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[House Report 110-771]
[From the U.S. Government Publishing Office]

110th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     110-771

======================================================================

 
        GOVERNMENT ACCOUNTABILITY OFFICE IMPROVEMENT ACT OF 2008

                                _______
                                

 July 24, 2008.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

  Mr. Waxman, from the Committee on Oversight and Government Reform, 
                        submitted the following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                        [To accompany H.R. 6388]

      [Including cost estimate of the Congressional Budget Office]

      The Committee on Oversight and Government Reform, to whom 
was referred the bill (H.R. 6388) to provide additional 
authorities to the Comptroller General of the United States, 
and for other purposes, having considered the same, report 
favorably thereon with an amendment and recommend that the bill 
as amended do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background and Need for Legislation..............................     2
Legislative History..............................................     2
Section-by-Section...............................................     3
Explanation of Amendments........................................     5
Committee Consideration..........................................     5
Roll Call Votes..................................................     5
Application of Law to the Legislative Branch.....................     6
Statement of Oversight Findings and Recommendations of the 
  Committee......................................................     6
Statement of General Performance Goals and Objectives............     6
Constitutional Authority Statement...............................     6
Federal Advisory Committee Act...................................     6
Unfunded Mandates Statement......................................     6
Earmark Identification...........................................     6
Committee Estimate...............................................     6
Budget Authority and Congressional Budget Office Cost Estimate...     7
Changes in Existing Law Made by the Bill, as Reported............     7

  The amendment is as follows:

  In section 721 of title 31, United States Code, as proposed 
to be added by section 4, add at the end the following new 
subsection (and make appropriate conforming changes):

  ``(d)(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.''.

                          Purpose and Summary

    H.R. 6388, the Government Accountability Office Improvement 
Act of 2008, was introduced by Chairman Henry A. Waxman on June 
26, 2008, with 18 other committee chairs as original 
cosponsors. H.R. 6388 enhances and clarifies the investigative 
authorities of the Government Accountability Office (GAO) in a 
number of important ways.

                  Background and Need for Legislation

    GAO assists Congress in identifying waste, fraud, and abuse 
in federal programs and recommending ways to make government 
work better. Because of its vital role, GAO needs unfettered 
access to federal agencies. Efforts by executive branch 
officials to withhold information from GAO impede Congress' 
ability to legislate effectively, conduct meaningful oversight, 
and audit the use of appropriated funds.
    The bill improves the investigative authorities of GAO in a 
number of ways. The bill makes clear that GAO is authorized to 
pursue civil actions if federal agencies improperly withhold 
federal records from it. H.R. 6388 also gives GAO the express 
authority to interview federal employees when conducting 
evaluations and investigations and gives GAO the authority to 
administer oaths. In addition, the bill confirms GAO's existing 
right to important records to which it has been denied access, 
including records at the Food and Drug Administration, the 
Centers for Medicare and Medicaid Services, and the Federal 
Trade Commission. Finally, the bill requires GAO to report to 
Congress if federal agencies do not cooperate with it.

                          Legislative History

    The Subcommittee on the Federal Workforce, Postal Service, 
and the District of Columbia held a hearing on March 13, 2008, 
on legislation to improve the oversight, administration, and 
investigative authorities of GAO. The witnesses were the 
Honorable Gene Dodaro, Acting Comptroller General, GAO; Paul 
Coran, Chairman, Personnel Appeals Board, GAO; Anne Wagner, 
General Counsel, Personnel Appeals Board, GAO; Curtis Copeland, 
Specialist in American National Government, Congressional 
Research Service; Shirley Jones, Representative, GAO's Employee 
Advisory Committee; Janet C. Smith, President, Ivy Planning 
Group, LLC; and Jacqueline Harpp, International Federation of 
Professional & Technical Engineers, AFL-CIO.
    Chairman Waxman introduced H.R. 6388, the Government 
Accountability Office Improvement Act of 2008, on June 26, 
2008.

                           Section-by-Section

Section 1: Short title

    The short title of the bill is the ``Government 
Accountability Office Improvement Act of 2008.''

Section 2: Authority to obtain records

    This section makes clear that Congress authorizes GAO to 
pursue civil actions if federal agencies or the White House 
improperly withhold federal records. In litigation arising from 
GAO's efforts to obtain information about the operations of 
Vice President Cheney's energy task force, a federal district 
court held that the Comptroller General lacked standing to 
enforce GAO's right to information (Walker v. Cheney, 230 F. 
Supp. 2d 51 (D.D.C. 2002)). This case was wrongly decided and 
misconstrued congressional intent regarding the role of the 
Comptroller General. The decision was also an improper invasion 
into Congress' constitutional prerogatives to determine how 
best to carry out its investigative responsibilities. While 
another court considering this issue would almost certainly 
reach a different decision, passing new legislation is the most 
expedient way to confirm the authority of the Comptroller 
General. For this reason, this section contains express 
authorization from Congress to the Comptroller General to 
pursue litigation if documents are improperly withheld from 
GAO, without the need for additional approval as the Walker v. 
Cheney court incorrectly suggested. In effect, this provision 
represents a legislative repudiation of the court's decision in 
Walker v. Cheney.
    While GAO has had a longstanding right of access to agency 
records, its audit, evaluation, and investigation efforts have 
occasionally been frustrated by a lack of willingness on the 
part of agency officials and employees to discuss the 
information contained in those records, as well as background 
information relevant to programs under review. In addition, 
many agency activities are not documented for subsequent audit, 
and cooperation from these individuals provides the only viable 
means for GAO to obtain critical information about these 
activities. Accordingly, this section also enhances GAO's 
existing access authority by providing an express right to 
interview agency officers and employees under section 716(a) of 
Title 31.

Section 3: Administering oaths

    This section amends 31 U.S.C. Sec. 711 to allow the 
Comptroller General greater authority, subject to appropriate 
safeguards, to administer oaths to witnesses. Presently, 
section 711 authorizes the Comptroller General to administer 
oaths when auditing and settling accounts. When GAO was 
established in 1921, auditing and settling accounts were its 
principal focus, but that is no longer the case. The 
Comptroller General has been called upon to perform many other 
audit, investigative, and adjudicative roles for the Congress. 
These roles periodically raise situations involving potential 
criminal or ethical violations or conflicting testimony or 
assertions concerning material and sensitive subjects. In such 
situations, the ability to administer oaths can be an important 
tool for the Comptroller General to accomplish the Comptroller 
General's work for the Congress.

Section 4: Access to certain information

    Section 4 adds a new section 721 to title 31 to ensure that 
provisions contained in the Social Security Act, the Federal 
Food, Drug, and Cosmetic Act, and the Hart-Scott-Rodino Act are 
not construed to limit GAO's rights of access to agency 
information.
    The new section 721(a) is intended in part to correct an 
erroneous interpretation by the Department of Health and Human 
Services of provisions of the Social Security Act pertaining to 
the Medicare prescription drug benefit (Part D). Under its 
interpretation, the Department has refused to disclose certain 
information related to Medicare Part D to GAO. The new section 
721(a) provision confirms GAO's right to obtain information 
from the Department and ensures that GAO is able to conduct 
congressionally requested and statutorily required audits, 
including audits of Parts C and D of the Medicare program. The 
Committee is aware that there are efforts by the Ways and Means 
Committee to pass similar corrective legislation to clarify the 
rights that other congressional support agencies, like the 
Congressional Research Service, have to this information. The 
Committee fully supports these efforts, but could not include 
those provisions in this bill because it does not have 
jurisdiction over legislative branch agencies other than GAO.
    The Food and Drug Administration, citing a provision of the 
Federal Food, Drug, and Cosmetic Act, has taken the position 
that it will only disclose trade secrets information to GAO for 
studies conducted at the request of a chair of a committee or 
subcommittee of jurisdiction, and only when the requests for 
the studies specifically refer to GAO's need for such 
information. The new section 721(b) is designed to remove any 
doubt as to GAO's authority to obtain trade secrets information 
from the Food and Drug Administration, including when GAO is 
conducting an investigation at the Comptroller General's 
initiative.
    The Federal Trade Commission has cited provisions of the 
Hart-Scott-Rodino Act to deny GAO access to pre-merger 
information and will only provide such information to the 
chairman of a committee or subcommittee of Congress. Hart-
Scott-Rodino exempts from public disclosure, under the Freedom 
of Information Act (FOIA), the pre-merger materials required to 
be filed with the FTC and the Department of Justice. However, 
because FOIA does not apply to GAO, access to these pre-merger 
filings under GAO's basic access authority should continue to 
apply. The new section 721(c) makes clear GAO's authority to 
obtain this information from the Federal Trade Commission and 
the Department of Justice.

Section 5: Comptroller General reports

    This section amends 31 U.S.C. Sec. 719 by adding two new 
reporting requirements. The first is designed to provide 
critical information to the Congress regarding the overall 
cooperation of federal agencies in all aspects of the work of 
GAO. It does so by requiring that for all agencies subject to 
the Chief Financial Officers Act of 1990 (31 U.S.C. 
Sec. Sec. 901-903), and other agencies designated by the 
Comptroller General, the Comptroller General will report to 
Congress annually regarding the overall degree of cooperation 
exhibited by the agencies or their staff in making personnel 
available for interviews, in providing written answers to 
questions, in submitting to an oath authorized by the 
Comptroller General, in granting access to records, in 
providing timely comments to draft reports, in adopting report 
recommendations, and in responding to such matters as the 
Comptroller General deems appropriate. Section 5 also requires 
that the Comptroller General report to Congress, as soon as 
practicable, when an agency or other entity does not respond to 
a request regarding the matters discussed above.
    These reporting requirements will enable the Comptroller 
General to keep Congress apprised of the general state of 
cooperation between GAO and other agencies and entities 
concerning the work of the office. While the Comptroller 
General will advise Congress as soon as practicable when GAO 
concludes that an agency or entity is not reasonably 
cooperating in an audit or investigation, it is anticipated 
that the annual report will provide greater insight into the 
ongoing relationships between GAO and the agencies it audits 
and investigates in a balanced and fair manner.

                       Explanation of Amendments

    During the business meeting Rep. Waxman, together with 
Ranking Member Davis, offered an amendment to the bill which 
passed by voice vote. The amendment to section 4 of the bill 
adds as new subsection 721(d) to title 31, United States Code, 
a requirement that GAO prescribe procedures necessary to ensure 
that the trade secret and other sensitive information protected 
from public disclosure covered by that section remains 
confidential. The amendment also provides that nothing in the 
section shall be construed to amend the prohibitions against 
the disclosure of such information contained in section 1905 of 
title 18. The amendment further ensures that section 716(e) of 
title 31, which requires GAO to treat information it receives 
in the same manner as the head of the agency from which it is 
received would treat such information, continues to apply.

                        Committee Consideration

    On Wednesday, July 16, 2008, the Committee met in open 
session and favorably ordered H.R. 6388 to be reported to the 
House by a voice vote.

                             Rollcall Votes

    No rollcall votes were held.

              Application of Law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1 requires a 
description of the application of this bill to the legislative 
branch where the bill relates to terms and conditions of 
employment or access to public services and accommodations. 
H.R. 6388 contains no provisions which relate to the terms and 
conditions of employment.

  Statement of Oversight Findings and Recommendations of the Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
(2)(b)(1) of rule X of the Rules of the House of 
Representatives, the Committee's oversight findings and 
recommendations are reflected in the descriptive portions of 
this report, including the need to clarify and enhance the 
investigative authorities of GAO.

         Statement of General Performance Goals and Objectives

    In accordance with clause 3(c)(4) of rule XIII of the Rules 
of the House of Representatives, the Committee's performance 
goals and objectives are reflected in the descriptive portions 
of this report, including increasing the efficiency and 
effectiveness of GAO.

                   Constitutional Authority Statement

    Under clause 3(d)(1) of rule XIII of the Rules of the House 
of Representatives, the Committee must include a statement 
citing the specific powers granted to Congress to enact the law 
proposed by H.R. 6388. Article I, section 8, clause 18 of the 
Constitution of the United States grants the Congress the power 
to enact this law.

                     Federal Advisory Committee Act

    The Committee finds that the legislation does not establish 
or authorize the establishment of an advisory committee within 
the definition of 5 U.S.C. App., section 5(b).

                      Unfunded Mandates Statement

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by section 101(a)(2) of the Unfunded 
Mandates Reform Act, P.L. 104-4) requires a statement on 
whether the provisions of the report include unfunded mandates. 
In compliance with this requirement the Committee has received 
a letter from the Congressional Budget Office included herein.

                         Earmark Identification

    H.R. 6388 does not include any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9(d), 9(e), or 9(f) of rule XXI.

                           Committee Estimate

    Clause 3(d)(2) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison by the 
Committee of the costs that would be incurred in carrying out 
H.R. 6388. However, clause 3(d)(3)(B) of that rule provides 
that this requirement does not apply when the Committee has 
included in its report a timely submitted cost estimate of the 
bill prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act.

     Budget Authority and Congressional Budget Office Cost Estimate

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the Rules of the House of Representatives and section 
308(a) of the Congressional Budget Act of 1974 and with respect 
to requirements of clause 3(c)(3) of rule XIII of the Rules of 
the House of Representatives and section 402 of the 
Congressional Budget Act of 1974, the Committee has received 
the following cost estimate for H.R. 6388 from the Director of 
the Congressional Budget Office:

                                                     July 17, 2008.
Hon. Henry A. Waxman,
Chairman, Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 6388, the 
Government Accountability Office Improvement Act of 2008.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Deborah Reis.
            Sincerely,
                                                   Peter R. Orszag.
    Enclosure.

H.R. 6388--Government Accountability Office Improvement Act of 2008

    H.R. 6388 would provide additional authorities to the 
Government Accountability Office (GAO), including the authority 
to obtain certain records and administer oaths to witnesses. 
The bill also would require GAO to establish procedures to 
protect certain proprietary information that it collects when 
carrying out its responsibilities.
    CBO estimates that implementing H.R. 6388 would have no 
significant effect on the federal budget. The additional 
authorities provided by the bill would facilitate GAO's audit 
procedures and other activities. The requirement to protect 
confidential information would have no effect because the 
agency already has such procedures in place.
    H.R. 6388 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on state, local, or tribal governments.
    The CBO staff contact for this estimate is Deborah Reis. 
The estimate was approved by Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, 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, UNITED STATES CODE

           *       *       *       *       *       *       *

SUBTITLE I--GENERAL

           *       *       *       *       *       *       *

              CHAPTER 7--GOVERNMENT ACCOUNTABILITY OFFICE

           SUBCHAPTER I--DEFINITIONS AND GENERAL ORGANIZATION

Sec.
701.  Definitions.
     * * * * * * *

                SUBCHAPTER II--GENERAL DUTIES AND POWERS

     * * * * * * *
721.  Access to certain information.

           *       *       *       *       *       *       *

                SUBCHAPTER II--GENERAL DUTIES AND POWERS

Sec. 711. General authority

  The Comptroller General may--
          (1) * * *

           *       *       *       *       *       *       *

          [(4) administer oaths to witnesses when auditing and 
        settling accounts.]
          (4) administer oaths to witnesses, except that, in 
        matters other than auditing and settling accounts, the 
        authority of an officer or employee to administer oaths 
        to witnesses pursuant to a delegation under paragraph 
        (2) shall not be available without the prior express 
        approval of the Comptroller General (or a designee).

           *       *       *       *       *       *       *

Sec. 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 under 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 an agency 
record and interview agency officers and employees to get the 
information. This subsection does not apply to expenditures 
made under section 3524 or 3526(e) of this title.

           *       *       *       *       *       *       *

Sec. 719. Comptroller General reports

  (a) * * *
  (b)(1) The Comptroller General shall include in the report to 
Congress under subsection (a) of this section--
          (A) * * *
          (B) information on carrying out duties and powers of 
        the Comptroller General under clauses (A) and (C) of 
        this paragraph, subsections (g) and (h) of this 
        section, and sections 717, 731(e)(2), 734, 1112, and 
        1113 of this title; [and]
          (C) the name of each officer and employee of the 
        Government Accountability Office assigned or detailed 
        to a committee of Congress, the committee to which the 
        officer or employee is assigned or detailed, the length 
        of the period of assignment or detail, a statement on 
        whether the assignment or detail is finished or 
        continuing, and compensation paid out of appropriations 
        available to the Comptroller General for the period of 
        the assignment or detail that has been completed[.]; 
        and
          (D) for agencies subject to sections 901 to 903 and 
        other agencies designated by the Comptroller General, 
        an assessment of their overall degree of cooperation in 
        making personnel available for interview, providing 
        written answers to questions, submitting to an oath 
        authorized by the Comptroller General under section 
        711, granting access to records, providing timely 
        comments to draft reports, adopting recommendations in 
        reports and responding to such other matters as the 
        Comptroller General deems appropriate.

           *       *       *       *       *       *       *

  (c) The Comptroller General shall report to Congress--
          (1) * * *
          (2) on the adequacy and effectiveness of--
                  (A) * * *
                  (B) inspections by an agency of offices and 
                accounts of fiscal officials; [and]
          (3) as frequently as practicable on audits carried 
        out under sections 713 and 714 of this title[.]; and
          (4) as soon as practicable when an agency does not, 
        within a reasonable time, respond to a request by the 
        Comptroller General regarding any matter described in 
        subsection (b)(1)(D).

           *       *       *       *       *       *       *

Sec. 721. Access to certain information

  (a) No provision of the Social Security Act shall be 
construed to limit, amend, or supersede the authority of the 
Comptroller General to obtain any information, to inspect any 
record, or to interview any officer or employee under section 
716 of this title, including with respect to any information 
disclosed to or obtained by the Secretary of Health and Human 
Services under part C or D of title XVIII of the Social 
Security Act.
  (b) No provision of the Federal Food, Drug, and Cosmetic Act 
shall be construed to limit, amend, or supersede the authority 
of the Comptroller General to obtain any information, to 
inspect any record, or to interview any officer or employee 
under section 716 of this title, including with respect to any 
information concerning any method or process which as a trade 
secret is entitled to protection.
  (c) No provision of the Hart-Scott-Rodino Antitrust 
Improvements Act of 1976 and the amendments made by that Act 
shall be construed to limit, amend, or supersede the authority 
of the Comptroller General to obtain any information, to 
inspect any record, or to interview any officer or employee 
under section 716 of this title, including with respect to any 
information disclosed to the Assistant Attorney General of the 
Antitrust Division of the Department of Justice or the Federal 
Trade Commission for purposes of pre-merger review under 
section 7A of the Clayton Act (15 U.S.C. 18a).
  (d)(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.

           *       *       *       *       *       *       *

                            ADDITIONAL VIEWS

    I had several concerns about H.R. 6388 as originally 
introduced. The bill would have included new language giving 
GAO specific access to Medicare Part D data held by the 
Department of Health and Human Services as well as trade 
secrets data held by the Food and Drug Administration. Congress 
has access to that information now and no new language should 
be necessary. The original bill also included broad language to 
expand GAO's authority to interview agency employees and 
administer oaths to witnesses in conjunction with 
investigations.
    Generally, I had concerns that, by so substantially 
increasing GAO's investigative powers, we might be triggering a 
chilling effect on GAO's relationship with federal agencies--
resulting in agencies being less forthcoming in providing 
information and diminishing GAO's role in improving government 
operations and promoting best practices in the federal 
government.
    However, the amendment adopted by the Committee improved 
the original bill. Specifically, section 4 of the bill now 
includes language to ensure GAO will protect the most sensitive 
data it obtains under this section. Now, section 4 would 
clarify GAO's access to data specific to:
          (l) Medicare Part D held by the Department of Health 
        and Human Services;
          (2) trade secrets held by the Food and Drug 
        Administration; and
          (3) proprietary commercial information held by the 
        Antitrust Division of the Justice Department and the 
        Federal Trade Commission.
    While GAO maintains it has access to this information under 
current law, these provisions are intended to remedy problems 
GAO has encountered in getting agencies to voluntarily turn 
over such sensitive data.
    The amendment adopted by the Committee attempts to ensure 
this data--containing valuable trade secrets and other 
confidential commercial--is not disclosed. Specifically, the 
new language makes clear that any sensitive data obtained by 
GAO is to be protected against improper disclosure by 
application of the criminal prohibitions of the Trade Secrets 
Act, 18 U.S.C. 1905. And, it emphasizes the current protections 
contained in 31 U.S.C. 716(e). This section in current law 
requires GAO to maintain the level of confidentiality required 
of the agency providing the information and subjects GAO 
employees to statutory penalties for improper disclosure.
    While it still is not clear we need section 4 at all, the 
amendment adopted by the Committee gives me a sufficient level 
of comfort that information containing trade secrets and other 
confidential commercial data to which GAO has access will be 
protected against improper disclosure.
                                                         Tom Davis.

                                  
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