B-153601, SEP. 24, 1964

B-153601, SEP. 24, 1964

TO THE HONORABLE SECRETARY OF THE INTERIOR:

BY LETTER DATED AUGUST 10, 1964, THE ASSISTANT SECRETARY OF THE INTERIOR REQUESTED RECONSIDERATION OF OUR DECISION OF JULY 20, 1964, B 153601, CONCERNING THE PROPOSED USE OF YOUR DEPARTMENT'S APPROPRIATIONS TO CONSTRUCT CERTAIN TRANSMISSION FACILITIES FOR THE PURPOSE OF FURNISHING BUREAU OF RECLAMATION ELECTRIC POWER TO THE CITY OF HILLSBORO, NORTH DAKOTA.

OUR DECISION OF JULY 20 HELD THAT THE KEATING AMENDMENT, WHICH HAS BEEN INCLUDED AS AN APPROPRIATION LIMITATION IN EVERY BUREAU OF RECLAMATION APPROPRIATION FOR CONSTRUCTION AND REHABILITATION SINCE THE INTERIOR DEPARTMENT APPROPRIATION ACT, 1952, 65 STAT. 248, 255, APPLIED TO ANY TRANSMISSION FACILITIES, INCLUDING SUBSTATIONS, AND THAT IT PRECLUDED THE USE OF FUNDS APPROPRIATED FOR THE BUREAU OF RECLAMATION UNDER THE HEADING "CONSTRUCTION AND REHABILITATION" IN THE PUBLIC WORKS APPROPRIATION ACT, 1964, PUB.L. 88-257, 77 STAT. 844, 848, FOR THE CONSTRUCTION OF A PROPOSED SUBSTATION TO FURNISH BUREAU OF RECLAMATION ELECTRIC POWER TO THE CITY OF HILLSBORO, NORTH DAKOTA.

THE LETTER OF AUGUST 10 FROM THE ASSISTANT SECRETARY REQUESTS RECONSIDERATION OF OUR DECISION BECAUSE OF THE BELIEF THAT IT WAS BASED UPON THREE ASSUMPTIONS WHICH, THE LETTER STATES,"DO NOT ACCORD WITH THE MEANING OF THE KEATING AMENDMENT NOR WITH THE INTENT OF CONGRESS IN PASSING THE PUBLIC WORKS APPROPRIATION ACT OF 1964.' THE SPECIFIC ASSUMPTIONS ARE STATED AS FOLLOWS:

"I. THAT THE KEATING AMENDMENT APPLIES TO AN APPROPRIATION FOR AN AUXILIARY DEVICE (SUCH AS THE HILLSBORO SUBSTATION), WHICH WILL PERMIT THE BUREAU TO MAKE FULL AND EFFICIENT USE OF A FEDERAL TRANSMISSION LINE ALREADY IN PLACE;

"II. THAT CONGRESS CANNOT, ADVISEDLY AND DELIBERATELY, BUT WITHOUT EXPRESS WORDS OF WAIVER, MAKE PROVISION FOR FEDERAL CONSTRUCTION OF TRANSMISSION FACILITIES IN AN APPROPRIATION BILL TO WHICH THE KEATING AMENDMENT IS APPENDED;

"III. THAT CONGRESS DID NOT INTEND, IN THE CASE OF THE HILLSBORO SUBSTATION, TO ALLOW FEDERAL CONSTRUCTION, THE KEATING AMENDMENT TO THE CONTRARY NOTWITHSTANDING.'

IN THE DISCUSSION OF THE FIRST ASSUMPTION, THE ASSISTANT SECRETARY CONTENDS THAT THE KEATING AMENDMENT IS INTENDED TO APPLY ONLY TO FUNDS APPROPRIATED TO START CONSTRUCTION OF A NEW TRANSMISSION LINE, TOGETHER WITH AUXILIARY DEVICES, AND NOT TO FUNDS APPROPRIATED FOR AN AUXILIARY DEVICE ALONE--- IN THIS CASE, THE HILLSBORO SUBSTATION--- WHICH WILL PERMIT FULL AND EFFICIENT USE OF A FEDERAL TRANSMISSION LINE ALREADY IN PLACE. IT IS FURTHER CONTENDED THAT SUCH A CASE FALLS WITHIN THE FIRST EXCEPTION TO THE KEATING AMENDMENT, WHICH PROVIDES THAT IT WILL NOT APPLY TO "TRANSMISSION FACILITIES FOR WHICH CONSTRUCTION FUNDS HAVE BEEN HERETOFORE APPROPRIATED.'

THERE IS NOTHING IN THE WORDING OF THE KEATING AMENDMENT WHICH WOULD LIMIT ITS APPLICATION TO WHOLLY NEW TRANSMISSION FACILITIES, OR PREVENT ITS APPLICATION TO ADDITIONS TO OR EXTENSIONS OF EXISTING FACILITIES. THE WORDING IS CLEAR, AND APPLIES TO ANY AND ALL TRANSMISSION FACILITIES WITHIN AREAS COVERED BY WHEELING CONTRACTS, OTHER THAN THOSE ENCOMPASSED BY THE SPECIFIC EXCEPTIONS IN THE AMENDMENT. IN THE DISCUSSION OF THE AMENDMENT ON THE FLOOR OF THE HOUSE DURING THE DEBATE ON THE 1952 APPROPRIATION ACT IN WHICH IT FIRST APPEARED, MR. ENGLE STATED THAT:

"ANOTHER ITEM PROVIDED FOR IN THIS BILL IS THE TRACY-CONTRA COSTA CLAYTON -YGNACIO TRANSMISSION LINE AND SUBSTATIONS. THE EXISTING LINES PASS OVER THE GOVERNMENT CAMP AND PREFERENCE CUSTOMERS TO BE SERVED BY THESE FACILITIES. ONLY SUBSTATIONS ARE REQUIRED. BUT THIS AMENDMENT WOULD PROHIBIT THE BUILDING OF THOSE FACILITIES. * * *" (97 CONG.REC. 4655.)

THUS IT APPEARS THAT THE AMENDMENT WAS INTENDED TO APPLY TO PROPOSED ADDITIONS TO AND EXTENSIONS OF EXISTING LINES.

WITH RESPECT TO THE FIRST EXCEPTION TO THE AMENDMENT, IT IS NOTED THAT DURING THE SENATE HEARINGS ON THE 1952 APPROPRIATION ACT, A VAST AMOUNT OF TESTIMONY WAS PRESENTED TO THE EFFECT THAT THE AMENDMENT AS PASSED BY THE HOUSE WOULD, AMONG OTHER THINGS, STOP OR PREVENT THE START OF CONSTRUCTION ON A LARGE NUMBER OF TRANSMISSION FACILITIES THEN UNDER CONSTRUCTION OR FOR WHICH CONSTRUCTION FUNDS HAD BEEN APPROPRIATED AND WHICH WERE URGENTLY NEEDED. THE SENATE COMMITTEE AMENDED THE AMENDMENT BY ADDING THERETO THE THREE EXCEPTIONS NOW APPEARING THEREIN FOR THE PURPOSE OF CLARIFYING THE AMENDMENT AND OVERCOMING THE OBJECTION PRESENTED IN THE TESTIMONY. THE SOLE PURPOSE OF THE FIRST EXCEPTION WAS TO PERMIT THE COMPLETION OF TRANSMISSION FACILITIES THEN UNDER CONSTRUCTION AND THOSE FOR WHICH CONSTRUCTION FUNDS HAD PREVIOUSLY BEEN APPROPRIATED, EVEN THOUGH ACTUAL CONSTRUCTION THEREOF HAD NOT BEEN STARTED. IN THE DISCUSSION OF THE KEATING AMENDMENT ON THE FLOOR OF THE SENATE DURING THE DEBATE ON THE 1952 APPROPRIATION ACT, MR. CASE MADE THE FOLLOWING STATEMENT CONCERNING THE PURPOSE OF THE EXCEPTIONS ADDED THERETO BY THE SENATE COMMITTEE:

"* * * THE COMMITTEE AMENDMENT TAKES THE LANGUAGE OF THE KEATING AMENDMENT, MAKES NO CHANGE IN IT UP TO THE LAST WORD "CUSTOMERS," BUT ADDS THE FOLLOWING WORDS,"EXCEPT THOSE TRANSMISSION FACILITIES FOR WHICH CONSTRUCTION FUNDS HAVE BEEN HERETOFORE APPROPRIATED, THOSE FACILITIES WHICH ARE NECESSARY TO CARRY OUT THE TERMS OF SUCH CONTRACTS OR THOSE FACILITIES WHICH THE WHEELING AGENCY IS UNABLE OR UNWILLING TO PROVIDE FOR THE INTEGRATION OF FEDERAL PROJECTS OR FOR SERVICE TO FEDERAL ESTABLISHMENT OR PREFERRED CUSTOMER.'

"MR. PRESIDENT, I MAY SAY AT THE OUTSET THAT I BELIEVE THE ADDITIONAL WORDS PROVIDED BY THE COMMITTEE ARE DEFINITELY AN IMPROVEMENT ON THE ORIGINAL KEATING AMENDMENT, BECAUSE THEY RECOGNIZE THE REALITIES OF THE SITUATION, NAMELY, THAT THERE ARE SOME INSTANCES IN WHICH FUNDS HAVE BEEN HERETOFORE APPROPRIATED FOR TRANSMISSION LINES NOW UNDER CONSTRUCTION, THE COMPLETION OF WHICH SHOULD BE PERMITTED AS A PRACTICAL MATTER, AND IN WHICH THE SUBSTATIONS ARE NECESSARY. * * *" (97 CONG.REC. 8056.)

OBVIOUSLY, ONCE A PROPERLY AUTHORIZED TRANSMISSION FACILITY HAS BEEN COMPLETED TO THE EXTENT AUTHORIZED, ANY EXTENSION THEREOF OR ADDITION THERETO WOULD BE A NEW TRANSMISSION FACILITY SUBJECT TO THE KEATING AMENDMENT. IN VIEW OF THE LARGE NUMBER AND VAST EXTENT OF EXISTING BUREAU OF RECLAMATION TRANSMISSION FACILITIES, THE INTERPRETATION OF THE KEATING AMENDMENT AS PROPOSED BY THE ASSISTANT SECRETARY IN CONNECTION WITH THE FIRST ASSUMPTION STATED IN THE LETTER OF AUGUST 10 WOULD RENDER THE AMENDMENT ALMOST MEANINGLESS AND INEFFECTIVE.

CONCERNING THE SECOND ASSUMPTION SET FORTH IN THE LETTER OF AUGUST 10, WE HAVE NO DIFFICULTY WITH THE PREMISE THAT THE CONGRESS CAN, ADVISEDLY AND DELIBERATELY, MAKE PROVISION FOR FEDERAL CONSTRUCTION OF TRANSMISSION FACILITIES IN AN APPROPRIATION BILL TO WHICH THE KEATING AMENDMENT IS APPENDED. HOWEVER, IN ORDER TO DETERMINE WHETHER THE CONGRESS HAS IN FACT DONE SO, IT IS NECESSARY TO ASCERTAIN THE INTENT OF THE CONGRESS IN THE PARTICULAR INSTANCE. OBVIOUSLY, THE CLEAREST EXPRESSION OF A CONGRESSIONAL INTENT TO PERMIT CONSTRUCTION OF A TRANSMISSION FACILITY NOTWITHSTANDING THE PROHIBITION CONTAINED IN THE KEATING AMENDMENT WOULD BE THE INCLUSION IN THE APPROPRIATION ACT OF LANGUAGE SPECIFICALLY AND EXPRESSLY SO PROVIDING. IN THE ABSENCE OF SUCH AN EXPRESS AND SPECIFIC PROVISION, A CLEAR SHOWING IN THE LEGISLATIVE HISTORY OF THE ACT THAT THE PARTICULAR FACILITY WAS CALLED TO THE ATTENTION OF THE CONGRESS; THAT THE CONGRESS WAS ADVISED THAT THE FACILITY WAS TO BE CONSTRUCTED IN AN AREA COVERED BY A POWER WHEELING CONTRACT AND HENCE WAS SUBJECT TO THE PROHIBITION CONTAINED IN THE KEATING AMENDMENT; THAT FOR SPECIFIED REASONS IT WAS DEEMED DESIRABLE OR NECESSARY TO CONSTRUCT THE FACILITY NOTWITHSTANDING THE PROHIBITION; AND THAT THE CONGRESS, WITH FULL KNOWLEDGE OF THE CIRCUMSTANCES, SPECIFICALLY INCLUDED IN THE APPROPRIATION THE FUNDS REQUESTED FOR THAT FACILITY, WOULD APPEAR TO BE AN ADEQUATE INDICATION OF CONGRESSIONAL INTENT TO EXEMPT THE PARTICULAR FACILITY FROM THE EFFECT OF THE AMENDMENT. HOWEVER, THE MERE FACT THAT A PARTICULAR TRANSMISSION FACILITY IS INCLUDED IN THE BREAKDOWN OF THE LUMP SUM APPROPRIATION IN THE COMMITTEE REPORTS OR HEARINGS IS NOT, STANDING ALONE, SUFFICIENT TO INDICATE CONGRESSIONAL INTENT TO OVERRIDE THE KEATING AMENDMENT. IT IS APPARENT THAT A TRANSMISSION FACILITY PROPOSED TO BE CONSTRUCTED IN AN AREA NOT COVERED BY A WHEELING CONTRACT WOULD NOT BE SUBJECT TO THE AMENDMENT. CONSEQUENTLY, IF A FACILITY IS SO INCLUDED AND NO MENTION IS MADE TO THE CONGRESS OF A WHEELING AGREEMENT IN THAT AREA, WE ARE MORE JUSTIFIED IN ASSUMING THAT THE CONGRESS BELIEVED THE AMENDMENT TO BE NOT APPLICABLE BECAUSE OF THE LACK OF A WHEELING AGREEMENT IN THE AFFECTED AREA THAN WE ARE IN ASSUMING AN INTENT TO OVERRIDE THE AMENDMENT. IT IS SIGNIFICANT THAT IN EACH OF THE EXAMPLES SET FORTH IN THE ASSISTANT SECRETARY'S DISCUSSION OF THE SECOND ASSUMPTION AS EVIDENCE OF THE ABILITY OF THE CONGRESS TO EXEMPT A FACILITY FROM THE AMENDMENT, THE CONGRESS WAS APPRISED OF THE EXISTENCE OF THE WHEELING CONTRACT AND THE APPLICABILITY OF THE KEATING AMENDMENT BUT NEVERTHELESS, FOR WHAT WERE DEEMED ADEQUATE REASONS, SPECIFICALLY INCLUDED IN THE APPROPRIATION THE FUNDS REQUESTED FOR THAT PARTICULAR FACILITY. IT SHOULD ALSO BE NOTED FROM THE EXAMPLES SHOWN UNDER THE THIRD ASSUMPTION THAT WHEN THE CONGRESS WAS APPRISED OF THE EXISTENCE OF WHEELING AGREEMENTS PRIOR TO ENACTMENT OF AN APPROPRIATION ACT, IT SPECIFICALLY DELETED THE AFFECTED FACILITIES. MAY BE THAT IF THE CONGRESS HAD BEEN ADVISED OF THE SITUATION PERTAINING TO THE HILLSBORO SUBSTATION IT LIKEWISE WOULD HAVE DELETED THAT ITEM.

INSOFAR AS THE HILLSBORO SUBSTATION IS CONCERNED, A THOROUGH EXAMINATION OF THE LEGISLATIVE HISTORY OF THE PERTINENT PROVISION OF THE PUBLIC WORKS APPROPRIATION ACT, 1964, PUB.L. 88-257, 77 STAT. 844, 848, HAS FAILED TO DISCLOSE ANY INDICATION THAT THE CONGRESS WAS IN ANY WAY APPRISED OF THE EXISTENCE OF A WHEELING CONTRACT IN THE AREA TO BE SERVED BY THAT SUBSTATION AND THAT THE KEATING AMENDMENT THEREFORE WAS INVOLVED. IN VIEW THEREOF, WE CANNOT AGREE WITH THE CONTENTION THAT INCLUSION OF FUNDS FOR THAT SUBSTATION IN THE BREAKDOWN OF THE LUMP SUM APPROPRIATION CONSTITUTES AUTHORITY TO CONSTRUCT THE SUBSTATION NOTWITHSTANDING THE APPLICABILITY OF THE KEATING AMENDMENT THERETO.