Consolidated Appropriations Act, 2008--Incorporation by Reference, February 25, 2008

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