RADIATION PROTECTION

767

Ocean disposal, as recommended by the National Academy of Sciences, would lead to reduction of exposure risks in the present waste handling system by elimination of special waste tanks, increase of cargo capacity tonnage, elimination of major costs of waste processing system, as well as timesaving, resulting from reduced time in port for waste handling operations.

CONCLUSIONS

The competitive development of nuclear power for the shipping industry, in part, depends on radiation standards for reactor operation. More stringent radiation protection standards directly affect design features, operation, and maintenance of reactor system, and are reflected in increased costs.

Closely allied to the area of radiation standards will be the future need of general legislation, as indicated by international agreements on nuclear ship liability and admiralty.

APPENDIX 14

GENERAL NATURE OF OPA PRICING STANDARDS

BY DAVID F. CAVERS

(Excerpts from Chapter 1 of "Problems in Price: Pricing Standards,” edited by James B. Eckert (General Publication No. 7 in "Historical Reports on War Administration: Office of Price Administration"), 1957)

A meaningful history of the control of prices by the Office of Price Administration during the Second World War, the prewar defense emergency, and the postwar reconversion period could not be written solely in terms of the agency's objectives and the maximum price regulations it issued. The objectives as declared by the Congress comprised a few broad policy goals, aptly formulated in general terms that left needed play for administrative discretion; in contrast, the means to these ends, the regulations, their revisions and amendments, were multitudinous in number, detailed and specific in character.

Since the means chosen did not follow ineluctably from the declared ends, what, then, were the principles that mediated between these means and ends and governed the choices made? It is in the answer to that question that the student of the history of price control must look in seeking for insight into its problems. His investigation may, however, lead him along either of two lines of inquiry. If his primary concern is with the techniques of control, he will want to know the reasons that led OPA to develop and use such methods as the "price freeze," "formula pricing," "dollars-and-cents ceilings" and "preticketing." If, instead, his concern is with the considerations that determined when OPA would act to establish ceilings and later to increase or reduce them, then his inquiry will lead him directly to a study of OPA's pricing standards.

OPA's pricing standards, as will be seen, took a variety of forms and were to be found in a hierarchy of sources: in statutes, in executive orders, directives and other policy statements, and even in certain maximum price regulations and the operating instructions issued under them. However, before any attempt is made to differentiate among the standards emanating from these sources, there is need to consider the concept of the standard, particularly as that concept is employed in relation to official action.

1. The Role of Standards in Relation to Official Action

The term "standard" in this context has no precise meaning firmly fixed in law or even in the usage of lawyers. Its significance must be derived from a consideration of the processes of government in which it is employed. Thus approached, it will appear that the standard is perhaps the principal device in the processes of translating determinations of policy goals into official action.

The Use of Statutory Directives

In democratic representative governments, the primary determination of policy goals is the function of the legislature. Virtually none of its determinations are self-executing; it must lay down directions to govern the actions of private persons or of officials. Traditionally these directions have taken the form of rules applying to private persons and sanctioned by definite legal consequences prescribed for noncompliance, enforced usually by the courts and their officials, sometimes by administrative tribunals. Increasingly, however, the effectuation of what are often the most important policy goals cannot be achieved by prescribing rules to operate in this manner. The problems are too complex. The legislature can neither pursue their various ramifications nor make the continuing adjustments which day-to-day experience may show to be needed. It must therefore direct designated administrative officials either to issue regulations containing rules of general applicability or to issue orders to particular persons, designed to achieve whatever may be the statutory policy goal.

Suppose the legislature follows this latter course, directing the issuance of either regulations or orders. Then it is only by virtue of official compliance with the legislative directive that the statute has legal consequences for the individual. An outstanding example of such a statutory directive is the basic provision in section 2 (a) of the Emergency Price Control Act wherein the Congress directed the Administrator to establish maximum prices for commodities. Until the Administrator actually issued maximum price regulations, the statute did not operate to limit the prices which sellers might charge. The Necessity of Standards in Statutory Directives

Whenever a legislature determines thus to direct the action of officials, it is confronted by the problem of how far to limit or channel the exercise of the authority it seeks to confer. If the legislature were to do no more than state a broad policy goal and empower the official to take whatever action he deemed appropriate to attain it, then the legislature would have so far abdicated its authority with respect to the problem as to have defeated, in the particular situation, the functioning of the constitutional scheme of government. Its failure to

assume responsibility would in effect have transferred to the executive branch of the government authority which the Federal and State constitutions vest in the legislative. Moreover, this failure would vitiate the grant of authority, and persons adversely affected by its purported exercise could challenge the authority in the courts.1

This constitutional compulsion reinforces what is ordinarily the desire of the legislature: to set limits to the authority it confers. This it can do by prescribing in its statutory directive to the administrative officials a condition or set of conditions to determine when those officials should act or to measure the extent of the action authorized to be taken. A condition or set of conditions prescribed for either or both of these purposes is a standard of official action. Thus defined, the standard, it should be noted, is not the directive 2 itself; it may rather be regarded as either a component of the directive or a limitation upon it.

The Emergency Price Control Act affords many examples of such standards. Thus section 2 (a) directs the Administrator to establish maximum prices whenever, in his judgment, "the prices of a commodity or commodities have risen or threaten to rise to an extent or in a manner inconsistent with the purposes of this Act." The language quoted constitutes the standard; it determines the situation in which the Administrator's authority may be exercised. In the same paragraph are two other standards which limit the extent of that authority: the maximum prices must be such as will, in his judgment, be "generally fair and equitable and will effectuate the purposes of this Act."

General and Specific Standards

These standards are general. Within the framework they establish, they vest in the Administrator a responsibility not only to make

1 In the famous Schechter case, 295 U. S. 495 (1935), holding the National Industrial Recovery Act invalid, the inadequacy of the statutory standard was the only ground of decision in which all of the justices of the Supreme Court concurred. It should be remarked that Mr. Justice Roberts, dissenting in Yakus v. U. Š., 321 U. S. 414 (1944), regarded the standards of the price control legislation as insufficient to satisfy constitutional requirements.

2 For this use of the term "directive," an acknowledgment of indebtedness is due to Dean Roscoe Pound with whom the problem of terminology was discussed in the light of his classification of common law precepts into four categories: principles, rules, concepts, and standards. See Pound, History and System of the Common Law (1939), pp. 9-13. None of these terms, as defined, aptly covers those legal precepts, here designated as "directives," which (1) emanate from the legislature or from duly authorized administrative officials and (2) provide directions to officials for the mandatory or discretionary exercise of authority to achieve specified goals but (3) have no direct legal consequences for the private person. Dean Pound questions the aptness of the term "standard" when used to designate the limiting components of such directives. He feels that the sense in which the term is thus used differs so materially from the sense in which "standard" is used in his classification of common law precepts that, to avoid confusion, the use of another term would be desirable. However, it has been felt that to abandon the use of the term “standard” in this work, would, in view of its frequent use in writings relating to price control as well as in constitutional cases, result in difficulties more than offsetting the advantages to be gained.

determinations of fact but also of policy. Clearly more than questions of fact must be resolved in deciding when, for example, a price has increased "to an extent inconsistent with the purposes" of the price control laws. And when are maximum prices "generally fair and equitable"? Indeed, the act explicitly recognizes the necessity for the exercise of discretion by invoking in each of these instances "the judgment" of the Administrator. However, the element of broad discretion is not characteristic of all the act's standards. Thus, a provision in section 3 (a) of the act (later suspended by the President under the authority of the Stabilization Act) required that no maximum price for any agricultural commodity should be below "110 per centum of the parity price for such commodity, as determined and published by the Secretary of Agriculture." Here the standard in the congressional directive to the Administrator came as close to being explicit and to denying him any range of discretion as statutory standards can well be expected to come.3

From the standpoint of its limiting effect upon the Administrator's authority, the language imposing the 110 percent of parity limitation seems none the less a "standard" by reason of its relatively specific character. However, such a standard does differ from the standards which require the reaching of further policy judgments in another important respect: a standard of the latter sort imposes upon the Administrator the necessity of finding ways to implement the standard so that not only he himself but all the officials acting under him will give to it a uniform interpretation and reach consistent results in its application. This is a fundamental problem in the devolution of authority.

The Relation of Standards to Administrative Uniformity, Consistency, and Efficiency

The pressure for uniformity in the interpretation, and consistency in the application, of standards is one of the most significant characteristics distinguishing the use of standards in directives governing official action from the common use of standards in daily life by people who are not government officials but who are seeking to control

It is important to recognize the relative character of the contrast drawn between general and specific standards. Few, if any, standards, especially legislative standards, can be so explicit as to leave no choices open to the officials applying them. Thus, though the Administrator had to accept as given the parity figure published by the Secretary and apply to it a simple arithmetic calculation, still he had considerable play for policy judgments in determining what were "agricultural commodities" and how "the maximum price" of a commodity sold in many grades or many markets should be computed in order to compare that price to 110 percent of the commodity's parity price.

But in the classification of common-law precepts developed by Dean Pound, loc. cit., supra note 2, "rules" are distinguished from "standards" on the ground that the former are definite and detailed, calling only for determinations of fact for their application, whereas the latter require for their application not only fact determinations but the exercise of judgment.