[Congressional Record Volume 143, Number 117 (Monday, September 8, 1997)]
[Extensions of Remarks]
[Pages E1681-E1682]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

[[Page E1681]]


              COMPTROLLER GENERAL DECISION LETTER B-277719

                                 ______
                                 

                             HON. DON YOUNG

                               of alaska

                    in the house of representatives

                       Monday, September 8, 1997

  Mr. YOUNG of Alaska. Mr. Speaker, on August 20, 1997, the Comptroller 
General issued decision letter B-277719 concluding that section 108, of 
the paragraph entitled ``General Provisions--Department of the 
Interior'', Department of the Interior and Related Agencies 
Appropriations Act, 1997 is permanent law. Section 108 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.''
  This letter was issued in response to a request by 30 Members of 
Congress and resolves the question of permanency of this important 
provision.
  I ask that a copy of the letter dated July 29, 1997, requesting a 
decision from the Comptroller General on the permanence of section 108 
and Decision Letter B-277719 be printed in the Congressional Record.

                                                July 29, 1997.

     James F. Hinchman
     Acting Comptroller General of the United States, General 
       Accounting Office, Washington, DC.
       Dear Mr. Hinchman: The Omnibus Consolidated Appropriations 
     Act, 1997 (P.L. 104-208) contains the following section under 
     the heading ``General Provisions'' in Title I--Department of 
     the Interior: ``Sec. 108. 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.''
       We emphatically believe that Section 108 was intended by 
     Congress to be a provision of permanent law and we seek your 
     expedited consideration of this question and a letter 
     decision on the issue. Time is of the essence. Out of an 
     excess of caution, several of the undersigned Members of the 
     House urged inclusion of this language in H.R. 2107, the 
     current Department of Interior and Related Agencies 
     Appropriations bill, which will soon be considered by the 
     Senate and possibly by a conference committee. We are 
     concerned that re-enactment of this provision could 
     inadvertently give rise to erroneous inference that Congress 
     does not consider the provision permanent. 32 Comp. Gen. 11 
     (1952); 36 Comp. Gen. 434 (1956).
       Please note that Sec. 108 contains the phrase ``subsequent 
     to the date of enactment of this Act'' which clearly is 
     intended to have effect beyond the fiscal year covered by the 
     bill. Words substantially similar to this phrase previously 
     have been recognized as words of futurity. 65 Comp. Gen. 588 
     (1986). Any characterization of this phrase as only a 
     modifier of the words ``an Act of Congress'' would reduce the 
     phrase to mere surplusage because there is no Act of Congress 
     enacted prior to or on the date of enactment of Sec. 108 that 
     expressly authorizes regulations pursuant to R.S. 2477. 
     Therefore, enactment of any such authorization is necessarily 
     subsequent to the date of enactment of Sec. 108. The phrase 
     is meaningless if it is interpreted solely as a temporal 
     limitation on the three words immediately preceding it. 
     ``Constructions that do not give effect to all of the words 
     of a statute must be avoided . . .'' 70 Comp. Gen. at 
     354 (citing 2 N. Singer, Sutherlands Statutory 
     Construction Sec. 33.02 (4th ed. 1984)). Clearly, Sec. 108 
     contains sufficient words of futurity to indicate that it 
     is a permanent law.
       The legislative history of Sec. 108 and related predecessor 
     provisions is both relevant and illuminating. 65 Comp. Gen. 
     588 (1986). The language that ultimately became Sec. 108 was 
     taken intact from a legislative bill, S. 1425, as reported to 
     the Senate by the Committee on Energy and Natural Resources 
     on May 9, 1996. The language of S. 1425 was included in the 
     Senate version of the FY 1997 Department of Interior and 
     Related Agencies Appropriations bill at the request of the 
     Chairman of the Committee on Energy and Natural Resources and 
     the Ranking Republican Member of the Committee on 
     Appropriations and its Subcommittee on Interior.
       Also relevant is limitation of funds language concerning 
     the same subject matter that was enacted for FY 1996 by the 
     Omnibus Consolidated Rescissions and Appropriations Act of 
     1996 (P.L. 104-135): ``Sec. 110. 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 rights-of-way under section 2477 of the Revised 
     Statutes.'' Subsequently, the same limitation of funds 
     language was included in H.R. 3662, the House version of the 
     FY 1997 Department of the Interior and Related Agencies 
     Appropriations bill, which passed the House on June 20, 1996. 
     The conference committee considered the House's limitation of 
     funds approach but ultimately adopted the Senate's permanent 
     language taken from S. 1425 for inclusion in P.L. 104-208. 
     This clearly indicates that Congress considered and rejected 
     a temporary provision in favor of a permanent one. 36 Comp. 
     Gen. 434 (1956).
       Another factor indicating that Sec. 108 is permanent law is 
     the fact that it is contained in a paragraph under the 
     heading ``General Provisions, Department of the Interior'' 
     but applies by its own terms to ``any agency of the Federal 
     Government'' As a factual matter, Sec. 108 applies to the 
     Forest Service in the Department of Agriculture, which 
     administers land subject to R.S. 2477 rights-of-way, and any 
     other federal agency that administers reservations from the 
     public lands, including the Department of Defense and the 
     Department of Energy. The other 13 sections under the 
     ``General provisions, Department of the Interior'' heading 
     apply exclusively to the Department of the Interior. 
     Therefore, Sec. 108 is sufficiently unrelated to the title of 
     the Act in which it appears to support the conclusion that 
     was intended to be permanent. B-214058, February 1, 1984.
       In conclusion, it is overwhelmingly clear from a plain 
     reading of Sec. 108, the presence of words of futurity, its 
     legislative history and the legislative history of related 
     provisions, and its relationship to the rest of Act that this 
     provision is permanent law.
       We would greatly appreciate your immediate attention to 
     this question and a reply at your earliest convenience.
         Conrad Burns, Orrin Hatch, Robert F. Bennett, Larry E. 
           Craig, Frank H. Murkowski, Ted Stevens, U.S. Senate.
         Don Young, Bob Smith, James V. Hansen, Joe Skeen, Jerry 
           Lewis, Bob Stump, Charles H. Taylor, Helen Chenoweth, 
           Richard Pombo, John T. Doolittle, Barbara Cubin, George 
           P. Radanovich, Doc Hastings, Wally Herger, Randy 
           ``Duke'' Cunningham, Bob Schaffer, Ron Packard, Jim 
           Kolbe, Jim Gibbons, J. D. Hayworth, Michael D. Crapo, 
           George R. Nethercutt, Jr., John E. Ensign, Chris 
           Cannon, House of Representatives.


           
                                                                    ____
                                        General Accounting Office,


                                Office of the General Counsel,

                                  Washington, DC, 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 
     1992.\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. 
     Sec. 10301(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.
---------------------------------------------------------------------------
     Footnotes are at the end of the letter.
---------------------------------------------------------------------------
       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

[[Page E1682]]

     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. 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.
       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. 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).
       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 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. 140-134 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.
       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.


                               Footnotes

     \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).
     \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.
     \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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