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[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

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

 
            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.
---------------------------------------------------------------------------
    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.

                                  
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