B-219061, JUN 28, 1985, 64 COMP.GEN. 649

B-219061, JUN 28, 1985, 64 COMP.GEN. 649

APPROPRIATIONS - CONTINUING RESOLUTIONS - EXPIRATION - UNOBLIGATED BALANCE AVAILABILITY UNOBLIGATED FISCAL YEAR 1984 CARRYOVER FUNDS SHOULD NOT BE DEDUCTED FROM THE SUM APPROPRIATED FOR REFUGEE AND ENTRANT TARGETED ASSISTANCE BY THE FISCAL YEAR 1985 CONTINUING RESOLUTION. THE GENERAL RULE SET FORTH IN 58 COMP.GEN. 530 (1979) ON WHICH THE OFFICE OF REFUGEE RESETTLEMENT (ORR) RELIED IS DISTINGUISHED. THE RESULT IS ALSO SUPPORTED BY STRONG EXPRESSIONS OF CONGRESSIONAL INTENT IN THE LEGISLATIVE HISTORY. APPROPRIATIONS - IMPOUNDING - EXECUTIVE BRANCH'S FAILURE TO EXPEND APPROPRIATED FUNDS ALTHOUGH GENERAL ACCOUNTING OFFICE DIFFERS FROM THE ORR IN ARRIVING AT THE AMOUNT MADE AVAILABLE IN FISCAL YEAR 1985 BY THE CONTINUING RESOLUTION FOR REFUGEE AND ENTRANT TARGETED ASSISTANCE, WE DO NOT CONSIDER ORR TO HAVE VIOLATED THE IMPOUNDMENT CONTROL ACT, 2 U.S.C. 681 ET SEQ. (1982). THIS CASE INVOLVES A GOOD FAITH DISAGREEMENT REGARDING THE TOTAL AMOUNT OF FUNDS AVAILABLE FOR A PARTICULAR PROGRAM. THERE IS NO EVIDENCE THAT ANY AGENCY OFFICIAL DETERMINED THAT THE FUNDS IN QUESTION SHOULD NOT BE SPENT FOR FISCAL POLICY OR OTHER REASONS.

MATTER OF: FUNDING FOR REFUGEE AND ENTRANT TARGETED ASSISTANCE PURSUANT TO THE FISCAL YEAR 1985 CONTINUING RESOLUTION, JUNE 28, 1985:

THIS DECISION IS IN RESPONSE TO A DIRECTION TO THE COMPTROLLER GENERAL INCLUDED IN THE REPORT OF THE HOUSE COMMITTEE ON APPROPRIATIONS ON H.R. 2577, THE SUPPLEMENTAL APPROPRIATIONS BILL, 1985. THE COMMITTEE DIRECTED THIS OFFICE TO DETERMINE THE PROPER INTERPRETATION OF THE FISCAL YEAR 1985 CONTINUING RESOLUTION, PUB.L. NO. 98-473, 98 STAT. 1873, OCTOBER 12, 1984, AS IT RELATES TO FUNDING FOR REFUGEE AND ENTRANT TARGETED ASSISTANCE ADMINISTERED BY THE OFFICE OF REFUGEE RESETTLEMENT (ORR) OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES (HHS). H. REP. NO. 142, 99TH CONG., 1ST SESS. 111 (1985). THIS DECISION ALSO RESPONDS TO A RELATED LETTER, DATED MAY 29, 1985, TO THIS OFFICE FROM FOUR MEMBERS OF THE CONGRESS- REPRESENTATIVES DON EDWARDS, RICHARD H. LEHMAN, HOWARD L. BERMAN, AND CHARLES PASHAYAN, JR. THE MAY 29 LETTER REQUESTS THAT THIS OFFICE REVIEW ORR'S PROPOSED FUNDING LEVEL FOR REFUGEE AND ENTRANT TARGETED ASSISTANCE AND DETERMINES WHETHER THAT FUNDING LEVEL CONSTITUTES AN UNLAWFUL RESCISSION UNDER THE IMPOUNDMENT CONTROL ACT, 2 U.S.C. SEC. 681 ET SEQ. (1982).

BECAUSE OF THE SHORT TIME PERIOD AVAILABLE TO PREPARE A RESPONSE IN THIS CASE, WE DID NOT SOLICIT THE VIEWS OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES. HOWEVER, WE WERE PROVIDED WITH A COPY OF A LETTER, DATED FEBRUARY 27, 1985, FROM PHILLIP N. HAWKES, DIRECTOR OF THE OFFICE OF REFUGEE RESETTLEMENT, TO REPRESENTATIVE DON EDWARDS WHICH WE BELIEVE ADEQUATELY SETS FORTH THE VIEWS OF HHS IN THIS MATTER.

AS SET FORTH BELOW, WE CONCLUDE THAT ORR HAS INCORRECTLY CALCULATED THE TOTAL FUNDS AVAILABLE FOR TARGETED ASSISTANCE IN FISCAL YEAR 1985 BY $39,026,000, A SUM WHICH REPRESENTS AN UNOBLIGATED BALANCE OF APPROPRIATIONS FOR FY 1984. BASED ON CLEAR LEGISLATIVE HISTORY, THE CONGRESS INTENDED THIS SUM TO REMAIN AVAILABLE FOR OBLIGATION IN FY 1985, IN ADDITION TO THE AMOUNTS APPROPRIATED IN THE 1985 CONTINUING RESOLUTION. HOWEVER, WE ALSO CONCLUDE THAT THIS MISCALCULATION DOES NOT CONSTITUTE A VIOLATION OF THE IMPOUNDMENT CONTROL ACT.

BACKGROUND: ORR'S REFUGEE AND ENTRANT TARGETED ASSISTANCE PROGRAM IS AUTHORIZED BY TITLE IV OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C. SEC. 1521 ET SEQ. (1982). IN FISCAL YEAR 1984, REFUGEE AND ENTRANT ASSISTANCE ACTIVITIES, INCLUDING TARGETED ASSISTANCE, WERE FUNDED BY THE "JOINT RESOLUTION MAKING FURTHER CONTINUING APPROPRIATIONS FOR FISCAL YEAR 1984," PUB.L. NO. 98-151, 97 STAT. 964 (1983). THAT CONTINUING RESOLUTION PROVIDED THAT SUCH ACTIVITIES WOULD BE CONTINUED AT THE "CURRENT RATE." DISPUTE DEVELOPED REGARDING THE MEANING OF THE TERM "CURRENT RATE." SEE 64 COMP.GEN. 21, (1984). CONGRESS ULTIMATELY RESOLVED THE MATTER IN THE SECOND SUPPLEMENTAL APPROPRIATIONS ACT, 1984, PUB.L. NO. 98-396, 98 STAT. 1369, 1392, AUGUST 22, 1984, WHICH PROVIDED AS FOLLOWS:

FOR PURPOSES OF SECTION 101(C) OF PUBLIC LAW 98-151, THE CURRENT RATE FOR REFUGEE AND ENTRANT ASSISTANCE ACTIVITIES FOR FISCAL YEAR 1984 IS $541,761,000, OF WHICH NOT LESS THAN $71,700,000 SHALL BE AVAILABLE FOR SOCIAL SERVICES (EXCLUSIVE OF TARGETED ASSISTANCE), AND NOT LESS THAN $77,500,000 SHALL BE AVAILABLE FOR TARGETED ASSISTANCE.

FUNDS AVAILABLE FOR REFUGEE AND ENTRANT TARGETED ASSISTANCE ACTIVITIES UNDER SECTION 101(C) OF PUBLIC LAW 98-151 SHALL REMAIN AVAILABLE THROUGH SEPTEMBER 30, 1985. 98 STAT. 1892.

AT THE END OF FISCAL YEAR 1984, ORR HAD OBLIGATED $38,474,000 OF THE $77,500,000 SPECIFICALLY AVAILABLE FOR TARGETED ASSISTANCE, RESULTING IN AN UNOBLIGATED CARRY-OVER BALANCE FOR FISCAL YEAR 1985 OF $39,026,000. SEE APPENDIX TO THE BUDGET OF THE UNITED STATES GOVERNMENT, FISCAL YEAR 1986, OFFICE OF MANAGEMENT AND BUDGET AT I K36.

FOR FISCAL YEAR 1985, CONGRESS AGAIN RESORTED TO A CONTINUING RESOLUTION TO PROVIDE SPECIFIC FUNDING FOR THE TARGETED ASSISTANCE PROGRAM. PUB.L. NO. 98-473, 98 STAT. 1837, 1963, OCTOBER 12, 1984. THE 1985 CONTINUING RESOLUTION APPROPRIATED IN SECTION 101(K):

(K) SUCH AMOUNTS AS MAY BE NECESSARY FOR CONTINUING THE FOLLOWING ACTIVITIES, NOT OTHERWISE PROVIDED FOR IN THIS JOINT RESOLUTION, WHICH WERE CONDUCTED IN THE FISCAL YEAR 1984, UNDER THE TERMS AND CONDITIONS PROVIDED IN APPLICABLE APPROPRIATION ACTS FOR THE FISCAL YEAR 1984, AT THE CURRENT RATE:

*** REFUGEE AND ENTRANT ASSISTANCE ACTIVITIES UNDER THE PROVISIONS OF TITLE IV OF THE IMMIGRATION AND NATIONALITY ACT, TITLE IV AND PART B OF TITLE III OF THE REFUGEE ACT OF 1980, AND SECTION 501(A) AND (B) OF THE REFUGEE EDUCATION ASSISTANCE ACT OF 1980, 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 H.R. 3729 AS PASSED THE HOUSE OF REPRESENTATIVES: PROVIDED, THAT SUCH FUNDS MAY BE EXPENDED FOR INDIVIDUALS WHO WOULD MEET THE DEFINITION OF "CUBAN AND HAITIAN ENTRANT" UNDER SECTION 501(E) OF THE REFUGEE EDUCATION ASSISTANCE ACT OF 1980, BUT FOR THE APPLICATION OF PARAGRAPH (2)(B) THEREOF; 98 STAT. 1968.

THE TERMS "CURRENT RATE" AND "RATE AUTHORIZED BY" SOME OTHER REFERENCE POINT-- E.G., A HOUSE OR SENATE-PASSED BILL, A CONFERENCE REPORT, THE PRESIDENT'S BUDGET ESTIMATE, ETC.-- HAVE BECOME TERMS OF APPROPRIATIONS ART IN CONTINUING RESOLUTIONS. BOTH TERMS MUST BE TRANSLATED AS A FIXED AMOUNT OF FUNDS, FOR PURPOSES OF COMPARISON, WHEN THE CONTINUING RESOLUTION DIRECTS THE AGENCY TO OPERATE AT THE LOWER OF TWO (OR MORE) SUCH REFERENCE POINTS. SEE B-152554, OCTOBER 9, 1970, PRINTED IN 116 CONG. REC., OCTOBER 12, 1970, AND REFERENCES THEREIN. "CURRENT RATE" EQUALS THE TOTAL DOLLARS MADE AVAILABLE FOR OBLIGATION IN THE PRIOR FISCAL YEAR. 58 COMP.GEN. 530 (1979); B-194063, MAY 4, 1979; B-194362, MAY 1, 1979. THE "RATE AUTHORIZED BY H.R. 3729" IS SIMILARLY A FIXED DOLLAR AMOUNT.

AS PASSED BY THE HOUSE OF REPRESENTATIVES ON NOVEMBER 14, 1983, H.R. 3729 WOULD, IF ENACTED, HAVE AUTHORIZED THE APPROPRIATION OF $50,000,000 FOR THE TARGETED ASSISTANCE PROGRAM. SEE CONG. REC. H9786 (DAILY ED. NOVEMBER 14, 1983). THEREFORE, THE COMPARISON AMOUNTS ARE $77,500,000 (CURRENT RATE) AND $50,000,000 (H.R. 3729).

BOTH ORR AND THE SIGNATORIES TO THE MAY 29 LETTER TO THIS OFFICE AGREE THAT OF THE TWO "RATES" SET FORTH IN SECTION 101(K) OF THE 1985 CONTINUING RESOLUTION-- THE "CURRENT RATE" AND "THE RATE AUTHORIZED BY H.R. 3729"-- THE RATE AUTHORIZED BY H.R. 3729, $50,000,000, IS THE LOWER. HOWEVER, THE INTERESTED PARTIES DISAGREE AS TO WHETHER THAT $50,000,000 FIGURE REPRESENTS THE MAXIMUM LEVEL OF FUNDING FOR THE PROGRAM OR WHETHER THE PROGRAM MAY UTILIZE, IN ADDITION, THE UNOBLIGATED CARRYOVER BALANCE OF $39,026,000 FROM FY 1984. ORR CONTENDS THAT THE TOTAL AMOUNT MADE AVAILABLE FOR THE TARGETED ASSISTANCE PROGRAM IN FISCAL YEAR 1985 PURSUANT TO THE 1985 CONTINUING RESOLUTION IS $50,000,000. ORR REASONS THAT THE $39,026,000 IN UNOBLIGATED FISCAL YEAR 1984 TARGETED ASSISTANCE FUNDS WHICH WERE CARRIED OVER TO FISCAL YEAR 1985 MUST BE DEDUCTED FROM THE $50,000,000 "RATE FOR OPERATIONS SPECIFIED BY CONGRESS" IN ORDER TO COMPLY WITH THE DIRECTIVE THAT THE RATE FOR OPERATIONS SHOULD NOT BE "IN EXCESS" OF THE LOWER OF THE TWO REFERENCES. THEREFORE, ORR CONCLUDES THAT THE AMOUNT OF "NEW FUNDS" APPROPRIATED FOR TARGETED ASSISTANCE BY THE 1985 CONTINUING RESOLUTION IS ONLY $10,974,000. IN SUPPORT OF THIS ANALYSIS, ORR CITES OUR DECISION IN 58 COMP.GEN. 530 (1979) WHICH DEALT WITH A SIMILAR SITUATION UNDER A FISCAL YEAR 1979 CONTINUING RESOLUTION.

REPRESENTATIVES EDWARDS, LEHMAN, BERMAN, AND PASHAYAN, HOWEVER, CONTEND THAT THE TOTAL AMOUNT AVAILABLE FOR THE TARGETED ASSISTANCE PROGRAM IN FISCAL YEAR 1985 PURSUANT TO THE 1985 CONTINUING RESOLUTION IS THE $50,000,000 SPECIFIED IN H.R. 3729, PLUS THE $39,026,000 IN UNOBLIGATED FISCAL YEAR 1984 CARRY-OVER FUNDS, OR A TOTAL OF $89,026,000. THEY CONTEND THAT THE $50,000,000 SPECIFIED IN HR 3729 WAS INTENDED TO BE NEW FUNDS APPROPRIATED FOR FISCAL YEAR 1985 AND THAT ORR IS ACTING ERRONEOUSLY IN DEDUCTING FISCAL YEAR 1984 CARRY-OVER FROM THAT SUM. IN SUPPORT OF THEIR POSITION, THEY CITE THE LEGISLATIVE HISTORY OF THE 1985 CONTINUING RESOLUTION, INCLUDING THE FOLLOWING EXCERPT FROM THE CONFERENCE COMMITTEE REPORT:

IT IS THE INTENT OF THE CONFEREES THAT $50,000,000 WILL BE AVAILABLE FOR THE TARGETED ASSISTANCE PROGRAM IN FISCAL YEAR 1985, AND THAT THE DEPARTMENT WILL EXPEND NEW MONIES TO FULFILL THE 1985 APPROPRIATIONS LEVELS PROVIDED BY THIS BILL. THE CONFEREES *** DIRECT THE DEPARTMENT NOT TO REDUCE ANY STATE OR LOCAL ENTITY'S ALLOTMENT ON THE BASIS OF 1984 FUNDS, CARRIED OVER OR PREVIOUSLY COMMITTED. (H. REP. NO. 1159, 98TH CONG., 2D SESS. 402 (1984)). THE SIGNATORIES TO THE MAY 29 LETTER TO THIS OFFICE CONTEND ACCORDINGLY, THAT ORR'S FUNDING OF TARGETED ASSISTANCE IN FISCAL YEAR 1985 AT $50,000,000 CONSTITUTES AN UNLAWFUL RESCISSION OF $39,026,000 UNDER THE IMPOUNDMENT CONTROL ACT.

ANALYSIS

WE CONCLUDE THAT OUR DECISION IN 58 COMP.GEN. 530 (1979) IS CLEARLY DISTINGUISHABLE FROM THE INSTANT CASE.

THE 1979 CASE CONCERNED THE AVAILABILITY OF FUNDS APPROPRIATED BY THE FISCAL YEAR 1979 CONTINUING RESOLUTION FOR A DEPARTMENT OF LABOR PROGRAM TO 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 BY THE HOUSE OF REPRESENTATIVES." THE LEGISLATIVE LANGUAGE IS, AS ORR POINTS OUT, VERY SIMILAR TO THE LANGUAGE IN THE 1985 CONTINUING RESOLUTION USED TO FUND THE TARGETED ASSISTANCE PROGRAM. HOWEVER, IN THE 1979 CASE, THE "CURRENT RATE" AND NOT THE BILL AUTHORIZATION "RATE" TURNED OUT TO BE THE LOWER DOLLAR FIGURE. WE HELD THAT IF THERE IS A BALANCE OF UNOBLIGATED FUNDS WHICH IS CARRIED OVER INTO THE PRESENT FISCAL YEAR, THAT BALANCE MUST BE DEDUCTED FROM THE "CURRENT RATE" TO DETERMINE THE AMOUNT OF NEW FUNDS ACTUALLY APPROPRIATED BY THE CONTINUING RESOLUTION. THIS IS BECAUSE THE "CURRENT RATE" IS MADE UP OF ALL THE FUNDS WHICH WERE AVAILABLE TO THE AGENCY FOR THE PRIOR FISCAL YEAR, WHETHER OBLIGATED OR EXPENDED OR STILL AVAILABLE FOR OBLIGATION. PUT ANOTHER WAY, THE TERM "CURRENT RATE" ALREADY INCLUDES AN UNOBLIGATED BALANCE, IF ANY. TO HAVE ADDED THE UNOBLIGATED BALANCE TO THE "CURRENT RATE" DOLLARS IN THE 1979 CASE, WOULD HAVE BEEN DUPLICATIVE AND HAVE FRUSTRATED CONGRESSIONAL INTENT THAT THE 1979 PROGRAM BE CARRIED OUT AT A RATE OF OPERATIONS NOT IN EXCESS OF THE "CURRENT RATE."

IN CONTRAST, THE $50 MILLION FOR THE TARGETED ASSISTANCE APPROPRIATION DOES NOT INCLUDE A PRIOR YEAR'S BALANCE. IN FACT, THE LEGISLATIVE HISTORY CLEARLY INDICATES THAT THE CONGRESS WAS WELL AWARE OF THE EXISTENCE OF THE UNOBLIGATED CARRYOVER FUNDS AND WANTED THEM TO REMAIN AVAILABLE FOR THE PROGRAM IN ADDITION TO ITS NEW MONIES. (SEE EXCERPT FROM CONFERENCE COMMITTEE REPORT, CITED ABOVE.) THE CONGRESS TOOK PAINS TO INSTRUCT THE DEPARTMENT TO CALCULATE EACH STATE'S ALLOTMENT FOR TARGETED ASSISTANCE WITHOUT REFERENCE TO "1984 FUNDS CARRIED OVER OR PREVIOUSLY COMMITTED." H. REP. NO. 1159, SUPRA. WE THEREFORE CONCLUDE THAT THE RULE WITH RESPECT TO DEDUCTION OF UNOBLIGATED BALANCES IN 58 COMP.GEN. 530 IS NOT APPLICABLE WHERE THE LOWER OF TWO REFERENCED RATES IS NOT THE CURRENT RATE.

FINALLY, ALTHOUGH WE DO NOT AGREE WITH ORR'S CALCULATIONS OF THE AMOUNT OF FUNDS MADE AVAILABLE FOR THE TARGETED ASSISTANCE PROGRAM FOR FISCAL YEAR 1985, WE DO NOT THINK THAT ORR VIOLATED THE IMPOUNDMENT CONTROL ACT, 2 U.S.C. SEC. 681 ET SEQ. (1982). THIS CASE INVOLVES A GOOD FAITH DISAGREEMENT REGARDING THE TOTAL AMOUNT OF FUNDS AVAILABLE FOR A PARTICULAR PROGRAM. THERE IS NO EVIDENCE THAT ANY AGENCY OFFICIAL DETERMINED THAT THE FUNDS IN QUESTION SHOULD NOT BE SPENT BECAUSE THEY WERE NOT NEEDED, OR FOR FISCAL POLICY OR OTHER REASONS. SEE B-200769, NOVEMBER 7, 1980. ACCORDINGLY, WE CONCLUDE THAT IN THE INSTANT CASE, THE FAILURE OF ORR TO MAKE THE DISPUTED $39,026,000 AVAILABLE FOR OBLIGATION DOES NOT CONSTITUTE AN ILLEGAL RESCISSION WITHIN THE CONTEMPLATION OF THE IMPOUNDMENT CONTROL ACT.