As Enacted SEC. 105. (a) (1) In a case of actual controversy as to the validity of Judicial re- 3 any order under section 103, any person who will be adversely affected 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. (2) If the petitioner applies to the court for leave to adduce additional evidence, and shows to the satisfaction of the court that such 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 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 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). 72 Stat. 941. Modification of findings. 60 Stat. 243. 62 Stat. 928. 4 Conference Report Contains nothing helpful. Mr. SMITH of Iowa. Mr. Chairman, I first want to congratulate the gentleman from West Virginia and his committee because since the gentleman has been chairman of this committee he has worked through some difficult legislation and has shown some real leadership in doing so. Mr. Chairman, I do expect to support this bill. However, there has been a question that has been raised as to who can appeal under section 105 (a) (1). I would like to ask the gentleman, Is the attorney general of a State, a person who could be adversely affected and have a right to appeal under section 105 (a) (1)? Mr. STAGGERS. The answer would be yes, he could be. Mr. SMITH of Iowa. If the State government purchases several dozen or several hundred motor vehicles per year, the price of those automobiles or vehicles naturally is affected by the standards adopted. If the attorney general made a showing that the total cost of these vehicles that the State purchases would be increased several hundred or several thousand dollars without commensurate increase in safety, would that attorney general be representing a party "adversely affected" within the meaning of section 105 (a) (1) ? Mr. STAGGERS. In my opinion, yes. Mr. SMITH of Iowa. If the attorney general made a showing that safety standards are actually reduced by the safety standards adopted, would he be a person adversely affected who could appeal under section 105(a) (1)? Mr. STAGGERS. The answer in my opinion would be "Yes." Congressional Record-House Mr. DINGELL. I can say to the gentleman that I can conceive of a situation where possibly some Secretary of Transportation or Secretary of Commerce would not behave reasonably and well under the circumstances. But I would rather point out to my good friend that such is going to be a rarity, and we have put into the bill for this very reason a requirement of the Administrative Procedure Act which must be complied with by the Secretary, and a clear au 19650 thorization for the industry to appeal in the event the Secretary acts arbitrarily or capriciously, or that he overreaches the ordinary and reasonable bounds for good judgment and reasonable behavior. Mr. CUNNINGHAM. My only interest was to determine, since the gentleman comes from an area that is primarily concerned, whether he is satisfied. If he is satisfied, it is all right with me. Mr. DINGELL. As long as the bill is interpreted reasonably, I do not believe I could assert any objection either to the legislation or to the manner in which it happens to be carried out. That, of course, was the principal purpose of my taking the floor. Mr. MOSS. Mr. Chairman, will the gentleman yield? Mr. DINGELL. I yield to the gentleman from California. Mr. MOSS. It is clearly not the intent that unreasonable standards be imposed. Mr. DINGELL. The gentleman is absolutely correct. Congressional Record-House First of all, I would like to commend the chairman for the way in which these hearings were held. On such a controversial subject, both sides were able to give the testimony they wanted to. There is still one question that remains in my mind, and I would hope the RECORD would try to make this clear. It goes to section 105(a) (1), which talks about the controversy about the validity of any order given by whoever will issue the order. I ask the chairman whether or not this would include any individual who would be adversely affected, and by that I mean anybody who drives a car, or a defective car and has an accident, or has reason to suppose he will have an accident by virtue of the fact that the car was not properly turned out, who would obviously in my judgment be adversely affected. But it does not seem clear to me in either the report or the bill itself that this is spelled out. I ask my chairman, would any individual have the right to bring such an order for petition in the U.S/Court of Appeals? Mr. STAGGERS. In my opinion that if he is adversely affected, he would have. I quote from the report: 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 it would be unwise at the outset of this new and farreaching traffic safety program to attempt to delineate more precisely than this those persons who will have standing to seek judicial review. Mr. MACDONALD. In other words, Mr. Chairman, this section does not specifically hold that the people who can make appeals from a ruling or whoever makes the rule are confined to the industry or to people who manufacture cars. Is that correct? Mr. STAGGERS. That is my interpretation. 19651 Congressional Record-House August 31, 1966, 21349 Mr. STAGGERS. COMMON LAW LIABILITY The House version contains a provision which specifically provides that compliance 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 accepted 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. 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 20 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 Judicial review of orders SEC. 105. (a) (1) In a case of actual controversy as to the validity of any order under section 102 or section 103, any person who will be adversely affected 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. (2) If the petitioner applies to the court for leave to adduce additional evidence, and shows to the satisfaction of the court that such 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, f 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 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 Code. (5) Any action instituted under this subsection shall survive notwithstanding any change in the person occupying the office of Secretary or 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 provide 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 on payment of the ccsts thereof, and shall be admissible in any proceeding arising under or in respect to this title, irrespective of whether proceedings with respect to the order have previously been instituted or become final under subsection (a). |