B-152554, DEC. 6, 1963

B-152554, DEC. 6, 1963

TO ADMINISTRATOR, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION:

THERE HAS BEEN BEFORE OUR OFFICE A CONGRESSIONAL INQUIRY CONCERNING THE LEGALITY OF THE FORMULA UNDER WHICH THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION IS OPERATING UNDER THE JOINT RESOLUTION MAKING CONTINUING APPROPRIATIONS FOR THE FISCAL YEAR 1964, APPROVED JUNE 29, 1963, PUB.L. 88 -55, 77 STAT. 74, AS AMENDED, AND WHETHER THE EXPENDITURES HAVE BEEN WITHIN THE LIMITATIONS OF THE JOINT RESOLUTION. A MEETING WAS HELD BETWEEN REPRESENTATIVES OF OUR RESPECTIVE OFFICES CONCERNING THIS MATTER AND THE PURPOSE OF THIS LETTER IS TO INFORM YOU OF THE CONCLUSIONS WE HAVE REACHED.

THE FORMULA, AS EXPLAINED TO THE INTERESTED CONGRESSIONAL COMMITTEES BY YOUR LETTER OF JULY 3, 1963, PROVIDES THAT PROJECTS OR ACTIVITIES CONDUCTED DURING FISCAL YEAR 1963 ARE TO BE CONTINUED UNDER THE SCOPE AND SCHEDULES APPROVED PRIOR TO THE END OF THE FISCAL YEAR 1963. NO APPROVAL IS TO BE GRANTED FOR THE INITIATION OF NEW PROJECTS OR ACTIVITIES. CONCERNING FISCAL YEAR 1964, THE ADDITIONAL INCREMENT OF EFFORT ON CONTINUING PROJECTS WHICH IS EXPECTED TO BE FUNDED FROM 1964 APPROPRIATIONS WILL PROCEED IN ACCORDANCE WITH THE OVER-ALL PROGRAM PLAN REFLECTED IN THE FISCAL YEAR 1964 BUDGET ESTIMATES EXCEPT WHERE THERE ARE INDICATIONS THAT PLANNED PROGRAMS WILL BE MODIFIED BY CONGRESSIONAL ACTION.

THE BUDGET ESTIMATES FOR FISCAL YEAR 1964 REFLECT THE EXPANDING PROGRAM NOW IN PROGRESS AT NASA AS SUCH ESTIMATES EXCEED THE APPROPRIATIONS AVAILABLE TO NASA FOR THE FISCAL YEAR 1963.

SUBSECTION 101 (B) OF THE JOINT RESOLUTION PROVIDES IN PART AS FOLLOWS:

"/B) SUCH AMOUNTS AS MAY BE NECESSARY FOR CONTINUING PROJECTS OR ACTIVITIES WHICH WERE CONDUCTED IN THE FISCAL YEAR 1963 AND ARE LISTED IN THIS SUBSECTION AT A RATE FOR OPERATIONS NOT IN EXCESS OF THE CURRENT RATE OR THE RATE PROVIDED FOR IN THE BUDGET ESTIMATE, WHICHEVER IS LOWER, AND UNDER THE MORE RESTRICTIVE AUTHORITY:

"AGENCIES FOR WHICH PROVISION WAS MADE IN THE INDEPENDENT OFFICES APPROPRIATION ACT, 1963.'

"RATE" HAS BEEN DEFINED AS A PRICE OR AMOUNT STATED OR FIXED ON ANYTHING WITH RELATION TO A STANDARD, A FIXED RATIO, A SETTLED PROPORTION. CITY OF CHICAGO V. ILLINOIS COMMERCE COMMISSION, 150 N.E. 2D 776. THE LANGUAGE "CURRENT RATE" AS USED IN SUBSECTION 101 (B) MIGHT AT FIRST GLANCE BE VIEWED TO MEAN THE RATE OF OPERATIONS FOR THE CORRESPONDING MONTH OF FISCAL YEAR 1963, OR AS 1/12 OF THE APPROPRIATIONS FOR 1963, OR THE MONTH OF JUNE 1963, OR SOME OTHER PORTION OF THE APPROPRIATIONS FOR 1963. THE ONLY STANDARD, FIXED RATIO, OR SETTLED PROPORTION PROVIDED FOR THEREIN WITH WHICH THE "CURRENT RATE" IS TO BE RELATED IS "THE RATE PROVIDED FOR IN THE BUDGET ESTIMATE.' SINCE THE BUDGET ESTIMATE IS FOR A FULL FISCAL YEAR IT FOLLOWS THAT THE "CURRENT RATE" MAY HAVE BEEN INTENDED TO MEAN THE RATE OF OPERATIONS WHICH WAS CARRIED ON WITHIN THE APPROPRIATIONS FOR THE ENTIRE FISCAL YEAR 1963. THERE IS SOME LEGISLATIVE HISTORY OF THIS INSTANT JOINT RESOLUTION TO SUPPORT THIS VIEW. THEREFORE WHILE OBLIGATIONS INCURRED BY AN AGENCY DURING ANY PARTICULAR MONTH MAY EXCEED THE JUNE 1963 OBLIGATIONS, 1/12 OF OBLIGATIONS INCURRED FOR FISCAL YEAR 1963, OR OBLIGATIONS INCURRED DURING SOME OTHER PORTION OF FISCAL YEAR 1963, IT DOES NOT NECESSARILY FOLLOW THAT THERE HAS BEEN A VIOLATION OF SUBSECTION 101 (B). VARIATIONS IN THE MONTHLY OR QUARTERLY OBLIGATIONS ARE RECOGNIZED IN THE APPORTIONMENT PROCEDURES AUTHORIZED BY THE ANTIDEFICIENCY ACT, SECTION 3679, REVISED STATUTES, AS AMENDED, 31 U.S.C. 665. ANY MATHEMATICAL FORMULA NOT RECOGNIZING SUCH VARIATIONS IN THE MANY COMPLEX GOVERNMENTAL PROGRAMS WOULD NOT SEEM PRACTICABLE. WHILE THE LEGISLATIVE INTENT OF THE TERM "CURRENT RATE" IS NOT CLEAR, WE ARE INCLINED TO THE VIEW THAT THE REQUIREMENTS OF SUBSECTION 101 (B) HAVE BEEN MET WHERE ANY AGENCY CAN ESTABLISH THAT IT IS OPERATING UNDER A FLEXIBLE PLAN THAT WOULD ENABLE CONTINUATION OF ACTIVITIES THROUGHOUT THE FISCAL YEAR 1964 WITHIN THE LEVEL OF THE APPROPRIATIONS AVAILABLE DURING THE PRECEDING FISCAL YEAR OR AS PROVIDED IN THE BUDGET ESTIMATE, WHICHEVER IS LOWER. THE GUIDE FOR AGENCIES RESTRICTED TO THE CURRENT RATE SHOULD GENERALLY BE THE PATTERN OF OBLIGATIONS INCURRED DURING THE FISCAL YEAR 1963. ONCE THE APPROPRIATION ACT HAS BEEN ENACTED, EXPENDITURES MUST BE CHARGED TO THE APPLICABLE APPROPRIATION, AS REQUIRED BY SECTION 103 OF PUB.L. 88 55.

UNDER THE FORMULA ADOPTED BY NASA, THE BUDGET ESTIMATE IS USED AS THE LIMITING FACTOR. SINCE THIS AMOUNT IS IN EXCESS OF THE "CURRENT RATE," I.E., ABOVE THE AMOUNT OF THE APPROPRIATIONS AVAILABLE FOR THE FISCAL YEAR 1963, THE FORMULA IS NOT IN ACCORDANCE WITH THE PROVISIONS OF SUBSECTION 101 (B) LIMITING THE RATE OF OPERATIONS TO THE LOWER OF THE TWO.

DIRECT OBLIGATIONS REPORTED FOR THE FIRST FOUR MONTHS OF FISCAL YEAR 1964 UNDER YOUR APPROPRIATION FOR "RESEARCH, DEVELOPMENT, AND OPERATIONS" AT PRESENT ARE SLIGHTLY IN EXCESS OF ONE-THIRD OF THE TOTAL FUNDS AVAILABLE FOR OBLIGATION DURING FISCAL YEAR 1963. WE CANNOT SAY THAT THIS RATE OF OPERATIONS NECESSARILY WOULD PRECLUDE THE CONTINUATION OF ACTIVITIES THROUGHOUT THE FISCAL YEAR 1964 WITHIN THE APPROPRIATIONS AVAILABLE FOR FISCAL YEAR 1963 OPERATIONS. HOWEVER, CONTINUED APPLICATION OF THE FORMULA, WHICH AS ABOVE INDICATED IS NOT IN ACCORDANCE WITH THE JOINT RESOLUTION, MAY VERY WELL LEAD TO THE INCURRENCE OF A DEFICIENCY IN VIOLATION OF THE JOINT RESOLUTION AND SECTION 3679, REVISED STATUTES, AS AMENDED.