B-201898, FEBRUARY 18, 1981, 60 COMP.GEN. 263

B-201898, FEBRUARY 18, 1981, 60 COMP.GEN. 263

APPROPRIATIONS - CONTINUING RESOLUTIONS - AVAILABILITY OF FUNDS - DEPARTMENT OF EDUCATION - HIGHER EDUCATION ACT - LOANS/INSURANCE DEPARTMENT OF EDUCATION MUST MAKE AVAILABLE $25 MILLION IN LOAN FUNDS UNDER TITLE VII OF HIGHER EDUCATION ACT. PROVISION IN CONTINUING RESOLUTION FOR FISCAL YEAR 1981 (PUB. L. NO. 96-536) THAT WHEN APPROPRIATION HAS PASSED HOUSE ONLY ON OCTOBER 1, 1980, ACTIVITIES IN BILL SHALL BE CONTINUED UNDER AUTHORITIES AND CONDITIONS IN 1980 APPROPRIATION ACT, DOES NOT PREVENT FUNDING UNDER RESOLUTION OF ACTIVITY NOT FUNDED BY 1980 ACT. RESOLUTION IN QUESTION DOES NOT PROHIBIT FUNDING OF EDUCATION DEPARTMENT ACTIVITIES NOT FUNDED IN PRIOR YEAR. LEGISLATIVE HISTORY SUPPORTS CONCLUSION.

MATTER OF: AVAILABILITY OF HIGHER EDUCATION ACT LOAN FUNDS UNDER CONTINUING RESOLUTION, FEBRUARY 18, 1981:

THE FORMER GENERAL COUNSEL TO THE DEPARTMENT OF EDUCATION HAS REQUESTED OUR OPINION ON WHETHER THE SECOND CONTINUING RESOLUTION FOR FISCAL YEAR 1981, PUB. L. NO. 96-536, 94 STAT. 3166, REQUIRES THE DEPARTMENT TO MAKE LOAN FUNDS AVAILABLE UNDER TITLE VII OF THE HIGHER EDUCATION ACT OF 1965, AS AMENDED, PUB. L. NO. 96-374, 94 STAT. 1475 (TO BE CLASSIFIED TO 20 U.S.C. ! 1132D). THE FORMER GENERAL COUNSEL STATES IN HER LETTER THAT BECAUSE THE CONGRESS DID NOT MAKE ANY LOAN FUNDS AVAILABLE FOR THIS PROGRAM DURING FISCAL YEAR 1980, THERE IS SOME DOUBT WHETHER FUNDS ARE AVAILABLE UNDER THE CONTINUING RESOLUTION. FOR THE REASONS INDICATED BELOW WE CONCLUDE THAT THE CONGRESS HAS RELEASED FUNDS FOR TITLE VII LOANS UNDER THE CONTINUING RESOLUTION AND THAT THE DEPARTMENT MUST MAKE THESE FUNDS AVAILABLE FOR LOANS.

SECTION 731 OF THE HIGHER EDUCATION ACT, AS AMENDED BY PUB. L. NO. 96-374, STATES:

(A) FROM THE SUMS AVAILABLE FOR THIS PART, THE SECRETARY (OF EDUCATION) SHALL MAKE AND INSURE LOANS TO INSTITUTIONS OF HIGHER EDUCATION AND TO HIGHER EDUCATION BUILDING AGENCIES FOR PROGRAMS CONSISTENT WITH THE PURPOSES OF THIS TITLE. * * *

SECTION 733 OF THE ACT, 20 U.S.C. 1132D-2, AS AMENDED, STATES:

(A) THERE IS CREATED WITHIN THE TREASURY A REVOLVING LOAN FUND FOR THE PURPOSE OF MAKING AND INSURING LOANS UNDER THIS PART (HEREAFTER CALLED THE "FUND") WHICH SHALL BE AVAILABLE TO THE SECRETARY WITHOUT FISCAL YEAR LIMITATION. THE TOTAL OF ANY LOANS MADE FROM THE FUND IN AND FISCAL YEAR SHALL NOT EXCEED LIMITATIONS SPECIFIED IN APPROPRIATIONS ACTS.

UNDER THESE PROVISIONS, THE SECRETARY OF EDUCATION IS TO MAKE OR INSURE LOANS, USING FUNDS FROM THE REVOLVING FUND. HOWEVER, IN ANY FISCAL YEAR THE SECRETARY MAY USE THE LOAN ONLY TO THE EXTENT PROVIDED BY THE CONGRESS IN AN APPROPRIATION ACT. SHOULD THE CONGRESS NOT SPECIFY ANY AMOUNT IN AN APPROPRIATION ACT, THEN NO FUNDS ARE RELEASED FROM THE FUND FOR THAT FISCAL YEAR AND THE SECRETARY CANNOT MAKE ANY LOANS. THE FORMER GENERAL COUNSEL'S LETTER INDICATES THAT THE CONGRESS HAD NOT RELEASED MONEY FROM THE LOAN FUND SINCE FISCAL YEAR 1978.

THE CONGRESS HAS NOT YET ENACTED A REGULAR APPROPRIATION ACT FOR THE DEPARTMENT OF EDUCATION FOR THE CURRENT FISCAL YEAR. RATHER, THE DEPARTMENT IS OPERATING UNDER THE TERMS OF THE "JOINT RESOLUTION MAKING FURTHER CONTINUING APPROPRIATIONS FOR THE FISCAL YEAR 1981, AND FOR OTHER PURPOSES," PUB. L. NO. 96-536, SO-CALLED CONTINUING RESOLUTION.

SUBSECTION 101(A) OF THE RESOLUTION APPROPRIATES--

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

DEPARTMENTS OF LABOR, HEALTH AND HUMAN SERVICES, AND EDUCATION, AND RELATED AGENCIES APPROPRIATION ACT, 1981 * * * .

(4) WHENEVER AN ACT LISTED IN THIS SUBSECTION HAS BEEN PASSED BY ONLY THE HOUSE AS OF OCTOBER 1, 1980, THE PERTINENT PROJECT OR ACTIVITY SHALL BE CONTINUED UNDER THE APPROPRIATION, FUND, OR AUTHORITY GRANTED BY THE HOUSE, AT A RATE FOR OPERATIONS NOT EXCEEDING THE RATE PERMITTED BY THE ACTION OF THE HOUSE, AND UNDER THE AUTHORITY AND CONDITIONS PROVIDED IN APPLICABLE APPROPRIATION ACTS FOR THE FISCAL YEAR 1980 * * * .

H.R. 7998, 96TH CONGRESS, WHICH IS DENOMINATED AS THE "DEPARTMENTS OF LABOR, HEALTH AND HUMAN SERVICES, AND EDUCATION, AND RELATED AGENCIES APPROPRIATION ACT, 1981" (APPROPRIATION ACT), AS IT PASSED THE HOUSE OF REPRESENTATIVES, CONTAINED THE FOLLOWING PROVISO:

PROVIDED, THAT $25,000,000, IS HEREBY RELEASED FROM AMOUNTS AVAILABLE IN THE HIGHER EDUCATION LOAN FUND FOR GRADUATE FACILITIES. NOTWITHSTANDING THE CAMPUS LOAN LIMITS CONTAINED IN THE REGULATIONS, THE SECRETARY MAY, IN CASES OF SPECIAL AND CRITICAL NEED, PROVIDE FUNDS IN EXCESS OF THE CAMPUS LOAN LIMIT.

THIS PROVISO, IF H.R. 7998 WERE ENACTED, WOULD AUTHORIZE THE SECRETARY TO MAKE LOANS FROM THE REVOLVING FUND IN FISCAL YEAR 1981 IN THE TOTAL AMOUNT OF $25 MILLION.

PARAGRAPH (1) OF SUBSECTION 101(A) OF THE RESOLUTION, QUOTED ABOVE, MAKES FUNDS AVAILABLE FOR EACH PROJECT OR ACTIVITY FOR WHICH AN APPROPRIATION, FUND, OR OTHER AUTHORITY WOULD BE PROVIDED BY THE APPROPRIATION ACT. SINCE THE APPROPRIATION ACT WOULD HAVE PROVIDED AUTHORITY TO THE SECRETARY OF EDUCATION TO USE MONEY FROM THE LOAN FUND, THIS SAME AUTHORITY IS AVAILABLE UNDER THE CONTINUING RESOLUTION.

THE SECOND, THIRD AND FOURTH PARAGRAPHS OF SUBSECTION 101(A) ESTABLISH THE AMOUNTS, AND ANY CONDITIONS ON AVAILABILITY, OF THE APPROPRIATION MADE OR THE AUTHORITY GRANTED BY PARAGRAPH (1). PARAGRAPH (4), QUOTED ABOVE, APPLIES WHENEVER THE REFERENCED APPROPRIATION ACT HAD PASSED ONLY THE HOUSE OF REPRESENTATIVES AS OF OCTOBER 1, 1980, AS IS THE CASE HERE. UNDER PARAGRAPH (4), THE PROJECT ACTIVITY IN QUESTION SHALL OPERATE, FIRST, UNDER THE APPROPRIATION, FUND, OR AUTHORITY PROVIDED BY THE HOUSE, AT A RATE FOR OPERATIONS NOT EXCEEDING THE RATE PROVIDED BY THE HOUSE, AND, SECOND, UNDER THE AUTHORITY AND CONDITIONS PROVIDED IN THE CORRESPONDING APPROPRIATION ACT FOR FISCAL YEAR 1980.

THUS, UNDER THE FIRST PROVISION OF PARAGRAPH (4), THE AMOUNT OF FUNDS AVAILABLE FROM THE REVOLVING LOAN FUND IS NOT TO EXCEED THE AMOUNT SPECIFIED IN THE HOUSE-PASSED APPROPRIATION ACT; THAT IS, $25 MILLION. THE SECOND PROVISION IN PARAGRAPH (4)-- THAT THE ACTIVITY OPERATE UNDER THE AUTHORITY AND CONDITIONS PROVIDED IN THE FISCAL YEAR 1980 APPROPRIATION ACT-- APPLIES ONLY TO PROGRAM PROVISIONS; THAT IS, PROVISIONS IN THE 1980 ACT CONTROLLING THE PURPOSES FOR WHICH THE APPROPRIATION, FUND, OR AUTHORITY IS, OR IS NOT, AVAILABLE. SEE PERIOD OF AVAILABILITY OF FOREIGN ASSISTANCE LOAN FUNDS APPROPRIATED BY FISCAL YEAR 1980 CONTINUING RESOLUTIONS, B-199966, SEPTEMBER 10, 1980. IT DOES NOT AFFECT QUESTIONS OF WHETHER OR NOT AN APPROPRIATION IS MADE, THE AMOUNT OF THE APPROPRIATION, OR ITS PERIOD OF AVAILABILITY.

THE FORMER GENERAL COUNSEL STATES THAT IT COULD BE ARGUED THAT, BECAUSE FUNDS FOR THE LOAN PROGRAM WERE NOT AVAILABLE IN FISCAL YEAR 1980, THE PROGRAM CANNOT BE CONTINUED IN THE PRESENT YEAR AND THUS FUNDS ARE NOT AVAILABLE FOR LOANS UNDER THE CONTINUING RESOLUTION. HOWEVER, AS WE HAVE INDICATED, PARAGRAPH 101(A)(1) MAKES FUNDS AVAILABLE FOR ALL PROJECTS OR ACTIVITIES WHICH WOULD HAVE BEEN FUNDED BY THE APPROPRIATION ACT HAD IT BECOME LAW. THERE IS NOTHING IN SUBSECTION 101(A) WHICH WOULD LIMIT FUNDING TO PROGRAMS WHICH WERE FUNDED IN FISCAL YEAR 1980.

FURTHER, THE RESOLUTION CONTAINS NO GENERAL PROHIBITION AGAINST USING FUNDS FOR PROJECTS NOT FUNDED DURING THE PREVIOUS FISCAL YEAR. SUCH A PROVISION WAS INCLUDED IN CONTINUING RESOLUTIONS IN PRIOR YEARS, AND WAS DELIBERATELY OMITTED FROM THE FIRST CONTINUING RESOLUTION FOR FISCAL YEAR 1981. H.R. REP. NO. 96-1443 16 (1980). RATHER THAN INCLUDING SUCH A GENERAL PROHIBITION, THE CONGRESS CHOSE TO PROHIBIT NEW PROGRAMS ONLY FOR ACTIVITIES FUNDED UNDER SUBSECTION 101(D) OF THE RESOLUTION.

FINALLY, THE LEGISLATIVE HISTORY OF THE RESOLUTION INDICATES A CONGRESSIONAL INTENT THAT THE TITLE VII LOAN PROGRAM BE FUNDED IN FISCAL YEAR 1981. FOR EXAMPLE, IN DISCUSSING THE CONTINUING RESOLUTION, REPRESENTATIVE CONTE, RANKING MINORITY MEMBER OF THE HOUSE COMMITTEE ON APPROPRIATIONS STATED:

THE RELEASE OF LOAN FUNDS FOR GRADUATE ACADEMIC FACILITIES UNDER THE JOINT RESOLUTION IS PROVIDED IN ACCORDANCE WITH THE LEGISLATIVE HISTORY OF H.R. 7998, AND THE FUNDS ARE INTENDED TO BE IMMEDIATELY AVAILABLE. 126 CONG.REC. H11711 (DAILY ED. DECEMBER 3, 1980).

SIMILARLY, REPRESENTATIVE NATCHER, CHAIRMAN OF THE APPROPRIATIONS SUBCOMMITTEE FOR THE DEPARTMENT OF EDUCATION STATED:

THE 1981 APPROPRIATION BILL AS PASSED BY THE HOUSE AUTHORIZES THE RELEASE OF $25,000,000 FROM AMOUNTS AVAILABLE IN THE HIGHER EDUCATION LOAN FUND FOR GRADUATE FACILITIES. ACCORDINGLY, IT FOLLOWS WITHOUT QUESTION THAT THE CONTINUING RESOLUTION PROVIDES THAT SAME AUTHORITY IN THE MANNER PROVIDED BY THE HOUSE-PASSED BILL, 126 CONG.REC. H11717 (DAILY ED. DECEMBER 3, 1980).

FINALLY, SENATOR EAGLETON INCLUDED THE FOLLOWING STATEMENT IN THE CONGRESSIONAL RECORD:

MR. PRESIDENT, THE RELEASE OF THE LOAN FUNDS FOR GRADUATE ACADEMIC FACILITIES AS CONTAINED IN THE CONTINUING RESOLUTION FOR SPECIAL AND CRITICAL NEEDS WILL HAVE NO IMPACT ON THE FISCAL YEAR 1981 BUDGET. THEY ARE RELEASED IN ACCORDANCE WITH THE LEGISLATIVE HISTORY OF H.R. 7998, AND ARE INTENDED TO BE IMMEDIATELY AVAILABLE. * * * 126 CONG.REC. S16686 (DAILY ED. DECEMBER 16, 1980).

WE THEREFORE CONCLUDE THAT THE CONTINUING RESOLUTION RELEASES $25 MILLION FROM THE TITLE VII REVOLVING LOAN FUND. UNDER THE MANDATE OF SECTION 731 OF THE HIGHER EDUCATION ACT, THE SECRETARY IS REQUIRED TO MAKE $25 MILLION AVAILABLE FOR LOANS UNDER TITLE VII.

EMPLOYEES OF THE DEPARTMENT OF EDUCATION HAVE INFORMALLY TAKEN THE POSITION THAT THE SECRETARY CANNOT MAKE FUNDS AVAILABLE FOR LOANS FROM THE REVOLVING FUND UNTIL FINAL REGULATIONS IMPLEMENTING THE LOAN PROGRAM HAVE BEEN PROMULGATED. THEY RELY ON 20 U.S.C. 1232(G) TO SUPPORT THEIR POSITION. THAT PROVISION REQUIRES THE DEPARTMENT TO PROMULGATE FINAL REGULATIONS FOR CERTAIN "APPLICABLE PROGRAMS."

WITHOUT NECESSARILY AGREEING THAT 20 U.S.C. 1232(G) APPLIES TO THIS LOAN PROGRAM, WE CAN SEE NO STATUTORY CONNECTION BETWEEN A REQUIREMENT TO ISSUE REGULATIONS FOR THE FUTURE IMPLEMENTATION OF A PROGRAM AND THE SECRETARY'S AUTHORITY TO USE THE $25 MILLION RELEASED FROM THE FUND PRIOR TO THE PROMULGATION OF THOSE REGULATIONS. CONSIDERING THE PURPOSES FOR WHICH THE CONGRESS RELEASED THESE FUNDS, AS SHOWN IN THE LEGISLATIVE HISTORY, THIS OFFICE WOULD NOT OBJECT TO A DECISION BY THE SECRETARY TO MAKE LOAN FUNDS AVAILABLE BEFORE ISSUANCE OF REGULATIONS.