[Senate Report 113-128]
[From the U.S. Government Publishing Office]
Calendar No. 264
113th Congress } { Report
1st Session } SENATE { 113-128
_______________________________________________________________________
GOVERNMENT ACCOUNTABILITY OFFICE IMPROVEMENT ACT
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
H.R. 1162
TO AMEND TITLE 31, UNITED STATES CODE, TO MAKE IMPROVEMENTS IN THE
GOVERNMENT ACCOUNTABILITY OFFICE
December 17, 2013.--Ordered to be printed
_____
U.S. GOVERNMENT PRINTING OFFICE
39-010 WASHINGTON : 2013
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
THOMAS R. CARPER, Delaware Chairman
CARL LEVIN, Michigan TOM COBURN, Oklahoma
MARK L. PRYOR, Arkansas JOHN McCAIN, Arizona
MARY L. LANDRIEU, Louisiana RON JOHNSON, Wisconsin
CLAIRE McCASKILL, Missouri ROB PORTMAN, Ohio
JON TESTER, Montana RAND PAUL, Kentucky
MARK BEGICH, Alaska MICHAEL B. ENZI, Wyoming
TAMMY BALDWIN, Wisconsin KELLY AYOTTE, New Hampshire
HEIDI HEITKAMP, North Dakota
Richard J. Kessler, Staff Director
John P. Kilvington, Deputy Staff Director
Beth M. Grossman, Chief Counsel
Jonathan M. Kraden, Senior Counsel
Keith B. Ashdown, Minority Staff Director
Christopher J. Barkley, Minority Deputy Staff Director
Andrew C. Dockham, Minority Chief Counsel
David Z. Demirbilek, Minority Counsel
Laura W. Kilbride, Chief Clerk
Calendar No. 264
113th Congress } { Report
1st Session } SENATE { 113-128
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GOVERNMENT ACCOUNTABILITY OFFICE IMPROVEMENT ACT
_______
December 17, 2013.--Ordered to be printed
_______
Mr. Carper, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany H.R. 1162]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (H.R. 1162) to amend
title 31, United States Code, to make improvements in the
Government Accountability Office, having considered the same,
reports favorably thereon without amendment and recommends that
the bill do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and Need for the Legislation..........................2
III. Legislative History..............................................5
IV. Section-by-Section Analysis......................................6
V. Evaluation of Regulatory Impact..................................7
VI. Congressional Budget Office Cost Estimate........................7
VII. Changes in Existing Law Made by the Bill, as Reported............8
I. Purpose and Summary
H.R. 1162, the Government Accountability Office Improvement
Act, responds to efforts by the executive branch to restrict
the ability of the Government Accountability Office (GAO) to
aid Congress in performing its oversight functions. GAO is a
legislative branch agency that helps Congress by, among other
things, investigating federal agencies' implementation of
federal programs. The bill both confirms and enhances GAO's
investigative powers by putting a statutory stop to several
steps taken by the executive branch to curtail GAO's authority.
Specifically, it makes clear that the Comptroller General
(the head of GAO) has standing to pursue litigation to compel
access to federal agency information; GAO has the right to make
and retain copies of agency records; GAO can administer oaths
to witnesses when conducting certain types of investigations;
and GAO has the authority to access specific categories of
records that have been denied to GAO by the Department of
Health and Human Services and the Food and Drug Administration.
H.R. 1162 also confirms GAO's responsibility to protect
sensitive information and requires GAO to prescribe the
policies necessary to protect proprietary or trade secret
information from public disclosure.
II. Background and Need for the Legislation
In order to carry out its constitutional responsibilities,
Congress must have information sufficient to determine the need
for future federal legislation, as well as information about
how current federal programs are working. Congress often relies
on GAO to help seek, process and analyze that information. GAO
evaluates federal programs and activities, and it informs
Congress, executive agencies, and the public whether the
government and those involved in implementing federal programs
are doing their jobs well or are instead running federal
programs in a manner that makes them vulnerable to waste,
fraud, abuse, and mismanagement. GAO's audits, evaluations and
reports provide reliable assessments as to whether the
taxpayers are receiving full value from important government
programs.
To carry out this role, Congress long ago gave GAO a
statutory right of access to information and records in the
possession of federal agencies.\1\ Although GAO has faced
sporadic executive branch resistance throughout its history,
several recent efforts by the executive branch have more
significantly jeopardized GAO's ability to give Congress the
information it needs to legislate effectively, conduct
meaningful oversight, and audit the use of appropriated funds.
Because existing law provides sufficient authorization for GAO
to obtain executive branch information, this denial of
information is unjustified. H.R. 1162 is intended to increase
the effectiveness of GAO by ensuring that GAO is not
unreasonably restricted in its efforts to secure necessary
information in the course of performing its auditing and
investigative functions for Congress.
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\1\31 U.S.C. Sec. 716.
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STANDING TO BRING CIVIL ACTION TO COMPEL PRODUCTION OF MATERIAL
To begin with, H.R. 1162 responds to a judicial decision
that threw into doubt GAO's authority to compel production of
material from the executive branch.\2\ In 1980, Congress passed
legislation authorizing the Comptroller General to ``bring a
civil action in the district court of the United States for the
District of Columbia to require the head of the agency to
produce a record[.]''\3\ In February 2002, GAO sought to use
that authority after then-Vice President Cheney's energy task
force refused to give GAO records it requested. The U.S.
District Court for the District of Columbia dismissed GAO's
suit.\4\
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\2\Walker v. Cheney, 230 F. Supp. 2d 51 (D.D.C. 2002).
\3\Pub. L. No. 96-226, codified at 31 U.S.C. 716(b)(2).
\4\Walker v. Cheney, 230 F. Supp. 2d 51 (D.D.C. 2002).
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In dismissing GAO's lawsuit, the Court did not rule on the
merits of GAO's statutory authority to conduct this particular
audit or to obtain access to the records in question. Rather,
the Court held that the Comptroller General did not have
standing to file the lawsuit, finding that the Comptroller
General did not suffer an ``injury in fact.'' The Court found
that the Comptroller General suffered no institutional injury
because the Comptroller General, acting as an agent of
Congress, could suffer only the same injury as Congress and
that Congress's injury was too ``vague and amorphous'' to
confer standing.\5\
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\5\Id. at 67.
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The decision in Walker v. Cheney is inconsistent with
Congress's intended role for the Comptroller General as
embodied in GAO's authorizing statute. The decision undermines
GAO's ability to successfully carry out the investigative
responsibilities delegated to it by Congress, as well as
Congress's constitutional prerogatives to determine how best to
carry out its oversight responsibilities. Both GAO and Congress
face cognizable injury when the Comptroller General is denied
access to agency records sought to fulfill his statutory
mission to inform Congress. This ``informational'' injury is
sufficient to satisfy the constitutional requirement of a
justiciable ``case or controversy'' to enable the Comptroller
General to pursue a civil action to enforce GAO's statutory
right to access agency records to fulfill its reporting
responsibilities to Congress. H.R. 1162 reaffirms and makes
explicit the authorization that Congress gave to the
Comptroller General to redress the injury-in-fact sustained
when agencies improperly withhold material from GAO by
initiating a lawsuit without the need for additional approval.
It is this Committee's expectation that before pursuing
such litigation the Comptroller General will, as he did prior
to filing Walker v. Cheney, first exhaust other avenues that
are available to obtain the necessary information. Should such
attempts fail, however, it is the intention of Congress to
allow the Comptroller General to seek a judicial remedy to
enforce GAO's right to information under the law.
STATUTORY RIGHT TO MAKE AND RETAIN COPIES OF AGENCY RECORDS
H.R. 1162 also reaffirms that GAO has the statutory right
not only to inspect agency records,\6\ but also to make and
retain copies of agency records. A number of court precedents
have established that the statutory right to inspect a record
implies the right to inspect them in an effective manner, which
would include the copying of documents.\7\ In order for GAO to
effectively carry out its statutory responsibilities, it is
necessary for GAO to make and retain copies of such records. At
times, however, GAO has found its audit, evaluation, and
investigative efforts frustrated and delayed by agencies that
insist that GAO review records only on site without making
copies, even in situations that do not involve sensitive
information or any other practical justifications for denying
GAO the ability to copy necessary records. Accordingly, H.R.
1162 specifies that GAO has a right to make and retain copies
of records.
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\6\31 U.S.C. Sec. 716(a).
\7\See Westside Ford, Inc. v. United States, 206 F.2d 627, 634 (9th
Cir. 1953); Riley v. McGarry, 248 F. Supp. 545 (D. Mass. 1966).
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EXPANDING GAO'S AUTHORITY TO ADMINISTER OATHS
H.R. 1162 further strengthens GAO's investigative powers by
expanding the Comptroller General's authority to administer
oaths. Presently, the Comptroller General may administer oaths
only ``when auditing and settling accounts.''\8\ When GAO was
established in 1921 as the General Accounting Office, its
principal focus was auditing accounts, but that is no longer
the case. Congress has since called upon the Comptroller
General to perform many other audit, investigative, and
evaluative roles. These roles periodically entail situations
involving potential fraud or attempts to defraud the United
States or irregularities or misconduct of an employee or agent
of the United States. The government has a critical interest in
obtaining truthful and complete testimony from those with whom
GAO speaks in the course of such investigations. Authorizing
GAO to administer oaths in such cases will ensure that those
talking to GAO fully understand the importance of truthful
testimony as well as the potential consequences to themselves
if they do not truthfully testify. When investigating such
matters, the ability to administer oaths can be an important
tool for the Comptroller General to accomplish GAO's work for
Congress.
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\8\31 U.S.C. Sec. 711(4).
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GAO ACCESS TO SPECIFIC AGENCY RECORDS
Finally, H.R. 1162 addresses longstanding problems GAO has
faced with certain federal agencies that have resisted GAO
scrutiny. The Department of Health and Human Services (HHS) and
its component agency, the Food and Drug Administration (FDA),
in particular have asserted that the failure of their
authorizing statutes specifically to identify GAO as an
approved recipient of documents acts as an implicit exception
to the broad authorization GAO's governing statute gives it to
obtain agency material. The bill adds a new section 721 to
title 31 of the U.S. Code that makes clear that GAO's governing
statute trumps the agency-specific ones, affirming GAO's
existing right to access information at the HHS and the FDA.
As an example of the problems GAO has encountered, HHS has
construed the Social Security Act as precluding GAO access to
the National Directory of New Hires, a database of employment
information critical to investigations of fraud in certain
Social Security Act programs, because GAO is not expressly
listed as an authorized recipient of the data. Subsection (a)
of the new section 721 would prohibit HHS from denying or
limiting GAO's access to any material merely because governing
statutes do not expressly identify GAO as a recipient of
information or provide for its access to information, thereby
confirming GAO's existing statutory right of access in these
types of cases.
Similarly, the FDA has construed a provision of the Federal
Food, Drug, and Cosmetic Act to authorize it to disclose trade
secrets information to GAO only for studies requested by a
chair of a committee or subcommittee of jurisdiction, and only
when the requests specifically refer to GAO's need for trade
secrets information. FDA does not separate trade secrets
information from other information on regulated entities that
is needed for audits and investigations and, thus, according to
GAO, FDA's view has adversely affected GAO's access to a wide
range of information beyond trade secrets. Gaining access to
needed information has involved time-consuming procedural
steps, including the redaction of trade secrets information,
and substantial delays in GAO's work. The new subsection 721(b)
would remove any doubt as to GAO's authority to obtain trade
secrets information from the FDA, regardless of who initiated
the project for which GAO seeks the information.
The Committee recognizes GAO's exemplary record of
protecting the most sensitive information it routinely obtains
from agencies across government--ranging from highly classified
national security documents to taxpayer return information--and
the Committee is confident that GAO will rigorously maintain
the confidentiality of information obtained under this new
section.
APPLICATION OF GAO AUTHORITIES TO JUDICIAL BRANCH
H.R. 1162 responds primarily to long-standing problems GAO
has faced in its efforts to obtain information and material
from executive branch agencies. During the Committee's
consideration of the bill in this and previous sessions of
Congress, the Judicial Conference of the United States
expressed concerns about how these authorities would apply to
it. It shared its view that the judicial branch has a unique
role, structure, operations, and mission different from that of
the executive branch. It believes that questions remain
regarding the appropriate process and procedures under which
GAO accesses and obtains certain information from the judicial
branch. Those questions are outside the immediate scope of this
bill. The Committee expects GAO, in consultation with the
Administrative Office of the U.S. Courts (AOUSC) and other
appropriate entities, to develop GAO protocols outlining the
procedures it will follow in future reviews relating to the
judicial branch. GAO and the AOUSC should inform this and other
relevant Committees when they have completed this effort and
whether they believe additional legislative action is
warranted.
III. Legislative History
Representatives Darrell Issa and Elijah Cummings introduced
H.R. 1162 in the House on March 14, 2013. On April 15, 2013,
the bill was agreed to in the House by a vote of 408-0. H.R.
1162 was then received in the Senate, read twice and referred
to the Senate Committee on Homeland Security and Governmental
Affairs. H.R. 1162 is similar to S.237, which was favorably
reported by the Committee in the 112th Congress.\9\
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\9\The primary difference between H.R. 1162 and S. 237, is that
H.R. 1162 strikes language referencing pre-merger filing information
submitted with the Federal Trade Commission and the Department of
Justice under the Hart-Scott-Rodino Act.
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The Committee considered H.R. 1162 on July 31, 2013. By
voice vote, the Committee ordered that the bill be favorably
reported without amendment. Members present for the vote were
Senators Carper, Levin, McCaskill, Tester, Begich, Baldwin,
Coburn, Johnson, Ayotte, and Chiesa.
IV. Section-by-Section Summary of the Bill
Section 1: Short title
The short title of the bill is the ``Government
Accountability Office Improvement Act.''
Section 2(a): Authority to obtain information
Section 2(a)(1) amends 31 U.S.C. Sec. 716(a) to explicitly
reaffirm that Congress has authorized GAO to pursue civil
actions if federal agencies withhold records from GAO.
Section 2(a)(2) also amends 31 U.S.C. Sec. 716(a) to make
clear that the Comptroller General has the right not only to
inspect agency records, but also to make and retain copies of
such records.
Section 2(b): Administering oaths
Section 2(b) amends 31 U.S.C. Sec. 711 to modernize the
Comptroller General's authority, subject to appropriate
safeguards, to administer oaths to witnesses in specific types
of GAO investigations. Section 2(b) amends GAO's existing
authority to allow the Comptroller General to administer oaths
to witnesses when investigating fraud, attempts to defraud the
United States, or irregularities or misconduct by a federal
employee or agent.
Section 2(c): Access to certain information
Section 2(c) adds a new statutory section, 31 U.S.C.
Sec. 721, which makes clear that the Social Security Act and
the Federal Food, Drug, and Cosmetic Act do not limit GAO's
right of access to information.
New subsection 721(a) confirms GAO's existing authority to
review information at the Department of Health and Human
Services, including the National Directory of New Hires.
New subsection 721(b) confirms GAO's existing authority to
review trade secret information held by the Food and Drug
Administration.
New subsection 721(c), in recognition of the sensitivity of
the information that agencies may provide to GAO, requires GAO
to prescribe policies and procedures necessary to protect
proprietary or trade secrets information from public
disclosure. It also makes clear that section 721 does not
modify 18 U.S.C. Sec. 1905, which prohibits the disclosure of
trade secrets and other sensitive information, or affect the
applicability of 31 U.S.C. Sec. 716(e), which requires GAO to
safeguard the confidentiality of information and also protects
against unauthorized disclosure.
New subsection 721(d) makes clear that the references to
specific statutory provisions in section 721 are not intended
to affect GAO's access to information under existing statutes
that are not specifically identified in section 721. The
Committee expects that agencies will treat situations covered
by the new section 721 and analogous situations not expressly
addressed in a similar manner, thus giving full effect to GAO's
existing right of access and facilitating rather than impeding
congressional oversight.
Section 2(d): Agency reports
This section amends 31 U.S.C. Sec. 720(b) to give agencies
more flexibility in reporting to Congress on their responses to
GAO recommendations. Currently, agencies must report two months
after issuance of a GAO report on ``action taken.'' This
provision allows agencies to report on actions ``planned'' or
taken in response to a GAO recommendation. In addition, the
section expands the list of recipients of agencies' reports to
include GAO and the congressional committees of jurisdiction
over the agency program or activity that is the subject of the
recommendation.
V. Regulatory Impact and Evaluation
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill. The Committee
agrees with the Congressional Budget Office that the bill
contains no intergovernmental or private sector mandates as
defined in the Unfunded Mandate Reform Act and would not affect
the budgets of state, local, or tribal governments. The
enactment of this legislation will not have significant
regulatory impact.
VI. Congressional Budget Office Cost Estimate
August 2, 2013.
Hon. Thomas R. Carper,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S.
Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1162, the
Government Accountability Office Improvement Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
H.R. 1162--Government Accountability Office Improvement Act
H.R. 1162 would provide additional authorities to the
Government Accountability Office (GAO), including the ability
to obtain certain records and information and to administer
oaths. The legislation also would require GAO to establish
procedures to protect certain proprietary information.
CBO estimates that implementing the legislation would have
no significant impact on the federal budget because it would
not significantly add to GAO's administrative costs. Enacting
H.R. 1162 would not affect direct spending or revenues;
therefore, pay-as-you-go procedures do not apply.
H.R. 1162 would impose an intergovernmental mandate as
defined in the Unfunded Mandates Reform Act (UMRA) by requiring
the District of Columbia to report information to Congressional
committees and GAO. CBO estimates that the cost to comply with
the mandate would be minimal and would not exceed the threshold
established in UMRA for intergovernmental mandates ($75 million
in 2013, adjusted annually for inflation).
H.R. 1162 contains no private-sector mandates as defined in
UMRA.
On April 1, 2013, CBO transmitted a cost estimate for H.R.
1162, as ordered reported by the House Committee on Oversight
and Government Reform. The two versions of the legislation are
similar, and the CBO cost estimates are the same.
The CBO staff contacts for this estimate are Matthew
Pickford (for federal costs) and Elizabeth Cove Delisle (for
the impact on state and local governments). The estimate was
approved by Peter H. Fontaine, Assistant Director for Budget
Analysis.
VII. Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, the following changes in existing
law made by H.R. 1162, as reported, are shown as follows
(existing law proposed to be omitted is enclosed in black
brackets, new matter is printed in italic, existing law in
which no change is proposed is shown in roman).
TITLE 31--MONEY AND FINANCE
Subtitle I--General
CHAPTER 7--GOVERNMENT ACCOUNTABILITY OFFICE
Subchapter I--Definitions and General Organization
* * * * * * *
Section
701. Definitions
* * * * * * *
721. Access to certain information.
* * * * * * *
SECTION 711. GENERAL AUTHORITY.
The Comptroller General may
(1) * * *
* * * * * * *
(4) administer oaths to witnesses when auditing and
settling accounts[.] and, with the prior express
approval of the Comptroller General, when investigating
fraud or attempts to defraud the United States, or
irregularity or misconduct of an employee or agent of
the United States.
* * * * * * *
TITLE 31--MONEY AND FINANCE
Subtitle I--General
CHAPTER 7--GOVERNMENT ACCOUNTABILITY OFFICE
Subchapter II--General Duties and Powers
SECTION 716. AVAILABILITY OF INFORMATION AND INSPECTION OF RECORDS.
(a)(1) The Comptroller General is authorized to obtain such
agency records as the Comptroller General requires to discharge
his duties (including audit, evaluation, and investigative
duties), including through the bringing of civil actions under
this section. In reviewing a civil action in this section, the
court shall recognize the continuing force and effect of the
authorization in the preceding sentence until such time as the
authorization is repealed pursuant to law.
[(a)](2) Each agency shall give the Comptroller General
information the Comptroller General requires about the duties,
powers, activities, organization, and financial transactions of
the agency. The Comptroller General may inspect, and make and
retain copies of, an agency record to get the information. This
subsection does not apply to expenditures made under section
3524 or 3526(e) of this title.
* * * * * * *
SECTION 720. AGENCY REPORTS.
(a) * * *
(b) When the Comptroller General makes a report that
includes a recommendation to the head of an agency, the head of
the agency shall submit a written statement on action taken or
planned on the recommendation by the head of the agency. The
statement shall be submitted to--
(1) the Committee on Homeland Security and
Governmental Affairs of the Senate, [and] the Committee
on [Government Operations] Oversight and Government
Reform of the House of Representatives, the
congressional committees with jurisdiction over the
agency program or activity that is the subject of the
recommendation, and the Government Accountability
Office before the 61st day after the date of the
report; and
(2) the Committees on Appropriations of both Houses
of Congress in the first request for appropriations
submitted more than 60 days after the date of the
report.
* * * * * * *
SECTION 721. ACCESS TO CERTAIN INFORMATION.
(a) No provision of the Social Security Act, including
section 453(1) of that Act (42 U.S.C. 653(1)), shall be
construed to limit, amend or supersede the authority of the
Comptroller General to obtain any information or to inspect or
copy any record under section 716 of this title.
(b) No provision of the Federal Food, Drug and Cosmetic
Act, including section 301(j) of that Act (21 U.S.C. 331(j)),
shall be construed to limit, amend, or supersede the authority
of the Comptroller General to obtain any information or to
inspect or copy any record under section 716 of this title.
(c)(1) The Comptroller General shall prescribe such
policies and procedures as are necessary to protect from public
disclosure proprietary or trade secret information obtained
consistent with this section.
(2) Nothing in this section shall be construed--
(A) to alter or amend the prohibitions against the
disclosure of trade secret or other sensitive
information prohibited by section 1905 of title 18 and
other applicable laws; or
(B) to affect the applicability of section 716(e) of
this title, including the protections against
unauthorized disclosure contained in that section, to
information obtained consistent with this section.
(d) Specific references to statutes in this section shall
not be construed to affect access by the Government
Accountability Office to information under statutes that are
not so referenced.