22. Commission should go on record as favoring more vigorous restriction of testimony and cross-examination by hearing examiners (43).

23. Hearing examiners should be required to submit initial decision within a specified time with allowance for extension in exceptional cases (43).

E. Federal Trade Commission (Proposed Remedies)

1. Review board between the hearing examiner and the Commission would increase delay (31).

2. Careful scrutiny of appointments of agency members, hearing examiners, and agency attorneys (31).

3. Comparative statistics must consider complexity to be meaningful but mere publication of statistics will not reduce delay (31, 32, 36). 4. Fixing deadlines for agency action would result in ill-considered action or unwarranted staff increases (31).

5. Codify the better decisions on exhaustion of remedies so as to reduce court interference (31).

6. Permit settlements at prehearing conferences or during the hearings if new relevant facts become available (32).

7. Granting extensions of time to file initial decisions should be a function of the chief hearing examiner rather than the Commission (32).

8. More use of posthearing conferences to settle the order to be issued by the examiner (32, 36)..

9. Allowing the FTC to issue temporary restraining orders pending final determination would stimulate the parties to work faster and further protect the public interest (32).

10. Collecting extensive industry wide facts may help to expedite some cases if the facts are detailed and updated but the work involved is prohibitive (32).

11. Defendants should have greater opportunity for visitation discovery, inspection, and interrogation (42, 22).

12. Develop a greater flow of capable ambitious young attorneys into the staffs of the administrative agencies and assign them to sufficiently challenging tasks (41).

13. Different deadlines for initial decisions could be established for different kinds of cases (36, 34, 31).

14. Perhaps there should be a week or two interval between prosecution and defense evidence so that prehearing discovery would not have to be so extensive (34).

15. There is a need for training of and exchange of ideas between hearing examiners and agencies particularly with regard to delay reduction (34).

16. Oversight by the administrative conference (34, 22).

17. More staff and funds (21).

18. By their own example in handling their own work, agency heads can set the right standards for subordinates to follow (22).

19. Appoint special officers in each agency whose sole function is to spot, find the causes of, and remedy all unnecessary delays in the transaction of agency business (22).

20. Agency heads should make certain that resources and manpower are not dissipated in relatively trivial matters (22).

21. Greater experimentation in the use of nonjudicial methods for the formulation of rules (22).

22. Cross examination in dealing with matters of expert opinion or policy judgments could be restricted (22).

F. Interstate Commerce Commission (Proposed Remedies)

1. Increased staff of trained investigators (11, 22).

2. Program of careful recruitment of energetic and capable attorneys for placement on the hearing examiner register (11, 22).

3. Filing fees to discourage vexatious, frivolous, or unsupported applications possibly based on ability to pay (11, 52).

4. Use of more rulemaking to replace numerous individual adjudications (11).

5. The application of sophisticated management science techniques including automatic data retrieval and processing (11, 26).

6. Publication of a narrative description of the various procedures used by each agency to reduce delay along with some indication as to their effectiveness (11).

7. Vest the ICC with more discretion to waive the requirements of the Administrative Procedure Act in minor motor carrier application cases (11, 23, 24).

8. Allowing attorneys who are not hearing examiners to decide some contested cases (22, 23).

9. General staff increase (11, 22, 41).

10. Opposed to data designed to compare agencies (22).

11. Discretionary appeals to review boards and decisions of the Commission (22).

12. Motor carrier applications should be accompanied by affidavits from shippers indicating that additional motor carriers are needed (23).

13. Motor carrier applications should contain more detail with regard to what is applied for (23, 33).

14. Applicants will be required to advise the ICC within 30 days after the protest period (or within a week after notice of hearing) that they are ready to go to hearing or else the application will be dismissed (23, 32).

15. Protestants seeking an oral hearing must certify they will appear and present evidence (23).

16. If an applicant (or protestant) fails to appear for a hearing without giving adequate warning, assess him for costs and/or dismiss his application with no right to refile for 6 months (32).

17. Have parties present prepare oral or written statements rather than just unplanned evidence (32, 52).

18. Shorter itineraries so that hearing examiners can more quickly begin writing initial decisions (32).

19. Where a hearing examiner becomes overburdened, shift the writing of some of his initial decisions to other examiners (32).

20. Have hearing examiners issue preliminary orders immediately after their itinerary to be followed later by justifying opinions (32). 21. Hearing examiners should be able to issue a summary dismissal where party with burden of proof fails to establish prima facie case (32).

22. Make more use of written direct testimony even in contested cases (32, 51).

23. Hearing examiners should not be assigned to review work or to preparing final decisions since nonexaminer attorneys can do that (32, 51, 52).

24. Have commission draft headnotes with its opinions (32).

25. If exceptions are filed to the decision of a hearing examiner, review board, or division of the commission, reconsideration should be discretionary (32).

26. More use of pretrial conferences in large and complicated cases (51, 52).

27. Examiners should be encouraged to write shorter reports but not so short that the case gets remanded by the courts for a more complete report or so short that the writer of final decision is burdened (51, 52).

28. More secretarial assistance for examiners including trained clerks to prepare items relevant to their itineraries (51, 52).

29. Have short-form reports by hearing examiners in simplified proceedings (51, 52).

30. Choose a chairman on the basis of administrative ability rather than by rotation and have him serve for more than the present 1-year term (25).

31. Less granting of extensions in the filing of pleadings, proposed findings, and briefs (26).

G. National Labor Relations Board (Proposed Remedies)

1. Delegate greater finality to trial examiners decisions in unfair labor practice cases (11, 33).

2. Do not allow S. 1336 to eliminate the exemption of representation cases from the formal hearing procedures established by section. 5 of the Administrative Procedure Act (11).

3. Removal of present restrictions in the NLRA on the making of recommendations by hearing officers in order to expedite the processing of representation cases (11).

4. Eliminate the APA requirement that the parties must consent in order to have a pretrial conference to settle or simplify issues (31). 5. Examiners should be permitted to write decisions in cases they have heard before hearing new cases to a greater extent than already exists (31, 34).

6. Inadvisable to provide time limits by legislation or agency rule for hearings, proposed findings, initial decisions, briefs, or final decisions instead of leaving these matters to the discretion of the hearing examiner or final decisionmaker (32).

7. Automatic judicial enforcement of board orders after 45 days, absent filing of a court appeal during this period (33).

8. Provide for a pretrial procedure before the hearing examiner similar to that prescribed in rule 16 of the Federal Rules of Civil Procedure (33).

9. Encourage and strengthen the Board's use of the discretionary injunction under the NLRA (33).

10. Change the title of "hearing examiner" to "administrative judge" and thereby lend greater dignity to the office with regard to the conducting of hearings (33, 36).

11. More thorough investigations might result in shorter and fewer hearings (34).

12. More skillful attempts to encourage settlements (34). 13. Need for additional trial examiner personnel (41).

H. Securities and Exchange Commission (Proposed Remedies) 1. Proposed findings and briefs will be required to be expressed more precisely and supported with references to evidence (11).

2. More careful consideration should be given to informal settlement before the Commission institutes formal proceedings (11).

3. Commission should advise parties of their right to make settlement offers and to stipulate the complete record (11).

4. Applicants and protestants in contested cases should be required to file written testimony and motions to strike in advance of the hearing so that the hearing can begin with cross examination (11).

5. Hearing examiners should be instructed to narrow the issues through prehearing conferences and stipulations more so than is presently done (11).

6. Where a case lacks issues of fact but has issues of law and policy, the examiner should encourage a waiver of his initial decision (11).

7. The Commission is considering the idea of requiring professional employees to give a moral committment to stay 3 years (11).

8. Continuation of the subcommittee statistics on agency time consumption (11).

9. General legislation to reduce delay is not needed or desirable as contrasted to individual agency rulemaking in light of its own problems (11).

10. Discovery procedures similar to those used in Federal civil procedure (31).

I. Miscellaneous Adjudicative Agencies (Proposed Remedies) 1. Hearing examiners decisions should be adopted as final unless appealed (A).

2. Provide a compendium of delay reduction procedures used by various agencies (F, L).

3. Increase staff although the increased staff might not always be fully occupied with work (H, I).

RESPONSES FROM THOSE ASSOCIATED WITH THE CIVIL AERONAUTICS BOARD

11. CHARLES S. MURPHY, CHAIRMAN

I have not been at the CAB long enough yet to have a valid personal judgment as to the proper answers for the questions posed in your questionnaire. I could, of course, have the Board's staff prepare answers for me. However, this would seem to me to imply a degree of acquiescence on my part in the general form of the present procedures which does not in fact exist.

It appears to me that my comments might be more meaningful, and certainly more forthright, if I gave you some general impressions I have gained thus far in my work here. First, let me say that the CAB and its staff, over the years, have given major attention to improving techniques in the administrative process and have made major advances in the field. Nevertheless, delays do occur and proceedings are frequently prolonged. I believe this is due to the basic nature of the administrative process prescribed by the Congress for Board proceedings. Mandatory procedural safeguards lend themselves to use by parties whose interests are served by delay. In this sense, they tend to favor the "haves" as opposed to the "have-nots." This at least raises the question as to whether excessive safeguards do not in actual practice deprive more people of more rights than they protect. I am trying to get the CAB and its staff to take a fresh look at this whole field. It is of such complexity that it cannot adequately be done quickly, and of such major importance that it must be done responsibly. I am simply not in a position yet to say whether we can find ways to bring about the requisite improvement under existing statutes, or whether we will find it necessary to recommend legislation.

21. WHITNEY GILLILLAND, BOARD MEMBER

In this agency, as in many others, delays in disposition of workload are more likely to be attributable to the complexity of problems than to inadequacies in procedures. The procedures at the Civil Aeronautics Board are, in my judgment, good ones and call for no significant revision. The most important element in disposition of workload is the will to accomplish, i.e., morale. It is high here and the dynamics of the air transportation industry are so great that zest for the task is inescapable.

I do, however, have one criticism which is directed to governmental agencies generally. It is my view that not nearly enough attention is given to the desirability of conciseness in written statement. On the other hand it has seemed to me that sometimes members of an agency staff undertake to impress and influence their chiefs, and the chiefs to account to the outside world, by sheer quantity.

It is true that, when performed, concise statement is not always a timesaver to the writers, for it may be difficult. But it is a great

63-734-66- -3