safety standards and can require manufacturers of motor vehicle equipment to take appropriate actions to correct safety-related defects. Through a traffic safety program, NHTSA provides matching funds to finance state efforts at highway safety. It issues standards which form the basis for state programs. All states are expected to have in operation federally-approved safety programs in accordance with these standards.

Operational responsibility for the enforcement of commercial motor vehicle safety regulations, however, is the function of a different DOT division, the Federal Highway Administration (FHA). It is the FHA, and its Bureau of Motor Carrier Safety, that regulates the qualifications of, and maximum hours of service by truckers, as well as mandated truck safety equipment standards. Compliance activity is primarily conducted in the field through road checks of vehicles and drivers, and investigations of the carriers at their terminals.

Thus, the responsibility for motor vehicle safety is divided between two components of the Department of Transportation. What is the justification for this seemingly illogical split of authority?

The situation appears to be an unfortunate consequence of a piecemeal approach to legislation, and the explanation is therefore in large part historical. NHSTA's comprehensive responsibility for motor vehicle safety is derived from the National Traffic and Motor Vehicle Safety Act of 1966.206 However FHA's truck safety function, which previously was exercised by the Interstate Commerce Commission, has both a longer history and a separate statute. In 1941, 25 years before the NHSTA act, Congress in the Motor Carrier Act authorized the ICC to establish and enforce safety standards for commercial trucking operations.207 When DOT was created, the function was transferred from ICC and subsequently placed within the Federal Highway Administration.208 Thus, although commercial and non-commercial motor vehicle safety are but different aspects of a single problem, each has a separate treatment within the Transportation Department.

Recently the Highway Administration's performance in the truck safety area has been roundly criticized. This past May, the Government Accounting Office reviewed the 10-year record of the FHA in that regard.209 The GAO report noted that the Congressional transfer of this function from ICC to DOT was intended to improve the effectiveness of the program.210 However, according to GAO, that hope has not been realized:

The Department of Transportation has not upgraded the Federal motor carrier safety program to the level envisioned by Congress. . . little assurance exists that most carriers are complying with Federal safety standards.211

In a recent letter to Secretary of Transportation Brock Adams, Senator Percy has indicated his concern that present truck safety standards are "not effectively enforced" by FHA.212 In response both

200 Public Law 98-563.

207 49 U.S.C. 301 et seq.

208 49 U.S.C. 1651-1659.

209 Government Accounting Office, "The Federal Motor Carrier Safety Program: Not Yet Achieving What the Congress Wanted," May 16, 1977.

210 Ibid., p. 6.

211 Ibid., pp. 11-12.

212 Senator Percy to Secretary Adams, Sept. 17, 1977, as printed in the Congressional Record, Nov. 22, 1977. pp. S. 19152-3.

to Senator Percy and the GAO report, DOT has acknowledged that FHA's truck safety programs are not as effective as they might be. Secretary Brock Adams stated that "steps would be taken to reduce the apparent deterioration in safety of operations of large trucks on the highways." 213 DOT has promised that both the resources and the internal management of the motor carrier safety program would receive close attention. To be sure, the FHA faces a very large task with few resources. With a total budget of only $8,220,000 for fiscal year 1978, the BMCS has responsibility for some four million commercial motor vehicles. For that responsibility, the Bureau has only 128 inspectors--a ratio of trucks to inspectors of about 32,500 to 1.214 The GAO report advanced a series of very specific recommendations on upgrading the safety program. Those ideas are presently under consideration by the Department.

However, the GAO report did not address what we consider to be an issue of utmost importance: why is the trucking safety function located within the Federal Highway Administration? Indeed. the FHA does not consider truck safety as one of its primary missions. Instead, it seeks to coordinate highways with other modes of transportation to achieve an effective balance of transportation systems and facilities. To this end, it is concerned with the total operation and environment of highway systems. It is illogical that an administration whose chief concern is highway commerce and construction should be responsible for the enforcement of safety standards for but one specific segment of transportation. Such a responsibility should be located in the agency-NHTSA-whose primary concern is health and safety.

We believe that the truck safety program could be significantly upgraded by its transfer from FHA to NHTSA. The result would be a more integrated transportation safety policy for the nation. By consolidating the standard-making process and the enforcement mechanisms within a single unit, the efficiency and effectiveness of motor carrier safety would be enhanced. The obvious similarities between the responsibility for commercial motor vehicle safety and the functions now exercised by NHTSA suggest this course.

H. SUMMARY

We recognize, as our discussion has indicated, that there are still significant organizational problems in federal health and safety programs. That is true both in areas that have, and have not, been subject to recent consolidation action by Congress. There are ragged jurisdictional edges in occupational health and safety, which has been subject to consolidation; and in radiation safety, which has not. Problems such as those require further legislation attention. In addition it is undoubtedly true that there is not an interagency agreement, either working or in effect, for every case of organizational conflict in health and safety. To be sure the information on what arrangements exist is incomplete.

23 GAO Report. loc. cit., pp. 37-40; Secretary Adams to Senator Percy, October 12, 1977. loc. cit., p. S. 19153. 214 As quoted in, New York Times Magazine, Nov. 27, 1977, p. 40.

Protection from radiation exposure and occupational safety and health are areas of Federal regulation which, for different reasons, are not subject to remedy by informal agency actions and agreements. Radiation safety is marked by too many agencies administering too many laws, adopted in piecemeal approach. In large part, those functions have been assigned in a vertical fashion according to broad agency missions: thus the transportation agencies are concerned with shipment of radioactive materials; the Nuclear Regulatory Commission regulates those products with radioactive materials that are reactor produced; FDA controls radiation aspects of electronic products; EPA is concerned with environmental aspects; and so forth. No single agency at present has sufficient authority to coordinate those various programs and activities. Equally of concern is the fact that some radiation hazards are presently not subject to effective regulation by any agency.215

Occupational safety and health, on the other hand, has been centered in a single agency OSHA, but its jurisdictional mandate is too ambiguous and uncertain to allow OSHA to effectively coordinate other government units involved in those matters. Ever since that agency was created in 1970, there have been continuing jurisdictional conflicts between OSHA and other agencies. As a result, the comprehensive objectives of OSHA have been adversely affected.216 OSHA's overlap problem, and the organizational deficiencies of federal programs in radiation safety, can be effectively remedied principally through legislative action.

We have specific recommendations for that statutory reform. We believe that the coordinating mechanisms contained in the Toxic Substances Control Act 217—which in effect designate and authorize a lead agency in that area-should be legislated for Federal radiation protection and occupational safety and health activities. In those areas, as with toxic substances control, a single agency should have the ability to coordinate the programs and activities of other agencies. The ability would include the authority to submit formal requests for action by another agency; and if effective regulatory steps were not taken on a recognized hazard, within a certain timetable, then the lead agency could intervene and fill the gap created by inaction. We have also recommended structural changes. In the area of motor carrier or truck safety, those functions should be transferred from the Federal Highway Administration to the National Highway Transportation Safety Administration. Both agencies are now located within the Department of Transportation. However, the present division of responsibility, which reflects a piecemeal approach along vertical lines, is illogical and has not served the public interest. Motor vehicle safety--whether it be for trucks, cars or buses-ought to be contained within a single unit of the Transportation Department.

This study has also been concerned with the utilization of interagency agreements and understandings to resolve organizational disputes. Our proposal elsewhere in this study,218 that there be created a

213 For our discussion of radiation safety, see fns. 105-171b and accompanying text, supra. 216 For discussion of occupational safety and health, see fns. 172-185 and accompanying text, supra.

217 For discussion of the Toxic Substances Control Act approach, see fns 74-104a and accompanying text, supra.

218 See pp. 93-94, supra.

central office in GAO to coordinate such arrangements, has particular application to the field of health and safety. The comprehensive approach which has recently marked federal legislation in this field necessarily involves broad statutory mandates. The uncertain boundaries of those mandates have given rise to shaded areas of jurisdiction and certain overlaps of responsibility. Many of those problems, in our opinion, can-and have been-addressed by informal arrangements between agencies, which delineate who is responsible for what. Congress should encourage and foster those agreements, and to insure that they are utilized to as full an extent as possible. The Committee recognizes the limitations of that approach: interagency understandings often cannot correct major organizational problems. However, to a very significant extent, they can contribute to coordinated and effective federal action in health and safety as well as other regulatory fields.

Problems do exist. All the same we believe that this important area of federal regulation has benefited from major consolidation actions undertaken by Congress since 1970. More comprehensive programs have replaced what was in large part a piecemeal approach. Today there are three clearly identifiable agencies concerned with consumer product safety, worker health, and environmental protection—the Consumer Product Safety Commission, Occupational Safety and Health Administration, and the Environmental Protection Agency. Six years of legislative refinement have gone far in clarifying the jurisdiction and powers of those as well as other health and safety agencies. Also there is today, more often than not, a spirit of cooperation between various agencies, and a willingness to informally resolve differences.

We considered carefully the question of whether still further structural consolidation is required. We have noted the proposal recently made by the House Subcommittee on Oversight and Investigation which would create a new national Consumer Product and Safety Commission. That proposal suggested that an agency fashioned from present functions of the Food and Drug Administration, Consumer Product Safety Commission, National Highway Traffic Safety Administration as well as parts of other agencies. In making that recommendation, the subcommittee concluded that,

The new agency would elevate the status of health and safety regulation and would command greater authority and flexibility than the three separate agencies currently possess.219 We have serious questions concerning whether those objectives would in fact be achieved, thereby justifying the energy and expense that such a reorganization surely would entail.

First, the agencies included in that proposed consolidation have at present separate and distinct regulatory missions. Clear divisions of authority, while perhaps not drawn with absolute precision, do exist: NHTSA is charged with safe operation and equipment of motor vehicles; FDA principally regulates products intended for human ingestion or application; and CPSC protects the public against hazards

219 Subcommittee on Oversight and Investigations. Committee on Interstate and Foreign Commerce, U.S. House of Representatives. Final Report: Federal Regulation and Regulatory Reform, 94th Cong., 2d sess., pp. 548-549 (1976).

in household and consumer products. Certainly, as our discussion has indicated, there are instances of potential overlap between each of those agencies. However, generally speaking, it is not a situation where two agencies are primarily involved in regulating a single class of products or activity. That kind of regulatory situation does exist between the Food and Drug Administration and the Department of Agriculture, and there we have recommended transfer and consolidation.220 Safety in cars, safety in food and drugs, and safety in consumer products obviously share a common element: protecting the public against recognizable hazards.

Second, but what, in fact and not supposition, is the degree of conflict between those agencies? By statute, CPSC is precluded from acting in areas which form the principal jurisdiction of FDA and NHTSA food, drugs, medical devices, cosmetics, motor vehicles, and pesticides are all excluded from CPSC jurisdiction. Of course, overlaps do exist. As our discussion of radiation safety indicates, FDA has retained control of radioactive aspects of electronic products, many of which are intended for consumer use. However FDA-and not CPSC, by its own admission--has the scientific expertise and resources to support that function.221 Reflecting broad statutory language, which Congress determined was necessary to a comprehensive regulatory approach, there are shaded areas of jurisdiction. For example, is a minibike or a snowmobile a motor vehicle (thus subject to NHTSA) or a consumer product (to be regulated by CPSC)? Are carpets in automobiles the responsibility of NHTSA or CPSC? However in 1975 Professor Schwartz of George Washington University law school carefully reviewed the potential areas of conflict between FDA and CPSC, and her findings are relevant here. On FDA-CPSC potential conflicts, she concluded: "To date, there have been no conflicts as to which agency should proceed with a regulation of a product." 222 Professor Schwartz also found that FDA-CPSC overlaps were by no means as potentially significant as conflicts between those and other agencies.223 For instance the powers of the Federal Trade Commission over advertising overlap in various ways with CPSC and FDA jurisdiction. But we would not favor assigning that responsibility on a vertical basis according to agency mission; it is in the public interest to have a single agency charged with that responsibility, even though it obviously will affect the mandates of other agencies.

We have also reviewed the responses FDA and CPSC submitted to the House Oversight Subcommittee on the subject of organizational conflicts.224 CPSC reported to the subcommittee that "significant steps" to remedy conflicts with FDA had been taken in an interagency agreement published in August 1976. FDA's list of real or potential conflicts with CPSC seemed no more compelling than jurisdictional overlaps it shares with other agencies, such as OSHA, EPA, FTC and the Department of Agriculture. After careful review we do not believe that the case for consolidation is made in those responses. The existing jurisdictional problems between FDA, CPSC and NHTSA,

20 See Chapter 4.

See fn. 153 and accompanying text, supra.

Teresa M. Schwartz, "Protecting Consumer Health and Safety: The Need for Coordinated Regulation Among Federal Agencies," 43 Geo. Wash. L. Rev. 1031, 1063 (L975). Ibid. Copies of those responses were provided to the Committee.