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Title II — Strengthening Transparency and Reporting

S. 3889 · 116th Congress · Jun 4, 2020 · Lineage

II Strengthening Transparency and Reporting

A Funds Management and Reporting to the Congress

Sec. 201 Expired balance reporting in the President’s budget

Section 1105(a) of title 31, United States Code, is amended by adding at the end the following:

“(40) for the budget for each of fiscal years 2022 through 2026, a report—

“(A) identifying unobligated expired balances as of the beginning of the current fiscal year and the beginning of each of the preceding 2 fiscal years by agency and the applicable Treasury Appropriation Fund Symbol or fund account; and

“(B) providing an explanation of expired balances in any Treasury Appropriation Fund Symbol or fund account that exceed the lesser of 5 percent of total appropriations made available for that account or $100,000,000.”

Sec. 202 Cancelled balance reporting in the President’s budget

Section 1105(a) of title 31, United States Code, as amended by section 201 of this Act, is further amended by adding at the end the following:

“(41) for the budget for each of fiscal years 2022 through 2026, a report—

“(A) identifying cancelled balances (pursuant to section 1552(a)) for the preceding 3 fiscal years by agency and Treasury Appropriation Fund Symbol or fund account;

“(B) providing an explanation of cancelled balances in any Treasury Appropriation Fund Symbol or fund account that exceed the lesser of 5 percent of total appropriations made available for that account or $100,000,000; and

“(C) including a tabulation, by Treasury Appropriation Fund Symbol or fund account and appropriation, of all balances of appropriations available for an indefinite period in an appropriation account available for an indefinite period that do not meet the criteria for closure under section 1555, but for which either—

“(i) the head of the agency concerned or the President has determined that the purposes for which the appropriation was made have been carried out; or

“(ii) no disbursement has been made against the appropriation—

“(I) in the prior year and the preceding fiscal year; or

“(II) in the prior year and which the budget estimates zero disbursements in the current year.”

Sec. 203 Lapse in appropriations reporting in the President’s budget

Section 1105(a) of title 31, United States Code, as amended by section 202 of this Act, is further amended by adding at the end the following:

“(42) a report—

“(A) identifying any obligation or expenditure made by a department or agency affected in whole or in part by any lapse in appropriations of not less than 5 consecutive days during the preceding fiscal year; and

“(B) with respect to any such obligation or expenditure, providing—

“(i) the amount so obligated or expended, the account affected, and an explanation of which Antideficiency Act exceptions permitted the department or agency, as the case may be, to incur such obligation or expenditure; and

“(ii) an explanation of any changes in the application of any Antideficiency Act exception for a program, project, or activity from any explanations previously reported on pursuant to this paragraph.”

Sec. 204 Transfer and other repurposing authority reporting in the President’s budget

Section 1105(a) of title 31, United States Code, as amended by section 203 of this Act, is further amended by adding at the end the following:

“(43) for the budget for fiscal year 2022, a report—

“(A) identifying any transfer authority or other authority to repurpose appropriations provided in a law other than an appropriation Act; and

“(B) with respect to any such authority, providing the citation to the statute, the list of departments or agencies covered, an explanation of when such authority may be used, and an explanation of any use of such authority in the preceding 3 fiscal years.”

Sec. 205 Authorizing cancellations in indefinite accounts by appropriation

(a)
In general— Subchapter IV of chapter 15 of title 31, United States Code, is amended by inserting after section 1555 the following:

“1555a. Cancellation of appropriations available for indefinite periods within an account

“Any remaining balance (whether obligated or unobligated) from an appropriation available for an indefinite period in an appropriation account available for an indefinite period that does not meet the requirements for closure under section 1555 shall be canceled, and thereafter shall not be available for obligation or expenditure for any purpose, if—

“(1) the head of the agency concerned or the President determines that the purposes for which the appropriation was made have been carried out; and

“(2) no disbursement has been made against the appropriation for 2 consecutive fiscal years.”

(b)
Clerical amendment— The table of sections for subchapter IV of chapter 15 of title 31, United States Code, is amended by inserting after the item relating to section 1555 the following:

B Empowering Congressional Review through Nonpartisan Congressional Agencies and Transparency Initiatives

Sec. 211 Requirement to respond to requests for information from the Government Accountability Office for budget and appropriations law decisions

(a)
In general— Subchapter II of chapter 7 of title 31, United States Code, is amended by adding at the end the following:

“722. Requirement to respond to requests for information from the Government Accountability Office for budget and appropriations law decisions

“(a) If an executive agency or the District of Columbia government receives a written request for information, documentation, or views from the Government Accountability Office relating to a decision or opinion on budget or appropriations law, the executive agency or the District of Columbia government shall provide the requested information, documentation, or views not later than 20 days after receiving the written request, unless such written request specifically provides otherwise.

“(b) If an executive agency or the District of Columbia government fails to respond to a request for information, documentation, or views described in subsection (a) within the time required by such subsection—

“(1) the Comptroller General shall notify, in writing, the Committee on Oversight and Reform of the House of Representatives, the Committee on Homeland Security and Governmental Affairs of the Senate, and any other appropriate congressional committee of the House of Representatives or the Senate of such failure;

“(2) the Comptroller General is hereby expressly empowered, through attorneys selected by the Comptroller General, to bring a civil action in the United States District Court for the District of Columbia to require such information, documentation, or views to be produced; and

“(3) the court in a civil action brought under paragraph (2) is expressly empowered to enter against any department, agency, officer, or employee of the United States any decree, judgment, or order which may be necessary or appropriate to require such production.

“(c) Nothing in this section shall be construed as affecting or otherwise limiting the authorities provided to the Comptroller General in section 716 of this title.”

(b)
Clerical amendment— The table of sections for subchapter II of chapter 7 of title 31, United States Code, is amended by inserting after the item relating to section 721 the following:

Sec. 212 Reporting requirements for Antideficiency Act violations

(a)
Violations of section 1341 or 1342— Section 1351 of title 31, United States Code, is amended—
(1)
by striking “If” and inserting “(a) If the Government Accountability Office, an executive agency, or the District of Columbia government determines that”;
(2)
by striking “violates” and inserting “has violated”; and
(3)
by adding at the end the following:

“(b) Each report under subsection (a) shall include—

“(1) a summary of the facts pertaining to the violation;

“(2) the title and Treasury Appropriation Fund Symbol of the appropriation or fund account;

“(3) the amount involved for each violation;

“(4) the date on which the violation occurred;

“(5) the position of any officer or employee responsible for the violation;

“(6) a statement of the administrative discipline imposed and any further action taken with respect to any officer or employee involved in the violation;

“(7) a statement of any additional action taken to prevent recurrence of the same type of violation;

“(8) a statement of any determination that the violation was not knowing and willful that has been made by the executive agency or District of Columbia government; and

“(9) any written response by any officer or employee identified by position as involved in the violation.

“(c) In the case that the Government Accountability Office issues a legal decision concluding that an officer or employee of an executive agency or an officer or employee of the District of Columbia government violated section 1341(a) or 1342 and the executive agency or District of Columbia government, as applicable, does not agree that a violation has occurred, the report under subsection (a) shall explain the position of the executive agency or District of Columbia government.”

(b)
Violations of section 1517— Section 1517 of title 31, United States Code, is amended—
(1)
in subsection (b)—
(A)
by striking “If” and inserting “If the Government Accountability Office, an executive agency, or the District of Columbia government determines that”; and
(B)
by striking “violates” and inserting “has violated”; and
(2)
by adding at the end the following:

“(c) Each report under subsection (b) shall include—

“(1) a summary of the facts pertaining to the violation;

“(2) the title and Treasury Appropriation Fund Symbol of the appropriation or fund account;

“(3) the amount involved for each violation;

“(4) the date on which the violation occurred;

“(5) the position of any officer or employee responsible for the violation;

“(6) a statement of the administrative discipline imposed and any further action taken with respect to any officer or employee involved in the violation;

“(7) a statement of any additional action taken to prevent recurrence of the same type of violation;

“(8) a statement of any determination that the violation was not knowing and willful that has been made by the executive agency or District of Columbia government; and

“(9) any written response by any officer or employee identified by position as involved in the violation.

“(d) In the case that the Government Accountability Office issues a legal decision concluding that an officer or employee of an executive agency or of the District of Columbia government violated subsection (a) and the executive agency or District of Columbia government, as applicable, does not agree that a violation has occurred, the report under subsection (b) shall explain the position of the executive agency or of the District of Columbia government.”

Sec. 213 Department of Justice reporting to Congress for Antideficiency Act violations

(a)
Violations of sections 1341 or 1342— Section 1350 of title 31, United States Code, is amended—
(1)
by striking “An officer” and inserting “(a) An officer”; and
(2)
by adding at the end the following:

“(b)

“(1) If an executive agency or the District of Columbia government reports, under section 1351, a violation of section 1341(a) or 1342, the Attorney General shall promptly review such report and investigate to the extent necessary to determine whether there are reasonable grounds to believe that the responsible officer or employee knowingly and willfully violated section 1341(a) or 1342, as applicable. If the Attorney General determines that there are such reasonable grounds, the Attorney General shall diligently investigate a criminal violation under this section.

“(2) Not later than March 31 of each year, the Attorney General shall submit to Congress and the Comptroller General a report detailing separately for each executive agency and the District of Columbia government—

“(A) the number of reports under section 1351 transmitted to the President during the preceding year;

“(B) the number of reports reviewed in accordance with paragraph (1) during the preceding year;

“(C) without identification of any individual officer or employee of an executive agency or of the District of Columbia government, a description of each investigation undertaken in accordance with paragraph (1) during the preceding year and an explanation of the status of any such investigation; and

“(D) without identification of any individual officer or employee of an executive agency or of the District of Columbia government, an explanation of any update to the status of any review or investigation previously reported pursuant to this paragraph.”

(b)
Violations of section 1517— Section 1519 of title 31, United States Code, is amended—
(1)
by striking “An officer” and inserting “(a) An officer”; and
(2)
by adding at the end the following:

“(b)

“(1) If an executive agency or the District of Columbia government reports, under section 1517(b), a violation of section 1517(a), the Attorney General shall promptly review such report and investigate to the extent necessary to determine whether there are reasonable grounds to believe that the responsible officer or employee knowingly and willfully violated section 1517(a). If the Attorney General determines that there are such reasonable grounds, the Attorney General shall diligently investigate a criminal violation under this section.

“(2) Not later than March 31 of each year, the Attorney General shall submit to Congress and the Comptroller General a report detailing separately for each executive agency and the District of Columbia government—

“(A) the number of reports under section 1517(b) transmitted to the President during the preceding year;

“(B) the number of reports reviewed in accordance with paragraph (1) during the preceding year;

“(C) without identification of any individual officer or employee of an executive agency or of the District of Columbia government, a description of each investigation undertaken in accordance with paragraph (1) during the preceding year and an explanation of the status of any such investigation; and

“(D) without identification of any individual officer or employee of an executive agency or of the District of Columbia government, an explanation of any update to the status of any review or investigation previously reported pursuant to this paragraph.”

Sec. 214 Publication of budget or appropriations law opinions of the Department of Justice Office of Legal Counsel

(a)
Schedule of publication for final OLC opinions— Each covered final OLC opinion shall be made available on the public website of the Department of Justice in a manner that is searchable, sortable, and downloadable in its entirety as soon as is practicable, and in any event—
(1)
not later than 30 days after the opinion is issued or updated if the covered final OLC opinion is issued or updated on or after the date of enactment of this Act;
(2)
not later than 1 year after the date of enactment of this Act for a covered final OLC opinion issued on or after January 20, 1993, and before the date of enactment of this Act;
(3)
not later than 2 years after the date of enactment of this Act for a covered final OLC opinion issued on or after January 20, 1981, and on or before January 19, 1993;
(4)
not later than 3 years after the date of enactment of this Act for a covered final OLC opinion issued on or after January 20, 1969, and on or before January 19, 1981; and
(5)
not later than 4 years after the date of enactment of this Act for all other covered final OLC opinions.
(b)
Exceptions and limitation on public availability of final OLC opinions—
(1)
In general— A covered final OLC opinion or part thereof may be withheld only to the extent—
(A)
(i)
information contained in the opinion was specifically authorized to be kept secret, under criteria established by an Executive order, in the interest of national defense or foreign policy;
(ii)
such information was properly classified, including all procedural and marking requirements, pursuant to such Executive order;
(iii)
such information was evaluated for declassification during the 2-year period before the date on which the covered final OLC opinion is otherwise required to be disclosed; and
(iv)
the Attorney General determines that the national defense or foreign policy interests protected outweigh the public’s interest in access to such information;
(B)
information contained in the opinion relates to the appointment of a specific individual not confirmed to Federal office;
(C)
information contained in the opinion is specifically exempted from disclosure by statute (other than section 552 or 552b of title 5, United States Code), if such statute—
(i)
requires that the material be withheld in such a manner as to leave no discretion on the issue; or
(ii)
establishes particular criteria for withholding or refers to particular types of material to be withheld;
(D)
information in the opinion includes trade secrets and commercial or financial information obtained from a person and privileged or confidential the disclosure of which would likely cause substantial harm to the competitive position of the person from whom the information was obtained;
(E)
the President, in his or her sole and nondelegable determination, formally and personally claims in writing that executive privilege prevents the release of the information and disclosure would cause specific identifiable harm to an interest protected by an exception or the disclosure is prohibited by law; or
(F)
information in the opinion includes personnel, medical, or similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
(2)
Determination to withhold— Any determination under this subsection to withhold information contained in a covered final OLC opinion shall be—
(A)
made by the Attorney General or a designee of the Attorney General;
(B)
in writing;
(C)
made available to the public not later than the date on which the covered final OLC opinion is otherwise required to be disclosed;
(D)
sufficiently detailed as to inform the public of what kind of information is being withheld and the reason therefore; and
(E)
effective only for a period of 3 years, subject to review and reissuance of a determination made and issued in accordance with this subsection.
(3)
Summaries— For any covered final OLC opinion which is withheld in full or in substantial part, a detailed unclassified summary of the opinion shall be made available to the public, not later than the date on which the covered final OLC opinion is otherwise required to be disclosed, that conveys the essence of the opinion, including any interpretations of a statute, the Constitution of the United States, or other legal authority. A notation shall be included in any published list of covered final OLC opinion regarding the extent of the withholdings.
(4)
No limitation on freedom of information— Nothing in this subsection shall be construed as limiting the availability of information under section 552 of title 5, United States Code or construed as an exemption under paragraph (3) of subsection (b) of such section.
(5)
No limitation on relief— A decision by the Attorney General to release or withhold information pursuant to this section shall not preclude any action or relief conferred under a statute or regulation that authorizes any person to request or demand the release of information.
(6)
Reasonably segregable portions of opinions to be published— Any reasonably segregable portion of a covered final OLC opinion shall be provided after withholding of the portions which are exempt from disclosure under this section. The amount of information withheld, and the exemption under which the withholding is made, shall be indicated on the released portion of the opinion, unless including that indication would harm an interest protected by the exemption under this subsection under which the withholding is made. If technically feasible, the amount of the information withheld, and the exemption under which the withholding is made, shall be indicated at the place in the opinion where such withholding is made.
(c)
Method of publication— The Attorney General shall publish each covered final OLC opinion to the extent the law permits, including by publishing the opinions on a publicly accessible website that—
(1)
with respect to each opinion—
(A)
contains an electronic copy of the opinion, including any transmittal letter associated with the opinion, in an open format that is platform independent and that is available to the public without restrictions;
(B)
provides the public the ability to retrieve an opinion, to the extent practicable, through searches based on—
(i)
the title of the opinion;
(ii)
the date of publication or revision; or
(iii)
the full text of the opinion;
(C)
identifies the time and date when the opinion was required to be published, and when the opinion was transmitted for publication; and
(D)
provides a permanent means of accessing the opinion electronically;
(2)
includes a means for bulk download of all OLC opinions or a selection of opinions retrieved using a text-based search;
(3)
provides free access to the opinions, and does not charge a fee, require registration, or impose any other limitation in exchange for access to the website; and
(4)
is capable of being upgraded as necessary to carry out the purposes of this section.
(d)
Definitions— In this section:
(1)
Covered final OLC opinion— The term covered final OLC opinion means a final OLC opinion relating to section 1301(a), 1341, 1342, 1501, 1502, 1512, 1513, 1515, 1517, or 3302(b) of title 31, United States Code, the Balanced Budget and Emergency Deficit Control Act of 1985 (2 U.S.C. 900 et seq.), the Federal Credit Reform Act of 1990 (2 U.S.C. 661 et seq.), the Impoundment Control Act of 1974 (2 U.S.C. 681 et seq.), an appropriation Act, a continuing resolution, or another provision of law providing or governing appropriations or budget authority.
(2)
Final OLC opinion— The term final OLC opinion means an OLC opinion that—
(A)
the Attorney General, Assistant Attorney General for the Office of Legal Counsel, or a Deputy Assistant General for the Office of Legal Counsel, has determined is final;
(B)
government officials or government contractors are relying on or have relied on;
(C)
is or has been relied upon to formulate legal guidance; or
(D)
is cited in another Office of Legal Counsel opinion.
(3)
OLC opinion— The term OLC opinion—
(A)
means views on a matter of legal interpretation communicated by the Office of Legal Counsel of the Department of Justice to any other office or agency, or person in an office or agency, in the executive branch, including any office in the Department of Justice, the White House, or the Executive Office of the President, and rendered in accordance with sections 511 through 513 of title 28, United States Code; and
(B)
includes any memorialization of a verbal communication that provides any views described in subparagraph (A).