ambiguity which the language of section 11 creates in such a situation, for it vested the power of appointment in the agencies and the responsibility for increases in compensation in the Civil Service Commission. Nevertheless, some basis for making a judgment as to the intent of Congress does exist. We know that the Congress chose to preserve the agency's power to appoint hearing examiners to discharge a quasi-judicial function "in order to secure personnel of the requisite qualifications." It seems quite unlikely that the same Congress intended to deprive the agency of the power to designate a Chief Hearing Examiner to discharge the agency's vital responsibility for supervising the efficiency of operation of its system of administrative adjudication. Indeed, in these circumstances the increase in compensation appears to be almost an incidental factor. In this connection I note that, because until now no increase in compensation was involved in the designation of Chief Hearing Examiners, the authority of the agency to make the designation apparently went unchallenged. The challenge now arises because administrative arrangements have been made to accompany such a designation with an increase in compensation. In the future those arrangements might again be modified to preclude such an increase. It would seem wholly anomalous to shift responsibility for the designation between the agency and the Civil Service Commission depending upon the arrangement relating to compensation in effect at a given time. Moreover, it is significant that the Attorney General's Committee on Administrative Procedure, which would have placed the power to appoint hearing examiners in a separate body, recommended that the agency select its Chief Hearing Examiner. See Final Report of the Attorney General's Committee on Administrative Procedure (1941), pp. 49, 196. The bill drafted by the committee accordingly provided for the designation "by the agency" of a "chief hearing commissioner" who would receive additional annual compensation of $1,000, and who would have specific administrative duties in addition to his powers as a hearing commissioner. The minority members of the 'Attorney General's Committee also recommended that the agency designate a Chief Hearing Commissioner, but eliminated the special provisions relating

H.R. 184 (cited supra note 6) secs. 302, 305.

244-574 O 78 - 21

to that officer's compensation and duties "as unnecessary." Final Report of the Attorney General's Committee on Administrative Procedure, p. 239.

Nothing in the text or legislative history of the Administrative Procedure Act suggests that Congress intended to reject this unanimous recommendation of the Attorney General's Committee that the agencies should have the power to select their Chief Hearing Examiners. On the contrary, the approach which Congress adopted in the Administrative Procedure Act went considerably farther to preserve the agencies' powers of appointment than had the Attorney General's Committee. The reasonable inference from Congress' failure to deal specifically with the selection of Chief Hearing Examiners is that it assumed its provision for appointment of hearing examiners by the agencies was enough a fortiori to give the agencies power to select their Chief Hearing Examiners.

On its face, the language of section 11 empowering the Civil Service Commission to prescribe the "compensation" of hearing examiners does not purport to transfer from the agencies to the Civil Service Commission the power to select a principal administrative official. I find nothing in the legislative history of the act which would justify attributing such an intention to Congress. Indeed, such evidence as is available looks in the opposite direction.

A further consideration leads to the same result. The justification for the increased compensation to these Chief Hearing Examiners evidently rests, not on their quasijudicial responsibilities, but on their substantial administrative and managerial responsibilities.10 Section 11 explicitly recognizes that a hearing examiner may discharge other functions besides those of hearing examiner, for it provides that examiners "shall perform no duties inconsistent with their duties and responsibilities as examiners." On their face, the administrative and management duties of a Chief Hearing Examiner are not inconsistent with the duties and responsi

10 For example, the Chairman of the Federal Power Commission states: "The duties of our Chief Hearing Examiner position at grade GS-17 are both administrative and adjudicatory in nature. The regular hearing examiner positions in this agency are classifiable at grade GS-16, and have only adjudicatory responsibilities. The extra grade for the Chief Hearing Examiner must be based on the duties that are other than adjudicatory."

bilities of a hearing examiner. There are obvious reasons why the agencies might well consider that these administrative and management duties can best be performed by one who is himself experienced and respected in the profession of hearing examiner and who continues to exercise that profession to the extent that his other duties permit. Indeed, the normal practice until now has been to vest the administrative and management functions of Chief Hearing Examiner in persons who also possess and exercise the adjudicatory powers of a hearing examiner. Clearly it is for the agencies, not the Civil Service Commission, to determine what additional duties to place in a hearing examiner (so long as they are not inconsistent with the duties and responsibilities of a hearing examiner) and to select the individual who is to discharge those additional duties. I do not think the fact that those duties are of such magnitude and permanence as to justify a higher grade of compensation provides any basis for the exercise of this power of selection by the Commission.

The principal reason underlying the provision of section 11 conferring on the Civil Service Commission the power over compensation of hearing examiners was thus stated in the 1951 Attorney General's opinion: "If salaries and promotions are subject to agency control, there is always danger that a subtle influence will be exerted upon the examiners to decide in accordance with agency wishes. The committee reports demonstrate the intention of the Congress to minimize this hazard." (41 Op. A. G. at 78.) It is, of course, possible that the carrot of an appointment to a Chief Hearing Examiner position could be used to exert a subtle influence on the examiner to decide as the agency wishes. However, the same possibilities already exist with regard to appointments to membership in the agency or to other highly paid positions in the Federal Government. Congress recognized that such possibilities can never be wholly eliminated; it sought merely to minimize them. In any event I find no evidence that Congress, in adopting "the course which will suffice without being excessive" intended to push its efforts to eliminate this "subtle influence" to such a point as would deprive the agencies of the necessary power to select their own chief administrators.

**

While the question is not entirely free from doubt, I conclude on balance that the agencies have, and the Civil Service Commission does not have, the power to appoint an incumbent hearing examiner to the position of Chief Hearing Examiner. The question submitted is therefore answered in the negative.

Respectfully yours,

NICHOLAS DEB. KATZENBACH,

Acting Attorney General.

CARRIAGE IN UNITED STATES VESSELS OF EXPORTS FINANCED BY A GOVERNMENT AGENCY

Public Resolution No. 17 of March 26, 1934 (48 Stat. 500, 15 U.S.C. 616a), expressing the "sense of Congress" that Government agencies making loans to finance exports "shall" require the exports to be carried exclusively in United States vessels, is not mandatory and does not preclude the Maritime Administration from permitting 50 percent of the cargoes to be carried in vessels of the recipient country if the recipient country adopts similarly nondiscriminatory shipping practices. 37 Op. A.G. 546 reaffirmed.

THE SECRETARY OF COMMERCE.

APRIL 26, 1965.

MY DEAR MR. SECRETARY: Your predecessor, Secretary Luther H. Hodges, requested in a letter of December 7, 1964, that I reexamine Attorney General Homer Cummings' opinion dated June 5, 1934 (37 Op. A.G. 546), interpreting Public Resolution 17 of March 26, 1934 c. 90, 48 Stat. 500, 15 U.S.C. 616a, and advise him whether it is reaffirmed. Public Resolution 17 resolved that "it is the sense of Congress that in any loans made by *** *** instrumentality of the Government to foster the exporting of agricultural or other products, provision shall be made that such products shall be carried exclusively in vessels of the United States, unless *** vessels of the United States are not available in sufficient numbers, or in sufficient tonnage capacity, or on necessary sailing schedule, or at reasonable rates."

any

Shortly after the approval of Public Resolution 17, President Franklin D. Roosevelt requested Attorney General Cummings' opinion "as to what obligations are imposed by Public Resolution No. 17 of March 26, 1934, upon agencies of the Government engaged in making loans to finance the exporting of agricultural and other products." The Attorney General concluded that, as an expression only of "the sense of Congress," the resolution was not intended to impose a mandatory requirement on the executive branch.