B-148898 August 28, 1974

B-148898 August 28, 1974

The Honorable Leonor K. Sullivan, Chairman Committee on Merchant Marine and Fisheries House of Representatives

Dear Madam Chairman:

Your letter of August 20, 1974, requests our review of language contained in a bill before your Committee, H. R. 9869, 93rd Congress, in order to determine whether it is affected by enactment of the Impoundment Control Act of 1974.

This measure is based on draft statutory language to restrict impundments under the Migratory Bird conservation Fund suggested in our letter report dated June 28, 1973, to the Honorable John D. Dingell, Chairman of the Subcommittee on Fisheries and Wildlife Conservation and the Environment, of your Committee. The bill would amend the second sentence of section 4 of the Migratory Bird Hunting Stamp Act, as amended, 16 U.S.C. 71 8d providing for payment to, and appropriation from, the Fund of monies received from the sale of migratory bird hunting stamps--to read in part:

"*** no action of any kind may be taken to withhold, delay, or otherwise preclude the obligation or expenditure of such monies to accomplish such objects except to the extent specifically authorized or required by law on the basis of circumstances or considerations having particular application to such monies ***."

The bill would also amend the first section of the act approved October 4, 1961, as amended, 16 U.S.C. 715k-3--authorizing appropriations to the Fund--to read in part:

"No part of any appropriation made pursuant to the authority of this section may be withheld, delayed, reserved, or otherwise precluded from obligation or expenditure for the purposes for which appropriated except to the extent specifically authorized or required by law on the basis of circumstances or considerations having particular application to such appropriation."

In our report to Chairman Dingell, we explained the purposes and affect of the language suggested therein and now contained in H. R. 9869 as follows:

"The foregoing language would preclude impoundments with respect to the Migratory Bird Conservation Fund which are purportedly based upon general economic, fiscal, or policy considerations, such as the need to contain overall Federal spending in order to combat inflation, prevent borrowings in excess of the debt limitation, and/or avoid tax increases. Impoundments of this nature have been justified on the basis of alleged implicit authority derived from the statutory debt limitation, the Economy Act of 1946, and the Economic Stabilization Act. Impoundments under such authorities have no particular or special application to the Mirgratory Bird Conservation Fund.

"At the same time, it is recognized that some impoundment sections might be based upon direct and specific statutory authority. The primary example of such authority is subsection (c)(2) of the so-called Antideficiency Act, 31 U.S.C. 665 (c)(2), which provides in part:

"In apportioning any appropriation, reserves may be established to provide for contingencies, or to affect savings whenever savings are made possible by or through changes in requirements, greater efficiency of operations, or other developments subsequent to the date on which such appropriation was made available.***

"The proposed language makes clear, however that the authority to establish reserves under subsection (c)(2) is limited to circumstances or considerations having particular application to appropriations to the fund. Thus, for example, considerations relating to overall Federal spending could not be used as a basis for impoundment under the Antideficiency Act. Finally, while the proposed language would serve to make clear the limits of impoundment authority with respect to the fund we would view it as essentially a restatement of existing law applicable generally to impoundment of appropriations."

Thus the proposed language was designed to insure (1) that impoundments under the Fund would be limited to those specifically provided for by the Antideficiency Act or other statutes, if any, and (2) that impoundments purportedly made pursuant to the Antideficiency Act would be restricted to reserves to promote efficiency and economy consistent with the purposes of the Fund.

At the time of our report and prior to July 12, 1974, considerable controversy existed concerning the authority of the executive branch to impound appropriations beyond routine program-related reserves to promote efficience and economy. As indicated in our report, executive branch officials had asintained that general economic, fiscal, and policy impoundments were implicitly authorized by various statutory provisions, including the authority under former subsection (c)(2) of the Antideficience Act to establish reserves on the basis of "***other developments subsequent to the date on which such appropriation was made available." In our view, this controversy has been essentially resolved by enactment of the Impoundment Control act of 1974, approved July 12, 1974, Pub. L. 93-344, title X, 88 Stat. 297 332.

Section 1002 of the Impoundment Control act amended subsection (c)(2) of the Antideficiency Act to read as follows (underscoring supplied):

"In apportioning any appropriation, reserves may be established solely to provide for contingencies, or to affect savings whenever savings are made possible by or through changes in requirements or greater efficiency of operations. Whenever it is determined by an officer designated in subsection (d) of this section to make apportionments and reapportionments that any amounts so reserved will not be required to carry out the full objectives and scope of the appropriation concerned, he shall recommend the recission of such amount in the manner provided in the Budget and Accounting Act, 1921, for estimates of appropriations. Except as specifically provided by particular appropriations Acts or other laws, no reserves shall be established pursuant to this subsection. Reserves established pursuant to this subsection shall be reported to the Congress in accordance with the Impoundment Control Act of 1974.

The amended version of subsection (c)(2) is significant here in two respects. First, it eliminates the "other developments" clause, which had provided the basis for the contention that the Antideficiency Act authorizes reserves unrelated to the efficient and economical achievement of program objectives. Second, it prohibits the establishment of appropriation reserves except as provided in the Antideficiency Act as so amended or other specific statutory authority. The net effect of these Changes--made abundantly clear in the legislative history of the Impoundment Control Act is to negate any implicit or residual authority on the part of the executive branch unilaterally undertake general economic, fiscal, or policy impoundments. See, e.g., H. Rept. No. 93-1101, 76; S Rept. 93-688, 30 72-75; Cong. Rec., June 18, 1974, H5180, 5182; id., June 21, 1974, S11222, 11229-31; cf., H. Rept. No. 93-658, 25-26.

In view of the foregoing, we believe that section 1002 of the Impoundment Control Act accomplishes the purposes of the language of H. R. 9869 in a manner applicable generally to appropriations and budget authority, including statutory provisions concerning the Migratory Bird Conservation Fund. Moreover, the Impoundment Control Act actually goes beyond H. R. 9869 by establishing machanisms for congressional review and disposition of proposed impoundments. Under section 1013 of the Act, proposed reserves, or "deferrals," of budget authority must be requested to the Congress and re subject to disapproval by either House of Congress. In addition, our Office is required under section 1014(b)(2) to review reported deferrals and inform the Congress, among other things, whether or not, and to what extent, deferrals appear to be in accordance with existing statutory authority. Thus, for example, these provisions afford a means of monitoring compliance with the reserve authority of the Antideficiency Act on a case-by-case basis. The Act also establishes procedures govering permanent reservation, or "recission," of budget authority. See sections 1011(3) and 1012.

For the reasons discussed herein, it is our opinion that the language of H. R. 9869 concerning impounding has in effect been superseded and rendered moot by enactment of the Impoundment Control Act. Accordingly, we believe that separate enactment of such language is now unnecessary. We hope that this analysis will be of assistance to the Committee.

Sincerely yours,

R. F. Keller Acting Comptroller General of the United States