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Sec. 105. (a) (1) In a case of actual controversy as to the validity of Judicial reany order under section 103, any person who will be adversely affecteil view. by such order when it is effective may at any time prior to the sixtieth day after such order is issued file a petition with the United States court of appeals for the circuit wherein such person resides or has his principal place of business, for a judicial review of such order. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Secretary or other officer designated by him for that purpose. The Secretary thereupon shall file in the court the record of the proceedings on which the Secretary based his order, as provided in section 2112 of title 28 of the United States Code.

72 Stat. 941. (2) If the petitioner applies to the court for leave to adduce addi. Modification tional evidence, and shows to the satisfaction of the court that such of findings. additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the proceeding before the Secretary, the court may order such additional evidence (and evidence in rebuttal thereof) to be taken before the Secretary, and to be adduced upon the hearing, in such manner and upon such terms and conditions as to the court may seem proper. The Secretary may modify his findings as to the facts, or make new findings, by reason of the additional evidence so taken, and he shall file such modified or new findings, and his recommendation, if any, for the modification or setting aside of his original order, with the return of such additional evidence.

(3) Upon the filing of the petition referred to in paragraph (1) of this subsection, the court shall have jurisdiction to review the order in accordance with section 10 of the Administrative Procedure Act (5 U.S.C. 1009) and to grant appropriate relief as provided in such 60 Stat. 243. section.

(4) The judgment of the court affirming or setting aside, in whole or in part, any such order of the Secretary shall be final, subject to review by the Supreme Court of the United States upon certiorari or certification as provided in section 1254 of title 28 of the United States 62 Stat. 928. Code.

(5) Any action instituted under this subsection shall survive, notwithstanding any change in the person occupying the office of Secretary of any vacancy in such office.

(6) The remedies provided for in this subsection shall be in addition to and not in substitution for any other remedies provided by law.

(b) A certified copy of the transcript of the record and proceedings under this section shall be furnished by the Secretary to any interested party at his request, and payment of the costs thereof, and shall be admissible in any criminal, exclusion of imports, or other proceeding arising under or in respect of this title, irrespective of whether proceedings with respect to the order have previously been initiated or become final under subsection (a).

Conference Report

Contains nothing helpful.

House Passed Act

Same as enacted Act.

House Debate

Congressional Record-House
August 17, 1966, 19629

Mr. STAGGERS.

The judicial review provisions of the judicial review provisions are those of bill should afford protection to any inter- the Food and Drug Act and the Adminested party I he wishes to challenge or- istrative Procedure Act section 105. ders of the Secretary. Essentially the

Congressional Record-House
August 17, 1966, 19647

Mr. SMITH of Iowa. Mr. Chairman, several hundred motor vehicles per year, I first want to congratulate the gentle- the price of those automobiles or vehicles man from West Virginia and his com- naturally is affected by the standards mittee because since the gentleman has adopted. If the attorney general made been chairman of this committee he has a showing that the total cost of these worked through some difficult legislation vehicles that the State purchases would and has shown some real leadership in be increased several hundred or several doing so.

thousand dollars without commensurate Mr. Chairman, I do expect to support increase in safety, would that attorney this bill. However, there has been a general be representing a party "adquestion that has been raised as to who versely affected" within the meaning of can appeal under section 105(a) (1). I section 105(a) (1) ? would like to ask the gentleman, Is the Mr. STAGGERS. In my opinion, yes. attorney general of a State, a person Mr. SMITH of Iowa. If the attorney who could be adversely affected and have general made a showing that safety a right to appeal under section 105 standards are actually reduced by the (a) (1) ?

safety standards adopted, would he be a Mr. STAGGERS. The answer would person adversely affected who could apbe yes, he could be.

peal under section 105(a) (1) ? Mr. SMITH of Iowa. If the State Mr. STAGGERS. The answer in my government purchases several dozen or opinion would be "Yes."

Congressional Record-House
August 17, 1966, 19649 and 19650

Mr. DINGELL. I can say to the gen- rather point out to my good friend that tleman that I can conceive of a situation such is going to be a rarity, and we have where possibly some Secretary of Trans- put into the bill for this very reason portation or Secretary of Commerce a requirement of the Administrative would not behave reasonably and well Procedure Act which must be complied under the circumstances. But I would with by the Secretary, and a clear au19650

thorization for the industry to appeal in legislation or to the manner in which it
the event the Secretary acts arbitrarily happens to be carried out. That, of
or capriciously, or that he overreaches course, was the principal purpose of my
the ordinary and reasonable bounds for taking the floor.
good judgment and reasonable behavior. Mr. MOSS. Mr. Chairman, will the

Mr. CUNNINGHAM. My only inter- gentleman yield?
est was to determine, since the gentle. Mr. DINGELL. I yield to the gentle-
man comes from an area that is pri. man from California.
marily concerned, whether he is satis. Mr. MOSS. It is clearly not the in-
fied. If he is satisfied, it is all right with tent that unreasonable standards be im-
me.

posed.
Mr. DINGELL. As long as the bill is Mr. DINGELL. The gentleman is ab-
interpreted reasonably, I do not believe · solutely correct.
I could assert any objection either to the

Congressional Record-House
August 17, 1966, 19650 and 19651

Mr. MACDONALD. I thank the my chairman, would any individual have chairman.

the right to bring such an order for First of all, I would like to commend petition in the U.S.Court of Appeals? the chairman for the way in which these Mr. STAGGERS. In my opinion that hearings were held. On such a con- if he is adversely affected, he would have. troversial subject, both sides were able

I quote from the report: to give the testimony they wanted to.

The courts generally have construed this There is still one question that re term to permit many diverse individuals and mains in my mind, and I would hope

groups and associations of individuals to the RECORD would try to make this clear. have judicial review of administrative acIt goes to section 105(a) (1), which talks tions. The committee believes it would be about the controversy about the validity unwise at the outset of this new and farof any order given by whoever will issue

reaching traffic safety program to attempt

to delineate more precisely than this those the order. I ask the chairman whether

persons who will have standing to seek judi-
or not this would include any individual

clal review
who would be adversely affected, and by
that I mean anybody who drives a car,

Mr. MACDONALD. In other words,
or a defective car and has an accident, Mr. Chairman, this section does not
or has reason to suppose he will have specifically hold that the people who can
an accident by virtue of the fact that make appeals from a ruling or whoever
the car was not properly turned out, makes the rule are confined to the in-
who would obviously in my judgment be dustry or to people who manufacture
adversely affected. But it does not seem cars. Is that correct?
clear to me in either the report or the

Mr. STAGGERS. That is my inter- 19651 bill itself that this is spelled out. I ask

pretation.

Congressional Record-House
August 31, 1966, 21349

Mr. STAGGERS.

COMMON LAW LIABILITY
The House version contains a provision
which specifically provides that compli-
ance with Federal motor vehicle safety
standards does not exempt any person

from any liability under common law.
The Senate version had no comparable
provision. The managers for the Senate
accopted the House version.

House Committee Report House Report 1776, Pages 12, 20, and 21

4. Judicial review

Section 105 sets forth a procedure for judicial review based on comparable provisions in the Food and Drug Act.

20

JUDICIAL REVIEW Section 105 of the reported bill establishes the detailed procedure for judicial review of any order issued under section 103 of this title. In a case of actual controversy as to the validity of such an order any person who will be adversely affected by the order when it is effective may before the 60th day after the order is issued petition the U.S. court of appeals where he resides or has his principal place of business for judicial review of the order. The court is to transmit a copy of the petition to the Secretary and the Secretary thereupon to file a record of the proceedings on which he based his order. The court is granted authority to order additional evidence where it is shown that such additional evidence is material and there were reasonable grounds for failing to produce it in the proceeding before the Secretary. The Secretary may thereupon modify his findings or make new findings by reason of such additional evidence and shall file such modified or new findings and his recommendations—if any–modifying or setting aside his original order, with the return to the court of such additional evidence.

The court is given jurisdiction to review any order in accordance with section 10 of the Administrative Procedure Act and to grant appropriate relief as provided in that section.

The judgment of the court with respect to any order of the Secretary is final subject to review by the Supreme Court. The remedies provided for in subsection (a) of section 105 are to be in addition to and not in substitution for any remedies otherwise provided by law.

Subsection (b) of this section provides that a certified copy of the transcript of the records and proceedings under this section shall be furnished by the Secretary to any interested party upon his request and payment for cost thereof, and shall be admissible in any proceeding-criminal, exclusion of imports, or otherwise-arising under or in respect of this title, whether or not proceedings with respect to the order have been previously initiated or become final under subsection (a) of this section.

The provisions of this section are comparable to the general judicial review provisions in the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 371(f)). The term "person adversely affected” which is contained in this bill as well as the Food and Drug Act and a number of other statutes has been subject to judicial interpretation in many cases. The courts generally have construed this term to permit many diverse individuals and groups and associations of individuals to have judicial review of administrative actions. The committee believes that it would be unwise at the outset of this new

and far-reaching traffic safety program to attempt to delineate more precisely than this those persons who will have standing to seek judicial review.

Except for two changes the reported bill is substantially unchanged from the introduced bill. The introduced bill provided that the petition for review must be filed within 45 days after the date the order 21 was issued; this was extended by the committee to a 60-day period. The other change from the introduced bill is the committee revision of paragraph (3) of subsection (a) to provide that the court shall have jurisdiction to review an order in accordance with section 10 of the Administrative Procedure Act and to grant relief as provided therein. This inclusion means (1) that a reviewing court will consider the entire record before it and (2) that the findings of the Secretary will be sustained when supported by substantial evidence on the basis of the entire record.

Senate Passed Act

Congressional Record-Senate
June 24, 1966, 14257

Judicial review of orders SEC. 105. (a) (1) In a case of actual contro- any, for the modification or setting aside of versy as to the validity of any order under his original order, with the return of such section 102 or section 103, any person who additional evidence. will be adversely affected by such order when (3) Upon the filing of the petition referred it is effective may at any time prior to the to in paragraph (1) of this subsection, the sixtieth day after such order is issued Ale a court shall have jurisdiction to review the petition with the United States court of ap order in accordance with section 10 of the peals for the circuit wherein such person re- Administrative Procedure Act (5 U.S.C. 1009) sides or has his principal place of business, for and to grant appropriate relief as provided & judicial review of such order. A copy of the in such section. petition shall be forth with transmitted by

(4) The judgment of the court afirming the clerk of the court to the Secretary or or setting aside, in whole or in part, any other oficer designated by him for that pur. such order of the Secretary shall be final, pose. The Secretary thereupon shall ble in subject to review by the Supreme Court of the court the record of the proceedings on the United States upon certiorart or certiwhich the Secretary based his order, as pro fication as provided in section 1254 of title vided in section 2112 of title 28 of the United 28 of the United States Code. States Code.

(6) Any action instituted under this sub(2) If the petitioner applies to the court section shall survive notwithstanding any for leave to adduce additional evidence, and change in the person occupying the office shows to the satisfaction of the court that of Secretary or any vacancy in such office. such additional evidence is material and (6) The remedies provided for in this that there were reasonable grounds for to

subsection shall be in addition to and not Tallure to adduce such evidence in the pro- in substitution for any other remedies proceeding before the secretary, the court may vide by law. order such additional evidence (and ovi. (b) A certified copy of the transcript of

the record and proceedings under this secdence in rebuttal thereof) to be taken before

tion shall be furnished by the Secretary to the Secretary, and to be adduced upon the hearing, in such manner and upon such

any interested party at his request, and on

payment of the costs thereof, and shall be terms and conditions as to the court may

admissible in any proceeding arising under seem proper. The Secretary may modify

or in respect to this title, irrespective of his indings as to the facts, or make new

whether proceedings with respect to the order findings, by reason of the additional evidence

have previously been instituted or become 60 taken, and he shall file such modified or

final under subsection (a). new indings, and his recommendation, If

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