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EDUCATION AND WELFARE: WE HAVE YOUR LETTER OF SEPTEMBER 18. - CERTAIN PRELIMINARY ADMINISTRATIVE ACTIVITIES SHORT OF MAKING ACTUAL GRANTS WERE CARRIED OUT BY YOUR DEPARTMENT IN PURSUANCE OF THESE PROGRAMS. BECAUSE WE ALSO UNDERSTOOD THAT SUCH ADMINISTRATIVE EXPENSES RELATING TO THE HEALTH PROFESSIONS EDUCATIONAL ASSISTANCE ACT HAD BEEN CHARGED TO FISCAL YEAR 1964 AND 1965 APPROPRIATIONS OF THE PUBLIC HEALTH SERVICE MADE SPECIFICALLY AVAILABLE FOR ONLY HOSPITAL CONSTRUCTION ACTIVITIES AND SINCE IT DID NOT APPEAR THAT THE APPROPRIATIONS UTILIZED WERE LEGALLY AVAILABLE FOR THESE CHANGES. THE SCHEDULE WHICH YOU HAVE SUBMITTED SHOWS THAT FUNDS HAVE BEEN OBLIGATED THROUGH AUGUST 31. A SIGNIFICANT PORTION OF THESE OBLIGATIONS WERE CHARGED AGAINST FISCAL YEAR 1964 FUNDS AND CONTINUING APPROPRIATIONS FOR FISCAL YEAR 1965 RELATED TO OTHER PROGRAMS.

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B-153694, OCT. 23, 1964

TO THE HONORABLE SECRETARY OF HEALTH, EDUCATION AND WELFARE:

WE HAVE YOUR LETTER OF SEPTEMBER 18, 1964, AND ENCLOSURE, IN RESPONSE TO OURS OF SEPTEMBER 2 RAISING QUESTION IN THE MATTER OF INITIATING VARIOUS NEWLY AUTHORIZED PROGRAMS PRIOR TO APPROPRIATIONS THEREFOR.

IN OUR LETTER WE STATED OUR UNDERSTANDING THAT NOTWITHSTANDING THE FAILURE OF APPROPRIATIONS FOR VARIOUS PROGRAMS NEWLY AUTHORIZED IN FISCAL YEAR 1964--- THE CLEAN AIR ACT, 77 STAT. 392; THE MENTAL RETARDATION FACILITIES AND COMMUNITY MENTAL HEALTH CENTERS CONSTRUCTION ACT OF 1963, ID. 282; THE HIGHER EDUCATION FACILITIES ACT OF 1963, ID 363; THE VOCATIONAL EDUCATION ACT OF 1963, ID. 403; AND THE HEALTH PROFESSIONS EDUCATIONAL ASSISTANCE ACT OF 1963, ID. 164--- CERTAIN PRELIMINARY ADMINISTRATIVE ACTIVITIES SHORT OF MAKING ACTUAL GRANTS WERE CARRIED OUT BY YOUR DEPARTMENT IN PURSUANCE OF THESE PROGRAMS. BECAUSE WE ALSO UNDERSTOOD THAT SUCH ADMINISTRATIVE EXPENSES RELATING TO THE HEALTH PROFESSIONS EDUCATIONAL ASSISTANCE ACT HAD BEEN CHARGED TO FISCAL YEAR 1964 AND 1965 APPROPRIATIONS OF THE PUBLIC HEALTH SERVICE MADE SPECIFICALLY AVAILABLE FOR ONLY HOSPITAL CONSTRUCTION ACTIVITIES AND SINCE IT DID NOT APPEAR THAT THE APPROPRIATIONS UTILIZED WERE LEGALLY AVAILABLE FOR THESE CHANGES, WE REQUESTED YOUR VIEWS AND THAT YOU FURNISH US A SCHEDULE SHOWING THE AMOUNT OF FUNDS OBLIGATED IN CONNECTION WITH EACH OF THE NEW PROGRAMS TOGETHER WITH THE APPROPRIATIONS CHARGED THEREWITH.

THE SCHEDULE WHICH YOU HAVE SUBMITTED SHOWS THAT FUNDS HAVE BEEN OBLIGATED THROUGH AUGUST 31, 1964, UNDER THE VARIOUS PROGRAMS IN THE AMOUNTS OF $637,016 AGAINST FISCAL YEAR 1964 APPROPRIATIONS AND $165,458 AGAINST FISCAL YEAR 1965 APPROPRIATIONS. IN THE ABSENCE OF APPROPRIATIONS FOR THE PARTICULAR PROGRAMS INVOLVED, A SIGNIFICANT PORTION OF THESE OBLIGATIONS WERE CHARGED AGAINST FISCAL YEAR 1964 FUNDS AND CONTINUING APPROPRIATIONS FOR FISCAL YEAR 1965 RELATED TO OTHER PROGRAMS. YOUR JUSTIFICATION FOR SO DOING IS THE "* * * TRADITIONAL (PRACTICE OF) GOVERNMENT AGENCIES NOT TO ABSTAIN FROM ANY EFFORT TO CARRY OUT LEGISLATION UNTIL APPROPRIATIONS ARE MADE SPECIFICALLY AVAILABLE THEREFOR BY THE CONGRESS.'

BEFORE DEALING WITH THE SPECIFIC ITEMS COVERED IN THE SCHEDULE WHICH YOU FURNISHED, IT WOULD BE WELL TO INCLUDE A FULL STATEMENT OF YOUR POSITION AS SET FORTH IN THE FOLLOWING PARAGRAPHS OF YOUR LETTER:

"WE HAVE ALWAYS REGARDED IT INCUMBENT UPON THE AGENCY OR DEPARTMENT CHARGED WITH THE DUTY OF CARRYING OUT THE LAWS ENACTED BY CONGRESS TO UNDERTAKE, PROMPTLY UPON PASSAGE, TO DISCHARGE ITS RESPONSIBILITIES THEREUNDER TO THE FULLEST EXTENT POSSIBLE, CONSISTENT WITH THE DUTIES IN RELATION TO OTHER LAWS IT IS REQUIRED TO ADMINISTER. THUS UPON ENACTMENT OF LAWS WHICH, BY THEIR TERMS, CALL FOR THE ISSUANCE AND PUBLICATION OF REGULATIONS, THE SUBMISSION OF APPLICATIONS TO THE AGENCY IN ORDER TO BE ELIGIBLE TO RECEIVE THE BENEFITS PROVIDED BY THE LAWS, THE SUBMISSION OF STATE PLANS, THE MAKING OF REPORTS TO CONGRESS, ETC., IT HAS BEEN CUSTOMARY FOR THE ADMINISTERING AGENCY TO ASSIGN ITS PERSONNEL TO THE PRELIMINARY TASKS OF FORMULATING THE CRITERIA AND POLICIES TO GUIDE THE ACTIVITY WHICH THE NEWLY ENACTED LAWS AUTHORIZE, THE DRAFTING AND ISSUANCE OF REGULATIONS, THE PREPARATION OF STATE PLAN GUIDES, APPLICATION FORMS, ETC. (FOR EXAMPLE, OBLIGATIONS OF THE ENUMERATED KIND ARE IMPOSED BY SECS. 133, 134 (B), 202 (A), 203, 204 (B), OF THE MENTAL RETARDATION FACILITIES AND COMMUNITY HEALTH CONSTRUCTION ACT, AND BY SEC. 107 (A) AND (B)OF THE HIGHER EDUCATION FACILITIES ACT.)

"IT HAS BEEN TRADITIONAL FOR GOVERNMENT AGENCIES NOT TO ABSTAIN FROM ANY EFFORT TO CARRY OUT LEGISLATION UNTIL APPROPRIATIONS ARE MADE SPECIFICALLY AVAILABLE THEREFOR BY THE CONGRESS. TO THE CONTRARY, IT WOULD BE DIFFICULT, INDEED, TO JUSTIFY AN AGENCY'S COMPLETE INDIFFERENCE TO THE DUTIES PRESCRIBED BY LAW BECAUSE FUNDS TO CARRY IT OUT WERE NOT CONTEMPORANEOUSLY APPROPRIATED.

"IN FACT IT IS NOT CLEAR HOW FUNDS WOULD EVER BECOME AVAILABLE IF THE RESPONSIBLE AGENCY WERE TO REFRAIN FROM ALL ACTION IN THE ADMINISTRATION OF NEW LEGISLATION UNTIL FUNDS WERE APPROPRIATED. A STEP PRECEDENT TO THE APPROPRIATION OF FUNDS IS THE DEVELOPMENT OF A BUDGET. A CAREFULLY DEVELOPED AND SUPPORTED BUDGET PLAN REQUIRES DECISIONS ON METHODS OF PROGRAM ADMINISTRATION, INCLUDING ORGANIZATIONAL ASSIGNMENT OF RESPONSIBILITY, BROAD OUTLINES OF POLICY AND PROCEDURE, WORKLOAD AND STAFFING REQUIREMENTS AND DETAILED COST ESTIMATES. TO ADEQUATELY SUPPORT A BUDGET BEFORE THE CONGRESS, THE WITNESSES ARE EXPECTED TO BE KNOWLEDGEABLE OF REQUIREMENTS, INTERESTS, READINESS TO PROCEED AND SIMILAR PROGRAM INFORMATION. THE ABILITY TO RESPOND TO SUCH OBVIOUSLY APPROPRIATE QUESTIONS IS DEPENDENT UPON THE USE OF EXPERTS, CONSULTATION WITH STATE'S LOCALITIES, EDUCATIONAL INSTITUTIONS, AND SIMILAR NON-FEDERAL ORGANIZATIONS WHICH CAN BE EXPECTED TO PARTICIPATE IN THE PROGRAM.'

WE AGREE WITH THE GENERAL IMPORT OF YOUR STATEMENTS AND HAVE RECOGNIZED THE PROPRIETY OF UTILIZING CURRENT APPROPRIATIONS FOR THE CONDUCT OF ADDITIONALLY IMPOSED FUNCTIONS WHICH WERE NOT CONTEMPLATED AT THE TIME OF ENACTMENT OF THE APPROPRIATION. INDEED, YOU REFER, ELSEWHERE IN YOUR LETTER, TO OUR DECISIONS AT 15 COMP. GEN. 167; 30 ID. 205, 258; AND 32 ID. 347, IN SUPPORT OF YOUR POSITION. BUT INHERENT IN THE PRINCIPLE INVOLVED- -- AND A FACTOR WHICH IS NEGLECTED IN YOUR STATEMENT IN TERMS OF APPLYING YOUR POSITION TO SOME OF THE SITUATIONS CONSIDERED HEREIN--- IS THAT THE APPROPRIATION TO BE CHARGED MUST BE FRAMED IN SUFFICIENTLY BROAD TERMS TO EMBRACE EXPENDITURES FOR THE NEW FUNCTION IMPOSED. SECTION 3678, REVISED STATUTES, 31 U.S.C. 628, PROVIDES THAT:

"EXCEPT AS OTHERWISE PROVIDED BY LAW, SUMS APPROPRIATED FOR THE VARIOUS BRANCHES OF EXPENDITURE IN THE PUBLIC SERVICE SHALL BE APPLIED SOLELY TO THE OBJECTS FOR WHICH THEY ARE RESPECTIVELY MADE, AND FOR NO OTHERS.'

WHERE AN ADDITIONAL DUTY IS IMPOSED UPON AN AGENCY WITHOUT AN APPROPRIATION SPECIFICALLY HAVING BEEN MADE TO COVER SUCH DUTY, IT DOES NO VIOLENCE TO THE CITED PROVISIONS TO CHARGE THE EXPENDITURES CONNECTED WITH THE NEW DUTY TO APPROPRIATIONS PREVIOUSLY MADE, IF THE DUTY INVOLVED IS AN "OBJECT" WITHIN THE AMBIT OF THE PRIOR APPROPRIATION BEING CHARGED. THE DETERMINATION AS TO WHETHER THE SITUATIONS CONSIDERED IN THE CITED DECISIONS OF THIS OFFICE MET THIS TEST IS PRECISELY THE ISSUE WITH WHICH THOSE DECISIONS DEALT. BUT WHERE THE ADDITIONAL DUTY, FUNCTION, OR PROGRAM IS NOT IN ANY WAY RELATED TO THE OBJECTS FOR WHICH THE APPROPRIATION TO BE CHARGED HAS BEEN MADE, IT IS MANIFEST THAT USE OF THE APPROPRIATION CANNOT BE DEEMED PROPER IN THE FACE OF THE QUOTED PROVISIONS OF LAW.

WITH THIS BACKGROUND, WE NOW TURN TO THE SPECIFIC OBLIGATIONS AND APPROPRIATION CHARGES COVERED IN THE SCHEDULE WHICH YOU SUBMITTED.

IN THE OFFICE OF EDUCATION, A TOTAL OF $157,177 WAS CHARGED TO FISCAL YEARS 1964 AND 1965 APPROPRIATIONS FOR SALARIES AND EXPENSES, 77 STAT. 232 AND 78 STAT. 223, COVERING ADMINISTRATIVE ACTIVITIES RELATING TO TITLE III OF THE MENTAL RETARDATION FACILITIES AND COMMUNITY MENTAL HEALTH CENTERS CONSTRUCTION ACT OF 1963, THE HIGHER EDUCATION FACILITIES ACT OF 1963, AND THE VOCATIONAL EDUCATIONAL ACT OF 1963. AS THE APPROPRIATIONS CHARGED WERE AVAILABLE "FOR EXPENSES NECESSARY FOR THE OFFICE OF EDUCATION * * *" AND SINCE EACH OF THE PROGRAMS INVOLVED WAS TO BE ADMINISTERED BY THE COMMISSIONER OF EDUCATION, THERE WOULD NOT APPEAR TO BE ANY BASIS FOR RAISING LEGAL OBJECTION, IN LIGHT OF THE RATIONALE OUTLINED ABOVE. SEE ALSO SUPPLEMENTAL APPROPRIATIONS MADE BY PUBLIC LAW 88-268, APPROVED FEBRUARY 10, 1964, 78 STAT. 9, UNDER THE HEADING EDUCATIONAL IMPROVEMENT FOR THE HANDICAPPED.

IN THE PUBLIC HEALTH SERVICE, THE FOLLOWING APPROPRIATION CHARGES WERE MADE IN CONNECTION WITH THE MENTAL RETARDATION FACILITIES CONSTRUCTION ACT AND THE COMMUNITY MENTAL HEALTH CENTERS ACT:

CHART

1964 1965

---- ---- 1. HOSPITAL CONSTRUCTION ACTIVITIES $ 25,955 $ 22,045 2. MENTAL HEALTH ACTIVITIES 278,139

22,789 3. NATIONAL INSTITUTE OF CHILD HEALTH 48,796 8,210

AND HUMAN DEVELOPMENT 4. GENERAL RESEARCH AND SERVICES, NIH 20,400 6,300

TOTAL $373,290 $59,344

THE MENTAL RETARDATION FACILITIES CONSTRUCTION ACT IS SUBDIVIDED INTO: PART A, GRANTS FOR CONSTRUCTION OF CENTERS FOR RESEARCH ON MENTAL RETARDATION AND RELATED ASPECTS OF HUMAN DEVELOPMENT; PART B, PROJECT GRANTS FOR CONSTRUCTION OF UNIVERSITY AFFILIATED FACILITIES FOR THE MENTALLY RETARDED; AND PART C, GRANTS FOR CONSTRUCTION OF FACILITIES FOR THE MENTALLY RETARDED. PUBLIC LAW 88-268, ABOVE, UNDER THE HEADING HOSPITAL CONSTRUCTION ACTIVITIES PROVIDED $5,049,000 OF WHICH $5,000,000 WAS FOR GRANTS UNDER PART B OF THE ACT; $49,000 WAS PROVIDED FOR ADMINISTRATION OF THE NEW PROGRAM. SEE SENATE REPORT NO. 814, DECEMBER 20, 1963. THEREFORE, TO THE EXTENT THAT THE CHARGES TO THE APPROPRIATIONS FOR "HOSPITAL CONSTRUCTION ACTIVITIES" RELATE TO PART B THERE IS NO IMPROPRIETY.

PUBLIC LAW 88-268 ALSO, UNDER THE HEADING GRANTS FOR CONSTRUCTION OF HEALTH RESEARCH FACILITIES, APPROPRIATED $6,000,000 FOR GRANTS UNDER PART A OF THE MENTAL RETARDATION FACILITIES ACT (PART D OF TITLE VII) OF THE PUBLIC HEALTH SERVICE ACT, AS AMENDED). FUNDS WERE NOT PROVIDED FOR ADMINISTRATIVE EXPENSES CONNECTED WITH MAKING SUCH GRANTS. HOWEVER, IT WAS UNDERSTOOD BY THE CONGRESS THAT FUNDS FOR ADMINISTRATION WERE TO BE OBTAINED THROUGH THE REPROGRAMMING OF FUNDS AVAILABLE TO THE NATIONAL INSTITUTES OF HEALTH, THE ADMINISTERING AGENCY. SEE HOUSE REPORT NO. 1041, DECEMBER 14, 1963, AND PARTICULARLY SENATE REPORT NO. 814, DECEMBER 20, 1963, AT PAGE 3. ACCORDINGLY, TO THE EXTENT THAT THE APPROPRIATION CHARGES SCHEDULED ABOVE AGAINST FUNDS OF THE NATIONAL INSTITUTES OF HEALTH RELATE TO ADMINISTRATION OF PART A, THERE IS NO REASON FOR OBJECTION.

WITH RESPECT TO THAT PORTION OF THE ACT DEALING WITH GRANTS FOR CONSTRUCTION OF FACILITIES FOR THE MENTALLY RETARDED, PART C, THERE CAN BE NO QUESTION--- AS IS TRUE ALSO WITH RESPECT TO THE OTHER PARTS- - BUT THAT ADDITIONAL FUNCTIONS WERE IMPOSED. SEE SECTION 133, 77 STAT. 287, REQUIRING THE ISSUANCE OF REGULATIONS WITHIN SIX MONTHS AFTER ENACTMENT AND SECTION 134 PERTAINING TO THE SUBMISSION OF STATE PLANS AFTER SUCH REGULATIONS HAVE BEEN ISSUED. WE UNDERSTAND THAT THE PRELIMINARY ADMINISTRATIVE EXPENDITURES INVOLVED WERE CHARGED TO "HOSPITAL CONSTRUCTION ACTIVITIES.' HOWEVER, THIS APPROPRIATION, BY ITS LITERAL TERMS WAS NOT AVAILABLE FOR SUCH CHARGE THE LANGUAGE THEREIN BEING DIRECTED TO CERTAIN SPECIFICALLY DESIGNATED ACTIVITIES COVERED IN TITLE VI OF THE PUBLIC HEALTH SERVICE ACT, AS AMENDED, 42 U.S.C. 291-291Z, WITHOUT ANY GENERAL PROVISION TO COVER ACTIVITIES NOT MENTIONED, 77 STAT. 235. PART C DOES NOT FALL UNDER TITLE VI. NOR CAN IT BE SAID THAT THE ACTIVITIES UNDER PART C ARE SO CLOSELY RELATED TO THE PURPOSES OR ,OBJECTS" OF THE APPROPRIATIONS CHARGED AS TO BRING THE SITUATION UNDER THE GOVERNING RULE RESPECTING NEWLY IMPOSED DUTIES.

EXPENDITURES RELATING TO THE COMMUNITY MENTAL HEALTH CENTERS ACT ALSO CALLED FOR RAPID ISSUANCE OF REGULATIONS AND SUBMISSION OF STATE PLANS, 77 STAT. 291. THESE COSTS WERE CHARGED PRIMARILY TO THE APPROPRIATIONS FOR "MENTAL HEALTH ACTIVITIES" COVERING SPECIFIC PURPOSES. AGAIN, THE APPROPRIATIONS CHARGED MAY NOT REASONABLY BE CONSIDERED TO RELATE TO THE PURPOSES FOR WHICH THEY WERE USED IN THIS INSTANCE.

THE FOLLOWING APPROPRIATION CHARGES WERE MADE IN CONNECTION WITH THE HEALTH PROFESSIONS EDUCATIONAL ASSISTANCE ACT OF 1963:

CHART

1964 1965

---- ---- 1. HOSPITAL CONSTRUCTION ACTIVITIES $ 50,485 $25,275 2. DENTAL SERVICES AND RESOURCES 9,345 4,825 3. NURSING SERVICES AND RESOURCES 18,070 -0- 4. COMMUNITY HEALTH PRACTICE AND 43,300 8,130

RESEARCH 5. GENERAL RESEARCH AND SERVICES 11,200 12,100

NIH --------- ---------

$132,400 $50,330

EACH OF THE APPROPRIATIONS CHARGED, EXCEPT FOR THE LAST, WAS MADE FOR SPECIFIC PURPOSES AND NONE OTHER, 77 STAT. 234, 235, 78 STAT. 223. WHAT WE SAID ABOVE CONCERNING CHARGES UNDER THE COMMUNITY MENTAL HEALTH CENTERS ACT AND PART C OF THE MENTAL RETARDATION FACILITIES CONSTRUCTION ACT IS EQUALLY APPLICABLE TO THE FIRST FOUR ITEMS SCHEDULED. SINCE THE LAST ITEM IS A GENERAL APPROPRIATION "FOR ACTIVITIES OF THE NATIONAL INSTITUTE OF HEALTH, NOT OTHERWISE PROVIDED FOR * * *" NO OBJECTION IS PERCEIVED AS TO THE CHARGES MADE THERETO. FINALLY, IN THE CASE OF THE CLEAN AIR ACT, INVOLVING CHARGES AMOUNTING TO $16,568 FOR FISCAL YEAR 1964 AND $13,365 FOR 1965 TO THE APPROPRIATION "AIR POLLUTION," THERE IS NO BASIS FOR OBJECTION. ALTHOUGH THE APPROPRIATION, 77 STAT. 235, WAS STATED IN TERMS OF SPECIFIC PURPOSES, THE CLEAN AIR ACT WAS IN TERMS OF AMENDMENTS TO THOSE PURPOSES SUFFICIENTLY RELATED TO FALL WITHIN THE TERMS OF THE APPROPRIATION.

ORDINARILY UNDER SUCH CIRCUMSTANCES AS CONCERN THE IMPROPER CHARGES DETAILED ABOVE, WE WOULD CONCLUDE THAT THE ANTI-DEFICIENCY STATUTE HAD BEEN VIOLATED REQUIRING A REPORT OF THE MATTER TO THE CONGRESS, AND WE WOULD STATE EXCEPTIONS IN THE ACCOUNTABLE OFFICERS' ACCOUNTS FOR THE IMPROPER DISBURSEMENT OF THE FUNDS INVOLVED. HOWEVER, THE MATTER HAS BEEN SQUARELY BEFORE THE COMMITTEES ON APPROPRIATIONS OF CONGRESS. IN HOUSE REPORT NO. 1041, DECEMBER 14, 1963, THE HOUSE COMMITTEE ON APPROPRIATIONS STATED AT PAGE 3 THAT:

"* * * THE COMMITTEE IS SERIOUSLY DISTURBED ABOUT THE MANNER OF HANDLING ADMINISTRATIVE EXPENSES * * *.'

THE SENATE COMMITTEE ON APPROPRIATIONS, IN COMMENTING UPON THE HOUSE COMMITTEE'S REPORT, STATED THAT:

"* * * FUNDS APPROPRIATED SHOULD BE USED ONLY FOR THE PURPOSE FOR WHICH THEY WERE MADE AVAILABLE. IT IS THE COMMITTEE'S CONCLUSION, HOWEVER, THAT THE DEPARTMENT HAS A RESPONSIBILITY TO THE EXTENT POSSIBLE TO CARRY OUT EXPANDED ACTIVITIES SUCH AS THE ENLARGED PROGRAM OF MENTAL RETARDATION AND MENTAL HEALTH WITHIN ITS AVAILABLE RESOURCES TO THE MAXIMUM EXTENT POSSIBLE AND SHOULD SEEK SUPPLEMENTAL FUNDS AND ADDITIONAL STAFF ONLY TO THE EXTENT THAT IT IS UNABLE TO PERFORM THE WORK WITHOUT SEEKING SUCH INCREASES * * *.' (SEE SENATE REPORT NO. 814, DECEMBER 20, 1963, AT PAGE 5.)

ON PAGE 7 OF THE CONFERENCE REPORT ACCOMPANYING H.R. 10809 (HOUSE REPORT NO. 1880, SEPTEMBER 2, 1964) THE MANAGERS ON THE PART OF THE HOUSE STATED THAT:

"THE CONFEREES ARE AGREED THAT (THE HEALTH PROFESSIONS EDUCATIONAL ASSISTANCE PROGRAM) IS A VERY IMPORTANT PROGRAM, BUT THE MANAGERS ON THE PART OF BOTH THE HOUSE AND THE SENATE DO NOT IN ANY WAY CONDONE THE ACTIONS OF THE DEPARTMENT IN STARTING THIS PROGRAM BEFORE A SINGLE DOLLAR HAD BEEN APPROPRIATED FOR THE PURPOSE. THE DEPARTMENT HAS ESTABLISHED THE ADVISORY COUNCIL, HAS ACCEPTED AND PROCESSED APPLICATIONS, AND THE ADVISORY COUNCIL HAS ACTUALLY APPROVED APPLICATIONS TOTALING MANY MILLIONS OF DOLLARS. THESE ACTIVITIES COULD ONLY HAVE BEEN CARRIED OUT BY REPROGRAMMING FUNDS APPROPRIATED FOR OTHER PURPOSES. BOTH THE DEPARTMENT OF LABOR AND THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE HAVE CONTINUED TO ABUSE LEGAL FLEXIBILITY WHICH THEY HAVE BEEN ALLOWED BY CONGRESS IN THE FACE OF CONTINUED INFORMAL WARNINGS. AND, AT TIMES (SUCH AS THIS EXAMPLE) REPROGRAMMING HAS AT LEAST BORDERED ON THE ILLEGAL * *

THE CONFEREES RECOMMENDED THAT THE FOLLOWING UNDERSCORED LANGUAGE BE ADDED TO SECTION 906 OF H.R. 10809 WHICH WAS ENACTED AS PUB.L. 88 605, 78 STAT. 605:

"SEC. 906. NONE OF THE FUNDS CONTAINED IN THIS ACT SHALL BE USED FOR IMPLEMENTING ANY PROVISION OF THE ECONOMIC OPPORTUNITY ACT OF 1964, NOR SHALL ANY FUNDS CONTAINED IN THIS ACT BE OBLIGATED FOR ANY ACTIVITY IN EXCESS OF THE AMOUNT SET FORTH FOR THE ACTIVITY IN THE SCHEDULES CONTAINED IN THE PRESIDENT'S BUDGET FOR 1965, EXCEPT IN THOSE INSTANCES WHERE A GREATER AMOUNT WAS SPECIFIED BY THE CONGRESS.'

IN VIEW OF THE FACT THAT THE CONGRESS IS FULLY COGNIZANT OF THE IMPROPER PRACTICES ENGAGED IN, WE DO NOT BELIEVE THAT ANY USEFUL PURPOSE WOULD BE SERVED IN SEGREGATING THOSE APPROPRIATION CHARGES IMPROPERLY MADE FROM THOSE WHICH ARE PROPER, PARTICULARLY SINCE THE NATURE OF THE ITEMS INVOLVED WOULD PROBABLY ENTAIL AN INORDINATE EFFORT IN RELATION TO THE TOTAL AMOUNTS INVOLVED.

ACCORDINGLY, NO FURTHER ACTION WILL BE TAKEN IN THE MATTER BY THIS OFFICE WITH REGARD TO PAST ACTIVITIES, BUT STEPS SHOULD BE TAKEN TO PRECLUDE A RECURRENCE OF THESE PRACTICES.

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