On the rule-making feature of S. 918-and those exclus provisions apply both to adjudications and to the rule-making 5. tures that language is, as already noted, "the conduct of the X tary Establishment." That language is commen to the other two: as well as on the administrative adiudications provisions. Ther no absolute definition of what the Military Establishment is. S times it includes the War Department and the Army, and somet in some appropriation bills, it apparently does not include the W Department but includes the Army.

Senator HATCH. Are you satisfied with the word "conduct"! Captain BENDETSON. We are not satisfied with that, sir, beva we feel it is restrictive.

Senator HATCH. I have never been satisfied with that wor! many of these bills.

Captain BENDETSON. We feel it cannot be foretold in advance; what it does mean. It may conceivably include certain of our f tions and activities and exclude some of the others. We feel the should be no doubt on the matter.

Referring to the administrative adjudications provisions of St the present exceptions embodied in section 301 of subparagraph are these: It exempts again the

conduct of the Military Establishment, and the selection or je curement of men or materials for the armed forces of the United States but on the following page, page 30, that is in turn apparently met fied by a proviso which says, in effect, that even though these mi be national defense functions or may be related to the conduct of **Military or Naval Establishment

the provisions of the title shall apply to all proceedings in which the statutor rights, duties, or other legal relations of any person are required by law ** be determined only after opportunity for hearing and, if a hearing be hesi only upon the basis

of the record so made,

We feel that that is very ambiguous. A great many of our activi ties would involve some action which would affect the statutory rights or the duties or other legal relations.

Now, for example, we have regulations adopted pursuant to law which provide for hearing on the classification of Army personnes If an officer is not efficient, we have what is known as class B pro ceedings. We also have line of duty boards to determine whether disability is an incident of service. In some cases our hearings follow regulations which have been adopted pursuant to express statutory direction; in other cases, and in accordance with the long established policy of the War Department, even though the statute may not require any regulation on the subject, we do impose upon ourselves in every c; se a type of regulation which accords a fair hearing

We feel there is some doubt as to whether that type of regulat on, which has the force of law while it is in existence, would be withan then eating of the phrase "required by law," so that in a great many particulars, on claims, on personnel matters, on navigable waters, of procidement to supply an armed force, we do affect the rights, the legal relations and duties of persons both within the Army and out side of the Army.

1

19ot function, if we were made in any respect sub wrents even though there may be some incident i ift of that nature. So we feel that under this an exoption, but the proviso is rather far ven gut be required to meet the requirements of the TATA respect

↑ the same is true of all three bills. S 675, sec a see at exempt or. It is not, however, qualified quite asure t ́e exceptions in section 391 of S GE It

nistrative adiudication is within the meaning stest any lves the rights or duties or other leg 1 where they are required by law to be heard and pon; the rvcopi so made. Then there are exceptions is We have already read, natacly, that the pro negar 1 to adnana frative adjudication shall not Taffers concertät g the conduct of the Military

we are in doubt as to post what that means, aa for an exclusqonaty provision of the nature *V presented to be added a- an amendment to

1 strong more, Captur? Does that con plete it is all, wr, for the present

On the rule-making feature of S. 918-and those exclusionary provisions apply both to adjudications and to the rule-making features-that language is, as already noted, "the conduct of the Military Establishment." That language is common to the other two bills as well as on the administrative adjudications provisions. There is no absolute definition of what the Military Establishment is. Sometimes it includes the War Department and the Army, and sometimes. in some appropriation bills, it apparently does not include the War Department but includes the Army.

Senator HATCH. Are you satisfied with the word "conduct"?

Captain BENDETSON. We are not satisfied with that, sir, because we feel it is restrictive.

Senator HATCH. I have never been satisfied with that word in many of these bills.

Captain BENDETSON. We feel it cannot be foretold in advance just what it does mean. It may conceivably include certain of our functions and activities and exclude some of the others. We feel there should be no doubt on the matter.

Referring to the administrative adjudications provisions of S. 674, the present exceptions embodied in section 301 of subparagraph (c) are these: It exempts again the

conduct of the Military

* * *

Establishment, and the selection or procurement of men or materials for the armed forces of the United States

but on the following page, page 30, that is in turn apparently modified by a proviso which says, in effect, that even though these may be national-defense functions or may be related to the conduct of the Military or Naval Establishment

the provisions of the title shall apply to all proceedings in which the statutory rights, duties, or other legal relations of any person are required by law to be determined only after opportunity for hearing and, if a hearing be held, only upon the basis

of the record so made.

We feel that that is very ambiguous. A great many of our activities would involve some action which would affect the statutory rights or the duties or other legal relations.

Now, for example, we have regulations adopted pursuant to law which provide for hearing on the classification of Army personnel. If an officer is not efficient, we have what is known as class B proceedings. We also have line of duty boards to determine whether disability is an incident of service. In some cases our hearings follow regulations which have been adopted pursuant to express statutory direction; in other cases, and in accordance with the long-established policy of the War Department, even though the statute may not require any regulation on the subject, we do impose upon ourselves in every case a type of regulation which accords a fair hearing.

We feel there is some doubt as to whether that type of regulation, which has the force of law while it is in existence, would be within the meaning of the phrase "required by law." so that in a great many particulars, on claims, on personnel matters, on navigable waters, on procurement to supply an armed force, we do affect the rights, the legal relations and duties of persons both within the Army and outside of the Army.

We feel we could not function, if we were made in any respect subject to these requirements, even though there may be some incidental and consequent effect of that nature. So we feel that under this exception-it may be an exception, but the proviso is rather farreaching that we might be required to meet the requirements of the measure in a great many respects.

To a certain extent the same is true of all three bills. S. 675, section 501, has a similar exemption. It is not, however, qualified quite to the same extent as are the exceptions in section 301 of S. 674. It provides that any administrative adjudication is within the meaning of the bill only where it involves the rights or duties or other legal relations of persons where they are required by law to be heard and to be determined upon the record so made. Then there are exceptions which are the same as we have already read, namely, that the provisions of the title in regard to administrative adjudication shall not in any event apply to matters concerning the conduct of the Military Establishment. Again, we are in doubt as to just what that means, and therefore we ask for an exclusionary provision of the nature which we have already presented to be added as an amendment to all three bills.

Senator HATCH. Anything more, Captain? Does that complete your statement ?

Captain BENDETSON. That is all, sir, for the present.

Senator HATCH. Any questions, Senator Austin?

Senator AUSTIN. No.

Senator HATCH. Senator Danaher?

Senator DANAHER. NO.

Senator HATCH. Thank you, Captain. We were glad to have you with us.

Captain BENDETSON. Thank you.

SUPPLEMENTARY STATEMENT OF THE WAR DEPARTMENT

Hon. CARL A. HATCH,

WAR DEPARTMENT, Washington, April 26, 1941.

Chairman of the Judiciary Subcommittee on

Senate Bills 674, 675, and 918, United States Senate. DEAR SENATOR HATCH: The War Department is opposed to the enactment of S. 674 to prescribe fair standards of duty and procedure of administrative officers and agencies, to establish an administrative code, and for other purproses: S. 675 to revise the administrative procedure of Federal agencies; to establish the Office of Federal Administrative Procedure; to provide for hearing commissioners; to authorize declaratory rulings by administrative agencies; and for other purposes: or S. 918, to provide for the more economical, expeditious, and just settlement of disputes with the United States, and for other purposes, without more definite provisions excluding the activities of the War Department and the Army from their application.

It will be necessary to consider separately those provisions of each bill which are designed to except, in certain instances, some of the functions of the various agencies of the executive branch of the Government. Substantially, each of the proposals deals with two general processes. These are the rulemaking and the adjudicatory processes. In each case certain exceptions are provided. The pertinent rule-making exceptions set forth in each bill are as follows:

S. 674, which for convenience hereinafter will be designated as the "minority bill." provides in effect (sec. 201) that with respect to "the conduct of military, naval, or national-defense functions, or the selection or procurement of men

or materials for the armed forces of the United States" an agency may exempt itself from compliance with the rule-making requirements proposed upon an express finding that such compliance would be contrary to the public interest. The extent to which the War Department could exempt itself and the Army under this provision is a question of difficult solution. That it could not wholly exempt itself and the Army is clear. Whether the many so-called nonmilitary functions of this department, with the administration of which it is charged by statute, may be regarded as national-defense functions within the meaning of the bill is not apparent. While the supervision and control of navigable waters is manifestly related to the national defense, in some of its aspects the rights, privileges, and immunities of private citizens are clearly affected To the extent that the national defense is involved, it can readily be demonstrated that the necessity for compliance with the rule-making requirements proposed in all three of the measures would be contrary to the public interest. The point to be made is that where there is an interrelation of these aspects, great uncertainty would result. Moreover, there are many phases of military administration which may not be covered by an exception applicable only to "the conduct of military * functions." If any aspect of military ad ministration would be subjected to the rule-making requirements, serious impairment of the efficiency of the Army would ensue. Examples of this will be presented hereinafter.

* *

S. 675, which for convenience will be herein designated as the "majority bill," endows the Director of Federal Administrative Procedure with power to deter mine from time to time those agencies within the provisions of the bill so far as rule-making requirements are concerned. The discretion accorded him is not such that he could exempt only certain functions of a given agency from the rule-making requirements. His power is limited to the designation of those administrative establishments which are either wholly within or wholly excluded from the operation of the bill. That the proposal contemplates the vesting of power to determine from time to time whether the regulatory procedures of the War Department and the Army are to be wholly subject to the rule-making requirements provided in the bill is alone sufficient where the national defense is concerned to give cause for vigorous protest. It needs no extended demonstration to render manifest the utter impossibility of com manding, training, transporting, procuring for, and administering an armed force under conditions which would require the publication of notice before any regulation or order could be promulgated, revised, amended, or rescinded. and which would accord to every indiviual affected the right to protest the application of such regulations and orders and to petition for their revision or rescission. It is inconceivable that anyone could seriously suggest the advis ability of subjecting any phase of the conduct, training, discipline, transportation, employment, procurement, or functions of the military establishments to such requirements. The power to do so may be open to grave doubts on constitutional grounds, viz, whether upon the constitutional command function of the President there may be superimposed by the Congress, as an exercise of its power to make rules for the government of the land and naval forces, the necessity for compliance with statutory procedures which would gravely impair the efficient use of the command power.

S. 918, which for convenience will hereafter be designated as the "Groner" bill," embodies a single set of exceptions and reservations (sec. 900). These are equally applicable to both the rule-making and the administrative-adjudication provisions. Excepted from the application of the bill are all matters concerning or relating to the following:

"(b) The conduct of the Military or Naval Establishments, and the selection or procurement of men or materials for the armed forces of the United States; "(c) The election, appointment, promotion, transfer, dismissal, or discipline of an employee or officer of any agency:"

These exclusionary provisions are manifestly ambiguous. There is no established definition of the term "Military Establishment." It is some times regarded as inclusive of both the War Department and the Army. On the other hand, it has been used with reference to the Army alone. Moreover, the significance of the word "conduct" leaves the scope of the exception open to conjecture.

With the objectives, fundamental to the American concept, of assuring to all persons substantial justice through the reformation of Federal administrative procedure where necessary to accord with this concept, this department te