Gilmour Creek, Satellite Equipment Advanced Microwave Sounding Unit..... Maintain Two Polar Orbiting Satellite System Paducah, Kentucky Weather Station Operations Maintain Status of Eight Weather Service Forecast Offices Pro posed for Downgrading. Maintain Southern Regional Headquarters in Dallas, Texas. Maintain Separate Alaska and Pacific Region Headquarters Maintain NOAA Weather Radio. 600,000 5,000,000 33,800,000 2 (400,000) 836,000 1,200,000 407,000 525,000 232,000 Prototype Regional Observing and Forecasting Service Program 2,000,000 2,000,000 Remote Weather Service Facility in Chattanooga to Serve the 524,000 1 NOAA is to conduct this activity out of Saltonstall/Kennedy Grants. 2 The conferees were assured by the Department of Commerce that sufficient funds will remain available from the fiscal 1984 appropriation for the radar at Paducah, Kentucky, to operate the facility in fiscal 1985. Accordingly, the conference agreement does not include the $400,000 provided by the Senate since the necessary funding is otherwise available. 3 Equipment purchased for this program shall be the property of the States and not revert to NOAA. If the President wanted to disapprove any of these particular items, he would not see them in the bill and could not use the item veto to eliminate them. The legal effect of allocations in committee reports Lump-sum appropriations allocated in committee reports would inhibit the use of the item veto as a tool to eliminate particular items. On the other hand, allocations that are not incorporated, expressly or by reference, into the appropriation act itself (or some other statute) are not legally binding. This is a principle of statutory construction unique to appropriation law 71 that has been clearly recognized by the Comptroller General,72 by the courts,73 and by the Congress. 74 The leading case in this area is the "LTV case.' "75 The fiscal year 1975 Defense Appropriation Act 76 provided a lump sum of $3 billion for "Research, Development, Test, and Evaluation, Navy". This category covered many projects including development of a new fighter aircraft. No separate projects were identified in the legislation. The conference report 77 said that of the $3 billion, $20 71 In general, vague and ambiguous terms in statutes are defined or narrowed in meaning by appeal to legislative history. Sutherland, 2A Statutory Construction 45.05 (1973) discusses the general principles that: 1) statutes are to be construed so as to give affect to the intent of the legislature and 2) legislative history is used to determine the intent of the legislature when the statute is unclear. See also United States v. American Trucking Association Inc., 310 U.S. 534 (1940) and United States v. Donruss Co., 393 U.S. 297 (1969). But legislative history is not used to restrict uses of a lump-sum appropriation in the same manner that legislative history is used to restrict the meaning of vague and ambiguous terms. See United States General Accounting Office, Office of General Counsel, 2 Principles of Federal Appropriations Law, 49 (1982). 72 Numerous decisions from the Comptroller General employ this principle. See, e.g., 17 Comp. Gen. 147, 150 (1937) in which the rule is succinctly stated: "The amounts of individual items in the estimates presented to the Congress on the basis of which a lump sum appropriation is enacted are not binding on administrative officers unless carried into the appropriation act itself." See also, 20 Comp. Gen. 631 (1941); 39 Comp. Gen. 784 (1960); 55 Comp. Gen. 307 (1975); 55 Comp. Gen. 812 (1976); 59 Comp. Gen. 228 (1980). In the latter case, an appropriation act provided a lump sum for the Nuclear Regulatory Commission (NRC) in 1980. The committee report specified that the money should not be used to assist intervenors in certain NRC proceedings. NRC, nevertheless, used some of the money for precisely that purpose. The Comptroller General held that the restriction was not in the statute and the appropriation was therefore available to assist intervenors. The decision notes, however, that: the "legal availability" of funds for a given expenditure and the practical wisdom of making that expenditure in the face of contrary expressions from congressional committees are two very different questions." 73 The Courts have also recognized this principle. See, e.g., International Union et al. v. Donovan, Civil Actions Nos. 83-1918 and 83-2082, memorandum opinions (D.C. Cir., October 23, 1984). The Supreme Court held, in Tennessee Valley Authority v. Hill, 437 U.S. 153, 191 (1978) that "Expressions of committees cannot be equated with statutes enacted by Congress." Congress provided lump-sum appropriations, several years in a row, which included funds for the Tellico Dam and Reservoir Project. The statutes made no reference to this project, but committee reports did specify an amount allocated for the Tellico Dam. Congress provided the funds even after the Secretary of the Interior, under the provisions of the Endangered Species Act of 1973, declared the snail darter, a small fish, to be an endangered species. The Little Tennessee River, site of the Tellico Dam and Reservoir Project, was the snail darter's critical habitat. It was believed that completion of the dam would result in the extinction of the snail darter. Under the Endangered Species Act, federal funds could not be provided for the dam. Defendants argued, however, that the lump-sum appropriation constituted, by implication, a repeal of or exemption from the Endangered Species Act. The Court held for the plaintiffs saying that the allocation in the committee reports was not legally binding and the unspecified inclusion in the lump sum was not sufficient to overturn the Endangered Species Act. 74 See, e.g., H. Rept. No. 93-662, 93rd Cong., 1st Sess., November 26, 1973. 75 55 Comp. Gen. 307 (1975). This is the Comptroller General's most comprehensive statement on the legal status of allocations of lump-sum appropriations in committee reports. 76 H.R. 16243, P.L. 93-437 93rd Cong., 2nd Sess., August 1, 1974. 77 H. Rept. No. 93-1363, 93rd Cong., 2nd Sess., September 18, 1974. million was to be used to develop a Navy combat fighter, noting that "adaptation of the selected Air Force Air Combat Fighter to be capable of carrier operations is the prerequisite for use of the funds provided." The Department of Navy selected McDonnell Douglas Corporation to develop the aircraft. It was conceded that the McDonnell Douglas aircraft was not an adaptation of the selected Air Force fighter and it was conceded that the Navy's selection was therefore not in accord with the conference report instructions. On that basis, LTV Aerospace Corporation protested the selection of McDonnell Douglas Corporation. The issue was whether the language in the conference report was legally binding. The Comptroller General decided: 78 Accordingly, it is our view that when Congress merely appropriates lump-sum amounts without statutorily restricting what can be done with those funds, a clear inference arises that it does not intend to impose legally binding restrictions, and indicia in committee reports and other legislative history as to how the funds should or are expected to be spent do not establish any legal requirements on Federal agencies. * We further point out that Congress itself has often recognized the reprogramming flexibility of executive agencies, and we think it is at least implicit in such [recognition] that Congress is well aware that agencies are not legally bound to follow what is expressed in Committee reports when those expressions are not explicitly carried over into the statutory language. * * The Comptroller General's opinion also noted: 79 * * [Clongress has recognized that in most instances it is desirable to maintain executive flexibility to shift around funds within a particular lump-sum appropriation account so that agencies can make necessary adjustments for "unforeseen developments, changing requirements, * and legislation enacted subsequent to appropriations." [Citation omitted.] This is not to say that Congress does not expect that funds will be spent in accordance with budget estimates or in accordance with restrictions detailed in Committee reports. However, in order to preserve spending flexibility, it may choose not to impose these particular restrictions as a matter of law, but rather to leave it to the agencies to "keep faith" with the Congress.* The basic principle has not been modified in later cases. Restrictions on lump-sum appropriations must be incorporated in the law, either expressly or by reference, to be legally binding. Despite the fact that agencies are not legally required to adhere to the language in committee reports, nonstatutory allocations may be pragmatically binding. The necessity to keep faith with the Congress was emphasized by the House Committee on Appropriations in its report on the 1974 Department of Defense appropriation bill: 80 In a strictly legal sense, the Department of Defense could utilize the funds appropriated for whatever programs were included under the individual appropriation accounts, but the relationship with the Congress demands that the detailed justifications which are presented in support of budget requests be followed. To do otherwise would cause Congress to lose confidence in the requests made and probably result in reduced appropriations or line item appropriation bills. Statutory controls and allocations incorporated by reference We have so far examined the complications for the item veto arising from Congress' use of nonbinding committee report language to allocate lump-sum appropriations. Congress does occasion ally try to incorporate the committee report language into legislation by reference. The question is: Would the item veto reach matters incorporated by reference into statutory language? The practice of allocating lump sums by reference dates back to the first Congress. As noted above, the Adminsitration's budget estimates were incorporated into the first appropriation bills.81 Joint resolutions making continuing appropriations are the most fertile contemporary source of allocations made by reference. Continuing resolutions, unlike regular appropriation bills, provide "such sums as may be necessary" for continuing projects or activities at a specified "rate for operations." Rates for operations have been set at various levels including the following: amounts provided in the administration's budget estimates; such sums as may be necessary "to the extent and in the manner" provided in a conference report; "the current rate"; amounts provided in a bill that has passed both Houses but has not become law; and the lower of the amounts provided in the House-passed or Senate-passed bill when the Senate has amended a House bill. The continuing resolution for fiscal year 1985 includes funds for the agriculture, rural development, and related agencies programs. It does so by reference to a bill and a conference report on that bill which was filed in the House on a specified date.82 SEC. 101. (a) Such sums as may be necessary for programs, projects, or activities provided for in the Agriculture, Rural Development and Related Agencies Appropriation Act, 1985 (H.R. 5743), to the extent and in the manner provided for in the conference report an joint explanatory statement of the Committee of Conference (House Report Numbered 98-1071), filed in the House of Representatives on September 25, 1984, as if such Act had been enacted into law. If the President had item-veto authority, would he have access to the separate items in the bill and joint explanatory statement? Are matters included by reference so fully incorporated into the statute that are available to be item vetoed? Would the President have before him only section 101(a) or would he be presented the bill, H.R. 5743, incorporated by reference? The agriculture bill, H.R. 5743, includes a paragraph providing funds for the Cooperative State Research Service. Of the total amount ($284.3 million) provided for the Cooperative State Research Service, $27.3 million is earmarked for special research grants in the same paragraph of the bill. Section 101(a) of the continuing resolution,83 which incorporated H.R. 5743, provides that the bill is incorporated only "to the extent and in the manner provided for in the conference report and the joint explanatory statement." 84 That joint explanatory statement included an allocation of the $27.3 million earmarked for special research grants. COOPERATIVE STATE RESEARCH SERVICE Amendment No. 11: Earmarks $27,328,000 for special research grants instead of $17,235,000 as proposed by the House and $29,407,000 as proposed by the Senate. The following table reflects the conference agreement for special research grants: 81 See pages 59-60, supra. 82 98 Stat. 1837, Title I Section 101(a). 83 H.R. 5743, 98th Cong., 2nd Sess., May 30, 1984. 84 H. Rept. No. 98-1071, 98th Cong., 2nd Sess., September 25, 1984. The conferees expect that the wood utilization research program center located at Purdue University will cooperate with Michigan State University in the research conducted in the Mid-west. Does the phrase "to the extent and in the manner provided for" fully incorporate the joint explanatory statement? Could the President disapprove individual items in the joint explanatory statement allocated from the earmarked $27.3 million? There can be no definitive answer, of course, because the President now lacks the authority to veto items and in the states granting item-veto authority, the clause-"to the extent and in the manner provided for❞—is rarely, if ever, used to refer to itemized allocations. Cases involving the legal effect of similar references, without the item veto, suggest |