United Statesof America

(tongressional RecordPROCEEDIN,.GS AND DEBATES OF THE 79 th CONGRESS1 FIRST SESSION

IndexVOLUME 91-PART 14

JANUARY 3, 1945, TO DECEMBER 21, 1945

Property atANCttOIAC£ COWN.UNftY. g)LI f<il

d//6~

.NOT TO LEAVE LIBRARY

UNITED STATES GOVERNMENT PRINTING OFFICE, WASHINGTON, 1945

HISTORY OF BILLS AND RESOLUTIONS

SENATE BILLS

S. I-To 'create an independent Civil Aero­nautics Authority and an independentAir Safety Board, to promote the devel­opment and safety and to provide forthe regulation of civil aeronautics, andto promote world leadership by theUn'ited States in aviation.

Mr. McCarran; Commitee on Commerce. 76.S.2-To provide for Federal aid for 'the de­. velopment, 'construction, improvement,

and repair of pUblic airports in theUnited states, and for other purposes.

Mr. McCarran; Committee on Commerce,79.-Reported with amendment (S. Rept.224), 3943.-Debated in Senate, 4111­4120.-Qrdered restored to'· calendar,4120.-Debate in Senate, 7280, 8431,8468, 8481, 8519.-Passed Senate, 8533.­Referred to House Committee on 'Inter­state and Foreign Commerce, 8582.­Amended and passed House (in lieu ofH. R. 3615), 9812.----Senate disagreesto House amendments and asks for aconference, 9880.--Conferees appointed,9881.-Qrdered printed with Houseamendments, 10083.-House insists onits amendments and agrees to a con­ference, 10306.--Conferees appointed,10306.

S.3-To provide for the training of air­traffic control-towel' operators.

Mr. McCarran; Commitee on Commerce,76.

S.4-To enact the Aviation Salvage at SeaConvention into statute law in theUnited States.

lI1r. McCarran; Committee on Commerce,76.

S.5-Authorizing the advanced training inaeronautics of technical personnel ofthe Civil Aeronautics Administration.

Mr. McCarran; Committee on Commerce,76.

S. 6.-To provide adequate aeronauticaltraining for the youth of' the Unitedstates.

Mr. McCarran; Committee on Commerce,76.

S. 7-To improve the administration of jus­tice by prescribing fair administrativeprocedure. .

Mr. McCarran; Committee on the Judici­ary, 76.-Reported with amendment (S.Rept. 752), 1078.

S. a-To provide for the use of 10 percent ofthe receipts from national forests forthe making,of range improvements With­in such foreSt•.

Mr. McCarran; Committee on Agricultureand Forestry, 76.

S. 9-Providing for the reorganization of thegovernment of the District of Columbia,and for other purposes.

Mr. McCarran; Committee on the Districtof Columbia, 76.

13.1D--Providing for the issuance of certifi­cates of statutory compliance witl;1 cer­tain national standards to certain cor­porations and trade associations engagedIn or a1Iecting commerce.

Mr. O'Mahoney; Committee on the JUdi­Ciary, 76.

S. ll-To protect the foreign relations and topromote the trade and commerce of theUnited States, to require the disclosureto the United States of information af­fecting such trade and commerce, and tosafeguard the se<;urity o~ the UnitedStates.

Mr. O'Mahoney; Committee on the Judi­ciary, 76.

S. 12-To express the intent of the Congresswith reference to the regulation of thebusiness. of insurance.

Mr. O'Mahoney and Mr. Hatch; Committeeon the Judiciary, 77.

S. 13-To provide for the replanning and re­bUilding of slum, blighted, and otherareas of the District of Columbia and theassembly, by purchase or condemnation,of real property in such areas and thesale or lease thereof for the redevelop­ment of such areas in accordance withsaid plans; and to provide for the organi­zation of, procedure for, and the financ­ing of such planning, acqUisition, andSale or lease; and for other purposes.

Mr. McCarran; Committee on the District'Of Columbia, 77.

S. 14-To create the National Capital Metro­politan Water Administration, and forother pUl'poses.

Mr. McCarran; Committee on the Districtof Columbia, 77.

S. 15-To amend an act entitled "An act toprescribe the method of capital punish­ment in the District of Columbia," ap­proved January 30, 1925 (43 Stat. 798,ch. 115, Pu.blic law 348, 68th Cong., 2dsess.) .

Mr. McCarran; Committee on the Districtof Columbia, 77. .

S. 16-To amend the District of ColumbiaBarber Act.

Mr. McCarran; Committee on the Districtof Columbia, 77.

S. 17-To prohibit the issuance of alcoholic. beverage licenses in certain localities in

the District of Columbia, to prohibit ad­vertising the price of such beverages, andfor other purposes.

Mr. McCarran; Committee on the Districtof Columbia, 77.

S.18-To further amend the Servicemen'sDependents Allowance Act of 1942, asamended, so as to provide for the reliefof certain Widows, children, and otherdependents of servicemen who die as aresult of injUry or disease incurred in oraggravated by military or naval service,and for other purposes.

Mr. McCarran; Committee on Finance,77.-Committee on Finance dischargedand referred to Committee on MilitaryAffairs, 4383.

S.19-To provide. for Senate ratification offoreign-trade agreements.

Mr. McCarran; Committee on Finance, 77.

S.2l).c-To amend the Internal Revenue Code,as amended, and the Federal Alcohol Ad­ministration Act, as amended.

Mr. McCarran; Committee on Finance, 17.

S.21-To amend the Internal Revenue Codeby providing a deferred maintenance de­duction for carriers.

Mr. McCarran; Committee on Finance, 17.

S.22-To authorize the Secretary of the In­terior to isSue patents for certain landsto certain settlers in the Pyramid LakeIndian Reservation, Nev.

Mr. McCarran; Committee on Indian Af­fairs,: 77.

S. 23-Providing for the transfer to the rec­lamation fund and waiving of interestupon Government-owned bonds, notes,and other obligations of drainage, irriga­tion, and reclamation districts.

Mr. McCarran; Committee on Irrigationand 'Reclamation, 77.

S.24--For the relief of the Truckee-Carsonirrigation district. .

Mr. McCarran; Committee on Irrigationand Reclamation, 77.-Reported withamendment (S. Rept. 226), 4095.­Amended and passed Senate, .4801.-Re­ferred to House Committee on Irrigationand Reclamation, 4912.-Reported back(H. Rept, 778), 6535.-Passed House,7199.-Examined and signed, 7341, 7353.­Presented. to the President, 7431.-Ap­proved [Public, No. 143), 7825._

S.25-To amend the act of August 11, 1939(53 Stat. 1418), as amended by the actof October 14, 1940 (54 Stat. 119), relat­ing to water conservation and utlllzationprojects.

Mr. McCarran; Committee on Irrigationand Reclamation, 77.

S. 26-To permit defendants to waive prose­cution by indictment.

Mr. McCarran; Committee on the Judiciary,77.

S. 27-To provide for suspending the enforce­ment of certain obligations against theoperators of gold and silver mines Whoare forced to cease operations because ofthe war.

Mr. McCarran; COnlmittee on the Judiciary,77.-Reported back (S. Rept. 158),2999.­Passed Senate, 3195.-Referred to HouseCommittee on Mines and Mining, 3350.

S.28--To incorporate the American Women'sVoluntary Services.

Mr. McCarran; Committee on the Judiciary,77.

S.29·-To provide for loans to enable vet­erans of World War II to pay debts exist­ing at the date of their discharge fromthe service.

Mr. McCarran; Committee on Military Af­fairs, 77.

S.3O-To provide for the' issuance of awardsfor service in the Civil Air Patrol.

Mr. McCarran; Committee on MiLitary Af­fairs, 77.

S.31-To amend the Taylor Grazing Act forthe purpose of providing for greater par­ticipation by district advisory boards inadministration of the act.

Mr. McCarran; Committee on Public Landsand surveys, 77.

751

·UNITED STATES OF AMERICA

I

<tongressional RecordPROCEEDINGS AND DEBATES OF THE 79 th CONGRESS

FIRST SESSION

VOLUME 91-PART 1

JANUARY 3, 1945, TO FEBRUARY 23, 1945

(PAGES 1 TO 1402)

Property otANCHORAC£ COMMUNITY C»U:I<iI

Ol/&> '/9

NOT TO LEAVE LIBRAR't .UNITED STATES GOV:eRNMENT PRINTING OFFicE, WASHINGTON, 1945

,76 CONGItESSIONAL RECORD-'SENATE JANUARY 6

DEcEMBER 28, 1944.To the Senate:

The abOve-mentioned committee herebysubmits the folloWing report showing the

COMMITTEE ON' PENSIONS

name of a person emploYed by the committeewbo is not a. full-time employee of the Sen­ate or of the committee for the ntonth ofDecember' 1944, in compliance with the terms

of Senate Resolution 319. agreed to August23, 1944:

Name and address of department or organization ,by whomAnnual rate

Name 01 Individual Address of comPen-paid sation-Louis J. Meyerle____.._.___.._••____:._•• 612 Bennington Drive, Silver Spr,lng, Md_________••_._, Veterans Admlnistration___ ••_••__ :.___ ._•• _____..__...____ •___ l5,OGO

JAMES M. TvNNELL, ChaIrman.

UNITED STATES SENATECOMMITTEE ON Pt/BLIC LANDS AND SUB\1ETS

December 31, 1944.

To the Senate: , "Thll above-mentioned committee hereby

submits the following report showing thename 'of per~ns employed by the committeewho are not full-time 'employees 'of tbe l:len­ate or of the committee for, the month ofDecember, in compliance with the terms otSenate Resolution No. 319. agreed to August'23, '1944 (see attached memorandum) •

,CA1lL A. ~TCH,Chairman.

Memorandum from l:lenator McCAIUlAN, chalr­man, ,Suboommittee 'to Investigate theAdministration and Use of certain Pub.lie Lands.

'l'o: Senator 'CAIlL A. ~TCH,chalrman, Sen­'ate 'Committee on Publtc ,Lands and'surveys. '

The following persons are detailed ,fromthe Department of Agriculture, Forest Serv­Ice. to assist with the work ,of the abovesubcommittee:,' , '

, E. S. Haskell, 'senior administrative oftlcer,,Porest Bervice, CAF-12; basic salary, $5,000per year. ',Elizabeth HCQkman, clerk CAF-5; basic

salary• $2.000.per 'year.DEcEMBER 31, 1944,

UNITED, STATESl:lE~,ATl!l,SPECuL COMMITTEE TO STUDY

PROBLEMS 0:V AMERICAN'SMALL BUSINESS,January 2. 1945.

The, VICB P1lBsmEN-r.Un'lted StlltesSenate,Washington, D. C.

DEAR MR: ViCE'P!lESIDENT:Pursuant to Ben­ate Resolution 319 'I am transmitting here­With a list of employees of the Special Com­mittee to StUdy Problexns of American smallBusiness who are not full-time employees ofthe Senate.' InClUded with this list Is thename and address of eacb such employee; thename ail. address, of' the departmant payingthesalaJ'Y of-such employ'ee, and the annualrate-of compensatton-far'eachsuch employee;'

Respectfully yours,.. JAME!! E. Ml1Il1lAY,

Chairman.By DEwEy ANDERSON,

E:z:ecuUve Secretary.

SPECIAL COMMlTI'BE TO STUIIY AND SUIlVEY PROBLEMS OF SMALL BUSINESSE~

JAWVARY 1, 1945. names Of persons employed by the committee of _Senate Resolution 319.: agreed t,o Au~ustTo the Senate:" who are. not full:tlmeemployees 'of the sen'; 2$,1944: ' , , -

Theabov8-mentioned committee hereby ,-,'ate or of the committee for the month 'ofsubmits the following report showing ths December 1944, in compliance with the terms

Name 01 inillvidual Address Name and address or Department or organization by whom,paid

Annual rateof compen­

satlon

Cheney, Bralnard__.. _CrivelIa, Agnes E ._. __Devitt, Emerald G••__n ._. __,. ._.Digges, Elsie A.'n.; ••._.'_. _Evans, Harrg J ._00. .__ ._.__.._Forjles, F. preston_..._••_•• • _Fuller, CarOl M n __.._. •__.._..Gray. Scdtt K., Jr.__.n_n. • _Oroeller, 'Stella-l__'_;_;._•• : ~ •Heckard, Dorothy Moo..__•• ..__ ._Kimhall, Katbleen; n. ~ . __Lncas, Elizabeth P_.__._n._... .

~.::~,I;~~rw:::======================O'Mullane, Vernice M. • _

~8~~iin~:~lJhUa'C======:=:=========Soule, Lt. (Jr. Gr')l George H __ • • __Spicer. Lillian E,.ve yn. .• __Steckman, Frederick W __• n • __ ••Strubel, Margie Ln n. • __Thurman, Allen G. . __Van Tassel. Alfred J • n __Yelencsics,Olga • .. __

3418 Highwood Drive ~E'J_:w~hingtonJ..D. O....m __•• Fore(gn Economic Administration, Washingt.on. D. O_.._m.

1408 Buchanan St.NW.; washington, lJ. C_.n.. War Production Board. Washington, D. C. ._n.n_Cn _

& 027Jf;WE~.oW:~h1ri~~~~.~::====:====:=:::::==:_ :::=~~=::=:=:::::=:~==:=:::==:::=::::::=::=====::===:===::==:==:3010 Gains.ville St. SE., Washirigton, D. O mm___ Reconstruction Finance COJ1lOratiiln, Washington, D. 0 ••.610 Four Mile Rd., Alexandria, Va ._n_._.__"__...._ Department of Commerce, WashlDgt.on, D. 0._•.••_.. , ..2101.S St. NW:.o...Washll1.l{ton, D. O.._n__._m .m Office or Price AdmJnistratlon, Washington, D. O • m__119 Joliet St. Bw., Waslll~gton,D. O •__ ._.._....._Reconstruction Finance Corporation" Washington. D. O__m_.1127 Branch Ave. SE" Washington, D. C._••••_.. War Production Board, Washington, D. 0._. • • __ ....

rfi~~:R£~:~~~~fni~~:-~~~::::::::::::::::::::::!~==::::::::::::::::::::::::::::::::::::::::::::::::::::3120 Massachusetts Ave. SE., Washington, D. C•• •__._do._. ._.._.._... __ ._ _•• • .. _1445 Ogden St. NW., Washington, D. C_.. ._... .do • ._ __

~~~t~~~sl~~lffe.o~f.:{?asiiiiigton:jj~C==:==:==: ·oili~o"ipiic;;AdiiijniSir;itiOii,·wiiSiiiiigioii;ii-c~:===:=====:=719 n St. NEg Washlngton,D. C._... n ._.. •__do. ._.n ._n__ --_------------------------.--4020 Beecher t. NW.• Wasnlngton, D. C • ~---- Navy Department, Washington, D. 0. . __. . __1433 Decatur St. NW., Washington.).D. C_._.__ • ... War Production Board, Washington, D. C__.... • _4000 CathedrnlAvp., Washington,lJ.C_•• ._.._ Maritime Commission, Washington, D. C_.__n • ._..4632 12th St, NE

SWashington. D. Cu ..__ .. War Production Beard, Washington, D. C_n .. ._. _

201 E. Shepberd t" Chpvy£Jhase, Md __..__ .._.• Maritime Commission, Washingtotj, D. C • _1622 Mount Eagle PI., Alexandria. V~. . .._n War Produrtlon Board. Wasblngton, D. C ..2400 13th St. NW •• Washington, D. C••• •__ . •__do • • ... .... ..__..,. • •__

$6.6002, 7002,0001,8006,6004,6002, 1004,6002,6002,0002.0001.8002,6006.6001,6203.2006,6002,0002.6004, 6001,8006.5006,6002,000

JAMES ll::Mtl'llllAY, Ch.airman.

BILLS AND JOINT RESOLUTIONSINTRODUCED

Bills and joint resolutions were intro­duced, read the first time, and, by unani­mous consent. the second time, and' re­ferred as follows:

By Mr. McCARRAN:S. 1., A. bill to create an independent Civil

Aeronautics Authority, and an independentAir Safety Board, to promote the develop­ment and safety and to provide for theregulat!on of civil aeronautics, and to pro.;,mote world leadership by the United Statesin aviation; to the Committee on Commerce.

(Mr. ,MCCARRAN also Introduced Senatebill 2,whlcl1 was referred to the Commit­tee on Commerce, and appears under a sepa-rate headirig.) ,

By Mr. McCARRAN:S.3. A 'D1l1 to proVide for the training of

air-traftlc contrOl-tower operatol'S;

S,4. A bill to enact the Aviation Salvageat Sea Convention into statute law In theUnited States;

S. 5.'A bill authorizing the advanced train­ing in aeronautics of technical personAelof the Civil Aeronautics Administration; and

S. 6. A bill to provide adequate aeronauti­cal training for the youth of the United •States; to the Committee, on, Commerce.

S.7. A b1ll to improve tbe administrationof justice by presCl'lbing fa!!' admlnlstratl.veprocedure; to the Cpmmittee on the Judi­ciary.

S. 8, A b1ll to provide for the use of 10percent of the receipts from national forestsfor the making of range Improvements with­in such forests; to the Committee on Agri­CUlture and Forestry.

S.9. A b1ll prOViding for the reorganization0': the government of the District of Colum­bia, and tor other purposes; to the Commit­~e on the District of Colu~bla.

Mr, O'MAHONEY. Mr. President, Iintroduce several bills dealing with someof the problems mentioned in the Presi­dent's message of tOday regarding freeenterpriSe and free opportunity. Onebill deals with cartels, and another dealswith corporations.

The VICE PRESIDENT. The bills in­troduced by th-e Senator from Wyomingwill be received and appropriately re­ferred.

,By Mr. O'MAHONEY: ,S. 10. A bill pro.vlding for the Issuance of

certificates of statutory compliance with cer­tain national standards to certain corpora­tions and trade assocllj.tions engaged 1n oraffecting commerce; ,and

S. 11. A blll to protect the foreign rela­tions and to promote the trade and com­merce of the United States, to require th~

UNITED STATES OF AMERICA

(iongr(Ssion,aIR((ordPROCEEDINGS AND DEBATES OF THE 79th CONGRESS

FIRST SESSION

VOLUME 91-PART 8

OCTOBER 19, 1945, TO NOVEMBER 28, 1)45

(PAGES 9823 TO 11156)

NOT To" LEAVE UBBARl

UNI'I'ED STATES GOVERNMENT PRINTING 'OFFICE, WASHINGTON, 1945

10788 CONGRESSIONAL RECORD-SENATE NOVEMBER 19. There being no objection, the letter

was received, referred to the Committeeon Foreign Relations, and ordered to beprinted in the RECORD, as follows:

WICHITA COUNCIL OF CHURCHES,Wichita, Kans., November 14, 1945.

Han. CLYDE M. REED,United states Senate, Washington, D. C.

DEAR SENATOR REED: The United NationsCharter has been ratified with, unprecedentedspeed. The peoples of the earth are pinninghigh hopes on this important organization.If the United States and Russia and GreatBritain will collaborate, UNO .will wield animportant force in world alfairs, but, of thesethree, the moral leadership rests primarilywith the United States.

In reality, if the United States takes thewise course, the' other nations of the worldwill follow our leadership and UNO will suc- ­ceed. If we follow the wrong coUrse, it willfall. To make it succeed, the wisest step forthe United States is to precede all decisionsthat have international implications by con­sultation .with the other nations throughUNO.. Such questions as universal military train­

ing, the control of atOmic energy, the govern­ment of vanquished peoples, the' di!!posalofcolonies; the establishment of bases, andsuch. if decided by ourselveS, in Isolation, willprovoke rivalry. But if we will disc\l5sthemwith the United Nations before taking action,there will be a spirit of confidence and ,thefoundation of peace. .", We' urge that you be aiert to use the ollices

of the UNO in every proper Internationalmatter. We urge that you resist the pas­sage of acts that have bearing on interna­tional relations prior to report of our UNOdelegates as to the understandings they havebeen able to secure. If we can hold enact­ment of universal military training and simi­lar matters in abeyance pending anattempted agreement among the nations, itmay be possible to eliminate many costlypolicies.

Let us get away from bloc action as faras pOSSible. Let us try the democratic wayamong the nations-full and free discussion,full publiCity, full cooperation. This is ·themost hopefUl cours'! for the future.

Respectfully,CABINET OF THE WICHITA

CotrNCIL OF CHURCHES.RALPH E. LIGHTNER, President.JOHN W. MELOY, Secretary.

REPORTS OF COMMITI'EESBy Mr. BILBO, from the Committee on the

Dis'rict of Columbia:S. 1152, A bUl to effectuate the purposes of

th& Servicemen's Readjustment Act of 1944 inthe District of Columbia, and for other pur­poses; without amendment (Rept. No. 750).

By Mr. WHEELER, from the Committee onInterstate Commerce:

S.1.289. A bill to amend section 1 of theFederal Power Act, with respect to the tennsof otll.ce of members ·of the Federal PowerCommission; without amendment (Rept. No.751).

By Mr. McCARRAN, from the Committeeon the Judiciar-y:

S.7. A bill to improve the administrationof justice by prescribing fair administrativeprocedure; with an amendment (Rept. No'.752).

By Mr. CORDON, from the Committee onPublic Lands and Surveys;

H. R. 608. A bill to exclUde certain lands InDeschutes County, Oreg., from the provisionsof Revised Statutes 2319 to 2337, Inclusive,relating to the promotion o! the developmentof the mining resources of the United States;With all amendment (Rept. No. 753).

BILLS !NTRODUCJ1D

BUls were introduced, l'ead t:tle tirsttime, and, by unaIiimous co~nt, thesecond time, and referred as follows:

By Mr. BUTLER:S. 1604. A bill for the rellef of Leo StUhr;

to the Committee on Claims.By Mr. WALSH:

S. 1605. A bill to reimburse certain Navyand Marine Corps personnel and fonner Navyand Marine Corps personnel for personalproperty lost or damaged as the result offires which occurred at various Navy and Ma­rine Corps shore activities; to the Committeeon Naval Alfairs.

(Mr. WAGNER (for himself and Mr. Mur­ray) intrOduced Senate. bill 1606, to providefor a national health program, which was re­fllrred to the Comn).ittee on Education andLabor, and appears under a separate head- .ing.)

By Mr. BALL:S. 1607. A bill. to provide for the naturali­

zation of Peter Kim; to the Committee onImmigration.

By Mr.MI'I'CHELL:S. 1608. A bill fOr the relief of WHliam A.

Gallagher; to the Committee on Claims.BY. Mr. McMAHON:

S. 1609. A bill for the relief of CathertnGilbert; to the Committee on Claims.

BY MI'. TYIlINGS: .S. 1610. A bill to prOVide for the rehablllta·

tion of the Philippine' Isiands, and for otherpurposes; to the COIIlII1ittee on Territoriesand Insular Affairs. .

FIRST SUPPLEMENTAL SURPLUS APPRO-PRIATION RESCISSION ACT OF 1946­AMENDMENT

Mr. WALSH submitted an amend­ment intended to be proposed by himto the bill (H. R. 4407) reducing certainappropriations and contract authoriza­tions available for the fiscal year 1946,and for other purposes, which was or­dered to lie on the table and to beprinted, as follows:

On page 28, line 12, insert the fOllOWing:"Provided further, That of· the funds re­maining available for advance balle con­struction, material, and €quipment, not toexceed $6,000,000 shall be available towardreconstruction of the civilian economy ofGuam... ·

UNIVERSAL MIUTARY TRAINING

Mr. 'BUTLER. Mr. President, I askunanimous consent to have printed inthe RECORD, at this point, as a part of myremarks an editorial from the' AnsgarLuthera:n, of November 12, 1945, entitled"Universal Military Training," and a let­ter which I have received from.a memberof the armed forces at Camp Gordon,Ga., dated October 29, 1945.

There being no objection, the editorialand the letter were ordered to beprinted in· the RECORD, as follows:

UNIVERSAL MILITARY TRAININGPresident Truman haa spoken. He asks us

to introduce universal mll1tary training. Wemust do the same aa they have done inEurope In the past. But what has happenedto the nations who had universal training?They are now prostrate in ;the dust. Ger­many, Japan, Italy, France. The nations,Great Britain, Russia, and the United States,that were not prepared for war, won the war.

Is that the way of the world? Does it meanthat he who takes the sword shall perish bythe sword? . Jesus did say something aboutthat, and He ahould be an authority worthlistening to even in Washington. Oswald

Spengler pictured the nations with IItrongm.llit!try regimes as nations that wouldfinaUybe defeated. He did this in -hlli book TheDe~line of the West. He was right.

What is it that makes a nation strong?, Would it be out of the way to quote Psalm

20; 7-8? "Some trust in chariots and some inhorses; but we will make mention of thename of Jehovah our God. They are boweddown and fallen; but we are risen and standupright:' '

Whenever civilization gets to depend uponmechanical,things alone, it is doomed.

Universal military training will change ourwhole national outlook. It will make us de­velop a military spirit. What effect will thathave upon our national life? It will be themilitary men who will decide our policies.Have we not constantly condemned themilitary cUque of Japan, and the militarymen of Prussia? Are we now to begin to de­velop that whiCh we have Just defeated andwhich we are Just placing on trial both inJapan and Germany?

Let ull give peace a chance. The commonman Is sick of war. He was made to sacrificefor war, he will gladly sacrifice for peace, buthe mustb.e shown the way.

What do our leaders think universal train­ing Can do' for US? It certainly cannot pre-.pare our souls for national emergencies. Itnever could. IUstory proves the very opposite.

. And the atoIDie bomb. An atomic bombmay be planted secretly in 50 of our big cities .and let off as a time bomb, SO these cities wlllbe wiped out in 12 hours. History teaches usthat spiritually decadent people always lose.Na spiritUally weak people can win no mat­ter what weapon they get. Germany provedthat. She lost because she had lost her BOul.Only the strong Christian can survive. •

We know that the advocates of the univer­sal training will say, keep your powder dry.But no powder is eVer dry if Christianity fsforgotten.

. Sometimes we have thought all men sentto Congress should first have a heavy coursein history and Christianity before they areswom into ollice. We must get to see thatthe things men live by are not the mechani­cal things, it is t!le things of God.

CAMP GORDON, GA., October 29, 1945.Hon. HUGH BUTLER.

Washington, D. C.DEAlt SIR: At the present time when ques­

tions of -the utmost importance in regard tothe future welfare of the United States arebeing debated and a decision must be madeI feel it is the duty of every citizen to makeknown his. ideas to tbe elected legislators ofthe country.. I am deeply concerned about the peace­

time military training program. My 2 years'service in the Army have convinced me that1 year of military training will not mate­rially increase our national strength mili­tarily. The stupid tasks of picking up ciga­rette butts, match stiCks, etc., do not teachour soldiers the functions of warfare. Touse the Army's own ac.t as a reason; 17 weeks'training was considered sutll.cient to fit aman for combat; why is it they are nowasking 52 weeks' training, three times aamuch?

I think one of the determining factors inour recent Victory was n~merical sU»eriorltyin persox:mel, planes, guns, and all typea ofmateriel.

And here is a very vital point that wes~ould keep in mind; peacetime conscrip­tIOn for military training does deny theindiViduals affected the rights of life, liberty,and pursuit of happiness guaranteed by theConstitution of the United' States. If weallow this one encroachment upon our free­dom are we not opening the door to thosewho would like to further subject us by re­strictions of our personal f~eedom? I be-

United Statesof America

l<fFJ/I'K6'

(tonl1rrssional1RrrordPROCEEDINGS AND DEBATES OF THE 79th CONGRESS, SECOND SESSION

IndexVOLUME 92-PAR T 13

JANUARY 14, 1946, TO AUGUST 2, 1946

-~OT TO LEAVE LIBRARY

UNITED STATES GOVERNMENT PRINTING OFFICE, WASHINGTON, 1946

HISTORY OF BILLS AND RESOLUTIONSSENATE BILLS

S.2-To provide for Federal aid for the de­velopment, construction, improvement,and repair of publ1C airports in theUnited states, and for other purposes.

Conference report (No. 1828) submitted inHouse and agreed to, 2973-2983.-Oonfer­ence report submitted in senate andagreed to, 4221-4234.-Examined andsigned, 4266, 4307.-Presented to thePresident, 4308.-Approved [Public, No.3771, 4967.

S. 7-To improve the administration of jus­tice by prescribing fair administrativeprocedure.

Debated in senate, 2148-2167.-Passed Sen­ate, 2167.-Referred to House Committeeon the Judiciary, 2231.-Reported withamendment (H. Rept. 1980), 4455.­Made speclaf order (H. Res. 615), 5645­5647.-Debated, SlDended, and passedHouse, 5647-5668.-Senate concurs InHouse amendment, 5791.-Examined andsigned, 5881, 5954.-Presented to thePresident, 6073.-Approved [PUblic, No.404], 6706.

S. 27-To prOVide for suspending the enforce­ment of certain obligations against theoperators of gold and silver mines whoare forced to cease operations because ofthe war.

Reported with amendment (H. Rept. 2250),6769.

S.33-Relating to the management and ad­ministration of national forest grazinglands.

Reported With amendments (S. Rept.1176), 3531.-Amended and passed sen­ate, 6893.-Referred to House Committeeon Agriculture, 7035.

S.50-To permit settlement of accounts ofdeceased oMcers and enlisted men of theArmy, Navy, Marine Corps, and CoastGuard, and of deceased commissionedoMcers of the Publ1c Health Service,without administration of estates.

Reported with amendment (11. Rept.1482), 177.-Amended and passed House,title amended, 832.-Referred to SenateColl1mlttee on Military Affairs, 1122.­senate concurs in House amendment,l344.-Examined and signed, 1482,l5l0.-Presented to the President, 1576.­Approved [PUblic, No. 306), 1594.

B. 59-For the relief of Antonio Zamora; Mrs.Antonio Zamora; ~nton1o Zamora, Jr.;Mrs. Juan Chavez; John Chavez, Jr.;Roland Chavez; Selso TrujUlo; and Dr.M. G. Wright.

Reported with amendments (S. Rept.1926), 10594.

S.63-To amend the Communications Act of1934, as amended, so as to prohibit inter­ference with the broadcaating Of non­commercial cUltural or educational pro­grams.

Amended and passed House (in lieu of H.R. 5117), 1566.-Senate disagrees toamendments of the House and asks fora conference, 1710.-Conferees appOinted,1710.-House insists upon its amendmentand asks for a conference, 2173.-Confer­ees appointed, 2175.-Conference report

S.63-Continued(No. 1824), submitted in House andagreed to, 2820.-Conference report SUb­mitted in senate and agreed to, 3240­3258.-Examined and signed, 3260, 3317.­Presented to the President, 3320.-Ap­proved [pUblic, No. 344], 3829.

S. 75-For the relief of Thomas C. Locke.senate disagrees to the amendment of the

House and asks for a conference, 1413.­Conferees appointed, 1413.-House In­sists upon its amendment and agrees toa conference, 2057.-Conferees appointed,2057.-Conference report (No. 1934) SUb­mitted in House and agreed to, 3760.­Senate agJ:ees to conference report,3852.-Examined and signed, 3948,4025.-Presented to the President, 4028.­Vetoed (S. 000.176),4178.

S. 78--For the relief of Frances EubanltsOates.

senate disagrees to House amendmentsand asks for a conference, 8981.-Oon­feree appointed, 8982.-Benate insistsupon its amendment and agrees to aconference, 9446.-Oonferees appointed.9446.-Conference report (NO. 2645) sub­mitted in House and agreed to, 9880.­Conference report submitted in Senateand agreed to, 10168.-Examined andsigned, 10327, 10329.-Presented to thePresident, 10412.-Approved [Private, No.804), 10740.

S.9Q-.For the relief of Della O'Hara.Presented to the President, 61.-Approved

[Private, No. 366),451.S. 101-To prohibit discrimination in em­

ployment because of race, creed, color,national origin, or ancestry.

Mr. Chavez, Mr. Downey, Mr. Wagner, Mr.Murray, Mr. Capper; Mr. Langer, and Mr.Aiken; Committee on Education andLabor, 2232.-Debated, 81, 84, 90, 94, 114.156, 178, 233, 242, 257, 313, 318, 375, 382,386, 455, 498, 560, 668, 681, 624, 696, 714,801, 815, 822, 871, 883, 950, 1037, 1047,1063, 1130. 1145, 1154, 1159, 1193, 1207.

S. 102-To amend section 2 (b) of the act en­titled "An act extending the classifiedexecutive civil service of the UnitedStates," approved November 26, 1940,so as to proVide for counting militaryservice of certain employees of the legis­lative branch in determining the eligi­bility of such employees for civil-servicestatus under such act.

Supplemental report 1349, part 2, 615.­Passed House, ~O.-Examined andsigned, 944, 946.-Presented to the Presi­dent, 1032.-Approved [Public, No. 295],1331.

S. 115-To modify section 4 ot the Perma­nent Appropriation Repeal Act, 1934,with reference to certain funds collectedin connection with the operation ofIndian Service irrigation projects.

Repo~dWith amendments (S. Rept. 1294) ,4309.-Amended and passed Senate;title amended, 6897.-Referred to HouseCommittee on Indian Affairs, 7035.­Reported with Amendment (H. Rept.

S. 115-Continued2489), 8602.--supplemental report (R.Rept. 2489, pt. 2), 9511.-Amended andpassed House, 10017.--senate concurs InHouse amendment, 10159.-Examinedand signed, 10327, 10329.-Presented tothe President, 10412.-Approved [Public,No. 6471, 10740.

S. 141-To clarify the law relating to thefilling of the first vacancy occurring inthe office of district judge for the east­ern district of Pennsylvania.

Reported back (5. Rept. 1303), 4533.­Passed Senate, 6899.-Referred to HouseCommittee on the Judiciary, 7035.-Re­ported with amendments (H. Rept. 2461),8433.-Amended and passed House; titleamended, 9103.--senate concurs inHouse amendment, 9242.-Examined andSigned, 9335, 9395, 9406.-Presented tothe President, 9512.-Approved [PubliC.No. 528), 9937.

S.147-To prOVide for the establishment otthe Russell-Majors-Waddell NationalMonument..

Reported with amendments (S. Rept.1746), 9406.-Amended and passed Sen­ate; title amended, 10348.-Referred toHouse Committee on Public Lands,10495.

S.162-For the relief of Walter S. Faulkner.Reported back (S. Rept. 1533), 7167.­

Passed Senate, 9178.-Referred to HouseCommittee on Claims, 9395.-Reportedback (H Rept. 2588), 9606.-PassedHouse, l0033.-Examined and signed,10167, 10230.-Presented to the President,10229.-Approved [Private, No. 805],10704.

S. 178--For the relief of the city of Memphis,Tenn., and Memphis Park Commission.

Passed House, 1930.-Examined and signed,2090, 2136.-Presented to the Presi­dent, 2233.-Approved [Public, No. 325),2303.

S. 178--To amend sections 9 and 40 of theUnited States Employees' compensation'Act, as amended.

Reported with amendments (5. Rept.1317). 4602.-Amended and passed Sen­ate; title amended, 6900.-Referred toHouse Committee on the Judiciary, 7035.

S.181-To authorize the appropriation offunds to assist the States and Territories·in more adequately financing their sys­tems of pUblic education duringemer­gency, and in rectucing the inequaJltie.sof educational opportunities throughpublic elementary and secondary schools.

Reported with amendment "(5. Rept. 1497),6772.-Debated in Senate, 10619.

S. 19Q-.To provide for, foster, and aid in co­ordinating research relating to dentaldiseases and conditions; to establish theNational Institute of Dental Research;and for other purposes.

Reported with amendment(S. Rept. 1363),5245.-Amended and passed Senate,6906.-Referred to House Committee onInterstate and Foreign Commerce, 7035.

SS9

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

UNITED STATES OF AMERICA

(iongrrssional RecordPROCEEDINGS AND DEBATES OF THE 79 th CONGRESS

SECOND SESSION

VOLUME 92-PART 4

APRIL 26, 1946, TO MAY 22, 1946

(PA<7ES 4127 TO 5450)

PropettyotANCHORAGE COMMUN'I.r~

02/095-'

NOT TO LEAVE LIBRARY

UNITED STATES GOVERNMENT PRINTING OFFICE, WASHINGTON, 1946

1946 CONGRESSIONAL RECORD-SENATE 4455San Diego Harbor and Mission Bay,

Calif.Columbia RIver, from Vancouver,

Wash., to The Dalles, Oreg.(Monday and Tuesday, May 6 and 7, 1946)

Big Sandy River, Tug and LevisaForks, Va., W. Va., and Ky.

(Wednesday and Thursday, May 8 and9, 1946)

Arkansas River, Ark. and Okla.COMMItTEE ON INVALID PENSIONS

There will be a public hearing beforethe Committee on Invalid Pensions at10:30 a. m. on Tuesday, May 7, 1946, inthe committee hearing room, 247 OldHouse Office Building, on H. R. 3908, en­titled "A bill to provide increased pen­sions to members of the Regular Army,Navy, Marine Corps, and Coast Guardwho become disabled by reason of theirservice therein dUring other than aperiod of war," which was introduced byRepresentative LESINSKI, of Michigan.

EXECUTIVE COMMUNICATIONS, ETC.

1251. Under dause 2 of rule XXIV aletter from the Secretary of War trans­mitting a draft of a proposed bill toamend the act entitled "An act for thecreation of an American Battle Monu­ments Commission to erect suitable me­morials commemorating the services ofthe American soldier in Europe, and forother purposes," approved March 4, 1923,as amended, was taken from the Speak­er's table and referred to the Committeeon Foreign Atlairs.

REPORTS OF COMMITTEES ON PUBLICBILLS AND RESOLUTIONS

Under clause 2 of rule XIn, reports ofcommittees were delivered to the Clerkfor printing and reference to the propercalendar, as follows:

Mr. BULWINKLE: Committee on Printing.senate Concurrent Resolution 60. Concur­rent resolution authorizing the Senate Com­mittee on Interstate Commerce to haveprinted for its use additional copies of hear­ings held before said committee on S. 1253,seventy-ninth Congress, relative to modifica­tion of railroad financial structures; withoutamendment (Rept. No. 1978). Referred tothe House Calendar.

Mr. WALTER: Committee on the JUdiciary.senate 7. An act to Improve the administra­tion of justice by prescribing fair administra­tive procedure; with amendment (Rept. No.1980) . Referred to the Committee of theWhole House on the State of the Union.

REPORTS OF COMMITTEES ON PRIVATEBILLS AND RESOLUTIONS

Under clause 2 of rule XIll, reports ofcommittees were delivered to the Clerkfor printing and reference to the propercalendar, as follows:

Mr. BOYKIN: Committee on Accounts.House Resolution 611. Resolution granting 6months' salary and $250 funeral expenses toJessie E. Jones, wife of B. F. Jones, late anemployee of the House; without amendment(Rept. No. 1979). Referred to the HouseCalendar.

PUBLIC BILLS AND RESOLUTIONS

Under clause 3 of rule XXII, publicbills and resolutions were introduced aridseverally referred, as tallows:

By Mr. BIEMILLER:H. R. 6297. A bill to amend the Social

Security Act, as amended, so as to change theage for old-age and survivor benefits from 65to 60; to the Committee on Ways and Means.

By Mr. JENKINS:H. R. 6298.. A bill to protect and facllltate

the use of national forest lands in T. 2 N., R.18 W. Ohio River Survey, townShip of Eliza­beth, county of Lawrence, State of Ohio, andfor other purposes; to the Committee onAgriCUlture.

By Mr. VOORHIS of California:H. R. 62.9. A bill relating to the exemption

from claims of creditors of United StatessaVings bonds of series E; to the Committeeon Ways and Means.

By Mr. IZAC:H. R. 6300. A bill to authorize the secretary

of the Navy to lend Navy Department equip­ment for use at the Twenty-eighth AnnualNational Convention of the American Legion'to the Committee on Naval Affairs. '

By Mr. MASON: .H. R. 6301. A bill to supplement eXisting

laws against unlawfUl restraints and monop­olies, and for other purposes; to the Com­mittee on the Judiciary.. By Mr. RANDOLPH:

H. R. 6302. A blll to authorize the paymentof compensation for time lost in the caseof certain veteran and nonveteran employ­ees of· the United States restored to activeduty after disproval of Charges against them;to the Committee on the Civil service.

By Mr. FLANNAGAN:H. R. 6303. A bill to amend the provisions

of the AgriCUltural Adjustment Act relatingto marketing agreements and orders; to theCommittee on AgriCUlture.

By Mrs. ROGERS of Massachusetts:H. R. 6304. A bill to authorize the furnish­

ing of motor eqUipment to seriously dis­abled veterans, and for other purposes; tothe Committee on World War Veterans' Leg'­islation.

By Mr. MAY:H. R. 6305. A bill to make permanent the

provisions of the act of July 11, 1941, pro­hibiting prostitution in the vicinity of mili­tary and naval establishments; to the Com­mittee on Milltary Affairs.

By Mr. ROE of New York:H. R. 6306. A bill amending section 1, act

of July 20, 1942 (56 Stat. 662; 10 U. S. C.1423a); to the Committee on Military Affairs.

By Mr. GRANAHAN:H. Res. 610. Resolution favoring a tempo­

rary peace agreement with Italy; to the Com­mittee on Foreign Affairs.

PRIVATE BILLS AND RESOLUTIONS

Under clause 1 of rule XXII. privatebllls and resolutions were introduced andseverally referred as follows:

By Mr. BARRETI' of Pennsylvania:H. R. 6307. A bill for the relief of Francesco

D'Emillo; to the Committee on Claims.By Mr. BEALL:

H. R. 6308. A blll for the relief of John F.Guthridge; to the Committee on Claims.

By Mrs. DOUGLAS of Illinois:H. R. 6309. A bill for the rellef Of Rudolf

Alt; to the Committee on Claims.By Mrs. DOUGLAS of California:

H. R. 6310. A b1l1 for the relief at lIsl TsengTsiang; to the Committee on ImmigrationlUld Naturalization.

By Mr. FARRINGTON:H. R. 6311. A hill for the relief of Mitsuo

Arlta; to the Committee on Claims.H. R. 6312. A bill for the relief 01 Yukiko

Kimura; to the Committee on Immigrationand Naturalization. .

H. R. 6313. A bill for the reUef of the estate·of Yoshito Ota; to the Committee on Claims.

H. R. 6314. A blll for tlle relief ofD\ml,en­tina csJD.ara,Mary Kapoia Kalelkini, and

John Kaleikinl, Jr.; to the Committee onClaims.

By Mr. GARY:H. R. 6315. A bill to continue in full force

and effect patent No. 1,990,645; to the Com­mittee on Patents.

By Mr. KLEIN:H. R. 6316. A bill for the relief of Nandor

Frieder; to the Committee on Immigrationand Naturalization.

By Mr. O'HARA:H. R. 6317. A bill to authorize the Secre­

tary of War to appoint Henry A. Veillette asecond lieutenant In the Army of the UnitedStates; to the Committee on Military Affairs.

By Mr. PATRICK:H. R. 6318. A bill for the rellef of the Ala­

bama Flake Graphite Co., a corporation; tothe Committee on Claims.

By Mr. PATTERSON:H. R. 6319. A bill for the rellef of Flora

Palmer; to the Committee on Claims.H. R. 6320. A bill for the relief of Mrs.

Fenno W. Newman; to the Committee onClaims.

H. R. 6321. A bill for the relief of Dr. Theo­dore A. Gelssman; to the Committee onClaims.

PETITIONS, ETC.

Under clause 1 of rule XXII, petitionsand papers were laid on the Clerk's deskand referred as follows:

1859. By Mrs. DOUGLAS of Illinois: Peti­tion signed by 1,285 operating and nonoper­ating railroad employees, offering an amend­ment to House bil11737 for a 3D-year pensionor 60 years of age at $150 a month, two­thirds for the widow, providing sh.e is 55years of age and does not remarry, the peti­tion supporting the Cosgrove plan and pro­testing pension amendments (S. 293 andH. R. 1362); to the Committee on Interstateand Foreign Commerce.

1860. By Mr. GAVIN: Petition of Mrs. L. E.Chapman, Warren, Pa., and also other resi­dents of Tidioute, Warren County, Pa., pro­testing against enactment of Senate b1l1 1606and House bill 4730; to the Committee onInterstate and Foreign Commerce.

1861. By Mr. LUTHER A. JOHNSON: Peti­tion of Dr. N. E. Hunt, Charles Huff, N. B.Jordan, Joe B. McNeely, Rev. Harley Ritter,James M. Corley, Emanuel M. Castellanos,Leslie E. Wood, P. J. Waddell, Haven Tackett.Sam P. Owen, Everett Bishop, L. A. Varnes,James E. Bratcher, Ralph A. Jackson, ThomasG. BeCkham. and Daniel Speegle, tromWaxahachie, Tex., favoring House bills 5689and 5746: to the Committee on World WarVeterans' Legislation. .

SENATESATURDAY, MAY 4, 1946

(Legislative day of Tuesday, March 5,1946)

The Senate met at 12 o'clock meridian;on the expiration of the recess.

The Chaplain, Rev. Frederick BrownHarris, D: D., offered the followingprayer:

Eternal Spirit, closer to us than we areto ourselves, in this quiet moment makeour hearts and minds sensitive to Thypresence. We Who through anotherweek have urged on all our mental andphysical powers with strain and stresswould now grow still and responsive be­fore the highest we know. Refresh ourfaith that the tensions of life may not

PROCEEDINGS AND DEBATES OF THE 79 th CONGRESS

SECOND SESSION

NOT TO LEAVE LIBRARy

UNITED STATES GOVERNMENT PRINTING OFFICE. WASHINGTON, 1946

•

.OF AMERICA

MAY 23, 1946, TO JUNE 12, 1946

(PAGES 5451 TO 6770)

VOLUME 92-PART 5

Property ot-')\NCttOIAGl COWMUNlIlI»U.I<II

. c:>l/69~ .

UNITED STATES

(tongrcssional1Rccord

1946 CONGRESSIONAL RECORD-HOUSE 5645that they can begin their education onthis subject by it careful scrutiny of therePort of that select committee, and thebill which the House passed pursuantthereto.

THE PRESENT CRISIS

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

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

There was no objection.Mr. KEEFE. Mr. Speaker, in these

times of great crises it is remarkable tohear the speeches that have been madehere this morning. Certainly thechickens have come home to roost righton the doorstep of the administrationthat has toyed with this problem 10 thesemany years. Now we find that at longlast, the Committee on Labor is aboutto conduct an investigation of what theymay possibly do to amend the NationalLabor Relations Act.

It reminds me of the veteran who re­cently applied for a passport to returnto Europe, and when asked why hewanted to return after having served3Y2 years in combat, he said, "I havefound from my experience over therethat chaos in Europe is better organizedthan It is In America."

EXTENSION OF' REMARKS

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

Mrs. LUCE (at the request of Mr.MARTIN of Massachusetts) was given per­mission to extend her remarks in theRECORD.

Mr. FORAND (at the request of Mr.KOPPLEMANN) was given permission toextend his remarks In the RECORD intwo instances and inclUde in one aresolution.

NATIONAL CEMETERIES

Mr. E;ABATH.from the Committee onRules, reported the fonowing privilegedresolution (H. Res. 639, Rept. No. 21~9),

which was referred to the House Calen­dar and ordered to be printed:'

Resolved, That upon the adoption of thisresolution It shall be in order to move thatthe House resolve itself into the Committeeof the Whole House on the state of the Unionfor the consideration of the act (s. lt24) toprovide for one, national cemetery in everyState and Territory. and such other nationalcemeteries in the States. Territories. andpossessions as may be needed foc the burial ofwar veterans. That after general debate,Which shall be confined to the act and to con­tinue not to exceed 1 hour to be equallydivided and controlled by the cbalrman andthe ranking minority member of the Commit­tee on Military Affairs. the act shan be readfor amendment under tbe5-minute rule.At the conclusion of the reading of the, actfor amendment. the Committee shall rise. andreport the same back to the HQUSe With lIl\IChamendments as 'may have been adopted and ,the previous qvestion shall be Considered asordered on the act and amendments theretoto. final passage without Intervening mottonexcept one motion to recomm~.

ADMINISTRAT1VE PROCEPURE ACT

Mr. SARATH. Mr. ~er, I call upHouse Resolution 615 and ask for its im­mediate consideration.

The Clerk read the resolution, asfollows:

Resolved, That upon the adoption of thisresolution it shall be in order to move thatthe House resolve itself Into the Committeeof the Whole House on the State of the Unionfor the consideration of the act (S. 7) to im­prove the administration of justice by pre­scribing fair administrative procedure. Tpatafter general debate, which shall be confinedto the act and continue not to exceed 2 hours.to be equally divided and controlled by thechairman and the ranking minority memberof the Committee on the JudiCiary, the actshall be read for amendment under the5-mlnute rule. At the conclusion of the con­sideration of the act foc amendment, theCommittee shall rise and report the act tothe HOuse with such amendments as mayhave been adopted and the previous questionshall be considered as ordered on the act andamendments thereto to final passage withoutintervening motion except one motion torecommit. .

TO IMPROVE ADMINISTRATIVE PROCEDURE

Mr. SABATH. Mr. Speaker, later onI shall yield 30 minutes to the gentlemanfrom Michigan [Mr. MICHENERJ.

Mr. Speaker, House Resolution 615makes in order the consideration ofSenate 7 as amended by the Committeeon the Judiciary. The bill aims to im­pro-ve the administration of justice byprescribing fair administrative proce­dure. The rule is an open rule, and pro­vides for 2 hours of general debate.

Mr. Speaker, I hope this is only thebeginning of legislation to improve theaqmtnistration of justice and that it willbring about real justice to all those whoare obliged to face our courts.

NOT THIS,KIND OF JUsrlCE

-Speaking about justice, I am remindedof a story. A certain corporation law­yer. having been caned to defend anaction way out West, after surveying thesituation engaged every lawyer in thatcOWlty that he thought could be of serv­ice one way or the other. After the casewas concluded the corporation lawYerwired home, "Pleased to report case hasbeen concluded and justice prevailed."

. In about half an hour he received a wire."In view of that reSUlt, give notice ofappeal for So new trial." I hope that isnot the kind of justice we are going tohave 1\1 some of these courts as a resultof the passage of this bill.

This bill. Mr. Speaker, is the fruit of1& years of careful inquiry and con­Sideration by the Committees on theJUdiciarY in both Houses of Congress, bythe President's Committee on Adminis­trative Management, by the AttorneyGeneral's committee on AdministrativeProcedure. and bY many pUblic, quasi­public, and private groups, committees,and organizations representing the bar,business, and industry. EXhaustivehearings have been held, scores of wit­nesses heard, dooens of conferences andconsulta.tions had. seldom, indeed, hasany legislation reached the floor with somuch careful thought behind it. Highrecognition is due the members and thechairmen of the respective committees,andin particular to the gentleman frompennsYlvania [Mr. WALTER}. •

PIlJ:5ENT BILL MEE'1'S OBJ"ECTIONS·

\ The. object' of the bill is, as I havestated., to improve the administration of

rules and regulations made by theagencies under grants of power fromCongress, and to establish uniformity ofpractice w that any citizen may havehis day in court with a minimum of delayand expense.

Ever since I have been in the House,and for many years before that, therehas been complaint from lawyers, frombusinessmen, from industry, and fromplain citizens that they were lost in thema~ of administrative agencies andregulations: There has been no argu­ment as to the need for systematiza­tion and clarification; the only differ­ences have been as to the methods to befollowed, on how to achieve the desiredend with the greatest equity to the publicand the least disturbance to the complexgrowth of administrative functions. Anearlier bill, tl1e Logan-Walter bill, wasvetoed bY President Roosevelt because itwas felt to be inadequate to the prob­lems, and that it would have the "effectof crippling administrative agencies andthe courts.

PUBLrCITY VALUABLE CONTRIBUTION

There is general agreement that thepresent bill has not only eliminated theobjections previously made but hasachieved a substantial contribution in its

• publicity requirements; and that it hasarrived at an equitable. and helpful dif­ferentiation of the legislative or rUle­making powers and the quasi-iudicialpowers frequently lodged in the sameagency.

What the bill does, in SUbstance, maybe summarized under four beadings:

First. It provides that agencies mustissue as rules certain specified informa­tion as to their organization and pro­cedure, and also make available othermaterials of administrative law.

second. It states the essentials of theseveral forms of administrative proceed­ingS and the general limitations on ad­ministrative powers.

Third. It. provides in more detail therequirements for administrative hear­Ings and decisions in cases in whichstatutes require such hearings.

Fourth. It sets forth a simplified state­ment of jUdicial review designed to af­ford a remedy for every legal wrong.

COMMENDATION FOR INVlESTJGATIVl& SEC'rlONS

I shoUld like to bespeak special com­mendation for the discussion of section6 (B), dealing with administrative in­vestigation.: found on page 23 of the re­port of the House Committee on theJUdiciary. Investigations. the-committeesays, must not be "fishing expeditions,"and may not disturb or disrupt personalprivacy, or unreasonablY interfere withprivate occupation or enterprise. Theyshould be so conducted as to interfere inthe least degree compatible with ade­quate law enforcement,

I am told that this is onlY the be­ginning in trying to adjust many dif­ierent viewpoints held by various judgesin the different districts. I am hopefulthat the Committee on the Judiciarywithin a short time will bring· in a muchbroader bill that will guarantee realjus­tiCe to- all the people. and assure thatjustice wl1l be done in all proceedings,that whether a man be poor or ricl1,equal justice will be meted out.

5646 CONGRESSIONAL RECORD-···.HOU§E MAY 24

I do not wish to detain the Housefurther, as this isa bill I know.the Mem­bers are desirous of considering. I donot believe there will be much oppositionto the rUle or to the bill.

I now yield 30 minutes to the gentle­man .from Michigan [Mr. MICHENER].

Mr. MICHENER. Mr. Speaker. thWisan important bill. In my experience inCongress, no legislation has had morecareful and more painstaking consider­ation on the part of the legislative branchof the Government, the agencies of theGovernment; the committees of Con­gress, the American Blj,r Association,.business and other groups primarily af­fected. For more than 10 years, com­mittees have been working. During allthat time efforts have been made· toreach a common ground where we couldall agree and enact needed legislation.The measure we are about to consider, inmy opinion, will not receive a. negativevote in the Congress today. That issomething--='that is an accomplishment.It is the fruition of careful study, tol­erance, nonpartisanship, and genuinecooperation. The only aim and purposeof this bill is to see that the· rank andfile of 'American people receive the jus­tice which our system of jurisprudenceattempts to guarantee to them. I amnot going to go into the technicalitiesof the bill. It will be explained by mem­bers of the subcommittee of the JUdici­ary Committee, who have lived with thismatter for 10 long years. I am sure theywill be able to answer all questions. Formy part, I doubt if many questions willbe asked. When the first proposal wassuggested to the Congress, I was opposedto it. One school of thought was en­tirely of one mind. Another school ofthought was entirely of another mind.P.ossiblyeach school went too far in ad­vocating just what it thought should bedone. But after calm study, delibera­tion, and consideration, as well as tol­erance, we are here today with some­thing that the Committee on the Ju­diciary stands behind unanimously. Itis not perfect. It is a pioneer effort.It can be amplified as circumstanceswarrant.

Mr. JOHNSON of California. Mr.Speaker, will the gentleman yield?

Mr, MICHENER. I yield.Mr. JOHNSON of California. In the

state of California, the courts and thebar have spent about 6 years studyingthis same problem. They finally passeda bill almost identical to the bill you areoffering here today. It has received uni­versal approbation both of the bench andbar as well as litigants.

Mr. MICHENER. I am sure after thisbill becomes law, which I feel sure itwill, the same condition will exist in theFederal Government.

Mr. PITTENGER. Mr. Speaker, willthe gentleman yield for a comment sincemy distinguished colleague does not wantto delay matters?

Mr. MICHENER. I yield to the gen­tleman,

Mr. PITTENGER. As I understand it,this is a successor to the old original Wai­ter-Logan bill. Our distingUished col­league from Pennsylvania [Mr. WALTER]and the Ide Senater Logan rendereda great public service when they inti'o-

duced t)latlegislation. It. sllol,lld l)avebeen passed years and years ago be..cause it is in harmonY with Amer!c;anideas and American traditions of theright to go into court when you feel youhave been wronged. I hope we pass it,and pass it soon.

Mr. MICHENER. The Walter-Loganbill passed the Congress, but was vetoedby the President because, he said, thesubject needed zp.ore study. That studyhas been made, This type of bill cannotbe written on the fioor. It is too tech.,nicaI. Neither can it be adequately ex­plained in a short speech in this debate.

Mr. SCRIVNER. Mr. Speaker, willthe gentleman yield?

Mr. MICHENER. I yield.Mr. SCRIVNER. I wish to take this

opportunity to commend the committeeand the subcommittee, not only on themeasure itself, but on the full and com­plete and explanatory report which theyhave prepared. This measure is a stepin the right direction toward regulatingthe regUlators. I trust the bill will re­ceive a unanimous vote.

Mr. MICHENER. Mr. Speaker, refer­ence has been made to the committee re­port. This report contains 56 pages, andit is complete. If it were not so long, Ishould include it in the RECORD, but· Iwant the RECORD to show reference tothe report, so that anybody in the futurewho wants to know what this bill meansand why it is here will know where to goto get concise information. It is HouseReport No. 1980, Seventy-ninth Congress,second session.

Mr. Speaker, Dean E. Blythe Stason, ofthe law school of the University of Michi­gan, served on the Attorney General'scommittee studying administrative pro­cedure. He has also served on bar asso­ciation committees making like investi­gation. Indeed, he is an expert on ad­ministrative procedure legislation and Ihave a great respect for his judgment inthese matters. After reading this bill,Dean Stason wrote to me approving thebill in its present form. He said:

This measure has now been given verycareful attention, not only by the Senatecommittee, but also by the appropriate com­mittees of the American Bar Association,where It has been debated, revised, and reo.reVised, throughout the last half dozen years.X have studied the act very carefully indeedand in fact have participated In certain ofthe earlier drafts. X am convinced that themeasure Is now In first-class condition andis as good a mea,sure as can be expected atthis time In so highly controversial a fieldas that of administrative law, X hope tha,tthe bill becomes a, la,w at an early date.

I understand that the other membersof the former Attorney General's com­mittee agree with Dean Stason.

Mr. Speaker, I have no requests fortime on this side.

Mr. SABATH. Mr. Speaker, I yield 5minutes to the gentleman from Virginia[Mr. SMITH].

Mr. SMITH of Virginia. Mr. Speaker,I am delighted to see this bill come to thefloor in the form in which it is probablygoing to receive the approval of both theHouse and the Senate. This is a subjectthat should have been dealt with manyyears ago. It is more important now thanever before. It is becoming more impor­tant every day. ~here has grown up a.

g:re~t .!!ystem of administrative proceduretlll;tt)las ~r()Wn up without any regUlationbyClmgress to the point where the aver­ageCiti2len who has a matter before anybureau in Washington must go througha maze of rules and regulations unknownto him and often unknown to the agencywhich dealS with them.

I have' given this subject much con­sideration.. In fact, I introduced a billwhich went farther than the present bill.I had hoped that certain features of itwould go farther. I had hoped that wewould have a more complete separationof the judicial and executive functions inthis bill. I do think that the committeehas gone a long way, and perhaps theyare wise in not going any farther thantheY have gone.

I want to call the attention of theHouse particularly to the report on thisbill, as has the distinguished· gentlemanfrom Michigan [Mr. MICHENER]. It isone of the finest reports I ever read. Itis clear, full, and complete. There aremany details in setting up a code of ad­ministrative procedure. It is a greatundertaking. I look upon this bill asmerely the beginning of setting forth acode that will regulate and coordinatethe procedure in all of these proceduresbefore executive agencies.

This bill has this added advantage:Although one bill was vetoed by the Pres­ident, although there has been muchcontroversy over this whole subject, wehave at last reached the point where theCommittee onthe JUdiciary in the Houseof :Representatives has agreed upon a bill,and I understand they have consultedwith the JudiCiary Committee of the Sen­ate, and this bill has been submitted tothem in its amended form and it is agree­able to the Senate. On the last page ofthe report you will find a complete en­dorsement by the Attorney General. Sothe Senate Judiciary Committee, theHouse Judiciary Committee, and the At­torney General all being in accord, Imerely took the floor to express the hopethat, notWithstanding some of us mayhave wanted some addition of details tothis bill, we will all agree on this bill asit is written, and we will not place anyamendments on the bill which mayjeopardize its ultimate passage at thissession of the Congress. It is a most im­portant thing to do. J;..do hope the Housewill pass this bm as it is, so that we mayfinally make a fine start, as we are in thisbill, upon legislation that has been solong needed and so long neglected.

The SPEAKER. The time of the gen­tleman from Virginia has expired.

Mr. SABATH. Mr. Speaker, I yield 5minutes to the gentleman from Mis­souri [Mr. SLAUGHTER].

Mr. SLAUGHTER. Mr. Speaker, Iask unanimous consent to speak out ofol'der and to revise and extend myremarks.

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

There was no objection.Mr. SLAUGHTER. Mr. Speaker,· I

cannot go along with the violent attacksthat have been made upon the adminis­tration this morning. In the first place,I think many of them are unjust. Sec­ond. and more important, the vitupera-

1946 CONGRESSIONAL RECORD-HOUSE 5647

tive name-calling is not going to pull thiscountry out of the industrial paralysiswhich grips it today. Whatever mis­takes the administration may have madeare water over the dam. The fact re­mains that actIon is needed and needednoW', and I know of no place from whichit can come but from the Congress ofthe United States.

Can something be done? I think itcan. I have just introduced a bill whi<Jh,in .my judgment, will ·end the railroadstrike within a matter of hours, if andwhen it becomes law. I can say this, forI have no pride of authorship. It largelyfollows the amendment presented bySenator SCOTT LUCAS, of Dlinois, in thebill which is now pending in the Senate.

This bill reaffirms and restates a dec­laration of policy so self-evident thatthere can be no dispute as to its wording.It detines and states as Ii national policythat strikes in those industries whichaffect the health and safety of (Jur peo­ple cannot be tolerated. It provides andreaftirms the power which the Presidentalready has to seize such industries-andthis the President has already done. Itseeks to curb and prohibit a strikeagainst the Government of the, United.states, for the present railroad strike isnot a strike against the carriers. It isa challenge to the authority of the Presi­dent of the United States. It is a flout­ing of the Congress. It is a cruel andilTesponsible. gesture Of contempt to theAmerican people.

Briefly. this bill provides that once thePresident, acting as the Chief Executiveof the Nation, has found that a workstoppage seriously aJIeeting the healthand safety of the people is imminent andhas seized an industry, persons who con­tinue to strike against the Gnvernmentof the United States shall lose theirstatus as "employees" within the mean­ing of the Labor Relations Act. Thismeans that an employee striking againsthis Government loses his seniority,

Of all the railroad brotherhoods. theOrganiza.tion of Railroad Engineers hasbeen one of the best. Engineers areusually oldest in point of service on arailroad. They are responsible, sober,loyal, and patriotic citizens. They haveworked up to the position of engineers,and they are well paid 8.nd. sholild be.Under the award of the President's fact­finding board, which has already beenaccepted by the carriers il.nd by all buttwo of the brotherhoods, the average payof a railroad engtneer will be $5,700. It ismore than the Governor of maiJ..y statesreceive. It is more than the judges inmany parts of the country receive. It isgreater compensation than is paid to themayors of many large cities. I submitthat it is a figure that meets with the ap­proval of most of the men affected. Ifnot, further negotiations can be had,. butthey must be had while rail tramc con­tinues to move.

The bill does not in any way prohibit astrike against a private employer. Itsimply outlaws and prohibits a strikeagainst the sovereign power of the UnitedStates Which must be superior to· theright and power of any other individualor group if we are to survive. as a greatnatiQn. The bill interferes in DO wa:ywith subsequent collective bargaining

negotiations between employer and em­ployee during the period of Governmentseizure. It would merely provide, in theinstant case, the trains engaged in in­terstate commerce would continue to roll.

Never in the history of the countryhave we faced an industrial crtsis such asconfronts us today. Trains cannot runwithout engineers, and when those Vitalemployees walk out, commerce ceases tomove. Here in the Nation's Capital Iam informed that only two trains out ofmany hundreds normally operated, winmove from Washington to New York to­day. By Monday suifering and want willstalk this land, and if the strike contin­ues many days, sickness and epidemicsare inevitable. The House leadershiphas wisely and prudently decreed thatthe House will be in session tomorrow.We can be in session until midnight ifnecessary. We can act either on the billjustjntroduced or on the Senate version,jf that bodY should pass legislation today.No longer can we wait for deliberativeaction. Passage of the bill just intro­dUced will, in my opinion, terminate thepresent stIike of engineers, and knowingengineers as I do, I say they will welcomethis legislation. They are not strikingagainst their Government throughchoice but because they are ordered to doso. They can and must return, and thepassage of this legislation, which couldreceive the President's signature beforethe week end is out, will avert a nationaldisaster of inconceivable magnitude.

Mr. SABATJL Mr. Speaker, I yield 3minutes to the gentleman from NorthCarolina [Mr. Eavml.

Mr. ERVIN. Mr. Speaker, I ask unan­imous consent to proceed out of order,and to revise and extend my remarkS'.

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

There was no objection.Mr:. ERVIN. Mr. Speaker, our eco­

nomic house is on fire. The Committeeon L&bor has appointed a subcommitteeto investigate the causes of the fire. Itseems to me it would be wiser to takesome steps to pour a little water on thefire and try to extinguish it, rather thanto investigate the causes of the fire whilethe house bums down.

Mr, SABATH.. Mr. Speaker, I movethe previous question on the resolution.

The previous question was ordered.The resolution was agreed to.Mr. SUMNERS of Texas. Mr.

Speaker, I. move that the House resolveitself into the Committee of the WholeHouse on the State of the Union lor theconsidera.tion of the bill (S. 7) to im­prove the adminiStration of justice byprescribing fair adIqinistrative proce­dure.

The motion was agreed to.. Accordingly the House resolved itself

into the Committee of the Whole Houseon the State of the Union for the con­sideration of the bill S. '1, with Mr.8idrm of Virginia in the chair.

The Clerk read the title of the billBy UJl!a.nimowiconsent, the flrst read~

in:g of the bill was dispensed with.Mr. SUMNERS of Texas. 'Mr. Chair­

man. I field 15 minutes to the gentlemanfrom. Pennsylvania. [:Mr. WAL:J:ER1.

r. THE MlOBLI!"M

Mr. WALTER. Mr. Chairman, for ageneration Americans have been broughtface to face with new forms or methodsof government, which we have come tocall administrative law. It is adminis­trative because it involves the exercise oflegislative and judicial powers of govern­ment by officers who are neither legis­lators nor judges. It is law because whatthey do is binding upon the citizen ex­actly as statutes or judgments are bind~

ing.The people of the country have been

of difiel'ent minds about this new phe­nomenon. Thirty years ago they werearguing about ·its validity under the con­stitutional system of the United States.Twenty-five years agO the argument hl\-dshifted to questions of how far the courtsshould be authorized to control adminis­trative operations. Within the last II}years the emphasis has swung to prob­lems of administrative organization andadministrative procedure.

The plain fact is that administrativegovernment, or administrative justice. asit is sometimes called, has been with usa long time and is obViously here to stay.in the last 15 years it has grown by leapsand bounds. Thirty years ago a. distin­guished statesman:, Elihu Root, put theproblem in words which have not sincebeen improved upon. He then said:

There is one special field of law develop­ment whillb b88 manifestly become inevi­table. We are entering upon the creation oCa. body 01 administrative law quite differentin its madlinery, ita remedies, and Its neees­sary safeguarcls from the old methodll ofregulation by specific statutes enforced bythe courts. As a community passes fromsimple to complex conditions the only wayin which government can deal with the in­creased burdena thrqwn upon it is by thedelegation of power to be exercised. In detailby subordinate agents. subject to the controlof general cUrectiona prescribed. by superiora.uthority. The necessities of our situation.have already led to an extensive employmentof that method. The Interstate CommerceCommIssiOn, the state public 'service com­missions, the powers of the Pederal ReserveBoard, the health departments of the States,

.and many other superviSory offices and agen­etes are familiar nlustrations. Before theseagencies. the old doctrine pl'ohibiting thedelegation of legislative power bas Virtuallyretired from the field and given up the fight.There will be no withdrawal from these ex­periments. We shall go on and we shall ex­pand them, whether we approve theoreti­cally or not, because such agencies furnishprotection to rights and obstacles to wrongdoing which under our new social and In­dustrial cotiditions ClInnot be practically ac­complished by the old simple procedure oflegislatures and courts lIS in the last genera­tion. Yet the powers that are committed tothese regulating a,gencies, and which theymust have to do thefr work, carry with themgreat and dangerous opportunities oJ oppres­sion and wrong. If we are to continue agovernment of llmited powers: these agenciesof regulation mUllt tbemselves be regulated.The limits of their power over the citizenmust be fixed and determined. The rightsOf the ettizenagaInst them must be madeplain. A system of administrative law mustbe developed, and that With us is stm In ItslnfaDcy, crude and imperfect;

Similarly, 20 years ago, Charles Evans. Hughes had· this t(l say:

Legislatolll have little time to foIlO'W thetrails of expert inquiry and so we turn the

5648 CONGRESSIONAL RECORD-HOUSEwhole business over to a few.with broad au~

tl;lOrity to make the actual rules which con­trol our conduct. The eXigency is inescap­able but the guardians of liberty will everbe watchful lest they are rushed trom legis­lative incapacity Into o1ll.clal caprice. If weescape bureaucracy it will not be because ofdissertations on delegations of legislativeauthority. We are a practical people andnecessary delegations w1ll not fail to fb;ldreasons to support them. It wlll be onlybecause we never lose sight of the ultimatepurpose of goverp.ment, because we wouldrather take some risks than give too muchleeway to 01ll.cialism, because we refuse toestablish or maintain power for Its own sake,and becauSe we have the assertiveness of theunbroken will of freemen who wlll insistthat' every pUblic o1ll.cer must constantly feelthat he is a servant and not a master, theservant of all Intelligent community whichis content with thorough investigation andimpartial findings and scientific applications,but is not servile and is able and quick todetect favoritism or arbitrariness. It willbe for the reason that we are not willing toexchange our birthright for a mess of admin­istrative pottage, no better for bemg preparedby democratic cooks.

These are statements of great men,learned in the art of government andin the technique of the law. Theirmeasured language, however, is merelythe echo of history and common senseof English-speaking peoples. On theeve of the American Revolution thegreat Pitt warned that "unlimited powercorrupts the possessor." Our Declara­tion· of~Independence, which foHowed afl;!w'years later, charged that the BritishKing had "sent hither swarms of offlcersto harass our people," sponsored "arbi~

trary government," sought to introduce"absolute rule into these Colonies," andproposed to alter "fundamentally theforms of our governments." Thosewere the words of Thomas Jefferson,used to describe the administrativetyranny of the time.

Other people in other walks of lifehave recognized and expressed the sameideas here and abroad. In 1901 thegreat historian who was also Bishop ofLondon uttered these historic words:

Power tends to corrupt, and absolute powercorrupts absolutely.

Even the poets have had their say, asin these words from the pen of Shelley:

Power, like a desolating pestilence,Pollutes whate'er it touches.

Today, in the backwash of the great­est war of history, we need not be re­minded of the abuses which inevitablyfollow unlimited power.

n. LEGISLATIVE HISTORY

The situation has not been ignored bythe Congress of the United States. For10 years it has been considering legisla­tion. The difflculty has been the com­plexity of the· subject, the disturbancesof the times, and world-shaking eventsin the international sphere. In consid­ering the legislative proposals presentedsince 1933, the Congress has held manyhearings and its committees have issuedmany reports on the subject.

The executive branch also has beenconcerned. The ll:l.te President FranklinD. Roosevelt initiated or approved twomajor investigations on the SUbject, bothof which resulted in legisla.tive recom­mendations of far-reaching consequence.Our great Attorney General, the Honor-

able Tom Clark, has participated in the!frafting of the present bill, and he hasrepeatedly endorsed it.

The history of these activities is setforth at length at pages 7 to 16 of thereport of the Committee on the Judieiaryrespecting the present bill. While vari­ous proposals have been made over theyears..the continuous line ot: developmentleading to the present bill is there for allto read. In 1937, when transmitting tothe Congress the report· of his Commit­tee on Administration Management,President Roosevelt stated that the prac­tice of creating administrative agencies,which perform administrative work inaddition to judicial work, threatens todevelop a "fourth branch" of the Govern­ment, for which there is no sanction inthe Constitution. In 1938 the Senateand House Committees on the JudiciarYinvestigated very thoroughly the proposalfor the creation of an administrativecourt. In 1939 and. 1940, Congresspassed an administrative-procedure billwhich President Roosevelt vetoed be­cause, as he-stated in his message to thisbody, he desired to await the report ofthe Attorney General's Committee onAdministrative Procedure, which hadthen been at wor'- for over a year pur­suant to instructions to make a thoroughstudy and comprehensive recommenda­tions.

In 1941 the Attorney General's Com­mittee, after some 2 years of labor andissuance of numerous printed studies ofthe operations of important agencies ofthe Federal Government, issued its finalreport. Legislative hearings were heldin April, May, June, and July of the sameyear on the legislative proposals growingout of the work of that committee.

War intervened. It was-not until 1944that the Judiciary Committees of bothHouses could again become active re­specting this problem.

So much had been done in the prioryears that it was perfectly obvious thatthe problem remaining was one of drafts­manship. In reaching the final form ofthe bill the executive branch and privateinterests of every kind were called intoconsultation over a period of a year ormore as is set forth at pages 14 to 16 ofthe report of the Committee respectingthe present bill.

With the details of this very extendedlegislative history I shall do no.more thanrefer the Members of the House to theCommittee report. It is a comprehensivedocument. It sets forth all the offlcialhistory of this bill and its predecessors.

III. THE GENERAL STRUCTURE OF THE BILL

Many people who apllroach the subjectcif general administrative law legislationeither conceive the.problem as one whichis very simple, or as one which is so com­plex as to be impossible. Neither im­pression is correct.

Granted that Federal powers are go­ing to be exercised and that they aregoing to be exercised through administra­tive agencies, there is no simple panacea.To expand court review would not, forexample, remedy the administrative sit­uation at its source. To adopt somedrastic system of independent hearingofficers would not take care of the vastarea of governmental activity where

there are no hearings. To requirehearings in all cases would add unneces­sary burdens in the business of govern­mentandwoul!f at the same time deprivethe citizen of the need for speed wherequick action is !fesirable.

Nor on the other hand is administra­tive operation so complex in its funda­mentals that it cannot be grasped by anintelligent mind and regulated by simplestatute. It is true that the number ofadministrative agencies is great. Thenumber of subjects with which they d'ealis even greater. The number of admin­istrative powers almost passes beyondconception. But what administrativeofflcers or agencies do falls into a fewsimple categories.

We are not here concerned so muchwith mere custodial or managerical tasksof administration. But we are con­cerned with administrative powers whichare compulsory in their nature. We aremainly concerned with administrativeprocesses, in other words, which are reg­ulatory in their effec.t. Compulsory orregUlatory administrative operationsfall into three main groups:

First, there are the legislative func­tions of, administrative agencies, wherethey issue general or partiCUlar regula­tions which in form or effect are like thestatutes of the Congress. Among theseare such regulations as those which stateminimum wage requirements or agricul­tural marketing rules. Congress-if ithad the time, the staff, and the organi­zation-might itself prescribe thesethings. Because Congress does not doso itself and yet desires that these thingsbe done, the legislative power to do themhas 'been conferred upon administra­tive officers or agencies.

The second kind of administrative op­eration is found in those familiar situa­tions in which an officer or agency de­termines the particular case just as, inother fields of law, the courts determinecases. Examples of this type of adminis­trative operation are the injunctive or­ders issued by the Federal Trade Com­mission. Other agencies are authorizedto award damages, which are usuallycalled reparations in the administra­tive field. What the agencies do in thesecases is to determine, just as a courtmight determine, the liability of a partyor the redress to which a party is entitledin a specific case on a specific state offacts and under stated law.

The third type of administrative com­pulsory power may be incidental to eitherlegislative or judicial powers of adminis­~rative agencies, or it may be entirely in­dependent of either. I refer to the com­pulsory action of administrative agencieswhen they issue subpenas, require rec­ords or reports, or undertake mandatoryinspections. These functions are inves­tigative in nature. The investigationmay be made in connection with theirlegislative or jUdicial functions, or itmay be made for the purpose of submit­ting a report to Congress or to refer pros­ecutions to a grand jury. Whatever thepurpose, the administrative arm is givenpower to require information to be SUb­mitted to it.

The present bill carefully distinguishesbetween these three basic' types of ad­ministrative regulatory powers. Indeed

1946 CONGRESSIONAL RECORD-HOUSE 5649it goes further, and within these typesof powers or· 'operations it frequentlymakes differentiations and exceptions.For example, in connection with the leg­islative or rule-making function, the billdifferentiates several kinds of rules suchas rules of procedure as distinguishedfrom rules of substance. Also, in con­nection with the judicial function of ad­ministrative agencies; the bill differen­tiates between adjudications made ~n

connection with foreign or military af­fairs as distinguished from those in thedomestic or civil field.

But this bill does more than merelyanalyze the administrative process andlay down the forms of procedure foreach. It really deals with three sepa­rate SUbjects: First, public information;second, administrative operation; andthird, jUdicial review.

The first operative section of the bill isbasic and requires agencies to issue cer­tain information which is essential toinform the public about the substanceand the procedure of administrative law.It requires that agencies state their or-­ganizational set-ups, promulgate state­ments respecting their procedures, andmake available as regulations the sub- .stantive and interpretative rules whichthey have framed for the guidance ofthe public.

Sections 4, 5, 6, 8, 9, and 11 deal withadministrative operations. Section 4relates to the legislative functions of ad­ministrative agencies and provides. thatwhere Congress has not required hear­ings, with some exceptions, the agencyshall give notice of the making of pro­posed regulations and afford interestedparties an opportunity for the informalsubmission and consideration of theirviews or requests. Section 5 deals withadministrative adjUdications of particu­lar cases where Congress has requiredadjudications to be made upon a hear­ing. Sections 7, 8, anti 11 spell out thedetails of hearing and -decision proce­dures in all cases in which, by other leg;.islation, Congress has required an agencyhearing. Section 9 states certain limi­tations upon the penalties or relief whichagencies may impose or confer in anycase. Section 6 dealS with the investi­gative powers and other incidental mat­ters of importance.

. In the all-important field of judicialreview section 10 is a complete statementof the subject. It prescribes briefiywhen there may be judicial review andhow far the courts may go in examininginto a given case.

I shall discuss all these matters ingreater detail next in taking up the billsection by section, subsection by sub.section.

Before doing so, however, I should liketo refer the Members of the House to thediagrammed synopsis of the bill whiChwill be found at pages 28 and 29 of thecommittee report. There, as nearlyas possible within the limitations of theprinted page, is presented a diagramsketch of the provisions and operation ofthe bill. I should also like to refer th~

House to Appendix A of the comntitteereport, at pages 49 to 56, Which tncii­.cates the changes made by the cpnu:n,it­tee amendment in the bill as ~t passedthe Senate. There is shown no.t only

the changes made in the text of the bilI,but footnotes explain the reason for eachchange. I think I may say with confi­dence that these changes have been ac­ceptable to all who have labored in thedrafting of this measure. The biU as itpassed the Senate was a good bill, but thesubject is one of such great importanceand of such far-reaching effect that thecommittee has felt it wise to make nu­merous cl1anges for purposes of clarifi­cation and in order to leave no doubt asto what is intended by the legislation.

IV. DETAILED PROVISIONS

In taking up the specific provfsions ofthe bill as reported to the House, I willnot attempt to restate all of the detailwhich appears in the committee reportat pages 18 to 48. I shall try, however,to emphasize those things which are ofparamount importance and at the sametime state how the prOVisions of the billas a whole are intended to operate.

DEFINITIONS, SECTION 2

In a bill of this kind the definition sec­tion is of great importance. The defini­tions in section 2 simplify the remainingprovisions of the bill. They also makemore precise the kinds of operationswhich are inclUded in the terms used inthe bill.

AGENCY, SECTION 2 (A)

The definition of agency in section 2(a) of the bill is perfectly simple andconsists of two elements: First, there areexcluded legislative, judicial, and terri­torial authorities. Secondly, there is in­cluded any other authority regardless ofits form or organization. In short, who­ever has the authority to act with respectto the matters later defined is an agency.

However, except for the public infor­mation reqUirements of section 3, there

. are expressly exempt from the term"agency" all those composed of repre­sentatives of parties to the disputes de­cided by them. The reason for this ex­ception is that agencies of that kind, suchas the National Railroad RetirementBoard and Railroad Adjustment Board,area special class. On the other hand,the National Mediation Board, another

.agency established under the RailwayLabor Act, and not an agency composedof representatives .of the parties or ofrepresentatives of organizations of theparties to disputes determined by them,is an agency within this definition.

For obvious reasons there are alsoexcepted defined war authorities func­tioning under temporary or named stat­utes.Purely military and naval func­tions should obviously be exempt. ItsimPlY was not wise to attempt to adaptthe bill to the functioning of civiliandefense authorities because of their tem­porary nature and. because the Congresshas separately legislated respecting them.

PERSON AND PARTY, SECTION 2 (B)

I think nothing need be said about thedefinition of "person" and "party" insection 2 (b), since it Is obvious on itsface,·

RULE AND RULE MAKING, SECTION 2 (C)

The defi~i~onof "rule" and "rule mak­ing" in section 2 (c) is very important.It defines the legislative function of ad~

lninistrative agencies. Here I might saythere is great confusion in the terms usedin the field of administrative law. Theword "regulations" is sometimes im­properly used to embrace the decisions.of particular cases. Also, regulationsare often called something other thanrUles or regulations. Thus we find thatregulations specifying prices or rates aremore often than not called orders.Similarly, Treasury regulations are cus­tomarilY called decisions. To the per­son who is not expert in the field ofadntinistrative law, the confusion ofterminology is baffling. From time totime new terms are invented, such as'the word "directive,"

In this bill the accepted analyticalterminology has been adopted. Accord­ingly we speak of rule or rule makingwhenever agencies are exercising legis­lative powers. We speak of orders imdadjUdications when they are doing thingswhich courts otherwi::e do.

The definition of "rule" and "rule mak­ing" in section 2 (c) is of paramount im­portance. Upon that definition dependsthe application or nonaI:plication of latersections of the bill. The rUle making re-.qUirements are simpler than the adjU­dication reqUirements of toe bill.

"RUle" is defined as any agency state­ment of general or partiCUlar applica­bility and future effect designed to statethe law, policy, organization, procedures.or practice requirements of any ad­ministrative agency. The definition fol­lows that of the Federal Register Act.with some additional language for pur­poses of clarification and certainty. Inrule making an agency is not tellingsomeone what his rights or liabilities arefor past conduct or present status underexisting law. Instead, in rule makingthe agency is prescribing what the fu­ture law shall be so far as it is author­ized so to act. Advisory interpretativerulings in particular cases, however, arenot "rules" within this definition.

ORDER AND ADJUDICATION. SECTION 2 (D)

"Order" and "adjudication" as definedin section 2· <d) cover the judicial func­tion of administrative agencies. They.embrace all of the decisions that agen­cies make in matters other than rulemaking. Two items in the definitionshould be noted. First, "licensing" isexpressly included. Secondly, injunc­tive orders-such as those issued by theFederal Trade Commission-are also ex­pressly inclUded,

LICENSE AND LICENSING, SECTION 2 (E)

The definition of "license" in section 2(e) is included in order to embrace everyform of operation where a private partyis required to take the initiative in se­curing the official permission of a gov­ernmental agency.

SANCTION AND. RELIEF•. SECTION 2 (F)

The definition of "sanction" or "relief"in section 2 (f) is included mainly forthe purpose of simplifying the languageof sections 9 and 10. As they show ontheir face, those terms are meant to beall embracing.

AGENCY PROCEEDINGs AND AGENCY ACTION,SECTION 2 (G)

The final definition of "agency pro­ceeding" and "agency action" in section

5650 CONGRESSIONAL RECORD-HOUSE, MAY 242 (g) is included in order to simplify thelanguage of later provisions of the bill.

The important definitions In section 2are the definitions of "agency,'" "rule,"and "order." Those are basic. Theother definitionS are included either forpurposes of clarification or to simplifythe remaining sections of the bill.

PUBLIC INFORMATION, SECTION 3

As heretofore indicated, the public in~formation requirements of section 3 areamong the most important and usefulprovisions of the bill. Excepted are mat­ters requiring secrecy in the public in­terest-sueD as certain operations of theSecret Service or FBI-and matters re-

'lating solely to the internal managementof an agency.RULES REQUIRED TO BE Pl.'BLISHED, SECTION 3 (A)

Apart from those exceptions, agenciesare required by section 3 (a) to pUblish,first, their organization and delegationsof final authority, second, a statement of

,their methods and rules of procedureregarding each of their functions; and,third, the substantive rules they areauthorized to make and their interpreta,­tive rules or policies issued for the guid­ance of the public. Publication is notrequired as to rules addressed to andserved upon named parties In accordancewith law.

These requirements are enforced bythe provision that no'person shall in anymanner be required to resort to organiza­tion or procedure not so published. Thismeans, among other things, that theaccepted rule respecting the exhaustionof administrative remedies would notapply where the agency has not publishedthe required information respectingorganization or procedures. However,the requirement that agencies must sepa­rately state these several kinds of rulesdoes not mean that agencies would berequired to revise and republish all theirexisting rules, but would simply have toissue organizational and procedural rulesfor future cases, and in the future Suchsubstantive rules as they may issue mustbe free of the freequent hodgepodge oforganizational and procedural matter.

The effect of this subsection will be torequire all agencies to issue at least tworules, or sets of rules-one respectingtheir organization and the other respect­ing their procedures. In addition, wherethey are authorized to issue substantiverules-such as price regulations-orwhere they issue statements of policy­as in the Communications Commission­or interpretative rules-as in the Bureauof Internal Revenue-they would issue athird body of materials. The effect willbe that parties will understand the coun­try-wide organization of administrativeagencies and their methods of procedure,as well as have access to the regulationsand general interpretations in matters ofsubstance which the' agency has framedfor the guidance of the public.

In this connection I would like to callthe attention of the House to the factthat the Attorney General's Committeeon Administrative Procedure, which wasappointed at the direction of the Presi­dent of the United States and whichfunctiom;d from '1939 to 1941, was em-

phatic alld unanimous on this subject.It stated the situation thus:

Few Federal agences .issue comprehensiveor usable statements of their own internalorganization-their principal ofllces, ofllcers,and agents, their divisions and SUbdivisions;or their duties, functions, authority, andplaces of business. • • • Yet withoutsuch information, simply compiled andreadily at hand, the individual is met at thethreshold by the troublesome problem ofdiscovering whom to see or where to go.

The Attorney General's Committee onAdministrative ProceQure unanimouslyagreed that "laymen and lawyers alikeare baffled by a lack of published Infor­mation to which they can turn when con­fronted with an administrative prob­lem"-Final Report, page 25. The chair­man of that Committee further explainedthis situation tOll. subcommittee of theSenate as follows:,

The agency is one great obscure organiza_tion with which the citizen has to deal. Itis absolutely amorphous • • • No oneseems to h'ave specific authority • • •That is what is baffling. (Hearings, SenateJUdiciary Subcommittee, on S. 674, 675, and918, pt. II, 77th Cong., 1st sess., p. 807.)

But the present situation is even moreserious; than whe nthose statements weremade. Every Member of Congress is wellaware of the difficulty of finding one'sway about in the maze of Federal agen­cies. That being so, the problem of thecitizen west of the Potomac is a hundred­fold lUore difficUlt

OPINIONS AND ORDERS. SECTION 3 (B)

In the case of opinions and orders is­sued by agencies in the exercise of theirjudicial functions, section 3 (b) of thebill requires them either to be pUblishedor made available to public inspectionexcept where held confidential for goodcause. All rules must be either pUblishedor made available to public inspectionbut, as heretofore stated, interpretativerulings in particular cases are not rules.

PUBLIC RECORDS, SECTION 3 (C)

Section 3 (cl also requires agencies tomake matters of official record availableto inspection except as by rUle it mayrequire them to be held confidential forlegal cause.

RULE MAKING, SECTION 4

Section 4 deals with the very importantsubject of rule making. From it, how­ever, are exempted: First, military, naval,or foreign affairs functions; and second,matters relating to agency managementor personnel or to public property, loans,grants, benefits, and contracts. The ex­emption of military and naval functionsneeds ,no explanation here. The ex­empted foreign affairs are those diplo­matic functions of high importancewhich do not lend themselves to public

'procedures and with which the generalpublic is ordinarily not directly con­cerned. The exemption of proprietarymatters is included because in thosecases the Government is in the positionof an individual citizen and is concernedwith its own property, funds, or con­tracts.

NOTICE OF RULE MAKING, SECTION 4 IA)

There !J.re two particularly importantaspects of section 4 (a), which deals With

the notice of rule making. In the. firstplac~. where notice is required, it shouldbe cOIDplete and specific as the subsec­tion indicates on its face. In the secondplace. except where notice and hearingare required by some oth~r statute, theagenby by this provision is authorized todispense with notice where it finds forgood cause that notice and public proce­dure thereon are impracticable, unneces­sary, or contrary to the public interest.This latter Is not an escape clause but onewhich, as the committee report explains,may be made operative only where factsand interests are sUch that notice andproceedings are impossible or manifestlyunnecessary.

PROCEDURES, SECTION 4 CB)

The second subsection of section 4 isdesigned to provide that, where otherstatutes do not require an agency hear­ing, the legislative functions inadminis­trative agencies shall, so far as pOSSible,be exercised only upon some form ofpublic participation after notice. Thatis, an agency may permit parties to SUb­mit written statements, confer with in­dustry advisory cOlUmittees, hold openmeetings, and the like. Whatever meth­od is adopted, the agency must considerthe data or argument so presented by in­terested people and incorporate a concisegeneral statement of their basis and pur­pose in any rUles it issues. '

The effect of this provision will be toenable parties to express themselves insome informal manner prior to the is­suance of rules and regulations, so thatthey will have been consulted before be­ing faced with the accomplished fact ofa regUlation which they may not haveanticipated or with reference to whichthey have not been conSUlted. This pro­vision will make for good public relationson the part of administrative agencies.Wisely used and faithfully executed, asit must be, it should be of great aid toadministrative agencies by affordingthem a simple statutory means of ap­prising the public of what they intendto do and affording the interested public.a nonburdensome method of presentingits side of the case. Day by day Congresstakes account of the interests and desiresof the people in framing legislation; andthere is no' reason why administrativeagencies shOUld not do so when theyexercise legislative functions which theCongress has l;lelegated to them.

EFFECTIVE DATE OF RULES, SECTION 4 (Cl

Under section 4 (cl agencies are re­qUired, In addition to the foregoing" todefer the effective date of any substan­tive rule for not less than 30 days exceptas they may specifically provide other­wise for good cause or in the case of rulesreCoghizing exemptions or relieving re­strictions, and so forth. This sectionplaces the burden upon administrativeagencies to justify In law and fact theissuance of any rule effective in less than30 days. Rules may be made effective ina legally reasonable time less than 30days because of the, shown urgency ofconditions coupled with demonstratedand unavoidable limitations of time. Thesection requires agencies to proceed withthe convenience or necess~tyof the people

1946 CONGRESSIONAL RECORD-HOUSE 5651affected as the primary consideration, sothat an agency may not itself be dilatoryand then issue a rule requiring compii­ance forthwith.

PETITIONS, SECTION 4 (D)

Section 4 <d) is of the greatest im­portance because it is designed to affordevery properly interested person statu­tory authority to petition for the is­suance, amendment, or repeal of a rille.No agency may receive such petitions in amerely pro forma manner. Every agencypossessing rule-making authority will berequired to set up procedures for the re­ceipt, consideration, and disposition ofthese petitions. The right of petition iswritten into the Constitution itself. Thissubsection confirms that right whereCongress has delegated legislative powersto administrative agencies. As in con­nection with the prior provisiOns of sec­tion 4, this subsectioI! should be a mostuseful instrument for both improving thepublic relations of administrative agen­cies and protecting the public by afford­ing interested persons a legal and regularmeans of securing the issuance, change,or rescission of a rule.

ADJUDICATION, SECTION S. ,

Section 5 relates to the judicial func­tion of administrative agencies wherethey decide specific cases respecting com­pliancewith eXisting law or redress underexisting law. It applies, however, onlywhere Congress by some other statute hasprescribed that the agency shall act onlyupon a hearing and, even in that case,there are six exceptions. The require­ments of section 5 are thus limited tocases in which statutes otherwise requirea hearing because, where statutes do notrequire an agency hearing, the partiesaffected are entitled to tryout the per.tinent facts in court and hence there isno reason for prescribing informal ad­ministrative procedures beyond the re­quirements of section 6 which I will dis­cuss presently. The right of trial. denovo in judicial review in cases Where'agencies do not proceed upon a statutoryhearing will also be discussed later inconnection with section 10 (e).

As stated, even where statutes requirean agency hearing, this section does notoperate respecting, first, matters subjectto trial de novo in court; second, the se­lection or tenure of public officers otherthan examiners; third,decisions restingsolely on inspection, tests or elections;fourth, military, naval, or foreign affairsfunctions; fifth, cases in which an agencyis acting for a court; sixth, the certi­fication of employee representatives. Ithink that little need be said about these'exceptions. Where, although the agencyis required to hold a hearing, the facts arenevertheless subject to retrial in court, ithas seemed fairly obvious that the partiesare adequately protected at the jUdicialstage of the proceedings so that there isno great reason to require additional for­malities in the administrative processitself. I am not aware of any clear stat­utory provision that the selection or ten­ure of public officers is subject to a stat­utory agency hearing, but the exceptionhas been inclUded because the situationis a special one for Congress to decide by

separate legislation. Where decisions restsolely on inspections, tests, or electionsit is clear that the hearing and decisionrequirements applicable in other caseshave no place. The exemption of mili­tary, naval, or foreign affairs functionsis again obVious; moreover, it does notappear that statutes require hearings insuch matters. I have heretofore com­mented on the meaning of the term "for­eign affairs." Where an agency is act­ing for a court, and thereby its factualand legal basis of action is subject tojudicial control in toto, there is no rea­son for insisting upon any particularform of administrative formality. Certi­fication of employee representatives isexempted because the determinations inthose cases 1>0 largely rest either upon anelection or .its availability.

NOTICES, SECTION S (AI

Subsection (a) of section 5-respectingnotices in the exercise of the judicialfunction of administrative agancies-isdesigned mainly to assure that such no­tices are adequate, particularly in thematter of stating the particular issues oflaw or fact which parties must meet. Inthat connection I wish to call the atten­tion of the House to the unanimous con­clusion of the Attorney General's Com­mittee on Administrative Procedure. Itreads as follows-report. pages 62-63:

The indiVidual immediately concernedshould be apprised not only of the contem­plated action with sufficient precision to per­mit his preparation to resist. but. beforefinal action, he should be apprised of theevidence and contentions brought forwarda.gainst him 50 that he may meetthem. • •

A • • • prerequisit.e to fair formalprdbeedings is that when formal action isbegun. the parties should be fully apprisedof the subject-matter and issues involved.Notice, in short, must be given; and it mustfairly indicate what the respondent is to

meet. • • •Room remains for considerabie improve-

ment in the notice practices of many agen­cies. • • • Too frequently, this noticeis inadequate. • • • The applicant isput to his proof on such broad issues as pUb­lic interest, convenience, and necessi­ty. • • • Agencies not infrequently set

" out their allegations in' general form, per­haps in statutory terms thus failing fUllyto apprise the respondents and to permitthem adequately to prepare their defenses.

ADJuDiCATION PROCEDURE, SECTION 5 (B)

Subsection (b) of section 5 simply pro­vides that, apart from notice, partiesmust be afforded opportunity for thesettlement of cases in whole or in partand, to the extent that issues are not sosettled, by hearing and decision in com­pliance with the later provisions of thebill. There are of course cases wheretime, the nature of the proceeding, andthe public interest do not permit settle­ments; but those situations have beentaken care of on the face of the subsec­tion. The settlement by consent provi­sion is extremely important becauseagencies ought not engage informalproceedings where the parties are per­fectly willing to consent to judgments oradjust situations informally. Here againI shOUld like to quote the statement fromthe unanimous report of the AttorneyGeneral's Committee on Administrative

Procedure as follows-pages 35, 39, 40,41:

It is of the utmost importance to under­stand the large part played by informal pro­cedure in the administrative process. • • •

In cases of (claims and license applica­tions) formal proceedings in the first In­stance are undesirable from the point ofview of the individual and the Govern­ment. • • • Only after these applica­tions have passed through the sieve of in­itial decision-which in most cases satis-

. factorily ends the matter-is it necessary orpossible to have formal proceedings. • • •. In most cases in which a person appliesfor some official permission. the agency, ifsatisfled that the permission is proper, grantsit without any formal proceedings. Some­times the public interest in a full recordof the grounds of decision is thought so im­portant by Congress that formal proceedingsand a formal record are reqUired by law.• • • But there are other cases whereformai proceedings are required either bythe terms of the statute or by administra­tive interpretations in Which. in the com­mittee's opinion. something less would fullyprotect the public interest and make formore expediti01.jS dispatch of business. • • •

It often occurs that after an agency hasinvestigated a complaint filed with it. theperson or persons complained of and theagency may agree as to the principal eviden­tiary facts and may also agree that the actscomplained of should not be repeated, Afrequent obstacle to settlement· by consentis the reluctance of persons to make an ad­mission that they acted With an illegal orunethical intent or purpose. It is In thisarea that consent dispositions are employed,are highly desirable, and can be extendedby some improvement in procedures.

SEPARATION OF FUNCTIONS, SECTION S (C)

Subsection (c) of section 5 deals withthe well-known protlem of separatingprosecuting and deciding functions. Itprovides that the officer who takes theevidence must decide the case or recom­mend a decision unless he should becomeunavailable to the agency. Those officersmay not hold ex parte private confer­ences. They may not be subject to thesupervision of prosecuting officers, andprosecuting officers may not participatein decisions except as witnesses or coun­sel in public proceedings. However, thesubsection does not apply in determiningapplications for initial licenses, becauseit is felt that the determination of suchmatters is much like rule making andhence the parties will be better served ifthe proposed decision-later required bysection 8-refiects the views of the re­sponsible officers in the agencies whetheror not they have actually taken the evi~

dence. .It does not apply in cases con-­cerning the validity or application ofrates, facilities, or practices of publicutilities' or carriers because these type'sof cases are customarily consolidatedwith rule-making proceedings where theseparation of functions is not required sothat, unless excepted from this prOVision,either rwe making would be restrictedbeyond the intent of the bill or con­solldatedproceedings would be impos­sible. Also, the subsection does not ap­ply to the top agency or nrembersthere­of because from the very nature of ad­ministrative agencies, in which ultimateauthority is fixed in one place respectingboth prosecution and decision, it is im­possible to deprive heads of agenciesQf

5652 CONGRESSJONALRECORD~HQUSE MAY 24

authority over the prosecutors for whomthey are ultimately responsible.

Despite these exceptions, which haveseemed necessary at least until more isknown about the operation of an Admin­istrative Procedure Act, this section isof great importance because it is anattempt to deal with one of the criticalsectors of administrative operation. Itdoes not provide for a complete separa­tion of functions in the' sense that hear­ing officers are entirely and physicallyseparated from the agencies' in whichthey operate.. This bill adopts the "in­ternal" s~paration of functions and iIiaddition, as ] will point out when I cometo section 11, provides salary and tenureindependence for examiners even thoughthey may be selected by and attached toa particular agency. The problem isdiscussed at pages 55 to 57 of the finalreport of the Attorney General's Com­mittee on Administrative Procedure.This bill follows generally the recom­mendations of that commit!;ce, althoughby a somewhat di1Jerent route.DECLARATO~Y. ADJUDICATIONS, SECTION 5 (D)

The last subsection of section 5 author­izes agencies, in tl:eir sound discretion,to issue declaratory orders with the sameefiect as other orders. Since agenciesexercise judicial functions; it has beendeemed wise, for the benefit of the publicand people subject to administrativeadjudications, to confer upon themauthority by this subsection to do thesame things that courts do under theDeclaratory Judgment Act. In otherwords, administrative agencies should atleast be as :ree to act irrespective of thetechnical rules of case or controversy ascourts are. Indeed, without this provi­sion, in cases involving administrativepowers, there is a blind spot in our law­for parties can neither secure a declara­tory judgment from the courts nor adeclaratory order from the administra~

tive agency. Parties faced with a situa­tion in which they desire a declaratoryadjudication would under this provisionbe authorized to ask an agency to ruleupon the situation; and the ruling of theagency would be subject to judicial re­view and all other requirements as inother cases. Administrative authorityso to act has been widely urged. Thisprovision, however; narrows the author­ity to those cases in which 3gencies actupon a statutory hearing and subject tothe safeguards of sections 5, 6, 7, 8, 9,and 11 of this bill.

OTHER MATTERf', SECTION 6

Section 6, entitled "Ancillary Matters,"brings together a number of incidentalrights, powers, and procedures, includinglimitations on ~ompUlsory investigativepowers. These provisions are important,although they do not necessarily relatein all cases to either public information,rule making, or adjudication as dealtwith in the previous sections.APPEARANCES OR REPRESENTATION, SECTION 6 (AI

Section 6 (a) deals with the right ofparties to have the advice or representa­tion of counselor, to the extent thatagencies lawfully permit it, representa­tion by nonlawyers. The representationof counsel contemplated by the billmeans full representation as the term is

understood in the courts of law. Coun­sel may thus receive notices, decisions,and awards. Agencies are not author-

. ized in any manner to ignore (lr bypa~legal representatives that parties haveselected for themselves pursuant to thissection. The section also confers a stat­utory right for any interested person toappear before any agency or its respon­sible officers at any time for the presenta­tion or adjustment of any matter, alldthis is particularly important as-amongother things-authorizing the settlementof cases in whole or part. It also requiresagencies to proceed with reasonable dis­patch.

INVESTIGATIONS, SECTION 6 (BI

The second subsection of section 6 lim­its any form of investigative process toauthority conferred upon an agency bylaw. This limitation will require anyagency to justify its process in case of acontest thereof by demonstrating thatupon the law and the facts it is actingwithin its proper sphere of. operations.The subsection also provides that those;compelled to submit data or. evidenceshall .either be entitled to copies thereofor, in cases in which the situation clearlydemlmds that no copies be made, to in­spect them in person or through counsel.

SUBPENAS, SECTION 6 leI

Subsection (c) of section 6 providesthat, where Congress has authorizedagencies to issue subpenas, privateparties may secure them upon an equal­ity with Government representatives andwithout any more than a general show­ing of relevance and reasonable scope ofthe information sought. Where admin­istrative subpenas are contested, thecourt is to inquire into the situation andissue an order of enforcement only se. faras the subpena ~s found to be in accord­ance with law. This is a definite statu­tory right and Is applicable to subpenasof every kind addressed tc, any personunder authority of any law. The efiectof the subsection is thus ~o do more thanmerely restate the existing constitutionalsafeguards which in some cases, such asthose involving public contractors-seeEndicott Johnson Corp. v. Perkins (317,U. S. 501,507,509,510 (1943», have beenheld inapplicable. Also, the term "inaccordance with law" does not mean thata subpena is valid merely because issuedwith due formaEty. It means that thelegal situation, inclUding the necessaryfacts, demonstrates that the persons andsubject matter to which the subpena isdirected are within the jurisdiction ofthe agency which has issued the sub­pena.

DENIAL OF REQUESTS, SECTION 6 (Dl

The final subsection of section 6 re­quires agencies to give prompt notice ofthe denial of any request made in anyagency proceeding, and to accompanythat notice with a simple statement ofthe procedural or other grounds for theaction of the agency. Under this pro­vision, If the ground is procedural, theagency would be required to state anyavailable further or alternative remediesopen to the party. If the ground is notprocedural, the agency woulci be requiredto make a simple statement of the legalor factual basis of its action.

HRARINGS, SECTION 7

It •will be recllJIed that section 4-re­latipg tor!Jle lllaking-and' section' 5­relating to the determination of particu­lar cases-refer to situations in whichCongress has by some other statute re­quired an agency to act upon a hearing..Accordingly sections 7 and 8, which I amabout to discuss, state the reqUisites ofstatutory agency hearings and decisions.

PRESIDING OFFICERS, SECTION 7 (AI

The first subsection of section 7 re­quires an agency to hold hearings itself,or through a member or members of theboard which comprises it, or by one or

'l1lore examiners qualified as provided insection 11 of the bill, or through otherofficers specially provided for or desig­nated purs\1ant to the authority containedin other statutes. Whoever presides mustdo so impartialIy. They may withdrawif they deem themselves disqualified or, ifan affidavit of personal bias or disqualifi­cation is filed against them, the agencymust determine the issue as a part of therecord and decision in. the case.

This provision authorizes agencies, ifthey do not wish to hear cases them­selves, to delegate the hearing function tothe named types of presiding officers. Itdoes not mean, however, that .agenciesate authorized-whether pursuant to theexpress authority of other statutes ornot-to avoid the examiner system-setup in this bill and hereafter discussed­by assigning general employees or attor­neys to hear cases individually or asboards. In short, unless the agency orits members or some specially qualifiedstatutory officer hears the case, an ex­aminer qualified under section 11 of thisbill must do so.. Of particular importance in this subsec­tion is the requirement that any presid­ing officer must act impartially ratherthan as a prosecutor. These provisionsmean that presiding officers will be re­quired to conduct themselves in the man­ner in which people think they should­that is, as judges and not as the repre':'sentatives of factions or special interests.

HEARING POWERS, SECTION 7 (B)

Subsection (b) of section 7 lists thecommonly accepted kinds of powers whichIt is generally conceded that officers whopreside at hearings ought to have. Theseinclude administering oaths, issuing au­thorized subpenas, receiving or exoCludingeVidence, taking depositions, generallyregulating the hearing, holding informalconferences with the parties for the set­tlement or simplification of issues, dis­posing of procedural requests such asthose for adjournment, and the like. Inexercising these powers, of course, pre­siding officers will be bound by relevantlegal limitations.

EVIDENCE, SECTION 7 IC)

'Subsection (c) of section 7 is one ofthe more important provisions of the bill.In its final report the Attcrney General'sCommittee on Administrative Procedurestatec1 that-pages 70-71:

Although administrative' agencies may befreed from observance of strict common-lawrules of evidence for jury trials, It is errone­ous to suppose that agencies do not, as a re­SUlt, observe some rules of eVidence. • • •Abuses in admitting remote hearsay and

1946 CONGRESSIONAL RECORD-HOUSE 5653irrelevant or unreliable evIdence there surelyhave been. • • • That strIct adherenceto standards of relevance and probative valueshould be observed needs no underscorIng.A dUfuse record dissipates the energIes of theparties and the deciding authorIties and dis­tracts attention from the issues. Carelessadmission of evIdence for what It Is wortb­a practice not Infrequent among trial exam­iners-swells the record beyond its necessarylimits. •

Section 7 (c) of this bill provides thatthe proponent of a rule or order has theburden of proof except as statutes other­wise provide. It authorizes agencies toreceive any evidence, although as a mat­ter of policy they are required to providefor the exclusion of irrelevant, immate­rial, or unduly repetitious matter. Thus,the mere fact that such matter is in therecord would not of itself be reversibleerror. The principal provision of thesubsection provides that no sanction maybe imposed or rule or order be issuedexcept upon consideration of the wholerecord or such portions as any party maycite f1,nd as supported by and in accord­ance with reliable, probative, and sub­stantial evidence. The parties are au­thorized to present documentary, oral,and rebuttal evidence and to conductreasonable cross-examination. In rulemaking or determining applications forinitial licenses agencies may adopt pro­cedures for the submission of the evi­dence in written form, so far as the in~

terest of any party will not be prejudicedthereby.

The requirement that agencies mayact only upon relevant, probative, andsubstantial evidence means that the ac­cepted standards of proof, as distin­guished from the mere admissibility ofevidence, are to govern. in administrativeproceedings as they do in courts of lawand equity. The same provision con­tains two other limitations-first, thatthe agency must examine and considerthe whole of the evidence relevant to anyissue and, secondly, that it must decidein accordance with the evidence. Undertl:;lese provisions the function of an ad­ministrative agency is clearly not to de­cide arbitrarily or to act contrary to theevidence or upon surmise or suspicion oruntenable infer~nce. Mere u~corrobo­

rated hearsay or rumor does not consti­tute substantial evidence-see Edison Co.v. Labor Board (305 U. S. 197,230>' Un­der this provision agencies are not au­thorized to decide in accordance withpreconceived ideas or merely to sustainor vindicate prior administrative action.but they must enter upon a bona fideconsideration of the record with a view toreaching a just decision uPOn the wholeof it.

RECORD. SECTION 7 (DI

The final subsection of section 7 pro­vides that the record of the evidencetaken and the papers filed is exclusive forpurposes of decision. It also providesthat, where a decision rests in whole orpart on 01licial notice of a material factnot appearing in the record. any partymust on timely request be given an ade­quate opportunity to show the true facts.

Both of these provisions are important.The exclusiveness of the record precludesdeciding 01licers from basing their judg­ments as to the facts upon matters whichare not in the record. The provision re-

specting official notice is essential inorder to prevent miscarriages of justicethrough mistake or by unwarranted ex­pansion of the idea of judicial notice.

DECISIONS, SECl'lON 8

Section 8 applies only in cases in whichother statutes require a hearing and inwhich section 7 applies as to the conductof the hearing. Next to the matter ofevidence, which I have discussed in con­nection with section 7 (c), the mannerand method in which agencies arrive atdecisions have been one of the mostcriticized parts of the field of adminis­trative law. With respect to this problemthe final report of the Attorney General'sCommittee on Administrative Procedurehad the following to say-pages 44-46:

In most of the agencies the person whopresides is an adviser With no real power todecide. • • • He may simply be a moni­tor at the hearing with power to keep orderand supervise the recording of testimony butlittle or none to make rulings or to play areal part in the final decision of tbecase. • • • There should be general im­provement in administrative procedure atthis stage. • •.• The committee • • •has been impressed with the fact that as theconduct of the hearing becomes divorced fromresponsibility for decision two undesirableconsequences ensue. The hearing itself de­generates, and tbe decision becomes anony­mous. • • •

If the heartng officer Is not to play an im­portant part in the decision of the case, otherpersons must. The agency heads cannot readthe voluminous records and winnow out theessence of them. Consequentiy this taskmust be delegated to subordinates. Compe­tent as these anonymous reviewers or memo­randum writers may be, tbeir entrance makesfor loss of confidence. Parties have a sounddesire to make their arguments and presenttheir evidence, not to a monitor, but to theofficer who must in the first instance decideor Iecommend the decision. In many agen­cies attorneys rarely exercise the privilege ofargUing to the hearing officer. They have noopportunity to argue to the record analystsand reviewers who have not heard the evi­dence but whose summaries may stronglyaffect the final result.

The provisions of section 8 are de­signed to make it certain that those whosign decisions or decision papers are actu­ally the people responsible for them, thatthe evidence and the arguments of theprivate parties are fully and fairly con­sidered, that the views of agency per­sonnel are not unduly emphasized orsecretly submitted, and that the 01licialrecord alone is the basis of decision.

DECISIONS BY SUBORDINATES. SECI'ION 8 (AI

Section 8 (a) requires that, in adjudi­cation cases subject to Section 5 (C), theo1licer or officers who presided at the tak­ing of evidence must either decide thecase or recommend a decision-thechoice being left to the agency. Sincesection 5 (c) provides for the separationof functions only in certain cases of adju­dications. this provision would not beoperative in the excepted cases or in rulemaking. Its purpose is to make thehearing officer in the covered situationsan important factor in the decision proc­ess. Where the officer or 01licers whopresided at the hearing are not requiIedto make or participate in the decisionunder this provision, some other o1liceror 01licers who are qualified to preside athearings must do so. Where such 01licers

make the decision, it becomes the finaldecision of the agency in the absence ofan appeal to or review by the agency.If the agency itself makes the initial de­cision without having presided at the re­ception of the evidence, the officers whopresided or who are qualified to presidemust recommend a decision. Thus therecommended decision, which becomes apart of the record, bridges the gap be­tween the hearing and deciding functionin administrative cases. In rule makingor determining applications for initialli­censes, however, the subsection providesthat the agency may issue a tentative de­cision. any of its responsible officers mayrecommend a decision, or such proceduremay be wholly omitted where the execu­tion of agency functions make it im­possible.

SUBMITTALS AND DECISIONS, SECTION 8 (B)

The second subsection of section 8 is astatutory statement of the right of theparties to submit for the full considera­tion of the presiding 01licers, first, pro­posed findings and conclusions or, second,exceptions to recommended decisions orother decisions being appealed or re­viewed administratively and third, sup­porting reasons for such findings, con­clusions, or exccptions. The record mustshow the o1licial rulings of the agencyupon each such finding. conclusion, orexception presented. These provisionsassure all parties an opportunity to pre­sent their views of the law and the factsand be heard thereon prior to the de­cision of any case. So that the partiesand the reviewing courts may be fullyapprised, all recommended or other de­cisions must include first, findings andconclusions, as well as the reasons orbasis therefor, upon all the issues of fact,law, or discretion presented by the rec­ord and, second, the appropriate agencyaction or denial.

The purpose and effect of these pro­visions are clear upon the face of the sec­tion: One matter should be emphasized.Section 8 (b) requires findings and con­clusions to be stated upon all the mate­rial issues of fact whictl the parties maypresent. This means that, within thelegal framework of the type of case in­volved, the number and the subjects ofthe findings and conclusions will be de­termined by the record and by the legal.factual, or discretion issues raised by theparties. The mere parroting of findingsor conclusions in the words of statutes,however sufficient that may be as an ulti­mate conclusion. definitely would not sat­isfy in any manner the requirements ofthis section unless both the statute andthe issue were very narrow indeed. Al­most any case of consequence involvesnumerous and detailed issues of law, fact,and discretion. These must all be de­termined as a part of the decision. Onlyin that manner are the parties protectedand assured that the case has been fullyand completely considered and deter­mined.

SANCTIONS AND POWEllS. SECTION S

Section 9, relating to agency sanctionsand powers, applies in all cases. whetheror not a statutory hearing is required. Itdoes not dispense with hearings other­wise required, nor does it supply them itnot so required. It deals with the lar~s

5654 CONGRESSIONAL RECORD-HOUSE MAY 24

and troublesome problem of th~ remediesor redress which administrative agenciesare entitled to undertake or grant.

GENERAL LIMITATIONS, SECTION 9 (A)

The first and principal provision of thesection simply requires that no sanctionshall be imposed or substantive rule ororder be issued except within jurisdictiondelegated to the agency and as author­ized by law. This provIsion is framedon the necessary assumption that thedetailed specification of powers. must beleft to other legislation relating to spe­cific agencies. Its effect is to confineagencies to the jurisdiction and powersso conferred. That means _not only thelegal bl:t the factual jurisdiction of anagency, and the legal and factual ap­propriateness of any sanction or reliefit may assume to impose or grant. Thebasic premise of the section, if I may re­peat, is that agencies are not authorizedto invent sanctions or relief or to attemptto apply or grant them beyond the limita­tions of authority within which they op­erate.

LICENSES, SECTION 9 (D)

Section 9 (b) deals with licensing. Itrequires agencies to determine prompt­ly all applications _for licenses, prohibitsthem from withdrawing a license withoutfirst giving the licensee notice and anopportunity to achieve compliance except'in cases of obvious willfulness or emer­gency, and in businesses of a continuingnature precludes. any license from expir­ing until timely- applications for newlicenses or renewals have been deter­mined.

These special provisions are necessarybecause of the very severe consequencesof the conferring of licensing authorityupon administrative agencies. The bur­den is upon private parties to apply forlicenses or renewals. If agencies are dila­tory in either kind of application, partiesare subjected to irreparable injuries un­less safeguards are prOVided. The pur­pose of this section is to remove the threatof disastrous, arbitrary, and irremediableadministrative action.

JUDICIAL REVIEW, SECTION 10

Section 10 is a comprehensive state­ment of the right, mechanics, and scopeof judicial review. It requires an effec­tive, just, and complete determinationof every case and every relevant issue.It is a means of enforcing all forms oflaw and ,11 types of legal limitations.Every form of statutory rig-ht or limita­tion would thus be subject to judicialreview under the bill. It would not belimited to constitutional rights or limi­tations alone-see Perkins v. Lukens SteelCo. (310 U. S. 113>' I

Two general exceptions are made inthe introductory clause of section 10.The first exempts all matters so far asstatutes preclude judicial review. Con­gress has rarely done so. Legislative in­tent to forbid judicial review must be,if not specific and in terms, at least clear.convincing. and unmistakable under thisbill. The mere fact that Congress hasnot expressly prOVided for judicial reviewwould be completely Immaterial-seeStark v. Wickard (321 U. S. 288 at p. 317).

The second general -limitation -on the­section is that there are exempted mat­ters to the extent that they are by lawcommitted to the absolute discretion ofadministrative agencies. There havebeen much misunderstanding jl,nd con­fusion of terms respecting the discre­tion of agencies. They do not have au­thority in'any case to act blindly or arbi­trarily. They may not willfully act orrefuse to act. Although like trial courtsthey may determine facts In the first in­stance and determine confiicting evi­dence, they cannot act in disregard of orcontrary to the evidence or without evi­dence. They may not take amrmativeor negative action without the factualbasis required by the laws under whichthey- are proceeding. Of courst:, theymay not proceed in disregard of the Con­stitution, statutes, or other limitationsrecognized by law.

RIGHT OF REVIEW, SECTION 10 (A)

The first sUbsection of section 10 pro­vides that any person suffering legalwrong because of any agency action, oradversely affected within the meaning ofany statute, is entitled to judicial review.Legal wrong means action or inaction inviolation of the law or the facts. Thecategories of questions of legal wrong areset forth later as subsection (e) of section10.

FORMS OF REVIEW ACTIONS, SECTION 10 (D)

Under this bill the technical form ofproceeding for jUdicial review is, first,any special proceeding which Congresshas provided or, in the absence or inade­quacy thereof, any relevant form of ac­tion such as those for declaratory judg­ments or injunctions in any court ofcompetent jurisdiction. In addition. anyagency acti6n is_ also subject to judicialreview in any civil or criminal enforce­ment proceeding except to the extentthat prior, adequate, and exclusive op­portunity for such review is otherwiseprovided by law.

These provisions summarize the situa­tion as it is now generally understood.The section does not disturb special pro­ceedings whiCh Congress has provided,nor does it disturb the venue arrange­ments under eXisting law. It does, how­ever, constitute a statutory adoption oftradition-al forms of action in cases whereCongress has made no contrary provisionfor jUdicial revie,:w.

REVIEWABLE ACTS, SECTION 10 (C)

In any proceeding for jUdicial review,the parties who seek it must specify whatit is they wish reviewed and what it isthey claim to be reviewable. Accordingly,section 10 (c) provides that specific actswhich are either expressly made review­able by legislation or for which there isno other adequate judicial remedy aresubject to review under section 10 of thisbill. Preliminary or procedural mattersnot so reviewable may be reviewed in con­nection with final actions. An act is finalwhether or not there has been presentedor determined an application for anyform of reconsideration. unless statutesotherwise expressly require.

The provisiQns of this section are tech­nical but involve no departure from the

usual and well understood rUles of pro­cedure in this field.

TEMPORARY RELIEF, SECTION 10 (D)

Of importance in the field of judicialreview is the authority of courts to granttemporary relief pending final decisionof the merits of a judicial-review action.Accordingly section 10 (dl "rovides thatany agency may itself postpone the effec­tive date of its action pending judicialreview or, upon conditions and as maybe necessary to prevent irreparable in­jury, reviewing courts may postpone theeffective date of contested action or pre,:serve the status quo pending conclusionof judicial-review proceedings.

The section is a definite statutorystatement and extension of rights pend­ing judicial review. It thus, so far asnecessary, amends st,atutes conferringexclusive authority upon administrativeagencies to take or withhold action. Itsoperation wnJ. involve no- radical depar­tures from what has generally been re­garded as an essential and inherent rightof the courts: but., however that may be.this provision confers full authority tocourts to protect the review process andpurpose otherwise expressed in section 10.

SCOPE OF REVIEW, SECTION 10 (E)

The final subsection of section 10 statesthe extent or degree of review whichcourts are required to afford under thisbill. I have already referred to the ex­emptior of situations in which Congresshas specifically withheld review or inwhich action has by law been committedto the absolute discretion of administra­tive agencies.

Subsection (e) of section 10 requirescourts to determine independently allrelevant questions of law, including theinterpretation of constitutional or statu­tory provisions and the determination ofthe meaning or applicability of anyagency action. They must compel actionunlawfully withheld or unreasonably de­layed. They mus~ hold unlawful any ac­tion, findings, or conclusions which theyfind to be, first, arbitrary or in abuse ofdiscretion: second, contrary to any pro­vision of the Constitution; third, in vio­lation of statutes or statutory rights;fourth, without observance of procedurerequired by law: -fifth, unsupported bysubstantial evidence in any case reviewedupon the record of an ~gency hearingprovided by statute; or, sixth, unwar­ranted by the facts so far as the latterare subject to trial de novo. In makingthese determinations the court is to con­siller the whole record or such parts asany party may cite and, where error hasbeen fully cured prior to the effectivedate of agency action, the courts mayapply the ql1e respecting nonprejudicialerror.

The term "substantial evidence" asused in this bill means evidence which onthe whole record as reviewed by the courtand in the exercise of the independentjudgment of the reviewing court is ma­terial to the issues, clearly sUbstantial.and plainly sumcient to support a findingor conclusion aflirmative or negative inform under the requirements of section7 (c) heretofore discussed. Under this

1946 CONGRESSIONAL RECORD-HOUSE 5655section the function of the courts is notmerely to search the record to seewhether it is barren of any evidence, orlacking any vestige of reliable and pro­bative evidence, or supports the agencyaction by a scintilla or by mere hearsa,y,rumor, suspicion, speculation, and in­ference-cf. Edison Co. v. Labor Board(305 U. S. 197, 229-230). Under this billit will not be slifficient for the court tofind, as the late Chief Justice Stotle

_ pointed out within the year, merely thatthere is some "tenuous support of evi­dence"-Bridges v. Wixon (326 U. S. at178) . Nor may the bill be construed aspermitting courts to accept the judg­ments of agencies upon unbelievable orincredible evidence.

Where there is no statutory admin­istrative hearing to which review is con­fined, the facts pertinent to any relevantquestion of law must, of course, be triedand determined de novo by the reviewingcourt.

Whether a court is proceeding upon anadministrative or a judicial record, therequirement of review upon the wholerecord means that courts may not lookonly to the case presented by one of theparties but must decide upon all of theproofs sUbmitted.

EXAMINERS, SECTION 11

One of the most controversial pro­posals in the field of administrative lawrelates to the status and independenceof examiners who hear cases where agen­cies themselves or members of boardscannot do so. I have heretofore referredto this problem in my discussion of sec­tion 8 respecting decisions. Both sec­tions 7 and 8· authorize the use of ex­amIners. Section 11, which I am aboutto discuss, provides for their selection.tenure, and compensation.

It is often proposed that examinersshould be entirely independent of agen­cies. even to the extent of being sepa­ratelyappointed, housed, and supervised.At the other extreme there is a demandthat examiners be selected from agencYemployees and function merely as clerks.In framing this bill we have rejected thelatter View. as the Attorney General'scommittee on administrative procedurethroughout the greater part· of its finalreport rejected it, and have made some­what different provision for independ­ence. Section 11 recognizes that agen­cies have a proper part to play in theselection of examiners in order to securepersonnel of the requisite qualications.However. once selected, under this billthe examiners are made independent intenure and compensation by utilizingand strengthening the existing machin­ery of the Civil Service Commission.

.Accordingly, section 11 requires agen­cies to appoint the necessary examinersunder the civil serVice and other laws notinconsistent with the bill. But they areremova.ble only for good cause deter­mined by the Civil Service Commissionafter a hearing, upon the record thereof,and subject to judicial review. Moreover,their compensation is to be prescribedand adjusted only by the Civil ServiceCommission aettrigupdn its independentjudgment. The Commission is given the

necessary powers to. operate under thissection, and it may authorize agencies toborrow examiners. from one another.

If there be any criticism of the opera­tion of the civil-service system, it is thatthe tenure security of civil service per­sonnel is exaggerated. However,it is pre­cisely that full and complete tenure se­curity which is widely sought for subor­dinate administrative hearing and de­ciding officers. Section 11 thus makesuse of past experience and existing ma­chinery for the purpose.

CONSTRUCTION AND EFFECT, SECTIO.'il 12

The final section of the bill providesthat nothing in it is to diminish consti­tutional or other legal rights, that re.qUirementsof evidence and procedureare to app~y equally to agencies and pri­vate persons, that the unconstitution­ality of any portion or application of thebill shall be subject to the usual savingprovision, and that subsequent legisla­tion is not to be deemed to modify thebill except as it may do so expressly.

The final sentence provides that thebill shall become law 3 months after itsapproval, except that sections 7 and 8respecting statutory hearings and deci­sions shall not take effect until 6 monthsafter its approval, the reqUirements ofsection 11 respecting the selection of ex­aminers are not to become effective for ayear, and no requirement of the bill ismandatory as to any agency proceedinginitiated prior to the effective date ofsuch requirement.

The staggered effective date prOVisionhas been thought necessary in order togive administrative agencies every op­portunity to prepare fully.

v. CONCLUSION

This measure is the culmination oflong and earnest consideration. It re­sponds to a widespread, deep-seated, andinsistent public demand for some atten­tion to the problem of administrativejustice and administrative operations. Ithas been drafted' with the greatest ofcare and upon fulsome consideration ofviews from every side. It is not, ofcourse, the final Word, but it is a goodbeginning.

Mr. HANCOCK. Mr. Chairman, Iyield myself 5 minutes.

Mr. Chairman, the two gentlemen whoare best able to answer your questionsand describe the bill are the gentlemanfrom Pennsylvania [Mr. WALTERl,chair­man of the subcommittee which hasstudied this bill for years and brings itto us today, and the ranking minoritymember on that committee, the gentle­man from Iowa [Mr. GWYNNE] .. As faras I know, there is no opposition to thebill on this side of the aisle, althoughthere are many of us who would like tohave it stronger. Nevertheless. I thinkwe are all prepared to gO along with itbecause we feel it is the first importantstep in the direction of dividing investi­gatory. regulatory, administrative, andjUdicial functions in Governmentagencies.

I have long favored reform of admin­istrative procedure. legiSlation whichWQuld·protect individua.l citizens against

the abuses of delegated power, legisla­tion which would separate the functionsof investigator, prosecutor, judge, jury.and executioner. This problem has re­ceived a considerable amount of studyover the last 10 years. The members ofthe Judiciary Committees of the Houseand of the Senate have given it a greatdeal of time and attention and extensivehearings have been held. The bar asso­ciations of the country, the Departmentof Justice, and prominent lawyers every­where have studied it and recommendedremedial legislation since 1935. Manybills have been introduced to accom­plish this purpose, and at least one waspassed, the Walter-Logan bill, 6 or 7years ago. It was vetoed by PresidentRoosevelt on the ground that furtherstUdY was required. This legislation hasreceived further study and the bill be­fore us is the result of it. No one claimsit is a perfect bill. If weaknesses de­velop, as they may with experience, theCongress can pass legislation to correctthose weaknesses. I hope the bill will bepassed as presented by the JudiciaryCommittee. It has already been passedby the Senate. and it has the endorse­ment of the Attorney General, which isassurance that it will be signed by thePresident. '

Just let me say this, which has alreadYbeen mentioned: I regard the reportwhich accompanies this bill as the mostcomplete and scholarly report that hasever accompanied any bill to 'come beforeus in my time. It is a valuable legaldocument,. and I advise you to retain itin your files for future reference.

No one has been more active in seekingto correct injusti·ces of administrativelaw and procedure than the able gentle­man from Pennsylvania [Mr~ WALTER],It now appears that his efforts of many

. years will culminate in success today, andI congratulate him.

Mr. Chairman. I yield 10 minutes tothe gentleman from Iowa [Mr. GWYNNE],

Mr. GWYNNE of Iowa. Mr. Chair­man, I have often thought that privatemonopoly and Government bureaucracycannot exist long in a country and.have the country remain free. The pur­pose of this bill is to make a start at leastalong the road that we must travel toregulate the many bureaus and tribunalsthat are now operating in the executivebranch of the Government.

Some of you who have been very muchinterested in this subject over the yearsmay read this bill with a certain amount

. of disappointment. You will regret thatthe bilI does not go further. I am frankto say that I have those same feelingsmyself. Nevertheless, I should like topoint out to the membership that thisbill has been passed by the Senate. Ifit is passed in the House with the amend­ments the House committee has recom­mended it will undoubtedly become thelaw. It will become the much neededstart ll,long the road I am so anxious tohave us travel. I hOpe. therefore, we willpass this bill unanimously and withoutamendment.

Furthermore. as has been pointed outby the gentleman from Texas (Mr. SlJJ/1­mRsl. the chairman of the committee,

5656 CONGRESSIONAL RECORB.....,HOUSE MAY 24we are legislating in a new field. I thinkit is the part of wisdom not to go as farperhaps as some of us would like, but togo carefullY,note mistakes and profit bythem.

.All I intend to do, Mr. Chairman, is tomake a rather brief statement of what isin the bill.

Mr. GRANGER. Mr. Chairman, willthe gentleman yield?

Mr. GWYNNE of Iowa. I yield.Mr. GRANGER. There are a number

of us in Congress, of course, who are notlawyers. This bill I suppose is fullyunderstood by those who are membersof the legal profession. As I understoodthe purpose of the bill~I was somewhatconfused by the gentleman's statementthat.it was to regulate bureaus-my im­pression was that it was simply a bill tomake uniform rules promulgated by thebureaus and practice before the variousboards and commissions of the country.Is not that generally what it is supposedto do?

Mr. GWYNNE of Iowa. No; I wouldnot say that was all of it. It does notas a matter of fact make uniform prac­tice before bureaus and. tribunals. Itrequires these agencies of Governmentin their practice to maintain certainminimum standards. It is an attempt'to bring into the practice of thesebureaus and tribunals those principlesofd,ue process that we understand and thathave been enforced in the courts. If Imay proceed for:. a few minutes I believeI will make these. things clear as I goalong. I really wish to touch the bill alittle. I will yield later if I have time.

After a law has been passed by theCongress, before it applies to the indi­·vidual citizen there are about three stepSthat must be taken First, the bureauhaVing charge of enforcement must writerules and regulations to amplify. inter-·pret, or expand the statute that we

.passed; rUle making, we c:tll it. Second,there must be some procedure wherebythe indiVidual citizen who has some con­tact with the law can be brought beforethe bureau and his case adjudicated.You might refer to that as adjudicationor hearing. Finally. there must be someprocedure whereby the individual mayappeal to the courts from the actiontaken by the bureau. This bill brieflytouches all three.

In the matter of rule making the billprovides, for instance, this in substance:It requires the agency to give notice ofits intention to make rules and regula­tions. It requires the agency to allowinterested parties to appear and statetheir views and request that certain rulesand regulations be adopted. That wouldbe much like the hearings that we nowhave before our committees in the House.Incidentally, that practice is now beingfollowed by certain agencies of the Gov­ernment. Then it requires that theserules or regulations which have the ef­.fect of law must be published in the Fed­eral Register and go into effect at somefuture date. That is stating it verybriefiy but that is the substance of whatis required on the important subject of.rule making.

Then we come to the question of ad­judication. How is an individual Whoviolates, or let us say who wishes some

action under, these rules and regulations,how is his case to be disposed of? Onthat point I think there is some differ­ence between the present· bill and theWalter-Logan bill. This. bill .is not asdefinite in its requirements.· It laysdown certain minimum standards whichmust be observed by the bureau· or tri­bunal.

The bill provides that the agency mustgive notice to the indiVidual of the hear­ing, also of the ~ime and place. much thesame as notice is given now in civilsuits. The person affected may appearby lawyer or by some one who is not alawyer. if that practice is allowed in thatparticular agency. Hearings may be hadbefore the agency sitting together or byany member or members of the agencyor, finally, by hearing examiners. whichis probably usually the case.

The trial proceeds much after thefashion of a hearing before industrialcommissions or boards who have chargeof the administration of the workmen'scompensation in various States. Therules of evidence are not restricted tothose matters of competency that we en­force in court; nevertheless an attemptis made in the bill to require the pre­siding judge. so to speak, to confine thecase at issue to relevant aDd probativetestimony.

An important feature of the bill in thisconnection has to do with the appoint­ment of examiners and· there is a pro-'vision to keep the deciding functionsseparate and distinct from the prosecu­tion part of it. Great complaint hasbeen made that agencies send out peopleto prosecute the individual and. fromthe same offlce and subject to the samedirection. they send out the hearing ex­aminer who is to hear. the case. Thisprovides for separation of these func­tions and prohibits one from meddlingwith the other.

It also provides that these hearingexaminers shall be appOinted by theagency in accordance With civil-servicerUles. The salaries of the examiners arefixed by the Civil Service Commissionand promotions and increases in salariesare also fixed by that Commission.

It is hoped to at least make a start.although I think it does not go as faras it shOUld, in arriving eventually at acomplete separation between the decid­ing functions and the prosecutingfunctiOnS.

The only other and remaining featureI would like to mention has to do Withappeals. then I· shall be glad to yield.The great difflculty with our present set­up is that many of these agencies arenot subject to court review and many ofthem even if we pass this bill will stillnot be subject to court review. Thisbill does not give a court review in anycase where review is now precluded bystatute. It simply clarifies and expandsin some particUlars the authority of thecourt in reviewing cases in which courtreview is not preclUded by law. In gen­eral they can reverse or modify the judg­ment on these grounds:

First. If the finding is contrary to someprovision of the Constitution;

Second. If the tribunal or agency hasfailed to follow the procedure providedby law;

Third. If the decision is arbitrary orcapricious; and-Finally, and very important, if the

1lI1ding of the agency is not supported· bysubstantial evidence.- Mr. Chairman, a lot can be said aboutthis bill; but I will not proceed any fur­ther because I want to yield.

The CHAIRMAN. The time of thegentleman from Iowa has expired.

Mr. HANCOCK. ~. Chairman. Iyield the gentleman .three more minutes., Mr. MURDOCK. Mr. Chairman, willthe gentleman Yield? -

Mr. GWYNNE of Iowa. I yield to thegentleman from Arizona.

Mr. MURDOCK. I want to say to thegentleman that I, have received numer­ous communications from bar associa­tions and legal authorities in my Statesilpporting this bill and calling on me tosupport it. Not "eing a lawyer, I am gladto have the gentleman's clear-cut state­ment. HQwever, in addition to that,what I would like to know is this: Hasthe machinery set up been such as tocause delay in the working out of justicefor the citizen in review procedure andthat sort of thing?

Mr. GWYNNE of Iowa. Does the gen­tleman mean the pre:;;ent procedure?

'Mr. MURDOCK. No; I am inquiringabout the machinery set up in this bill.

Mr. GWYNNE of Iowa. Oh. I wouldsay not. I would say it certainly shouldnot cause delay. It should expeaite pro­ceedings. if anything.

Mr. VOORHIS of California. Mr.Chairman, will the gentleman yield?

Mr. GWYNNE of Iowa. I yield to thegentleman from California.

Mr. VOORHIS of California. On thematter of court review. I wanted to askthe gentleman whether the bill will orwill not make a change in the situationwhich now pertains as to certain agen­cies where, if the position of that agencyis supported by any degree of reasonableevidence," the court must not go beyondthat decision? Does not the bill givethe court somewhat broader powers fromthat point of view than it would haveotherwise?

Mr. GWYNNE of Iowa. Right.Mr. VOORHIS of California. Would

the gentleman expand on that a littlebit? I think. it is very important.

Mr. GWYNNE of Iowa. I might sayrather briefiy that there are two conflict.ing theories that have often beer. ex­pounded by the courts. One is that ifthe verdict of the jury or if the findingof the triers of fact is sustained by ascintilla of evidence,. any evidene:e. nomatter how lacking 10 probative force,the court must sustain it. The other isthat the court need not sustain a findingunless it is supported by substantial evi­dence. The latter is the view adoptedin this bill.

Mr. VOORHIS of California. That isa change from the practice that is now

_in effect in regard to some agencies. isit not?

Mr. GWYNNE of Iowa. That is cor­rect.

Mr. SPRINGER. Mr. Chairman, willthe gentleman yield?

Mr. GWYNNE of Iowa: I yield to thegentleman from Indiana.

1946 CONGRESSIONAL RECORD-HODSE 5657Mr. SPRINOER. On the question Mr. HANCOCK. Even though con-

which has just been raised by the gentle- trary to the preponderance of the evi­man from California, there have fol- dence.lowed, in the procedure under the pres- Mr. SPRINGER. Yes, as the distin­ent rules findings even where the evi- guished gentleman from New York says,dence was not' competent; where there that has been done in many cases evenwas no evidence at all. The finding though it is contrary to the preponder­might be made without regard to ance of the evidence introduced at thewhether or not that evidence was actual- hearing.ly competent to get into the case; is that May I say further on this particularnot correct? • point that in many instances the eVi-

Mr. GWYNNE of Iowa. That happens dence upon which a decision has beenunder the present set-up, yes, unfor- predicated has not been competent evi-tunately. dence.

Mr. VOORHIS of California. But it The bill pending before this commit-can happen under the bill? tee, and which I hope will be passed with-

Mr. GWYNNE of Iowa. This bill does out a dissenting vote, provides for ju­not concern itself with competent evi- dicial review in certain instances, and itdence particularly, but it does give to takes up the scope of the review. It is tothe court the duty to set aside findings that particular feature that I desire toif not supported by !1ubstantial evi- address the few comments I have todence. make upon this measure.

The CHAIRMAN. The time of the Page 39 of the bill provides that undergentleman from Iowa has expired. this law the reviewing courts "shall com-

Mr. HANCOCK. Mr. Chairman, I pel agency action unlawfUllY withheld oryield 10 minutes to the gentleman from unreasonably delayed."Indiana [Mr, SPRINGER], In many of those cases there has been

Mr. SPRINGER. Mr. Chairman, as a withholding or a long delaY, and thathas been stated during this debate, this particUlar feature is intended to hastenmeasure which is now pending before the action on the part of these agencies. IHouse is a very important measure as it feel confident each Member will approveappears to me. I might state that this that provision in this bill.bill, S, 7, was ps.ssedon March 12, 1946. The second provision. to which I nowby the Senate and it then carne to the refer, provides "and hold unlawful andHouse and it has been given very careful set aside agency action, findings, andconsideration since that time. conclusions found to be arbitrary, capri-

May I say that' the distinguished gen- clous, an abuse of discretion, or other­tleman from Pennsylvania [Mr.WALTER], wise not in accordance with law,"together with the ranking minority To my mind, that is .a most potentMember the gentleman from Iowa [Mr. statement and is' a fair and eqUitableGWYNNE], have given much attention provision of the bill.and have spent much time on this par- Mr. SCRIVNER. Mr. Chairman, will

the gentleman yield?ticular legislation. I wish to compliment Mr. SPRINGER. I am happy to yieldeach of those gentlemen for the fine serv- to my friend from Kansas;ice they have rendered to the country Mr. SCRIVNER. Does the gentlemanand to the people in the presentation of feel that that would correct the evils thatthis measure. The Attorney General is might exist where a regulation was con­in favor of this bill.

I w~nt to refer to the report, page 15, trary to the intent, spirit, or purpose ofthe act?

and quote from a letter of the Attorney Mr. SPRINGER. I think, unquestion-General. In the closing portion of the' ably, it WOUld. The gentleman is pre­letter this is what he has to say on that cisely correct. That is the purpose andsubject: that is the intention of that provision

The bill appears to offer a hopefUl pros- 'which has been written into this' bill.pect of achieVing reasonable uniformity and In those cases where these decisions arefairness in administrative procedures WIth-out at the same time Interfering undUly found to be arbitrary, where the decisionWith the efficient and economIcal operation is found to be capricious or an abuse ofof the Governmert.lnsofaras possible, the discretion or otherwise not in accordancebll1 recognizes the needs of Individual agen- with the law, the decision can be setcies by appropriate exemption of certaIn of aside. That is certainly fair, that is cer~

their functions, tainly equitable, and that is certainlyAfter reVIewIng the committee print, based upon a sound philosophy.

therefore, r Lave conclUded that this De- The next provision under. the scope ofpartment shoUld reccmmend Its enactment. review to which I desire to call the at-

That is the statement of Attorney tention of the Members is that any deci­General Clark on this particular subject. sion can be set aside which is con-

The gentleman from Iowa [Mr. trary to constitutional right, power, priv­GWYNNE] has gone rather carefully over ilege, or immunity. There is no one inthe provisions of the bill. I desire to call the world who could object to a provi­attention to only one, and that is the ,sion of that kind because that is basedfourth provision, relating to the question' tiponthe sound philosophy of the law.of reviewable acts, the review of the pro- The following provision in the scopeceedings by the judiciary, and the scope of review that I desire to call to the at­of the review: Under the present pro- tention of the Members is that in casescedure, in many cases where there is any . "where the decision is in excess of stat­evidence, even a scintilla of evidence, utory jurisdiction,.' authority, or limita­decisions have been ren4ered and.predhtions,orshortof. statutory right," such

.. cated on that character of evidence decision can be set aside. In otherbefore the hearing tribUnal. words, where the person who has been

XCII--357

tried has had taken away from him thelegal rights to which he is entitled; orthe limitation to which he is entitledunder the provisions of the law have beenreduced, then that character of decisionunder the scope provided in this bill canbe set aside.

Fourth. "Without observance of pro­cedure required, by law." That is apotent and powerful reason. Decisionsthus can be set aside where there is noobservance of the legal procedure on thepart of the hearing administrator oragent. When that authority has beentaken into his hands and he har failedto observe the legal requirements andprocedures, then such a decision, predi­cated upon that theory, can be set aside.

Fifth. "A decision which is unsupport­ed by substantial evidence" can be setaside. I mentioned just a little whileago that many cases in which decisionshave been rendered upon a mere scintillaof evidence, and not on the weight of theevidence. have been discov~red. Inmany instances the decisions have beenbased upon evidence which is not com­petent. But under the provisions of thisbill it is required that all such decisionsshall be based upon and predicated uponsubstantial evidence. That is the onlyfair basis upon which decisions of this

· character should be made by either acourt or any agency assuming the au­thority to hear and determine cases.

The sixth provision applies to deci­sions unwarranted by the facts to the

· extent that the facts are subject to a trialde novo by the reViewing court. It ismy judgment that under the scope ofreview set forth in ~he pending bill it

,will give every person the opportunityand right to have a fair, just, and impar­tial trial in the judicial proceeding, anda complete review of the case which hasbeen conducted against him. I hope thisbill is passed without any objection.This worth-while legislation has been toolong delayed already, and it Is my hopethat it will be passed in the House, fullyapproved by the other body, and prompt­ly signed by the President.

The CHAIRMAN. The time of thegentleman from Indiana has expired.

Mr. SUMNERS of Texas. Mr. Chair­man, I yield 2 minutes to the gentlemanfrom California [Mr. DOYLE].ADMINISTRATION OF JUSTICE IMPROVED AND

PUBLIC RESULTINGLY BENEFITED BY DILIGENTCOl.'lTINUOUS WORK OF. THE ButLDERS OF TIlE

BILL S. 7

Mr. DOYLE. Mr. Chairman, first Iwish very cordially and sincerely to com­pliment the Judiciary Committee, as wellas the distingUished chairman of the sub­committee of the Judiciary on this very

·appropriate and significant bill. It isrefreshing to come here to the nationallevel from my native state of California

'. and find that some of the worthy objec­tives for· which I had the pleasure of

·working for several years there, as mem­ber oBhe Long Beach, Calif., andAIner­ican Bar Associations, and as a mem­ber of the board of bar delegates of.thatgreat state. now "lwout .. to .be . passedunanimously.. ! hope. by this great na-

· tlonallegislative body.

5658 CONGRESSIONAL RECORD-HOUSE MAy 24

Just several months ago, when the diS­tinguished and able lawyer, Harry J. Mc­Clean, immediate past president of theLos Angeles Bar Association, was here inWashington in conference on the veryobjectives of this bill, I had the pleasureof sitting at dinner with him and listen­ing to his discussion and learning fromhim. He and I and my wife were school­mates at Long Beach, Calif. So, I nat­urally continue to have a great deal ofconfidence in his ability as well as hisforthrightness in this matter of greatimportance. Besides, I know that foryears he has searchingly labored to find aconstructive plan such as this bill.

The report of the committee is so in­clusive in its discussion of the subjectmatter and the diagram synopsis onpages 28 and 29 so clearly portray someof the most pertinent visions, and thedebate here today is so conclusively infavor of the bill that I hope there willbe a unanimous vote for it.

For more than 10 years this legislationhas had careful consideration and wehave just heard the distinguished Mem­ber from Michigan, on the minority side,state in substance that he has neverknown, in his long service in this House,of a measure having had more painstak­ing or careful study. Once again we findthat the report in this case shows the far­seeing and rich vision of former Presi­dent Franklin Delano Roosevelt. Forthe report, on page 7, thereof, specificallysets forth that he sent legislative recom-

,mendations to Congress many years agoin this very field.

I wHI not at this time take longer of thetime of the House because members ofthe Judiciary Committee have done avery fine job of explaining this and I docompliment them on the work they havedone.

Manifestly the vision of the needs ofthe objectives of this bill and the hard,continuous work over a term of almost a.dozen years of the American Bar Associ­ation, the various State bar associationsand the committees of Congress, and thedepartments of Government, shOUld havethe sincere appreciation at this time, ofall of us, gentlemen.

The CHAIRMAN. The time of thegentleman from California [Mr. DoYLE]has expired.

Mr. HANCOCK. Mr. Chairman, Iyield 5 minutes to the gentleman fromIowa [Mr. DoLLIVEll].

Mr. DOLLIVER. Mr. Chairman, dur­ing the period of time since the close ofthe First World War, there has been a.tremendous expansion of the number ofagencies, administrative bodies, andcommissions of the United States Gov­ernment. In fact, to those of us whowere engaged in the practice of law dur­ing that period, it had come to the pointwhere a great deal of our time was takenup in dealing with those various agen­cies of the Federal Government. Theywere spawned with great speed and with­out too much consideration, it seemed tothe practicing lawyer, over this period oftime, with a great variety of powers.Some of those powers directly a1fectedthe dally lives of every individual in theUnited States of America.

It necessarily followed, I suppose, sinceso many of them were created, that each

of them would develop its own varietyof procedure-that. each of them wouldhave its own method of doing business.Accordingly the problem that confrontedthe citizen who overstepped the boundsof the rules of some agency was to dis­cover how to alleviate the situation. Itwas more complex because there were nouniform rules of procedure, and a personhad to delve into the intricacies of eachagency or each commission in order tofind out what to do.

This bill is certainly a step in the rigbtdirection. It attempts to give some uni­formity of. procedure. It attempts todirect these agencies and commissionsand departments to use forms that canbe understood which shall be uniformthrough all of them.

Not only does it promote uniformitybut it codifies the procedures in a courtrevif!w. This part of the bill has justbeen explained by my colleague the gen­tleman from ·Indiana· [Mr. SPRINGER].Because of the necessity of passing thebill, how great have been the abuses insome of the agencies concerned.

Personally, I think perhaps this billdoes not go far enough in that direction.I believe I should welcome the oppor­tunity to vote for a bill that would cur­tail the exclusions with respect to judi­cial review that are here contained.

Mr. WALTER. Mr. Chairman, willthe gentleman yield?

Mr. DOLLIVER. I yield.Mr. WALTER. I would like to calJ the

gentleman's attention to the fact thatthere is no exclusion whatsoever. Thedecision of an agency created by statutethat prohibits a review is the only oneexcluded. We are anticipating the pOs­sibility that some time or other such anagency will be erected.

Mr. DOLLIVER. I was referring toexactly the pOint that the gentleman hasraised, that there are certain statutoryexclusions now existing which are notcovered by this bill. Perhaps there isjust one such agency and I believe thegentleman and I understand which onethat is. I still say I would welcome anopportunity to consider legislation whichwould include that excluded agency.

In connection with this bill I am veryglad to present to the Congress a pOrtionof a letter I have just received from Mr.Burt J. Thompson, of Forest City, Iowa,former president of the Iowa State BarAssociation.

Mr. ThompSOn says in part:This blll has been before the board of

governors of the Iowa State Bar Association,and has received its approval. I think It Isa fair statement also to say that It meetsWith tl\le approval of the lawyers generallythroughout the State of Iowa.

Mr. Thompson is a member of the spe­cial committee of the American Bar As­sociation which has been studying thisproblem of administrative procedure formany, many years. I am glad to see thathe is so fully in favor of the passage ofthis bill While it does not, as I havejust suggested, go as far perhaps as h,eand others may desire, nevertheless, it isa step in the right direction. We havegreat confidence that the bill will bepassed.

The CHAIRMAN. The time of the gen­tleman from Iowa has expired.

.Mr. SUMNERS of Texas. Mr. Chair­man, I yield 5 minutes to the gentlemanfrom Alabama [Mr. HOBBS].

Mr: HOBBS. Mr. Chairman--Mr. KEEFE. Mr. Chairman, will the

gentleman yield?Mr. HOBBS, I shall be so delighted to

yield to the distinguished gentlemanfrom Wisconsin.'

Mr. KEEFE. I merely wish to say tothe distinguished gentleman who is aboutto address the House and to the othermembers of the committee that I regretthat I am compelled to attend a veryimportant meeting of a subcommittee ofthe Appropriations Committee and mustbe there this afternoon. I do want theRECORD to show at this point, however.that this matter contained in this blllis one in which I have been interestedever since I first came to Congress in1939.

I congratulate the author and the JUdi­ciary Committee in finally bringing thisbill to the House. I trust it wiJI go backto the other body and result in final ac­tion in a field that is so very much neededin this country:

Mr. HOBBS. We thank the gentlemanfor' that. contribution, although for uswho know him so well and his outstand­ing ability in the field of law it was en­tirely unnecessary. We know he has beenprofoundly interested all the time, isnow, and that but for con:llicting engage­ments he would be with us as we workout this piece of legislation on the anvilof public discussion on the fioor of theHouse.

I simply wish to adopt what he hassaid. There is no need of reiteration,and that is what may be now fast ap­proaching in this debate. Ther~ is noneed to discuss or argue the merits ofthis piece of legislation. So I wish in thefew minutes allotted to me merely tomake a few long-overdue observationsas to some credit that is too apt to beoverlooked.

Mr. MURDOCK. Mr. Chairman, willthe gentleman yield for a question beforehe goes into that?

Mr. HOBBS. I am delighted to yieldto the distinguished gentleman fromArizona, always.

Mr. MURDOCK. I am not a lawyer,as the gentleman knows. I am justasking the gentleman whether the billenacted into law wiJI bring about a gov­ernment of law l'ather than of men? Isthat the ideal toward which this billlooks?

Mr. HOBBS. The gentleman has.phrased it very aptly. It is the idealtoward which this legislation looks andmoves. Whether or not it wilJ be real­ized depends upon the constructionwhich may be placed upon it by the trialand appellate courts of this land. Wehope and pray that they will so con­strue this act as to emphasize its plainmandate and achieve that ideal.

Not only do I wish to compliment thedistinguished gentleman from Pennsyl­vania, Han. FRANCIS WALTER, who is theauthor of the report and who has doneso much in the drafting of this. actthrough the years he has worked. but Ialso wish to echo the congratulationsthat have been showered on the gentle­man from Iowa, Hon. JOHN GWYNNE, and

1946 CONGRESSIONAL RECORD-HOUSE 5659his associates on the subcommittee.Our late great President, Franklin D.Roosevelt, in 1939, acting in accordancewith the recommendation of the Hon­orable Homer Cummings, Attorney Gen­eral of the United states, recommendedthe appointment of a committee to studythe problem this bill seeks to solve. IWish also to compliment each of the suc­cessors of Attorney General Cummingsin that high office, and particularly 6peakwith approval of the work of the presentAttorney General. Hon. Tom C. Clark.

The CHAIRMAN. The time of thegentleman from Alabama has expired.

Mr. SUMNERS of Texas. Mr. Chair­man, I yield the gentleman five addi­tional minutes.

Mr. HOBBS. Mr. Chairman, I wouldbe unworthy of the occasion, however,if I did not pay tribute to the work ofthe American Bar Association in thisconnection, particularly the leadershipof that body and its great special com­mittee. We all know that Hon. CarlMcFarland has been one of the out­standing leading spirits in the movementwhich is now resulting in the enactmentof this bill. We shOUld also gratefullypraise the administration of the Honor­able George Maurice Morris, who duringthe time he headed that organization, ashis successors have done in emulationof his example since his day, made itpossible for us to bring to you todaythe well-reasoned, carefully drawn billwhich is so soon to become law.

Mr HANCOCK. 'Mr. Chairman, willthe gentleman yield?

Mr. HOBBS. I am always delightedto yield to the gentleman from NewYork.

Mr HANCOCK. May I add the nameof a former very active supporter of thismeasure, a former president of the Amer­ican Bar Association, Arthur P. Vander­bilt.

Mr, HOBBS. Not only that, sir, but inIhe with the gentleman's usual qUickthinking, he simply beat me to the punch.I am delighted to make acknowledgmentnot only to Hon. Arthur Vanderbilt butto a long line of ether men who haveaided in their high office.

Mr. Chairman, this is all I really careto say today. It seems to me that theConstitution of the United States, hasdivided the powers of our Govern­ment into three coordinate branches, thelegislative. executive, and jUdicial.These have been swallowed up by someadministrators and their staffs who ap­parently believed that they were omnipo­tent. These have exercised all of thepowers of government, arrogating tothemselves TJIore power than ever be­longed to any man, or group. This hasmade necessary the enactment of somesuch legislation as is now in process ofpassage.

We hope and pray that the plain mean­ing of this law will be so correctly inter­preted as to effectuate its high purpose.Therefore we tha1"k every Member of theHouse in advance for the unanimous sup­port that this bill deserves and will re­ceive.

Mr. HANCOCK. Mr. Chairman, Iyield 5 minutes to the gentleman fromKentucky lMr. ROBSIONL

Mr. ROBSION of Kentucky. Mr.Chairman, I arise in support of Senatebill 7 which proposes "to improve the ad­ministration of justice by prescribing fairadministrative procedure." This billpassed the Senate some time ago, cameto the House and referred to the Commit­tee on the Judiciary of the House whichcommittee. after careful consideration,amended the Senate bill and which, inmy opinion, improves the Senate bill inline with the purposes of the bill.

I am not a member of the subcommit­tee of the Judiciary Committee that heldthe hearings and considered this bill. Iunderstand that the subcommittee ap­proved it by unanimous vote. It thencame to our full committee and as I re­call there was no serious opposition to thebill in our full committee. Mr. WALTERof Pennsylvania is the chairman and Mr.GWYNNE of Iowa is the ranking Repub­lican of that snbcommittee. They haveboth made splendid speeches in explain­ing the provisions and purposes of thislegislation. The time for general debateis more or less lil)1ited. I am sure thatthose who are not members of our JUdi­ciary Committee will find the report onthis bill most enlightening and I urgeeach one of you to read the report care­fully.

This legislation is very necessary andit is long overdue. It is not as compre­hensive as it should be. It certainly is astep in the right direction and as timegoes on no doUbt it will be perfected byappropriate amendments. Many of ourleading jurists, statesmen, including for­mer Chief Justice Hughes, many distin­guished lawyers and judges, the Amer­ican Bar Association, business people,and other citizens have strongly com­mended and urged legislation for thepurposes set forth in this bill. Years agowe had only a small number of Federalbureaus, agencies, and commissions, anda comparatively small number of Federaloffices but as the country has grown andas its activities have become more diversi­fied and complex it has been necessaryfor the Congress to pass laws delegatingto various agencies their administration,Congress could not spell out in precisewords the administrtaive powers andduties of these agencies, It could onlydo so in general terms and it was up tothese agencies to issue appropriate rulesin carrying out their administrativeduties within the purpose and intent ofthe Congress as expi'essed in the lawsenacted by Congress. This type of legis­lation and the delegation of powers haveincreased from year to year' so that itnow involves many, many agencies andmany, many officerJ. There is no doubtin my mind but what we have too manyagencies and too many officers. The Fed­eral officials now, outside of our armedforces, in this and foreign countries num­ber approximatelY 3,000.000. In the last10 or 15 years these Federal agencies andthe number of officials have grown byleaps and bounds, and the naked fact isthat we do have these agencies and offi­cials administering hundreds of acts ofCongress and in so doing they have issuedorders, directives, and rules exceeding thepowers granted to them by the Congress.In other words, they have assumed the

function of making laws. The power tolegislate and make laws rests alone inthe Congress and not within the powersof any officer of anyone of th2se agencies.

These same officers of these agenciesissue these orders, directives, and rules,and then they proceed to hail the citizensand business concerns before them forinvestigation, trial, and judgment, and inthat way not only become the law mak­ers but they interpret their own self­made laws and execute them, They arethe law makers, prosecutors, juries, andjudges of their own laws.

Mr. SPRINGER. Mr. Chairman, willthe gentleman yield?

Mr. ROBSION of Kentucky. I yield tomy friend from Indiana.

Mr. SPRINGER. Is it not a fact thatevery bar association throughout thecountry is deeply interested in this legis­lation beca,use the lawyers do not knowwhat procedure to follow and they do notknow anything with respect to the lawwhich is followed by these triers or ad­ministrators of the laws passed by Con­gress.

Mr. ROBSION of Kentucky. That isone of the things I was coming to. Theychange the rules of the game from day today and without any notice to the Ameri­can people who will 'be affected by thedirectives and rules. As I have stated,here is a group of men or individualsmaking and changing the laws and thenexecuting them. Our Government isbased upon the principle of threebranches: Congress makes the laws andthe courts interpret them, ane' the exec­utive branches execute them, but inmany of these agencies we find all ofthese fUnctions of the Government lodgedin one person or anf, board and then inmany cases those who are aggrieved ofthe actions of the administrator or boardare denied an appeal to the courts. Insome cases where there is an appeal thecourts uphold the administrator's orboard's action if there is any evidencesustaining the action of the board. Itmay be against the overwhelming weightof the evidence and the rights of theparties may be ignored. This bill givesthe aggrieved party the right to appealto the courts and the court may set asideor modify the decision of the adminis­trator or board if they ignore the law,the Constitution, or substantial evidence.They cannot sustain a finding or decisionof the administrator or board unlessthere is substantial evidence supported.The administrator or board cannot basetheir finding on the scintilla rule.

Mr. DONDERO. Mr. Chairman, willthe gentleman yield?

Mr. ROBSION of Kentucky. I yieldto my friend the gentleman from Michi­gan [Mr. DONDERO].

Mr. DONDERO. Does this bill go farenough to inclUde those who might seektheir day in court under OPA regula­tions?

Mr. ROBSION of Kentucky. As I un­derstand this bilI, it does not give theright of appeal in cases where the Con­gress has expressly stated there can beno appeal; but unless the right of ap­peal is denied, I think an appeal couldbe taken as a matter of course where

5660 CONGRESSIONAL RECORD-HOUSE MAY 24there was a proper showing that the con­stitutional rights of the aggrieved partyhad been invaded; that the act itself did'not sustain the award or judgment andan appeal Can betaken where CongressprQvided in the act that an appeal couldbe taken and the way and manner inwhich it could be made. '

As I recall, some of the provisions inthe OPA Act provide for an appeal undercertain conditions and circumstances,but those appeals are, limit~d to the pro­visions of the acts themselves.

Mr. BENNET of New York. Mr.Chairman, will the gentleman yield?

Mr. ROBSION of Kentucky. I yield tothe gentleman from, New York [Mr.BENNETJ.

,Mr. BENNET of New York. Are notthe war agencies eXcluded from thisbill?

Mr. ROBSION of Kentucky. Some ofthe acts of Congress expressly excludean appeal in some cases, and the billbefore us excludes the Selective ServiCeAct and a number of other acts.

Mr. HANCOCK of New York. I yieldthe gentleman an additional 2 minutes.

The CHAIRMAN. The gentlemanfrom Kentucky is .recognized for twoadditional minutes.

Mr. ROBSION of Kentucky. Some ofthe most commendable features of this

> bill are:First. It defines "agency," "person,"

"party," "rule," "rule-maki..lg," "order"and "adjUdication," "license" and"licensing.." "sanction" and "relief."

Second. It provides that there orders,rules, and directives can only be adoptedafter reasonable notice, and, when onceadopted, they must be published in theFederal Register. These records areopen to the public, and they cannot beamended or changed without giving ahearing to interested parties.

Third. This bill recognizes the prin­ciples on which our three branches ofgovernment are based so that the prose­cutor may not get up the evidence,prosecute' the case, and, at the sametime, decide the case.

Fourth. The interested parties mustbe given proper notice of the legal andfactual issues, with due time to examine,consider, and prepare for them and theparties who are entitled to appear ontheir own behalf or by counsel either an,attorney at law or other person who hasbeen admitted to appear before suchboard or agency.

Fifth. The agency is required to afiordthe parties an opportunity for settlementor adjustment of the issues involvedwhere the nature of the proceeding andthe public interest permit.

Sixth. All presiding officers and decid­ing officers are to operate impartially.Such officer may disqualify himself anda party to the proceeding may file proper'affidaVit to show that the presiding officerhas personal bias or is otherwise dis­qualified. These officers may exclUdeirrelevant, immaterial, or unduly repe­titious evidence.

These are only a few of the many pro­visions of this bill that leads us to be,;.lieve that it will improve the administra­tion of justice in administrativ", pro­cedure of the various agencies and fur-

ther protect the constitutional rights andthe interest of the ~merican people. _

Mr. SUMNERS of Texas. Mr. Chair­man, I Yield 5 minutes to the gentlemanfrom Texas [Mr. RUSSELL]. '

Mr. RUSSELL. Mr. Chairman, at theoutset I must agree that this bill in itsentirety will be a valuable asset to thepeople of America if it is passed. In themain, it seeks to give the courts a littlemore function with regard to adminis­trative agencies' rulings, decrees, orders,and juqgments. In that respect I am infull accord with the terms of the bill.

Being a member of the lawyers' pro­fession, I have always looked upon thefunctions of our courts and the juris­prudence of our country in general withjealousy and zealousness. I have alwaysbeen able to speak with pride of the ju­risprUdence of the American Governmentbecause of the fundamental principlesunderlying the rules by which the courts,both trial and appellate, are guided.Perhaps 'some of you do not know it, butas far as I know, without a single excep­tion each general principle of the rulesof evidence that have been adopted bythe courts is based upon some Biblicalquotation Every rule is taken from theBiqle, when you analyze it and run itback to its source. This fact aloneshould make the American people proudof American jurisprudence. There Isone thing I am somewhat apprehensiveabout in regard to this bill. It is forthat reason I take the floor for these fewminutes. If you will turn with me topage 38 to subsection (c) of section 10, Iwant to read the first part of that para­graph to you. It is as follows:

Every agency actlon made reViewable bystatute and every final agency action forwhich there Is no other adequate remedy Inany court shall be subject to judicial reylew.

That is fine. That is excellent. Thatis what the American people have beenclamoring for for the last few years.The Congress has been clamoring for ittoo. The paragraph reads further:

Any' preliminary, procedural, or interme­diate agency action or rUling not directlyreViewable shalJ be subject to reView uponthe reView of the final agency action.

Now, that is fine. But here is theclause or phrase that I am afraid of:

Except as otherwise exprersly required bystatute-

I am afraid of that provision. I amnot in a position, because I did not knowthe bill was up for consideration, and Ihappened into the Chamber and heardthis discussic.n, to answer directly theway in which I think this would preservethe dictatorial powers of that agency orthat authorization by law. The law, ofcourse, is what the Congress makes.There are some laws which I am not ableto point out to you right now which makeit possible for an agency to pass upon aquestion presented to them on the basisof the slightest evidence, whether it berelevant or irrelevant, whether it be ma­terial or immaterial, and whether it beprejudicial or not prejudicial.

The CHAIRMAN. The time of thegentleman from Texas has expired.

Mr. SUMNERS of Texas. Mr. Chair­man, I yield three additional minutes tothe gentleman.

Mr. SPRINGER. Mr. Chairman, Iyield one additional minute to the gentle­man.

Mr. RUSSELL. When an agency hassuch an authorization, which under theauthorization is the law, then this act isexempting that agency from l.. judicialreview or a passing upon that evidence,regardless of the kind of eVidence it maybe. .

Mr. WALTER. Mr. Chairman, willthe gentleman yield?

Mr. RUSSELL. I am glad to yield tothe gentleman.

Mr. WALTER. The gentleman is notseriously contending that an agency de­cision based upon a mere scintilla of evi­dence would hold up?

Mr. RUSSELL. If. the law hal, madeit SUCh, it will hold up under this veryphrase that I, have just read. That iswhat I am afraid of.

Mr. WALTER. Well, the very meas­ure now under consideration is designedto prevent that sort of thing, and willprevent it.

Mr. RUSSELL. But this is the thing.I am afraid of, that is, giving life to thatpower which the measure is supposed totake away.

There is another bill pending in thisHouse, a very controversial bill. Per­haps you heard of it this week on Cal­endar WednesdaY, where a provision isembodied in that bill which I do not be­lieve 25 Members-lO Members-not 5Members-if they understood the legaleffect of that provision, would vote forthe bill with that in it, because theywould be cutting off their own noses anddenying themselves a right which theyhold near aDti dear. 'That SLL-_e provi­sion is embodied in that bill. If it be­comes law, the law making that scintillaof evidence binding upon the court, thenthis bill will not take care of it. Thatis my only objection to this bill. I donot want to tie the hands of the courts,but throughout the years of Americanhistory there has developed the m'ostbeautifUl, the most equitable, the mostAmerican jurisprudence known through­out the world, a system of jurisprudenceunder which each man can go into courtwhere justice, and justice alone, willprevail.

I ask you to look into this question be­cause I am fearful that by this, provisionyou are giving life to that which youthink you are destroying. '

The CHAIRMAN. The time of thegentleman from Texas has again ex­pired.

Mr. HANCOCK. Mr. Chairman, Iyield 5 minutes to the gentleman fromNew York [Mr. BENNET]. ,

Mr. BENNET of New York. Mr.Chairman, I had not expected to speakon this subject today. I have been prac­ticipg law for 25 years. I am certainlyin sympathy with the prOVisions of thisbill. Nevertheless, I Vlonder if it is fullyunderstood by the Members of the House.

I want to make the frank admissionthat I read the bill three or four timesand I have also read the report and I donot fully understand it yet. I just askedthe gentleman from Kentucky [Mr.RoBSION] a question, to which I did notget the proper answer, which indicatesthere may be some misunderstanding

1946 CONGRESSIONAL RECORD-HOUSE 5661even on the part of well-informed-Mem­bel's. My question was: "Does this billaffect the war agencies?" The gentle­man indicated he thought it did. It doesnot. The.war agencies are expressly 'ex­empted from the provisions of this bill.It is against the war agencies that youhear most of the complaints and criti­cism. It is against the OPA and the CPAthat you hear most of the criticism.

Mr. WALTER. Mr. Chairman, winthe gentleman yield?

Mr. BENNET of New York. I yield.Mr. WALTER. Those agencies are

erectect under orders and statutes thatprovide a special method of review oftheir decisions.

Mr. BENNET of New York. I am wellaware of all that, but what I said, thatthey are not covered by this act, stillremains true. Also, that most of thecriticisms are against those agencies.That remains true.

Mr. GWYNNE of Iowa. Mr. Chairman,will the gentleman yield?

Mr. BENNET of New York. I yield.Mr. GWYNNE of Iowa. That matter

was discussed at some length in the com­mittee. Of course, we hope we are writ~

ing permanent legislation, to be improvedas the years go by. We also hope thatthese war agencies will soon be termi­nated.

Mr; BENNET of New York. I certainlyjoin in that hope that they will soon beeliminated. I think the great majorityof the American citizens feel the sameway.

Mr. DONDERO. Mr. Chairman, willthe gentleman yield?

Mr. BENNET of New York. I yield.Mr. DONDERO. A moment ago I

asked the gentleman from KentuckyMr. ROBSIONJ whether or not this billwas broad enough to permit a person whogot into difficulty with the OPA to havehis day in court. I think the gentlemanexpressed doubt whether it did or not.What is the gentleman's opinion?

Mr. BENNET of New 'Y"ork. My opinionis that it has nothing to do with the OPA.

Mr. DONDERO. That is a war agency.It does not cover the OPA, as I under­stand it.

Mr. BENNET of New York. Underdefinitions, section 2, page 22, those agen­cies and functions Which expire on thetermination of present hostilities orwithin any fixed period thereafter, orbefore July 1, 1947, are not covered.That means, war agencies.

Mr. KEFAUVER. Mr. Chairman, wiIlthe gentleman yield?

Mr. BENNET of New York. Gladly.Mr. KEFAUVER. I.think I shOUld call

the gentleman's attention to the factthat on page 22, line 3, it provides thatit shall not apply to war- agencies ex­cept as to the requirements of section 3.Of course, section 3 requires that theirorders be· made public.' That is aboutas far as the committee thought its]lOuld go in making it applicable to thewar agencies.

Mr. BENNET of New York. I amaware of that particular exception. I donot think it affects the general proPQsi.tion that I am" advancing.

I am not going to oppOse this bill; Iam trying to make it clear that I donbtthink it is' fully' understQod .by .. an .the

Members. Before they vote on it Ithought perhaps they might like to havea little different apprQach to it. If IcQrrectly understand this bilI. and I shanbe pleased to have the members of thecQmmittee tell me if I am wrQng aboutit, it does not specifically provide wherean appeal should be taken. for whichreaSQn I assume the appeal would haveto be taken to the District CQurt of theUnited States. I am nQt an expert onthese matters, but I think ordinarily billsof this nature have provided fQr appealsto the circuit court of appeals. If I amcQrrect about that, that means It is goingto be quite a lQng-drawn-out process ofappeal in some of these cases.

Mr. WALTER. Mr. Chairman, will thegentleman yield?

Mr. BENNET of New York. I yield.Mr. WALTER. The only instance

where an appeal can be taken to thecircuit court of appeals in the· first in­stance is where there is a special statuteproviding that 'method of appeal. In allother instances the appeal must be di­rect to the United States district court.

Mr. BENNET of New York. That iswhat I said in substance in my state­ment. But statutes t.ave been passedwhich permitted appeals directly to thecircuit court of appeals in order to ~ve

time. There are any number of admin­istrative agencies covered by this billand anybody who believes himself in­juriously affected by an order can appealas I understand It to the district court.If he is not satisfied with the decision ofthe district court he can gO on to thecircuit court of appeals and then to theUnited states Supreme Court if they willgrant him (t writ of certiorari. I wouldlike to have someone tell me whether Ialn correct or not in this statement thatthe Pure Food and Drug Administrationcould find that some article within itspurview was deleterious to thl publichealth and issue an order against Its dis­tribution. The manufacturer could thengo to the district court appealing fromthat decision and obtain an Injuncti-on ifthe court saw fit to issue an injunction.AmI correct in that statement?

Mr. WALTER. The gentleman is en":;tlrely correct, but I cannot conceive of acourt's granting an Injunction to permitthe further distribution of an articlethat was unfit for human consumption.

Mr. BENNET of New York. That mayvery well be; nevertheless as I read thisbill it can be done. The same thingwould be true with respect to the Secu­rities and Exchange Commission iSSUingan order stating that a certain prac­tice should not be indulged in. Theaggrieved party could obtain an injunc­tion and go ahead continuing the allegedimproper practice.

The CHAIRMAN. The time of thegentleman from New York has expired;

Mr. SUMNERS of Texas. Mr. Chair­man, I yield 5 minutes to the gentlemanfrom-Tennessee [Mr. KEFAUVER],. Mr. KEFAUVER. Mr. Chairman, firstI want to join/with the many Memberswho have spoken herein congratulatingthe chairman of the committee, thegentleman .from Texas,. Judge SUM:­Nli;Rs,and the chairman of. the subcom­mittee" .the gentJeman from .. Pennsyl­vania [Mr. WALTl.RJ. the ranking minor';'

ity Members, the bentleman from NewYork [Mr. HANCOCK], the gentlemanfrom Iowa [Mr. GWYNNE], and otherson the subcommittee who have workedso long and so intelligently on this prob­lem. Our chairli.lan, the gentlemanfrom Texas, Judge SUMNERS. deservesspecial recognition for his good work.He has worked on the problems of ad­ministrative practices for many years.He filed H. R. 1203 and H. R. 4941, whichare the: companion measures to S. 7,which we have before us today. I sup­pose that in the files of the JudiciaryCommittee you will find more bills, moreproposals, more complaints, and sug­gestions. about administrative procedurethan any other one SUbject. Certainly,during the 7 years I have been inCongress the matter of making pro­vision to have a uniform system of pro­cedure in the agencieS of Governmimt hasbeen one of the vital ones before the Con­gress and the Nation. The committee isto be heartily congratulated on finally be­ing able to get everybody together on atleast a beginning of a settlement, a so­lution of this difficult problem.

In this compJex day when Govern­ment is interested in so many things, it is,of course, necessary to have adminiStra­tive agencies which must of necessity beable to make some rules and regulationsand to act in quasi-judicial positions incertain instances. Congress cannot, bythe very complexity of the situation, makeall of the detailed rules and regulations.But in connection with the administrationof the agencies, the lawyers of America,the businessmen, anti interested peoplehave for many years been perplexed intrying to find some way to get uniformityinto the making and publication of regu­lations and in obtaining a review pro­cedure. Some of the agencies for manyyears have resisted various administra-­tive procedure bills that have been' pre­sented' or- the theory that the bills wouldunduly hamstring them in the operationof their departments.

On the other hand, some lawyers ofAmerica and many others wanted moredrastic rUles for the regulation of agen­cies than the Congress has been willingto impose. Finally the agencies havecome to realize that some orderly admin-'istration must be worked out for themand they now join in the approval ofthis legislation.

Various bar associations and commit­tees that have worked on this matterhave likewise joined in recommending It.

I have noticed in the debate on thebill that various Members have felt thatin some instances the bill went too far, inother instances it did not go far enough;some things should be done that are notdone and some things should not be donethat are done. This bill will not be en­tirely satisfactory to everyone but itmarks an excellent begining. Only afteryears of practice, experience, and appli­cation can we come to see the placeswhere it will need ren:edying and whereit will need strengthening. I think it is

. going to be greatly in the public interestto have. uniform administration in thevarious agencies of the Government.

There is one matter I .feel should becommented on. and that Is that lawyersof the United ·States have always been

5662 CONGRESSIONALRECORD--HOUSE MAY 24met with various and different regula-'tionsfor the practice before the variousagencies. For the average lawyer repre­senting his client in sections distantfrom Washington it is very difficult. to

.know how to be admitted to practicebefore SOme of the agencies. Some ad­mit anybOdy, some admit lawyers only,some admit laymen, and some requirespecific qualifications. I would like tosee it worked out so that any member ofthe bar who is in gOO~ standing in thebar of his own State is at least primafacie eligible to practice law before thesevarious agencies. This could be donewhile the bill is in conference. I haveprepared an amendment which I haveshown the chairman of the subcommit­tee and others which will make thisneeded improvement. I have had billspending on the question for years. Thegentleman from New York [Mr. HAN­COCK} has a bilI pending to this effect.The question is not complicated and Ishould like to see it settled satisfactorilyin this measure. The chairman of thesubcommittee [Mr. WALTER] indicat.ed hethought ',well of the proposal.

Mr: Chairman, I. take this time mainlyto express my thanks for the job that hasbeen done and to say that this is a greatday for the judiciary of the country, forthe Government and the people in thatwe have made an excellent beginning inworking out these rules and regulationsfor the various agencies. The commit­tee,the agencies, the bar associationsand all who have participated deserveour deep appreciation.

The CHAIRMAN. The time of thegentleman from Tennessee has expired.

Mr. HANCOCK. Mr. Chairman, Iyield 1 minute to the gentleman fromCaltfornia [Mr. JOHNSONJ.

Mr. JOHNSON of \...aIifornia. Mr.Chairman; in 1943 when Hon. Earl War­ren, the present Governor of California,took office this matter of administrativeagencies and their rules and set-up wasso acute and confused that he advocatedpassage of a law laying down the newand uniform rules and procedures thatthese agencies should observe. That lawis almost the same as the pending bill.Therefo~e, for the information of theMembers I would like to make a state­ment concerning the scope of the opera­tion of the California law. If that ex­perience is any criterion of what we mayexpect with the bill before us, I am con­fident everybody, when this law isenacted, will entirely approve of it. Itwill do a great measure of justice tolitigants who appear before these typesof boards and administrative agencies.

As I said.. the State of California in1943 passed a similar measure and it hasmet with wholehearted approval, notonly of the agencies coming within thescope· of the measure, but with otheragencies, who now desire to be broughtwithin its scope. A brief history of thebackground of the Califomia Adminis­trative Act follows:

Some time prior to the war the chaoticcondition of the rules in effect in variousadministrative agencies in the State be­came COmmon knowledge. Some agen­cies had printed their rules; some hadmimeographed them; some had themtypewritten; and some agencies had not

published them in anyfotm whatsoever,stating thattbey were within the knowl­edge of the chairman or other executiveofficials of the agency. The legislature,taking cognizance of the situation.passed a bill requiring the agencies tofile their rules with the Secretary ofState. and appointed a codification boardcomposed of the secretary of state, thehead of the department of finance, andthe legislative counsel. The magnitudeof the problem Was disclosed upon thefiling of the rules. It required severalfiling drawers to contain the' existingrules of some.of the aeencies. Many ofthe agencies requested assistance in de­termining which rules were actually ine'lfect at the time, and simHar unfor­tunate situations were disclosed. A sub­sequent legislature provided $7{),OOO to beused in editing, codifying, anc.i printingthe rules in effect in the various agencies,and order began to repl~ce this chaoticcondition. ' . .'

Gov. Earl Warren realized that thesituation was acute, and in an ad­dress to the members of the State barof California called upon them to' assistin the passageof'an administrative pro­cedure act, which would cure many ofthe defects in administrative agency pro­cedure which were apparent In certainagencies they acted as investigator, pros­ecutor. and judge; in others. matters weredecided without regard to evidence; andin others, the attorney for the agency,in effect. decided the questions. Certainagencies admitted that when their coun­sel objected, his objections were invari­ably sustained. and when the oppositioncounsel objected, his objections were alsooverruled.

These agencies had a great deal to dowith the life and business of the peopleof the State, and their effectiveness wasbeing impaired by these procedures.

Following the Governor's speech, the .Judicial Coupcil of California, headedby the chief justice of the supremecourt, and the administrative agencies'committee of the State bar of Californiacommenced a study. which resulted inthe presentation in the 1943 legislatureof an administrative procedure act,which was passed and thereafter becamelaw upon its signature by the Governor.It was similar in scope to the presentmeasure under consideration. It con­cerned itself with the rules and ordersissued by the agencies, with the methodof investigation, the conduct of hearings,the findings, with the type of evidencewhich might be introduced; and the scopeof judicial review of the agencies de­cisions and orders.

Certain California agencies were notincluded within the jurisdiction of theact because they derived their eXistenceand jurisdiction directly from the Con­stitution of California, and the legisla­ture did not have authority to includetheir procedures under the Administra­tive Procedure Act. Among these agen­cies were the Industrial Accident Com­mission, and the Railroad Commission ofthe State of California. Since the acthas been in effect it has received theacclaim and sincere approval,' not onlyof the bar of California, but of the peopleof the State. and the officials of theagencies involved. In addition to this,

thechiet omciaIs ·of the constitutionalag'encies'abovealluded to, have ap­prOached the Governor of California andthe state bar of the State to ask amend­ments to the constitution of the Statefor the purpose of bringing these agen­cies under the procedure set up in theAdministrative Procedure Act of Cali­fornia.

Mr. HANCOCK. Mr. Chairman, I yield·5 minutes to the gentleman from Ten-nessee [Mr. JENNINGS]. . .

Mr. JENNINGS. Mr. Chairman, thisbill is a step in the right direction, butmany more of the same tenor and effectneed to be taken'by Congress. This Gov­ernment was primarily set up for threegeneral purposes; first, to protect itselfand its citizens against foreign aggres­sion; second, to protect the law-abidingmembers of society against t.he fraud andviolence of the lawless members of so­ciety; and, third, through the first 10amendments, to protect its citizensagainst the encroachment on their li'3er­ties and the destruction of their lives andproperty rights ly the Government itself.

It is one of the paradoxes, one of thetragedies of history, that men and womenmust sacrifice. fight, and die to establisha Government· such as our fathers andmothers set up and then are compelledto fight their own Government to pro­tect themselves against assaults on theirliberty, lives, and property. This factmade necessary the adoption of the Billof Right embodied in the first 10 amend­ments to the Federal Constit·.1tion. Theycover the citizen all over with the armorof the law. And nQ bureaucrat should bepermitted to strip the citizen of theirprotection.

The Federal Government now touches,almost every activit.y that arises in thelives of millions of people who make upthe population of this COUll try. Thechief indoor sport of the Federal bureau­crat is to evolve out of his own innerconsciousness, like II spider spins his web,countless confusing rules and regula­tions which may deprive a man of hisproperty, his liberty. and bedevil the verylife out of him.

Recently· Westbrook Pegler dissectedan interesting speech by a young ladywho is an official in one of the bureaushere in Washington. I was interestedin his article' because I heard her make aspeech not so long .ago at a meeting ofthe Federal Bar Association in whichshe said that this bilI was p~nding beforethe two Houses of Congress, and that theFederal bureaucrats and lawyers whoserved these bureaus and bureaucrat.sshould be on their toes and should dotheir best to prevent the passage of thisbilI or any similar bill because she saidthat it would put t1.,e Federal bureaucratsand the lawyers whom they had on theirpay rolls in a strait-jacket.• Well, 1 was interested in that frankconfession and I became interested in fit­ting a restraining legal strait-jacket onthese people who have been harassing thecitizens of. this country. As 1 have said,one of the:r principal indoor sports is topromulgate these rules and regulations.

Now, this bill does three things gen­erally, you might say. It puts a legal re­straint upon the power bf these bureausto promulgate rules and regulations and

1946 CONGRESSIONAL RECORD-HOUSE 5663gives the citizen who may be affected bythem the right to a hearing, to make sug­gestions, and to enter protest against theproposed rule, and then it gives the citi­zen the right to a htaring before thesebureaus. It requires that the rules andregulations shall be made public, and as alast resort when the citizen has exhaust­ed his remedy before some Federal bu­reau here in Washington, he has a rightto gO into court and undertake to proiecthimself.

I just want to read some of the thingsthat this enterprising young woman hadto say. Mr. Pegler said of her speech be­fOre a meeting of the Texas Bar Associa­tion:

Though cynical, Miss Rawalt was thorough­ly honest and practical. The citizen occupiedno place in her remarks. Her message wasan exhortation to her fellow lawyers to getaware of the existence of government bybureaucracy and to grr b off their share ofthe loot from a Nation bedeviled by confusingand harassing rUles, regulations and inter­pretations, many of them improvised by NewDeal bureaus operating as courts.

• • • the extent to which the citizenhas been elbowed out of court and into NewDeal bureaus for his justice, constantly Inneed of lawyers to keep him out of jail, isthoroughly convinCing Miss Rawalt certainlywould not exaggerate.

"Speaki .1g of opportunity," the lady said,"are the lawyers of this country, men andwomen, going to take full advantage of theiropportunities in administrative law? It Isthe most rapidly expanding area of law prac­tice today. There are some 217 special courts,bureaus and commissions which today decideupon and administer various Federal lawsdirectly affecting citizens and business firmsin this country. This does not take into ac­count similar State quasi-judicial bodies.

Administrative law, through the FederalCommunications Commission, regulates theprograms you hear on your radio and de­termines the use of the telephone and tele­graph in our country today. Administrativelaw, through the rederal Trade Commission,determines various trade practices within theindustries of this Nation. Administrativelaw, through the OPA and other departments,regUlates what food you may bUy and whatyou may pay for It. Concurrent with thephenomenal growth in this field of law, therehas been a sudden decrease In the numberof lawyers.

Then this young woman told the Texaslawyers that they should "stake theirclaim in this promising professional goldmine now and avoid the costly process ofejectment of others who have laid claimsthereto." She urged them to familiarizethemselves with the bureau where thisadministrative law is administered. Shealso called their attention to the fact thata certain proVision which was expressedin 500 words in the original income-taxlaw now runs to 2,300 words.

Then she stressed the statement ofMr. Justice Frankfurter, who recentlysaid in ;me of his opinions.:

The notion that because the words of astatute al'e plain, its meaning also is plain,ts merely pernicious oversimplification.

In other words, words do not meanwhat they.say and things are not as theyappear to the naked eye and to ordinaryhuman intelligence.

Mr. Chairman, for the reason I havestated and for many other reasons thatmight be stated, I hope this bill is en­

. acted by this House as passed by the

Senate. It will give a long-sufferingpublic much-needed relief.

Mr. CURTIS. Mr. Chairman, will thegentleman yield?

Mr. JENNINGS. I yield to the gentle­man from Nebraska.

Mr. CURTIS. I will say to the gentle­man from Tennessee that I shall supportthis measure. I think the gentlemanmade one point that should be well re­mem'Jered, that this is only a step inestablishing a government of law in thesedays of bureaus. I hope the time willsoon come when we can standardize theprocedure before all these bureaus so thatthe lawyer who lives near the citizen canfind out what the procedure is beforethese various bureaus.

Mr. JENNINGS. And may representhim in a court among his own peopleand in his own State. It was never con­temPlated or intended by the founders ofthis Republic that the power to .legislatevested in CGngress should be usurped bya bunch of appointive officers here inWashington who were never elected byany constituency and never could be.

Mr. SUMNERS of Texas. Mr. Chair­man, I yield myself the remainder of thetime.

Mr. Cl:).airman, this is one of the mostimportant items of legislation that hasbeen reported by the Committee on theJudiciary since I have been a memberof that committee, and one of the mostimportant that has been considered bythis House in a long time. I do not be­lieve any item of legislation that I knowof has received broader and more earnest,patriotic consideration by so manygrou::Js of our citizenship, as well as Gov­ernment agencies themselves and indi­viduals in different branches of theGovernment service.

The subcommittee of the Committee onthe Judiciary which had first responsi­bility is Subcommittee No.3, of whichthe gentleman from Pennsylvania [Mr.WALTER] is the able chairman, andthe gentleman from Tennessee [Mr.KEFAUVER], the gentleman from SouthCarolina [Mr. BRYSON], the gentlemanfrom Massachusetts [Mr. LANE], the gen­tleman from Iowa [Mr. GWYNNE], thegentleman from Connecticut [Mr. TAL­BOTl, and the gentleman from Ohio [Mr.LEWIS] members of that subcommittee,have done a fine job, as has the entiremembership of the Judiciary Committee.There have been differences of opinion,but in the main they have been composedduring the long consideration of thelegislation.

An interesting historical fact aboutthis bill is that the American Bar Asso­ciation began to manifest interest in thistype of legislation as far back as 1935.William L. Ransom was then its presi­dent. Through the intervening adminis­tration of Presidents Frederick H. Stinch­field, Arthur T. Vanderbilt, Frank J,Hogan, Charles A. Beardsley, Jacob M.Lashly, Walter A. Armstrong, GeorgeMaurice Morris, Joseph W. Henderson,David A. Simmons, and Willis Smith thatinterest has continued reaching out intoall parts of the country, resulting in in­valuable contributions toward this finalresult. In this connection I want tomention with especial appreciation the

service of Mr. Carl McFarland, chairmanof the special administrative law com­mittee of the American Bar Association,and his associates on that committee,Messrs. Albert Ewing, Jr., Aaron Ford,Reuben Hall, Ralph M. Hoyt, Charles E.Lane, Harry J. McClean, W. James Mac­intosh, Clarence A. Miller, Roland F.O'Bryen, George Rossman, Mayo A.Shattuck, Julius C. Smith, Sylvester C.Smith, Jr., and Burt J. Thompson. Andto this list I want to add Mr. AshleySellers. who represented the AttorneyGeneral. This legislation has been ex­amined by more different groups of peo­ple than any other I know of, and aremarkable unanimity of attitude hasbeen worked out.

_\s far as I am concerned, I hope thatmuch of this power that is being admin­istered by the Federal Governmentthrough these agencies can be got rid ofentirely and that some of th. rest be sentback into the States. But after that isdone there will remain, of course, neces­sary Federal powers in Federal agencies.This bill seeks to bring the exercise ofthese powers into the general pattern ofdemocratic government. In framingthis bill there has been caution not toincorporate provisions which would re­duce the efficiency of these agencieswhich must be depended upon to renderimportl'nt public service. It is believedthat has been done. In fact, this bill, itseems generally agreed, goes far in theright direction-as far as we can safelygo, at least until we shall have got theg'1idance of experience. The gentlemanfrom Pennsylvania [Mr. WALTERl and themembers of his cubcommittee have ren­dered a great public service. I hope thebill will be unanimously passed, and with­out amendment.

I very much hope and expect that thisbill will be accepted by the House as ithas been reported by the committee.There is every reason to believe that themodifications of the Senate bill whichare jncorporated in this bill will be satis­factory to the Senate; that there will beearly action by that body; that the Presi­dent will promptly approve; and this im­portant, long-needed legislation will soonbe on the statute books.

Mr. WALTER. Mr. Chairman, I yield2 minutes to the gentleman from Mis­sissippi [Mr. RANKIN].

ICKES THE "OPTOMIST"

Mr. RANKIN. Mr. Chairman, our oldfriend Harold L. Ickes, seems to be g'O­ing "hay wire."

He seems to think he is Secretary ofthe Ex-terior, and is constantly shadow­boxing with himself.

The other night he attended a Negrobanquet downtown and made a speechin which he attacked the white people ofthe South, especially of Mississippi, andmore especially of my congressional dis­trict.

He is quoted as having said that I waselected by only 3 percent of the votersof the district.

Of course, every intelligent man knowsthat in those States where we have noopposition in the general election thevote is always light.

The next day, after his speech, twoNegroes were discussing it out here on

5664 CONGRESSIONAL RECORD~HOUSE MAY 24the streets. One of them said: "Youknow what's the matter wid Mr. Ikus?"

The other one asked, "What you thinkis wrong wid 'im?"

"Well," he said, "he seems to be puffedup wid his own consequences."

The other one said, "You's wrong; Mr.Ikus is just an optomist."

The first one asked: "What is a opth.mist?"

The other one said: "An optomist isa fella 't just don't give a damn whathappens, so it don't happen to him."

The CHAIRMAN. The Clerk will read.The Clerk read, as follows:"Be it enacted, etc., That this act may be

cited as the "Administrative Procedure Act."

With the following committee amend­ment:

Strike out all after the enacting clause andinsert:

"TITLE"SECTION 1. 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 reopeal delegations of authority as provided bylaw. Except as to the requirements of sec­tion 3, there shall 'be excluded from the oper­ation of this act (1) agencies composed ofrepresentatives of the parties or of repre­sentatives of organizations of the parties tothe disputes determined by them, (2) courtsmartial and military commissions, (3) mili­tary ,or naval authority exercised in the fieldin time of war or in occupied territory, or(4) functions which by law expire on thetermination of present hostilities, within anyfixed period thereafter, or before JUly I, 1947,and the functions conferred by the followingstatutes: Selective Training and Service Actof 1940; Contract Settlement Act of 1944;Surplus Property Act of 1944.

"(b) Person and party: 'Person' includesindiViduals, partnerships, corporations,. asso­ciation, or public or private organizations 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 proceeding; but nothing hereinIhall be construed to prevent an agency from"dmitting any person or agency as a party for'Ilmited purposes.

"(c) Rule and rUle making: 'Rule' meansthe whole or any part of any agency state­ment of general or particular applicabUityand future e1l'ect designed to. implement,interpret, or prescribe law or policy or todescribe the organization, procedure, or prac­tice reqUirements of any agency and includesthe approval or prescription for the future ofrates, wages, corporate or financial struc­tures or reorganizations thereof, prices, facili­ties, appliances, services or allowances there­for or of .valuations, costs, or accounting, orpractices bearing upon any of the foregoing.'RUle making' means agency process' for theformUlation, amendment, or repeal of a rule.

"(d) Order and adjUdication: 'Order'means the whole or any part of the finaldisposition (whether affirmative, negative,injunctive, or declaratory in form) of anyagency in any matter other than rule makingbut including licensing. 'AdjUdication'means agency process for the formulation Ofan order.

.. (e) License and licensing: 'License' in­clUdes the Whole or part of any agency per­mit, certificate, approval, registration, char-

tet', membership; statutory exemption. orother form of permIssion. 'Licensing' in­eludes agency process respecting the .grant.renewal, denial, revOcatiOIi, suspension, an·nUlment, .withdraWal, limitation. amend­ment, modification, or conditioning Of alicense.

"(f) Sanction and relief: 'Sanction' in­cludes the whole or part of any agency. (l)prohibition, requirement, limitation, or othercondition aiJectlng the freedom of any per"son; (2) withholding of relief; (3) impOSitionof any form of penalty or fine; (4) destruc­tion, taking, seizu;e, or withholding of prop­erty; (5) assessment of damages, reimburse­ment, restitution, compensatior., costs,charges, or fees; (6) requirement, revoca­tion, or suspension of a license; or (7) tak­ing of other compUlsory or restrictive actlop.'Relief' inclUdes the whole or pai't of anyagency (1) grant of money, assistance, li­cense, authority, exemption, exception, privi­lege, or remedy; (2) recognition of any claim,right, immunity, privilege, exemption, or ex­ception; or (3) taking of any other actionupon the application or petition of, and bene­ficial to, any person.

"(g) Agency proceeding and action:'Agency proceeding' means any agency processas defined in subsections (c), (d), and (e)of this section. 'Agency action' includes thewhole or part of every agency rule, order,license, sanction, relief, or the eqUivalent ordenial thereof, or failure to act.

"PUBLIC INFORMATION"SEC. 3. Except to .t4e extent that there is

involved (1) any function of the UnitedStates reqUiring secrecy In the public Interestor (2) any matter relating, solely to the in­ternal management of an agency-

"(a) Rules: Every agency Shall separatelystate and currently publish In the FederalRegister (1) descriptions of its central andfield organization delegations by the agencyof final authority and the established placesat which, and methods whereby. the publicmay secure Information or make s~bmlttals

or requests; (2) statements of the generalcourse and method by which its functions arechanneled and determined, inclUding thenature and reqUirements of all formal or in­formal procedures available as well as formsand instructions as to the scope and contentsof all papers, reports, or examinations; and(3) SUbstantive rules adopted as authorizedby law and statements of general policy orInterpretations formulated and adopted bythe agency for the gUidance of the public, butnot rules addressed to and served upon namedpersons in accordance with law. No personshall in any manner be reqUired to resortto organization or procedure not so published.

"(b) Opinions and orders: Every agencyshall publish or, In accordance With pub­lished rule, make avallable. to public inspec­tion all final opinions or orders in the adjudi­cation of cases (except those required forgood cause to be held confidential and notcited as precedents) and all rules.

"(c) Public records: Save as otherwise re­quired by statute, matters of official recordshall in accordance with published rule bemade available 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 foreigna1fairs 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 proposed

rule making shall be pUblished in the Fed­eral Register (unless all persons sUbjectthereto are named and either personallyserved or otherWise have actual notice there­of in accordance with law) and Shall include(1) a statement of the time, place, and nature

of public rule-making proceedlnlW (2) refer­ence to the authority under WhlCh'the rule isproposed; and (3) either the terms or sub­stance of the proposec:!. ruie or a descriptionof the SUbjects and issues involved. Exceptwhere notice or hearing is required by statute,this SUbsection shall not apply to interpreta­tive rUles, general statements of policy, rulesof agency organization, procedure, or prac­tice, or in any situation in which the agencyfor good cause finds (and incorporates thefinding and a brief statement of the reasonstherefor in the rules Issued) that notice andpublic procedure thereon are impracticable,unnecessary, or contrary to the pUblic 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 arguments with orwithout opportunity to present the sameorally in any manner, and, after considerationof all relevant matter presented, the agencyshall incorporate in any rules adopted a con­cise general statement of their basis and pur­

.pose. Where rules are required by statuteto be made on the record after opportunityfor an agency hearing, the reqUirements ofsections 7 and 8 shall apply in place of theprovisions of this SUbsection,

"(c) Effective dates: The required pUbli_cation or service of any substantive rule(other than one granting or recogniZingexemption or relieving restriction or inter_pretative rUles and statements of policy)Shall be made not less than 30 days prior tothe effective date thereof. except as otherWiseprOVided by the agency upon good causefound and pUbliShed with the rUle.

"(d) Petitions: Every agency shall accordany interested person the right to petitionfor the issuance, amendment, or repeal Of arule.

UADJUDICATION

':SEC. 5. In every case of adjUdication re­qUIred by statute to be determined on therecord after opportunity for an !lgency hear­ing, except to the extent that there is In­volved (1) any matter SUbject to a SUbse_quent trial of the law and the facts de novoin any court; (2) the selfection or tenure ofan officer or employee of the United Statesother than examiners appointed pursuant tos~ction 11; (3) proceeding in Which deci­SIOns rest solely on inspections, tests, or elec_tions; (4) the conduct of military, naval, orforeign-aiJairs functions: (5) cases in whiChan agency is acting as an agent for a COurt.and (~) the certification of employee repre:sentatives-

"(a) Notice: Persons entitled to notice ofan agency hearing shall be timely Informedof (1) the time, place, and nature thereOf'(2) the legal authority and jurisdiction un~der which the bearing is to be held; and(3) the matters of fact and law assertedIn insts:nces in Which private persons ar~the !?ovmg parties, other parties to the pro­ceedmg shall give prompt notice of "isSUescontroverted in fact or law; and in other in_s~ances agenCies may by rule reqUire respon_SIve pleading. In fixing the times and placesfor hearings, due regard shall be had for theconvenience and necessity of the parties ortheir representatives.

"(b) Procedure: The agency shall affordall interested parties opportunity for (1) thesubmission and consideration of facts, argu_ment, oiJers of settlement, or proposals ofadjustment where time, the nature of theproceeding, and the pUblic interest permitand (2) to the extent that the parties ar~unable so to determine any controversy byconsent, hearing, and decision upon noticeand In conformity with sections 7 and 8.

"(c) Separation of functions: The sameofficers who preside at the reception oteVidence pursuant to sectfon 7 shall makethe recommended decision or initial decision

1946 CONGRESSIONAL RECORD-HOUSE 5665required by section 8 except where such offi­cers become unavailable to the agency. Saveto the 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;nor shall such officer be responsible to orsUbject to the supervision or direction of anyofficer. employee, or' agent engaged In theperformance of Investigative or prosecutingfunctions for any agency. No officer, e~­

ployee, or agent engaged In the performanceof ir vestigatlve or prosecuting functions forany agency in any case shall, in that or afactually related case, participate or advisein the decision, recommended decision, oragency review pursuant to section 8 exceptas Witness or counsel in public proceedings.This subsection shall not apply in determin­ing applications for initial licenses or toproceedings involving the validity or appli­cation of rates, facilities, or practices of pub­lic utilities or carriers; nor shall it be appli­cable in any manner to the egency or anymember or members of the body comprisingthe 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 uncertainty.

"ANCILLARY MATTERS

"SEC. 6. Except as otherwise provided Inthis act-

"(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 orderlycondUct of pUblic ousiness permits, any In­terested person may tlPpear oefore anyagency or Its responsible officers or employeesfor tbe presentation, adjustment, or deter­mination of any Issue, request, or controversyIn any proceeding (interlocutory, summary,or otherwise) or In connection with anyagency function. Every agency shall pro­ceed 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 deily to any person whoIs not a lawyer the right to appear for orrepresent others before any agency or In anyagency proclleding.

"(b) Investigations: No process, reqUire­ment of a report, inSpection, or other Inves­tigative act or demand shaH 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 nonpublicInvestigatory proceeding the witness may forgood cause be limited to Inspection of theofficial transcript of his testimony.

"(c) Subpenas: Agency sUbpenas author­Ized bylaw shan be issued to any party uponrequest and, as may be required by rules ofprocedure, upon a statement or showing ofgeneral relevance and reasonable 'scope of theevidence sought. Upon contest the courtshall sustain My 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 the wit­ness' or the production of the evidence, ordata within a reasonable time under penalty

.of punishment forcol'ltempt 'in cafleofcon­tumaclous failUre to comply.

" (d) Denials: Prompt notice shaH be givenof the denial in Whole or in part of any writ­ten application, petition, or other request ofany interested person made In connectionWith any agency proceeding. Except inaffirming a prior denial or where the denialis self-explanatory, such notice shall be ac­companied by a simple statement of proce­dural or other gro\lnds.

"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 more ex­aminers appointed as provided in this act;but nothing In this act Shall be deemed tosupersede the conduct of specified classes ofproceedings 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 decisions in conformitywith section 8 shall be conducted In an im­partial manner. Any such officer may atany time withdraw If he deems himself dis­qualified; and, upon the filing In good faithof a timely and sufficient affidavit of per­sonal bias or disqualification of any suchofficer, the agency shall determine the matteras a part of the record and decision in thecase.

"(b) Hearing powers: Officers presiding at. hearings shall have authority, SUbject to the

published 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 receiverelevant evidence, (4) take or cause deposi­tions to be taken whenever the ends ofjustice would be served thereby, (5) regUlatethe course ot the hearing, (6) hold conter­ences for the settlement or simplification ofthe Issues by consent of the parties, (7) dis­pose of procedural requests or similar mat­ters, (8) make decisions or recommend de­cisions in conformity with section 8, and(9) take any other action authorized byagency rule consistent with this act.

"(c) Evidence: Except as statutes other­wise prOVide, the proponent of a rule ororder shall have the burden of proof. Anyoral or. documentary evidence may be re­ceived, but every agency shall as a matterof policy prOVide for the exclusion of Irrele­vant, Immaterial, or unduly repetitious evi­dence and no sanction shall be imposed orrule or order be Issued except upon con­sideration of the Whole record or such por­tions thereof as may, be. cited by any partyand as supported by and in accordance Withthe reliable, probative, and SUbstantial evi­dence. Every party shall have the right topresent his case or defense by oral or docu­mentary evidence, to submit rebuttal. evi­dence and to conduct, such cross-examina­tion ~ may be reqUired for a full and truedisclosure of the facts. In rUle making ordetermining 'claims for money or benefits orapplications for initial licenses any agencymay, where the interest of any party, willnot be prejudiced thereby, adopt proceduresfor the submission of all or part .of the evi­dence in written form.

"( b) Record: The transcript of testimonyand exhibits, together with all papers andrequests filed in the proceeding, shall con­stitute the exclusive record for decision InaccordltIlce with section 8 and, upon pay­ment of lawfully prescribed costs, shall bemade available to the parties. Where anyagency decision' rests on official notice of amaterial fact. not appearing in the eVidence.in the record; any .party shalLon timely re,.quest be attQ1'dedan opportunitytosh~w thecontrarY· .

"DECISIONS

"SEC.. 8. In cases in Which a hearing isreqUired to be conducted in conformity withsection 7-

"(a) Action by subordinates: In cases inwhich the agency has not presided at thereception of the rVidence, the officer who'presided (or, in cases not subject to sub­section (c) of section 5, any other officer orofficers qualified to preside at hearings pur­suant to section 7) shall Initially decide thecase or the agency shall reqUire (in specificcases or by general rule) the entire recordto be certified to it for Initial decision,Whenever such officers make' the 'Initial de­cision and in the absence of either an ap­peal t.o the agency or review upon motion ofthe agency within time provided by rule,such decision shall without further proceed­ings then become the decision of the agency,On appeal from or review of the initial de.cisions of such officers the agency shall, ex­cept as it may limit the Issues upon noticeor by rule, have all the powers which it wouldhave in making the initial decision. When­ever the agency makes the initial decisionwithout haVing presided at the reception ofthe evidence, such officers shall first recom­mend a decision except that in rUle makingor determining applications for initial li­censes (1) in lieu thereof the agency mayissue a tentative decision or any of its re­sponsible officers may recommend a decisionor (2) any such procedure may Oe omittedin any case In whiCh the agency finds uponthe record that due and timely executionof its function imperatively and unavoidablyso requires.

"(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 opportunity tosubmit for the consideration of the officersparticipating In such decisions (1) proposedfindings and conclusions, or (2) exceptions tothe decisions or recommended decisions otsubordinate officers or to tentative agencydecisions, and (3) supporting reasons forsuch exceptions or proposed findings or con­clusions. The record shall show the rulingupon each such finding, conclusion, or ex­ception presented. All decisions (includinginitial, recommended, or tentative decisions)shall become a part of the. record and in­clude a statement of (1) findings and con­clusions, as well lis the reasons or tasis there­for, upon all the material issues of fact, law,or discretion presented on the record; and (2)the appropriate rule, order, sanction, relief,or denial thereof,

"SANCTIONS AND POWERS

"SEC. 9. In the exercise of any power orauthority-

"(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 ap­plication is made for a license required bylaw the agency, with due regard to the rightsor priVileges of all the interested parties oradversely affected .persons and with reason­able dispatCh, shall set and complete anyproceedings required to be conducted pur.suant to sections 7 and 8 of this act or otherproceedings required by law and shall makeits decision. Except in cases of w11lfulness orthose in which public health, interest, orSafety reqUires otherwise, no withdrawal, sus­pension, revocation, or .annulment of anylicense 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 licensee by the agency in writing andthe licensee shall have 'been accorded 0PP(lr'­tunity to demonstrate or achieve complianceWith. all la.wful req\lirements. In any casE>

5666 CONGRESSIONAL RECORD-HOUSE MAY 24in which the licensee has, in accordance withagency rules. made timely and sufficient ap­plication for a renewal or a new ltcimse. nolicense with reference to any activity otacontinulng nature shall expire until such ap- ,plication shall have been tlnally determinedby the agency.

."JU»ICLU. REVIEW

"SEc. 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 personsutreringlegal wrong because of any agency action, oradversely affected or aggrieved by such actionwithin the meanIng at any releVant statute,shall be entitled to jUdicial review thereof.

"(b) Form and venue of action: The formof proceedJ.1lg for Judicial review sball 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 Judg­ments or writs at prohibitory or mandatoryinjunction or habells corpus) In any court ofcompetent Jurisdiction, Agency action shallbe sUbject to judicial review In civlI orcriminal proceedings for judicial enforce­ment except to the extent that prior, ade­quate. and exclusive opportunity for sucb re­View is ·provided by Jaw. .

"(c) Reviewable acts: Every agency actionmade reViewable by. statute and every finalagency action for which there Is no otheradequate remedy in any court shaH be sub­Ject to Judicial review. Any preliminary, pro­cedural, or IntermedIate .agency action orruling not directly reviewable'shall be sUbjectto revIew upon the review of the tinal agencyaction. Except as otherwise expressly re­quired by statute, agency action otherwisefinal shall be tinal tor the purposes of thIssubsectIon whether or nOt there has beenpresented or determfnedany appUcatfon fora declaratory order, for any form of recon­sideration, or (unless the agency otherwtserequires by rule and prOVides that the ac­tion meanwhile shall be inoperative' for anappeal to superior agency authority.

"Cd) InterIm relief: PendIng JUdicial re­View any agency is authorized; where It findsthat JustIce SO reqUires, to postpone thee!fectlve date of any action taken by it. Up­on such conditions as may be required andto the extent necessary to prevent irreparableinjury, every revieWing court (Including everycourt to whIch a case may be taken on ap­peal from or upon appl1catlon for certiorari orother writ to a reVieWing court) Is author­Ized to Issue all necessary and appropriateprocess to postpone the e!fective date of anyagency action or to preserve status or rightspending conclusion ot the reView proceedings.

"Ce) Scope of review: So far as necessaryto decision and where presented the reView­ing coUrt shall decide all relevant questionsof law. interpret constitutional and statu­tory provisions, and determine the meaningor applicablllty of the terms of any agencyaction. It shall fA) compei agency actionunlaWfully withheld or unreasonably de­layed; and (B) hold unlawful and set asideagency action, findings, and conclusionsfound to be (1) arbitrary. capricious. an abuseof discretion, or otherWise not in accordanceWith law; (2) contrary to constitutional right,power, priVilege. or immunity; (3) in excessof statutory Jurisdiction, authority, or llmi­tatlons. or short of statutory right; (4) With­out observance of procedure required by law;(5) unsupported by substantial eVidence Inany case subject to the requirements of sec­tions 7 and 8 or otherwise reviewed on therecord of an agency hearing provided bystatute; or (6) unwarranted by the facta tothe extent that the facts are SUbject to trialde novo by the reviewing coW't. In makingthe foregoing determinations the court shallreview the Whole record or such portionsthereof as may be cited by any party, and due

account shall be taken of the rute of pr&Judi­cial error.

-J!l{!lMl'NEIlS

"SEC. Il. SUbject to the civiI-service andother laws to the extent not inconsistentWith this act. there shall be appoiIited byand for each agency as many qualified andcompetent examiners as may be necessaryfor proceedings pursuant to sections 7 and 8,who shall be assigned to cases in rotation sofar as practicable and shall perform nodutl.es Inconsistent With their duties andresponsibilities as examiners. Examinersshall be removable by the agency In whichthey are emplC'yed only for good cause estab­llshed and determined by the CIvil BerviceCommisslo!l (hereinafter. called the Commis­sion) after opportunity for hearing and uponthe record thereof. EXaminers shall receivecompensation prescribed by the CommissionIndependently of agency recommendations orratings and In accordance with the Classitl­cation Act of 1923, as amended, ex.cept thatthe provisions of paragraphs (2) and (3) ofsubsection (b) of section 7 of said act, asamended, and the prOVisions of sectlon 9 ofsaid act, as amended, shall not be applicable.Agencies occasionally or temporarily Insuf­ficiently sta1fed may utilize examiners se­lected by the Commi8&ion from and with theconsent of other agencies. For the purposesof this section, the. Commi.s&lon Is author­ized to make Investigations, require reportsby agencies, IsSUe reports, including an an­nual report to the. Congress. promulgaterUles, apPo!nt such advisory committees asmalJ be deemed necessary, recommend legIs­lation, subpena Witnesses or records. and paywitness. fees as established for the UnitedStates courts.

"CONBTROC'l'ION AND ElTECT

"8I;:c. 12. Nothing In this act shall be heldto diminIsh the constitutional rights of anyperson or to lfmft or repeal additional re­quirements imposed by statute or otherwiserecognIZed by law. Except as otherwise re­quired by law, al! requirements or priVilegesrelating to eVidence or procedure shall applyequally to agencIes and persons. If anyprovision of this act or the applfcatlon there­of is held InvaIfd, the remainder of this actor other appIlcatioDlr of such provision shallnot be Wfected. Every agency is granted allauthority necessary to comply with the re­quirements of this act through the Issuanceof rules or otherwise. No subsequent legis­lation shall be held to supersede or modifythe prOVisions of this act except to the extentthat such legislation shall do so expressly.This act ~hall take e!fect 3 months after Itsapproval except that sections 7 and 8 shalltake effect 6 months after such approval, therequirement of the seiectlon of examinerspursuant to section 11 shall not become ef­fective ·,.m'-jl 1 year atter such approval, andno procedural requirement shall be manda­tory as to any agency proceeding Initiatedprior to the elfectlve date of such require­ment."

Mr. SUMNERS of Texas (during thereading of the amendment>. Mr. Chair­man, I ask unanimous consent that thefurther reading of the amendment maybe dispensed with; that it be printed inthe RECORD; and that any section of itmay be subject to amendment.

The CHAIRMAN. Is there objectionto the request of the gentleman fromTexas?

There wall no objection.Mr. KEFAUVER. Mr. Chairman, I

offer an amendment.The Clerk read as fonows:Amendment·offered by Mr. :KEF!lvvn: On

page 30. line 15, after the perIod, insert "anymember of the bar who Is in gOOd standing

and who has been admitted to tbe bar of theSUpreme Court of the United States or of thehigbeatOOW't of tbe state of hi.s or her resi­dence shall be eflgible to practice before anyagency: Provided.. however. That an agencyshall for gqod cause be authorized by orderto suspend or deny the rIght to practice beforesuch agency."

Mr. KEFAUVER. Mr. Chairman, Idiscussed this amendment a few minutesago. I think this is an important ques­tion which we ought to settle now. ThisbilI has to. go to conference and somechanges will have to be made. I do notsee how there can be very much objectionto theinc1usion of some provision rela­tive to the establishment' of a uniformsystem of practicing before the agencies.As the situation now eXists, some agen­cies permit laymen to practice; some per­mit lawyers; some few agencies requirea person to register ana be introduced.I think in one or two agencies they re­quire a person to take some kind of imexamination before being admitted. Inthis country there is no reason in thepractice before the agencies of the Unitedstates Govemment why a member ofthe bar who is in good standing and whohas been admitted to the Supreme Courtof the United states or to the highestcourt in his or her State of residenceshOUld not prima facie be eligible topractice before any agency of the Gov­ernment.

Mr. GWYNNE of Iowa. Mr. Chair­man, will the gentleman yield?

Mr. KEFAUVER., I yield.Mr. GWYNNE of Iowa. Is that not

provided for in section 6? The appear­ance is there provided for. Someone whois a lawyer and also someone who is nota lawyer.

Mr. KEFAUVER. I will say to the gen­tleman I have stUdied section 6 with thatin mind. I think in the committee thatwe really intended to let the personchoose his own lawyer to go with himbefore the agency and that every law­yer in good standing shOUld be accepted.But we still do not say that that agencyshall be required to accept him, if heis in good standing in the State of hisresidence or that he is entitled to prac­tice. The agencies still might have ar­tificial barriers or rules which wouldkeep him from practicing. I think thisshould be included so that when the mat­ter goes to conference it can be ironedout if my proposal is not entirely ac­ceptable.

Mr. MAY. Mr. Chairman, will the gen­tleman yield?

Mr. KEFAUVER. I yield.Mr. MAY. I believe that any man who

holds a license to practice law in anyState ought to be eligible to practice be­fore these agencies. I am afraid the gen­tleman's amendment would limit it tothose who are authoriZed to practice be­fm-e the supreme court, or the court offinal resort in the State in which he lives.There are many members of the I;lar whoare admitted to practice in the State whohave not been admitted to practice beforethe supreme court in their own State.

Mr. KEFAUVER. Of course, if theyare entitled to practice before the Su­preme Court of Kentucky, they would nothave to be admitted to practice before

1946 CONGRESSIONAL RECORD-HODSE 5667the Supreme Court of the United Statesbefore they could practice before theagency. I do not think this is too muchof a requirement to ask of these people,to say that they be admitted to practicein the highest court in their State. Ofcourse, if the agency now admits lay­men or licensed lawyers who have notbeen admitted to the Supreme Court ofthe United States or to their State su- •preme court to practice before the agencythey would continue to do so. Thisamendment does not say that only cer­tain lawyers shall be so entitled. It onlyprovides for a class who shall have anabsolute right to practice. If the agencyallows others, they would not be eXcludedby this amendment.

Notice. also, the amendment gives theagency a right to suspend or deny theright if it has good reason 'for so doingsuch as misconduct or unethical methods.

Mr. HANCOCK. Mr. Chairman, willthe gentleman 3-"ield?

Mr. KEFAUVER. I yield to the gen.tleman from New York, who hasintro­duced legislation heretofore-to cover thispoint.

Mr. HANCOCK. I did, in the Seventy­eighth and again in the Seventy-ninthCongress. I know it is controversial. Idislike to jeopardize this bill by puttingon an amendment which I regard as con­troversial, which may possibly cause de­lay, and may defeat the bill. I haveheard from a number of these agenciesand departments downtown strongly op­posed to my bill. Let us bring that outas a separate proposition. Let us havehearings on it and let us come to theHouse with that definition. Let us notmuddy UP the waters on this bill. Wehave got this bill in shape to be passedand approved by the President and tobecome law. I am very mu.::h opposed tothe gentleman's amendment, although IProposed it myself as a separate bill.

Mr. KEFAUVER. . I do not think thereis anything so complicated about it that,it cannot be worked out in c'lnference.Perhaps this is not exactly the right lan­guage but there should not be difficultyin working out a satisfactory provision.

Mr. DONDERO. Mr. Chairman, willthe gentleman yield?

Mr. KEFAUVER. I yield.Mr. D0NDERO. lwas lInpressed with

the gentleman's amendment, but I roseto ask· this question: What happens inthe case of an attorney admitted to thebar within the District of Columbia butwho has no certificate either before thehighest court of the State of his resi­dence or of the United States SupremeCourt?

Mr. KEFAUVER. Of course, membersof the bar of the District of Coiumbiaarc usually members of the United statesSupreme Court. If they are not theycould still practice before the agenciesif they can now.

Mr. DONDERO. They must .be ad­mitted here?

Mr. KEFAUVER. Yes.The CHAIRMAN. The time of the

gentleman from Tennessee has' expired.Mr. FORAND. Mr. Chairman, I ask

unanimous consent that the gentlemanm.ay have 5 additional minutes.'.

The CHAIRMAN. Is there objectionto the request of the gentleman fromRhode Island?. Mr. WALTER. Mr. Chairman, I

object.The CHAIRMAN. Objection is heard.

. Mr. WALTER. Mr. Chairman, I risein opposition to the amendment.

It is indeed unfortunate that the gen­tleman. from Tennessee [Mr. KEFAUVER]brings up this very important and com­plicated question at this late moment.After all, the committee having thismeasure under consideration for manymonths, considered all phases of thisproblem. As the distinguished gentle­man from New York [Mr. HANCOCK], hassaid, what the ,gentleman from Tennes­see [Mr. KEFAUVER], proposes is some-

,thing that shOUld be the subject matterof separate legislation.

I would like to call the attention of theHouse to the languag:J with respect toeligibility:

Every member shall be accorded the rightto appear in person or by or with counsel-

Now that is mandatory-or other duly qualified representative in anyagency proceeding.

It certainly seems to me that anyoneduly qualified may under this languageappear to practice before any agency;and I am afraid that if we set up thestandards suggested by the gentlemanfrom Tennessee that instead of makingit necessary for an agency to permitanyone duly qualified to appear, wemight exclude people who have for thepurpose of particular litigation beenretained.

Mr. MATHEWS. Mr. Chairman, willthe gentleman yield?

Mr. WALTER. I yield.Mr. MATHEWS; I am interested to

know the gentleman's own definition ofthe word "counsel." It seems to me itmight not be limited to legal counsel, orit might include legal counsel and some-thing else. .

Mr. WALTER. The gentleman hassuggested one of the fields into which wemight well stray. What the committeemeant by that was a member of the bar.

Mr. MATHEWS. The bill does notsay so.

Mr. FORAND. Mr. Chairman, will thegentleman yield?

Mr. WALTER. 1 yield.Mr. FORAND. Is it the intent of the

committee that because a person is nota member of the bar he would not be .permitted to appear before an agency?

Mr. WALTER. Of course not, andwesay so in the bill. We have taken care ofcertified public accountants and otherexperts who have been practicir;g foryears before particular agencies.. Mr. FORAND. In other words, theyneed not be lawyers.

Mr. WALTER. That is right.Mr. SUMNERS of Texas. Mr. Chair­

man, I move to strike out the last word.Mr. Chairman, I very much hope we

will not adopt this proposed amendment.It is now demonstrated that it is highlycontroversial.

This bill hasbeen worked on fora verylong time.Ma.ny ma,py groups of people

have contributed and are tremendouslyinterested in it, the whole country is andI know most of us on the committee hopewe can vote this bill out without amend­ment and let it gO back to the Senatewhere there is every reason to expect thefinal act of its cOngressional progress willbe completed the President will sign itand it will be a part of the law of theland.

Mr. JENNINGS. Mr. Chairman, I risein opposition to the pro forma amend­ment

Mr. Chairman, with all due deferenceto my distinguished and learned friendfrom Tennessee, 1 am inclined to believethat his amendment is tantamount to .­throwing a monkey wrench into the ma­chinery, putting sftnd in the bearingsand water in the gasoline. As I recall,when this measure was before the- com­mittee the gentleman did not suggestthis amendment.

It reminds me of the old fellow withwhom I was boarding once when I wasteaching school who had been in thelegislature, and he was so entrancedwith his experience in that body that Ireally believe that if he had been stand­ing on the threshold of the new Jeru­salem and were about to be ushered inand somebody had offered him anotherseat in the Tennessee Legislature hewould have turned his back on Paradiseand gone back to the legislature.

Mr. KEFAUVER. Mr. Chairman, willthe gentleman yield?

Mr. JENNINGS. No; not now; I amnot in a yielding mood.

He once asked me this question, "Ifyou were a member of the legislatureand wanted to kill a bill, what would youdo to kill it?"

"Well," I said, "I would make a speechagainst it; 1 would talk to my colleaguesand suggest the reasons why it shouldbe rejected and try to get them to helpme kill it."

"Oh," he said, "you don't know howto kill a bill."

I asked, "Uncle John, what would youdo?" He said, "IntroduGe an amend­ment to kill the constitutionality of thebill."

My friend here has used this methodto stop the passage of this long-neededlegislation by offering an amendmentthat will make it obnoxious and perhapslead to its veto by the President.

Let us vote down the amendmentoffered by my good friend fromTennessee.

Mr. SABATH.· Mr. Chairman, I moveto strike out the last two words.

Mr. Chairman, the gentleman who just .preceded me criticized the gentlemanfrom Tennessee because he ·did not ap­pear before the Judiciary Committee andoffer his amendment.

Mr. KEFAUVER. Mr. Chairman, willthe gentleman yield?

Mr. SABATH. I yield.Mr. KEFAUVER I tried to get my

friend from Tennessee to yield to say thatfor many years along with the gentlemanfrom New York, [Mr. HANCOCK], I havehad bills pending on this very matter. Ihappen to be a member of the subcom­mitte and ta.lked about this proposal with

5668 CONGRESSIONAL RECORD-HOUSE MAY 24the chairman of the subcommittee. Thegentleman from Tennessee not being a.member of the committee, of course,would not know that, and I am sorry thathe opposes the anIendmimt.

Mr. SABATH. Mr. Chairman, I amnot a member of the committee that re­ported this splendid bill which I believeshould pass by unanimous vote. How­ever, I have great respect for and con­fidence in the gentleman from Tennessee.If he bas not been before the JudiciaryCommittee and did not offer this amend­ment to that committee, it must be theonly committee he did not appear beforea.sking for legislation which he believes is·in the interest of the people. Heis a mostactive member, he pOSsesses great intelli­gence and ability and deserves tbe appre­ciation of the Members of this House. Itherefore regret that the gentleman whopreceded me should criticize and makepoint of the fact that the gentleman fromTennessee was not· present and did notoffer the amendment. He appears beforethe Rules Committee very often. perhapsmore often than any other member, andevery time he comes before that commit­tee he appears in the interest of legisla­tion that is for the benefit of the masses,in the interest of good government and inthe interest of good administration.

The CHAIRMAN. The question is onthe amendment ollered by the gentle­man from Tennessee [Mr. KBPAUVERI tothe committee amendment.

The amendment to the committeeamendment was rejected.

Mr. WALTER. Mr. Chairman. on page28 there is a typographical error. Inline 3, after the word "the" the word"selfection" should be changed to "se­lection," I ask unanimous consent thatthe correction be made.

The CHAIRMAN. Is there objectionto the request of the gentleman fromPennsylvania?

There was no objection.Mr. WALTER. Mr. Chairman. on page

34. line 5. the section should be (d>, not(b) . I ask unanimous consent that thatcorrection be made.

The CHAmMAN. Is there objectionto the request of the gentleman fromPennsylvania?

There was no objection.The CHAIRMAN. The question is on

the cOmmittee amendment.The committee amendment was agreed

to.The CHAIRMAN. Under the rule, the

Committee rises.Accordingly the Committee rose; and

the Speaker having resumed the chair,Mr. SMITH of Virginia, Chairman of theCommittee of the Whole HOILSe on theState of the Union, reported that thatCommittee having had under considera­tion the bill (S. 7) to improve the ad-.ministraton of justice by prescribing fairadministrative procedure, pursuant toHouse Resolution 615, he repOrted thebill back to t~ House witb an amend­ment adopted by the Committee of theWhole.

The SPEAKER. Under the rUle, theprevious question is ordered.

The question fa on th~ amendment.The amendment was agreed to.

The SPEAKER. The question is onthe engrossment and third reading ofthe bill.

The bill was ordered to be engrossedand're.ad a third time and was read thethird time.

The SPEAKER. The question is onthe passage of the bill.

The bill was passed.A mOtion to reconsider was laid OIl

the table.EXTENSION OF REMARKS

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

Mr. TABER asked and was given per­mission to extend his remarks in theREOORD and include a letter he wrote tothe President of the United States andto the Attorney General.

SPECIAL OIivim ORANTED

Mr. HOLIFIELD. Mr. Speaker, I askunanimous consent that on Monday next,at the conclusion of the legislative pro­gram of the day and following any spe­cial· orders heretofore entered, I may. bepermitted to address the House for 30minutes.

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

There was no objection.EXTENSION OF REMARKs

Mr. HOBBS. Mr. Speaker, I askunanimous consent to extend my re­marks at the point in the RECORD whereI got permission from the committeeand to include therein a letter and dif­ferent indexes from the Attorney Gen­eral of the United States.

The SPEAKER. Is there objection tothe request of the eentleman trom Ala­bama?

There was no objection.Mr. D'ALESANDRO asked and was

given permission to extend his remarksin the RECORD and include a letter hewrote to Gen. Omar Bradley. also letterhe wrote to a legislative committee ofthe House and its reply thereto.

Mr. SASSCER asked and was givenpermission to extend his remarks in theRECORD and include an essay which wassubmitted in the Nation-Wide "Foodplank for peace."

PROORAM FOR NEXT WEEK

Mr. MICHENER. Mr. Speaker, I askunanimous consent to proceed for 1minute.

The SPEAKER. Is tbere objection tothe request of the gentleman fromMichigan?

There was no objection.Mr. MICHENER. I do this for the

purpose of asking the majority leaderwhat the program for tomorrow and nextweek will be?

Mr. McCORMACK. There will be nolegislation tomorrow. I feel, however,that we ought to meet tomorrow.

Monday is District Day. One bill, H. R.6265, is on the calendar. That is thebill that came up 2 weeks- ago, and Iunderstand that there will be no objec­tion to it. If the stock-pile bill is dis­posed of todaY there will be no furtherlegislation on Monday,

Tuesday we will hold memorial exer­cises for the deceased Members, andthere will be no legislation that day.

Wednesday we will take up the thirdurgency deficiency bill, then House Con­current Resolution 148, and then H. R.2871, the Alaskan International HighwayCommission.

Thursday is Memorial Day, and therewill be no legislation on that day.

Friday we will take up H. R. 5674, abill relating to protection work in con­nection with Yuma and Boulder Dam.

That is the program for next week.Mr. MICHENER. With reference to

tomorrow. as I understand. we will be insession tor the purpose of being availableif the President desires to send any re­quest to the Congress, for legislationdealing with the terrible strike situationprevailing in the country.

Mr. McCORMACK. We will be in ses­sion tomorrow. I cannot state that it isfor that reason. We will be in sessiontomor-row becaILSe I think it is well for usto be in session.

Mr. MICHENER. It is not usual to siton Saturday, and in case the Presidentdoes not take judicial notice· of the ses­sion, I hope that the distinguished ma­jority leader will advise the Presidentthat the House will be in session tomor­row and will be glad to receive any mes­sage dealing with this terrible strikesituation.

Mr. McCORMACK. The suggestionsof the gentleman from Michigan arealways welcomed. but in this case I thinkthe President will take legislative notice

, of the fact that we are in session. and wewin be in session not because of the rea­son stated by the gentleman, but becausethe leadership feels that we should bein session tomorrow in View, I will agree,of the disturbing and alarming situationthat exists. which we all hope that for­ward-looking, constructive. sane, com,mon sense leadership in the best interestof the country will settle immediately.

Mr. MICHENER. I quite agree withthe gentleman, and we are in exact har­mony. We, on this side, will be glad tobe here, and render any service we canto the administration in dealing withthis critical condition.STRATEGIC AND CRITICAL MATERIALS­

NATIONAL DEFENSE

Mr. SABATH. Mr. Speaker, I call upHouse Resolution 626 and ask for its im­mediate consideration.

The Clerk read the resolution, as fol­lows:

Resolved, That upon the adoptton ot tblsresolution It shall be In order to move tbatthe House resolve itselt tnto the Committeeof the Whole House on the State of theUnion tor the consideration ot the b1ll (S,752) to amend the act ot June 7, 1939 (53Stat. 811). as amended. relating to the 8C­qqtsition of stocks of strategic and criticalmaterials for national de!ense purposes.That after general debate, which shall beconfined to the bill and continue not toexceed 1 hour, to be equally divided andcontrolled by the chairman and the ranklngmInority member ot the Committee on Mil­Itary Mairs. the bill shall be read for amend­ment under tbe 5-minute rule. At the con­clUB10n or the consideration at the bill toramendment, the committee shall rise andreport the blIl to the House With such amend-

5788 CONGRESSIONAL RECORD--SENATE MAY 27

The PRESIDING OFFICER. Eighty­foul' Senators haVing answered to theirnames, a quorum is present.

ADMINISTRATIVE PROCEDURE ACTMr. McCARRAN. Mr. President, will

the Senator from California yield inorder that the Chair may lay before theSenate a message from the House ofRepresentatives with respect to Senatebill No.7?

Mr. DOWNEY. Upon condition thatI shall not lose the floor, I shall be veryhappy to yield.

The PRESIDING· OFFICER laid be­fore the Senate the amendment of theHouse of Representatives to the bill(S. 7) entitled "An act to improve theadministration of justice by prescribingfair administrative procedure," whichwas to strike out all after the enactingclause and insert:

TITLESECrION 1. 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 toreview oy another agency) of the Govern­ment of the United States other than Con­gress, the coUrts, or. the governments of thepossessions,' Territories, or the District ofColumbia. Nothing In this act shall be con­strued to repeal delegations of authority asprOVided by law. Except as to the require­ments of section 3, there shall be excludedfrom the operation of this act (1) agenciescomposed of representatives of the parties orof representatives of organizations of theparties to the disputes determined by them,(2) courts martial and military commissions,(3) military or naval authority exercised inthe field in time of war or in occupied terri­tory, or (4) functions which by law expireon the termination of present hostilities,within any fixed period thereafter, or beforeJuly I, 1947, and the functions conferred bythe follOWing statutes: Selective Trainingand Service Act of 1940: Contract SettlementAct of 1944; SurplUS Property Act of 1944.

(b) Person and party: "Person" includesindiViduals, partnerships, corporations. asSo­ciations, or public or private organizationsof any character other than agenCies."Party" includes any person or agency namedor admitted as a party, or properly seekingand entitled as of right to be admitted as aparty, in any agency proceeding; but nothingherein shall be construed to prevent anagency from admitting any person or agencyas a party for limited purposes.

(c) Rule and rule making: "RUle" meansthe whole or any part of any agency state­ment of general or particular applicabilityand future effect designed to implement,interpret, or prescribe law or policy or todescribe the organization, procedure, or prac­tice reqUirements of any agency, and in-

EllenderFergusonFuiorightGeorgeGerryGreenGuffeyGurneyHartHatchHawkesHaydenHickenlooperHillHoeyHuffmanJohnson, Colo.Johnston, S. C.KnowlandLa FolletteLangerLucas

McCarranMcClellanMcFarlandMcKellarMcMahonMagnusonMeadMillikinMitchellMooreMorseMurdockMurrayMyersO'DanlelO'MahoneyOvertonPepperRadclIffeReedRevercombRooertson

RussellSaltonstallShlpsteadSmIthStanfillStewartTaftTaylorThomas, Okla.Thomas, UtahToOeyTunnellTydingsVandenoergWagnerWalshWheelerWherryWhiteWileyWUsonYoung

clUdes the approval or prescriJ)ticn for tb.~future of rates, wages, corporate or flnanC1.aIstructures or reorganizations thereof.· prices,facilities, appliances, services or all(>wancestherefor or of .valuations.costs, or account~

irig, or practices bearing upon any of theforegoing. "Rule· making" means agencyprocess for the formulation, amendment, orrepeal of a rule.

(d) Order and adjudication: "Order"means the whole or any part of the final dis~

position (Whether affirmative. negative, in­junctive, or declaratory in form) of anyaO'ency in any matter other than rule makingb~t including licensing. "Adjudication"means agency process for the formulation ofan order.

(e) License and licensing: "License" In­clUdes the whole or part Of any agency per~

mit, 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,modificatipn, or conditioning of a license.

(f) Sanction and relief: "Sanction" In­cludes the Whole or part of any agency (1)prohibition, requirement, limitation, or othercondition alfecting the freedom of any per~

son; (2) withholding of relief; (3) imposi­tion of any form of penalty or fine; (4) de­struction, taking, seizure, or withholding ofproperty; (5) assessment of damages, reim­bursement, restitution, compensation, costs,charges, or fees: (6) requirement, revocation,or suspension of a 11cense; or (7) taking ofother compUlsory or restrictive action. "Re­llef" includes the whole or part of any agency(1) grant of money, assistance; license, au­thority, exemption, exception, priVilege, orremedy; (2) recognition of any claim. right,immunity, privilege, exemption. or exception;or (3) taking of any other action upon theapplication or petition of, and beneficial to,any person.

(g) Agency proceeding and action:"Agency proceeding" means any agency proc­ess as defined in subsections (c), (d), and (e)of this section. ·"Agency action" Includesthe whole or part of every agency rule, order,license, sanction, relief, or the equiValentor denial thereof, or failure to act.

PUBLIC INFORMATIONSEC. 3. Except to the extent that there is

.Involved (1) any function of the UnitedStates reqUiring secrecy In the public interestor (2) any matter relating solely to the in­ternal management of an agency-

(a) RUles: Every agency shall separatelystate and currently publish in the FederalRegister-(l) descriptions of its central andfield organization inclUding delegations bythe agency of final authority and the estab­lished places at which, and methods whereby,the pUblic may secure information or makesUbmittals or requests; (2) statements of thegeneral course and method by which itsfunctions are channeled and determined, In­clUding the nature and reqUirements of allformal or Informal procedures available aswell as forms al,ld instructions as to the scopeand contents of all papers, reports, or exami­nations; and (3) SUbstantive rlies adoptedas authorized by law and statements of gen­eral policy or interpretations formUlated andadopted by the agency for the gUidance ofthe pUblic, but not rules addressed to andserved upon named persons in accordancewith law. No person shall in any'manner berequired to resort to organization 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 orders in the ad­jUdication of cases (except those required forgood cause to be held confidential and notcited as precedents) and all rules.

(c) PUbiic records: Save as otherwise re­qUired by statute, matters of official record

. Ilballin aceordance with phbliShed rule bemade aVlUl~le· to persons properly andcUtettly concerned except information heldconfidential for good cause found.

RULE MAKINGSEC. 4. Except to the extent that there is

involved (1) any military, naval, or foreignaffairs function of the Unite~ 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 FederalRegister (Unless all pel'sons sUbject thereto

.are named and either personally served orotherwise have actual notice thereof in ac­cordance with law) Rl1d shaIrinclude (1) astatement of the time, place, and nature ofpUblic rule-making prOCeedings; (2) refer­ence to the authority under which the ruleis proposed; an.d (3) either the terms or SUb­stance Of the proposed rule or a descriptionof the subjects and issues involved. Exceptwhere notice or hearing Is required by stat­ute, this subsection shaIl not apply to in­terpretative rules, general statements ofpolicy. rules of agency organization, pro­cedure, or practice, or In any situation inWhich the agency for good cause finds (andincorporates the finding and a brief state­ment of the reasons therefor in the rulesissued) that notice and pUblic procedurethereon are impracticable, unnecessary, orcontrary to the public interest.

(b) Procedures: After notice required bythis section, the agency shall afford inter;"ested persons an opportunity to partiCipatein the rule making through submission ofwritten .data, views, or arguments with orWithout opportunity to present. the sameorally in any manner: and, after considera­tion of all relevant matter presented, theagency shall incorporate in any rules adopteda con¢ise general statement of their basisand purpose. Where rUles are required bystatute to be made on the record afteropportunity for an agency hearing, the re­quirements of sections 7 and 8 shall applyin place of the provisions of this subsection.

(c) Effective dates: The reqUired publica­tion or serVice of any sUbstantive rule (otherthan one granting o'r recognizing exemptionor relieving restriction or intepretative rulesand statements of polley) 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 of arule.

ADJUDICATIONSEC. 5. In every case of adjUdication re­

quired 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 SUbsequenttrial of the law and the facts de novo in anycourt; (2) the selection or tenure Of anofficer or employee of the United States otherthan examiners appointed pursuant to sec­tion 11; (3) proceedings in which decisionsrest solely on inspections, tests, or elections;(4) the conduct of military, naval, or for­eign-affairs functions; (5) cases in which anagency Is acting as an agent for a court; and(6} the certification of employee representa­tivea-

(a) Kotice: Persons entitled to notice ofan agency hearing shall be timely informedof (1) the time, place, and nature thereof;(2) the legal authority and jurisdiction un­der Which the hearing is to be ·held; and (3)the matters of fact and law asserted. Iniustances in which private persons are themoving parties, other parties to the pro.ceedlng shall give prompt notice of issuescontroverted in fact or law; and in otherinstances agencies lllay by rUle reqUire re­sponsive pleading. ill fiXing the times and

1946 CONGRESSIONAL RECORD-SENATE 5789places for hearings, due regard shall be hadfor the conveFlience and necessity of theparties or their representatives.

(b) Procedure: The agency shall afford allinterested parties opportunity for (1) thesubmission and consideration of facts, argu­ments, offers of settlement, or proposals ofadjustment where time, the nature of theproceeding, and the public Interest permit,and (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 evi­dence pursuant to section 7 shall make therecommended decision or Initial decision re­qUired by section 8 except where such officersbecome unavailable to the agency. Save tothe extent required for the disposition of exparte matters as authorized by law, no suchofficer shall consult any person or party onany fact in issue unless upon notice and op­portunity for all parties to participate; norshall such officer be resp6nsible to or objectto the supervision or direction of any officer.employe, or agent engaged in the perform­ance of investigative or prosecuting func­tions for any agency. No officer, employee, oragent engaged in the performance of investi­gative or Prosecuting functions for anyagency in any case shall, In that ora factuallyrelated case, participate or advise In the de­cision, recommended decision, or agency re­view pursuant to section 8 except as witnessor counsel in public proceedings. This sUb­section shall not apply in determining ap­plIcations for initial licenses or to proceed­ings involving the validity' or application ofrates, facilities, or practices of public utilitiesor carriers; nor shall it be applicable in anymanner to the agency or any member ormembers of the 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 !ssuea declaratory order to terminate a contro­versy or remove uncertainty.

ANCILLARY MATTERS

SEC. 6. Except as otherwise prOVided Inthis act-

(a) Appearance: Any person compelled toappear in person before any agency or rep­resentative thereof shall be accorded the rightto be accompan.ted, represented, and advisedby counselor, if permitted by the agency,by . other qualified representative. Everyparty shall be accorded the right to appearin person or by or with counselor otherduly qualified representative In any agencyproceeding. So far as the orderly conductof public business permits, any interestedperson .may appear before any agency or itsresponsible officers or employees for the pres­entation, adjustment, or determination ofany issl,le, request, orcontroversy in any pro­ceeding (interlocutory, summary, or other­Wise) or in connection with any agency func­tion. Every agency shall proceed with rea­sonable dispatch to conclude any matterpresented to it except that due regard shallbe had for the convenience and necessityof thc parties or their representatlvlls.Nothing herein shall be construed either togrant or to deny to any person who Is not alawyer the right to appear for or representothers before any· agency or in any agencyproceeding.

(b) Investigations: No process, require­ment of a report, inspection, or other investi­gative act 01' demand shall be issued, made, orenforced In any manner or for any purposeexcept as authorized by Jaw. Every personcompelled to submit data or evidence shallbe entitled to retain '01', on payment of law­fUlly prescribed costs, procure a copy ortranscript thereof, except that In a nonpub­lie Investigatory proceeding the Witness mayfor good cause be limited to Inspection ofthe official transcript of his testimony.

(c) Subpenas: Agency subpenas authorizedby law shall be issued to any party uponrequest and, as may be required by rules ofprocedure, upon a statement or showing ofgeneral 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 evidence ordata within a reasonable time under penaltyof punishment for contempt In case of con­tumacious failure to comply.

(d) Denials: Prompt notice shall be givenof the denial In whole or In part of anywritten application, petition, or other requestof any interested person made in connectionwith any agency proceeding. Except in af­firming a Prior denial or where the denialis self-explanatory, such notice shall fie ac­companied by a simple statement of pro­cedural or other grounds.

HEARINGS

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

(a) Presiding officers: There shall preside atthe taking of evidence (1) the agency, (2) oneor more members of the body which com­prises the agency, or (3) one or more ex­aminers appointed as provided In this act;but nothing in this act shall be deemed tosupersede the conduct of specified classesQfproceedings 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 decisions in conformitywith section 8 shall be conducted In an im­partial manner. Any such officer may atany time withdraw if he deems himself dis­qualified; and, upon the filing in good faithof a timely and sufficient affidavit of per­sonal bias or disqualification of any such of­.ficer, the agency shall determine the matteras a part of the record and decision in thecase.

(b) Hearing powers: Officers presiding athearings shall have authority, SUbject to thepublished rules of the agency and Within Itspowers, to (1) administer oaths and affirma~

tions, (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 ~nds of Justicewould be served thereby, (5) regulate thecourse of the hearing, (6) hold conferencesfor the settlement or simplification of theissues by consent of the parties, (7) disposeof procedural requests or similar. matters,(8) make decisions or recommend decisionsin conformity with section a, and (9), takeany other action authorized by agency ruleconsistent with this act.

(c) EVlden,ce: Except as statute!> otherwiseprOVide, the proponent of a rule or ordershall have the burden of proof. Any oralor documentary evidence may be received.but every agency shall as a matter of policyprOVide fOI: the exclusion of irrelevant, im­material, or unduly repetitious evidenceand no sanction shall be imposed or rule ororder be issued except upon considerationof the Whole record or such portions thereofas may be cited by any party and as sup­ported by and in accordance with the re­liable, probative, and substantial evidence.Every party shall have the right to pres'Cnthis case or defense by oral. or documentarYeVidence, to submit rebuttal evidence, andto conduct SUCh cross-examination as maybe required for a full and true disclosureof the facts. In rule making or determin­Ing claims for money or benefits or applica­tions. for initial licenses any agency may,Where the Interes'!; of any party will not .beprejudiced thereby, adopt procedures forthe submission of all or part of the evidenceIn 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 in ac­cordance With section 8 and, upon paymentof lawfully prescribed costs, shalI be madeavailable to the parties. Where any agencydecision rests on official notice of a materialfact not appearing in the evidence in therecord, any party shall on timely requestbe afforded an opportunity to show thecontrary.

DECISIONS

SEC. 8. In cases In Which a hearing is re­quired 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 officeror officers qualified to preside at hearings·pursuant to section 7) shalI Initially decidethe case or the agency shall reqUire (In spe­cific cases or by general' rule) the entirerecord to be certified to it for initial deci­sion. Whenever such officers make. theinitial decision and in the absence of eitheran appeal to the agency or review uponmotion of the agency within time providedby rule, such decision shall without fur­ther proceedings then 'become the decisionof the agency. On appeal from or review ofthe initial decisions of such officers theagency shall, except as It may limit the IS5uesupon notice or by rule, have all the ~ow~rs

which it would have In makIng the mitIaIdecision. Whenever the !,-gency makes theInitial decision without having presided atthe reception of the evidence, such officersshalI first recommend a decision except thatin rule making or determining applicationsfor initial licenses (l) in lieu thereof theagency may issue a tentative decision orany of Its responsible officers may recom­mend a decision or (2) any such proceduremay be omitted In any case in which theagency finds upon the record t~at due. andtimely execution of Its function unperatlvelyand unavoidably so "reqUires.

(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 opportunity tosubmit for the consideration of the officersparticipating in such decisions (1) proposedfindings and conclusIons, or (2) exceptionsto the decisions or recommended decisionsof subordinate officers or to tentative agencydecisions, and (3) supporting reasons forsuch exceptions or proposed findings or con­clusions. The record shall show the rulingupon each such -finding, conclusion, or ex­ception presented. All decisions (Includinginitial, recommended, or tentative decisions)shall become a part of the record and Includea statement of (1) findings and conclusions,as well as the reason3 or basis therefor, uponall the material issues of fact, law, or dis­cretion presented on the record; and (2) theappropriate rUle, order, sanction, relief, ordenial thereof.

SANCTIONS AND POWERS

SEC. 9. In the exerCise of any power or aUd

thority-(a) In general: No sanction shall be Im­

posed or SUbstantive rule or order .be issuedexcept within jUrisdiction delegated to theagency and as authorized by law.

(b) Licenses: In any case in which appli­cation is made for a license required by lawthe agency, with due regard to the rights orprivileges of all the inter!!lsted parties or ad­versely affected persons and with reasonabledispatch, shall set and complete any pro.ceedings required to be conducted pursuantto sections 7 and 8 of this act or other pro­ceedings required by law and shall make itsdecision. Except in cases of willfulness or

5790 CONGRESSIONAL· RECORD-SENATE MAY 27those in which publ1c health, interest, orsafety requires .otherwlse, no withdrawal,suspensIon, revocation, or annulment of anylicense shall be lawful unless, prior to theinstitution of agency proceedings therefor,facts or conduct which may warrant such ac­tion shall have been called to the attentionof the licensee by the agency In writing andthe licensee shall have been accorded oppor­tunity to demonstrate or achieve compliancewith all laWfUl requirements. In any case inwhich the licensee has, In accordance withagency rules made timely and sufflcient ap­plication for a renewal or a new license, nolicense with reference to any activity of acontinUing nature shall expire until suchapplic.ation shall have been finally deter­minec' by the agency.

JUDICIAL REVIEW

SEC. 10. Except so far as (1) statutes pre­.clude 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, oradversely affected or aggrieved by such actionwithin the meaning of any relevant statute,shall be entitled to judiciai .review thereof.

(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 habeas corpus) In any court of com­petent jurisdiction. Agency action shall beSUbject to judicial reView in civil or criminalproceedings for judicial enforcement. exceptto the extent that prior, adequate, and ex­clusive opportunity for such review is/pro.vided 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 prel1minary pro­cedural, or Intermediate agency action orrullng not directly reViewable shall be SUbjectto review upon the review of the final ag-encyaction. Except as otherwise expressively re­qUired by statute, agency action otherwisefinal shall be final for the purposes of thissubsection .whether or not there has beenpresented or determined any application fora declaratory order, for any ferm of recon­sideration, or (unless the agency otherWisereqUires by rule and prOVides that the actionmeanWhile shalI be Inoperative) for an ap­peal to superior agency authority.

(d) Interim relief: Pending judicial re­view any agency is authorized, where it findsthat justice so reqUires, to poMpone the effec­tive date of any action taken by it. Uponsuch conditions as may be reqUired and tothe extent necessary to prevent irreparableinjury, every reviewing court (inclUding everycourt to which a case may be taken on appealfrom or upon application for certiorari orother wrIt to a revieWing court) is authorizedto issue all necessary and appropriate processto postpone the effective date of any agencyaction or to preserve status or rights pendingconclusion of the review proceedings.

(e) Scope of review: So far as necessary todecision and where presented the revieWingcourt shall decide all relevant questions oflaw, interpret constitutional and statutoryprovisions, and determine the meaning orapplicability of the terms of any agencyaction. It shall (A) compel agency actionunlawfully withheld or unreasonably delayed;and (B) hold unlawful and set aside agencyaction, findings, and conclusions found to be(1) arbitrary, mipricious, an abuse of discre­tion, or otherwIse not in accordance with law;(2) contrary to constitutional right, power,priVilege, or immunity; (3) in excess of statu­tory jurisdiction, authority, or limitations, orIlhort of statutory right; (4) without observ­ance of procedure required by law; (5) un-

supported by SUbstantial evidence in anycase SUbject to the reqUirements of sections7 and 8 or otherWise reviewed on the ret:ord ofan agency hearing provided by statute; or (6)unwarranted by the facts to the extent thatthe facts are subject to trial de novo by thereviewing court. In making the foregoingdeterminations the court shall review theWhole record or such portion thereof as·may be cited by any party, and due account·shall be taken of the rule of prejUdicial error.

EXAMINERS

SEC. 11. SUbject to the ciVil-service andother laws to the extent not inconsistentwith this act, there shall be appointed by andfor each agency as many quallfied and com­petent examiners as may be necessary forproceedings pursuant to sections 7 and 8,who shall be assigned to bases in rotation sofar as practicable and shall perf01'lI). noduties Inconsistent With their duties andresponsibllities as examiners. Examinersshall be removable by the' agency In whichthey ar'e employed only for good cause estab­lished and determined by the Civil SerViceCommission (hereinafter called the Commis­sion) after opportunity for hearing and uponthe record thereof. Examiners shall receivecompensation prescribed by the Commissionindependently of agency recommendationsor ratings and In accordance with the Classifi­cation Act of 1923, as amended, except thatthe prOVisions of paragraphs (2) and (3) ofsubsection· (b) of section· 7 of said act, asamended, and the provisions of section 9 ofsaid act, as amended, shall not be applicable.Agencies occasIonally or temporarily insulfi,.ciently staffed may utilize examiners selectedby' the Commission from and with the con­sent of other agencies. For the purposes ofthis section, the Commission is authorized tomake investigations, reqUire reports by agen­cies, issue reports, inclUding an annual re­port to the Congress, promUlgate rUles, ap­point such advisory committes as may bedeemed necessary, recommend legislation,subpena witnesses or records, and pay wit­ness fees as established for the United Statescourts.

CONSTRUCTION AND EFFECT

SEC. 12. Nothing in this act shall be heldto diminish the constitutional rights of anyperson or to limit or repeal additional re­quirements Imposed 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· and persons. If anyprovision of this act or the appllcationthereof is held invalid, the remainder of thisact or other appllcations of such provisionshall not be affected. Every agency isgranted all authority necessary to complywith the requirements of this act throughthe issuance of rules or otherwise. No sub­sequent legislation shall be held to super­sede or modify the prOVisions of this act ex­cept to the extent that such legislation shalldo so expressly. This act shall take effect 3months after Its approval except that sections7 and 8 shall take effect 6 months after suchapproval, the requirements of the selectionof examiners pursuant to section 11 shall notbecome effective until 1 year after suchapproval, and no procedural reqUirementshall be mandatory as to any agency pro­ceeding initiated prior to the effective date ofsuch requirement.

Mr. McCARRAN. Mr. President.some weeks ago the Senate passed Sen:ate bill No.7, which is known as theadministrative procedure bill.

The Senator from Maine will recallthat the bill passed the Senate. after acareful discussion, without a dissentingvote. Let me say that the bill has- beenunder study and consideration for nearly10 years. For about 2 years, while the

present chairman of the Judiciary Com­mittee and other members of that com­mittee !;lave had the matter in hand, avery careful and meticulous study hasbeen made of the whole subject. TheHouse did not in any substantial par­ticular amend the Senate bill. The onlything which the House did was to clarifythe bill in respect to a few -of its pro­Visions. I can best illustrate that by abrief statement from the Attomey Gen­eral as to what the House did. Withoutquoting him at length. the AttomeyGeneral said that he approved theamendments which 'had been made bythe House which were merely explana­tory in nature.

For that reason, Mr. President, ::: movethat the Senate concur in the Houseamendment.

Mr. WHITE. Mr. President, will theSenator yield for an inquiry?

Mr. McCARRAN. I yield.Mr. WHITE. Were the House

amendments submitted to the JUdiciaryCommittee for its consideration, or onlyto individual members of the committee?

Mr. McCARRAN. Only to individualmembers, because we were unable to geta meeting of a quorum of the committee.

Mr. WHITE. Was there a unanimityof approval on the part of the commit­tee members, sa far as the Senatorknows?

Mr. McCARRAN. So far as I person­ally know, yes.

Mr. REVERCOMB. Mr. President,will the Senator yield?

Mr. McCARRAN. I yield.Mr. REVERCOMB. As a member of

the subcommittee which dealt with thebill, I should be very happy if the Sen­ator from Nevada, who is chairman ofthe Judiciary Committee, and who hasso ably steered the legislation thus far,would tell us briefly what are theamendments.

Mr. McCARRAN. Does the Senatorrefer to the House amendments?

Mr. REVERCOMB. Yes.Mr McCARRAN. I shall have to ask

the Senator from California [Mr.DOWNEY] to be patient with me whileI go over the amendments. They areset forth in the report of the Committeeon the Judiciary of the House of Repre­sentatives.

With reference to section I, it is pro­vided that the measure may be cited asthe"Administrative Procedure Act."

In section 2, with reference to defini­tions, the report states, the definitionsapply to the remainder of the bill.

With reference to section 2 (a), underthe title "Agency," it is said, "The word'agency' is defined by excluding legisla­tive, judicial, and territorial authorities"and by including any other "authority"whether or not within or subject to re­view -by another agency. The word"other" was inserted by the House ofRepresentatives.

In connection with section 2 (b), theword "person" and the word "party" aredealt with in the report as follows: "Per­son" is defined to include specific formsof organizations other than agencies."Party" is defined to include anyonenamed. or admitted, or seeking, and en­titled to be admitted, as a party in anyagency proceeding, and so forth.

1946 CONGRESSIONAL RECORD-SENATE 5791With reference to section 2 (c) the

report states:'"RUle" is defined as any agency statement

of general or particular applicability and fu­ture effect designed to implement, interpret,or prescribe law, policy, organization, pro­cedure, or practice requirements and in­cludes any prescription for the future ofrates, wages, financial structure, and so forth."Rule making" means agency process for theformation, amendment, or repeal of therule.

Does the Senator wish me to gothrough each amendment?

Mr. REVERCOMB. Am I to under­stand that all the changes which havebeen made were changes merely in lan­guage and do not materially affect theintent of the act?

Mr. McCARRAN. I assure the Sena­tor that his statement is correct.

Mr. REVERCOMB. ,Then I shall notask for a further explanation.

The PRESIDING OFFICER. Thequestion is on agreeing to the motion ofthe Senator from Nevada.

The motion was agreed to.RECONSIDERATION OF CONFIRMATION OF

NOMINATION OF RICHARD B. McENTIRE,OF KANSAS, TO BE A MEMBER OF THESECURITIES AND EXCHANGE· COMMIS­SION

Mr. WAGNER. Mr. President wiII theSenator Yield? '

Mr. DOWNEY. I am glad to yield if Ido not lose the fioor.

Mr. WAGNER. Mr. President, as inexecutive session I ask unanimous con­sent to enter a motion. to reconsider thevote by which the Senate, on last Sat­urday, confirmed the nomination' ofRichard B. McEntire, of Kan,sas, to be amember of the Securities and ExchangeCommission.

The PRESIDING OFFICER. Is thereobjection?

The Chair hears none.Mr. AIKEN. Mr. President, may I

make a statement without the Senatorfrom California losing the fioor?

Last Thursday I asked the majorityleader if -he would agree to allow con­sideration of the confirmation of the ap­pointment of Admiral Smith to be amember of the Maritime Commission togO over until today, because I wanted tosay something with regard to the nomi­nation. 1 did not wish consideration ofthe nomination to be postponed for thepurpose of opposing the nomination ofAdmiral Smith. I understood the ma­jority leader to say that consideration,of the nomination could go over untiltoday, but evidently an executive ses­sion was held at a time when I was outof the Chamber. I have noticed in theRECORD that the' nomination was con­firmed. I wonder if the Senator wouldbe willing to agree that the vote by whichthe nomination of Admir,al Smith wasconfirmed may be reconsidered.

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

Mr. DOWNEY. I yield. .Mr. OVERTON. As. acting chairman

of the Senate Committee on Commerce, I'Wish to say to the Senator that an inquirywas made, into the qualIfications ofAdmiral Smith. After the hearing wascompleted, the Committee on Commercevoted unanimously fOr confirmation of

the nomination. If it is the purpose ofthe Senator not to oppose the nomina­tion, but to make some observations withregard to it, I believe he could make suchstatement without the Senate recon­sidering the vote by which the nomina­tion was confirmed.

The PRESIDING OFFICER. Does theSenator from Vermont wish to object tothe motion of the Senator from NewYork?

Mr. AIKEN. No; I do not object. Iam merely asking if the vote by whichthe nomination of Admiral Smith wasconfirmed may be reconsidered, becausewhat I have to say concerning the Mari­time Commission should be said in con­nection with the appointment to whichreference has been made by the Senatorfrom New York. I understood the ma­jority leader to say that consideration ofthe nomination might go over untiltoday. There are things which the Sen­ate should know. The Senate shouldknow some things about the MaritimeCommission. It ought to know, if itdoes not know, that there was a dis­crepancy of approximately $6,000,000,­000 in the accounts of the MaritimeCommission up to June 30, 1943, as re­ported by the Comptroller General. Imerely asked that consideration of thenomination of Admiral Smith go overuntil today. I thought it was going over,or I would have sat in the Chamber allthe time the Senate was in session so asto be present when the nomination cameup in the Senate.

Mr. WAGNER. That in no way re­lates to the nomination concerningwhich I have as!{ed unanimous consent.

Mr. AIKEN. Has the Senator made amotion?

Mr. WAGNER. I asked unanimousconsent.

The PRESIDING OFFICER. TheSenator from New York asked for unani­mous consent. and the Chair asked ifthere was objection. The Chair heardnone.

Mr. AIKEN. No; I do not object tothe request of the Senator from NewYork. I believe that the nominationShould come back to the Senate. I be­lieve that it was confirmed under un­usual circumstances.

Mr. WAGNER. I move that thePresident be requested to return thereSOlution of confirmation to the Senate.

The PRESIDING OFFICER. Withoutobjection, the motion is agreed to,

Mr. AIKEN. Will the Senator fromCalifornia yield, so that I may make amotion? I do not wish the Senator tolose the fioor. The motion would be ~

that the Senate reconsider the vote bywhich it confirmed the nomination ofAdmiral Smith.. Mr. DOWNEY. Mr. President, I re­

gret, but I must say to the Senator thatthe motion to which the Senator hasreferred migh~ precipitate a long argu­ment whichwould make it necessary forme to lose the fioor.

Mr. AIKEN. I thank the Senatorfrom California.SETTLEMEt-l'T' OF INDUSTRIAL DISPUTES

AFFECTING THE NATIONAL ECONOMY

The Senate resumed consideration ofthe bill (H. R. 6678) to provide. on a.

temporary basis during the present pe­riod of emergency for the prompt' set­tlement of industrial disputes Vitally af­fecting the national economy in thetransition from war to peace.

Mr. BYRD. Mr. President, the legis­lation which has been proposed by thePresident is along the pattern wherebyGov. William M. Tuck, of Virginia pre­vented a threatened strike in the VirginiaElectric & Power Co. which would haveparalyzed two-thirds of Virginia.

In fact, an agency of the Government,during the preparation of the legislationnow pending, requested my office to sup­ply the various orders that GovernorTuck issued, whereby he, as Governor ofVirginia, and as commander in chief ofthe land and naval forces of the State,on March 29, ordered the drafting intothe active service as members of the.un­organized Virginia Militia the employeesof the Virginia Electric & Power Co.

The action taken by Governor Tuck isnearly identical with the action now pro-­posed by the President. In Virginia thestrike was stopped and no further troublehas occurred.

The action which was taken by t,heGovernor of Virginia is of great public in­terest as it bears directly on the pend­ing legislation. I ask unanimous consentto have printed in the body of the REC-'ORD at this point as a part of my remarks,a copy of the original orders of GovernorTuck and his various announcements, aswell as an opinion of the Attorney Gen­eral of Virginia.

There being no objection, the mattersreferred to were ordered to be :1rinted inthe RECORD, as follows:

COMMONWEALTH OF VIRGINIA,GOVERNOR'S OFFICE,

Richmond, March 29, 1946.

EXECUTIVE ORDER

Pursuant to the provisions of sections 2,3. and 4 of article VI of the Military Code ofVirginia as enacted by chapter 446 of theActs of Assembly of 1930, the undersigned,Wllliam M. Tuck, Governor of Virginia, andas such commander in chief of the land andnaval forces of the State, in order to executethe laws as set out in section 4066 of theCode of Virginia reqUiring the Virginia Elec­tric & Power Co. to provide electric serviceto the people of the State customarily servedby it, does hereby order out a part of theunorganized militia of the State, said partconsisting of the hereinafter designatedpersons:

The follOWing named olficers and employeesof the Virginia Electric & Power Co., maleand not over 55 years of age. residing or,being in the cities and towns Indicated: asshown by the accompanying document whichis incorporated as a part of this order andmarked exhibit 1. '

All of the aforesaid persons are orderedout by draft and the draft in the variouscounties and cities shall be made by theolficers of the Virginia State Guard whosenames and addresses appear from the ac­companying roster which is incorporated ex­pressly as a part of this order, and such sub- 'ordinate olficers and men as they shall desig­nate verbally or' otherwiee.

The persons so called out by this draftshall be organized into'a unit to be knownand designated as the emergency laws exe­cuting unit.

In testimony of the foregoing I have here­unto set my hand as Governor of Virginiaand' commander in, chief Of the land an,dnaval forces of the s.tate,and have caused

1940 'CONGRESSIONAL RECORD-SENATE 5881

III,L

ippine independence ceremonies on July 4.1946.

ENROLLED BILL SIGNED

The message also announced that theSpeaker had affixed his signature to theenrolled bill (S. 7> to improve the ad­ministration of justice by prescribing fairadministrative procedure, and it wassigned by the President pro tempore.COMMITTTEE TO ATTEND THE FUNERAL

OF THE LATE SENATOR GLASS. OFVffiGINIA

The PRESIDENT p~o tempore. Un­der authority of Senate Resolution 273.the Chair appoints as members of thecommittee to attend the funeral of thelate Senator from Virginia, Mr. Glass.the Senator from Virginia [Mr. BYRD].the Senator from Kentucky [Mr. BAll,K­LEY], the Senator from Maine [Mr.WHITE], the Senator from Tennessee[Mr. McKELLAR], the 'Senator from NewMexico· [Mr. HATCH], the Senator fromWisconsin [Mr. LA FOLLETTE], the Sena­tor from Montana [Mr. WHEELER], theSenator from New Hampshire [Mr.BRIDGES], the Senator from New York[Mr. WAGNER], the Senator from Georgia[Mr. RUSSELL], the Senator from Minne­sota [Mr. SHIPSTEAD], and the Senatorfrom Nebraska [Mr. WHERRY).

TRANSACTION OF ROUTINE BUSINESS

By unanimous consent, the followingroutine business was transacted:

EXECUTIVE CO~UNICATIONS,ETC.

The PRESIDENT pro tempore laid be­fore the senate the following letters.which were referred as indicated:

FOREIGN SERVICE BUILDINGS PROGRAMA letter from the Acting Secretary of State,

transmitting a draft of proposed legislationfor the acquisition of buildings and groundsin foreign count..ries for the use of the. Gov­ernment of the United States of AIllerica(with an accompanying paper); to the Com-mittee on Foreign Relations. '

REPORT OF DEPARTMENT' OF JUSTICE

A letter from the Attorney General, .trans­mitting, pursuant to law, a report on theactivities of the Department of Justice for thefiscal year ended June 30, 1945 (with an ac­companying report); to the Committee onthe JUdiciary.REPORT ON ACTIVITIES OF SMALLER WAR PLANTS

CORPORATIONA letter from the Secretary of Commerce.

transmitting, pursuant to law, a report onthe activities of the Department of Commercerelating to functions previously carried outby the Smaller War Plants Corporation andtransferred to the Department of Commercefor the months of February and March 1946(With accompanying papers); to the Com­mittee on Banking and Currency.

DISPOSITION OF ExECUTIVE PAPERSTwo letters from the Archivist of the

United States, transmitting, pursuant to law,lists of papers and documents on the filesof several departments and agencies of theGovernment which are not needed in theconduct of business and have no permanent.value {lr historical interest, and requestingaction looking to their disposition (With ac­companying papers); to a Joint Select Com~mittee on the Disposition of Papers in theExecutive Departmen';~.

The PRESIDENT pro tempor" ap­pointed Mr. BARKLEY and Mr. BREWSTERmembers of the committee on the partof the Senate.

XCII--371

PETITION

The PRESIDENT pro tempore laid be­fore the Senate a copy of a concurrentresolution of the Legislature of the Ter­ritory of Hawaii, favoring an appropria­tion to complete the improvements ofthe harbor and port of Hilo, T. H., whichwas referred to the Committee on Terri­tories and Insular Affairs.

MAINTENANCE OF CONFIDENCE IN THEGOVERNMENT

Mr. CAPPER. Mr. President, I havereceived a telegram from Senator RoyBailey, chairman of the National AffairsCommittee, of the Salina (Kans.> Cham­ber of Commerce, asking that action betaken in Washington for the purpose ofmaintaining confidence in Governmentand respect for it at home and abroad.I ask unanimous consent to have the tele­gram printed in the RECORD and appro­priately referred.

There being no objection, the telegramwas received. ordered to lie on the table,and to be printed in the RECORD, as fol­lows:

SALINA, KANS., May 25, 1946.Senator ARTHUR CAPPER,

Senate Office Building,Washington, D. C.:

In order to establish domestic tranqUillityand justice, promote the general welfare. andpreserve the blessings of liberty for ourselvesand our children, we urge you to do every­thing in your power to end the virtual an,archy that exists in the United States today.We do not believe that any in.divi.dual orgroups of indiViduals shOUld dictate to theGovernment, and for these reasons, and be­cause they are rights guaranteed by the Con­stitution, we are convinced that immediateaction is 'needed to maintain confidence inthe Government itself and respect for it athome and abroad.

SALINA CHAMBER OF COMMERCENATIONAL AFFAIRS COMMITTEE,

Roy F. BAILEY, Chairman.

EXPORTATION OF WHEAT TO MEXICO

Mr. CAPPER. Mr. President, I havereceived an interesting telegram from B.K. Smoot, a leading businessman of Sa­lina, Kans., with regard to the shipmentof wheat to Texas for export to Mexico.I think the telegram is of public interest,and I ask unanimous consent to have itprinted in the RECORD and appropriatelyreferred.

There being no objection, the telegramwas received, referred to the Committ~e

on Banking and Currency, and orderedto be printed In the RECORD, as follows:

SALINA, KANS., May 22, 1946.Senator ARTHUR CAPPER,

Washington, D. C.:Our elevator and other elevators Kansas

City are loading wheat on instructions CCCto go El Paso and Brownsvl1le, Tex., for ex­port to Mexico. This grain acqUired by CCCunder confiscation and bonus program pre­sumably for starving Europeans. The saleis reported 30 cents over celling prices withLathrop Grain Co. acting. as agent of Mexi­can Government. Lathrop was director ofKansas City office of CCC at time stocks of ,grain in hands of grain dealers and millers .was confiscated. How can the AmericanpUblic be expected to respect ceiling priceswhen our Government continually violatesceilings by bontIs payments and sales exceed-.ing ceUings? Please let us end the. war offi­cially, abolish all ce1l1ngs, bonuses. SUbsidies,and get to work~ . '

B. K. SMOOT.

REPORTS OF COMMITTEES

The following reports of committeeswere submitted:

By Mr. O'MAHONEY, from the Committeeon PUblic Lands and Surveys:

S. 1236. A bill to promote the developmentof oil and gas on the public domain and onlands acqUired for the Appalachian NationalForest, and for other purposes: with amend­ments (Rept. No. 1392).

By Mr. TYDINGS, from the Committee onTerritories and Insular AffairS:

S. 2?54. A bill to provide milttary assist­ance to the RepUblic of the Philippines inestablishing and maintaining national secu­rity and to form a basis for participationby that government in such defensive mili­tary operations as the future may require;without amendment (Rept. No. 1393); and

H. R.5453. A bill to authorize certain ex­penditures by the Alaska Railroad, and forother purposes; without amendment (Rept.No. 1394).

By Mr. McCARRAN, from the Committeeon the Judiciary:

H. R. 2788. A bl1l to limit the time duringwhich certain actions .under the laws of theUnited States may be brought; with anamendment (Rept. No. 1395).

By Mr. WALSH. from the Committee onNaval Affairs: .

S. 2133. A bill to amend further the PayReadjustment Act of 1942, as amended; Withamendments (Rept. No. 1396); and

S. 2246. A bill to authorize the Secretary ofthe Navy to acqUire in fee or otherwise cer­tain lands and rights in land on the island ofGuam, and for other purposes; with anamendment (Rept. No, 1397).

PRODUCTION, TRANSPORTATION, ANDMARKETING OF WOOL (REPT. NO.1398)

Mr. O'MAHONEY. Mr. President,from the Special Committee to Investi­gate Production, Transportation. andMarketing of Wool, I ask unanimous con"­sent to report favorably with an amend­ment the bill (S. 2033) to provide sup­port for wool, to. amend the AgriculturalMarketing Agreement Act of 1937 by in­cluding wool as a commodity tc whichorders under such act are applicable, toauthorize the Secretary of Agricultureto fix wool standards, and for other pur­poses. Under the agreement at the timeof the introduction of the bill, I requestthat it be referred to the Committee onAgriculture and Forestry.

The PRESIDENT pro tempore. With­out objection, the bill will be receivedand referred to the Committee on Agri­culture and Forestry as requested by theSenator from Wyoming.

Mr. O'MAHONEY. Mr. President, Iask unanimous consent to submit indi­vidual views of my colleagues, the juniorSenator from Wyoming [Mr. ROBERTSON]and the Senator from Massachusetts[Mr. WALSH]; ·respectively.

The PRESIDENT pro tempore. With­out objection, it is so. ordered.

BILLS INTRODUCED

Bills were introduced, read the firsttime, and, by unanimous consent, thesecond time, and referred as follows:

. By Mr. MEAD: .S.2258. A bill for the relief of the estate

of Mrs. Charles Bath, and others; to theCommittee on Claims.

By Mr. TYDINGS:' .S.2259. A bill to amend the Philippine Re­

habilitation Act of 1946, for the purpose ofmaking a clericE.1 correction; to the Commit­tee on Territories and Insular Affairs.

5954 CONGRESSIONAL RECORD-,HOUSE MAY 29project, and in order to place the Au-'thority in the same position that it wouldhave been in had it remained in posses­sion of the project during the war pe­riod, it is necessary to adjust the interestrates. It was demonstrated to the satis­faction of the interested Federal agenciesthat if the Authority had retained. pos­session of the project it would have beenable to refinance its 4-percent-revenuebonds at a lower rate of interest. It alsowould have to earn a sufficient amountof money based upon its existing rates atthe time the Government took over, tomeet its debt charges during the periodof Federal control.

Mr. Speaker, since this bill affects onlythe state of Oklahoma and the GrandRiver Dam project originally being aState of Oklahoma project, it is hopedthat the House will give its unanimousapproval to the enactment of this iegisla­tion. So far as the distribution of poweris concerned, the war emergency is over.Itis oUr opinion that the Grand RiverDam Authority of Oklahoma can operatethis project just as successfUlly and effi­ciently as the Federal Government. Wewant our property back.

The bill was ordered to be engrossedand read a third time, was read the thirdtime, and passed, and a motion to recon­sider was laid on the table.

ALASKAN INTERNATIONAL HIGHWAYCOMMISSION

Mr. SABATH. Mr. Speaker, 1: call upHouse Resolution 636, and ask for its­immediate consideration.

The Clerk read the resolution, as fol­lows:

ResolVed, That Immediately upon the adop­tion of this'resolution it shall be In order tomove that the House resolve itself into theCommittee of the Whole House on the stateof the Union for ~he consideration of the bill(H. R. 2871) to breate a commission to be

,known as the Alaskan International HighwayComliliss1on. That after general debate,which shall 1:1e confined to the bill and con­tinue not to exceed 1 hour, to be equally di­Vided and controlled by the chairman andthe ranking minority member of the Com­mittee on Foreign Affairs, the bill shall beread for amendment under the 5-minuterUle. At the conclusion of the reading of thebill for amendment, the Committee shall riseand report the bill to the House with suchamendments as may have been adopted andthe previous question shall be considered asordered on the bill and amendments theretoto final passage without intervening motionexcept one motion to recommit.

Mr. MARTIN of Massachusetts. Mr.Speaker, I hope the gentleman will tem­porarily withdraw this resolution. Iunderstood this was to be taken up onFriday, and therefore we are not pre­pared to take it up at this time. I disliketo raise the question of no quorum.

The SPEAKER. Of course, that willnot be necessary.

Mrs. ROGERS of Massachusetts. Mr.Speaker, will the gentleman Yield?

.Mr. MARTIN of Massachusetts. Iyield.

Mrs. ROGERS of Massachusetts. Thiswas reported unanimously by the ForeignMairs Commitee, both Republicans andDemocrats voting for it unanimously.

Mr. MARTIN of Massachusetts. I ap­preCiate that, but this was to be takenup on Friday.

The SPEAKER. It is on the programfor today.

Mr. MARTIN of Massachusetts. 1 un­derstand that, but since that was ar­ranged I had a talk with the majorityleader.

Mr. MANSFIELD of Montana. Themajority leader brought it out the thirdtime this afternoon when the gentlemanfrom Massachusetts questioned him.

Mr. SABATH. There is a similar bill.Perhaps that is what the gentleman wasreferring to.

Mr. MARTIN of Massachusetts. No.We understood that after the appropria­tion bill this afternoon ·there would beno other legislation. We felt that itcould be taken up on Friday very easily,and I have told a great many Membersthere would be no other business afterthe appropriation bill today.

Mr. SABATH. Naturally, Mr. Speak­er, in View of the understanding of thegentleman from Massachusetts, I am notgoing to insist on consideration of theresolution, because I would not like tosee all the Members brought back.

The SPEAKER: The gentleman with­draws the resolution.

EXTENSION OF REMARKS

Mr. KEOGH asked and was given per­mission to extend his remarks in theRECORD and include a message receivedby the Superintendent of the UnitedStates Maritime Academy from the Su­perintendent of the Naval Academy andhis reply thereto.

ALASKAN INTERNATIONAL HIGHWAYCOMMISSION

Mrs. ROGERS of Massachusetts. Mr.Speaker, I ask unanimous consent to ad­dress the House for 1 minute.

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

There was no objection.Mrs. ROGERS of Massachusetts. Mr.

Speaker, I just wanted to say that Gen­eral Eisenhower testified before the For­eign Mairs Committee yesterday. Heendorsed the purposes of the bill offeredby the gentleman from Montana [Mr.MANSFIED] very highly, saying it was avery important measure for our.nationaldefense.

Mr. MANSFIELD of Montana. Mr.Speaker, will the gentlewoman yield?

Mrs. ROGERS of Massachusetts. Iyield.

Mr. MANSFIELD of Montana. I wishto corroborate the lady\s remarks, ofcourse, and to point out 'that as far asthis bill is concerned it ties in very closelywith our economic and strategic security,

Mrs. ROGERS of Massachusetts. Yes,and General Eisenhower stressed thatyesterday.

The SPEAKER. The time of the gen­tlewoman from Massachusetts has ex­pired.

PERMISSION TO ADDRESS THE HOUSE

Mr. DE LACY. Mr. Speaker, I askunanimous consent to address the Housefor 1 minute and to r.evise and extend myremarks.

The SPEAKER, Is there objection tothe request of the gentleman fromWashington?

There was no objection"

Mr. DE LACY. Mr. Speaker, sinceprobably I cannot be here on Friday. Iwish to make a few remarks about thebill H. R. ,2871 which I may say I regardwith a friendly eye, inasmuch as my ownbill, H. R. 2654, is identical with that ofthe gentlemaI). from Montana. He, ofcourse, has added a couple of words "Al­berta and Saskatchewan" which wordswill bend the road and make it betweenfive or six hundred and a thousand mileslonger; but, as I say; I view it with afriendly eye.

Inasmuch as the highway commissionwhich has already been established hasrendered a report and completed its workand has recommended one of two pos­sible routes to Alaska as the best, I can­not see much use for another commis­sion being set up to consider the subjectfurther.

Mr. MANSFIELD of Montana. Mr.Speaker, will the gentleman yield?

Mr. DE LACY. I yield.Mr. MANSFIELD of Montana. I may

say to the gentleman from Washingtonthat the ground has not been gone overeast of the mountains on the surveys theCommission is to consider. It can makea recommendation at that time for thebuilding of the road or roads anywherein those Provinces and Yukon Terri­tory. So I hope there will' be no dis­agreement between us.

Mr. DE L~CY. No real disagreement,but I may say' that President Hooverhad a commission to study the routewhich a road should take to Alaska.'Subsequently President Roosevelt ap­pointed one headed by a former Memberof this House, now oUr State's distin­gUished senior Senator.

The Commission has studied routes.It has made its report to the President.

The Public Roads Committee of thisHouse looked the field over last summerand issued a full-dress report.

The present status of the interna­tional highway is that negotiations be­tween our Government and' Canada areunder way to determine proper alloca­tion of costs between the ,countries.

The logical route is the coast route,but I will say to the gentleman that Icannot bring myself to oppose his mostunderstandable desire to have possibleroutes studied for a road from pointsin his State to Alaska. All of us wantto see that great Territory developed.

LEAVE OF ABSENCE

By unanimous consent, leave of ab­sence was granted as follows:

To Mr, CORBETT (at the request of Mr.SIMPSON of Illinois), indefinitely, on ac­count of illness.

To Mr. ALMOND, from Thursday, May3D, through Tuesday, June 4, 1946, on.account of official business.

To Mr, COURTNEY <at the request ofMr. PRIEST), for 10 days, on account ofserious illness in family,

SENATE ENROLLED BILL SIGNED

The SPEAKER announced his signa­ture to an enrolled bill of the Senate ofthe follOWing title:

S.7. An act to improve ~he administrationof justice by prescribing fair administrativeprocedure.

1946 CONGRESSIONAL RECORD-SENATE 6073Mr. GUFFEY. Mr. President, I ask

permission to be absent from the Senate,beginning at 2 o'clock next Monday after­noon, for the remainder of that day, andfor all day Tuesday.

The. PRESIDENT pro tempore. With­out objection. the request is granted.

Mr. SALTONSTALL. Mr. President,I ask permission to be absent from theSenate from the hour of 1:15 today forthe remainder of the afternoon.

The PRESIDENT pro tempore. With­out objection, the request is granted.

Mr. HAWKES. Mr. President, I askunanimous consent to be absent from theSenate on Monday next.

The PRESIDENT pro tempore. With­out objection, leave is granted.

ENROLLED BILL· PRESENTED

The Secretary of the Senate reportedthat on May 31, 1946, he presented tothe President of the United States theenrolled bill (S. 7) to improve the ad­ministration of justice by prescribing fairadministrative procedure.NOTICE OF PUBLICATION OF HEARINGS

HELD BY THE SENATE SPECIAL COM­MITTEE INVESTIGATING PETROLEUMRESOURCES

Mr. O'MAHONEY. Mr. President, thefourth and fifth series of the hearingsrecently held by the Special CommitteeInvestigating Petroleum Resources, en­titled, respectively, "Petroleum Require­ments-Postwar" and "War EmergencyPipe-Line Systems and Other PetroleumFacilities," are now available at theUnited States Government PrintingOmce, Washington, D. C., for those de­siring copies.

Among the subjects mentioned in Pe­troleum Requirements-Postwar are thefollowing: (a) Supply and Demand inForeign Areas; (b) Forecast of FutureRequirements in the United states; (c)Exploration, Development, and Conser­vation of Present Petroleum Reserves;and (d) Compilations and Graphs of thePetroleum Industry Growth and Accom­plishments. The Superintendent ofDocuments has· advised me that thisbook, containing 119 pages, may be pur­chased at 25 cents per copy.

The booklet entitled "War EmergencyPipe-Line Systems and Other PetroleumFacilities," containing a synopsis of pe­troleum deliveries by war emergencypipe lines, including tanker, tank car,pipe line, and barge; also giving sugges­tions for the postwar disposal of Gov­ernment-owned pipe lines, refineries,and tankers, by the industry, as well asGovernment representatives, and vari­ous interested groups, such as the rail­roads, coal associations, arid labor or­ganizations, may be obtained at $1 percopy. This book contains 431 pages, inaddition to numerous maps and charts.REPORT OF BOARD OF ACTUARIES OF

THE ClVlL SERVICE RETffiEMENT ANDDISABILITY FUND (S. DOC. NO. 197)

The PRESIDENT pro tempore laid be-fore the Senate a letter from the presi­dent of the United States Civil ServiceCommission, transmitting, pursuant tolaw, the Twenty-fifth Annual Report of

O'DanlelO'MahoneyOvertonPepperReedRevercombRobertsonRussellSaltonstallShip~tead

SmithStanfillStewartTaftThomas, Okla.Thomas. UtahTunnellVandenbergWagnerWalshWheelerWherryWh:teWileyWillisWilson

HatchHawkesHaydenHlckenlooperHillHoeyHuffmanJohnson, Colo.Johnston, S. C.KllgoreKnowlandLa FolletteLucasMcCarranMcClellanMcFarlandMcKellarMcMahonMagnusonMaybankMillikinMitchellMooreMorseMurdockMurrayMyers

Journal of the proceedings of the cal­endar day Friday, May 31, 1946, wasdispensed with, and the Journal wasapproved.

CALL OF THE ROLL

Mr. HILL. I suggest the absence of aquorum.

The PRESIDENT pro tempore. Theclerk will call the roll.

The Chief Clerk caIled the roll, andthe following senators answered to theirnames:AikenAndrewsAustinBallBarkleyBrewsterBriggsBrooksBurchBushfieldButlerCapehartCapperConnallyCordonDonnellDowneyEastlandEllenderF?rgusonFulbrightGeorgeGerryGreenGuffeyGurneyHart

Mr. HILL. I announce that the Sena­tor' from North Carolina [Mr. BAILEY]and the Senator from Alabama [Mr.BANKHEAD] are absent because of 1llness.

The Senator from Mississippi [Mr.BILBO], the Senator from Nevada [Mr.CARVILLE], and the Senators from Idaho[Mr. GOSSETT and Mr. TAYLOR] areabsent by leave of the Sznate.

The Senators from Maryland [Mr.RADCLIFFE and Mr. TYDINGS] have beenexcused from attendance in the Senatetoday in order to be present at the grad­uation ceremonies at Washington COl­lege, Chestertown, Md., where a degreeis to be conferred upon the Presidentof the United States.

The Senator from Virginia [Mr. BYRD],the Senator from New Mexic'J [Mr.CHAVEZ], and the Senator from New York[Mr. MEADlllore detained on pUblic.busi­ness.

Mr. WHERRY; The Senator fromNew Hampshire [Mr. BRIDGES] is neces­sarily absent.

The Senator from North Dakota [Mr.LANGER] is necessarily absent.

The Senator from New Hampshire[Mr. TOBEY] is absent on omcial busi­ness.

The Senator from North Dakota [Mr.YOUNG] is absent by leave of the Senate.

The Senator from Delaware [Mr.BUCK] is necessarily absent.

The PRESIDENT pro tempore. EightySenators having answ,ered to theirnames, a quorum is present.

LEAVES OF ABSENCE

Mr. THOMAS of Utah. Mr. President,because of long-standing speaking ap­pointments, I ask unanimous consent tobe excused from the Senate this after­'noon and Monday.

The PRESIDENT pro tempore. With­out objection, the request is granted.

PETITIONS, ETC.

Under clause l' of rule XXII, petitionsand papers were laid on the Clerk's deskand referred as follows:

1924. By Mr. CQLE of Missouri: Petitionof the International Union of United Brewery,Flour, Cereal, and Soft Drink Workers ofAmerica, Locals No, 93 and 116. of St. Joseph,1140" protesting present and future restric­tions on the quantity of grains available forthe manUfacture of beer; to the Committeeon Agriculture. •

1925. By Mr. STEFAN: Petition of FarmersUnion, Local No. 319, Saunders .County,Nebr.; to the Committee on BankIng andCurrency.

1926. By the SPEAKER: Petition of Lodge402, International Association of Machinists,petitioning consideration of their resolutionWith reference to endorsement of House bll14051; to the Committee on Military Affairs.

1927. Also, petitlon of 250 citizens ofWayne. Pa., and vicinity, petitioning consid­eration of their resolution with reference torequest for legislation calling for the estab­lishment by law of certain fundamental prin­ciples deemed essential to the health andwell-being of our country; to the Committeeon the JUdiciary.

1928. Also, petition of director, Sixth An­nual Model Congress, petitioning considera­tion of their resolution with reference tovarious legislation; to the Committee onEducation.

SATURDAY, JUNE 1, 1946(Legislative day of Tuesday. March 5,

1946)

The Senate met at 12 o'clock meridian,on the expiration of the recess.

Rev. Bernard Braskamp, D. D;, pastorof the Gunton-Temple MemQrial Pres­byterian Church, Washington, D. C.,offered the' following prayer:

Most mercifui and gracious God, whosethoughts concerning us are those of loveand peace, grant that every thought andpurpose of our own minds may bebrought into a glad and willingobedi­ence to Thy divine will.

We pray that our hearts may be im­pervious to the spirit of personal aggran­dizement, but we:inay seek one another'Swelfare and bear one another's burdens,and so fulfill the law of Christ.

Show us how we may find a just andrighteous solution to all the problems ofhumr-m relationships. Grant that capi­tal and labor, employer and employee,and men everywhere, of whatever creed,class. country, or color, may stand on thehigh plateau of brotherhood and patri­otism and of loyalty to God and humanrights.

We pray that at the eventide of eachday we may have' a conscience that ispeaceful and a heart that is happy andworthy to receive Thy benediction andbe crowned with the diadem of Thypraise, "Well done, thou good and faith­ful servant."

Hear us in the name of the Christ.Amen. .

THE JOURNAL

On request of Mr. BARKLEY, and \>Yunanimous consent, the reading of the

XCII--383

SENATE

1946 CONGRESSIONAL RECORD-SENATE G705equipping, or acquirillg public works of apermanent character, and to provide for thepayment thereof, and for other purposes;without amendment (Rept. No. 2247). Re­ferred to the House Calendar.

Mr. PETERSON of Georgia: Committee onthe Territories. H. R. 6800. A bill to au­thorize school districts in Alaska to issuebonds for school construction, and for otherpurposes; without amendment (Rept. No.2248). Referred to the House Calendar.

Mr. BLOOM: (;ommittee on Foreign Affairs.H. R. 6646. A bill to establish the Office (ItUnder Secretary of State for Economic Af­fairs; with amendment (Rept. No. 2249).Referred to the Committee 01' the WholeHouse on the State of the Union.

PUBLIC BILLS AND RESOLUTIONS

Under clause 3 of rule XXII, publicbills and resolutions were introduced andseverally referred as follows:

By Mr. HOFFMAN of Michigan:H. R. 6738. A bill to prevent discrimination

in employment because of race, creed, color,national origin, or ancestry; to the Commit­tee on Labor.

By Mr. RANKIN:H. R 6740. A bill relating to veterans' pen­

sion, compensation, or retirement pay dur­ing hospitalization, institutional or domi­o1llary care, and for other purposes; to theCommittee on World War Veterans' Legisla­tion.

By Mr. BULWINKLE:H. R. 6741. A bill relating to the operation

of section 8 of the Federal Airport Act withrespect to the fiscal year 1947; to the Com­mittee on Interstate and Foreign Commerce.

By Mr. FALLON:H. R. 6742. A bill to make certain imported

merchandise SUbject to the same internal­revenue taxes as similar merchandise of do­mestic origin; to the Committee on Waysand Means.

By Mr. GATHINGS:H. R. 6743. A bill relating to the selection

under the National Labor Relations Act ofrepresentatives of employees for collectivebargaining; to the Committee on Labor.

By Mr. GREEN:H. R. 6744. A bill to provide that every Sat­

urday shall be a holiday for banks and build­ing and loan associations in the District OfColumbia; to the Committee on the Districtof Columbia.

By Mr. IZAC:H. R. 6746. A bill to further amend the act

approved August 27, 1940 (64 Stat. 864); t{)the Committell on Naval Affairs.

By Mr. KEARNEY:H. R. 6746. A bill to promote maximum

. employment, business opportunities, andcareers for veterans in a free' competitiveeconomy; to the Committee on Banking andCurrency. .

By Mr. McCORMACK:H. R. 6747. A bill to amend section 2 of

PUblic Law 88, Seven.th-ninth Congress, ap­proved June 23, 1945; to the Committee onBanking and Currency.

By Mr. TALLE:H. R. 6748. A blll to prohibit the exporta­

tion of farm machinery (inclUding tractors)until the domestic farm machinery and farinlabor reqUirements are being currently met;to the Committee on Ways and Means.

By Mr. LYNCH:H. R. 6749. A b1ll to amend the Internal

Revenue Code, as amended, and the Social Se­curity Act, as amended; to the Committee onWays and Means.

By Mr. SPARKMAN:H. R. 6750. A bill to prOVide more efficient

dental care for the personnel of the UnitedStates Army; to the Committee on MilitaryAffairs.

By Mrs. LUCE:H. J. Res. 365. Joint resolutionproPOI;lng

an amendment to the Conlltitution· rel\l.tlng

to the election of the representative of tbeUnited States to the Security Council of theUnited Nations; to the Committee on theJudiciary.

PRIVATE BILLS AND RESOLUTIONS

Under clause 1 of rule XXII, privatebills and resolutions were introduced andseverally referred as follows:

By Mr. WEST:H. R. 6751. A bili authorizing Gus A. Guer­

ra, his beirs, legal representatives, and as­signs, to construct, maintain, and operate atoll bridge across the Rio Grande, at or' nearRio Grande City, Tex., to the Committee onInterstate and Foreign Commerce.

By Mr. BATES of Massachusetts:H. R. 6752. A bill for the relief of Anthony

Demetri.os Paschalls, also known as AntonioPaschalis; to the Committee on Immigrationand Naturalization. -

By Mr. BARTLETT:H. R. 6753. A blll for the relief of Robert

W. Heavey; to the Committee on Claims.By Mr. BUCKLEY:

H. R. 6754. A bill for the rellef of GiuseppeBarile; to the Committee on Immigrationand Naturalization.

By Mr.- GOODWIN:H. R. 6755. A b1ll for the relief of Mary E.

Gaine; to the Committee on Claims.By Mr. IZAC:

H. R. 6756. A bill for the relief of LeonardRalph McLauchlan; to the Committee onClaims.

H. R. 6757. A blll for the relief of ColbertH. Cannon, of Oceanside, Calif.; to the Com­mittee on Claims.

H. R. 6758. A b1ll for the relief of H. F.Elliott; to the Committee on Claims.

H. R. 6759. A b1ll for the relief of NationalAmerican Fire Insurance· Co. of omaha; tothe Committee on Claims.

By Mr. McCONNELL:H. R. 6760. A bill for the rellef of PaUl J.

Weimar; to the Committee on Claims.By Mr. NORRELL:

H. R. 6761. A bill for the relief of Fred E.Gross; to the Committee on Claims.

By Mr. O'NEAL:H. R. 6762. A blll for the rellef of Alice E.

Shinnick; to the Committee on Claims.By Mr. BATES of Massachusetts:

H. R. 6763. A bill for the relief of Hara­lambos G. Kaminaris, also known as HarryG. Toul1atos; to the C'ommlttee on Immigra­tion and Naturalization.

PETITIONS, ETC.

Under clause 1 of rule XXII, petitionsand papers were laid on the Clerk's deskand referred as follows:

1960. By Mrs. SMITH of Maine: Petition ofDonald A. Piper, of Monmouth, Maine, and30 other citizens, urging aid in relieVing thecritical grain shortage eXisting in Maine andthroughout the Northeast, requesting a con­gressional investigation and asking that grainnow used in the manUfacture of alcoholicbeverages be allocated to feed manufactur­ers; to the Committee on Agriculture.

1961. By Mr. VOORHIS of California: Peti­tiOn of Mrs. Josephine TOWnley, 108 East:Falls Street, Ithaca, N. Y., and 37 others,urging Congress to act favorably on HouseJoint Resolution 325, to prevent the use ofgrain for nonessential purposes during theperiod of shortage; to the Committee onAgriculture. .

1962. By the SPEAKER: Petition of FifthDistrict Advisory Council of Townsend ClUbs,petitioning consideration of their resolution

. with reference to endorsement of House bill2229; to the Committee on Ways and Means.

1963. MlIP, peHtiQll of the commander in~.D~l!'ldP4ilipPlne Constabulliry Vet­eranll' ~ti~iOJi,ing considera.tion of tbeir res­olutiOu. wit1J, teierence to request for legis-

lation for pensions for the Philippine Con­tabulary veterans; to the Committee on Pen­sions.

1964. Also, petition of the Oberlin Town­send ClUb, Oberlin, Ohio, petitioning consid­eration of their resolution with reference toendorsement of House bills 2229 and 2230;to the Committee on Ways and Means.

1965. Also, petition. of the Bible Presbyte­rian Church, petitioning consideration oftheir resolution with reference to request forwithdrawal of Russian military forces fromKorea; to the Committee on Foreign Affairs.

1966. Also, petition of Antioch Grange, No.462, petitioning consideration of their reso­lution with reference to the strike situation;to the Committee on Labor.

1967. Also, petition of commiSsion on actionfor peace and democracy, Congress of Amer.ican Women, petitioning consideration oftheir resolution With reference to request fora rationing program; to the Committee onBanking and Currency.

1968. Also, petition of the chairman, theItalian-American Labor Councll, petitioningconsideration of their resolution with refer­ence to a just and honorable peace for theItalian Republic; to the Committee on For.­eign Affairs.

1969. Also, petition of Men of Special Serv­ices, Three Hundred and Seventeenth T. C.Group, APO 704, care of Postmaster, SanFrancisco, Calif., petitioning consideration oftheir resolution with reference to extensionof the draft bill; to the Committee on Mili­tary Alfairs.

SENATEWEDNESDAY, JUNE 12, 1946

(Legislative day of Tuesday, March 5,19(6)

The Senate met at 11 o'clock a. m., onthe expiration of the recess.

The Chaplain, Rev. Frederick Browl\Harris, D. D., offered the followingprayer:

Our Father God, with soiled face andhands unclean with the dust of earthytoil, we come to the crystal waters ofThy restoring grace. As those set asideto prescribe for the ills of an ailing socialorder, first cleanse our own souls frommoral pollution and mental darkness.In a world where the worst Wars con­stantly against the best, open our eyesto invisible allies which fight by the sideof those who keep step. with Thy wiIl­invincible forces which at last will bendand break the spears of evil. Whenplagued with perplexity we have soughttruth till our minds are wearied, whenfaint with the struggle our strength hasdeparted, when the sadness of the worldcreeps into our own eyes, stand Thou insplendor before us like the light, like lovealllovelY,like the morning and the noon­tide which slays the shad9ws. Amen.

.THE JOURNAL

On request of Mr.. BARKLEY, and byunanimous consent, the reading of theJournal of the proceedings of the cal­endar day Tuesday, June 11, 1946, wasdispensed with, and the Journal wasapproved.

. MESSAGES FROM THE PRESIDENT-APPROVAL OF BILLS .

Messages in writing from the Presidentof the United States were communicatedto the Senate by Mr. Miller, one of his

6706 'CONGRESSIONAL RECORD-SENATE JUNE 12

secretaries, who also announced that thePresident had approved and signed thefollowing acts:

On ,June 11, 1946:S. 7. An act to improve the administration

.of justice by prescribing fair administrativeprocedure; .

S. 769. An act for the relief of H. H. Ash­brook, and others;

S. 913. An act to protect scenic values alongand tributary to the Catalina Highway withinthe Coronado National Forest, AriZ.;

S. 1106. An act for the relief of Malcolm K.Burke;

S. 1286. An act for the relief of SamBechtold;

S. 1871. An act to authorize the convey­ance of a parcel of land at the naval supplydepot, Bayonne, N. ,1., to the American Radi­ator & Standard Sanitary Corp.; and

S. 1959. An act to authorize the paymentof additional uniform gratuity to reserveofficers commissioned from the status or avi­ation cadets.

On June 12, 1946:S.I776. An act to authorize the exchange

of certain land at the Be~'lcia Arsenal, Calif.

LEAVE OF ABSENCE

Mr. VANDENBERG. Mr. President,at the urgent request of the Secretary ofState, I am returning to Paris, to the re­cessed meeting of the Council of ForeignMinisters. I ask unanimous consentthat I may be excused from attendanceon the sessions of the Senate pendingthe conclusion of this assignment.

The PRESIDENT pro tempore. With­out objection, leave is granted.

Mr. CAPEHART. Mr. President, I askunanimous consent to be absent from theSenate until Friday, June 14.

The PRESIDENT pro tempore. With­out objection, leave is granted.NOTICE OF HEARING ON NOMINATION OF

LOUIS LEBARON TO BE ASSOCIATEJUSTICE, SUPREME COURT, TERRITORYOF HAWAII

Mr. McCARRAN. Mr. President, onbehalf of the Committee on the JudiciarY,and in accordance with the rules of thecommittee, I desire to give notice that apublic hearing has been scheduled forWednesday, June 19,1946, at 10:30 a. m.,in the Senate Judiciary Committee room,upon the nomination of Hon. LoUis Le­Baron, of Hawaii, to be aSSociate justiceof the Supreme Court, Territory ofHawaii. Judge LeBaron is now serVing inthis post under an appointment which ex­pired March 24, 1946. At the indicatedtime and place, all persons interested inthe nomination may make such repre­sentations as may be pertinent. Thesubcommittee consists of the Senatorfrom Nevada [Mr. MCCARRANJ, chair­man; the Senator from Utah [Mr. MUR­DOCK]; and the Senator from Oklahoma[Mr. MOORE].NOTICE OF HEARING ON NOMINATION OF'

BUNK GARDNER TO BE UNITED STATESDISTRICT JUDGE OF THE CANAL ZONE

Mr. McCARRAN. Mr. President, onbehalf of the Committee on the Judiciary,and in accordance with the rules of thecommittee, I desire to give notice that apublic hearing has been scheduled forWednesday, June 19, 1946, at 10:30 a. m"in the Senate Judiciary Committeeroom, upon the nomination of Hon.'Bunk Gardner, of Kentucky, to be UnitedStates district judge of the Canal Zone.

Judge Gardner is now serving in this postunder an appointment Which expiredMarch 26, 1946. At the indicated timeand place, all persons interested in thenomination may make such representa­tions as may be pertinent. The subcom­mittee consists of the senator from Ne­vada [Mr. MCCARRAN], chairman; theSenator from Mississippi [Mr. EAsT­LAND]; and the Senator from Kentucky[Mr. STANFILL].PROPOSED ACQUISITION OF ST. JOHN'S

COLLEGE, ANNAPOLIS

Mr. WALSH. Mr, President, I askunanimous consent to have printed inthe RECORD a resolution adopted by theCommittee or. Naval Affairs yesterdayregarding the proposed· expansion pro­gram of the United States Naval Academyat Annapolis requiring the acquisition ofthe adjacent site of st. John's College.

There being no objection, the resolU­tion was ordered to be printed in theRECORD, as follows:

Whereas a proposal has been made that theexpanding program of the Vnlted StatesNaval Academy at Annapolis, Md., reqUiresthe acquisition of the adjoining site of St.John's College; and

Whereas the Naval Affairs Committee orthe Senate has held long and exhaustivehearings thereon; and

Whereas upon careful consideration it isthe sense of this committee that the nationalemergency neither justifies nor warrants theproposed acquisition of St. John's campus:Now, therefore, be it

Resolved, That said proposed acqUisitionofficially known as project No. 460-0 of theReal Estate Division, Bureau of Yards andDocks, Navy Department, is hereby disap­proved.

MESSAGE FROM THE HOUSE-ENROLLEDBILL AND JOINT RESOLUTION SIGNED

A message from the House of Repre­sentatives, by Mr. Chaffee, one of itsreading clerks, announced that theSpeaker had aflixed his signature to thefollowing enrolled bill and joint resolu­tion, and they were signed by the Presi­dent pro tempore:

s. 1163. An act to provide for the appOint­ment of one additional district judge for thenorthern district of California; and

H. J. Res. 360. Joint resolution to prOVidefor United States partiCipatiOn in the Philip­pine independence ceremonies on July 4,1946.

SHORTAGE OF FEED FOR LIVESTOCK ANDPOULTRY-PETITION

Mr. WALSH. Mr. President, I askunanimous consent to present a copy of astatement issued by the New Englandcommissioners of agriCUlture, adopted inconference at the State House in Boston,Mass., on June 7, 1946, with reference tothe livestock and poultry situation, dueto the feed shortage, and I request thatit be treated in the nature of a petition,referred to the Committee on Agricul­ture and Forestry, and printed in theRECORD.

There being no objection, the state­ment was received, referred to the Com­mittee on AgricUlture and Forestry. andordered to be printed in the RECORD, asfollows:

The commissioners of agriculture of NewEngland met at the State House, Boston,Mass., in conference with representatives ofthe State colleges and dairy and poultry in-

dustries to consider the feed situation inNew England.

The folloWing situation was found to exist:1. Laying hens have been cut to 50 percent

of the January 1 number; 8,200,000 hens wereslaughtered between January 1 and May 1;2,200,000 hens were slaughtered during themonth of May. This rate is 250 percent ofnormal, with present rate of slaughter morethan 300 percent of normal. The rate of li­qUidation is increasing daily.

2. Present replacement flocks are down 15to 25 percent from last year. Some pUlletshave already been slaughtered due to lackof feed. Farmers are trying to hold replace­ment stock. Ultimate size of replacementflocks depends upon available grain.

3. Broiler production is down 60 to 75percent from last year.

4. Egg receipts at four major egg-market­ing cooperatives (Hartford, Conn., Spring.field, Mass., Brockton, Mass., Derry. N. H.)were 42 percent less during the first week ofJune than in the flrst week of May this year.

5. Considered estimates Indicate the grainsupply for June wlll be less than 50 percentof last year. More. than 3,000 carloads ofgrain are needed to hold present livestockand poUltry numbers for 30 days.

This means a mllk shortage greater thanlast year and a shortage of eggs and pOUltrythis fall and Winter as well as serious dam­age to farm businesses.

Suggested solutions of this grievous prob­lem to both consumers and producers are:

1. Loan of Government-owned corn (2.000,­000 bushels).

2. Subsidy on corn, oats, barley, and otheravailable grains, except milo, either on Gov­ernment or private basis.

3. Direct Government purchase of grainfor shipment to deficit areas.

NEW ENGLAND COMMISSIONERSOF AGRICULTURE,

FREDERICK E. COLE, Massachusetts.A. K. ·GARDNER, Maine.STANLEY JUDD, Vermont.FUNK H. PEET, Connecticut.ANDREW L. FELKER, New Hampshire.RAYMOND G. BRESSLER, Rhode Island.

JUNE 7, 1946.

AUTHORITY FOR PROTECTION WORK BE­TWEEN THE YUMA PROJECT AND BOUL­DER DAM-QHANGE OF REFERENCE

Mr. McCARRAN. Mr. President, sometime ago the House of Representativespassed and sent to the Senate a bill (H. R.5674) to amend the laws authorizing theperformance of necessary protectionwork between the Yuma project andBoulder Dam by the Bureau .of Reclama­tion. By some misdirection the bill wasreferred to the Committee on Commerce.I have conferred with the acting chair­man of the Committee on Commerce, theSenator from Louisiana [Mr. OVERTON],and I have his consent that the Commit­tee on Commerce .may be dischargedfrom the further consideration of the bill,and that it be referred to the Committeeon Irrigation and Reclamation.

Therefore, Mr. President, I ask unani­mous consent that the Committee onCommerce be discharged from the fur­ther consideration of House bill 5674, and

• that it be referred to the Committee onIrrigation and Reclamation.

The PRESIDENT pro tempore. With­out objection, it is so ordered.

REPORTS OF COMMITTEES

The following repoits of committeeswere submitted:

By Mr. WALSH, from the Committee onNaval Affairs:

H. R. 4433. A b1l1 to provide for the con­veyance to the State of Alabama ftal Use as a