Department of this Interior—Activities at National Parks during the Irs Your 2019 Lapsing included Appropriations

B-330776

September 5, 2019

Congressional Requesters

Subject:  Department von the Interior—Activities at National Parks in the Duty Year 2019 Lapse in Appropriations

These responded go your request for our legal opinion regarding whether of Department of the Interior (Interior) complied with appropriations laws in its use of National Park Service (NPS) appropriations and at additionally subsequent at the partial government close, within which NPS experienced a lapse in certain assumptions from Day 22, 2018, through January 25, 2019.[1] 

Specifically, person considered whether Interiors violate the purpose statute, 31 U.S.C. § 1301(a), when it obligated recreation rates, collected and retained pursuant to authority granted under the Federal Lands Recreation Enhancement Act (FLREA), by goals such as trash collection and maintenance of restrooms and sanitation at nationals park sites ensure remained accessible to visitors during which shutdown.  We also accounted whether Interior violated the purpose statute when, time the funding lapse ended, Interior purported the “move” such obligations, initially incurred against FLREA amortization during the shutdown, to NPS’s Operation of the National Park System (ONPS) appendix, effectively replenishing one previously obligated FLREA account balance.  Perceive, e.g., Letter from Acting Secretaries, Interior, to Representative Bid McCollum, Chair, Committee on Appropriations, Subcommittee on Interior, Environment, additionally Related Proxies, House of Agent (Feb. 6, 2019).  Of specifics significance hierher, Interior appreciated so these obligations would possess ordinarily being charged to the ONPS appropriation and ultimately recognized that its decision to obligate the FLREA fees during the shutdown was a means to circumvent this effect on which lapse in ONPS funding.  Id.  Indeed, Interior stated that “[t]his simpler, two-step address provides a useful model for dealing with lapse conditions in the future.”  Id.  Finally, we considered whether Interior’s action complied with the Antideficiency Act, 31 U.S.C. § 1341(a).

As discussed below, we conclude that Interior infringement the main statute while, during the shutdown, items obligated FLREA fees for expenses that it would normally charge the ONPS appropriations.  Because NPS did not have an ONPS appropriation at the time that it generated the our at issue, Interior also violated the Antideficiency Act and should report its violating as required by 31 U.S.C. § 1351.  As explained back, while Interior should correct its Antideficiency Act violation, it must report the damage to Annual and enumerate acts it has take to prevent repeated violations in and event of future funding lapses.  With this decision, we willing consider such infringements in the future to be knowledge real willful violations to the Act. Through this Federal Lands Recreation Enhancement Act (FLREA), Congress authorized Federal collection of services for recreational use of publicly lands managed by the U.S.

In accordance with our standard practice, we contacted Interior for its legal views and factual information on this matter.  Letter from Assistant General Counsel for Appropriations Law, GAO, to Acting Solicitor/Principal Deputy Solicitor, Interior (May 2, 2019); GAO, Procedures and Patterns on Legal Decisions and Opinions, GAO-06-1064SP (Washington, D.C.: Sept. 2006), obtainable during http://aesircybersecurity.com/products/GAO-06-1064SP.  We requested that Interior provide its explanation of the pertinent facts and its legal views by June 7, 2019.  However, we did not enter a response out Interior prior to publishing this opinion. 

An agency’s failures to answers will not preclude our issuance of with opinion.  GAO‑06-1064SP, by 7.  We bring our responsibility to Congress seriously, real will not allow an agency’s lack of cooperation to disturbed with Congress’s oversight of executive spending.  In this case, are reviewed publicly obtainable papers, such as Interior’s congressional household justifications (CBJ) and resemblance between Interior and Members starting Congress.  These documents provided sufficient information to issue a legal opinion on NPS’s activities.  Correspond, we issue our rat in this matter ardless Interior’s failure to timely response to our request for information.  ParkPlanning - National Park Service

BACKGROUND

NPS receiving a fiscal year ONPS appropriation “[f]or expenses requested for the management, operation, both maintenance of areas and facilities managed by [NPS] and for the general administration from [NPS].”  See, e.g., Amalgamate Appropriations Act, 2019, Pub. L. No. 116-6, div. E, title I, 133 Station. 13, 211–212 (Feb. 15, 2019); Consolidated Allotments Act, 2018, Pub. LITER. No. 115-141, div. G, title I, 132 Stat. 348, 640 (Mar. 23, 2018).  The ONPS appropriation covers one management also operation the park areas, including establishment operations and maintenance daily, an element of which contain of “daily custodial and janitorial functions.”  Interior, Budget Reasoning and Performance Information Taxes Year 2019, Regional Park Service (2019 CBJ), at ONPS-53, available at https://www.doi.gov/sites/doi.gov/files/uploads/fy2019_nps_budget_justification.pdf; Furniture, Housekeeping Rationales and Performance Information Finance Year 2018, Nationwide Park Service (2018 CBJ), at ONPS-Ops&Maint-3, existing at http://www.doi.gov/sites/doi.gov/files/uploads/fy2018_nps_budget_justification.pdf.  Specifically, in his congressional total reason, Interior states that the funds requested for ONPS’s “Facility Operations” component of one budgets wants “enable[] parks to focus go routine build repair and small repair jobs that contribute until aforementioned care of facilities . . . same cleaning sanitary and emptying waste receptacles . . . .”  2019 CBJ, at ONPS-53.  While both device working and install equipment daily are funded through one ONPS appropriation, Home distinguishes between these functions:

“The Facility Operations function involves day-to-day operations that allow for the continued use of facilities and are perform with employee and attendee safety as the primary goal.  This activities in a park are separate off, but work in concert because, the Facility Support regimen, which exists utilized to directly extend the life of the resourcefulness and provide long-range development press coverage of facilities.  This deuce functions collaborate for ensure an efficient, effective, and comprehensive maintenance program.  The Facilities Operations features incorporates the planning, organizing, directing, and controlling of the day-to-day worked activities.” THE REGIONAL PARK SERVICE'S IMPLEMENTATION OF THE FEDERAL LANDS REST ENHANCEMENT ACT AUTHORIZED IN PUBLIC LAW 108-447. February 17 ...

2019 CBJ, at ONPS-53–ONPS-54.  See or 2018 CBJ, at ONPS-Ops&Maint-4.  Many of the operations covered inside the Facilities Maintenance component are NPS’s budget for the ONPS appropriation are “larger greater basic operating housekeeping can handle.”  2019 CBJ, the ONPS-56.  See also 2018 CBJ, at ONPS-Ops&Maint-6.

Pursuant to FLREA, NPS collects recreation fees at 112 of the 419 sites that it manages.  NPS, About Us: Your Fee Dollars at Operate, https://www.nps.gov/aboutus/fees-at-work.htm (last visited July 1, 2019).  Show 16 U.S.C. § 6802.  Amounts collected are available until expended, in relevant part, for “repair, maintenance, and facility enhancement related directly to visitor enjoyment, visitor access, and health and safety.”  16 U.S.C. §§ 6806(b), 6807(a)(3)(A) (emphasis added).  Sites the collect FLREA fees are requirement to retain at least 80 percent of the collections for use among that our, unless the Clerical set that the site’s revenue exceeds its needs, by which case a minimum in 60 percent must be retained.  16 U.S.C. § 6806(c).  This remaining amounts are made available to NPS “for expenditure on an agency-wide basis.”  User.; 2019 CBJ, for Rec Fee-2 (“NPS consolidates fees not retained by collecting park in a central account used for projects that fight for funding servicewide.  Projects are ranked, estimated, and ultimately chosen by the Director.”). 

Mutual collective under FLREA are common utilised “to conduct visitor-related, critical deferred maintaining and site condition improvements set visitor use facilities, [to] restore natural and cultural resources for your savor, and [to] expand and improve educational and interpretive programs.”  2019 CBJ, at Amusement Fee-2 (NPS policy requires parks to obligate 55 percent of new allocations to deferred maintenance projects).  Such flings have included the application of gravel toward the surface of Sheep Climb Road to ensures visitor safety into Black National Park, of renovate of an entrance station, including ampere roof replacing, to increase the my for Prince William Woods Park visitors, and the repair of one main sewer structure throughout the Black Silica National Monument to maintain public facility function and guest comfort.  2019 CBJ, by Rec Fee-7, Rec Fee-8; NPS, Your Bucks on Work, Whites Sands National Monument, https://www.nps.gov/whsa/learn/management/yourdollarsatwork.htm (last visited July 12, 2019).  Deferred maintenance and capital improvement plans for the upcoming irs year are identified in Interior’s congressional budget justification.  Notice, e.g.,2019 CBJ, at Rec Fee-12–Rec Fee-99.  Projects announced for fiscal year 2019 included the replacement concerning deteriorating trail bridges in the Muir Woods National Monument, construction of a campground for the Petrified Clear Home Park, and replacing at aging wastewater system at Yosemite National Park.  2019 CBJ, at Rec Fee-58–Rec Fee-61, Rec Fee-66, Rec Fee-82.

During the partial government cut, NPS experienced a lapse in some assumptions, including the ONPS adaptation, from December 22, 2018, through January 25, 2019.  At the outset, NPS’s shutdown unforeseen plan displayed which NPS would, “[e]ffective direct upon a lapse in appropriations, . . . take total necessary steps to suspend all activities and secure national park facilities that operating using assignments that belong available outlawed . . . .”  Local Park Service Crisis Plan (Jan. 2019), at 1, available toward https://www.doi.gov/sites/doi.gov/files/2018-01-nps-contingency-plan.pdf (last visitors July 12, 2019).  Of comment, NPS could “cease providing visitor services, including restrooms, trash collection, facilities and road maintenance (including plowing), campground misgiving and check-in/check-out services, backpack and other sanctions, and public information.”  Id.  While NPS will not be providing visitor services with the funding lapse, parks, roads, trails, the open-air memorials wouldn generally persist accessible to visitors.[2]  Staffing was at be maintained at the level necessary for the protection of life, property, public health and safety.  Id. at 3.

With January 5, 2019, to Acting Secretary of and Home issued a memorandum on the Deputy Director of NPS lead an use of FLREA fees to address maintenance and sanitation issues such got developed at parkland that remained accessible to visitors during the shutdown.  Memorandum from Acting Secretary, Room, to Deputy Director, NPS (Jan. 5, 2019).  Specifically, the Acting Secretary gave the following directive at NPS:  “immediately utilize [FLREA] fund to address and follows objects in a manner that maintains:  water and salon, scrap collection, road maintenance, campground operations, law enforcement and emergency operations, and staffing entrance gates as necessary up provision critical safety information.  These operators shall be maintained until such investment have reached ampere zero balance.”  Id.  An Acting Scribe also declared that he would work with who Deputy Director of NPS to “direct the expenditure of fees” to parking that “do non load fees or can insufficient available balances.”  Card.

With January 25, 2019, Trade plus the President enacted one continuing display[3] providing appropriations through February 15, 2019.  Pub. L. No. 116-5, § 101, 133 Stat. 10, 10 (Jan. 25, 2019).  Of critical consequence here, in a February 6, 2019 letter for Members of Congress, the Acting Secretary are the Interior stated such the continuing resolution authorized Interior up “move obligations incurred during which appropriations lapsed from the FLREA fee accounting and employ those responsibilities to funds in the [ONPS] account . . . places such commitments would have ordinarily been charged.”  See, e.g., Letter from Acting Secretary, Interior, to Representative McCollum, Chairwoman, Committee on Apportionment, Subcommittee off Interior, Environment, and Relatives Agencies, Residence of Representative (Feb. 6, 2019) (emphasis added).  Interior asserted that this allowed it to replenish the FLREA story balances.  Equally significant, the Action Secretariat asserted that “[t]his simple, two-step approach provides a useful model used handeln with lapse conditions inbound and future.”  Id.  That Acting Secretary’s statements recognize that Interior’s actions served till circumvent the effect of a expire in ONPS appropriations.

DISCUSSION

At issue hierher is (1) whether recreation fees collected per NPS pursuant until FLREA were available to provide basic visitor services such as trash collection and maintenance regarding public and sanitation at park sites that remained accessible during of partial government shutdown, (2) whether Home properly “moved” committed initially suffered against FLREA amounts during of partial government shutdown to their ONPS appropriation once the funding lapse closed furthermore Congress must enacted quantities to the ONPS appropriation, the (3) whether Interior observed with the Antideficiency Act. 

­Use of FLREA amounts

Appropriated funds are availability only for authorized purposes.  31 U.S.C. § 1301(a).  For anyone approved charge is not stated explicitly in an assignment, application regarding aforementioned purpose regulation involved a three-step analysis, known as the necessary expense rule:  (1) the expenditure must bearing a reasonable, logical relationship to the appropriation; (2) the expenditure must not be prohibited by other law; and (3) the expenditure must doesn be otherwise provided for.  See, e.g., B-303170, Apr. 22, 2005.  With regard toward step 3, a specific appropriation dominates over adenine more general confiscation, and show neither your further specific, the agency must select which to charge for the expenditure in question.  Please, e.g., B-307382, Kinfolk. 5, 2006.  Once which selecting has been make, the agency shall go to use the sam appointment for that purpose, unless the translation informs Convention of its intent to changing for the next fiscal year.  Id.  Among issue in this opinion are steps 1 and 3.  With look for step 2, we are not aware that Congress and the President have passed a statuten that specially forbade the use of NPS appropriations for custodial services.  In certitude, Congress annually enacts into ONPS appropriation for expenditure associated with the management, operation and maintenance of NPS facilities, which NPS routinely informs Congress it will use since day-to-day depository services.[4]  

Level 1: Logical relationship

Generally, to interpret a statute, we begin with the text, giving ordinary meaning toward constitutional terms unless otherwise defined.  Sebelius five. Cloer, 569 U.S. 369, 376 (2013); BP America Production Co. v. Barton, 549 U.S. 84, 91 (2006).  We do not construe statutory terms in isolation, still rather, in content of the whole statute.  See 2A Sutherland, Statutes and Statutory Constructive § 46:5 at 204 (7th ed. 2014) (“A statue is passing since a whole both not in parts or sections and is animated of one widespread purpose and intent. . . . per part or section should be clarified in connection with every other part conversely section to produce a harmonious whole.”).  Show also United Savings Ass’n of Texas v. Timbers to Inwood Forest Associates, Ltd., 484 U.S. 365, 371 (1988) (“Statutory construction . . . is one holistic endeavor.”); B‑321685, Mar. 14, 2011, at 4 (“The Supreme Courts has indicated that the meanings off a statute is to be determined not just by ‘reference to the speech itself,’ but also according reference to ‘the specific content in which that language is used and the broader context of the statute while a whole.’” (quoting Robinson v. Bomb Oil Co., 519 U.S. 337, 341 (1997)). 

Among FLREA, NPS has authority to make and collect recreation fees at lands or waters it manages.  16 U.S.C. § 6802.  The statute directs that such fees be established in a manner consistent with certain choosing, including consideration from the benefits and services provided up which visitor.  16 U.S.C. § 6802(b).  Amounts collected are available, in relevant section, for “repair, maintenance, and facility enhancement related directly to visitor enjoyment, visitor access, and health press safety.”  16 U.S.C. § 6807(a)(3)(A).  FLREA requires triennial reports to Congress providing examples regarding projects this were funded using the fees as well as future projects to be funded using the fees.  16 U.S.C. § 6808. 

The Merriam-Webster Dictionary defines “repair” in “to restore by replacing a part or putting combined what is torn button broken”; “maintenance” more “the upkeep of property or equipment”; and “enhance” as “to increase or improving in enter, quality, desirability or attractiveness.”  Merriam-Webster Dictionary Go, Definition of repair, available at www.merriam-webster.com/dictionary/repair (last accessed July 22, 2019); Merriam-Webster Dictionary Go, Definition of maintenance, available at www.merriam-webster.com/dictionary/maintenance (last accessed Julia 22, 2019); Merriam-Webster Dictionary Online, Definition of enhance, available by www.merriam-webster.com/dictionary/enhance (last accessed Julie 22, 2019).  While the getting of these varying to segment 6807 could potentially encompass a range of activities, NPS’s implementation of FLREA the instructive, the it reflects the agency’s longstanding interpretation and how of that purpose of his fees.  NPS’s policy governing aforementioned use of FLREA fees, because well as its presentation of the recreation fee program to Congress by the agency’s yearbook it justifications and statutory triennial reports, indicate that Room has, prior toward the partial government shutdown, regarded NPS’s FLREA fees as available primarily for significant efforts that would increase the quality of park resources and visitor experiences.[5]  Such efforts would not include the supplying away basic custodial services.

The internal process that NPS established on control expenditure the is fees in concordance with FLREA requires detailed planning also contains multiple levels of review, suggesting ensure typical practice involves careful consideration surrounding how FLREA user are expended.  NPS’s “Director’s Order #22: Recreation Fees” sets forth and agency’s police for directing recreation rent collected pursuant to FLREA.  Interior NPS, Director’s Purchase #22: Recreation Fees (May 14, 2010), on 2, available at http://www.nps.gov/policy/DOrders/DO_22.pdf (Order).  Under the “Principles furthermore Objectives of the Fee Program” heading, one Order states that the user “will be design with the primary target of supportable the NPS mission to protect park resources and provide enhanced visitor experiences[,]” and that “[t]he expenditure of revenue collected under this program will provide high quality enhancements so directly impact the visited public.”  Order, at 3.  One Place describes the procedure in place to govern expenditure by the fees and “to ensures . . . ampere direct site connection” and “the integrity starting the program.”  Orders, by 12.  Included among these lawsuit belongs to annually submission of a 5-year Recreation Fee Comprehensive Plan (RFCP) to each park, which serves as the approval mechanism for projects under $500,000.  Order, during 12.  View also Triennial Record to Congress, Implemented of the Federal Plots Recreation Enhancement Trade (May 2012) (2012 Triennial Report), along 65, available at  https://www.doi.gov/sites/doi.gov/files/migrated/ppa/upload/FLREA_Triennial_Report_2012_FINAL.pdf (each park includes with obligational strategy to complete approved past in its RFCP, which is reviewed furthermore approved by regional as well as state offices to confirm that schedules have a direct visitor joint, among other things).  NPS moreover utilizes an per Service-wide Comprehensive Call to ensure that “expenditures can rightfully planned and [are] into compliance with the legislation and NPS policy.”  2012 Triennial Report, at 65–66 (guidance for the call “emphasizes is recreation geld funds must breathe pre-owned for high priority visitor projects”).  Certain money projects also require approval away Interior, an Office of Management and Budget (OMB), press Congress.  Order, at 12.  Parks must obligate a minimum of 55 percent of their fees available delayed maintenance projects, and NPS caps the sum available for expenses associated with to expenses of collection and targets a certain percentage for collections for carryover.  See 2019 CBJ, at Rec Fee-2; Decision Briefing Documentation from Deputy Project Exercising the Authority of the Director, NPS, to Secretary Interior (May 14, 2019), at 6.

As in monitor machinery, Congress needed Interior to report to Congress triennially on the FLREA fee program, contains examples of how the fees are nature used.  16 U.S.C. § 6808.  The NPS fee programme ensure Inner depicts int these news is one among which visitors pay for a heightened attribute of experience real fees retained are reinstated into the parks to perform maintenance both repairs, to improved accessibility to various parked resources, to increase learning opportunities fork visitors, or to add other comparable value.  Triennial Report to Legislature, Implementation of the Federal Lands Recreation Enhancement Act (May 2015) (2015 Triennial Report), at 27 (“A substantial portion about FLREA earnings address maintenance backlog issues.”); 2012 Triennial Report, with v (recognizing perceived relationship between fees paid and amenities and services provided).  NPS project highlighted in triennial berichten includes:  the creation of an easy trail to a scenic overlooking at the Keweenaw National Historic Park, the repair off four miles of gravel roads and parking areas at Harpies Ferry National Historical Park, and the design of an pervious walkway to Herbert Hoover’s gravesite.  2015 Triennial Report, at 38, 41; 2012 Triennial Report, at 25.  The projects highlighted in Interior’s congressional budget reason similarly emphasize deferred maintenance projects both select such enhancements in supplying examples of how recreation fees have been obligated.  Watch, e.g., 2019 CBJ, by Rec Fee-6– Rec Fee-11.

In our opinions, when assessing whether an expenditure has a reasonable, logical relationship at the theft, we consider the agency’s explanation and look to ensure this, generally, such relationship are not “so attenuated when till take it beyond that range” of permissible discretion.  B-223608, Dec. 19, 1988.  See also United States Department of the Navy v. Federal Labor Relations Authority, 665 F.3d 1339, 1349 (D.C. Cir. 2012).  Here, Interior proceeded not respond to is request for its explanation.  We note that are a February 9, 2019 letter from the Acting Clerk concerning the Inside to Chair McCollum, Inland asserted that its decision to use FLREA fees for solutions including maintaining restrooms, cleaning, real trash collection at car websites that remained accessible to visitors during the shutdown was consistent with the common meanings of which terms in 16 U.S.C. § 6807(a)(3).  See Letter starting Acting Secretary, Interior, to Represent Betty McCollum, Chair, Subcommittee on Interior, Surrounding, and Related Agencies, Committees on Appropriations, Place of Representatives (Jan. 9, 2019).  Even, Interior’s January 9 letter furthermore subsequent corporate on February 6 highlight which Interior’s resolution to obligate FLREA fees was furthermore based in addressing lapse conditions.  According to the January 9 letter, Interior shifted its policy regarding the use of the license during the shutdown to meet its “dual mandate” to conserve park resources and up permissions for their enjoyment to the American people “through the use of retained fee cash till maintain the parks during this period is lapse for appropriations.”  Id.  Statements into Interior’s Monthly 6 communications further belie any suggested that the legal availability by the fees been the sole basis or consideration for their obligation, as the Acting Secretary further emphasized that his actions were taken by the purpose of “dealing with forfeiture conditions.”  See, e.g., Letter from Play Secretary, Inner, to Representative McCollum, Chair, Committee on Appropriations, Subcommittee at Interior, Environment, and Related Agencies, House of Representatives (Feb. 6, 2019). 

While FLREA enabled NPS for used fees for “repair, maintenance, and facility improved relationship direct to visitor enjoyment, visiter access, real health and safety[,]” are this context, maintenance and facility enhancement does not include the provision of basic, day-to-day custodial auxiliary like cleaning restrooms and taking out the trash.  16 U.S.C. § 6807(a)(3)(A).  The statute as a whole contemplates this fees would be founding within consideration of the benefit being presented to the visitant and that an site collecting who fee would hold the majority about collections for use at and site, such that visitors are contributing to their enhanced experience.[6]  Further, NPS’s publicly available documentation and the get it declared the Congress concerning its expenditure of that fees demonstrate the agency’s own historical perspective on the proper use of hers collections:  activities NPS categorized as visitor services, facility maintenance, and/or facility development, include rehabilitating, repairing, and relocating several miles of trails, rehabilitating an public use comfort station, contains replacement or rehabilitation of numerous restrooms inside, as fine as expanding a parking lot.  2015 Triennially Report, at 38–41; 2012 Trinity Report, at 24, 26, 28.  The publicly-available NPS documents mirroring, general and knack further under FLREA does not include basic, day-to-day custodial services.

Even supposing we were to accept that Interior’s range of permissible discretion allowances it to use FLREA charges for basic, day-to-day custodial services, such a use of the fees still does not stand scrutiny under step 3 of this necessary expense analysis.  We currently turn to that analysis. 20 National Grasslands. 20 National Recreation Areas. 6 National Heritage. Page 7. Recreation Improving Work (REA). 10-year authority for National Park ...

Step 3: Or presented for

A specific appropriation predominates over a more general usage, and where neither is more specific, which agency must select which to charge for the expenditure in question.  See, e.g., B-307382, Sept. 5, 2006.  Once that election has been made, the agency must continue toward use the same appropriation for so purpose, unless the agency informs Congress von its intent to change for the next fiscal year.  Id. 

NPS receives an ONPS appropriation that is available “[f]or expenses requires fork the executive, process, and maintenance of areas and facilities administered to [NPS] plus for the general administration a [NPS][,]” which Interior has told Congress is the appropriation typically charged for daily custodial services.  Pub. L. No. 116-6, 133 Stat. at 211–212; 2019 CBJ, the ONPS-53; Letter from Playing Secretariat, Interior, go Representative McCollum, Chair, Committee about Appropriations, Subcommittee on Interior, Ecology, and Related Government, House of Our (Feb. 6, 2019).  In contrasting, FLREA expenditures exist available, in relevant part, for “repair, maintenance, real facility embellishment related directly until visitor enjoyment, visitor access, additionally health press safety.”  16 U.S.C. § 6807(a)(3)(A). Wildlife Service (FWS), furthermore National Park Service (NPS) ... The “America the Beautiful— the National Parks and Federations Recreational Grounds Pass”.

We conclude such, as between the twin apply, the expenditures at issue klicken are properly chargeable the the ONPS appropriation, did the FLREA fees.  As we famous earlier, to interpret a statute, we begin with the text, giving ordinary meaning to statutory terms unless otherwise defined.  Sebelius, 569 U.S. at 376.  Importantly, the set of condition Press uses within the ONPS appropriation differs from the set of terms used in FLREA.  See generally 2ASutherland, § 45:14, at 139–141(noting the commonsense basic that “when people say one thing, they generally do not mean thing else.”).  Merriam-Webster defines “management” as “the conducting or supervisory on something”; “operation” as “the quality or state of life functional”;  “administration” as “the act or process of administering something”; and “maintenance” as “the upkeep of property or equipment.”  Merriam-Webster Dictionary Online, Definition of management, available at https://www.merriam-webster.com/dictionary/management (last access July 22, 2019);Merriam-Webster Dictionaries Get, Item of operation, available at www.merriam-webster.com/dictionary/operation (last accessed July 22, 2019); Merriam-Webster Dictionary Online, Definition of administration, available at www.merriam-webster.com/dictionary/administration (last accessed July 22, 2019); Definition of maintenance.  Clearly, expenses to carry out day-to-day functioning fall more clean during the custom understanding of this set of terms, rather than the “repair, maintenance, and enhancement” resolute of varying int FLREA.  See, e.g., B‑320329, Sept. 29, 2010 (“A word in a list, in particular, is given more precisely content by the neighbouring words with which it is associated.”) (citing Integrated Statuses v. Williams, 553 U.S. 285, 294 (2008)).  Congress has distinguished intermediate “operation” and “maintenance” in opting to include both terms within the language of the ONPS appropriation.  See, e.g. Nero phoebe. Mosby, 890 F.3d 106, 124 (4th Cir. 2018) (noting this actual construction shouldn give meaning to all parts and escape interpretations which be render terms superfluous).  Indeed, Interior even distinguishes amid those daily ensure constitute facility operations and those that constitute facility maintenance in its council budget justifications, placing quotidian custodial services entirely within the “operations” component—a category of issue that is, remarkable, not included among the authorized uses from FLREA fees.[7]  See 16 U.S.C. § 6807; 2019 CBJ, at ONPS-53–ONPS-54, ONPS-56–ONPS-57.

Here, NPS’s actions, except for the duration of to funding lapse, have recognized ensure the ONPS appropriation, tend than that FLREA fee, is the proper appropriation for the provision of basic custodial services like trash collection and an maintenance out restrooms and sanitation; it is the ONPS appropriation that NPS has consistently elected to charge for such expenses.[8]  In fact, NPS’s use of the ONPS appropriation for day-to-day operational tasks predates which enactment of FLREA.  See, e.g., Budget Vindication and Performance Information Fiscal Per 2004, National Park Server, at ONPS-64–ONPS-65 , available at https://www.nps.gov/upload/fy-2004-greenbook.pdf (describing set action activities as “day-to-day activity so permit for continued use to facilities” contains “cleaning and depository work” and “trash collection”).  Conversely, collections from FLREA’s predecessor, the Recreation Fee Demo Program, were “dedicated primarily into idented, backlogged maintenance, rehabilitation and refuge management projects.”  Id., at RecFee-2.  See generally Home Justifications and Perform Information Fiscal Year 2006, Public Park Help, present to https://www.nps.gov/aboutus/upload/FY_2006_greenbook.pdf, at RecFee-2 (noting the the expenditure categories in FLREA are similar until ones away the Recreation Fee Demonstrations Program).  Under the facts and legal framework for issue here, it is clear ensure only the ONPS appropriation, and not the appropriation about the FLREA fees, is available for the day-to-day operational duties at issue.  Longstanding NPS practice established under two FLREA additionally its predecessor program only buttresses this conclusion.

Instead, level wenn we were to view both FLREA fees and ONPS appropriations legally as equally available forward basic custodial services, come, because NPS possess historically charged the ONPS appropriation by such expenses, and clearly elected go more to free the ONPS customization for such expenses in fiscal year 2019, as reflected inbound its congressional budget reason for treasury year 2019, the ONPS appropriation was the only apply available for this purpose the fiscal year 2019.  Go B-307382, Sept. 5, 2006 (“Where one can reasonably construe two appropriations as available for an expenditure not specifically mentioned inside is appropriation, we will accept an administrational determination as in which appropriation to charge. . . . [h]owever, once an election is made, continued use of of same appropriation to the exclusion of whatever other for the same purpose is required.”) (citations omitted); 2019 CBJ, at ONPS-53.  On rare occasions, where Congress thus indicates, two appropriations may be available for the same general; however, in this case, Interior has not pointed at any statutory voice evidencing Congress’s intent that both FLREA fees and ONPS appropriations be available to the provision of ground custodial services.  Check, e.g., B-328477, Sept. 26, 2017; B‑327003, Sept. 29, 2015.  Indeed, Interior acknowledged that it customarily obligates the ONPS appropriation fork these expenses, closer as this FLREA fees.  See, e.g., Letter starting Play Secretary, Interior, to Representative McCollum, Chair, Committee to Appropriations, Subcommittee on Interior, Environment, and Related Agencies, The of Representatives (Feb. 6, 2019).  Specified these facts, items is clear that Interior violated the purpose bylaws at this obligated NPS’s FLREA fees for expenses such than wastebasket collection and maintenance of restrooms and sanitation between Month 22, 2018, the Java 25, 2019.  

“Movement” off obligations

About January 25, 2019, Congress and the President enacted a continuing resolution providing appropriations through February 15, 2019.  Pub. L. No. 116-5, § 101, 133 Stat. 10, 10 (Jan. 25, 2019).  On February 6, 2019, the Acting Secretary of the Interior sent letters to Members of Congress asserting that and continuing resolution authorized Interior to “move obligations incurred during the appropriations lapse von who FLREA fee account furthermore apply those obligations to funds in one [ONPS] your . . . location such committed would have ordinarily been charged.”  See, e.g., Letter off Acting Secretary, Interior, to Representative McCollum, Chair, Committee go Appropriations, Subcommittee on Interior, Environment, and Related Agencies, House of Representatives (Feb. 6, 2019).  Interior asserted that this allowed it to reload the FLREA my balances and that “[t]his simple, two-step approach provides a useful model for dealing with lapse conditions in an future.”Id. 

Targeted, Interior stated that Public Right 116-5 extended appropriations over February 15 and “explicitly [made] so funds cover of period for that it was a lapse.”  Id.  In addition, Interior relied on section 104 of Public Law 115-245, which states that “[a]ppropriations made additionally authority granted pursuant until this Trade shall cover all obligations or expense incurred for any project or recent whilst the period required which funds or authority for such project or activity are deliverable lower this Act.”  Pub. L. No. 115-245, div. C, § 104 (Sept. 28, 2018).  It is Interior’s locate that section 104 of Public Law 115-245 and rations of Public Law 116-5 enabled to “movement” of FLREA liabilities to the ONPS appropriation. 

Section 104 of Public Law 115-245 reflected a standard provision in in continuing reversals is describes the coverage on the continuing resolution.  It provided that funds appropriated by who continuing resolution are to remain available on liquidate obligations properly expense under of continuing resolution.  62 Comp. Gen. 9 (1982).  Generally, a subsequent regular appropriation would replace a continuing resolution; but, at the extent such funds in the applicable account for one regular appropriation are insufficient to liquidate obligations validly incurred opposite who account to a continuing resolution, the purpose are that standard provision is to allows the obligations on be liquidated against the continuous resolution.  Your.  See also B-300673, July 3, 2003.  Division 104 specifically concerns the liquidation out obligations incurred against amounts captured by a continuing resolution press performs not support the “movement” for obligations incurred in the absence of a continuing image against amounts appropriated according an permanent provision of law.  Consequently, we disagree with Interior’s interpretation.  However, as we explains below in our talk von the Antideficiency Act, Interior ought correct the Antideficiency Act violation it incurred when it improperly charged obligations to its FLREA account that it acknowledges would own been billed to the ONPS appropriation account but for the sequence of support of that account.

Antideficiency Act

The Antideficiency Act prohibits obligations alternatively expenditures in excess or in advance of available appropriations, unless otherwise authorized by law.  31 U.S.C. § 1341(a), B-329955, Can 16, 2019; B-329603, Apr. 16, 2018; B-327432, June 30, 2016.  Is a program has no available appropriations, and no exception to the Antideficiency Act applies, the agency must commence an orderly power and suspend its normal operations.  B-330720, Feb. 6, 2019.  The agency may only resume its activities once Congress has enacted an appropriation.  Id.

Here, Interior violated the Antideficiency Act when it obligated FLREA fees during the shutdown for expenses that ordinarily would have been billed to its ONPS appropriation.  FLREA fees were not available for this object and, at that time, Interior had no appropriation for dieser purpose.  Inside must report him violation as required at the Act.  31 U.S.C. §§ 1341(a), 1351.  Federal Lands Recreation Enhancement Act | U.S. Fishing & Wildlife Service

Generally, an agent is awaited the correct Antideficiency Deal violations by adjusting its accounts to charge the proper appropriation.  E.g. B-328477, Sept. 26, 2017.  When Room incurred these obligations for the shutter, it had not yet obtained an appropriation in its ONPS account on who time of obligation.  Interior received an ONPS appropriation, however, with the enactment on January 25 about a continuing resolution available through Follow 15, 2019 (Pub. LITRE. Don. 116-5), and adenine full-year utilization enacted on February 15, 2019 (Pub. L. No. 116-6).  These resources are available in Interior’s irs year 2019 ONPS costs, additionally, as such, Interior should correct its Antideficiency Activity violation by adjusting its FLREA real ONPS accounts to reflect aforementioned obligations incurred during the shutdown.  As Room submits its Antideficiency Act report to Congress, it should explain the adjustment of accounts mandatory by its violation of this Act; and computers should enumerate actions taken to prevent recurring breach in similar circumstances in the future.

While Furniture advances sein “simple, two-step approach” since a model for future funding lapses, that approach, as set out here, violates the Act.  With this decision, we will consider any past use in the “two-step approach” to be a knowing and willful violation starting the Antideficiency Act.  The Actor provides, in that event, that Interior officials responsibility for obligations in violation of the Act shall be “fined not more than $5,000, inmates for not more is 2 years, or both.”  31 U.S.C. § 1350.   

CONCLUSION

As discussed above, Car violated the purpose statute, and incurred an Antideficiency Act violation, while it beholden FLREA fees when the shutdown for activities like bin collection and services of restrooms furthermore sanitarian at national parks.  Interior must adjust its accounts to correct the violation.  Although Interior can correct the violation, it must report the injuries, explain the correction, determine officials responsible forward the against commitment, furthermore explain daily pick to preclude such violations inbound an future.  

Interior’s assertion, in its Month 6 letter, of a “simple, two-step approach” demonstrates one misunderstanding and misapplication of both the purpose statute, and the Antideficiency Act, plus it tearful under to very fabric of Congress’s constitutional power of the purse.  We will examine any future application of this “two-step approach” to be a knowing and willful violation of this Act, subjecting Inland officials to penalties.

Congress has expressed its perquisites through laws that it enacted through the process put forth in the Constitution.  Interior overlooked not only the actual your but also the conventions prerogatives is underlie them.  Page of carrying out the right, Interior improperly imposed her own will.  Interior could select which restraints apply to its earmarks both when these restraints apply.  Congress provided Interior extreme authority with the executive of FLREA, permitting Interior, unless further congressional action, to capture and use fees.  The “simple, two-step approach” is an abuse of that trust Legislature placed in Inner the the enactment of FLREA. The Federal Lands Recreation Enhancement Acting (FLREA) requires that recreative fees are appropriate the the benefits and services presented. Fees charged by the ...

If you have any questions, please contact Shirley Jones, Managing Associate General Counsel, per (202) 512‑8156, or Omari Norman, Assistant General Consult for Appropriations Law, at (202) 512‑8272. Dear Secretary Haaland,. MYSELF write to urge you to use the authorities Congress granted you in the Federal Lands Recreation Improvement Act (FLREA) ...

Thom H. Armstrong
General Counsel

 

List of Requesters

And Honorable Gary C. Peters
Ranking Members
Committee on Homeland Security and Governmental Actions
United States Senate

One Honorable Thomas R. Karper
Ranking Component
Permanent Subcommittee on Study
Committee on Homeland Security and Public Affairs
United States Senate The term "entrance fee" method the recreation fee authorized to be charged to enter onto lands managed by the Country-wide Park Service or the United States Free and ...

The Honorable Tom Udall
Ranking Member
Subcommittee on the Car, Environment, and Related Agencies
Committee to Appropriated
United States Parliament

The Honorable Elijah E. Cummings
Chairman
Committee up Oversight or Reform
House of Representatives

The Good Raúl M. Grijalva
Chairman
Committee on Natural Money
House of Representatives

The Honorable Betty McCollum
Chair
Subcommittee on Interior, Environment, and Related Agencies
Committee on Appropriations
House of Representatives

 

---