TITLE: Consolidated Appropriations Act, 2008--Incorporation by Reference, February 25, 2008
BNUMBER: B-316010
DATE: February 25, 2008
**************************************************************************************
, Consolidated Appropriations Act, 2008--Incorporation by Reference, February 25, 2008

   B-316010

   February 25, 2008

   The Honorable Robert C. Byrd
   Chairman
   Committee on Appropriations
   United States Senate

   The Honorable Thad Cochran
   Ranking Minority Member
   Committee on Appropriations
   United States Senate

   Subject: Consolidated Appropriations Act, 2008--Incorporation by Reference

   In a letter dated January 30, 2008, you requested our opinion on the legal
   effect of seven appropriations provisions in the Consolidated
   Appropriations Act, 2008, Pub. L. No. 110-161, 121 Stat. 1844 (Dec. 26,
   2007). The seven provisions at issue incorporate by reference an
   explanatory statement of the House Committee on Appropriations that was
   printed in the Congressional Record on December 17, 2007. You asked
   whether the agencies' use of the appropriations enacted in the seven
   provisions must comply with the referenced allocations contained in the
   explanatory statement.[1]

   For the reasons stated below, we conclude that each of these provisions
   binds the agency's use of the enacted appropriation to the referenced
   allocations contained within the explanatory statement. Thus, the affected
   agencies are required to obligate and expend the appropriations in
   accordance with the referenced provisions of the explanatory statement.

   BACKGROUND

   The Consolidated Appropriations Act, 2008 (Act) contained 11 regular
   appropriations acts and emergency military funding. Pub. L. No. 110-161.
   No conference report accompanied the Act; the two houses of Congress
   reached final agreement with an exchange of amendments. Library of
   Congress, Congressional Research Service, Consolidated Appropriations Act
   for FY2008: Brief Overview, No. RL34298 (Jan. 4, 2008). Congress presented
   the Act to the President on December 24, 2007, and the President signed
   the Act into law on December 26, 2007. Although Congress convened no
   conference committee, section 4 of the Act, which applies to the entire
   Consolidated Appropriations Act, states that an explanatory statement
   printed in the Congressional Record on December 17, 2007, by the Chairman
   of the House Committee on Appropriations should be considered as if it
   were a joint explanatory statement of a conference committee.

   Section 6 contains the appropriations for each of the 11 regular
   appropriations acts, indicated by divisions A--K. You requested our
   opinion on the legal effect of the following seven provisions, all of
   which include legislative language incorporating by reference amount
   allocations, and in some cases terms and conditions, from the explanatory
   statement:

    1. Under the heading Department of Health and Human Services/Health
       Resources and Services Administration/Health Resources and Services in
       division G:

   "For carrying out [certain laws] . . . $6,978,099,000, of which
   $309,889,000 shall be available for construction and renovation (including
   equipment) of health care and other facilities and other health-related
   activities specified in the explanatory statement described in section 4
   (in the matter preceding division A of this consolidated Act) . . ."

   Pub. L. No. 110-161, sect. 6, div. G, title 2, 121 Stat. at 2169.

    2. Under the heading Department of Education/Higher Education in division
       G:

   "For carrying out, to the extent not otherwise provided, [certain laws] .
   . . $2,057,801,000 . . . Provided further, that $100,668,000 of the funds
   for part B of title VII of the Higher Education Act of 1965 shall be
   available for the projects and in the amounts specified in the explanatory
   statement described in section 4 (in the matter preceding division A of
   this consolidated Act) . . ."

   Pub. L. No. 110--161, sect. 6, div. G, title 3, 121 Stat. at 2196.

    3. Under the heading Institute of Museum and Library Services/Office of
       Museum and Library Services/Grants and Administration in division G:

   "For carrying out the Museum and Library Services Act of 1996 and the
   National Museum of African American History and Culture Act, $268,193,000,
   of which $18,610,000 shall be available for library, museum and related
   projects and in the amounts specified in the explanatory statement
   described in section 4 (in the matter preceding division A of this
   consolidated Act) . . ."

   Pub. L. No. 110-161, sect. 6, div. G, title 4, 121 Stat. at 2204.

    4. Under the heading Administrative Provisions--Small Business
       Administration in division D:

   "For an additional amount under the heading "Small Business
   Administration, Salaries and Expenses," $69,451,000, to remain available
   until September 30, 2009, shall be for initiatives related to small
   business development and entrepreneurship, including programmatic and
   construction activities: Provided, That amounts made available under this
   section shall be provided in accordance with the terms and conditions as
   specified in the explanatory statement described in section 4 (in the
   matter preceding division A of this consolidated Act) . . ."

   Pub. L. No. 110-161, sect. 6, div. D, title 5, sect. 534, 121 Stat. at
   2012.

    5. Under the heading Administrative Provisions--Federal Highway
       Administration in division K:

   "Notwithstanding any other provision of law, the Secretary of
   Transportation shall set aside from revenue aligned budget authority
   authorized for fiscal year 2008 under section 110 of title 23, United
   States Code, such sums as may be necessary for the programs, projects and
   activities at the level of 98 percent of the corresponding amounts
   identified under this section in the explanatory statement accompanying
   this Act . . ."

   Pub. L. No. 110-161, sect. 6, div. K, title 1, sect. 129, 121 Stat. at
   2388.

    6. Under the heading General Provisions--Department of Transportation in
       division K:

   "Funds provided or limited in this Act under the appropriate accounts
   within the Federal Highway Administration, the Federal Railroad
   Administration and the Federal Transit Administration shall be made
   available for the eligible programs, projects and activities at the level
   of 98 percent of the corresponding amounts identified in the explanatory
   statement accompanying this Act for the `Delta Regional Transportation
   Development Program' . . ."

   Pub. L. No. 110-161, sect. 6, div. K, title 1, sect. 186, 121 Stat. at
   2406.

    7. Under the heading Community Planning and Development/Community
       Development Fund in division K:

   "Of the amount made available under this heading, $179,830,000 shall be
   available for grants for the Economic Development Initiative (EDI) to
   finance a variety of targeted economic investments in accordance with the
   terms and conditions specified in the explanatory statement accompanying
   this Act: Provided, That the amount made available for each grant shall be
   at the level of 98 percent of the corresponding amount cited in said
   explanatory statement . . ."

   Pub. L. No. 110-161, sect. 6, div. K, title 2, 121 Stat. at 2420.

   DISCUSSION

   In general, legislative history is informational and not legally binding.
   Cherokee Nation of Oklahoma v. Leavitt, 543 U.S. 631, 646 (2005); Lincoln
   v. Vigil, 508 U.S. 182, 192 (1993);  55 Comp. Gen. 812, 820 (1976); 55
   Comp. Gen. 307, 319 (1975). In this case, however, the text of these seven
   provisions of the Consolidated Appropriations Act expressly refers to the
   explanatory statement of the House Appropriations Committee, printed in
   the Congressional Record of December 17, 2007, that accompanied the
   appropriations bill. At issue here is whether the text of these provisions
   of the law incorporates the explanatory statement into the law such that
   the agencies' use of the appropriations enacted in the seven provisions is
   subject to the amounts, and in some cases terms and conditions, specified
   in the explanatory statement.

   As a legislative tool, incorporation by reference is the use of
   legislative language to make extra-statutory material part of the
   legislation by indicating that the extra-statutory material should be
   treated as if it were written out in full in the legislation. See
   generally Black's Law Dictionary 781 (8^th ed. 2004). For example, in a
   2001 decision, in a case similar to what is before us here, the United
   States District Court for the District of Columbia upheld the
   incorporation by reference of an unenacted bill into an appropriations
   law. Hershey Foods Corp. v. United States Department of Agriculture, 158
   F. Supp. 2d 37 (D.D.C. 2001), aff'd, 293 F.3d 520 (D.C. Cir. 2002). In
   that case, the Consolidated Appropriations Act for fiscal year 2000
   provided that "H.R. 3428 of the 106^th Congress, as introduced on November
   17, 1999" is "hereby enacted into law."[2] Id.  at 38. The unenacted bill
   that was incorporated into the appropriations law had been published in
   the Congressional Record. The court said that "Congress may incorporate by
   cross-reference in its bills if it chooses to legislate in that manner."
   Id.  at 41.

   Incorporation by reference is a well-accepted legislative tool. Hershey
   Foods Corp., 158 F. Supp. 2d at 41 ("Laws containing cross-references do
   not appear to be uncommon."). Indeed, there are numerous instances in
   which the Supreme Court, for more than 100 years, has accepted
   incorporation by reference without objection. In an 1892 decision, the
   Supreme Court had under consideration the scope of a federal statute
   regarding appeals from the local District of Columbia courts to the U.S.
   Supreme Court. In re Heath, 144 U.S. 92 (1892). The statute provided for
   appeals "in the same cases and in like manner as provided by law" with
   regard to federal circuit courts, thereby incorporating by reference those
   laws into this statute. Id. at 93. In addressing this statute, the Court
   took notice of a practice in the early days of the country: "It was not an
   uncommon course of legislation in the states, at an early day, to adopt,
   by reference, British statutes." Id. at 94 (quoting Kendall v. United
   States, 37 U.S. (12 Pet.) 524, 625 (1801)). The Court said that in
   adopting the British statutes, "they become our own, as entirely as if
   they had been enacted by the legislature." Id. The Court raised no
   objection to the incorporation by reference at issue before it.

   In United States v. Sharpnack, 355 U.S. 286 (1958), the Supreme Court
   considered a section of the Assimilative Crimes Act that, in enacting
   criminal laws for certain federal enclaves, incorporated by reference the
   criminal laws of the states in which those enclaves were located. The Act
   said, "Whoever . . . is guilty of any act or omission which . . . would be
   punishable . . . by the laws [of the state] at the time of such act or
   omission, shall be guilty of a like offense and subject to a like
   punishment." 18 U.S.C. sect. 13 (1950). The Supreme Court explained,
   "Whether Congress sets forth the assimilated laws in full or assimilates
   them by reference, the result is as definite and as ascertainable as are
   the state laws themselves." Sharpnack, 355 U.S. at 293.

   The Supreme Court proceeded to list other examples where Congress
   incorporated by reference state laws into federal laws: the Federal Tort
   Claims Act, basing the liability of the United States on "the law of the
   place where the act or omission occurred"; the Federal Black Bass Act,
   prohibiting the transportation of fish in interstate commerce if contrary
   to the law of the state from which it is transported; the Johnson Act,
   prohibiting the transportation of gambling devices in interstate commerce
   unless a state exempts itself from the Act; the Social Security Act,
   providing that an applicant will be considered the husband or wife of the
   insured if the courts of the state in which the insured is domiciled would
   find that the applicant and insured were validly married. Sharpnack, 355
   U.S. at 295.

   Recently, the Supreme Court has accepted the incorporation by reference of
   a Rehabilitation Act provision into the Americans with Disabilities Act:
   "The remedies, procedures and rights set forth in section 794a of title 29
   [the Rehabilitation Act] shall be the remedies, procedures and rights this
   subchapter [the Americans with Disabilities Act] provides . . . " 42
   U.S.C. sect. 12133. See Tennessee v. Lane, 541 U.S. 509, 517 (2004).

   It is not just laws that the Supreme Court has acknowledged may be
   incorporated by reference. In Robertson v. Seattle Audubon Society, 503
   U.S. 429 (1992), the Supreme Court accepted the incorporation by reference
   of a portion of an environmental impact statement. Congress, in the
   Department of the Interior and Related Agencies Appropriations Act for
   fiscal year 1990, prohibited timber sales "within [spotted owl habitat
   areas] identified pursuant to . . . the Environmental Impact Statement . .
   . and the accompanying Record of Decision issued by the Forest Service on
   December 8, 1988," and "within the 110 areas identified in the December
   22, 1987 agreement . . . between the Bureau of Land Management and the
   Oregon Department of Fish and Wildlife." Robertson, 503 U.S. at 434.

   In all of these cases, the language of the statutes evidenced clear
   congressional intent to incorporate by reference, and the referenced
   material was specifically ascertainable from the legislative language so
   all would know with certainty the duties, terms, conditions, and
   constraints enacted into the law.[3] The seven provisions at issue here
   likewise evidence clear congressional intent to incorporate specific
   amounts, and in some cases terms and conditions, ascertainable with
   certainty by reference to the explanatory statement printed in the
   Congressional Record on December 17, 2007. The language of these
   provisions directs ("shall be") that amounts are available to agencies "in
   accordance with the terms and conditions specified in the explanatory
   statement," for "projects and in the amounts specified in the explanatory
   statement," for "activities specified in the explanatory statement," or
   "at a level of 98 percent of the corresponding amounts identified in the
   explanatory statement." These legislative phrases manifest a clear,
   unambiguous intent to incorporate the referenced explanatory statement.

   Also, these provisions clearly and specifically identify what is to be
   incorporated. Each provision refers to either "the explanatory statement
   described in section 4" or "the explanatory statement accompanying this
   Act." Similar to the language in Hershey Foods Corp., section 4 of the Act
   describes the explanatory statement in detail: "The explanatory statement
   regarding the consolidated appropriations amendment of the House of
   Representatives to the amendment of the Senate to H.R. 2764, printed in
   the House section of the Congressional Record on or about December 17,
   2007 by the Chairman of the Committee on Appropriations of the House . . .
   ." Section 4 also explains that although no conference committee was
   convened, the explanatory statement described will serve as a joint
   explanatory statement for purposes of the Act. Whether the language in the
   seven provisions refers to the explanatory statement described in section
   4 or to the explanatory statement accompanying the Act, the language can
   refer to only one document, because section 4, which applies to the entire
   Consolidated Appropriations Act, defines the explanatory statement printed
   in the December 17, 2007, Congressional Record as the joint explanatory
   statement accompanying the Act.[4]

   With reference to the explanatory statement, each agency, and others who
   refer to the provisions, can ascertain with certainty what allocations the
   law imposes on its appropriations. For example, the Institute of Museum
   and Library Services appropriation provides, "For carrying out the Museum
   and Library Services Act of 1996 and the National Museum of African
   American History and Culture Act, $268,193,000, of which $18,610,000 shall
   be available for library, museum and related

   projects and in the amounts specified in the explanatory statement
   described in section 4 (in the matter preceding division A of this
   consolidated Act)." Pub. L. No. 110-161, sect. 6, div. G, title 4, 121
   Stat. at 2204 (emphasis added). To ascertain how to allocate the
   $18,610,000 among the various library, museum, and related projects, the
   Act directs the agency to the explanatory statement; section 4 of the Act
   tells the agency precisely what the explanatory statement is and where to
   find it. In the Act, this appropriation appears under the heading
   Institute of Museum and Library Services/Office of Museum and Library
   Services/Grants and Administration in division G. Under that same heading
   in the same division of the explanatory statement, found on page H16283 in
   the December 17, 2007, Congressional Record, the explanatory statement
   includes a table of projects and an amount for each project, with a total
   of $18,610,000. 153 Cong. Rec. H16284--86 (daily ed. Dec. 17, 2007).

   For each of the other six provisions, the agencies, and others reading the
   provisions, can ascertain amount allocations by referring to the
   explanatory statement in the same way. For each of those six provisions,
   the explanatory statement includes a table of projects and an amount for
   each project. For three of the six provisions (Health Resources and
   Services, Higher Education, Small Business Administration), the amounts
   identified in the explanatory statement total the amounts set out in the
   provisions. In two of the provisions (Federal Highway Administration and
   Department of Transportation), no amounts were identified in the
   provisions; amounts, however, are ascertainable by reference to the
   explanatory statement. In three of the provisions (Federal Highway
   Administration, Department of Transportation, and Community Development
   Fund), Congress appropriated 98 percent of the corresponding amounts
   identified in the explanatory statement. For each of those three
   provisions, the amounts appropriated are easily calculated by reference to
   the explanatory statement. The Community Development Fund provision, which
   makes an appropriation for Economic Development Initiative grants,
   identified a specific amount in the provision; that amount equals 98
   percent of the total of the amounts for grants identified in the
   explanatory statement.

   Because the language of the seven provisions clearly and unambiguously
   expresses an intent to appropriate amounts as allocated in the explanatory
   statement and because reference to the explanatory statement permits the
   agencies and others to ascertain with certainty the amounts and purposes
   for which these appropriations are available, these provisions establish
   the referenced allocations contained in the explanatory statement as
   legally binding restrictions on the agencies' appropriations.

   We conclude, therefore, that the affected agencies are required to
   obligate and expend amounts appropriated in these seven provisions in
   accordance with the referenced allocations in the explanatory
   statement.[5]

   Use of incorporation by reference as a legislative tool does not accrete
   to Congress any power not already provided by the Constitution.
   Appropriating funds is manifestly a congressional prerogative. U.S. Const.
   art. I, sect. 9, cl. 7. Congress is free to circumscribe agency authority
   to allocate resources by including restrictions within the text of
   appropriations and other acts. Lincoln, 508 U.S. at 193;  55 Comp. Gen. at
   820; 55 Comp. Gen. at 320. Furthermore, as the court said in Hershey Foods
   Corp., "Congress may incorporate by cross-reference in its bills if it
   chooses to legislate in that manner." Hershey Foods Corp., 158 F. Supp. 2d
   at 41. It follows, therefore, that Congress may "cross-reference," or
   incorporate by reference, an explanatory statement into the law, even
   though the statement would not otherwise create legally binding
   requirements, and give the explanatory statement or references therein the
   force of law.

   Also, incorporation by reference does not offend the Constitution's
   presentment clause. Hershey Foods Corp., 158 F. Supp. 2d 37. The
   Constitution requires that, before a bill can become a law, it must pass
   both the House of Representatives and the Senate and be presented to the
   President for his signature. U.S. Const. art. I, sect. 7, cl. 2. The
   President then can sign or veto the bill, but if a bill is vetoed,
   Congress can vote to override the President's veto. In Hershey Foods
   Corp., the plaintiff challenged the incorporation by reference of an
   unenacted bill into an appropriations act. The plaintiff claimed that
   because the incorporated bill was not properly presented to the President,
   it should not be given legal effect. The court disagreed. Hershey Foods,
   158 F. Supp. 2d at 41. The court said that both Houses had passed the
   appropriations bill with the incorporation by reference and the
   appropriations bill was presented to the President, who signed it into
   law. Id. at 39. The court noted that the unenacted, incorporated bill had
   been published in the Congressional Record, a public document available to
   the President when he signed the appropriations bill into law. Id. at 41.

   CONCLUSION

   Legislative incorporation by reference is well founded historically and
   the Supreme Court has accepted it as a legislative tool without objection.
   The seven provisions at issue in this opinion unambiguously manifest the
   intent to incorporate by reference related amount allocations in the
   explanatory statement. The reference in these seven provisions to the
   explanatory statement permits the agencies and others to ascertain with
   certainty the amounts and purposes for which the appropriations enacted by
   these seven provisions are available.

   Hence, these provisions establish the referenced allocations contained
   within the explanatory statement as legally binding restrictions on agency
   appropriations. The affected agencies, therefore, are required to obligate
   and expend the appropriations in accordance with the referenced provisions
   of the explanatory statement.

   Sincerely yours,

   Gary L. Kepplinger
   General Counsel

   ------------------------

   [1] Our general practice when issuing opinions is to obtain the views of
   the relevant agencies. GAO, Procedures and Practices for Legal Decisions
   and Opinions, GAO-06-1064SP (Washington, D.C.: Sept. 2006), available at
   www.gao.gov/legal/resources.html. Given the numerous agencies and the
   request by the Committee to expedite our opinion, we did not solicit the
   views of the relevant agencies in this case.

   [2] The effect of the incorporation was to enact into law a final rule
   published by the Secretary of Agriculture in 1999.

   [3] Cf. Southern Clay Products v. United Catalysts, 43 Fed. App'x 379,
   383-84 (Fed. Cir. 2002); Advanced Display Systems v. Kent State
   University, 212 F.3d 1272, 1282 (Fed. Cir. 2000). The Federal Circuit
   Court of Appeals, before accepting incorporations by reference in patents,
   looked for evidence of intent to incorporate and specific identification
   of the incorporated references.

   [4] The explanatory statement was published in the December 17, 2007,
   daily edition of the Congressional Record. The daily edition of the
   Congressional Record must be delivered on the day after the actual day's
   proceedings unless otherwise directed by the Joint Committee on Printing.
   44 U.S.C. sect. 906. Additionally, the daily edition of the Congressional
   Record is typically available on the Internet the day following the
   proceedings at www.gpoaccess.gov/crecord/index.html (last visited Feb. 8,
   2008).

   [5] On January 29, 2008, President Bush issued an executive order stating
   that for appropriations laws and other legislation enacted after the date
   of the order, "executive agencies should not commit, obligate, or expend
   funds on the basis of earmarks included in any non-statutory source,
   including requests in reports of committees of the Congress or other
   congressional documents . . . except when required by law . . . ." Exec.
   Order No. 13457, Protecting American Taxpayers From Government Spending on
   Wasteful Earmarks, 73 Fed. Reg. 6417 (Feb. 1, 2008). The seven provisions
   at issue here were enacted in December 2007, before the executive order
   was issued, and therefore do not fall within the scope of the executive
   order. Nevertheless, because the amount allocations of the explanatory
   statement are incorporated into the appropriations act itself, they are
   "required by law" and, were the executive order in effect, would not
   constitute "earmarks included in any non-statutory source" as defined in
   the executive order.