ments made for each such appropriation, and (B) enable such officer or agency head to fix responsibility for the creation of any obligation or the making of any expenditure in excess of an apportionment or reapportionment. In order to have a simplified system for the administrative subdivision of appropriations or funds, each agency shall work toward the objective of financing each operating unit, at the highest practical level, from not more than one administrative subdivision for each appropriation or fund affecting such unit. (h) No officer or employee of the United States shall authorize or create any obligation or make any expenditure (A) in excess of an apportionment or reapportionment, or (B) in excess of the amount permitted by regulations prescribed pursuant to subsection (g) of this section. (i) (1) In addition to any penalty or liability under other law, any officer or employee of the United States who shall violate subsection (a), (b), or (h) of this section shall be subjected to appropriate administrative discipline, including when circumstances warrant, suspension from duty without pay or removal from office; and any officer or employee of the United States who shall knowingly and willfully violate subsection (a), (b), or (h) of this section shall, upon conviction, be fined not more than $5,000 or imprisoned for not more than two years, or both. (2) In the case of a violation of subsection (a), (b), or (h) of this section by an officer or employee of an agency, or of the District of Columbia, the head of the agency concerned or the Commissioners of the District of Columbia, shall immediately report to the President, through the Director of the Bureau of the Budget, and to the Congress all pertinent facts together with a statement of the action taken thereon. (31 U.S.C. 665) Hereafter, any appropriation required to be apportioned pursuant to section 3679 of the Revised Statutes, as amended, may be apportioned on a basis indicating the need for a supplemental or deficiency estimate of appropriation to the extent necessary to permit payment of such pay increases as may be granted those employees (commonly know as wageboard employees) whose compensation is fixed and adjusted from time to time in accordance with prevailing rates. (5 U.S.C. 5102, 5341) (31 U.S.C. 665a) NOTES Except as indicated below, this is derived from section 1211 of Public Law 759, 81st Congress 64 Stat. 765. Subsection (e) (i).—The reference to heads of agencies was added by the Act of August 28, 1957, 71 Stat. 440. Subsection (g). The last sentence of the subsection was added by the Act of August 1, 1956, 70 Stat. 783. In addition to the exceptions specifically provided for in the Anti-deficiency Act, some appropriations or programs have been specifically exempted from the operation of the Act, in whole or in part, by other law. [Prepared by the Office of Management and Budget] STATUS OF AMOUNTS RESERVED OR OTHERWISE UNAPPORTIONED It should be noted that in most instances the funds here involved are not being "impounded", in the sense that they would be permanently withheld or used for other purposes. Actually, most of these actions involve deferrals, and the funds will be spent for the purpose for which they were appropriated whenever such action is dictated by consideration of all the circumstances involved. The following table is based on information now available. To more fully answer the question, a more complete list is being developed and will be furnished at a later date. 60-337-71 [From Department of Housing and Urban Development, Office of the Secretary, Office of Budget, March 1, 1971] TABLE 1.-DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, SELECTED LIST OF PROGRAM FUNDS A VAILABLE FOR USE FISCAL YEAR 1971 Hon. SAM J. ERVIN, EXECUTIVE OFFICE OF THE PRESIDENT, BUREAU OF THE BUDGET, Washington, D.C., May 28, 1969. Chairman, Subcommittee on Separation of Powers, U.S. Senate, DEAR MR. CHAIRMAN: Since the receipt of your letter of December 6, 1968, addressed to my predecessor, the Bureau of the Budget staff has been seeking to provide answers to the specific inquiry contained therein. Facts with regard to the illustrative cases you requested are set forth in the enclosure to this letter. Unfortunately, we did not find examples in some of the areas you had in mind. In the use of the endorsed materials, or in a study of the system of apportionments and reserves, it is essential that there be an understanding of certain points that are often overlooked. First, as a practical matter, reserves are established not only to save money but also to defer obligations (and therefore expenditures). Congress sometimes provides an appropriation or other budget authority with the intent that it last for more than a year, sometimes to cover program needs for two, three, or more years. In our apportionment system, we operate on a fiscal year basis. Therefore there are occasion when we place outside of current apportionments a part of an appropriation which we expect to apportion in the following year or years, and we call this a "reserve." There are also cases where the apportionment system is used to effectuate a postponement within the fiscal year, and amounts set aside early in the year for consideration later when agency plans are more nearly complete are also called "reserves." Such cases are not truly "impoundments" in the sense of sequestering or withdrawing funds from being used for their intended purposes. Second, it is sometimes difficult to establish where the true initiative for a reserve originated. Under the law and the regulations, agency heads (or their designees) place before us their suggestions for apportionments and reserves to assist us in exercising our apportionment responsibility; these appear on the apportionment forms under the heading "Information submitted by agency" although in practice they are usually described as "apportionment requests." In those cases when our action coincides with the agency request, we are, from a technical standpoint, merely agreeing with the agency heads' own decisions to avoid using the "reserve" portion of the funds currently. On the other hand, it is possible that the agency heads' decision was influenced by others; there is reason to think that, in the area of Defense, under previous Administrations, the President and the Secretary of Defense came into agreement on certain reserves before an apportionment form was filled out, and my predecessors merely ratified formally the reserve proposals coming to us from the Department of Defense, but which in fact may have reflected Presidential thinking. It is logical, I believe to expect that the President and a Cabinet officer may arrive at mutual decision on such matters in a manner that may not be formally recorded as the act of either party. Thus, it may be that the idea for a reserve was originated by agreement between the agency head and the President; or by the agency head alone; or by independent action of the Budget Director (in a case where the agency head's request is revised in the Bureau). Third, there may be difficulty in distinguishing when a Director of the Bureau of the Budget has acted "in the name of the President", as your inquiry puts it, and when he has acted in his own name. The Director, alone among all agency heads, is appointed by the President without Senatorial confirmation, and he is expected to be responsive to the President's desireswithin the constraints of the law, of course. The Director sees the President or talks with him on the telephone daily, sometimes 3 or 4 times in the course of a day. Only in the most exceptional circumstances in the past has a Director taken a position publicly differing from a posture adopted by the President. It is difficult, then, to tell when a Director is purely exercising a completely independent judgment, and when his actions reflect his interpretation of the President's attitude towards a matter. Of course, even in the latter case, his interpretation may be incorrect, and therefore the President cannot be charged with having specifically approved them, but he is nevertheless responsible. These factors, along with the large volume of apportionment actions for the whole Government in the period 1945 to 1969, make it impractical for us to undertake a general survey of the type originally envisioned. However, I shall be glad to assist you and the Subcommittee as much as possible in the light of our resources and circumstances. Sincerely, Enclosure. ROBERT P. MAYO, Director. EXAMPLES OF RESERVES ESTABLISHED UNDER SPECIFIED A. Reserves established by the Bureau of the Budget, in the name of the President, which affected specific programs or projects A-1-Public works area [No example found.] A-2-Human resources area In the fiscal year 1967, reserves were established against various appropriations in accordance with a program of deferrals and reductions discussed by the President in his economic message of September 8, 1966, and by the then Director of the Bureau of the Budget in his later testimony before the Ways and Means Committee. For example, a reserve of $1,892,000 was established against the appropriation of $64,922,000 to the National Institute of Child Health and Human Development. These funds were not obligated and became a part of the unobligated balance which lapsed on June 30, 1967. A-3-Military procurement area (a) In the fiscal year 1963, there was reserved, at the request of the Department of Defense, $191.6 million which had been added by Congress for the RS-70 weapon systems program, over and above the $171 million budgeted therefor in the appropriation, "Research, development, test, and evaluation, Air Force." These funds were to initiate procurement of more aircraft than originally programmed. Later in the year, $35.8 million of the reserve was released at the request of the Department and used for the RS-70 program. The balance was subsequently applied against fiscal year 1964 requirements for the program. (b) In the fiscal years 1967 and 1968, the Department of Defense requested that funds of $153.5 million and $269 million, respectively, available for the Nike-X system in the account, "Procurement of Equipment and Missiles, Army," be placed in budgetary reserve. The program, is approved in the executive branch, did not require these procurement funds during those time periods. The Bureau of the Budget placed the funds in reserve, as requested. In the fiscal year 1969, $284.6 million of these funds were used to offset appropriation requirements for the year in the same account, in accordance with the fiscal year 1969 appropriation act. The balance of $137.9 million has been released for the Sentinel program. B. Reserves established by the Bureau of the Budget, in the name of the President, which affected a group of related programs B-1-Public works area (a) As a part of an overall effort to control inflationary trends in the economy, the President placed a limit of $4,460 million on Federal highway fund obligations in the fiscal year 1968 budget. At the beginning of fiscal year 1968, under the provisions of the Federal-aid Highway Act of 1966, $4,850 million of advance 1969 contract authority became available. This new authority plus the amount available from prior year authorizations provided a total of $7,500 million for potential obligation. In line with the budgetary decision to limit fiscal year 1968 obligations to $4,460 million and provide quarterly scheduling of obligations to assist in control of inflationary trends, á first quarter apportionment of $2,290 million was made and a reserve of $5,210 million was established. This reserve |