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in carrying out any of his functions under the provi

sions of this subsection the Chairman shall be governed by gen

eral policies of the Tribunal and by such regulatory decisions,

findings and determinations as the Tribunal may by law be

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You have asked what are the usual arrangements in agencies headed by a collegium of advice-and-consent appointees for the allocation of responsibilities between the chairman and the members of the agency. You point out that although the statute establishing the Copyright Royalty Tribunal, P.L. 94-553, 5101, 17 U.S.C. $802, provides for a rotating one-year chairmanship, nothing is said regarding the powers and responsibilities of the chairman vis-a-vis the other members of the Tribunal

While the arrangements vary somewhat among the agencies, it is almost the universal practice to delegate by law the principal administrative responsibilities to the chairman, subject to the right of the members to set general policy. Fairly typical is the Arrangement in the Federal Trade Commission, as prescribed by Reorganization Plan No. 8 of 1950, 15 U.S.C. S41 note:

$1. Transfer of Functions to the Chairman

(a) Subject to the provisions of subsection (b) of this section,
there are hereby transferred from the Federal Trade Commission,
hereinafter referred to as the Commission, to the Chairman of
the Commission, hereinafter referred to as the Chairman, the
executive and administrative functions of the Commission,
including functions of the Commission with respect to (1) the
appointment and supervision of personnel employed under the
Commission, (2) the distribution of business among such personnel
and among administrative units of the Commission, and (3) the
use and expenditure of funds.

(b)(1) In carrying out any of his functions under the provisions
of this section the Chairman shall be governed by general policies
of the Commission and by such regulatory decisions, findings, and
determinations as the Commission may by law be authorized to
make.

(2) The appointment by the Chairman of the heads of major administrative units under the Commission shall be subject to the approval of the Commission.

(3) Personnel employed regularly and full time in the immediate offices of members of the Commission other than the Chairman shall not be affected by the provisions of this reorganization plan.

(4) There are her eby reserved to the Commission its functions with respect to revising budget estimates and with respect to determining upon the distribution of appropriated funds according to major programs and purposes.

This reorganization plan was adopted in response to the recommendations of the First Hoover Commission. Very similar provisions have been adopted for other major independent regulatory commissions, either by reorganization plan, see 15 U.S.C. $78d note (SEC); or by statute, see 49 U.S.C. $10301(1) (ICC). Furthermore, recent statutes establishing new commissions, while deviating somewhat from the 1950 model, have specifically vested administrative responsibilities in the chairman. See 15 U.S.C. S2053 (CPSC); 7 U.S.C. S4a (CFTC); 49 U.S.C. App. $1902(b) (Natl Transportation Safety Board).

The only collegial agency I know of where the chairman is not delegated broad administrative powers is the Federal Election Commission, 2 U.S.C. S437c. The FEC also has a one-year rotating chairmanship. However, to provide for continuity in administration the Federal Election Campaign Act provides for a staff director and a general counsel who perform most of the administrative functions.

In 1980 hearings were held by the Committee on House Administration of the House of Representatives to consider certain questions relating to the structure and operation of the Federal Election Commission. At this hearing i testified, as did Professor David Welborn, who had done a study for the Conference on chairman/member relations at the major regulatory commissions. I enclose copies of our testimony. (The last page of my testimony deals with Commission structure.) You will note that in arguing for a "strong chairmanship" Professor Welbom pointed to the following advantages:

(1) (The time of members for important substantive matters and
larger administrative questions is conserved, because routine
business is handled by the chairman; (2) the provision of a central
point of access and responsibility at the commission level enables
staff to more efficaciously raise administrative problems and
secure their resolution; (3) a chairman with clear responsibility
and tenure beyond a year is more inclined and able to tackle
complex administrative dilemmas and plan and develop improved
management systems in association with the staff; (4) a strong
chairmanship serves as a means for linking commission-level
policy activity and day-to-day operations to the benefit of both;
(5) as spokesman for the commission, a strong chairman can
provide priorities and clear policy direction for the staff; (6) as a
natural outgrowth of their central place in agency administration,

chairmen tend to perform important functions in policy planning
and management, such as identifying problems, setting priorities,
and moving processes along, which otherwise are likely to fall
into the crack separating commission and staff; and (6) (sic) as
the principal voice of the agency, the external liaison activities in
which strong chairmen typically engage facilitate
communications between the agency and its constitutencies,
which in turn generally has positive effects on regulatory policy
and operations.

As you know, I am not sufficiently familiar with the work of the Copyright Royalty Tribunal to judge to what extent the foregoing discussion is relevant to the experience in your agency. However, there seems to be sufficient similarity to the problems addressed in the 1980 hearing to warrant my bringing the enclosed materials to your attention.

Sincerely,

Richard Berg

Richard K. Berg
General Counsel

Enclosures

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