B-145276, NOV. 5, 1965, 45 COMP. GEN. 236

B-145276: Nov 5, 1965

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YOU REQUESTED OUR OPINION CONCERNING WHETHER CERTAIN APPROPRIATIONS FOR THE MAKING OF URBAN MASS TRANSPORTATION LOANS ARE TO BE CONSTRUED AS ANNUAL APPROPRIATIONS EXPIRING FOR PURPOSES OF OBLIGATION ON JUNE 30 OF THE FISCAL YEARS FOR WHICH THEY WERE MADE OR WHETHER THEY ARE NO-YEAR APPROPRIATIONS AVAILABLE FOR OBLIGATION WITHOUT LIMITATION OF TIME. PROVIDES THAT: THERE ARE HEREBY AUTHORIZED TO BE APPROPRIATED. THERE ARE TWO RELATED QUESTIONS FOR CONSIDERATION IN DETERMINING WHETHER THE FUNDS PROVIDED BY THESE APPROPRIATIONS ARE TO BE VIEWED AS AVAILABLE WITH OR WITHOUT FISCAL YEAR LIMITATION. INCLUDED IN THE CONTEXT OF BROAD APPROPRIATION ACTS WHICH WERE CLEARLY INTENDED IN THE OVERALL AS LIMITED TO FISCAL YEAR AVAILABILITY.

B-145276, NOV. 5, 1965, 45 COMP. GEN. 236

APPROPRIATIONS - FISCAL YEAR - AVAILABILITY BEYOND - AUTHORIZATION V. APPROPRIATION THE EXCEPTION OF THE LOANS PRESCRIBED BY THE URBAN MASS TRANSPORTATION ACT OF 1964 FROM THE AUTHORITY IN SECTION 9 (E) OF THE ACT (49 U.S.C. 1608 (E) (, PROVIDING THAT FUNDS APPROPRIATED TO CARRY OUT THE FUNCTIONS OF THE ACT SHALL REMAIN AVAILABLE UNTIL EXPENDED, OTHER THAN FUNDS FOR ADMINISTRATIVE EXPENSES, DOES NOT MAKE THE FUNDS FOR LOANS PROVIDED IN FISCAL YEAR APPROPRIATION ACTS SUBJECT TO A FISCAL YEAR LIMITATION, THE EXCLUSION PREMISED ON USE OF TREASURY BORROWINGS HAVING NO BEARING ON THE PERIOD OF APPROPRIATION AVAILABILITY, AND THE RULE THAT APPROPRIATION LANGUAGE REFERRING TO AN AUTHORIZATION ACT MAKING APPROPRIATIONS AVAILABLE FOR LONGER THAN 1 YEAR OPERATES TO INCORPORATE THE PROVISIONS OF THE AUTHORIZING ACT INTO THE APPROPRIATION OVERCOMING THE IMPLICATION OF FISCAL YEAR AVAILABILITY DERIVING FROM THE ENACTING CLAUSE OF A REGULAR ANNUAL APPROPRIATION ACT AND MEETING THE REQUIREMENTS OF 31 U.S.C. 718, PRECLUDING THE CONSTRUCTION OF AN APPROPRIATION AS AVAILABLE CONTINUOUSLY WITHOUT REFERENCE TO FISCAL YEAR UNLESS THE APPROPRIATION EXTENDS AVAILABILITY.

TO THE ADMINISTRATOR, HOUSING AND HOME FINANCE AGENCY, NOVEMBER 5, 1965:

BY LETTER OF OCTOBER 8, 1965, YOU REQUESTED OUR OPINION CONCERNING WHETHER CERTAIN APPROPRIATIONS FOR THE MAKING OF URBAN MASS TRANSPORTATION LOANS ARE TO BE CONSTRUED AS ANNUAL APPROPRIATIONS EXPIRING FOR PURPOSES OF OBLIGATION ON JUNE 30 OF THE FISCAL YEARS FOR WHICH THEY WERE MADE OR WHETHER THEY ARE NO-YEAR APPROPRIATIONS AVAILABLE FOR OBLIGATION WITHOUT LIMITATION OF TIME.

SUBSECTION 9 (E) OF THE URBAN MASS TRANSPORTATION ACT OF 1964, 78 STATS. 307, 49 U.S.C. 1608 (E), PROVIDES THAT:

THERE ARE HEREBY AUTHORIZED TO BE APPROPRIATED, OUT OF ANY MONEY IN THE TREASURY NOT OTHERWISE APPROPRIATED, THE FUNDS NECESSARY TO CARRY OUT ALL FUNCTIONS UNDER THIS ACT EXCEPT LOANS UNDER SECTION 3. ALL FUNDS APPROPRIATED UNDER THIS ACT FOR OTHER THAN ADMINISTRATIVE EXPENSES SHALL REMAIN AVAILABLE UNTIL EXPENDED.

THE SUPPLEMENTAL APPROPRIATION ACT, 1965, MAKING, IN THE TERMS OF ITS ENACTING CLAUSE, SUPPLEMENTAL APPROPRIATIONS FOR THE FISCAL YEAR ENDING JUNE 30, 1965, PROVIDED UNDER THE HEADING URBAN MASS TRANSPORTATION LOANS, AT 78 STAT. 1026:

FOR LOANS AS AUTHORIZED BY SECTION 3 OF THE URBAN MASS TRANSPORTATION ACT OF 1964 (78 STAT. 302), $5,000,000.

THE INDEPENDENT OFFICES APPROPRIATION ACT, 1966, MAKING, IN TERMS OF ITS ENACTING CLAUSE, APPROPRIATIONS FOR THE FISCAL YEAR ENDING JUNE 30, 1966, CONTAINED AN APPROPRIATION IN TERMS IDENTICAL TO THOSE QUOTED IMMEDIATELY ABOVE, EXCEPT FOR THE FORM OF STATUTORY CITATION IN PARENTHESES. 79 STAT. 533.

THERE ARE TWO RELATED QUESTIONS FOR CONSIDERATION IN DETERMINING WHETHER THE FUNDS PROVIDED BY THESE APPROPRIATIONS ARE TO BE VIEWED AS AVAILABLE WITH OR WITHOUT FISCAL YEAR LIMITATION. THE FIRST DEALS WITH WHICH OF THE STATUTORY PROVISIONS QUOTED ABOVE SHOULD GOVERN--- THE AUTHORIZING LEGISLATION PROVIDING THAT FUNDS APPROPRIATED UNDER THE ACT SHALL REMAIN AVAILABLE UNTIL EXPENDED, OR THE APPROPRIATIONS THEMSELVES, INCLUDED IN THE CONTEXT OF BROAD APPROPRIATION ACTS WHICH WERE CLEARLY INTENDED IN THE OVERALL AS LIMITED TO FISCAL YEAR AVAILABILITY. AND IN CONSIDERING THIS QUESTION THERE IS THE SUBSIDIARY QUESTION OF WHAT EFFECT IS TO BE GIVEN TO THE FACT THAT THE AUTHORIZING LEGISLATION EXCEPTS FROM ITS SCOPE THE MAKING OF APPROPRIATIONS TO CARRY OUT LOAN FUNCTIONS UNDER SECTION 3 OF THE ACT, 49 U.S.C. 1602.

THE ACCOUNTING OFFICERS OF THE GOVERNMENT HAVE LONG CONSIDERED, IN THE ABSENCE OF LEGISLATIVE HISTORY TO THE CONTRARY, THAT APPROPRIATION LANGUAGE SPECIFICALLY REFERRING TO AN AUTHORIZATION ACT WHICH PROVIDES THAT APPROPRIATIONS MADE PURSUANT THERETO SHALL REMAIN AVAILABLE FOR LONGER THAN 1 YEAR OPERATES TO INCORPORATE THE PROVISIONS OF THE AUTHORIZING ACT INTO THE PROVISIONS OF THE APPROPRIATION. SUCH INCORPORATION BY REFERENCE IS SUFFICIENT TO OVERCOME THE IMPLICATION OF FISCAL YEAR AVAILABILITY DERIVING FROM THE ENACTING CLAUSE OF A REGULAR ANNUAL APPROPRIATION ACT AND SERVES TO MEET THE REQUIREMENTS OF SECTION 7 OF THE ACT OF AUGUST 24, 1912, AS AMENDED, 31 U.S.C. 718, CITED IN YOUR LETTER, PRECLUDING THE CONSTRUCTION OF AN APPROPRIATION AS AVAILABLE FOR OBLIGATION CONTINUOUSLY WITHOUT REFERENCE TO FISCAL YEAR UNLESS THE APPROPRIATION ACT MAKES EXPRESS PROVISION FOR EXTENDED AVAILABILITY. SEE OUR DECISION OF OCTOBER 26, 1943, B-37398. WE HAVE NOT FOUND ANY INDICATION IN THE LEGISLATIVE HISTORIES OF THE PERTINENT APPROPRIATION ACTS TO SUGGEST THAT DEPARTURE FROM THE GENERAL RULE WAS INTENDED.

BUT WHAT EFFECT SHOULD BE GIVEN TO THE FACT THAT APPROPRIATIONS FOR LOANS WERE EXCLUDED FROM THE AUTHORIZING PROVISIONS OF THE ACT? THE EXCLUSION OF LOANS FROM THE AUTHORIZATION WAS CLEARLY PREMISED ON THE GROUND THAT APPROPRIATIONS FOR LOANS WOULD NOT BE NEEDED, AS THE FUNDS THEREFOR WERE TO BE PROVIDED THROUGH TREASURY BORROWINGS. SEE S.REPT. NO. 82, MARCH 28, 1963, AT PAGE 37 AND H.REPT. NO. 204, APRIL 9, 1963, AT PAGE 20. SEE ALSO SECTION 3 (B) OF THE ACT, 49 U.S.C. 1602 (B). NOTWITHSTANDING THE PROVISIONS FOR FINANCING URBAN MASS TRANSPORTATION LOANS THROUGH TREASURY BORROWINGS, APPROPRIATIONS WERE ENACTED PURSUANT TO YOUR AGENCY'S REQUEST BASED UPON PREVIOUS ACTIONS OF THE CONGRESS WITH RESPECT TO A SIMILAR LOAN PROGRAM AUTHORIZED IN THE HOUSING ACT OF 1961, 75 STAT. 149. HEARINGS ON THE SUPPLEMENTAL APPROPRIATION BILL, 1965, BEFORE SUBCOMMITTEES OF THE COMMITTEE ON APPROPRIATIONS, HOUSE OF REPRESENTATIVES, PART 2, 88TH CONG., 2D SESS., AT PAGE 24. THERE IS NO QUESTION BUT THAT THE APPROPRIATIONS IN QUESTION WERE MADE UNDER THE ACT. AND, OF COURSE, THEY ARE NOT FOR ADMINISTRATIVE EXPENSES. UNDER THESE CIRCUMSTANCES TOGETHER WITH THE LANGUAGE OF SUBSECTION 9 (E) OF THE ACT MAKING ALL FUNDS APPROPRIATED THEREUNDER, OTHER THAN FUNDS FOR ADMINISTRATIVE EXPENSES, AVAILABLE UNTIL EXPENDED, WE AGREE WITH YOUR VIEW THAT THE EXCEPTION OF LOANS FROM THE AUTHORIZATION FOR APPROPRIATIONS HAS NO BEARING ON THE PERIOD OF AVAILABILITY OF THE APPROPRIATIONS.

ACCORDINGLY, THE APPROPRIATIONS DISCUSSED HEREIN MAY BE CONSIDERED AVAILABLE WITHOUT REGARD TO FISCAL YEAR LIMITATION. SINCE THE QUESTION YOU RAISED WAS APPARENTLY GENERATED AS A RESULT OF DOUBTS EXPRESSED BY OFFICIALS OF THE DEPARTMENT OF THE TREASURY, WE ARE FURNISHING A COPY OF THIS LETTER TO THE SECRETARY OF THAT DEPARTMENT.