B-157987, JAN. 5, 1966

B-157987, JAN. 5, 1966

TO THE SECRETARY OF AGRICULTURE:

REFERENCE IS MADE TO LETTER OF NOVEMBER 5, 1965, FROM THE ACTING SECRETARY OF AGRICULTURE, REQUESTING OUR DECISION AS TO WHETHER, IN THE CIRCUMSTANCES INVOLVED, PAYMENT MAY BE MADE FOR WORK PERFORMED IN 1961BY MR. A. R. KYLE OF BENTON COUNTY, OREGON, UNDER THE AGRICULTURAL CONSERVATION PROGRAM.

THE RECORD SHOWS THAT ON APRIL 21, 1961, MR. KYLE REQUESTED COST SHARING ASSISTANCE UNDER THE PROGRAM FOR THE PERFORMANCE OF A CONSERVATION PRACTICE CONSISTING OF THE CHANNEL CLEARANCE OF A DRAINAGE DITCH. THE BENTON COUNTY, OREGON, AGRICULTURAL STABILIZATION AND CONSERVATION COMMITTEE APPROVED THE REQUEST ON APRIL 25, 1961, AND FIXED THE COST-SHARE ASSISTANCE AT $1,000 WITH THE REQUIREMENT THAT THE PRACTICE BE COMPLETED BY OCTOBER 30, 1961. MR. KYLE OBTAINED THE NECESSARY EQUIPMENT FROM BENTON COUNTY, AND COMPLETED THE WORK ON ONE SIDE OF THE CHANNEL AND ON PART OF THE OTHER SIDE IN AUGUST AND SEPTEMBER 1961. HOWEVER, BEFORE HE HAD COMPLETED THE WORK ON BOTH SIDES OF THE CHANNEL THE COUNTY REQUIRED THE RETURN OF ITS EQUIPMENT.

THE RECORD SHOWS THAT MR. KYLE APPLIED FOR PAYMENT OF COST-SHARES ON OCTOBER 16, 1961. HOWEVER, PAYMENT FOR A PRACTICE OF THE KIND INVOLVED IN THIS CASE REQUIRES CERTIFICATION BY A TECHNICIAN OF THE SOIL CONSERVATION SERVICE THAT THE WORK HAS BEEN COMPLETED IN ACCORDANCE WITH SPECIFICATIONS AND MEETS MINIMUM AGRICULTURAL CONSERVATION PROGRAM (ACP) STANDARDS. SINCE THE SOIL CONSERVATION SERVICE TECHNICIAN REPORTED IN THIS CASE THAT THE PRACTICE HAD NOT BEEN COMPLETED TO ACP MINIMUM STANDARDS, THE COST- SHARE APPLIED FOR BY MR. KYLE WAS NOT PAID.

MR. KYLE'S CHANNEL CLEARANCE PRACTICE WAS REAPPROVED UNDER THE 1962 PROGRAM; HOWEVER, HE WAS UNABLE TO OBTAIN THE EQUIPMENT NECESSARY TO COMPLETE THE WORK IN THAT YEAR. THE PRACTICE WAS REAPPROVED UNDER THE 1963 PROGRAM AND AGAIN MR. KYLE WAS UNABLE TO OBTAIN THE NECESSARY EQUIPMENT. ON NOVEMBER 19, 1963, THE APPROVAL OF THE PRACTICE WAS CANCELLED AT MR. KYLE'S REQUEST.

IT NOW APPEARS THAT MR. KYLE IS INTERESTED IN COMPLETING THE PRACTICE IN 1966 AND HAS REQUESTED REINSTATEMENT OF THE APPROVAL FOR THE PRACTICE. HOWEVER, HE WISHES TO BE ADVISED AS TO WHETHER HE CAN RECEIVE A COST-SHARE PAYMENT FOR THE WORK PERFORMED IN 1961 BEFORE HE PROCEEDS TO COMPLETE THE PRACTICE. RECORDS MADE AVAILABLE TO US SHOW THAT THE COST INCURRED BY MR. KYLE IN 1961 WAS $1,285, OF WHICH THE GOVERNMENT'S SHARE WOULD BE 50 PERCENT OR $642.50.

IT IS STATED IN THE LETTER OF NOVEMBER 5, 1965, THAT THE AGRICULTURAL STABILIZATION AND CONSERVATION SERVICE, DESIRES TO MAKE PAYMENT OF COST- SHARES FOR ALL THE WORK, WHEN COMPLETED BY MR. KYLE, FROM FUNDS AVAILABLE FOR THE PROGRAM UNDER WHICH THE WORK IS COMPLETED. IN THE ALTERNATIVE, IT PROPOSES TO MAKE PAYMENT FOR THE WORK COMPLETED IN 1961 FROM ANY FUNDS THAT MAY NOW BE AVAILABLE FOR PERFORMANCE UNDER THE 1961 PROGRAM, AND TO PAY FOR THE WORK NECESSARY TO COMPLETE THE PRACTICE FROM FUNDS AVAILABLE FOR THE PROGRAM UNDER WHICH THE WORK IS COMPLETED. HOWEVER, BOTH ALTERNATIVES RAISE THE QUESTION WHETHER, UNDER THE CIRCUMSTANCES, PAYMENT MAY BE MADE FOR THE WORK PERFORMED IN 1961.

REGARDING THE PROPOSAL TO MAKE PAYMENT OF COST-SHARES FOR ALL THE WORK, WHEN COMPLETED, FROM FUNDS AVAILABLE FOR THE PROGRAM THAT IS CURRENT AT THE TIME THE WORK IS COMPLETED, THE APPROPRIATION THAT IS CURRENT AT THE TIME THE PRACTICE IS COMPLETED WOULD BE AVAILABLE ONLY FOR THE WORK THAT IS PERFORMED UNDER THE CURRENT PROGRAM. THEREFORE, THE APPROPRIATION THAT IS CURRENT AT THE TIME THE PRACTICE IS COMPLETED WOULD NOT BE AVAILABLE TO PAY FOR WORK PERFORMED UNDER THE 1961 PROGRAM WHICH IS NO LONGER CURRENT.

REGARDING THE PROPOSAL TO MAKE PAYMENT FOR THE WORK PERFORMED IN 1961 FROM FUNDS THAT MAY NOW BE AVAILABLE FOR PERFORMANCE UNDER THE 1961 PROGRAM, CANCELLATION OF THE APPROVAL OF THE PRACTICE, AT THE REQUEST OF MR. KYLE, PRIOR TO ITS COMPLETION, CANCELLED THE OBLIGATION AGAINST THE APPROPRIATION THAT WAS AVAILABLE TO PAY COST-SHARES FOR WORK CARRIED OUT UNDER THE 1961 PROGRAM. ALSO, THE APPROPRIATION FOR CARRYING OUT PRACTICES UNDER THE 1961 PROGRAM WAS AVAILABLE ONLY UNTIL DECEMBER 31, 1962. THEREFORE, IF THE PRACTICE IS COMPLETED IN 1966, THE APPROPRIATION FOR CARRYING OUT PRACTICES UNDER THE 1961 PROGRAM IS NOT AVAILABLE TO PAY FOR WORK PERFORMED IN 1961 BECAUSE THE OBLIGATION AGAINST SUCH APPROPRIATION WAS CANCELLED AND THE TIME DURING WHICH THE APPROPRIATION WAS AVAILABLE FOR OBLIGATION HAS EXPIRED.

IN VIEW OF THE FOREGOING, NEITHER THE APPROPRIATION CURRENT AT THE TIME THE PRACTICE IS COMPLETED NOR THE APPROPRIATION AVAILABLE FOR PERFORMANCE UNDER THE 1961 PROGRAM IS AVAILABLE TO PAY COST-SHARES FOR THE WORK PERFORMED IN 1961 BY MR. KYLE.