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