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 appropriated 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 f o r t h e C h a ir m a n

B r o a d c a s t in g B o a r d o f G o v e r n o r s

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 Counsel, 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 broadcasting 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 amended, 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 “ International 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, however, 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. Finally, 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 headquarters 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, Principles o f Federal 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 legisla210
Relocation Deadline Provision C ontained in the 1996 Omnibus Consolidated Rescissions and

A ppropriations A ct

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 fashion 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 initially 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 Agencies 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 SI4,540. 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 conference 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 SI8,182-83 (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:

1 Although the Supreme Court has not had an occasion to review a decision regarding technical or clerical errors 

of this kind, it has acknowledged that Chevron's teaching with regard to the literal meaning of 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 of 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 “ criminal” 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 of Cuba Broadcasting 

shall be relocated from Washington, 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, instead 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 Washington, D.C., to south Florida by April 1, 1996, and permits funds 

from three accounts, International Broadcasting Operations, Broadcasting 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 willing 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 some date, that the relocation be financed through the USIA accounts 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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Relocation Deadline Provision Contained in the 1996 Omnibus Consolidated Rescissions and

Appropriations A ct

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 substitute for the erroneous term is obvious or apparent from the context. Cf. A ppropriations 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 typographical 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 consistent with Congress’s intention.

II. Conclusion

Based on the foregoing, we conclude that USIA is entitled at this time to obligate 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 

Deputy Assistant Attorney General

Office o f Legal Counsel

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