B-164031(1), MAR 14, 1974

B-164031(1), MAR 14, 1974

1. FUNDS FOR GRANTS TO CONSTRUCT UNDERGRADUATE ACADEMIC FACILITIES, AUTHORIZED BY TITLE VII A OF THE HIGHER EDUCATION ACT OF 1965 AS AMENDED, FOR WHICH AN APPROPRIATION WAS MADE IN A CONTINUING RESOLUTION WHICH, AS AMENDED, TERMINATED JUNE 30, 1973, REMAIN AVAILABLE FOR OBLIGATION THROUGHOUT FISCAL YEAR 1973, NOTWITHSTANDING THE FACT THAT NO FUNDS FOR THE PROGRAM WERE INCLUDED IN A DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE APPROPRIATION BILL PASSED BY BOTH HOUSES PRIOR TO ENACTMENT OF THE RESOLUTION ALTHOUGH SUBSEQUENTLY VETOED BY THE PRESIDENT. 2. THE FAILURE TO INCLUDE FUNDS FOR THE UNDERGRADUATE CONSTRUCTION PROGRAM IN THREE SUPPLEMENTAL APPROPRIATION ACTS, ALTHOUGH OTHER HIGHER EDUCATION ACTIVITIES WERE INCLUDED, DOES NOT BY ITSELF AMOUNT TO A CONGRESSIONAL INTENT TO TERMINATE THE PROGRAM SINCE SUPPLEMENTAL ACTS ARE GENERALLY DESIGNED TO COVER ONLY FISCAL NEEDS ARISING SUBSEQUENT TO ENACTMENT OF THE BASE APPROPRIATION ACT. 3. THE APPLICABLE RATE OF FUNDING UNDER THE CONTINUING RESOLUTION FOR TITLE VII A PROGRAMS IS THE AMOUNT PROVIDED IN THE OFFICE OF EDUCATION AND RELATED AGENCIES APPROPRIATION ACT FOR 1972, SINCE NO FUNDS WERE INCLUDED IN EITHER THE ADMINISTRATION'S BUDGET REQUEST OR IN THE HOUSE AND SENATE- PASSED APPROPRIATION BILLS FOR 1973.

TO SECRETARY OF HEALTH, EDUCATION AND WELFARE:

THIS DECISION TO THE SECRETARY OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (THE DEPARTMENT) IS IN RESPONSE TO A REQUEST DATED FEBRUARY 11, 1974, BY THE DEPARTMENT'S GENERAL COUNSEL, JOHN B. RHINELANDER. ASKED FOR OUR VIEWS CONCERNING THE AVAILABILITY OF FUNDS APPROPRIATED BY A CONTINUING RESOLUTION (PUB. L. 92-334, 86 STAT. 402, APPROVED JULY 1, 1972) FOR FISCAL YEAR 1973, TO SUPPORT A PROGRAM OF GRANTS FOR THE CONSTRUCTION OF UNDERGRADUATE ACADEMIC FACILITIES AUTHORIZED BY TITLE VII, PART A OF THE HIGHER EDUCATION ACT OF 1965, AS AMENDED (THE ACT), PUB. L. 89-239, APPROVED NOVEMBER 8, 1965, 79 STAT. 1223, 20 U.S.C. 1009.

MR. RHINELANDER WAS NOT CERTAIN THAT THE PROGRAM IN QUESTION HAD SURVIVED A NUMBER OF SUBSEQUENT CONGRESSIONAL APPROPRIATION ACTIONS. HE ALSO SUGGESTS THE POSSIBILITY THAT THE PROGRAM WAS EXTINGUISHED EVEN BEFORE THE CONTINUING RESOLUTION WAS PASSED BECAUSE IT WAS NOT INCLUDED IN EITHER OF THE AGENCY'S TWO APPROPRIATION ACTS FOR FISCAL YEAR 1973, LATER VETOED BY THE PRESIDENT. THE DEPARTMENT IS SEEKING TO CLARIFY ITS POSITION IN ORDER TO RESPOND TO A COMPLAINT FILED BY THE STATE OF TEXAS AND SEVERAL OTHER STATES, SEEKING A COURT ORDER REQUIRING THE RELEASE OF FISCAL YEAR 1973 TITLE VII A FUNDS WHICH, IT IS ALLEGED, ARE AVAILABLE FOR EXPENDITURE. TEXAS, ET AL. V. WEINBERGER, ET AL., CIV. ACTION NO. A-73-CA-207, W.D. TEX.

THE TITLE VII A CONSTRUCTION PROGRAM WAS ADDED TO THE HIGHER EDUCATION ACT OF 1965, SUPRA, BY SECTION 161(A) OF THE EDUCATION AMENDMENTS OF 1972, PUB. L. 92-318, APPROVED JUNE 23, 1972, 86 STAT. 288, 20 U.S.C. 1132A TO 1132A-7. FOR THE MOST PART, THE NEW AMENDMENTS MERELY TRANSFERRED TO THE ACT AND EXTENDED EXISTING AUTHORITY TO MAKE GRANTS AND LOANS FOR CONSTRUCTION OF UNDERGRADUATE ACADEMIC FACILITIES WHICH AT THAT TIME WAS CONTAINED IN THE HIGHER EDUCATION FACILITIES ACT OF 1963 (HEFA). THE PROGRAM WAS CARRIED OUT DURING FISCAL YEAR 1972 UNDER AUTHORITY OF THE HEFA WITH FUNDS APPROPRIATED BY THE "OFFICE OF EDUCATION AND RELATED AGENCIES APPROPRIATION ACT, 1972," PUB. L. 92-48, APPROVED JULY 9, 1971, 85 STAT. 103.

SECTION 701(A) OF THE ACT, AS AMENDED, PROVIDES:

"THE COMMISSIONER SHALL CARRY OUT A PROGRAM OF GRANTS TO INSTITUTIONS OF HIGHER EDUCATION FOR THE CONSTRUCTION OF ACADEMIC FACILITIES IN ACCORDANCE WITH THIS PART."

SECTION 701(B) SPECIFIED THE AUTHORIZATION CEILINGS FOR FISCAL YEARS 1972 THROUGH 1975. SECTION 701(C) RESERVED 24% OF THE APPROPRIATION FOR ALLOTMENT FOR PUBLIC COMMUNITY COLLEGES AND TECHNICAL INSTITUTIONS, AND THEN PROVIDES:

"THE REMAINDER OF SUCH SUMS SHALL BE AVAILABLE FOR ALLOTMENT AMONG THE STATES UNDER SECTION 703." (SECTION 703 CONTAINS AN ALLOTMENT FORMULA.)

WHILE THE EDUCATION AMENDMENTS WERE IN THE PROCESS OF ENACTMENT, THE SENATE AND HOUSE WERE PUTTING THE FINISHING TOUCHES ON THEIR RESPECTIVE VERSIONS OF H.R. 15417, THE FIRST OF TWO ANNUAL APPROPRIATION BILLS FOR DEPARTMENT ACTIVITIES FOR FISCAL YEAR 1973. THE ADMINISTRATION HAD NOT REQUESTED FUNDS FOR THE UNDERGRADUATE FACILITIES CONSTRUCTION PROGRAM, AND NEITHER HOUSE INCLUDED SUCH FUNDS IN ITS REPORTED BILL. THIS WAS APPARENTLY NOT DUE TO A CONGRESSIONAL DESIRE TO "EXTINGUISH" THE PROGRAM. THE SENATE REPORT MENTIONS THAT H.R. 15417 OMITS A NUMBER OF EXISTING AUTHORITIES IN THE AREA OF HIGHER EDUCATION WHICH WOULD BE DEALT WITH IN THE EDUCATION AMENDMENTS OF 1972. THE REPORT STATES:

"THE CONFERENCE REPORT ON THIS BILL WAS ADOPTED BY THE SENATE ON MAY 24 AND THE HOUSE ON JUNE 8. IN VIEW OF THE LATENESS OF THIS LEGISLATION, THE COMMITTEE WAS NOT ABLE TO CONSIDER MOST OF THE $2.6 BILLION IN ESTIMATES ASSOCIATED WITH IT." SENATE REPT. NO. 92-894, JUNE 21, 1972, AT P. 83.

SIMILARLY, REPRESENTATIVE DANIEL FLOOD, CHAIRMAN OF THE HOUSE SUBCOMMITTEE ON APPROPRIATIONS FOR LABOR-HEALTH, EDUCATION, AND WELFARE (HEW), IN PRESENTING THE COMMITTEE BILL ON THE FLOOR STATED:

"BUT THIS BILL INCLUDES ONLY A PORTION OF THE 1973 APPROPRIATIONS FOR EDUCATION WHICH ARE EVENTUALLY GOING TO BE ENACTED. WE HAVE NOT YET CONSIDERED APPROPRIATIONS FOR PROGRAMS AUTHORIZED IN THE EDUCATION AMENDMENTS WHICH WE PASSED LAST THURSDAY, AND WHICH CONTAIN AUTHORIZATIONS FOR APPROPRIATIONS AMOUNTING TO OVER $6 BILLION FOR FISCAL 1973." CONG. REC. JUNE 15, 1972, AT P. H5673.

THE BILL (H.R. 15417) PASSED THE HOUSE ON JUNE 15, 1972, AND PASSED THE SENATE ON JUNE 28, 1972. THE CONFERENCE COMMITTEE VERSION WAS CLEARED FOR THE WHITE HOUSE ON AUGUST 10, 1972, AND WAS SUBSEQUENTLY VETOED BY THE PRESIDENT ON AUGUST 16, 1972. A SIMILAR BILL, H.R. 16654, WHICH ALSO CONTAINED NO FUNDS FOR THE TITLE VII A PROGRAM WAS "POCKET VETOED" BY THE PRESIDENT ON OCTOBER 27, 1972, AFTER SINE DIE ADJOURNMENT OF THE 92D CONGRESS. NEITHER VETO WAS OVERRIDEN BY THE CONGRESS.

FUNDS FOR THE DEPARTMENT'S CONSTRUCTION OF UNDERGRADUATE FACILITIES FOR FISCAL YEAR 1973 WERE ACTUALLY APPROPRIATED BY MEANS OF A JOINT CONTINUING RESOLUTION WHICH, WITH FOUR EXTENSIONS, EVENTUALLY COVERED THE ENTIRE FISCAL YEAR.

THE ORIGINAL CONTINUING RESOLUTION, PUB. L. 92-334, SUPRA, WAS ENACTED ON JULY 1, 1972, TO PROVIDE FUNDS FOR THE DEPARTMENT TO CONTINUE PROJECTS OR ACTIVITIES CONDUCTED IN FISCAL YEAR 1972, FOR THE PERIOD JULY 1 TO AUGUST 18, 1972. SECTION 106 OF THE RESOLUTION MAKES IT CLEAR THAT NO FUNDS COULD BE USED TO INITIATE ANY NEW PROJECTS OR ACTIVITIES OR TO RESUME ANY PROJECT AND ACTIVITIES WHICH WERE NOT BEING CONDUCTED IN FISCAL YEAR 1972. ALTHOUGH THE EDUCATION AMENDMENTS CONTAINING REVISED AUTHORITY FOR THE TITLE VII A PROGRAM WERE NOT ENACTED UNTIL JUNE 23, 1972, IT IS CLEAR THAT THE PROGRAM WAS ACTUALLY BEING OPERATED DURING FISCAL YEAR 1972 UNDER AUTHORITY OF THE HEFA AND WITH FUNDS APPROPRIATED PURSUANT TO THE OFFICE OF EDUCATION AND RELATED AGENCIES 1972 APPROPRIATION ACT, AS MENTIONED EARLIER. SECTION 101(D) OF THE RESOLUTION SPECIFICALLY PROVIDES FUNDING FOR THE UNDERGRADUATE CONSTRUCTION PROGRAM, AS FOLLOWS:

"SUCH AMOUNTS AS MAY BE NECESSARY FOR CONTINUING THE FOLLOWING ACTIVITIES, BUT AT A RATE FOR OPERATIONS NOT IN EXCESS OF THE CURRENT RATE

"ACTIVITIES FOR ***

"(4) *** GRANTS FOR CONSTRUCTION OF UNDERGRADUATE FACILITIES *** FOR WHICH PROVISION WAS MADE IN THE OFFICE OF EDUCATION APPROPRIATION ACT, 1972; ***."

THE PERIOD OF AVAILABILITY OF THE FUNDS APPROPRIATED BY THE JOINT RESOLUTION IS SPECIFIED IN SECTION 102 OF THE RESOLUTION. THEY SHALL REMAIN AVAILABLE UNTIL:

"(A) ENACTMENT INTO LAW OF AN APPROPRIATION FOR ANY PROJECT OR ACTIVITY PROVIDED FOR IN THIS JOINT RESOLUTION, OR (B) ENACTMENT OF THE APPLICABLE APPROPRIATION ACT BY BOTH HOUSES WITHOUT ANY PROVISION FOR SUCH PROJECT OR ACTIVITY, OR (C) AUGUST 18, 1972, WHICHEVER FIRST OCCURS."

THE AUGUST DATE, SPECIFIED IN (C) ABOVE, WAS SUBSEQUENTLY EXTENDED TO SEPTEMBER 30, 1972, BY PUB. L. 92-390, APPROVED AUGUST 18, 1972; TO OCTOBER 14, 1972 BY PUB. L. 92-446, APPROVED SEPTEMBER 29, 1972; TO FEBRUARY 28, 1973, BY PUB. L. 92-571, APPROVED OCTOBER 26, 1972; AND TO JUNE 30, 1973, BY PUB. L. 93-9, APPROVED MARCH 8, 1973. THERE WERE NO PERTINENT SUBSTANTIVE CHANGES RELATING TO THIS PROGRAM IN ANY OF THE EXTENSION ENACTMENTS, EXCEPT FOR THE SPECIFICATION OF A LATER TERMINATION DATE EACH TIME.

AS PREVIOUSLY MENTIONED, NO APPROPRIATION ACT PROVIDING FOR FUNDING THE SUBJECT PROGRAM DURING FISCAL YEAR 1973 WAS EVER ENACTED, SO SUBSECTION (A) OF SECTION 102 IS INAPPLICABLE.

MR. RHINELANDER'S LETTER PRESENTS THE DEPARTMENT'S CONTENTION THAT SUBSECTION (B) OF SECTION 102 IS THE GOVERNING PROVISION BECAUSE (1) BOTH THE HOUSE AND THE SENATE DID PASS APPROPRIATION BILLS WHICH DID NOT INCLUDE FUNDS FOR HEA TITLE VII A PROGRAMS (H.R. 15417 AND H.R. 16654, SUPRA) AND (2) THREE SUCCESSIVE SUPPLEMENTAL APPROPRIATION ACTS WERE PASSED DURING FISCAL YEAR 1973 BUT DID NOT INCLUDE FUNDS FOR THE CONSTRUCTION PROGRAM, ALTHOUGH SOME OTHER HIGHER EDUCATION ACTIVITIES WERE INCLUDED. (SEE SUPPLEMENTAL APPROPRIATIONS ACT, 1973, PUB. L. 92 607, 86 STAT. 1498, APPROVED OCTOBER 31, 1972; PUB. L. 93-25, 87 STAT. 25, APPROVED APRIL 27, 1973; AND SECOND SUPPLEMENTAL APPROPRIATIONS ACT, 1973, PUB. L. 93-50, 87 STAT. 99, APPROVED JULY 1, 1973.) IT WAS ON THIS BASIS THAT THE DEPARTMENT ASSUMED THAT THE CONSTRUCTION PROGRAM WAS "EXTINGUISHED" AND MADE NO FUNDS AVAILABLE FOR FISCAL YEAR 1973.

IN VIEW OF THE REASONS DISCLOSED BY THE PRESENT LEGISLATIVE HISTORY - AND SET FORTH ABOVE - FOR THE CONGRESS NOT INCLUDING A "HIGHER EDUCATION" APPROPRIATION IN THE TWO REGULAR AGENCY BILLS (H.R. 15417 AND H.R. 16654) PROVIDING ANNUAL APPROPRIATIONS FOR LABOR-HEW (WHICH WERE VETOED BY THE PRESIDENT), WE DO NOT BELIEVE THAT PASSAGE OF THESE BILLS BY BOTH HOUSES WITH SUCH EXCLUSION REQUIRES THE CONCLUSION IN THE INSTANT CASE THAT THE AUTHORITY CONTAINED IN THE CONTINUING RESOLUTION FOR THE PROGRAMS IN QUESTION WAS TERMINATED BY THE PROVISIONS OF SUBSECTION (B) OF SECTION 102. WE MIGHT POINT OUT THAT THE ORIGINAL CONTINUING RESOLUTION (PUB. L. 92-334) WITH ITS SPECIFIC INCLUSION OF THE UNDERGRADUATE CONSTRUCTION PROGRAM, WAS ENACTED AFTER BOTH HOUSES HAD INITIALLY PASSED THE DEPARTMENT'S FIRST 1973 APPROPRIATION BILL (H.R. 15417), BUT BEFORE THE CONFERENCE REPORT WAS ADOPTED.

MOREOVER, THE FACT THAT NONE OF THE SUPPLEMENTAL APPROPRIATIONS ACTS INCLUDED FUNDS FOR THE CONSTRUCTION PROGRAM DOES NOT, IN OUR JUDGMENT, BRING THE TERMINATION DATE OF SECTION 102(B) INTO OPERATION. SUPPLEMENTAL APPROPRIATION ACT, AS ITS NAME IMPLIES, IS GENERALLY DESIGNED TO TAKE CARE OF NEW OR ADDITIONAL NEEDS THAT AROSE SUBSEQUENT TO ENACTMENT OF THE DEFINITIVE APPROPRIATION ACT. IN THE CASE OF FISCAL YEAR 1973, THE APPROPRIATION ACT IS THE CONTINUING RESOLUTION, AS AMENDED, THERE BEING NO OTHER APPLICABLE APPROPRIATION ACT. SINCE THE RESOLUTION PROVIDED ADEQUATELY FOR FUNDING THE PROGRAM (AT THE 1972 APPROPRIATION LEVEL), THERE WAS NO REQUIREMENT FOR THE INCLUSION OF THIS PROGRAM IN ANY OF THE SUPPLEMENTAL ENACTMENTS.

WE CONCLUDE, THEREFORE, THAT SUBSECTION (C) OF SECTION 102 IS THE APPLICABLE PROVISION OF THE RESOLUTION GOVERNING THE PERIOD OF AVAILABILITY OF FUNDS PROVIDED THEREIN FOR THE UNDERGRADUATE FACILITIES CONSTRUCTION PROGRAM. THAT PERIOD, AS EXTENDED BY SUBSEQUENT RESOLUTIONS, IS JUNE 30, 1973, - THE CLOSE OF THE FISCAL YEAR. THE APPLICABLE RATE, AS PREVIOUSLY STATED, IS $43 MILLION, THE AMOUNT APPROPRIATED IN THE FISCAL YEAR 1972 OFFICE OF EDUCATION APPROPRIATION ACT.