BNUMBER:  B-274576
DATE:  January 13, 1997
TITLE:  Availability of Department of Energy
Reception and Representation
Funds

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Matter of: Availability of Department of Energy Reception and 
Representation 
           Funds

File:       B-274576

Date:       January 13, 1997
                 
DIGEST

Congress annually appropriates to the Department of Energy an amount 
for "Departmental Administration" that remains available until 
expended.   Each year Congress authorizes the Department to use a 
specified, "not to exceed" portion of its "Departmental 
Administration" appropriation for official reception and 
representation (R&R) activities.  DOE's authority to use a portion of 
its   "Departmental Administration" appropriation for R&R activities 
is coextensive with, and inseparable from, the period of availability 
of the amount annually appropriated for "Departmental Administration".  
Thus, to the extent the Department does not use all the R&R authority 
(and all the "Departmental Administrations" appropriation) provided 
each year, it continues to remain available for obligation in 
succeeding years.

DECISION

The Inspector General (IG), Department of Energy (DOE) asks whether 
DOE may use no year "Departmental Administration" appropriations for 
official reception and representation (R&R) activities only during the 
first year of their availability or may DOE use unobligated amounts of 
R&R authority for activities after the end of the fiscal year of the 
appropriation act appropriating the no year funds.  The R&R authority 
is not time limited to the first year of the "Departmental 
Administration" appropriation.  Accordingly, DOE may use any unused 
R&R authority in subsequent years to the extent described below.

Background

As a result of an investigation of overseas travel by the Secretary 
and other DOE officials, the DOE Inspector General's Office (OIG) 
determined that DOE incurred costs during fiscal years 1993 through 
1995 that should have been charged to appropriations available for R&R 
activities.  Annual appropriation acts for DOE have made a portion of 
the no year "Departmental Administration" appropriation available for 
R&R activities.  However, the IG questions the time period during 
which the R&R authority is available for obligation.  The IG considers 
the R&R authority as available only for the first year of each new 
"Departmental  Administration" appropriation.  For example, the IG 
considers the no year funds appropriated by the fiscal year 1997 
appropriation act as being available for R&R activities only during 
fiscal year 1997.  The General Counsel considers the R&R authority to 
continue as long as the amounts appropriated each year for 
"Departmental Administration" remain available for obligation.[1]  To 
resolve this issue, the IG has asked "whether the Department's 
Reception and Representation funds are 'no year' funds, available 
until expended, or whether the annual expenditures are limited by the 
stated appropriation act amount."  

The Energy and Water Development Appropriations Act, 1997, making 
appropriations for "Departmental Administration", provides as follows:

"For salaries and expenses of the Department of Energy necessary for 
Departmental Administration and other activities in carrying out the 
purposes of the Department of Energy Organization Act...including 
official reception and representation expenses (not to exceed 
$35,000), $215,021,000, to remain available until expended...."[2]

Similar language appears in past years appropriations acts. [3]
 
As noted above, the IG takes the view that the authority to use a 
portion of the no year amount appropriated each year for "Departmental 
Administration" for R&R activities ceases to be available for R&R 
activities after the first fiscal year of the appropriation.  The IG 
bases this view on DOE's past practice. An explanation of DOE's 
practice appears in the legislative history of the Energy and Water 
Development Appropriation Act, 1991.  During the hearings on DOE's 
budget request, Chairman Tom Bevill of the Subcommittee on Energy and 
Water Development of the House Appropriations Committee asked:  "Does 
the Department take the position that unobligated official reception 
and representation funds carry forward to the following years? If so, 
please justify."  

DOE's Acting Director, Administration and Human Resources Management,  
submitted the following response for the record:

"The Department has historically taken the position that funds 
provided for official reception and representation are available for 
that purpose only during the fiscal year for which appropriated.  
Funds for official reception and representation are nearly entirely 
obligated each fiscal year and, consequently, unobligated balances 
remaining are relatively insignificant.  Funds that do remain at the 
end of the fiscal year are merged with all other generally 
appropriated funds for Departmental Administration, thus losing 
identity as to original purpose.  At such time as prior year 
unobligated funds are reapportioned by OMB, any previous reception and 
representation balances remaining from the fiscal year are included.  
However, funds carried forward are used to support other Departmental 
Administration programs, not to supplement official reception and 
representation funds in the current fiscal year."[4] 

The Deputy General Counsel believes that the authority to spend no 
year amounts appropriated each year for "Departmental Administration" 
for R&R activities is not limited to the first fiscal year that such 
amounts are made available for obligation.   He bases his opinion on 
the plain language of the appropriation act.  He responds to the IG's 
reliance on the Department's past practice by arguing that nothing in 
DOE's past practice is inconsistent with the law or serves to repeal 
the authority conferred by law.  With the limitations discussed below, 
we agree with the General Counsel. 

Discussion

When an appropriation act expressly provides that the amounts 
appropriated are "to remain available until expended," the amounts 
constitute no year appropriations that remain available indefinitely 
until fully obligated and expended.  40 Comp. Gen. 694 (1961) and 
B-271607, June 3, 1996.  Generally, the amounts appropriated each year 
for "Departmental Administration" remain available for obligation for 
authorized purposes until fully obligated in accordance with the 
purposes and limitations attributable to that lump sum appropriation.  
40 Comp. Gen. 696-697(1961) .[5]

The 1997 Energy appropriation act authorizes DOE to spend not more 
than $35,000 of the $215 million appropriated for "Departmental 
Administration" for R&R activities.[6]  Nothing in the language of the 
1997 appropriation act serves to place a time limit on DOE's authority 
to obligate the amount of funds authorized for R&R activities 
different from the time limit applicable to the total amount 
appropriated by the 1997 act for "Departmental Administration".[7]  
DOE's authority to use up to $35,000 for R&R activities is coextensive 
with, and inseparable from, the period of availability for obligating 
the $215 million appropriated for "Departmental Administration".  The 
authority conferred by law for obligating "Departmental 
Administration" funds is the same regardless of whether the purpose is 
an R&R activity or some other purpose for which the funds are 
available.  The same is true for the authority to use a portion of the 
no year funds appropriated to DOE for "Departmental Administration" 
for R&R activities in past years appropriations acts.  Thus, the 
authority conferred each year to use a specified portion of the  
"Departmental Administration" appropriation for R&R activities does 
not expire at the end of the first fiscal year of each annual 
appropriation act merely because DOE does not obligate the maximum 
authorized.  

Whether there is unused R&R authority available from past years 
requires the Department to address one additional consideration.  As 
we emphasized above, the appropriation language does not make an 
amount available only for R&R activities to the exclusion of the other 
purposes for which the "Departmental Administration" appropriation is 
available. Conceivably, by the end of a fiscal year, DOE could 
obligate the entire amount appropriated in a year for "Departmental 
Administration" as well as amounts carried over from past years 
without obligating any amounts for R&R activities.  In such a 
situation there would be no unobligated balances available for R&R 
activities carried over to a subsequent fiscal year.  Thus each year's 
cumulative unobligated balance carried over to the next fiscal year 
would have to at least equal the cumulative unobligated authority for 
R&R activities for past fiscal years in order to conclude that R&R 
authority continues to be available as a result of the carryover.  In 
other words, the amount of unused R&R authority that may be carried 
over to a subsequent year is the lesser of the unused R&R authority or 
the unobligated balance of the "Departmental Administration" 
account[8]
 
OMB's practice of including in the apportionment for the next fiscal 
year the total unobligated "Departmental Administration" appropriation 
balance at the end of each fiscal year does not serve to change the 
purpose for which the funds are available.  The apportionment process 
does not effect an amendment to the appropriation act as to the 
purpose for which appropriations are available (including authority to 
use a portion of such funds for R&R activities) or the time period 
during which such funds are available.  Otherwise OMB could use the 
apportionment process to impound funds (without complying with the 
requirements of law)[9]  or, in effect, amend the appropriation act.   
Here, OMB's apportionment of DOE's "Departmental Administration" 
appropriation reflects nothing more than the continuing nature of the 
no year funds annually appropriated to the "Departmental 
Administration" account. We see no basis to infer an attempt by OMB 
through the apportionment process to limit the funds available for R&R 
activities. 

Thus, to the extent that the cumulative unobligated balances of past 
year appropriations for "Departmental Administration" that are carried 
over each year are equal to or exceed the cumulative unused authority 
for R&R activities, they are available to obligate and pay costs 
incurred in connection with R&R activities that occur subsequent to 
the initial year in which Congress makes such no year authority 
available. 

/s/Robert P. Murphy
for Comptroller General 
of the United States

1. The difference of opinion is set forth in the memorandum dated 
October 7, 1996, pp. 2-3, transmitting to the Secretary, the report: 
Inspector General, Department of Energy, Report on Inspection of the 
Secretary of Energy's Foreign Travel, Rep. No. DOE/IG-0397 (October 7, 
1996).

2. Pub. L. No. 104-206, Title III, 110 Stat. 2984, 2996 (1996).

3. See, e.g., the Energy and Water Development Appropriations Act, 
1996, Pub. L. No. 104-46, Title III, 109 Stat. 402, 414 (1995); the 
Energy and Water Development Appropriations Act, 1995, Pub. L. No. 
103-316, Title III, 108 Stat. 1707, 1718 (1994): and, the Energy and 
Water Development Appropriations Act, 1994 Pub. L. No. 103-126, Title 
III 107 Stat. 1312, 1329 (1993).  In a memorandum to the Acting Chief 
Financial Officer, DOE dated July 31, 1996, p. 38, the Deputy General 
Counsel indicates that starting before 1985, Congress has included in 
the "Departmental Administration" appropriation not to exceed $35,000 
for reception and representation expenses (except in fiscal year 1987 
when the amount was 17,500), all of which remains available until 
expended.

4. Energy and Water Development Appropriations for 1991: Hearing 
Before a Subcommittee of the Committee on Appropriations, House of 
Representatives (Part5), 101st Cong., 2d Sess., 1487 (1990).

5. The IG does not suggest that DOE or the Congress has cancelled the 
amounts authorized each year for R&R activities.  The President or the 
head of an agency may cancel unobligated balances of no year 
appropriation accounts in accordance with the statutory procedures for 
closing appropriations accounts available for indefinite periods.  31 
U.S.C.  sec.  1555 (1994).  The Appropriations account in this case is the 
"Departmental Administration" account; the law does not authorize a 
separate "R&R" appropriation account.)  Alternatively Congress may 
cancel all or part of the unobligated balance of a no year 
appropriation by enactment or a rescission law.   2 U.S.C.  sec.  683 
(1994).

6. Appropriated funds are generally unavailable for official 
entertainment activities absent legislative authority.  69 Comp. Gen. 
242 (1990).  The R&R language appearing in the appropriation provides 
the specific authority necessary to use government funds for official 
entertainment and related purposes.  68 Comp. Gen. 226,228 (1989).

7. We see no basis in the language of the appropriation to server each 
years grant of authority to use a portion of the "Departmental 
Administration" appropriation for R&R activities from the total amount 
appropriated each year for "Departmental Administration" let alone to 
assign differing periods of availability to the various purposes 
including R&R activities for which the "Departmental Administration" 
appropriation is available.  To adopt the IG's position would require 
us to construe the language in the "Departmental Administration" 
appropriation as if it read: "Provided further, That DOE may obligate 
and expend not to exceed $35,000 for official reception and 
representation activities during the fiscal year ending September 30, 
1997, from amounts appropriated under the heading "Departmental 
Administration by this or any other act."

8. The Deputy General Counsel's July 31, 1996, memorandum, pp. 53-54, 
states that the amount of unused R&R authority from 1985 thought 1995 
is $49,007.88.  It also concludes that this is more than adequate to 
cover the roughly $35,000, in R&R costs identified during the 
investigation.  However, the record before us does not clearly 
indicate whether the unobligated balances of the "Departmental 
Administration" appropriations carried forward each year exceeds the 
cumulative amounts of unused R&R authority that DOE claims is 
available.

9. The President may purpose a recession pursuant to section 1012 of 
the Congressional Budget and Impoundment Control Act of 1974, as 
amended, 2 U.S.C.  sec.  683 (1994) or the Congress exercising its 
constitution power of the purse may rescind amounts previously 
provided.  In either event, the rescission must be enacted into law.