A-67190, A-67191, MARCH 27, 1936, 15 COMP. GEN. 859

A-67190,A-67191: Mar 27, 1936

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PURCHASES - FEDERAL PRISON-MADE GOODS - NATIONAL INDUSTRIAL RECOVERY ACT FUNDS UNDER EXISTING REGULATIONS PURCHASES OF ARTICLES SUCH AS PRODUCED BY THE RESPECTIVE FEDERAL PENITENTIARIES FROM FUNDS APPROPRIATED TO CARRY OUT THE PURPOSES OF THE NATIONAL INDUSTRIAL RECOVERY ACT ARE REQUIRED TO BE MADE FROM THE FEDERAL PRISON INDUSTRIES. AS FOLLOWS: I HAVE BEEN ADVISED OF YOUR OPINIONS (OP.C.G. 1935) HOLDING THAT MONEYS APPROPRIATED UNDER THE EMERGENCY RELIEF APPROPRIATION ACT OF 1935 ARE NOT AVAILABLE FOR THE PURCHASE OF PRISON MADE GOODS. IN ONE OF THESE OPINIONS YOU STATE THAT: "THE MAKING OF SUCH PURCHASES FROM THE FEDERAL PRISONS WOULD APPEAR TO BE OUT OF LINE WITH THE PURPOSE FOR WHICH THE APPROPRIATION WAS MADE.

A-67190, A-67191, MARCH 27, 1936, 15 COMP. GEN. 859

PURCHASES - FEDERAL PRISON-MADE GOODS - NATIONAL INDUSTRIAL RECOVERY ACT FUNDS UNDER EXISTING REGULATIONS PURCHASES OF ARTICLES SUCH AS PRODUCED BY THE RESPECTIVE FEDERAL PENITENTIARIES FROM FUNDS APPROPRIATED TO CARRY OUT THE PURPOSES OF THE NATIONAL INDUSTRIAL RECOVERY ACT ARE REQUIRED TO BE MADE FROM THE FEDERAL PRISON INDUSTRIES, INC., BUT AMENDMENT OF THE REGULATIONS SO AS TO PROVIDE FOR PURCHASES ELSEWHERE WITHOUT CLEARANCE FROM SAID CORPORATION WOULD NOT BE OBJECTIONABLE.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR, FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS, MARCH 27, 1936:

THERE HAS BEEN CONSIDERED YOUR LETTER OF DECEMBER 18, 1935, AS FOLLOWS:

I HAVE BEEN ADVISED OF YOUR OPINIONS (OP.C.G. A-67190, NOVEMBER 5, 1935, AND OP.C.G. A-67191, NOVEMBER 9, 1935) HOLDING THAT MONEYS APPROPRIATED UNDER THE EMERGENCY RELIEF APPROPRIATION ACT OF 1935 ARE NOT AVAILABLE FOR THE PURCHASE OF PRISON MADE GOODS. IN ONE OF THESE OPINIONS YOU STATE THAT:

"THE MAKING OF SUCH PURCHASES FROM THE FEDERAL PRISONS WOULD APPEAR TO BE OUT OF LINE WITH THE PURPOSE FOR WHICH THE APPROPRIATION WAS MADE," THE PURPOSE BEING "TO PROVIDE RELIEF, WORK RELIEF AND TO INCREASE EMPLOYMENT BY PROVIDING FOR USEFUL PROJECTS.'

WHILE THE WORDING IS SOMEWHAT DIFFERENT, THE PURPOSE AND INTENT OF TITLE II OF THE NATIONAL INDUSTRIAL RECOVERY ACT OF 1933 ARE IN MANY RESPECTS SIMILAR TO THOSE OF THE EMERGENCY RELIEF APPROPRIATION ACT, AND I ASSUME THAT YOUR OPINIONS ABOVE CITED WOULD BE CONTROLLING IN PURCHASES MADE OUT OF APPROPRIATIONS MADE UNDER THIS ACT. HOWEVER, TO CLEAR UP ANY QUESTION, I REQUEST THAT YOU ADVISE ME WHETHER MONEYS APPROPRIATED UNDER THE AUTHORITY OF THE NATIONAL INDUSTRIAL RECOVERY ACT OF 1933 ARE SUBJECT TO THE PROVISIONS OF THE ACT OF MAY 27, 1930, 46 STAT. 392, WHICH PROVIDES:

"THE SEVERAL FEDERAL DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS AND ALL OTHER GOVERNMENT INSTITUTIONS OF THE UNITED STATES SHALL PURCHASE AT NOT TO EXCEED CURRENT MARKET PRICES, SUCH PRODUCTS OF THE INDUSTRIES HEREIN AUTHORIZED TO BE CARRIED ON AS MEET THEIR REQUIREMENTS AND AS MAY BE AVAILABLE AND ARE AUTHORIZED BY THE APPROPRIATIONS FROM WHICH SUCH PURCHASES ARE MADE * * *: "

OR WHETHER YOUR OPINIONS ABOVE CITED COVER PURCHASES MADE FROM FUNDS APPROPRIATED UNDER THE AUTHORITY OF THE NATIONAL INDUSTRIAL RECOVERY ACT.

THE DECLARATION OF POLICY CONTAINED IN SECTION 1 OF THE NATIONAL INDUSTRIAL RECOVERY ACT OF JUNE 16, 1933, 48 STAT. 195, IS IN PART AS FOLLOWS:

* * * IT IS HEREBY DECLARED TO BE THE POLICY OF CONGRESS * * * TO PROMOTE THE FULLEST POSSIBLE UTILIZATION OF THE PRESENT PRODUCTIVE CAPACITY OF INDUSTRIES, * * * TO REDUCE AND RELIEVE UNEMPLOYMENT, TO IMPROVE STANDARDS OF LABOR, AND OTHERWISE TO REHABILITATE INDUSTRY * * *.

TITLE II OF SAID ACT AUTHORIZED THE PRESIDENT TO CREATE THE FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS. SECTION 203 (A) AUTHORIZED HIM TO TAKE CERTAIN STEPS "WITH A VIEW TO INCREASING EMPLOYMENT QUICKLY * * *," AND SECTION 206 PROVIDED THAT ALL CONTRACTS LET FOR CONSTRUCTION PROJECTS AND ALL LOANS AND GRANTS PURSUANT TO SAID TITLE II, SHOULD CONTAIN SUCH PROVISIONS AS NECESSARY TO INSURE (1) THAT NO CONVICT LABOR SHALL BE EMPLOYED ON ANY SUCH PROJECT * * *. SECTION 209 AUTHORIZED THE PRESIDENT TO PRESCRIBE SUCH RULES AND REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE PURPOSES OF SAID TITLE II.

PURSUANT TO THE AUTHORITY VESTED IN HIM BY SECTION 209 OF THE SAID ACT OF JUNE 16, 1933, THE PRESIDENT ISSUED EXECUTIVE ORDER NO. 6252, DATED AUGUST 19, 1933, PRESCRIBING CERTAIN REGULATIONS, AMONG WHICH, SECTION 1, PROVIDED THAT:

NO CONVICT LABOR SHALL BE EMPLOYED ON ANY PROJECT CONSTRUCTED IN WHOLE OR IN PART UNDER THE PROVISIONS OF TITLE II OF SAID ACT. NO MATERIALS MANUFACTURED OR PRODUCED BY CONVICT LABOR SHALL BE USED ON ANY SUCH PROJECT.

BY PARAGRAPH 2 OF EXECUTIVE ORDER NO. 6929, ISSUED UNDER DATE OF DECEMBER 26, 1934, THERE WAS DELEGATED TO THE FEDERAL EMERGENCY ADMINISTRATOR OF PUBLIC WORKS THE POWER TO ALTER, AMEND OR WAIVE ANY OR ALL RULES AND REGULATIONS SET FORTH IN EXECUTIVE ORDER NO. 6252 OF AUGUST 19, 1933 * * *. ACTING PURSUANT TO THE AUTHORITY VESTED IN HIM, THE FEDERAL EMERGENCY ADMINISTRATOR OF PUBLIC WORKS ISSUED REGULATION P.W. 26649, APPROVED BY THE PRESIDENT DECEMBER 26, 1934, PARAGRAPH 1 OF WHICH PROVIDES:

1. CONVICT LABOR.--- NO CONVICT LABOR SHALL BE EMPLOYED ON ANY PROJECT CONSTRUCTED IN WHOLE OR IN PART UNDER THE PROVISION OF TITLE II OF SAID ACT. NO MATERIALS MANUFACTURED OR PRODUCED IN WHOLE OR IN PART BY CONVICT LABOR SHALL BE DIRECTLY INCORPORATED INTO ANY SUCH PROJECT EXCEPT IN THOSE CASES IN WHICH THE USE OF SUCH MATERIALS IS REQUIRED BY APPLICABLE STATUTES.

IN DECISION OF THIS OFFICE DATED JULY 5, 1935, A-62901, THE SECRETARY OF WAR WAS ADVISED THAT IN VIEW OF THE EXCEPTION MADE IN THE ABOVE QUOTED REGULATION, FUNDS AVAILABLE FROM ALLOTMENTS MADE BY THE FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS MIGHT BE USED IN REIMBURSING THE FEDERAL PRISON INDUSTRIES, INC., FOR PURCHASES PURSUANT TO SECTION 7 OF THE ACT OF MAY 27, 1930, 46 STAT. 392. IN THIS CONNECTION IT IS TO BE OBSERVED THAT P.W.A. FORM NO. 188, RULES AND REGULATIONS APPLICABLE TO LOANS AND GRANTS UNDER TITLE II OF THE ACT OF JUNE 16, 1935, SUPRA, AND FORM NO. P.W.A. 200 APPLICABLE TO GRANTS, ISSUED AUGUST 12, 1935, PROVIDE AS FOLLOWS:

1 (A). CONVICT LABOR.--- NO CONVICT LABOR SHALL BE EMPLOYED ON THE PROJECT, AND NO MATERIALS MANUFACTURED OR PRODUCED BY CONVICT LABOR SHALL BE USED ON THE PROJECT UNLESS REQUIRED BY LAW.

I HAVE TO ADVISE, THEREFORE, THAT THE DECISIONS REFERRED TO IN YOUR LETTER, A-67190 AND A-67191, ARE NOT APPLICABLE TO PURCHASES UNDER NATIONAL INDUSTRIAL RECOVERY FUNDS. HOWEVER, IN VIEW OF THE ABOVE QUOTED PROVISIONS OF THE NATIONAL INDUSTRIAL RECOVERY ACT AND EXECUTIVE ORDERS 6252, AUGUST 19, 1933, AND 6929, DECEMBER 26, 1934, THIS OFFICE WOULD NOT BE REQUIRED TO OBJECT TO AMENDMENT OF THE REGULATIONS HEREINBEFORE REFERRED TO SO AS TO PROVIDE THAT PURCHASES OF ARTICLES SUCH AS PRODUCED BY THE RESPECTIVE FEDERAL PENITENTIARIES MAY BE PURCHASED ELSEWHERE WITHOUT OBTAINING CLEARANCE FROM THE FEDERAL PRISON INDUSTRIES, INC., WHEN PAYMENT FOR THE ARTICLES IS TO BE MADE WITH FUNDS APPROPRIATED TO CARRY OUT THE PURPOSES OF THE NATIONAL INDUSTRIAL RECOVERY ACT.