B-121666, DECEMBER 7, 1954, 34 COMP. GEN. 278

B-121666, DECEMBER 7, 1954, 34 COMP. GEN. 278

APPROPRIATIONS - ATOMIC ENERGY COMMISSION - AVAILABILITY FOR NEW CONSTRUCTION THE CONSTRUCTION RIDER IN THE 1955 ATOMIC ENERGY COMMISSION APPROPRIATION ACT PROHIBITS THE USE OF FUNDS FOR ANY PROJECT NOT INCLUDED IN THE 1955 BUDGET ESTIMATES SO THAT THE UNOBLIGATED BALANCE OF PLANT AND EQUIPMENT FUNDS IN THE 1955 ACT, WHICH IS AVAILABLE UNTIL EXPENDED, MAY NOT BE USED FOR NEW CONSTRUCTION PROJECTS PROGRAMMED FOR THE FISCAL YEAR 1956 WHICH WERE NOT INCLUDED IN THE 1955 ESTIMATES. THE TERM "BUDGET FOR THE CURRENT FISCAL YEAR" USED IN THE CONSTRUCTION RIDER IN THE 1955 ATOMIC ENERGY COMMISSION APPROPRIATION ACT PROHIBITING THE USE OF APPROPRIATIONS FOR NEW CONSTRUCTION PROJECTS UNLESS AN ESTIMATE THEREFOR HAS BEEN INCLUDED IN THE BUDGET FOR THE CURRENT FISCAL YEAR HAS REFERENCE TO THE BUDGET AND THE FISCAL YEAR FOR WHICH APPROPRIATIONS ARE BEING MADE.

ACTING COMPTROLLER GENERAL WEITZEL TO THE CHAIRMAN, UNITED STATES ATOMIC ENERGY COMMISSION, DECEMBER 7, 1954:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 23, 1954, REQUESTING AN EXPRESSION OF THE VIEWS OF THIS OFFICE AS TO THE USE OF THE APPROPRIATION " PLANT AND EQUIPMENT, ATOMIC ENERGY COMMISSION" CONTAINED IN THE INDEPENDENT OFFICES APPROPRIATION ACT, 1955, PUBLIC LAW 428, 83D CONGRESS, 68 STAT. 272, 276, WHICH IS AVAILABLE UNTIL EXPENDED, FOR CONSTRUCTION PROJECTS TO BE BEGUN IN FISCAL YEAR 1956 IN VIEW OF SECTION 261 OF THE ATOMIC ENERGY ACT OF 1954, PUBLIC LAW 703, 83D CONGRESS, 68 STAT. 919, 960, WHICH PROVIDES, IN PART, AS FOLLOWS:

APPROPRIATIONS.--- THERE ARE HEREBY AUTHORIZED TO BE APPROPRIATED SUCH SUMS AS MAY BE NECESSARY AND APPROPRIATE TO CARRY OUT THE PROVISIONS AND PURPOSES OF THIS ACT EXCEPT SUCH AS MAY BE NECESSARY FOR ACQUISITION OR CONDEMNATION OF ANY REAL PROPERTY OR ANY FACILITY OR FOR PLANT OR FACILITY ACQUISITION, CONSTRUCTION, OR EXPANSION. * * * ( ITALICS SUPPLIED.)

THIS SECTION 261 CLEARLY DOES NOT AUTHORIZE APPROPRIATIONS FOR ACQUISITION OR CONDEMNATION OF ANY REAL PROPERTY OR ANY FACILITY OR FOR PLANT OR FACILITY ACQUISITION, CONSTRUCTION, OR EXPANSION AND ANY NEW APPROPRIATIONS FOR SUCH PURPOSES WOULD BE SUBJECT TO A POINT OF ORDER UNDER THE RULES OF PROCEDURE OF BOTH HOUSES OF THE CONGRESS IN THE ABSENCE OF AUTHORIZING LANGUAGE. HOWEVER, THIS PROVISION OF LAW HAS NO EFFECT ON THE AVAILABILITY OF FUNDS ONCE THEY HAVE BEEN APPROPRIATED. SINCE THE UNOBLIGATED BALANCE OF THE 1955 APPROPRIATION FOR PLANT AND EQUIPMENT, WHICH IS AVAILABLE UNTIL EXPENDED IS SUFFICIENT TO COVER THE PLANT AND EQUIPMENT NEEDS FOR FISCAL YEAR 1956, THE FOLLOWING SPECIFIC QUESTION IS PRESENTED IN YOUR LETTER:

SPECIFICALLY, ASSUMING THAT NO AUTHORIZING LEGISLATION IS REQUESTED OR ENACTED FOR OUR 1956 CONSTRUCTION PROGRAM, THAT ESTIMATES FOR ALL NEW CONSTRUCTION PROJECTS TO BE STARTED IN FISCAL YEAR 1956 ARE INCLUDED IN THE 1956 BUDGET IN COMPLIANCE WITH THE CONSTRUCTION RIDER, AND THAT THE 1956 APPROPRIATION ACT IS ENACTED WITHOUT DELETION OF ANY OF THOSE PROJECTS, WILL THE PLANT AND EQUIPMENT FUNDS NOW ON HAND BE AVAILABLE FOR THESE NEW CONSTRUCTION PROJECTS DURING FISCAL YEAR 1956?

THE CONSTRUCTION RIDER REFERRED TO IN YOUR QUESTION, WHICH RIDER IS CONTAINED IN THE 1955 APPROPRIATION " PLANT AND EQUIPMENT," READS, IN PART, AS FOLLOWS:

PROVIDED FURTHER, THAT NO PART OF THIS APPROPRIATION SHALL BE USED--

(A) TO START ANY NEW CONSTRUCTION PROJECT FOR WHICH AN ESTIMATE WAS NOT INCLUDED IN THE BUDGET FOR THE CURRENT FISCAL YEAR UNLESS IT BE A SUBSTITUTE THEREFORE WITHIN THE LIMITS OF COST INCLUDED IN THE BUDGET; * * * (ITALICS SUPPLIED.)

IT IS CONTENDED IN YOUR LETTER THAT THE TERM "BUDGET FOR THE CURRENT FISCAL YEAR" AS USED IN THAT CONSTRUCTION RIDER REFERS TO THE BUDGET FOR THE FISCAL YEAR CURRENT WHEN THE CONSTRUCTION BEGINS. IN OTHER WORDS, YOU CONTEND THAT THE 1955 APPROPRIATION IS AVAILABLE UNTIL EXPENDED FOR ANY PLANT AND EQUIPMENT NEEDS SUBJECT ONLY TO A CONDITION THAT ESTIMATES FOR SUCH NEEDS BE INCLUDED IN THE BUDGET FOR THE FISCAL YEAR WHEN THE NEED ARISES, PROVIDED THAT NO POSITIVE ACTION TO THE CONTRARY IS TAKEN BY THE CONGRESS. THE ANSWER TO THE QUESTION DEPENDS SOLELY UPON WHAT WAS INTENDED BY THE CONGRESS BY THE USE OF THE TERM "BUDGET FOR THE CURRENT FISCAL YEAR.'

THE CONSTRUCTION RIDER APPEARS TO HAVE BEEN INSERTED FOR THE FIRST TIME IN THE APPROPRIATION FOR THE ATOMIC ENERGY COMMISSION FOR THE FISCAL YEAR 1950 CONTAINED IN THE INDEPENDENT OFFICES APPROPRIATION ACT, 1950, PUBLIC LAW 266, 81ST CONGRESS, 63 STAT. 631, 634, AND HAS BEEN REPEATED IN THE APPROPRIATIONS FOR ALL SUBSEQUENT FISCAL YEARS. WHILE SOME MINOR CHANGES IN THE LANGUAGE USED HAVE BEEN MADE, THE TERM "CURRENT FISCAL YEAR" HAS BEEN USED IN ALL OF THE RIDERS. IT APPEARS THAT ESTIMATES HAVE BEEN INCLUDED IN THE BUDGET FOR EACH FISCAL YEAR FOR THE COMPLETE CONSTRUCTION PROGRAM FOR THE ENSUING FISCAL YEAR, AND THE CONGRESS EACH FISCAL YEAR HAS REAPPROPRIATED THE ENTIRE UNEXPENDED BALANCE OF PRIOR YEAR APPROPRIATIONS FOR THAT PURPOSE AND APPROPRIATED WHAT NEW MONEY WAS DEEMED NECESSARY. OTHER WORDS, THE CONSTRUCTION PROGRAM, INCLUDING THE PRIOR AUTHORIZATION AS WELL AS THE PROPOSED NEW AUTHORIZATION, WAS CONSIDERED AS A COMPLETE UNIT EACH FISCAL YEAR. WHILE THIS INDICATES RATHER STRONGLY THAT WHEN THE CONGRESS USED THE TERM "BUDGET FOR THE CURRENT FISCAL YEAR" IN THE CONSTRUCTION RIDER, IT REFERRED ONLY TO THE BUDGET FOR WHICH APPROPRIATIONS WERE THEN BEING MADE, THERE IS ANOTHER POINT WHICH REMOVES ANY DOUBT IN THE MATTER.

THE APPROPRIATIONS FOR THE CONSTRUCTION PROGRAM OF THE COMMISSION WERE MADE ON A FISCAL YEAR BASIS FOR THE FISCAL YEARS 1950 THROUGH 1953 AND COULD BE OBLIGATED ONLY DURING THE PARTICULAR FISCAL YEAR FOR WHICH APPROPRIATED. SINCE SUCH FUNDS COULD NOT BE OBLIGATED IN A SUBSEQUENT FISCAL YEAR EVEN IF ESTIMATES WERE INCLUDED IN THE BUDGET FOR EITHER THE CURRENT FISCAL YEAR OR SUBSEQUENT FISCAL YEARS, THE TERM "CURRENT FISCAL YEAR" COULD MEAN ONLY THE FISCAL YEAR FOR WHICH THE APPROPRIATIONS WERE ORIGINALLY BEING MADE. THE FACT THAT THE PLANT AND EQUIPMENT APPROPRIATIONS HAVE BEEN MADE AVAILABLE UNTIL EXPENDED FOR THE FISCAL YEARS 1954 AND 1955 DOES NOT IN ANY WAY INDICATE THAT THE CONGRESS INTENDED TO USE THE TERM "CURRENT FISCAL YEAR" IN ANY DIFFERENT SENSE THAN IT HAD THERETOFORE BEEN USED.

ALSO, IT WAS DURING THE PREPARATION OF THE BUDGET FOR THE FISCAL YEAR 1950 THAT THE DIRECTOR OF THE BUREAU OF THE BUDGET, BY LETTER OF DECEMBER 24, 1948, TO THIS OFFICE PROPOSED TO USE THE PHRASES "NEXT PRECEDING FISCAL YEAR," "CURRENT FISCAL YEAR" AND "NEXT SUCCEEDING FISCAL YEAR" RATHER THAN, FOR EXAMPLE, THE NUMERICAL DESIGNATIONS "FISCAL YEAR 1949," "FISCAL YEAR 1950" AND ,FISCAL YEAR 1951," RESPECTIVELY, THROUGHOUT THE BUDGET IN APPROPRIATION LANGUAGE FOR THE FISCAL YEAR 1950. IN OTHER WORDS, THE PHRASE "CURRENT FISCAL YEAR" WOULD MEAN THE FISCAL YEAR FOR WHICH THE BUDGET IS PREPARED AND USUALLY WOULD BE THE FISCAL YEAR SPECIFIED IN THE TITLES OF THE RESPECTIVE APPROPRIATION ACTS. IN REPLY, THE GENERAL ACCOUNTING OFFICE, BY LETTER DATED JANUARY 3, 1949, B-82455, STATED THAT IT WAS ASSUMED THAT THE CONGRESSIONAL APPROPRIATION COMMITTEES WOULD BE APPRISED OF THE PROPOSED CHANGES AND THE PURPOSES THEREOF, AND THAT NO APPARENT DIFFICULTIES FROM THE CHANGE IN TERMINOLOGY WOULD ARISE IN THE AUDIT OF ACCOUNTS UNDER THE APPROPRIATIONS INVOLVED.

ACCORDINGLY, THE 1955 APPROPRIATION " PLANT AND EQUIPMENT, ATOMIC ENERGY COMMISSION" IS NOT AVAILABLE FOR ANY CONSTRUCTION PROJECT FOR WHICH AN ESTIMATE WAS NOT INCLUDED IN THE BUDGET FOR THE CURRENT FISCAL YEAR, I.E., FISCAL YEAR 1955, EXCEPT FOR SUBSTITUTES. THEREFORE, IN ANSWER TO YOUR SPECIFIC QUESTION, I HAVE TO ADVISE THAT, UNDER THE CIRCUMSTANCES ASSUMED THEREIN, THE PLANT AND EQUIPMENT FUNDS NOW ON HAND WILL NOT BE AVAILABLE FOR NEW CONSTRUCTION PROJECTS DURING FISCAL YEAR 1956. YOUR PRIME QUESTION BEING ANSWERED IN THE NEGATIVE, CONSIDERATION OF YOUR SUBSIDIARY QUESTION IS RENDERED UNNECESSARY.