B-214633, OCT 24, 1984, 64 COMP.GEN. 21

B-214633, OCT 24, 1984, 64 COMP.GEN. 21

APPROPRIATIONS - IMPOUNDING - LUMP-SUM APPROPRIATION - FULL AMOUNT AVAILABLE - ALLOCATION THE OFFICE OF REFUGEE RESETTLEMENT (ORR) DID NOT IMPOUND FUNDS UNDER THE FISCAL YEAR 1984 CONTINUING RESOLUTION SO LONG AS IT MADE AVAILABLE FOR OBLIGATION THE FULL $585,000,000 APPROPRIATED FOR THE REFUGEE AND ENTRANT ASSISTANCE ACCOUNT. THE CONTINUING RESOLUTION APPROPRIATED A LUMP-SUM AMOUNT FOR THE REFUGEE AND ENTRANT ASSISTANCE ACCOUNT, RATHER THAN SPECIFIC AMOUNTS FOR THE VARIOUS PROGRAMS FUNDED BY THAT ACCOUNT. ALLOCATIONS SPECIFIED IN THE CONGRESSIONAL COMMITTEE REPORTS WERE NOT BINDING ON THE ORR AND IT COULD ALLOCATE FUNDS DIFFERENTLY SO LONG AS IT DID NOT WITHHOLD ANY OF THE TOTAL $585,000,000 APPROPRIATIONS. APPROPRIATIONS - CONTINUING RESOLUTIONS - CURRENT RATE OF PROGRAM OPERATIONS THE OFFICE OF REFUGEE RESETTLEMENT, IN ALLOCATING FUNDS APPROPRIATED FOR REFUGEE AND ENTRANT ASSISTANCE UNDER THE FISCAL YEAR 1984 CONTINUING RESOLUTION, MISINTERPRETED EARLIER DECISIONS OF THIS OFFICE. "CURRENT RATE" AS USED IN CONTINUING RESOLUTIONS REFERS TO A DEFINITE SUM OF MONEY RATHER THAN A PROGRAM LEVEL. THE DIFFERENT RESULT REACHED IN B-197636, FEB. 25, 1980, WAS LIMITED TO THE UNUSUAL FACTS IN THAT CASE.

TO THE HONORABLE DON EDWARDS, HOUSE OF REPRESENTATIVES, OCTOBER 24, 1984:

THIS RESPONDS TO YOUR LETTER, DATED MARCH 29, 1984, REQUESTING THAT WE INVESTIGATE AN "UNLAWFUL RESCISSION" OF FUNDS BY THE DEPARTMENT OF HEALTH AND HUMAN SERVICES, OFFICE OF REFUGEE RESETTLEMENT (OFFICE). THE FUNDS IN QUESTION WERE APPROPRIATED FOR REFUGEE AND ENTRANT ACTIVITIES BY THE "JOINT RESOLUTION MAKING FURTHER CONTINUING APPROPRIATIONS FOR FISCAL YEAR 1984," PUB.L. NO. 98151 97 STAT. 964 (1983). YOU STATED IN YOUR LETTER THAT THE OFFICE HAS ALLOCATED $44,400,000 FOR ONE PARTICULAR REFUGEE AND ENTRANT ACTIVITY, NAMELY THE REFUGEE/ENTRANT SOCIAL SERVICES PROGRAM. THIS AMOUNT WAS CALCULATED IN ACCORD WITH THE OFFICE'S INTERPRETATION OF THE CONTINUING RESOLUTION; NAMELY, THAT SOCIAL SERVICES FUNDING SHOULD BE SET AT A LEVEL REFLECTING THE ANTICIPATED REFUGEE ARRIVAL RATE FOR 1984. SEE 49 FED.REG. 5383 (1984). ACCORDING TO YOUR LETTER, THIS LEVEL OF FUNDING IS LOWER THAN THE AMOUNT APPROPRIATED BY THE CONTINUING RESOLUTION. AS THE RESOLUTION PROVIDES THAT REFUGEE AND ENTRANT ACTIVITIES ARE TO BE CONTINUED AT THEIR "CURRENT RATE," SEC. 101(C), 97 STAT. 972, YOU CONTEND THAT THE 1984 FUNDING LEVEL FOR THIS PROGRAM IS EQUAL TO THE AMOUNT APPROPRIATED FOR THIS PROGRAM IN 1983, OR AS EXPRESSED IN MONETARY TERMS, $80 MILLION.

FOR THE REASONS INDICATED BELOW, WE CANNOT CONCLUDE THAT THE AMOUNT ALLOCATED BY THE OFFICE FOR THE SOCIAL SERVICES PROGRAM IS IMPROPER AND THUS CONSTITUTES AN UNLAWFUL RESCISSION. HOWEVER, WE ALSO CONCLUDE THAT THE MANNER IN WHICH THE OFFICE CALCULATED THE TOTAL AMOUNT APPROPRIATED FOR ALL REFUGEE AND ENTRANT ACTIVITIES BY THE 1984 RESOLUTION IS NOT IN ACCORD WITH DECISIONS RENDERED BY OUR OFFICE.

SECTION 101(C) OF THE CONTINUING RESOLUTION APPROPRIATED FOR REFUGEE AND ENTRANT ASSISTANCE ACTIVITIES SUCH AMOUNTS AS MAY BE NECESSARY FOR CONTINUING THESE ACTIVITIES AT THE "CURRENT RATE." WE HAVE CONSISTENTLY DEFINED THE TERM "CURRENT RATE" AS USED BY CONGRESS IN CONTINUING RESOLUTIONS TO REFER TO THE TOTAL AMOUNT OF FUNDS THAT WERE AVAILABLE FOR OBLIGATION FOR AN APPROPRIATION ACCOUNT IN THE PRECEDING FISCAL YEAR. SEE E.G., 58 COMP.GEN. 530 (1979). IN APPLYING THIS DEFINITION TO THOSE SITUATIONS, SUCH AS THE INSTANT CASE, IN WHICH THE FUNDS APPROPRIATED IN PRIOR YEARS WERE AVAILABLE FOR OBLIGATION FOR A 1 YEAR PERIOD, THE "CURRENT RATE" FOR THE SUBJECT APPROPRIATION ACCOUNT IS THE AMOUNT OF FUNDS APPROPRIATED FOR THE ACCOUNT IN THE PREVIOUS YEAR. SEE ID. AT 533. THEREFORE, AS CONGRESS APPROPRIATED $585,000,000 IN ANNUAL FUNDS FOR THE REFUGEE AND ENTRANT ASSISTANCE ACTIVITIES ACCOUNT IN 1983, THE CONTINUING RESOLUTION FOR 1984 PROVIDES THE SAME AMOUNT OF MONEY FOR THE EQUIVALENT 1984 APPROPRIATION ACCOUNT.

THE GAO HAS CONSISTENTLY HELD THAT CONTINUING RESOLUTIONS, LIKE REGULAR APPROPRIATION ACTS, APPROPRIATE MONEY AT THE APPROPRIATION ACCOUNT LEVEL RATHER THAN AT THE SUB-ACCOUNT LEVEL. THE REFUGEE/ENTRANT SOCIAL SERVICES PROGRAM, FOR WHICH YOU QUESTION THE AMOUNT ALLOCATED, IS A SUB-ACCOUNT OF THE APPROPRIATION ACCOUNT PROVIDING FUNDS FOR ALL REFUGEE AND ENTRANT ASSISTANCE ACTIVITIES. IN ALLOCATING THE $585,000,000 APPROPRIATION AMONG THE VARIOUS PROGRAMS WHICH MAKE UP THIS APPROPRIATION ACCOUNT, THE OFFICE IS NOT LEGALLY BOUND TO ADHERE TO THE AMOUNTS SPECIFIED FOR EACH PROGRAM IN THE APPLICABLE REPORTS OF THE HOUSE AND SENATE APPROPRIATION COMMITTEES. SEE 55 COMP.GEN. 307 (1975). THEREFORE, EVEN IF THE OFFICE DOES NOT SPEND FOR REFUGEE/ENTRANT SOCIAL SERVICES THE AMOUNT SPECIFIED IN COMMITTEE REPORTS, THERE WOULD BE NO IMPOUNDMENT SO LONG AS THE ENTIRE $585,000,000 WAS MADE AVAILABLE FOR OBLIGATION FOR OTHER REFUGEE PROGRAMS.

HAVING REACHED THIS CONCLUSION, WE NONETHELESS NOTE THAT THE OFFICE, IN CALCULATING THE AMOUNT AVAILABLE FOR THE REFUGEE/ENTRANT SOCIAL SERVICES PROGRAM, INTERPRETED THE CONTINUING RESOLUTION AS APPROPRIATING FUNDS TO SUPPORT A GIVEN PROGRAM LEVEL RATHER THAN A SPECIFIC SUM OF MONEY. THIS INTERPRETATION WAS APPARENTLY BASED ON OUR DECISION B-197636, FEBRUARY 25, 1980. THE OFFICE HAS MISINTERPRETED OUR DECISION. THAT DECISION CONCERNED THE LEVEL OF FUNDING APPROPRIATED FOR ASSISTANCE TO INDOCHINESE REFUGEES BY THE CONTINUING RESOLUTION FOR FISCAL YEAR 1980. THAT CONTINUING RESOLUTION, PUB.L. NO. 96-123, SEC. 101(C), 93 STAT. 924 (1979), PROVIDED SUCH AMOUNTS AS MAY BE NECESSARY FOR CONTINUING THIS PROGRAM AT THE "CURRENT RATE." WHILE RECOGNIZING THAT WE HAD REPEATEDLY STATED THAT AN APPROPRIATION TO MAINTAIN OPERATIONS AT THE "CURRENT RATE" REFERS TO AN AMOUNT OF MONEY, WE NEVERTHELESS CONCLUDED THAT THE AMOUNT OF FUNDS APPROPRIATED FOR INDOCHINESE REFUGEE PROGRAMS BY THE 1980 CONTINUING RESOLUTION WAS SUFFICIENT TO SUSTAIN A PROGRAM LEVEL OF 14,000 REFUGEES ARRIVING IN THE UNITED STATES EACH MONTH. WE REACHED THIS CONCLUSION BECAUSE OF THE "CLEAR LEGISLATIVE STATEMENTS FROM BOTH THE APPROPRIATION AND BUDGET COMMITTEES INDICATING AN INTENT TO CONTINUE THE PROGRAM AT A FUNDING LEVEL GREATER THAN THE AMOUNT OF FUNDS AVAILABLE FOR THE PROGRAM IN THE PREVIOUS YEARS."

THE OFFICE CONTENDS THAT OUR 1980 DECISION WAS NOT LIMITED TO THE UNIQUE CIRCUMSTANCE SURROUNDING THE ENACTMENT OF THE 1980 RESOLUTION BUT RATHER WAS INTENDED TO HAVE PROSPECTIVE APPLICATION AS WELL. RELYING ON THIS DECISION, THE OFFICE THEREFORE ARGUES THAT THE LEVEL OF FUNDING FOR THE REFUGEE/ENTRANT PROGRAMS, AS PROVIDED IN THE CONTINUING RESOLUTION FOR 1984, SHOULD ALSO BE CALCULATED ON THE BASIS OF THE MONEY NEEDED TO SUPPORT THE EXPECTED PROGRAM LEVELS FOR THESE ACTIVITIES IN 1984. UNDER THAT THEORY, THE OFFICE DETERMINED THAT THE APPROPRIATE FUNDING LEVEL FOR THE SOCIAL SERVICES PROGRAM WAS $44.4 MILLION, THAT BEING A SUM SUFFICIENT TO PROVIDE SERVICES FOR AN ANTICIPATED LOWER NUMBER OF REFUGEE ARRIVALS THIS YEAR.

WE DISAGREE WITH THIS INTERPRETATION OF OUR 1980 DECISION. CONTRARY TO THE VIEWS OF THE OFFICE, THE 1980 OPINION WAS LIMITED TO ITS PARTICULAR FACTS. AS WE HAVE SAID ABOVE, OUR DECISION IN THAT CASE TO DIVERGE FROM OUR NORMAL INTERPRETATION OF "CURRENT RATE" WAS BASED ON THE STRONG, CLEAR EXPRESSION OF CONGRESSIONAL INTENT THAT THE PARTICULAR ACTIVITIES IN QUESTION BE FUNDED AT A SPECIFIED PROGRAM LEVEL.

ON THE OTHER HAND, THE LEGISLATIVE HISTORY OF THE 1984 CONTINUING RESOLUTION DOES NOT CONTAIN ANY LANGUAGE INDICATING THAT CONGRESS INTENDED THAT THE CURRENT RATE FOR THE REFUGEE/ENTRANT SOCIAL SERVICES PROGRAM OR ANY OF THE OTHER REFUGEE ASSISTANCE ACTIVITIES SHOULD BE CALCULATED IN A MANNER REFLECTING THE PROGRAM LEVELS FOR THESE ACTIVITIES. IN FACT, THE ONLY PERTINENT LEGISLATIVE HISTORY SUGGESTS THAT OFFICIALS OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES, OFFICE OF REFUGEE RESETTLEMENT WERE AWARE THAT THE "CURRENT RATE" FOR THESE PROGRAMS WAS TO BE CALCULATED IN ACCORDANCE WITH OUR NORMAL DEFINITION FOR THIS TERM. SEE DEPARTMENTS OF LABOR, HEALTH AND HUMAN SERVICES, EDUCATION, AND RELATED AGENCIES APPROPRIATIONS FOR 1984: HEARINGS BEFORE THE SUBCOMMITTEE ON THE DEPARTMENTS OF LABOR, HEALTH AND HUMAN SERVICES, EDUCATION, AND RELATED AGENCIES OF THE HOUSE COMMITTEE ON APPROPRIATIONS, 98TH CONG., 1ST SESS., PART 5, 604, 624 (1983) (COMMENTS OF PHILLIP W. HAWKES, DIRECTOR OF OFFICE OF REFUGEE RESETTLEMENT IN RESPONSE TO QUESTIONS POSED BY CHAIRMAN NATCHER AND REPRESENTATIVE ROYBAL CONCERNING THE FUNDING LEVEL FOR THE SUBJECT PROGRAM IF OPERATING AT ITS CURRENT RATE IN 1984).

THEREFORE, WE CONCLUDE THAT THERE WAS NO IMPOUNDMENT OF REFUGEE AND ENTRANT ASSISTANCE FUNDS FOR FISCAL YEAR 1984 SO LONG AS THE OFFICE OF REFUGEE RESETTLEMENT MADE THE FULL $585,000,000 APPROPRIATED FOR THE LUMP- SUM APPROPRIATION ACCOUNT AVAILABLE FOR OBLIGATION. ON THE OTHER HAND, THE MANNER IN WHICH THE OFFICE CALCULATED ITS TOTAL APPROPRIATION AND THE AMOUNT ALLOCATED FOR THE REFUGEE/ENTRANT SOCIAL SERVICES PROGRAM IS NOT CONSISTENT WITH OUR DECISIONS.