B-180517, MAR 22, 1974, 53 COMP GEN 695

B-180517: Mar 22, 1974

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THE LESSER FIGURE IS CONTROLLING. WAS INTENDED TO CONSTITUTE BOTH THE MAXIMUM AND THE MINIMUM AMOUNT AVAILABLE FOR UNICEF. 1974: THIS DECISION TO THE SECRETARY OF STATE IS IN RESPONSE TO THE REQUEST OF THE GENERAL COUNSEL OF THE AGENCY FOR INTERNATIONAL DEVELOPMENT (AID). THIS PROVISION IS TO BE CONTRASTED WITH THE PERTINENT PROVISION IN TITLE I OF THE FOREIGN OPERATIONS AND RELATED PROGRAMS APPROPRIATION ACT. AS IS APPARENT. THESE TWO PROVISIONS ARE INCONSISTENT IN THAT THE ENABLING ACT EARMARKS $18. THE GENERAL COUNSEL POINTED OUT THAT IT IS POSSIBLE TO GIVE FULL EFFECT TO EACH OF THESE PROVISIONS OF LAW BY FUNDING UNICEF AT THE $18. WE BELIEVE IT IS POSSIBLE TO GIVE FULL EFFECT TO EACH BY CONCLUDING THAT BECAUSE THE $18 MILLION AUTHORIZATION FIGURE ENCOMPASSES THE APPROPRIATION FIGURE OF $15 MILLION.

B-180517, MAR 22, 1974, 53 COMP GEN 695

APPROPRIATIONS - UNITED NATIONS CHILDREN'S FUND (UNICEF) - AUTHORIZATION V. APPROPRIATION DIFFERENCES WHERE THE FOREIGN ASSISTANCE ACT OF 1973 EARMARKED $18 MILLION FOR UNICEF WHILE THE APPROPRIATION ACT EARMARKED ONLY $15 MILLION, THE LESSER FIGURE IS CONTROLLING, SINCE FROM THE LEGISLATIVE HISTORIES IT APPEARS THAT IN AUTHORIZING FUNDING AT THE HIGHER LEVEL CONGRESS DID NOT INTEND TO REDUCE THE FUNDING OF OTHER INTERNATIONAL ORGANIZATIONS AND THAT THE LESSER AMOUNT IN THE APPROPRIATION ACT, REPRESENTING THE LATEST EXPRESSION OF CONGRESS, WAS INTENDED TO CONSTITUTE BOTH THE MAXIMUM AND THE MINIMUM AMOUNT AVAILABLE FOR UNICEF.

IN THE MATTER OF EARMARKING OF FUNDS FOR THE UNITED NATIONS CHILDREN'S FUND, MARCH 22, 1974:

THIS DECISION TO THE SECRETARY OF STATE IS IN RESPONSE TO THE REQUEST OF THE GENERAL COUNSEL OF THE AGENCY FOR INTERNATIONAL DEVELOPMENT (AID), DEPARTMENT OF STATE. HE REQUESTED OUR DECISION ON AN ISSUE INVOLVING STATUTORY CONSTRUCTION ARISING FROM AN APPARENT CONFLICT BETWEEN A PROVISION OF SECTION 302(D) OF THE FOREIGN ASSISTANCE ACT OF 1961, 22 U.S.C. 2223(D), AS AMENDED BY SECTION 9(4) OF THE FOREIGN ASSISTANCE ACT OF 1973, PUBLIC LAW 93-189, APPROVED DECEMBER 13, 1973, 87 STAT. 719, AND A PROVISION CONTAINED IN TITLE I OF THE FOREIGN OPERATIONS AND RELATED PROGRAMS APPROPRIATION ACT, 1974, PUBLIC LAW 93 240, APPROVED JANUARY 2, 1974, 87 STAT. 1050, WITH REGARD TO THE EARMARKING OF FUNDS FOR THE UNITED NATIONS CHILDREN'S FUND (UNICEF). SECTION 302(D) OF THE FOREIGN ASSISTANCE ACT OF 1961 AS AMENDED BY PUBLIC LAW 93-189 READS AS FOLLOWS:

(D) OF THE FUNDS MADE AVAILABLE TO CARRY OUT THIS CHAPTER FOR EACH OF FISCAL YEARS 1974 AND 1975, $18,000,000 SHALL BE AVAILABLE IN EACH SUCH FISCAL YEAR ONLY FOR CONTRIBUTIONS TO THE UNITED NATIONS CHILDREN'S FUND.

THIS PROVISION IS TO BE CONTRASTED WITH THE PERTINENT PROVISION IN TITLE I OF THE FOREIGN OPERATIONS AND RELATED PROGRAMS APPROPRIATION ACT, 1974, WHICH READS:

INTERNATIONAL ORGANIZATIONS AND PROGRAMS: FOR NECESSARY EXPENSES TO CARRY OUT THE PROVISIONS OF SECTION 301, $125,000,000, OF WHICH $15,000,000 SHALL BE AVAILABLE ONLY FOR THE UNITED NATIONS CHILDREN'S FUND ***.

AS IS APPARENT, THESE TWO PROVISIONS ARE INCONSISTENT IN THAT THE ENABLING ACT EARMARKS $18,000,000 FOR UNICEF WHILE THE APPROPRIATION ACT ONLY EARMARKS $15,000,000 FOR UNICEF.

THE GENERAL COUNSEL POINTED OUT THAT IT IS POSSIBLE TO GIVE FULL EFFECT TO EACH OF THESE PROVISIONS OF LAW BY FUNDING UNICEF AT THE $18,000,000 FIGURE. HE STATED:

WHILE THE TWO PROVISIONS OF LAW HERE UNDER CONSIDERATION APPEAR INCONSISTENT, WE BELIEVE IT IS POSSIBLE TO GIVE FULL EFFECT TO EACH BY CONCLUDING THAT BECAUSE THE $18 MILLION AUTHORIZATION FIGURE ENCOMPASSES THE APPROPRIATION FIGURE OF $15 MILLION, THE $18 MILLION EARMARKING WOULD PREVAIL. BOTH SECTIONS PROVIDE THAT THE RESPECTIVE EARMARKING FIGURES REPRESENT A FLOOR RATHER THAN A CEILING ON FUNDING FOR UNICEF. IT IS THEREFORE POSSIBLE TO COMPLY WITH THE REQUIREMENTS OF THE APPROPRIATIONS ACT PROVISION BY FUNDING AT THE AUTHORIZATION ACT LEVEL OF $18 MILLION. TO ADOPT THE HIGHER FIGURE WOULD BE TO GIVE FULL EFFECT TO THE LANGUAGE OF BOTH STATUTES IN COMPLIANCE WITH THE COMMONLY APPLIED RULE OF STATUTORY CONSTRUCTION.

THE GENERAL COUNSEL RECOGNIZES, HOWEVER, THAT TO GIVE SUCH EFFECT TO THE PROVISIONS IN QUESTION WOULD BE TO IGNORE THE INTENT OF THE HOUSE APPROPRIATIONS COMMITTEE IN ITS INSERTION OF THE LOWER FIGURE IN THE APPROPRIATION ACT.

CONCERNING LANGUAGE SIMILAR TO THAT CONTAINED IN THE APPROPRIATION ACT HERE IN QUESTION WE HAVE HELD THAT -

IT IS A GENERAL RULE OF STATUTORY CONSTRUCTION THAT AN APPROPRIATION FOR A SPECIFIC OBJECT IS AVAILABLE FOR THAT OBJECT TO THE EXCLUSION OF A MORE GENERAL APPROPRIATION AND THAT THE EXHAUSTION OF A SPECIFIC APPROPRIATION DOES NOT AUTHORIZE CHARGING THE EXCESS PAYMENT TO A MORE GENERAL APPROPRIATION. HOWEVER, WHETHER LANGUAGE MAKING PART OF A LARGER APPROPRIATION "AVAILABLE ONLY" FOR A PARTICULAR PURPOSE CONSTITUTES A MAXIMUM LIMITATION ON THE AMOUNT WHICH PROPERLY MAY BE USED FOR THE PARTICULAR PURPOSE OR WHETHER IT MERELY EARMARKS THE PART OF THE APPROPRIATION SO AS TO ASSURE THE AVAILABILITY OF THE SMALLER SUM FOR THE PARTICULAR PURPOSE WOULD DEPEND UPON THE INTENT OF THE CONGRESS IN USING THE LANGUAGE. (SEE B-142190, MARCH 23, 1960.)

THE LEGISLATIVE HISTORY OF PUBLIC LAW 93-240 CLEARLY SHOWS THAT CONGRESS, BEING FULLY COGNIZANT OF THE $18,000,000 EARMARKING FOR UNICEF IN PUBLIC LAW 93-189, INTENDED TO REDUCE THIS EARMARKING TO $15,000,000. THE PROVISION CONTAINING THIS REDUCTION IS REFERRED TO IN THE CONFERENCE REPORT ON PUBLIC LAW 93-240, WHICH STATES IN PERTINENT PART:

AMENDMENT NO. 14: EARMARKS $15,000,000 FOR THE UNITED NATIONS CHILDREN'S FUND AS PROPOSED BY THE HOUSE INSTEAD OF $18,000,000 AS PROPOSED BY THE SENATE. (SEE PAGE 6 OF HOUSE REPORT NO. 93-742.)

THE COMMITTEE ON APPROPRIATIONS OF THE HOUSE OF REPRESENTATIVES, WHICH ORIGINATED THIS PROVISION IN PUBLIC LAW 93-240, CLEARLY SHOWED ITS INTENT OF REDUCING UNICEF'S EARMARKING WHEN IT STATED IN ITS REPORT ON PUBLIC LAW 93-240 THAT:

WHILE THE COMMITTEE REALIZES THE AUTHORIZING LEGISLATION EARMARKED $18,000,000 FOR THE UNITED NATIONS CHILDREN'S FUND, IT FELT THE BUDGET REQUEST FOR UNICEF OF $15,000,000 WOULD PROVIDE SUFFICIENT FUNDS FOR THIS ORGANIZATION. ACCORDINGLY, THE COMMITTEE RECOMMENDS $15,000,000 FOR UNICEF IN THE ACCOMPANYING BILL. (SEE PAGE 26 OF HOUSE REPORT NO. 93- 694.)

IF UNICEF WERE TO BE FUNDED AT THE $18,000,000 AUTHORIZATION FIGURE THE FUNDING AVAILABLE FOR OTHER INTERNATIONAL ORGANIZATIONS AND PROGRAMS WOULD BE REDUCED. HOWEVER, IT IS CLEAR THAT CONGRESS DID NOT INTEND TO REDUCE REQUESTED AMOUNTS FOR OTHER INTERNATIONAL ORGANIZATIONS AND PROGRAMS IN ORDER TO FUND UNICEF AT THE $18,000,000 LEVEL AS PROPOSED IN THE ENABLING LEGISLATION RATHER THAN THE $15,000,000 LEVEL REQUESTED BY THE PRESIDENT.

IN THIS CONNECTION THE GENERAL COUNSEL POINTS OUT IN HIS LETTER THAT:

THE PRESIDENT'S REQUEST FOR VOLUNTARY CONTRIBUTIONS TO INTERNATIONAL ORGANIZATIONS AND PROGRAMS WAS $124.8 MILLION OF WHICH $15 MILLION WAS TO BE FOR UNICEF. IN EARMARKING $18 MILLION FOR UNICEF IN THE AUTHORIZING BILL, CONGRESS APPROVED AN ADDITIONAL $3 MILLION TO THE TOTAL AMOUNT REQUESTED BY THE PRESIDENT FOR THE INTERNATIONAL ORGANIZATION AUTHORIZATION IN ORDER TO ALLOW FOR THE HIGHER UNICEF EARMARKING. (HOUSE REPORT NO. 93-388 AT 32.) IT SEEMS CLEAR, FROM THE SENATE FLOOR DEBATE ON AN AMENDMENT INTRODUCED BY SENATOR MCGEE TO INCREASE THE INTERNATIONAL ORGANIZATION AUTHORIZATION, THAT THE CONGRESS DID NOT INTEND TO REDUCE THE AMOUNT REQUESTED FOR OTHER INTERNATIONAL ORGANIZATIONS WHEN IT ADDED THE ADDITIONAL $3 MILLION IN FUNDING FOR UNICEF. (CONG. REC. OCT. 3, 1973, AT S. 18408 (DAILY ED.)).

INASMUCH AS THE APPROPRIATION ACT INVOLVED HERE REPRESENTS THE LATEST EXPRESSION OF THE CONGRESS IN THE MATTER, THE $15 MILLION EARMARKED FOR UNICEF MUST BE CONTROLLING. ACCORDINGLY, SUCH AMOUNT IS AVAILABLE ONLY FOR UNICEF AND IN LIGHT OF THE LEGISLATIVE HISTORIES OF THE TWO RELATED ACTS CONSIDERED HEREIN IT IS OUR VIEW THAT THE $15 MILLION EARMARKED FOR UNICEF IN THE APPROPRIATION ACT IS THE MAXIMUM AMOUNT AVAILABLE FOR SUCH PURPOSE FOR FISCAL YEAR 1974.