For all practical purposes, does not the Chairman become the absolute boss, and whatever he wants, whatever he does, becomes a reflection of the President who appoints him, rather than an impartial point of view that Congress can rely upon?

Mrs. THUNBERG. Mr. Chairman, may I respond to that?

Senator RIBICOFF. Would you identify yourself for the record, please?

Mr. KAPLOWITZ. Mr. Chairman, this is Commissioner Penelope Thunberg.

STATEMENT OF PENELOPE THUNBERG, COMMISSIONER,

U.S. TARIFF COMMISSION

Mrs. THUNBERG. The way the Tariff Commission operates now is, I think, relevant. We have staff experts. These are people who are economists or commodity industry experts. In the course of an investigation, these experts collect information relating to the subject under consideration from all sources. They prepare for the Commission, then, a factual report which gathers together all of the information related to the investigation.

On the basis of all information, the Commission then comes to a decision.

As I understand the proposed plan, certain new responsibilities will be assigned to the Chairman which have not been assigned to him before. But the Chairman will be governed by the general policies of the Commission in performing these new responsibilities. I would think that this provision-that the Chairman will be governed by the general policies of the Commission-would be sufficient to prohibit any packing of the staff of the Commission at any time.

Senator RIBICOFF. He does not have to. I mean, when all is said and done, the staff, or a group of civil servants, has integrity. Yet there is a certain form and a certain momentum that a bureaucracy takes of the man that comes in when an administration changes. The President appoints a Cabinet or different commissions with very few changes, I remember.

I think when I became Secretary of HEW, out of some 70,000 employees, I had 12 appointments. Practically, every one who had been there since its inception during the various administrations and various Secretaries, remained. There was no intention to change that, and I am sure if a Republican administration comes in to replace this one at some future time, and the President appoints a new Cabinet, the vast majority of the people in the agencies will remain. Then the new Secretary will have another dozen appointments, but the basic staff remains. Therefore, the role of the civil servant is to carry out and reflect the thinking of the administration in the executive branch. No one quarrels with that. That is your job. You are a professional; that is how you do your work.

Now, suddenly, a staff that feels their decisions will be handled by a majority suddenly finds there is really only one boss and that is the Chairman. When that Chairman hands down policies and assigns work, is not the Chairman the man who will determine whether you make a study in one field or another? The Chairman is the one who is going to decide.

For comity, to get along with your other five members of the Commission, you are going to be as courteous and as thoughtful as you possibly can.

But let us say that there is a strong difference of opinion on a matter. Who is going to make a determination of the assignments and the priorities? It is the Chairman.

Mr. HUGHES. I think that is the question, Mr. Chairman, if you will. I am, to some extent, butting into a family row here, and there is a certain risk in that, but we are inevitably in this one.

Who will determine the policies, I think, is the question. Under the terms of the plan both as written and as we conceive it and as I gather the Chairman conceives it, the staff would remain responsive to the policies of the Commission. What we are discussing here is whether the Commission can effectively make its policies and wishes felt to a Chairman who may, in some sense, have differing views from a majority of the Commisison. It seems to me quite clearly that is possible. To particularize, and I know of no other way to deal with this problem, I cannot conceive of Commissioner Fenn, whom I have known in various roles over a period of years, I cannot conceive of his yielding to the Chairman, if you will, on an important matter of policy simply because the Chairman has a grip on his desk and certain of his material official possessions.

I think we are ultimately dependent, in other words, in this set of circumstances, as we always are, on the caliber of the individuals appointed, not only the Chairman but the other members of the Commission who are charged under the law and under their oath of office with responsibilities not to the administration but to execute the law. Senator RIBICOFF. But you see, you have a different problem here. A new administration comes into office. A Cabinet is appointed. This is definitely a part of the executive branch of the Government. The members of the Cabinet carry out the policy of their President, which is right. Whether they believe in them or not, they carry out the policy of their President.

But this Tariff Commission also has a duty to the Congress. The Chairman is an individual appointed by the President. Would there not be a tendency for the Chairman to reflect the philosophy of whoever is the President? He is the President's man, really. Now, where does Congress go to get independent factual material and findings if you have an agency owing its responsibility to the executive branch, without a concomitant responsibility to the Congress? Where do we in Congress go to get impartial material for actions that we are expected to take?

Mr. HUGHES. I think you made a jump there, Mr. Chairman, which I do not feel is the right sequence of events, because let us assume that the President appoints the Chairman and that he appoints a man whose views he knows to be in consonance with his own, as was the case with prior Chairmen and prior Commission members. The Chairman still remains an individual within the Commission who is charged by law and under the terms of this plan with executing the policies of the Commission as a whole, such Commisison having been appointed by perhaps several Presidents, depending on the circumstances. But both the Chairman, even though he is appointed by the President, and the other members of the Commission, are charged by law with

carrying out their legal responsibilities under the Tariff Act and under the other acts that are relevant. These responsibilities extend not just to advising the President, but to advising the Congress as well. They are very basic statutory charges which the Commission, as a whole, must carry out.

Even though the Chairman would, by definition, under this reorganization plan be established as a strong chairman, he is still responsible for carrying out the policies of the Commission, and certainly, Commissioner Fenn, Commissioner Culliton, and the others would have a responsibility under the terms of their oath of office to see to it that Chairman Kaplowitz or his successor did execute the policies of the Commission as a whole, not just his.

Senator RIBICOFF. While that is theoretically so, it is a rare situation, and very exceptional, that a chairman of any group, or member of the Cabinet, would not reflect the point of view of the Chief Executive.

Mr. HUGHES. I am assuming, Mr. Chairman, that the Chairman of the Commission would, subject always to the limits of his concerns, his oath of office, and so on, reflect the President's policies. But he is not the Commission, and under the terms of the plan, he must reflect the policies of the Commission as a whole.

Senator RIBICOFF. But the problem that you have here is that he controls the purse, he controls the staff, he determines who gets hired and fired, promoted and demoted, and he is the one who assigns the work. That is pretty big power. The other five can be almost forgotten and cannot amount to very much if this is how a chairman wants to act.

Mr. HUGHES. I do not think Commissioner Fenn is going to forget about important administrative policies simply because the plan goes into effect. I think Commissioner Fenn is going to continue to concern himself, and very properly, with those elements of administration which are in implementation of the Commission's policies.

Senator RIBICOFF. That may be true. But suppose Commissioner Fenn does not have the staff to do the work and make the research that he thinks is important from his point of view. Where does he get them? This is to be assigned by the Chairman. Suppose he disagrees with the Chairman.

Mr. KAPLOWITZ. Mr. Chairman, if I may, I am a little confused about the discussion of carrying out the policies of the President. The only policies I know about that the Commission carries out are the policies of Congress, the laws it enacts, the instructions it gives us. The President does not have any say-so as far as the Commission activities are concerned. I never experienced, and I was around for a long time, any instance where the President or even the White House staff attempted to direct or suggest a direction to the Commission. Each Commissioner is appointed by a President, and I know from my experience that if you want to get right down to it, when a commissioner's terms is about to expire and he aspires to another term, I do not have any hesitancy in saying that I think they might be influenced by that. If you want to get right down to it, then there should not be anybody appointed to the Commission by the President. They should all be an arm of Congress. Maybe the Commission should be made a part or an arm of the Ways and Means Committee or the Finance Committee or a joint committee, if that is all it wants, an impartial

staff. But if you are going to have a system of appointments of commissioners by the President, you are going to have these elements of commissioners-I mean you just have to rely on their good judgment and on their honesty and on their integrity.

Now, I had dealings in my capacity as General Counsel of the Commission with many administrations, Republican as well as Democratic. I had contacts in the White House. And there never was a time, in my experience, that anyone tried to pressure the Commission to make any kind of a decision in any kind of a way. The only time was that sometimes they suggested if we could speed up an investigation or have a hearing a little early, some procedure like that.

I am frank to say that I resent the suggestion that is made on the part of—I do not want him to think I am angry at my colleague, but the suggestion that if the Chairman were to come into possession of these powers, he would be in a position to influence in substantive matters. I think that is almost a presumption that the President of the United States is apt to resort to tactics which I do not think

Senator RIBICOFF. But the problem that you have is that you have a tendency building up where Congress is being bypassed in trade matters. There was the Canadian-United States auto agreement. It was the findings of the Tariff Commission that indicated what this problem was. I think back, too, of how you people handled the rubber footwear situation. I am thinking of the GATT negotiations now going on, with the problem of whether or not a separate agreement will be made in the field of chemicals and American selling price. There are the Treasury rulings on rubber footwear. It is a question now of whether even the trade representative, who is also supposed to be reflecting the interests and problems of American labor and industry is not becoming subservient to the the Secretary of State. Now suddenly, and this is the problem that is developing, if the Chairman, who is appointed by the President, is given all these powers, then the balance on the Commission is weighted toward the Executive. Then the question comes, what of the Ways and Means Committee and the Finance Committee, which owes an obligation to the Congress, and yet who has to rely upon you for impartial points of view? Will Congress get it? I am not talking about any individual Commissioner. I am not talking about you. But I am talking about whether we are changing a basic policy and depriving Congress of its responsibility in trade and tariff matters. Because basically, under the Constitution, it is the Congress that has the primary responsibility.

Now, there has been a tendency to delegate much of this responsibility to the Chief Executive. If we keep on doing this and you become the arm of the Chief Executive, what do we in Congress have to rely on? Whom do we in Congress rely on?

Mr. KAPLOWITZ. Well, Mr. Chairman, there seems to be a presumption that if this plan were to be adopted, the Commission would change from something that it is to something else. I cannot see that at all. I am very cognizant of the things that you are speaking of. I was an employee of the Ways and Means Committee for a period of time, and, as a matter of fact, I used to, in my capacity as General Counsel of the Tariff Commission, work very directly with the Ways and Means Committee. I might say I recall with great affection Congressman Baker, who was a very good friend of mine, and I am glad to see that

his son is here as a Senator. When I was with the committee, I discussed on occasion the question of the relationship between the legislative branch and the powers of the Congress and in trade and the delegations to the executive branch or to the President, whether some studies need not be made, and I understand some of them are about to be made.

But in speaking of the Commission, so long as Congress was the tariffmaking authority, up until 1934, when Congress enacted tariff acts, the Commission was primarily, and I might say was really, in a sense, an arm of Congress, because we advised the Congress when they had a revision of the tariff, we sent them voluminous information about commodities and industries, and so forth. When Congress legislated the Trade Agreements Act in 1934, and in subsequent extensions of that act, it, itself, decided that the Tariff Commission should now turn its resources in supplying factual information, unbiased factual information, to the new tariffmaking authority, which is the President. We have throughout the trade agreements program supplied the executive branch, the President, and those who worked with him in the trade agreements area, with the kind of information we used to supply to Congress when it was making tariffs.

But at no time, to my knowledge, has there ever been any understanding by anyone in the executive branch that we were the cat's paw of the executive branch. As a matter of fact, we proclaim our independence not only from the President but from the Congress, too, which might try to make us do something which is not in accordance with the law, or with the instructions that it gave us.

So I think the Commission has been, always has been, a nonpartisan agency. It has operated in this area and I cannot see where the hiring and firing that you are talking about, where people are protected by civil service regulations, is going to result in a bias or possibility of a bias of the chairman in favor of policies or the policy of the President. I do not know what the policy of the President is. The policy of the President, so far as trade is concerned, is to have a trade agreements program. This is also the policy of the Congress, and has been since 1934. That is the only trade policy I know about.

Senator RIBICOFF. Well, now, it is not as easy as that. In other words, the Canadian-American automobile agreement was agreed to, was initialed, and Congress was presented with a fait accompli: if you do not go along, you are embarrassing the administration. Now, here, definitely, was an agreement that should have come to the Congress first, but it did not. I think the same thing of the Treasury's ruling on the rubber shoe issue, where it became obvious that the State Department was making the policy and not the Congress. This is in the works, with the possibility of American selling price method of valuation being bargained away at the Kennedy round even though there is a specific resolution against the President's trade representative doing so. It is not within the authority of the trade act which gave the President the right to come to an agreement, which runs out at the end of June. These are the problems.

What worries me is the growing tendency of the executive branch to usurp congressional power in trade matters. And once we give the Chairman all these powers, then the President can, by appointing the Chairman, who is basically his man, put the Chairman in the same