B-60907, NOVEMBER 22, 1946, 26 COMP. GEN. 354

B-60907, NOVEMBER 22, 1946, 26 COMP. GEN. 354

BOARDS AND COMMISSIONS - FEDERAL AGENCIES' PARTICIPATION IN ACTIVITIES OF COMMON INTEREST THE INHIBITION IN SECTION 9 OF THE ACT OF MARCH 4, 1909, AGAINST THE INCURRENCE OR PAYMENT OF EXPENSES OF COMMISSIONS, COUNCILS, ETC., HAVING BEEN REMOVED BY SECTION 214 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1946, IN RESPECT TO "INTERAGENCY GROUPS ENGAGED IN AUTHORIZED ACTIVITIES OF COMMON INTEREST" TO THE AGENCIES INVOLVED, FUNDS CURRENTLY APPROPRIATED TO THE FEDERAL COMMUNICATIONS COMMISSION ARE AVAILABLE UNDER SAID SECTION 214 FOR EXPENSES INCIDENT TO THE COMMISSION'S PARTICIPATION IN THE ACTIVITIES OF THE RADIO TECHNICAL COMMISSION FOR AERONAUTICS--- COMPOSED OF REPRESENTATIVES OF INTERESTED FEDERAL AGENCIES AND OF PRIVATE ORGANIZATIONS--- PROVIDED IT BE DETERMINED BY THE FEDERAL COMMUNICATIONS COMMISSION THAT SUCH PARTICIPATION IS ESSENTIAL TO ITS AUTHORIZED FUNCTIONS.

ACTING COMPTROLLER GENERAL YATES TO THE ACTING CHAIRMAN, FEDERAL COMMUNICATIONS COMMISSION, NOVEMBER 22, 1946:

CONSIDERATION HAS BEEN GIVEN TO LETTER OF SEPTEMBER 25, 1946, FROM THE SECRETARY, FEDERAL COMMUNICATIONS COMMISSION, AS FOLLOWS:

THE FOLLOWING INFORMATION IS SUBMITTED FOR YOUR CONSIDERATION AND OPINION WHETHER UNDER THE CIRCUMSTANCES OUTLINED BELOW CERTAIN COMMISSION EQUIPMENT AND PERSONNEL MAY BE MADE AVAILABLE TO THE RADIO TECHNICAL COMMISSION FOR AERONAUTICS ( RTCA). RTCA, WHICH HAS FOR SOME TIME FUNCTIONED AS AN ADVISORY GROUP IN THE FIELD OF AERONAUTICAL RADIO, CONSISTS OF REPRESENTATIVES OF INDUSTRY AND THE SEVERAL GOVERNMENT AGENCIES INTERESTED IN THE USE OF RADIO IN THE FIELD OF AERONAUTICS. DOES NOT FUNCTION PURSUANT TO SPECIFIC PROVISION OF LAW OR, FOR EXAMPLE, UNDER EXECUTIVE ORDER OF THE PRESIDENT, BUT IS THE RESULT OF STEPS TAKEN BY THOSE REPRESENTED IN ITS MEMBERSHIP TO PROVIDE A FORUM FOR DISCUSSION AND CONSIDERATION OF POLICIES CONCERNING AERONAUTICAL RADIO WHICH ARE OF PARTICULAR CONCERN TO THE MEMBERSHIP.

IT IS NOW PROPOSED TO EXPAND SOMEWHAT THE FUNCTIONS OF RTCA AND, IN THAT CONNECTION, IT IS CONTEMPLATED THAT THE MEMBER AGENCIES AND INDUSTRY GROUPS PROVIDE RTCA WITH A FULL TIME SECRETARIAT AND TECHNICAL STAFF, AND NECESSARY OFFICE SUPPLIES AND EQUIPMENT. UNDER THE PLAN NOW BEING PROPOSED THIS COMMISSION WOULD FURNISH TO RTCA EXPENDABLE OFFICE SUPPLIES SUCH AS FILE FOLDERS, SCRATCH PADS, PENCILS, TYPEWRITER RIBBONS, ETC. COSTING APPROXIMATELY ONE THOUSAND DOLLARS ($1,000.00) AND WHEN POSSIBLE A FULL TIME ENGINEER FOR THE RTCA STAFF. IN ORDER THAT YOU MAY HAVE A MORE COMPLETE PICTURE OF THE FACTS HERE INVOLVED, THERE ARE INCLOSED A COPY OF THE PROPOSED RTCA CONSTITUTION AND A COPY OF A LISTING SHOWING THE PROPOSED CONTRIBUTION BY THE MEMBERSHIP FOR THE EXPENSE OF THE RTCA SECRETARIAT FOR THE FISCAL YEAR 1947.

QUESTION HAS ARISEN WHETHER THE FUNDS APPROPRIATED FOR THIS COMMISSION IN THE INDEPENDENT OFFICES APPROPRIATION ACT FOR 1947 ( PUBLIC LAW 334, 79TH CONGRESS) MAY PROPERLY BE USED TO FURNISH RTCA WITH THE PERSONNEL AND OFFICE EQUIPMENT AS PROPOSED, PARTICULARLY IN VIEW OF THE FOLLOWING PROVISIONS OF 31 U.S.C. SEC. 673:

"NO PART OF THE PUBLIC MONEYS, OR OF ANY APPROPRIATION MADE BY CONGRESS, SHALL BE USED FOR THE PAYMENT OF COMPENSATION OR EXPENSES OF ANY COMMISSION, COUNCIL, BOARD, OR OTHER SIMILAR BODY, OR ANY MEMBERS THEREOF, OR FOR EXPENSES IN CONNECTION WITH ANY WORK OR THE RESULTS OF ANY WORK OR ACTION OF ANY COMMISSION, COUNCIL, BOARD, OR OTHER SIMILAR BODY, UNLESS THE CREATION OF THE SAME SHALL BE OR SHALL HAVE BEEN AUTHORIZED BY LAW; NOR SHALL THERE BE EMPLOYED BY DETAIL, HEREAFTER OR HERETOFORE MADE, OR OTHERWISE PERSONAL SERVICES FROM ANY EXECUTIVE DEPARTMENT OR OTHER GOVERNMENT ESTABLISHMENT IN CONNECTION WITH ANY SUCH COMMISSION, COUNCIL, BOARD, OR OTHER SIMILAR BODY.'

YOUR OPINION CONCERNING THIS PROBLEM IS RESPECTFULLY REQUESTED.

IT APPEARS FROM THE ENCLOSURES WITH YOUR LETTER THAT THE EXECUTIVE COMMITTEE OF THE RADIO TECHNICAL COMMISSION FOR AERONAUTICS IS COMPOSED OF REPRESENTATIVES OF THE STATE, WAR, COMMERCE, NAVY AND TREASURY DEPARTMENTS, AND REPRESENTATIVES OF THE FEDERAL COMMUNICATIONS COMMISSION, TOGETHER WITH REPRESENTATIVES OF FIVE PRIVATE ORGANIZATIONS, NAMELY, AERONAUTICAL RADIO, INC., AIRCRAFT OWNERS AND PILOTS ASSOCIATION, AIR LINE PILOTS ASSOCIATION, AIR TRANSPORT ASSOCIATION, AND THE RADIO MANUFACTURERS ASSOCIATION. ARTICLE II OF THE CONSTITUTION OF THE RTCA OUTLINES THE PURPOSE AND ACTIVITIES OF THE COMMISSION AS FOLLOWS.

SECTION 1--- ITS OBJECTIVE IS TO ADVANCE THE ART AND SCIENCE OF AERONAUTICS THROUGH THE INVESTIGATION OF ALL AVAILABLE OR POTENTIAL APPLICATIONS OF THE TELE-COMMUNICATIONS ART, AND THE ADAPTATION THEREOF, TO RECOGNIZED OPERATIONAL REQUIREMENTS.

SECTION 2--- ITS ACTIVITIES SHALL INCLUDE THE STUDY OF EXISTING AND PROPOSED SYSTEMS OF AIDS TO NAVIGATION, COMMUNICATIONS AND TRAFFIC CONTROL TO DETERMINE THEIR SUITABILITY, AND THE FOSTERING OF NEW DEVELOPMENTS TO MEET AERONAUTICAL OPERATING REQUIREMENTS. IT SHALL SERVE AS A MEANS OF COORDINATING GOVERNMENTS AND INDUSTRY VIEWS ON MATTERS WITHIN ITS PURVIEW AND SHALL FORMULATE RECOMMENDATIONS ON THE BASIS THEREOF.

ALSO, AS IS INDICATED IN YOUR LETTER, THE CONSTITUTION PROVIDES FOR THE EMPLOYMENT BY THE COMMISSION, THROUGH ITS EXECUTIVE COMMITTEE, OF AN EXECUTIVE SECRETARY AND FOR THE SETTING UP OF A SECRETARIAT IN WASHINGTON, D.C., COMPRISING THE EXECUTIVE SECRETARY AND A STAFF OF TECHNICAL AND CLERICAL ASSISTANTS EMPLOYED BY THE RTCA OR ASSIGNED TO THE SECRETARIAT BY MEMBER ORGANIZATIONS OF THE EXECUTIVE COMMITTEE.

IT APPEARS FURTHER FROM THE COPY OF THE LISTING--- FORWARDED WITH YOUR LETTER--- SHOWING THE PROPOSED DISTRIBUTION OF EXPENSES OF THE SECRETARIAT FOR THE FISCAL YEAR 1947, THAT, IN ADDITION TO THE FURNISHING BY THE FEDERAL COMMUNICATIONS COMMISSION OF EXPENDABLE OFFICE SUPPLIES IN THE AMOUNT OF $1,000 TO THE SECRETARIAT, AND THE ASSIGNMENT OF ONE FULL-TIME TECHNICAL REPRESENTATIVE TO IT, THE OTHER GOVERNMENT AGENCIES REPRESENTED ON THE EXECUTIVE COMMITTEE ARE TO MAKE CONTRIBUTIONS OR ASSIGNMENTS OF PERSONNEL AS FOLLOWS:

THE STATE DEPARTMENT IS TO PROVIDE AND MAINTAIN OFFICES FOR THE SECRETARIAT IN THE PRESENT WAR DEPARTMENT BUILDING AT 21ST STREET AND VIRGINIA AVENUE, N.W., WASHINGTON, D.C., TOGETHER WITH TELEPHONE AND TELEGRAPH SERVICES AND ONE FULL-TIME TECHNICAL REPRESENTATIVE. THE WAR DEPARTMENT IS TO ASSIGN ONE FULL-TIME TECHNICAL REPRESENTATIVE AND ONE FULL-TIME STENOGRAPHER TO THE SECRETARIAT STAFF AND IS TO FURNISH TRANSPORTATION SERVICES AND CONTRIBUTE FUNDS IN THE AMOUNT OF $1,750 PER ANNUM. THE COMMERCE DEPARTMENT IS TO DELEGATE AND ASSIGN TO THE SECRETARIAT STAFF ONE FULL-TIME TECHNICAL REPRESENTATIVE AND ONE FULL TIME STENOGRAPHER AND ALSO, IS TO FURNISH ALL OFFICE EQUIPMENT SUCH AS TYPEWRITERS, FILE BASKETS, DESK SETS, ETC., AND TO REPRODUCE ALL MIMEOGRAPHED MATERIAL. THE NAVY DEPARTMENT IS TO ASSIGN TO THE SECRETARIAT STAFF ONE FULL-TIME TECHNICAL REPRESENTATIVE AND ONE FULL TIME CLERK-ACCOUNTANT AND IS TO FURNISH OTHER MISCELLANEOUS SERVICES AND TO CONTRIBUTE FUNDS IN THE AMOUNT OF $1,750 PER ANNUM. THE TREASURY DEPARTMENT IS TO FURNISH OFFICE FURNITURE SUCH AS DESKS, CHAIRS, FILE CABINETS, TABLES, CABINETS, BOOKCASES, ETC., AND IS TO DESIGNATE A LIAISON REPRESENTATIVE WHO WILL HANDLE ALL RTCA MATTERS. THE VARIOUS PRIVATE AGENCIES WHO ARE REPRESENTED ON THE COMMISSION ARE TO CONTRIBUTE FUNDS RANGING FROM $1,000 TO $3,500 PER YEAR.

IN THE DECISIONS OF THE ACCOUNTING OFFICERS CONSTRUING SECTION 9 OF THE ACT OF MARCH 4, 1909, 35 STAT. 1027, 31 U.S.C. 673, QUOTED IN OUR LETTER, IT HAS BEEN STATED THAT THE PURPOSE AND EFFECT OF SAID STATUTE IS TO PROHIBIT THE INCURRING OR PAYING OF EXPENSES INCIDENT TO THE CREATION OF COMMISSIONS, COUNCILS, BOARDS, OR SIMILAR BODIES BY THE EXECUTIVE BRANCH OF THE GOVERNMENT THROUGH ITS INHERENT POWER TO MAKE APPOINTMENTS AND INCUR EXPENSES, UNLESS SPECIFIC LEGISLATIVE AUTHORITY FOR SUCH COMMISSION, COUNCIL, BOARD, OR SIMILAR BODY IS FIRST GRANTED BY APPROPRIATION OR OTHERWISE. SEE 11 COMP. GEN. 331, AND THE CASES CITED THEREIN. HOWEVER, TO THE EXTENT THAT THE SAID STATUTE PRECLUDES THE USE OF APPROPRIATED FUNDS FOR THE EXPENSES OF A COMMISSION, COUNCIL, BOARD, OR OTHER SIMILAR BODY COMPRISED OF REPRESENTATIVES OF DIFFERENT FEDERAL AGENCIES, SUCH INHIBITION HAS BEEN REMOVED IN THE CASE OF "INTERAGENCY GROUPS ENGAGED IN AUTHORIZED ACTIVITIES OF COMMON INTEREST" TO THE AGENCIES INVOLVED, BY VIRTUE OF SECTION 214 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1946, APPROVED MAY 3, 1945, 59 STAT. 134, WHICH PROVIDES:

HEREAFTER APPROPRIATIONS OF THE EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS OF THE GOVERNMENT SHALL BE AVAILABLE FOR THE EXPENSES OF COMMITTEES, BOARDS, OR OTHER INTERAGENCY GROUPS ENGAGED IN AUTHORIZED ACTIVITIES OF COMMON INTEREST TO SUCH DEPARTMENTS AND ESTABLISHMENTS AND COMPOSED IN WHOLE OR IN PART OF REPRESENTATIVES THEREOF WHO RECEIVE NO ADDITIONAL COMPENSATION BY VIRTUE OF SUCH MEMBERSHIP: PROVIDED, THAT EMPLOYEES OF SUCH DEPARTMENTS AND ESTABLISHMENTS RENDERING SERVICE FOR SUCH COMMITTEES, BOARDS, OR OTHER GROUPS, OTHER THAN AS REPRESENTATIVES, SHALL RECEIVE NO ADDITIONAL COMPENSATION BY VIRTUE OF SUCH SERVICE.

IN VIEW OF THE USE OF THE WORD " HEREAFTER" IN THE ENACTMENT, AND SINCE THE PROVISION IS OF A GENERAL CHARACTER BEARING NO DIRECT RELATION TO THE OBJECT OF THE APPROPRIATION ACT IN WHICH IT APPEARS, IT PROPERLY IS TO BE CONSTRUED AS PERMANENT LEGISLATION. 10 COMP. GEN. 120. SEE, ALSO, THE HEARINGS BEFORE THE SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS, HOUSE OF REPRESENTATIVES, PAGE 1324, WHEREIN A REPRESENTATIVE ( MR. LAWTON) OF THE BUREAU OF THE BUDGET, IN EXPLAINING THE PURPOSE OF THE FOREGOING STATUTE, STATED:

SECTION 214 MAKES PERMANENT LAW THE PROVISION WHICH WAS INSERTED IN THE FIRST SUPPLEMENTAL APPROPRIATION BILL FOR 1945, WHICH WAS INTENDED AS A DEFINITION OF WHAT THE RUSSELL AMENDMENT COVERED. INASMUCH AS THAT AMENDMENT ITSELF IS PERMANENT LEGISLATION, THE DEFINITION, WE THOUGHT, SHOULD ALSO BE MADE PERMANENT.

HAVING REGARD FOR THE PROVISIONS OF SECTION 214, ABOVE QUOTED, THERE NOW WOULD APPEAR TO BE NO REASON WHY AGENCIES OF THE GOVERNMENT CANNOT, IN A PROPER CASE, UTILIZE APPROPRIATED FUNDS UNDER THEIR CONTROL, THROUGH AN INTERAGENCY GROUP, FOR THE PURPOSE OF PERFORMING "AUTHORIZED ACTIVITIES OF COMMON INTEREST" TO SUCH AGENCIES.

THE ABOVE-QUOTED LETTER OF SEPTEMBER 25, DOES NOT INDICATE THE BASIS UPON WHICH IT HAS BEEN DETERMINED BY YOUR AGENCY THAT FUNDS APPROPRIATED TO THE FEDERAL COMMUNICATIONS COMMISSION FOR THE FISCAL YEAR 1947 ARE AVAILABLE FOR THE CARRYING ON BY THE COMMISSION OF A STUDY OF EXISTING AND PROPOSED SYSTEMS OF AIDS TO NAVIGATION, COMMUNICATIONS AND TRAFFIC CONTROL TO DETERMINE THEIR SUITABILITY, AND TO FOSTER NEW DEVELOPMENTS TO MEET AERONAUTICAL OPERATING REQUIREMENTS, AS SET FORTH IN THE ABOVE-QUOTED EXCERPT FROM THE CONSTITUTION OF THE RTCA. IN SUCH CONNECTION SEE OFFICE DECISION OF NOVEMBER 14, 1945, B 51203, TO THE DIRECTOR, OFFICE OF SCIENTIFIC RESEARCH AND DEVELOPMENT. HOWEVER, IN THE INDEPENDENT OFFICES APPROPRIATION ACT FOR 1947, PUBLIC LAW 334, 79TH CONGRESS, 60 STAT. 64, FUNDS WERE APPROPRIATED FOR SALARIES AND EXPENSES OF THE FEDERAL COMMUNICATIONS COMMISSION IN PERFORMING, AMONG OTHERS, THE DUTIES IMPOSED BY THE COMMUNICATIONS ACT OF 1934 (48 STAT. 1064). SECTION 303 (G) OF THE COMMUNICATIONS ACT OF 1934, 48 STAT. 1082, PROVIDES THAT THE COMMUNICATIONS COMMISSION, FROM TIME TO TIME, AS THE PUBLIC INTEREST OR NECESSITY REQUIRES, SHALL

(G) STUDY NEW USES FOR RADIO, PROVIDE FOR EXPERIMENTAL USES OF FREQUENCIES, AND GENERALLY ENCOURAGE THE LARGER AND MORE EFFECTIVE USE OF RADIO IN THE PUBLIC INTEREST:

HENCE, INSOFAR AS THE FEDERAL COMMUNICATIONS COMMISSION IS CONCERNED, THE FUNDS APPROPRIATED IN THE INDEPENDENT OFFICES APPROPRIATION ACT, 1947, SUPRA, FOR THE FISCAL YEAR 1947 PROPERLY ARE AVAILABLE UNDER THE TERMS OF SECTION 214 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1946, QUOTED ABOVE, FOR EXPENSES OF A COMMITTEE, BOARD OR OTHER INTERAGENCY GROUP ENGAGED IN AN ACTIVITY SUCH AS IS CONTEMPLATED BY SECTIONS 1 AND 2 OF THE CONSTITUTION OF THE RTCA SET FORTH ABOVE. AND, SINCE IT IS PROVIDED THAT SUCH COMMITTEES, ETC., MAY BE "COMPOSED IN WHOLE OR IN PART OF REPRESENTATIVES" OF SUCH AGENCIES, THE CIRCUMSTANCE THAT THE MEMBERSHIP THEREOF INCLUDES REPRESENTATIVES OF PRIVATE AGENCIES OR ORGANIZATIONS WOULD NOT APPEAR TO PRECLUDE SUCH USE OF APPROPRIATED FUNDS.

THEREFORE, I HAVE TO ADVISE THAT, IF IT BE ADMINISTRATIVELY DETERMINED THAT THE PARTICIPATION OF THE FEDERAL COMMUNICATIONS COMMISSION IN THE ACTIVITIES OF THE RADIO TECHNICAL COMMISSION FOR AERONAUTICS IS ESSENTIAL TO THE PROSECUTION OF ITS AUTHORIZED FUNCTIONS IN CONNECTION WITH RADIO COMMUNICATION IN THE FIELD OF AERONAUTICS, THERE WOULD APPEAR TO BE NO LEGAL OBJECTION TO THE USE OF THE APPROPRIATED FUNDS OF YOUR COMMISSION AS OUTLINED IN YOUR LETTER. ACCORDINGLY, THE QUESTION PRESENTED IS ANSWERED IN THE AFFIRMATIVE.