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1952: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 3. WHEREIN IT WAS CONCLUDED THAT NEITHER THE ACT OF FEBRUARY 25. IT IS URGED IN THE SAID LETTER THAT (1) THE COUNCIL IS AN INSTRUMENT THAT MAY PROPERLY BE USED IN PERFORMING THE FUNCTION OF MAKING INVESTIGATIONS AND INQUIRIES AS PROVIDED IN 30 U.S.C. 3. CONSEQUENTLY THAT THE CREATION OF THE COUNCIL WAS "AUTHORIZED BY LAW" WITHIN THE MEANING OF THAT TERM AS USED IN 31 U.S.C. 673. (2) THAT 31 U.S.C. 672 IS INAPPLICABLE TO PURELY ADVISORY BODIES SUCH AS THE NATIONAL MINERALS ADVISORY COUNCIL. IT IS ALSO PROVIDED THAT "THERE SHALL ALSO BE IN THE SAID BUREAU SUCH EXPERTS AND OTHER EMPLOYEES. HAVE INCLUDED FUNDS FOR THE EMPLOYMENT IN THE BUREAU OF MINES OF SUCH PROFESSIONAL EMPLOYEES AS ENGINEERS.

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B-74071, MARCH 7, 1952, 31 COMP. GEN. 454

BOARDS AND COMMISSIONS -EXPENSES OF NATIONAL MINERALS ADVISORY COUNCIL THE ACT OF MAY 16, 1910, ESTABLISHING THE BUREAU OF MINES, CONTAINS SPECIFIC AUTHORITY TO CONDUCT INQUIRIES AND INVESTIGATIONS IN THE MINERAL INDUSTRIES AND ALSO PROVIDES FOR THE APPOINTMENT OF PROFESSIONAL PERSONNEL FOR THOSE PURPOSES, THUS REFUTING THE NECESSITY FOR THE CREATION BY THE SECRETARY OF INTERIOR OF THE NATIONAL MINERALS ADVISORY COUNCIL TO PERFORM SAID INQUIRIES AND INVESTIGATIONS, AND THEREFORE, THE PROHIBITION IN 31 U.S.C. 673 AGAINST THE USE OF PUBLIC FUNDS FOR CREATION OF ANY COUNCIL NOT SPECIFICALLY AUTHORIZED BY LAW, PRECLUDES THE PAYMENT OF ANY EXPENSES OF THE NATIONAL MINERALS ADVISORY COUNCIL. 27 COMP. GEN. 630, AFFIRMED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, MARCH 7, 1952:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 3, 1951, REQUESTING RECONSIDERATION OF OFFICE DECISION OF APRIL 14, 1948, 27 COMP. GEN. 630, WHEREIN IT WAS CONCLUDED THAT NEITHER THE ACT OF FEBRUARY 25, 1913, 37 STAT. 681, AS AMENDED, 30 U.S.C. 3, NOR THE STRATEGIC AND CRITICAL MATERIALS STOCK PILING ACT OF JULY 23, 1946, 60 STAT. 596, WHICH AMENDS THE ACT OF JUNE 7, 1939, 53 STAT. 811, 50 U.S.C. 98, ET SEQ., AUTHORIZED, EVEN IN A GENERAL WAY, THE CREATION BY THE SECRETARY OF THE INTERIOR OF A COUNCIL SUCH AS THE NATIONAL MINERALS ADVISORY COUNCIL. IT IS URGED IN THE SAID LETTER THAT (1) THE COUNCIL IS AN INSTRUMENT THAT MAY PROPERLY BE USED IN PERFORMING THE FUNCTION OF MAKING INVESTIGATIONS AND INQUIRIES AS PROVIDED IN 30 U.S.C. 3, AND CONSEQUENTLY THAT THE CREATION OF THE COUNCIL WAS "AUTHORIZED BY LAW" WITHIN THE MEANING OF THAT TERM AS USED IN 31 U.S.C. 673, AND (2) THAT 31 U.S.C. 672 IS INAPPLICABLE TO PURELY ADVISORY BODIES SUCH AS THE NATIONAL MINERALS ADVISORY COUNCIL.

THE ACT OF MAY 16, 1910, 36 STAT. AS AMENDED BY THE ACT OF FEBRUARY 25, 1913, 37 STAT. 681, 30 U.S.C. 1, 3, 5-7, ESTABLISHED THE BUREAU OF MINES AND DOES CONTAIN SPECIFIC AUTHORITY FOR THE BUREAU TO CONDUCT INQUIRIES AND INVESTIGATIONS ADDRESSED TO ECONOMIC AS WELL AS TECHNOLOGICAL FACTORS CONCERNING THE MINERAL INDUSTRIES. HOWEVER, IT IS ALSO PROVIDED THAT "THERE SHALL ALSO BE IN THE SAID BUREAU SUCH EXPERTS AND OTHER EMPLOYEES, TO BE APPOINTED BY THE SECRETARY OF THE INTERIOR, AS MAY BE REQUIRED TO CARRY OUT THE PURPOSES OF THIS ACT IN ACCORDANCE WITH THE APPROPRIATIONS MADE FROM TIME TO TIME BY CONGRESS FOR SUCH PURPOSES.' THE BUDGETS FOR THE DEPARTMENT OF THE INTERIOR SINCE 1936, HAVE INCLUDED FUNDS FOR THE EMPLOYMENT IN THE BUREAU OF MINES OF SUCH PROFESSIONAL EMPLOYEES AS ENGINEERS, CHEMISTS, PHYSICISTS, METALLURGISTS, ECONOMISTS, ETC. HENCE, IT APPEARS THAT THE PERSONNEL NECESSARY TO THE FUNCTION OF MAKING THE SUBJECT INVESTIGATIONS AND INQUIRIES WAS EXPRESSLY PROVIDED. THE DECISION OF JUNE 22, 1932, 11 COMP. GEN. 495, QUOTED IN THE MEMORANDUM ACCOMPANYING YOUR LETTER IN SUPPORT OF THE PROPOSITION THAT THE CREATION OF THE COUNCIL WAS "AUTHORIZED BY LAW" WITHIN THE MEANING OF 31 U.S.C. 673, STATED, IN PERTINENT PART, AS FOLLOWS:

THERE IS NO DISAGREEMENT WITH THE CONTENTION * * * THAT A COMMISSION, BOARD, ETC., TO BE ,AUTHORIZED BY LAW" DOES NOT NECESSARILY REQUIRE THAT ITS CREATION BE SPECIFICALLY PROVIDED FOR BY A STATUTE. 16 COMP. DEC. 278; ID. 424; 27 OP. ATTY. GEN. 432. HOWEVER, THERE MUST BE SUFFICIENT AUTHORITY IN GENERAL OR SPECIFIC TERMS FOR THE CREATION OF A COMMISSION, BOARD, ETC., SUCH AS AN AUTHORIZATION FOR WORK WHICH COULD BE ACCOMPLISHED ONLY BY A COMMISSION, BOARD, ETC., OR AUTHORIZATION FOR DUTIES OF SUCH A NATURE GENERALLY RECOGNIZED AS BEST PERFORMED BY A COMMISSION, BOARD, ETC.

IN VIEW OF THE FACTS HEREIN ABOVE SET FORTH, IT SEEMS APPARENT THAT THE CREATION OF A COUNCIL, COMMISSION, BOARD, ETC., WAS NOT CONSIDERED THE ONLY METHOD BY WHICH THE AUTHORIZED INVESTIGATIONS AND INQUIRIES COULD BE ACCOMPLISHED NOR THAT THOSE DUTIES ARE OF SUCH A NATURE GENERALLY RECOGNIZED AS BEST PERFORMED BY A COMMISSION, BOARD, ETC. ON THE CONTRARY, THE PROVISION FOR EMPLOYMENT OF ,EXPERTS" AND THE INCLUSION IN APPROPRIATIONS OF FUNDS FOR THE EMPLOYMENT OF PROFESSIONAL EMPLOYEES OF THE TYPE REFLECTED IN THE SEVERAL BUDGETS APPEAR TO REFUTE ANY IMPLICATION THAT THE ACT OF MAY 16, 1910, SUPRA, AUTHORIZED, EVEN IN A GENERAL WAY, THE CREATION OF SUCH A COUNCIL. MOREOVER, THE DUTIES IMPOSED UPON THE BUREAU OF MINES BY THAT ACT APPEAR TO HAVE BEEN ACCOMPLISHED FROM THAT DATE UNTIL DECEMBER 12, 1947, DATE OF CREATION, OF THE NATIONAL MINERALS ADVISORY COUNCIL, WITHOUT THE NECESSITY FOR SUCH AN ADVISORY GROUP AND WITHOUT APPROPRIATIONS HAVING BEEN PROVIDED FOR ITS EXPENSES.

ACCORDINGLY, THE FOREGOING CONSIDERATIONS REQUIRE AFFIRMATION OF MY DECISION OF APRIL 14, 1948, SUPRA, THAT THE ACT OF MAY 16, 1910, AS AMENDED, 30 U.S.C. 1, 3, 5-7, DOES NOT AUTHORIZE, EVEN IN A GENERAL WAY, THE SECRETARY OF THE INTERIOR TO CREATE A COUNCIL SUCH AS THE NATIONAL MINERALS ADVISORY COUNCIL AND, IN THE ABSENCE OF SOME SUCH AUTHORITY OF LAW, THE PROHIBITION IN 31 U.S.C. 673 WOULD PRECLUDE THE USE OF ANY PART OF THE PUBLIC MONIES OR OF ANY APPROPRIATION MADE BY CONGRESS FOR ANY EXPENSES CONNECTED WITH THE NATIONAL MINERALS ADVISORY COUNCIL.

IN VIEW OF THE FOREGOING, THERE IS NO APPARENT NECESSITY TO CONSIDER THE CONTENTION THAT THE TERM "COMMISSION OR INQUIRY" AS USED IN 3681, REVISED STATUTES, 31 U.S.C. 672, APPLIES SOLELY TO PERSON OR GROUPS OF PERSONS WITH FORMALLY DELEGATED POWERS, PARTICULARLY INVESTIGATIVE BODIES CLOTHED WITH SOME MEASURE OF DEPUTED AUTHORITY, AND NOT TO PURELY ADVISORY BODIES SUCH AS THE COUNCIL.

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