Request to Reclassify Deferral No. D79-50 as a Rescission

B-115398.33 March 20, 1979

The Honorable Carl D. Perkins Chairman Committee on Education and Labor House of Representatives

Dear Mr. Chairman:

This is in reply to your request that we take action under section 1015 of the Impoundment Control Act of 1974, 31 U.S.C. Sec. 1405 (1976), to reclassify Deferral No. D79-50 as a rescission. D79-50 purports to:

"* * * delay until 1980 obligation of $122,133, 000 which is available for the 1979 Summer Youth Program, established in Part C, Title IV of the Comprehensive Employment and Training Act (CETA). * * *"

It is your view that the proposed deferral is actually a proposed rescission because it will eliminate from the Summer Youth Program for 1979 165, 000 jobs that the Congress intended to fund. Moreover, you assert; that funds for fiscal year 1979 Comprehensive Employment and Training Act (CETA) programs are available for only 1 year, and that under their Impoundment Control Act the delay of obligation of 1-year monies for the entire fiscal year for which they were appropriated constitutes a proposed rescission. Due to your need for an early response, we have dispensed with our usual practice of requesting comments from the agencies involved. However, we currently have pending before us a request from the Department of Labor that we determine the period of availability of fiscal year 1979 CETA funds. That request is accompanied by a memorandum from the Solicitor of the Department which we shall consider the position of the Department in the present inquiry.

Funds for CETA programs for fiscal year 1979 were appropriated by the "Joint Resolution Making continuing appropriations for fiscal year 1979, and for other purposes, " Pub. L. No. 95-482, 92 Stat. 1603 (continuing resolution), which was approved October 18, 1978. The continuing resolution, in section 101(a) appropriates:

"Such amounts as may be necessary for continuing the following activities, not otherwise provided for, which were conducted in fiscal year 1978, but at a rate for operations not in excess of the current rate:

* * * * *

"activities under the Comprehensive Employment and Training Act, except that such activities shall be continued at a rate for operations not in excess of the lower of the current rate or the rate authorized by S. 2570 as passed the House of Representatives * * *."

Section 102 of the continuing resolution provides:

"Appropriations and funds made available and authority granted pursuant to this joint resolution shall be available from October 1, 1978, and shall: remain available until (a) enactment into law of an appropriation for any project or activity provided for in this joint resolution, or (b) enactment of the applicable appropriation Act by both Houses without any provision for such project or activity, or (c) September 30, 1979, whichever first occurs. "

Section 102 makes funds appropriated by the continuing resolution available only until September 30, 1979, at the latest, which would appear to support your view that fiscal year 1979 CETA monies are 1-year funds. On the other hand, section 4(b) of the Comprehensive Employment and Training Act of 1973, 29 U.S.C. Sec. 802(b) (1976), which was in effect when the continuing resolution was enacted, provided:

"Notwithstanding any other provision of law, unless enacted in specific limitation of the provisions of this subsection, any funds appropriated to carry out this Act which are not obligated prior to the end of the fiscal year for which such funds were appropriated, shall remain available for obligation during the succeeding fiscal year, and any funds obligated in any fiscal year may be expended during a period of two years from the date of obligation."

This provision, in effect, makes all funds appropriated to carry out CETA available for 2 years, unless a subsequent Congress takes specific action to overcome it.

We have long followed the principle of statutory construction that when there is a seeming conflict between a general statutory provision and a specific statutory provision, and the general provision is broad enough to: include the subject matter to which the specific relates, the specific provision will be considered an exception to the general provision. See, e.g., B-163375, September 2, 1971. In this way we can give- effect to both provisions.

In the present instance, section 102 of: the continuing resolution applies to appropriations for programs under about-20 acts. Section 4 of CETA applied only to appropriations under CETA. Thus, the provision in the continuing resolution is the general provision; and that in CETA is the specific provision. It follows that funds appropriated by the continuing resolution are, in general, available only until September 30, 1979. except funds appropriated to carry out CETA, which remain available until September 30, 1980.

This interpretation is supported by the specific language of section 4(b) of CETA which provides that funds are to remain available during the fiscal year subsequent to the one in which they were appropriated. "[n]otwithstanding any other provision of law, unless enacted in specific limitation of the provisions of this. subsection. " Although the continuing resolution is the later enactment, it is clear that it contains no provision which limits the availability of CETA. funds in particular to 1 year. Therefore, the condition in the CETA legislation has not been met and it remains controlling.

It could be argued that the 2-year provision referred to above expired on September 30, 1978,- with the rest of the CETA authorization; However, the Comprehensive. Employment and Training Act Amendments of 1978, Pub. L. No. 95-524, which was approved October 27, 1978, subsequent to the enactment of the continuing resolution, extended the authorization for CETA programs. . - Section 112(c) of this. act is. identical to section. 4(b) of the 1973 CETA, again making CETA funds available. for 2 years. Under the rule of statutory construction that the more recent of conflicting provisions, being the later expression of congressional intent, is controlling, section 112(c) of the CETA Amendments would prevail over section 102 of the continuing resolution. See B-118678, June 11, 1976; 55 Comp. Gen. 117 (1975); 53 Comp. Gen. 695 (1974).).

In your letter you point out that the continuing resolution appropriates in terms of "rate of operations. " You question whether such language can give rise to any unobligated balances. Of course, if there were no unobligated balance at the end of the fiscal year, the provisions of section 4(b) of CETA (or section 112(c) of the (:ETA Amendments) would not apply.

We have stated in a number of decisions that the term "current rate of operations" used in continuing resolutions refers to an ascertainable sum of money. We believe that the term is equivalent to the total appropriation or the total funds which were available for obligation for the program during the previous fiscal year. See, e.g., B-152554, November 4, 1974; B-152554, December 6, 1963. By determining the "rate authorized by S. 2570 as passed by the House of Representatives" and the total funds available in 1978 for the program (the ' current rate"), and selecting the lesser of the two sums, we can ascertain the precise sum of money appropriated for CETA programs by the 1979 continuing resolution. Should this entire sum not be obligated by the end of the fiscal year, there will be an unobligated balance, which under the terms of CETA will continue available until September 30, 1980.

For the reasons stated, we must conclude that funds appropriated for CETA programs by the continuing resolution are available until September 30, 1980. It follows that the provision of section 1012(a) the Impoundment Control Act of 1974, 31 U.S.C. Sec. 1402 (a), which requires the submission of a rescission message "whenever all or part of budget authority provided for only one year is to be reserved from obligation for such fiscal year * * *, " does not apply.

You assert that the proposed action in D 9-50 is a rescission rather than a deferral of budget authority because the executive branch is proposing to cut the Summer Youth Program by 165,000 jobs in 1979. The Impoundment Control Act, however, does not speak of specific programs, but rather of budget authority. Section 1011(1)(A) defines "deferral of budget authority' as including:

"withholding or delaying the obligation or expenditure of budget authority (whether by establishing reserves or otherwise) provided for projects or activities * * *." (31 U.S.C. Sec. 1401(1)(A). )

The President notifies the Congress of proposed deferrals of budget authority by submitting a special message under section 1013(a) of the Act.

Section 1012(a), on the other hand, covers rescissions. It provides that a rescission message must be submitted to Congress:

"Whenever the President determines that all or part of any budget authority will not be required to carry out the full objectives or scope of programs for which it is provided or that such budget authority should be rescinded for fiscal policy or other reasons * * *. " (31 U.S.C. Sec. 1402(a).)

As we have previously stated:

"[T]he language of sections 1012 and 1013 conveys a clear impression that the use of the two sections depends not on the purpose or legal authority of a proposed withholding action, but upon its duration. If it is to be a permanent withholding of funds; i.e., the funds will never be spent, section 1012 is to be used. If the withholding action is to be only temporary, section 1013 is to be used. " (54 Comp. Gen. 453, 463 (1974).)

In the present instance, the Administration has indicated that it does not intend to obligate $122,133, 000 of its budget authority for the CETA Summer Youth Program during fiscal year 1979. However, the Administration has indicated that it intends to fully obligate these funds: during fiscal year 1980. The proposed withholding action is thus temporary in nature rather than permanent. It follows that under the Impoundment Control Act of 1974 the proposed action of the executive branch has been properly categorized as a deferral of budget authority, rather than as a rescission.

In so deciding, we must acknowledge that the practical effect of the Administration's proposal is to "rescind" a large part of the 1979 Summer Youth Program, since 165, 000 less people will be employed this summer than would be employed if the full budget authority were obligated this year. Moreover, although the deferred budget authority will be obligated in fiscal year 1980, the jobs lost this summer can never be restored. However, the Summer Youth Program is only one of the "activities" for which CETA budget authority was provided. The Secretary may quite properly exercise his discretion to expend all CETA funds on other activities which do not include this program, in the absence of any ear marking or similar congressional directive in law to the contrary. Therefore, we are constrained by the language of the Impoundment Control Act, under which the temporary delay of obligation of budget authority does not constitute a proposed rescission.

For the reasons stated, we are unable to comply with your request.

Sincerely yours,

R.F. KELLER Deputy Comptroller General of the United States