B-126599, APRIL 5, 1956, 35 COMP. GEN. 545

B-126599: Apr 5, 1956

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THE EMERGENCY FUND APPROPRIATION IS AVAILABLE FOR NECESSARY "TO MEET EXTRAORDINARY OR UNUSUAL CIRCUMSTANCES ARISING IN THE INTERNATIONAL AFFAIRS OF THE GOVERNMENT" AND IS "FOR USE IN THE PRESIDENT'S DISCRETION AND WITHOUT REGARD TO SUCH PROVISIONS OF LAW AS HE MAY SPECIFY.'. IN HIS LETTER THE PRESIDENT DESIGNATED THE DIRECTOR OF THE UNITED STATES INFORMATION AGENCY AS COORDINATOR OF THE EMERGENCY FUND AND AUTHORIZED HIM TO ALLOCATE IT AMONG THE PARTICIPATING AGENCIES TO WHOM THE PRESIDENT THEREIN DELEGATED "POWER TO EXPEND THEM IN THEIR DISCRETION FOR ITEMS THAT WILL FURTHER THE GENERAL PURPOSES SET OUT IN THE PRESIDENT'S LETTER. WAS NOT LISTED IN THE PRESIDENT'S LETTER OF AUGUST 16. YOU SAY THERE IS NO STATUTORY PROVISION WHICH IN SPECIFIC TERMS MAKES THE PRESIDENT'S EMERGENCY FUND AVAILABLE FOR THE EMPLOYMENT OF EXPERTS AND CONSULTANTS.

B-126599, APRIL 5, 1956, 35 COMP. GEN. 545

APPROPRIATIONS - EMERGENCY FUNDS - EXPENDITURES WITHOUT REGARD TO LAW ALTHOUGH THE LANGUAGE OF AN EMERGENCY FUND APPROPRIATION, WHICH AUTHORIZES THE PRESIDENT IN HIS DISCRETION TO MAKE EXPENDITURES WITHOUT REGARD TO LAW, DOES NOT IN ITSELF OPERATE TO WAIVE FEDERAL STATUTES AND RULES CONTROLLING THE EXPENDITURE OF APPROPRIATED FUNDS, THE BROAD SCOPE OF THE DISCRETIONARY AUTHORITY VESTED IN THE PRESIDENT PERMITS THE WAIVER OF SPECIFIC APPROPRIATION RESTRICTIONS, SUCH AS THE RESTRICTION ON EMPLOYMENT OF EXPERTS AND CONSULTANTS WITHOUT SPECIFIC STATUTORY AUTHORIZATION.

TO THE SECRETARY OF COMMERCE, APRIL 5, 1956:

ON JANUARY 10, 1956, YOUR ASSISTANT SECRETARY ( ADMINISTRATION) REQUESTED ADVICE AS TO THE DEPARTMENTAL AUTHORITY TO AUTHORIZE EXPENDITURES FROM YOUR DEPARTMENT'S ALLOCATION OF THE APPROPRIATION " EMERGENCY FUND FOR INTERNATIONAL AFFAIRS," CONTAINED IN THE SUPPLEMENTAL APPROPRIATION ACT, 1956, PUBLIC LAW 219, APPROVED AUGUST 4, 1955, 69 STAT. 450, 465. THE PARTICULAR QUESTION PRESENTED CONCERNS THE SCOPE OF THE AUTHORITY DELEGATED TO THE AGENCIES USING FUNDS ALLOCATED PURSUANT TO THE PRESIDENT'S LETTER DATED AUGUST 16, 1955, AND WHETHER SUCH DELEGATED AUTHORITY INCLUDES AUTHORITY TO EMPLOY EXPERTS AND CONSULTANTS AS PROVIDED IN SECTION 15 OF THE ACT OF AUGUST 2, 1946, 5 U.S.C. 55A.

THE EMERGENCY FUND APPROPRIATION IS AVAILABLE FOR NECESSARY "TO MEET EXTRAORDINARY OR UNUSUAL CIRCUMSTANCES ARISING IN THE INTERNATIONAL AFFAIRS OF THE GOVERNMENT" AND IS "FOR USE IN THE PRESIDENT'S DISCRETION AND WITHOUT REGARD TO SUCH PROVISIONS OF LAW AS HE MAY SPECIFY.'

IN HIS LETTER THE PRESIDENT DESIGNATED THE DIRECTOR OF THE UNITED STATES INFORMATION AGENCY AS COORDINATOR OF THE EMERGENCY FUND AND AUTHORIZED HIM TO ALLOCATE IT AMONG THE PARTICIPATING AGENCIES TO WHOM THE PRESIDENT THEREIN DELEGATED "POWER TO EXPEND THEM IN THEIR DISCRETION FOR ITEMS THAT WILL FURTHER THE GENERAL PURPOSES SET OUT IN THE PRESIDENT'S LETTER, AND WITHOUT REGARD TO CERTAIN LAWS THEREIN CITED. SECTION 15 OF THE ACT OF 1946, 5 U.S.C. 55A--- WHICH PROVIDES FOR THE EMPLOYMENT OF EXPERTS AND CONSULTANTS ON A TEMPORARY OR INTERMITTENT BASIS "WHEN AUTHORIZED IN AN APPROPRIATION OR OTHER ACT"-- WAS NOT LISTED IN THE PRESIDENT'S LETTER OF AUGUST 16, 1955, AND YOU SAY THERE IS NO STATUTORY PROVISION WHICH IN SPECIFIC TERMS MAKES THE PRESIDENT'S EMERGENCY FUND AVAILABLE FOR THE EMPLOYMENT OF EXPERTS AND CONSULTANTS. ALSO, THE PRESIDENT'S LETTER LIMITS THE USE OF THE FUNDS, AS FOLLOWS:

I WISH TO EMPHASIZE THAT THESE FUNDS ARE TO BE USED SOLELY FOR EXPENSES DIRECTLY CHARGEABLE TO APPROVED PROJECTS OR TO ADMINISTRATIVE EXPENSES OF THE PROGRAM. DIRECT ADMINISTRATIVE EXPENSES CHARGEABLE TO THE PROGRAM SHOULD BE KEPT TO A MINIMUM AND AGENCY OVERHEAD SHOULD BE MET FROM THE GENERAL FUNDS OF THE PARTICIPATING AGENCIES. YOU POINT OUT THAT LATE IN 1954 THE COORDINATOR TATED:

* * * "THERE ARE CERTAIN EXPENDITURES WHICH MAY NOT ORDINARILY BE MADE OUT OF APPROPRIATED FUNDS WITHOUT SPECIFIC LEGISLATIVE AUTHORITY (E.G., REPRESENTATION) WHICH MAY BE AUTHORIZED AT THE DISCRETION OF THE DIRECTOR. APPROVAL OF SUCH EXPENDITURES WILL BE MADE "UPON APPLICATION OF AGENCIES EXPENDING FUNDS FROM THE EMERGENCY FUND FOR INTERNATIONAL AFFAIRS.'"

PURSUANT TO THE ABOVE INSTRUCTIONS THE COORDINATOR AUTHORIZED YOUR DEPARTMENT TO RETAIN EXPERTS AND CONSULTANTS IN ACCORDANCE WITH THE PROVISIONS OF 5 U.S.C. 55A ABOVE IN CARRYING OUT TRADE FAIR PROGRAMS WITH THE EMERGENCY FUND. YOU SAY YOUR DEPARTMENT HAS BEEN GUIDED BY THIS RULING IN CARRYING OUT ITS RESPONSIBILITIES UNDER THE PRESIDENT'S DELEGATION AND ALLOCATION OF FUNDS.

WE HAVE GIVEN CAREFUL CONSIDERATION TO THE LANGUAGE OF THE EMERGENCY FUND APPROPRIATION PROVISION AND TO THE DELEGATION LETTER OF THE PRESIDENT DATED AUGUST 16, 1955. WHILE WE RECOGNIZE THAT THERE EXISTS A BASIS FOR CONSTRUING THE PHRASE "IN THE PRESIDENT'S DISCRETION" AS BEING "A SUBSTITUTE FOR THE USUAL RECITATION OF PERMISSIBLE ITEMS OF EXPENDITURES," OUR VIEW IS THAT THE EMERGENCY FUND APPROPRIATION LANGUAGE DOES NOT IN ITSELF OPERATE TO WAIVE FEDERAL STATUTES AND RULES THEREUNDER CONTROLLING THE EXPENDITURE OF APPROPRIATED FUNDS. THERE IS NO DOUBT, HOWEVER, THAT ITS BROAD SCOPE PERMITS SUCH A WAIVER BY THE PRESIDENT. YOU INDICATE THAT FROM THE INCEPTION OF THE PROGRAM UNDER THE PROVISIONS OF THE EMERGENCY FUND FOR INTERNATIONAL AFFAIRS THE COORDINATOR HAS INTERPRETED THE AUTHORITY DELEGATED TO HIM BY THE PRESIDENT AS BEING COMPREHENSIVE ENOUGH TO AUTHORIZE HIM WITHIN HIS DISCRETION TO WAIVE A RESTRICTION SUCH AS FOUND IN THE LANGUAGE,"WHEN AUTHORIZED IN AN APPROPRIATION OR OTHER ACT," AS PROVIDED IN SECTION 15 OF THE ACT OF AUGUST 2, 1946, ABOVE. WHILE WE DO NOT BELIEVE THE TERMS OF THE LETTER OF DELEGATION WARRANT THAT CONCLUSION, THE LETTER DELEGATED TO THE COORDINATOR THE GENERAL OPERATION AND CONTROL OF THE EMERGENCY FUND.

IN THE CIRCUMSTANCES, WE ARE NOT DISPOSED AT THIS TIME TO QUESTION THE EXERCISE OF THE WAIVER PROVISION OF THE LAW BY THE COORDINATOR AND, ACCORDINGLY, WILL NOT OBJECT TO THE USE OF THE EMERGENCY FUND FOR EMPLOYMENT OF EXPERTS AND CONSULTANTS IN ACCORDANCE WITH 5 U.S.C. 55A. DO FEEL, NEVERTHELESS, THAT THERE SHOULD BE A CLARIFICATION OF THIS MATTER. APPROPRIATE STEPS SHOULD BE INITIATED ADMINISTRATIVELY, EITHER TO HAVE THE PRESIDENT WAIVE RESTRICTIONS ON EXPENDITURES OF APPROPRIATED FUNDS TO THE EXTENT HE DEEMS NECESSARY, OR SPECIFICALLY TO DELEGATE THE WAIVER POWER TO THE COORDINATOR OR SUCH OTHER OFFICIAL AS HE CONSIDERS APPROPRIATE. SEE PUBLIC LAW 673, 64 STAT. 419.