On Friday, I posted about ATF’s New Devastating Appropriation Bill – Previous Industry Protections Appear to be Lost. It appears that I may have been in error that those protections were lost, given a previous Governmental Accountability Office (GAO) determination and futurity language being included in the Consolidated and Further Continuing Appropriations Act, 2013.
In the Consolidated and Further Continuing Appropriations Act of 2013, H.R. 933, it declares
Provided, That, in the current fiscal year and any fiscal year thereafter, no funds appropriated under this or any other Act shall be used to pay administrative expenses or the compensation of any officer or employee of the United States to implement an amendment or amendments to section 478.118 of title 27, Code of Federal Regulations, or to change the definition of ‘‘Curios or relics’’ in section 478.11 of title 27, Code of Federal Regulations, or remove any item from ATF Publication 5300.11 as it existed on January 1, 1994:
And,
Provided further, That, in the current fiscal year and any fiscal year thereafter, no funds made available by this or any other Act shall be expended to promulgate or implement any rule requiring a physical inventory of any business licensed under section 923 of title 18, United States Code: Provided further, That, in the current fiscal year and any fiscal year thereafter, no funds authorized or made available under this or any other Act may be used to deny any application for a license under section 923 of title 18, United States Code, or renewal of such a license due to a lack of business activity, provided that the applicant is otherwise eligible to receive such a license, and is eligible to report business income or to claim an income tax deduction for business expenses under the Internal Revenue Code of 1986. (Pg 51 of the Bill)
As reflected above, the NRA fought to have the language “and any fiscal year thereafter,” included in the 2013 appropriations bill, in relation to these provisions.
Previously, in 2007, GAO issued a determination on futurity language in relation to “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 GAO explained that the Congress included a proviso 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.” As the GAO points out in FN 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 (7th 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).
The GAO then cites to U.S. Supreme Court’s decision in Robertson v. Seattle Audubon Society, 503 U.S. 429, 440 (1992) to explain that the Congress has the power to enact permanent legislation in an appropriations act. The opinion goes on to declare, “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.” The GAO then goes on to hold that “[W]e 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.”
It is important to note that the GAO also finds that Congress’s inclusion in an appropriation bill of language which previously included futurity language as “merely underscor[ing] the importance Congress places on the provision” and does not invalidate the futurity language, which remains in effect.
Hence, it appears that unless the Congress in a future appropriations bill or statute removes the limitation on ATF’s ability to use any appropriated money to promulgate or implement any rule regarding 1. requiring FFLs to conduct inventories, 2. denying FFLs, including renewals, for lack of business activity, 3. to change the definition of “Curios and Relics,” or 4. to remove any items from the Curios and Relics list, the ATF remains restricted in these activities.
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