B-133545, OCTOBER 15, 1957, 37 COMP. GEN. 246

B-133545: Oct 15, 1957

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REPAIR OF BUILDINGS MAY NOT BE REGARDED AS APPROPRIATIONS WHICH ARE SEPARABLE SO THAT THE AMOUNT FOR CONSTRUCTION COULD BE ESTABLISHED ON A NO-YEAR BASIS AND CONSIDERED AVAILABLE CONTINUOUSLY WITHOUT REFERENCE TO THE FISCAL YEAR PURSUANT TO 31 U.S.C. 682 AND 718. " WHICH ARE LIMITED FOR CONSTRUCTION OF CERTAIN BUILDINGS. IS THE AMOUNT OF $49. THIS LIMITATION WAS INCREASED TO $1. - WAS MADE IN TITLE I OF THE DEPARTMENT OF AGRICULTURE AND FARM CREDIT ADMINISTRATION APPROPRIATION ACT. * * THE FISCAL ASSISTANT SECRETARY SAYS IN HIS LETTER THAT WHEN AN APPROPRIATION IS MADE TO ACCOMPLISH VARIOUS OBJECTS OF EXPENDITURE AND IT INCLUDES A LIMITATION ON THE AMOUNT THAT MAY BE EXPENDED FOR ONE OR MORE OF THE OBJECTS.

B-133545, OCTOBER 15, 1957, 37 COMP. GEN. 246

APPROPRIATIONS - PUBLIC BUILDINGS - CONSTRUCTION, REPAIRS, ETC. - AVAILABILITY BEYOND FISCAL YEAR ANNUAL SALARIES AND EXPENSES APPROPRIATIONS FOR AGRICULTURAL RESEARCH SERVICE WHICH CONTAIN A SPECIFIC LIMITATION ON THE AMOUNT AVAILABLE FOR CONSTRUCTION, ALTERATION, AND REPAIR OF BUILDINGS MAY NOT BE REGARDED AS APPROPRIATIONS WHICH ARE SEPARABLE SO THAT THE AMOUNT FOR CONSTRUCTION COULD BE ESTABLISHED ON A NO-YEAR BASIS AND CONSIDERED AVAILABLE CONTINUOUSLY WITHOUT REFERENCE TO THE FISCAL YEAR PURSUANT TO 31 U.S.C. 682 AND 718.

TO THE SECRETARY OF THE TREASURY, OCTOBER 15, 1957:

ON AUGUST 19, 1957, THE FISCAL ASSISTANT SECRETARY OF THE TREASURY REQUESTED OUR DECISION CONCERNING THE PERIOD OF AVAILABILITY OF THAT PART OF THE APPROPRIATIONS MADE TO THE DEPARTMENT OF AGRICULTURE IN THE ANNUAL APPROPRIATION ACTS FOR THE FISCAL YEARS 1957 AND 1958 FOR " SALARIES AND EXPENSES, AGRICULTURAL RESEARCH SERVICE," WHICH ARE LIMITED FOR CONSTRUCTION OF CERTAIN BUILDINGS.

THE APPROPRIATION AS MADE BY TITLE I OF THE DEPARTMENT OF AGRICULTURE AND FARM CREDIT ADMINISTRATION APPROPRIATION ACT, 1957, PUBLIC LAW 554, APPROVED JUNE 4, 1956, 70 STAT. 229, 5 U.S.C. 568A, IS THE AMOUNT OF $49,972,000 WITH THE LIMITATION HERE UNDER CONSIDERATION "* * * NOT TO EXCEED $1,850,000 SHALL BE AVAILABLE FOR CONSTRUCTION OF BUILDINGS * * *.' THIS LIMITATION WAS INCREASED TO $1,916,000 BY THE THIRD SUPPLEMENTAL APPROPRIATION ACT, 1957, PUBLIC LAW 85-58, APPROVED JUNE 21, 1957, 71 STAT. 176. THE APPROPRIATION FOR THE NEXT FISCAL YEAR--- 1958--- WAS MADE IN TITLE I OF THE DEPARTMENT OF AGRICULTURE AND FARM CREDIT ADMINISTRATION APPROPRIATION ACT, 1958, PUBLIC LAW 85 118, APPROVED AUGUST 2, 1957, 71 STAT. 329, IN THE SUM OF $57,794,890 SUBJECT TO THE LIMITATION "* * * $1,955,000 FOR THE CONSTRUCTION, ALTERATION, AND REPAIR OF BUILDINGS, * *

THE FISCAL ASSISTANT SECRETARY SAYS IN HIS LETTER THAT WHEN AN APPROPRIATION IS MADE TO ACCOMPLISH VARIOUS OBJECTS OF EXPENDITURE AND IT INCLUDES A LIMITATION ON THE AMOUNT THAT MAY BE EXPENDED FOR ONE OR MORE OF THE OBJECTS, SUCH AS ARE HERE INVOLVED, THE PRACTICE OF THE TREASURY DEPARTMENT, OVER A PERIOD OF MANY YEARS, IS TO ESTABLISH THE TOTAL AMOUNT OF THE APPROPRIATION IN A SINGLE APPROPRIATION ACCOUNT, THAT IS, A SEPARATE ACCOUNT IS NOT ESTABLISHED FOR A PARTICULAR LIMITATION. FURTHER SAYS THAT UNLESS THE ENTIRE APPROPRIATION IS MADE FOR CONSTRUCTION OF PUBLIC BUILDINGS, OR THE LANGUAGE OF THE APPROPRIATION EXPRESSLY PROVIDES FOR INDEFINITE PERIOD OF AVAILABILITY, THE APPROPRIATION IS ESTABLISHED AS AN ANNUAL APPROPRIATION PURSUANT TO THE TERMS OF 31 U.S.C. 718. IN LINE WITH THIS PRACTICE AND PURSUANT TO TITLE 7, CHAPTER 1000 OF GAO POLICY AND PROCEDURES MANUAL FOR GUIDANCE OF FEDERAL AGENCIES, THE TREASURY DEPARTMENT ESTABLISHED THE CITED APPROPRIATIONS MADE FOR " SALARIES AND EXPENSES, AGRICULTURAL RESEARCH SERVICE" IN ANNUAL APPROPRIATION ACCOUNTS FOR THE RESPECTIVE FISCAL YEARS 1957 AND 1958.

THERE WAS ENCLOSED WITH THE FISCAL ASSISTANT SECRETARY'S LETTER A COPY OF A LETTER DATED JULY 17, 1957, FROM THE DIRECTOR OF FINANCE, DEPARTMENT OF AGRICULTURE, TO THE COMMISSIONER, BUREAU OF ACCOUNTS, TREASURY DEPARTMENT, REQUESTING THAT FUNDS PROVIDED IN THESE ANNUAL APPROPRIATION ACTS FOR THE CONSTRUCTION OF MAJOR BUILDINGS FOR THE AGRICULTURAL RESEARCH SERVICE, UNDER A SPECIFIC LIMITATION THEREFOR, BE ESTABLISHED UNDER A NO-YEAR APPROPRIATION ACCOUNT. IN SUPPORT OF THIS REQUEST THE LETTER POINTS OUT THAT THE FUNDS CARRIED UNDER THE SPECIFIC LIMITATIONS ARE JUSTIFIED THROUGHOUT THE BUDGETARY PROCESS ON THE BASIS OF SPECIFIC STRUCTURES THAT ARE PERMANENT PUBLIC BUILDINGS, AND REFERS TO THE PROVISIONS OF 31 U.S.C. 682 AND 718, WHICH MAKE APPROPRIATIONS FOR PUBLIC BUILDINGS AVAILABLE WITHOUT REGARD TO FISCAL YEAR LIMITATION. ALSO, THE LETTER CITES THAT PART OF OUR DECISION DATED MAY 28, 1957, B-131811, 36 COMP. GEN. 790, 794, TO THE SECRETARY OF HEALTH, EDUCATION AND WELFARE, WHEREIN WE HELD THAT THE APPROPRIATION MADE IN THE SECOND SUPPLEMENTAL APPROPRIATION ACT, 1957, PUBLIC LAW 855, APPROVED JULY 31, 1956, 70 STAT. 769, FOR CONSTRUCTION OF ANIMAL QUARTERS FOR THE NATIONAL INSTITUTES OF HEALTH CONSTITUTED A PUBLIC BUILDING APPROPRIATION AND, THEREFORE, SHOULD BE REESTABLISHED IN A NO YEAR ACCOUNT.

IN VIEW OF THE CONTENTION OF THE DIRECTOR OF FINANCE, DEPARTMENT OF AGRICULTURE, IN THIS MATTER, OUR DECISION IS REQUESTED ON THE FOLLOWING QUESTIONS:

1. DO THE PROVISIONS OF 31 U.S.C. 682 AND 31 U.S.C. 718 APPLY WITH RESPECT TO EITHER ONE OR BOTH OF THE APPROPRIATION LIMITATION PROVISOS CITED ABOVE THUS MAKING THE APPLICABLE FUNDS AVAILABLE UNTIL EXPENDED?

2. IF THE ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE, SHOULD AN EXCEPTION HAVE BEEN MADE TO GENERAL REGULATIONS NO. 84, WITH RESPECT TO ESTABLISHING THE ANNUAL APPROPRIATION ACCOUNT SYMBOLS AND TITLES AND A SEPARATE ACCOUNT SYMBOL AND TITLE ESTABLISHED FOR THE LIMITATION ITEMS?

3. IF A SEPARATE ACCOUNT SHOULD HAVE BEEN ESTABLISHED FOR THE LIMITATION ITEMS, ON WHAT BASIS WOULD THE TREASURY DEPARTMENT DETERMINE THE AMOUNTS TO BE INCLUDED IN THE WARRANTS FOR CREDIT TO THE SEPARATE ACCOUNT?

4. LIMITATION LANGUAGE SIMILAR TO THAT IN THE 1957 APPROPRIATION ACT HAS BEEN INCLUDED IN APPROPRIATION ACTS FOR PRIOR YEARS. IF A SEPARATE ACCOUNT SHOULD BE ESTABLISHED, WHAT ACTION SHOULD BE TAKEN WITH RESPECT TO AVAILABLE BALANCES, IF ANY, OF SUCH PRIOR YEAR APPROPRIATION LIMITATIONS?

SECTION 7 OF THE ACT OF AUGUST 24, 1912, 37 STAT. 487, AS AMENDED BY SECTION 6 OF THE ACT OF MARCH 3, 1919, 40 STAT. 1309, 31 U.S.C. 718, PROVIDES THAT NO SPECIFIC OR INDEFINITE APPROPRIATION MADE IN ANY REGULAR ANNUAL APPROPRIATION ACT SHALL BE CONSTRUED TO BE PERMANENT OR AVAILABLE CONTINUOUSLY WITHOUT REFERENCE TO A FISCAL YEAR UNLESS IT BELONGS TO CERTAIN CLASSES THEREIN SPECIFIED, INCLUDING PUBLIC BUILDINGS, OR UNLESS IT IS MADE IN TERMS EXPRESSLY PROVIDING THAT IT SHALL CONTINUE AVAILABLE BEYOND THE FISCAL YEAR FOR WHICH THE APPROPRIATION ACT IN WHICH IT IS CONTAINED MAKES PROVISION.

SECTION 1 OF THE ACT OF JUNE 23, 1874, 18 STAT. 275, 31 U.S.C. 682, READS AS FOLLOWS:

ALL MONEYS APPROPRIATED FOR THE CONSTRUCTION OF PUBLIC BUILDINGS SHALL REMAIN AVAILABLE UNTIL THE COMPLETION OF THE WORK FOR WHICH THEY ARE, OR MAY BE, APPROPRIATED; AND UPON THE FINAL COMPLETION OF EACH OR ANY OF SAID BUILDINGS, AND THE PAYMENT OF ALL OUTSTANDING LIABILITIES THEREFOR, THE BALANCE OR BALANCES REMAINING SHALL BE IMMEDIATELY COVERED INTO THE TREASURY.

THE APPROPRIATIONS UNDER CONSIDERATION ARE CONTAINED IN ANNUAL APPROPRIATION ACTS FOR THE DEPARTMENT OF AGRICULTURE. THEY CLEARLY ARE NOT APPROPRIATIONS FOR PUBLIC BUILDINGS WITHIN THE TERMS OF 31 U.S.C. 682 AND 718, BUT FOR SALARIES AND EXPENSES NECESSARY TO PERFORM CERTAIN AGRICULTURAL RESEARCH, ETC., EVIDENTLY FOR ACCOMPLISHMENT DURING THE FISCAL YEAR FOR WHICH EACH APPROPRIATION WAS MADE.

WHILE THE APPROPRIATIONS CONTAIN A LIMITATION UPON THE AMOUNT THAT MAY BE EXPENDED TO CONSTRUCT MAJOR BUILDINGS SUCH LIMITING AMOUNTS ARE NOT SEPARABLE FROM THE TOTAL AMOUNTS OF THE APPROPRIATIONS, THAT IS, THEY CAN NOT, WITH PROPRIETY, BE WITHDRAWN THEREFROM AND ESTABLISHED IN A SEPARATE APPROPRIATION ACCOUNT. THE GENERAL RULE IN SUCH CASES IS THAT THE LIMITATION ITEM IS SUBJECT TO THE SAME FISCAL YEAR LIMITATION ATTACHING TO THE PARENT APPROPRIATION AS A WHOLE UNLESS, OF COURSE, THE LIMITATION IS SPECIFICALLY EXEMPTED THEREFROM IN THE APPROPRIATION ACT.

REGARDING THE REFERENCE IN THE LETTER OF JULY 17 TO OUR DECISION DATED MAY 28, APPARENTLY AS A BASIS TO ESTABLISH THE LIMITATIONS IN A SEPARATE ACCOUNT WITH NO-YEAR AVAILABILITY, IT IS PLAINLY EVIDENT THAT THE DECISION CONSIDERED A SPECIFIC APPROPRIATION FOR THE CONSTRUCTION OF A PUBLIC BUILDING--- AS DISTINGUISHED FROM SALARIES AND EXPENSES APPROPRIATIONS, SUCH AS HERE INVOLVED--- AND THAT THERE WAS NOTHING SAID IN THE DECISION TO MODIFY OR CHANGE THE WELL-ESTABLISHED RULES OF CONSTRUCTION PERTAINING TO THE PERIOD OF AVAILABILITY OF APPROPRIATIONS. HENCE, THAT DECISION HAS NO APPLICATION HERE.

SINCE THERE IS NO AUTHORITY UNDER THE PROVISIONS OF 31 U.S.C. 682, AND 718, FOR CONSIDERING THE ANNUAL APPROPRIATIONS FOR " SALARIES AND EXPENSES, AGRICULTURAL RESEARCH SERVICE" AS NO-YEAR APPROPRIATIONS AVAILABLE UNTIL EXPENDED, NO EXCEPTION CAN BE MADE REGARDING THE LIMITATION ITEMS HERE IN QUESTION. YOUR FIRST QUESTION, THEREFORE, IS ANSWERED IN THE NEGATIVE, MAKING IT UNNECESSARY TO ANSWER THE REMAINING QUERIES.