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AIR COMMERCE ACT-PUBLICATION OF THE CAUSES OF AIRCRAFT ACCIDENTS

The course followed by the Secretary of Commerce in making public the causes of accidents in civil air navigation, with respect both to the manner and time of publication, as herein outlined, has been within the limits of the discretion vested in him and in substantial compliance with the requirements of the Air Commerce Act of 1926 (44 Stat. 568).

DEPARTMENT OF JUSTICE,
February 19, 1930.

SIR: I have the honor to acknowledge receipt of the letter of the Acting Secretary, dated January 13, 1930, in which my opinion is asked on the following question arising in the administration of the Air Commerce Act of 1926 (Act of May 20, 1926, c. 344, 44 Stat. 568, U. S. C., title 49, sections 171-184):

"Whether section 2 of the above-mentioned act requires the Secretary of Commerce to make public the causes of accident in civil air navigation in any other manner than in statistical form, as outlined in the accompanying papers and at such times as he may deem advisable.”

Section 2 of the Act reads as follows:

"SEC. 2. PROMOTION OF AIR COMMERCE.-It shall be the duty of the Secretary of Commerce to foster air commerce in accordance with the provisions of this Act, and for such purpose

"(a) To encourage the establishment of airports, civil airways, and other air navigation facilities.

"(b) To make recommendations to the Secretary of Agriculture as to necessary meteorological service.

"(c) To study the possibilities for the development of air commerce and the aeronautical industry and trade in the United States and to collect and disseminate information relative thereto and also as regards the existing state of the art.

"(d) To advise with the Bureau of Standards and other agencies in the executive branch of the Government in carrying forward such research and development work as tends to create improved air navigation facilities. The Secretary of Commerce is authorized to transfer funds available for carrying out the purposes of this subdivision to any such

agency for carrying forward such research and development work in cooperation with the Department of Commerce.

"(e) To investigate, record, and make public the causes of accidents in civil air navigation in the United States.

"(f) To exchange with foreign governments through existing governmental channels information pertaining to civil air navigation.”

You state that the Department's method of recording and making public the causes of accidents in civil air navigation is shown in "Comparative Statistics and Analyses of Accidents in Civil Aeronautics for the Years 1927, 1928, and the First Six Months of 1929," a copy of which you enclose. This has, since the date of your letter, been published in Air Commerce Bulletin, Vol. 1, No. 14, pp. 9-14, of January 15, 1930. These published statistics do not disclose the cause of any particular accident, but classify, in tabular form, the causes of all accidents. The method of investigation and the manner of tabulating such causes are thus described in the Air Commerce Bulletin (ibid. p. 9):

"The causes of the accidents are divided into four major classifications--personnel, power-plant failures, airplane failures, and miscellaneous. There is a fifth category given over to undetermined and doubtful causes.”

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"The accident report is based on the findings of the accident board of the Aeronautics Branch, which is composed of two expert pilots, a flight surgeon, an aeronautical engineer, a lawyer versed in air law, and a statistician. This board. investigates and determines the causes of all civil-aircraft accidents; analyzes all accidents reported from the field and reduces them to their causation factors expressed in percentage. The statistics gathered from the work of this accident analysis have proved to be of great value, particularly by pointing to ways and means of decreasing the number of aircraft accidents. They also are of great assistance in the development of certain structural and flying characteristics in aircraft."

The Air Commerce Act of 1926 is entitled "An Act to encourage and regulate the use of aircraft in commerce, and for other purposes." It vests broad powers in the Secretary

of Commerce. Among other things, he is given, by section 3, certain regulatory powers with respect to the registration of aircraft, the examination and rating of aircraft, airmen, and air navigation facilities, and the establishment of aircraft rules, and by section 5 authority to designate and establish civil airways and provide for aids to air navigation thereon. The entire Act, and especially section 8, indicates an intention to give the Secretary of Commerce wide discretion in its administration, and this purpose was stated in the report of the Committee on Interstate and Foreign Commerce of the House (Report No. 572, 69th Cong., 1st Sess., House of Representatives) of March 17, 1926, as follows:

"The committee has been mindful of the fact that one of the principal objects to be accomplished by the bill is the encouragement of aviation and it has therefore left wide discretion in the Secretary of Commerce so that individual operators or other agencies should not be unduly hampered by restrictions or regulations until experience might prove them necessary. It has endeavored to leave the field of invention and experiment entirely free and unhampered by Government interference."

The requirement of subdivision (e) of section 2, here in question, "to investigate, record, and make public the causes of accidents in civil air navigation in the United States," is phrased in general terms, and manifests the purpose above expressed to leave a broad discretion to the Secretary. It contains no specific directions as to the manner or time of publication. Its declared purpose is "to foster air commerce." The duties imposed by the other subdivisions of the section, for the same purpose, are phrased in equally general terms. The entire content of the section discloses the intent to leave matters of detail to the discretion of the Secretary of Commerce, subject to the general requirement that the means adopted must be such as to "foster air commerce."

In an opinion of May 6, 1929, to the Postmaster General (36 Op. 33, 36), I used the following language, which is quite applicable here (p. 36):

"The Act itself does not provide any specific method of obtaining bids. The sole direction in that respect being that—

'the Postmaster General is hereby authorized to award such contracts to the bidders that he shall find to be the lowest responsible bidders that can satisfactorily perform the service required to the best advantage of the Government.' This language clearly contemplates competitive bidding, and it is equally clear that it leaves to the Postmaster General a very wide measure of discretion as to the means and methods of securing the bids.”

A similar matter was considered in an opinion by Attorney General Clifford. (4 Op. 585.) The Act of March 3, 1843, c. 100, 5 Stat. 630, 641, appropriated money for the publication of a Documentary History of the American Revolution, and contained this proviso:

"Provided, also, That the materials which shall compose each successive volume shall, before any appropriation is hereafter made for the cost of the same, be submitted to, and approved by, the Secretary of State for the time being: "

This proviso did not prescribe the time at which the Secretary was to give his approval, and the Secretary submitted for the opinion of the Attorney General the question whether it was sufficient for him to approve the outline of the materials as they were presented by the contractor for each successive volume. The Secretary was advised that such approval might "be fully justified as a reasonable compliance with the requirements of law."

These opinions are but expressions of the well-settled principle that, in the absence of specific statutory requirements, incidents of administration lie largely within the discretion of the heads of the several Government departments. See United States v. Macdaniel, 7 Pet. 1, 14-15; United States v. Wright, 11 Wall. 648; National Life Ins. Co. of the United States v. National Life Insurance Co., 209 U. S. 317; Central Trust Co. v. Central Trust Co. of Illinois, 216 U. S.

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The statistical method which you have adopted to "make public the causes of accidents in civil air navigation in the United States" seems to be a reasonable compliance with the requirements of the statute, having in mind its expressed purpose "to foster air commerce." The papers submitted with your letter suggest that the real purpose of demanding

detailed information as to the causes of particular accidents may often be to assist private parties in litigation involving the legal responsibility therefor. The publication of such information might make it difficult for the Department to secure frank disclosures from those concerned in particular accidents and might thus hamper the Department in securing accurate information upon which to base remedial measures for the future. These considerations suggest a possible reason for Congress not requiring any particular method for making public the causes of accidents.

The time of publication is not specified at all in the Act, and is thus left largely to your discretion. Of course, the intervals must not be so infrequent as to negative substantial compliance with the statutory requirement of publication. I understand, however, that your practice has been to publish statistical material of the sort above described at approximately six months intervals.

I am of the opinion that the course which you have followed, with respect both to the manner and time of publication, has been within the limits of your discretion under the statute and in substantial compliance with its requirements.

Respectfully,

WILLIAM D. MITCHELL.

To the SECRETARY OF COMMERCE.

AUTHORITY OF PRESIDENT TO DROP AN OFFICER FROM THE ROLLS OF THE NAVY

One A. E. Tangren, a chief machinist in the U. S. Navy, was convicted by a Federal court of certain offenses against the United States and was sentenced to pay a fine of $1,000 and be imprisoned in a Federal penitentiary for a period of 18 months. The execution of his sentence of imprisonment was suspended under the Probation Act of March 4, 1925 (43 Stat. 1259), and he took no steps during the term at which his sentence was imposed to alter or set it aside. Held that the said Tangren has been "finally sentenced to confinement in a * Federal penitentiary" within the meaning of the Act of April 2, 1918 (40 Stat. 501), and consequently may be dropped from the rolls of the Navy by the President.

*

DEPARTMENT OF JUSTICE,

March 4, 1930.

SIR: I have the honor to comply with your request of September 9, 1929, for my opinion upon the question

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