B-152554, NOV 4, 1974

B-152554, NOV 4, 1974

UNDER PRESENT CONTINUING RESOLUTION AUTHORITY, SECTION 101(B) OF PUB. L. NO. 93-324, AS AMENDED BY PUB. L. NO. 93-448, CURRENT RATE FOR OPERATIONS FOR MILITARY ASSISTANCE IS REDUCED FROM $800 MILLION TO $550 MILLION, AND SINCE DOD IN FIRST QUARTER DREW DOWN $200 MILLION, RATE FOR SECOND QUARTER OF FISCAL YEAR 1975 SHOULD NOT EXCEED $117 MILLION, ABSENT EXCEPTIONAL CIRCUMSTANCES CONCERNING WHICH APPROPRIATIONS COMMITTEES RECEIVE ADVANCE NOTICE.

RATE FOR OPERATIONS FOR MILITARY ASSISTANCE:

THIS DECISION TO THE SECRETARY OF DEFENSE RESPONDS TO QUESTIONS RAISED BY THE ACTING ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) CONCERNING THE RATE FOR OPERATIONS FOR THE MILITARY ASSISTANCE PROGRAM (MAP) UNDER THE PRESENT CONTINUING RESOLUTION AUTHORITY.

SECTION 101(B) OF PUBLIC LAW NO. 93-324, APPROVED JUNE 30, 1974, 88 STAT. 281, 282, PROVIDED OBLIGATIONAL AUTHORITY FOR MAP DURING THE FIRST QUARTER OF FISCAL YEAR 1975 (JULY 1 THROUGH SEPTEMBER 30, 1974). H.J. RES. 1167, 93D CONG., APPROVED OCTOBER 17, 1974, PUB. L. NO. 93 448, 88 STAT. 1863, EXTENDED THE PRIOR CONTINUING RESOLUTION, PUB. L. NO. 93-324, UNTIL SINE DIE ADJOURNMENT OF THE SECOND SESSION OF THE NINETY-THIRD CONGRESS, AND ALSO AMENDED SECTION 101(B) OF PUB. L. NO. 93-324 WITH RESPECT TO THE CURRENT RATE FOR MAP OPERATIONS. SECTION 101(B) AS SO AMENDED APPROPRIATES WITH REFERENCE TO MAP:

"(B) SUCH AMOUNTS AS MAY BE NECESSARY FOR CONTINUING PROJECTS OR ACTIVITIES (NOT OTHERWISE PROVIDED FOR IN THIS JOINT RESOLUTION OR OTHER ENACTED APPROPRIATION ACTS FOR THE FISCAL YEAR 1975) WHICH WERE CONDUCTED IN THE FISCAL YEAR 1974 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 -

"ACTIVITIES FOR WHICH PROVISION WAS MADE IN THE FOREIGN ASSISTANCE AND RELATED PROGRAMS APPROPRIATION ACT, 1974, NOTWITHSTANDING SECTION 10 OF PUBLIC LAW 91-672, AND SECTION 655(C) OF THE FOREIGN ASSISTANCE ACT OF 1961, AS AMENDED: PROVIDED, THAT IN COMPUTING THE CURRENT RATE OF OPERATIONS OF MILITARY ASSISTANCE THERE SHALL BE INCLUDED THE AMOUNT OF OBLIGATIONS INCURRED IN DEPARTMENT OF DEFENSE APPROPRIATIONS DURING THE FISCAL YEAR 1974 FOR MILITARY ASSISTANCE TO LAOS."

THE ACTING ASSISTANT SECRETARY REQUESTS OUR OPINION AS TO (1) THE AMOUNT OF THE CURRENT RATE FOR OPERATIONS FOR MAP, AND (2) THE AMOUNT WHICH MAY BE DRAWN UPON FOR MAP DURING THE SECOND QUARTER OF FISCAL YEAR 1975.

WE NOTE AT THE OUTSET THAT THE ACTING ASSISTANT SECRETARY'S QUESTIONS ARE PRESENTED IN THE CONTEXT OF H.J. RES. 1131, 93D CONG., AND ITS LEGISLATIVE HISTORY. H.J. RES. 1131 WAS THE FIRST VERSION OF THE EXTENSION OF PUB. L. NO. 93-324 FOR THE SECOND QUARTER OF FISCAL YEAR 1975 PASSED BY THE CONGRESS; BUT IT WAS SUBSEQUENTLY VETOED BY THE PRESIDENT. THE VERSION OF THE SECOND QUARTER EXTENSION EVENTUALLY ENACTED IS IDENTICAL TO H.J. RES. 1131 FOR PRESENT PURPOSES. ACCORDINGLY, WE WILL ALSO REFER TO THE LEGISLATIVE HISTORY DEVELOPED DURING CONSIDERATION OF H.J. RES. 1131, WHICH REMAINS IN EFFECT APPLICABLE TO THE INSTANT QUESTIONS.

I

THE ACTING ASSISTANT SECRETARY'S FIRST QUESTION CONCERNS THE FISCAL YEAR 1975 RATE FOR MAP OPERATIONS. UNDER THE TERMS OF SECTION 101(B) OF THE CONTINUING RESOLUTION, AS AMENDED, THE APPLICABLE RATE IS THE RATE PROVIDED FOR IN THE BUDGET ESTIMATE OR THE CURRENT RATE, WHICHEVER IS LOWER. THE FISCAL YEAR 1975 BUDGET ESTIMATE FOR MAP IS $985 MILLION. CERTAIN ISSUES ARISE AS TO THE PRECISE AMOUNT OF THE CURRENT RATE AND ARE DISCUSSED HEREINAFTER. HOWEVER, UNDER ANY POSSIBLE CONSTRUCTION, THE CURRENT RATE IS LESS THAN THE BUDGET ESTIMATE AND IS, THEREFORE, CONTROLLING.

COMPUTATION OF THE CURRENT RATE FOR MAP UNDER SECTION 101(B), AS AMENDED, INVOLVES TWO ELEMENTS: THE AMOUNT OF MAP OBLIGATIONAL AUTHORITY FOR FISCAL YEAR 1974, AND "THE AMOUNT OF OBLIGATIONS INCURRED IN DEPARTMENT OF DEFENSE APPROPRIATIONS DURING THE FISCAL YEAR 1974 FOR MILITARY ASSISTANCE TO LAOS." IT IS NOTED THAT THE AMENDMENT TO SECTION 101(B) HAD THE EFFECT OF ELIMINATING FROM THE CURRENT MAP RATE A THIRD ELEMENT - THE AMOUNT OF CONTRACT AUTHORITY USED DURING FISCAL YEAR 1974 FOR MILITARY ASSISTANCE TO CAMBODIA - WHICH HAD BEEN INCLUDED IN THE CONTINUING RESOLUTION FOR THE FIRST QUARTER OF FISCAL YEAR 1975. SEE 88 STAT. 282.

TURNING TO THE RELEVANT FIGURES, THE FISCAL YEAR 1974 APPROPRIATION FOR MAP WAS $450 MILLION. SEE THE FOREIGN ASSISTANCE AND RELATED AGENCIES APPROPRIATION ACT, 1974, APPROVED JANUARY 2, 1974, PUB. L. NO. 93-240, 87 STAT. 1049, 1051. THE ACTING ASSISTANT SECRETARY ADVISES THAT OBLIGATIONS INCURRED FROM DEPARTMENT OF DEFENSE APPROPRIATIONS DURING FISCAL YEAR 1974 FOR MILITARY ASSISTANCE TO LAOS TOTALED $111.7 MILLION.

ACCORDINGLY, IT WOULD AT FIRST APPEAR THAT THE CURRENT RATE FOR MAP UNDER SECTION 101(B), AS AMENDED, IS $450 MILLION PLUS $111.7 MILLION, OR A TOTAL OF $561.7 MILLION. HOWEVER, THE ACTING ASSISTANT SECRETARY ALSO NOTES THAT OF THE $450 MILLION 1974 APPROPRIATION FOR MAP, $5 MILLION WAS TRANSFERRED TO THE SECURITY SUPPORTING ASSISTANCE ACCOUNT PURSUANT TO A PRESIDENTIAL DETERMINATION, AND THAT AN ADDITIONAL AMOUNT OF APPROXIMATELY $4.6 MILLION REMAINED UNOBLIGATED AT THE CLOSE OF FISCAL YEAR 1974. THUS THE QUESTION ARISES WHETHER THIS $9.6 MILLION SHOULD BE DEDUCTED FROM THE 1974 APPROPRIATION OF $450 MILLION IN CALCULATING THE CURRENT RATE. THIS POINT, THE ACTING ASSISTANT SECRETARY OBSERVES:

"THE INITIAL RATE FOR MILITARY ASSISTANCE DURING THE CURRENT FISCAL YEAR (I.E., THE FIRST QUARTER OF FISCAL YEAR 1975) CONSISTED OF THE SUM OF THREE ELEMENTS: 1) THE NORMAL CURRENT RATE BASED UPON MILITARY ASSISTANCE- FUNDED OPERATIONS DURING FY 1974, 2) $250 MILLION IN 'CONTRACT AUTHORITY USED DURING THE FISCAL YEAR 1974 PURSUANT TO SECTION 506(A) OF THE FOREIGN ASSISTANCE ACT OF 1961, AS AMENDED, FOR MILITARY ASSISTANCE TO CAMBODIA,' AND 3) $111.7 MILLION IN 'OBLIGATIONS INCURRED IN DEPARTMENT OF DEFENSE APPROPRIATIONS DURING THE FISCAL YEAR 1974 FOR MILITARY ASSISTANCE TO LAOS.' IF THE FIRST ELEMENT IS CONSIDERED TO BE THE AMOUNT APPROPRIATED FOR MILITARY ASSISTANCE FOR FY 1974, THEN THE INITIAL RATE WAS THE SUM OF $450 MILLION, $250 MILLION, AND $111.7 MILLION, OR $811.7 MILLION. ON THE OTHER HAND, IF THE FIRST ELEMENT MUST TAKE INTO CONSIDERATION THE $5 MILLION TRANSFER AND THE $4.6 MILLION UNOBLIGATED AND UNRESERVED BALANCE, THEN THE INITIAL RATE WAS $9.6 MILLION LESS, OR $802.1 MILLION.

"THE LATTER COMPUTATION METHOD WAS EMPLOYED IN A LETTER, DATED SEPTEMBER 23, 1974, WHICH SENATOR FULBRIGHT ADDRESSED TO SENATOR MCCLELLAN AND WHICH IS PRINTED IN THE CONGRESSIONAL RECORD OF SEPTEMBER 30, 1974, AT PAGE S17763. NEVERTHELESS, SENATOR FULBRIGHT URGED THAT THE RATE FOR MILITARY ASSISTANCE BE REDUCED TO AN ANNUAL RATE OF $450 MILLION, SAYING 'UNDER THE CRITERIA USUALLY FOLLOWED IN CONTINUING RESOLUTIONS, THE AMOUNT APPROPRIATED LAST YEAR SHOULD BE THE RATE ALLOWED, SINCE IT IS LOWER THAN THE BUDGET REQUEST.' SIMILARLY, SENATOR MCCLELLAN INFORMED THE SENATE:

"'IN ANOTHER AMENDMENT, THE COMMITTEE RECOMMENDS A REDUCTION IN THE ANNUAL RATE FOR GRANT OF MILITARY ASSISTANCE FUNDED IN THE FOREIGN ASSISTANCE APPROPRIATION BILL FROM $800 TO $450 MILLION. THE RATE PROPOSED BY THE COMMITTEE EQUALS THE AMOUNT OF NEW OBLIGATIONAL AUTHORITY VOTED LAST YEAR.' (CONGRESSIONAL RECORD, SEPTEMBER 30, 1974, PAGE S17723.)

"THE SENATE APPROPRIATIONS COMMITTEE'S REPORT (S. REPT. NO. 93-1174, SEPT. 25, 1974, P. 3) STATES:

"'MILITARY ASSISTANCE PROGRAM LIMITED TO FISCAL YEAR 1974 APPROPRIATION LEVEL

"'THE COMMITTEE RECOMMENDS AN AMENDMENT TO SECTION 101(B) OF THE ORIGINAL FISCAL YEAR 1975 CONTINUING RESOLUTION DEALING WITH FOREIGN ASSISTANCE WHICH RESTRICTS "CURRENT RATE" FOR THE MILITARY ASSISTANCE PROGRAM TO THE $450,000,000 FISCAL YEAR 1974 APPROPRIATION LEVEL CONTAINED IN THE FOREIGN ASSISTANCE AND RELATED PROGRAMS APPROPRIATION ACT, 1974.'

"IT THUS APPEARS THAT THE CONGRESS CONSIDERS THAT THE NORMAL CURRENT RATE FOR MILITARY ASSISTANCE IS $450 MILLION WITHOUT DEDUCTION FOR EITHER THE $5 MILLION TRANSFER OR THE $4.6 MILLION BALANCE FROM FISCAL YEAR 1974."

THE ACTING ASSISTANT SECRETARY ALSO OBSERVES THAT THE APPROACH OF TREATING THE CURRENT RATE AS THE AMOUNT APPROPRIATED HAS BEEN FOLLOWED IN THE PAST IN AN "ANALOGOUS REVERSE CASE" BY EXCLUSION OF TRANSFERS-IN WHICH HAD THE EFFECT OF INCREASING AMOUNTS APPROPRIATED. SEE OUR LETTER TO SENATOR PROXMIRE DATED FEBRUARY 17, 1972, B-152554; H. REPT. NO. 92-711 (1971), 21.

WE AGREE, FOR THE REASONS STATED BY THE ACTING ASSISTANT SECRETARY, THAT THE $5 MILLION TRANSFER-OUT AND THE $4.6 MILLION UNOBLIGATED BALANCE NEED NOT BE DEDUCTED FROM THE STATED AMOUNT OF THE 1974 APPROPRIATION FOR PURPOSES OF CALCULATING THE CURRENT RATE FOR MAP. IT MIGHT ALSO BE NOTED THAT, WHILE THE $802.1 MILLION FIGURE CITED IN SENATOR FULBRIGHT'S LETTER, REFERRED TO ABOVE, WAS APPARENTLY BASED UPON THESE DEDUCTIONS, THE LETTER DOES NOT EXPRESSLY COMMENT UPON THIS MATTER. THUS IT IS DOUBTFUL THAT SENATOR FULBRIGHT WAS CONCERNED WITH THE STATUS OF THESE ITEMS.

ACCORDINGLY, THE FIRST ELEMENT IN THE CURRENT RATE IS, IN OUR VIEW, THE FULL $450 MILLION AMOUNT APPROPRIATED FOR 1974. WITH REFERENCE TO THE SECOND ELEMENT - 1974 OBLIGATIONS FOR MILITARY ASSISTANCE TO LAOS - THE ACTING ASSISTANT SECRETARY STATES:

"SINCE THE CONFERENCE COMMITTEE AMENDED THE CONTINUING RESOLUTION SIMPLY BY DELETING THE $250 MILLION CONTRACT AUTHORITY ELEMENT FROM THE COMPUTATION OF THE NEW RATE, IT MAY BE THOUGHT THAT THE NEW RATE WOULD EQUAL THE SUM OF $450 MILLION AND THE $111.7 MILLION LAOS ELEMENT, OR $551.7 MILLION. HOWEVER, THE JOINT EXPLANATORY STATEMENT OF THE CONFEREES (H. REPT. NO. 93-1424, OCTOBER 3, 1974, P. 3) MAKES CLEAR THAT THE CONFEREES INTEND THAT THE NEW ANNUAL RATE FOR OPERATIONS FOR THE MILITARY ASSISTANCE PROGRAM IS $550,000,000."

WE AGREE THAT THE CONFEREES CLEARLY INTENDED THAT THE CURRENT RATE FOR MAP BE $550 MILLION. WE MIGHT ADD THAT THIS EXPRESSION OF INTENT IN THE CONFERENCE REPORT ALSO IMPLICITLY REINFORCES THE CONCLUSION HEREINABOVE THAT THE FULL $450 MILLION APPROPRIATED FOR MAP IN 1974 SHOULD BE INCLUDED IN ARRIVING AT THE CURRENT RATE.

IN RESPONSE TO THE ACTING ASSISTANT SECRETARY'S FIRST QUESTION, THEREFORE, WE CONCUR IN HIS CONCLUSION THAT THE CURRENT RATE FOR OPERATIONS FOR MAP UNDER SECTION 101(B) OF THE CONTINUING RESOLUTION, AS AMENDED, IS $550 MILLION.

II

THE ACTING ASSISTANT SECRETARY'S SECOND QUESTION CONCERNS THE INTENDED RATE FOR OPERATIONS FOR MAP DURING THE SECOND QUARTER OF FISCAL YEAR 1975. INITIALLY, IT IS NOTED THAT SECTION 101(B) OF THE CONTINUING RESOLUTION DOES NOT BY ITS TERMS SPECIFY ANYTHING OTHER THAN A "CURRENT" RATE. IN THE ABSENCE OF A MORE SPECIFIC DEFINITION, OUR OFFICE HAS HELD ON SEVERAL OCCASIONS THAT THE "CURRENT" RATE DOES NOT LITERALLY RESTRICT AGENCY OBLIGATIONS DURING ANY PORTION OF A FISCAL YEAR TO AN AMOUNT LESS THAN THE ANNUAL RATE. SEE, E.G., OUR FEBRUARY 17, 1971, LETTER TO SENATOR PROXMIRE, SUPRA, AT 3-4. THUS SECTION 101(B) DOES NOT EXPRESSLY LIMIT MAP OBLIGATIONS DURING THE SECOND QUARTER OF FISCAL YEAR 1975 TO AN AMOUNT LESS THAN $550 MILLION, MINUS OBLIGATIONS INCURRED DURING THE FIRST QUARTER.

THE VERSION OF THE ORIGINAL FISCAL YEAR 1975 CONTINUING RESOLUTION AS REPORTED BY THE SENATE COMMITTEE ON APPROPRIATIONS WOULD HAVE EXPRESSLY LIMITED MAP OBLIGATIONS TO A QUARTERLY RATE. SEE S. REPT. NO. 93-951 (1974), AT 4; AND THE SENATE ADOPTED THE QUARTERLY LIMITATION. THE QUARTERLY LIMITATION WAS DELETED IN CONFERENCE. HOWEVER, THE CONFERENCE REPORT CONTAINED THE FOLLOWING STATEMENT, H. REPT. NO. 93 1158 (1974), AT 3:

"IN DELETING THE QUARTERLY LIMITATION, THE CONFEREES IN NO WAY WISH TO IMPLY THE AGENCIES INVOLVED IN THE ADMINISTRATION OF THE FOREIGN AID ACTIVITIES CAN OBLIGATE FUNDS OR FUND PROJECTS AT AN ACCELERATED RATE. THE MANAGERS AGREE THAT THE ACTIVITIES SHOULD BE FUNDED AT NOT TO EXCEED ONE QUARTER OF THE ANNUAL RATE EXCEPT IN CASES OF EXTREME IMPORTANCE OR IN CASES OF DIRE EMERGENCIES. EVEN IN THESE CASES, THE COMMITTEE ON APPROPRIATIONS OF THE HOUSE OF REPRESENTATIVES AND THE SENATE EXPECT TO BE NOTIFIED IN ADVANCE BEFORE FUNDS ARE OBLIGATED."

THUS, WHILE A QUARTERLY LIMITATION IS NOT ACTUALLY INCLUDED IN SECTION 101(B), THE ACTING ASSISTANT SECRETARY RECOGNIZES: "IT IS ALSO CLEAR THAT THE CONGRESS INTENDED THAT MILITARY ASSISTANCE BE FUNDED NORMALLY AT A QUARTERLY RATE ***." HIS QUESTION RELATES TO COMPUTATION OF THE QUARTERLY RATE FOR THE SECOND QUARTER OF FISCAL YEAR 1975.

AS NOTED PREVIOUSLY, THE APPLICABLE "CURRENT" RATE FOR MAP UNDER THE CONTINUING RESOLUTION FOR THE FIRST QUARTER OF FISCAL YEAR 1975 - WHICH HAD INCLUDED $250 MILLION IN CONTRACT AUTHORITY FOR MILITARY ASSISTANCE TO CAMBODIA - WAS, ACCORDING TO THE ACTING ASSISTANT SECRETARY, $811.7 MILLION; WHICH EQUALLED APPROXIMATELY $200 MILLION FOR THE FIRST QUARTER. THE $200 MILLION FIGURE WAS THE AMOUNT ACTUALLY DRAWN DOWN FOR THE FIRST QUARTER.

THE ACTING ASSISTANT SECRETARY'S POSITION WITH RESPECT TO THE SECOND QUARTER COMPUTATION IS EXPRESSED AS FOLLOWS:

"SINCE THE CONFEREES PROPOSE TO REDUCE THE ANNUAL RATE TO $550 MILLION (SUBSEQUENTLY ACCOMPLISHED IN ENACTMENT OF PUB. L. NO. 93-443), THE NEW 'NORMAL' RATE WOULD SEEM TO BE $137.5 MILLION, THAT IS, ONE FOURTH OF THE NEW RATE, FOR THE SECOND QUARTER OF THE CURRENT FISCAL YEAR. CONTINUING RESOLUTION IS TO EXPIRE NO LATER THAN SINE DIE ADJOURNMENT OF THE SECOND SESSION OF THE NINETY-THIRD CONGRESS PURSUANT TO SECTION 102(C), SO THE RATE FOR MILITARY ASSISTANCE DURING THE FINAL PORTION OF FY 1975 UNDER THE LAW AS IT IS PROPOSED TO BE AMENDED IS ZERO. HOWEVER, THE NEW 'NORMAL' RATE FOR THE SECOND QUARTER COULD BE COMPUTED ANOTHER WAY, THAT IS, THE DIFFERENCE BETWEEN THE FIRST QUARTER RATE AND ONE-HALF OF THE NEW ANNUAL RATE. THE LATTER COMPUTATION WOULD YIELD APPROXIMATELY $75 MILLION FOR THE SECOND QUARTER 'NORMAL' RATE FOR MILITARY ASSISTANCE. GUIDANCE ON THE QUESTION WHETHER THE $137.5 MILLION RATE OR THE $75 MILLION RATE IS INTENDED IS SET FORTH IN THE JOINT EXPLANATORY STATEMENT OF THE CONFEREES.

"HOWEVER, GUIDANCE IS FOUND IN THE FACT THAT THE CONFEREES AGREED TO DELETE AMENDMENT NO. 6 (SENATOR CRANSTON'S AMENDMENT) 'WHICH WOULD HAVE REDUCED FUNDS UNDER THE RESOLUTION FOR ACTIVITIES, PROGRAMS, PROJECTS, OR OTHER OPERATIONS FUNDED BY THE FOREIGN AID APPROPRIATIONS ACT OF 1974 BY 30 PERCENT IN NOVEMBER AND BY 10 PERCENT EACH MONTH THEREAFTER.' THE SENATE HAD PASSED THAT AMENDMENT IN CONJUNCTION WITH AN ANNUAL RATE FOR MILITARY ASSISTANCE OF $450 MILLION. THUS, THE SENATE AMENDMENTS WOULD HAVE RESULTED IN A COMPUTATION OF A MONTHLY RATE OF $37.5 MILLION FOR OCTOBER 1974 (ONE-TWELFTH OF $450 MILLION), $26.25 MILLION FOR NOVEMBER 1974 (70% OF THE MONTHLY RATE), AND $22.5 MILLION FOR DECEMBER 1974 (60% OF THE MONTHLY RATE). THE SUM OF THESE MONTHLY RATES TO WHICH THE SENATE INTENDED MILITARY ASSISTANCE FUNDING BE LIMITED IS $86.25 MILLION IN THE SECOND QUARTER OF FISCAL YEAR 1975.

"IT IS DIFFICULT TO CONCLUDE THAT THE CONFEREES INTENDED TO REDUCE SUCH SECOND QUARTER FUNDING FROM $86.25 MILLION (THE SENATE LEVEL) TO $75 MILLION BY: 1) INCREASING THE ANNUAL RATE FROM $450 MILLION TO $550 MILLION, AND 2) DELETING THE CRANSTON AMENDMENT WHICH THE CONFEREES RECOGNIZED AS A PROPOSAL TO DECREASE THE FUNDING LEVEL FOR MILITARY ASSISTANCE.

"IT IS THEREFORE THE CONCLUSION OF THE DEPARTMENT OF DEFENSE THAT THE CONTINUING RESOLUTION AS IT IS PROPOSED TO BE AMENDED BY THE COMMITTEE OF CONFERENCE ON H.J. RES. 1131, 93D CONGRESS, IS INTENDED TO LIMIT THE NORMAL RATE AT WHICH MILITARY ASSISTANCE IS TO BE FUNDED DURING THE SECOND QUARTER OF THE CURRENT FISCAL YEAR TO NO MORE THAN $137.5 MILLION. IT IS TO BE NOTED THAT SUCH A RATE TOGETHER WITH THE RATE PERMITTED DURING THE FIRST QUARTER, WOULD STILL REMAIN SUBSTANTIALLY BELOW $550 MILLION IN RECOGNITION OF THE STATEMENT THAT 'ACTION BY THE CONFEREES CONTINUING AN ACTUAL "RATE FOR OPERATIONS" FOR THE MILITARY ASSISTANCE PROGRAM OF $550,000,000 SHOULD NOT BE CONSTRUED AS AN OBLIGATION OR INTENTION OF EITHER HOUSE TO APPROPRIATE THIS LEVEL IN THE ANNUAL 1975 APPROPRIATION BILL.' THIS CONCLUSION PROVIDES THE CONGRESS WITH FULL FREEDOM OF DECISION TO CEASE FUNDING MILITARY ASSISTANCE AFTER THE ADJOURNMENT OF THE 93D CONGRESS OR TO APPROPRIATE FUNDS FOR THE CURRENT FISCAL YEAR AT ANY LEVEL AT OR ABOVE $337.5 MILLION."

IT IS TRUE THAT NEITHER THE LANGUAGE OF THE CONTINUING RESOLUTION NOR ITS LEGISLATIVE HISTORY EXPRESSLY PROVIDES GUIDANCE ON THE INSTANT QUESTION. HOWEVER, WE CANNOT AGREE WITH THE CONCLUSION THAT THE SECOND QUARTER RATE SHOULD BE $137.5 MILLION.

IT APPEARS THAT THE ACTING ASSISTANT SECRETARY'S POSITION IS BASED ESSENTIALLY UPON HIS VIEW AS TO THE EFFECT OF THE CONFEREES' ACTION IN DELETING THE CRANSTON AMENDMENT. WE BELIEVE THAT HIS INTERPRETATION READS TOO MUCH INTO THIS CONFERENCE ACTION. WE FIND NO INDICATION THAT THE CRANSTON AMENDMENT WAS CONSIDERED IN TERMS OF THE PRECISE AMOUNTS OF MONTHLY ALLOTMENTS FOR MAP. RATHER, ITS BASIC PURPOSE WAS TO EFFECT PERCENTAGE REDUCTIONS IN MONTHLY ALLOTMENTS - IRRESPECTIVE OF THE PRECISE AMOUNTS INVOLVED - SO AS TO STIMULATE EXPEDITIOUS CONSIDERATION OF REGULAR FOREIGN ASSISTANCE AUTHORIZATION AND APPROPRIATION LEGISLATION. SEE GENERALLY, 120 CONG. REC. S17738, S17763 (DAILY ED., SEPTEMBER 30, 1974) (REMARKS OF SENATOR CRANSTON); ID., S17919-17922 (DAILY ED., OCTOBER 1, 1974) (DEBATE AND ADOPTION OF THE AMENDMENT). THE CONFERENCE REPORT DID NOT ELABORATE UPON DELETION OF THE CRANSTON AMENDMENT, OTHER THAN TO INDICATE CONCERN OVER DELAYS IN ENACTMENT OF FOREIGN ASSISTANCE LEGISLATION. H. REPT. NO. 93-1424 (1974), AT 4. IN THE ABSENCE OF ANY INDICATION TO THE CONTRARY, WE WOULD ASSUME THAT THE CRANSTON AMENDMENT WAS REJECTED BY THE CONFEREES ON THE MERITS RATHER THAN ON THE BASIS OF PRECISE AMOUNTS OF SECOND QUARTER FUNDING WHICH WOULD HAVE APPLIED UNDER IT.

IN ANY EVENT, WE BELIEVE THAT A MORE RELEVANT SOURCE OF GUIDANCE AS TO THE INSTANT QUESTION MAY BE FOUND IN CONSIDERATION OF THE GENERAL CONGRESSIONAL INTENT UNDER CONTINUING RESOLUTIONS TO PROVIDE FOR ONLY THE MOST LIMITED SPENDING SO AS TO PRESERVE MAXIMUM DISCRETION IN THE CONGRESS WHILE AT THE SAME TIME MAKING PROVISION FOR THE ORDERLY CONTINUATION OF ACTIVITIES. FOR EXAMPLE, THIS INTENT IS EXPRESSED IN THE FOLLOWING STATEMENT BY BOTH APPROPRIATIONS COMMITTEES IN THEIR RESPECTIVE REPORTS ON H.J. RES. 1131, H. REPT. NO. 93-1368 (1974), S. REPT. NO. 93-1174 (1974), AT 2-3:

"COMPLIANCE WITH THE RESOLUTION

"IN THE REPORT ACCOMPANYING THE ORIGINAL CONTINUING RESOLUTION FOR FISCAL YEAR 1975, THE COMMITTEE STRONGLY STATED THAT IT IS ESSENTIAL THAT OFFICIALS RESPONSIBLE FOR ADMINISTERING PROGRAMS DURING THE INTERIM PERIOD COVERED BY THE RESOLUTION TAKE ONLY THE LIMITED ACTION NECESSARY FOR ORDERLY CONTINUATION OF PROJECTS AND ACTIVITIES, PRESERVING TO THE MAXIMUM EXTENT POSSIBLE THE FLEXIBILITY OF CONGRESS IN ARRIVING AT FINAL DECISIONS IN THE APPROPRIATION BILLS. THE COMMITTEE REITERATES THIS STATEMENT.

"THIS CONTINUING RESOLUTION ONLY PROVIDES TEMPORARY OPERATING AUTHORITY FOR THE INTERIM PERIOD UNTIL THE CONGRESS MAKES DECISIONS IN THE USUAL MANNER AND IS NOT A VEHICLE FOR PROVIDING FULL YEAR APPROPRIATIONS OR FOR RENDERING FINAL DECISIONS ON ANNUAL FUNDING LEVELS. WITHOUT LAYING DOWN ANY HARD AND FAST RULES AND SHORT OF ENCUMBERING ADMINISTRATIVE PROCESSES WITH DETAILED FISCAL CONTROLS, THE COMMITTEE DIRECTS THAT DEPARTMENTS AND AGENCIES AVOID THE OBLIGATION OF FUNDS FOR SPECIFIC BUDGET LINE ITEMS OR PROGRAM ALLOCATIONS, ON WHICH CONGRESSIONAL COMMITTEES MAY HAVE EXPRESSED STRONG CRITICISM, AT RATES WHICH UNDULY IMPINGE UPON DISCRETIONARY DECISIONS OTHERWISE AVAILABLE TO THE CONGRESS."

IT IS ALSO NOTABLE THAT THE CHAIRMAN OF THE SENATE COMMITTEE ON APPROPRIATIONS EXPRESSED PARTICULAR CONCERN OVER PAST MAP SPENDING LEVELS UNDER CONTINUING RESOLUTION AUTHORITY. SEE 120 CONG. REC. S17723 (DAILY ED., SEPTEMBER 30, 1974). THEREFORE, WE BELIEVE THAT MAP OBLIGATIONS FOR THE SECOND QUARTER OF 1975 MAY NOT BE AT THE RATE OF $137.5 MILLION.

HOWEVER, WE DO NOT BELIEVE THAT THE ALTERNATIVE TO A RATE OF $137.5 MILLION IS NECESSARILY $75 MILLION, AS THE ACTING ASSISTANT SECRETARY SUGGESTS. THE CURRENT RATE FOR OPERATIONS IS $550 MILLION AND APPROXIMATELY $200 MILLION HAS BEEN OBLIGATED IN THE FIRST QUARTER OF FISCAL YEAR 1975. WHILE THE INTENTION OF CONGRESS IS NOT ENTIRELY CLEAR, WE CONSIDER IT REASONABLE TO CONCLUDE THAT THE REMAINING $350 MILLION OF OBLIGATIONAL AUTHORITY MAY BE USED IN APPROXIMATELY EQUAL AMOUNTS FOR EACH OF THE REMAINING THREE QUARTERS OF FISCAL YEAR 1975, I.E., AT A RATE NOT TO EXCEED ONE-THIRD OF $350 MILLION, OR APPROXIMATELY $117 MILLION PER QUARTER, PENDING FURTHER CONGRESSIONAL ACTION.

THE FIGURE OF $117 MILLION IS, UNLIKE THE FIGURE OF $137.5 MILLION, CONSISTENT WITH THE ANNUAL RATE OF $550 MILLION. MOREOVER, IT IS A QUARTERLY RATE, BASED ON THE THREE REMAINING QUARTERS OF THE FISCAL YEAR. IT WOULD PRESERVE SOME OF THE FLEXIBILITY WHICH, AS NOTED ABOVE, THE CONGRESS CONSIDERS TO BE NECESSARY WHILE ARRIVING AT FINAL DECISIONS IN THE APPROPRIATIONS BILLS. WHILE THE $75 MILLION FIGURE WOULD, OF COURSE, ALSO CONTRIBUTE TO THE DESIRED FLEXIBILITY, IT MAY NOT BE FULLY CONSISTENT WITH THE ADDITIONAL CONGRESSIONAL PURPOSE OF THE ORDERLY CONTINUATION OF PROJECTS AND ACTIVITIES.

FOR THE REASONS STATED HEREINABOVE, AND IN RESPONSE TO THE ACTING ASSISTANT SECRETARY'S SECOND QUESTION, IT IS OUR OPINION THAT MAP OBLIGATIONS DURING THE SECOND QUARTER OF FISCAL YEAR 1975 SHOULD NOT EXCEED $117 MILLION. ACCORDINGLY, WE WILL BE PREPARED TO COUNTERSIGN APPROPRIATION WARRANTS FOR THE SECOND QUARTER IN THAT AMOUNT. RECOGNIZING THAT, AS STATED PREVIOUSLY, THE QUARTERLY LIMITATION DERIVES FROM THE INTENT EXPRESSED IN THE CONFERENCE REPORT ON THE CONTINUING RESOLUTION (H. REPT. NO. 93-1158 AT 3), WE WOULD BE WILLING TO COUNTERSIGN WARRANTS IN EXCESS OF THE $117 MILLION AMOUNT IF, BUT ONLY IF, ASSURANCES ARE GIVEN THAT THE CONDITIONS SPECIFIED IN THAT CONFERENCE REPORT, QUOTED HEREINABOVE, HAVE BEEN SATISFIED.