The Regulatory Process in Opa Rationing 9780231896948

Table of contents :
Preface
Contents
Introduction
I. The Planning Process
II. External Relations of Rationing Branches
III. The Documents of Communication
IV. Rationing and Administrative Theory
Notes
Index

Citation preview

The Regulatory Process in O P A Rationing

The Regulatory Process in O P A Rationing

VICTOR ALEXANDER THOMPSON Associate Professor of Political Science Illinois Institute of Technology

Submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy in the Faculty of Political Science, Columbia University

King's Crown Press COLUMBIA UNIVERSITY, NEW YORK, 1950

COPYRIGHT

1 9 5 0 BY V I C T O R A .

THOMPSON

KING'S CROWN PRESS is a subsidiary imprint of C o l u m b i a

University Press established for the purpose of making certain scholarly material available at minimum cost. Toward that end, the publishers have adopted every reasonable economy except such as would interfere with a legible format. T h e work is presented substantially as submitted by the author, without the usual editorial and typographical attention of Columbia University Press.

Published in Great Britain, Canada, and India by Geoffrey Cumberlege, Oxford University Press London, Toronto, and Bombay M A N U F A C T U R E D IN THE UNITED STATES OF AMERICA

Preface A F T E R HAVING BEEN a member of the rationing staff of the Office of Price Administration (OPA) for about three and one-half years, it occurred to me late in 1945 that a rather intimate, "inside" account of how the rationing rules evolved would be valuable to students of administration. Consequently, I disassociated myself from OPA late in 1945 and, with the aid of a grant from the Social Science Research Council, began gathering and sorting the materials and memories which have resulted in this book. My objective from the outset was to describe those aspects of rationing rule-making which would have universal applicability, or which would have interest and utility to all administrative officials—not just to rationing officials. Consequently, I carefully avoided doing a history of rationing or a sheer description of rationing mechanics. However, a person reading the book will acquire before he is through a fairly thorough knowledge of rationing mechanics as well as some rationing history. To keep the project within feasible limits I made no attempt to study or discuss OPA field administration and field personnel. This book is concerned almost entirely with the rationing planning process in Washington and the methods by which the resulting plans were communicated to those concerned. All references to rationing personnel are to Washington office personnel unless the contrary is explicitly stated. Field behavior comes into the picture only occasionally as an indication of the results of some Washington decision. For a careful reading of the manuscript and many suggestions for its improvement I am deeply indebted to the following: Professors Arthur W . Macmahon, John D. Millett, and Walter Gellhorn, of Columbia University; Mr. Kimball Prince, formerly Regional Rationing Attorney for the New York region; Professor Wallace S. Sayre, of Cornell University; and Professors Herbert A. Simon and Donald W . Smithburg, of the Illinois Institute of Technology. Mr. Finley Wiseman edited a large part of the original manuscript. Finally, I am indebted to my wife for suggestions of all kinds throughout the writing of the book and for ultimately adopting the role of production executive in seeing that a finished copy actually got to a publisher. For any imperfections I alone am responsible. VICTOR A . THOMPSON

Chicago, Illinois November, 1949

Contents 1

INTRODUCTION ORGANIZATIONAL BACKGROUND

2

LEGAL BACKGROUND

4

I. Ι.

THE PLANNING

PROCESS

PROBLEMS OF TECHNIQUE THE RULE MUST BOTH DESCRIBE AND DIRECT BEHAVIOR

Undesirable Effects Because of Failure to Describe Behavior in the Rule, io; T h e "Rule of the Road," n ; Maintaining Normal Practice Described in the Rule, n ; Changing Normal Practice May Be Necessary, 12; Sacrifice of Purpose to Normal Practice, 12; Changing Normal Practice for Purposes of Administrative Convenience, 13; Administrative Convenience Sacrificed to Normal Practice, 14; T h e Rule Should Contemplate Non-compliance, 15; Rules Describing Field Behavior, 16 ADMINISTRATIVE VS. LEGAL TECHNIQUE

9 9

L8

Administrative Technique Illustrated, 19; Use of Legal Technique Where Redundant, 19; Confusion of the T w o Techniques, 20; Adoption of Administrative Technique W h e n Legal Technique Failed, 23 REGULATION BY IMPEDIMENTA

27

RULE-MAKING FOR PSYCHOLOGICAL EFFECT

3I

PROBLEMS OF SUB-DELEGATION

33

Delegation to Local Ration Boards of the Power to Pass on Applications, 33; Abdication of the Planning Function, 34; Delegation to Allow Field to Determine Its Own Work Load, 36; Delegations to Other Levels Based on Distrust of Boards, 36; Delegations to Field Based on Need for Speed and Local Information, 39; Shifting Responsibility and Pressure to Field Offices, 41; T h e Role of the Legal Document in Delegation, 43; Washington Retains the Power to Decide, 44 CERTIFICATIONS

45

DEADLINES

47

Deadline May Be Necessary Part of Regulation, 48; Public Should Be Prepared for Deadline, 49; Use of Deadline in Mass

vili

CONTENTS Filings, 49; No Deadline W h e n Government W a n t s to Bestow Favor, 50; W h e n Granting Favors as a Sanction, Deadlines Should Not B e Used, 53; Possible Use of Deadline to Reduce Spurious Claims, 55

2.

3.

T H E F O R M A L PLANNING PROCESS

57

T H E NORMAL PROCESS

58

SPECIAL PROCESSES

6L

T H E INTERPRETIVE PROCESS

65

T H E GASOLINE ELIGIBILITY C O M M I T T E E

78

COMPOSITION O F T H E C O M M I T T E E

8L

THE

COMMITTEE'S

FUNCTION

ITS

GRAVE

RESPONSIBILITY

8 3

INDEPENDENCE O F T H E C O M M I T T E E

85

T H E C O M M I T T E E AS A NATIONAL "CLEARANCE P O I N T "

87

JUDICIAL NATURE OF T H E C O M M I T T E E ' S DECISIONS

90

ADMINISTRATIVE I M P A R T I A L I T Y

91

LACK O F JURISDICTIONAL

JEALOUSY

Ç2

NEED FOR SKEPTICISM

93

T H E C O M M I T T E E ' S VALUE S Y S T E M

9Ç

Public Functions by Private Individuals, 95; Funerals, 96; Religion, 97; Organization W o r k , 97; Production, 98; Distribution of Goods and Services, 98; Supervisory Activities, 99; Centralized and Special Services, 99; Athletic Competition, 100; T h e Electoral Process, 100; States Rights, 100; T h e Healing Arts, 101 "LEGAL REALISM" INFLUENCE O F CONGRESSMEN

102 I05

INTEREST REPRESENTATION THROUGH OTHER GOVERNMENT AGENCIES PRESSURE AS A TECHNIQUE O F CHANGE

105 IO7

AMOUNT O F GASOLINE USED AS A FACTOR IN E L I G I B I L I T Y

I08

E X P E R T KNOWLEDGE F R O M OTHER GOVERNMENT AGENCIES

IO9

ANOTHER TECHNIQUE F O R V E R I F Y I N G T H E PETITIONERS* CLAIMS

II4

A BAD PETITION CAN DEFEAT I T S E L F

I16

DENIAL B Y REFERENCE

I16

SOPHISTIC REASONS FOR DENIAL

I18

HOW T H E C O M M I T T E E RESPONDED T O THREATS

120

APPROVAL BECAUSE O F T H E CONSEQUENCES O F DENIAL

121

P R O B L E M S O F CLASSIFICATION

122

S U M M A R Y AND CONCLUSIONS

I30

CONTENTS 4.

S O M E CHARACTERISTICS OF G R O U P DECISION THE RATIONING BRANCHES THE WORKING CONFERENCE COMMITTEE IN FUEL RATIONING LESSONS OF THE GASOLINE ELIGIBILITY COMMITTEE

5. 6.

ix I35 *35 »37 *39

INDUSTRY CONSULTATION

142

PRESSURE

*59 160 160 162

PRESSURE AND THE HIERARCHY AVOIDANCE OF PRESSURE PRESSURE TECHNIQUES

"A Friend in Washington," 162; Pressure through Other Government Agencies, 162; "Going through High Levels," 163; Exciting Politically Important Groups, 164; Pressure through Congress, 165; Political Pressure, 167; T h e Farmers Union Case, 168

7.

ADMINISTRATIVE USE OF PRESSURE

I72

PRESSURE AND DEMOCRATIC ADMINISTRATION

174

T H E SOCIAL PSYCHOLOGY OF PLANNING: THE INTERNAL PHASE

177

INACCURATE STATEMENT OF THE PROBLEM

I77

INCOMPLETE PLANNING

182

LACK OF PROCEDURAL CONSCIOUSNESS

185

ESTHETICS

194

THE LOGIC OF THE MAJOR PURPOSE

I96

Major Purpose and Specific Rule, 196; Ability to Use Logic W a s Chief Government Skill, 197; Creation or Recognition of New Purposes, 199; Importance of Clearly Defined Purpose, 202 MAINTENANCE OF CONCEPTS

204

LECAL ATTITUDES

207

Legal Problems and Legal Solutions, 207; Inherited Legal Forms, 210; The Independent Power of the Legal Rule, 213; The Power of the Written Word, 213; Abhorrence of an Indeterminate World, 214; Refusal to Recognize Illegality, 215; The Psychological and the Legal World, 2 1 7 RATIONALIZATIONS AND VINDICATIVE NESS

220

PROTECTION OF THE INDIVIDUAL

22Ó

PROTECTION OF THE PUBLIC INTEREST

236

THE PROBLEM OF VALUES

24O

The Veterans Case, 242; T h e Stamp Cancellation Case, 250

χ

CONTENTS

II. E X T E R N A L R E L A T I O N S O F R A T I O N I N G BRANCHES 8.

T H E SUPPLY AGENCIES

255

9.

T H E BUREAU OF THE BUDGET

273

10.

T H E OVERHEAD

285

RATIONING STAFF UNITS

286

CLEARANCE

292

TYPES OF CLEARANCE, 292; CHARACTERISTICS OF REVIEW, 298; SANCTIONS FOR REVIEW, 302 FUNCTIONS OF RATIONING SUPERIORS

303

Political Function, 304; Correction of the Institutional Deviation, 305; The Superior as a Worker, 306; Deciding between Conflicting Implementations, 308; A Channel of Communication, 310; Sale of the Product, 311; Protection against Danger, 312; The Critique of Implementations, 314 THE CONTROL PHILOSOPHY

318

THE ROMANCE OF THE SUPERIOR

322

SUMMARY

32 Ç

III. T H E 11. 12.

13.

14.

DOCUMENTS

OF

COMMUNICATION

RATIONING RULE-SYSTEMS

330

PARTS OF RULE-SYSTEMS

338

AMENDMENTS

338

ORDERS PURSUANT TO ORDERS

338

ADMINISTRATIVE EXCEPTIONS

339

OFFICIAL INTERPRETATIONS

343

PREAMBLES

344

RATIONALES

348

SUPPLEMENTS, SCHEDULES, AND APPENDICES

351

SUSPENSION ORDERS

356

T H E LEGAL D O C U M E N T AS AN INSTRUCTION

359

AN INSTRUCTION TO THE PUBLIC

359

AN INSTRUCTION TO THE FIELD

368

AN INSTRUCTION TO THE PRINTERS

374

AN INSTRUCTION TO CIVILIAN VOLUNTEERS

375

COMMUNICABILITY OF THE RATIONING LEGAL DOCUMENTS

377

DRAFTING MECHANICS

377

xi

CONTENTS LEGAL ATTITUDES TOWARD LAW-MAKING AND THE INSTRUCTIVENESS OF THE LEGAL DOCUMENT

384

T h e Drive for Accuracy, 384; Contemplated in Law, 386; Historicity of the Regulations, 387 15.

MAKING THE RULES K N O W N

389

THEORIES OF THE RELATION OF INSTRUCTIONS TO LEGAL DOCUMENTS

16.

392

THE LOCAL BOARD LOOSELEAF SERVICE

406

LEGAL ATTITUDES REGARDING NON-LEGAL INSTRUCTIONS

4II

HOW THE PUBLIC WAS INSTRUCTED

414

S U M M A R Y : THE PLACE OF THE LEGAL D O C U M E N T

419

IV. R A T I O N I N G 17.

389

THE DEVELOPMENT OF INSTRUCTION TECHNIQUES

A N D

ADMINISTRATIVE

THEORY

CONCLUSION

424

REGULATION AS A PROBLEM IN SOCIAL PSYCHOLOGY

424

RATIONING EXPERIENCE AND THE CONCEPTS OF ADMINISTRATION 4 2 6

Overemphasis on Organizational Form, 426; T h e Nature of Authority, 428; Functions of Superiors, 428; T h e M y t h of Staff, 430; T h e Policy-Administration Dichotomy, 433; T h e Importance of a Conceptual Scheme, 435 NOTES

437

INDEX

461

Introduction THIS BOOK IS a study of the process by which the rationing rules were planned and communicated by the Washington staff of the Office of Price Administration. A description of such a process is actually a description of decision-making. In order for it to be accurate it must include a description of all the significant elements that went into the rationing decisions. T o determine and describe those elements as objectively as possible was not always easy for one who had been a member of the rationing staff. An objective description of planning or decision-making does not appear very complimentary to the planners. Many elements in intellectual activity are non-logical or sub-rational. Values and unverified factual assumptions have a way of creeping into our thinking without our realizing it. Furthermore, in group thinking, the resolution of many different attitudes, emphases, and even conceptions of the goal to be achieved does not always result in a clear-cut logical application of means to accepted ends. The result often is characterized by the illogic of compromise. In the case of rationing planning, the fact that little useful previous experience or knowledge was available, that a tremendous number of decisions were made, and that speed was generally considered very important, gave a fairly wide play to non-rational influences on the thinking process. As a consequence, rationing planning proved to be a very fertile field for the investigation of the many elements that enter into the decision-making process. It is the author's assumption that a rational decision involves: ( 1 ) a clearly defined goal or objective; (2) the discovery of all available alternative means for achieving the goal; and (3) the selection of that alternative means which most advances the goal with a minimum of undesirable consequences. With this concept of the nature of a decision, the study of rationing planning in this book has focused chiefly on : ( 1 ) the methods by which goals were evolved and conceptualized; (2) the source and nature (and often validity) of the prevailing notions as to what constituted effective means; and (3) the values and processes of evaluation by which alternative means were evaluated and one selected from among them. This type of analysis emphasizes very strongly that the influence the formal organization itself brings to bear on the decisions of its members is very slight. Of much greater importance are the influences from past training and experience in society which have become internalized in the indi-

2

INTRODUCTION

vidual and are brought by him into the organization. T o a large extent the study of decision-making in an organization becomes a study of society. Rationing officials grew in knowledge of rationing techniques during the rationing period. Beginning with no knowledge of rationing, they became rationing experts. Because this study is not a rationing history, nor organized on any historical basis, it does not adequately portray this improvement in technique. However, in the opinion of the writer, the fact that rationing techniques were gradually improved is not nearly so important as an understanding of the decision-making process, and materials and cases have been chosen to illustrate the latter rather than the former. If some readers feel the result has been somewhat unfair to rationing personnel, the writer can only state emphatically that he had no intention to make any unfavorable comparison between them and any other group of persons. Rationing personnel discharged their war-time functions with at least as much ability and integrity as any other group of war-time officials. Rationing regulation, like any other regulation, involved plans and communication. As the term is used here, a plan is a pattern of desired behavior. Communication is the means whereby the desired behavior is elicited. It is what comes between the mental image of the desired behavior and the desired behavior itself. Sometimes the plan depends partly upon the behavior of judges (or legal counsel). Then it must be partly communicated by legal means—by "laws." T h e plans so communicated are the "regulations." Many rationing plans were communicated as nonlegal instructions—by manual, by letter, by word of mouth. These plans were, nevertheless, designs for the behavior of someone. T h e point is that the plan—the desired behavior—must be distinguished from the way it is communicated. In line with these definitions, the terms "rule-making process" and "planning process" mean the same thing. They are used interchangeably throughout. Parts I and II of this study are descriptions of the planning process— the influences that shaped and determined the content of the plans; or, to state it another way, the elements that went into rationing decisions. Part I deals with the planning process as such. Part II relates this process to the governmental environment surrounding it. Part I I I deals with communication of the plans. ORGANIZATIONAL

BACKGROUND

T h e following description of the organization for rationing is not meant to be detailed or even completely accurate. Certain features of the or-

INTRODUCTION

3

ganization changed from time to time. T h e basic lines of organization, however, remained the same throughout rationing history. T h e brief description of rationing organization which follows is intended to make it easier for the reader to follow the text of the book. T h e three functions of O P A — r e n t control, price control, and rationing —were each allocated to a "department"—the rent department, the price department, and the rationing department. There was also an enforcement department which enjoyed a monopoly of all enforcement activities, meaning those activities leading to the imposition of a penalty for violation of the rules, and an information department charged with all public educational activities. At the head of each department there was a deputy administrator responsible to the O P A administrator and assistant administrator. In addition, there were certain agency-wide administrative offices. In the last days of rationing, these were the personnel office, the budget office, the administrative services office, and the office of board management. There were many other agency-wide offices or advisors to the administrator which had some significance for rationing, such as the office of statistical standards and the labor office, but an enumeration would be more confusing than helpful to the reader. T h e rationing activities in the rationing department were divided among four rationing divisions—the food rationing division, the miscellaneous products rationing division, the automotive supply rationing division, and the fuel rationing division. There was also a legal rationing division with supervisory control over all rationing attorneys. Rationing attorneys worked in various rationing divisions, branches, and sections on assignment from the legal rationing division. T h e y were administratively responsible only to the hierarchy in the legal rationing division. T h e rationing divisions were further divided into branches. Each branch was responsible for one rationing program. (Some divisions had "operations branches" which contained all the centralized functions of the division, such as preparation of forms and instructions, field liaison, administrative services, etc. ) Rationing branches were further subdivided into specialized sections, and in some cases the sections were further subdivided into more specialized units. At the departmental level in the rationing department there were various organizational units that were supposed to review the various aspects of the work of the rationing branches and divisions. T h e s e centralized departmental units dealt with such matters as statistics, program planning, clearance, currency preparation and custody, printing, field liaison, and ration banking. T h e responsibility for successful rationing was located in the rationing branches. T h e y were the basic organizational units for rationing.

4

INTRODUCTION

In the field, OPA divided the country into eight regions, and each region was divided into districts. There was a total of ninety-three districts. Each regional and district office was organized in much the same way as the national office. In the regional office there was a regional administrator; a rationing executive, with rationing representatives under him corresponding to the various rationing branches in Washington; and a regional rationing attorney and a regional enforcement attorney. (There were also price, rent, administrative, accounting, statistical, and other functions in the regional offices which corresponded closely to their Washington counterparts.) District offices were organized in much the same way as the regional offices. There were also various "supply agencies" which had the legal authority to direct OPA to ration or to cease rationing, to designate the commodities which should be rationed, the areas in which they should be rationed, and the amounts which were available for rationing. They were the War Food Administration ( W F A ) in the Department of Agriculture; the Petroleum Administration for War ( P A W ) and the Solid Fuels Administration for War ( S F A W ) in the Department of the Interior (these two agencies did not actually have the legal authority to direct OPA but did so just the same as if they had); the various commodity divisions of the War Production Board ( W P B ) , which had authority over all commodities not under the control of the preceding three agencies; and, finally, the Office of Defense Transportation ( O D T ) , which had complete authority over the commercial vehicles of the country and thereby gave OPA directions with regard to rationing tires and gasoline for commercial vehicles. As was said before, this description of the organizational background is far from complete. However, it is sufficient to enable the reader to understand the terms most frequently used and to form some idea of the organizational environment within which rationing took place. The important organizational units for rationing were the rationing department, the rationing divisions and the rationing branches, their counterparts in the regional and district offices, and the 5,500 local rationing boards. (Depending upon the work loads, the functions of local boards also became specialized.1 Thus, large boards had fuel panels, shoe and rubber footwear panels, food panels, gasoline panels, etc.) LEGAL BACKGROUND On June 28, 1940, Congress passed an act " T o expedite the national defense and for other purposes" (54 Stat. 676). Section 2(a) of this act

INTRODUCTION

5

provided that Army and Navy orders and contracts "shall, in the discretion of the President, take priority over all deliveries for private account or for export." On M a y 31, 1941, Congress passed "an Act to amend the Act approved June 28, 1940 . . . in order to extend the power to establish priorities and allocate material" (55 Stat. 236). This amending act gave the President power to allocate any material in short supply "in such manner and to such extent as he shall deem necessary or appropriate in the public interest and to promote the national defense." On March 27, 1942, Congress enacted the Second W a r Powers Act ( 56 Stat. 1 7 6 ) . This act was an omnibus bill with fifteen titles. Title III is an amended reenactment of Section 2(a) of the 1940 act as amended by the 1941 act. Section 2(a) of the 1940 act, as amended by the 1941 act and the Second W a r Powers Act, was the basic and final authority for rationing. T h e essential provision was as follows : Whenever the President is satisfied that the fulfilment of requirements for the defense of the United States will result in a shortage in the supply of any material or of any facilities for defense or for private account or for export, the President may allocate such material or facilities in such manner, upon such conditions and to such extent as he shall deem necessary or appropriate for the public interest and to promote the national defense. T h e President was also given authority to delegate this allocation power in any way he saw fit. T h e President's allocation power thus established was delegated to the Office of Production Management ( O P M , established January 7, 1941, by Executive Order 8629, 6 F . R . 1 9 1 ) by Executive Order 8875 (6 F . R . 4865) on August 2 8 , 1 9 4 1 . O P M was also given authority further to sub-delegate the allocation power. On January 16, 1942, the W a r Production Board ( W P B ) was established by Executive Order 9024 (7 F . R . 329). Among other duties the chairman of W P B was to "supervise the Office of Production Management in the performance of its responsibilities and duties, and direct such changes in its organization as he may deem necessary." On January 24, 1942, by Executive Order 9040 (7 F . R . 527), W P B was ordered to perform the functions and exercise the powers of O P M , which was thereby abolished. This executive order provided that the Chairman of the War Production Board may exercise the powers, authority and discretion conferred upon him by this or any other Order through such officials or agencies and in such manner as he may determine; and his decision shall be final.

6

INTRODUCTION

O n January 24, 1942, by Directive N o . 1 (7 F . R . 562), Donald M . Nelson, the chairman of W P B , delegated to O P A "authority to provide for the equitable rationing of products at the retail level." The Office of Price Administration is authorized and directed to perform the functions and exercise the power, authority and discretion conferred upon the President by section 2(a) of the Act of June 28, 1940 . . . as amended by the Act of May 3 1 , 1941 [and the Second W a r Powers Act of March 27, 1942] with respect to tne exercise of rationing control over ( 1 ) the sale, transfer or other disposition of products by any person, who sells at retail to any person, and ( 2 ) the sale, transfer or other disposition of products by any person to an ultimate consumer. O n January 30, 1942, Congress enacted the Emergency Price Control Act of 1942 (56 Stat. 2 3 ) , making O P A for the first time a statutory agency. O P A was first created as the Office of Price Administration and Civilian Supply ( O P A C S ) within the Office for Emergency Management ( O E M ) by Executive Order 8734 (6 F . R . 1 9 1 7 ) on April 1 1 , 1 9 4 1 . O P A C S had no statutory authority for price control or rationing. On August 28, 1 9 4 1 , by Executive Order 8875 (6 F . R . 4865), O P A C S became O P A , still without legal authority to ration or control prices. It acquired a statutory basis and authority to control prices by the Emergency Price Control A c t of 1942, mentioned above. It acquired its authority to ration from W P B Directive N o . 1, mentioned above, and from supplementary directives issued from time to time. Supplementary directives were necessary to complete O P A ' s rationing authority for a very simple reason. W P B Directive N o . 1 gave O P A authority to control transactions between consumers and dealers only. O P A , however, developed a type of rationing, "flow-back" rationing, which involved the control of transactions at all levels of the trade. Since this was the only type of rationing O P A would undertake, for each new rationing program W P B had to issue a supplementary directive—thus, Supplementary Directives í A , í B , l C , etc., through l X . O n December 5, 1942, by Executive Order 9280 (7 F . R . 1 0 1 7 9 ) , the allocation power with respect to food, formerly delegated to W P B , was delegated to the Secretary of Agriculture to be exercised by a Food Distribution Administration under his control. O n March 26, 1943, by Executive Order 9322 (8 F . R . 3807), the food allocation power was delegated to a W a r F o o d Administration within the Department of Agriculture, the director to be appointed by and directly responsible to the President. T h e W a r F o o d Administration then became the source of the food allocation power and delegated this power to O P A in W a r Food Orders 8, 56, 58, 59, 6 1 , and 1 2 3 . Formal sanctions for the enforcement of rationing regulations were

INTRODUCTION

η

threefold—civil, criminal, and administrative. Title III of the Second War Powers Act conferred jurisdiction on the federal district courts to enjoin violations of rationing regulations. Injunctions were frequently obtained to prevent further violations of rationing regulations, especially violations of the reporting and record keeping provisions. Title III of the Second War Powers Act also provided that willful violation of any regulation issued thereunder was punishable by fine up to $10,000 or imprisonment up to one year, or both. Furthermore, Section 35(a) of the Criminal Code makes the willful giving of false information on any matter within the jurisdiction of any agency of the United States punishable by fine up to $10,000 or imprisonment up to ten years, or both. This sanction could be invoked for falsification of rationing applications and reports. In addition to this sanction, Section 37 of the Criminal Code makes it a crime to conspire to commit an offense against the United States or to conspire to defraud the United States, these crimes being punishable by fine up to $10,000 or imprisonment up to two years, or both. The criminal penalties mentioned above were rarely used for violations of rationing regulations. The principal sanction used to enforce rationing regulations was an administrative penalty. A person convicted by an OPA hearing commissioner of violating a ration order was usually denied further supplies of rationed commodities, or his ability to do business in a rationed commodity was restricted in some other way. That is, the allocation power was used to allocate commodities away from persons judged by OPA to be violators of ration orders. The rationing orders which accomplished this result were called suspension orders. Hundreds of them were issued against violators of the industry provisions of the ration orders. The suspension order was not used against ordinar}·, individual consumers. If individual consumers violated certain provisions of ration orders, they might have their rations revoked by local boards. The suspension order was the principal formal sanction for the rationing regulations. The allocation power was affected in two minor ways by the Stabilization Extension Act of 1944 (Pub. Law 383, 78th Cong., 2d Sess.). Section 108(d) of that act forbade the use of suspension orders as a penalty for price violations, and Section 108(e) provided for review of suspension orders by the federal district courts.

Part I. The Planning Process THE EXTERNAL ASPECT of the planning process ( f o r m ) can be distinguished from the internal (psychological and social). Thus, a planning process can be described from sheer observation of movement in time and space without attempting to gain an insight into the feelings, motivations, attitudes, and beliefs which direct that movement and give it meaning. T h e external aspect of the planning process, if considered abstractly in terms of function alone, involves the following steps: proposal; discussion and reformulation of the proposal; the décision to adopt or reject the proposal (the decision should come after the discussion and reformulation but does not always do so; a decision before complete discussion involving all aspects of the problem situation makes " b a d " plans); and clearance (the process by which the overhead organization makes itself felt). After the planning process comes translation into action (for the most part, a proccss of communication). T h e external aspect of the process can also be described in terms of O P A organization and office procedures, which might be called the formal planning process. T h e external aspect of the process is not so important as the internal aspect in understanding how the plans or rules came to be as they were. A description of the internal phase is a description of the discernible factors that guide or influence human decisions. These factors are many, and rather elusive, including attitudes, values, intellectual habits, etc. A description of this inner phase of planning gives meaning to a description of the external phase. W h i l e a planning process will always have some form, the form does not contribute very much to the specific plans evolved. In this Part, both the external and internal aspects of the planning process arc discussed. First, however, in Chapter ι some problems and conclusions regarding regulatory techniques, drawn from rationing experience, arc discussed.

Chapter ι.

PROBLEMS OF TECHNIQUE

IT IS NOT DIFFICULT to imagine a change in human behavior or relationships. It is more difficult to accomplish such a change. If a plan for another person's behavior conflicts with his values, it will not be effective unless the conflicting values are neutralized. Such is the function of the inducement or sanction. Thus, a regulatory plan must contain an inducement or sanction. In all cases, the inducement or sanction is simply to make the individual to be regulated believe that not acting according to the plan will result in an undesirable experience—e.g., legal punishment, economic loss, social disapproval, guilt feelings, etc. He must come to believe that behavior contrary to the plan is to be avoided. The regulatory plan envisages two types of behavior response—an intermediate response and an ultimate response. The ultimate behavior response is that of the public or the individuals to be regulated. This ultimate response is obtained by virtue of the behavior of intermediate persons—courts, field officers, information officers, etc. Thus, a plan or rule, which, in the form of a statement, declared that industrial users of food would not receive another allotment of food until they filed an inventory report with their local boards, involved two planned behavior responses: ( 1 ) filing of a report by industrial users, and (2) refusal of allotments to nonreporting industrial users by local boards. The intermediate behavior—the behavior of the boards—was the sanction for the ultimate behavior plan—the behavior of industrial users. The intermediate behavior is what is usually termed "operations" as distinct from planning. Securing the proper intermediate behavior is administration in the narrow sense.

T H E R U L E MUST BOTH DESCRIBE AND D I R E C T BEHAVIOR A rule which said everyone shall do what he is now doing would be a pure description of behavior—a scientific rather than an ethical rule. There can be no problem of enforcement with such a rule. On the other

THE PLANNING PROCESS

10

hand, a rule which said everyone shall do something different from what he is now doing would envisage changing everyone's behavior and would create serious problems of enforcement. Most people will agree that the best rule is one which accomplishes the given objectives with the least impact on, or disturbance of, human behavior. Although this proposition is simple to state, it is difficult to realize in practice. Nevertheless, it is an underlying, implicit objective of the administrator. It is so firmly imbedded in our consciousness that it need not be, and seldom is, expressly stated in statutes or other documents which assign objectives or purposes to the administrator. His work often will be evaluated more by his achievement of this tacit objective than by his achievement of the expressed purpose of his activities. This is so because he will normally have more factual information than anyone else to prove how well he is, or is not, accomplishing his stated objective. He spends a good deal of his time gathering such information. However, many people will have strong opinions as to whether they are being "pushed around" too much by the administrator. Most people feel they are as capable in the art of government as anyone else. Lacking facts with which to criticize the administrator's accomplishment of stated objectives, they will express this feeling emphatically in a criticism of his methods. A restrictive or mandatory rule, no matter how well adapted theoretically to the accomplishment of stated objectives, may thus become a useless or even harmful tool because of public resentment at being "pushed around." On the other hand, a rule which is pure description of behavior does not regulate. T h e administrator must make sure that, in his effort to reach his implicit goal of public ease and convenience, he does not sacrifice his expressed goal—some defined national "good." An administrator who pursues the expressed objective, disregarding the implicit one, is called a "crusader." An administrator who pays too much attention to the implicit objective, to the detriment of the expressed one, we call a "weak administrator." Undesirable

Effects Because of Failure to Behavior in the Rule

Describe

A rule which fails to comprehend (describe) the realities of the total situation may have unforeseen and undesirable effects. In order to expand the national tire stockpile, the tire regulations provided that car owners must give up all tires in excess of those on their cars plus one spare per car. This rule failed to reflect the facts of the tire-using world. One spare for a truck with from six to twenty-four wheels was quite im-

PROBLEMS OF TECHNIQUE

11

possible. Frequently both tires on a double wheel go at once. Consequently, this rule had the unplanned and undesired effect of reducing the efficiency of truck transportation to an appreciable extent. It was quickly amended to allow an "emergency reserve" of tires for long distance truck operators with ICC permits or certificates.1 The "Rule of the Road" To accomplish the expressed objective of the administrators, it frequently makes no difference whether the rule is restrictive or purely descriptive of normal practice. In this situation, to have a restrictive rule is contrary to the implicit objective of regulating with as little disturbance of normal behavior as possible.2 Primary suppliers of fuel oil were required to make a report to Washington each month, describing their fuel oil transactions during the calendar month. Many primary suppliers did not keep records or close their books on a calendar month basis. Their month might run from the tenth to the tenth, etc. Since it did not affect the success of fuel oil rationing whether primary suppliers reported monthly or calendar monthly, the regulations were amended allowing them to report in the way most convenient to them.3 Maintaining Normal Practice Described in the Rule Although it is important to describe practice, it may also be important to go beyond mere description and to guard against a change in normal practice which will be harmful to the program. An "industrial user" of sugar was defined in the sugar rationing regulations as a person who uses sugar to produce for sale a non-rationed article, such as pie or bottled beverage. These industrial users were rationed, too, and allowed a certain percentage of the amount of sugar they used during some past pre-rationing "base" period. In order to circumvent this restriction on the amount of sugar that they could purchase, industrial users, contrary to past practice, began to import large quantities of non-rationed, sugar-containing products, particularly sugar syrups. Some large industrial users established factories in foreign countries, converted local sugar into non-rationed syrup, and imported this syrup into the United States to be used as substitutes for sugar in the production of their products. This practice curtailed the amount of sugar imported and made available for rationing through regular channels of distribution. Consequently, the sugar rationing regulations were amended, May 1, 1944, to provide that no industrial user could use more imported, nonrationed sugar-containing products than he did in 1941 without having his allotment (ration) reduced accordingly.4 This amendment provided

12

THE PLANNING PROCESS

a restriction to keep practice from changing and forced practice back to normal. Changing Normal Practice May Be Necessary Although some rules simply prevent practices from changing and others change the practices of only a small number of people who deviate from group norms, it is frequently necessary, because of the logic of the regulatory purpose, to change a common practice of an entire group. A rule which attempts to do this is naturally less palatable and more difficult to enforce than a more descriptive rule. Prior to gasoline rationing, some bulk purchasers of gasoline sold gasoline to their employees, salesmen, and customers, thereby giving these persons the benefit of the bulk purchaser's discount. This practice was, for good reasons, prohibited by the gasoline rationing regulations. It persisted, however, and as late as August 29, 1944, was still an enforcement problem. A t this time, the chief of the fuel and consumer goods enforcement division requested the gasoline rationing branch to remind the industry through the gasoline industry letter that the practice was illegal. Sacri fice of Purpose to Normal

Practice

Whenever the rationing planners thought it was possible, they compromised the logic of their purpose to the convenience of normal practices. There was, however, considerable disagreement as to how far such a compromise could safely go. T w o instances illustrate this type of compromise. T h e original fuel oil rationing regulations provided that all rations for heating space or water should be issued in indefinite value coupons— coupons good for so many units, the value of which was subject to change, rather than for so many gallons, as printed on the face of the coupon. T h e smallest denomination of indefinite value coupon was for one unit, and the par value of the unit was ten gallons. It was discovered almost immediately that many small users of fuel oil customarily bought in less than ten-gallon amounts. They either had to surrender a tengallon (one unit) coupon for a smaller amount of fuel oil, thereby losing part of their rations, or bring their one unit coupons to the local board and exchange them for one and five-gallon definite value coupons. Although the logic of the fuel oil rationing program demanded that as many rations as possible be issued in indefinite unit value coupons which could be reduced in value if the supply fell off sharply and suddenly, the fuel rationing officials decided to conform the rules to the practices of

PROBLEMS OF TECHNIQUE

13

t h e small users and to issue their rations in one and five-gallon definite value coupons. 5 A similar situation occurred in sugar rationing. T h e sugar stamp was at first valid for one pound of sugar. Every two weeks another stamp was validated. These one-pound stamps caused considerable trouble to t h e trade because of the large number of five-pound packages in trade inventories. T h e one-pound package was in accord with the basic purpose of sugar rationing. It automatically budgeted the consumer's ration for him as he got a pound of sugar every two weeks; and it protected trade inventories by severely restricting demand at any one time—in other words, it prevented a run on the bank. However, because of the packaging problem, the sugar rationing officials finally gave a five-pound value to the sugar stamp and validated it for ten weeks instead of two. Changing Normal Practice for Purposes of Convenience

Administrative

In rationing, change of normal practice for purposes of administrative convenience was principally a matter of simplifying enforcement. Examples of this were the rules relating to the inventory check. T h e inventory check was the basic dealer enforcement device of rationing. Let us examine how this device worked out in fuel oil rationing. Each individual retail fuel oil establishment was required to be registered as a "dealer." Each "dealer" was given by the local board at the time of registration sufficient coupons to enable him to fill his tanks. Thereafter, if the "dealer" always received coupons when he sold fuel oil, and always paid coupons when he bought fuel oil, he would always have on hand fuel oil plus coupons equal to his storage capacity. T o detect black market activities, an O P A investigator had only to measure the oil in the "dealer's" tanks and count his coupons. Many fuel oil dealers had several establishments from which fuel oil was sold. Such a dealer would have a main office where his records and financial accounts were kept and a single bank account for all his establishments. However, the regulations prescribed that each of his establishments must be registered as a separate "dealer" establishment, with separate records and separate inventory accountability. This rule was issued to simplify the enforcement inventory check described above. If all the establishments were included within one registration, they would all have to be audited at one time to prevent shifting coupons from one to the other. Only then could the total inventory and coupon position of the whole company be determined. This would take more time, more investigators, and more trouble than the enforcement depart-

14

THE PLANNING PROCESS

ment felt it could afford. 6 On the other hand, complying with the single establishment rule increased expenses and trouble to the dealers. T o make the inventory check work better, the original rules provided that coupons must be surrendered or "paid" at the time the fuel oil was delivered, or very shortly thereafter. This was done, although the normal practice with regard to money payments was to bill and pay once or twice a month, to avoid a more difficult and lengthy audit by the investigator of accounts receivable and payable. When the fuel oil rationing regulations were amended, at the insistence of the enforcement department, to require fuel oil dealers to file a report of their inventory position every six months, the enforcement department insisted that each dealer establishment must file a separate report, even though the dealer with several establishments had only one ration bank account for all of them. 7 Compliance with this rule would have required many fuel oil dealers to make extensive changes in their accounting practices.8 Administrative Convenience Sacrificed to Normal Practice Whether a rule should be restrictive for purposes of administrative convenience was a basic issue between the rationing and the enforcement planners. W h e n enforcement officials wanted a more restrictive rule, in disregard of common practice, the rationing planners would resist. When the rationing planners wanted to make a rule more lenient or descriptive, in accord with common practice and at a sacrifice of administrative convenience, enforcement officials would resist. Nevertheless, at the insistence of the rationing planners, rules were frequently issued which sacrificed administrative convenience to common practice. The sacrifice of administrative convenience is clearly seen in the development of the credit provisions of ration orders. T h e original orders required that coupons be surrendered at the time the rationed commodity was received. In other words, no coupon credit was allowed at all. This refusal to allow credit transactions was very restrictive and contrary to the trade practice of monthly billings. One after another, as the planners realized the inconveniences such requirements caused to the trade, the orders were relaxed to allow payment of coupons after delivery. The fuel oil regulations were cautiously relaxed—first, allowing five days in which to make payment; then, fifteen days; and finally, in October, 1943, monthly coupon billings became actually possible. These relaxing moves were resisted by the enforcement attorneys because, in their view, they made their task of enforcement more difficult. They were welcomed by the trade, however.

PROBLEMS OF TECHNIQUE

15

T h e foregoing discussion may have created the impression that the enforcement planners always argued for a more restrictive (tighter) rule, while the rationing planners always argued for a more descriptive (looser) rule. This is not strictly true. Frequently rationing planners argued for "tightening u p " the regulations, but rarely, if ever, did enforcement attorneys argue for "loosening" the regulations. T h e willingness to sacrifice administrative convenience for public ease and convenience increased somewhat as time passed. This process of simplification could be seen best in successive revisions of some of the rationing application forms, a few of which became extremely simple to fill out but rather difficult for local boards to process. The Rule Should Contemplate

Non-compliance

There is another very important way in which the rule must be descriptive of human behavior. It must contemplate non-compliance. T h e importance of this principle is particularly noticeable in experience with the deadline technique. Ration Book O n e was issued originally between M a y 4 and M a y 7, 1942. Persons who did not register for the book at that time " f o r good cause shown" were allowed to register for it after M a y 2 1 . T h e files of the local boards were in such bad condition that it was impossible, in most cases, to detect duplicate issuance. T h e rationing planners had a strong feeling that a large number of duplicate books were being issued under the guise of late registrations. T h e y reasoned, therefore, that if they established a date beyond which no one could register for a book, duplicate issuance would be greatly reduced. Consequently, they amended the regulations to provide that after December 1 5 , 1942, no one (with certain exceptions, such as newly born babies) could be issued a ration book.® Assuming that everyone who had a right to a book would register and get it by December 1 5 , imposing a deadline was a logical approach to the duplicate issuance problem. However, everyone w h o had a right to a book did not register within the allowed time. Immediately after December 15, a great cry went up from Congressmen and the public denouncing this rule as inhuman, unconstitutional, and generally intolerable. Furthermore, many boards kept right on issuing books to persons they were sure should have them. T h e planners quickly realized they would have to do something. W h a t they did not realize, however, was that the weakness in the rule was its failure to contemplate non-compliance. T h e y extended the deadline for registration to January 15, "because," the rationale said, "the period of time within which consumers were permitted to register proved too short, and as a result many in-

l6

THE PLANNING PROCESS

dividuals, in part because of adverse weather and in part because of intervening holidays, were unable to register by December 15, 1942." 1 0 Of course, since the amendment which extended the deadline had the same basic flaw as the one which set the first deadline, the same thing happened all over, and on February 22 the deadline was permanently removed. 1 1 In its place a more careful procedure for examining late registrations was provided. T h e rationale contains a belated recognition of the pertinent facts of human behavior and a belated statement of the problem in its proper terms. It now appears that many consumers . . . did not learn within time . . . that they would not be permitted to register after January 15, 1943. Further, many . . . did not believe that they would need War Ration Book I under the existing circumstances. . . . In other cases it appears that it was impossible for some of these consumers to be registered by January 1 5 , 1943. Therefore, since these people should be permitted to register and there is no practicable general rule which could be laid down to take care of all cases, it appears desirable to remove the January 1 5 deadline and establish a procedure which will permit such consumers to be registered, but will guard against duplicate registration. Rules Describing Field

Behavior

Before concluding this discussion, one more situation should be mentioned where the problem of the relation of the rule to actual behavior became very important. It occasionally happened that the behavior of the field organization, particularly the local boards, became so at variance with the rules that the rule-makers changed the rules to correspond with this behavior. A n interesting example is the hardship quota in the gasoline regulations. Under the gasoline rationing regulations, when some unusual situation thought to be very important arose, a special gasoline ration could be issued sufficient for that single situation. For example, a ration could be issued to enable a person to move his car to a new address. However, visiting the sick or attending funerals was not listed among the purposes for which special rations could be issued. T h e rule-makers felt that these purposes were "sentimental" rather than "necessary." Local rationing boards were subjected to tremendous pressure to issue rations for these and similar purposes dear to the hearts of the people. M a n y boards responded to this pressure by issuing special rations in spite of the regulations. T h e gasoline eligibility committee considered this problem many times, but always refused to allow special rations for such purposes. Instead the committee suggested "a margin of discretion to the Local

PROBLEMS OF TECHNIQUE

I7

Boards taking care of cases not specifically covered by the Regulations but considered by them to be matters of local importance." 1 2 This discretion was to be controlled by giving boards "a definite quota of mileage . . . adjusted to the proper needs of each Board." The discussion of this problem as recorded in the minutes provides an interesting essay in administrative problem-solving. Most of it is quoted below. 1 . There is no disagreement as to the widespread practice of Boards granting special rations not authorized by the Regulations. It is generally reported that the most common extension of this extra legal privilege is to taie care of; a. Visits to the sick; b. Attendance at funerals; c. Gasoline for soldiers on furlough. 2. T h e Committee believes that only four possible courses are open: a. Enforce the Regulations strictly. This is theoretically the best course to be pursued. The difficulties are obvious. b. Amending the Regulations to permit the issuance of special rations in those cases where it appears that the Boards generally believe that rations should be granted. c. Allow things to go on as they arc with no attempt to bring the Boards in line. d. T o permit a small amount of discretion, controlled by a definite quota. T h e Committee thoroughly disapproves of a policy of continuing on the present basis. It recommends that if possible the Regulations be enforced by carefully instructing the Boards and by calling their specific attention to cases where they are acting outside of the regulations. 3. It has been brought to our attention that the Boards object to a quota system as giving them discretion which they do not wish to exercise. T h e fact is that many of them are excrcising the same discretion now but entirely uncontrolled. W e do not believe that the burden thrown upon them by discretion is any greater than the discretion they now exercise in deciding between various eligible persons within the limits of tire quota. T h e argument against changing the rules to make them accord with the behavior of the boards was presented by a dissenting member of the committee and recorded in the minutes: Widespread violation of the Regulations by Local Boards in issuing rations for the above purposes calls for a program of enforcement, not for a loosening of the Regulations. If such a program is, for any reason, impossible, maintenance of the status quo is still better than any attempt to legalize present Board illegalities. Under the present situation, Boards can keep down the issuance of special Rations for the purposes in question by maintaining secrecy in cases where they violate the Regulations and by pointing to the Regulations when they wish to avoid issuance. Of course, this means that Boards are able to play favorites to a large degree. However, we are in a situation where equity is less important than conservation. 13

l8

THE PLANNING PROCESS

The hardship quota provision was so completely a matter of legalizing (describing in the regulations) board behavior that applicants were not given "rights" to gasoline under the hardship quota provisions, and no appeal from denial was provided.14 The gasoline hardship quota proved to be a very successful and popular technique. Not only did it keep "horror stories" to a minimum, but it also eased the strain on the war-weary consciences of the gasoline rationing planners. Many a tough eligibility problem was "solved" in their minds by the simple statement, "The Boards can take care of that under hardship." ADMINISTRATIVE VS. LEGAL TECHNIQUE In the past, a very important government technique for regulating human behavior has been the technique of the law. A legal rule is issued stating the way people are to behave, and they are induced to obey the rule by penalties applied by adjudicative bodies (either "administrative" or "judicial") that determine what the rule means and whether the individual has in fact violated it. These bodies operate typically after the violation occurs. Administrative officials are charged with the responsibility so to direct human behavior that certain national objectives will be achieved. It is often small compensation for them to see persons who violate their rules punished. They must seek to prevent the violation in the first place. They cannot always afford to be crusaders bent on punishment of "wicked" persons. The tremendous number of persons and relationships regulated makes recourse solely to adjudicative bodies completely impractical. Administrative officials are often forced, instead, to utilize basic human drives and motivations so that individuals will choose to obey the rules because of their own self-interests. This non-legalistic approach to the problem of controlling human behavior is what is meant by the administrative technique. Recourse to the administrative technique may be necessary because of the alleged lawlessness of the American people. More important, however, is the fact that a new regulatory program prohibits many things which yesterday were allowed. Furthermore, such a program changes rapidly. In this situation, it is almost impossible to keep people fully informed of their obligations, and to convince them that what was right yesterday is wrong today. For example, late in the fuel oil rationing program, the regulations were amended to provide that fuel oil suppliers outside of the rationed area must report to Washington each month the amount of oil shipped into the rationed area and the suppliers to whom it was shipped. One supplier wrote to

PROBLEMS OF TECHNIQUE

19

inquire as to the consequences for failure to file the report. H e said that government reports were becoming so burdensome that he thought it might be cheaper for him to pay the penalty than to file the report.

Administrative Technique Illustrated One of the best examples of the administrative technique was the basic mechanism of rationing—the flow-back of ration coupons. Since any dealer in rationed commodities had to pay coupons to his supplier when he replenished his stock, if he sold on the black market without collecting coupons, he soon sold out his entire stock. T h e n , not having coupons with which to replenish his stock, he had to close shop. His interest in staying in business was thus made the basic sanction for complying with the rationing regulations. This sanction operated in the same manner all the way back up the pyramid of the trade until it reached the person who made the rationed article. Here the "legal" technique took over; the ultimate supplier was subject to the penalties of the law. There were, however, very few of these ultimate suppliers, and they could be and were audited by O P A investigators. Although the basic regulatory technique of coupon rationing was itself administrative rather than legal, 1 5 there were many rules within the various rationing programs which indicated a certain unawareness of the distinction between these two techniques. T h e discussion and cases in the balance of this section illustrate this unawareness, the difficulties and confusions it causes, and elaborate more fully the distinction between the two techniques.

Use of Legal Technique Where Redundant Frequently the legal technique was superimposed on a situation which was already completely and effectively controlled by the administrative technique. Here the "legal" rule did no harm but was unnecessary. A n example of such an unnecessary rule was Section 1407.92 (b) of the original sugar rationing regulations. A n industrial user of sugar was defined as a person who used rationed sugar to make for sale a nonrationed article. A t the start of the sugar rationing program, industrial users registered and declared how much sugar they had used during some past "base" period and how much sugar they had on hand. T h e y were given allotments (rations) every two months equal to a certain percentage of the corresponding base period use. T h e amount of sugar an industrial user had on hand when he registered was deducted from his first and subsequent allotments until it was used up. W h e n it was used up in this fashion, he received further allotments in the form of

20

THE PLANNING PROCESS

ration currency. Thus, if an industrial user used the inventory of sugar he had when rationing began faster than his allotments allowed, he would eventually be forced to close down temporarily for lack of sugar. He would not receive any ration currency until the total of his accumulated allotments was greater than his original inventory of sugar. The self-interest of the industrial user would quite effectively prevent him from using his sugar any faster than OPA wanted him to use it. Despite the fact that this situation was controlled effectively by the administrative technique, someone felt that there should also be a legal obligation on the industrial user to do what was a practical necessity. Therefore, Section 1407.92(b) was added, prohibiting, under penalty of law, an industrial user from using more sugar during an allotment period than the amount allotted plus any left over from previous allotment periods. This rule certainly could not do any harm to the program. On the other hand, it is difficult to believe that it had any effect on the behavior of industrial users. Nevertheless, this rule, ineffective and useless though it was, went through a refinement five months later. It occurred to someone that an industrial user might receive, and use part of, his allotment before the beginning of a period, and this rule would allow him to use an amount equal to his allotment during the period plus the amount he used in advance of the period. Consequentlv, Amendment 84 was issued to provide that "sugar used under an allotment before the beginning of the allotment period for which that allotment was granted shall . . . be deemed used within the allotment period for which it was granted." 18 Thus, considerable time was spent planning and refining a rule that was not needed in the first place. Confusion of the Two

Techniques

An intermixture of the "legal" and administrative techniques frequently results in confusion and uncertainty both on the part of the persons to whom the rule applies and of those who apply it. A good example was the report of delinquency adopted late in the fuel oil rationing program. A purchaser of fuel oil was given a certain time to surrender ration currency in payment for the fuel oil. As in any credit situation, there were some bad accounts which were difficult to collect. In September, 1944, an amendment was issued which attempted to "tighten up" this situation.17 This amendment mixed up the "legal" with the administrative techniques. It provided in a new Section 1394.5712 an absolute legal obligation, under penalty of law, that "a dealer or primary supplier to whom a transferee has failed to surrender evidences [within the time required] must, within seven (7) days there-

PROBLEMS OF TECHNIQUE

21

after, notify in writing the District Office." It also provided an administrative technique to insure the collection of evidences, which was the objective to be achieved. It stated that a supplier could not deliver oil to a delinquent account unless he "has complied with Section 1394.5712." Now actually this turned out to be a very faulty application of the administrative technique, as will be explained, but first let us examine the ambiguities and confusions created by the absolute legal obligations to file the report within seven days. As soon as the amendment was issued, the field organization began to inquire whether this amendment allowed seven more days of credit. That is, after an account became delinquent, could a supplier continue delivering oil for six days and then make the report on the seventh day? The fuel rationing officials decided to remove this specific ambiguity by amendment. The source of the confusion, which was the absolute obligation to report within seven days, as will soon become clear, was not removed. The new amendment provided that a supplier could not deliver oil unless he "has filed the report specified in Section 1394.5712." 18 This amendment made it "clear" that the supplier could not continue delivering oil for six days after the account became delinquent, but the basic ambiguity was still there. What would happen if the supplier filed the report on the eighth day? He certainly had not complied with the absolute obligation of Section 1394.5712. And since he had not complied with the section, he could not deliver any more oil to his delinquent customer even if the customer paid up and started paying in advancc of delivery. A supplier's careless delay in filing a report amounted to an unintentional suspension of the customer from further receipts of oil, because it would be extremely difficult if not impossible for the customer to find a new supplier under the conditions and controls imposed by the war. When the earlier amendment was being discussed, the chief of the fuel and consumer goods enforcement division was opposed to the provision requiring the report within seven days. He said the amendment should "permit transfers . . . on condition that [italics mine] the transferor reports delinquents." 19 He urged this, however, for the very interesting reason "that suspension order proceedings brought for violations for failure to report delinquents might avoid encounter with the Federal Reports Act of 1942, which you know places some restrictions on suspension order proceedings for violations of reporting requirements." By making further deliveries to the delinquent conditioned upon filing the report, he argued, "the transferor would be charged with the violation of the transfer sections . . . rather than failure to com-

22

THE PLANNING PROCESS

ply with a reporting requirement." H e said he would ask the research and opinion branch for an opinion on this point. There was no enforcement opposition to the amendment when it was issued six months later. As stated above, the administrative technique was not properly applied to this situation. T h e objective was to avoid or reduce sales of fuel oil without the exchange of ration currency because of the delinquency of credit accounts. Suppliers obviously did not like delinquent accounts; on the other hand, they did not want to antagonize their customers by pressing ration currency collections too hard. T h e suppliers needed a collection club provided in the regulations which shifted the onus from them to O P A . T h e rationing officials knew these facts very well. T h e report to the district office was to be such a club. T h e supplier could say to his customers, "If you don't pay up, I will have to report you to the O P A . " However, the requirement that the report be filed in seven days changed this from a collection tool to an absolute legal obligation and created a new and unnecessary possibility for violation on the part of the supplier. H e became a potential violator of the ration order because of the delinquencies of his customers. If the amendment had merely provided that the supplier could not deliver any more oil to the delinquent until he had reported him, it would have been just as effective a collection tool and would not have created a new source and hazard of violation for the supplier. However, since the objective was to reduce the delinquencies, it should not have been necessary to report a delinquent who paid up. Therefore, the rule might better have been stated: a supplier cannot deliver oil to a delinquent customer until he reports him to the district office or until the customer pays up. T h e interest of the customer in getting oil and in avoiding a report of his delinquency to O P A would induce him to pay his ration currency debt. T h e interest of the supplier in staying on friendly terms with his customer would induce him to try to collect the ration currency rather than report him to O P A ; also, he had to have the currency in order to replenish his stock. His interest in continuing to sell fuel oil to his customer would induce him to report the customer to O P A if he could not collect the ration currency because after reporting the delinquent customer he could continue to sell fuel oil to him on a cash basis. T h e report to O P A would simply be a safety valve. A similar confusion of the two techniques occurred tion of industrial users of sugar at the beginning of users were required to report by a certain date, or they ture allotments of rationed foods. Thus, according to

in the reregistra1945. Industrial could get no futhe law, if they

PROBLEMS OF TECHNIQUE

23

filed late, they were theoretically put out of business for the duration of the war. This case is discussed below, page 54. Adoption of Administrative Technique When Legal Technique Failed The "legal" technique frequently failed to solve a problem the solution of which became very important to the success of a program. An effective administrative solution had to be found. When a rationing program was being planned, the planners often did not know what the important problems were going to be. Furthermore, they worked under such pressure of time that they could not develop the more intricate administrative technique in many areas of the program. They concentrated, and rightly so, on the more obvious problems and those with larger scope and immediate importance to the program's success, such as the flow-back of ration coupons. Therefore, many small obscure problems were left to be solved by the attorneys who drafted the ration orders. When one of these problem situations occurred to them, they "covered" it with a "legal" rule. Sometimes these obscure problems later developed into problems of serious proportions. Such was the case with stolen and counterfeit coupons in both gasoline and sugar rationing. So serious did the counterfeit problem become in gasoline rationing that at one time an estimated 5 per cent of all gasoline sold was in exchange for counterfeit and stolen coupons. The rationing rules, of course, prohibited stealing and counterfeiting or using stolen and counterfeit coupons; so did the U.S. Criminal Code. However, even with the F.B.I, and the Secret Service helping out, O P A investigators could not suppress this traffic. T h e enforcement department was compelled to seek a new technique. It developed the debiting program, which was use of the administrative technique in a highly developed form. The debiting program as it applied to sugar rationing is described in the following paragraphs.20 Before a dealer turned over his stamps to his supplier, he pasted them on gummed sheets. All the stamps could then be seen at a glance and their validity and total value quickly determined. He endorsed his name and the date across the top of this gummed sheet. When the supplier (wholesaler) received these gummed sheets in exchange for sugar, he endorsed them and deposited them in his ration bank account. After that they were recorded at the bank and credited to the supplier's account; they were then sent to O P A verification centers where trained personnel examined them. If any of the stamps were invalid—that is,

24

T H E PLANNING PROCESS

counterfeit, or used before or after they were valid for use—the bank account of the supplier who deposited them was debited in the amount of the invalid stamps. Both the supplier and the dealer who originally accepted these stamps were notified. T h e supplier was told that he had to obtain valid stamps from the dealer equal to the amount of the debit. T h e dealer was told that he had to pay valid stamps to his supplier equal to the amount of the debit. His allowable inventor)' was reduced accordingly. T h a t is, the total value, in pounds, of stamps plus sugar that he was allowed to have at any one time was reduced by the amount of the debit (the value of the invalid stamps that he had accepted). This debiting program was an excellent application of the administrative technique. T h e supplier's interest in restoring the debit, and thereby his sugar purchasing power, induced him to try to collect valid stamps from the dealer. However, in the debit program as it originally went out, there was a weakness in the motivation for the dealer to pay valid stamps to his supplier equal to the debit. T h e only administrative sanction or inducement for payment was the provision that a dealer could not receive a restoration ("bail-out") of the reduction in his allowable inventory until he paid the valid stamps to his supplier. However, not only was the restoration procedure extremely complicated and cumbersome and regarded by many dealers as a trick to trap them into an admission of violation, but it was technically deficient as an inducement for quick payment of the valid stamps. T h e dealer would only need the restoration if he paid the stamps. T h e way to avoid the restoration procedure, of which he was afraid, was to fail to pay the valid stamps. Thus, restoration, instead of being an inducement, tended to operate as a deterrent. Failure to provide sufficient motivation for dealer payments was the weak spot in an otherwise efficient administrative technique. It was corrected two months later by an amendment which provided that "no person shall deliver sugar to any registering unit which h e knows or has reason to know" has not paid the required valid stamps to a debited supplier. 21 Since most suppliers would want to stop shipment to a dealer who refused to pay the valid stamps, which the supplier needed to restore his sugar purchasing power, this provision required the supplier to do what he wanted to do anyway. It gave him a collection club with the onus of collection shifted to OPA. T h e debiting procedure was extremely effective. In a very short time counterfeiting had practically disappeared. Dealers would not purchase counterfeit coupons because they were certain to have their inventories reduced if they did. T h e process was almost completely automatic. So

PROBLEMS OF TECHNIQUE

25

f a r as the counterfeiters were concerned, peddling their wares through individual consumers was too costly and dangerous to be profitable. O n the other hand, the debiting procedure also illustrates a certain danger in the administrative technique. A dealer who received single counterfeit coupons from individual customers, rather than blocks of them from a counterfeiter, could not tell the coupons were counterfeit. Nevertheless, his inventory was reduced and, hence, his ability to operate profitably. This situation conflicted with one of our basic notions of justice— the notion of no liability without fault. W h e t h e r this sacrifice of individual rights to the national purpose of stamping out counterfeiting was justified is a question which different individuals will answer differently. T h e fuel oil rationing program provides another example of a situation where the "legal" technique failed, and the planners sought an administrative solution. O n e of the problems which the original planners failed to solve and which the drafters consequently "covered" by "legal" rules was population turnover. T h e consumer was given his heating ration for use at a particular address in the particular equipment described in the application. W h e n an occupant moved from an address, the new occupant applied and was issued coupons for his heating ration at that address. If the former occupant took his coupons with him, there was a chance that those coupons would be used, thereby inflating the rationed demand for fuel oil to that extent. Since population turnover was extremely high during the war, some estimates as high as 20 per cent, the danger to the rationing program inherent in this situation is obvious. T h e attorneys drafting the original order "covered" this situation, by default of the rationing planners, with a series of mandatory rules imposing absolute legal obligations. 22 If a tenant moves, he "shall immediately . . . surrender the coupon sheet to the owner of the premises; the owner shall demand the coupon sheet." If an owner moves, He shall at the time of such change in ownership, surrender the coupon sheet to the new owner; the new owner shall demand such coupon sheet from such former owner. . . . Within five ( 5 ) days after such surrender of a coupon sheet, the person to whom it was surrendered shall forward it . . . to the issuing Board. . . . If a person is unable to surrender a coupon sheet as required . . . he shall surrender it to the issuing Board within five ( 5 ) days. . . . If the person required to demand a coupon sheet is unable to obtain it . . . he shall immediately notify the issuing Board. If any individual fuel oil consumer ever knew about these obligations, he was probably informed by his own sense of propriety and not by the

26

THE PLANNING PROCESS

written rule appearing in the Federal Register or any place else. Nevertheless, these rules were the "expressed will of the administrator," theoretically canying with them severe penalties for violation. If a tenant slipped away before the owner could "demand the coupon sheet," the owner was in violation (though not willfully) of the ration order. If a tenant could not find the owner to give him the coupon sheet when he moved and, consequently, sent it to the board six days later, he was in violation of the ration order which required him to "surrender it to the issuing Board within five ( 5 ) days." How long he had to look for the owner before he became "unable to surrender a coupon sheet" would have to be left to his own conscience, with the hazard that his conscience might not agree with O P A ' s , whereupon he would be in violation. Ineffective and useless though these rules were in solving the population turnover problem, they were taken seriously and occasionally refined to keep them legally consistent with the rest of the order. 23 They failed to " c o v e r " one situation. W h a t if the owner moved away but did not sell his house to anyone? Consequently, when the ration order was revised in February, 1944, another rule was added which "covered" this situation. W h e r e the owner moves " a n d no other person has acquired control over the equipment, the coupon sheet shall be surrendered to the issuing Board within twenty (20) days." 24 Procedure analysts in the fuel rationing division had realized for some time that the population turnover problem had never been solved. They regarded the "legal solution" described above as no solution at all— as completely without effect. A n administrative solution which partially solved the problem was finally reached in September, 1944. Provision was then made for boards to issue annual heating rations to space heater applicants in installments rather than in one l u m p as had always been done before. 2 5 (Population turnover was greatest among those consumers who were, in general, the working classes.) Under this procedure, if one of these consumers moved, he would not take his whole annual ration with him but only the unused part of his current installment. If the inflation of demand due to population turnover was checked or reduced at all by rules issued from Washington, it was because installment rations were issued and not because of the legal obligations of the original rules. T h e most effective solution of this problem, however, was accomplished by some local boards without the benefit of a national rule. M a n y boards simply refused to issue a ration to a new occupant until he brought in the coupons of the previous occupant. T h e administrative technique is a necessary approach to the problem

PROBLEMS O F TECHNIQUE

Ζη

26

of modem, large-scale regulation. W h a t chiefly stands in the way of its development are inherited notions of law, government, values, and problem-solving—all of which will be discussed in the following chapters. R E G U L A T I O N BY I M P E D I M E N T A In the process of regulating human behavior, the technique of throwing discouraging obstacles in the path of "undesirable" behavior will probably always be used, either consciously or unconsciously. These obstacles act as a dam to deflect the currents of behavior into desirable channels. Whenever there is a favor to be granted or a privilege to be conferred, the fact that people have to find out where to apply, have to go there to apply, have to apply by filling out a form (more often than not, long and complicated), tends to discourage many from seeking that favor or privilege. This is regulation by impedimenta. If one of the purposes of rationing was to depress demand for a scarce article (thereby supporting the price ceiling), the whole rationing program, with its many application forms, its certifications, its currency, its trips to local boards and waiting in line for rations, was one gigantic system of regulation by impedimenta. The very fact that a rationing program existed, whether or not it was a good one, had a depressing effect on demand. Certainly this was true of the certificate programs which rationed automobiles, tires, bicycles, typewriters, and stoves. The difficulties of getting a certificate (the right to buy), the belief that they probably could not get one anyway, kept many people from trying to get one. Although it is probably true that any person who filed with a board an application stating that he had no stove, or that his stove was not repairable, could get a stove certificate, boards were not swamped with stove applications. The coupon rationing technique of giving everyone equally a "basic" ration regardless of need and then requiring applicants with special needs to return to the local board and make a special case, was not only an administrative device to reduce work load at the time of original issuance; it also acted as an impediment. Many people who would have liked larger rations never bothered to come back for a supplemental ration. Some of the rationing officials invented an aphorism to characterize this aspect of rationing: "The meek shall inherit the dearth." Only the bold and the exceedingly needy came back. If the purpose of rationing was distribution than (or in addition to) mere depression of the impedimenta device may be questioned. exceedingly needy came back, it worked in

according to plan rather demand, the validity of To the extent that the harmony with this pur-

28

THE PLANNING PROCESS

pose. T o the extent that the bold came back, it defeated the purpose of planned distribution (unless the plan was to distribute to the b o l d ) , although it depressed demand. Despite this objection, there are some situations where the impedimenta device is the most practicable solution. T h e fuel oil rationing program was inaugurated in an atmosphere of hostility and criticism, both from Congress and the public. It was complicated and had been difficult to install. M a n y individual instances of injustice, generally due to error in issuing the ration, were brought to light and aired in public. T h e T r u m a n Committee published a very critical report, December 1 1 , 1 9 4 2 . " In February, 1943, a Senate Special Committee to Investigate Gasoline and Fuel Oil Shortages informed the public that " W h a t e v e r one's view of the theory underlying the system of calculating the ration, in practice it has collapsed." 28 In this atmosphere, the rationing officials were extremely allergic to the horror story. Daily, as winter advanced, they feared that they might hear of some person who had run out of both oil and valid coupons, had caught pneumonia, and had died. T h e y needed some device which, if this situation threatened, would make it possible to get oil in a hurry. A t least, if a person could not get oil, it would not be the fault of the rationing officials. Consequently, they amended the regulations to provide that any consumer facing an emergency "involving serious threat to life, health or valuable property" could get a delivery of oil up to 1 0 per cent of his ration but not more than fifty gallons, without surrendering coupons. 20 He had to give up to the dealer coupons not yet valid, if he had any, and, in any event, he had to sign a coupon note to the dealer on a specially prepared O P A form—R-555. H e could accept only one such delivery during the year. Dealers were to collect coupons next to become valid or get valid coupons at the next delivery. T h e danger of abuse in this procedure was that dealers might use it to increase sales rather than to prevent hardship. T h e small size of the delivery—fifty gallons or less—would discourage this practice somewhat, since small deliveries are expensive for the dealer to make. T h e planners, however, wanted even more impediment than this in the path of abuse, and so they provided that the dealer had to bring the valid coupons, when he collected them, to the board along with the note, R-555. If the board was satisfied that the emergency delivery had been made according to the regulations, it issued inventory coupons (another type of coupon of larger denominations) to the dealer in exchange for the customer's coupons which the dealer had collected and the coupon

PROBLEMS OF TECHNIQUE

2Ç

note. T h e sheer administrative difficulties (impedimenta) in the path of the dealer under this procedure would discourage abuse. 30 During the first part of the heating year, the only way for a consumer who was out of valid coupons to get oil was for him to take his coupon sheet to the board and exchange coupons not yet valid for currently valid coupons. 3 1 H e had to fill out an exceedingly complicated application form ( R - 1 1 0 4 ) , bring a certification from a heating engineer showing what had been done or could be done to maximize the thermal efficiency of his house and equipment, and certify that he had not maintained a temperature in excess of 6 5 ° F . and had done everything he could to increase the thermal efficiency of his house and equipment. Since exchange of coupons not yet valid for valid ones did not in any way increase his ration, he had to keep coming back to the board for these exchanges. T h e administrative difficulties of getting additional oil encouraged people to try to live within their rations. T h e impedimenta technique, of course, has definite limits, and failure to recognize them can result in confusion. Such a failure occurred in the treatment of the lost ration book problem. T h e original sugar rationing regulations provided that a consumer who lost his Ration Book One could apply to the board for another. 3 2 " T h e Board, in a proper case, shall grant the application. . . . Under no circumstances shall any person be issued a W a r Ration Book to replace one that has been lost . . . until a period of not less than two months has elapsed since the date when he applied." This procedure was based almost entirely on impediment. T o get a replacement book was made a discouraging nuisance. T h e rationing officials, however, soon began to feel that this procedure was inconsistent with the idea of equitable distribution of sugar. A person who really had lost his book should have received another one immediately; whereas the person who had not lost his book should not have received another even after waiting two months. Nevertheless, such a procedure would discourage some people from trying to get a second book. Still others would find their book during this period and would not come back at the end of two months. T h e inconsistencv pointed out above, however, is inescapable. Shortly after the program started, the rationing planners attempted to remove this inconsistency while still retaining the impediment. T h e result was ver)· confusing. T h e y changed the rule to read: The Board shall not issue a W a r Ration Book . . . to replace one that has been lost . . . until a period of not less than two months has elapsed since the date of the application. . . : Provided, That in a deserving case a War

•ρ

THE PLANNING PROCESS

Ration Book . . . may be issued . . . before the expiration of such two month period if the Board is satisfied beyond reasonable doubt that such War Ration Book . . . was lost.33 Whatever else this rule accomplished, it certainly must have created some interesting speculations in the mind of any board member who read it. Did it mean a board could issue a book immediately if it had only a little bit of doubt ("reasonable doubt") about the application? If it had a stronger doubt, did it have to wait two months? W a s it to issue a book at the end of two months if it had a strong doubt at that time? Did the whole procedure mean that the board had determinative discretion for books issued in less than two months, but everybody had a right to a second ration book if he waited two months after applying for it? Actually, the board member could know what Washington wanted him to do. He would be informed, however, not from the written rule but from his own sense of proportion. He would not follow the written rule, but he might follow its spirit. He would handle applications for replacement books very carefully. If he were certain an applicant was telling him the truth, as where the charred but identifiable remains of a burned book were shown him as evidence, he would issue a replacement book immediately. If he were not certain about the truth of the applicant's statements, he would wait and see. T h e applicant might find his book in the meantime or get discouraged about "cheating" the government and never come back. If the applicant kept coming back, if his arguments had a sincere ring, if his face were honest, the board member would issue him the replacement book. T h e time involved might be more or less than two months. By seeking justice in the individual case, the planners had, in effect, removed the two-months impediment from the procedure but left in the written rule the words describing it. T h e impediment device as used in a general rule is nonselective; it has an "overall" or statistical effect. It is not designed to mete out justice in the individual case. Failure to appreciate this resulted in the confusion described above. Further changes were made in the replacement procedure until the final rules sought to accomplish justice in the individual case rather than to depress demand for replacement books by the use of impedimenta. They were much more in harmony with what the rationing officials felt was their basic purpose—distribution of scarce commodities according to plans in which a consumer's boldness or brazenness had no place. In fact, the history of the lost-book problem is part of the history of that purpose striving for conscious expression in the rules.

PROBLEMS OF TECHNIQUE

RULE-MAKING F O R PSYCHOLOGICAL E F F E C T In one sense, all rules are issued for their psychological effect. It is expected that behavior will be influenced in accordance with a plan or rule. But some rules may be issued for the conscious purpose of helping to create a general public attitude more harmonious with the basic objectives of a program. One of the important effects of any rationing program was to teach people to get by on less. They learned to conserve. Given a less than sufficient supply of a commodity and the need to have a popular program, the planners were forced to take an active interest in promoting conservation.34 One of the chief techniques was to maintain a pessimistic outlook about the supply situation. Particularly was this true in fuel oil rationing. T o understand how important pessimism was to this program, it must first be realized that, in a very real sense, fuel oil rationing was a gigantic bluff. Once the fuel rationing officials had accepted the proposition that they could let no one go cold, then anyone who used up his ration had to be given more fuel oil coupons. He was given more coupons under the hardship ration provisions. The condition for obtaining a hardship ration was the condition of being out of oil and coupons. Although the applicant was also supposed to have maximized the thermal efficiency of his house and equipment, this test had little or no practical effect. As Dean and Vass say, "By now, it was realized that consumers who couldn't or wouldn't convert [from the use of oil to coal] couldn't be allowed to freeze or forced to move. In fact, the hardship amendment was really designed to take care of any consumer who ran out of oil, despite the efficiency test." 35 Therefore, if every fuel oil consumer had chosen to burn oil just as fast as he ever did, there would have been no fuel oil rationing. Consumers, generally, did not do this. They believed they would not get more oil if they did. Instead, they practiced conservation. In this sense, the fuel oil rationing program was a great fuel conservation program operated chiefly by bluff. One of the factors which encouraged fuel conservation was the belief that oil was scarce (which it was). The rationing officials knew this and consciously sought a pessimistic press. They continually ruffled the feelings of the OPA information department by rewriting the press releases that were prepared nearly every time an amendment was drafted. Whenever a change was made in the program, the information department wanted to emphasize the optimistic aspects of the change to gain good will towards OPA. The rationing officials, on the other hand,

32

THE PLANNING PROCESS

wanted to stress the pessimistic side of any change because public optimism tended to defeat the objectives of fuel oil rationing. For example, there were a few times when the unit value of the coupons was increased by one gallon. Although there may seem only the remotest possibility of using such a change to promote pessimism about the supply outlook, the fuel rationing officials insisted on a press release which went something like this: " 'Although an unusually severe winter has made it desirable to increase the unit value of the fuel oil coupons in the Northeast, the exceedingly dark supply outlook has made it necessary to increase the value of these coupons by only one gallon,' the O P A announced today." In their desire to maintain a pessimistic attitude about supply, the rationing officials issued some rules whose chief, if not sole, effect was to create this public pessimism. These rules, while they did not actually affect behavior in a direct way, were accompanied by pessimisticpress releases. For example, late in 1944, P A W (Petroleum Administration for W a r ) became convinced that the market was glutted with residual fuel oil (the heaviest type). Consequently, P A W requested that persons who burned residual oil be allowed to get a ration for whatever amount they needed. T h e fuel oil rationing regulations were amended to accomplish this result in November, 1944. 30 Since rations for the coming heating year had already been issued, any person who burned residual oil was allowed to reapply and have the ration cut restored. Shortly thereafter, P A W became convinced that there was going to be a severe shortage of residual oil, and they requested that rations for users of residual oil for heating purposes be reduced. Consequently, the regulations were amended to provide that these consumers receive rations for less than their normal needs. 37 N o attempt was made to recall and reduce the rations already issued. Residual users had, naturally, reapplied after the first amendment and had received rations for their normal needs. Therefore, no more applications would be made for residual rations that year, and hence, for all practical purposes, this amendment could have no appreciable effect on demand for residual oil. W h e n this fact was pointed out to the director of the division, he said that it was not important. T h e amendment would, he said, have a good psychological effect on the public; it would emphasize the shortage of fuel oil and, hence, the need for conservation and compliance. Other examples of the use of rules purely for their propagandist^ effect could be found in other rationing programs. This technique was unquestionably effective. It had one unfortunate result, however. It was just one more irritation to the field staff and tended to make them lose

PROBLEMS OF TECHNIQUE

33

respect both for the Washington office and for the rules. Officials in the field saw the rule itself, and not the hidden motives or purposes of the rule-makers. PROBLEMS OF

SUB-DELEGATION

T o obtain the ultimate behavior of the regulated persons O P A usually had to depend upon the activities of intermediate persons, especially the field staff. W h e n the part to be played by the intermediate persons involved decisions which were not completely determined by the plan, a delegation had to be made. Delegation to Local Ration Boards of the Power to Pass on Applications T h e basic delegation of the rationing rules was delegation to local volunteer ration boards of the power to pass upon individual applications for ration currency (rations, allowable inventories, allotments, inventory restorations, etc.). T h e official rationalization for this delegation was that local boards were "committees of neighbors." T h e board members, being representative local volunteers, knew the individual conditions of the applicants and, therefore, could ration them justly and sensibly. This was the purest self-deception in the case of any but the very small rural boards. T h e board members in the urban boards, with jurisdiction over much the greater portion of the people, did not know an individual applicant from Adam. Furthermore, a large proportion of the rations were determined by board clerks who were on the federal payroll, subject to federal discipline, and who were no more part of a committee of neighbors than a clerk in a local post office. This basic rationing delegation to local, volunteer, representative boards was nonetheless a wise one. T h e unfamiliar, restrictive controls of rationing were much more palatable when local, unpaid citizens stood between them and the community than would have been the case if the controls had been applied by paid officers of the federal government— bv "bureaucrats." T h e board member could always tell a disgruntled applicant that he, the board member, did not ask for his job; that he was getting nothing out of it; that he was only doing it for patriotic reasons. T h e applicant, rather than feeling angry, would feel ashamed. T h e sins of the local boards were never a strong club with which to bludgeon OPA, because the local boards represented the great American ideal of self-government. It is doubtful, furthermore, that any other type of organization could have been set up within the very short time permitted by the emergency

34

THE PLANNING PROCESS

of war. Certainly, to establish such an extensive organization under the administrative rules and procedures of the federal government would have taken several months. Finally, the idea of the volunteer worker was promoted best through the board organization. Only by the use of volunteers could O P A obtain the flexibility of manpower necessary to meet the tremendous and fluctuating work load imposed by the rationing programs. T h e weakness of the local board system was obvious to everyone. T h e board members, being volunteers and often substantial members of their community, were extremely difficult for O P A district offices to control. Unpopular rules or instructions frequently were nullified. Strong action on the part of the district office brought forth threats of resignation. As a one-time N e w York regional rationing attorney summed up: "There was no method by which they could express their dissatisfaction, with the result thereby that they either refused to act, or threatened to resign, if they felt grieved." 38 T h e result of this situation was considerable variation in the interpretation and application of the rules. In effect, the American people, during the war, sacrificed the sacred principle of uniform treatment for the principle of local self-government, and did this without batting an eye. There is, however, considerable evidence that local board members liked the importance and authority attached to their positions—that in most cases they would not have resigned if the district offices had called their bluff. District offices probably could have exercised a great deal more control over local boards and could, therefore, have achieved a far greater uniformity in the interpretation and application of the rules. A few district offices did exercise such control. One half of the basic structure of delegation in rationing was delegation to local ration boards of the power to pass upon applications for ration currency, as we have seen. T h e other half of this basic structure was retention of the rule-making or planning function in Washington. T h e many departures from this basic structure and the reasons for them will be described in the following paragraphs. Abdication of the Planning

Function

Generali}·, Washington rationing officials preferred to issue very specific rules that left little or no discretion to local boards. Occasionally, however, they were unable to figure out all, or even most, of the details of a problem. Sometimes they gave up entirely and abdicated the planning function in favor of the local boards or other levels of the field. In

PROBLEMS OF TECHNIQUE

35

such cases the rules that went out were extremely general and carried with them a great deal of discretion. A good example of abdication of the planning function is the final fuel oil space heater formula. T h e formula for determining fuel oil rations was developed through a study of a large number of houses heated with furnaces—not with space heaters (more commonly called stoves). It was soon discovered that the formula resulted in issuance of space heater rations for amounts considerably greater than most applicants required. W h e n the rations were being reissued for the second year of rationing, the N e w York region scrapped the formula, with the approval of some of the rationing officials in Washington, and applied a formula of its own, completely outside of the regulations. T h e Washington office had been unable to figure out a new formula before reissuance time. T h e N e w York region even designed its own application form. T h e New York formula reduced space heater rations, according to the regional office, by 35 per cent of what they had been the first year. T h e Washington office then decided to recognize the principle of field determination of space heater rations. They changed the regulations to provide that boards should issue to space heater applicants two thirds of normal requirements (as determined by the board) but not more than a fixed maximum. 3 0 A n instruction went along with the amendment suggesting ways to set the ration below the ceiling. This new "formula" was an abdication to the field. T h e space heater " f o r m u l a " for the 1944-45 y c a r > the last year of rationing, was even more of an abdication. It was a complete admission that the Washington office could not solve the problem of rationing space heaters. This final " f o r m u l a " provided that the applicant could get fuel oil sufficient for his "minimum needs" but not more than the ceiling provided for his floor area as shown in an new table—Table IX. 4 0 T h e board instruction carried the rest of the story. "First find the maximum heating allowance from Table I X . . . for the applicant's floor area ceiling. T h e n . . . decide how much less the applicant can be given without causing him serious hardship. T h e District Office will guide the Board in making this second determination." District offices were instructed to have the boards issue rations as far below the gallonage figures in Table I X as they could. T h e Washington instruction suggested a flat 20 per cent cut below the table, pointing out that if the consumer ran out of oil he could come back and get more up to the Table I X ceiling. Some district offices had reduced space heater rations as much as possible

36

THE PLANNING PROCESS

the previous year, outside of the regulations, and simply reissued these rations. Others issued space heater rations for the 1944-45 heating year under their own formulae, subject to the ceilings in Table IX. Still others let the boards follow their own conscicnces. As the chief of the fuel oil branch at that time said: "In effect, Washington delegated all discretion to the Boards, admitting that we had no scientific basis for setting the ration." 4 1 Delegation to Allow Field to Determine Its Own Work

Load

Another type of delegation can also be illustrated from fuel oil rationing. This is delegation to allow field offices to determine their own work load. All too often in rationing programs, delegations were made without this idea in mind, and field offices were swamped by a casual and careless delegation. In this case, however, that mistake was not made. The most numerous class of fuel oil applicants were applicants for cooking and lighting rations. In the original order, these applicants were issued rations every three months. Later, this period was changed to six months, thereby cutting the board work load in half. Finally, in September of 1943, the regulations were amended to give boards almost complete control over this cooking and lighting ration work load.42 Boards were allowed to issue such rations for any period from one month to a year. Thus, the boards could stagger the periods to avoid peak loads, and they could reduce the number of individual application to one half of what it was (one fourth of what it had been under the original order), if shortage of manpower indicated this step was necessary. Delegations

to Other Levels Based on Distrust of Boards

Rightly or wrongly, many of the rationing officials in Washington believed that local board members, not thinking of themselves as government officials, were particularly subject to local pressures and to sentimental considerations. This belief resulted in a distrust, sometimes a subconscious distrust, of the local boards. This distrust manifested itself in occasional rules which withheld from local boards the power to pass upon certain applications. Since the only way that the great mass of consumer applications could be handled was by local boards and since, consequently, they had to be trusted to control the great bulk of consumer rations, rules which withheld from them power over an occasional application often appeared a little irrational. Frequently, boards were allowed to handle the great mass of applications for small amounts, but only the district office could handle appli-

PROBLEMS OF TECHNIQUE

37

cations for larger amounts. One of the most interesting variations of this theme was the early house-trailer rule in tire rationing. In effect, this rule allowed boards to issue tire certificates for trucks which hauled house trailers for distances up to 200 miles, providing such hauls were absolutely necessary to the prosecution of the war. Only the O P A district ofEce could approve the issuance of tire certificates for trucks which hauled house trailers for longer distances, providing such hauls were absolutely necessary to the prosecution of the war. Under this rule, both the local board and the district office had the same " f a c t " determination to make. If the local boards could make the decision in the greater number of cases, it was rather a futile gesture to deny them this power for the f e w cases of hauls in excess of 200 miles. Furthermore, as a matter of logic, "absolute necessity" cannot be limited to 200-mile hauls. There is no rhyme or reason to this rule. It can only be understood as a subconscious distrust of local boards working its way upward into the rules. Distrust of local boards also resulted in rules which gave the boards power to deny rations but not to approve them. Only the district office could approve. T h e "hardship" amendment in the first year of fuel oil rationing contained such a rule. 43 Consumers who could not get by on their rations were allowed to apply for additional oil to avoid extreme hardship. As Dean and Vass say, "Boards were instructed to process the application, deny it, or refer it to the District Office for approval if they recommended approval. . . . W e felt the District Offices would be less intolerant of regulations and, being farther removed from the applicant, would find it easier to be tough." 44 If it was felt that district offices would not succumb to a heartrending story of suffering, this rule was self-defeating, for the purpose of the amendment was to alleviate hardship. If it was felt that local boards would be "taken in" more easily than the district office by dishonest applicants who were not actually suffering hardship, there is little evidence to support such a position. Some local boards were gullible; some were not. Furthermore, the fuel oil rationing officials had to depend upon the boards' ability to determine the facts for nearly the total amount of fuel oil allowed under rationing. Inability to determine the truth of an applicant's statement in his application for a basic ration was a thousand times more dangerous to fuel oil rationing than improper handling of a few hardship applications. Consequently, district office approval of a few hardship applications seemed a futile gesture, but a gesture, nevertheless, of distrust of local boards. T h e fuel oil rationing officials came to the same conclusion; the hardship provisions for the rest of the program did not contain this peculiar denial of power to the local boards.

38

THE PLANNING PROCESS

The technique of granting the boards only the power of denial, with the approval power given to the district offices, was used quite often. Not only was it generally believed that district office personnel had "tougher minds" than boards, but it was also believed that this technique took pressure off the boards because it denied them the power to grant requests. What tended to happen, however, was that boards, not having the power to grant requests, recommended approval of all requests to the district office. When their power was taken away, with it went their sense of responsibility. Furthermore, this tendency probably extended to other areas where they did have the power of approval. Local boards suffered their greatest loss of the power to pass upon applications as the result of a notion, widely current among officials of the rationing department, that the boards, although they were capable of passing upon consumer applications, did not possess the knowledge necessary to pass upon applications presented by business firms. It was believed, therefore, that all "trade applications" should be passed upon by the district office. In accordance with this belief, all trade contacts of the food and shoe rationing programs were finally transferred to the district offices, and by the end of the war the other programs were moving in the same direction. This notion on the part of rationing officials was very interesting; it resulted largely from a priori considerations. Certainly, if the "Committee of Neighbors" could be expected to know anything about its community, it would be the conditions of the community's businessmen rather than its individual consumers. Local boards were made up of local doctors, lawyers, businessmen, teachers, and an occasional laborer. These men certainly could understand the rationing problems of a local shoe dealer—a very small businessman—as well as could the OPA district office personnel. While many board members were businessmen, this was seldom true of the district office personnel who actually handled the trade applications. Many of these lower level district office people were salesmen stranded by the war; they were paid $3,200 or $3,800 per annum. Furthermore, great blocks of the trade applications required less knowledge for processing than any other rationing applications. The food allotments for institutional and industrial users for example, were determined and issued according to set formulae. Handling these allotments involved, on the whole, only mathematics and record-keeping. Unquestionably, there were some trade applications, such as applications for fuel oil by power-generating plants, which required technical knowledge that might have been available at the district office. (These applications, however, were never taken away from local boards.) But

PROBLEMS OF TECHNIQUE

39

the proposition that all trade applications should go to district offices probably came from a peculiar source—the feeling that "big shots" should be given special consideration and allowed to deal with "big shots." The trade should deal with "higher" levels in the hierarchy than consumers do. The boards resented this loss of power, and, as might be expected, many district offices, not at all loath to increase their jurisdiction, encouraged this transfer of authority to themselves. Some programs, such as stove rationing, which required a more technical and unusual type of knowledge than did shoe rationing, successfully left all trade contacts with the local boards. In fact, the fuel rationing division consciously resisted the temptation to transfer trade applications to the district offices. In some cases, of course, there were good reasons for taking trade applications from the boards. But to conclude that therefore all trade applications should go to the district offices involved a kind of reasoning that had more esthetics in it than logic.45 Delegations to Field Based on Need for Speed and Local Information When local rules rather than uniform national rules were desired, the rule-making power was often delegated to that level in the field which most closely matched the areas of local difference. This delegation not only speeded up the enactment of the local rules, but it also facilitated planning of the rule by the field office in which pertinent information was more readily available. When fuel oil rationing was installed, there was a period when the coupons had not reached local boards from the printers and, therefore, had not been issued to applicants. Consumers had to give coupon notes to dealers in exchange for fuel oil, promising to pay the coupons when they got them. Since this coupon credit was a makeshift device and dangerous to the success of the rationing program, the planners were anxious to end the coupon credit period as soon as all consumers received their coupons. The original provisions of the regulations ended the coupon credit period on November 1, 1942. The story of successive but unsuccessful attempts by the Washington office to end the coupon credit period, which had to be predicated on the fact that all consumers had received their coupons, and the final delegation to the regional office of authority to terminate credit, is told in the language of the rationales accompanying the amendments. Printing delays have . . . created the danger that coupons may not be available for general use by November 1, 1942. If that should prove to be the case, consumers may be unable to purchase ruel oil and serious hardship may

40

THE PLANNING

PROCESS

result. It is, therefore, considered advisable to establish a coupon credit system during the period from November ι through November 23, 1942, in order to avoid hardships. (Amend. 2, October 31.) Further printing difficulties and the enormity of the task of processing applications have made impossible the issuance of all coupons by November 23, 1942. It is, therefore, desirable to retain the coupon credit system at all levels until November 30, 1942. . . . (Amend. 10, November 23.) For the reasons stated in the Rationale accompanying Amendment No. 10 to Ration Order No. 11, it was impossible to issue all coupons by November 30, 1942. It is, therefore, desirable to extend further the coupon credit system at all levels through December 9, 1942. . . . (Amend. 12, November 30.) In certain parts of the rationed area, there has been a further delay in the issuance of rations due, among other reasons, to the large number of applications filed. The Regional Administrators are in a good position to determine the specific localities in their regions where an extension of coupon credit is required. It is desirable, therefore, to permit such Regional Administrators, by déclaration, subject to the approval of the Washington Office, to designate the areas in their respective regions wherein such extension should be made. (Amend. 15, December 14.) In this case, the fact upon which the cut-off of coupon credit had to be predicated was a fact that could only be known immediately by the local offices. Since the W a s h i n g t o n officials did not believe that they could wait for complete reports on the issuance of coupons, they finally delegated to the field offices the authority to end the coupon credit period. T h e delegation was based on both the need for speed and the need for local information. In spite of the best laid plans of administrators, unforeseen emergencies may develop in some area, and that area must be allowed to defend itself with speed. In order to be prepared for an emergency in the supply or distribution of fuel oil in any area, the fuel oil rationing officials provided that if any region ran short of oil, the regional administrator could set aside the ration order and issue such rules or priorities governing fuel oil deliveries as he saw fit.40 W h e r e such an emergency had developed and who were the most essential users of fuel oil in the area were facts that the local officials knew better than the W a s h i n g t o n officials. Certainly, if such an emergency did develop in the midst of winter, there would be a tremendous need for speed. In the 1944 sugar home-canning program, the district director was authorized to set two periods during which people could apply for homecanning sugar. 47 Applicants were to receive only half their total needs during any one period. In this way, the district office, which best knew local conditions, could harmonize the issuance of home-canning sugar with the facts of the local fruit harvest.

PROBLEMS OF TECHNIQUE

Shifting Responsibility

and Pressure to Field

Offices

The delegations of rule-making authority to field offices seldom contained important grants of power. The Washington office did not trust the regional or district offices much more than it trusted the local boards. The usual technique was to delegate power to do something after obtaining approval from Washington. In this way, Washington granted the power of initiating actions but not of approving them. Since field offices always had the power or privilege of initiation, this delegation would appear, at first glance, not a delegation at all, but a variety of hocus-pocus. In this situation, however, there was one new and important factor. Whereas ordinarily changes might be made with or without initiation by the field, after this type of delegation it was almost certain that no change would be made until the field initiated it. The net effect was to shift the responsibility for making the change to the field office without increasing its power. The Washington office would still decide, but the field took the heat. Besides shifting a certain amount of pressure from Washington officials to field officials, this technique had more the appearance than the actuality of delegation. It had for the Washington officials, therefore, a certain amount of sales value for use with Congressmen and others who extol the values of delegation. The rationing programs were full of examples of this kind of delegation. As explained before, the regional administrator could, with Washington approval, extend the period of fuel oil coupon credit for a few days.48 In the 1944-45 fuel oil rationing program, there was a provision stating that no space heater would be deemed capable of heating more than 550 square feet.49 Since each space heater ration was in proportion to the floor area heated, this provision imposed a limitation on the size of space heater rations. The regional fuel rationing representative in the Atlanta region immediately went to work on the then assistant division director in Washington and convinced him that space heaters in the South could heat up to 950 square feet. The regional fuel rationing representative in the Pacific Northwest convinced him that a certain type of space heater in extensive use there could heat up to 850 square feet. The regulations were then amended to provide that space heaters in the South could heat 950 square feet and a particular kind in the Pacific Northwest could heat 850 square feet. 50 These local variations were contained in the national rule and caused some complaints from other regions. Consequently, while the program for the next year contained the same 550 square feet limitation, it provided that a district director could waive this area limitation after obtaining approval from

T H E PLANNING

PROCESS

the Washington office. 51 This technique tended to shift the local pressures to the district director without allowing him to act on his own authority. Whereas in the 1944-45 heating year field officials initiated changes in the space heater area ceilings, Washington approved them, and Washington amended the national rules, if rationing had continued in the 1945-46 heating year, field officials would have initiated the changes, Washington would have approved them (or rejected them), and the field offices would then have issued their own local rules. These rules would not have had national publicity and therefore might not have cause inter-regional competition. The fuel oil hardship program for the 1943-44 heating year provided that the hardship provisions could be invoked by the regional administrator after obtaining the assurance of the Washington office "that an adequate supply of oil was available." 52 Thus, the tremendous pressures for issuing hardship rations would fall chiefly on the regional office, but that office would have no power to do anything about it. T h e Wash ington officials were grimly determined not to find that "oil was available" for as long a time as possible. Their staying powers were enhanced by the fact that "the monkey was not on their backs." Their plans went awry, however, when the Cleveland region succumbed to the pressures and invoked hardship, without Washington approval, a month sooner than the Washington officials wanted it. 53 Because of the need for speed and local information in the event of a great public emergency or disaster, such as fire or flood, General Ration Order 10 was issued, effective May 29, 1943. This order gave the regional administrator authority, "with the approval of the Deputy Administrator in Charge of Rationing," to "declare that a public emergency exists" in any area in the region. He could then "take such action . . . as he shall deem necessary or advisable to meet or alleviate such emergency, including, without limitation, the granting of individual or blanket waivers of or exception to any such order under such terms and conditions as he shall deem necessary." Clearance with Washington in this case did not mean much, because the need for invoking this power was always obvious. If a regional administrator had abused such a tremendous grant of power, he would quickly have been dismissed. Clearance from Washington could be obtained quickly over the telephone and was obtained in this way on the few occasions the power was used. This "authority of the Regional Administrator shall continue until he (or the Deputy Administrator) decides that the state of public emergency has ceased to exist." Under this delegation, the Washington deputy administrator could prevent the emergency power to suspend the ration

PROBLEMS OF TECHNIQUE

43

orders from being invoked in the first place and could terminate the suspension when he saw fit. It was a fairly cautious delegation. The Role of the Legal Document in Delegation Providing in the formal, legal document of delegation for prior approval from the delegating power raises the interesting question, how is the field controlled? It is doubtful that the Washington officials ever expected to take legal action against a field official for abuse of delegated power. Administrative discipline was actually the sanction used. It is a fact, however, that O P A field officials felt bound by instructions contained in a document called "legal," whereas they frequently disregarded instructions contained in other types of documents. This trait is illustrated by an interesting fuel oil case early in 1945. Under the fuel oil and stove rationing regulations a district director could declare any area in his district a solid fuels shortage area. This declaration made certain persons eligible for oil stoves and fuel oil who were not eligible before. District directors were under strong instructions from the Washington office not to do this without first getting Washington approval. Washington very early decided not to approve such declarations because, although all fuels became scarce during the war, fuel oil was the only fuel rationed by O P A and was officially, therefore, the most scarce fuel. 54 Early in 1945, fuel oil in relation to coal bccame relatively plentiful in some areas. In other areas it was so scarce as to create almost a supply emergency. T h e Washington office learned that some district offices, where fuel oil was relatively plentiful, were planning to disregard the instructions and declare coal and wood unavailable. On the other hand, one region, where fuel oil was extremely scarce, was planning to declare a transportation emergency, which it had power to do. T h e Washington office wanted neither of these events to take place and, to prevent them, quickly amended the ration order to require prior approval of the deputy administrator for rationing before either of these declarations could be made. 55 This worked; the declarations were not made. If the fuel rationing officials in Washington had asked the top O P A management to order the field to obey the instructions and exercise its authority according to the wishes of the rationing department, they would probably have been turned down because of the tendency of the top O P A management to pamper the field. T h e y had no trouble, however, clearing an amendment to the fuel oil rationing regulations which accomplished the same result, perhaps even more effectively.

44

THE PLANNING PROCESS

Washington Retains the Power to Decide Occasionally the Washington office would retain the power to pass on individual applications. T h e pyramiding of work load plus the difficulties of getting sufficient personnel to handle it kept the Washington officials from adding to their problems in this way except in those cases which they felt were of national scope and should, therefore, be decided nationally. An example was the treatment of sugar used for preserving milk. Dairies had always used some sugar for making long-lasting milk products, such as condensed milk, when they could not sell all their fresh milk. Consequently, in the original sugar rationing regulations, dairies were defined as industrial users of sugar and received from the local boards bi-monthly allotments based on past use of sugar. Since the amount of sugar-containing milk products made by dairies would limit the amount of fresh milk available in any community, sugar allotments for dairies became a matter of national interest to the Department of Agriculture. T h a t Department knew whether any milk-producing area was going to have a surplus which would necessitate converting some of the fresh milk into products such as condensed milk. T h e question of sugar allotments to dairies was a national rather than a local one. Therefore, the sugar rationing regulations were amended to require dairies to apply to the Washington office each month during which they wished to use sugar in processing milk. 5 0 T h e Washington office, in close touch with the Department of Agriculture, could make in each case a determination that reflected national policy. T h e tire rationing program also furnishes an example of retention by the national office of the power to decide on a question of national import. T h e original tire rationing regulations froze all tire inventories as they were when the regulations became effective. It gradually became apparent that these inventories were not properly distributed throughout the country. Therefore, the regulations were amended to allow tire manufacturers to keep a stock of tires or tubes anywhere in the country upon approval of the tire rationing branch in Washington. This amendment allowed the Washington office to maintain a fair geographical distribution throughout the country. At the same time, it was much easier for a national tire company to apply to the national office of O P A than to locate and apply to the various field offices of O P A . " Sub-delegation in rationing was not uniformly guided by any body of administrative doctrine. Some of the rationing delegations made extremely good sense. Others seemed to be based on feelings or vague sentiments. 58 Still others appeared to be largely accidental. Since dele-

PROBLEMS OF TECHNIQUE

45

gation is a transfer or sharing of part of the regulator)' power itself, it should be guided by complete understanding; it should be rationalized. CERTIFICATIONS Applicants were frequently required to present with their applications certifications from some other person or body as to the truthfulness of the facts stated in the applications or as to other facts upon which eligibility for rations depended. Properly used, certifications could amount to actual rationing by persons most qualified in each case with continuing formal power, which might become actual at any moment, retained in the permanent board structure. Whereas the applicant might be inclined to romanticize the facts of his own case, a disinterested second person would be much less inclined to do so. In fact, the second party might have a positive interest in telling the truth. The key to the proper use of certifications, therefore, was to find a qualified second party whose interest in the outcome of the application did not coincide with that of the applicant. The certifications in the rationing programs did not always achieve this goal. The certifications which involved most obviously that fatal coincidence of interest between the certifier and the certified were the heating engineer's certifications in fuel oil rationing and the doctor's certifications for medical rations in many rationing programs. Some of the people who worked in the fuel rationing division used to say that certifications were the deus ex machina of the first year of fuel oil rationing. Whenever the planners came to a problem they could not solve in Washington, they said, "Get a certification." This was almost literally true. Following are some of the certifications required in the first year of the fuel oil rationing program: ( 1 ) Dealers were required to certify as to the past fuel oil consumption of their customers. (2) Owners were required to certify that the floor area claimed by the tenant was correct. (3) Doctors certified as to the need for higher temperatures in cases of sickness or infirmity. (4) Heating engineers certified that the applicant had maximized the thermal efficiency of his house and equipment before a supplemental ration (for sickness, hardship, etc.) could be issued. (5) Heating engineers certified that the applicant's fuel oil equipment was non-convertible (to coal) before a supplemental ration could be issued. (6) Heating engineers certified what the normal requirements of a nonprivate dwelling would be. (These buildings got two thirds of normal requirements of fuel oil as their heating rations.) There were other examples. None of these certifications was reliable. Fuel oil dealers, owners of buildings, heating engineers, and doctors—

46

THE PLANNING PROCESS

all had the interests of the applicant at heart. He was their customer, and they disliked to do anything to harm his interests. In all programs, the doctor's certification for medical rations became a farce in many areas of the country. O P A field offices reported them being sold as a commodity. T h e fuel rationing division became so disillusioned with its certifications that during the second year of rationing all certification requirements (with one exception) were removed from the regulations. Local boards were told by instruction that they could insist on certifications in any case where they thought they would be helpful, but that they definitely did not have to rely on them or even require them. Other rationing programs retained their doctor's certifications, but they were always a problem. Certifications for convalescence gasoline by Army or Navy doctors worked much better. T h e y did not contain the same coincidence of. interests that other doctors' certifications contained. They were not perfect, however. T h e regional mileage rationing representative in San Francisco reported a case where a Navy doctor certified for gasoline (305 gallons) for a convalescent serviceman to travel from Shoemaker, California, to Monroe, Louisiana, and return, a distance of more than 4,500 miles. T h e local board did not want to issue the gasoline but felt it had no alternative. T h e regional representative suggested that a distance limitation be placed on such certifications. T h e gasoline eligibility committee rejected this suggestion because, "Although travel for long distances may be recommended in a very few instances, it is believed that medical officials of the Army and the Navy would not recommend unnecessary gasoline for such purposes." 53 A government supervisor could certify that his employee used his car for necessary official business at his supervisor's request, was compensated for this by the agency and was, therefore, eligible for gasoline and tires. Although no evidence of abuse of this type of certification is available, the relationship between supervisor and employee in government is frequently of such a nature that there would be a community of interest in the outcome of an employee's application for additional rations. This relationship frequently develops into a close friendship; or the supervisor might be tempted to solve some problem of morale or working relations by the use of such a certification. 60 Certifications from some specialized unit of an agency tended to be more disinterested. Especially was this true when there was competition between agencies or units of government, such as competition to reduce mileage. Most state and local units of government, as well as the agencies and departments in the federal government, had mileage administrators

PROBLEMS OF TECHNIQUE

47

whose job was to reduce the official mileage used by the unit and certify as to the eligibility of employees for home-to-work mileage. This program was promoted by a special group in the gasoline rationing branch in Washington—the mileage conservation section. Personnel of this section talked with Governors personally and got their support. They helped train the mileage administrators; they supervised a large staff of field men in the regions and districts who did nothing but promote this program and a similar one for private industry—the plant transportation committees. They published a government periodical, with pictures and human-interest stories about the experiences of various government mileage administrators, which went to all government mileage administrators. A lively competition grew up in this way between the various state and local government units. The state and local government mileage administrators achieved an average reduction in official mileage of about 40 per cent. Plant transportation committees, which were part of the mileage conservation program mentioned in the preceding paragraph, were committees of management and labor in war plants employing one hundred or more workers which organized car clubs and certified as to the needs of workers for gasoline and tires for home-to-work driving. They made it easier for eligible workers to get their gasoline and tires, and therefore they reduced absenteeism. Consequently, it was to the interest of both management and labor to be allowed to have such a certifying committee. As a result of this, these committees carefully guarded the integrity of their certifications, which were, in general, among the most reliable of all. Here there was a positive interest in correct certifications on the part of the certifying body. Unfortunately there was very little information in the rationing files on the effect of certifications. It would be very helpful to an administrator to know what he could expect from any type of proposed certification. Certifications are a necessary tool of government in those areas where time and numbers do not permit the use of the techniques of "proof" developed by the courts. DEADLINES One of the most common, and annoying, characteristics of the rationing rules was the requirement that something be done by a certain time, or else. . . . Human nature and limitations being what they are, it was always extremely difficult to enforce such requirements. Sometimes it was impossible either to enforcc or to "live with" these deadline requirements. Then the deadline was extended. As the deadline require-

40

THE PLANNING PROCESS

ment was one of the most common characteristics of the rationing rules, so the amendments extending deadlines were one of the most common types of amendments. T h e requirement that a member of the public apply for something by a certain time or go without may not always be necessary. It may be a kind of officiousness—that dread bureaucratic disease which comes over some people in positions of a little power. Or it may be a lack of sympathy that sometimes infects government officials because of the ever-widening psychic gap between them and the persons governed. It is very difficult to keep in mind the other person's point of view, especially when he is not around to express it. T h e deadline requirement, however, will be defended by some people as a technique of regulation— as a method of influencing behavior by bluff. T h e administrator wants to get everyone registered as soon as possible, and so he says they have to be registered by next Friday. If many of them still remain unregistered when Friday comes, he can extend the deadline until the following Tuesday at noon. T h e use of deadline requirements in this way is probably self-defeating. After the administrator has cried "wolf, wolf" a few times, his cries will go unheeded. Use of deadlines as a bluff may create an atmosphere of general disrespect for the rules or the rule-makers or both. Deadlines should be used, as should any other technique, with a conscious appreciation of their usefulness and their limitations. Deadline May Be Necessary Part of

Regulation

There are some situations where a definite action must be taken by a certain time, or the success of a program will be endangered. At the beginning of any rationing program, all inventories of the rationed article had to be registered quickly in order for the rationing agency to gain control of them and prevent them from being sold on the black market outside of the rationing system. All dealers, wholesalers, and other suppliers were required to register on or by a certain date. T h e rationing officials really meant this deadline and were prepared to enforce it. If a dealer were found unregistered after that date, a court order commanding him to register was obtained, if indeed more drastic action was not taken. In this situation, the deadline was a logical necessity. If the rule-makers had merely ordered dealers to register, they immediately would have had to answer the question, " W h e n ? " As a practical matter, in order to get an injunction compelling registration, they had to provide a date after which the dealer had failed to comply. A dealer or supplier who registered late was subjected to an unusual procedure, involving a close scrutiny of his transactions prior to his late

PROBLEMS OF TECHNIQUE

49

registration and considerable questioning as to why he registered late. Usually he had to apply for late registration to the district office rather than a local board. Frequently, an O P A investigator was sent out to his establishment before his registration was completed. In short, the rationing officials were extremely serious about getting dealers and suppliers registered at once and were willing to go to any trouble to enforce registration deadlines. Public Should Be Prepared for Deadline Although it may be necessary to have a certain action taken on or by a certain date, the planners should remember that it is very difficult to get people to perform with alacrity and uniformity. 61 They may not find out about the requirement in time; they may not take the deadline requirement seriously; they may procrastinate; or they may simply violate. 02 If the action to be taken is really important to the program (and if it is not, it probably should not be required), it is important to prepare the affected persons for the deadline requirements in order to avoid a serious, not to say impossible, enforcement problem later. If this preparation is not carried out, the planners will probably have to extend the deadline, thereby weakening public respect for the rules. It is hardly necessary to cite specific cases to illustrate this proposition at this point. Examples of deadline requirements in the pages to follow will be illustration enough. Use of Deadline in Mass Filings It often happens that the administrators will, for purposes of administrative convenience, want a mass filing or applying of a non-compulsory kind to take place within a certain period of time. An ineffective way to approach this problem is to provide that everyone must file or apply by a certain date or not at all. T h e effective way is to throw an impediment in the way of the late applications. Both the right and the wrong ways can be illustrated from rationing. T h e problem was particularly noticeable in the registration (application) for ration books. T o distribute 1 3 0 million ration books in a hurry is a big job. A tremendous number of volunteers had to be brought in to do it. M a n y additional registration sites (schools) had to be set up and equipped with forms, ration books, accountability procedures, police protection, etc. It was difficult to set up this gigantic distribution machinery, and it could only be maintained for a very short time. Therefore, it was important to get as many as possible of the 1 3 0 million books issued during this time. T h e technique used by the rationing officials to accomplish this job was an effective one.

50

THE PLANNING PROCESS

For War Ration Book II, everyone was urged to apply at a designated school between February 21 and February 28, 1943. Anyone who did not apply during that period had to wait until March 15 and then go to the more distant and difficult local board.63 Most people preferred the speed and simplicity of the school site system, and they wanted to get their books as soon as possible so that they could buy rationed food. Most people, therefore, applied during the period of mass issuance as the rule-makers wanted them to do. The same technique was used for issuance of Book 3. To persuade people to mail in their applications during the period when the tremendous mailing machinery was in operation, the regulations provided that anyone who did not mail his application by June 10, 1943, could not apply until August 1, when he would have to go to his local board.64 No Deadline When Government Wants to Bestow Favor Where the administrators have some favor or privilege to bestow upon the public, there is no point in requiring the public to apply or ask for this favor by a certain time. (This is assuming, of course, that the problem described immediately above, of an initial mass application, is not present.) In rationing, failure to comply with this principle nearly always resulted in a later extension of the deadline. Persons left out by the deadline complained, or the planners' own consciences insisted on the extension. Since there was never a good argument for maintaining such deadline, refusal to extend it would have been arbitrary. Officials can avoid this dilemma by avoiding the use of deadlines in this situation. Even more true is the principle when the administrators have a positive interest in securing applications from all eligible persons. As simple as the principle seems, it was violated in rationing with the consistency and regularity of clockwork. Following are examples of the mistaken use of deadlines and the subsequent extension or removal of the deadline. When retreading of truck tires was rationed, beginning February 19, 1942, retreaders were given until March 1 to apply for an allotment (inventory) of truck type camelback.65 The original allotments were soon found to be insufficient, and shortly thereafter the retreaders were allowed to apply for more,66 between March 17 and April 1. The announcement was made in the press on March 16. On April 10, retreading of passenger type tires was begun, under rationing control. Retreaders were allowed only until April 30 to apply for an allotment of passenger type camelback.67 There was no reason for restricting the time within which retreaders could apply for these allotments. In fact, it was to the interest of the rationing officials and the country to encourage retreading as a

PROBLEMS OF TECHNIQUE

5I

means of making the extremely small tire supply go as far as possible. T h e rationing officials were encouraging retreading with one series of rules while they were restricting it with these deadlines. This conflict finally became apparent towards the end of the year (in October) and all deadlines were removed." 8 From then on, retreaders could apply for an allotment of camelback at any time. T h e rationale accompanying this latter amendment contains a rather surprised recognition of the facts of life. Certain eligible retreaders and recappers did not file applications for initial allotments of camelback within the time limits prescribed by the present regulations. Sickness, inability to secure the necessary forms, lack of information, and other valid reasons frequently prevented applicants from filing their respective applications within the prescribed time limits. Likewise, entrance into the recapping business, subsequent to the stipulated filing dates, has been made in several instances. Some recappers have purchased new molds since the expiration of the filing dates, or have utilized molds which were previously idle. The present Regulations make no provision for these persons to secure initial allotments of camelback. T o abolish the inequities which have arisen, it is necessary to modify the present regulations. T h e essential fact not given prominence in the rationale, and the one responsible for " t h e inequities which have arisen," is that the deadlines should not have been created in the first place. Another interesting case illustrating the insistence on the use of the deadline in situations to which it does not apply is the history of the bailout for coupon credit notes in the fuel oil rationing program. A t the beginning of the fuel oil rationing program on the East Coast, coupons were not immediately available, and so fuel oil was delivered for a period in exchange for coupon notes. W h e n the coupon credit period was over, it was found that many customers did not redeem their notes as they were supposed to do. Dealers and suppliers were short of ration currency with which to replenish their stock. T h e fuel rationing officials decided that O P A should take over these bad accounts and try to collect the coupons. T h e amendment which installed this bail-out program was issued and effective January 12, 1943.®® It provided that dealers were to apply for this bail-out assistance on January 14, 15, or 16. Suppliers were to apply on January 29 or 30. W h e n these dates passed, many dealers and suppliers had not applied and so the regulations were amended on February 27 to allow the regional administrators to fix dates for application but not beyond April 1, 7 0 On the first of February, Washington and Oregon were added to the rationing area, and these states also went through a period of coupon credit. T h e amendment which included them in the rationed area provided that dealers could apply for bail-out of bad coupon notes on March 1 5 and 16, the sup-

52

THE PLANNING PROCESS 71

pliers on March 30. Because the coupon credit period had to be extended, as it had been previously for the East Coast, these deadlines were extended for dealers to March 30 and 3 1 , and to April 1 5 for suppliers. 72 This action was taken on the same day that the determination of deadlines on the East Coast was turned over to the regional administrators. These new dates for Washington and Oregon went by; many dealers and s u p pliers still had not applied; the regulations were, therefore, amended to allow the regional administrator to set the deadline dates in Oregon and Washington but not beyond M a y 1 for dealers or M a y 1 5 for suppliers." T h e same amendment extended the deadlines originally set for Idaho in the amendment which incorporated Idaho into the rationed area on March 14. 74 Even after these extensions many dealers and suppliers still had unredeemed coupon notes. Furthermore, they were accumulating losses or shortages of both ration currency and oil in many other ways. T h e fuel rationing officials really wanted to give them a bail-out for any legitimate losses so that they could operate effectively and profitably with a complete inventory. Therefore, during the summer of 1943, fuel oil officials planned another bail-out that would cover not only the unredeemed coupon notes but all other types of losses or shortages that were not due to violations. During this planning period, there was a strong drive by the enforcement attorneys to make applications for bail-out compulsory under a deadline. T h e rationing officials were beginning to understand the deadline technique, however, and avoided a deadline through the use of a stratagem. T h e final bail-out amendment, effective November 1, 1943, provided: "If the shortage or loss of evidences . . . occurs before November 1 , 1943, the application must be made before January 1 , 1944." " deadline was put in at the insistence of the chief fuel oil rationing attorney and the enforcement attorneys. However, the procedure analyst largely responsible for the bail-out procedure persuaded the attorney drafting the amendment to emasculate this deadline byadding the words, "unless the applicant shows good cause for applying later." This device satisfied the attorneys, and was used to good effect by the field officials who, being on the firing line, did not like to refuse favors to people unless compelled to do so by the regulations. T h e final bail-out procedure thus allowed non-violating dealers to apply for a service, bail-out, whenever they felt the need. T h e procedure was not changed throughout the life of the program. T h e history of the fuel oil bail-out procedure is remarkable as an example of conflict between a purpose—the bail-out of dealers—and a

PROBLEMS OF TECHNIQUE

53

technique—the use of deadlines. Excerpts from the rationales accompanying the various amendments illustrate this conflict. From the original bail-out on the East Coast: Whatever the reasons may be for the failure of the consumer to redeem his coupon credit transactions, the position of the dealers and suppliers who made bona fide deliveries during the transitional period merits consideration. It is desirable to have local Boards take over from dealers and suppliers the unredeemed coupons credits by furnishing exchange certificates to the dealers and suppliers for the unredeemed balances. This will at one time place the dealers and suppliers in a position to redeem their own credit transactions and to replenish their supplies as well as to place the unredeemed coupon transactions in an agcncy better equipped to collect them.7® F r o m the amendment authorizing regional administrators to set deadlines for the East Coast: It is found that in many localities there has been insufficient time within which dealers and suppliers could apply to the Boards for redemption of their coupon credit transactions pursuant to the procedure set up by Amendment No. 24. It is accordingly deemed desirable to permit Regional Administrators to fix the dates in their respective regions when such applications may be made, but not beyond April 1, 1 9 4 3 . " F r o m the first deadline extension in Washington and Oregon: It has been found that dealers and suppliers have not had sufficient time, under the dates presently fixed, within which . . . to apply to the Boards for redemption of their unredeemed coupon credit deliveries.78 From the final permanent bail-out without deadlines: Dealers . . . have losses or shortages resulting from . . . legitimate causes for which no present means of compensation exist. For example, shortages due to the failure of a transferee to deliver coupons where credit was extended. . . . It is, therefore, desirable to provide a method for compensating dealers for . . . all their unavoidable and unrecoverable losses or shortages of fuel oil [and ration evidences].79 In the fuel oil bail-out procedure, the planners wanted all dealers to do something which they were not compelled to do. But the rule provided that dealers could not do it after a specified date. For practical purposes, the technique was in flat contradiction to the purpose. 80 When Granting Favors as a Sanction, Deadlines Should Not Be Used W h e n the administrator has something to give away which is much wanted by the public, he has an effective administrative sanction which he can use to induce the public to behave in harmony with the purposes

54

THE PLANNING PROCESS

of his program. He can offer this privilege or favor in return for some report or other matter from the public. In this situation, he should not require the report or other action by a specified time unless he is prepared to withhold the favor from large numbers of disgruntled and critical citizens and go without their reports as well. Withholding favors permanently in such a case smacks of vindictiveness. It is much better to make the granting of the favor conditional upon performance of the required act. T h e n a person feels that he has only himself to blame if he does not receive the favor. T h a t is much more acceptable than a disappointment because of the "unreasonable rules of the bureaucrats." T o illustrate this principle of the use of deadlines, examples of two separate reregistrations of industrial users of food will be used. T h e first reregistration was handled correctly; the second was handled incorrectly. T h e latter will be discussed first. W h e n the food supply situation became critical late in 1944 (after people decided the war was not going to be over in October), and after many de-rationed items were put back under rationing control, the food rationing officials decided they would make industrial users live for a while on their inflated inventories and swollen ration bank balances. Therefore, they needed a report of inventories and bank balances from each industrial user. T h e report was to be made out as of January 1 , 1945. A n effective sanction was available to compel the filing of these reports. T h e officials could have withheld any future allotment until the report was filed; or they could have reduced the next allotment credit by a proportionate amount for each day that the report was delayed beyond a certain date. T h e y did neither. Instead, they provided that industrial users with one establishment had to file the report by January 7, and those with more than one establishment by January 14. 8 1 T h e food rationing officials further provided that no further allotments would be issued if the reports were not filed by those dates. Failure to meet these deadlines, willful or otherwise, would result in a total suspension from business for the duration of the war, and without benefit of a "day in court." T h e planners could not live with this result, obviously, and when the deadlines arrived with many reports not yet received, they extended them to January 1 4 and January 2 1 , respectively. 82 It is probable that the field received many reports after these extended deadlines and continued to issue allotments to late comers in spite of the regulations. A year previously, industrial users had been required to reregister with local boards. 83 T h a t reregistration was handled correctly. Filing was

PROBLEMS OF TECHNIQUE

55

limited to the period between December 1 5 , 1943, and January 5, 1944. If the registrant filed late, his next allotment was reduced accordingly. Any industrial user who is required by this order to re-register . . . between December 1 5 , 1943, and January 5, 1944 . · · may re-register later. However, in that case . . . his allotment shall be reduced in proportion to the part of the allotment period which has elapsed at the time he re registers.84 In this case, the planners used their power to grant a favor (the allotment) as the sole sanction for inducing industrial users to file the "required" registration statement. Furthermore, they discouraged lateness by reducing the favor (allotment) in proportion to the lateness. Other things being equal, there certainly would be less tardiness in filing this registration statement than in filing the inventory report described above. T h e industrial users simply would not believe that a late filing of their inventory report would result in their being suspended for the duration. T h e y must have also felt the very human tendency to push back when pushed. Possible Use of Deadline to Reduce Spurious

Claims

T h e foregoing paragraphs illustrate the principle that when the administrator has a favor he wishes or is willing to bestow on the public, the use of the deadline creates problems and should be avoided. A possible modification of this principle should be mentioned. There may be situations where eligibility for the favor is, for practical purposes, indeterminable. In this situation, a deadline may reduce the number of spurious claims that will be made. It will also, however, reduce the number of valid claims, and to that extent may defeat the purpose for granting the favor. T h e deadline, in this situation, is an absolute impediment and has an overall or statistical effect rather than the effect of obtaining justice or accuracy in the individual case. In fuel oil rationing, for example, the heating year was divided into five heating periods. A block of coupons on the consumer's coupon sheet became valid at the beginning of each period. These coupons were good for a specified number of gallonage units, the value of which was set by the Washington office. T h u s , the Washington office could reduce or increase the "unit value" of the coupons and in this way keep demand in line with supply. T h e par value of the unit was ten gallons. That is, ten gallons was the value used by local boards when issuing coupon sheets to consumers. Normali}', the value of the unit in various parts of the country was announced at the beginning of a heating period, when a new block of coupons became valid. However, at the end of

56

THE PLANNING PROCESS

1942, the fuel oil supply on the East Coast dropped so abruptly that the value of the unit was reduced to nine gallons in the middle of period three. 85 This action created a serious problem. Dealers who delivered ten gallons per unit would suddenly find themselves forced to pay their suppliers, for nine gallons of oil, a coupon for which they had delivered ten gallons, thus taking a 1 0 per cent loss in inventor)'. T o solve this problem, the planners had to allow dealers to exchange these coupons, received at the rate of ten gallons per unit, at local boards, for ration currency at a ten-gallon per unit rate. There was absolutely no way of telling the difference between a coupon received at nine gallons per unit and one received at ten. If the planners had allowed this exchange at boards to continue throughout period three, dealers could have increased their inventories by bringing in nine-gallon units (for which they had properly delivered only nine gallons) and receiving ten in exchange. T o reduce the number of such spurious claims, the rules provided that dealers could exchange at boards on January 4, 5, and 6 all period three coupons received before 1 2 : 0 1 A.M. January 4 (when the unit value was reduced) at ten gallons per unit for ration currency at the ten-gallon per unit rate. 86 This exchange was announced January 3. T h e deadline period was so short that it not only prevented spurious claims for exchanges at the rate of nine to ten; it also prevented many valid claims at the ten to ten rate. This result was not quite acceptable to the planners, and so they issued an amendment, effective January 9, that allowed suppliers to accept at par value dealers' coupons received at par value before the reduction in value, but only until January i4· 8 7 This extended the period within which these coupons could be exchanged, but only for a short while. Theoretically at least, this deadline excluded some spurious claims and therefore prevented as great an inflation of the currency as might otherwise have occurred. It should be remembered, however, that it also prevented some valid claims from being honored. 88 Although deadlines were sometimes necessary, many rationing deadlines were unnecessary. Because of the tendency of people to procrastinate, it is extremely difficult to enforce deadlines. Except as an aid in mass filings or registrations, when the government has something to give away, and especially when it desires as many people as possible to receive it, deadlines should not be used. Use of deadlines in this situation and in the granting of rewards as a regulatory device is self-defeating. Deadlines may have some use as an absolute impediment to reduce spurious claims.

Chapter 2.

THE FORMAL PLANNING PROCESS

HAVING SAMPLED the substance of rationing planning—the regulatory problems that were presented for solution—most of the balance of the book will be concerned with the planning process in which these problems were considered and which determined the manner of their solution. First to be considered are the formal procedures and relations through which the planning process operated. Planning of the original programs was rather chaotic and formless. T h e rationing officials did not know if or when they would be asked to ration. If they thought that the supply of some commodity indicated rationing would be necessary, a few persons were assigned to gather information and prepare a rough plan. If enough persons were assigned to this project, there would be some specialization, one group working on industry problems, another on types of uses, another on forms and instructions, etc. If O P A then received a directive from W P B to ration the commodity, a more elaborate organization would be created with many more people. T h e rough draft of the plan would be checked with various industry groups and anyone else who might contribute. Regulations would be drafted, forms and instructions designed, the field staff recruited and trained, public and industry education programs planned and installed, etc. All of this initial planning activity would be under the direction of the division director. W h e n the program was installed, the people who worked on it during the planning stages would then be organized into a branch under a branch chief. T h e branches were organized, usually, according to specializations which appeared helpful during the hectic period of original planning. T h e branch organization emphasized continuous planning, and planning continued unabated after installation of the program. The planning process that was most important from the standpoint of public administration was the planning process after the programs were installed.

5»

THE PLANNING PROCESS

T H E NORMAL PROCESS By "normal process" is meant the customary or usual manner in which the rules were planned. T h e first step in the normal process was the suggestion for a change in the rules. These suggestions came from evenwhere—Congress, individual citizens, newspapers, etc. T h e two most important sources were the rationing field organization and the Washington planning staff itself. T h e field was the most important single source of change. Suggestions from the field in most cases represented the real problems of operating the program. T h e suggestions were usually not based on hypothetical cases. Field suggestions came by special wire or memorandum, by telephone, or by means of a semi-monthly report from each field man. Suggestions for change from the Washington planning staff itself were such as come from pure analysis of the program, corrections of illogic, procedural reforms, etc. Suggestions for change were discussed in policy meetings. In some branches, policy meetings were held on a regular schedule, with special meetings called when someone felt they were needed. Scheduled meetings were usually once a week and lasted for periods of from two hours to all day. Other branches only called meetings when they felt it necessary. Some branch chiefs invited all professional branch personnel (CAF-5, P-i, and above) to the policy meetings, including the attorneys. This made a rather large and unwieldy meeting, but had the advantage of keeping everyone informed and, hence, happy. Other branch chiefs invited only the officials whose advice they had come chiefly to accept, usually their section chiefs, although in some instances a person or two other than a section chief was included and a section chief or two omitted. This type of policy meeting makes for a less tightly knit and loyal branch group. It divides branch personnel into "big shots" and "small fry." The question of what to do with the suggestion would be decided in the policy meeting. It might be accepted, changed, or rejected. Some branch chiefs normally decided questions by majority vote at the policy meetings. Others reserved the final decision to themselves, regarding the policy meeting as an advisory body. Generally, the decisions of the rationing branches were group decisions. After the decision to change the rules had been reached, someone in the branch was designated to write a "request for program change." T h e request in the early days was not always called by that name, often contained little information, and was circulated only to the branch staff, the appropriate attorney, and the division director. Its purpose was

THE FORMAL PLANNING PROCESS

59

to record an official decision and a drafting assignment to the attorneys. T h e attorneys worked out the details of implementing the decision while drafting the amendment. In the summer of 1944, the deputy administrator asked for a weekly report of all projects pending or under consideration. In the fall of 1944, the deputy administrator installed the formal request procedure. T h e request for program change, in its final form, was a memorandum from the division director to the deputy administrator asking his permission to make a change in the rules. T h e request outlined what the change was, why it was needed, the timing required, and included an estimate of the probable effect on the field. T h e purpose of the request was to allow the deputy administrator to determine if a change was "essential" before too much work had been done on it. It allowed him to clear the plan rather than the written rule or amendment. If the request was not disapproved within forty-eight hours, the branch could go ahead with the preparation of the amendment. These requests were almost never refused. Approved requests were handed to the drafting attorneys for the preparation of the amendment. T h e detailed implementation of the change would normally be worked out at that time by the attorneys. If the suggestion had not been completely explored, part of the "policy" thinking would be done by the drafting attorneys, or an issue might be raised between the planners and the attorneys that would take some more time to iron out. T o avoid these difficulties, the fuel oil branch chief early in 1944 provided that the request would be written in some detail by the person most qualified to write it and cleared by all interested parties in the division before drafting of the amendment began. In this way, he felt he was bringing all uncompleted planning and latent issues out in the open before the drafting attorney had acquired a vested interest or pride of authorship in his completed draft of the amendment. In other words, agreement on details between the attorneys and the planners was easier to reach before the amendment had been drafted. After the amendment was drafted, procedures writers studied it to determine if further instructions to the boards or the field were necessary. Since most rationing regulations went to boards in the annotated form, 1 the procedures writers added sentences here and there between the lines of the amendment wherever they thought it necessary, if the attorneys agreed. If forms were required, work was begun on them by the procedures people simultaneously with or before the drafting of the amendment. If the change was to take the form of an interpretation, no request was prepared as a rule, and procedures writers usually did not

6o

THE PLANNING PROCESS

come into the picture. Sometimes an interpretation would be inserted bodily into the board looseleaf as an annotation. Many of the annotations were actually drafted by the attorneys. All were cleared by them. In the fuel oil rationing program, the annotation system was never adopted, and, as time went on, it became the practice to hand the request first to the procedures writers for the preparation of a board or field instruction. T h e attorneys then drafted an amendment around the instruction—that is, around a proposal for change which had been completely implemented by the procedures writers. This shifted the detailed procedural implementation and integration to non-attorneys—to persons presumably specialized in administrative problem-solving. After the necessary documents were prepared, they had to be "cleared." Most of this work went to the procedures writers who had developed as experts in clearance. T h e drafting attorneys secured all legal and enforcement clearance, and the procedures people the rest. Clearance is part of the hierarchical relationship and will be discussed more fully in Chapter 10. Here only the scope of rationing clearance will be indicated. All amendments and other legal documents cleared three levels of the rationing legal division. All documents and forms had some legal clearance. Any document or form which was of interest to enforcement was cleared by at least one enforcement attorney. All documents and forms involving record-keeping or reporting requirements for more than ten members of the public were cleared with the rationing statistical division, the OPA statistical standards division, and the Statistical Standards Division of the Bureau of the Budget. All other documents and forms involving O P A field statistics and reports were cleared with the rationing currency control division. All documents and forms were cleared by the rationing planning division (later special assistant to the deputy administrator for program planning). All documents and forms involving field or board action were cleared by the rationing field division (later special assistant to the deputy administrator for field coordination) and the O P A office of board management. Every amendment had to be submitted to the information department for the preparation of a press release, or a press release waiver secured from that department. Most documents and forms were cleared by the deputy administrator or his assistant deputy. All amendments were finally cleared by the division director in most rationing divisions. Although the rationing divisions also had centralized units, such as field, statistics, etc., their clearance was usually not required although it was often obtained. Manv of these clearance points had several levels. Usually, one person would be assigned to certain programs, and his clearance was usually final.

THE FORMAL PLANNING PROCESS

6l

Sometimes, however, higher levels in the clearance point became involved, and, in this way, the clearance described could be doubled, if not tripled. A f t e r all clearances had been obtained, the amendment was transmitted by the O P A secretary to the Federal Register for issuance and publication. T h e issuance date was the date the amendment was made available to the public and the press release was released. Some time after that the amendment became effective. A t the same time the amendment was sent to the Federal Register, the board instructions went to the printer of the board looseleaf in N e w York City. In the early days of rationing, the planners were so anxious to let the public know that they had solved some problem that they insisted on immediate issuance and effective dates. Since it took boards two or three weeks to receive their instructions, immediate effectiveness of a rule was a delusion and involved the boards in embarrassment. Consequently, an agency rule was issued which provided for a waiting period of several days before an amendment could be issued and a further waiting period before it could become effective. T h e s e waiting periods could be waived by the deputy administrator. T h e final waiting or timing periods in rationing were ten days before issuance and four days after that before the amendment became effective. SPECIAL

PROCESSES

In certain areas where the rules were particularly important to business or the conduct of an occupation, special rule-making or planning processes arose. This development was not consciously guided with a theory that rule-making which affects business or property should have procedural safeguards thrown around it. It did reflect, however, an unexpressed feeling that property values are more important than some others and that making money is more important than spending it. One example of such a special process was the rule-making by the gasoline eligibility committee, with its oral and written petitions and its non-hierarchical decisions, discussed in the next chapter. Another example was the food adjustment policy legislation. Under food rationing, dealers' and wholesalers' inventories were fixed by reference to some past inventory situation or record of sales. Likewise, institutional and industrial users of food received quarterly allotments equal to an announced percentage of their use of food during a corresponding period in the base year ( 1 9 4 1 ) . Only those persons in the food business when food rationing started were allowed inventories or allotments. A retailer or wholesaler who did not think his inventory

62

THE PLANNING PROCESS

was fairly fixed, or institutional and industrial users who thought their allotments were not fair, could petition to Washington for an adjustment. Also, persons not in business when rationing started petitioned to Washington for the privilege of going into business. These petitions were handled by petitions sections in the various food rationing branches. There were many reasons why businesses petitioned for adjustments. Base period use was not representative of normal for some reason (strikes, fire, etc.); the applicant had acquired equipment during the base period which had not yet become completely utilized by the time rationing began ("the investment should not be turned into a liability"); or a new business had made an investment in reliance upon erroneous O P A action, etc. In the early days of rationing, many petitions for adjustment were received. During the summer of 1943, they reached a rate of 350 per week. T h e first problem with regard to handling adjustment petitions which occurred to the food rationing officials was delay in getting the petitions answered. Consequently, a divisional adjustment section was established to control the flow of petitions through the division. It was soon discovered by this section that different branches were handling similar cases in different ways; also that promises that were not in harmony with past adjustment practice were being made to petitioners over the telephone. T h e divisional adjustment section then promoted the idea of a divisional adjustment policy committee to make adjustment policies under which all petitions would be handled. After some time and difficulty in selling the idea to all concerned, particularly getting the branches to accept such a diminution of their sovereignty, such a committee was established. It was composed of one representative from each branch, one person representing the division director's office, one attorney representing the divisional counsel, and the attorney to the institutional users branch (which had many adjustment problems). T h e adjustment policy committee had authority to make divisional adjustment policy. Policies unacceptable to any of the branches could be appealed to the director's office. Before any petition could be answered, a policy had to be made by this committee. It issued "opinions" which became the law by which petitions were determined. Proper application of the policy was assured through clearance. If an adjustment policy became very well established, it was sometimes included in the regulations by amendment, thereby allowing field offices to apply the policy in individual cases. This was rarely done, however. F o r the most part, the " l a w " relating to adjustment of inventories or allotments was to be found only in the files of the food rationing division in Wash-

THE FORMAL PLANNING PROCESS

Ò3

ington. T h e food rationing officials felt that these adjustment policies had to be kept more flexible than formal amendment would allow. Dozens and dozens of rationing rules were made by the food adjustment policy committee. It granted "hearings" to some petitioners who wished to petition personally. Its decisions affectcd the profitability of individual food businesses (retailers, wholesalers, restaurants, hotels, industrial users, etc.) more than any other decisions of food rationing (except, of course, the original decisions which set the general method of determining inventories and allotments). On some occasions, the deputy administrator and even the administrator were involved in its decisions. Although the composition of the committee changed, and its chief problem became adjustments for industrial users, it continued to operate to the very end of rationing. Another special rule-making process of some importance in rationing was the method by which processed foods point values (prices) were set. These point values were set each month on the basis of complete reports of wholesalers' stock movements, a sample survey of consumer-buying tendencies, and a sample survey of retailers' stock movements. If the point value of any item was set too high, the movement of that item would be slowed or even stopped. Consequently, food wholesalers and processors had a financial interest in food point values. In order to quiet criticism of the point-setting process and to obtain additional "practical" information, the processed foods rationing branch established two industry point-setting committees in February of 1944 — a canners' committee and a distributors' committee—from nominees of the food industry. T h e committees' membership was determined by the food industry. Each committee had five or six members, and met separately in Washington once a month with four members of the branch. T h e distributors' committee met with members and under the auspices of the distribution section of the branch, and the canners' committee met with members of the supply section of the branch. T h e branch chief usually attended. T h e branch personnel laid the figures before the committee and a vote was taken on each item, the government members not voting. T h e committee members supplemented the statistical material with the type of industry knowledge which is not readily reduceable to statistical proportions, and also with their own desires. T h e recommendations of each committee and of each of the branch sections involved and the recommendations of W F A were submitted to the branch chief for final decision as to the next month's point value of each item of processed food. If all or most of these recommendations

64

THE PLANNING PROCESS

were the same, he accepted them. If there was considerable variation, he made an independent decision, usually following, however, one of the recommendations. T h e recommendations of the supply section were most objective and usually, though not always, were accepted. As in the case of adjustment policy decisions, point value decisions sometimes got the attention of the hierarchy, although the branch decisions apparently were never changed or overridden by the hierarchy. T h e hierarchy was afraid to set point values independently because the necessary facts upon which to base a point value decision were located solely in the branch, and only branch personnel were experts in interpreting those facts. T h e industry point-setting committees also adopted resolutions on food rationing matters other than point values. These resolutions were followed whenever the food rationing officials felt they could do so without violating their responsibility to the public. An example of such a resolution is the one adopted by the distributors' committee at its meeting on April 16, 1945. Be it resolved: That this committee is unalterably opposed to the validation of any processed foods currency such as 5 point spare stamps, reissuance of blue tokens, issuance of 5 point stamps of any kind for the purpose of providing means for making a point value ending in any other figure than a multiple of 10 or for any other reason. Be it still further resolved: That this committee wishes to be on record as being opposed to any rationing action which would lead to additional use of time or labor by already overworked and undermanned food distribution outlets such as wholesale, chain and retail stores. Although stamps of denominations smaller than ten would have made better rationing from the standpoint of the consumer, they were not used because of industry opposition (they had been used in the early days of food rationing). T h e industry point-setting committees met every month in Washington from March, 1944, through July, 1945 (with the exception of October through December, 1944, when most foods were unrationed). Processed foods branch personnel thought the committees were very helpful, and, to a large measure, having the committees participate in the point-setting process quieted criticism of that process. T h e special rule-making processes in rationing arose spontaneously in areas where many decisions had to be made continuously about matters which significantly affected the conduct of a business or an occupation. T h e special processes theoretically assured greater deliberation before decision and more uniform treatment of similar cases. T h e special processes were deliberative processes which brought many minds to bear

THE FORMAL PLANNING PROCESS

65

upon a problem. They tended to secure decisions for reasons which could be made acceptable—that is, they tended to secure non-arbitrary decisions. They also tended to secure a uniformity and continuity in thought which made for uniformity in decision—that is, non-discriminatory treatment. T h e special processes were more formal than the normal process described above, and their adoption illustrates to some extent the role of form in the securing of justice. T h e types of decisions for which the special processes evolved also indicate to some extent our ideas about the content of justice. THE INTERPRETIVE

PROCESS

T h e interpretive process was that substantial part of the planning, "policy-making" process that was assigned to the legal organization under the guise of its monopoly of the right to give "official interpretations" to the rules. W h e n the meaning of a specific section or sentence of a ration order was requested, the reply, if prepared by the attorneys, was an "official interpretation." Interpretations of the ration orders by boards, or correspondence clerks in Washington, or anyone else, were not official interpretations unless specifically agreed to by the attorneys as such, and could be disregarded as far as the attorneys were concerned. In Washington, every written word was cleared by the attorneys to make sure that it did not state the rationing law incorrectly. Although the non-legal rationing officials were presumed to make the rationing law, only the attorneys were presumed to know what it was. T h e attorneys' function of interpretation extended throughout the field. As early as March 4, 1942, instructions were issued that attorneys were to be appointed in each field office, and local boards were to send all requests for interpretations to the attorney in the nearest field office. T h a t is, when boards did not think they could interpret a rule they were to ask the attorneys. Whenever a field attorney issued an interpretation, a copy was sent to the corresponding Washington attorney for "postaudit." If he disagreed with the field attorney as to the meaning of the words in question, he overruled the field attorney and sent him the "correct" interpretation. Then, any action taken under the "incorrect" field interpretation would have to be undone, if possible (for example, erroneously issued rations recalled). If the Washington attorney thought the question was important, he digested the memorandum containing the interpretation (either his own or the field attorney's if it was correct), and sent the digest to the rationing general counsel's office. T h a t office got the digest mimeographed and mailed to all field attorneys for insertion in a makeshift looscleaf of official interpretations. T h e digests

66

T H E PLANNING

PROCESS

were also included in the commercially printed OPA Service, the attorneys' looseleaf. If the post-auditing attorney did not think the question was important, the official interpretation remained unknown to many people. T h e interpretive monopoly of the attorneys was partly a result of notions of the role of the government attorney, partly the result of an early power play, and partly the result of strange legal notions held by both attorney and non-attorney. T h e attorneys in OPA at the outset were government attorneys. They were familiar with "old-line" agencies which administer a fairly complete congressional statute. Interpretation of the statute by the courts soon builds up a fairly elaborate case law which only the attorneys can "find." T h e attorneys are very important legal advisers in those "old-line" agencies, and they wanted to be equally important in OPA. Since rationing statutory authority was less than one sentence long, there was very little for courts or attorneys to interpret, and no case law developed. OPA made its own rationing law by administrative legislation, and so the only laws that the attorneys could interpret were the rationing regulations. In addition to ideas about the role of the government attorney, it is fairly certain that the first general counsel, an intimate adviser to Henderson, advised the type of organization which would make the attorneys as powerful as possible without giving them actual public responsibility for OPA policy. This was a pattern familiar to him because of his S E C experience. Undoubtedly he felt that such a pattern of relationship was in the "public interest"—that the independent veto power of the attorneys would protect the public against "arbitrary and discriminator}' action" and undue influence of special interest groups. Part of his power strategy, unquestionably, was to give the interpretive monopoly to the attorneys. This assured that they would clear every released document for its conformance to the OPA law. Finally, there was the notion, both among attorneys and others, that the written word has an inevitable meaning that only attorneys are trained to find—that interpreting the written word is a professional function which involves no will or choice. This notion of the professional nature of the interpretive function was undoubtedly strengthened by the teaching in this country that "Congress makes the law, the President applies it, and the Courts interpret it." T h e attorneys assumed the role of the courts. The only instruction given to attorneys on how to interpret the rules was a tacit one that interpretations should not be overruled by interpretations. (Such a practice would suggest the idea that the meaning

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of the rule is not fixed and inevitable.) Of course, Washington interpretations could overrule the regional interpretations and the regional interpretations could overrule those of the district offices. The tacit rule really meant that one office should not overrule its own interpretations by interpretation. This rule, though usually followed, was sometimes disregarded, and some interpretations did overrule previous ones. Often the first assignment of a new attorney was to answer requests for interpretations. He had no guides or canons of interpretation given to him. He did not seek the original intent of the rule or ask the rationing officials about the desirability of the result of an interpretation. He researched into the legal documents and memoranda and the federal statutes, and learned the legal practices of other agencies by calling their attorneys. Frequently, he had a real technical question to decide and had to contact technical personnel in other agencies. For example, the fuel oil attorney had to decide whether kerosene was efficacious for killing bedbugs. If it was, rations could be issued for that purpose. When the fuel oil attorney was told by experts in the Department of Agriculture that kerosene would not kill bedbugs, the attorney refused to accept this advice, saying that from his own personal knowledge he knew that a bedbug would die if dropped into a can of kerosene. Whereupon he was told by branch personnel that the oil situation would not permit the use of kerosene for drowning bedbugs; water would have to do. The following interpretive episode is a rather amusing example of how meanings were discovered. Under the fuel oil rationing regulations a person who acquired oil burning equipment after a certain date could not get a fuel oil ration for that equipment. There were certain exceptions. One of the exceptions was "equipment designed and used for raising and preparing for market crops, other agricultural products, poultry, or livestock." 2 The question was whether a stove used for heating water to wash milk cans on a dairy farm came within the meaning of that exception and a ration for it could, therefore, be issued. The field attorney thought that such a stove did not come within the meaning of the section because milk was not an "agricultural product." Although this issue was settled (against the stove) on other grounds, the following exchange of memoranda illustrates how meanings were discovered in the interpretive process. MEMORANDUM August 24, 1944 COMMODITY: Fuel Oil SUBJECT: Milk as an Agricultural Product Within the Meaning of Section 1394.5001 (a) ( 19a) (iii) I have your memorandum of August 22, 1944 in which you express the

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opinion that milk is an agricultural product within the meaning of the above mentioned section. Entirely aside from the fact that I disagree with you, if you actually expressed this opinion yourself, I want to call your attention to the fact that I discussed this very question on the telephone with you and indicated that in my opinion milk is not an agricultural product within the meaning of the above section, and you agreed with that opinion. It is true that this is not necessary to the decision of the particular question that was under discussion, but for my future knowledge I would like to settle this point. T h e dictionary defines "agriculture" as follows: "the science and art of cultivating fields by use of the plow, etc.: tillage; farming." T h e word "agriculturist" is defined as a "tiller of the soil"! I have always understood that agriculture referred to the tilling of the soil and the products grown thereby, and that milk is not an agricultural product but is, on the other hand, a dairy product. If the opinion expressed in your memorandum of August 22, 1944, was actually your own you apparently changed your mind since I discussed this with you on the telephone. Will you please give me your personal opinion on this. MEMORANDUM September 1 , 1944 S U B J E C T : Fuel Oil Rationing; milk as an agricultural product within the meaning of Section 1394.5001 (a) ( 1 9 a ) (iii). This is in reply to your memorandum of August 24 ( R 2 B : L R : J N S : F B : 6676). Let me refer first to your last paragraph. The opinion expressed in my memorandum of August 22 was my opinion. But it became mine only upon the insistent persuasion of a new man, recently attached to our staff. H e is strongly opinionated and, the personnel situation being what it is, I thought it wise to defer. This opinionated associate points to the following definitions: 1 . Fair Labor Standards Act, Title 29 Section 203^ ' "agriculture" includes farming . . . dairying . . .' 2. Agriculture—Commodity Exchange Act, Title 7 Section 2 — ' T h e word "commodity" shall mean . . . butter . . .' 3. Commerce and Trade Act, Title 1 5 Section 431—'when used in this chapter (a) the term "agricultural products" means . . . dairy products . . .' 4. Winston Dictionary ( 1 9 4 2 ) "agriculture"—"farming" " f a r m " — " n . land where certain animals arc raised." He reasons (sic) that one who is engaged in farming does the things that appertain to the farm, ergo, raises cattle and poultry, and produces eggs and milk. Also he has communicated with the Department of Agriculture which informs him that milk is regarded as an agricultural product. T h e Department of Agriculture has a Bureau of Dairies. He argues that agricultural equipment was excepted from the restrictions upon new facilities because there was a shortage of all kinds of foods and it was desired not to discourage produc-

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tion; that milk is such a food, the production of which was likewise not to be discouraged. It now seems that out of deference both to him and to you and to sweet reasonableness and light as well, we shall have to amend the section. Meanwhile please temper your indignation with understanding for my position. I am veritably between two fires. T h e fuel oil rationing branch interfered to make certain changes in the handling of its interpretations. T h e attorney was to discuss the request for interpretation with the planning section of the branch before preparing the interpretation. If further information was needed, branch personnel were to get it; the attorneys were not to seek it directly. If the planning section disagreed with the attorneys over the proper interpretation or felt the result of the proposed interpretation was bad, the case went to the branch chief. If the attorneys could not be persuaded to issue an interpretation which the branch felt was desirable, the interpretation was killed and an amendment prepared instead. If an immediate answer to the request for interpretation was imperative, the field offices were instructed to act in anticipation of the forthcoming amendment. This procedure, adopted in 1944, kept the planning process integrated and prevented unknown amendments to the rules through the interpretive process. In many other branches, the interpretive process was completely uncontrolled by the responsible rationing officials, interpretations not even receiving branch clearance in some rationing branches. T h e interpretive process was a part of the planning process which had been assigned to attorneys. If the original plan or procedure was well thought out, few questions about it would have to be answered. W h e n attorneys interpreted a rule, they were completing the thinking which began when the rule was issued—they were legislating or making "policy." According to Section 1394.7707 of the gasoline regulations, a person eligible only for a " B " ration who needed "more than 650 miles per month [the ceiling] for driving between home and a fixed place or places of work" could get more gasoline under certain conditions. (This provision was the "break in the Έ ' ceiling" for home-to-work driving.) This situation had not been completely thought out, and the rule was not a complete solution. T h e question immediately came up: How long does one have to work at a place before it becomcs a "fixed place of work"? T h a t question could have been answered before the rule was issued. It was answered later by interpretation. The term "fixed place of work" does not include a place to which a person is assigned to work for a period of two or three weeks or a month. The period of assignment must be roughly equal to a three-month period, upon which the applicant's statement of need is based.

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It is obvious that this interpretation merely completes the thinking of the original rule. It is equally obvious that there is nothing in the phrase "fixed place of work" which leads inevitably or any other way to the conclusion that one must work at a place for three months before it is "fixed." In fact, the three-month rule was an arbitrary and unnecessary bit of rule-making. T h e general eligibility rules accumulated many pages of interpretations as to whether certain functions were or were not included within those rules. All of these interpretations involved the choice of desirable results. T h e y were administrative legislation. N o amount of legal training could prepare a person for an interpretation such as the following: Persons engaged in adjusting crop losses caused by hail damage are performing "highly skilled services" which are necessary to the operation or functioning of agricultural establishments essential to the war effort. They may establish eligibility for preferred mileage for necessary travel to adjust crop losses during the months in which crops are grown and harvested. N o amount of professional training or reason would lead one from the above interpretation to: "Insurance adjusters who investigate and adjust claims for an insurance company, which carries compensation insurance for, and under a contract with a company engaged in erecting a defense plant are not eligible." M a n y of the eligibility interpretations were later incorporated into the regulations, not to make them more legal but so that more people could find out about them. S o m e became board instructions. In the gasoline eligibility committee there was more legal "realism" than elsewhere in the rationing planning process, and interpretations were consciously regarded, by attorneys and non-attorneys, as an alternate way of changing the rules. For example, in the meeting of June 15, 1943, the committee rejected the petition from the Society of Friends for preferred mileage for its "ministers" because granting the petition would have undesirable results. The Committee does not recommend that an interpretation be given that these may be eligible for occupational driving. Apparently such an interpretation is possible under the wording of the Regulations but it appears to the Committee that it would be unfortunate, in view of the implications as applied to similar activities. In order to allow gasoline for traveling to large, well-managed, company victory gardens, while at the same time excluding most small amateur gardens, the committee decided to have the attorneys interpret the word " f a r m . " T h e prepared interpretation was discussed at the meeting of March 27, 1943.

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T h e initial interpretation prepared by the Gasoline Legal Section, in line with this policy, proved to be unsatisfactory from certain technical points of view. Accordingly the Committee reconsidered the problem and determined that a new interpretation should be prepared which would carry out the policy originally determined upon as closely as was possible. M a n y other examples of the c o m m i t t e e ' s use of interpretations as an alternate rule-making devicc are listed in the following chapter on the gasoline eligibility c o m m i t t e e . In t h e c o m m i t t e e , t h e interpretive process was shared by attorneys and non-attorneys. Because of t h e c o m m i t t e e , t h e interpretation of t h e gasoline eligibility rules was far less a monopoly of t h e attorneys than t h e interpretation of many other parts of t h e rationing rules. 3 T h e attorneys were capable of finding a new meaning to a rule when the result of an interpretation could n o t b e "lived w i t h . " S o m e tobacco growers destroyed their old wood-burning tobacco-curing e q u i p m e n t and obtained oil-burning e q u i p m e n t . U n d e r t h e fuel oil regulations, wood-burning equipment, with certain exceptions, was called " s t a n d b y " equipment, and to destroy a standby made a person ineligible for fuel oil. Consequently, t h e fuel oil attorney held t h a t the t o b a c c o growers who had destroyed their wood-burning curing e q u i p m e n t could not get fuel oil for their newly acquired oil-burning e q u i p m e n t . C e r t a i n southern Senators and Representatives let it be known in no uncertain terms that they would not stand for this interpretation. T h e r e was considerable unhappiness around t h e fuel rationing division until o n e of t h e staff members who had seen tobacco-curing e q u i p m e n t told t h e appropriate attorney t h a t t h e wood-burning e q u i p m e n t was like a big fireplace. T h i s presented t h e opportunity of escape to t h e attorney. Fireplaces were not " s t a n d b y s " ; they were one of the exceptions to t h e standby rule. Consequently, the attorney held that the destroyed, woodburning, tobacco-curing e q u i p m e n t was a fireplace; t h e t o b a c c o growers, therefore, had not destroyed " s t a n d b y s , " and they could, therefore, b e issued fuel oil rations for the new oil-burning e q u i p m e n t . T h e interpretive process sometimes achieved its desirable results in strange and devious ways, but it could achieve desirable results when necessary. T h e interpretive process was a part of the planning process assigned to the attorneys. Unfortunately, the belief t h a t "interpreting the l a w " is a professional and technical function kept O P A personnel from realizing this fact. Giving the legal organization a monopoly of the interpretive part of the planning process resulted in two groups of planners working on the same subject m a t t e r . In such a situation it was natural that "policy" would b e created about which t h e regular planning group,

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the rationing branch, did not know. T h u s , interpretive decisions could and did frustrate past and future decisions of the regular planning group. W h e n the fuel oil rationing branch provided hardship rations for all "residential premises" in the spring of 1944, it discovered that t h e fuel oil attorney had previously interpreted the word "premises" to mean "living space." T h u s , the hardship provision should be interpreted to allow a hardship ration for any building which had a person living in it. A n office building in which the janitor lived should have been eligible. W h e n an interpretation to this effect was prepared, t h e branch chief killed it with a pocket veto. H e held it for his clearance until warm weather arrived. A n o t h e r illustration of the right h a n d of t h e regular planning process not knowing what the left hand of the interpretive planning process was doing is taken from the minutes of t h e gasoline eligibility meeting on D e c e m b e r 23, 1942. T h e Committee believed it to be unfortunate that an interpretation had been given that military personnel could obtain transportation in these cases [riding to work in the Pentagon] although they were performing exactly the same duties which would result in the denial of eligibility if they were performed by civilian personnel. T h e representatives of the Law Department present stated that no other interpretation was possible under the present wording of the Regulations. T h e opinion of the Committee was that the matter should be straightened out by amendment at the earliest possible date and that the principle should be followed that eligibility should be based on the nature of the duties performed irrespective of whether they were done by persons in uniform or by civilians. Failure to realize that the interpretive process was part of the planning process, added to the attorneys' monopoly of the interpretive process, resulted sometimes in one planning process undoing t h e work of the other. O n l y certain of the healing professions (physicians, surgeons, dentists, etc.) were made eligible for preferred mileage by the gasoline rationing regulations. 4 Another section of the regulations allowed special rations for obtaining therapeutic treatment. T h e attorneys interpreted this latter section to allow b o t h travel t o receivc therapeutic treatment and travel to the homes of patients to give such treatment. Thus, a chiropodist (there were many others), w h i l e not eligible for preferred mileage under the former section, could get all the gasoline he needed as "special rations" under the official interpretation of the latter section. It took an amendment to restore the proper effect of the rules. Another example of the interpretive planning process negating the plans of the regular planning process was the interpretation o f the agricultural equipment exception to the new equipment rule, discusscd

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above. In order to encourage agricultural production, the fuel oil rationing regulations allowed rations for use in equipment used " f o r raising and preparing for market" agricultural products, even though the applicant had acquired the equipment after rationing began. In most cases, oil was not allowed for oil-burning equipment acquired after rationing began. As the reader will recall, the question was whether a stove used to heat water to wash milk cans came within the exception to the new equipment rule, and a ration could, therefore, be issued for use in such a stove even though it was acquired after rationing began. T h e fuel oil attorney ruled that the stove did not come within the exception, and a ration could not be issued. T h e exception stated that the equipment must be used both "for raising and preparing for market," while such a stove was only used for preparing for market. This interpretation thwarted the obvious purpose of the exception to the new equipment rule—namely, to encourage agricultural production. It is difficult to imagine equipment used both for raising produce and preparing it for market. T h e very last amendment to Revised Ration Order 1 1 (Amend. 64) restored the intended effect of the exception and overruled the interpretation. T h e interpretive process is one of individual rather than group decision. M a n y aspects or facets of a problem, overlooked by one person, would be brought out in a group discussion. Thus, the interpretive process frequently resulted in incomplete planning or planning without complete analysis. An example of such incomplete analysis in the interpretive process is taken from the minutes of the gasoline eligibility meeting on February 2, 1943. Previous interpretations have somewhat narrowed the interpretation of home to work driving. For example, if a person were driving from his home for regular work at point "A" and point " B " he could establish eligibility for such driving but could not secure preferred mileage to go between A and B. It would appear that in many cases this is illogical and unrealistic. The Law Department agreed that they would reexamine their interpretation of this situation and that it might result in taking care of the difficulties of the applicant [motion picture actors driving between sets or studios]. In this case, faulty planning in the interpretive process led to ridiculous results. W h e n this was pointed out in a group discussion, the interpretive process was set to work to correct those results—by interpretation. Another example of how the interpretive process leads to incomplete planning was the development of the rules governing the issuance of fuel oil rations for miscellaneous uses. T h e fuel oil regulations specified

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certain uses for which fuel oil rations could be issued, such as heating space, heating water, domestic cooking and lighting, etc. T o include within the regulations the many other uses of fuel oil, the ration order stated® that a ration could be issued for any "necessary purpose not otherwise specified in this Ration Order 11." At the time this rule was planned, the rule-makers were not sure what they meant by it. As questions on the meaning of this rule were presented to Washington, the interpretive process evolved a more complete plan. T h e rule came to mean that a fuel oil ration could be issued for any purpose for which there was no suitable substitute material. T h e rule further evolved to mean that a material which was unreasonably expensive was not a suitable substitute for fuel oil. (Please note that there was nothing in the nature of the refinements of the rule which precluded those refinements from having been a part of the original rule. T h e method by which they were derived was a rational process requiring no unusual information.) T h e piecemeal refinement of the "any necessary purpose" rule did not result in, and was not based upon, a complete analysis of the problem situation. A suitable substitute for fuel oil might be, and often was, another refined petroleum product. T o deny fuel oil and force the use of another petroleum product was quite meaningless. Petroleum products and refining capacity were scarce. If another petroleum product came into strong demand, there would simply be less fuel oil produced. T h e interpretive process did not carry analysis of the problem to this point. P A W , however, finally saw the self-defeating nature of the interpretively developed "necessary purpose" rule and requested O P A to correct the result of that rule. Consequently, the regulations were amended and the complete rule restated, reflecting the final thinking through or solving of the problem. 7 T h e final rule, stated in the ration order rather than in official interpretations, read: "A person shall be deemed not to require fuel oil . . . if an adequate supply of a substitute material other than a refined petroleum product is available to him at a reasonable cost." In this case, the interpretive process proved incapable of completely solving a problem left unsolved by the regular planning process, and the final thinking was done by the supply agency ( P A W ) . T h e total time it took for this disorganized and unself-conscious planning process to complete the solution of the problem was more than one and one-half years. T h e attorneys' ideas about interpretation kept the interpretive process from resulting in complete planning. In the first place, to protect the interpretive process from the charge of being a "policy-making" process, they never allowed interpretation to go far into the analysis of a problem

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or to make extensive and obvious changes in the rules. In the second place, when interpreting a rule, the attorneys were extiemely unwilling to commit themselves. They did not want to foreclose the possibility of interpreting the rule later in a slightly different situation. TTiey loathed hypothetical questions for interpretation. They refused to answer more questions about the rule than the ones necessary to dispose of the immediate concrete case. This attitude is exactly opposite to the needs of the field and the public who want all questions answered in advance, if possible. The interpretation on the eligibility of insurance adjusters, quoted above, applied only to adjusters who worked for a company "which carries compensation insurance under a contract with a company engaged in erecting a defense plant on a cost-plus basis for the War Department." It said nothing about insurance adjusters whose work related to the Navy Department. It certainly answered no questions about insurance adjusters in general. The attorneys' refusal to think through a problem completely when interpreting the rule was partly due to a failure to recognize the interpretive process as a part of the planning process, partly a protection against the charge that interpretation was a "policy-making" activity, and partly a method for keeping the rules under their control. It is also an inherited technique for maintaining legal independence (as in the court system). It results in piecemeal, incomplete planning, and intensifies the problem of instructing the field and the public. The reaction of the field organization to this noncommittal attitude and to incomplete planning in general is very well expressed in the following memorandum from an OPA regional attorney to his Washington counterpart. MEMORANDUM December 30,1943 SUBJECT: Ration Order 5C—Feed Company Representatives (Reference 73Ç:JY) Frankly we were not pleased to receive your memorandum of December 15. 1943, concerning the subject. It sometimes seems that a studied effort is being made in your office to prevent a practically successful administration of the rationing regulations. Seriously, we believe your actions are often predicated upon a misunderstanding of the manner in which local boards function. Apparently there must be a feeling in Washington that local boards wish considerable latitude in the interpretation and administration of rationing regulations. This is doubtless true of a certain type of board which wishes to act as a procurement, rather than a rationing agency. Contact with the better local boards and with district office personnel reveals that boards do not want to be advised that they may or may not find eligibility if certain things are or are not true; so often boards ask to be told definitely whether a man is or is not eligible without intellectual trimmings. The boards which wish to ration

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carefully and conscientiously find it impossible to withstand the continual pressure from the public in the face of a ruling which says a certain occupation probably is not, but may be found eligible. W e realize it is not possible to categorically state eligibility about all occupations; however, we feel definite eligibility rulings should be made where workers in a certain occupation are so generally ineligible that the rule of de minimis could be reasonably applied to the few representatives who are eligible. Here again we recognize and seek a distinction between absolute, intellectual justice, and practical success in administering the regulations. In conclusion, it should be readily acknowledged by all that exact justice in every case is impossible of attainment with the local board plan of rationing through laymen. May we suggest that substantial justice by means of categorical rulings and consequent uniformity of treatment can be accomplished in those cases where the very great portion of workers in a certain occupation are ineligible. It is this latter type of rationing which will be perhaps some day acceptable to the populace; the inequities occasioned by attempts to formulate too comprehensive rulings for practical board administration must necessarily result in bitterness and contempt toward the rationing program. May we add that we speak from practical experience in dealing with local boards and the public. Since the interpretive process was not recognized as part of the planning process, the written rules or instructions emanating from that process did not receive clearance like other rules a n d instructions did. Although an interpretive memorandum to a field attorney received clearance in some rationing branches, the clearance was usually perfunctory—as clearance of any correspondence. T h e digest of the rule, however, which was the written form of the rule for national circulation, was cleared by no one. E v e n the decision to write up the rule (interpretation) for national circulation was solely the decision of the attorney who made the interpretation. H e decided whether to digest the interpretation, and he prepared the digest, which was then automatically reproduced and circulated. T h e possible results of such an anarchical situation can be illustrated by the following quotation f r o m the minutes of the gasoline eligibility meeting for M a r c h 30, 1944. Mr. Irving Brown of the Legal Section explained to the Committee that there was a statement in the Legal Daily Digest Service to the effect that persons who are engaged in rendering tire inspection and maintenance services under contract are eligible under preferred mileage. . . . It was the opinion of the Committee that the phraseology used in the Legal Daily Digest was too general in that it might permit many persons who could not actually qualify for preferred mileage under the meaning and intent of the regulations to establish eligibility with local Boards. T h e Legal Section was requested therefore to revise its Daily Digest interpretation. Because of failure to see the interpretive process as part of the planning process, the interpretive process resulted in hidden rules. T h i s

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weakness of the official interpretation is discussed in Part I I I , pages 3 6 1 - 6 2 . T h e interpretation was quite ineffectual until much other instructional activity had given it meaning. F o r example, the gasoline eligibility committee on March 16, 1944, considered a letter from the associate director of the O D T Division of Storage, requesting that warehouse facilities be considered as "essential establishments" for purposes of gasoline eligibility. T h e N a v y , W a r Food Administration, W a r Manpower Commission and the Office of Defense Transportation all considered such establishments "essential." T h e committee agreed that such facilities should be considered essential. Whereupon, according to the minutes, The Legal Section advised that they had recently interpreted such establishments as essential. . . . T h e Eligibility Section was instructed to reply to Mr. Shoemaker's letter. . . . T h e Section was also directed to prepare an appropriate annotation for the local Board Looseleaf Service. T h e interpretive process is a part of the planning process made necessary by incomplete planning in the first instance. Sometimes the original planning cannot be complete because of lack of information and lack of time. T h e planning has to be completed later. This gradual completion of planning should be part of the regular planning process and the results communicated via the recognized channels of amendment, instruction, trade bulletin, or whatever is appropriate. There is no good reason for giving the interpretive monopoly to the attorneys. It results in bad planning, incomplete planning, and hidden rules. There is nothing in legal education which makes attorneys better able than other people to understand the written word. Of the many false ideas over which administration must stumble, the idea that only attorneys can detect the meaning of the written word is not the least important. T h e same is true of the idea that words have an inevitable meaning and that finding those meanings is a professional, technical, non-evaluative process. Incomplete planning is often a result of intellectual laziness. It is better to answer as many questions as possible in advance. Interpretation before the event is better administration. Interpretations should be part of the original rule, to the greatest extent possible. Complete thinking at the beginning, with an attempt made to answer all possible questions, would often result in discarding a proposed rule. A rule which is incomplete and is gradually interpreted creates a period of uncertainty and confusion. T h e interpretive process was a jurisdictional and irrational block to skillful rationing administration.

Chapter 3.

THE GASOLINE ELIGIBILITY COMMITTEE

ONE OF THE best examples of a group planning process in rationing was the gasoline eligibility committee. W h e n gasoline rationing was made nation-wide late in 1942, in order to save tires, the gasoline rationing branch was transferred from the fuel rationing division to the automotive supply rationing division so that the tire and the gasoline programs could be coordinated. T h e important thing to be coordinated was eligibility for rations. It would not do to give a person tires for his car but no gasoline. T h e automotive supply division immediately organized an eligibility coordination committee, composed of one representative each from the tire, automobile, and gasoline rationing branches, and one attorney assigned to each of these branches. Representatives of other parts of O P A or other agencies were asked to attend meetings when matters of interest to them were discussed. However, they did not vote. T h e automobile and tire rationing branches tied their eligibility rules to those for gasoline. Consequently, the committee gradually became primarily a gasoline eligibility committee, and the tire and automobile representatives were asked to attend meetings only when matters of special interest to them were under consideration. For this reason, it came to be called the gasoline eligibility committee. Because of the extreme importance of its decisions, their "political" nature, and their large number; because of its freedom from hierarchical control and formal procedures; and because it was an experiment in national government by a small cooperating group, a separate chapter is given to the gasoline eligibility committee. Its problems and decisions, its attitudes and values, and its governmental experiences will illuminate the chapters which come hereafter. Indeed, a study of the gasoline eligibility committee is, in some respects, a study of rationing rule-making in miniature. But even more important, it is an insight, however dim, into the conscience of the administrator and of the society which it reflects.

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Most of the story of the gasoline eligibility committee will be told from cases in its records, supplemented by the author's personal acquaintance with members of the committee and knowledge of its problems. As originally planned, the committee was to meet once a week or more often if necessary, and did so during most of its life. No changes in the automobile, gasoline, or tire rationing eligibility rules could be made until the committee had considered them. Except for a few occasions early in the committee's history, its decisions were final in the automotive supply rationing division. It was ovenuled once by the Office of the Rubber Director, once by the Democratic party, and not more than three or four times by the OPA hierarchy. Thus, in a very real sense the committee's decisions were final. T h e eligibility section in the gasoline rationing branch was the secretariat for the committee; the section chief was secretary to the committee and kept its minutes. Personnel of the eligibility section undertook studies and investigations on questions of eligibility at the request of the committee. Sometimes individual members of the committee were assigned special questions on eligibility and asked to report at a later meeting. Agenda for each meeting were distributed in advance. Minutes of each meeting were intelligently recorded by the secretary. Copies of the minutes were distributed to each member. Any member could take exception to any matter in the minutes at the next meeting, but disagreement with the minutes was never a problem because the secretar)' who kept the minutes was always the chief expert on questions of eligibility. T h e important question for which the committee was responsible was whether any group of persons was important enough to the war effort or the public welfare to be given a preferred eligibility status for automobiles, tires, or gasoline. Since our economy is extremely dependent upon automobile transportation, the power to decide that question was often the power to decide whether a particular function would be allowed to continue unimpeded during the war. In this sense, the eligibility committee made more important decisions than any other group or person in the rationing department. If it is possible to distinguish rationing policy from rationing technique, more policy decisions were made by this committee than by the rest of the rationing department combined. It received and decided petitions for preferred eligibility status, written and oral, from more than three hundred different groups. Members of the gasoline eligibility section, which was the committee's secretariat, answered thousands of letters from individuals requesting additional gasoline and discussed personal mileage rationing problems

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with hundreds of individuals who came into the Census Building in Washington where O P A was housed. Groups that wished to petition in person for preferred eligibility status were asked to send in first a written statement so that the committee, or whoever was assigned to the hearing, could be prepared. T h e representatives of these groups were heard either by the committee as a whole or by one or two members of the committee, depending upon how "tough" a case was involved. There was no set procedure for such hearings. T h e petitioners presented their case in their most persuasive way and were told they would be informed of the committee's decision by letter. If the petition was not heard by the committee, whoever heard it would present a report and recommendations to the committee. If the committee felt it needed more facts before deciding, a member of the committee or the gasoline eligibility section would make a further investigation and report. If expert knowledge was required, it could usually be found in some other agency or in other parts of O P A . Rebuttals of the committee's "findings" were allowed but were not encouraged. Stenographic transcripts were not made, but proceedings were always reported intelligently. T h e committee used no rules of evidence, but it used a lot of common sense and skepticism. It was very conscious that the other party, the public, was not present. T o appreciate the following discussion fully, the reader should know a few things about the gasoline rationing program. All passenger car owners were issued small, equal " A " rations for general utility use. Persons who needed additional gasoline in connection with an occupation or pursuit which the committee did not deem essential to the war effort or the public welfare were issued supplemental " B " rations. T h e amount that could be issued as a " B " ration was severely limited by a ceiling which averaged about 400 miles per month throughout the country. Persons who needed additional gasoline for occupations or pursuits deemed essential to the war effort or the public welfare by the committee were issued " C " rations, which were unlimited. T h e applicant got as much as he needed. Eligibility for " C " rations was called preferred mileage. Most of the committee's problems were problems of preferred eligibility; most of its petitions sought eligibility for preferred mileage. Another category of rations was called special rations. These were rations to take care of some very important situation in an individual's life—that is, some non-recurring situation the committee thought was important. For example, a person could get a special ration to move his car to a new address. T h e purposes for which a special ra-

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tion could be obtained were listed in the regulations. Occasionally, the committee would be asked to decide whether some purpose should b e made eligible for special rations, such as attending funerals. Most of the following gasoline eligibility committee cases involve preferred mileage; a few involve special rations. COMPOSITION OF THE

COMMITTEE

Although at any one time the committee was composed of from six to nine voting members, during the three years of its existence a total of thirty-two persons attended meetings regularly enough to have had some influence on the committee's decisions. O f these persons, six were women; sixteen of them were section chiefs or of higher official rank; eighteen had law degrees. Their ages ranged from twenty-five to sixtytwo, the average being thirty-eight. T h e total group was far above average in education. Twenty-two had advanced degrees, either law degrees or master's degrees. Four of the attorneys had J.D. degrees. Of those without advanced college degrees, one had graduated from college and five others had some college training, making a total of twenty-eight with some college experience. O f the four remaining, two had graduated from high school, and two had not. Several of the college graduates were honor students. Of the fifteen representatives from the legal division, ten had had some private law experience, but only seven had had more than one and one-half years of such experience. Seven were government attorneys, and one was a law professor. Another law professor was not hired as an attorney. O f the seven government attorneys, four had given up unsatisfactory private practice to become government attorneys. Both law professors had some experience with private practice before becoming law professors. None of the attorneys, except the law professors, had had any important experience in work other than legal work. They came from all parts of the country, New York City having a very slight edge in that one attorney was educated there and two practiced there. The teaching profession was represented by six persons. Two were law professors, as mentioned above. Two others had had some modest experience in the lower echelons of college teaching, one having been engaged chiefly in school administration. T h e other two had taught in high school, one having been a high school principal before the war. The experience of the rest of the group covered a wide variety of business activities. Below are listed the years of experience in various pursuits represented by the whole group, including legal and academic experience.

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(each entry is one person's experience) : Accounting Automobile Bottled Beverages 21 years 22 years 21 years 24 years 46 years, total Radio Sides Real Estate Sales Oil (gasoline) 7 years 7 years 8 years 13 years 20 years, total Textile Marketing Stenographer Stoves 3 Vz years 10 years 15 years BUSINESS

LEGAL:

Private Law Practice 1 year Vi year 5 years 1 Vi years 4 years 20 years 7 years 13 years 3 years 7 years 62 years, total

TEACHING:

Law School 7 years 14 Vi years 21 Vi years, total

Finance 4 years 20 years 24 years, total Public Safety Education 5 years Tire Merchandising 13 years

Government Legal Work 4 years 8 years 10 years 1 year 4 years 6 years 5 years 38 years, total

Other College 1 year 10 years 1 1 years, total

High School 2 years 7 years 9 years, total

O T H E R OCCUPATIONS:

Private Social Work

State and Local Government (non-legal) 12 years 7 years V2 year 12 V2 years, total Government Social Work Farming 4 years 2 years

Of the total group of thirty-two persons, only five made more money before coming to OPA than they did while members of the committee. Most of the others made considerably more money while on the committee than they had ever before made. Only four persons had made more than $5,000 per year before working for OPA. Two of them were top executives (a president and a vice-president) of large corporations, with salaries between $30,000 and $45,000 per year. On the other extreme was an attorney who had practiced for twenty years and then gave up his

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practice and entered government work for one year before coming to O P A at a salary of $2,300 per year. Excluding the two executives referred to above, the average pre-OPA salary of the group was about $3,000 per year; the average salary while on the committee was more than $4,000 per year. Sixteen were section chiefs (which usually paid $5,600 per year in O P A ) or above. THE COMMITTEE'S FUNCTION—ITS RESPONSIBILITY

GRAVE

In deciding some groups' eligibility for gasoline the committee felt that it was deciding the economic fate of the group. For example, newsreel photographers were eligible for preferred mileage, but newspaper photographers were not. T h e newspapers claimed this was discrimination and petitioned for preferred mileage. T h e committee rejected their petition because "a newspaper can exist without pictures; a newsreel cannot." 1 Results even more publicly unacceptable than putting someone out of business might result from a bad decision. On December 1 5 , 1942, the committee had denied preferred eligibility for the delivery of drugs. Some O P A field offices thought this was a dangerous mistake. Early in January, the committee received the following wire from the Dallas regional attorney: The consequence which we anticipated happened last evening. The Dallas Morning News of today carries the following headline—"Lack of gasoline delays drug delivery, patient dies before its arrival." The story points out that lack of gasoline for an emergency delivery caused a prescription for a heart ailment from a Highland Park drug store to arrive after the patient died. The prescription had been ordered by the physician approximately an hour after the delivery boy had gone off duty due to the fact that he had no more gasoline. T h e regional attorney pointed out the bad publicity this was causing and urged an amendment to make delivery of drugs a function eligible for again denied preferred eligibility for drug delivery, preferred mileage. T h e committee, after an investigation of this incident, The Committee has investigated the situation. The facts as stated in the article quoted were that the physician ordered a prescription by telephone at 1 0 : 5 5 P.M.; 55 minutes after the regular delivery boy had left. The statement is made that the boy's hours had been cut because he did not have unlimited gasoline. Alone in the store, the druggist had to take time to close it, which consumed 1 5 minutes, and he then delivered the prescription to a residence six blocks distance in his car. He was told that the patient had died before he arrived. It should be noted that the delivery was made by car and that the distance was insignificant. There is nothing in the incident which persuades the Committee that their original decision was in error.2

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Because its decisions might have serious results, the committee frequently obtained the opinion of experts. However, because the committee, not the experts, would be held responsible for its decisions, the committee had to decide independently of these opinions. (See below, pages 109 ff.) T h e committee clearly regarded itself as the interpreter of the "public interest" within its special field of competence. T o the committee, this involved insisting on a rule even though nearly everyone else disagreed with it. It meant protecting the " r e a l " interests of the people against strong public pressure, and pressure from within the O P A , to recognize actual and immediate interests, until it was overruled or " f o r c e d " to change. Right from the beginning of nation-wide gasoline rationing there was a strong demand that special rations be allowed for visits to the sick, for attending funerals, and for similar purposes. T h i s demand came from the public, from Congress, and from the O P A field organization. T h e director of the automotive supply rationing division on three separate occasions asked the committee to find a solution to this problem. Each time the committee refused to find these activities eligible for special rations. T h e division director's final request was made almost a year after the committee's first decision on the question. A t that time the committee stated its position in a memorandum from the gasoline branch chief (formerly chief of the eligibility section) to the division director. This memorandum gives a good insight into the committee's concept of its role as protector of the public interest, and so large parts of it are quoted here. [The committee felt that it could not recommend changes in eligibility] which would further increase the amount of gasoline to be consumed over and above the quota allowances. Particularly is this true in connection with the establishment of eligibility for things which depend for their importance upon sentimental considerations rather than upon direct relationship to the war effort. Strong as the arguments are for granting sick and funeral rations, it can hardly be contended, except for the slight incidental effect on morale, that they bear any particular relationship to activities connected with the war. . . . it is also appreciated fully that many Boards and countless individuals feel that the present policy is inhuman and fails to recognize public needs which many consider of the highest importance. . . . The Committee still believes that until gasoline can be made available within quotas for those things directly connected with the winning of the war and for the maintenance of essential civilian economy, no changes should be made based upon individual need except in those instances where it is impossible to hold the line without serious damage to the rationing program as a whole. T h e Committee does not believe that that point has been reached in connection with the special rations under consideration. The situation, unsatisfactory as it is,

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has been more or less grudgingly accepted by the public and by the field organization. 3 INDEPENDENCE OF THE

COMMITTEE

T h e decisions of the committee were overruled so seldom that for practical purposes its decisions were final. Those few cases in which it was overruled are briefly discussed below in order to emphasize the independence of the committee. W h e n gasoline was made subject to nation-wide rationing on December 1, 1942, salesmen were not included in the list of persons eligible for preferred mileage. T h e committee did not think that selling was important to the war effort, and the rest of O P A supported this position. Shortly thereafter, the Rubber Director (a semi-independent official within W P B ) promised the salesmen of the W e s t and Midwest, where gasoline was rationed to save tires, that they would receive different treatment from those in the East, where gasoline was rationed because of its critical scarcity. Therefore, he overruled the objections of O P A and ordered that western salesmen be given more gasoline. T h e most famous instance of the committee's being overruled was the case of the Farmers Union. T h e chief of the gasoline eligibility section in describing this case said: Over the protests of the Gasoline Branch, the Automotive Division and the Rationing Department orders were given from outside the agency to make these people eligible. The regulation was written as tightly as possible but all non-profit farm organizations, including cooperatives which could meet the tests set up in the regulations bccame eligible. Subsequently, business organizations and associations which did not qualify but which were competitors of the groups made eligible complained loudly with no avail. No satisfactory explanation was ever offered. This case is completely described below, pages 168 ff. On the question of special rations for taking entertainers to veterans' hospitals, the committee rejected the proposal many times, but the deputy administrator for rationing continued to insist on such rations until the committee finally agreed. Much the same thing happened with regard to discharge rations for veterans. T h e committee refused to allow such rations for months, but, at the continued insistence of the hierarchy, a majority finally agreed to it. Discharge rations were finally allowed, a few weeks before the end of the program. T h e committee refused to extend eligibility for furlough rations to members of the Merchant Marine, but the administrator committed himself to representatives of the labor unions and insisted that it be done. In one case, the committee, the gasoline branch, and the automotive

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supply division were ordered to take care of one man who had connections with the Appropriations Committee in Congress. T h e story is told in the words of the chief of the eligibility section. Father [Brown] was head of a religious fraternal organization. His travel was for educational and organization purposes. In no sense could this travel, however desirable, have been interpreted as eligible for preferred mileage under provisions for ministers regularly serving congregations. The Branch [upon the committee's advice] refused Father [Brown's] petition. Political pressure from certain Congressmen who held influence over agency appropriations forced action by the Administrator, who at that time was fearful of the continued existence of the agency and the price stabilization program. Orders were received to see that Father [Brown] received his gasoline. The Local Board was advised to issue rations in anticipation of an amendment. No amendment was ever forthcoming, however, because of threats [of resignation] of personnel in the Branch [and committee] and because of a realization that there would be no way or stemming the tide of preferred mileage to hundreds of thousands of other persons who could claim equal cause for eligibility. Thus Father [Brown] became the only person on record to receive gasoline by direction of the National Office and without legal basis for such direction.4 W i t h i n the automotive supply division itself, the decisions of the committee soon were accepted as final. At the very beginning of its history, the gasoline branch chief disagreed with it on two or three occasions, but even on these occasions the committee's recommendations were finally accepted. As stated above, the division director requested three times over the course of a year that special rations be allowed for visiting the sick and attending funerals, but was turned down by the committee each time. Apparently, the committee was never overruled by the division director. T h e only other recorded case where the committee was overruled was the question of preferred mileage for union representatives to maintain peaceful industrial relations at essential war plants. T h e O P A hierarchy (above the division) became committed to organized labor on this point through the O P A labor office and insisted that preferred mileage be allowed for this purpose, against the opposition of the committee. However, this union function was construed so strictly by the committee that the extension to it of preferred mileage eligibility did not do the unions very much good. All attempts by the union to gain a further extension of preferred eligibility were successfully resisted by the committee. T h e cases cited above probably were the only times when the committee's decisions were overruled. It made literally hundreds of eligibility decisions which were final, most of them never being questioned by the O P A hierarchy. T h e committee was a government within

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a government, an agency within an agency. This being so, it would be willful blindness to refer only to the formal OPA organization in a study of the eligibility rules of gasoline rationing, in many ways the most important rules of that program or any rationing program. T H E C O M M I T T E E AS A N A T I O N A L "CLEARANCE POINT" Because gasoline is so important to our way of life, in almost any project involving a great deal of human activity gasoline will be placed high on the list of necessary resources. This fact put the committee in a very strategic position with regard to other government programs which depended upon any appreciable amount of voluntary activity by the public or parts thereof. Gasoline was important to these voluntary programs either to enable members of the public to carry out their part of the program or to "bribe" them to do so. This fact brought many agencies, most of whom believed the war could be won with good will and patriotism, to the gasoline eligibility committee for special consideration for their "constituents." Thus, the committee became a de facto national clearance point for these voluntary programs. Being a part of an agency whose very existence was based on the notion that the "national interest" implies national control of individual behavior, the committee received these voluntary projects with considerable skepticism. This skepticism was expressed unmistakably in the minutes. Although no one—not the President, not Congress, not OPA, not the public—expressly asked the committee to pass judgment upon these voluntary programs, it had the power to do so, and did so, just the same. Some of the voluntary programs which the committee "cleared" were as follows: 1. The State of Mississippi requested additional gasoline for its salesmen organized into an "Auxiliary Highway Patrol." 2. The Department of Agriculture requested additional gasoline for people who cultivated victory gardens. 3. The Department of Agriculture requested additional gasoline for fertilizer salesmen to help install and explain a voluntary fertilizer rationing program. 4. Kansas City incorporated many volunteer workers into the government, thereby making them eligible for "official mileage" rations. 5. H O L C requested additional gasoline for real estate men cooperating in some of their programs. 6. The Department of Interior requested additional gasoline for amateur salmon fishermen to increase the national food supply.

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7. W P B requested additional gasoline for volunteer salvage workers. 8. T h e Department of Agriculture requested additional gasoline for seed buyers as a means to get seeds moving to markets more quickly. 9. P A W requested gasoline for oil lease negotiators as a technique for increasing production. There were many others. In passing upon these requests for additional gasoline, the committee was influenced by its evaluation of the purpose of the program and the effectiveness of the technique adopted to accomplish the purpose. T h e following examples will make this clear. A legal interpretation had said that victory gardens were not farms. Hence, persons who cultivated them were not eligible for preferred mileage as farmers. However, some large companies maintained hundreds of acres under competent and constant supervision for use as victory gardens by their employees. T h e committee desired to recognize these large plots, which were, for practical purposes, farms. This question was discussed on March 3, 1943. " I t is recommended that we consult the Department of Agriculture to see if some agreement can be reached as to which type of project of this character could be included for consideration while cutting out mileage for the operation of individual gardens by amateurs whose enthusiasm exceeds their productive abilities." Here the committee unquestionably passed judgment upon the victory garden program as a technique for increasing the national food supply. T h e question was again discussed later in the month, but no decision was reached. This time the committee clearly indicated lack of sympathy for the purpose, or at least the result of victory gardens. It must be borne in mind that this food supply, irrespective of its amount, is raised for personal consumption for the sole benefit of a small portion of the community. It should be remembered too that it is not proposed to reduce any food rations because of the possession of vegetables raised in these gardens.5 In Februar)·, 1943, the Department of Agriculture issued Food Production Order N o . 5, which was a fertilizer rationing program. T h e Department planned to do part of the installing and educational work of this program through fertilizer salesmen rather than depend entirely on the county war boards. Consequently, it requested that additional gasoline be allowed these salesmen. T h e gasoline eligibility section urged the Department to use some other technique of education, and at that time the Department of Agriculture and W P B agreed to do so. Six weeks later, the O P A received a memorandum from the Department of Agriculture again urging preferred mileage for fertilizer salesmen "because of the limited time and in view of the lateness of the season." T h e Department claimed that it could get the cooperation of these sales-

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men if OPA allowed them more gasoline. The committee was very impatient because of the failure to find some other technique of education, as had been agreed six weeks earlier. "Apparently no plan was adopted and we are now requested to grant mileage to salesmen 'because of the lateness of the season.' " The committee was unwilling to grant preferred eligibility "to salesmen [merely] because they express a willingness to explain government programs." Most salesmen would "express [such] a willingness" in order to get more gasoline. More important, however, the committee did not think the technique adopted was necessary to the purpose. The Committee is not qualified to express an opinion as to the complexity of the program although it has been furnished with a copy of Food Production Order No. 5. It would appear, however, that a reasonable explanation should be possible by other means than by personal contact. In any event the Committee does not recommend that such contact be established by granting unlimited gasoline to salesmen.® The petition was denied. Being part of the rationing department of OPA, which had installed many programs infinitely more complex, the committee quite understandably acted as it did. Early in 1944, the Department of Agriculture became alarmed because field seed was not moving to market fast enough. The Department decided that if seed buyers were made eligible for more gasoline, seed would move to market faster. Therefore, it asked OPA to make seed buyers eligible for preferred mileage. The committee investigated this situation and found that farmers were holding their seed for higher prices, although current prices "are far above normal . . . [and] last year's production . . . was somewhat above average." The committee did not believe that increased activity by seed buyers was the correct technique for getting seed to market. What was needed was an "intensive education campaign on the part of responsible government agencies, which . . . is designed to convince farmers that present prices will not be increased." 7 Such a campaign, in fact, was being planned by the Department of Agriculture. Needless to say, the committee denied the request to make seed buyers eligible for preferred mileage. In March of 1943, the committee considered the value to the nation of the Physical Fitness through Physical Education Program, the U.S. Office of Education equivalent to the German Macht durch Freude program. A brief was presented and an oral hearing granted before two members of the committee on a petition for preferred mileage to transport athletic teams between schools. The hearing was attended by representatives of the Texas Association of School Administrators, an Army colonel, an Air Corps major, a Navy lieutenant, two officials from the

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Office of Defense Transportation, and three officials of the U.S. Office of Education. It was contended that the physical education program in schools was an essential part of the war program and that it could not be carried out without the use of passenger cars for transporting athletic teams between schools. T h e committee considered this petition on March 16, 1943. Following are excerpts from the minutes of that meeting. . . . [The Army colonel] indicated that it was his judgement and that of other Army officials that no amount of routine physical conditioning could take the place of the mental and physical conditioning which persons received by participation in competitive sports. He stated that such participation not only aided physical development but that it made for mental alertness and self-reliance which were invaluable for combat troops. He believed that the lives of many men would be saved if there were more widespread training of boys along these lines and that the program of the Army would be greatly simplified if inductees were largely drawn from the ranks of former participants in inter-scholastic sports. [The Navy lieutenant agreed.] . . . He stated that the Navy program for fliers included a large amount of athletic competition for the purpose of developing those qualities to which Colonel . . . had referred. This opinion was confirmed by [the] Major . . . as reflecting the opinion of the Army Air Corps. [The president of the Texas Association of School Administrators pointed out that the U.S. Office of Education was sponsoring this program for widespread participation in competitive sport.] He believed, however, that as an incentive sucn participation must include the possibility of representing the school on a final school team which was able to compete with other schools. This opinion seemed to be held by the representatives of the Office of Education wno were present and by the representatives of the Army and Navy. In spite of this array of supporting talent, the committee denied the petition. It had no difficulty in making its decision, as the minutes show. A s a matter of national policy, it favored intra mural sports over interschool athletic competition, "which provides for participation by a very small number of boys." T h e Committee was not impressed by the arguments in favor of the necessity of providing mileage for teams engaged in inter-scholastic sport. Admitting all that is said in favor of such competition, nevertheless it provides for participation by a very small number of boys at the expense of a substantial amount of rubber. It is not believed that the removal of the final step of interschool competition will prevent a successful and orderly development of intramural sport. JUDICIAL N A T U R E O F T H E C O M M I T T E E ' S

DECISIONS

Administrative action has frequently been classified into legislative and adjudicative action. This distinction is sometimes hard to maintain. In

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the decisions of the gasoline eligibility committee, the distinction sometimes disappeared entirely. Quite often before deciding on a petition for preferred eligibility status, the committee insisted on having information on the exact number of persons who would be affected by a favorable ruling, the total number of miles of driving involved, and even, sometimes, the location of the persons who would be affected. Occasionally, the committee came to an agreement with the petitioner as to these matters. F o r example, when W P B asked for additional gasoline for its volunteer salvage workers in September, 1943, a member of the committee negotiated with members of the W P B Salvage Division, and an agreement was reached as to how many members of the local salvage committees would need the additional gasoline and how much they would need. Occasionally, the number of persons involved in a petition for preferred mileage was so small that the committee was actually passing upon an application for gasoline by definite individuals. T h e committee's approval of the application would take the form either of an amendment or an interpretation of the existing regulations. F o r example, in April, 1945, the American Cyanimide Corporation petitioned for preferred mileage for a dozen or so of its factory representatives who traveled to Army and N a v y establishments to give instruction in the use of hydrocyanic fumigant. This fumigant was dangerous to use, and the Army and N a v y insisted that the visits by these factory representatives were essential to the safety of members of the armed forces. T h e committee agreed to amend, thereby, in effect, granting rations to a few determinable persons by amendment of the rules. 8 A n even better illustration of "adjudication" by "legislation" was the decision on the petition by the American College of Surgeons for preferred mileage for a field staff of three doctors. This petition was considered by the committee on January 1 2 , 1943. The legal members of the Committee believe that if the services were as described, these persons might be eligible under the present Regulations. It was decided to refer the matter back for further consideration by the Gasoline Eligibility Unit to determine whether the facts justify an interpretation of eligibility. In this case, the committee was passing on the applications of three doctors and using a fact-finding body, the eligibility section, to help it determine the facts. 9 ADMINISTRATIVE

IMPARTIALITY

T h e committee showed no partiality in passing upon questions in which it or some of its members might have been expected to have a

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special interest. F o r example, early in 1943, the American Bar Association and several state bar associations petitioned for preferred mileage for attorneys. Although half of the committee members were attorneys, their recommendation, accepted by the committee, was to deny eligibility for general legal practice. Only attorneys in rural areas, whose duties required their attendance at courts a long distance off, were made eligible for preferred mileage. 1 0 T h e committee showed no preference for volunteers working on O P A programs. In January, 1943, the Denver regional administrator requested that preferred mileage be allowed to tire inspectors. T i r e inspectors were tire dealers chosen by O P A who, without compensation from O P A , inspected an applicant's tires before he could be granted a certificate for new ones by the local board. This request was denied. 1 1 T h e following April, the committee denied the petition of the National Association of Independent Tire Dealers that tire inspectors be made eligible for preferred mileage. T h e committee did this on the recommendation of its representative from the tire rationing branch. 1 2 In February of 1943, the Office of Defense Transportation proposed to amend its regulations to deny Certificates of W a r Necessity in excess of one round trip a day to buses used to transport teachers to schools. A bus without a Certificate of W a r Necessity could get no gasoline. T h e tire rationing branch asked the committee's advice as to whether it should amend its regulations to accomplish the same result for tires. T h e purpose of the O D T amendment was to prevent school buses from being used to transport school teachers to O P A ration book registration sites. T h e committee agreed "that in all probability this was an uneconomical use of rubber," and recommended, that since bus transportation was an O D T matter, O P A should follow its lead. 1 3 LACK OF JURISDICTIONAL

JEALOUSY

T h e committee did not display the familiar bureaucratic imperialism of government authorities—the tendency to enhance jurisdiction. In the case cited just above, the committee was perfectly willing to defer to O D T even though an O P A program was being disadvantaged. On March 3, 1943, the committee considered the question of preferred eligibility for passenger cars used for delivery purposes. This question had come up repeatedly in connection with such activities as the delivery of drugs. T h e committee always denied preferred eligibility for delivery purposes. However, a light delivery truck used for the same purpose came under O D T jurisdiction and could get as much gasoline as O D T allowed on its Certificate of W a r Necessity. T h e committee did not like

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this inconsistency and recommended, as a solution, that O P A give up part of its jurisdiction. T h e Committee believes that logically cars actually used in delivery service should be considered as part of the merchandise carrying facilities of the country rather than as passenger cars. They should be considered and controlled by the agency charged with the duty of supervising general freight and merchandise delivery. That is the Office of Defense Transportation. [The committee recognized, however, that] we should face frankly the probability of greater mileage being issued under Certificates of War Necessity than under our passenger rations. A t the meeting of July 1 2 , 1 9 4 5 , the chief of automobile rationing "outlined the difficulties in attempting to set up eligibility standards whereby veterans would be able to obtain certificates [for new automobiles] on the ground merely that they were war veterans." H e proposed that O P A should give the Veterans Administration a quota, thereby allowing it to ration veterans on the basis of its knowledge of their needs. " T h e plan met with almost immediate approval by the Committee with several opinions expressed, however, that the Veterans Administration would not agree to such a plan." NEED FOR

SKEPTICISM

Nearly every person or group who petitioned for additional gasoline claimed an important relation to the war effort or the public welfare. "Relation to the war effort or the public welfare" were the magic words the petitioners used to open the door of preferred eligibility. Identification of individual interest with public interest came very easily. A Colorado Congressman thought amateur hunters should get additional gasoline because "an urban hunter or fisherman, if allowed to go and if successful, can get about $142.00 worth of game and fish." 1 4 T h e Detroit Sportsman's Congress thought amateur fishermen should get additional gasoline because "the fish secured is a valuable additional contribution to the nation's food supply and would amount to at least 500,000,000 lbs." 1 5 P A W and the Fish and W i l d l i f e Service of the Interior Department thought that additional gasoline for amateur salmon fishermen in the Puget Sound area (State of Washington) "would produce a significant increase in the fish catch by amateur fishermen." 1 6 T h e Boy Scouts of America requested additional gasoline for distributing war posters. 17 T h e Michigan Music C o m p a n y requested additional gasoline for installing " M u z a c " equipment in war plants because "absenteeism was reduced after the installation of M u z a c . " 1 8 Some Washington, D . C . , ministers requested additional gasoline for people attending church be-

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cause the church "is a morale builder of great importance to the war effort." 19 There were dozens of similar contentions. 20 T h e committee received such requests and contentions with considerable skepticism. It had to be "shown." It was always conscious that the "public" was not present to challenge a facile identification of a private interest with the "public interest." It was frequently skeptical of the value claimed for the service or function or of the need claimed for additional gasoline to perform the function or provide the service. It denied the petition of the Children's Theatre of New York for additional gasoline to enable it to combat "the allegedly pernicious influence of the motion picture and the comic strip," because "in the opinion of the Committee the Children's Theatre of New York does not bear a sufficiently direct relationship to the prevention of child delinquency to warrant the issuance of preferred mileage." 21 T h e cases cited in the section on the committee as a national clearance point further illustrate the committee's skepticism. T h e committee was not only skeptical as to the value of a function or proposed program, it also was frequently suspicious of the real motives of the petitioner. T h e committee rejected the petition to make newspaper photographers eligible for preferred mileage, among other reasons, because "it is suspected the real reason newspapers desire eligibility [for photographers] is to obtain transportation for reporters." 22 It rejected a petition, supported by a responsible O D T official, for preferred mileage for railway claim agents, stating: " T h e Committee is not convinced that this letter [from the O D T official] is entirely unbiased. It is sent because of the activities of the counsel for the railroad claim agents." 23 Although the committee saw some basis for making real estate repair superintendents eligible for preferred mileage, it rejected a petition to do so because "it would be impossible to draw a regulation which would not let in persons who were actually making general inspections on property, collecting rents and doing many of the other things for which the Real Estate business has long desired to obtain recognition for preferred mileage." -4 The committee rejected without recorded explanation a petition by three Washington, D.C., ministers to make church attendance, alleged to be important to war-time morale, eligible for preferred mileage, stating slyly: "They [the ministers] pointed out also that many church members live at a considerable distance from the churches which they attend and that if they cannot obtain the necessary gasoline, church attendance will fall off substantially even where some means of public transportation exists." 25 The committee's skepticism also expressed itself in an unwillingness

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to be stampeded into action. O n e horror story or one complaint did not over-excite it. W h e n the Dallas regional attorney wired that drag deliveries must be made eligible for preferred mileage because the committee's failure to do this had caused the death of a patient for lack of drugs, the committee conducted its own investigation into the reported incident, found the facts were not as stated, and refused to make drug delivery eligible. 2 · T H E COMMITTEE'S VALUE SYSTEM From the totality of the committee's decisions it is possible to abstract a body of principles which formed the committee's value system. This system of social and economic values informed the committee when making individual decisions about the importance of some function or activity to the public welfare or the war effort. T h e fact that the committee had the sometimes frightening responsibility that goes with public power, that its decisions were about an extremely subjective question, and that its decisions were accepted by our society without serious resistance indicate that the committee's value system may have been in harmony with social needs. If this is true, that value system becomes very important. Public Functions

by Private

Individuals

T h e committee carried no torch for extreme individualism and selfhelp. It believed, not only that certain functions were particularly within the competence of government rather than individuals, but also that if government was already performing some function, individuals should not be encouraged to duplicate it. It denied preferred mileage to field investigators of the Brewing Industry Foundation who traveled to improve "sanitary and moral conditions of saloons" because "they are performing duties of a detective and semi-police character which duplicate the duties of public officers charged with the supervision of public drinking places." 27 W h e n the Cleveland O P A district office reported many requests for preferred eligibility for special private police, "who are hired in many areas to provide special protection to merchants or other types of retail outlets because of the inadequacy of the local police force . . . the Committee was not persuaded that such cruising is either necessary or desirable or that private concerns should be encouraged to build up police protection outside of the public law enforcement agencies." 28 T h e petition of the National Board of Fire Underwriters for preferred mileage for its special arson agents was denied because the committee and an Army official it consulted "did not believe that the situation re-

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quired the granting of preferred mileage to private individuals to do the work which was being done officially." 28 Preferred mileage for fulltime social workers in connection with rehabilitation and vocational training of disabled war veterans was denied because the committee discovered this work was being handled by the Veterans Administration and the state boards of vocational rehabilitation. 30 T h e committee was at first unwilling to support the National W a r Fund drive with additional gasoline (perhaps because it could not see why a few of the hundreds of billions of dollars devoted to the war could not more efficiently be allocated to this purpose). Later, the committee allowed additional gasoline to National W a r Fund state directors but refused it to the C I O W a r Relief Committee and the A F of L Labor League for Human Rights, which turned their collected money over to the National W a r F u n d and the R e d Cross, because it felt the situation was adequately covered by those quasi-public agencies. 31 T h e committee was skeptical of the value of government volunteers and of government programs which depended on volunteers, as we have already seen. It rejected most of the petitions from other government agencies for additional gasoline for programs depending upon volunteers. W h e n additional gasoline for hunters was being discussed, the committee felt that "if the object is to secure meat rather than to engage in sport, hunting can best be done by game wardens or other professional hunters." 3 2 In short, the committee did not seem to feel that self-help and good intentions were substitutes for efficient performance; and it felt that government was more efficient than self-help in a great many things. Funerals Whether the committee considered our burial rites to be barbarous or primitive is not certain. It consistently denied, however, special rations for attending funerals. It also refused to recognize the manufacture of caskets as an essential occupation. T h e committee "admitted that the . . . failure of the Regulations to provide rations for funerals operates to a large degree against the mores of the American people" 38 and that "countless individuals feel that the present policy is inhuman and fails to recognize public needs which many consider of the highest importance." 34 However, "the Committee decided that, apart from sentimental considerations there was no reason for extending eligibility to such persons . . . so long as the regulations do not provide mileage needed by many citizens in pursuit of their livelihood." 35

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Religion T h e committee manifested a rather modern anti-clericalism. A n insight into its feelings about religion can be gained from its conclusion as to the importance of Sunday school superintendents. T h e Cleveland region had ruled that such voluntary activities are not eligible for nonpreferred occupational rations ( " B " rations) because they do not contribute to the public welfare. T h e committee unwillingly reversed this ruling. " T h e Committee does not feel that it is possible to state categorically that no voluntary activity regularly performed for a religious organization contributes to the public welfare." 38 T h a t was a question for the local board to decide in each case. T o the committee, the church was a social or cultural institution rather than a heavenly depot. It was an accepted part of the community life. T h e pastor who "services" a particular congregation was the only church dignitary made eligible for preferred mileage. Traveling preachers and persons connected with church organization and maintenance work were excluded.

Organization Work T h e committee consistently denied preferred mileage for any activities which had for a purpose the maintenance of an organization. T h e committee seemed to feel that persons engaged in maintaining an organization were largely engaged in maintaining their own jobs. At any rate, they were not producing something, and this was almost enough to exclude them in the eyes of the committee. Church personnel engaged in maintaining national church organizations were denied eligibility. T h e Boy Scouts of America insisted that unless preferred eligibility were extended to its 1,500 paid executives, "the organization will suffer serious loss of membership and reduction in enthusiasm and efficiency which will make the Boy Scouts a less effective national agency for service to the nation." Nevertheless, the committee denied the petition. " W h i l e it is true that there may be some lessening in efficiency due to the reduction in supervision, which would result from confining eligibility to Β rations, it does not seem probable that there will be any serious injurious effect upon the organization as a whole through the denial of preferred mileage." ;7 T h e committee simply did not feel that organization work was important work. There are many other examples of the committee's feeling about organization work.

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Production T h e economic activities which the committee thought were important were those directly related to the actual physical production of goods or serv ices. Relation to physical production was its principle of economic selection. T h e committee refused to make railroad claim agents eligible for preferred mileage. " N o claim is made that . . . railroad operation would be seriously interfered with if the petition be denied." 3 8 T h e committee denied the petition of a Fort W o r t h firm which represented many independent oil companies in several states before state tax equalization boards, helped its clients to assess the value of their properties, superv ised their compiling and filing of tax renditions, etc. " I t was the opinion of the Committee . . . that since this type of activity did not appear to be essential to the physical productivity of petroleum it could not be interpreted as an eligible service insofar as preferred mileage is concerned." 39 Preferred eligibility was denied to chain store buyers of fresh fruits and vegetables because there was no evidence "that agricultural production would be adversely affected . . . through denial." 4 0 T h e committee decided to withhold preferred mileage from farm auctioneers unless "it appears that actual interference with agricultural production is likely because of restricted mileage" of auctioneers." 4 1 Many other examples could be cited illustrating the committee's belief that production was the most important economic activity.

Distribution of Goods and Services T h e committee did not recognize the distribution factor in business as important. T h e following example illustrates this fact. W i t h P A W support, the Petroleum Industry W a r Council ( P I W C ) demanded preferred mileage for petroleum industry supervisors and field men. T h e P I W C described the functions of these men, ending "and in general supervising the entire vital distribution functions of the industry." T h e committee denied the petition, recording only the following short comment: The last phrase is really completely descriptive of what is desired. The industry wants preferred mileage to carry on all of the functions of the distributing end of the business. The Committee can see no reason why the petroleum industry is in a unique position in this regard and renews its recommendation that the petition be denied.42 During most of the war, no salesmen or sales promotional activities of any kind were recognized as important by the committee. Salesmen simply had to get along on " B " rations or get other jobs.

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T h e committee's feeling about distributive activities was probably based partly on the notion that the part of the price allocable to distribution costs was altogether too large. W h e n the committee denied preferred mileage to salesmen of hearing devices, it recorded the following remarks in its minutes: " T h e apparatus is expensive, costing approximately $170.00. It is freely admitted that the major part of this price is justified solely by the promotional and maintenance expense and that the manufacturing cost is insignificant." 43 Supervisory Activities T h e committee minimized the importance of supervisory activities, particularly the activities of traveling supervisors. For example, the committee rejected a strong request from the oil industry that men who travel to supervise company-owned service stations be given preferred mileage. 44 T h e committee also denied preferred mileage to supervisors of chain stores " a f t e r careful hearings [had] been given to the food chain operators." T h e committee admitted that with a good supervising system less experienced persons can be placed in charge of stores. Under normal conditions this may be very well the most efficient method of operation. The Committee does not believe, however, that under war conditions these companies should be permitted to use preferred mileage to take care of the supervising functions of their business. It is quite impossible to distinguish between food supervisors and supervisors covering many other chain operations, as for example, drugs, dry goods, motion picture theatres, and many others.45 T h e committee's feelings about the importance of supervisory activities was not confined to chain stores. Its very last recorded decision denied preferred mileage to area supervisors of grain elevators (where grain is stored, weighed, graded, and loaded right after it leaves the farm) because, "it was the general opinion of the Committee that these duties were regular managerial functions and as such should not be made eligible for preferred mileage." 46 On the other hand, if a supervisor were a technician traveling to supervise the work of other technicians, he might be eligible. T h e committee distinguished between the managerial-staficontrol side of organized human activity (overhead) and the program side ("operations," major functions, etc.), holding the latter to be more important. Centralized and Special Services T h e committee's feelings about the value of the managerial side of organized activity were also manifested in its decisions treating of cen-

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tralized and special services. Centralized activities were generally denied preferred mileage. Firms which specialized in providing tax assistance were denied preferred eligibility, regardless of whom their clients were.47 The committee denied preferred mileage to public accountants, stating, "There is no more reason why accountants should be recognized as such than many other professional groups rendering important legal, technical and financial services to the community." 48 Athletic

Competition

The case which demonstrated the committee's feelings about competitive sport has already been completely described. T h e committee appeared to favor intra-mural sport over inter-school competition which "provides for participation by a very small number of boys." Many people feel that intra-mural sport is a more social form of physical education, not only because it allows more persons to participate, b u t also because it is less predatory, competitive, commercialized and invidious. Whether the committee completely shared this feeling cannot be certain. However, it "was not impressed by the arguments in favor of the necessity of . . . inter-scholastic sport." The Electoral

Process

Although the committee found the desire to attend funerals was only a "sentimental consideration" and denied without discussion gasoline for attending church, it very readily allowed special rations for going to the polls on election day. It also allowed additional gasoline to candidates for public office as an aid in their election campaigns. W h e n this favorable treatment of political candidates brought some criticism from war workers and certain newspapers, the committee felt "it would be unwise to attempt to make changes which perhaps would open the way to well grounded [my italics] attacks upon the agency as attempting to limit the freedom of the electorate." 49 States

Rights

Either as a matter of political feasibility or of political belief, the committee did not attempt to restrict the official purposes for which state and local governments could use gasoline. Since state and local governments are often in competition with private individuals or firms, this fact often resulted in discrimination and unfair competition. T h e committee recognized the discriminator)· results of this policy and discussed it many times.

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The insurance people in particular feel very strongly about this discrimination. The State insurance rund in the State of New York, for example, is able to secure all the mileage which they require. We are advised that they point out to prospective insurers the more favorable service which they can give because of the fact that they are not handicapped through shortage of gasoline. As this fund is in direct competition with private operators, it is admittedly a difficult and unfair result of our present rules. Nevertheless, the committee could never see its way clear to prescribe the purposes for which state or local governments could use gasoline. Such action on the part of OPA might bring about a situation where it was claimed that OPA was attempting to control through mileage rationing what things government should do and what they should not do through the use of automobiles. Such action would undoubtedly interfere with the sovereign rights of government in a way which could be the subject of legitimate criticism.50 Whether or not "states rights" is the correct political theory for the future, certainly the responsibility of the committee's position would have tempered the point of view of the most rabid federalist. The Healing Arts In choosing among the various healing fads and cults and practices, the committee clung to those given scientific recognition. It recognized licensed physicians, surgeons, osteopaths, chiropractors, farm veterinarians, midwives, and public health nurses. Of the inclusion of chiropractors in this group, the chief of the gasoline eligibility section says: "There was always some question in the minds of the [committee] as to the correctness of the decision which allowed preferred mileage for chiropractors." Complaints came from many unrecognized healing groups, such as chiropodists, physiotherapists, naturopathic physicians, masseurs, optometrists, laboratory technicians, X-ray technicians, and many others, who felt they should also be allowed preferred mileage. The committee always discussed these requests with some unbiased scientific body, such as the National Research Council. Although the committee was very cautious in its statements and careful not to disparage these "healing professions," its feelings on the subject were adequately expressed in the minutes of the meeting on June 22, 1944, when the petition of the naturopathic physicians was discussed. "The Eligibility Committee is of the opinion that services performed bv naturopathic physicians are not rendered by persons who have been highly trained to administer medicine or medical services to the sick."

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REALISM"

T h e O P A attorneys had a monopoly of the functions of deciding what must be made " k n o w n " to the public via the regulations ( t h e drafting f u n c t i o n ) and of giving "official interpretations" of the regulations. In t h e ordinary organizational relationships of rationing, this monopoly was defended and rationalized by ideas t h a t words have fixed a n d inevitable meanings and only attorneys are properly trained to discover t h e m . In the planning process of the gasoline eligibility committee, however, there was m u c h more legal "realism." T h e attorneys cooperatively brought to the solution of t h e c o m m o n problems their own particular resources of jurisdictional power—the interpretive function and t h e function of deciding what must be made " k n o w n " to the public through publication in the Federal Register. T h e s e resources were pragmatically applied as expediency directed. T h e r e is no record of serious conflicts between the legal and the non-legal members of t h e c o m m i t t e e . O n e of the c o m m i t t e e ' s big problems was t h a t publication of a decision favorable to some group would inevitably bring many other groups, cither to the boards or to t h e c o m m i t t e e , claiming to be in analogous positions. T h e r e f o r e , as a matter of expediency, t h e unpublished and almost completely secret interpretation was t h e best vehicle or form of rule for the committee's decisions to take. T h e c o m m i t t e e used interpretations whenever it could without doing too m u c h injustice to t h e meaning of words. W h e n t h e railroad claim agents presented their petition for preferred mileage for the third time, supported by a letter from O D T which claimed that they were necessary to the operation of railroads, the c o m m i t t e e recognized that they could be interpreted as eligible but recommended against such an interpretation. T h e Committee believes it is dangerous to interpret these persons as eligible without doing the same thing for representatives of many insurance companies. However, the matter appears to be one that can be handled by interpretation if it is so desired. No amendment to the Regulations is necessary. T h e Committee recommends against an interpretation which will grant eligibility. 51 And no such interpretation was issued. Here the notion that a rule can have only one meaning which only an attorney can determine was noticeably absent. At this meeting three of t h e seven members were attorneys, and two other members present had law degrees. N o n e of t h e m had been government attorneys before their experience in O P A . W h e n the American Bar Association petitioned that gasoline be allowed to enable volunteer committees of lawyers to establish free legal

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aid service in Army camps, the committee recommended that eligibility be extended by interpretation. The Committee was of the opinion that the service was highly desirable but believed that the necessary mileage could be provided by interpretation. It would appear that it might very well be held that the services of these law committees were necessary to the operation of military establishments. Such a ruling was made in connection with bank branches. [The gasoline eligibility attorney] agreed with this view.52 At the same meeting, a local board requested "some authority or authorization in writing permitting it" to allow additional gasoline for carrying the entertainers of a commercial camp show company to Army camps. "Various Commanding Generals are quoted as being favorably impressed by the work which the . . . Shows are doing and as being desirous of having them continue." This request was denied with the following short statement: " T h e Committee does not favor the extension of preferred mileage to entertainment enterprises even in those cases where they are conducted in connection with Army camps and recommends that the petition be denied." Here the committee did not "favor . . . entertainment enterprises" and hence found entertainments were not "necessary to the operation of military establishments," but free legal advice, which the Army camps had done without for a year and a half, was interpreted as being "necessary to the operation of militar}' establishments." No one could very well argue that this interpretation was not a bit of hidden rule-making. W h e n the committee interpreted repair men as being eligible for preferred mileage, it did so admittedly on the grounds of "policy" in disregard of the words of the rule. T h e minutes of the meeting at which this question was discussed illustrate very clearly the committee's realistic approach to the use of interpretations. Several Regional attorneys have ruled that persons repairing motion picture apparatus are eligible for preferred mileage. A strict interpretation of the Regulations would probably exclude these persons because motion pictures are in the class of amusement facilities. This question should be settled on the basis of policy rather than verbal interpretation. The Committee is of the opinion that it is very desirable to keep the equipment of motion picture theaters in service and that if it is necessary to use preferred mileage for that purpose repair men should be made eligible. The same situation applies to nonportable radios and to many other appliances which, to a greater or lesser extent, are of the character which contribute to entertainment. It is suggested that since most of these appliances are no longer manufactured, because of orders of WPB, they should be kept in repair so long as possible. . . . [The senior attorney] suggested that the matter might be referred

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back to his Section for further consideration of the language in the Section and possibility of interpretation short of amendment. T h e suggestion was adopted. 53 T h i s is an excellent illustration of how the attorneys on the committee gladly contributed their special facilities to the solution of the c o m m o n problems. O f the nine persons present at this meeting, five were from the legal division, only one being a professional government attorney. T w o other persons attending also had law degrees. Perhaps the best example of legal "realism" in rationing was the committee's treatment of the rural mail carriers' two-car problem. In the gasoline rationing program, a ration was issued for use in a specific car according to the allowable needs of that car. If a person had two cars, he had to apply for two separate rations; he could not state his total needs, get one ration, and use it in either car indiscriminately. Rural mail carriers often have two cars—one for mud and snow weather and one for nice weather. T h e y found it impossible to tell t h e boards how many miles o f driving they would do in each car. T h e gasoline rationing branch received requests to allow a rural mail carrier to get one ration and use it indiscriminately between his two cars. T h i s question was turned over to the committee. T h e committee's recommendation and their reasoning therefore illustrate a high level of legal "realism" and are quoted below. T h e Committee debated the matter thoroughly. Representatives of the Legal Department felt that the best way to handle the situation would be to consider an administrative exception rather than an amendment to the regulations. [Administrative exceptions did not need to be published in the Federal Register or carry a press story, according to OPA procedures, and they were addressed and mailed to a specific person or group. However, according to OPA procedure, the rule-makers were not to use them unless they were willing to extend the same privilege to all persons similarly situated.] T h e Committee saw no objection to this solution. It was their belief that to make an amendment would necessitate the consideration of other cases where two cars were required becausc of operation under varying conditions. For example, cars operated by physicians in rural areas. It was believed that mail carriers, bccause of the regularity of their routes and the possibility of forecasting mileage accurately, were in a different position and should be treated on a separate basis. 54 T h i s meeting was attended by three attorneys from t h e legal division. T h r e e of t h e other members present also had law degrees. O n l y one of the persons with law degrees was a professional government attorney. M a n y other examples could b e cited.

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INFLUENCE OF CONGRESSMEN The committee received many petitions from Congressmen in behalf of groups or individuals among their constituencies. The views taken by the members of Congress were rarely national. They usually sought some special consideration, as did most other petitioners. No more consideration was given to these requests than to those of any other petitioner. Since the committee did not have to worry about the agency budget, it kept itself quite aloof from congressional influence. INTEREST REPRESENTATION T H R O U G H O T H E R G O V E R N M E N T AGENCIES Many persons or groups who petitioned for preferred eligibility sought additional authority for their claims by getting officials in other government agencies to endorse their petitions. Very often these officials were affiliated with the petitioner's industry. The petition of school supply salesmen was strongly endorsed by a high official in the Office of Education. 55 The petition of the American Railroad Association and the American Transit Association for preferred mileage for claim agents was supported by a prominent O D T official.58 The petition of the Motion Picture Industry for additional gasoline to distribute films by automobile was supported by the responsible official in the Office of War Information. 57 Additional gasoline for oil lease negotiators was supported by the Petroleum Administration for W a r 5 8 as was also the demand of the Petroleum Industry W a r Council for additional gasoline for traveling supervisors of service stations. 59 The petition for preferred mileage for fish net salesmen was supported by the responsible OPA price official.60 W P B officials asked for additional gasoline for hide buyers.01 O D T officials asked for additional gasoline for buyers of used automobile parts."2 Officials in the Department of Agriculture and the War Food Administration (in the Department of Agriculture) strongly supported petitions of seed buyers, poultry and livestock feed salesmen, fertilizer salesmen, and others.83 In fact, the fertilizer salesmen allowed the Department of Agriculture to fight their battle for them completely, feeling they had gasoline coming to them as a reward for cooperation with the Department of Agriculture, and resented the committee's efforts to question them directly.84 An interesting example of the attempt to gain special consideration by representation through a government agency is the case of the X Company. This company provides a national shoppers' service. Its representatives make purchases at stores and while doing so check on the

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honesty and courtesy of the store employees. Preferred eligibility for this function was denied by interpretation in July of 1943· In April, 1944, the company petitioned again, this time on the basis of contracts with the Armv to check on practices followed in Post Exchanges, prison camps, etc. T h e committee thought that travel in carrying out these contracts could be considered essential to an Army establishment and thus eligible for preferred mileage. . . . However, before taking definite action . . . the Eligibility Section was directed to secure a definite authoritative statement from the United States Army to the effect that this type of service was deemed to be necessary to the operation of Army establishments. 85 Nothing was done immediately, and on M a y 4, 1944, the chief of the gasoline rationing branch received a letter from a colonel in the Army Service Forces Headquarters, requesting an additional 16,000 miles of travel for the X C o m p a n y to enable it to carry out its contracts with the Army. T h e gasoline branch chief, a member and former secretary of the committee, talked to the colonel, who told him that " h e personally is opposed to doing anything for the [X] C o . " H e did not think their services were in any sense essential to Post Exchange operation. . . . He says, however, that Congressman — of New York gained the ear of the Assistant Secretary of War — and apparently persuaded the Secretary that something should be done to provide for mileage for [X Co.] representatives. It seems that Secretary — directed that the letter of March 4 be sent. T h e colonel said, furthermore, that the letter referred only to existing contracts and that "the Army would not put itself in a position of assisting [X Co.] to obtain recognition for preferred mileage generally." 80 After this conversation, the gasoline branch chief sent out a memorandum on M a y 10, over the signature of the deputy administrator for rationing, to Secretary of W a r Patterson, asking him to "advise us specifically whether the W a r Department is in favor of establishing preferred mileage for this work." T h e W a r Department did not renew its request, and the X C o m p a n y did not receive preferred mileage. A few of these petitions supported by government officials represented the considered opinion of the supporting agency that the additional gasoline requested was necessary to the success of the agency's program. Many, however, were the result of the sympathies generated by the past or present affiliations of the supporting officials. A t any rate, so the committee thought. It was extremely skeptical of these petitions and quite conscious of the effects of affiliation on a person's evaluation of the public interest. F o r example, late in 1944, certain Department of

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loy

Agriculture officials requested preferred mileage for poultry, dairy, and livestock feed salesmen. W i t h reference to this request, the gasoline branch chief advised the secretary of the committee, who was to discuss the request with the Department of Agriculture officials, that OPA could not give a categorical denial to the Department of Agriculture. "However," he said, "we should not overlook the practical situation as we know it to exist nor fail to take account of the previous connection of the official in the Department of Agriculture who is urging the change. It is quite natural that the Poultry Specialist who has come from the industry may be predisposed to taking care of salesmen-technicians with whom he formerly associated." 67 Preferred eligibility was never extended to feed salesmen. P R E S S U R E AS A T E C H N I Q U E O F C H A N G E Among the various factors which influenced the committee in making its decisions was the factor of pressure. Several suggestions for change in the eligibility rules were rejected because there was not enough demand for the changes. In these cases the committee did not even consider the question of importance to the war effort or the public welfare. Rejection was more a question of refusing to pass upon the petition. By the simple expedient of saying "the problem is not sufficiently general to justify an amendment," the committee members could avoid the moral strain of passing judgment. They could not do this if there was a widespread or insistent demand for the change. T h e committee decided against allowing additional gasoline for transporting prison guards from their homes to post of duty because Only two prisons, both located in the State of Connecticut, were specifically mentioned as points which were in need of preferred mileage to get their guards to duty. The problem is apparently not sufficiently general to justify an amendment to the Regulations and it was recommended that preferred mileage be denied.®8 This ability to be satisfied with a quantitative appraisal of values was valuable to the committee but was a little hard on Connecticut prison guards. W h e n the National Association of Independent Tire Dealers requested that tire inspectors (tire dealers who inspected tires for the tire rationing program ) be made eligible for preferred mileage, the committee denied the request on the advice of the tire rationing representative, who said: "Neither this Section [tire inspection] nor the Tire Industry Section has had one such request except the one about which you are familiar. It is therefore recommended that you do not include tire in-

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spectors in your preferred eligibility list." 69 If numerous demands for preferred mileage had been made by or for tire inspectors, it is probable that preferred eligibility would have been extended to them, because there could be no question about the importance of tire inspection in the war effort. W h e n the chief of the W P B Tannery Section petitioned for preferred mileage for hide buyers, the committee denied the petition because Only one complaint has been received by the National Office . . . and, moreover, Mr. Roberts' intervention in the hide buyer problem was at the instance of this sole complainant. . . . In view of the absence of significant protest against the present ruling on hide buyers the Committee does not believe it necessary to pass upon the importance of these buyers in the war effort at the present time.' 0 In June of 1945, the committee considered a proposal to provide discharge rations for servicemen. In essence this would be a bonus ration and would not logically come under the reasons for which the furlough ration was originally instituted [to transact necessary business and make social calls while on furlough]. It was believed that the public pressure was being built up to the point where such rations may have to be granted but the Committee was for the present opposed to granting this request. 71 In the last case cited, the committee recognized that pressure might force a change which the committee did not want to make. In all of the other cases cited, the committee simply denied the petitions without consideration of their merits because, in the absence of an insistent or politically important demand, it could get away with an arbitrary denial. In this way, pressure became an important factor in getting a favorable decision on a petition for preferred eligibility. A M O U N T O F G A S O L I N E U S E D AS A IN E L I G I B I L I T Y

FACTOR

Another important consideration in determining the importance to the war effort or the public welfare of some person, group, or function was the amount of gasoline which a favorable decision would cost. This consideration tended to favor groups whose membership was small or functions performed by a small number of people. In nearly every case, before a decision was reached, the committee tried to estimate the amount of gasoline which a favorable decision would cost. T h e question of the amount of gasoline involved was not relevant to a decision about the importance of some group or function to the war effort or the public welfare. However, it was extremely relevant to the function of reducing civilian gasoline consumption.

THE GASOLINE ELIGIBILITY COMMITTEE

ÎOÇ

Independent contractors with the government, such as polling concerns, tax research specialists, W a r Labor Board court stenographers, real estate appraisers for state governments, wool handlers for the Commodity Credit Corporation, and many others, were not allowed preferred mileage because they formed such a large group and would, therefore, consume a large amount of gasoline. As a former chief of the gasoline eligibility section and secretary to the committee said: The Office of Price Administration consistently interpreted that mileage of this kind could not be classified as preferred mileage under provisions of the regulations, even though certain types of travel could be considered to be important. The number of persons and the amount of travel which would necessarily have resulted through such interpretations would have dangerously affected the ability of the agency to provide preferred mileage for other more essential travel.72 Volunteer workers were generally denied preferred mileage for the same reason. Quoting from the same source: Unless mileage in excess of a " B " ration could be allowed for volunteer work it was, in some cases, impossible for such persons to participate in volunteer programs. However, the possible consequences of declaring a wide field of volunteer work eligible for preferred mileage necessarily entailed a heavy drain on gasoline supplies. . . . The Gasoline Branch consistently refused preferred mileage for these requests. . . . The amount of gasoline which probably would have been consumed through granting preferred mileage for all of these activities was obviously larger than quota allocations could stand.7® W h e n W P B renewed its previously denied petition for preferred mileage for salvage workers, a member of the committee consulted with W P B officials, not so much to find out whether this was an essential function, as to haggle over the amount of gas which would be used. EXPERT KNOWLEDGE FROM OTHER G O V E R N M E N T AGENCIES In deciding the numerous petitions for preferred mileage, the committee needed facts on almost every subject in order to evaluate the diverse claims of essentiality to the war effort. If a claim was made that the chief way hides came to market was through the activities of hide buyers, the committee had to determine the accuracy of this claim before it dared to make a decision on the essentiality of hide buyers. Many, if not most, of the petitions involved some specific technical question of this kind. T h e committee could not depend upon its own membership for this necessary knowledge nor could it organize "industry committees" in so many diverse fields. In fact, the petitions usually came

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from "industry committees" of some kind, and to get another group from the same industry or activity to help in determining the accuracy of the claims presented would have been redundant and futile, if not, indeed, stupid. However, the committee discovered that in the various departments, agencies, and bureaus in Washington there were experts in almost every field. And these experts did not by any means always have an identification of interest with the applicant. T h e committee found some authority in government to consult on every question where it felt its need of additional information, sometimes with rather startling results. Following are some illustrations of how the committee used other government experts to gain the necessary technical knowledge to enable it to pass intelligently upon the petitioners' claims. W h e n a western Senator requested additional gasoline for bank representatives who inspect rural collateral (specifically, cattle, in which he was interested), the request was denied upon the recommendation of two government experts—the Deputy Controller of the Treasury and the Chief National Bank Examiner. 74 W h e n the Safeway Stores petitioned for preferred mileage for their buyers of fresh fruits and vegetables, the committee consulted a marketing specialist of the Department of Agriculture and an official of the Fresh Fruits and Vegetables Division of the Department of Agriculture, who informed the committee that these buyers "performed only very slight services in connection with increased food production." T h e committee concluded that there was no evidence "that agricultural production would be adversely affected . . . through denial," and denied the petition. 75 W h e n it was urged that schools were experiencing difficulties because school teachers did not have enough gasoline to get to and from school, the committee consulted with experts in the U.S. Office of Education and, upon their recommendation, refused to allow additional gasoline for school teachers at that time. 76 W h e n preferred mileage was requested for special arson agents of the National Board of Fire Underwriters, the committee consulted an Army official, who told them "that the F.B.I, is charged with the responsibility of controlling this situation [in defense plants, etc.] and so far appears to have been entirely successful. He did not believe that the situation required the granting of preferred mileage to private individuals to do the work which was being done officially." 77 T h e petition was denied. Etc. Consulting with government experts sometimes disclosed facts which placed the petition in an entirely different light and made denial very easy. A large poultry feed and medicine company requested preferred mileage for their salesmen who gave the farmer "helpful advice on feed-

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ing, housing, disease, parasites, breeding, and marketing problems." W h e n the committee discussed this request with an official in the Bureau of Dairy Industry and with a Department of Agriculture poultry specialist, both of them said no harm would come from denying preferred mileage to these salesmen. " T h e veterinarian . . . concurred . . . going to the extent of calling representatives of poultry feed and medicine firms 'parasites on the poultry people.' " 78 W h e n a Congressman from a western game state requested that preferred mileage be allowed for hunters, who "can secure a very large amount of meat which will supplement the supply from domestic animals," the committee discussed the request with the responsible W P B official and discovered that on June 1 5 , 1942, all ammunition available for civilians was placed on a restricted basis and that subsequently distribution was permitted only to law enforcement agencies, farmers, ranchers and game wardens for the purpose of destroying predatory animals. T h e committee concluded, therefore, "that it would be useless to consider seriously the need for preferred mileage in connection with hunting activities since ammunition is not available." 79 A fur farm association petitioned for preferred mileage for fur farmers. " I t is claimed that large quantities of furs are used in the manufacture of clothing for military forces. It is also claimed that the fur industry is contributing large numbers of fur-lined vests for seamen in the American Merchant Marine." T h e committee discussed these claims with a consultant of the W P B F u r Resources Division who was formerly in the fur industry. He said it was a large industry but "almost exclusively engaged in the raising of fur bearing animals for luxury uses. . . . H e was very positive in his statements that none of these furs are being used by the Armed Forces as the Army and Navy consider wool superior." H e questioned "the value of the fur vests donated to the American Merchant Marine [although] the donations were accepted and the garments used." T h e committee also consulted an official of the W a r Department, who said, " T h e only fur authorized for purchase at present is a small amount of wolfskin used on reversible skis." 80 T h e committee was inclined to be skeptical of the opinions of government experts who had been or still were affiliated with the industries involved in the petitions, as pointed out above. Only one further case will be cited to show the committee's preferences for the non-affiliated government expert. A request to make hide buyers eligible for preferred mileage came through an official in the W P B Leather Section who was a former St. Louis tanner. T h e committee consulted the chief of the O P A leather price section, also an industry man, and a senior agricul-

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turai economist of the Farm Credit Administration. T h e industry men consulted "were of the opinion that if these buyers ceased to operate there might be a serious shortage of hides available for tanning." T h e economist, "on the contrary, was of the opinion that the farmers would bring most of the hides to the dealer even if the itinerant buyer was not permitted to operate. H e stated that in his opinion small butchers and packers would have no difficulty in getting hides to market." T h e committee took the advice of the economist and denied the petition. 81 If government experts recommend denial of a petition, the committee almost invariably followed the recommendation. There is only one case recorded where it did not do so.82 W h e n the government experts recommend that a petition be granted, however, the committee's normal practice was to disregard the recommendation and deny the petition in spite of it. There can be little doubt but that the committee sought the opinions of experts to gain authoritative backing for denial of preferred eligibility. A denial backed by an expert's opinion was an easier one to "live with." A n expert's opinion quieted the objections of many persons whose requests had been rejected. However, if the committee could not get such authoritative backing, it usually denied on its own authority. Following are some illustrations of this practice. In December of 1942, a number of school supply houses requested preferred mileage for their salesmen. The claim is made that many of these supplies are of a character that require demonstration and servicing and that in tne absence of preferred mileage the educational system will be deprived of trained help which will adversely affect the educational program. A letter was submitted from the Secretary of the National Education Association endorsing this position. It was the opinion of the Committee that it did not have sufficient information to justify action and the matter was referred to Miss Cahn for further investigation and report.83 A very high official in the U.S. Office of Education was consulted w h o strongly endorsed the statements of the representatives of school supply houses and also the statements made by . . . the National Education Association. Nevertheless, Miss Cahn was of the opinion that the major part of the work performed by the men in question was straight sales and promotional work and not that of technicians. She recommended that preferred mileage be denied, which the Committee approved. 81 In this case, although the committee "did not have sufficient information" to decide on the petition, as soon as it received more information from a government expert w h o recommended approval, it denied the petition. In April of 1943, a large motion picture company argued, both by

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appearance and by brief, for preferred mileage for motion picture salesmen who distribute, by automobile, government "must" films along with their regular films. It was indicated that these salesmen could not continue performing this service to the war effort unless they could get more gasoline. T h e committee consulted with the responsible official in the Office of W a r Information, who stated "that if their services were discontinued it would be necessary for the government to build up an expensive and relatively inefficient organization to do the same work. He urged, therefore, that preferred mileage be allowed." T h e petition was denied despite the recommendation of the O W I expert. It appears to the Committee that it is very unwise to grant preferred mileage for the operation of a private business which would be ineligible of itself, simply because incidental work is performed for the government quite irrespective of how important that work is. 85 If the committee was predisposed to deny such a petition "quite irrespective of how important that work is," consulting with O W I could only have been done in the hope and for the purpose of getting expert support for the denial. A final example of the use of expert opinion as a support for denial of a petition is a case in which the committee shopped around a little until it found an expert who recommended denial. T h e director of the O D T Division of Motor Transport, who was a government expert with an official interest in the subject, requested that buyers of used automobile parts be made eligible for preferred mileage for this function. T h e committee consulted another government expert in the W P B Automotive Division. . . . Mr. Smith of that Division informed Mr. Lovelace [of the committee] that no shortage of automotive parts exists at the present time and that whenever a shortage occurs we will be advised and requested to make any necessary upward adjustment in the mileage allowances of parts buyers. Mr. Smith further informed Mr. Lovelace that little danger exists that junk dealers will destroy parts, since such destruction is prohibited by W P B Order M-311 [sic!]. _ In view of the information supplied by Mr. Smith, the Committee recommended that no increase in the mileage rations of buyers of automotive parts be made at the present time. 88 T h e following December, the W P B Automotive Division woke up and requested preferred mileage for these used parts buyers. " I t is necessary that these used parts brokers be kept active in their territories so that we can divert these usable parts from the scrap pile, thereby avoiding a heavier drain on the already over-burdened new parts supply." T h e committee quickly complied with this request. 87

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ANOTHER T E C H N I Q U E FOR VERIFYING THE P E T I T I O N E R S ' CLAIMS In searching for methods of evaluating the claims of petitioners that the services they provided were extremely important to some essential operation or activity, the committee hit upon the ingenious device of asking the persons who received the services how important they thought the services were. This sometimes brought very interesting results. W h e n the head hospital consultant of W P B requested preferred mileage for hospital equipment salesmen because of the important service they provide in "the maintenance and repair of equipment," the committee consulted, among others, the manager of a local hospital. H e "stated he did not believe that salesmen were necessary although he indicated that some of them were doing good work. His opinion was to the effect that most equipment salesmen were simply annoyances." 88 T h e committee denied the petition. Later in the year, the American Surgical Trade Association requested preferred mileage for salesmen of surgical equipment on the ground that they "perform indispensable repair services for doctors and hospitals." Letters from doctors and hospitals accompanied this petition, including one from the A.M.A. and one from the American Hospital Association. These last two letters were very lukewarm endorsements of the petition. O n e stated: Quite frankly, these detail men are essentially salesmen and they make their money by the selling of goods to physicians, hospitals and others connected with the medical profession. Although they desire to sell merchandise, they also perform a service, to physicians especially, in the role of doing minor repairs on electromedical equipment. . . . I do believe . . . that it would be a great service to physicians in sparsely settled communities to permit these men to re-establish their routes. The other letter, according to the committee, "does not constitute a strong request for granting of the petition . . . but is merely a request that this Office grant the minimum mileage needs of surgical equipment salesmen if possible." 80 As a matter of fact, the doctors and hospitals solicited by the American Surgical Trade Association had written the letters merely as accommodations, without sincere conviction as to the essentiality of the service performed by these salesmen. W h e n this petition was rejected and replies sent out to the doctors and hospitals who had supported it, the administrator of a Kentucky hospital wrote back to the gasoline branch chief apologizing for taking up his time, saying, I just wanted to say that I heartily agree with your reasons for this rationing of gasoline for salesmen. I did not want to write that letter but was more or

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less forced to do so at the insistence of my various salesmen. In the first place, they normally call too often and in the second place . . . there is an adequate supply of railroads and busses.90 In March of 1943, a company which made about 50 per cent of the commercial fish nets of the country petitioned for preferred mileage for its salesmen, supported by the chief of the O P A fish price section. It was contended that direct dealing by expert salesmen with fishermen was the usual and necessary method for selling fish nets. It was necessary because of the need " f o r individual service in determining the size and character of the net to be used." It was argued that the Department of Interior and other Departments were much concerned over the probable shortage of fish. " T h e fish net people claim, therefore, that everything possible should be done to assist the fishermen to obtain suitable equipment." T h e chief of the O P A fish price section stated in his supporting memorandum: W e are very much concerned about production of fish and everything possible should be done to increase the supply. . . . Naturally, supply and demand have a marked effect on prices. I think very careful consideration should be given to the use of cars to cover coastal waters where other means of communication are lacking. Committee members held a conference with the fish net people and suggested that the competing companies should make some agreement to eliminate duplicate mileage, with, of course, "the approval of the Department of Justice." "Pending a reply to these suggestions," the committee felt "the matter should be held without decision." 91 T h e matter was again discussed at a meeting of the W P B industry advisory committee for the fish netting industry, a few weeks later. As a result of this discussion, the chief of the W P B Netting Unit renewed the petition for preferred mileage for fish net salesmen. " I t is claimed that the denial of mileage results in interference with the work of professional fishermen and the resulting reductions in the catch." T h e committee denied the petition. " I t was . . . pointed out that these sales activities are competitive in nature and that no effort has been made to reduce mileage through cooperative action." n= T o be sure that its decision was right, the committee had one of its members investigate the matter. H e submitted his report on M a y 7, 1943. H e had talked to the manager of a large fish and oyster company in Maryland. This company, typical of such companies all along the coast, purchases the fishermen's catch, often assists in financing them, and often arranges for the purchase of materials, including fish nets. T h e manager of this company stated, according to the report:

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Fish nets are ordered by the fisherman directly from the manufacturer in most cases. They are ordered through an agent only when he happens to be in the community. This is not often . . . Most of the fishermen's net orders in this locality go directly to Baltimore. W e get 7 5 % of the trade in this locality and know the fisherman's problems well. I think I am safe in saying that it would not hurt the fishing industry if there were no agents to buy nets from. You will find 99 out of 100 fishermen are going to tell the manufacturer exactly what he wants in the size of twine, size of mesh, deepness and length of the net, etc., which he knows better than the salesmen.93 A BAD PETITION CAN DEFEAT

ITSELF

It sometimes happened, but not often, that the claims made in a petition could be discredited from the logic of the petition itself. In other words, the petition defeated itself. The petition for preferred mileage for motion picture salesmen was such a one. These salesmen distribute films by automobile to motion picture theatres. They were used during the war by O W I to distribute government "must" films along with their regular films. T h e large motion picture company which presented the petition argued that the salesmen could not continue this important work unless they got additional gasoline. T h e committee first sought the support of O W I for denying this petition. However, the responsible O W I official thought these salesmen should be allowed preferred mileage. Consequently, the committee had to deny the petition without this authoritative backing. It took no great risk of impeding an important service, however, as the following quotation from the minutes will show. It appeared to the Committee that no extra mileage is required by the motion picture people because of their work in distributing government films. They would make precisely the same mileage on their own business. . . . It is not believed that the applicants are entirely sincere in their statements that if mileage is denied they will have to discontinue distributing films for the government. If they did so it would either mean that they were using such discontinuance as a club to secure allowances for their own business or it would mean that they would have to discontinue their private business, which appears unlikely. It is recommended that the petition be denied.94 DENIAL BY

REFERENCE

One of the most frequently given reasons for denying a petition was that if preferred eligibility were given to one group, it would have to be given to another. T h e committee justified denial with this rationalization both to itself and to the petitioners. That is, reference to some other group was considered sufficient reason for denial both by the committee and, apparently, by the petitioners. Denial of a petition by comparing

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the petitioner to some other person or group, whose eligibility had not been previously determined, was denial without specific consideration of the petitioner's importance to the war effort or public welfare. In the logic of rationalization, such denial by reference to another group or function works as a denial by a minor premise. T h e complete syllogism is as follows: A is not important: Β is like A : therefore, Β is not important. Petitioner Β is not going to argue how important A is. Rather he attacks the minor premise and tries to prove he is not like A . Since classification is one of the most arbitrary of intellectual activities, he can rarely prove this. T h e discussion can go on indefinitely on the point of whether Β is or is not like A , without ever considering B's essentiality to the war effort or the public welfare. Following are some examples of denial by reference to another group. In December of 1942, the National Foundation for Infantile Paralysis requested preferred mileage for seven regional directors. T h i s request was denied. The Committee was in full sympathy with the objects of the Foundation but believed that the work which it was performing was of exactly similar nature to that done by many organizations interested in public health in other fields, as, for example, the associations studying cancer, tuberculosis, deafness, blindness, social hygiene and many other fields of public service. T h e Foundation requested that it be treated on the same basis as the American R e d Cross. " T h e Committee was definitely opposed to this suggestion because of the impossibility of keeping out other organizations with a similar claim." 85 In January of 1943, the American Foundation for the Blind requested preferred mileage for social workers who specialized in instructing the adult blind. These social workers call on newly blinded adults . . . teach the use of special appliances for the blind such as Braille books, teach them home occupations, arrange for eye care in the hope that part or all of the blind person's sight may be restored and arrange to place newly blinded children in special schools for the blind. This petition was denied. " T h e Committee was of the opinion that although the purpose was worthy, the instruction of the blind was in no different category than other classes of occupational therapy." · · T h e Army requested preferred mileage for a group of volunteers who secured dogs for the Army through an organization called " D o g s for Defense." This organization was the sole procurement agency for dogs for Army use. Its members were dog experts appointed with the approval of the American Kennel Club. T h e official Army letter requesting this extension of eligibility said: " D o g s for Defense cannot continue to

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operate unless it is allowed gasoline and if it dissolves the Army will have to purchase its dogs and maintain an extensive and expensive procurement and inspection organization." Although the committee felt "there is much to be said . . . in favor of granting preferred mileage for the performance of these duties," it recommended denial of the petition, two members dissenting. The Committee was of the opinion, however, that since the problem was one of Army procurement it did not differ in essence from other procurement programs such as obtaining horses and mules and other necessary supplies.® 1 T h e petition for preferred eligibility for railroad claim agents, mentioned before, is another good illustration of denial by reference. T h e petition was presented four times. Each time the petition was denied because the committee was "persuaded that the real reason why claim agents are required to go to the scene of an accident is not so much their services in connection with getting traffic started as it is in the collection of evidence to be used in connection with possible lawsuits." A n d each time the petitioners countered by emphasizing "the incidental services which these men perform in caring for victims of railway accidents and in expediting the reestablishment of operations after a wreck." As the reader can see, this case revolved around the selection of a classifying characteristic from among a claim agent's duties. T h e committee emphasized the work of settling claims, and classified claim agents with insurance adjusters. T h e petitioners emphasized the work of getting traffic started after an accident and argued that this included them within a class described in the regulations—persons necessary to the operation and functioning of a railroad establishment. T h e question of the importance of settling claims was not discussed. SOPHISTIC REASONS FOR

DENIAL

There were a few occasions when the " n o " complex of the committee resulted in denial of a request for change without even a persuasive rationalization being recorded in the minutes. In March of 1943, the Carnation C o m p a n y protested that Section 7 7 0 6 ( v ) of the regulations discriminated against its salesmen. T h a t section had been newly added at the demand of the Rubber Director and allowed preferred mileage for many western salesmen up to 65 per cent of their 1942 mileage or 7 1 7 miles per month, whichever was less. T h e Carnation C o m p a n y contended it had voluntarily instituted a rubber-saving campaign in January of 1942 which reduced the 1942 driving of its salesmen to 57 per cent of their 1941 driving. Therefore, many Carnation salesmen could

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not get the 7 1 7 miles per month allowed to most salesmen. T h e committee shrugged off this contention with the following recorded reasoning: The Committee believes the Carnation Company does not fully understand the reasoning behind Section 7 7 0 6 ( v ) . That amendment was adopted on the assumption that salesmen in general could perform the most valuable portion of their services on 6 5 % of the mileage which they travelled in 1942. The fact that 6 5 % of the 1942 mileage of the Carnation Company salesmen is less than 7 1 7 miles does not mean that the Carnation Company is being unfairly treated. It means merely that the Carnation Company salesmen need less mileage than do most salesmen.08 Section 7706 ( ν ) had been adopted against the committee's wishes at the insistence of the Rubber Director. T o the committee, none of the mileage driven by salesmen in 1942 was very important. This fact helps to explain the sophistry quoted above. Another example of denial for specious reasons was the treatment of W P B ' s request for additional gasoline for volunteer salvage workers. T h e request was denied because of "failure of the Salvage Division to prove need for additional mileage." Whereupon the Salvage Division asked that the case be reopened. A member of the committee consulted with members of the W P B Salvage Division and reported back to the committee. Mr. Talbot [of W P B ] was told that this Office could consider increased rations for volunteer salvage collection work only if W P B were able to restrict its request to a definite and small number of potential cligiblcs and only if a very low ceiling could be set upon additional mileage issued. After some discussion, Mr. Talbot determined that W P B could limit its request to two members of each of its 16,000 local Salvage Committees and to 1 5 0 miles per person for the 6 week period of the iron and steel scrap collection campaign October 1 . The Committee recognizcd that the modified proposal by the Salvage Division was much more reasonable than the original request . . . However, the Committee noted that the Salvage Division has again failed to make an adequate showing of need for increased mileage. The small amount of mileage requested would, in fact, constitute indirect proof that no significant need exists.89 T h e petition was again denied. In this case, the petitioner was told that the petition could be considered "only if W P B were able to restrict its request to a definite and small number." W h e n the petitioner did this, the committee decided that "the small amount of mileage requested . . . [constituted] indirect proof that no significant need" existed.

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THREATS

In the strategic position which the committee occupied during the war, with its almost uncontrolled discretion over the distribution of gasoline, a petitioner w h o tried to get a favorable decision by threatening the committee did not do his cause any good. T h e committee was composed of human beings, and their reaction to threats was resistance, as the following cases will illustrate. " T h e President of the so-called 'Retail F o o d Dealers Association' " of one of the states appeared in person to get preferred mileage for his employees. This "Association" was a profit-making enterprise furnishing services to about 1,500 retail food stores in its state. T h e "members" paid dues of $ 1 2 per year, which entitled them to the services of the Association's field men in preparing their various tax returns and in other financial and bookkeeping matters. T h e claim was made that were it not for the services of the "Association," much more gasoline and rubber would be consumed by the members in securing the same assistance from other sources. T h e petitioner threatened to go to Congress if his petition were not granted. [The petitioner] claimed that unless relief were granted to him he would present the matter to members of Congress and to investigating committees and that he could see no justice in regulations which would not result in the saving of rubber but would actually mean greater consumption. The Committee was of the opinion that despite [the petitioner's] suggestions [my italics] the petition should be denied. 100 There is no record of any discussion of the merits of the petition and no recorded reason for denial. In the spring of 1943, the National W a r F u n d petitioned for preferred mileage for its state officials engaged in organizational work in preparation for the fund-raising drive to begin October 1 . This petition was denied after consultation with the executive vice-president of the National W a r F u n d , who agreed to try to get along under the eligibility rule as they then were. A special letter was sent to O P A field offices pointing out the extent of eligibility of the National W a r F u n d field officials. In August of 1943, this petition was reopened by another National W a r F u n d official, who stated that the work was lagging in nine states for lack of gasoline. . . . [He] further stated that the National W a r Fund could obtain preferred mileage through application of political pressure upon this Office, but that he preferred to operate "through channels." It later appeared that this preference was based upon the recognition that a political approach might take considerable time, whereas additional mileage is required immediately.

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. . . In view of its earlier agreement with Mr. Loosely [the executive vicepresident], the Committee believed that any change in the status of National W a r Fund representatives should be made only after further consultation with Mr. Loosely. A letter will, therefore, be written to Mr. Loosely, requesting the reasons, if any, for larger rations to representatives of the National W a r Fund. 1 0 1 T h e committee received the letter from M r . Loosely about a week later. Mr. Loosely, speaking for the Association, states that he believes only about 50 representatives actually require preferred mileage but that their need is very great and that something should be done to take care of them. The Committee believes that the National W a r Fund is a matter of great importance to the country and that perhaps provisions should be made to a strictly limited extent for absolutely essential preferred mileage. 102 T h e petition was approved. In this case, the committee needed no convincing that the function was important, but when it was approached the wrong way, it refused to deal with the petitioner and would only recognize the more reasonable M r . Loosely as "speaking for the Association." W h e n M r . Loosely made the request, it was immediately approved. APPROVAL BECAUSE OF T H E OF DENIAL

CONSEQUENCES

If denial of a petition involved consequences for which the committee did not want to take responsibility, it was known to approve the petition even though it did not think the petition was justified by any principle or criterion of importance to the war effort or the public welfare. This question came up in relation to a suggestion that war workers living in temporary residences away from home should be allowed gasoline to go home occasionally. It was contended that if these war workers were not allowed to go home occasionally to visit their families, they would quit their jobs. T h e committee surveyed eighty-one typical plants located in all parts of the country and decided to allow this type of travel in order not to be the cause of manpower problems at war plants. The Committee believes that there is no justification for weekend travel as such viewed from the standpoint of the individual worker. . . . T o give such a person an allowance for driving to his permanent home is in effect granting him gasoline for purposes more nearly analogous to vacation or furlough travel. . . . Therefore, viewed from that standpoint the Committee would be of the opinion that such driving should be discontinued entirely. However, we are faced with the practical consideration that without such driving . . . the manpower problem of many if not most of the essential war industry plants would be adversely affected. . . .

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Inasmuch as the basis for granting the ration at all is the possible effect of denial upon the operation of plants, the Committee believes it should be granted only in those cases where . . . the local labor market is unable to take care of the requirements of the plant where the applicant is employed [in the event that the applicant quits his job]. 1 0 3 As t h e chief of the gasoline eligibility section said of this week-end mileage Although no rationing principle could be found to defend action of thi; type, it was necessary to face reality. T h e Office of Price Administration found it possible to interpret existing regulations to make such travel possible. . . . T h e allowance of what was known as weekend mileage, however, resulted in a great deal of criticism of the rationing program, particularly by District Offices and local Boards who had no sympathy for this sort of thing. 1 0 4 PROBLEMS OF

CLASSIFICATION

Historically, one of the greatest principles of liberal democracy has b e e n the principle of equal treatment under the law. T h e notion of even-handed justice, that like situations should be treated in like manner, is so deep-seated in our social conscience that it need never be debated or discussed. T h e belief in equal t r e a t m e n t under the law was held with equal strength by all members of t h e rationing department. O n e of t h e basic purposes of rationing was to avoid t h e dissimilar treatment which customers receive from merchants when goods are scarce. T h e idei held by some attorneys that the belief in equal treatment was a near monopoly of t h e legal profession and that it was acquired in law school is cLfficult to understand. 1 0 5 T h e law attempts to protect the social value of equal treatment simply because it is a social value. It derives from basic liuman experiences in primary groups. O n e first learns t h e value of equal treatm e n t when mother gives brother t h e biggest piece of cake. Although the principle of equal treatment is a deep-rooted social belief, in practice it is a very elusive ideal. Gasoline was not given to everyone equally. Preferential treatment of groups was the foundation of gasoline rationing. However, this did not cause the public to believe that t h e distribution of gasoline during the war violated the principle of equal treatment. As long as the principle by which t h e favored group was selected was a popular one, the public did not feel that t h e distribution of gasoline was discriminatory. T h e basic principle of selection for preferential treatment was importance to t h e war or the national welfare. T h i s principle was unchallengeable and unchallenged. However, in applying this principle of selection it was necessary to b e c o m e increasingly concrete. Various groups had to b e included under or within this unchallengeable overall principle. T h e principles by which these sub-

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groups were defined or selected became more questionable (and questioned) as the groups came closer to being concrete and identifiable human beings. Thus, the principle of importance to the war became more concrete in the group of persons "essential to the operation of military establishments," and became almost completely concrete when the group—lawyers giving free legal advice at army camps—was included in the group of persons "essential to the operation of military establishments." W h e n commercial shows operating exclusively at army camps were excluded from the groups of persons "essential to the operation of military establishments," some persons undoubtedly felt that the principle of even-handed justice had been violated. In light of the foregoing discussion, it appears that the reality of the value of equal treatment must be sought in the process by which people are classified into groups. Since the reality of even-handed justice depends upon the principles of selection or classification, the feeling that an action is discriminatory (unequal) is really a criticism of the principle of classification involved. Because of the ability of the mind to abstract, all things may be classified into one group. On the other hand, each thing may be classified into a separate "group." In between these two extremes, the process of classification involves the selection of similar characteristics from different situations. T h e characteristic which one person would emphasize for purposes of classification might not be the one another person would emphasize. Therefore, the situation to be classified may be put in different groups by different people. T h e result is that an action which appears discriminatory to one person may appear equitable to another. If someone accused the rationing officials of failure to give equal treatment because of some rationing classification, the rationing officials could argue with equal "logic" that they had afforded equal treatment. T h e problem of classification in planning—the problem of "equity" —is well illustrated by the experiences of the gasoline eligibility committee. T h e gasoline eligibility committee felt it important to prevent the list of eligibles, as it existed at any one time, from expanding. In accordance with this feeling, the committee usually selected from the function of the petitioner, for purposes of classification, the characteristic which would place the petitioner in the largest possible group or class. Denial of the petition would then be based on the consequences of approval—namely, that all the other members of the class would also have to be allowed preferred eligibility. This was often a successful technique of denial. In selecting the characteristic which would place the

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petitioner in the largest possible class, the committee did not have its tongue in its cheek. The classification, to the committee, was not arbitrary or capricious; it was an honest and sincere classification. The characteristic selected was impelled to the consciousness of the committee members by their strong desire to keep down the consumption of gasoline. Following are some examples of classification of petitioners into the largest possible group for purposes of denial. (Some of these examples have been cited before in a different connection.) The committee recommended denial of preferred eligibility for a private, voluntary organization called "Dogs for Defense," which was the sole procurement agency for Army dogs. The committee classified the function of this organization with "other [Army] procurement programs such as obtaining horses and mules and other necessary supplies." 108 Procurement of dogs could have been distinguished from procurement of horses and mules (and other supplies). Private automobiles are efficient vehicles for transporting dogs. The same is not true for horses and mules. However, by including procurement of dogs in a large ineligible class, eligibility could be denied to "Dogs for Defense," the petitioner. The committee recommended denial of preferred eligibility for representatives of the Blue Cross Hospital Care Plan. It classified this plan with the large group of "other mutual insurance plans." 107 There was no logical difficulty in the way of recognizing a separate class of hospitalization insurance plans or an even more extensive class of health insurance plans, especially since importance to the public welfare was one of the ultimate principles of selection. However, the broader classification of mutual insurance plans strengthened the denial. The committee recommended denial of a petition by the American Foundation for the Blind for preferred mileage for social workers specializing in instruction of the adult blind. The committee decided that this work "was in no different category than other classes of occupational therapy." 108 While instruction of the blind could be included in the category of "occupational therapy," it could also be recognized or distinguished as a sub-class within that category. However, by selecting the most general or abstract characteristic of the function for classifying purposes, the function could be included in a much larger class and denial thereby strengthened. The committee denied preferred eligibility to salesmen selling the products of the blind. It felt that the blind were in a class with "many other handicapped persons," which, of course, they were.109 They were

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also, however, in an easily distinguishable sub-class of the large general class of "handicapped persons." T h e committee recommended denial of a petition, supported by O P A field offices, for special rations for the inhabitants of Imperial Valley, California, to allow them to escape the intense heat in the middle of the summer (mean temperature of i o 8 ° F . during July). T h e committee classified driving for this purpose as "a temporary change of residence because of climatic conditions injurious to health," and found that there were many places in the country where climatic conditions might be injurious to someone's health, depending upon the person's age, condition, etc. 1 1 0 Since gasoline could not be provided for this large group of persons adversely affected by climatic conditions (because it would take too much gasoline, not because it was unimportant to the public welfare), special rations were not allowed to residents of the Imperial Valley. Although extreme heat is certainly a "climatic condition," it is also different from all other climatic conditions. A person can dress for almost all climatic conditions except extreme heat. After he has taken off all his clothes, there is little left he can do. In classifying petitioners' claims for purposes of denying preferred eligibility, the committee adopted an extreme functional approach. It often classified activities into their broadest functional arrangement without consideration of the specific purpose of the activity. Thus, the activities of supervisors of food chains were classified as "supervisory functions," and preferred eligibility was denied. 111 T h e committee did not ask the question, "supervising what"? Many people would feel that food store supervisors were in a different class from other supervisors (for example, supervisors of cigar stores) because of the importance of food distribution to life and health. T h e committee, however, felt "it was quite impossible to distinguish between food supervisors and supervisors covering many other chain operations, as for example, drugs, dry goods, motion picture theatres, and many others." T h e committee denied the petition of the National Federation of Settlements for preferred eligibility for transporting underprivileged children to summer camps. T h e committee felt it would be "impossible to limit the functional eligibility so as to exclude the commercial ventures." 1 1 2 T o the committee, the function involved was running camps. It shied away from the moral question, "running camps for what purpose?" Although when denying a petition the committee had considerable freedom in selecting the principle of classification (the classifying characteristic), it did not have this same freedom when approving a petition.

126

THE PLANNING PROCESS

When approving a petition, the committee had to anticipate the classifying process which would go on in the "public mind." Before eligibility could be granted to one group, the committee had to decide how many other groups (or persons) would regard themselves to be similarly situated (i.e., in the same class), for these other groups would insist on "equal treatment." That is to say, a pressure would be created. To these "disaffected" groups, the committee might have tried to explain by means of the logic of classification the "preferential treatment" afforded the favored group. However, this "logical" explanation would not have been acceptable and would not have reduced the pressure with its cries of "discrimination" because the behavior of the disaffected groups is the social process of classification; and a social process is not to be dissipated with logic. If there was any significant feeling that gasoline eligibility was a discriminatory system, it was because groups which were not favored could not see the distinction between themselves and favored groups. Generally the members of the committee, and all other rationing officials, sincerely tried to select groups for favorable treatment in terms of socially acceptable principles (i.e., according to the social process of classification). Whether this search for socially acceptable principles of selection be explained in terms of an ethic of equal treatment or in terms of the desire of the rationing officials to avoid the pressures from disaffected groups, the result is the same—namely, the experiencing of discriminatory action was minimized. The importance to rationing officials of social principles of classification when considering a group for favorable treatment is shown in the committee's treatment of the petition for preferred mileage for motion picture salesmen. The committee felt that motion picture salesmen were part of a much larger group and to allow preferred eligibility to motion picture salesmen would invite the other members of this large group ("morale builders or contributors to the spreading of educational propaganda") to petition for preferred eligibility. To establish eligibility to sales representatives of these companies . . . . would be to open the way to letting in many similar activities having an indirect relation to the war effort because of their character as morale builders or contributors to the spreading of educational propaganda. The Committee, therefore, was of the opinion that the application should be denied.118 In this quotation there is a significant expression. The committee said that to allow preferred mileage to motion picture salesmen would be "to open the way" for other groups to apply. This expression, usually stated as "to open the door," was one of the most frequently used expressions in arguments against a proposed change in the rules, especially a "relaxing"

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or submitting change. W h a t the opponents of a proposal meant when they used that expression was that the proposal, if adopted, would arouse vigorous human reaction of an undesirable kind. T h e opponents of the proposal were opposing it on the basis of their ideas about human psychology. These ideas of human psychology were not strictly scientific. T h e "open the door" argument, because it was used so often, and used so often without a valid psychological basis, became a matter of amusement to a few of the rationing officials who conjectured about the actual existence of the mythical door, alleged to open so easily. If the committee had really wanted to approve some of the petitions that it rejected, it could have done so without "opening the door." If the committee had allowed preferred mileage for social workers who specialized in instruction of the adult blind, probably not all other persons engaged in "occupational therapy" would have insisted on like treatment. Aiding the blind would generally be regarded as a special case; preferential treatment for the blind would not be regarded by other "handicapped persons" as discriminatory and would not therefore "open the door" (i.e., create pressure for "equal treatment"). T h e committee could have allowed preferred mileage for taking underprivileged children to summer camps without "opening the door" to "commercial ventures." W h e n preferred eligibility for this purpose was being considered, the attorneys on the committee said that such camps could not be distinguished from commercial camps. " T h e Committee considered this was unfortunate but recognized that it would be difficult if not impossible to limit the functional eligibility so as to exclude the commercial ventures." 114 T h e social value operating on the committee's moral sense which produced the word "unfortunate" in the above quotation could have been used as a principle for classifying camps for underprivileged children in a separate class for preferential treatment. Most owners of commercial camps would have been ashamed to cry "discrimination" if camps for underprivileged children had been given favored treatment. Although the committee sometimes may have failed to apprehend the social process of classification, in most cases it properly assessed this process; it made a correct guess or prophecy as to public reaction. Although hospitalization insurance can be distinguished from "other mutual insurance plans," if preferred eligibility had been granted to representatives of the Blue Cross Hospital Care Plan, other mutual insurance organizations probably would have insisted upon preferred eligibility for their representatives. Although extreme heat can be distinguished from other "climatic conditions injurious to health," this distinction may not have been acceptable to a large number of persons adversely affected

128

THE PLANNING PROCESS

by climatic conditions other than extreme heat. Although supervisors of food stores can be distinguished from supervisors of other stores, such as cigar stores, it is likely that supervisors other than food store supervisors would not accept this distinction. During the period of the pleasure driving ban in the Northeast, which prohibited driving to summer homes, the committee was asked to distinguish between driving to summer homes which would reduce gasoline consumption (as when the summer home was closer to the occupant's place of work than his regular home), and driving to summer homes which would increase gasoline consumption. T h e logic of this proposal was unassailable. Since the purpose of the pleasure driving ban was to reduce gasoline consumption, to prohibit pleasure driving that resulted in less consumption of gasoline was illogical. Nevertheless, the committee rejected the proposal because it did not believe the distinction would be socially acceptable. " I t would be next to impossible to persuade persons who did not receive permission that they were in any different position from others who did." 115 Many, perhaps most, of those who were denied permission to drive to summer homes would have disregarded the pleasure driving ban, feeling that it was being applied in a discriminator)' fashion. Although the committee refused to distinguish between driving to summer homes and other pleasure driving, it did allow driving for the purpose of closing a summer home. This kind of driving was allowed in order to save property, a socially acceptable purpose. T h e driver was supposed to close his home and return promptly. He was not supposed to enjoy himself. " I f such a trip is made and the house is promptly closed it is conclusive evidence that the motive for making the trip was genuine and that the trip was legitimate." 1 1 8 Many people felt that once a person was legitimately at his summer home, for the purpose of closing it, it was silly not to allow him to stay there and relax over the week-end or for a longer period. However, to have allowed this would have been to recognize driving to summer homes for purposes of pleasure as a type of driving distinguished from other pleasure driving and, since this distinction would not have been socially acceptable, would have "opened the door" to a general disregard of the pleasure driving ban. T h e rule which the committee adopted, allowing driving to close a summer home providing the driver returned immediately, while it appeared a little ridiculous, harmonized as closely as possible in that situation with social principles of classification. T h e rule may have been ridiculous, but it was the most popular rule possible in the situation. The foregoing paragraphs show how the committee, before granting a petition, tried to foresee how many groups or persons would re-

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gard themselves to be in t h e same class as the petitioner and therefore claim equal treatment. Sometimes, however, the committee granted favorable treatment to a group with full knowledge that many persons not included in the committee's classification would insist on equal treatment a n d would not get it. However, in these instances, although the disaffected parties undoubtedly felt the committee was being arbitrary and discriminatory, the committee was still in harmony with the social process of classification, although that process was not completely uniform. Preferred eligibility was allowed to physicians, surgeons, dentists, osteopaths, public health nurses and midwives. Members of other "healing professions" (naturopaths, optometrists, chiropodists, etc.) continually insisted that they be given "equal treatment." T h e committee always denied their petitions. Although denial of preferred eligibility to these groups brought forth cries of "discrimination" from them, most people would agree that the committee properly excluded them from the medical group. 117 T h e process of classification casts considerable doubt on the meaningfulness of the idea of equal treatment. A social principle of classification is actually a social value. Every apparent denial of equal treatment (discrimination ) is actually a new classification according to some principle or value, and the notion of "equality" continually disappears into values, popular or unpopular. T h e administrative problems of the classification process tend to keep the administrators in tune with their society when selecting values for recognition in the rules. Although the idea of equality has been associated with rationing, both in praise and in criticism (rationing officials have been criticized for developing "unworkable" procedures in their efforts to achieve "ideal equality"), equality is an elusive principle to find in the rationing rules. T h e idea of equality had very little meaning in the gasoline rationing program. T h e food programs gave everyone rations of the same size regardless of needs. People who ate in restaurants got the same number of food points as people who ate all their meals at home. Large people got the same rations as small people, men the same as women and children, big eaters the same as small eaters. If equality means equality of sacrifice, rationed food allocations were most inequitable. Industrial users of food were divided into classes. Some classes received allotments of rationed food equal to or greater than their use of those foods prior to rationing. O t h e r classes received as little as half of what they had used in the pre-rationing period. These classes were defined (the members selected) according to ideas of national need. Bakers who m a d e low-sugar-content products could get a greater proportion of their past

1^0

THE PLANNING PROCESS

use of sugar than those who made products with a relatively high sugar content like pies and cakes. The purpose of this principle of classification was to encourage consumption of plentiful flour in relation to scarce sugar. Makers of pharmaceuticals received a greater proportion of their needs of sugar than did makers of jams and jellies and candies. These denials of equal treatment were not felt to be oppressive by anyone (except possibly the disaffected industrial users). They were actually the enactment of social values or the satisfaction of public needs. Many rationing programs divided all persons interested in making money from the use or sale of rationed items into two groups—those in business when rationing began and those who wanted to come in later, and denied allotments or inventories to the later group in all but exceptional cases. This classification, based upon maintaining the competitive status quo ante bellum, was not challenged except by persons who were denied inventories or allotments with which to start businesses. It was a popular classification, a popular denial of equal treatment, the recognition of a popular social value. Preservation of the status quo as a principle of classification was also applied to consumers. The fuel oil rationing program divided all persons who wished to use fuel oil as a fuel for heating their homes into those who were using it on July 31, 1942 (when the first order limiting deliveries of oil to consumers was made effective), and those who wanted to begin using it after that date. Persons in the latter group were not issued fuel oil rations except in a few cases where denial would cause extreme hardship. This denial of equal treatment was considered eminently fair and just by nearly everyone. The effect of the idea of equality is very difficult to find in the rationing rules. However, the principles by which groups were selected for special treatment were usually popular ones. That being so, the rationing rules in most cases were not "discriminatory"; they were fair and just. SUMMARY AND

CONCLUSIONS

The basic function of the gasoline eligibility committee was to deny additional gasoline to any group or function whenever it could get awav with it. It was not called upon to seek out functions or services important to the war effort or the public welfare for the purpose of encouraging those services or functions by granting additional gasoline. Because it is necessary to give socially acceptable reasons for the rules, the committee developed a rationalization for this function. The com mittee was determining essentiality to the war effort or the public welfare. Only "necessary driving" was allowed. This type of decision ap-

THE GASOLINE ELIGIBILITY COMMITTEE

I31

pea red to the public as a decision of fact rather than value. The committee in the role of an expert body determining highly technical economic and social facts was much more acceptable to the public than a body deciding what was good or bad for the people. Most people would feel that this latter function was much more appropriate to Congress than to a small, obscure committee hidden away in the recesses of the OPA. Nevertheless, the committee was concerned at least as much about the amount of gas involved in any petititon as it was about the relation of the petitioner to the war effort or the public welfare. In spite of the fact that the committee was principally engaged in denying petitions for additional gasoline, it could, and occasionally did, recognize a function as important to the nation and allocate gasoline for that function on its own initiative. Thus, it allowed gasoline for repair men because, since little new production was allowed, it was desirable to keep the old appliances repaired. In its function of denying petitions for additional gasoline, the committee was not entirely uncontrolled. However, the controls on the committee's discretion are more properly described as social rather than administrative or legal. It was controlled by the logic of classification, by the strength of pressures, by its ability to find an acceptable reason for denial, by inherited beliefs, and by its ability to find authoritative support for denials. Before the committee allowed gasoline for some function which the members personally favored, it had to make a guess as to whether the public would accept that function as a single class of activities or as a part of a larger class. If the committee guessed wrong on this point and granted the petition, it would receive insistent demands for gasoline from the excluded members who regarded themselves as a part of the same class. This "discrimination" could not be acceptably rationalized, and the committee members would undergo an emotional experience which they would not enjoy. This factor was operating on the committee when it denied gasoline for taking underprivileged children to summer camps, a decision the committee felt was necessary but "unfortunate" that it was necessary. The committee was also controlled to a certain extent by the amount of pressure behind the demand for change. Particularly was this true if the pressure became "political," carrying with it the threat of ultimate congressional action, for then the controls of the OPA hierarchy were brought into play. However, the control exercised by pressure was not a very effective one, for, as long as the committee thought it was right, it believed in "holding the line" until the pressure threatened permanent damage to the program—in other words, until it developed révolu-

THE PLANNINC PROCESS

tionary proportions. Furthermore, the OPA hierarchy did not feel it could ov errule the committee. T h e committee was also controlled by the need for giving socially acceptable reasons for its decisions. T h e great justifying principle during the war was essentiality to the war effort. This principle was unapproachable. Most petitioners related themselves to the war effort. Those who were not related to the war effort usually understood when their petitions were denied—"c'est la guerre." Although one Senator, arguing for more gasoline for salesmen in his state, claimed that every man has a right to earn a living, the committee really did not have to pass on that proposition. W h e n a petitioner argued that he or his group were related to the war, the fact that the committee did not believe the activities in question "bear a sufficiently direct relationship to [war] production" could always be an honest difference of opinion. However, the fact that the committee could apparently satisfy the requirements of social rationalization by simply comparing the petitioner to some other group or person may have weakened the control exercised by the need for giving acceptable reasons for decisions. O n the other hand, it may be that the only "acceptable" reason is the socially acceptable one, regardless of the laws of logic or the personal motives of the person giving the reason. T h e assurance which comes from having expert support for a decision also tended to exercise some control over the committee's discretion. It constantly sought support for denying a petition either from a government expert or from people who actually received the service claimed to be important to the war effort or the public welfare. However, its tendency to disregard these expert opinions when they indicated the petition should be granted minimized the amount of control gained in this way. T h e most important control over the committee's discretion was its inherited notions as to what was socially, economically, and organizationally important. The committee, feeling for what was good, felt the same way a good many of us would have felt. T h e committee came from the society it was controlling and reflected the needs of that society fairly accurately. No one but salesmen and the Congressmen they persuaded to support their claims felt that the war effort would suffer if salesmen were not allowed unlimited gasoline. In fact, many people feel that salesmen are nuisances. W h e n the committee heard from the people whom the petitioning salesmen called upon, it almost always got that reaction. It would be quite difficult to show that ministers were more important to a nation at war than lawyers, bankers, real estate men, etc.

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133

A nation without churches could fight a war, but a nation based on private property could not do so without lawyers and bankers. And yet, the lawyers and bankers never complained, either at being excluded from the preferred eligibility lists or at having ministers included. Furthermore, when the committee regarded the church as a cultural community organization rather than a purveyor of eternal tTuth and, therefore, restricted preferred mileage to local "pastors" who administered to congregations, neither the church nor anyone else complained of ungodliness, although attempts were made to widen religious eligibility. Most people would probably agree with the committee that actual physical production was the most important part of our economic activities; and yet, such production would be useless without the functions of distribution, for which additional gasoline was denied. Most people, if faced with the choice of allowing gasoline for week-end trips by war workers or reducing the efficiency of essential war plants, would have decided as the committee did in favor of such week-end rations; perhaps, even while denying gasoline to take underprivileged children to summer camps, or while denying gasoline for social workers engaged in rehabilitating the blind, or denying gasoline for attending funerals, as the committee did. They would have justified this variable treatment, as did the committee, on the basis of war-time expediency. Underlying the committee's boldness in denying additional gasoline for most of the functions of our society was the assurance, probably subconscious, that gasoline is for most people a convenience rather than a necessity. Whereas it is true statistically that this country could not operate without private passenger automobiles, in most individual cases an automobile is not necessary or is needed very little. W h e n the committee denied gasoline for some service or function, it did not often believe that service or function was going to be halted by its decision. W h e n the committee decided that plants manufacturing coffins and caskets were not industrial plants essential to the war effort, it did not believe that the denial of preferred eligibility which this entailed would force society to bury its dead in sacks. Likewise, when the committee denied special rations for attending funerals, it did not contemplate that funerals would be attended only by the undertaker and the corpse. T h e committee could not have believed that denial of preferred mileage to the National Foundation for Infantile Paralysis would bring the activities of that important institution to a standstill. It could not have believed that denial of preferred mileage for the organization called "Dogs for Defense," the sole procurement agency for Army dogs, would mean that the Army had to fight without dogs. The truth is that in

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T H E

P L A N N I N G

PROCESS

most instances eligibility for preferred mileage was a convenience. A " C " ration was, by and large, a reward for being considered important by the committee, or a bribe to get people into, and to keep them in, preferred activities. Or else it was a commission to the petitioner for selling his cause. Be this as it may, it was necessary to develop the notions of essentiality and necessitous use or the denying function would not have been successful; and there just was not enough gasoline to go around.

Chapter 4.

SOME CHARACTERISTICS OF GROUP DECISION

THE RATIONING OVERHEAD organization was composed of the usual array of clearance points, levels of authority, staff and control units, etc. (See Part I I . ) It was characterized by a number of unpleasant phenomena, also probably usual in hierarchical administration—conflict, jurisdictional disputes, masterminding, tensions, disrespect, dislike and, in a few cases, real hatred. In sharp contrast to these relationships were those which existed in certain cooperative planning groups. T h e basic planning group in rationing was the rationing branch. THE RATIONING

BRANCHES

T h e purpose of the rationing department was almost completely expressed in the rationing branches. E a c h branch was responsible for the successful rationing of some product or group of products (such as processed foods ) . They did their own planning, made their own industry and, to some extent, field contacts, and in general assumed the responsibility, and were held responsible, for the successful rationing of their products. T o the branches the rest of O P A appeared as a series of obstacles to successful rationing. T h e importance of their mission, the fact of their responsibility, and the actual finality (not without "clearance troubles") of their decisions turned the branches into strong, emotionally cohesive, administrative groups. T h e group feeling was stronger in smaller and less specialized or organized branches. In the larger and more highly organized branches, the hierarchical type of relationship within the branch was more noticeable. In all rationing branches, however, there were strong group feelings, and organizational lines tended to break down. In general, people were asked to do, and did so gladly, whatever they could do best to promote the common purpose. T h e divisions grew up with the branches or came after them. In the planning of many of the original programs, the chief planner later be-

THE PLANNING PROCESS

came the division director. H e maintained his continuing interest in the branch program and his membership in the branch group. W h e n planning began on the second program, he also headed that planning activity until the program was inaugurated and a new branch created out of the planning group to run the new program. The division director maintained his membership in this new branch group as well as in the previous one and so was a member of both groups. His relationships with these two branches would not be hierarchical but rather the relationship of a group member. Either because new division directors were appointed or because the number of programs (branches) in a division became too large, division directors in the last half of the rationing period were not members of branch groups. T o the branches, division directors finally became simply a part of the hierarchy. W h a t was true of division directors was also true of other divisional personnel, such as assistant directors or members of divisional procedures sections, etc. Of course, when threatened as a division, divisional personnel tended to group emotionally against that threat. The same was true of the rationing department and, finally, the agency. OPA employees tended to become an emotional group against critics of OPA. Rationing attorneys assigned to the branches were seldom well integrated into the branch group. There was one attorney who was almost completely integrated and many who were almost completely nonintegrated, with varying degrees between. T h e attorneys always had a strong loyalty to their own group, the legal division, and hence could not become completely integrated into the branch group. T h e only attorney who became almost completely integrated into the branch group was a man almost completely lacking in what we have called the legal mind. He could not be an integrated member of the legal group because of this fact, and hence his loyalty could be, and was, transferred to the branch. T h e branch group was the basic rationing group. Groupings below the branch group, while they formed, were not fortified or stimulated by the significance of rationing as a purpose. T h e strength of the branch group was in the completeness of its purpose. Although the existence of common past experience was a unifying force, some branches had an almost complete turnover of personnel without any diminution in the strength of the group feeling. T h e members of the branches had a tremendous loyalty to one another and to their programs. They resisted dictation from any source. They fought all attempts to minimize the authority or autonomy of the branch. Particularly did they resist the

SOME CHARACTERISTICS OF GROUP DECISION

\y¡

efforts of the rationing staff units to dictate to t h e m or to lessen their jurisdiction. B r a n c h personnel were deeply resentful of the masterminding of their work by these staff units. T h e y were also, to a certain extent, contemptuous of rationing staff units or departmental personnel because of their own strong sense of purpose. B a c k of this feeling was the fact of their responsibility for the successful rationing of their commodity. T h e branches got blamed for errors. W i t h i n the branch group there was a maximum of harmony. Between the branches and other O P A units there was a m a x i m u m of conflict. T h e working relations within the branches tended to b e c o m e social relations; office friendships tended to become personal friendships. T h e characteristics of operations within the branches were lack of conflict, lack of pride of authorship, lack of jurisdictional jealousy or organizational formalism on the negative side, and, on the positive side, harmony, speed, efficiency. In other words, the characteristics of operation within t h e branches were opposite to those of the overhead organization (including " l i n e " and "staff," e t c . ) . Branch personnel were cooperating in realizing a purpose felt by them to be important and complete. THE WORKING CONFERENCE COMMITTEE IN F U E L R A T I O N I N G Nowhere were the group feelings of loyalty, cooperation and unity stronger than in t h e fuel rationing division. T h i s division was small, having only two programs (fuel oil and stoves), and the whole division was more like a branch. T h i s division sometimes refused to carry out "orders" of the hierarchy, and a departmental reorganization imposed from above resulted in several members resigning or transferring to other parts of O P A . F r o m the standpoint of t h e hierarchy, the fuel division was the most troublesome division and one of the most effective and successful at rationing. T h e other small rationing division (miscellaneous products) also had a strong group feeling, a high degree of cooperation within t h e division, and very successful programs. T h e two large rationing divisions (food and automotive supply) were much easier for the hierarchy to run largely because the hierarchy extended farther down and closer to t h e branches in the person of the division director. W h e n a planning emergency developed in the fuel rationing division, qualified personnel from any part of the division would be assigned to the planning. T h e i r regular work would be gladly taken over by the branch personnel who remained at branch work. An illustration of the cooperation and unity with which personnel from the fuel division

1^8

THE PLANNING PROCESS

would tackle one of these planning emergencies is the planning of a coal rationing program early in 1944. T h e coal supply situation got so bad in the winter of 1943-44, that Solid Fuels Administration for W a r ( S F A W ) asked O P A to be prepared for coal rationing. T h e fuel division had no coal branch nor could it have recruited personnel qualified to do this job (nor would it have been allowed budget or positions). It had to use its own personnel. T h e persons most expert at various aspects of rationing planning who could be spared from their jobs were called together from every branch of the division (fuel oil, stoves, and operations branches). T h e y all became part of a coal planning conference under the division director. Fuel rationing attorneys who could be spared were also part of the group. At the first meeting of this conference, the group was divided into specialized committees depending upon the special competence and interests of the members. Each committee had a chairman; some persons served on more than one committee. Distinctions of rank were not recognized, and the attorneys were regarded as simply part of the emergency planning group, the assistant general counsel being chairman of the flow-back committee. Chairmen called planning meetings of their committees as often as they felt it was necessary. T h e chairmen also gave specific assignments to individual members. A t the committee meetings, the work of the individual members was discussed, and the committee took a "position" on various points or agreed to raise questions for the conference to settle. T h e continual planning of individual members and committees was under the coordinating direction of one man. He kept each committee informed of the progress of the others, maintained the program time schedule, and "needled" the committees which were lagging behind. His job was to make the planning go forward as an integrated whole. H e did not tell committees how to settle their problems; h e did not create "policy." Every few days, the division director would call the conference together so that the committees would report their progress. A t these conference meetings, each chairman would present the committee's "positions" and unsolved problems. Both would be discussed by the conference, issue at a time, and anyone who had anything to contribute could speak. If the discussion got too animated, the division director would maintain order, but this seldom happened. During the discussion, any committee member who had a minority point of view on any matter reported by the committee could have his "position" discussed. W h e n the division director believed that discussion on any point had

SOME CHARACTERISTICS OF GROUP DECISION

13g

been completed and was beginning to go in circles, he called a halt to the discussion. He then restated what he believed to be the various "positions" or solutions which the discussion had brought up, and a vote was taken. Each vote counted for one regardless of the rank of the voter. Decisions were made by majority vote. A decision could be brought up for reconsideration at a later conference meeting if new information had been discovered, but the frivolous reopening of questions was severely frowned upon. In this way, the decisions and solutions of the committees were continually ratified, and "final decisions" were made currently, making the planning much more progressive (later decisions depend upon earlier decisions which, if delayed, slow up and confuse the planning process). There were several interesting things about the coal rationing planning experience, as all who participated in it agree. There were absolutely no jurisdictional disputes. There was no conflict between the attorneys and the others. The attorneys were completely integrated into that ad hoc group. They were part of the process with equal authority and equal responsibility. There was no pride of authorship. When the pet "position" of a person was overruled by the vote in the conference meeting, he took it good-naturedly. A majority had voted against him. If he ruefully insisted he was still right in spite of the vote, he was "kidded" by the other members, and he liked it. What organizational lines existed were effective entirely because of agreement as to their reasonableness and utility. There was absolutely no command idea present in the organization. There was a high degree of cooperation between the members of the conference. Anyone was ready and even eager to stop his work in order to help another member solve one of his assigned problems, even staying late at night to do this. All had an extreme confidence in the decisions of the conference. Influence on the conference vote went to ability rather than rank. All persons who participated in the coal planning process found it very enjoyable, and many of them have said that it was the most satisfactory government experience they had ever had. The coal rationing planning period lasted for over a month. Then SFAW decided rationing would be unnecessary, and the work on coal rationing was terminated. LESSONS OF T H E GASOLINE ELIGIBILITY COMMITTEE Another very interesting experience in group administration and decision which further illustrates the difference between group and hier-

l^O

THE PLANNING PROCESS

archical administration was the experience of the gasoline eligibility committee. The activities of this committee have been fully described. Here only certain characteristics of planning by the committee will be mentioned to illustrate further the nature of group administration. The committee had a very real, definite, and important responsibility —to decide who was going to get gasoline and who was going without it. The committee also had full power to enable it to discharge its responsibility. Its decisions, as a practical matter, were final. The committee was composed half of attorneys and half of representatives from the automotive rationing branches. It made its decisions by vote. Each member was willing to abide by the group decision even though he disagreed. The attorneys on the committee were there as members, not as representatives of the legal division. They had as much authority and influence in the group's decisions as anyone else and no more. In other words, the committee was an organ of administration without jurisdictional lines and distinctions. Individual attitudes and feelings were submerged in the group. There was no conflict between attorneys and non-attorneys in the committee. The attorneys brought to the committee their special resources of authority and function and gladly utilized them for the furtherance of the group's common purpose. In the hierarchical process, where juris dictional feelings abound, the insistence on certain legal myths was a necessary technique for protecting the functions and authorities of the attorneys from encroachment by the rationing branches. To the attorneys on the committee, however, it was not necessary to protect functions or authorities because they were equal partners in the complete exercise of the responsibilities of an administrative group. Thus, for example, they needed no myths regarding the inevitable and ultimate meaning of the written word. The committee showed no preference for OPA voluntary programs (such as ration book issuance) over the voluntary programs of other agencies. It showed no preference for the professions or occupations of its members. In the deliberations of the group, a suggestion of preference or favoritism in any proposal would have been quickly detected by some member and exposed in the group discussion. Censure or disapproval would ccrtainly have been expressed in that discussion. To avoid this, each member carefully purged his own proposals from any suggestion of favoritism. His conscience was strengthened and enlarged by the nature of group deliberation. The committee, therefore, developed a group conscience free from much of the weaknesses and subconscious prejudices of an individual conscience. A businessman on the committee,

SOME CHARACTERISTICS O F GROUP DECISION

I41

for example, would have been ashamed to suggest a decision favorable to business in general or to his business in particular, and although in his individual thinking he might rationalize his prejudice and hide it from himself, he could not hide it or rationalize it in the hard give and take of the group discussions. Thus, the group acquired a moral purity which gave it a vastly superior claim to the citizens' obedience than the eligibility decisions of an individual administrator would have had. Although individual members of the committee came and went (the committee had about three complete turnovers in membership), the committee's decisions had continuity to an extreme degree. Each decision was informed by all of its past decisions and their results. T h e majority of the members on the committee always were thoroughly versed in the committee's lore and history. A new member, with the eager intelligence of the uninformed, might suggest new and radical departures from the tenor of the committee's past decisions. However, he would soon be educated and shown the error of his suggestion by the committee's past speaking through the mouths of the committee's oldtimers. T h e new member would gradually lose his eager radicalism, cease to be an individual or point of tension, and become integrated into the group. In the hierarchical process, a new superior frequently makes decisions without regard for the organization's past experience, which cause much confusion and uncertainty and re-enact many old mistakes. T o a certain extent, a change of superiors in the hierarchical process prevents the organization from learning by experience, from growing up, from becoming increasingly wise. (It may also prevent, of course, a gradual deviation from the original social need which created the organization.) A new member on the gasoline eligibility committee had practically no effect of retarding the growth of the group intelligence. O n the other hand, new members were constant reminders to the group that there were ways of thinking other than those of the committee. Nevertheless, the committee was conservative. In summary, the basic characteristics of group decision in rationing were as follows: cooperation rather than conflict; submergence of individual thinking with a corresponding absence of tensions; a rapidly increasing level of expertise; a very high ethical level; influence by ability rather than by rank; and a high degree of individual job satisfaction.

Chapter 5.

INDUSTRY CONSULTATION

AN ADJUNCT to the process of group planning was consultation with industry advisory committees. As of June 12, 1945, the rationing department claimed industry advisory committees in the following fields: American camping butter cheese canners dining car edible oil refining educational buyers evaporated and condensed milk floating craft operators fat salvage frosted food fuel oil fuel oil control and audit fuel oil distributors gasoline control and audit—east gasoline control and audit—central gasoline control and audit—western gasoline dealers hospitals infant foods margarine manufacturers major oil (gasoline) mayonnaise and salad dressing meat canning national fluid milk conservation and control national meat national retail retail druggists restaurant and hotel preserve planning sausage committees ( 2 ) school lunch stove tire rationing currency control wholesale food distributors

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Although this listing (at the request of the deputy administrator's office) is impressive, actually, formal industry consultation in rationing was not at all extensive. Of the committees listed above, twenty-six were food rationing committees. Of those committees, ten were W F A committees, five were OPA price committees, one was an O D T committee, and one was a Department of Agriculture committee. Of the remaining nine food rationing committees, at least six were actually subcommittees of the institutional user advisory committee (a really active committee), two were the processed foods point-setting committees discussed previously, and one was the national meat industry advisory committee which met only once during rationing. Food rationing personnel were often asked to appear for limited periods before meetings of W F A or OPA price committees to explain recent food rationing changes of interest to the assembled industry men, but in only a very limited sense could that practice be called "industry consultation." The miscellaneous products rationing division, including shoe and rubber footwear rationing, had no industry advisory committees. At the beginning of rubber footwear rationing, a committee was used, composed of representatives of the rubber footwear manufacturers. By mutual agreement this committee soon disbanded, with the understanding that OPA would make its rubber footwear rationing contacts with the footwear division of the Rubber Manufacturers' Association. Shoe rationing personnel contacted the heads of some of the shoe industry associations and individual industry men and occasionally appeared before the two W P B shoe industry advisory committees (one representing the manufacturers, one the shoe retailers ). Although there may have been some tire industry advisory committees at the very beginning of tire rationing, there were none during most of the life of the program. The tire rationing currency control advisory committee, included in the list above, was not organized until the spring of 1945 and was useful during the period of about a month or two when the complete tire flow-back system was being planned and installed. There was no automobile industry advisory committee. Although the gasoline rationing branch claimed a major oil company industry advisory committee, a gasoline dealers industry advisory committee, and three control and audit advisor}' committees (an eastern, a central, and a western committee), the first and second committees named met only three times each, the eastern control and audit committee met twice, and the other two control and audit committees each met once. Effective consultation with industry committees in rationing was confined to the institutional users industry advisory committee, the processed

THE PLANNING PROCESS

foods point-setting committees, and the industry advisory committees of the fuel rationing division. The point-setting committees have been discussed before. The institutional users industry advisory committee was a fairly large committee composed for the most part of operators of hotels, restaurants, hospitals, prisons, factory feeding establishments, and other activities involving the provision of meals. The committee met literally dozens of times. The committee did not occupy its time with details. Instead, if such were needed, it selected a "task force" to stay in Washington for as long a period as was necessary to work out the details. The committee also did not spend its time on problems peculiar to certain specialized establishments. Instead, it voted that a sub-committee from the specialized establishments be sent to Washington to work on the special problems of that type of establishment. As a division, the fuel rationing division made the most self-conscious use of industry advisory committees. Beginning in August of 1942, when the fuel oil rationing program was being planned, the fuel rationing division called together an industry committee composed about half of oil company representatives (mostly large companies) and half of plumbers, heating engineers, and heating equipment manufacturers (health was also represented). This committee met five times during 1942, four times during 1943, three times during 1944, and oncc or twice during 1945. Some of the meetings lasted for three days, the average being a little less than two days. As time went on, the committee became more clearly a fuel oil industry committee. At the insistent demands of dealer associations for representation, the fuel division established in September of 1943 a fuel oil distributors association panel which met separately, twice in 1943 and four times in 1944. The panel was composed of four representatives from the Oil Heat Institute of America and two from the Atlantic Coast Oil Associations Conference, both organizations being in the nature of associations of fuel oil dealer associations. In addition to these two committees, the fuel division, in order to get expert knowledge of industry accounting and record-keeping practices, organized a fuel oil control and audit advisory panel composed of eight auditing and accounting experts from a few large oil companies in the East. This panel, or some of its members, were called to Washington many times to help the fuel oil rationing specialists work out the details of a workable flow-back and control system. In the fall of 1942, the fuel rationing division also organized a stove industry advisory committee of thirty-one members. Most of the members were representatives of stove manufacturing companies. Also rep-

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resented were furniture, hardware, and stove dealer associations; coal, oil and gas companies; and Sears Roebuck and Montgomery W a r d . T h e fuel rationing division also planned a coal rationing program and installed a dealer limitation order relating to anthracite coal deliveries in the Northeast. 1 For the purpose of coal rationing planning, five industry advisory committees were formed: an anthracite industry advisory committee of nine members; a bituminous industry advisory committee of sixteen members; a coal equipment advisory committee of five members; a coal trade association advisory committee of six members; and a coal industry advisory council of five members. Some of these committees met only once or twice. Their purpose was largely to supply information needed for the planning of a complete coal rationing program and to be prepared to help install such a program if it became necessary. T h e coal rationing program was never installed, and the administration of the anthracite dealer limitation order (Ration Order 1 9 ) was transferred to S F A W on November 18, 1943. Although many rationing branches made little use of industry advisory committees, all of them consulted representatives of industry when special industry information was needed. T h e automobile and processed foods rationing branches had designated industry consultants throughout the country to whom they felt free to direct requests for special information. T h e automobile rationing branch on November 26, 1943, designated thirty-one industry men in different parts of the country as "consultants." Of these consultants, twelve were new car dealers, eight were used car dealers, nine were automobile association executives, and two were representatives of the National Automobile Dealers Association ( N A D A ) . Most makes of cars were represented. Each of these consultants was consulted twice, once in December, 1943, and once in April, 1944. T h e processed foods rationing branch had a similar list of "consultants," in addition to its two industry point-setting committees, consisting of nine retailers and twenty-seven wholesalers. O n one occasion, an "auditing committee" of five members selected from this group spent four days in Washington (April 3-6, 1944) making a complete analysis of the industry provisions of the processed foods rationing regulations and leaving a list of twenty recommendations. In addition to the industry committees in Washington, most rationing programs, following an agency policy, urged the formation of O P A district office trade cooperating committees, largely for the purpose of securing local industry compliance through education and group pressure. Little is known about these committees, but, by the end of rationing, there were in the neighborhood of 1,300 of them.

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THE PLANNING PROCESS

Consciousness of, and interest in, industry consultation was not uniform throughout the branches and divisions of the rationing department, as the above discussion illustrates. T h e most developed consciousness of the importance and use of industry consultation was in the fuel rationing division. This fact can be further demonstrated by the working mailing lists for fuel oil rationing in use in that division. These lists were: ι. 2. 3. 4. 5. 6. 7.

8. 9. 10. 11. 12.

Advertising Managers of Oil Companies. P A W Offices. East Coast Fuel Oil Dealers (both associations and individuals). "List of Smart Fuel Oil Dealers." The New York Harbor Committee (N.Y. dealer associations). "Presidents of Large Oil Companies." Principle publications on (a) air conditioning, (b) architecture, (c) building, (d) mining (coal), (e) oil and petroleum, (f) dry goods, (g) electrical equipment, (h) furniture, (i) hardware, (j) heating and plumbing. Fuel Oil Industry Executive Personnel Register [(a) distributors, (b) associations, (c) trade papers, (d) producers]. List of All Fuel Oil Associations in the Country. Fuel Oil Industry Advisory Council. Fuel Oil Distributors Association Panel. Midwestern Representatives of the Fuel Oil Industry Advisory Council.

In general, the non-industry planners showed the greatest interest in industry consultation. All of the fuel division's consultative arrangements were inspired and largely engineered by non-industry men. Although the industrial users industry advisory committee became verv important, and the personnel of the industrial users branch were almost entirely from industry, the inspiration for the organization of that committee was entirely from the industry, not O P A . Although the organization of the processed foods point-setting committees was inspired by processed foods rationing personnel, most of whom were from the processed foods industry, those committees were not organized until February of 1944—one year after the processed foods rationing program began. Rationing planners from the industry thought of industry consultation chiefly as a device for obtaining specialized and technical information, and, since they already had that technical industry information, industry consultation did not appear to be necessary. If there were points or variations about which they did not know, the rationing plann e n from the industry were inclined to obtain the information from their industry acquaintances, if, indeed, they ever became aware of their need for the information at all. T h e lists of "consultants" of automobile

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and processed food rationing were simply formalizations of this approach. T h e consultants were helpful only when unusual information was required (twice in automobile rationing). 2 Planning of the rubber footwear rationing program was under the direction of non-industry men. For that program an industry advisory committee was organized (and later disbanded by mutual agreement). Shoe rationing, on the other hand, a program run by industry men, never organized an industry advisory committee. Whereas the rationing planners from the industry regarded industry consultation largely as a device for securing technical information, the rationing hierarchy became interested in it almost entirely for its dramatic value—for its utility in "selling" OPA. Thus, from the second deputy administrator on, each deputy administrator asked for reports on the number of industry advisory committees in existence and the number of meetings held. No information was requested as to the value of the committees or program changes attributable to them, and nothing was ever done within the rationing department with the information received. T h e information was solely for the use of the higher O P A strategists in "selling" the idea that rationing planning was conducted with a plethora of industry consultation. T h e rationing branches replied in kind and obligingly reported what appeared to be (and was) an incredible amount of industry consultation. 3 In order properly to describe, understand, evaluate, or plan industry consultation in a specific instance, such as rationing, it is necessary first to analyze or rationalize the functions of industry consultation in general. If one were to ask any of the rationing personnel who dealt with an active industry advisory committee what was the function or value of industry advisory committees, he would receive an answer which indicated that such committees had a two-fold function or were valuable in two ways. He would be told, first, that by the use of these committees, " Y o u get the right answers. Y o u can't find a guy who knows it all." Secondly, he would be told that through these committees industry "learns the problems that the government official has to face. You get mutual understanding." It is difficult to improve on these rough evaluations by the people who actually worked with active industry committees. T h e values of industry advisory committees are, indeed, to supply technical or unusual information which is necessary to regulate intelligently and to bring about a drawing together—a consensus—of the governors and the governed. In their broadest terms, these are the values or functions of industry consultation—information and consensus. It is certain that a group of people charged with regulating another

1^8

T H E PLANNING

PROCESS

group or other groups of people cannot discharge this function efficiently without knowing a great deal about the habits and practices of the group or groups to be regulated. It is even more certain that the regulating group cannot achieve its implicit purpose of regulating with minimum disturbance without such information. In most cases today, the best place to turn for such information, the only place for most groups, is the group itself. Group consultation for the purpose of securing technical information may thus become a prerequisite of efficient or skillful administration. The information which is needed, and can be obtained by consultation, is of two types. First, there is needed facts about an industry (or other activity); and, second, there is needed facts in industry—how the industry men react to certain propositions, what their probable course of conduct will be, what they are susceptible to, etc. The first type of fact can be obtained by the consultant method. The second type of fact is most effectively obtained by the use of industry committees or groups where the governors and the people governed meet face to face, and the governors can observe the reactions. The second function or value of industry consultation is the achievement of consensus—a drawing together of the governors and the people governed. Consensus is an emotional condition. Unity is an emotional state and may be achieved by reason only among a group of people emotionally oriented to the methodology of reason. People emotionally oriented to other methodologies such as intuition or revelation achieve unity only through the conjoint use of those methodologies. The failure of the rationalists to achieve universal unity is not because of unawareness of this fact, but because of a false, (contrary to fact) assumption that all or most people are emotionally oriented to the methodology of reason. Perhaps the most widespread method of decision is the method of sentiment—the concrete organization of emotions around specific objects or forms, including forms of behavior. The sentimental or emotional value of industry consultation is immeasurably enhanced if the consultation is face to face. Thus, consensus is best promoted when consultation is through industry advisory committees rather than "consultants." (There are also other advantages of group consultation, as will soon become clear.) The first thing one notices about the industry advisory committee is that the government and industry members soon become friends. They begin calling one another by their first names. In the files of the fuel rationing division there was an early listing of the fuel oil industry advisory committee members, and in the margin were pencilled the fa-

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miliar names ( " E d , " " D i c k , " etc.) of those members who could successfully be so addressed. (Some could not, and titles were noted—thus, " M r . " and " D r . " ) T h e two groups of an active committee, government on the one hand and industry on the other, soon ceased to be outsiders to each other. They became familiar with one another as persons. (In rationing, some long-lasting ties and post-war placements were made in this way. Contrariwise, some rationing personnel were hired from the committees.) Everyone is familiar with the fact that people will accept more irritations and inconveniences from friends than they will from outsiders. Another way in which consultation, particularly committee consultation, contributes to consensus depends upon the fact that hostility (hence disunity) is often based on lack of understanding of the thinking behind requirements. Quotations from the final report of the processed foods auditing committee will illustrate this point. This committee, composed of five industry men selected from the list of processed foods industry consultants, met in Washington from April 3 to April 6, 1944, analyzed the rationing program, and talked with individual members of the rationing branch. Excerpts from its final report show how understanding of the background of requirements can dissolve hostility and create consensus. In many instances, explanations of recent policy changes caused the committee to withdraw its objections to some policies. In the discussion of practically all problems, it was concluded that if perhaps there had been more complete information given to the trade, much of the correspondence and many petitions might have been eliminated, and many misunderstandings now existing with the trade would not have occurred. . . . The committee finds all the information that would lead to better understanding available at the Washington Office, but it has not been adequately distributed. If this were done, it was the committee's opinion the Washington Office would be surprised at the increased cooperation and compliance of the retail and wholesale trade. The committee wishes to express its pleasure and appreciation for the splendid cooperation extended bv the Branch Chief—and his entire staff. All persons questioned were frank and sincere in their answers. It was especially pleasing to the committee to note that the tremendous task of rationing Processed Foods has been so well administered by only sixty-eight persons, including many men and women with extensive experience in some part of the food business. T h e important thing to note about the committee's reactions was that it was itself "sold" on processed foods rationing by its experience in

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Washington. Its recommendation about sending more information to the trade was, of course, important. However, information received by hostile persons may be interpreted as mere propaganda or further display of authority and thus serve to increase, rather than decrease, hostility. The committee obliquely recognized this fact when it recommended personal contact. "More use should be made of State Advisory Committees. More personal contact by Regional and District food men should be made at association meetings." Rationing personnel who worked with active committees all found that industry hostility on the committees gradually disappeared. At the beginning of fuel oil rationing, the midwestern dealers, through their associations, were extremely critical and hostile. They were on the border of the rationed area and did not see the need for applying the controls and inconveniences of rationing to them. The midwestern contingent on the fuel oil industry advisory committee was very troublesome at the meetings in March of 1943 when changes for the second heating year were being discussed. By virtue of the committee meetings and what they saw and heard there, their hostility had practically disappeared by the end of the year and had disappeared completely by the end of rationing. On the committees, industry men learned why the government officials thought they could not change a rule or adopt an industry proposal. As one industry man said, although "there have been some bitter fights on the floor, and blood has been spilled on the floor and spattered on the ceiling . . . our suggestions, when sound, prevailed." (See below, page 312.) In the March, 1943, meetings of the fuel oil industry advisory committee, an industry devised rationing plan for the next heating year was defeated partly because the difficulty of getting it cleared with the " 1 8 clearance points," according to the government officials, would delay the issuance of rations, and all the industry men wanted an early issuance so that consumer's tanks could be filled during the slack period of the summer. The " 1 8 clearance points" was not the type of explanation for action that could be generally distributed to the public. At an advisor}' committee meeting, however, it could be and was an effective argument. The industry advisory committee makes possible disagreement with understanding. It is possible to "sell" without "selling out." Through industry consultation, particularly face to face group consultation, a little agreement or consensus can go much further. If some of the industry men have been won over to a plan or proposal, they form a powerful persuasive force for winning over the rest. Dissident members of a committee are more easily convinced by their industry col-

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leagues than by government officials. In the March meetings of the fuel oil industry advisory Committee, referred to before, unanimous approval of the government's plan for the 1943-44 heating season, with some modifications, was finally obtained largely through the operation of this mutual persuasion. As one industry man after another rose to express his confidence in the government's proposal, the opposition of the dissident members disappeared apace. W h e n consensus has been achieved, the industry members will feel a joint responsibility for the product and will defend it when it is criticized within the industry. They become an extension of the government's public relations machinery. They become strategically located friends. W i t h regard to the first hectic days of fuel oil rationing, Dean and Vass say: Throughout this tumultuous period members of our industry council from major oil companies gave us continuous public and private support. For a period of six weeks during November and December one of these executives . . . . called on us each day to keep us informed about activities in the various markets throughout the rationed area, encouraged us and asked for ways in which he and his company could be of assistance.4 Throughout the period of the conflict with P A W over its method of allocating oil within the industry, O P A was continuously supported by one of the members of the fuel oil industry advisory council who was a vice-president of one of the largest oil companies and a member of the pertinent P A W industry committee. This type of extra-governmental support can also be achieved by the consultant method, though less efficiently. Very close and friendly relations developed between rationing branches and certain consultants. Thus, the news that the exclusion of size 0 - 4 children's shoes was resulting in a change in sizing standards (e.g., size 5 being marked size 4) came to the shoe rationing officials from a frequently consulted "friend in industry" who stood to lose by the rationing of infants' shoes. 5 Members of industry committees suggest changes in or additions to the rules. From the standpoint of the government officials these suggestions amount to information about the industry which is necessary in order to govern efficiently, or information about the reactions of industry men, which is also necessary in order to govern efficiently. T o the industry men, however, these proposals are attempts to get rules they can "live with" or which are advantageous to them in some other way. There were a few rationing officials who were inclined to evaluate industry committees as information-getting devices very lowly and to regard them chiefly as a means for "selling" the programs already "frozen."

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It may be that the mere existence of an industry committee has some dramatic value—some value in "selling" the program. However, the organization of industry committees solely for this purpose tends to be self-defeating. It has an element of insincerity, of manipulation. This insincerity will inevitably " g o across" to the committee, just as it goes across the footlights of a theatre, and create resentment. In the early days, the rationing officials who worked with industry committees had not completely rationalized their purpose or nature. T h e committees were often called together after the important decisions had been made. T h e rationing officials tended to regard the committees at first solely as devices for "selling" the programs. Committee members were only "rubber stamps." T h e committee members wanted to feel useful, and they wanted to feel that their suggestions were given a sincere consideration. As time went on, both sides, government and industry, acquired greater confidence in each other. This process was mutual and interdependent. T h e industry committee meeting called in March of 1943 to present the fuel oil rationing program for the second year was called after the fuel oil rationing field men had been called to Washington to present their suggestions and after the fuel rationing officials had about completed their thinking on the next year's program. These 1943 meetings were carefully controlled by the division director. Questions were not put to a vote until it was certain the vote would go the right way, and questions which the government would have lost and were unwilling to lose were not put to a vote at all. B y the time it was necessary to plan the next year's program, mutual confidence had developed to the point that the committee was called to Washington in February ( 1 9 4 4 ) before the rationing field men had been consulted and before the fuel rationing officials had begun to plan the new program. This early meeting was called to obtain a complete canvass and discussion of industry proposals before the government thinking began. A month later another meeting was called to iron out differences which had appeared after a month of planning in Washington. A t this meeting, the fuel rationing officials accepted all of the persistent industry proposals except one. T h e following year, the committee was again called together in February ( 1 9 4 5 ) before the planning of the next year's programs had begun. By this time all efforts to control or manipulate the meeting had disappeared. Confidence between the two groups, government and industry, was complete. In fact, so complete was the confidence that most of the companies, especially the large ones, did not even bother to send representatives, and the large companies that did send representatives sent

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sales managers and assistant sales managers rather than presidents and vice-presidents as they had done before. Instead of the usual twentyfive or thirty members, only thirteen attended. This low attendance and the fact that representatives from lower levels of the companies were sent to the meeting indicated a very strong confidence in the Washington officials. Whatever may be the official motive for the establishment of industry (or other group) committees, both groups, government and industry, are affected by the face to face consultation of the committee meetings. Both sides learn things they never knew before, and both arc influenced by the contact. This fact being so, skepticism as to the purpose or value of this type of consultation is not well based. In the light of this analysis of the functions and values of industry consultation, it is possible to make some tentative generalizations about committee composition. To obtain technical or specialized industry information, representative committees are not relevant. What is needed is consultation with a representative of each significant type of industry operation. This consultation can be by correspondence, and the person consulted need not be representative in the democratic meaning of the term. It is far more important that he be intelligent, analytical, and expressive. Only one person is needed and geography is important only to the extent that it is significant in industry practices. Failure to rationalize the function of consultation led to the rather careful attempt to get representative "consultants" in automobile and processed foods rationing. Far from being necessary as a source of technical information, representative committees, especially those drawn from the higher industry levels, may not even be able to provide the needed technical information. Thus, fuel and gasoline rationing officials found that their industry advisory committees could not provide the needed technical information about industry record-keeping and accounting practices. T o obtain this very specialized information, which was needed in order to plan the system of industry control (restrictions on transfers, ration credit, records, reports, etc.), the fuel rationing officials organized a control and audit advisory panel composed of eight auditing and accounting specialists from a few of the large eastern companies. This group met in Washington several times. Frequently a few members of the group would come to Washington and spend several days as a virtual part of the control and audit planning staff. Specialized information was frequently obtained simply by calling one or more of these men on the phone. On one occasion, two of the members of the control and audit

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panel selected two even more specialized persons in their employ (both stock accountants) to spend as much time in Washington as was necessary to develop, by themselves, a handbook for use of O P A field personnel in auditing fuel oil dealers. It was a fairly common practice among the rationing branches to borrow specialized industry personnel for weeks at a time as an adjunct to the Washington planning staffs. T h e designated "consultants" of automobile and processed foods rationing were established, permanent sources of specialized industry information. For the purpose of obtaining consensus, the idea of representation is undoubtedly important. Precisely what ingredients go into the idea of representation, however, is not at all clear. Rationing officials who worked with active committees became more conscious of the problem of representation as time went on and tried to improve the representative character of their committees. Generally speaking, they used three principles of representation—type of business, size, and geography. T h e y also tried to get operators rather than association executives. T o a considerable extent, these ideas of representation were empirical. Rationing officials received demands or requests for membership on their committees from many industry men and groups, some individuals even pressing their demands through Congressmen. Insistent demands for representation from fuel oil dealers associations, beginning in the spring of 1943, resulted in the formation of the fuel oil distributors association panel in September of 1943 and the appointment of the president of a midwestern dealer association to membership in the regular committee in April of 1943. T h e general fear of "big business" in this country was a sufficient and obvious reason for selecting from both large and small companies. Underrepresentation of the far W e s t seemed natural and was accepted because of the great distance of the far W e s t from Washington and its more sparsely settled nature. F o r the obverse reasons, overrepresentation of the Northeast was not resented. It would appear that the chief problem of representation from the standpoint of efficiently promoting consensus is to obtain representatives of real communicating groups. Only by obtaining such representation can the sympathetic industry representative be effective in quieting industry criticism. Since the industry men in any marketing area will have most of their business contacts with one another, it is probable that the marketing area is the only realistic geographical basis for some kinds of industry committees. Likewise, the representatives of the very large companies may have little contact with the small companies, producers

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little contact with dealers, etc. T h u s , these various types of companies within a marketing area may be the real communicating groups. T h e problem of reaching the dealers was particularly difficult. There were very many dealers, and their only grouping was in dealer associations. Thus, association executives had to be relied upon to reach the dealers. Rationing officials distrusted the association executives. For purposes of obtaining information they preferred operators, feeling that association executives knew very little about their industries. For purposes of "selling" their programs, they felt that association executives often had interests which were opposed to this function. As two high rationing executives said in a final statement on their rationing experiences : Trade associations could be very useful in disseminating formal instructions since they looked upon us as an opportunity to serve members and justify their existence. They could not be counted on to help us much in our task of persuasion since this ran counter to their notions of protecting their members against the encroachments of the government. Although some branches reached their dealers better than others, none did very well. A poll taken near the end of 1944 showed that more than 50 per cent of the gasoline dealers did not believe gasoline rationing was necessary. Although the rationing officials did not develop a uniform or rationalized technique for selecting committee members, there was little, if any criticism on this score. T h e processed foods point-setting committees were selected by the corresponding processed foods section chiefs (supply and distribution) from nominees of the various national food associations. Thus, the five national food distribution associations each nominated five persons, and from these twenty-five, the chief of the processed foods distribution section selected the five men on the distributors (point-setting) committee. T h e original institutional users industry advisory committee was selected by prominent restaurant and hotel operators under the stimulation of the secretary of the National Restaurant Association. This group then insisted on meeting with the Washington officials and from time to time enlarged its own membership. N o t until early in 1944 did the rationing officials prepare an official list of committee members and consciously strive to give recognition to the principles of representation mentioned above. T h e fuel division's committee members were selected by the Washington officials as they felt the need, or as demands for membership appeared, usually after discussing the candidate with other industry men in whom they had

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great confidence. In the original selections, the problem of representation had not been rationalized, as the following remarks of the fuel oil industry relations section chief in a memorandum on July 30, 1943, to the division director indicate. As I stated in my previous memorandum to you on this subject, this group [the fuel oil industry committee], like Topsy, has just "grown," and I am afraid some of our thinking about the group has been rationalization rather than a logical policy background, with the result that we've gotten ourselves into some rather illogical positions that are difficult to defend. T o get the most out of industry committees it would appear that committee unity is desirable. Otherwise, the government may make some enemies no matter what it decides or concedes. T h e institutional users industry advisory committee followed the practice of assembling in Washington a day or two before the scheduled meeting so that the industry representatives could iron out differences between themselves. Then, at the scheduled meeting, the discussions were not confused by conflicting points of view which could not be resolved. For much the same reason, the government group should not go into an industry meeting with basic differences and conflicts. M u c h of the consensusmaking value of the distributors (point-setting) committee in processed foods rationing was lost because of a basic difference of opinion in the processed foods rationing branch. T h e chief of the distribution section was not in sympathy with the rest of the branch, or, one might add, the rationing of food. His practice was to meet with the distributors committee the day before the scheduled meeting and instruct the group as to the position it should take. If he could not meet with the group in advance, he attempted to form an advance "party line" by telephone. Thus, the distributors committee, almost from its inception, constantly urged the abandonment of processed foods rationing, and, in general, carried on the personal battle of the chief of the distribution section. Thus, conflict within the rationing branch helped to prevent a meeting of the minds between the government officials and an industry advisory committee. In order to avoid such frustration, the fuel rationing officials, in the early days, always developed a "party line" before an advisory committee meeting was called. In order to avoid presenting the committee with a completely inflexible position, this "party line" included points on which the rationing officials were willing to give in or compromise. T h a t is, it included first and second choices. As the two groups, government and industry, became fused through mutual confidence, the need for the government "party line" disappeared, and real group discussion and

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decision took place at the committee meetings. The basic premises of the program were no longer challengeable or challenged. It is possible that the greatest value can be obtained from advisory committees when meetings are held under skillful leadership. Thus the fuel oil industry advisory committee, which became a very successful committee, met in its early and formative meetings under the skillful leadership of the fuel rationing division director. This man was very conscious of the importance of discussion leadership. He consciously postponed a vote on many questions until discussion had brought most members around to the government's point of view. He refused to put some questions to a vote at all because it was obvious that a vote would go against the government's position. He recognized the importance of keeping the meetings interesting, and he was fairly convincing at explaining why the official position was necessary. Skillful leadership, however, can easily merge into manipulation. Some of the practices of the early fuel rationing leadership at least bordered on manipulation. T h e practice of calling upon all who favored a proposal before calling upon the others may have been such a practice. Whatever may be the virtues of skillful leadership, it is no substitute for sincerity. Sincerity on both sides makes mutual understanding possible. T h e later meetings of the fuel oil industry advisory committee were not led with any particular finesse, but the value of the committee increased all of the time. Meetings of the institutional users industry advisory committee were lead by various persons, including section chiefs, and rationing officials have reported that there never was a leadership problem with regard to that committee. Rather there was a sincere desire on the part of all persons present to find the best answers to institutional user rationing problems. The processed foods point-setting committees met under their own chairmanship, and the government representatives did not even vote. T h e fact that all of their recommendations with regard to point prices for specific items could never be followed did not discourage those committees from assembling in Washington every month for a year and a half nor was there any real resentment against the Washington office as far as its point pricing was concerned. If there is a technique for manipulating advisory committees without creating resentment, it cannot be communicated without destroying its own efficacy. T o the extent that industry consultation can be studied, discussed, and improved, it is industry consultation based on mutual sinceritv, and everything that can be said about it is of equal use and value to members of all the groups consulted. T h e breaking down of the psychic distance between the governors and the persons governed is one of the

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ingredients of good administration. To the extent that industry (or other group) consultation has this effect, to the extent that it promotes consensus, and to the extent that it supplies information needed for intelligent decisions, it is a necessary part of skillful administration.

Chapter 6.

PRESSURE

GROUP CONSULTATION not only provides the planners with needed information, it also provides affected groups (clientele) with an opportunity to state their side of the case; it gives them representation. Another method, less open and controlled, whereby interested groups secure representation or consideration of their interests in the planning process is the method signified by the term "pressure." "Pressure" is a word much used in the study of government. W e hear of political pressure, economic pressure, congressional pressure, public pressure, pressure groups, etc. It was a word much used by OPA officials. One constantly heard such expressions as "the pressure is building up," "giving in to the pressure," "holding the line against pressure," and many others. T h e word is used in so many contexts that it is a little difficult to define. W h e n people use the word "pressure," they probably mean a demand for change in plans or programs which is difficult to deny for reasons other than the intrinsic merit of the proposal. T h e more difficult it is to deny a demand for change, the "heavier" is the pressure. T h e word is probably used chiefly where the demand is unusually difficult to deny. However, denial of most demands involves a certain amount of difficulty, even if only because of the human dislike for saying "no," and so most demands for change are pressures. Pressure is change-inducing power. That is how the term will be used here. There are several important reasons why demands for change may be difficult to deny—that is, why they exert pressure. One is purely psychological. Most people desire social approval, or popularity, and therefore do not like to say "no." Another reason why demands for change may exert pressure is the difficulty of administering an unpopular program or rule. In rationing, widespread criticism of a rationing rule involved local boards in local unpopularity and induced many of them to disregard the rule—"to succumb to the local pressures." Another reason why demands for change may exert pressure is that denial may involve a potential threat to the whole program. Demands of politically

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important groups may eventually obtain congressional backing. Refusal to accede to such demands may result in catastrophic congressional action. T h e ultimate power of Congress increases the change-inducing power of some demands. Finally, demands for change may exert strong pressure bccause they come from an authoritative source. Thus, a congressional act is extremely effective as a pressure, as is also a demand by the superior in the administrative hierarchy (partly because the inferior is afraid for his job, but mostly because of the feeling that superiors should be obeyed); and a demand from another government agency has more authority and may exert more pressure than one from a group outside of the government (the outside group, however, may have better relations with Congress and therefore be able to exert more pressure). In this discussion of pressure, no distinction is made between demands for change and criticism. A demand for change implies a criticism, and a criticism implies a demand for change. P R E S S U R E AND T H E

HIERARCHY

T h e hierarchy is particularly related to that aspect of administration called "pressure." "Responsible" officials are more "responsive." T h e OPA hierarchy was the channel by which the "politically" significant pressures (where the threat of congressional action was most strong) made themselves felt on the lower, planning officials. T h e lower, planning officials, feeling less pressure ("heat" was a word often used), were more inclined to maintain the "integrity" (logical cohesiveness under integrating concepts) of their individual programs and rules. T h e OPA hierarchy, responsible for a wider and wider area of the agency's programs, also concerned itself with the popularity of any specific program because of the effects of an unpopular program upon the acceptance of other programs. Thus, the hierarchy sometimes interfered in a program suffering from administrative difficulties because of local unpopularity even though this unpopularity had not yet become "politically" significant. T h e hierarchy's function of interference in the logical working out of a program under the integrating principles which had developed with it was resented by many of the lower, planning officials, who called this interference "politicking." AVOIDANCE O F PRESSURE Part of the importance of pressure as a change-inducing power is that officials do not like it. Pressure (criticism) involves them in the unhappiness of unpopularity. More important, however, is that the de-

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mands for change may conflict with the ideas and concepts which have developed around a program and which represent the officials' notions of the public interest, of "right" conduct, of the program's purposes. Consequently, much official activity is for the purpose of avoiding pressures. T h e tire eligibility list, for example, was made as broad as possible so that the Washington office would not receive pressure from omitted groups. If all the eligible persons could not get tires, because the board's quota was not large enough to go around, the tire supply was to blame rather than the Washington rationing officials. T h e local board hardship quota in gasoline rationing was designed to remove local pressures from boards and hence from Washington. Boards could take care of deserving cases not covered by the regulations from their hardship quotas and thus reduce local pressures. T h e very common technique of delegating to the field offices authority to take some action, after obtaining Washington approval, was partly a device for shifting pressure to field offices without giving them any real authority. Part of the problem of classification is to select principles of classification which will not induce many other persons or groups to demand similar treatment ("opening the door"). T h e problem of rationalizing official action is to find for official action reasons which will not create widespread criticism and demands for change. Rationing officials sometimes made changes by interpretation or administrative exception, or issued amendments without press releases, to keep some action from creating pressures (demands for similar treatment). W h e n the national stockpile of new automobiles had dwindled almost to the point where rationing was to be taken over by the Washington office, the automobile rationing branch proposed to narrow severely its list of eligibles during the transition period. T h e eligibility committee convinced the automobile branch at the eligibility meeting of January i x , 1944, that it was best not to do this because of the pressures this would create from the groups removed from eligibility. "This decision rested principally upon the fact that, in order to make a relatively short term rationing adjustment, eligibility changes would produce considerable dissatisfaction on the part of large and important groups." Instead, the final decision on an application was giv en to the district office, and standards of need and serviceability were tightened. Thus the pressure would come only from a disgruntled individual whose application was denied rather than from a powerful group which had been removed from the eligibility list.

1Ó2

THE PLANNING PROCESS PRESSURE TECHNIQUES

There were many techniques of pressure—techniques for making a demand more difficult to deny, for enhancing the change-inducing power of a demand for change in the rules. "A Friend in

Washington"

One of the most usual techniques was to have the demand presented through government officials (see the chapter on the gasoline eligibility committee). The petitions of many groups for preferred eligibility were supported or endorsed by government officials. Other rationing programs had similar experiences.1 The advantages of having "a friend in Washington" are appreciated by everyone. Unquestionably, there is a certain group feeling among government officials that gives a significance to requests2 from government officials that requests from persons outside of government would not have. Pressure through Other Government

Agencies

If a demand for change was presented through another government agency as an official request of that agency, it had change-inducing power to an extreme degree. To deny such a request could mean that the issue might be carried to a higher administrative level for settlement and would create bad feelings between the agencies. To gain the official endorsement of an agency is more difficult than to gain the endorsement of some official within an agency, and rationing officials often insisted that demands supported by some government official receive the official endorsement of his agency before they acceded to them or even considered them. A request by War Department officials that preferred mileage be allowed to representatives of a national shopping service for investigating post exchanges was not renewed when OPA asked the Secretary of War to make the request officially. Official requests of other government agencies, while difficult for rationing officials to deny (they did not like to chance the disapproval of a higher governmental authority), were, nevertheless, denied on some occasions. The petition for preferred eligibility for railroad claim agents, although supported officially by the Interstate Commerce Commission (at the insistence of the rationing officials), was rejected, nevertheless. Although the War Food Administration had "legal power" to issue rationing directives to OPA, the rationing officials, who felt that W F A was oversympathetic to the food industry as against the consumer, took up many issues between OPA and W F A with the Director of Eco-

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nomic Stabilization (for example, W F A ' s refusal to order re-rationing of food late in 1944)· Although the Fanners Union got the Secretary of Agriculture to request the OPA administrator to gTant preferred eligibility for gasoline to Farmers Union representatives, the rationing officials refused to do so and were reluctantly supported by the OPA administrator. The fact that an agency had "legal power" to issue "orders" to OPA did not seem to increase appreciably the change-inducing power of its requests. Whether or not an agency had such "legal power," refusal to grant a request had the same potential result—settlement of the issue by a higher governmental authority. Nevertheless, if pressure could be directed on OPA through the official channels of another government agency, it had an extremely good chance of being effective.3 "Going

through High

Levels"

Another technique of pressure was to present the demand through officials higher in the OPA hierarchy. This involved, of course, convincing these higher officials by some means that the change should be made. "Going through high levels," while a universally recognized technique of influence, can be overestimated as a technique for obtaining change. At least this was true in rationing. In the first place, there was a very strong unanimity of opinion in OPA. In the second place, the higher officials normally accepted the judgments of the lower officials and backed them up. Finally, the higher officials did not feel they could "order" the lower officials to make changes which the lower officials thought were wrong. The relations between higher and lower officials in rationing were not like those between foreman and crew but were more the relations between joint participants in a moral enterprise. The higher officials tried to convince the lower officials that the change should be made. This often took a long time. The arguments of the higher officials, of course, had more influence than those of outsiders on the lower officials. The higher officials exerted pressure on the lower officials. The gasoline eligibility committee finally agreed to change the rules to recognize the principle of veterans preference, but this took months of insistence and argument by the higher officials. The committee was not "ordered" to make these changes. The same thing was true of the changes made to allow furlough rations for merchant seamen and preferred mileage to union representatives who helped to maintain peaceful industrial relations at war plants. The moral nature of the relations between the higher and lower rationing personnel was not fully appreciated by the

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second deputy administrator for rationing, brought in from the Army with notions of Army discipline, and he attempted to "order" rationing personnel to make certain changes to reduce criticism of O P A . This attitude cost the rationing department some of its ablest personnel, who resigned or transferred to other departments. (There were a few occasions when the higher officials hopelessly confused the relationships between the higher and lower officials and attempted to "order" an unconvinced member of the department to sign or "clear"—approve of—some action.) T o the lower officials, the higher officials appeared chiefly as an added pressure (rather than as a menace to their economic security). However, the fact that the higher and lower officials were usually in agreement and regarded themselves as joint partners in a moral enterprise minimized the effectiveness of the pressure technique of "going through high levels." Exciting Politically Important Croups Another technique used to increase the change-inducing power of a demand for change was to get some politically important group, such as farmers, interested in the demand. A good example of this technique was the pressure by processors of apple sauce during 1944 to have points prices reduced for their product. T h e head of the supply section of the processed foods rationing branch described this pressure campaign to his branch chief by memorandum, dated October 3, 1944: The pressure, which has taken the form of Congressional inquiries, wires and a visitation by a committee, is coming at this time from apple growers. . . . From what we are told by these apple growers, certain apple sauce processors have indicated to them that the reason canners are not interested in putting up a maximum pack is that apple sauce is not moving at the current point value nor did it move at the previous value. T h e writer then showed that the statement was not true. Packers and distributors stocks went from 462,000 cases on July 1 , 1944, to 322,000 cases on August 1, 1944. (There were 852,000 cases on August 1 , 1942.) O n September 27, the branch received a delegation of six apple growers from Virginia, Pennsylvania, Connecticut, New York, and Missouri. On Monday, October 2, the branch received wires from growers all over the country asking for point reduction or removal of points from apple sauce "because of the packers' reluctance to process on an 'all-out' basis." Because the apple crop that year had an unusually large proportion of culls and windfalls, the growers were very concerned about the prospect that processors might cut their production. Following the meeting with the growers, the branch sent out a letter to processors

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pointing out that the way to get points reduced was to produce a maxim u m pack. T h a t particular pressure campaign was not effective. Pressure through Congress Pressure is also applied through Congress. If the demand for change comes as a congressional demand or action, it cannot, of course, be disregarded; or rather, the extent to which it can be disregarded is a legal question. T h e only demand for change in rationing practices that secured the backing of congressional action was with regard to the use of the suspension order. T h e S-Order was a use of the rationing power as a sanction. A person who violated a rule could have rationed commodities allocated away from him. T h e S-Order was used as a sanction for both price and rationing regulations. M a n y people, especially businessmen against whom S-Orders had been issued, thought it was illegal and a challenge to American institutions. T h e y complained to, and secured hearings before, the House Select Committee to Investigate Executive Agencies, called the Smith Committee. T h e Smith Committee urged that S-Orders be banned unless an agency was specifically authorized by statute to use them. 1 It also struck out against their use as a sanction for price control (it criticized cross-sanctions generally). 5 All that came of criticism of O P A ' s use of S-Orders, however, was that Congress provided in the Stabilization Extension Act of 1944 that S-Orders could not be used to enforce price control regulations and also provided for judicial review of an S-Order. In spite of the act, O P A enforcement attorneys wanted to continue using S-Orders for price violations which occurred before July 1 , 1944. T h e language of the act was vague, but its intent to stop all use of S-Orders as cross-sanctions was clear. Mr. Bowles decided that O P A would go along with the congressional demand and stop using S-Orders as cross-sanctions altogether, whether or not it " h a d " to. T h e July 1 0 weekly newsletter of the litigation division (sent to field enforcement attorneys) pointed out "that as a matter of policy O P A should not issue any further Suspension Orders for violations of Price Ceilings . . . even though the violation occurred before July 1 . " However, the "legal position remains that the amendments [to the price control act] were not retroactive and that from a strictly legal point of view we would have the right to bring suspension proceedings with respect to violations occurring before July 1 . " Pressures operated more frequently through congressional committees. Appearance before an investigating committee is often a disagreeable and undignified experience. M a n y groups pressed their demands through congressional investigating committees. T h e independent tire dealers

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got the Senate Small Business Committee to sponsor a proposal that only independent tire dealers should be allowed to sell tires, tubes, and recapping during the war. O P A officials were callcd before the committee and asked if they could not restrict tire inventories to the independent dealers. They replied "it wasn't our function to reform the economic system." 6 Bills to accomplish this result were introduced several times but always defeated. ( T h e automobile dealers fared more successfully. Under the Murray-Patman Act, they could sell their automobiles to R F C at any time for their original cost, plus a handsome margin, plus storage charges, plus interest.) T h e Kansas City, Missouri, Chamber of Commerce appeared before the T r u m a n Committee to demand that sugar allotments for industrial users in Kansas City be increased to reflect an increase in population. ( T h e Truman Committee allowed anyone adversely affected by fuel oil and gasoline rationing to appear before it in criticism of those programs.) On April 9 and 12, 1943, right after meat, fats, and oils rationing went into effect representatives of the baking industry appeared before the Senate Small Business Committee to try to stop any restriction on the use of shortening by bakers. O P A and W F A officials were given a very hectic week-end, including a Saturday meeting with the bakers at the insistence of the committee, but it availed the bakers nothing. ( T h e tenor of this hearing is almost perfectly described by this statement from a letter read at the hearing: " C a n anyone contemplate life without pie?" ) Gasoline was first rationed in the Northeast. T h e rationing officials knew in March, 1942, that gasoline would have to be rationed nationwide in order to save tires and began planning a national program at that time. A group of northeastern Congressmen formed themselves into a pressure group or administrative lobby to get the inconveniences of gasoline rationing equalized throughout the country. In the language of the gasoline eligibility committee, this was "the so-called Hartley Committee." T h e Hartley Committee summoned the rationing officials before it on more than one occasion and put enough pressure on the administrator so that vacation driving was allowed in the summer of 1943. (At that time, pleasure driving was banned in the Northeast.) A bill was introduced which provided that rationing programs had to be applied nation-wide. Nothing came of it, of course. T h e gasoline rationing officials were preparing to install nation-wide gasoline rationing in July, 1942. Whereupon, a group of southwestern Congressmen created such pressure against this, that the need for nation-wide gasoline rationing had to be nationally dramatized by the President and

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the elder statesmen, Bernard Baruch (using O P A facts and figures), before the rationing officials dared to install the nation-wide program. This opposition cost the national tire-conservation program about five months. At that time, a bill was introduced which forbade O P A from extending gasoline rationing to any other state without first holding public hearings. Nothing came of this bill. Pressure from individual Congressmen pressing the demands of their constituents was constant. Sometimes Congressmen brought to light situations in the field that needed correcting, and they were corrected. Congressional complaints about improper treatment of an individual applicant were carefully investigated by the rationing officials. A full report on such a case was obtained from the field, and then a full reply made to the Congressmen. Congressmen constantly transmitted complaining or critical letters from their constituents. Usually the Congressman had no great interest in his constituent's demand and was quite happy if given a few official O P A words which he could send back showing that he was working to protect the interests of his constituents. One Senator turned in a few dozen pleasure ban violators and insisted that he have a report on the disposition of each case. A demand presented through an individual Congressman could be very effective if the Congressman was strategically situated with regard to O P A appropriations. Thus, the rationing department was ordered to provide gasoline for one man because of the strong pressure in his behalf applied to the administrator by an Appropriations Committee member (see page 86). Only one other case like this one is known to the author. Normally, demands by individual Congressmen were treated the same as those by anyone else except that they probably were denied with more care and tact. (All congressional mail came to one O P A unit and was reviewed by that unit before released.) Political Pressure Perhaps the surest technique of pressure is to secure the support of the party for a demand for change. Party discipline is probably more effective on high administrative officials than legal discipline (congressional enactment). Pressure through the party is "political pressure" in the narrow sense. Rationing was almost completely free from political pressure. However, the Farmers Union finally adopted that technique to get preferred mileage for its paid representatives, after having tried almost every other technique and failed. T h e case of the Farmers Union illustrates many pressure techniques and also the withstanding of pressure by the rationing officials. It illustrates how difficult it was for special in-

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terest pressure to be effective because of the type of personnel relations which existed in O P A .

The Farmers Union Case In November of 1942, the Farmers Union charged that the gasoline rationing regulations discriminated against it in favor of labor unions. (Union representatives, and also representatives of government and management, could get gasoline for driving in the course of maintaining peaceful industrial relations.) T h e gasoline eligibility committee decided on November 2 4 , 1 9 4 2 , that it needed " m u c h more detailed information" before considering the charge of discrimination. O n February 22, 1943, the Farmers Union petitioned for preferred eligibility status for its state representatives. These representatives held meetings to encourage cooperation between the farmers in marketing and the use of machinery and labor. They also explained government programs. T h e O P A labor office thought that the petition should be granted. T h e committee denied the petition on March 16, 1943. It was "not persuaded that the activities of the state representatives do "increase farm production.' " T h e Farmers Union was notified of this decision by letter from the branch chief, dated March 2 1 , 1943. H e said, " t h e Committee was unable to find that a sufficiently direct relation exists between the activities of Farmers Union representatives and current agricultural production to justify the provision for preferred mileage." T h e President of the Farmers Union (Patton) then wrote to the Secretary of Agriculture ( W i c k a r d ) , who replied to him with an encouraging letter on March 25. T h e Secretar)' for a page and a half praised the work of " t h e farm organizations" and closed: " N o t h i n g should be permitted to stand in the way of full and effective use of their services, as far as their sen-ices relate to the production of food and other essential war crops." O n the same day, the Secretary addressed a letter to the O P A Administrator ( B r o w n ) suggesting that "it would be advisable" to help out the Farmers Union, if possible. The farm organization people, particularly the Farmers Union representatives, have discussed with me at numerous times the need they have for gasoline supplies required in the carrying on of their educational activities. Since I believe that the farm organizations are contributing in an important way to our food effort, I do feel that it would be advisable to treat them as sympathetically as supplies will permit. T h e letter from the Secretary of Agriculture was passed on to the gasoline rationing branch where a reply was prepared for the adminis-

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trator's signature. H e returned this reply to the branch, requesting that preferred eligibility be established for the Farmers Union. T h e division director then prepared a memorandum from the deputy administrator for rationing to the administrator discussing the background of the case and the reasons for denial. Preferred mileage, this memorandum pointed out, was allowed to union representatives only for recruitment work and the prevention of labor disputes. H e further pointed out that the Farmers Union had been given hearings and had presented a long brief to the committee. . . . It appears that the functions of the Union's state representatives are, for the most part, only very indirectly related to the actual production of farm produce. . . . The activities of the paid staff are in large measure those connected with the maintenance of the organization and with the general educational work considered necessary to maintain the union as an effective organization. [If preferred eligibility be granted to the Farmers Union], it will be necessary to grant preferred mileage for organizers of labor unions generally and for other activities of a similar nature. A few days later, the administrator received a letter from the Wisconsin state president of the Farmers Union. H e explained that the Wisconsin office was in a particularly bad shape. " O u r membership wants to know the pros and cons of inflation, and they want this information— in language they can understand—from their own representatives—from people they have faith in and whose opinions they respect." H e was very bitter about board "discrimination," and pointed out that tenders of cigarette-vending machines and juke boxes got " T " rations ( O D T jurisdiction). H e threatened a congressional investigation and a public exposure of the discrimination, the lack of farmer representation on boards, and the vending machine and juke box situation. T h e administrator got worried and had the senior deputy administrator ( H a m m ) call the Chicago regional administrator ( M c K e o u g h ) on April 19, warning him that the Farmers Union had threatened to "publicly blow the lid off O P A in Wisconsin"; that they "were sick and tired of discrimination." This phone call was immediately reported back to the gasoline rationing officials by the Chicago regional rationing attorney. H e also reported that the Wisconsin O P A chief, in Chicago on April 2 1 , said there was no discrimination being practiced in Wisconsin—that the American Farm Bureau Federation had appealed from a board denial of gasoline, and the board was upheld by his office. T h e regional attorney also reported that representatives of the Union came to see the regional administrator on Wednesday, April 23, and stated that Brown said they would be taken care of.

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O n April 23, the administrator received the following very strong wire from the president of the Farmers Union. The thorough-going run-around and buck passing which I hase experienced at the hands of every one from top to bottom in connection with the OPA's action or lack of action regarding gasoline for travel of my people in the war food production effort is certainly not warranted from my point of view. My organization has tried to support loyally those things which we thought were worth while in this Administration and we intend to continue to give support in worth-while things but it seems the best way to get necessary action is to be a hell-raiser and an enemy. I am sick and tired of trying to explain to my people why I am on the Economic Stabilization Board, Labor Management Policy Committee and a number of other voluntary duties in connection with the prosecution of the war and yet they cannot get an adequate amount of gasoline to continue work which the Secretary of Agriculture says is essential to the war effort and which forms the background of my appointment and service on voluntary committees. W e can't get necessary gasoline and materials for our State organizations to continue operation but John L. Lewis who has been a proponent of inflation and against the Administration along with the American Farm Bureau Federation who have fought many of the causes which the Administration has tried to promote in the public interest can get the necessary gasoline and supplies. I intend to take this matter to the President, to Justice Byrnes, and to the Senate and House of Representatives with all the force I can command unless something besides conversation and unkept promises are forthcoming. If anything is going to be done or if it is intended that anything shall be done why not do it now. Wisconsin is in a terrible situation. While John L. Lewis organizes our people sit in their offices. I know you can see that we do get gasoline if you will. As a result of these pressures, the administrator sent a memorandum to the division director on April 23 saying, " I have the very definite feeling that we should do something for the Farmers Union, and I would like you to work something out with M r . Handschin, the Washington representative of the Farmers Union." T h e next day, Saturday, April 24, the executive assistant to the administrator called the division director. T h e conversation was recorded. First, he wanted for the Detroit News advance information on a coming amendment. T h e division director told him he would not give out advance information unless ordered to do so by the administrator. T h e n they discussed the Farmers Union. T h e executive assistant wanted to take care of the Union. H e thought Patton would take the issue to the W h i t e House. He said, " [ I am] thoroughly and completely in agreement with them and I think we should give it to them." H e thought Brown should tell McKeough (the Chicago regional administrator) to go ahead and give them the gasoline, but, he said, Brown preferred to work "through channels." H e said he thought people working in support of

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price control should be rewarded. " T h o s e bastards are getting what they want, and while I know it is emotional I want to help my friends and not my enemies." (He could have been referring to labor unions or to the American Farm Bureau Federation, or both, because both were alleged by the Farmers Union to be getting all the gasoline they needed.) He wanted the Farmers Union to be taken care of extra-legally. " C o u l d n ' t vou write your field men and have them see that they are taken care of?" H e was told that only Brown could do that, whereupon he said he would go to work on Brown but for the division director to "think up some way to handle these fellows." On Monday, April 26, the executive assistant sent the correspondence between the administrator and the Farmers Union to the division director with a covering memorandum urging favorable treatment. " I do hope we can make some disposition of this matter favorable to the Farmers Union." An April 30, the division director again prepared a memorandum from the deputy administrator for rationing to the O P A administrator, maintaining the position of the rationing department. " I recognize that this opinion is not a favorable one from your point of view but feel that we cannot avoid it, unless you wish to ask Mr. Jeffers for additional rubber quota and M r . Ickes for additional gasoline quota." On M a y 6, the division director informed his chief gasoline rationing officials, by memorandum, that " M r . O'Leary [the deputy administrator] has heard no further from M r . Brown on the Farmers Union Association. Consequently, we will sit tight for the time being." He called the Chicago regional gasoline rationing representative on M a y 10, asking him to get a bulletin out to the boards insisting on uniform treatment in this kind of case. T h e Chicago regional administrator immediately sent out such a bulletin over his own name. On M a y 1 7 , the Farmers Union presented another brief in answer to the memoranda from the deputy administrator to the administrator (which had been sent on to the Farmers Union by the administrator's office). This brief, among other things, argued at some length that the Farmers Union was not a labor union. T h e deputy administrator replied to this brief in a memorandum to the administrator dated M a y 24. He repeated his previous contentions and hinted that "informed persons in the Department of Agriculture" might not agree with the essentiality of the Farmers Union; "that such services are in no sense so important as to justify an issuance of unlimited preferred mileage." T h e Farmers Union then dropped the case, and no more was heard of it that year. In February of 1944, however, the Farmers Union gave the rationing officials one more chance. T h e Washington representative

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talked it over with the same division director, both in person and by telephone, during the third week in February. T h e division director, reporting these conversations to a new deputy administrator, said: "Although we had a very agreeable conversation, I feel sure that he will come either to you or C h e t [Bowles] for further discussion." Some time during the next two weeks, O P A received orders to make the Farmers Union eligible for preferred mileage and did so by Amendment 1x6 to Ration Order 5C, effective April 1 1 , 1944·* Since 1944 was an election year, there can be little doubt but that the orders originated in the Democratic party. Gasoline rationing officials always felt that the amendment which established preferred eligibility for the Farmers Union was a discriminatory exercise of the rationing power. A former chief of the gasoline eligibility section, writing for the gasoline rationing history, said: The regulation was written as tightly as possible but all non-profit organizations—including cooperatives which could meet the tests—became eligible. Subsequently, business organizations and associations which did not qualify but which were competitors of the groups made eligible complained loudly with no avail. No satisfactory explanation was ever offered. At the eligibility committee meeting on April 19, 1945, the National Committee for Farm Production Supplies "asked that organizations having local cooperatives as their members be made eligible under this provision." T h e proposal was unanimously rejected, whereupon the assistant deputy administrator for rationing, a visitor at the meeting, pointed out that this discriminated in favor of organizations having individual farmer members. " I t was readily agreed that this was discriminatory, but, as Mr. Shelburne pointed out, the entire section is discriminatory and has been discriminatory since its inception." In the Farmers Union case, an interest group which would not accept the formal denial of a petition sought to make its demand more difficult to deny by securing the support of another agency; by "going through high levels" in O P A ; by threats of various kinds; and finally, by political action. Only the latter was successful. Even though the O P A administrator wanted to grant the demand, he could not "order" the rationing officials, unified in agreement, to violate their own sense of right. A D M I N I S T R A T I V E USE OF

PRESSURE

Pressure was often used by the rationing officials as part of the technique of planning. T h e planning officials did not know everything and depended considerably upon pressures or complaints to show them where a change

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in the rules was needed. In the field of eligibility, the planners depended to a certain extent upon strong pressure to show them where the omission of groups or functions was causing dissatisfaction. Often this dissatisfaction had a real basis and resulted in amendment of the eligibility rules. A former chief of the eligibility section, writing for the gasoline rationing history, said: [There was much dissatisfaction] where the ration was smaller than the need. This dissatisfaction frequently manifested itself in the form of pressures on OPA. Pressure groups pressed their cases through associations, other government agencies, Congressmen. On some occasions the request of such a group called for recognition of and action upon a real national need. The activities of a group in this case served to speed up action in OPA to solve a real problem. T h e conscious use of pressure as a planning technique by the gasoline eligibility committtee has already been described. T h e gasoline rationing branch overhauled its eligibility rules in the spring of 1945. 8 Particular emphasis and study had been given to buyers. It was suspected that boards were granting preferred mileage ( " C " rations ) to many buyers as persons "necessary to the operation and functioning of essential establishments." T h e amendment which overhauled the eligibility rules provided that buyers for essential establishments were eligible for a new category of "semi-preferred" mileage which was limited to 825 miles per month. N o buyer could receive preferred mileage (on which there was no ceiling). T h e rationing officials expected that if this arbitrary limitation of gasoline for buyers really interfered with important buyers, they would soon hear about it. They were right. As soon as the amendment was issued, very loud protests were received by Washington, particularly from livestock buyers, livestock associations and Congressmen representing them. Consequently, the regulations were amended to allow preferred mileage to buyers for essential establishments, and later to any buyer of farm products whether for essential establishments or not, and still later to persons whose driving was necessary to the orderly marketing (including sales) of fresh fruits and vegetables (perishables). All these changes were brought about by reducing all buying and selling activities to a maximum of 825 miles per month and waiting for the pressures to indicate where more mileage must be allowed. Pressures can also be created by officials as part of their technique for regulation. T h e use of pressures in this way is part of the administrative technique (as opposed to the legal) of regulation. T h e method by which the rationing officials got plant transportation committees organized in most war plants employing more than 100 persons (or any other plant

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designated by an O P A district director) was to require applications for supplemental gasoline rations or tires from workers at such plants to be certified by an approved plant transportation committee. T h e workers, therefore, put pressure on the plants to organize such committees. These committees, by promoting car-sharing, saved a tremendous amount of gasoline during the war. In discussing the official use of pressure, the fact that O P A attempted to create public pressure on Congress to secure favorable legislation should be mentioned. It also tried to create community pressure on individuals to keep them from violating price or rationing controls. PRESSURE AND DEMOCRATIC

ADMINISTRATION

Because of the fact that there is no other workable technique for keeping administrative officials currently responsible and responsive to public needs and demands, pressure appears to be a necessary part of democratic administration. Furthermore, the tendency for officials to develop a conception of the public interest and vindicatively to maintain any rule or procedure in harmony with that conception, knowing they are "right" even though everyone else thinks they are "wrong," makes congressional pressure a sometimes necessary method for bringing the administration more into harmony with society. Catastrophic action by Congress is sometimes necessary to rejuvenate the officials' conception of the public interest. The veterans case, discussed in the next chapter, is an example of pressure in such a role. However, since pressure is not formalized and operates in an unseen fashion, it can result in special interests being given undue weight in the administrative councils of the nation. One cannot accept the proposition that any well-organized demand for change in the rules should be honored. T h e administrative official has a responsibility to the nation to represent its interests in those many secret meetings of the pressure process where the public is not present. T h e administrative official, therefore, needs some guides to behavior in the face of pressure. H e needs to know when to submit to pressure and when to refuse to submit. Some rules which are no doubt inadequate are presented below. In general, before the administrative official decides either to submit to pressure or resist it, he should make sure that his own house is in order. Criticism of administrative action is often based upon dislike of official methods and official attitudes. Often the real issue is not the substance of the rules but the way in which the officials conduct themselves when promulgating, explaining, or defending the rules. T h e administrator should make sure that pressure is not merely resentment. 9 Also before making any decision with regard to a pressure, the administrator should

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malee a serious effort to see the validity of the other point of view reflected in the criticism. It may be that the criticism reflects a genuine public attitude and that the official notions of the public interest, impelled by the logical development of integrating concepts, have strayed away from the public's notion of its own interest. Once the administrator has determined that the pressure is real and not merely resentment and that the point of view represented by the pressure is not actually more in harmony with the society than his own, he is ready to confront any pressure. If the pressure comes from a special interest group, the administrator must always remember that his responsibility is to the public. Any other notion would be gangsterism. H e must constantly keep in mind in any meeting with a special interest group that no one else is attending the meeting besides himself and the special interest group, but that many other people may have an interest in the outcome. He should have the sophistication to realize that the identification of special interest with public interest is a very easy identification to make. He must also remember that the public interest in a liberal state does not sacrifice groups and individuals unnecessarily, that a special interest does not necessarily conflict with the public interest, and that group pressure may be a way of discovering needed reforms. If the administrator determines that the pressure does not come from an interest group but is a fairly widespread dissatisfaction with a rule or program, he must try to find the most deep-seated social value in the situation and rest his case on that. If he selects properly, even though criticism may be fairly widespread and cause him discomfort, it will not have any extreme or disrupting results. H e will be in tune with his society, and the fact that the undesirable criticism persists only means that his society is not completely unified. Because of the fact that people often get confused on complex issues, the administrator has the right and the duty to wage a public educational campaign (create a counterpressure) to bring the dissidents over to his way of thinking, providing he is sure that his position is based upon a social value more profound than that of the critics. If the criticism becomes widespread enough to place the successful administration of his program in jeopardy, he must make popularizing changes both to save the other values of his program and because there is a good chance that he is in the wrong. If the pressure reaches proportions where Congress has become interested, and it seems likely to develop into congressional action harmful to his program in general (that is, action of Congress as a group rather than as individuals or groups of individuals), the administrator

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must accede to the pressure. T o do so does not involve lack of integrity in any sense. It is "to do a little wrong in order to do a great right." It is an exercise of moral intelligence. To insist upon the inviolateness of principles in the face of serious destructive action by Congress is to bask in a fool's heaven. T h e question of whether the administrator, having made sure that he is right, also has the right to wage an educational campaign or create a counter-pressure against Congress is a question lacking any ready answer. If the administrator has properly followed the guides outlined above, he should follow through until asked to resign.

Chapter 7. THE SOCIAL PSYCHOLOGY OF PLANNING: THE INTERNAL PHASE U P TO Tins POINT the discussion has been chiefly concerned with the more formal, visible aspect of the planning process. It has been concerned with the administrative procedures and practices of the rationing personnel in planning the rationing rules more than with the internal forces that shaped the decisions that determined what solutions to the problems presented would be evolved and accepted. The evidence from rationing planning indicates that this formal aspect of the process is relatively unimportant in explaining why the rationing rules or plans came to be as they were. Much more important in understanding the rationing rules is what has here been called the internal aspect of the planning process—the social psychology of decision-making. However, presenting the formal aspect first, as has been done, probably conforms more closely to the reader's expectations and should aid in understanding the discussion of the internal phase of planning that follows. This rather long chapter will be concerned with the social psychology of the planners themselves—with their intellectual and moral characteristics which, in the last analysis, determined what kind of plans they would evolve; what kind of decisions they would make.

INACCURATE STATEMENT O F T H E PROBLEM In a sense, the source of most of the faulty rules, rules that caused trouble both to the OPA field organization and the public, was failure to state accurately the problem to be solved. An accurate statement of a regulatory problem will include a careful definition of purpose; an estimate of the reactions of all persons affected; and due consideration of factors of space, time, and matériel. It may be true that a perfect statement of the problem would result inevitably in a single solution. At any rate, as more of the factors in the situation are comprehended, the area of disagreement over the solution is narrowed. The conflicts of the planning and clearing process were usually conflicts between groups

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that had comprehended less than the whole of the problem situation. This section is concerned with the definition of the problem situation —not with the devising of concrete procedures for its solution. T h e means devised will depend to a considerable extent upon the way the problem is defined. It comes first. T h e definition of the problem is the first obstacle—the first opening through which the non-logical, nonrational factors in decision-making intrude their influence. There is no better example of the confusing, complex rules that result from an imperfect statement or understanding of the regulatory problem situation than the original house-trailer amendment in tire rationing. T h e first tire rationing regulations made no provision for hauling house trailers from the place of manufacture. It was soon discovered that some essential war workers had to live in house trailers because there was no other housing available to them; that these trailers in many instances had to be hauled by truck from the manufacturer to the place where they would be used because no rail transportation was available; and that, consequently, the tire regulations had to be amended to allow tires for such trucks. T h e decision to amend in such a situation was very easy to make; it made itself. T h e statement of the problem above was obviously the statement of the advocate of the change. T h e statement was a selection from the situation of its absolute requirements so as to make a favorable decision inevitable. It accomplished that purpose. Unfortunately, however, the planners accepted this as the proper statement of the problem situation and wrote a rule which merely placed the words "you may get tires f o r " in front of the advocate's statement. A tire certificate could be issued for: A vehicle used exclusively for . . . the following [purpose]: To tow house trailers from the place of manufacture to sites where such trailers are necessary to house workers directly engaged in indispensable war production, but only if no other housing is available, and only if the haul is 200 miles or less. . . . No certificate shall be issued under this paragraph where the house trailers can be practicably transported by rail. . . . [With regard to such hauls in excess of 200 miles], the State Rationing Administrator may in his discretion permit the Board to grant an application in such case if the haulage is indispensable to direct war production.1 A board member trying to find an instruction for a course of action in this rule must have come close to a nervous breakdown. T h e applicant could not be denied a tire simply because he had not used his truck "exclusively" for the stated purpose in the past, because he did not know he was supposed to do so; in fact, he was not required to do so. Perhaps the applicant should be asked to use his truck in this fashion for a few days in order to establish his eligibility. Or, better still,

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perhaps the board should require a promise from him that he will use his truck in this fashion in the future. If the board could determine eligibility by extracting a promise from the applicant, then the applicant's continuing eligibility would depend upon his own determination of what work was "indispensable," whether any "other housing is available," and whether the trailer "can practicably be transported by rail." The peculiar nature of the 200-mile limitation has already been discussed in Chapter 1. It means, literally, that tires may be allowed by boards for absolutely essential hauls under 200 miles, and by the state offices for absolutely essential hauls in excess of 200 miles. It is a manifestation in the rules of the general distrust of local boards felt by the rule-makers. In actual practice, the local board would not know how long the applicant's future hauls would be, and the applicant would not either. The board could only extract a promise from the applicant that he would not make hauls in excess of 200 miles. If the applicant refused to make such a promise, his case could be referred to the state rationing administrator, who would then have to determine whether hauls not yet made, and perhaps not known about if no trailer orders were on hand, were "indispensable to direct war production." Actually, all the state rationing administrator could do would be to extract a promise from the applicant that he would make hauls in excess of 200 miles only if they were indispensable to direct war production. The local board was certainly just as capable to receive such a promise as the state rationing administrator and would already have such a promise with regard to hauls under 200 miles. With such a confusing and complex rule, what would the local board do? The answer to that question is very simple. Any trailer manufacturer who needed tires to haul his trailers to the purchasers would get them. The boards would simply disregard nine tenths of the rule, and the boards would be right. In the actual problem situation as it then existed, the boards would have achieved a higher percentage of accuracy in terms of the ultimate objective by merely granting all bona fide applications for tires for hauling trailers than they could achieve for most of the eligibility rules. People bought house trailers during the war in most cases becausc they could not find any other place to live, not because they preferred to live in house trailers. They could not find any other place to live because they had moved to a center of war production, where they could get the higher wages of war production, a center of war production which had become a "congested area" for that reason. Thus, in most cases, the very fact that a person wanted a house trailer would, of itself, indicate that he was "engaged in indispensa-

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ble war production" and " n o other housing [was] available." These questions, which the local boards could never determine, were determined automatically by the problem situation. Furthermore, even though a truck hauled a very few trailers for nonessential purposes, it would still be needed to haul them in a large number of cases "indispensable to direct war production." T o simplify even further, since life is more important than war production, there was no need to distinguish between the war worker and any other worker in terms of a place to live. There is no criterion for choosing between one person and another to determine who is going to lie in the park and freeze to death. Having restated the problem in its proper terms, a solution becomes easy. T h e rule might well have been: "Trucks hauling house trailers from the manufacturer principally for purchasers who will live in them, to places to which it is impractical to ship them by railroad, can get tires." However, the "purchasers w h o will live in t h e m " phrase could well come out without any change in the net effect (although it might be desirable in order to avoid criticism of the rule itself). T h e lack of rail facilities provision should not be in the eligibility rule but should be a " u s e " rule imposing a duty on the applicant, once he gets his new tires, to use them in such a way as to avoid hauls which duplicate railroad facilities. T h u s , the rule which the boards should have been asked to apply is as follows: "Issue tire certificates to persons who need tires for hauling house trailers from the manufacturer to the ultimate purchaser." This is the rule the boards actually followed, regardless of what the published rule said. This rule also would have achieved the same theoretical effect. As far as the 200-mile limitation on absolute essentiality is concerned, the less said about that the better. Another example of a confused rule (solution) resulting from failure to state accurately the problem situation which the rule is to "cover" was the provision for occupational rations in food rationing. T h e sugar rationing rules will be used for illustration. M a n y labor unions and individual workers in heavy occupations insisted that workers in heavy industries be given additional food rations because they needed more energy for their work. There were also people, such as sheepherders, w h o for long periods lived away from markets or other sources of substitute food such as fish, eggs, or poultry. T h e i r sole food supply was what they could buy with their ration stamps. T h e meat rationing program had a provision which allowed additional food points for these "isolated" persons. W h e n the labor demand for occupational rations became very heavy in 1944, the food rationing officials amended the regulations so as to be prepared for occupational rationing if the pressure became too

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great. In planning these amendments, they confused the problem of additional food being required because of isolation from sources of substitute food with the problem of additional food being required because of the nutritional needs of an occupation. The amendment which changed the sugar regulations allowed additional sugar for persons . . . if ( ι ) they can obtain additional [meat] points . . . because of the isolated nature of the place where they live or the conditions of their work; [and] ( 2 ) they work in industries or occupations designated by the "Washington Office." 2 Both conditions had to apply. The applicant had to be isolated, and he had to work in an occupation designated by Washington as one requiring more food. There is no relation between the needs resulting from isolation and those resulting from the heavy nature of the applicant's work. Under the rule quoted above, a person who needed additional food because of isolation could not get it unless he also was engaged in a designated occupation. On the other hand, a person in a designated occupation who needed additional food because of the heavy nature of his work could not get it unless he was also isolated. The two "solutions," by being combined, defeated each other. Three months later, another provision for occupational rations was added to the sugar regulations. It contained the same confusion of need because of isolation and need because of occupation. Consumers in occupations designated in Appendix A of this order may apply for [additional] ration evidences to obtain sugar . . . if ( ι ) their business or occupation is of such a nature that they live and work under isolated conditions without access to food supplies except those which they carry with them; (2) they carry their supply of food with them and prepare their meals themselves; ( 3 ) and they prepare such meals at a place where there are no permanent "kitchen" facilities or storage facilities.3 Appendix A was added at this time and listed one occupation—sheepherders. This occupation was chosen, obviously, because of the isolated nature of the work rather than because of any nutritional problem. Therefore, this occupational provision was even more confused than the first. T o paraphrase the rule, a person in a designated isolated occupation can get more sugar if his occupation is of an isolated nature and if he is isolated. The needs of isolation and the nutritional needs of occupations are here so scrambled up that the rule is almost meaningless. Actually, it allows isolation rations to isolated sheepherders and nothing else. But the problems of isolation are not confined to the sheepherding occupation, and that occupation has no unusual nutritional needs.

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A year later, the food rationing officials felt they had to comply with labor demands for occupational rations for workers in certain heavy industries. T h e two provisions in the regulations discussed above certainly would not help the situation, and so they were forced to restate the problem in its correct terms and thereby find a workable rule (solution). The new rule provided that Certain consumers will be granted evidences for sugar [and other rationed foods] to meet their nutritional needs. Such issuances will be given only if those consumers are workers in an industry or occupation designated by the Deputy Administrator for Rationing, and only after a determination based on studies and recommendations made by the War Food Administration.4 This provision was quite efficiently related to the problem situation and showed that the planners had finally stated the problem in its correct terms. A slight confusion still remained, however, for the new provision provided that "any consumer who is entitled to issuances under this section shall not be entitled to issuances under Section 2.10," the second occupational-isolation provision, discussed above. However, a person may have both an occupational-nutritional need for additional food and a need resulting from isolation. T h e two are distinctly separate. INCOMPLETE

PLANNING

Frequently in the process of planning the rules, a rule would be issued before the problem had been completely thought through. Sometimes this was because the planners did not have enough information immediately available and did not have time to get it before the rule had to be issued. Sometimes, however, when the problem was tough, the planners simply did not want to go through the intellectual tortures of solving it at the moment. In other words, they put off a distasteful duty. This procrastination is an ostrich technique because the problem immediately comes back for solution. Either the field organization or the public will find questions which the rule does not answer, and the planners will have to sit down and find a solution for the problem eventually. This being so, it is better to avoid the questioning and correspondence, the period of uncertainty, by solving the problem before the rule is issued. T h e general, uncertain terms, which occupied such a large place in the rationing rules, were often the result of this kind of intellectual laziness. These general terms immediately had to be interpreted or amended. During a certain period in fuel oil rationing, some consumers were required to convert their oil-burning equipment to the use of coal, unless this involved an "unreasonable expense." The field immediately

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wanted to know what an "unreasonable expense" was. Although the attorneys never accepted the solution as official, the rationing planners decided that a conversion to coal which cost more than 25 per cent of the original cost of the oil-burning equipment was unreasonable and so told the field by instruction. T h e original shoe rationing regulations provided that if a consumer gave his shoe stamp to a dealer who was then "unable to fill" his order, the dealer then must return a special shoe stamp to the customer as a refund. Dealers began to write in inquiring as to what "unable to fill" an order meant. T h e planners then decided that what they really meant was that a dealer who "does not" fill a consumer's order, for any reason, should refund him a special shoe stamp. 5 Examples of incomplete planning of the type described above could be multiplied a hundredfold. A better example of incomplete planning, and one that had rather serious consequences, was the provision in the original sugar rationing regulations for registering new business establishments. W h e n sugar rationing began, all institutional and industrial users of sugar who had used sugar prior to April 20, 1942, were asked to register with local boards. Thereafter they received allotments of sugar (in the form of ration currency) every two months, equal to a certain percentage of their past use of sugar. In other words, they had to reduce their use of sugar the same as everyone else. This provision was designed to control the institutional and industrial users in business at the time rationing started. T h e planners did not know what to do about new institutional and industrial user establishments—those that wanted to start business after rationing began, but they felt they should "cover" the situation in the rules, just the same. Consequently, they inserted the following provision in the rules: Any person desiring to registration pursuant to having jurisdiction over located, for registration allotment."

obtain sugar for an establishment not eligible for Rationing Order No. 3 may petition to the Board the area in which such establishment is, or will be, and assignment to such establishment of an . . .

W h i l e the original order was being planned, the Chicago Powdered Sugar Mills (and many other industrial users) decided it could do better under rationing if it switched to the manufacture of a beverage. Officials of this company discussed the problem with O P A officials in the Chicago office, who told them that the sugar regulations being planned contemplated new industrial user establishments, and that the company did not need to register on April 28 as all existing industrial users were required to do. Subsequent to the April 28 registration, on M a y 2 1 , this

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company applied to the Chicago OPA district office for an allotment of 1,500,000 pounds of sugar for the May-June allotment period. The Chicago district office, acting under the provision for new establishments quoted above, granted this allotment. The company later got an allotment for July-August. In August complaints from competitors disclosed that this allotment had been erroneously issued to a "new user"; no provision in the regulations allowed such allotments, although new users were authorized to apply for them under the above quoted section. T h e Chicago enforcement officials sought an injunction preventing the company from using the sugar thus erroneously acquired. T h e court said the company had made a full disclosure of the facts and acted in good faith, investing 57,000 in equipment. It granted an injunction against the use of only 40 per cent of the sugar which the company was using to make fondant, because the company had not applied for sugar for this purpose. The company was allowed to use the rest of the sugar it had acquired for making beverages. T h e company received no further allotments after the July-August, 1942, period and petitioned the Washington O P A office for an allotment in November, 1942. This petition was rejected. The letter from the food rationing division director denying the petition, while acknowledging that the regulations allowed new users to apply for registration and allotments, stated: Nothing in the Rationing Order, and nothing certainly in the Section referring to new establishments, indicates that the Office of Price Administration will act favorably upon a petition filed by such an establishment. At the time the regulations were drafted it was believed that circumstances then not foreseen might make it advisable in the future to establish new sugar-using businesses in the public interest. In actual application, however, the position of the Office of Price Administration is that new businesses may not be granted an allotment of sugar. In other words, although the regulations inform new industrial users of sugar that they may apply for allotments, nothing in the regulations says they will get them, and, in fact, they will not. So incompletely had policy with regard to new business been thought out that many new sugar-using businesses were established upon advice received from OPA field officials, especially board personnel. T h e food rationing division in Washington received so many petitions similar to the Chicago Powdered Sugar Mills' that in July, 1943, it adopted a policy of allowing allotments (more accurately, sugar bases) to new users who acquired facilities in reliance upon erroneous O P A action.

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Acting under this policy, a new sugar rationing branch chief decided that the petition of the Chicago Powdered Sugar Mills had to be granted, although under the formula developed by Washington for granting allotments to new businesses with no past use of sugar, the company would receive about 720,000 pounds per year rather than the 750,000 pounds per month it had originally asked for and received. Enforcement and the Chicago regional office opposed granting the petition on the ground that it would cause OPA to lose face, but the new sugar rationing branch chief did so anyway in December, 1943. The Chicago OPA district office felt it was being criticized for the original issuance, and the Chicago region refused to allow the sugar certificates to be issued unless it was ordered to do so by Chester Bowles, then the Administrator. It referred the case back to Mr. Bowles in January, 1944. Not until March, 1944, after the regional office had been ordered by Mr. Bowles to comply with the authorized decision of the Washington food rationing division, did the Chicago Powdered Sugar Mills receive its allotment. All of this trouble and uncertainty resulted from incomplete planning in the first place. Vague feelings and premonitions are not a fit basis for regulatory rules. Wherever possible, the problem should be solved before the rule is promulgated. L A C K OF P R O C E D U R A L C O N S C I O U S N E S S It is easy to state an objective or to issue an order that such and such an objective be achieved. It is much more difficult to think and plan and devise how to achieve that objective. Planning how to achieve an objective—that is, planning the necessary procedures—is a prerequisite for achieving the objective. Often in the procedural planning process, factors will be brought to light which show that the objective, as stated, cannot be achieved. Thus, at the time the objective is decided upon, it is extremely important that procedural thinking be brought to bear on the planning process. Many "policies" would never become more than wistful dreams if this were done, to the advantage of everyone concerned. The close relationship between these procedural considerations and the success of a plan is well illustrated by the following case. The procedural consideration in this case involved no more and no less than the manual dexterity of a local board processing clerk. Coffee rationing began late in November, 1942. Certain stamps in Book One, previously issued for sugar rationing, were designated as coffee stamps. These were stamps 20 through 28. Consumers were told that no coffee stamps could be used from the books of children under fourteen years of age.

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In Februar}·, 1943, when Ration Book II was issued, the planners had a chance to implement this prohibition. In order to get a Book II, a consumer was to be required to present his Book One, along with a declaration stating how much canned food he had on hand and how many pounds of coffee in excess of one pound he had had on hand the previous November 28, 1942. T h e processing clerk at the registration sight was to "tailor" stamps from his Book One and Book II equal to this "excess inventory." In addition to that, all coffee stamps from books of children under fourteen years of age were to be removed. T h e task of devising the procedures for issuing Book II was assigned to two analysts in the office of the executive officer for rationing ( C A F - 9 and 1 1 ) . It was a difficult procedure to devise, and in order to make sure that their procedure would work they tested it on rationing department personnel. A "registration site" was set up in a wing of old " T e m p o D , " where O P A was then housed, and some fifty "families" were run through. An analysis of the errors made by the "issuing clerks" showed that several changes were necessary, including the redesigning of the declaration form. T h e most common error occurred in removing the coffee stamps from children's books. As stated above, the first coffee stamp was number 20. It was in the second row of stamps, directly above number 19, which was not a coffee stamp (it was being saved for shoes). In tearing around stamp 19 in order to remove stamp 20, the "issuing clerks" tore out or tore in half stamp number 19 in about 25 per cent of the cases. This would never have done in the actual registration; a large per cent of the children's books would have been mutilated and new books would have to be issued with a tremendous loss in time and much confusion. Therefore, the two analysts got the coffee ration order amended to include stamp 19 among the coffee stamps. This change allowed the issuing clerks to make a safe, square tear when removing children's coffee stamps rather than a jagged, stairshaped tear which would have resulted in many spoiled ration books. At the beginning of this chapter it was pointed out that successful regulatory problem-solving must include in the statement of the problem to be solved considerations of space, time, and materiel and the possible reactions of all persons whom the rule will affect—both the public and the field personnel. A "solution" too complicated for untrained field personnel is no solution. A "solution" which overlooks the availability of necessary materiel, such as forms or even pencils, is no solution. A "solution" which overlooks the facts of public reaction— that is, of human psychology—is no solution. A "solution" which disregards the phenomena of time and space is no solution. A correct solu-

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tion to a regulatory problem must give due consideration to all of these factors; it must weigh the advantages and disadvantages of one procedure as opposed to another; it must be self-conscious. It must not be based on ignorance. In rationing, some objectives were stated by a few "higher" officials. More were stated or planned in policy meetings by a branch chief and some of his section chiefs. T h e planning of objectives by "higher" officials—division director, assistant division director, and branch chief —was more common in the early days of rationing. These "higher" officials were more concerned with the broadest purposes of rationing —reduction of demand, a greater equity—or public, congressional, and inter-agency relations than with the procedural considerations outlined above. O n the other hand, the "lower" officials who made up the branch policy groups responsible for planning most rationing objectives had no special qualifications as procedures analysts, although some of them developed an extremely high degree of skill before the war was over. Most of these "lower" officials were drawn from the lower or medium echelons of business and had never before faced the intricacies of regulatory problem-solving. M a n y of them were former salesmen stranded for the duration on the sandbars of war-born scarcities. Furthermore, they were organized into specialized operations which often had more relation to normal business practice than to the needs of war-time rationing. This specialization prevented the integrated procedural thinking which was needed. T h e only point where procedural integration could take place came after the "policy" preoccupations of the "higher" officials and the specialization of the "lower" officials (civil service title of "business specialist") had made their contributions to the assigned objective. This was the point where the objective or plan was to be put in its written form. Writing is probably an indispensable part of complete thinking. It provides a recording service which enables us somewhat to overcome the mind's lack of "peripheral vision." T h e legal drafter first filled the role of procedures planners and thereby made, to a certain extent, a sorely needed contribution to "policy" planning—the planning of objectives. Instruction writers, first established as professional clearance experts, later challenged the legal drafters for predominance in procedural planning, at least in one division. Even in that division, however, the foothold of procedures analysts (instruction writers) on the mountain of "policy" creation was won only after a long struggle and was always precarious. Although the legal drafters, when trying to reduce an objective to sensible proportions in a legal document, rational-

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ized somewhat many rationing "policies" which would otherwise have been only pious hopes, their notions of human psychology and their frequent sorties into legal mythology prevented t h e m from making t h e contribution which their strategic position in the process otherwise made possible. In fact, it is the author's opinion t h a t t h e procedural conundrums frequently posed by their legalisms reduced their procedural contributions to a minus quantity. However t h a t may be, the legal drafters were the principal procedural analysts for m o s t of t h e rationing programs. T h e result of these conditions and relationships was t h a t the rationing rules were filled with " p o l i c y " statements without procedural imp l e m e n t a t i o n — t h a t is, they were filled with wishful thinking. T h e r e were also, of course, many well-implemented procedures and plans based upon consideration of all pertinent factors. Perhaps even a majority of the rules were of this type. However, a sizeable proportion of t h e rationing rules reflected a considerable lack of procedural consciousness. M u c h of the success of rationing was due to procedural planning by t h e O P A district offices. S o m e of t h e m rewrote for the local boards nearly every plan or procedure sent out by W a s h i n g t o n . T h e y also devised a great many forms for local board and public use, perhaps almost as many as the W a s h i n g t o n office did, and without t h e benefits of Budget Bureau clearance, at that. If district offices did n o t do this or do it properly, and the W a s h i n g t o n "policies" were not procedurally implemented or feasible, local boards created their own policies and planned their own procedures. A good proportion of the lack of local board uniformity, perhaps most of it, was due to t h e working and thinking habits and attitudes of the rule-makers in W a s h i n g t o n . A n d this is not to say that any other groups of persons would have done better. W e do not train people for this kind of undertaking. W e still operate on the beliefs that one person can govern as well as t h e next and t h a t governing is easy. Lack of procedural consciousness on the part of many rationing officials was particularly noticeable in their disregard for t h e limitations of time. F o r the first year and a half of rationing there was a continual battle between the rationing branches and analysts in t h e executive office over the issuance and effective dates of a m e n d m e n t s . T h e branch officials often failed to recognize the fact that between t h e promulgation of a rule and the time it begins to affect h u m a n behavior there must be a necessary period for printing, distributing, and absorbing. T h e original allotments of camelback to tire retreaders were not large enough, and so the tire rationing regulations were a m e n d e d to allow

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an additional allotment. T h e amendment was issued March 16, 1942, effective March 1 7 . Applicants for the additional allotment had to apply to boards between March 1 7 and April 1 . M a n y of them would not hear about this procedure by that time. More important, however, it was physically impossible to reach all the boards with the instructions before April. Therefore, boards received applications for something they had never heard anything about. T h e applicant had to attach a supplemental statement to his application. N o form was provided for this purpose, and so the only way he could find out what he was supposed to state was from a local board which had not yet received any information about the procedure and probably would not receive it until after the deadline for filing the applications had passed. W h a t would happen in this situation is that boards would find out about their duties by talking to the applicant, by a telephone call from the district office, or by reading the newspapers. T h e April 1 deadline, therefore, would be generally disregarded. Or else retreaders would simply not receive additional camelback. T h e careful plans and instructions of the Washington office were made largely meaningless by failure to consider the limitations of time. Because of insistent complaints from the field and the educational work done by analysts in the office of the executive officer for rationing, the principle that a program change requiring board action could not be made effective until boards had time to receive and absorb official instructions about the change became finally a rationing dogma, but the process took about two years. Another indication of lack of procedural consciousness among the rationing officials was their willingness to ask boards to determine many questions of fact for many applicants without the benefit of an application form with the questions printed on it for the applicants to fill out. It is difficult to understand what the planners expected the boards to do in this situation. Their idea seemed to be that applicants would walk up to the counter, and the counter clerk would read out of the regulations the questions to be answered. Even if this were feasible, however, the counter clerk would need something to record the answers on so that the board members could pass upon the applicant's eligibility. Although all rationing divisions were culpable, the willingness to ask boards to operate without the aid of forms was perhaps strongest in the food rationing division. T h a t division had an all-purpose form, R - 3 1 5 , which had little more on it than lines on which to write the applicant's name and address. Often when a new problem or program requiring an application from someone was conceived, the questions to be asked were spelled out in the regulations and the applicant was told to apply

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on R-315. Since he did not get copies of the amendments, the applicant presumably would go to the board, where the counter clerk would read to him the questions from the regulations. T o give the reader an idea of how difficult, if not impossible, this would be, the questions which the regulations required one type of applicant to answer on form R-315, the blank all-purpose form, are here quoted. This example is not atypical. An applicant for additional sugar to can fruit at home for sale to the public applied as follows on form R-315. The Application shall state: ( 1 ) The number of pounds of sugar his family unit used from February 29, 1944 through February 28, 1945, to produce, for sale, "home processed foods" from fruits and fruit juices; (include only the amount used in the products actually produced and sold by him during this period; the amount used in products he used or gave away may not be included). ( 2 ) The number of pounds of sugar his family unit used from February 29, 1944 through February 28, 1945, to produce "in a kitchen" for sale, jams, jellies, marmalades or fruit butters (include only the amount used in products actually produced and sold by him during this period; the amount used in products he used or gave away may not be included). ( 3 ) The number of quarts of finished home processed foods he will produce for sale from fruits and fruit juices; (4) The number of pounds of prepared fruit he will use to produce for sale jams, preserves and marmalades; ( 5 ) The number of pounds of prepared fruit he will use to produce for sale jelly or fruit butters; (6) The number of pounds of sugar applied for; (7) The number of pounds of sugar, if any, obtained since February 23, 1945, by members of his family unit under this section to produce these products for sale, and the name of the applicant; (8 ) The number of pounds of sugar, if any, obtained in 1944 for these purposes which he and his family unit still have; (9) What facilities he has for producing the above items for sale; (10) If the Board to which the application is made is not the Board from which sugar was obtained for these purposes in 1944, he must give the full address or the other Board.8 It should be obvious to the reader that the procedure of using R-315 and listing in the regulations the questions to be answered was pure wishful thinking. Even if the counter clerk had time to read these questions and wait for the applicant to answer them, the applicant could not do so. He would have to go home and study them and look up his records. The all -purpose form was a form which served no purpose well. The R-315 form in food rationing and other forms like it were procedurally impossible. What happened was that the field offices or the boards, if they had the money or equipment, designed their own forms for purposes such as the one discussed above, basing their ques-

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tions on those listed in the amendment. Since all forms were supposed to be cleared by the Budget Bureau, and field forms never were in fact, the Budget Bureau officials displayed a singular denseness when they cleared a reporting requirement like the one described above. A plan or procedure which leaves many questions unanswered, either for the officials who apply it or the persons to whom it applies, is a faulty one. As the uncovered situations (the unanswered questions) arise, the field officials either will have to improvise, with resulting loss of uniformity, or they will have to wait for further instructions. Incomplete plans or procedures create doubts and confusion. Although many rationing procedures were carefully and completely thought through and left very few questions in anyone's mind, there were also many that raised questions and doubts. Such procedures were the tire rationing housetrailer amendment, discussed above (beginning page 1 7 8 ) , and the lost ration book replacement procedure (beginning page 29). In September of 1942, taxicabs were made eligible for new tires and also for recapping with truck-type camelback. 9 T h e applicant had to state that he had complied with all of the Office of Defense Transportation ( O D T ) rules relating to taxicabs (group riding, anti-cruising, antisightseeing, etc.). T h e intention was to make compliance with O D T rules a condition of tire eligibility. This procedure, including both the amendment and the field instructions, left many questions unanswered. W h a t if the applicant was not sure he knew about all of the O D T rules and refused to make the required statement? Or what if he did state he had complied with O D T rules, but the board knew he had not? By what method or procedure could it be established whether he had complied—was a hearing necessary? Or what would the board do if it were established in some way after he got the new tires that he was not complying with O D T rules? In actual practice, boards would issue tire certificates for taxicabs which needed tires and pay no attention to the other conditions or modifications of the rule. T h e rule was written to be read, not acted upon. In fuel oil rationing, a person who had a coal stove which would satisfy his needs could not get a fuel oil ration for his oil stove. If his coal stove did not satisfy his whole requirements, he could get a fuel oil ration to make up the difference. Boards were told, in such cases, to reduce the applicant's fuel oil ration by the amount of oil which could be saved by maximum use of the coal stove. Boards were never told how to figure this out because no one knew how to do it. Nevertheless, it was a duty incumbent on boards throughout the life of fuel oil rationing. Lack of procedural consciousness was also manifested by rules which

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overlooked the facts of human behavior. Since the issuance of a rule assumes some corresponding response in human activity, a rule which is posited on a false notion of human behavior will be inoperative and may expose the rule system to ridicule. Many of the rules which required that applicants apply by a certain time or not at all—that is, rules imposing deadlines—overlooked the strong human tendency to procrastinate (and also the limitations of time). The results, as we have seen (pages 50 ff.), were that the deadlines had to be extended frequently and often lifted entirely. Such extensions tended to cause disrespect for the rules. In the 1942 and 1943 "sugar for home-canning" programs, there were two rules based upon a very naive conception of human behavior. In the 1942 home-canning program, there was a provision that any person who received an allotment of home-canning sugar and did not use it all for home canning during the period for which it was issued had to return, in person, his or his family's ration books to the local board to have valid sugar stamps removed equal to the unused portion of the home-canning allotment. 10 If sufficient sugar stamps had not yet bccome valid, the board was to hold the books until stamps equal to the unused portion of the canning allotment had become valid and had been removed. T h e 1943 home-canning program provided that stamps 15 and 16 in Ration Book One could be used for five pounds apiece, providing the sugar so obtained was used for home canning in accordance with the regulations. 11 T h e requirement that people could only use these stamps to acquire sugar for canning, at the rate of one pound of sugar to four quarts of fruit, was fantastic enough, but there was more to the rule. If a person did not need exactly five or ten pounds of sugar for home canning, he was required to exchange the home-canning stamps 1 5 and 16 at his local board for a sugar purchase certificate made out to the exact amount he needed (up to ten pounds). Another indication of lack of procedural consciousness can be seen in the rationing officials' willingness to issue requirements which were justifiable in terms of "high principles" but were obviously impossible of application. T o some rationing officials, principles stood on their own feet, regardless of human behavior; a theory could be good even though practice under it were bad. Good examples of rules which were impossible of application but "sound in principle" are the following ones taken from the food rationing regulations. Coffee rationing was announced early in November, 1942, a few weeks before the program went into effect. In order to reduce hoarding of coffee after this announcement, the public was told

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that eventually consumers would have to surrender coffee stamps to O P A for all coffee they had on hand when the program began in excess of one pound per person. T h e coffee rationing program used stamps in Ration Book One, which had been issued the previous May. Because there was no effective administrative sanction, consumers could not have been required to bring their ration books to local boards at the beginning of coffee rationing to have coffee stamps removed equivalent to the amount of hoarded coffee they had at home. Such a necessary administrative sanction did not develop until the following Februar)', when Ration Book II was issued. In order to get this ration book a consumer had to present his Book One. Here, finally, was the opportunity to remove stamps equal to the consumer's coffee hoard at the time coffee rationing began. Consequently, the consumer was asked to state to the O P A on a special form, during the week of February 2 1 , 1943, through February 27, the number of pounds of coffee he or his family had on hand the previous November 28, 1942. M a n y rationing officials thought it was fantastic to require consumers to remember a fact which existed on a certain day three months previous. T h e food rationing officials, however, insisted that O P A go through with the program of removing stamps from Book O n e equivalent to the consumer's coffee inventory at the beginning of coffee rationing because at that time O P A had promised that it would eventually do so. In these officials' minds, it was more important to make good on a threat and play fair with the people who had been affected by that threat and had not hoarded than it was to make practical sense. During the same month, this type of thinking was applied in food rationing in an even more extreme form. T h e food rationing officials, fearful of duplicate issuance of Book One under the guise of late applications for the book, installed a "tougher" late-applicant procedure. In applying, the applicant had to state the amount of sugar he had on hand on M a y 4, 1942, almost a year previous. If an applicant put down any figure besides zero in answer to this question, whatever that figure represented, it most certainly did not represent the number of pounds of sugar that he had on hand a certain day a year previous. A person who remembered a thing like that would be almost a freak. However, even though the question could not possibly be answered truthfully, the planners felt they had to ask it in order to be fair to people who had already received their books and had had stamps removed for the excess sugar they had on hand when sugar rationing began. Practice under the rule might be senseless, but "the principle was sound." 1 2 As time went on, the rationing officials became much more con-

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scious of the all-considering nature of successful planning. T h e problem of timing became well understood by the end of the war. T h e fuel oil renewal programs for 1944-45 and 1945-46 were based almost entirely on consideration for local boards' problems in determining and mailing several million fuel oil rations within a three or four-month period. Rationing officials generally, however, had a long way to go before gaining a complete appreciation of the need for procedural integration of a large number of factors in successful planning. Right up to the very end of rationing, rules were issued which were largely wishful thinking. ESTHETICS All of the rationing rules were planned and issued to solve some problem. However, the problem was not always one of government regulation. Some rules were issued chiefly to satisfy the planners' need for symmetry or proportionality. M a n y amendments were designed, in the language of the rationing officials, " t o clean up the regulations." These were called "clean-up" amendments. Little inconsistencies, misprints, clumsy wordings, and obsolete sections would be "removed" from the ration order by such an amendment. These imperfections would be removed not because they had any objective effect but because the drafting attorney would feel better after they were removed. Such amendments, to everyone but the drafting attorneys, probably confused more than they clarified. For a person who did not have a looseleaf service, a "clean-up" amendment was only another document which changed an unknown number of the previously issued documents in an unknown, almost unknowable, way. T o the person who had a looseleaf service, such as a board member, a "clean-up" amendment raised the question, " W h a t does it do?" Only to the drafting attorney was such an amendment a satisfying experience. T h e esthetic influence on the organization and arrangement of the written rules, since esthetics is only one aspect of utility, often had a distinctly non-utilitarian result. In March of 1943, all of the rules relating to the replacement of lost, stolen, or mutilated coupons and stamps were withdrawn from the various ration orders. A new legal document, called Procedural Regulation 12, was issued which prescribed a uniform procedure for replacing lost, stolen, or mutilated coupons or stamps. Stamps and coupons were only one kind of ration currency. There were also various ration certificates, and they also had to be replaced if thev became lost, stolen, or mutilated. T h e people planning and drafting Procedural Regulation 12, however, did not want "to clutter up" that regulation with provisions relating to certificates. It was to cover in a

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uniform manner only one subject. As a consequence, each ration order had to contain a procedure for replacing all its ration currency other than stamps. T h e rationing branches worked out these replacement procedures in their own ways. Consequently, there were many different types of replacement procedures, depending upon what kind of ration currency was involved, and these procedures were to be found in a great number of places. This must have been confusing to everyone concerned. T h e esthetic impulses of the drafters created problems for the field and the public. T h e esthetic influence not only operated in the desire to keep the written document pure; it also affected the substance of the plans. Rules were issued not only to "clean u p " a ration order; they were also issued to "clean up" a rationing program. Early in 1945, the fuel oil rationing branch adopted a new kind of definite-value, class 3 coupon, printed in strips rather than in sheets. Boards would have a roll of coupons to work with rather than a large number of individual sheets. T h e s e definitevalue, class 3 coupons were issued for all domestic cooking and lighting rations for periods of one month to a year, at the discretion of the board. After the new class 3 strip coupons were out, boards were to issue them rather than the old sheet coupons. Thus, for a while there would be two kinds of class 3, definite-value coupons in the system. This fact bothered the esthetic sense of the fuel oil rationing officials. T h e y felt the system would be "cleaner" if there were only one kind of class 3 coupon in the system. T h e y would have liked to require every holder of old class 3 coupons to exchange them at the boards for new ones, but this obviously would have been too much trouble for everyone concerned. Therefore, they planned to require such an exchange several months later, after most of the old type coupons had gone out of the system, all cooking and lighting rations then being issued in the new type coupon. T o speed the time when most of the old type coupons would be out of the system, the fuel oil officials, two months before the new coupons were out, provided that cooking and lighting rations could not be issued for periods longer than three months. 1 3 Thus, these rations would run out quickly, and the new strip coupons would be distributed by the time the applicant reapplied. Previously, cooking and lighting coupons had been issued for periods up to one year; most were issued for six months periods. In this case, to hasten by two months the day when they could expire all the old type coupons in the system (or when all the old type coupons would automatically flow out of the system) thereby leaving only one

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kind of class 3 coupon in the system, the rule-makers issued a rule which required most of the several million applicants for cooking or lighting rations to make an extra application to the local boards. Both kinds of coupons would be in the system for several months, and the trade and banks would be thoroughly familiar with them by the time the old class 3 coupons were expired. T h a t is, expiring the old type of coupon would not solve any problem as far as the public was concerned. T h e only problem solved would be an esthetic one in the planners' minds—the esthetic problem of an unnecessary diversity. Therefore, the rule which limited cooking and lighting rations to three months, preparatory to a later invalidation of all outstanding old type, class 3 coupons, was a rule which solved only an esthetic problem for the fuel oil rationing officials but which created additional trouble for the public and the local boards. T H E LOGIC OF T H E MAJOR

PURPOSE

A group of persons working on a rules system (i.e., an individual rationing program) sought to integrate all the specific rules of that system into a cohesive whole. T h e principle of integration was the major purpose of the system. T h e major purpose of a program acted as a powerful control over the planning and issuance of the specific rules. T h e major purpose was usually, but not always, clearly defined or conceptualized in advance. Sometimes it was inductively evolved. However, it directed the course a system took, and a rule system cannot be understood without a clear appreciation of its major purpose. Major Purpose and Specific Rule T h e first stove rationing program was essentially a program for selling coal stoves to remove the pressure on the very critical fuel oil supply. 1 4 T h e officials of W P B charged with the restriction of stove production had overlooked the significance of the fuel oil shortage when they practically eliminated all stove production. W h e n it became apparent that the limited oil supply would force many people to shift to coal, the W P B officials quickly eased up on coal stove production. T h e y also got the Army to release a large number of coal stoves. O P A was asked to ration these coal stoves, and the very small output of oil stoves, for the purpose of easing the pressure on the fuel oil supply. Reduction in fuel oil demand was the major purpose of the first stove rationing program. Under the direction of this purpose, the stove rationing program became an organized campaign for selling coal stoves to present or potential users of fuel oil in the area where fuel oil was rationed. Anyone

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who had an oil stove could get a coal stove by surrendering his fuel oil coupons to the board. Anyone who had an oil furnace could get a coal stove to supplement that furnace by promising to "save as much fuel oil as possible by using the new coal heating stove to its full extent and . . . [to] return to [the] . . . Board all fuel oil coupons . . . saved by using such coal heating stove." Any person eligible for an auxiliary fuel oil ration of 100 gallons or more (because of sickness, etc.) was urged to take a certificate for a coal stove instead of fuel oil coupons. T h e ease with which a person could get a coal stove was advertised by cooperating stove dealers using O P A prepared advertisements. It was also advertised on several cooperating national radio programs. In short, under the impetus of the major purpose to save oil, the stove rationing program "inevitably" developed into a program for selling coal stoves to anyone who was burning fuel oil or was thinking of doing so. In the summer of 1943, W P B realized that stoves, as stoves, were critically short items and ordered O P A to ration nearly all types of both domestic cooking and domestic heating stoves throughout the United States—not just within the rationed area. A new stove rationing program was installed, the major purpose of which was to distribute critically scarce items—stoves—to persons who needed them. 1 5 Although the conservation of fuel oil was still stressed, and persons in the fuel oil rationed area were expected to use coal stoves if they could, the major purpose of the program was to make sure that new stoves of any kind went only to persons who really needed them. T h e advertising features of the program disappeared; possession of an oil stove ceased to be grounds for getting a coal stove; and the program became a rationing program as that term is generally understood. T h e stove rationing officials, having gone through the strange experience of the first stove rationing program, then spent as much time defining and clarifying the purpose of the new program as they did on any other phase of the planning. Ability to Use Logic Was Chief Government Skill Although some persons are more skilled than others in the use of logic, nearly everyone can use it to a certain extent. Thus, even though some rationing officials lacked an understanding of administrative techniques and problems, all of them could see the logical relation between a specific proposal and the major purpose of the program. Consequently, the technique of logic, being a universal one, had a major influence on the rules. M o s t of the rules were logically related to the major purpose of a program and hence to each other. However, the ability to consider all factors of a situation (factors of time, space, matériel, human reaction,

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etc.) was not so universally present. As a result, many specific rules issued, while logically related to the major purpose of the program, had little or no objective effect. In spite of this fact, such rules could be easily justified to critics of the program. In fact, some of these rules probably helped to sell the whole program. T o be able to show that every situation is covered by a rule logically stemming from the unassailable major purpose of the program has the effect of proving to the critics (Congress, the press, etc.) that the administrators are operating exclusively intra vires. The interest of rule-makers in the logical relation of a rule to the program's major purpose was stronger the farther up the hierarchy one went. This was so because one of the principal functions of the higher officials was to justify the rationing programs to the critics, and the major purpose of a program was the principle of official justification. On the other hand, administrative feasibility was not a very acceptable reason for particular decisions. People are not willing to accept less than full measure, or to forego a desired objective, just because of the difficulties of administration. The administrative difficulties that stand in the way of accomplishment of accepted goals must be obvious and easy to dramatize before the feasibility argument can be effectively used. Rules that bore a clear, simple, logical relation to the accepted goal, whether or not they could be easily implemented, were easier to justify and popularize. Consequently, there were strong forces at work to produce that kind of rules and to weaken the analysis as to the administrative feasibility of rules. Some of the rules already discussed in other connections will illustrate the operation of logic alone in the solution of regulatory problems. Because of an alleged (by P A W ) plenitude of residual oil late in 1944, users of residual oil were allowed to get rations equal to their needs. After they had received their rations, residual oil was found (by P A W ) to be very scarce, and the old rules which restricted consumption of residual oil were reapplied. Reapplying the old rules could not have had an appreciable effect on the residual oil demand because all rations were outstanding, and no attempt was made to recall them, but it removed from the regulations a provision which was not in harmony with the basic purpose of rationing. The action, although it had little or no effect, was logical in the strict sense. The first sugar home-canning program required a person who did not use all of his home-canning sugar for home canning to bring his or his family's ration books to the board to have stamps removed equal to the amount of sugar which was not used for home canning. Although the

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likelihood of anyone obeying such a rule was extremely remote, the rule was in harmony with the purpose of the home canning program—to make sugar available to presene the fruit crop and thereby supplement the nation's food inventor)'. T h e same logic motivated the even more fantastic rules in the second home-canning program. (See page 192.) Such rules illustrate the complete substitution in regulatory problem solving of the ability to use logic for all other kinds of abilities. They raise the suggestion that the ability to use logic was the only ability present in that particular planning situation. T h e rules which required an applicant for Ration Book II to state the number of pounds of coffee he had on hand at a certain day three months before (see pages 1 9 2 - 9 3 ) , and a late applicant for Book One to state the number of pounds of sugar he had on hand on a certain day more than ten months before (see page 1 9 3 ) , were logically related to the major purpose of food rationing—distribution of food on the basis of mathematical equality. These rules represent an almost absolute triumph of the logic of the major purpose over administrative sense, if not, indeed, common sense. Note, however, that to criticize the food rationing officials for these rules is to criticize them for obviously trying to be fair and just. Such rules, fantastic though they are, are very easily defended. Examples such as those above could be multiplied many times. T h e sheer ability to see logical relationships had a disproportionate influence on the rationing rules. Even though some officials lacked specialized administrative ability or training, all could call upon logic as a substitute. T h e influence of logic, alone, on government regulations will probably predominate as long as we refuse to regard government as a specialized activity, requiring specialized ability or training. T h e truth in the proposition that one man can govern as well as the next is the fact that, generally speaking, one man can see the relation between a specific decision and a major purpose as well as the next; but that is all. Creation or Recognition of New Purposes Through the strong human tendency to be logical, the major purpose of a program exercised a strong control over the specific rules, as shown above. Occasionally, however, the rational process of reasoning from major purpose to specific rule would be interrupted by the insertion of will. A rule that was not in harmony with the major purpose would be insisted upon. This discordant rule actually would imply the existence of another purpose. A break in the rational process, therefore, was really the création of another purpose—it was a "policy-making" event. T h e

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hierarchy typically was involved when an apparently disharmonious rule was under consideration. N e w values and purposes were being created or recognized. In this situation, the higher officials would be involved cither as the channel by which the new purpose made itself felt on the specific rules, or the matter would be laid before them by the lower officials to avoid any later criticism by their superiors. These conflicts of purpose were big events in the lives of the lower officials, and they frequently called upon their superiors for aid in such situations. In shoe rationing, the decisions felt to be most fraught with dreadful portent were those which removed certain types of shoes from rationing to allow dealers to clear out slow-moving stock. This had to be done every so often, and the deputy administrator for rationing was frequently involved in the process. One of the toughest decisions made by the director of the division in which shoe rationing was located was the decision to remove bacon-rind shoes from rationing. These shoes were good, durable shoes, but a person, if he had to give up a shoe stamp, would buy the more expensive shoes made from better leather. T h e companies that made bacon-rind shoes said they could not continue to make them unless they were ration free. This would have cost about 12,000,000 pairs of shoes per year, mostly children's shoes and women's sport shoes. W P B urged that they be released. T h e director of the division took this problem up with the deputy administrator for rationing, and the decision was made to remove these shoes from rationing. Thus, the purpose of distribution according to need and equity gave way to the purpose of greater production. W h e n P A W continued to insist, after several denials, that oil lease negotiators be made eligible for preferred mileage, the gasoline eligibility committee, seeing no logical basis for making them eligible, referred the matter to the hierarchy. It was decided the facts should be presented to the administrative officers I the committee's term for "policy making" officials] with a statement that there may be considérations of public policy which would make it wise to accede to the Petroleum Administrator's request but that the Committee can see no basis of fact that would justify a recommendation of preferred mileage for these operators.16 T h e "consideration of public policy" was a rather bitter inter-agency fight going on between O P A and P A W over P A W ' s method of allocating gasoline and fuel oil within the industry. Thus, the committee felt that a rule which was not logically related to the major purpose of distributing gasoline on the basis of essentiality to the war effort might still be related to the purpose of winning an inter-agency fight. T h e com-

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mittee would not, itself, however, recognize that as a purpose of gasoline rationing. During the period when the pleasure driv ing ban was being enforced, the Inter-American Defense Board petitioned that the ban should not be applied to driving of its members and their families to a "welfare and recreational center" which it had established in Kensington, Maryland. This board was established in Washington during the war to work on problems of hemisphere defense. It was composed of forty army, navy, and air experts of high rank from twenty-one American Republics with a secretariat of twenty American Army officers. T h e recreational center was chiefly to provide entertainment for the Latin-American representatives and their families, but a certain amount of business was transacted there. As an Army general supporting the petition said: "It is well known that in the field of diplomacy and international relations the most successful results are often achieved by informal conferences." Another Army officer said, "Already the good effects of the maintenance of the recreation center have been apparent in dealing with South American countries." In this situation, the gasoline eligibility committee was asked to issue a rule which, according to it, did not relate to any purpose under its jurisdiction. T h e situation involved a conflict of purposes, and the committee followed a pattern by referring it to the hierarchy. The Committee sees no justification on any logical basis for making a ruling which will exempt all travel to the center in question from the ban against unnecessary driving. However, it may be felt that the importance of what is sought to be accomplished is sufficiently great to outweigh logical considerations and that a ruling should be made to hold that such driving is essential. That is a possible interpretation, although it may have an unfortunate reaction on public acceptance of the general driving ban program. This center is almost adjacent to the Chevy Chase Country Club to which driving has been greatly restricted under the pleasure driving ban. The Committee believes that the matter should be referred to the administrative authorities with a full statement of facts, but without recommendation.17 Interference with the logical relation between a specific rule and the major purpose of a program was sometimes initiated by the higher officials. T h e second deputy administrator for rationing came to his job with a few definite ideas (policies) about rationing. One that he discussed at one of his first staff meetings was that gifts of rationed foods should be allowed. U p to that time, such gifts had been forbidden because the food rationing officials felt they were inconsistent with the basic purpose of food rationing—equal distribution of food. Upon the insistence of the new deputy administrator, the ban against gifts of rationed foods was withdrawn in December of 1943, in time for Christ-

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mas. His basic motivation for this action was to gain popularity for OPA by allowing Christmas gifts of rationed food. He was an advertising man. Importance

of Clearly Defined

Purpose

Because of the control exercised through logic by the major purpose of a program, a clear concept of purpose is an extremely important part of a program. Failure to clearly conceptualize purpose may result in a non-integrated system, in confused and self-defeating rules. It also creates anarchy in discussions about specific rules, each participant, in his hidden premise, defining the major purpose of the program for himself. The importance of a clear conception of purpose can be illustrated by some of the rules relating to ration banking. Ration banking was installed after some of the rationing programs had been in operation for over a year. All had been in operation for several months. A specialized group developed the ration banking program, and the personnel of the rationing branches knew very little about it. They did not have a clear conception of its purpose. This lack of a clear conception of purpose showed itself in the rules which governed who could open ration bank accounts. If ration banking were conceived as a means for gaining tighter control over the use and transfer of ration currency, it would be logical to require large industrial or commercial consumers to open ration bank accounts. If banking were conceived as a convenience, it would be logical to permit, but not require, these consumers to open bank accounts. Actually, ration banking tended to weaken accountability controls. It made auditing more difficult; it automatically removed expiration dates from ration currency; it allowed the trade to acquire great inventories by means of bad checks and overdrawn accounts; etc. From the standpoint of the industry, ration banking was a tremendous convenience. It simplified the paper work to a marked extent. All members of the industry, except some very small accounts, were solidly for it. The rationing planners did not at first decide which of these purposes was the purpose of ration banking—industry convenience or industry control. At the beginning of ration banking, small consumers were forbidden to open accounts; an intermediate group was permitted to open accounts; and large consumers were required to open accounts. When these compulsory accounts misused ration banking, as by overdrawing their accounts, a very effective administrative sanction was made available by the fact that they all wanted ration bank accounts. This sanction was simply the withdrawal of the banking privilege. It would probably have been a more effective sanction than court action or suspension proceedings. However, it appeared illogical to require a consumer to

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open a bank account and then to withdraw the banking privilege if he misused his account. He could escape the requirement by misusing the privilege. Over a period of time, all the rationing programs rationalized their banking rules relating to consumer accounts, making the opening of an account optional and providing for withdrawing banking privileges from consumers who misused them. The rationale to the amendment which made banking optional for industrial and commercial users of fuel oil states: "Banking is a privilege conferred largely for the benefit of the consumer. It is a privilege that he may, but should not be compelled to, accept." 18 The rules relating to consumer banking were finally rationalized and harmonized by a consistent concept of the purpose of ration banking. The rules for ration banking for resale accounts (dealers and wholesalers), however, were based upon the notion of banking as industry control, rather than industry convenience and remained that way for all programs except sugar rationing until the end. (In the summer of 1946, sugar rationing made it optional for resale accounts as well.) To keep the number of accounts down, small retailers were forbidden to open accounts. All other members of the industry were required to open accounts. Because bank accounts were required for resale accounts, the planners could not tolerate the illogic of using the very effective administrative sanction of withdrawal of banking privileges from dealers or wholesalers who misused their bank accounts. Withdrawal of banking privileges could have been effectively used as an additional sanction for all the other rules regulating the industry—not just the banking rules. Ration banking actually saved the industry money in clerical time and personnel. From the standpoint of the industry, withdrawal of banking privileges would have been an effective sanction even though the planners regarded banking as a duty. Withdrawal of banking privileges, however, was logically incompatible with their conception of the purpose of ration banking—industry control—and was never applied to resale accounts. In this case, a weakening omission from the rationing rules was due entirely to the control exercised through logic by a conception of major purpose. Because of the universal tendency to be logical, a clearly conceptualized major purpose (or purposes, if they are in harmony) does exercise a real, meaningful control over the development of a rule system (or program). A clearly conceptualized major purpose is important to the successful development of a program. It helps the government official

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chosen for no particular ability or training to make full use of his one relevant talent—the ability to use logic. It contributes to the popularity of a program. MAINTENANCE O F CONCEPTS Conceptual thinking is a necessary part of intellectual progress. If each situation were regarded as unique and had to be considered anew, man would learn very little about his universe. The fact that man can use without complete reanalysis the results of past problem-solving allows him to climb ever higher upon the shoulders of the past. However, reduction of complicated situations into a concept of the understanding, while it makes for speed and efficiency in problem-solving, has certain dangers. Times may change; or new problem situations may arrive which bear only a superficial resemblance to the old situation; or the original problem-solving may have been inaccurate, the concept perpetuating that error. The rationing rule-makers tended to conceptualize the mechanics of the rationing programs. In this way, they avoided the re-solving of problems. In this way, they also perpetuated errors. The first rationing officials had settled the problem of expiration dates on ration coupons. The necessity for expiration dates became a rationing dogma. Newly developed ration currency carried them automatically. It took more than a year for later arrivals in the rationing process to get a reconsideration of the idea of expiration dates. The result was that expiration dates on ration coupons were generally abandoned. The tenacity with which the rationing officials clung to a concept about a ration mechanic was equal to that of the courts as they bring new situations within old rules—pour new wine into old bottles. In fact, the maintenance of rationing concepts was most noticeable in legal thinking. This phenomenon was a far cry from being a monopoly of the attorneys, however. Some examples of thinking dominated by conceptualism follow. Certain types of fuel oil rations were issued for three months. The coupons were made valid at the beginning of the period and expired three months later. If a consumer had not received his next ration by the time his present one expired, he would theoretically be without coupons with which to purchase oil until he received his next ration. To prevent this situation from occurring, the regulations were amended to allow the consumer to use the coupons for fifteen days after they had expired.19 To solve the problem completely, the coupons needed to be used before the beginning of the three-month period, as well as after

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it. Consequently, the regulations were later amended to allow the applicant to "use such ration during the period of fifteen (15) days prior to the date it becomes valid." 20 Thus, the ration could be used fifteen days before and fifteen days after the period when it could be used. T h e three-month valid period concept was based on the light-switch notion of social behavior. T h e overlap periods of fifteen days before and after were based upon a more realistic notion of social behavior in which the importance of time as a limiting factor was recognized. However, the drafting attorneys maintained the old concept of the three-month valid period, although it no longer had significance. Another example of the urge to preserve concepts was the treatment of the refund problem in fuel oil rationing. If a consumer surrendered coupons for more oil than he received, the dealer owed him some ration currency. He could not return loose coupons to the consumer because, rightly or wrongly, consumers were not allowed to use loose coupons; the coupons had to be part of a sheet or book which had the consumer's name written on it. T h e drafting attorneys who undertook to solve this problem decided to use the exchange certificate, another kind of ration currency. T h e exchange certificate was a check-like document issued by boards to dealers in exchange for coupons surrendered by the dealers to the boards. A dealer could convert a very large number of coupons into a single exchange certificate, made out for the same amount, and thus greatly reduce the amount of paper flowing back in the trade. T h e refund procedure adopted by the attorneys provided that the dealer had to exchange coupons at the board, equal to the amount owed to the consumer, for an exchange certificate made out to himself. He had to write "non-transferable" across the back of it and give it to the consumer. T h e consumer had to exchange it at the board for a sheet of coupons. 21 T h i s elaborate procedure was necessary even though only one gallon of oil was involved. In this procedure, the consumer's trip to the board was required merely to maintain the purity of the concept of an exchange certificate as a document used only by the trade. T o have allowed the consumer to use the exchange certificate to get oil would not have weakened the program in any way or to the slightest degree. T h e unnecessary exchange of certificate for coupons at the board was completely attributable to the attorneys' unquestioning acceptance of a concept of an exchange certificate. T h e attorneys were not the only ones w h o occasionally let conceptualism interfere with common sense. Under fuel oil rationing, consumers w h o ran out of oil before the heating year was over were given "hardship" rations to tide them over. T h e heating year began September 1.

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Early in the summer, the coupons for the coming year were issued so that consumers could fill their tanks with oil and thus supplement the industry storage capacity in preparation for the coming winter. A consumer who used up his ration before the end of the heating year (August 31 ) would receive his next year's ration early in the summer. T h e attorneys issued an interpretation which said, sensibly enough, that a person who had received his next year's ration could not be said to be suffering hardship and therefore could not be issued a hardship ration. This made the non-legal officials very unhappy. T h e y did not want consumers to use any of next year's ration before September 1 , the beginning of the heating year. If the consumer did not have enough oil from his current ration to get through the summer, they wanted him to get a hardship ration. This question was a minor issue every summer until 1945, when the regulations were amended to provide that a consumer who used up his ration before the end of the heating year could get a hardship ration even though he had received his coupons for the coming year. 22 T h e question at issue was not how much oil the consumer used but whether he was using "this year's ration" or the "next year's ration." H e would have the same amount of oil in any case. T h e new coupons issued during the summer were conceived to be the ration for the next year, beginning September 1 , and oil acquired with them was not to be used until then. T o the gasoline rationing officials, the concept under which additional gasoline was allowed was a very important question, debated with almost as much earnestness as the question of whether to allow the additional gasoline in the first place. F o r example, on November 22, 1943, a conference, was held in the office of the director of the automotive supply rationing division to decide whether short-term occupational rations should be issued as "supplemental" ( " B " or " C " ) rations or as "special" rations. It was decided that "the problem as to whether short term occupational rations should be issued as supplementary gasoline or through special rations should be referred to the Regions for opinion." 23 In general, the rationing programs were fairly flexible. T h e planners changed them constantly to keep them in harmony with public needs. However, the tendency to conceptualize the mechanics of the program and to maintain that conceptualization produced a certain rigidity in the programs, a certain inertia, which helps to explain why many very good suggestions were never adopted. It also helps to explain why some suggestions were so slow in being adopted. It may very well be that the hated disease of bureaucratic inertia is largely the result of government

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officials coming to think about their universe in a certain specialized way and being unable to view situations with the innocent eyes of the layman. Conceptualism also contributes to official vindicativeness, discussed later on. LEGAL

ATTITUDES

T h e rationing attorneys had a very strong influence on the rationing rules. T h e attorneys were organized into a separate hierarchy, and individual attorneys were assigned to the various rationing divisions, branches, and sections. An attorney who disagreed with a decision could make an issue of it, through the legal hierarchy, at the highest levels in O P A . Thus, an individual attorney could dictate decisions up to the point where the rationing officials were willing to make a high level issue of the matter. Attorneys also exercised considerable influence simply because the rationing officials, not being attorneys, did not know how much was embraced in the term "legal." Because of the influence of attorneys, it is important to understand the intellectual and emotional forms which determined their approach to regulatory problem-solving. W h i l e it is true that all attorneys were not the same in their approach to the problems of rationing, there was sufficient uniformity to justify a treatment of the attorneys as a homogeneous group, to justify a concept of the "legal mind." This is probably so because of the uniform education attorneys receive. However, there were some attorneys who were emotionally and intellectually laymen, and some laymen who had the emotional and intellectual characteristics of attorneys. T h e following pages will point up the factors in the attorneys' mental outlook which were most important in the formulation of the rationing rules. Legal Problems and Legal

Solutions

Many of the rationing problems and solutions were problems and solutions only to the attorneys. These "legal" problems would often arise as a result of an intensive analysis of the written rules either by an attorney in Washington or one in the field. Some field attorneys spent a good deal of time looking for errors of logic or of commission or omission with which to plague their harassed brethren in Washington. Often these "legal" problems were found a year or two after the program began. Seldom did they arise from actual behavior under the rules. Of course, sometimes they appeared because of actual difficulties in prosecuting a case in court or before a hearing commissioner, but often they did not. T h e non-legal rationing officials usually accepted the attorneys'

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statements and solutions of these "legal" problems. Some examples of legal problem-solving follow. T h e original fuel oil ration order provided that a person with satisfactory coal-burning equipment (standby) could not receive a fuel oil ration. Shortly after the program began, the attorneys thought of a possibility that was not covered. W h a t if a person destroyed his coal stove so that he could get a fuel oil ration? T o cover this situation, they amended the regulations to provide that a fuel oil ration obtained under that condition could be revoked. 24 It is impossible to guess why the attorneys thought anyone would destroy a standby when all they had to do was deny having one. No home was ever searched to determine the truthfulness of facts stated in a ration application. T h e attorneys seemed to feel that some people would destroy standbys so that they could cheat the nation without telling a lie. The truth is that the rule could have had no effect except to satisfy some unanswered question in the mind of the drafting attorney. T h e rationing officials would not object to such a rule because it was a "legal problem." They probably did not even know the rule was included in the regulations. A year and seven months later, in reviewing the fuel oil regulations, the attorneys decided that they had not completely covered the problem of destruction of standbys. The rules provided for revoking a fuel oil ration obtained by virtue of having destroyed a standby but did not allow the boards to deny such a ration in the first place. Consequently, the attorneys drafted another rule to cover that situation. 25 At the same time, they spelled out more completely just who had the power to revoke the fuel oil ration of a person who had destroyed a standby— namely, "the Washington Office, Regional Administrator, District Director or Board having jurisdiction." T h e sugar rationing regulations provided that sugar ration currency must be given up at the time the sugar was received or before. After the program had been in operation for over two years, someone decided that this rule created a legal problem. A person who received the sugar before he surrendered the stamps could not then surrender them without violating the ration order. T h a t is, not only was receiving the sugar before surrendering the stamps a violation, but also surrendering the stamps after receiving the sugar. It would seem that to most people the notion of violation for surrendering stamps after receiving the sugar assumes that the stamps are surrendered. Getting sugar without surrendering stamps at all would be another and more serious kind of violation. T h e sugar rationing regulations were amended to allow ration currency to be given up after receiving sugar, but this was not to "relieve the trans-

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feror or the transferee of the consequences of the failure to receive or surrender certificates or other evidences at the time required." 2 8 A similar problem in fuel oil rationing concerned delivering fuel oil after coupons had been illegally received in advance of delivery. Coupons could not be detached from a consumer's coupon sheet until after the oil had been delivered or at the time of delivery. T o detach coupons before delivery was called "pretailoring" and was illegal. T h e enforcem e n t attorneys, on the eve of a great enforcement drive against pretailoring, decided that a dealer who had pretailored coupons could not then deliver the oil he owed to the consumer for the pretailored coupons without further violating the order. Thus, if field enforcement officials got injunctions against pretailoring dealers, forbidding further violations of the ration order, the consumer could not get his oil. T h e solution they planned, and got adopted, was not so simple and direct as the one adopted by the sugar rationing attorneys. After a fuel oil dealer had been suspended or enjoined, the O P A district director could require him to file a listing of all pretailored accounts and the amounts due to each and to surrender to the district office ration currency equal to the total pretailored amount. T h e district director could then give the dealer permission to deliver the oil owed. T h e dealer then had to file a report supported by receipts showing the amount delivered to these pretailored accounts. T h e district director could approve the report and send it back to the dealer, who could then take it to the local board and get an exchange certificate equal to the amount reported and approved. 27 ( T h e dealer had surrendered all pretailored coupons to the district office and so had to be reimbursed with ration currency for this amount.) This procedure applied only to pretailoring dealers who had been caught (enjoined or suspended). Later, it was applied to all pretailoring dealers, whether or not they had been caught. 2 8 T h e reality of the "problem" and the merit of the "solution," as far as pretailoring dealers who had not been caught are concerned, can be tested by asking a few questions. After a dealer had illegally detached coupons in advance of delivery, why would he give himself up by reporting this fact to the O P A district office? H o w would the consumer be able to initiate the procedure (the amendment allowed either him or the dealer to do so), since he would not know about the coupons being detached in advance? W h a t would the district office do with a dealer who gave himself up in this way over one pretailored account? Actually, no dealer would avail himself of this elaborate "solution." It was a "solution" to a problem which existed only in the legal mind. T h e simple legal solution of the same problem in

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sugar rationing might have been adopted. T h e rule would then have stated that a dealer who pretailored could deliver the oil later but was not excused from the consequences of pretailoring. Inherited. Legal

Forms

T h e tools which the attorneys brought to the task of rationing were derived from the study of the law. Some of the situations which presented problems to the attorneys did so by analogy to legal forms. This kind of problem creation is best seen in the disputes which arose over signatures on applications. Each time there was a mass filing of applications, many applications were received without the applicants' signatures. And each time a heated discussion took place between the attorneys and the non-attorneys as to whether these applications should be returned for signature. T h e non-legal officials always won out in these discussions because they simply refused to ask the field to undertake such a tremendous task for reasons which to them were purely metaphysical. A good illustration of the influence of legal analogies on the attorneys' ability to solve large-scale regulatory problems occurred in fuel oil rationing in the summer of 1944. In order to reduce the boards' task of issuing several million fuel oil rations during the summer, the planners provided that the applicant, rather than the board clerk, should write the date on the stub of the coupon sheet. T h e date, rather than the usual date issued, would be the date received. Actually, the date was not needed at all, but the attorneys insisted on it. T h e attorneys agreed to this procedure on the condition that the coupon sheet could not be used (i.e., was not valid) unless the applicant entered the date he received it. A t the same time, the attorneys provided that the coupon sheet could not be used unless the applicant also signed it. T h e non-legal planning officials, interested in getting agreement for their 1944-45 reissuance program, did not analyze this legal compromise very carefully. As soon as the boards began to mail out the rations, the fuel oil rationing branch heard that many consumers were depositing their coupon sheets with their dealers without signatures and dates. Dealers began to inquire as to what procedure they should follow in such cases. They wanted permission to sign and date the sheets for the consumers rather than go to the expense and trouble of returning the sheets to the consumers for dating and signature. This became an important question to the fuel rationing officials and was discussed in several policy meetings. T h e non-legal fuel rationing officials wanted an interpretation issued to allow dealers to sign and date the sheets for the consumers. T h e chief counsel for fuel rationing said

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this could not be done. H e was later upheld by his superiors. H e wrote a memorandum to the fuel oil rationing branch chief saying that to allow dealers to sign and date the sheets would require an amendment, and he outlined what sort of amendment would be necessary. This memorandum is an excellent illustration of the legal mind at work in regulatory problem-solving. It is suggested that if such an amendment is to be made, it provide the following: ι . That any member of the consumer's family may sign the consumer's name and insert the date providing that the person signing so indicate on the sheet, as for example, "John Jones per Mary Jones." This should be permitted without any written authorization. 2. That a dealer with whom a coupon sheet is deposited may affix the name of the consumer provided: (a) He has been authorized in writing by the consumer to do so, such authorization to contain the serial number or numbers of the coupon sheet or sheets, the address of the consumer, and the address where uie ration is to be used, and including the date when the consumer received the coupon sheets from the Board so that that date may be placed on the coupon sheet by the dealer. (b) That the dealer be required to retain such written authorization in his files for a period of two years so that it will be available at all times for inspection. (c) That the dealer signing the consumer's name be likewise required to show that he is signing it as agent for the consumer as indicated in ( ι ) above. In this connection the name of the individual signing as agent must be shown rather than the name of a corporation or company. 29 Because this "solution" to the unsigned and undated coupon sheet " p r o b l e m " was put forward as the only legal possibility, and because the chief officials of fuel oil rationing at that time were extremely naive about legal "requirements," this "solution" was enacted into law two weeks later. 30 It would actually be easier for both the dealer and the consumer if the dealer mailed back the coupon sheets, which some of them probably did. T h e fuel oil rationing branch published in its industry letter a suggested authorization form. Dealers were advised to reproduce the form, enter all information such as serial numbers, addresses, etc., and mail the form to the consumer for his signature and the date the coupons were received, which the consumer unquestionably had forgotten by that time. W h e n the authorization form was returned to the dealer, he was to make the necessary entries on the coupon sheet and then attach the authorization form to the coupon sheet. All of this activity was about a date and a signature, neither of which had any ultimate importance for fuel oil rationing. T h e consumer's name and address were already on the coupon sheet, put there by the

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local board, and so there was no problem of identifying the coupon sheet. T h e date received had no significance whatsoever. Furthermore, should it be necessary to know anything about that coupon sheet at a later date, which was very unlikely, the local board had a record of the amount issued and the date the sheet was mailed. The whole "problem" was simply the result of the attorneys' notions of legal form and propriety. There is much ritual in the law that the government official does not have the time or the manpower to follow. Another example of the influence of inherited legal forms was the attorneys' readiness to rely on vague and general "standards of delegation." (This attitude was not confined solely to the attorneys.) T h e standards did not have to carry7 any instructive power; the most important thing was simply to have the standard. 'ITie boards were given authority to determine the applicant's "minimum needs" for fuel oil and whether the applicant needed more oil to avoid "undue and immediate hardship." T h e board was to accept only "a satisfactory reason" why the applicant's vehicle did not have tires on it when he purchased it. T h e board was to allow preferred mileage (for gasoline) to a person "necessary to the operation and functioning of an essential establishment." A consumer could can at home the amount of fruit "the Board deems to be reasonable." T h e district director was empowered to designate additional plants to be allowed to establish plant transportation committees "when such delegation will result in the conservation of gasoline." Fuel oil rations could be issued "for any necessary purpose not otherwise specified in this order." There were dozens more. T h e attorneys (and some others) appeared to regard these general standards as solutions to problems. Actually, vague and general terms hide problems rather than solve them. General standards are not good guides or instructions. OPA field offices wanted to be told what to do in very specific terms. Specific terms made their job easier. An instruction should answer rather than pose questions. These delegation standards are useful in law as a device for giving courts some basis for reviewing administrative decisions. They give the courts something to interpret, in other words. Consumer eligibility cases in rationing did not go into the courts. However, the standards gave the attorneys something to interpret either on appeal from lower decisions or on requests for interpretations. Some people have suggested that the attorneys used such general words and phrases in order to gain control over greater areas of rationing planning and field operations through their functions of interpreting the meaning of such words and phrases and handling appeals from field decisions made under such words and

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phrases. Perhaps a better explanation of the attorneys' frequent use of vague and general terms is their apparent belief in the actual meaningfulness of vague standards as controls of behavior. The Independent

Power of the Legal Rule

Most attorneys (and many non-attorneys) attributed to the published rule a power over human behavior independent of the social and psychological "determinants" of behavior. One gasoline rule will illustrate this attitude. A gasoline dealer affixed the coupons he received from consumers to gummed sheets, endorsed his name and address across the top of the gummed sheet, and exchanged these sheets of coupons at local boards for ration currency of a larger denomination. T h e dealer was not allowed to use coupons on bought, found, or stolen gummed sheets of coupons. As a practical matter, if he wanted to violate the regulations he would have to remove the coupons from illegally acquired gummed sheets of coupons and affix them to new gummed sheets with his own name and address endorsed across the top of the sheet. T o "prevent" a gasoline dealer from doing this, the enforcement attorneys had the gasoline rationing regulations amended to make it illegal to transfer coupons from one gummed sheet to another or to alter a gummed sheet of coupons in any way.31 As the rationale to the amendment stated, the enforcement attorneys believed that "the changes effected by this amendment will contribute to reducing thefts from filling stations. By making it a violation to use coupons removed from one coupon sheet to another it is hoped that dealers will hesitate to purchase stolen coupon sheets." Many rules were issued, at the insistence of attorneys, to "prevent" a person from violating another rule. Such rules were like saying, "You must not commit a crime, but if you feel like doing so you must remove yourself from the scene so that you cannot do it." The Power of the Written

Word

One characteristic of the legal mind with which everyone is familiar is the great care taken by attorneys in the choice of particular words. It is necessary for attorneys to select words with great care because certain words acquire a particular meaning to the courts, which their synonyms might not have. T h e rationing attorneys had a tendency to believe that care in the selection of words had an equal relevance in solving regulatory problems. W o r d s were carefully selected with an eye to public reaction as well as the reaction of the courts. Not only did the attorneys exaggerate the power of the published rule over human behavior, but also the power of the written word. Many heated discussions took place

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over the selection of a single word. (These discussions were not always with attorneys, of course.) O n e example will illustrate this exaggerated notion of the power of the written word. T h e original tire rationing regulations provided a table of camelback replenishment for retreaders. A retreader received a ration certificate from the car owner for retreading a certain size tire. T o replenish his stock of camelback, he surrendered this certificate to the camelback producer in exchange for an amount of camelback specified in the table for the size of tire designated on the certificate. This table did not provide for certain very large tires, and retreaders, therefore, refused to retread them because they took more camelback than the table allowed for replenishment. Consequently, the table was amended to provide replenishment for these large tires in the "amount necessary" to retread them. 32 T h e amendment did not provide for replenishment in the "amount used" but in the "amount necessary." T h e retreader was to attach to the certificate a statement showing what this amount was, and the camelback producer could then sell him that amount. T h e rationale shows what the drafting attorneys had in mind when they chose the words "amount necessary." " T h e words 'amount necessary' have been purposely used instead of 'amount used' as it was thought that this would prevent retreaders from wasting camelback by not permitting them to replenish their stock in the amount used." Abhorrence of an Indeterminate

World

Another characteristic of the legal mind is dislike of indeterminateness. T h e attorneys' insistence that the fuel oil coupon sheets be dated, discussed above, illustrates this point. T h e attorneys wanted precise points ( " 1 2 : 0 1 A.M.") when something began and ended. M a n y of the deadline problems discussed above resulted from this fear of indeterminateness. Even though the dates used did not correspond to reality, the attorneys wanted them on record in the rules. For example, when the 1944-45 fuel oil coupons were to be issued, the non-legal rationing officials wanted them to be valid as soon as the consumers received them. T h e fuel oil rationing attorney, however, felt driven by some inner compulsion to provide in the regulations that the coupons were good when received but not before June 1 , 1944. There was not a possible chance of a single coupon sheet being received by June 1 . A n example of this abhorrence of indeterminateness which involved both the rationing and the enforcement attorneys was the R - 1 1 9 8 report in fuel oil rationing. Fuel oil dealers were supposed to file a report of their inventories of oil and ration currency on form R - 1 1 9 8 as of

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October 1, 1944· They had until October 25, 1944 to file the report. M a n y did not file by October 25, and many reports were received as of a date later than October 1. Many dealers who did not measure their oil and count their coupons and ration bank balances on October 1 could not later report their conditions of that date because they did not keep daily records. T h e field asked for an extension both of the October 25 filing deadline and the date as of which the inventories were to be reported. This question was discussed all through October and November. T h e R-1198 report took up the major part of the planning time during those two months. T h e non-legal officials wanted the reports accepted as of any date selected by the dealer. T h e attorneys, especially the enforcement attorneys, did not want to allow the dealer to select the date. Finally, early in December, an amendment was issued which extended the filing deadline until December 31 and allowed the dealer to report his inventory as of either October 1 or December 16, but no dates in between. 33 Many reports had been received by the field as of other dates and many more such reports were received after this amendment was issued. T h e field offices did not want to return these reports to dealers and require new reports as of another date. Besides, the date on which the dealer took his inventory did not make one jot of difference to the success of fuel oil rationing. T h e non-legal officials spent another three weeks of very heated discussion with the attorneys, and finally got them to agree to accept reports already filed as of some date other than October 1 or December 16.34 This whole issue, which was the biggest issue in fuel oil rationing during 1944 and 1945, raged for a period of three months. Some inner force made the attorneys rebel at the idea of a dealer filing his inventory as of any date chosen by him between October 1 and December 16. Such a procedure would be too indeterminate. Refusal to Recognize

Illegality

Another characteristic of the legal mind, and one which contributed some difficult conditions to the rules, was refusal to recognize in the rules behavior contrary to the rules. In the gasoline rationing rule, discussed above, which prohibited a dealer from transferring coupons from one gummed sheet to another, there was a provision which allowed a dealer who had affixed coupons to the wrong gummed sheet by mistake to exchange that gummed sheet at the board for inventory coupons. T h e board was to issue to the dealer inventory coupons "equal in gallonage value to the gallonage value of any coupons on the sheet submitted which were not acquired in violation of any provision of Ration Order N o . 5C." If any board could have carried out such an instruction,

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it would never have been necessary to forbid the transfer of coupons from one gummed sheet to another, and, in fact, most of the flow-back mechanism could have been omitted. Actually, the board would pay no attention to that part of the rule unless the dealer voluntarily admitted that the coupons he was tendering had been stolen. The attorneys would argue, however, that even though the boards could not follow such an instruction to accept only legally acquired coupons, it was still necessary to put it in the rule. Otherwise, the rule would condone an illegality. Another example is taken from the fuel oil rationing regulations. Small fuel oil dealers affixed coupons to gummed sheets and exchanged these sheets at boards for exchange certificates. These exchange certificates were then surrendered by dealers to their suppliers in exchange for oil. Shortly after the program began, it occurred to the attorneys that a dealer might acquire coupons illegally, exchange the impure coupons for a pure exchange certificate, and then acquire oil with this "good" certificate. Therefore, they inserted into the rule governing the transferring of exchange certificates a proviso that the dealer could not exchange a certificate for fuel oil if the certificate was not acquired in exchange for legally acquired coupons or other ration evidences. Also, if the supplier knew the exchange certificate was not backed up with legally acquired ration currency he could not deliver the oil.33 Thus, although exchange certificates would continue to flow in the trade with the same ease and facility as money, the regulations did not recognize the flow of certificates with an illegal background. The attorneys had a strong dislike for any rationing activity that went on outside of the "legal" rules. They insisted on reviewing all material which went out from Washington. In the early days of rationing, Washington attorneys often informed field attorneys that only the regulations need be obeyed—that non-legal instructions were only suggestions. If a certain activity did not end by the deadline contained in the regulations, the attorneys would quickly draft a retroactive amendment "covering" the activity in the rules. It did not matter that the activity was of such a nature as to advantage everyone, and that, therefore, no one would challenge its continuation as being ultra vires. For example, fuel oil coupon credit made necessary because of delays in distributing coupons was supposed to end December 9, 1942. When that date went by, the field had to allow coupon credit to continue because coupons were not yet distributed and people had to have oil. An amendment was hastily drafted, issued, and made effective December 14, which allowed regional administrators, with Washington approval, to extend the coupon credit period until December 19.®® By the time the regional administrator got

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Washington approval, it would have been December 19. However, he already had Washington approval. The amendment was issued to "legalize" a de facto extension of coupon credit. The Psychological and the Legal

World

Perhaps the basic characteristic of legal attitudes was a tendency to minimize the importance of the social and psychological constitution of society and to think of society as being bound together by legal principles. Frequently, non-legal rationing officials would argue that a rule was not necessary because, under the situation, people would behave in the desired fashion without a rule. T o this argument, the attorney usually replied, "How do we know they will? What if someone does not behave in that fashion, what then?" Many people might think it unnecessary to issue a rule forbidding the destruction of a usable coal stove in order to acquire eligibility for fuel oil or a fuel oil stove because economic motives would effectively prevent people from doing this. The attorney, however, would argue that someone might do it in spite of economics, and so a rule is necessary to control this atypical person. Likewise, most people would expect industrial users of food who could not receive allotments of ration currency until they had used up their original inventories at the rate prescribed by OPA to reduce their rate of use accordingly. Their desire to keep operating would induce them to do so. To many attorneys, however, this psychological control was not sufficient. There might be a few industrial users who would use their inventories too fast in spite of this control. Consequently, a rule was included in the regulations which forbade an industrial user to use more sugar (or other rationed foods) during an allotment period than his allotment allowed.37 The tendency to overlook factors of human behavior or incorrectly to evaluate them is illustrated by the following example. The enforcement attorneys argued for a year for compulsory filing of inventory reports by fuel oil dealers, beginning in the summer of 1943. A change in the controlling fuel rationing officials in the following summer gave them their opportunity to get such a compulsory report adopted, but not until they had forced the issue through the deputy administrator for rationing. The report was the R-1198 report, mentioned before. It required the fuel oil dealer to show his inventory and the total value of his ration evidences on hand or in his bank account as of October 1. It was unlawful for a dealer to have more or less oil and ration evidences than his allowable inventory. The allowable inventory was a figure which equalled his total storage capacity. If a dealer had more oil plus evidences

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than his allowable inventory, he had an overage. T h e enforcement attorneys wanted a compulsory filing of an inventory report chiefly to recapture the dealers' overages, which they felt was the chief cause of outof-balance conditions among dealers. A year before the R - 1 1 9 8 inventan, report was inaugurated, the fuel oil rationing branch had issued an amendment which required dealers to surrender overages to O P A . T h e reasoning of the enforcement attorneys with regard to the compulsory inventory report, based on their assumptions about human behavior, is set down in a document written in rebuttal of certain sections of the Dean-Vass fuel oil rationing history. W e contended that the causes which contributed to out-of-balance conditions on the whole were more preponderant on the side of excesses than on the shortage side. . . . W e felt tnat the dangers to the Rationing Program from excess evidences were far more serious than shortages of evidences. . . . W e contended that the proposal of the Rationing Division that an amendment [issued the previous year] requiring the surrender of excess evidences to the Board did not adequately take care of the need for the recapture of excess evidences. Under this plan the surrender of excess evidences was obviously purely on a voluntary basis and not a device for the recovery of such excesses. W e contended that the requirement for the surrender of excess evidences must be made a part of a compulsory reporting requirement so that the report and surrender of excess evidences would be a simultaneous requirement. 38 T h e validity of this argument can be tested by a ven' simple analysis of the probable behavior of fuel oil dealers in such a situation. Let us take a strictly honest dealer, a dealer who is basically honest but canny, and a dishonest dealer. T h e strictly honest dealer who had an excess of evidences would report and surrender them. Such a dealer would be glad to get rid of them to avoid the appearance of evil. H e would already have surrendered his excess evidences to the board as required by the amendment the previous year unless he did not know about this requirement. If such a dealer surrendered excess evidences with his R - 1 1 9 8 report, nothing would be gained for the program because he would never have used those evidences in a wicked manner, anyway. T h e honest but canny dealer, although he would not use his excess evidences for black market operations, would not report them to O P A because this would involve him in possible questioning and trouble. T h e simplest thing to do with the excess evidences was to b u m them. T h e n the dealer would have no excess and would not, therefore, be in violation for being out of balance with his allowable inventory. T h e honest but canny dealer would figure: " T h e r e is no use getting involved with the government; you can never tell about those fellows." T h e dishonest dealer would simply not report

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his excess evidences. He would quickly get rid of fuel oil on the black market equal to the excess or hide his excess evidences. T h e fuel oil rationing branch got reports from the district offices which showed the number of R - 1 1 9 8 forms being filed, the amount of excess reported, etc. T h e amount of excess ration evidences recovered by the compulsory inventory report, R - 1 1 9 8 , was negligible. T h e attorneys' unwillingness to accept the ready-made psychological uniformities in lieu of the artificial uniformity of a legal rule seems to be based upon a distorted idea of human behavior. T h e attorney will admit that most people may be motivated to act in the desired way, but he will point out that a few people may not act in this way. These few people must be compelled to act in the desired way to achieve complete uniformity. Hence, a legal rule must be issued which compels everyone to act in the desired manner. However, the mere publication of a legal rule does not necessarily influence behavior. T h e legal rule is, itself, only another motivating influence in a complex of influences; it is not a determinant. T o a person who was willing to destroy a coal stove during a period of war-time scarcity in order to get a fuel oil ration, a rule which says he cannot get a fuel oil ration under such circumstances is not going to have much influence. Such a person knows he will never be found out. Even more important, however, is the fact that such a person would not go to the trouble of destroying the stove; he would simply deny that he had it. T h e rationing rules were made complex partly because of a search for the last possibility. T h i s "perfectionism" cannot be attributed to the attorneys alone, but a good deal of it must be. As one very intelligent attorney far up the legal hierarchy said, an attorney is trained to look for the remote possibility. W h e n a document is presented to him, he does not ask what it does but what it fails to do. T h e attorney is trained to draft documents (contracts, wills, etc.) which cover every contingency. As some procedures analysts in the rationing executive office used to say, " W e spend 95 per cent of our time rationing 5 per cent of the people." This desire for complete coverage produces numerous difficulties in the task of large-scale regulation. N o t only does it complicate rules and procedures, but it sometimes forces changes in the behavior of the vast majority of the people because of the recalcitrance or eccentricity of a very small number. For example, most dealers kept records ample for the purposes of O P A , but because of a careless few, record-keeping requirements were spelled out in the rules which forced many dealers to make certain changes in their record-keeping systems. T h e complications

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in rationing forms were nearly always due to the desire to cover the last possible case. Preferably, the government official should be satisfied with a record which is statistically good. He should accept the social and psychological uniformities wherever he can. The issuance of a legal rule to cover the few deviations from this pattern frequently does not achieve any greater uniformities but only makes it possible to punish the few deviations if they are caught. There should be no place in the emotions of a government official for revenge. Deviations (i.e., "violations") should have only one meaning to the government official: to what extent do they jeopardize the general pattern of uniformity. Penalties should be used for the purpose of inducing compliance (uniformity) rather than to punish, and there are often better ways of inducing compliance or uniformity. Administrators should always remember they are dealing with human behavior—not with the ten commandments or any other set of "fixed and indisputable principles." A knowledge of human psychology is more important than knowledge of the law. RATIONALIZATIONS AND VINDICATIVENESS The reasons given for a rationing action were in many ways as important as the action itself. T h e public was often more interested in the reasons given for a program change or in the way the program change was conceptualized (rationalized) than in the effects of the program change. This was so partly because very often the effects of a program change were not concretely apparent. Since the individual could not relate the program change to his own particular case he could only form an opinion on the reasons given for the change. An interesting example was the reaction to the change in the children's allowance in fuel oil rationing, made in the summer of 1944. The original fuel oil rationing regulations provided for the issuance of all house heating fuel oil rations according to a formula. If the applicant had children under four years of age in the house, he received a fixed small amount in addition to that allowed by the formula. The formula was developed for houses with central heating equipment (furnaces). It allowed too much oil for houses heated by space heaters (stoves). In the summer of 1944, the fuel rationing officials changed the method of determining rations for space heaters in order to reduce the issuance of such rations. They provided a table which showed the maximum gallonage allowable (ceiling) for any number of square feet of floor area to be heated. The ceilings in this table (Table I X ) were generous, and boards were instructed, and expected, to issue rations considerably below these

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ceilings. The board was to determine the applicant's minimum needs under the ceilings. The formal children's allowance was abolished for homes heated by space heaters. The boards were instructed, however, to take into consideration the existence of small children in the house when figuring the applicant's minimum needs. Thus, the existence of small children in the house would actually be reflected in the size of the ration issued although that was not formally recognized in the rules. The formal "abolition" of the children's allowance brought considerable criticism of the rationing rules. Field officials found it impossible to satisfy the public on this point, and the formal children's allowance was later reinstalled. The size of the ration was not in issue since this was left to the boards' discretion in determining the applicant's minimum needs. A board, in accurately determining an applicant's minimum needs, would be bound to take into consideration the existence of small children in the house. To determine the applicant's minimum needs and then to add a fixed allowance for children was, logically, to give the applicant more than he needed, and boards would not do this. After the fixed children's allowance was reinstated in the rules, boards would simply determine the applicant's minimum needs at a lower gallonage figure and then add the fixed children's allowance. The results in terms of gallons issued would be the same with or without a formal children's allowance. However, the rule which provided for the addition of a fixed children's allowance was easier to rationalize to the public which felt that to disregard the existence of small children in the house was wrong. The fact that the reasons or principles behind an action were extremely important to the public regardless of the effects of the action induced the rationing officials to place great emphasis on the justifiability of a rule even though the rule was not procedurally implemented. There were many rules in the rationing regulations which could have had little effect on human behavior but which were easily justified and which helped to justify the whole program. The original rule governing the eligibility of doctors and ministers for new tires required them only to use their automobiles "principally" in the course of their medical and ministerial work. Because of public criticism that ministers and doctors were using their cars for personal reasons, the regulations were amended to require them to use their cars "exclusively" in the course of their ministerial and medical work.39 Although this rule probably did not change the driving habits of doctors and ministers, it could be used to quiet the criticism. Because of public reaction to the reasons given for official action, the rationing officials constantly sought acceptable reasons for their rules.

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Finding the proper basis for official action was an important part of the rationing regulatory process. When Christian Science practitioners were made eligible for preferred mileage, this was justified because of the importance of their religious duties. They were classified with ministers. If this extension of preferred eligibility had been justified because of the importance of the healing work done by Christian Science practitioners, you may be sure that various other healing professions to which preferred eligibility was not extended would have been extremely critical and would have argued that fair play demanded that preferred eligibility also be extended to them. These healing professions did not object to the extension of preferred eligibility to Christian Science practitioners as ministers, but they would have objected if preferred eligibility had been extended to Christian Scicncc practitioners as healers. Officials of the tire rationing branch felt that the way they had conceptualized the tire eligibility rules was the most important aspect of the tire rationing program. The tire eligibility rules included an extremely large number of groups; they covered almost everyone. However, these groups were rated in the order of their importance, from the most important to the least. Boards were given quotas of tires each month. They could not issue more tire certificates than their quotas allowed. The boards were told to approve applications with the highest ratings on the eligibility list first. If the board's quota was not sufficient for it to issue tires on all approved applications during the month, applicants with low ratings on the eligibility list could not get tires. Whenever a person who could not get a tire complained to Washington about this fact, tire rationing officials could reply to him saying that they thought his activities were important and had in fact made those activities eligible for new tires, but unfortunately the board did not have sufficient quota to take care of all eligible applicants. This was the official answer of the tire rationing branch to disgruntled citizens who complained about not receiving tire certificates from local boards. It was much easier to blame the situation on the tire shortage than to tell the applicant that he was not important to the war effort or to the public welfare. The importance of social rationalization to the rationing officials is further illustrated by the deer hunting case in gasoline rationing. The original planners of the gasoline rationing program probably had not completely conceptualized the "A" ration. They believed that this small original issuance would reduce board work load by taking care of the needs of a very large number of car owners who would not, therefore,

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reapply at the boards for supplemental rations "tailored" to individual need. Holders of " A " rations felt that they should be allowed to use the gasoline represented by those rations in any way they wanted. Late in 1943, there was a strong drive, with congressional backing, to have the gasoline rules changed to allow car owners to pool their " A " rations for the purpose of hunting deer. However, the idea that the large amount of gasoline represented by " A " rations could be used with total disregard for national needs and the war effort was an idea that was not in harmony with the ideas used to rationalize the careful distribution of gasoline through the issuance of supplemental " B " and " C " rations. Therefore, the gasoline rationing officials were forced to develop a rationalization of the basic " A " ration more in harmony with the careful distribution of gasoline through supplemental rations and one which would explain their rejection of the deer hunting proposal. In a statement explaining their reasons for rejecting the deer hunting proposal, they said: " I t is frequently incorrectly stated that the A ration is for pleasure driving. It is for personal necessity driving which may or may not leave a portion available for things that are in the nature of pleasure." 40 Thus, the " A " ration, starting out on the grounds of administrative convenience, ended up as a "personal necessity" ration. Thus, all gasoline rations were harmonized by the rationalizing principle of necessitous use, and acceptance of the gasoline rationing program was strengthened thereby. T h e preparations planned for the final disposition of the deer hunting case illustrate very well the rationing officials' cognizance of the problem of social rationalization. These preparations were outlined in a memorandum from the division director to the gasoline rationing branch chief, dated November 8 , 1 9 4 3 . Pooling of A Coupons for Deer Hunting I have returned to you the draft of your memorandum on this subject together with several telegrams and letters which need to be answered. The following steps need to be taken: 1. Will you have your memorandum, together with my suggestions, redrafted as a letter to be used in replying to these telegrams and letters. (Of course, Senator—'s letter will need a little special attention.) This letter should be cleared with McConnell [congressional liaison man] since it will obviously be made public. I suggest that you ask him to release the letter to the press since it may be better for the letter to be released by us rather than by one of our recipients, but that is something for McConnell to decide. The letter should also be cleared with Houston [the deputy administrator]. If the letter is not ready until after I leave town, will you please handle the clearance with Houston?

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2. I shall talk with [the Deputy Petroleum Adminstrator] to be sure that he will not put out any press release which might cut the ground out from under us. 3. A copy of the letter should go to Russ Paul [the field section chief] so that he can send it to the field. T h e urgent search for acceptable reasons for official action is also illustrated by the rationales which accompanied rationing amendments. T h e rationale was a formal statement of the reasons for an amendment. It was frequently the basis of the explanation for an official action given to the public in the O P A press release. T h e differences between socially acceptable reasons found in rationales and the actual reasons for official action were often very great. F o r some reason, admission of error was TaTely regarded as an acceptable explanation for action, and rationales accompanying amendments which corrected past planning errors rarely admitted to past error. A n example of a rationale concealing a previous planning error is one relating to the consumer-dealer oil exchange rule in fuel oil rationing. This rule was first installed in December of 1942. 4 1 It allowed dealers and consumers to exchange equal amounts of the same grade of fuel oil within twenty-four hours. This rule was obviously not a solution to a problem. T h e situation where the problem of exchange would arise was when a dealer delivered the wrong grade of oil and the consumer wanted to exchange it for the right grade. Almost two years later, this faulty rule was changed and the problem of exchanges finally solved. 42 T h e rationale accompanying the amendment which made sense out of the oil exchange rule did not explain the amendment as a correction of a previous planning error. It stated: "Industry experience has demonstrated that there is no need to restrict the exchange to the same grade of fuel oil. W h i l e the Order did not state that the delivery of the excess quantity in an unequal exchange was a separate transfer, that was its intent." One of the most interesting characteristics of the rationing officials (and also perhaps of other government officials) was their tendency to refuse to admit that they were ever wrong. Thousands and thousands of letters from complaining or critical citizens were answered by patient explanations which pointed out how wrong or misinformed or confused were the writers of the letters and how right were the rationing officials. Although the rationing officials could become gradually persuaded that they were in error, their immediate reaction to criticism was to find reasons proving they were right. This normal, human re-

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action was particularly interesting in relation to congressional criticism or investigations. W h e n a congressional investigation was in the offing, the rationing officials tried to foresee what the committee would be likely to criticize and to prepare in advance the best possible answers to all of these criticisms. T h i s reaction is illustrated by the following memorandum from a division director to one of his branch chiefs, dated M a r c h 3°' 1944· I note in the Congressional Record, covering Wednesday, March 22, that the Committee on Petroleum will begin hearings on gasoline rationing within the next four or five days. In preparation of this, I suggest you [and two other members of the branch] sit down and build a list of the matters which either [the deputy administrator for rationing] or I can use in our testimony. W h e n you have this list prepared, I suggest that we discuss it and then put specific people to work gathering whatever additional information is necessary. W h e n an investigating committee made its report, rationing personnel were often immediately put to work preparing answers to the report — t h a t is, correcting the confusions, false impressions, and misunderstandings of the Congressmen. Answers to reports of congressional investigating committees were prepared even before the reports were prepared and were held in readiness to refute the reports when they appeared. This fact is illustrated by the following memorandum from a division director to his three branch chiefs, dated January 14, 1943. It appears that the final report of the House Committee on Small Business may be forthcoming shortly. Attached are cxccrpts from testimony offered the Committee on rationed items within your jurisdiction, which indicate the rationing questions likely to be raised in the Committee's report. [The deputy administrator for rationing] has requested that you read this material carefully and have prepared for me a memorandum on the issues raised which can serve as the basis for our reply to the report when issued. T h e strong propensity of the rationing officials to find a " g o o d " reason for whatever they did had both a social and a psychological basis. T h e public was interested in the reasons for actions and responded to those reasons in a positive manner. Since the rationing officials were trying to direct human behavior into uniform and desirable patterns, the fact that public reaction was affected by the reasons given for official action became a factor in regulatory problem-solving—a factor which had to be considered along with other factors that influence or control human response. Therefore, the planners spent a considerable portion of their time in finding " g o o d " reasons for official actions. Press releases

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were cleared with as m u c h care as any other type of rationing document. In fact, t h e non-legal rationing officials were more interested in the press release than they were in t h e rationing a m e n d m e n t . Besides the social necessity for giving careful consideration to reasons for official actions, rationalization is a well-understood psychological process. Popular reasons make popular actions which make popular officials, and everyone except a misanthrope likes to be popular. Failure to acceptably rationalize an action exposes officials to the charge of being "arbitrary." "Arbitrariness" means "failing to give acceptable reasons for action." Furthermore, pride of authorship makes it virtually impossible for a person to a d m i t that any of his offspring or creations is less t h a n perfect. T h e rationing officials shared with all other persons these very h u m a n emotions, and in describing tlicm no special criticism of the rationing officials is intended. Official vindica ti veness was also related to the tendency to conceptualize the programs and the problem situations. T h e rationing officials' thinking about rationing was controlled to some extent by conceptual forms which tended to exclude new ideas from official cognizance. Although officials must find socially acceptable reasons for official action, the strong tendency toward vindicativeness, the tendency immediately to find an "answer" to any criticism of a rule or plan or policy, delayed many needed and important changes in the rules. All the persons who m a d e proposals for changes in the rules were not confused or bewildered or ignorant. T h e program inflexibility which results from official vindicativeness is probably responsible for the fact that so many of the changes in the direction of official thinking in administrative agencies have to be brought about by revolutionary means. This vindicativeness may be the cause of the numerous "house cleanings" t h a t one hears about. Strong and catastrophic congressional action is frequently needed and used as a substitute for an open official mind. It may very well be that the most important function of Congress is to play the role of dynamite in the administrative thinking process. PROTECTION OF THE

INDIVIDUAL

National regulation is an attempt to promote t h e good of all. It involves, to some extent, a sacrifice of individual good. An important part of the administrative process is the prevention of unnecessary sacrifices of individual goods. Protection of the individual as an administrative problem can be viewed from the standpoint of the individual—that is, to what extent he feels oppressed by the rules—or it can be viewed from the standpoint of the conformance of the administrative process

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to certain defined norms or ideas as to what constitutes protection of the individual. T h e latter approach to the problem is largely formal and institutionalized. In rationing, protection of the individual, to the extent that it was consciously considered as a part of the administrative problem, was sought in the adoption of procedural formalisms. These procedural formalisms were largely inherited from legal history, and, indeed, protection of the individual was generally regarded as a legal problem. Since protection of the individual meant to rationing officials the adoption of certain procedural "requirements," the idea grew, particularly among attorneys, that one of the rationing attorneys' roles and one of their great contributions was the protection of the individual against "arbitrary, discriminatory, capricious" administrative action on the part of the rationing officials. In discharging this "role," the attorneys were largely influenced by their inherited notions of procedural formalism. Thus they provided a fairly elaborate procedure, designed to guarantee a fair trial in the matter of the issuance of rationing suspension orders against violators of the industry provisions of the regulations. 43 T h e procedure for issuing rationing suspension orders against members of the industry was admittedly adopted from the recommendations of the Attorney General's Committee on Administrative Procedure. It provided, in its final form, for notice of hearing seven days before the hearing, for a hearing under an impartial hearing commissioner, for a statement of the charges, for rules of evidence, for representation by counsel, for the appearance and cross-examination of witnesses, for appeals from the hearing commissioner's orders, for stays, postponements, amendments, etc. The attorneys also provided for appeals from the decisions of local boards or district offices.44 W i t h i n thirty days of the local board's decision, an applicant could file an appeal at the district office. Under the same time limitation, he could appeal from the district office to the regional office and finally to the Washington office. T h e office appealed to could require additional information from the appellant and, at the request of the appellant, order a hearing on the appeal. In certain cases where the rules allowed boards or field offices to revoke rations or some other privilege conferred under the regulations, the attorneys surrounded the revocation power with procedural requirements similar to those for issuing suspension orders. T o prevent the granting of exceptions to the regulations by the Washington officials from being discriminatory, the attorneys devised a procedure to govern the granting of "administrative exceptions." This procedure allowed administrative exceptions to be

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granted by Washington only in matters of procedure. Changes in rules relating to eligibility for ration currency could not be made by administrative exceptions. T h e y had to be made by amendment (or interpretation). T h e procedure governing the issuance of administrative exceptions also provided that they could only be granted in cases where the rule-makers were willing to grant the same exceptions to all persons similarly situated. T h e procedural formalisms which were adopted as protections for the individual were for the most part applied to the individual only as a producer. T h e y were protections against arbitrary or unauthorized interference with the conduct of a business or an occupation. T h e elaborate suspension order procedure was adopted as a protection for business firms. T h e procedural formalism thrown around the power to revoke rations was not applied to all types of rations. A procedure similar to the suspension order procedure governed the revocation of supplemental gasoline rations. Supplemental gasoline rations were issued for the conduct of an occupation or a business. Before Procedural Regulation N o . 4 was issued, each ration order contained a similar procedure for issuing suspension orders which governed all suspensions including the revocation of consumer rations. W h e n Procedural Regulation No. 4 was issued, the provisions relating to issuance of suspension orders for industry violations were removed from the various ration orders. T h e general power to review and revoke consumer rations was continued in the various ration orders. In the fuel oil rationing regulations, when the procedural requirements for issuing suspension orders were withdrawn, the power to revoke consumer rations was continued without procedural formalism of any kind. T h e revoking office "shall receive and consider any evidence presented by the holder of the ration and may require him to appear for examination and to produce such witnesses or evidence as such office may deem material." T h e revocation order was immediately effective, and the ration had to be returned within forty-eight hours. Most fuel oil rations had very little significance in the conduct of a business or an occupation. In contrast to this lack of procedural formalism governing the revocation of consumer rations were the procedural safeguards which surrounded an O P A district director's power to withdraw from a fuel oil dealer the right to accept consumer coupon sheets for deposit. M a n y consumers deposited their fuel oil coupon sheets with their dealers. T o insure proper use of these deposited coupon sheets by dealers, various rules governing the care and use of them were established. T h e O P A district director could issue to a dealer who violated any of these rules an order withdraw-

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ing the privilege of accepting consumer coupon sheets for deposit. Since consumers wanted to deposit their coupon sheets, a dealer who could not accept them would lose customers. The amendment which established the power of the district director to withdraw the privilege of accepting coupon sheets for deposit surrounded that power with procedural requirements similar to those governing the issuance of suspension orders.4® Even the appeals procedure, although in theory it applied to all rationing "adjudication," in practice worked chiefly as a protection against unauthorized interference with the conduct of a business or occupation. T h e normal situation where a consumer might wish to appeal a denial of a ration was in the category of special or additional rations. When some unusual situation arose, such as illness, the consumer would want the additional ration immediately. If he were denied the ration, an appeal would take weeks or even months. By the time he got a decision on the appeal, the special situation which created his need for the additional ration would have passed. Appeals against the denial of hardship rations in fuel oil rationing begun in May when the consumer needed the oil were often not resolved until the following September when the consumer had his entire ration for the coming year and no longer needed the oil to avoid hardship. On the other hand, a dealer who needed his inventory restored or a person who needed additional gasoline (for occupational use) would continue to have those needs indefinitely, and a successful appeal, even though it took three months, would still be of advantage to the dealer or the applicant for the supplemental gasoline ration. It is also important to note that appeals were rarely successful. As a practical matter, it was far more important for the office to which the appeal was made to stay on friendly relations with the office appealed from than to make one disgruntled citizen happy. Lower levels were overruled only in extremely rare cases of flagrant misinterpretation of the rules or flagrant abuse of discretion. The appeals procedure was probably less a device for protecting the individual than for achieving uniformity in interpretation of the law. The rationing program was too short-lived for this latter role of appeals to be at all important. The tendency to think of the individual who must be protected as a producer rather than a consumer, a money-maker rather than a money spender, can also be seen in the development of the special planning processes described in a previous chapter. Those special processes were procedural formalisms which grew up around the making of rules and decisions in certain areas where business or occupational values could be vitally affected by the decisions. These special planning processes

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(gasoline eligibility rulings, food adjustment policy creation, and processed foods point-setting) were not adopted as a result of any theories of administrative procedures, but arose spontaneously as a manifestation of the superior emphasis placed subconciously on business and occupational values over consumer values. These special processes were not the result of agitation by the attorneys. In fact, they were in even case initiated by the non-legal members of the rationing department. If protection of the individual, as a problem of administration, is regarded from the standpoint of the individual rather than from the standpoint of the correspondence of administrative processes to historically derived norms of procedure, much more can be said and done about it. If we regard the problem of the protection of the individual from the standpoint of the individual, we will rely much less on historically derived concepts, difficult or impossible of interpretation and application, such as the notions of discrimination and arbitrariness. Whatever those two notions mean, they do not exhaust the possibilities of the individual's suffering under administrative rules. The individual is only truly protected when he does not feel the rules to be oppressive, or when whatever individual oppression the rules involve can be rationally demonstrated as necessary or a lesser of evils. T h e procedural formalisms inherited from the history of legal treatment of the problem of protecting an individual applied to a small number of individuals in a small number of circumstances. If we conceive of the oppressiveness of rules as being capable of being added up into a total, the procedural formalisms adopted to solve the problem of protection of the individual did not begin to scratch the surface. T h e institutional treatment of the problem through historically derived notions left the rationing planners, particularly the attorneys, incapable of seeing and appreciating the greater part of individual oppression of which the rules were capable. T h e attorneys' insistence upon the application of legal forms to regulator)' problem-solving, their assumption of society as purely moral, their strong desire for determinatencss, and other legal attitudes, actually created infinitely more individual oppression through the rules than their procedural formalisms ever prevented. T h e attorneys, however, did not regard protection against unnecessary trips to a local board as protection of the individual. Nor did many of the other rationing officials. When, in order to satisfy the requirements of legal propriety, dealers who accepted coupon sheets for deposit 011 which consumers had not written their names and the date were required to reproduce forms asking for considerable information about each coupon sheet and mail them to the consumer for completion or else mail back

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the coupon sheets, the dealers and the consumers both, as individuals, would have been fortunate to have had someone in Washington protecting them from oppressive rules. W h e n a fuel oil dealer who had removed coupons from a coupon sheet in advance of delivery of the oil was required, at the insistence of the enforcement attorneys, to go through an elaborate procedure involving the compilation of much information, three mail communications with the district office, the obtaining of individual receipts from consumers, and a final bail-out at the local board, that dealer would have been a much happier man had there been someone in Washington protecting him, as an individual, from needlessly oppressive rules. T h e individuals who, for the first year and one half of rationing made a trip to the local boards each time they were to receive coupons or ration currency because enforcement attorneys would not allow ration currency to be sent through the mails except by registered mail, would have been fortunate indeed had there been ideas in Washington about the protection of the individual other than inherited ideas of procedural formalism. T h e oppressiveness of the rationing rules was not due to the bad wills of the planners; they had no sadistic desire to be oppressive. T h e oppressiveness of the rationing rules for the most part was a result of the regulatorv techniques adopted and the attitudes and habits of thought of the planners. T h e impedimenta technique of regulation has an oppressive cffcct on many individuals. It is a device for automatically measuring the degree of need by the degree of difficulty of overcoming impediments or obstacles to the satisfaction of that need. T h e requirement that a person who claimed to have lost his ration book had to wait thirty days before receiving a replacement book, while it discouraged many frivolous applications, and while many applicants did not come back at the end of the thirty-day period, was a real hardship, an oppression, upon those individuals who had really lost their books. T h e later removal of this thirty-day impediment was not motivated by inherited legal notions of the protection of the individual, but by the strong feeling on the part of all the rationing officials involved, both attorneys and nonattorneys, that it was unreasonably oppressive to the individuals who had really lost their books. Although the impedimenta device is oppressive upon individuals, it is sometimes the most effective device which can be used in a situation. T h e individual is protected from the unnecessary oppressions of impedimenta regulation not by inherited notions of procedural formalism or the requirements of "due process," but by official skill in applying the impedimenta technique. Deadlines unnecessarily applied resulted in more oppression than procedural safeguards

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thrown around the power to revoke rations ever prevented. Deadlines in rationing were incorrectly applied at least half the time. T h e rationing attorneys were the greatest advocates of deadlines because of the strong need thev felt for finiteness. A rule which required an industrial user of food to file an inventory statement by a certain date or else to get no further allotments of food (and hence go out of business) theoretically put people out of business without a hearing or a procedural safeguard of any kind, simply because of the very human tendency to procrastinate. T h e individual can be protected from the oppressiveness of deadline requirements only by official understanding of the nature and use of the deadline technique. T h e administrative technique of regulation, involving as it does the rather automatic application of various human motivations as sanctions for securing desired uniformities of behavior, can result in individual oppressions so subtle that the clumsy detectors of the legal apparatus for protection of the individual cannot even discern them. The technique of debiting or reducing a sugar wholesaler's ration bank account because one of his dealers had accepted counterfeit coupons, which he might not have known or been able to know were counterfeit, successfully stopped the dealer's practice of buying counterfeit coupons to make up inventory deficits, but it also reduced the money-making power of sugar (and gasoline) dealers who received counterfeit coupons from customers without knowing it. Although many rationing officials felt that this result of the debiting rules was unnecessarily oppressive on individual dealers, the enforcement attorneys who designed the debiting procedure insisted (and perhaps rightly so) that this sacrifice of the individual was justified by the public interest in stamping out counterfeiting. One of the big issues between the enforcement attorneys and the rationing officials (with the rationing attorneys vacillating in between) was that the enforcement attorneys, to make the job of enforcement easier, wanted provisions regulating individuals which the rationing officials felt were unnecessarily oppressive. One of the big issues between the rationing officials and attorneys generally, both enforcement and rationing attorneys, was that the attorneys' unwillingness to accept preexisting behavior uniformities resulted in rules which changed the practices of many individuals a little bit in order to prevent, theoretically, the deviations of a very small number of individuals. T h e regulation of the one per cent harnesses everybody in a strange yoke of law, and, although the disruption of normal practice may be slight, what was yesterday freedom becomes today a national command, and the total individual experience of oppression is thereby increased.

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Many harsh rules were adopted to make the task of administration easier. As was said before, the big issue between the enforcement attorneys and the rationing officials was the extent to which normal practices of individuals should be changed simply to ease the task of enforcement. Administrative feasibility as a guide to administrative decision is by its very nature a producer of individual oppressions. Ideal justice would deal perfectly fairly with everyone, oppressing no one. Ideal justice, however, cannot be realized by human beings, among other reasons, because it is not administratively feasible. Only rough justice can be achieved, and this means no justice for some individuals. Administrative feasibility is a sacrifice of what is "right" to what is expedient. Because it was not feasible to allow all members of the trade to open ration bank accounts (the banks could not handle all the accounts and O P A did not have the money to pay for them ) the number of ration bank accounts had to be limited—that is, of all the people who wanted to open accounts, many had to be prevented from doing so. T h e rationing officials, including the attorneys, decided to allow only the large firms to open bank accounts. Size generally was measured in terms of dollar revenue, and the cut-off point was moved up to that level of dollar revenue which would limit the number of accounts opened to the number which could feasibly be handled. It did not even occur to the rationing officials, including the attorneys, to limit the number of accounts by allowing only the small firms to open accounts—that is, by cutting off the top rather than by cutting off the bottom. No amount of procedural safeguards could have protected the small firms from that automatic and uncritical selection of the large firms for favorable treatment with regard to ration banking privileges. T h e idea of allowing only the small firms to open bank accounts was never mentioned, never whispered, and never thought. No amount of procedural safeguards could protect the individual from the fact that pressure from organized groups had more changeinducing power or persuasiveness than individual demands. Demands for changes in the eligibility rules from ordinary individual citizens were not even considered by the gasoline eligibility committee, composed half of attorneys, because "in the absence of significant protest it is not necessary for us to consider the merits of the case." Thousands and thousands of individual pleas received in Washington during the course of rationing were answered by correspondence clerks, often with form paragraphs which did not answer any individual's letter well. It was correspondence from the important organizations such as the Farmers Union which received the agency's serious consideration and perhaps even the

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consideration of Congress or the part). T h e individual consumer got more consideration for his point of view, and hence protection, through writing to his Congressman than he got through the rationing appeals procedure. W h e n a Congressman transmitted an individual's complaint of discriminator)· or arbitrar)· treatment by a board or a district office, that individual's complaint was carefully investigated and improper local action soon rectified. Generally speaking, the individual was not badly treated under rationing. H e was protected fairly well. This protection did not come through inherited procedural formalisms but through the fact that the rationing officials did not want to mistreat individuals if they could avoid it. W h e n rationing attorneys refused to clear some action because it was oppressive on the individual (in their terminology, discriminatory or arbitrary), the issue was not whether the non-legal rationing officials should be allowed to oppress the individual but as to whether the proposed action was in fact oppressive (arbitrary or discriminatory ) or unnecessarily so. W h e n anyone pointed out to a rationing official that an action was unduly oppressive on the individual, he was only too glad to change the action if he agreed that it was in fact unduly oppressive. However, when he disagreed and an issue arose, there was no reason for thinking that an attorney's judgment of what constituted oppression was better than that of the layman. There is nothing in the study of the law which particularly enables a person to detect the oppressive characteristics of a plan. There has been no logic devised which enables one to reason from premises to the conclusion of oppression. Oppression is a fact. There is nothing in the study of legal cases, with their fugitive and unrelated bits of social and psychological information, which would especially equip an attorney to discern the presence of, or the probable results of, the fact of oppression. On the other hand, the non-legal organization for rationing, and the fact of the non-legal rationing official's responsibility for the impact of his program on the public, made the non-legal rationing official a better detector of the fact of oppression and hence a better protector of the individual. T o the rationing official, the problems of discriminatory- or arbitrary treatment (that is, oppression) were not academic ones. T h e principles by which he selected groups for preferential treatment were chosen by virtue of their administrative utility rather than their philosophic beauty. If he chose the wrong principle, he suffered personally because of criticism, and the successful administration of his program was impaired. T h e question of whether religious practitioners should be allowed to certify for illness rations and naturopathic physicians de-

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nied that right is not a question that can be answered by the technique of logic. If the rationing official chose the wrong principles for selecting groups for preferential treatment, many individuals suffered the experience of oppression, and the rationing official suffered equally a different kind of experience. The proper selection of those principles of classification is a sociological (and hence administrative) problem rather than a legal one. Many of the arguments about whether a proposed action was discriminatory were in the same class and just as fantastic as the arguments about how many angels could dance on the head of a pin. Although the achievement of a public interest or goal involves the regulation of individuals and the sacrifice of some individual interests, it is also part of the public interest to protect the individual from any unnecessarily oppressive action. That is to say, protection of the individual interest is part of the public interest. Any other position would be idealistic authoritarianism. Protection of the individual in the furtherance of the public interest has been regarded too much as a legal problem, and the legally derived formalisms have been too readily accepted as protections of the individual. The legally derived standards of individual protection, arbitrariness and discrimination, are controversial of definition and problematical of application. The individual feels harsh administrative action as oppression whether he is a consumer or a producer. The feeling of oppression in by far the greater number of cases is a result of administrative ineptitude rather than of administrative viciousness. Procedural formalisms, while they are certainly of value in securing greater deliberation in a very limited number of cases, do not begin to scratch the surface of the problem of protection of the individual. Protection of the individual is a problem in administrative skill and technique rather than a legal problem. In fact, the prevailing tendency to regard it as a legal problem has robbed the individual of much of the protection he deserves. Most of the 140 million people whose behavior is controlled under a regulatory program like rationing will never be able to enjoy the procedural protections of hearings and "days in court" even if they have the knowledge and the money to avail themselves of those protections. If rationing boards had been able to clear their dockets no faster than the courts of law, this nation would have starved to death in the first two weeks of food rationing. Protection of the individual will come with the proper training and selection of administrative officials. Protection of the individual can only be realized in any meaningful way by skillful administration. Skillful administration is protection of the individual.

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P R O T E C T I O N O F T H E PUBLIC INTEREST To the extent that individual interests were sacrificed by rationing, they were sacrificed by reference to a greater, more important interest —the public interest. Exactly what the public interest involves is a very controversial matter. The consumer interest, however, has as good a claim of being the public interest as any other, except, perhaps, national protection. The consumer interest is universal. Everyone is a consumer. There is a high degree of unity in the consumer interest. While most everyone is also a producer, as producers individuals are in competition with one another. W h a t is to the interest of one producer may be to the detriment of another. OPA was a consumer organization. It protected the individuals as consumers against higher prices and assured that the scarce supply of vital commodities would go around. Whereas price control conflicted with some producer interests, there was a strong coincidence of consumer and producer interests in rationing. In general, rationing was in the interest of business as well as the consumer. As far as dealers were concerned, rationing assured them a fair share of the scarce supply for purposes of resale, and removed from them the unpleasant task of deciding which of their persistent customers would receive the short supply of goods. Dealers, as a rule, did not like the consumer pressures that resulted from a short supply. In some industries, the harmony between the consumer and producer interests under rationing extended throughout the industry. For example, the oil industry, in strong competition with the coal industry with regard to heating fuels, wanted to come through the war with "clean skirts," having discharged its public obligation to keep its customers warm. The fact that there was considerable identity of producer and consumer interest under rationing made the task of pursuing the public interest considerably easier under it than under price control. There were some major conflicts, however, between consumer and producer interests under rationing. The desire of the big oil producers to protect their pre-war marketing position from opportunistic competition conflicted with some of the aims of rationing. Their desire to enjoy the profit advantage of gasoline over fuel oil resulted in a greater fuel oil cut than would have been necessary, and hence in more consumer discomfort than was necessary. The fact that the food distribution industry was composed of an extremely large number of anonymous wholesalers, and that it was not in competition with other industries as was the oil industry, resulted in continuous pressure to remove foods from rationing before this was justified by the facts of supply and demand. The

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fact that only a small percentage of the stove producers were allowed to continue in production resulted in a strong drive on the part of those producers to free themselves from rationing restrictions so that they could choose the orders to be filled. If they could sell their stoves to their own favorite dealers and wholesalers, they could build up a strong postwar market. Since the various supply agencies were organized to regulate production within a specific industry and staffed almost entirely by persons from that industry, the conflicts of producer and consumer interest appeared often as conflicts between O P A and the supply agencies. T h e supply agencies were all under suspicion by O P A personnel who felt their first loyalty to the consumer. Rationing relations with the supply agencies are described in Part II. Individual interests were sacrificed in the name of the public interest. T h e y were not sacrificed because of official viciousness. T h e public interest is the most general principle of official justification. T h e public interest, however, is an undefined and controversial notion, particularly in areas of specific decision. T h e fact that public interest is the principle of official justification and that it is undefined made it a tool of individual criticism; it made for many honest differences of opinion and much controversy. T h e various persons in a controversy would each feel that his position was most in harmony with the public interest, and there was no rational method for determining who was right. Some rationing officials had an extremely idealistic notion of the public interest, a notion of the public interest as transcending all individuals. F o r example, many attorneys believed that in promoting the notions of conservation and equity the very most restrictive rules with which it was possible for people to comply should be issued. T h e enforcement attorneys believed that every rule in a ration order should be rigorously and ruthlessly enforced. T h e y did not believe there was any excuse for non-compliance with any of the rationing rules. W h e n individuals criticized the harshness of some of the rationing rules, one frequently heard the remark: " D o n ' t they know there's a war on?" Some officials felt that there was no ground for individual complaint against the harshness of the rules until the sacrifices of the civilians and of the men in the foxholes were equalized. This idealistic concept of the public interest involved the maximum amount of individual oppression and sacrifice. Many of the original members of O P A had this Messianic attitude to an extreme degree. O n the other hand, there was also a large number of officials, following M r . Bowles' lead, who believed that the public interest involved both give and take, who believed, that is, that doing a little wrong in order to do a great

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right was not contrary to the public interest. These officials believed that rules that made it easy for individuals to operate under rationing, even though theoretically they lessened the enforceability or perfect equality of rationing, were not contrary to the public interest. T h e pragmatic approach to the public interest was much less portentous of individual oppression than the idealistic approach. As rationing developed, the rationing officials became more and more sure that they knew what the public interest was. Bodies of principles arose which rationalized past decisions and tended to control new ones. T h e "right" thing to do in a situation became more obvious. T h e public interest became institutionalized. W i t h the increasing institutionalization of the public interest, there grew increasing hostility to deviations from the accepted ideas of the public interest. Deviations were regarded as weakness and loss of integrity. W h e n M r . Bowles came to Washington with ideas of mollification of business (including the supply agencies) and the public, he was received with a certain amount of hostility by some members of the rationing staff. T h e man he appointed as deputy administrator for rationing, who preached the ideas of mollification of business and the public to an extreme degree, was never accepted by a majority of the rationing staff and was finally forced to resign. W h e n the extension of price control was being considered in the spring of 1945, M r . Bowles made a speech to the rationing staff in which he urged them to give in on small points in order to save O P A ' s ability to further its most important aims. He said that a half dozen orso well-placed horror stories at that time could ruin O P A as an effective price control agency. T h e speech was received with considerable hostility by some members of the rationing staff, who felt that O P A had lost its "intellectual integrity." C o m i n g into an agency where the ideas of the public interest had been institutionalized, new members either came to accept the institutionalized notions of the public interest or remained ineffective outsiders in an atmosphere of hostility and unfriendliness. Generally, the new members were taken over by the O P A rather than the O P A being taken over by them. At the end of M r . Bowles' tenure as head of price control, he was M r . Henderson reincarnated. Institutionalization of the public interest brings resistance to influences and lessens the possibility of a meeting of the minds between the governors and the governed—lessens, that is, the possibility of consensus in the state. Administrative officials for the most part do not consciously pursue an interest which they think is less than the public interest. W h e n officials advocate a policy which someone might think is too much in the interest

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of private groups, they do so in the name of the public interest. W h e n private individuals or businesses seek special treatment from their government, they also do so in the name of the public interest. W h e n in the midst of war-born scarcities the furniture store dealers sought preferred eligibility for gasoline foT installment collectors, they did so, they said, because installment buying encouraged a mass market and decreased prices to the consumer. There were no gangsters among the rationing personnel. In their pursuit of the public interest they had extreme integrity. They could not be bought and were known to have turned down bribes. They were extremely conscious of their duty to the consumer and the public. This consciousness is illustrated by the skepticism with which the gasoline eligibility committee received and considered the many claims from petitioners arguing that their function was uniquely related to the public interest. This skepticism of rationing personnel in their dealings with supply agencies, staffed almost entirely from the interested industries, will be described in the next Part. W h e n the integrity of the rationing personnel was combined with an increasing institutionalization of ideas of the public interest, it resulted in stubbornness and inflexibility and thereby increased individual oppression. This process was particularly noticeable in the field of ration eligibility. T h e reader should not get the impression that this process had progressed to an advanced stage in rationing because that is not true. However, rationing was an infant of only three and one-half years. Whatever the public interest is, it is certainly no substitute for an open official mind. It may be that the concept of the public interest, since no one has succeeded in defining it to anyone else's satisfaction, is not a valuable administrative concept. If the Department of Agriculture pursued a policy to the advantage of commerce and the detriment of agriculture, the Department of Commerce would think it was pursuing the public interest. O n the other hand, if the Department of Commerce advantaged the farmers to the disadvantage of commerce, the Department of Agriculture would vote it the Award of Merit. If the names of the two agencies were then switched, we would all probably agree that both were pursuing the public interest. As a matter of fact, if both the Department of Agriculture and the Department of Commerce cany out skillfully the purposes for which they were established, the personnel of those agencies can be proud and need to engage in no controversies about the nature of the public interest. Likewise, the rationing personnel, if they have discharged their responsibility to ration with honor, need not concern themselves about the nature of the public interest. Since the rationing personnel were asked to ration scarce commodities, they did

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not even need to entertain ideas from business that certain commodities should be dropped from the ration list while supply was not close to demand. To them, such a suggestion was simply contrary to their official purpose. The public interest is a general term without content which the administrative official attaches to what he thinks is right. It is not a tool of specific criticism. It does not inform any action. It can lead to official idealism and a maximum of individual oppression. More important to the public and everybody concerned is a clear definition of official purpose and skill in employing administrative techniques for the accomplishment of that purpose. There can be no interests but individual interests, and so protection of the "public interest," like protection of the individual, is most fruitfully sought in skillful administration. T H E PROBLEM O F VALUES The rationing officials, like nearly all other government officials, wanted to do "the right thing." They wanted to recognize activities or enforce conduct which was socially "good." They wanted to make decisions which would be generally recognized as "good" decisions. They tried to discern the predominant social values in any situation. Although most of the rationing rules were techniques for securing unassailable ends or values, the rationing officials often had to decide what was the "right" thing to do in the situation. The problem of classification was the problem of selecting the predominant social values. These values were the principles by which groups were selected for preferential treatment. As long as the principle of selection chosen was a popular social value, preferential treatment did not become discriminatory treatment. Although rationing officials had to make decisions with regard to values, they preferred to make technical decisions. To select a social value for special treatment placed them in the midst of a sea of controversy as to what is "good" or "better" with nothing to support them, so they felt, but their own strong feelings. They were far safer when deciding that some procedure or industry regulation was necessary in order to win the war, to distribute goods equitably, or simply to make rationing work. The decision as to whether a given rule or regulation is necessary to accomplish a given purpose is one which the government officials are assumed to be particularly competent to make. They have the facts; they are assumed to be experts. Their word as to techniques is usually accepted. Even if it is not accepted by everyone, the disagreement is only a difference of opinion as to the best technique. It can usually be settled by reason, by discussion. A difference in the selection of social values,

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however, cannot be settled so easily by discussion. Beliefs are not acquired by a rational process. The field of value selection is a field of legislation, of "policy creation," which embroils the official in controversy. The rationing officials tried to stay out of this field if they could. For example, the tire rationing branch devised an eligibility system which enabled them to blame the tire supply when an individual could not get tires. The chief fuel oil rationing officials refused to adopt a differential rationing system—one, for example, which allowed churches more oil than saloons—although this decision entailed some criticism by people who go to church (including some within OPA). If such a differential system had been applied, people who patronize saloons would have been critical. In fact, some people did make it known that they thought there were too many churches and to allow them all to be heated during the war was wasteful of the oil supply. By refusing to adopt a differential rationing system, the fuel rationing officials kept out of this controversy to a large extent. The gasoline eligibility committee rejected many proposals to recognize social values which were not connected with the war. However, when social values were so deep-seated as to be almost unanimously believed in, the committee could recognize them without danger of being involved in controversy even though they bore no relationship to the war. In fact, failure to recognize them would have resulted in criticism. Thus, ministers were allowed preferred mileage; special rations were allowed for going to the polls on election day; and special rations were allowed to bona fide political candidates for electioneering purposes. The committee felt that any further restriction of political candidates would "open the way to well grounded attacks upon the agency as attempting to limit the freedom of the electorate." In recognizing the values of "the operation of democratic institutions," the committee was taking no chances of involvement in social controversy. The committee's decision not to limit the purposes for which state governments could use gasoline was not related to winning the war, but it reflected a deepseated social feeling about government. To decide otherwise, the committee felt, might bring about a situation where it was claimed that OPA was attempting to control through mileage rationing what things government should do and what they should not do through the use of automobiles. Such action would undoubtedly interfere with the sovereign rights of government in a way which could be the subject of legitimate criticism. When the committee used such phrases as "well-grounded attacks" and "legitimate criticism," it showed that it shared the deep-seated feelings

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which made reference to the war effort unnecessary. Although these values did not relate to winning the war, they were almost as noncontroversial and unanimously effective as was the. value of winning the war. T h e y were part of the basic unity of the state. T h e rest of this chapter is devoted to a discussion of two important rationing cases—the veterans case and the stamp cancellation case. These cases illustrate many of the aspects of the planning process discussed in the foregoing pages. Principally, however, they illustrate the problems of the rationing officials in the field of social values—their problems in trying to find the "right" thing to do. The Veterans

Case

T h e veterans case is a description and analysis of the slow and painful process by which veterans preference came to be recognized in the rationing rules. T h e rationing officials did not believe it was "right" to use the allocation power to reward people for being in the armed forces, and that is what veterans preference meant to them. Veterans preference did not harmonize with the principles by which rationing had come to be rationalized. Veterans preference struck a discordant note among those principles. T h u s , the rationing officials were much slower to accept the value of veterans preference than everyone else. In August of 1944, the top O P A management became interested in the veterans problem and asked the rationing department to formulate a veterans policy statement. A veterans rationing policy committee was formed and presented a statement two weeks later. This statement shows the inability of the rationing personnel to recognize veterans as a special group for purposes of preferential treatment. T h e rationing officials could find no social value to use as a principle of classification which would keep veterans preference from being a discriminatory exercise of the allocations power. T h e policy statement divided the veterans problem into three parts: ( 1 ) discharge rations; (2) rations for disabled veterans; and ( 3 ) favorable treatment in acquiring business inventories of rationed goods (in some rationing programs, only firms existing at the beginning of the program could trade in the rationed item ). With regard to number one, above, the statement said: "Veterans are entitled as soon as they leave the armed services to the various rations for which civilians may be eligible." W i t h regard to number two, on disabled veterans, the statement said: In most cases our present regulations are also broad enough to provide rations for disabled veterans. . . . For example, a veteran whose disability requires the use of special shoes can obtain special shoe stamps by showing the nature

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of his need. In the case of food, the provisions for additional rations in cases of an illness were designed to take care of all essential health needs. In the case of gasoline, veterans are eligible for the same supplemental rations as other members of the public who are similarly situated. W i t h regard to number three, opening new businesses, the statement points out that there were no restrictions on this in most programs, and in the others "changes are now in process of preparation which would allow an honorably discharged veteran to enter the kind of business that he operated before joining the armed services if he closed or disposed of his business at that t i m e . " In this policy statement there was no recognition of preferential treatment for veterans, as veterans, except in the right to reopen businesses. E v e n admitting this right to the veteran, however, involved the rationing officials, so they felt, in a very difficult value selection—that is, they could find no clear guide to right conduct in this situation. T h e memorandum from the chairman of the rationing veterans policy committee, which was the basis for the veterans policy statement, shows the difficulty which the rationing officials had even in recognizing veterans preference to the extent of allowing veterans to reopen businesses which they left when they joined the armed forces. Men who were drafted had no choice about their change of occupation. While men who volunteered or were commissioned had a greater choice and may not have seen combat service, any distinction between the inductee and the volunteer, or between the man who had seen combat service and the man behind the lines would be difficult to establish and pretty hard to justify. The distinction between a disabled and a nondisabled veteran is not too logical, since the principle consideration is that of leaving a business in which the individual has had experience and to which he wants to return. T h e distinction between the businessman who joins the armed services and one who goes to work in a shipyard is easier to establish since the latter man is, by and large, more free to choose and more likely to have acted for reasons similar to those applying to a change of jobs in peace time. In this statement, the writer has tried to find value principles which would " j u s t i f y " allowing veterans to reopen businesses while allowing 110 one else to start in business. Some of the various value principles, or principles of selection, which occurred to the rationing officials in developing the veterans policy statement are as follows : (1 ) E q u a l rights to life and health. It cannot be said that one person has a greater right to life and health than another, even though he is a veteran. Therefore, preferential rations cannot be given to veterans in the fields of food, clothing (shoes), or heat (fuel oil and stoves). How-

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ever, the principle of equal rights to life and health would not preclude preferential treatment for veterans in tire and gasoline rationing. ( 2 ) T h e principle of limited choice. Since persons inducted into the armed forces had little choice about closing their businesses, it seemed "right" to allow them to reopen them when they were discharged (the rules said "honorably discharged"). This principle would provide no basis for allowing volunteers to reopen businesses, however, and therefore would not justify preferential treatment to veterans, as such. It would, however, exclude war workers who left their businesses for war work. ( 3 ) T h e principle of administrative feasibility. T h e difficulty of determining degrees of exposure to danger would provide some basis for including veterans whether or not they were under fire. However, some line could be drawn, such as a distinction between veterans who left this country during the war and those w h o did not. T h e principle of limited choice, however, would include all inductees in veterans preference whether or not they left the country. (4) T h e principle of " h i g h " motives. This principle would exclude most war workers who closed their businesses in order to go into war work, because most of them were probably motivated by economic considerations (not a " h i g h " motive). N o t all of them were so motivated, however. If this principle were followed, some war workers would be allowed to reopen businesses, and some veteran volunteers who joined up to get commissions and avoid being " G I ' s " would not. Furthermore, since inductees had no choice, the principle of " h i g h " motives could not be applied to them. In fact, it negates the principle of limited choice. However, since it is impossible as a practical matter to determine motives, the principle of administrative feasibility would make us discard the principle of " h i g h " motives. All of these conduct guides can be found in the thinking behind the parts of the veterans policy statement quoted above. None of them led to a conclusion of preferential treatment of veterans, as veterans, even to the extent of allowing them to reopen businesses. T h e rationing attorneys, acting according to their training, sought a solution for this problem of social values in the law. They asked the O P A research and opinion branch (a centralized legal research unit) if allowing a veteran to reopen his business, closed because of his war service, would be legal—that is, if it would be a reasonable classification for purposes of preferential treatment. T h e research and opinion branch, in a two-page memorandum which cited four acts of Congress and a court case back in 1904, found that " t h e classification is 'appropriate in

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the public interest.' " The "law" on the question seemed to be very simple —much more simple than the rationing officials found their own consciences to be. This is a proper classification, because it is based on an assumption that such a veteran would have remained in that business, in the absence of his war service, if he were in the business on the date set forth in the regulation. Even if he were not engaged in that business on the date specified in the regulation, the provision still is reasonable for it conforms to the Congressional policy of giving aid to returning veterans who desire to enter into business. Except for provisions in food rationing allowing veterans to open businesses, preferential treatment of veterans with regard to food, clothing, and heat was not granted, nor was it expected. The full force of the drive for veterans preference converged upon the gasoline rationing branch (to a lesser extent, the tire and automobile branches as well). Because of the way gasoline eligibility had come to be conceptualized, special treatment of veterans simply because they were veterans was an extremely difficult idea for gasoline rationing officials to accept. T o rationing consciences, nourished on the ideas of essentiality and necessitous use, veterans preference in gasoline eligibility was simply wicked. Many of the gasoline rationing officials, while not accepting the idea of veterans preference as "right," felt that pressures would eventually become so strong that some recognition would eventually have to be given to veterans preference. The gasoline rationing officials' objection to special treatment of members of the armed forces was an objection of long standing. In its second meeting, November 24, 1942, the gasoline eligibility committee voted against furlough rations for members of the armed services. "The Committee was of the opinion that gasoline and tires should not be used as a bonus to the armed forces and recommended that the petition be denied in as sympathetic a manner as possible." (Later, at the request of the Army and Navy, furlough rations were allowed; they were justified as allowing driving to take care of necessary business and to make necessary social calls while on furlough.) The veterans problem began in the summer of 1944. In August, the results of discussions in the administrator's office between representatives of veterans' organizations and representatives of the administrator were referred to the gasoline eligibility committee. The committee recognized the problem as "significant and particularly important at this time." It decided that "it is necessary, therefore, that the Gasoline Branch of the OPA consider the problems carefully and adopt a policy which can be

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defended as a reasonable procedure in the public interest." 4 6 A t this meeting, the committee stated its veterans policy. It also showed that it could do things for veterans but not simply because they were veterans. The general policy of the Gasoline Rationing Branch has been that a veteran who has been discharged from the armed services should be classified from the standpoint of gasoline rationing as a civilian and should be subjcct to all the privileges or limitations extended to civilians. . . . The committee believes that it is not sound to adopt a policy as a result of which special consideration would be shown to a person merely by virtue of the fact that he is a veteran. On the other hand, it is desirable that the Gasoline Rationing Branch seriously consider the problem of gasoline for veterans seeking employment as a problem which directly affects the civilian economy. T h e committee voted that the problem of veterans' employment be first taken up with the W a r Manpower Commission. A t its meeting of September ç, 1944, the committee decided that a small amount of gasoline should be made available " t o persons who have been referred to specific jobs by U S E S offices." This gasoline was for both veterans and discharged war workers, because "the employment of veterans and of war workers who have been discharged from their work at war plants is necessary to the public welfare." There is no recognition of veterans preference in this quotation. Reemployment of all persons, both veterans and war workers, is tied to the "public welfare." At its next meeting, on September 10, the committee again discussed gasoline for persons seeking employment. This time, the word "veterans" was not used at all in the minutes. T h e next request for special treatment of veterans was that special rations be allowed for transporting entertainers to veterans hospitals and recuperation centers and for transporting veterans to and from places of entertainment. T h i s request came from the American Legion. T h e committee consulted with the Medical Division of the National Research Council, the office of the Surgeon General, the Veterans Administration, and the American Medical Association. T h e consensus, according to the minutes for January 26, 1945, was that entertainment might have "to a certain degree therapeutic value," as in the cases of cripples or tubercular patients, but might do harm for others. Also, much entertainment was already being provided. " T h e r e was no indication from the medical men interviewed that a condition existed which necessitated further action by O P A along the lines of additional gasoline rations." T h e committee unanimously denied the request. T h e pressure for entertainment rations continued to grow and by April the committee had agreed to allow them. T h e chief of the gasoline eligibility section said that the committee was "browbeaten" into agreeing to recuperating veterans entertainment

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rations by the rationing hierarchy. H e said that officials of the Veterans Administration, if approached privately, did not think such rations were necessary. U p to this time, the gasoline rationing officials had been able to justify (to themselves) the extension of preference to veterans, or members of the armed services, by reference to some generally accepted value, such as health, reemployment, or, in the case of the furlough ration, "necessary driving while on furlough." However, with the tremendous increase in numbers of discharged veterans after V - E Day, the pressure for a special discharge ration grew to sizeable proportions in a few weeks. Pressure came particularly from the O P A field organization, the local boards not wanting to deny veterans, and the field offices wanting to legalize the action of boards, many of which were granting discharge rations in spite of the regulations. M a n y Congressmen wrote to the administrator demanding a discharge ration and many more importuned by telephone. Newspapers began to carry stories about disabled veterans' trouble in getting gasoline. T h e special discharge ration was a bonus, a reward for having served in the armed forces. It could not be rationalized nor justified on any other basis. T h e conflict between the idea (value) of gasoline as a reward and the rationalizing concepts of gasoline rationing (essentiality and necessitous use), on one side, and the growing public demand for a veterans discharge ration, on the other, created a really first-class administrative crisis in gasoline rationing. T h e deputy administrator's office, while it thought that veterans preference was "wrong," felt that discharge rations should be applied simply to still the growing public criticism. O P A should " d o a little wrong to do a great right." T h e chief of the gasoline rationing branch felt the same way. In other words, the hierarchy, as usual, was more responsive to pressure than the lower officials. T h e deputy administrator polled his immediate staff on the question of discharge rations late in M a y , 1945, and the vote was in favor of such rations. Shortly thereafter, the chief of the branch received a letter from the Veterans of Foreign W a r s suggesting a discharge ration of sixty gallons for veterans in rural areas and thirty gallons for veterans in the urban areas. H e brought up the subject of a discharge ration at the next meeting of the gasoline eligibility committee. B y this time, the committee had developed far enough in its acceptance of veterans preference to approve the idea of allowing more gasoline to a disabled veteran than to other persons. " T h e Committee believes that the general principle involved can be justified and that some means of making additional rations available for such disabled veterans should be worked o u t . " 4 7 T h e suggestion was to raise the " B " ceiling

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for disabled veterans to 825 miles per month (it was 650 miles per month for others). T h e committee was not yet ready to accept the discharge ration proposal, however. In essence this would be a bonus ration and would not logically come under the reasons for which the furlough ration was originally instituted. It was believed that the public pressure was being built up to the point where such a ration may have to be granted but the Committee was for the present opposed to granting this request. T h e following week the committee again rejected the discharge ration proposal. Shortly thereafter, a letter from a Congressman strongly advocating a discharge ration was handed on to the gasoline rationing branch. A letter in reply was prepared by the chicf of the gasoline eligibility section, but it was never sent because the branch chief, who thought the discharge ration should be allowed for political reasons, did not think the letter was convincing. In this letter, the conflict between the ideas of gasoline as a reward and gasoline for essential or necessary use is clearly 5 CCIl. I believe it would be extremely hard to justify using a large amount of gasoline as a bonus or discharge ration where the necessity for such a ration is highly conjectural and, at the same time, to deny gasoline which is very badly needed for necessary occupational travel. After the Congressman's letter was received, the discharge ration proposal was brought before the committee for the third time and again rejected. After this meeting, the gasoline rationing branch received an irate letter from a misinformed discharged officer complaining about discrimination against officers in favor of enlisted men. Officers received terminal leave when they were discharged and were, therefore, technically eligible for furlough rations upon discharge. This officer had ten days coming, and the board, following the procedure of allowing one gallon per day of furlough up to thirty gallons, granted him ten gallons. He complained that many enlisted men he knew got thirty gallons of "discharge" rations. This letter brought to light an accidental discrimination against enlisted men who did not receive terminal leave when discharged. W i t h i n a few days of this letter, the branch received a request for an interpretation as to whether officers' terminal leave was the proper occasion for a furlough ration. T h e attorneys decided that it was. In its next meeting on June 28, the committee agreed that this unequal treatment was wrong and that either a general discharge ration should b e allowed

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or granting furlough rations for terminal leave should be discontinued. It favored the latter. The Committee docs not feel that the gasoline supply situation at this time will warrant the extension of an automatic discharge ration to all members of the armed forces. However, a final decision on this matter will be in the hands of the Deputy Administrator. The committee decided to recommend no action, however, until a decision had been made on the discharge ration. (By this time, the chief of the gasoline eligibility section had become convinced that OPA should do something for "the boys" in the way of a discharge ration.) Before the next meeting of the eligibility committee the Washington Times-Herald published a front-page story of the difficulties of a jobhunting disabled veteran under the rationing regulations. This veteran, according to the story, was unable to use public transportation because of disabilities incurred in combat. The gasoline rationing rules allowed him only enough gasoline for a specific referral by the War Manpower Commission, and, consequently, he had to go back to the board several times. Coming right at the time it did, this story may have tipped the balance and persuaded the wavering members of the committee that preferential treatment of veterans was something the public wanted—that the committee's position on the question of veterans preference was out of tune with the times. At the committee's next meeting, on July 5, 1945, "after some discussion on the feasibility of granting discharge rations to servicemen, the consensus of opinion was that this should be done." Although the public wanted to show its gratitude to members of the armed forces, the committee still did not think veterans preference was "right." At the same meeting, the committee rejected a proposal to grant furlough rations to American citizens serving in the armed forces of the allied nations. "The Committee felt that no such action could be taken, since this would only be a step in the spiralling of furlough rations which it had agreed some months ago must stop." The chief attorney for the division was not present at the meeting when the committee voted for discharge rations. When the amendment allowing them was prepared, he refused to clear it until ordered to do so by the deputy administrator, whereupon he resigned from his position as advisor to the deputy administrator on veterans problems, a position he had held for several months. The amendment was issued August 3, 1945. Two weeks later the war with Japan ended and so did gasoline rationing. To allow a discharge ration or other forms of veterans preference as a reward for war service was a "good" thing to do in the eyes of most people.

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People generally wanted to express their gratitude to those who had undergone years of "involuntary servitude" for the good of all the rest. Discharge rations would have taken an infinitesimal amount of gasoline, estimates ranging from 2,000 to 6,000 barrels per day (gasoline was being consumed at the time at a rate of about 40,000 barrels per day above the quota allowed civilians by P A W ) . Allowing veterans preference involved no possibility of an unfortunate public reaction. T h e classification of veterans into a group for preferential treatment would have been accepted as "reasonable" and good by most ever)one (not just the " l a w " ) . It would not have opened the door to cries of discrimination. Veterans preference was not a controversial value. It was the public policy of the time. Veterans preference, however, was not in harmony with the rationalizing concepts of rationing in general and gasoline rationing in particular. T h e discharge ration did not fit in with the ideas of essentiality and necessitous use. As the gasoline rationing officials said in the veterans policy statement, " O u r entire gasoline rationing policy must be based on the essentiality of the work that a man does." Although " B " rations were allowed for any gainful occupation, they were only allowed for "necessary driving in connection with an occupation." Veterans preference, especially in gasoline rationing, was delayed amidst considerable turmoil because of the way the rationing officials had come to think about rationing and because they were sure that that way was the right way. Acceding to the demands for veterans preference appeared to them to be a wicked thing to do. T h e two rationing attorneys involved in the discharge ration case never did admit that such rations should be allowed. They thought, and said, that O P A had lost its "intellectual integrity." T h e rationing officials thought, as the eligibility committee stated, that their policy was a "reasonable procedure in the interest of the public welfare." Although they were promoting their own ideas of the public interest, it is not clear that they were in fact promoting the public interest. The Stamp Cancellation

Case

T h e veterans case is an example of what might be called the introspective method of solving value problems. T h e officials, searching for a conduct guide, looked to their own consciences which were apparently out of tune with the times. T h e problem had to be solved, therefore, by external pressure. In the stamp cancellation case, the officials tried to find the social value which was most deep-seated and would, therefore, render an official action, bound to be unpopular, least objectionable. T h e officials in this case, of course, also searched their own consciences,

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but their consciences were more responsive to society on the point in issue. T h e stamp cancellation case began in March of 1944, when expiration dates were removed from food stamps because of the advent of tokens (which cannot be expired) and the belief that expiration dates encouraged buying. T h e O P A administrator, announcing this change in a press release on March 27, 1944, said: From now on the red and blue stamps in War Ration Book Four will be good indefinitely, just as shoe and sugar stamps are. Advance notice will be given if it is found necessary to retire any food stamps. Shortly after this action, people began to grow optimistic about when the war would end, particularly the officials in the W a r Food Administration ( W F A ) . T h e food industry, having been hurt somewhat after the previous war, was afraid of military dumping of food supplies. Consequently, W F A ordered many foods removed from rationing. In M a y , 57 per cent of meats were de-rationed, and the following September most processed foods were de-rationed, over the protests of food rationing officials who said the facts did not justify the action. W i t h many foods removed from rationing, and with high point values on the remaining foods, many people did not cash in their ration stamps. Since these stamps did not expire, people accumulated considerable rationing purchasing power. A spot survey made in October showed that, on the average, people had about two and one-half months supply of processed food points. T h e y were unequally distributed, some people having four or five-month supply and others no more than they should have. T h e food supply situation deteriorated rapidly. T h e food rationing branches collected figures to show what was happening. W F A was not impressed, however, until after the "Battle of the Bulge" changed everyone's ideas about the date the war would end. M r . Bowles took a visual presentation of the food supply situation, prepared by the food rationing branches, to the Director of Economic Stabilization, who then ordered W F A to order O P A to return most foods to rationing control. This was in December of 1944. T h e problem of what to do with the excess ration purchasing power outstanding became an issue immediately. Continuous conferences were held for days in the office of the deputy administrator for rationing. Present were the deputy and assistant deputy administrator, a special assistant to the deputy administrator, the deputy administrator for information and his chief assistant, and the director and assistant director of the food rationing division. T h e problem was that the announcement that food was again rationed would have brought the excess ration purchasing power into the market and cleaned out food

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inventories. T w o solutions were discussed. First, point values could have been increased to the point where the outstanding ration currency would be dissipated in higher point prices. T h e trouble with this solution was that it would not hurt the people with a lot of unused stamps who, it could be argued, did not need rationed foods, but it would reduce the food rations of people who had no unused stamps and who apparently, therefore, really needed their food rations. T h e second solution discussed was to cancel or invalidate all outstanding food stamps. This would remove the threat to food inventories without having the undesirable effects of the first solution. T h e trouble with the second solution was M r . Bowles' promise that people would be given notice before food stamps were invalidated, and to give notice of cancellation would wipe out the value of cancellation. People would all rush to the stores and buy up all the rationed food before the stamps were cancelled. T h e promise to give notice was what created the issue. T h e director of the food division favored cancellation in a vacillating sort of way. T h e day after the decision to cancel was made, for example, he called the deputy administrator and said, " W e can't do this." T h e assistant director of the food division was resolutely for cancellation as the only "right" or fair thing to do. T h e deputy administrator agreed that this was "right" but feared public reaction. T h a t was why he had brought the representatives from the information department into the case. T h e representatives of the information department, in line with their specialty, thought the stamps should not be cancelled. T h e y felt that, in the eyes of the public, cancellation would be stealing "currency" from the people. They thought that cancellation would undermine faith in O P A and in government generally. T h e special assistant to the deputy administrator, formerly in charge of shoe and rubber footwear rationing, was afraid of the effect cancellation would have on other programs, specifically shoes. If people feared that shoe stamps were to be invalidated, they would rush to the shoe stores and wipe out dealer shoe inventories in a few days. T h e rationing department decided to cancel the outstanding food stamps without previous notice. Mr. Bowles agreed to this conclusion. It was decided to cancel the stamps as of Sunday, December 3 1 , 1944, the announcement to be made Saturday night. A leak occurred ten days before this and runs developed in some localities. Therefore, it was decided to move the date up and cancel the stamps right after Christmas. T h e story was released Sunday, December 24, 1944; the cancellation was effective Tuesday, December 26. T h e information department sent out

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an appeal to the press to try to understand OPA's action and explain it to the people. M a i l immediately began to pour in, and Congressmen became critical and abusive. Public reaction died down very quickly, however. T h e T w o h e y Analysis of Newspaper Opinion indicated that rationing and shortages led all other topics in editorial space received for the first two weeks after the action. For the week ending December 30, 60 per cent of the comment dealt with tightening of the food rationing program. T h e following week only 35 per cent of the editorials discussed the changes in food rationing. For the week ending January 1 3 , 1945, the food rationing changes were not mentioned as one of the major topics of interest. According to a telegraphic poll of O W I ' s editorial panel, criticism was subsiding by January 3. T h e bulk of the unfavorable comment was, of course, on the cancellation. Comments were six to one in favor of re-rationing food, and about four to three against cancellation. There were comments about "repudiated government obligations" and "breaking faith with the public." About a fourth of the editorial comment said that thrifty and patriotic housewives had been penalized in favor of the extravagant ones. Most of them, however, emphasized the effect in loss of public confidence in O P A and felt it would lead to over-buying and hoarding. Even some editorials favorable to cancellation thought it would lead to hoarding. Those in favor of cancellation explained it by reference to increased military requirements, thought the unused and cancelled stamps were not needed anyway, and said it was the best solution for a difficult situation. Surveys of consumers indicated that most of them were not angry with O P A . Mail died down in a few weeks. T h e whole incident was practically forgotten in a month. In the stamp cancellation case, the rationing officials, trying to find the right thing to do, selected the principle of equality of sacrifice (or, stated differently, equal satisfaction of need). T h e principle upon which food rations were distributed, mathematical equality, would have led to a contrary conclusion. Food rations were distributed equally, regardless of need or anything else. Cancellation of the outstanding stamps took some of the food ration away from some people—those who did not need it. T h e principle of equality of sacrifice (or equal satisfaction of need) triumphed over several competing rules of conduct: ( 1 ) the principle of numerical equality, the basis of food ration distribution; (2) the idea of fair play in giving people prior notice of stamp cancellation; ( 3 ) the belief in the value of keeping promises (Mr. Bowles' promise to

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give prior notice); (4) a technical prophecy as to the great harm cancellation would do to O P A public relations; and ( 5 ) a technical prophecy as to possible deleterious effects on other programs (runs). All of those rules of conduct (arguments) indicated a contrary decision. Nevertheless, the rationing officials decided to cancel the stamps, showing the superior power of the principle of equality of sacrifice as an argument. T h e v selected the most effective and deep-seated social principle, as the speed with which the outcry against cancellation died down plainly shows. In making the decision for stamp cancellation, the rationing officials were completely in harmony with their society.

Part IL

External Relations

of Rationing Branches Chapter 8.

T H E SUPPLY A G E N C I E S

THE MOST IMPORTANT external relations of the rationing branches were those with the supply agencies, the Bureau of the Budget, and the O P A rationing overhead. Relations with the supply agencies were significant chiefly because they represented the consumer-producer conflict of interests. Relations with the Budget Bureau because of its power to review reporting requirements were significant as an example of a very common and troublesome type of governmental relationship—the mastermind relationship. Relations with the rationing overhead were important because of the light they throw on organization theory. Relations with the supply agencies are considered first. O P A received its first general grant of rationing authority from W P B by Directive No. 1 . This directive gave O P A power to control transactions between the industry and ultimate consumers. O P A developed a type of rationing which required a certain amount of control of all transactions in the rationed commodity back to the ultimate producer or importer, called "flow-back" rationing. Under the flow-back system rationed commodities moved from the ultimate producers or importers through trade channels in the directions, in the amounts, and at the speed determined by the issuance of ration currency by local boards (and, to some extent, other O P A offices). In effect, O P A created through the local boards a new demand—rationed demand, and this demand determined the distribution of rationed commodities. T h e supply was determined by the supply agencies, and the rationed demand was cut to that supply. Because of the flow-back type of rationing, W P B Directive No. ι did not give O P A sufficient power to ration, and so supplementary directives were issued for each program. For the petroleum programs (gasoline and fuel oil), O P A got additional authority to require the transfer of ration evidences for transactions at all levels of the trade—not just the consumer level as allowed by Directive No. 1. For the food rationing programs, following the pattern of the sugar rationing directive, O P A

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acquired complete authority over distribution at all levels. Although the food rationing authority was, therefore, more extensive than the petroleum rationing authority, the petroleum rationing programs actually established a more thorough control over distribution—a more complete flow-back process. T h e early simple relationship with W P B , the delegating authority, was soon disrupted. O n December 2, 1942, the Office of Petroleum Coordinator, created in 1 9 4 1 , became a new and powerful Petroleum Administration for W a r ( P A W ) by Executive Order 9276, (7 F . R . 10091 ). P A W was organized within the Department of Interior, and Harold Ickes, the Secretary of Interior, was named Administrator. He was to have power over "the conservation and most effective development and utilization of petroleum." l i e was subjcct to the direction of the chair man of W P B (then Donald Nelson), but, subject to this direction, he was empowered to give allocation directives to the petroleum industry . T h e power of O P A to require the surrender of ration currency for transactions at all levels of the trade was not revoked. O P A and P A W were both subject to W P B . P A W could "allocate" or control the distribution of fuel oil and gasoline within the industry down to the retailer "subject to the direction of the Chairman of the W a r Production Board." O P A was rationing both gasoline and fuel oil by means of the flow-back system and had full authority to do so under directives of W P B . T h e stage was thus set for conflict between P A W allocations and O P A flowback. U p until December of 1942, O P A was rationing two foods, sugar and coffee, under directives of W P B . O n December 5, 1942, Executive Order 9280 (7 F . R . 1 0 1 7 9 ) gave authority over all aspects of food production and distribution to the Secretary of Agriculture, Claude Wickard, the allocation power to be exercised by a Food Distribution Administration under the Secretary. O n March 26, 1943, by Executive Order 9322 (8 F . R . 3807), full power over the production and distribution of food was given to a W a r Food Administration within the Department of Agriculture, the administrator to be appointed by and responsible to the President. T h e President appointed Marvin Jones. Thus, from December of 1942, on, complete control over food rationing was vested in either the Department of Agriculture or the W a r Food Administration ( W F A ) . O P A had to have its authority to ration sugar and coffee renewed by the new delegating authority and had to obtain adequate authority from the new food agency to ration processed foods and meat, fats, fish, and cheese. This new authority was eventually obtained, after much discussion, and

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followed the pattern of the original grant of authority to ration sugar —namely, complete control over distribution. T h e legal authority of W F A over food rationing was complete. It could revoke or m o d i f y O P A ' s food rationing directives. It also determined the amounts of foods available for rationing to civilians and could specify what foods were to be rationed or removed from rationing and also the times and places of food rationing. P A W had no such extensive legal authority over petroleum rationing. O P A received its petroleum rationing directives from W P B . However, P A W determined the amount of gasoline and fuel oil available for civilian rationing, subject to review by the chairman of W P B . O n September 1 7 , 1942, by Executive Order 9246, the Office of the Rubber Director was created within W P B . T h e Rubber Director was responsible to and appointed by the chairman of W P B . H e was given complete authority over all aspects of the rubber program, including the rationing of tires and tubes and also nation-wide gasoline rationing to the extent that it was a tire conservation program. H e could issue directives to O P A with regard to either tire or gasoline rationing. H e determined the amount of tires and tubes available each month for civilian rationing. H e had no authority over the supply of petroleum products, however. Other rationing branches dealt with the appropriate divisions of W P B and of the Office of Civilian Requirements ( O C R ) within W P B , which were, in effect, the supply agencies for their programs. In addition, the Office of Defense Transportation was given full authority over the commercial vehicles of the country. It determined their gasoline needs and issued the operators Certificates of W a r Necessity. Local boards merely issued gasoline rations to commercial vehicle operators according to their needs as stated on the Certificates of W a r Necessity. From the foregoing discussion, it will be seen that the original functional approach to civilian war organization soon gave way to commodity or industrial type organization in many fields. T h e establishment of "commodity czars" was probably justified, both to gain proper attention and emphasis for peculiarly vital fields like rubber, petroleum, and food, and to gain the all-out support of the industries concerned so necessary to achieve America's war goals. However, the establishment of commodity czars made life very difficult for the remaining functional authorities, such as O P A and O C R (Office of Civilian Requirements), which operated in many fields. Although P A W and the Office of the Rubber Director were both nominally under the direction of the chairman of

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W P B , in practice they became too strong for him to control. As for the food czar, he was legally independent of W P B . Thus, in the fields of petroleum and food rationing, and to a lesser extent tire rationing, the O P A rationing officials, representing a functional approach to wartime problem-solving, faced the commodity organizations directly. As Dean and Vass point out, the resulting conflict "was a conflict between self-determination by industry and emphasis upon the generalist like Henderson who lays emphasis upon public needs." 1 As for the other rationing programs, their "commodity czars" or "supply agencies" were the industry divisions in both O C R and W P B . Although the problems of relationships with these industry divisions were somewhat the same as the problems of relations with the czars, the conflicts were considerably mitigated by virtue of the fact that both O C R and W P B , as agencies, were functional agencies with a general rather than a specific responsibility. Consequently, they developed what might be called a more national point of view than the purely commodity agencies. T h e fact that O P A got along well with the functional type of agency is further emphasized by the good relations enjoyed by O P A with the Office of Defense Transportation ( O D T ) . As the first deputy administrator for rationing says, "Actually O P A and O D T worked closely and in the most friendly spirit to coordinate the discharge of their intertwining responsibilities. Personal relations between the two staffs were always of the best, born I suspect of mutual respect for each other's 'public service' point of view." 2 A previous chapter mentioned that the conflict between consumer and producer interest in rationing appeared chiefly as a conflict between OPA and the supply agencies. T h e reason for this fact should be clear by now. T h e supply agencies, both the industry divisions within W P B and the commodity czars, were organized to deal with a particular industry and were staffed almost entirely with representatives from that industry. Thcv represented "self-determination by industry." O P A personnel were always suspicious of the supply agencies, feeling that they put the good of the industry before the good of the public—which to O P A personnel tended to mean the consuming public. T o quote again from the first deputy administrator for rationing: The simple fact of the matter is that the points of view of OPA and PAW were deeply and fundamentally irreconcilable. OPA was attempting to assure the consuming public of an equitable distribution of petroleum products, while P A W was attempting to preserve the competitive status quo in the jetroleum industry. The staffs of the two agencies simply talked different anguages. The OPA people were aggressively "public welfare" minded, the P A W people were equally aggressively "industry welfare" minded.3

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T h e r e can be no question but that the supply agencies took a more industry-minded point of view than did O P A , and that O P A took a more consumer-minded point of view than did the supply agencies. T h e basic conflict between the supply agencies and O P A was the conflict between the producer and the consumer interest. T h e W a r F o o d Administration ( W F A ) , like P A W , was largely industry dominated. Industry pressures on rationing policy often came through W F A officials. Following the industry lead, W F A insisted on the "bare shelf" policy—the policy of moving out all processed foods (canned fruits and vegetables and fruit and vegetables juices) during the year without maintaining reserves. In normal times, the processed foods industry carried over from one pack year to another around 1 3 0 million cases. Rationing began with only 75 million cases, and, by the end of rationing, reserves or stocks were down to 20 million cases. 4 T h e "bare shelf" policy was an industry policy. It was change from normal practice to protect the industry against a sudden ending of the war and the dumping of large military stocks on the market, as had happened after the first W o r l d W a r . T h e consumer point of view was that adequate reserves or cany-overs should be maintained as a cushion against a possible poor year. Furthermore, on the basis of all available evidence, it appeared unlikely that a sudden ending of the war would result in any dumping, considering the prospect of large armies scattered all over the world and hungry allies to feed, not to mention the starving liberated countries and the enemy. Nevertheless, it paid the industry to be safe, and W F A regarded it as its duty to see that all processed foods were moved out during the pack year. Fearing that the war would be over in the fall of 1944, the food industry persuaded W F A to order O P A in September, 1944, to remove all canned vegetables from rationing. T h e rationing officials, believing that this action was completely unjustified by the facts, immediately took the issue to the Office of Economic Stabilization ( O E S ) , then under Justice Byrnes, but were overruled. Consequently, all canned vegetables were removed from rationing on September 1 7 , 1944. T h e war did not end as planned. T h e food rationing officials prepared an elaborate, visual, "flip-over" presentation of what was happening to the nation's food supply and took it to O E S . O E S then ordered W F A to "order" O P A to restore canned foods and most meat (removed the previous Ma\ on the direction of W F A ) to rationing. M e a t and canned vegetables were restored to rationing on December 26, 1944. Another example of the producer-consumer conflict as embodied in a conflict with a supply agency was the fight over flow-back vs. historical allocation of petroleum products. During the summer of 1942, when

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fuel oil rationing was being discussed, P A W , then the Office of the Petroleum Coordinator, vigorously opposed coupon rationing of fuel oil. P A W ( O P C ) preferred a dealer limitation order prohibiting dealers from delivering more than a certain per cent of each customer's needs as shown by past use, plus a vigorous conversion (to coal) program. Coupon rationing won, as being much more equitable and enforceable. O P A then proceeded to plan a coupon flow-back type of rationing program. Coupon flow-back was an allocation device. It was the reflection of a created demand—rationed demand. T h e fuel rationing officials expected P A W to bring the fuel oil into the rationed area ( fuel oil was rationed only in the east and northwest) and to allow it to flow freely from there on in response to the coupon or rationed demand. T h e y were disappointed. O n September 25, 1942, P A W issued Directive 59 (7 F . R . 7759), which was a government approved cartel agreement among the seventy-odd major oil companies in the eastern shortage area. These were the companies large enough to have imported oil to the east coast by tanker in 1 9 4 1 . These companies agreed to import all the oil into the area, mostly by the more expensive method of tank cars ( for which additional expense the government reimbursed t h e m ) . Submarine sinkage had made tanker shipments almost impossible. Each company was given a monthly quota of oil to sell according to its 1941 sales. If it sold more than its quota, it made oil available later to the under-sold companies or paid over the profits to them. Directive 59 was silent as to how these major companies were to distribute oil to secondary suppliers and dealers, but, in general, the same pattern of historical sales was followed. Thus, there was superimposed upon the flow-back system (the system of rationed demand), an allocation system based on historical sales. Rationed demand was different from historical demand (sales). It was a man-created war-time demand. Some consumers were deeply cut in their use of fuel oil and gasoline; others, such as industrial users, were not cut at all. In fact, their demand increased. Thus, fuel oil or gasoline dealers whose customers were of the latter type would need more product than they had needed in 1941 while the others would need less.5 Therefore, under the historical pattern of P A W ' s Directive 59, oil was bound to become badly distributed, and it did so immediately. At one time during the first winter of fuel oil rationing, one supplier had nearly all the oil in N e w York harbor, and he refused to sell it to any but his own jobbers and dealers. T h e Brooklyn Gas Company got down to a five-hour supply. O P A had to solve this problem by amending the fuel oil rationing regulations

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(Amend. 26) to ban discrimination between customers who presented ration currency, and then getting an injunction against the company. T h e same situation occurred in Washington, D . C . , when one company got most of the oil, refused to sell to other dealers, and openly encouraged other dealers' customers to swing over to it. Shortages also occurred in many other parts of the country. T h e anti-discrimination amendment had excepted from its terms deliveries made according to Petroleum Administrative Order N o . 1 , an order of delivery priorities to be followed by dealers in case of acute shortages. T o solve the maldistribution problem discussed above, P A W , without warning to O P A , issued an amended P A O 1 , a completely new order, which applied the historical sales formula all the way down the line to dealers. All suppliers were to apportion their oil to their customers (dealers) according to their 1942 purchases. T h u s , a dealer whose customers had been cut would have more oil than he needed while one whose customers had not been cut would not have enough oil for his customers. P A O 1 conflicted sharply with the spirit and purpose of rationing. It tended to convert ration coupons into "hunting licenses." It distributed oil contrary to the rationed demand. It was issued in complete disregard of consumer need and the rationing program. O P A remonstrated by a letter from the administrator, without effect, as follows: Mr. Ralph K. Davies Acting Petroleum Administrator for War Petroleum Administration for War 6654 South Interior Building Washington, D.C. Dear Mr. Davies:

February 4, 1943

W e have been examining Petroleum Administrative Order No. 1 , as Amended February 1 , 1943, with great care since receipt of a copy of the Order on February 2. W e regret greatly that we were not advised of the proposed order prior to its issuance so that we could have raised certain problems in advance rather than after the fact. At one of its weekly meetings in June or July of last year, the W a r Production Board in considering Limitation Order L-70 specifically rejected the principle of freezing the competitive status quo when a coupon rationing system is in operation. At a subsequent meeting of the Board, the Office of Price Administration was instructed to ration fuel oil on the basis upon which we arc now rationing it. It appears to me that the plan embodied in your new order is subject to precisely the same objections as the plan which was rejected by the War Board; namely, that when supply is short, rations are de facto determined by suppliers and dealers. In other words, in such a situation, the quantity of fuel

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oil a consumer may purchase depends, not upon his need as determined by the government, but upon his relationships with the dealer or supplier. Beginning in February, 1943, P A W insisted that W P B give it complete control over distribution, including the direction of rationing. O P A , of course, fought for its flow-back system and against the separate distribution controls imposed on the flow-back system by P A W . Interestingly enough, O P A was supported in its fight by one or two of the major oil companies, apparently because the leaders of those companies had rare qualities of economic statesmanship and were capable of seeing an interest broader than their own. At least, so some of the rationing officials thought. W P B , at the suggestion of O P A , asked the Bureau of the Budget to mediate the dispute. T h e Bureau of the Budget was about to make a recommendation to W P B when P A W got a surprise hearing before W P B , on June 8, 1943. A t this meeting, M r . Ickes accused O P A of failing to provide adequate controls and failing to cut demand to the supply. H e demanded complete control over rationing policy—OPA to be only an administrative agency to handle ration mechanics. He demanded that "the Petroleum Administration for W a r , the agency charged by the President with responsibility for Petroleum supply, must continue to exercise complete authority to supervise the distribution of petroleum products within the petroleum industry down to that point at which petroleum products move directly to a consumer." β O P A asked for a few days to prepare an answer and countered by saying that it could not continue petroleum rationing unless changes were made in line with the Bureau of the Budget proposal. Specifically, O P A insisted upon rationed demand as the basis for allocation of oil and gasoline within the industry . M r . Nelson's decision, contained in a letter of July 1 , was a mild victory for O P A . P A W was to be responsible for distribution within the industry but was to follow the pattern of rationed demand. O P A was to control rationing policy, advised by a petroleum rationing policy committee composed of all interested agencies (principally P A W , W F A , O D T , O C R , and W P B ) . In case of any dissent, O P A was not to act for forty-eight hours, pending an appeal to M r . Nelson. O P A had an understanding with W P B officials that Mr. Nelson would clarify P A W ' s authority to control distribution within the industry in accordance with rationed demand so as to prohibit the establishment of quotas below the primary supplier level (importers and refiners). Below that level, the flow of coupons (i.e., rationed demand) would determine the allocation of rationed petroleum products. Disregarding M r . Nelson's decision, P A W began a revision of Di-

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rective 59, to be issued July 5. T h e rationing officials obtained a copy of the draft from friends in the industry. T h e proposed revision of Directive 59 made no attempt to cam· out Mr. Nelson's orders to distribute oil within the industrv 011 the basis of rationed demand. O P A wrote to M r . Davies, the deputy petroleum administrator, suggesting, that in view of Mr. Nelson's decision, O P A be consulted before the revision was issued. The reply was prompt. Mr. Davies said: Directive 59 prescribes certain terms governing the activities of primary and original suppliers engaged in the petroleum industry in District One. . . . Under these circumstances it is apparent that the Directive deals only with intra petroleum industry matters and as such is a matter for consideration and action solely by P A W . . . . Please let me know if there remains any confusion on that score.7 T h e rationing officials complained to friends in W P B and on July 29 repeated their request to Mr. Davies. He did not reply until August 23 at which time he stated that he doubted if there was anything he could add to his previous memorandum. T h e rationing officials also appealed to officials in the Anti-trust Division of the Department of Justice, but the Department of Justice had granted immunity to the petroleum industry when Directive 59 was first issued. Attempts to get the revised P A O 1 rescinded as contrary to Mr. Nelson's decision met with P A W ' s point-blank refusal. Revised P A O 1, it will be remembered, established the historical sales pattern throughout the industry. A letter written to Mr. Nelson complaining about these things and asking him to enforce his decision to have rationed petroleum products allocated according to rationed demand was not even answered. Mr. Nelson did not feel strong enough to "tangle" with Mr. Ickes. Mr. Bowles, recently become O P A Administrator, was for appeasement of industry and the supply agencies and so would not take up the fight. Mr. O'Leary, the first deputy administrator for rationing, resigned in October, 1943, and the new deputy administrator took over on November 1. He was a man previously associated with the petroleum industry, and he advocated the doctrine of appeasement of industry and the supply agencies to an extreme degree. He presided over his first petroleum rationing policy committee meeting (part of Mr. Nelson's decision) on November 6. Although it was not on the agenda, and the petroleum rationing officials had no idea that the subject would come up, P A W representatives complained about OPA's fight against the revision of Directive 59, not yet approved by W P B . T h e new deputy administrator asked if Directive 59 concerned distribution within the industry and was told it did. Whereupon he said it was none of OPA's business, and told the P A W rcpre-

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sentatives to go ahead and issue it. He informed the chief of the fuel rationing division that he could file a minority report. Revised Directive 59, establishing historical allocation even more firmly than the original, was issued, with M r . Nelson's approval, three days later, November 9, 1943. Part of the conflict between O P A and the supply agencies and part of the consequences flowing from that conflict reflected a jurisdictional dispute. T h a t is to say, the conflict was not merely one between consumer and producer points of view but also a conflict of jurisdictions. P A W had complete authority over the oil industry (subject, of course, to a theoretical control by the chairman of W P B ) , but O P A had legal authority to require all transfers of product within the industry to be accompanied by an exchange of ration currency and authority to enforce such requirements by reports, record-keeping standards, and inspections. T h e legal authority of W F A over food rationing was complete, and W F A could legally interfere with food rationing at any time in any way. T h e industry divisions in W P B , to the extent that they could influence or control the decisions of W P B , had similar power over other rationing programs. Because of this jurisdictional situation, it was necessary for the rationing authority and the supply agencies to work closely together. W h e n a new commodity czar was to be established, O P A intervened to try to get such relationships worked out in advance. Thus, when the executive order to establish P A W was being drafted, the O P A general counsel sent a memorandum to Justice Byrnes outlining O P A ' s position. He said: John [Hanm, the OPA Senior Deputy Administrator] and I have interested ourselves in this issue not so much to try to solve the organizational problem, but to bring about a rapprochement between Leon [Henderson] and the Secretary [Ickes]. There should be no differences between them, especially now. Basically they are like-minded, and in many instances need each other's support. W h e n a new commodity czar was established, lie or his personnel immediately acquired a strong desire to control rationing—to work out rationing plans and procedures to hand to O P A in a "cellophane package." O P A was only to be an administrative agcncy to administer the local board system. W h e n complete authority over mbber was concentrated in the Office of the Rubber Director, the Rubber Director as sumed that he was in charge of all aspects of rationing which affected rubber-borne transportation—i.e., tires and gasoline. Thus, when questioned by the T r u m a n Committee in November, 1943, with regard to the

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administration of nation-wide gasoline rationing, Mr. Jeffers, the Rubber Director, boasted, " I t must be common sense administration, and if I continue to handle it, it will be common sense administration." 8 He told the committee that he would be able to handle the local boards and keep some boards from being too strict. Mr. Jeffers felt he could communicate with local boards directly and did so. He publicly promised western salesmen more gasoline than they were getting (they were getting the same as eastern salesmen), and over the protests of the entire O P A ordered that the mileage ceiling for western salesmen be increased by 100 per cent. T h e desire to take over immediately the planning of a rationing program experienced by the eager novices in a newly created supply agency was particularly noticeable when full authority over food was transferred to the Department of Agriculture at the end of 1942. T h e Department of Agriculture immediately began to establish a rationing planning unit, and representatives of that unit, big and little, began to plague the lives of O P A food rationing officials seeking information about rationing. The Department of Agriculture showed no immediate signs of delegating full food authority to O P A . T h e situation existing at the time and the reaction of O P A food rationing personnel to such a situation is well illustrated by the following memorandum from the O P A general counsel to Justice Byrnes (Director of O E S ) . December 23, 1942 M E M O R A N D U M T O MR. J U S T I C E B Y R N E S From: David Ginsburg Subject: Relationship between the Food Administrator and OPA Trouble is brewing that should be headed off. It's the same old story of the czar and his staff emboldened by newly acquired authority and thirsting for information, getting into the hair of the administrative agency. W e went through this fight with W P B in connection with sugar rationing. W e have had similar troubles with each new czar as he has been appointed. Now we are faced with precisely the same issue in connection with food rationing. This time it is more important than the others. Most of us here feel that we know how to ration food, but all of us are aware that unless this program is handled properly what little we have left to lose will be lost. The Food Administrator is now setting up a ration planning unit in the Department of Agriculture. Little by little he seems to be moving into the field of active supervision of our work. This is not a matter of jurisdiction or prestige or pique. W e advise you as a simple fact that food rationing will not get done if Wickard seeks to handle it in this way. W e are perfectly willing to discuss our plans with him, and explain where we are going and how we propose to get there. But once a decision has been made to ration, and an appropriate Directive issued to us (similar to the Directive issued by W P B in connection with sugar and other programs) we must be free to get

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the job done in the way we see best. I doubt whether anyone outside of O P A realizes the monumental job presented by the rationing of food in this country. It is not a tolerable position to require Harold Rowe and his top staff to drop what they are doing and explain to every $2600 clerk in the Department of Agriculture that we have considered his objections, and why we must do what we propose to do. In other words, once rationing has been dccidcd upon, we must be left free to devise our own rationing plans. W e are faced at the present time by what is in effect an ultimatum on the part of our staff. They want no part of the responsibility for rationing unless the conditions to which I have referred are met. Unfortunately, neither Leon nor anyone else here is in a position to meet their conditions. But all of us are agreed that some clarification is imperative, and that promptly. I don't want to make these complaints seem strident, but I assure you that sound administration is not possible under existing arrangements. This is not to say that Secretary Wickard has any other views. Perhaps he is in agreement with us. B u t I think it would be fruitful if you and Ben, John, Paul O'Leary and myself would meet for a half hour to discuss the problem. As usual, time is important because the program is crystallizing fast. There is bound to be an open rupture unless we forestall it by some clearly defined agreement. I have already telephoned Miss Connor and asked her to set the matter of a meeting before you. O n e of the serious jurisdictional problems of the relationships with t h e supply agencies was their frequent failure to k e e p O P A i n f o r m e d . O P A had to distribute the a m o u n t of a rationed c o m m o d i t y certified to it by the supply agency as being available to civilians within a defined period. T h e a m o u n t of this civilian supply was, of course, the principal determinant of the a m o u n t of the rations allowed. P A W i n f o r m e d O P A of the a m o u n t of gasoline a n d f u e l oil available for civilian c o n s u m p t i o n a t the same time it i n f o r m e d the p u b l i c — n o sooner. E v e n O C R , w i t h w h o m O P A ' s relations were generally very cordial, sometimes neglected to k e e p O P A informed. N a h l reports in his Diary on A u g u s t 8, 1944, t h a t in a meeting with O C R that morning, O P A learned f o r the first t i m e that the 300 million shoes production figure f o r 1944, against which t h e shoe rationing officials h a d been working, included shoes f o r military personnel within the U n i t e d States and shipments to the territories as well as shoes to meet rationed d e m a n d . Failure to keep O P A informed was particularly objectionable, in fact, inexcusable, w h e n the supply agency administered regulations which a f f e c t e d or overlapped rationing regulations. P A W was the chief offender in this regard. P A W officials seemed to h a v e a c o n t e m p t u o u s attitude toward both rationing officials and rationing regulations. P A W insisted on maintaining Directive 59 and P A O 1, w h i c h directed the distribution of oil within the industry, at the same time that the flow-back of ration coupons did the same thing; and the two distribution systems did not

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agree. Prior to the installation of fuel oil rationing, W P B issued Limitation Order L-56 to conserve stocks of oil until the rationing program could take over. This order forbade dealers to deliver fuel oil to certain classes of consumers, such as persons who had never used fuel oil before and persons who had coal or wood stoves which could be used instead of oil stoves. W h e n the fuel oil regulations (Ration Order 1 1 ) were installed, P A W (then O P C ) , over O P A protest, continued L-56 in effect, although it was in no sense needed because Ration Order 1 1 denied oil or coupons to those consumers and made it unlawful to sell oil to anyone who did not present coupons. W h e n O P C became P A W , L-56 became Petroleum Distribution Order N o . 1 3 ( P D O 1 3 ) shortly thereafter. Like all P A W orders, P D O 1 3 allowed exceptions upon individual application to P A W in Washington. Thus Ration Order 1 1 had to provide for the issuance of rations to any person in one of the prohibited classes who presented a rationing board with a PAW-granted exception to P D O 1 3 . These exception notices were given by P A W to the individuals, not to the local boards. P A W required industrial users of fuel oil to file a report on the basis of which P A W determined whether they could convert to coal. If P A W found this possible, it issued them a notice requiring them to convert. It did not inform O P A , and so boards would continue to issue rations to such persons even though they were not legally entitled to any oil. P A W contemptuously overlooked OPA's function of issuing rations to such a person, the only effective means whereby an order to convert could be implemented, and left it to the consumer's conscience to carry out the P A W conversion order. Although the restrictions of P D O 1 3 were incorporated in Ration Order 1 1 at the insistence of O P A that one government agency should not issue orders contrary to what another government agency was doing, P A W habitually amended P D O 1 3 and other orders without informing O P A . O P A found out about these changes unofficially through friends in W P B or the industry and then insisted that Ration Order 1 1 be kept in harmony with P A W orders. For example, O P A learned early in January of 1943 that P A W was going to amend P D O 1 3 to ban deliveries of oil to certain types of users. This action was being taken as an hysterical reaction to a supply emergency which P A W had not anticipated. O P A immediately went to work to persuade P A W that Ration Order 1 1 should be kept in harmony with P D O 1 3 . T h e issue went to the highest levels. O P A also persuaded P A W that rations should be reduced rather than revoked outright. T h e result was a joint program in which O P A recalled and reduced certain industrial rations as certified by P A W . If O P A had not intervened, P A W would have published an

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order banning deliveries to certain types of industrial users who would have had, in spite of this ban, large blocks of coupons issued by O P A with which to purchase fuel oil. OPA's theory of the proper relation between O P A and the supply agencies was very simple. In the words of the first deputy administrator for rationing, the supply agencies should " ( 1 ) determine the need for rationing, (2) request the O P A to ration, ( 3 ) certify to available supplies for as long a period as possible, and (4) move to the sidelines." 8 O P A tried to get such relations established in advance when each new commodity czar was being created. Failing in these preliminary efforts, O P A enlisted the support of the Bureau of the Budget, which intervened as mediator and tried to work out "treaties" acceptable to both sides. T h e Bureau finally succccdcd in working out a "treaty" between O P A and W F A which left the rationing officials free to run rationing. T h e suggestions of the Bureau with regard to O P A - P A W relations, however, were completely disregarded by P A W , and M r . Ickes presented to W P B on June 8, 1943, his own plan for complete domination by P A W . O P A at that time insisted on the arrangement worked out by the Bureau of the Budget, and M r . Nelson's decision of July 1 was in line with the Bureau's recommendation. Because M r . Nelson of W P B did not feel himself to be in a position to take a strong stand with regard to M r . Ickes, conflicts with P A W were not clearly resolved within the administration in a forum higher than both O P A and P A W . Consequently, conflicts between O P A and P A W tended to be aired in public. Specifically, OPA's opposition to P A W policies brought forth from P A W frequent public criticism of petroleum rationing, a constant insinuation that fuel oil cuts were too deep, during 1942 an insinuation that fuel oil rationing and nation-wide gasoline rationing were unnecessary, and public accusations that O P A was bungling the job. W h e n O P A acquired a food czar in the form of W F A , it also acquired a strong supreme authority, over both O P A and W F A , in the Office of Economic Stabilization (created October 3, 1942, bv Executive Order 9250, 7 F . R . 7 8 7 1 ) under Justice Byrnes. Conflicts between O P A and W F A were clearly and definitively resolved by Justice Byrnes without publicity harmful to O P A . His authority was accepted by all and challenged by no one. W h e n Mr. Bowles took over O P A late in 1943, one of his strong policies was that O P A must avoid public fights with the supply agencies. Specifically, O P A must get along with P A W so as to avoid the adverse public criticism by that agency. Mr. Bowles' objective was to rescue OPA's public relations from the low ebb to which it had sunk—a worthy ob-

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jective and a natural one for an advertising man like M r . Bowles. M r . Bowles' policy with regard to P A W relations was applied with startling suddenness by his newly appointed deputy administrator. W i t h regard to food rationing, the situation was not the same. T h e conflict between O P A ' s consumer-mindedness and W F A ' s industry-mindedness became more intense. Whereas the chief conflict in the first half of rationing had been with P A W (earlier, O P C ) , in the last half of rationing it was with W F A . T h e reason for this fact is that the conflict with W F A could be carried on within the administration, in O E S (later, O W M R ) , and did not become a public squabble which would have deteriorated O P A ' s public relations contrary to M r . Bowles' objectives (and, most likely, the true objectives of O P A and the nation). T h e frequency and importance of the conflicts between O P A and W F A during the last year of general rationing is briefly outlined in the following memorandum.

MEMORANDUM TO:

Chester Bowles Administrator S U B J E C T : One-year record of food rationing actions in which differences of opinion arose between W F A and OPA showing the date of the matter involved and the outcome. You have asked for a one-year record of rationing actions in the Food Division where differences of opinion arose between W F A and OPA which had to be resolved by the Office of Economic Stabilization or the Office of War Mobilization and Reconversion. The following is a list of such actions showing in summary form the date, the matter involved and the outcome: ι . July 1944—Supplement to War Food Order 61 (covering rationing of meat) was issued by W F A prohibiting rationing of commercial or utility grades of beef. OPA protested to O E S on the exclusion from rationing of commercial grades, but indicated agreement with the removal of utility grade from rationing. On August 2, 1944, W F A , pursuant to decision of OES, amended its order to apply only to utility beef leaving authority in the OPA to continue rationing of commercial grade. 2. September 1 9 4 4 — W F A , without consultation with OPA, obtained agreement from O E S that all canned vegetables be removed from rationing and then wrote to OPA instructing that such action be taken. OPA objected to removal of all canned vegetables from rationing, insisting that at least the major canned vegetables, corn, beans and peas, should remain under control. OES sustained W F A . OPA removed all canned vegetables from rationing September 17, 1944 pursuant to such direction. 3. November and December 1944—(a) W F A proposed amendment of sugar directive which would give to W F A the authority to determine allocation of sugar among various civilian users. (b) OPA proposed restoration of all meats, with certain minor exceptions, to rationing. (c) OPA proposed restoration of most canned vegetables to rationing.

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OPA, before O E S , objected to item (a); W F A objected to items (b) and ( c ) . It was decided, and on December 26, 1944, the decision was put into effect, that all meat and most canned vegetables be restored to rationing. With respect to amendment of the sugar directive, although no specific decision on the point involved was made, the proposed directive change was not put into effect. 4. March-April 1 9 4 5 — O P A proposed that a slaughter control program be instituted to relieve the increasingly serious meat supply situation. W F A objected to institution of such a program before O W M R . It was finally decided that OPA would undertake the institution of a slaughter control program, and W F A was directed to issue proper authority. 5. April 1 9 4 5 — O P A proposed that although no slaughter restrictions were to be imposed upon federally inspected slaughterers, it was essential that livestock be allocated among such slaughterers in order to preserve adequate distribution of meat. This was opposed by W F A . O W M R decided that livestock allocation would not be undertaken but that instead a flexible set-aside program would be instituted by W F A to increase set-aside against slaughterers whose slaughter increased as against last year. A modified program was put into effect by W F A . However, further representations are now being made by OPA to require W F A to put into effect the plan originally agreed upon in O W M R instead of the modified one actually put into effect. 6. May 1 9 4 5 — W F A proposed institution of a system of quotas on deliveries by sugar refiners during any calendar quarter. At first, OPA disagreed with the proposal. However, after discussion at O W M R , OPA agreed to institution of such quotas. There was disagreement between OPA and W F A as to the manner in which the sugar allocation for the last three quarters of 194 ç should be divided, by quarters, and the industrial user percentages which could be promulgated if such allocation remained as proposed. W F A roposed an allocation for second and third quarters of 2,770,000 tons; and elieved that figure would permit industrial user percentages of 50% and 6 0 % . OPA believed that a 2,800,000 ton allocation would be necessary to permit establishing such percentages. O W M R finally decided, and the OPA has complied with such decision, that the percentages and the amount of allocation proposed by W F A should be accepted as final.

E

F r o m the standpoint of formal administration, the shift of the consumer-producer conflict from P A W to W F A has a very interesting ramification. P A W , which never had any formal legal authority over O P A rationing, achieved rather complete actual authority over O P A rationing because of the "political" strength of M r . Ickes and the "political" weakness of the common superior (and the political-administrative proficiency of an old-time federal administrator—Mr. Ickes). W F A , despite its complete formal legal authority over food rationing, had little actual authority over food rationing because of the "political" strength of a common superior—Justice Byrnes; the formal legal delegation of authority to W F A was quite meaningless. W F A could have argued for its point of view before Justice Byrnes without that legal delegation of authority, the

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same as any other interested federal agency. T h e realities of an administrative situation are seldom to be gleaned from its formal documents. T h e conflict with the supply agencies may be attributed to a conflict between consumer and producer interests and to a jurisdictional dispute. There is another possible explanation, another contributing factor. OPA's relations with the emergency agencies which were not a part of the executive departments were quite cordial, or at any rate not extremely bad. T h e two agencies with whom O P A rationing had most trouble, W F A and P A W , were established within the Department of Agriculture and the Department of Interior and were partly staffed with permanent employees of those departments. Those two agencies were much more conscious of jurisdictional position and administrative politics. Whereas the emergency war organization would eventually vanish without leaving a trace, those two departments would go on indefinitely. Personnel of the regular departments were resentful of the authority and high salaries of the war appointees in the emergency organization. Unquestionably they felt that they could have met the emergency with as much or more skill than the novices brought in to run the civilian war effort. Unquestionably they were piqued by the insult implied in the establishment of a completely new governmental organization to handle the emergency. T h e great drive on the part of the Departments of Agriculture and Interior to obtain important war-time powers and functions is understandable. T h e Departments of Agriculture and Interior well understood the political importance of good publicity. They needed good publicity for the post-war period when the emergency organization would no longer exist. Both W F A and P A W worked hard and consciously for a favorable press. T h e y did not want to take responsibility for unpopular actions, and they wanted all the credit for popular ones. For the first year of rationing, P A W constantly issued optimistic press releases, and O P A had to keep at P A W all through the war to keep a pessimistic note in their press releases. P A W optimism was one of the greatest handicaps which the petroleum rationing officials had to face. It was almost impossible to encourage conservation and self-denial, and also strict compliance with rationing rules, in the face of P A W ' s continual optimism with regard to supply. It was a great temptation for the politically-minded Department of Interior to blame the supply crisis on other agencies (as M r . Ickes blamed it on O P A at the W P B meeting of June 8, 1 9 4 3 ) . W h e n W F A , with O W M R approval, ordered O P A to remove all canned vegetables from rationing in September of 1944, W F A issued a press release about this event, taking full credit for it. T h e O W M R also issued one

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pointing out that the great supply activities of W F A "had made today's action possible." W h e n canned vegetables were restored to rationing about three months later, at OPA's insistence, Mr. Bowles announced this resumption of rationing to the public, although this decision was within W F A ' s legal authority and W F A had to "order" O P A to resume rationing (on the command of O W M R ) . T h e removal of canned vegetables from rationing had resulted in a large backlog of food rationing stamps in the hands of consumers, and O P A had to take full and sole responsibility for cancelling those stamps—a tremendously unpopular action at the moment. O P A got along very well with the Office of Defense Transportation ( O D T ) , although there was an opportunity for a real conflict of jurisdiction with O D T . O D T determined the eligibility and the amount of gasoline rations for all commercial vehicles of the country, OPA merelv issuing the coupons. O P A got along quite well with O C R and also the Office of the Rubber Director. Although O P A had serious disputes with the W P B industry divisions, OPA's point of view was usually sustained by the higher authorities in O C R and W P B . T h e serious conflicts were with W F A and P A W , and those agencies were established within executive departments. Furthermore, the most serious conflicts were with the agency which was headed by a cabinet officer—PAW. If P A W had been organized outside of the Department of Interior, without the Secretar)· as its head, there would still have been consumer-producer conflicts, but they might not have been so keen; the incentives would not have been so great.

Chapter 9.

T H E BUREAU OF T H E BUDGET

THE INFLUENCE of the Budget Bureau on the rationing rules resulted from its veto power over public-reporting requirements and forms. T h e Bureau's power over expenditures had little, if any, effect on the rules. According to the Federal Reports Act of 1942 (effective in December), no form or reporting requirement in any federal regulation which requires information from ten or more members of the public has (1947) legal effect until approved by the Bureau of the Budget. T h e Bureau delegated this responsibility to its division of statistical standards. All public forms and reporting and record-keeping requirements of any one rationing program were subject to review and approval or disapproval by some one person in this division to whom that program was assigned (with an occasional appeal to his superiors). T h e purpose of the Bureau's review was twofold. T h e first was to coordinate public information gathering activities. " T h e act gave to the Bureau of the Budget authority to investigate the needs of Federal agencies for information and responsibility for coordination of Federal reporting services." 1 Thus, the Budget Bureau was to see that information already available was not required from members of the public and to see that federal agencies really knew what they needed in the way of information. T h e Budget Bureau also completely reviewed forms and reporting requirements from the standpoint of their "technical adequacy." In its 1944 report to the Senate Small Business Committee, the Bureau emphasized this technical review as follows : Careful attention is also given to the content and technical adequacy of a form. The instructions and questions must be concise and clear. TTie format must be simple and easy for the respondent to follow. The data must be presented in such a manner that the tabulation process is made easy. They must also conform to customary business practice in record-keeping.2 T h e "coordination" function of the Budget Bureau with regard to forms was accepted by everyone, although perhaps grudgingly by a few. However, the notion that the statistical standards division of the Bureau

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of the Budget had experts in the field of statistics and form design who were superior to those in the operating agencies was accepted by almost no one. Especially was this fact true in the rationing department of O P A . Most rationing forms were program forms (individual applications, compliance reports, etc.) which depended for their "adequacy" upon a very detailed knowledge of very technical programs. One will look a long while before he finds one former member of the rationing department who will agree that Bureau of the Budget clearance of rationing forms for "technical adequacy" contributed a single thing other than delay. For program forms, the function of coordination had absolutely no applicability. T h e attitude of rationing personnel toward Budget Bureau review of rationing forms for "technical adequacy" can be more easily understood when one understands the clearance process through which a form had gone by the time it reached the Bureau. T h e form would be designed originally in a specialized form preparation unit or a statistical unit in a rationing branch. W h i c h type of unit originated the form depended upon whether it was a statistical form (report) or a program form (application, e t c . ) . T h e form received a complete review in the branch from various specialized personnel including persons specialized in procedures and systems. W h e n it left the branch it was a branch product representing the conjoint efforts of a group of people. If the form were a statistical form, it first went to an analyst in the departmental statistics division who reviewed it for statistical "technical adequacy." It then went to an analyst in the rationing department's program planning division who reviewed it for "technical adequacy" in general. If the form was a program form (rather than a statistical form) it was reviewed by an analyst in the program planning division only. ( T h e form was also reviewed for certain specialized purposes by "currency control" specialists in the rationing department, and it was completely reviewed by the rationing legal division and often by the enforcement department.) T h e form was then taken by the analyst in the statistics division to an agency-wide statistical standards office where it was reviewed for "technical adequacy" by an analyst assigned to the program from which the form came. T h a t analyst then sent the form to the corresponding analyst in the statistical standards division of the Bureau of the Budget who again reviewed the form for "technical adequacy." T h e only persons who had the necessary technical knowledge (knowledge of programs and program needs) to determine if the form was "technically adequate" were the people who originated the form in the branch. Furthermore, the review was review by an individual of the

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"technical adequacy" of the work of a group—the rationing branch. This aspect of the review was particularly irritating to branch personnel. The persons who reviewed the forms for the Budget Bureau came and went during the war. The reviewing positions were not filled from any civil service register of form experts nor is there such a profession outside of government. (The same was true of persons who occupied the reviewing positions in the OPA reviewing process.) The persons who filled these positions were assumed to have acquired the qualifications and characteristics of the positions by virtue of occupying them. Under these conditions, the review for "technical adequacy" was often, if not always, a farce. (Of course, improvements can always be made until perfection, a non-human condition, is reached.) Some concrete cases of Budget Bureau form review will illustrate this point and serve further to explain the reaction of rationing personnel to the Budget Bureau review for "technical adequacy." MEMORANDUM December 1, 1943 TO: FROM: SUBJECT: Bureau of the Budget This is just to call your attention to three of our latest encounters with the Bureau of the Budget: (1 ) The Bureau refused to clear an amendment granting increases in baseperiod use to industrial users of fats and oils whose use during the fourth quarter of 1942 had been restricted by WPB Order M-71, unless the amendment were changed in the following way: The amendment originally required that they report the amount of oils used during the fourth quarter of 1942, and, written in a separate section, that they report the amount of oils used during the fourth quarters of 1940 and 1941. They insisted that the two separately stated requirements be combined in one, so that we requested in a single sentence the use during the fourth quarters of 1940, 1941, and 1942. Reasons for the insistence on the change are unknown. ( 2 ) The Bureau refused clearance on the amendment setting up the new reporting requirements for primary distributors under Ration Order 16 unless we changed the word "amounts" to the word "quantity" in a recordkeeping requirement. Reason again unknown. (3) I do not have the full details on the third instance. The story very briefly is this: The Meat Branch in September prepared new forms R-1606 and R-1609 which started final clearance in October. The Bureau insisted that a third form R-1607 be added to take care of a small intermediate class of primary distributors and changed various other and sundry features of the forms to the point where now, November 30, those forms which were scheduled to have been ready for use on or about November 25, will now not be ready for use until January 1 at the earliest. This was done with full knowledge on their part that our supply of the original forms R.-1606 and R-1609 was insufficient for the reporting periods ending in November and that we

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will now be unable to secure any reports for the period November 1 on until January 15, or February χ at the earliest.3 On August 6 there was submitted to your office, for clearance under the Federal Reports Act of 1942, a proposed amendment to the Sugar Rationing Regulations, providing for increased allotments of sugar for certain industrial users. In three places the amendment read substantially as follows: "Application shall be made by the registering unit on OPA Form R - 3 1 5 and shall show: *

*

*

*

*

*

*

( 3 ) That it has the facilities to produce an additional quantity of such products." On August 7 we were advised that the Bureau of the Budget would not clear the amendment unless the words " A statement" were inserted in three places in the amendment immediately before the phrase "That it has the facilities." Upon hearing of this, I told my staff that I would acquiesce in the change being made if, in their opinion, that would speed the issuance of the amendment—an all-important consideration. It was for this reason only that we made the change insisted upon by your staff.4 W h e n the reporting requirements of the Pacific Northwest firewood rationing program were sent to the Budget Bureau for its approval, a high Budget Bureau official who had been raised in the Northwest at first refused to approve them. H e said that there were more trees, hence firewood, in the Northwest than any place else in the country. He said that if he had a cross-cut saw he would go out there and cut the wood himself. T h e director of the fuel rationing division accepted the rejection of the program, but indicated that O P A would have to inform the people of the Northwest that the Budget Bureau had found firewood rationing to be unnecessary out there. T h e Budget Bureau hastily approved the program. One of the fuel oil application forms revised in 1945 was at first rejected by the expert in the Budget Bureau because it contained the word "automatic." This expert said that word was too technical for many people to understand properly. A few days later, fuel rationing personnel discovered that the word "automatic" was included in the list of "basic cnglish" words—words most commonly used and universally understood. A n excellent example of the nature and competence of the Bureau's review for "technical adequacy" is the history of shoe inventory reports. 5 T h e shoe rationing branch needed an occasional survey of dealers' inventories in order to know whether the rationing program was releasing shoes to the public too slowly or too fast. If shoes were released too fast, inventories would be used up, local shortages would develop, and ra-

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tion stamps would become mere "hunting licenses." T h e shoe branch also felt it needed an inventory report for enforcement purposes. Dealers complying with the regulations would have a constant inventory in stamps (and ration bank balances, accounts receivable, etc.) plus shoes. (This rationing principle as it related to fuel oil rationing is thoroughly discussed above, beginning page 1 3 . ) Therefore, the shoe branch needed an inventory report which would show more than just shoes on hand; it also needed to show stamps on hand, stamps owed to suppliers, stamps owed to the reporting dealer, ration bank balance, shoes receivable for stamps already paid, and shoes owed for stamps received in advance of delivery. In short, to serve the purpose of accountability, the inventor}' report had to be a balancing report. Although the shoe rationing branch recognized that the inventor)' report was to serve both a statistical and an accountability function, for some inexplicable reason it prepared an inventory report form which asked nothing about stamps on hand or ration bank balances nor the other items in the nature of accounts receivable and payable mentioned above. This form was presented to the Bureau of the Budget early in August and was rejected. T h e Bureau said: Shoe shipment reports are available since the beginning of rationing. Ration Bank reports are also on hand for the same period. Perhaps the use of these data, indicating the inflow and outflow of shoe stocks, has not been thoroughly explored. Neither of these suggestions related in the remotest wav to either the statistical or the accountability purpose of the inventory—namely, how many shoes are on hand in dealers' stocks and to what extent each dealer's inventory of shoes plus stamps (and bank balances, etc.) agreed with his original inventory. Shoe rationing officials spent several stormy sessions with Budget Bureau personnel and finally received approval of the inventory on December 2, 1943. Although the inventory report was justified partly as an accountability measure, the glaring accountability deficiencies of the form were not corrected nor even mentioned in the sessions. The next year the shoe rationing branch planned another inventory. Work was begun February 1, 1944. In this inventory form the accountability deficiencies of the previous inventory form were corrected, and the rationing officials frankly recognized that the accountability purpose of the inventory report was just as important as the statistical one. T h e branch, the enforcement department, the field rationing personnel, and the field enforcement personnel all agreed that the report must be filed by every dealer—that complete coverage must be obtained. From

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the standpoint of accountability, complete coverage was obviously indicated, given our ideas of fair pia)'. T o hold only a sample of dealers responsible for complying with the inventory accountability provisions of the regulations, and possibly subject them to enforcement action, would smack of arbitrariness and would certainly get a violent reaction from the sample of dealers selected. In fact, the shoe branch consulted several members of the industry, and they all insisted upon complete coverage. O n the other hand, if the inventory report had only a statistical purpose, a sample survey of dealers would actually be the best technique. " C o m p l e t e coverage" is usually a statistical illusion, while a carefully prepared sample survey can reduce inaccuracy to a predictable maximum. O n e can " k n o w " the value of figures obtained from a sample. One can only " f e e l " the value of figures obtained from "complete coverage." T h e 1944 inventory report form was submitted to the Budget Bureau on April 10. It was justified both as a statistical and an accountability measure. T h e Budget Bureau rejected complete coverage and insisted on a sample survey. Each time the shoe branch met one objection to complete coverage, the Budget Bureau would come back with another. This process went on for exactly three months. Each time we would meet the objections which had been raised to the inventory, some other point would be brought up as a barrier to complete coverage. At one point it became almost a game—so it seemed to us—on the part of the Bureau of the Budget to attack at another point just as soon as wc had met the attack at one point. This method of clearance became extremely burdensome to people in tne Shoe Rationing Branch because the specific objections raised on each question would take a good deal of time for preparation. For example, we wrote to all of our regional offices trying to get information about how inventories checked out when the inventory responsibility of dealers had been analyzed in connection with ration currency applications. The information took some time to obtain from field offices, and we incorporated this in a memorandum on June 28. Each time these objections would be raised, we tried to be reasonable in giving all of the necessary information, and a casual inspection of the various M E M O R A N D A O N F O R M S will indicate that a great deal of time and effort was devoted to this project by many Government officials.® On June 6, a high official of the Budget Bureau called the assistant deputy administrator and informed him that the O P A enforcement department did not have enough men to handle the number of cases of inventory discrepancy which would be shown up by complete coverage (Diary). W h e n O P A suggested the transfer of some enforcement personnel from food and gasoline to shoe rationing, it learned on July 1 that an even higher official in the Budget Bureau would resist such a

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transfer ( D i a r y ) . O n July 5 a meeting of the high officials of both O P A and the Budget Bureau was held. At this meeting, the O P A officials tried to convince the Budget Bureau that O P A had a big enough field staff to handle the job if complete coverage were allowed. On July 10, the Budget Bureau approved the inventory report with complete coverage, three months after it had been first submitted. In its approval the Budget Bureau insisted that each dealer with an inventory discrepancy must be investigated and that reports be made to the Budget Bureau showing that this had been done and the disposition of each case investigated. As N a h l says: The position in which we found ourselves was this: W e had obtained approval for a third shoe inventory to give us both the statistical information and accountability data, and we were required in the approval for the project to check the inventory responsibility for every shoe establishment in the United States. This was a gigantic undertaking, and the reporting requirements [to the Budget Bureau] were, we felt, unnecessarily burdensome.7 For the July 3 1 , 1945, inventory, the shoe branch began preparations in December of 1944. T h e data from this inventory was desired by several government agencies, and the justification for it was presented to the Budget Bureau jointly, on April 30, 1945, by O P A , W P B , O C R , and the Bureau of Foreign and Domestic Commerce. T h e same issue over complete coverage again raged, for five weeks, until the Budget Bureau capitulated on June 8, thereby contributing again, for the third successive year, nothing but delay. 8 N o criticism of the personnel in the statistical standards division of the Bureau of the Budget is meant. T h e form review function of the Bureau of the Budget had the same glaring lack of self-consciousness which characterizes so many other aspects of the administrative process. Congress told the Budget Bureau to clear forms, and so it went to work and "cleared" forms. All forms (and reporting and record-keeping requirements in regulations) were cleared the same way. T h e Budget Bureau did not distinguish between statistical reports and program forms such as individual applications. F o r the former, the function of determining whether the information to be acquired from the reports is already available in government files is a real function which can only be administered centrally. This function of coordination of information gathering activities is also a much needed and appreciated service to the various operating agencies. W i t h regard to program forms such as individual applications, however, on the basis of which an individual's eligibility or compliance is to be determined, the function of coordination is inapplicable on its face.

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T h e only review possible here is the review for "technical adequacy." T h e assumption of such a function is both impertinent and insulting to other government personnel. It assumes that the Budget Bureau can acquire personnel who in fact know when a form is technically inadequate. If such personnel are available, they should be designing forms in the operating agencies. In fact, however, the Budget Bureau personnel usually were not more competent in form design and analysis than rationing personnel, and, in addition, they knew very little about the rationing programs. As a consequence, their criticisms were usually trivial, and their chief contribution was delay. In the final analysis, they had to submit to the demands of the responsible officials if those demands were pressed. Another curious indication of lack of self-consciousness in the form review process was the assumption that the person automatically acquired the qualifications and characteristics of the position. Brand new employees were set to work reviewing rationing forms for "technical adequacy." One of them came to the director of the miscellaneous products rationing division and told him he wanted to learn something about shoe rationing before he began reviewing shoe rationing forms. Whereupon he spent two hours with the chief of the shoe planning section. 9 T h e Budget Bureau assumed, curiously, that O P A , (and other agencies) was a unity with a fatal bias which only a "disinterested agency" could correct. In its report to the Senate Small Business Committee it said: The act establishes methods whereby the business community and other persons affected could be assured that any particular questionnaire had been duly considered; that, in the judgment of a disinterested agency, the information it called for was necessary; that the request was as simple as possible, and went to as few persons as possible.10 Actually, the rationing branches had three form reviewing levels above them, none of which had any great love for the branches. T h e relations of branch personnel to Budget Bureau personnel were actually closer, I believe, than their relations with O P A ' s agency-wide statistical standards office ( S S O ) . This was so because Budget Bureau personnel usually had greater competence than S S O personnel and because some of the latter were frequently not loyal either to O P A or to the Budget Bureau, playing one against the other to get their way. T h e form review of the rationing department's program and statistics divisions was partially justified on the grounds of their "disinterestedness." T h e review of S S O was partially justified on an even more abstract "disinterestedness." W h e n one comes to the even more abstract "disinterestedness" of the Budget Bureau, imagination ceases to support reason. Surely the Budget

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Bureau had some interest in reviewing forms; otherwise, why review them? T h e interest of the rationing branches in rationing forms was to do the best job of rationing (protection of the consumer) with the least impact on or disturbance of normal practice. This determination is a technical one. Some rationing personnel within the branches were opposed to some of the rationing forms—forms which the Budget Bureau approved—because they thought the forms were unnecessarily disruptive of normal practice in light of the small advantage to be gained by them. Thus, the semi-annual fuel oil dealer inventory report, R-1198, was "forced" upon the fuel rationing division from above by the activities of the enforcement department. T h a t form was approved by the Bureau of the Budget without contest. T h e "formless forms" of food rationing, described above (pages 1 8 9 - 9 1 ) , were approved by the Bureau. T h e truth is that competence in administrative techniques cannot be obtained through organization, although organization may to some extent facilitate its release. Perhaps the chief significance of the Budget Bureau's review for "technical adequacy" was a dramatic one. " T h e act establishes methods whereby the business community . . . could be assured that any particular questionnaire had been duly considered." T h e very fact of Budget Bureau review, regardless of its nature or efficacy, would (and did) quiet criticism of the government's information gathering activities. T o pass an act or establish an organization relating to a problem quiets people's apprehension regarding the problem even though the problem is in no way solved thereby. T h e fact that the Budget Bureau never analyzed and rationalized its function of form review can be seen from the seven "principles of review" which it developed. These "principles" were explained in its report to the Senate Small Business C o m m i t t e e quoted above. 1. Justification or proof of need. This principle obviously relates to statistical reports—not program forms like applications. T h e "need" for an application form is determined by the obligation to apply imposed by a program. Review of the need for a specific question on a form is review of part of the program itself—not the form. 2. Availability of information. This principle states a proper function for a centralized unit. It is the function of coordinating statistical information-gathering activities of the government. It does not relate to program forms such as applications or compliance reports. 3. Coverage of form. " I n many instances attempts to get complete coverage . . . are a waste of time and money and occasion needless annoyance" (page 10). T h i s principle applies only to statistical reports — n o t program forms. T h e Bureau never even made the distinction be-

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tween a statistical inventory report and an accountability inventory report. (Shoe rationing personnel did not do much better at making this distinction.) T o the Bureau, taking a sample rather than complete coverage related to the idea of "needless annoyance." Actually, a sample report is more annoying to the persons included in the sample than a complete coverage report. They do just as much work and they also feel discriminated against. It is doubtful if sample coverage can be justified on the basis of ease and convenience. T o do so is to say to the persons in the sample, " W e have selected you to bear the full burden of this information gathering activity so that those persons not included in the sample may not be put to any inconvenience. W e are sure that you will agree that this is fair and just." It is likely that the only justification for sample coverage is a statistical one, and that, to the extent it urged sampling techniques for reasons of industry convenience, the Budget Bureau was flatly failing to implement the objective assigned to it by the Federal Reports Act of 1942. 4. Frequency of collection. T h e Bureau's idea was to keep the frequency of collection related to "the rapidity with which data can be tabulated" (page 1 0 ) . This principle also is related only to statistical reports. 5. Content of the form. This principle was the basis of the review for "technical adequacy" already discussed. For statistical forms, this principle would have to be based on the assumption that the best statisticians and form experts were in the Bureau of the Budget, which they were not. For program forms, this principle involved the Bureau in a review of rationing programs and plans, about which they knew very little. In trying admirably to restrict its function of program review (review of programs for "technical adequacy"), the Bureau relied upon the most overworked and most meaningless of all governmental distinctions—the distinction between "policy-making" and "policy implementation." In replying on July 6, 1943, to an inquiry from the food rationing division director as to the Bureau's interpretation of its form review function, the director of the statistical standards division of the Budget Bureau said; In giving effect to our interpretation we wish scrupulously to recognize the retention within the agencies of their appropriate policy-making functions and to confine our determinations to the implementation of such policies. However, if to make "policy" is to make decisions, the rationing personnel were making policy (decisions) all the time. T o design a form involves many decisions. If the writer of the above memorandum was referring to a distinction between important and unimportant decisions (the

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Budget Bureau to review only the latter), he would still have little ground for review of program forms. Rationing personnel felt that individual sentences and even words on their application forms (and other program forms) were important creations involving important decisions (hence, " p o l i c y " ) . A n assistant deputy administrator for rationing spent several days helping to plan one application form, supplying the exact wording of several of the questions himself—an extremely high "policy decision." ( W h e t h e r issuing clerks would χ out stamps removed from W a r Ration Book II at the time of issuance was a decision made in Henderson's office at a meeting of Henderson, Ginsburg, the general counsel, and O'Leary, the deputy administrator for rationing—an extremely high level "policy decision.") T h e review of rationing forms for "technical adequacy" was masterminding of rationing planning by persons w h o were not masterminds. 6. Attention to small business firms. This principle seems to conflict with the principle of sample coverage since some small firms would certainly have to be included in any sample. It was probably included in a report to the Senate Small Business Committee for rather obvious reasons. A t any rate, it relates only to statistical forms—not program forms. 7. T h e last principle is rereview of reporting forms. Approval of a number of a branch's related forms was made to expire at the same time to provide "periodic reappraisal of whole reporting programs." W h e n this principle is applied to program forms it involves, quite clearly, a review of the "technical adequacy" of "'whole . . . programs." T h e Bureau probably thought of this principle as chiefly applicable to statistical reporting programs. From the foregoing analysis, it is clear that, even by its own statement, the Bureau had developed no basis for review of program forms. T h e Bureau simply reviewed such forms for "technical adequacy," a process without any rational basis. It is also clear from the foregoing analysis that the Budget Bureau did not distinguish between statistical forms and program forms. T h e Budget Bureau's function of coordinating information-gathering activities (statistical activities) was an important and needed one, and it was fairly successful in this field (and other fields of coordination, such as coordination of overlapping war agency authority). However, because it failed to rationalize its form review function, it dissipated the time and energies of its personnel in masterminding activities beyond their competence and delayed war-time planning activities to an incredible extent. 11 T o conclude, the experience of the rationing department with Budget Bureau clearance of forms completely

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bears out the House Appropriations Committee's criticism of the Budget Bureau in its report to the House in April, 1946, as reported by Jerry Klutz in the Federal Diary, a column in the Washington Post, on April 10, 1946. The Committee took a shot at the Budget Bureau which it said should devote its time to the coordination of functions and activities rather than details of administrative planning.

Chapter io.

T H E OVERHEAD

BY "OVERHEAD" we mean the structure outside of the basic working groups, the organization of "authority" and "advice" beginning at the point where program complexity and diversity made superiors and others non-expert in programs. Overhead includes the "line of command" and the "staff advisors." It is the structure above the groups who make the product for which the organization was created. In general, the rationing overhead was that part of O P A involved in rationing outside of the rationing branches, although some division directors were actually members of branch planning groups (see page 1 3 6 ) . There was some hierarchical structure within some branches, but very little. T h e branches were working groups. In the common understanding of overhead organization, there appears to be two basic notions—advice and command; or to put it another way, "staff" and "line" (the latter being the same as the concept of "authority," which is quite universally regarded as a peculiar characteristic of hierarchy). Authority seems to be regarded as the "power" to give "commands" which "have" to be obeyed. T h e relation between this common notion of hierarchy (line of command) and earlier theories of sovereignty is obvious. Like the theory of sovereignty, this popular notion of hierarchy and authority is purely formalistic; it is also legalistic and mystical. It does not correspond to observable facts. Many hierarchical superiors can in fact give very few "commands." On the other hand, many "staff" officers can and do give very many. Furthermore, the sanctions generally regarded as being available to hierarchical superiors, the power to hire and fire, are in fact often not available. T h e inability to hire and fire freely is due to many varied circumstances, among which the development of employee organizations, centralized personnel management, and civil service systems are only the most obvious. If authority is regarded as an observable phenomenon, it is merely the ability to elicit obedience or agreement. Thus people agree to the suggestions of a doctor if they accept the authority of science, to the

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suggestions of a minister if they accept the authority of religion, etc. In administrative relationships, people may agree to the suggestions of a " s t a f f " advisor because of respect for his ability; his suggestions may in fact become "commands" because of the high respect with which he is regarded. More frequently, the "advice" of a "staff specialist" becomes a " c o m m a n d " because the discomforts encountered when failing to take his "advice" act as an effective psychological sanction to induce compliance. W h e n "advice" is consistently accepted under these circumstances, as it is, the unreality of the common theory of authority becomes apparent. W h e n one regards authority observationally as the ability to secure obedience, authority no longer explains the phenomenon of hierarchy. Authority operates up and down and back and forth. H o w , then, can hierarchy be explained? Hierarchical conduct is the institutional core of organization in our society. Like any institution, it is only the outward manifestation of a belief system. T h e hierarchy is the result of a conduct code which we all acquire by virtue of our societal training. "Inferiors" obey "superiors," and generally react to them as though they were "superiors," because that is the way they have all been taught to react to "superiors" since they were infants. Particularly strong are the habits of hierarchical conduct in a society which teaches its members that organizational success is due to individual genius; that advancement up a hierarchy is a sign of moral worth; that the only worthy end of human striving is hierarchical preferment. RATIONING STAFF

UNITS

From the very beginning of rationing there were certain "functions" assigned to and assumed by centralized rationing " s t a f f " units. Although these "functions" have been described in pages and pages of not too meaningful detail in about a dozen documents, they were, very simply, the following: 1. Review all rationing plans (as manifested in forms, instructions, regulations, etc.) for "administrative feasibility " ("technical adequacy"). 2. Review a second time all rationing statistical plans for statistical administrative feasibility. 3. Prepare plans for assuring accountability for serially numbered documents (ration currency). 4. Retype and transmit to the O P A printing branch requisitions for duplication and distribution of rationing materials. 5. Maintain a general contact with the field (the regional rationing executive), plan for general field needs (e.g., staffing patterns), and keep

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track of the specific field contact activities of the rationing branches (e.g., make sure that too many branch personnel did not contact the same field office on the same day without that office's prior approval). 6. Exercise an undefined general review over divisional or branch management activities—organization, staffing, space, field travel money and authority, budget justifications, etc. (Management functions in O P A were centralized outside of the rationing department.) 7. Maintain a control desk to see that all necessary copies were presented, all proper clearances obtained, etc. 8. D o departmental odd jobs such as preparing, or stimulating branch preparation of, the rationing part of the O P A Quarterly Reports to Congress, answering a small amount of general correspondence or seeing that it was answered in the branches, preparing a few general rationing forms and instructions, etc. W i t h one or two additions and subtractions, and with an occasional shift of emphasis, these eight functions were shuffled and reshuffled through one organization and four reorganizations of the rationing department. In none of the reorganizations was the organization and function of the rationing branches changed in any way. Rationing began as a sideline of the O P A price division. T h e "staff functions" outlined above were at that time located in and claimed by the commodity distribution section of the O P A division of field operations. This section divided these functions (with the exception of transmission of printing requisitions, which did not appear until later) among three units—an organization and procedure unit, a statistics and control unit, and an operations (administrative) unit. Towards the end of April, 1942, rationing was set off from price in a rationing department, and the division of field operations was abolished. T h e staff functions outlined above now appeared in the office of the executive officer for rationing. T h e y were just the same except that the function of retyping printing requisitions for transmission to the O P A printing branch had been added, and the rationing branches now wrote nearly all of the instructions to the field. (Before, the division of field operations wrote instructions to the field over its director's signature, and the branches wrote their own instructions to the field which largely duplicated the ones from the division of field operations. N o w the rationing branches wrote both, the former over the deputy administrator's signature rather than that of the director of field operations.) W i t h i n the executive office for rationing, these staff functions were divided between the executive officer, himself, and three sections—the rationing organization and procedures section (composed of a planning and co-

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ordination unit and an instruction and review unit), a statistics and reports section (composed of an inventory unit, an accountability control unit, and a reports unit), and an administrative section. On October 3, 1942, a ration banking section was formally added to the executive office (Supplement N o . 1 to Administrative Order N o . 6 ) . Ration banking was a real centralized function. It is difficult to imagine how ration banking could have been administered any other way, as everyone agreed. Ration banking was a centralized function in addition to the eight listed above. O n September 25, 1943, Administrative Order N o . 6 (which described the organization of the executive office) was revised a second time, and the various staff functions listed above were reallocated to seven "branches" (rather than four sections). These branches were the procedures and forms branch, field coordination branch, ration banking branch, reports and statistics branch, inventory and control branch, printing coordination branch, and the administrative branch. N o personnel or functions were taken from the rationing branches (sugar rationing branch, shoe rationing branch, etc.), and the total personnel of the executive office for rationing was not increased. T h e second deputy administrator for rationing took office in November of 1943 and immediately began planning a reorganization of the rationing department. His reorganization is described in a memorandum to the staff dated January 6, 1944· In his reorganization he added one real, new function to the centralized staff functions listed above. H e centralized administrative services. All administrative personnel, files, and equipment were moved from the rationing divisions (food rationing division, fuel rationing division, etc.) to one centralized place under a single supervisor. In all the reorganizations of the rationing department, this was the only time people and functions were actually moved from the rationing branches and divisions (actually the divisions, since administrative services had long been centralized in the divisions). In this reorganization, the original eight functions, expanded to ten with the addition of ration banking and administrative services, were divided among four "staff divisions"—the administrative division, the field division, the program planning division, and the statistics division. T h e office of the executive officer was abolished. T h e executive officer became the "assistant deputy administrator." There was also a legal division which had been created the previous November when the administrator decentralized the legal department to the level of the operating departments, each one getting its own legal division. In this reorganization, the second deputy administrator had at first planned to abolish the separate legal organization, but a threatened mutiny on the part of the attorneys prevented him from

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doing this. T h e purpose of the reorganization, as stated in reorganization memorandum to the staff, was as follows: My objective in this reorganization is to create a greater unity of operation as a department. . . . It is imperative that we have a higher degree of coordination of effort and direction of policy along a common line and we are, therefore, creating certain staff divisions to assist in attaining this coordination and unification. O n M a y 1 5 , 1944, the second deputy administrator for rationing resigned and the third deputy administrator began to plan his reorganization of the department. T h i s reorganization was described in a memorandum to the staff dated J u n e 3, 1944. T h e purpose of the reorganization, as stated in the reorganization memorandum, was to simplify clearance while maintaining "uniformity and coordination in general departmental policy." T h e reorganization was to "avoid a series of clearance points between the operating divisions and the people with whom they had to deal." These goals can be reached most effectively if the Rationing Department is organized on the basis of a group of operating divisions handling all of the administrative activities of rationing and a single general staff group attached to the Deputy Administrator's Office for the purpose of over-all planning and coordination. In this reorganization memorandum, all of the staff divisions except the program planning division were designated as "operating divisions." T h e name of the program planning division was changed to planning and coordination division, and ration banking was taken away from it. T h e statistics division was abolished and the statistical review of public reporting plans and procedures was given to the planning and coordination division. T h a t division also acquired the looseleaf control from the field division. A new ration currency control division was created by putting together ration banking (from the planning and coordination division), accountability for ration currency and the statistical review of all local board reporting plans and procedures (both from the abolished statistics division), and "printing coordination" (taken from the administrative division). N o other changes were made. Under the director of the planning and coordinating division, the general review for administrative feasibility and the statistical review of public information gathering activities for statistical administrative feasibility gradually disappeared. However, the general review for administrative feasibility tended to reappear in two ways. First, the newly created ration currency control division was given an "operating responsibility for all aspects of the production, distribution,

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issuance, flow-back, auditing, and control of ration currency and ration credit." If this statement of authority had been taken seriously, it would have taken from the rationing branches more than half of their functions and personnel. M o s t rationing plans would come within the above statement. T h e statement was not construed to require the transfer of a single person from the branches to the currency control division. However, in its review of rationing plans (and it reviewed all rationing plans), the currency control division recreated a great part of the general review of rationing plans for administrative feasibility which the planning and coordination division had relinquished. T h e second way that this general review tended to reappear was in the practice followed by the director of the planning and coordination division of suggesting to the deputy administrator rationing plans which he (or the assistant deputy administrator) should scrutinize more closely. T h e last deputy administrators showed an increasing willingness to assume the function of reviewing detailed plans (including forms) for administrative feasibility. However, from the middle of 1944 on, the general review for administrative feasibility within the rationing department staff units declined and became less troublesome. It disappeared entirely as far as public information gathering activities were concerned. O n the other hand, the control desk function began to assume the proportions of a major activity. In September of 1944, the third deputy administrator for rationing resigned, and the fourth one began immediately planning his reorganization. T h i s reorganization was described in a memorandum to the staff dated October 12, 1944. A draft version of October 4 gives some idea of the purpose of this reorganization. It said: " I n all fairness to the public and to the employees of the Department we should make a realistic adjustment in our organization and staff requirements. Rationing is now administered principally in the field." T h e job of the national office is "principally a job of making essential changes necessary to adjust the program to new conditions, to stimulate the field through proper supervision and assistance to the optimum of effectiveness, and to plan the orderly completion of rationing activity." This reorganization combined the administrative division and the currency control division into an administrative operations division. It changed the planning and coordination division into a special assistant to the deputy administrator for program planning. It changed the field division into a special assistant to the deputy administrator for field coordination. F o r the first time in any reorganization (outside of the centralization of administrative services mentioned before), rationing divisions were involved. T h e reorganiza-

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tion combined the fuel and the automotive supply rationing divisions into a new fuel and automotive rationing division. T h e division consolidations in this reorganization actually resulted in some reduction in staff, mostly from consolidation of fuel and automotive supply. T h e following spring ( 1 9 4 5 ) , the administrative services function was given back to the rationing divisions because nearly everyone felt that centralized administrative services had been a failure. T h e administrative operations division, minus the administrative services function, became again the ration currency control division. T h e relations of the rationing branches with the various staff divisions (sections, branches, special assistants, etc.) were relations of conflict. T h e tremendous allocations of "authority" to the staff divisions, since they were not accompanied by an actual transfer of personnel and functions from the rationing branches, simply meant that staff personnel would review all the work of rationing branch personnel for "technical adequacy." This power without responsibility seemed basically wrong to branch personnel, and they also felt it implied a criticism of their ability. It seemed to indicate that the deputy administrator had lost confidence in them. Rationing branch personnel also thought the duplication of activity involved in the departmental organization was a foolish waste of time and energy. Since "responsibilities" were prodigally handed out to staff units without any actual centralizing of personnel or functions (except for administrative services), each reorganization assured and continued a duplication of activities as between branch groups and staff groups. Furthermore, the grandiose paper assignments of authority to the various staff groups, since they did not and could not correspond to the realities of authority, served only to make everyone unhappy. T h e general reaction of the rationing divisions to these various reorganizations is shown in the following quotation from a memorandum from the director of the fuel rationing division to the new deputy administrator following the second reorganization of the department. He asks for clarification of several of the "powers" of the newly created ration currency control division and ends as follows: I have a damn fine staff in this Division. People are very capable, very intelligent and hardworking. However, I am very concerned with the morale which has been brought about by a number of staff changes in the Rationing Department during the past six months. For this reason I feel that it is very necessary for us to know where we stand in relation to the above points. Relations between the rationing branches and the staff units improved toward the end of rationing because of the decline of the general

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EXTERNAL RELATIONS OF RATIONING BRANCHES

review for administrative feasibility and the disappearance of the departmental review of public information gathering activities for statistical administrative feasibility. There was considerable conflict until the very end, however. CLEARANCE Perhaps the most forceful method by which the overhead makes itself felt is the process known as clearance or review. T h e clearance process in rationing became very complex. T h e scope and complexity of the process have already been discussed (above, pages 6 0 - 6 1 ) . M o r e important to an understanding of rationing external relations is a description of types of clearance, some characteristics of the clearance process, and the sanctions of clearance. Types of Clearance Clearance can be classified in different ways. One useful way is to classify clearance into three types—review for information, review for coordination, and review for competence. All three types of review may occur simultaneously or they may be separate. Review for coordination and competence may result in changes in the product reviewed. Review for information will not. Review for information is simply a formal review to allow some group to keep informed about what is going on. It is not a troublesome review as long as the reviewers do not become ambitious to express themselves by trying to obtain changes in the product. A good way to avoid this possibility is to provide the review after the product has been shipped—a post-audit. M a n y people in O P A received copies of rationing amendments after they were issued. T h e principal review for information in rationing was review by the information department. T h a t department had to prepare a press release for nearly every rationing action, and so it needed to see a copy of the amendment embodying the action in order to prepare the press release. 1 Review for coordination in rationing is a more complex and troublesome problem. "Coordination" is a much abused word. M a n y crimes have been committed in its name. M u c h of the tremendous delegation of " f u n c t i o n " to the rationing staff units was justified as "imperative . . . to get a higher degree of coordination." "Coordination" was a word frequently used around the rationing department, but used probably with very little uniformity of meaning. These facts being so, it is worth while to spend some time analyzing the fact and fiction of rationing coordination. Coordination has a positive and a negative aspect. On the negative

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side, coordination is the avoidance of conflicting implementations to a single purpose. O n the positive side, coordination is the widest possible use of successful solutions. Negative coordination may result in veto of a suggested implementation or in a change in the product cleared. Positive coordination, by its very nature, should only result in advice, suggestion, a wide dissemination of information, because no one knows whether a past successful solution is as successful as it might be. Positive coordination, therefore, requires only review for information—merely as a device for finding out about solutions adopted. T h i s review can be and should be exercised on a post-audit basis. Positive coordination can easily become adulterated into a mere insistence on uniform procedures per se. It then ceases to be coordination and becomes esthetics. Although the wide dissemination of successful solutions—positive coordination—was needed in rationing and would have improved the planning, this service was never provided by the staff units nor by the deputy administrator's office. Although most of the problems of rationing control and audit (the complete implementing of the flow-back system) were worked out early for gasoline and fuel oil, most of the other programs never did completely solve the problems; tire rationing achieved a complete flow-back system in the summer of 1945; and sugar rationing completed the work on its flow-back system towards the end of 1945. O n June 12, 1944, the deputy administrator asked the assistant deputy administrator to look into the possibilities of each branch having a bulletin which went to the trade, explaining amendments, etc. (Memorandum in the files.) N a h l reports in his Diary discussions in the shoe rationing branch on the feasibility of direct mailings to the trade. Earlier, the tire rationing branch had rejected the idea of direct mailings of rationing information to the trade on the ground that it would be too expensive! All of this discussion was going on fairly late in the rationing period while the fuel oil and stove rationing branches had mailed semimonthly bulletins to the trade since the end of 1942, and by the time of these discussions had well-developed bulletins going to a list of more than 50,000 persons. T h e chief work of disseminating "successful solutions" was done by the enforcement department and by the rationing branches and divisions. Among the rationing staff units, positive coordination developed into insistence upon uniform procedures, per se, especially during the first half of rationing. T h e executive officer for rationing used to say that his goal was to have only three rationing forms—one which said " I w a n t " (application), one which said "you get" (currency), and one which said "they all got" (board report). Centralized staff and legal personnel se-

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cured a uniform procedure (and form) for appealing from local board decisions. Other minor uniformities were secured, such as uniform provisions with regard to certified ration checks, and man}· more were attempted. The ration currency control division attempted to get uniform industry provisions through the guise of a general ration order on currency control. Although a departmental study of rationing flow-back systems was instigated in the spring of 1944, it resulted in an attempt to centralize the control and audit function rather than a conscientious attempt to help the sugar rationing branch, for example, adopt already proven techniques for the solution of its flow-back problems (which it solved unaided in November of 1945). The reasons why positive coordination in rationing degenerated into the demand for uniformity per se are threefold. First, there were very few people in the staff units with the necessary program proficiency to provide a service of disseminating information about successful solutions. There were a few, however. Second, staff personnel tended to be assigned on the basis of programs, thereby themselves needing positive "coordination" just as much as the rationing branches. The third and most important reason why the function of positive coordination was not performed is a very human one. People do not like to confine themselves to the provision of a service, especially when the results of their activities are not easily or immediately apparent. People prefer to express themselves by being able to say "yes" or "no," by being able to veto or insist upon changes. Thus, to the extent that rationing review was review for coordination, it was mostly of the negative kind—the avoidance of conflicting implementations. Most rationing review, however, was review for competence. In the field of negative coordination—avoidance or settlement of conflicts—the rationing department, itself, had very little to do. Ration banking and currency accountability personnel of the currency control division reviewed the rationing output of the branches to make sure that a branch implementation did not conflict with a banking or currencv accountability procedure or objective. If it did, the conflict would be worked out between the persons concerned, or, in a few cases, it would be mediated by the deputy administrator. There were only two or three conflicts between rationing divisions. They were brought about by the insistence upon a uniform procedure or form, one division wanting the uniform procedure to be one way, the other another way. The deputy administrator had to resolve these conflicts, by mediation, the discussion going on until a point of agreement was reached. Most of the negative coordination was provided by the rationing di-

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visions. As was said before, it was virtually impossible for the rationing divisions to come into conflict. One division hardly knew another division existed. There were members of the fuel and automotive rationing division who had never heard of the miscellaneous products rationing division. When gasoline rationing was taken from the fuel rationing division and placed in the automotive supply rationing division in October of 1942, negative coordination—the avoidance of conflicting implementations—was almost completely provided for in the rationing department (exceptions being ration banking and currency accountability). That division was rationing something more than gasoline or automobiles or tires. It was rationing mileage. All three products were indispensible units of that larger entity—mileage. The same automobile that got tires had to get gasoline. What had to be coordinated was eligibility for the commodity. Most of the rationing mechanics did not need to be uniform and were not made uniform. The three industries involved had different practices, and no attempt was made to achieve uniform industry provisions. The achievement of such uniform provisions did not present itself to the automotive supply rationing officials as a problem. (Note, on the contrary, the attempts to get uniform industry provisions which emanated from the departmental office.) What was coordinated were the eligibility rules. They were kept coordinated through the divisional eligibility committee. Once the committee was established, the division's chief function of negative coordination was a theoretical one—to supply authority for the decisions of the gasoline eligibility committee. What was true of the automotive supply rationing division was also true of the fuel rationing division. Fuels were scarce only in relation to other fuels and to the available kinds of equipment to burn them in. The ultimate unit of fuel rationing was heat. A person who was eligible for an oil stove had to be eligible for a fuel oil ration. Thus, what needed to be coordinated was again eligibility. This coordination was achieved by drafters and writers who worked on both the stove and the fuel oil rationing programs. No effort was made to get uniform procedures in rationing mechanics because this was not a real problem to be solved. The coordination problem of food rationing was different. If OPA had gone into the rationing of nutritional units (as it did for some heavy industries near the end of rationing), then food eligibility would have needed coordination the same as mileage and heat. The coordination needed in food rationing was the adoption of uniform procedures for certain classes of respondents upon which all food programs made a rather heavy impact. These classes of respondents were institutional

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users of food and industrial users of food. The uniformities needed were secured within the food rationing division. Another source of troublesome conflict in food rationing were the adjustments of inventory and allotment allowed by the Washington office to food businesses of various kinds to avoid hardship. If these adjustments were not uniformly granted, members of the public would experience the feeling of discrimination. To avoid this result, the food rationing division created a divisional food adjustment policy committee. Thus, to avoid a conflict of food adjustment principles, these principles were centrally planned within the food rationing division. To the extent that positive coordination was supplied (the dissemination of successful solutions), it also was supplied below the departmental level. Positive coordination was supplied to some extent by a few divisional procedures writers who worked on more than one program. It was also secured by some branch specialized personnel who occasionally sought the advice of their counterparts in another branch or division. Thus, stove rationing personnel sought the advice of tire rationing personnel when planning their quota system. Fuel oil and gasoline control and audit people constantly sought one another's advice on control and audit problems. All of the procedures writers of the department met to formulate joint suggestions for improvement in the departmental clearance function. Because the service of positive coordination was not to their liking and largely beyond their abilities, and because the possibilities for negative coordination were largely exhausted within the branches and divisions, departmental personnel during the first half of rationing allowed the coordination function to degenerate into the mere insistence upon uniformity per se. Under the guidance of one of the later staff assistants to the deputy administrator, coordination took on another meaning during the latter part of rationing. As he developed the concept, it camc to mean compliance with departmental and agency clearance requirements and similar procedures. Although he analyzed the concept in more than one document, the following memorandum from him to the deputy administrator explains his concept of coordination just as well as, and more simply than, the longer documents. MEMORANDUM April 25, 1945 TO: FROM: SUBJECT: Coordination I have asserted many times that teletypes in anticipation of amendments needed coordination just as much as the amendments themselves—maybe more so.

THE OVERHEAD An example is the Institutional User wire that went out last night, and which I heard about this morning. ( I got a copy only by calling Mr. McKechnie and getting him to read it to me over the phone.) Here are the points that should have been caught last night: ι . Paul Gnau was not informed. He has a legitimate interest in the project. Luckily this particular item has no serious effect on board load. 2. Information Department was not informed. This is a quick and easy way to destroy smooth relations with them. And get in a jam! 3. Pollack and Gentner were not informed. They maintain that an agency rule requires this step. No harm is probably done, but this is a good way to start people screaming. I am always ready to help keep these projects coordinated. If clearance is for the purpose of negative coordination—avoiding conflicting implementations, and if it is by persons technically and otherwise qualified to supply such coordination, clearance can be an important means toward achieving coordination. It is not, itself, coordination, however. T h e other idea of coordination as insistence upon uniform procedures per se continued on in the ration currency control division, though with a certain defeatist diminution of energy. T h u s , at the end, departmental coordination of rationing meant insistence upon uniform procedures by the currency control division and insistence by the aforementioned staff assistant to the deputy administrator upon the securing of signatures from everyone who had "a legitimate interest in the project." T h e last type of clearance listed above was review for competence. During the greater part of rationing, this type of review was the principal type provided for rationing materials. Various individuals reviewed the product of the rationing branches and tried to improve upon it and force changes in it. It was the review for "technical adequacy" of the statistical standards division of the Bureau of the Budget. It was the general review for "administrative feasibility" and the special review for statistical "administrative feasibility" provided by the rationing staff units during most of the history of rationing. It was the type of review that nearly all reviewing points tended to attempt. It caused most of the friction, conflict, and unhappiness of the rationing experience. It was a near intellectual impossibility, for masterminds are hard to find. It was an implied criticism of rationing personnel which was not meant that way. It was a completely typical and irrational bit of organization blundering. It contributed a good deal of the red tape and delay of rationing. It was the type of governmental experience which made efficient and imaginative war-time personnel resolve never to work for the government again. (For

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a complete analysis of the possibility of this type of review, see below, pages 3 1 4 ft.) Characteristics of Review T h e rationing clearance process had certain very definite characteristics. T h e first one was insistence upon exclusive contact with the next reviewing point above. T h e rationing printing coordination branch was the "exclusive contact" with the O P A printing branch. T h e rationing administrative services division, while it existed, tried to be the "exclusive contact" with the O P A personnel division, budget division, and administrative services division. T h e rationing statistical division (earlier a branch, still earlier a section) insisted upon "exclusive contact" with the O P A statistical standards office. T h a t office insisted upon "exclusive contact" with the Bureau of the Budget. T h e rationing field division insisted upon "exclusive contact" with the O P A office of field operations (later board management), and personnel in the division field liaison sections insisted upon "exclusive contact" with the rationing field division. T h e result of the "exclusive contact" system was that the rationing product was "sold" by less and less experienced salesmen, or else that branch personnel had to educate several different reviewing levels concerning the same subject. T h e branch person responsible for obtaining clearance knew all about the material being cleared. He had helped develop it. He completely explained the material—the reasons for it, what it did, etc.—to the first reviewing point. T h e person involved at that point explained it to the one above, etc. T h e explanation became less expert and more garbled all of the time. Frequently, the final reviewing point had questions which would come down through the same channels to the branch expert and the answers to go back up the same way, with a tremendous loss of time. Sometimes, in order to make sure that an explanation was properly presented, and so that objections could be satisfied on the spot by the only person able to satisfy them, the branch expert would get permission to go along with the "exclusive contacter" and thus personally explain the material in an expert fashion. Sometimes, one of the higher clearance points would directly call the branch expert to get an answer, but this was generally frowned upon by the intermediate "exclusive contact" points. Also severely frowned upon, of course, was a call by the branch expert directly to the higher clearance point. He usually obtained permission from the intermediate clearance point to make such a phone call. T h e first director of the rationing administrative division tried to keep the director of the fuel rationing division from dis-

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cussing fuel rationing personnel needs and problems with his old friend the OPA director of personnel when they had lunch together. "Exclusive contact" was justified as necessary "so they will only have one place to contact." Often the higher clearance, however, was not interested in that convenience and preferred to deal directly with the people who knew most about the material. Actually, this single point of contact theory is in most cases a farce. For example, on all difficult statistical plans, the responsible person in the Bureau of the Budget, and usually his superiors, too, would eventually have to deal directly with the branch expert (and his superiors, too). This person in the Bureau of the Budget knew the branch expert and knew his telephone extension. It was just as easy to address a memorandum or make a phone call to the branch expert as it was to the "single point of contact." It was just as easy to receive memoranda or phone calls from a few branch experts as it was from a "single point of contact." T h e source of the communication did not affect the difficulty of its subject matter. (Near the end of rationing, both the rationing statistical division and the OPA statistical standards office were abolished.) One very frequent phenomenon resulting from the right of "exclusive contact" was the phenomenon of borrowing power from the group above. Frequently the "exclusive contact" would insist on changes in the material on the ground that he could not clear the material with the point above unless those changes were made. W h e n asked how he knew this, the "exclusive contact" would reply with vague suggestions that, bv dealing so long with the point above, he had come to know what sort of thing that clearance point looked for. All too often the "exclusive contact" was confusing his own prejudices with those of the higher clearance point, and occasionally this technique was nothing but a ruse—a consciously used power technique. T h e phenomenon of borrowing power from the next highest clearance point is most frequently seen in the relations of centralized personnel offices to the operating people of an agency, the power borrowed being that of the U.S. Civil Service Commission. In OPA, power was also frequently borrowed from the Budget Bureau by the OPA statistical standards office and, to a lesser extent, the rationing statistics division. "Exclusive contact" is usually insisted upon by an organization unit which is not sure of the reality of its function. A real function or service usually does not need to be protected by such bureaucratic stratagems. W h e n the phenomenon of "exclusive contact" is observed in an organization, that is a very good sign that something is wrong with that organization. (Of course, exclusive contact may also have a real basis as did

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that between the O P A printing branch and G P O . T h a t branch was staffed with real printers and was responsible for obligating O P A printing allocations.) Another characteristic of the rationing clearance process was that most objections raised in clearance were picayune. W h e n materials were reviewed for negative coordination (the evidence of conflicting implementations), real objections were occasionally raised in clearance. Such objections were sometimes raised by banking and currency accountability review. Most review, however, was review for competence—non-experts trying to improve upon the work of experts. Such improvement is a practical impossibility (except in the rare case when a near genius has accidentally gotten into the clearance process). Therefore, the reviewers simply approve everything. However, to approve and initial everything presented for review is bound to raise the question in the reviewer's mind, consciously or subconsciously, " W h y am I reviewing this material anyway?" And if the reviewer is not inclined to look for another job, he will answer that question, consciously or subconsciously, by finding something wrong with the material reviewed. Since human beings rarely achieve perfection, it is usually possible to find some slight error or mistake in their work. N o matter how many levels of review the material is put through, another reviewer will usually be able to make some slight improvement. Thus, the various reviewers usually found a word that should be changed, a mistake in grammar, an error in numbering, etc. Branch clearance officers soon became aware of this fact and purposely left "sleepers" in the material to be reviewed so that the clearance point could find the error and conclude the review without getting into more serious matters. Another characteristic of the clearance process was the very strong tendency for all clearance points to get into all subjects. T h e interests of the reviewers were universal. This characteristic can be illustrated bv the following memorandum to the files written by the director of the program planning division. May 8, 1944 Division of Functions Among Cooperating Groups One thing that complicates any review process is the tendency of the reviewing group to make recommendations on matters outside of their field of specialization. While bright ideas from any source should be welcomed, irrelevant opinions are often made a condition of clearance. The following instances, selected at random, are offered for whatever they may be worth: ( 1 ) On the Mexican border program, Mr. Rhodes, whose field is statistical reporting, raised serious objections to the complexity of the program as a

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whole. This was an operating matter which had been thoroughly considered at the same time when responsibility for the development of the program was delegated to a committee of District Directors in the Mexican border area. ( 2 ) On the Mexican border program Mr. Lewittes (Legal) of the Legal Department raised objections from the policy point of view to the requirement that members of the trade must exchange coupons for certificates at local boards. ( 3 ) On the "cull" amendment to the rubber boot program Mr. Clark (Legal) raised policy objections to allowing culls to be sold ration free without certain price limitations. . . . . [The deleted examples did not illustrate his point.] (6) On the Mexican border procedure program the Statistics Division and the Statistical Standards Office [OPA] raised several questions about the simplification of the forms and the consolidation of certain forms. T h e questions were not raised from the point of view of statistical reporting but were raised on the basis of requiring the district committee to change its program in a way that the committee could have done by itself if it had wanted to do so. (7) T h e Enforcement Department recently raised serious objections to eliminating the duplicate copy of Form R - 1 2 0 1 . That department could not demonstrate that any use had been made of the duplicate copy for enforcement purposes but wanted to force us to adopt a new accountability procedure as the price of eliminating this duplicate copy. (8) The Program Planning Division shows very little restraint in its tendency to mix into business that belongs to other people. Innumerable instances of this kind of interference could be obtained from almost any member of any of the operating divisions. Another characteristic of the clearance process was the unquestioned identification of the reviewing position with the reviewing individual. All sorts of persons were hired to review and improve upon the work of branch experts. T h e i r grades went from C A F - 7 to C A F - 1 5 . If a reviewer were ill for a few days or went on a vacation, some other person w h o knew absolutely nothing about the particular rationing program involved would take over his duties of reviewing and improving branch output. A final characteristic of rationing review was its individual nature. Review was by a series of individuals, not a series of organization units. T h u s clearance by one person in a reviewing group did not mean very much. If his superior happened to see the material, he would review it himself, insisting on his own separate improvements. Conversely, although material was cleared by a superior, it might later be rejected by one of his inferiors. M a n y times documents which had been approved by the deputy administrator for rationing were brought back to the department for the review of one individual who had been overlooked in the clearance process. Everyone was entitled to his opinion.

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Sanctions for Review Many of the clearance powers of reviewing points were assumed by those points. Clearance points went as far as they could "get away with." Occasionally a formal document describing the powers of the clearance point would be issued. Such documents were nearly always written by the clearance point and promulgated by a superior who did not understand the full implications of the document. Sometimes these documents were also cleared in advance by rationing division directors who likewise did not understand the full implications of the document. Whatever the formal documents may have said, however, the actual areas of power were those claimed by the reviewing points, and the actual exercise of power was limited by the willingness of high branch or divisional personnel (generally speaking, the division director) to take up an issue with a common superior. Up to the point where branch personnel could get their superiors to make a high level issue of a matter, the clearance points could "command" that changes be made. Staff and other clearance points did far more "commanding" in rationing than did the line hierarchy of superiors. Since all rationing material (except ration banking matters, currency accountability procedures, and press releases) originated and was developed in the rationing branches, reviewing points had to depend upon the clearance process for an opportunity to exercise their powers (they were invited to participate in the planning process but seldom took advantage of this invitation). Thus, the question arises, why not simply fail to show the finished product of branch planning to the clearance points? W h a t were the sanctions of the clearance process? The sanctions of the clearance process had nothing to do with power over personnel actions. No personnel action was ever taken because of an individual's failure to obtain clearances. T h e sanctions for the clearance process were more in the nature of sociological sanctions and controls. Certain individuals in the branches were responsible for obtaining "all necessary clearances." These individuals were usually the procedures writers (drafting attorneys obtaining legal and enforcement clearance). If one of these clearance officers failed to obtain a "necessary clearance" from someone with "a legitimate interest," a great and uncomfortable commotion took place. Often the offended person and his superiors would call conferences with the superiors of the offending clearance officer at which the latter's defection was discussed. T h e culprit's superiors would disclaim any responsibility, laying the whole blame at the door of the clearance officer. T h e culprit knew that these activities were taking

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place and that eventually h e would hear from his superior. Thus, he went through a more or less protracted period of suffering. This feeling was heightened by a kind of ostracism. T h e offending clearance officer would be regarded with suspicion and a certain amount of disdain by the clearance points until he had proven himself a sound person again. This violent upheaval occurred even though the "uncleared" material that went out was perfectly correct, as it usually was. T h e question involved was one of protocol, not the quality of the product. Frequently, however, the offended parties would search diligently for some imperfections or errors in the material that went out, and sometimes they insisted that "corrections" be immediately dispatched. Usually by that time, everyone was so upset, the clearance point so righteously outraged, and the culprit so thoroughly suppressed, that no objections were made to sending out such "corrections," though often they confused more than they clarified. This kind of excitement occurred often enough when a clearance point was overlooked to act as the sanction of the clearance process. Violations of protocol with regard to legal clearance brought a particularly painful result, which partly explains the power of the attorneys. T h e feeling that the "right of clearance" was morally due them was very strong among the attorneys. 2 FUNCTIONS O F RATIONING SUPERIORS Above any working group of people there is almost always a more or less elaborate superstructure of "superiors." In rationing, these superiors were the division directors, 3 the assistant deputy administrator, the deputy administrator for rationing, and the O P A administrator. Branch chiefs were also superiors, of course, but much more they were workers, producers. T h e superiors got into some things and thus affected the rationing rules to a certain extent. They got into things in three ways. First, some matters were referred to them by their subordinates, their experts. Second, some things were referred to them by their superiors. And, third, superiors got into a few things on their own initiative. By analyzing the kinds of matters in which rationing superiors became involved, it is possible to develop a theory of their function. Below the functions of rationing superiors are listed and related to a more general notion of the role of the rationing superior. T h e function of appointment is not included because it happened ver)' seldom and because it had little effect on the rules. Deputy administrators participated in the selection of division directors and sometimes branch chiefs. Division directors participated in the appointment of branch

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chiefs and sometimes section chiefs and other " k e y " personnel. Appointment tended to be by group decision of several interested persons including specialized persons in the O P A personnel office. Removals were so few they are not worth mentioning. T h e budget activities of rationing superiors (except the administrator) were part of their protective or selling function, since budget control was outside the department. T h e concept of supervision only applied in the branches at a very low level. Professional personnel, on their own initiative, worked until their problems were solved, even if this took all night. Political

Function

Previously, we noted that the hierarchy sometimes became a channel by which pressures were focuscd on the working groups. Purpose (values) generated outside of the agency sought expression in this way. T h e hierarchy sometimes succumbed to such pressures first. It Lhtn became a pressure upon the working groups. F o r example, early in 1944, the gasoline rationing branch began to receive demands that furlough rations be allowed for members of the merchant marine the same as for members of the armed forces. T h e eligibility committee consistently denied such requests. ( " T o relax the Regulations to include one group of civilian workers logically would demand equal consideration for the other groups.") T h e O P A labor office 4 began to receive demands from the various seamen's unions, and it put pressure on the O P A administrator, as did also two Senators and the Maritime Commission. T h e administrator accepted the value of furlough rations for merchant seamen in September of 1944 and asked the deputy administrator for rationing to do something about the situation. For the next three and one-half months, the deputy administrator kept urging that furlough rations be allowed to merchant seamen. T h e eligibility committee finally succumbed to this hierarchical pressure, and such furlough rations were finally allowed beginning January 12, 1945 (Amend. 169, R . O . 5 C ) . T h e chief of the gasoline eligibility section said afterwards the committee was "browbeaten" into providing furlough rations for merchant seamen. Other gasoline eligibility cases already cited, such as the veterans case, the Farmers Union case, and the case of Father " B r o w n , " are also examples of the political function of the hierarchy. In food rationing an outstanding example is the de-rationing of meat in M a y of 1944. In January of that year there had been hearings before a congressional committee on de-rationing of meat, the industry pressing for the removal of controls. A new deputy administrator, who believed that O P A must give

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in to pressure in order to be popular, went through those hearings. Consequently, when the pressure to de-ration meats again became strong a few months later, he was emotionally prepared to accept de-rationing at once. T h e de-rationing of most meats in M a y of 1944 was worked out with W F A by the deputy administrator, personally, over the protests of the meat rationing branch. T h e supply and demand figures did not justify de-rationing at that time. From early 1944 on, the hierarchy became more and more involved in food rationing because the need for food rationing was being challenged. Social purposes in flat contradiction to those of the food rationing division were being pressed with increasing pressure. Food rationing focused a problem in rationing purpose—the issue of a mathematically defined purpose (supply and demand) versus a socially defined one. T h e hierarchy was the channel by which the socially defined purposes became effective. These were cases where the hierarchy exercised its political function at the instigation of groups or persons above or outside. It also "got into" things of a political nature at the instigation of the working groups below. Occasionally, inferiors referred decisions to their superiors to force the latter to take or share the responsibility for decision. W h e n inferiors thought that a decision might have serious public repercussions or repercussions which were serious even though not public, they sometimes brought the hierarchy into the picture. In these latter cases, the working groups would complete the thinking for both purposes and present the hierarchy with the alternatives and the job of making an "either-or" decision. T h e hierarchy then had to decide whether the proposed implementation which was logically related to the group's purposes would actually have the undesirable repercussions which the working group feared. It was usually not so skilled at this function as were many of the inferiors and usually took their advice (or the advice of specialists such as those in the Information Department). (See the examples cited above, pages 199-202.) Correction of the Institutional Deviation As pointed out before, rationing officials tended to conceptualize rationing mechanics, and also their ideas of the "public interest," the "right" thing to do, became more and more fixed and defined by bodies of rationalizing principles and values which had administrative utility. In other words, the agency developed a point of view; rationing purpose and technique tended to become institutionalized. W h e n an agency's

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purpose becomes institutionalized, it may deviate somewhat from the original purpose and even more from the present needs of the society for which the agency exists. T h e process of institutional deviation had not developed far in rationing. It may be, however, that some rationing officials tended to forget the implicit purpose of rationing—to ration with as little disturbance of normal behavior (practice) as possible. A t any rate, each deputy administrator urged simplicity at his staff meetings on one or more occasions, and division directors sometimes did likewise. T h e hierarchy was not well equipped to exercise the function of correcting institutional deviations because it was a part of the institution and shared its concept of purpose. T h e second deputy administrator was brought in partly to correct the institutional deviation in rationing. Outside of the de-rationing of meat in M a y of 1944, he accomplished very little. T h e rationing personnel could always give him convincing technical reasons why something had to be done or done in a certain way. H e appointed a successful food businessman to run the food rationing division, but both of them working together achieved very little more than the hostility of food rationing personnel. Neither he nor the man he appointed to run the food rationing division dared to act contrary to the advice of the expert rationing personnel. Neither of them were absorbed into the rationing institution, and both soon resigned, having changed things practically not at all.

The Superior as a Worker A n administrative group may be thought of as a group of people planning inventions (or performing actions) to implement a single purpose. T h e y are or become technically expert in devising implementations for that purpose. Hierarchical superiors may take part in this inventive process in two ways. First, they can themselves suggest inventions or implementations of the purpose, just like the rest of the workers in the group. T h e second way they may become workers, implementers, or inventors is more abstract. It may be that the working group is a part of a larger group which has a larger, more abstract, group purpose. In this case, the purpose of the minor group is itself an implementation of the more abstract purpose of the larger group. Thus, the superior w h o assigns a purpose or objective for the minor group can be said to be implementing the purpose of the major group with a more abstract implementation. In rationing, the superiors became workers almost entirely in the first sense. T h a t is, their inventions, which were relatively few, were suggestions for implementing an already assigned purpose; they were not the

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assignments of purpose as such. As noted before, the purpose of rationing was almost completely expressed in the rationing branch. The rationing branch was not implementing a larger agency purpose. It was almost completely administering the agency purpose for one commodity— "almost completely" because enforcement and information activities were also necessary to complete the implementation of the purpose to ration as simply and effectively as possible. Those activities were outside of the rationing department. Within the department, ration banking and currency accountability activities were also necessary for the complete implementation of rationing purpose. However, while the purpose of ration banking, for example, was only a part of a larger purpose, the purpose of the rationing branch was that larger purpose—namely, to ration. Assignment in rationing was a phenomenon almost exclusively confined to low levels within the branch, especially clerical or tabulating pools. Branch assignments were usually group decisions, and the persons who would be involved were indicated by the nature of the proposal. Assignments from levels above the branch were almost entirely requests for information or the routing of a memorandum or letter to be answered. For the most part, rationing activity assigned itself. For this reason, hierarchical superiors (above the branch chief) took part in the inventive process, to the extent that they took part at all, by occasionally suggesting a rationing plan, or procedure (an implementation), not by creating purposes larger than any branch purpose. Although there was increasing talk on the part of the rationing staff units and the deputy administrator's office about "conformance to departmental standards," such standards were never forthcoming. (A "Rationing Veterans Policy Statement," prepared after much deliberation in the summer of 1944, turned out to be nothing but a listing of what each rationing program was doing for veterans.) A departmental policy or purpose was apparently impossible to define; the possibilities were exhausted in the purpose of the rationing branch. The second deputy administrator was appointed, partly, as an attempt to redefine rationing purpose. The purpose of rationing was to be changed in such a way as to make it a part of an OPA popularity contest. Only two concrete results of this attempt were discernible. The first, adopted shortly before Christmas of 1943, was the provision which allowed gifts of rationed food to be made without the surrender of ration currency. The other was the de-rationing of meat in May of 1944. Rationing superiors appeared as workers chiefly during the early days of rationing when division directors were actually a part of the branch planning group. Thereafter, the occasional insistence upon a pet im-

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plementation to the group purpose probably did more harm than good; or else it did not matter at all. Deciding between Conflicting

Implementations

Whenever administrative groups are assigned purposes which are themselves implementations of a larger purpose, it is possible for the specialized groups to come forward with conflicting implementations of the larger purpose. The experts may disagree. The inventions may conflict. Unless there is advance agreement about what to do in such cases of conflict, the planning or doing may come to a halt. To avoid stalemates and thus allow work to continue, it is conventional to have some person charged with the settlement of such conflicts. This person is usually the hierarchical superior. (It need not be. Courts resolve conflicts between individuals, and the Supreme Court also resolves conflicts between states. Mutually agreed upon arbitrators resolve conflicts between labor and management.) The resolution of these conflicts between the experts has been referred to as negative coordination. It is one of the most important functions of hierarchy. It may also be entirely conventional or procedural—a pre-existing way to meet a working problem likely to arise. There was very little possibility for conflict between experts in rationing. Most negative coordination in rationing was obtained within the divisions on an automatic basis which made the division director's role in settling conflicts a theoretical one. Above the division level, conflicts with ration banking and currency accountability were possible and occurred a few times. Thus, when the currency control division wanted to reduce banking costs and work load on the banks by forbidding the use of certified ration checks, some branches objected. They wanted all ration checks paid to local boards or other field offices certified becausc they were afraid that some field offices would forget to present the checks to the drawers' banks for payment, whereas for certified checks the account is debited at the time the check is certified. This conflict was mediated by the deputy administrator. Another kind of conflict which developed near the end of rationing concerned the distribution of field positions. The number of field positions was reduced by the OPA budget office. Since each branch wanted all the field positions it could get, the deputy administrator had to decide these conflicts on a rather arbitrary basis. Although there was little chance for rationing implementations to conflict, there were many conflicts between branches and clearance points both in and outside of the rationing department. Most of those con-

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flicts, however, were self-imposed. Their possibility (in fact, certainty) was created by the hierarchy, and they were solved by the hierarchy. They were not conflicts of contradictory inventions but conflicts of contradictory roles. If rationing branches were responsible for rationing, as they were, various other people could not also be made "responsible" for rationing without conflict resulting. T h e way to settle such conflicts was simply to remove one of the conflicting parties. Thus, the third deputy administrator removed the rationing statistical division and the program coordinators (general review for administrative feasibility). T h e administrator finally removed the O P A statistical standards office. If rationing deteriorated in any way when these points of conflict were removed, no one will ever know about it. Perhaps the most prolific and highly organized source of conflicts between contradictor)' roles was the position of independent power enjoyed by the rationing attorneys. Prior to the fall of 1943, these conflicts were resolvable only in the O P A administrator's office. M a n y such conflicts occurred. An interesting example of such a conflict, which also illustrates the reality of the equity ("even-handed justice") which the attorneys appointed themselves to guard, is the following fuel oil rationing case. In January of 1943, further to curtail consumption of fuel oil, it was planned to cut the use of fuel oil for heating non-residential premises (stores, offices, etc.) by another 25 per cent. Mixed premises (combined residential and non-residential) were to have the cut applied only to the non-residential part. It was recognized that in many cases (perhaps most) the heat could not be shunted from one part of the building to another, and that, therefore, the residential part of a mixed building would also receive a reduction in heat. T o reduce the number of cases (cases where only a small amount of oil would be involved and could be saved), the non-legal fuel rationing officials wanted to disregard mixed buildings which were more than 70 per cent residential, thereby letting the small non-residential parts off without further cut. T h e attorneys objected on the ground that such a provision would discriminate against other nonresidential users of fuel oil. (Remember that the whole program "discriminated" against the residents of mixed premises since in many cases heat could not be shunted from non-residential to residential parts of the building.) This issue of "even-handed justice" could only be settled at the level of the O P A administrator's office. M r . Henderson quite sensibly ruled for the fuel oil rationing officials, and mixed premises with more than 70 per cent of residential space were disregarded. Conflicts with the attorneys did not need a hierarchy for their settle-

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m e n t . Like most of the other conflicts of rationing, they could have been reduced simply by removing one of the points of conflict—that is, by abolishing the separate legal organization. This is actually what was done, by necessity, when sugar rationing became the last rationing program, with no deterioration in the quality of the sugar rationing rules. W h e n a conflict between contradictory implementations occurs, the c o m m o n superior does not necessarily select the "right" implementation, although he undoubtedly thinks h e does. If the two groups are implementing parts of a larger, more abstract, purpose, the conflict probably arises from a confused assignment by the c o m m o n superior. In that case, the superior may select the correct implementation. He may also do so if one of the groups or experts is deficient in problem-solving ability or does not have all the facts necessary to a correct decision, situations dependent upon organization and staffing in the first place. If the two groups of persons are implementing the same purpose, such as the rationing branches and the rationing staff divisions, the common superior may decide between t h e m on the basis of which group he thinks has the necessary facts or is best able to reason from them. Very often, however, the superior will be able to decide such a conflict only by feeling. In any case, the important thing is to have a decision so that work can continue. A Channel of

Communication

O n e obvious activity of hierarchical superiors is to transmit information and requests for information received from outside the group or from the superior's superior. If the administrator wanted some information, h e asked the deputy administrator for it. T h e deputy administrator would then prepare a m e m o r a n d u m to the division directors which said, typically, " T h e Administrator has asked m e to furnish him with information about. . . . Please have this information in my office by Friday." T h e division director would then circulate this m e m o r a n d u m among his branch chiefs with a covering m e m o r a n d u m which said, "Will you please have in my office by W e d n e s d a y the information requested in the attached m e m o r a n d u m , which is self-explanatory." T h e hierarchy was also the channel for pressures, as stated above. T o the extent that high-level assignments were made, they came down to working people through the hierarchy. T h e actual value of the purely communicative function of the rationing hierarchy is hard to assess. It is certain that the hierarchy was used for this purpose chiefly by t h e hierarchy and some outsiders. T h e working people moved freely about in complete disregard for organiza-

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tion lines unless forced to recognize them. T h e y found out who the final recipient of the communication would be and sent it there in the first place. T h e working people respected the hierarchical lines only to the extent that hierarchical superiors insisted upon it. T o most of the hierarchical superiors, the formal channels ( " l i n e s " ) were important. Violation of protocol was censured. W h e n the last assistant deputy administrator began to address his questions concerning correspondence and other matters directly to the branch personnel who had prepared them, some of the division directors and branch chiefs became very critical. There is no doubt but that some of the importance of the hierarchy as a channel of communication is based upon the romance of the "superior"—"big shots" should deal only with "big shots." Sale of the Product W h e n something had to be sold to (cleared by) an hierarchical superior, this job was usually given to a superior of about the same rank. Thus superiors explained materials to their own superiors and to other interested superiors. It was generally felt that a person should be contacted by someone of about the same rank. Furthermore, when a clearance was particularly difficult, the prestige of a superior was frequently called into play to aid the clearance. Especially was this true for clearances outside of the agency. Thus, the deputy administrator helped clear the 1944 shoe inventory with the Bureau of the Budget. W h e n branch personnel were having a difficult time getting agreement from some other agency, they frequently took their superiors to meetings with them. It was generally believed to be more difficult for a clearance point (or any group whose agreement was needed) to say " n o " to an hierarchical superior, and the higher the superior the greater this difficulty was felt to be. Hierarchical superiors typically were involved in inter-agency negotiations. Hierarchical superiors were under some disadvantages when trying to sell the product because they usually knew very little about it. T o help overcome this difficult)', the branch personnel who were very familiar with the material carefully briefed the superior before he went off to make the sale. Even this briefing was not always enough, however, and superiors sometimes " m u f f e d the ball." W h e n possible, inferiors preferred to go along with their superiors when the product was being sold to make sure that their superiors "stayed on the b e a m " and were not outmaneuvered. Then, if there was any real danger of loss, the inferior, so he felt, could jump into the conversation and direct it into safer channels.

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O n e of the reasons for the appointment of the second deputy administrator was to help sell the rationing product to the industry (and also to the public). He, and an industry man he appointed to head food rationing, talked to industry groups whenever the opportunity presented itself. It was generally true, however, that the rationing product was sold to industry by the branches, themselves ( including some of the early division directors). T h e reaction of the fuel oil industry advisory committee to the above-mentioned deputy administrator is illustrative of this point. W h e n addressing the committee on December 7, 1943, he criticized rationing personnel for not consulting sufficiently with industry in the past. T h e vice-president of one of the largest oil companies in the country immediately replied in defense of fuel oil rationing personnel. I have no questions to ask, but I would like to speak from my own observations on this operation on the panel [committee]. I have found the Fuel Oil Rationing Division especially open-minded, and I think our suggestions that we have made here—there have been some bitter fights on the floor, and blood has been spilled on the floor and spattered on the ceiling, but our suggestions, when sound, prevailed, and frankly and honestly, I would say you are a little too apologetic for OPA as far as I am concerned, but I am not speaking for the enforcement division, but taking the rationing branch, and I am very happy with the resultant fuel oil rationing scheme that has come out. I think it is a swell job and I would like to say so right here. I am not very happy about enforcement. 5 Protection against Danger Since an administrative group is defined in terms of purpose, danger to the group is any threat of diminution of that purpose or obstacle to its satisfactory achievement. If the danger materializes and harm is worked, the group loses "power," partially or completely. Logically, a loss of power should signify a diminution of purpose, but, with the general confusion surrounding organization theory, loss of power very frequently means the erection of obstacles to the achievement of the group purpose without any diminution of purpose. T h e n the group finds itself in the rather typical dilemma of being charged to accomplish what it cannot accomplish or can accomplish only with great difficulty. Danger to the group brings a corresponding drawing together or cohesion of the group members. T h e hierarchical superiors become more firmly integrated in the group. They often become leaders of the defense or counterattack, actually becoming workers in the solution of this group problem. It may be that hierarchical superiors have more at stake when danger threatens. At any rate, in rationing the superiors were almost

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always involved when danger threatened. T h e n their high position and prestige were used for all they were worth. Conflicts with the supply agencies was a typical source of danger. In most of these conflicts, the whole hierarchy, including the administrator, was involved. In the early days, the superiors spent a good portion of their time on inter-agency matters. T h e early struggle between the O P A hierarchy and P A W over that agency's method of allocating petroleum was a struggle to remove an obstacle to successful gasoline and fuel oil rationing. W h e n the third administrator ordered the struggle stopped (through his newly appointed deputy administrator for rationing), he had decided that a continuing threat to successful gasoline and fuel oil rationing was preferable to a growing danger for O P A as a whole. This growing danger arose from the fact that P A W carried the struggle into the open and was doing much harm to O P A public relations. Since struggles with W F A did not come out in the open, they continued throughout the war, the whole O P A hierarchy continually warding off danger from that direction. Sometimes clearance with the Bureau of the Budget became a source of danger; a veto was threatened. In these cases the hierarchy was always involved. Likewise, attempts by O P A management groups outside of the rationing department to gain some control over rationing activities usually ran into the deputy administrator for rationing, bedecked in full panoply of war. Part of the importance of the protective function of the hierarchy, as in many of its other functions, lies in the prestige of the superiors—the romance of distinction. W h e n big dangers threaten, big guns are rolled out and big shots fired. Furthermore, decisions which affect the purpose of an administrative group or its ability to discharge that purpose are nearly always made at a much higher level. T h e group's only possibility for representation is through its superiors. Consequently, the group expects its superiors to watch out for its interests in those high and mighty councils where purposes and groups are moved about like chessmen on a board. If the superiors do not protect the group's purpose in those encounters, the group loses confidence in the superiors. T h a t is precisely what happened to the second deputy administrator for rationing. W h e n he "sold out" to P A W without warning (see above, page 2 6 3 ) , he lost the confidence of his chief petroleum rationing subordinates, many of whom resigned or transferred out of the rationing department. He was reputed to have said to an industry group, "If you think gasoline rationing is bad, you ought to see food." Whether he actually said this or not is unknown to the author. 0 However, the general belief that he had said

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it was a blow to the morale of food rationing personnel. When the deputy administrator's office showed an increasing willingness to allow "management experts" from the OPA budget office and the Bureau of the Budget to analyze rationing procedures, confidence in the "Front Office" diminished apace. Protection against danger is a function imposed upon superiors bv the very nature of group relationships. It is a function for which the romantic prestige attaching to hierarchical superiors peculiarly equips them. Sincere performance of the function is one of the principal criteria by which subordinates evaluate their superiors. The Critique of Implementations The most controversial and dubious of all functions performed by rationing superiors was the criticism of rationing implementations. A rationing plan or procedure, to simplify, was a logical result derived from a value (rationing purpose) and the facts of the situation. (Actually a plan is composed of a number of such syllogisms.) The three variables are ( 1 ) the purpose, (2) the facts, and (3) the ability to use logic (including analytical ability, ability to state and solve problems, etc.). An hierarchical superior may be superior to his experts in number 3, or he may not be. If he knows more about the group purpose (number 1 ) than his inferiors, he can undoubtedly criticize a plan with creative results. However, he need not know more about the group purpose than his inferiors. He could share his secret with them. To allow his inferiors to spend time implementing the wrong purpose would appear to be quite stupid. If the group purpose is a part or implementation of a larger or more abstract purpose, so that a superior acquires the function of assignment, he can, perhaps, criticize the group product from the standpoint of this larger purpose. Rationing purpose was almost complete in the rationing branch, as has been shown. Assignment took place almost entirely at the branch chief level or below. As for the facts (number 2), the rationing superiors simply did not have them (except facts of the political type, from which stemmed their political function). In rationing, nearly all rationing information was centered in the branch, as was ability to interpret that information. The only exceptions to this statement were ration banking and currency accountability information, divisional field sections (whose information about field reactions was not always reliable and, at any rate, was immediately routed to the branches), and a divisional statistics section in the fuel and automotive rationing division. (This section was operated entirely as a service to the branches in the division.) Thus, even though a superior were actually

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sup rior to all of his subordinates in problem-solving ability, he would almost never have the facts with which to criticize a rationing plan or implementation. In order to criticize an implementation, he would have to be thoroughly briefed by someone who knew the facts. Thus, when superiors decided to review a plan for "technical adequacy," they called in the person who knew most about it (or his superior) and questioned him at some length. A superior who really believes that he is more expert than his experts may try to review and become familiar with everything put out by the group. If he does, the group must settle down to the pace and quality of one man, and imagination and initiative are stifled. If the superior only gets into things now and then, criticizing implementations only occasionally when he happens to see them, he is organizing "quality by accident." If his review is creative, it should be exercised on as many things as possible. Generally speaking, the first division directors criticized the rationing plans of their branches, while the first deputy administrator did not assume this function at all. T h e first division directors were actually members of the planning groups. They knew as much about their rationing programs as anyone else. In the latter days of rationing, this general pattern was reversed. Division directors did not assume the function of critics of implementations while the deputy administrator's office assumed that function more and more as time went on. Thus, while the first deputy administrator could not keep himself and one secretary busy during the hectic period when all the rationing programs were being planned and installed, later deputy administrators in the period when no new programs were installed found need for an assistant deputy administrator, two secretaries, and an administrative assistant. Some examples of hierarchical review of implementations will illustrate the extreme difficulty of finding a rational basis for such a function. A new deputy administrator, unfamiliar with rationing history, might criticize many things. Thus, one of the first meat point price charts (put out monthly) presented to a new food division director was taken up by him with his superior, the newly appointed second deputy administrator. T h e deputy administrator thought the matter was one which should be discussed with the OPA administrator, and so the meat point price chart was discussed a third time with the administrator. Setting the point prices for meat (or processed foods) was a function which could be performed only in the branch. Several times the deputy administrator tried to get food rationing branches to change point prices, but they never did. T h e deputy administrator (or the division director)

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never dared to change those points on his own responsibility. Only the food rationing branches had the necessary facts and could interpret them. Releasing odd lots of shoes from rationing was an annual event in shoe rationing. It allowed shoe dealers to keep their inventories clean (by getting rid of shop worns, bad buys, end sizes, etc.). W h e n the last deputy administrator first received an odd lot release amendment, he raised several objections. H e noticed that the implementation was not logically related to what he conceived to be the purpose of shoe rationing; it was non-rationing. T h u s , he criticized the implementation from the standpoint of the purpose of the group. However, the group had been allowed to accept or develop a concept of purpose which included the idea of an annual odd lot release. T h e new deputy administrator had to redefine the group's purpose or clear the odd lot release. H e talked the matter over with the administrator and finally cleared the odd lot release. 7 T h e last deputy administrator was hesitant about approving the issuance of a special children's shoe stamp on M a y 1, 1945, because he thought it would create too much field work load. 8 This criticism was based on a factual analysis. However, the best information in Washington about rationing field work load was to be found in the rationing branches. U p until close to the very end, branch personnel were the only ones who had ever tried to define and measure field work load. Part of his experts' job of devising rationing implementations was to take into consideration such facts as field work load when devising such implementations. By criticizing their implementation he criticized their expertise, and to do this he had to assume that he knew more about field work load and facilities than his experts did. (He was previously an O P A regional administrator.) M a n y of the implementations criticized by the deputy administrator's office (and also by division directors) were referred to that office by inferiors for criticism. T h a t is, the inferiors first criticized the implementation, themselves, and then presented their criticism to their superiors. T h a t inferiors referred matters with potential political repercussions to their superiors has already been pointed out. They also referred matters simply to get the superior's criticism or advice. They did this when an implementation inconsistent with their purpose seemed worthy of consideration. Such an inconsistent implementation implied a hidden purpose and inferiors wanted the matter thoroughly aired and wanted their superiors to share responsibility for the decision. Inconsistent behavior is regarded with suspicion. Inconsistency is the cue to reprehensible conduct.

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W h e n the shoe rationing officials decided to re-ration infants' shoes, sizes 0 - 4 , the matter was presented to the deputy administrator. He was immediately troubled, of course, because either this move conflicted with branch purpose or the previous unrationed condition of these shoes was in conflict with branch purpose. Actually, a new set of facts had changed the result of the syllogism. (See above, page 1 5 1 . ) W h e n the gasoline eligibility committee thought that there was something to say for a rule which conflicted with the purpose of gasoline rationing, it often referred the matter to the "administrative officers"— the hierarchical superiors. T h u s , in the case of the Inter-American Defense Board, discussed before, a relaxation of the pleasure driving ban for the Latin-American Officers of the Board and their families was alleged to be a way of implementing international objectives. T h e committee referred the matter " t o the administrative authorities with a full statement of facts, but without recommendation." T o the extent that the hierarchy actually could criticize branch implementations it was because of a faulty or incomplete statement of rationing purpose. For the most part, each branch developed its own concept of purpose, both historically and rationally. Thus, it sometimes happened that the hierarchy, particularly the deputy administrator's office, could criticize a proposed implementation from the standpoint of an "inarticulate major premise," a hidden purpose. T h e shoe rationing officials had a perennial problem of keeping low-priced shoes moving. People preferred to cash in their ration stamps for high-priced shoes which would last longer (and thereby increase the individual's ration). In December of 1944, the shoe rationing branch conceived a solution for this problem. T h e solution was to validate the next two stamps only for low priced shoes ($3.60 and b e l o w ) . This plan would certainly have moved out the low-priced shoes and was favored by O C R . W h e n it was explained to the new deputy administrator, however, he opposed it. He did so on the ground that, under the plan, the low-priced shoes would fall into the hands of the wrong people. T h a t is, they would not all go to the low-income group. Protecting the poor in this specific sense had never been considered part of the rationing purpose. Therefore, he was criticizing the implementation on the ground of a concept of rationing purpose different from that of the shoe rationing branch. 9 Most hierarchical criticism of branch work was based on hidden purpose. T h a t was almost the only possibility in the situation. One of the chief reasons why external pressures were converted into hierarchical pressures rather than " c o m m a n d s " was that the hierarchy, although submitting to the pressure, was unwilling to redefine the purpose of the ra-

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tioning branches. It was difficult, for example, to assign the objective of rationing so as to achieve political popularity. Instead, the hierarchy spent weeks and even months tTying to convince the branches that they " o u g h t " to make certain changes. B y the end of rationing, the deputy administrator's office had assumed the function of criticizing implementations to such an extent that the assistant deputy administrator sent back ordinary correspondence to branch writers with suggestions for changes. H e spent several days working on the 1945 sugar home-canning program and actually designed a part of the application form. Workers in the branches spent more time in his office answering detailed questions about technical rationing procedures than their hierarchical superiors did. Dissatisfaction with this "interference" grew very strong, and at least one division director threatened to resign. Since the deputy administrator's office could not possiblv find out enough about all the plans and procedures which went out to actually criticize them for "adequacy," it tended to get into things by accident. Thus, at the last, the deputy administrator's office had organized "quality by accident." THE CONTROL

PHILOSOPHY

T h e increasing assumption of the function of criticizing rationing implementations had behind it a stereotyped philosophy of administration which we may call the "control philosophy." This philosophy was particularly strong in the administrative management department of O P A . Personnel of that department could hardly tolerate the " f r e e d o m " of the rationing branches and divisions. They characterized rationing as a series of side shows all going on at once under one tent. M a n y persons in the rationing staff divisions shared this philosophy. T h e various reorganizations of the department were largely informed by it. T h e criticism of rationing which stemmed from this stereotyped notion of administrative relationships was not a criticism of rationing programs, of rules and procedures. T h e critics did not contend that rationing was a failure. W h a t bothered them was that the organization relationships of rationing did not correspond to their ideas of what organization relationships should be like. Specifically, they revolted against the practical freedom of the branches and divisions. "Authority," they felt, should be delegated downward by those on top; but it should be clearly understood that the "authority" belonged to the top. (By "authority" they meant the "right" to do something—almost a legal notion.) In rationing assignments were not made by the hierarchy because they could not be. TTie rationing branches had to make their own assign-

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ments. N o one else knew what to assign. T h e branches planned implementations on their own initiative and presented them to the hierarchy for approval. T h e hierarchy rarely disapproved them bccause it did not have enough information (or superiority in problem-solving ability) to do so. W h a t the control philosophy critics wanted was some way in which assignments could be handed down from the top ( the department level or even the agency level ), and more of the branch proposals could be rejected. In short, they wanted authority to reassert itself and continually to make itself manifest. T h e control philosophy was the philosophy of authority for authority's sake, control for control's sake. Since the "top side" could not actually take over the assignment function, the nearest thing it could do was to have all ideas which might later become a rationing implementation reported to it as soon as they were conceived in a branch. Thus, beginning in July of 1944, the divisions were asked to submit a weekly report to the deputy administrator, in triplicate, listing all projects "in preparation or under consideration." T h e report was to show ( 1 ) the nature of the project, ( 2 ) timing, ( 3 ) work load, and (4) "other information." 1 0 T h e purpose of this report of pending projects, as the assistant deputy administrator said to the deputy administrator, was "so that we can get into them before it is too late." 1 1 At the same time, and further indicative of the growth of the control philosophy, the staff assistant in charge of the control desk function got a set of near absolute deadlines imposed for submission of board looseleaf material. Materials submitted to him up until 4:00 o'clock Tuesday would be mailed to local boards the following Saturday. Materials submitted to him between that time and 4:00 o'clock Friday would be mailed to local boards the following Wednesday. Waivers of these deadlines were only by express permission of the deputy administrator or the assistant deputy administrator. Some idea as to the purpose of this control can be gathered from the following words of the staff assistant referred to above. W e could . . . continue to handle ten or fifteen items a week on a custombuilt schedule. This is largely a matter of whether we want to maintain a messy system of operating the Loose Leaf Service because of sloppy operations in the divisions. 12 A few months later the deputy administrator's office almost solved the problem of getting control of assignments by installing the "request procedure," described previously. This procedure, it will be recalled, provided that branches must request permission to make any program change. About the same time (near the end of 1944), the branches were required to submit to the deputy administrator weekly progress reports

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showing the status of all implementations worked on during the week. W i t h "requests" presented before any implementation was begun, and weekly progress reports to show how fast work was moving ahead on the approved requests, the department was ready for the control philosophy to suggest a work control system (chart, board, etc.). This suggestion was forthcoming from a staff assistant in a memorandum of March 13, 1945, to the deputy administrator. H e suggested extending the request system to include everything and getting more information in the weekly progress reports. Furthermore, he said, someone should develop a detailed time schedule for each step in the process of preparing a project and set up a comprehensive departmental work chart. T h e n , he said, someone must follow-up when projects do not keep up to schedule. " T h i s may be a difficult part of the program to handle if the Department continues to be afflicted with Divisionitis in a malignant form." T h e staff assistant was allowed to set up such a work control system and did so. It never accomplished anything, of course, because the originating impetus came from the branches. T h e y could avoid the work control system either by not originating a project in the first place or bv withdrawing it later. Branch personnel worked on the problem that had to be solved immediately, even if this meant allowing some project to lie dormant for months; and only the branches knew what problem had to be solved immediately in nearly all cases. If the deputy administrator became personally interested in a project (as when he was acting as the channel for a pressure), he kept himself informed of progress by calling the division director or the branch chief, and in like manner he "needled" them to greater speed. W h e r e the control philosophy took the rationing department maybe shown by the special and recurrent reports prepared by rationing branches for the department during the month of January, 1945. 1. A report evaluating the success of each regional office in handling its program. 2. Data to be used by the deputy administrator at a Washington meeting of all regional administrators. 3. A report showing how its program's forms in the field could eventually be disposed of. 4. A n estimate of the monthly board work load caused by its program. (This was a recurrent report.) 5. A n estimate of district office work load. 6. A weekly memorandum giving "basic rationing data on a current basis" to help keep the deputy administrator and assistant O P A administrator reasonably informed about rationing.

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7. Weekly progress reports. 8. Supply and demand charts to justify rationing. 9. A listing of all branch "inter-agency contacts" and a description of each. 10. A three months estimate of branch work. This estimate had to be kept current. Whenever a branch became sure that it would undertake some project during the next three months it had to revise its estimate of what it would be doing for the next three months. 1 1 . Material for the deputy administrator's Weekly Letter. 1 2 . Estimates and justification for next quarter's travel. A t the end of rationing, some branch personnel thought that they spent so much time explaining to their superiors what they did (and justifying the same) that they did not have much time left to do anything. There was some basis for that feeling. As the control philosophy developed in rationing it tended to pervert the early good relationship between the working groups and their hierarchical superiors (especially the deputy administrator's office). 1 3 More and more the rationing branches had to justify the improvements they wanted to make—their solutions to the problems they faced. T h e relationship tended to develop into one where the working people seemed to be mischievous children who had to be controlled rather than experts who were actually responsible for the successful rationing of a commodity. And, indeed, the control philosophy is basically paternalistic. Rationing did not improve under the guidance of the control philosophy. Any improvement which came about resulted from a naturally increasing proficiency in the use of regulatory techniques by the people in the working groups. W h e n the rationing department crumbled at the end of 1945 because of the termination of all programs except sugar rationing, the sugar rationing branch was "transferred," intact, to the price department. Sugar rationing did not deteriorate when released from the paternal controls of the rationing hierarchy. Perhaps the efficacy or usefulness of the departmental "controls" can be demonstrated by one illustration used before. In the spring of 1945 the chief of the fuel oil rationing branch decided to concentrate his branch's attention henceforth on the problem of field supervision. He decided to try to keep his program from being changed any further. Whereupon he withdrew or cancelled about two dozen "requests," all of which had been approved by the hierarchy as "essential."

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T H E ROMANCE O F T H E SUPERIOR An analysis of the actual functions of rationing superiors listed above will show that all of them, except the criticism of implementations, depend for their significance upon one or both of two things. One of the things is an organizational need. T h e other is more in the nature of a social condition. T h e organizational need is the continued existence of a pre-arranged way, convention, agreement, or procedure for settling working problems which are sure to arise. T h e social condition is the continual drive for distinction, for status, and the universal tendency to be impressed by distinctions; it can loosely be called the "prestige sentiment." As for the function of criticizing implementations, its only possible validity is in organizations where the group purpose is itself only an implementation of a wider or more abstract purpose. There it is either a policing of assignments (perhaps by sample post-audit) or the technical review by an expert of the work of untrained or semi-trained personnel. Even in such an organization, however, it is likely that assignments would be better if they were to some extent, at least, the result of group decision by the group to whom they are assigned. Rationing organization and function being as it was, the only place for the assignment function, and hence the function of criticizing implementations, was at the branch chief level and below. T h e best example of the purely conventional function was the settlement of conflicts. T o the extent that it was really helpful to have formal channels of communication, the communicative function was also purely conventional. All that was needed was to make sure everyone knew what the channels were. T h e political function, to the extent that it was merelv to channelize pressures, was also largely conventional or procedural in practice. T o the extent that superiors did not channelize the pressures, that is, fought back, they were discharging the function of protection against danger (which is based on the romance of distinction). T h e function in rationing which has been called "the superior as a worker" is really not a function at all. It is an obligation, incumbent upon all persons, outside as well as inside an agency, to make good suggestions whenever they see the opportunity. (There is much nonsense in public law about the right to petition or to present arguments for or against something. T h a t is a "right" which everyone has as long as the person to whom a suggestion is addressed cannot stop it until after it has reached him and he has read it.) T h e other functions listed depend for their importance upon the personal distinction attached to hierarchical superiors bv the "prestige senti-

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ment." These functions are the protection against danger (which also includes to some extent the conventional function of spokesman for the group or outward communication) and sale of the product. (Also may be added the communicative function to the extent that superiors prefer to deal with superiors.) Since the "prestige sentiment" is a social fact, the functions to which it gives rise are as important or "necessary" as any others. The "prestige sentiment" is supported and maintained by an extensive drama of distinction. Although the spirit in OPA was much more democratic than in most organizations, this drama played itself out in the rationing hierarchy as it does in all other hierarchies of our society. For example, it expressed itself in the distribution of working facilities. Roughly speaking, working facilities were distributed in inverse ratio to need. At the bottom were the workers crowded together in open halls with their desks back to back and side to side. At this level, where the writing took place, there were very few stenographers or typists. Many of the workers spent a fair portion of their time looking or waiting for typists. Most of them wrote their material out in long hand or typed their own first rough drafts. Phones were difficult to get at this level, and usually several people shared one phone. A very few of the lucky ones got a rotary floor fan to put by their desks to help them get through the almost unbearable Washington summer days. As one went up the hierarchy, conditions improved. Branch chiefs nearly all had offices built around their space in the wing. The offices were equipped with one or more fans. These offices frequently took up about half a bay (a bay usually contained from five to ten workers). Branch chiefs had their own "secretaries" and phones with two extensions. The secretaries took dictation and did typing only for their boss. Efforts to get secretaries (of branch chiefs and higher) to help out the workers were usually not successful. Stenographers all looked for the day when they would work for only one man. This desire was not based on laziness, but on the distinction of such a position. The branch chief's secretary took his phone calls, and most of them learned to make the caller state his name and business before he was connected with the branch chief. This practice distinguished the branch chief as an important person. When he wished to make a phone call he asked his secretary to dial the number for him and call him when she got the number (he had an extension 011 his desk). This practice carried the impression to the party waiting on the other end of the line that the branch chief was a vcr\' busy person who could not waste time waiting for the other party.

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At the division director level, the facilities were much more lavish. He had a large office (usually a corner office) which took up a whole bay. Some of these offices had air-conditioners. He had a secretary and sometimes a clerk-typist as well who often occupied a little outer office of their own. T h e division director had two phone lines with one extension on his desk, one outside on his secretary's desk, and a little switch board to enable him to talk only to his secretary outside or to parties on either of the lines. W h e n he wanted to call someone, he buzzed his secretary and talked to her over the phone asking her to place the call. W h e n she got the connection, she buzzed him, told him over the phone that she had his connection, and he then switched his extension to the line on which the party was waiting. This procedure probably took more time than calling the party in the first place. Persons suddenly elevated to division director's status had some difficulty learning how to operate the phone system. T h e deputy administrator had about the same facilities as the division director, but in addition he had an "administrative assistant" ( C A F - 7 or 9 ) . In addition to working facilities there were purely irrational evidences of distinction claimed by superiors. Thus, at the division director's level, one could have an "executive" desk, somewhat larger and more ornate than ordinary desks. Also at this level one got a leather upholstered desk chair and frequently a red or green rug for the floor. T h e rugs were particularly prized evidences of distinction. One person suddenly raised to the rank of division director was so anxious to get the rug distinction that he took the first one he saw lying in the hall and put it in his office. It was too large, and so he cut it in half, later to discover that he had cut in half the rug being saved for the O P A assistant administrator. Another purely irrational evidence of distinction was the "executive dining room" where, until 1 2 : 1 5 , P e r sons at the grade of C A F - 1 3 and above could eat, and after 1 2 : 1 5 o n t y persons C A F - 1 4 and above could eat. M a n y hierarchical superiors had, or had acquired, personal habits or traits or tricks which emphasized their lofty positions. M a n y of them would call subordinates into their office to talk to them rather than go to the subordinate's office or desk. Frequently, they kept their subordinates and others waiting for some time in the outer office with the secretary. (This was sometimes necessary because someone else was in the office.) W h e n the subordinate or other person was admitted, many superiors adopted the trick of placing several phone calls during the course of the conversation and interrupting the conversation to answer them as they came in. T h i s practice often extended the conversation for periods two

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or three times as long as they needed to have been. There were meetings called by the deputy administrator with from five to ten persons present where he spent about half his time placing phone calls and taking them when they came in. Thus, he wasted much time of several people, all CAF-13 and above. This practice is often a consciously adopted trick of the superior, as unnecessary as it is discourteous. Enough has been said to show that in O P A as elsewhere the drama by which superior status is maintained went on and on. T h e distinctions sought symbolize and create authority—the ability to influence people. Through these distinctions, the element of social fear is enlisted as a sanction for obedience. These distinctions are an integral part of the institutional pattern of hierarchy. SUMMARY T h e rationing branch was a remarkably strong and enduring unit of organization. It was also a "natural" and spontaneous unit of organization. T h e branch existed as soon as the decision to ration a certain commodity was made and people assigned to the planning of a program. T h e group which planned the program was then called a "branch." ( T h e first branches were called "sections," later "divisions," and finally "branches.") T h e strength of the rationing branch was in the completeness of its purpose and the fact of its responsibility. Some people would deny that the branches were responsible. T h e y would say that responsibility is a monopoly of hierarchy. People who argue in this way regard responsibility purely as a moral theory. Responsibility, however, is a psychological fact from which the moral theory is merely deduced. T h e fact of responsibility can be discovered by finding out who got blamed and who felt most badly about it. In rationing, blame was directed chiefly at branch personnel, and criticism was a painful experience only to branch personnel. For example, an examination of the trade press will show that industry did not direct its criticism at O P A or the administrator or the deputy administrator for rationing or the staff specialists, but at the branch chief or the branch. O P A personnel, in Washington and in the field, also directed their criticism at the branches. If responsibility is regarded as a psychological fact rather than a theory of organizational relationships, the rationing branches were chiefly responsible for rationing. For this reason, branch personnel regarded with a great deal of hostility any "interference" with "their" programs. W h e n "power" was allocated to various departmental units without regard to the fact of branch responsibility, conflict ensued.

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From the foregoing analysis of the rationing hierarchy, it is possible to make certain general conclusions. The conventional functions of hierarchical organization should be based upon needs widely recognized in the organization. Organization for needs not generally felt to exist caused much conflict and unhappiness in rationing. Especially bad was organization for "needs" which arose solely from an organization stereotype. In addition to the importance of a generally agreed upon procedure or convention to meet a generally felt need is the importance of having superiors who restrict their functions to those generally felt to be needed. Rationing superiors above the branch chief level would probably have been more effective had they been selected by the branch chiefs (and the division directors, in the case of the deputy administrator and the assistant deputy administrator). In fact, if the "prestige sentiment" had been entirely lacking, the rationing superiors could have been elected by all professional branch personnel (those who participated in planning). This sentiment was most definitely not lacking, however. Another possible conclusion from the foregoing analysis is that there was at least one too many echelons in the rationing hierarchy. The two branches of the miscellaneous products rationing division (shoes and rubber footwear) could have been included in either the food or the fuel and automotive rationing division. This move would have had no effect on either shoes or rubber footwear rationing. Rationing branches were self-sufficient units. Ration banking could have been given to either one of the two remaining divisions and any conflicts over ration banking facilities or services could have been settled by a previously devised procedure (perhaps a joint committee on conflicts). Currency accountability personnel could have been divided between the two remaining rationing divisions and any conflicts settled in the same manner. Then, the rationing department could have been abolished with some saving in personnel, considerable saving in time, and disappearance of the chief sources of conflict. However, such a reorganization would not have had much effect on the rationing product. Improvement of the rationing product was almost entirely dependent upon improved skill of branch personnel in regulatory problem-solving.

Part III. The Documents of Communication COMMUNICATION of a plan is just as important as the plan itself. In fact, communication is the means whereby the theory of a plan is tested. If the behavior uniformities envisaged in a plan actually occur, that fact proves that the plan was both communicable and communicated. Communication, therefore, is more than mere exposition; it is inducement to action planned in advance. Washington officials spent a good deal of their time in communicative activities. One whole department, the information department, was charged with the responsibility for seeing that the general public was informed of its rights and duties under O P A plans. Rationing branch personnel worked constantly, by means of trade bulletins and meetings, to keep the industry informed and in compliance. Specialized branch personnel prepared instructions to the field and local boards describing their duties under rationing. Branch and divisional personnel traveled in the field a great deal for the purpose of explaining rationing plans but mostly to induce compliance with the plans. Field personnel prepared additional instructions for, and held meetings and conferences with, lower level field personnel, especially boards. They also held public and trade meetings in their areas and prepared press releases for local papers. In fact, the principal function of rationing field personnel was communication—inducement to action along the lines planned in Washington. In all of this communicative activity, the principal function of Washington rationing personnel was the preparation of two types of documents—regulations and non-legal instructions. These documents were the original written forms of the plans; they were the "rules and regulations." They were the planners' statements of what the plans were. They formed the basis of the infinitely more far-reaching communicative activities that went on beyond the confines of the planning process. Lack of self-conscious rationalization in rationing was nowhere more apparent than in the part of the process which involved the regulations and instructions. Lack of previously developed techniques was most apparent in this field of activity. Particularly undeveloped were ideas as to the form, nature, and purpose of those documents called "regulations." When drafting the legal documents of rationing and interpreting those

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COMMUNICATION

documents, the rationing attorneys were communicating with a particular class of people—namely, all other attorneys. The uniformity of legal training makes attorneys a communicating group of people and provides them with a rough but fairly workable system of communication— namely, legal methodology. Thus, although the rationing legal documents were very ineffective means for imparting much information about rationing to non-attorneys, they could and did communicate many rationing plans to attorneys in and out of OPA, including judges. The rationing legal documents were part of a system of legal communication. Legal communication is communication with attorneys. Large business firms habitually depend upon attorneys to interpret government to them, and the rationing legal documents communicated the rationing plans to these attorneys. Unless involved in court proceedings or suspension hearings, however, most members of a regulated industry were informed about the rationing plans by means other than legal documents—e.g., non-legal instructions, the press, the radio, etc. Parts of the rationing plans involved the behavior of judges, and the rationing legal documents had to communicate some rationing plans to judges—i.e., elicit desired responses from them. Such parts of the rationing plans were those imposing legally enforceable duties. When drafting rationing legal documents, the rationing attorneys did not confine the objects of their communication to persons who habitually depend upon attorneys to interpret their government to them, nor the subject matter of their communications to matters which had to be communicated to judges. They sought to communicate with everyone— the field staff and the general public, as well as business firms—those without enforceable rationing duties as well as those with them. Thus, rationing public administration tended to be converted into law, even as public administration in general is becoming so converted. The attempt to communicate all aspects of the rationing plans by means of the legal methods of communication, had it been a consciously directed attempt, logically would have implied either that the general public could detect the meanings of the regulations, which undermines the legal interpretive monopoly, or that the general public would have to depend upon attorneys to interpret their government to them, which would create a work load which the attorneys could not handle and the public could not afford. The application of the legal method of communication to all aspects of the rationing plans did not have conscious thought or purpose behind it. Rather, it seems probable that neither attorneys nor non-attorneys have consciously rationalized the nature and purpose of the legal document in administration.

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T h e chapters which follow will attempt to discover the ideas behind the rationing documents, legal and non-legal, and to evaluate those ideas. T h e reader will discover that the technique of communication by document was not highly developed. This statement is not a criticism of rationing personnel but an observation on the state of the "administrative arts." T h e legal documents of rationing became extremely complex. It was almost impossible for a non-attorney, whether an O P A official or otherwise, to "find" the rationing law. O P A officials became more and more dependent upon the rationing attorneys for knowledge about the rationing law.

Chapter 11,

RATIONING RULE-SYSTEMS

rationing rules were always a part of a large document which contained a system of rules thought to be integrated into a whole or unit by some organizing principle. The final rationing rules systems were as follows: ration orders, general ration orders, procedural regulations, and revisions thereof. Originally, a ration order described a rationing program, that is, how one commodity or related group was rationed. As time went on, more and more of a rationing program was described in legal documents other than the ration order. At first, ration orders were not all called "ration orders." Some were called "rationing orders"; thus, Rationing Order No. 2 and Rationing Order No. 3. In later revisions, this lack of uniformity was corrected, and finally all were called "ration orders." Some of the first ration orders described only a small part of a rationing program but informed the readers that the rest of it would be described in another document with a longer title. Thus, Section 1360.110 of Ration Order 2 (automobiles) stated: "Regulations applicable to this Order (Sections 1360.101 to 1360.110, inclusive) shall be established by this Office by the issuance of New Passenger Automobile Rationing Regulations." "New Passenger Automobile Rationing Regulations" were issued and effective the same day as Ration Order 2 (issued January 30, 1942, effective February 2, 1942), as a separate document using section numbers (1360.111 to 1360.1 2 1 ) borrowed from the middle of Ration Order 2. For over a year, references to automobile rationing, to be legally accurate, had to be to "Rationing Order No. 2 and New Passenger Automobile Rationing Regulations." The document entitled "New Passenger Automobile Rationing Regulations" began: "Pursuant to Rationing Order No. 2 issued by this office regulations for the rationing of new passenger automobiles are hereby established. . . ." The original tire rationing program was not even described in a ration order at all. Until November 22, 1942, tire rationing was described in a document called "Tire Rationing Regulations" (changed in February to "Revised Tire Rationing Regulations"). T H E WWTTEN

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Ration orders were changed constantly by amendment. Even if a person had a copy of a ration order, he would not have up-to-date knowledge about the rationing plan. T h e amendments amended one another; some changed more than a hundred identifiable parts of the order. After thirty or forty amendments had piled up, it was impossible, as a practical matter, to trace through to the final statement of any particular rule. W i t h o u t a looseleaf service ration orders became useless documents. T h e attorneys acquired a looseleaf service late in 1942, and the local boards acquired one the following spring. After an extremely large number of amendments had been issued, the attorneys, if they had time, would rewrite and reprint the ration orders, consolidating all amendments into the text. T h e ration order would then be called a revised ration order. For people who had looseleafs, the consolidation of amendments into a revised order meant throwing away all the pages in their looseleaf ration orders and inserting new pages which said exactly the same thing. For persons without looseleafs, a revised order, if they could get copies, meant that for a very short time they would have a written document which accurately described the rationing program. In a few weeks, however, it became more useless than last year's magazines. Consolidations had absolutely no legal importance because a looseleaf (up-to-date) version would always be used if needed in court. T h e consolidation, logically, should have had behind it some idea of improving the written document as an instructional device. But the only way a ration order practically could be used for instructional purposes was to put it in looseleaf form, and for looseleafs consolidations were unnecessary. T h e chief motivation behind consolidations was an esthetic one. T h e idea of the ration order was kept purified in this way, rather than the physical document which would only be kept purified, and was kept that way, by the looseleaf device. Some attorneys, when consolidating the amendments in a ration order, preferred not to use the term revised ration order. Instead, they added a letter to the number of the order. Thus, Ration Order 6 (rubber footwear), when revised, became Ration Order 6A. T h e revision not only consolidated the amendments but removed obsolete provisions and made some procedural reforms and simplifications. Most of the revisions and consolidations, however, resulted in revised ration orders. Adding a letter to the number of an order usually meant that the program had been radically changed, had become, that is, a new program. Thus, Ration Order 9 described a program whereby coal, wood, and oil stoves were rationed in the fuel oil shortage area (the East) in order to save fuel oil. Ration Order 9A, on the other hand, described a program

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whereby all types of stoves, including gas and electric, were rationed throughout the United States because stoves were scarce. The number of amendments allowed to accumulate before an order was revised depended upon how busy the attorneys were or how fast they worked. Consolidations took considerable time and could only be undertaken when some of the attorneys assigned to a rationing branch had time on their hands. This situation did not occur very often because of the great and constant volume of work drafting amendments, interpretations, and other types of rationing legal documents and clearing every type of document (including correspondence) produced. Some ration orders were never consolidated, others only after a very large number of amendments had accumulated. Ration Order 17 (shoes) was never consolidated, having accumulated m amendments by the end of the program. The same was true of Ration Order l A (the tire program beginning in December, 1942, which carried out the recommendations of the Baruch Report). It also had 1 1 1 amendments by the end of the program. Ration Order 1 1 (fuel oil) accumulated 95 amendments before it was consolidated. Ration Order 5C (gasoline) accumulated 185 amendments before it was consolidated, three months before the end of the program. Ration Order 3 (sugar) had accumulated 1 1 2 amendments before it was consolidated. After the consolidated order had accumulated 52 amendments, it was consolidated again. By December of 1945, the second revision had accumulated 52 amendments. Ration Order 13 (processed foods) had accumulated 101 amendments before it was consolidated, and Ration Order 16 (meat, fats, and oils) had accumulated 143 amendments before it was consolidated. By the time these programs had ended, Revised Ration Order 1 3 had accumulated 86 amendments, and Revised Ration Order 16 had accumulated 87. Although the original ration orders contained fairly complete descriptions of the various rationing programs, as time went on, certain parts of the descriptions were abstracted from the ration orders and written up in a separate document which related to all rationing programs. These overall documents were called "Procedural Regulations" and "General Ration Orders." The ideas controlling the centralizing of parts of the program descriptions in general documents were not highly developed. Back of the general documents was the notion that "everything should be in one place." In order for that notion to be useful, however, one must go further and ask the question, everything in one place for what purpose? T o a consumer who depended upon legal documents for his knowledge about rationing, having appeals procedure described in one document (Procedural Regulation 9) would not necessarily be

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troublesome if the only thing he wanted to know about rationing was how to appeal. If he wanted to know more, centralizing the appeals procedure in Procedural Regulation 9 added one more document and one more frightening title for him to contend with. T o a businessman regulated by a rationing program, who depended upon legal documents for knowledge about the program, having a complete description of that program in one ration order was obviously desirable. T h e general documents would make finding out about a program more difficult for such a person. Thus, a shoe dealer would have had to have up-to-date copies of the following documents: Ration Order 1 7 (shoes) for most of his problems; General Ration Order 7 to instruct him how to transmit the shoe stamps he collected; General Ration Order 8 to find out about the prohibitions, penalties, and conditions common to all rationing programs; General Ration Order 1 if he wished to apply for an exception to the procedural requirements of the shoe program; General Ration Order 3A to instruct him how to open and operate a ration bank account; Procedural Regulation 9 to find out how to appeal from an adverse decision by a board or district office (such as a common one denying inventory restoration); and Procedural Regulation 4 if he became involved in suspension proceedings. There were many more documents in which he might have an interest but would not " n e e d , " such as Procedural Regulation 10 on the disqualification of board members. A food dealer would " n e e d " even more documents, and an industrial user of food would " n e e d " still more. T h e difficulty an individual who depended upon a ration order for knowledge about rationing would have finding out what law or ration order he came "under" can be illustrated by the following quotation from Section 1 of General Ration Order 1 6 ( "Reregistration of Industrial Users" ). This section points out that an industrial user was required by Revised Ration Order 1 6 and Revised Ration Order 3 to reregister between December 15, 1943, and January 5, 1944. It continues, However, if he did not reregister his establishment during that period, he may apply pursuant to section 7.2(g) of Revised Ration Order 16 or section 3.1 (d) of Second Revised Ration Order 3, or both, if he meets the tests specified in those provisions, for permission to reregister his establishment in the way provided in this order.—A person who wishes to make an industrial use of a rationed food and who is not already registered under the ration order covering that food, may not register with respect to that food under this order, but must apply for permission to register his establishment under the provisions of the ration order covering that food. T h e drive to centralize the location of descriptions of the rationing programs resulted in 19 general ration orders and 5 procedural regula-

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tions. The selection of subject matter for centralizing may have had conscious thought behind it, but for the most part it appeared to be accidental. The procedure governing the issuance of rationing suspension orders was originally described in the various ration orders. When the description of this procedure for industry suspensions was centralized in Procedural Regulation 4, the description of the procedure for suspending (revoking) consumer rations was left in the various ration orders. The procedure for appealing from most board or field office decisions was eventually described in Procedural Regulation 9. However, the procedure for appealing from decisions revoking some types of rations was described in Procedural Regulation 4. The procedure for replacing lost or stolen coupons was eventually described in Procedural Regulation 12, but the procedure for replacing other types of ration currency (such as certificates) was described in the various ration orders. Although the disqualification of board members was described in Procedural Regulation 10, the appointment of board members was governed by an OPA Field Administration Letter, and the territorial limitation and jurisdiction of boards was described in General Ration Order 4. The great mass of board procedure for determining rations was described in administrative and field instructions (not thought of as legal documents). Although procédural regulations were supposed to describe certain procedures common to all rationing programs, the procedure for issuing administrative exceptions to procedural requirements of the rales was described in General Ration Order 1; the procedure to be followed by a dealer when surrendering or depositing stamps was described in General Ration Order 7; the procedure to be followed by an industrial user to replace rationed food used in products shipped to an exempt (unrestricted) agency was described in General Ration Order 1 1 . Many of the general ration orders described uniformities in the food rationing programs. When institutional user rationing was about to be harmonized as between the various food programs (two new food programs were about to be established), General Ration Order 2 was issued requiring institutional users to keep certain records during the month of December, 1942. The institutional users program could then have been issued as an amendment to General Ration Order 2 ("Institutional Users" ). Instead, a second general ration order pertaining to institutional users was issued, General Ration Order 5, making two general institutional user orders instead of one. Industrial users of food had the same problem as institutional users; they were subject to the provisions of all the various food ration orders. No general ration order describing the

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industrial user program was ever issued. This program was described in the various food ration orders. However, certain parts of the industrial user program were described in general ration orders. In order to harmonize the approaches to industrial user rationing, industrial users were required to reregister at the end of 1943. T h e reregistration procedure was described in General Ration Order 16. A similar reregistration at the end of 1944 was described in identical amendments to the various food ration orders. All the food rationing programs had provisions allowing an industrial user who sold food to exempt agencies to get the rationed food he had used for this purpose replaced. Finally all these provisions were centralized in General Ration Order 1 1 . T h e industrial users program, therefore, was described in three food ration orders and two general ration orders. T h e industrial user might also " n e e d " certain other general ration orders and procedural regulations. Other subjects abstracted from the ration orders and described in general ration orders included the issuance of ration books; issuance of "Temporary Food Rations"; "Emergency Power of Regional Administrators"; " C h a n g e of Title of District Manager and State Director to District Director"; issuance of " W a r Ration Books for Certain Canadian Residents"; "Export of Ration F o o d s " ; etc. General ration orders and procedural regulations had their own amendments and revisions, and the problems of keeping copies of them up-to-date were the same as for regular ration orders. T h e proliferation of rules systems, which helped to make certain that legal documents would not be a good source of knowledge about rationing, sometimes had utility to some of the Washington office rationing officials. Whenever an organization unit was established to deal with some functional aspect of rationing, that unit developed a strong urge to have a ration order of its " o w n . " T h u s , the ration banking branch had three general ration orders (3, 3A, and 3 B ) . W h e n the rationing of institutional users of food was centralized in an institutional users branch, most of the institutional user provisions of the various food rationing programs were brought together in General Ration Order 5. T h e n the institutional users branch had "its own order" to work with. W h e n the ration currency control division was created in the summer of 1944, its director made a supreme effort to get all the provisions relating to the issuance, custody, flow-back and accountability of ration currency taken from the various ration orders and placed in a new general ration order on currency control. Such a consolidation of currency provisions would have left little in the various ration orders except consumer eligibility provisions and was successfully resisted by the rationing

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branches. Some of the general ration orders were initiated by centralized legal or rationing personnel who wanted them as symbols of their efforts and authority. In the rationing department, to be responsible for a rationing program was to have an important function, and the ration order was the symbol of a rationing program. The arguments for consolidation of rationing provisions into overall orders were that such a consolidation would put all the provisions into "one place," and that one order, being easier to change than several, could achieve more uniformity. Since currency control had no public counterpart, a general currency control ration order would have been only one more place for a gasoline dealer, for example, to find out about gasoline rationing. Such a general ration order would have put everything in one place only for the members of the currency control division and for the field currency control officers. The second argument for consolidation into general legal documents, while not logical, had some merit. Uniform provisions could have been provided, without general documents, by identical amendments to all the ration orders. This would have required more paper and typing time, but that is not an argument against identical amendments. It was difficult, however, to get all the rationing branches to agree on the same amendment. It took a long time to get a uniform provision adopted. However, if all the provisions relating to a certain subject were in a general ration order, the people responsible for that general order would still have to clear any amendment with all the interested branches. Therefore, logically, the only difference between uniform changes by identical amendments to several ration orders and by amendment to one consolidated general ration order was that the former method took more typing paper and typing time. However, in spite of this logic, there was a certain power strategy in general ration orders which, since it tended to create a transfer of authority or influence, could make amendment of a general ration order an easier and quicker way to achieve uniformity and to make uniform changes in the rules. This power strategy depended upon the psychological fact that it was easier to get away with making changes in "your own order" than in "somebody else's order." Centralized functional units drove for general legal documents, not because of putting "everything in one place," a completely specious argument, but because a general legal document enhanced their authority vis à vis the rationing branches. Most of the reasons given for the overall rationing legal documents were poor ones. There appear to have been no clear-cut guiding principles which governed the creation of the various rule-systems. The general

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ration orders and procedural regulations grew up under the impulses of esthetics, desire for authority, desire for distinction, and pure accident. If the legal document has a role of instructing the public, the confusion of documents and amendments thereto described above made it practically certain that no one would be instructed by the documents except large businesses with legal departments. However, the legal documents were not and could not be the means whereby the public was informed about rationing. 1 They were of interest chiefly to attorneys, in and out of OPA, and although the great profusion of legal documents described above and in the pages to follow could not have made the task of finding the law easy for the attorneys, it made certain that almost nobody else could find it.

Chapter 12.

PARTS OF RULE-SYSTEMS

THERE WERE many other kinds of rationing legal documents besides the large rule-systems described in the preceding chapter. AMENDMENTS T h e basic change-making document was the amendment. There were more than 2,000 amendments to rationing legal documents. Amendments included one or many changes in the rules, some changing more than 100 identifiable parts of a ration order. They were from one sentence to thirty or forty printed pages long. Although amendments were printed in the Federal Register as they were typed, and thousands of copies of Federal Register reprints were run off and mailed to various interested parties, the amendment as a document rarely contained any instructional material useful to the citizen or the field organization. For the most part, amendments were instructions to a printer of a looseleaf service. Thus, the amendment which made hardship rations available to fuel oil consumers in the Northwest merely stated: "Section 1394.5 0 5 1 ( b ) is amended by deleting therefrom the phrase '1394.5310.' " 1 ORDERS PURSUANT TO ORDERS In addition to announcing changes in the rationing law by the issuance of an amendment, changes were sometimes announced by the issuance of an "order pursuant to a ration order." Some of the ration orders had provisions which said that the deputy administrator or the division director could make changes in the order by the issuance of an "order." Thus, under Section 2.3(b) of Ration Order 9A (stoves), the director of the fuel rationing division could issue an "order" removing any area from the "emergency oil shortage area" under stove rationing. Such an order would make many persons eligible for oil stoves who before were only eligible for coal and wood stoves. Under Section 1407.86(b) of Ration Order 3 (sugar), the food rationing division director could issue "orders" temporarily increasing the allotments of industrial usen of

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33g

food in areas where military maneuvers had increased the demand for food products. Under Section 13.1 of Second Revised Ration Order 3, the food rationing division director could issue "orders" establishing and changing zones out of or into which shipments of sugar were restricted. Under Section 2.22 of General Ration Order 8, the deputy administrator for rationing, upon receiving an order from the Director of Economic Stabilization, could issue a "cancellation order" revoking all rations of any person or persons. (This technique was a desperate sanction for enforcing compliance with war measures.) These "orders pursuant to ration orders" were actually delegations of the power to sign a legal document to officials below the OPA administrator. The administrator signed all ration orders and amendments thereto. The program changes made by such "orders pursuant to ration orders" could have been made just as easily and quickly by regular amendment without creating other types of legal documents to complicate the job of finding out about rationing. There was nothing in the nature of these "orders" which made them a speedier method for changing the rules. They went through the same process except that they did not obtain the signatures of the administrator or the deputy administrator. However, those signatures were always formalisms. The content of a rationing action was normally cleared in conversations before the final draft was presented. The fact that a lower official had legal authority to issue such "orders" meant nothing. Administrative discipline is not a legal problem. Many attorneys thought of these "orders" pursuant to orders as delegations of a completely technical, non-policy forming power. Many rationing decisions were of this kind, however, and yet continued to be incorporated in regular amendments to ration orders. Thus, the unit values or the validity periods of stamps were arrived at almost mathematically and often were dictated by the supply agency, but they were never made the subject of an "order pursuant to a ration order." The only significance of the "orders pursuant to ration orders" was that they tickled the egos of the division directors by allowing them to get their names in the Federal Register and, hence, the newspapers. However, they created a few more types of rationing legal documents to add to the already confusing number. ADMINISTRATIVE EXCEPTIONS Another type of rationing legal document was the administrative exception. It was an order signed by the deputy administrator for rationing pursuant to Gênerai R'ation Order 1. Granting exceptions to the rules in individual casts whete they worked hardship was an activity in which

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district office and board personnel were constantly engaged. W h e n a board clerk allowed an applicant to apply on a piece of ordinary writing paper rather than on the form required by the regulations, or to leave out a question spelled out in the regulations, he was granting an administrative exception. There was so much mechanical procedural detail in the regulations that boards had to grant exceptions in order to operate within their legal straitjackets. W h e n it was proposed that the Washingon office be allowed to grant exceptions to procedural requirements of the regulations, a procedure governing the granting of such exceptions was established in General Ration Order 1 . Any person seeking relief from a ration order for which no provision was made in the order was to petition the deputy administrator, in writing, for such relief. H e had to show why granting relief in his case and in all like cases would not defeat the purposes of rationing. N o exceptions could be made to the rules governing eligibility or need for a rationed product. Administrative exceptions which affected many people were filed with the Federal Register. Those which affected only one person or firm were mailed direct to the petitioner, and a copy was sent to the nearest O P A district office. There were many administrative exceptions issued. In all cases, the change in the rules brought about by administrative exceptions could have been accomplished just as speedily and effectively by regular amendment of a ration order, without adding one more type of rationing legal document to the list. F o r example, under the tire rationing regulations (Section 8 0 3 ( d ) ) , dealers could not transfer tires in need of repair to consumers. Defense Supplies Corporation accumulated (through the tire return plan) two or three million tires which needed repair but could not be recapped. W a i t i n g for all these tires to be repaired would have resulted in a waste of rubber. Furthermore, many of the repairs could have been made by the consumers, themselves, such as putting in boots, inner liners, etc. Defense Supplies Corporation asked permission to transfer these tires to dealers and that dealers be allowed to transfer them to consumers (in exchange for certificates, of course) without repairing them. This large program was installed by means of Administrative Exception Order 47 to Ration Order l A (tires). T h e order was filed with the Federal Register and was accompanied by a press release the same as any amendment. It was not called an amendment, however, did not appear in any looseleaf version of Ration Order l A , and simply made the job of finding out about tire rationing more difficult. On August 3, 1943, eighteen separately typed administrative exceptions to the tire rationing regulations were issued allowing tire manu-

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facturers to ship specified numbers of tires to specified dealers in Alaska. In each case, the reason for allowing the shipments was stated to be that "Region I X of the Office of Price Administration has received many complaints as to the inadequate supply of tires in Alaska." This whole problem could have been handled permanently by a regular amendment. Most of the administrative exceptions in tire rationing allowed specific companies to ship tires out of the country. During the first four months of 1943, there were ten administrative exceptions to the tire rationing regulations allowing different companies with an excess of tires and tubes but insufficient orders to ship that excess to companies with no tires and tubes but plenty of orders. This could have been done under a general rule in the regulations (by amendment) with much more ease and dispatch. In the latter days of tire rationing, it became the practice to issue an administrative exception with a regular amendment accomplishing the same thing immediately following. T h u s , the administrative exception became a notice to act in anticipation of an amendment. Such a practice did not need the formalism of an administrative exception; it was followed normally by merely sending a teletype to the field office to take care of the situation with a legalizing amendment forthcoming. Administrative exceptions to other ration orders could also have been made into amendments. Several exceptions were obtained to Ration Order 1 1 to allow government trailer camps to file a consolidated application for fuel oil rations, rather than individual applications for each trailer as the ration order required. These administrative exceptions were actually a piecemeal solution of a former planning error. T h e ration order could have been corrected. Administrative Exception Order N o . 1 to Ration Order 2B (automobiles) applied a different automobile registration rule to the people of Ohio because of a peculiar motor vehicle registration law in that state. This administrative exception was filed with the Federal Register. It could just as well have been a sentence in the ration order. Administrative Exception N o . 1 to Ration Order 1 7 (shoes) allowed the Willmark Service System, Inc., to receive ration currency for making purchases during its work of investigating store personnel. T h e purchases were later returned. Other ration programs accomplished the same thing within the ration order. This administrative exception also allowed any other similar company or person to petition the division director in Washington (rather than the deputy administrator) or the O P A regional office for the same privilege. It established, that is, a continuing part of the shoe program in an obscure docunent called Administrative Exception N o . 1 to Ration Order 1 7 .

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T w o months later, exactly the same exception, signed by the deputy administrator, was given to the Dale System, Inc. Administrative Exception Order N o . 1 1 to Ration Order 1 7 allowed shoe manufacturers and distributors to apply to O P A district offices for permission to transfer single shoes (where the other shoe was missing) to repair concerns, scrap leather dealers, etc., without receiving ration currency in exchange Such a provision was merely a part of a complete shoe rationing program. It could have been in the ration order rather than hidden away in an administrative exception. In spite of the prohibition in General Ration Order 1 against granting exceptions which affected eligibility standards, some administrative exceptions did this. Administrative Exception Order N o . 8 to Ration Order 1 6 (meats, fats, fish, and cheese) allowed a furniture company which had acquired a large number of small packages of cheese to give to its employees at Christmas, according to its custom, to give the cheese away without receiving coupons (this kept the cheese from spoiling). Identical administrative exceptions to the food ration orders were issued in June, 1945, to provide ration books to persons being returned from the Philippines during that month and also to allow them "the following stamps in addition to any other stamps to which they may be entitled." Thus, the eligibility of these persons was enhanced by administrative exception, despite General Ration Order 1 , and this could have been done as well by regular amendment. Administrative exceptions were opposed by some rationing officials, both attorneys and non-attorneys. Some attorneys felt that they encouraged lazy thinking; that if the problem were thought out, an amendment would be seen to be the best technique. Back of the administrative exception device was abhorrence of a rule governing a very small group, especially a named group, in the regulations. Many rationing attorneys said that they thought classification into a very small group smacked of arbitrariness. However, such classifications were acceptable if described in administrative exceptions. In other words, the action was not at issue, but the type of legal document in which it was described. Preference for the administrative exception on the part of some officials was related to the desire to keep the ration order pure. T o many persons, the ration order was a sacred document. Nevertheless, the ration orders were filled with minute exceptions and conditions to general rules. T o other officials, the unpublished administrative exception was a useful device for granting a petitioner's request without other persons finding out about it and claiming the same treatment. Of course, the "same thing could be accomplished by providing in thè ration order for "adjust-

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merits" on petition to Washington. "Adjustments" were not thought of as exceptions and did not, therefore, come in for the same amount of procedural controls. T h e weakness of the administrative exception as a device for hiding favorable treatment was that it could not, theoretically, be used for changing eligibility standards, and that was the kind of favorable treatment that counted. Besides, favorable treatment cannot really be hidden. Changes in the rules brought about by administrative exceptions could have been accomplished by regular amendment, in every case, and about 100 or more additional rationing legal documents thereby avoided. OFFICIAL

INTERPRETATIONS

Another very important rationing legal document was the "official interpretation." Official interpretations contained much information about rationing programs. The official interpretations about bicycle rationing, digested in the O P A Service, the attorneys' looseleaf, filled more pages than the ration order. In the same Service, Ration Order 6 (rubber footwear) had 21 pages and the digested interpretations 27 pages; Ration Order 4A (typewriters) had 10 pages and 28 pages of interpretations; Ration Order l A (tires) had 1 1 2 pages and 100 pages of interpretations; Ration Order 5C (gasoline) had 188 pages and 1 1 4 pages of interpretations; etc. The interpretations in the O P A Service were only the digested ones—that is, those thought to be important enough to be distributed nationally. There were many more which were never digested. The digests of official interpretations in the "daily digest" and the O P A Service were not good sources of information about the rationing programs. They went only to attorneys. Although other rationing officials could obtain them, few of them did, or, if they did, they rarely used them. Most important, however, official interpretations did not go to local boards. (A few were eventually incorporated in board instructions.) Consequently, official interpretations had very little actual effect beyond settling the immediate case which brought up the question. Although boards did not receive official interpretations, many were directed to local boards, strangely enough. That is, many interpretations were instructions to boards about how to decide a certain kind of case. Concerning the eligibility for gasoline of union representatives who helped to maintain peaceful industrial relations, the official interpretation said: —The Local Board in determining whether this driving, or any portion of it, is necessary to maintain peaceful industrial relations at these places should consider:

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( ι ) The remoteness of the establishments or facilities to which the applicant goes; (2) other existing methods within these establishments for ironing out abuses. . . . Boards only found out about official interpretations other than the ones they specifically requested if the non-legal rationing officials found out about them and incorporated them in board instructions. F o r the most part, rationing officials responsible for board instructions did not find out about the interpretations or did not bother to incorporate them in board instructions if they did. Field attorneys admitted that "interpretations meant nothing until they appeared in the Local Board Service." 2 Furthermore, official interpretations were not published in the newspapers or the Federal Register. In general, the official interpretation was an attorney's instruction to the boards and to the public which did not get there. PREAMBLES Further illustrative of the lack of conscious design or planning in the preparation of the rationing legal documents was the use of the preamble. Some ration orders began with a preamble; some did not. Some ration orders had preambles originally, but the preambles were dropped when the orders were revised. Preambles were used for different purposes in different orders, and some were well prepared while others were included only to satisfy ideas about form without much attention being given to their content. T h e preamble to Ration Order 6 (rubber footwear) explains the reasons for rationing, the aim of the program, and gives a general description of how the program works. T h e general description of how the program works would answer the immediate questions of most consumers. Further details could be learned from boards. T h e preamble would not answer all the immediate questions of the trade, however. W h e n Ration Order 6 was revised, becoming Ration Order 6A, the preamble was revised to list the major changes made by the revision. T h e preamble to Ration Order 6A was really a rationale to the revision, having only momentary interest. If the preamble is considered as a continuing document rather than a news letter, the changes made in the preamble at time of revision did not belong in a preamble but in a press release or similar document. Ration Order 5, the original East Coast gasoline card rationing program, had no preamble. Ration Order 5C, the nation-wide gasoline rationing program, had a long preamble which stated most of the Baruch

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Committee Report as a justification for national gasoline rationing (to save rubber). It also contained a description of the basic and supplemental ration ideas too general to be of any instructional use at all. Chiefly, the preamble to Ration Order 5 C was a device for selling nationwide rationing. T h e preamble was practically eliminated by Amendment 84 (November 18, 1 9 4 3 ) , leaving only a recitation of the legal authority for the order. (Usually the recitation of authority was not a part of the preamble.) T h e rationale to Amendment 84 pointed out that gasoline was now rationed not only to save tires but to save gasoline which had become nationally scarce. Thus, this rationale was in effect a new preamble, but it was a preamble contained in a different and more obscure document. If the preamble really had any importance beyond drafting formalism, it should have been revised with the change in the program's purposes and left at the head of the ration order. Ration Order 3 (sugar) had no preamble, and neither did its revisions. Ration Order 7 (bicycles) had no preamble. Ration Order 4 (typewriters ) had none, but when it was revised a preamble was added which gave a fairly good general story about the program. Ration Order g (coal and oil heating stoves) had a preamble which stated only the purpose of the program. W h e n many other types of stoves were rationed, Ration Order 9 became 9A, and the preamble was changed to show the change in the purpose of the program. (In the first program, stoves were rationed to save oil; in the second, because stoves were scarce.) Ration Order 2 (automobiles) had no preamble. Ration Order 2A, which involved a considerable change in the automobile rationing program, had a one sentence preamble which recited the legal authority for the order. Certain parts of the old program were continued in effect. A footnote explained this fact and the relation between Ration Order 2 A and Ration Order 2. In other words, the only semblance of a preamble to Ration Order 2A was a footnote. In March of 1943, automobile rationing was geared in more closely to gasoline rationing under a new Ration Order 2B. This order had a preamble which explained why cars were rationed, what the previous orders accomplished and the changes in automobile rationing made by Ration Order 2B. It was a preamble for the previous orders and a rationale for the new Order 2B. It did not include a general description of how the program worked. Ration Order 1 2 (coffee) had a preamble which stated the purpose of the program and had a description of the program too general to be of any use. For example, all that was said about rationing institutional users (restaurants, hotels, etc.) was the following: "Institutions will receive bimonthly allotment certificates at their local war price and ra-

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tioning boards." Ration Order 1 1 (fuel oil) had a preamble which explained the reasons for the oil shortage and the purpose of the program. It also explained the various ration formulae well enough so that a person could have a good idea if he was being treated rightly under the ration order. Revised Ration Order 1 1 had about the same preamble plus the reasons for the revision. Ration Order 1 7 (shoes) had a preamble which gave a good explanation of why shoes were rationed and a fair explanation of how they were rationed. Amendment 98 ( 5 / 3 1 / 4 5 ) changed the preamble into a short statement of why shoes must remain under rationing, and the explanation of how they were rationed was removed. In other words, the preamble became part of a publicity campaign (after V - E D a y ) and nothing else. Ration Order 1 3 (processed foods) contained a preamble which was consciously designed to serve a real purpose. This preamble was the most readable and useful of them all. It was maintained throughout the program even after the ration order was revised. T h e first paragraphs were a very well-written sales talk to gain the readers' sympathy for the program. Our soldiers and sailors in combat areas must be fed—they must be well fed. The armed forces of our allies must be fed. War is fought, and won, as much by food as by munitions. Food is a weapon which we must forge and send wherever needed—to the millions of our fighting men—to our allies and their fighting men—to their fighters on the home front, in factories, in shipyards, in munition plants. Processed foods—canned and frozen fruits and vegetables, and dried fruits—have been aptly called "fighting foods." . . . our supplies are not sufficient to meet normal civilian demands. The supplies of processed foods which are available must therefore be rationed so that everyone can get his fair share. Having obtained the sympathy of the reader in this fashion, the preamble then gave an excellent, simple, general discussion of how the program worked. T h e subject matter of this discussion is organized under the following headings: W h y Processed Foods M u s t be Rationed (part of which was quoted above); T h e Point Rationing System; H o w Consumers G e t Processed Foods; How Other Users G e t Processed Foods; How the T r a d e Operates under the Order; and Adjustments at Trade Levels. T h e preamble to Ration Order 1 3 was written to be read, and to be read by the average person. T h e average person who read it would find out all he needed to know about the program, and more than he would find out from one reading of the ration order. T h e average person, however, never heard of that preamble or "Ration Order 1 3 " either. Ration Order 1 6 (meats, fats and oils, fish and cheese) had a similar preamble. W h e n that order was revised in June of 1944, however, the

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preamble was reduced to one sentence: "Ration Order 1 6 and Amendments 1 through 143 thereto are compiled and reissued as Revised Ration Order 16, to read as follows. . . ." From the foregoing discussion it is clear that among the rationing attorneys there was no clear understanding of the purpose of a preamble. Some attorneys did not even bother to include them in a ration order. Others added them later when an order was revised, while still others removed them from orders at the time of revision. Some attorneys used them as an explanation of why a revision was made and the changes brought about by the revision. Others used them to explain why an article became scarce and had to be rationed. M a n y attorneys used them to state the purpose of the program (like a statutory standard of delegation). Some attorneys used them to recite the authority for the program, although this was usually not a part of the preamble. A preamble was used on one occasion as part of a campaign to sell the continuance of the program after V - E Day. In one case, the function of a preamble was served by a footnote on the front page of the ration order. T o those who read it, a preamble can be made to serve a useful purpose. T o the field personnel, a general description of a program could have integrated the fearful mass of detail of a ration order and brought it into an understandable perspective. T o the public, a clear statement of a program's objectives can serve as a guide to fair treatment. A clear understanding of the spirit and purpose of a program may enable the individual to sense injustice under that program. Injustice then appears as an inconsistency or incongruity. Furthermore, a general description of how a program works, such as the preamble to Ration Order 1 3 , can answer most questions which the average person needs to know immediately about the program. Further details can be learned from field offices as the need arises and in the process of carrying out the instructions of the general description (preamble). However, the ration orders, and hence the preambles, went to very few people. Consumers did not receive them at all. Thus, the instructions to consumers and small firms contained in the preambles appeared to be strangely out of place. Some preambles were based on the idea that people would read them and learn something about the program from them, and yet most of the groups to whom they were addressed (consumers, generally) would never see them, and no attempt was made to get them to those groups. General information about the program went to consumers in many ways (leaflets, press, radio, etc.), but never by means of legal documents, with or without preambles. T h e fine work done on the preamble to Ration Order 1 3 was largely wasted.

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T h e nature, purpose, or possibilities of preambles were not appreciated by most rationing attorneys. There was no single uniform idea about preambles among them. However, for some reason, most ration orders had a preamble. RATIONALES T h e Emergency Price Control Act required O P A to file with each price order a "statement of considerations" explaining the facts and reasoning back of the order. T h e first rationing planning was done in the price division (later a department), and price personnel working on the early rationing programs continued to file statements of considerations with amendments to ration orders, although this practice was not required by law. By the summer of 1942, the rationing department (by then separated from price) was calling these statements of considerations "rationales," and the practice of filing a rationale with each rationing amendment was firmly established. Rationales were documents, drafted by the attorneys who drafted the rationing amendments, that purported to explain the reasons for any rationing action. Rationales were filed with the O P A Secretary; they were not published in the Federal Register. They frequently formed the basis for O P A press releases, the only official explanations for rationing actions. T o the extent that there was any conscious planning back of the institution of the rationale, this planning was based on an administrative theory of a few of the early top-level attorneys that the problem of drafting a rationale for each rationing action would force rationing officials, both attorneys and non-attorneys, to think through the reasons for each action and thus result in more intelligent rationing. Despite the theory back of the rationale, however, it was more a device for hiding reasons for actions than for stating those reasons. Drafting the rationale was the painful duty of the drafting attorney; no one else was much interested. Sometimes the drafting attorney did not know the reasons behind an action and was forced to make up plausible sounding reasons. T o many a rationing official, drafting rationales was simply a meaningless agency requirement, and the rationales which were drafted usually reflected this attitude. T h e rationing officials were much more interested in the reasons for actions given to the public by way of the press release, and they cleared press releases with great care. Their interest in the press release, however, was not an interest in seeing that the public received the real reasons for actions, but that the reasons given would result in public reaction which was consistent with the aims of the rationing programs.

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A few examples will illustrate the meaninglessness of most rationales. As a rule, fuel oil rations were not issued to people who had coal or wood stoves which they could use. However, during the summer months this rule was relaxed to allow people to cook with their oil stoves rather than with uncomfortably hot coal or wood stoves. After this "summer-cooking" provision was installed for the second year of fuel oil rationing, 3 the chief of the stove rationing branch asked that it be modified. Applicants for oil stoves could not get them if they had usable coal or wood stoves. T h e justification for this denial was that oil was scarce. Thus, the stove rationing branch chief argued, stove rationing personnel were saying "vou cannot get an oil stove if you have a coal stove because oil is scarce," while fuel oil rationing personnel were saying "if you can get an oil stove in any way, you can get a fuel oil ration even though you have a coal stove." This situation, argued the stove rationing branch chief, put tremendous pressure on the weaker and less popular stove rationing program which it could not withstand. Because of these arguments, the fuel oil "summer-cooking" rule was modified to restrict the privilege of obtaining a fuel oil ration for summer cooking regardless of the existence of a usable coal stove to those persons who acquired their oil stoves before June 1 , 1 9 4 4 4 A person with a coal stove who acquired an unrationed, used, oil cook stove after that date could not receive the privilege of the summer cooking ration. This action relieved the pressure on stove rationing personnel for oil cook stoves for summer cooking. T h e rationale accompanying the latter amendment did not explain this action as explained above. T h e rationale stated "the available civilian supplies of kerosene will not permit such rations to be issued to persons having other usable equipment for this purpose, who had not used kerosene oil cooking stoves previously during the summer." Besides not being the real reason for the action, this reason (shortage of oil) was not even a good one. T h e amount of oil involved was infinitesimal, and more oil can be brought into the fuel oil rationed area (the E a s t ) during the summer than can either be stored or consumed. In the very next paragraph, justifying other provisions of the same amendment, the rationale states: While the overall fuel oil supply is still critical, in some sections of the rationed area, dealers' and suppliers' oil storage tanks are filled to capacity. It is essential that this fuel oil be transferred, as promptly as possible, to consumers' tanks in order to accept shipment of additional oil supplies. In this rationale there was not even an effort made to tell a consistent story, let alone the real reasons for modifying the "summer-cooking" rule.

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O n e further example of the meaninglessness of rationales will suffice. In August of ig45 the sugar rationing regulations were amended to require dealers and wholesalers to file a semi-annual inventory report with OPA. 5 T h e rationale explaining the reasons for this amendment is a classic example of many words and three sentences stating one tautology. This provision [the inventory report] is added in order to obtain more complete information with respect to inventories of sugar of certain registering units composed of wholesale or retail establishments. By obtaining semiannual reports of such inventories, it will be easier to ascertain the inventory positions of those registering units. [Sic/] In addition, this information will give a more adequate control for enforcement purposes in checking inventory reports on a more current basis. Although the rationales were, for the most part, meaningless documents, they were nevertheless appreciated by field officials. For a great many of the rationing actions, the rationales were the only explanations for the actions given to the field. Meaningless as they were, the rationales supplied field officials with some sort of reply to the constant question, " W h y did you do that?" For this reason, or perhaps because they knew no better, Washington field liaison officials diligently reproduced the rationales and mailed them to the interested regional officials (regional rationing representatives). T h e institution of the rationale was favored only by a few attorneys, some of whom thought it was an important administrative invention and that a rationale for each amendment should have been required by law. Actually, the press releases were better explanations of rationing actions because they not only gave ostensible reasons for the actions but also explained in general terms how the actions affected members of the public. If a rationale were published in the newspapers, it became a press release. Reasons for rationing actions were given in many ways —in the press, in correspondence, in memoranda, in meetings, in speeches, etc. T h e rationale was only another specific document in which reasons for actions were incorporated. Rationales were not, themselves, the reasons for the actions. Thus, rationales were only another addition to the elaborate and confusing array of rationing documents. Requiring by law the filing of rationales with administrative orders and amendments thereto can solve no real problem. T h e public official is already forced by the nature of public opinion to give reasons for his decisions, and does so. He is not and can never be forced to give the real reasons.

PARTS OF RULE-SYSTEMS SUPPLEMENTS, SCHEDULES, A N D APPENDICES T h e ration orders were not all simple straightforward documents. Most of them had attachments at the end called supplements, schedules, and appendices. It is a little obscure where the notions for these attachments came from. Certainly the notions about the purposes or functions of these attachments were not uniform or well developed. Certainly, also, these attachments did not simplify the task of finding out about a rationing program. Although the schedules and appendices were regarded as a physical part of the ration order, the supplements were regarded as separate documents. T h e y had their own separate revisions and series of amendments. References were to the supplement, not the ration order —thus, Supplement ι to Ration Order 11, etc. There was no consistency in the uses of schedules, supplements, and appendices. A few ration orders did not have them. Some drafting attorneys used schedules where others used supplements; some included the schedules within the supplements; some put material in the text of the orders that others put in attachments; some attorneys, when revising an order, put material in the text that was previously in one of the attachments while other attorneys completed in one of the attachments a definition begun in the text. T h e only approach to a uniform practice was the tendency to include in supplements the validity periods and values of the ration coupons, but even this practice was not consistently followed. Examples of the use of attachments follow. Ration Order 6 (rubber footwear) used an appendix to complete a definition begun in the first part of the order. Section 1404.2(1) defined "rubber footwear" as "all men's protective waterproof or snow and water repellent boots and work shoes, except those which have been worn, of the types listed in Appendix A (Section 1404.69), manufactured under any process which joins the sole and upper in a single unit." Appendix A to the order listed six types. If the order was to be read by someone, it certainly would have been simpler for that person to have those six types listed at the place where he was learning the definition of "rubber footwear" rather than having to turn to the back of the order when he was half through the definition. Apparently the drafting attorneys came to about the same conclusion. W h e n the order was revised to become Ration Order 6A (June 5, 1943), the definitions were placed in Section 3.12, the next to last section, and "rubber footwear" was defined as referring to "the types listed in section 3.13," the last section. However, there was still no reason for excluding the six types from the

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definition itself, and ease in reading was not appreciably promoted by the abolition of the Appendix. Ration Order 5, the original East Coast gasoline card rationing plan, had three supplements, but no appendices or schedules. Supplement N o . 1 ( M a y 12, 1942) contained the gallonage values for the various ration cards for the first validity period. Supplement N o . 2 ( M a y 16, 1942) provided for public inspection of certain board records. This provision was evidently an afterthought, and it is difficult to see how even esthetics could have dictated the use of a supplement to the order rather than an ordinary amendment to the order as the device for informing people about the public inspection provision. Supplement N o . 3 contained gallonage values of the various ration cards for the second validity period. It is difficult to see why another supplement was used for this purpose rather than an amendment to Supplement N o . 1 . T h e gasoline drafting attorneys at that time apparently felt that ration values could be touched upon only in a document called a supplement. These three supplements did not have individual section numbering systems. They merely continued the section numbering system of the ration order. If the word "supplement" had been omitted, a person would have thought he was reading a part of the ration order. He was not, however. T h e three supplements to Ration Order 5 were three separate documents, with their own separate titles, their own separate revisions, and their own separate series of amendments. Thus, right at the very beginning of gasoline rationing, even before the general ration orders and procedural regulations began to proliferate, a person desirous of finding out about the legal story of gasoline rationing found himself confronted with four amendable documents instead of one. There was nothing in the nature of the material included in supplements which made it necessary, legally or otherwise, to exclude that material from the text of a ration order. Ration Order 5C, (nation-wide coupon rationing of gasoline) had two supplements. Supplement No. 1 contained the coupon value designations and the definitions of "Area A , " "Area B , " and "gasoline shortage area" (the different areas sometimes had different coupon values). A revision of the supplement on M a y 1 , 1 9 4 5 , dropped the part on definitions, including these definitions in the text of the ration order with the rest of the definitions. Supplement N o . 2 designated "critical shortage areas" and invoked the pleasure driving ban in those areas. Section 1 3 9 4 . 8 1 6 1 ( f ) of the ration order informed the reader that "where the Office of Price Administration, Washington, D.C., finds that a critical

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gasoline shortage exists in any area it may order that in such area during an indefinite or definite period fixed by such order" that " A " and motor boat rations cannot be used for pleasure driving. Supplement N o . 2 was the "order" defining the critical shortage area and invoking the pleasure driving ban. It began, " I n accordance with the provisions of section 1 3 9 4 . 8 1 6 1 ( f ) , authorizing the Office of Price Administration to designate areas. . . ." Thus part of the pleasure driving ban provision was in the ration order and part in Supplement N o . 2 to the ration order. Although Supplement No. 1 designated the coupon values, the validity periods of the coupons were described in the text. One way of changing coupon values was to change the length of the period during which they could be used. Thus one method of changing coupon values was by amendment of the ration order, and the other was by amendment of Supplement N o . 1 . T h e last four sections of Ration Order 3 (sugar) were "schedules" —Schedule A, Schedule B , etc. Schedule A contained tables, Schedule Β a list of percentages, and Schedule D a list of counties with population increases. Schedule C contained the validity periods of stamps and the weight value thereof (in pounds of sugar). T h a t is, Schedule C of Ration Order 3 contained stamp values and validity periods, while in Ration Order 5 C (gasoline) stamp values were contained in a supplement ( N o . 1 ) while validity periods were contained in the text of the ration order. T h e "schedules" were not separate documents. Amendment was by regular amendment of the ration order. T h e "schedules" were ordinary sections of the ration order with the rather mystifying and obscure word "schedule" printed above them. Where the notion of a "schedule" came from or exactly what meaning it had for drafting attorneys is uncertain. Many tables and lists and even maps were included in ration orders without use of the concept of a "schedule," and many such tables and lists were also included outside of "schedules" in ration orders which had "schedules" attached to them. T h e "schedule" was probably as much a mystery to the drafting attorney as it was to the readers of a ration order. Drafting attorneys probably included a few "schedules" because other drafting attorneys did. Revised Ration Order 3 (sugar) had the same four "schedules." It also had Appendix A. Amendment 32 to Revised Ration Order 3 (July 17, 1944) made provision (in a new Section 1407.77) for additional sugar rations for isolated persons in occupations "designated in Appendix A . " Appendix A was attached to the ration order, without section numbering of any kind, by the same amendment. Appendix A listed one occupa-

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tion, and no more were ever added. Appendix A was two words abstracted from the text of the ration order and hidden at the very end. Appendix A was as follows: Appendix A Persons working in the following occupations may apply for additional sugar under section 1407.77: ( 1 ) Sheep herding. When Ration Order 3 was revised a second time (November 16, 1944), the "schedules" were dropped, and the tables, lists, etc., were included in the next to last "article" of the ration order. "Articles" was the name given to the chapters into which the revised ration order was divided. The second revised ration order still had Appendix A, however. It also acquired a new Appendix B, which was nothing but a poor reproduction of the form to be used by primary distributors when making their monthly compliance reports to OPA. Few other ration orders ever used an appendix, or any other attachment, for this purpose. Ration Order 13 (processed foods) contained an "article" on "definitions." These definitions contained a long list of foods included in "processed foods." Appendix A contained an equally long list of foods which were not included in "processed foods"—i.e., were not rationed. Ration Order 13 also contained an article on "Records, Reports and Inspections." It also contained Appendix Β designating "the reporting periods for which processors and wholesalers must prepare and file reports." Thus, like appendices to other ration orders, the appendices to Ration Order 13 divided an instruction in two, making readers hunt up a different place to get the whole story. The coupon validity periods for the first two periods were designated in the text of Ration Order 13 (Section 2-4[b]), and the reader was then informed that future stamps "may be used only during periods which will be fixed in a supplement to this order." The supplement (No. 1 ) went through a number of revisions. The second revision contained, among other things, wholesale factors "referred to in section 4.6(b)" of the ration order for the various reporting periods listed in Appendix A (these were formerly in Appendix B); stamp validity periods "referred to in section 2.4(b)"; and a table of amendments to the supplement. When Ration Order 13 was revised (December 30, 1943), the two appendices and the supplement were continued as before except that the appendices no longer had section numbers borrowed from the end of the ration order; they were simply tacked on at the end of the order without section designations. Thus, the appendices had always to be cited independently from the order, becoming practically separate documents.

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Ration Order 1 6 (meats, fats, fish and cheese) was divided into "articles" (chapters). T h e last article was titled "Appendix." It contained Section 30.1 describing cheeses not covered by the order; Section 30.2 listing items excluded from the definition of meat—a listing short enough to have been included esthetically in the section on definitions; Section 30.5 designating the reporting periods for wholesalers who transfer canned fish—short enough to have been included esthetically and much more practically in Section 5 . 1 0 which described the rest of this reporting requirement. Ration Order 1 6 also had a Supplement N o . 1 , numbered by the archaic Federal Register numbering system rather than by that of the ration order, which contained an odd assortment of matters including charts, lists, percentages, coupon values and validity periods, conversion factors, table of counties with increased population, even a couple of forms, and finally a table of seventy amendments to the supplement. Ration Order 1 2 (coffee) set the last two sections off from the rest of the order by means of a center heading, "Schedules." These last two sections designated the ration periods and stamp values and specified percentages to be used in computing industrial user allotments. These last two sections were a definite part of the ration order, and what the center heading, "Schedules," contributed to either the understanding or the legality of the ration order is a mystery. Ration Order 1 1 ( fuel oil ) had no appendices or schedules. T h e many tables and maps of that order (more than any other order) were included in the text. It had a supplement which designated the coupon values and nothing else. W h e n the order was revised (February 28, 1 9 4 4 ) , material which had been the basis for determining the first year's rations was put in Appendix A. This material did not need to be read by anyone and was well out of the way in an appendix, although it might as well have been put in someone's file case. Ration Order 1 7 (shoes) used an appendix for the same purpose as the fuel oil ration order. Appendix A of Ration Order 1 7 contained "Provisions of Ration Order N o . 1 7 (now primarily of historical interest) relating to the transfer of certain shoes without ration currency upon specified conditions." It also had a supplement which contained the provisions relating to the manufacturers' monthly compliance reports, although one of the sections of the order was on " H o w This Order Affects the Trade." In nearly every other order, the monthly compliance report provisions were in the text of the order. T h e automobile ration orders (2, 2A, 2 B ) had no attachments from beginning to end, and neither did Ration Orders 4 and 4A (typewriters),

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or Ration Order 7 (bicycles). Ration Order 9 (stoves) had no attachments, but Ration Order 9A had a supplement (percentages for increasing dealers' allowable inventories in different areas ). N o n e of the general ration orders had schedules or appendices, but General Ration Order 1 7 (export of rationed foods) had a supplement, and General Ration Orders 5 (institutional users) and 18 (veterans entering the food business) each had three supplements. There seemed to be no good reasons for the use of the attachments to the ration orders. T h e attachments were obviously not devices to satisfy legal requirements. T h e y made the task of finding out about the law more difficult. A ration order was not a document that people would pore through eagerly so that removing long tedious listings from the text might have been justified. People referred to ration orders to answer some specific question or because they wanted to find out everything about a ration program. Hiding some of the material in an attachment did not help these people. They did not expect to be thrilled by reading a ration order. T h e impulse to add attachments was partly a case of misapplied esthetics. It seemed more "fitting" to put some things in the back of the order. T h e impulse to add attachments was also a bit of unconscious mimicry. Other government regulations have appendices and supplements and perhaps "schedules," and so why not ration orders? T h e attachments contributed further to the result that the rationing legal documents could communicate rationing plans only to legal researchers. SUSPENSION

ORDERS

Members of the distributive industries regulated by rationing rules could be denied the privilege of dealing in rationed commodities if they violated rationing regulations. Rationed commodities could be allocated away from them. Orders denying the privilege of dealing in rationed commodities were called "suspension orders." Suspension orders might entail total suspension from doing business in the rationed commodity, or they might involve only partial suspension—e.g., the violating firm could continue to serve its old customers but could acquire no new ones. Suspension orders could last for a few days or for the duration of the rationing program. Suspension orders were regarded as amendments to, or extensions of, rationing regulations. T h e legal authority for issuing suspension orders was the power to allocate scarce commodities, the same as for rationing in general. Suspension orders were attacked both in and out of court as being beyond the authority of O P A (or any other agency operating under the Second W a r Powers A c t ) . O P A ' s contention that suspension

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orders wore not penalties but a legitimate exercise of the power to allocate was upheld by the Supreme Court.® Actually, suspension orders were penalties in both spirit and purpose, even if not in legal theory. T h e suspension order was the principal formal sanction for rationing regulations. Under the statute (the Second W a r Powers Act), civil and criminal sanctions were available to O P A . Criminal sanctions were rarely used; civil actions (injunctions) were used to a considerable extent, especially to enforce compliance with reporting and record-keeping requirements. Suspension orders, however, were the backbone of rationing enforcement. The first rationing regulations issued by O P A provided that violators could be suspended from doing business in the rationed commodity. N o formal procedure was provided for issuing suspension orders until June 5, 1942, although several were issued before that time, the first one on March 13, 1942. On June 5, 1942, Temporary Procedural Regulation No. 4 was issued to govern the procedure for issuing suspension orders until a completely satisfactory procedure could be worked out. Finally, on February 6, 1943, a procedure based on the recommendations of the Attorney General's Committee on Administrative Procedure was issued as Procedural Regulation No. 4. On April 1, 1944, Revised Procedural Regulation No. 4 was issued. A t the beginning, there was no clear division of functions between prosecution and adjudication in the issuance of suspension orders. Early in 1943, however, the function of adjudication was sharply set off and allocated to the office of administrative hearings. This office was composed of a hearing administrator in Washington, hearing commissioners in the OPA regions, and such presiding officers as the press of work made necessary. Regional hearing commissioners presided over suspension order proceedings and issued suspension orders. Appeals could be taken to the hearing administrator in Washington whose decision was final. The office of administrative hearings was completely independent of other parts of OPA, and its decisions were completely its own. Since the issuance of suspension orders was actually an enforcement activity, rather than administrative rule-making, a discussion of such orders is not relevant here. Suspension orders have been mentioned at all only because they were justified as an extension of rationing rulemaking power. However, the reader interested in formal administrative adjudication will be interested to know that rationing suspension order proceedings followed the usual course of development and became more like the proceedings of a court of law as time went on. This development resulted largely from the decisions and precedents of the hearing com-

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missioners and the hearing administrator. These precedents and practices would now and then be formalized in amendments to or revisions of Procedural Regulation N o . 4 which governed suspension order procedure. An example of the "legalization" of the procedure is the provision on rules of evidence. T h e original Procedural Regulation No. 4 provided that the rules of evidence used in the courts would not apply. T h e final revised version provided that the rules of evidence would be those used for non-jury cases in U . S . Courts. 7

Chapter 13. THE LEGAL DOCUMENT AS AN INSTRUCTION THE FOREGOING discussion has clearly demonstrated that the development of the rationing legal documents was not the result of any preexisting body of principles or ideas with regard to the subject. Although not guided by conscious purpose, the development was toward complexity, and the result was that the rationing law had to be "found" rather than read. The legal documents, as they came to be, could not have been part of a system of communication with most laymen. Various kinds of materials came to be included in the legal documents. The illustrations in this chapter will very clearly show a confusion between the idea of the legal document as a communication with the ultimate reader and the idea of the legal document as a communication with an intermediate interpreter. AN INSTRUCTION TO THE

PUBLIC

Under the terms of the Federal Register Act (Section 7 ) , regulations of "general applicability and legal effect" are not "valid as against any person who has not had actual knowledge thereof until the duplicate originals or certified copies of the document shall have been filed with the Division" of the Federal Register. (49 Stat. 502.) Thus, legal documents which described duties which O P A wished to be enforceable at law had to be filed with the division of the Federal Register and were so filed. Since practically no one (other than attorneys) reads the Federal Register or has even heard of it, this method of communicating duties is obviously communication with intermediaries or interpreters rather than with ultimate readers (the persons on whom the duties were imposed— in rationing, chiefly business firms). It was also a means of communicating instructions to judges. If only that material had been published in the Federal Register which was legally required to be so published (i.e., enforceable duties), the rationing regulations would have been less than half as long as they were,

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However, a tremendous amount of other material which either legally or practically could not become the subject of court interpretation (i.e., be enforced by law) was also included in the legal documents and thereby published in the Federal Register. Although the rationing legal documents were read by very few people other than attorneys, the legal documents were treated as though they were a principal means of communication to all people affected by rationing, in and out of OPA. A great part of the material included in rationing legal documents had no "legal effect" in theory and an even greater part had no "legal effect" in fact. Not only were the public's rights and duties described, but a tremendous number of other things were also described. Applicants were told where to pick up application forms, how to fill them out, where to mail them. They were told the form numbers of the forms they were to use, and the forms were often described as to kind of paper, number of parts, type of serialization, etc. Applicants were given instructions in the regulations which were printed in even more detail on the forms. They were told the questions they had to answer, which questions and a few more were printed on the forms. They were told what kind of pencils to use (indelibles or pen and ink) in filling out the forms (also specified on the forms). Any changes in these details, as by the revision of a form, required an amendment to the regulations (e.g., " O P A Form R - 1 1 0 1 " had to be changed to " O P A Form R - 1 1 0 1 [Rev.]" wherever the phrase was mentioned in the regulations). The legal documents spelled out the conditions of eligibility for rations, and often informed the reader that other conditions would be laid down by "instructions from the Washington Office." This kind of "notice" to the public, very popular in the food rationing legal documents, was actually "notice" to the public that it was going to receive no notice of many things of great importance to it. The legal documents informed the reader of a great amount of dull board and field procedure such as filing, forwarding, recording, reporting, etc. They also informed the reader about many vague and indefinite things which the boards "should take into consideration" when deciding certain kinds of questions, such as how many quarts of fruit an applicant really needed to home can. In short, the legal document attempted to communicate not only with judges and advisors to business firms but also with consumers, small business firms, boards, field offices, printers, private citizens who certified facts for applicants, etc. More will be said later of these instructions to various people. Much of the material included in the legal documents got there because the drafting attorneys thought the public had a "right" to be

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informed about it. Whether they thought this "right" was both a legal and a moral one is not completely clear. At any rate they thought it was a moral one. All the rationing attorneys thought the "right" was satisfied by the "constructive notice" of the Federal Register. Thus, the inclusion of much of the material in the legal documents was justified as "necessary" to give "notice" to the public. Although the drafting attorneys included a tremendous amount of dull and unimportant detail in the legal documents in order to give "notice" to the public, many matters of tremendous interest to the public were excluded from the regulations (and, hence, the Federal Register) with the consent and approval of the attorneys. One fertile source of such "hidden" material, including duties of members of the public, was the official interpretations. Most interpretations were to be found only in memoranda in the attorneys' files. Some of the more important of them came to be reproduced in mimeograph form for use of the field attorneys. These important interpretations were also printed in the OPA Service, the attorneys' looseleaf service. A very small number of them were printed in the local board looseleaf as "annotations" (discussed below). None of them was printed in the Federal Register. Examples of information or rules of great interest to the public hidden in interpretations are almost unlimited. Only three selected at random will be cited, all three from shoe rationing. Retailers must collect a stamp or a certificate from a consumer before shoes are delivered to him, but shoes may be specially ordered or placed on will call or layaway without first collecting ration currency only if ration currency will be collected for them before the end of the period in which the current stamp is valid. [Issued February 11,1943, revised July 6,1943.I Any person who has lost his War Ration Book I and who needs a pair of shoes before he can get a new book under general OPA Regulations, may get a certificate for the shoes he needs if he meets the need requirements or section 1.5. [Issued February 20, 1943.J The Board may not grant a certificate under section 1 . ; for athletic shoes for an amateur athlete, such as students or persons participating on an organized company team, since the shoes would De used for sportswear and not for occupational use. [Issued March 2, 1943.] It can readily be seen that information of the kind just quoted would be of great interest to the public. The first illustration described a duty of all shoe dealers to collect ration evidence for layaway sales. The second interpretation described a right of a fairly large class of people. The third "informed" a class about a denial of a right. Illustrations of this kind could be multiplied a hundredfold for every rationing program.

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Interpretations rarely got to the local boards, and so those which created or limited rights of applicants or conditions of eligibility had no effect on the public. However, when a district office rationing representative informed his boards in a bulletin about the existence of one of these interpretations, which sometimes happened, then all the people in the jurisdiction of those boards were vitally affected by rules about which the regulations did not inform them. Another body of rules vitally affecting members of the public but not included in the regulations were the adjustment policies of the food rationing division. (Some other programs also provided for "adjustments on petition to Washington.") The process by which food adjustment policies ("opinions") were created has already been described. The nature of the information in these "opinions" about an individual's "rights" and the importance of that information, as well as the very close resemblance these "opinions" bore to material normally included in the regulations, is illustrated below. At one time, an attempt was made to compile the food adjustment policies. The first page of the table of contents of the draft compilation will illustrate the nature of the information withheld from the public in the food adjustment policies. INDUSTRIAL

PART I USERS AND INDUSTRIAL

CONSUMERS

INTRODUCTION TO P A R T I SECTION 1 0 1 . G R A N T S OR INCREASES B A S E D ON N A T I O N A L I N T E R E S T OR P U B L I C W E L F A R E

101.01 Granting Bases or Allotments to New Industrial Users (a) Scientific Research and Development (b) Supervised Educational Activities 102.02 Increasing Bases or Allotments Because of Essential Character of Product or Service—General Scope of Problem (a) In cases where the end product is not rationed under another Order ( 1 ) Production and Compounding of Pharmaceuticals ( 2 ) Production of biologicals for animals ( 3 ) Preservation of fresh fruits and vegetables (4) Rendering of Special in-plant feeding services (b) In cases where the end product is rationed under another Order

4 6

6 8 9 10 11 12 13 14 16 24

THE LEGAL DOCUMENT AS AN INSTRUCTION

( 1 ) Production of meat-based baby-foods (2) Production of pork and beans

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26 27

There were six more pages of topics in the table of contents. The close resemblance of food adjustment policies to regular ration order material can be further illustrated by the following memorandum from the files. MEMORANDUM July 28, 1943 TO: FROM: SUBJECT: Increased Allotments for Baby Food Manufacturers As I mentioned in a memo to you on July 1, there has been considerable agitation to increase the meat allotments of baby food manufacturers for the making of meat-base baby foods. The meat branch now proposes the following policy: Effective August 1, 1943, it will be the policy of the Meat Branch to allow baby food manufacturers 100% of their 1942 usage of meats, and the points to be issued for this purpose will be the number of pounds of their usage in 1942 of each item multiplied by the current point value of that item. This is not to be construed as obligating any other food rationing branch. In my opinion this is an action which should be handled by an amendment rather than merely as an adjustment for petitions filed. If the principle of increased production is the basic criterion, it is desirable throughout the industry and not only among those manufacturers who petition for increased allotments.1 Further information of great interest to the public was to be found in field instructions—not considered legal documents. These field instructions were not published in the Federal Register; they received circulation only within OPA. From the following examples the reader can judge for himself the importance to the public of some of this instructional material about which the public was never given "notice" via the Federal Register. The fuel oil rationing program provided for the issuance of "hardship" rations to those people who simply could not get along with their fuel oil rations. Hardship rations were necessary to keep people from freezing. The regulations merely informed the applicant that he could apply for a hardship ration if his present ration was "insufficient to meet his minimum . . . requirements." 2 Boards were instructed in the regulations to issue hardship rations only if they found the applicant's ration to be "insufficient to meet [his] minimum . . . requirements." From the provisions just quoted it is easy to see that an applicant for a hardship ration could find out very little about his "rights" by reading the regulations. How to decide what constituted insufficient fuel oil to

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meet minimum requirements and how much additional ration was to be issued were described in a non-legal field instruction. This instruction informed boards that a person who still had left from his ration half or more of what he should have left (according to a table showing the percentage of the heating year which had passed) was not to be issued a hardship ration. A person who had left less than half of what he should have left was to be issued a hardship ration which would restore his total ration to what it should be (under the forementioned table). Thus, whether a person was actually able to receive a hardship ration and how much he would receive were discoverable only by reading the nonlegal field instruction—not by reading the regulations. Another example of the exclusion from the regulations of material very important to the public was the new fuel oil space heater formula developed early in 1945. This example is described above, pages 35-36. T h e regulations simply informed the consumer that he could get his "minimum needs," not to exceed a maximum shown in a table. T h e rest of the story was told in non-legal field instructions. Under the annotation system of instructing boards, the legal document and the non-legal instruction became so scrambled up that both members of the public and O P A officials often failed to distinguish between them. T h e annotation system was a rationing field instructional technique adopted late in 1943 whereby the legal document was made the basic instructional vehicle. If a legal sentence was felt to need further elaboration, a non-legal sentence of explanation—an annotation—was interlarded into the legal text. T h e whole thing was printed in the local board looseleaf service. T h e annotations were non-legal field instructions. They are not included in any version of the legal document except the board looseleaf, and were not, therefore, printed in the Federal Register. Many of these annotations described material of more interest to the public than the legal sentences which they elaborated. Especially was this true in the field of eligibility. Eligibility rules in the regulations were usually very general. Following these general eligibility rules there were many annotations which prescribed whether or not specific groups were included within the meaning of the general rules. Sometimes official interpretations were later reprinted in the board looseleaf as annotations. More often annotations were simply a non-legal statement of a part of the plan. Although not part of the legal document, annotations (or the plans described by annotations) so vitally affected the public that many people, both in and out of O P A , often failed to distinguish between annotations (field instructions) and the regulations. T h e following examples

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from the experiences of the gasoline eligibility committee will illustrate this point. In February of 1944, the committee discussed the eligibility of certain kinds of delivery and pick-up service for preferred mileage. Some of these services appear to deserve consideration under preferred mileage but are excluded under the wording of the present annotation. . . . The Committee recommended that the Legal Section reword the annotation .04 and submit the newly written annotation to the Eligibility Committee in the near future.* At another meeting, the rule stated in "annotation [.29] under Section 7706, paragraph ( 2 ) " of the regulations was criticized by an OPA regional office. After due consideration, "the Eligibility Committee believes that the Regulations [my italics] should stand as they are." * At the meeting of March 2, 1944, A request was received from the San Francisco Region that an annotation be placed in the Regulations to the effect that merchant seamen are not eligible for preferred mileage for daily travel to and from a union hiring hall. The suggested annotation was approved by the Committee and has been submitted for insertion in the Looseleaf Service.8 When interested members of the public found out that their desires were being thwarted by an annotation, a mere field instruction, rather than by the "law of the land," they simply shifted their interest to the annotations and their efforts to getting the annotations changed. In its meeting on February 18, 1944, the eligibility committee discussed a request of the Independent Tire Dealers Association to the effect that a specific annotation be placed in the Regulations which would indicate to local Boards that certain tire servicemen may be eligible for preferred gasoline mileage. . . . The Committee did not feel that a specific annotation in the Regulations was needed at this time. . . . The issuance of such mileage should be based upon the facts presented to the local Board.® In its meeting on March 2,1944, the committee considered a request from the Animal and Poultry Foundation of America to the effect that annotations in the Regulations pertaining to feed salesmen should be revised so that representatives of feed companies who have historically marketed their produce directly to the farmer wnile supplying free instructions for the care of livestock and the use of such feed produce may qualify for preferred mileage when such representatives are proven specialists. . . . The Eligibility Committee felt that the wording of the present annotation allowing preferred mileage to a few feed specialists where no sales or promotional activities were carried on was sufficiently clear and voted therefore that the annotation remain as it is at present.7 Many more illustrations of the tendency to identify annotations and regulations could be given. It is difficult to think of any rationing sub-

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ject matter of more vital importance to the public than t h e rules of eligibility. A n d yet, m a n y , perhaps most, of those rules, especially in concretized form, were to b e found in annotations and interpretations—not in the regulations and, hence, not in the Federal Register. Frequently, as already pointed out, the regulations explicitly recognized a n d stated that matters of vital importance to the public would not b e described in legal d o c u m e n t s — t h a t is, the regulations informed the public that it w o u l d receive no legal notice or instructions about many very important conditions and rules. A l t h o u g h m a n y examples of this strangely conscious exclusion of important matter from the regulations óould b e given, t w o will suffice. T o minimize t h e illegal acquisition of ration books by persons w h o claimed that they h a d never applied and received books, a tighter procedure for issuing ration books to late applicants was installed in February of 1943· T h e a m e n d m e n t told applicants h o w to apply and added: " T h e Board may ndt grant the application until it has taken such action as the Office of Price Administration m a y direct." 8 T h u s , the applicant was " n o t i f i e d " by the legal docum e n t that an unlimited number and variety of u n k n o w n conditions m i g h t b e imposed. T h e s e u n k n o w n conditions were necessary antecedents t o the receipt of a ration book—certainly a matter of considerable importance to members of the public. In 1945, the f o o d ration orders were amended to provide for the issuance of additional f o o d rations to workers in heavy industries designated by W a s h i n g t o n . T h u s , the occupational ration program could b e applied to an industry at a time as information about nutritional needs became available. T h e a m e n d m e n t installing the program (in sugar rationing, for example) not only limited occupational rations to "workers in an industry or occupation designated by the D e p u t y Administrator for Rationing," b u t also provided: T h e Regional Office or an authorized board or district office may grant evidences under this section only when authorized by instructions from the Deputy Administrator for Rationing, and only to persons and under the conditions and limitations set forth in those instructions.» In this case, the regulations notified no one of any rights or duties, simply informing the world at large that if and w h e n occupational rations were provided, n o legal d o c u m e n t would inform any person a b o u t it in any way. W h o w o u l d b e eligible, what conditions had t o be m e t and h o w m u c h a person could g e t — a l l these questions would be answered in nonlegal documents, in field instructions (and perhaps newspapers). Occupational rations were extended to a few heavy industries. T h e industries selected, the actual jobs in each industry eligible for such rations, the

THE LEGAL DOCUMENT AS AN INSTRUCTION

3Ö7

amounts, and every thing else were communicated to the field by a sixpage teletype. Another kind of material of great importance to the public which never appeared in the regulations was enforcement policy. T h e rule-making effect of enforcement policy is often overlooked. In legal theory, of course, a decision to take no enforcement action against a certain class of violators does not change the legal responsibility of that class to comply with the rules. In actual effect, however, an enforcement policy suspends the operation of the rules on a certain class. In this sense, rationing enforcement policy was law-making in a field where the subject matter was just as important to the individual as fines or suspension from business. Generally speaking, enforcement policy creation was the sole responsibility of the enforcement department. Some rationing officials, however, recognizing the extreme importance of enforcement policy and its effect on their responsibility for a successful program, insisted on participating in enforcement policy creation. Thus, the fuel rationing officials, in the spring of 1943, persuaded the enforcement officials to agree not to bring any enforcement actions for violations of the fuel oil rationing regulations which occurred prior to February, 1943. Agreement on the type of violation for which suspension orders would be sought was also reached. T h e resulting fuel oil rationing enforcement policy was presented to the fuel oil industry advisory committee the following July and more or less grudgingly accepted by it. T h e enforcement policy was written up in one issue of the fuel oil industry letter and mailed to several thousand members of the industry. For the final inventory report required from shoe dealers ( 1 9 4 5 ) , a Revised Compliance Program Handbook was prepared jointly by the enforcement and the rationing officials. This handbook instructed field officials, both enforcement and rationing, what kinds of discrepancies should be made the subject of enforcement investigation preparatory to enforcement action (suspension or court proceedings). TTiis handbook provided for a 5 per cent tolerance of inventory shortage. T h a t is, reports showing a shortage of 5 per cent or less were to be filed and, in effect, overlooked. At the time this handbook was prepared a case involving a shortage of less than 5 per cent was being tried. Therefore, the issuance of the handbook was delayed until after the disposition of this case because it was felt that the 5 per cent tolerance of the handbook might influence the outcome. At the same time, the shoe rationing staff began to talk about putting the 5 per cent tolerance in the regulations. 10 ( T h e 5 per cent figure had been selected entirely on the basis of work load.)

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Another enforcement policy problem involved in this shoe inventory report was what to do about a dealer's shortage after enforcement action had been taken. Since to have an inventory shortage was to be in violation of the ration order, a dealer with a shortage would continue to be in violation even after enforcement action had been taken against him. This problem was solved in the handbook by instruction to the field officials that a dealer's continuing inventory responsibility, as far as enforcement action was concerned, would be lowered by the amount of the shortage. As Nahl says, There is really nothing in Ration Order 1 7 which permits this: consequently we should legalize it in some matter. Up to this point we had hoped that shoe rationing would be terminated soon enough so that problems such as tolerance, changed inventory responsibility, etc., would not have to be incorporated formally in the Ration Order. Now that it appears that shoe rationing will be continued for some time, it is apparent that these problems must be faced and dealt with in the Order. 11 In an industry advisory meeting the following month, the industry representatives favored putting the tolerance in the instructions rather than in the regulations, "providing the tolerance so attained would be more liberal."12 M a n y other examples of the extremely important material which appeared only in enforcement policy statements, instructions or understandings, could be found. However, the examples cited above are sufficient to illustrate the important law-making effect of enforcement policy creation. Since the important matters described could legally be excluded from the regulations, it would appear that the "right to notice" which was the basis for including much of the material in the regulations must have been a "moral right." W h e n one recalls that the legal documents were not, and could not be, the means of communicating with most people, the rationing attorneys' insistence upon including a tremendous amount of information in the regulations in order to inform the public seems almost inexplicable. T h e truth is that the inclusion of material in the legal documents was not guided by any theory or principles with regard to the nature and function of regulations. It resulted largely from accident. Despite the exclusion of the important material described in the foregoing pages, the tendency was for rationing to be completely covered into ' l a w . " AN INSTRUCTION TO THE

FIELD

Rationing legal documents not only contained instructions to the public. They also contained a tremendous amount of instructional material

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369

directed to OPA field offices. These field instructions in regulations not only described powers of field officials which were of interest to the public, such as powers to issue and revoke rations, but they also described or imposed duties of a routine or administrative nature in which the public could have no interest and about which it certainly had no legal right to be informed. Under the tire rationing program, boards were given monthly quotas of tires. They were not to issue certificates during the month for more tires than their quotas allowed. By this means, the number of certificates issued was limited to the number of tires produced, and those tires were properly distributed throughout the country. A quota reserve was maintained in the district offices from which boards could draw when they exhausted their quotas, providing the district office thought that additional quota was justified. In like manner, district offices could draw upon regional quota reserves, and the regional offices could draw upon the national office quota reserve. Much, but not all, of this quota system was described in Chapter III of the Revised Tire Rationing Regulations, filling two ordinary size pages. When Revised Tire Rationing Regulations became Ration Order lA in November, 1942, the description of the quota system was removed from the regulations, leaving only two sentences referring to it. is The field was then instructed about the quota system in non-legal field instructions. The food rationing regulations specified that industrial users of food and food retailers and wholesalers must register at their local boards (or designated registration sites in the board area) and that the completed registration form must be filed at the registrant's board. When it was later decided that OPA district offices rather than boards should deal with industrial users, the various food rationing regulations were amended to "allow" the industrial users' files to be moved from local boards to district offices. Any district office, with the consent of the regional office, may require that any Board located in its district transfer the registration of industrial users registered with it to another Board or to the district office. The transfer shall be made by forwarding the registration file and all other records of the industrial users to the designated Board or to the district office." In November of 1945, the sugar rationing regulations were amended to allow district directors to order boards to transfer dealers' and wholesalers' files to the district offices.15 The transfer of these files was not a matter which had "general applicability and legal effect" or which had even a remote interest to the public. It was purely a matter of field administration. (A plan is intended to have "legal effect" if it involves the behavior of

γ]0

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judges. It does have "legal effect" if it is communicated so as to elicit the desired judicial behavior.) T h e rationing regulations not only gave boards (and other field offices) instructions with regard to filing, forwarding, or filling out forms; they also gave boards instructions or commands about the timing of their work. For example, the fuel oil rationing regulations told the boards that when a fuel oil dealer or supplier registered, " t h e Board shall immediately forward a copy of such application to the Control and Audit Unit, Fuel Oil Rationing Branch" of O P A . 1 6 It is difficult to see what legal effect failure to mail "immediately" would have had. T h e fuel oil rationing regulations also commanded the boards, late in 1943, to issue renewal rations for cooking and lighting only within a period of fifteen days before the expiration of the applicant's current ration. 17 Such an instruction was actually a matter of administrative supervision at the boards—hardly the type of subject one expects to find in the "law of the land." M u c h of the instruction to the field in legal documents was purely admonitory, inspirational, advisor}'. Such material had absolutely no legal effect in practice, and it is extremely difficult to see how it could have had any legal effect in legal theory. T h e revised tire rationing regulations gave local boards a good lecture about discharging their function of deciding on individual applications for tires. The determination as to whether or not all such facts and conditions exist shall be made upon the basis of the application and all other information which comes to the knowledge of the Board. In acting upon applications, the Board shall observe all regulations herein contained and all additional regulations from time to time hereafter issued by the Office of Price Administration. The Board shall at all times sene the objectives sought to be accomplished by the tire rationing program and allocate new tires and tubes to the most vital civilian uses and to uses essential to the war effort. . . . . . . The Board must keep in mind and must impress upon applicants that the supply of rubber for retreading or recapping tires is extremely limited and that it is not sufficient for the applicant to show only that he comes within one of the eligibility classifications in order for him to receive a certificate. . . . 1 S T h e original sugar-for-home-canning amendment to the sugar rationing regulations allowed additional sugar rations for home canning at the rate of one pound per four quarts of fruit for the amount of fruit "the Board deems to be reasonable." T h e amendment advised the board about the kinds of things it should take into consideration when deciding what is "reasonable." T h e board should give "due consideration to the period in which the fruit will be canned, the past practice of the indi-

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vidual or family unit with respect to home canning, the prevailing . . . practice in the locality . . . the number of quarts of fruit previously canned at home remaining in the possession of the individual . . . the availability in the locality of fruit suitable for home canning, and such other circumstances . . . or criteria as the board deems pertinent to the particular request." 1 9 A similar provision was in the home canning programs for each of the subsequent years of rationing. Such a provision was purely a friendly guide to the interpretation of the word "reasonable." It defined no rights, duties, powers, or limitations. Occasionally, such advisory instructions to the boards, while they did not limit the boards' powers and thus create any rights for applicants, did have the effect of limiting the interpretive power of the Washington attorneys. T h u s , when the revised tire rationing regulations were amended to allow tires for equipment purchased without tires, the amendment provided that the applicant must present "a satisfactory explanation in affidavit form from the vendor or rebuilder stating the reasons why the vehicle was not fully equipped with tires and tubes when transferred by him to the applicant." 20 T o help the boards determine what was " a satisfactory explanation," the amendment stated: " A m o n g the reasons which may satisfactorily explain the lack of original equipment are the following. . . ." T h e amendment then listed three or four reasons. Such an instruction could have no "legal effect" since the board was neither limited to the three or four examples nor bound to accept them as satisfactory explanations. However, if a board did accept one of the examples, it could be sure that it would be backed up by Washington. Washington had, in effect, interpreted the regulations in advance of an actual case. Occasionally the field personnel would be instructed via the regulations that they were to obey later non-legal instructions from Washington with regard to some subject of administrative detail. Thus, Section 1 3 1 5 . 1001 of Ration Order l A (tires) instructed that "the Boards, District Directors, Regional Administrators and other administrative personnel of the Office of Price Administration shall maintain such records and file such reports in such form as may be required by the Office of Price Administration, Washington, D . C . " T h e original nation-wide gasoline rationing regulations provided that "each Board shall maintain a file of all applications for gasoline rations passed upon by it or received by it." Applications received from persons who were technically under the jurisdiction of some other board were to be forwarded "through the District Director to the Board having jurisdiction." 21 W h e n later it became desirable to alter or develop the file transfer procedure, the regulations

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were changed to instruct the boards that they should obey non-legal instructions about the transfer of files. Each Board shall maintain a file of all applications for gasoline passed upon by it or received by it . . . . except that a Board shall transfer any or all such applications and related papers to another Board, or to any office of the Office of Price Administration in accordance with any instructions issued by the Office of Price Administration, Washington, D.C., or by the Regional Administrator or the District Director having jurisdiction over the Board. 22 Apparently, in cases like the two just cited, the persons who drafted instructions in legal documents were permitting other persons to draft instructions in non-legal documents and authorizing boards to obey the same. Or else the O P A was calling upon the magical potency of the legal document to authorize itself to instruct its field organization with nonlegal documents of instruction. Or else, by rubbing the non-legal document against the legal document, O P A was attempting to transfer to the former some of the magical potency of the legal document. Seldom were the instructions to the field contained in legal documents complete. In nearly all cases they needed to be supplemented by further instructions, and frequently further instructions were forthcoming in the form of non-legal documents of various kinds. T h u s the tire quota instructions in the regulations, mentioned above, told field offices where and how to apply for further quota if this were needed before the end of the month, but contained no information about keeping records of quota usage or reporting quota usage. Procedure for recording and reporting quota usage was described in another document—a non-legal field instruction. Amendment 54 to Ration Order 1 1 (fuel oil) provided that certain large consumers might receive their rations on ration record cards rather than coupons. Since fuel oil ration coupons were divided into five groups, one for each validity period, ration record cards could not be issued for a whole year but only for one validity period at a time, and the gallon value of the card had to be computed at the current coupon value. (Coupon values were changed from time to time, reflecting the oil supply situation.) Therefore, computing the value of a ration record card was very difficult and careful instructions were needed to make sure that boards correctly issued rations when using these record cards instead of coupons. T h e amendment contained no instructions about computing the amount for which a record card should be issued or for filling out the card. It did, however, notify the board that " t h e fuel oil ration record card shall be prepared in duplicate by the Board. T h e duplicate shall be retained for the files of the Board." 23 Thus, whether or not the

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card was properly filled out or the amount properly computed, a copy was to be filed at the board. O n e immediately wonders why, if it were necessary to include administrative detail in the legal document, the least important detail was the one selected for inclusion. Since the field instructions in the legal documents were rarely if ever complete instructions, they were poor instructions. (They were also poor instructions for many other reasons discussed later.) A story half told is more confusing than no story at all. If the other half of the story were told in other instructional documents, the field not only had to look in two places, but it also had to match them together. If the complete instruction were given in another non-legal document, duplicating the material in the regulations and adding to it, the field personnel would disregard the instructional aspects of the regulations, thereby making that part of the regulations useless, meaningless, purposeless, and a little ridiculous. W h e n to the feature of incompleteness was added the information that further instructions from Washington would be forthcoming, field personnel must have received the firm impression that Washington was schizophrenic. Logically implicit in the practice of including administrative instructions in legal documents was the notion that administrative control is legal control—that administrative relations are legal relations. This notion is completely false. N o legal action was ever taken against field officials for failing to follow administrative instructions in the regulations. Discipline of field officials was administrative discipline—transfer, demotion, or removal. 24 T h e inclusion of administrative instructions in legal documents, however, may serve an administrative purpose when an agency has an unsophisticated field staff. Some field rationing personnel, encouraged by M r . Bowles' decentralization policy, came to feel that they could disregard any instructions from Washington except the instructions contained in legal documents. T h u s , the inherited attitudes of these officials—their superstition about legal documents—could be played upon to achieve an administrative result. In the long run, however, a better result would be obtained by re-educating the field personnel (and, one might add, the agency's administrator). Although there were a few matters placed in the rationing regulations for such a sly administrative purpose, most of the administrative detail included in legal documents got there as a result of lack of understanding of the function of the legal document, if not, indeed, by pure accident. Field instructions might reasonably be included in the legal documents (the "regulations") ( 1 )

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when punishment more severe than administrative discipline is indicated (when the violation of an instruction should be regarded as a crime), and (2) when field personnel's superstition about legal documents can be utilized to support compliance with instructions.25 AN INSTRUCTION TO T H E PRINTERS More indicative of the confusion with regard to the purpose of the legal document than its use as a vehicle for field instructions was its apparent use as an instruction to a printer. A few examples of the use of the legal document in this way will make the foregoing statement clear. Form of Certificates.—(a) OPA Form No. R-2, the nontransferable certificate for the purchase of new tires or tubes, OPA Form No. R-8, the nontransferable certificate for the purchase of retreaded or recapped tires or retreading or recapping services, and OPA Form No. R-20, the nontransferable emergency certificate, shall each be serially numbered and shall be divided into four parts, each bearing the same serial number: ( 1 ) a part to be retained by the dealer as a record which shall be designated as part A; (2) a part to be used by the dealer as the basis of replenishing his reserve, which shall be designated as part B; ( 3 ) a part to be forwarded by the dealer to the board which has issued the certificate, which shall be designated as part C; (4) a part to be given by the dealer to the purchaser, which shall be designated as part D. 2e Of course, all of the instructions as to the disposition of the parts of the certificates were printed on the certificates in much more detail. Without going into the question of whether anyone was entitled to the information contained in this quotation, it is obvious that no one needed the information. Once a person received a certificate from a board, he would find out more about it by looking at it than he ever could by reading the regulations. As for the boards, they probably received their supplies of the certificates before they received the regulations, and the printer received his instructions on a printing requisition before the regulations were drafted. What, then, was this instruction about how the certificate should be designed doing in the regulations? Provisions similar to the one quoted above were still being inserted in the regulations at the very end of rationing. Four months before the end of fuel oil rationing, the following material was added to the fuel oil rationing regulations: Class 3A Coupons (OPA Forms R-i 108A and R-1109A) in strip form and bearing consecutive serial numbers are issued with an identification folder. The gallonage value of each coupon on OPA Form R-1107A is one (1 ) gallon, on OPA Form R-1108A is five (5) gallons, and on OPA Form R-1109A is twenty-five (25) gallons.27

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Most of this information was printed on the coupons (before the amendment was drafted), and all of it would be discovered by the applicant immediately he received these new type coupons from the board. T h e type of coupon used in no way affected the amount of oil the applicant could purchase. Strip coupons (in place of the old type sheet coupons) were adopted because they cost O P A less money. A very large number (perhaps most) of the rationing amendments were actually instructions to the printer of some unspecified looseleaf service, as indicated above (page 3 3 8 ) . More will be said about this characteristic of the legal document further on. AN INSTRUCTION TO CIVILIAN

VOLUNTEERS

T h e legal documents also contained helpful hints to civilians who performed some rationing function such as certifying an applicant's needs. Thus, a tire inspector (a tire dealer serving without compensation) "shall fill in all the information and facts required in the 'Certification by Inspector' which is a part of O P A Form R - i and shall certify the information and facts provided in the certification by signing his name thereto." 28 Of course, the inspector's duties were more fully spelled out on the certification form and in the inspector's manual. In the fuel oil rationing program, a building other than a private dwelling received a ration equal to two thirds of the normal fuel oil requirements for heating the building. If the applicant had no verifiable record of how much fuel oil was used in the past, he was to get a certification from a heating engineer as to what the normal fuel oil requirements for heating the building would be. T h e regulations contained some instructions for this engineer. Such certification shall be based on an examination of the application and an inspection of the premises; the engineer, contractor, architect or plumber furnishing such certification shall take into consideration the construction of the premises, the purposes for which the premises are used and the weather conditions in the locality in which the premises are situated, and shall base his estimate on the standards established in and recommended by the Manual of the American Society of Heating and Ventilating Engineers ( 1942 ed.). 29 As a practical matter, such a provision could have no legal effect, and, in fact, had none. It was purely a piece of gratuitous advice inserted into the legal document. There were few conscious principles or techniques that directed the development of the rationing legal documents. Partly because of this fact and partly because of the nature of legal communication, the rationing

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legal documents could not inform many people other than attorneys. They were only part of a system of communication which also included interpreters (in this case, legal researchers). T h e following chapter describes in more detail the characteristics of legal communication (as illustrated in rationing) which made the legal documents extremely poor communications for any but attorneys (or, more accurately, which made them ineffective as communications for most laymen).

Chapter 14. COMMUNICABILITY OF THE RATIONING LEGAL DOCUMENTS ALTHOUGH THE INCLUSION of much material in the rationing legal documents was justified as necessary to inform the public, the rationing legal documents were extremely poor instruments of communication. T h e public was not informed by them and could not have been so informed without the intercession of interpreters. Besides the confusing profusion of legal documents already described, the legal documents were rendered poor devices of communication because of the attorneys' drafting mechanics and attitudes toward law-making. DRAFTING MECHANICS Mechanical drafting devices and the writing habits of the drafting attorneys tended to make the rationing legal documents poor communications. Drafting mechanics not only reduced the readability of the legal documents; they often rendered them completely unintelligible to anyone but a legal researcher. One of these characteristics of legal writing with which everyone is familiar is the excessive use of cross references. There were very few sections of the rationing regulations which a person could read without referring to some other section or sections. Usually these other sections referred one to still another section, etc., until one had made some sort of complete circle in organization logic. In the meantime, the reader had probably lost his place. Often ten fingers were not enough to keep the pages open at all the points involved in reading the complete rule. A few examples out of an almost unlimited supply will illustrate the almost complete lack of instructiveness in a rule with many cross references. When fuel oil rationing began, some consumers had fuel oil on hand in excess of the amount of the annual ration to which they were entitled. W h e n this was discovered, the regulations were amended to prohibit such consumers from using more of that oil than their rations

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allowed. T h e rule which prohibited use of such excess oil certainly informed no one but a legal researcher of the prohibition. On and after December 10, 1942, except as provided in sections 1394.5602, 1394.5658, 1394.5665, paragraph (b) of section 1394.5505, and paragraph (b) of this section, no person shall consume fuel oil unless [it] was acquired . . . in exchange for valid coupons . . . : Provided, that fuel oil included in a consumer's inventory pursuant to subparagraph (2) of paragraph (b) of section 1394.5659, shall be deemed to have been acquired in exchange therefore. 1 T o install the "freeze" preparatory to used tire and tube rationing late in 1942, all transfers of used tires and tubes were prohibited "except as provided in sections 1 3 1 5 . 4 0 1 ( c ) , 1 3 1 5 . 4 0 2 ( d ) ( 5 ) , 1 3 1 5 . 4 ° 3 ( z ) ( 5 ) ' 1 3 1 5 - 5 ° 1 ( d ) (4)» 1 3 1 5 - 5 ° 2 ( c ) ( 4 ) ' 1 3 1 5 - 5 ° 3 ( c ) (4)» 1 3 1 5 7 0 4 ( b ) and ( c ) , 1 3 1 5 . 8 0 1 ( f ) (6) (i) and (ii), 1315.804, 1315.806, and paragraphs (b) through ( f ) of this section 1 3 1 5 . 8 0 7 of these regulations." 2 T h e excessive use of cross references in the rationing legal documents had three reasons. T h e first one was faulty organization. Ration orders organized on a functional basis—application, eligibility, ration determination, ration issuance, ration recording and reporting, etc.—usually required more cross references than those organized by type of respondent. Rationing actions usually related to a certain type or group of respondents—sick persons, persons who lost their ration books, dealers, wholesalers, industrial users, persons who wished oil for space heaters, exempt agencies, etc. Thus, a rationing action affecting one group of respondents in a certain way, when installed in a functionally organized order, required changes in or references to many parts of the ration order. O n the other hand, as exceptions or special treatment were applied to different groups of respondents, the general or functional parts of the orders would have to be modified. Typically, these sections would begin, " E x cept as provided in sections," etc. T h e best organization for drafting purposes depended upon which of the two types of rationing actions were most frequent—the generalfunctional or the special respondents. This question probably could not be determined in advance. As time went on, the drafting attorneys, through revisions, tended to find the type of organization which best matched the preponderant type of rationing action in each program. If the organization was way out of line with needs, the drafting attorneys tended to ignore the organization and put all of an action in one place in the regulations, whether or not it fitted. T h e tire rationing regulations will illustrate this point. T h e revised tire rationing regulations were

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functionalized to a considerable extent. As new groups of eligibles were added to the program, rather than change the parts on definitions, eligibility, application, issuance of certificates, etc., the drafting attorneys included most of the provisions relating to the new groups in the eligibility section. T h u s , when taxicabs were put in the preferred eligibility group under special conditions, most of the amendment was an addition to Section 1 3 1 5 . 4 0 5 (Eligibility Classification: List A ) . Included was a definition of a taxicab, a special method of application, the eligibility provisions, and restrictions on the use of the tires after they were obtained. 3 In such cases, the drafting attorneys had simply found the organization of the order too burdensome. T o avoid the amendment of many parts of the order, they disregarded the organization of the order. Even if the attorneys achieved a type of organization which minimized the use of cross references, there were still a great number. Apart from the organization of the regulations, another reason for cross references was natural, human laziness. Rather than simply refer to other sections, the drafting attorneys could have repeated the necessary information in the new section. However, such repetition would have required more drafting time and energy. Unquestionably, one of the reasons why cross references were used so much was because they were the easiest way out. A third reason for the excessive use of cross references was a strong reluctance on the part of the attorneys to rephrase something already in the regulations. T h e attorney leams that the best way to get a consistent reaction from a court is to use words which the court has already interpreted. Synonyms for those words will not do. This legally acquired attitude of the attorneys was carried into regulation drafting, although most parts of the regulations obviously would never be the subject of court construction. T h e dislike of rephrasing or even repeating words and phrases was simply in the attorneys' bones. Hence, cross references to already existing legal words and phrases were resorted to. Another drafting mechanic which made at least the amendment impossible as an instruction was the attorneys' use of the amendment as a printer's instruction. Even before O P A had acquired any looseleaf services, attorneys were drafting amendments which were simply instructions to someone to make certain changes of words and phrases on various pages of a mythical document called the regulations. Actually, what the attorneys were amending was not a document, but the " l a w " — " a brooding omnipresence in the skies"—something to be determined by legal (almost mathematical) research. This subconscious concept of the regulations (the " l a w " ) was completely at war with the notion of the legal document as an instruction to the field or the general public.

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Shortly after fuel oil rationing began, it was discovered that the ration formula did not provide enough oil for house trailers. T h e rationing ofcials decided to allow the " m a x i m u m of the range" rather than the "midpoint of the range" for house trailer rations. These concepts were well known to boards and the change simply meant that the square foot floor area of the trailer applied to the "maximum of the range" column in a table would give the ration to be issued. T h e rationing officials also wanted to excuse trailer dwellers from the requirement of furnishing a dealer's certification as to the amount of oil sold for use in the trailer during the first pre-rationing year, and they also wanted to include old railroad cars used as permanent dwellings in the category of trailers. These simple plans were incorporated in the regulations by means of the following amendment—a printer's instruction of one 200-word sentence. Subparagraph ( x ) of paragraph (a) of 1394.5001 is amended, a new subparagraph ( 1 6 a ) is added to such paragraph (a) and in subparagraph ( 2 3 ) of such paragraph (a), the phrase "structure, including a house trailer," is substituted for the word "structure"; in subdivision (iii) of subparagraph ( 1 ) of paragraph (a) 1 3 9 4 . 5 1 5 1 , the word "or" is added after the phrase "its use"; and a new subdivision (iv) is added to subparagraph ( 1 ) or such paragraph (a); in paragraph (a) of 1394.5253 the phrase "other than a house trailer," is inserted between the phrase "in any premises," and the phrase "or for hot water"; in paragraph (a) 1394.5256 the phrase "other than a house trailer" is inserted between the words "private dwelling premises" and the words "during the heating year"; in paragraph (b) of such section, the phrase "private dwelling premises other than a house trailer" is substituted for the phrase "the premises"; in paragraph (e) of such section the phrase "other than a house trailer," is inserted between the words "private dwelling premises" and the words "and the amount"; a new paragraph (d) is added to such section; in 1394.5259, the phrase "paragraphs (c) and ( d ) " is substituted for the phrase "paragraph ( c ) " ; in paragraph (a) of 1394.5403, the phrase "(other than those which are house trailers)" is inserted between the word "cars" and the word "may"; and a new paragraph (k) is added to 1394.5902; as set forth below. 4 Such an amendment becomes more significant when one remembers that Federal Register reprints of amendments were obtained and diligently mailed by some field and industry relations officers not only to the O P A field organization but to several thousand members of the industry for their instruction. Another drafting practice which made the legal document useless as an instruction was the use of drafting tricks. Often the drafting attorneys would discover that they could make some rationing plan "legal" by changing only one or a few key words in some strategic part of the regulations. T h e n , by the strenuous application of logic to the words of the

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regulations, one could discover that, sure enough, the plan was "covered." Changes made in this way were completely uninformative to anyone but a legal researcher. The use of these drafting tricks was, therefore, completely inconsistent with the inclusion in the regulations of the very large amount of purely instructional and non-legal material, described in the last chapter. However, such drafting tricks were used a great deal. After fuel oil rationing had been in operation for a few months, it was discovered that some people would not be able to get through the year without running out of oil. To take care of these people, the hardship ration provision was installed. At first, hardship rations were issued only in the East; they were not issued in the Northwest (Washington, Oregon, and the panhandle of Idaho). When it became necessary to extend the hardship program to the Northwest, this was done by the following amendment: "Section 1394.5051(b) is amended by deleting therefrom the phrase '1394.5310.'" 1 If this amendment had been the only written material on this very important rationing action, it is apparent that, without legal aid, no one would have discovered about the action for months, maybe years. However, the complete story, with full instructions to the public and to everyone else concerned, was told by press release and field instruction. Although the amendment could inform no one, it was legally accurate. Early in 1942, the driver of an automobile which regularly carried passengers to work was made eligible for recapped and second grade tires. Later in the year, according to the recommendations of the Baruch Committee, it was decided to make all members of the car club who had cars—not just the driver—eligible for recapped and second grade tires. In the original provision, the driver had been required to present to his local board a certification from his plant transportation committee "that other practicable means of transportation are not available." The amendment extending eligibility to all members of the car club simply changed this certification to read, "that other practicable means of transportation, exclusive of the automobiles of other workers, are not available." * The reader can get a good idea of the instructiveness of this amendment or of the section of the regulations it amended by simply trying to figure out how this change in wording could bring about the great change in the program described above. Actually, the change in the program was not brought about or described by the amendment but by newspapers, instructions, meetings, etc. However, the amendment satisfied the OPA attorneys, and their satisfaction was necessary in order to make the change in the program. The reaction of judges was not involved. There were many other drafting tricks which tended to make the legal

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documents poor communications but did not result in such completely incomprehensible provisions as those described above. For example, when a word used throughout an order needed to be changed, a sentence was often added to some part of an order saying in effect that " A , wherever used in this Order, means B . " Thus, when O P A state directors became district managers, many ration orders were amended to redefine state director to mean district manager. 7 W h e n O P A district managers became district directors, there was a general ration order issued (no. 1 3 ) , the entire content of which was as follows : All references to "District Manager" and "State Director" contained in previously issued ration orders, general ration orders, procedural regulations, and amendments thereto, are amended to read "District Director." In the latter case, there was not even an attempt to correct specific documents. General Ration Order 1 3 was purely an amendment of the " l a w , " not a change in a document for purposes of instructing or informing the general reader. Another device used which shows that the drafting attorneys were writing to legal researchers rather than the public was the way they often terminated provisions. Rather than remove the provision from an order or place it in an appendix, which, if writing for a looseleaf (as they usually did) they could have done, they often would insert a date before which the applicant must apply or take other action. This date was often inserted at the time of, or after, the termination of the provision. Thus, when the fuel oil hardship provision was terminated at the end of the first year of rationing, an amendment simply added between the words "may apply," the words "before September 1 3 , 1 9 4 3 , " making the whole phrase read "may before September 1 3 , 1943 apply" to the board, etc. 8 This amendment was issued September 1 0 and effective September 1 3 . T h e newspapers would carry the story of the termination on September 10, the issuing date. T h e amendment or looseleaf page replacements would probably not be printed and distributed until after September 1 3 . Thus, after September 1 3 , a person would be informed bv the legal document that he could apply for a hardship ration if he did so before September 1 3 , a date already passed. He would be instructed fully how to apply, etc. Such a person must have thought Washington was full of practical jokers. T h e reason the attorneys often terminated provisions in this way was because this method did the job just as thoroughly as any other as far as the " l a w " was concerned. A t the moment they were not thinking about the legal document as an instruction to the general public. They also may have used this device because of their

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desire to have the regulations describe the past as well as the present and the ftiture. T h i s possibility will be discussed in the next section. Because drafting attorneys sometimes thought of the regulations purely as " l a w " rather than as instruction, they sometimes made corrections in the regulations simply by adding the correct provision without removing the incorrect one. For example, the original shoe rationing regulations provided that a dealer should refund a ration stamp to a customer if he was "unable to fill a consumer's order." 9 W h e n asked what they meant by that phrase, the shoe rationing officials decided they meant "does not" fill an order. 1 0 T h e amendment correcting this ambiguity did not remove the ambiguous phrase; it simply added a correction. Thus, a person reading the shoe rationing regulations for instruction would find himself puzzling over the following two rules: An establishment that is unable to fill a consumer's order for which it has received valid ration currency . . . must return to the consumer a special shoe stamp as a refund. . . . Where an establishment is able to fill a consumer's order, but does not do so, it may return a special shoe stamp to the consumer if it has received valid ration currency for the order. An intelligent reader would naturally wonder why it took so many words to state this simple rule. Another feature of the rationing legal documents which made them, with a f e w notable exceptions, 1 1 extremely poor instructional documents was writing style. M o s t people are familiar with the extreme obscurity of much legal writing. M o s t of this obscurity of style can be attributed to tradition rather than to lack of writing ability. Toward the end of 1942, there was a drive on the part of O P A attorneys to achieve simplicity in legal writing, and this drive produced some notable achievements, such as Procedural Regulation 1 2 (Replacement of Lost, Stolen, Destroyed, Mutilated, or W r o n g f u l l y W i t h h e l d Ration Books or Coupon Sheets). T h e effort proved too much, however, and soon the attempt to write in "basic English" was given up. Examples of the difficulty of legal writing style are hardly necessary, but one illustration chosen entirely at random from an order drafted after the period of the "basic English" drive may serve as a reminder to the reader. No Class 3 slaughterer may sell or transfer, during any quota period beginning on or after May 14, 1945, more meat resulting from his own slaughter of livestock (excluding to the owner of livestock transfers of meat resulting from custom slaughter of livestock by the Class 3 slaughterer for the owner of such livestock), or from custom slaughter of livestock for him, than his quota for that period. 12

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Unquestionably, legal writing could be much simplified, much more readable, and still be legal and accurate. Attorneys could be trained to write well the same as anybody else. However, the exigencies of legal work—i.e., communicating with other attorneys, including judges—require accurate writing rather than good writing. The written output of an attorney—private instruments, legislation, etc.—is intended for the pemsal of other attorneys; it is intended to communicate with other attorneys, to elicit a desired response from them. Other attorneys are presumed to have acquired an ability to understand, to be influenced by, legal writing which other people generally do not have. It is not clear just what this ability includes, but one important ingredient of it seems to be patience. LEGAL ATTITUDES TOWARD LAW-MAKING AND THE INSTRUCTIVENESS OF T H E LEGAL DOCUMENT In addition to the mechanics of drafting a legal document, there appear to be a number of attorneys' attitudes toward law-making which also help to make the legal documents poor communications for any but legal researchers. In this section, some of these attitudes will be described and analyzed and their results on the instructiveness of the rationing legal documents assessed. The Drive for Accuracy Among the rationing officials, the attorneys were the defenders of complete accuracy in all documents. Every written document was "cleared" by the attorneys for accuracy. They insisted upon completely refined and qualified statements, both in the legal documents which they drafted and in non-legal documents which they cleared. The result was often a document or statement so qualified as to be almost unreadable. The attorneys appeared not to be concerned at all with ease in reading but only with the accuracy of the statement. Consequently, the regulations were full of long sentences with innumerable qualifying clauses and phrases which would tax the reading ability and power of concentration of the most highly educated person. The significance of this attitude of the attorneys was not so much that they sought accuracy as that they sacrificed readability, intelligibility, and instructiveness to accuracy, whether or not accuracy was important. Consciously or subconsciously, the drafting attorneys wrote for readers who were trained or disposed to squeeze the last drop of a conventionalized logic out of a word. The transfer rule in fuel oil rationing will illustrate the difficulty of a completely qualified rule.

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Except as provided in section 1394.5708, on and after November 1 , 1942, no primary supplier within or witnout the limitation area, and no dealer or supplier within the limitation area, shall transfer or offer to transfer fuel oil to any dealer or supplier within the limitation area, and no dealer or supplier within the limitation area shall accept such transfer except in exchange (made at, or at the option of the transferor within five ( 5 ) days after, the time of the actual transfer of the fuel oil or in advance thereof) for valid coupons bearing an inscribed serial number, or for other evidences, equal in gallonale value to the amount of the fuel oil transferred, or (where transfer is regularly made on a temperature adjustment basis) equal in gallonage value to the adjusted amount of fuel oil transferred: Provided, That no dealer or supplier shall knowingly transfer, or accept the transfer of, an amount of fuel oil in exchange for any exchange certificate in excess of the amount of fuel transferred for the coupons or the exchange certificates for which such exchange certificate was issued.1* T h e drive for complete accuracy contributed to making the legal document a poor instruction in yet other ways. Thus, when a word or term used throughout a ration order became obsolete, the urge for accuracy resulted in an amendment such as the one cited previously stating that "all references to 'District Manager' and 'State Director' contained in previously issued ration orders . . . . are amended to read 'District Director.' " Such amendments were not designed to inform many people about the change. However, they made the ration orders legally accurate, even though such accuracy was quite unimportant. Much of the excessive cross reference in the regulations resulted from a strong desire to avoid a single inconsistency in the regulations. Part of the drive for accuracy was the tremendous preoccupation with definitions. Every ration order had its long list of carefully defined words. Often, to solve drafting problems, a word would be given a slightly unusual definition. Thus, unless the casual reader of a ration order memorized the definitions before he started to read the order, he could very easily be misled. The following definition from the sugar rationing regulations will illustrate this point. "Depositor" means a person who has a ration bank account. Λ person shall be deemed a separate depositor with respect to each of his accounts, but shall be deemed a depositor only with respect to establishments served by such accounts.14 In the fuel oil regulations, because one type of ration currency used did not meet the definition of "ration evidence," all references to ration currency during the first year and a half were to "coupons, other evidences and delivery receipts," a very cumbersome way to say "ration currency." Where a legal statement might actually become the subject of dispute between attorneys—i.e., where duties were under discussion in

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courts or suspension hearings—accuracy rather than readability and instructiveness was obviously indicated. The behavior to be affected was the behavior of attorneys. Accuracy in these matters might result in fewer court cases being lost. However, where information of only general interest was involved, such as consumer eligibility and procedural provisions, the drive for complete accuracy seemed a strange waste of the powers of logic. It helped to make the legal document unintelligible to the general reader. Contemplated in Law The attorneys appeared to feel that mention in the regulations contributed something to rationing—legality, understanding, or something else. There were many rules in the regulations "authorizing" other rules to be issued at a later date. There was a section "authorizing" Washington to designate gasoline shortage areas and to apply the pleasure driving ban in those areas. There were sections authorizing Washington to designate certain occupations for additional food rations. Ration Order 2 (automobiles) notified its readers that "Regulations applicable to this Order . . . shall be established by this Office by the issuance of New Passenger Automobile Rationing Regulations." The regulations also often notified the readers that further conditions and rules would be established by instructions outside of the regulations. Although the attorneys were violently opposed to "rationing outside of the regulations," and even got the deputy administrator to issue a legal document forbidding OPA personnel to make exceptions to legal documents, they were satisfied with the situation if the fact of rationing outside of the legal document were mentioned in the legal document. Thus, the food rationing programs (and also stoves) allowed members of the trade to petition for "adjustments," and a very extensive rationing grew up outside of the regulations in food adjustment policies. The desire to have all rationing activities contemplated in the regulations, and the fact that this desire was often satisfied with an honorable mention in the regulations, resulted in the element or characteristic of incompleteness. Most field instructions incorporated in the regulations were only partial instructions. The same thing was true with regard to legal instructions on filling out forms. Such instructions were worse than useless as instructions, because they presupposed the separate issuance of a complete instruction, and they had no legal significance. An example of incompleteness both in a field instruction and an instruction on filling out a form is Section 1394.5453(b) of Ration Order 11 (fuel oil).

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At the time of issuing a Delivery Receipt, the Board shall enter on the stub attached thereto, the number and address of the issuing Board, the name and address of the person to whom the Delivery Receipt is issued and the amount of fuel oil which may be transferred in exchange therefor . . . . [and] shall enter on such stub the period of validity of the Delivery Receipt. . . . The delivery receipt, itself, called for those four entries and five more. Furthermore, it had a full page of instructions printed on the back. Examples of this attitude have been discussed in the foregoing pages. As long as the regulations contemplated an activity, the requirements of legal propriety seemed to be satisfied. Consequently, there were many rationing stories, some written for the public, some for the field, which were only begun in the regulations and were completed someplace else. There were also many rationing stories begun in one issue of the regulations and completed in another (e.g., a supplement). The regulations played the parts both of a bibliography and of a periodical, and neither of these parts contributed to the role of the regulations as a general communication. However, the "honorable mention" technique made certain that even in the field of non-legal instructions the rationing plans would be interpreted through the mediation of the OPA attorneys. Historicity of the Regulations Another legal attitude which affected the instructiveness of the regulations was the demand for unbroken legal continuity, the desire to have the regulations represent the complete past history of the program, its current events, and its promise of the future. Much material no longer of current or prospective interest was maintained in the regulations. The very common method of terminating a provision by including a date in the text of the provision before which the applicant must apply or after which the board could not take action has already been pointed out. Thus, many plans and procedures which had ceased to be operative were carefully described in the regulations. It was very easy for the reader to miss the date which rendered the material obsolete. Often this date was to be discovered only by following up a cross reference chain. The result was that the reader could never be sure whether he was reading law or history. The drafting attorneys for Ration Order 1 1 (fuel oil) put a great deal of this historical material in an appendix when the order was revised. Appendix A of Ration Order 17 (shoes) also contained material "now primarily of historical interest." Much of this dated material was kept in the regulations, in the text or an appendix, because of fear that it might have some lingering legal

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significance. Material which defined past duties and which might still become the basis for enforcement action needed to be kept available, of course. However, it did not need to be kept in the current legal documents. Old copies of the regulations were always available. In a few instances, recognizing this fact, drafting attorneys used the technique of honorable mention, discussed in the previous section, and continued the old material in effect by reference. Thus, when the procedure for replacing lost or stolen coupons was changed, made uniform, and centralized in Procedural Regulation 12, the amendment which made the necessary changes in Ration Order 1 1 1 5 provided that the replacement of coupons lost before March 28, 1943 "shall be governed by the former provisions of this section which are continued in effect for this purpose." Obsolete material relating to consumer eligibility and other matters not in the nature of duties were also kept in the regulations for long periods of time. Thus, when it was decided to issue fuel oil cooking and lighting rations for six months instead of three, the amendment incorporating this change in the ration order merely added a proviso. The amended section then instructed the reader that the ration for cooking or lighting "shall be the amount of fuel oil needed for such purpose during the three (3) month period beginning with the date on which the ration is required . . . : Provided, That where the commencement date of the ration required is on or after March 10, 1943 . . . the allowable ration shall be the amount of fuel oil needed during the six (6) month period" following the beginning date. 14 When it was later decided to issue these rations for any period up to one year, another proviso was added to the section. 17 This section then informed a reader that these rations were issued for three months, except that those issued after March 1 0 , 1 9 4 3 were for six months, except that those issued after September 15, 1943 were for any period up to one year. The result obviously was not a good instruction. Separating the current rationing law from rationing history became more a matter of legal research than of straight reading.

Chapter 15.

MAKING T H E RULES KNOWN

LEGAL COMMUNICATION by the written word is not an effective means for eliciting desired reactions from persons other than attorneys. Since the great mass of people did not have legal advice, and particularly since local boards did not have it (except when they specifically requested interpretations from O P A district offices), non-legal means for communicating rationing plans to the general public and local boards were developed. Thus, despite the tremendous assumptions underlying the legal documents that they were the principal means of communicating rationing plans to all concerned, the rationing plans were actually communicated to non-attorneys chiefly by other means. Although communication with the field was verbal to an important extent, the principal non-legal communicative activity of the Washington rationing staff was the preparation of non-legal field instructions. Still other means were used to inform the general public. T h e reader will soon discover that ideas about the nature and function of non-legal instructions were not developed much further than those about the legal documents of administration. THEORIES OF T H E RELATION OF INSTRUCTIONS TO LEGAL DOCUMENTS At the very beginning of rationing, rationing officials did not think of instructional material as separate from legal documents. T h e regulations were the result of all planning and the method by which the plans were communicated. This conception of the role of the regulations can be partially illustrated by the following quotation from a transcript of one of the first planning meetings held by a newly assembled group of gasoline rationing officials on April 3, 1942. In this over-all function of preparing instructions, and descriptions, it should be remembered that our function, as we understand it at the present time, is merely to instigate this material, so to speak, and perhaps to prepare it in its first rough form. The actual drafting of material of this type for the field is a proper function of the legal staff. We, however, give them the ideas and

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should take care to see that it is prepared in as nearly a satisfactory manner to us as possible. The very first set of rationing regulations, the tire rationing regulations, were distributed to the state tire rationing administrators without any further instructions. The regulation was the sole means of communication. This idea was soon abandoned, and all other rationing programs were installed with both regulations and instructions. One of the very first signs of instruction consciousness and methods of instruction is to be found in the early rationing legal documents. The attorneys who drafted these documents thought of them as the chief means of instructing the field organization and included in them many matters of field procedure, such as the quota procedure in tire rationing. They also developed the idea of a "guide to decision" and included in the regulations a large amount of material which was entirely of this character. The eligibility rules in tire rationing designated general classes for eligibility. These rules were then followed by a number of sentences or short paragraphs designed to help the boards interpret the general rule. One example from the early tire rationing regulations will illustrate this early instructional technique. A certificate for a new tire could be issued for A vehicle used exclusively . . . to maintain garbage disposal and other sanitation services. (i) Certificates may be issued for any vehicle essential to dispose of refuse of various kinds, to operate sewage systems, and for similar purposes. (ii) No certificate shall be issued for passenger cars to be used by administrative personnel concerned with garbage disposal or sanitation services. . . . Certificates for tires or tubes shall be issued only for vehicles actually used to transport garbage and other refuse. . . ,1 This early instructional idea assumed that the rules needed further elaboration but that the elaboration should be in the legal document. As was said before, legal documents were accompanied by non-legal instructions almost from the very beginning of rationing. These early non-legal instructions were based upon the idea that the regulations must be restated in laymen's language for the field staff—that the field personnel could not understand the legal language. Although most rationing instructions during the first year and a half of rationing were mere paraphrasings of the legal documents, they were, nevertheless, very important methods of communicating rationing plans to the OPA field personnel. The legal documents could not easily be understood. Furthermore, an amendment to a ration order made changes in various parts of the order. It did not state the change as a unit. The field instruction,

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on the other hand, could and sometimes did state the change as a unit; it stated what the amendment did. M a n y of the early field instructions simply repeated the rationale prepared for the amendment by the attorneys. Except for subjects not covered by the regulations, O P A rationing instructions never did develop into much more than a restatement of the regulations, and the restatements were not always improvements. T h e next instruction theory in order of time was that the legal document might be incomplete and need elaboration in a non-legal instruction. Only with the development of this idea can it be said that rationing officials had acquired any instruction consciousness. T h e idea was not well developed at all, and only now and then did a glimmer of consciousness of the instruction problem appear. T h u s , when the regulations required boards to issue tire certificates only to persons who would not use the tires to make hauls in excess of 200 miles, but allowed district directors to approve certificates for tires to be used for longer hauls, instruction writers vaguely sensed a board problem that needed some instructional assistance for its solution. T h e instructions told the board to inform the applicant that if he wanted to use his tires for hauls in excess of 200 miles he must first obtain the district director's permission. T h e regulations imposed no such duty on the applicant, but the boards could not follow the regulations and foresee the future; they could follow the instruction. T h e attorneys began to accept the idea that there were a few things which could be left entirely out of the regulations and covered only in instructions. Most attorneys would mention the subject matter in the regulations, however, pointing out that it would be communicated by means other than the regulations. Thus, when the tire rationing regulations were revised and reissued as Ration Order l A on November 22, 1942, all the quota procedure was removed, leaving only a reference to the fact that "Washington, D . C . , may from time to time set and allocate quotas and reserve quotas . . . and may administer, adjust, and revoke such quotas." 2 Subjects such as surveys and inventories were left by the attorneys principally to non-legal field instruction. M o s t of the subjects left entirely or principally to non-legal instruction, however, related to O P A district or regional office administrative procedure—not to board procedure. A fully developed theory of field instruction appeared at only a very few points in the rationing department. T h e fully developed theory regarded the legal document as having no function or use as a field instruction. Instructions were to be written as though the legal document

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did not exist, or existed only on the musty shelves of law offices or courtrooms. Of course, the field instruction was not to contradict the legal document and vice versa, but it was to be written as though it were the only source of information about a rationing program which the field would receive. Only in the fuel oil rationing instructions (the fuel oil guide), however, was such a theory of the field instruction ever approximated, and even there not until late in 1944. Elsewhere, beginning in the summer of 1943, the instruction theory accepted by official order of the rationing department and of OPA was the most primitive of all the instruction theories developed during rationing—the theory of the legal document as the sole instructional vehicle. This final official system was called "the annotation system." It was actually an abdication of the function of board communication to the Washington attorneys and to the field offices. It will be discussed further on. T H E D E V E L O P M E N T OF I N S T R U C T I O N T E C H N I Q U E S One of the earliest kinds of instruction was an instruction or guide to the exercise of discretion. Many rationing delegations were couched in very general terms. Rationing officials became conscious that boards (or district offices) might need help in interpreting these broad grants of discretionary power. The rationing attorneys became conscious of this need first and included in the regulations much material which was really only a guide to the exercise of broad discretion. The tire rationing eligibility rules were followed by illustrations of how the broad eligibility rules applied in specific cases. In July of 1942, boards were allowed to issue certificates for tires to be mounted on equipment purchased without tires provided the applicant submitted "a satisfactory explanation . . . from the vendor . . . stating the reasons why the vehicle was not fully equipped." 3 T o help the boards decide what a "satisfactory explanation" was, the drafting attorneys thought up a few examples and included them in the regulations. Among the reasons which may satisfactorily explain the lack of original equipment are the following: That the vehicle or equipment was shipped to him without tires or tubes by order of a governmental agency. . . . Often these legal guides to board decision simply admonished boards "to take into consideration" certain things when making decisions. Thus, the first sugar home-canning program allowed additional sugar for canning "the quantity of fruit the Board deems to be reasonable." The board was instructed by the regulations to give "due consideration to the period within which the fruit will be consumed, the past practice of

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the individual or family unit . . . the prevailing home canning practice in the locality. . . .* T h e attorneys did not have a monopoly on the guide to decision type of instruction. W h e n the annotation system was adopted, most annotations were guides to decision under the general rules of the regulations. T h e y answered some of the questions which would come to a person's mind after reading the general rule in the regulations. Thus, the gasoline rationing regulations allowed unlimited amounts of gasoline " f o r the transportation of mail on behalf of the United States Government." 5 One of the annotations under this rule pointed out that "persons transporting special delivery mail in privately owned automobiles are eligible for preferred mileage." Fuel oil rationing officials consciously tried to narrow board discretion to the vanishing point. Specifically, they attempted to reduce discretion to a mathematical formula wherever possible. They realized that this approach resulted in injustice in a few unusual cases that did not fit the formula, but believed that it would actually result in less injustice than broad grants of discretion which would be interpreted in various ways by 5,500 local boards or by the same board for different applicants. A n example of the tendency to narrow the board's discretion by instruction was the first year hardship ration program in fuel oil rationing. T h e regulations contained a tremendous grant of discretion to the boards to issue hardship rations to any person "who finds that his [ration is] insufficient to meet his minimum . . . requirements for the balance of the heating year." T h e board was to issue such a person an additional ration sufficient " t o meet his minimum . . . needs." T h e field instruction reduced the adjudication and determination of hardship rations to a purely mathematical and clerical action. (See above, pages 3 6 3 64.) Even when it was impossible to reduce board discretion to a mathematical computation, the tendency among instruction conscious officials was to include in instructions as many specific applications of the general rules as they could think of in advance of board action under the general rule. In general, however, rationing officials allowed specific applications of the general rule to accumulate by the process of interpretations and appeals—by the case process—including them in the instructions one by one as specific cases were decided upon. M a n y of the annotations were formerly interpretations regarding specific cases. In the fuel oil regulations, boards were given power to issue rations for "any necessary purpose not otherwise specified in this O r d e r . " β A great case law grew

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up under this provision. Finally, toward the end of rationing, this case law was reduced in the instructions (the fuel oil guide) to a list of twenty-three purposes which were "necessary" and fifteen which were not. This list covered about 99 per cent of the applications presented to boards and thus cut their discretion with regard to interpreting "necessary purpose" by about 99 per cent. T h e guide to discretion (or decision) type of instruction was really a procedure for the mind. Not all administration is purely intellectual or moral, however, and so something else was also needed. The physical aspects of administration also had to be considered—the problems of space, time, materiel, and human reaction. A complete instruction technique will answer questions of this kind also. This more complete type of instruction will be discussed in the following pages as will also certain problems of presentation. The guide to decision was a very important instructional development. It distinguished the rationing department's approach from that of many other war-time regulatory agencies. It represented a non-legal approach to administration. T o the extent that the guides were developed in advance, the guide to decision reflected rationalism and a willingness to take a chance so lacking in legal administration. With rationing's far-flung administrative organization, the guide to decision was the sine qua non of uniformity in administration. It was interpretation before the event and, as such, represented the cardinal principle of instruction—an instruction should answer, not raise, questions. U p until the time the annotation system was adopted (summer of 1943), the instructions for most rationing programs scarcely developed beyond paraphrasings of the regulations. A few important instructional ideas appeared, however. One was that each instructional letter should contain only one subject, and sometimes four or five separate instructions were issued for one amendment to the ration order. This principle was violated more than it was observed, however. Nevertheless, it contained the germ of the idea of an instructional unity—that instruction is not about a ration order or a rationing program but about something much less than this, about a unit of the whole program. The idea of organization and visual presentation of organization also appeared. Some of the long, difficult, qualified statements in the regulations were broken down in the instruction into major ideas and subordinate qualifications and exceptions with a free use of marginal indentations to allow the eye to assist the mind in grasping an idea. A simple and effective indentation and sectionalizing system of presentation appeared, as follows:

MAKING THE RULES KNOWN

I.

395

A. 1

(a)·

(0· The principle of breaking down the long or complex legal ideas into short and simple statements in the instructions was generally applied very poorly. Often the legal statement was superior. For example, note the following two treatments of the same subject. The first quotation is from the regulation; the second is from the instructions. Upon presenting the appropriate part of a certificate or receipt, any person may purchase only the type of camelback specified thereon from a person dealing in or making camelback. B. Replenishment of passenger type camelback will be permitted only if the certificate authorizes the use of passenger-type camelback. C. Replenishment of truck-type camelback will be permitted only if the certificate authorizes the use of truck-type camelback. The idea that an instruction is directed to someone made very little headway. The instruction quoted above was an instruction for retreaders and recappers of tires. However, this instruction was not sent to them but to the local boards. The boards had nothing to do with replenishment of camelback. They did not need that information. If, by chance, they were asked a question by a retreader, the boards could look up the answer in the legal document or refer the inquiry to the OPA district office. They probably should have done the latter, both to reduce the number of inquiries and to avoid the necessity of becoming experts in the regulations. For the most part, rationing field instructions instructed everybody about everything. They were not related to the instructional needs of various persons or levels of the organization. Because of lack of systematic organization, the early rationing instructions had very little reference value. They were very difficult to cite. The very first rationing instructional series was a series of letters sent out by the OPA division of field operations, numbered from 1 to 137 (the last one), called "State Rationing Administrator Instruction Letters." They had very little rationing detail in them, and left to the state rationing administrators the task of preparing instructions to local boards on each change in the program. Very soon after rationing began, however, the units actually planning the rationing programs began to prepare a paraphrase of each amendment called "Explanation of Amendment." These "explanations" were reproduced in bulk and sent to the state rationing administrator under a covering state rationing adminis-

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tTator instruction letter. This officer then sent copies of the amendment and the "explanation" to his local boards. T h e state rationing administrator instruction letter series pertained to all the rationing programs. From this single series for all programs, the rationing department in early summer of 1942 jumped to a system involving a deluge of series. For each rationing program, there were four local board rationing letters as follows: ( 1 ) Rationing Guides, ( 2 ) Operating Instructions, ( 3 ) Reporting Instructions, and (4) Information Bulletins. There were also a local board general rationing letter for matters covering more than one program and eventually a local board mileage rationing letter (relating to tires, automobiles, and gasoline) and a local board food rationing letter (covering more than one food program). Each of these "Letters" formed a series numbered in straight numerical sequence. Since at one time there were thirteen different rationing programs, under this system there were at one time fifty-five separate series of rationing "letters." T h e field offices above the board level were instructed by field operating instructions, field reporting instructions and staff memoranda, each a separate numbered series. Also to the field went less formal instructions by memoranda from the individual rationing branches, by teletype, by telephone and by personal communication from Washington representatives traveling in the field. T h e theory of the rationing guide, which went to boards, was that it was to instruct the board members in the exercise of discretion. T h e board operating instruction was to cover board procedures—processing applications, filing, forwarding, etc. T h e board reporting instruction was to carry all instructions about reporting to Washington. T h e information bulletin was to contain matters of general interest. T h e system broke down. It was too elaborate. Besides, it was not possible always to distinguish between matters of board discretion and matters of board procedure. Board clerks could screen out many obvious cases of ineligibility and not send those applications to board members. Sometimes the act of discretion came right in the middle of a procedure. T h e rationing guide and the operating instruction tended to merge. Eventually, the whole letter series was abandoned; most programs adopted the annotation system. All that remained of the elaborate letter series was the fuel oil guide. It, however, had undergone many changes. Instruction of field offices above local boards lost all form completely. At the end of rationing, each program had a small section in the looseleaf called a "Field M a n u a l , " but most communication with, and instruction of, the field above the boards was done outside of the looseleaf in a completely formless manner.

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Among the analysts in the office of the executive officer for rationing, who devised the board letter system, certain other ideas about instructions were associated with the system. Instructions were to be directed to specific persons or levels in the organization according to the needs of those persons or levels. T h u s , board instructions were not to include instructions to the industry with regard to such things as reports to Washington, restrictions on transfers, etc. Another idea was that there should be one subject to an instruction—the subject to be an operation rather than a common feature of many operations. These analysts also thought of the board letters as complete, apart from the regulations. T h a t is, the letters were not to assume or depend upon the existence of the regulations. Another idea held by the analysts in the office of the executive officer was that instructions should answer all possible questions. Instruction writers should try to think of all possible questions in advance and try to answer them in the instructions. N o n e of these ideas about instructions was fully realized. T h e analysts in the office of the executive officer for rationing did not write the rationing instructions; they only cleared and criticized them. In M a y of 1943, O P A , on contract with a private printing firm in New York, acquired a looseleaf service for local boards. E a c h rationing program had a section in the looseleaf. A n up-to-date version of each ration order and all outstanding board letters were reproduced in the local board looseleaf service (or simply local board service), as it was called. Thus, at first, the looseleaf was chiefly a handy binder for the local board letters. For the regulations, it was a real gain. Amendments to the regulations, usually only instructions to a looseleaf printer anyway, became page replacements for the board service, and for the first time boards had accurate and up-to-date versions of the ration orders which could be kept up-to-date. T h e board looseleaf service was distributed at a rate of three or four per board with much larger quantities going to field offices above the boards. A few months after the board looseleaf service was acquired, the rationing department adopted the annotation system, thereby deciding to reprint again all rationing regulations and instructions in annotated form. T h e departmental decision that all board rationing instructions be rewritten in annotated form was not popular among the rationing branches. Some instruction writers thought that it was improper for the rationing department to tell persons hired as writers how to write. Most of the rationing branches dragged their feet. Some instruction writers simply refused to rewrite their board instructions as annotations to the legal documents, and the attorneys, who were, of

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course, in favor of the annotations system, rewrote the regulations and instructions in annotated form. By the end of 1943, there were still ration orders which had not been annotated, and so the O P A department of administrative management was prevailed upon, without too much difficult}·, to issue an agency order commanding that all ration orders be annotated by a certain date in January. This order, of course, had no effect, but eventually all ration orders were annotated except Ration Order 1 1 — t h e fuel oil rationing regulations. T h e fuel procedures writers refused to annotate Ration Order 1 1 and were passively supported by their superiors in the fuel rationing division. Ration Order 1 1 was never annotated. Instead, the fuel procedures writers went to work to improve the fuel oil guide as an instruction to the point where its superiority over the annotations system would be recognized by everyone. T h e y did not succeed in getting everyone to recognize this superiority. However, they did succeed in weakening the confidence of many people in the annotations system, to the point where a new deputy administrator asked that a study be made with a view to deciding which system was superior and if all programs should adopt the system of the fuel oil guide. Some of the principal assistants to the deputy administrator became convinced that the annotations system was full of weaknesses, had been a mistake in the first place, and that the principles of the fuel oil guide were the correct ones. They were not convinced, however, that the fuel oil guide applied those principles with complete efficiency. Most of the instructional ideas of the fuel oil guide are ideas which have already been mentioned in one context or another. T h e y were developed within the rationing department, some here, some there, at one time or another. However, the fuel procedures writers were conscious of their use of these ideas, and also added to them. T h e fuel oil guide was the result of rationing experience with the problem of instruction. T h e fuel procedures writers fully accepted the cardinal principle of instructions that an instruction should answer all possible questions on a subject and should never suggest questions. Having accepted this principle, they were opposed to the case approach and always tried to get the planning officials to solve all the questions in advance that they possibly could. T h e procedures writers solved many of the questions themselves in the process of writing the instructions. Much of the fuel oil planning was done by them. One of the central principles of the fuel oil guide was that the legal document should be disregarded—the instruction should be written as though the regulations did not exist. T h e fuel procedures writers would

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have been quite content if the regulations were not sent to local boards, at all. Since the regulations were sent to local boards, the fuel procedures writers omitted from the guide the extremely remote case, simply referring the boards to the regulations if and when that case arose. This practice kept the guide from becoming replete with improbabilities. Although the normal procedure in the rationing department was for the "policy officials" to request the attorneys to draft an amendment, which was turned over when drafted to procedures writers for any further instructional implementation they felt necessary (and to which the attorneys would agree), this procedure was finally reversed in fuel oil rationing. T h e instruction was first drafted, and then the attorneys drafted an amendment from the instruction. In fuel oil rationing, the final planning of the details, the detailed implementation of general plans or "policies," was done by the fuel procedures writers rather than by the attorneys. Elsewhere in rationing, the detailed implementation of general plans was by attorneys in the process of drafting amendments to the regulations. T h e fuel procedures writers always decided exactly to what persons they wanted to direct an instruction and excluded from an instructional document instructions to any other persons. T h e fuel oil guide was an instruction to local boards, not to the industry or to OPA district offices or to anyone else. If a board would become involved in any part of an operation, the board's part was carefully described, but only enough of the rest of the operation so that boards would know what to expect. T h e fuel oil guide was organized on the basis of procedural or operational units. It was not functionalized as were most ration orders (and, hence, annotations systems). T h e principle of organization was not logic. It was the arrangement of events, both mental and physical, in space and time. T h e fuel oil guide described actions at the boards in the order in which those actions should take place. It was impossible to instruct a board volunteer on some specific duty by referring the volunteer to some part of an annotated ration order. W i t h the fuel oil guide it was different. Almost any possible fuel oil rationing activity at a board could be found described in the guide in a continuous series of sentences, paragraphs or pages, depending upon how extensive the activity was. A volunteer could be referred to specific pages which completely instructed her (or him) on the specific activity to which she was assigned. T h e local board's part in fuel oil rationing was presented as a series of actions rather than as a series of ideas. T h e actions had beginnings, intermediate parts, and endings. T h e fuel procedures writers called complete instructions organized on a space-time basis "procedures."

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T h e fuel oil guide was sectionalized in the manner outlined before —I., Α., ι., (a)., ( i ) . Indentations were used to express subordination. Cross references were avoided exccpt for references to subject matter of remote applicability. Any information used often was repeated for each operation. However, an unusual exception or qualification was stated at one place and references to this remote possibility were made for each operation involved by cross reference rather than by repetition of the unlikely exception. There were very few matters centralized in this fashion. Almost the whole guide was a series of actual operations. In the summer of 1943, the rationing department officially adopted the annotations system of instructing the local boards. T h e department ordered all ration orders and board letters, only recently published in the local board service, to be revised and republished in annotated form. T h e annotations system was a reversion to an earlier level of instruction consciousness. It made "the regulations—the basic framework to which other material will be related." (Office Procedure, Budget and Planning, National N o . 1 , November 8, 1 9 4 3 ) . If any section or subsection of the regulations needed further elaboration, this elaboration was to be a series of sentences or paragraphs, called "annotations," following the legal section or subsection, numbered in straight numerical sequence, and "written in clear, terse language and in the imperative." ( A n addendum to the office instruction cited above). Material in annotations "shall not repeat anything that is clearly stated in the regulations." ( T h e same office instruction.) Repetition of material was discouraged. " W h e r e an annotation will apply to several separated paragraphs, it will be placed after the paragraph that is more important, and cross references will be inserted following the other related paragraphs." (Same) T h e use of outline and indented presentations was forbidden. "Annotations consisting of several paragraphs should not be in outline form nor carry letter or number designations for paragraphs." (Addendum to the office instruction.) In short, the annotation system was a denial of most of the instructional ideas and devices which had developed in rationing up to the time of its adoption. T h e annotation system was used by rationing drafting attorneys from the beginning of rationing. However, the earlier "annotations" were regarded by the drafting attorneys as part of the regulations and were, hence, published in the Federal Register. T h a t is to say, many ration orders had general legal statements followed by a series of elaborations or interpretations. These elaborations and interpretations probably would have little more influence on a judge than the annotations of the annota-

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tion system. Certainly, there was no distinction in quality or kind between the elaborations found in the ration orders and many of those found in annotations. T h e annotations affected the public just as much as did the elaborations and interpretations of general rules in the regulations. Either an annotation was " l a w " which was not published in the Federal Register, or many parts of the ration orders were really "annotations" which were published in the Federal Register. W h e n the drafting attorneys were very complete and detailed in the drafting of a regulation (or amendment thereto), the procedures writers had to think hard to find something that could be added by an annotation. On the other hand, some sections of the regulations were so general that the annotations really became the rationing " l a w . " In the latter case, the annotations were often written by the attorneys. Following are three illustrations. T h e first one is a part of a ration order—it is solid " l a w . " T h e second is an example of annotation where the writers worked pretty hard to find something to add to the legal rule. T h e third is an example of the annotation making the "law." Example 1 [A certificate for a new tire may be issued for] (d) A vehicle used exclusively for one or more of the following purposes: ( 1 ) T o maintain fire-fighting services. ( i ) A certificate may be issued for any fire-fighting apparatus, including such vehicles as ladder trucks, chemical trucks, and hose trucks. (ii) A certificate may be issued for other kinds of cars and trucks actually used for fire-fighting, including trucks without special fire-fighting equipment, and passenger cars, if the Board is satisfied that the vehicles in question will be used exclusively to fight fires or for the other purposes in subsections (a) to (d) of this section 405. (2) To maintain necessary public police services. ( i ) In issuing certificates under paragraph (d) (2) the Board shall be governed by the necessity of keeping the uniformed force and essential non-uniformed personnel of any Federal, State, or local police force in a position to render efficient service in the prevention and detection of crime.7 Example 2 [Regulations] Any individual consumer who is in the United States and who does not have and is not eligible for a War Ration Book 3, and who is not eligible for shoe rations under the next paragraph or under ( 129 ) may obtain a special shoe stamp, on written application to a District Office or to a Board designated by a District Office. . . .

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ANNOTATIONS f.oi] Applications. Eligible persons shall make application to any District Office or Local Board authorized by its District Office. [.02] Local Board authority. Only those Local Boards which arc authorized by their District Office may act under this section. [.03] Boards must be designated by District Office to act under this section. If a Local Board has not been authorized to so act, and an application is made to it by a person who finds it inconvenient to apply to a District Office, the Board should notify the District Office of this fact. 8 Example 3 [Regulations] Any registering unit or industrial user which needs an adjustment in its inventory of allotment (or other relief) may apply on O P A Form R - 3 1 5 to the board with which it is registered. . . . The Board must send the application, together with all other information received, to the District Office. . . . (In certain cases the Washington Office may authorize the Board to act on application under this section.) ANNOTATIONS Transmittal of applications. . . . Notifying applicants. . . . (Boards are authorized to act as instructed below.) Permanent Increases May Be Granted Retailers [.05] Application. A retailer (but not a wholesaler) is eligible for permanent increase in his allowable inventory. . . . [Compare this "annotation" with the "law" of the first illustration.] Increases to Cover Warehouses of Retailers [.10] Eligibility. An increase may be granted in the allowable inventory of a retailer to cover warehousing functions of warehouse establishments included within the registering unit and serving retail outlets within the same registering unit. . 1 1 ] Application. . . . .12] Board action. . . . Temporary Increases to Ship Suppliers [.16] Eligibility. A retailer or wholesaler who regularly delivers foodstuffs directly to ships for use on board and who holds a valid and effective license under War Food Administration Regulation 3 may obtain a temporary increase in his allowable inventory in addition to other temporary increases. .17] Application. . . . .18 Board action. . . . .19] Cancellation action. . . .· .01 .02

There was no difference between the type of material which appeared as "annotations" and that which appeared as regulations, except the latter was published in the Federal Register. T h e attorneys drafted many of the annotations and approved or determined the content of the rest through their clearance power. T h e annotation system was a reversion to the legal document as the sole vehicle of written instruction of boards

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(as far as Washington was concerned). Legal organization determined the organization of instructions. Legal language and writing style became the instruction writing style. Even more subtle and significant, however, was the fact that the annotation system fixed with the attorneys the function of completing the planning of the "policy officials." The drafting attorneys provided the detailed implementation of rationing plans in the process of drafting the amendments. Instruction writers received drafts of amendments when they started through clearance and hastily added whatever annotations they thought were needed to complete the legal writing. That is why some of the annotations were so absurd, such as the shoe annotations in the second example above. Procedures writers became less important, rarely drawing more than C A F - 1 1 by the end of rationing. Most of them were CAF-7 and g. Interest and proficiency in instruction writing all but disappeared, everywhere but in fuel oil rationing. T h e annotated regulations contained instructions to everyone affected by a ration program. Thus, boards received looseleaf services with a tremendous amount of instructional material which did not relate to them at all. The parts of the regulations which prescribed duties of the industry with regard to intra-industry relations were also annotated and contained in the local board looseleaf service. For Example: [Regulations] . . . where the billing for gasoline transferred is not received by the transferee at the same time as or prior to receipt of the transfer by him . . . . the transferee shall, where the exact amount of the delivery is known in advance, mail or deliver in advance to his distributor coupons or other evidences . . . . eaual in gallonage value to the amount . . . . of the delivery, or may, at the discretion of the transferor forward such . . . evidences . . . within five days ( 5 ) after receipt of such delivery. ANNOTATIONS [.01] Late billing. Only the late billings which are made necessary by the circumstances of the transaction are sufficient to justify a delayed surrender of coupons or other evidences. Circumstances which will justify such a later billing are: transfers of gasoline upon a temperature adjustment basis and direct deliveries made by one distributor for the account of another. . . . 10 An instruction such as the one cited above is purely an instruction to industry. What it was supposed to accomplish in a document which went only to OPA offices is a mystery.11 The example illustrates another instruction principle kicked over by the annotation system—the principle that an instruction should be directed to someone and written for his needs. The annotation system was as catholic in its perspective as

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were the regulations. T h e annotation system of instruction was the regulation system of instruction. T h e annotation system of instruction abandoned (or rather never appreciated) the notion of procedural or operational unity in instruction. Following the organization of the regulations, the only thing or operation described in an annotated regulation was how to ration a given commodity. T h e chief principle of organization was the logic of exposition and legal syntax. T h e office instruction covering the annotation system allowed short bulletins following the index for "information which cannot be logically related to any specific provision of the regulations." T h e annotation system abandoned what little the instruction writers in the rationing department had learned about "procedures" and "procedural instructions." Other criticisms of the annotation system are possible. A document written by one of the fuel procedures writers in the summer of 1944 illustrates these criticisms. A t this time, the pressure on these procedures writers to annotate the fuel oil regulations was very heavy. WEAKNESSES

OF ANNOTATIONS AS AN INSTRUCTIONAL TECHNIQUE 1 . Not procedural. Annotated systems are not organized with the idea of giving a running story on a single operational problem so organized as to present first steps (in terms of space and time) first. Consequently, for any single operation, a clerk has to look in several places and figure out, herself, what things should be done first. If she does the wrong thing first, she may have to do the whole job over. 2. A Confusion of Two Approaches. Legal matter should be organized from the point of view of what the public does or has a right to expect. Instructional matter should be addressed to the person who is to carry out the operation and should be organized from his point of view—that is, from the point of view of what he has to do first in any complete situation. Instructional matter should be problem-solving in its approach; it should not be a catalogue of duties. The annotated system mixes up these two approaches in that a legal statement is followed by a non-legal statement. It is largely a listing of duties, cach followed by a brief or unbrief elaboration. There is no chronological order of operations. One of the results of this is that District Offices must prepare bulletins for the Boards to show them in one place what is involved in cach change in the program. Furthermore, legal writing has a different flavor, a different method of statement, from the instructions. A person reading annotations must mentally change gears when he goes from the legal material to the non-legal. The result is that, under annotated systems, procedure writers do not write procedures. They are subordinate to the legal writers and only fill in the cracks, so to speak, with what the attorneys leave out. It would be better if everything there was to say on a subject would be included in the regulations

MAKING THE RULES KNOWN and written by the attorneys. This would result in instructions being, at least, consistent in point of view and writing technique, and, consequently, less confusing. 3. Unnecessary Length and Detail. A regulation must be complete in its coverage. It must cover not only Board operations but also District, Regional and National Office operations; all trade rights and duties; all sorts of minor prohibitions, restrictions and record keeping; and many other matters needed only to make certain that court cases can be won. When the regulation becomes the basic instructional vehicle, Boards mustplow through a tremendous amount of material they never need to know. The instruction is lengthy and tedious. W e all know that the most uninspiring, if not deadly, type of reading material is legal material. It hardly seems fair to force laymen on our Boards to figure out the complete import of a regulation. Legal writing involves the use of the logic of grammar (men have been hung on commas) and organization. Without an understanding of this logic, it is often difficult or even impossible to get the meaning out of the writing. T o overcome this, procedure writers will add to a legal statement a few lines (annotations) of simple explanation. This raises the question, why don't we write it that way in the first place? W h y do we force the Board to read the technical statement which must be explained? 4. The Illusion of "Everything in One Place." The annotated system as practiced by the Department has as its chief justification that "everything should be in one place." A brief examination of any annotated system will show this to be an illusion. T o complete a single normal operation, the Board member or clerk must refer back and forth through the annotated order. In some cases he doesn't have enough fingers to hold the book open at the various places. For example, the procedure for issuing a replacement gas cook stove certificate is found as follows: 1. How and where to apply. P. 1 5 0 . 0 1 - . 0 2 2. Eligibility (a) Fuel P. 138.03, .05, .08, P. 137.06 (b) No Equipment for purpose P. 140.01, .02 ( c ) Repairability P. 1 4 1 . 0 1 , .08; P. 1 2 7 . 0 1 , . 0 1 - 1 , .07 (d) Other P. 1 4 2 - 1 4 8 ; P. 1 5 3 . 0 1 , .02; P. 1 5 5 . 0 1 - . 1 3 3. Recording Action on Application P. 1 5 0 . 1 3 , .14 4. Issuing Certificates P. 1 5 1 , 1 5 3 . 0 3 , 1 5 6 . 0 1 , .03 The reason for this is that the instructions were not, and I believe could not be, written to instruct—that is, as procedures. They were written as a legal document for legal purposes. If the operation of issuing a replacement gas cook stove certificate were written up as a single procedure, a single guide, it would be much simpler for inexperienced Board members or clerks to do the job. This, however, would involve a separate instruction on the operation, distinct from the regulations. It would involve a departure from the annotation system; it would also involve some duplication as between regulation and instruction. However, a good instruction could be so complete that refer-

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enee to the regulations would be veiy rare and then a paragraph reference to the regulations could appear in the instruction. 5. Organization and Learning. The principles of organization and outlining were developed to aid man in comprehending and learning. Materials subordinate to others should be physically arranged so as to appear subordinate. Annotations are series of sentences, each separate and alone; they are coordinate, not subordinate. There is no distinction between a major proposition and the parts into which it can be broken. The mind is not carried along and aided to see the whole situation or operation in its true perspective. Important and unimportant, general and specific, are mixed together in indiscriminate fashion. A good instruction has form or organization—this, I believe, is its most important single aspect. This is the part on which procedure writers spend most time. I don't think it is too much to say that when the planning of the organization of instructions was taken away from procedure writers, procedure writers, as such, could have been abolished. 6. The Problem of Cross Reference. Everyone knows how irritating cross references can be. They arise chiefly because of a desire to avoid repetition. From the standpoint of an operating instruction, a good procedure writer would solve this problem along the following lines: Any material frequently used should be repeated rather than cross-referenced. If it is not frequently used (and this is a matter of judgment for which the "procedures man" is uniquely fitted), it should be placed in one (or a small number) central place so that all cross references can be to about the same place. When instructions are chiefly legal writings, the problem of cross reference is not solved in this manner, if at all. In fact, the legal writer is not presumed to be in possession of facts or skills which enable him to solve the problem at all. This type of problem is one of those which make procedure writing a specialized function—almost a profession. (It is significant that in every operating rationing division, the procedures writer has appeared, doing much the same kind of work in each division ). 7. Rationales of Actions Taken. Along with the Department's annotation system has gone the proposition that nothing should go into annotations but brief and terse commands or statements. However, a good procedures writer knows that occasionally a situation or operation becomes so complex that he cannot be sure of getting the right result with a sheer listing of operations or duties. In this situation, he has only one recourse. He carefully describes the objective to be obtained so that even if the steps of the operation became too complex to be readily followed, an intelligent person can deduce from the objective the necessary steps which must lead up to it. The annotation (or legal) system is hostile to this approach. Furthermore, a good procedures man knows that an explanation of why an action is taken, rather than a sheer command, gives a greater degree of certainty that the instruction will be carried out. Such explanations do not appear in annotated (legal) systems. THE LOCAL BOARD LOOSELEAF

SERVICE

T h e local board service was a great help to everyone in O P A . It was becoming almost impossible to keep track of the many board letters. T h e

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problem which the looseleaf solved as far as the instructions were concerned was the reference problem. T o refer back to something under the letter system was almost impossible because the proper letter would not easily be found and, even if found, had probably been changed by some other unknown letter. As for the regulations, they were meaningless without a looseleaf. T h e board looseleaf brought permanent organization of material, and, once a person became familiar with that organization, he could look up any point he wanted to. T h e looseleaf service was a reference book. It was not an unmixed blessing. O n e of the chief difficulties with the looseleaf was that a person could not from it follow the changes in the program. T h e changes appeared as a group of page replacements. On each of these new pages to be inserted in place of old pages in the looseleaf was one or more new words, sentences, or paragraphs. Altogether they added up to something, but what? For practical purposes, it is impossible to reconstruct a complete story from a group of page replacements to a looseleaf. T h e device used to solve this problem was a "newsletter" which appeared with each set of page replacements (called a "supplement"). T h e newsletter carried a brief reference to the change and the new sections or sentences. As the addendum to the office instruction on annotations stated: " T h e main function of the newsletter is to point out changes on new material and should rarely be more than 2 to 5 lines long [sic]." T h e instruction writers were not allowed to describe the change in the newsletter. A typical newsletter is the following: Transportation of School Children.—Preferred mileage may be allowed under some circumstances. (P. 270.10.) All the board service newsletter did was to warn boards that a change had been made, which they knew by virtue of receiving the new pages, and to tell them that the change involved some specified subject. T h e problem of reconstructing the change from the page replacements was not in any way solved by the newsletter. Some changes affected dozens of sections or subsections in the regulations. T h e average change affected over four sections. This was not the whole story, however. T h e sections affected by a change were laced to other sections through cross references, so that to determine the content of a change in the looseleaf involved a person in intricate legal research. Although some instruction writers tried to use the newsletter for more ambitious purposes, it never got beyond being a warning of change taking place, or a device to give boards a short pep talk or to explain a few of the reasons behind a change. This latter development came about be-

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cause of a more progressive attitude on the part of the persons in the departmental office responsible for the looseleaf in the latter half of rationing. The original guardians of the looseleaf did not want the newsletter to go beyond "2 to 5 lines," and they wanted it to be "short and to the point." Coupled with the board's problem of finding out what any supplement did, what changes it made, was the problem of insufficient copies of the service at the board. With some exceptions in large boards, each board received three or four copies of the looseleaf service. This number of copies did not begin to do the job of installing an important program change. Anywhere from a few to several dozen people would have to use those copies in turn. They could not take them home to study them. The distribution of the board looseleaf service, like everything else about it, emphasized the point that it was a reference volume. Because of this double problem of finding out about a change in the service and insufficient copies of the services to go around, specialized rationing personnel in the OPA district offices prepared mimeographed bulletins on all important program changes and sent them in large quantities to the boards. These bulletins described the changes as the ninety-three district offices interpreted them and sometimes advised the boards how they ought to proceed or operate under the changes. District offices were kept posted on program changes by bulletins from the specialized rationing personnel in the OPA regional offices, and these bulletins helped them interpret the changes in the looseleaf. Regional personnel received information about the changes by teletype and telephone from Washington, by visits from Washington field travelers and especially by memoranda from Washington branch chiefs or field relations sections. These various sources of information tended to converge in the district office bulletins. Without these bulletins, local boards would have learned very little about rationing. Some Washington officials were surprised about the number of district office bulletins which only duplicated material in the looseleaf. These bulletins were necessary because they were the only way that a board could find out all about a program change contained in a supplement to the looseleaf. These bulletins installed the changes. The looseleaf was a reference system. What was needed in addition to the board looseleaf was an installational instruction to present each change to the board as a unit. Each change should have been carefully described in a board letter as well as in the looseleaf. The letters should have given the boards any necessary background information, explained the reasons for the change and supplied a complete operational instruction, "in one place," on board

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activity under the change. The letters should have been distributed in sufficient quantity to allow all interested persons at the board to have a copy to study and to take home if necessary. Many board members spent only a part of their time at the boards. If they had had such a letter on each change to take to their offices with them, they could have become more proficient in their programs. Processing clerks could have relied entirely on these letters until they became proficient in the new procedures or operations. Thereafter, doubtful or unusual points could have been looked up in the looseleaf. "Installational unity" was needed as well as reference value. Such board letters would have emphasized the need for careful instruction writing, lost sight of when the annotation system was adopted. Procedural analysis could still have served as a corrective to the nonprocedural policy planning of the "higher officials," which often took place in a procedural vacuum. Persons trained or inspired to think of rationing plans in terms of field operations or procedures would have been forced to analyze critically the rationing plans in the process of writing the installational letters. This critical analysis inevitably would have had the effect of improving the rationing plans. Thus, the use of a complete instruction letter in conjunction with the looseleaf would not only have corrected an instructional deficiency of a looseleaf. It would also have tended to correct a deficiency in the Washington planning process brought about by the adoption of the annotation system —i.e., the fact that the annotation system fixed with the drafting attorneys the function of detailed implementation of plans. Some rationing instruction writers recognized the need for complete board instruction letters in addition to and duplicating the looseleaf and tried to persuade the rationing department to permit such letters. However, the annotations tradition, with its strong antipathy towards repetition or duplication and its myth of having "everything in one place," proved too strong. Below is reproduced a memorandum from a former instruction writer to the responsible departmental official urging the adoption of an installational letter along these lines. This memorandum bears out most of the foregoing discussion. MEMORANDUM TO: FROM: SUBJECT: Board Letter The last issue of the Mileage Conservation Letter was sent direct to local Boards. This was done because everyone, apparently, agreed that the Looseleaf was not an effectiv e selling medium. Perhaps, if it had a wider circulation,

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COMMUNICATION

it could become a good selling medium. However, it certainly docs not now have a wide enough circulation to be used for this purpose. Board members cannot take it home or to their offices. A letter or bulletin can be sent in sufficient quantities for them to take out of the board. I understand that many District Offices, at the request of the Board members, mail bulletins directly to the Board members' offices. All of this argues that for the purpose of selling or promoting programs in the boards, a board letter is needed in addition to the Loose-leaf. There is another definite need which the Loose-leaf doesn't satisfy. That is the need to present each program change of any significance as a single, complete story which tells why we made the change, what it is, and, in general, what the board has to do about it. Any doubts or questions in the reader's mind, or any point he forgets, can then be referred to the reference manual— the Loose-leaf. As you know, Loose-leaf instructions do not present a change as a complete story but as a series of page replacements, each carrying some of the new and some of the old. N o one can piece the complete story together from those page replacements without the greatest difficulty. Frequently the new pages are inserted without the Board members ever becoming aware of the change. T o overcome this obvious and well-known difficulty with the Loose-lear, District Offices prepare bulletins describing the complete change with more or less accuracy. For these reasons I would again like to propose to you that we recapture the advantages of the old board letter while at the same time retaining the reference facilities of the Loose-leaf. W e could have a Departmental board letter, issued twice a month, in which important program changes were described and any necessary selling or promotion could be achieved. Particularly is this important with V - E Day upon us and the possible exodus of Board members and clerks. O n e further problem with relation to the board looseleaf deserves mention. T h i s was the problem of keeping the looseleafs up-to-date and accurate by the prompt and correct insertion of the new pages and the discarding of the old ones. O n c e a looseleaf became inaccurate because of failure to insert new pages, it was almost impossible to correct it. T h e instructions accompanying a supplement told what pages were to be taken out and what added. If the pages to be replaced had never been inserted in the first place, a person could not be sure if the new pages were properly related to all other material in the looseleaf. Spot checks of board looseleafs taken early in 1945 indicated that most of them were not accurate or up-to-date. T h e only solution to this problem appears to b e careful education of persons whose function it is to make the page replacements, and also careful supervision of them. Generally speaking, little work along these lines was done by the rationing department. Clerks and stenographers were not sufficiently impressed with the importance of keeping looseleafs up-to-date, or properly instructed on

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how to do this. T h e result was that probably few of the board looseleafs were accurate. LEGAL ATTITUDES REGARDING INSTRUCTIONS

NON-LEGAL

M o s t rationing attorneys' attitude toward non-legal instructions was one of slight contempt. T o the attorneys, the regulation was T h e Book, and T h e Book was the only source of accurate and trustworthy answers to questions about rationing. One example will illustrate this attitude. W h e n a dealer transferred coupons to his supplier to replenish his stock, he was required to paste them on a specially prepared gummed sheet. A uniform gummed sheet for both gasoline and fuel oil was provided. This gummed sheet bore the statement in large letters, " A L L C O U P O N S O N T H I S S H E E T M U S T B E I D E N T I C A L . " This expression did not satisfy the fuel oil drafting attorneys, who did not think that "identical" had any specific meaning. (They raised such questions as what if the safety paper of two coupons came from different mills?) Consequently, when drafting the fuel oil regulations they provided that all coupons on a gummed sheet must be "of the same class, validity period, gallonage value, and from the same zone." (Section 1 3 9 4 . 5 7 2 1 . ) In August of 1944, two years later, this provision was amended to provide that "only identical coupons shall be attached to any single s h e e t . " 1 2 T h e rationale to the amendment stated that the amendment was issued "to remove any doubt as to the requirements." There never had been "any doubt as to the requirements" in anybody's mind except the attorneys, for the gummed sheet stated very clearly that all coupons on the sheet "must be identical." However, the attorneys did not recognize that instruction on the gummed sheet. T h e y only recognized the instruction in T h e Book—the regulations, and considered it only as being able to dispel "any doubt as to the requirements." In line with their slightly contemptuous attitude toward non-legal instructions, many attorneys maintained that board (and other field office) instructions were not interpretations of the regulations and were not, therefore, binding on boards. Furthermore, the attorneys informed the field through interpretations that the board instructions were not binding on boards and occasionally urged the field to disregard the instructions. An illustration is the dual purpose stove provision in fuel oil rationing. T h e regulations allowed a cooking ration equal to "the amount of fuel oil needed for such purpose" but not to exceed twenty gallons a month for a family of less than six persons or twenty-four gallons a month

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for a family of six or seven persons." W h e n the cook stove was also used for heating and a heating ration issued for it, there was very little need for a cooking ration. T h e heating ration would suffice. Heating experts in the fuel rationing division said that a person who received a heating ration for use in a double purpose stove would never need more than an additional ten gallons a month for cooking. Consequently, boards were told in the fuel oil guide never to issue more than ten gallons per month as a cooking ration for use in a double purpose stove. W h e n called upon to settle the law with regard to double purpose stoves, the fuel oil rationing attorneys issued the following interpretation which set aside the board instruction as an interpretation of the "amount of fuel oil needed." Section 1 3 9 4 . 5 3 5 3 ( b ) . Use of Ceiling Allowance as a Guide. Experience indicates that the maximum quantity of oil normally required for cooking purposes by dual or triple purpose burners is ten gallons per month. Boards may refer to this experience in handling applications for rations for such burners and, where actually required, an amount in excess of ten gallons per month, but not exceeding the ceiling specified in Section 1 3 9 4 . 5 3 5 3 ( b ) , may be allowed. T h e outstanding case on the question of whether the board instruction was an interpretation of the regulations was the Jones appeal. Jones applied for a fuel oil hardship ration on March 23, 1943. T h e regulations allowed hardship rations to be issued to any person whose ration for the balance of the year was insufficient to meet his "minimum requirements." T h e amount of the ration was to be the amount necessary to meet the applicant's "minimum needs." T h e board instruction provided a table for determining mathematically whether an applicant was eligible for a hardship ration and how much it would be (see above, page 364). Jones was not eligible under the test provided in the board instruction. In fact, he had a little more oil left than the ration formula allowed for the balance of the heating year. T h e board denied his application on the basis of the board instruction. H e appealed, and both the O P A district and regional offices upheld the board decision, also on the basis of the board instruction. Some elements of the case appealed to the sympathy of the Washington attorneys, and, when the appeal came to Washington, the fuel oil attorneys quickly decided to reverse the field offices. T h e chief fuel oil attorney insisted that the board had not decided the question of whether Jones had enough oil left to meet his "minimum requirements"; that the board had merely relied upon the arbitrary test of the fuel oil guide and failed to determine the applicant's eligibility. H e insisted that if Jones

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needed more than 100 per cent of the amount allowed by the fuel oil ration formula in order to meet his "minimum requirements" he had a right to it under the hardship provision. He insisted that the boards were not bound by the instructions in the fuel oil guide and that the case should be remanded to the board for correct action. The chief fuel oil attorney was at first supported by the legal hierarchy. However, the issue was so hotly contested that the legal hierarchy decided to back down. The field was upheld and the Jones appeal denied. The decision was based, however, not on the fuel oil guide, but on the fact that Jones had enough oil left on March 23, 1943, to bum oil for the rest of the heating year at a rate faster than he had burnt it up until March 23. Jones got a final decision on his appeal on October 15, 1943, seven months after he was denied a hardship ration and after he had received his full annual ration for the second heating year. The fact that Jones was still alive is pretty good evidence that his ration had not sunk below his "minimum requirements." Because of the occasional aspersions cast by the fuel rationing attorneys against the fuel oil guide, the fact that interpretations conflicting with the guide were issued, the fact that boards needed to know about some interpretations if the interpretations were to have any effect, and the fact that some interpretations had impossible procedural results, the fuel procedures writers insisted upon and got the right of final review of all fuel rationing interpretations. If they disagreed with the attorneys as to an interpretation, and thought the issue important enough, they usually got the ration order amended in order to avoid the interpretation. Although some attorneys regarded instructions as interpretations of the regulations, most did not so regard them and maintained this attitude until the very end. In March of 1945, the chief rationing attorneys got the deputy administrator to issue an amendment (No. 1 1 ) to General Ration Order 8 (general prohibitions and penalties) which forbade any OPA official or employee to make any exceptions to any rationing regulation without the consent of the deputy administrator. The memorandum to the field announcing this amendment, drafted by the attorneys, said the amendment was issued "to emphasize to all concerned the importance of applying the regulations uniformly and in accordance with interpretations properly issued [My italics]." "Interpretations properly issued" were the "official interpretations." This memorandum to the field said nothing about applying the regulations in accordance with annotations or other field instructions. Even at the end, the regulations and what the attorneys formally said they meant were the only binding forces as far as the attorneys were concerned.

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T h e attorneys' attitude toward the non-legal instruction was probably based on the notion that the "will of the administrator" flowed through only one channel of communication—the legal channel. Only attorneys could interpret the "will of the administrator." W i t h such a conception, it is a little difficult to rationalize the position of the non-legal officials in rationing. Actually, the non-legal instructions were also the "will of the administrator," and they had to be obeyed by the field under threat of administrative discipline. It would be a strange phenomenon to see an administrative official trying to prove in court that he did not have to obey the instructions of his boss. Whether the attorneys were willing to accept the proposition that the administrator could will an "unlawf u l " result is unknown. They tended, however, to conceptualize the administrator as British jurists conceptualize the King: " t h e King can do no wrong." HOW THE PUBLIC WAS

INSTRUCTED

T h e general public was not informed of its rights and duties under rationing by legal documents. Most people have never seen or even heard of any one of the many rationing legal documents. E v e n if everyone had received all rationing legal documents, most people would not have been instructed thereby. An amendment that simply changed a plant transportation committee's certification by adding the words "exclusive of the automobiles of other workers," would certainly not tell anyone that all members of a car club had been made eligible for tires rather than just the driver. An amendment that stated, "Section 1 3 9 4 . 5 0 5 1 ( b ) is amended by deleting therefrom the phrase ' 1 3 9 4 . 5 3 1 0 ' " would not tell very many people in the Pacific Northwest that they had been made eligible for fuel oil hardship rations. Most of the great rationing programs and program changes would never have come off if they had depended only upon legal documents for their communication and installation. T h e public was informed in a great variety of ways, but not by the legal documents. It is not intended here to describe the tremendous information program of O P A . Such a description would go beyond the scopc of this volume. However, since the inclusion of most of the material in the rationing regulations was justified as necessary to notify the public, and since this notification was probably not a required "legal notice" for any of the material except rules imposing enforceable duties, it is important that the reader realize that the public was actually notified in a great variety of ways, none of them legal ways. Consequently, we shall merely

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suggest the manifold ways by which the public was actually informed. There was almost as much rationing educational activity as there was rationing planning activity. In the first place, all rationing changes were accompanied by a news story which was released to the national wire services in Washington, and which appeared, therefore, in newspapers all over the country about three days before the change was effective. Local boards and district offices would release these stories or local versions of them over and over in the local newspapers. In addition, if any part of a program seemed to be poorly understood, information specialists in the district offices prepared further corrective stories for release in local newspapers. Many rationing programs developed an "industry letter" or "bulletin" which was mailed out once or twice a month to all interested members of the industry, or anyone else. Any person who wished his name put on the mailing lists could have it put thereon. Trade associations received the industry letters and reproduced them for distribution to their members. T h e letters were reproduced quickly by a photo-offset process. Folding and addressing were by machines and took only a day or so. Most persons on the mailing lists received their copies of the industry letter within ten days of the time the letter was sent to the printer. T h e industry letters contained summaries of all program changes affecting the industry, explanations of the reasons for the changes, discussions of the supply outlook, and many suggestions on how to operate effectively under the rationing rules. Occasionally, one issue of the letter would be used to summarize the industry's duties under rationing. Such an issue then became a check list of duties which many dealers posted in their offices for the information of themselves and their employees. Efforts were made to make the industry letter interesting, and it was set up with an attractive format and easy-to-read print. Some rationing branches were more backward than others in developing industry letters, and a few never developed them. Late in the rationing period, the principal impetus for developing industry letters, and other educational devices such as district industry advisory councils, came from the enforcement attorneys, who had found it much easier to win cases if the defendant could not say that he had not known about the duty violated. OPA had a separate information department charged with the duty of keeping the public informed about OPA programs. A description of the duties of some of the units of this department will afford some insight into the means by which the public was actually informed about ration-

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ing. The following quotations are from the OPA manual of organization and procedures. T h e community service branch of the field division was responsible for: Planning programs for community service members in local boards in order to develop effective community understanding and participation. Assisting field offices in the execution of community service programs. T h e Radio branch of the editorial division was responsible for: Preparing all radio scripts to be used in national broadcasts or distributed to field offices for regional and district use. Arranging radio broadcasts for OPA employees. T h e media branch of the editorial division was responsible for: Preparing materials, other than press releases and radio scripts, issued by the Information Department, including advertisement layouts, posters, and other graphics, pamphlets, slide films, and other visual materials to inform the general public on OPA programs to magazines, newsreels, motion pictures, and national advertisers. T h e trade relations branch of the editorial division was responsible for: Preparing summary reports of business press comments on OPA actions, correcting misunderstandings either by letter or personal contact with the editor. Preparing special trade information for business press and trade associations in specific commodity fields. Preparing feature articles and filling requests for special information for individual trade publications. T h e group services branch of the group and educational services division was responsible for: Establishing and maintaining working relations with organized groups in order to acquaint them with OPA policies and programs. Supplying informational materials on OPA policies, programs, and operations to organized groups. T h e educational services branch of this division was responsible for: Establishing and maintaining working relationships with officials of colleges and educational associations in order to acquaint them with OPA policies and programs. Supplying informational and educational materials on OPA policies, programs, and operations to educational institutions and associations. In addition to the various educational devices and activities suggested above, some rationing branches had national industry advisory committees and also local industry committees for each O P A district office. These committees were not only aids in planning but were also a channel of communication to the industry. Important program changes were carefully explained to the industry committees, and the committee members then helped to explain these changes to other members of the in-

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dustry. Particularly important in this respect were the large distributors, who carried the main burden of educating the dealers who had accounts with them. T h e way in which the public was actually informed about the rationing programs can be illustrated by a brief outline of the installation of the debiting program in gasoline. T h e debiting program was an administrative solution of the illegal coupon problem (counterfeiting, stolen coupons, etc.). Coupons deposited in ration bank accounts were examined by experts in O P A "verification centers." W h e n bad coupons were discovered, the bank account of the distributor who had deposited them was debited. He then had to collect valid coupons from the person who had given him the invalid ones. Eventually the first dealer who had accepted the illegal coupons was left "holding the bag"; his inventory was permanently reduced by the amount of the debit. T h e debiting program practically stamped out counterfeiting because no dealer would buy the counterfeit coupons. T h e gasoline debiting program was installed as follows : 1 . Meetings were held with the gasoline distributors at all O P A regional and district offices to explain how the debiting program worked, to explain the reasons for it, and to secure their cooperation. 2. T h e discussions at these meetings were summarized and copies of the summaries sent to all gasoline distributors whether or not they were present at the meetings. Copies of the summaries were also sent to local newspapers. A form letter explaining the program was also sent to all distributors for them to reproduce and send to all their dealer accounts. T h e distributors were also to educate their tank truck drivers so that they could explain the program to dealers. T h e debiting program did not go into effect for two weeks after the meetings in order to allow this further educational activity to take place. 3. District office representatives got on the radio to explain to their communities the need for endorsement of coupons (consumers were required to endorse their license numbers on coupons), the prohibition against using loose or detached coupons, and, in general, the consumer's part in the program. 4. T h e whole story of the debiting program and the planned enforcement drive was given to the local newspapers with emphasis on the consumer's responsibilities (such as endorsement of coupons; an unendorsed coupon was an illegal coupon and resulted in a debit). 5. A big poster explaining why dealers had to insist upon endorsements, etc., was prepared in Washington for use in service stations and

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supplies sent to distributors for transmission to their dealer accounts. Supplies of the poster were also sent to plant transportation committees and to local boards. 6. T h e Washington office sent a graphic advertisement to newspapers all over the country, which explained the need for endorsement of coupons, etc. 7. A fact sheet on the gasoline black market and the relation of the endorsement requirement to the black market was sent to all the principal magazines, and articles on the subject were encouraged. Copies of this fact sheet were sent to O P A regional and district offices. 8. Movie shorts and radio programs about the black market, endorsements, debiting, and the enforcement drive were prepared. T h e foregoing very incomplete discussion of how the public was actually informed about the rationing programs brings out one fact emphatically. T h e rationing department, whatever may be the theory of the legal document, did not rely upon the legal document as a means of informing the public about rationing. Consequently, the inclusion of material in the regulations on the ground of informing, instructing, or notifying the public was a bit of extreme irrationalism. This statement does not apply, of course, to the inclusion of material in the regulations on the ground that the public had a legally enforceable right to legal notice. Usually, when the attorneys spoke of the "right" to be informed, however, they meant a moral right. T h e "legal right" was satisfied with "constructive notice" in the Federal Register. O n the other hand, if there was a "moral right" to be informed, surely it could be satisfied only when a person was actually informed, and people were actually informed about rationing by means other than the legal documents.

Chapter 16. SUMMARY: THE PLACE OF THE LEGAL DOCUMENT WHAT IS the proper place of the legal document in administration? T h e point of departure for a proper evaluation of the legal document in administration is the clear understanding that the legal document is not and cannot be an instruction to persons other than attorneys. Not only did the rationing legal documents have an extremely limited circulation, but legal drafting mechanics and attitudes toward the legal documents made them almost useless as instructions. Even if the rationing legal documents had been very well written and organized, as few of them were, and widely circulated, they would not have been good instructions; for certain purposes or functions of the legal documents militated against their efficiency as instructions. Finally, as a matter of fact, the public was informed about rationing by means other than the legal documents. "Notice" through the Federal Register was a fiction. Although the legal document should not be regarded as an instruction, it can and does perform certain functions. Under the terms of the Federal Register Act, if an agency definitely wishes to impose duties enforceable at law (i.e., by courts), it must define those duties in the legal document (the "regulations," the documents filed with the Federal Register). In rationing, the principal duties which the planners desired to have the sanction of the law were industry duties regarding registration, record-keeping, reporting, and transfers of the rationed commodities. These duties were carefully and completely described in the rationing regulations. On the other hand, many of the duties imposed on consumers the rationing department did not intend to be sanctioned by the law, and many such duties were never enforced in any way. Many of the consumer duties, therefore, could probably have been omitted from the rationing regulations. The requirements of the Federal Register Act, however, do not indicate that all the privileges or expectations of the public had to be described in the regulations. Certainly, the Federal Register Act (or

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COMMUNICATION

any other act) did not require a description of the coupons which a successful applicant would receive to be included in the regulations, nor did it require a duplication of questions on a form, or board filing procedures, or dozens of other things. It is doubtful that there was a "right" to be informed of anything except legally sanctioned duties. Some of the very most important rationing privileges were not described in the regulations. Many of the conditions which certain applicants had to meet before they could get a ration were not described in the regulations, although sometimes the regulations would acknowledge this omission. Attorneys justified including much of this unrequired material on the basis of public relations. However, including material in the regulations solely for public relations purposes assumes that the legal document is a means of informing the public. Such is not so, as we have seen. This does not mean, of course, that the public should not be informed about the conditions of eligibility and about what they can expect to receive under a program, but rather that means other than the legal documents are and must be used to do this. On the other hand, since it was decided, and rightly so, to allow applicants to appeal from decisions of a board, it was necessary to have a clearcut and recognized statement of the limits to the boards' discretion in various cases. In other words, it was necessary to have a clear-cut and recognized statement of the conditions which entitled a person to a ration so that the appellate authorities could decide, on the basis of the facts, whether a board had decided correctly. This clear-cut and recognized statement of the conditions of eligibility could have been incorporated in an instruction. However, there was no good reason for not including it in the regulations along with the description of the public's duties. Both served much the same purpose. When a dispute arose in court (or in a suspension hearing) over duties or in OPA over a consumer's expectations, judges and OPA officials alike needed an authoritative description of the duties or expectations to turn to so that the dispute could be settled by reference to the written word and the stated facts of the case. Therefore, another test to govern the inclusion of materials in the rationing legal documents (and exclusion therefrom) should have been the type of board decision from which Washington wished to allow an appeal and the minimum statement of the conditions needed to make review on appeal possible. If this test had been applied to the drafting of rationing legal documents, a great deal of the material in those documents would have been excluded therefrom. Obviously, Washington did not want to allow an appeal from a board action giving a fuel oil consumer one type of coupon instead of another. There-

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421

fore, the descriptions of the kinds of ration currency to be issued to applicants in the various cases should have been omitted. If the two tests described above had been used in designing the legal documents, much of the material uselessly included in the rationing regulations would have been excluded from them. Since O P A never intended to take legal action to enforce the duties imposed upon the field staff (including the boards), all of the great amount of field instruction included in the regulations would have been omitted. Since it is perfectly clear that the public was actually instructed about rationing by means other than the legal documents, the great amount of material of a purely public informational character should have been omitted from the regulations. Material which had only informational value included descriptions of forms, instructions about where to obtain and how to fill out forms, and all other matters pertaining to the procedures that applicants were to follow to get rations. If such tests had been applied to the drafting of the rationing regulations, those regulations would have been short, much easier to read, and would have needed amendment much less often. On the other hand, the applicants actually would have received as much or more protection since the rationing officials would have consciously asked themselves: ( 1 ) what duties do we want to enforce in court (or by suspension hearings); and (2) what kinds of board (or field office) decisions do we want to make appealable and what statements of conditions do we need to make those decisions appealable to the extent desired? T h e legal documents were peculiarly under control of the attorneys because of their drafting and interpretive monopolies and because of a sort of superstitious awe with which the non-attorneys regarded the legal documents. Therefore, including matters in the regulations which did not relate to court behavior or behavior of legal counsel enlarged the influence of the O P A attorneys as a class far beyond the area of legal advice and services. Since attorneys are only peculiar with regard to legal services, enlarging their influence as a class beyond the area of legal services had no rational basis whatsoever. Thus, reducing the regulations by reference to the two principles outlined above would have meant reducing the influence of the attorneys to an area of service where their influence as a class could be justified. Since the regulations, under the principles outlined above, would be simply the means of communciating their part in the plans to other attorneys (OPA attorneys, legal counsel outside of OPA, and judges), the emphasis should be on accuracy of statement rather than readability. T h a t is not to say that the regulations should deliberately be made difficult to read. However, it may be that

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THE DOCUMENTS OF COMMUNICATION

our legal system as it now exists depends to a certain extent upon the obscurity of legal communication. For the persons who administer the rules there should be a complete and well-developed system of instruction by non-legal documents. These non-legal instructions should, of course, be in harmony with the regulations, and the regulations should be available for the relatively few legal cases (for rationing, this includes suspension hearings) and for administrative appeals. T h e art of instruction writing should be empirically developed. Indeed, instruction writing is a substantial part of a field of administration which, though neglected, is every bit as important as the fields of personnel management and organization theory. This field is the field of communication. T o overlook this field of administration is like equipping houses with gas cooking and heating stoves but neglecting to lay the gas mains. Administrative plans are only theories or dreams until they are communicated to those who will apply them. Communicating the plans to those who will apply them is just as important as making the plans. They are two parts of one process. In addition to informing those who will apply the plans, those to whom the plans are applied must also be informed. Educating the public is a highly developed art in this country. It is much more developed than either instruction writing or regulation drafting. T h a t is one reason why the notion that the legal document could actually compete in this field appeared so foolish. Educating the public is part of the field of administrative communication. As such, it is an important administrative study and will become increasingly important as time goes on. In conclusion, another possible role for the legal document in administration should be mentioned. The legal document might be used as a single official record of all decisions affecting a single program or regulatory system. Every rule, plan, or decision about the program could be included in the regulations. Any questions about any past decision or planning, substantive or procedural, affecting either the field or the public, could then be definitively answered by reference to one unimpeachable source—the regulations, the "Order." This notion really regards the legal document as a substitute for a good filing system. However, it might be very handy to have such a "Book of the Program." Such a Book of the Program need not be a legal document published in the Federal Register. It could be an administrative document just as well. Before such a Book of the Program ought to be regarded as a legal document and filed with the Federal Register, certain conditions should be met. First, there should not be in the agency a separate legal hierarchy charged with control of the legal documents, as there was in OPA.

SUMMARY:

THE PLACE OF THE LEGAL DOCUMENT

423

Second, there must be no unusual formalities or difficulties in changing the legal documents, as there was in O P A . Third, the legal Book of the Program must not be regarded as an instruction (as it was in O P A ) , but only as a single record of all decisions for purposes of reference. Instructions to the field must be written as though such a document did not exist. Finally, it is likely that certain inherited superstitions with regard to the law would inevitably attach to any document called a "regulation" or an "Order," and this fact would introduce a considerable degree of inflexibility and formalism into a program which was completely described in a legal Book of the Program. W i t h these conditions and qualifications satisfied, there would be no objection to publishing a Book of the Program, all field instructions, copies of all correspondence, records of all telephone calls, and even pictures of all the officials in the Federal Register.

Part IV.

Rationing and Administrative Theory Chapter 17.

CONCLUSION

HAVING COMPLETED a description of the rationing planning process, it will now be well to state (or restate) the most general conclusions that can be drawn from these data. More accurately, the following discussion represents the writer's opinion as to the implications of this study for administrative theory. There is not space here to "prove" what some of the prevailing concepts of administrative theory are, and some readers may disagree with the writer's conception of them. Nevertheless, the assumption adopted here is that most students of administration would agree, by and large, that the writer's statement of the concepts to be discussed here reasonably reflect traditional (and current) administrative theory (although the present period is one of transition and ferment in which many of these concepts are in the process of being reformulated). R E G U L A T I O N AS A P R O B L E M IN S O C I A L PSYCHOLOGY Whether the people engaged in regulation realize it or not, regulation is an adventure in applied social psychology. T h e choice between alternatives presented to the planners, be they legislative or administrative (and, one can also say, judicial) officials, is made on the basis of predictions as to the consequences of each alternative—consequences in human behavior. That alternative is chosen which is expected to bring about the desired changes in human behavior. In other words, regulatory planners must predict human reactions to alternative stimuli. Lack of a full appreciation of the sociological character of regulation (or, for that matter, of government) has resulted, or at least did in rationing, in an overemphasis on the legal technique of regulation. Elaborate statements of duties are contrived, all held together solely by the logic of the regulator's purpose, and then it is expected that the behaviors to be regulated will suddenly correspond to these statements of duties. One rules with a clause or a phrase. This "light switch" theory

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of regulation is based both on ignorance of the facts of human behavior in society and on contempt for them. That is, the legalistic approach is not sociologically informed because law is not taught as an area of sociological inquiry; and it is infused with an abundance of moral notions to the effect that man ought to obey the legally authorized regulations of his government. The result is a "be it enacted" attitude that often has little more relation to successful regulation than the alchemist's desire had to the creation of gold out of lead. T o many people the notion of regulation as applied social psychology is vaguely objectionable because it smacks of manipulation. One should not use knowledge of human behavior, these people feel, to induce other people to behave in some desired way. Instead, they say, "If you just tell people what you want in simple understandable terms they will do it." However, if this proposition is true—if people actually do what you want when you tell them in simple understandable terms—then the person who acts on this proposition is manipulating; he is using a proposition about human behavior; he is supplying a stimulus to elicit a desired response. Perhaps those who shudder at the notion of regulation as applied social psychology because it is too manipulative might solve their moral problem by a more careful analysis of the kinds of situations in which manipulation occurs. In the opinion of the author, manipulation is objectionable in the situation where one person or group uses information about the behavior of others to induce them to behave to the sole or chief advantage of the first person or group—the manipulator. Although manipulation so practiced is very common in the inter-personal, every day experiences of most people (for example, "If you learn to call the waitress by name you get better service"), when practiced on groups of people by and for the benefit of one or a few it is morally repulsive to many of us. Thus, a theory of administration which directs its attention to advising "management" how to evoke from employees behavior desired by it strikes many thoughtful people as both morally and scientifically unsound (scientifically, because it assumes the "manager" is an independent variable in the organization context who acts upon but is not himself acted upon). Looking at the matter in this way, we can admit that government is to some extent the governing of other people's behavior (i.e., manipulation), but that the only kind of government that is justified is government that seeks the interest of all. Thus far the point has been made that regulation is applied social psychology and that therefore the chief knowledge required by regulatory planners is knowledge of social psychology. To argue this point, how-

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THEORY

ever, is not to argue that no other knowledge is relevant. Also needed is specific information about the current practices of the people who are to be regulated. In most discussions of the subject this knowledge of current practices, business or otherwise, is stressed as the most important and the most difficult to get. T h e need for knowledge of social psychology is hardly recognized at all. As a result, "practical experience" is overemphasized at times to the point of absurdity (OPA was criticized in Congress for not having a butcher run meat rationing), the "social psychologists" who guide the regulatory process are chiefly attorneys, and consequently the legal technique of regulation tends to become the principal one. Rationing experience would indicate that too much attention has been given to the need for, and the difficulty of getting, this specific, practical knowledge of current practices. In the first place, the practical, experienced representative from business, for example, seldom had the needed knowledge of the whole industry. It was easier to acquire this national picture from the vantage point of a position in the Washington bureaucracy. In the second place, the necessary knowledge of current practices was not extensive nor difficult to acquire. It was possible for intelligent planning officials to obtain in a few months a reasonably accurate personal acquaintance with the practices regulated. Finally, any gaps were easily filled by various industry consultative arrangements. In the final analysis, it proved easier for the rationing officials to learn about industry practices than it was for the industry to learn about rationing technique. RATIONING E X P E R I E N C E AND T H E C O N C E P T S O F ADMINISTRATION Overemphasis on Organizational

Form

Although the situation is changing, current administrative theory stresses the external aspect of the administrative process—organizational form—and pays little attention to the internal aspect—the psychology of decision-making. T h e psychological factors affecting decisions are often regarded as constants, or as irrelevant. For example, it is stated that placing all activities using expensive machinery in one unit will reduce operating costs. However, operating costs will not be lowered unless the personnel of the centralized unit are motivated to reduce them. It may happen that placing all these activities in a single unit stimulates the ambitions of the new unit's personnel to acquire more personnel, more machinery or more expensive machinery, more functions, and more

CONCLUSION

427

authority, with the net result that the organization's operating costs increase. The influence of the external aspect, form, must always be assessed by analyzing its inter-relation with the internal or psychological aspect. The two must interact before form has any effect. In evaluating the relative influence of each, the psychology of employees or officers will always be tremendously more important than the formal arrangements or relations. In other words, the influences on a person's behavior that come from pre-organizational experience are always much greater than the influences the formal organization itself is able to bring to bear on his behavior. Formal arrangements significantly influenced the rationing rules in two ways. In the first place, the fact that the rationing branches were organized almost entirely for planning, and other functions such as field supervision gradually withdrawn from them, resulted in a continuous deluge of amendments to the ration orders. Right up to the end of rationing, the planners were making changes in programs at the rate of four or five a week per program. They had to change the programs if they were to keep busy. Their function was to plan. They had almost nothing else to do. Since the field officers, especially board members, soon fell behind, much of this planning activity, especially toward the end, had no ultimate effect. The second way in which the external aspect interacted with the internal to influence the rationing rules was in the allocation of the drafting function. The importance of writing in complete thinking has not been sufficiently recognized. In attempting to reduce general verbal plans and objectives, developed in planning meetings, to a complete written statement of a plan, drafters influenced the result in several ways. First, they often discovered that the plan had not been thought through; it had "bugs" in it. Second, they frequently found that the verbalized objective could not be implemented; it had to be changed. Third, they sometimes discovered that it was in conflict with existing program provisions that no one had remembered in the planning meeting. Finally, and most important, they implemented the general plan— they filled in the details. That is, they completed the thinking or decision-making or planning process themselves, individually, in the privacy of the drafting function. Since the drafters did a considerable part of the planning by themselves, their attitudes became extremely important influences on the rationing rules. Thus, a formal arrangement that sent the general verbalized plans from planning meetings to attorneys for drafting assured

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that legal attitudes would have a profound effect on the rales; and they did. In all rationing divisions except one, attorneys completed the planning process through the drafting function, and a great many of the regulatory propositions underlying the programs were legalistic rather than sociological or psychological. Beyond these two substantial organizational influences on the rationing rules, the influence of formal organization was vague and impossible to assess. The Nature

of

Authority

The idea of authority as being some mystical power located "above" and handed down by delegation still seems to be a dominant idea in administrative theory, both public and private. The ghost of the absolute king, in the respectable disguise of the theory of sovereignty, still haunts us. If authority is to be a useful concept in the description of behavior in organizations, it must be operationally defined. So defined, authority is the correlative of the disposition to obey; it is the ability to elicit obedience. It can be understood only by studying the psychology of obedience. In rationing it would probably be accurate to say that "high" officials obeyed "lower" officials much more than the reverse. Not only did the higher officials realize that they could not order lower officials to violate their consciences, but if they tried to do so they were usually disobeyed. Attempts of higher officials to get lower officials to change points prices were almost always failures. Likewise, attempts to get lower officials to alter eligibility rulings were seldom successful. On the other hand, when lower officials insisted that something had to be done higher officials usually obeyed because they lacked information to back up a refusal. The influence of higher rationing officials on the lower officials can best be described as pressure. Lower officials disliked to turn down requests of the higher officials because they felt they ought to obey their supervisors. All that can be said is that if groups desiring changes in the rules could get the support of rationing superiors they had a better chance of obtaining those changes. Functions

of

Superiors

Related to the misconceptions about authority criticized above is the popular stereotype of the role and function of the executive as a modern Zeus hurling thunderbolts of orders over six phones to all parts of his organization where they are automatically carried out by people resembling marionettes. This stereotype is not confined to the uneducated lay-

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man. It is easy to find in much current administrative theory. In fact, in the author's opinion, any discussion or theory of administration that conceives of administration as management and consequently directs itself to "the man on top" has this stereotype implicit within it. (Having made this statement it is only fair to add that in the author's opinion the study of administration is the scientific study of human behavior in organizations; and that the knowledge so derived may be used in many ways: by a top executive to achieve more democratic responsibility in "his" organization, greater accomplishment of objective, more personal power and possibilities for even more personal power later, more profits, a higher personal salary, etc.; it may be used by an employee to get his supervisor fired and himself put in the supervisor's place or for other purposes; it may be used by a labor leader to gain greater concessions from management, or what not; it may be used by a saboteur to wreck the organization; etc.) T h e popular stereotype of the executive or "boss" pictures him as the one person in the organization who knows more about everything going on there than anyone else. He does the thinking. He gives orders (creates policy), and the lower people carry them out (engage in administration). Rationing executives gave very few orders because they did not know what to order. T h e complete and technical information on which rationing actions had to be based was possessed only by personnel in the rationing branches. Very few people mastered one rationing program. Probably no one mastered two. Rationing divisions had three or more. There were thirteen in the department. Small planning groups within the branches determined the need for rationing rules and planned the rules. T o a large extent, these groups planned or decided upon the actual work assignments of planning personnel. Assignment was largely self-assignment. In popular thinking, and much current administrative theory, the executive is also conceived as a kind of paragon of virtue ruling over childish and eccentric creatures who need a strong parental guiding hand. These childish creatures will not work unless continually watched or "supervised"; their product must be carefully reviewed because of their irresponsibility. Under the influence of this stereotype, rationing superiors and their staff assistants tried more and more devices to "control" the work and working habits of the planning groups. Under the conditions existing in rationing, this "high level supervision," and the stereotype underlying it, were the utmost nonsense. Planning officials had an important job and knew it. They also had the actual power to accomplish it. They were extremely responsible. They

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THEORY

worked hard and long to solve their problems, without close oversight, because they knew the problems had to be solved, and they knew they were the only ones who could solve them. Night and Sunday work was very common, but seldom was anyone asked to do it. No claims for overtime were ever put in by the "professional" personnel and seldom by the "clerical" personnel. If one were to drop in on OPA at night, he found that the rationing people working there were people from the sections in the rationing branches; they were seldom the hierarchy or overhead staff personnel. Thus, increasing attempts by the "top side" to control work and working habits of the planning officials caused considerable resentment and decline in morale. The situation became morally absurd. The principal functions of rationing superiors were to "carry the ball" for the lower officials when they needed prestigious support in some battle, and to provide a channel by which views and values from outside, not seriously considered by the planning groups, could make an impact on the decision-making process. One would be foolish to underestimate the value of these functions, however. The Myth of Staff In much current administrative speculation, a great deal is made of the distinction between "staff" and "line" (also called "operating" people). Precisely why this distinction is made we will not try to answer immediately. However, two central notions of the "staff" concept will be noted and evaluated against rationing experience. First, the staff only plans or advises; it does not command. Only the line executive commands. Second, the staff is closer to the executive; it understands his problems better; it takes his point of view; it identifies with him. With regard to the first claim, that staff does not command or exercise authority, it can be safely said that staff units and personnel in rationing issued more commands than did the line hierarchy. These units had the power to raise high level issues whenever the rationing planners refused to take their "advice." The planning officials could not afford to overdraw their credit of support from superiors, and so they acceded to numerous demands of the staff officers. To summarize the relation between staff and line officers it can be said that staff officers could successfully command, and did, up to the point where the rationing planners were willing to make a high-level issue of a point. The notion that the staff officer, being "in the office of" the executive, is closer to the executive and identifies with him and adopts his viewpoint more than the line officer, can find no more support in rationing experience than the former notion. In the first place, rationing deputy

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administrators and division directors identified most closely with the line officers. In the second place, staff officers did not identify more closely with the executive than the line officers did. In fact, they were organized into specialized units and identified with those units. Departmental staff officers engaged in reviewing rationing plans for administrative feasibility were contemptuous of their brother staff officers who reviewed for statistical feasibility; they were contemptuous of the rationing branch personnel; and they were contemptuous of the deputy administrator because he did not crack the whip over the branches in accordance with their advice. Staff personnel did not know the wishes or desires of the executives as well as the personnel of the rationing branches. A very few people, in whom the executive has great personal confidence, selected by him to work closely with him may achieve a very close personal identification with that executive. As soon as the number of persons "in the executive's office" increases, however, so that they become organized and no longer have a close personal relation with him, his relationship with them becomes no different from his relations with the rest of the organization. These staff officers then tend to identify with their particular unit, its function and its personnel, the same as line officers do. The notion of their peculiar relation to the executive then becomes pure myth, the same as the notion that they only plan and advise rather than command. In the final analysis, whether there is a close identification between an executive and anyone in an organization will depend upon the executive's personal confidence in that person, whether he is staff or line. This psychological fact cannot be deduced from a concept of structure. There are other difficulties in the traditional line-staff concept. If this concept were applied, as the author understands it, to the whole of OPA down to a specific local board, there would be only four line officers—the OPA administrator, the regional administrator, the district director, and, finally, the local board chairman (and then, of course, the clerks he commanded). Everyone else in the organization (except other local board members) would be staff; they only advised these line officers; they acted in their names; they planned; they did not command because only one of these line officers had that power. Everyone in the Washington office except the administrator, for example, fitted the traditional conception of staff. In Washington there was staff to staff to staff, etc., to the OPA administrator. According to this conception, the OPA organization chart should have appeared as an inverted Christmas tree, rather than the reverse as it did.

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THEORY

Another difficulty in the traditional concept is its apparent dependence upon a distinction between thinking and doing—staff thinks; line does. Although the author is not a psychologist, he is reasonably sure that this distinction does not have psychological support. Thinking and doing arc no more separable than mind and body, ends and means, politics and administration. If these central claims of the staff-line distinction dissolve as easily as the foregoing discussion indicates, it is quite in order to ponder as to why the distinction came into being in the first place and still exists. A tentative hypothesis to answer the question is suggested here. Two very deepseated and widespread ideas or feeling as to how people should be treated in organizations, feelings that profoundly affect the way people are treated in organizations, are the ideas included within the concepts of unity of command and status. "Unity of command" is a verbalization of the sentiment that "no man should serve two masters." Sentiments connected with status that are relevant here are those that prescribe from whom it is honorable to receive commands, especially the feeling that one should not receive commands from persons of lower status (to do so is demeaning)· The staff concept helps to make acceptable both commands from more than one person and from persons of lower status. It does so simply bydenying that these commands are commands. When a staff officer, and one of lower status, tells an organization member what to do, neither unity of command nor status has been violated because it really was not the staff officer giving the command at all. It was the high status executive—the "boss." The staff officer was merely his mouthpiece; he "spoke in the name of the executive"; he is a "part of the executive"; he is an "extension of the eyes and ears" of the executive. According to the hypothesis here presented, "staff" is largely a myth or fiction that bridges the gap between our expectations and the actuality of organization that lies at its very heart—specialization. The hierarchy cannot contain all needed specialists (its principle is that of the generalist), and there is no guarantee that the needed specialist will always have the appropriate status. Does the term "staff," then, serve only a propagandistic purpose? The answer to that question depends upon whether we can define it so that it usefully distinguishes something from something else. In the opinion of the writer there are two such definitions possible. First, a small group of people in whom an executive has great personal confidence may exercise such influence on his thinking that it would be useful to distinguish

CONCLUSION

433

them from the rest of the personnel in the organization. T h e i r relation to the executive would be personal; the relation of the rest of the personnel to the executive would be largely impersonal. This small group might be designated as his "staff." T h e term "kitchen cabinet" would do about as well. Precisely who these people were would have to be determined empirically—not by definition. T h e y would be the people to whom the executive turned when he was in doubt, when he needed special help. T o the first deputy administrator for rationing, his " s t a f f " was the directors of the rationing divisions. H e knew them all personally. H e and they were all economists. All had been with O P A since before rationing was conceived of. They were all O P A old-timers. W h e n the deputy administrator had special rationing problems involving his function or the status or problems of the whole department he called them together in a "staff meeting." Although in traditional terms they probably were " l i n e " rather than " s t a f f " officers, according to the definition now being discussed they were his "staff." A second possible definition of the term " s t a f f " that has some utility is much more in line with actual usage of the term than is traditional theory. This definition is the same as that implied in the current phrase "universal staff services." T h e term " s t a f f " might be useful in designating certain specific functions such as personnel, budgeting, etc., that have become organized in much the same way everywhere. T h e term is used in this way a great deal. However, if it is used this way it is necessary to understand clearly that the traditional claims for staff, criticized above, are not asserted. All of these almost universally centralized functions are actually specializations from out of the total means necessary to achieve an objective. They are simply ways to break down the ultimate job. They are cross-specializations the same as were the area and commodity units of F E A . N o n e is necessarily "closer" to or more a "part o f " the executive than any other; none only plans; none only commands; none only advises. All of them do all of these things; all both think and do. The Policy-Administration

Dichotomy

Perhaps no idea has been more pervasive in American administrative theory than the distinction between policy and administration. According to this notion, the legislature, the President, and a few top officials make "policy"; from there on the bureaucracy is engaged in mere administration. T h e terms have acquired a propagandistic significance. If it is desired to bring certain officials within the permanent civil service, it is

434

RATIONING AND ADMINISTRATIVE

THEORY

argued that they do not make policy; they only carry out policy. If it is desired to give the executive power to appoint and remove certain officials, it is argued that those officials make policy. While admitting the propagandist^ value of this distinction, one may yet wonder as to the total value of a distinction that is in fact false. That is, the distinction is false according to any meaningful definition of "policy" that occurs to the writer. If by policy is meant decisions that intimately affect the public or groups within it, such decisions may be made, and are made, at all reaches of the bureaucracy. As has been shown in this study, the rationing decisions that had the greatest impact on the interest of groups within the public were gasoline eligibility decisions by the gasoline eligibility committee, a group hardly recognized in the formal OPA structure, composed of persons of section chief status and lower. It may be argued that decisions were not really made at this level. The committee only advised, and the decisions were actually made by the higher officials; "What the king permits he commands." However, this semantic escape from reality will not do. Decisions were actually made by the committee. Often the hierarchy did not even know about them. When higher levels did become involved, they usually did not dare overrule these decisions because they lacked sufficient information to do so. As far as the gasoline eligibility committee's decisions were concerned, they were not overruled more than half a dozen times. The same generalizations apply to the decisions of all the rationing branches. If policy means a decision expected to guide or influence future decisions—i.e., a rule of conduct, it is clear that policy was made by the rationing branches which planned the rationing rules. If policy means the more important decisions, it becomes a matter of opinion as to what is policy and what not. Certainly the public was tremendously interested in the decisions of the rationing branches, and interested groups continually tried to influence those decisions. If policy is defined as those decisions made by the legislature, the executive, and certain "top officials," the term becomes merely an arbitrary tautology; it begs the question; it will not satisfy the politically interested. Perhaps much of the difficulty comes from a superficial conception of means and ends. The legislature establishes the ultimate objective—the end—and the bureaucracy only supplies the means for achieving it—a purely technical, non-evaluative activity. This conception is not realistic. There are many means for promoting a given end. All have many consequences besides the desired one of promoting the given end. These "unsought" consequences are not valuationally neutral. They are liked or disliked by various people and groups. Consequently, the power to

CONCLUSION

435

select the means from among alternatives is the power to promote or not to promote many other ends or interests besides the one selected by the legislature. It is political power. Administration cannot be separated from politics. This fact is so simple and obvious to the interest groups, which have moved in on the administrative process, that it is difficult to understand why it has not made more impact on administrative theory. There are better ways to defend the merit system than by the insistence that administration is unimportant. A frank recognition of the political nature of administration does not logically lead to adoption of the spoils system. It does lead, however, to greater watchfulness and vigilance; to a demand for more information and publicity. The affairs of the bureaucracy belong to the public as much as do the affairs of the legislature. The Importance

of a Conceptual

Scheme

Administrative theory suffers from lack of useful tools of description. The persons who first became interested in describing the strange new governmental development that we now call administration seized upon whatever tools of description were currently at hand. These tools, the hoary concepts of political science, were inherited from legal history. The notions associated with the term sovereignty were central among them. Fictions, useful in the law, were used to describe reality; to describe what is rather than what ought to be. As a consequence, there has been little description of the administrative process. There has, however, been much prescription as to how that process ought to look. As a further consequence, we have learned very little about the realities of the administrative process. This study has been an attempt to describe an administrative experience with a different, and in the writer's opinion more realistic, set of tools. There remains a final point. Some readers may say, and perhaps rightly, that the rationing experience was not representative. However, if the tools of administrative description are useful only for describing certain undefined types of administrative experiences, we have a problem on our hands far more difficult and complex than any administrative commentator has even hinted. Let us hope that we are studying a single subject under the rubric of "administration"—not an almost infinite number of consequently unknowable subjects.

Notes INTRODUCTION i. The correct title, as given by the President early in 1942, was Local War Price and Rationing Boards. However, their price activities were almost non-existent during most of the rationing period. Only very near the end was a not-too-successful effort made to step up their price activities, and after rationing was over they became Local Price Control Boards. Chapter 1.

P R O B L E M S OF T E C H N I Q U E

1. Amend. 1, Rev. Tire Rationing Regulations, eff. 4/22/42. See also the example cited on p. 214. 2. This might be called the rule-of-the-road situation. It does not matter which side of the road we drive on so long as we all drive on the same side when going the same way. 3. Amend. 39, R.O. 1 1 , eff. 2/24/43. 4. Amend. 1, Rev. R.O. 3. 5. Amend. 28, R.O. 1 1 , eff. 1/20/43. Large numbers of users of fuel oil for cooking and lighting in the South customarily bought in quantities of even less than one gallon. They took a coca-cola or milk bottle to the corner grocery, along with their one-gallon coupon, and bought their pint or quart of "lamp oil." The grocery store got the rest of the gallon. To make a coupon with a value of less than one gallon was further than the rationing officials were willing to go. Therefore, the buying habits of the South simply had to change, which gradually happened in about a year. 6. The number of investigators available to the enforcement department for enforcing all of OPA's programs averaged slightly more than one to a county. 7. Amend. 27, Rev. R.O. 1 1 , eff. 10/1/44. 8. Cf. the following remarks of a dealer representative at the fuel oil distributors advisory panel meeting on March 2, 1945. "Due purely to a misunderstanding we filed one report for three plants. We have no way of giving you the information separately for the plants. I don't believe it would be humanly possible to do if we were going to have our heads chopped off for not doing it, and it wasn't until the thing got publicized that we woke up to the fact that we were in violation." (Transcript of meeting, p. 106.)

43°

NOTES

PROBLEMS OF TECHNIQUE

g. Amend. 27, R . O . 3, issued 1 1 / 3 0 / 4 2 . 10. Amend. 34, R . O . 3, issued and effective 1 / 9 / 4 3 . Here the term "non-compliance" is used in a non-legal sense. Strictly speaking there was no question of non-compliance. T h e rule, in effect, said, "If you want a ration book, register by Decomber 1 5 . " Consequently, failure to register was not a legal violation but the exercise of an option. "Rationales" were documents filed with each amendment that purported to give the official reasons for the amendment. 1 1 . Amend. 4 1 , R . O . 3. 1 2 . Minutes, December 26, 1942. T h e gasoline eligibility committee is discussed in Chap. 3. 1 3 . This argument is similar to the one that says we should have a large number of restrictive rules, whether or not enforced, because then enforcement officers can always " g e t " someone who "deserves" it and find a legalizing rule under which to " g e t " him. 14. Amend. 96, R . O . 5C, eff. 2 / 1 / 4 4 . 1 5 . For want of a better word, the word "legal" is used in two different senses. A legal rule, from the standpoint of the administrators, is one they are authorized to make. A legal rule, from the standpoint of the persons regulated, is one they must obey under penalties of law—policemen, courts and jails, or fines. In this chapter the word is used largely in this latter sense; quotes around it indicate this restricted meaning. W i t h i n this restricted meaning are included the notions of administrative courts and punishments. 16. Amend. 84 was effective 9/8/43. Section 1 4 0 7 . 9 2 ( b ) , limiting the amount of sugar that could be used in an allotment period, was not in harmony with other provisions of the regulations. T h e actual result of excess use of sugar by an industrial user was that he would have to close down for a while. Thus, Section 1407.92(b) only prohibited him from doing something which would result in his closing down for a while. Y e t there was no restriction on how fast an industrial user could use his sugar within an allotment period. H e could use his whole allotment during the first week and close down for the rest of the period. He could not use four months' allotment in two months, but he could use nine weeks' allotment in one week! However, in spite of the absence of a prohibitive rule, industrial users did not use nine weeks supply in one week. 1 7 . Amend. 26, Rev. R . O . 1 1 , eff. 9/22/44. 18. Amend. 4 1 , Rev. R . O . 1 1 , eff. 1 / 2 4 / 4 5 . 19. Memorandum to the director of the fuel rationing division, April 11,1944.

NOTES—PROBLEMS OF TECHNIQUE

439

20. Amend. 3, 2d Rev. R . O . 3, eff. 12/26/44. 2 1 . A m e n d . 9, 2d Rev. R . O . 3, eff. 3 / 1 0 / 4 5 . 22. Section 1 3 9 4 . 5 5 0 3 ( e ) , ( f ) , and ( g ) , R . O . 1 1 . 23. Amend. 72, for example, changed the words "coupon sheet" in a f e w places to "Class 1 or Class 2 coupon sheet," which was at that time more legally accurate. 24. Section 1 3 9 4 . 5 5 0 3 ( b ) ( 1 ) ( i ) , Rev. R . O . 1 1 . 25. Amend. 24, Rev. R . O . 1 1 , eff. 9 / 1 / 4 4 . This example illustrates the extremely oblique angle from which the administrative technique may approach a problem. 26. It can also be argued that the administrative technique is a more ethical approach to regulation. T h e "legal" technique operates, in a new regulatory program, through the use of fear of the consequences of noncompliance. T h e administrative technique, on the other hand, generally appeals to the rational self-interests of the persons regulated. It allows them a wider area of choice. Furthermore, when the fear motive does not work properly, as it frequently does not in regulatory programs, the honest person who complies because of his honesty loses out or is penalized. This is a moral absurdity. T h e rationing officials were often aware of this and sought to avoid it. Their insistence on coupon rationing as the only fair technique of rationing illustrates this awareness. Card rationing of gasoline, installed on the East Coast M a y 22, 1942, was a failure both from the standpoint of depressing demand sufficiently and from the standpoint of fair and equal treatment for all. T h a t program had no selfenforcing characteristics; it operated through fear and honesty. W h e n the fear motivation ceased to work, the honest persons were sorely disadvantaged vis à vis their less honest neighbors. 27. Senate Report No. 480, Part 1 3 , 77th Cong., 2nd Sess., Dec. 1 1 , 1942. 28. Senate Report N o . 59, 78th Cong., ist Sess., Feb. 2 2 , 1 9 4 3 . 29. Amend. 30, R . O . 1 1 , eff. 2 / 1 / 4 3 . 30. T h e requirement that the dealer bring the collected valid coupons to the board, as an impediment, was technically faulty in its lack of motivation. A f t e r the dealer got good coupons, why would he bring them to the board? T h e y were just as good for replenishing his stock as the inventory coupons which the board was supposed to issue him in exchange. It was virtually impossible to detect non-compliance with the requirement to exchange the collected valid coupons at the board. 3 1 . Section 1394.5459, original R . O . 1 1 . 32. Section 1 4 0 7 . 1 4 8 ( c ) , original R . O . 3.

440

NOTES

P R O B L E M S OF

TECHNIQUE

33. Amend. 5, R.O. 3, eff. 7 / 1 1 / 4 2 . 34. They needed popularity both emotionally, because they were human, and practically, because of the enforcement problems. 35. Joel Dean and Lawrence C. Vass, Development of the Fuel Oil Program, p. 339. This document was written as a part of the rationing history project. It is a very frank and interesting, though personal, treatment of the first two years of fuel oil rationing. 36. Amend. 29, Rev. R.O. 1 1 , eff. 1 1 /6/4437. Amend. 39, Rev. R.O. 1 1 , eff. 12/16/44. 38. In notes to his successor for the rationing field history, November 1, 1945· 39. Amend. 90, R.O. 1 1 , eff. 11/30/43. 40. Amend. 9, Rev. R.O. 1 1 , eff. 6/3/44. 41. Lawrence C. Vass in Dean and Vass, op. cit., p. 377. 42. Amend. 80, R.O. 1 1 , eff. 9/15/43. 43. Amend. 45, R.O. 1 1 , eff. 3/13/43. 44. Op. cit., p. 339. 45. Another way in which distrust of local boards manifested itself was the requirement that applicants obtain certifications as to their eligibility for rations from persons or bodies outside of OPA. Requirements that applicants obtain these certifications were usually associated with the need for expert testimony or testimony from someone closer to the facts stated in the application than was the local board. Although certifications were not formal delegations of the rationing power to persons outside of OPA, the boards' acceptance of them at face value tended to make them another delegation in fact. 46. Amend. 33, R.O. 1 1 , eff. 1/27/43. 47. Amend. 17, Rev. R.O. 3, eff. 5/13/44. 48. Amend. 15, R.O. 1 1 , eff. 12/14/42. 49. Amend. 9, Rev. R.O. 1 1 , eff. 6/3/44. 50. Amend. 14, Rev. R.O. 1 1 , eff. 7/3/44. 51. Amend. 56, Rev. R.O. 1 1 , eff. 5/5/45. 52. Amend. 92, R.O. 1 1 , eff. 1/6/44. 53. Dean and Vass, op. cit., p. 167. 54. The rationing officials also felt that, since S F A W (Solid Fuels Administration for War) had decided that coal was not scarce enough to be rationed by OPA, they were not obliged to "bail out" S F A W by giving "carefully distributed" fuel oil to consumers of "badly distributed" coal. 55. Amend. 47, Rev. R.O. 1 1 , eff. 3/2/45. 56. Amend. 14, R.O. 3, eff. 1 1 / 1 / 4 2 .

NOTES

PROBLEMS OF TECHNIQUE

441

57. Amend. 23, Rev. Tire Rationing Regulations, eff. 7 / 2 9 / 4 2 . Other programs had similar provisions. Permission to go into the business of making industrial user food products or to make one not made in the prerationing period could only be obtained from Washington. Permission to become a dealer in stoves or to carry a type not carried before could only be obtained from Washington. This assured a planned geographical distribution in inventories of rationed articles. Sometimes authority to sign "orders issued pursuant to Ration Orders" was delegated to a lower level in the Washington hierarchy. This subject is discussed in Part III. 58. A n interesting example is one from shoe rationing. District offices were allowed to determine for retailers whether a shoe was rationed or non-rationed. T h e Washington office retained the function of making this determination for higher levels of the trade. T h u s , the district office could tell retailers a particular shoe was rationed and the Washington office could tell wholesalers the same shoe was not rationed. A n d they did. 59. Minutes, 3 / 1 6 / 4 4 . 60. Some telephone companies during the war rationed phones for home use on the basis of a supervisor's certification that the applicant needed a home phone in the course of his official business—his supervisor had to contact him after hours. It is probable that government supervisors fairly generally wrote these certifications for employees they liked or who were important to them although the chances of needing the home phone for this purpose were extremely remote. 6 1 . Nahl reports in his diary, entry for 2/9/45, that in February, 1945, field offices were still having problems getting in dealer shoe inventory reports due the previous August. Perham C . Nahl was with the rationing department from the late summer of 1942 until the end of rationing. During most of this time he was chief of the planning section of the shoe rationing branch. H e kept a fairly complete daily diary throughout this period. O n e typed copy is on file with the National Archives. 62. Or the forms which they are supposed to file by a certain date are not yet available. T h e registration dates for fuel oil dealers provided in the original ration order were October 27 and 28. Since the registration forms had not yet arrived in the field from the printer by those dates, Amendment 1 to the ration order, issued and effective October 28, allowed the regional administrators or state directors to fix any date for dealer registration that the availability of forms made feasible. 63. General R . O . 6, Section 1 . 1 2 ( a ) and ( b ) . 64. General R . O . 12, Section 3.

442

NOTES

PROBLEMS OF TECHNIQUE

65. Rev. Tire Rationing Regulations, Section 1315.805, issued 2 / 9 / 4 2 , eff. 2 / 1 9 / 4 2 . Camelback is the material used for retreading and recapping tires. 66. Amend. 2, Rev. Tire Rationing Regulations, eff. 3 / 7 / 4 2 . 67. Amend. 4, Rev. Tire Rationing Regulations, eff. 4 / 1 0 / 4 2 . 68. Amend. 36, Rev. Tire Rationing Regulations, eff. 1 0 / 1 2 / 4 2 . 69. Amend. 24, R . 0 . 1 1 . 70. Amend. 40, R . 0 . 1 1 . 7 1 . Amend. 36, R . O . 11. 72. Amend. 4 1 , R . O . i i , eff. 2 / 2 7 / 4 3 . 73. Amend. 59, R . O . 11, eff. 4 / 1 0 / 4 3 . 74. Amend. 49, R . O . 11, eff. 3 / 1 4 / 4 3 . 75. Amend. 86, R . O . 11. 76. Amend. 24, R . O . 11. 77. Amend. 40, R . O . 11. 78. Amend. 59, R . O . 11. 79. Amend. 86, R . O . 1 1 . 80. T h e planners originally may have had a vague notion that by staggering the applying times for different levels of the trade they were preventing a double bail-out. I Iowcver, the staggered deadlines were finally scrapped when the regional administrators were allowed to set the dates. W h e n different levels of the industry were allowed to apply for bail-out, it was assured that the same oil would be bailed out twice—once for the supplier from whom the dealer bought it on credit, and once for the dealer from whom the consumer bought it on credit. T h a t is actually what happened in many eases, as any former fuel oil field auditor will tell you to this day. Only one bail-out should have been allowed—bail-out of the bad consumer notes. Whatever the planners had in mind, however, this was a situation to which deadlines could not be applied, as the record amply testifies. T h e W a r Ration Book One deadlines, discussed above, are another example of ineffective use of deadlines. Ration book one was a "favor" the rule-makers had to bestow. Applying for this book was not compulsory. Setting a deadline for application only forced some people to apply who otherwise would have got along without it. T h e planners said no one could apply after December 15, 1942. They had to extend this to January 15, and then they had to abolish the deadline. 81. Amend. 82. Amend. 83. General the preceding

3, 2d Rev. R . O . 3, eff. 1 2 / 2 6 / 4 4 . 5, 2d Rev. R.O. 3, eff. 1 / 7 / 4 5 . R . O . 16, eff. 1 2 / 1 5 / 4 3 . T h e inventory report described in paragraph was not, according to rationing jargon, a re-

NOTES

PROBLEMS OF TECHNIQUE

443

registration. Functionally, however, there is no difference. Both actions were reports from industrial users, though they reported different information. 84. General R . O . 16, Section 19. 85. Amend. 2 to supplement N o . 1, R . O . 1 1 , eff. 1 / 4 / 4 3 . 86. Amend. 2 1 , R . O . 1 1 , eff. 1 / 3 / 4 3 . 87. Amend. 25, R . O . 1 1 , eff. 1 / 9 / 4 3 . amendment also shifted the burden of sifting out the spurious claims to suppliers, who probably had a better idea of the honesty of individual dealer accounts than local boards did. However, by allowing these mixed value period three coupons to stay in the flow-back system, the amendment, in effect, allowed the industry ten-gallon credit for nine-gallon performance, thereby inflating the ration currency. Only a supplier's honesty kept him from claiming tengallon credit for all period three coupons. This being so, it might have been better not to have had any unusual deadline for exchanging period three coupons and to have allowed them to be exchanged within the same time limitations applied to other coupons, with the admonition that they must be exchanged at the actual value at which they originally were received from consumers. T h i s would have been sufficient stimulus to arouse the motive of honesty. 88. Another kind of deadline was the expiration date attached to all rationing coupons in the beginning of rationing. T h a t coupons must be periodically expired was a principle believed by most rationing officials with the conviction of a religious dogma. Rationing officials believed that failure to expire coupons periodically would result in a cumulative demand capable of wiping out inventories over night. Gradually the idea dawned that expiration dates were encouraging consumption of the scarce rationed commodities. Consumers, rather than have a coupon expire, converted it into the rationed commodity whether or not they needed it. Stories became current such as that of the hillbilly who converted his family's shoestamps into shoes saying: " T h e government may make us buy all these shoes, but it can't make us wear ' e m " ; or of the one who converted five five-pound sugar stamps into twenty-five pounds of sugar, saying: " I don't know what I'm going to do with all this sugar; but if the government wants me to use it, I guess I can find a way to do it." T h e sacred belief in expiration dates withered away, and, one by one, they were removed, with no harmful effects.

NOTES

THE GASOLINE ELIGIBILITY

Chapter 2.

COMMITTEE

T H E F O R M A L P L A N N I N G PROCESS

1. The annotation system of board instruction, discussed later, was adopted in 1943. 2. Section 1394.5001 (a) (19a) (iii). 3. A former chief of the gasoline eligibility section says: "Interpretations to the regulations in many cases reflected policy decisions. The original regulations were written in general terms. Instances arose on particular cases where it was possible for an applicant to be considered either eligible or ineligible. Thus, the effect of some interpretations was similar to that of a regulation. . . . As time passed the effect of interpretations modified considerably the original obvious meaning of certain of the eligibility provisions." (In a draft of the chapter on "Eligibility" for the gasoline rationing history, not published.) This is a very modest statement. Most interpretations "reflected policy decisions," and their effect was the same as that of a regulation. 4. Section 1394.7706(g). 5. Section 1394.7851(b) ( i ) ( i ) . 6. Section 1394.5402(a). 7. Amend. 6, Rev. R.O. 1 1 , eff. 5/19/44. Chapter 3.

THE GASOLINE ELIGIBILITY COMMITTEE

1. Minutes, 11/7/42. These were the committee's first recorded minutes. The committee also "suspected the real reason newspapers desire eligibility . . . is to obtain transportation for reporters." 2. Ibid., 1/12/43. 3. Quoted in ibid., 11/19/43. A few months later, the committee's original solution to the problem, proposed the previous January, was adopted. Each board was given a small "hardship" quota of gasoline to use in situations not covered by the regulations but felt by the boards to be deserving. In this way, the boards could avoid most of the pressures, and the Washington office could control the amount of gasoline "lost" by changing these quotas. 4. In a draft of the chapter on "Eligibility" for the gasoline rationing history. 5. Minutes, 3/24/43. Travel to victory gardens was made eligible for special rations on April 24, 1943, by Amendment 44 to Ration Order 5C. It was restricted to gardens of 1,500 square feet or more, thereby eliminating the great majority of them. The total mileage allowed could not exceed 300 miles for six months, or about twelve miles per week. The same restrictions were applied in the following years.

NOTES

THE GASOLINE ELIGIBILITY COMMITTEE

445

6. Ibid., 3/3/43. 7. Ibid., 2/3/44. 8. Ibid., 4/26/45. 9. Before the fuel oil rationing officials made commercial pleasure boats eligible for residual oil, they found out the exact number of such boats, where they were located, and the total amount of residual oil they would consume if made eligible. The American Baptist Home Mission Society petitioned for preferred mileage for its one field representative who called on Japanese Relocation Camps to help prepare the Japanese for a sucessful post-war adjustment. 10. Minutes, 2/2/43. 11. Ibid., 1/19/43. 12. Ibid., 4/13/43. 13. Ibid., 2/23/43. In January of 1943 the Window Shade Institute, a trade association for cloth window shade manufacturers, petitioned for preferred mileage for the salesmen of its members. The industry relations officer from the fuel rationing division appeared in support of this petition, pointing out how cooperative these people had been and were being with the fuel division's fuel oil conservation program. The gasoline branch had recently been transferred from the fuel division, and there were warm personal relations between the fuel and gasoline rationing personnel. Nevertheless, the committee denied the petition. "In view of the cooperation which they have been giving OPA they should be turned down with as sympathetic a statement as possible and an expression of our appreciation for what they have been doing." (Ibid., 1/12/43.) Similar cases could be cited in relation to other rationing programs. 14. I bid., 4/20/43. 15. Ibid., 4/6/43. 16. Ibid., 8/13/43. 17. Ibid., 8/20/43. 18. Ibid., 5/4/44. 19. Ibid., 3/24/43. 20. Ibid. TTie Brewing Industry Foundation, a trade association, wanted preferred mileage for twenty-two field investigators as a result of whose visits to saloons, "Sanitary and moral conditions of saloons are improved" especially in bars near Army or Navy Camps. (Ibid., 12/1/42.) The National Retail Furniture Association petitioned for preferred mileage for installment collectors, arguing that in the midst of war-born scarcities installment selling was important "for raising the standard of living and lowering of costs to consumers by the development of a mass market"! (Ibid., 3/2/43.) Etc.

446

NOTES

THE GASOLINE ELIGIBILITY

COMMITTEE

21. Ibid., 8/13/43. 22. Ibid., 11/7/42. 23. Ibid., 3/3/43. 24. Ibid., 3/24/43. 25. Ibid. 26. Ibid., 1/12/43. See the section on "Pressure as a Technique of C h a n g e " for further illustrations of refusal to be stampeded into action. 27. Ibid., 12/1/42. 28. Ibid., 1/19/43. 29. Ibid., 4/27/43. 30. Ibid., 10/19/43. 31. Ibid., 11/14/44. 32. Ibid., 4/20/43. 33. Ibid., 7/28/43. 34. Ibid., 11/19/43. 35. Ifeid., 12/1/43. 36. Ibid., 10/3/44. 37. Ibid., 12/8/42. 38. Jòid., 1/5/43. 39. I&i'd, 3/24/44. 40. ibid. 41. Ibid., 2/19/43. 42. Ibid., 3/3/43. 43. ibid., 1/12/43. 44. Ibid., 3/24/43. 45. ibid., 1/12/43. 46. Ibid., 8/7/45. 47. Ibid., 3/24/44, for tax assistance to oil producers; ibid., 2/9/43, f ° r tax assistance to retail food dealers. 48. Ibid., 1/26/43. 49. Ibid., 6/22/43. 50. Ibid., 8/20/43. 51. ibid., 3/3/43. 52. Ibid., 4/6/43. 53. 54. 55. 56. 57· 58.

Ibid., Ibid., ibid., Ibid., I b i d -> Ibid.,

1/19/43. 12/15/42. 12/22/42. 1/5/43. 1/19/43· 2/2/43.

NOTES—THE GASOLINE ELIGIBILITY COMMITTEE

59. 60. 61. 62. 63.

Ibid., 3/24/43. Ibid. Ibid., 6/22/43. ibid., 8/13/43. ífci'd., 2/3/44; 7/ 2 δ /43;

12

447

/21/43·

64. Report by the member of the committee who contacted the fertilizer industry representatives on December 8, 1943. In this case, the Department of Agriculture requested gasoline for fertilizer salesmen who traveled to dealers and attempted to get them to accept new methods of fertilizer transportation. The committee insisted on knowing why it was necessary to accomplish this by the personal contacts of salesmen. Upon questioning representatives of the fertilizer industry and officials of the War Food Administration, it discovered the following interesting facts: . . the proposed new methods of fertilizer transportation will involve increase in transportation charges. These charges . . . cannot be absorbed by fertilizer manufacturers or dealers, but must be passed on to farmers. Dealers must be contacted in person and supplied with ammunition necessary to sell the farmers on this deal. [The industry men were also afraid] that many merchants who handle commodities other than fertilizer would abandon their fertilizer business rather than submit to dictation from fertilizer manufacturers. Moreover, it appears that manufacturers are anxious to maintain dealer good will for post-war purposes." {Ibid., 12/21/43.) 65. Ibid., 4/6/44. 66. Memorandum from the branch chief to the division director, dated May 6,1944. 67. In a memorandum to the chief of the gasoline eligibility section, dated October 15, 1943. The writer of this memorandum had been president of a large corporation for more than twenty years. 68. Minutes, 12/1/42. 69. Ibid., 4/13/43. 70. Ibid., 2/3/44. 71. Ibid., 6/19/45. 72. Op. cit. 73. Ibid. 74. Minutes, 12/15/42. 75· Ibid -> 2 /9/43· 76. Ibid. 77· Ibid -> 4/27/4378. Ibid., 7/28/43.

44°

NOTES

THE GASOLINE ELIGIBILITY

COMMITTEE

79. Ibid., 4/27/43. 80. Ibid., ζ/ιβ/^τ,. This is the only recorded case which seemed to involve deliberate falsification of facts. 81. Ibid., 6/22/43. 82. The granting of preferred mileage for school teachers to travel to and from school. 83. Minutes, 12/15/42. 84. Ibid., 12/22/42. 85. Ibid., 4/6/43. There was a very good reason for denying this petition, explained below, p. 116. 86. Ibid., 8/20/43. 87. Ibid., 12/21/43. A very important source of automobile replacement parts during the war was the used parts business. 88. Ibid., 1/19/43. Two other experts in W P B were also consulted, a consultant to the Special Equipment and Surgical Instrument Section and the chief of that section. They did not think that these salesmen performed an essential service. 89. Ibid., 12/7/43. 90. From a letter in the files, dated January 22,1944. 91. Minutes, 3/24/43. 92. Ibid., 4/27/43. 93. Ibid., 5/7/43. When the chief of the gasoline rationing branch discussed the value of the services of feed salesmen with the representatives of the farm cooperatives, representing over a million farmers, all of the representatives "stated that 99 out of 100 feed salesmen were salesmen and nothing else. Many of them stated that some of these men were an actual menace to production. They claimed that a clever sales technique, fortified by some superficial show of technical knowledge, frequently resulted in persuading a farmer to purchase material which actually decreased the production rather than increased it." (Memorandum to the chief of the gasoline eligibility section, October 15, 1943 ) 94. Minutes, 4/6/43. 95. Ibid., 12/22/42. 96. Ibid., 2/2/43. 97· I b i d > 1/5/43· 98. Ibid., 3/30/43. 99. Ibid., 10/6/43. 100. Ibid., 2/9/43. 101. Ibid., 8/20/43. 102. Ibid., 8/30/43. Note the committee's reaction to the petition of the motion picture industry, discussed p. 116.

NOTES—INDUSTRY CONSULTATION

449

103. Ibid., 5/25/43. 104. Op. cit. 105. See, for example, the article by Jacob H. Beuscher, a former rationing attorney, on "Legal-taught Attitudes and Consumer Rationing," Wisconsin Law Review (Januar)', 1945), pp. 63-76. 106. Minutes, 1/5/43. This was one of the few cases where the committee's decision was not unanimous. Two members dissented. 107. Ibid., 1/19/43. 108. Ibid., 2/2/43. 109. Ibid., 3/24/43. 110. Ibid., 6/15/43. 1 1 1 . Ibid., 1/12/43. 112. Ibid., 3/16/43. 1 1 3 . Ibid., 1/19/43. 114. Ibid., 3/16/43. 115. Ibid., 6/15/43. 116. Ibid. Under continuous pressure from Northeastern Congressmen, general vacation driving was finally allowed, later in the summer. 117. This is not to deprecate the value of the services performed by these people, but only to draw attention to a general feeling about them. They have not been as well "sold" as have the other healing professions. Chapter 5.

INDUSTRY CONSULTATION

1. R.O. 19, 8 F.R. 12097, e f f · 8/31/43. 2. At the beginning of automobile rationing on January 13, 1942, the NADA went before the House Small Business Committee with a series of demands or proposals, all but one of which were accepted by automobile rationing personnel, mostly from the automobile industry. It may be that industry consultation as a device of group representation was little needed thereafter. (Hearings, I, 24.) Industry consultation in gasoline rationing, first organized by non-industry men, was allowed to lapse by non-industry men (but was not later revived when industry men were in control). 3. The second deputy administrator also required reports as to the number of "industry men" in each branch. Again the branches obliged, listing the slightest previous industry experience of each person who had ever had such experience. The lists of some branches were very imposing, for large sections of auditors, all previously from some industry, formed almost a majority of the personnel of some branches. These auditors ranged from CAF-5 to CAF-11, and all were doing rationing work which was largely clerical.

4 50

NOTES

PRESSURE

4. Dean and Vass, Development of the Fuel Oil Program, p. 144. 5. Nahl's Diary, 4/21/43. Chapter 6.

PRESSURE

1. For example, some officials of P A W asked for favorable treatment under the fuel oil regulations for some of their customers. (Reported bv Dean and Vass, Development of the Fuel Oil Program, p. 250.) Nahl reports in his diary, entry for February 12, 1943, a phone call from a man in the W P B Motion Picture Section who wanted rationed rubber boots made available to R K O for motion picture production. Etc. 2. The difference between a demand and a request is in manner of presentation. A request is presented in a more humble and friendly manner than a demand, and is, therefore, more difficult, emotionally, to denv. Petitions for preferred eligibility accompanied by threats of congressional or political action were summarily and resentfully rejected by the gasoline eligibility committee. On the other hand, some requests presented in a very friendly fashion were denied "in as sympathetic a manner as possible." 3. The pressure campaign described in the following memorandum from the processed foods rationing branch economist to his branch chief is an example of pressure through another government agency. There were many such in food rationing. "A pressure campaign to remove canned peas from rationing controls has started. "The Wisconsin canners are getting worried about the movement of peas from the 1945-46 pack. . . . "In the light of the above, the Wisconsin canners have contacted the National Canners Association, who in turn have stirred up some of the commodity people at the Department of Agriculture. They are asking for an immediate emergency reduction [of points] to zero. On Saturday, August 4 , 1 was informed that Merrit Greene of the Vegetable Commodity Branch, Department of Agriculture, had written a letter to Sv Smith, Chief, Civilian Requirements Branch, Department of Agriculture, asking that peas be removed from rationing immediately." He then showed that this demand was not justified by the facts. 4. Fifth Intermediate Report (on Stabilization Extension Bill), April 24, 1944. 5. Second Intermediate Report, November 15, 1943. 6. Hearings, Part 2, p. 320. 7. The rationale accompanying the amendment is a good illustration of the meaningfulness of the official reason for action. "It has been shown

NOTES—PSYCHOLOGY OF PLANNING:

INTERNAL PHASE

451

that the services of representatives of farm organizations who qualify under the above provisions are important to the National program for increasing the productivity of agricultural establishments. In view of the importance of the farm production program to the war effort preferred mileage has been extended such representatives." 8. Amend. 181, R.O. 5C, eff. 5/1/45. 9. Both Bowles and Henderson created a strong emotional antipathy toward OPA in Congress because of their methods and attitudes with regard to Congress. Chapter 7. T H E SOCIAL PSYCHOLOGY OF PLANNING: T H E I N T E R N A L PHASE 1. Amend, 8, Rev. Tire Rationing Regulations, eff. 5/1/42. 2. Amend. 10, Rev. R.O. 3, eff. 4/20/44. 3. Amend. 32, Rev. R.O. 3, eff. 7/17/44. 4. Amend. 27, 2d Rev. R.O. 3, eff. 6/30/45. 5. Amend. 35, R.O. 17, eff. 9/7/43. 6. Section 1408.163(a), R.O. 3. 7. Amend. 2, Rev. Tire Rationing Regulations. 8. Section 2.3(b), 2d Rev. R.O. 3. 9. Amend. 27, Rev. Tire Rationing Regulations, eff. 9/16/42. 10. Amend. 1, R.O. 3, eff. 5/20/42. 11. Amend. 63, R.O. 3, eff. 5/24/43. 12. See Amends. 27, 34, 41, R.O. 3. 13. Amend. 48, Rev. R.O. 11, eff. 2/26/45. 14. R.O. 9, eff.12/19/42. 15. R.O. 9A, eff. 8/24/43. 16. Minutes, 3/16/43. 17. Ibid., 6/22/43. 18. Amend. 36, Rev. R.O. 11, eff. 12/6/44. 19. Amend. 27, R.O. 1 1 , eff. 1/20/43. 20. Amend. 80, R.O. 1 1 , eff. 9/15/43. 21. Amend. 1, Rev. R.O. 11, eff. 4/1/44. 22. Amend. 52, Rev. R.O. 11, eff. 4/11/45. 23. From a memorandum in the files. 24. Amend. 31, R.O. 1 1 , eff. 2/2/43. 25. Amend. 21, Rev. R.O. 11, eff. 8/18/44. 26. Amend. 34, Rev. R.O. 3, eff. 7/25/44. The other food ration orders were amended at the same time to accomplish the same result. 27. Amend. 7, Rev. R.O. 11, eff. 5/20/44. 28. Amend. 50, Rev. R.O. 11, eff. 3/15/45.

452

NOTES

THE SUPPLY AGENCIES

29. Memorandum, "Signature on Coupon Sheets." August 1, 1944. 30. Amend. 23, Rev. R . 0 . 1 1 , eff. 8/14/44. 31. Amend. 93, R.O. 5C, eff. 1/10/44. The same rule was adopted in fuel oil rationing by Amend. 22, Rev. R.O. 11, eff. 8/21/44. 32. Amend. 9, Rev. Tire Rationing Regulations, eff. 5/15/42. The rationale illustrates how difficult it is for officials to admit mistakes: "It was felt that in some instances this limitation might have forced retreaders to refuse to retread tires which required more than the amount of camelback which they could replenish"! 33. Amend. 38, Rev. R.O. 11, eff. 12/9/44. 34. Amend. 40, Rev. R.O. 11, eff. 12/26/44. 35. Amend. 36, R.O. 11, eff. 2/1/43. 36. Amend. 15, R.O. 11, eff. 12/14/42. 37. T h e original Section 1407.92(b), R.O. 3. 38. A memorandum from the chief of the heating fuels and petroleum price enforcement branch to the chief of the rationing history section, dated October 26,1945. 39. Amend. 17, Rev. Tire Rationing Regulations, eff. 7/1/42. 40. From a document in the files entitled "Memorandum on the pooling of A coupons for use by deer hunters." 41. Amend. 16, R.O. 11, eff. 12/21/42. 42. Amend. 19, Rev. R.O. 11, eff. 8/15/44. 43. Procedural Regulation No. 4, eff. 2/6/43; ^ e v · Procedural Regulation No. 4, eff. 4/1/44. 44. Procedural Regulation No. 9, eff. 11/9/42. 45. Amend. 8, Rev. R.O. 11, eff. 5/23/44. 46. Minutes, 8/26/44. 47· l b i d > 6/19M5· Chapter 8.

T H E SUPPLY A G E N C I E S

1. Development of the Fuel Oil Program, p. 8. 2. In a report left with OPA entitled "The Federal Rationing Program in the Second World War." 3. Paul M. O'Leary, "Wartime Rationing and Governmental Organization," American Political Science Review, XXXIX (1945), 1098. "The P A W has always been the government arm of the domestic oil industry." Ibid., p. 1095. Others besides OPA officials had a similar notion of P A W . In its Interim Report, October, 1943, the Petroleum sub-committee of the House Naval Affairs Committee stated: "The Petroleum Administration for W a r was criticizcd by nearly every witness who appeared before the sub-

NOTES—THE BUREAU OF THE BUDGET

453

committee for . . . its favoritism to the large oil companies, whose employees predominantly man the Petroleum Administration for War." (P. 21.) Commenting upon the industry committee set-up of PAW, this same report stated: "These committees have been entrusted with too much power and they have been biased . . . in favor of the major oil companies." (P. 21.) 4. Figures obtained from the processed foods rationing branch economist. 5. As a member of the fuel oil industry advisory committee and of the PAW District One supplies and distribution committee said: "We have discovered that historical figures are about as useful as a third leg at the moment because the shift of population, the shift of war demand, has thrown the thing completely out; so what we need is coupon issuance by zones." (Transcript of fuel oil industry advisory committee meeting on December 7, 1943, p. 93.) He was the vice-president of a large eastern oil company. 6. WPB Document No. 224, "Statement by the Petroleum Administration for War to the War Production Board Regarding the Rationing of Petroleum Products," June 8, 1943. 7. Quoted in Dean and Vass, op. cit., p. 289. 8. Senate Special Committee to Investigate the National Defense Program, Hearings, Part 16, p. 6341. 9. Paul O'Leary, "Wartime Rationing and Government Organization," p. 1093. Chapter 9. T H E BUREAU OF T H E B U D G E T 1. "Two Years of Progress under the Federal Reports Act," Report of the Budget Bureau to the Senate Special Committee to Study Problems of American Small Business, Report No. 47, Part 2, 79th Cong., ist Sess., p. 5. 2. Ibid., p. 10. 3. A memorandum from the meat rationing attorney to his superior, dated December 1, 1943. 4. A memorandum, dated August 10, 1943, prepared for the food rationing division director to the assistant director of the Budget Bureau in charge of statistical standards but never sent because the language in the last of it was too strong. Form R-315 was the all-purpose form which was discussed, pp. 189-91. The wording which the Budget Bureau was insisting on having changed would not appear on a form but only in the Federal Register about which the applicant had probably never heard

454

NOTES

THE BUREAU OF THE

BUDGET

and was almost certain not to see! Likewise the word changes insisted upon in the previous quotation were word changes in the regulations— not in a form. 5. This case is constructed from many different entries in Nahl's Diary, from conversations with Mr. Nahl, and from a draft of the Shoe Rationing History, dated January 24, 1946, prepared by Mr. Nahl (pp. 83 ff.). The latter manuscript is highly documented with memoranda from the shoe rationing files. 6. Ibid., pp. 91-93. 7. Ibid., p. 94. The same summer, the Budget Bureau approved without question a semi-annual fuel oil inventory with substantially complete coverage, justified solely on the basis of accountability. 8. It is probably worthwhile to add the rest of the story, not in justification of the Bureau of the Budget's review for "technical adequacy" but to give some insight into the problem-solving attitudes of the shoe ration ing personnel (and those of the other agencies which supported the 1945 inventory), which did not differ from those of most other rationing personnel. For carrying out the accountability function of the 1945 inventory, the shoe branch, with enforcement cooperation, "selected a sample of approximately 5,000 names to be checked for their compliance with Ration Order 17, against their previous inventory filings." (Nahl, ibid., p. 100.) Thus, the justification for complete coverage on the ground of accountability disappeared. The truth is that the basic drive of the rationing officials for "complete coverage" stemmed from their feeling that the only way they could be certain about the number of shoes (or other products) in dealers' inventories was to require that they "all" be counted. In January of 1945, the field staff was still struggling to get in the 1944 shoe inventory reports required the previous August, and "we never did get inventories from all shoe concerns." (Ibid., p. 95.) Shoe rationing came to an end before a substantial number of the 1945 inventory reports were received. 9. Nahl's Diary, 12/13/43. 10. Op. cit., p. 6. 1 1 . As witness the history of the shoe inventory forms. On June 19, 1945, a representative of the National Shoe Retailers Association called on the shoe rationing officials. He severely criticized the price breaks on the 1945 shoe inventory form. He said the form should have been cleared with the industry before it was printed. Nahl pointed out to him that the form had been cleared by the industry early in the year, and the industry representatives had agreed to it. He was then told by the NSRA representative that conditions had materially changed since then. As Nahl

N O T E S — T H E OVERHEAD

455

says, "It is difficult for people in Industry to understand how much time it takes to clear documents like this industry form." Diary, 6/19/45. Chapter 10.

T H E OVERHEAD

1. Although the information department did very well, it did not always confine its review to review for information. When the gasoline rationing branch planned to have all consumers write their license numbers on all of their gasoline coupons, the information department made an issue of this plan which had to be settled by the OPA administrator— in favor of the gasoline rationing branch, of course. The information department had forgotten that its function was to make rationing plans popular—not to make popular rationing plans. 2. Some attorneys felt and argued that legal review was the most valuable review. An attorney, they said, could review both for administrative effect and legal effect, while a non-attorney could review only for the former. 3. As was said before, some of the early division directors were actually members of the working group. They were, in effect, super branch chiefs. By the middle of 1944, this type of division director had disappeared (except, perhaps, in the miscellaneous products rationing division). 4. The OPA labor office was created in the summer of 1942 by Mr. Henderson at the request of the AF of L and the CIO. These two organizations and the Railroad Brotherhoods were asked to nominate one man each—a "liaison man"—who were then put on the OPA payroll in an OPA labor office staffed with OPA assistants and under an OPA appointee. At the same time, a labor policy committee was appointed composed of three members from each of the three national organizations mentioned, selected by them, and three alternates from each. Also in the labor office was a negro labor specialist and a women's labor specialist. The OPA labor organization had many problems, perhaps chief of which was to maintain the rationalization of its role as a consumer representative in a consumer organization. It acted both as a special interest group and, when the labor interest corresponded with the consumer interest, as a consumer representative. There is a considerable basis for the claim that it occasionally acted as OPA's "consumer conscience." 5. Transcript of meeting, p. 69. 6. Commenting on the gasoline coupon endorsement requirement, he said to the fuel oil industry advisory committee meeting of December 7, 1943, "I believe you are asking for something that is going to be difficult to get, and certainly something that doesn't have public support, and

456

NOTES—RATIONING

RULE-SYSTEMS

I don't believe that your people have done a whole lot to help themselves to get that support. I may be over-apologetic, but I think it is a lousy job." (Transcript of meeting.) Use of the second person may have been a speech mannerism, or it may have been a subconscious reversion to a role of an outside critic of rationing, probably the latter. He had been deputy administrator for about a month. a so 7. Nahl's Diary, 1/17/45. ' challenged the facts or the existence of the problem. He thought the odds and ends would move without being released from rationing. Such a criticism implied that the shoe branch had been duped in the past. Doubt as to the ability of branch personnel to determine the facts would have placed the deputy administrator in a completely hopeless position, or it would indicate the appointment of a new shoe rationing staff. 8. Ibid., 3/1/45. 9. Ibid., 12/22/44. The proposal was finally rejected a week later by a group meeting in the deputy administrator's office to discuss the food stamp cancellation. The reason was a technical or factual one. The proposal involved a partial cancellation, and OPA did not dare to adopt it following the food stamp cancellation. (Ibid., 12/27/44.) 10. A mimeographed departmental memorandum, dated June 30,1944, entitled "Rationing Policy and Procedure on Amendments and Other Materials." 1 1 . Written comments on a draft of the document mentioned in the previous footnote. The deputy administrator agreed with his comments. 12. Ibid. 13. Nahl kept his daily diary from June 1, 1942, until the end. The first time the deputy administrator for rationing was mentioned was on April 20, 1943, and then only to note that he had called a general departmental staff meeting. The next mention of the deputy administrator was on November 18,1943, and then only to note a meeting called by the second deputy administrator and to record some of the "policies" enunciated by him at that meeting. On May 19, 1944, Nahl notes that the recently appointed third deputy administrator was to help obtain a Budget Bureau clearance. Not until December 22, 1944, is there any mention of a deputy administrator turning down a branch proposal. Chapter 11.

R A T I O N I N G RULE-SYSTEMS

1. Cf. the remarks of a fuel oil dealer at the fuel oil distributors panel meeting on March 3, 1945. "I know all of us in the past who wanted information would call the District Office rather than trying to find it in RO-11"—the fuel oil regulations. (Transcript of the meeting, p. 69.)

NOTES Chapter

12.

PARTS OF RULE-SYSTEMS PARTS OF

457

RULE-SYSTEMS

1. A m e n d . 57, R . O . 11, eff. 3/30/43. 2. Nahl's Diary, 10/4/43. 3. Amend. 5, Rev. R . O . 11, eff. 5/15/44. 4. A m e n d . 10, Rev. R . O . 11, eff. 6/6/44. 5. A m e n d . 31, 2d Rev. R . O . 3, eff. 8/3/45. 6. L. P. Steuart and Bro., Inc. v. Bowles et al., 322 U.S. 398. 7. For this development and for a more complete and technical discussion of suspension orders, see Carl W . Berueffy, " T h e Rationing Suspension Order and Its Development as an Administrative Sanction," Rocky Mountain Law Review, X V I I (December 1944), 83. M r . Berueffy was the enforcement attorney for the O P A district office in Washington, DC. Chapter

J3.

T H E L E G A L D O C U M E N T AS A N INSTRUCTION

1. Although food adjustment policies could, with propriety, be incorporated only in secret memoranda in the food rationing division's files, when it was decided to discontinue granting increased allotments to industrial users on the basis of certain of these policies late in 1944, the attorneys felt it was necessary to announce this fact in an amendment to the regulations. This amendment, effective November 3, told industrial users that they could petition for adjustments on the grounds of these discontinued policies only until December 15, 1944. T h e policies related to conditions occurring before rationing began which could make an industrial user's historical use of food unrepresentative. T h u s the existence and operation of these policies could be kept "secret" for over two years, but the discontinuance of the policies had to be announced in the Federal Register one and one-half months before it occurred. (See A m e n d . 51, Rev. R . O . 3.) 2. Section 1394.5310 of R.O. 11, added by Amend. 45 (3/8/43). 3. Minutes, 2/18/44. 4. Ibid. 5. Ibid. 6. Ibid. 7. Ibid. 8. Amend. 41, R.O. 3, eff. 2/22/43. 9. Amend. 27, 2d Rev. R.O. 3, eff. 6/30/45. 10. Nahl's Diary, 4/16/45. 11. Ibid.

458

N O T E S — T H E L E G A L DOCUMENT AS AN INSTRUCTION

12. Ibid., 5/16/45. 13. Section 1315.401(a) and (b). 14. Section 1407.83(a), Rev. R.O. 3 as amended by Amend. 13 (5/7/44)· 15. Amend. 47, 2d Rev. R.O. 3, eff. 11/6/45. 16. Section 5701 (c) (8), R.O. 11 as amended by Amend. 5 ( 1 1 / 2 3 / 4 2 ) . 17. Amend. 80, R.O. 1 1 , eff. 9/15/43. 18. Section 6 1 1 (a) and (b). 19. Section 1407.71(a), R.O. 3, added by Amend. 1 (5/20/42). 20. Amend. 19, eff. 7/15/42. 21. Section 1394.7604, R.O. 5C. 22. Section 1394.7604, R.O. 5C as amended by Amend. 90 ( 12/29/43). 23. Section 1394.5461. Amend. 54 became effective 4/2/43. 24. In April of 1945, the top rationing attorneys prevailed upon the deputy administrator for rationing to issue an amendment to General Ration Order 8 (General Prohibitions, Penalties and Conditions) providing that "no official or employee of a Board or of any office of the Office of Price Administration . . . is authorized to var\·, or otherwise grant exceptions to, any provision of any order." (Amend. 1 1 , eff. 4/2/45). At the same time, the deputy administrator sent a memorandum to the field announcing this amendment and stating the same instruction with a considerable discussion of why it was important to avoid making exceptions to the regulations. "This amendment," he said, "of course states the pre-existing rule. The rule was incorporated in an amendment in order to emphasize to all concerned the importance of applying the regulations uniformly and in accordance with interpretations properly issued." In this case, it would look as though the attorneys had convinced the deputy administrator that his relation with the field was entirely legal. Interesting also is the fact that the chief function of the field was to interpret and grant exceptions to the regulations. Rationing would have been quite unsuccessful had they not done so. 25. An example of the use of the legal document for this purpose is cited above, p. 43. 26. Section 702, Rev. Tire Rationing Regulations. 27. Section 1394.5419(a), Rev. R.O. 1 1 , added by Amend. 54 (4/17/45). This provision was copied from a similar one in the gasoline rationing regulations (Sec. 1394.7652^]). 28. Section 606, Rev. Tire Rationing Regulations. 29. Section 1394.5260(b), R.O. 1 1 .

NOTES

Chapter 14.

COMMUNICABILITY OF LEGAL DOCUMENTS

459

COMMUNICABILITY OF T H E RATIONING LEGAL DOCUMENTS

1. Amend. 16, R.O. 11, eff. 12/26/42. 2. Amend. 34, Rev. Tire Rationing Regulations, eff. 10/1/42. 3. Amend. 27, eff. 9/16/42. 4. Amend. 11, R.O. 11, eff. 12/10/42. When a hostile member of the industry received his copy of this amendment, he took that occasion to have the amendment reprinted in a trade magazine along with some very sarcastic remarks. 5. Amend. 57, R.O. 11, eff. 3/30/43. 6. Amend. 37, Rev. Tire Rationing Regulations, eff. 10/13/42.· 7. See, for example, Amend. 37, R.O. 3, eff. 2/1/43. 8. Amend. 77, R.O. 11. 9. Section 210, R.O. 17. 10. Amend. 35, eff. 9/7/43. 11. Such as Ration Order 17 and Procedural Regulation 12. 12. Section 10, Control Order No. 1, eff. 4/30/45. 13. Section 1394.5707^.0.11 as amended by Amend. 18 (12/24/42). 14. Section 1407.21 (c) (27), R.O. 3. 15. Amend. 58, 3/29/43. 16. Section 1394.5354(a), R.O. 11 as amended by Amend. 42, eff. 3/10/43· 17. Amend. 80, eff. 9/15/43. Chapter 15.

MAKING T H E RULES KNOWN

1. Section 1315.4043(d)(4), Rev. Tire Rationing Regulations. 2. Section 1315.401a, R.O. lA. 3. Section 1315.601(b), Rev. Tire Rationing Regulations. 4. Section 1407.71(a), R.O. 3, added by Amend. 59 (5/10/43). 5. Section 1394.770(d), Rev. R.O. 5C. 6. Section 1394.5402(a), Rev. R.O. 11. 7. Section 1315.405(d) (1) and (2), Rev. Tire Rationing Regulations. 8. Paragraph 114 of the shoe section of the local board service. 9. Paragraph 451 of the sugar section of the local board service. 10. Paragraph 683 of the gasoline section of the local board service. 11. Late in 1944, some rationing officials were surprised to learn that permission had been given to the printer of the board service to offer it for sale to the public. These officials were surprised because it seemed to them that the rationing department might wish to keep a few of its in-

460

NOTES

MAKING THE RULES KNOWN

structions to local boards restricted if not, indeed, confidential. T h e board service was not a bestseller. 12. Amend. 22, Rev. R . 0 . 1 1 , eff. 8 / 2 1 / 4 4 . 13. Section 1394.5353(3) and ( b ) , R.O. 11.

Index Accountants, gasoline for, 98, 100, 120, 445 Adjustments, of food inventories and allotments, 61-63, 2 3°> 29*>> 362-63, 386, 402, 456 Administrative feasibility, 198, 233, 286, 289, 290, 292, 297 A F of L Labor League for Human Rights, gasoline for, 96 Amateur fishermen, gasoline for, 93 Amateur hunters, gasoline for, 9 3 , 9 6 , 1 1 1 , 222-24 Amateur salmon fishermen, gasoline for, 87.93 , „ . American Baptist Home Mission Society, gasoline for representative of, 444 American Cyanamide Corp., gasoline for representatives of, 91 American Foundation for the Blind, petition for gasoline of, 1 1 7 , 124 American Kennel Club, 1 1 7 American Legion, 246 Annotations method of instructing local boards, 397-406 Anti-discrimination rule, in petroleum rationing, 260-61 Appeals, administrative, 212, 227, 229, 332*33< 334' 4 1 2 1 3 ' 4 2 0 " 2 1 Apple growers, pressure from, 164-65 " A " rations, gasoline, 80, 222-23 Army dogs, gasoline for procuring, 11718, 124, 133 Athletic competition between schools, gasoline for, 89-90, 100 Attorneys, gasoline for, 92, 102-3, 123, 1 2 3 "33 Automobile eligibility list, 161 Automobiles, sales to government agencies, 166 Baby food manufacturen, meat allotments for, 363 Bacon rind shoes, de-rationed, 200 "Bail-out": of sugar dealers, 24; of fuel oil dealers and suppliers, 51-53, 231, Bant officials, gasoline for, 110, 132-33 "Bare shelf" policy, in food rationing, 259

Baruch, Bernard, 167, 344-45 "Basic English," 276, 383 Basic ration, 27, 37, 222-23, 345 Battle of the Bulge, 251 Bedbugs, fuel oil for lulling, 67 Blue Cross, gasoline for, 124, 125, 127 Bluff, as rationing technique, 31, 48 Bowles, Chester, 165, 172, 185, 237, 238, 251, 252, 253, 263, 268, 269, 272, 450 Boy Scouts of America, gasoline for, 93 " B " rations, gasoline, 69, 80, 97, 98, 206, 223, 250 Brooklyn Gas Co., 260 Brown, Prentiss, 168-71 Bulk purchasers, of gasoline, 12 Bureau of the Budget, 60, 188, 1 9 1 , 255, 262, 268, 273-85, 3 1 1 , 3 1 3 Buyers of farm products, gasoline for, 173 Byrnes, James F., 259, 264, 265, 268, 270 Cancellation orders, 339 Canners' point-setting committee, 63-64, »57 Car clubs, 381, 414 Card rationing, of gasoline, 344, 352, 438 Carnation Co., gasoline for salesmen of, 118-19 Casket manufacturing, essentiality of, 96, >33 Certificates of War Necessity, 92-93, 257 Certifications: of heating engineers, 29, 45' 375; doctors, 45-46; of government supervisors, 46, 440; as delegation, 439 Chain store buyers, gasoline for, 98, 1 1 0 Chain store supervisors, gasoline for, 99, 125, 128 Chicago Powdered Sugar Mills, sugar for, 183-85 Children's allowance, in fuel oil rationing, 220-21 Children's Theatre of New York, gasoline for, 94 Christian Science Practitioners, 222 Churches: fuel oil for, 241; gasoline for attending, 93-94, 100 Church organization work, gasoline for, 97

462

INDEX

C I O W a r Relief Committee, gasoline for, g 6 " C l e a n - u p " amendments, 1 9 4 Commercial camp shows, gasoline for, 103, 123 "Committees of neighbors," local boards as, 33, 38 Commodity Credit Corp., îoq Conservation, 3 1 , 47, 196-97, 2 5 7 , 2 7 1 ,

444 Consumer declaration of rationed goods on hand, 1 8 6 , 102-93, 1 9 9 , 377-78 Conversion, from niel oil to coal, 182-83, 1 9 6 , 260 Cooking and lighting, fuel oil for, 19596, 370, 388, 436 Counterfeit coupons, 23-25, 2 3 2 , 4 1 7 - 1 8 C o u p o n credit: fuel oü, 1 4 , 20-22, 28, 39-40, 4 1 , 5 1 - 5 3 , 2 1 6 - 1 7 ; gasoline, 403; sugar, 208-9 Coupons: values of, 1 2 , 1 3 , 32, 55-56, 1 9 2 , 252, 339, 3 5 2 , 3 5 3 , 3 7 2 , 436; strip, 195-96, 374-75; expiration of, 2 0 2 , 204, 2 5 1 , 252, 2 5 3 , 2 7 2 , 442 " C " rations, gasoline, 80, 1 3 3 , 1 7 3 , 206,

"3

Davies, Ralph K., 2 6 1 , 263 Debiting program, 23-25, 2 3 2 , 4 1 7 - 1 8 Delinquent accounts, fuel oil, 20-22 Department of Agriculture, 4, 68, 87, 88, 2 1 0 5 , 106-7, 1 1 0 > 1 M > * 4 3 ' ^5> 2 7 1 , 446, 449 Department of Commerce, 239 Department of Interior, 4, 87, 9 3 , 1 1 5 , 256, 2 7 1 , 2 7 2 Department of Justice, 1 1 5 , 263 Deposit of rations with dealers, 2 1 0 - 1 1 , 228-29, 2 3 ° De-rationing: of residual oil, 32, 198; of food, 54, 2 5 1 , 259, 269, 2 7 1 , 304-5, 306; of shoes, 200 Differential rationing, in fuel oil, 241 Distributors' point-setting committee, 6364. 1 5 6 - 5 7 „ Doctors' certifications, 45-46 Doctors, eligibility for tires, 2 2 1 Driving to summer homes, gasoline for, 128 D r u g delivery, gasoline for, 83, 9 5 Emergencies, public, 4 1 - 4 3 , 3 3 5 Emergency deliveries, of fuel oil, 28-29

Entertaining veterans, gasoline for, 85, 246-47 Evangelists, gasoline for, 97 Exchange certificates, 205, 209, 2 1 6 Exchange of coupons, in fuel oil, 29, 205,

44-

Exchange of fuel oil, 224 Farm auctioneers, gasoline for, 98 Farm Credit Administration, 1 1 2 Farmers Union, gasoline for, 85, 1 6 3 , 167-72, 233-34, 3 ° 4 Father [Brown], gasoline for, 86, 1 6 7 , 304 Federal Bureau of Investigation, 2 3 , 1 1 0 Feed company representatives, gasoline for, 7 5 , 1 0 5 , 106-7, i i o - i i , 3 6 5 , 447 Fertilizer salesmen, gasoline for, 87, 88 1 0 5 , 446 Firewood, rationing in Pacific Northwest 276 Fish net salesmen, gasoline for, 1 0 5 , 1 1 5 16 Flow-back technique of rationing, 1 9 1 4 3 , 205, 2 1 6 , 255-56, 259-64, 266 290, 293, 294 Food adjustment policy committee, 6 1 6 3 , 296 Forms: lack of, 1 8 9 - 9 1 , 2 8 1 ; program 274, 279-80, 2 8 1 - 8 3 ; statistical, 274 279, 281-83 Formula for fuel oil rationing, 3 5 , 220 2 1 , 380 Funerals, gasoline for attending, 1 7 , 81 84, 86, 96, 1 0 0 , 1 3 3 Fur farmers, gasoline for, 1 1 1 G i f t s of rationed food, 201-2, 307, 342 Ginsburg, David, 265 Government contractors, gasoline for, 1 0 9 Government mileage administrators, 46-

47 Government Printing Office, 300 Government supervisors' certification, 46, 440 Grain elevators, gasoline for area supervisors of, 99 G u m m e d sheets, 2 3 , 2 1 3 , 2 1 5 - 1 6 , 4 1 1 Hardship quota, in gasoline rationing, 161 8 , 443 Hardship ration, fuel oil, 3 1 , 3 7 , 42, 7 2 , 205-6, 229, 338, 363-64, 3 8 1 , 382, 3 9 3 , 412-13,414 ' Hartley Committee, 166, 448

INDEX Healing professions, gasoline for, 72, 1 0 1 , 1 2 9 , 222, 448 Hearing Commissioners, 7, 207, 357 Hearing devices, gasoline for salesmen of, Heating engineers certification, 29, 45, Heating periods, in fuel oil rationing, 5556 Henderson, Leon, 66, 238, 258, 264, 266, 283, 309, 450, 454 Hide buyers, gasoline for, 1 0 5 , 1 1 1 - 1 2 Hoarding, 192, 1 9 3 , 253 Home canning, sugar for, 40, 190, 192, 198-99, 3 1 8 , 370-71, 392-93 Home Owners Loan Corp., 87 Home-to-work driving, gasoline for, 697°- 7 2 > 73 "Horror story," 28, 238 Hospital equipment salesmen, gasoline for, 1 1 4 - 1 5 , 447 House Select Committee to Investigate Executive Agencies, 1 6 5 House Small Business Committee, 225, 448 House trailers, 37, 178 80, 1 9 1 , 340; fuel oil for, 380, 391 I C C permits, for "emergency reserves" of tires, 1 1 Ickes, Harold, 1 7 1 , 256, 262, 263, 264, 268, 270, 2 7 1 , 272 Imperial Valley, gasoline for inhabitants of, 1 2 5 Industrial users of food: allotments, 1 1 , 19-20, 38, 54-55, 61-63, 129-30, 18385, 2 1 7 , 232, 270, 276, 338-39, 402, 437; base period, 1 1 , 19, 6 1 , 129, 1 8 3 , 275; registration of, 19, 183, 369; reregistration of, 22-23, 54-55. 333. 334" 35; inventories, 54, 2 1 7 , 232; new businesses, 183-85, 242-45, 440; adjustments, 295-96, 362-63, 456 Infants' shoes, special problem of, 1 5 1 , 3>7 . Injunctions, 7, 184, 209, 2 6 1 , 357 Installment collectors, gasoline for, 239, 444 Installments, rations issued in, 26 Institutional users of food: allotments, 38, 61-63, 1 8 3 , 345-46; base period, 6 1 , 183; new businesses, 183-84; registration of, 1 8 3 ; adjustments, 295-96; reregistration of, 334-35

463

Insurance adjusters, gasoline for, 70, 7 5 Inter-American Defense Board, relaxation of pleasure driving ban for, 2 0 1 , 3 1 7 Interstate Commerce Commission, 1 1 , 162 Inventories, of dealers and wholesalers, 24, 44, 61-62, 165-66, 276-79, 3 1 1 , 340-41, 350, 367-68, 453 Inventory check, 1 2 , 1 3 , 14, 2 1 4 - 1 5 , 217>9- 277 79. 367-68, 453 Inventory freeze, 46, 48-49, 378 Japanese Relocation Centers, 444 Jeffers, William M . , 1 7 1 , 265 Labor Office, of O P A , 454 Labor union representatives, gasoline for, 86, 163, 168, 169, 170, 1 7 1 , 333-34 Lost coupons and stamps, 194-95, 334, 388 Lost ration-book problem, 29-30, 1 9 1 , 2 3 1 Mal distribution of petroleum, 260-61 Merchant Marine: gasoline for furloughs, 85, 163, 304; fur-lined vests for, 1 1 1 Merchant patrols, gasoline for, 95 Merchant seamen, gasoline for, 365 Michigan Music Co., gasoline for installing " M u z a c , " 93 Military dumping of food, 2 5 1 , 259 Military furloughs, gasoline for, 1 7 , 245, 247, 248-49 Milk cans, fuel oil rations for cleaning, 67-69, 72-73 Ministers: gasoline for, 97, 1 3 2 - 3 3 , 222, 2 4 1 ; tires for, 221 Miscellaneous uses, fuel oil for, 73-74, 393 94 Mississippi "Auxiliary Highway Patrol," gasoline for, 87 Mixed premises, problem of in fuel oil, 309 Motion picture films, gasoline for distributing, 105, 1 1 2 - 1 3 , 126 Moving to a new address, gasoline for, 80 Multiple purpose stove problem, in fuel oil, 4 1 1 - 1 2 National Education Association, 1 1 2 National Federation of Settlements, 1 2 5 National Foundation for Infantile Paralysis, gasoline for regional directors of, 117. 133 National Research Council, 1 0 1 , 246

4θ4

INDEX

National War Fund, gasoline for state directors, 96, 120-21 Navy Department, 75, 77, 90 Nelson, Donald M., 6, 256, 262, 263, 264, 268 New businesses: in food rationing, 62-63, 183-85, 242-4;, 440; in stove rationing, 440; for veterans, 242-4; New occupant problem, in fuel oil rationing, 25-26 Newspaper reporten, gasoline for, 94, 443 Occupational rations, food, 180-82, 36667 Official government mileage, 46-47, 87, 101, 241 Office for Emergency Management, 6 Office of Civilian Requirements, 257, 258, 262, 266, 272, 279, 317 Office of Defense Transportation, 4, 77, 90, 92-93, 94, 105, 113, 143, 169, 191, 258, 262, 272 Office of Economic Stabilization, 161-63, 251, 259, 265, 268, 269, 270 Office of Price Administration and Civilian Supply, 6 Office of Production Management, 5 Office of the Rubber Director, 79, 85, 118-19, 257, 264, 272 Office of War Information, 105, 113, 116, 253 Office of War Mobilization and Reconversion, 269, 270, 271, 272 Oil lease negotiators, gasoline for, 88, 200-1 Packaging problem, in sugar, 13 Petroleum Administration for War, 4, 32, 88, 93, 98, 105, 146, 151, 198, 200, 250, 256, 257, 260, 261, 262, 263, 264, 266, 267, 268, 269, 270, 271, 272, 313, 449, 451, 452 Petroleum rationing policy committee, 262, 263 Petroleum sub-committee of the House Naval Affairs Committee, 451-52 Petroleum supervisors and field men, gasoline for, 98, 99, 105 Photographers, gasoline for, 83, 94 Plant transportation committees, 47, »73-74. 38», 4 M Pleasure boats, oil for, 444

Pleasure-driving ban, 128, 167, 201, 317, 352'53> 3 8 6 Point prices, in food rationing, 63-64, 156, 157, 164, 230, 252, 315-16 Political candidates, gasoline for, 100, 241 Polls, gasoline for going to, 100, 241 Population turnover problem, 25-26 Power generating plants, fuel oil for, 38 "Preferred eligibility" for gasoline, defined, 79, 80 "Preferred mileage" in gasoline rationing, defined, 80 Preserving milk, sugar for, 44 Press releases (and pessimism re supply), 3 1 '3 2 » 2 7» Pretailonng, in fuel oil, 209-10, 231 Prison guards, gasoline for, 107 Products of the blind, gasoline for selling, 124 Program forms, 274, 279-80, 281-83 Public accountants, gasoline for, 100 Railway claim agents, gasoline for, 94, 98, 102, 105, 118 Ration banking, 3, 13, 14, 23-24, 202-3, 233, 277, 288, 289, 294, 295, 307, 308, 326, 335, 385, 417 Ration Book One, 15, 29-30, 185, 19;, 193, 199, 441 Ration Book II, 186, 193, 199, 283 Ration Book IV, 251 Ration Book registration sites, gasoline for travelling to, 92 Ration Books, issuance of, 49-50, 542, 366, 437 Ration record card, in fuel oil, 372-73 Real estate men, gasoline for, 87, 94 Reconstruction Finance Corp., 166 Red Cross, gasoline for, 96, 117 Refund problem: in shoe rationing, 183, 383; in fuel oil, 205 Registration, of dealers and suppliers, 13, 48-49, 369, 370, 440 Repair men, gasoline for, 103, 131 Replacement of ration currency, 29-30, 191, 194-95, 2 3>. 334. 388 Retail deliverv, gasoline for, 92, 365 Retreaders' allotments of camelback, 5051, 188-89. 2I4> 39ΐ. 4 î i Retreading of tires, rationing of, 50-51. „ " 4 . 370 Request for program change," 58-59, 319-21

465

INDEX Revocation of consumer rations, 20, 228, *3«-3 2 > 334, , Rural mail carriers, gasoline for, 104, 393 Salesmen, gasoline for, 75, 85, 87, 88, 9 1 , 98, 99, 105, 106-7, n o - i i , 1 1 2 - 1 3 , 1 1 4 - 1 5 , 1 1 5 - 1 6 , 1 1 8 - 1 9 , 123-24, 126, 1 3 2 , 265, 365, 446, 447 Salesmen-technicians, gasoline for, 100 Saloons, fuel oil for, 241 Sampling techniques, 278, 281-82 School supply salesmen, gasoline for, 105, 112 School teachers, gasoline for, 92, 1 1 0 , 447 Secretary of Agriculture, 6, 163, 168, 170, 239, 256 Secretary of Interior, 256 Secretary of War, 106, 162 Seed buyers, gasoline for, 88, 89, 1 0 5 Senate Small Business Committee, 166, 273, 280, 2 8 1 , 283, 452 Senate Special Committee to Investigate the Gasoline and Fuel Oil Shortages, 28, 225 Sheepherders, food rations for, 181-82, 353 54 Shoppers' service, rations for, 105-6, 162, 341-42 Shortage areas: solid fuels, 43; fuel oil, 338, 385; gasoline, 352-53 Sick people: gasoline for visiting, 1 7 , 84, 86; additional fuel oil for, 197 Signatures, on applications, 2 1 0 , 230 Slaughter control, 270, 383 Slow moving stock problem, in shoe rationing, 3 1 6 , 3 1 7 , 455 Smith Committee, 165 Social workers, gasoline for, 96, 1 1 7 , 124, 127, 1 3 3 Society of Friends, gasoline for, 70 Solid Fuels Administration for War, 4, 1 3 8 , 1 4 5 , 439 Space heater rations, fuel oil, 35-36, 4142, 220-21, 364 Spare tires, 1 0 Special rations: gasoline, 16, 72, 80-81, 84, 206, 2 4 1 ; shoes, 316, 401-2 Stamp cancellation, food, 250-54 State and local government officials, gasoline for, 100-1, 241 Statistical forms, 274, 279, 281-83 Steuart, L. P., and Bro., Inc., 456 Stolen coupons, gasoline, 23-24

Stove rationing, as stove sales campaign, l 96-97 Summer cooking, fuel oil rations for, 249, 349 Summer fill-up, in fuel oil rationing, 150, 206, 349 Sunday school superintendents, gasoline for, 97 Supplemental ration, 27, 206, 222-23 Suspension orders, 7, 165, 227, 228, 334, 356-58, 367 Tax accountants, gasoline for, 98, 100, 120,445 Taxicabs, tires and recapping service for, 1 1 9 » 379 Terminal leave, gasoline for officers on, 248 Therapeutic treatment, special gasoline rations for, 72 Timing, of releases, 188-89 Tire inspection and maintenance services, gasoline for, 76 Tire inspectors for OPA, gasoline for, 02 Tire inventories, distribution of, 44, 16566, 340-41 Tire stockpile, 10, 340 Tires: eligibility list, 1 0 7 - 8 , 1 6 1 , 222, 241, 370, 390, 3 9 1 , 4 0 1 ; local board quotas of, 222, 369, 372, 391; original equipment problem, 3 7 1 , 392 Tobacco curing equipment, fuel oil for,

7l

Tokens, ration, 64, 2 5 1 Trade associations: American Bar Assn., petition for preferred mileage, 92, 1023; American College of Surgeons, gasoline for field staff of, 9 1 ; American Farm Bureau Federation, 169, 170, 1 7 1 ; American Hospital Assn., 114; American Medical Assn., 1 1 4 , 246; American Surgical Trade Assn., 1 1 4 ; Animal and Poultry Foundation of America, 365; Atlantic Coast Oil Associations Conference, 144; Brewing Industry Foundation, gasoline for field investigators of, 95, 144; National Association of Independent Tire Dealers, petition of, 92, 107, 365; National Automobile Dealers Assn., 145, 448; National Board of Fire Underwriters, gasoline for special arson agents of, 95, 1 1 0 ; National Canneis Assn., 449; National Committee for Farm Production

4 66

INDEX

Trade associations (Continued) Supplies, gasoline for, 172; National Restaurant Assn., food rationing advisory committee started by, 155-56; National Retail Furniture Assn., 23g, 444; National Shoe Retailers Assn., 453; New York Harbor Committee, 146; Oil Heat Institute of America, 144; Petroleum Industry War Council, 98, 105; Rubber Manufacturers Assn., 143; Window Shade Institute, 444 Transfer rule, in fuel oil, 384-85 Treasury Department, 1 1 0 Truman Committee, and fuel oil rationing, 28, 166, 264 Twohey Analysis of Newspaper Opinion, 2 53 Underprivileged children, gasoline for taking to summer camp, 125, 127, 1 3 1 , 1 33 United States Employment Service, 246 United States Office of Education, 8990, 105, 110, 1 1 2 Used automobile parts buyers, gasoline for, 105, 1 1 3 Veterans: discharge rations, 85, 108, 24250; gasoline for entertainers of, 85, 246-47; eligibility for new automobiles, 93; opening new businesses, 242-45; case, 242-50; disabled, 242-43, 247, 249; terminal leave, 248

Veterans Administration, 93, 96, 246, •11 Veterans of Foreign Wars, 247 Vérification centers, 23, 417 Victory gardens, gasoline for travelling to, 70, 87, 88, 443 Volunteer salvage workers, gasoline for, 88, 91, 109, 1 1 9 Volunteers on local boards, 34 War Department, 75, 90, 106, 1 1 1 , i6i Warehouse facilities, essentiality of, 77 War Food Administration, 4, 6, 77, 105, 143, 162, 163, 166, 251, 256, 257, 259, 262, 264, 268, 269, 270, 271, 272, 305, 3 l 3» 44 6 War Labor Board, 109 War Manpower Commission, 77, 246, 2 49 War Production Board, 4, 5, 6, 57, 85, 10 88-89, 9 1 ' 10 3> 9> X 1 1 > l l 3 ' 114, 1 1 5 , 119, »43, 196, 197, 200, 255, 256, 257, 258, 261, 262, 263, 264, 265, 267, 268, 271, 272, 279, 447- 449 Washing milk cans, fuel oil ration for, 67-69, 72-73 Week-end travel, for war workers, 12122 - *33 Wickard, Claude, 168-71, 256, 265, 266 Wisconsin canners, pressure from, 449 Zoning orders, in sugar rationing, 339