B-163375, AUG 9, 1972, 52 COMP GEN 71

B-163375: Aug 9, 1972

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" THE HOUSE WAS MORE RESTRICTIVE THAN THE SENATE AS TO THE NUMBER OF FEDERAL EMPLOYEES AUTHORIZED TO DETERMINE COMPLIANCE WITH THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970. SECTION 101(A)(4) CONTROLS TO MAKE THE RESTRICTION ON INSPECTION SERVICES INAPPLICABLE UNDER THE JOINT RESOLUTION IN VIEW OF THE FACT A SIMILAR RESTRICTION WAS NOT CONTAINED IN THE 1972 APPROPRIATION ACT. 1972: REFERENCE IS MADE TO YOUR LETTER OF JULY 27. WHEN H.R. 15417 SUBSEQUENTLY WAS PASSED BY THE SENATE ON JUNE 28. THIS PROVISION WAS IDENTICAL WITH THE HOUSE PROVISION EXCEPT THAT THE PROHIBITION ON THE PAYMENT OF SALARIES WAS CHANGED TO PROHIBIT SUCH PAYMENT TO PERSONS INSPECTING FIRMS EMPLOYING "FIFTEEN PERSONS" RATHER THAN "25 PERSONS.".

B-163375, AUG 9, 1972, 52 COMP GEN 71

APPROPRIATIONS - CONTINUING - RESTRICTIONS - IN PERMANENT APPROPRIATIONS ALTHOUGH IN CONSIDERING THE BILL FOR THE "DEPARTMENT OF LABOR, AND HEALTH, EDUCATION AND WELFARE APPROPRIATION ACT, 1973," THE HOUSE WAS MORE RESTRICTIVE THAN THE SENATE AS TO THE NUMBER OF FEDERAL EMPLOYEES AUTHORIZED TO DETERMINE COMPLIANCE WITH THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970, THE INSPECTION ACTIVITIES OF THE LABOR DEPARTMENT UNDER THE 1970 ACT REMAIN UNCHANGED DURING THE EFFECTIVE PERIOD OF THE JOINT RESOLUTION (PUBLIC LAW 92-334), WHICH PROVIDES CONTINUING APPROPRIATIONS FOR FISCAL YEAR 1972 PROJECTS UNTIL FISCAL YEAR 1973 FUNDS BECOME AVAILABLE, FOR NOTWITHSTANDING THAT PURSUANT TO SECTION 101(A)(3) OF THE JOINT RESOLUTION, THE MORE RESTRICTIVE LANGUAGE GOVERNS, SECTION 101(A)(4) CONTROLS TO MAKE THE RESTRICTION ON INSPECTION SERVICES INAPPLICABLE UNDER THE JOINT RESOLUTION IN VIEW OF THE FACT A SIMILAR RESTRICTION WAS NOT CONTAINED IN THE 1972 APPROPRIATION ACT.

TO THE SECRETARY OF LABOR, AUGUST 9, 1972:

REFERENCE IS MADE TO YOUR LETTER OF JULY 27, 1972, ASKING WHETHER THE JOINT RESOLUTION, H.J. RES. 1234, PUBLIC LAW 92-334, APPROVED JULY 1, 1972, 86 STAT. 402, MAKING CONTINUING APPROPRIATIONS FOR FISCAL YEAR 1973, PROHIBITS THE USE OF FUNDS DURING THE EFFECTIVE PERIOD OF THE JOINT RESOLUTION TO CONDUCT FEDERAL COMPLIANCE INSPECTIONS UNDER THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970, APPROVED DECEMBER 29, 1970, 84 STAT. 1590, 29 U.S.C. 651 NOTE.

QUESTION IN THE MATTER ARISES BECAUSE H.R. 15417, 92D CONGRESS, THE "DEPARTMENT OF LABOR, AND HEALTH, EDUCATION, AND WELFARE APPROPRIATION ACT, 1973," WHEN PASSED BY THE HOUSE OF REPRESENTATIVES ON JUNE 15, 1972, CONTAINED A PROVISION FOLLOWING THE APPROPRIATION FOR NECESSARY EXPENSES FOR THE OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, READING AS FOLLOWS:

NONE OF THE FUNDS APPROPRIATED BY THIS ACT SHALL BE EXPENDED TO PAY THE SALARIES OF ANY EMPLOYEES OF THE FEDERAL GOVERNMENT WHO INSPECT FIRMS EMPLOYING 25 PERSONS OR LESS FOR COMPLIANCE WITH THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970.

AND WHEN H.R. 15417 SUBSEQUENTLY WAS PASSED BY THE SENATE ON JUNE 28, 1972, THIS PROVISION WAS IDENTICAL WITH THE HOUSE PROVISION EXCEPT THAT THE PROHIBITION ON THE PAYMENT OF SALARIES WAS CHANGED TO PROHIBIT SUCH PAYMENT TO PERSONS INSPECTING FIRMS EMPLOYING "FIFTEEN PERSONS" RATHER THAN "25 PERSONS."

PERTINENT TO THE QUESTION PRESENTED FOR DECISION ARE THE FOLLOWING PROVISIONS OF SECTION 101(A) OF THE JOINT RESOLUTION WHICH PROVIDES FOR THE APPROPRIATION OF -

(1) SUCH AMOUNTS AS MAY BE NECESSARY FOR CONTINUING PROJECTS OR ACTIVITIES (NOT OTHERWISE SPECIFICALLY PROVIDED FOR IN THIS JOINT RESOLUTION) WHICH WERE CONDUCTED IN THE FISCAL YEAR 1972 AND FOR WHICH APPROPRIATIONS, FUNDS, OR OTHER AUTHORITY WOULD BE AVAILABLE IN THE FOLLOWING APPROPRIATION ACTS FOR THE FISCAL YEAR 1973:

DEPARTMENTS OF LABOR, AND HEALTH, EDUCATION, AND WELFARE, AND RELATED AGENCIES APPROPRIATION ACT;

(3) 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: PROVIDED, THAT NO PROVISION IN ANY APPROPRIATION ACT FOR THE FISCAL YEAR 1973, WHICH MAKES THE AVAILABILITY OF ANY APPROPRIATION PROVIDED THEREIN DEPENDENT UPON THE ENACTMENT OF ADDITIONAL AUTHORIZING OR OTHER LEGISLATION, SHALL BE EFFECTIVE BEFORE THE DATE SET FORTH IN SECTION 102(C) OF THIS JOINT RESOLUTION.

(4) WHENEVER AN ACT LISTED IN THIS SUBSECTION HAS BEEN PASSED BY ONLY ONE HOUSE OR WHERE AN ITEM IS INCLUDED IN ONLY ONE VERSION OF AN ACT AS PASSED BY BOTH HOUSES, THE PERTINENT PROJECT OR ACTIVITY SHALL BE CONTINUED UNDER THE APPROPRIATION, FUND, OR AUTHORITY GRANTED BY THE ONE HOUSE, BUT AT A RATE FOR OPERATIONS NOT EXCEEDING THE CURRENT RATE OR THE RATE PERMITTED BY THE ACTION OF THE ONE HOUSE, WHICHEVER IS LOWER: PROVIDED, THAT NO PROVISION WHICH IS INCLUDED IN AN APPROPRIATION ACT ENUMERATED IN THIS SUBSECTION BUT WHICH WAS NOT INCLUDED IN THE APPLICABLE APPROPRIATION ACT FOR 1972, AND WHICH BY ITS TERMS IS APPLICABLE TO MORE THAN ONE APPROPRIATION, FUND, OR AUTHORITY SHALL BE APPLICABLE TO ANY APPROPRIATION, FUND, OR AUTHORITY PROVIDED IN THIS JOINT RESOLUTION UNLESS SUCH PROVISION SHALL HAVE BEEN INCLUDED IN IDENTICAL FORM IN SUCH BILL AS ENACTED BY BOTH THE HOUSE AND THE SENATE.

YOU POINT OUT THAT THE PRIMARY PURPOSE OF THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970 IS TO ASSURE EVERY WORKING MAN AND WOMAN IN THE NATION SAFE AND HEALTHFUL WORKING CONDITIONS. THE ACT EMPOWERS THE SECRETARY OF LABOR TO CONDUCT INSPECTIONS OF EVERY EMPLOYER AND PLACES NO RESTRICTION ON THAT AUTHORITY BASED ON THE NUMBER OF EMPLOYEES THE EMPLOYER HAS. YOU FURTHER POINT OUT THAT THE SECRETARY IS REQUIRED BY SECTION 8(F) OF THAT ACT, 29 U.S.C. 657, TO CONDUCT INSPECTIONS IN RESPONSE TO VALID EMPLOYEE COMPLAINTS. YOU STATE THAT YOUR DEPARTMENT, FOR PRACTICAL REASONS, STRONGLY WISHES TO CONTINUE ITS PRESENT PROGRAM ACTIVITIES, WITHOUT ANY CHANGE, UNLESS MANDATED TO DO SO BY THE LAW.

INASMUCH AS THE SALARY PAYMENT LIMITATION CONTAINED IN H.R. 15417 AS PASSED BY THE HOUSE OF REPRESENTATIVES IS MORE RESTRICTIVE THAN THAT PASSED BY THE SENATE, IT COULD BE ARGUED THAT UNDER SECTION 101(A)(3) OF THE JOINT RESOLUTION THE SECRETARY'S AUTHORITY TO CONDUCT COMPLIANCE INSPECTIONS IS RESTRICTED TO FIRMS EMPLOYING 26 OR MORE EMPLOYEES.

WE BELIEVE HOWEVER THAT THIS ARGUMENT MUST FAIL IN THAT A SIMILAR RESTRICTION WAS NOT CONTAINED IN THE APPLICABLE 1972 FISCAL YEAR APPROPRIATION ACT; BY ITS TERMS - "NONE OF THE FUNDS APPROPRIATED BY THIS ACT ***" - IT IS APPLICABLE TO MORE THAN ONE APPROPRIATION AND ITS PROVISIONS AS PASSED BY THE HOUSE OF REPRESENTATIVES ARE NOT IDENTICAL WITH THOSE AS PASSED BY THE SENATE. ACCORDINGLY, IT IS OUR VIEW THAT THE RESTRICTIVE LANGUAGE IS GOVERNED BY THE PROVISO TO SECTION 101(A)(4) OF THE JOINT RESOLUTION AND THUS IS INAPPLICABLE TO ANY APPROPRIATION, FUND, OR AUTHORITY PROVIDED IN THE JOINT RESOLUTION. CF. B-142011, AUGUST 6, 1969. YOUR QUESTION, THEREFORE, IS ANSWERED IN THE NEGATIVE.

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