B-145153, FEB. 18, 1966, 45 COMP. GEN. 508

B-145153: Feb 18, 1966

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1966: THIS IS IN REPLY TO YOUR LETTER OF JANUARY 14. IS TO BE CONSIDERED AS AVAILABLE FOR OBLIGATION ON AN ANNUAL OR ON A NO-YEAR BASIS. 1966" WAS ESTABLISHED TO ACCOUNT FOR THE FUNDS APPROPRIATED BY THE INDEPENDENT OFFICES APPROPRIATION ACT. AUTHORITY FOR THIS REQUEST WAS CITED AS SECTION 1001 OF THE HOUSING ACT OF 1964. THE FOREGOING REQUEST WAS DENIED BY THE TREASURY DEPARTMENT IN THE ASSISTANT DEPUTY COMMISSIONER'S LETTER DATED OCTOBER 12. FOR THE STATED REASON THAT SINCE THERE IS NO TIE-IN LANGUAGE BETWEEN THE AUTHORIZING ACT AND THE CURRENT APPROPRIATION. THE TREASURY DEPARTMENT WAS AGAIN REQUESTED TO ESTABLISH THE APPROPRIATION ON A NO-YEAR AVAILABILITY BASIS. WAS CITED AND THE VIEW ADVANCED THAT THE PRINCIPLE UNDERLYING THAT DECISION WAS APPLICABLE TO THE PRESENT CASE.

B-145153, FEB. 18, 1966, 45 COMP. GEN. 508

APPROPRIATIONS - FISCAL YEAR - AVAILABILITY BEYOND - AUTHORIZATION V. APPROPRIATION THE FUNDS FOR "OPEN SPACE LAND GRANTS" PROVIDED BY THE INDEPENDENT OFFICES APPROPRIATION ACT, 1966, WHERE THE SUPPLEMENTAL APPROPRIATION ACT, 1966, AUTHORIZES AN "ADDITIONAL AMOUNT" FOR THE PROGRAM "TO REMAIN AVAILABLE UNTIL EXPENDED," AND THE APPROPRIATION AUTHORITY IN SECTION 702 (B) OF THE HOUSING ACT, 1961, PROVIDES THAT APPROPRIATED FUNDS SHALL BE AVAILABLE UNTIL EXPENDED, MAY NOT BE ESTABLISHED ON A "NO YEAR" BASIS, NEITHER THE SUPPLEMENTAL APPROPRIATION REAFFIRMING THE CONGRESSIONAL INTENT EXPRESSED IN THE HOUSING ACT, NOR THE REGULAR APPROPRIATION CONTAINING TIE-IN LANGUAGE WITH THAT AUTHORIZING ACT TO SATISFY THE REQUIREMENTS OF 31 U.S.C. 718 PROVIDING THAT NO SPECIFIC OR INDEFINITE APPROPRIATION IN A REGULAR ANNUAL APPROPRIATION ACT SHALL BE CONSTRUED TO BE PERMANENT OR AVAILABLE CONTINUOUSLY WITHOUT REFERENCE TO A FISCAL YEAR, WITH CERTAIN NAMED EXCEPTIONS, UNLESS EXPRESSLY SO PROVIDED; THEREFORE, THE EFFECT OF THE WORDING "ADDITIONAL" AND "TO REMAIN AVAILABLE UNTIL EXPENDED" IN THE SUPPLEMENTAL APPROPRIATION ACT DOES NOT OPERATE TO AMEND THE STATUS OF THE FISCAL YEAR FUNDS PROVIDED FOR "OPEN SPACE LAND GRANTS" BY THE INDEPENDENT OFFICES APPROPRIATION ACT, 1966.

TO THE SECRETARY OF HOUSING AND URBAN DEVELOPMENT, FEBRUARY 18, 1966:

THIS IS IN REPLY TO YOUR LETTER OF JANUARY 14, 1966, AND ENCLOSURES, REQUESTING A DECISION ON THE QUESTION OF WHETHER THE APPROPRIATION FOR "OPEN SPACE LAND GRANTS" IN THE INDEPENDENT OFFICES APPROPRIATION ACT, 1966, APPROVED AUGUST 16, 1965, PUBLIC LAW 89-128, 79 STAT. 520, 532, IS TO BE CONSIDERED AS AVAILABLE FOR OBLIGATION ON AN ANNUAL OR ON A NO-YEAR BASIS.

THE INDEPENDENT OFFICES APPROPRIATION ACT, 1966, MAKING, IN THE TERMS OF ITS ENACTING CLAUSE, APPROPRIATIONS FOR THE FISCAL YEAR ENDING JUNE 30, 1966, PROVIDES UNDER THE HEADING OPEN SPACE LAND GRANTS AT 79 STAT. 532:

FOR EXPENSES IN CONNECTION WITH GRANTS TO AID IN THE ACQUISITION OF OPEN- SPACE LAND OR INTERESTS THEREIN, AND WITH THE PROVISION OF TECHNICAL ASSISTANCE TO STATE AND LOCAL PUBLIC BODIES (INCLUDING THE UNDERTAKING OF STUDIES AND PUBLICATION OF INFORMATION), $22,500,000: PROVIDED, THAT NOT TO EXCEED $350,000 MAY BE USED FOR ADMINISTRATIVE EXPENSES AND TECHNICAL ASSISTANCE, AND NO PART OF THIS APPROPRIATION SHALL BE USED FOR ADMINISTRATIVE EXPENSES IN CONNECTION WITH GRANTS REQUIRING PAYMENTS IN EXCESS OF THE AMOUNT HEREIN APPROPRIATED THEREFOR.

THE SUPPLEMENTAL APPROPRIATION ACT, 1966, APPROVED OCTOBER 31, 1965, PUBLIC LAW 89-309, 79 STAT. 1133, MAKING, IN THE TERMS OF ITS ENACTING CLAUSE, SUPPLEMENTAL APPROPRIATIONS FOR THE FISCAL YEAR ENDING JUNE 30, 1966, PROVIDES IN SECTION 1201, 79 STAT. 1153, THEREOF:

NO PART OF ANY APPROPRIATION CONTAINED IN THIS ACT SHALL REMAIN AVAILABLE FOR OBLIGATION BEYOND THE CURRENT FISCAL YEAR UNLESS EXPRESSLY SO PROVIDED HEREIN.

THE APPROPRIATION IN THAT ACT UNDER THE HEADING OPEN SPACE LAND GRANTS PROVIDES (79 STAT. 136):

FOR AN ADDITIONAL AMOUNT FOR "OPEN SPACE LAND GRANTS," $26,975,000, TO REMAIN AVAILABLE UNTIL EXPENDED: PROVIDED, THAT THIS APPROPRIATION SHALL BE AVAILABLE FOR GRANTS AS AUTHORIZED BY TITLE VII OF THE HOUSING ACT OF 1961, AS AMENDED (42 U.S.C. 1500): PROVIDED FURTHER, THAT NOT TO EXCEED $125,000 OF THIS APPROPRIATION MAY BE USED FOR ADMINISTRATIVE EXPENSES AND TECHNICAL ASSISTANCE, AND NO PART OF THIS APPROPRIATION SHALL BE USED FOR ADMINISTRATIVE EXPENSES IN CONNECTION WITH GRANTS REQUIRING PAYMENTS IN EXCESS OF THE AMOUNT HEREIN APPROPRIATED THEREFOR.

THE FISCAL YEAR APPROPRIATION ACCOUNT "8660117 OPEN SPACE LAND GRANTS, OFFICE OF THE ADMINISTRATOR, HOUSING AND HOME FINANCE AGENCY, 1966" WAS ESTABLISHED TO ACCOUNT FOR THE FUNDS APPROPRIATED BY THE INDEPENDENT OFFICES APPROPRIATION ACT, 1966.

BY LETTER DISPATCHED ON SEPTEMBER 23, 1965, MR. H. J. DAMMEYER, DIRECTOR, DIVISION OF FINANCE AND ACCOUNTS OF YOUR OFFICE REQUESTED THE TREASURY DEPARTMENT TO MAKE THE ABOVE-APPROPRIATED FUNDS AVAILABLE ON A NO-YEAR BASIS. AUTHORITY FOR THIS REQUEST WAS CITED AS SECTION 1001 OF THE HOUSING ACT OF 1964, PUBLIC LAW 88-560, APPROVED SEPTEMBER 2, 1964, 78 STAT. 769, 806, 42 U.S.C. 1500A, WHICH AMENDED THE APPROPRIATION AUTHORIZATION FOR THE OPEN SPACE LAND GRANT PROGRAM AS CONTAINED IN SECTION 702 (B) OF THE HOUSING ACT OF 1961, PUBLIC LAW 87 70, APPROVED JUNE 30, 1961, 75 STAT. 184, TO PROVIDE THAT "ALL FUNDS SO APPROPRIATED SHALL REMAIN AVAILABLE UNTIL EXPENDED.'

THE FOREGOING REQUEST WAS DENIED BY THE TREASURY DEPARTMENT IN THE ASSISTANT DEPUTY COMMISSIONER'S LETTER DATED OCTOBER 12, 1965, FOR THE STATED REASON THAT SINCE THERE IS NO TIE-IN LANGUAGE BETWEEN THE AUTHORIZING ACT AND THE CURRENT APPROPRIATION, THE APPROPRIATION MUST BE ESTABLISHED IN ACCORDANCE WITH ITS OWN TERMS. ON NOVEMBER 19, 1965, THE TREASURY DEPARTMENT WAS AGAIN REQUESTED TO ESTABLISH THE APPROPRIATION ON A NO-YEAR AVAILABILITY BASIS. IN MAKING THIS REQUEST THE DECISION OF OUR OFFICE DATED NOVEMBER 5, 1965, 45 COMP. GEN. 236, TO YOU, CONCERNING THE APPROPRIATION FOR LOANS UNDER THE URBAN MASS TRANSPORTATION ACT OF 1964, WAS CITED AND THE VIEW ADVANCED THAT THE PRINCIPLE UNDERLYING THAT DECISION WAS APPLICABLE TO THE PRESENT CASE. ADDITIONALLY, IT WAS SUBMITTED THAT THE ACTION TAKEN IN THE SUPPLEMENTAL APPROPRIATION ACT, 1966, AS QUOTED ABOVE, WAS A REAFFIRMATION OF THE INTENT OF CONGRESS AS EXPRESSED IN THE AUTHORIZING LEGISLATION THAT FUNDS APPROPRIATED FOR GRANTS AUTHORIZED BY TITLE VII OF THE HOUSING ACT OF 1961, AS AMENDED, SHOULD REMAIN AVAILABLE UNTIL EXPENDED. THE TREASURY DEPARTMENT, BY LETTER DATED JANUARY 5, 1966, ADVISED YOUR OFFICE THAT IT DID NOT AGREE WITH THE POSITION TAKEN AND SUGGESTED THAT FURTHER CLARIFICATION BE OBTAINED FROM OUR OFFICE.

SECTION 7 OF THE ACT OF AUGUST 24, 1912, AS AMENDED, 31 U.S.C. 718, PROVIDES:

NO SPECIFIC OR INDEFINITE APPROPRIATION MADE SUBSEQUENT TO AUGUST 24, 1912, 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 ONE OF THE FOLLOWING FOUR CLASSES: "RIVERS AND HARBORS," "LIGHTHOUSES," "PUBLIC BUILDINGS," AND "PAY OF THE NAVY AND MARINE CORPS," LAST SPECIFICALLY NAMED IN AND EXCEPTED FROM THE OPERATION OF THE PROVISIONS OF SECTION 713 OF THIS TITLE, 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.

THE DECISION OF NOVEMBER 5, 1965, 45 COMP. GEN. 236, CONCERNED APPROPRIATION LANGUAGE WHICH SPECIFICALLY REFERRED TO THE AUTHORIZING LEGISLATION, AND WHERE SUCH IS THE CASE THE ACCOUNTING OFFICERS OF THE GOVERNMENT HAVE LONG CONSIDERED, IN THE ABSENCE OF LEGISLATIVE HISTORY TO THE CONTRARY, SUCH APPROPRIATION AS, IN EFFECT, INCORPORATING BY REFERENCE THE PROVISIONS OF THE AUTHORIZATION ACT INTO THE PROVISIONS OF THE APPROPRIATION LANGUAGE, THUS SATISFYING THE REQUIREMENTS OF 31 U.S.C. 718. HOWEVER, THE APPROPRIATION HERE UNDER CONSIDERATION DOES NOT INCORPORATE BY SPECIFIC REFERENCE THE PROVISIONS OF THE AUTHORIZATION ACT AND HENCE NO JUSTIFIABLE BASIS EXISTS FOR REACHING THE CONCLUSION THAT THE APPROPRIATION HAS A PERIOD OF AVAILABILITY OTHER THAN THAT PROVIDED BY THE APPROPRIATION ACT. WE HAVE NOT OVERLOOKED THE SUGGESTION IN MR. DAMMEYER'S LETTER OF NOVEMBER 19, 1965, THAT THE CONTROLLING FACT OF THE RULE ABOVE ENUNCIATED IS THAT THE LEGISLATIVE HISTORY ESTABLISHES--- AS CLEARLY AS IF SPECIFIC REFERENCE WERE SO INCLUDED---THAT THE APPROPRIATION WAS SOUGHT AND MADE SPECIFICALLY UNDER THE AUTHORIZATION OF TITLE VII OF THE HOUSING ACT OF 1961, AS AMENDED, AND APPARENTLY THAT SINCE THE APPROPRIATION IS CLEARLY FOR THAT PURPOSE THE AVAILABILITY LANGUAGE OF THE AUTHORIZATION ACT APPLIES. THE PROVISIONS OF 31 U.S.C. 718 DO NOT PERMIT SUCH CONSIDERATIONS FOR THE PURPOSE OF EXTENDING THE FISCAL YEAR AVAILABILITY OF APPROPRIATED FUNDS. ACCORDINGLY, YOU ARE ADVISED THAT WE CONCUR IN THE VIEW EXPRESSED BY THE TREASURY DEPARTMENT THAT THE EFFECT OF THE WORDING "ADDITIONAL" AND "TO REMAIN AVAILABLE UNTIL EXPENDED" IN THE SUPPLEMENTAL APPROPRIATION ACT, 1966, DOES NOT OPERATE TO AMEND THE STATUS OF THE FUNDS PROVIDED FOR "OPEN SPACE LAND GRANTS" BY THE INDEPENDENT OFFICES APPROPRIATION ACT, 1966.