REPORT OF THE COMMITTEE ON INTERSTATE COMMERCE ACTAuthor(s): Byron M. GraySource: Administrative Law Bulletin, Vol. 10 (SUMMER, 1958), pp. 163-165Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/40712740 .

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REPORT OF THE COMMITTEE ON INTERSTATE COMMERCE ACT

This Committee held two meetings during the year; both were held in Washington, D. C. Below are shown the subjects given consideration by this Committee and the views of the Committee in respect of each.

The Administrative Court Bills; H.R. 8751 and S. 2292

The only change affecting the I.C.C. proposed by these bills is that the Administrative Court, rather than the Commission, be given jurisdiction to enforce compliance with certain sections (particularly section 7) of the Clayton Act. The Commission would still initiate enforcement proceedings. The Committee has no recommendation to make on these bills.

Bill to Amend Sections 2322 and 2323 of the Judicial Code, Title 28, United States Code

We have given consideration to H.R. 6085 and S. 1721, the purpose of which is to make the Interstate Commerce Commission, rather than the United States, the defendant in proceedings to set aside or suspend orders of the Interstate Commerce Commission.

We are in accord with the purpose but we think that the bill should be amended to provide that in Section 2323 of Title 28 of the United States Code the parties to the proceeding should be notified of any such action. This Section now allows all such parties to intervene. Notice of the filing of such an action would help the right to intervene but would not be as burdensome as requiring service on all parties. This is particularly important in proceedings where the parties before the Commission are widely separated.

The proposed bill also provides that in such actions, the attor- ney general may appear when the United States or any department or agency thereof has a legal interest adversely affected. While we agree that the Commission should be the defendant, we see no reason to limit the participation of the Department of Justice if they so desire.

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164 SECTION OF ADMINISTRATIVE LAW

The Proposed Code of Administrative Procedure The proposed Code of Administrative Procedure, which this

Association has endorsed, if enacted, would change to a con- siderable extent administrative procedures established by the Interstate Commerce Act. However, until specific legislation is introduced in Congress to make effective the Association's pro- posed code, this committee cannot determine precisely which sections of the Interstate Commerce Act will be affected. The matter is being closely watched and at the appropriate time- namely, after the legislation is introduced- a report consistent with the responsibilities of this committee will be presented to the Section.

Federal Administration Practice Reorganization Act of 1957

We have examined H.R. 3349, H.R. 3350, H.R. 7006, and S. 932, all of which are identical and are referred to as proposed "Federal Administrative Practice Reorganization Act of 1957." These bills are long and cover five different subjects:

TITLE I- Office of Federal Administrative Practice TITLE II- Hearing Commissioners TITLE Ill-Legal Career Services TITLE IV- Admission to and Control of Practice TITLE V- General Provisions

A study of these bills indicates that only one part is in conflict with the Interstate Commerce Act which is within the purview of this Committee. Section 211 (b) of the proposed bill reads:

"(b) Except where otherwise provided by statute or by regula- tions of the Director, the hearing commissioner who presides at a proceeding shall make and file an initial decision which within the time provided shall become the decision of the agency in the absence of an appeal before the agency upon its motion or upon the filing of exception by a party."

First, we call attention to the fact that this section makes a sub- stantive change in the law as laid down in Section 8 of the Ad- ministrative Procedure Act. In our opinion, no substantive change in the procedure of the Interstate Commerce Commission should be made in a bill dealing with the qualifications, tenure, com- pensation and assignments of hearing commissioners. If such a matter is to be proposed, it should be included in a proposed

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INTERSTATE COMMERCE ACT 165

administrative procedure code intended to be a substitute for the Administrative Procedure Act.

Section 17(3) of the Interstate Commerce Act reads in part: "The Commission shall conduct its proceedings under any pro-

vision of law in such manner as will best conduce to the proper dispatch of business and to the ends of justice. . . . The Com- mission may, from time to time, make or amend such general rules or orders as may be requisite for the order and regulation of pro- ceedings before it, or before any division, individual Commis- sioner, or board, including forms of notices and the service thereof, which shall conform, as nearly as may be, to those in use in the courts of the United States.

Under this power the Commission has set up procedures in order to expedite the handling of cases. The examiners employed by the Commission render proposed or recommended reports in some cases, but not in all. The Administrative Procedure Act recognizes this practice and presently allows the omission when "the agency finds upon the record that due and timely execution of its functions imperatively and unavoidably so requires." The omission of such reports has been extensively used where speed is necessary.

Sections 15(7), 218(c), 307(i), and 406(e) of the Interstate Com- merce Act allows only seven months for the completion of the handling of a suspension case. In the latest volume of rate de- cisions, Volume 301, the Commission decided 89 investigation and suspension cases and in 72 of them, the initial report was omitted in order to complete the handling of these cases before the ex- piration of the seven month period.

No case of miscarriage of justice has been brought to the attention of this Committee as a result of such omissions and in the absence of any such evidence, we feel that no change should be made in the present procedure, particularly one that would delay the disposition of cases. The prevention of the omission of initial reports in such cases would only tend to increase the work of the Commission and its staff and to further delay the disposi- tion of many cases which can be dealt with by a Division with no harm to any parties concerned.

Byron M. Gray, Chairman

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