TITLE: B-306748, Customs and Border Protection--Relocation Expenses, July 6, 2006
BNUMBER: B-306748
DATE: July 6, 2006
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B-306748, Customs and Border Protection--Relocation Expenses, July 6, 2006
Decision
Matter of: Customs and Border Protection--Relocation Expenses
File: B-306748
Date: July 6, 2006
DIGEST
Customs and Border Protection's Salaries and Expenses appropriations are
available to pay for relocation expenses that agency employees incur to
relocate their primary residences from Canada and Mexico to the United
States in order to comply with a new agency requirement that Customs
employees assigned to duty stations in the United States maintain their
primary residence in the United States. Customs has determined that U.S.
residency enables its border workforce to better carry out its mission.
Accordingly, GAO does not object to Customs using its appropriations to
pay relocation costs if Customs chooses to do so.
DECISION
The Department of Homeland Security, U.S. Customs and Border Protection
(Customs) has requested an advance decision under 31 U.S.C. sect. 3529 on
whether it may pay the expenses that its employees who currently reside in
Canada or Mexico will incur in order to comply with an agency directive
that their primary residence be in the United States. The employees in
question work at border stations within the United States. For reasons of
national security, Customs is requiring that its employees who are
stationed at the U.S. border live within the United States. As explained
below, we would not object to Customs using its appropriated funds if it
chooses to do so to pay the relocation costs that its employees incur to
comply with the residency requirement.
BACKGROUND
Customs has employees who are assigned to border stations or ports within
the United States but who reside across the border in Canada or Mexico.
Letter from Anthony L. Smith, Certifying Officer, U.S. Customs and Border
Protection, to the Comptroller General, GAO, Sept. 28, 2005 (Smith
Letter). In the past, Customs did not have a policy addressing employee
residence. However, as a result of the events of September 11, 2001, the
agency views foreign residence as a security concern. Id. Accordingly, in
August 2005, the Commissioner issued a directive requiring employees
assigned to duty stations in the United States to maintain their primary
residence in the United States. U.S. Customs and Border Protection
Directive No. 51332-016 (Aug. 22, 2005). Employees who fail to comply with
the directive's requirement are subject to disciplinary action, including
separation from employment. Id.
Customs asks if it may use its appropriated funds to pay the expenses that
its employees will incur in moving their primary residences. It notes that
the Federal Travel Regulation is silent on the question of benefits for
employees' relocations that do not involve a change in duty station. 41
C.F.R. chs. 300--304. The agency argues that its appropriations should be
available for the employees' expenses under the necessary expense rule.
Smith Letter.
DISCUSSION
Appropriated funds are available only for the objects for which they were
made except as otherwise provided by law. 31 U.S.C. sect. 1301(a).
However, every item of expenditure need not be specified in an
appropriation act. B-306424, Mar. 24, 2006. Under the necessary expense
rule, appropriations are available for expenses which are necessary or
incident to the proper execution or achievement of the object of the
appropriation. B-303145, Dec. 7, 2005. The necessary expense rule
recognizes that when Congress makes an appropriation for a particular
purpose, by implication it authorizes the agency involved to incur
expenses which are necessary or incident to the accomplishment of that
purpose. See 6 Comp. Gen. 619, 621 (1927).
We employ a three-part test to determine whether an appropriation is
available for a particular expenditure under the necessary expense rule:
(1) the expenditure must bear a logical relationship to the purpose of the
appropriation sought to be charged; (2) the expenditure may not be
prohibited by law; and (3) the expenditure must not be provided for by
another appropriation. 63 Comp. Gen. 422, 427--428 (1984). We identified
no law prohibiting Customs from using funds appropriated to it to pay the
expenses in question, nor any appropriation which specifically provides
funds for that purpose. Accordingly, what remains to be determined is
whether the relocation expenses at issue bear a logical relationship to
the purpose of Customs' appropriation.
The Department of Homeland Security Appropriations Act, 2006, appropriated
under the heading, "Customs and Border Protection Salaries and Expenses,"
(S&E) $4,826,323,000, for "necessary expenses" for, among other things,
the "enforcement of laws relating to border security." Pub. L. No. 109-90,
title II, 119 Stat. 2064, 2066 (Oct. 18, 2005). Customs new residency
requirement is related to the enforcement of border security.
Customs' request letter and residency directive set forth the agency's
reasons behind its residency requirement. Customs' letter states that U.S.
residency insures the integrity of its workforce, maintains employee
operational responsiveness in the post-9/11 environment, and protects its
employees. Smith Letter. In addition, the agency's rationale for requiring
its border guards to reside in the United States is set forth in its
directive as follows:
"CBP employees who work in the United States but reside in a foreign
country with and among foreign nationals may appear to have a conflict
of interest between their official duties and the interests of the
country in which they reside. They may also be at risk for knowingly or
unknowingly compromising security practices and procedures, thus
facilitating the illegal entry of foreign nationals, terrorists and/or
terrorist weapons. In addition, CBP employees must be able to respond
rapidly and effectively to operational mobilization in emergency
situations, such as acts of terror, when borders may be tightened or
closed."
U.S. Customs and Border Protection Directive No. 51332-016, para. 3.
It is well settled that agencies have reasonable discretion in determining
how to carry out the objects of their appropriations. B-306424, Mar. 24,
2006. As the agency charged with securing U.S. borders, Customs is in the
best position to determine whether foreign residency could compromise
security procedures and practices. The impact, for example, on operational
effectiveness of an emergency border closing is fairly obvious. The
reasons that Customs gives for its directive support the conclusion that
U.S. residency enhances border security law enforcement. Accordingly, we
would not object to Customs' use of its Salaries and Expenses
appropriations funds for this purpose if it chooses to do so.
This case is distinguishable from 61 Comp. Gen. 357 (1982). In that
decision, the Merit Systems Protection Board (MSPB) sought to reimburse
its incumbent appeals officers for their initial bar admission fees. MSPB
had not required that its appeals officers be members of a bar, but in
response to criticism leveled against the officers, MSPB imposed a new
requirement that all appeals officers had to be attorneys admitted to a
bar. MSPB argued that it should be allowed to pay the admission fees
because the requirement was imposed as a condition of employment after the
appeals officers had been hired and were doing their jobs for a period of
time without having to meet the qualification of being an attorney. In
response, the decision, sympathizing with the situation, states: "We have
long held that each employee must bear the costs of qualifying him/herself
for the performance of his/her official duties and that if a personal
license is necessary, the employee must procure it. 22 Comp. Gen. 460
(1942)." 61 Comp. Gen. at 359. We concluded that the Board's
appropriations were not available to pay the appeals officers' bar
admission fees. Id. at 360.[1]
The situation presented in the MSPB case is distinguishable from the one
presented here. The MSPB case concerned the use of appropriations for
employees' personal professional credentials. The decision followed our
longstanding rule that
appropriated funds are not available for such expenses, and further held
that we would not allow an exception where the government added a
professional qualification requirement after employees had been performing
the job in question without being required to hold the credential. U.S.
residency, although required of Customs employees stationed at the
borders, is not a personal professional credential qualification for
employment. Accordingly, the MSPB decision is inapplicable.
In this decision, we do not address what items of cost Customs may
consider to be relocation expenses. In that regard, we suggest that
Customs use the General Services Administration regulations relating to
relocation expenses as a guideline. Federal Travel Regulation, 41 C.F.R.
pt. 302. Moreover, we note that Customs may not pay for any relocation
expenses for which there is an absolute statutory prohibition.
CONCLUSION
Customs' Salaries and Expenses appropriations are available to pay
relocation expenses that its employees incur to comply with a new agency
requirement that Customs' employees assigned to duty stations in the
United States must maintain their primary residence in the United States.
Customs has determined that U.S. residency enables its border workforce to
better secure the borders. Accordingly, we do not object to Customs using
its appropriations to pay relocation costs.
Gary L. Kepplinger
General Counsel
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[1] After this decision, Congress passed legislation to permit agencies to
pay employees' expenses of obtaining professional credentials, should the
agencies choose to do so. Pub. L. No. 107-107, sect. 1112(a), 115 Stat.
1012, 1238-39 (Dec. 28, 2001), codified at 5 U.S.C. sect. 5757.