B-130109, JANUARY 23, 1957, 36 COMP. GEN. 526

B-130109, JANUARY 23, 1957, 36 COMP. GEN. 526

MARITIME MATTERS - ATOMIC SHIP CONSTRUCTION - APPROPRIATION AVAILABILITY - SPECIFIC V. GENERAL THE SPECIFIC APPROPRIATION OF $18,000,000 FOR THE CONSTRUCTION OF AN ATOMIC POWERED MERCHANT SHIP BY THE MARITIME ADMINISTRATION PROVIDED IN A SUPPLEMENTAL APPROPRIATION ACT, WHICH WAS PASSED AFTER THE GENERAL APPROPRIATION ACT FOR SHIP CONSTRUCTION FOR THE SAME FISCAL YEAR HAD BEEN ENACTED WITHOUT FUNDS FOR THE ATOMIC SHIP, PRECLUDES THE MARITIME ADMINISTRATION FROM USING ANY OF THE FUNDS IN THE GENERAL APPROPRIATION FOR THE ATOMIC SHIP AND FROM EXPENDING MORE FOR THIS CONSTRUCTION THAN THE AMOUNT PROVIDED IN THE SUPPLEMENTAL APPROPRIATION.

TO THE SECRETARY OF COMMERCE, JANUARY 23, 1957:

ON DECEMBER 17, 1956, THE ASSISTANT SECRETARY OF COMMERCE ( ADMINISTRATION) SUBMITTED FOR OUR CONSIDERATION A QUESTION CONCERNING THE CONSTRUCTION OF THE PROVISION IN THE SECOND SUPPLEMENTAL APPROPRIATION ACT, 1957, PUBLIC LAW 855, APPROVED JULY 31, 1956, CHAP. II, 70 STAT. 763, 764, READING AS FOLLOWS:

SHIP CONSTRUCTION: FOR AN ADDITIONAL AMOUNT FOR " SHIP CONSTRUCTION" FOR DESIGN, CONSTRUCTION, OUTFITTING, AND PREPARATION FOR OPERATION OF A NUCLEAR-POWERED MERCHANT SHIP, $18,000,000, TO REMAIN AVAILABLE UNTIL EXPENDED: * * * PROVIDED FURTHER, THAT THIS PARAGRAPH SHALL BE EFFECTIVE ONLY UPON ENACTMENT INTO LAW OF H.R. 6243, EIGHTY FOURTH CONGRESS. ITALICS ADDED.)

THE QUESTION PRESENTED IS WHETHER THE LANGUAGE OF THE ABOVE-QUOTED PROVISION LIMITS EXPENDITURES FOR THE DESIGN, CONSTRUCTION, ETC., OF THE NUCLEAR-POWERED MERCHANT SHIP TO $18,000,000.

THE DEPARTMENT OF COMMERCE AND RELATED AGENCIES APPROPRIATION ACT, 1957, PUBLIC LAW 604, APPROVED JUNE 20, 1956, 70 STAT. 314, 317, 46 U.S.C. 1241 NOTE, APPROPRIATED $82,700,000 FOR " SHIP CONSTRUCTION" AND SPECIFIED THE FOLLOWING PURPOSES WITHOUT SPECIFYING ANY AMOUNT FOR EACH PURPOSE:

(1) FOR PAYMENT OF CONSTRUCTION-DIFFERENTIAL SUBSIDY AND COST OF NATIONAL -DEFENSE FEATURES INCIDENT TO CONSTRUCTION OF SHIPS FOR OPERATION IN FOREIGN COMMERCE, AND THE COST OF NATIONAL DEFENSE FEATURES INCIDENT TO CONSTRUCTION OF VESSELS FOR DOMESTIC OPERATION;

(2) FOR PAYMENT OF CONSTRUCTION-DIFFERENTIAL SUBSIDY AND COST OF NATIONAL -DEFENSE FEATURES INCIDENT TO THE RECONSTRUCTION AND RECONDITIONING OF SHIPS UNDER TITLE V OF THE MERCHANT MARINE ACT, 1936, AS AMENDED:

(3) FOR RECONDITIONING AND BETTERMENT OF ONE SHIP IN THE NATIONAL DEFENSE RESERVE FLEET;

(4) FOR ACQUISITION OF USED SHIPS PURSUANT TO SECTION 510 OF THE MERCHANT MARINE ACT, 1936, AS AMENDED, AND THE PAYMENT OF COST OF NATIONAL-DEFENSE FEATURES INCORPORATED IN NEW TANKERS CONSTRUCTED TO REPLACE USED TANKERS; AND

(5) FOR RESEARCH, DEVELOPMENT, AND DESIGN EXPENSES INCIDENT TO NEW AND ADVANCED SHIP DESIGN, MACHINERY, AND EQUIPMENT.

THE LETTER EXPRESSES THE VIEW OF YOUR DEPARTMENT THAT UNDER PUBLIC LAW 604 THERE IS NO LEGAL LIMITATION ON THE AMOUNT THAT CAN BE EXPENDED FOR EACH OF THE FIVE SPECIFIED PURPOSES SO LONG AS THE AMOUNT EXPENDED FOR ALL SUCH PURPOSES DOES NOT EXCEED $82,700,000.

YOUR DEPARTMENT CONTENDS THAT IF THE APPROPRIATION TO BUILD THE NUCLEAR- POWERED MERCHANT SHIP HAD BEEN SOUGHT AT THE TIME WHEN YOUR BUDGET FOR FISCAL YEAR 1957 WAS SUBMITTED, THE PURPOSE OF BUILDING A NUCLEAR-POWERED MERCHANT SHIP WOULD HAVE BEEN STATED AS A SIXTH PURPOSE AND THE AGGREGATE SOUGHT FOR " SHIP CONSTRUCTION" WOULD HAVE BEEN INCREASED BY THE ESTIMATED COST OF BUILDING THE SHIP. THIS CONTENTION IS APPARENTLY BASED ON THE FACT THAT SIMILAR LANGUAGE WAS USED TO REQUEST FUNDS TO BUILD A NUCLEAR- POWERED TANKER AND TWO OTHER PROTOTYPE SHIPS IN THE 1957 BUDGET (I.E. IN YOUR DEPARTMENT'S REGULAR APPROPRIATION REQUEST) AND SUCH PURPOSE WAS STATED AS ONE OF THE PURPOSES FOR WHICH THE " SHIP CONSTRUCTION" APPROPRIATION WOULD BE USED. THE DEPARTMENT'S LETTER STATES THAT THIS PURPOSE WAS NOT INCLUDED IN YOUR REGULAR APPROPRIATION ACT, BECAUSE THERE WAS A DIFFERENCE OF CONGRESSIONAL OPINION AS TO THE AUTHORITY OF YOUR DEPARTMENT TO BUILD PROTOTYPE VESSELS, BUT THAT THERE IS NO REASON TO SUPPOSE THAT IF AN APPROPRIATION HAD BEEN MADE, THAT IT WOULD HAVE BEEN IN A FORM DIFFERENT FROM THE FORM IN WHICH IT WAS REQUESTED; FURTHER, THAT THE LANGUAGE MAKING THE SUPPLEMENTAL APPROPRIATION TO BUILD THE NUCLEAR- POWERED MERCHANT SHIP IS THE LANGUAGE REQUESTED BY YOUR DEPARTMENT, EXCEPT (AS FAR AS PERTINENT HERE) FOR THE AMOUNT.

UNDER THE CIRCUMSTANCES, YOUR DEPARTMENT IS OF THE OPINION THAT--- QUOTING FROM THE LETTER:

* * * THE CORRECT CONSTRUCTION OF THE SECOND SUPPLEMENTAL APPROPRIATION ACT, 1957, WITH RESPECT TO MARITIME ACTIVITIES, IS THAT A SIXTH PURPOSE IS ADDED TO THE SPECIFIED PURPOSES FOR WHICH THE , SHIP CONSTRUCTION" APPROPRIATION FOR THE FISCAL YEAR 1957 MAY BE USED; THAT THE AMOUNT OF THE " SHIP CONSTRUCTION" APPROPRIATION IS INCREASED BY $18,000,000 TO $100,700,000; THAT THERE IS NO LIMIT ON THE AMOUNT WHICH MAY BE EXPENDED FOR EACH OF THE SIX SPECIFIED PURPOSES SO LONG AS THE AMOUNT EXPENDED FOR ALL SUCH PURPOSES DOES NOT EXCEED $100,700,000; AND THAT MORE THAN $18,000,000 MAY BE EXPENDED FOR DESIGN, CONSTRUCTION, OUTFITTING, AND PREPARATION FOR OPERATION OF A NUCLEAR-POWERED MERCHANT VESSEL SO LONG AS NOT MORE THAN $100,700,000 IS EXPENDED FOR ALL SIX OF THE SPECIFIED PURPOSES.

OUR DECISION IS REQUESTED WHETHER WE AGREE WITH THE ABOVE-QUOTED CONSTRUCTION OF THE APPROPRIATION PROVISION IN QUESTION.

IT IS CLEAR FROM THE LEGISLATIVE HISTORY OF THE DEPARTMENT OF COMMERCE AND RELATED AGENCIES APPROPRIATION ACT, 1957, THAT NO PART OF THE FUNDS APPROPRIATED THEREIN FOR " SHIP CONSTRUCTION" WAS TO BE AVAILABLE FOR CONSTRUCTION OF ANY NUCLEAR-POWERED OR PROTOTYPE VESSELS THE AMOUNT REQUESTED FOR SUCH PURPOSES HAVING BEEN DENIED BY BOTH THE HOUSE AND SENATE PENDING THE ENACTMENT OF AUTHORIZING LEGISLATION. SEE PAGE 6, HOUSE REPORT NO. 2076, 84TH CONGRESS, 2D SESSION; PAGE 5, SENATE REPORT NO. 2039, 84TH CONGRESS, 2D SESSION; AND PAGE 6567, CONGRESSIONAL RECORD OF MAY 2, 1956.

THE ACT OF JULY 30, 1956 ( H.R. 6243), PUBLIC LAW 848, 70 STAT. 731, 46 U.S.C. 1206, AUTHORIZES FUNDS "TO BE" APPROPRIATED FOR THE CONSTRUCTION, OUTFITTING, ETC., OF A NUCLEAR-POWERED MERCHANT SHIP. THIS ACT, AS H.R. 6243, WAS BEFORE THE CONGRESS AT THE SAME TIME THE CONGRESS WAS CONSIDERING THE APPROPRIATION PROVISION (IN THE SECOND SUPPLEMENTAL APPROPRIATION ACT, 1957), WHICH MAKES FUNDS AVAILABLE FOR THE DESIGN, CONSTRUCTION, ETC., OF A NUCLEAR-POWERED SHIP AND WHICH AS ENACTED INTO LAW BECAME EFFECTIVE ONLY WHEN H.R. 6243 WAS ENACTED INTO LAW. HOWEVER, THE FUNDS IN THE DEPARTMENT OF COMMERCE AND RELATED AGENCIES APPROPRIATION ACT, 1957, FOR " SHIP CONSTRUCTION" WERE NOT MADE AVAILABLE BY EITHER OF THE TWO LAST CITED ACTS FOR CONSTRUCTION, ETC., OF A NUCLEAR-POWERED MERCHANT VESSEL. THEREFORE, WE HOLD THAT THE FUNDS APPROPRIATED FOR " SHIP CONSTRUCTION" IN YOUR DEPARTMENT'S REGULAR FISCAL YEAR 1957 APPROPRIATION (I.E. THE $82,700,000) ARE NOT AVAILABLE FOR THE PURPOSE IN QUESTION.

MOREOVER, ASIDE FROM THE NONAVAILABILITY OF YOUR REGULAR APPROPRIATION FOR THE REASONS SET FORTH ABOVE, IT IS A RULE OF LONG STANDING THAT AN APPROPRIATION MADE AVAILABLE FOR A SPECIFIC OBJECT IS AVAILABLE FOR THAT WHEN THE SPECIFIC APPROPRIATION TO WHICH AN EXPENSE IS CHARGEABLE IS EXHAUSTED, THE GENERAL APPROPRIATION CANNOT BE USED FOR THAT PURPOSE. COMP. GEN. 476; 5 ID. 399; 7 ID. 400; 10 ID. 440; 19 ID. 633; ID. 892. ALSO, WE HAVE HELD THAT THE INCLUSION OF THE WORDS "NOT TO XCEED" OR SIMILAR LANGUAGE IS NOT NECESSARY TO ESTABLISH A LIMITATION WHEN AN APPROPRIATION INCLUDES A SPECIFIC AMOUNT FOR A PARTICULAR OBJECT. COMP. GEN. 892; A-99732, JANUARY 13, 1939, B 5526, SEPTEMBER 14, 1939.

THE APPROPRIATION ACT IN QUESTION SPECIFICALLY PROVIDES $18,000,000 FOR DESIGN, CONSTRUCTION, OUTFITTING, AND PREPARATION FOR OPERATION OF A NUCLEAR-POWERED MERCHANT SHIP, THUS EARMARKING A SPECIFIC AMOUNT OF MONEY FOR A SPECIFIC PURPOSE. ACCORDINGLY, THE RULES CITED ABOVE WOULD ALSO BE FOR APPLICATION HERE.

IN VIEW OF THE FOREGOING, WE CANNOT AGREE WITH YOUR DEPARTMENT'S CONSTRUCTION OF THE APPROPRIATION PROVISION CONTAINED IN THE SECOND SUPPLEMENTAL APPROPRIATION ACT, 1957. UNDER EXISTING LAW NO MORE THAN $18,000,000 MAY BE EXPENDED BY YOUR DEPARTMENT FOR THE DESIGN, CONSTRUCTION, OUTFITTING, AND PREPARATION FOR OPERATION OF A NUCLEAR POWERED MERCHANT SHIP.