President of the United States, about the functions of the Bureau he headed in its first year when he said this:

... [W]e have nothing to do with policy. Much as we love the President, if Congress, in its omnipotence over appropriations and in accordance with its authority over policy, passed a law that garbage should be put on the White House steps, it would be our regrettable duty as a Bureau, in an impartial, nonpolitical, and nonpartisan way to advise the Executive and Congress as to how the largest amount of garbage could be spread in the most expeditious and economical manner.

There seems to me some irony in observing that one result of the water pollution impoundment is to impose a 3-year delay-for want of $83.7 million made available by the Congress on the expansion and improvement of the Blue Plains sewage treatment facility for the Potomac River. The result will be a continuation of the health hazard the river already poses. Had the Congress wished to deposit garbage on the White House steps, Mr. Chairman, it could not have done so more efficiently than the President has managed to do on his own in this respect.

Mr. President, I have already stated that I intend to introduceSenator CHILES. You just elevated the chairman of this select committee to a very high

Senator MUSKIE. Well, I think I have much better confidence, Mr. Chairman, in the discharge of your responsibilities of the office than I have at the moment.

I would like, Mr. Chairman, to include in the record, if I may, a copy of the statement I intend to give on the floor as well as a copy of the bill. (The bill was introduced January 31, 1973, as S. 676.) Senator CHILES. The committee will be delighted to receive those records. They will be included in the record.

(The items referred to follow :)

[From the Congressional Record, Jan. 31, 1973]

SENATOR MUSKIE'S INTRODUCTORY REMARKS ON THE PUBLIC BUDGETING
AND RULEMAKING ACT OF 1973

Mr. MUSKIE. Mr. President, over the past decade the Office of Management and Budget has greatly increased its power and influence over all Federal programs affecting domestic affairs. In the past 4 years its influence over some domestic agencies has become all powerful to the point where OMB makes decisions that not only affect agency budget and management structures but go to the very substance of agency programs.

In many cases OMB has become the de facto supervisor of programs assigned by the Congress to a particular Federal agency. It has usurped powers intended for an agency by Congress and imposed decisions on agencies with no accountability whatsoever for its actions.

We know the Secretary of Transportation and his assistants. They must come before us to explain their agency actions, and they are subject to Senate confirmation. But who knows the man at OMB, directing DOT's affairs and often telling the DOT what its polices must be.

We know the Secretary of Health, Education, and Welfare and his assistants. They testify before us, and they are subject to Senate confirmation. But who knows the officials at OMB who say congressionally authorized programs are to be terminated and regulatory activities curtailed.

We know the Administrator of the Environmental Protection Agency and his assistants. They testify before us, they are subject to Senate confirmation. But who knows the officials at OMB who have the last say in ultimate decision-making power on EPA's budget, EPA's management structure, and many of its rulemaking activities.

Mr. President, many agencies today are run by two heads. The designated agency head, assigned by Congress with responsibility to run a program, and his invisible but powerful partner at OMB who makes many of the decisions on how a program will be run.

This is not responsible policymaking. It makes for secret, unaccountable government, easily affected by special interests, with access to OMB and its directors in the White House, but impossible to fathom for Congress and the public who are trying to define and determine accountability and responsibility for vital decisions which are being made.

The legislation I propose today would end that practice. It would reaffirm the authority of the individual agencies to work in the area of expertise, to make recommendations to Congress and to implement programs as intended by Congress. At the same time it would allow OMB to continue planning overall budgetary ceilings, setting priorities among the agencies as a public rather than a private process, and generally overseeing the management of Government and making recommendations, but again through a public, not a private process. Briefly, the legislation I propose would do the following:

First. Require that each Federal agency develop its own budgetary proposalsthis is currently done by each individual agency anyway; it is made a requirement to avoid any claim that agency budget data are covered by executive priviledge and that each agency submit these budgetary proposals to Congress at the same time those budgetary proposals are submitted to the Office of Management and Budget or any other Federal agency.

Second. Require that any and all documents submitted to Congress, the Office of Management and Budget, or any other Federal agency with respect to the proposed budget of a particular agency, be made available for public inspection, except where national security matters are involved.

Third. Provide that where any Federal agency publishes proposed regulations, comments of other Federal agencies, including the Office of Management and Budget, on those regulations shall be allowed only to the same extent and in the same time frame as comment by the public is allowed. Further, all comments by Federal agencies on another agency's rulemaking proposals must be in writing and available for subsequent public inspection.

The advantages of this legislation will be many :

First. It would further the objective of open government. Budgeting and rulemaking activities would be open to much greater public scrutiny and public involvement through availability of documents relating to budgeting and rulemaking activity.

Second. It would speed the rulemaking process. Delays in rulemaking which have been occasioned by OMB reviews would be substantially reduced and the deadlines intended by Congress would be more readily achieved. These delays have been particularly critical in the Clean Air Act where, for example, regulations relating to hazardous substances, originally proposed by EPA early last year have yet to be published because of the delays imposed by OMB.

Third. Government lines of authority would be clearer. It would be easier for Congress and the public to establish responsibility for changes in guidelines and regulations—such as the OMB mandated changes in EPA regulations relating to State implementation plans under the Clean Air Act. Because each agency's comments would be required to be made public, and their commenting opportunities limited to the same time frame as the public, responsibility for recommended policy changes which surface in final guidelines would be simpler to assign.

It would end the current process, under which the issuing agency must often tell less than the truth, taking responsibility for all changes in guidelines or regulations, regardless of whether the changes were developed at the issuing agency or imposed upon them by another Federal agency.

Fourth. Most importantly, this bill will make Congress a more responsible partner in the budgetmaking procedure, Congress will have budgets recommended by the individual agencies-something it is denied today. With these, Congress can assume a much greater role in priority setting than is possible now when the only information available to Congress is information furnished by OMB after it has established priorities for all the Federal agencies. OMB priorities are, of course, established within the context of a maximum level of expenditures which the administration deems appropriate. Agency budgets are then presented to Congress as wholly adequate to perform all of the functions of the agencies. No one, of course, believes this but it is a position of untruth which many civil servants are forced to take in justifying their budgets.

A more truthful procedure and one which gave greater recognition to the congressional power of the purse would be for the administration to provide both the budget request of the individual agencies, indicating what those agencies believed necessary to accomplish their functions and, subsequently, the budget request of OMB indicating the administration's allocation of priority among those functions and the maximum level of expenditures the administration deems appropriate. With these documents, Congress could then more acccurately make decisions on appropriate allocation of priorities and levels of expenditures and exercise better oversight over implementation of laws it has passed. These powers are now limited because Congress does not have available to it all of the information relating to individual agency needs to perform their tasks according to the congressional mandate.

It is my belief that this legislation is necessary to meet the challenge stated to us by our distinguished majority leader that "if there is one mandate to us above all others, it is to exercise our separate and distinct constitutional role in the operation of the Federal Government. The people have not chosen to be governed by one branch of government alone."

93D CONGRESS 18T SESSION

S. 676

IN THE SENATE OF THE UNITED STATES

JANUARY 31, 1973

Mr. MUSKIE introduced the following bill; which was read twice and referred to the Committee on Government Operations

A BILL

To provide that budget requests of executive agencies shall be made known to the Congress and the public and to require public disclosure by Government agencies of participation in its rulemaking process by other Government agencies.

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Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 3 That this Act may be cited as the "Public Budgeting and 4 Rulemaking Act of 1973".

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BUDGETING

SEC. 2. (a) To assist the President in carrying out his 7 duties under the Budget and Accounting Act, 1921, the 8 head of each executive agency shall for each fiscal year 9 (beginning with the fiscal year ending June 30, 1975)

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1 submit to the Office of Management and Budget a budget 2 for that agency setting forth proposed new obligational 3 authority and proposed outlays for such fiscal year. Each 4 such budget shall include, but not be limited to—

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(1) a full explanation of and justification for the proposed new obligational authority, proposed outlays, and levels of personnel contained in such budget,

(2) a full explanation of and justification for any differences between the proposed new obligational authority and proposed outlays contained in such budget and the levels of new obligational authority and outlays authorized by the Congress, and

(3) an identification of all funds available from obligational authority for any fiscal year prior to the fiscal year for which such budget is submitted which are

not intended to be obligated (or if obligated, with 17 respect to which outlays are not intended to be made) before the beginning of the fiscal year for which such

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budget is submitted, and a full explanation of and justi

fication for the failure to obligate or spend such funds, as the case may be.

(b) On the same day on which the head of an 23 executive agency submits the budget of that agency to the

24 Office of Management and Budget pursuant to subsection