B-167034 September 1, 1976

B-167034 September 1, 1976

The Honorable James Abourezk United States Senate

Dear Senate Abourezk:

This is in response to your request for our opinion with respect to the proper interpretation of subsection (e) of the act commonly referred to as the "Anti-Deficiency Act," 31 U.S.C. Section 665(e) (1970).

You state that for the past several years you have offered an amendment to the annual defense authorization legislation to repeal the so-called "Feed and Forage Act," now codified in 41 U.S.C. Section 11 (1970). The Chairman of the House Armed Services Committee had requested the views of the Secretary of Defense on the proposed amendment to repeal 41 U.S.C. Section 11. In a letter to the Chairman from the Deputy Secretary of Defense, dated April 2, 1976, the Department of Defense (DOD) argued that none of the alternatives available to DOD if 41 U.S.C. Section 665(e), would be an adequate substitute for DOD's authority under 41 U.S.C. Section 11. DOD's letter reads in pertinent part as follows:

"The authority to apportion funds on a deficiency basis in the Anti-Deficiency Act (31 U.S.C. 665(e)) does not, as alleged, provided authority to incur a deficiency. It merely authorizes obligating funds at a deficiency rate under certain circumstances, e.g., a $2,000,000 appropriation can be obligated in its entirety at the end of the third quarter, but it does not provide authority of obligate one dollar more than $2,000,000."

You indicate that this interpretation by DOD is at direct variance with your view that 41 U.S.C. Section 11 is unnecessary since 31 U.S.C. Section 665(e) "authorizes incurring deficiencies in emergencies involving the satety of human life or the protection of property." In order to clarify the issue you have submitted the following four questions for our opinion:

"1. Does the Department of Defense (or any other Department for that matter) have authority under 31 U.S.C. 665(e) to obligate funds in exces [sic]of amounts appropriated. That is, does this section of the code premit DOD to incur obligations that make the submission of deficiency or supplemental estimate a necessity?

"2. Is the Department of Defense legally correct that 31 U.S.C. 665(a) merely authorizes obligating funds at a deficiency rate under certain circumstances?

"3. Under what typical kinds of circumstances has the authority of 31 U.S.C. 665(a) been used in the past? Has this authority ever been used to incur obligations in excess of amounts appropriated?

"4. Is there any other provision of law (except 41 U.S.C. 11) that would permit the Department of Defense to obligate funds in excess of amounts appropriated. if so, what is the pertinent law and for what does it permit the Department to obligate such funds?"

The so-called Feed and Forage Act, 41 U.S.C. Section 11 (1970), provides in pertinent part as follows:

"(a) No contract or purchase on behalf of the United States shall be made, unless the same is authorized by law or is under an appropriation adequate to its fulfillment, except in the Department of the Army, Navy, and Air Force, for clothing, subsistence, forage, fuel, quarters, transportation, or medical and hospital supplies, which, however, shall not exceed the necessities of the current year." (Emphasis supplied.)

Thus, this provision allows the Departments of the Army, Navy, and Air Force to enter into contracts and incur obligations for certain specified purposes. The basic question presented in your submission is whether subsection (e) of the Anit-Deficiency Act, supra, also authorizes DOD, as well as other departments, to incur similar deficiencies in excess of appropriations if needed to deal with emergencies involving the safety of human life or the protection of property.

The provision in question, 31 U.S.C. Section 665(e), reads in pertinent part as follows:

"(1) No apportionment or reapportionment, or request therefor by the hand of an agency, which, in the judgement apportionment or reapportionment, would indicate a necessity for a deficiency or supplemental estimate shall be made except upon a determination by such officer of agency head, as the cases may be, that such action is required because of (A) any laws enacted subsequent to the transmission to the Congress of the estimates for an appropriation which require expenditures beyond administrative control; or (B) emergencies involving the safety of human life, the protection of property, or the immediate welfare of individuals in cases where an appropriation has been made to enable the United States to make payment of, or contributions toward, sums which are required to be paid to individuals either in specific amounts fixed by Law or in accordance with formulas precribed by law."

In order to place in context the meaning and application of this provision, it is necessary to consider the language of 31 U.S.C. Section 665(c) (1970), which governs the typical situation where the exception set forth in subsection (a) do not apply. This subsection provides, in pertinent part, as follows:

"(1) Except as otherwise provided in this section, all appropriations of funds available for obligation for a definite period of time shall be so apportioned as to prevent obligation or expenditure thereof in a manner which would indicate a such period; and all appropriations or funds not limited to a definite period of time, and all authorizations to create obligations by contract in advance of appropriations, funds, and authorizations to create obligations by contract in advance of appropriations."

The term "apportionment" as used in subsections (c) and (e) refers to the subdivision of an appropriation, contract authorization or other statutory authorization into amounts available for specified periods, activities, functions, projects, objects, or combinations thereof. Thus, it can be seen that 31 U.S.C. Section 665(c) requires that appropriations available for obligation for a definite period of time be allocated or distributed so as to prevent the incurring of obligations and making of expenditures at a rate which "would indicate a necessity for deficiency or supplemental appropriations for such period," i.e., a rate which, if continued, would exhaust the appropriation prior to the expiration of the period for which the appropriation was made.

Subsection (e) is an exception to the rule in subsection (c) since it permits appropriations to be apportioned or allocated at a higher rate which, if maintained, might exhaust the appropriation prior to the end of the period thus indicating that a deficiency or a supplemental appropriation could become necessary. However, subsection (e) in no way authorize an agency of the Government actually to incur obligations in excess of the total amount of money apporpriated for a period. It only provides an exception to the general apportionment rule set out in subsection (c) that an appropriation be allocated so as to insure that it is not exhausted prematurely. Subsection (e) says nothing about increasing the total amount of the appropriation itself or authorizing the incurring of obligations in excess of the total amount appropriated. On the contrary, as noted above, apportionment only involves the subdivision of appropriations already enacted by Congress. It necessarily follows that the sum of the parts, as apportioned, could not exceed the total amount of the appropriations being apportioned.

Any deficiency that an agency incurs where obligations exceed total amounts appropriated, including a deficiency that arises in a stituation where it was determined that one of the exception set forth in subsection (e) was applicable, would constitute a violation of 31 U.S.C. Section 665(a) which provides that "no officer or employee of the United States shall make or authorize an expenditure from or create or authorize an obligation under any appropriation or fund in excess of the amount available therein." A violation of subsection (a) would have to be reported to the President and the Congress pursuant to 31 U.S.C. Section 665(i)(2)(1970).

Our Office has consistently adhered to this interpretation of the Anti-Deficiency Act. See 36 Comp. Gen. 699, 702 (1957), wherein we summarized the relevant legislative history.

In accordance with the foregoing, the answers to your four questions are as follows:

(1) Neither DOD nor any other department of agency of the Government has authority under 31 U.S.C. Section 665(e) to obligate funds in excess of amounts appropriated.

(2) DOD is legally correct that 31 U.S.C. Section 665(e) merely authorizes the obligation of funds at a deficiency rate in certain circumstances as specified in that provision.

(3) Our Office does not maintain any specific records with respect to the typical kinds of circumstances in which the authority of 31 U.S.C. Section 665(a) has been used in the past. As provided in that subsection, the officer making or the agency head requesting the apportionment is responsible for determing, on the basis of the facts in a particular case, whether the exceptions set forth in subsection (e) are applicable and thus permit a higher rate of expenditures then would otherwise be allowable. As explained above, the authority contained in subsection (e) could not and cannot be used to incur obligations in excess of the amount appropriated, since this subsection only deals with the permissible rate of expenditure, rather than the than the total amount available for obligation. Reliance on the authority contained in this provision could lead to a situation in which a deficiency is more likely to occur since a higher rate of expenditure might exhaust the entire appropriation prior to the expiration of the period the appropriation was intended to cover. However, in such a case, the incurring of any obligation or making of any expenditure in excess of the amount appropriated would constitute a violation of the Anti-Deficiency Act and would have to be reported as such.

4. With the exception of 41 U.S.C. Section 11, our Office is not aware of any other statutory provision that would permit DOD to obligate funds in excess of amounts appropriated.

We trust that the foregoing has been responsive to your request.

Sincerely your,

R. F. Xellar Acting Comptroller General of the United States