B-127113, MAY 3, 1956

B-127113: May 3, 1956

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TO THE SECRETARY OF THE INTERIOR: REFERENCE IS MADE TO LETTER OF FEBRUARY 21. REQUESTING OUR DECISION AS TO WHETHER THE CONTRACT IS SUBJECT TO THE PROVISIONS OF SECTION 5 OF PUBLIC LAW 46. WHEREAS FUNDS HERETOFORE RECEIVED UNDER THE SUBJECT CONTRACT ARE SAID TO HAVE BEEN RETAINED AND APPLIED BY THE BUREAU OF LAND MANAGEMENT "IN BETTERING THE FACILITIES FOR DETECTION. THE SAID CONTRACT WHICH IS TERMED A "COOPERATIVE AGREEMENT" WAS MADE AND ENTERED INTO AS OF JULY 1. THE EXPENDITURE AUTHORITY FOR THIS ACTIVITY WAS PROVIDED FOR BY THE INTERIOR DEPARTMENT APPROPRIATION ACT. IT IS OBSERVED THAT SIMILAR AUTHORITY WAS INCLUDED IN THE SUBSEQUENT ANNUAL SUPPLY ACTS FOR YOUR DEPARTMENT UNDER THE APPROPRIATION "MANAGEMENT OF LANDS AND RESOURCES.

B-127113, MAY 3, 1956

TO THE SECRETARY OF THE INTERIOR:

REFERENCE IS MADE TO LETTER OF FEBRUARY 21, 1956, FROM THE ADMINISTRATIVE ASSISTANT SECRETARY, SUBMITTING A COPY OF A CONTRACT BETWEEN THE BUREAU OF LAND MANAGEMENT AND THE STATE OF IDAHO FOR FIRE PROTECTION OF CERTAIN STATE-OWNED LANDS, AND REQUESTING OUR DECISION AS TO WHETHER THE CONTRACT IS SUBJECT TO THE PROVISIONS OF SECTION 5 OF PUBLIC LAW 46, APPROVED MAY 27, 1955, 69 STAT. 67, AS FOLLOWS:

"FUNDS AVAILABLE TO ANY AGENCY HEAD FOR FIRE PROTECTION ON INSTALLATIONS OR IN CONNECTION WITH ACTIVITIES UNDER THE JURISDICTION OF SUCH AGENCY MAY BE USED TO CARRY OUT THE PURPOSES OF THIS ACT. ALL SUMS RECEIVED BY ANY AGENCY HEAD FOR FIRE PROTECTION RENDERED PURSUANT TO THIS ACT SHALL BE COVERED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS.'

THE QUESTION ARISES BY REASON OF THE REQUIREMENT OF SAID SECTION 5 FOR THE DEPOSIT INTO THE TREASURY AS MISCELLANEOUS RECEIPTS OF ALL SUMS RECEIVED BY EXECUTIVE AGENCIES FOR FIRE PROTECTION SERVICES RENDERED PURSUANT TO THAT ACT, WHEREAS FUNDS HERETOFORE RECEIVED UNDER THE SUBJECT CONTRACT ARE SAID TO HAVE BEEN RETAINED AND APPLIED BY THE BUREAU OF LAND MANAGEMENT "IN BETTERING THE FACILITIES FOR DETECTION, PREVENTION AND SUPPRESSION OF FIRES ON ADJOINING STATE AND FEDERAL LANDS.'

THE SAID CONTRACT WHICH IS TERMED A "COOPERATIVE AGREEMENT" WAS MADE AND ENTERED INTO AS OF JULY 1, 1946, AND CONTINUED IN EFFECT EACH YEAR THROUGH THE FISCAL YEAR 1956 BETWEEN THE GRAZING SERVICE (SUBSEQUENTLY CONSOLIDATED INTO THE BUREAU OF LAND MANAGEMENT) AND THE STATE OF IDAHO PURSUANT TO AUTHORITY CONTAINED IN THE TAYLOR GRAZING ACT, 48 STAT. 1269, AS AMENDED, 43 U.S.C. 315, AND FOLLOWING SECTIONS, FOR THE FIRE PROTECTION OF STATE-OWNED LANDS ADJACENT TO OR INTERMINGLED WITH FEDERAL GRAZING DISTRICTS. THE EXPENDITURE AUTHORITY FOR THIS ACTIVITY WAS PROVIDED FOR BY THE INTERIOR DEPARTMENT APPROPRIATION ACT, 1947, 60 STAT. 348, 351, UNDER THE HEADING, "GRAZING SERVICE," AUTHORIZING THE USE OF CERTAIN APPROPRIATIONS FOR FIGHTING AND PREVENTING FIRES ON OR THREATENING LANDS UNDER GRAZING SERVICE ADMINISTRATION. IT IS OBSERVED THAT SIMILAR AUTHORITY WAS INCLUDED IN THE SUBSEQUENT ANNUAL SUPPLY ACTS FOR YOUR DEPARTMENT UNDER THE APPROPRIATION "MANAGEMENT OF LANDS AND RESOURCES, BUREAU OF LAND MANAGEMENT.'

UNDER THE TERMS OF THE CONTRACT THE BUREAU OF LAND MANAGEMENT AGREED TO FURNISH FIRE PROTECTION TO STATE-OWNED LANDS INTERMINGLED OR ADJACENT TO CERTAIN GRAZING DISTRICTS. IN RETURN FOR THIS SERVICE, THE STATE OF IDAHO WAS REQUIRED TO REIMBURSE THE BUREAU ON THE BASIS OF AN AGREED TO RATE PER ACRE OF STATE-OWNED LAND PROTECTED; AND IT APPEARS FROM ANOTHER ENCLOSURE RECEIVED WITH THE LETTER THAT THE COST TO THE STATE FOR SUCH SERVICES RENDERED DURING THE FISCAL YEAR 1956 WAS $13,350. IT HAS BEEN INFORMALLY LEARNED FROM REPRESENTATIVES OF THE BUREAU OF LAND MANAGEMENT THAT SUCH COLLECTIONS HAVE BEEN DEPOSITED TO THE CREDIT OF THE SPECIAL FUND ESTABLISHED BY SECTION 9 OF THE TAYLOR GRAZING ACT, AS AMENDED, 43 U.S.C. 315B, AND APPROPRIATED FOR EXPENDITURE FOR THE PURPOSE HEREINABOVE MENTIONED.

IN OUR RECENT DECISION TO YOU DATED JANUARY 6, 1956, B-126228, THE SCOPE AND INTENT OF THE CITED ACT OF MAY 27, 1955, WERE DISCUSSED AS FOLLOWS:

"THE ACT OF MAY 27, 1955, AUTHORIZES DEPARTMENTS AND AGENCIES IN THE EXECUTIVE BRANCH, CHARGED WITH THE DUTY OF PROVIDING FIRE PROTECTION FOR FEDERAL PROPERTY, TO ENTER INTO A RECIPROCAL AGREEMENT WITH ANY FIRE ORGANIZATION MAINTAINING FIRE PROTECTION FACILITIES IN THE VICINITY OF SUCH PROPERTY FOR MUTUAL AID IN FURNISHING FIRE PROTECTION FOR SUCH PROPERTY AND FOR OTHER PROPERTY FOR WHICH SUCH ORGANIZATION NORMALLY PROVIDES FIRE PROTECTION. THE ACT FURTHER PROVIDES THAT ANY SUCH AGREEMENT MAY PROVIDE FOR THE REIMBURSEMENT OF ANY PARTY FOR ALL OR ANY PART OF THE COST INCURRED BY SUCH PARTY IN FURNISHING FIRE PROTECTION FOR OR ON BEHALF OF ANY OTHER PARTY.

"* * * ALSO, THE LEGISLATIVE HISTORY THEREOF PLAINLY INDICATES THAT IT WAS ENACTED SOLELY TO SUPPLY THE STATUTORY AUTHORITY WHICH WAS CONSIDERED IN 32 COMP. GEN. 91, 95, TO BE NECESSARY FOR THE USE OF FEDERAL FUNDS FOR MUTUAL AID FIRE FIGHTING AGREEMENTS, THERETOFORE HELD UNAUTHORIZED, FOR PROTECTION OF FEDERAL OR NONFEDERAL PROPERTY. SEE SENATE REPORT 274 ON S. 1006, 84TH CONGRESS, WHICH BECAME THE ACT OF MAY 27, 1955.'

THE STATUTE--- BY ITS SPECIFIC TERMS--- AUTHORIZES ONLY RECIPROCAL AGREEMENTS ON A REIMBURSABLE OR NONREIMBURSABLE BASIS FOR MUTUAL AID IN FIRE PROTECTION AND DOES NOT AUTHORIZE THE EXPENDITURE OF FUNDS MADE AVAILABLE TO AGENCIES FOR FIRE PROTECTION OF ITS PROPERTY OR ACTIVITIES FOR PURPOSES OF PROTECTING NONFEDERAL PROPERTY UNDER AGREEMENTS NOT INVOLVING MUTUAL AID. AND THE LEGISLATIVE DIRECTION IN THE QUOTED SECTION 5 ON THE DISPOSITION OF FUNDS RECEIVED BY AGENCIES IN REIMBURSEMENT FOR FIRE PROTECTION SERVICES RELATES ONLY TO FUNDS RECEIVED ON ACCOUNT OF SERVICES RENDERED PURSUANT TO THAT STATUTE.

AS STATED BY THE ADMINISTRATIVE ASSISTANT SECRETARY, IT IS QUITE APPARENT FROM THE FOREGOING THAT THE CONTRACT IN QUESTION IS NOT RECIPROCAL IN THAT IT DOES NOT PROVIDE FOR THE MUTUAL FIRE PROTECTION BY THE STATE OF ANY FEDERAL LANDS, BUT PROTECTION ONLY BY THE FEDERAL GOVERNMENT OF STATE LANDS. MOREOVER, IT IS CLEAR THAT THE STATUTORY CONDITIONS UNDER WHICH FIRE PROTECTION SERVICES ARE AUTHORIZED BY THE TAYLOR GRAZING ACT, AS AMENDED, AND THE ACT OF MAY 27, 1955, ARE ENTIRELY DIFFERENT AND, SINCE EACH STATUTE CONTEMPLATED THE

ACCOMPLISHMENT OF A DIFFERENT PURPOSE, THEY CAN BE GIVEN EFFECT INDEPENDENTLY OF THE OTHER AND NEED NOT BE CONSTRUED AS LIMITING OR OTHERWISE AFFECTING THE OTHER.

FOR THESE REASONS, WE CONCUR WITH THE VIEW OF YOUR DEPARTMENT THAT THE CONTRACT UNDER CONSIDERATION IS NOT SUBJECT TO THE PROVISIONS OF SECTION 5 OF THE ACT OF MAY 27, 1955.