[Deschler-Brown Precedents, Volume 16, Chapters 32 - 33]
[Chapter 33. House-Senate Conferences]
[D. CONFERENCE REPORTS]
[Â§ 19. Limitations on Scope of Report]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 701-757]
 
        House-Senate Conferences
 
D. CONFERENCE REPORTS
 
Sec.    19. Limitations on Scope of Report

Inclusion of Provision Exceeding Managers' Authority
Sec.    19.1 A point of order will lie against a conference report on the 
ground that the conferees had agreed to a provision which was beyond 
the limits of their authority.
On Dec. 11, 1967,(20) after Mr. Thaddeus J. Dulski, of New York, called 
up the conference report on H.R. 7977, the Postal Revenue and Federal 
Salary Act of 1967, Mr. H. R. Gross, of Iowa, raised a point of order.

MR. GROSS: Mr. Speaker, I make a point of order against the conference 
report on the grounds that the House managers exceeded their authority 
and did not confine themselves to the differences committed to them, in 
violation of the rules and precedents of the House of Representatives.
The House bill, in section 107(a) provided a minimum charge of 3.8 
cents for bulk third-class mail effective January 7, 1968. Section 107
(a) of the Senate amendment provided a two-step minimum charge-the 
first of 3.6 cents effective January 7, 1968, and a second 4-cent rate 
effective January 1, 1969.
The differences committed to the conferees with respect to this postage 
rate and the effective dates for this rate were: A rate range between 
3.6 cents and 4 cents; a January 7, 1968, effective date for a one-rate 
charge with no further rate provided; and January 7, 1968, and January 
1, 1969, effective dates for any two-rate charges.
The conference report contains a two-rate charge-the first, 3.6 cents, 
effective January 7, 1968; the second, 4 cents, effective July 1, 1969.
The July 1, 1969, effective date for a second rate goes beyond the 
disagreements confided to the conferees. By agreeing to any effective 
date for a second rate beyond January 1, 1969, the House managers have 
clearly exceeded their authority. . . . 
Rule 28 clause 3 of the Rules of the House(1) reads:

Whenever a disagreement to an amendment in the nature of a substitute 
has been committed to a conference committee it shall be in order for 
the Managers on the part of the House to propose a substitute which is 
a germane modification of the matter in disagreement, but their report 
shall not include matter not committed to the conference committee by 
either House.

The Senate bill was an amendment-in the nature of a substitute for the 
House bill. The conference report is an 
-----------------------------------------------------------------------
20.     113 CONG. REC. 35811, 90th Cong. 1st Sess.
 1.     See House Rules and Manual Sec. 913(a) (1997).
-----------------------------------------------------------------------


[[Page 703]]

additional substitute on the same subject. However, the conference 
report distinctly includes matter not committed to the conferees by 
either House, and I make the point of order on that basis. . . . 
THE SPEAKER:(2) Does the gentleman from New York desire to be heard on 
the point of order?
MR. DULSKI: Mr. Speaker, I concede the point of order.
THE SPEAKER: The Chair sustains the point of order.
Determining Whether Issue Is Within Scope of Conference
Sec.    19.2 In determining whether a provision included in a conference 
report is within the scope of the managers' authority, the Chair 
examines the text of the bill and amendment sent to conference; and 
where one House is silent on the matter in question the state of the 
current law may be considered the position of that House. 
On Dec. 18, 1974,(3) when the conference report on the Federal Aid 
Highway Amendments of 1974 (S. 3954) was before the House, a point of 
order was directed at a provision, having its origins in the Senate 
bill, dealing with truck weight limits. The House amendment had 
included no such provision and the Chair examined the existing law on 
the matter in determining the House position on the issue. 
A portion of the conference statement, the point of order and argument 
thereon, are carried here to illustrate the type of examination 
required by the Chair in ruling on a question raised under Rule XXVIII 
clause 3.

[Partial text of the statement of the managers accompanying the 
conference report follows.(4)]
VEHICLE SIZES AND WEIGHTS
Senate bill
Section 106 of the Senate bill amends section 127 of title 23, United 
States Code, by striking out "eighteen thousand pounds carried on any 
one axle, or with a tandem-axle weight in excess of thirty-two thousand 
pounds, or with an overall gross weight in excess of seventy-three 
thousand two hundred and eighty pounds," and inserting in lieu thereof 
the following: "twenty thousand pounds carried on any one axle, 
including all enforcement tolerances; ten thousand pounds on the 
steering axle of any truck tractor, including all enforcement 
tolerances; or with a tandem axle weight in excess of 
-----------------------------------------------------------------------
 2.     John W. McCormack (Mass.).
 3.     120 CONG. REC. 40905, 40906, 93d Cong. 2d Sess.
 4.     The report and statement were carried in the Record on Dec. 17, 
1974, at 120 CONG. REC. 40575, 93d Cong. 2d Sess.
-----------------------------------------------------------------------


[[Page 704]]

thirty-four thousand pounds, including all enforcement tolerances; or 
with an overall gross weight on a group of two or more consecutive   
axles produced by application of the following formula: . . . 
House amendment
No comparable provision.
Conference substitute
The conference substitute is identical to the Senate bill except as 
follows:
(1) The phrase "10,000 pounds on the steering axle of any truck 
tractor, including all enforcement tolerances;" is deleted.
(2) Because of inclusion in the Senate passed bill of a new and 
additional weight limitation on any group of two or more consecutive 
axles of vehicles operating on the Interstate System, clarifying 
language was added by the Conference Committee to express the intent of 
the Senate as stated by the floor manager when this provision was 
debated on the Senate floor. The added language makes it clear that any 
vehicle or combination of vehicles that could lawfully operate in a 
State on the date of enactment of the Federal-Aid Highway Amendments of 
1974 may be permitted to continue to operate on the Interstate System 
in such State even though the overall gross weight of any group of 
consecutive axles may exceed that permitted by the formula in this 
section.

MR. [JAMES C.] WRIGHT [Jr., of Texas]: Mr. Speaker, I call up the 
conference report on the Senate bill (S. 3934) to authorize 
appropriations for the construction of certain highways in accordance 
with title 23 of the United States Code, and for other purposes, and 
ask unanimous consent that the statement of the managers be read in 
lieu of the report.

POINT OF ORDER
MR. [EDWARD J.] KOCH [of New York]: Mr. Speaker, I wish to raise a 
point of order.
THE SPEAKER:(5) The gentleman will state it.
MR. KOCH: Mr. Speaker, I raise a point of order, pursuant to rule 
XXVIII, clause 3, of the House Rules, that the conference report on S. 
3934 is not in order because section 106(b) contains an additional 
proposition not committed to the conference committee by either House 
and which is, therefore, nongermane.
This provision adds a major exception to the safety provision relating 
to allowable vehicle weights. The provision would allow States with 
higher weights on roads other than interstate highways at the time of 
enactment to permit the heavier weights on interstate highways and to 
be exempted from the bridge facility formula in section 106(a).
That provision was neither in the House bill nor the Senate bill.
MR. WRIGHT: Mr. Speaker, may I be heard on the point of order?
THE SPEAKER: The gentleman from Texas will be heard.
MR. WRIGHT: . . . The language added by the conference committee is 
well and fully within the scope of the conference. The House, as will 
be recalled, had no provision whatever concerning size and weights, 
while the Senate bill did contain such provision. The Senate bill in 
-----------------------------------------------------------------------
 5.     Carl Albert (Okla.).
-----------------------------------------------------------------------


[[Page 705]]

effect, provided for certain increases in allowable sizes and weights 
on the interstate system and at the same time included certain new 
weight restrictions that could have been interpreted to preclude 
operation of vehicles that now lawfully can be operated in a State.
Floor debate in the Senate while this provision was under consideration 
indicates very clearly that it was not the intention of the Senate to 
prohibit the operation of vehicles that now can be lawfully operated 
and, therefore, the conference committee had language to make this 
clear.
Assuming for the sake of argument that the statement of intent on the 
floor of the Senate is not conclusive, nevertheless the additional 
language is well within the scope of the conference. The Senate placed 
limitations that would have made it illegal for certain vehicles to 
operate. The House did not have any such limitation. Consequently it 
was within the purview of the conference to reduce or ease the 
limitation. And that is exactly what the language in question does-no 
more. The Senate language declared that no vehicles which do not meet 
all the new qualifications may operate. The House was silent on the 
matter. The new language merely declares that a few vehicles that 
otherwise did not qualify may operate. This had the effect of 
compromising between the "all" in the Senate language and the silence 
of the House language to arrive at some compromise in the report.

And so, in sum, Mr. Speaker, whether one accepts the floor statements 
concerning the intent of the Senate or one does not, the language added 
by the conference report is well within the scope of the matters 
referred to the conference.
MR. KOCH: Mr. Speaker, will the Chair hear me further on this?
THE SPEAKER: The Chair will hear the gentleman.
MR. KOCH: Mr. Speaker, the language in the bill related to a maximum of 
80,000 pounds. The conference report provides for grandfathering in 
those States that have weights in excess of that. For example, there is 
one State that allows 125,000 pounds on other than State roadways in 
that State. This conference report allows 15 such States with weights 
in excess of 80,000 pounds to operate on the interstate highways.
That was not, I submit, Mr. Speaker, either in the Senate or in the 
House bill. It is nongermane and I believe, Mr. Speaker, it is subject 
to a point of order.
THE SPEAKER: The Chair has examined both the existing law and the 
conference report. The Chair does not see any question of germaneness 
involved, since the issue was raised in the Senate bill, but the Chair 
does find that existing law, found in section 127, title 23, highways, 
United States Code, grandfathered into, or excepted from, the law 
vehicles allowed by States that had weights different from those 
contemplated by the remainder of the Federal statute. As the Chair 
reads the language of the conference report that is exactly what it 
does here. The Chair has reviewed the language and does not believe 
that there was any intention on the part of the House or the House 
conferees in agreeing to this to outlaw or to eliminate the 
grandfa-


[[Page 706]]

thering provisions in the law. That in itself, it seems to the Chair, 
does give validity to the argument of the gentleman from Texas that the 
language contained in the conference report is within the scope of the 
provisions contained in both versions, since the House amendment in the 
nature of a substitute, by remaining silent on the subject, had in 
effect taken the position of existing law which exempted vehicles 
lawfully operated under State law from the weight and width 
restrictions in title 23, section 127.
Determining Whether Matter  Is Committed to Conference Where One House 
Is Silent on Issue
Sec.    19.3 While the scope of differences committed to conference, 
where one House has explicitly amended existing law and the other is 
silent, by implication taking the position of existing law, may be 
measured between those extremes, the inclusion of new matter, not 
contained in the amending version and not demonstrably repetitive of 
existing law, may be ruled out as a matter not committed to conference 
under Rule XXVIII clause 3.  
The conference report on the bill H.R. 620, to establish an additional 
Assistant Secretary of Interior for Indian Affairs, was called up in 
the House shortly before the sine die adjournment of the second session 
of the 93d Congress.
A portion of the statement of the managers, the point of order that the 
managers had exceeded their authority, and the Chair's ruling excerpted 
from the Record of Dec. 20, 1974,(6) are carried below.
ESTABLISHING WITHIN THE DEPART-MENT OF THE INTERIOR AN ADDITIONAL 
ASSISTANT SECRETARY OF THE INTERIOR FOR INDIAN AFFAIRS
MR. [LLOYD] MEEDS [of Washington]: Mr. Speaker, I call up the 
conference report on the bill (H.R. 620) to establish within the 
Department of the Interior an additional Assistant Secretary of the 
Interior for Indian Affairs, and for other purposes, and ask unanimous 
consent that the statement of the managers be read in lieu of the 
report.

The explanation of the conference section which was the focus of the 
point of order was as follows:
CONFERENCE REPORT (H. REPT. NO. 93-1620)
The committee of conference on the disagreeing votes of the two Houses 
on the amendments of the Senate to the bill (H.R. 620) to establish 
within the Department of the Interior an additional Assistant Secretary 
of the Interior for Indian Affairs, and for 
-----------------------------------------------------------------------
 6.     120 CONG. REC. 41849, 41850, 93d Cong. 2d Sess.
-----------------------------------------------------------------------


[[Page 707]]

other purposes, having met, after full and free conference, have agreed 
to recommend and do recommend to their respective Houses as follows:
That the House recede from its disagreement to the amendment of the 
Senate with an amendment as follows:
That there shall be in the Department of the Interior, in addition to 
the Assistant Secretaries now provided for by law, one additional 
Assistant Secretary of the Interior for Indian Affairs, who shall be 
appointed by the President by and with the advice and consent of the 
Senate, who shall be responsible for such duties as the Secretary of 
the Interior shall prescribe with respect to the conduct of Indian 
Affairs, and who shall receive compensation at the rate now or 
hereafter prescribed by law for Assistant Secretaries of the Interior.
SEC. 5. The Alaska Native Claims Settlement Act (85 Stat. 688) is 
hereby further amended by inserting at the end thereof a new section 28 
as follows:
"(e) Any stock issued by a corporation under subsection (g) of section 
7 of this Act to any Native who is enrolled in the thirteenth region 
pursuant to this section shall, upon enrollment of that Native, be 
canceled by the issuing corporation without liability to it or the 
Native whose stock is so canceled.

The Clerk read the title of the bill.
THE SPEAKER:(7) Is there objection to the request of the gentleman from 
Washington?
POINT OF ORDER
MR. [DON] YOUNG of Alaska: Mr. Speaker, a point of order.
THE SPEAKER: The gentleman will state it.
MR. YOUNG of Alaska: Mr. Speaker, I make a point of order that section 
5(e) of the conference report introduces language presenting a specific 
topic or question that was not committed to the conference committee by 
either House and is not a germane modification of the matters in 
disagreement. The insertion of section 5(e) is a violation of clause 3 
of rule XXVIII of the rules of the House.
THE SPEAKER: Does the gentleman from Washington wish to be heard on the 
point of order?
MR. MEEDS: I do, Mr. Speaker.
Mr. Speaker, both the conference report and the Senate bill give 
authority for the distribution of certain funds and provides that the 
13th region, which would be created or provided by the conference bill, 
would be payable to these people as though the 13th region had been 
created in December of 1973.
Now, while the Senate bill did not mention the question of stock, that 
if the Senate bill had been passed it would have been necessary to do 
precisely what we have done in the conference report.
Therefore, the intended power of the Senate bill is covered in the 
language of the conference report and the conference reported bill. It 
is clearly within the scope, because it would absolutely be necessary 
to do this to carry out the Senate bill as it was enacted and it was in 
conference.
THE SPEAKER: The Chair is prepared to rule.
The Chair has examined the Senate amendment and finds that there was 
absolutely no reference in the Senate 
-----------------------------------------------------------------------
 7.     Carl Albert (Okla.).
-----------------------------------------------------------------------


[[Page 708]]

amendment that the Chair finds to a cancellation of stock previously 
issued by Native corporations to Natives who are enrolled in 
the 13th region. Therefore the conference report is in violation of 
clause 3, rule XXVIII.
The Chair, therefore, sustains the point of order.
MR. MEEDS: Mr. Speaker, could I be heard?
THE SPEAKER: The gentleman may be heard, but will the gentleman 
indicate that there is new language in the conference report not 
contained in the Senate amendment.
MR. MEEDS: Mr. Speaker, I agree there is not language in the Senate 
bill which does this, but if the Senate bill were carried out after it 
were passed, what is set forth in the conference report would have to 
be done. It is a mechanical thing that would necessarily follow.
When the 13th region was not created, certain stock was issued to 
individuals who would have been members of that 13th region in other 
corporations. When the 13th region is created, as it is by the Senate 
bill and by conference, it would then be necessary to redistribute and 
refund that fund, so it is a necessary concomitant of either bill that 
this procedure be carried out, and it is simply set out in the 
conference reported bill.
THE SPEAKER: The Chair will read clause 3, rule XXVIII:

Whenever a disagreement to an amendment in the nature of a substitute 
has been committed to a conference committee it shall be in order for 
the Managers on the part of the House to propose a substitute which is 
a germane modification of the matter in disagreement, but the 
introduction of any language in that substitute presenting a specific 
additional topic, question, issue, or proposition not committed to the 
conference committee by either House shall not constitute a germane 
modification of the matter in disagreement.

If what the gentleman says is true, the addition of this language in 
the conference report would have been redundant. To have put it in the 
conference report would have been unnecessary; the Chair must conclude 
that a new issue has been injected which was not contained in the 
Senate amendment.
The Chair, much as he dislikes to do so, must sustain the point of 
order.
Senate Standard Where Conferees Include "New Matter"
Sec.    19.4 The Senate, in determining whether a conference report is 
subject to a point of order because it includes "new matter," applies 
the following standard: If the matter is entirely irrelevant to the 
subject matter (of the bill and amendment) it is not in order.
On Aug. 19, 1982,(8) a point of order was raised against the conference 
report on the Tax Equity and Fiscal Responsibility Act of 
-----------------------------------------------------------------------
 8.     128 CONG. REC. 22398, 22400, 97th Cong. 2d Sess.
-----------------------------------------------------------------------


[[Page 709]]

1982, on the ground that the report contained a provision (new matter) 
not in either version submitted to the conference. The Chair ruled that 
since the managers went to conference on a complete substitute, they 
had maximum flexibility and had not violated the Senate rule. The 
Chair's decision was sustained on appeal.

MR. [JOHN P.] EAST [of North Carolina]: Mr. President, I would like to 
make a point of order regarding the conference report.
THE PRESIDING OFFICER:(9) Will the Senator turn on his speaker?
MR. EAST: I have it on. I think it had gotten turned off up there. I do 
not know.
If I may state my point of order:
Mr. President, I make the point of order that under the provisions of 
rule XXVIII, paragraphs 2 and 3, the conference report is out of order 
in that it contains material which is not a germane modification of 
subjects in disagreement, to wit: That the report contains a provision 
requiring a new set of information reporting requirements for certain 
businesses, and a tip allocation requirement.
I state in explanation of the point of order that the Senate struck out 
a similar provision from the Senate committee amendment to H.R. 4961, 
and that no such provision was contained in either the Senate-passed or 
original House-passed versions of the bill. Although the Senate-passed 
bill contained a provision dealing with the deductibility of business 
expenses incurred for meals and beverages, that provision dealt only 
with the issue of deductibility of business expenses. The provision 
included by the committee on conference deals with the allocation and 
reporting of income which in no way can be considered a modification of 
a provision dealing with deductions.
I further state in explanation of the point of order that the provision 
relating to the deductibility of business expenses appears under the 
heading, "Reduction in Certain Deductions and Credits," in the Senate-
passed version of H.R. 4961. The provision on tip reporting and tip 
allocation contained in the report of the Committee on Finance on H.R. 
4961 appeared under the heading, "Provision Designed To Improve 
Taxpayer Compliance." Likewise, these matters appeared in separate 
titles. The tip provision appeared in the Senate committee amendment in 
title III. It is thus clear that the committee on conference did not 
confine itself to modifying a matter in disagreement. Rather, it 
inserted new matter that had been approved at no time by either the 
Senate or the House.
I accordingly state that under the provisions of rule XXVIII, paragraph 
2, the conference report is out of order and must be rejected in its 
entirety, since the House of Representatives has already acted thereon.
MR. [ROBERT J.] DOLE [of Kansas]: Mr. President.
THE PRESIDING OFFICER: The conferees went to conference with a complete 
substitute, which gives them the maximum latitude allowable to 
conferees. The standard is that matter en-
-----------------------------------------------------------------------
 9.     Rudy Boschwitz (Minn.).
-----------------------------------------------------------------------


[[Page 710]]

tirely irrelevant to the subject matter is not in order. That standard 
has not been breached. The point of order is not well taken.
The Senator from Kansas.
MR. EAST: Mr. President.
THE PRESIDING OFFICER: The Senator from Kansas has the floor.
MR. DOLE: I am happy to yield.
MR. EAST: I would like to appeal from the ruling of the Chair and I ask 
for the yeas and nays. . . . 
THE PRESIDING OFFICER: Shall the decision of the Chair stand as the 
judgment of the Senate?
MR. [HOWARD H.] BAKER [Jr., of Tennessee]: A parliamentary inquiry. An 
"aye" vote sustains the ruling of the Chair. Is that correct?
THE PRESIDING OFFICER: The Senator is correct. . . . 
Are there any other Senators in the Chamber desiring to vote?
The result was announced-yeas 68, nays 27. . . . 
So the ruling of the Chair was sustained as the judgment of the Senate.
MR. DOLE: Mr. President, I move to reconsider the vote by which the 
ruling of the Chair was sustained.
MR. BAKER: I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Parliamentarian's Note: Section 801 of the Commerce, Justice, State, 
and the Judiciary Appropriations Act for fiscal year 2001 (as enacted 
by reference to H.R. 5548 in Pub. L. No. 106-553) provided that at the 
beginning of the 107th Congress the Presiding Officer of the Senate 
would (in a manner of speaking) turn back the clock and apply all 
precedents under Senate Rule XXVIII (re-lating to the scope of 
conference) as in effect at the end of the 103d Congress-notably 
including the above ruling of Aug. 19, 1982, to the effect that any 
matter "not entirely irrelevant" would be considered within scope-
notwith-standing the intervening decision by the Senate on appeal from 
a ruling of its Presiding Officer on Oct. 3, 1996 (142 CONG. REC. 
S11228-30 (daily ed.), 104th Cong. 2d Sess.). On that occasion, the 
Senate overturned a ruling of the Chair that the inclusion in a 
conference report of a special labor-law provision not contained in 
either the House bill or the Senate amendment exceeded the scope of 
conference, and interpreted that result on appeal as tantamount to a 
change in its rules, vitiating its scope rule entirely. There the 
matter stood for nearly two sub-sequent Congresses. Before any 
documentation in this volume of the events in the Senate on Oct. 3, 
1996, they were overtaken by the enactment of section 801 and its 
reinstatement of the earlier state of Senate practice exemplified by 
the above ruling of Aug. 19, 1982.


[[Page 711]]

Conference as Limited to Matters in Disagreement; Inclusion of New 
Criteria for Waiver of Restrictions in Conference Language
Sec.    19.5 Conferees must confine themselves to the differences 
committed to them and may not include subjects not within the 
disagreements between the two Houses.
On Aug. 19, 1937,(10) the following occurred in the House:

MR. [WILLIAM M.] WHITTINGTON [of Mississippi]: Mr. Speaker, I call up 
the conference report on the bill H.R. 7646, an act to amend an act 
entitled "An act authorizing the construction of certain public works 
on rivers and harbors for flood control, and for other purposes", 
approved June 22, 1936, and ask unanimous consent that the statement 
may be read in lieu of the conference report. . . . 
MR. [JOHN] TABER [of New York]: Mr. Speaker, I make a point of order 
against the report on the ground it exceeds the range of the 
conference. The first amendment attempts to deal with an act of June 
15, 1936, while the matters in difference between the two Houses were 
entirely confined to the act of June 22, 1936. . . . 
THE SPEAKER:(11) The Chair is prepared to rule.
The gentleman from New York [Mr. Taber] makes the point of order that 
the conferees have exceeded their au-thority in agreeing to Senate 
amendment No. 1, which is in the following language:

Provided further, That if after investigation the President finds that 
any city or town is by reason of its financial condition unable to 
comply with the requirements of section 3 as to local cooperation he is 
hereby authorized to waive such requirements in whole or in part.

This was the original Senate amendment placed in the House bill. In 
lieu of the Senate amendment, the conferees have agreed to the 
following provision:

Provided further, That if after investigation the President finds that 
States, political subdivisions thereof, or other responsible local 
agencies are unable by reason of their financial condition to comply 
with the requirements as to local cooperation with respect to providing 
lands, easements, and rights-of-way for any projects authorized by the 
Flood Control Act of June 15, 1936 (Public Act No. 678, 74th Cong.), 
the Flood Control Act of June 22, 1936 (Public Act No. 738, 74th 
Cong.), and by this amending act, he is authorized to waive such 
requirement on any individual project not to exceed 50 percent of the 
estimated costs of the lands, easements, and rights-of-way.

In other words, the conferees by agreeing to the language last read by 
the Chair, have very largely increased the power that was not covered 
by the 
-----------------------------------------------------------------------
10.     81 CONG. REC. 9376-79, 75th Cong. 1st Sess.
11.     William B. Bankhead (Ala.).
-----------------------------------------------------------------------


[[Page 712]]

House provision and was not covered by the original Senate amendment to 
the House bill.
There is a long and consistent line of decisions and precedents holding 
that such powers are clearly beyond the authority of conferees and the 
Chair regretfully feels compelled to sustain the point of order.(12) 
Modifying Text Not in Disagreement
Sec.    19.6 Where the Senate adopted 30 amendments to a concurrent 
resolution, but left much of the resolution unchanged, a conference 
report proposing action on all of the resolution following the 
resolving clause, thus including matter not in disagreement, was held 
not in order.
On June 10, 1953,(13) Mr. Louis E. Graham, of Pennsylvania, called up 
the conference report on House Concurrent Resolution 29, favoring the 
granting of permanent resident status to certain aliens. After the 
Clerk read the report, Mr. Francis E. Walter, of Pennsylvania, raised a 
point of order.
MR. WALTER: Mr. Speaker, I make the point of order against the 
conference report that the report contains names that were not in 
disagreement and deletes some of the names that were in agreement, so 
that there was nothing before the conference to change in these 
instances.
MR. GRAHAM: I concede the point of order, Mr. Speaker.
THE SPEAKER:(14) The Chair notes that the Senate adopted 30 amendments 
to this House concurrent resolution, but a large part of the 
resolution, as the gentleman from Pennsylvania [Mr. Walter] states, has 
not been amended. The conference report proposes action on all of the 
concurrent resolution following the resolving clause, thus including 
portions which are not in disagreement. The conferees obviously have 
exceeded their jurisdiction, and the point of order is sustained.

Broadening Coverage of Provision Beyond Language in Disagreement
Sec.    19.7 Where one House strikes out of a bill of the other House all 
after the enacting clause and inserts a new text, House conferees, 
under Rule XXVIII clause 3, may not include in their report a mod-
ification of a proposition which is beyond the scope of
-----------------------------------------------------------------------
12.     See also 99 CONG. REC. 6354-57, 83d Cong. 1st Sess., June 10, 
1953.
13. 99 CONG. REC. 6354-57, 83d Cong. 1st Sess.
14.     Joseph W. Martin, Jr. (Mass.).
-----------------------------------------------------------------------


[[Page 713]]

that proposition as committed to conference.
On Dec. 14, 1971,(15) Mr. Wright Patman, of Texas, called up the 
conference report on S. 2891, to amend and extend the Economic 
Stabilization Act of 1970. Mr. H. R. Gross, of Iowa, raised a point of 
order against the conference report.

MR. GROSS: Mr. Speaker, I make a point of order against the conference 
report on S. 2891 on the basis that the House managers exceeded 
their authority, did not confine themselves to the differences 
committed to them and on the basis that the managers' report contains 
matter clearly not germane to the matter in disagreement, all in 
flagrant violation of clause 3, rule XXVIII(16) and the precedents of 
the House of Representatives.
The Senate-passed bill contained a section 3 which in effect waives the 
provisions of the Federal Pay Comparability Act of 1970-Public Law 91-
656-and directs the President to put into effect January 1, 1972, pay 
adjustments for the three statutory sala-ry systems-General Service, 
Foreign Service, and Veterans' Administration Medicine and Surgery-in 
an amount not to exceed the pay guidelines under the Economic 
Stabilization Act or not greater than the actual comparability 
adjustments.
The House-passed bill contained no such section 3.
The conference report, as agreed to by the conferees, contains section 
3 with two significant changes that are clearly not germane to the 
section 3 as passed by the Senate.
First, section 3 in the conference report contains an additional 
provision which raises the maximum pay limitation applicable to 
employees of the Senate and House of Representatives from level 5 to 
level 4 of the Executive Salary Schedule. This is a proposition which 
was clearly not committed to the Conference Committee.
Second, the conference report in section 3 eliminated the Senate-passed 
provision which provided that no pay adjustment under the Federal 
Statutory Pay System could exceed comparability based on the 1971 
Bureau of Labor Statistics Survey.
In essence, Mr. Speaker, the conferees not only eliminated a 
restriction on the amount of pay adjustment for the three statutory 
salary systems but they also increased rates of pay for groups of 
employees-those employees of the House and the Senate-who were not 
specifically cited in either the Senate- or House-passed bills.
Clause 3 of rule XXVIII of rules of the House reads in part as follows:

Moreover, their report shall not include matter not committed to the 
conference committee by either House, nor shall their report include a 
modification of any specific topic, question, issue, or proposition 
committed to the conference committee by either or both Houses if that 
modi-
-----------------------------------------------------------------------
15.     117 CONG. REC. 46779, 46780, 92d Cong. 1st Sess.
16.     House Rules and Manual Sec. 913(a) (1997).
-----------------------------------------------------------------------


[[Page 714]]

fication is beyond the scope of that specific topic, question, issue, 
or proposition as so committed to the Conference committee.

The rule was actually strengthened and tightened up in the Legislative 
Reorganization Act of last year in order to make it abundantly clear 
that no specific topic, question, issue, or proposition could be agreed 
to by the conferees unless committed to the Confer-ence Committee by 
either or both Houses. . . . 
THE SPEAKER:(17) The Chair is ready to rule.
The gentleman from Iowa (Mr. Gross) makes a point of order against the 
conference report on the bill S. 2391 on the ground that the conferees 
on the part of the House have exceeded their authority as defined in 
clause 3 of rule XXVIII by including matter not submitted to conference 
by either House.
Specifically, the gentleman from Iowa asserts that the conferees have 
broadened that provision of the Senate bill which authorizes 
comparability adjustments in the rates of pay of each Federal statutory 
pay system covered by the Federal Pay Comparability Act of 1970 at a 
rate not in excess of 5.5 percent, effective after January 1, 1972.
The House amendment contained no comparable provision. As stated in the 
joint statement of the managers on page 22, the conferees have adopted 
the Senate provision with a "clarifying amendment" to assure that the 
comparability adjustments be made not only in the "statutory pay 
systems" as that term is defined in 5 U.S.C. 5301(c), but also in "all 
other Federal pay systems" covered by the Federal Pay Comparability Act 
of 1970; namely, those under which rates of pay are fixed by 
administrative action under 5 U.S.C. 5307. This would include employees 
in the executive, legislative, and judicial branches and employees of 
the District of Columbia whose pay is disbursed by administrative 
action. It would also include employees whose pay is disbursed by the 
Secretary of the Senate or the Clerk of the House.
The Chair is compelled to hold that the conferees, by deleting the word 
"statutory" in the Senate bill, have broadened the coverage of the 
comparability adjustments beyond the scope of the Senate bill or the 
House amendment. The Chair therefore sustains the point of order.

Parliamentarian's Note: As stated in argument on the point of order, 
the conference report also included a provision which raised the 
maximum pay limitation applicable to congressional employees. This 
provision was not in the Senate bill or in the House amendment, and 
provided further grounds for sustaining the point of order.
Point of Order on Scope; Clarifying Language in Disagreement
-----------------------------------------------------------------------
17.     Carl Albert (Okla.).
-----------------------------------------------------------------------


[[Page 715]]

Sec.    19.8 House conferees may not under Rule XXVIII clause 3,(18) 
include in a conference report a new topic or issue not committed to 
conference by either House, yet it is in order to include language 
clarifying and limiting the duties imposed on an executive official by 
one House's version where that modification does not expand the 
authority conferred in that version or contained in existing law, which 
may be considered the implicit position of the other House. 
The point of order raised on July 29, 1975,(19) against the conference 
report on the bill H.R. 3130, amending the National Environmental 
Policy Act to clarify the federal and state roles in the preparation of 
certain environmental analyses of certain federal programs, illustrates 
the complexity of determining questions about the "scope of 
conference." 
Where differences in language are committed to conference, the Chair 
must sometimes explore not only the text of the House bill and the 
Senate amendment but provisions of existing law on the subject to 
determine whether conference language is a "germane modification" of 
the matter in disagreement or whether it crosses the boundary and 
introduces matter not committed to conference by either House or is 
"beyond the scope" of the proposition before the conferees. 
The rather detailed argument on this conference report illustrates the 
analysis sometimes required by the Chair to reach a decision in these 
matters.

MRS. [LEONOR K.] SULLIVAN [of Missouri]: Mr. Speaker, I call up the 
conference report on the bill (H.R. 3130) to amend the National 
Environmental Policy Act of 1969 in order to clarify the procedures 
therein with respect to the preparation of environmental impact 
statements, and ask unanimous consent that the statement of the 
managers be read in lieu of the report.
The Clerk read the title of the bill.
THE SPEAKER:(20) Is there objection to the request of the gentlewoman 
rom Missouri?
POINT OF ORDER
MR. [JAMES J.] HOWARD [of New Jersey]: Mr. Speaker, I make a point of 
order against the conference report.
-----------------------------------------------------------------------
18.     House Rules and Manual Sec. 913a (1997).
19.     121 CONG. REC. 25515-17, 94th Cong. 1st Sess.
20.     Carl Albert (Okla.).
-----------------------------------------------------------------------


[[Page 716]]

THE SPEAKER: The gentleman from New Jersey will state his point of 
order.
MR. HOWARD: Mr. Speaker, I raise a point of order against the 
conference report because it contains material outside the scope of the 
conference.
Specifically, the language that is objectionable is that requiring the 
responsible Federal official to provide early notification to and 
solicitation to the view of any other State or Federal land management 
entity of any action or alternative thereto which may have significant 
impacts upon such State or affected Federal land management entity and 
to assess these impacts if there is disagreement upon them. Neither the 
House nor Senate versions of this bill require the Federal official to 
take these actions. While the amendment is not clear as to what the 
Federal official is required to give notification of, it is clearly not 
within the text of the House bill or Senate amendment.
Consequently, it is outside the scope of the conference which deals 
only with the responsibilities of the State agency or official to 
prepare an impact statement and requires the responsible Federal 
official to furnish guidance and participation in the preparation of 
such statement and its independent evaluation. Any search of the Senate 
amendment and the House bill or the two taken together demonstrates no 
requirement for notification to States or Federal land management 
entities or the solicitation of their views. More-over, the requirement 
is imposed upon the Federal official to determine if there are 
disagreements and to assess the impacts if there are such 
disagreements. Such concepts are not contained within the House bill or 
State amendment.
This is further emphasized by the date which limits this new 
requirement to after January 1, 1976. From the period of the effective 
date to January 1, 1976, the requirements that are delineated by the 
House bill and the Senate amendment would be in effect after January 1, 
1976, a completely new and additional requirement would go into effect. 
This limitation of data is a clear demonstration that there are two 
different requirements imposed by the amendment before the conference 
report. One that was within the framework of the earlier consideration 
of the Houses and another requirement that was not conceived of in 
either House before the conference. Consequently, it is clear that the 
conference report is subject to a point of order.
MRS. SULLIVAN: Mr. Speaker, I yield to the gentleman from California, 
the distinguished chairman of the subcommittee (Mr. Leggett) to speak 
on the point of order.
MR. [ROBERT L.] LEGGETT [of California]: Mr. Speaker, I rise in 
opposition to the point of order. Under Deschler's procedures the 
appropriate sections, and especially section 15 in chapter 33, 
obviously the conference report has to be within the scope of the 
disagreement between the House and the Senate. We have attempted to do 
that and we have done it. We have had that precisely in mind at all 
times. We have had the Public Works Committee jointly participating in 
our conference and at all times our effort has been to narrow the scope 
of this rather subjective language.


[[Page 717]]

It was originally conceived that the proviso that is complained of that 
allegedly imposes these new duties might require a complete new 
environmental impact statement prepared by the Federal agency. We 
limited that. No longer are they required to submit a new Federal 
impact statement. They are required to make views and the views then 
are incorporated in the regular House version of an environmental 
impact statement.
The implication was that this would be too troublesome for the Federal 
authorities and, therefore, they would be required to make a report 
every time under the Senate bill; so we eliminated that and we said 
they only have to report at those times when they have a disagreement.
There was some confusion as to what was of major interstate 
significance and what was required and who is required to be notified. 
There was some implication we would have to notify the Sierra Club and 
various conservation agencies. So we said no, let us limit that to just 
the Federal entities that are involved, the Federal entities like the 
Federal Land Management Agency and the Park Service that have an 
interest in the conflict.
Under the provision of the Senate bill, notice would be required and 
reports would be required; so to spell it out, that is all we want is 
notification and to have them submit their views and it is well within 
the framework of the language the Senate had.
We did change the date, but we changed the date to make it less 
onerous, rather than to require a date which was some time ago.
The Senate bill actually had the June 1 change date.
To be sure, this bill is different from the House bill, but that was 
the purpose of the conference, to reconcile the differences between the 
House and the Senate. The bill we have brought here is not as broad and 
confusing as the Senate bill. We have some provisos that specifically 
limit the Senate language. We well admit that our agreement has to be 
within the scope. This is well within that reasonable connotation of 
the scope.
Mr. Speaker, I submit the point of order ought to be overruled.
MR. [JOHN D.] DINGELL [of Michigan]: Mr. Speaker, I rise in opposition 
to the point of order.
Mr. Speaker, the point of order is without merit. The provisions of 
H.R. 3130, as introduced in the House and I cite now the first words:

To amend the National Environmental Policy Act of 1969 in order to 
clarify the procedures therein with respect to environmental impact 
statements.

That, Mr. Speaker, is extremely broad language and in and of itself I 
would submit to the Chair is quite sufficient to cover the language of 
the conference report in full, including the language of the conference 
report complained about by the gentleman from New Jersey.
The Senate language with regard to the title says as follows:

To amend the National Environmental Policy Act of 1969 in order to 
clarify procedures therein with respect to the preparation of 
environmental impact statements.


[[Page 718]]

Now, the gentleman from New Jersey, as I understand it, complains about 
small IV, wherein it is set out, I believe this is the language to 
which the gentleman addresses the complaint:

(iv) after January 1, 1976, the responsible Federal official provides 
early notification to, and solicits the views of, any other State or 
any Federal land management entity of any action or any alternative 
thereto which may have significant impacts upon such State or affected 
Federal land management entity and, if there is any disagreement on 
such impacts, prepares a written assessment of such impacts and views 
for incorporation into such detailed statement.

Mr. Speaker, if we will refer now to the language of the Senate bill, 
we will find at line 21 on page 2 of the Senate-passed amendment the 
following words:

Provided, That, in any statement on any such action prepared after June 
1, 1975, the responsible Federal official shall prepare independently 
the analysis of any impacts of and alternatives to the action which are 
of major interstate significance:

The action of the conferees constricts in (iv) this undertaking which 
is imposed upon the Federal official involved and it requires instead 
that he notifies the effective State or Federal officials of actions of 
this character.
Coming further on down, one will see that imposed under the Senate bill 
is, "Provided further, the procedures set forth in this paragraph shall 
not relieve the Federal official of his responsibilities for the scope, 
objectivity, and content of the entire statement or any of the 
responsibilities under the act."
So, we are maintaining under the Senate bill, maintaining the 
responsibilities of the responsible Federal official and clearly within 
the responsibility of the Federal official responsible is the 
preparation of the impact statement, is the duty to receive the advice 
of effective State and Federal agencies. That is clearly contained 
within the provisions of section 102 of the National Environmental 
Policy Act.
Again, Mr. Speaker, I would point out that the action of the conferees 
restricts somewhat that responsibility and enumerates a specific 
responsibility which is imposed upon him to do specific things which 
are more broadly set out elsewhere in the National Environmental Policy 
Act, so again the action of the conferees here is clearly within the 
responsibilities of the conferees in meeting and in resolving 
differences within the periphery of the differences between the House 
and the Senate bills. So, for that reason, Mr. Speaker, I would point 
out that the point of order is not only lacking in merit, but appears 
to me to be clearly frivolous.

THE SPEAKER: The Chair is bothered over one point here and would like 
clarification if it can be given by either the proponents or those 
opposed to the point of order. That is, whether under the existing law 
or authority Federal officials have the authority or are required to 
consult with State officials and pertinent Federal agencies; something 
that the Chair does not find in either the Senate amendment or the 
House bill.

MR. LEGGETT: Mr. Speaker, one has to understand what the law is, and 
the law is made up really of the law which 


[[Page 719]]

we have in the appropriate sections enacted by the Congress and in the 
guidelines which are promulgated by the Council for Environmental 
Quality and in the regulations which are promulgated by the highway 
agency. Whenever we prepare an environmental impact statement, we have 
to send out notification to a large number of people and we have to 
solicit views, and then we have to digest those views and make up a 
report.
Now, what we intended to do with this language of early notification 
was to limit the requirements of what the existing law and regulations 
require in the preparation of a normal environmental EIS, or 
environmental impact statement. While we spell it out in the language 
here, which was different than what the Senate had, this is the only 
possible way that we could kind of split hairs and limit the activity 
and recognize what was going on at the present time but not require 
that they go as far as what would be required in the preparation of the 
syllabus.
THE SPEAKER: Is it the gentleman's statement that the Federal 
Government is either authorized by law or otherwise does have legal 
authority to consult with State and Federal agencies?
The Chair would like the answer of the gentleman from Michigan (Mr. 
Ruppe).
MR. [PHILIP E.] RUPPE [of Michigan]: Mr. Speaker, I would like to take 
this opportunity of quoting existing law:

Prior to making any detailed statement, the responsible Federal 
official shall consult with and obtain the comments of any Federal 
agency which has jurisdiction by law or such expertise with respect to 
any environmental impact involved. Copies of such statement and the 
comments and the views of the appropriate Federal, State and local 
agencies which are authorized to develop and enforce environmental 
standards shall be made available to the President, the Council on 
Environmental Quality and to the public.

I believe that this information is required and notification given.
THE SPEAKER: The Chair recognizes the gentleman from New Jersey.
MR. HOWARD: Mr. Speaker, the answer to the Speaker's inquiry is no.
THE SPEAKER: How does the gentleman apply that answer to the 
legislation cited by the gentleman from Michigan.
MR. HOWARD: I understood the Speaker to ask whether there was any 
Federal law requiring this, and I said no, there is no Federal law 
requiring this; it is in the regulations.
THE SPEAKER: The Chair said "lawful authority." It did not say 
"statutory law."
MR. LEGGETT: Mr. Speaker, may I be heard on one authority?
MR. RUPPE: Mr. Speaker, I was quoting a moment ago from Section 102 of 
the National Environmental Policy Act of 1969. That is the law. That is 
the act.
THE SPEAKER: The Chair seems to think that the statute that the 
gentleman from Michigan has read answered the question which the Chair 
asked.
MR. [E. G.] SHUSTER [of Pennsylvania]: Mr. Speaker, I would ask the 
Speaker's indulgence to listen to that again. I believe it does not say 
"other states," but rather it says "Copies of such statement and the 
comments and 


[[Page 720]]

views of the appropriate Federal, State, and local agencies."
Nowhere here does it refer to "other states," which makes a significant 
difference, the difference being the appropriate State is the State 
involved, not some adjacent State, for example.
MR. LEGGETT: Mr. Speaker, if I could be heard on one more item, the 
gentleman has ignored the Intergovernmental Cooperation Act, 
particularly OMB Regulation A95, that requires that whenever an 
application for a Federal grant affects a multiplicity of 
jurisdictions, that all jurisdictions have to receive notification.
MR. DINGELL: Mr. Speaker, there is another section of the Environmental 
Policy Act, and that is section 102(F), under which the responsible 
Federal official is found under the duty to "make available to States, 
counties, municipalities, institutions, and individuals advice and 
information useful in restoring, maintaining, and enhancing the quality 
of the environment."
THE SPEAKER: The Chair will hear from the gentleman from New Jersey, 
and then the Chair will be prepared to rule.
MR. HOWARD: Mr. Speaker, in reference to what the gentleman from 
Michigan said, I would only say "make available," as he stated, is not 
"consult."
THE SPEAKER: The Chair is prepared to rule.
The Senate amendment contained a proviso "That, in any statement on any 
such action prepared after June 1, 1975, the responsible Federal 
official shall prepare independently the analysis of any impacts of and 
alternatives to the action which are of major interstate significance."
As explained on pages 4 and 5 of the joint statement, the conferees 
interpreted this provision in the Senate amendment to impose a broad 
range of new responsibilities on the appropriate Federal official to 
make informed determinations of actions which have a major interstate 
significance.
In arriving at such determinations, it would appear that the Senate 
language would reasonably require the Federal official to consider the 
views of each affected State or Federal agency and therefore to notify 
the States and their appropriate agencies and to solicit their views in 
order to determine major interstate significance.
As indicated on page 5 of the joint statement, the conferees have 
sought to eliminate the possibility of too broad an interpretation of 
the impacts referred to in the Senate proviso, and have thus added 
language which replaces the term "major interstate significance" with 
provisions which, though stated differently, appear to restrict or 
limit the meaning of the Senate language and which do not at the same 
time add new requirements for consultation not already authorized by 
law.
The Chair feels that such a clarification is within the permissible 
limits of clause 3, rule XXVIII, so long as it can be shown to be a 
restrictive clarification and limitation of, and not an expansion upon, 
the authorities conferred in either the House or Senate version 
thereof.
The Chair has listened to the arguments on the point of order and the 
responses to his inquiries and believes that the language placed in the 
confer-


[[Page 721]]

ence report meets this test. The Chair therefore overrules the point of 
order.
Points of Order Relating to the Scope of the Matter Committed to 
Conference
Sec.    19.9 Where one House has passed a bill of the other with an 
amendment in the nature of a substitute, the House rule prohibits the 
inclusion in a conference report of additional topics not committed to 
conference, or a provision "beyond the scope" of the differences 
between the two versions; and precedents predating the 1971 amendment 
to Rule XXVIII clause 3, may not be applicable when analyzing a point 
of order raised under the new rule. 
When the conference report on H.R. 12168, the Natural Gas Pipeline 
Safety Act Amendments of 1976, was called up for consideration, a point 
of order was raised by one of the House managers against the report. 
The basis of the point of order was that while the Senate amendment 
authorized certain civil suits to enforce provisions of the law, and 
the House bill contained no provision (relying on the existing law 
which did not permit such civil actions), the addition in the 
conference version of new authority for state officials to preempt such 
actions was ruled to be an "additional topic" not committed to 
conference. 
The proceedings and a portion of the argument on the point of order are 
included here:(1) 
MR. [HARLEY O.] STAGGERS [of West Virginia]: Mr. Speaker, I call up the 
conference report on the bill (H.R. 12168) to amend the Natural Gas 
Pipeline Safety Act of 1968 to authorize additional appropriations, and 
for other purposes, and ask unanimous consent that the statement of the 
managers be read in lieu of the report.
The Clerk read the title of the bill.
POINT OF ORDER
MR. [CLARENCE J.] BROWN of Ohio: Mr. Speaker, I make a point of order 
against the conference report on H.R. 12168 on the grounds that it 
violates clause 3 of rule 28 of the House of Representatives in that it 
contains a modification beyond the scope of issues committed to the 
conference committee. . . . 
THE SPEAKER PRO TEMPORE:(2) Will the gentleman from Ohio (Mr. Brown) 
advise the Chair specifically as to what language in the conference 
report he objects to. The Chair has the conference report before it.
-----------------------------------------------------------------------
 1.     122 CONG. REC. 32719, 32720, 94th Cong. 2d Sess., Sept. 27, 1976.
 2.     John J. McFall (Calif.).
-----------------------------------------------------------------------


[[Page 722]]

MR. BROWN of Ohio: Yes, Mr. Speaker. It is in the conference report on 
page 4, approximately the seventh line. The language to which I object 
says, "(or to the applicable State agency in the case of a State which 
has been certified under section 5(a) . . ."
MR. [JOHN D.] DINGELL [Jr., of Michigan]: Mr. Speaker, if the gentleman 
will yield, will the gentleman restate that, please. I am looking for 
it, and I do not find it.
MR. BROWN of Ohio: It is under subparagraph (b), in paragraph (1) on 
page 4, about the seventh line; it says as follows:

Prior to the expiration of 60 days after the plaintiff has given notice 
of such alleged violation to the Secretary (or to the applicable State 
agency in the case of a State which has been certified under section 5
(a).

Then, Mr. Speaker, parenthetical matter has been added in subsection 
(b)(2), beneath that, which says as follows:

If the Secretary (or such State agency) has commenced and is diligently 
pursuing administrative proceedings or the Attorney General of the 
United States (or the chief law enforcement officer of such State) . . 
 

Mr. Speaker, none of those parentheticals were in the Senate bill. They 
were added in the language at the conference; and therefore, I suggest 
they are beyond the scope of the conference and do add to the State 
consideration matters which were neither in the Senate bill nor in the 
House bill.
THE SPEAKER PRO TEMPORE: Does the gentleman from Michigan (Mr. Dingell) 
wish to be heard on the point of order?
MR. DINGELL: Yes, Mr. Speaker. I rise in opposition to the point of 
order.
I first cite several sections of Cannon's Procedures, most specifically 
section 3265, section 3266 and section 3267.
Mr. Speaker, section 3265 states:

Where all of a bill after the enacting clause is stricken out, the 
conference report may include any germane provision.

Section 3266 says:

Where an entire bill has been stricken out and a new text inserted, the 
conferees exercise broad authority and may discard language appearing 
both in the bill and the substitute. . . . 

THE SPEAKER PRO TEMPORE: The Chair is prepared to rule.
The Chair has listened to the arguments and read the statement of the 
managers and would state that the precedents cited by the gentleman 
from Michigan (Mr. Dingell) have since 1970 been somewhat outmoded by 
the new rule which the Chair will cite.
The last portion of the language cited by the gentleman from Ohio in 
parentheses is in the opinion of the Chair new language which 
conceptually was in neither the House bill nor the Senate amendment, is 
not within the scope of the conference, and is a violation of rule 
XXVIII, clause 3, which states:

 . . . nor shall their report include a modification of any specific 
topic, question, issue, or proposition committed to the conference 
committee by either or both Houses if that modification is beyond the 
scope of that specific topic, question, issue, or proposition as so 
committed to the conference committee.


[[Page 723]]

While the Chair agrees with the gentleman from Michigan that 
notification to the relevant State agency is contemplated by existing 
law and is within the scope of conference, that provision added by the 
conferees which would prohibit citizens' suits if a State attorney 
general has commenced judicial proceedings appears to the Chair to 
inject a new exception from the citizens civil action authority which 
was not contemplated in the Senate version or in existing law.
The Chair on that one basis sustains the point of order.
Scope Where Conferees Report an Amendment in the Nature of a Substitute
Sec.    19.10 In any case in which a disagreement to an amendment in the 
nature of a substitute has been referred to conferees it is in order 
for the conferees to report a substitute on the same subject matter, 
but they may not include in the report matter not committed to them by 
either House. They may, however, include in their report in any such 
case matter which is a germane modification of the subjects in 
disagreement.
On Oct. 5, 1951,(3) Mr. James P. Richards, of South Carolina, called up 
the conference report on H.R. 5113, the Mutual Security Act of 1951. 
Mr. Brent Spence, of Kentucky, made a point of order against the 
report, arguing that

It amends the Export-Import Bank Act, and provides that the Director 
for Mutual Security shall be a member of the Board of Directors of the 
Export-Import Bank. Therefore, Mr. Speaker, I ask that the point of 
order be sustained. The conferees went beyond the scope of their 
authority in placing this provision in the conference report, a 
provision which had not been considered by either the House or the 
other body, and which provision amends an act which was not under 
consideration. . . . 
THE SPEAKER:(4) Does the gentleman from South Carolina desire to be 
heard?
MR. RICHARDS: Mr. Speaker, may I be heard briefly on the point of 
order?
When this bill went to conference, the situation confronting the 
conferees was this: The Senate in its consideration of the bill as an 
amendment struck out all after the enacting clause and inserted a new 
bill. According to some of the old precedents, and to a rule in force 
at one time, it was my understanding that this type of parliamentary 
situation would open the bill wide with the sky as the limit. It will 
be re-
-----------------------------------------------------------------------
 3.     97 CONG. REC. 12693, 12702-04, 82d Cong. 1st Sess.
 4.     Sam Rayburn (Tex.).
-----------------------------------------------------------------------


[[Page 724]]

membered that under the Reorganization Act of 1946, the rule was 
changed to provide that any conference report must be confined to the 
subject matter committed to the conference or to germane modifications 
of it. In this particular case we had in practical effect two bills 
before the conferees. . . . 
THE SPEAKER: The Chair is ready to rule. . . . 
The jurisdiction of conferees with reference to amendments in the 
nature of a substitute, as we have before us, is covered by section 135
(a) of part 3 of the Legislative Reorganization Act of 1946. This 
provision, which appears as section 947 of the House Rules and Manual,
(5) does not change the precedents, but merely codifies the long-
standing practice of the House.
The provision is as follows:

Sec. 135. (a) In any case in which a disagreement to an amendment in 
the nature of a substitute has been referred to conferees, it shall be 
in order for the conferees to report a substitute on the same subject 
matter; but they may not include in the report matter not committed to 
them by either House. They may, however, include in their report in any 
such  case matter which is a germane modification of the subjects in 
disagreement.
(b) In any case in which the conferees violate subsection (a), the 
conference report shall be subject to a point of order.

While the rule authorizes conferees to report a substitute on the same 
subject matter, it also restricts them to matter committed to them by 
one of the Houses. In the case before us neither House committed to the 
conferees a provision for making the Mutual Security Director a member 
of the board of the Export-Import Bank. And while the rule permits 
germane modifications of the matter in disagreement, such alteration of 
the board of directors of the Export-Import Bank is an expansion and 
not a modification of the matter in disagreement.
The Chair thinks the point of order is good and, therefore, sustains 
the point of order.(6) 
Reconciling Divergent Treatments of Subject
Sec.    19.11 Where a House amendment in the nature of a substitute 
authorized endowment and operating payments for specific institutions 
of higher education, and the Senate substitute therefor: (a) conferred 
land-grant college status on those institutions; (b) changed the form 
of the authorizations to 
-----------------------------------------------------------------------
 5.     This reference is, of course, to the 1951 edition of the House 
Rules and Manual. The provision referred to was made part of the 
standing rules of the House in the following Congress, appearing in 
this form for the first time as Rule XXVIII clause 3, House Rules and 
Manual Sec. 913a (1997).
 6.     See also 117 CONG. REC. 46779, 46780, 92d Cong. 1st Sess., Dec. 
14, 1971.
-----------------------------------------------------------------------


[[Page 725]]

include a direct appropriation; and (c) included conforming amendments 
to other legislation related to land-grant status, House conferees 
remained within the scope of the differences between the two versions 
as required by Rule XXVIII clause 3, by including in their report the 
Senate provision conferring land-grant status and a reduced House 
figure for the endowment payment.
On June 8, 1972,(7) Mr. Joe D. Waggonner, Jr., of Louisiana, raised a 
point of order against the conference report on S. 659, the Higher 
Education Amendments of 1972. The bill had been considered in the House 
as H.R. 7248 under a rule(8) which authorized points of order against 
provisions therein that were properly under the jurisdiction of 
committees other than the Committee on Education and Labor. A point of 
order was raised pursuant to this rule and sustained against a 
provision which conferred land-grant college status on institutions on 
Guam and the Virgin Islands. After passing H.R. 7248 the House 
substituted this bill for the language of S. 659. The Senate concurred 
in this House amendment in the nature of a substitute with a substitute 
of its own which contained the provision stricken from H.R. 7248 on the 
point of order noted above. Mr. Waggonner continued,

The conferees have agreed to most of the Senate amendment.
The statement of the managers is as follows:

The conference agreement retains the House provision with respect to 
endowment grants and the Senate conforming amendments relating to land 
grant status for such institutions. The Senate amendments are modified 
so as to provide an annual authorization in the Act equivalent with 
that provided under the Senate amendments.

Thus, it is clear, Mr. Speaker, that what the conferees did was to 
agree in conference to matter which had earlier  been subject to a 
valid point of order in the House of Representatives.

Carl D. Perkins, of Kentucky, Chairman of the Committee on Education 
and Labor, responded to the point of order.

MR. PERKINS:  . . .  The House amendment authorized a lump sum 
appropriation of $3 million for each institution, plus an annual 
appropriation of $450,000 for each for general 
-----------------------------------------------------------------------
 7.     118 CONG. REC. 20280, 20281, 92d Cong. 2d Sess.
 8.     H. Res. 661, 117 CONG. REC. 37765, 92d Cong. 1st Sess., Oct. 27, 
1971.
-----------------------------------------------------------------------


[[Page 726]]

operating expenses in lieu of land-grant status for the institution.
The Senate amendment provided for endowments and payment of operating 
expenses, but in slightly different form. Land-grant status was 
conferred on the two institutions, with a cash endowment in lieu of the 
receipts from the sale of land scrip, plus conforming amendments to 
other related legislation which is related to land-grant status.
The issue before the conferees, therefore, was not whether aid should 
be extended to the College of the Virgin Islands and the University of 
Guam, but only the form such aid should take.
The conferees adopted the Senate approach of conferring land-grant 
status on the two institutions instead of assistance in lieu of land-
grant status, but limited the amount of the endowment payment to the 
House figure of $3 million. The Senate conforming amendments were 
modified to assure that the colleges' payments for general operating 
expenses did not exceed the amounts they would have received if they 
were located within the United States.
The provision reported by the conferees, therefore, represents a 
compromise between the provisions of both bills committed to 
conference. It certainly remains well within the scope of the issues 
presented to the conferees. That rule to which the distinguished 
gentleman from Louisiana referred applied only to the consideration of 
the bill during the House debate.
Mr. Speaker, the point of order should not be sustained.

The Speaker, Carl Albert, of Oklahoma, gave the following ruling:

. . . Since the conference report on the bill S. 659 was filed some 2 
weeks ago, the Chair has carefully scrutinized the agreements that were 
reached in conference to be sure that the managers have not violated 
the rules of the House with respect to conference reports. Obviously 
where, as here, the House amendment in the nature of a substitute and a 
Senate substitute therefor are both extensive and comprehensive 
legislative proposals, the task of writing a conference compromise is a 
difficult and painstaking task. . . . 
. . . The Chair has examined the parts of the conference report to 
which the point of order is directed and the relevant portions of the 
statement of the managers. The Chair is satisfied that the managers 
have conformed to the rules of the House, and therefore overrules the 
point of order.
Point of Order That Conferees Have Exceeded Scope; Exceeding Benefits 
in Either Version 
Sec.    19.12 Where portions of a conference report on veterans' 
benefits contained higher entitlements for vocational rehabilitation 
assistance per month than those contained in either the House bill or 
the Senate amendment, the Speaker 


[[Page 727]]

held that the conferees had exceeded the scope permitted them by Rule 
XXVIII clause 3 and sustained a point of order against the report. 
On Aug. 22, 1974,(9) when the conference report on the Vietnam-Era 
Veterans' Readjustment Act was called up for consideration, a point of 
order was lodged against the report on the ground that the conferees 
had exceeded the scope of differences committed to them. After argument 
by the Member pressing the point of order, Mr. H. R. Gross, of Iowa, 
and the rebuttal by the chairman of the Committee on Veterans' Affairs, 
Mr. William Jennings Bryan Dorn, of South Carolina, the Chair sustained 
the point of order. 
CONFERENCE REPORT ON H.R. 12628, VIETNAM ERA VETERANS READJUSTMENT 
ASSISTANCE ACT OF 1974
MR. DORN: Mr. Speaker, I call up the conference report on the bill 
(H.R. 12628) to amend title 38, United States Code, to increase the 
rates of vocational rehabilitation, educational assistance, and special 
training allowances paid to eligible veterans and other persons; to 
make improvements in the educational assistance programs; and for other 
purposes, and ask unanimous consent that the statement of the managers 
be read in lieu of the report.
The Clerk read the title of the bill.
THE SPEAKER:(10) Is there objection to the request of the gentleman 
from South Carolina?
POINT OF ORDER
MR. GROSS: Mr. Speaker, I ask to be recognized at the proper time to 
make a point of order against the conference report.
THE SPEAKER: The gentleman can be recognized prior to the reading of 
the statement of the managers on the conference report.
Is there objection to the request of the gentleman from South Carolina?
There was no objection.
THE SPEAKER: The gentleman from Iowa is recognized.
MR. GROSS: Mr. Speaker, I raise a point of order against the conference 
report on H.R. 12628, the Veterans Education and Rehabilitation 
Amendments of 1974. The conference report violates clause 3 of rule 
XXVIII in that the conferees exceeded the scope of the conference.
Clause 3 of rule XXVIII states, in part, that the report of conferees:

Shall not include matter not committed to the conference committee by 
either House, nor shall their report include a modification of any 
specific topic, question, issue, or proposition committed to the 
conference committee by either or both Houses if that modification is 
beyond the scope of that specific topic, question, issue, or 
proposition as so com-
-----------------------------------------------------------------------
 9.     120 CONG. REC. 30050-52, 93d Cong. 2d Sess.
10.     Carl Albert (Okla.).
-----------------------------------------------------------------------


[[Page 728]]

mitted to the conference committee. (emphasis added)

H.R. 12628, as approved by this House on February 19, authorized a 13.6 
percent increase in monthly subsistence allowances for veterans 
participating in vocational rehabilitation training and veterans 
educational programs. The Senate, on June 19, adopted an amendment in 
the nature of a substitute that authorized an 18.2-percent increase in 
monthly payments under this legislation. The House subsequently 
disagreed with the Senate amendment and a conference was held.
Sections 2 and 5 of the House-passed bill provided for an increase in 
benefits of 13.6 percent for specific categories of eligible veterans 
and dependents. The corresponding provisions passed by the Senate, 
sections 101 and 213, authorize an increase of 18.2 percent in those 
benefits. The conference report, in sections 101 and 104, clearly 
authorize an increase of 22.7 percent in monthly allowances for those 
same categories of trainees. This modification is beyond the scope of 
the specific disagreement committed to the conference committee and is 
a clear violation of clause 3 of rule XXVIII. . . . 
Mr. Speaker, sections 101 and 104 of the conference report exceed the 
scope of the conference. And I ask that the point of order be 
sustained.
THE SPEAKER: Does the gentleman from South Carolina desire to be heard 
on the point of order?
MR. DORN: I do, Mr. Speaker.
Mr. Speaker, I welcome the opportunity to explain the background of the 
particular provisions of the conference-reported bill which appear to 
be the basis for the gentleman's raising of a point of order.
To simplify my explanation, may I take the example of a single veteran 
who is attending full-time college training. Under the existing law he 
receives an educational allowance of $220 per month. This allowance is 
paid to him directly to assist in bearing his tuition, subsistence, and 
other educational expenses. As passed by the House, H.R. 12628 proposed 
to increase this allowance to $250, representing an increase of 13.6 
percent over the current rate. Following extended hearings and 
deliberations on the part of the Senate in which there was considerable 
support for an added or supplemental partial tuition allowance, which 
would also be payable directly to the veteran, the Senate returned our 
bill with an amendment in the nature of a complete substitute. Probably 
the most significant aspect of the Senate substitute was to provide a 
new rate "package" consisting of an 18-percent increase in the basic 
monthly allowance to $260 for a single veteran, coupled with an 
additional "partial tuition assistance allowance" under a formula which 
would result, in the typical case, a maximum of $720 per school year. 
Accordingly the total assistance package proposed by the Senate 
potentially available for a single veteran, including the partial 
tuition assistance allowance, would approximate $290 per month. . . . 

I think it is also significant to point out that the net fiscal effect 
of adoption of the conferees' recommendations will result in an annual 
savings to the Government of almost a half billion dollars per year 
over the Senate version.


[[Page 729]]

In conclusion, Mr. Speaker, considered in the context of the overall 
rate structure package which was considered by the conferees, it is our 
strong conviction that the agreement on the single educational 
allowance rate contained in the conference bill does not violate either 
the letter or the spirit of rule XXVIII of the House of 
Representatives.
MR. GROSS: Mr. Speaker, may I be heard very briefly further?
THE SPEAKER: The gentleman from Iowa is recognized on his point of 
order.
MR. GROSS: Mr. Speaker, I respectfully submit that the gentleman has 
offered his resistance to the point of order based upon section 102 of 
the bill. My point of order goes to sections 101 and 104 of the 
conference report.
THE SPEAKER: The gentleman is correct.
Does the gentleman from South Carolina desire to be heard on the 
specific point of order made by the gentleman from Iowa? As the Chair 
understood it, the gentleman's argument related primarily to a point of 
order that might have been made on a different section.
MR. DORN: Mr. Speaker, I would like to comment further to the 
distinguished gentleman from Iowa.
The decision of the conferees to drop the partial tuition assistance 
and establish a single basic allowance of $270 for chapter 34 trainees 
encompassed 98 percent of all trainees involved. Since both the House 
and Senate bills set the same percentage increase for trainees under 
Chapter 34, which may be 98 percent of all trainees, and disabled 
veterans training under chapter 31 to make up 2 percent of the 
trainees, the conferees decided to remain consistent to the positions 
of both the House and Senate, and therefore extended the 23 percent 
increase to all classes of veterans.
THE SPEAKER: Is the gentleman arguing correctly to the point of order, 
or is the gentleman, in effect, conceding?
The Chair is prepared to rule.
The gentleman from Iowa makes a point of order against the conference 
report on H.R. 12628, the Veterans Education and Rehabilitation Act 
Amendments of 1974, on the ground that the conferees have exceeded the 
scope of their authority.
Specifically, it is alleged that the conference report provides a 
greater amount of vocational rehabilitation assistance per month and a 
greater apprenticeship or on-the-job training assistance, per month 
than either the House or Senate versions.
The Chair has examined section 101 of the conference report, which 
amends a table in title 38, United States Code, section 1504(b) to 
provide $209 a month in vocational assistance for a veteran with no 
dependents enrolled full time at an educational institution. Section 2 
of the House bill amends the payment figure to provide $193 a month. 
Section 101 of the Senate amendment in the nature of a substitute 
amends the same figure to provide only $201 a month.
The conference amendment clearly exceeds the dollar amount of either 
the House or Senate version.
Similarly, section 104 of the conference report amends a table in title 
38, United States Code, section 1787(b) to provide $196 a month 
assistance during the first 6 months for an individual 


[[Page 730]]

with no dependents, for apprenticeship or on-the-job training.
The House bill provides, in section 5, $182 for that purpose, and the 
Senate amendment provides, in section 213, $189 for that purpose.
The conference report exceeds the dollar amount contained in both the 
House bill and the Senate amendment in the nature of a substitute.
As the conferees have exceeded their authority under clause 3, rule 
XXVIII, the Chair therefore sustains the point of order against the 
conference report.
MOTION OFFERED BY MR. DORN
MR. DORN: Mr. Speaker, I move that the House recede from its 
disagreement to the Senate amendment to the text of the bill and agree 
to the same with the following amendment.
The Clerk read as follows:

Mr. Dorn moves that the House recede from its disagreement to the 
Senate amendment to the text of the bill and agree to the same with the 
following amendment: In lieu of the matter proposed to be inserted by 
the Senate amendment to the text of the bill, insert the following:
That this Act may be cited as the "Vietnam-Era Veterans' Readjustment 
Assistance Act of 1974".
Inclusion of Provision Deleted on Point of Order During Consideration 
of Bill
Sec.    19.13 A special rule permitting points of order to be raised 
against provisions in a House bill on jurisdictional grounds does not 
thereafter serve as a restriction on the authority of House conferees 
to incorporate similar provisions, which had been in a Senate 
substitute, as part of the conference report.
On June 8, 1972,(11) Mr. Joe D. Waggonner, Jr., of Louisiana, rose with 
a point of order against the conference report on S. 659, the Higher 
Education Amendments of 1972.

MR. WAGGONNER: Mr. Speaker, I make the point of order that the 
conference report on S. 659 does not comply with the rules and 
precedents of the House. House Resolution 661, the rule which governed 
the debate on H.R. 7248 provided in part that a point of order would 
lie against provisions in that bill that were properly under the 
jurisdiction of other committees.
Pursuant to this rule a point of order was made by the gentleman from 
Pennsylvania (Mr. Goodling) against the language in title XII relative 
to the creation of land-grant colleges on Guam and the Virgin Islands. 
The Chair on that occasion sustained the point of order and title XII 
was stricken. It was later amended with proper language.
On November 4, 1971, the House passed H.R. 7248 and then in the usual 
manner substituted the language of the House bill for the language of 
S. 659.
-----------------------------------------------------------------------
11.     118 CONG. REC. 20280, 20281, 92d Cong. 2d Sess.
-----------------------------------------------------------------------


[[Page 731]]

On March 1, 1972, the Senate amended S. 659 with an amendment in the 
nature of a substitute for the House amendment in the nature of a 
substitute. Included in the text of this Senate amendment was language 
designating land-grant colleges on Guam and the Virgin Islands, 
language, Mr. Speaker, which had been earlier ruled out of order by you 
in the House.
The conferees have agreed to most of the Senate amendment.
The statement of the managers is as follows:

The conference agreement retains the House provision with respect to 
endowment grants and the Senate conforming amendments relating to land-
grant status for such institutions. The Senate amendments are modified 
so as to provide an annual authorization in the Act equivalent with 
that provided under the Senate amendments.

Thus, it is clear, Mr. Speaker, that what the conferees did was to 
agree in conference to matter which had earlier been subject to a valid 
point of order in the House of Representatives. . . . 
Certainly, Mr. Speaker, to permit the House conferees to agree in 
conference to a Senate amendment, the language of which has or has been 
subject to a point of order, does violence to the orderly procedure in 
the House and I, therefore, make a point of order against section 506 
of the conference report on the grounds that it includes specific 
language against which a point of order by the Chair and acting under 
the authority of House Resolution [6]61, the rule governing the 
original House debate on this legislation. . . . 
THE SPEAKER:(12) Does the gentleman from Kentucky (Mr. Perkins) desire 
to be heard on the point of order?
MR. [CARL D.] PERKINS: Yes, I do, Mr. Speaker.
THE SPEAKER: The gentleman is recognized.
MR. PERKINS: Mr. Speaker, the precedent to which the distinguished 
gentleman from Louisiana referred was with reference to a peculiar 
situation. If the bill to which he had referred had been brought to the 
floor of the House under an ordinary rule, the point of order would not 
have been well taken. But it was brought to the House under a unique 
rule at that time. . . . 
The conferees adopted the Senate approach of conferring land-grant 
status on the two institutions instead of assistance in lieu of land-
grant status, but limited the amount of the endowment payment to the 
House figure of $3 million. The Senate conforming amendments were 
modified to assure that the colleges' payments for general operating 
expenses did not exceed the amounts they would have received if they 
were located within the United States.
The provision reported by the conferees, therefore, represents a 
compromise between the provisions of both bills committed to 
conference. It certainly remains well within the scope of the issues 
presented to the conferees. That rule to which the distinguished 
gentleman from Louisiana referred applied only to the consideration of 
the bill during the House debate.
-----------------------------------------------------------------------
12.     Carl Albert (Okla.).
-----------------------------------------------------------------------


[[Page 732]]

Mr. Speaker, the point of order should not be sustained.
It was a special and unique rule governing that debate only. It cannot 
be relied upon now. . . . 
THE SPEAKER: Does the gentleman from Minnesota desire to be heard?
MR. [ALBERT H.] QUIE [of Minnesota]: Yes, Mr. Speaker, I would like to 
speak in opposition to the point of order.
Mr. Speaker, adding to what the gentleman from Kentucky has said-and I 
think the gentleman from Kentucky summed up the opposition to the point 
of order in a very excellent manner-I should like to read that portion 
of the rule that applied when the point of order was made on November 
4, 1971. That part of the rule is as follows:

And further, all titles, parts, or sections of the said substitute, the 
subject matter of which is properly within the jurisdiction of any 
other standing committee of the House of Representatives, shall be 
subject to a point of order for such reason if such point of order is 
properly raised during the consideration of H.R. 7248.

We have gone by that position. We have S. 659 before us, which has been 
agreed to in the conference report. We had in the bill H.R. 7248, when 
we sent it to the other body, the $3 million for the institutions of 
higher education, but we did not make them land-grant colleges. Since 
they were already set up in that way, the House accepted that portion 
of the Senate language which is within our jurisdiction, and under the 
rules, it seems to me, we have only the question of germaneness and 
cannot raise the rule under which we operated when H.R. 7248 was 
considered in the House.
MR. WAGGONNER: Mr. Speaker, the gentleman from Minnesota says that the 
point of order should have been made during the consideration, and 
properly stated, of H.R. 7248. The point I make is exactly this: A 
point of order was made and was sustained during the consideration of 
H.R. 7248. The question is not whether or not there is an 
appropriation. The question still is whether or not this committee, 
having already been ruled against on a point of order during 
consideration of H.R. 7248, can now, by another device, bring back in 
this conference report legislation which designates these two 
institutions in Guam and the Virgin Islands as land-grant institutions. 
. . . 
THE SPEAKER: The Chair is ready to rule. The gentleman from Louisiana 
makes a point of order that the conference report violates the rules 
and precedents of the House. Since the conference report on the bill S. 
659 was filed some 2 weeks ago, the Chair has carefully scrutinized the 
agreements that were reached in conference to be sure that the managers 
have not violated the rules of the House with respect to conference 
reports. . . . 
Several of the managers on the part of the House conferred with the 
Chair during the conference deliberations and stressed to the Chair 
that at every stage of their negotiations particular attention was 
being given to the rules governing conference procedure and the 
authority of the conferees.
Whenever a possible compromise infringed or even raised a question of 
the infringement of the rules of the House, the Chair was informed that 
the man-


[[Page 733]]

agers on the part of the House resolved that matter so there was no 
conflict with the provisions of rules XX or XXVIII.
The matter to which the gentleman from Louisiana referred was contained 
in title XI of the House amendment to the Senate bill. The Chair has 
examined the parts of the conference report to which the point of order 
is directed and the relevant portions of the statement of the managers. 
The Chair is satisfied that the managers have conformed to the rules of 
the House, and therefore overrules the point of order.
Funds Authorized by One House for One Year and by the Other House for 
the Subsequent Year
Sec.    19.14 Where one House authorizes certain funds for a fiscal year 
and the other House authorizes a lesser amount for that year as well as 
additional funds for the subsequent fiscal year, and neither version 
contains an overall total amount, House conferees do not exceed the 
scope of their authority by including in their report the amount 
authorized by one House for the first year and the amount authorized by 
the other House for the subsequent year, even though the total 
authorization reflected in the report is greater than that computed in 
either version.
On June 8, 1972,(13) Mr. Joe D. Waggonner, Jr., of Louisiana, raised a 
point of order against the conference report on S. 659, the Higher 
Education Amendments of 1972.

MR. WAGGONNER: . . . I respectfully make the point of order, Mr. 
Speaker, that the conference committee has exceeded its authority. 
Section 1803(a) of the House-passed bill dealing with appropriations 
for emergency school aid authorized $1,500,000,000 for the next 2 
fiscal years. In the Senate bill, in section 704(a) the Senate proposed 
the same amount of money, $1,500,000,000 for the first 2 fiscal years 
for emergency school aid.
Now, Mr. Speaker, as we know, section 3263, volume 8, of Cannon's 
Precedents of the House of Representatives states:

Conferees may not go beyond the limits of the disagreements confided to 
them, and where the differences involve numbers, conferees are limited 
to the range between the highest figure proposed by one House and the 
lowest proposed by the other.

Each House, Mr. Speaker, dealing with this very specific subject, came 
to a very clear dollar figure for this authorization, $1,500,000,000. 
It is apparent, Mr. Speaker, that the conferees disregarded this. The 
conferees 
-----------------------------------------------------------------------
13.     118 CONG. REC. 20281, 92d Cong. 2d Sess.
-----------------------------------------------------------------------


[[Page 734]]

proposed an authorization for the first 2 years for emergency 
school aid of $2 billion, a half-billion dollars higher than proposed 
by either House of the Congress.

Carl D. Perkins, of Kentucky, Chairman of the Committee on Education 
and Labor, spoke in defense of the conference report.

MR. PERKINS:  . . .  The House amendment authorized the appropriations 
for the emergency school aid provisions of $500 million for fiscal year 
1972, and $1 billion for the fiscal year 1973.
In contrast, the Senate amendment authorized $500 million for fiscal 
year 1973, and $1 billion for the fiscal year 1974.
The conference report authorizes the House amount for the fiscal year 
1973, and the Senate amount for the fiscal year 1974.
The Precedents of the House are clear. The test is the total authorized 
amount in any single year, not the cumulative total. Therefore, the 
conference report does not violate the House Rules, and the point of 
order should be overruled.
MR. WAGGONNER: Mr. Speaker, I desire to speak further to the point of 
order. . . . 
Mr. Speaker, the Precedents of the House do not speak to the fiscal 
year allocations. The Precedents of the House and the Rules of the 
House speak to the limitations and to the range between the highest and 
the lowest figure proposed by one House or the other. I submit the 
conferees have violated the Rules of the House, because they have not 
limited their actions to the range.
They have considered in their actions fiscal year appropriations and 
not limitations of the respective bills which went to the conference.
THE SPEAKER:(14) The Chair is prepared to rule. . . . 
The Chair will point out that neither the House nor the Senate 
provisions dealing with emergency school aid set an overall limit on 
authorizations. Both dealt with specific fiscal years. The conference 
in this situation had the authority to consider the differences between 
the two Houses with respect to each of the fiscal years 1972, 1973, and 
1974, and to compromise their differences on a year-by-year basis. This 
they have done.
The Chair holds that the conferees have not exceeded their authority, 
and overrules the point of order.
Appropriation on Legislative Bill
Sec.    19.15 A conference report is subject to a point of order in the 
House if the managers on the part of the House on a legislative bill 
agree to a Senate amendment appropriating money.
On May 22, 1936,(15) Mr. James M. Mead, of New York, called up the 
conference report on H.R. 
-----------------------------------------------------------------------
14.     Carl Albert (Okla.).
15.     80 CONG. REC. 7790-92, 74th Cong. 2d Sess.
-----------------------------------------------------------------------


[[Page 735]]

9496, to protect the United States against loss in delivery through the 
mails of Veterans' Administration benefit checks. Mr. James P. 
Buchanan, of Texas, raised a point of order.

THE SPEAKER:(16) The gentleman from New York [Mr. Mead], chairman of 
the Committee on the Post Office and Post Roads, presents a conference 
report signed by the conferees on the part of the Senate and the House. 
The gentleman from Texas [Mr. Buchanan] makes the point of order that 
the conference report is out of order because the conferees on the part 
of the House in conference agreed to an amendment of the Senate 
providing an appropriation contrary to the rules of the House.
Senate amendment No. 1 contains the following language:

The Secretary of the Treasury is authorized to advance, from time to 
time, to the Postmaster General, from the appropriation contained in 
the Supplemental Appropriation Act, fiscal year 1936, approved February 
11, 1936, for "administrative expenses, adjusted-compensation payment 
act, 1936, Treasury Department, 1936 and 1937", such sums as are 
certified by the Postmaster General to be required for the expenses of 
the Post Office Department in connection with the handling of the bonds 
issued hereunder. Such bonds-

This amendment also contains the following language:

The Secretary of the Treasury shall reimburse the Postmaster General, 
from the aforesaid appropriation contained in said supplemental 
appropriation act, for such postage and registry fees as may be 
required in connection with such transmittal.

Rule XX, clause 2, of the rules of the House of Representatives,(17) 
reads as follows:

No amendment of the Senate to a general appropriation bill which would 
be in violation of the provisions of clause 2 of rule XXI, if said 
amendment had originated in the House, nor any amendment of the Senate 
providing for an appropriation upon any bill other than a general 
appropriation bill, shall be agreed to by the managers on the part of 
the House unless specific authority to agree to such amendment shall be 
first given by the House by a separate vote on every such amendment.

It is clear to the Chair that the managers on the part of the House in 
agreeing in conference to Senate amendment No. 1 violated the 
provisions of rule XX, inasmuch as the amendment provides an 
appropriation.
The Chair therefore sustains the point of order.
Sec.    19.16 A conference report on a legislative bill in which   the 
conferees had agreed to an amendment appropriating funds was ruled out 
as in violation of Rule XX clause 2.
On Oct. 4, 1962,(18) the following occurred in the House:
-----------------------------------------------------------------------
16.     Joseph W. Byrns (Tenn.).
17.     House Rules and Manual Sec. 829 (1997).
-----------------------------------------------------------------------

[[Page 736]]

MR. [THOMAS J.] MURRAY [of Tennessee]: Mr. Speaker, I call up the 
conference report on the bill (H.R. 7927) to adjust postal rates, and 
for other purposes, and ask unanimous consent that the statement of the 
managers on the part of the House be read in lieu of the report.
THE SPEAKER PRO TEMPORE:(19) Is there objection to the request of the 
gentleman from Tennessee?
MR. [H. R.] GROSS [of Iowa]: Mr. Speaker, reserving the right to 
object, and I do so in order to make a parliamentary inquiry, I desire 
to make a point of order against consideration of the conference 
report. . . . 
THE SPEAKER PRO TEMPORE: When the Clerk reports the title of the bill, 
the gentleman may be recognized.
The Clerk will report the title of the bill.
The Clerk read the title of the bill.
THE SPEAKER PRO TEMPORE: The gentleman from Iowa makes a point of 
order. The gentleman will state the point of order.
MR. GROSS: Mr. Speaker, I make the point of order against the 
conference report on the ground that it violates clause 2 of rule XX of 
the House rules.(20) . . . 
Mr. Speaker, H.R. 7927 as passed with the amendment of the Senate 
provides in section 1104, page 110, the following:

Sec. 1104. Notwithstanding any other provision of law, the benefits 
made payable under the Civil Service Retirement Act by reason of the 
enactment of this part shall be paid from the civil service retirement 
and disability fund.

The words "shall be paid from the civil service retirement and 
disability fund" constitute an appropriation within the meaning of 
clause 2 of rule XX. . . . 
THE SPEAKER PRO TEMPORE: Does the gentleman from Tennessee [Mr. Murray] 
desire to be heard on the point of order?
MR. MURRAY: I do not, Mr. Speaker.
THE SPEAKER PRO TEMPORE: The gentleman from Iowa [Mr. Gross] makes a 
point of order that the language contained on page 110, section 104, 
line 12, "shall be paid from the civil service retirement and 
disability fund" is in violation of clause 2, rule XX.
The Chair sustains the point of order.
Restriction on Managers Au-thority - Appropriations in Senate 
Amendment; Effect of Waiver in House
Sec.    19.17 A point of order against a conference report on a 
legislative bill will only lie under Rule XX clause 2, if the provision 
alleged to be an appropriation were originally contained in a Senate 
amendment and if House managers at the conference 
-----------------------------------------------------------------------
18.     108 CONG. REC. 22332, 22333, 87th Cong. 2d Sess.
19.     Carl Albert (Okla.).
20.     House Rules and Manual Sec. 829 (1997).
-----------------------------------------------------------------------


[[Page 737]]

were without specific au-thority to agree to that amendment, and will 
not lie against a provision permitted by the House to remain in its 
text. 
The conference report on the Vietnam Humanitarian Assistance Act of 
1975 (H.R. 6096) was called up in the House on May 1, 1975.(1) Ms. 
Elizabeth Holtzman, of New York, then raised a point of order against 
the report, arguing that it contained a provision making an 
appropriation on a legislative bill in violation of Rule XX clause 2.
(2) The provision complained of was in the House bill and permitted the 
use of previously appropriated funds of the Department of Defense to be 
used for evacuation programs. The House language had been protected 
from a point of order by a special order adopted prior to the 
consideration of the measure.(3) The point of order and the decision of 
Speaker Carl Albert, of Oklahoma, overruling the point of order are 
carried herein.(4) 

MR. [THOMAS E.] MORGAN [of Pennsylvania]: Mr. Speaker, I call up the 
conference report on the bill (H.R. 6096) to authorize funds for 
humanitarian assistance and evacuation programs in Vietnam and to 
clarify restrictions on the availability of funds for the use of U.S. 
Armed Forces in Indochina, and for other purposes, and ask unanimous 
consent that the statement of the managers be read in lieu of the 
report.
The Clerk read the title of the bill.
THE SPEAKER: Is there objection to the request of the gentleman from 
Pennsylvania?
POINT OF ORDER
MS. HOLTZMAN: Mr. Speaker, I would like to make a point of order 
against the conference report.
THE SPEAKER: The gentlewoman will state it.
MS. HOLTZMAN: Mr. Speaker, section 7 of the conference report in the 
last sentence refers to evacuation programs authorized by this act. It 
permits a waiver of a series of laws for the purpose of allowing those 
evacuation programs to take place.
In the House bill (H.R. 6096), section 3 dealt with evacuation programs 
referred to in section 2 of the bill and waived the same series of laws 
with respect thereto. In order for section 3 to be considered, it 
required a rule from the Rules Committee. And a rule was 
-----------------------------------------------------------------------
 1.     121 CONG. REC. 12752, 12753, 94th Cong. 1st Sess.
 2.     House Rules and Manual Sec. 829 (1997).
 3.     See H. Res. 409, which waived points of order against this 
provision, 121 CONG. REC. 11262-70, 94th Cong. 1st Sess., Apr. 22, 
1975.
 4.     121 CONG. REC. 12752, 12753, 94th Cong. 1st Sess., May 1, 1975.
-----------------------------------------------------------------------


[[Page 738]]

granted waiving points of order against section 3 of the bill. But 
section 7 of the conference report, in speaking of evacuation programs 
authorized by the entire act and not just by one section, exceeds the 
scope of section 3 of the bill and exceeds the waiver that was 
permitted under the rule. It therefore violates rule XXI, clause 5, and 
violates rule XX, clause 2, which prohibits House conferees from 
accepting a Senate amendment providing for an appropriation on a 
nonappropriation bill in excess of the rules of the House.
Mr. Speaker, last week the Committee of the Whole deliberated on an 
amendment that exceeded the limitations of the rule granted by the 
Rules Committee. That was the Eckhardt amendment, and it was ruled out 
of order by the Chairman. The language in section 7 of the conference 
report in essence has the same flaw as the Eckhardt amendment.
The last sentence of section 7 of the conference report would waive 
various provisions of law with respect to $327 million, whereas the 
last sentence of section 3 of the House bill waived these laws only 
with respect to $150 million. Section 7 of the conference report, 
therefore, is broader than section 3 of the House bill.
Had the language of section 7 been offered as an amendment to the House 
bill, it would have been subject to a point of order. Since the 
authority of the House conferees is no broader than the waiver 
originally granted to the bill by the Rules Committee, section 7 of the 
conference report should be ruled out of order.
THE SPEAKER: Does the gentleman from Pennsylvania desire to be heard on 
the point of order?
MR. MORGAN: Yes, Mr. Speaker.
The point of order has no standing. Section 3 of the House bill and 
section 7 of the conference report referred to use of funds of the 
Armed Forces of the United States for the protection and evacuation of 
certain persons from South Vietnam. The language of the conference 
report does not increase funds available for that purpose. Both the 
House bill and the conference report simply removed limitations on the 
use of funds from the DOD budget. These limitations were not applicable 
to the funds authorized in H.R. 6096. The scope of the waiver is the 
same in the conference report and the House bill.
Mr. Speaker, the changes in language are merely conforming changes. 
Section 2 of the House bill was a section which authorized the 
evacuation programs in the House bill. The conference version contains 
the evacuation programs authority in several sections plus reference to 
the entire act rather than to one specific section.
Mr. Speaker, the point of order has no standing and I hope it is 
overruled. . . . 
THE SPEAKER: The Chair is ready to rule.
The gentlewoman from New York makes the point of order that section 7 
of the conference report constitutes an appropriation on a legislative 
bill in violation of clause 5, rule XXI, to which the House conferees 
were not authorized to agree pursuant to clause 2, rule XX.


[[Page 739]]

The Chair would first point out that the provisions of clause 2, rule 
XX, preclude House conferees from agreeing to a Senate amendment 
containing an appropriation on a legislative bill, and do not restrict 
their authority to consider an appropriation which might have been 
contained in the House-passed version. In this instance, the conferees 
have recommended language which is virtually identical to section 3 of 
the House bill, and they have not agreed to a Senate amendment 
containing an appropriation. Therefore, clause 2, rule XX, is not 
applicable to the present conference report.
While clause 5, rule XXI, permits a point of order to be raised against 
an appropriation in a legislative bill "at any time" consistent with 
the orderly consideration of the bill to which applied-Cannon's VII, 
sections 2138-39-the Chair must point out that H.R. 6096 was considered 
in the House under the terms of House Resolution 409 which waived 
points of order against section 3 of the House bill as constituting an 
appropriation of available funds for a new purpose.
The Chair feels that an analogous situation may be found in Deschler's 
Procedure, chapter 25, section 23.11. There, points of order had been 
waived against portions of a general appropriation bill which were 
unauthorized by law, and the bill passed the House containing those 
provisions and was sent to conference; the conferees were permitted to 
report their agreement as to those provisions, since the waiver carried 
over to the consideration of the same provision when the conference 
report was before the House.
The gentlewoman from New York also has in effect made the point of 
order that section 7 of the conference report goes beyond the issues in 
difference between the two Houses committed to conference in violation 
of clause 3, rule XXVIII.
In the House-passed bill, section 3 contained waivers of certain 
provisions of law in order to make available funds already appropriated 
to the Department of Defense to be used for the Armed Forces in 
"evacuation programs referred to in section 2 of the act." The 
conferees have recommended that the same waivers of law shall apply to 
"evacuation programs authorized by this act."
In the opinion of the Chair, a conforming change in phraseology in a 
conference report from language contained in the House or Senate 
version to achieve consistency in the language thereof, absent proof 
that the effect of that change is to broaden the scope of the language 
beyond that contained in either version, does not necessarily render 
the conference report subject to a point of order. In this instance, it 
appears to the Chair that the only effect of the language in the 
conference report was to accomplish the same result that would have 
been reached by section 3 of the House bill, namely to remove certain 
limitations on the use of funds in the Defense budget for military 
evacuation programs under this bill.
The Chair therefore holds that the conferees have not exceeded their 
authority and overrules the point of order.
Is there objection to the request of the gentleman from Pennsylvania?


[[Pae 740]]

There was no objection.
The Clerk read the statement.
(For conference report and statement see proceedings of the House of 
April 28, 1975.)
Application of Rule XX Clause 2 Restriction to Senate Legislative Bills
Sec.    19.18 Rule XX clause 2, which precludes House managers from 
agreeing to Senate amendments providing for appropriations on a 
legislative bill, absent a grant of specific House authority to do so, 
applies only to Senate amendments sent to conference and not to 
appropriations contained in Senate legislative bills.
   Where a conference report on a Senate bill is before the House and 
contains a recommendation that the Senate concur in a House amendment 
with an amendment, the report is a recommendation for Senate action and 
at that moment in time there is no Senate amendment before the House 
for action. 
On June 30, 1976,(5) a conference report on S. 3295, the housing 
amendments of 1976, was before the House. The report proposed that the 
Senate recede from its disagreement with a House amendment in the 
nature of a substitute and concur therein with a further substitute. 
The proposed amendment would have included the original Senate 
provision which was, under the precedents of the House, an 
"appropriation" within the meaning of Rule XX clause 2.(6) When a point 
of order was made against the conference report, the following 
arguments and ruling ensued:

MR. [HENRY S.] REUSS [of Wisconsin]: Mr. Speaker, I call up the 
conference report on the Senate bill (S. 3295) to extend the 
authorization for annual contributions under the U.S. Housing Act of 
1937, to extend certain housing programs under the National Housing 
Act, and for other purposes, and ask unanimous consent that the 
statement of the managers be read in lieu of the report.
The Clerk read the title of the Senate bill.
-----------------------------------------------------------------------
 5.     122 CONG. REC. 21632-34, 94th Cong. 2d Sess.
 6.     House Rules and Manual Sec. 829 (1997).
-----------------------------------------------------------------------


[[Page 741]]

THE SPEAKER:(7) Is there objection to the request of the gentleman from 
Wisconsin?
POINT OF ORDER
MR. [GARRY E.] BROWN of Michigan: Reserving the right to object, Mr. 
Speaker, I raise a point of order against the conference report.
THE SPEAKER: The gentleman will state his point of order.
MR. BROWN of Michigan: Mr. Speaker, I make a point of order against the 
conference report on S. 3295 on the basis that the House managers 
exceeded their authority by agreeing to two matters not in the original 
House amendment to the Senate bill and which violates clause 2, rule 
XX, of the House Rules and Precedents of the House. Clause 2, rule XX, 
reads in part as follows:

Nor any amendment of the Senate providing for an appropriation upon any 
bill other than a general appropriation bill shall be agreed to by the 
managers on the part of the House unless specific authority to agree to 
such amendment shall first be given by the House by a separate vote on 
every such amendment.

The Senate-passed bill contains section 9(a)(2) and 9(b) which in 
effect provide for expenditures to be made from the various FHA 
insurance funds to honor claims made eligible for payment by the 
provisions of section 9 generally. These amendments are to section 518
(b) of the National Housing Act and relate to sections 203 and 221 
housing programs for which the authority of the Secretary of HUD to pay 
claims related to certain structural defects has expired if the claims 
were not filed by March 1976.
Both sections 9(a)(2) and 9(b) include identical language which states 
as follows:

Expenditures pursuant to this subsection shall be made from the 
insurance fund chargeable for insurance benefits on the mortgage 
covering the structure to which the expenditures relate.

The words "Expenditures pursuant to this subsection shall be made from 
the insurance fund" constitute an appropriation within the meaning of 
clause 2, rule XX. Based on precedents under clause 5, rule XXI, it is 
clear that payments out of funds such as the FHA insurance fund are 
within the meaning of the term "appropriation" and that the action 
taken by the House managers is violative of clause 2, rule XX.
In support of this point of order, I cite the ruling of the Chair on a 
point of order raised by H. R. Gross on October 1, 1962, to the 
conference report on H.R. 7927. A Senate provision agreed to in that 
report provided that-

The benefits made payable . . . by reason of enactment of this part 
shall be paid from the civil service retirement and disability fund.

Inasmuch as when the House agreed to go to conference, it did not give 
specific authority to agree to such an amendment. I therefore submit 
that it is not in order for such language to be included in the 
conference report.
The FHA insurance funds are designed to provide the reserves for 
payments on defaulted mortgages and for the operation of HUD related to 
the 
-----------------------------------------------------------------------
 7.     Carl Albert (Okla.).
-----------------------------------------------------------------------


[[Page 742]]

various insurance programs and any diversion of the use of such funds 
such as for payment for defects in the structure would violate clause 5 
of rule XXI. In further support of this point of order, and 
specifically on the point that the provisions constitute a diversion of 
funds for a separate purpose not within the intention of the 
legislation establishing the fund, I cite the ruling of the Chair on 
October 5, 1972, which holds that an amendment allowing for the use of 
highway trust fund moneys to purchase buses,

would seem to violate clause 4 of rule XXI in that it would divert or 
actually reappropriate for a new purpose funds which have been 
appropriated and allocated and are in the pipeline for purposes 
specified by the law under the original 1956 act.

I say, Mr. Speaker, I make a point of order against the conference 
report on this basis.
I would note, Mr. Speaker, that the gentleman from Oklahoma is the one 
who sustained the point of order raised by Mr. Gross in the case which 
I have referred to.
Mr. Speaker, I am inclined to anticipate a ruling against my point of 
order, but if that should be the case, Mr. Speaker, I suggest we are 
making a mockery of the rules of the House.
Since some of my comrades may not be aware of it, the rules of the 
House in clause 5, rule XXI, provide:

No bill or joint resolution carrying appropriations shall be reported 
by any committee not having jurisdiction to report appropriations, nor 
shall an amendment proposing an appropriation be in order during the 
consideration of a bill or joint resolution reported by a committee not 
having that jurisdiction. A question of order on an appropriation in 
any such bill, joint resolution, or amendments thereto may be raised at 
any time.

Mr. Speaker, that is a rule of the House. Now, since the House in its 
rules cannot have extraterritorial effect or extra body effect, in 
order to protect the House from having its rules violated by the 
Senate, we adopted clause 2 of rule XX which related to action that the 
Senate might take that would be violative of the House rules. But the 
very fact that this is not a Senate amendment on a House bill is 
insignificant if the rules of the House are going to have any real 
meaning because what we are saying is any time we want to violate the 
House rules, we can have the rule provide that after consideration of 
the bill it shall be in order for the such-and-such Senate bill to be 
taken from the Speaker's desk and everything after the enacting 
clause stricken and apply the House language, or we can, when the bill 
is under consideration before the House get consent to strike 
everything after the enacting clause of the Senate bill and substitute 
the House language. In either of those cases that for all intents and 
purposes precludes a Member of this House from saying that the rules of 
this House are violated with respect to action by the Senate.
I respectfully suggest, Mr. Speaker, at this point in time when we are 
having some questions raised about the integrity of the House rules and 
House administration, this is not the time to render a decision on a 
point of order that gives in effect further credence to 


[[Page 743]]

the fact that we do not intend to maintain integrity in this House with 
respect to the rules of the House if the procedure is carried out in a 
circuitous way.
THE SPEAKER: Does the gentleman from Ohio care to be heard on the point 
of order?
MR. [THOMAS L.] ASHLEY [of Ohio]: Very briefly, Mr. Speaker.
Mr. Speaker, clause 2 of rule XX of the rules of the House makes out of 
order any provision in a Senate amendment which provides for an 
appropriation. However, the rule does not address itself to provisions 
in Senate bills. The conferees accepted the provision in question, 
without change, from a Senate bill and not from a Senate amendment. 
Therefore, no violation of the House rules is involved even if the 
provision is considered to be an appropriation.
THE SPEAKER: The Chair is ready to rule.
The gentleman from Michigan has made a point of order against the 
conference report, referring to the language of rule XX, clause 2, 
which places certain restrictions on the managers on the part of the 
House in a conference with the Senate.
The Chair has ruled on this matter before.
On January 25, 1972, the Chair ruled in connection with a point of 
order made by the gentleman from Iowa (Mr. Gross) against the 
conference report on a foreign military assistance authorization bill 
(S. 2819) on the ground that the House conferees had exceeded their 
authority by including in the conference report an appropriation 
entirely in conflict with clause 2, rule XX. That rule provides, in 
relevant part, that "no amendment of the Senate"-that is the important 
language-no amendment of the Senate providing for an appropriation upon 
any bill other than a general appropriation bill, shall be agreed to by 
the managers on the part of the House.
The Chair would point out that it was a Senate bill which was sent to 
conference with a House amendment thereto. The rule is restricted in 
its application to Senate amendments and, thus, is not applicable in 
the present situation.
The Chair, therefore, overrules the point of order.
MR. BROWN of Michigan: Mr. Speaker, in view of the ruling of the Chair, 
I just would like to point out that in the conference report the 
paragraph appears:

That the Senate recede from its disagreement to the amendment of the 
House to the text of the bill and agree to the same with an amendment.

In other words, with a Senate amendment.
Now, I respectfully suggest that for all intents and purposes, by using 
the circuitous route of taking up the Senate bill and including the 
House language, we nullify totally the basic directive of the House 
rules that this House shall not concur in any appropriation in a 
legislation bill not a general appropriations act, and for the Chair to 
rule that we will accept a circuitous violation of the House rules, 
that we will not accept a direct violation, I think is not in the best 
interests of the House.
THE SPEAKER: The Chair just thinks there are other rules that govern 


[[Page 744]]

and that can protect the House in situations of this type.(8) The 
gentleman has referred to the language of the conference agreement; and 
the Chair would point out that the managers have proposed that the 
Senate recede and concur in the House amendment with an amendment. 
There is no Senate amendment before the House at this time.
Is there objection to the request of the gentleman from Wisconsin that 
the statement be read in lieu of the report?
There was no objection.

Appropriation Language in Legislative Bill, Restriction on Managers 
Authority
Sec.    19.19 A provision in a legislative bill authorizing the use, 
without a subsequent appropriation, of funds previously appropriated by 
law for a particular purpose, for a new purpose, constitutes an 
appropriation in a legislative bill (in contravention of Rule XXI 
clause 5(a)) and violates the restriction placed on the managers by 
Rule XX clause 2. A conference report may be ruled out on a point of 
order if the managers exceed their authority.
The point of order against the conference report on H.R. 5612, the 
Small Business Assistance Act, together with the Chair's response, as 
recorded in the proceedings of Oct. 1, 1980,(9) are set out below:

THE SPEAKER PRO TEMPORE:(10) The gentleman from California is now 
recognized on his point of order.
MR. [GEORGE E.] DANIELSON [of California]: Mr. Speaker, I rise and make 
a point of order against the conference report on the bill, H.R. 5612, 
on the grounds that the conferees have agreed to a provision in the 
Senate amendment which constitutes an appropriation on a legislative 
bill, in violation of 
-----------------------------------------------------------------------
 8.     The procedural safeguards mentioned by the Speaker against the 
inclusion of appropriations in Senate bills include: (1) possible 
points of order under Sec. 401 of the Congressional Budget Act-if the 
Senate provision can be construed as new spending authority not subject 
to amounts specified in advance in appropriations acts where budget 
authority has not been provided in advance (in this case, the money had 
already been appropriated and was in a revolving fund-so Sec. 401 was 
not applicable); and (2) returning Senate bills which contain 
appropriations to the Senate by asserting the constitutional 
prerogative of the House to originate "revenue" measures-construed 
under the precedents to include at least "general appropriation bills".
 9.     126 CONG. REC. 28638, 96th Cong. 2d Sess.
10.     William H. Natcher (Ky.).
-----------------------------------------------------------------------


[[Page 745]]

clause 2 of rule XX of the rules of the House of Representatives. The 
conferees have included, as an amendment to the bill, a title II, which 
provides for the award of attorneys' fees and other expenses to the 
prevailing party other than the United States, in certain actions or 
administrative proceedings in which the judgment or adjudication has 
been adverse to the United States, unless the court or adjudicative 
officer of the agency finds that the position of the United States was 
substantially justified or that special circumstances make the award 
unjust.
I will specify the place in the report if anyone so desires.
THE SPEAKER PRO TEMPORE: Does the gentleman from Iowa desire to be 
heard on the point of order?
MR. [NEAL] SMITH of Iowa: Mr. Speaker, I think nothing I could say 
would add or subtract anything. The Speaker has all the information.
THE SPEAKER PRO TEMPORE: The Chair is ready to rule.
The gentleman from California (Mr. Danielson) makes the point of order 
that the conference report on the bill H.R. 5612 contains provisions of 
the Senate amendment constituting appropriations on a legislative bill 
in violation of clause 2, rule XX, which prohibits House conferees from 
agreeing to such provisions without prior authority of the House.
The provisions in title II question authorize appropriations to pay 
court costs and fees levied against the United States, but also provide 
that if payment is not made out of such authorized and appropriated 
funds, payment will be made in the same manner as the payment of final 
judgments under sections 2414 and 2517 of title 28, United States Code. 
Judgments under those sections of existing law are paid directly from 
the Treasury pursuant to section 724a of title 31 of the United States 
Code, which states that there are appropriated out of the Treasury such 
sums as may be necessary for the payment of judgments, awards, and 
settlements under sections 2414 and 2517 of title 28. Thus the 
provision in the Senate amendment contained in the conference report 
extends the purposes to which an existing permanent appropriation may 
be put and allows the withdrawal directly from the Treasury, without 
approval in advance by appropriation acts, of funds to carry out the 
provisions of title II of the Senate amendment.
For the reasons stated, the Chair sustains the point of order against 
the conference report.
Applicability of Rule XXI Clause 5(a) to a Motion To Concur in a Senate 
Amendment to a House Legislative Bill
Sec.    19.20 In a case of first impression, the Speaker entertained a 
point of order under Rule XXI clause 5(a), (which prohibits the 
inclusion in a legislative bill or an amendment thereto of an item        
of appropriation) where an amendment in disagreement was pending and a 
motion was offered to recede and 


[[Page 746]]

concur in a Senate amendment to a House legislative bill. 
The conference report on H.R. 5612, the Small Business Assistance Act, 
1980, was ruled out on a point of order since the managers had agreed 
to a Senate amendment carrying an appropriation, a provision to which 
the managers on the part of the House could not agree under the 
restrictions imposed on their authority under Rule XX clause 2.(11) 
A motion was then made by the manager of the bill, Mr. Neal Smith, of 
Iowa, to recede from disagreement and concur in the Senate amendment to 
the House bill with a further amendment which was essentially the text 
of the conference agreement but modified by a new section making 
expenditures in order only to the extent and in such amounts as are 
provided in advance in appropriation acts. 
Two points of order were made against this motion, one under Rule XXI 
clause 5(a)(12) on the ground that the motion still contemplated a 
reappropriation of funds; the other under Rule XXVIII clause 5(13) on 
the ground that the language in the motion would not have been germane 
to the original House bill. 
The Chair entertained the Rule XXI point of order first, since, if 
sustained, it would invalidate the entire motion. That point of order 
was overruled since the Chair discerned no appropriation in the 
language of the motion. The germaneness point of order was then 
pressed, and the Chair sustained that argument, thus setting the stage 
for a motion to reject the portion of the motion which would not have 
been considered germane. 
The proceedings of Oct. 1, 1980,(14) involving the latter two points of 
order are carried here.  The proceedings involving the conference 
report itself are covered in Sec. 25.13, infra. 
MOTION OFFERED BY MR. SMITH OF IOWA
MR. SMITH of Iowa: Mr. Speaker, I offer a motion.
The Clerk read as follows:

Mr. Smith of Iowa moves that the House recede from its disagreement to 
the amendment of the Senate to the bill (H.R. 5612) to amend section 8
(a) of the Small Business Act and 
-----------------------------------------------------------------------
11.     See House Rules and Manual Sec. 829 (1997).
12.     Id. at Sec. 846a.
13.     Id. at Sec. 913c.
14.     126 CONG. REC. 28638-42, 96th Cong. 2d Sess.
-----------------------------------------------------------------------


[[Page 747]]

concur therein with the following amendment:
In lieu of the matter proposed to be inserted by the Senate, insert the 
following:
"PART A. SMALL BUSINESS ADMINISTRATION MINORITY BUSINESS DEVELOPMENT 
ROGRAM AMENDMENTS  . . ."
TITLE II-EQUAL ACCESS TO JUSTICE ACT
SEC. 201. This title may be cited as the "Equal Access to Justice Act". 
. . . 
AWARD OF FEES AND OTHER EXPENSES IN CERTAIN AGENCY ACTIONS
SEC. 203. (a)(1) Subchapter I of chapter 5 of title 5, United States 
Code, is amended by adding at the end thereof the following new 
section:
"Sec. 504. Costs and fees of parties . . ."
"(d)(1) Fees and other expenses awarded under this section may be paid 
by any agency over which the party prevails from any funds made 
available to the agency, by appropriation or otherwise, for such 
purpose. If not paid by any agency, the fees and other expenses shall 
be paid in the same manner as the payment of final judgments is made 
pursuant to section 2414 of title 28, United States Code. . . ."
LIMITATION
SEC. 207. The payment of judgments, fees and other expenses in the same 
manner as the payment of final judgments as provided in this Act is 
effective only to the extent and in such amounts as are provided in 
advance in appropriations Acts. . . .

MR. SMITH of Iowa: Mr. Speaker, this amendment retains all of the 
language agreed to by the conferees, but it specifically provides that 
the provisions for the payment of judgments, attorney's fees and other 
expenses are effective only to the extent and in the amounts approved 
in advance in appropriations acts. This modifies those provisions which 
have been ruled to be an appropriation on an authorization bill. It 
makes no other changes in the language. It retains verbatim all other 
provisions which are so essential to small business. If the House 
adopts the amendment, this bill would be sent back to the Senate with 
the House amendment and, hopefully, it would pass.
POINT OF ORDER
MR. [GEORGE E.] DANIELSON [of California]: Mr. Speaker, I will again 
raise a point of order of an appropriation in a legislative bill, for 
the reason that this amendment, if adopted, would require an 
affirmative action at any time  against, for example, the Comptroller 
General before he could issue a voucher authorizing the payment of 
funds from the Treasury as to whether or not the award of attorneys' 
fees and costs pursuant to this proposed bill was something heretofore 
authorized and for which funds had theretofore been appropriated.
This would be an added burden and an added activity on the part of the 
Comptroller General and would constitute, I respectfully submit, an 
appropriation on a legislative bill.
For that reason, I again raise the point of order. . . . 
MR. SMITH of Iowa: Mr. Speaker, I think it is very clear the way it is 
worded that it is just an authorization for an appropriation. There has to be a 


[[Page 748]]

specific appropriation, the same procedure we use in almost all laws 
around here.
MR. [JOSEPH M.] MCDADE [of Pennsylvania]: Mr. Speaker, may I be heard 
on the point of order?
THE SPEAKER PRO TEMPORE:(15) The Chair will be glad to hear the 
gentleman.
MR. MCDADE: Mr. Speaker, the language says only to the extent and in 
such amounts as are provided in advance in appropriations acts.
My friend and I have been on the Appropriations Committee together, I 
guess, for about 36 years. This is boiler-plate language. The point of 
order ought not to lie.
FURTHER POINT OF ORDER
MR. [DAN] ROSTENKOWSKI [of Illinois]: Mr. Speaker, I further make a 
point of order.
THE SPEAKER PRO TEMPORE: The Chair will be glad to hear the gentleman.
MR. ROSTENKOWSKI: Mr. Speaker, the amendment, as I understand it, 
further allows for attorneys' fees to be paid in excess of what was 
prescribed for in the legislation out of the Small Business Committee. 
The general application of the bill is far in excess. I still think 
that the germaneness of the amendment of the gentleman is in question.
MR. SMITH of Iowa: Mr. Speaker, I have nothing further.
THE SPEAKER PRO TEMPORE: The Chair will dispose of the appropriation 
point of order first.
Then the Chair will take up the matter of germaneness.
On page 22 of the motion the following limitation under section 207 is 
included:

The payment of judgments, fees and other expenses in the same manner as 
the payment of final judgments as provided in this act is effective 
only to the extent and in such amounts as are provided in advance in 
appropriation acts.

Therefore, the point of order is overruled under clause 5, rule XXI.
The Chair would like to inquire of the gentleman from Illinois (Mr. 
Rostenkowski) if he desires to make a point of order as to the 
germaneness of a portion of the motion offered by the gentleman from 
Iowa.
MR. ROSTENKOWSKI: In my opinion, Mr. Speaker, the attorney's fees is 
not germane to the narrow small business bill. . . . 
THE SPEAKER PRO TEMPORE: The Chair is now ready to rule. While the 
motion is germane to the Senate amendment which contains the provision 
concerning attorneys' fees, the Chair would rule that the language is 
not germane to the original House bill which narrowly amended the Small 
Business Act in an unrelated way. That is under clause 5 of rule 
XXVIII, the Chair would sustain a point of order as to title II of the 
motion.
Does the gentleman from Illinois have a motion to reject that portion?
MOTION OFFERED BY MR. ROSTENKOWSKI
MR. ROSTENKOWSKI: Mr. Speaker, I offer a motion.
The Clerk read as follows:
-----------------------------------------------------------------------
15.     William H. Natcher (Ky.).
-----------------------------------------------------------------------


[[Page 749]]

Mr. Rostenkowski moves to strike title II of the motion offered by the 
gentleman from Iowa, Mr. Smith.

THE SPEAKER PRO TEMPORE: The    gentleman from Illinois (Mr. 
Rostenkowski) will be recognized for 20 minutes, and the gentleman from 
Iowa (Mr. Smith) will be recognized for 20 minutes.
The Chair now recognizes the gentleman from Illinois (Mr. 
Rostenkowski).
Conference Compromise Eliminating Appropriation on Legislative Bill
Sec.    19.21 Although Rule XX clause 2 prohibits House conferees from 
agreeing to a Senate amendment containing an appropriation to a 
legislative bill absent specific authority from the House, the 
conferees may include in their report a modification of such an 
amendment which eliminates the appropriation.
On June 8, 1972,(16) the House was considering the conference report on 
S. 659, the Higher Education Amendments of 1972. Mr. Joe D. Waggonner, 
Jr., of Louisiana, raised a point of order against the conference 
report. Among the alleged defects of the conference report was the 
agreement of the House managers to a Senate provision which conferred 
land-grant status on colleges on Guam and the Virgin Islands and 
changed the form of an authorization for their endowments and operating 
expenses to include a direct appropriation. Mr. Waggonner quoted 
from the statement of the managers:

The conference agreement retains the House provision with respect to 
endowment grants and the Senate conforming amendments relating to land- 
grant status for such institutions. The Senate amendments are modified 
so as to provide an annual authorization in the Act equivalent with 
that provided under the Senate amendments.

Mr. Waggonner continued,

. . . [T]he Managers on the part of the House may not agree in 
conference to amendments in violation of clause 2 of rule XXI or to 
Senate amendments to legislative bills carrying appropriations unless 
authorized by a vote of the House.

Carl D. Perkins, of Kentucky, Chairman of the Committee on Education 
and Labor, responded to the point of order.

MR. PERKINS:  . . .  The House amendment authorized a lump sum 
appropriation of $3 million for each institution, plus an annual 
appropriation of $450,000 for each for general 
-----------------------------------------------------------------------
16.     118 CONG. REC. 20280, 20281, 92d Cong. 2d Sess.
-----------------------------------------------------------------------

[[Page 750]]

operating expenses in lieu of land-grant status for the institution.
The Senate amendment provided for endowments and payment of operating 
expenses, but in slightly different form. Land-grant status was 
conferred on the two institutions, with a cash endowment in lieu of the 
receipts from the sale of land scrip, plus conforming amendments to 
other related legislation which is related to land-grant status.
The issue before the conferees, therefore, was not whether aid should 
be extended to the College of the Virgin Islands and the University of 
Guam, but only the form such aid should take.
The conferees adopted the Senate approach of conferring land-grant 
status on the two institutions instead of assistance in lieu of land-
grant status, but limited the amount of the endowment payment to the 
House figure of $3 million. The Senate conforming amendments were 
modified to assure that the colleges' payments for general operating 
expenses did not exceed the amounts they would have received if they 
were located within the United States.
The provision reported by the conferees, therefore, represents a 
compromise between the provisions of both bills committed to 
conference. It certainly remains well within the scope of the issues 
presented to the conferees.

Speaker Carl Albert, of Oklahoma, then stated:

The Chair is ready to rule. The gentleman from Louisiana makes a point 
of order that the conference report violates the rules and precedents 
of the House. Since the conference report on the bill S. 659 was filed 
some 2 weeks ago, the Chair has carefully scrutinized the agreements 
that were reached in conference to be sure that the managers have not 
violated the rules of the House with respect to conference reports. 
Obviously where, as here, the House amendment in the nature of a 
substitute and a Senate substitute therefor are both extensive and 
comprehensive legislative proposals, the task of writing a conference 
compromise is a difficult and painstaking task.
Several of the managers on the part of the House conferred with the 
Chair during the conference deliberations and stressed to the Chair 
that at every stage of their negotiations particular attention was 
being given to the rules governing conference procedure and the 
authority of the conferees.
Whenever a possible compromise infringed or even raised a question of 
the infringement of the rules of the House, the Chair was informed that 
the managers on the part of the House resolved that matter so there was 
no conflict with the provisions of rules XX or XXVIII.
. . . The Chair has examined the parts of the conference report to 
which the point of order is directed and the relevant portions of the 
statement of the managers. The Chair is satisfied that the managers 
have conformed to the rules of the House, and therefore overrules the 
point of order.
Unauthorized Designated Allocations Within Range of Disagreement on 
Lump-sum Appropriation


[[Page 751]]

Sec.    19.22 When language in an appropriation bill specifically limits 
use of a lump-sum appropriation "to projects authorized by law," and 
the conferees agree to a sum between the differences of the two Houses, 
a conference report is not subject to a point of order upon the ground 
that the lump-sum appropriation embraces funds which would exceed the 
amount authorized by law if apportioned to two of the projects in 
accordance with the Senate report.
On Aug. 13, 1957,(17) Mr. Clarence Cannon, of Missouri, called up the 
conference report on H.R. 8090, public works appropriations, fiscal 
1958.

MR. [JOHN] TABER [of New York]: Mr. Speaker, I make a point of order 
against the conference report on the ground that it carries 
appropriations not authorized by law. In support of the point of order, 
Mr. Speaker, I call attention to the conference report and the 
statement in connection therewith. On page 4, the Success Reservoir is 
carried at $5 million and the Terminus Reservoir at $2,500,000. The two 
together are more or less in the same project. They had only $500,000 
available at the time the bill was in the House, and there has been no 
authorization bill passed since that time. At the time the bill was in 
the House, the committee said:

Success and Terminus Reservoirs, Calif.: The current basin monetary 
authorization would be exceeded by $6,882,000 if the budget estimates 
of $7,500,000 were allowed for these two projects. The committee has 
allowed $618,000, the balance remaining in the present monetary 
authorization. Of this amount $518,000 is for Success Reservoir and 
$100,000 is for Terminus Reservoir. The Corps of Engineers is directed 
to proceed with these two projects up to the limit of the budget 
estimates, using available unobligated funds, should legislation be 
enacted increasing the monetary limitation to an amount equal to or in 
excess of the total of the budget estimates. . . .

THE SPEAKER:(18) Does the gentleman from Missouri [Mr. Cannon] desire 
to be heard on the point of order?
MR. CANNON: . . . Senate amendment No. 4, on page 5, to which the 
gentleman refers, is not an appropriation but precludes use of funds 
for items in the appropriation unless or until authorized.
Accordingly, the point of order that it is not authorized does not lie. 
. . . 
THE SPEAKER: The gentleman from New York [Mr. Taber] makes a point of 
order on two items set forth in the statement of the managers on the 
part of the House. It appears to the Chair that the report of the 
conference committee stays within the amount of the two Houses. The 
language on page 3 
-----------------------------------------------------------------------
17.     103 CONG. REC. 14571-76, 85th Cong. 1st Sess.
18.     Sam Rayburn (Tex.).
-----------------------------------------------------------------------


[[Page 752]]

specifies that the appropriation can only be used for projects 
authorized by law. Therefore, the Chair must overrule the point of 
order. . . . 
The gentleman from Missouri is recognized on the conference report.

Parliamentarian's Note: At the time H.R. 8090 was being considered by 
the House Subcommittee on Public Works Appropriations, it was conceded 
that only $618,000 remained of the funds previously authorized for the 
Success and Terminus Reservoirs. It was contemplated at that time that 
the omnibus rivers and harbors and flood control authorization bill, S. 
497, would subsequently authorize $6,882,000, the difference between 
the $7,500,000 estimated for these reservoir projects by the Bureau of 
the Budget and requested by the Army Corps of Engineers, and the 
$618,000 of unspent authorizations then available to be appropriated.
(19) The House report on H.R. 8090 allocated this $618,000 ($500,000 to 
Success and $118,000 to Terminus)(20) as part of a lump-sum 
appropriation of $442,186,800 for general construction for rivers and 
harbors and flood control.(1) The Senate report on H.R. 8090 alluded to 
S. 497,(2) which had passed the Senate and was then pending before the 
House Committee on Public Works. In reliance  on these anticipated 
increased authorizations the Senate report allocated the full 
$7,500,000 for these two projects,(3) and appropriated a lump sum for 
general construction for rivers and har-bors and flood control of 
$470,040,500.(4) But S. 497 was not law at the time the conferees met 
on H.R. 8090. (Nor was it ever enacted into law. After the House 
adopted it during the second session of the 85th Congress, the 
President vetoed it.)(5) 
The conferees agreed to a lump sum, $449,398,500, between the House and 
Senate figures. Since the bill limited the use of the lump sum to 
projects authorized by law, funds in excess of that authorized, which 
were allocated to Success and Terminus Reservoirs in the 
-----------------------------------------------------------------------
19.     See hearings on H.R. 8090 before House Subcommittee on Public 
Works of the Committee on Appropriations, 85th Cong. 1st Sess., at pp. 
418, 419 (1957).
20.     H. Rept. No. 85-552, p. 4, 85th Cong. 1st Sess. (1957).
 1.     Id. at pp. 3, 8.
 2.     S. Rept. No. 85-609, 85th Cong. 1st Sess., pp. 19, 20 (1957).
 3.     Id. at p. 9.
 4.     Id. at pp. 6, 18.
 5.     See 104 CONG. REC. 6389, 85th Cong. 2d Sess., Apr. 15, 1958.
-----------------------------------------------------------------------


[[Page 753]]

Senate report, could not be used for that purpose.
Senate Practice; Constitutional Point of Order
Sec.    19.23 Senate practice admits a point of order that a portion of a 
conference report is out of order under the Constitution, but such a 
point is not decided by the Presiding Officer but is submitted to the 
Senate: "Is the point of order well taken?"     
During consideration in the Senate of the conference report on H.R. 
2264, the Omnibus Budget Reconciliation Act, 1994, a constitutional 
point of order was raised by Senator John S. McCain III, of Arizona. 
The disposition of the point of order is carried here.(6) 

MR. MCCAIN: Madam President, I make a constitutional point of order 
that the retroactive tax increases in the conference report which 
predate April 8, 1993, are in violation of the due process clause of 
the fifth amendment of the Constitution.
THE PRESIDING OFFICER:(7) Under the precedents and practices of the 
Senate, the Chair has no power or authority to pass on such a point of 
order. The Chair, therefore, under the precedents of the Senate, 
submits the question to the Senate, Is the point of order well taken?
Debate on this question is limited to 1 hour equally divided and 
controlled in the usual form pursuant to section 305(c)(2) of the 
Congressional Budget Act.
The Senator from Arizona controls 30 minutes, the Senator from 
Tennessee controls 30 minutes.
Who yields time? . . . 
Mr. McCain addressed the Chair.
THE VICE PRESIDENT:(8) The question before the Senate is, Is the point 
of order well taken? The yeas and nays have been ordered. The clerk 
will call the roll.
The legislative clerk called the roll.
The yeas and nays resulted-yeas 44, nays 56. . . . 
THE VICE PRESIDENT: On this vote, the yeas are 44, the nays are 56. The 
point of order is not sustained.
MR. [DANIEL P.] MOYNIHAN [of New York]: Mr. President, I move to 
reconsider the vote, and I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Senate Decision Interpreting "Byrd Rule"
Sec.    19.24 In the Senate, under the so-called "Byrd rule" (section 13 
of the Budget Act), a provision which produces no measurable 
-----------------------------------------------------------------------
 6.     See 139 CONG. REC. 19750, 19759, 19760, 103d Cong. 1st Sess., 
Aug. 6, 1993.
 7.     Patty Murray (Wash.).
 8.     Albert A. Gore, Jr. (Tenn.).
-----------------------------------------------------------------------


[[Page 754]]

changes in outlays or revenues is not necessarily extraneous.
The provision in the conference report on H.R. 2264, the Omnibus Budget 
Reconciliation Act of 1994, which was targeted by a point of order by 
Senator John C. Danforth, of Missouri, related to a program to provide 
pediatric  immunizations under the Medicaid program. The point of 
order, the Chair's response, and the vote taken on the motion to 
sustain the Chair's ruling are carried here.(9) 

MR. DANFORTH: Mr. President, I am concerned about the state of the Byrd 
rule, which is a rule that I think is extremely important in the 
Senate, and concerned that budgetary effects which are incapable of 
estimation have been used to justify what I would think to be 
extraneous provisions in this bill, I would like now to make two 
inquiries of the Chair.
First, is a provision of the budget reconciliation bill extraneous 
under section 313(b)(1)(A) of the Budget Act, the Byrd rule, if it 
produces no changes in outlays or revenues that can be estimated?
THE PRESIDING OFFICER:(10) Such a provision would not necessarily be 
out of order.
MR. DANFORTH: Would not necessarily be out of order.
The second question is: If the impact on outlays or revenues cannot be 
estimated, are they merely incidental to a nonbudgetary component under 
section 313(b)(1)(D) of the Byrd rule?
THE PRESIDING OFFICER: Once again, that would not necessarily be the 
case.
MR. DANFORTH: Mr. President, I now wish to raise a point of order, and 
do raise a point of order under sections 313(b)(1)(A) and 313(b)(1)(D) 
of the Budget Act, known as the Byrd rule; that title XIX, section 1928
(d)(4)(B) in the conference agreement, section 13631(b) is extraneous 
to the reconciliation bill because it produces no change in the outlays 
or revenues or produces changes in outlays or revenues which are merely 
incidental to the nonbudgetary components of the provision.
THE PRESIDING OFFICER: The point of order is not well taken.
MR. DANFORTH: Mr. President, I appeal the ruling of the Chair.
THE PRESIDING OFFICER: Under the previous order, there is a half-hour 
equally divided on the appeal.
MR. DANFORTH: Mr. President, I ask for the yeas and nays.
THE PRESIDING OFFICER: Is this a sufficient second?
There is a sufficient second.
The yeas and nays were ordered. 
MR. [JAMES R.] SASSER [of Tennessee]: Mr. President, I yield myself 
such time as I may consume, and I will be very brief.
Mr. President, first, with regard to the Byrd rule, we worked very hard 
and very faithfully over a period of well over a week in going over 
this bill to try 
-----------------------------------------------------------------------
 9.     139  CONG. REC. 19763, 19764, 19767, 103d Cong. 1st Sess., Aug. 
6, 1993.
10.     Herbert H. Kohl (Wis.).
-----------------------------------------------------------------------


[[Page 755]]

to clarify and remove items that might be subject to the Byrd rule.
As the distinguished ranking member indicated, I think over 150 items 
were removed from the reconciliation instrument here, because it was 
felt that they would be subject to the Byrd rule. And we furnished our 
friends on the other side of the aisle, the distinguished staff 
colleagues on the Senate Budget Committee, copies of the draft language 
so that we would each know where we were, and there would be no 
surprises as we worked together to try to expunge the Byrd rule 
problems from the reconciliation conference report. . . . 
THE PRESIDING OFFICER: All time has been yielded back.
The question is, is the appeal of the Senator from Missouri well taken? 
An affirmative vote of three-fifths of the Senators duly chosen and 
sworn is required for the appeal to be well taken.
On this question, the yeas and nays have been ordered, and the clerk 
will call the roll.
The bill clerk called the roll.
The yeas and nays resulted-yeas 43, nays 57. . . . 
Senate Practice; Point of Order Under "Byrd Rule"
Sec.    19.25 Although a point of order under section 313 of the Budget 
Act is not debatable in the Senate, under section 904(d) of the Budget 
Act an appeal of a ruling thereon is debatable for one hour, equally 
divided between and controlled by the moving party and the bill 
manager. 
On Aug. 6, 1993, during the debate on the conference report on H.R. 
2264, the Omnibus Budget Reconciliation Act of 1994, a point of order 
was directed to a provision imposing domestic content requirements on 
U.S. cigarette manufacturers. The Presiding Of-ficer held the provision 
not to be "extraneous" and therefore not subject to such point of order 
under the Byrd rule, as expressed in section 313 of the Budget Act.
While under section 313 a point of order is not subject to debate, an 
appeal from the decision of the Presiding Officer under section 904 is 
subject to one hour of debate.
To overturn the Chair's decision, a vote of three-fifths of the Members 
duly chosen and sworn is required.
A relevant portion of the proceedings is carried herein.(11) 

MR. [HANK] BROWN [of Colorado]: . . . Mr. President, I raise a point of 
order that section 1106(a) is extraneous and violates section 313(b)(1)
(D) of the Congressional Budget Act of 1974.
-----------------------------------------------------------------------
11.     139 CONG. REC. 19780-83, 103d Cong. 1st Sess., Aug. 6, 1993.
-----------------------------------------------------------------------


[[Page 756]]

It violates it because it produces changes in the revenues that are 
clearly only incidental to the nonbudgetary components of the 
provision. The reality is this imposes the first domestic content 
provision that applies to exports. It is a tiny fraction of revenue-
actually not even reducing the deficit-but only one-fourth of 1 percent 
of the tobacco--
THE PRESIDING OFFICER:(12) If the Senator will withhold, the Chair 
wishes to advise the Senator the point of order is not debatable. So if 
the Senator is setting a predicate for offering a point of order, that 
is acceptable. If he is debating a point of order already offered, it 
is not.
MR. BROWN: I do raise that point of order and ask the Chair to rule on 
section 1106(a).
THE PRESIDING OFFICER: The Chair will not sustain the point of order. 
The point of order is not sustainable.
MR. BROWN: Mr. President, I appeal the ruling of the Chair and ask for 
the yeas and nays.
THE PRESIDING OFFICER: Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
THE PRESIDING OFFICER: The vote will be taken by the yeas and nays.
MR. [WENDELL H.] FORD [of Kentucky]: Mr. President, as I understand it 
we have 30 minutes? Was that the gentleman's agreement? Or what is the 
time agreement?
THE PRESIDING OFFICER: The Chair advises the Senate the time available 
for debate will be 1 hour unless changed by unanimous consent. . . . 
MR. [PAUL S.] SARBANES [of Maryland]: Mr. President, we ask unanimous 
consent the time on the appeal be limited to 10 minutes equally 
divided, 5 to a side.
THE PRESIDING OFFICER: Hearing no objection, that will be the order. . 
. . 
MR. FORD: Mr. President, the Byrd rule under which my colleague from 
Colorado has made his appeal is very important. The individual's name 
who is carried on this Byrd rule does it because it is important to 
this institution.
Mr. President, let me explain to my colleagues, while I believe the 
Parliamentarian after careful review-and I underscore careful-has 
advised the Chair that this provision does not violate that Byrd rule.
This provision raises some $29 million over a 5-year period for deficit 
reduction.
The CBO estimate for this provision analyzed each part of the provision 
and concluded that each had a budgetary impact on the $29 million in 
savings achieved by this provision. That is the Byrd rule question, not 
the underlying argument. . . . 
I urge my colleagues to uphold the ruling of the Chair. . . . 
THE PRESIDING OFFICER:(13) All time has expired. The question is, Is 
the appeal of the Senator from Colorado well taken? An affirmative vote 
of three-fifths of the Senators duly chosen and sworn is required to 
overturn the decision of the Chair.
-----------------------------------------------------------------------
12.     Joseph I. Lieberman (Conn.).
13.     Charles S. Robb (Va.).
-----------------------------------------------------------------------


[[Page 757]]

MR. BROWN: Mr. President, I ask for the yeas and nays.
THE PRESIDING OFFICER: Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
THE PRESIDING OFFICER: The clerk will call the roll. . . . 
If there are no other Senators desiring to vote, on this vote the yeas 
are 43, the nays are 57. Three-fifths of the Senators duly chosen and 
sworn, not having voted in the affirmative, the appeal is rejected.
MR. [GEORGE J.] MITCHELL [of Maine]: Mr. President, I move to 
reconsider the vote by which the appeal was rejected.
MR. [PATRICK J.] LEAHY [of Vermont]: I move to lay that motion on the 
table.
The motion to lay on the table was agreed to.