B-177610, SEP 3, 1976

B-177610, SEP 3, 1976

WHILE CONGRESSIONAL COMMITTEES REDUCED BY 20 PERCENT SOIL CONSERVATION SERVICE (SCS) BUDGET ESTIMATE FOR STANDARD LEVEL USER CHARGFS PAYABLE TO GENERAL SERVICES ADMINISTRATION FROM LUMP SUM APPROPRIATION FOR "CONSERVATION OPERATIONS" MADE BY PUB. L. NO. 94-122, THIS REDUCTION DOES NOT LEGALLY LIMIT SCS USER CHARGE PAYMENTS TO 80 PERCENT OF ORIGINAL BUDGET ESTIMATE. SUBDIVISIONS OF LUMP SUM APPROPRIATIONS EVIDENCED IN AGENCY BUDGET REQUESTS OR COMMITTEE REPORTS ARE NOT LEGALLY BINDING UNLESS SPECIFIED IN APPROPRIATION ACT ITSELF. THEREFORE, SCS MUST PAY USER CHARGES SUBJECT ONLY TO 90 PERCENT LIMITATION IN SECTION 608 OF PUB. L. NO. 94-122.

SOIL CONSERVATION SERVICE'S STANDARD LEVEL USER CHARGE PAYMENTS:

THIS DECISION IS IN RESPONSE TO AN INQUIRY BY THE ACTING ADMINISTRATOR OF THE SOIL CONSERVATION SERVICE (SCS), DEPARTMENT OF AGRICULTURE, CONCERNING THE AUTHORITY OF SCS TO PAY STANDARD LEVEL USER CHARGES (SLUC) FOR SPACE RENTAL FOR FISCAL YEAR 1976, IN THE AMOUNT ASSESSED BY THE GENERAL SERVICES ADMINISTRATION. FOR FY 1976, GSA HAS ASSESSED SCS $8,184,576 (REPRESENTING 90 PERCENT OF THE ESTABLISHED SLUC) WHEREAS SCS IS OF THE OPINION THAT THE LEGISLATIVE HISTORY OF THE AGRICULTURE AND RELATED AGENCIES APPROPRIATION ACT, 1976, PUBL L. NO. 94-122, OCTOBER 21, 1975, 89 STAT. 641, INDICATES THAT THE CONGRESS INTENDED THAT NO MORE THAN $5,272,000 BE EXPENDED FOR PAYMENT OF THE SLUC ASSESSED BY GSA.

ONE OF THE PURPOSES OF THE PUBLIC BUILDINGS AMENDMENTS OF 1972, PUB. L. NO. 92-303, JUNE 16, 1972, 86 STAT. 219, WAS THE AMENDMENT OF SECTION 210(F) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, 40 U.S.C. 490(F), TO CREATE THE FEDERAL BUILDING FUND TO FINANCE REAL PROPERTY MANAGEMENT AND RELATED GSA ACTIVITIES. AMONG THE SOURCES OF REVENUE TO BE PAID INTO THE FUND ARE USER CHARGES ASSESSED UNDER SECTION 210(J) OF THE ACT 40 U.S.C. 490(J) (SUPP. IV, 1974), WHICH WAS ALSO ADDED BY THE PUBLIC BUILDINGS ACT AMENDMENTS OF 1972. SECTION 490(J) PROVIDES, INTER ALIA:

"THE ADMINISTRATOR OF GENERAL SERVICES IS AUTHORIZED AND DIRECTED TO CHARGE ANYONE FURNISHED SERVICES, SPACE, QUARTERS, MAINTENANCE, REPAIR, OR OTHER FACILITIES (HEREINAFTER REFERRED TO AS SPACE AND SERVICES), AT RATES TO BE DETERMINED BY THE ADMINISTRATOR FROM TIME TO TIME AND PROVIDED FOR IN REGULATIONS ISSUED BY HIM. SUCH RATES AND CHARGES SHALL APPROXIMATE COMMERCIAL CHARGES FOR COMPARABLE SPACE AND SERVICES."

THE REGULATIONS IMPLEMENTING SECTION 210(J), 40 U.S.C. 490(J), ARE SET FORTH IN 41 C.F.R. 101-21.000 ET SEQ. THEY PROVIDE FOR ESTABLISHMENT BY GSA AND APPROVAL BY OMB OF SLUCS, 41 C.F.R. 101-21.201, AND FOR ANNUAL REVIEW AND REVISION OF SLUCS PREVIOUSLY ESTABLISHED AND APPROVED, 41 C.F.R. 101-21.206. GSA ALSO PROVIDES ESTIMATES OF SLUCS TO BE ASSESSED AGAINST AGENCIES FOR SPACE RENTAL, BASED ON ESTIMATES OF SPACE TO BE USED AT APPROVED RATES IN ORDER FOR THE AGENCY TO BUDGET FOR SUCH PAYMENTS IN ITS APPROPRIATION REQUESTS. SFE 41 C.F.R. 101-21.207 AND 101-21.601.

THE AGRICULTURE AND RELATED AGENCIES APPROPRIATION ACT, SUPRA, APPROPRIATED FOR SCS CONSERVATION OPERATIONS AS FOLLOWS:

"CONSERVATION

"SOIL CONSERVATION SERVICE

"CONSERVATION OPERATIONS

"FOR NECESSARY EXPENSES FOR CARRYING OUT THE PROVISIONS OF THE ACT OF APRIL 27, 1935 (16 U.S.C. 590A-590F), INCLUDING PREPARATION OF CONSERVATION PLANS AND ESTABLISHMENT OF MEASURES TO CONSERVE SOIL AND WATER (INCLUDING FARM IRRIGATION AND LAND DRAINAGE AND SUCH SPECIAL MEASURES FOR SOIL AND WATER MANAGEMENT AS MAY BE NECESSARY TO PREVENT FLOODS AND THE SILTATION OF RESERVOIRS AND TO CONTROL AGRICULTURAL RELATED POLLUTANTS); OPERATION OF CONSERVATION PLANT MATERIAL CENTERS; CLASSIFICATION AND MAPPING OF SOIL; DISSEMINATION OF INFORMATION; PURCHASE AND ERECTION OR ALTERATION OF PERMANENT BUILDINGS; AND OPERATION AND MAINTENANCE OF AIRCRAFT, TO REMAIN AVAILABLE UNTIL EXPENDED, $206,057,000 * * * ." 89 STAT. 657-658.

INCLUDED IN THIS APPROPRIATION FOR "CONSERVATION OPERATIONS" ARE FUNDS FOR PAYMENT OF SLUCS TO GSA.

AS INDICATED IN THE HEARINGS ON THE DEPARTMENT OF AGRICULTURE'S FISCAL YEAR 1976 AND TRANSITION PERIOD BUDGET REQUEST, THE DEPARTMENT'S FINALIZED BUDGET REQUEST FOR SCS'S "CONSERVATION OPERATIONS" WAS $200,375,000. SUPPORTING DOCUMENTS PROVIDED INDICATED THAT THIS AMOUNT INCLUDED AN ESTIMATE OF $6,590,000 FOR GSA SPACE COSTS. SEE HEARINGS ON AGRICULTURE AND RELATED AGENCIES APPROPRIATIONS FOR 1976 BEFORE THE SUBCOMMITTEE ON AGRICULTURE AND RELATED AGENCIES OF THE HOUSE COMMITTEE ON APPROPRIATIONS, 94TH CONG., 1ST SESS., PT. 1 AT 136 AND 149 (1975).

THE BILL REPORTED BY THE HOUSE APPROPRIATIONS COMMITTEE (H.R. 8561, 94TH CONG.) CONTAINED $201,057,000 TO BE APPROPRIATED FOR SCS "CONSERVATION OPERATIONS." THE COMMITTEE'S REPORT ACCOMPANYING H.R. 8561, EXPLAINED THE $682,000 INCREASE OVER THE AMOUNT REQUESTED AS FOLLOWS:

"THE COMMITTEE CONTINUES TO BE SERIOUSLY CONCERNED ABOUT THE RESTRICTIVE FUNDING AND PERSONNEL LIMITATIONS UNDER WHICH THE SOIL CONSERVATION SERVICE HAS HAD TO OPERATE DURING THE PAST SEVERAL YEARS. WHILE THE RESTORATION OF THE AGRICULTURAL CONSERVATION PROGRAM SHOULD ADD A SUBSTANTIAL NUMBER OF POSITIONS TO THE SCS CEILING BECAUSE OF THE 5 PERCENT TRANSFER PROVISION FOR THE TECHNICAL ASSISTANCE, THE COMMITTEE FEELS ADDITIONAL STAFF ARE REQUIRED IF WE ARE TO ADEQUATELY PROTECT OUR LAND AND WATER RESOURCES. THEREFORE, THE COMMITTEE RECOMMENDS AN INCREASE OVER THE BUDGET REQUEST OF 150 POSITIONS AND $2,000,000 FOR FISCAL YEAR 1976. * * *

"THE COMMITTEE RECOMMENDS A REDUCTION BELOW THE BUDGET ESTIMATE OF $1,318,000 FOR GSA SPACE COSTS DURING FISCAL YEAR 1976 * * *." H.R. REPT. NO. 94-346, 58-59 (1975).

THE HOUSE OF REPRESENTATIVES PASSED H.R. 8561 ON JULY 14, 1976, PROVIDING THE AMOUNT OF THE COMMITTEE RECOMMENDATION FOR "CONSERVATION OPERATIONS." THE SENATE PASSED H.R. 8561 ON JULY 25, 1975, PROVIDING $206,057,000 FOR SCS "CONSERVATION OPERATIONS." THIS INCREASE IS EXPLAINED AS FOLLOWS:

"THE HOUSE PROVIDED A NET INCREASE OF $682,000 OVER THE BUDGET ESTIMATE. THIS RESULTED FROM AN INCREASE OF $2,000,000 AND A DECREASE OF $1,318,000 FOR REDUCED GSA SPACE COSTS. THE COMMITTEE HAS RECOMMENDED AN ADDITIONAL $5,000,000 TO BE USED PRIMARILY FOR SOIL SURVEY ACTIVITIES IN THOSE AREAS OF THE COUNTRY IN WHICH THE NEED FOR IMMEDIATE AND ADDITIONAL SOIL SURVEY DATA IS CRITICAL." S. REPT. NO. 94-293, 61-62 (1975).

THE CONFERENCE COMMITTEE AGREED TO THE AMOUNT PROPOSED BY THE SENATE FOR "CONSERVATION OPERATIONS," H.R. REPT. NO. 94-528, 14 (1975), AND THAT AMOUNT WAS APPROPRIATED BY THE CONGRESS.

APPARENTLY, SCS IS OF THE OPINION THAT SINCE THE APPROPRIATIONS COMMITTEE ON BOTH HOUSES OF THE CONGRESS INDICATED IN THEIR REPORTS THAT THEIR ACTION IN CHANGING AMOUNTS PROVIDED FOR "CONSERVATION OPERATIONS" WAS A RESULT, IN PART, OF REDUCING SCS'S BUDGET ESTIMATES FOR GSA SPACE RENTAL PAYMENTS BY $1,318,000, THE RESULTING BALANCE OF THE BUDGET ESTIMATE $5,272,000 PROVIDES A MAXIMUM AMOUNT WHICH IT IS AUTHORIZED TO PAY GSA. HOWEVER, GSA HAS EXPRESSED THE OPINION THAT THE ONLY LIMITATION PLACED UPON AMOUNTS WHICH MAY BE PAID TO IT FOR SLUCS BY SCS ARE THOSE SET FORTH IN SECTION 608 OF THE AGRICULTURE AND RELATED AGENCIES APPROPRIATION ACT OF 1976, 89 STAT. 667, WHICH PROVIDES:

"NO PART OF ANY APPROPRIATION CONTAINED IN THIS ACT SHALL BE AVAILABLE FOR PAYING TO THE ADMINISTRATOR OF THE GENERAL SERVICES ADMINISTRATION IN EXCESS OF 90 PERCENT OF THE STANDARD LEVEL USER CHARGE ESTABLISHED PURSUANT TO SECTION 210(J) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, FOR SPACE AND SERVICES."

WE MUST AGREE WITH GSA THAT THE 90 PERCENT FIGURE SPECIFIED IN SECTION 608 CONTROLS THE PAYMENT OF USER CHARGES BY SCS, NOTWITHSTANDING THE LARGER REDUCTIONS IN THE BUDGET ESTIMATES RECOMMENDED IN THE TWO COMMITTEE REPORTS. AS STATED IN NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY, 55 COMP.GEN. 812, 819-820 (1976):

"WE HAVE FREQUENTLY EXPRESSED THE VIEW THAT SUBDIVISIONS OF AN APPROPRIATION CONTAINED IN THE AGENCY'S BUDGET REQUEST OR IN COMMITTEE REPORTS ARE NOT LEGALLY BINDING UPON THE DEPARTMENT OR AGENCY CONCERNED UNLESS THEY ARE SPECIFIED IN THE APPROPRIATION ACT ITSELF. 17 COMP.GEN. 147 (1937); B-163058, MARCH 17, 1975; B-164031(3), APRIL 16, 1975; LTV AEROSPACE CORPORATION, 55 COMP.GEN. 307 (1975), 75-2 CPD 203. CF. B-149163, JUNE 27, 1962. SEE ALSO OUR REPORTS LDC-75-310 AND LCD-75-315, JANUARY 20, 1975, ENTITLED 'LEGALITY OF THE NAVY'S EXPENDITURES FOR PROJECT SANGUINE DURING FISCAL YEAR 1974.' THIS IS NOT TO SAY THAT LEGISLATIVE HISTORY IS IMMATERIAL. IT MERELY RECOGNIZES THAT A DEGREE OF FLEXIBILITY IS DESIRABLE IN THE FINANCIAL OPERATIONS OF FEDERAL DEPARTMENTS AND AGENCIES, AND THAT CONGRESS MAY AT ANY TIME READILY RESTRICT THAT FLEXIBILITY WITH RESPECT TO A PARTICULAR ITEM BY INSERTING THE DESIRED LIMITATION IN THE APPROPRIATION ACT. THE AGENCY IS BY NO MEANS FREE TO SIMPLY DISREGARD AN EXPRESSION IN PERTINENT COMMITTEE REPORTS. THE REALITIES OF THE ANNUAL APPROPRIATIONS PROCESS, AS WELL AS NONSTATUTORY ARRANGEMENTS SUCH AS REPROGRAMMING, PROVIDE SAFEGUARDS AGAINST ABUSE.

"OUR POSITION WAS STATED IN B-164031(3), SUPRA, AS FOLLOWS:

'OUR OFFICE HAS TRADITIONALLY TAKEN THE POSITION THAT, IN A STRICT LEGAL SENSE, THE TOTAL AMOUNT OF A LINE ITEM APPROPRIATION MAY BE APPLIED TO ANY OF THE PROGRAMS OR ACTIVITIES FOR WHICH IT IS AVAILABLE IN ANY AMOUNT ABSENT FURTHER RESTRICTIONS PROVIDED BY THE APPROPRIATION ACT OR ANOTHER STATUTE.'"

WHILE THE HOUSE APPROPRIATIONS COMMITTEE RECOMMENDED THAT SCS'S BUDGET ESTIMATES FOR GSA SPACE RENTAL BE REDUCED BY $1,318,000 (APPROXIMATELY 20 PERCENT) AND THIS RECOMMENDATION WAS CONCURRED IN BY THE SENATE, THIS DID NOT, IN OUR VIEW, SERVE TO LEGALLY RESTRICT THE AMOUNT WHICH SCS COULD PAY TO GSA SINCE THE LIMITATION WAS NOT SET FORTH IN THIS APPROPRIATION ACT ITSELF. THUS, IT IS OUR OPINION THAT SCS IS AUTHORIZED AND REQUIRED TO PAY FROM FUNDS APPROPRIATED BY PUB. L. NO. 94-122, 90 PERCENT OF THE SLUC ASSESSED BY GSA.