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.