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

   ------------------------

   [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.