B-114829 October 2, 1978

B-114829 October 2, 1978

The Honorable Claiborne Pell Chairman, Joint Committee on Printing Congress of the United States

Dear Mr. Chairman:

This is in response to your request of May 25, 1978, for comments regarding Title 44 of the United States Code. We understand that you Committee is reviewing the entire title with a view to recommending appropriate revisions during the 96th Congress.

A. Federal Reports Act, 44 U.S.C. Secs. 3501-3512

On September 20, 1978, we transmitted to Senator Chiles of the Senate Governmental Affairs Committee and to Congressman Frank Horton of the House Government Operations Committee draft legislative proposals which would, among other things, amend Chapter 35 of Title 44 of the U.S. Code by consolidating Federal Reports Act (FRA) review and clearance responsibilities either in the Office of Management and Budget (OMB) or in a newly created independent commission.

We recommend for you consideration on of those proposals which return FRA clearance responsibilities to OMB. See Attachment I. By amending Chapter 35 of Title 44, section4 of this proposal returns GAO's clearance functions to OMB, and thereby, in effect, repeals the Alaska Pipeline Act amendments which gave GAO such responsibilities with regard to independent regulatory agencies. To maintain these regulatory agencies' independence, this proposal gives Congress veto authority over denial of independent regulatory agencies' reporting requirements. The proposal to consolidate clearance functions in OMB, and some of the proposals listed below, follow recommendations of the Commission on Federal Paperwork.

In this proposal, other FRA changes with are designed to resolve problems that GAO has encountered in meeting its responsibilities under the Act include:

--specific inclusion of recordkeeping requirements in the FRA review process. This change to the definition of information in section 3502 would conform to current practice and would eliminate a problem which has contribute to major, time-consuming litigation.

--clarification of the FRA's definition of "information." This change will eliminate the ambiguity found in section 3502.

--authority for the clearance agency to plan information-collection activities, provide technical assistance, and promote use of data standards. This authority in section 3503(4) would enhance the coordination of data collection activities and increase data sharing.

--mandatory requirements for evaluation by the agencies to minimize the burden and duplication and to maximize the usefulness of a reporting or recordkeeping requirement before they request approval. This responsibility, added in section 3509(l), is intended to cause agencies to evaluate these issues more thoroughly and to reduce burdensome and duplicative requirements before submitting them for clearance.

--a specific provision stating that, except for the Internal Revenue Service, no Federal agencies are exempt from the FRA. This change in section 3507 will bring several additional agencies under the authority of the FRA and it will strengthen the clearance agency's ability to enforce compliance with the FRA.

--the imposition of a 60-day time limit with possible extensions for clearance agency review. This amendment, included in Section 3511, provides a reasonable amount of time for the clearance agency to conduct its review while maintaining a deadline for completing that review.

--establishing a procedure whereby OMB notifies certain congressional committees of FRA violations. This change (new section 3512) will create a record for congressional consideration and action.

--requiring OMB to evaluate each agency's information management controls and to inform Congress periodically of its findings. This new requirement, also in the new section 3512, will cause OMB to identify ways to improve individual agencies' information management controls.

In addition, technical changes have also been made in the attached proposal.

As an alternative to this proposal which consolidates FRA clearance functions in OMB, we also propose a more limited revision to Chapter 35 of Title 44. This limited proposal includes modifications of a perfecting nature rather than substantive policy changes such as those recommended in the proposal already discussed or those in our Report to the Congress entitled, "Status of GAO's Responsibilities Under the Federal Reports Act," (CSP-76-14, May 28, 1976). See Attachment II, pages 20-28.

While retaining GAO as the clearance office for independent regulatory agencies, this limited alternative would eliminate certain ambiguities in the existing statute and would enable GAO to execute its FRA responsibilities more effectively. This proposal includes the changes discussed above to the definition of "information in 44 U.S.C. 3502--adding recordkeeping requirements and generally clarifying the definition--and recommends revising 44 U.S.C. 3512(c) and (d) to read as follows:

"(c) In complying with this section, an independent regulatory agency shall not conduct or sponsor the collection of information upon an identical item from ten or more persons, other than Federal employees, unless, in advance of adoption of revision of any reporting or recordkeeping requirements to be used in the collection--

"(1) the agency submitted to the Comptroller General those requirements, together with the copies of pertinent regulations and of other related materials as the Comptroller General has specified; and

"(2) the Comptroller General has determined that the information is not presently available to the independent agency from another source within the Federal Government and has determined that the proposed reporting or recordkeeping requirements are consistent with the provisions of this section. The Comptroller General shall maintain facilities for carrying out the purposes of this section and shall make the required determinations within sixty days.

"This subsection applies to all reporting and recordkeeping requirements which independent Federal regulatory agencies subject to this section use to collect information, for any purpose, on an identical item from ten or more persons.

"(d) While the Comptroller General shall determine the availability from other Federal sources of the information sought and the appropriateness of the forms for the collection of such information, the independent regulatory agency shall make the final determination as to the necessity of the information in carrying out its statutory responsibilities and whether to collect such information. If no determination is made by the Comptroller General within sixty days, the independent regulatory agency may immediately proceed to obtain such information."

These changes will accomplish the following purposes:

1. Specify that recordkeeping requirements are covered by the FRA.

2. Clarify the definition of "information".

3. Eliminate the language in section 3512(c) which suggests that GAO's review and clearance is advisory rather than mandatory before an independent regulatory agency can collect information from ten or more persons.

4. Allow 60 days for GAO's review to provide adequate time to conduct an effective and thorough review.

5. Specify that section 3512 applies to all reporting and recordkeeping requirements imposed by subject independent regulatory agencies so that those few agencies which have effectively skirted the FRA will be compelled to comply with the Act. Legislative action is necessary to resolve this matter because the statute does not give GAO any enforcement authority and without such authority, we have not been able to enforce compliance with the statute.

B. Other provisions of Title 44

Related sections 501 and 504 have generated many problems. Section 501 requires all Government printing and binding to be done by the Government Printing Office (GPO), (with exceptions not here relevant) while section 504 permits the Joint Committee on Printing to permit the Public Printer to waive this requirement and permit Government agencies or establishments to order the work directly. More specifically section 504 states:

"The Joint Committee on Printing may permit the Public Printer to authorize an executive department, independent office, or establishment of the Government to purchase direct for its use such printing, binding, and blank-book work, otherwise authorized by law, as the Government Printing Office is not able to suitably equipped to execute or as may be economically or in the better interest of the Government executed elsewhere."

The problem arising under these sections occur when a Government agency or commission enters into a contract with a private printing firm prior to seeking a waiver from the Joint Committee and the printer performs the contract without prior knowledge of any legal impediment. Contracts prohibited by law impose no legal obligation on the Government. The United States is not bound by the unauthorized acts of its officers or agents in entering into or authorizing contracts, even if the Government received the benefits of the printing. See 22 Comp. Gen. 784, 788 (1943). Thus, private printers may not be paid for their efforts.

In one case, a private printer, in good faith, printed a report for the National Advisory Council on Adult Education, a Presidentially appointed public advisory body under the Office Of Education, Department of Health, Education, and Welfare. A waiver was not sought prior to the making the contract, and the printer was not paid, nor could this Office approve its claim. (B-178496, October 9, 1973.) The printer could only seek a retroactive waiver, which the Joint Committee in its discretion did not grant. In view of these situations, some modifications of the waiver requirement or other legislative action might be desirable.

Section 1108 authorizes the head of "an executive department, independent agency or establishment," with the approval of the Director of OMB, to use available appropriations for the printing of "journals, magazines, periodicals and similar publications" certified as necessary in the transaction of required public business. It is not clear if this is intended to apply to GAO. On the one hand, "independent establishment" is defined in 5 U.S.C. 104 to include GAO, at least for purposes of Title 5. Yet on the other hand, since GAO is not part of the executive branch, it is generally not subject to OMB oversight in other areas, such as the annual budget presentation. Consistent with GAO's role as independent of the executive branch, were recommend that section1108 be clarified to specifically exempt GAO from the requirement of OMB approval.

Problems have also arisen under Sec. 3702 which states:

"Advertisements, notices, or proposals for an executive department of the Government, or for a bureau or office connected with it , may not be published in a newspaper, except under written authority from the head of the department; and a bill for advertising or publication may not be paid unless there is presented with the bill a copy of the written authority."

We have considered a number of cases in which advertisements were published without the proper authorization, and as a result, the printer was unable to collect his fee. In one instance, a newspaper advertisement to recruit personnel for the U.S. Forest Service was ordered by an agency official ostensibly authorized to procure the service but who was not the head of the agency or his delegee. The advertisement was published but we had to find that the voucher could not be certified without the mandatory authorization. (B181337, November 25, 1974.) Relief can only be granted in these cases pursuant to the Meritorious Claims Act, 31 U.S.C. Sec. 236 (1970), even though the printer acts in good faith in furnishing the advertising, and the Government benefits from such advertisement.

We also not the cumbersome provisions in Sec. 3703 prescribing rates for payments for advertisements, notices, and proposals. This section is no longer needed in view of the procurement procedures implementing the Federal Property and Administrative Services Act of 1949, 41 U.S.C. 251 et seq., and the Armed Services Procurement Act of 1947, 10 U.S.C. 2301 et seq.

By letter dated November 25, 1974, we recommended to the Congress that both sections 3702 and 3703 be repealed. A copy of our letter to the Speaker, House of Representatives, is attached (Attachment III), providing more detailed justification. (The identical letter was also sent to the President pro tempore of the Senate.) We reaffirm that recommendation.

We hope this material is helpful in your Committee's review of Title 44.

Sincerely yours,

R. F. KELLER Deputy Comptroller General of the United States