B-138311, JANUARY 21, 1959, 38 COMP. GEN. 501

B-138311, JANUARY 21, 1959, 38 COMP. GEN. 501

APPROPRIATIONS - ANTIDEFICIENCY ACT - REAPPORTIONMENT PROHIBITION THE APPORTIONMENT OR REAPPOINTMENT OF APPROPRIATIONS WHICH WILL NECESSITATE A DEFICIENCY OR SUPPLEMENTAL APPROPRIATION OR A DRASTIC CURTAILMENT OF GOVERNMENT SERVICES IN THE EVENT ADDITIONAL FUNDS ARE NOT APPROPRIATED BY THE CONGRESS IS PROHIBITED UNDER THE ANTIDEFICIENCY ACT, 31 U.S.C. 665, UNLESS SUCH ACTION IS REQUIRED BECAUSE OF THE ENACTMENT OF NEW LAWS OR CERTAIN SPECIFIED EMERGENCY SITUATIONS. THE ANTIDEFICIENCY ACT, 31 U.S.C. 665, IMPOSES UPON THE HEADS OF DEPARTMENTS AND AGENCIES A RESPONSIBILITY TO CONDUCT GOVERNMENT OPERATIONS DURING A FISCAL YEAR WITHIN THE LIMITS OF APPROPRIATIONS AND TO EXPEND SUCH APPROPRIATIONS AT A RATE WHICH WILL NOT EXHAUST THE FUNDS BEFORE THE END OF THE PERIOD FO WHICH THEY ARE APPROPRIATED.

TO THE POSTMASTER GENERAL, JANUARY 21, 1959:

THE ACTING POSTMASTER GENERAL IN LETTER OF DECEMBER 31, 1958 (REFERENCE: 800), REFERS TO OUR DECISION OF APRIL 12, 1957, B-131361, 36 COMP. GEN. 699, TO YOU, RELATING TO SECTION 3679, REVISED STATUTES, AS AMENDED (31 U.S.C. 665), COMMONLY KNOWN AS THE ANTIDEFICIENCY ACT, AND PRESENTS CERTAIN QUESTIONS FOR OUR CONSIDERATION IN CONNECTION WITH THE CITED ACT.

ON THE DATE OF OUR DECISION TO YOU THE ANTIDEFICIENCY ACT PROVIDED, IN PERTINENT PART, AS FOLLOWS--- QUOTING FROM THE UNITED STATES CODE:

(C) (1) EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION, ALL APPROPRIATIONS OR 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 NECESSITY FOR DEFICIENCY OR SUPPLEMENTAL APPROPRIATIONS FOR SUCH PERIOD; * * *

(D) (2) ANY APPROPRIATION AVAILABLE TO AN AGENCY, WHICH IS REQUIRED TO BE APPORTIONED UNDER SUBSECTION (C) OF THIS SECTION, SHALL BE APPORTIONED OR REAPPORTIONED IN WRITING BY THE DIRECTOR OF THE BUREAU OF THE BUDGET. THE HEAD OF EACH AGENCY TO WHICH ANY SUCH APPROPRIATION IS AVAILABLE SHALL SUBMIT TO THE BUREAU OF THE BUDGET INFORMATION, IN SUCH FORM AND MANNER AND AT SUCH TIME OR TIMES AS THE DIRECTOR MAY PRESCRIBE, AS MAY BE REQUIRED FOR THE APPORTIONMENT OF SUCH APPROPRIATION. * * *

(E) (1) NO APPORTIONMENT OR REAPPORTIONMENT WHICH, IN THE JUDGMENT OF THE OFFICER MAKING SUCH APPORTIONMENT OR REAPPORTIONMENT, WOULD INDICATE A NECESSITY FOR A DEFICIENCY OR SUPPLEMENTAL ESTIMATE SHALL BE MADE EXCEPT UPON A DETERMINATION BY SUCH OFFICER 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 FORMULAE PRESCRIBED BY LAW.

IN OUR DECISION OF APRIL 12, 1958, WE SAID, IN CONNECTION WITH THE ABOVE PROVISIONS, THAT:

A DRASTIC CURTAILMENT TOWARD THE CLOSE OF A FISCAL YEAR OF OPERATIONS CARRIED ON UNDER A FISCAL YEAR APPROPRIATION IS A PRIMA FACIE INDICATION OF A FAILURE TO SO APPORTION AN APPROPRIATION "AS TO PREVENT OBLIGATION OR EXPENDITURE THEREOF IN A MANNER WHICH WOULD INDICATE A NECESSITY FOR DEFICIENCY OR SUPPLEMENTAL APPROPRIATIONS FOR SUCH PERIOD.' IN OUR VIEW, THIS IS THE VERY SITUATION THE AMENDMENT OF THE LAW IN 1950 WAS INTENDED TO REMEDY. THIS VIEW IS ENTIRELY CONSISTENT WITH THE VIEWS EXPRESSED IN THE JOINT REPORT DATED JUNE 5, 1947, OF THE BUREAU OF THE BUDGET AND THE GENERAL ACCOUNTING OFFICE. IN VIEW THEREOF AND THE LEGISLATIVE HISTORY OF THE ANTI-DEFICIENCY ACT SET OUT ABOVE, SUBSECTION (C) (1) OF THE ACT MUST BE, AND IS, CONSTRUED AS A MANDATE OF THE CONGRESS THAT FISCAL YEAR APPROPRIATIONS BE SO APPORTIONED AS TO PREVENT OBLIGATION OR EXPENDITURE THEREOF IN A MANNER WHICH WOULD INDICATE THE NECESSITY FOR EITHER A DEFICIENCY OR SUPPLEMENTAL APPROPRIATION OR A DRASTIC CURTAILMENT OF THE ACTIVITY FOR WHICH AN APPROPRIATION IS MADE.

IF IT IS DETERMINED BY THE CONGRESS THAT THE DEFICIENCY APPROPRIATION IS NECESSARY FOR " OPERATIONS" OR IF THE SERVICES OF THE POST OFFICE DEPARTMENT ARE DRASTICALLY CURTAILED IN THE EVENT NO DEFICIENCY APPROPRIATION IS MADE, THERE COULD BE NO QUESTION BUT THAT THE DIRECTOR OF THE BUREAU OF THE BUDGET HAD NOT COMPLIED WITH THE REQUIREMENTS OF SUBSECTION (C) (1) OF SECTION 3679, REVISED STATUTES, AS AMENDED, 31 U.S.C. 665. IT SHOULD BE NOTED, HOWEVER, THAT THE PENAL PROVISION CONTAINED IN SUBSECTION (I) (1) OF THE ACT IS APPLICABLE ONLY TO VIOLATIONS OF SUBSECTIONS (A), (B), OR (H) OF THE ACT AND NOT TO SUBSECTION (C) (1).

THE HOUSE HEARINGS ON THE POST OFFICE DEPARTMENT'S REQUEST FOR SUPPLEMENTAL FUNDS FOR OPERATIONS OF 1957 SHOW THAT, WHEN THE DEPARTMENT REQUESTED THE REAPPORTIONMENT OF ITS FUNDS, IT DID SO IN THE BELIEF THAT THE REQUESTED PATTERN OF MANAGEMENT OF ITS FUNDS FOR THE FISCAL YEAR WOULD RESULT IN THE NECESSITY FOR A DEFICIENCY OR SUPPLEMENTAL APPROPRIATION. SUCH ACTION IS NOT TECHNICALLY A VIOLATION OF ANY SPECIFIC PROVISION OF THE ANTI-DEFICIENCY ACT. HOWEVER, IT IS NOT CONSISTENT WITH THE SPIRIT AND PURPOSE OF THE ACT. ( ITALICS SUPPLIED.)

SUBSEQUENT TO OUR DECISION OF APRIL 12 THE CONGRESS, IN SECTION 1401 OF THE SUPPLEMENTAL APPROPRIATION ACT, 1958 ( PUBLIC LAW 85-170), APPROVED AUGUST 28, 1957, 71 STAT. 426, 440, 31 U.S.C. 665, AMENDED SUBSECTION (E) (1) OF THE ANTIDEFICIENCY ACT TO MAKE IT APPLICABLE TO THE HEAD OF THE AGENCY REQUESTING OR RECOMMENDING AN APPORTIONMENT OR REAPPORTIONMENT.

THE ACTING POSTMASTER GENERAL SAYS THAT AS YOUR DEPARTMENT CONSTRUES THE AMENDED LAW IN THE LIGHT OF OUR DECISION OF APRIL 12, THE CONGRESS HAS IMPOSED A DUTY ON THE POSTMASTER GENERAL IMMEDIATELY TO PLACE IN EFFECT A CURTAILMENT OF POSTAL SERVICES ON A NATIONWIDE BASIS PRIOR TO A REVIEW BY THE CONGRESS OF THE MERITS OF EACH CASE, WHEN IT IS NECESSARY TO HAVE ADDITIONAL FUNDS AVAILABLE TO CARRY ON NORMAL POSTAL SERVICES FOR REASONS OTHER THAN THOSE PROVIDED FOR IN SUBSECTION (E) (1). HE ADVISES THAT THE POST OFFICE DEPARTMENT SOON WILL HAVE ITS APPROPRIATIONS FOR THE FISCAL YEAR 1960 UNDER DISCUSSION WITH COMMITTEES OF THE CONGRESS AND HENCE IT IS NECESSARY THAT YOUR DEPARTMENT HAVE A CLEAR UNDERSTANDING OF THE SITUATION AS APPLIED TO THE POSTMASTER GENERAL. ACCORDINGLY, HE REQUESTS OUR DECISION WITH RESPECT TO THE FOLLOWING QUESTIONS:

IN THE EVENT ADDITIONAL FUNDS ARE NECESSARY TO PERMIT THE POSTMASTER GENERAL TO CARRY ON NORMAL POSTAL SERVICES, IS HE PROHIBITED FROM SEEKING AN APPORTIONMENT OR REAPPORTIONMENT OF FUNDS WHEN SUCH APPORTIONMENT OR REAPPORTIONMENT WILL REQUIRE (1) A DEFICIENCY OR SUPPLEMENTAL APPROPRIATION, OR (2) DRASTIC CURTAILMENT OF SERVICES IN THE EVENT ADDITIONAL FUNDS ARE NOT APPROPRIATED BY CONGRESS?

IF THE FOREGOING QUESTION IS ANSWERED IN THE AFFIRMATIVE, YOUR DECISION IS THEN REQUESTED AS TO WHETHER, IN THE CIRCUMSTANCES STATED, THE POSTMASTER GENERAL MUST CURTAIL HIS EXPENDITURES TO THE POINT NECESSARY TO OPERATE WITHIN THE FRAMEWORK OF THE FUNDS AVAILABLE THROUGHOUT THE REMAINDER OF THE FISCAL YEAR EVEN THOUGH SUCH ACTION MAY ENTAIL A CUT IN SERVICES PRIOR TO REQUESTING AN APPORTIONMENT OR REAPPORTIONMENT OF FUNDS NECESSARY TO CARRY ON NORMAL POSTAL SERVICES?

IF BOTH THE FOREGOING QUESTIONS ARE ANSWERED IN THE AFFIRMATIVE AS GENERAL RULES, WOULD THE ANSWER OR ANSWERS BE DIFFERENT IF THE NEED FOR ADDITIONAL FUNDS AROSE FROM ANY OF THE FOLLOWING CONDITIONS BEYOND THE CONTROL OF THE DEPARTMENT:

(A) INCREASED MAIL VOLUME ABOVE ESTIMATED LEVELS ON WHICH THE APPROPRIATION WAS BASED?

(B) SEVERE AND PROLONGED ADVERSE WEATHER CONDITIONS MATERIALLY INCREASING THE COST OF TRANSPORTING, DELIVERY, OR OTHERWISE HANDLING THE MAIL?

(C) PROLONGED STRIKES BY EMPLOYEES OF COMMON CARRIERS NECESSITATING THE MOVEMENT OF MAIL BY MORE EXPENSIVE MEANS?

IN VIEW OF THE PLAIN PROVISIONS OF SUBSECTION (E) (1) OF THE ANTI DEFICIENCY ACT, AS AMENDED BY PUBLIC LAW 85-170, AND IN THE LIGHT OF OUR DECISION OF APRIL 12, 1957, B-131361, 36 COMP. GEN. 699, TO YOU, IT IS CLEAR THAT THE POSTMASTER GENERAL IS PROHIBITED FROM REQUESTING AN APPORTIONMENT OR REAPPORTIONMENT OF AVAILABLE FUNDS WHICH WILL REQUIRE (1) A DEFICIENCY OR SUPPLEMENTAL APPROPRIATION, OR (2) A DRASTIC CURTAILMENT OF SERVICES IN THE EVENT ADDITIONAL FUNDS ARE NOT APPROPRIATED BY THE CONGRESS, UNLESS THE APPORTIONMENT OR REAPPORTIONMENT IS REQUIRED FOR ANY OF THE REASONS SET FORTH IN SUBSECTION (E) (1). THE ACTING POSTMASTER GENERAL'S FIRST QUESTION IS ANSWERED ACCORDINGLY.

AS TO THE SECOND QUESTION, IT IS YOUR RESPONSIBILITY TO TAKE WHATEVER STEPS ARE NECESSARY SO THAT THE OPERATIONS OF THE POST OFFICE DEPARTMENT ARE CONDUCTED THROUGHOUT THE ENTIRE FISCAL YEAR WITHIN THE FRAMEWORK OF THE FUNDS MADE AVAILABLE EVEN THOUGH SUCH ACTION MAY ENTAIL AN ADJUSTMENT IN SERVICES, SINCE, AS WE INDICATED ABOVE AND IN OUR LETTER OF APRIL 12, THE OBLIGATION OR EXPENDITURE OF A FISCAL YEAR APPROPRIATION SHOULD BE AT A RATE WHICH WILL NOT EXHAUST THE APPROPRIATION PRIOR TO THE END OF THE PERIOD FOR WHICH IT WAS MADE. THE ACTING POSTMASTER GENERAL'S SECOND QUESTION IS ANSWERED ACCORDINGLY.

THE ANSWERS TO THE FIRST TWO QUESTIONS WOULD NOT BE DIFFERENT IF THE NEED FOR ADDITIONAL FUNDS AROSE FROM ANY OF THE CONDITIONS SET FORTH IN PARTS (A), (B) AND (C) OF THE THIRD QUESTION IN THE ACTING POSTMASTER GENERAL'S LETTER UNLESS IT IS CLEARLY SHOWN AND DETERMINED ON THE BASIS OF THE FACTS IN A PARTICULAR CASE THAT THE REQUESTED APPORTIONMENT OR REAPPORTIONMENT FALLS WITHIN THE EXCEPTIONS SET FORTH IN SUBSECTION (E) (1). THE THIRD QUESTION IS ANSWERED ACCORDINGLY.