B-114801, FEB 12, 1980

B-114801, FEB 12, 1980

OFFICE OF GENERAL COUNSEL

JORDAN LUKE, DEPARTMENT OF THE TREASURY:

THIS RESPONDS TO YOUR LETTER OF JANUARY 14, 1980, WHICH REQUESTS CLARIFICATION OF OUR MEMORANDUM OPINION (B-114801-O.M., NOVEMBER 19, 1979) CONCERNING THE BUREAU OF ENGRAVING AND PRINTING REVOLVING FUND.

SECTION 2(E) OF THE ACT OF AUGUST 4, 1950, CH. 558, 64 STAT. 409, 31 U.S.C. SEC. 181AE), PROVIDES THAT ANY SURPLUS ACCRUING TO THE FUND IN ANY FISCAL YEAR SHALL BE PAID INTO THE GENERAL FUND OF THE TREASURY AS MISCELLANEOUS RECEIPTS, EXCEPT THAT SUCH SURPLUS MAY FIRST BE APPLIED TO RESTORE ANY IMPAIRMENT OF CAPITAL RESULTING FROM VARIATIONS BETWEEN PRICES CHARGED AND THE ACTUAL COSTS OF PERFORMING WORK OR SERVICES.

THE ACT OF JULY 31, 1977, PUB. L. NO. 95-81, 91 STAT. 341, 342, APPROPRIATED TO THE BUREAU:

"FOR ADDITIONAL CAPITAL FOR THE BUREAU OF ENGRAVING AND PRINTING FUND ESTABLISHED BY THE ACT OF AUGUST 4, 1950 (31 U.S.C. 181-181E) $5,000,000, TO REMAIN AVAILABLE UNTIL EXPENDED, AND, NOTWITHSTANDING SECTION 2(E) OF SAID ACT, THE FULL AMOUNT OF PAYMENTS MADE SINCE JULY 1, 1974, AND HEREAFTER, FOR WORK AND SERVICES IN ACCORDANCE WITH SECTION 1 OF THE ACT, AT PRICES ADJUSTED TO PERMIT THE ACQUISITION OF CAPITAL EQUIPMENT AND PROVIDE FUTURE WORKING CAPITAL."

YOUR LETTER REFERS TO RECENT DISCUSSIONS BETWEEN OUR STAFFS REGARDING THE PROPER INTERPRETATION OF OUR PRIOR OPINION AS TO THE IMPLIED REPEAL OF SECTION 2(E).

OUR OPINION WAS NOT MEANT TO SUGGEST THAT PUB. L. NO. 95-81 CONSTITUTED A REPEAL OF 31 U.S.C. SEC. 181AE). IT STATED ONLY THAT THE APPROPRIATIONS ACT CREATED A NEW BUT LIMITED EXCEPTION TO THE REQUIREMENTS OF 31 U.S.C. SEC. 181AE) IN THE CASE OF AMOUNTS NECESSARY TO PROVIDE FOR CAPITAL NEEDS. THUS, OUR OPINION OBSERVED, AT PAGES 3 4:

"*** PUB. L. NO. 95-81 SUPERSEDES THE 1950 ACT TO THE EXTENT THAT THE BUREAU MAY RETAIN PAYMENTS RECEIVED, INCLUDING 'EXCESS' OPERATING INCOME (I.E., INCOME BEYOND THAT RETAINABLE UNDER THE 1950 ACT) IN AMOUNTS SUFFICIENT TO 'PERMIT THE ACQUISITION OF CAPITAL EQUIPMENT AND PROVIDE FOR FUTURE WORKING CAPITAL.' ***"

WE SUGGESTED, AT PAGE 5, THAT IF AMOUNTS BEING WITHHELD PURSUANT TO PUB. L. NO. 95-81 WERE DETERMINED TO BE EXCESSIVE FOR SUCH PURPOSES, THE EXCESS SHOULD BE PAID INTO MISCELLANEOUS RECEIPTS PURSUANT TO 31 U.S.C. SEC. 181AE). WE POINTED OUT THAT GAO COULD NOT REQUIRE THE BUREAU TO DEPOSIT ANY AMOUNT INTO MISCELLANEOUS RECEIPTS, SINCE THERE IS NO LEGAL REQUIREMENT AS TO AMOUNTS NEEDED FOR CAPITAL PURPOSES. THIS DOES NOT, OF COURSE, PRECLUDE THE TREASURY DEPARTMENT FROM ESTABLISHING PROCEDURES AND CONTROLS TO GOVERN THE AMOUNTS TO BE RETAINED FOR CAPITAL PURPOSES UNDER PUB. L. NO. 95-81.