by protecting consumers against injury resulting from the use of foods, drugs, devices, and consumer products as defined in the bill. Title II would transfer to the new Agency all functions of the Secretary of Health, Education, and Welfare which are presently administered through the Food and Drug Administration or through the Division of Biologics Standards of the National Institutes of Health. It would also repeal several consumer safety laws directed at certain classes of products or hazards, which would be replaced, under title III, with a single, comprehensive, product safety program capable of reaching any consumer product, as defined in the bill, presenting an unreasonable risk of injury.

Among other things, title I of the bill places special emphasis on three particular matters:

Maximum dissemination of information to and access to information by the public (sections 108 and 113),

Comprehensive collection of information on occurrences that produce injury, which will enable the Agency to better identify products and conditions needing regulatory attention (section 109), and

Comprehensive reporting to the Congress on the need for, availability of and use of resources, and on the specific activities and accomplishments of the Agency and each of its major components (section 112).

MORE ON PESTICIDES

Each of these tends to enhance the visibility of the Agency's mission and activities and thus the accountability for their proper conduct. On the basis of our work, we believe this is appropriate and important. For example, in our work in pesticides regulation we found that the Agricultural Research Service, which really didn't have adequate resources to do the job, had not taken action over a period of 13 years to prosecute violations of pesticide laws even where it found repeated major violations. Also, misbranded, adulterated, or unregistered products remained on the market and available to consumers for years after ARS had found them to be in violation.

SANITARY CONDITIONS IN FOOD PLANTS

In our recent review of sanitary conditions in the food manufacturing industry, we found that the resources available to the Food and Drug Administration in relation to its enforcement responsibilities were clearly inadequate. Also, FDA had no system for effectively accumulating and analyzing consumer complaints to assist in identifying products or facilities needing increased regulatory attention.

The importance of visibility, Mr. Chairman, suggests an issue which is of concern to this subcommittee and which has been debated in the prior legislative history of this bill; that is, whether the consumer protection function can best be carried out by an agency which has independent status or by a component of an existing Department. The pros and cons of this issue have been pretty well described by other witnesses and it is largely a matter of judgment, upon which opinion can differ, as to which setting is most appropriate.

We believe the important things, in whichever setting is finally settled upon, are a clear commitment by the Federal Government to consumer protection, with adequate resources devoted to the purpose, and competent and aggressive administration of the laws by the responsible officials and agencies. Although these things can undoubtedly be influenced by organizational placement, they probably depend more on public and political concern for the importance of the mission.

We do believe it important that the mission be housed in an agency which is not charged with responsibilities which might conflict with or detract from its willingness to aggressively administer its consumer protection responsibilities. We have suggested this type of situation in our work concerning the enforcement of sanitation standards at meat and poultry slaughtering and processing plants by the Consumer and Marketing Service of the Department of Agriculture, which is charged both with the consumer protection function and with a responsibility to promote the marketing of agricultural products.

Last month the Secretary of Agriculture renamed the Consumer and Marketing Service as the Agricultural Marketing Service, and placed certain consumer protection functions in a newly created Animal and Plant Health Inspection Service. The functions remain, however, in an executive department having a principal mission of serving the agricultural and related segments of industry.

As we understand the provisions of S. 3419, they would leave undisturbed the present consumer protection functions of the Department of Agriculture and their relationship to the activities of the Food and Drug Administration relating to foods, which would be transferred to the new agency. The subcommittee may wish to consider whether these functions should also be included in the new agency, for the purposes of both enhancing independence and consolidating similar functions to permit flexibility in use of resources and elimination of overlapping activities.

We note, as mentioned here this morning, that S. 1432, which would implement part of the President's proposal for reorganization of the executive branch, would place the food inspection functions of both the Department of Agriculture and FDA in the proposed Department of Human Resources.

"CONSUMER PRODUCT"

In a somewhat related vein, we note that products subject to safety regulations under the Federal Insecticide, Fungicide, and Rodenticide Act, now regulated by the Environmental Protection Agency, are specifically excluded from the definition of "consumer product" included in section 101 of the bill. Many of the products coming within the purview of that act are produced and marketed for use in or around households.

Also, the bill would repeal the Poison Prevention Packaging Act of 1970, presently administered by the Food and Drug Administration, which was intended to serve to protect against accidental poisoning and other injury from toxic agents such as pesticides. Accordingly, the subcommittee might consider whether pesticides marketed for household use should be included within the definition of "consumer product.”

We would like to comment briefly on the organizational structure of the Agency contemplated by the bill, which is somewhat unique. The Agency would be headed by an administrator, appointed for a fixed term of 5 years. It would contain three Commissions, each headed by a Commissioner who would be appointed by and serve at the pleasure of the President, having certain responsibilities with respect to foods and nutrition, drugs, and product safety respectively. We are not aware of any particular advantage which would derive from having the Administrator and the commissioners serve under different terms of office. It is possible, however, particularly since the 5-year term of the Administrator would generally overlap changes in administration which will occur, that the differences could on occasion prove to be detrimental to the proper administration of the Agency. The subcommittee may wish to consider whether, if the Administrator is intended to have the degree of independence indicated by his fixed term of office, the commissioners might better be appointed by the Administrator and serve at his pleasure or until removed by him for good cause shown. We note that the positions of Director of the Office of Consumer Information and Representation and Director of the National Injury Information Clearing House provided for by sections 108 and 109, respectively, will be controlled by the Administrator.

As an alternative, if there is some reason for the Commissioners to have a degree of independence from the Administrator, they might be appointed for fixed renewable terms coextensive with that of the Administrator.

DUTIES OF ADMINISTRATOR AND COMMISSIONERS UNCLEAR

We are also somewhat puzzled by the relationship between the powers and duties of the Administrator and those of the respective Commissioners, and concerned that the bill does not clearly fix responsibility for the overall management and operation of the Agency in the fulfillment of its mission.

The Administrator would among other things, be responsible for coordinating the activities of the three Commissioners, each of which would have certain powers and duties independent of the Administrator either directly by statute or through mandatory delegation from the Administrator, and each of which would exercise such other powers and functions as may be delegated by the Administrator.

Although the Administrator would apparently control all funds and other resources, and thus have some degree of control over the exercise of the independent powers and functions of the Commissions, he would not have direct control. Conversely, although the Commissioners would have powers and functions independent of the Administrator, they would be dependent upon him for the resources and authorities necessary to carry them out. For example, each Commissioner would set safety standards, and, in cooperation with the other Commissioners and as coordinated by the Administrator, establish a capability to engage in risk-based analysis, and establish a scientific capability to assist in hazard detection, test method development, and quality control requirements. But they would not have authority independent of the Administrator to appoint personnel, employ ex

perts and consultants, enter into contracts, construct research and test facilities, and so on.

Unless there is an exemplary degree of cooperation between the Administrator and the commissioners, this situation could militate against the effectiveness of the program.

Rather than assigning the Administrator direct responsibility for some functions and only a coordinating responsibility for others, the assignment to him of direct responsibility and full authorities for the total functions of the Agency, with power to delegate, would seem a better approach.

This concludes my statement. We will be happy to answer any questions you may have.

Senator PERCY. Let me start out by stating to you a conclusion I have reached after 6 years of experience in Government. The most eminent agencies in the Government, so far as efficiency, effectiveness, and service are concerned, include the Internal Revenue Service, which provides the wherewithal and efficiently collects it; the Oflice of Management and Budget, from whom we have just heard, also performs a valuable service; and the General Accounting Oflice which I have found to be a most useful and helpful agency and a right arm of the Congress. I just do not know how we would function without the independent judgment, expertise, and objectivity you put into your work. Your testimony this morning is very helpful, indeed.

You tell us that one important factor in determining program success is to be sure there is no conflict between the purpose of the program and the mission of the Agency.

PRODUCT SAFETY REGULATION

Do you see any potential conflict between product safety regulation and the mission of HEW?

Mr. AHART. I think at any time, Mr. Chairman, you put dissimilar functions of any degree in one agency, there is some degree of potential conflict, particularly in competing for resources. But I think you have that in any program, no matter where it lies, because the reSource requirements all have to funnel through the President.

We are concerned when the conflict is as sharp as in the Agriculture situation. We do not see that degree of conflict within HEW in the product safety field, since one of the principal missions of HEW is the protection of the safety and health of the populace in general.

Senator PERCY. In other words, on that principle, you would object to putting this function within the Department of Commerce, whose purpose is to increase the GNP and turn out goods and services? Mr. AHART. That is correct.

Senator PERCY. You would object in that instance but you do not object in regard to HEW, whose primary concern is the well-being of our society. I concur with that.

CONSUMER PROTECTION PROGRAMS

In your evaluation of consumer protection programs, have you found any relation between program performance and location within a department or independent agency and does this really make a difference?

ORGANIZATIONAL STRUCTURE

Mr. CARLUCCI. Let me say this, Mr. Chairman, with regards to the organizational structure.

We think that there are ways that can be found to upgrade the Consumer Safety Agency within HEW. We do think, at the same time, however, that it is important that these functions continue to be alined with HSMHA and with the National Institutes of Health functions under some kind of common leadership.

Within that kind of framework, we do think some organizational improvements can be achieved, and we certainly would be willing to make some specific proposals to the committee in writing if the committee would like, but I would like to be able to consult with Secretary Richardson at greater length before I do that.

If I may comment on something you said, which we think is very important, and that is: We do not want to simply move boxes around and pretend by moving boxes we have increased effectiveness, if indeed, we have not.

I would like, if I may, the indulgence of the committee for just 1 more minute to point out some of the things that the administration has done by way of increasing the authority and resources of FDA within HEW.

In the first instance, we did help create semiindependent status for FDA by breaking up the old Consumer Protection and Environmental Health Service to create an organizational entity which reported directly to an Assistant Secretary. We have, as you know, changed the top management of the organization, and we have pushed for a more vigorous program and given assurances of continuing support.

FUNDING

As I indicated in my testimony, we have also approved a breakthrough in the budget from $72.3 million in fiscal year 1970 to $192 million in fiscal year 1973.

MANPOWER

In addition, we have dramatically increased the manpower of the FDA in the two most recent fiscal years. We have increased it by 600 in fiscal year 1972, and we have proposed an increase of 1,100 in fiscal year 1973. That increase could be substantially larger if some of the legislation which is presently pending before the Congress in the area of consumer safety is passed.

IMPROVED CAPABILITY OF FDA

So, we think we have greatly improved the capability of the FDA to deal with the problems of consumer safety, but we are willing to consider other organizational changes, and we would be glad to consult with the committee.

Senator PERCY. I do not, in any way, discount what has been done. I tried to make it prefectly clear yesterday that I think there has been no question about the administration's dedication to this, its efforts to back it up and support it, and the eminently qualified, tough