B-136883, AUGUST 1, 1958, 38 COMP. GEN. 93

B-136883: Aug 1, 1958

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APPROPRIATIONS - DEFICIENCIES - ANTIDEFICIENCY ACT VIOLATIONS - PRIORITY OF OBLIGATIONS WHEN CONGRESS BY ENACTMENT OF LEGISLATION DIRECTS THE TRANSFER OF AN APPROPRIATION TO ANOTHER ACCOUNT AND THERE ARE INSUFFICIENT UNOBLIGATED FUNDS CURRENTLY AVAILABLE TO TAKE CARE OF THE TRANSFER. ALTHOUGH THE QUESTION OF WHETHER TO USE OBLIGATED BUT UNEXPENDED FUNDS TO COVER THE MANDATORY TRANSFER IS PRIMARILY AN ADMINISTRATIVE ONE. IF THERE IS DOUBT AS TO THE PRIORITY OF THE OBLIGATIONS. 1958: REFERENCE IS MADE TO YOUR LETTER DATED JULY 22. 000 IS TO BE TRANSFERRED IN THE TREASURY TO THE CREDIT OF THE CROW TRIBE OF INDIANS. OF THE INDIAN TITLE TO THE LANDS REQUIRED FOR YELLOWTAIL DAM AND RESERVOIR AND THAT TITLE TO THOSE LANDS IS NOW VESTED IN THE UNITED STATES.

B-136883, AUGUST 1, 1958, 38 COMP. GEN. 93

APPROPRIATIONS - DEFICIENCIES - ANTIDEFICIENCY ACT VIOLATIONS - PRIORITY OF OBLIGATIONS WHEN CONGRESS BY ENACTMENT OF LEGISLATION DIRECTS THE TRANSFER OF AN APPROPRIATION TO ANOTHER ACCOUNT AND THERE ARE INSUFFICIENT UNOBLIGATED FUNDS CURRENTLY AVAILABLE TO TAKE CARE OF THE TRANSFER, NO VIOLATION OF THE ANTIDEFICIENCY ACT, 31 U.S.C. 665 (A), OCCURS AND, ALTHOUGH THE QUESTION OF WHETHER TO USE OBLIGATED BUT UNEXPENDED FUNDS TO COVER THE MANDATORY TRANSFER IS PRIMARILY AN ADMINISTRATIVE ONE, IF THERE IS DOUBT AS TO THE PRIORITY OF THE OBLIGATIONS, CLARIFICATION OF THE CONGRESSIONAL INTENT SHOULD BE OBTAINED.

TO THE SECRETARY OF THE INTERIOR, AUGUST 1, 1958:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 22, 1958, FROM THE ADMINISTRATIVE ASSISTANT SECRETARY OF THE INTERIOR CONCERNING A QUESTION WHICH HAS ARISEN AS A RESULT OF THE ENACTMENT OF S.J. RES. 12, APPROVED JULY 15, 1958 ( PUBLIC LAW 85-523, 72 STAT. 361).

SECTION 1 OF PUBLIC LAW 85-523, PROVIDES IN PERTINENT PART, AS FOLLOWS:

* * * THAT, FROM FUNDS APPROPRIATED TO THE DEPARTMENT OF THE INTERIOR, BUREAU OF RECLAMATION, FOR THE MISSOURI RIVER BASIN PROJECT, THERE SHALL BE TRANSFERRED IN THE TREASURY OF THE UNITED STATES TO THE CREDIT OF THE CROW TRIBE OF INDIANS, MONTANA, THE SUM OF $2,500,000. * * *

SECTION 2 THEREOF TRANSFERS TO THE UNITED STATES THE LAND FOR WHICH THE $2,500,000 IS TO BE TRANSFERRED IN THE TREASURY TO THE CREDIT OF THE CROW TRIBE OF INDIANS. YOUR DEPARTMENT SAYS THAT SECTION 2 OF THE ACT CONSTITUTES A TAKING, IN PRAESENTI, OF THE INDIAN TITLE TO THE LANDS REQUIRED FOR YELLOWTAIL DAM AND RESERVOIR AND THAT TITLE TO THOSE LANDS IS NOW VESTED IN THE UNITED STATES.

THE LETTER READS, IN PERTINENT PART, AS FOLLOWS:

* * * WITH EXCEPTIONS NOT HERE MATERIAL, THE APPROPRIATIONS FOR BUREAU OF RECLAMATION CONSTRUCTION ARE LUMP-SUM IN NATURE, WITHOUT SPECIFICATION OF PROJECTS. FROM ALLOTMENTS HERETOFORE MADE ADMINISTRATIVELY TO THE MISSOURI RIVER BASIN PROJECT OUT OF APPROPRIATED FUNDS THERE REMAINS AT PRESENT AS ESTIMATED UNOBLIGATED AMOUNT OF $1,347,100. THE ALLOTMENT OF THESE UNOBLIGATED FUNDS AS AMONG THE SEVERAL MISSOURI RIVER BASIN UNITS IS INDICATED ON THE ATTACHED TABULATION A. THE TOTAL OF ALLOTTED, UNEXPENDED FUNDS FOR THE SEVERAL MISSOURI RIVER BASIN PROJECT UNITS IS ESTIMATED AT $7,170,600 AND IS SHOWN ON THE ATTACHED TABULATION B. AS WILL BE NOTED, OUT OF APPROPRIATED FUNDS HERETOFORE ADMINISTRATIVELY ALLOTTED TO THE MISSOURI RIVER BASIN PROJECT, THE UNOBLIGATED BALANCE IS LESS THAN $2,500,000, WHILE THE UNEXPENDED BALANCE SUBSTANTIALLY EXCEEDS $2,500,000. THE UNOBLIGATED BALANCE HAS, IN ACCORDANCE WITH USUAL PRACTICE, BEEN PROGRAMMED FOR OBLIGATION AMONG THE SEVERAL MISSOURI RIVER BASIN PROJECT UNITS.

IN VIEW OF THE FOREGOING OUR DECISION IS REQUESTED AS TO WHETHER THE MANDATORY TRANSFER OF FUNDS PROVIDED FOR BY SECTION 1 OF PUBLIC LAW 85 523 IS TO BE LIMITED AT THIS TIME PENDING FURTHER APPROPRIATIONS, TO THE ESTIMATED UNOBLIGATED SUM OF $1,347,100 OR WHETHER THE LANGUAGE IS TO BE READ AS CALLING FOR THE IMMEDIATE TRANSFER OF THE ENTIRE $2,500,000, WHICH WOULD, TO THE EXTENT THAT IT EXCEEDS THE UNOBLIGATED BALANCE, REQUIRE THE TRANSFER OF OBLIGATED BUT UNEXPENDED FUNDS.

IN CONNECTION WITH THE MATTER OUR ATTENTION IS DIRECTED TO THE FOLLOWING PROVISION INSERTED BY THE SENATE APPROPRIATIONS COMMITTEE IN TITLE II OF THE PUBLIC WORKS APPROPRIATION BILL FOR FISCAL YEAR 1959 ( H.R. 12858):

PROVIDED FURTHER, THAT NO PART OF THE FUNDS HEREIN APPROPRIATED SHALL BE AVAILABLE FOR PAYMENTS (OR TRANSFERS) AUTHORIZED IN S.J. RES. 12 OR SIMILAR LEGISLATION. ( ITALICS SUPPLIED)

WE ARE ADVISED THAT THE BILL AS PASSED BY THE SENATE CONTAINED THE ABOVE PROVISION, BUT AS TO THE DATE OF YOUR DEPARTMENT'S LETTER THE BILL WAS IN CONFERENCE.

THE LEGISLATIVE HISTORY OF PUBLIC LAW 85-523 DISCLOSES THAT THE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS WAS INFORMED THAT THE TRANSFER OF FUNDS NECESSARY TO PAY FOR THE LAND IN QUESTION COULD BE ACHIEVED WITHOUT THE APPROPRIATION OF ADDITIONAL FUNDS. SEE PAGE 23, SENATE REPORT NO. 216 (DATED APRIL 8, 1957, ON S.J. RES. 12). THIS REPORT CONTAINS THE FOLLOWING STATEMENT:

* * * INFORMATION BEFORE THE HOUSE APPROPRIATIONS COMMITTEE ON THE STATUS OF UNOBLIGATED OR CARRY-OVER FUNDS FOR THE MISSOURI RIVER BASIN PROJECT SHOWS THAT AS OF JUNE 30, 1957, THERE WOULD BE UNOBLIGATED OF MISSOURI RIVER BASIN APPROPRIATIONS IN EXCESS OF $5 MILLION TO $6.5 MILLION OR MORE THAN SUFFICIENT TO PERMIT THE TRANSFER OF THE REQUIRED AMOUNT TO THE CREDIT OF THE CROW TRIBE WITHOUT AN ADDITIONAL APPROPRIATION FOR THIS PURPOSE.

UNDER THOSE CIRCUMSTANCES, THE $5 MILLION WILL ADD NO BURDEN ON THE 1958 APPROPRIATIONS FOR THE RECLAMATION-1INTERIOR SECTION OF THE PUBLIC WORKS APPROPRIATION BILL NOW UNDER CONSIDERATION.

THUS, IT APPEARS THAT THE CONGRESS WAS UNDER THE IMPRESSION THAT THERE WERE SUFFICIENT UNOBLIGATED FUNDS TO TAKE CARE OF THE TRANSFER. HOWEVER, UPON ENACTMENT OF PUBLIC LAW 85-523, THE AMOUNT DIRECTED IN SECTION 1 TO BE TRANSFERRED IN THE TREASURY EXCEEDED THE UNOBLIGATED BALANCE AVAILABLE IN THE APPROPRIATION. BE THAT AS IT MAY, THE STATUTORY DIRECTION FOR THE TRANSFER OF $2,500,000 AUTHORIZED THE OBLIGATION AGAINST THE APPLICABLE APPROPRIATION IN THAT AMOUNT. THE FACT THAT SAID OBLIGATION TOGETHER WITH OTHER DULY AUTHORIZED OBLIGATIONS PREVIOUSLY INCURRED EXCEED THE AMOUNT APPROPRIATED FOR SUCH PURPOSES DOES NOT CONSTITUTE A VIOLATION OF THE ANTIDEFICIENCY ACT, 31 U.S.C. 665 (A), SINCE THEY WERE AUTHORIZED BY LAW. IN THE MEANTIME, THE INSUFFICIENCY OF FUNDS RAISES THE QUESTION AS TO WHICH OBLIGATION SHOULD BE ACCORDED PRIORITY IN LIQUIDATION THEREOF. THE ABSENCE OF STATUTORY PROVISION OTHERWISE, THE QUESTION IS PRIMARILY FOR DETERMINATION ADMINISTRATIVELY. HOWEVER, IN VIEW OF THE FACTS IN THIS CASE, YOU MAY WISH TO SECURE A CLARIFICATION OF THE CONGRESSIONAL INTENT BEFORE PROCEEDING IN THE MATTER.