B-222097, MAY 22, 1986, 65 COMP.GEN. 588

B-222097, MAY 22, 1986, 65 COMP.GEN. 588

STATUTORY CONSTRUCTION - PERMANENCY SECTION 8097 OF THE DEPARTMENT OF DEFENSE APPROPRIATIONS ACT 1986, PUB.L. NO. 99-190, 99 STAT. 1185, 1219 (1986), DOES NOT CONSTITUTE PERMANENT LEGISLATION. A PROVISION CONTAINED IN AN APPROPRIATION ACT MAY NOT BE CONSTRUED AS PERMANENT LEGISLATION UNLESS THE LANGUAGE OR NATURE OF THE PROVISION MAKES IT CLEAR THAT SUCH WAS THE INTENT OF THE CONGRESS. HERE, THE PROVISION IN QUESTION INCLUDES NO WORDS OF FUTURITY AND THE PROVISION IS NOT UNRELATED TO THE PURPOSES OF THE ACT. FURTHER THE PROVISION IS NOT RENDERED INEFFECTUAL BY A FINDING THAT IT IS NOT PERMANENT.

MATTER OF: PERMANENCY OF WEAPON TESTING MORATORIUM CONTAINED IN FISCAL YEAR 1986-- APPROPRIATIONS ACT, MAY 22, 1986:

THIS DECISION IS IN RESPONSE TO A REQUEST FROM REPRESENTATIVES LES AUCOIN, GEORGE E. BROWN, JR., NORMAN D. DICKS, AND LAWRENCE COUGHLIN, FOR THE OPINION OF THIS OFFICE AS TO WHETHER SECTION 8097 OF THE DEPARTMENT OF DEFENSE APPROPRIATIONS ACT, 1986, PUB.L. NO. 99-190, 99 STAT. 1185, 1219 (1986), CONSTITUTES PERMANENT LEGISLATION. SECTION 8097 PROHIBITS THE USE OF APPROPRIATED FUNDS TO CARRY OUT A TEST OF AN ANTI-SATELLITE WEAPON AGAINST AN OBJECT IN SPACE UNTIL THE PRESIDENT MAKES CERTAIN CERTIFICATIONS TO CONGRESS. AS SET FORTH BELOW, WE CONCLUDE THAT SECTION 8097 DOES NOT CONSTITUTE PERMANENT LEGISLATION, BUT RATHER IS APPLICABLE ONLY TO FUNDS MADE AVAILABLE BY THE DOD APPROPRIATIONS ACT, 1986, OR OTHER LEGISLATION PROVIDING FUNDING FOR ANTI-SATELLITE WEAPON TESTING DURING FISCAL YEAR 1986.

FUNDING IS PROVIDED FOR THE TESTING OF ANTI-SATELLITE WEAPONS IN THE DEPARTMENT OF DEFENSE APPROPRIATIONS ACT, 1986, IN TITLE IV, "RESEARCH, DEVELOPMENT, TEST, AND EVALUATION, AIR FORCE." THE FUNDS PROVIDED ARE 2- YEAR FUNDS, "TO REMAIN AVAILABLE FOR OBLIGATION UNTIL SEPTEMBER 30, 1987." 99 STAT. 1200. HOWEVER, SECTION 8097 OF THAT ACT READS AS FOLLOWS:

SEC. 8097. NONE OF THE FUNDS APPROPRIATED BY THIS ACT OR ANY OTHER ACT MAY BE OBLIGATED OR EXPENDED TO CARRY OUT A TEST OF THE SPACE DEFENSE SYSTEM (ANTI-SATELLITE WEAPON) AGAINST AN OBJECT IN SPACE UNTIL THE PRESIDENT CERTIFIES TO CONGRESS THAT THE SOVIET UNION HAS CONDUCTED, AFTER OCTOBER 3, 1985, A TEST AGAINST AN OBJECT IN SPACE OF A DEDICATED ANTI- SATELLITE WEAPON.

THERE IS A PRESUMPTION THAT ANY PROVISION IN AN ANNUAL APPROPRIATION ACT IS EFFECTIVE ONLY FOR THE COVERED FISCAL YEAR. 31 U.S.C. SEC. 1301(C); 20 COMP.GEN. 322, 325 (1940). SEE ALSO PUB.L. NO. 99-190, 90 STAT. 1185, 1204 (1985) (SECTION 8008 OF DOD APPROPRIATIONS ACT, 1986). THIS IS BECAUSE APPROPRIATION ACTS ARE BY THEIR NATURE NON PERMANENT LEGISLATION. THUS, UNLESS OTHERWISE SPECIFIED, THE PROVISIONS OF AN APPROPRIATION ACT FOR A GIVEN FISCAL YEAR EXPIRE AT THE END OF THAT FISCAL YEAR. ACCORDINGLY, IT HAS BEEN THE LONGSTANDING POSITION OF THIS OFFICE THAT A PROVISION CONTAINED IN AN APPROPRIATION ACT MAY NOT BE CONSTRUED AS PERMANENT LEGISLATION UNLESS THE LANGUAGE OR NATURE OF THE PROVISION MAKES IT CLEAR THAT SUCH WAS THE INTENT OF THE CONGRESS. 62 COMP.GEN. 54, 56 (1982); 10 COMP.GEN. 120, 121 (1930).

PERMANENCY IS INDICATED MOST CLEARLY WHEN THE PROVISION IN QUESTION INCLUDES "WORDS OF FUTURITY" SUCH AS "HEREAFTER" OR "AFTER THE DATE OF APPROVAL OF THIS ACT." SEE, E.G., 36 COMP.GEN. 434 1956). HERE, SECTION 8097 INCLUDES NO SUCH WORDS OF FUTURITY. IN OUR VIEW, THE PHRASE, "THIS ACT OR ANY OTHER ACT," DOES NOT CONSTITUTE WORDS OF FUTURITY. INTERPRETING SIMILAR LANGUAGE IN THE PAST, WE HELD THAT THE WORDS "OR ANY OTHER ACT" DO NOT INDICATE FUTURITY, BUT MERELY EXTEND THE EFFECT OF THE PROVISION TO OTHER APPROPRIATIONS AVAILABLE IN THAT FISCAL YEAR. B-145492, SEPTEMBER 21, 1976. SEE ALSO B-208705, SEPTEMBER 14, 1982. ACCORDINGLY, IN THE CASE AT HAND, THE INCLUSION IN SECTION 8097 OF THE PHRASE "THIS ACT OR ANY OTHER ACT" DOES NOT MAKE THE ANTI-SATELLITE WEAPON TESTING RESTRICTION PERMANENT, BUT RATHER MERELY EXTENDS THE APPLICABILITY OF THE RESTRICTION TO ANY OTHER FUNDS AVAILABLE DURING FISCAL YEAR 1986, IN ADDITION TO FUNDS MADE AVAILABLE BY THE DEPARTMENT OF DEFENSE APPROPRIATIONS ACT, 1986, FOR ANTI SATELLITE WEAPON TESTING. THESE FUNDS WOULD INCLUDE CARRY-OVER FUNDS WHICH WERE AVAILABLE FROM PRIOR FISCAL YEARS, AS WELL AS FUNDS TRANSFERRED FROM OTHER APPROPRIATION ACCOUNTS UNDER EXISTING AUTHORITY OR ADDITIONAL FUNDS MADE AVAILABLE DURING FISCAL YEAR 1986. OF COURSE, SINCE THE FUNDS FOR ANTI-SATELLITE WEAPON TESTING PROVIDED BY THE FISCAL YEAR 1986 APPROPRIATION ACT ARE AVAILABLE UNTIL SEPTEMBER 30, 1987, THE RESTRICTION ON USE OF THOSE PARTICULAR FUNDS WOULD CONTINUE TO APPLY UNTIL THEIR EXPIRATION.

THE USE OF WORDS OF FUTURITY IS NOT ESSENTIAL FOR AN APPROPRIATION ACT PROVISION TO CONSTITUTE PERMANENT LEGISLATION "IF THE PERMANENT CHARACTER OF THE LEGISLATION IS OTHERWISE CLEARLY INDICATED." 9 COMP.GEN. 248, 249 (1929). ONE INDICATION OF PERMANENCE IS WHEN THE PROVISION IS OF A GENERAL NATURE, BEARING NO RELATION TO THE OBJECTS OF THE APPROPRIATION ACT. 62 COMP.GEN. 54, 56 (1982); 26 COMP.GEN. 354, 357 (1946). HOWEVER, IN THE INSTANT CASE, SECTION 8097 IS CLEARLY RELATED TO THE OBJECTS OF THE DEPARTMENT OF DEFENSE APPROPRIATIONS ACT, 1986. IT RESTRICTS FUNDING FOR TESTING OF THE SPACE DEFENSE SYSTEM, FOR WHICH FUNDS ARE PROVIDED IN THE ACT. SEE TITLE IV, "RESEARCH, DEVELOPMENT, TEST AND EVALUATION, AIR FORCE," 99 STAT. 1200; H.R. REP. NO. 332, 99TH CONG., 1ST SESS. 333 (1985).

PERMANENCY OF AN APPROPRIATION ACT PROVISION MAY ALSO BE INDICATED WHEN THE PROVISION WOULD BE RENDERED FUTILE OR MEANINGLESS WERE IT NOT INTERPRETED TO BE PERMANENT LEGISLATION. 62 COMP.GEN. 54, 56 (1982). THIS IS A COROLLARY OF THE RULE OF STATUTORY CONSTRUCTION THAT A STATUTE SHOULD NOT BE CONSTRUED IN A WAY WHICH RENDERS IT WHOLLY INEFFECTIVE. SEE B-214058, FEBRUARY 1, 1985. HOWEVER, THIS PRINCIPLE IS NOT APPLICABLE IN THE CASE AT HAND. EVEN THOUGH NOT CONSTRUED TO BE PERMANENT, SECTION 8097 IS EFFECTIVE AS A MORATORIUM ON TESTING AT LEAST DURING FISCAL YEAR 1986.

THEREFORE, BASED ON THE LANGUAGE AND NATURE OF SECTION 8097, WE CONCLUDE THAT IT DOES NOT CONSTITUTE PERMANENT LEGISLATION. WE CONCLUDE THAT THE ANTI-SATELLITE WEAPON TESTING RESTRICTION IS APPLICABLE ONLY TO FUNDS MADE AVAILABLE BY THE DOD APPROPRIATIONS ACT, 1986, OR OTHER LEGISLATION PROVIDING FUNDING FOR ANTI-SATELLITE WEAPON TESTING DURING FISCAL YEAR 1986. THE RESTRICTION, ACCORDINGLY, WOULD NOT BE APPLICABLE TO NEW FUNDS APPROPRIATED BY THE CONGRESS FOR FISCAL YEAR 1987.

WE HAVE USUALLY LOOKED TO LEGISLATIVE HISTORY TO CONFIRM OUR INTERPRETATION OF AN APPROPRIATION ACT PROVISION. WE HAVE NOT RELIED ON LEGISLATIVE HISTORY ALONE TO OVERCOME THE STATUTORY PRESUMPTION THAT PROVISIONS IN APPROPRIATION ACTS DO NOT CONSTITUTE PERMANENT LEGISLATION UNLESS EXPRESSLY PROVIDED OTHERWISE. 31 U.S.C. SEC. 1301(C). SEE B-214058, FEBRUARY 1, 1984; 62 COMP.GEN. 54, 56 (1982). IN THIS INSTANCE, THE LEGISLATIVE HISTORY OF SECTION 8097 IS AMBIGUOUS AND INCLUDES CONFLICTING STATEMENTS REGARDING THE PERMANENCE OF THE ANTI-SATELLITE TESTING RESTRICTION.

THE RESTRICTION IN SECTION 8097 WAS INCLUDED IN H.R. 3629 WHEN THE BILL WAS REPORTED FROM THE HOUSE APPROPRIATIONS COMMITTEE. THE PROVISION AT THE POINT REFERRED ONLY TO "FUNDS APPROPRIATED BY THIS ACT," WITH NO REFERENCE TO FUNDS APPROPRIATED BY "ANY OTHER ACT," WHILE THE BILL LANGUAGE CLEARLY LIMITS THE RESTRICTION TO THE FY 1986 APPROPRIATION, THE HOUSE APPROPRIATIONS COMMITTEE REPORT INCLUDED THE FOLLOWING STATEMENT, WHICH COULD BE READ AS AN UNDERSTANDING THAT THE RESTRICTION WOULD BE PERMANENT:

THE AIR FORCE REQUESTED $149,934,000 FOR SPACE DEFENSE SYSTEMS TO CONTINUE DEVELOPMENT OF AN ANTI-SATELLITE CAPABILITY. THE COMMITTEE RECOMMENDS THE BUDGETED AMOUNT. THE COMMITTEE CONCURS IN THE CONCERNS EXPRESSED OVER CONTINUED TESTING AGAINST OBJECTS IN SPACE, ABSENT SUCH TESTING BY THE SOVIET UNION. THE COMMITTEE HAS THEREFORE INCLUDED IN THE BILL A GENERAL PROVISION WHICH PROHIBITS OBLIGATING OR EXPENDING FUNDS FOR SUCH TESTING UNTIL THE PRESIDENT HAS CERTIFIED THAT THE SOVIET UNION CONDUCTED A TEST AFTER OCTOBER 3, 1985.

H.R. REP. NO. 332, 99TH CONG., 1ST SESS. 333 (1985). NONETHELESS, STATEMENTS ON THE FLOOR OF THE HOUSE WHEN H.R. 3629 WAS CONSIDERED SEEM TO INDICATE A PREVAILING UNDERSTANDING THAT THE RESTRICTION, AS FRAMED AT THE TIME, WAS TEMPORARY. SEE, E.G., 131 CONG.REC. H 9401-9402 (DAILY ED. OCTOBER 30, 1985).

WHEN H.R. 3629 WAS CONSIDERED IN THE SENATE, THE RESTRICTION REGARDING FUNDING OF ANTI-SATELLITE WEAPON TESTING HAD BEEN ELIMINATED BY THE COMMITTEE ON APPROPRIATIONS. S.REP. NO. 176, 99TH CONG., 1ST SESS. 353 (1985).

H.R. 3629 WAS SUBSEQUENTLY CONSIDERED BY THE CONGRESS AS PART OF H.J. RES. 465, WHICH WAS ULTIMATELY ENACTED AS PUB.L. NO. 99-190, THE FISCAL YEAR 1986 CONTINUING RESOLUTION. WHEN THE HOUSE-SENATE CONFERENCE COMMITTEE CONSIDERED THE MATTER, THE CONFEREES AGREED TO INCLUDE THE ANTI- SATELLITE TESTING RESTRICTION IN THE RESOLUTION. ADDITIONALLY, THEY ADDED NEW LANGUAGE RESTRICTING FUNDS APPROPRIATED BY "ANY OTHER ACT." THE CONFERENCE COMMITTEE EXPLAINED AS FOLLOWS:

THE CONFEREES AGREE TO THE HOUSE POSITION THAT NO FISCAL YEAR 1986 FUNDS ARE TO BE USED FOR TESTING ON ANTI-SATELLITE WEAPONS AGAINST OBJECTS IN SPACE BILL LANGUAGE HAS BEEN PROVIDED WHICH FURTHER PROHIBITS OBLIGATION OR EXPENDITURE OF FUNDS PROVIDED BY THIS OR ANY OTHER ACT FOR SUCH TESTING UNTIL THE PRESIDENT CERTIFIES TO CONGRESS THAT THE SOVIET UNION HAS CONDUCTED AFTER OCTOBER 3, 1985, A TEST AGAINST AN OBJECT IN SPACE OF A DEDICATED ANTI-SATELLITE WEAPON.

H.R. REP. NO. 450, 99TH CONG., 1ST SESS. 259 (1985). SEE ALSO H.R. REP. NO. 443, 99TH CONG., 1ST SESS. 258 (1985).

THE LANGUAGE USED BY THE CONFEREES TO EXPLAIN THEIR ACTION WITH REGARD TO FUNDING OF ANTI-SATELLITE TESTING IS AMBIGUOUS. THE FIRST SENTENCE OF THE EXPLANATORY STATEMENT REFERS TO FISCAL YEAR 1986 FUNDS. HOWEVER, THE EXPLANATORY STATEMENT GOES ON TO NOTE THAT "LANGUAGE HAS BEEN PROVIDED WHICH FURTHER PROHIBITS OBLIGATION OR EXPENDITURE OF FUNDS PROVIDED BY THIS OR ANY OTHER ACT." IT IS UNCLEAR WHAT THE CONFEREES INTENDED THE NEW LANGUAGE, "OR ANY OTHER ACT," TO ADD TO SECTION 8097. THE CONFEREES MAY HAVE INTENDED TO EXTEND THE RESTRICTION ON THE USE OF APPROPRIATED FUNDS FOR ANTI-SATELLITE TESTING TO ANY OTHER FUNDS PROPERLY AVAILABLE IN FISCAL YEAR 1986 FOR SUCH TESTING (E.G., FUNDS CARRIED OVER FROM FISCAL YEAR 1985). SEE 131 CONG.REC. S18153 (DAILY ED. DECEMBER 19, 1985) (REMARKS OF SENATOR WALLOP). THIS INTERPRETATION WOULD BE CONSISTENT WITH THE POSITION OF THIS OFFICE REGARDING INTERPRETATION OF THE PHRASE "THIS OR ANY OTHER ACT." ALTERNATIVELY, IT MAY HAVE BEEN THE INTENT OF THE CONFEREES TO EXTEND THE TESTING RESTRICTION TO FUNDS AVAILABLE UNDER FUTURE APPROPRIATION ACTS, EFFECTIVELY MAKING THE RESTRICTION PERMANENT.

WHEN THE CONTINUING RESOLUTION WAS DEBATED ON THE FLOOR OF BOTH THE HOUSE AND SENATE, CONFLICTING STATEMENTS WERE MADE REGARDING PERMANENCY OF THE ANTI-SATELLITE TESTING RESTRICTION. IN GENERAL, STATEMENTS MADE IN THE HOUSE APPEARED TO INDICATE THAT THE RESTRICTION WOULD BE PERMANENT. FOR EXAMPLE, REPRESENTATIVE AUCOIN HAD THE FOLLOWING COMMENTS:

WE CAN STOP ASAT TESTING ON BOTH SIDES. THAT'S WHAT THIS RESOLUTION DOES. NO "IFS" "ANDS," OR "BUTS." NO HOKEY ESCAPE CLAUSES THAT LET THE PRESIDENT TEST IF HE CERTIFIES HE'S THINKING ABOUT ATTEMPTING TO CONSIDER NEGOTIATING ABOUT WHEN TO HAVE THE NEXT ARMS CONTROL TALKS.

"JUST CLEAR, COLD TURKEY NO TESTING. WE BLOCK NOT JUST TWO TESTS, BUT ALL TESTS OF THIS WEAPONS IN ANY FISCAL YEAR. ***"

131 CONG.REC. H12977 (DAILY ED. DECEMBER 19, 1985). SIMILARLY, REPRESENTATIVE WEISS HAD THE FOLLOWING COMMENT: "ON THE OTHER HAND IF WE ACT TO ENSURE THAT THE STIFF NEW PROHIBITION ON ASAT TESTS CONTAINED IN THE CONTINUING RESOLUTIONS PRESERVED, IT IS LIKELY THAT SUCH ARMS RACE CAN BE SUCCESSFULLY AVOIDED. THE CONFERENCE COMMITTEE LANGUAGE DENIES APPROPRIATIONS FOR ASAT TESTING UNDER THIS OR ANY ACT, MEANING THAT ASAT TESTING WILL NOT BE ALLOWED TO RESUME UNLESS SPECIFIC LANGUAGE REPEALING THE BAN IS ENACTED IN THE FUTUURE."

131 CONG.REC. H13034 (DAILY ED. DECEMBER 19, 1985). SEE GENERALLY 131 CONG.REC. H12160, 12162 (DAILY ED. DECEMBER 16, 1985) (REMARKS OF REPRESENTATIVE CONTE); ID. AT H12189 (REMARKS OF REPRESENTATIVE CHAPPELL); ID. AT H12191 (REMARKS OF REPRESENTATIVE AUCOIN); ID. AT H12194 REMARKS OF REPRESENTATIVE KEMP); 131 CONG.REC. H12985 (DAILY ED. DECEMBER 19, 1985) (REMARKS OF REPRESENTATIVE FASCELL), ID AT 13031 (REMARKS OF REPRESENTATIVE BROWN).

HOWEVER, STATEMENTS MADE IN THE SENATE SUGGEST THAT SECTION 8097 WAS NOT INTENDED TO HAVE PERMANENT EFFECT. FOR EXAMPLE, SENATOR WALLOP COMMENTED AS FOLLOWS:

"THE U.S. ASAT PROGRAM, READY FOR TESTS NO. 2 AND NO. 3 IS EFFECTIVELY PUT ON ICE FOR THE REMAINDER OF THIS FISCAL YEAR.

"TESTING IS NECESSARY. ONLY ONE TEST HAS BEEN COMPLETED ON SEPTEMBER 13, 1985. IT DEMONSTRATED THAT CERTAIN PROBLEMS WITH THE MOTORS HAD BEEN SOLVED. UNDER THE DEFENSE AUTHORIZATION BILL, THREE TESTS WERE AUTHORIZED FOR FISCAL YEAR 1986 INCLUDING THE SEPTEMBER 1985 TEST FOLLOWING THE TESTING PLAN, ON DECEMBER 13, 1985, THE AIR FORCE LAUNCHED TWO TARGETS FOR USE IN THE REMAINING TWO TESTS FOR THIS YEAR LAUNCHING THESE TWO TARGETS COST APPROXIMATELY $20 MILLION.

BECAUSE THESE TARGETS HAVE A LIMITED USEFUL LIFETIME, A MORATORIUM FOR FISCAL YEAR 1986 WOULD RESULT IN THE LOSS OF $20 MILLION. VERY EFFICIENT MY COLLEAGUES. VERY EFFICIENT.

131 CONG.REC. S18153-18154 (DAILY ED. DECEMBER 19, 1985). SENATOR STEVENS, A SENATE CONFEREE, HAD THE FOLLOWING COMMENT WHICH SEEMS TO INDICATE THAT HE TOO BELIEVED THE PROVISION WOULD BE TEMPORARY, ALTHOUGH HIS POSITION IS NOT ABSOLUTELY CLEAR.

"THE DOWNSIDE OF THIS GOOD NEWS IS THE CONCESSION TO THE HOUSE POSITION AGAINST SPACE TESTING OF THE ANTI-SATELLITE WEAPONS SYSTEM, COMMONLY CALLED ASAT. WE FOUGHT HARD ON THIS ISSUE, MR. PRESIDENT, TO PRESERVE THE SENATE POSITION ALLOWING LIMITED TESTING UNDER SPECIFIC CONDITIONS, BUT THE HOUSE WAS ADAMANT. IN THE END ASAT TESTING BECAME A KEY LINK IN THE OVERALL AGREEMENT AND, IN EFFECT, THE PRICE FOR THE SUCCESSFUL CONCLUSION OF OTHER HIGH PRIORITY ISSUES. SO THE AGREEMENT IS ON A TESTING MORATORIUM, BUT THE SENATE POSITION IS THAT THIS ISSUE CAN BE REOPENED AT ANY TIME IN FUTURE APPROPRIATION ACTS. WE WILL WATCH THE PROGRESS OF ARMS CONTROL NEGOTIATIONS IN GENEVA, AND WE WILL WATCH THE ACTIVITIES OF THE SOVIETS IN ASAT DEVELOPMENT TO ENSURE THAT THIS TEMPORARY HALT IN TESTING DOES NOT JEOPARDIZE OUR DEFENSE POSTURE.

131 CONG.REC. S18137 (DAILY ED. DECEMBER 19, 1985). SEE GENERALLY 131 CONG.REC. S17662-17663 (DAILY ED. DECEMBER 16, 1985) (REMARKS OF SENATOR PROXMIRE); ID. AT S17711-17712 (REMARKS OF SENATOR KERRY).

REPRESENTATIVES AUCOIN, BROWN, DICKS, AND COUGHLIN, IN SUPPORT OF THEIR POSITION THAT SECTION 8097 "WAS TO APPLY TO ALL APPROPRIATIONS ON A PERMANENT BASIS," CITE A PREPARED ANSWER SUBMITTED BY THE AIR FORCE, CONCERNING AN EARLIER CERTIFICATION REQUIREMENT, IN RESPONSE TO A WRITTEN QUESTION POSED BY THE HOUSE ARMED SERVICES COMMITTEE DURING THE FISCAL YEAR 1985 DEPARTMENT OF DEFENSE AUTHORIZATION AND OVERSIGHT HEARINGS. THAT QUESTION, AND THE AIR FORCE ANSWER, WERE AS FOLLOWS:

QUESTION. IT HAS BEEN INTERPRETED BY SOME WITHIN THE SENATE THAT THE TSONGAS CERTIFICATION REQUIREMENT WILL REMAIN IN EFFECT UNTIL IT IS FULFILLED, REGARDLESS OF WHETHER THE FIRST TEST AGAINST THE ITV OCCURS IN FY84. IS THIS YOUR INTERPRETATION OF THE LEGAL CONSTRAINTS IMPOSED ON THE AIR FORCE BY THE TSONGAS AMENDMENT?

ANSWER. THE TEXT OF THE TSONGAS AMENDMENT STATES THAT "NOTWITHSTANDING ANY OTHER PROVISION OF LAW, NONE OF THE FUNDS APPROPRIATED PURSUANT TO OUR (SIC) AUTHORIZATION CONTAINED IN THIS OR ANY OTHER ACT MAY BE OBLIGATED OR EXPENDED TO TEST ANY EXPLOSIVE OR INERT ANTI-SATELLITE WARHEADS IN SPACE UNLESS ***." THIS WOULD SEEM TO INDICATE THAT THE AMENDMENT IS NOT LIMITED TO THE 1984 DOD AUTHORIZATION ACT.

HEARINGS ON DEPARTMENT OF DEFENSE AUTHORIZATION OF APPROPRIATIONS FOR FISCAL YEAR 1985 BEFORE THE HOUSE COMMITTEE ON ARMED SERVICES, 98TH CONG., 2ND SESS. PART 4, 169 (1984).

IN OUR VIEW, THIS HEARING EXCERPT CANNOT BE GIVEN GREAT WEIGHT IN DETERMINING CONGRESSIONAL INTENT WITH REGARD TO THE PERMANENCY OF SECTION 8097. INITIALLY, WE NOTE THAT THE TSONGAS AMENDMENT, ALTHOUGH SOMEWHAT SIMILAR TO SECTION 8097 IN EFFECT, IS AN ENTIRELY DISTINCT LEGISLATIVE PROVISION. SEE PUB.L. NO. 98-94, SEC. 1235, 97 STAT. 614, 695-96 (1983), AS AMENDED BY PUB.L. NO. 98-525, SEC. 205, 98 STAT. 2492, 2509-10 (1984). MORE SIGNIFICANTLY, IT WAS INCLUDED IN AN AUTHORIZATION ACT, NOT IN AN APPROPRIATION ACT. BECAUSE AUTHORIZATION ACTS ARE NOT BY DEFINITION TIME LIMITED, THE PRESUMPTION AGAINST PERMANENCY DOES NOT AUTOMATICALLY APPLY TO THEM. FINALLY, WITH RESPECT TO THE CERTIFICATION REQUIREMENT OF SECTION 8097, WE NOTE THAT THE AIR FORCE OFFICE OF GENERAL COUNSEL INFORMALLY HAS TAKEN THE POSITION THAT THE PROVISION IS NOT PERMANENT.

BECAUSE OF THE AMBIGUITIES AND CONFLICTING STATEMENTS IN THE LEGISLATIVE HISTORY OF SECTION 8097, THE LEGISLATIVE HISTORY IS NOT CONCLUSIVE IN DETERMINING THE INTENT OF CONGRESS WITH REGARD TO THE PERMANENCE OF THE ANTI-SATELLITE TESTING RESTRICTION. THEREFORE, IT DOES NOT CONTRADICT OUR DETERMINATION THAT SECTION 8097 IS NOT PERMANENT.

IN SUMMARY, NONE OF THE CIRCUMSTANCES WHICH COULD SUPPORT A FINDING THAT SECTION 8097 CONSTITUTES PERMANENT LEGISLATION IS PRESENT IN THE CASE AT HAND. ACCORDINGLY, WE CONCLUDE THAT SECTION 8097 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1986, DOES NOT CONSTITUTE PERMANENT LEGISLATION BUT RATHER IS APPLICABLE ONLY TO FUNDS MADE AVAILABLE BY THE DOD APPROPRIATIONS ACT, 1986, OR OTHER LEGISLATION PROVIDING FUNDING FOR ANTI- SATELLITE WEAPON TESTING DURING FISCAL YEAR 1986.