A-44005, NOVEMBER 11, 1935, 15 COMP. GEN. 390

A-44005: Nov 11, 1935

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

IS NOT PAYABLE FROM FUNDS COLLECTED AS CHARGES FOR SAID SERVICE. AS FOLLOWS: RECEIPT IS ACKNOWLEDGED OF YOUR LETTER OF AUGUST 20. WHICH WAS IN REPLY TO A LETTER ADDRESSED TO YOU BY MR. YOUR LETTER INDICATES THAT IT IS YOUR DESIRE TO HAVE. I SHOULD APPRECIATE IT GREATLY IF YOU WOULD HAVE THIS ACT EXAMINED AGAIN FOR THE PURPOSE OF INFORMING ME WHETHER OR NOT I WOULD BE CARRYING OUT THE PROVISIONS OF THIS ACT IF A REGULAR EMPLOYEE OF THE DEPARTMENT WERE TO BE PAID FROM "THESE MONEYS" FOR SUCH TIME AS HE MIGHT BE ENGAGED UPON SPECIAL STATISTICAL WORK WITHIN THE MEANING OF THE ACT. THE ACT REFERRED TO IS THE ACT APPROVED MAY 27. HEREBY IS. FOR THE ORDINARY EXPENSES INCIDENTAL TO THE WORK AND/OR TO SECURE IN CONNECTION THEREWITH THE SPECIAL SERVICES OF PERSONS WHO ARE NEITHER OFFICERS NOR EMPLOYEES OF THE UNITED STATES.

A-44005, NOVEMBER 11, 1935, 15 COMP. GEN. 390

STATISTICAL WORK - DEPARTMENT OF COMMERCE - USE OF REGULAR EMPLOYEES - FUNDS CHARGEABLE WITH COMPENSATION REGULAR EMPLOYEES OF THE DEPARTMENT OF COMMERCE MAY BE ASSIGNED TO THE COMPILATION OF STATISTICS AUTHORIZED TO BE COMPILED AND DISTRIBUTED UNDER THE ACT OF MAY 27, 1935 (49 STAT. 292, 293). THEIR COMPENSATION, ALTHOUGH INCLUDED IN THE ACTUAL COST OF SUCH WORK, IS NOT PAYABLE FROM FUNDS COLLECTED AS CHARGES FOR SAID SERVICE, BUT FROM APPROPRIATED FUNDS, THE AMOUNTS INCLUDED IN THE ACTUAL COST TO COVER OVERHEAD EXPENSES AND COMPENSATION OF SUCH EMPLOYEES BEING FOR COVERING INTO THE TREASURY AS MISCELLANEOUS RECEIPTS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF COMMERCE, NOVEMBER 11, 1935:

CONSIDERATION HAS BEEN GIVEN THE MATTER PRESENTED IN YOUR LETTER OF SEPTEMBER 24, 1935, AS FOLLOWS:

RECEIPT IS ACKNOWLEDGED OF YOUR LETTER OF AUGUST 20, WHICH WAS IN REPLY TO A LETTER ADDRESSED TO YOU BY MR. KERLIN, MY ADMINISTRATIVE ASSISTANT, ON JULY 20.

ALTHOUGH SECTION 2 OF PUBLIC, NO. 72 GIVES THE SECRETARY OF COMMERCE SOLE AUTHORITY TO ADMINISTER "ALL MONEYS" COLLECTED UNDER THE ACT AND AUTHORIZES HIM TO USE "THESE MONEYS" FOR THE ORDINARY EXPENSES INCIDENTAL TO THE WORK, YOUR LETTER INDICATES THAT IT IS YOUR DESIRE TO HAVE, IN CERTAIN INSTANCES, PART OF THE "ACTUAL COSTS" DEPOSITED AS MISCELLANEOUS RECEIPTS.

THIS ACT PLACES UPON THE SECRETARY OF COMMERCE RESPONSIBILITY FOR THE ADMINISTRATION AND USE OF THE FUNDS. IF IT BECOMES NECESSARY IN THE INTERESTS OF EFFICIENT OPERATION TO USE A REGULAR EMPLOYEE OF THE DEPARTMENT UPON THIS SPECIAL STATISTICAL WORK, AND TO CHARGE HIS SALARY TO THE MONEYS REFERRED TO IN THE ACT, IT HAS SEEMED TO ME THAT WE WOULD BE REQUIRED TO SO HANDLE THE MATTER.

I SHOULD APPRECIATE IT GREATLY IF YOU WOULD HAVE THIS ACT EXAMINED AGAIN FOR THE PURPOSE OF INFORMING ME WHETHER OR NOT I WOULD BE CARRYING OUT THE PROVISIONS OF THIS ACT IF A REGULAR EMPLOYEE OF THE DEPARTMENT WERE TO BE PAID FROM "THESE MONEYS" FOR SUCH TIME AS HE MIGHT BE ENGAGED UPON SPECIAL STATISTICAL WORK WITHIN THE MEANING OF THE ACT.

THE ACT REFERRED TO IS THE ACT APPROVED MAY 27, 1935, 49 STAT. 292, 293, AND WHICH PROVIDES:

THAT THE DEPARTMENT OF COMMERCE BE, AND HEREBY IS, AUTHORIZED, WITHIN THE DISCRETION OF THE SECRETARY OF COMMERCE, UPON THE WRITTEN REQUEST OF ANY PERSON, FIRM, OR CORPORATION, TO MAKE SPECIAL STATISTICAL STUDIES RELATING TO FOREIGN TRADE, DOMESTIC TRADE, AND OTHER ECONOMIC MATTERS FALLING WITHIN THE PROVINCE OF THE DEPARTMENT OF COMMERCE; TO PREPARE FROM ITS RECORDS SPECIAL STATISTICAL COMPILATIONS; AND TO FURNISH TRANSCRIPTS OF ITS STUDIES, TABLES, AND OTHER RECORDS, UPON THE PAYMENT OF THE ACTUAL COST OF SUCH WORK BY THE PERSON, FIRM, OR CORPORATION REQUESTING IT.

SEC. 2. ALL MONEYS HEREAFTER RECEIVED BY THE DEPARTMENT OF COMMERCE IN PAYMENT OF THE COST OF SUCH WORK SHALL BE DEPOSITED IN A SPECIAL ACCOUNT TO BE ADMINISTERED UNDER THE DIRECTION OF THE SECRETARY OF COMMERCE. THESE MONEYS MAY BE USED, IN THE DISCRETION OF THE SECRETARY OF COMMERCE, AND NOTWITHSTANDING ANY OTHER PROVISION OF LAW, FOR THE ORDINARY EXPENSES INCIDENTAL TO THE WORK AND/OR TO SECURE IN CONNECTION THEREWITH THE SPECIAL SERVICES OF PERSONS WHO ARE NEITHER OFFICERS NOR EMPLOYEES OF THE UNITED STATES.

SEC. 3. THE SECRETARY OF COMMERCE SHALL PRESCRIBE RULES AND REGULATIONS FOR THE ENFORCEMENT OF THIS ACT; AND THE SECRETARY OF COMMERCE SHALL MAKE A REPORT TO CONGRESS, AT THE BEGINNING OF EACH REGULAR SESSION, GIVING A DETAILED STATEMENT SHOWING (1) THE NAME OF EVERY PERSON, FIRM, OR CORPORATION FOR WHOM WORK HAS BEEN PERFORMED UNDER THE AUTHORITY OF THIS STATUTE; (2) THE NATURE OF THE SERVICES RENDERED TO HIM; (3) THE PRICE CHARGED FOR THESE SERVICES BY THE DEPARTMENT OF COMMERCE; AND (4) THE MANNER IN WHICH THE MONEYS RECEIVED WERE DEPOSITED OR USED.

YOUR PRESENT INQUIRY SEEMS TO BE DIRECTED PARTICULARLY TO THAT PART OF MY LETTER OF AUGUST 20, 1935, TO YOU, READING AS FOLLOWS:

AMOUNTS ADDED TO COVER OVERHEAD EXPENSES, AND AMOUNTS PAID TO REGULAR EMPLOYEES OF THE BUREAU, IF ENGAGED DIRECTLY IN "SPECIAL STATISTICAL WORK" WITHIN THE PURVIEW OF THE ACT OF MAY 27, 1935, SUPRA, REPRESENT EARNINGS AND ARE FOR COVERING INTO THE TREASURY OF THE UNITED STATES AS MISCELLANEOUS RECEIPTS.

I FIND NOTHING IN THE ACT, SUPRA, WHICH EVINCES ANY INTENTION THAT THE CLASS OF FUNDS HERE INVOLVED SHOULD BE ACCOUNTED FOR IN ANY MANNER OTHER THAN UNDER EXISTING STATUTORY REQUIREMENTS FOR GOVERNMENTAL ACCOUNTING. THE PROVISION IN THE ACT THAT THE SPECIAL ACCOUNT IS "TO BE ADMINISTERED UNDER THE DIRECTION OF THE SECRETARY OF COMMERCE" CANNOT BE CONSTRUED AS AN AUTHORIZATION FOR THE ADMINISTRATION OF THE FUNDS WITHOUT REGARD TO EXISTING GOVERNMENTAL ACCOUNTING REQUIREMENTS.

APPROPRIATIONS MADE FOR EXECUTIVE DEPARTMENTS GENERALLY ARE FOR ADMINISTRATION "UNDER THE DIRECTION" OF THE HEAD OF THE PARTICULAR DEPARTMENT. HENCE, THE CLAUSE "UNDER THE DIRECTION OF THE SECRETARY OF COMMERCE," APPEARING IN THE ACT, SUPRA, CAN CARRY NO GREATER SIGNIFICATION THAN IS GIVEN TO SIMILAR "DIRECTIONS" APPLICABLE TO APPROPRIATIONS, GENERALLY.

THE OTHER PROVISION IN THE ACT, THAT THESE MONEYS MAY BE USED "NOTWITHSTANDING ANY OTHER PROVISION OF LAW, FOR THE ORDINARY EXPENSES INCIDENTAL TO THE WORK AND/OR TO SECURE IN CONNECTION THEREWITH THE SPECIAL SERVICES OF PERSONS WHO ARE NEITHER OFFICERS NOR EMPLOYEES OF THE UNITED STATES," HAS NO RELATION TO THE MATTER OF GOVERNMENTAL ACCOUNTING PROCEDURE, BUT RELATES RATHER TO THE KIND OF EXPENDITURES WHICH MAY BE MADE FROM SAID FUND, SUCH AS THE HIRING OF EXPERTS WITHOUT REGARD TO CIVIL SERVICE RULES, ETC.

THE ACT, SUPRA, WHILE AUTHORIZING THE USE OF THE FUNDS COLLECTED THEREUNDER "IN THE DISCRETION OF THE SECRETARY OF COMMERCE AND NOTWITHSTANDING ANY OTHER PROVISION OF LAW" FOR THE SECURING OF ,SPECIAL SERVICES OF PERSONS WHO ARE NEITHER OFFICERS NOR EMPLOYEES OF THE UNITED STATES" DOES NOT PROHIBIT THE USE OF REGULAR GOVERNMENTAL PERSONNEL IN THE ADMINISTRATION OF THE ACT. ON THE CONTRARY, THE ACT CARRIES A NECESSARY IMPLICATION THAT SUCH PERSONNEL MAY BE USED, BUT THAT, IN THE DISCRETION OF THE SECRETARY, OTHER CLASS OF PERSONNEL, ALSO, MIGHT BE EMPLOYED. SPECIFICALLY, THEREFORE, YOU ARE ADVISED THAT A REGULAR EMPLOYEE OF THE DEPARTMENT MAY BE USED IN CONNECTION WITH THE FURNISHING OF THE STATISTICS PROVIDED FOR BY THE ACT, BUT HIS COMPENSATION, HOWEVER, MAY NOT BE PAID FROM THE MONEYS COLLECTED THEREUNDER. TO PERMIT THE PAYMENT OF COMPENSATION OF A REGULAR EMPLOYEE OF THE DEPARTMENT FROM "THESE MONEYS" WOULD TEND TO AUGMENT THE APPROPRIATION SPECIFICALLY MADE BY THE CONGRESS FOR THE PAYMENT OF SUCH PERSONNEL REGULARLY EMPLOYED BY THE DEPARTMENT. FURTHERMORE, THE SPECIFIC LANGUAGE OF THE ACT LIMITS THE USES OF THE FUND TO "THE ORDINARY EXPENSES INCIDENTAL TO THE WORK AND/OR TO SECURE IN CONNECTION THEREWITH THE SPECIAL SERVICES OF PERSONS WHO ARE NEITHER OFFICERS NOR EMPLOYEES OF THE UNITED STATES.' CLEARLY THE SALARIES OF THE REGULAR EMPLOYEES OF THE DEPARTMENT CANNOT BE REGARDED AS A PART OF "THE ORDINARY EXPENSES INCIDENTAL TO THE WORK," AND THE ONLY OTHER USE AUTHORIZED IS TO SECURE "SPECIAL SERVICES OF PERSONS WHO ARE NEITHER OFFICERS NOR EMPLOYEES OF THE UNITED STATES.'

HOWEVER, THE "ACTUAL COST OF SUCH WORK" WHICH, UNDER SECTION 1 OF THE ACT IS TO BE PAID "BY THE PERSON, FIRM, OR CORPORATION REQUESTING IT" IS NOT LIMITED TO THE AMOUNT OF THE EXPENDITURES AUTHORIZED TO BE MADE FROM THE SPECIAL FUND, BUT INCLUDES, ALSO, OVERHEAD EXPENSES, INCLUDING THE COMPENSATION PAID TO REGULAR EMPLOYEES OF THE GOVERNMENT ENGAGED IN WHOLE OR IN PART UPON THE WORK CALLED FOR IN THE ACT. SINCE SUCH OVERHEAD COSTS ARE, IN THE FIRST INSTANCE, PAID FROM APPROPRIATED MONEYS THE AMOUNTS CHARGED ON ACCOUNT THEREOF AS A PART OF THE ACTUAL COST OF THE STATISTICS FURNISHED, AND FOR WHICH COSTS THE GOVERNMENT IS TO BE REIMBURSED, CONSTITUTE EARNINGS OF THE UNITED STATES, AND AS SUCH, ARE REQUIRED BY LAW TO BE COVERED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS.

BY WAY OF CONTRAST THERE IS, PARTICULARLY FOR NOTING HERE, THE PROVISIONS RELATING TO THE ACCOUNTING FOR FUNDS RECEIVED UNDER THE ACT OF APRIL 13, 1934, 48 STAT. 582, PROVIDING FOR THE FURNISHING BY THE SECRETARY OF LABOR OF STATISTICS IN RESPECT OF LABOR CONDITIONS. THE ACT THERE HAVING BEEN SPECIFIC WITH RESPECT TO THE ACCOUNTING OF FUNDS DERIVED THEREUNDER, THE ABSENCE OF ANY SUCH SPECIFIC ACCOUNTING IN RESPECT OF THE ACT HERE IN QUESTION, SUBSEQUENTLY ENACTED, MUST BE TAKEN AS INDICATIVE OF THE INTENT THAT THE USUAL GOVERNMENTAL ACCOUNTING METHODS ARE FOR EMPLOYING HERE.