B-152098 March 26, 1973

B-152098 March 26, 1973

The Honorable Garner R. Shriver House of Representatives

Dear Mr. Shriver:

Reference is made to your letter of February 23, 1973, asking, in effect, if we agree with the manner in which the Department of Health, Education, and Welfare (HEW) is applying Public Law 92-334, approved July 1, 1972, as amended, the so-called "Continuing Resolution," to the Educationally Deprived Children Program (Title I-A of the Elementary and Secondary Education Act).

Funds in the amount of $1.81 billion were provided for the title I-A program by H. R. 15417, the bill providing appropriations for the Departments of Labor, and Health, Education, and Welfare, and Related Agencies for fiscal year 1973. This amount was included in H. R. 16654, also was subsequently vetoed (pocket veto) by the President.

As pointed our in your letter, we agreed in our letter of January 15, 1973, to the Chairman, House of Committee on Appropriations, that under those circumstances H. R. 15417 remains controlling insofar as the continuing Resolution was concerned. In other words the spending level authorized byt he Continuing Resolution for any project or activity for which funds were provided in H. R. 15417 is the amount provided therein as it passed the House or the Senate whichever is lower. Accordingly, since, as stated above, the amount provided for the Educationally Deprived Children Program--$1.81 billion, was in each the Senate and House version of H. R. 15417 when it was passed by those bodies, it is our view that such amount is available for the program under the Continuing Resolution.

Accordingly, we do not agree with HEW which, you report, considers the amount available for the program for fiscal year 1973 as being the lesser amount of the funds appropriated for program purposes in 1972 or the amount set out in the fiscal year 1973 budget estimates.

You also point out that, as passed by the Senate, H. R. 15417 contained a provision providing--

That the aggregate amounts made available to each State under title I-A [Educationally Deprived Children Program] for grants to local education agencies within that State, shall not be less than such amount as were made available for that purpose for fiscal year 1972.

You state that notwithstanding such provision, that Office of Education now estimates that 29 States will receive less in fiscal year 1973 than they received in fiscal year 1972.

Since the provision quoted above wwas not in H. R. 15417 as passed by the House, there appears for consideration section 101 (a)(3) of the Continuing Resolution which provides in pertinent part as follows:

Whenever the amount which would be made available or the authority which would be granted under an Act listed in this subsection as passed by the House is different from that which would be available or granted under such Act as passed by the Senate, the pertinent project or activity shall be continued under the lesser amount or the more restrictive authority:***

In view of such provision and since the amount in the bill as it passed the House and Senate was the same, there is for determination the question as to which version of H. R. 15417 (i.e. as passed by the House or as passed by the Senate), contains the more restrictive authority. While a reasonable case apprently could be made for either version of H. R. 15417, we are of the view that since under H. R. 15417 as passed by the Senate the Secretary has less discretion in distributing the available funds, the Senate version is the more restrictive and is controlling in the circumstances considered herein.

As to HEW's position, we are not aware of the reasons for HEW basing their fiscal year 1973 estimate for title I-A monies on the lesser amount of its fiscal year 1972 appropriations (for title I-A purpose) and its fiscal year 1973 budget. We might point out, however, that while section 101(b) of the "Continuing Resolution" provides for agencies continuing projects or operations which were conducted in fiscal year 1972--and which are listed in that subsection--at a rate not in excess of the current rate or the rate provided in the budget estimate, whichever is the lower and under the more restrictive authority, title I-A activities (Educationally Deprived Children) are not listed in section 101(b). Hence, section 101(b) has no application whatever to HEW's projects and activities.

Sincerely yours,

ELMER B. STAATS Comptroller General of the United States