B-146672, NOV. 8, 1961

B-146672, NOV. 8, 1961

TO THE SECRETARY OF COMMERCE:

A LETTER DATED OCTOBER 9, 1961, FROM THE GENERAL COUNSEL OF THE DEPARTMENT OF COMMERCE, REQUESTS TO BE ADVISED WHETHER, UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED, WE WOULD OBJECT TO THE TRANSFER BY THE MARITIME ADMINISTRATION TO THE DEPARTMENT OF THE INTERIOR OF THE VESSEL EMORY VICTORY ON A PERMANENT BASIS WITHOUT REIMBURSEMENT THEREFOR.

IT IS STATED IN THE LETTER THAT THE DEPARTMENT OF THE INTERIOR HAS MADE REQUEST UPON THE DEPARTMENT OF COMMERCE FOR TRANSFER OF THE VESSEL EMORY VICTORY, WITHOUT CHARGE, FOR THE NEEDS OF THE BUREAU OF INDIAN AFFAIRS. THE REQUEST STEMS FROM ACTION OF THE CONGRESS IN MAKING FUNDS ($375,000) AVAILABLE TO THE BUREAU OF INDIAN AFFAIRS UNDER THE APPROPRIATION FOR "CONSTRUCTION" AS CONTAINED IN TITLE I OF THE DEPARTMENT OF THE INTERIOR AND RELATED AGENCIES APPROPRIATION ACT, 1962, PUBLIC LAW 87-122, APPROVED AUGUST 3, 1961, 75 STAT. 248, FOR REACTIVATION AND REPAIR OF THE VESSEL.

IT IS FURTHER STATED THAT WHILE TESTIMONY DURING THE HEARINGS BEFORE THE SUBCOMMITTEE OF THE HOUSE COMMITTEE ON APPROPRIATIONS RELATIVE TO THIS APPROPRIATION INCLUDED A STATEMENT BY A REPRESENTATIVE OF THE BUREAU OF INDIAN AFFAIRS THAT THE EMORY VICTORY COULD BE OBTAINED FROM THE MARITIME ADMINISTRATION WITHOUT CHARGE, EXCEPT THE COST OF BREAKOUT AND REPAIRS, SPECIFIC AUTHORITY FOR TRANSFER OF THE VESSEL WAS NOT REQUESTED OR PROVIDED IN THE APPROPRIATION ACT. CONSEQUENTLY, THE VIEW IS EXPRESSED THAT THE ONLY BASIS UPON WHICH TRANSFER OF THE VESSEL MAY BE MADE WITHOUT REIMBURSEMENT, WOULD BE BY OUR CONCURRENCE THAT THE LEGISLATIVE HISTORY OF THE APPROPRIATION FOR REACTIVATING THE VESSEL INDICATES THAT SUCH ACTION WAS INTENDED BY THE CONGRESS. IN THIS CONNECTION THE GENERAL COUNSEL REFERS TO OUR DECISION OF FEBRUARY 4, 1959, B-138488, TO THE ADMINISTRATOR, MARITIME ADMINISTRATION, HOLDING THAT THE TUG BAGADUCE COULD NOT BE TRANSFERRED TO THE COAST GUARD UNDER AUTHORITY OF SECTION 617 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1959, 72 STAT. 727, AUTHORIZING THE TRANSFER OF VESSELS BETWEEN THE DEPARTMENT OF COMMERCE AND THE MILITARY DEPARTMENTS NAMED THEREIN WITHOUT REIMBURSEMENT.

THE CITED APPROPRIATION FOR "CONSTRUCTION, BUREAU OF INDIAN AFFAIRS," PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"FOR CONSTRUCTION, MAJOR REPAIR, AND IMPROVEMENT OF IRRIGATION AND POWER SYSTEMS, BUILDINGS, UTILITIES, AND OTHER FACILITIES; ACQUISITION OF LANDS, AND INTERESTS IN LANDS; PREPARATION OF LANDS FOR FARMING; AND ARCHITECTURAL AND ENGINEERING SERVICES BY CONTRACT; $39,561,000, TO REMAIN AVAILABLE UNTIL EXPENDED * * *.'

WHILE THIS APPROPRIATION CONTAINS NO SPECIFIC PROVISION FOR RECONDITIONING THE EMORY VICTORY OR FOR TRANSFER OF THE VESSEL TO THE DEPARTMENT OF THE INTERIOR, EXAMINATION OF THE LEGISLATIVE HISTORY THEREOF DISCLOSES THE FOLLOWING FACTS. THE BUDGET JUSTIFICATION FOR THE APPROPRIATION AS SUBMITTED TO THE COMMITTEE ON APPROPRIATIONS, HOUSE OF REPRESENTATIVES, WAS IN THE SUM OF $39,561,000 AND INCLUDED AN AMOUNT OF $375,000 TO REACTIVATE THE EMORY VICTORY TO REPLACE THE VESSEL NORTH STAR PRESENTLY OPERATED BY THE BUREAU OF INDIAN AFFAIRS. SEE PAGES 724, 725, OF THE BUDGET FOR 1962, AS REVISED BY HOUSE DOCUMENT NO. 113, 87TH CONGRESS.

THE JUSTIFICATION FOR THIS ITEM, AS SET FORTH IN THE HOUSE AND SENATE HEARINGS ON THE DEPARTMENT OF THE INTERIOR AND RELATED AGENCIES APPROPRIATIONS FOR 1962, PAGES 157 AND 164, RESPECTIVELY, EXPLAINED THE NEED TO REPLACE THE NORTH STAR, AND STATED THAT THE DEPARTMENT HAD BEEN ADVISED BY THE MARITIME ADMINISTRATION THAT THE EMORY VICTORY WAS AVAILABLE FOR TRANSFER TO THE BUREAU OF INDIAN AFFAIRS. THE COST ESTIMATES INCIDENT TO ACQUISITION AND REACTIVATION OF THE EMORY VICTORY AND DEACTIVATION OF THE NORTH STAR ARE SET OUT AS FOLLOWS:

CHART

",REACTIVATION OF EMORY VICTORY $253,000

OUTFITTING THE EMORY VICTORY 69,500

ENGINEERING, PLANS AND SURVEYS 30,000

DEACTIVATION OF PRESENT NORTH STAR 22,500

TOTAL 375,000"

ON PAGE 178 OF THE HOUSE HEARINGS THERE ARE OBSERVED THE FOLLOWING STATEMENTS OF THE CHAIRMAN OF THE SUBCOMMITTEE ON DEPARTMENT OF THE INTERIOR AND RELATED AGENCIES APPROPRIATIONS AND MR. MASSEY OF THE BUREAU OF INDIAN AFFAIRS REGARDING REPLACEMENT OF THE NORTH STAR.

"MR. KIRWAN. I SEE THAT $375,000 IS PROPOSED TO ACTIVATE AND OUTFIT THE SHIP EMORY VICTORY TO REPLACE THE NORTH STAR TO SHIP CARGO FROM SEATTLE TO PORTS IN ALASKA.

"CAN YOU GIVE US A LITTLE EXPLANATION ON THAT?

"MR. MASSEY. YES, SIR. THE BUREAU HAS OPERATED A VESSEL FOR TRANSPORTATION IN ALASKA FOR SOME YEARS. THIS EMORY VICTORY IS A LARGER VESSEL THAN WE NOW OPERATE. WE WILL GET IT FROM THE MARITIME COMMISSION. WE WILL ONLY PAY FOR THE DEMOTHBALLING AND PUTTING IT IN OPERATING CONDITION. WE WILL, OF COURSE, NAME IT THE NORTH STAR, BECAUSE IT HAS BEEN THE NORTH STAR FOR MANY YEARS.'

THE APPROPRIATION FOR "CONSTRUCTION" WAS REPORTED OUT BY THE HOUSE COMMITTEE (HOUSE REPORT NO. 233), IN THE AMOUNT OF $35,000,000 AND PASSED BY THE HOUSE, A DECREASE OF $4,561,000 IN THE BUDGET REQUEST. THE AMOUNT ALLOWED INCLUDED THE ITEM OF $375,000 FOR REACTIVATION OF THE EMORY VICTORY. THE SENATE COMMITTEE ON APPROPRIATIONS REPORTED OUT THE APPROPRIATION IN THE AMOUNT OF $41,708,000. SENATE REPORT NO. 294, IN RECOMMENDING THE APPROPRIATION, CONTAINED THE FOLLOWING STATEMENT AT PAGE 5.

"THE COMMITTEE'S RECOMMENDATION WILL PERMIT THE BUREAU OF INDIAN AFFAIRS TO CARRY FORWARD ITS CONSTRUCTION PROGRAM AS SET FORTH IN THE BUDGET ESTIMATE, WITH THE EXCEPTION OF THE REHABILITATION OF A LARGER SURPLUS SHIP TO REPLACE THE PRESENT NORTH STAR. THE COMMITTEE DISALLOWS THE $375,000 REQUESTED FOR THIS PURPOSE.'

SENATOR GRUENING OFFERED AN AMENDMENT TO RESTORE THE ITEM OF $375,000 DISALLOWED BY THE SENATE COMMITTEE ON APPROPRIATIONS. THE SENATE AFTER SOMEWHAT EXTENDED DEBATE ADOPTED THE AMENDMENT, AND THE APPROPRIATION WAS PASSED IN THE AMOUNT OF $42,083,000. THE DISCUSSION IN EXPLANATION OF THE ACTION TAKEN WAS, SO FAR AS HERE MATERIAL, AS FOLLOWS: (SEE CONGRESSIONAL RECORD--- SENATE FOR JUNE 7, 1961, PAGE 9043.)

"MR. GRUENING. THE PURPOSE OF THE AMENDMENT IS TO RESTORE AN ITEM OF $375,000, WHICH WAS DESIGNED TO BRING INTO THE SERVICE OF THE OFFICE OF INDIAN AFFAIRS OF THE DEPARTMENT OF THE INTERIOR A RECONDITIONED BOAT, A BETTER BOAT WITH A LARGER CARRYING CAPACITY, WHICH WILL SERVE THE NEEDS OF SOME 98 ESKIMO AND INDIAN COMMUNITIES ALONG OUR LONG SHORE FRONT IN ALASKA.

"* * * THE BOAT WHICH IS SOUGHT TO BE SECURED CAN BE RECONDITIONED FOR $375,000. * * *

"MR. MUNDT. * * * ONE THING WE SHOULD KEEP IN MIND IS THAT WE ARE NOT TALKING ONLY ABOUT THE $375,000 INITIAL INVESTMENT, WHICH IS THE COST OF REHABILITATING AND RECONSTRUCTING THE SHIP WHICH IT IS PROPOSED THAT THE MARITIME COMMISSION DELIVER FREE OF CHARGE FOR THIS PURPOSE. * * *"

THE COMMITTEE OF CONFERENCE (HOUSE CONFERENCE REPORT NO. 797) RECOMMENDED THE APPROPRIATION FOR "CONSTRUCTION" IN THE AMOUNT OF $39,561,000 WHICH WAS AGREED TO BY THE HOUSE AND SENATE. THE STATEMENT OF THE MANAGERS ON THE PART OF THE HOUSE IN EXPLANATION OF THE APPROPRIATION (PAGE 5, AMENDMENT NO. 4) INDICATES THAT THE ITEM OF $375,000 AS BUDGETED FOR REACTIVATION OF THE EMORY VICTORY WAS INCLUDED IN THE APPROPRIATION.

SUMMARIZING THE LEGISLATIVE RECORD OF THE APPROPRIATION FOR "CONSTRUCTION," IT CLEARLY APPEARS THAT IN THE BUDGET JUSTIFICATION THEREFOR SUBMITTED TO AND APPROVED BY THE CONGRESS THERE WAS INCLUDED AN ESTIMATE OF $375,000 TO REACTIVATE A SPECIFIC VESSEL UNDER THE JURISDICTION OF THE MARITIME ADMINISTRATION, NAMELY, THE EMORY VICTORY, TO MEET THE REQUIREMENTS OF THE BUREAU OF INDIAN AFFAIRS; ALSO, THAT THE CONGRESS WAS APPRISED THAT THE TRANSFER OF THE VESSEL TO THE BUREAU WOULD BE ACCOMPLISHED FREE OF CHARGE.

WE HAVE HELD THAT WHERE THERE HAS BEEN INCLUDED IN BUDGET ESTIMATES SUBMITTED TO THE CONGRESSIONAL COMMITTEES AN AMOUNT TO BE EXPENDED FOR A SPECIFIC PURPOSE NOT OTHERWISE PROHIBITED BY LAW, AND SUCH AMOUNT SUBSEQUENTLY IS APPROPRIATED BY THE CONGRESS--- AS IS THE CASE HERE--- THE APPROPRIATION PROPERLY IS AVAILABLE FOR SUCH PURPOSE, EVEN THOUGH NO EXPRESS PROVISION THEREFOR IS MADE. SEE 35 COMP. GEN. 306, 308; 28 ID. 296; 26 ID. 545, 547. CF. B-76841, AUGUST 23, 1948. THUS, THE QUESTION REMAINING FOR OUR DETERMINATION IS WHETHER THE PROVISIONS OF SECTION 616 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1962, PUBLIC LAW 87-144, APPROVED AUGUST 17, 1961, 75 STAT. 378, WHICH ARE IDENTICAL WITH THE PROVISIONS OF SECTION 617 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1959, CITED ABOVE, ARE TO BE CONSTRUED AS INHIBITING THE MARITIME ADMINISTRATION FROM TRANSFERRING THE EMORY VICTORY TO THE BUREAU OF INDIAN AFFAIRS WITHOUT REIMBURSEMENT. THE SAID SECTION 616 READS AS FOLLOWS:

"VESSELS UNDER THE JURISDICTION OF THE DEPARTMENT OF COMMERCE, THE DEPARTMENT OF THE ARMY, THE DEPARTMENT OF THE AIR FORCE, OR THE DEPARTMENT OF THE NAVY MAY BE TRANSFERRED OR OTHERWISE MADE AVAILABLE WITHOUT REIMBURSEMENT TO ANY SUCH AGENCIES UPON THE REQUEST OF THE HEAD OF ONE AGENCY AND THE APPROVAL OF THE AGENCY HAVING JURISDICTION OF THE VESSELS CONCERNED.'

THE PROVISIONS OF THIS SECTION AUTHORIZE THE TRANSFER OF VESSELS BETWEEN THE DEPARTMENT OF COMMERCE AND THE MILITARY DEPARTMENTS NAMED THEREIN WITHOUT REIMBURSEMENT. AND, AS CONCLUDED IN OUR DECISION OF FEBRUARY 4, 1959, REFERRED TO ABOVE, THE AUTHORITY CONTAINED IN THIS SECTION MAY NOT BE REGARDED AS EXTENDING TO GOVERNMENT AGENCIES NOT NAMED THEREIN. WHILE THE LANGUAGE OF THE APPROPRIATION FOR "CONSTRUCTION" DID NOT EXPRESSLY PROVIDE VESSEL TRANSFER AUTHORITY, AND IT IS RECOGNIZED THAT PROPER ACTION SHOULD HAVE BEEN TAKEN TO OBTAIN SUCH AUTHORITY, IT IS APPARENT FROM THE LEGISLATIVE HISTORY THEREOF THAT THE CONGRESS CONTEMPLATED THAT THE EMORY VICTORY WOULD BE TRANSFERRED TO THE BUREAU OF INDIAN AFFAIRS FREE OF CHARGE. CONSIDERING SUCH LEGISLATIVE INTENTION IN CONJUNCTION WITH THE FACT THAT AN APPROPRIATION OF $375,000 WAS PROVIDED TO THE BUREAU OF INDIAN AFFAIRS FOR REACTIVATING THE EMORY VICTORY, AND THE POSSIBILITY THAT A FAILURE TO TRANSFER THE VESSEL WITHOUT REIMBURSEMENT MIGHT DEFEAT THE PURPOSE OF THE APPROPRIATION--- A RESULT CERTAINLY NOT CONTEMPLATED BY THE CONGRESS--- IT IS REASONABLE TO ASSUME THAT THE PROVISIONS OF SECTION 616 WERE NOT INTENDED FOR APPLICATION IN THIS INSTANCE.

ACCORDINGLY, AND FOR THE REASONS STATED HEREIN, YOU ARE ADVISED THAT OUR OFFICE WOULD NOT OBJECT TO THE TRANSFER BY YOUR DEPARTMENT TO THE BUREAU OF INDIAN AFFAIRS OF THE VESSEL EMORY VICTORY ON A PERMANENT BASIS WITHOUT REIMBURSEMENT OF FUNDS THEREFOR.