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 Office of Management and Budget, from whom we have just heard, also performs a valuable service; and the General Accounting Office 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?

Mr. AHART. I am not sure I can give you an unequivocal answer to that, Mr. Chairman. Certainly, in the Agricultural Research Service situation, where the pesticide regulation function was only part of its function, it was very low on the totem pole as far as resources and I would have to judge that that was detrimental to that program. I do not think it had a sufficient command of resources.

At the same time, so long as an agency has some stature within a major department, I would not see why it could not have the same kind of visibility that an independent agency might have, so long as it was supported by the President and by the department head, had somebody to fight for it for a fair share of resouces, and had the proper authority so it could make itself visible in carrying out its function.

Senator PERCY. I think it is dangerous to use comparisons to business organizations, but sometimes it is useful. I have always felt that you could gage a company on where it puts its emphasis and by how high the quality control function was.

If it is too far down the line, if they do not have the power and authority to shut down a line, or shut down a production unit, if quality can be overruled by a production manager who just wants to see goods moving and his quotas and schedules filled, then you are going to have trouble.

And the same thing would hold true in Government. And the principle you are adhering to is absolutely right.

On the fundamental organization question before us in these hearings, whether we should create a new independent Consumer Safety Agency or elevate the status within HEW, you say on page 5:

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.

In preparing your testimony, however, you must have weighed the several considerations involved in each plan of organization, and I think we could benefit from having your views. Could you address yourself to that issue?

Mr. Ahart, if you would like to turn to any of your colleagues to have them participate or supplement any of your comments, I would be very happy to have them do so.

Mr. AHART. I certainly will, when the occasion demands it, Mr. Chairman.

POWER TO COMMAND RESOURCES

I think Mr. Richardson, the Secretary of HEW, tried to summarize these issues yesterday. Strangely enough the pros on both sides of the question seem to be about the same. We are all talking about, no matter which way we argue it, visibility, the power to command resources, and so on. I think you commented that Mr. Richardson, the Secretary of HEW, certainly has some clout and interest in demanding resources for this particular function within HEW.

An administrator of an independent agency, if he is the proper one and has the support of the President, could also have that kind of clout and interest.

So in both cases, whether it is in a department or an independent agency, we are talking about visibility, public concern, political con

cern for the function. We have not made a judgment in this particular case as to which way it should go. I think this is properly the prerogative of the Congress and the administration to work out which way it should go.

But the important thing in our minds is the public concern, the political concern, the attraction of a capable man, capable people to carry out the mission. The argument that tends to be similar on both sides of the question is which one would give it most visibility and the most clout.

Senator PERCY. Let me help you to come to a judgment on a point I think is important.

COMMERCE COMMITTEE ACTION

With your special knowledge of the workings of the Congress and the close relationship that you have with the Congress, with the report from the powerful Commerce Committee approved 17 to 1 for an independent agency do you think we have any chance at all of getting the Senate to approve now a reorganization that would simply involve box shuffling within HEW, that would not put real substance behind the imaginative part of this bill-which is really not subject to dispute to put strong emphasis behind the necessity for regulation in these areas?

And don't you feel that if the function is left within HEW, there is going to have to be a major realinement of responsibilities, a real effective realinement, with clout and statutory provisions put behind it, so that we can justify keeping it within HEW as the administration wishes us to?

Mr. AHART. Mr. Chairman, certainly the Senate Commerce Committee has made its judgment plain. We have not had the benefit of this committee's judgment as yet, and I think it is the kind of an issue. which needs to be dealt with in that arena, and I do not think it is one on which I or the Comptroller General are particularly qualified to make a judgment.

If it stays within HEW, certainly I would think there would be a need and I think the legislative history of this bill would certainly prompt action to get it more stature than it has had in the past.

And regardless of which way it goes, I think the deliberation given to the issue and the importance which has been attached to visibility and clout in the agency is going to give the mission more stature, irrespective of which way the final decision goes.

Senator PERCY. I interpret that, then, as meaning your answer would be "Yes" if it is to be kept in HEW, there has to be a major elevation in responsibility and authority.

Mr. AHART. I would think it should be elevated; yes.

REALINEMENT OF FORCES

Senator PERCY. A real realinement of forces rather than box shuffling.

If the consumer safety regulation is to remain in HEW, what facets of independence do you view as most important for assuring an effective program in this area and what should therefore be written into this bill?

Mr. AHART. I am not sure I have any specific judgment on that. Certainly, the comments I made on the internal structure of the agency which would be created by this bill are pertinent here, that whoever has the principal responsibility in HEW should be given the powers and authority which make it possible to hold him accountable for the carrying out of the total mission.

Now, as to the powers which should be given to the Assistant Secretary or Commissioner or Administrator, as the case may be, certainly there is a need, as Secretary Richardson pointed out yesterday, for someone to view the policy decisions of the agency in the context of a broader field than just this particular agency's mission. In the enforcement end of it, I think the comments that have been made about the need to give him clear authority to act on his judgments in the product safety area are important.

He should have unquestioned authority to carry out that particular aspect of his program.

Secretary Richardson indicated that he felt this should be made clear and it is quite proper to make it clear in the legislation, and I do not think we would have any disagreement with it.

FIXED TERM OF 5 YEARS

Senator PERCY. S. 3419 would provide for an administrator appointed by the President for a fixed term of 5 years. How important, really, is the symbol of a fixed term in assuring agency independence? Mr. AHART. I think the fixed term, Mr. Chairman, does give the incumbent a feeling of independence which he might not otherwise have. I think if we had to comment on the length of his term, I am not sure 5 years is quite long enough. It is kind of an odd number of years. It would overlap various administrations, and without some longer tenure, perhaps he would not achieve the kind of independence which would ordinarily attach to a fixed term of years in office. But we do feel it is important, particularly if this is an independent agency. I am not sure how it would work if you put it in a department. But as an independent agency, we think this would be a favorable step to take.

FUNDING AND PERSONNEL

Senator PERCY. In its several criticisms of FDA programs and those of DBS, has the General Accounting Office done any kind of examination or analysis of the adequacy of resources; that is, funding and personnel, in these agencies?

What recommendations do you have in this regard?

Mr. AHART. In the case of FDA, we have made that kind of analysis. We have not reached a judgment on the specific level of resources which they need to carry out the present responsibilities. However, as I indicated in my statement, in our view, they were not adequate to carry out the responsibilities which they then had.

The specific level depends upon a number of factors. We, in our report on April 18 to the Congress on the sanitation conditions in the food manufacturing industry did raise the issue to the Congress, for the Congress to consider what the level of resources should be. It depends to some extent on quite a number of recommendations we