TITLE: Bureau of Alcohol, Tobacco, Firearms, and Explosives--Prohibition in the 2008 Consolidated Appropriations Act, July 15, 2008
BNUMBER: B-316510
DATE: July 15, 2008
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, Bureau of Alcohol, Tobacco, Firearms, and Explosives--Prohibition in the 2008 Consolidated Appropriations Act, July 15, 2008

   B-316510

   July 15, 2008

   The Honorable John Culberson

   House of Representatives

   Subject: Bureau of Alcohol, Tobacco, Firearms, and Explosives--Prohibition
   in the 2008 Consolidated Appropriations Act

   Dear Mr. Culberson:

   In a letter dated May 14, 2008, you requested our opinion on whether a
   proviso included in the 2008 Consolidated Appropriations Act regarding the
   disclosure of certain information maintained by the Bureau of Alcohol,
   Tobacco, Firearms, and Explosives (ATF) is permanent law. Letter from
   Representative John Culberson to Gene Dodaro, Acting Comptroller General,
   May 14, 2008. The proviso prohibits using appropriated funds to disclose
   part or all of the contents of ATF's Firearms Trace System database,
   except to certain parties. Consolidated Appropriations Act, 2008, Pub. L.
   No. 110-161, div. B, title II, 121 Stat. 1844, 1903--04 (Dec. 26, 2007)
   (2008 proviso). This proviso is similar to one appearing in ATF's 2006
   appropriation, which we found in a prior opinion to be permanent law.[1]
   See Department of Justice Appropriations Act, 2006, Pub. L. No. 109-108,
   title I, 119 Stat. 2290, 2295 (Nov. 22, 2005) (2006 proviso). For the
   reasons stated below, we conclude that the 2008 proviso is permanent
   law.[2]

   BACKGROUND

   ATF maintains a Firearms Trace System database containing information
   related to guns recovered in connection with a crime, and ATF conducts
   firearms traces for other law enforcement agencies. B-309704, Aug. 28,
   2007. The 2006 proviso states, in part, 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 federal, state, or local law enforcement
   agency or a prosecutor in connection with a criminal investigation or
   prosecution. Pub. L. No. 109-108, title I, 119 Stat. 2290, 2296. In our
   opinion addressing the 2006 proviso, we held that when the phrase "this or
   any other act" is coupled with the phrase "with respect to any fiscal
   year," Congress intends the provision in question to be permanent because
   of the forward-looking effect of the phrase. B-309704, Aug. 28, 2007. We
   concluded that the 2006 proviso is permanent law.

   The 2008 Consolidated Appropriations Act contains a similar proviso
   stating, among other things, that "beginning in fiscal year 2008 and
   thereafter, no funds appropriated under this or any other Act may be used
   to disclose part or all of the contents of the Firearms Trace System
   database" except to "a Federal, State, local, tribal, or foreign law
   enforcement agency. . . or a Federal agency for a national security or
   intelligence purpose. . . ." Pub. L. No. 110-161, div. B, title II. The
   2008 proviso also allows for the sharing or exchange of firearms trace
   information among and between law enforcement agencies, federal, state, or
   local prosecutors, and federal national security, intelligence, or
   counterterrorism officials. Id. Finally, the 2008 proviso states that ATF
   may publish "statistical aggregate data regarding firearms traffickers and
   trafficking channels, or firearms misuse, felons, and trafficking
   investigations." Id.

   DISCUSSION

   Appropriations acts are by their nature nonpermanent legislation, and
   provisions in appropriations acts are presumed effective only for the
   covered fiscal year. B-309704, Aug. 28, 2007. Congress, of course, has the
   power to enact permanent legislation in an appropriations act. Id. 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. B-309704, Aug. 28, 2007. 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. Id. For example, 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." Id.

   The 2008 proviso states that "beginning in fiscal year 2008 and
   thereafter, no funds appropriated under this or any other act" may be used
   to disclose part or all of the contents of the Firearms Trace System
   database. By using the phrase "in fiscal year 2008 and thereafter,"
   Congress has clearly indicated that the proviso is intended to be
   permanent. We read the plain meaning of the phrase as applying the
   prohibition to fiscal year 2008 and to fiscal years after 2008, in other
   words, "in fiscal year 2008 and each fiscal year thereafter." We therefore
   conclude that the 2008 proviso is permanent law.

   Although both the 2006 and 2008 provisos are permanent law, Congress
   changed the 2008 proviso from the 2006 proviso in several respects. In
   this regard, ATF has identified "three principal modifications" to the
   2006 proviso that are contained in the 2008 proviso. Rubenstein Letter, at
   2. First, the 2008 proviso allows trace data to be shared with tribal and
   foreign law enforcement agencies and federal agencies for national
   intelligence purposes. Second, it allows information to be shared or
   exchanged among and between law enforcement agencies and prosecutors.
   Third, it provides for the release of certain statistical aggregate data.

   In these three areas, ATF could be faced with circumstances in which it
   would be impossible to comply with the both the 2006 and 2008 provisos
   because the two provisos directly conflict. For example, a disclosure to a
   tribal law enforcement agency is allowed under the 2008 proviso but would
   not be permitted under the 2006 proviso.

   With regard to the provisos in question here, to the extent the three
   areas identified in the 2008 proviso irreconcilably conflict with the 2006
   proviso, the 2008 proviso controls. While repeals by implication are
   disfavored, such repeals may be warranted where two statutes
   irreconcilably conflict. See Posadas v. National City Bank of New York,
   296 U.S. 497, 503 (1936). See also Tennessee Valley Authority v. Hill, 437
   U.S. 153 (1978); B-240610, Feb. 2, 1989. To resolve such conflicts, we and
   the federal courts apply a "last-in-time rule," namely, that the statute
   enacted last supersedes the previously enacted statute to the extent of
   the conflict. Posadas, 296 U.S. at 503; B-303268, Jan. 3, 2005. Both the
   2006 and 2008 provisos directly address the narrow subject of how
   disclosure of information contained in the same database will be
   restricted. The 2008 proviso, as discussed, specifically authorizes
   disclosure in some circumstances that would not be permitted under the
   2006 proviso. Under applicable canons of statutory construction, because
   of the irreconcilable conflict, the 2008 proviso will supersede the 2006
   proviso with respect to disclosures addressed by these three areas in the
   2008 proviso.

   CONCLUSION

   The proviso in the 2008 Consolidated Appropriations Act prohibiting ATF
   from using appropriated funds to disclose data in the Firearms Trace
   System database to unauthorized parties is permanent law. Because it was
   passed later in time, the 2008 proviso will supersede the 2006 proviso to
   the extent that the two are in irreconcilable conflict.

   Sincerely yours,

   Gary L. Kepplinger
   General Counsel

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

   [1] B-309704, Aug. 28, 2007.

   [2] Our practice when rendering decisions is to obtain a factual record
   from the relevant federal agency and to elicit the legal position, if any,
   of the agency on the subject matter of the request. 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. In this
   regard, ATF responded to our office in this matter, advising that ATF
   views the proviso as permanent. Letter from Stephen R. Rubenstein, Chief
   Counsel, ATF, to Thomas H. Armstrong, Assistant General Counsel for
   Appropriations Law, GAO, June 19, 2008 (Rubenstein Letter).