B-164081, JUNE 4, 1968, 47 COMP. GEN. 707

B-164081, JUNE 4, 1968, 47 COMP. GEN. 707

STATES - FEDERAL AID, GRANTS, ETC. - EDUCATIONAL AGENCIES AFFECTED BY FEDERAL ACTIVITIES - OTHER FEDERAL PAYMENTS NOTWITHSTANDING THE RESTRICTION ON THE USE OF 1968 FUNDS APPROPRIATED BY PUBLIC LAW 90-132 TO THE OFFICE OF EDUCATION UNDER THE HEADING "SCHOOL ASSISTANCE IN FEDERALLY AFFECTED AREAS" TO CARRY OUT LEGISLATIVE ENACTMENTS AFTER JUNE 30, 1967, SECTION 204 OF PUBLIC LAW 90-247 DATED JANUARY 2, 1968, ELIMINATING THE REQUIREMENT IN PUBLIC LAW 874, 81ST CONGRESS, THAT PAYMENTS TO LOCAL EDUCATIONAL AGENCIES BE REDUCED BY AMOUNTS "DERIVED FROM OTHER FEDERAL PAYMENTS" IS EFFECTIVE. THE RETROACTIVE ASPECT OF SECTION 208 OF PUBLIC LAW 90-247, PRESCRIBING THAT SECTION 204 OF THE ACT ,SHALL BE DEEMED TO HAVE BEEN ENACTED PRIOR TO JUNE 30, 1967, AND SHALL BE EFFECTIVE FOR FISCAL YEARS BEGINNING THEREAFTER," OVERCOMING THE APPROPRIATION RESTRICTION AND, THEREFORE, PUBLIC LAW 874 EDUCATIONAL PAYMENTS ARE NOT REQUIRED TO BE REDUCED BY THE AMOUNT OF ANY OTHER FEDERAL PAYMENTS.

TO THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE, JUNE 4, 1968:

THIS IS IN REPLY TO YOUR LETTER OF MAY 2, 1968, IN WHICH YOU REQUEST A DECISION AS TO WHETHER FUNDS APPROPRIATED BY THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE APPROPRIATION ACT, 1968, PUBLIC LAW 90 132, APPROVED NOVEMBER 8, 1967, 81 STAT. 390, TO THE OFFICE OF EDUCATION UNDER THE HEADING "SCHOOL ASSISTANCE IN FEDERALLY AFFECTED AREAS" ARE AVAILABLE FOR PAYMENT TO LOCAL EDUCATIONAL AGENCIES IN ACCORDANCE WITH THE PROVISIONS OF PUBLIC LAW 874, 81ST CONGRESS, APPROVED SEPTEMBER 30, 1950, AS AMENDED BY SECTIONS 201, 203, 204, 205, 206, AND 207 OF PUBLIC LAW 90- 247 APPROVED JANUARY 2, 1968, 81 STAT. 806-809, OR WHETHER THOSE FUNDS ARE AVAILABLE FOR PAYMENT ONLY IN ACCORDANCE WITH THE PROVISIONS OF PUBLIC LAW 874 AS IT EXISTED PRIOR TO THE INCLUSION OF THOSE AMENDMENTS.

THE QUESTION ARISES BECAUSE OF THE PROVISO IN THAT PART OF THE 1968 APPROPRIATION ACT CITED WHICH READS:

PROVIDED FURTHER, THAT NO PART OF THIS APPROPRIATION FOR PAYMENTS TO LOCAL EDUCATIONAL AGENCIES FOR THE MAINTENANCE AND OPERATION OF SCHOOLS SHALL BE AVAILABLE TO CARRY OUT THE PROVISIONS OF LEGISLATION FOR THIS PURPOSE ENACTED AFTER JUNE 30, 1967. 81 STAT. 391.

PUBLIC LAW 90-247 WAS APPROVED ON JANUARY 2, 1968, MORE THAN 6 MONTHS AFTER THE DATE OF JUNE 30, 1967, STATED IN THE QUOTED PROVISO, BUT PROVIDES IN SECTION 208 THAT:

THE AMENDMENTS MADE BY SECTIONS 201, 203, 204, 205, 206, AND 207 OF THIS PART SHALL BE DEEMED TO HAVE BEEN ENACTED PRIOR TO JUNE 30, 1967, AND SHALL BE EFFECTIVE FOR FISCAL YEARS BEGINNING THEREAFTER. YOU HAVE BEEN UNABLE TO FIND ANY EXPRESSION OF THE LEGISLATIVE INTENT OF THAT SECTION IN ITS LEGISLATIVE HISTORY.

IT IS STATED IN YOUR LETTER THAT THE PRINCIPAL EFFECTS OF THE INTERPRETATION OF THE QUOTED SECTION 208 IN ITS RELATION TO THE QUOTED APPROPRIATION PROVISO ARE IN THE APPLICATION OR NONAPPLICATION OF TWO AMENDMENTS TO PUBLIC LAW 874, 81ST CONGRESS, MADE BY PUBLIC LAW 90 247.

PRIOR TO THE ENACTMENT OF PUBLIC LAW 90-247, PAYMENTS TO LOCAL EDUCATIONAL AGENCIES OTHERWISE COMPUTED UNDER PUBLIC LAW 874 WERE REQUIRED TO BE REDUCED BY THE AMOUNT "DERIVED FROM OTHER FEDERAL PAYMENTS" AS THAT TERM WAS DEFINED IN THAT LAW. THE REQUIREMENT FOR DEDUCTING "OTHER FEDERAL PAYMENTS" AS WELL AS THE DEFINITION OF THAT TERM WAS ELIMINATED BY SECTION 204 OF PUBLIC LAW 90-247. PENDING RESOLUTION OF THE QUESTION RAISED IN YOUR LETTER, THE OFFICE OF EDUCATION ON A PROVISIONAL BASIS HAS CONTINUED TO DEDUCT THE AMOUNT OF SUCH PAYMENTS.

SECTION 3 (B) OF PUBLIC LAW 874, 81ST CONGRESS, AS AMENDED, WAS FURTHER AMENDED BY SECTION 201 (D) OF PUBLIC LAW 89-750 APPROVED NOVEMBER 2, 1966, 80 STAT. 1191, 1210 (CHAMIZAL AMENDMENT) WHICH ADDED A SENTENCE THAT PROVIDED A SPECIAL ENTITLEMENT FOR THE FISCAL YEAR WHICH ENDED JUNE 30, 1967, TO LOCAL EDUCATIONAL AGENCIES WHICH PROVIDED FREE PUBLIC EDUCATION AS A RESULT OF A CHANGE IN RESIDENCE FROM LAND TRANSFERRED TO MEXICO AS PART OF A RELOCATION OF AN INTERNATIONAL BOUNDARY OF THE UNITED STATES. THIS ENTITLEMENT WAS NOT FUNDED DURING THE FISCAL YEAR 1967 BECAUSE OF A PROVISO IN THE 1967 APPROPRIATION ACT, PUBLIC LAW 89-787, APPROVED NOVEMBER 7, 1966, 80 STAT. 1382, 1384, SIMILAR TO THE QUOTED PROVISO OF THE 1968 APPROPRIATION ACT. SECTION 205 OF PUBLIC LAW 90-247 AMENDED THE SENTENCE WHICH HAS BEEN ADDED TO SECTION 3 (B) OF PUBLIC LAW 874, 81ST CONGRESS, BY ADDING BUT IF, BY REASON OF ANY OTHER PROVISION OF LAW, THIS SENTENCE IS NOT CONSIDERED IN COMPUTING THE AMOUNT TO WHICH ANY LOCAL EDUCATIONAL AGENCY IS ENTITLED FOR THE FISCAL YEAR ENDING JUNE 30, 1967, THE ADDITIONAL AMOUNT TO WHICH SUCH AGENCY WOULD HAVE BEEN ENTITLED HAD THIS SENTENCE BEEN SO CONSIDERED, SHALL BE ADDED TO SUCH AGENCY'S ENTITLEMENT FOR THE FIRST FISCAL YEAR FOR WHICH FUNDS APPROPRIATED TO CARRY OUT THIS ACT MAY BE USED FOR SUCH PURPOSE.

AS STATED IN YOUR LETTER A DECISION ON THESE TWO MATTERS WILL HAVE A DIRECT BEARING ON THE APPLICATION OF SECTIONS 2, 3, AND 4 (A) OF PUBLIC LAW 874 (81ST CONGRESS) (20 U.S.C. 237, 238, 239 (A) ( WHICH CONSTITUTE A MANDATORY GRANT PROGRAM, SUBJECT TO THE PRO RATA REDUCTIONS OF SECTION 5 (C) OF THAT LAW (20 U.S.C. 240 (C) ).

OUR EXAMINATION OF THE LEGISLATIVE HISTORY OF PUBLIC LAW 90-247 ALSO RESULTED IN OUR BEING UNABLE TO FIND ANY HELPFUL EXPRESSION OF THE LEGISLATIVE INTENT REGARDING SECTION 208. OUR CONSIDERATION, THEREFORE, TURNS TO THE WORDING USED BY THE CONGRESS.

SECTION 208 APPEARS UNDER THE HEADING "EFFECTIVE DATE" AND BY ITS TERMS ESTABLISHES THAT THE SECTIONS OF THE ACT REFERRED TO THEREIN ARE TO BE EFFECTIVE COMMENCING WITH FISCAL YEAR 1968 AND THEREAFTER. IS THE PHRASE "SHALL BE DEEMED TO HAVE BEEN ENACTED PRIOR TO JUNE 30, 1967" AS USED IN THE SECTION NECESSARY TO ACCOMPLISH THIS PURPOSE? THE FACT THAT THE ANSWER TO THIS QUESTION IS OBVIOUSLY IN THE NEGATIVE SUGGESTS THAT THE PHRASE WAS INSERTED BY THE CONGRESS TO ACCOMPLISH A PURPOSE BEYOND THE MERE ESTABLISHMENT OF EFFECTIVE DATES FOR THE SECTIONS COVERED.

WE RECOGNIZE THAT THE CONGRESS ORDINARILY MIGHT USE LANGUAGE INCLUDING THE PHRASE IN QUESTION TO DO NO MORE THAN SET THE TIME FROM WHICH LEGISLATION IS TO BECOME OPERATIVE. HOWEVER, TWO FACTORS LEAD US TO CONCLUDE OTHERWISE WITH RESPECT TO THE INSTANT SITUATION.

FIRST, WE NOTE THAT IN CONNECTION WITH STIPULATING THE EFFECTIVE DATES OF OTHER PORTIONS OF THE ACT, THE CONGRESS DID NOT INCLUDE LANGUAGE DEALING WITH CONSIDERATIONS OF RETROACTIVE ENACTMENT. SEE SECTIONS 102, 104 (C), 145 (C), AND 202 (81 STAT. 783, 784, 800, 807).

SECOND, NEITHER SECTION 208 NOR ANY SIMILAR LANGUAGE WAS, AS IT PASSED THE HOUSE, IN H.R. 7819, THE ORIGINAL BILL WHICH WAS ULTIMATELY ENACTED AS PUBLIC LAW 90-247. THE SECTION WAS INCLUDED IN THE BILL AS REPORTED OUT ON NOVEMBER 6, 1967, BY THE SENATE COMMITTEE ON LABOR AND PUBLIC WELFARE, AT WHICH TIME THE APPROPRIATION PROVISION IN QUESTION WAS ALSO UNDER CONSIDERATION.

CONSIDERING THE LANGUAGE USED IN SECTIONS OF PUBLIC LAW 90-247 OTHER THAN 208 TO ESTABLISH EFFECTIVE DATES, TOGETHER WITH THE CONTEMPORANEOUS CONGRESSIONAL CONSIDERATION OF THAT ACT AND THE APPROPRIATION ACT, WE CAN ONLY CONCLUDE THAT THE RETROACTIVE ENACTMENT ASPECT OF SECTION 208 WAS SPECIFICALLY DESIGNED TO OVERCOME THE RESTRICTION IN THE APPROPRIATION ACT. TO CONCLUDE OTHERWISE IS TO STATE THAT THE RETROACTIVE ENACTMENT PROVISION OF SECTION 208 IS MEANINGLESS SURPLUS DESPITE THE ACCOMPLISHMENT OF SIMILAR PURPOSES IN OTHER PORTIONS OF THE ACT ITSELF WITHOUT RESORT TO SURPLUS LANGUAGE, A STATEMENT WE DO NOT BELIEVE JUSTIFIED UNDER THE CIRCUMSTANCES INVOLVED.

IT, THEREFORE, FOLLOWS THAT THE WORDS "SHALL BE DEEMED TO HAVE BEEN ENACTED PRIOR TO JUNE 30, 1967" APPEARING IN SECTION 208 OF PUBLIC LAW 90- 247, APPROVED JANUARY 2, 1968, HAS THE SAME EFFECT IN RELATION TO THE QUOTED APPROPRIATION PROVISO APPEARING IN PUBLIC LAW 90-132, APPROVED NOVEMBER 8, 1967, AS ITS ACTUAL ENACTMENT PRIOR TO JUNE 30, 1967, WOULD HAVE HAD. THEREFORE FUNDS APPROPRIATED BY THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE APPROPRIATION ACT, 1968, TO THE OFFICE OF EDUCATION UNDER THE HEADING "SCHOOL ASSISTANCE IN FEDERALLY AFFECTED AREAS" ARE AVAILABLE FOR PAYMENT TO LOCAL EDUCATIONAL AGENCIES IN ACCORDANCE WITH THE PROVISIONS OF PUBLIC LAW 874, 81ST CONGRESS, AS AMENDED BY SECTIONS 201, 203, 204, 205, 206 AND 207 OF PUBLIC LAW 90-247.