed by the President.Shortly thereafter the Attorney General'sCommittee on Administrative Proceduremade its final report, Including, legislativerecommendations by both a majority anda minority of that committee.

The American Bar Association did notadopt either of those measures as its choice,nor did it continue Its backing of the Wal­ter-Logan bill; instead. It adopted a declara­tion of principles which it felt should be in­cluded In any adequate Federal legislationand declared that of the el(istlng proposalst"at of the minority of the Attorney Gen­eral's committee more nearly met the prin­ciples so declared.

Thereafter a subcommittee of the SenateJudiCiary Committee held extensiVe hearingson the proposals grOWing out of the AttorneyGeneral's committee hearings, but suspended

XCII--137

consideration In the summer of 1941 becauseof the imminence of war and the then de­clared national emergency. Accordingly, forthe next year and a half tIle special commit­tee on administrative law devoted its ener­gies to the development of the conference onadministrative law and other matter coveredin its annual reports.

The house of c1elegates of the association,on August 26, 1943, adopted recommendationsauthoriZing the special committee on ad­ministrative law (1) to draft a bill respect­Ing the basic problems and reqUisites of fairatiminlstratlve prccedure, and (2) upon theapproval ofsuch a bill (a) to J:ublicize it andtake all necessary steps to secure Its consid­eration and adoption, and (b) to make spe­cial recommendations to congressional com­mittees with reference to legislative actionIn connection with specific administrativeagencies or powers as may arise.

A first draft of such general Federal legis­lation accompanied the 1943 report of thecommittee. A second tentative draft wasprinted in 30 A. B. A. Journal 7, January 1944.A further amendment of this draft was pre­sented to and approved by the house of dele­gates February 28, 1944, and was printed in30 A. B. A. Journal 226, April 1944, and asstated earlier was IntroducOld in the Senateby Senator MCCARRAN as S. 2030 and In theHouse by Mr. SUMNERS as H. R. 5081, Seventy­eighth Congress, second session.

With this perhaps overlong introductionand background material In mind, 1 shallnow proceed to discuss the purposes, scope.and effect of the bill 1! enacted and to givean analysis or synopsis of .Its prinCipal fea­tures with comments Interspersed as to whatI consider to be. Its good and bad points.

The McCarran-Sumners bill is designedprimarily to secure publicity of administra­tive law and procedure. to require that ad­ministrative hearings and decisions shall beconduct'ed In such manner as to precludethe secret reception of eVidence or argument.to restate but not expand the right of andprocedures for judicial review, and to fosterthe foregoing by requiring an intra-agencysegregation of deciding and prosecutingfunctions and personnel. No attempt ismade to reqUire formal administrative hear­ings where the law under which the agencycperates has not so reqUired. No attempt ismade to limit existing administrative au­thority. Agencies are simply confined to thescope of their authority.

The proposed act Is said by its drafters tobe designed to achieve four essential andsimple purposes:

"(I) It reqUires administrative agenciesto publish their organizations and proce­dures. and to make available to public In­spection their orders and releases.

"(2) As to rule making, It requires thatagencies publish notice and at least permitInterested parties to submit views or data forconsideration.

"(3) As to adjUdication. It provides that,in the absence of agreement through infor­mal methods, agencies must accord the par­ties notice, hearing, and decision beforeresponsible officers, with provision for thesegre6ation of deciding and prosecutingfunctions.

"(4) As to judicial review, It providesforms of review actions for the determinationof all questions of law In all matters notexpressly committed to e:o:ecutive discretion."

The short title of the act Is given as the"Administrative Procedure Act."

Section 1 defines the terms "agency,""rule." "rule making," "adjudication," and"order." The bill Is concerned primarilyWith administrative agencies; that is, theCongress, the courts, the governments of theposSSlllons, the territories, and the District ofColumbia are excluded, and to judicial re­view of their regulatory actloIl!l. It appliesto functions rather than enumerated agenciesand deals comprehensively with:

(I) The issuance of "rUles," by which Ismeant the written statement of any regula­tion, standard, policy, interpretation, pro­cedure, requirement, or other writing issuedor utilized by any agency, of general appll­cability and designed to Implement, inter­pret, or state the law or pOlicy administeredby, or the organi,mtion and procedure of anyagency; and "rule making" Is the administra­tive procedure for the formulating of a rule,and

(2) the adjUdication of particular cases,meaning the administrative procedure of anyagency, and

(3) the Issuance of orders by which Ismeant Its disposition or jUdgment, whetheror not affirmative, negative, or declaratox:yin form, In a partiCUlar issuance other thanrule making and without distinction betweenlicensing and other forms of administrativeaction or authority.

These terms include the three typical ad­ministrative functions whiCh bear upon pri­vate rights and parties.

The bill is further limited In scope sincewar agencies and. func.ions are excluded Intoto. except as to the reqUirements In section2 that they pUblish their procedures andmake their orders available for pUblic inspec­tion (sec. 1), which In tUl'n is not mandatoryas to military. naval, or diplomatic func­tions (sec. 2).

No fault Is found with respect. to the defi­nition section, since the terms ..agency...·"rule:' "rule making," and "order" are es­sentially those included ia the Federal Re­pOl'tsAct of 1942, the Federal Register Act,and the Federal Register Regulations, Inwhich the essential language Is "general ap­pllCBcbillty and legal effect." It is predicted,however. that many, If not most, old-lineagencies, such as the Interstate CommerceCommission and the Federal Trade Commis­sion, will be excluded from the scope of theact before final passage, and that Its termswill be limited to the newer agenCies as wasdone In the Walter-Logan bill.

Section 2 of the act is headed "Public in­formation" and reqUires, except as to mili­tary, naval, or diplomatic functions of theUnited States requiring secrecy In the publicinterest, the publication concurrently of allrules concerning the organization of theagency. SUbstantive regulations, statementsof general policy and all procedures; theprecervation and pUblication, or the makingavailable to pUblic inspection of all rUlingson questions of law. and all opinions ren­dered or orders issued In the course of ad­judlcBctions, and the filing of releases with theDivision of the Federal Register. To theseprovisions are added certain substantiveprOhibitions regarding tile issuance of pub­licity refiectlng adversely upon any person,prOduct, commodity, security, private actiV­Ity. or enterprise otherwise than by Issuanceof the full texts of authorized pUblic docu­ments. Impartial summaries of the positionsof all parties to any controversy, or the Issu­ance of legal notice of pUblic proceedingswithin its jurisdiction. These obscure SUb_stantive provisions appear to have no properplace in a procedural act. In many Instancespitiless pUblicity is a usefUl device. Theselast-mentioned provisions would be mostdifficult to administer. There Is, of course,no objection to giVing the public all possibleInformation through publication, Inspection,and filing.

Section 3 Is an important section on rulemakln,.. one of the major functions of ad­ministrative agencies. The first subsection(a) on notice reqUires every agency to pub­lish general notice of proposed rule makingIncluding (1) a statement of the time, place,and nature of any public rule-making pro­cedures, (2) reference to the authority un­der which the rule is proposed, and (3) adescription of the SUbject and Issues in­volved.Thls reqUirement does not apply tocases In which the agency, is authorized by

2162 CONGRESSIONAL RECORD-SENATE MARCH 12law t(} issue rules without II hearing andnotice is impracticable because 01 unaVOid­able lack of time or other emergency. Thesubsection applies only to SUbstantive rule$,and is not mandatory as to interpretive rules,general statements of. poliCy, or rules ofagency organization or administrative proc~­

dure.The second subseetion (b} provides pro­

cedures affording interested parties an ade­quate opportunity to participate in rulemaking through {I} submIssion of writtendata or Views, (2) attendance at conferencesor conSUltations, or (3) presentatIon of factsor-argument at informal hearings. Thlssub­sectIon applies only to the tyP& of rulea for.which notice is reqUired by the tirst subaec­tion. Where a law speciJieally requires thatrules· be issued only upon II formal bearing,separate proeedures are se-t fortb in sections6 and 7. Public participation in the rule­making process does not appear to be. nece~­sary or desirable to the exten1; provided Inthis subsection. It would prove costly, timeC9llSumlng, and would impede the e~iency

and effectiveness 01 the agency.The thitdsubsection (c) provides that

every agency authorized to issue rules shallafford any interested pelSon the l'igbt topetition for the issuance, amendment, or re­cission 01 any rule. Few agf1ne1es have reg­Ular procedures whereby private pariies maypetition With respect to tules. 130tbtbe ma­jority and the minority of the Attorney Gen­eral's cOmm1ttee propl!lSed tb81.t such a pro­visiiQIl be Included in legislatl<m.

Section 4 of the proposed act CJ:lovers theSUbject of "adjudt-cation" llIlQ proTides. thatin every case ot a4m1nis.trati1l8 8ld.!Ud1eaticlllin Which the rights" c;luti-. oJ:Uigatlans,. priv­ileges, benetits, or other 1epJ. relatiOM of anyperson are l'equired to he detennb:l,1ld <lQ1yafter opportunity for an adlniIlrstrtttva bear­ing (except to the extent that if the:l'e. is. di­rectly Involved any matter subject to a SUMe­quenttrilll ot the law and facts de nOllo Inany court notice- shan be given IsUbsec. (a.) I) •

The introductory double el«leption. tc) thesectiO!l removes fooa the operat~ of sec­tioas 4, 6, and 'l all at\Q\inistrative procoouresin wbi.eh the lliW' coae6f1'1:~. dtleS not requirerules or orders to be ma4eupona bearmgand. all mattEll1S- subject to a subaequ,ent t.ialde novo in u,ny court.

Of the two intro~uctOG 8.llceptiil-D8, tootlimiting the- ac;ljUdication prooedure to thoseeases in which statutes require. II hearing isthe more Significant, becaUse thereby are ex­eludec;l the great mass ci administrative rou­tine as well as pensions. qlabns, and a va;rietyof simUar matters in which Congress lllls in­tentionally or traditimla.lly refrained homreqUiring an ar;tministratlve hearing.

The secol)cd eliceptlQII. rules out sucb mat­ters as the tax hmetiQ-n of tlle Bureau ofIn.ternal ll.eV8l1'l.UIl (wbJ.eb are triable 4e llOVOin The Tax Cou1't) t~ a.dministration of thecustom laws (triable de novo in the customscourtli), the wot'k of tbe pat.ent Qtlice (sincejudieial proceeding!! may be ~ght to tryout the right to a pateElt), ano subjectswl1ich might lead to claims determinableSUbsequently in the Court of Claims. Thesecond ~cep-ti(>:nalso exemp.t!l admlnlstrativereparation li»!ders. assessing Qal!llllges, BUell asare issued by the Interstate Colomerce Com­misSlEln and the secretary of ~:icultUEe,

since such orders aIll subject to- tnal de novoin court upon attempted enforcement.

SUbsection (a) of secti"," 4 prOVides thatthe agency shall give due and adequate. no­tice in writing specifying (1) the time, place,lI<nQ nature of tpe p.O£eel'Ungs. (2) the preciselegal authQrity and jurisdiction, a11.d (3) thematters of fact and law in isslle. A41lCluatenotice Is cel'tamly a prseqUislte to a fairhearing. RElom r6ll1alns fOl' considerablll im­provement in th~ notice Pl'lI.ctice. at manyagencies. A prOVision is mclU4ell Which pro­vides that tbe s.t8ltement oJ: issues of fact Inthe w«-Qs of the st~tuteaShall not be com­pliance with the notice reqUIrement.

Subsection (b} 'prf>vides that in every easeafter the noticerequlr&d by subseeti0ll. (a)ill given, the agency shall afford all in­t~ested partIes the right anti benefit; ot tairproeedure tor the settlement 01' adjudica­tion of all relevant issues through (1) op­portunity ffl1' inform&l submission and fullcon.slderatlon of facts, claimS, arguments, of­fers of settlement, or proposals of' adJust­ment,and (2) thereafter. to the enent thatthe partiet'! are unable to determine any con­tl70versy by consent, fon:nal hearing and de­cision in CQnfonnity with sectiouli 6 and 7.Two lengthy provision.!! coneeming cases rest­ing upon physIcal inspection or test, per­mitting reinspection and retest and provid­Ing for summary actIon in certain easel!, 1111il1clu.ded. Seme agencies either negJeet orpreclude infpn:o.a.l procedures, altho1Jg1:\ noweven courts tbrough pretrial proceedings ctfs­pose of much of tl:\eb: busl:nes.ll in that way.There is even more reason to do' so in thea.dministrative process, fOr "informal proce­dures constitute the great bUlk of adminfs­trative adJUdication. and are trUly the life­blOOd of the administrative procSSIi." In­sofar as pOSSible, eaSes. shoUld be disposed ofthrough ~on.!erences,agreements, or stipUla­tions. henqe the Inclus1Pn of such Informalmethods In th~ act, and' their appltcatlonto Inspections and summary proceedj.ngs, willstren.gthen the admtn1!itrative arm and Ge.rvewell tbe intere!!ts of private parties.

SUbsectton (c).provtdes. tor declaratoryrulings upon petition of any proper partyin order to teI'l'llinate a controversy or to re­move Ullcertainty as to the val1dity or ap­plication of any administrative authority,rule. at order wIth the same etrect and /i.ub­ject to the salnfl JUdtciu,l renew as in thecalle of other rules. or orderaof the agencY.The admin.ts.trative process has. been wow toadopt declaralory Ndgment procedures, al­thOugh cQurts, partiCUlarly. Stat.e cQUrt,s, havelong recogn~d the validity of auch proce­dures. The . .Attorney General's committeestrongly recOmmended tbat d.eelaratory tuX­ings be made. a. part of the adlninlstratlveprocess and subject to judicial revi.ew.

Section 5. ~f the bill coocerns certain an­cillary matters in connection with any ad­ministrative rule. making, adjudicatiolJ, in­vestigation, or other proceeding or autnority.s,uch all appearance, the COnduct Of investi­gations, subpenas an4 denials.

SUbsection (a) of the section :recognizesthe right of parties to appear b&fOl'e admin­Istrative agencies, in person, or by coun.sel,and be accorded opportunitiefl, and facIlitiesfor tne negotiation. informliltion, adjust­ment, or formal or informal settlement ofany case, A provision recQinizes, that, in theadministrative ptocess, the right to counselsball be accorded as of l'lght jus.t as recog­nize4 by tke 13ill of Rights in COlmection withjudiCial process, an4 as proposed by ootb ma­jority and minority of the Attorney General'scommittee. A seconc1 provision is designedto do what is possible to remec1y delays inthe adminjstrative process. sinee "expec;litionin the disposition of cases is commonly amajOl' objeetive of the aclministtative proc­ess."Itrelieves the private plU'ties fromconsequences of unwarranted o~ avoidableadmtniatrative 4elay, prOVides that casesshall be promptly set and deterroined, andmakes essential pro.vlslons for caseli in whichlicenses are require.4 by law but admlnls­tratlve agenCies fal1 to. act. In such casesthe licenses are <leemed granted after 60days.

&1b.!1ection (b) relates to the conduct of11lvestigati01ls, stating that they shall becontl.ned. t.O the jurlsdiqtion and purposes ofthe agency to which tl1e authorIty is dele­gatee!.

SUb&eetion (c) relating to subpenas 1s de­signed (1).to assure that priva.te. partieG asweU as. agencies shall have II: tight t?liUChsubpenas,. (2) limit the sl10wlDi req,wre4 ofprivate parties so that they may not be re-

qulreci to disclose their entire case tor thebenetit of agency personnel, and (3) recog­n. that 11 private plU'ty _y contest thevalidi.ty of an admiu.utrame sul!lp.ena issuedllga.mst him prior to i",cur~ penalties forcUsobediel1C8; si.n~e otherwjse partiea may ineifect be deprived of all opportunity to con­test the search or !i6iZure. involved,. Thehaphazard and often unfair methods of issu-

• ance Of administrative suopenas were recog­nized in the final report of the AttorneyGeneral.'s committee.

SUb6eC'l;t()l1 (d) proVides that every agencyshall give JlfOIIDpt notice of lj:~mials accom­panied by the grounds 10J: such denial andtmy furtber adminis.trative proeedures avail­able.

No e-xception Is taken to any or the ImcH­lary l11atters i»eluded in sectjon S.Se~tions 6 llnd 7 of the bill are ot the great­

est importance, 'slnce they P"O"ide the esSffi­tial proeeclures thought te con!!titute a fulland fair hearing and proper decision!! 01' find­ings thereatter.

Section 6 on "Hearings" states that no ad­ministratIve procedure shall satiSfy tbe re­qUirement of a fUll hearing unless (subsec.(a)) the case shall pe heard (l) by theultimate authority of the agency or (Z) byone or more subordinate hearing ollieers des­ignated py the agenc·y from memben 01 theboard or body ""hien comprises the highestll11thorit)" therein. state representatives au­thOFized by laW' to preside at the taking ofevitlenee VI' ell:aminers appointed subject tothe civil sel.'Viee or other laws, a.t !!alarlesran~ing frorn $3,000 to $9.000. NurnerousproV1llions lI1'e inserted respecting the func­tions of SUCh presiding ofBeers.

In subs.ection (b) presIding officers aregiven power to (1) administer oaths and Ilftir­matlons, (2) issue subpenas, (3) rule uponolfers of proof and receive evld:el1ce, (4) takeor cause depositfon~ to be tll.l!.en, (~) regUlatetbe course of hearing:; and the conduct ofthe parties, (6) hold informal conferences.(7) dispose of motiQns, etc., and (8) makeor participate in decisions In CQnformity witbsection 7

Subsection (c) relates to evidence. Theprinciples of relevancy, materiality, probativeforce, an4 I>ubstantiality as recognized injudicial proceedings of an equitable natureshall govern the proof, decision, and admin­istrative o.r 1udicial reView of all questionsof fact, Thus it appears that no attemptis made to reqUire the application of the so­called common law or jury trial rules of evi­dence in administrative hearings. This isproper. It is in line With basic principlesot evidence followed among admnistrativeagencies, This subsection contains otherpertinent prOVisions regarding burden ofproof. the rights of cross-examination andrebuttal, admission of wrItten evidence. olli­cial notice, and a declaration that no sanc­tion, permission, or benefit shall be imposedvr granted, or permission or benefit with­held except upon 'evidence which on thewhole record Is competent, credible, and Sub­stantial.

Subsection (d) enumerates the materialswhich Shall qonstitUte the record and pro­Videa that it shall be available to all parties.

section 7 contains prOVisions relating todecisions for the initial submission of briefs.proposed tindings and conclusions. and oralargument for consideration in preparing aninitial decision, or where SUbordinate oflleerspreside. an intermed:iate report, the detailsof sltch report or decision. provisions for ad­zronjstrative review, the consideration ofcases, the flndings and opinions and theservice thereof upon all the parties.

The. provisions of these two sections on fairhearings and findings or decisions sl:\ouldserve to meet most of the heated criticismsheretofore dIrected against administl'ativeagencies in the conduct of hearings. Mostwell-run agencies have already prOVided forsuch procedures.

1946 CONGRESSIONAL RECORD-SENATE 2163Section'il relates to penalties and benefits.

The first sUb$ection (a) prohibits the impo­sition of extra-legal sanctions. Rules maynot enlarge such authority [subsec. (b)],nor may orders do so [sub$ec. (c) I. Sub­section (d) prohibits the imposition of bur­dens in issuing licenses except as pro­vided by law, or the withdrawal of licensesexcept in cases of Willfulness or stated casesof urgency, Without warning notices givingan opportunity for the correction of conductquestioned by the agency.

Subsection (e) is designed to placE!' limi­tations upon the retroactive operation ofrules or orders whether SUch operation is de­signed as a penalty or for cause. These pro­Visions seem proper and wise.

Section 9 treats ()f Judicial review and con­stitutes the longest. most involved and mostcontroversial features of the proposed act.Chapter VI of the final report of. the Attor­ney General's committee gives an extensiveanalysis of this Important but technical sub­ject from the viewpoint of the majority ofthe committee. It concludes. that. dissatis­faction with the eXisting standards as to thescope of Judicial review derives largely fromdissatisfaction with the fact-finding proce­dures employed by the administrative bodies,that is, whether or not such action inspiresconfidence, and assumes that if the notice,hearings, and finding procedures are adoptedas recommended they will obviate the reasonsfor change in the area and scope of judicialreView.

However, the minority of the committee,Messrs. McFarland. Stason, and Vanderbilt,was of the contrary opinion and thought. thatCongress should provide by geJ;leral legisla­tion for both the availab1lity and scope ofjudicial review. It therefore included in itsproposed bill a qUite elaborate section onjudiCial review. In successive drafts, and inthe proposed act here under discussion, thejudicial review section became increasinglyelaborate and involved until it either meansnothing at all or else its adoption wouid re­sult in seriously crippling the administrativeprocess and impose upon the courts a hope­less burden and thus substitute the judicialfor the administrative process.

With this background. I shall attempt asbriefiy'as possible to describe the contents ofsection 9 on judicial review.

There is a. introductory llmitation bywhich there is excluded any matter subject toa sUbsequent trial de novo or Judicial reviewin any legislative court such as the CustomsCourt, the Court of CUstoms and Patent Ap­peals, The Tax Court, or the Court of Claims.

Subsection (a) provides that any party ad­vel'fcly affected by any administrative action,rUle, or order Within the purview of the actor otherwise presenting any issue of lawshall be entitled to jUdicial review thereofin accordance with this section, and review­ing courts are given plenary power With re­spect thereto. I shall not attempt here tomake crystal clear what "an issue of law"is as distinguished from "an issue. of fact"or a mixed issue of law and fact. I suspectthe coUrts wiU wrestle with that problemfor a long, long time.

Subsection (b) states the types of avail­able review proceedings that are statutoryand nonstatutory and enumerates declaratoryjudgments as one such type. A further pro­vision authorizes an action for reviewagainst the agency by its oftlcial title as wellas the headoftlcer or omcera. or any of them.

Subsection (c) relates to courts and venue.and contains provisions as to the transfer ofreview proceedings, amendment thereof, andgeneral provisions to assure that the rightsof parties will not be defeated by compli­cated court and venue provisions of. law.defects pointed out by the Attorney General'scommittee.

Subsection (d) on reviewable acts st,,"testhat any rule shall be revlewal:!le upon itsjudicial or administrative appUcatlon orthreatened application, and, whether or not

declaratory or negative In form or substance.except those matter); expressly committed bylaw to absolute executive discretion. Onlyfinal actions, rUles, or orders, or those forWhich there is no other adequate jUdicialremedy are reviewable; in other words. arecognition of the principle of the exhaus­tion of administrative remedies.

Bubs('ctlon (e) deals with interim relief.such as stay orders, in elaborate fashion.

Subsection (f). on scope of reView. is theheart of section 9. The drafting committeestates this subsection does not attempt toexpand the scope of jUdicial review, nor re­duce it directly by implication. "Nor Is itpossible to specify all instances in whichjudicial review may operate. Subsection(f), therefore, seeks merely to restate theseveral categories of questions of law subjectto judicial review."

The essential words are directly quoted:"Upon such review; the court shall hold

unlawful such act or set aside such applica­tion, rule, order, or any administrative find­ing or conclusion made, sanction or require­ment imposed, or permission or benefit with­held to the extent that it finds them (1)arbitrary or capricious; (2) contrary to con­stitutional right, power, privilege. or immu­nity; (3) in excess of statutory authority.jurisdiction, or limitations or short of statu­tory right. grant, privilege, or benefit; (4)made or .issued without due observance Ofprocedures required by law; (5) unsuppor~~

by competent. material. and substantialevidence. upon the Whole record. as reViewedby the court, In any case in which the action.rule. or order is reql.\lred by statute to betaken, made or issued alter administrativehearing, lilr (6) unwarranted by the facts tothe extent that the facts in any case areSUbject to trial· de novo by the reviewingcourt."

Every clause, phrase, an4 word of this quo­tation deserves extensive and intensive studyto determine its true significance. What itseffect would be in actual operation no onecan say. As a Whole I am of the opinionthat this subsection goes entirely too faris dangerous, and would result In an impos­sible substitution of the jUdicial for theadministrative process and thus deprive ourjurisprudence of that process or else delayits proper and normal development. Thissubsection constitutes a bold and ambitioUseffort on the part of the critics of adminis­trative law to kill. it or nullify it before ithaS had an opportunity to prove Its trueworth. Similarly. conservative common lawJudges and lawyers have fought the develop­ment of eqUity and most every other Judicialreform.

Subsection (g) provides that jUdgments oforiginal courts of review shall be appealablein accordance With eqUity law and in the·absence thereof. by the Supreme Court uponwrits of certiorarI.

Subsection (b) recognizes that all otherprovisions of law relating to Judicial reviewshall remain in effect unless inconsistentwith section 9, except where Congress hasforbidden it or broadened It.

Section 10 relates. to separations of func­.tl0115 so as to achieve an internal segregationof deciding and prosecuting personnel. Theminority of the Attorney General's commit­tee thought that there should be a complete

.separation of functions, that is that hearingsshould be held and decisions made by an ad­ministrative tribunal separate from theagency engaged in investigations and prose­cutions or by a court. The majority of thecommittee thought this unnecessary and un­desirable. holding that the problem is sim­ply one of isolating those who engage In theadjudicative actiVity. This section followsquite (:losely the view of the majority ratherthan of the minority.

Section 11. the concluding section of theproposed act. includes the usual provisionsrespecting the construction and effect of theact and certain other technical matters;

The proposed administrative act repre­sents one of three conflicting doctrines ofpublic administration now struggling fordomination of the Federal Government.Blachley and Oatman in Federal RegulatoryAction and Control have called these threedoctrines (1) the doctrine of executive man­agement; (2) the doctrine of the judicialformUla; (3) the reVisionist doctrine.

The essential feature of the doctrine ofexecutive management is the assertion thatall administrative activities of the FederalGovernment (except those of a quasi jUdicialnature) shOUld be under the control of theChief Executive.

Those who advocate the doctrine of· thejUdicial formula would require· the adminis­trative process to act Insofar as pOl!5lble,according to the jUdicial formUla of noticeand hearing follOWed by a decision. and wouldsubject to jUdicial review practically every actwhich would even remotely aff~t personaland property rights.

The revisionist doctrine sees in the presentFederal administrative system a fairly satis­factory adaptation of structure and relation­ship to function. At the same time it advo­cates improvement.

There are many objections to the first doc­trine which need not be developed here.

The doctrine of the jUdicial formUla ofpUblic administration. is largely the productof the special committee of the American BarAssociation. the activities of which have beenmentioned herein. The chief criticism ofthe present system offered by it arid the asso­ciation may be expressed in two words, "ad­ministrative absolutism." The proposals ofthe committee at various stages have beenembodied in bilis which have been mentioned.and in the proposed administrative act Justdescribed and commented upon. In my opin­Ion the doctrine of the JudiCial formUla asembOdied in the act is wrong In its funda­mental objectives. Although some of thedoubtful features from a constitutionalstandpoint and some of the most rash de­partures of earlier bllls have been eliminatedin the proposed act, yet its animating pur­pose, the desire to subject every possible dls-.agreement between the individual and theadministrative agency to complete control bythe courts, is opposed to the ineVitable. nec­essary, and useful evolution of administra­tive procedures and administrative and ju­dicial controls that have been a notable fea­

.ture of the Federal Government during morethan a h&Jf century.

The theory is based on the moribund con­cept that law· cannot prevail or justice bedone except through the courts. It fails toaecord to the administrative process the de­gree .of power and finality which the courtsthemselves. applying the laws under the Con­stitution of the United States, have recog-

. nized as belonging to that process. It looksbackward and tries to revive the very systemof judicial regulation of business and indus­try. Which proved so Impossible as to lead tothe establishment of regUlatory agencies. Itdestroys and is not constructive. It offers noreal protection to the citizen but does men­ace effective administration, It rests upondead theory instead of evolving reality .. Thedoctrine of the judicial formula should bediscarded and rejected. It appears that the"tendencies toward administrative absolut­ism," so 1eared by certain advocates of thoproposed act and its predecessors. are larglllynoneXistent.

The revisionist doctrine, on the other hand.sees in the present system of Federal admin­istration a vast complex of organizations per­forming a mUltitUde of function",. employinga Wide variety of methods and procedures, andsubjected to numerous types of control, car­ried on Within 8 COnstitutional framework.based on individual rights. adequately pro­tected. The administrative process has de­veloped step by step to meet everyday needs.Changes Which are necessary Should be madeto Improve It and should not be designed to

2164 CONGRESSIONALRECORD~SENATE MARCH 12destroy it. It was with this idea in mindthat the Attorney General's cOmmittee wasappointed in 19::19 and carried on its painstak­ing research for 2 years or more. Its flnalreport is an imperative for one who would befUlly inforIIied of the issues involved here.

The majority of the committee recom-'mended (1) the establishment of an Office ofAdministrative Procedure under a directorwith an adVisory committee; (2) the publica­tion . of rules and other infol-mation, andcertain safeguards with respect to rule mak­ing; (3) administrative adjudication througha system of independent Intra~agency hear­ing commissioners such as is ~ow in use. inthe CPA; and (4) the power to ISSU~ declara­tory rulings. Speciflc recommendatIOns weremade eoncerning indIvidual agencies, manyof Which recommendations have been adopt­ed. It made no SUggestiODS for judicial re­vlew.It summarily rejected the idea of theminority of .the committee that it was feasibleto draft· a code of standards of fair admin­istrative procedure, althOUgh sucb a code wasincluded in the final report, and, as I ba.veindicated, the proposed act 18 Its presentform. .

PTogress in the administratitve process canbe made (1) by maintainIng ttwl independ­ence of regulatory agencies; (2) by furtbel'developing administrative rule making andadjudicatiOn; (3) by more exact d1trerent~a".

tion of the various forms of administrativeaction; and (4) by simplifying administratIvejudicial procedure, and, where possible, bymaking it more uniform;

These things will :reave the administrativesystem Intact, will add to its strength.andstability, and w1ll bn:>aden and develop It tomeet the expanding needs ofa l1vl.ng demo­cratic society. The adoption of the proposedact- would have qUite the opposite elfect.

Mr FERGUSON. Mr. President, Iwish 'to say a few words regarding thisbill. I am of the opinion that it isworthy of passage by the Senate andshould become the law.

This bill seeks to lay do\\rn rules andregulations for administrative agencies.During the course of the years there J:1asbeen great growth of such agenCies.Any lawyer who has practiced be~ore

them has found on numerous occasIOnsthat the omcer charged With the respon­sibility of rendering a decision has acted'in a way contrary to the ideas and idealsof the bar and of the ancient proceduresby which we, as members of the bar.were able to get, as we believed, equaljustice under law.

While I do not think anyone can saythat this is such a bill as he himselfwould draft, or that in every instanee Itcontains language such as he himselfwould employ, nevertheless I think it isa bill which is worthy of passage. It isa very good start. I know that whenthe bill came before the Judiciary Com­mittee, of which I am a member, I sentcopies of it to members of the bar, as didother members of the committee. Wefound probably a greater degree of satis­faction regarding this bill than has beenevidenced in regard to the great mass oflegislation which is passed by the sen­ate.

Recently I conferred about the bill WithDean stason, of the University of Mich­igan Law School, who has taught admin­istrative law. After a study of this billhe believes it to be a great step forward.I wholeheartedly agree with him. Ithink this bill lays down certain rulesartd regulations whieh will be beneficialto the people of America, and that be­fore the bar of public opinion adminis-

trative decisions will be accepted with agreater degree of satisfaction than haspreVailed in the past, In my opinion,there will be fewer complaints becauseof the activities of governmental agen­cies if they will attempt to live Withinthe rules and regulations laid down byCongress, After all, the Congress is thepolicy-maldng body of the United states.In this measure we are simply layingdown a policy; we are trying to providerules and regulation& Which in ouropinion will be for the. benefit of thepeople of America and will result in agreater assurance of justice at the handsof administrative agencies. I hope thebill will be passed.

Mr. WILEY. Mr. PI'esident, I Wish tojoin in the praise and complimentswhich ha.ve already been bestowed uponthe Senator from Nevada. the distin­guished chairman of the JUdiciary Com..;rillttee, and his stafl. They have done atremendous job in relation to this bill.

There is. no question. about the needwhich the bill is designed to fill andwhich has become apparent. I believe, toevery la.wyer who has transacted busi­ness before agencies and departments ofttie Government. In recent years, be..;cause of governmental bureaucratic con­trols. the need has also become very ap­parent to the laity. As a result, as thechairman Ims stated, a number of com­mittees had investigated the suQiect andsubmitted reports.

Mr. President, I was particularly in­terested in the report on administrativemanagement of the President's commit­tee which was made in 1937. That re­port, in part. is set for·th in the report ofthe Committee on the Judiciary on thepending bill. I desire to read briefiyfrom it. It very aptly brings to mind thetendency in republics to what might becaned barnacle growth such as thatfound on the hulls of ships. Unless weare alert, barnacle growth will endangerus, and the ship of state will becomefouled, so to speak, and our institutionswill become endangered. Here is thelanguage to which I refer:

The' executive branch of the Governmentof the United States has • • • grown upwithout plan or d~gn • • •. To look atit now. no ohe would ever recognize thestructure whiCh the founding fathersereeteda century and a half ago. • • • Commis­sions have been the result ot legislative grop­Ing rather than the pur$uit Of a consistentpolicy. • • • They are in reauty minia­ture independent governments set up to dealwith the railroad. problem. the bankingproblem, or the radio problem. They con­stitutea headIess "fourth branch" of, theGovernment, a haphazard deposit of Irre­sponsible agencies and' uncoordinatedpowers.

I do not believe I have overemphasizedthe situation by my use of the term"barnacle growth":

There is a conflict of principle Involved Intheir make-up and fUnctions. • ., • Theyare vested with duties of admInistration• • • and at the same time they aregiven important judicial work, • • * Theevils resulting from this confusion of prin­cIples are insidious and far reaChing. * • •Pressures and Influences properly enoughdirected toward ofticers responsible for for­mulating and administering policy constitutean unwholesome atmosphere In which toadjmllcate private .rights. But the mixedduties of the commissions render eseape from

these SUbversive influences Impossible. Fur­thermore, the same men are obliged to· serveboth as prosecutors and as Judges. This notonly undermines judicial fairness; it weakenspublic ccnftdenee in that fairness. Commis­sion decisions affecting private rights andconductl1e tinder the suspicton of being ra­tionalizations of the preliminary findingsWhich the Oommission, in the role of prose­cutor, presented to itself.

Mr. President, that statement is fromthe report of the President's Committeein 1937, If there were ever definite lan­guage which set forth an undesirable sit­uation and the necessity for providing aremedY, it is the language which I haveread.

So again, Mr. President, I complimentthe chairman of the committee for whathe has accompl1shed. Even after thisbill becOtnes law, it will not be the finalanswer. Whll-t we are saying to theseagencies is. "Get buSy, formulate yourrules, presqribe the pattern. and make itunllorm so that th066 who desire to prac­tice before you will be fully informed as towhat is necessary in connection with thepractiee:' After we have done that, wewiII take another step next year and say,which we shoUld say, that the practicein all these agencies should be uniforminarder that they may not· adopt theirown rules and prescribe certain plead­ings, or whatever they may be called,which may di1fer from: each other. Whenwe have, in due oourse, a uniform prac­tice laid down and followed by uniformpleadings, we will have. ll-ccomplishedwhat I am sure was envisioned by thosewho drew this bill.

The PRESIDING OFFICER. Thequestion is on agreeing to the commit­tee amendment.

The . committee amendment was tostrike out all after the enacting clauseand in lieu thereof to insert:

That this act may be cited as the "Adminis­trative Procedure Act."

DEFINITIONS

SEC. 2. As used In this act-(a) Agency; "Agency" means each author­

ity (whether or not Within or subject to re­view by another agency) of the Governmentof the United States other than Congress. thecourts. or the governments Of the possessions,Territories, or the District of Columbia.Nothing in this act shall be construed to re­peal delegations of authority as provided bylaw. Except as to the requirements of section3, there shall be excluded from the operationof this act (1) agencies composed of repre"sentatives of the parties or of representativesof organizations of the parties to the disputesdetermined by them, (2) courts martial andmilitary conunlssions, (3) military or navalauthority exercised in the field in time of waror in ()Ccupied territory, or (4) functionswhich by law expire on the termination ofpresent hostlllties. within any fixed periodthereafter, or before JUly 1, 1947. and thefunctions conferred by the follOWing stat­utes: selective Training and serVice Act of1940; OOntract settlement Act of 1944; Sur­plus Property Act of j.944.

(b) Pilrson and party; "Person" includesindividuals, partnerships, corporations, asso­ciations, or pUblic or private orgaIUZations ofany character other than agencies. "party"inclUdes any person or agency named or ad­mitted as a party, or properly seeking andentitled as of right to be admitted as a party,In any'agency pt"oceeding: bUt nothing hereinshall be construed to prevent an Qgency fromadmitting any person or agency as a party forlimited purposes,

1946 CONGRESSIONAL RECORD-SENATE 2165(c) Rule and rule makIng: "Rule" means

the whole or any part of any agency state­ment of general appllcabllity desIgned to Im­plement, interpret, or prescrIbe law or policyor to describe the organization, procedure, orpractIce requIrements of any agency. "Rulemaking" means agency process for the for­mulation, amendment, or repeal of a rUle andIncludes the approval or prescriptIon for Utefuture of rates, wages, corporate or financialstructures or reorganizations thereof, prices,facilities, appllances, services, or allowancestherefor, or of valuations, costs, or a~count­

ing, or practices bearing upon any of theforegoing.

(dl Order and adjudication: "Order"means the whole or any part of the finaldIsposition (whether affirmative, negative, ordeclaratory in form) of any agency In anymatter other than rule making but includinglicensing. "AdjUdication" m.eans agencyprocess for the formulation of an order.

(e) License and lic3nslng: "License" in­clUdes the Whole or part of any agency per­mit, certificate, approval, registration, char­ter, membership, statutory exemption, orother form of permIssion. "Licensing" in­cludes agency process respecting the grant,renewal, denial, revocation, suspension,annulment, Withdrawal, limitation, amend­ment, mOdification, or conditioning of alicense.

(f) Sanction and relief: "Sanction" in­cludes the whole or part of any agency (1)prchlbition, reqUirement, limItation, orother condItion affecting the freedom of anyperson; (2) withholdIng of relief: (3) Im­position of any form of penalty or fine; (4)destruction, taking, seizure, or Withholdingof propel·ty; (5) assessment of damages, reoimbursement, restitution, compensation,costs, charges, or fees; (6) reqUirement, re­vocation. or suspension of a license: or (7)takIng of other compUlsory or restrictiveaction. "Rellef" includes the whole or partof any agency (1) grant of money, assistance,license, authority, exemption, exception,privilege, or remedy; (2) recognition of anyclaim, right, immunity, priVilege, exemption,or exception; or (3) taking of any other ac­tion beneficial to any person.

(g) Agency proceeding and action: "Agen­cy proceeding" means any agency process asdefined in SUbsections (c), (d), and (e) ofthis section. For the purposes of section 10,"agency action" includes the whole or part ofevery agency rUle, order, license, sanction,rellef, or the eqUivalent or denial thereof,or failure to act.

PUBLIC INFORMATION

SEC. 3. Except to the extent that there isinvolved (1) any function of the UnitedStates reqUiring secrecy in the pUblic inter­est or (2) auy matter relating solely to theinternal management of any agency-

(a) Rules: Every agency shall separatelystate and currently pUblish in the FederalRegister (1) descriptions of its central andfield organIzation; (2) the established placesand methods whereby the public may secureinformation or make submIttals or requests;(3) statements of the general course andmethod by which its rule making and ad­jUdicating functions are channeled and de­termined, including the nature and require­ments of all formal or informal proceduresavailable as well as forms and instructions asto the scope and contents of all papers, re­ports, or examinations; a~d (4) substantiverules adopted as authorized by law and state­ments of general policy or interpretationsformUlated and adopted by the agency for thegUidance of the publiC. No person shall Inany manner be reqUired to resort to organiza.­tion or procedure not so pUblished.

(b) Opinions and orders: Every agencyshall pUblish or, In accordance with pUb­lished rule, make available to public Inspec­tion all final opinions or omersln the ~d­

judlcation of CasES except those required forgood cause to be held confidential and notcited as precedents.

(Cj PUblic records: Save as otherWise re­quired by statute. mafters of official recordshall in accordance with pUblished rule bemade avallable to persons properly and di­rectly concerned except Information heldconfidential for good cause found.

RULE MAKING

SEC. 4. Except to the extent that there IsInvolved (1) any military, naval, or foreign1'.ffairs function of the United States or (2)any matter relating to agency managementor personnel or to public property, loans,grants, benefits, or contracts--

(a) Notice: General notice of proposedrule making shall be pUblished in the Fed­eral Register and shall Include (1 \ a state­ment of the time, place. and nature of pUblicrule making proceedings: (2) reference tothe authority under which the rule is pro­posed; and (3) either the terms or substanceof the proposed rule or a description of thesubjects and issues Involved. Except wherenotice or hearing is required by statute, thissubsection shall not apply to interpretativerules, general statements of policy, rules of.gency organization, procedure, or practice,or in any situation in which the agency forgood cause finds (and Incorporates the find­ing and a brief statement of the reasonstherefor in the rules Issued) that notice andpublic procedure thereon are Impracticable,unnecessary, or contrary to the publlc In­terest.

(b) Procedures: After notice reqUired bythis section, the agency shall afford inter­ested persons an opportunity to participateIn the rule making through SUbmission ofwritten data, views, or argument with orwithout opportunity to present .the sameorally in any manner; and, after constdera­tlon of all relevant matter presented, theagency shall incorporate In any rules adopteda concise general statement of their basisand purpose. Where rules are reqUired bylaw to be made upon the record after oppor­tunity for or upon an agency hearing, thereqUirements of sections 7 and B shall applyin place of the prOVisions of this subsection.

(c) Effective dates: The required publica­tion or service of any substantive rule (otherthan one granting or recogniZing exemptionor relieving restriction or interpretative rulesand statements of pollcy) shall be made notless than 30 days prior to the effective datethereof except as otherwise prOVided by theagency upon good cause found and publishedWith the rule.

(d) Petitions: Every agency shall accordany interested person the right to petitionfor the issuance, amendment, or repeal ofa rule,

ADJUDICATION

SEC. 5. In every case of adjudication re­qUired by statute to be determined on therecord after opportunity for an agency hear­Ing, except to the extent that there is in­volved (1) 'any matter subject to a subse­quent trial of the law and the facts de novoIn any court; (2) the selection or tenureof an officer or employee of the United Statesother than examiners appointed pursuantto section 11; (3) proceedings In which de­cisions rest solely on inspections, tests, orelections; (4) the conduct of military, naval,or foreign affairs functions; (5) cases inwhich an agency Is acting as an agent for acourt; and (6) the certification of employeerepresentatives--

(a) Notice: Persons entitied to notice ofan agency hearing shall be timely informedof (1\ the time, place, and nature thereof;(2) the legal authority and jurisdictionunder which the hearing Is to be held; and(3) the matters of fact and law asserted. InInstances in which private persons are themoving parties, other parties to the proceed­ing shall give prompt notice of Issues con­troverted In fact or law and in other in­stances agencies may by rule reqUire respon­sive pleading. In fiXing the tiInes and places:for hearings, due. regard shall be had for the

convl;nience and necessity of the parties ortheir representatives.

(b) Procedure: The agency shall afford allinterested parties opportunity for (1) thesubmission and consideration of facts, argu­men t, offers of settlement, or proposalS ofadjustment where time, the nature of theproceeding, and the public Interest permitand (2), to the extent that the parties areunable so to determine any controversy byconsent, hearing, and decision upon noticeand in conformity with sections 7 and 8.

(c) Separation of functions: The same of­ficers Who preside at the reception of evidencepursuant to section 7 shall make the recom­mended decision or initial decision requiredby section 8 except where such officers be­come unavailable to the agency. Save tothe extent reqUired for the disposition ofex parte matters as authorized by law. nosuch officer shall consult any person or partyon any fact in Issue unless upon notice andopportunity for all parties to participate; norshall such officer be responsible to or subjectto the supervision or direction of any offi­cer, employee, or agent engaged in the per­formance of investigative or prosecutingfunctions for any agency. No officer, em­ployee, or agent engaged In the perform­ance of investigative or prosecuting func­tions for any agency In any case shall, inthat or a factUally related case, participateor advise in the decision, recommended deci­sion, or agency reView pursuant to section 8except as witness or counsel In publlc pro­ceedings. This subaectlon shall not applyIn determining applications for Initial li­censes or the past reasonableness of rates;nor shall It be appllcable In any manner tothe agency or any member or members ofthe body comprising the agency.

(d) Declaratory orders: The agency is au­thorized in Its sound discretion, with likeeffect as In the case of other orders, to Issuea declaratory order to terminate a contro­versy or remove uncerta.lnty.

ANCILLARY MATTERS

SEC. 6. Except as otherwise provided In thisact-

(a) Appearance: Any person compelled toappear in person before any agency or rep­resentative thereof shall be accorded theright to be accompanied, represented, andadvised by counselor, if permitted by theagency, by other qualified representative.Every party shall be accorded the right toappear in person or by or with counselorother duly qualified representative in anyagency proceeding. So far as the responsibleconduct of public business permits, any In­terested person may appear befOre any agencyor Its responsible oftlcers or employees forthe presentation, adjustment, or determina­tion of any Issue, request, or controversy Inany proceeding or In connection with anyagency function, Including stop-order orother summary actions. Every agency shallproceed with reasonable dispatch to concludeany matter presented to it except that dueregard shall be had for the convenience andnecessity of the parties or their representa­tives. Nothing herein shall be construedeither to grant or to deny to any person whoIs not a lawyer the right to appear for orrepresent others before any agency or In anyagency proceeding.

(b) Investigations: No process, require­ment of a report, inspection, or other investi­gative act or demand shall be Issued, made,or enforced in any manner or for any pur­pose except as authorized by law. Everyperson compelled to submit data or evidenceshall be entitled to retain or, on payment oflawfully prescribed costs, procure a copy ortranscript thereof, except that In a nonpubllcInvestigatory proceeding the witness may forgood cause be limited to Inspection of theoIDcial transcript of his testimony.

(c) 6ubpenas: Agency sUbpenas author­ized by law shall be issued to any party uponrequest and. as may be required by rules ofprGcedure. upon a statement or showing of

2166 CONGRESSIONAL RECORD-SENATE MARCH 12general relevance and reasonable scope of theeVidence sought. Upon contest the courtshall sustain any such subpena or similarprocess or demand to the extent that it isfound to be in accordance with law and, inany proceeding for enforcement, shall issuean order requiring the appearance of thewitness or the production of the evidenceor data under penalty of punishment forcontempt in case of contumacious failure todo so.

(d) Denials: Prompt notice shall be givenof the denial in whole or in part of anywritten appllcat1on, petition, or other re­quest of any interested person made in con­nectIon wIth any agency proceedIng. Ex­cept In aftlrming a prIor denIal or Where thedenIal ·is self-explanatory, such notIce shallbe accompanIed by a sImple statement ofgrounds.

HEARINGS

SEC. 7. In hearIngs which section 4 or 5requires to be conducted pursuant to thissection- •

(a) Presiding officers: There shall presIdeat the taking of evIdence (1) the agency(2) one or more members of the body whIchcomprises the agency. or (3) one or moreexaminers appointed as provided in this act;but nothIng in this act shall be deemedto supersede the conduct of specified classesof proceedings In whole or part by or beforeboards or other officers specIally provided forby or designated pursuant to statute. Thefunctions of all presiding officers and of of­ficers partIcIpating In dec1s1ona In conform­Ity with sectIon 8 shall be conducted in animpartIal manner. Any SUCh oftlcer may atany tIme wIthdraw If he deems hImself dis­qualified; and, upon the fIling in good faithof a timely and suftlclent affidavit of per­sonal bIas or disqualificatIon of. any suchoftlcer, the agency shall determine the mat­t~ as a part of the record and decisIon inthe case.

(b) Hearing powers: Officers presidIng athearIngs shall have authorIty. subject to thepUbllshed rules of the agency and withIn itspowers to (1) administer oaths and affirma­tIons, (2) issue sUbpenas authorized by law(3) rule upon offers of proof and receive rele­vant evidence, (4) take or cause depositIonsto be taken whenever the elids of justicewould be served thereby, (5) regulate thecourse of the hearIng, (6) hold conferencesfor the settlement or simpllflcatlon of theissues by consent of the parties, (7) dIsposeof procedural requests or simllar matters,(8) make decisions or recommend decisIonsin conformity With sectIon 8 and (9) takeany other action authorized by agency rUleconsistent with this act.

(c) EvIdence: Except as statutes otherWiseprovIde, the proponent of a rule or ordershall bave the burden of proof. Any evi­dence, oral or documentary. may be receIvedbut every agency sball as a matter of polIcyprOVide for the exclusion of immaterIal andunduly repetItIous evIdence and no sanctionsball be imposed or rule or order be issuedexcept as supported by relevant, reliable. andprobative evidence. Every party shall havethe right to present his case or defense byoral or documentary eVIdence, to submItrebuttal evIdence, and to conduct such cross­examination as may be requIred for a fulland true disclosure of the facts. In rulemaking or determIning claIms for money orbenefits or appllcations for inItial llcensesany agency may, Where the interest of anyparty will not be prejudIced thereby, adoptprocedures for the submission of all or partof the evIdence in wrItten form.

(d) Record: The transcript of testImonyand exhibits, together with all papers andrequests fIled In the proceeding, shall con­stitute the exclusive record for decision inaccordance with section 8 and, upon pay­ment of lawfully prescribed costs, shall bemade avallable to the parties. Where anyagency decision rests on ofllclal notIce of a

material fact not apgearing In the. evIdencein the record, any party shall on tImely re­quest be afforded an opportunity to shoWthe contrary.

DECISIONSSEC. 8. In cases In which a hearing is re­

quIred to be conducted In conformIty withsection 7-

(a) Action by SUbordInates: In cases inwhich the agency has not presIded at thereceptIon of the eVIdence, the officer whopresIded (or. in cases not subject to subsec­tIon (c) of sectIon 5, any other officer orofllcers quallfled to preside at hearings pur­suant to section 7) shall Initiallr decide thecase or the agency shall require (In specificcases or by general rule) the entire record tobe certified to It for Initial decIsion. When­ever such ofllcers make the initial decisionand in the absence of either an appeal to theagency or review upon motIon of the agencywithIn time provided by rule, such decisIonshall without further proceedings then be­come the decisIon of the agency. On appealfrom or review of the initial decisIons of suchoftlcers the agency shall, except as It maylimIt the issues upon notIce or by rule. haveall the powers which it would ha"e In mak­ing the tnltial decIsIon. Whenever theagency makes the InItial decision wIthouthaving presided at the receptIon of the evi­dence, such ofllcersshall first recommend adecision except that in rule making or de­termining applIcatIons for InItial llcenses(1) In lleu thereof the agency may issue atentative decisIon or any of Its responsibleofllcers may recommend a decIsion or (2) anysuch procedure may be omitted in any casein which the agency finds upon the recordthat due and timely execution of Its func­tion imperatIvely and unavoidably sorequIres.

(b) Submittals and decisIons: PrIor toeach recommended, inItial. or tentative de­cision. or decIsIon upon agency revIew of thedecisIon of subordInate officers· the partiesshall be afforded a reasonable opportunItyto submit for the consIderation of the o1Ilcersparticipating In such decisions (1) proposedfindings and conclusions, or (2) exceptionsto the decisions or recommended decisIonsof Bubordinate ofllcers or to tentatIve agencydecisions, and (3) supporting reasons forsuch exceptions or proposed findIngs or con­clusions. All decIsions (inclUding inItial.recommended, or tentative decisions) shallbecome a paart of the record and include astatement of (1) findings and conclusions,as well as the basis therefor, upon all thematerIal Issues of fact, law, or discretionpresented; and (2) the appropriate rule.order. sanctIon, rellef, or denIal thereof.

SANCTIONS AND POWERS

SEC. 9. In the exercIse of any· power or au­thority-

(a) In general: No sanction shall be Im­posed or SUbstantive rule or order be issuedexcept WithIn JurisdIction delegated to theagency and as authorized by law.

(b) Licenses: In any case In which appll­cation is made for a llcense required by lawthe agency. wIth due regard to the rightsor prIvileges of all the Interested partiesor adversely atl'ected persons and with rea­Ijlonable dispatch. shall set and complete anyproceedings required to be conducted pursu­ant to sections 7 and 8 of this act or otherproceedings reqUired by law and shall makeits decIsion. Except in cases of· wlllfulnessor those in which public health, interest, orsafety requires otherwise, no withdrawal,lIuspension, revocation, or annulment of anyllcense shall be lawful unless, prIor to theinstitution of agency proceedIngs therefor,facts or conduct whIch may warrant suchaction shall have been called to the attentIonof the llcensee by the agency in writIng andthe llcensee shall have been accorded op­portunity to demonstrate or achieve com­pllance With all lawful requirements. In any

ease in which the licensee has. in accordancewith agency rules, made timelyand..suftlclentapplication for a renewal or a new lIcense,no license wIth reference to any actIVity ofa continUing nature shall expire until suchapplIcatIon shall have been finally deter­mined by the agency.

JUDICIAL IlEVIEW

BEC. 10. Except so far as (1) statutes pre­clude JudIcIal revIew or (2) agency action Isby law commItted to agency discretion-

(a) Right of revIew: Any person sufferInglegal wrong because of any agency action,or adversely affected or AggrIeved by suchactIon withIn the meaning of any relevantstatute, shall be entItled to JudIcial reviewthereof.

(b) Form and venue of action: The formof proceeding for judicial review shall be anyspecial statutory review proceeding relevantto the subject matter in any court specifiedby statute or In the absence or inadequacythereof, any applicable form of legal actIon(including actIons for declaratory judgmentsor writs of prohIbitory or mandatory injunc­tIon or nalJeas corpus) In any court of com­petent jurIsdiction. Agency action shall besubject to JudIcial review Inclvll or criminalproceedings for JudicIal enforcement exceptto the extent that prior, adequate, and ex­clusive opportunIty for such reView is pro­vided by law.

(c) RevIewable acts: Every agency actionmade reViewable by statute and every finalagency action for whIch there is no otheradequate remedy in any court shall be sub­ject to judicIal revIew. Any preliminary. pro­cedural, or intermediate agency action orrullng hot directly revIewable shall be sub­ject to review upon the review of the finalagency action. Except as otherwise expresslyrequIred by statute, agency action shall befinal whether or not there has been present­ed or determined any applicatIon for adeclaratory order. for any form of reconsid­eratIon, or (unless the agency otherwise re­quIres by rule) for an appeal to superioragency authority.

(d) Interim rellef: PendIng judicIal re­vIew any agency is authorized, where it findsthat Justice so requires, to postpone the ef­fective date of any action taken by It. Uponsuch conditIons as may be reqUired and tothe extent neces.sary to prevent IrreparableInjury. every reviewing court (including everycourt to which a case may be taken on ap­peal from or upon applicatIon for certiorarior other writ to a reviewIng court) Is au­thorized to issue all necessary and appro­prIate process to postpone the etl'ective dateof any agency ·action or to preserve status orrights pending conclusion of the reView pro­ceedings.

(e) SCope of reView: So far as necessaryto decision and where presented the revIew­ing court shall decide all relevant questionsof law, interpret constitutional and statutoryprovisionll, and determine the meaning orapplicability of the terms of any agency ac­tion. It shall (A) compel agency action un­lawfully withheld or unreasonably delayed;and (B) hold unlawful and set aside agencyaction, findings, and conclusions found to be(1) arbItrary. capricious, or otherwise not inaccordance With law; (2) contrary to con­stitutional rIght, power, priVilege. or Immu­nity; (3) In excess of statutory jurisdiction,authorj,ty, or limitations. or short of statu­tory right; (4) wIthout observance of pro­cedure reqUired by law; (5) unsupported bysubstantial evidence in any case sUbject tothe reqUirements of sections 7 and 8 or other­Wise revIewed on the record of an agencyhearing provIded by statute; or. (6) unwar­ran~ed by the facts to the extent that thefacts are SUbject to trial de novo by the re­vieWing court. In making the foregoing de­termInations the court shall reView the Wholerecord or such portions thereof- as may becIted by the parties, and due account shall betaken ot the rule of prejudicial error.

1946 CONGRESSIONAL RECORD-SENATE 2167.EXAMINERS

SEC. 11. SUbject to the civil-service andother laws to. the extent not inconsistentwith this act, there shall be appointed byand for each agency as many qualified andcompetent examiners as may be necessary forproceedings pursuant to sections 7 and 8,who shall be aSsigned to cases in rotation sofar as practicable and shall perform no dutiesinconsistent with their duties and responsi­bilities as examiners. Examiners shall beremovable by the agency in which they areemployed only for good cause established anddetermined by the Civil Service Commtlsslon(hereinafter called the COmmission) afteropportunity for hearing and upon the recordthereof. Examiners shall receive compensa­tion prescribed by the Commission independ­ently of agency recommendations or ratingsand In accordance with the Classification Actof 1923, as amended,except that the provi­sions of paragraphs (2) and (3) a! subeec­tion (b) of section '1 of said act, as amended,and the provisions of section 9 of said act, asamended, shall noi be applicable. Agenciesoccasionally or tempdrarlly. Insut!icientlystaifed m,ay utIlize examiners selected by theCommission from and with the consent ofother agencies. l"orthe purposes of. this sec­tlon, the COmmission is authoriZed to makeinyestlgations, require reports by agencies,Issue reports, !llcludlng an annUal report tothe C~mgress, prom~lgate rules. appoint SUChadvisory committees as may be deemed neces­sary, recommend legiSlation, subpena wlt-·nesses or record~,and pay wl~ess fees asestablished for the United States courts. .

CONSTRUCTION AND I:FFBCT

BEC. 12. Nothing In this act shall be heldto diminish the constitutional rights of anyperson or to limit or repeal additional re­quirements iIIlPosed by statute or otherwiserecognized by law.. Except as otherwise re­quired by law, all reqUirements or privilegesrelating to eVidence or procedure shall apply'equally to agencies arid persons. It any pro­vision of this act or the application thereof isheld invalid, the remainder of this 'act ·orother applications of sU~h proVision shau notbe alfected. Every agency Is granted allauthority necessary to comply With the re­qUirements of this !lct through the Issuanceof rules or otherwise. N'o subsequent legis­lation shall be held to superseae or modifythe provisions· of this act except to the extentthat such legislation shall do so expressly.This act shall take eifect 8 months atter Itsapproval except that sections 7 and. 8 shalltake eifect 6 months after suCh approval, thereqUirement of the selection Of examiners,pursuant to section 11 shall not become e1fec­tlve until 1 year after sUch approval, and ~o

procedural reqUirement shall be mandatoryas to any agency proceeding initiated priorto the etJective date. of suCh reqUirement.

The amendment was agreed to.The PRESIDING OFFlCE;F.. ' The

question is on the engrossment and thethird reading of the bill '

The bill (S. 7) was ordered to be en­grossed for a third reading, read thethird time, and passed.

ESTATE .OF MICHAEL J. McDONOUGH,DECEASED

The PRESIOING OFFICER (Mr. TuN­NELL in the chair) laid iJefore the senatea message from the House of Representa­tives announcing its disagreement to theamendment of the8enate to the bill (H.R.2483) for the relief of the estate ofMichael J. McDonough. deceased, andrequesting a conference with the senateon the dlsagreelIig votes of the twoHouses thereon.

Mr. E1.LENDER. I move that the sen­ate insist upon its amendment, agree to

the request of the House for a confer- mellts in the Regular Navy and Marineence, and that the Chair appoint the Corps, and for other purposes.conferees on the part of the senate. - Mr. WALSH. Mr. President, perhaps

The motion was agreed to; and the a brief statement of the bill would bePresiding Officer appointed Mr. ELLENDER, appropriate.Mr. EASTLAND, and Mr. MORSE conferees The objective of the bill is to increaseon the part of the Senate. • and improve the process of demobiliza-ESTATE OF WILLIAM N. THERRIAULT AND tion by permitting the transfer of Re-

MILLICENT THERRIAUI;oT serve officers in the Navy and MarineCorps to the Regular Navy and Regular

The PRESIDING OFFICER laid before Marine Corps. It is highly desirable thatthe Senate a message from the House of immediate action be taken because of theRepresentatives announcing its disagree- fact that a large number of Reserve offi­ment to the amendment of the Senate to cers have made application to be takenthe bill (H. R. 3808) for the relief of the into the permanent Navy, and their ap­estate of William N. Therriault and MilU- plications are pending. Some of the ap­cent Therriault, and requesting a con- pIications have been pending for weeksference with the Senate on the disagree- and months, and the delay in enactinging votes of the two Houses thereon. legislation of this kind has resulted in at

Mr. ELLENDER. I move that the least 700 of the applicants withdraw­Senate insist upon its amendment, agree ing their applications. By enactment ofto the request of the House for a con- the bill we will make it easier for officersference,and that the Chair appoint the who have been discharged from the Navyconferees on the part of the Senate. to be transferred to the Regular Navy if

The motion was agreed to; and the they wish to do so, and thereby be in thePresiding Officer appointed Mr. ELLENDER, Regular service.Mr. O'DANIEL, and Mr. WILSON conferees Mr. AUSTIN. Mr. President, will theon the part of the Senate, Senator from Massachusetts permit aSETTLEMENT OF COAST GUARD CI,oAIMS question?

Mr. ELLENDER. Mr. President on Mr. WALsH. r will explain the bill aFebruary 21, 1946, the. Senate passed little more in detail after I obtain per­Senate bill 1811. The bill provided for mission to have it consid,ered.the settlement of Coast GUard claims, Mr. AUSTIN.. Reserving' tbe right toand when it was called up I made an ex- object, I shOUld like to ask about theplanation of it on the floor of the Sen- scope of the bill.ate. On March 4, 1946, the House of Mr. WALSH. At this .time?Representatives passed an identical bill Mr. AUSTIN. Yes, at this time.which was subsequently referred to. the Mr. WALSH.. Later I shall be pleasedsenate Committee on Claims, From to discuss the bill in detail.that committee I now report favorably, Mr. President, the Navy. as well as thewithout amendment, House bill 5239 to Army, is in the condition of no after-Waramend Public Law 277, Seventy-ninth authorization from the Congress. ThereCongress, so as to provide the Coast is legislation defining the size of theGuard, at such time as it is transferred NaVY, and prescribing the number of offi­back to the Treasury Department. with a cers and number of enlisted men prior tosystem of laws for the settlement of the war.claims, and for other purposes, and I The House has passed an authoriZa­submit a report (No; 1038) thereon. I tion bill, indicating what the Naval M­ask unanimous consent that the senate fairs Committee of the House, because itproceed to consider the bill. has passed on the matter, believes should

The PRESIDING OFFICER.. Is there be the postwar siZe of our Navy. Thatobjection to the present consideration bill came to the Committee on Navalof the bill? Affairs of the 'Senate. The committee

, Mr. WHITE. ,Mr. President, reserving consulted the Commander in Chief, whothe right to object, is the House bill, also is deeply interested in the matterwhich I assume that the Senator· from from a budget standpoint and who be­Louisiana wishes to have substituted for lieves that this is not the time to fix athe senate bill, identical in words with definite size for the postwar Navy. Hethe Senate bUl? favors, as was done in the case of the

Mr. ELLENDER. It is identical in Army, the enactment of an ad interimwords,and comma for COmma. bill whiCh WOUld provide for the imme-

The PRESIDING OFFICER. Is there . diate needs (if the Navy in taking overobjection to the present consideration of from the Reserves a designated numberthe bill?' - .. of officers. 'The number of officers is

There being no objection, the bill designated in the bill.(H. R. 5239) was considered, ordered to The bill makes the following authori-a thifd reading, read the third time, and zations:passed. (a) An increase in the number of line

. PERMANENT APPOINTMENTS IN THE REG-' officers in the Regular Navy from 12,760ULAR NAVY ANt> MARINE OO~PS . . to 23,760.Mr" WALSH. :Mr. President, I move (b) AIl increase lathe number of of-

that the senate proceed to the considera- flcersin the Marine Corps from 2,552 totionof Senate bUl 1907, Calendar No. 5,552.1027.. (c) An increase in the number of of-

The PRESIDING OFFICER. The bill fleers in the Medical Corps from 2,081will be stated by its title for the informa- to 3,781.tion of the senate. <d) An increase in the number of Of-

The LEGIsLATIVE CLERK.. A bill (S. flcers in the Supply ,Corps from 1,531 to1907) to au.thome· permanent appoint- 3,231.

1946 CONGRESSIONAL RECORD-HOUSE 2231Mr. MARTIN of Massachusetts. Mr.

Speaker, reserving the right to object,and I shall not, I understand there hasbeen a change of program for tomorrow.

Mr. McCORMACK. Yes. We hadoriginally listed for consideration to­morrow the bill H. R. 2501, dealing withrUral rehabilitation. This bill will notcome up.

In place of it we will call up the billH. R. 5455, which is a bill relatiQg toemergency housing for veterans. It willbe remembered that a similar bill waspassed last December appropriating someone hundred and sixty-odd million dol­lars for emergency housing for veteransproviding for the fixing up of barracksand the moving and use of temporarywar housing. This bill is an extensionof that program.

Also on tomorrow we will take up thebill (H. R. 4512) amending the PublicHealth Service Act. The other one, H. R.2165. will not come up. That will beprogramed later on.

On Friday I am very hopeful it will bepossible. and I expect the situation to besuch that it will be, to bring up the ex­tension of the Second War Powers Act.I understand the Committee on the Ju­diciary is having a meeting tomorrow oncertain aspects of it. I feel confidentthat Members on both sides will agree tothe bills being brought up on Friday.

Mr. MARTIN of Massachusetts. Mr.Speaker, I withdraw my objection.

The SPEAKER. Is there objection tothe request of the gentleman fromMassachusetts that the Committee onRules may have until midnight tonightto flle certain reports?

There was no objection.SPECIAL ORDER CHANGED

Mr. McCORMACK. Mr. Speaker, Iask unanimous consent that the specialorder granted the gentlewoman fromCalifornia [Mrs. DoUGLAS] for March 15,be transferred to March 29.

The SPEAKER. Is there objection tothe request of the gentleman fromMassachusetts ?

There was no objection.EXTENSION OF REMARKS

Mr. HOLMES of Massachusetts (at therequest of Mr. MARTIN of Massachusetts)was given permission to extend his ownremarks in the RECORD.

SETTLEMENT OF GENERAL MOTORSSTRIKE

Mr. RABAUT. Mr. Speaker, I askunanimous consent to address the Housefor 1 minute.

The SPEAKER. Is there objection tothe request of the gentleman from Mich­igan?

There was no objection.Mr. RABAUT. Mr. Speaker, I rise to

say that other quarrels are sometimessettled and wish to announce that theGeneral Motors strike was settled thisafternoon. All the details of the settle­ment are not known but they claim thereis great satisfaction all around.

The increase is 18% cents an hour andthere is a I-cent equalization paymentwhich is described as being 1 cent foreach working hour of each person beingput into a fund which fund is to be usedby some sort of agreement to equalize

differences for similar work in differentplants. This further tends towardequality and harmony.

EXTENSION OF REMARKS

Mr. PHILBIN asked and was given per­mission to extend his remarks in theRECORD and include two recent articlesappearing in the Boston Herald.

Mr. BARRY (at the request of Mr.LUDLOW) was given permission to extendhis remarks in the RECORD and includea statement made by Mayor O'Dwyer, ofNew York, before the House Banking andCurrency Committee in reference to OPA.

Mr. DOYLE asked and was given per­mission to extend his remarks in theRECORD and include a short editorial.

Mr. KEOGH asked and was given per­mission to extend his remarks in theRECORD and inclUde a resolution adoptedby the national defense committee of theAmerican Legion.

Mr. LANE asked and was given permis­sion to extend his remarks in the RECORDand inclUde a statement made before theCommittee on Ways and Means by a rep­resentative of the National Catholic Wel­fare Conference.

Mr. CHURCH asked and was givenpermission to extend his remarks in theRECORD and inclUde an article appearingin the Chicago Daily News of March 11,entitled "Stop Inflating."

Mr. DWORSHAK asked and was givenpermission to revise and extend the re­marks he made in the Committee thisafternoon and include lend-lease sta­tistics.

Mr. CLASON asked and was given per­mission to extend his remarks in theRECORD.

Mr. SHAFER asked and was given per­mission to extend his remarks in theRECORD.

Mr. PITTENGER asked and was givenpermission to extend his remarks in theRECORD and include a letter and a news­paper item.

SETTLEMENT OF GENERAL MOTORSSTRIKE

Mr. SAVAGE. Mr. Speaker, I askunanimous consent to address the Housefor 1 minute.

The SPEAKER. Is there objection tothe request of the gentleman from Wash­ington?

There was no objection.Mr. SAVAGE. Mr. Speaker, General

Motors have agreed to settle the striketoday at a cost of 19Y2 cents an hour.That is the exact amount recommended2 months ago by President Truman. Ifthe company would have agreed to therecommendation then instead of today,the public would now be enjoying theuse of a great many more automobiles.The company has maintained that itcould not afford the raise, while theworkers have contended they COUld. With­out raising the price of cars. Evidentlyif they can afford the raise now, theycould have then.

One of the hardest tasks for a largegroup of workers to do is to maintainsufficient solidarity over a long period oftime to conduct a good strike. TheGeneral Motors workers have conductedan exceptionally good strike, and theyare to be congratulated. Public support

for their cause was the best I have everseen. Perhaps because they immedi­ately agreed to the President's proposal.

EXTENSION OF REMARKS

Mr. RUSSELL. Mr. Speaker, I askunanimous consent to extend my re­marks at this point in the RECORD.

The SPEAKER. Is there objection tothe request of the gentleman fromTexas?

There was no objection.Mr. RUSSELL. Mr. Speaker, the fol­

lowing Members of the Texas delegationwere privileged to hear the Admiral ofthe Fleet, Chester Nimitz, discuss Navy'splans, and were unable to attend thequorum call at 1:30 p. m. today: Messrs.WEST, GOSSETT, THOMPSON, POAGE, KIL­DAY, LYLE, LUTHER A. JOHNSON, LYNDON B.JOHNSON, MANSFIELD, RUSSELL, PATMAN,BECKWORTH, and MAHON.

LEAVE OF ABSENCE

Mr. MURRAY of Wisconsin. Mr.Speaker, I ask unanimous consent that Imay have a leave of absence from Fridayof this week until Tuesday following.

The SPEAKER. Is there objection tothe request of the gentleman fromWisconsin?

There was no objection.SENATE BILLS REFERRED

Bills of the Senate of the followingtitles were taken from the Speaker'stable and, under the rule, referred asfollows:

S.7. An act to improve the administrationof justice by prescribing fair administrativeprocedure; to the Committee on the JUdi­ciary.

S.1907. An act to authorize permanent ap­pointments in the RegUlar Navy and MarineCorps, and for other· purp'oses; to the Com­mittee on Naval Affairs.

ADJOURNMENT

Mr. GORE. Mr. Speaker, I move thatthe House do now adjourn.

The motion was agreed to; accordingly(at 5 o'clock and 45 minutes p. m.>, theHouse adjourned until tomorrow, Thurs­day, March 14, 1946, at 12 o'clock noon.

COMMITTEE HEARINGS

COMMITTEE ON WORLD WAR VETERANS'LEGISLATION

There will be a meeting of the Com­mittee on World War Veterans' Legisla­tion, in open session. on ThursdaY, March14, 1946, at 10 o'clock a. m., in the com­mittee room 356, old House Omce BUild­ing, on national service life insurancelegislation.

COMMITTEE ON THE JUDICIARY

On Monday, March 18, 1946, subcom­mittee No. 3 of the Committee on theJudiciary has schedUled a hearing on thebill (H. R. 5234) to authorize the FederalSecurity Administrator to assist theStates in matters relating to social pro­tection, and for other purposes.

The hearing will begin at 10 a. m. andwill be held in room 346, House OfficeBuilding.

COMMITTEE ON FLOOD CONTROL

The Committee on Flood Control willbegin hearings on an omnibus fiood con­trol authorization bill on Monday, April8, 1946, at 10 a. m. The hearings will