B-224828, OCT 1, 1986

B-224828: Oct 1, 1986

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UNLESS THERE IS A CLEAR INDICATION IN THE STATUTORY LANGUAGE OR LEGISLATIVE HISTORY THAT THE INTENT OF THE PROVISION IS TO APPROPRIATE EXPIRED BALANCES. AUTHORITY TO OBLIGATE UNOBLIGATED BALANCES OF APPROPRIATIONS THAT HAVE EXPIRED CONSTITUTES NEW BUDGET AUTHORITY OF THE YEAR FOR WHICH THE FUNDS ARE MADE AVAILABLE. 1986) WOULD BE EFFECTIVE TO MAKE AVAILABLE IN FISCAL YEAR 1987 FUNDS THAT WOULD OTHERWISE HAVE EXPIRED AT THE END OF FISCAL YEAR 1986. IF THE BILL IS ENACTED AS LAW (THROUGH INCLUSION IN A CONTINUING APPROPRIATIONS RESOLUTION) AFTER THE BEGINNING OF FISCAL YEAR 1987. WE WOULD CONSIDER THE STATUTORY LANGUAGE IN QUESTION TO MAKE FUNDS WHICH WOULD HAVE OTHERWISE EXPIRED IN FISCAL YEAR 1986 AVAILABLE FOR OBLIGATION IN FISCAL YEAR 1987.

B-224828, OCT 1, 1986

APPROPRIATIONS/FINANCIAL MANAGEMENT - BUDGET PROCESS - FUNDS TRANSFER - UNOBLIGATED BALANCES - AUTHORITY DIGEST: 1. PROPOSED LANGUAGE IN THE MILITARY CONSTRUCTION APPROPRIATION ACT, 1987, WOULD PERMIT THE TRANSFER OF UNOBLIGATED BALANCES OF SEVERAL FISCAL YEAR 1986 APPROPRIATIONS ACTS TO BE USED FOR ECONOMIC ASSISTANCE FOR CENTRAL AMERICAN DEMOCRACIES IN FISCAL YEAR 1987. ORDINARILY SUCH LANGUAGE WOULD NOT BE CONSIDERED AS PERMITTING THE TRANSFER OF EXPIRED UNOBLIGATED AMOUNTS, UNLESS THERE IS A CLEAR INDICATION IN THE STATUTORY LANGUAGE OR LEGISLATIVE HISTORY THAT THE INTENT OF THE PROVISION IS TO APPROPRIATE EXPIRED BALANCES. THE LEGISLATIVE HISTORY OF THE MILITARY CONSTRUCTION APPROPRIATION ACT, 1987, SUPPORTS THE VIEW THAT THE TRANSFER AUTHORITY APPLIES TO EXPIRED BALANCES. APPROPRIATIONS/FINANCIAL MANAGEMENT - BUDGET PROCESS - FUNDS TRANSFER - UNOBLIGATED BALANCES - AUTHORITY 2. AUTHORITY TO OBLIGATE UNOBLIGATED BALANCES OF APPROPRIATIONS THAT HAVE EXPIRED CONSTITUTES NEW BUDGET AUTHORITY OF THE YEAR FOR WHICH THE FUNDS ARE MADE AVAILABLE.

THE HONORABLE ROBERT C. BYRD:

UNITED STATES SENATE

YESTERDAY MR. RICHARD D'AMATO OF YOUR STAFF REQUESTED OUR VIEWS AS TO WHETHER SECTION 205 OF THE MILITARY CONSTRUCTION APPROPRIATIONS ACT, 1987, H.R. 5052 (AS PASSED BY THE SENATE ON AUGUST 13, 1986) WOULD BE EFFECTIVE TO MAKE AVAILABLE IN FISCAL YEAR 1987 FUNDS THAT WOULD OTHERWISE HAVE EXPIRED AT THE END OF FISCAL YEAR 1986, IF THE BILL IS ENACTED AS LAW (THROUGH INCLUSION IN A CONTINUING APPROPRIATIONS RESOLUTION) AFTER THE BEGINNING OF FISCAL YEAR 1987. AS DISCUSSED BELOW, WE WOULD CONSIDER THE STATUTORY LANGUAGE IN QUESTION TO MAKE FUNDS WHICH WOULD HAVE OTHERWISE EXPIRED IN FISCAL YEAR 1986 AVAILABLE FOR OBLIGATION IN FISCAL YEAR 1987.

SECTION 205 OF H.R. 5052 PROVIDES IN PERTINENT PART AS FOLLOWS:

"ASSISTANCE FOR THE CENTRAL AMERICAN DEMOCRACIES

"SEC. 205. (A) THERE ARE HEREBY TRANSFERRED TO THE PRESIDENT FOR ASSISTANCE TO THE CENTRAL AMERICAN DEMOCRACIES (COSTA RICA, EL SALVADOR, GUATEMALA, AND HONDURAS) IN ACCORDANCE WITH THE PROVISIONS OF CHAPTER 4 OF PART II OF THE FOREIGN ASSISTANCE ACT OF 1961 (RELATING TO ECONOMIC SUPPORT FUNDS (ESF)), $300,000,000 OF UNOBLIGATED FUNDS FROM THE ACCOUNTS SPECIFIED IN SUBSECTION (B). AMOUNTS TRANSFERRED UNDER THIS SECTION SHALL BE ADMINISTERED IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF CHAPTER 6 OF PART I OF THE FOREIGN ASSISTANCE ACT OF 1961 (RELATING TO THE CENTRAL AMERICAN DEMOCRACY PEACE AND DEVELOPMENT INITIATIVE). NOTWITHSTANDING ANY OTHER PROVISION OF LAW, FUNDS MADE AVAILABLE BY THIS SECTION--

"(1) SHALL BE IN ADDITION TO AMOUNTS PREVIOUSLY APPROPRIATED FOR THE FISCAL YEAR 1986 AND ALLOCATED FOR ASSISTANCE TO CENTRAL AMERICAN COUNTRIES, AND

"(2) SHALL REMAIN AVAILABLE FOR OBLIGATION UNTIL SEPTEMBER 30, 1987, EXCEPT THAT NOT LESS THAN $100,000,000 SHALL BE OBLIGATED ON OR BEFORE SEPTEMBER 30, 1986.

"(B) AMOUNTS MADE AVAILABLE BY THIS SECTION SHALL BE TRANSFERRED FROM SUCH ACCOUNTS AS THE PRESIDENT MAY DESIGNATE FOR WHICH APPROPRIATIONS WERE MADE BY TITLE II OF THE FOREIGN ASSISTANCE AND RELATED PROGRAMS APPROPRIATIONS ACT, 1986, TITLE IV OF THE AGRICULTURE, RURAL DEVELOPMENT AND RELATED AGENCIES APPROPRIATIONS ACT, 1986 (PUBLIC LAW 480 FUNDING), (AS CONTAINED IN PUBLIC LAW 99-190), AND TITLE II OF THE URGENT SUPPLEMENTAL APPROPRIATIONS ACT, 1985 (PUBLIC LAW 99-10)."

THE PROVISION IS IDENTICAL TO A SIMILAR PROVISION IN THE HOUSE PASSED VERSION OF THE SAME BILL, ENACTED AS PART OF A PACKAGE OF FLOOR AMENDMENTS RELATING TO CENTRAL AMERICA (INCLUDING AID TO THE NICARAGUAN DEMOCRATIC RESISTANCE). SEE 132 CONG. REC. H4253 (DAILY ED. JUNE 25, 1986).

RELATED TO THE PROVISION QUOTED ABOVE IS SECTION 301 OF THE SAME BILL, WHICH WOULD INCREASE FUNDING UNDER TITLE II OF THE URGENT SUPPLEMENTAL APPROPRIATIONS ACT, 1985 (UNDER THE CATEGORY "EMERGENCY RESERVE FOR AFRICAN FAMINE RELIEF") BY $300,000,000, AND MAKE THOSE ADDITIONAL FUNDS AVAILABLE FOR OBLIGATION UNTIL SEPTEMBER 30, 1987. BECAUSE TITLE II OF THE URGENT SUPPLEMENTAL APPROPRIATIONS ACT, 1985, IS ONE OF THE SOURCES FOR TRANSFER UNDER SECTION 205, AMOUNTS MADE AVAILABLE IN SECTION 301 WOULD ALSO BE AVAILABLE FOR TRANSFER TO ESF.

THE COMMITTEE EXPLANATION OF THESE TWO PROVISIONS IS AS FOLLOWS:

"THE COMMITTEE HAS RECOMMENDED AN APPROPRIATION IN THE AMOUNT OF $300,000,000, AS REQUESTED BY THE PRESIDENT IN HIS JUNE 24, 1986, SPEECH, FOR ECONOMIC AID TO THE CENTRAL AMERICAN DEMOCRACIES ***. THESE FUNDS WILL BE USED TO CONTINUE THE EFFORTS OF THE NATIONAL BIPARTISAN COMMISSION ON CENTRAL AMERICA. THAT COMMISSION REPORTED TO THE PRESIDENT IN JANUARY 1984 THAT THE FUNDAMENTAL INTERESTS OF THE UNITED STATES REQUIRED A NATIONAL COMMITMENT TO HUMAN DEVELOPMENT AND DEMOCRACY IN CENTRAL AMERICA.

"THE HOUSE AMENDMENT HAD PROPOSED USING UNOBLIGATED FISCAL YEAR 1986 FUNDS FROM SEVERAL ACCOUNTS, INCLUDING THE EMERGENCY RESERVE FOR AFRICAN FAMINE RELIEF AND THE PUBLIC LAW 480 OVERSEAS FOOD AID PROGRAM, AS SOURCES OF FUNDING FOR THE CENTRAL AMERICAN ECONOMIC ASSISTANCE. IN TITLE III, THE COMMITTEE HAS INCREASED THE AMOUNT AVAILABLE IN THE FAMINE RELIEF ACCOUNT BY $300,000,000 IN ORDER TO LEAVE THE BALANCE OF THESE AND OTHER PUBLIC LAW 480 MONEYS AVAILABLE FOR POSSIBLE FUTURE OBLIGATION IN THE OVERSEAS FOOD AID PROGRAMS." S.REP. NO. 368, 99TH CONG., 2D. SESS. 54-55 (1986).

FROM OUR DISCUSSIONS WITH YOUR STAFF, WE UNDERSTAND THAT ENACTMENT OF H.R. 5052, THROUGH INCORPORATION IN A CONTINUING APPROPRIATIONS RESOLUTION, WILL NOT OCCUR UNTIL SOMETIME AFTER THE END OF FISCAL YEAR 1986. YOUR STAFF HAS ALSO INDICATED THAT MOST OF THE FUNDS IN THE SOURCE APPROPRIATIONS CITED IN SECTION 205(B) ARE UNAVAILABLE BEYOND THE END OF FISCAL YEAR 1986. THE QUESTION PRESENTED TO US, THEREFORE, IS WHETHER SECTION 205 OF THE BILL WILL BE EFFECTIVE TO APPROPRIATE $300,000,000 IN UNOBLIGATED FUNDS IN THE SOURCE ACCOUNTS THAT WOULD OTHERWISE HAVE EXPIRED AT THE END OF FISCAL YEAR 1986.

AS A PRELIMINARY MATTER, IT IS OUR VIEW THAT SECTION 301 OF THE BILL CONSTITUTES A NEW APPROPRIATION OF $300,000,000 FOR AFRICAN FAMINE RELIEF. BY INCREASING AMOUNTS PROVIDED UNDER A PREVIOUS APPROPRIATION AND BY EXTENDING THE PERIOD OF AVAILABILITY OF THOSE FUNDS, SECTION 301, IN EFFECT, PROVIDES NEW FISCAL YEAR 1987 BUDGET AUTHORITY FOR THE PROGRAM IN AN AMOUNT EQUAL TO THE INCREASE IN THE ORIGINAL APPROPRIATION. THESE AMOUNTS ARE AVAILABLE IN FISCAL YEAR 1987 EITHER FOR AFRICAN FAMINE RELIEF OR FOR TRANSFER TO ESF UNDER SECTION 205.

THUS, THE PRINCIPAL QUESTION REMAINING IS WHETHER-- IN ADDITION TO AMOUNTS MADE AVAILABLE UNDER SECTION 301-- UNOBLIGATED BUT EXPIRED FUNDS IN THE SOURCE APPROPRIATIONS CITED IN SECTION 205(B) ARE AVAILABLE FOR TRANSFER UNDER THE TERMS OF THAT SECTION. UNDER ORDINARY CIRCUMSTANCES, WE WOULD CONSIDER THE AUTHORITY TO TRANSFER UNOBLIGATED BALANCES TO APPLY ONLY TO UNOBLIGATED BALANCES AVAILABLE FOR CURRENT OBLIGATION AT THE TIME OF THE ENACTMENT OF THE AUTHORITY IN QUESTION, UNLESS THE STATUTORY LANGUAGE WAS CLEAR THAT THE INTENT WAS TO REAPPROPRIATE EXPIRED BALANCES.

IN THE PRESENT CASE, SECTION 205 DOES NOT STATE SPECIFICALLY THAT THE INTENT OF THE PROVISION IS TO REAPPROPRIATE EXPIRED UNOBLIGATED BALANCES. NONETHELESS, IT SEEMS CLEAR FROM THE CIRCUMSTANCES OF ITS CREATION THAT SECTION 205 WAS INTENDED TO APPLY TO EXPIRING FISCAL YEAR 1986 BUDGET AUTHORITY: NOT ONLY WAS THE PROVISION ORIGINALLY EXPECTED TO BE ENACTED IN FISCAL YEAR 1986, BUT THE SOURCES OF THE FUNDS FOR TRANSFER ARE ALL FISCAL YEAR 1986 (OR FISCAL YEAR 1985 SUPPLEMENTAL) APPROPRIATIONS ACTS. CONSEQUENTLY, WE WOULD CONSIDER SECTION 205 TO AUTHORIZE THE TRANSFER OF EXPIRED UNOBLIGATED BALANCES OF THE SOURCE APPROPRIATIONS (IN ADDITION TO ANY UNEXPIRED UNOBLIGATED FUNDS).

ONE FURTHER QUESTION RAISED WITH REGARD TO SECTION 205 IS THE EFFECT OF CLAUSE 2 OF SUBSECTION (A) OF THE PROVISION. AS SET OUT ABOVE, THAT CLAUSE STATES THAT FUNDS MADE AVAILABLE UNDER THE PROVISION ARE TO REMAIN AVAILABLE UNTIL SEPTEMBER 30, 1987, EXCEPT THAT NOT LESS THAT $100,000,000 OF THE $300,000,000 MADE AVAILABLE MUST BE OBLIGATED PRIOR TO THE END OF FISCAL YEAR 1986. IT WOULD BE REASONABLE, IN OUR VIEW, TO INTERPRET SECTION 205(A)(2) AS PRESCRIPTIVE LANGUAGE FOR THOSE CARRYING OUT THE PROGRAM, RATHER THAN AS LANGUAGE AFFECTING THE PERIOD OF AVAILABILITY OF THE FUNDS. UNDER THIS VIEW, THE ADMINISTRATION'S FAILURE TO COMPLY WITH THE OBLIGATION REQUIREMENT DUE TO THE INTERVENING CLOSE OF THE FISCAL YEAR WOULD NOT BE CONSIDERED TO AFFECT THE AUTHORITY TO OBLIGATE SUCH FUNDS IN FISCAL YEAR 1987. ALTERNATIVELY, IT IS ARGUABLE THAT SECTION 205(A)(2) HAS THE EFFECT OF LIMITING THE AVAILABILITY OF FUNDS FOR TRANSFER IN FISCAL YEAR 1987 TO $200,000,000. IN LIGHT OF THE AMBIGUITY OF THE PROVISION, WE WOULD SUGGEST THE NEED FOR A CLEAR INDICATION OF LEGISLATIVE INTENT, EITHER IN THE STATUTE ITSELF OR IN ANY ACCOMPANYING CONFERENCE REPORT.

FINALLY, WE HAVE BEEN ASKED TO PROVIDE OUR VIEWS AS TO THE PROPER METHOD OF BUDGETARY "SCORING" TO APPLY TO SECTION 205 AND 301. WE HAVE PREVIOUSLY TAKEN THE VIEW THAT NEW STATUTORY AUTHORITY TO OBLIGATE UNOBLIGATED MONEYS THAT HAVE PREVIOUSLY EXPIRED CONSTITUTES NEW BUDGET AUTHORITY. SEE B-201110-O.M., DECEMBER 30, 1980. AT THE SAME TIME, IT IS ALSO OUR VIEW THAT THE SCORING OF BUDGET AUTHORITY FOR PURPOSES OF THE CONGRESSIONAL BUDGET ACT (AND FOR PURPOSES OF THE INTERNAL RULES OF EACH HOUSE OF THE CONGRESS) FALLS WITHIN THE PURVIEW OF THE COMMITTEES OF THE CONGRESS WITH JURISDICTION OVER SUCH MATTERS (OR, ULTIMATELY, OF THE CONGRESS ITSELF). CONSEQUENTLY, WE WOULD DEFER TO THE INTERPRETATIONS OF BUDGETARY CONVENTIONS MADE BY THOSE OTHER BODIES.

WE HOPE THAT THE FOREGOING IS OF ASSISTANCE TO YOU.