B-316510, Bureau of Alcohol, Tobacco, Firearms, and Explosives--Prohibition in the 2008 Consolidated Appropriations Act, July 15, 2008
The Honorable John Culberson
House of Representatives
In a letter dated
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,
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.
Appropriations acts are by their nature nonpermanent
legislation, and provisions in appropriations acts are presumed effective only
for the covered fiscal year. B-309704,
The most important factor in ascertaining Congress’s intent
is the language of the statute itself.
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
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.
Gary L. Kepplinger
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 (