TITLE: B-309928, Presidential Signing Statements--Agency Implementation of Ten Provisions of Law, December 20, 2007
BNUMBER: B-309928
DATE: December 20, 2007
************************************************************************************************************
B-309928, Presidential Signing Statements--Agency Implementation of Ten Provisions of Law, December 20, 2007

                                           
                                           

   B-309928

   December 20, 2007

   The Honorable John Conyers, Jr.
   Chairman, Committee on the Judiciary
   United States House of Representatives

   The Honorable Robert C. Byrd
   Chairman, Committee on Appropriations
   United States Senate

   Subject: Presidential Signing Statements--Agency Implementation of Ten
   Provisions of Law

   This letter responds to your request that we examine how agencies have
   executed ten provisions of law to which the President took exception in
   signing statements.[1] We contacted nine agencies responsible for
   implementing the ten provisions to determine how the agencies were
   carrying out the provisions. One of the ten provisions applies to two
   different agencies, and two agencies were responsible for implementing two
   different provisions. Accordingly, we examined agency implementation in
   eleven instances.

   We found that, in six of the eleven instances we examined, the responsible
   agencies--the Department of Defense (DOD), the Office of the Director of
   National Intelligence, the Special Inspector General for Iraq
   Reconstruction, the Institute of Education Sciences, and the Nuclear
   Regulatory Commission (NRC)--reported either that they had taken actions
   to implement the provisions as written or that they had experienced no
   interference in carrying out their responsibilities as required by law. In
   two instances, the provisions--to be implemented by the Department of the
   Interior (Interior) and the Department of Veterans Affairs (VA)--were not
   triggered. In the remaining three instances, we found that the Department
   of Energy (DOE) and the Federal Emergency Management Agency (FEMA) had not
   yet implemented the provisions for which they are responsible, although in
   all three instances each agency indicated that it was planning to
   implement the provision.

   Although we found that three provisions have not yet been implemented, we
   cannot conclude that agency noncompliance was the result of the
   President's signing statements.

   BACKGROUND

   You asked us to examine ten provisions to which the President took
   exception in signing statements. These provisions are listed below,
   arranged by the basis on which the President objected.[2]

   Related to the Fifth Amendment

   The Due Process Clause of the Fifth Amendment prohibits the federal
   government from depriving any person of life, liberty, or property without
   due process of law. [3] In the signing statements, the President stated
   that the executive branch shall construe the provisions in the acts
   relating to race, ethnicity, gender, and state residency "in a manner
   consistent with the requirements of the Due Process Clause of the Fifth
   Amendment."[4] The President objected to the following provisions on this
   basis:

     Section 623 of the Department of Homeland Security Appropriations Act,
     2007, which requires FEMA to create a graduate-level homeland security
     education program and to take steps to ensure diversity in the student
     body. Pub. L. No. 109-295, 120 Stat. 1355, 1418 (Oct. 4, 2006).

     Section 697 of the Department of Homeland Security Appropriations Act,
     2007, which requires FEMA to create a registry of contractors willing to
     perform debris removal, distribution of supplies, reconstruction, and
     other disaster or emergency relief activities. Pub. L. No. 109-295, 120
     Stat. 1355, 1461 (Oct. 4, 2006).

     Section 8048 of the Department of Defense Appropriations Act, 2007,
     which requires DOD contractors in Hawaii and Alaska to hire residents of
     those states. Pub. L. No. 109-289, 120 Stat. 1257, 1284 (Sept. 29,
     2006).

     Section 1011(a) of the Intelligence Reform and Terrorism Prevention Act
     of 2004, which requires the Director of National Intelligence to ensure
     that the personnel of the intelligence community are sufficiently
     diverse for purposes of collection and analysis of intelligence. Pub. L.
     No. 108-458, 118 Stat. 3638, 3644 (Dec. 17, 2004).

   Related to the Theory of the Unitary Executive

   The second basis for the President's objections rests on the theory of the
   unitary executive. Under this theory, the President, as head of the
   executive branch, may control employees and officers of the executive
   branch without outside interference. This theory is rooted in Article II
   of the Constitution, which grants the President the executive power and
   instructs the President to "take Care that the Laws be faithfully
   executed."[5] The theory of the unitary executive holds that these
   responsibilities necessarily vest in the President the power to control
   executive branch employees and officers free of interference from the
   other government branches.[6] The President objected to the following
   provisions on this basis:

     Section 629 of the Energy Policy Act of 2005, which grants additional
     whistleblower protections to DOE and NRC employees and to NRC
     contractors. Pub. L. No. 109-58, 119 Stat. 594, 785 (Aug. 8, 2005).

     Section 186 of the Education Sciences Reform Act of 2002, which created
     the Institute of Education Sciences and provides for the office to carry
     out its mission free of interference from the Secretary of Education or
     any other office of the Department of Education. Pub. L. No. 107-279,
     116 Stat. 1940, 1973 (Nov. 5, 2002).

     Section 108 of the Veterans Benefits Improvement Act of 2004, which
     provides that VA may conduct a 3-year pilot program of training for VA
     employees to become claims adjudicators. Pub. L. No. 108-454, 118 Stat.
     3598, 3604 (Dec. 10, 2004).

   Related to the Commander-in-Chief Power

   The President's third basis of objection asserts congressional
   interference with his power as Commander-in-Chief.[7] The President is the
   head of the Armed Forces, and these objections claim interference with
   this role on the part of Congress. The President objected to the following
   provisions on this basis.[8]

     Section 1205 of the Ronald W. Reagan National Defense Authorization Act
     for Fiscal Year 2005, which requires DOD to issue guidance on how DOD
     shall manage contractor personnel supporting deployed forces, and to
     submit a report to the Armed Services committees regarding the guidance.
     Pub. L. No. 108-375, 118 Stat. 1811, 2083 (Oct. 28, 2004).

     Title III of the Emergency Supplemental Appropriations Act for Defense
     and for the Reconstruction of Iraq and Afghanistan, 2004, which created
     the Special Inspector General for Iraq Reconstruction and provides for
     the office to be free from interference in conducting its investigations
     from officials of the Coalition Provisional Authority, DOD, the
     Department of State or the United States Agency for International
     Development. Pub. L. No. 108-106, 117 Stat. 1209, 1234 (Nov. 6, 2003).

   Related to the Appointments Clause

   Another basis for the President's objections in his signing statements is
   that one provision interferes with his authority under the Constitution's
   Appointments Clause, which requires officers of the United States to be
   appointed by the President, the courts, or executive department heads.[9]
   In his signing statement, the President says that such provisions may not
   disqualify from consideration for appointment individuals best suited to
   fill a particular office, unless the office will perform "functions that
   are advisory only."[10] The President objected to the following provision
   on this basis:

     Section 4 of the Rio Grande Natural Area Act, which creates the Rio
     Grande Natural Area Commission. Pub. L. No. 109-337, 120 Stat. 1777,
     1777-78 (Oct. 12, 2006).

   We inquired as to how the responsible agencies were implementing these
   provisions in light of the President's signing statements.[11] We
   contacted nine agencies: DOD, Interior, VA, DOE, the Office of the
   Director of National Intelligence, NRC, the Special Inspector General for
   Iraq Reconstruction, FEMA, and the Institute of Education Sciences.

   RESULTS

   Two provisions, to which the President objected on Commander-in-Chief and
   unitary executive grounds, respectively, restricted certain types of
   interference with the activities of the two entities: the Special
   Inspector General for Iraq Reconstruction and the Institute of Education
   Sciences. The Office of the Special Inspector General for Iraq
   Reconstruction reported that it has experienced no interference in the
   conduct of its activities from any officers of the Coalition Provisional
   Authority, DOD, the Department of State, or the United States Agency for
   International Development. Similarly, the Director of the Institute of
   Education Sciences stated that no Department of Education officials have
   sought to comment on or disapprove publication of the Institute's
   research.

   In four instances, we found that agencies have taken actions to implement
   the relevant provisions. The President objected to two of these provisions
   on the basis of the Fifth Amendment; to one provision on the basis of the
   Commander-in-Chief power; and the last provision on the basis of the
   theory of the unitary executive. For the two provisions to which the
   President objected on the basis of the Fifth Amendment, we found that the
   Office of the Director of National Intelligence has taken steps to ensure
   that the personnel of the intelligence community are sufficiently diverse
   for purposes of the collection and analysis of intelligence. We also found
   that DOD has issued regulations requiring each contract awarded in Alaska
   and Hawaii to include a provision requiring the contractor to employ
   residents of those states. Regarding the provision to which the President
   objected on Commander-in-Chief grounds, DOD issued guidance on how DOD
   will manage contractor personnel supporting deployed forces. Concerning
   the provision to which the President objected based on the theory of the
   unitary executive, NRC has notified its employees of additional
   whistleblower protections they enjoy and has included a clause in its
   contracts requiring that its contractors notify their employees that the
   employees enjoy the same protections. While NRC has implemented the
   relevant provision, it did so more than 2 years after the provision was
   enacted.

   Two provisions were not triggered. The President objected to these
   provisions on the basis of the Appointments Clause and the theory of the
   unitary executive, respectively. In the first instance, Interior has not
   yet appointed members to a commission, so the provisions regarding the
   qualifications and duties of the commission members have not yet been
   triggered. In the other, VA decided not to develop a pilot program, so the
   portion of the provision governing the reporting on the results of the
   pilot program and making recommendations was not triggered.

   Two agencies have not implemented three provisions we examined. The first
   is DOE. The Energy Policy Act of 2005 extended additional whistleblower
   protections to DOE employees and requires that DOE post information about
   the new protections in DOE facilities. Pub. L. No. 109-58, sect. 629. The
   President objected to this provision under the theory of the unitary
   executive. DOE has not yet posted such information for its employees.
   DOE's Web site and posters in DOE facilities do advise employees of their
   whistleblower rights under the Whistleblower Protection Act of 1989 but do
   not mention the additional protections now afforded DOE employees. DOE
   says that its Web site and posters "should be updated with references to"
   the new whistleblower protection provisions, but did not say when the
   materials would be updated.

   FEMA was responsible for implementing the remaining two provisions, both
   of which the President objected to on Fifth Amendment grounds. One
   provision requires FEMA to create a graduate-level homeland security
   education program and to take reasonable steps to ensure diversity in the
   program's student body. Pub. L. No. 109-295, sect. 623. FEMA created the
   program but has not yet taken measures to ensure diversity within the
   program. Instead, FEMA states that it currently ensures diversity within
   the student body by following existing laws prohibiting discrimination.
   FEMA says that the Department of Homeland Security's Office of the Chief
   Learning Officer and the Training Leaders Council[12] are in the process
   of developing guidelines to support diversity.

   FEMA also was required to create a registry of contractors willing to
   perform debris removal, distribution of supplies, reconstruction, and
   other disaster or emergency relief services. Pub. L. No. 109-295, sect.
   697. The registry must include for each contractor the name, location,
   area served, type of services provided, and bonding level. FEMA has not
   created this registry. FEMA states that an existing government-wide
   registry already contains all of the required information except the areas
   served and the bonding levels of the contractors. FEMA plans to add this
   information to the existing registry in the future.

   In this review, we did not assess the merits of the President's
   objections, nor did we examine the constitutionality of the provisions to
   which the President objected. A complete summary of our findings with
   regard to each of the ten provisions appears as an enclosure to this
   letter. We hope you find this information useful. Should you have any
   questions, please contact Susan A. Poling, Managing Associate General
   Counsel, at 202-512-2667.

   Sincerely yours,

   Gary L. Kepplinger

   Gary Kepplinger's signature

   General Counsel

   Enclosure

                                 AGENCY ACTIONS

   The following summary of agency action regarding the ten provisions we
   examined is arranged by category of the President's objection. Although we
   found that two agencies have not yet implemented provisions, we cannot
   conclude that agency noncompliance was the result of the President's
   signing statements. In this review, we did not assess the merits of the
   President's objections, nor did we examine the constitutionality of the
   provisions to which the President objected. We also have not evaluated the
   effectiveness of the agency actions and programs described in this
   summary.

   PROVISIONS RELATED TO THE FIFTH AMENDMENT

   Section 623 of the Department of Homeland Security Appropriations Act,
   2007--Federal Emergency Management Agency

   This provision instructed the Federal Emergency Management Agency (FEMA)
   to create a graduate-level homeland security education program. Pub. L.
   No. 109-295, sect. 623, 120 Stat. 1355, 1418 (Oct. 4, 2006). In relevant
   part, the provision directed the Administrator to take "reasonable steps
   to ensure that the student body represents racial, gender, and ethnic
   diversity." Id.

   Upon signing the act, the President stated, "The executive branch shall
   construe provisions of the Act relating to race, ethnicity, and gender,
   such as section[] 623 . . . of the Act, in a manner consistent with the
   requirements of the Due Process Clause of the Fifth Amendment." Statement
   on Signing the Department of Homeland Security Appropriations Act, 2007,
   42 Weekly Comp. Pres. Doc. 1742 (Oct. 9, 2006).

   According to FEMA, the Homeland Security Academy, managed by the
   Department of Homeland Security (DHS) Chief Learning Officer, was
   established in response to section 623. According to FEMA, students for
   the program are currently chosen on the basis of five weighted criteria:
   academic credentials, a self-assessment essay, experience narratives,
   communication skills, and letters of recommendation. FEMA has not
   developed mechanisms designed to ensure diversity in the student body.

   Instead, FEMA says that diversity is ensured in this program by adhering
   to existing prohibitions of discrimination by the federal government. As
   cited by FEMA, these instruct agencies to provide training without regard
   to race, creed, color, national origin, sex, or other factors unrelated to
   the need for training.[13] FEMA states that these existing prohibitions of
   government discrimination ensure the diversity called for by section 623.
   FEMA says it does not have information about the current racial, gender,
   or ethnic makeup of the student body.

   FEMA states that the DHS Training Leaders Council and the Office of the
   Chief Learning Officer are developing guidelines that will support racial,
   gender, and ethnic diversity of the student body and of the candidate
   selection panels. However, FEMA has not provided us with these guidelines
   and has not provided a date when they may become effective. Based on the
   foregoing, we conclude that FEMA has not yet taken "reasonable steps" to
   ensure diversity as required by this provision.

   Section 697 of the Department of Homeland Security Appropriations Act,
   2007--FEMA

   Section 697 requires FEMA to create a registry of contractors willing to
   perform debris removal, distribution of supplies, reconstruction, and
   other disaster or emergency relief activities. Pub. L. No. 109-295,
   sect. 697(b)(1), 120 Stat. 1355, 1461 (Oct. 4, 2006). The provision
   requires that the registry include for each contractor the name, location,
   area served, type of good or service provided, and bonding level. Id.
   sect. 697(b)(2)(A)-(E). The registry is also to include whether the
   contractor is a small business concern, a small business concern owned and
   controlled by socially or economically disadvantaged individuals, a small
   business concern owned and controlled by women, or a small business
   concerned owned and controlled by service-disabled veterans. Id. sect.
   697(b)(F).

   Upon signing the act, the President stated, "The executive branch shall
   construe provisions of the Act relating to race, ethnicity, and gender,
   such as section[] 697 . . . of the Act, in a manner consistent with the
   requirement of the Due Process Clause of the Fifth Amendment to the
   Constitution." Statement on Signing the Department of Homeland Security
   Appropriations Act, 2007, 42 Weekly Comp. Pres. Doc. 1742 (Oct. 9, 2006).

   FEMA does not yet have a registry as required by this statute. FEMA states
   that it intends to fulfill the requirements of this provision by working
   with the DHS Office of the Chief Procurement Officer and the Office of
   Federal Procurement Policy to modify the Central Contracting Registry
   (CCR), which already exists. The CCR already contains information about
   whether the contractors are small business concerns and whether they are
   owned and controlled by socially or economically disadvantaged
   individuals, by women, or by service-disabled veterans. According to FEMA,
   the CCR will satisfy the requirements of section 697 once information
   regarding the areas served by and bonding levels of contractors are added.
   FEMA says it is "working to modify" the CCR, but gave no date as to when
   this modification would be complete. Thus, FEMA has not yet implemented
   this provision.

   Section 8048 of the Department of Defense Appropriations Act,
   2007--Department of Defense

   Section 8048 provides that each contract the Department of Defense (DOD)
   awards for construction or services performed "in a State . . . which is
   not contiguous with another State and has an unemployment rate in excess
   of the national average rate" shall include a provision requiring the
   contractor to employ, for the purpose of performing that portion of the
   contract in the particular state, individuals who are residents of those
   states. Pub. L. No. 109-289, sect. 8048, 120 Stat. 1257, 1284 (Sept. 29,
   2006). The Secretary of Defense may waive this requirement on a
   case-by-case basis in the interest of national security. Id.

   The President said in his signing statement that the "executive branch
   shall construe provisions of the Act relating to race, ethnicity, gender,
   and State residency, such as [section 8048], in a manner consistent with
   the requirement to afford equal protection of the laws under the Due
   Process Clause of the Constitution's Fifth Amendment." Statement on
   Signing the Department of Defense Appropriations Act, 42 Weekly Comp.
   Pres. Doc. 1703 (Oct. 9, 2006) (emphasis added).

   This is a recurring provision in the DOD authorization acts. It is
   implemented in the Defense Acquisition Regulations System (DFARS) at
   section 252.222-7000, which requires that each contract DOD awards in a
   state contemplated by section 8048 contain a clause providing that the
   contractor will employ individuals who are residents of the state as
   called for by section 8048. The regulation has been in effect since August
   2000.

   DOD states that the number of contracts covered by section 8048 and its
   predecessors likely exceeds 100,000. DOD says it has no means available to
   electronically search the contracts to determine whether each contains the
   clause called for by section 8048. DOD says a manual search of such a
   large volume of contracts would be impractical. DOD states that it has
   been unable to identify any waivers by the Secretary of Defense of the
   requirement of section 8048. Based on the foregoing, we conclude that DOD
   has implemented section 8048.

   Section 1011(a) of the Intelligence Reform and Terrorism Prevention Act of
   2004--Office of the Director of National Intelligence

   Section 1011(a) amended the National Security Act of 1947 by striking
   sections  102-104 of that Act and adding numerous new provisions,
   including section 102A(f)(3)(A)(iv). Intelligence Reform and Terrorism
   Prevention Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638 (Dec. 17,
   2004). Section 102A(f)(3)(A)(iv) provides that the Director of National
   Intelligence shall "ensure that the personnel of the intelligence
   community are sufficiently diverse for purposes of the collection and
   analysis of intelligence through the recruitment and training of women,
   minorities, and individuals with diverse ethnic, cultural, and linguistic
   backgrounds."

   In his signing statement for the Act, the President stated that the
   executive branch would "construe provisions of the Act that relate to
   race, ethnicity, or gender in a manner consistent with the requirement
   that the Federal Government afford equal protection of the laws under the
   Due Process Clause of the Fifth Amendment to the Constitution." Statement
   on Signing the Intelligence Reform and Terrorism Prevention Act of 2004,
   40 Weekly Comp. Pres. Doc. 2993 (Dec. 27, 2004).

   According to the Office of the Director of National Intelligence, it has
   several initiatives in place meant to ensure a sufficiently diverse
   workforce within the intelligence community for the purposes of collection
   and analysis of information. These efforts have included the "Treat
   Diversity as a Strategic Mission Imperative" initiative focusing on the
   recruitment, employment, and retention of women, minorities, and heritage
   community members. Part of the Director's Heritage Recruitment and
   Retention Strategy is a requirements-driven approach to recruiting
   individuals with heritage community languages or cultural, regional, or
   ethnic knowledge. The Office of the Director of National Intelligence also
   administers a scholarship program with emphasis on students from diverse
   backgrounds, with awardees receiving a full-time position in the
   intelligence community upon graduation from college. Based on the
   foregoing we conclude that the Office of the Director of National
   Intelligence has taken actions to implement this provision.

   PROVISIONS RELATED TO THE THEORY OF THE UNITARY EXECUTIVE

   Section 629 of the Energy Policy Act of 2005--Department of Energy and
   Nuclear Regulatory Commission

   This provision amended section 5851 of title 42 of the United States Code
   to extend certain whistleblower protections to employees of the Department
   of Energy (DOE) and the Nuclear Regulatory Commission (NRC), as well as
   employees of NRC contractors and subcontractors.[14] Pub. L. No. 109-58,
   sect. 629, 119 Stat. 594, 785 (Aug. 8, 2005). Section 5851 provides that
   no employer covered by the statute may discharge or otherwise discriminate
   against an employee who notifies an employer of an alleged violation of
   the Atomic Energy Act of 1954 or the Energy Reorganization Act of 1974,
   refuses to engage in a practice made illegal by either of those acts,
   testifies before a federal or state proceeding regarding any provision of
   those acts, commences or causes to commence a proceeding for the
   administration of enforcement of any requirement imposed under those acts,
   or participates in such a proceeding. 42 U.S.C. sect. 5851(a)(1). Section
   5851 also requires that all employers covered by the statute prominently
   post information about the statute in their facilities. 42 U.S.C.
   sect. 5851(i). Any employee who believes that he or she has been
   discriminated against in violation of the statute may file a complaint
   with the Department of Labor (DOL). 42 U.S.C. sect. 5851(b)(1). After DOL
   receives such a complaint, it notifies the agencies. Id.

   In his signing statement the President said that the "executive branch
   shall construe [section 629], as [it] relate[s] to dissemination of
   official information by employees of the Department of Energy and the
   Nuclear Regulatory Commission, in a manner consistent with the President's
   constitutional authority to supervise the unitary executive branch."
   Statement on Signing the Energy Policy Act of 2005, 41 Weekly Comp. Pres.
   Doc. 1267 (Aug. 15, 2005).

   Although the law was enacted in August 2005, DOE says that is has not yet
   notified its employees that they are covered by the whistleblower
   protections of section 5851. DOE's Web site and posters in DOE facilities
   advise employees of their whistleblower rights under the Whistleblower
   Protection Act of 1989 but do not mention the additional protections
   afforded by section 5851.[15] DOE acknowledges that its Web site and
   posters "should be updated with references to the provisions of section
   [5851]," but did not state when it plans to effect such an update.

   NRC told us it has notified its employees that they are covered by section
   5851. However, NRC says that it did not provide its employees with this
   information until September 2007, more than 2 years after passage of
   section 629. NRC says it posted information in its facilities in January
   and February 2007 regarding some of the whistleblower protections enjoyed
   by NRC employees. According to NRC, staff responsible for these postings
   believed the postings informed NRC employees of their new rights under
   section 5851. On August 10, 2007, DOL promulgated regulations that
   included an example of a posting which would satisfy the statutory
   requirement.[16] NRC says its legal staff examined its postings in
   September 2007 after receiving our inquiry regarding NRC's implementation
   of section 629. The legal staff determined that its postings did not, in
   fact, inform NRC employees of their new rights under section 5851.
   According to NRC, it promptly revised the postings to conform to the
   example in DOL's regulations.

   NRC also issued an internal memorandum on July 13, 2006 stating that all
   contracts executed by NRC must include a clause informing contractors that
   they are covered by section 5851, and instructing contractors to inform
   their employees of the protections of section 5851. This memorandum also
   provides for modification of existing contracts to include this clause.

   According to NRC, it has not received any whistleblower complaints from
   DOL since passage of the Energy Policy Act. DOE reports that DOL has
   notified DOE of six complaints since passage of the Energy Policy Act.
   None of the six complaints have resulted in a finding of discrimination by
   DOE but DOE settled one case and two are still being appealed.

   We conclude that NRC has implemented section 629, albeit in an untimely
   fashion, and DOE has not implemented section 629.

   Section 186 of the Education Sciences Reform Act of 2002--Institute of
   Education Sciences

   The Education Sciences Reform Act of 2002 established the Institute of
   Education Sciences. Pub. L. No. 107-279, sect. 111, 116 Stat. 1940, 1944
   (Nov. 5, 2002). The Institute's mission "is to provide national leadership
   in expanding fundamental knowledge and understanding of education from
   early childhood through post-secondary study." Id. To carry out this
   mission, the Institute compiles statistics, develops products, and
   conducts research and evaluation in the educational arena. Id.

   Section 186(a) of the Education Sciences Reform Act provides the Director
   of the Institute the power to conduct and publish research "as needed to
   carry out the priorities of the Institute without the approval of the
   Secretary [of Education] or any other office of the Department [of
   Education]." Section 186(b) also requires the Institute to provide its
   publications in advance to the Department of Education and submit the
   publications to rigorous peer review.

   In his signing statement, the President said:

     "The executive branch shall construe [section 186] in a manner
     consistent with the President's constitutional authority to supervise
     the unitary executive branch . . . . In addition, the Director of the
     Institute of Education Sciences shall implement section 186(a) of the
     Act subject to the supervision and direction of the Secretary of
     Education."

   Statement on Signing Legislation to Provide for Improvement of Federal
   Education Research, Statistics, Evaluation, Information, and
   Dissemination, and for Other Purposes, 38 Weekly Comp. Pres. Doc. 1995
   (Nov. 11, 2002).

   According to the Director, he "has not sought the approval of the
   Secretary [of Education] or other officials with respect to conducting
   particular research projects or with respect to publishing any item." The
   Director has sought the Secretary of Education's approval of broad
   programs through the annual budget process. Nevertheless, neither the
   Secretary nor any other Department of Education official has sought to
   approve or disapprove an Institute item prior to publication, according to
   the Director. Nor has the Secretary or any other Department official
   sought to edit or change an item prior to its publication. Consistent with
   section 186(b), the Institute provides its publications in advance to the
   Department, but advance copies "are in final form and not subject to
   editing or revisions as a result of comments by the Secretary or other
   officials in the Department." Based on the foregoing, we conclude that no
   interference prohibited by this provision has occurred.

   Section 108 of the Veterans Benefits Improvement Act of 2004--Department
   of Veterans Affairs

   Section 108 provides that the Secretary of Veterans Affairs (VA) "may
   conduct" a 3-year pilot program of on-the-job training for VA employees to
   become qualified claims adjudicators for compensation, dependency and
   indemnity compensation, and pension. Pub. L. No. 108-454, sect. 108, 118
   Stat. 3598, 3604 (Dec. 10, 2004) (emphasis added). Section 108 also
   required the Secretary, within 3 years of the program's establishment, to
   submit an initial report to Congress assessing the program's usefulness in
   recruiting and retaining VA personnel and the program's value as a
   training program. Within 18 months of submitting the initial report, the
   Secretary was to submit a final report to Congress, including
   recommendations with respect to continuation of the pilot program and
   expansion of the types of claims VA employees should be trained to
   adjudicate.

   The President said in his signing statement that section 108--

     "purports to require the Secretary of Veterans Affairs to make a
     recommendation to the Congress on whether to continue a specified pilot
     project beyond its statutory expiration date, which would require
     enactment of legislation. . . . The executive branch shall implement
     [section 108] in a manner consistent with the President's constitutional
     authority to supervise the unitary executive branch and to recommend for
     the consideration of the Congress such measures as the President judges
     necessary and expedient."

   Statement on Singing the Veterans Benefits Improvement Act of 2004, 40
   Weekly Comp. Pres. Doc. 2933  (Dec. 13, 2004).

   Section 108 provides the Secretary of VA with discretion to conduct the
   pilot program; it does not mandate the program. VA states that it has no
   plans to conduct the pilot program. Therefore, the provisions of this Act
   addressed in the accompanying signing statement were not triggered.

   PROVISIONS RELATED TO THE COMMANDER-IN-CHIEF POWER

   Section 1205 of the Ronald W. Reagan National Defense Authorization Act
   for Fiscal Year 2005--DOD

   Section 1205 requires the Secretary of Defense to issue guidance on how
   DOD shall manage contractor personnel who support deployed forces. Pub. L.
   No. 108-375, sect. 1205, 118 Stat. 1811, 2083 (Oct. 28, 2004). The
   guidance was to address 10 specific issues, as identified in section
   1205(b). The Secretary of Defense also was to submit a report on the
   guidance to the congressional Armed Services committees.

   The President noted in his signing statement that the "executive branch
   shall construe . . . [section 1205] . . . in a manner consistent with the
   President's constitutional authority as Commander in Chief and to
   supervise the unitary executive branch." Statement on Signing the Ronald
   W. Reagan National Defense Authorization Act for Fiscal Year 2005, 40
   Weekly Comp. Pres. Doc. 2673-74 (Nov. 1, 2004).

   DOD issued Instruction 3020.41 on October 3, 2005, almost a year after the
   in response to section 1205. Instruction 3020.41 addresses 9 of the 10
   specific issues listed in section 1205(b). DOD addressed the tenth issue
   in Table E4.T1 of DOD Instruction 7730.64, issued on December 11, 2004. On
   January 23, 2006, DOD submitted a report to the congressional Armed
   Services committees regarding this guidance, as directed by section 1205.
   We conclude that DOD has implemented this provision.

   Title III of the Emergency Supplemental Appropriations Act for Defense and
   for the Reconstruction of Iraq and Afghanistan, 2004--Special Inspector
   General for Iraq Reconstruction

   Title III of the Emergency Supplemental Appropriations Act for Defense and
   for the Reconstruction of Iraq and Afghanistan, 2004, created an Inspector
   General of the Coalition Provisional Authority. Pub. L. No. 108-106, title
   III, 117 Stat. 1209, 1234 (Nov. 6, 2003). Section 3001(e)(2) of the Act
   states, "Neither the head of the Coalition Provisional Authority, any
   other officer of the Coalition Provisional Authority, nor any other
   officer of the Department of Defense, the Department of State, or the
   United States Agency for International Development shall prevent or
   prohibit the Inspector General from initiating, carrying out, or
   completing any audit or investigation, or from issuing any subpoena during
   the course of any audit or investigation."

   The Presidential signing statement addressing the Act states that title
   III of the Act will be construed in "a manner consistent with the
   President's constitutional authorities to conduct the Nation's foreign
   affairs, to supervise the unitary executive branch, and as Commander in
   Chief of the Armed Forces." Statement on Signing the Emergency
   Supplemental Appropriations Act for Defense and for the Reconstruction of
   Iraq and Afghanistan, 2004, 39 Weekly Comp. Pres. Doc. 1549 (Nov. 10,
   2003). Specifically, the signing statement directs the Inspector General
   to refrain from "initiating, carrying out, or completing an audit or
   investigation, or from issuing a subpoena, which requires access to
   sensitive operation plans, intelligence matters, counterintelligence
   matters, ongoing criminal investigations, by other administrative units of
   the Department of Defense related to national security, or other matters
   the disclosure of which would constitute a serious threat to national
   security. The Secretary of Defense may make exceptions to the foregoing
   direction in the public interest." Id.

   According to the Office of the Special Inspector General for Iraq
   Reconstruction, which is the successor to the Inspector General of the
   Coalition Provisional Authority, no party within the federal government
   has prevented or attempted to prevent the Special Inspector General from
   initiating, carrying out, or completing an audit or investigation or from
   issuing a subpoena. The Office stated that it has not been denied access
   to any information on the basis that it related to "sensitive operation
   plans, intelligence matters, counterintelligence matters, ongoing criminal
   investigations by other DOD administrative units related to national
   security, or other matters the disclosure of which would constitute a
   serious threat to national security." Nor has it refrained from any
   investigation on the basis of the signing statement or the grounds cited
   therein. The Office advised us that, as an investigative agency, it has
   withheld actions on the request of other law enforcement agencies to avoid
   interference in other law enforcement agencies' investigations. Based on
   the foregoing, we conclude that no interference prohibited by this
   provision has occurred.

   PROVISION RELATED TO THE APPOINTMENTS CLAUSE

   Section 4 of the Rio Grande Natural Area Act--Department of the Interior

   The Rio Grande Natural Area Act established the Rio Grande Natural Area
   (Natural Area) and the Rio Grande Natural Area Commission (Commission).
   Pub. L. No. 109-337, sections 3-4, 120 Stat. 1777, 1777-78 (Oct. 12,
   2006). The Commission is to advise the Secretary of the Interior
   (Secretary) with respect to the Natural Area and to prepare a management
   plan relating to nonfederal land in the Natural Area. Id. sections
   3(b)(2), 6(b)(2)(A). This management plan is to be submitted to the
   Secretary, who then may approve or disapprove of the plan. Id. sect.
   6(b)(2)(B)(i). If the Secretary disapproves it, he is to notify the
   Commission of the reasons for disapproval and allow the Commission an
   opportunity to make revisions. Id. sect. 6(b)(2)(B)(ii). The Commission
   also has the power to call hearings, enter into cooperative agreements,
   and assist the Secretary in implementing the management plan. Id. sect. 5.
   Commission meetings are to be held quarterly, to be open to the public,
   and are to be announced by published notice in advance. Id. sect. 4(g).
   The Commission is to prepare its management plan for nonfederal lands by
   October 12, 2010. Id. sect. 6(a).

   The Act directed the Secretary to appoint the nine Commission members,
   each of whom is to have certain qualifications. Id. sect. 4(c). One member
   is to represent the Colorado State Director of the Bureau of Land
   Management. Id. sect. 4(c)(1). One member is to be the manager of the
   Alamosa National Wildlife Refuge, ex officio.[17] Id. sect. 4(c)(2). Three
   members are to be appointed based on the recommendation of the Governor of
   Colorado, of whom one member would represent each of the following: the
   Colorado Division of Wildlife, the Colorado Division of Water Resources,
   and the Rio Grande Water Conservation District.[18] Id. sect. 4(c)(3). The
   remaining four members are to represent the general public, be citizens of
   the local region of the Natural Area, and to "have knowledge and
   experience in the fields of interest relating to the preservation,
   restoration, and use of the Natural Area." Id. sect. 4(c)(4).

   Upon signing this act, the President noted in his signing statement that
   the--

     "Act limits the qualifications of the pool of persons from whom the
     Secretary may select appointees to the Commission in a manner that rules
     out a large portion of those persons best qualified by experience and
     knowledge to fill the positions, which the Appointments Clause of the
     Constitution does not permit if the appointees exercise significant
     governmental authority. To faithfully execute the Act to the maximum
     extent consistent with the Appointments Clause, the executive branch
     shall construe the provisions of the Act specifying functions for the
     Commission as specifying functions that are advisory only."

   Statement on Signing the Rio Grande Natural Area Act, 42 Weekly Comp.
   Pres. Doc. 1815 (Oct. 16, 2006).

   According to the Department of the Interior (Interior), the Secretary has
   not yet appointed any of the nine members of the Commission. On September
   20, 2007, the Rio Grande Water Conservation District forwarded to the
   Secretary the names and qualifications of six individuals for the four
   positions on the Commission representing the general public. The Governor
   of Colorado has not yet submitted any recommendations for the State of
   Colorado's three appointments to the Commission. Interior states that one
   position will be filled by an employee of the Colorado Office of the
   Bureau of Land Management and one position will be filled by the manager
   of the Alamosa National Wildlife Refuge, ex officio. Interior notes that
   the Rio Grande Water Conservation District has advised Interior that it
   has had difficulty finding volunteers to serve as unpaid members of the
   Commission. Since the Commission, as yet unformed, has had no meetings and
   has taken no actions, it is premature to determine whether the Commission
   will take on functions that are advisory only. Therefore, the provisions
   of this Act addressed in the accompanying signing statement have not yet
   been triggered.

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

   [1] For information on presidential signing statements generally and those
   accompanying the fiscal year 2006 appropriations acts and how the federal
   courts have treated signing statements in their published opinions, see
   B-308603, June 18, 2007.

   [2] Our June 18, 2007 opinion, B-308603, discussed in detail most of these
   bases of presidential objection or concern found in the signing statements
   at issue here.

   [3] U.S. Const. amend. V.

   [4] See, e.g., Statement on Signing the Department of Homeland Security
   Appropriations Act, 2007, 42 Weekly Comp. Pres. Doc. 1742 (Oct. 9, 2006).

   [5] U.S. Const. art. II, sect. 3.

   [6] Letter Opinion for the General Counsel, Department of Health and Human
   Services, Authority of Agency Officials to Prohibit Employees from
   Providing Information to Congress, OLC Opinion, May 21, 2004, available at
   www.usdoj.gov/olc/crsmemoresponsese.htm (last visited December 12, 2007).

   [7] U.S. Const. art. II, sect. 2, cl. 1.

   [8] The President also objected to these provisions under the theory of
   the unitary executive.

   [9] U.S. Const. art II, sect. 2, cl. 2.

   [10] Statement on Signing the Rio Grande Natural Area Act, 42 Weekly Comp.
   Pres. Doc. 1815 (Oct. 16, 2006).

   [11] For a complete description of the scope and methodology used for this
   opinion, see the scope and methodology of our first opinion on
   presidential signing statements, B-308603, June 18, 2007.

   [12] The Training Leaders Council consists of senior training leaders from
   each of the Department of Homeland Security's components as well as
   representatives from several department-level headquarters staff and
   support organizations. GAO, Department of Homeland Security, Strategic
   Management of Training Important for Successful Transformation, GAO-05-888
   (Washington, D.C.: Sept. 2005), at 15-16.

   [13] 5 U.S.C. sect. 2301(b); 5 C.F.R. sect. 410.302(a)(1); Exec. Order No.
   11,348, Providing for the Further Training of Government Employees, 32
   Fed. Reg. 6335 (Apr. 20, 1967).

   [14] Employees of DOE contractors were already covered by section 5851.

   [15] The Whistleblower Protection Act forbids retaliation by an agency
   against an employee who discloses information that the employee believes
   shows a violation of any law, rule or regulation or shows gross
   mismanagement, fraud, waste, or abuse. 5 U.S.C. sect. 2302. Individuals
   may file complaints under the act with the Merit Systems Protection Board
   or the Office of Special Counsel. 5 U.S.C. sect. 7701; 5 U.S.C. sections
   1211-1215. Section 5851, as discussed above, protects employees with
   regard to the Atomic Energy Act and Energy Reorganization Act and covers
   actions outside the scope of the Whistleblower Protection Act.

   [16] 29 C.F.R. pt. 24, app. A; 72 Fed. Reg. 44,963 (Aug. 10, 2007).

   [17] This term means "by virtue or because of an office." Black's Law
   Dictionary 616 (8^th ed. 2004). Whichever individual filling the post of
   manager of the Alamosa Wildlife Refuge is thus automatically a member of
   the commission.

   [18] The Rio Grande Water Conservation District is a governmental entity
   created by the Colorado General Assembly to manage water resources in
   Colorado's San Luis Valley Rio Grande Water Conservation District,
   History, available at www.rgwcd.org/Pages/History.htm (last visited Dec.
   12, 2007).