TITLE: B-308773, United States Capitol Police--Current Rate for Operations Under the 2007 Continuing Resolution, January 11, 2007
BNUMBER: B-308773
DATE: January 11, 2007
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B-308773, United States Capitol Police--Current Rate for Operations Under the 2007 Continuing Resolution, January 11, 2007

   Decision

   Matter of: United States Capitol Police--Current Rate for Operations Under
   the 2007 Continuing Resolution

   File: B-308773

   Date:  January 11, 2007

   DIGEST

   When calculating the current rate for operations under the 2007 Continuing
   Resolution for its General Expenses appropriation, the United States
   Capitol Police should include $4,513,671 reprogrammed within its General
   Expenses appropriation in fiscal year 2006. It should not include
   $5,486,329 transferred into its General Expenses appropriation from its
   Salaries appropriation in fiscal year 2006, nor should it include any
   unobligated no-year and multi-year balances held in the General Expenses
   appropriation at the end of fiscal year 2006.

   DECISION

   The General Counsel of the United States Capitol Police (USCP) has
   requested a decision regarding the amount appropriated to USCP under the
   Continuing Appropriations Resolution (CR), 2007, Pub. L. No. 109-289, div.
   B, 120 Stat. 1257, 1311 (Sept. 29, 2006). Letter from John T. Caulfield,
   General Counsel, USCP, to Gary L. Kepplinger, General Counsel, GAO, Dec.
   19, 2006. Specifically, he asks whether $10 million of unobligated no-year
   and multi-year balances that USCP made available for fiscal year 2006
   operational needs is part of USCP's fiscal year 2006 "General Expenses"
   appropriation for purposes of calculating the current rate under the CR.
   USCP made these amounts available for fiscal year 2006 operational needs
   via a combination of reprogrammings within its General Expenses
   appropriation and a transfer from its "Salaries" appropriation to its
   General Expenses appropriation.

   The question arises because of the formula contained in the CR for
   determining the amount of funds available during the pendency of the CR.
   For the reasons discussed below, we conclude that no-year and multi-year
   funds reprogrammed within the General Expenses appropriation are part of
   USCP's fiscal year 2006 General Expenses appropriation for purposes of
   calculating the current rate. On the other hand, the no-year funds that
   USCP transferred from its Salaries appropriation to its General Expenses
   appropriation are not. The amount transferred should be used in
   calculating the current rate under the CR for USCP's Salaries
   appropriation.

   BACKGROUND

   All federal agencies are currently operating under a continuing resolution
   with the exception of the Departments of Defense and Homeland Security.
   The CR was enacted on September 29, 2006, and funded the agencies,
   including USCP, through November 17, 2006. Pub. L. No. 109-289, div. B,
   sect. 106. Congress has twice extended this CR's duration. The first
   extension came on November 17, 2006, making the CR effective until
   December 8, 2006. Pub. L. No. 109-369, 120 Stat. 2642 (Nov. 17, 2006).
   Congress further extended the CR, with various modifications not relevant
   here, until February 15, 2007. Pub. L. No. 109-383, sect. 1, 120 Stat.
   2678 (Dec. 9, 2006). USCP is thus funded until February 15, 2007, under
   the continuing resolution first enacted on September 29, 2006.

   USCP has two appropriations relevant to this decision: the General
   Expenses appropriation and the Salaries appropriation. Congress provided
   $32 million in fiscal year funds for USCP's General Expenses appropriation
   in fiscal year 2006. Legislative Branch Appropriations Act, 2006, Pub. L.
   No. 109-55, title I, 119 Stat. 565, 572 (Aug. 2, 2005). A subsequent
   rescission reduced this amount to $31.6 million. See Emergency
   Supplemental Appropriations Act to Address Hurricanes in the Gulf of
   Mexico and Pandemic Influenza, 2006, Pub. L. No. 109-148, div. B, title
   III, ch. 8, sect. 3801, 119 Stat. 2745, 2791 (Dec. 30, 2005). The
   conference report accompanying the Legislative Branch Appropriations Act,
   2006, stated that, in addition to the $32 million, "$10,000,000 from prior
   year unobligated balances [was] available upon the approval of the"
   congressional appropriations committees. H.R. Rep. No. 109-189, at 32-33
   (2005).

   On September 29, 2005, USCP submitted its operating plan for fiscal year
   2006 to the congressional appropriations committees. Letter from Anthony
   J. Stamilio, Chief Administrative Officer, USCP, to The Honorable Jerry
   Lewis, Chairman, House Committee on Appropriations, Subject: Approval
   Request for the FY 2006 United States Capitol Police Operating Plan and
   reprogramming of unobligated balances, Sep. 29, 2005 (Stamilio Letter).
   USCP included in this document a proposal for making $10 million in prior
   year unobligated balances available as mentioned in the conference report.
   Id. The $10 million of no-year and multi-year funds was derived from a
   combination of reprogrammings within USCP's General Expenses appropriation
   and a transfer from its Salaries appropriation to the General Expenses
   appropriation. Id. The committees approved the operating plan, and in
   January 2006 USCP carried out its proposal to make the $10 million
   available for General Expenses.[1] E-mail from Maryjean Buhler, Chief
   Financial Officer, USCP, to Wesley Dunn, Staff Attorney, GAO, Jan. 5,
   2007.

   At the beginning of fiscal year 2006, USCP's General Expenses
   appropriation contained unobligated no-year and multi-year balances in
   addition to its 2006 fiscal year funds. Id. USCP received the no-year
   funds from supplemental appropriations in fiscal years 2002 and 2003, the
   Emergency Response Fund in prior fiscal years, and several other sources.
   Id. USCP also had multi-year funds derived from sales of USCP's surplus
   property made between March and September 2005.[2] Telephone conversation
   between Maryjean Buhler; Wesley Dunn; and Thomas H. Armstrong, Assistant
   General Counsel for Appropriations Law, GAO, Jan. 3, 2007 (Telephone
   Conversation); E-mail from Maryjean Buhler to Wesley Dunn, Jan. 4, 2007.
   USCP kept the no-year and multi-year funds in respective subaccounts
   within the General Expenses appropriation to maintain their identity as
   no-year and multi-year funds separate from amounts appropriated as fiscal
   year General Expenses funds. Telephone Conversation. USCP reprogrammed a
   total of $4,513,671 of these unobligated balances within its General
   Expenses appropriation to make this amount available for fiscal year 2006
   operating expenses. Stamilio Letter.

   At the beginning of fiscal year 2006, USCP's Salaries appropriation had
   available for obligation an unobligated balance of no-year funds. Id. USCP
   received these funds from the Emergency Response Fund. Id. USCP
   transferred $5,486,329 from the unobligated no-year balances in its
   Salaries appropriation to its General Expenses appropriation to make this
   amount available for fiscal year 2006 operating expenses.[3] Id.

   The question here arises because of the CR's formula for determining the
   amount of funds available to USCP during the pendency of the CR. The CR
   provides that when an agency's appropriation act has been passed by only
   the House of Representatives and not by the Senate as of November 15,
   2006, as is the case with USCP's appropriations, the agency's projects and
   activities[4] will continue "at a rate for operations not exceeding the
   current rate or the rate permitted by the action of the House, whichever
   is lower." Pub. L. No. 109-289, div. B, sect. 101(d)(1). USCP receives its
   funding through the annual Legislative Branch appropriations act, which as
   of November 15, 2006, had been passed by the House but not the Senate. The
   version of the Legislative Branch Appropriations Act for fiscal year 2007
   passed by the House, H.R. 5521, provides $38.5 million for General
   Expenses. If the full $10 million made available for General Expenses is
   part of USCP's General Expenses appropriation for fiscal year 2006 for
   purposes of calculating the current rate, the current rate would be $41.6
   million (the $31.6 million appropriated for fiscal year 2006 plus the $10
   million). In that case, under the CR formula of section 101(d)(1), the
   amount available for General Expenses would be $38.5 million--the rate
   permitted by H.R. 5521 being lower than the current rate. However, if the
   full $10 million is excluded, USCP has $31.6 million,[5] the current rate
   being lower than the rate permitted by H.R. 5521.

   ANALYSIS

   The issue before us is whether USCP should include the $10 million for
   purposes of calculating the current rate under the CR for its General
   Expenses appropriation. The term "current rate" as used in the CR refers
   to the total funds appropriated for a program or activity in the previous
   fiscal year as well as any other amount that Congress made available for
   use in that fiscal year, such as unobligated no-year and multi-year funds
   carried forward into the fiscal year, less any unobligated balances
   available at the end of that fiscal year. 58 Comp. Gen. 530 (1979);
   B-152554, Oct. 9, 1970.

   In determining the current rate for purposes of USCP's General Expenses
   appropriation, we must distinguish between the $4,513,671 reprogramming
   and the $5,486,329 transfer because reprogramming and transferring are
   fundamentally different transactions.

   A reprogramming is the application of funds already in an appropriation
   for uses other than those contemplated at the time the funds were
   appropriated. B-164912, Dec. 31, 1977. In other words, reprogramming is
   the shifting of funds from one object to another within an appropriation.
   Unless otherwise restricted by statute, agencies may reprogram funds as
   they wish to adapt to changing circumstances, and no statutory authority
   is necessary. See Lincoln v. Vigil, 508 U.S. 182, 192 (1993). When
   Congress appropriates funds to an agency, it grants the agency authority
   to shift and to use the funds within that appropriation however the agency
   sees fit to accomplish the overall purpose of the appropriation. Id.

   In fiscal year 2006, USCP reprogrammed $4,513,671 of unobligated no-year
   and multi-year funds already held in the General Expenses appropriation to
   make them available for fiscal year 2006 operational needs, specifically
   to fund its Office of Information Services and pay for fuel. Because
   Congress had already made available the $4,513,671 for General Expenses
   purposes (albeit without fiscal year limitation), USCP should consider
   this amount as part of its current rate under the CR. See, e.g., 58 Comp.
   Gen. at 532-33. USCP properly carried these no-year and multi-year
   balances in the General Expenses appropriation forward into fiscal year
   2006 from prior fiscal years; the only change that USCP effectuated with
   its reprogramming was to make the $4,513,671 available for other General
   Expenses uses (that is, fiscal year 2006 operational needs) than those
   anticipated at the time Congress appropriated the funds to USCP.[6]

   In contrast, a transfer is the shifting of funds between appropriations.
   Cf. 31 U.S.C. sect. 1532. Agencies may only transfer funds when Congress
   grants them statutory authority to do so. Id; B-286929, Apr. 25, 2001. As
   is the case here, Congress frequently leaves to agency discretion the
   decision whether to transfer funds pursuant to such statutory
   authority.[7] See, e.g., B-222686, June 11, 1986 (law providing that
   Secretary concerned "may transfer" funds grants "broad discretionary
   authority . . . to transfer funds"); B-167656, June 18, 1971 ("may
   transfer" is "discretionary language" for purposes of funds transfer). In
   fiscal year 2006, USCP transferred $5,486,329 from its Salaries
   appropriation to the General Expenses appropriation to satisfy fiscal year
   2006 operational needs.

   USCP also asks whether it may include the transfer from Salaries to
   General Expenses as part of its fiscal year 2006 General Expenses
   appropriation for purposes of calculating the current rate under the CR.
   In 1980, we considered whether an agency may include transfers when
   calculating the current rate and concluded that transfers made at an
   agency's discretion pursuant to its general transfer authority, and not
   directed by law, should not be included in the calculation. See B-197881,
   Apr. 8, 1980. In that case, the Department of the Treasury had asked about
   amounts appropriated to the Agency for International Development (AID) in
   fiscal year 1979 which AID transferred, pursuant to statutory authority
   but at its discretion, to a different account later in the fiscal year.
   Id. We determined that the fiscal year 1979 appropriation for purposes of
   calculating the current rate consisted of the entire amount originally
   appropriated in fiscal year 1979, including the amount AID subsequently
   transferred to another appropriation account. Id. Calculating the current
   rate as anything other than the amount originally appropriated "would
   distort the intent of Congress." Id. We reasoned that since it is for the
   Congress to decide the amount of an agency's appropriation, U.S. Const.
   art. I, sect. 9, cl. 7, and since AID transferred the funds upon an
   administrative determination, rather than pursuant to direction in law, to
   deduct the amount of this discretionary transfer from the amount Congress
   appropriated would in effect diminish Congress's power of the purse. Id.
   The logical corollary of this determination is that AID, when calculating
   the current rate for the account that received the transferred funds,
   could not include the transferred funds as part of the previous fiscal
   year's appropriation for the account that received the transfer.[8]

   The same principle we formulated in B-197881 applies to the transfer of
   $5,486,329 from USCP's Salaries appropriation to its General Expenses
   appropriation. Congress appropriated $31.6 million to USCP for General
   Expenses in fiscal year 2006, as well as the no-year funds in the General
   Expenses appropriation at the beginning of fiscal year 2006. Pub. L. No.
   109-55, 119 Stat. at 572. In contrast, Congress did not transfer in law
   the $5,486,329, although the conference report signaled a willingness to
   consider favorably USCP's decision to transfer that amount. To include the
   transfer as part of USCP's fiscal year 2006 General Expenses appropriation
   would be inconsistent with the long-held understanding of "current rate"
   as the amount that Congress (not the agency) had made available, in this
   case, in fiscal year 2006. See generally 58 Comp. Gen. 530; B-152554.
   Therefore, for purposes of calculating the current rate for General
   Expenses under the CR, USCP should not include as part of its fiscal year
   2006 appropriation the funds transferred from the Salaries appropriation
   to the General Expenses appropriation. Of course, consistent with the
   standard established in B-197881, USCP should include that amount in
   calculating the current rate for its Salaries appropriation.

   Accordingly, to calculate the current rate for General Expenses under the
   CR, USCP should add $31.6 million (the amount of fiscal year funds
   appropriated in fiscal year 2006), plus $4,513,671 (the amount of no-year
   and multi-year balances reprogrammed within the General Expenses
   appropriation), plus any other unobligated amounts in the General Expenses
   appropriation carried over into fiscal year 2006. To the extent that USCP
   carried forward into fiscal year 2007 unobligated no-year or multi-year
   balances in its General Expenses appropriation, these balances must be
   deducted from USCP's determination of the current rate. See 58 Comp. Gen.
   530 at 535; Cf. OMB Bulletin No. 06-04, Apportionment of the Continuing
   Resolution(s) for Fiscal Year 2007, Attachment (Sep. 29, 2006).

   Section 101(d)(1) of the CR, as previously discussed, funds USCP at a rate
   for operations not exceeding the current rate or the rate permitted by the
   action of the House ($38.5 million), whichever is lower. Therefore, if the
   current rate is greater than $38.5 million, the CR appropriates $38.5
   million to USCP for General Expenses. If the current rate is less than
   $38.5 million, the CR appropriates the lower amount for General Expenses.

   CONCLUSION

   Consistent with the foregoing analysis, funds reprogrammed in one fiscal
   year should be considered part of that year's appropriation for purposes
   of calculating the current rate for that appropriation under a continuing
   resolution for the following fiscal year. Funds transferred into an
   appropriation during one fiscal year by other than statutory direction
   should not be considered part of that year's appropriation when
   calculating the current rate for the receiving appropriation under a
   continuing resolution for the following fiscal year. Thus, of $10 million
   made available for General Expenses through reprogramming and transfer,
   USCP should consider the reprogrammed $4,513,671 as part of its 2006
   General Expenses appropriation when calculating the current rate under the
   CR, but it must exclude the transferred $5,486,329. USCP should include
   the $5,486,329 when calculating the current rate for its Salaries
   appropriation.

   Gary L. Kepplinger

   General Counsel

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

   [1] Specifically, USCP used the reprogrammed and transferred balances to
   fund its Office of Information Services and pay for fuel costs during
   fiscal year 2006. Stamilio Letter.

   [2] USCP may sell its surplus property and deposit the proceeds in its
   General Expenses appropriation. 2 U.S.C. sect. 1906. The funds remain
   available for obligation for the purposes of that appropriation during the
   fiscal year in which they are received and the following fiscal year. Id.
   In the present case, the funds were available for the portion of fiscal
   year 2005 following the sale, and all of fiscal year 2006.

   [3] USCP transferred this amount under authority of section 1001 of the
   2006 Legislative Branch Appropriations Act. E-mail from Gretchen E. DeMar,
   Acting General Counsel, USCP, to Wesley Dunn, Jan. 4, 2007.

   [4] When used in a continuing resolution to denote the level of funding
   provided, the term "projects and activities" refers to the appropriation
   as enacted in the previous fiscal year, as opposed to the various
   activities financed by that appropriation. B-204449, Nov. 18, 1981.

   [5] This amount represents only fiscal year funds, and does not include
   any other balances that may be available for inclusion in the current rate
   calculation for General Expenses.

   [6] Indeed, because the reprogrammed amounts were unobligated no-year and
   multi-year balances carried over into fiscal year 2006, the fact that USCP
   reprogrammed them is not central to our determination that USCP should
   include them when calculating the current rate.

   [7] Section 1001 of the 2006 Legislative Branch Appropriations Act
   provides that amounts appropriated to USCP for Salaries "may be
   transferred" to the General Expenses appropriation. Pub. L. No. 109-55,
   sect. 1001.

   [8] Cf. OMB Bulletin No. 06-04, Apportionment of the Continuing
   Resolution(s) for Fiscal Year 2007, Attachment (Sep. 29, 2006) (when
   calculating the current rate of an appropriation receiving a transfer,
   agencies include "transfers mandated by law").