oversight

[Comments on Whether Section 108 of the Department of the Interior and Related Agencies Appropriations Act, 1997 Is Permanent Law]

Published by the Government Accountability Office on 1997-08-20.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

      United States
GAO   General Accounting Office
      Washington, D.C. 20548

      Office of the General Counsel


      B-277719


      August 20, 1997


      Congressional Requesters

      This responds to your July 29, 1997, letter asking whether section 108 of the
      Department of the Interior and Related Agencies Appropriations Act, 1997, is
      permanent law or expires at the end of fiscal year 1997.1 Section 108 of the Interior
      Appropriations Act states that:

             "No final rule or regulation of any agency of the Federal Government
             pertaining to the recognition, management, or validity of a right-of-way
             pursuant to Revised Statute 2477 (43 U.S.C. 932) shall take effect
             unless expressly authorized by an Act of Congress subsequent to the
             date of enactment of this Act." 110 Stat. 3009-200.

      For the reasons discussed below, we believe section 108 is permanent law.

      Discussion

      Since an appropriation act is made for a particular fiscal year, the starting
      presumption is that everything contained in the act is effective only for the year
      covered. 31 U.S.C ยง 1301(c)(2)(1994). For this reason, a provision in an
      appropriation act will be considered to be permanent only if the statutory language
      or the nature of the provision makes it clear that Congress intended the provision
      to be permanent. 65 Comp. Gen. 588, 589 (1986).

      Permanency is indicated most clearly when the provision in the appropriation act
      uses words of futurity. While "hereafter" is a common "word of futurity," we have
      afforded language such as "after the date of approval of this act" the same
      treatment. E.g., 36 Comp. Gen 434, 436 (1956). The language "subsequent to the
      date of enactment of this Act" found in section 108 of the fiscal year 1997 Interior
      Appropriations Act is of the same character.



      1
       The Department of the Interior and Related Agencies Appropriations Act, 1997, is
      contained in section 101(d) of the Omnibus Consolidated Appropriations Act, 1997,
      Pub. L. No. 104-208, 110 Stat. 3009, 3009-181(1996).

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The precise location of the words of futurity can be important and can determine
whether or not a provision is permanent. Cf. B-228838, Sept. 16, 1987 (words of
futurity in a proviso of a section did not make the entire section permanent). In the
case of section 108, the location of the phrase "subsequent to the date of enactment
of this Act" presents two possible interpretations. On the one hand, "subsequent to
the date of enactment of this Act" could apply only to the immediately preceding
phrase "Act of Congress" and thereby describe only the period of enactment for the
authorizing "Act of Congress" that must occur for an agency rule or regulation on
R.S. 2477 rights-of-way to take effect.2 Under this reading, the phrase "subsequent
to the date of enactment" means that the agency rule can become effective only if it
is expressly authorized by a new, not a previous, Act of Congress. This limitation
on agency rulemaking would expire at the end of fiscal year 1997.

Alternatively, "subsequent to the date of enactment of this Act" could apply to all of
section 108 and thereby describe the time period applicable to the limitation on
agency rulemaking on R.S. 2477 rights-of-way. Under this reading, the phrase
"subsequent to the date of enactment of this Act" means that the requirement for an
express authorization by an Act of Congress before the agency rule can become
effective is a permanent requirement beginning with the enactment of the fiscal year
1997 appropriation. We believe the latter interpretation is the meaning best
ascribed to section 108 based on its legislative history and purpose.




2
 Section 8 of the Mining Act of 1866 stated that "the right of way for the
construction of highways over public lands, not reserved for public uses is hereby
granted." That section was codified as section 2477 of the Revised Statutes, and has
been commonly referred to since then as "R.S. 2477." Section 706 of the Federal
Land Policy and Management Act of 1976 (FLPMA), Pub. L. No. 94-579, 90 Stat.
2793, repealed R.S. 2477 but section 701 provided that FLPMA did not terminate any
land use, including rights-of-way, existing on October 21, 1976. FLPMA did not
provide a time limitation on filing claims for pre-1976 rights-of-way. The rules and
regulations that are the subject of section 108 are proposals to change how R.S.
2477 claims are processed.

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Language similar to that found in section 108 first appeared as section 349(a)(1) of
the National Highway System Designation Act of 1995, Pub. L. No. 104-59, 109 Stat.
568, 617-618 (1995). Section 349(a)(1) states:

         "(a) MORATORIUM. -

             "(1) IN GENERAL. - Notwithstanding any other provision of law,
         no agency of the Federal Government may take any action to prepare,
         promulgate, or implement any rule or regulation addressing rights-of-
         way authorized pursuant to section 2477 of the Revised Statutes (43
         U.S.C. 932), as such section was in effect before October 21, 1976."

As indicated by the heading of subsection (a) of section 349, paragraph (1) was a
moratorium on agency actions on rules and regulations regarding R.S. 2477 rights-of-
way. Paragraph (2) provided that the moratorium would be effective through
September 30, 1996.3 The purpose of the moratorium was to delay regulations
proposed by the Secretary of the Interior so that the Congress and the states could
address concerns over proposed changes to the process for recognizing state and
local government claims for rights-of-way across federal lands granted pursuant to
R.S. 2477. 141 Cong. Rec. S8924-8925 (daily ed. June 22, 1995)(statements of Sens.
Stevens and Murkowski).4

Before the moratorium expired, the Senate Committee on Energy and Natural
Resources considered S. 1425, a bill to "recognize the validity of rights-of-way


3
 Your letter refers to another restriction running through fiscal year 1996. Section
110 of the Department of the Interior and Related Agencies Appropriations Act,
1996, as contained in section 101(c) of the Omnibus Consolidated Rescissions and
Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321, 1321-156, provided
that none of the funds appropriated or otherwise made available by the Act could
be used by the Secretary of the Interior to develop, promulgate, and implement a
rule concerning R.S. 2477 rights-of-way. 110 Stat. 1321-177. This provision was in
H.R. 1977, the Department of Interior and Related Agencies Appropriations Bill,
1996, when it was reported from the House Committee on Appropriations on
June 30, 1995. It remained intact through the enactment of Pub. L. No. 104-134 on
April 26, 1996, and is narrower in scope than the moratorium enacted by section
349 of Pub. L. No. 104-59 five months earlier.
4
 The provision for the moratorium was added to the Senate bill as a floor
amendment and had a December 1, 1995 expiration date. The conference
committee adopted the moratorium contained in the Senate bill and extended its
application through the end of fiscal year 1996. H. Rep. Conf. Rep. No. 104-345 at
108 (Nov. 15, 1995), reprinted in 1995 U.S.C.C.A.N. 610.

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granted under section 2477 of the Revised Statutes, and for other purposes." The
bill, as reported from the Committee on May 9, 1996, consisted entirely of the
language now found at section 108 of the fiscal year 1997 Interior Appropriations
Act. The purpose of S. 1425 was to allow the Department of the Interior to develop
new regulations while prohibiting their implementation until expressly approved by
an Act of Congress. S. Rep. No. 104-261, at 2 (1996). There is no question that if it
had been enacted into law, S. 1425 would have continued indefinitely the restriction
against agency rules or regulations on R.S. 2477 rights-of-way becoming effective
without an authorizing Act of Congress. See, id., at 3-4 (Letter from June E. O'Neill,
Director, Congressional Budget Office, dated May 8, 1996). While no further action
was taken on S. 1425, its language ultimately became section 108 of the fiscal year
1997 Interior Appropriations Act.

A little more than a month after the Senate Committee on Energy and Natural
Resources reported S. 1425, the House of Representatives passed H.R. 3662, the
Department of the Interior and Related Agencies Appropriations Bill, 1997. Section
109 of H.R. 3662 stated that

         "None of the funds appropriated or otherwise made available by this
         Act may be obligated or expended by the Secretary of the Interior for
         developing, promulgating, and thereafter implementing a rule
         concerning right-of-way under section 2477 of the Revised Statutes."

This language was identical to language in the fiscal year 1996 appropriation act
enacted two months before. See note 2 above. When the Senate Committee on
Appropriations reported its version of the appropriations bill, it deleted the House
language and substituted the language of S. 1425, stating that it was "identical to the
bipartisan proposal reported by the Senate Energy and Natural Resources
Committee (Senate bill 1475 [sic])." S. Rep. No. 104-319, at 56 (1996). This is the
language ultimately enacted as section 108 of the fiscal year 1997 Interior
Appropriations Act as contained in Pub. L. No. 104-208.

This history strongly supports the conclusion that Congress intended section 108 to
be permanent. Section 108 was lifted verbatim from a bill that by virtue of its
language and its character as general legislation would, if enacted, have continued
indefinitely the restriction on implementing rules on R.S. 2477 rights-of-way. Also,
the Senate and ultimately the Congress substituted the language of S. 1425 for the
language of H.R. 3662, which like the identical language of Pub. L. No. 104-134 for
fiscal year 1996, was clearly applicable only for a fiscal year. In revealing the origin
of section 108, the applicable discussion in S. Rep. No. 104-319 and H. Conf. Rep.
No. 104-863 contains nothing to suggest that Congress intended for the effect of the
language from S. 1425, i.e., an indefinite restriction, to be different when included
in the appropriation act.


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Other reasons support the conclusion that the Congress intended section 108 to be
permanent legislation. The language of section 108 is not a restriction on the use of
appropriations. It is a substantive provision addressing when certain agency rules
or regulations can take effect. Its language standing alone is permanent in nature.
36 Comp. Gen. at 436. Also, no real effect would be given to the phrase
""subsequent to the date of enactment of this Act" if it were interpreted to only
describe the time period when an authorizing "Act of Congress" must occur before
an agency rule becomes effective. Section 108 could not have been designed to
vitiate a prior Act of Congress expressly authorizing final agency rules or
regulations on R.S. 2477 rights-of-way for the simple reason that there was and is
none. Accordingly, any Act of Congress expressly authorizing a final rule or
regulation on R.S. 2477 rights-of-way would be one enacted after enactment of the
fiscal year 1997 Interior Appropriations Act. For the phrase "subsequent to the date
of enactment of this Act" to have any effect, it must mean that the section 108
restriction on when a rule or regulation on R.S. 2477 rights-of-way takes effect is
permanent law beginning with the date of enactment of the fiscal year 1997 Interior
Appropriations Act.

For the reasons discussed above, we conclude that section 108 is permanent law. I
trust the foregoing will be of assistance.

Sincerely yours,



Robert P. Murphy
General Counsel

Enclosure




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B-277719                                  ENCLOSURE



List of Requesters

The Honorable Robert F. Bennett
The Honorable Conrad Burns
The Honorable Larry E. Craig
The Honorable Orrin G. Hatch
The Honorable Frank H. Murkowski
The Honorable Ted Stevens
United States Senate

The Honorable Chris Cannon
The Honorable Helen Chenoweth
The Honorable Michael D. Crapo
The Honorable Barbara Cubin
The Honorable Randy "Duke" Cunningham
The Honorable John T. Doolittle
The Honorable John E. Ensign
The Honorable Jim Gibbons
The Honorable James V. Hansen
The Honorable Doc Hastings
The Honorable J.D. Hayworth
The Honorable Wally Herger
The Honorable Jim Kolbe
The Honorable Jerry Lewis
The Honorable George R. Nethercutt, Jr.
The Honorable Ron Packard
The Honorable Richard W. Pompo
The Honorable George P. Radanovich
The Honorable Bob Schaffer
The Honorable Joe Skeen
The Honorable Robert F. (Bob) Smith
The Honorable Bob Stump
The Honorable Charles H. Taylor
The Honorable Don Young
House of Representatives




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B-277719



August 20, 1997



DIGEST



The presumption is that everything in an appropriation act is effective only for the

year covered, but the presumption can be overcome with "words of futurity" that

reflect the Congress' intention for the provision to be permanent law. The location

of the "words of futurity" in a restriction on agency rulemaking contained in the

fiscal year 1997 Interior Appropriations Act created some ambiguity about what the

words modified and, therefore, whether the restriction was permanent law or

expired at the end of the fiscal year. An analysis of the provision's legislative

history and purpose supported the conclusion that the restriction is permanent law.




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