BNUMBER:  B-278121 
DATE:  November 7, 1997
TITLE: [Letter], B-278121, November 7, 1997
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B-278121

November 7, 1997

John D. Webster
Director, Financial Services
Library of Congress

Dear Mr. Webster:

This responds to your request of September 22 for our opinion 
regarding the 1998 Salaries and Expenses Appropriation for the Library 
of Congress (Library).  You question, given the language of the 
applicable conference report, the amount of the Library's Salaries and 
Expenses Appropriation that must be used for the acquisition of 
library materials.

The Legislative Branch Appropriations Act, 1998 appropriates money to 
the Library of Congress, under the heading "Library of Congress, 
Salaries and Expenses", as follows:
 
     "For necessary expenses of the Library of Congress not otherwise 
     provided for. . .$227,016,000 . . . Provided further, That of the 
     total amount appropriated, $9,619,000 is to remain available 
     until expended for acquisition of books, periodicals, newspapers, 
     and all other materials . . . ." 

Other than the $9,619,000 earmark and two other earmarks not relevant 
here, this appropriation is available only for fiscal year 1998.  
Because the Library had sought only $8,845,000 of the $227,016,000 
total for the acquisition of materials, to accommodate a $9,619,000 
earmark, the Library must reduce its spending on other programs and 
activities by $774,000 (representing the amount by which the Congress 
increased the Library's request for funding for acquisition of 
materials) and use $774,000 of its fiscal year money to cover the 
difference.

Instead of reading the $9,619,000 earmark for acquisition of materials 
as both the minimum and maximum amount available for this purpose, you 
have suggested    an alternative.  After reviewing the conference 
committee report (H.R. Rep.        No. 105-254), you believe that the 
conferees intended to authorize the Library to fund "up to" $9,619,000 
for materials, but not to require that level of spending.  In other 
words, the $9,619,000 earmark is a maximum only.  The relevant 
language in the conference report reads as follows:
 
     "Provides $227,016,000 for salaries and expenses, Library of 
     Congress instead of $223,507,000 as proposed by the House and 
     $229,904,000 as proposed by the Senate.  Of this amount, 
     $9,619,000 is to remain available until expended for acquisition 
     of library materials as proposed by the Senate instead of 
     $8,845,000 as proposed by the House".

H.R. Rep. No. 105-254, at 30.
  
You point out that the conferees agreed to the House proposed funding 
level ($223,507,000) with two exceptions that taken together represent 
an increase of $3,509,000 over the House level.  This, taken in 
concert with the fact that the conference report makes no mention of a 
$774,000 reduction in fiscal year money, indicates that the Congress 
intended no other change to the total fiscal year amount generally 
available, such as would be required by a mandated $9,619,000 level of 
funding.  Accordingly, you suggest that the Congress necessarily 
intended the $9,619,000 to represent the maximum amount, not the 
minimum and maximum, available for this purpose.

We think the language of the appropriation requires the Library to set 
aside $9,619,000 from its fiscal year money for the acquisition of 
library materials.   The language employed by the Congress is 
straightforward and does not contain any qualifying terms.  It 
provides simply that "$9,619,000 is to remain available until expended 
for acquisition of books . . . and all other materials".  On its face, 
this language makes the entire amount available only for the 
acquisition of books and materials.  If the Congress had intended the 
$9,619,000 to be a discretionary maximum level of expenditure, we 
think it would have so stated in the law.  See  53 Comp. Gen. 695 
(1974). 

Because the language of the law is clear, we have no basis to resort 
to assumptions or inferences drawn from inexplicit statements 
contained in the conference report.  When the Congress appropriates 
lump-sum amounts without statutorily restricting what can be done with 
these funds, a clear inference arises that it does not intend to 
impose legally binding restrictions, and indicia in committee reports 
and other legislative history as to how the funds should or are 
expected to be spent do not establish any legal requirements on 
federal agencies.  55 Comp. Gen. 307, 319 (1975).  Implicit within 
this holding is the more basic proposition that an existing statutory 
provision cannot be superseded or repealed by statements, 
explanations, recommendations, or tables contained in committee 
reports or in other legislative history.  Id.  In other words, if 
explanations or other comments in committee reports do not create any 
legally binding restrictions on an agency's discretionary authority to 
spend a lump-sum appropriation as it chooses, such comments certainly 
cannot supersede an existing statutory provision that establishes a 
legally binding amount that an agency may dispose of as an available 
appropriation.  Cf.  64 Comp. Gen. 282 (1985).   As stated by the 
Supreme Court, "[e]xpressions of committees dealing with requests for 
appropriations cannot be equated with statutes enacted by Congress . . 
. ."  Tennessee Valley Authority v. Hill,  437 U.S. 153, 191 (1978).   

You ask whether the Library could reprogram $774,000 of its no-year 
funds to its fiscal year account subject to approval of House and 
Senate appropriations committees.  Although you describe the action as 
a reprogramming, we think this movement of funds is more appropriately 
characterized as a transfer.  We use the term "reprogramming" to refer 
to the utilization of funds within an appropriation account for 
purposes different than those budgeted or projected at the time of 
appropriation.  In other words, it is the shifting of funds from one 
object to another within an appropriation.  See 1 Principles of 
Federal Appropriations Law, p. 2-25 (GAO/OGC-91-5, 2nd ed.)  A 
transfer is the shifting of funds between appropriations, and is 
prohibited without statutory authority.  31 U.S.C.  sec.  1532 (1994).  
Section 1532 provides that "[A]n amount available under law may be 
withdrawn from one appropriation account and credited to another or to 
a working fund only when authorized by law."  An unauthorized transfer 
would also violate 31 U.S.C.              sec.  1301(a) (which prohibits 
the use of appropriations for other than their intended purpose) and 
would constitute an unauthorized augmentation of the receiving 
appropriation.  See B-248284, B-248284.2, Sept. 1, 1992 ("informal 
congressional approval of an unauthorized transfer of funds between 
appropriation accounts did not have force and effect of law").  The 
fact that an appropriation for a specific purpose, such as library 
materials, is included as an earmark in a general appropriation does 
not deprive it of its character as an appropriation for the particular 
purpose designated.  20 Comp. Gen. 739 (1941).  Accordingly, we do not 
think the Library may transfer the funds without statutory authority 
to do so.

I trust that this responds fully to your question.  If I can be of 
further assistance on this matter, please do not hesitate to call me 
or Ms. Barbara Timmerman of my staff at 512-5644. 

Sincerely yours,

Gary L. Kepplinger
Associate General Counsel

B-278121

November 7, 1997

DIGEST

Language in the Library of Congress Salaries and Expenses 
appropriation earmarking $9,619,000 "to remain available until 
expended" for acquisition of library materials requires that the 
Library make $9,619,000 available for this purpose; the law does not 
simply impose a cap on expenditure, or otherwise authorize the Library 
to obligate "up to" this amount.  

Shifting of funds from the $9,619,000 earmark to the fiscal year lump 
sum appropriation for Salaries and Expenses constitutes a transfer.  
Library of Congress may not transfer funds between appropriations 
without statutory authorization.     31 U.S.C.  sec.  1532.