Relocation Deadline Provision Contained in the 1996 Omnibus Consolidated Rescissions and Appropriations Act

Relocation Deadline Provision Contained in the 1996 Omnibus
Consolidated Rescissions and Appropriations Act

Requirement in the Appropriations Act that the United States Information Agency relocate the Office
of Cuba Broadcasting to south Florida by a date almost a month before the Act was signed into
law constitutes a technical or typographical error, and USIA is entitled to obligate the funds appro­
priated in the provision, even though it is unable to turn back the clock and comply with the
provision’s literal deadline.

May 21, 1996

M e m o r a n d u m O p in io n for th e C h a ir m a n
B r o a d c a s t in g B o a r d of G overnors

This is in response to your request for advice concerning the interpretation of
a provision contained in title IV of the Omnibus Consolidated Rescissions and
Appropriations Act, Pub. L. No. 104-134, 110 Stat. 1321, 1321-43 (1996)
(“ Act” ) (the provision at issue is herein referred to as “ the provision” ). See
Letter for Walter E. Dellinger, Assistant Attorney General, Office of Legal Coun­
sel, from David W. Burke, Chairman, Broadcasting Board of Governors (May
2, 1996). Specifically, you have asked whether the United States Information
Agency (“ USIA” ) is entitled at this time to spend monies appropriated under
the provision, whether the provision requires the relocation of the Office of Cuba
Broadcasting’s (“ OCB” ) headquarters to south Florida, and whether the accounts
cited in the provision as being available to finance the relocation are currently
available for that purpose.
The provision provides a fiscal year 1996 appropriation to USIA to carry out
activities authorized under various public laws relating to international broad­
casting by the United States. The provision states in pertinent part:

For expenses necessary to enable the United States Information
Agency to carry out the Radio Broadcasting to Cuba Act, as amend­
ed, the Television Broadcasting to Cuba Act, and the International
Broadcasting Act of 1994 . . . $24,809,000 . . . Provided, That
not later than April 1, 1996, the headquarters o f the Office o f Cuba
Broadcasting shall be relocated from Washington, D.C. to south
Florida, and that any funds available under the headings “ Inter­
national Broadcasting Operations,” “ Broadcasting to Cuba,” and
“ Radio Construction” may be available to carry out this relocation.

Pub. L. No. 104-134, 110 Stat. at 1321-43 (emphasis added).
As your letter makes clear, because the Act was signed into law on April 26,
1996, almost one month after the date upon which OCB’s headquarters must be

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relocated to south Florida under the literal terms of the provision’s relocation
deadline, these literal terms cannot be satisfied. For the reasons stated below, how­
ever, we conclude that USIA is at this time nevertheless entitled to spend funds
appropriated under the provision. In addition, we conclude that the relocation of
OCB’s headquarters to south Florida is mandatory under the appropriation. Fi­
nally, we conclude that, despite USIA’s inability to comply with the literal terms
of the provision’s relocation deadline, it may at this time access funds contained
in the International Broadcasting Operations, Broadcasting to Cuba, and Radio
Construction accounts in order to cover expenses associated with relocating OCB’s
headquarters to south Florida. These conclusions are premised on observance of
the statutory mandate to relocate OCB’s headquarters to south Florida. We decline
to address at this time, however, the time period within which the relocation must
be accomplished.

I. Discussion

The pre-eminent principle of statutory interpretation, as most recently expressed
by the Supreme Court, is that where Congress has “ spoken to the precise question
at issue,” agencies and courts are bound by the terms of the statute as written.
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,
842 (1984). Here, the appropriations provision under review speaks plainly and
precisely, imposing an April 1, 1996 deadline on the relocation of OCB’s head­
quarters to south Florida. We conclude, however, that the exceptional aspects of
this provision and its enactment history justify a narrow exception to the principle
enunciated in Chevron to correct what manifestly appears to be a technical or
clerical error.
According to a General Accounting Office (“ GAO” ) treatise on Appropriations
law:

A statute may occasionally contain what is clearly a technical or
typographical error which, if read literally, could alter the meaning
of the statute or render execution effectively impossible. In such
a case, if the legislative intent is clear, the intent will be given
effect over the erroneous language.

1 Office of the General Counsel, United States General Accounting Office, Prin­
ciples o f F ederal Appropriations Law 2-74 (2d ed. 1991). Courts have embraced
the GAO’s view regarding such statutes. In Fleming v. Salem Box Co., 38 F.
Supp. 997 (D. Or. 1940), the court gave effect to what it determined to be the
true intent of Congress when confronted with a clerical error that, if adhered to,
could not have been reconciled with the statute’s legislative history. The court
stated that “ [a] palpable clerical error clearly shown should not override legisla-

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tive intention.” Id. at 998. In Ronson Patents Corp. v. Sparklets Devices, Inc.,
102 F. Supp. 123 (E.D. Mo. 1951), the court determined that a statute extending
the term of a patent was not invalid despite the existence of an error in the patent’s
reissue date. According to the court, “ if the error in a legislative act is apparent
on the face of the act and can be corrected by other language of the act, it is
not fatal.” Id. at 124.1 The fact that the provision’s literal terms require USIA
to satisfy a condition that is beyond the realm of possibility strongly suggests
that the provision contains an error of the type contemplated by the “ technical
or clerical error” line of cases.
The “ technical or clerical error” doctrine directs courts, when necessary, to
look beyond a statute’s literal language to the statute’s legislative history to fash­
ion an interpretation that is consistent with Congress’s intention in passing the
statute. We will, therefore, attempt such an exercise with respect to the provision’s
April 1, 1996 relocation deadline. Our research reveals that Senator Gramm ini­
tially introduced the requirement that OCB’s headquarters be relocated to south
Florida by April 1, 1996 as an amendment to the Senate’s version of H.R. 2076,
the Department of Commerce, Justice, and State, the Judiciary, and Related Agen­
cies Appropriations Act, 1996. 141 Cong. Rec. S14,539-40 (daily ed. Sept. 28,
1995).2 On September 28, 1995, the same day the amendment was introduced,
it was incorporated by unanimous consent into the version of H.R. 2076 then
pending before the Senate. Id. at S I4,540. On the following day, September 29,
1995, the Senate passed its version of H.R. 2076, as amended. Id. at S I4,697
(daily ed. Sept. 29, 1995).
A slightly modified version of Senator Gramm’s amendment emerged from con­
ference with the House of Representatives, see 141 Cong. Rec. H13.885 (daily
ed. Dec. 4, 1995), and was included in the version of H.R. 2076 that was passed
by both houses of Congress on December 6 and 7, 1995. Id. at H14,112 (daily
ed. Dec. 6, 1995); id. at S I8,182-83 (daily ed. Dec. 7, 1995). The relocation
language that emerged from conference and was approved by both houses as part
of H.R. 2076 was identical to the relocation language contained in the provision.
In describing the relocation language that emerged from the conference on H.R.
2076, the joint explanatory statement on the conference agreement stated:

1Although the Supreme Court has not had an occasion to review a decision regarding technical o r clerical errors
o f this kind, it has acknowledged that Chevron's teaching with regard to the literal meaning o f a statute is subject
to some exceptions. Recognizing in Green v. Bock Laundry Machine Co., 490 U.S. 504, 510 (1989), that a literal
interpretation o f Fed. R. Evid. 609(a)(1) would cause an '"unfathomable” result (i.e., the <4den[ial to] a civil plaintiff
[of] the same right to impeach an adversary's testimony that [the rule] grants to a civil defendant” ), it held that
the rule should be read in a manner consistent with Congress’s intention in enacting it, which requires that the
word “ defendant" be interpreted to refer solely to “ crim inal” defendants. 490 U.S. at 521.
2 The amendment introduced by Senator Gramm modified H.R. 2076 to add the following language to the section
appropriating funds for Broadcasting to Cuba:
Provided further, That not later than April 1, 1996, the headquarters of the Office o f Cuba Broadcasting
shall be relocated from W ashington, D.C. to south Florida, and that any funds available to the United
States Information Agency may be available to carry out this relocation.”
Id. at S 14,558.

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The conference agreement includes $24,809,000 for Broadcasting
to Cuba under a separate account, as proposed by the Senate, in­
stead of within the total for International Broadcasting Operations,
as proposed by the House.

The agreement also includes language requiring the relocation
of the headquarters of the Office of Cuba Broadcasting from Wash­
ington, D.C., to south Florida by April 1, 1996, and permits funds
from three accounts, International Broadcasting Operations, Broad­
casting to Cuba, and Radio Construction, to be used to carry out
the relocation. The Senate bill proposed the relocation, but allowed
any USIA funds to be used to carry out the relocation. The House
bill contained no similar provision.

141 Cong. Rec. H I3,923 (daily ed. Dec. 4, 1995); H.R. Conf. Rep. No. 104-
378, at 148-49(1995).
Because the President vetoed H.R. 2076, see 141 Cong. Rec. D1491 (daily ed.
Dec. 19, 1995), and Congress was unable to override his veto, H.R. 2076 was
never enacted. Subsequently Congress and the President reached agreement on
the bulk of the fiscal year 1996 appropriations that were originally included in
H.R. 2076, and these appropriations and other provisions from H.R. 2076 were
included in H.R. 3019. H.R. 3019 contained H.R. 2076’s relocation language, with
no adjustment in the relocation date. On April 25, 1996, the House and Senate
passed H.R. 3019 with this language in it, including the April 1, 1996 relocation
deadline, see 142 Cong. Rec. 9141 (1996); id. at 9218, and President Clinton
signed it on April 26, 1996. See 142 Cong. Rec. D386 (daily ed. Apr. 29, 1996).
On the basis of the original passage of H.R. 2076 on December 6 and 7, 1995,
Congress intended OCB’s headquarters to be relocated to south Florida, was will­
ing to allow funds contained in USIA’s International Broadcasting Operations,
Broadcasting to Cuba, and Radio Construction accounts to finance the relocation,
and was prepared to allow approximately four months for the relocation to be
accomplished. The retention of the relocation and related language in H.R. 3019
indicates that Congress’s intention as to the relocation and its financing had not
changed in the intervening period between December, 1995 and the passage of
H.R. 3019, and there is no other evidence of any kind to suggest that it had
changed. The manifest intention of Congress, thus, is that OCB’s headquarters
be relocated by som e date, that the relocation be financed through the USIA ac­
counts specified above, and that the relocation be a condition on the expenditure
of certain appropriated funds. Under these circumstances, we believe the retention
of the April 1, 1996 relocation deadline— compliance with which had become
a temporal impossibility by the provision’s date of enactment— was the result

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of a technical error in failing to revise the relocation deadline prior to the passage
of H.R. 3019.
Finally, in many other cases of correcting a technical or clerical error, a sub­
stitute for the erroneous term is obvious or apparent from the context. Cf. A ppro­
priations to Pay Supervision o f Election, 1 Comp. Dec. 1 (1894) (holding that
an appropriation providing funds in connection with an election held on November
“ 5th,” 1890 could be used to make payments associated with an election held
on November 4, 1890, where it was clear that November “ 5th” was a typo­
graphical error and Congress intended to make the funds available to support the
November 4 election). Here, several plausible alternatives seem available. In this
circumstance, we leave to USIA, the agency administering the appropriation in
the first instance, the responsibility for determining a compliance date that is con­
sistent with Congress’s intention.

II. Conclusion

Based on the foregoing, we conclude that USIA is entitled at this time to obli­
gate the funds appropriated in the provision, even though it is unable to turn back
the clock and comply with the provision’s literal deadline for relocating OCB’s
headquarters to south Florida. We also conclude that the relocation of OCB’s
headquarters to south Florida is mandatory under the appropriation. Finally, we
conclude that USIA may use funds available under the account headings specified
in the provision to finance the relocation.

RICHARD L. SHIFFRIN
D eputy Assistant Attorney General
Office o f Legal Counsel

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