BNUMBER:  B-277719 
DATE:  August 20, 1997
TITLE: [Letter], B-277719, August 20, 1997
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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  sec.  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.

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.

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 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.

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

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

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. 

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.