    Continuation of Agency Activities During a Lapse in Both
                Authorization and Appropriation

D unng a lapse in both an agency’s authorization and its appropriation, activities may continue only to
   the extent they w ere authorized prior to the enactm ent o f any specific lapsed authorization, and
   only to the extent they fit w ithin the “ em ergency” exception to the Antideficiency Act.

                                                                                        September 17, 1982

            MEMORANDUM OPINION FOR THE CHIEF COUNSEL,
                FEDERAL RAILROAD ADMINISTRATION

   We understand that the Federal Railroad Administration (FRA) may soon face
a lapse in both authorization for certain program activities and appropriations. As
discussed in a telephone conversation on August 10, 1982, between members of
our respective staffs, it is the view of this Office that, as a general matter, in such a
situation the agency may continue program activities that are authorized by
currently effective substantive legislation and fit within the “ emergency” excep­
tion to the Antideficiency Act, 31 U.S.C. § 665 (1976). For this purpose, a
“ substantive” statute is one authorizing or requiring an agency to conduct
program activities (e.g., regulation, education, enforcement).
   The general rule relating to a lapse in an agency’s authorization1 is that
activities continue to be authorized, notwithstanding the lapse of a specific
authorization, to the extent that they were authorized prior to the enactment of the
specific authorization. We caution, however, that we have not examined any
specific legislation relating to the FRA. Therefore, we are not in a position to
advise, and we do not advise, what particular activities of the FRA might
continue to be authorized.
   The general rules relating to a lapse in appropriations have been thoroughly set
forth in two Attorney General opinions and a number of Bulletins from the Office
of Management and Budget. Very generally, under the Antideficiency Act, all


   1 As a general rule, most activities carried out by an agency are permanently authorized by that agency's organic
legislation or other statutes that do not have expiration dates. If, however, authorization for an agency's activities is
extended by Congress in a statute having an expiration date or in bills traditionally adopted annually which authorize
both specific activities and appropriations for a particular fiscal year, then the authority to engage in those activities
expires unless authority to continue them can be derived from other statutes. In contrast to a lapse in appropriations,
discussed in the text below, a lapse in the statutory authonty of an agency to conduct a particular activity results in
the inability o f the agency to continue that activity In other words, there is no “ exception” that permits continuance
of previously authorized activity analogous to the exception under the Antideficiency Act which permits the
continuance of certain otherwise authorized activities during a lapse in appropriations


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activities of the agency must cease except those that are necessary to protect life
and property. However, we have not examined, and so we do not advise upon, the
extent to which the FRA’s activities can properly be considered to be within the
emergency exception.
   These are the two general rules relating to lapse in authorizations and appropri­
ations. We see no reason why either of these would differ as applied to the
situation in which, as we understand it, the FRA now finds itself, that is, faced
with a possible lapse of both specific authorizations and the appropriation.
Rather, we believe that the scope of the agency’s authority to continue program
activities, including, as necessary, to obligate funds in support of those activities,
must be determined by application of both general rules, as outlined above. The
result in such a case is that authorized, emergency activities may continue.

                                                    L a r r y L . S im m s
                                          D eputy Assistant Attorney General
                                               Office c f Legal Counsel




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