B-119746, MAY 10, 1954, 33 COMP. GEN. 546

B-119746, MAY 10, 1954, 33 COMP. GEN. 546

APPROPRIATIONS - TRANSFERS WITHIN DEPARTMENTS AND ESTABLISHMENTS FOR DEFENSE ACTIVITIES - EMPLOYEE INVESTIGATIONS INVESTIGATIONS OF EMPLOYEES PURSUANT TO PROGRAM PRESCRIBED BY EXECUTIVE ORDER NO. 10450, WHILE BEING IN THE INTEREST OF NATIONAL SECURITY, DO NOT CONSTITUTE A "DEFENSE ACTIVITY" OR A RESPONSIBILITY RELATING TO THE "NATIONAL DEFENSE" WITHIN THE MEANING OF SECTION 1310 OF THE SUPPLEMENTAL APPROPRIATION ACT, 1954, WHICH PROVIDES THAT APPROPRIATIONS OR FUNDS AVAILABLE FOR SALARIES AND EXPENSES TO ANY AGENCY IN THE EXECUTIVE BRANCH OF THE GOVERNMENT SHALL BE TRANSFERRED TO ANY DEFENSE ACTIVITY UNDER JURISDICTION OF THE AGENCY IN SUCH AMOUNTS AS MAY BE NECESSARY FOR DISCHARGE OF RESPONSIBILITIES RELATING TO THE NATIONAL DEFENSE ASSIGNED TO THAT AGENCY.

ACTING COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF COMMERCE, MAY 10, 1954:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 16, 1954, REQUESTING TO BE ADVISED WHETHER SECTION 1310 OF THE SUPPLEMENTAL APPROPRIATION ACT, 1954, 67 STAT. 437, PERMITS FUNDS APPROPRIATED FOR SALARIES AND EXPENSES OF THE VARIOUS BUREAUS OF THE DEPARTMENT OF COMMERCE TO BE TRANSFERRED TO THE OFFICE OF THE SECRETARY TO FINANCE INVESTIGATIONS, UNDER EXECUTIVE ORDER NO. 10450, DATED APRIL 27, 1953, OF EMPLOYEES THROUGHOUT THE DEPARTMENT.

SECTION 1310 OF THE ACT REFERRED TO ABOVE PROVIDES, AS FOLLOWS:

DURING THE CURRENT FISCAL YEAR, PERSONNEL AND APPROPRIATIONS OR FUNDS AVAILABLE FOR SALARIES AND EXPENSES TO ANY DEPARTMENT, AGENCY, OR CORPORATION IN THE EXECUTIVE BRANCH OF THE GOVERNMENT, SHALL BE TRANSFERRED TO ANY DEFENSE ACTIVITY UNDER THE JURISDICTION OF SUCH DEPARTMENT OR AGENCY IN SUCH NUMBERS OR AMOUNTS AS MAY BE NECESSARY FOR THE DISCHARGE OF RESPONSIBILITIES RELATING TO THE NATIONAL DEFENSE ASSIGNED TO SUCH DEPARTMENT, AGENCY, OR CORPORATION BY OR PURSUANT TO LAW.

LANGUAGE SIMILAR TO THAT CONTAINED IN SECTION 1310 WAS FIRST INSERTED IN THE THIRD SUPPLEMENTAL APPROPRIATION ACT, 1951, 65 STAT. 61, AS A PROVISO TO THE APPROPRIATION " EXPENSES OF DEFENSE PRODUCTION.' AN EXAMINATION OF THE LEGISLATIVE HISTORY THEREOF DISCLOSES THE INTENTION OF THE CONGRESS IN INSERTING SUCH PROVISION WAS THAT, BY AUTHORIZING THE USE OF REGULAR APPROPRIATIONS TO CARRY OUT ANY NATIONAL DEFENSE ACTIVITIES ASSIGNED TO THE VARIOUS AGENCIES UNDER THE DEFENSE PRODUCTION ACT OF 1950, 64 STAT. 798, OR OTHER LAW, THE AGENCIES SHOULD REALIGN THEIR NONDEFENSE PROGRAMS SO AS TO ABSORB TO THE EXTENT POSSIBLE THE COST OF SUCH DEFENSE ACTIVITIES FROM REGULAR APPROPRIATIONS FOR SALARIES AND EXPENSES. IN VIEW THEREOF, QUESTION AS TO WHETHER FUNDS OF THE VARIOUS BUREAUS MAY BE TRANSFERRED TO THE OFFICE OF THE SECRETARY TO FINANCE INVESTIGATIONS THROUGHOUT THE DEPARTMENT UNDER EXECUTIVE ORDER NO. 10450 DEPENDS UPON THE QUESTION AS TO WHETHER SUCH INVESTIGATIONS PROPERLY MAY BE CONSIDERED TO CONSTITUTE A "DEFENSE ACTIVITY" OR A RESPONSIBILITY RELATING TO THE "NATIONAL DEFENSE" WITHIN THE MEANING OF SECTION 1310.

THE PURPOSE OF THE INVESTIGATIONS CONDUCTED PURSUANT TO THE EXECUTIVE ORDER IS SET FORTH IN SECTIONS 2 AND 8 (A) THEREOF AS BEING TO INSURE THAT THE EMPLOYMENT AND RETENTION IN EMPLOYMENT IN THE FEDERAL SERVICE OF THE PERSON INVESTIGATED IS CONSISTENT WITH THE INTERESTS OF THE NATIONAL SECURITY. THE PROVISIONS OF THE EXECUTIVE ORDER ARE NOT LIMITED TO ONLY THOSE AGENCIES OR BUREAUS ENGAGED IN DEFENSE ACTIVITIES BUT ARE APPLICABLE TO ALL DEPARTMENTS AND AGENCIES OF THE GOVERNMENT. CONSEQUENTLY, IT SEEMS CLEAR THAT THE PROGRAM PRESCRIBED BY EXECUTIVE ORDER NO. 10450, WHILE BEING IN THE INTEREST OF NATIONAL SECURITY, CONSTITUTES NEITHER A "DEFENSE ACTIVITY" NOR A RESPONSIBILITY RELATING TO THE "NATIONAL DEFENSE" REQUIRED BY SECTION 1310 OF THE SUPPLEMENTAL APPROPRIATION ACT, 1954, AS A PREREQUISITE TO THE TRANSFER OF FUNDS CONTEMPLATED THEREUNDER.

ACCORDINGLY, YOU ARE ADVISED THAT THE PROPOSED TRANSFER OF FUNDS IS NOT AUTHORIZED.