B-150657, MAR. 8, 1963

B-150657: Mar 8, 1963

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THE APPLICATION AND AGREEMENT FORMS WERE EXECUTED BY THE SCOUT EXECUTIVE ON JULY 27. THE AGREEMENT FORM WAS SIGNED BY THE ADMINISTRATIVE OFFICER OF THE WESTERN AREA OFFICE ON JULY 30. CLAIM FOR REIMBURSEMENT FOR THE MILK SERVED DURING THE PERIOD FROM JULY 15 TO JULY 30 WAS DISALLOWED. THE COUNCIL PROTESTED AND THE MATTER WAS REFERRED TO OUR OFFICE FOR DECISION. THE FILE INDICATES THAT THE PROBLEM INVOLVED IS SIMPLY THAT THE FORMAL APPLICATION WAS NOT EXECUTED AND SUBMITTED PRIOR TO THE START OF THE MILK SERVICE OPERATIONS ON JULY 15. IT IS STATED THAT THE WESTERN AREA OFFICE OF THE FOOD DISTRIBUTION DIVISION IS SATISFIED THAT THE MILK SERVICE OPERATIONS OTHERWISE HAVE MET IN ALL RESPECTS THE REQUIREMENTS OF THE SPECIAL MILK PROGRAM REGULATIONS.

B-150657, MAR. 8, 1963

TO THE SECRETARY OF AGRICULTURE:

BY LETTER OF JANUARY 17, 1963, YOUR ADMINISTRATIVE ASSISTANT SECRETARY PRESENTED FOR OUR CONSIDERATION THE AGRICULTURAL MARKETING SERVICE FILE ON THE SPECIAL MILK PROGRAM AGREEMENT NO. 12-25-300-2754 WITH THE OLYMPIC AREA COUNCIL, BOY SCOUTS OF AMERICA, BREMERTON, WASHINGTON, AND REQUESTED OUR DECISION AS TO WHETHER THE AGREEMENT COULD BE AMENDED TO CHANGE ITS EFFECTIVE DATE FROM JULY 30, 1962, TO JULY 15, 1962.

THE FILE TRANSMITTED TO OUR OFFICE SHOWS THAT THE CAMP DIRECTOR OF THE OLYMPIC AREA COUNCIL ADVISED THE WESTERN AREA OFFICE OF THE AGRICULTURAL MARKETING SERVICE, FOOD DISTRIBUTION DIVISION, BY LETTER DATED JUNE 22, 1962, THAT THE COUNCIL INTENDED TO PARTICIPATE IN THE SPECIAL MILK PROGRAM AT ITS CAMP WERNER, WHICH WOULD OPEN ON JULY 8, AND CONTINUE UNTIL AUGUST 5, AND REQUESTED THE NECESSARY FORMS. THE APPLICATION AND AGREEMENT FORMS WERE EXECUTED BY THE SCOUT EXECUTIVE ON JULY 27, 1962, AND INDICATED THAT MILK SERVICE ELIGIBLE FOR PARTICIPATION OPENED ON JULY 15, 1962, AND WOULD CLOSE AUGUST 4, 1962. THE AGREEMENT FORM WAS SIGNED BY THE ADMINISTRATIVE OFFICER OF THE WESTERN AREA OFFICE ON JULY 30, 1962, THE DATE OF ITS RECEIPT, WITH A STIPULATION THAT IT WOULD BE EFFECTIVE COMMENCING ON THAT DATE. CONSEQUENTLY, CLAIM FOR REIMBURSEMENT FOR THE MILK SERVED DURING THE PERIOD FROM JULY 15 TO JULY 30 WAS DISALLOWED. THE COUNCIL PROTESTED AND THE MATTER WAS REFERRED TO OUR OFFICE FOR DECISION.

THE FILE INDICATES THAT THE PROBLEM INVOLVED IS SIMPLY THAT THE FORMAL APPLICATION WAS NOT EXECUTED AND SUBMITTED PRIOR TO THE START OF THE MILK SERVICE OPERATIONS ON JULY 15, 1962, IN CAMP WERNER. IT IS STATED THAT THE WESTERN AREA OFFICE OF THE FOOD DISTRIBUTION DIVISION IS SATISFIED THAT THE MILK SERVICE OPERATIONS OTHERWISE HAVE MET IN ALL RESPECTS THE REQUIREMENTS OF THE SPECIAL MILK PROGRAM REGULATIONS.

THE SPECIAL MILK PROGRAM FOR CHILDREN IS CARRIED OUT UNDER THE AUTHORITY OF THE ACT OF JULY 1, 1958, PUB.L. 85-478, 72 STAT. 276, AS AMENDED (7 U.S.C. 1446 NOTE). THE OPERATIONS OF THE PROGRAM ARE GOVERNED BY REGULATIONS PUBLISHED AS PART 215 OF TITLE 7, CODE OF FED.REGS. THE CITED ACT AUTHORIZES THE APPROPRIATION AND DIRECTS THE EXPENDITURE OF STATED FUNDS TO INCREASE THE CONSUMPTION OF FLUID MILK BY CHILDREN IN SPECIFIED TYPES OF INSTITUTIONS, INCLUDING SUMMER CAMPS. THE CITED REGULATIONS SET FORTH THE TERMS AND CONDITIONS UPON WHICH PAYMENTS UNDER THE ACT WILL BE MADE. WHILE THERE IS NO EXPRESS PROVISION IN THE BASIC ACT AUTHORIZING YOU TO ISSUE REGULATIONS RELATING TO THE PROGRAM ESTABLISHED THEREBY, THE AMENDMENT THERETO ENACTED BY SECTION 402 OF THE AGRICULTURAL ACT OF 1961, APPROVED AUGUST 8, 1961, PUB.L. 87-128, 75 STAT. 319, AUTHORIZED THE PROMULGATION OF SUCH RULES AND REGULATIONS AS YOU MAY DEEM IN THE PUBLIC INTEREST. HENCE, THE TERMS AND CONDITIONS PRESCRIBED BY THE CITED REGULATIONS ARE STATUTORY REGULATIONS AND, AS SUCH, CANNOT ORDINARILY BE WAIVED BY ADMINISTRATIVE ACTION IN PARTICULAR INSTANCES.

THE COUNCIL CONTENDED, AND THE WESTERN AREA OFFICE ACKNOWLEDGED, THAT NOWHERE IN THE INSTRUCTIONS OR INFORMATION RECEIVED ON THE PROGRAM WAS A DEADLINE FOR APPLICATION INDICATED. THE WESTERN AREA OFFICE ATTRIBUTES THIS FACT TO ROUTINE HANDLING OF REQUESTS FOR APPLICATION FORMS AND THE EXPECTATION THAT ANY PROGRAM SPONSOR WOULD ORDINARILY REALIZE FOR HIMSELF THAT AN APPLICATION SHOULD BE SUBMITTED IN TIME TO BE APPROVED BEFORE THE START OF PROGRAM OPERATIONS. WHILE THERE IS NOTHING IN THE REGULATIONS SPECIFICALLY AND EXPRESSLY STATING THAT AN APPLICATION MUST BE SUBMITTED BEFORE THE START OF A PROGRAM, SECTION 215.9 OF THE REGULATIONS PROVIDES THAT WRITTEN APPROVAL MAY BE GRANTED TO BEGIN OPERATIONS UNDER THE PROGRAM PRIOR TO THE RECEIPT OF THE APPLICATION AND THAT THE AGREEMENT EXECUTED SHALL BE EFFECTIVE FROM THE DATE ON WHICH OPERATIONS WERE AUTHORIZED TO BEGIN.

AS STATED ABOVE, THE COUNCIL ADVISED THE WESTERN AREA OFFICE BY ITS LETTER OF JUNE 22, 1962, OF ITS INTENTION TO ENTER THE PROGRAM, AND THERE IS NO QUESTION BUT THAT IT FULLY COMPLIED WITH THE SUBSTANTIVE REQUIREMENTS OF THE PROGRAM FROM JULY 15, 1962. UNDER THE REGULATIONS, WRITTEN AUTHORITY TO BEGIN OPERATIONS UNDER THE PROGRAM PRIOR TO RECEIPT OF THE FORMAL APPLICATION COULD HAVE BEEN GRANTED UPON RECEIPT OF THE LETTER OF JUNE 22. APPARENTLY SUCH APPROVAL WAS NOT GRANTED ONLY BECAUSE THE WESTERN AREA OFFICE ASSUMED THE COUNCIL WOULD SUBMIT ITS FORMAL APPLICATION PRIOR TO BEGINNING OPERATIONS. THERE WAS NO INTENT TO DEPRIVE THE COUNCIL OF REIMBURSEMENT FOR PART OF ITS COMPLIANCE WITH THE PROGRAM. IN VIEW THEREOF, AND OF THE NATURE OF THE PROGRAM HERE INVOLVED--- THE IMPROVEMENT OF THE HEALTH OF THE NATION'S CHILDREN BY INCREASING THEIR CONSUMPTION OF FLUID MILK--- AND OF THE FACT THAT THE PURPOSES OF THE PROGRAM WERE FULFILLED BY THE COUNCIL FROM THE DATE IN QUESTION, WE WILL NOT OBJECT TO AMENDMENT OF THE AGREEMENT TO SHOW THE EFFECTIVE DATE AS JULY 15, 1962, AND PAYMENT IN ACCORDANCE THEREWITH.