B-310108, Forest Service--Apportionment Limitation for Aviation Resources, February 6, 2008

B-310108 Feb 06, 2008 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights The Forest Service violated the Antideficiency Act, 31 U.S.C. sect. 1517, when it exceeded an apportionment limitation of $100 million for aviation resources to be used for forest fire suppression activities. The emergency exception to the Antideficiency Act is not applicable because the Forest Service had received an appropriation that was sufficient for these activities; the need for emergency funding was based on the apportionment limitation, which was well below the amount appropriated. View Decision B-310108, Forest Service--Apportionment Limitation for Aviation Resources, February 6, 2008 Decision Matter of: Forest Service—Apportionment Limitation for Aviation Resources File: B-310108 Date: February 6, 2008 DIGEST The Forest Service violated the Antideficiency Act, 31 U.S.C. sect. 1517, when it exceeded an apportionment limitation of $100 million for aviation resources to be used for forest fire suppression activities. The emergency exception to the Antideficiency Act is not applicable because the Forest Service had received an appropriation that was sufficient for these activities; the need for emergency funding was based on the apportionment limitation, which was well below the amount appropriated. DECISION The Forest Service has requested our decision regarding its obligation of fiscal year 2006 funds for wildland fire suppression activities. Letter from Hank Kashdan, Deputy Chief for Business Operations, Forest Service, U.S. Department of Agriculture, to David M. Walker, Comptroller General of the United States, Aug. 20, 2007 (Request Letter). This decision addresses whether the Forest Service violated the Antideficiency Act when it incurred obligations for the acquisition of aviation resources in excess of a $100 million limitation contained in an apportionment schedule footnote. Our practice when rendering decisions is to obtain a factual record from the relevant federal agency and, as appropriate, other interested parties, and to elicit the legal position, if any, of the agency and other interested parties 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 instance, the request letter included, as an attachment, a May 2007 memorandum containing the views of the Office of the General Counsel, U.S. Department of Agriculture (USDA). Memorandum from L. Benjamin Young, Jr., Assistant General Counsel, General Law Division, to J. Lenise Lago, Acting Director, Program and Budget Analysis, Forest Service (USDA Legal Opinion). We obtained relevant documents from the Forest Service, including an August 25, 2006, request for a legal opinion from USDA OGC (Request for USDA Legal Opinion) and the apportionment and reapportionment schedules for the wildland fire management account for fiscal year 2006. In addition, we engaged in a telephone conversation with Forest Service officials regarding the apportionment footnote and the agency's obligations of funds for aviation resources. Telephone conversation between Lenise Lago, Director, Program and Budget Analysis, Forest Service; Ron Ketter, Director, Strategic Planning and Performance Accountability, Forest Service; and Richard Burkard, Senior Attorney, GAO, Sept. 13, 2007 (Telephone conversation of September 13). We also spoke with OMB staff about the request. As explained below, the Forest Service violated the Antideficiency Act when it exceeded the apportionment limitation. The Forest Service did not avail itself of the applicable expedited process for seeking –emergency— reapportionments. However, once the Forest Service was aware of the excess obligation, it acted quickly to correct the violation by promptly seeking and receiving an increased apportionment. BACKGROUND Under Title III of the Department of the Interior, Environment, and Related Agencies Appropriations Act, 2006, Pub. L. No. 109-54, 199 Stat. 499 (Aug. 2, 2005), the Forest Service received an appropriation of $1,779,395,000, to remain available until expended, for wildland fire management. The appropriation provided funds for a number of activities including emergency fire suppression on or adjacent to National Forest System lands. The law did not specifically limit Forest Service spending on the acquisition of aviation resources for wildland fire suppression. USDA Legal Opinion, at 2. On September 30, 2005, the Office of Management and Budget (OMB) apportioned the wildland fire management funds among the four quarters of fiscal year 2006, ranging from $410 million to approximately $435 million per quarter, with an additional $500 million apportioned for the fourth quarter. SF 132 Apportionment and Reapportionment Schedule, Sept. 30, 2005.