Document 0JjyeRkpByRG0RmQRe0N2bDdM

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY * * Washington, D.C. 20460 Office of General Counsel Julie Malta Managing Associate General Counsel U.S, Government Accountability Office 441 G Street Washington, D.C. 20548 Subject: Environmental Protection Agency-- Compliance with Statutory Notification Requirement and Antideficiency Act (B-329603) Dear Ms. Malta: This responds to your letter, dated November 2. 201?, and provides the legal views o f the U.S. Environmental Protection Agency (EPA or Agency) regarding the use o f fiscal year (FY) 2017 funds and the requirements of section 710 o f the Financial Services and General Government Appropriations Act, 2017. Based on my staffs review o f the facts and analysis o f the relevant law detailed below, all uses o f appropriated funds were consistent with the appropriations act identified. Specifically, I. have not identified any violation o f section 710 o f the Financial Services and General Government Appropriations Act, 2017 or the Antideficiency Act. Section 710 requires advance notice to the appropriations committees o f Congress prior to expending more than $5,000 to furnish or redecorate an agency head's office or to purchase furniture for or make improvements to said office, EPA's obligation of funds for the installation o f a privacy booth was an. expense necessary to ensure that the Administrator's office was equipped with an item that enables the Administrator to conduct agency business in a private space. This expenditure, therefore, did not fall within the purview o f section 710. Below we address the specific questions raised by the Government Accountability Office (GAO) delineated in your December 21, 201.7 letter to me. Our responses are provided below each question.1 1. According to Information available on USAspending.gov, in FY 2017 the EPA obligated $24,570 on a contract that provides for a "privacy boothfor the Administrator. " Please confirm the amount the EPA obligatedfor this project, the date on which EPA obligated suchfunds, the name and description o f the appropriation that EPA obligatedfor the project Sierra Club v. EPA 18cv3472 NDCA Prod 1 ED 002061 00030769-00001 Response This project entailed the expenditure o f appropriated funds for delivery and installation o f a soundproof privacy booth:. Additionally, costs also were incurred to reconfigure the space in which the booth is housed. EP obligated a total o f 143,238.681from its FY 2017 Environmental Programs and Management (EPM) appropriation to support this project. The table below outlines project iteras/activities, the amount o f funds obligated and date those funds were obligated. Project Item/Activity Privacy booth purchase, delivery and assembly Concrete Floor Leveling Drop Ceiling Installation Prep and Wall Painting Removal of CCTV Equipment Infrastructure Cabling and Wiring Amount Obligated $ 24,570.00 $ 3,470.00 $ 3,360.97 $ 3,350.00 $ 7,978.00 $ 509.71 Funds Obligation Date August 29, 2017 September 12,2017 December 12, 2017 August 23, 2017 September 14, 2017 July 12. 2017 The EPM appropriation provides in relevant part: For environmental programs and management, including necessary expenses, not otherwise provided for, for personnel and related costs . . . $2,619,799,000, to remain available until September 30, 2 0 1 8 .... Department o f the interior, Environment, and Related Agencies Appropriations Act, 2017, Pub. L. No. US-3 div G, title 11 (May 5, 2017). This appropriation includes funds for salaries, travel, contracts, grants, and cooperative agreements for pollution abatement, control, and compliance activities and administrative activities o f the operating programs, including activities under the Working Capital Fund. This appropriation supports core agency programs. 2. Please provide a description o f the project and a copy o f the statement o f workfrom the contract identified on USAspending.gov. Response The project requirement entailed the delivery and assembly o f a small privacy booth approximately 50' *wide, 42" deep and 90" high that could fit through a 34" wide doorway. Telephone conversations inside the booth could not be audible outside the booth from any1 1Of this amount, $509.71 was expended for infrastructure cabling and wiring. This amount was transferred from the agency's EPM appropriation to its working capital fund appropriation which is available to provide centralized services. We are providing this information as part o f the total project cost because it is unclear whether GAO is only seeking information related to costs that involved vendor payment. Sierra Club v. EPA 18cv3472 NDCA Prod 1 ED 002061 00030769-00002 3 side. Additionally, it was required that the booth walls be capable o f supporting a tenpound telephone affixed to the booth and that the booth contain: a shelf capable of supporting twelve pounds, one window, lockable door(s), ventilation, and a switch controlled light, it was further required that the booth accommodate installation o f cables for telephone lines. The booth also had to meet Sound Transmission Class (STC) 30. The statement of work is attached. 3. Absent advance notice to the appropriations committees o fCongress, section 710prohibits use o ffunds "in excess o f $5,000 tofurnish or redecorate. .. or to purchase furniture or make improvements f o r " an agency head's office. Pub. L No. 115-31, 131 Stal. at 379. Please provide your lego! views on the application o f this provision to the obligation o f funds for the installation o f the privacy booth. In particular, please address whether the installation o f the privacy booth constitutes an "improvement" to which the section 710 notification requirement would apply. Response It is our view that section 710 does not apply to the obligation o f funds for the installation o f the privacy booth or associated costs for space reconfiguration. The purpose of the $5,000 redecorating limitation, is to ensure that Congress is aware o f any funds (above $5,000) that are being spent for items to accommodate the individual preferences o f the appointee, rather than for items to conduct official agency business. In this case, the privacy booth does not constitute an aesthetic improvement contemplated by section 710. The definition o f "improve" is to enhance in value or quality or to make better.2 Here, the purpose o f the privacy booth is not to enhance the value o f existing office space or to make it better. Rather, the secure area serves a functional purpose, namely, to ensure that the agency head has access to a soundproof area in which he can. engage in telephone conversations to facilitate agency business, without concern that classified, deliberative, privileged, or sensitive information might, inadvertently be disclosed to those who are not intended to receive such information.3 The agency's installation o f a soundproof privacy booth and the outfitting o f space to house it constitute a change to the functionality o f unused space in order to support specific mission requirements. Given the historic nature of the building, the installation was coordinated with the General Services Administration, as lessor, to ensure that the integrity o f the building was not compromised and that the Installation conformed to certain building standards. Such functional changes are not aesthetic office enhancements. The secure space not only enables the Administrator to make and receive 2 Merriatn Webster, Definition o f Improve available at https^/www.merriam>webster.com/dictionary/itnprove (last visited January 31,2018). 3 We understand that GAO is not opining on the application o f the necessary expense rule, however, the agency determined that the expenditure of appropriated funds to procure the privacy booth was a necessary agency expense to support the Administrator's ability to conduct official business. Sierra Club v. EPA 18cv3472 NDCA Prod 1 ED 002061 00030769-00003 4 phone calls to discuss sensitive information, but it also enables him to use this area to make and receive classified telephone calls (up to the top secret level) for the purpose of conducting agency business. The agency's Security Management Division requires that a classified telephone must be located in an area where the employee can have private conversations. That is. a classified phone cannot simply be put on an office desk or in a conference room. Accordingly, the expenditure o f appropriated funds to pay for the privacy booth was undertaken in order to further the mission o f the agency and not to snake an improvement designed to enhance the aesthetic appeal of the office. The privacy booth is analogous to other functional items an employee might require to perform Ms jo b duties such as a high speed computer, high speed eopier/seanner, or television. EPA, by procuring a soundproof booth, ensured that the Administrator's office was equipped with an item to allow him to perform his official duties. Therefore, there is no basis for concluding that this type o f expenditure was subject to the $5,000 limit in section 710. 4. Section 720 defines the term "office" as "the entire suite of offices assigned to the (agency head], as weli as any other space used primarily by the {agency head] or the use of which is directly controlled by the [agency head]", id, Please describe the location of the privacy booth and state whether the location is used primarily by, is directly controlled by, or is assigned to the Administrator. In addition, please provide your legal views on whether the privacy booth is located in the Administrator's "office" under the section 710 definition of the term, Response The privacy booth is located in the Administrator's office as that term is defined under section 710. As previously explained, however, the functional changes made to the closet space to support installation o f the privacy booth do not constitute improvements to the office. In fact, the privacy booth is not at all visible upon entering the office. Therefore, it cannot be said to add to or detract from the aesthetic appeal o f the office. The privacy booth is located in a former storage closet in the Administrator's office. The storage closet was reconfigured to support the privacy booth requirement. The area where the privacy booth is located is assigned to the Administrator and primarily used by him. The privacy booth is akin to office equipment installed to support mission requirements. 5, Please provide the date, if any that the EPA sent the Committees on Appropriations of the House of Representatives and the Senate notice of the installation of the privacy booth, Response The installation o f the privacy booth was not subject to the rider in section 710; therefore. Sierra Club v. EPA 18cv3472 NDCA Prod 1 ED 002061 00030769-00004 5 notice was not sent to the Committees on Appropriations o f the House o f Representatives and the Senate. 6. To the extent they have not been addressed by the previous questions, please provide any additionalfacts or legal views you believe GAO should consider with regard to application o f section 710 to the obligation offunds for the installation of the privacy booth. Response As explained above, we determined that the expenditure o f funds related to the privacy booth was not subject to the rider in section 710. Given that appropriated funds were not used in a manner prohibited by law, the Antideficiency Act was not violated. Conclusion Based upon a review o f all available information and the application o f the legal standard to the facts o f this situation, EPA's actions were consistent with all provisions o f law GAO identified in its letter. We appreciate the opportunity to document the facts and legal analysis for the record. If you have any questions, or would like to discuss the provided responses, please feel free to contact me, at (202) 564-8064 or minol 1.kevin@epa.gov orElise Packard, Associate General Counsel for Civil Rights and Finance at (202) 564-7729 or paekard.ellse@epa.gov. Sincerely, Attachment Kevin S, Mmoli Principal Deputy General Counsel Sierra Club v. EPA 18cv3472 NDCA Prod 1 ED 002061 00030769-00005 Sierra Club v. EPA 18cv3472 NDCA Prod 1 ED 002061 00030769-00006