TITLE: B-316533, Department of Homeland Security--Transfer of Support Function for Principal Federal Officials, July 31, 2008
BNUMBER: B-316533
DATE: July 31, 2008
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B-316533, Department of Homeland Security--Transfer of Support Function for Principal Federal Officials, July 31, 2008

   B-316533

   July 31, 2008

   The Honorable Robert C. Byrd

   United States Senate

   The Honorable Thad Cochran

   United States Senate

   Subject: Department of Homeland Security--Transfer of Support Function for
   Principal Federal Officials

   In a letter dated May 22, 2008, you requested our opinion on whether a
   provision contained in the 2007 supplemental appropriations act
   prohibiting the Department of Homeland Security (DHS) from using
   appropriated funds for reorganizing the department was in effect and
   applicable to actions taken by DHS at the beginning of fiscal year 2008.
   Additionally, you asked whether, if the prohibition was in effect, DHS
   improperly used appropriated funds to carry out a transfer of the
   Principal Federal Officials (PFO) Support Program from the National
   Protection and Programs Directorate (NPPD) to the Office of Operations
   Coordination's (OPS) Management and Administration Program.

   After analyzing the applicable statutes and considering DHS's views, we
   conclude that the prohibition was indeed in effect on October 1, 2007, the
   date of the transfer. We also conclude that the transfer of the program
   support function constituted a transfer covered by the prohibition. The
   support function was previously performed by NPPD. Effective October 1,
   2007, the Director of Operations Coordination was tasked with providing
   staff support to the PFOs, and NPPD then ceased to have a staff support
   role regarding PFOs.

   Our practice when issuing opinions is to obtain the views of the relevant
   agency to establish a factual record and to establish the agency's legal
   position on the subject matter of the request. GAO, Procedures and
   Practices for Legal Decisions and Opinions, GAO-06-1064SP (Washington,
   D.C.: Sept. 2006), available at www.gao.gov/legal/resources.html. In this
   regard, the department provided its legal views and relevant factual
   material. Letter from Michael D. Russell, Acting Associate General
   Counsel, DHS, to Susan A. Poling, Managing Associate General Counsel, GAO,
   July 17, 2008 (Russell Letter). DHS provided 16 attachments to its letter,
   including copies of letters previously sent to congressional committees
   under section 872 notifying them of reorganizations or transfers. Russell
   Letter, at Tabs 6-16.

   BACKGROUND

   DHS was established by the Homeland Security Act of 2002. Pub. L.
   No. 107-296, 116 Stat. 2135 (Nov. 25, 2002). The Homeland Security Act
   defined the department's missions to include preventing terrorist attacks
   within the United States, reducing the vulnerability of the United States
   to terrorism, and minimizing the damage and assisting in the recovery from
   attacks that occur within the United States. Id. at sect. 101(b). DHS
   began operations in March 2003. See GAO, Department of Homeland Security:
   Progress Made in Implementation of Management Functions, but More Work
   Remains, GAO-08-646T (Washington, D.C.: Apr. 9, 2008). Its establishment
   represented a fusion of 22 federal agencies to coordinate and centralize
   the leadership of many homeland security activities under a single
   department. Id.

   The Robert T. Stafford Disaster Relief and Emergency Assistance Act (the
   Stafford Act) primarily establishes the programs and processes for the
   federal government to provide major disaster and emergency assistance to
   state, local, and tribal governments, individuals, and qualified private
   nonprofit organizations. 42 U.S.C. sections 5121-5206. The President has
   assigned to the Secretary of DHS principal responsibility to coordinate
   management of the federal response to major incidents. Letter from Michael
   Chertoff, Secretary of DHS, to David Price, Chairman, Subcommittee on
   Homeland Security, House Committee on Appropriations, July 27, 2007
   (Chertoff Letter), contained in Russell Letter, at Tab 3. The Federal
   Emergency Management Agency (FEMA), within DHS, has responsibility for
   administering the Stafford Act, and under the act, a federal coordinating
   officer (FCO) is appointed to lead the federal response to a national
   emergency. DHS states that while major incidents may involve the Stafford
   Act and be centered on emergency management, others may not involve the
   Stafford Act and may involve largely law enforcement responses with little
   role for FEMA. Id. For such non-Stafford Act incidents, a PFO is deployed
   to lead the array of federal personnel. Id.

   There are currently approximately 75 pre-appointed PFOs. DHS, Responses to
   Questions for the Record, Hearing before the Subcommittee on Homeland
   Security, Senate Appropriations Committee, 18-19 (Mar. 4, 2008). The PFO
   is a collateral duty position, and all PFOs have other full-time
   responsibilities with their agencies. Id., at 19. Some PFOs are designated
   for certain events, while approximately 38 nondesignated PFOs must be
   trained to step into the role of any of the PFOs if their normal
   responsibilities preclude them from carrying out their duties as a PFO.
   Id. The PFO support function or program management responsibilities
   consist primarily of training the PFOs, but also include coordinating PFO
   assignments with each PFO's parent agency. Id. It is the transfer of the
   PFO support function that is at issue here.

   In his letter to the Chairman of the Appropriations Subcommittee on
   Homeland Security, House of Representatives, the Secretary described the
   transfer as follows:

     "I am pleased to report that, effective Fiscal Year 2008, the DHS
     Director of Operations Coordination will provide staff support to the
     PFOs. NPPD will then cease to have a staff support role regarding PFOs.
     This organizational transition will complete the alignment of
     pre-incident PFO and FCO support functions with other pre-incident
     strategic management planning and coordination within the Department."

   Chertoff Letter, at 2.

   When it was enacted in 2002, section 872 of the Homeland Security Act
   provided the Secretary with authority to reorganize the department, but
   required that the Secretary provide notice to Congress prior to any
   reorganization. Specifically, section 872 of the Homeland Security Act
   states that "[t]he Secretary may allocate or reallocate functions among
   the officers of the Department, and may establish, consolidate, alter, or
   discontinue organizational units within the Department . . ." Pub. L. No.
   107-296, sect. 872. The Secretary must provide notice 60 days in advance
   of taking any such action, and the notice is required to include the
   rationale for the action.[1] Id.

   In 2007, however, Congress prohibited the Secretary from using
   appropriated funds to carry out section 872. In May 2007, after receiving
   its annual appropriation for fiscal year 2007,[2] DHS received a
   supplemental appropriation. U.S. Troop Readiness, Veterans' Care, Katrina
   Recovery, and Iraq Accountability Appropriations Act, 2007, Pub. L. No.
   110-28, 121 Stat. 112 (May 25, 2007) (Supplemental Appropriation). Section
   3501 of the Supplemental Appropriation provides that "[n]one of the funds
   provided in this Act, or [the DHS Appropriations Act], shall be available
   to carry out section 872 of Public Law 107-296 [the Homeland Security Act
   of 2002]." Pub. L. No. 110-28, sect. 3501.

   For the beginning of fiscal year 2008, Congress enacted a continuing
   resolution to fund DHS. See Joint Resolution, Pub. L. No. 110-92, 121
   Stat. 989 (Sept. 29, 2007) (Continuing Resolution). The Continuing
   Resolution appropriated for fiscal year 2008:

     "Such amounts as may be necessary, at a rate for operations as provided
     in the applicable appropriations Acts for fiscal year 2007 and under the
     authority and conditions provided in such Acts for continuing projects
     or activities . . . for which appropriations, funds, or other authority
     were made available in [listed appropriations acts] . . ."

   Pub. L. No. 110-92, sect. 101. The listed appropriations acts included the
   2007 DHS Appropriations Act.

   Section 104 of the Continuing Resolution provided that no funds provided
   under the Continuing Resolution "shall be used to initiate or resume any
   project or activity for which appropriations, funds, or other authority
   were not available during fiscal year 2007." Id. sect. 104.

   You state in your letter to us that you believe the prohibition against
   transfers under section 872 of Public Law 107-296 was "in effect during
   the pendency of the [fiscal year] 2008 continuing resolutions" which began
   on October 1, 2007. In addition to asking for our view on this question,
   you ask whether the transfer of the PFO support function would be subject
   to the prohibition.

   ANALYSIS

   The question of whether the prohibition contained in section 3501 of the
   Supplemental Appropriation was in effect on October 1, 2007, can be
   resolved by looking to the terms of the various statutes involved. As
   stated above, the prohibition at issue first appeared in the Supplemental
   Appropriation enacted in May 2007. By its terms, this provision prohibited
   any funds provided in that Act as well as any funds provided by the 2007
   DHS Appropriations Act from being used to carry out transfers under
   section 872 of Public Law 107-296. Pub. L. No. 110-28, sect. 3501. Thus,
   the prohibition against such transfers became a condition on the use of
   funds provided by the 2007 DHS Appropriations Act.

   In the Continuing Resolution, Congress specifically identifies the 2007
   DHS Appropriations Act as the reference bill for determining the rate for
   operations during fiscal year 2008 and states that the funds are provided
   under the "authority and conditions" provided in the fiscal year 2007 DHS
   Appropriations Act. Pub. L. No. 110-92. Moreover, section 104 of the
   Continuing Resolution prohibited funds from being used for any project or
   activity for which funds were not available in 2007. Because the section
   3501 prohibition is a condition imposed on the department's fiscal year
   2007 appropriation and a reorganization under section 872 could not have
   been made in 2007, we conclude that the prohibition was in effect during
   the pendency of the Continuing Resolution, including on October 1, 2007,
   the date of the transfer.

   The next question, then, is whether the transfer of the PFO support
   function was a transfer covered by the prohibition. As stated, section
   3501 prohibited the Department from using appropriated funds to "carry out
   section 872."

   Section 872 addresses the authority of the Secretary to "allocate or
   reallocate functions" among the officers of the department or "to
   establish, consolidate, alter, or discontinue organizational units." The
   Homeland Security Act defines the term "functions" as including
   "authorities, powers, rights, privileges, immunities, programs, projects,
   activities, duties, and responsibilities." Pub. L. No. 107-96, sect. 2(8).
   In interpreting statutes, the federal courts have developed a number of
   well-recognized conventions or canons of statutory construction. The most
   important canon is the "plain meaning rule." The Supreme Court described
   this rule as follows: "Our first step in interpreting a statute is to
   determine whether the language at issue has a plain and unambiguous
   meaning with regard to the particular dispute . . . Our inquiry must cease
   if the statutory language is unambiguous and the statutory scheme is
   coherent and consistent." Robinson v. Shell Oil Co., 519 U.S. 337, 340
   (1997). In other words, when the language of a law is clear and
   unambiguous on its face, it is the plain meaning of that language that
   controls. B-307720, Sept. 27, 2007.

   When we examine the terms contained in section 872 and apply them to the
   facts before us, we see that the term "function" is broadly defined and
   that other key terms such as "reallocate," "alter," and "organizational
   unit" are clear and unambiguous when viewed in the context of DHS's
   organizational structure. The two organizational units involved in the
   transfer, NPPD and OPS, are significant components of DHS. NPPD is a
   Directorate and is led by an Under Secretary of the department. OPS,
   headed by the Director of Operations Coordination, works to deter, detect,
   and prevent terrorist acts by coordinating the work of federal, state,
   territorial, tribal, local, and private sector partners, and by collecting
   and fusing information from a variety of sources. The Director has a
   leadership position within the department on a par with other key
   department officials and reports directly to the Secretary. DHS
   Organizational Chart, contained in Russell Letter, at Tab 5. By
   transferring the PFO support function, the Secretary is reallocating this
   significant responsibility to the Director of Operations and, in the
   Secretary's own words, completing an "organizational transition." Chertoff
   Letter. Moreover, DHS is modifying both NPPD and OPS organizations. As a
   result of the transfer, NPPD will "cease to have a staff support role" and
   OPS will be responsible for, among other things, training a cadre of 75
   PFOs. Id. We therefore conclude that the Secretary is "reallocat[ing]
   functions" and "alter[ing]" two "organizational units" under section 872
   in violation of the prohibition.

   DHS argues that the Homeland Security Act vests the Secretary with the
   authority to make changes to allow the department to function more
   efficiently and that the transfer was authorized under this authority. See
   Pub. L. No. 107-296, sect. 102(a)(2), (a)(3). DHS also points to the
   Secretary's broad statutory authority to delegate functions of the
   department and asserts that the transfer is essentially a redelegation in
   which the Secretary is effectively ending his delegation to NPPD and
   redelegating the PFO function to OPS. See id. at sect. 102(b)(1).

   DHS's arguments in this regard are unpersuasive since they fail to
   recognize the well-established canon of statutory construction that each
   part or section of a statute should be construed in connection with every
   other part or section so as to produce a harmonious whole. See B-302335,
   Jan. 15, 2004, quoting 2A Sutherland, Statutes and Statutory Construction
   sect. 46:05, at 154 (6^th ed. 2000). In ascertaining the plain meaning of
   a statute, we necessarily look to the particular statutory language at
   issue, as well as the language and design of the statute as a whole.

   The Homeland Security Act provides that the Secretary shall have
   "direction, authority, and control over" the department and vests "all
   functions of all officers, employees, and organizational units" in the
   Secretary. Pub. L. No. 107-296, sections 102(a)(2), (a)(3). DHS argues
   that the Secretary, thus, has the authority, independent of section 872,
   to reorganize the department. However, reading the Homeland Security Act
   as a whole, we construe section 872, which was enacted as part of the same
   Act establishing the department, as a limitation on any general or
   inherent authority of the Secretary to reorganize the department which may
   otherwise be inferred from sections 102(a)(2) and (a)(3).

   With respect to DHS's argument that the transfer of function here was
   essentially a redelegation, we point out, initially, that nothing in the
   record suggests that the Secretary viewed this organizational transfer as
   a delegation (or redelegation). Second, the Secretary is authorized to
   delegate "except as otherwise provided by this Act." Pub. L. No. 107-296,
   sect. 102(b)(1). To the extent that a delegation results in a
   reorganization as described in section 872, section 872 would apply.
   Reading the delegation authority as suggested by the department would
   effectively remove the section 872 limitation, since such a reading would
   permit the Secretary to reallocate any function among the officers,
   employees, and organizational units of the department in disregard of
   section 872. Because of the clause in section 102(b)(1), "except as
   otherwise provided by this Act," it is clear that Congress intended the
   Secretary's delegation authority to yield to the section 872
   reorganization provision.

   Next, DHS asserts that 5 U.S.C. sect. 301 provides additional authority to
   make "minor modifications." Russell Letter, at 7. This statute, commonly
   referred to as the "housekeeping statute," is a general grant of authority
   to agencies to manage their own affairs by issuing internal regulations
   governing performance of the agency's business. See Chrysler Corp. v.
   Brown, 441 U.S. 281, 309 (1979). The statute, which dates back to George
   Washington's administration, cannot reasonably be understood to supersede
   a specific limitation, established in the department's organic
   legislation, on the Secretary's authority to reorganize the department.
   Rather, to the extent that this statute is relevant, it is limited by
   section 872, the later, specific enactment addressing the scope of the
   department's authority to organize the department. See B-308715, Apr. 20,
   2007 (stating that "it is well established that a later enacted, specific
   statute will typically supersede a conflicting previously enacted, general
   statute to the extent of the inconsistency").

   Finally, DHS argues that the department has consistently determined that
   in order for a reorganization to fall under section 872, it must involve a
   program established by the Homeland Security Act or another statute or
   involve a program with another significant variable, such as "previous,
   demonstrated Congressional interest." Russell Letter, at 8. We see no
   basis for reading section 872 in this way. The language of the statute is
   quite broad and does not include limiting language. The definition in the
   statute of "functions" includes "programs" and is not limited by number of
   employees affected, amount of money involved, or whether or not the
   function is established by statute.[3] See Pub. L. No. 107-296, sect.
   2(8).

   Regardless, the transfer of the PFO support function would appear to meet
   the criterion of "previous, demonstrated Congressional interest." The role
   of the PFO has been a matter of congressional interest for several years.
   For example, following the federal response to Hurricane Katrina, the
   House Bipartisan Committee on Katrina issued a report in February 2006
   finding, among other things, that "there was confusion over the role and
   authority of the PFO." A Failure of Initiative, Final Report of the Select
   Bipartisan Committee to Investigate the Preparation for and Response to
   Hurricane Katrina, H.R. Rep. No. 109-377, at 135 (2006). The report also
   emphasized the importance of PFO-designates completing a training program.
   Id. Moreover, GAO has been asked to testify about the roles,
   responsibilities, and lines of authority with respect to the DHS Secretary
   and the FEMA Administrator. GAO has identified persistent confusion about
   the key leadership roles, including the roles of the PFO and FCO, and, as
   recently as June 2008, GAO was asked by the Committee on Homeland
   Security, House of Representatives, for its assessment of whether the
   roles of the PFO and FCO have been sufficiently clarified. GAO, Hurricane
   Katrina: GAO's Preliminary Observations Regarding Preparedness, Response,
   and Recovery, GAO-06-442T (Washington, D.C.: Mar. 8, 2006); Emergency
   Management: GAO Responses to Post-hearing Questions for the Record,
   GAO-08-1003R (Washington, D.C.: July 15, 2008).

   We also believe that reading the section 872 authority as applicable to
   the transfer of the PFO support program would be consistent with DHS's
   prior use of the section 872 authority.[4] For example, in 2003, the
   Department provided notice under section 872 that it was transferring the
   Federal Air Marshall Program and Explosives Unit from the Transportation
   Security Administration to the then-Bureau of Immigration and Customs
   Enforcement. Russell Letter, at 5. DHS states further that "[m]oving this
   program [from] one agency to another is precisely [the] type of
   reorganization that requires section 872 notice to Congress." Id.
   Similarly, in 2004, DHS informed Congress of its intent to move the Air
   and Marine Operations from U.S. Immigration and Customs Enforcement to
   U.S. Customs and Border Protection in order to realign and streamline
   resources. Id. More recently, DHS states that it used its section 872
   authority to transfer the US-VISIT program into NPPD. Russell Letter, Tab
   16, at 7. In its notification letter, DHS explained that the "US-VISIT
   mission includes routine and extensive coordination across multiple DHS
   components, with foreign governments, and with other Federal agencies . .
   . . We are relocating the program to the NPPD to support coordination for
   the program's protection mission and to strengthen DHS management
   oversight." Russell Letter, Tab 15, at 8. Turning to the transfer of the
   PFO support function at issue here, we see no reason to believe, based on
   past practices of the department, that section 872 was not applicable.
   Indeed, the Secretary himself characterized the transfer of the PFO
   support function as an "organizational transition." Chertoff Letter, at 2.

   CONCLUSION

   The prohibition against using the authority provided under section 872 of
   the Homeland Security Act to transfer functions within the Department was
   in effect during the pendency of the Continuing Resolution, including on
   October 1, 2007, the date of the transfer. The "organizational transition"
   of moving staff support for PFOs from one organizational unit to another
   was a transfer under the plain meaning of section 872 and was similar to
   prior transfers for which DHS provided notice under that authority. We
   conclude that DHS's transfer of the PFO support program, effective October
   1, 2007, was within the scope of section 872 and therefore was prohibited
   under the Continuing Resolution.

   Sincerely yours,

   Gary L. Kepplinger
   General Counsel

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

   [1] Alternatively, the Secretary may undertake a reorganization pursuant
   to a Reorganization Plan submitted by the President to the appropriate
   congressional committees. Pub. L. No. 107-296, sect. 1502.

   [2] Department of Homeland Security Appropriations Act, Pub. L. No.
   109-295, 120 Stat. 1355 (Oct. 4, 2006) (2007 DHS Appropriations Act).

   [3] DHS also asserts that the transfer is not covered by section 872
   because the PFO function is a collateral duty. The function transferred,
   however, was the PFO support function, not the PFO function itself. In any
   event, the definition of "functions" includes "duties" and is not limited
   to full-time or primary duties. See Pub. L. No. 107-296, sect. 2(8).

   [4] DHS states that it has provided written notice to Congress under
   section 872 of the Homeland Security Act nine times, but that in five of
   these cases, section 872 notice was not required. Russell Letter, at 4-6.
   While we do not express an opinion on whether notice was in fact required,
   we note that with one exception, each of the letters to Congress advised
   that the notification was being provided "in accordance with Section 872
   of the Homeland Security Act." See Russell Letter, Tabs 6-16. Regarding
   the notification letter that did not contain an explicit reference to
   section 872, DHS advises that the transfer at issue in that letter was in
   fact conducted pursuant to section 872. See Russell Letter, at 5 and Tab
   11.