Mr. DADDARIO. On page 4 where you call attention to the two serious flaws as you see them. We also had some discussion of the second flaw which you relate to section 5(d) yesterday. We determined from Dr. Haworth's testimony and now that you lay added emphasis to it that we should look more closely into this question of the approval of awards above a given monetary level because the amounts may not be as significant as the programs. This does deserve additional attention, and we appreciate your calling it to our attention.

I would, however, appreciate it, Dr. Hornig, if you could go into it a little bit so that we could have additional information in the record and have something further to refer back to.

Mr. MOSHER. Mr. Chairman, May I interrupt at that point?
Mr. DADDARIO. Yes.

Mr. MOSHER. I was somewhat bothered by the wording suggested on top of page 5, "the formulation of programs by the Director shall be in conformance with the policies of the Foundation and shall be done in consultation with the Board." Isn't there any chance of that rather indefinite wording would be borrowing trouble? Couldn't there arise in practicality arguments as to when there should be consultation with the Board and when there shouldn't on specific grants?

Dr. HORNIG. Mr. Mosher, I think that the question you raise is very real. I think it is implied under both languages. The problem as I mentioned is that there is no clear line between what is policymaking and what is administration. A little bit of policy gets made even when some grants are made and the circumstances are determined that some new programs may be construed by the Director, under the original language of the bill, as making new policy, but the Board might construe it otherwise.

These problems have not in fact come up in the past but they are, I suppose, implicitly present in the fact that there is no sharp legal distinction that can be made between policymaking and execution. So, it deemed desirable to me to emphasize the process of close and continuous consultation.

Mr. MOSHER. At this point, you were talking about how specific awards would be interpreted, weren't you? If you say shall be done in consultation with the Board, is there any implication there? Aren't you going back to the question of whether the Board should approve every award or do I misunderstand?

Dr. HORNIG. I think I meant to go a little further than that. It came up in the connotation of new awards, but it had the provision for the review of new programs by the Board.

Mr. MOSHER. I think if we use the language which you suggest the legislative intent would have to be spelled out so that later there wouldn't arise trouble over what is involved. The language seems very vague.

Dr. HORNIG. I think it would be desirable to spell out the legislative intent, but I would like to suggest that I think the situation is necessarily always vague and that the problem is to draw this with enough flexibility with the intent specified so that the Board and the Director can work harmoniously together, as they always have, I might add. Mr. CONABLE. Well, if we can establish the legislative intent clearly by discussion, why don't we put it in the bill?

Mr. DADDARIO. Is that a statement or a question?
Would you like Dr. Hornig to answer that?

Mr. CONABLE. I realize sometimes in drafting a bill you can't be as specific as you would like, but you are all saying it should be spelled out, but are we spelling it out sufficiently here to present the legislative intent clearly?

Mr. MOSHER. I was looking more for an interpretation of this what seems to be very vague phrase, "shall be done in consultation with the Board."

Mr. CONABLE. It still seems somewhat vague to me.

Dr. HORNIG. I don't know how to put it into the bill or I would have made a suggestion that was more precise than this. But since there is this essential ambiguity as to when you are making policy and when not, because there are all levels of policymaking, it seemed to me—rather than consulting or requiring the Director to consult on some specific cases-that it was desirable to require him to consult with the Board on all programs that are formulated. In this way the question of whether or not there is a policy question could then be resolved by discussion between the Board and the Director. I think under these circumstances the Board is clearly the senior body on matters of policy.

If they find a policy issue, I think there is one.

Mr. MOSHER. This says the formulation of programs shall be done in consultation with the Board. In effect that's what the sentence says.

Dr. HORNIG. That is in effect.

Mr. MOSHER. There would always be a problem in my mind as to in what detail and how specifically the consultation may be? Whether every little program had to be discussed.

Mr. CONABLE. In effect, you are requiring the Board to delegate powers to the Director again, although one of our purposes was to give the Director fairly broad powers not requiring specific Board action.

Dr. HORNIG. I think this is why I suggested the word, "consultation" rather than "approval" for example. But, I think this is an essentially ambiguous situation which occurs in all of the languages that have been suggested.

Mr. VIVIAN. Mr. Chairman?
Mr. DADDARIO. Mr. Vivian?

Mr. VIVIAN. Having myself dealt with somewhat similar situations in corporate organizations, I would suggest that what we need is to define the minimum obligations of the Board. Those things which it must do and the maximum freedom which it must have or maximum freedom which it may have without interfering with the functions of the President's office. Those are not clearly spelled out in this document as yet.

Dr. HORNIG. It is very difficult to do.

Mr. VIVIAN. You would permit the Board to look at all functions of the Foundation by including the phrase, "and shall review its programs." I don't believe the present document clearly defines the minimum obligations of the Board.

Dr. HORNIG. I think the minimum obligations is to set the major policy framework within which the Foundation acts.

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Mr. VIVIAN. I would point out that is a rather difficult thing to point out and decide in itself. For example, the Board never met or discussed very little at its meeting for years, but the Foundation still operated.

Dr. HORNIG. That is absolutely correct.

Mr. VIVIAN. It is difficult to see what changes are placed on the Board in either past or present material. The only clear conclusion that I can reach is that the Board is given a free hand to recommend if it so desires.

Dr. HORNIG. Well, there is certainly more implicit power than that in the requirement that the Director's programs be carried out in conformance with the policy set by the Board.

Mr. VIVIAN. Yes, but I can also point out your remarks in your own testimony regarding the responsibility of the National Science Foundation to be responsive to the policies of the President. Isn't this true? It could conceivably come into conflict.

Dr. HORNIG. I think this is conceivable. This is, of course, true of any executive agency.

Mr. VIVIAN. All I am pointing out is that we haven't really cleared up the question as to the relationship between the Board and the Director's responsibilities and that I think would be the minimum obligation.

Dr. HORNIG. I can only say that I have thought and thought about this problem and have never been able to find in my own mind a precise way of drawing a line between these two functions.

Mr. VIVIAN. Could I ask what other major agencies of the Government have a governing Board with line responsibility?

Dr. HORNIG. I don't know of any other than the regulatory things like the Federal Reserve Board.

Mr. VIVIAN. The regulatory agencies are not obligated to respond to the President's instructions.

Dr. HORNIG. That is right, but they don't have a line operating function of the same sort either.

Mr. VIVIAN. Is this the only agency that has this double direction? Dr. HORNIG. I think this is a unique agency as far as I know, in its administrative structure. The Atomic Energy Commission has a pluralistic head, but it is the administrative as well as the policymaking head of the Atomic Energy Commission. It is both. This particular structure, of course, was set up as I mentioned in the first page of my testimony in recognition of the very broad and delicate interplay of the activities of an agency like the Science Foundation which is responsible for the general health of science and science education, interplay with a large body of America, the scientific community, the educational community, and also the industrial and economic community.

Mr. BROWN. Mr. Chairman?

Mr. DADDARIO. Mr. Brown?

Mr. BROWN. Both the present witness and the witness yesterday recommended the inclusion of this phrase with regard to the review of its programs. As I pointed out yesterday, I fail to see the effect of inserting this language. It either is a directive that they will review each of the programs or, it has other undesirable effects.

I also have some trouble with the present language in the section 4(a) which says that except as otherwise specifically provided in this

act the function of the Board shall be to establish the policies of the Foundation. What this seems to say or could be interpreted to say is that the Board only has one function, which is limited in other places in the act. I don't think the bill is exactly precise in what we want the Board to do. We certainly want to have it feel free to review programs which it feels are important for the determination of the implementation of policy. Therefore, it would seem to me that we need somewhat more flexible language in order to accomplish this.

Now, here is a suggestion which includes some of the points that Dr. Hornig has made. I would like to suggest wording something like this: The Board shall establish and oversee the implementation of the policies of the Foundation subject to the provisions of applicable law and Presidential direction. That is not necessarily final polished language, but it includes both the establishment of policy and overseeing the implementation of policy which I think is absolutely necessary and in fact implied corollary in being able to establish policy. As I said yesterday, if I had a statement such as this before me that the role of a board was just to establish policy, the first policy I would establish would be some appropriate review program which would take care of the matter. But, if that is a point of question, write it in. It is also clear that everything we assign to the Foundation is subject to the appropriate laws enacted by the Congress.

I don't think the Foundation wants to put itself above the law. This is superfluous to insert really but if it comforts anyone, put that language into the law.

Mr. DADDARIO. Well, of course, we are holding the hearings for the purpose of coming to some determination about this. There are some ambiguities which the record will show. We can research them out and come to a determination about the exact language. Dr. Hornig is appearing here as the other witnesses are so that this, among other objectives might be achieved.

Mr. BROWN. May I offer this as my contribution to the ambiguity, sir?

Mr. DADDARIO. Yes, I appreciate that, Mr. Brown.

Are there any further questions on this point?

Mr. Wvdler?

Mr. WYDLER. No, I have general questions, Mr. Chairman. They don't relate to any specific point.

Mr. DADDARIO. Will you hold them for a moment then.

Dr. Hornig, on page 4 I would like you to elaborate a little more on the first of your flaws. Consider your suggestions as against the language of the bill, which is presently operable but which in my opinion is very restrictive even though it has offered no problems. The Board has delegated to the Director much authority but the Board does have veto power over all problems which the Foundation undertakes. Your language as I see it, would eliminate this as a Board capability. What problems might result in the event you did have a Director who had not established a proper and harmonious relationship with the Board? He could completely ignore them, as I see the effect of your language.

Dr. HORNIG. I think that you raise a very real problem, Mr. Chairman. I think that if the Board and the Director are determined to go in opposite directions, it is very difficult to draft any language

which will insure that they will work harmoniously. If I were a deliberately obstreperous Director I think I could do many things without setting up a new program if I construe program to mean a formally designated program as it has been. So I think that inherent in my comments is the assumption that high governmental officials will be reasonable and competent men.

Mr. DADDARIO. Well, the hypothetical case I draw then is not a good one. Let's say they work very nicely together but then they come up with one important issue where they are in conflict as reasonable men might.

Dr. HORNIG. My construction of the bill and of my comments as well that the Board is an arbiter of a policy. It is quite true we don't provide, either in my suggestions or the bill, explicit penalties for violating the provisions of the bill. But I think the Director is enjoined as administrative officer to operate by the law within the policies established by the Board. And, it would appear to me that if they were to consult in the formulation stage which is an earlier stage of new programs that this gives the Board the continuous possibility rather than the veto over formulated programs, and there is a possibility of injecting its policymaking responsibilities during the formulation stage. This is what I have in mind.

Mr. DADDARIO. We take your reasoning for the elimination of the monetary level because a small program may sometimes be more important clearly to the country than one which entails the expenditures of large sums of money, if we apply the logic of your suggestion on section 5(d), if a conflict were to arise in the establishment of a new program, and if we eliminate the ability of the Board to become involved in an establishment of new programs would this be a helpful suggestion. I'm frankly disturbed and think the committee will have to look at this a bit more. I don't know whether I could agree with

you.

Dr. HORNIG. Mr. Chairman, I would only like to observe that that suggestion should be taken together with the suggestion that there be the explicit statement that the formulation of programs by the Director shall be in conformance with policies established by the Board. What I was attempting to do was to help get a clear view of the Board as the policymaking body of the Foundation which does include a very considerable extent this oversight function in order to exercise that responsibility and, on the other hand, that the Director have clear administrative authority to act on the day to day matters. Mr. CONABLE. Mr. Chairman?

Mr. DADDARIO. Yes, Mr. Conable?

Mr. CONABLE. Dr. Hornig, for my own information there is certainly no criticism implied at all-I would like to know when you appear before a subcommittee like this, do the various witnesses appearing before the subcommittee get together and discuss the matters that are to be brought up? I ask this because Mr. Carey is recommending the exact same wording you are in respect to section 5(d) and it seems more than a coincidence that the wording is expressly the same.

Dr. HORNIG. I think that on matters which are as subtle as this and as difficult as this, it would be wrong if we didn't debate this out somewhat.