TITLE: Bureau of Alcohol, Tobacco, Firearms, and Explosives--Words of Futurity in Fiscal Year 2006 Appropriations Act, August 28, 2007
BNUMBER: B-309704
DATE: August 28, 2007
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, Bureau of Alcohol, Tobacco, Firearms, and Explosives--Words of Futurity in Fiscal Year 2006 Appropriations Act, August 28, 2007
B-309704
August 28, 2007
The Honorable Patrick J. Kennedy
House of Representatives
Subject: Bureau of Alcohol, Tobacco, Firearms, and Explosives--Words of
Futurity in Fiscal Year 2006 Appropriations Act
Dear Mr. Kennedy:
In a letter dated June 20, 2007, you requested our opinion regarding
whether a proviso appearing in the fiscal year 2006 Bureau of Alcohol,
Tobacco, Firearms, and Explosives (ATF) Salaries and Expenses
appropriation regarding the Firearms Trace System constitutes permanent
legislation. The proviso prohibits ATF from using appropriated funds to
disclose contents of the Firearms Trace System database except to certain
parties. For the reasons stated below, we conclude that this provision is
permanent law.
BACKGROUND
To execute its mission of enforcing federal firearms laws, ATF conducts
firearms traces for federal, state, local, and tribal law enforcement
agencies. 18 U.S.C. sect. 923. See also Library of Congress, Congressional
Research Service, Gun Control: Statutory Disclosure Limitations on ATF
Firearms Trace Data and Multiple Handgun Sales Reports, No. RS22458 (July
20, 2007), at 2. ATF maintains a Firearms Trace System database that
contains information related to guns recovered in connection with a crime.
See 18 U.S.C. sect. 923(g).
In the fiscal year 2003 Department of Justice Appropriations Act, Congress
directed that no funds appropriated in that act "or any other Act with
respect to any fiscal year" were available "to take any action" under the
Freedom of Information Act with respect to information in the Firearms
Trace System database. Consolidated Appropriations Resolution, 2003, Pub.
L. No. 108-7, sect. 644, 117 Stat. 11, 473 (Feb. 20, 2003). Congress
included similar language in fiscal years 2004 and 2005. Department of
Justice Appropriations Act, 2004, Pub. L. No. 108-199, div. B, title I,
118 Stat. 3, 52--3 (Jan. 23, 2004); Department of Justice Appropriations
Act, 2005, Pub. L. No. 108-447, div. B, title I, 118 Stat. 2809, 2859
(Dec. 8, 2004).
In the 2006 Department of Justice Appropriations Act, as part of the
language of ATF's Salaries and Expenses appropriation, Congress included a
similar proviso stating that "no funds appropriated under this or any
other Act with respect to any fiscal year may be used to disclose part or
all of the contents of the Firearms Trace System database" to anyone other
than a law enforcement agency or a prosecutor in connection with a
criminal investigation or prosecution.[1] Department of Justice
Appropriations Act, 2006, Pub. L. No. 109-108, title I, 119 Stat. 2290,
2295 (Nov. 22, 2005) (ATF proviso). It is the 2006 proviso that we address
in this opinion.[2]
DISCUSSION
Appropriations acts are by their nature nonpermanent legislation. See,
e.g., B-288511, Aug. 22, 2001; B-271412, June 13, 1996. Provisions in
appropriations acts are presumed effective only for the covered fiscal
year. B-288511. Accordingly, unless otherwise specified, the provisions of
an appropriations act for a given fiscal year expire at the end of that
fiscal year. Id.
Congress, of course, has the power to enact permanent legislation in an
appropriations act. See Robertson v. Seattle Audubon Society, 503 U.S.
429, 440 (1992). When the language or nature of an appropriations act
provision makes it clear that such was the intent of Congress, we will
construe the provision as permanent legislation. B-288511, Aug. 22, 2001.
The most important factor in ascertaining Congress's intent is the
language of the statute itself. See, e.g., Mallard v. United States
District Court, 490 U.S. 296, 300 (1989). In this regard, the clearest
indication that Congress intended a provision to be permanent is the
presence in the provision of "words of futurity" clearly indicating such
intent. B-288511, Aug. 22, 2001; 65 Comp. Gen. 588 (1986). For example, in
some circumstances, Congress has indicated permanence in the language of
an appropriations act provision when it included the operative term
"henceforth" to denote futurity. B-209583, Jan. 18, 1983. The United
States Court of Appeals for the Second Circuit found words of futurity in
the phrase "this subsection shall apply to fiscal year 1999 and each
fiscal year thereafter." Auburn Housing Authority v. Martinez, 277 F.3d
138, 146 (2^nd Cir. 2002). The court concluded that such language
constituted permanent legislation because it contained "unambiguous
language of permanence . . . [that] clearly and expressly indicates that
it is intended to be permanent."[3] Id. at 143.
The ATF proviso applies to "funds appropriated under this or any other Act
with respect to any fiscal year." We have previously found that when a
provision in an appropriations act applies to "funds appropriated under
this or any other act," without further indication of permanence, the
provision is temporary. 65 Comp. Gen. at 589 (the phrase "this act or any
other act," standing alone, is insufficient to indicate futurity);
B-145492, Sept. 21, 1976. In such instances, we understand the phrase to
refer only to other appropriations acts enacted in the same fiscal year as
the act in which the phrase appears. 65 Comp. Gen. at 589. However, we
have found that when, as here, the phrase "this or any other act" is
coupled with the phrase "with respect to any fiscal year," Congress
intended the provision in question to be permanent because of the
forward-looking effect of the phrase. B-230110, Apr. 11, 1988. Thus, when
Congress states that a provision in an appropriations act shall apply to
"this or any other act with respect to any fiscal year," as Congress has
done in the ATF proviso, it strongly indicates that Congress intended the
provision to be permanent law.[4]
We note the repeated appearance of some version of the ATF proviso in
ATF's appropriations acts since fiscal year 2003. In our view the
repetition of this proviso merely underscores the importance Congress
places on the provision. See, e.g., 36 Comp. Gen. 434, 436 (1956)
(repetition of permanent legislation in an appropriations act "is
consistent with an excess of caution" on the part of Congress). In this
regard, the legislative history of the provisos in previous years clearly
underscores the importance Congress placed on it:
"In the last two fiscal years the Committee has expressed serious
concern that, contrary to . . . Congress' intent, certain sensitive law
enforcement information contained in databases maintained by the ATF
have been subject to release . . . to the public . . . . The Committee
therefore includes language to make clear that ATF shall not make these
law enforcement records available to anyone other than to law
enforcement agencies for a bona fide criminal investigation."
H.R. Rep. No. 108-576, at 30 (language adopted by conference committee,
H.R. Conf. Rep. No. 108-792, at 734 (2004)).
CONCLUSION
While doubtless Congress may on occasion express its desire for future
application of an appropriation restriction with ideal precision and
clarity, that, however, is not the test. Here, we believe that the use of
the phrase "with respect to any fiscal year" looks with reasonable clarity
forward to future appropriations. Hence in our opinion, the proviso
appearing in ATF's fiscal year 2006 appropriation directing that "no funds
appropriated under this or any other Act with respect to any fiscal year
may be used to disclose" data from the Firearms Trace System to
unauthorized parties is permanent law.
Sincerely yours,
Gary L. Kepplinger
General Counsel
DIGEST
A proviso appearing in the Bureau of Alcohol, Tobacco, Firearms, and
Explosives' fiscal year 2006 appropriation directing that "no funds
appropriated under this or any other Act with respect to any fiscal year
may be used to disclose" data from the Firearms Trace System to
unauthorized parties is permanent law. Provisions in appropriations acts
are presumed effective only for the covered fiscal year, unless Congress
makes clear that they are permanent. Here, the provision contains words of
futurity that indicate Congress intended it to be permanent.
------------------------
[1] The fiscal year 2005 and fiscal year 2006 provisions were each the
subject of litigation in which parties attempted to obtain information in
the Firearm Trace System database from ATF. The litigation did not address
whether the provisions were to be read as temporary or permanent
provisions of law. City of Chicago v. United States Department of the
Treasury, 423 F.3d 777 (7^th Cir. 2005) (2005 provision); City of New York
v. Beretta U.S.A. Corp., 429 F. Supp. 2d 517 (E.D.N.Y. 2006) (2006
provision).
[2] The ATF proviso remains in effect for fiscal year 2007 by virtue of
the continuing resolution enacted for the entire fiscal year. Continuing
Appropriations Resolution, 2007, Pub. L. No. 109-289, sect. 104, 120 Stat.
1257, 1313 (Sept. 29, 2006) as amended by Revised Continuing
Appropriations Resolution, 2007, Pub. L. No. 110-5, sect. 2, 121 Stat.
8-60 (Feb. 15, 2007) ("[T]he requirements, authorities, conditions,
limitations, and other provisions of" the fiscal year 2006 Department of
Justice Appropriations Act "shall continue in effect" through the end of
fiscal year 2007.).
[3] Both the Senate and House bills for ATF's fiscal year 2008
appropriation contain the same prohibition on the use of funds that
appears in the 2006 ATF proviso, using language similar to that in Auburn
Housing Authority. S. 1745, 110^th Cong., at 40 (2007) (restriction
applies to "funds appropriated under this or any other Act with respect to
any previous fiscal year, fiscal year 2008, and any fiscal year
thereafter"); H.R. 3093, 110^th Cong., at 32 (2007) (restriction applies
"beginning in fiscal year 2008 and thereafter").
[4] Our practice when rendering opinions is to obtain the views of the
relevant federal agency to establish a factual record and to elicit the
agency's legal position in the matter. GAO, Procedures and Practices for
Legal Decisions and Opinions, GAO-06-1064SP (Washington, D.C.: Sept.
2006), available at www.gao.gov/congress.htm. In this regard, ATF
responded to questions from our office regarding this matter, advising
that ATF agrees that the proviso is permanent law and applies the
restriction "regardless of fiscal year." Letter from Stephen R.
Rubenstein, Chief Counsel, ATF, to Thomas H. Armstrong, Assistant General
Counsel for Appropriations Law, GAO, Aug. 3, 2007, at 2.