B-153601, JULY 20, 1964, 44 COMP. GEN. 20

B-153601, JULY 20, 1964, 44 COMP. GEN. 20

PUBLIC UTILITIES - POWER SALES, ETC. - TRANSMISSION FACILITIES CONSTRUCTION - LIMITATIONS. STATUTORY CONSTRUCTION - SPECIFIC V. GENERAL PROVISIONS THE CONSTRUCTION OF A TRANSMISSION FACILITIES SUBSTATION TO PERMIT THE BUREAU OF RECLAMATION TO FURNISH ELECTRIC POWER TO A MUNICIPALITY LOCATED IN AN AREA COVERED BY A BUREAU POWER WHEELING AGREEMENT WITH A PRIVATE UTILITY COMPANY WOULD VIOLATE THE KEATING AMENDMENT, A LIMITATION IN THE PUBLIC WORKS APPROPRIATION ACT, 1964, PROHIBITING THE BUREAU FROM CONSTRUCTING AND REHABILITATING POWER FACILITIES WITHIN AREAS COVERED BY POWER WHEELING SERVICE CONTRACTS PROVIDING FOR SERVICE TO FEDERAL ESTABLISHMENTS, NOTWITHSTANDING THE SUBSTATION CONSTRUCTION WOULD NOT INVOLVE THE CONSTRUCTION OF TRANSMISSION LINES AND THAT THE ITEM HAD BEEN REQUESTED IN THE BUREAU'S BUDGET PRESENTATION TO THE CONGRESS, THE LEGISLATIVE HISTORY OF THE ACT INDICATING THE APPLICABILITY OF THE KEATING AMENDMENT TO WHATEVER TYPE OF TRANSMISSION FACILITIES WERE AUTHORIZED BY THE APPROPRIATION FOR CONSTRUCTION, INCLUDING SUBSTATIONS; THEREFORE, THE CONSTRUCTION OF THE CONTEMPLATED TRANSMISSION FACILITIES SUBSTATION IS PRECLUDED. THE FACT THAT THE CONSTRUCTION OF A TRANSMISSION FACILITIES SUBSTATION WAS INCLUDED AS A LINE ITEM IN THE BUDGET PRESENTATION DOES NOT PRECLUDE THE APPLICATION OF THE KEATING AMENDMENT, A PROVISO ATTACHED TO THE "CONSTRUCTION AND REHABILITATION" FUNDS CONTAINED IN THE PUBLIC WORKS APPROPRIATION ACT, 1964, PROHIBITING THE BUREAU OF RECLAMATION FROM CONSTRUCTING AND REHABILITATING POWER FACILITIES WITHIN AREAS COVERED BY POWER WHEELING SERVICE CONTRACTS WITH PRIVATE UTILITIES PROVIDING FOR SERVICE TO FEDERAL ESTABLISHMENTS, THE RULE OF STATUTORY CONSTRUCTION THAT A GENERAL PROVISION CANNOT SUPERSEDE A SPECIFIC PROVISION NOT APPLYING, FOR EVEN IF THE ITEM FOR THE SUBSTATION SPECIFYING AN AMOUNT HAD BEEN INCLUDED IN THE APPROPRIATION ACT, THE FUNDS MADE AVAILABLE IN THE ACT FOR "CONSTRUCTION AND REHABILITATION" WOULD BE SUBJECT TO THE PROVISO LIMITATION ATTACHED TO THE USE OF THE FUNDS.

TO THE SECRETARY OF THE INTERIOR, JULY 20, 1964:

REFERENCE IS MADE TO OUR LETTER OF FEBRUARY 28, 1964, B-153601, TO YOU, AND YOUR LETTER OF APRIL 4, 1964, AND THE ASSISTANT SECRETARY OF THE INTERIOR'S LETTER OF JUNE 16, 1964, CONCERNING THE PROPOSED USE OF YOUR DEPARTMENT'S APPROPRIATIONS TO CONSTRUCT CERTAIN TRANSMISSION FACILITIES (SUBSTATION) FOR THE PURPOSE OF FURNISHING BUREAU OF RECLAMATION ELECTRIC POWER TO THE CITY OF HILLSBORO (CITY), NORTH DAKOTA. THE QUESTION ARISES BECAUSE OF THE SO-CALLED KEATING AMENDMENT.

THE NORTHERN STATES POWER COMPANY (COMPANY), ADVISED US THAT IT HAS A POWER WHEELING AGREEMENT WITH THE BUREAU OF RECLAMATION (BUREAU), DEPARTMENT OF THE INTERIOR, AND THAT IT IS READY, WILLING AND ABLE TO WHEEL BUREAU POWER TO THE CITY. THUS, THE COMPANY CONTENDS THAT THE PROPOSED CONSTRUCTION OF TRANSMISSION FACILITIES BY THE BUREAU WOULD BE IN VIOLATION OF THE KEATING AMENDMENT.

THE KEATING AMENDMENT WAS INITIALLY ADOPTED AND APPEARED AS A PROVISO IN THE INTERIOR DEPARTMENT APPROPRIATION ACT, 1952, 65 STAT. 248, 255. SINCE ITS ORIGINAL INCLUSION IN 1951 THE KEATING AMENDMENT HAS BEEN INCLUDED AS AN APPROPRIATION LIMITATION IN EVERY BUREAU OF RECLAMATION APPROPRIATION FOR CONSTRUCTION AND REHABILITATION, DOWN TO AND INCLUDING THE PUBLIC WORKS APPROPRIATION ACT, 1964, PUBLIC LAW 88 257, 77 STAT. 844, 848. THE APPROPRIATION PROVISION TOGETHER WITH THE PROVISO (KEATING AMENDMENT) AS IT APPEARS IN THE BUREAU'S CONSTRUCTION AND REHABILITATION APPROPRIATION FOR FISCAL YEAR 1964 READS AS FOLLOWS:

CONSTRUCTION AND REHABILITATION

FOR CONSTRUCTION AND REHABILITATION OF AUTHORIZED RECLAMATION PROJECTS OR PARTS THEREOF (INCLUDING POWER TRANSMISSION FACILITIES) AND FOR OTHER RELATED ACTIVITIES, AS AUTHORIZED BY LAW, TO REMAIN AVAILABLE UNTIL EXPENDED, $185,431,000, OF WHICH $75,000,000 SHALL BE DERIVED FROM THE RECLAMATION FUND: PROVIDED, THAT NO PART OF THIS APPROPRIATION SHALL BE USED TO INITIATE THE CONSTRUCTION OF TRANSMISSION FACILITIES WITHIN THOSE AREAS COVERED BY POWER WHEELING SERVICE CONTRACTS WHICH INCLUDE PROVISION FOR SERVICE TO FEDERAL ESTABLISHMENTS AND PREFERRED CUSTOMERS, 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 FOR WHICH THE SECRETARY OF THE INTERIOR FINDS THE WHEELING AGENCY IS UNABLE OR UNWILLING TO PROVIDE FOR THE INTEGRATION OF FEDERAL PROJECTS OR FOR SERVICE TO A FEDERAL ESTABLISHMENT OR PREFERRED CUSTOMER.

THE ASSISTANT SECRETARY STATES THAT BECAUSE OF THE PENDENCY OF THE MATTER THE BUREAU OF RECLAMATION ALLOWED THE BIDS FOR THE PROPOSED CONSTRUCTION OF THE TRANSMISSION FACILITIES TO EXPIRE THROUGH WAGE RATE EXPIRATION. STATES THAT THE PROTEST OF THE COMPANY DOES NOT FULLY ANALYZE THE APPLICABILITY OF THE KEATING AMENDMENT, PARTICULARLY AS IT RELATES TO THE MATTER OF HILLSBORO.

FIRST, THE ASSISTANT SECRETARY TAKES THE POSITION THAT THE APPROPRIATION PROVISO IN QUESTION (THE KEATING AMENDMENT) ( HAS APPLICATION TO TRANSMISSION LINES ONLY AS DISTINGUISHED FROM OTHER TRANSMISSION FACILITIES SUCH AS SUBSTATIONS. THE ASSISTANT SECRETARY STATES THAT THE LEGISLATIVE HISTORY OF THE AMENDMENT IS REPLETE WITH MANY REFERENCES TO THE FACT THAT THE OBJECTIVE OF THE PROVISO WAS TO ELIMINATE, INSOFAR AS POSSIBLE, DUPLICATING TRANSMISSION LINES. IN SUPPORT OF THIS STATEMENT HE CITES CERTAIN PORTIONS OF THE LEGISLATIVE HISTORY AND REFERS TO, AMONG OTHERS, THE FOLLOWING STATEMENT BY THE SPONSOR OF THE AMENDMENT ON THE FLOOR OF THE HOUSE:

* * * THAT INTENT IS THAT THE GOVERNMENT SHOULD NOT CONSTRUCT DUPLICATING TRANSMISSION LINES WHERE PRIVATE UTILITIES HAVE AGREED TO WHEEL POWER OVER THEIR LINES TO GOVERNMENT CUSTOMERS AT A REASONABLE RATE. * * *

(97 CONG.REC. 4645.)

THE ASSISTANT SECRETARY INDICATES THAT IT IS CLEAR FROM THE LEGISLATIVE HISTORY THAT THE PURPOSE OF THE KEATING AMENDMENT WAS TO ESTABLISH A GENERAL POLICY WHICH WOULD PREVENT THE EXTENSION OF ANY TRANSMISSION LINE INTO ANY NEW TERRITORY COVERED BY A WHEELING AGREEMENT. HE ADVISES THAT IN THE INSTANT MATTER THE BUREAU IS NOT CONSTRUCTING ANY NEW LINES BUT RATHER A SUBSTATION. HE STATES THAT THE CITY WILL CONSTRUCT THE ONLY TRANSMISSION LINES REQUIRED AND WILL CONNECT WITH THE EXISTING BUREAU LINES. THE ASSISTANT SECRETARY IS OF THE VIEW THAT CONSTRUCTION OF THE SUBSTATION DOES NOT DO VIOLENCE TO THE KEATING AMENDMENT, SINCE IT DOES NOT INVOLVE ANY CONSTRUCTION OF LINES BY THE FEDERAL GOVERNMENT. ADVISES THAT THE ONLY PURPOSE OF THE SUBSTATION IS TO PROVIDE A METHOD OF CONNECTION BETWEEN EXISTING BUREAU LINES AND THE LINES OF THE CITY.

THE APPROPRIATION INVOLVED IS SPECIFICALLY AVAILABLE FOR THE CONSTRUCTION OF "TRANSMISSION FACILITIES" AND IS NOT LIMITED TO TRANSMISSION LINES. THE PROVISO ATTACHED TO THE APPROPRIATION PROHIBITS THE USE OF THE APPROPRIATION FOR THE CONSTRUCTION OF "TRANSMISSION FACILITIES" UNDER CERTAIN CONDITIONS. IN OUR OPINION THE PROVISO IS APPLICABLE TO WHATEVER TYPE OF "TRANSMISSION FACILITIES" THE APPROPRIATION IS AVAILABLE TO CONSTRUCT. TO HOLD OTHERWISE WOULD REQUIRE THAT THE TERM "TRANSMISSION FACILITIES" AS USED IN THE APPROPRIATION PROVISION (I.E., BEFORE THE PROVISO) BE GIVEN A DIFFERENT MEANING THAN THE SAME TERM AS USED IN THE ATTACHED PROVISO.

FURTHER, CONCERNING THE PURPOSE OF THE KEATING AMENDMENT (AS MODIFIED BY THE SENATE) NOTE THE FOLLOWING FROM PAGE 23, S.REPT. NO. 499, 82D CONGRESS, 1ST SESSION, ON THE BILL WHICH BECAME THE INTERIOR DEPARTMENT APPROPRIATION ACT, 1952:

THE COMMITTEE IS OF THE OPINION THAT THE KEATING AMENDMENT AS PASSED BY THE HOUSE IS TOO RESTRICTIVE AS APPLIED WITHIN CERTAIN AREAS. THEREFORE, THE COMMITTEE HAS AGREED TO A SUBSTITUTE AMENDMENT WHICH CONTAINS MODIFICATIONS PROVIDING FOR FLEXIBILITY IN APPLICATION AND CLARITY IN INTERPRETATION.

THE MODIFIED AMENDMENT WAS ADOPTED UNANIMOUSLY BY THE COMMITTEE IN ORDER TO IMPLEMENT THE POLICY OF CONGRESS THAT, WITHIN THOSE AREAS WHERE WHEELING-SERVICE CONTRACTS HAVE BEEN EXECUTED, USE WILL BE MADE OF TRANSMISSION FACILITIES OF THE WHEELING AGENCIES WHEREVER POSSIBLE TO AVOID DUPLICATION AND, AT THE SAME TIME, TO PROVIDE FOR THE INTEGRATION OF FEDERAL PROJECTS AND TO PROVIDE AN ADEQUATE AND DEPENDABLE SUPPLY OF POWER TO RURAL ELECTRIC COOPERATIVES, FEDERAL ESTABLISHMENTS, AND OTHER PREFERRED CUSTOMERS. THE MAXIMUM UTILIZATION OF THE FACILITIES OF OTHERS, RATHER THAN THE CONSTRUCTION OF GOVERNMENT TRANSMISSION FACILITIES, WILL RESULT IN THE SAVINGS OF FEDERAL FUNDS AND CRITICAL MATERIALS NEEDED FOR THE DEFENSE EFFORT.

THE COMMITTEE URGES THAT THE PRIVATE UTILITIES MAKE EVERY EFFORT TO BRING ABOUT THE TRANSMISSION OF ELECTRIC ENERGY AT LOW RATES TO ALL CUSTOMERS WHO ARE ENTITLED TO PREFERENCE IN THE USE OF POWER GENERATED BY GOVERNMENT FACILITIES, AND WHO ARE WITHOUT TRANSMISSION FACILITIES.

FROM THE FOREGOING STATEMENT IT WOULD APPEAR THAT THE INTENT OF THE PROVISO WAS TO AVOID DUPLICATION OF ANY TYPE OF TRANSMISSION FACILITIES, AND THAT IT WAS INTENDED THAT THERE BE UTILIZED TO THE MAXIMUM "THE FACILITIES OF OTHERS RATHER THAN THE CONSTRUCTION OF GOVERNMENT TRANSMISSION FACILITIES.'

MOREOVER, WHILE SOME OF THE STATEMENTS MADE IN DISCUSSING THE KEATING AMENDMENT INDICATE THAT THE PROVISO WAS CONCERNED WITH DUPLICATING TRANSMISSION LINES, OTHER STATEMENTS, INCLUDING SOME MADE BY THE SPONSOR OF THE AMENDMENT, REFER TO "TRANSMISSION FACILITIES.' FOR EXAMPLE, THE SPONSOR OF THE AMENDMENT, SENATOR KEATING, THEN A MEMBER OF THE HOUSE, MADE THE FOLLOWING STATEMENTS ON THE FLOOR OF THE HOUSE:

THE GENTLEMAN FROM WASHINGTON IS TO BE COMPLIMENTED ON HIS CLEAR AND CONCISE STATEMENTS REGARDING THE POLICY OF CONGRESS ON THE QUESTION OF THE CONSTRUCTION OF DUPLICATING TRANSMISSION FACILITIES IN THOSE AREAS WHERE THE PRIVATE UTILITIES HAVE MADE REASONABLE CONTRACTS TO WHEEL GOVERNMENT POWER. * * *

(97 CONG.REC. 4645.)

I CALL THE GENTLEMAN'S ATTENTION TO THE FACT THAT IT SEEMS TO ME THIS AMENDMENT COVERS THAT POINT IN THAT IT ONLY PROVIDES THAT THE APPROPRIATION SHALL NOT BE USED FOR THE CONSTRUCTION OF TRANSMISSION FACILITIES WHERE THERE IS A CONTRACT WHICH INCLUDES A PROVISION FOR SERVICE TO FEDERAL ESTABLISHMENTS AND PREFERRED CUSTOMERS. IN OTHER WORDS, IF THE CONTRACT DID NOT MAKE THAT ADEQUATE PROVISION THIS AMENDMENT WOULD NOT APPLY.

(97 CONG.REC. 4647.)

I TAKE IT FROM THE GENTLEMAN'S REMARKS THAT HE WOULD FAVOR MY AMENDMENT BUT HE FEELS THAT IT IS NOT STRONG ENOUGH; IN OTHER WORDS, THAT NO PART OF THIS APPROPRIATION SHOULD BE USED TO INITIATE THE CONSTRUCTION OF TRANSMISSION FACILITIES WITHIN THOSE AREAS COVERED BY POWER WHEELING SERVICE CONTRACTS * * *.

(97 CONG.REC. 4649.)

ALSO NOTE THIS STATEMENT BY MR. WERDEL DURING HOUSE FLOOR DEBATE ON THE PROVISO:

ADOPTION OF THIS AMENDMENT WOULD, FOR EXAMPLE, PREVENT THE BUREAU OF RECLAMATION FROM CONSTRUCTING THE FOLLOWING FACILITIES IN THE CENTRAL VALLEY PROJECT AREA IN CALIFORNIA WHERE A POWER-WHEELING SERVICE CONTRACT HAS BEEN EXECUTED:

KESWICK-SHASTA DAM AREA PUD TRANSMISSION LINE AND SUBSTATION, 115 KILOVOLTS.

FOLSOM-ELVERTA-SACRAMENTO-FOLSOM LOOP LINE AND SUBSTATION, 115 KILOVOLTS.

ELVERTA-SACRAMENTO SWITCHYARDS.

TRACY-LIVERMORE-AMES TRANSMISSION LINE AND SUBSTATIONS.

TRACY-CONTRA COSTA-CLAYTON-YGNACIO TRANSMISSION LINE AND SUBSTATIONS EXTENSION, 69 KILOVOLTS.

(97 CONG.REC. 4655.)

FURTHER IN DISCUSSING THE AMENDMENT ON THE HOUSE FLOOR MR. ENGLE STATED THAT:

MR. CHAIRMAN, THE KEATING AMENDMENT PROVIDES IN SUBSTANCE THAT NO MONEY IN THIS BILL SHALL BE SPENT FOR TRANSMISSION FACILITIES WITHIN AN AREA COVERED BY EXISTING WHEELING CONTRACTS WHICH MAKE PROVISION FOR SERVICE TO FEDERAL INSTALLATIONS AND PREFERENCE CUSTOMERS.

SINCE THE AMENDMENT ONLY PROHIBITS THE INITIATIONS OF NEW TRANSMISSION FACILITIES IT WILL NOT INTERRUPT THE COMPLETION OF THE WEST SIDE TRANSMISSION LINE IN THE CENTRAL VALLEY OF CALIFORNIA, OR THE KESWICK- SPAUD LINE WHICH IS ALREADY STARTED. * * *

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.)

MOREOVER, WHILE THE THEN SECRETARY OF THE INTERIOR, MR. OSCAR B. CHAPMAN, IN TESTIFYING ON THE AMENDMENT IN THE SENATE HEARINGS ON THE INTERIOR DEPARTMENT APPROPRIATIONS FOR 1952 REFERRED TO DUPLICATING TRANSMISSION LINES, HE ALSO STATED THAT (PAGE 51):

IT PUTS THE DEPARTMENT AT THE COMPLETE MERCY OF THE PRIVATE UTILITIES, SINCE IT WOULD PROHIBIT INITIATING CONSTRUCTION BY RECLAMATION OF ALL POWER TRANSMISSION FACILITIES FOR WHATEVER PURPOSE THEY MIGHT SERVE.

THE FOREGOING PORTIONS OF THE LEGISLATIVE HISTORY INDICATE THAT THE KEATING AMENDMENT WAS CONSIDERED APPLICABLE TO ANY TRANSMISSION FACILITIES INCLUDING SUBSTATIONS AND WOULD PROHIBIT THE USE OF THE APPROPRIATION TO CONSTRUCT SUCH FACILITIES UNDER CERTAIN CIRCUMSTANCES. THEREFORE, AND SINCE THE EXPRESS LANGUAGE USED IN THE PROVISO IS "TRANSMISSION FACILITIES," IT IS OUR VIEW THAT THE PROVISO IS APPLICABLE TO ANY AND ALL TRANSMISSION FACILITIES INCLUDING SUBSTATION.

IN ADDITION THE ASSISTANT SECRETARY EXPRESSES THE VIEW THAT CONGRESSIONAL ACTION WITH RESPECT TO THE TRANSMISSION FACILITY INVOLVED HERE HAS PRECLUDED ANY APPLICATION OF THE KEATING AMENDMENT TO IT, SINCE THE CONSTRUCTION OF THE HILLSBORO SUBSTATION WAS SPECIFICALLY APPROVED BY THE CONGRESS. HE ADVISES THAT IN THE HEARINGS BEFORE A HOUSE SUBCOMMITTEE ON APPROPRIATIONS CONSIDERING REQUESTS FOR PUBLIC WORKS APPROPRIATIONS FOR 1964, THE CONSTRUCTION OF THE HILLSBORO SUBSTATION IS SET FORTH AT PAGE 440, SPECIFICALLY AS A LINE ITEM IN THE BUREAU OF RECLAMATION BUDGET REQUEST FOR $23,956,000 FOR THE MISSOURI RIVER BASIN TRANSMISSION CONSTRUCTION PROGRAM FOR THE FISCAL YEAR 1964. HE REPORTS THAT IN PRESENTING THE BUDGET TO THE COMMITTEE, THE ASSISTANT COMMISSIONER OF RECLAMATION SPECIFICALLY ALLUDED TO THE HILLSBORO SUBSTATION AS PART OF THE BUREAU PROGRAM AND THAT THE TOTAL APPROPRIATION TO THE BUREAU FOR FISCAL YEAR 1964 INCLUDED THE REQUESTED AMOUNT FOR THE HILLSBORO SUBSTATION.

THE ASSISTANT SECRETARY'S LETTER CONTINUES---

IT IS CLEAR FROM THE LEGISLATIVE HISTORY THAT CONGRESS INTENDED THE BUREAU TO CONSTRUCT ALL PARTS OF THE MISSOURI RIVER BASIN TRANSMISSION CONSTRUCTION PROGRAM FOR WHICH FUNDS WERE ALLOWED, INCLUDING $18,000 FOR THE HILLSBORO SUBSTATION, NOTWITHSTANDING THE KEATING AMENDMENT. KEATING AMENDMENT PRESCRIBES IN GENERAL TERMS A POLICY GUIDE TO BE FOLLOWED WHERE APPROPRIATE, BUT A GENERAL PROVISION CANNOT SUPERSEDE A SPECIFIC PROVISION. IT IS OLD AND FAMILIAR DOCTRINE THAT WHERE IN THE SAME LEGISLATIVE ACT THERE IS A SPECIFIC PROVISION AND A GENERAL PROVISION --- AND THE GENERAL PROVISION IN ITS MOST COMPREHENSIVE SENSE WOULD INCLUDE THE FORMER--- THE SPECIFIC PROVISION WILL CONTROL AND THE GENERAL PROVISION IS APPLICABLE ONLY WITH RESPECT TO THOSE MATTERS THAT ARE NOT WITHIN THE PURVIEW OF THE SPECIFIC PROVISION. "HOWEVER INCLUSIVE MAY BE THE GENERAL LANGUAGE OF A STATUTE, IT "WILL NOT BE HELD TO APPLY TO A MATTER SPECIFICALLY DEALT WITH IN ANOTHER PART OF THE SAME ENACTMENT * * *" " (MACEVOY V. UNITED STATES, SUPRA, 107; FOURCO GLASS CO. V. TRANSMIRRA PRODUCTS CORP., SUPRA, 228-9 (1957.)

THE ASSISTANT SECRETARY STATES THAT THE FACT THAT NO SPECIFIC LINE ITEM APPEARS IN THE APPROPRIATION ACT ITSELF DOES NOT NEGATE THE APPLICATION OF THE DOCTRINE BECAUSE INTERIOR APPROPRIATION ACTS SINCE FISCAL YEAR 1951 HAVE NOT INCLUDED LINE ITEMS IN EACH MAJOR APPROPRIATION CATEGORY. VIEW THEREOF HE STATES THAT IT IS NECESSARY TO REVIEW THE BUDGET REQUEST OF THE BUREAU TOGETHER WITH A REVIEW OF LEGISLATIVE HEARINGS AND ACTIONS IN ORDER TO DETERMINE THOSE SPECIFIC ITEMS FOR WHICH FUNDS ARE EXPRESSLY MADE AVAILABLE. THE ASSISTANT SECRETARY ADVISES THAT THIS METHOD OF APPROPRIATION WAS INITIATED BY THE CHAIRMAN, HOUSE SUBCOMMITTEE ON APPROPRIATIONS FOR THE INTERIOR DEPARTMENT BY LETTER DATED JULY 8, 1949, AND, IN EFFECT, SUBSEQUENTLY AGREED TO BY THE SENATE APPROPRIATION COMMITTEE.

THE ASSISTANT SECRETARY STATES, IN EFFECT, THAT IN THE MATTER OF HILLSBORO THERE CAN BE NO DOUBT AS TO THE INTENT OF THE CONGRESS, SINCE IT WAS SPECIFICALLY INCLUDED IN THE BUDGET DOCUMENT OF THE BUREAU AND WAS SPECIFICALLY RECOGNIZED AS A PROPER EXPENDITURE BY THE COMMITTEE. IT IS HIS VIEW THAT ANY INTERPRETATION THAT WOULD AVOID THE CONCLUSION THAT THE CONSTRUCTION OF THE HILLSBORO SUBSTATION HAS BEEN SPECIFICALLY AUTHORIZED AND IS AN EXCEPTION TO THE GENERAL PROVISION OF THE KEATING AMENDMENT MUST, PERFORCE, CONCLUDE THAT THE SPECIFIC ACTION OF THE CONGRESS IN PROVIDING FUNDS FOR THE CONSTRUCTION PROGRAM HAS BEEN NEGATED THROUGH THE GENERAL STATEMENT OF POLICY EMBODIED IN THE AMENDMENT. THE ASSISTANT SECRETARY STATES THAT THE SECRETARY OF THE INTERIOR IS NOT IN A POSITION TO ASSUME SUCH A CONCLUSION. HE FURTHER STATES THAT THE GENERAL LAW ON THE SUBJECT, I.E., A SPECIFIC PROVISION WILL CONTROL A GENERAL PROVISION, AND THE CONGRESSIONAL COMMANDS OF 1950 REQUIRE THE SECRETARY TO RECOGNIZE AND CARRY OUT THE MANDATE TO CONSTRUCT THE HILLSBORO SUBSTATION.

THE ASSISTANT SECRETARY STATES THAT IT IS EVIDENT FROM THE LEGISLATIVE HISTORY THAT WHEN CONGRESS CONSIDERED THE 1964 APPROPRIATION REQUEST OF THE BUREAU OF RECLAMATION--- INCLUDING THE $180,000 FOR THE HILLSBORO SUBSTATION--- IT WAS MOST AWARE OF THE KEATING AMENDMENT. HE ADVISES THAT THIS SPECIFIC ITEM WAS PRESENTED AS A LINE ITEM REQUEST IN THE BUREAU OF RECLAMATION BUDGET, WAS DISCUSSED DURING THE COURSE OF THE BUDGET PRESENTATION AND WAS ALLOWED AS PART OF THE GENERAL APPROPRIATION. STATES THAT ANY EX POST FACTO APPLICATION OF THE KEATING AMENDMENT TO DENY THE USE OF THESE FUNDS FOR THE PARTICULAR PURPOSE WOULD, IN EFFECT, DESTROY THE APPROPRIATION PROCEDURE THAT HAS BEEN EFFECTIVELY AND EFFICIENTLY EMPLOYED FOR THE PAST 14 YEARS.

AS INDICATED ABOVE, THE SO-CALLED KEATING AMENDMENT APPEARS AS A PROVISO ATTACHED TO THE APPROPRIATION CONTAINING FUNDS FOR THE BUREAU OF RECLAMATION FOR "CONSTRUCTION AND REHABILITATION" FOR FISCAL YEAR 1964. PROVISO IS GENERALLY CONSIDERED AN EXCEPTION OR LIMITATION TO THE SECTION OR LANGUAGE OF THE STATUTE IN WHICH IT APPEARS OR TO WHICH IT REFERS (UNITED STATES V. MARYLAND CASUALTY COMPANY, 49 F.2D 556), AND ITS USUAL PURPOSE IS TO QUALIFY, RESTRICT OR LIMIT SOME MATTER IN THE SECTION OR PART OF THE STATUTE TO WHICH IT IS ATTACHED OR TO WHICH IT REFERS.

THE PROVISO INVOLVED HERE PROHIBITS THE USE OF THE APPROPRIATION ($185,431,000) TO WHICH IT IS ATTACHED TO INITIATE THE CONSTRUCTION OF TRANSMISSION FACILITIES "WITHIN THOSE AREAS COVERED BY POWER WHEELING SERVICE CONTRACTS WHICH INCLUDE PROVISION FOR SERVICE TO FEDERAL ESTABLISHMENTS AND PREFERRED CUSTOMERS," WITH CERTAIN EXCEPTIONS NOT PERTINENT HERE. THUS, EVEN IF A LINE ITEM SPECIFYING THE AMOUNT AVAILABLE FOR THE CONSTRUCTION OF THE HILLSBORO SUBSTATION APPEARED IN THE APPROPRIATION PROVISION IN QUESTION THE AVAILABILITY OF THE FUNDS CONTAINED THEREIN FOR SUCH A PURPOSE WOULD BE SUBJECT TO THE TERMS OF THE PROVISO. HENCE, THE AVAILABILITY OF THE APPROPRIATION INVOLVED TO CONSTRUCT THE HILLSBORO SUBSTATION WOULD NOT BE AFFECTED BY THE PRESENCE OF A LINE ITEM IN SUCH APPROPRIATION FOR THIS TRANSMISSION FACILITY. THE RULE OF STATUTORY CONSTRUCTION RELIED ON BY THE ASSISTANT SECRETARY TO THE EFFECT THAT A GENERAL PROVISION CANNOT SUPERSEDE A SPECIFIC PROVISION WOULD NOT BE FOR APPLICATION IN THE INSTANT CASE.

CONCERNING THE CONTENTION THAT THERE CAN BE NO DOUBT AS TO THE INTENT OF CONGRESS IN THE MATTER OF HILLSBORO SUBSTATION SINCE FUNDS THEREFOR WERE SPECIFICALLY INCLUDED IN THE BUDGET DOCUMENT AND WERE SPECIFICALLY RECOGNIZED AS A PROPER EXPENDITURE BY THE CONGRESS, WE FOUND NOTHING IN THE APPROPRIATION ACT INVOLVED OR IN ITS LEGISLATIVE HISTORY TO INDICATE THAT THE CONGRESS INTENDED THAT THE FUNDS MADE AVAILABLE FOR THE CONSTRUCTION OF TRANSMISSION FACILITIES IN THE APPROPRIATION IN QUESTION COULD BE USED FOR SUCH PURPOSE WITHOUT REGARD TO THE PROVISO ATTACHED THERETO. IT IS OUR VIEW THAT THE PROVISO MAKES IT CLEAR THAT THE CONGRESS INTENDED TO, AND DID, PROHIBIT THE USE OF THE FUNDS IN QUESTION FOR CONSTRUCTION OF TRANSMISSION FACILITIES IN AREAS COVERED BY WHEELING AGREEMENTS, UNLESS CONSTRUCTION OF THE FACILITIES CAME WITHIN ONE OF THE EXCEPTIONS IN THE PROVISO.

MOREOVER, FROM THE RECORD BEFORE US IT WOULD BE FAIR TO ASSUME (1) THAT YOUR DEPARTMENT REQUESTED FUNDS FOR THE HILLSBORO SUBSTATION BECAUSE IT HAD DETERMINED THAT WHEELING WAS NOT AVAILABLE ON SATISFACTORY TERMS UNDER THE EXISTING WHEELING AGREEMENT, AND (2) THAT THE CONGRESS ASSUMED, IN LIGHT OF YOUR DEPARTMENT'S REQUEST FOR FUNDS FOR THE HILLSBORO SUBSTATION, THAT WHEELING ARRANGEMENTS COULD NOT BE MADE. WE FOUND NOTHING TO INDICATE THAT THE CONGRESS INTENDED THE USE OF THE APPROPRIATION IN QUESTION TO CONSTRUCT THE HILLSBORO SUBSTATION, REGARDLESS OF WHETHER WHEELING ARRANGEMENTS COULD HAVE BEEN MADE, AND DESPITE THE PROVISO IN QUESTION (KEATING AMENDMENT). IN THIS CONNECTION WE NOTE THAT THE HOUSE AND SENATE APPROPRIATION COMMITTEES RECOMMENDED THAT THERE BE DELETED FROM THE BUDGET ESTIMATES $305,000 BUDGETED BY THE BUREAU FOR THE LUSK-OSAGE TRANSMISSION FACILITIES IN SOUTH DAKOTA, SINCE IT WAS ANTICIPATED A SATISFACTORY WHEELING AGREEMENT COULD BE REACHED. SEE PAGE 48, H.REPT. NO. 902, AND PAGE 35, S.REPT. NO. 746, ON PUBLIC WORKS APPROPRIATION BILL, 1964. PRESUMABLY IT WOULD HAVE DELETED THE AMOUNT BUDGETED FOR THE HILLSBORO SUBSTATION IF AT THE TIME IT HAD ANTICIPATED THAT A SATISFACTORY WHEELING AGREEMENT COULD BE REACHED. IN ANY EVENT, IT IS CLEAR THAT THE PROVISO PROHIBITS THE USE OF THE APPROPRIATION IN QUESTION FOR ANY TRANSMISSION FACILITIES WHETHER OR NOT BUDGETED FOR IN THE BUDGET JUSTIFICATION OR ESTIMATES, IN CASES FALLING WITHIN THE PURVIEW OF THE PROVISO.

IN VIEW OF THE FOREGOING YOU ARE ADVISED THAT ALL MONEYS IN THE BUREAU OF RECLAMATION APPROPRIATION FOR "CONSTRUCTION AND REHABILITATION" IN THE PUBLIC WORKS APPROPRIATION ACT, 1964, ARE SUBJECT TO, AND MAY BE EXPENDED ONLY IN ACCORDANCE WITH, THE TERMS OF THE PROVISO (KEATING AMENDMENT) ATTACHED TO THAT APPROPRIATION. THUS, ON THE BASIS OF THE PRESENT RECORD THE PROVISO WOULD PRECLUDE THE USE OF THE APPROPRIATION IN QUESTION TO CONSTRUCT THE HILLSBORO SUBSTATION.