         Authority of the Secretary of the Treasury Under the
             New York City Loan Guarantee Act of 1978

T h e a u th o rity o f th e S e c re ta ry o f th e T re a s u ry to issue g u a ra n te e s u n d e r th e N e w Y ork
   C ity L o an G u a ra n te e A c t o f 1978, P .L . N o. 9 5 -3 3 9 and P .L . N o . 95-415, w as not
   affected by a rid e r in th e S en ate a p p ro p ria tio n bill, H .R . 7631, u n d e r § 101(a)(3) o f the
   C o n tin u in g A p p ro p ria tio n s R e so lu tio n , P .L . N o. 96-369, 94 S tat. 1351.

S ectio n 101(a)(3) o f th e C o n tin u in g A p p ro p ria tio n s R e so lu tio n w a s in ten d ed to distin g u ish
   b etw een m a tte rs co n sid e re d by b o th th e S en ate an d th e H ouse o f R e p resen tativ es in
   th eir a p p ro p ria tio n s bills, fo r w h ic h th e m o re re stric tiv e o f th e tw o p ro v isio n s on an
   a g e n c y 's a u th o rity is to g o v e rn , and m a tte rs c o n sid e re d by o n ly o n e H ouse in its
   a p p ro p ria tio n s bill, for w h ic h th e a u th o rity an d c o n d itio n s o f F Y 1980 a p p ro p ria tio n s
   a re to g o v ern .

T h e re stric tio n on th e S e c re ta ry o f th e T re a s u r y ’s a u th o rity to issue g u ara n te e s u n d er the
   N e w Y o rk C ity L oan G u a ra n te e A c t o f 1978 is fo u n d o n ly in th e S en ate v ersio n o f the
   a p p ro p ria tio n s bill p ertain in g to th e N e w Y ork C ity L o an G u a ra n te e p ro g ra m and had
   not been co n sid ered by the H ouse o f R e p resen tativ es; th e re fo re , th e S en ate rid e r did
   not o p e ra te (u n d e r § 101(a)(3) o f th e C o n tin u in g A p p ro p ria tio n s R e so lu tio n ) to restrict
   th e S e c re ta ry ’s a u th o rity to issue N e w Y o rk C ity loan g u aran tees.

T h e A tto rn e y G e n e ra l d o es n ot h av e th e a u th o rity to issue o p in io n s on qu estio n s arising
   o u t o f a business tra n sa c tio n b etw e e n a p riv a te p erso n an d th e g o v e rn m e n t w h en the
   p riv a te p erso n has insisted on re c e iv in g an A tto rn e y G e n e ra l op in io n for his benefit and
   th e req u estin g d e p a rtm e n t h ead has no real c o n c e rn a b o u t th e question.

T h e A tto rn e y G e n e ra l w ill issue o p in io n s re lated to business tran sactio n s b etw e e n the
   g o v e rn m e n t an d p riv a te perso n s o n ly w h e n th e tra n sa c tio n raises a substantial and
   g en u in e issue o f law arising in th e ad m in istratio n o f a D e p a rtm e n t.

                                                                                                O ctober 2, 1980

T h e S ecreta ry of th e T reasury


M y   D e a r M r . S e c r e t a r y ; Y o u have asked my opinion w hether a
rider contained in the Senate-passed version o f H.R. 7631, concerning
adm inistrative funds for the N ew York City Loan G uarantee program,
affects your authority to issue guarantees pursuant to the New York
C ity Loan G uarantee A ct o f 1978, Pub. L. Nos. 95-339 and 95-415.
F o r reasons elaborated below, I conclude that the rider in question has
not taken effect, and therefore does not restrict your authority under
the G uarantee Act.
   In pertinent part, H.R. 7631, as passed by the Senate, provided:
              F o r necessary adm inistrative expenses as authorized by
           the N ew York City Loan G uarantee A ct o f 1978 (Public
           L aw 95-415), $922,000: Provided, That none o f these funds

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       m ay be used to adm inister programs to issue loan guarantees
       to New York City fo r the purpose o f perm itting the M unici­
       p a l Assistance Corporation to use the proceeds o f its borrow­
       ings in fiscal years 1981 and 1982 to m eet the City's financ­
       ing needs after fiscal year 1982.
T he italicized language is the rider, which was a com m ittee am end­
ment. 126 Cong. Rec. S 12,589 (daily ed. Sept. 15, 1980). T here is no
provision similar to the rider in the House-passed version o f the bill.
   As fiscal year 1980 drew to a close, there was no opportunity for the
normal conference procedure to resolve differences between the bills,
and Congress found it necessary to provide continuing appropriations
through H.J. Res. 610 for a num ber o f agencies having pending appro­
priations. F o r agencies whose appropriations had passed both Houses,
the Resolution provides as follows, in § 101(a)(3):
         W henever the am ount which would be made available
      or the authority w hich would be granted under an A ct
      listed in this subsection as passed by the House as of
      O ctober 1, 1980, is different from that w hich would be
      available or granted under such A ct as passed by the
      Senate as of O ctober 1, 1980, the pertinent project or
      activity shall be continued under the lesser am ount or the
      m ore restrictive authority: Provided, T hat w here an item is
      included in only one version o f an A ct as passed by both
      Houses as o f O ctober 1, 1980, the pertinent project or
      activity shall be continued under the appropriation, fund,
      or authority granted by the one House, but at a rate for
      operations not exceeding the current rate o r the rate per­
      mitted by the action o f the one House, w hichever is
      lower, and under the authority and conditions provided in
      applicable appropriation A cts for the fiscal year 1980.
T he apparent purpose of § 101(a)(3) is to distinguish between m atters
considered by both Houses, for which the m ore restrictive o f the tw o
provisions is to govern, and m atters considered by only one House, for
w hich “authority and conditions” are to revert to those found in fiscal
year 1980 appropriations.
   Because the rider is found only in the Senate version o f the underly­
ing 1981 appropriations bill, and the issue of restricting the m ode of
administering New York City loan guarantees was not taken up in the
House, § 101(a)(3) of H.J. Res. 610 specifies that the rider falls within
the proviso as an “ item included in only one version o f an A c t.”
Therefore, it is superseded by the “authority and conditions” found in
applicable 1980 appropriations.

                                     65
   This reading o f the resolution is confirm ed by the following explana­
tion provided by the M anagers in the C onference Com mittee R eport on
H.J. Res. 610:
             T he Com m ittee o f C onference agrees that, for the pur­
          poses o f this resolution in interpreting the language con­
          tained in Section 101(a)(3) concerning restrictive authority
          included in only one version o f an A ct as passed by the
          House and Senate, the restrictive authority, as it applies to
          the proviso concerning the N ew York City Loan G uaran­
          tee Program , contained in the 1981 H U D Independent
          A gency A ppropriation A ct, must have been carried in the
          applicable A ppropriation A ct for Fiscal Year 1980, before
          it is operative in Fiscal Year 1981.
T he rider was “included in only one version of an A c t” within the
meaning o f the proviso to § 101(a)(3), and was therefore, by the terms
o f the proviso, superseded by the applicable appropriation act for fiscal
year 1980, w hich contains no such limitation. I therefore conclude that
the rider has not taken effect, and does not restrict your authority in
administering the G uarantee Act.*

                                                        Sincerely,
                                                        B e n ja m in    R.   C iv il e t t i




    •A s you know , A tto rn ey G eneral Elliot R ichardson adopted the formal policy on O ctober 1, 1973,
o f not issuing opinions regarding the validity o f guarantees o r o ther obligations issued by federal
agencies unless the opinion request raises a genuine issue o f law. Successive A ttorneys G eneral,
including myself, have adhered to this policy. In addition, A tto rn eys G eneral have opined that they do
not have the authority to issue opinions w hen it is apparent that the request has been made, not
because the requestor has any real co ncern about his authority, but because private persons, w ho
engage in transactions w ith the U nited States, have insisted upon such an opinion for their benefit. 39
Op. A tt'y G en. II, 17-19 (1937); 20 Op. A tt’y G en. 463, 464 (1892). Because your request raises a
genuine issue o f law, I believe that an A tto rn ey G en eral’s opinion on the narrow issue presented is
appropriate. I am also persuaded that this is a legal issue o v er w hich you have a serious concern and,
for that reason, I believe 1 have the au th o rity to issue this opinion. I am troubled, how ever, by the
insistence o f private law yers involved in the N ew York guarantee transaction on receiving an
A ttorn ey G eneral opinion addressing this question. I ask you to inform private persons w ho transact
business w ith y our departm ent that the A tto rn ey G eneral will not issue opinions solely because they
feel it is im portant to protect them o r guide them in their transactions, and that opinions related to
business transactions w ith the governm ent will be issued only w hen the transaction raises a substantial
and genuine issue o f law arising in the adm inistration o f a departm ent.
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