FINAL REPORT OF THE ADMINISTRATIVE CONFERENCE OF THE UNITED STATES ESTABLISHED BY PRESIDENT KENNEDY BY EXECUTIVE ORDER 10934, APRIL 13, 1961 SUMMARY OF THE ACTIVITIES OF THE CONFERENCE

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• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP66B00403R000400020022-0
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 113
• Document Creation Date: December 19, 2016
• Document Release Date: January 5, 2005
• Sequence Number: 22
• Publication Date: December 15, 1962
• Content Type: REPORT

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Administrative Conference of
the United States
FINAL REPORT
OF THE
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
Estaklished by President Kennedy
by Executive Order 10934, April 13, 1961
SUMMARY OF THE ACTIVITIES OF THE CONFERENCE
December 15, 1962
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FINAL REPORT
of the
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
Established. by President Kennedy
on April 13, 1961,
by Executive Order 10934
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SUMMARY OF THE ACTIVITIES OF THE CONFERENCE
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Dated December 15, 1962
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Table of Contents
Page
Foreword
1
I
History
2
II
Structure and Organization
3
III
Operation and Intangible Results
8
IV
Summary of Recommendations
12
- Ex Parte Communications
12
- Delegation of Decisional Authority
13
- Debarment of Contractors
15
- Delay in Ratemaking
15
- Armed Services Board of Contract Appeals
16
- Competing Domestic Airline Applications
17
- Mutually Exclusive Broadcast Applications
17
- Right to Counsel
19
- Hearing Examiners and Government Attorneys
19
- Judicial Review of I.C.C. Orders
21
- Subpoena Power
22
- Production of Records upon Judicial Review
22
- Enforcement of NLRB Orders
23
- Government Contract Appeals
23
- Discovery Techniques
24
- Statistical Analysis of Proceedings
25
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- Broadcast Licensing 27
- Licensing of Truck Operations 27
- Domestic Air Route Authority 28
- Miscellaneous 29
- Office of Administrative Procedure 29
- Implementation 30
V Underlying Reports 32
VI Unfinished Business and Projected Studies 38
VII Statistical Review 47
Appendix I - Executive Order 10934, April 13, 1.961
Appendix II - Identification of Council Members
Appendix III - General Membership of the Conference
Appendix IV - Text of the Recommendations of the Conference
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FOREWORD
President Kennedy established the Administrative Conference of the
United States by Executive Order 10934, dated April 13, 1961. In that
Order he directed the Conference to report to him prior to December 31,
1962, "summarizing its activities, evaluating the need for further
studies of administrative procedures, and suggesting appropriate means
to be employed for this purpose in the future." The Council of the
Conference construed this directive to require two reports, one concern-
ing the activities of the present -- now past Conference, and the other
containing suggestions for the future. The attached is the former. The
latter is being separately handed to the President in the form of a letter.
(The full text of Executive Order 10934 is in Appendix I attached hereto].
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Promptly after the election of 1960 President-elect Kennedy turned
his attention to the problems of the regulatory agencies, and shortly
after assuming office he sent to the Congress a Special Message on the
subject. In the course of that Message he discussed the establishment
of an Administrative Conference of the United States. He announced that
he had, by Executive order, called such a conference. In this Message
President Kennedy said:
"The results of such an Administrative Conference will
not be immediate but properly pursued they can be enduring.
As the Judicial Conference did for the courts, it can bring
a sense of unity to our administrative agencies and a desir-
able degree of uniformity in their procedures. The inter-
change of ideas and techniques that can ensue from working
together on problems that upon analysis may prove to be
common ones, the exchanges of experience, and the recogni-
tion of advances achieved as well as solutions found mprac-
tical, can give new life and new efficiency to the work of
our administrative agencies."
The difficulties which beset the agencies had long been a matter of
concern. In 1949 a Special Subcommittee of the Judiciary Committee of
the House of Representatives requested the Judicial Conference of the
United States "to endeavor to develop some time-saving procedures" in
certain classes of cases, including those before the regulatory agencies.
The Judicial Conference, through Chief Justice Vinson., suggested to the
President of the United States that he call a Conference of Representatives
of the Administrative Agencies for the purpose of devising ways and means
of eliminating excessive delay, expense, and unduly voluminous records.
President Eisenhower, early in 1953, callei such a Conference, and it met
or some two years. At its conclusion it recommended that a similar
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Conference be put upon a continuing basis.
Thereafter the American Bar Association, the Federal Bar Association,
the Judicial Conference of the District of Columbia Circuit, and, for the
second time, the Judicial Conference of the United States urged the crea-
tion of such a continuing Conference. Chief Justice Warren, in a key
speech to the Federal Bar Association, vigorously urged the establishment
of a permanent Conference.
Finally, in August, 1960, the Chairmen of six of the large independent
agencies, jointly, prepared and transmitted to President Eisenhower a
letter in which the need for a permanent Conference was explained at length,
the composition of such a Conference was suggested, and he was urged to
appoint a Committee to formulate plans. The President appointed such a
Committee. Shortly thereafter President Kennedy took office and, as we
have indicated in our Foreword, promptly created the Conference by Executive
Order and sent his Special Message to the Congress. The Conference thus cre-
ated was directed to report to the President prior to December 31, 1962, sum-
marizing its activities and submitting its suggestions as to means for future
studies of agency procedures.
STRUCTURE AND ORGANIZATION
On April 30, 1961, the President announced the appointment of the
Chairman of the Conference and ten other persons who were to constitute a
J
Council, or Executive Board. The Chairman called this group together for
its first meeting in Washington on May 8 and 9, 1961.
The Council determined that some 31 agencies of the-Government had, as
a ma,ior part of their activities, the determination of rights, privileges
For identification of the Council members, see Appendix II.
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and obligations of private individuals through adjudication or by the
making of rules. A majority of the membership of the Conference was
therefore obtained from these 31 agencies. The Secretary of each
Cabinet Department was asked to name a member. Those departments
which had several agencies within their departmental structure named
an additional member. Each Chairman of the 7 large independent agencies
(CAB, FCC, FPC, FTC, ICC, NLRB, SEC) designated 2 members. Fourteen
other agencies having adjudicatory and r+ making functions each named
a member. later, the Council designated 2 additional Federal agencies
whose heads named 1 member each, bringing the number of agencies par-
ticipating to 33. The governmental agency members then totaled 4-6. Two
hearing examiners were named.
Twenty-nine participants from outside Government service were selected,
after careful deliberation and consideration of many factors. Of these, 21
were practicing lawyers, 3 were law school faculty members, 2 were from the
faculties of schools of government, 2 were members of State regulatory com-
missions, and 1 was an accountant.
In the selections from the practicing Bar, an intensive effort was
made to produce a cross-section of all shades of administrative law prac-
tice. From a list of over 100 thoroughly qualified specialists in major
areas of Federal regulation, practitioners were selected who included mem-
bers of small law firms and the senior partners in several of the country's
leading firms. Geographic location and major clients of the practitioners
were taken into account, so as to give voice to private as well as public
groups. For example, in the field of transportation, the Conference was
able to benefit from the participation of lawyers familiar with the problems
of carriers, shippers and state regulatory agencies. A mixture of political
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affiliations was sought. From the universities were obtained the services
of outstanding law professors and scholars in the fields of political
science and economics. All individuals Invited by the Council agreed to
serve.
The general membership of the Conference, Including the Chairman and
the Council, was 88, of whom 60% were in Government service and 40% were
from outside the Government. The roster is attached hereto as Appendix III.
The Council established liaison with the Congress by inviting the
President of the Senate and the Speaker of the House of Representatives
each to designate three members from their respective chambers. Pursuant
to this invitation, Senators Philip A. Hart, Edmund S. Muskie and Everett
McKinley Dirksen were appointed from the Senate and Congressmen Oren Harris,
Walter Rogers andJohi Bennett from the House. These designees were per-
mitted to name alternates from their staffs.
The Conference established 9 Standing Committees:
Adjudication of Claims - Cyrus R. Vance,
Secretary of the Army, Chairman
Compliance, Enforcement, and Disciplinary
Proceedings - Rosel H. Hyde of the
Federal Communications Commission,
Chairman
Information and Education -- James McI. Henderson
of the Federal Trade Commission, Chairman
Internal Organization and Procedure - David Ferber
of the Securities and Exchange Commission,
Chairman
Judicial Review - Ashley Sellers of the firm of
Cummings and Sellers, Washington, D.C.,
Chairman
Licenses and Authorizations - Whitney Gilliland of
the Civil Aeronautics Board, Chairman
Personnel - Emmette S. Redford of the University of
Texas, Chairman
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Rulemaking - Robert W. Ginnane of the Interstate Commerce
Commission, Chairman
Statistics and Reports - Charles W. Bucy of the Department
of Agriculture, Chairman
Each member of the Conference served on one Committee, and a member of
the Council was designated as a liaison with each Committee. No alter-
nates or substitutes for members were permitted to participate in sessions
of the Conference.
Government departments and agencies cooperated fully with the Commit-
tees and the Conference. The Committees were fortunate in obtaining the
services of educators in leading law schools in the country, who acted as
full-time staff directors and as _consultants as the need appeared. In
this manner expert services were obtained for research. The research
directors were, of course, upon a retainer basis of employment, but, mem-
bers of the Council and of the Conference and most of the consultants
served without compensation. Administrative and secretarial services were
supplied the Conference and the Committees by the Office of A&ninistrative
Procedure of the Department of Justice.
The Conference, as a whole, operated in the form of a legislative
assembly. The course of operation was: (1) A subject was suggested for
study. Such suggestion might come from anywhere or anybody. (2) The
Council adopted the suggestion and proposed its assignment to a Coirnittee.
(3) The assembly approved the Council assignment. (4) The Committee con-
sidered the subject and directed research into it. (5) A staff director
made or directed the research and formulated the data thus accumulated into
a staff report. (6) The Committee considered the staff report and prepared
a recommendation of action on the subject. It formulated a report -- usually,
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of course, based upon the staff report -- in support of its recommendation.
These .-- the Committee report and its recommendation -- were two separate
documents, one somewhat extensive and the other succinct. (7) The Council
considered the recommendation and passed it along to the assembly. Both
the report and the recommendation were circulated to the entire membership.
(8) The assembly debated the recommendation in a public plenary session and
voted on it. (9) If adopted by the assembly, the recommendation was trans-
mitted to the President. A total of 30 recommendations were adopted, cover-
ing a wide variety of matters, which are described in more detail later in
this report.
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III
OPERATION AND INTANGIBLE RESULTS.
In addition to its specific recommendations on phases of agency
procedure, and the underlying reports, which we shall later describe,
the Conference resulted in a number of important intangible benefits
to Federal administrative processes generally. In order that these be
appreciated, the operation of the assembly should be visualized. The
session is public. Some seventy-five conferees are in the room. Of-
ficials are present from every Cabinet Department and every agency having
duties of an adjudicatory or similar nature. The General Counsel of
almost every agency is present. Commissioners and Board members of the
larger agencies are present. The Secretary of the Army, the Chairman
of the Federal Power Commission, and members of the Civil Aeronautics
Board and the Federal Communications Commission are chairmen of Commit-
tees. About twenty lawyers from private practice are members. They come
from different sections of the country, from New York City and San Francisco,
from St. Paul and Dallas. Some are senior members of large firms, and
some are from small offices. Some of them customarily represent industry
or business, some public utilities, some labor organizations, some indi-
vidual citizens. Some are experts in administrative law, and some are
general practitioners. The General Counsel of the New York Public Service
Commission and a member of the Illinois Commission are present. Law pro-
fessors whose names are nationally known to the legal profession are also
there, as are several outstanding authorities on the science of government.
In addition to the members of the Conference, experts who have been invited
by the Council or a Committee to assist in the work have the privilege of
the floor. In like fashion staff members from Committees of the Senate
and the House of Representatives participate.
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A recommendation in respect to some feature of administrative pro-
cedure is before the Conference for discussion and action. As we have
indicated, this proposal has originated in an intensive research study
by an expert, has been before a committee of eight or nine members in
several meetings, has passed through the Council, has been distributed,
with its supporting report, to all participants in the Conference, and
thus has reached the agenda of the assembly. The discussion on the floor
is begun by the Chairman of the sponsoring Committee. The proposition
is then opened to general debate. This is frequently long and vigorous,
differing positions being vehemently maintained. The debate continues
until the Conference indicates readiness to vote; upon occasion not until
a later session. Then a vote is taken on the recommendation.
The intangible benefits flowing from this procedure are, principally,
these:
1. Cooperative Consideration and its By-Products.
The agencies--some thirty-three of them--which normally are occupied
separately with problems differing widely in factual background and in
substance, are brought together for cooperative consideration of procedural
matters. They discover that many such problems are mutual, that agencies
other than themselves have some of the same procedural problems they have.
Members from agencies widely separated bureaucratically and even geographi-
cally learn to know each other, personally and officially. They come to
realize that these other agencies may have had important experiences or
ideas with respect to problems similar to theirs. The chairman of one
agency thus may present a Committee report concerning the procedure of
another agency. A member from a department having much to do with Govern-
ment contracts presents a report dealing with fair treatment of contractors.
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Throughout the process -- in the Council, in the Committees, ani in the
assembly -- the voices of practitioners and of educators have been pro-
jected. A cross-fertilization of ideas occurs. Members become increas-
ingly procedure conscious and transmit this state of mind to their asso-
ciates. A reflex self-analysis takes place. A probing of the strengths
and weaknesses of different approaches and different methods of treatment
develops. The resultant consensus has the strength of the bundle which
the separate fagots never had.
2. Variety of Sources of Suggestions. Suggestions of subjects for
a study and recommendations for improvement come to a Conference like this
from widespread and different sources. Some are originally posed by
interested -- perhaps outraged -- individual citizens. Many are advanced
by an agency, or a number of agencies. -Some come from practicing lawyers
or organized groups of lawyers. Some are drawn from Congressional studies.
Some arise from students of government. Some originate in academic legal
studies. Some are recurrent--even ancient--puzzles. The area potentially
open to a body such as this Conference has been shown to be wide and varied.
3. Readiness to Recommend. The Conference proved that the agencies,
with outside conferees, are ready, able and willing to undertake delicate
and difficult tasks. It proved that they will aggressively attack their
own shortcomings. Many skeptics at the Bar and elsewhere did not believe
they would do so. But this Conference adopted recommendations on the
delegation of decision-making which had been the subject of differences
of opinion both in the Congress and between the Executive and the Congress,
recommendations concerning ex parte contacts, with which Committees of the
Congress have long been concerned, recommendations relating to such con-
troversial matters as rights to counsel and to papers. It unabashedly
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studied in depth the procedures of individual agencies and made suggestions
in respect to them.
1+. Unanimity in Basic Interest. In this Conference bloc division was
not discernible between practitioners and Government personnel, or between
big agencies and smaller agencies, or between departments and independent
agencies. Specters of such divisions were exorcised by an all-pervading
interest in the better administration of justice and better governmeent,
and by the active presence of strong personalities from many points of
origin.
5. Composite Expression. Each recommendation made by this Conference
represented a consensus of the views of officials designated for the task
by all the agencies in this field of government, leavened by practitioners
and educators. Thus for the first time the agencies have had a means by
which they could speak with a common voice, express a concerted view. To
officials in the upper echelons of the Executive Branch of the Government,
to Committees of the Congress, and to committees and sections of the organized
Bar, a Conference such as this supplies a ready means of ascertaining the
composite view of the agencies concerning problems of administrative pro-
cedures. Instead of fifty or a hundred responses to an inquiry along these
lines, a carefully prepared, intensively studied, publicly debated, single,
concerted response is available. The Committee on Interstate and Foreign
Commerce of the House has already hailed this instrument of assistance to
its deliberations.
We submit that these intangible results are effective factors in the
cause of improving the regulatory processes of the Government, so vitally
important in many phases of our national life.
H. R. Rep. No. 2553, 87th Cong., 2d Sess. 10-11 (1962).
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IV
SUMMARY OF RECOMMENDATIONS
Following is an informal summary of the major recommendat ions
adopted by the Conference. For precise terms, reference should ':)e made
to the full texts which appear as Appendix IV to this Report. If
legislation is required to implement a recommendation, the text so
states.
Ex Parte Communications. The Conference dealt with the delicate
and complex problem of ex parte communications between persons in and
persons outside the Government in respect to pending cases. It concluded
that a single code of behavior, applicable to all such problems in all
agencies, is not feasible. The factual circumstances giving rise to the
problems vary too greatly among the different agencies to be susceptible
to common treatment, except in the most generalized terms. Such general-
izations were deemed necessarily too vague to be helpful.
Accordingly the Conference promulgated a set of principles and rec-
ommended (Recommendation N. 16) that each agency formulate a code in its
own terminology, embodying these principles, for the governance of be-
havior in its proceedings. The principles thus enunciated were nine in
number, but the chief provisions were in the first section of the recom-
mendation. This section related to "on-the-record" proceedings. It
prohibited "unauthorized ex parte communication" between, on the one hand,
parties, agents for parties, cr interceders and, on the other hard,
agency personnel participating in the decision. "Ex parte communication"
was defined in rather broad, sweeping phrases to include both oral and
written communications, and then exceptions were noted. Generally
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speaking (again we note that reference should be made to Appendix IV for
precise definitions), excepted'from the prohibition were requests solely
with respect to status, facts of general significance to an industry (not
reasonably known to be material to a pending issue), and communications
authorized to be upon an ex parte basis by law, agreement, formal ruling,
or practice generally known, if the communication is promptly available
to all parties.
The Conference recommendation would prohibit requesting, entertain-
ing, making or soliciting an ex parte communication. An agency official
receiving a communication recognized as unauthorized would be required
to transmit it (or, if oral, a written memorandum of its substance) to
the Secretary of the agency, who would be required to put it in the pub-
lic file and send copies to all parties. It was recommended that parties
be permitted to rebut ex parte communications. For violation of the
prohibitions the Conference recommended that the agency codes provide
for censure, suspension, or revocation of the privilege to practice,
denial of any relief, benefit or license sought, and censure, suspension
or dismissal of agency personnel involved in the violation.
The Committee on Interstate and Foreign Commerce of the House of
Representatives, in the Report to which we have referred, announced that
it would expect all agencies subject to its legislative jurisdiction to
carry out this recommendation of the Conference.
Delegation of Decisional Authority. The Conference considered the
much-debated subject of delegation of decision-making authority. On the
one side of the argument is the pressing need for more efficient use of
time and energy of agency members and their top-level staffs. Automatic
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review by agency members of all findings made and conclusions reached by
hearing officers in the multitude of cases which pass through the admin-
istrative machinery is obviously time-consuming, exhausting, and, indeed,
actually impossible in any realistic sense. On the other hand are the
rights of the parties to agency consideration and agency decision. The
Conference recommended (Recommendation No. 9) that agencies be authorized
to accord administrative finality to presiding officers' initial and
recommended decisions, without agency review, unless the party seeking
review makes a certain showing. He would be required to demonstrate
prejudicial error in the proceeding before the presiding officer,, or
make a reasonable showing that the subordinate decision contains (1) a
finding of material fact which is clearly erroneous or (2) an erroneous
conclusion of law, or (3) involves an exercise of agency discretion or
(4) involves an important decision of law or policy. Further, it recom-
mended that the agency's decision to accord or not to accord adminis-
trative finality to a presiding officer's decision be not subject. to
judicial review, although the presiding officer's decision, if it thus
became the final decision of the agency, of course would be subject to
review.
This Recommendation would also eliminate doubt as to whether an
agency, if it does review an initial or recommended decision, is author-
ized to confine that review to specified errors and specified portions
of the record.
Some detail, both affirmative and negative in nature, was necessary
to effectuate the foregoing, and such details were included in the rec-
ommendation as adopted. The subject has been embodied in sever&1
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Reorganization Plans relating to specific agencies submitted by President
Kennedy to the Congress.
Debarment of Contractors. In the interest of fairness in the area
of procurement, the Conference recommended (Recommendation No. 29) dras-
tic changes in procedures involving the debarment of persons or firms
from Government contracting. Present practices of some agencies have
permitted contracting officers to debar contractors without prior speci-
fication of reasons or opportunity to be heard, and to circulate among
other agencies notice of such debarment. The result has been the so-
called "black list." The Conference recommended that debarment from
Government contracts be preceded by notice to all parties concerned,
stating reasons, and by opportunity for a trial-type hearing before an
impartial board or hearing officer; to be followed by a decision in writ-
ing, including findings, conclusions and reasons. The recommendation
contained a proposed framework of procedural safeguards in some detail,
relating to cases where criminal convictions or civil suits are involved
and cases involving fraud, substantial lack of responsibility, or lack of
integrity. It also dealt with suspensions and the terms therefor. It
included provisions which would require grounds for debarment to be ex-
plicitly set forth in published regulations, showing the standards and
scope of debarment in various types of contracts.
Delay in Rate-Makinzx. The Conference began a direct attack upon the
problem of delay, selecting for its first intensive consideration in this
area the rate-making cases. The recommendation (No. 19) proposed the
flexible employment of a variety of techniques to insure the presentation
of the great bulk of the evidence in written form at early stages of the
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proceeding, the prompt identification of issues on which oral hearing is
necessary, the contraction of the period of time in which necessary oral
hearing takes place, and the more effective and informed control of the
record-building process by the hearing officer, who would therefore be
enabled to issue a more useful decision. More specifically, the Confer-
ence would require that direct evidence-in-chief be submitted in advance
in writing. It urges trial examiners to use conference procedures to
the maximum extent possible. It urges them to limit cross-examination.
And it urges the elimination of "hearing by interludes" and the adoption
of continuous, uninterrupted hearing procedures. The Conference also
recommended in this regard the participation of agency staff members in
hearings of rate cases; and it recommended that hearing officers have
access, within appropriate limits, to specialized expert assistance in
analyzing the record in these cases, preparing data, etc.
Armed Services Board of Contract Appeals. Since 1949 the Armed
Services Board of Contract Appeals has consisted of three semi-autonomous.
panels (Army, Navy, and Air Force), each with its own chairman, determin-
ing appeals from disputes arising under contracts of its particular
service. Recently, with the establishment of the Defense Supply Agency,
the addition of a fourth panel has been under consideration.
In order to permit better utilization of board members through
greater flexibility in the assignment of cases, to avoid situations
wherein one panel is heavily overloaded while another is current, and to
reduce the expense of maintaining three or four separate file systems,
separate dockets, and separate clerical staffs, the Conference recom-
mended (Recommendation No. 6) that the Armed Services Board of Contract
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Appeals be constituted as a unitary board in the Defense establishment.
For like reasons the recommendation urged that subsidiary boards such as
the Corps of Engineers Board and the Quartermaster's Board, to the extent
practicable, be eliminated as soon as possible.
Competing Domestic Airline Applications. The Conference addressed
itself to the perplexing problems of the consolidation and joint hearing
of applications for new or modified domestic airline route authority.
It recommended (Recommendation No. 20), first, that the Civil Aeronautics
Board be given authority to consider competing applications by conducting
separate hearings on the applications and then consolidating the proceed-
ings for purposes of decision. This recommendation is conditioned upon
certain opportunity for excluded applicants to participate in the hear-
ings as intervenors, being allowed to present evidence and to cross-
examine adverse witnesses. Further, the recommendation would give the
Civil Aeronautics Board greater latitude in denying consolidation in
certain circumstances and relieve it of whatever obligation may now exist
to conduct a preliminary hearing on the consolidation issue. Implementa-
tion of this Recommendation would require legislation.
Mutually Exclusive Broadcasts Applications. The Conference recommended
(Recommendation No. 22) that the Federal Communications Commission take
several steps with regard to its procedures involving mutually exclusive
applications for broadcast facilities. It recommended that the Commis-
sion consider providing by general rule for the fuller development of a
system of qualitative priorities under which some applicants would be
automatically preferred over others, and for the selection of a licensee
on other than substantive grounds, when two or more applicants are found
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to be equally qualified. It recommended that the Commission re-examine
the conduct of its comparative hearings with a view to clarifying and
improving the criteria employed in their disposition and limiting the
scope of such hearings to issues significantly relevant to effectuation
of regulatory policies.
Further, the Conference recommended that the Commission be author-
ized to protect the integrity of any comparative -selection by ascertain-
ing through suitable procedures that a proposed transferee of the
successful applicant has qualities consistent with policies reflected in
the initial comparative selection.
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Right to Cou4,sel. In two recommendations (Nos. 15 and 25) the
Conference dealt with the sometimes perplexing problems of the right to
counsel. These actions were by way of implementing the Administrative
Procedure Act (Sec. 6(a)). Specifically, the Conference proposed defini-
tions of "accompanied,"'Fadvised" and "represented," as those terms are
used in section 6(a). It urged that counsel for persons compelled to
appear in an agency proceeding be permitted broader participation in the
representation of their clients, and that persons appearing by request or
permission be afforded the same right to counsel as are persons compelled
to appear.
Hearing Rzaminers and Goverment Attorneys. The Conference made
recommendations (Recommendation No. 28) relating to agency personnel in
three general areas: (1) advanced training of professional personnel,
(2) status and compensation of hearing examiners, and (3) the Federal
legal career service.
The Conference recommended that regulatory agencies provide for a
program of advanced training for highly qualified personnel, within the
agencies on a part-time basis or, in cooperation with the Civil Service
Commission, through short-term training programs. Further, it suggested
that a limited manber of the most promising career professional staff
members might be sent to universities for advanced study and research.
Several recommendations related to grades and compensation of
hearing examiners authorized under the Administrative Procedure Act, and
were designed to raise the calibre of these officers. These included
recaamnendations that there be not more than two grades for hearing
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examiners in the Government and only one grade in the general schedule for
hearing examiners in a given agency. It was recommended that there be
substantial and prompt increase in the compensation of hearing exaaminers.
The Conference recommended that candidates for positions as hearing
examiners be evaluated on the basis of training and experience and oral
and written examinations, and that lawyers of outstanding ability and
experience participate in the evaluation of candidates' qualifications.
Also, the register of persons eligible for appointment as hearing examiners
should be unranked, and all initial appointments as hearing examiners
should be made from the register. The first appointment, the Conference
recommended, should be probationary.
It was recommended that agencies, perhaps through their Chief
Hearing Examiners, develop techniques and conditions in which hearing
examiners might have greater professional pride and better serve their
agencies, and agencies should be encouraged to exchange the results of
their experience in this area.
Based upon a thorough study and after extensive debate, the Con-
ference recommended that the Civil Service Commission should continue to
administer the hearing examiner program, but that any successor organiza-
tion to the Conference should continuously observe and study the policies
and administration of the hearing examiner program.
In respect to lawyers in goverment service, the Conference recom-
mended that there be established a career service, and that administration
of this service be in the Civil Service Commission, provided stated
organizational arrangements are established.
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The Conference concluded that agency programs for recruiting
exceptionally well qualified law graduates should be continued, and that
agencies not having such programs should consider establishing them.
Other measures for improvement in recruiting were recommended.
The Conference was of the view that classification standards
for attorney positions should permit allocation upon the basis of the
work involved, regardless of technical review or of supervisory functions.
It was recommended, finally, that a reasonable number of attorney posi-
tions be allocated to all of the "supergrades" in the general schedule.
Judicial Review of ICC Orders. For historical reasons, procedures
for review of orders of the Interstate Commerce Commission in the
United States courts differ from the traditional patterns which have
developed governing judicial review of administrative action. Since 1903,
orders of the Commission, except reparation..orders, have been reviewed
by three-judge Federal district courts specially constituted under au-
thority of 28 U.S.C. ?? 1336, 2284, and 2325. The decisions of these
courts may be taken to the United States Supreme Court by direct appeal,
rather than by certiorari proceedings.
The Conference concluded that the reasons for conforming procedures
for review of these orders to accepted concepts of judicial review far
outweigh the reasons for perpetuating present procedures. It recommended
(Recommendation No. 3) elimination of the use of special three-judge
district courts for review of these orders and, instead, would subject them
to judicial review in the United States Court of Appeals as is generally
the case with the orders of other Federal regulatory agencies. Subsequent
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Supreme Court review would then be upon writ of certiorari, rather than
upon appeal. The Conference proposed (Recommendation No. 4) further pro-
cedures for improving review of orders of the Interstate Commerce Ccmmission,
all of which were designed to increase efficiency and save time, effort
and expense in appellate procedures.
Subpena Power. The Conference recommended (Recommendation No. 13)
a series of principles designed to achieve fairness and uniformity in
subpena practices. These principles may be summarized as follows: In
adjudications the presiding officer should have authority to issue subpenas,
and they should be issued upon the request of any party. In investigatory
proceedings, the agency, any member thereof, or any officer designated for
the purpose should have such authority. It was recommended that the:
authority to summon witnesses extend throughout the United States and its
territories and possessions, and that enforcement be available through
the United States district courts. Fees to witnesses should be payable
by the person or agency at whose instance they appear, at. the same rates
as in the Federal courts.
Production of Records and Briefs upon Judicial Review. The Con-
ference considered matters of the expense incident to court review. It
recommended (Recommendation No. 5) three measures which would substantially
reduce such expense: that courts reviewing administrative action permit
(a) agencies to produce the records in the administrative proceedings by
means which would eliminate the need for reproducing that record upon
judicial review; (b) the submission of briefs produced by means other than
printing; and pending the implementation of (a), the designation after,
rather than before, the filing of briefs of the portions of the record
necessary to be reproduced.
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Enforcement of National Labor Relations Board Orders. The at-
tention of the Conference was directed to delay experienced in the enforce-
ment of National Labor Relations Board orders. The Board must seek an
order of enforcement from a United States Court of Appeals. Under present
practice this involves a period of waiting to see if a party to the case
intends to seek judicial review of the order. The Conference recommended
(Recommendation No. 18) a procedure resulting in automatic judicial
enforcement of orders of the Board, if no party promptly challenges the
order. If no such challenge be forthcoming within 4+5 days after the
Board has made its order, the order, after due notice to all parties,
would be enforced without further proceedings by entry of an appropriate
decree of the court.
Government Contract Appeals. The Conference recommended (Recom-
mendation No. 12) that agencies having internal appellate entities which
render decisions or opinions in disputes under agency contracts, afford
contractors the opportunity to know and to contest the evidence which
supports the contracting officer.
In the course of studies of agency procedures for handling appeals
from contract disputes, instances were noted in which agencies had developed
rules of procedure for such cases but had never published them, and had
prepared written opinions but made them available only to parties to the
particular proceeding. The Conference recommended (Recommendation No. 7)
that agencies which have established procedures and boards for hearing
contract appeals should publish, or make available for publication, their
rules of procedure and all the decisions of such boards, excepting only
decisions to be kept secret in the interests of national security.
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Discovery Techniques. The Conference approved the principle that
in adjudicatory proceedings agencies should establish procedures for the
revelation of facts by the parties before formal hearing, but it went only
so far as to recommend (Recommendation No. 30) that the agencies implement
this principle to the extent and in the manner appropriate to their
procedures.
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Statistical Analysis of Proceedings. Up to the present time
there have been no standards or criteria by which delays or backlogs
in agency proceedings could be measured, there being no forms of
reports which permit comparative evaluation of these procedures or
effective dissection into stages.
The initial collection of information by the Committee on
Statistics and Reports revealed that during the fiscal year 1960
approximately 80,140 formal proceedings for the determination of
private rights and obligations had been commenced before more
than 100 boards, commissions, and other agencies of the Government.
Statistical analysis is essential to the comprehensive considera-
tion of many problems, particularly the problem of unnecessary
delays.
Accordingly, as a tool in the immediate work of the Conference
and for use generally in efforts toward improvements in procedures,
the Conference adopted as its first recommendation (Recommendation
No. 1) a plan to collect and publish statistics on agency proceedings,
looking toward the development of a continuing system for the
compilation and publication of useful data. The product of this
recommendation was a two-volume compilation, describing the kinds
of proceedings conducted during the fiscal year 1961 and providing
volume, backlog, and time-study data thereon. Based upon this ex-
perience the Conference undertook (Recommendation No. 17) a second
compilation dealing with fiscal 1962. This. was published in
December 1962. At the Fifth Plenary Session the Conference
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recommended (Recommendation No. 27) that provision be made for
continuing this effort, expanding and improving the information
thus assembled, and developing a foundation for a continuing system.
For the first time in the history of this Government there is
available, in the data accumulated by this Committee, the basic
material upon which realistic studies of the time consumed in
administrative proceedings can be made. Two hundred sixty-eight
types of proceedings were analyzed and grouped in a classified
index according to their nature and purpose. They were placed in
a directory organized by major parent agencies. The Committee had
been furnished by the agencies with data from their docket entries
in individual cases for the two years. By the use of a computer
these figures were translated into periods of time consumed in the
separate stages of the proceedings. For example, the analysis
shows for each case the number of days from the start of the pro-
ceeding to the completion of the pleading stage, from the latter
date to the opening of the hearing, the number of days consumed
in hearing, and the period from the close of the hearing to the
date ready for preliminary decision, from the latter date to
the initial decision, and from that time until the final decision.
The time for each of the several stages of each class of proceed-
ings was totaled and averaged, and median figures were computed.
This accumulation, analysis and arrangement of statistical data
is dramatic in its way and undoubtedly supplies invaluable
material for far-reaching and intensive studies of administrative
proceedings.
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Several recommendations adopted by the Conference merely
authorized the submission to named agencies of suggestions for those
agencies' consideration. In these instances it made no firm recommen-
dations.
Broadcast Licensing. By one of these (No. 23) the Conference
transmitted to the Federal Communications Commission several proposals
relating to the licensing of broadcast facilities. These included
(a) discontinuance of the use of formal hearings on applications
presenting no substantial material question of fact; (b) increase in
the authority of hearing examiners to determine interlocutory questions;
and (c) fuller publication of the criteria employed in judging station
program proposals.
Licensing of Truck Operations. By another such recommendation
(No. 14+) the Conference transmitted to the Interstate Commerce
Commission for its consideration a number of proposals relating to
the licensing of truck operations. Most of these proposals were
concerned with the Commission's procedures prior to designation of
applications for hearing. Their purpose was to facilitate the screen-
ing out of those applications filed without substantial foundation, to
assure that protests are based upon genuine opposition, and to reserve
oral hearings for those instances in which there is a real dispute
between opposing parties. The proposals also advocated the require-
ment that certain portions of the parties' evidence be submitted in
written form; urge greater supervision and coordination of the schedul-
ing of applications for hearing; and advise similar coordination in
establishing channels for intra-agency review of hearing examiner
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decisions.
Greater authority for hearing examiners was suggested, both in
the resolution of interlocutory matters and in the disposition of
applications not requiring full evidentiary presentation. Finally,
it was suggested that the extent to which hearing examiner conclusions
may be adopted in agency opinions reviewing the hearing examiner
decisions be clarified.
Domestic Air Route Authority. Another set of suggestions
(Recommendation No. 21) were submitted to the Civil Aeronautics
Board. They concerned techniques for improving proceedings relative
to domestic air line route authority. Among them were suggestions that
the Board state more precisely its reasons for instituting or refusing
to institute a route proceeding, the granting of greater authority
to hearing examiners to publish orders consolidating proceedings for
hearing, and additional assistance to the Board's Special Counsel
for Routes in the interests of expediting internal review of con-
solidation orders.
Suggestions were submitted relating to strictly intra-Board
practices. Such for example, were the use of the Opinion-Writing
Division, the authority of Bureau counsel upon argument, the
identification of opinions, consultation between the Bureau of
Economic Regulation and Bureau counsel, and the more complete
informing of hearing examiners in respect to policies.
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Miscellaneous. The Conference made a number of recommendations con-
cerning matters which, while important, do not loom large in the total
field of agency procedure. Such are recommendations respecting rights to
papers and evidence (Recommendation No,. 24), representation by attorneys
(Recommendation No. 26), the drafting of documents to be published in the
Federal Register (Recommendation No. 10), more widespread sale of the
Government Organization Manual (Recommendation No. 11), and machinery
for continuing self-study of procedures by the several agencies
(Recommendation No. 8).
Office of Administrative Procedure. Contemplating the interim
period which may ensue, due to a number of factors, between this Con-
ference and the active functioning o' a successor office or organiza-
the Conference made important recommendations (Recommendation
No. 2) concerning the Office of Administrative Procedure in the De-
partment of Justice. The process of developing improvements in ad-
ministrative procedure is necessarily a continuing one. It involves
not only periodic aid fui:.damental re-examina-,,ion, but the proper so-
lution of day-to-day problems, many of them not suitable for Conference
study. The Conference was impressed with the value of the services
performed by the small s-.:.aff of this Office in recent years in pro-
viding assistance in such problems.
The Conference recommended that the existins; Office of Adminis-
trative Procedure be promptly more fully staffed in order that it
migh, better perform its assigned functions pendin.:: completion of
such steps as are necessary ,:c provide full-:,ime services in the
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Implementation. No organized effort to implement the reconmienda-
tions of this Conference has been made. This was for several reasons.
First and principally, most of the recommendations of the Conference
have been addressed to the President, and it was deemed best to await the
final plenary session of the Conference and its final recommendations,
so that its work might be considered and transmitted in proper context,
rather than upon a piece-meal basis. Second, the eighteen months of the
prescribed life of the Conference were not long enough to organize an
effective program for these purposes; the consideration and adoption of
the recommendations themselves consumed much time. Furthermore, a pro-
gram of action of the scope and variety required for realistic results
in this field requires top-level decisions. Some of the recommendations
are for legislation; some are addressed to Cabinet Departments; and some
are addressed to the agencies. Some of them are firm recc mendations,
and some are merely suggestions. Decisions as to the manner of imple-
mentation require time and careful planning. A continuing organization
would necessarily include machinery whereby its recommendations for im-
provements of procedure would be effectively carried out. This would
be a vital element of any such undertaking.
Despite the foregoing, recommendations of this Conference have to
some degree met with voluntary and spontaneous adoption. Many of the
agencies - if, indeed, not all. - have undertaken reexamination of their
procedural rules. Agencies preparing for the first time rules of pro-
cedure for formal hearings have followed recommendations of the Confer-
ence. The recommendation respecting the unification of Armed Services
Boards of Contract Appeals has been put into effect. Drafts of bills
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respecting the review of Interstate Commerce Commission orders have been
prepared. Various agencies have undertaken steps in respect to the dele-
gation of decisional authority. Since no reports have been sought from
the agencies as to their unsolicited adoption, rejection, or pending
consideration of Conference recommendations, no accurate statement on
that subject is possible at this point.
As we have said, the Chairman of the Committee on Interstate and
Foreign Commerce of the House of Representatives, the Honorable Oren
Harris, has advised the Chairmen of the six large agencies within its
legislative jurisdiction that his Committee will consider it to be the
responsibility of each such agency to carry out the recommendations of
the Conference in respect to ex parte communications, and to promulgate
codes of behavior based on the principles adopted by the Conference.
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UNIERLYING REPORTS
Distinguished specialists in administrative law and government, es-
pecially from the academic world, made a number of studies in depth for
the Conference in various phases of the procedures of the agencies. Some
of them have been regarded as by far the best studies available in their
respective fields. One of the valuable products of the Conference is this
important collection of studies and reports.
The distinguished legal scholars who prepared the bulk of these re-
ports were Auerbach of Minnesota, Crenton of Michigan, Jones of Columbia,
Kramer of George Washington, Lester of Cincinnati, McKay of New York Univer-
sity, and Metzger of Georgetown. Principally, Professor Auerbach did 4h e
reports on decisional authority and ex parte communications; Professor
Cramton on ratemaking in general; Professor Jones on trucks, airlf.nes and
broadcasting (all in the area of licensing); Dear Kramer, i.-.: had the as-
sistance of Professor Miller of his own school, on Judicial Review of Labor
Board and Interstate Commerce orders; Professor Lester on hearing examiners
and government lawyers; Professor McKay on discovery and subpena power; and
Professor Metzger on government contracts. Professor Priest of Virginia is
working on the proposed manual for protracted cases. Although a summary of
the contents of these works is scarcely possible in a few paragraphs, some
sense of their variety and of their scope and depth may be gathered from a
brief review of their contents.
The Committee on Personnel prepared three reports, the first of which
deals with the advanced training of professional personnel in the Government
at large, and in the regulatory agencies in particular; training, that is,
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in the substantive matters of agency concern. The second section of the
report of the Committee deals comprehensively with the recruitment, exami-
nation, appointment, compensation, and grade classification of Section 11
hearing examiners. It also considers how the Federal hearing examiner pro-
gram should be administered and by what agency. The third section of the
report of the Committee on Personnel deals with the problems of Government
attorneys, and reconsiders and re-evaluates the case for a career-merit
service for Federal attorneys, including such special features as honor and
intern programs, as well as further measures that may assist the Government
to obtain and retain a legal corps of the highest competence. As in the
report on hearing examiners, the Conference, in the report on Government
attorneys considered how and by what agency the career-merit system for
Government attorneys should be administered.
The Committee on Internal Organization and Procedure worked at great
length and in much detail on numerous aspects of agency organization and
procedure, producing a considerable body of material. It focused, in the
main, however, on two problems of great importance to the conduct of agency
proceedings - the matter of summary affirmance of initial decisions and the
matter of ex parte communications. Both these issues were the subject of
proposed legislation in the 87th Congress. Proposals to enlarge the scope
of agency power to delegate final decisional authority and to limit the
issues on appeal from initial decisions were embodied in S. 1734; and H. R.
14+ dealt with the subject of improper ex parte communications. The Com-
mittee on Internal Organization and Procedure prepared reports on the pro-
visions of the Administrative Procedure Act concerning agency review of
initial decisions. In considering the delicate problem of ex parte communi-
cations, the Committee made an analysis of proposed legislation and of the
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legislative history of Sectio.! 5(c) of the Administrative Procedure Act,
and reported on the rules governing ex parte contacts enforced in six of
the regulatory agencies.
The Committee on Rulemaking concentrated I s study on the improved
conduct of Federal rate proceedings, and made recommendations based on a
general report and five studies dealing with particular agencies - Inter-
si.ate Commerce Commission, Federal Power Commission, Federal Communications
Commission, Civil Aeronautics Board, and the Department. of Agriculture.
The general report, after consideration of the basic elements of statutory
rate procedures and of the various types of rate proceedings and their
-significant differences, examines in detail a number of special phases of
the process by which rates are made. Among these are the nature of the
hearing provided in rate cases, reduction of the number and the narrowing
of the scope of rate proceedings before hearings, improvements in the
hearing process itself, improvement of the decisional process, and measures
to increase the effectiveness of this form of regulation. In the last of
these concerns, attention is given to the improvement of the quality of
agen,-y personnel at all levels, the respective roles of rulemaking and ad-
judication in the development of rate policies, the feasibility of clari-
fying substantive standards, and the relative importance of concern with
"procedural' as distinguished from "substantive" matters. It is the sense
of the report that many of the difficulties encountered by the agencies in
rate-making are substantive in character, and not immediately within the
control of the agency, all by itself, to correct.
The basic reports of the Committee on Licensing deal with the licensing
of truck operations by the Interstate Commerce :ommission, the licensing of
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airline operations,by the Civil Aeronautics Board, and the licensing of
broadcast facilities by the Federal Communications Commission. Each study
begins with a consideration of the legislative background of the licensing
provisions under consideration, the pertinent texts of the licensing stat-
utes themselves, and the substantive policy considerations involved in
their application. This background is intended to clarify the purposes the
licensing process was intended to serve, and to identify the kinds of sub-
stantive issue with which the process is connected. The economic structure
of the regulated industry is also examined to establish the context in which
the licensing process operates. Thereafter, attention is given to the ad-
ministrative organization and the procedures followed in the licensing pro-
cess, including the informal working techniques employed by each agency.
Consideration is given to the volume of applications handled within various
classes and data are assembled on the time typically required to move from
one procedural step to the next in processing applications within each class.
The reports then consider various problems suggested by these descrip-
tive materials, and assess the value of the various alternatives of solution
they present. Consideration is given to the question whether formal hear-
ings are required for different classes of licensing application; the fuller
utilization of written procedures; the amplitude of the authority of hearing
examiners to deal with proceedings before them; the adequacy of provisions
for antra-agency review; possible improvements in the decisional process; the
clarification of various standards enforced by the agency; and measures for
the reduction of delay in handling applications.
The Committee on Compliance and Enforcement Proceedings, like other
committees of the Conference, prepared several monographs and summary state-
ments of the authority and practices of the agencies for the information of
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the Conference. The first of four principal reports by the Committee
provided the basis for Conference consideration of the subpoena pcwer
in Federal administrative proceedings. This report summarizes typical
agency practices, describes the procedures followed in special situations,
and discusses the constitutional questions that have developed and been
resolved in connection with investigatory subpoenas. It also states and
explains the basis for recommended uniform principles to be applied to
issuance, quashing, geographical scope, fees to witnesses, and methods
of enforcement.
The second principal report of the Committee on Compliance and En-
forcement Proceedings deals with the right to counsel in administrative
proceedings. The Conference considered the meaning, in general, of the
"right to counsel," the ways in which it has been variously interpreted
in agency practice, and the way it should be understood in light of the
phrase, "right to be accompanied, represented, and advised by counsel" in
Section 6(a) of the Administrative Procedure Act. The third report out-
lines the need for greater uniformity in the rules relating to the recog-
nition of attorneys; and the fourth principal report covers procedures
for discovery and voluntary disclosure. Consideration is given to the
arguments for the extension to agency proceedings of the more liberal
discovery practices in civil proceedings in the United States courts.
The principal report of the Committee on Claims Adjudication dealt
with procedures for debarment and suspension of contractors. In addition
basic studies were made and memoranda prepared on various aspects of
claims adjudication. Each study described existing administrative pro-
cedures in the major procurement agencies, discussed the shortcomings of
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such procedures where relevant, and made detailed suggestions for improve-
ment.
Three major reports were prepared by the Committee on Judicial Re-
view. The first dealt with the judicial review of orders of the Interstate
Commerce Commission and, like the reports of other committees, was based
both upon documentary sources and upon interviews with agency and other
Government personnel. The questions considered in the report included the
procedure of review of Interstate Commerce Commission orders by specially
constituted three-judge district courts; problems of venue; the method of
reproduction of the record on review; and the relative advantages and dis-
advantages of final Supreme Court review of Interstate Commerce Commission
orders by writ of certiorari rather than by appeal.
The second principal report of the Committee on Judicial Review dealt
with the reproduction of the briefs and records on review of administrative
orders. The report includes information about the use of methods other
than printing for the original production of the record, in order to elimi-
nate the need for reproduction of records on judicial review. Similar in-
formation is available with respect to appellate briefs. Particular atten-
tion was given to the use of joint appendices to the briefs.
The third of the three major reports concerned the review of orders of
the National Labor Relations Board. A comprehensive report was prepared
which summarizes the history of judicial review of administrative orders;
studies which have been made in the past concerning their enforcement; and
discussions held with members of the bar and with governmental officials as
to such enforcement.
At the request of the Committee on Judicial Review, the Office of Ad-
ministrative Procedure in the Justice Department compiled, in two volumes,
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descriptions of all of the different kinds of formal administrative pro-
ceedings conducted by Federal agencies, together with information identi-
fying statutory provisions for judicial review of decisions in each kind
of proceedings. In a third volume, the Committee analyzed in outline form
each of the statutes thus identified for purposes of affording comparisons
with respect to some eighteen features of the provisions for judicial re-
view, such as, who may obtain review, the form of pleading by which review
is sought, the courts having jurisdiction to review, provisions for inter-
locutory relief, scope of review, the relief available, etc. The vast
amount of information collected in these three volumes thus provides the
basic data for comprehensive comparative study in the field of judicial re-
view of administrative action.
The studies and reports of the Administrative Conference constitute
a valuable collection of papers on the administrative process. They have
served an immediate purpose in the development of the recommendations of
the Conference. They have an enduring value to governmental officials,
members of the Bar, and students of Federal administrative procedure as
works of scholarly research and judgment in the sensitive area of govern-
mental regulation.
V.C
UNFINISHED BUSINESS AND PROJECTED STUDIES
The range of relevant inquiry confronting the Conference at its in-
ception was so vast that it is no more feasible now than it was then to
identify and enumerate all of the potentially fruitful subjects of study.
Indeed, because of the limited life of the Conference under the Executive
order creating it, it became apparent quite early in its experience that
a conscious effort was required to limit its work to projects which would
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have some chance of completion in the prescribed period. Accordingly,
the Committees, to whom the Council had originally suggested numerous
specific areas for investigation, were repeatedly admonished to concen-
trate selectively upon matters as to which, in the time available, reason-
able research could be accomplished and made the basis of recommendations
to the Conference. Since Conference action is the culmination of a pro-
cess involving, successively, research reports by the staff directors and
consultants, the formulation of recommendations by the Committees, consider-
ation of such recommendations by the Council for possible transmission to
the Conference, and, finally, consideration and debate by the full Confer-
ence in plenary session, the problem of timing in relation to the relatively
short life of the Conference has been a formidable one.
The Committees have manfully endeavored to cope with this problem, and
their efforts in this regard have not been unavailing, as evidenced by the
number of significant recommendations emerging from the Conference. The
nature of the subject matter is such, however, that it has been neither pos-
sible nor desirable to translate all the work that has been undertaken into
terminal results; and it also has not been feasible to initiate work on all
projects of obvious relevance to the purposes for which the Conference was
created. The individual Committees, thus, found themselves at the close of
this Conference with an inventory of matters in both such categories, that
is to say, projects launched but not advanced to the stage of Conference con-
sideration, and projects identified as fully appropriate for investigation
but in respect of which activity of any degree had to be deferred. Even
these two groups are not exhaustive inasmuch as the second in many instances
is comprised of matters which were first conceived as candidates for accom-
plishment during this Conference, leaving other subjects undiscussed in tacit
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recognition that they were completely outside that possibility.
Committee on Claims Adjudication. This Committee found itself at
the close of the Conference with three items directed towards the achieve-
ment of a more comprehensive administrative apparatus for the resolution
of contractual disputes, upon which work has been done but which remains
incomplete in terms of recommendations to the Conference. These were:
(1) The expansion of the jurisdiction of governmental.
boards of contract appeals to include disputes over the
interpretation or application of sub-contracts.
(2) The enlargement of the jurisdiction of governmental
boards of contract appeals beyond disputes as to interpretation
or application into such areas as breaches of contract, rescis-
sion, reformation and equitable adjustments of various kinds.
(3) The establishment of administrative appellate proce-
dures in respect of disputes over contract awards (other than
matters relating to the debarment or suspension of individual
bidders or contractors, which have already been the subject of
a Conference recommendation).
These unfinished matters, in common with the various Conference recom-
mendations which emanated from this Committee, relate to claims deriving from
Government contracts. As its name suggests, however, the Committee's scope
extended to all manner of claims against the Government. These include those
sounding in tort as well as contract, claims involving land, and the great
variety of claims which can be characterized as benefit determinations (i.e.,
social security, unemployment compensation and retirement matters, veterans
affairs, maritime subsidies, agricultural payments, and similar matters under
statutory systems or grants). These categories are of no less significance
than contract claims, but the Committee concluded quite sensibly at the out-
set that it would have time during this Conference only to address itself to
the latter.
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Committee on Compliance and Enforcement Proceedings. Research was
carried on and materials assembled with respect to two subjects as to
which there has not been time for the formulation of recommendation.
These matters are (1) the scone of agency orders, including particularly
settlements, stipulations anc consent orders; and (2) the variety and
impact of formal agency sanctions.
For future study the Committee has, with no purpose to be exhaustive,
denominated the following as aprlropriate for investigation:
(1) Pre-hearing conferences.
(2) The conduct of the hearing, with particular
reference to evidentiary matters and. the
problems of recesses.
(3) Advisory opinions.
(4) The use of informal sanctions.
Committee on Internal Organisation and PrLceaure. A project which
the Committee did not have time to consiC:.er is a study by the Committee
staff director of the internal organization and procedures of the Federal
Trade Commission. The final text of this report will have had the benefit
of examination and comment, first, by members of the Commission and its
staff and, later, by members of the FTC Bar. The Committee anticipates
that the report will be a useful source of recommendations when and if
the opportunity is provided to consider it in detail The Committee
also received rOm its staff a memorandum with respect to the publication
of dissenting opinions by agency members, but time did not permit con-
sideration of this cubiect.
This is the Committee which originated the recommendation on ex
parte communications embodied in the Conference's Recommendation No. 16.
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The cede there proposed was expressly limited to communications from
without the agency. Left untouched because of time is the almost
equally important problem of internal communications within the agency.
Other areas which the Committee has identified as worthy of future
study are:
(1)
Delegation of authority in these aspects -
(a) Decision making in respect of
matters where a formal hearing is not
required; and
(b) The institution of investigations
or prosecutions.
(2) The scope of the power to be placed in the
agency chairman.
(3) The extent to which delegation of decision-
making affects the volume of cases for which
judicial review is sought.
(4+) The degree, manner and results of the utilization
by the agencies concerned of the powers of delegation
granted in the Reorganization Plans of 1961 and in the
special delegation legislation enacted for the Inter-
state Commerce Commission, the Securities and Exchange
Commission, and the Federal Communications Commission.
(5) An evaluation of the code of administrative pro-
cedure proposed by the American Bar Association in the
light of the work of this Conference.
Committee on Rulemaking. The Committee decided at the outset that
the problems of delay and expense in administrative proceedings are
frequently associated with rate cases at certain of the major agencies
and could most usefully be explored in the first instance by a survey
of those cases. Accordingly, thorough-going reports were prepared on
the conduct of rate cases at the Interstate Commerce Commission, the
Federal Power Coaanission, and the Federal Communications Commission.
The Committee, on the basis of these reports, formulated the Conference'E
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Recommendation No. 19, but it recognized in terms that additional rec-
o~meendations probably would be forthcoming after further opportunity
to consider these reports. Research was undertaken on the holding of
rate proceedings by the Department of Agriculture, but there was not
time to prepare and circulate a report.
The scope of the Committee's assignment extended to informal rule-
making, as well as to the formal type represented by the rate case.
The Committee concluded, however, that time would not permit the ex-
ploration of this important area, and it was reserved for the future.
Formal rulemaking proceedings are not, of course, confined to rate
cases, and the Committee believes that the use and appropriateness of
adjudicatory procedures in these other types of rulemaking is a promis-
ing subject for future exploration. A third project for the future is
a survey of the non-adversary type of rulemaking proceeding, involving
the issuance of substantive or procedural rules of general applicability.
Two aspects of these general rulemaking proceedings which appear to
merit attention relate to the notice to be given to the parties, and
the standards to be applied in the determination of who should be per-
mitted to participate.
Committee on Licenses and Authorizations. Existing research remains
incomplete in respect of possible amendments of the Administrative Pro-
cedure Act for the purposes of (1) enlarging the agencies' power to select
hearing officers for economic licensing cases not involving legal issues
or propriety of past conduct and to give such officers greater freedom to
consult with non-participating agency personnel; and (2) fostering greater
clarity and consistency in the articulation from case to case of agency
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standards and policies.
Although reports were completed and issued on truck licensing by
the Interstate Commerce Commission, radio and television licensing by
the Federal Crmunications Commission, and domestic air carrier licens-
ing by the Civil Aeronautics Board, there has not been time to get out
a report reflecting research on the certification of natural gas pipe-
lines by the Federal Power Commission. These are, of course, four
vital areas of Federal licensing.
Committee on Judicial Review. As the Conference neared its end,
this Committee released for circulation a massive compilation of all
Federal statutory provisions relating to judicial review of administra-
tive action. Among the purposes which motivated this compilation were
those of (1) determining whether there is any rational basis for the
existence of District Court review in some cases and Court of Appeals
review in others; and (2) ascertaining, from a comparative analysis of
the different modes of review presently provided, whether it may be
practicable to devise one or two simplified methods of judicial review
for all administrative action. The pursuit of these purposes is for
the future, as is also consideration of a proposal pending in the Com-
mittee that all findings of fact by administrative agencies in pro-
tracted proceedings be required to be annotated to the record.
Another subject marked by the Committee for future examination,
and one on which no work has been started, relates to the reviewability
of administrative action in certain types of rul auLk ng where a formal.
record hearing is provided by the agency although not required by law.
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Committee on Personnel. The studies of this Committee during the
life of the Conference were addressed principally to hearing examiners
and legal personnel. Important as these are in the administrative
process, they do not, as the Committee recognizes, include many impor-
tant categories of professional and technical people who perform equally
vital roles in that process. The Committee also expressly excluded
from its work problems with respect to the appointment and tenure of
agency members. Thus, although no incomplete projects are pending,
the Committee's area of interest has by no means been encompassed by
the work of this Conference. The Committee is of the view that the
policies and administration of the hearing examiner program are an
appropriate subject for continuous observation and periodic reappraisal,
as is also the relationship of the Civil Service Commission to the ad-
ministration of programs for professional personnel generally.
Committee on Information and Education. This Committee has one
major unfinished project in train, This is the proposed manual on pro-
cedures for protracted administrative hearings. Conceived as an
analogue of the handbook on protracted litigation prepared by the
Judicial Conference of the United States, the proposed manual is in
draft form and has been widely circulated for comment .
Another project in the preliminary stage is the preparation of an
indexed digest-,guide to all Federal laws in the United States Code and
all regulations in the Code of Federal Regulations relating to the
availability to the public of governmental information. The purpose of
this compilation is twofold: one, to enable each citizen to ascertain
conveniently what information he is entitled to have and the source of
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his right, and, two, to permit a survey to be made of the extent to
which Federal departments and agencies are currently complying with
such laws and regulations.
A continuous function of the Committee is the holding of seminars
in various parts of the country in association with bar associations,
lax schools, and other interested groups, where information may be both
collected and disseminated with respect to administrative activities.
A specific project for the future is an effort to compile a manual on
the preparation and presentation of economic and scientific evidence.
The Committee has also suggested that it would be desirable at a later
date to initiate programs for (1) the interchange of American and
foreign government career personnel for the purpose of generating com-
parative knowledge of the administrative process, and (2) the creation
of a coordinated system among the agencies for the employment of
mechanical means of carrying on legal research.
Committee on Statistics and Reports. This Committee collected
material descriptive of the methods and systems by which statistical
data relating to administrative proceedings are handled by the leading
agencies. It would be useful for this material to be analyzed and dis-
seminated to all the agencies for their information and possible utiliza-
tion or adaptation. We have already described the statistical reports
for fiscal years 1961 and 1962.
The computer has significance for the administrative process. Its
use in the areas of information acquisition, storage, and retrieval has
wide implications for the more effective management by the agencies of
the dispatch of their business, as well as for private parties in the
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enhanced effectiveness and reduced costs of making their presentations
in administrative proceedings. The provision of skilled guidance for
the agencies in using the computer is a continuing project of the first
magnitude. Within the time available, the Committee at this Conference
was able only to envision the possibilitlae, not to realize them.
Matters UnassigJ d, to Committees. In addition to the several
subjects noted by the Committees as prosper for future consideration,
several subjects were brought to the attention of the Council but were
not, because of time limitations, referred to Committees. These in-
clude the possibility of uniform rules of procedure, the feasibility
of automatic retrieval and coordination of research material, the pro-
cedures now followed in the leasing or other disposition of public lands
(a matter called to the attention of the Conference by Mr. Justice
Douglas), and a great many projects in the general area of basic govern-
mental principles involved in the processes of regulatory agencies.
VII
STATISTICAL VIEW
As we have already pointed out, the total membership of the Con-
ference was 87 general members, plus the Chairman and the 12 Congres-
sional liaison members.
The Conference met in six plenary sessions, all. in Washington,D.C.
The first four sessions were held in the State Department Building;
three in the International Conference Roma, and one in the West Audito-
rium. The fifth session was held in the Interstate Commerce Commission
Building, and the sixth and final session in the Senate Appropriations
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Committee Hearing Room in the Nev Senate Office Building.
In order that work might be started before the summer of 1961.,
the First Plenary Session was held on June 27, 1961. The fives later
sessions convened on December 5 and 6, 1961, April 3, 1962, Jim 29,
1962, October 16, 17, and 18, 1962, and December 4 and 5, 1962. The
first session was attended by 76 members, the second by 74 members,
the third by 77 members, the fourth by 69 members, the fifth by 81
members, and the final session by 72 members.
The nine standing committees met for the first time immediately
following the First Plenary Session. During the 18 months which fol-
loved there were a total of 93 such committee meetings through which
the committees directed staff activity, critically examined the prod-
ucts of their research and study, and developed proposed recomenda-
tions for consideration and debate by the full Conference.
Initial arrangements for the operation of the Conference included
the establishment of an inter-agency group fund, pursuant to authority
contained in the Executive order and 31 U.S.C. ? 691. As soon as the
Council had determined which agencies would participate in the Confer-
ence through the designation of members, the agencies were asked to
contribute from their 1961 appropriations $1,000 for each member
designated and a like amount from 1962 funds. In this way $60,000
was made available for the first few months of Conference operation.
In addition to the research and staff assistance made available
to the Conference from the Office of Administrative Procedure in the
Department of Justice under the provisions of the Executive Order, 15
legal scholars from university faculties were engaged as part-time
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employees to assist in Conference studies. Also, arrangements were
made with participating agencies under which 35 agency lawyers were
made available to the Office of Administrative Procedure on a part-
time basis for Conference research. Subsequently, others were em-
ployed, as needed. During the entire ].8-month experience, 35 persons
were employed and paid per diem compensation to assist with committee
and Conference work, and 40 agency attorneys contributed to the re-
search which was conducted.
In September 1961, Congress added to the funds available an
appropriation of $150,000 for Conference operations during the re-
mainder of the fiscal year 1962, and in October 1962 an additional
$100,000 was appropriated for the six months of fiscal year 1963 in
which the Conference would be in operation.
At the end of fiscal year 1961, $28,018.09 of the funds con-
tributed to the inter-agency group fund remained unobligated. At
the end of fiscal 1962, $57,5+3 remained unused from the total funds
available. These unobligated balances were, of course, released to
the Treasury of the United States.
Respectfully submitted
For the Conference
By
E. Barrett Prettyman,
Chairman.
December 15, 1962
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THE WHITE HOUSE
EXECUTIVE ORDER
10934
ESTABLISHING THE ADMINISTRATIVE
CONFERENCE OF THE UNITED STATES
WHEREAS the performance of regulatory functions and
related responsibilities for the determination of private
rights, privileges, and obligations by executive depart-
ments and administrative agencies of the United States
Government substantially affects large numbers of private
individuals and many areas of economic and business
activity; and
WHEREAS it is essential to the protection of private
and public interests and to the sustained development of
the national economy that Federal administrative procedures
ensure maximum efficiency and fairness in the performance
of these governmental functions; and
WHEREAS. the steady expansion of the Federal adminis-
trative process during the past several years has been
attended by increasing concern over the efficiency and
adequacy of department and agency procedures; and
WHEREAS the experience of the several groups which
have examined Federal administrative procedures in recent
years demonstrates that substantial progress in improving
department and agency procedures can result from coopera-
tive effort by the departments and agencies, working
together with members of the practicing bar and other
interested persons:
NOW, THEREFORE, by virtue of the authority vested
in me as President of the United States, it is ordered as
follows:
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Section 1. Establishment of the Conference. There
is hereby established a conference to be known as the
Administrative Conference of the United States, which
shall consist of a Council of eleven members named by the
President, one of whom he shall designate to be Chairman
of the Conference, and a general membership from Federal
executive departments and administrative agencies, the
practicing bar, and other persons specially informed by
knowledge and experience with respect to Federal adminis-
trative procedures.
Section 2. Purpose. The purpose of the Conference
shall be to assist the President, the Congress and the
administrative agencies and executive departments in im-
proving existing administrative procedures. To this end
the Conference -shall conduct studies of the efficiency,
adequacy and fairness of procedures by which Federal
executive departments and administrative agencies protect
the public interest and determine the rights, privileges
and obligations of private persons. The Conference shall
from time to time report to the President any conclusions
reached by its members based on such studies, together
with suggestions for appropriate measures to improve the
administrative process. The Conference shall make a
Final Report to the President no later than December 31,
1962, summarizing its activities, evaluating the need for
further studies of administrative procedures, and suggest-
ing appropriate means to be employed for this purpose in
the future.
Section 3. Membership. The composition of the
general membership of the Conference shall be determined
by the Council; provided that the total membership shall
be not less than fifty persons, and at least a majority
of the total membership shall be from Federal executive
departments and administrative agencies, so distributed
as to effect an appropriate representation among the
several departments and agencies. General members from
Government service shall be designated by the heads of
their respective departments and agencies. Other general
members shall be named by the Chairman with the approval
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3 -
of the Council from the practicing bar, scholars in the
fields of administrative law and government, and other
persons specially informed by knowledge and experience
with respect to Federal administrative procedures. Mem-
bers of the Conference who are not in Government service
shall participate in the activities of the Conference
solely as private individuals without official responsi-
bility on behalf of the Government of the United States.
Section 4. Staff. The Attorney General of the
United States is hereby authorized and directed to furnish
to the Conference research and staff assistance from the
Office of Administrative Procedure in the Department of
Justice, through the Director of that Office and the
Chairman of the Conference, and the Director of the Office
of Administrative Procedure shall act as Executive Secre-
tary of the Conference.
Section 5. Operation of the Conference. The Con-
ference shall have authority to adopt bylaws and regulations
not inconsistent with the provisions of this order for the
conduct of its functions. Every member of the Conference
will be expected to participate in all respects according
to his own views, and not necessarily as a representative
of any department or agency or other group from which he
may have been chosen.
Section 6. Committees. Committees of the Conference
shall be appointed by the Chairman, with the approval of
the Council. Committees shall have authority to designate
subcommittees from their own membership for the purposes of
conducting studies and making reports to the full commit-
tees.
Section 7. Functions of the Council. The Council
is hereby authorized to perform the following functions:
(a) To meet under the chairmanship and upon the call
of the Chairman of the Conference.
(b) To determine the composition of the general
membership of the Conference as provided in section 3 above.
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(c) To make appropriate arrangements with the Presi-
dent of the Senate and the Speaker of the House of Represent-
atives for participation in the activities of the Conference
by interested committees of the Congress. Representatives of
the Congress shall have the privilege of the floor of the
Conference.
(d) To determine the time and place of plenary
sessions of the Conference.
(e) To propose bylaws and regulations, including
rules of procedure and Committee organization, for adoption
by the Conference.
(f) To propose to the Conference the matters con-
cerning which the Conference and its committees shall con-
duct investigations and studies.
(g) To receive and consider reports of committees
of the Conference and proposals adopted by the Conference,
and to transmit them to the President together with the
views of the Council concerning such matters.
Section 8. Cooperation of Federal agencies. All
executive departments and administrative agencies of the
Federal Government are authorized and directed to coop-
erate with the Conference and to furnish such information
and assistance not inconsistent with law as may reasonably
be required in the performance of its functions.
Section 9. Expenditures of the Conference. Each
executive department and administrative agency which Ls
represented by one or more members of the Conference named
or designated as provided in section 3 of this order shall,
as may be necessary for the purpose of effectuating the
provisions of this order, furnish assistance to the Confer-
ence in accordance with section 214 of the act of May 3,
1945, 59 Stat. 134 (31 U.S.C. ? 691). Such assistance may
include detailing employees to the Conference to perform
such functions consistent with the purposes of this order
as the Conference may assign to them.
THE WHITE HOUSE
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IDENTIFICATION OF COUNCIL MEMBERS
Judge E. Barrett Prettyman (Chairman), Senior Judge of
the United States Court of Appeals for the District
of Columbia Circuit.
Max D. Paglin (Vice Chairman) General Counsel, Federal
Communications Commission, formerly Assistant
General Counsel and staff member.
Manuel F. Cohen, Member of the Securities and Exchange
Commission, formerly Director, Division of Corpora-
tion Finance, Securities and Exchange Commission.
Walter Gellhorn, Professor of Law, Columbia University,
1933 to date; Director, Attorney General's Com-
mittee on Administrative Procedure, 1939-1941;
Office of the Solicitor General, United States
Department of Justice, 1932-1933; author of various
books on administrative law.
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Joseph P. Healey, Vice-President-General Counsel of
Boston-Edison Company; former Commissioner of
Corporations and Taxation for the Commonwealth
of Massachusetts; former law partner in law firm
of Hemenway and Barnes, Boston, Massachusetts;
Professor of Corporate Law at Boston College Law
School since 1947.
Everett Hutchinson, Member and former Chairman of the
Interstate Commerce Commission.
James M. Landis, Partner in the firm of Landis, Brenner,
Feldman and Reilly; formerly Special Assistant to
the President; Chairman of the Civil Aeronautics
Board; Chairman of the Securities and Exchange
Commission; Dean of the Harvard Law School.
Jonn D. Lane, Member of the firm of Hedrick and Lane,
Washington, D. C.; formerly Administrative Assistant
to Senator Brien McMahon of Connecticut.
Earl Latham, Eastman Professor of Political Science,
Amherst College, Amherst, Massachusetts.
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Carl McGowan, Member of the firm Ross, McGowan and
O'Keefe, Chicago, Illinois; General Counsel,
Chicago & Northwestern Railroad; formerly Profes-
sor of Law, Northwestern University Law School;
formerly counsel to the Governor of Illinois.
Nathaniel L. Nathanson, Professor of Law, Northwestern
University; consultant to the Justice Department
with respect to administrative procedures, 1961;
Office of Price Administration, Associate General
Counsel, 1942-1945; Securities and Exchange Com-
mission, 1935-1936; Law Clerk to Justice Louis D.
Brandeis, 1934-1935; author of casebook on admin-
istrative law.
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GENERAL MEMBERSHIP
OF THE
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
Robert E. Adams 1/ of the
Department of Commerce
Karl E. Bakke of the
United States Tariff Commission
Donald C. Beelar of the firm Kirkland, Ellis, Hodson,
Chaffetz & Masters, Washington, D. C.
James H. Benney of the firm Orrick, Dahlquist,
Harrington & Sutcliffe, San Francisco, California
Marver H. Bernstein of
Princeton University
Carman G. Blough of
Harrisonburg, Virginia
J. D. Bond of the
Atomic Energy Commission
Reva Beck Bosone of the
Post Office Department
Cyril F. Brickfield2/ of the
Veterans Administration
Kent H. Brown of the
State of New York Public Service Commission
Charles W. Bucy of the
Department of Agriculture
Clark Byse of the
Law School of Harvard University
John T. Chadwell of the firm Snyder, Chadwell, Keck,
Kayser & Ruggles, Chicago, Illinois
G. Howland Chase of the Board of Governors
of the Federal Reserve System
Cyrus J. Colter of the
Illinois Commerce Commission
John F. Cushman of the
Federal Communications Commission
1/ Succeeded Paul A. Johnston of the Department of Commerce.
2/ Succeeded William J. Driver of the Veterans Administration.
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Richard M. Davis of the firm
Lewis, Grant & Davis, Denver, Colorado
George S. Dixon of the firm
Matheson, Dixon & Bieneman, Detroit, Michigan
Charles Donahue of the
Department of Labor
Thomas J. Donegan of the
Subversive Activities Control Board
Bernard Dunau of the firm
Jaffee & Dunau, Washington, D. C.
David C. Eberhart of the
General Services Administration
Irvin Fane of the firm
Spencer, Fane, Britt & Browne, Kansas City, Missouri
Joseph A. Fanelli of the firm
Fanelli & Spingarn, Washington, D. C.
Roland J. Faricy3/ of the firm
Faricy, Moore, Costello & Hart, St. Paul, Minnesota
William Feldesman of the
National Labor Relations Board
David Ferber of the
Securities and Exchange Commission
Edward W. Fisher of the
Department of the Interior
Thomas J. Flavin4/ of the
Department of Agriculture
Abe Fortas of the firm
Arnold, Fortas & Porter, Washington, D. C.
Ralph Fuchs of the
University of Indiana Law School
Myles F. Gibbons of the
Railroad Retirement Board
Robert E. Giles of the
Department of Commerce
Whitney Gillilland of the
Civil Aeronautics Board
Robert W. Ginnane of the
Interstate Commerce Commission
3/ Deceased.
4/ Succeeded Neil Brooks of the Department of Agriculture.
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3
Nathaniel H. Goodrich5/ of the
Federal Aviation Agency
Frank C. Hale6/ of the
Federal Trade Commission
Lawrence E. Hartwig of the
Renegotiation Board
James McI. Henderson of the
Federal Trade Commission
Harold W. Horowitz of the
Department of Health, Education, and Welfare
Thomas T. F. Huang7/ of the
Department of State
Leo A. Huard of the
University of Santa Clara College of Law
Rosel H. Hyde of the
Federal Communications Commission
John A. Johnson of the
National Aeronautics and Space Administration
T. C. Kammholz of the firm
Vedder, Price, Kaufman & Kammholz, Chicago, Illinois
R. Keith Kane of the firm
Cadwalader, Wickersham & Taft, New York, N. Y.
Sidney G. Ki.ngsley8/ of the
Atomic Energy Commission
Earl Kintner of the firm
Arent, Fox, Kintner, Plotkin & Kahn, Washington, D.C.
John W. Kopecky of the
Housing and Home Finance Agency
William C. Koplovi.tz of the firm
Dempsey & Koplovitz, Washington, D. C.
Sol Lindenbau.n of the
Department of Justice
Karl D. Loos of the firm
Pope, Ballard & Loos, Washington, D. C.
Dominick L. Manoli of the
National Labor Relations Board
5/ Succeeded Daggett H. Howard of the Federal Aviation
Agency.
6/ Succeeded Philip R. Layton of the Federal Trade
Commission.
7/ Succeeded William L. Griffin of the Department of State.
8/ Succeeded John S. Graham of the Atomic Energy Commission.
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John C. Mason of the
Federal Power Commission
Joseph E. McElvain of the
Department of Health, Education, and Welfare
Thomas G. Meeker of the firm Schnader, Harrison,
Segal & Lewis, Philadelphia, Pennsylvania
Lawrence V. Meloy of the
Civil Service Commission
James L. Pimper of the
Federal Maritime Commission
John B. Prizer of the
Pennsylvania Railroad Company, Philadelphia, Penna.
Edwin F. Rains9/ of the
Department of the Treasury
Sidney Rawitz of the
Department of Justice
Emmette S. Redford of the
University of Texas
Hubert A. Schneider of
Pan American World Airways, New York, N. Y.
David Searls of the firm
Vinson, Elkins, Weems & Searls, Houston, Texas
Harold Seidman of the
Bureau of the Budget
Ashley Sellers of the firm
Cummings & Sellers, Washington, D. C.
Edward F. Sloane of the
Federal Home Loan Bank Board
Fred B. SmithlO/ of the
Department of the Treasury
Bertram E. Stillwell of the
Interstate Commeie Commission
Fredric T. Suss of the
Small Business Administration
Joseph C. Swidlerll/ of the
Federal Power Commission
Earl J. Thomas of the
Department of the Interior
9/ Succeeded Robert H. Knight of the Department
of the Treasury.
10/ Succeeded John K. Carlock of the Department
of the Treasury
11/ Succeeded Jerome K. Kuykendall of the Federal
Power Commission.
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Cyrus R. Vance,
Secretary of the Army
John H. Wanner of the
Civil Aeronautics Board
Howard C. Westwood of the firm
Covington & Burling, Washington, D. C.
Edmund H. Worthy of the
Securities and Exchange Commission
Joseph Zwerdling of the
Federal Power Commission
CONGRESSIONAL REPRESENTATIVES
Everett McKinley Dirksen
Senator from Illinois
Philip A. Hart
Senator from
Edmund S. Muskie
Senator from
John B. Bennett
Michigan
Representative
Oren Harris
Representative
Walter Rogers
Representative
Michigan
ALTERNATE CONGRESSIONAL REPRESENTATIVES
Thomas B. Collins of the
Senate Committee on the Judiciary
Franklin B. Dryden of the
Senate Committee on Appropriations
Cornelius Kennedy of the Senate Subcommittee
on Administrative Practice and Procedure
Kurt Borchardt of the House Committee
on Interstate and Foreign Commerce
Charles P. Howze of the
House Special Subcommittee on Regulatory Agencies
Andrew Stevenson of the
House Committee on Interstate and Foreign Commerce
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CONSULTANTS
Robert M. Benjamin of the firm Parker, Duryee,
Benjamin, Zunino and Malone, New York, N. Y.
Kenneth Culp Davis of the
University of Chicago Law School
J. Forrester Davison of the George Washington
University School of Law
Roger S. Foster of Westinghouse Air Brake
Company, Pittsburgh, Penna.
Louis L. Jaffe of the Law School of Harvard
University
John D. Millett, President of Miami University,
Oxford, Ohio
J. Lee Rankin of New York, N. Y.
Robert L. Stern of the firm Mayer, Friedlich, Spiess,
Tierney, Brown and Platt, Chicago, Ill.
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APPENDIX IV
TEXT OF THE RECOMMENDATIONS OF THE CONFERENCE
CONTENTS
Recommendation No. Subject of Recommendation
1 X Statistics on administrative proceed-
2
3 <
4 /
6
ings (1961)
Office of Administrative Procedure
Jurisdiction for review orders of the
Interstate Commerce Commission
Procedures for review of orders of
the Interstate Commerce Commission
Production of the record and briefs
by means more economical than
printing, and designation of record
after the filing of briefs
Unification of the Armed Services
Board of Contract Appeals, and
elimination of subsidiary boards
7 Availability of rules and decisions
of boards of contract appeals
Re-examination by the agencies of
their procedural rules, and crea-
tion of machinery within the
agencies for continuous observa-
tion of procedures
9 Delegation of final decisional
authority
Comprehensibility of Federal Register
documents
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11 X Increased distribution of the
United States Government
Organization Manual
12 Procedures of boards of contract
appeals
13 Subpena practices
14 Licensing of truck operations by
the Interstate Commerce Commission
15 Right to counsel of persons com-
pelled to appear
16 Improper ex parte representations
17 x Statistics on administrative
proceedings (1962)
Judicial enforcement of orders of
the National Labor Relations
Board
19 Ratemaking procedures
20 k
21 x
23 1
Consolidation of route applications
before the Civil Aeronautics
Board
Civil Aeronautics Board procedures
for the consideration of domestic
route applications
Federal Communications Commission
procedures for the consideration
of mutually exclusive applica-
tions for broadcast facilities
in the same community
Federal Communications Commission
procedures for broadcast licens-
ing
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Right of witnesses to transcript
of their testimony and copies
of documents submitted by them
25 Right to counsel of persons who
appear voluntarily
26 Service upon attorneys
27 Continuing statistical study
28
Advanced training of agency pro-
fessional personnel; examiners;
legal career service
29 Debarment of contractors
30 Discovery in administrative pro-
ceedings
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APPENDIX IV
TEXT OF THE RECOMMENDATIONS OF THE CONFERENCE
RECOMMENDATION NO. 1
IT IS RECOMMENDED THAT:
The Conference, acting pursuant to Section 8 of
Executive Order 10934, request the Executive departments
and administrative agencies which conduct administrative
proceedings for the determination of private rights,
privileges, and obligations to furnish to the Conference
(addressing the Chairman of the Committee on Statistics
and Reports) the information requested in the form of
report approved this day by the Conference, a copy of
which report is hereto attached.
RECOMMENDATION NO. 2
WHEREAS a continuing need exists for adequate
performance of the duties now assigned to the Office of
Administrative Procedure by its charter, which are as
follows:
(a) To carry on continuous studies of the ad-
equacy of the procedures by which Federal
departments and agencies determine the
rights, duties, and privileges of persons;
(b) Initiate cooperative effort among the
departments and agencies and their respective
bars to develop and adopt so far as practic-
able uniform rules of practice and procedure;
(c) Collect and publish facts and statistics
concerning the procedures of the departments
and agencies; and
(d) Assist departments and agencies in the form-
ulation and improvement of their administrative
procedures.
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Recommendation No. 2 (Continued)
To that end the Conference recommends as follows:
IT IS RECOMMENDED THAT:
The Office of Administrative Procedure be more
adequately staffed and budgeted than at present so that it
can discharge the above functions until further recommend-
ations of the Conference.
RECOMMENDATION NO. 3
(1) review of Interstate Commerce Commission orders
should be upon appeals to the United States Courts of Appeals
in all cases where at present a special three-judge court is
used; District Courts should be relieved of their juris-
diction under 28 U.S.C. ? 1336, and the Courts of Appeals
should have exclusive jurisdiction to review these orders of
the Commission;
(2) final review of orders of the Interstate Commerce
Commission by the Supreme Court of the United States should
be only by petition for a writ of certiorari;
(3) review of Interstate Commerce Commission orders
should be permitted in any judicial circuit wherein is the
residence or principal office of the party or any of the
parties filing the request for review.
RECOMMENDATION NO. 4
Procedures for judicial review of orders of the
Interstate Commerce Commission by Courts of Appeals should
incorporate the following features:
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Recommendation No. 4 (Continued)
(1) A limit of 60 days should be imposed as the time
within which a petition for review must be filed in any case
for which the present statutory provisions do not fix a
period for filing petitions for review, such 60-day period
to run from the date of entry of the order appealed from or
entry of an order denying reconsideration thereof where
petitions for reconsideration are allowed by the Commission's
rules, whichever is later.
(2) Appeals should be commenced by the filing of a
petition for review in the form of a notice of appeal.
(3) Anyone seeking review should be required to
serve notice of appeal upon all parties to the proceeding
before the Commission, the Department of Justice, and the
Commission.
(4) When several appeals are taken from the same
order of the Commission, the venue should be determined by
the first notice of appeal to be filed, and all subsequent
appeals should.be considered as taken to the same court,
consolidated therewith, and handled as one appeal.
(5) The Commission should provide the record of its
proceedings on appeal and should transmit the record to the
court. Until such time as procedures are developed where-
under the Commission may use mechanical facilities and
methods for the production of the record in its proceedings
in such form as to obviate printing or other reproduction
of the record for judicial review, and provision is made for
the designation of record after the filing of briefs, as
recommended by the Conference, the record on appeal should
consist of the entire record before the Commission, and
should be transmitted to the court within the time allowed
for the filing of briefs. The record should be returned to
the Commission upon final decision of the appeal.
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RECOMMENDATION NO. 5
IT IS RECOMMENDED THAT:
Rules of court governing judicial review of admin-
istrative action should be revised to permit:
(1) the use by departments and agencies of means
of producing the record in administrative proceedings, in
a form which will eliminate the need for any reproduction
thereof upon judicial review;
(2) the submission of briefs produced by processes
which provide legible copies and yet are more economical
than printing; and
(3) pending implementation of (1) above, the
designation of record after the filing of briefs.
RECOMMENDATION NO. 6
IT IS RECOMMENDED THAT:
The Armed Services Board of Contract Appeals be
constituted as a unitary board in the Defense establish-
ment, and that, to the extent practicable, subsidiary
boards which decide or render opinions upon disputes
concerning contracts be eliminated as soon as possible.
RECOMMENDATION NO. 7
Departments and agencies of the Federal Govern-
ment which have established internal appellate procedures
and entities (i.e., boards of contract appeals, boards of
review, etc.) which render decisions or opinions concern-
ing disputes under contracts of departments or agencies:
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Recommendation No. 7 (Continued)
(1) publish or make available for publication the
applicable rules concerning such procedures; and
(2) publish or make available for publication and
inspection by the public all final decisions or opinions,
past, current, and future, by the deciding or opinion-
rendering entities in such departments or agencies.
RECOMMENDATION NO. 8
WHEREAS several of the executive departments and
administrative agencies have recently undertaken to examine
their rules of procedure with a view to improvements in
efficiency, adequacy, and fairness:
These agencies are to be commended for this activity;
and that all executive departments and administrative agenc-
ies having functions requiring rules of procedure should, in
the public interest, inaugurate similar examinations of such
rules of procedure for these purposes; and, further, that
every executive department and administrative agency having
functions requiring rules of procedure should establish with-
in its organization a means, either by assignment of the duty
to an official or by the creation of an office for the pur-
pose, for continuous observation of its procedures and for
evaluating their effectiveness to the agency and to persons
having matters before the agency.
RECOMMENDATION NO. 9
In order to make more efficient use of the time and
energies of agency members and their staffs, to improve the
quality of decision without sacrificing procedural fairness,
and to help eliminate unnecessary delay in the administra-
tive process of deciding contested matters:
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Recommendation No. 9 (Continued)
1. Section 8 of the Administrative Procedure Act
should be amended to make it clear that:
a. Every agency which is under a statutory duty
to promulgate rules or adjudicate cases on the record
after a hearing and does not either itself preside at
the prescribed hearing or require the entire record
to be certified to it for initial decision -
(1) may require the party seeking adminis-
trative review of the initial decision
rendered by the officer who presided at
the hearing (or by any other officer
authorized by law to make it) to specify
the alleged errors in the initial decis-
ion and the portions of the record
supporting the allegations of error with
such particularity as the agency may
prescribe, and
(2) may confine its administrative review of
the initial decision to the specified
errors and portions of the record.
2. Section 8 of the Administrative Procedure Act
should be amended to make it clear that:
a. When a party to a proceeding seeks adminis-
trative review of an initial decision rendered by the
officer who presided at the hearing (or by any other
officer authorized by law to make it), the agency may
accord administrative finality to the initial decision
by denying the petition for its review, or by summarily
affirming the initial decision, unless the party seek-
ing review makes a reasonable showing (in the manner
prescribed by statute or agency rule, such as a
petition for review or a bill of exceptions), that
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Recommendation No. 9 (Continued)
(1) a prejudicial procedural error was
committed in the conduct of the
proceeding; or
(2) the initial decision embodies
(a) a finding or conclusion of
material fact which is clearly
erroneous; or
(b) a legal conclusion which is
erroneous; or
(c) an exercise of discretion or
decision of law or policy which
is important and which the
agency should review.
Nothing in this paragraph shall be construed to limit
the powers of delegation of any agency under any other statute
or reorganization plan.
b. The agency's decision to accord or not to
accord administrative finality to an initial decision
in accordance with recommendation 2a above shall not
be subject to judicial review. If, however, the initial
decision becomes the decision of the agency because the
petition for review of the initial decision is denied
or because the initial decision is affirmed summarily,
such agency decision, of course, will be subject to
judicial review in accordance with the standards for
judicial review of agency decisions established by law.
RECOMMENDATION NO. 10
1. The need for improved comprehensibility of
Federal Register documents be brought to the attention of
the heads of all executive departments and administrative
agencies.
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Recommendation No. 10 (Continued)
2. The head of each department and agency be
requested to take the necessary steps to assure that his
organization systematically uses and contributes to:
(a) the "Federal Register Handbook for
Executive Agencies,"
(b) the training program entitled "Drafting
Good Federal Register Documents," and.
(c) the central collection of information
and the facilities- available through the
Office of the Federal Register.
RECOMMENDATION NO. 11
IT IS RECOMMENDED THAT:
1. The Superintendent of Documents be formally
notified that the Administrative Conference endorses the
public advertisement and sale of the United States
Government Organization Manual at established outlets in
the field offices of the Department of Commerce.
2. These sales be promoted by encouraging local
bar associations to publicize the availability of the
Manual at these outlets.
3. The Post Office Department be requested to
display in local post offices the posters supplied by the
Superintendent of Documents advertizing the United States
Government Organization Manual.
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RECOMMENDATION NO. 12
Departments and agencies of the Federal Government
engaged in procurement, which have established internal
appellate procedures and entities (i.e., boards of contract
appeals, boards of review, etc.) which render decisions or
opinions concerning disputes under contracts of departments
or agencies, afford contractors, in cases where a-substantial
issue of fact is material to the decision or opinion, the
opportunity to know and contest in the appellate proceedings
the evidence which supports.the position of the contracting
officer of the department or agency, and establish and pub-
lish appropriate procedures to this end where they are not
presently provided.
RECOMMENDATION NO. 13
Departments and administrative agencies of the
Federal Government which are authorized by law to use the
subpena power be encouraged to conform their subpena prac-
tices to the following principles where necessary changes
can be made without statutory enactment; and where stat-
utory change is necessary to this end, that appropriate
legislation embodying these principles be suggested to the
Congress for enactment.
1. Power to Issue Subpenas
(1). Officers presiding at adjudicatory
hearings should have authority to issue subpenas requiring
the attendance of witnesses or the production of evidence,
whether or not the proceedings are governed by sections 7
and 8 of the Administrative Procedure Act.
(2) In any investigatory proceeding in which
an agency is authorized by law to issue subpenas, the agency,
any member of the agency, or any officer designated by it
should have authority to issue subpenas requiring the attend-
ance of witnesses or the production of evidence.
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Recommendation No. 13 (Continued)
2. Geographical Scope
Agency authority to require the attendance of
witnesses and the production of evidence at any designated
place of hearing should extend throughout the United States
or any territory or possession thereof.
3. Issuance to Parties; Quashing
Administrative subpenas for the attendance of
witnesses or the production of evidence should be issued
upon the request of any party in an adjudicatory proceeding.
The issuing authority should have authority to revoke or
modify a subpena so issued, upon application made promptly
by or on behalf of any person to whom the subpena is directed.
Witnesses summoned before an agency should be
tendered or paid by the person or agency at whose instance
they appear the same fees and mileage that are paid to
witnesses in the courts of the United States.
5. Enforcement
In case of contumacy or refusal to obey a sub-
pena issued to any person, any district court of the United
States within the jurisdiction of which such hearing, inves-
tigation, or proceeding is carried on, or in which the per-
son to whom the subpena is addressed is found or resides or
transacts business, should have authority to issue an order
requiring such person to appear before the agency or member
or officer designated by the agency, and give testimony, or
produce evidence, or both, touching the matter under inves-
tigation or in question. Any failure to obey such order of
the court should be subject to punishment by the court as
a contempt thereof.
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RECOMMENDATION NO. 14
IT IS RECOMMENDED THAT:
There be transmitted to the Interstate Commerce
Commission for its further consideration the following
proposals relating to licensing of truck operations:
1. That summaries of truck applications be pub-
lished in the Federal Register as soon as possible after
initial filing; and that assignment for processing under
oral hearing or no-oral-hearing procedures be postponed
until protests are received and evaluated.
2. That direct evidence of applicants and protest-
ants concerning their own operations, services, and pro-
posals be submitted in affidavit form at the time of filing
of applications and protests respectively; but that dis-
closure of the identity of supporting shippers be postponed
until the hearing on the merits.
3. That procedures be adopted to assure that
applications are not filed without such shipper support as
may be necessary, perhaps employing one of the following
alternatives:
(a) Requiring that all applications be accom-
panied by either (1) a statement or affidavit of
the applicant's attorney or representative stating
that he has in his possession correspondence or
statements from shippers promising necessary support
of the application, or that shipper support is
unnecessary and no supporting shippers will be called,
or that, for stated reasons, the documents cannot be
obtained; or (2) a similar affidavit from any applic-
ant proceeding without an attorney or representative,
with supporting documents transmitted for confident-
ial retention by the Commission; or
(b) Requiring that all applications be accom-
panied by evidence of shipper support in affidavit
form, for confidential retention by the Commission
until the oral hearing on the application or until
the application is acted upon without oral hearing.
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Recommendation No. 14 (Continued)
4. That the shipper statements said to be possessed
by the attorney or representative, pursuant to recommendation
3(a), be required to be produced if the application is with-
drawn after assignment for hearing or if no supporting
shippers are called to testify at the hearing; and that any
failure to produce such statements result in disciplinary
action against the attorney or representative.
5. That prospective protestants be permitted, with
the consent of the applicants, to file notices of pending
negotiations in lieu of protests.
6. That responsibility be conferred upon a unit
within the Commission to supervise more closely the process-
ing of truck applications. Such a unit might be a Control
Committee, consisting of personal assistants of the three
Commissioners of Division One and the Director of the Bureau
of Operating Rights, or it might be the Director of the
Bureau and his aides. In either case, the responsibilities
of the unit should include:
(a) Assuring compliance with rules pertaining
to applications and protests;
(b) Rejecting inadequate protests and assigning
resulting unprotested applications for decis-
ion without oral hearing;
c) Identifying and devising special handling
for troublesome, related, or important cases,
and making initial determinations on con-
solidation;
(d) Channeling appeals from examiner decisions
either to employee boards or Division One,
and inviting industry participation where
appropriate.
7. That examiners be empowered to render decisions
on the merits in advance of the conclusion of the parties'
presentation and issue definitive orders after pre-hearing
conferences.
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Recommendation No. 14 (Continued)
8. That interlocutory review of examiner rulings be
limited to matters certified for review either by the exam-
iner or the unit controlling the processing of truck applic-
ations (the Control Committee or Bureau Director).
9. That a decision upon review of an initial decision
should state either that (1) the findings in the initial decis-
ion are adopted in their entirety, or (2) are adopted to the
extent they are specifically identified by the review decision,
or (3) new and specific findings are substituted for those em-
bodied in the initial decision. A review decision should not
state in general terms that the findings below are adopted
except to the extent they are inconsistent with the review
decision.
RECOMMENDATION NO. 15
1. Each agency subject to the Administrative Proced-
ure Act re-examine its rules and practice with regard to the
provision in section 6(a) of the Act that "Any person com-
pelled to appear in person before any agency or represent-
ative thereof shall be accorded the right to be accompanied,
represented, and advised by counsel," to ensure conformity
with the following standards as a minimum in all agency
actions and proceedings, including both public and non-
public investigations.
a. The right to be "accompanied" by counsel
means the right of any person compelled to appear
before any agency or agency representative to have
counsel present with him during any proceeding or
investigation.
b. The right to be "advised" by counsel means
that any person compelled to appear in person shall
be entitled to the advice in confidence of counsel
before, during, and after the conclusion of any
agency proceeding or investigation for which his
presence is compelled.
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Recommendation No. 15 (Continued)
c. The right to be "represented" by counsel
means as a minimum that counsel for any person
compelled to appear in person shall be permitted
to make objections on the record and to argue
briefly the basis for such objections in connec-
tion with any examination of his client.
d. In addition, each agency is urged to re-
examine its rules and practice and to effect
appropriate changes therein to the extent that
it determines that it can properly permit per-
sons compelled to appear in person in any agency
proceeding or investigation to be examined fur-
ther for the record by their own counsel follow-
ing other questioning.
2. The right to counsel be interpreted with a view
to preserving the highest concept of administrative fair-
ness and as generously as reasonable administrative effi-
ciency permits. Agencies should recognize that the right
to counsel, including, to the extent appropriate, oppor-
tunity for cross-examination and production of limited re-
buttal testimony or documentary evidence, is particularly
important to any person involved in a public investigation
where implications of wrongdoing by that person are made a
part of the public record.
RECOMMENDATION NO. 16
WHEREAS the Administrative Conference deems it essen-
tial that the administrative process should be protected
from improper influences and that the agencies should take
certain action to help achieve these objectives,
Each agency promulgate a code of behavior governing
ex parte contacts between persons outside and persons inside
the agency which should be based upon the principles s-et
forth below.
The Conference recognizes that it may not be prac-
tical for all agencies to adopt a uniform code embodying
its recommendations. Some agencies may find it advisable
to add A.pprbbQd Fbr R e12d067U1a'3 b tF- 64Bd0X 15# b622-0
while others may, find it inadvisable to accept all tie
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Recommendation No. 16 (Continued)
recommendations in connection with particular kinds of pro-
ceedings conducted by them. The Conference expects that
each agency will seek to effectuate the general recommenda-
tions in light of the specific considerations of fairness
and administrative necessity applicable to each of the pro-
ceedings conducted by it.
1. The agency code should prohibit any person who
is a party to, or an agent of a party to, or who inter-
cedes in an on-the-record proceeding in any agency, from
making an unauthorized ex parte communication about the
proceeding to any agency member, hearing officer, or agency
employee participating in the decision in the proceeding.
a. The term "on the record proceeding" should
be defined as any proceeding required by statute or con-
stitution or by the agency in a published rule or in an
order in the particular case to be decided solely on the
basis of an agency hearing, and any other proceeding which
the agency designates by published rule or by order in the
particular case as subject to these prohibitions.
By published rule or order in the particular case,
each agency should specify which of its proceedings will
be governed by the prohibitions against ex parte communi-
cations.
b. The prohibitions should apply from the time
the agency notices an on-the-record proceeding for hearing
or from such earlier time as the agency may fix by pub-
lished rule, or order in the particular case.
c. Except as provided in d. below, the "ex
parte communications" prohibited should include:
(1) Any written communication of any kind
about an on-the-record proceeding, if copies thereof are
not served by the communicator upon all the parties to the
proceeding in accordance with agency rules. Each agency
should promulgate rules specifying the manner and time of
service.
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Recommendation No. 16 (Continued)
(2) Any oral communication of any kind about
an on-the-record proceeding (i) if advance notice that it
will be made is not given by the communicator to all the
parties to the proceeding, or (ii) if its contents are not
disclosed by the communicator to all the parties at the
time of its presentation or promptly thereafter, in accord-
ance with agency rules. Each agency should promulgate
rules specifying the manner and time of disclosure.
d. The following classes of "ex parte communica-
tions" should not be prohibited.
(1) Any oral or written communication which
relates solely to matters which the hearing officer, agency
member, or agency employee is authorized by law to dispose
of on an ex parte basis.
(2) Any oral or written request for informa-
tion solely with respect to the status of a proceeding.
(3) Any oral or written communication which
all the parties to the proceeding agree, or which the
agency or hearing officer formally rules, may be made on an
ex parte basis.
(4) Any oral or written communication of
facts or contentions which have general significance for
an industry subject to regulation if the communicator can-
not reasonably be expected to know that the facts or con-
tentions are material to a substantive or procedural issue
in a pending on-the-record proceeding in which he is in-
terested.
(5) Any oral or written communication made
pursuant to an agency practice which is generally known
and under which the content of the communication (by way
of transcript or otherwise) is promptly available to any
person who is a party to a pending on-the-record proceed-
ing which involves any substantive or procedural issue to
which the communication may be relevant or who can other-
wise show an interest in the communication.
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Recommendation No. 16 (Continued)
e. The "person who is a party" to whom the pro-
hibitions apply should include any individual outside the
agency conducting the proceeding (whether in public or
private life), partnership, corporation, association, or
other agency, who is named or admitted as a party or who
seeks admission as a party.
f. The "person who intercedes in" the proceed-
ing, to whom the prohibitions apply, should include any
individual outside the agency conducting the proceeding
(whether in public or private life), partnership, corpo-
ration, association, or other agency, other than a party,
or an agent of a party, who volunteers a communication,
which he may be expected to know may advance or adversely
affect the interests of a particular party to the proceed-
ing, whether or not he acts with the knowledge or consent
of any party or any party's agent.
g. The "agency employee participating in the
decision" should include all employees of the agency who
themselves make or recommend decisions or who are specif-
ically designated by the agency to assist agency members,
hearing officers, or other employees in making or recom-
mending decisions.
Each agency should identify the employees,
or classes of employees, who will so participate in the
decision in a rule or order published at or before the
time when the prohibitions against unauthorized ex parte
communications begin to apply to a particular proceeding
or class of proceedings or with respect to a particular
employee or class of employees.
2. The agency code should prohibit any agency mem-
ber, hearing officer, or agency employee participating in
the decision in an on-the-record proceeding in any agency
from (a) requesting or entertaining any unauthorized ex
parte communication; and (b) making an unauthorized ex
parte communication about the proceeding to any party to
the proceeding, any agent of any party, or any other per-
son who he has reason to know may transmit the communica-
tion to a party or a party's agent.
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Recommendation No. 16 (Continued)
3. The agency code should prohibit any person from
soliciting any other person to make an ex parte communica-
tion which the solicitor has reason to know is unauthor-
ized.
4. The agency code should require an agency member,
hearing officer, or employee participating in the decision,
who receives a written communication which he knows is un-
authorized, or which he concludes should, in fairness, be
brought to the attention of all parties to the proceeding,
to transmit the communication promptly to the Secretary of
the agency, together with a written statement of the cir-
cumstances under which it was made, if they are not appar-
ent from the communication itself. The Secretary should
be required promptly to place the communication and the
statement in the public file of the agency, to send copies
of the communication to all parties to the proceeding with
respect to which it was made, and to notify the communica-
tor of the agency code and any other applicable rules or
principles of practice.
If the communications are from persons other than
parties to the proceeding or their agents and the recipi-
ent determines that (a) the communications are either so
voluminous or of such borderline relevance to the issues
in the proceeding, or (b) the parties to the proceeding
are so numerous, that it would be too burdensome to send
copies of the communications to all the parties, the
Secretary may, instead, notify the parties that the com-
munications have been received and placed in the public
file where they are available for examination by the
parties.
5. The agency code should require an agency member,
hearing officer, or employee participating in the decision,
who receives an oral communication which he knows, at the
time it is received, is unauthorized, or which he concludes
should, in fairness, be brought to the attention of all
parties to the proceeding, to put the substance of the
communication in writing and transmit the writing promptly
to the Secretary of the agency, together with a written
statement of the circumstances under which it was made.
The Secretary should be required promptly to place the
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Recommendation No. 16 (Continued)
writing and the statement in the public file of the agency,
to send copies of the writing to all parties to the proceed-
ing with respect to which it was made, and to notify the
communicator of the agency code and any other applicable
rules or principles of practice.
If the communications are from persons other than
parties to the proceeding or their agents and the recipi-
ent determines that (a) the communications are either so
voluminous or of such borderline relevance to the issues
in the proceeding, or (b) the parties to the proceeding
are so numerous, that it would be too burdensome to send
copies of the writings containing the substance of the
communications to all the parties, the Secretary may, instead,
notify the parties that the communications have been received
and writings containing their substance placed in the public
file where they are available for examination by the parties.
6. The agency code should permit all parties to an
on-the-record proceeding to request an opportunity to
rebut, on the record, any facts or contentions contained
in an unauthorized ex parte communication or in any other
ex parte communication which the agency official receiving
the communication brought to the attention of all the par-
ties in accordance with Recommendation 4 or Recommendation
5 above. The code should provide that the agency will
grant such a request whenever it determines that the dic-
tates of fairness so require.
7. The agency code should provide that an agency
may censure, or suspend or revoke the privilege to prac-
tice before the agency, of any person who makes or solicits
the making of, an unauthorized ex parte communication.
8. To the extent permitted by applicable law, the
agency code should provide that any relief, benefit or
license sought by a party to a proceeding may be denied
if the party, or an agent of the party, makes, or solicits
the making of, an unauthorized ex parte communication.
9. The agency code should provide that an agency
may censure, suspend, or dismiss, or institute proceedings
for the suspension or dismissal, of any agency employee
who violates the prohibitions or requirements of the code.
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RECOMMENDATION NO. 17
IT IS RECOMMENDED THAT:
The Conference, acting pursuant to Section 8 of Ex-
ecutive Order 10934, request the executive departments and
administrative agencies which conduct administrative pro-
ceedings for the determination of private rights, privileges,
and obligations to furnish to the Conference (addressing the
Chairman of the Committee on Statistics and Reports) informa-
tion regarding such proceedings in fiscal year 1962. The
specific information required will be delineated in a revi-
sion of the report form approved under Recommendation No. 1
of the Plenary Session of December 5, 1961. The Conference
further directs that the Committee on Statistics and Reports
have prepared on the basis of the data received pursuant to
this request a second statistical report for distribution
to the members of the Conference and the reporting depart-
ments and agencies in the same manner as the first statis-
tical report based on the information received under Recom-
mendation No. 1 of the Plenary Session of December 5, 1961.
RECOMMENDATION NO. 18
IT IS RECOMMENDED THAT:
The National Labor Relations Act be amended to pro-
vide in substance that a petition for review of a Board
decision and order may be filed within 30 days in the ap-
propriate court of appeals by the party seeking review;
that if no such petition is filed, the Board shall forth-
with file a copy of the Board decision and order in an ap-
propriate circuit court of appeals of the United States and
that notice of such filing shall be served upon each re-
spondent; that 15 days shall then be given to each respond-
ent after notice to file objections to the order; and that
if no such review is requested within that time, the clerk
of the court shall then enter forthwith a decree enforcing
the order of the Board.
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RECOMMENDATION NO. 19
1. Unless special circumstances require a departure
in a particular case or classes of cases., the hearing to be
accorded in formal proceedings involving the validity or ap-
plication of rates should be presided over by a hearing ex
aminer qualified under Section 11 of the Administrative Pro-
cedure Act. The presiding examiner, armed with the usual
powers of a presiding officer, should supervise the build-
ing of an adequate record, and, unless special reasons in
the particular case require its omission, the presiding ex-
aminer should prepare and publish a decision.
2. In order to insure the presentation of all the
views and information essential for an accurate and respon-
sible decision, members of the agency's staff should parti-
cipate in rate cases of general importance. The role of the
staff should be to assure fullest practicable development of
evidence on the important matters of fact and to focus atten-
tion on sound principles of ratemaking with due regard to
precedents. It is important, however, that the staff be re-
quired, as are other parties, to produce its evidence and
state its position at an early point and be treated in all
other respects as a party.
3. Federal agencies exercising rate functions should
make every effort to reduce the scope and duration of rate
proceedings, and perhaps their number as well, by:
a. Requiring rate applicants to support each
rate filing of general importance with detailed data justi-
fying the rate.
b. Developing standardized data relating to
costs or other matters which would be admissible in rate
cases and constitute prima facie proof.
c. Attempting by rulemaking, general policy
statements, or the reasoning in opinions to formulate
reasonably specific standards or principles to be applied
in rate cases.
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Recommendation No. 19 - Continued
d. Encouraging negotiated settlement of rate cases
primarily through the early presentation of data, staff parti-
cipation, and the early refinement of issues by the presiding
examiner.
4. In order to reduce the time required for comple-
tion of the hearing and to improve the quality of the re-
sulting record, federal rate agencies should, to the extent
permitted by law:
a. Require the direct case of the party having the
burden of proof to be-submitted in writing with the rate fil-
ing or shortly after the case is designated for hearing.
b. Require the other parties, including the staff
and intervenors, to prepare and exchange their direct evidence
in written form substantially in advance of the date set for
hearing. Rebuttal evidence should also be prepared and. ex-
changed prior to the hearing, subject to the possibility of
limited supplemental rebuttal under special circumstances.
c. Empower and encourage the hearing examiner,
who should be assigned to the case at an early point, to
utilize conference procedures after full preparation by the
examiner, the parties and the staff, and in such conferences
(1) to make binding determinations of fact where the written
evidence submitted in advance or the parties' detailed state-
ments of position discloses that such facts are not seriously
disputed, and (2) to require full oral discussion by counsel
both to aid the examiner's and the parties' understanding of
the issues and to illuminate the extent and degree of conflict
in the evidence.
d. Seek, wherever possible, to limit the eviden-
tiary hearing, if one proves necessary, to cross-examination,
and require the hearing examiner to limit cross-examination
to those critical matters, not already disposed of through
prior procedural steps, which are of such character that a
trial-type hearing involving interrogation of witnesses would
make a useful contribution.
e. Eliminate the "hearing by interludes" which
has become customary in rate cases and replace it by a con-
tinuous hearing uninterrupted by lengthy recesses.
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Recommendation No. 19 - Continued
f. Encourage the hearing examiner, upon his own
motion or upon that of any party to the proceeding, to re-
quire oral argument either at the conclusion of the hearing
or at such later time as may be deemed most useful by the
hearing examiner.
5. Because of the complexity and size of major rate
proceedings, hearing examiners should have access to special-
ized advice and assistance of a disinterested nature in
analyzing the record, preparing schedules of data, develop-
ing ideas, and the like, subject to the following limiting
principles:
a. The exclusiveness of the record as the basis
of the decision, subject to proper official notice, must be
maintained.
b. Off-the-record communications between the pre-
siding examiner and members of the agency's staff who parti-
cipate in the hearing should be governed by the same princi-
ples made applicable to outside participants by Recommendation
No. 16, adopted by the Administrative Conference on June 29,
1962.
RECOMMENDATION NO. 20
IT IS RECOMMENDED THAT:
The Federal Aviation Act be amended to clarify the
authority of the Civil Aeronautics Board to consolidate,
or refuse to consolidate, applications for new or modified
domestic route authority for hearing and decision by the
Board. The Act should make clear:
1. That contemporaneous consideration of applica-
tions, when required, may be accomplished by assigning
various of the applications for separate evidentiary hear-
ings and then consolidating them for simultaneous decision
by the Board; provided that applicants excluded from a
particular hearing are allowed to participate therein as
intervenors, adduce evidence, and cross-examine adverse
witnesses.
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Recommendation No. 20 - Continued
2. That contemporaneous consideration of applications
is not required when the Board conducts a proceeding to con-
sider applications for a particular type of service within
a defined area or over a described route segment and ex-
cludes applications (or portions of applications) not pro-
posing service of the particular type within the area or
over the segment so described; provided that new authoriza-
tions granted in any such proceeding are subject to a manda-
tory stop at any point common to any application (or portion
of an application) excluded from the proceeding.
3. That the Board is not required to hold a pre-
liminary hearing on the issue of consolidating applications.
RECOMMENDATION NO. 21
There be transmitted to the Civil Aeronautics Board
for its consideration the following proposals relating to
Board proceedings concerned with new or modified domestic
route authority. The Board should:
1. Make more particularized findings reflecting the
reasons for instituting, or refusing to institute, a route
proceeding, with a view to developing factors of general ap-
plicability bearing on the Board's responsibility for plan-
ning development of the nation's air transportation network.
2. Empower hearing examiners to publish consolidation
orders within a limited time after their preparation, except
for such internal review as, in individual cases, may be re-
quested by the examiner or directed by the Board.
3. Provide assistance to the Special Counsel for
Routes so that internal review of consolidation orders may
be more expeditiously completed.
4. Adopt procedures, supplementary to its recent dele-
gation of decisional authority to hearing examiners, which
would provide for issuance of notices of review in major
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Recommendation No. 21 - Continued
route cases at the time of the Board's consolidation order
(or similar procedural step); such notices should make Board
review available, at the option of a disappointed party, in
all major route cases, while reserving the Board's dis-
cretionary authority to review, or decline to review, other
route matters.
5. Instruct the Opinion Writing Division, as a general
practice, to complete its review of exceptions, briefs and
record prior to oral argument, and to supply the Board, in
advance of that time, with responses to any questions posed
by the Board or its Members and an analysis of the matters
which the Board must decide.
6. Instruct Bureau Counsel to emphasize the selection
of major policy alternatives in pending cases, and the con-
siderations applicable thereto, rather than the development
of a single Bureau "position"; but this should not exclude
the expression by Bureau Counsel of a preference, on balance,
for one of the several alternatives considered.
7. Eliminate the routine identification of Board
opinions with individual Members, while (a) encouraging in-
dividual Member responsibility for supervising the prepara-
tion of individual opinions, (b) encouraging individual Mem-
bers to append supplementary personal comments to opinions
"by the Board," and (c) providing for personal identifica-
tion of any majority opinion to which a Board Member has
made a substantial individual contribution.
8. Provide for unrestricted consultation between per-
sonnel of the Bureau of Economic Regulation and Board deci-
sional personnel at all stages of a route proceeding, except
for (a) cases in which Bureau personnel are concerned with
establishing prior misconduct by'a party, and (b) Bureau
counsel of record in the route proceeding and his witnesses.
9. Invite members of the staff to attend Board ses-
sions concerned with route proceedings in which they are in-
volved, including (a) opinion writers and (b) personnel of
the Bureau of Economic Regulation not barred from consulta-
tion with decisional personnel.
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Recommendation No. 21 - Continued
10. Endeavor to establish some measure of contact be-
tween the decisional process at the Board level and the
Board's hearing examiners, as for example, by (a) encourag-
ing opinion writers to consult with hearing examiners, and
(b) informing hearing examiners, through the Chief Examiner,
of developments in Board policy relative to their functions.
The consultation recommended in proposals 8, 9 and 10,
above, shall not have the effect of enlarging the record or
of derogating from the principle that decisions must be based
on the record.
RECOMMENDATION NO. 22
The following steps should be taken respecting proceed-
ings before the Federal Communications Commission concerned
with mutually exclusive applications for broadcast facilities
in the same community.
First, the Federal Communications Act should be amended
to authorize the Commission to protect the integrity of any
comparative selection made on substantive grounds by ascer-
taining through suitable procedures that a proposed trans-
feree has qualities consistent with the policies reflected
in the initial selection.
Second, the Commission should re-examine the conduct
of its comparative hearings, under prevailing legislation,
with a view to (a) clarifying and improving the criteria em-
ployed in their disposition, and (b) to the extent that such
clarification and improvement indicates, limiting the scope
of such hearing to issues significantly relevant to effectua-
tion of regulatory policies.
Third, the Commission should consider providing by
general rule for:
(a) The establishment of a system of priorities un-
der which some applicants would be automatically preferred
over others.
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Recommendation No. 22 - Continued
(b) The selection of a licensee by some other method in
the event that application of present criteria or the recom-
mended system of priorities should result in a determination
that two or more applicants are equally qualified.
Any substantial and material issue of fact should, of
course, be the subject of an evidentiary hearing by the Com-
mission.
Fourth, to the extent that the Commission requires addi-
tional statutory authority to promulgate the general rule re-
ferred to in the preceding paragraph, the Communications Act
should be amended to confer such authority on the Commission.
RECOMMENDATION NO. 23
IT IS RECOMMENDED THAT:
There be transmitted to the Federal Communications Com-
mission for its consideration the following proposals relating
to Commission proceedings concerned with the grant or renewal
of broadcast licenses. The Commission should:
1. Discontinue the practice of setting applications
for evidentiary hearing where no substantial and material
question of fact is presented, particularly in the case of
proceedings involving issues as to the engineering character-
istics of broadcast facilities, service areas of such stations,
and extent of interference between such facilities.
2. Vest in its hearing examiners, to the maximum extent
practicable, original authority to decide interlocutory issues
relating to a case in hearing status (except petitions to al-
ter issues), and preclude interlocutory review of such rulings
except with the concurrence of either (i) the presiding exami-
ner, (ii) the Chief Examiner, or (iii) upon petition in the
discretion of the Commission.
3. Fully publicize and subject to some form of public
discussion its formulations of programming criteria, includ-
ing instructions to its own staff and any other criteria that
in fact are applied by FCC personnel.
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RECOMMENDATION NO. 24
IT IS RECOMMENDED THAT:
1. Each agency should afford to all persons who sub-
mit data or evidence, whether acting under agency compulsion
or in response to agency request or grant of permission, the
right to retain or, on payment of lawfully prescribed costs,
to procure a copy of any document submitted by him or a copy
of any transcript made of his evidence.
2. The above recommendation should be given statu-
tory form at an appropriate time.
RECOMMENDATION NO. 25
IT IS RECOMMENDED THAT:
1. Each agency having the power to compel testimony
should afford the same right to counsel to persons who ap-
pear by request or permission of the agency as to those who
are compelled to appear.
2. The above recommendation should be given statu-
tory form at an appropriate time.
RECOMMENDATION NO. 26
IT IS RECOMMENDED THAT:
1. In any agency proceeding in which a person is
represented by an attorney whose appearance is recognized
by the agency with respect to such proceeding, any notice
or other written communication required or permitted to be
furnished to the client should be mailed to or otherwise
served upon or furnished to such attorney (or one of such
attorneys if the client is represented by more than one at-
torney) in such manner as the agency may provide regardless
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Recommendation No. 26 - Continued
of whether such communication is furnished directly to the
client. Whenever such a communication is mailed to a client,
there should be a concurrent mailing to the attorney. When
personal service is made on the client, a reasonable delay
in furnishing the communication to the attorney is permissible.
2. In any agency proceeding in which a person is per-
mitted by agency rule to be represented by an attorney-in-
fact, the agency should comply as far as practicable with the
notice provisions in part 1 above.
3. To the extent necessary, each agency should imple-
ment the foregoing with appropriate rules defining the pro-
ceedings to which it applies and the method by which repre-
sentation is recognized.
RECOMMENDATION NO. 27
The Administrative Conference has developed improved
forms of reports for obtaining meaningful data from executive
departments and administrative agencies which conduct adminis-
trative proceedings for determination of private rights, privi-
leges, and obligations. Pursuant to section 8 of Executive
Order 10934, Recommendation No. 1 of the Plenary Session of
December 5, 1961, and Recommendation No. 17 of the Plenary
Session of June 29, 1962, the Conference has obtained reports
from such departments and agencies relating to their activi-
ties in connection with this type of administrative proceed-
ing for the fiscal years 1961 and 1962. The data so obtained
have been processed and made available in the form of meaning-
ful statistics to the departments, agencies, and others con-
cerned with the improvement of administrative procedures
and the solution of problems relating to undue length of rec-
ord and protraction of proceedings. Accordingly,
1. The study and formulation of reports for gathering
data from departments and agencies, with respect to adminis-
trative proceedings which are subject to sections 7 and 8 of
the Administrative Procedure Act or which are conducted under
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Recommendation No. 27 - Continued
comparable procedures involving problems of undue length of
record or protraction of proceedings, and the processing and
making available of meaningful statistics in aid of formu-
lating informed judgments as to improvement of procedures
and solutions of such problems should be continued. Provi-
sions should be made for the funds and staff necessary for
the continuance of such work through the Office of Adminis-
trative Procedure of the Department of Justice or such other
agency as may be designated or created for the purpose. This
should insure the availability of such information, over a
representative period, to the departments and agencies con-
cerned and others interested in improving the procedures and
furthering efficient and effective performance of the functions
incident to administrative proceedings.
2. The work of the Conference in the gathering of data
and development of meaningful statistics relating to the func-
tions incidental to the conduct of administrative proceedings
under procedures of the kind prescribed by the Administrative
Procedure Act, where problems of undue length of record and
protraction of proceedings are encountered, has laid the ini-
tial groundwork for, and indicated the feasibility of, develop-
ing meaningful categories of proceedings comparable to those
developed by the Administrative Office of the United States
Courts relating to judicial proceedings. It is recommended
that provision be made for the necessary additional research
and study necessary to attain this objective. Achieving this
goal will be of substantial aid in allowing comparative
analysis of performance under various procedures with a view
to affording agencies the benefit thereof as a basis for im-
provement of procedures.
3. It is recommended that provision, be made for
analyzing the systems presently used by departments and
agencies handling administrative proceedings, in connection
with which problems arise concerning length of record or
protraction of proceedings, for the gathering of data and
processing thereof in aid of effective management and im-
provement of procedures. The Administrative Conference has
gathered information from departments and agencies illus-
trating: (1) the systems used for the gathering and re-
tention of data regarding the various steps in the handling
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Recommendation No. 27 - Continued
of administrative proceedings, and (2) the systems used for
making the information and statistics drawn from such data
available to those responsible for the efficient and effec-
tive performance of functions involved in administrative pro-
ceedings. This material will be available and should be
analyzed. Further studies should also be made so that all
departments and agencies may be informed of the systems
adopted by other departments and agencies and the benefits
flowing therefrom. In addition, the study and analysis
should include consideration of the feasibility of establish-
ing a central data processing system to be available to all
agencies concerned with the type of proceedings in question
and to serve as an economical and helpful tool in discharging
their responsibilities. These measures would inevitably bene-
fit the Government and the public by improved efficiency in
the handling of administrative proceedings.
RECOMMENDATION NO. 28
PART I - Advanced Training of
Professional Personnel
IT IS RECOMMENDED THAT:
28-1. a. Each regulatory agency provide in its
budget submission for the support of a program of advanced
training for highly qualified personnel.
b. Each regulatory agency itself undertake
the in-service training of its own personnel, on a part-
time basis, in the particular problems of its field.
c. The Civil Service Commission call together
representatives of Government agencies, private organiza-
tions and professional groups to plan a series of short-
term training programs for professional staff members of
the various regulatory agencies, concentrating on the sub-
stantive policy problems of various agencies or groups of
agencies.
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Recommendation No. 28 - Continued
d. The Civil Service Commission with the ad-
vice and collaboration of appropriate educational organiza-
tions call together representatives of the major regulatory
agencies and help them devise an immediate program for send-
ing a limited number of their most promising career profes-
sional staff members to universities for advanced study and
research.
e. The Civil Service Commission or any succes-
sor organization to the Administrative Conference undertake
a study of the long-range problem of the training and edu-
cation of professional personnel in the regulatory agencies.
PART II - Section 11 Hearing Examiners
IT IS RECOMMENDED THAT:
28-2. a. The hearing examiner program continue to
be administered under the standard of a single grade per
agency.
b. There be not more than two levels of com-
pensation for hearing examiners in the Federal Service.
c. The determination of the level of compen-
sation of hearing examiners in each agency be made by the
Civil Service Commission.
d. There be substantial and prompt increases
in compensation paid hearing examiners.
28-3. a. Evaluation of a candidate for a hearing ex-
aminer register of eligibles be based upon an analysis of
his past record and work, and a written and oral competitive
examination.
b. The evaluation of the examinations of can-
didates be conducted with the participation of lawyers of
outstanding ability and experience.
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Recommendation No. 28 - Continued
28-4. a. Section 11 of the Administrative Procedure
Act be amended to except the appointment of hearing examiners
from Section 8 of the Veterans' Preference Act of 1944, and
thereafter the Civil Service Commission establish an unranked
register of these eligible for appointment.
b. All initial appointments to hearing examiner
positions be made from the register.
28-5. The first appointment as a Section 11 hearing ex-
aminer be a probationary one and that determination as to suc-
cessful completion of probation be made by the Civil Service
Commission.
28-6. a. Each agency develop and present to each hear-
ing examiner as he begins his duties in that agency an inten-
sive orientation program and at appropriate times in the later
course of his tenure such further educational program as may
appear desirable.
b. Each agency assign sufficient qualified per-
sonnel to develop satisfactory indices and digests of its de-
cisions with current supplements for the benefit of hearing
examiners, other interested personnel, and the public.
c. Each agency provide each hearing examiner
with adequate clerical-stenographic assistance and office
facilities.
d. Each Chief Hearing Examiner exercise in-
erased professional leadership and administration of his
respective hearing examiner corps, including --
(i) the exploration of ways and means
by which the members of his hearing
examiner group can exchange ideas
and methods on how it can perform
its task better and more efficiently;
ii) the development of methods by which
the members of his group can become
better acquainted with agency policy
and expertise and
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Recommendation No. 28 - Continued
(iii) alertness on his part to provide
every helpful service and facility
to the members of his corps to
enable them to concentrate upon
their important, substantive work --
all to the end that each hearing examiner may have a greater
professional pride in his position and better serve his agency.
e. Each Chief Hearing Examiner furnish the ap-
propriate office in any successor organization to this Con-
ference informational reports on his efforts and achievements
under the preceding recommendation.
28-7. a. The hearing examiner program continue to be
administered by the Civil Service Commission under the fol-
lowing commitments made by the Commission: that the program
be administered by a separate office or combined with the ad-
ministration of a legal career service; that this office re-
port to the Commissioners through the Executive Director; that
there be an advisory committee composed predominantly of
lawyers of distinction; and that the evaluation of candidates
for a hearing examiner register of eligibles include a writ-
ten and an oral competitive examination.
b. Any successor organization to the Conference
have as a part of its normal functions the continuous obser-
vation and periodic study of the policies and administration
of the hearing examiner program.
PART III - Government Attorneys
IT IS - RECOMMENDED THAT :
28-8. There be a career service for lawyers in Gov-
ernment which would include appropriate provisions for:
(a) placing original attorney appoint-
ments on a career-merit basis;
(b) a merit promotion program for at-
torneys ;
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Recommendation No. 28 - Continued
(c) a legal career development program
for promising attorneys which would be inter
as well as intra-agency;
(d) publication of information regarding
vacancies in legal positions so as to facili-
tate the lateral transfers of attorneys at
medium and higher levels and also recruitment
from outside of Government into such vacancies.
28-9. Jurisdiction over the legal career service be
placed in the Civil Service Commission, provided that it be
administered by a separate office or combined with the Of-
fice of Hearing Examiners reporting to the Commissioners
through the Executive Director, that there be an advisory
committee composed predominantly of lawyers of distinction;
that any successor organization to the Conference observe
and periodically study the policies and administration of the
legal career service; and that, to this end, the Conference
recommend to the President that legislation be proposed to
revoke the prohibition in the current appropriation act for
the Civil Service Commission which prohibits the expenditure
of appropriated monies for the purpose of examining applicants
for attorney positions, and that such prohibition be omitted
from future appropriation bills.
28-10. a. The agency programs under which law gradu-
ates with a record of high scholastic achievement are ap-
pointed at GS-9, rather than at the normal attorney starting
grade of GS-7, generally called honor programs, be continued;
and that these programs be re-evaluated annually, particu-
larly in terms of the quality of appointees and the turnover
among them.
b. In the light of all available information
concerning existing honor programs, agencies not now conduct-
ing such programs give serious consideration or reconsidera-
tion to instituting them.
c. After further experience serious considera-
tion be given to changing the agency-by-agency honor pro-
grams into a Government-wide program.
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Recommendation No. 28 - Continued
d. Agencies be encouraged to employ as summer
interns law students who have completed their second year of
law school with creditable records.
e. Beginning attorneys who have taken a bar ex-
amination before reporting for work but who have not yet been
admitted to the bar be given temporary appointments of nine
months at the same entrance grade as other beginning attor-
neys who have been admitted to the bar.
f. The Civil Service Commission explore the de-
sirability of legislation to authorize the payment of moving
expenses of new appointees.
g. The Civil Service Commission explore the pos-
sibility of legislation to authorize a certain percentage of
professional hiring for the ensuring fiscal year without await-
ing the passage of the appropriation bill.
28-11. Each agency supply annually to an appropriate
office data pertaining to the appointment, transfer, and sep-
aration of attorneys. Subject to the instructions of that
office, the data should include:
(a) appointment by grade;
(b) separations by grade;
(c) type of separation by grade, e.g.,
death, retirement, dismissal, or
transfers within the agency, to
another agency, or to outside employ-
ment.
(d) name, latest address, age, grade and
number of years service for each at-
torney who transferred (intra or inter-
agency) or resigned to take a non-
government position;
(e) authorized attorney positions by grade,
and the number of those positions filled
as of October 31 of the preceding year;
and the Civil Service Commission conduct
a survey of large law firms and corpora-
?tions to determine the rate of turnover
among legal personnel for comparison with
the rate among government attorneys.
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Recommendation No. 28 - Continued
28-12. The Civil Service Commission standards relating
to attorney positions be amended or altered, as necessary,
to make clear that attorney positions at the highest grades
be available to outstanding attorneys whose duties are of a
type most significant to his agency's functions at the highest
level of such work, or at a subordinate level if such work is
independently done, but without regard to whether or not such
work is subject to technical review or whether the attorney
has other attorneys under him.
28-13. Congress be requested to establish a reasonable
number of supergrade positions at all grades to be dispersed
by the Civil Service Commission in the attorney series.
28-14. Eligible candidates for a career legal service
be unranked; legislative changes necessary to that end be
proposed.
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RECOMMENDATION NO. 29
PART I - Procedural Fairness in the
Debarment of Contractors
IT IS RECOMMENDED THAT:
29-1. (a) Except as provided in subparagraph (b)
below, government debarment of an individual or firm from
the contracts or subcontracts of a government department
or agency or from participating in any federally assisted
construction work should be preceded by (i) notice of
proposed debarment to the parties in question, including
all affiliated firms sought to be debarred, and (ii) opp-
ortunity to such parties to have a trial-type hearing
before an impartial agency board or hearing examiner in
the event there are disputed questions of fact relevant
to the debarment issue.
(b) Debarments from government contracts
and subcontracts made in conformity with subparagraph (a)
above may be applied by other government agencies to their
contracting and subcontracting without opportunity for an
adversary hearing, but only after notice and opportunity
to the parties concerned, including all affiliated firms
sought to be debarred, to explain why the debarment
should not be so extended in whole or in part.
(c) Notices of proposed debarment should
be supported by reasons.
(d) No agency should exclude or remove on
grounds of lack of responsibility any individual or firm
from any list of qualified persons eligible for govern-
ment contracts or subcontracts except in conformity with
the principles set forth herein and in Recommendation No.
29-2 and Recommendation No. 29-3.
(e) The provisions of this Recommendation
No. 29-1 shall not apply to the individual rejection of
any bid or proposal, the procedures for which are set
forth in Recommendation No. 29-4.
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Recommendation No. 29 (Continued)
29-2. (a) In cases of criminal conviction or civil
judgment affecting an individual's or firm's present respon-
sibility as a government contractor or subcontractor, or
upon probable cause for belief that an individual or firm
has committed fraud or has engaged in other conduct showing
a substantial lack of present responsibility as a govern-
ment contractor or subcontractor as determined in writing
by the agency head or his designee, notice of proposed de-
barment may also provide for the temporary suspension of
the individual or firm from further contracting or subcon-
tracting with the government agency concerned pending admin-
istrative determination of the debarment issue. Such sus-
pensions should not exceed a reasonable time, and in no
event should they exceed the time limits set forth in sub-
paragraph (b) below.
(b) Any suspension authorized in accordance
with subparagraph (a) above, should be subject to the
following limitations:
(1) If a notice of suspension and pro-
posed debarment is based in whole or in part upon alleged
fraud incident to obtaining or performing a government
contract or subcontract or upon any other alleged conduct
showing a present lack of integrity or honesty as a gov-
ernment contractor or subcontractor and if within one year
of such notice of suspension and proposed debarment the in-
dividual or firm concerned has been or is criminally charged
by Federal indictment or information or has become or be-
comes a party to a suit involving the United States or its
officers and the subject matter of such indictment, informa-
tion or suit includes the substance of the reasons set forth
in such notice of suspension and proposed debarment, the
suspension may continue for the duration of any trial in a
Federal court of first instance of the issues covered by
such notice of suspension and proposed debarment and for
120 days thereafter (during which period any debarment ac-
tion should be completed). However, if such indictment,
information or suit is not returned or instituted within
one year of such notice of suspension and proposed debar-
ment, the suspension should thereupon terminate., but with-
out prejudice to any right of debarment, unless the
Attorney General or his designee (but not below the level
of an Assistant Attorney General) should determine and
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Recommendation No. 29 (Continued)
notify the head of the department or agency that issued
the notice of suspension and proposed debarment, that dis-
closure, for purposes of administrative debarment from
government contracting, of the Government's evidence of
fraud or of lack of honesty or integrity on the part of
the individual or firm concerned would be substantially
harmful to the Government's law enforcement activities or
to the successful criminal or civil prosecution of such
individual or firm. If the Attorney General or his
designee makes such a determination, the suspension may
continue for a period not to exceed 18 months from the
notice of suspension and proposed debarment and may con-
tinue for the duration of any trial if an indictment,
information or suit is returned or instituted within such
18-month period, as provided in the first sentence of
this subparagraph (b)(1). If a suspension is made or
continued on the basis of such a determination, a further
notice of suspension should be furnished to the individual
or firm concerned. Nothing in this subparagraph (b)(1)
shall prevent the reimposition of a suspension in accord-
ance with subparagraph (a), above, whenever such indict-
ment, information or suit is returned or instituted, in
which event the suspension may continue for the duration
of any trial as provided in the first sentence of this
subparagraph (b)(1), and any administrative trial-type
hearing previously begun for the purpose of determining
the related debarment issue will thereupon terminate
without determination.
(2) If a notice of suspension and pro-
posed debarment is issued for reasons other than those
covered by subparagraph (b)(1), above, the period of sus-
pension should not exceed 90 days. Suspension for such
other reasons beyond 90 days (but not to exceed an addi-
tional 90 days) should not be imposed except upon a
written determination by an official of the rank of
Assistant Secretary, or the equivalent, of the reasons
and necessity therefor; any continuations of such 90-day
periods should be accompanied by new determinations of
the same kind. A copy of each such determination should
be furnished to the suspended individual or firm. In no
event should suspension under this subparagraph (b)(2)
exceed one year or be in addition to any period of sus-
pension under subparagraph (b)(1), above.
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Recommendation No. 29 (Continued)
29-3. Except as provided in Recommendation 29-2
and subject to Recommendation 29-4, the practice of sum-
mary suspensions of individuals and firms from Govern-
ment contracting without notice and opportunity for a
trial-type hearing should be discontinued.
29-4. Any government rejection of an otherwise
successful bid or offer incident to obtaining a govern-
ment contract or subcontract solely or primarily on the
ground that the proposed contractor or subcontractor is
believed to be lacking in business integrity or business
honesty should be preceded by written explanation to such
proposed contractor or subcontractor by the contracting
officer of the reasons for that belief and by the oppor-
tunity for such proposed contractor or subcontractor to
reply to the contracting officer within a reasonable
period of time consistent with the need for making a con-
tract or subcontract award in a timely manner.
29-5. Agency rules of procedure and practice in
all types of debarments should be published, should be
uniform to the extent practicable, and should provide
for a fair and speedy determination.
29-6. Government debarment of an individual or
firm from the contracts or subcontracts of a government
department or agency or firm participating in any fed-
erally assisted construction work should be evidenced
by a decision in writing, which decision sets forth
findings and conclusions as well as the reasons or basis
therefor. Such decision should be furnished to the de-
barred individual or firm. In cases of debarment follow-
ing a trial-type hearing, all debarment decisions (in-
cluding decisions to extend debarments in accordance with
Recommendation 29-1 (b)) should be published or, in accord-
ance with published rule, made available for public inspec-
tion, except those which are required to be held confiden-
tial for good cause found by the agency head or his designee
and therefore may not be cited as precedents.
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Recommendation No. 29 (Continued)
PART II - Grounds and Scope of Debarment
IT IS RECOMMENDED THAT:
29-7. (a) All grounds for debarment should be
explicitly set forth in appropriate agency regulations,
which regulations should be published, and, to the ex-
tent practicable and desirable, be uniform.
(b) Such regulations should to the extent
feasible set forth standards and criteria for (i) deter-
mining business affiliates of debarred firms and individ-
uals, (ii) extending debarment to such affiliates, (iii)
determining when fraud or criminal conduct of an owner,
stockholder, officer, director, or employee will be im-
puted to a business firm or when termination of such
person's relationship to the firm will avoid or remove
debarment of the firm, and (iv) determining the scope of
administrative debarments in terms of their applicability
to all agency contracts or subcontracts with the debarred
firm or individual or to particular types of contracts or
subcontracts, or to contracts or subcontracts for particu-
lar products or services.
(c) The grounds for administrative debar-
ment should include, without limitation, fraud incident
to obtaining or performing a government contract or sub-
contract or any other conduct showing a serious and
present lack of business integrity or business honesty
as a government contractor or subcontractor. Findings
of such fraud or other conduct should be based on sub-
stantial evidence which may include a criminal or civil
judgment or any findings of fact therein relating materi-
ally to the grounds of debarment.
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Recommendation No. 29 (Continued)
PART III - Debarment Periods
IT IS RECOMMENDED THAT:
29-8. The Armed Services and Federal Procurement
Regulations and the regulations of the Secretary of Labor
issued pursuant to the Reorganization Plan No. 14 of 1950
(i) should be amended to provide that, except as other-
wise provided by statute or Executive order, debarment
should be for a reasonable, definitely stated period of
time, commensurate with the seriousness of the cause
therefor, but not to exceed 3 years, and (ii) should ex-
pressly provide for removal of debarment within the de-
barment period upon a showing of current responsibility
to perform government contracts or subcontracts or to
participate in federally assisted construction work, as
the case may be.
29-9. Congress should be requested to amend the
Buy American and Davis-Bacon Acts to remove the absolute
debarment penalties and to authorize administrative dis-
cretion with regard to the scope of debarment and to the
period of debarment in conformity with the principles set
forth in Recommendation 29-8 above.
RECOMMENDATION NO. 30
IT IS RECOMMENDED THAT:
The Conference approves the principle of discovery
in adjudicatory proceedings and recommends that each agency
adopt rules providing for discovery to the extent and in the
manner appropriate to its proceedings.
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