B-111810, MARCH 9, 1967, 46 COMP. GEN. 699

B-111810, MARCH 9, 1967, 46 COMP. GEN. 699

APPROPRIATIONS - APPORTIONMENT - UNUSED FUNDS - REAPPORTIONMENT THE UNUSED FUNDS APPROTIONED TO A STATE FOR THE OPERATION OF THE SCHOOL BREAKFAST PROGRAM AND THE NONFOOD ASSISTANCE PROGRAM AUTHORIZED BY THE CHILD NUTRITION ACT OF 1966, PROPERLY MAY BE FURTHER APPORTIONED IN ACCORDANCE WITH THE FORMULA PROVIDED IN SECTION 4 OF THE NATIONAL SCHOOL LUNCH ACT, 42 U.S.C. 1753, FOR THE INITIAL APPORTIONMENT OF APPROPRIATED FUNDS, ABSENT EVIDENCE OF A CONTRARY INTENT IN THE LEGISLATIVE HISTORY OF THE NATIONAL SCHOOL LUNCH ACT. HOWEVER, THE SECTION 4 FORMULA APPLYING TO THE SCHOOL BREAKFAST PROGRAM ONLY WHEN A FISCAL YEAR APPROPRIATION EXCEEDS THE LIMITATION PRESCRIBED, A LESSER AMOUNT HAVING BEEN APPROPRIATED FOR THE 1967 FISCAL YEAR, ANY UNUSED 1967 FUNDS ARE NOT AVAILABLE FOR FURTHER APPORTIONMENT UNDER THE SECTION 4 FORMULA UNTIL THE REMAINING STATES HAVE BEEN GIVEN AN OPPORTUNITY TO SHARE IN THE UNUSED FUNDS UP TO THE SUM THEY WOULD HAVE BEEN ENTITLED TO RECEIVE HAD THE PRESCRIBED LIMITATION THAT IS NOT SUBJECT TO THE SECTION 4 FORMULA BEEN APPROPRIATED FOR THE PROGRAM.

TO THE SECRETARY OF AGRICULTURE, MARCH 9, 1967:

REFERENCE IS MADE TO LETTER OF JANUARY 27, 1967, FROM YOUR DEPUTY ASSISTANT SECRETARY, RODNEY E. LEONARD, ASKING OUR OPINION CONCERNING THE FURTHER APPORTIONMENT OF FUNDS APPORTIONED TO A STATE IN THE OPERATION OF THE SCHOOL BREAKFAST PROGRAM AND THE NONFOOD ASSISTANCE PROGRAM BUT WHICH CANNOT BE USED BY THE STATE.

THE ABOVE PROGRAMS WERE AUTHORIZED BY THE CHILD NUTRITION ACT OF 1966, PUBLIC LAW 89-642, APPROVED OCTOBER 11, 1966, 80 STAT. 885, 42 U.S.C. 1771, AND THE PROVISIONS REGARDING THE APPORTIONMENT OF FUNDS PROVIDED FOR THE PROGRAMS ARE SET OUT IN SECTIONS 4 (B) AND 5 (B) THEREOF.

SECTION 4 (B), 42 U.S.C. 1773, PERTAINS TO THE SCHOOL BREAKFAST PROGRAM AND PROVIDES AS OLLOWS:

OF THE FUNDS APPROPRIATED FOR THE PURPOSES OF THIS SECTION, THE SECRETARY SHALL FOR EACH FISCAL YEAR, (1) APPORTION $2,600,000 EQUALLY AMONG THE STATES OTHER THAN GUAM, THE VIRGIN ISLANDS, AND AMERICAN SAMOA, AND $45,000 EQUALLY AMONG GUAM, THE VIRGIN ISLANDS, AND AMERICAN SAMOA, AND (2) APPORTION THE REMAINDER AMONG THE STATES IN ACCORDANCE WITH THE APPORTIONMENT FORMULA CONTAINED IN SECTION 4 OF THE NATIONAL SCHOOL LUNCH ACT, AS AMENDED.

SECTION 5 (B), 42 U.S.C. 1774, PERTAINS TO THE NONFOOD ASSISTANCE PROGRAM AND PROVIDEES IN PERTINENT PART AS FOLLOWS:

THE SECRETARY SHALL APPORTION THE FUNDS APPROPRIATED FOR THE PURPOSES OF THIS SECTION AMONG THE STATES DURING EACH FISCAL YEAR ON THE SAME BASIS AS APPORTIONMENTS ARE MADE UNDER SECTION 4 OF THE NATIONAL SCHOOL LUNCH ACT, AS AMENDED * * *.

SECTION 4 OF THE NATIONAL SCHOOL LUNCH ACT, 42 U.S.C. 1753, REFERRED TO IN THE ABOVE SECTIONS 4 (B) AND 5 (B) OF THE CHILD NUTRITION ACT OF 1966, SETS FORTH A SPECIFIC FORMULA FOR THE APPORTIONMENT OF AVAILABLE FUNDS AMONG THE STATES AND THEN PROVIDES IN PERTINENT PART THAT:

IF ANY STATE CANNOT UTILIZE ALL FUNDS SO APPORTIONED TO IT * * * THE SECRETARY SHALL MAKE FURTHER APPORTIONMENTS TO THE REMAINING STATES IN THE SAME MANNER.

IT IS EXPLAINED THAT YOUR DEPARTMENT DESIRES TO MAKE FURTHER APPORTIONMENTS OF SCHOOL BREAKFAST PROGRAM AND NONFOOD ASSISTANCE PROGRAM FUNDS, NOT UTILIZED BY STATES, IN THE SAME MANNER AS FURTHER APPORTIONMENTS OF UNUSED FUNDS ARE MADE UNDER THE SCHOOL LUNCH PROGRAM.

THE FORMULA CONTAINED IN SECTION 4 OF THE NATIONAL SCHOOL LUNCH ACT MUST BE FOLLOWED IN THE CASE OF FURTHER APPORTIONMENTS OF UNUSED FUNDS UNDER THAT ACT AS WELL AS WHEN ORIGINAL APPORTIONMENTS ARE MADE. CONSEQUENTLY, SINCE BOTH NONFOOD ASSISTANCE PROGRAM FUNDS AND SCHOOL BREAKFAST PROGRAM FUNDS (AVAILABLE UNDER SECTION 4 (B) (2) ( ARE REQUIRED TO BE APPORTIONED IN ACCORDANCE WITH THAT FORMULA, IT REASONABLY MAY BE CONCLUDED THAT THE CONGRESS INTENDED THAT ANY UNUSED FUNDS PROVIDED UNDER SECTION 4 (B) (1) AND SECTION 5 (A) ALSO SHOULD BE AVAILABLE FOR APPORTIONMENT IN THE SAME MANNER. FURTHERMORE, SINCE SUCH CONCLUSION APPEARS TO BE AN INFERENCE THAT REASONABLY WOULD BE DRAWN FROM THE LANGUAGE INVOLVED, IT WOULD SEEM THAT IF SUCH USE OF THE FUNDS WAS NOT INTENDED, THERE WOULD BE SOME DISCLOSURE OF SUCH DIFFERENT INTENT IN THE DEBATES, REPORTS, OR OTHER LEGISLATIVE HISTORY OF THE ACT.

NOT ONLY HAS NO DIFFERENT INTENT BEEN FOUND IN THE LEGISLATIVE HISTORY OF THE ACT BUT, AS POINTED OUT IN THE LETTER FROM THE DEPUTY ASSISTANT SECRETARY, THE LEGISLATIVE HISTORY DOES CONTAIN A NUMBER OF REFERENCES TO OPERATIONS UNDER THE NATIONAL SCHOOL LUNCH ACT AND TO THE DESIRE OF THE CONGRESS TO HAVE THE NEW PROGRAMS CONDUCTED IN A SIMILAR MANNER.

CONSEQUENTLY, IT IS OUR VIEW THAT UNUSED FUNDS OF EACH OF THE PROGRAMS PROPERLY MAY BE FURTHER APPORTIONED AS PROVIDED IN SECTION 4 OF THE NATIONAL SCHOOL LUNCH ACT. THAT SUCH CONCLUSION IS SOUND APPEARS TO BE SUPPORTED BY THE FACT THAT FURTHER APPORTIONMENTS ARE MADE OF UNUSED NONFOOD ASSISTANCE FUNDS APPROPRIATED PURSUANT TO THE NATIONAL SCHOOL LUNCH ACT. LANGUAGE SIMILAR TO THAT EMPLOYED IN SECTIONS 4 (B) AND 5 (B) OF THE CHILD NUTRITION ACT OF 1966 IS CONTAINED IN SECTION 5 OF THE NATIONAL SCHOOL LUNCH ACT (42 U.S.C. 1754). SUCH SECTION PROVIDES THAT FUNDS APPROPRIATED FOR NONFOOD ASSISTANCE UNDER THAT ACT SHALL BE APPORTIONED AMONG THE STATES ON THE BASIS OF THE FACTORS AND IN ACCORDANCE WITH THE STANDARDS SET FORTH IN SECTION 4 OF THAT ACT.

UNDER THAT AUTHORITY, UNUSED SECTION 5 FUNDS HAVE BEEN FURTHER APPORTIONED AS AUTHORIZED BY SECTION 4. SUCH PRACTICE WAS RECOGNIZED IN OUR DECISION OF NOVEMBER 14, 1946, B-60576, AND, TO OUR KNOWLEDGE, THE PROPRIETY OF SUCH ACTION HAS NOT BEEN QUESTIONED.

IT SHOULD BE NOTED HOWEVER THAT THE APPORTIONMENT FORMULA CONTAINED IN THE NATIONAL SCHOOL LUNCH ACT ORDINARILY BECOMES APPLICABLE TO THE SCHOOL BREAKFAST PROGRAM ONLY WHEN THE APPROPRIATION FOR ANY FISCAL YEAR EXCEEDS $2,645,000. SINCE ONLY $2,000,000 WERE PROVIDED IN THE SUPPLEMENTAL APPROPRIATION ACT, 1967, PUBLIC LAW 89-697, 80 STAT. 1057, FOR SUCH PROGRAM FOR THE FISCAL YEAR 1967, ANY SUCH UNUSED FUNDS WOULD NOT BE AVAILABLE FOR FURTHER APPORTIONMENT UNDER SECTION 4 OF THE NATIONAL SCHOOL LUNCH ACT UNTIL THE REMAINING STATES HAVE BEEN GIVEN AN OPPORTUNITY TO SHARE IN SUCH UNUSED FUNDS UP TO THE SUM THEY WOULD HAVE BEEN ENTITLED TO RECEIVE HAD THE FULL AMOUNT OF $2,645,000 BEEN PROVIDED.