OPINIONS PUBLISHED OUT OF ORDER1

DELEGATION OF CERTAIN POWERS AND DUTIES TO THE ASSISTANT SECRETARIES OF COMMERCE

The Secretary of Commerce is just as much chargeable with responsibility in connection with a duty imposed upon his Department as in connection with a duty imposed upon him. The Congress knows that the Secretary cannot personally perform all such duties and its enactments must be read in the light of such knowledge, with intention, nevertheless, that the duties are to be performed.

The Secretary may properly delegate to the Assistant Secretaries of Commerce all or any part of the duties and authority vested in him or in his Department by the statutes and Executive order mentioned, in accordance with the principles and subject to the practical considerations stated in the opinion.

The SECRETARY OF COMMERCE.

OCTOBER 14, 1933.

SIR: I have the honor to comply with your request of September 21 for my opinion concerning your authority to delegate to the Assistant Secretaries of Commerce the powers and duties imposed upon you or upon your Department by the statutory provisions indicated in the following paragraphs of your letter.

"Acts of June 19, 1886, as amended (U. S. C., title 46, sec. 320); June 9, 1910, as amended (U. S. C., title 46, sec. 518); R. S. 5294, as amended (U. S. C., title 18, sec. 642); act of June 26, 1884, U. S. C., title 18, sec. 643); act of March 3, 1897 (U. S. C., title 33, sec. 364); act of June 7, 1918 (U. S. C., title 46, sec. 288); R. S. 4146, as amended (U. S. C., title 46, sec. 23); and act of January 16, 1895, as amended (U. S. C., title 46, sec. 108); authorizing the Secretary of Commerce to remit or mitigate fines, penalties, or forfeitures, provided for by laws relating to vessels.

"Act of June 14, 1906 (U. S. C., title 48, secs. 243-244); act of June 26, 1906 (U. S. C., title 48, secs, 230-242); and

1 Released too late for inclusion in regular order.

the act of June 6, 1924 (U. S. C., title 48, secs, 221-228); authorizing the Secretary of Commerce to set apart and reserve fishing areas in the waters of Alaska, establish closed seasons therein, fix size of fishing apparatus, limit catch of fish, and make rules and regulations to carry into effect the provisions of such laws. * * *

"Sections 14 to 30 of the Shipping Act of 1916, as amended (U. S. C., title 46, secs. 813-831), regarding rebates, fighting ships, retaliations, unfair contracts, agreements of common carriers, prescribing rates, fares, classifications, etc., investigations, discriminations by foreign goods, subpenaing witnesses, etc., and the Intercoastal Shipping Act of 1933, amending the aforesaid Shipping Act of 1916 (47 Stat. 1425) providing that the Shipping Board shall prescribe, by regulations, the form and manner in which schedules of rates, fares, and charges required by the act shall be published, and authorizing the Board to reject any schedule not in consonance with the regulations, etc.

"Section 2 (c) of the Merchant Marine Act of 1920 (title 46, sec. 862), authorizing the settlement of claims; also section 35 of the same act (U. S. C., title 46, sec. 886), providing that the Board may delegate authority under the act to the Emergency Fleet Corporation.

"Section 201 of the Merchant Marine Act of 1928 (U. S. C., title 46, sec. 891 (a)), providing that the Board shall not sell any vessel or any line of vessels except when in its judgment the building up and maintenance of an adequate merchant marine can be best served thereby, and then only upon the affirmative vote of five members of the Board duly recorded."

Some of these provisions must be read in connection with the act of February 14, 1903 (U. S. C., title 5, sec. 600) transferring to and vesting in the Secretary of Commerce certain duties theretofore performed by the Secretary of the Treasury. Others are affected by the Executive order of June 10, 1933, which, among other things, abolished the United States Shipping Board and transferred its functions to the Department of Commerce.

The statutes, generally, authorize and require "the Secretary of Commerce" to do the things therein enumerated,

while the Executive order names merely "the Department of Commerce," but I do not think that either is a controlling circumstance. The Secretary is just as much chargeable with responsibility in connection with a duty conferred upon the Department of Commerce as in connection with a duty conferred upon the Secretary of Commerce.

It is, however, self-evident that he cannot personally perform all such duties. Congress, of course, knows this and its enactments must be read in the light of such knowledge, with intention, nevertheless, that the duties are to be performed.

That some duties may be delegated is too well established to require citation of authority. The provision of the statute (act of February 14, 1903, c. 552, 32 Stat. 825, 826, as amended; U. S. C., title 5, sec. 592), concerning one Assistant Secretary, that, "he shall perform such duties as shall be prescribed by the Secretary," and the provision of the Executive order of June 10, 1933, that the other Assistant Secretary, "shall perform such functions as the Secretary of Commerce may designate," impose no limitation in the matter of the duties to be assigned; and, regarding the nature of the offices, the assumption is required that the assignments will include duties of a high character. Considering this and considering that no language in any one of the various statutes to which you have invited my attention specifically forbids the assignment to an Assistant Secretary of the duties therein imposed upon you or upon your Department, it might be supposed that all or any part of such duties could be included in the assignments of the Assistant Secretaries as a matter of course. The difficulty is that no authority to which my attention has been directed has failed to recognize some limitation upon this power of delegation even apart from express statutory limitations.

Attorney General Sargent, in an opinion of December 12, 1925 (35 Op. 15, 19), pointed out the futility of attempting to apply to the executive departments the common principle that “the performance of a power requiring the exercise of judgment or discretion may not be delegated to another, unless the legislative authority conferring power has authorized the delegation"; and he concluded that the

general statutes relating to the Treasury Department evidenced congressional intent to allow the Secretary of the Treasury "to delegate * ** any duties except those which, under other statutes, require in their performance the personal judgment of the Secretary himself or of some other official."

He stated, however, the following further conclusions, which are particularly pertinent in the present connection: "The making of regulations * * * designed to have the force of law, to be binding upon the public, and to be recognized and enforced by the courts is, I think, a duty which the statutes place upon the Secretary personally. Wherever, therefore, in the provisions of law mentioned in your letter, and to which I have hereinbefore referred, a power and duty to make regulations of this kind is conferred or imposed upon the Secretary I think those regulations should have his personal approval before they are promulgated. * *

*

"So, too, I think the provisions of sections 616, 617, and 618 of the Tariff Act of September 21, 1922, relating to the compromise of claims and the abatement of fines, penalties, and forfeitures require the personal action of the Secretary."

Section 618 of the Tariff Act of September 21, 1922 (42 Stat. 858, 987), thus mentioned, provided as follows:

"Whenever any person interested in any vessel, vehicle, merchandise, or baggage seized under the provisions of this act, or who has incurred, or is alleged to have incurred, any fine or penalty thereunder, files with the Secretary of the Treasury if under the customs laws, and with the Secretary of Commerce if under the navigation laws, before the sale of such vessel, vehicle, merchandise, or baggage a petition for the remission or mitigation of such fine, penalty, or forfeiture, the Secretary of the Treasury, or the Secretary of Commerce, if he finds that such fine, penalty, or forfeiture was incurred without willful negligence or without any intention on the part of the petitioner to defraud the revenue or to violate the law, or finds the existence of such mitigating circumstances as to justify the remission or mitigation of such fine, penalty, or forfeiture,

may remit or mitigate the same upon such terms and conditions as he deems reasonable and just, or order discontinuance of any prosecution relating thereto. In order to enable him to ascertain the facts, the Secretary of the Treasury may issue a commission to any special agent, collector, member of the Board of United States General Appraisers, or United States commissioner, to take testimony upon such petition: Provided, That nothing in this section shall be construed to deprive any person of an award of compensation made before the filing of such petition." [Italics supplied.]

If this section required the personal action of the Secretary of the Treasury in matters arising under the customs laws, it also required the personal action of the Secretary of Commerce in matters arising under the navigation laws; and there is nothing about the language of the section which would distinguish it in this respect from the other statutes relating to remission or mitigation of fines, penalties, and forfeitures which are cited in your letter. Similarly, if the Secretary of the Treasury must personally approve regulations of the kind referred to in the opinion, there is no apparent basis for a different conclusion in connection with regulations of like nature required to be made by the Secretary of Commerce.

A source of perplexity, however, when attempting to apply past precedents in matters such as this, arises from the fact that the words employed ("delegate," "personal action," "approve," etc.), being susceptible of varying shades of meaning, are not always accurately indicative of the author's precise intention.

Perhaps we may assume that when Congress conferred upon the Secretary of Commerce the authority to remit or mitigate fines, penalties, and forfeitures it contemplated that he would take some "personal action" in the matter and did not contemplate that he would merely turn the whole task over to a subordinate and give it no further thought. However, as between such bald and unrestricted "delegation" and personally examining, weighing, and disposing of each and every application-an impossibility in