sidered to present any risk, under this language then, the new agency would stay out of that field.

But if you had a situation where the Department of Transportation had been busy setting standards for various kinds of pipelines and they had not gotten around to Fiberglas pipelines yet, although they intended to, and the new agency might figure they were too slow, like certain people have claimed some standard setting under the Flammable Fabrics Act has been too slow, as I read this, the new agency could get into the pipeline safety field.

Then what would happen when the Department of Transportation did get around to setting standards or talking about setting standards for that particular kind of a pipeline?

It seems to me quite unclear as to whether the new agency would completely supersede the original agency, if it set a standard, or whether there might be competing standards, or whether the new agency standard might be only an interim one. I can see this happening under a number of these exceptions.

MOTOR VEHICLE REGULATION

The case of the minibikes has been mentioned. Let us say you had a more dramatic example of a motor vehicle-a bulldozer. What if the Department of Transportation hadn't gotten around to the safety regulation for those? Then if this new agency set such a standard, an interim standard, would it put this new agency into the motor vehicle safety field?

I, myself, feel it would be much better to have a complete exemption of things that are capable of being regulated by the other agency, whether or not a new agency might think they have been too slow in getting around to it.

Senator HARRIS. Well, first of all, I personally like the idea that the new agency might prod the existing agencies on some of these things. But aside from that personal feeling on my part, why wouldn't the objection you raised about the possible overlapping be taken care of by subsection (A), capable of being regulated by the existing agency?

Mr. DAY. Well the word that ties (A) to (B) is "and" and not "or." It must both be capable of being regulated and it must be either actually regulated or the other agency has decided that there is no risk.

That case I was talking about is one such as you might have with flammable fabrics where an agency may have taken longer than some people might wish in actually setting standards for particular items. Maybe that agency has good reason for doing so, but under this you could get competition between agencies. My feeling, as a matter of good Government organization, it is better to have the oversight from the Senate and House committees than it is from another agency. I don't think that good government is advanced by sniping and rivalry and one-upmanship among agencies, who on the face of it have coequal authority.

Senator HARRIS. It may be because of our special experience, yours in the executive department and mine in the Congress, that each wants the other to regulate it.

AGENCY COMPETITION

I think it would probably be better if there was a little competition among agencies. I think, as I said in yesterday's hearings, the tendency is for those being regulated to wind up in charge or controlling those that are supposed to regulate them.

I don't think that competition necessarily would be bad; I think usually it would turn up to the best interests of the consumer, again from that personal view of mine.

Suppose that we put in the alternative instead of "and" at the end of subsection (A), put "or"?

Mr. DAY. I think that would solve the problem.

Senator HARRIS. Of course, you are against establishment of a new independent Product Safety Agency and, as I understand your position, it is that those functions ought to remain in HEW; but surely you would agree there has been rather wide recognition that product safety regulations ought to be strengthened; and I wondered, do you have any specific suggestion whether you agree with that, and if so, whether you have any specific suggestion how that might be accomplished within the Department?

Mr. DAY. Yes, I think by giving specific statutory authority to the Product Safety Office, which is now on a rather small scale in HEW, giving them adequate funding and giving them access to their own technical and engineering input to the extent they need it themselves, and also to the technical and engineering input that already exists within HEW.

I thought that there was a good deal brought out yesterday in connection with the dialog between Senator Javits and Mr. Elkind about how you really achieve much by calling an agency by a different name and giving it a new statute. If you are frustrated with bureaucracy as such, how do you know these new people that come in at the top of this new agency are going to be immune from these defects which are charged to existing administrators of agencies such as being perhaps not aggressive enough or fast enough or one thing or another.

I don't think much would be achieved by that. I think that it largely depends on the individuals you happen to get in the jobs, and there isn't an oversupply of them, and I don't think you are necessarily going to get perfection in this new agency.

Mr. Elkind, of course, is a very capable man, but he has already changed his mind on the organizational approach to this thing. His Commission recommended an independent commission of five members similar to the Federal Trade Commission, or something of that kind, and he recommended leaving most of these existing product-safetytype laws on the books.

Now, he has himself-and I don't know whether any other members of his Commission have but he has himself changed over to endorsing this new apprach of an agency with one man at the head of it. I don't think there is any one easy answer, and I think he has recognized that in his adjustability to a different approach.

Senator HARRIS. But he hasn't wavered on the idea of a separate agency.

Mr. DAY. No, he hasn't. Mr. Elkind seems to be of that school who thinks there has been a good deal of slowness and laxness in some of

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this Federal Government product safety work. As I say, I think it varies with the people in charge.

There was talk for years of so-called laxness of the Federal Trade Commission. You happened to get a new Chairman there and the thing suddenly has come to life, and it is bubbling with all kinds of activity and I think anybody who would say that agency is in the pocket of industry now needs their head examined.

STUDY ON 100 CORPORATIONS

Senator HARRIS. That is not as tough as I wanted it to be; I think they have made some changes. They have got a study down there now on the top 100 corporations in America that I wish they would turn loose. It says quite a bit about the way they operate and the way the consumers' interest and others' interest is not being protected.

I think the staff is a pretty good staff. I am not sure the Commission is as active as they ought to be.

Let me say this about what you have said. You seem to think it was a good idea that Mr. Elkind put forward some kind of a mandatory termination date. Don't you think that would apply generally to what you have said? I think there is merit in change itself. I think that bureaucracy in agencies are naturally not self-renewed and revolutions are not naturally continuing in nature. They have a tendency to sort of run out and movement begins to serve those who are involved in it. Another thing I might ask you to comment on, as well as what I have just said, is the widespread belief, which I tend to share, that HEW already has more than it can say grace over in functions and responsibilities and doesn't particularly need these strengthened or expanded responsibilities.

Do you care to comment on any or all of that?

Mr. DAY. Well, I agree with you about how revolutions tend to peter out and that sort of thing, but I think as far as approaches to avoiding the drawbacks of bureaucracy, they shift from one extreme to another.

When people wanted to get more efficiency over in the Pentagon the idea was to force everything under one head and make it even bigger and have unification. Now when people are frustrated about the speed and effectiveness of consumer activities they seem to want to not only fragmentize but they want to make it immune from Budget Bureau restraints, from civil service restraints, and from other things that are sort of part of the system.

I think that it is better to let the head of an agency set up the details of how its work is organized rather than have it set out in detail in a statute and I feel if these agencies are fragmentized all you are doing is moving the coordination and control function even more directly up into the White House and you are going to end up with a tremendous big bureaucracy over there with a Kissinger for every department.

FUNDING

Senator HARRIS. How would you say that, you are talking about HEW has to go through the White House for its money. What we

are talking about is an agency in the bill that would come directly to the Congress, you said you trusted Congress more for these matters than the executive department.

Mr. DAY. They still have to go to the Budget Bureau, this new Agency would. There is more to coordinating activities than merely getting money and there was a good deal of discussion here yesterday which to be confirms what I feel are certain advantages in getting money if you are big. The small independent agencies get much more support in their legislative committees than they do in their appropriations and some of them in my opinion are really starved to death for appropriations.

There is also a big tendency now to ask them to raise their own. money from their own fees and not even get any money out of general tax revenue. I think a big agency has an advantage in getting money. Senator HARRIS. Let me say a couple things about that.

First, one reason why these agencies haven't been so successful in getting money is indicated by the Federal Communications Commission's A.T. & T. study. You will recall they said they didn't have sufficient money to do it. As it turned out, they never came to the Congress with it. If they had requested it, cleared it through the Office of Management and Budget to the Congress, they might have received the necessary money. But no clear case had been made to the Congress that they needed money because they were in the straitjacket of the clearance requirement through OMB.

Second, I would say about some of these regulatory agencies, I think if they demonstrated they were a little more interested in regulation rather than going along with the industry they are involved with, Congress might take a greater interest, and that is what we hope to insure with this new agency if it is to be established.

TRADE SECRETS

Let me ask you another thing. I am troubled by your suggestion that we ought to broaden the type or the division of the type of information which the agency could disclose, because it seems to me what you are suggesting is that-I understand about trade secretsI understand what your objection is concerning this kind of information, but what worries me about it is that you seem to be suggesting more by saying that information should be protected which falls into the category of "commercial or financial information obtained from a person as privileged or confidential".

Wouldn't that pretty much leave in the hands of the supplier of the information whether or not it is to be secret, and if so, you mentioned some other laws, I believe. There are other statutes which allow the furnisher of information to classify it.

Mr. DAY. Yes; there are two principal ones. The statute which is referred to in the bill, 1905, which is an old statute on disclosure of confidential information by Government personnel, refers to trade secrets, processes, operations, style of work or apparatus or the identity, confidential statistical data, amount or source of any income, profits, losses or expenditures of any person, firm, partnership, corporation, or association.

Senator HARRIS. You admit that is considerably narrower than the language which you suggested, it seems to me it is.

Mr. DAY. The type of thing that we are concerned with, Mr. Chairman, is that we feel the purpose of this agency is to try to get all of the information it needs to carry out its function of setting standards and enforcing them. It wouldn't be, it shouldn't be getting information just as a general Government statistical and information bureau, but it should get what it needs in order to know what the volume, what the costs are, the other things that it will need under this bill, without those having to be handed out to the competition.

INFORMATION LEAK

In this business for example, the television manufacturing business, as in a number of other highly competitive manufacturing businesses, the specific figures on the sales volume of a particular company and number of receivers manufactured and sold in a year is a very closely held secret and we had problems with the Product Safety Commission over this thing.

They got that information and put a code on it and, as the IRS said about the income tax return, a fifth grader could have figured out that code which they promptly did, so all of that information leaked out.

Now, under the stockpiling provisions of this bill, under the economic feasibility provisions, it will be necessary to know data on volume produced, on costs, those things we feel should be kept within that Agency for its own use and not handed around for extraneous competitive purposes.

It is not a matter on trying to hold back on what we furnished to the Agency or make it difficult for them to carry out their function. It is just to confine it to that relevant purpose and not have it get out for other purposes.

Senator HARRIS. I recognize your objection there, but I think your language proposed is much too broad in allowing the decision to be made by someone other than the Agency, it seems to me, is objectionable.

Mr. DAY. That is somewhat of an open question right now under the Freedom of Information Act as to whether the designation, by the persons who would be furnishing the information, as being confidential is something that has to be honored under subsection (4) of the exceptions in the Freedom of Information Act or whether it doesn't. So that point isn't settled but that is what we are driving at. Senator HARRIS. One last question.

CITIZEN POWER TO SUE

You object to the power given citizens to sue the Agency. It happens to be, as I said yesterday, a provision I like a great deal, to keep the Agency moving in the direction Congress intended.

I am informed that Wednesday of this week the Supreme Court sanctioned just such suits by individuals, by citizens in environmental disputes, and I wonder why it shouldn't have the same kind of powers