In re Authority to Continue Domestic Food Programs Under Continuing Resolution

• Decision Date: 30 September 1975
• Docket Number: B-176994
• Citation: 55 Comp.Gen. 289
• Parties: IN THE MATTER OF THE AUTHORITY TO CONTINUE DOMESTIC FOOD PROGRAMS UNDER CONTINUING RESOLUTION
• Court: Comptroller General of the United States

55 Comp.Gen. 289

IN THE MATTER OF THE AUTHORITY TO CONTINUE DOMESTIC FOOD PROGRAMS UNDER CONTINUING RESOLUTION

No. B-176994

Comptroller General of the United States

September 30, 1975

Agriculture department - domestic food programs - authority to continue continuing resolution appropriation of funds in continuing resolution for fiscal year 1976 for domestic food programs established under national school lunch act and child nutrition act confers upon department of agriculture necessary authority to continue such programs until termination of continuing resolution, notwithstanding expiration of funding authorization in enabling legislation on September 30, 1975. Appropriations - continuing resolutions - availability of funds - in absence of regular appropriations proviso in section of continuing resolution which suspends effectiveness of provisions in appropriation acts making availability of appropriations contingent upon enactment of authorizing legislation, was intended to apply only to appropriation bills prior to their final enactment. Thus, enactment of appropriation act with such contingency provision will supersede continuing resolution and will suspend availability of funds pending enactment of necessary legislative authority.

This decision to the secretary of agriculture is in response to a request dated September 15, 1975, from the general counsel department of agriculture (DOA), concerning the authority of DOA to continue three domestic food programs after September 30, 1975, in light of the circumstances set forth below. The programs, all administered by doa, are

(1) school breakfast program, section 4 of the child nutrition act of 1966, as amended, 42 U.S.C. 1773. This program provides grants to states to provide breakfasts free or at a reduced price to needy school children.

(2) special food service program for children, section 13 of the national school lunch act, as amended, 42 U.S.C. 1761. Established in 1968, this program authorizes grants and other assistance to states to provide nonprofit food service programs for needy and handicapped children in "service institutions" as defined in the act.

(3) special supplemental food program (known as "wic"-- women, infants, and children), section 17 of the child nutrition act of 1966, as amended, 42 U.S.C 1786. WIC was established in 1972 to aid local health or welfare agencies or private nonprofit agencies, and indian tribes and organizations, in making supplemental foods available to pregnant or lactating women and to infants determined to be nutritional risks.

Funds for the three programs were authorized in the respective sections of the enabling legislation and have been appropriated in the annual DOA appropriation acts. Without legislative action in the first session of the 94th congress the authorization for all three programs would have expired on June 30, 1975. Legislation, H.R. 4222, was introduced early in the session to extend the programs, passed both the house and the senate, and was reported out of conference on July 30 (h.R. Report no. 94-347). However, on September 5 the senate voted to recommit the conference report. Cong. Rec., September 5, 1975 (daily ed.), s15394-99. Addition, the agriculture and related agencies appropriate act for 1976, H.R. 8561, is also presently under consideration. The bill passed the house on July 14, passed the senate on July 25, and is now ready for conference.

On May 2, 1975, congress extended the special food service program to September 30, 1975, by public law 94-20, 89 Stat. 82. This was done to enable proper planning by sponsoring agencies for the summer program without fear of having the program expire midway in the summer. S. Report no. 94-57, 94th cong., 1st Sess. 2 (1975). Similarly, WIC was extended to the same date on May 28, 1975, by public law 94-28, 89 Stat. 96. This was deemed necessary because the program faced interruption if states did not receive their letters of credit containing WIC funds by approximately June 1. S. Report no. 94-158, 94th cong., 1st Sess. 3 (1975). No special legislation was enacted to extend the school breakfast program, but it was specifically included in the joint resolution making continuing appropriations for fiscal year 1976 ("continuing resolution"), public law 94-41 (June 27, 1975) Sec. 101(e) (13th unnumbered paragraph), 89 Stat. 225, 229.

Doa expresses doubt that authority would exist to continue the special food service and WIC program beyond September 30, 1975, if H.R. 4222 or similar legislation is not enacted by that date. DOA further believes this result is not affected by the continuing resolution. The department's position is summarized in its September 15 letter as follows:

We have concluded, however, that there is no basis in public law 94 41, the joint resolution, for considering either the special food service program or the WIC program as having been continued beyond September 30, 1975, despite the fact that the resolution does provide funding authority for them in section 101(e) and (F). We reach this result because shortly before the resolution was passed, legislation specifically extending these two programs to September 30, 1975 was adopted; the senate committee report on the resolution, while two programs; and, the senate committee report on the resolution, while mentioned the school breakfast program, is silent with respect to these other two programs; and, there is language with respect to the WIC program in section 101(f) of the resolution which excepts section 17(b) (the funding provision of the child nutrition act.

Doa further believes that the enactment of H.R. 8561 prior to H.R. 4222 would cause termination of all three programs because H.R. 8561 (title III, pages 56 and 57) expressly makes the availability of appropriations for the three programs contingent upon the enactment of "necessary legislative authority."

If neither the authorizing legislation nor the appropriation act is enacted by September 30, it is necessary to consider the effect of the continuing resolution in order to determine the status of the programs in question. Pertinent provisions of public law 94-41 are set forth below:

The following sums are appropriated out of any money in the treasury not otherwise appropriated * * *:

(section 101(e)) such amounts as May be necessary for continuing the following activities, but at a rate for operations not in excess of the current rate unless otherwise provided specifically in this subsection * *

The following activities for which provision was made in the agriculture- environmental and consumer protection appropriation act, 1975: * * *

Food programs under section 32 of the act of August 24, 1935, and section 416 of the agricultural act of 1949, as amended, including cost of-living increases mandated by law and the school breakfast program; * * *.

(section 101(f)) such amounts as May be necessary to permit payments and assistance mandated by law for the following activities which were conducted in fiscal year 1975-- * * *

Activities under the food stamp act, the child nutrition act, and the school lunch act, as amended, except for section 17(b) of the child nutrition act of 1966;

(section 102) appropriations and funds made available and authority granted pursuant to this joint resolution shall be available from July 1, 1975, and 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) sine die adjournment of the first session of the ninety-fourth congress, whichever first occurs.

We have recognized that congress May appropriate funds in excess of a cost limitation contained in the original authorization act and that the agency is thereby authorized to continue the program at the higher level. 36 Comp.Gen. 240 (1956). By the same token, it would seem that the appropriation of funds for a program whose...