[Deschler's Precedents, Volume 8, Chapter 26]
[Chapter 26. Unauthorized Appropriations; Legislation on Appropriation Bills]
[C. Provisions as "Changing Existing Law," Generally]
[Â§ 36. Changing Prescribed Methods of Allocation or Distribution of Funds; Mandating Expenditures]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 5834-5862]
 
                               CHAPTER 26
 
    Unauthorized Appropriations; Legislation on Appropriation Bills
 
        C. PROVISIONS AS ``CHANGING EXISTING LAW,'' GENERALLY
 
Sec. 36. Changing Prescribed Methods of Allocation or Distribution of 
    Funds; Mandating Expenditures

    Generally, if a provision in an appropriation bill would require an 
allocation or distribution of appropriated funds that is contrary to an 
express legislative formula for apportionment of the funds, it is not 
permitted. Thus, it is held that an amendment to a general 
appropriation bill which mandates a distribution of funds therein in 
contravention of an allocation formula in existing law and which 
interferes with an executive official's discretionary authority under 
that law is in violation of Rule XXI clause 2. (See Sec. 36.16, infra.) 
On the other hand, amendments or provisions in bills have been 
permitted which have been drafted simply as negative restrictions or 
limitations on the use of funds. Such limitations may affect the 
allocation of funds as contemplated in existing law, but do not 
explicitly change a statutory formula for distribution.(18) 
Exam

[[Page 5835]]

ples may be found in those sections of this chapter relating to 
``permissible limitations on the use of funds.''
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18. In one instance, where existing law authorized an appropriation of 
        $600,000,000 for the fiscal year and provided that of the 
        amount actually appropriated, allotments to the various states 
        should be computed by a formula, the factors of which were to 
        be state population, per capita income therein, the amount 
        appropriated and the amount authorized, a provision in the 
        appropriation bill H.R. 13111 (for the Departments of Labor and 
        Health, Education, and Welfare) specifying that none of the 
        funds used therein should be available for making allotments on 
        a basis in excess of $500,000,000, thus changing one of the 
        legislatively established figures in the authorized formula, 
        was nevertheless held in order as a limitation, the argument 
        not having been explicit on this crucial point. 115 Cong. Rec. 
        21471, 91st Cong. 1st Sess., July 30, 1969. (For an example of 
        a similar limitation based on a prior year's appropriation, see 
        118 Cong. Rec. 21104, 92d Cong. 2d Sess., June 15, 1972 [H.R. 
        15417].) But the ruling today would arguably be different, on 
        the basis that the provisions did in fact change one part of a 
        legislatively established formula. See also Sec. 77.2, infra, 
        in which an amendment to a paragraph of an appropriation bill 
        providing that no part of the funds therein contained shall be 
        distributed to states on a per capita income basis was held to 
        be a proper limitation restricting the use of funds and in 
        order.
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    Theoretically, if an authorizing statute provided that a particular 
percentage of total funds would be allocated to each of several 
specified areas, a purported limitation which eliminated funds for one 
of those areas would constitute legislation in that it changed a 
prescribed formula. This result, however, does not clearly emerge from 
the precedents.                          -------------------

General Rule

Sec. 36.1 It is not in order in a general appropriation bill to direct 
    that certain funds therein shall be distributed without regard to 
    the provisions of the authorizing legislation.

    On June 15, 1972,(19) during consideration in the 
Committee of the Whole of a general appropriation bill (H.R. 15417), a 
point of order was raised against the following amendment:
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19. 118 Cong. Rec. 21131, 92d Cong. 2d Sess.
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        Mr. [Sidney R.] Yates [of Illinois]: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Yates: On page 22, line 4, change 
        the period to a semicolon and add the following: ``Provided 
        that the funds herein appropriated for bilingual education 
        under the Bilingual Education Act shall be distributed in 
        accordance with the authority contained in Section 703(b) of 
        said Act requiring that the Commissioner shall give highest 
        priority to states and areas within states having the greatest 
        need for programs under the Act, and that

[[Page 5836]]

        such priority shall take into consideration the number of 
        children of limited English-speaking ability between the ages 
        of three (3) and eighteen (18) in each state; and provided 
        further that such distribution of funds shall be made [without 
        regard to the provisions of Section 704(a) of the Bilingual 
        Education Act that distribution be `from families (A) with 
        incomes below $3,000 per year, or (B) receiving payments under 
        a program of aid to families with dependent children under a 
        State plan approved under title IV of the Social Security Act', 
        and of Section 704(c) of the Bilingual Education Act that 
        distribution be `from families (A) with incomes below $3,000 
        per year, or (B) receiving payments under a program of aid to 
        families with dependent children under a State plan approved 
        under title IV of the Social Security Act.' '']

        Mr. [Daniel J.] Flood [of Pennsylvania]: Mr. Chairman, I make a 
    point of order against the amendment.

        The Chairman: (20) Does the gentleman desire to be 
    heard on the point of order?
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20. Chet Holifield (Calif.).
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        Mr. Flood: Yes, Mr. Chairman, and very briefly.
        Mr. Chairman, it is very clear and I read now from Cannon's 
    Procedures in the House of Representatives, page 46, which reads as 
    follows:

            Any deviation however slight from the text of existing law.

        It says that no deviation however slight. This is certainly 
    that, if you heard it as I did. I had a copy of the amendment and I 
    read it carefully in some detail.
        Mr. Chairman, I could not make it any plainer if I wrote it 
    myself.
        The Chairman: Does the gentleman from Illinois desire to be 
    heard on the point of order?
        Mr. Yates: Yes, Mr. Chairman.
        Mr. Chairman, I conceive of this amendment as being a 
    limitation on an appropriation bill in determining the manner in 
    which funds be spent. I, therefore, think it is in order.
        The Chairman: The Chair is ready to rule. The amendment does 
    not restate existing law but changes existing law. Therefore, it 
    becomes legislation on an appropriation bill, and the Chair 
    sustains the point of order.

Mandating Spending Levels

Sec. 36.2 Language in an appropriation bill mandating a certain 
    allotment of funds appropriated therein was ruled out as 
    legislation on an appropriation bill.

    On Mar. 29, 1960,(1) during consideration in the 
Committee of the Whole of a general appropriation bill (H.R. 11390), a 
point of order was raised against the following provision:
---------------------------------------------------------------------------
 1. 106 Cong. Rec. 6862, 6863, 86th Cong. 2d Sess.
---------------------------------------------------------------------------

                       Defense Educational Activities

        For grants, loans, and payments under the National Defense 
    Education Act of 1958 (72 Stat. 1580-1605), $171,000,000, of which 
    $44,000,000 shall be for capital contributions to student loan 
    funds and loans for non-Federal capital contributions to stu

[[Page 5837]]

    dent loan funds, of which not to exceed $1,000,000 shall be for 
    such loans for non-Federal capital contributions; $57,750,000 shall 
    be for grants to States and loans to nonprofit private schools for 
    science, mathematics, or modern foreign language equipment and 
    minor remodeling of facilities and for grants to States for 
    supervisory and other services, [but allotments pursuant to section 
    302 or 305 of such Act for the current fiscal year shall be made on 
    the basis of the maximum amounts authorized to be appropriated 
    under section 301 of such Act;] $9,000,000 shall be for grants to 
    States for area vocational education programs; and $15,000,000 
    shall be for grants to States for testing, guidance, and 
    counselling: Provided further, That no part of this appropriation 
    shall be available for the purchase of science, mathematics, and 
    modern language teaching equipment, or equipment suitable for use 
    for teaching in such fields of education, which can be identified 
    as originating in or having been exported from a Communist country, 
    unless such equipment is unavailable from any other source. . . .
        Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, a point of order.
        The Chairman: (2) The gentleman will state it.
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 2. Eugene J. Keogh (N.Y.).
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        Mr. Gross: Mr. Chairman, I make a point of order against the 
    language on page 17, line 19, which reads as follows:

            But allotments pursuant to section 302 or 305 of such act 
        for the current fiscal year shall be made on the basis of the 
        maximum amounts authorized to be appropriated under section 301 
        of such act.

        I make the point of order that this language constitutes 
    legislation on an appropriation bill.
        The Chairman: Does the gentleman from Rhode Island care to be 
    heard on the point of order?
        Mr. [John E.] Fogarty [of Rhode Island]: Mr. Chairman, I am in 
    no other position than to concede that it is legislation on an 
    appropriation bill; but it will change the basic effect of the act, 
    throw it out of control. However, if the gentleman insists on his 
    point of order, there is nothing else I can do.
        Mr. Gross: I insist on the point of order, Mr. Chairman.
        The Chairman: The gentleman from Iowa insists on his point of 
    order.
        The point of order is sustained.

Requiring a Certain Apportionment of Funds

Sec. 36.3 To a general appropriation bill including funds for 
    educational programs authorized by law, an amendment denying the 
    use of such funds until the Commissioner of Education makes an 
    apportionment thereof contrary to the formula prescribed by 
    existing law was held to impose additional duties on the 
    Commissioner and to change existing law and was thus ruled out as 
    legislation.

    On June 26, 1968,(3) during consideration in the 
Committee of the

[[Page 5838]]

Whole of the Departments of Labor and Health, Education, and Welfare 
appropriation bill (H.R. 18037), a point of order was raised against 
the following provision:
---------------------------------------------------------------------------
 3. 114 Cong. Rec. 18894, 18895, 90th Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [Albert H.] Quie [of Minnesota]: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Quie: On page 13, line 24, strike 
        the word ``Provided'' and all the language that follows through 
        the word ``grants'' on page 14, line 3, and insert in lieu 
        thereof the following: [``Provided, That no part of this 
        appropriation shall be made available to any local educational 
        agency in any State from funds appropriated to carry out such 
        title II for the fiscal year 1969 until there has been made 
        available from this appropriation to each local educational 
        agency in the State in whose schools the number of children 
        counted under section 103(a)2 of such title II exceeds 25 per 
        centum of the total enrollment in such schools an amount at 
        least equal to the amount made available to it for the fiscal 
        year 1968 from funds appropriated to carry out such title:] 
        Provided further, That the Commissioner shall make no part of 
        this appropriation available to any local educational agency 
        which fails to give priority in carrying out programs under 
        such title II to schools serving school attendance areas of 
        greatest need:''.

        Mr. [Daniel J.] Flood [of Pennsylvania]: Mr. Chairman, I 
    reserve a point of order against the amendment. I propose to make a 
    point of order that this is legislation on an appropriation bill.
        The Chairman: (4) The gentleman reserves a point of 
    order. . . .
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 4.  Chet Holifield (Calif.).
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        Mr. Flood: Mr. Chairman, I must insist upon my point of order. 
    This amendment obviously and clearly changes the entire system of 
    allocations. It attempts to create a formula. If ever I have seen 
    legislation on an appropriation bill, this is it.
        Mr. Chairman, I insist upon my point of order.
        The Chairman: Does the gentleman from Minnesota desire to be 
    heard on the point of order?
        Mr. Quie: Yes, Mr. Chairman.
        My amendment is a limitation on the payment of $1,064,000,000. 
    It is a similar limitation to that placed on the expenditure in 
    other parts of the bill; for instance, pages 13 and 14, as the 
    provisos. Also, as to the impact aid, we see some of the same kinds 
    of limitations, where there could be no reduction for category A 
    students but the reduction all would have to be for category B 
    students.
        My amendment is written in the same way, as a limitation on 
    payments under this bill.
        The Chairman: The Chair is ready to rule.
        The Chair has had an opportunity to read the amendment and has 
    listened to the arguments for the point of order and against the 
    point of order.
        The amendment offered by the gentleman from Minnesota [Mr. 
    Quie] provides that:

             No funds may be made available from this appropriation 
        until there has been made available from this appropriation (to 
        certain local edu

[[Page 5839]]

        cational agencies) an amount at least equal to the amount made 
        available to it in fiscal 1968.

        The Chair has examined the amendment, the bill, and the 
    provisions of title II of the act of September 30, 1950, as 
    amended. The effect of the amendment is to prohibit the 
    Commissioner of Education from making any payments to any State 
    from this appropriation until there is an amount made available to 
    local educational agencies in certain States at least equal to that 
    provided last year.
        The Chair feels that to make an appropriation contingent upon 
    certain actions to be taken by the Commissioner which impose 
    additional duties that are contrary to the apportionment formula in 
    existing law constitutes legislation on an appropriation bill, in 
    violation of rule XXI, clause 2.
        The Chair therefore sustains the point of order.

Permitting Reapportionment of Unused Funds

Sec. 36.4 In an appropriation bill providing funds for the Office of 
    Education, language ``[t]hat the amount of allotment which States 
    and Territories are not prepared to use may be reapportioned among 
    other States and Territories applying therefor for use in the 
    programs for which the funds were originally apportioned'', was 
    conceded and held to be legislation and not in order.

    On Mar. 29, 1957,(5) during consideration in the 
Committee of the Whole of the Departments of Labor and Health, 
Education, and Welfare appropriation bill (H.R. 6287), a point of order 
was raised against the following provision:
---------------------------------------------------------------------------
 5. 103 Cong. Rec. 4805, 85th Cong. 1st Sess.
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        The Clerk read as follows:

                              office of education

            Promotion and further development of vocational education: 
        For carrying out the provisions of section 3 of the Vocational 
        Education Act of 1946, as amended (20 U.S.C., ch. 2), and 
        section 202 of said act (70 Stat. 925), section 4 of the act of 
        March 10, 1924 (20 U.S.C. 29), section 1 of the act of March 3, 
        1931 (20 U.S.C. 30), the act of March 18, 1950 (20 U.S.C. 31), 
        including $4 million for extension and improvement of practical 
        nurse training, $33,442,081: Provided, That the apportionment 
        to the States under section 3 (a), (1), (2), (3), and (4) of 
        the Vocational Education Act of 1946 shall be computed on the 
        basis of not to exceed $29,267,081 for the current fiscal year: 
        [Provided further, That the amount of allotment which States 
        and Territories are not prepared to use may be reapportioned 
        among other States and Territories applying therefor for use in 
        the programs for which the funds were originally apportioned.]

        Mr. [Edgar W.] Hiestand [of California]: Mr. Chairman, a point 
    of order.
        The Chairman: (6) The gentleman will state it.
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 6. Aime J. Forand (R.I.).
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        Mr. Hiestand: I wish to raise the point of order against the 
    proviso on

[[Page 5840]]

    line 14, page 17, on the ground that it is legislation on an 
    appropriation bill. Coming as it does, it would make a change, you 
    might say, in the formula that has been adopted in the basic act; 
    the formula for the distribution of funds.
        The Chairman: Does the gentleman from Rhode Island desire to be 
    heard on the point of order?
        Mr. [John E.] Fogarty [of Rhode Island]: Mr. Chairman, I have 
    no other recourse but to agree that it is subject to a point of 
    order. But, when you do strike this out, you are going to penalize 
    those States who have the best programs for vocational training.
        The Chairman: The gentleman concedes the point of order, and 
    the Chair sustains the point of order.

Exemption From Mandatory Funding Levels

Sec. 36.5 A provision in a general appropriation bill requiring that 
    the mandatory funding levels prescribed by existing law shall not 
    be effective during the current fiscal year was conceded to change 
    existing law and was ruled out as in violation of Rule XXI clause 
    2.

    On July 23, 1970,(7) during consideration in the 
Committee of the Whole of the Departments of Labor and Health, 
Education, and Welfare appropriation bill (H.R. 18515), the following 
point of order was raised:
---------------------------------------------------------------------------
 7. 116 Cong. Rec. 25634, 91st Cong. 2d Sess.
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                       Office of Economic Opportunity

                        economic opportunity program

        For expenses necessary to carry out the provisions of the 
    Economic Opportunity Act of 1964 (Public Law 88-452, approved 
    August 20, 1964), as amended, $2,046,200,000 . . . . Provided 
    further, [That those provisions of the Economic Opportunity 
    Amendments of 1967 and 1969 that set mandatory funding levels shall 
    not be effective during the fiscal year ending June 30, 1971.]
        Mr. [Carl D.] Perkins [of Kentucky]: Mr. Chairman, I make a 
    point of order against the language beginning on page 38, line 25, 
    and on page 39 through line 3. The language reads:

            Provided further, That those provisions of the Economic 
        Opportunity Amendments of 1967 and 1969 that set mandatory 
        funding levels shall not be effective during the fiscal year 
        ending June 30, 1971.

        Mr. Chairman, this is legislation in an appropriation bill and 
    sets aside all the earmarking that we provided for in the Economic 
    Opportunity Authorization Act.
        The Chairman: (8) Does the gentleman from 
    Pennsylvania desire to be heard on the point of order?
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 8. Chet Holifield (Calif.).
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        Mr. [Daniel J.] Flood [of Pennsylvania]: Mr. Chairman, we 
    concede the point of order.
        The Chairman: The point of order is conceded and the Chair 
    therefore sustains the point of order.

[[Page 5841]]

Requiring Priorities in Allocating Funds

Sec. 36.6 To a paragraph in a general appropriation bill making an 
    appropriation for grants to states for hospital construction, an 
    amendment providing that funds for new obligations must be allotted 
    on a basis of priority to projects most advanced as determined by 
    the several states was ruled out as constituting legislation.

    On Apr. 18, 1951,(9) during consideration in the 
Committee of the Whole of the Department of Labor and Federal Security 
Agency appropriation bill (H.R. 3709), the following transpired:
---------------------------------------------------------------------------
 9. 97 Cong. Rec. 4078, 4081, 4082, 82d Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Grants for hospital construction: For payments for hospital 
        construction under part C, title VI, of the act, as amended, to 
        remain available until expended, $175,000,000, of which 
        $100,000,000 is for payment of obligations incurred under 
        authority heretofore granted under this head: Provided, That 
        allotments under such part C to the several States for the 
        current fiscal year shall be made on the basis of an amount 
        equal to that part of the appropriation granted herein which is 
        available for new obligations.

        Mr. [Foster] Furcolo [of Massachusetts]: Mr. Chairman, I offer 
    an amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Furcolo: Page 21, line 13, strike 
        out ``$175,000,000'' and insert in its place the figure 
        ``$250,000,000.''

        Mr. Furcolo: Mr. Chairman, the amendment I offer is on page 21, 
    line 13, where there will be a substitution of the figure 
    $175,000,000 to make it read $250,000,000. . . .
        Mr. H. Carl Andersen [of Minnesota]: Mr. Chairman, I offer a 
    substitute.
        The Clerk read as follows:

            Amendment offered by Mr. H. Carl Andersen as a substitute 
        for the amendment offered by Mr. Furcolo: Page 21, line 19, 
        after ``obligations'' strike out the period and insert 
        ``Provided, That the funds provided for new obligations shall 
        be allotted on a basis of priority to those projects most 
        advanced in the planning and financing as determined by the 
        several States.''

        Mr. [Christopher C.] McGrath [of New York]: Mr. Chairman, I 
    make the point of order against the substitute that it is 
    legislation on an appropriation bill. . . .
        Mr. H. Carl Andersen: The Chair will notice in line 16 the 
    provision ``That allotments under such part C to the several 
    States'' and so forth and so on. If that provision is germane and 
    in order, as it appears to be why should not a further provision as 
    to how the State shall allot the money, based upon the degree of 
    advancement, be germane? The gentleman from Arkansas should either 
    make a point of order against that provision also or withdraw his 
    opposition to mine.
        The Chairman: (10) The Chair is ready to rule.
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10. Charles M. Price (Ill.).

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[[Page 5842]]

        After studying the substitute amendment offered by the 
    gentleman from Minnesota, the Chair feels that this is a change in 
    existing law, and therefore sustains the point of order that it is 
    legislation on an appropriation bill.
        In regard to the second point raised by the gentleman, the 
    Chair holds that because other legislative language may be 
    permitted to remain in the bill, that does not make in order 
    language adding legislation in violation of the rules.
        The Chair, therefore, sustains the point of order submitted by 
    the gentleman from New York.

Changing Allotment in Authorization by Line-item Appropriations

Sec. 36.7 To a supplemental appropriation bill containing funds for 
    hospitals under the Hill-Burton Act, an amendment making funds 
    available for 35 specific hospitals, itemized individually and by 
    states, was held to change the apportionment formula for hospital 
    construction funds in the basic act and to constitute legislation 
    on an appropriation bill in violation of Rule XXI clause 2.

    On May 7, 1970,(11) during consideration in the 
Committee of the Whole of a supplemental appropriation bill (H.R. 
17399), a point of order was raised against the following amendment:
---------------------------------------------------------------------------
11. 116 Cong. Rec. 14566, 91st Cong. 2d Sess.
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        Mr. [Henry C.] Schadeberg [of Wisconsin]: Mr. Chairman, I offer 
    an amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Schadeberg: On page 11, between 
        lines 2 and 3, insert the following:

          ``Health Services and Mental Health Administration Hospital 
                                  Construction

            ``For an additional amount for `Hospital Construction', 
        $8,703,078, for thirty-five hospitals in Kansas, Nebraska, 
        Oklahoma, Arkansas, New Hampshire, Maryland, North Carolina, 
        Wisconsin, and Indiana under title III of the Public Health 
        Service Act as follows:
            ``The State of Kansas, $1,130,245:
            ``(1) the Saint Francis Hospital in Topeka, $288,496.
            ``(2) the Saint John's Hospital in Salina, $68,328.
            ``(3) the Mount Carmel Hospital in Pittsburg, $273,312. . . 
        .
            ``The State of Indiana, $250,443:
            ``(1) the Saint Mary Mercy Hospital in Gary and the Union 
        Hospital in Terre Haute.''

        Mr. [Daniel J.] Flood [of Pennsylvania]: Mr. Chairman, I make a 
    point of order against the amendment on the ground that there is no 
    authorization in law for the appropriations earmarked for these 
    specific hospitals.
        The Chairman: (12) Does the gentleman from Wisconsin 
    wish to be heard on the point of order?
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12. James G. O'Hara (Mich.).
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        Mr. Schadeberg: Only, Mr. Chairman, to suggest that the 
    hospitals that are mentioned have had priority under

[[Page 5843]]

    the Hill-Burton Act and are under construction.
        The Chairman: The gentleman from Wisconsin, as the Chair 
    understands it, takes the position that these funds are authorized 
    by the Hill-Burton Act. Is that correct?
        Mr. Schadeberg: They have had construction started under the 
    Hill-Burton Act, yes.
        The Chairman: Does the gentleman from Pennsylvania desire to 
    respond to that?
        Mr. Flood: Yes, of course, Mr. Chairman. The Hill-Burton 
    Hospital Construction Act authorizes appropriations only to States 
    and to territories under a very, very specific mathematical 
    formula. There is nothing in that law at any place which authorizes 
    appropriations for individual hospitals. As a matter of fact, the 
    law provides that eligibility for individual hospitals shall be 
    determined only by the States. There is no authorization either for 
    appropriations to specific hospitals or for the U.S. Public Health 
    Service to designate by hospital where appropriated funds are to be 
    used.
        The Chairman: The Chair is prepared to rule on the point of 
    order. The Chair holds that the provisions of title VI of the 
    Public Health Service Act are as described by the gentleman from 
    Pennsylvania. The authorizing legislation provides for 
    appropriations on an allotment formula to the States and does not 
    authorize appropriations in any way for the construction of 
    individual hospitals or permit the selection of individual 
    hospitals for appropriation. The Chair, therefore, is constrained 
    to sustain the point of order on the ground that the proposed 
    amendment constitutes legislation on an appropriation bill.

State Educational Aid--``Hold Harmless'' Provision

Sec. 36.8 Language in a general appropriation bill providing that the 
    amounts to be paid to state educational agencies for certain 
    elementary and secondary school aid during fiscal 1971 shall not be 
    more than amounts made available for those purposes during the 
    preceding fiscal year, and providing that amounts for other 
    categories of such aid in fiscal 1971 shall not be less than 
    amounts available for that purpose in the preceding fiscal year, 
    was held to change the ratable reduction formula in existing law 
    and to impose new duties on an executive official, and was ruled 
    out on a point of order.

    On Apr. 7, 1971,(13) during consideration in the 
Committee of the Whole of the Department of Education appropriation 
bill (H.R. 7016), a point of order was raised against the following 
provision:
---------------------------------------------------------------------------
13. 117 Cong. Rec. 10061, 92d Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

[[Page 5844]]

                          Title I--office of education

                       elementary and secondary education

            For carrying out, to the extent not otherwise provided, 
        title I ($1,500,000,000), title II ($85,000,000), title III 
        ($143,393,000), title V-A ($33,000,000), title VII, and section 
        807 of the Elementary and Secondary Education Act, section 402 
        of the General Education Provisions Act, and title III-A of the 
        National Defense Education Act of 1958 ($20,000,000), 
        $1,822,218,000: Provided, That (1) the amounts made available 
        to State agencies for the purposes of section 103(a) (5), (6), 
        and (7) of title I-A of the Elementary and Secondary Education 
        Act and to the States for the purposes of title I-B shall not 
        be more than the amounts made available in fiscal year 1971 for 
        these purposes and (2) the aggregate amounts made available to 
        each State under title I-A for grants to local educational 
        agencies within that State shall not be less than such amounts 
        as were made available for that purpose in fiscal year 1971.

        Mr. [James G.] O'Hara [of Michigan]: Mr. Chairman, I make a 
    point of order to the language of the provisos in the paragraph 
    just read, beginning at line 9 on page 2, and running through line 
    18 on page 2.
        The Chairman: (14) The gentleman will state his 
    point of order.
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14. Chet Holifield (Calif.).
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        Mr. O'Hara: Mr. Chairman, my point of order is that the 
    language in the provisos constitutes legislation on an 
    appropriation bill. It provides for adjustments different than 
    those provided in the authorizing legislation, to wit: Section 144 
    of the Elementary and Secondary Education Act, and that, in 
    addition, the provisos require the exercise of judgmental and 
    discretionary functions on the part of the administrator; imposing 
    those conditions upon him.
        For those reasons, Mr. Chairman, I make a point of order 
    against the language of the provisos.
        The Chairman: Does the gentleman from Pennsylvania desire to be 
    heard on the point of order?
        Mr. [Daniel J.] Flood [of Pennsylvania]: I do, Mr. Chairman.
        Mr. Chairman, this is the classical problem that arises in this 
    bill since we first brought it here a few years ago. It is purely 
    and simply a limitation, and no more and no less. We have heard the 
    point of order before.
        I suggest that the point of order not be sustained.
        The Chairman: The Chair is ready to rule.
        The Chair has listened with care to the presentations of the 
    gentleman from Michigan and the chairman of the subcommittee. The 
    Chair has also examined the provisions of title I of the Elementary 
    and Secondary Education Act.
        It seems to the Chair that the argument is essentially this: 
    certain appropriations are authorized for programs under title I of 
    the act. The Committee on Appropriations has reduced this amount 
    and has appropriated $1.5 billion. There are within title I of the 
    act certain legislative directions to the Commissioner of Education 
    about how entitlements for the various State educational agencies 
    are to be computed. These are rather complicated and the Chair does 
    not think it necessary to ex

[[Page 5845]]

    plain them in detail. But the Chair does wish to refer to the 
    explicit language of section 144 of the act, and will paraphrase a 
    portion of that section:

            If the sums appropriated for any fiscal year for making the 
        payments provided in this title are not sufficient to pay in 
        full the total amounts which all local and State education 
        agencies are eligible to receive--

        And that is the case now before this Committee.
        the amount available for each grant to a state agency under 
        paragraphs (5), (6) or (7) of section 103(a) shall be equal to 
        the maximum grant as computed under such paragraph . . .

        The section then provides for certain ratable reductions for 
    other programs under that title.
        The Chair has also examined certain precedents relating to the 
    doctrine of limitations on appropriation bills. It is clear from 
    those precedents that while it is proper in an appropriation bill 
    to deny an appropriation or refuse to appropriate for a specific 
    object or program which may be authorized by law, it is not in 
    order, under the guise of a limitation, to impose new duties on an 
    executive officer, to curtail the discretion given that officer 
    under law or to change the law.
        The Chair feels that the provision in the bill to which the 
    point of order is directed conflicts with these well-established 
    doctrines. The Chair therefore sustains the point of order.

Sec. 36.9 Language in a general appropriation bill providing that 
    grants to be paid to states for certain elementary and secondary 
    school aid during fiscal 1973 shall not be less than amounts 
    available for that purpose in the preceding fiscal year was 
    conceded to change the ratable reduction formula in existing law 
    and to impose new duties on executive officials (to determine new 
    minimum amounts) and was ruled out on a point of order.

    On June 15, 1972,(15) during consideration in the 
Committee of the Whole of the Departments of Labor and Health, 
Education, and Welfare appropriation bill (H.R. 15417), a point of 
order was raised against the following provision:
---------------------------------------------------------------------------
15. 118 Cong. Rec. 21104, 92d Cong. 2d Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

                              office of education

                       elementary and secondary education

            For carrying out, to the extent not otherwise provided, 
        title I ($1,597,-500,000), title III ($146,393,000), and title 
        V, Parts A and C ($43,000,000), of the Elementary and Secondary 
        Education Act, $1,786,893,000: Provided, That grants to States 
        on behalf of local education agencies under said title I-A 
        shall not be less than grants made to such agencies in the 
        fiscal year 1972.

        The Chairman: (16) For what purpose does the 
    gentleman from Michigan (Mr. O'Hara) rise?
---------------------------------------------------------------------------
16. Chet Holifield (Calif.).

---------------------------------------------------------------------------

[[Page 5846]]

        Mr. [James G.] O'Hara: Mr. Chairman, I make a point of order to 
    the proviso beginning on line 10, page 19, and extending through 
    line 13, page 19.
        The Chairman: That is as to the language beginning on line 10, 
    with the word ``Provided,''?
        Mr. O'Hara: That is right, Mr. Chairman, and continuing on 
    through line 13 on page 19.
        Mr. Chairman, may I be heard on the point of order?
        The Chairman: The gentleman is recognized.
        Mr. O'Hara: Mr. Chairman, I make the point of order that the 
    proviso constitutes legislation on an appropriation bill and, 
    therefore, ought to be stricken.
        I call the attention of the Chair to the ruling made by the 
    Chair on a very similar point which is found in the Congressional 
    Record, vol. 116, part 3, page 4019.
        The Chairman: Does the gentleman from Pennsylvania (Mr. Flood) 
    desire to be heard on the point of order?
        Mr. [Daniel J.] Flood: Mr. Chairman, the same point of order 
    was raised last year, and we concede the point of order.
        The Chairman: The gentleman from Pennsylvania concedes the 
    point of order.
        The point of order is sustained.

Local Education Aid; Changing Allotment Formula

Sec. 36.10 A provision in a general appropriation bill which changes 
    the legislative formula governing allotment of certain funds to 
    local educational agencies in federally affected areas was conceded 
    and held to be legislation on an appropriation bill in violation of 
    Rule XXI clause 2.

    On Feb. 19, 1970,(17) during consideration in the 
Committee of the Whole of the Departments of Labor and Health, 
Education, and Welfare appropriation bill (H.R. 15431), a point of 
order was raised against the following provision:
---------------------------------------------------------------------------
17. 116 Cong. Rec. 4015, 91st Cong. 2d Sess. Compare Sec. 73.1, infra.
---------------------------------------------------------------------------

        The Clerk read as follows:

                 School Assistance in Federally Affected Areas

            For carrying out title I of the Act of September 30, 1950, 
        as amended (20 U.S.C., ch. 13), and the Act of September 23, 
        1950, as amended (20 U.S.C., ch. 19), $440,167,000 of which 
        $425,000,000 shall be for the maintenance and operation of 
        schools as authorized by said title I of the Act of September 
        30, 1950, as amended, and $15,167,000 which shall remain 
        available until expended, shall be for providing school 
        facilities as authorized by said Act of September 23, 1950: 
        Provided, That this appropriation shall not be available to pay 
        local educational agencies pursuant to the provisions of any 
        other section of said title I until payment has been made of 90 
        per centum of the amounts to which such agencies are entitled 
        pursuant to section 3(a) of said title and 100 per centum of 
        the amounts payable

[[Page 5847]]

        under section 6 of said title: Provided further, That the 
        amount to be paid to an agency pursuant to said title (except 
        section 7) for the current fiscal year shall not be less, by 
        more than 5 per centum of the current expenditures for free 
        public education made by such agency for the fiscal year 1969, 
        than the amount of its entitlement under said title (except 
        section 7) for the fiscal year 1969.

        Mr. [James G.] O'Hara [of Michigan]: Mr. Chairman, I rise for 
    the purpose of making a point of order against the second proviso 
    of the paragraph in question, beginning on line 18 and down through 
    line 24, on the ground that it is not a valid limitation, a 
    definitive direction. It is legislation on an appropriation bill 
    and, therefore, forbidden.
        The Chairman: (18) Does the gentleman from 
    Pennsylvania care to be heard on the point of order?
---------------------------------------------------------------------------
18. Chet Holifield (Calif.).
---------------------------------------------------------------------------

        Mr. [Daniel J.] Flood [of Pennsylvania]: Mr. Chairman, this is 
    legislation on an appropriation bill, and I most reluctantly 
    concede.
        The Chairman: The Chair is prepared to rule. The point of order 
    is sustained.

Changing Computation Formula in Law

Sec. 36.11 To separate paragraphs in a general appropriation bill, both 
    making appropriations for payments to local educational agencies, 
    similar amendments providing bases for computation of the 
    recipients' contributions and for computation of the federal 
    payments different from the criteria specified by the law 
    authorizing such payments were conceded and held to constitute 
    legislation in violation of the rules.

    On Apr. 18,(19) during consideration in the Committee of 
the Whole of the Department of Labor and Federal Security Agency 
appropriation bill (H.R. 3709), a point of order was raised against the 
following amendments:
---------------------------------------------------------------------------
19. 97 Cong. Rec. 4074, 82d Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Payments to school district: For payments to local 
        educational agencies for the maintenance and operation of 
        schools as authorized by the act of September 30, 1950 (Public 
        Law 874), $28,000,000.

        Mr. [William F.] Norrell [of Arkansas]: Mr. Chairman, I offer 
    an amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Norrell: On page 15, line 9, 
        strike out the period, insert a colon in lieu thereof and the 
        following: ``Provided, That, for the purposes of this 
        appropriation, (1) the local contribution rate computed for any 
        local educational agency under section 3 of such act of 
        September 30, 1950, shall be not less than 80 percent and not 
        more than 120 percent of the national average local 
        contribution rate during the fiscal year ending June 30, 1950, 
        and (2) the current expenditures per child determined for any 
        such agency under section 4 of such

[[Page 5848]]

        act of September 30, 1950, shall be not less than 80 percent 
        and not more that 120 percent of the national average current 
        expenditures per child for the purpose of providing free public 
        education during the fiscal year ending June 30, 1950.''

        Mr. [John E.] Fogarty [of Rhode Island]: Mr. Chairman, I make a 
    point of order against the amendment on the ground that it is 
    legislation on an appropriation bill. . . .
        Mr. Norrell: Mr. Chairman, I ask unanimous consent that my 
    other amendment on page 16, line 3, may be considered at this time, 
    for I am sure the gentleman from Rhode Island will make a point of 
    order against it also on the same grounds. I make this request in 
    order that my remarks may be directed to both amendments at the 
    same time.
        The Chairman: (20) Is there objection to the request 
    of the gentleman from Arkansas?
---------------------------------------------------------------------------
20. Charles M. Price (Ill.).
---------------------------------------------------------------------------

        There was no objection.
        The Chairmam: The Clerk will report the second amendment 
    offered by the gentleman from Arkansas.
        The Clerk read as follows:

            Amendment offered by Mr. Norrell: On page 16, line 3, 
        strike out the period, insert in lieu thereof a colon and the 
        following: ``And provided further, That in the case of any 
        application by a local educational agency approved after July 
        1, 1951, for payment under section 202 of such act, the amount 
        made available by the Commissioner of Education out of this 
        appropriation shall not exceed $500 times the number of 
        children with respect to whom such agency is entitled to 
        receive payment under such section 202.''

        Mr. Fogarty: Mr. Chairman, I make a point of order against this 
    amendment also, on the ground that it is legislation on an 
    appropriation bill; and I reserve both points of order, Mr. 
    Chairman. . . .
        Mr. Norrell: Mr. Chairman, I am not going to consume the entire 
    5 minutes.
        Mr. Chairman, I have consulted with the House Parliamentarian 
    with regard to both these amendments. They deal with the law that 
    we enacted last year regarding the school-aid program in defense 
    areas both as to construction and maintenance.
        I admit that my amendments, if adopted, would change the basic 
    law of the land regarding these matters and, therefore, they are 
    subject to points of order; this is legislation on an appropriation 
    bill. But the facts are that since the enactment of this law last 
    year certain weaknesses have arisen which should have the attention 
    of this Congress. . . .
        The Chairman: The Chair sustains the point of order against 
    both amendments.

Impacted Aid; No Funds Until Apportionment Made in Certain Manner

Sec. Sec. 36.12 A provision in an amendment to a general appropriation 
    bill denying the use of any funds for impacted school aid until the 
    official allocating the funds makes an apportionment thereof 
    contrary to the formula prescribed by existing

[[Page 5849]]

    law was held to impose additional duties upon that official, thus 
    changing existing law and constituting legislation on an 
    appropriation bill.

    On Apr. 14, 1970,(1) during consideration in the 
Committee of the Whole of the Education Department appropriation bill 
(H.R. 16916), a point of order was raised against the following 
amendment:
---------------------------------------------------------------------------
 1. 16 Cong. Rec. 11676, 11677, 91st Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [Robert H.] Michel [of Illinois]: Mr. Chairman, I offer an 
    amendment in the nature of a substitute.
        The Clerk read as follows:

            Amendment in the nature of a substitute offered by Mr. 
        Michel: Strike all after the enacting clause and insert:

                          Title I--Office of Education

                 school assistance in federally affected areas

            For carrying out title I of the Act of September 30, 1950, 
        as amended (20 U.S.C., ch. 13), and the Act of September 23, 
        1950, as amended (20 U.S.C., ch. 19), $440,000,000 of which 
        $425,000,000 shall be for the maintenance and operation of 
        schools as authorized by said title I of the Act of September 
        30, 1950, as amended, and $15,000,000 which shall remain 
        available until expended, shall be for providing school 
        facilities as authorized by said Act of September 23, 1950: 
        Provided, That this appropriation shall not be available to pay 
        local educational agencies pursuant to the provisions of any 
        other section of said title I until payment has been made of 90 
        per centum of the amounts to which such agencies are entitled 
        pursuant to section 3(a) of said title and 100 per centum of 
        the amounts payable under section 6 of said title. . . .

        Mr. [James G.] O'Hara [of Michigan]: Then I make a point of 
    order against the amendment offered by the gentleman from Illinois.
        The Chairman: (2) The Chair will hear the gentleman 
    on the point of order.
---------------------------------------------------------------------------
 2. Chet Holifield (Calif.).
---------------------------------------------------------------------------

        Mr. O'Hara: Mr. Chairman, the point of order against the 
    amendment offered by the gentleman from Illinois is that it 
    contains legislation in an appropriation bill, to wit, the language 
    on page 2, lines 6 to 12 is clearly legislation on an appropriation 
    bill providing for different dispositions of funds under those 
    sections than are provided by law. Therefore I make a point of 
    order against the amendment offered by the gentleman from Illinois. 
    . . .
        Mr. [Daniel J.] Flood [of Pennsylvania]: Mr. Chairman, it is as 
    plain as the nose on my face, and I have got a nose, that this is 
    clearly a limitation upon the expenditure of funds. That is clearly 
    it. I suggest the point must be overruled.
        The Chairman: Does the gentleman from Michigan desire to be 
    heard further?
        Mr. O'Hara: Mr. Chairman, I would like to be heard. I would 
    like to say first, Mr. Chairman, if the proviso to which I have 
    referred authorizes the use on a different formula than that 
    provided in the basic authorizing legislation, and I do not believe 
    that the proviso is a limitation or retrenchment

[[Page 5850]]

    of appropriations which would be an expansion, the proviso is 
    neither a limitation nor retrenchment of appropriations, because it 
    permits payment to be made in excess of the payments authorized by 
    the above quoted section of Public Law 81-874.
        It may be helpful to the Chairman and to my colleagues in 
    understanding the point that the reference contained in section 
    5(c) just quoted, that various other sections of entitlements to 
    payments are to the so-called familiar references to categories A 
    and B children under impacted aid.
        The Chairman: The Chair is prepared to rule. The gentleman from 
    Michigan (Mr. O'Hara), has raised a point of order against the 
    proviso appearing in the amendment in the nature of a substitute 
    and referred to in the original bill as the proviso on page 2 of 
    the bill on the ground that it constitutes legislation on an 
    appropriation bill in violation of clause 2, rule XXI. That proviso 
    would make appropriations in the bill unavailable for payment to 
    local educational agencies pursuant to the provisions of any other 
    section of title I of the act of September 30, 1950--which 
    authorizes school assistance in federally affected areas--until 
    payment has been made of 90 percent of entitled allotments pursuant 
    to section 3(a) of said title I and of 100 percent of amounts 
    payable under section 6 of that title. The gentleman from Michigan 
    contends that such a requirement for payments of funds propriated 
    in this bill has the effect of changing the allotment formula in 
    the authorizing legislation of funds for ``category A students,'' 
    and is therefore legislation on an appropriation bill prohibited by 
    clause 2, rule XXI.
        On June 26, 1968, during consideration of the Department of 
    Labor and Health, Education, and Welfare appropriation bill for 
    fiscal year 1969, the Chair--the gentleman now occupying it--
    sustained a point of order against an amendment prohibiting the use 
    of funds in the bill for educationally deprived children until 
    there was made available therefrom for certain local educational 
    agencies an amount at least equal to that allotted in the preceding 
    year, since that amendment would have required the Commissioner of 
    Education to make an apportionment of appropriated funds contrary 
    to the formula prescribed by existing law, thus imposing additional 
    duties on that official and changing existing law.
        The Chair feels that that decision is controlling in this 
    instance. To make the appropriations authorized under certain 
    sections of the ``impacted school aid'' legislation contingent upon 
    allotment of certain percentages of entitled funds under other 
    sections of that authorizing legislation is to impose additional 
    duties on the official making the allotment and to change the 
    enforcement formula in the authorizing legislation is in violation 
    of clause 2, rule XXI.
        The Chair therefore sustains the point of order.

Rural Electrification Grants; Changing Loan Program to Grant

Sec. 36.13 To a general appropriation bill making appropriations for 
    rural electrification loans, an amendment earmarking a portion of 
    the

[[Page 5851]]

    funds for nonrepayable grants to REA borrowers in Alaska was 
    conceded to be authorized by law and was ruled out as legislation.

    On May 20, 1964,(3) during consideration in the 
Committee of the Whole of the Department of Agriculture appropriation 
bill (H.R. 11202), a point of order was raised against the following 
amendment:
---------------------------------------------------------------------------
 3. 110 Cong. Rec. 11424-26, 88th Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [Robert H.] Michel [of Illinois]: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Michel: Page 26, line 22, after 
        the word ``program'', insert the following: ``Provided, That 
        not more than $5,300,000 of the foregoing amounts shall be made 
        available to the borrowers of the Rural Electrification 
        Administration in Alaska for the repair, rehabilitation or 
        reconstruction of all their facilities and properties damaged, 
        destroyed, or dislocated as a result of the earthquakes of 
        March 1964, and provided further that any amounts so made 
        available and used shall not be repayable by the borrowers.''

        Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I 
    reserve a point of order. . . .
        The Chairman: (4) The gentleman will state his point 
    of order.
---------------------------------------------------------------------------
 4.  Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------

        Mr. Whitten: Mr. Chairman, I make the point of order that this 
    is legislation on an appropriation bill. There is no authority in 
    law for making this direct grant from the REA program. May I point 
    out under the basic law the committee is limited to fixing a 
    ceiling upon what the REA may do under the basic act setting up 
    their authorities, obligations, and duties. This would in effect be 
    a direct grant from the REA which borrows from the Treasury, and 
    quite clearly, in my mind, it would be legislation. . . .
        The Chairman: Does the gentleman from Illinois desire to be 
    heard on the point of order?
        Mr. Michel: Mr. Chairman, I realize as a member of the 
    committee that we cannot legislate on an appropriation bill and 
    that it is subject to a point of order. If the chairman persists in 
    it, naturally, I would have to give way.
        The Chairman: In view of the statement of the gentleman from 
    Illinois, the point of order is sustained.

Higher Education Funds: Funding For Program Not Authorized Unless 
    Others Funded First

Sec. 36.14 Where existing law authorizing programs of higher education 
    assistance provided that no payments for any fiscal year shall be 
    made for a certain category (4) unless funds have been appropriated 
    for three other student programs for that fiscal year, language in 
    a general appropriation bill containing funds for category (4) 
    which

[[Page 5852]]

    would remain available during a subsequent fiscal year for which no 
    funds for categories (1)-(3) were provided was conceded to change 
    the priority formula in the authorizing legislation and was ruled 
    out in violation of Rule XXI clause 2.

    On June 27, 1974,(5) during consideration in the 
Committee of the Whole of the Departments of Labor and Health, 
Education, and Welfare appropriation bill (H.R. 15580), a point of 
order was raised and sustained as indicated above:
---------------------------------------------------------------------------
5. 120 Cong. Rec. 21670, 21671, 93d Cong. 2d Sess.
---------------------------------------------------------------------------

        For carrying out, to the extent not otherwise provided, titles 
    I, III, IV, section 745 of title VII, and parts A, B, C, and D of 
    title IX, and section 1203 of the Higher Education Act . . . 
    section 421 of the General Education Provisions Act, and Public Law 
    92-506 of October 19, 1972, $2,145,271,000 . . . of which 
    $638,500,000 shall remain available through June 30, 1977, 
    $315,000,000 for subsidies on guaranteed student loans shall remain 
    available until expended: . . .

        Mrs. [Edith] Green of Oregon: Mr. Chairman, I make a point of 
    order on the language found on page 18, line 4, beginning with the 
    words ``of which'' through line 5 through ``1977,''.
        So the language I would make a point of order against, Mr. 
    Chairman, would read: ``of which $638,500,000 shall remain 
    available through June 30, 1977,''. My point of order, Mr. 
    Chairman, is that this appropriates funds for the basic opportunity 
    grants through June 30, 1977. The law requires, and I cite, Mr. 
    Chairman, in the Education Amendments Acts of 1972 this language.

            No payments may be made on the basis of entitlements--

        Which is the basic opportunity grants--
        established under this subpart during any fiscal year unless--

        And then the language continues--
        funds have been appropriated for economic opportunity grants, 
        work study, and National Defense Education Act.

        This language was very carefully drawn to protect those three 
    student aid programs. The language which we find in the bill in 
    effect provides payments for the entitlements for a year, the year 
    ending June 30, 1977, the school year 1976-77, a year in which no 
    funds are appropriated for the three other student financial aid 
    programs which are required under the law.
        Mr. [Daniel J.] Flood [of Pennsylvania]: Mr. Chairman, we will 
    concede that point of order.
        The Chairman: (6) The point of order is sustained.
---------------------------------------------------------------------------
 6. James C. Wright, Jr. (Tex.).
---------------------------------------------------------------------------

Economic Development; Mandating Obligation of Funds for Unauthorized 
    Program

Sec. 36.15 An amendment to a general appropriation bill

[[Page 5853]]

    providing that not less than a specific sum shall be used for a 
    particular purpose was held to violate Rule XXI clause 2, where its 
    proponent could not show that existing law mandated such an 
    expenditure.

    On June 18, 1976,(7) H.R. 14239 (Departments of State, 
Justice, Commerce, and the Judiciary appropriation bill for fiscal 
1977), was under consideration, which provided in part:
---------------------------------------------------------------------------
 7. 122 Cong. Rec. 19297, 94th Cong. 2d Sess.
---------------------------------------------------------------------------

        For economic development assistance as authorized by titles I, 
    II, III, IV, and IX of the Public Works and Economic Development 
    Act of 1965, as amended, and title II of the Trade Act of 1974, 
    $300,000,000.

    An amendment was offered, as follows:

        Mr. [Philip E.] Ruppe [of Michigan]: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Ruppe: In Title III, page 27, line 
        2, strike out ``$300,000,000,'' and insert in lieu thereof: 
        ``$329,500,000, of which not less than $77,000,000 shall be 
        used for economic adjustment as authorized by title IX of the 
        Public Works and Economic Development Act of 1965, as 
        amended.''. . .

        Mr. [John M.] Slack [of West Virginia]: Mr. Chairman, the 
    amendment would violate clause 2 of rule XXI which provides:

            No appropriation shall be reported in any general 
        appropriation bill, or be in order as an amendment thereto, for 
        any expenditure not previously authorized by law. . . .

        The rule adopted earlier, waiving all points of order against 
    certain provisions in the bill for failure to comply with the 
    provisions of clause 2, rule XXI, applies only to those provisions 
    in the bill. The waiver does not apply to amendments which would 
    add additional provisions.
        This amendment, Mr. Chairman, would add a provision to the bill 
    earmarking $77 million for economic adjustment under title IX of 
    the Public Works and Economic Development Act of 1965, as amended. 
    Extension of that legislation which is required for fiscal year 
    1977 has not been enacted. . . .
        Mr. Ruppe: . . . Mr. Chairman, my amendment would increase the 
    funding level of title IX of this section from $47.5 to $77 
    million. It is my understanding that that section does fund 
    economic development assistance for titles I, II, III, IV, and IX 
    of the Public Works and Economic Development Act of 1965.
        The Chairman: (8) The Chair is ready to rule.
---------------------------------------------------------------------------
 8. Otis G. Pike (N.Y.).
---------------------------------------------------------------------------

        If the amendment of the gentleman merely changed the 
    unauthorized figure permitted to remain in the appropriation bill, 
    it would be in order; but the amendment does mandate the 
    expenditure of not less than a certain amount of money for a 
    purpose which has not been authorized and as such constitutes 
    legislation in an appropriation bill.
        The Chair sustains the point of order.

[[Page 5854]]

Changing Allocation Formula; Distribution Set in Authorizing Law 
    Changed

Sec. 36.16 Where existing law required allocation of 90 percent of 
    appropriations for public service jobs in accordance with a 
    distribution formula and permitted allotment of the remaining 10 
    percent at the discretion of an executive official, an amendment to 
    a general appropriation bill requiring that a certain amount 
    therein shall be available only to provide railroad maintenance 
    jobs by contract with private employers was ruled out (1) as not 
    specifically authorized as a public service program, and (2) as 
    directly changing the allocation formula and interfering with 
    executive discretion contained in that law.

    On Mar. 12, 1975,(9) during consideration in the 
Committee of the Whole of H.R. 4481 [the Emergency Employment 
Appropriation Act of 1975], a point of order was sustained against an 
amendment to the following bill text:
---------------------------------------------------------------------------
 9. 121 Cong. Rec. 6338, 6339, 94th Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

                        temporary employment assistance

            For an additional amount for ``Temporary employment 
        assistance'', $1,625,000,000, to remain available until 
        December 31, 1975.

        Mr. [Samuel L.] Devine [of Ohio]: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Devine: Page 7, line 6, strike out 
        the period and insert in lieu thereof the following: ``; of 
        which amount $250,000,000 shall be available only for use by 
        State and local prime sponsors to provide emergency jobs for 
        unemployed workers to perform needed railroad maintenance of 
        way services pursuant to contracts with railroads located 
        within the geographical jurisdiction of such sponsors.''

        Mr. [George H.] Mahon [of Texas]: Mr. Chairman, I make a point 
    of order against the amendment on the ground that there is no 
    authorization for this action and it violates clause 2 of rule XXI. 
    . . .
        Mr. Devine: . . . I recognized when this amendment would be 
    offered it might be construed as legislation on an appropriation 
    measure, but I have gone back to the act and I have looked at the 
    act. The purpose of the act we passed in 1946, the Employment Act, 
    was consistent with those needs and obligations and other essential 
    considerations of national policy for the purpose of creating and 
    maintaining, in a manner calculated to foster and promote free 
    competitive enterprise and the general welfare, conditions under 
    which there will be afforded useful employment opportunities--and I 
    repeat, useful employment opportunities. That is the purpose of the 
    act.

[[Page 5855]]

        What we are doing in this amendment is providing useful 
    employment opportunities--not leaf raking and not make work jobs, 
    but useful employment opportunities.
        The whole purpose of the bill is to provide funds for public 
    service jobs. That is exactly the purpose of the amendment, except 
    it earmarks that. In my opinion, Mr. Chairman, this does not 
    violate the rules and I think the point of order should be 
    overruled. . . .
        The Chairman: (10) The Chair is prepared rule.
---------------------------------------------------------------------------
10.  Jack Brooks (Tex.).
---------------------------------------------------------------------------

        The amendment specifies that this quarter billion dollars shall 
    be available for use only by State and local prime sponsors to 
    provide emergency jobs for unemployed workers to perform railroad 
    maintenance. The Chair has examined Public Law 93-567, and there is 
    no specific authorization for such purpose. The Chair finds that 
    the proposed amendment further changes the allocation formula 
    contained in Public Law 93-567, which is described on pages 34 and 
    35 of the report, and further interferes with the discretion given 
    the Secretary under section 603(b) of the public law as to the 
    utilization of the final 10 percent of the authorized amounts. In 
    chapter 26, section 6 of ``Deschler's Procedure,'' it provides very 
    clearly that there is ample precedent that such reallocations in 
    appropriation bills are legislation, and the point of order is 
    sustained.

Veterans' Preference in Job Training Based on Duration of Unemployment

Sec. 36.17 A proviso in a general appropriation bill specifying that an 
    appropriation for veterans' job training be obligated on the basis 
    of those veterans unemployed the longest time, was conceded to be 
    legislation where existing law did not require that allocation of 
    funds, and was ruled out as in violation of Rule XXI clause 2(c).

    On Oct. 5, 1983,(11) during consideration of H.R. 3959 
(supplemental appropriations, fiscal 1984), a point of order was raised 
against the following provision:
---------------------------------------------------------------------------
11. 129 Cong. Rec. ----, 98th Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            For payment of expenses as authorized by the Emergency 
        Veterans' Job Training Act of 1983 (Public Law 98-77), 
        $150,000,000, to remain available until September 30, 1986: 
        Provided, That $25,000,000 of the amount appropriated shall not 
        become available for obligation until July 1, 1984: Provided 
        further, That such $25,000,000 shall be obligated on the basis 
        of those veterans unemployed the longest period of time. . . .

        Mr. [Marvin] Leath of Texas: Mr. Chairman, I make a point of 
    order that the first and second provisos in the paragraph under the 
    heading ``Veterans Job Training,'' page 2 lines 21 through 25, 
    constitute legislation on an appropriation bill and are not in 
    order under rule XXI, clause 2. . . .
        Mr. [Edward P.] Boland [of Massachusetts]: Mr. Chairman, I 
    concede the point of order.

[[Page 5856]]

        The Chairman: (12) The point of order is conceded.
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12. Martin Frost (Tex.).
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Contravening Distribution Formula in Authorization

Sec. 36.18 Where existing law (42 USC Sec. 3056d) required an 
    allocation of funds appropriated for community service employment 
    programs for older Americans between national contractors and state 
    agencies at a designated percentage by setting a ceiling on 
    allocations to national contractors, language in a paragraph of a 
    general appropriation bill directing the availability of funds to 
    national contractors above the percentage ceiling was held to be 
    legislation changing the distribution formula in existing law.

    On July 29, 1982,(13) during consideration in the 
Committee of the Whole of H.R. 6863 (supplemental appropriations, 
fiscal 1982), a point of order was sustained against a provision 
therein, as follows:
---------------------------------------------------------------------------
13. 128 Cong. Rec. 18637, 18638, 97th Cong. 2d Sess.
---------------------------------------------------------------------------

        The Chairman: (14) Are there any points of order 
    with regard to this chapter?
---------------------------------------------------------------------------
14. George E. Brown, Jr. (Calif.).
---------------------------------------------------------------------------

        Mr. [Mario] Biaggi [of New York]: Mr. Chairman, I raise a point 
    of order against the language in the paragraph entitled ``Community 
    Service Employment for Older Americans.'' . . .
        The portion of the bill to which the point of order relates is 
    as follows:

                community service employment for older americans

            For an additional amount for ``Community service employment 
        for older Americans'', $210,572,000, of which $168,457,600 
        shall be for national grants or contracts with public agencies 
        and public or private nonprofit organizations under paragraph 
        (1)(A) of section 506(a) of the Older Americans Act of 1965, as 
        amended, and $42,114,400 shall be for grants to States under 
        paragraph (3) of section 506(a) of said Act. . . .

        Mr. Chairman, this is a clear example of legislating on an 
    appropriations bill which is expressly prohibited under clause 2, 
    rule XXI of the House. Very simply, Mr. Chairman, this language 
    clearly changes the application of existing law for the title V 
    program through the appropriations process. The committee bill 
    ignores the language in the authorizing statute, section 506 of the 
    Older Americans Act as amended, by changing the current formula for 
    distribution of funds to national contractors, increasing it to 80 
    percent with the remaining 20 percent to be provided to the States. 
    Under current law, as reaffirmed by last year's reauthorization of 
    the Older Americans Act, the distribution of funds between national 
    contractors and States is 76 percent and 24 percent, respectively. 
    . . .
        Mr. [Neal] Smith of Iowa: . . . Mr. Chairman, I point out that 
    under the

[[Page 5857]]

    legislation that the gentleman refers to there is an attempt made 
    apparently to say that if more than a certain amount is 
    appropriated, then the Secretary shall reserve part of that for 
    another purpose. It does not prohibit the Congress from making the 
    appropriation. . . .
        The Chairman: The Chair is prepared to rule.
        The gentleman from New York (Mr. Biaggi) makes a point of order 
    that the language on page 34, line 6, sets aside for national 
    grants or contracts a figure which is in excess of that specified 
    in the law as being permissible for national grants or contracts.
        Under the precedents it is not in order in a general 
    appropriation bill to direct that certain funds therein shall be 
    distributed without regard to the provisions of the authorizing 
    legislation.
        The Chair is of the opinion that the law cited by the gentleman 
    from New York (42 U.S.C. 3056d) is inconsistent with this 
    appropriation allocation. This language has the effect of 
    contravening the distribution formula on that law. The Chair 
    upholds the point of order.

Commodity Credit Corporation; Directing Minimum Spending

Sec. 36.19 A paragraph in a general appropriation bill directing that 
    not less than a specified sum be available for a certain purpose 
    was ruled out as legislation in violation of Rule XXI clause 2, 
    constituting a direction to spend a minimum amount, rather than a 
    negative limitation.

    On July 29, 1982,(15) during consideration in the 
Committee of the Whole of the bill H.R. 6863 (supplemental 
appropriations, fiscal 1982), a point of order was sustained against 
the following provision:
---------------------------------------------------------------------------
15. 128 Cong. Rec. 18623, 97th Cong. 2d Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

             As authorized by section 301 of Public Law 95-279, 
        $5,000,000,000 shall be available to the Commodity Credit 
        Corporation for necessary expenses in carrying out its 
        authorized programs, to remain available without regard to 
        fiscal year limitations: Provided, That not less than 
        $500,000,000 of this amount shall be available for export 
        credit loans as authorized by the Charter of the Commodity 
        Credit Corporation and the export authorities conferred upon 
        the Corporation by the Corporation's charter shall be 
        controlling without restriction. . . .

        Mr. [Silvio O.] Conte [of Massachusetts]: Mr. Chairman, I raise 
    a point of order on that section. . . .
        On line 10, not less than $500 million of this amount shall be 
    available for export credit loans, and so forth, is forcing the 
    agency to spend a minimal amount. . . .
        Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, this is 
    simply an earmarking of a given amount that is appropriated in the 
    bill, and it is within the rule.
        Mr. Chairman, this goes back to the charter of the Corporation, 
    the Com

[[Page 5858]]

    modity Credit Corporation. That being true under that charter, it 
    has authority to do this, and we are just directing that it use the 
    authority that already exists. So, it is a directive for the proper 
    use of funds in line with the authorization which is granted in the 
    charter of the Commodity Credit Corporation.
        Mr. Conte: The gentleman should have worded his language as 
    ``not to exceed $500 million.'' Furthermore, in line 13, ``. . . 
    and the export authorities conferred upon the Corporation by the 
    Corporation's charter shall be controlling without restriction.'' 
    That requires a positive act by the agency, and therefore a point 
    of order lies against it.
        Mr. Whitten: I present the statement of the section that makes 
    the authorization to which this applies. It appears in title 15, on 
    page 1203, and is section 1692 where it first appears.

            In the fulfillment of its purposes and in carrying out its 
        annual budget programs submitted to and approved by the 
        Congress pursuant to the Government Corporation Control Act [31 
        U.S.C. 841 et seq.], the Corporation is authorized to use its 
        general powers only to--
            (a) Support the prices of agricultural commodities through 
        loans, purchases, payments and other operations.
            (b) Make available materials and facilities required in 
        connection with the production and marketing of agricultural 
        commodities.
            (c) Procure agricultural commodities for sale to other 
        Government agencies, foreign governments and domestic, foreign, 
        or international relief or rehabilitation agencies, and to meet 
        domestic requirements.
            (d) Remove and dispose of or aid in the removal or 
        disposition of surplus agricultural commodities.
            (e) Increase the domestic consumption of agricultural 
        commodities by expanding or aiding in the expansion of domestic 
        markets or by developing or aiding in the development of new 
        and additional markets, marketing facilities, and uses for such 
        commodities.
            (f) Export or cause to be exported, or aid in the 
        development of foreign markets for agricultural commodities.

        That being the authority they have, it is simply a matter of 
    advising what to do within the authority already granted.
        The Chairman: (16) The Chair is ready to rule.
---------------------------------------------------------------------------
16. George E. Brown, Jr. (Calif.).
---------------------------------------------------------------------------

        The Chair has heard the point of order and listened to the 
    arguments on both sides. It is the Chair's intention to sustain the 
    point of order on the grounds that this is not a negative 
    limitation on an expenditure, but is a legislative direction to the 
    agency involved.

Transferring Defense Funds for Local Use

Sec. 36.20 A paragraph in a general appropriation bill transferring 
    available funds from a department to another department and 
    directing the use to which those funds must be put was conceded and 
    held to be legislation in violation of Rule XXI clause 2 as well as 
    a reappropriation violating Rule XXI clause 6.

[[Page 5859]]

    On Dec. 8, 1982,(17) during consideration in the 
Committee of the Whole of the Department of Defense appropriation bill, 
a point of order was sustained to a portion of that bill, as follows:
---------------------------------------------------------------------------
17. 128 Cong. Rec. 29449, 29450, 97th Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [William] Nichols [of Alabama]: Mr. Chairman, I have a 
    point of order.
        The portion of the bill to which the point of order relates is 
    as follows:

            Sec. 793. Of the funds available to the Department of 
        Defense, $200,000 shall be transferred to the Department of 
        Education which shall grant such sum to the Board of Education 
        of the Highland Falls-Fort Montgomery, New York, central school 
        district. The funds transferred by this section shall be in 
        addition to any assistance to which the Board may be entitled 
        under subchapter 1, chapter 13 of Title 20 United States Code. 
        . . .

        . . . I make a point of order against section 793, which 
    provides appropriations without authorization, and constitutes 
    legislation on an appropriation bill, which I believe to be in 
    violation of clause 2 of rule XXI. . . .
        Mr. [Joseph P.] Addabbo [of New York]: . . . Mr. Chairman, the 
    section is subject to a point of order, but this is a special case. 
    These are children of men and women at West Point who are attending 
    the public schools. If these funds are not allocated, the school 
    will close and there will be no school for these young people to 
    attend. . . .
        The Chairman Pro Tempore: (18) The gentleman insists 
    on his point of order, and the Chair is ready to rule.
---------------------------------------------------------------------------
18. Don Bailey (Pa.).
---------------------------------------------------------------------------

        The Chair will have to rule that, for the reasons conceded, the 
    point of order to section 793 as stated by the gentleman from 
    Alabama (Mr. Nichols) is sustained.

Indian Education; Mandating Expenditures Where Law Grants Discretion

Sec. 36.21 To a paragraph of a general appropriation bill containing 
    funds for the operation of Indian programs, an amendment providing 
    that Indian tribes shall receive at least 90 percent of the amount 
    under an educational service contract for the ensuing fiscal year 
    as was received under the existing contract (thereby mandating 
    expenditures) was ruled out as legislation in violation of Rule XXI 
    clause 2, where it was shown that existing law permitted the 
    cancellation of such contracts upon a finding of unsatisfactory 
    performance.

    On June 25, 1976,(19) it was held that, where existing 
law confers discretionary authority upon a federal official to cancel 
contracts, an amendment to a general appropriation bill requiring the 
expenditure of a certain amount

[[Page 5860]]

 under those contracts (a ``hold-harmless'' provision) is legislation 
and subject to a point of order. On that day, during consideration in 
the Committee of the Whole of the Department of the Interior 
appropriation bill (H.R. 14231), a point of order was sustained against 
the following amendment:
---------------------------------------------------------------------------
19. 122 Cong. Rec. 20557, 94th Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [William A.] Steiger of Wisconsin: Mr. Chairman, I offer an 
    amendment.
        (The portion of the bill to which the amendment relates is as 
    follows:)

            For expenses necessary to provide education and welfare 
        services for Indians, either directly or in cooperation with 
        States and other organizations, including payment (in advance 
        or from date of admission), of care, tuition, assistance, and 
        other expenses of Indians in boarding homes, institutions, or 
        schools . . . and for the general administration of the Bureau 
        of Indian Affairs, including such expenses in field offices, 
        $602,610,000, of which not to exceed $32,952,000 for assistance 
        to public schools shall remain available for obligation until 
        September 30, 1978; and includes expenses necessary to carry 
        out the provisions of sections 8 and 19(a) of Public Law 93-
        531, $2,040,000 to remain available until expended, of which 
        not more than $250,000 shall be available for payments pursuant 
        to section 8(e) of said Act: Provided, That the Secretary of 
        the Interior is directed, upon the request of any tribe, to 
        enter into a contract or contracts with any tribal organization 
        of any such tribe for the provision of law enforcement, if such 
        contract proposal meets the criteria established by Public Law 
        93-638.

        The Clerk read as follows:

            Amendment offered by Mr. Steiger of Wisconsin: Page 18, 
        line 1, after ``1978'' insert: ``(Provided, however, That no 
        Indian tribe, tribal organization, or State education agency 
        having a contract for educational services with the Secretary 
        of the Interior under title I of the Indian Self-Determination 
        and Education Assistance Act shall receive an amount under such 
        contract during the fiscal year ending September 30, 1977, 
        which is less than 90 per centum of the amount received under 
        such contract during the fiscal year ending June 30, 1976, and 
        the transitional quarter ending September 30, 1976).''

        Mr. [Sidney R.] Yates [of Illinois]: . . . Mr. Chairman, I 
    raise a point of order against the amendment offered by the 
    gentleman of Wisconsin. Mr. Chairman, Mr. Steiger's amendment 
    requires the Secretary of the Interior to enter into contracts in 
    fiscal year 1977 for educational services which are not less than 
    90 percent of the amount received under contract in fiscal year 
    1976. This amendment changes existing law and is legislation on an 
    appropriation bill.

        Section 109 of title I of Public Law 93-638, the Indian Self 
    Determination and Education Assistance Act allows the Secretary of 
    Interior to cancel contracts when he determines that the Tribal 
    organization's performance is not satisfactory. This amendment 
    precludes the Secretary from cancelling any fiscal year 1976 
    contract and states they must be funded in fiscal year 1977 at not 
    less than 90 percent of the fiscal year 1976 level. . . .
        Mr. Steiger of Wisconsin: . . . Mr. Chairman, the amendment is 
    nothing more than a proviso which would restrict what would happen 
    under the

[[Page 5861]]

    Johnson-O'Malley Act. It is similar in concept and in language to a 
    provision that was in last year's appropriation bill, where a hold-
    harmless provision was, in fact, provided for very similar to this 
    provision.
         It does seem to me that when we attempt, as this does, simply 
    to restrict within the framework of the Johnson-O'Malley Act and 
    the framework of the funds under this bill, that it is not, in 
    fact, legislation. It does not create any additional responsibility 
    for the Bureau of Indian Affairs and is simply a clarification of 
    what could happen when we go down this road. . . .
        The Chairman: (20) The Chair is prepared to rule.
---------------------------------------------------------------------------
20. Walter Flowers (Ala.).
---------------------------------------------------------------------------

        The point of order made by the gentleman from Illinois (Mr. 
    Yates) that the amendment constitutes legislation on an 
    appropriation bill appears to be well taken. The Chair has examined 
    section 109 of Public Law 93-638.
        The amendment definitely does not amount to a limitation of 
    funds in the pending bill. It is legislation on an appropriation 
    bill. The fact that it appeared in a prior appropriation act would 
    not protect the amendment at this time . . . and the Chair must 
    sustain the point of order.

Elementary Education; ``Hold Harmless'' Provision Mandating Expenditure 
    Level

Sec. 36.22 A ``hold harmless'' proviso in the education division 
    appropriation bill, the effect of which was to prevent states from 
    receiving less in the next fiscal year than they had received in 
    the current fiscal year, there being no similar provision in the 
    authorizing legislation, was conceded to be legislation and ruled 
    out.

    On Apr. 16, 1975,(1) language in a general appropriation 
bill providing that grants to be paid to states for certain elementary 
and secondary school aid during fiscal 1976 shall not be less than 
amounts available for that purpose in the preceding fiscal year was 
conceded to change the ratable reduction formula in existing law and 
was ruled out as legislation in violation of Rule XXI clause 
2.(2) The provision in question and point of order were as 
follows:
---------------------------------------------------------------------------
 1. 121 Cong. Rec. 10357, 94th Cong. 1st Sess.
 2. Such language, in effect, mandates expenditures and is thus subject 
        to a point of order. See also Deschler's Procedure, Ch. 26, 
        Sec. Sec. 16.4, 16.5.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Provided further, That the amount made available to each 
        State from the sum heretofore appropriated for the fiscal year 
        1976 or from the sum appropriated herein for the fiscal year 
        1977 for title IV, part C of the Elementary and Secondary 
        Education Act shall not be less than the amount made available 
        for comparable purposes for fiscal year 1975.

        Mr. [Joseph P.] Addabbo [of New York]: Mr. Chairman, I raise a 
    point of

[[Page 5862]]

    order that the language as it appears on page 3, line 1, through 
    line 6, is legislation on an appropriation bill. . . .
        Mr. [Daniel J.] Flood [of Pennsylvania]: . . . This is what is 
    sometimes referred to as the ``hold harmless'' provision, and the 
    effect, of course, of this language is simply to prevent the 
    reductions in State grants from last year. I will make that very 
    clear. I will say the formula for making these distributions will 
    certainly change under that new consolidated program enacted last 
    year, and there are about 20 States now that will receive less 
    under the so-called new consolidated program than they received 
    under the previous program.
        The language in the bill was an attempt to remedy that very 
    situation. This is the effect of the language.
        Of course, unfortunately, under title IV, part C, of the 
    Elementary and Secondary Education Act it does not specifically 
    authorize a ``hold harmless'' provision. We will have to concede 
    the point of order, but this is just so the Members will know.
        The Chairman: (3) The gentleman from Pennsylvania 
    concedes the point of order, and the Chair sustains the point of 
    order. Therefore, the language appearing on page 3, lines 1 through 
    6, is stricken from the bill.
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 3. James C. Wright, Jr. (Tex.).
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