Conduct of Disciplinary Hearings by Coast Guard Commissioned Officers. Hearings ... Subcommittee No.3 on H.R. 2966 and S. 1077

cumstances which I have outlined, however, the Budget Bureau decided that, in the interests of efficiency and economy in Government, the estimate should be eliminated and an amendment to the Administrative Procedure Act sought. We fully agree. At the same time I want to say that we recognized that there are arguments on both sides. We knew you gentlemen of the Judiciary Committee had worked hard and given a great deal of thought to the Administrative Procedure Act and we frankly therefore did not want to be in the position of making the first move to get an exemption from that act. However, the Bureau of the Budget struck out that appropriation estimate on the ground of economy and they inserted legislative language which would have granted this exemption.

When we went before the House Appropriations Committee we presented this same issue.

Mr. KEATING. There was no item in the budget as submitted for that?

Mr. SPINGARN. No, sir. As it went from the Treasury to the Budget, the item was included. The Budget struck out the item on the ground of economy. When it went to the committee there was still this legislative language-this exemption. I told the House Appropriations Subcommittee at that time, and I am quoting from pages 664 and 665 of those hearings:

I want to say that the House Judiciary Committee and the Senate Judiciary Committee did a lot of work on the Administrative Procedure Act and the American Bar Association and the lawyers of the country are very much interested in that act.

Some of you gentlemen also may have some personal interest in it. We have worked very hard to comply with the spirit and letter of the act. I can vouch for that myself.

This is a case where economy and the Administrative Procedure Act locked horns. You have to take one or the other, but I just want to call to your attention that this committee may want to take the matter up with the House Judiciary Committee and discuss the whole thing. We do not want to be in the position of creeping in through the back door, as it were, with an exemption from the Administrative Procedure Act. We were in the position where we had to make a decision while the Congress was away, and there was no opportunity to discuss this with the legislative committee that had jurisdiction over the act.

Well, the House Appropriations Committee considered that matter and in their committee report, which is House Committee Report No. 103, Eightieth Congress, they give us the following indication, and I am quoting from that report, page 17:

A proposal of new language for 1948 was incorporated in the Budget estimates designed to amend section 7 (a) of the Administrative Procedure Act of 1946. The effect of the language would have been to permit commissioned officers of the Coast Guard, rather than civilians, to conduct hearings connected with the operations of the merchant marine. It was represented to the committee that if this language were approved, it would circumvent a future expenditure of upward of $200,000 which otherwise would eventuate, if amendment of existing law does not take place prior to June 11 of this year. The committee has deleted the proposed language from the bill solely because of the fact that it represents a chanoge in existing legislation and hence, is without the proper purview of the Appropriation Committtee. In making the elimination, however, it is to be understood that the committee neither approves nor disapproves the legislative proposal involved in the proposed change. This is an important matter, and it is hoped that the Treasury Department will make prompt representation to the appropriate legislative committee of the House, in order that due consideration can be given to the merits of the proposal prior to the date (June 11, 1948) (this date should read "June 11, 1947") when the provisions of the Administrative Procedure Act become applicable to this question.

So, immediately following the date of that report, which was on March 17, we wrote to the chairman of this committee, Mr. Michener, and presented the matter to him with alternative drafts of legislation to take care of he matter if he deemed it appropriate to do so.

He introduced a bill and this hearing is on that bill.

A word about the statute involved. The statute in section 4450 of the Revised Statutes, which is found in section 239 of title 46 of the United States Code. This statute provides for hearings in cases involving charges against licensed and certificated merchant marine personnel. Merchant marine officers are licensed and seamen are certificated. It provides that, where they have been incompetent or negligent in their duties, or disobeyed the laws and regulations applicable to the merchant marine, investigation should be made and, if justified, charges should be preferred against them and hearings held on the charges.

Normally there are about 18,000 of these investigations a year and they go to hearing approximately at the rate of 5,000 a year. That is, about 5,000 hearings a year are actually held.

Mr. KEATING. Now held by the Coast Guard?

Mr. SPINGARN. Yes, sir.

Mr. KEFAUVER. May I ask a question?

Mr. GRAHAM. Yes, sir.

Mr. KEFAUVER. I cannot understand the saving feature if the Coast Guard does the work.

Mr. SPINGARN. That is an important point.

Mr. KEFAUVER. If the Coast Guard does the work you save $281,000, but that seems to be assuming you have extra personnel in the Coast Guard without interfering with your regular line of work.

Mr. SPINGARN. Here is the situation, Mr. Kefauver. At present these functions are carried out through 48 Coast Guard hearing units in the United States, and 11 overseas. In only a very few ports does this represent a majority amount of the time of the Coast Guard officers who carry it on. In some ports, like New York, there are personnel who would be engaged full time or virtually full time in this work, and in the smaller ports it might represent only 10, 20, or 30 percent of the time of the Coast Guard personnel.

However, under the Administrative Procedure Act civilian civil service examiners would carry on this work. The Administrative Procedure Act appears to contemplate this hearing work would be full time work for examiners. In any event this type of civilian personnel would obviously not be suitable for the ordinary work of the Coast Guard.

If Coast Guard commissioned officers carry it out, if it requires 10 percent of their time, the other 90 percent will be available for other work of the Coast Guard, whereas, as we understand the situation, the civilian civil service examiners will be sitting idle a great deal of the time in a great many of the ports where they will be used. We do not think Congress would consider this desirable.

It is not possible to docket these hearings in the usual way because you are confronted with a situation where a vessel comes in and the captain prefers charges against a seaman, or the seaman may have a complaint against an officer. An immediate investigation has to be made and a hearing has to be held very promptly because that ship may turn around within a few hours, or within a day and go out to sea

again, or the crew may disperse on shore, and unless the hearing is held promptly your witnesses will be gone.

Mr. KEATING. Well, now, I had in mind exactly the point that Congressman Kefauver has brought out here. If these officers had 10 or 20 or 30 percent of their time taken up with this work and they were relieved of that, they could devote 10 or 20 or 30 percent of their time to some other activities and thereby reduce the number of personnel, could they not?

Mr. SPINGARN. Well, some saving will result. I mean there would be some transfer of work of commissioned personnel. We think it would be a relatively small percentage of the $281,000 that would be required to have full time civilian civil service examiners.

Mr. KEATING. Have you any estimate?

Mr. SPINGARN. Have you, Captain Richmond?

Captain RICHMOND. No, sir. It is practically impossible. You are comparing officers who have attained permanent status in the Coast Guard. It would be very difficult to show, outside of one or two grades, where you would save in the over-all number of cases, except with one or two officers. The Coast Guard has many different functions for which the officers would be available. In dollars and cents it would be very difficult to estimate savings.

Mr. KEATING. At how many ports outside of New York do you have personnel who are exclusively engaged in this work?

Captain RICHMOND. The three major ports right now are New York, San Francisco, and New Orleans.

Mr. KEATING. Do you have a record of the number?

Captain RICHMOND. We have 29 officers presently engaged in doing nothing but hearing cases.

Mr. KEATING. And then you have an over-all group probably in Washington to supervise their activities?

Captain RICHMOND. At the present time we have not, but we will have under the Administrative Procedure Act to establish such a group. We estimate it will take two or three.

Mr. KEATING. And what will be the approximate total number of that group of people?

Mr. KEFAUVER. 29 officers, plus two or three.
Mr. KEATING. Yes.

Captain RICHMOND. There is one point I want to make on this 29. That is not a complete list because in some ports, at the present time we have not appointed officers as examiners. We originally estimated we would need 43 to cover both domestic and foreign ports. It may be in the near future we will abandon any disciplinary proceedings in foreign ports, which would reduce it from 43 to 31. We would need 31 examiners which would reduce the original estimate.

Now, on your question of the present officers, I can only use an average figure for it. The salaries of those officers would run about $145,000 to $150,000.

Mr. KEFAUVER. I assume you have stenographers and court reporters.

Captain RICHMOND. Yes, but we plan to absorb that cost in some cases. If these examiners are appointed it is going to be mighty difficult to run under the Administrative Procedure Act. You are really setting up a separate corps.

So, immediately following the date of that report, which was on March 17, we wrote to the chairman of this committee, Mr. Michener, and presented the matter to him with alternative drafts of legislation to take care of he matter if he deemed it appropriate to do so. He introduced a bill and this hearing is on that bill.