B-131367, APRIL 16, 1957, 36 COMP. GEN. 712

B-131367: Apr 16, 1957

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WHICH ARE ATTRIBUTABLE TO FEDERAL-AID HIGHWAYS (INCLUDING THOSE PORTIONS OF GENERAL ADMINISTRATIVE EXPENSES OF THE BUREAU OF PUBLIC ROADS PAYABLE FROM SUCH APPROPRIATIONS). IN HIS LETTER THE ACTING SECRETARY OF LABOR EXPRESSES THE VIEW TO THE EFFECT THAT EXPENSES IN CONNECTION WITH MAKING THE WAGE DETERMINATIONS CONSTITUTE OBLIGATIONS THAT ARE "ATTRIBUTABLE TO FEDERAL AID HIGHWAYS" AND. THE SAME CONCLUSION WAS STATED IN AN ACCOMPANYING MEMORANDUM OF LAW OF THE SOLICITOR OF YOUR DEPARTMENT. TO COVER THOSE OBLIGATIONS WHICH ARE ATTRIBUTABLE TO FEDERAL-AID HIGHWAYS. THE PARENTHETICAL STATEMENT "INCLUDING THOSE PORTIONS OF GENERAL ADMINISTRATIVE EXPENSES OF THE BUREAU OF PUBLIC ROADS PAYABLE FROM SUCH APPROPRIATIONS" MERELY EMPHASIZES THE CONGRESSIONAL INTENT THAT THE FUND IS TO BE USED TO DEFRAY THE ADMINISTRATIVE EXPENSES INCURRED BY THE BUREAU OF PUBLIC ROADS IN CARRYING OUT THE FEDERAL-AID HIGHWAY PROGRAM.

B-131367, APRIL 16, 1957, 36 COMP. GEN. 712

HIGHWAY TRUST FUND - USE FOR ADMINISTRATIVE EXPENSES - WAGE DETERMINATIONS THE LANGUAGE OF SECTION 209 (F) (1) OF THE HIGHWAY REVENUE ACT OF 1956, 23 U.S.C. 173 (F) (1), RELATING TO THE SCOPE OF THE HIGHWAY TRUST FUND DOES NOT PRECLUDE THE AVAILABILITY OF THE FUND FOR ADMINISTRATIVE EXPENSES OF THE DEPARTMENT OF LABOR IN MAKING WAGE DETERMINATIONS REQUIRED BY SECTION 115 OF THE FEDERAL-AID HIGHWAY ACT OF 1956.

TO THE SECRETARY OF LABOR, APRIL 16, 1957:

BY LETTER DATED APRIL 3, 1957, WITH ENCLOSURES, THE ACTING SECRETARY OF LABOR REQUESTED OUR ADVICE WHETHER SECTION 209 (F) (1) OF THE HIGHWAY REVENUE ACT OF 1956, 70 STAT. 399, 23 U.S.C. 173 (F) (1), AUTHORIZES THE USE OF FUNDS FROM THE " HIGHWAY TRUST FUND" FOR ADMINISTRATIVE EXPENSES OF THE DEPARTMENT OF LABOR IN MAKING WAGE DETERMINATIONS PROVIDED FOR IN SECTION 115 OF THE FEDERAL-AID HIGHWAY ACT OF 1956, 70 STAT. 385, 23 U.S.C. 166.

IN SECTION 115 OF THE FEDERAL-AID HIGHWAY ACT OF 1956, THE CONGRESS EXTENDED THE REQUIREMENTS OF THE DAVIS-BACON ACT OF AUGUST 30, 1935, AS AMENDED, 40 U.S.C. 276A TO HIGHWAY PROJECTS OF THE NATIONAL SYSTEM OF INTERSTATE HIGHWAYS. THE CONGRESS FURTHER PROVIDED THEREIN THAT THE SECRETARY OF LABOR SHALL MAKE PREDETERMINATIONS OF PREVAILING WAGE RATES, WHICH "SHALL BE SET OUT IN EACH PROJECT ADVERTISEMENT FOR BIDS AND IN EACH BID PROPOSAL FORM AND SHALL BE MADE A PART OF THE CONTRACT COVERING THE PROJECT.'

SECTION 209 OF THE HIGHWAY REVENUE ACT OF 1956, 23 U.S.C. 173, ESTABLISHED A " HIGHWAY TRUST FUND" ON THE BOOKS OF THE GOVERNMENT, AND IN SUBSECTION (F) (1) THEREOF DEFINED THE SCOPE OF ITS EXPENDITURE AVAILABILITY AS FOLLOWS:

(1) FEDERAL-AID HIGHWAY PROGRAM.--- AMOUNTS IN THE TRUST FUND SHALL BE AVAILABLE, AS PROVIDED BY APPROPRIATION ACTS, FOR MAKING EXPENDITURES AFTER JUNE 30, 1956, AND BEFORE JULY 1, 1972, TO MEET THOSE OBLIGATIONS OF THE UNITED STATES HERETOFORE OR HEREAFTER INCURRED UNDER THE FEDERAL-AID ROAD ACT APPROVED JULY 11, 1916, AS AMENDED AND SUPPLEMENTED, WHICH ARE ATTRIBUTABLE TO FEDERAL-AID HIGHWAYS (INCLUDING THOSE PORTIONS OF GENERAL ADMINISTRATIVE EXPENSES OF THE BUREAU OF PUBLIC ROADS PAYABLE FROM SUCH APPROPRIATIONS).

IN HIS LETTER THE ACTING SECRETARY OF LABOR EXPRESSES THE VIEW TO THE EFFECT THAT EXPENSES IN CONNECTION WITH MAKING THE WAGE DETERMINATIONS CONSTITUTE OBLIGATIONS THAT ARE "ATTRIBUTABLE TO FEDERAL AID HIGHWAYS" AND, THEREFORE, PROPERLY PAYABLE FROM THE HIGHWAY TRUST FUND. THE SAME CONCLUSION WAS STATED IN AN ACCOMPANYING MEMORANDUM OF LAW OF THE SOLICITOR OF YOUR DEPARTMENT.

THE QUOTED SECTION 209 (F) (1/--- BY ITS PLAIN TERMS--- MAKES AMOUNTS ESTABLISHED IN THE HIGHWAY TRUST FUND AVAILABLE, AS PROVIDED BY APPROPRIATION ACTS, FOR EXPENDITURE AFTER JUNE 30, 1956, AND BEFORE JULY 1, 1972, TO COVER THOSE OBLIGATIONS WHICH ARE ATTRIBUTABLE TO FEDERAL-AID HIGHWAYS. THE PARENTHETICAL STATEMENT "INCLUDING THOSE PORTIONS OF GENERAL ADMINISTRATIVE EXPENSES OF THE BUREAU OF PUBLIC ROADS PAYABLE FROM SUCH APPROPRIATIONS" MERELY EMPHASIZES THE CONGRESSIONAL INTENT THAT THE FUND IS TO BE USED TO DEFRAY THE ADMINISTRATIVE EXPENSES INCURRED BY THE BUREAU OF PUBLIC ROADS IN CARRYING OUT THE FEDERAL-AID HIGHWAY PROGRAM.

IN REPORTING OUT H.R. 10660 WHICH BECAME THE HIGHWAY REVENUE ACT OF 1956, IT WAS STATED IN HOUSE REPORT 2022 (PAGE 70), AND IN SENATE REPORT 2054 (PAGE 37) WITH REFERENCE TO SAID SECTION 209 (F) (1) THAT " THE EXPENDITURES REFERRED TO ARE THOSE WHICH NORMALLY HAVE BEEN PAID OUT OF THE APPROPRIATION ENTITLED , FEDERAL-AID HIGHWAYS, BUREAU OF PUBLIC ROADS, DEPARTMENT OF COMMERCE., " WHILE THIS EXPLANATION OF THE CHARACTER OF EXPENDITURES PROPERLY CHARGEABLE TO THE FUND MAY HAVE BEEN INTENDED TO OPERATE AS A RESTRICTION ON ITS AUTHORIZED USES, SUCH EXPLANATION MAY NOT BE CONSTRUED AS PRECLUDING THE CONGRESS FROM UTILIZING THE FUND FOR OTHER OR MORE EXTENDED PURPOSES IF IT CHOOSES TO DO SO. AND IT MUST BE RECOGNIZED THAT THE LATEST EXPRESSION OF THE CONGRESS IS CONTROLLING. SEE 19 COMP. GEN. 961.

IF YOUR INQUIRY IS DIRECTED TO THE QUESTION OF WHETHER A PROPOSED APPROPRIATION FROM THE HIGHWAY TRUST FUND TO THE DEPARTMENT OF LABOR TO CARRY OUT ITS DAVIS-BACON ACT FUNCTIONS IS SO AUTHORIZED BY THE ENABLING LEGISLATION AS NOT TO BE SUBJECT TO A POINT OF ORDER UNDER THE RULES OF THE RESPECTIVE HOUSES OF THE CONGRESS, THIS, OF COURSE, IS A MATTER NOT WITHIN OUR PROVINCE TO DECIDE, BUT RATHER FOR DETERMINATION BY THOSE HOUSES IN CONDUCTING THEIR PROCEEDINGS.