B-117592, NOVEMBER 9, 1953, 33 COMP. GEN. 214

B-117592: Nov 9, 1953

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000 PROVIDED FOR FEED AND SEED ASSISTANCE HAS BEEN ALLOTTED TO THE PRODUCTION AND MARKETING ADMINISTRATION WHICH IS ADMINISTERING THE DISASTER FEED PROGRAM. IT IS POINTED OUT THAT THE SITUATION HAS BECOME SO CRITICAL IN THE DROUGHT STRICKEN AREAS THAT THE AFORESAID FUNDS. WILL NOT BE SUFFICIENT TO CONTINUE THE FEED PROGRAM UNTIL CONGRESS CAN REVIEW THE SITUATION IN THE COMING SESSION. AN EXPRESSION OF MY VIEWS IS REQUESTED AS TO WHETHER. IT IS URGED THAT THE ABOVE-QUOTED TERM IS ARCHAIC IN THE LIGHT OF MODERN APPROPRIATION LANGUAGE AND WAS INCLUDED IN THE ORGANIC ACT OF 1944 IN ORDER TO MAKE PERMANENT SIMILAR PROVISIONS THERETOFORE CARRIED IN THE DEPARTMENT'S ANNUAL APPROPRIATION ACTS AND TO AVOID A POINT OF ORDER BEING RAISED TO THE LANGUAGE AS NOT BEING SUPPORTED BY BASIC LEGISLATION.

B-117592, NOVEMBER 9, 1953, 33 COMP. GEN. 214

APPROPRIATIONS - TRANSFERS - EMERGENCY FEED AND SEED ASSISTANCE PROGRAM FUNDS AVAILABLE TO THE PRODUCTION AND MARKETING ADMINISTRATION OF THE DEPARTMENT OF AGRICULTURE MAY NOT BE TRANSFERRED PURSUANT TO THE APPROPRIATIONS INTERCHANGE AUTHORITY IN SECTION 702 (B) OF THE DEPARTMENT OF AGRICULTURE ORGANIC ACT OF 1944, TO SUPPLEMENT THE SUM PROVIDED FOR EMERGENCY FEED AND SEED ASSISTANCE BY THE ACT OF JULY 31, 1953.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF AGRICULTURE, NOVEMBER 9, 1953:

CONSIDERATION HAS BEEN GIVEN TO LETTER DATED NOVEMBER 3, 1953, FROM THE ACTING SECRETARY OF AGRICULTURE, REQUESTING A DECISION AS TO WHETHER FUNDS AVAILABLE TO THE PRODUCTION AND MARKETING ADMINISTRATION MAY BE TRANSFERRED PURSUANT TO SECTION 702 (B) OF THE DEPARTMENT OF AGRICULTURE ORGANIC ACT OF 1944, 58 STAT. 741, 5 U.S.C. 572, TO SUPPLEMENT THE SUM OF $40,000,000 PROVIDED FOR EMERGENCY FEED AND SEED ASSISTANCE BY PUBLIC LAW 175, APPROVED JULY 31, 1953, 67 STAT. 297. SAID LAW MADE AN ADDITIONAL APPROPRIATION OF $130,000,000 FOR THE DISASTER LOAN REVOLVING FUND ESTABLISHED BY SECTION 84 OF THE FARM CREDIT ACT OF 1933, AS AMENDED, 12 U.S.C. 1148A, WITH THE FOLLOWING PROVISO:

* * * PROVIDED FURTHER, THAT NOT MORE THAN $40,000,000 OF SUCH FUND MAY BE USED FOR EMERGENCY FEED AND SEED ASSISTANCE UNDER SECTION 2 (D) OF SAID ACT, INCLUDING REIMBURSEMENT TO THE PRESIDENT'S EMERGENCY FUND FOR COSTS INCURRED IN FURNISHING ASSISTANCE IN THE FORM OF LIVESTOCK FEED IN DROUGHT AREAS DESIGNATED AS DISASTER AREAS BY THE PRESIDENT, UNDER AUTHORITY OF THE ACT OF SEPTEMBER 30, 1950 (42 U.S.C. 1855),AS AMENDED, BETWEEN JUNE 25 AND JULY 15, 1953: * * *

THE LETTER OF NOVEMBER 3 STATES THAT THE $40,000,000 PROVIDED FOR FEED AND SEED ASSISTANCE HAS BEEN ALLOTTED TO THE PRODUCTION AND MARKETING ADMINISTRATION WHICH IS ADMINISTERING THE DISASTER FEED PROGRAM. IT IS POINTED OUT THAT THE SITUATION HAS BECOME SO CRITICAL IN THE DROUGHT STRICKEN AREAS THAT THE AFORESAID FUNDS, INCLUDING AN AMOUNT RECENTLY MADE AVAILABLE FROM THE PRESIDENT'S DISASTER RELIEF FUND, WILL NOT BE SUFFICIENT TO CONTINUE THE FEED PROGRAM UNTIL CONGRESS CAN REVIEW THE SITUATION IN THE COMING SESSION. IN EXPLORING THE POSSIBILITY OF SECURING ADDITIONAL FUNDS UNTIL THE CONGRESS CONVENES, CONSIDERATION HAS BEEN GIVEN BY YOUR DEPARTMENT TO THE POSSIBILITY OF USING THE 7 PERCENT INTERCHANGE AUTHORITY, CONTAINED IN SECTION 702 OF THE DEPARTMENT'S ORGANIC ACT OF 1944, TO TRANSFER OTHER FUNDS ADMINISTERED BY THE PRODUCTION AND MARKETING ADMINISTRATION INTO THE DISASTER LOAN REVOLVING FUND.

AN EXPRESSION OF MY VIEWS IS REQUESTED AS TO WHETHER, UNDER THE REFERRED- TO PROVISION OF LAW, OTHER FUNDS AVAILABLE TO THE PRODUCTION AND MARKETING ADMINISTRATION, SUCH AS THE ALLOTMENT FROM SECTION 32 FUNDS (7 U.S.C. 612C), MAY BE TRANSFERRED TO THE DISASTER LOAN REVOLVING ORDER TO SUPPLEMENT THE $40,000,000 MADE AVAILABLE FOR EMERGENCY FEED AND SEED ASSISTANCE. SECTION 702 (B) OF THE 1944 ACT PROVIDES:

NOT TO EXCEED 7 PERCENTUM OF THE AMOUNTS APPROPRIATED FOR ANY FISCAL YEAR FOR THE MISCELLANEOUS EXPENSES OF THE WORK OF ANY BUREAU, DIVISION, OR OFFICE OR THE DEPARTMENT OF AGRICULTURE SHALL BE AVAILABLE INTERCHANGEABLY FOR EXPENDITURES ON THE OBJECTS INCLUDED WITHIN THE GENERAL EXPENSES OF SUCH BUREAU, DIVISION, OR OFFICE, BUT NOT MORE THAN 7 PERCENTUM SHALL BE ADDED TO ANY ONE ITEM OF APPROPRIATION EXCEPT IN CASES OF EXTRAORDINARY EMERGENCY.

THE LETTER OF NOVEMBER 3 STATES THAT YOUR DEPARTMENT HAS NEVER UNDERSTOOD OR INTERPRETED THIS INTERCHANGE AUTHORITY AS BEING LIMITED IN ITS APPLICATION TO "MISCELLANEOUS EXPENSES," OR EVEN ADMINISTRATIVE EXPENSES, BUT AS PERMITTING FREE INTERCHANGE, WITHIN THE LIMITS SPECIFIED, BETWEEN THE APPROPRIATIONS OF A BUREAU, DIVISION, OR OFFICE OF THE DEPARTMENT. ALSO, IT IS URGED THAT THE ABOVE-QUOTED TERM IS ARCHAIC IN THE LIGHT OF MODERN APPROPRIATION LANGUAGE AND WAS INCLUDED IN THE ORGANIC ACT OF 1944 IN ORDER TO MAKE PERMANENT SIMILAR PROVISIONS THERETOFORE CARRIED IN THE DEPARTMENT'S ANNUAL APPROPRIATION ACTS AND TO AVOID A POINT OF ORDER BEING RAISED TO THE LANGUAGE AS NOT BEING SUPPORTED BY BASIC LEGISLATION.

THE PURPOSE OF THE PROVISION INVOLVED IS SUMMARIZED IN HOUSE REPORT NO. 1198, 78TH CONGRESS, AS AUTHORIZING THE TRANSFER OF FUNDS BETWEEN APPROPRIATIONS WITHIN EACH BUREAU OR OFFICE OF THE DEPARTMENT WITHIN A LIMITATION OF 7 PERCENT AS AN ESSENTIAL DEVICE OR METHOD OF ADMINISTRATIVE MANAGEMENT, ESPECIALLY WHERE EMERGENCIES ARISE WHEN CONGRESS IS NOT IN SESSION, SUCH AS WHERE FIRE OCCURS AT A FIELD STATION, A WATER SUPPLY SYSTEM FAILS, AN INSECT, PEST OR PLANT DISEASE BREAKS OUT OR OTHER SITUATIONS OCCUR REQUIRING IMMEDIATE ATTENTION, THUS AVOIDING THE NECESSITY FOR DEFICIENCY APPROPRIATIONS.

IN VIEW OF THE CRITICAL NATURE OF THE SITUATION AS REPORTED IN YOUR LETTER, THE MATTER HAS BEEN CAREFULLY AND MOST SYMPATHETICALLY CONSIDERED. HOWEVER, FOR THE REASONS SET FORTH BELOW I AM COMPELLED TO THE CONCLUSION THAT THERE CLEARLY IS NO AUTHORITY OF LAW FOR THE DEPARTMENT OF AGRICULTURE TO TRANSFER ANY OF ITS FUNDS TO SUPPLEMENT THOSE PROVIDED BY PUBLIC LAW 175 FOR FEED AND SEED ASSISTANCE.

AT THE OUTSET IT IS EXTREMELY DOUBTFUL--- BOTH FROM THE LANGUAGE OF THE LAW ITSELF, AND FROM ITS STATED PURPOSE AS CONTAINED IN THE LEGISLATIVE HISTORY--- THAT SECTION 702 OF THE ORGANIC ACT OF 1944, CONTEMPLATES A TRANSFER OF FUNDS WHICH ARE COMMITTED BY OTHER LAWS TO A DEFINITE AND SPECIFIC PROGRAM, AS DISTINGUISHED FROM A TRANSFER OF FUNDS WHICH ARE AVAILABLE FOR GENERAL OR MISCELLANEOUS PURPOSES. SUCH CONCLUSION, I FEEL, IS PARTICULARLY REQUIRED WITH RESPECT TO THE TRANSFER OF THE SO CALLED SECTION 32 FUNDS MENTIONED IN THE LETTER OF NOVEMBER 3. THESE FUNDS ARE COMPRISED OF A PERCENTAGE OF THE GROSS RECEIPTS FROM DUTIES COLLECTED UNDER THE CUSTOMS LAWS. THE LAW APPROPRIATING SUCH MONEYS (7 U.S.C. 612C) EXPRESSLY PROVIDES THAT THEY SHALL BE MAINTAINED "IN A SEPARATE FUND" AND SHALL BE USED "ONLY" FOR THE THREE PURPOSES SPECIFIED THEREIN. BY VIRTUE OF SUCH RESTRICTION THE TRANSFER OF ANY PORTION OF THESE FUNDS FOR OTHER PURPOSES OR USES IS PROHIBITED IN THE ABSENCE OF A MUCH MORE SPECIFIC AND DEFINITE AUTHORITY OF LAW THAN THAT CONTAINED IN SECTION 702.

MOREOVER, HAVING IN MIND THE PURPOSE OF THE TRANSFER AUTHORITY CONTAINED IN SECTION 702, IT MUST BE CONCLUDED THAT IT WAS NOT INTENDED TO BE APPLICABLE IN A SITUATION SUCH AS IS PRESENT IN THE INSTANT CASE. THE TRANSFER AUTHORITY CLEARLY IS FOR USE IN UNEXPECTED OR UNFORESEEN SITUATIONS WHICH DEVELOP DURING THE COURSE OF A FISCAL YEAR IN THE ADMINISTRATION OF THE AFFAIRS OF A BUREAU OR OFFICE IN THE DEPARTMENT AND WHICH WERE NOT FORESEEN AT THE TIME THE APPROPRIATION LAW FOR SUCH BUREAU OR OFFICE WAS ENACTED. HOWEVER, HERE THE CONGRESS WAS FULLY COGNIZANT OF THE EMERGENCY SITUATION IN THE DROUGHT STRICKEN AREAS, AND IN RECOGNITION THEREOF MADE AN APPROPRIATION IN PUBLIC LAW 175 IN A SPECIFIED AMOUNT TO BE USED FOR FEED AND SEED ASSISTANCE. FURTHER, IT EXPRESSLY PROVIDED THAT NOT MORE THAN THE AMOUNT APPROPRIATED WAS TO BE USED FOR SUCH PURPOSE. TRANSFER ADDITIONAL MONEYS OF THE DEPARTMENT OF AGRICULTURE FOR USE IN THE FEED AND SEED ASSISTANCE PROGRAM WOULD BE DIRECTLY CONTRARY TO THE CLEARLY EXPRESSED INTENTION OF THE CONGRESS IN PUBLIC LAW 175. IN SUCH CONNECTION, THERE IS NOTED THE FOLLOWING STATEMENT IN THE REPORT OF THE COMMITTEE ON APPROPRIATIONS, HOUSE OF REPRESENTATIVES, AT THE TIME THE USE OF THE $40,000,000 CONTAINED IN PUBLIC LAW 175 WAS AUTHORIZED:

THE COMMITTEE FEELS THAT ALL EMERGENCY FEED PROGRAMS, INCLUDING THE FURNISHING OF HAY, IN WHICH THE GOVERNMENT IS TO PARTICIPATE SHOULD BE FINANCED FROM FUNDS INCLUDED IN THIS BILL FOR ,EMERGENCY FEED AND SEED ASSISTANCE.' ( ITALICS SUPPLIED.)

FOR THE REASON OUTLINED, I BELIEVE YOU WILL AGREE THAT THERE IS NO AUTHORITY OF LAW UNDER WHICH THIS OFFICE COULD AUTHORIZE THE PROPOSED TRANSFER OF FUNDS.