Bill to Recodify the Administrative Procedure Act Introduced in the U. S. Senate by Senator Ervin S. 4094

American Bar Association's Draft of Bill

On July 1, 1958, S. 4094 was introduced by Senator Sam J. Ervin, Jr., Democrat, North Carolina, for himself and Senator John M. Butler, Republican, Maryland. Both senators are lawyers and members of the Senate Committee on the Judiciary. Senator Ervin is a member of the Committee on Government Operations; and Senator Butler, a member of the Committee on Interstate and Foreign Commerce.

A comparison of S. 4094 with the draft of the American Bar Association's proposed code as of April 13, 1957, shows the text of the bill and the ABA draft to be identical. A comparison of the "Administrative Procedure Act and the American Bar Association Proposed Code of Federal Administrative Procedure," as of April 13, 1957, is printed in the May, 1957, I. C. C. Practitioners' Journal, together with "Commentary by Advisory Group 2, ABA," on pages 851-901; Vol. XXIV: No. 8.

Mr. Ashley Sellers, a member of the American Bar Association and the Association of I. C. C. Practitioners, presented his views to the practitioners at their annual meeting in Chicago, May, 1957. As Chairman of the Special Committee on Legal Services and Procedure, American Bar Association, he defended their legislative aims. Starr Thomas, Chairman of the Special Committee on Administrative Law, Association of I. C. C. Practitioners-also a member of the American Bar Association-pointed out the dangerous aspects of these proposals, "The American Bar Association's Legislative Proposals as They Affect the Interstate Commerce Commission and Its Practitioners," in a reply to Mr. Sellers' advocacy of the ABA objectives. Their remarks appear in the September, 1957, Practitioners' Journal, Vol. XXIV: No. 10.

The Honorable Earl W. Kintner, General Counsel of the Federal Trade Commission, himself active in the American Bar Association, addressed the 29th Annual Meeting of the Association of I. C. C. Practitioners in May this year. He spoke of the present legislative effort of the American Bar Association as "a massive, well-organized oneto dismember and judicialize the administrative process." His address, "Voluntary Improvement of Administrative Processes in Lieu of Statutory Changes," is printed in this issue.

The Honorable Abe McGregor Goff, member of the Interstate Commerce Commission, has followed the aims of the American Bar Association in the field of administrative law, as a member of the bar association and as General Counsel of the Post Office Department-long before his appointment to the Interstate Commerce Commission. His views on the proposed code are also presented in this issue of the Journal. He says: "As lawyers and specialized nonlawyer practitioners, we, of

course, are intimately concerned with the statutes which relate to our professional activities. * * * I listened * * * to the devastating criticism of the proposed code by Starr Thomas of the Practitioners' Association, ably supplemented by extempore discussions by my friend Willard Gatchell of the Federal Power Commission and my fellow Idaho Law School graduate A. J. Gustin Priest, a veteran practitioner, now at the University of Virginia. *** Those of you at the Annual Convention heard the address by guest speaker Earl W. Kintner. *** He not only flattens the Administrative Court boys but suggests that any needed improvement of the administrative processes can best be made in our rules voluntarily, in lieu of statutory changes."

For the convenience of our members and readers there are mentioned here some of the current legislation and activities of the Association of Interstate Commerce Commission Practitioners in opposition to the bills sponsored by the American Bar Association, inspired mainly by the Hoover Commission Task Force recommendations.

Major bills not finally acted upon by the 85th Congress at the time of its adjournment, in addition to S. 4094, embodying American Bar Association proposed legislation, were:

H. Res. 119. This resolution would establish a standing House Committee on Administrative Procedure and Practice. (H. Res. 462, introduced April 10, 1956, was a similar resolution. Practitioners' association representatives appeared before the House Rules Committee and filed statement opposing resolution, as well as H. R. 6114 and H. R. 6115, to recodify the Administrative Code. The late Wilbur LaRoe, Jr., and Mr. John R. Turney made these representations on behalf of the practitioners' association. Vol. XXIII : No. 9, June 1956, pages 902-927).

H. R. 3350 (companion bills, H. R. 3349, H. R. 7006, and S. 932). This measure would establish an Office of Federal Administrative Practice, provide for the appointment and administration of a corps of hearing commissioners, provide for the admission to and control of practice before the administrative agencies and establish a Legal Career Service for the improvement of legal services in government. Title IV of this bill would fetter if not eliminate the nonlawyer expert before the Interstate Commerce Commission and other federal administrative agencies. The Honorable Howard Freas, Chairman of the Interstate Commerce Commission, comments on Title IV in "The Qualification Standard for Practitioners, "-Vol. XXV: No. 8, May, 1958, pages 830-835.

H. R. 8751 (companion bill, S. 2292). This bill would establish an Administrative Court. The Honorable Robert W. Minor, Member of the Interstate Commerce Commission, discusses the American Bar proposals, and specifically "The Administrative Court-Here It Comes Again" in the May, 1957, I. C. C. Practitioners Journal, Vol. XXIV: No. 8, pages 807-815.

In December, 1956, the Association of I. C. C. Practitioners conducted a ballot by mail among its members. This ballot was in the form of a proposed resolution in opposition to proposed changes in administrative procedure and practices advocated by the American Bar Association

in its draft of October 27, 1956. This draft was published in the December, 1956 Journal, Vol. XXIV: No. 3, Section I, pages 259-301. Proposed resolution is on pages 305 and 306. About 60 percent of the members voted by mail, with nearly 94 percent of the replies in favor of the resolution opposing the ABA proposals.

On November 3 and 4, 1955, a special meeting of the Association of I. C. C. Practitioners was held in Washington, D. C., to act on similar proposals as they were originally sponsored by the Hoover Task Force, in H. R. 6114 and H. R. 6115, of the 84th Congress. The American Bar Association bills are an outgrowth of the Hoover Task Force recommendations. The proposed Administrative Code, as embodied in these bills, was vigorously condemned by the Interstate Commerce Commission Practitioners. "This is War," wrote the late Wilbur LaRoe, Jr., page 123, Section I, of the November, 1955 Journal, which carried the full report of the meeting: "Impact of Proposed Administrative Code upon Interstate Commerce Commission, Its Practice and Its Practitioners," as Section II, Vol. XXIII: No. 2.

While none of these bills has yet been enacted, it is to be expected that they will be continually presented in each successive Congress, including the 86th, when it convenes in January, 1959—with the American Bar Association driving for their enactment into law.

For those who believe that such legislation is not in the "public interest" and that the Interstate Commerce Commission should not be deprived of its "specialized nonlawyer" practitioners, the foregoing makes dear the need for "eternal vigilance.'

On May fifth, this year, a subcommittee of the House Committee on Government Operations released a preliminary report on a "Study of Administrative Organization, Procedure and Practice," on hearings held February 25 and 26, 1958. The chairman of both the main committee and the Executive and Legislative Subcommittee submitting the report, is William L. Dawson, Democrat, Illinois. Chairman Dawson sponsored H. R. 3349, and Dante B. Fascell, Democrat, Florida, a member of this subcommittee, sponsored H. R. 3350. These are identical bills, endorsed by ABA, on administrative practice and procedure, described above.

The Executive Secretary was advised that no public announcement was made of the hearings until they were concluded. Those who appeared, it is inferred, did so by invitation:

Mr. Donald C. Beelar, Chairman, Administrative Law Section, American Bar Association, Washington, D. C.; Mr. Valentine B. Deale, Chairman, Administrative Law Section, Bar Association of the District of Columbia; Mr. J. Smith Henley, Director, Office of Administrative Procedure, Department of Justice; Mr. John H. Mitchell, Counsel, Government Information Subcommittee of the Government Operations Committee; The Honorable E. Barrett Prettyman, United States Court of Appeals, for the District of Columbia Circuit; and Mr. F. Trowbridge vom Baur, Chairman, Administrative Law Section, Federal Bar Association, accompanied by George M. Coburn.

Here are named those who are identified with the legislative programs of the American Bar Association which Mr. Kintner has described as an effort to "dismember and judicialize the administrative process.' (Copies of the report may be obtained from the subcommittee.) In the foreword of the report, it is stated:

As part of these duties, the committee, in November 1956, prepared a comprehensive questionnaire on administrative organization, procedure and practice, and asked 41 departments and agencies exercising administrative powers to describe in detail their procedures in rulemaking, adjudication, and related functions.

"Through the medium of these hearings and through careful evaluation of the 2,094 pages of responses to the committee's questionnaire by the 41 executive departments and independent agencies, we will study major current problems in administrative organization, procedure and practice."

In the event of future hearings, the Association of Interstate Commerce Commission Practitioners has been assured that it will have opportunity to be heard.

ROLAND BAY-RATE SPECIALIST FOR TRANSPORT SURVEY IN THAILAND

Mr. Roland W. Bay, who was chairman of the Board of Suspension, Interstate Commerce Commission, until May this year, has accepted a position with a transport engineering firm. Mr. Bay is on leave from the Commission, after 22 years' service. He will serve as rate specialist in a transportation survey being conducted in Thailand by Transportation Consultants, Inc., Washington, D. C. The survey includes operations in that country by air, water, highway and rail. Mr. Bay left Washington on June 19 for Bangkok, Thailand.

SECRETARY OF COMMERCE TO EXERCISE DIRECTION OVER ST. LAWRENCE SEAWAY DEVELOPMENT CORPORATION

The Secretary of Commerce was assigned authority to exercise direction and jurisdiction over the St. Lawrence Seaway Development Corporation on June 23, 1958, by President Eisenhower's Executive Order 10771, amending Executive Order 10534, dated June 10, 1954. The Secretary of Defense previously exercised this authority over the Seaway corporation.

LIFE'S RECORDS CLOSED

BY E. H. DEGROOT, JR., Chairman,
Committee on Memorials

Randolph P. Bell, 668 Martense Avenue, Teaneck, New Jersey. Farnham P. Griffiths, 1500 Balfour Building, San Francisco, California. (6-30-58).

Richard T. Wilson, Jr., General Attorney, Chesapeake & Ohio Railway, 1500 First National Bank Building, Richmond, Virginia. (1-4-58).

Voluntary Improvement of Administrative
Processes in Lieu of Statutory Changes

Mr. Kintner

BY THE HONORABLE EARL W. KINTNER

General Counsel, Federal Trade Commission

*

It is a pleasure to be here this afternoon to participate in the 29th annual meeting of the Association of Interstate Commerce Commission Practitioners. I consider the privilege all the greater because of participation in your proceedings by two of my valued friends of long standing, Commissioners Robert W. Minor and Abe McGregor Goff, whom I regard as among the most able and fair-minded officials ever appointed to the independent regulatory agencies.

Looking at this very capable group of people, I must confess to some degree of envy of my administrative brethren at the Interstate Commerce Commission, envy by reason of the fact that they have such a splendid group to participate in fighting their legislative battles for and with them. Over at the Federal Trade Commission, we lack an organized group such as this and are consequently forced to "go it alone" in legislative and appropriation matters where a group such as this one might be and, according to rumors I have heard, has been very effective. I suspect, too, that this association also may be the I. C. C.'s most severe critic.

Looking at the title selected for my address today, "Voluntary Improvement of Administrative Processes in Lieu of Statutory Changes," I am inclined to strike the word "voluntary."

My reasons are as follows: If improvement in administrative process is necessary and can be supplied from within, it is anything but voluntary; if improvement is possible and necessary, we should look upon it as compulsory from within rather than voluntary. We all have a continuing obligation to make all possible improvements in the administrative process.

The statutory changes which have been proposed are many indeed. The major sources of these legislative proposals have been the second Hoover Commission and its Task Force and the American Bar Association.

While the changes for the most part have been described as procedural, many of them would make substantive inroads upon the functioning, the well-being and the effectiveness of the administrative process.

* Remarks before the 29th Annual Meeting. Association of Interstate Commerce Commission Practitioners, Hotel Mayflower, Washington, D. C., May 9, 1958. The views expressed are those of the speaker and do not necessarily represent the official views of the Federal Trade Commission.