B-137094, NOVEMBER 26, 1958, 38 COMP. GEN. 392

B-137094: Nov 26, 1958

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IN THE ABSENCE OF EVIDENCE OF A CONGRESSIONAL INTENT THAT THE GENERAL TERMS USED IN DESIGNATING THE PURPOSES OF THE FUND WERE TO BE GIVEN A BROADER CONSTRUCTION TO EXEMPT CONSTRUCTION OF BUILDINGS FOR HELIUM ACTIVITIES FROM THE MANDATORY REQUIREMENT IN 41 U.S.C. 12. 1958: REFERENCE IS MADE TO LETTER OF AUGUST 12. IS AVAILABLE FOR THE CONSTRUCTION OF BUILDINGS. IT IS PROPOSED TO CONSTRUCT AN INDUSTRIAL TYPE BUILDING WITH RAILROAD SIDING FOR HYDROSTATIC TESTING. MAINTAINING SPECIALLY DESIGNED TANK CARS THAT ARE USED BY THE BUREAU OF MINES FOR TRANSPORTING HELIUM. IN EXPLANATION OF THE NEED FOR THE BUILDING IT IS STATED THAT THE BUREAU OF MINES OPERATES AND MAINTAINS A FLEET OF 137 TANK CARS FOR USE IN THE TRANSPORTATION OF HELIUM.

B-137094, NOVEMBER 26, 1958, 38 COMP. GEN. 392

PUBLIC BUILDINGS - CONSTRUCTION - SPECIFIC STATUTORY AUTHORITY THE EXPRESS STATUTORY AUTHORITY REQUIRED FOR THE CONSTRUCTION OF PUBLIC BUILDINGS UNDER 41 U.S.C. 12 MAY NOT BE INFERRED FROM A STATUTE WHICH ESTABLISHES A SPECIAL HELIUM PRODUCTION FUND FOR EXPENSES OF ACQUIRING, ADMINISTERING, OPERATING, MAINTAINING, AND DEVELOPING HELIUM PROPERTIES, IN THE ABSENCE OF EVIDENCE OF A CONGRESSIONAL INTENT THAT THE GENERAL TERMS USED IN DESIGNATING THE PURPOSES OF THE FUND WERE TO BE GIVEN A BROADER CONSTRUCTION TO EXEMPT CONSTRUCTION OF BUILDINGS FOR HELIUM ACTIVITIES FROM THE MANDATORY REQUIREMENT IN 41 U.S.C. 12.

TO THE SECRETARY OF THE INTERIOR, NOVEMBER 26, 1958:

REFERENCE IS MADE TO LETTER OF AUGUST 12, 1958, FROM THE ADMINISTRATIVE ASSISTANT SECRETARY, REQUESTING A DECISION AS TO WHETHER THE " SPECIAL HELIUM PRODUCTION FUND," ESTABLISHED BY SECTION 3 (C) OF THE ACT APPROVED SEPTEMBER 1, 1937, 50 STAT. 887, AS AMENDED, 50 U.S.C. 164 (C), IS AVAILABLE FOR THE CONSTRUCTION OF BUILDINGS. SPECIFICALLY, IT IS PROPOSED TO CONSTRUCT AN INDUSTRIAL TYPE BUILDING WITH RAILROAD SIDING FOR HYDROSTATIC TESTING, PAINTING, AND MAINTAINING SPECIALLY DESIGNED TANK CARS THAT ARE USED BY THE BUREAU OF MINES FOR TRANSPORTING HELIUM.

IN EXPLANATION OF THE NEED FOR THE BUILDING IT IS STATED THAT THE BUREAU OF MINES OPERATES AND MAINTAINS A FLEET OF 137 TANK CARS FOR USE IN THE TRANSPORTATION OF HELIUM, AND THAT REGULATIONS OF THE INTERSTATE COMMERCE COMMISSION (49 C.F.R. 73.31 AND 78.277), REQUIRE EACH CAR TO BE TESTED AT LEAST EVERY FIVE YEARS. THE BUREAU HAS BEEN NOTIFIED THAT THE TESTS NOW MADE BY THE DEPARTMENT OF THE NAVY FOR THE BUREAU, ON A REIMBURSABLE BASIS, AT ITS FACILITIES LOCATED AT LAKEHURST, NEW JERSEY, WILL BE DISCONTINUED ON OR BEFORE JULY 1, 1958. IT IS FURTHER STATED THAT THE ESTIMATED COST OF THE BUILDING IS $150,000 EXCLUSIVE OF THE RAILROAD SIDING AND TESTING EQUIPMENT, AND THAT IT WILL BE LOCATED AT EXCELL, TEXAS, WHICH IS A MORE CENTRALIZED LOCATION FOR ALL HELIUM PRODUCTION PLANTS.

AS AUTHORITY FOR THE CONSTRUCTION OF THE BUILDING THERE IS CITED SECTION 1 (C) OF THE CITED ACT, 50 STAT. 885, 50 U.S.C. 161 (C), WHICH AUTHORIZES THE SECRETARY OF THE INTERIOR THROUGH THE BUREAU OF MINES TO CONSTRUCT OR ACQUIRE PLANTS, WELLS, PIPELINES, COMPRESSOR STATIONS, CAMP BUILDINGS, AND OTHER FACILITIES, FOR THE PRODUCTION, STORAGE REPURIFICATION, TRANSPORTATION, AND SALE OF HELIUM AND HELIUM/BEARING GAS. ALSO, SECTION 3 (C) OF THE SAME ACT IS CITED WHICH PROVIDES:

ALL MONEYS RECEIVED UNDER THIS ACT, INCLUDING MONEYS FROM SALE OF HELIUM OR OTHER PRODUCTS RESULTING FROM HELIUM OPERATIONS * * * SHALL BE CREDITED TO A SPECIAL HELIUM-PRODUCTION FUND * * * AND THE SECRETARY OF THE INTERIOR THROUGH THE BUREAU OF MINES MAY DRAW ON SAID FUND TO PAY EXPENSES OF ACQUIRING, ADMINISTERING, OPERATING, MAINTAINING, AND DEVELOPING HELIUM PROPERTIES. AMOUNTS ACCUMULATING IN SAID FUND IN EXCESS OF AMOUNTS THE SECRETARY OF THE INTERIOR DEEMS NECESSARY TO ASSURE PAYMENT OF SUCH EXPENSES SHALL BE DEPOSITED IN THE TREASURY TO THE CREDIT OF MISCELLANEOUS RECEIPTS. * * *

SECTION 3733, REVISED STATUTES, 41 U.S.C. 12, PROVIDES THAT NO CONTRACT SHALL BE ENTERED INTO FOR THE ERECTION OF ANY PUBLIC BUILDING OR FOR ANY PUBLIC IMPROVEMENT WHICH SHALL BIND THE GOVERNMENT TO PAY A LARGER SUM OF MONEY THAN THE AMOUNT IN THE TREASURY APPROPRIATED FOR THE SPECIFIC PURPOSE. THE SPECIFIC PURPOSES FOR WHICH THE FUNDS IN QUESTION ARE MADE AVAILABLE ARE FOR "ACQUIRING, ADMINISTERING, OPERATING, MAINTAINING, AND DEVELOPING HELIUM PROPERTIES"--- NOT FOR THE CONSTRUCTION OF BUILDINGS.

IT IS RECOGNIZED THAT THE GENERAL TERMS "ACQUIRING AND DEVELOPING HELIUM PROPERTIES" AFFORD SOME BASIS FOR THE VIEW THAT THEY IMPLIEDLY AUTHORIZE USE OF THE SPECIAL FUND FOR THE CONSTRUCTION OF BUILDINGS ADMINISTRATIVELY DETERMINED ESSENTIAL TO THE DEVELOPMENT OF HELIUM PROPERTIES. HOWEVER, IN VIEW OF THE PLAIN MANDATE OF SECTION 3733, REVISED STATUTES, PROHIBITING THE CONSTRUCTION OF PUBLIC BUILDINGS UNLESS APPROPRIATIONS SPECIFICALLY PROVIDE THEREFOR--- WITH NO INDICATION ANYWHERE IN THE LEGISLATIVE HISTORY OF THE ACT ESTABLISHING THE SPECIAL FUND OF A CONGRESSIONAL INTENT TO ATTRIBUTE TO THE GENERAL TERMS A BROADENED MEANING THAT THE SPECIAL FUND BE AVAILABLE TO CONSTRUCT BUILDINGS--- WE BELIEVE THAT EXPENDITURES FOR SUCH PURPOSES MAY NOT BE INCURRED IN THE ABSENCE OF EXPRESS AUTHORITY THEREFOR.

IN FURTHER SUPPORT OF THIS VIEW, IT APPEARS THAT ALL OF THE HELIUM PRODUCTION PLANTS HERETOFORE CONSTRUCTED BY THE BUREAU OF MINES HAVE BEEN FINANCED WITH DIRECT APPROPRIATIONS MADE BY THE CONGRESS. ALSO, IT IS OBSERVED THAT IN CONSIDERING THE BILL ( H.R. 13450), WHICH BECAME THE SUPPLEMENTAL APPROPRIATION ACT, 1959, PUBLIC LAW 85-766, APPROVED AUGUST 27, 1958, 72 STAT. 864, THE HOUSE AND SENATE COMMITTEES ON APPROPRIATIONS DISALLOWED THE BUDGET REQUEST OF $375,000 FOR THE CONSTRUCTION OF AN ADMINISTRATIVE, ENGINEERING, AND SERVICE BUILDING FOR THE HELIUM ACTIVITY AT AMARILLO, TEXAS. IN EXPLANATION OF THAT ACTION, IT WAS STATED THAT THE MATTER SHOULD BE DEFERRED FOR CONSIDERATION IN CONNECTION WITH THE DEPARTMENT'S ANNUAL APPROPRIATION BILL FOR FISCAL YEAR 1960. SEE PAGE 31, HOUSE REPORT NO. 2221, AND PAGE 20, SENATE REPORT NO. 2350, BOTH 85TH CONGRESS.

IT IS EVIDENT FROM THE ACTION OF THE CONGRESS IN THIS RECENT APPROPRIATION ACT AND IN THE PRIOR APPROPRIATION ACTS, THAT ESTIMATES FOR CONSTRUCTING BUILDINGS NECESSARY TO THE HELIUM DEVELOPMENT ACTIVITIES OF THE BUREAU OF MINES HAVE BEEN INCLUDED IN THE PRESENTATIONS OF THE BUREAU OF THE BUDGET, AND THAT THE CONGRESS HAS SPECIFICALLY LEGISLATED FOR SUCH EXPENDITURES. FURTHER, THAT THE GENERAL TERMS EMPLOYED IN DESCRIBING THE AUTHORIZED USES TO BE MADE OF THE SPECIAL FUND WERE NOT INTENDED TO BE GIVEN A BROADENED MEANING SO AS TO OPERATE AS AN EXEMPTION FROM THE REQUIREMENTS OF SECTION 3733, REVISED STATUTES.

FOR THE FOREGOING REASONS AND IN SPECIFIC ANSWER TO THE QUESTION PRESENTED, YOU ARE ADVISED THAT THE SPECIAL HELIUM PRODUCTION FUND IS NOT AVAILABLE FOR THE CONSTRUCTION OF BUILDINGS IN THE ABSENCE OF EXPRESS STATUTORY AUTHORITY THEREFOR.