[Deschler's Precedents, Volume 8, Chapter 26]
[Chapter 26. Unauthorized Appropriations; Legislation on Appropriation Bills]
[C. Provisions as "Changing Existing Law," Generally]
[Â§ 23. Incorporating or Restating Existing Law]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 5626-5658]
 
                               CHAPTER 26
 
    Unauthorized Appropriations; Legislation on Appropriation Bills
 
        C. PROVISIONS AS ``CHANGING EXISTING LAW,'' GENERALLY
 
Sec. 23. Incorporating or Restating Existing Law

Reference as Merely Descriptive

Sec. 23.1 It is in order in a general appropriation bill to include 
    language descriptive of authority provided in law for the operation 
    of government corporations and agencies funded in the bill so long 
    as the description is precise and does not change that authority in 
    any respect.

    On June 15, 1973,(11) during consideration in the 
Committee of the Whole of a general appropriation bill (H.R. 8619), a 
point of order was raised against the following provision:
---------------------------------------------------------------------------
11. 119 Cong. Rec. 19843, 19844, 93d Cong. 1st Sess.
---------------------------------------------------------------------------

                                Corporations

        The following corporations and agencies are hereby authorized 
    to make such expenditures, within the limits of funds and borrowing 
    authority available to each such corporation or agency and in 
    accord with law, and to make such contracts and commitments without 
    regard to fiscal year limitations as provided by section 104 of the 
    Government Corporation Control Act, as amended, as may be necessary 
    in carrying out the programs set forth in the budget for the 
    current fiscal year for such corporation or agency, except as 
    hereinafter provided:
        Mr. [Charles A.] Vanik [of Ohio]: Mr. Chairman, I make a point 
    of order against the language found in line 13, through line 22, on 
    page 20, on the basis that it is legislation in an appropriation 
    bill.
        The Chairman: (12) The gentleman from Ohio (Mr. 
    Vanik) makes a point of order against the language found on page 
    20, line 13 through line 22.
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12. James C. Wright, Jr. (Tex.).
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        Does the gentleman from Ohio wish to be heard?
        Mr. Vanik: Mr. Chairman, it is legislation on an appropriation 
    bill. It clearly says, ``The following corporations,'' meaning the 
    Federal Crop Insurance Corporation and the Commodity Credit 
    Corporation, ``are authorized to make expenditures.''
        This is the work of the legislative committee, and I contend 
    that this is legislation on an appropriation bill and that this 
    ought to be handled by the legislative committee rather than made a 
    part of the appropriation bill.
        The Chairman: Does the gentleman from Mississippi (Mr. 
    Whitten), desire to be heard?
        Mr. [Jamie L.] Whitten: Mr. Chairman, I rise to make the point 
    that the

[[Page 5627]]

    point of order should not lie. We have language in the original act 
    to make this authorization, and by reason of repeating it in this 
    act, that does not change the basic law. It is already authorized.
        In this situation the committee is setting a ceiling rather 
    than creating an authority. While we use the same words and repeat 
    the same words, the committee has, in effect, set a ceiling, so I 
    submit that it is not subject to a point of order, because it 
    merely repeats the law which is already authorized.
        The Chairman: The Chair has gone to the original source--the 
    Government Corporation Control Act--to which reference is made on 
    page 20 in this appropriation bill.
        The Chair discovers that the budget programs transmitted by the 
    President to the Congress under this act shall be considered and 
    legislation shall be enacted making necessary appropriations as may 
    be authorized by law for expenditures of such corporations.
        Clearly there is no question as to the right of the Congress to 
    include in this annual appropriation bill funds for these 
    Government corporations, several of which are included in the bill.
        It appears to the Chair that this is descriptive or 
    introductory language only and that the language does not 
    constitute change in existing law. Therefore it is in order, and 
    for those reasons the Chair overrules the point of order.

Descriptive Language Not Derived From Existing Law

Sec. 23.2 An amendment proposing to insert the words ``known as `Rankin 
    Dam' '' following an appropriation for Pickwick Landing Dam was 
    held to be legislation and not in order on an appropriation bill.

    On May 8, 1936,(13) during consideration in the 
Committee of the Whole of a deficiency appropriation bill (H.R. 12624), 
a point of order was raised against the following amendment:
---------------------------------------------------------------------------
13. 80 Cong. Rec. 6964-67, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Page 19, line 2, after the words ``Pickwick Landing Dam'', 
        insert the following: ``(known as `Rankin Dam').''

        Mr. [John J.] McSwain [of South Carolina]: Mr. Chairman, I make 
    a point of order on the amendment that it is legislation on an 
    appropriation bill. It is evidently an attempt to change the name 
    and call it ``Rankin Dam.'' It is in the teeth of legislation that 
    has been attempted time and time again. There are bills before the 
    Committee on Military Affairs to change the name of this dam to 
    ``Rankin Dam.''
        Mr. [Harold] Knutson [of Minnesota]: I should like to ask the 
    gentleman if it is not customary to wait until the man is dead 
    before they name a dam for him?
        Mr. McSwain: Yes; it is.
        The Chairman: (14) Does the gentleman from 
    Mississippi wish to be heard on the point of order?
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14. John W. McCormack (Mass.).

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[[Page 5628]]

        Mr. [Clarence] Cannon of Missouri: Mr. Chairman, if the Chair 
    will permit.
        The Chairman: The Chair recognizes the gentleman from Missouri.
        Mr. Cannon of Missouri: Mr. Chairman, this amendment is not 
    legislation. It is language merely descriptive, and such amendments 
    have been repeatedly held not to be legislation.
        I recall two decisions on this point. They were made by one of 
    the greatest parliamentarians who has served in the House, James R. 
    Mann, of Illinois.
        The first was made in 1905 when an amendment was offered, I 
    think, to the Naval bill.
        The language provided that ships or armament should be of 
    ``native manufacture.''. . . Mr. James R. Mann, of Illinois, held 
    that those words were merely descriptive and that it was not 
    legislation.
        Mr. [Bertrand H.] Snell [of New York]: Mr. Chairman, will the 
    gentleman yield?
        Mr. Cannon of Missouri: I yield with pleasure to the 
    distinguished leader on the other side of the House.
        Mr. Snell: If the words are merely descriptive, why will they 
    have the effect of changing the name of the dam?
        Mr. Cannon of Missouri: They do not change the name of the dam. 
    It is not proposed to change the name of the dam.
        Mr. Snell: But is not that the intention? I call it 
    legislation. Is not that the intention of the amendment?
        Mr. Cannon of Missouri: The gentleman from New York, being one 
    of the ablest parliamentarians in the House, knows that the 
    Chairman of the Committee of the Whole may not speculate as to the 
    intention of an amendment. He must predicate his decision on the 
    amendment before him in the language in which it is written. He 
    cannot go back of what is on the face of it to surmise what is the 
    purpose of a Member in offering an amendment. This amendment merely 
    further describes the Pickwick Landing Dam; it does not propose a 
    change in the name; it merely adds the descriptive language ``known 
    as the Rankin Dam.''. . .
        The Chairman: The Chair is prepared to rule. The Chair entirely 
    agrees with the gentleman from Missouri [Mr. Cannon], with 
    reference to the use of descriptive words. Therefore, the question 
    in the mind of the present occupant of the chair is whether the 
    amendment is descriptive or whether it constitutes legislation. 
    Without regard to whether or not it brings about a change in the 
    name of the dam from ``Pickwick Landing Dam'' to ``Rankin Dam'', it 
    is the opinion of the Chair, with profound respect for the opinion 
    of the gentleman from Missouri, one of the outstanding 
    parliamentarians of all time, that the amendment does not 
    constitute descriptive language; that it constitutes legislation It 
    is an addition to the language used in this bill. The Chair would 
    rule the same whether or not the legislation referred to by the 
    gentleman from South Carolina [Mr. McSwain] contained the words 
    ``Pickwick Landing Dam'' or not, because that name is included in 
    the bill now before the House.
        Profoundly respecting the views of the gentleman from Missouri, 
    and with considerable hesitation in disagreeing with him, it is the 
    opinion of the Chair that the point of order is well taken, and the 
    Chair therefore sustains the point of order.

[[Page 5629]]

Presumption of New Legislative Effect--Authority to Enter Into 
    Contracts

Sec. 23.3 Although under existing law it may be in order to appropriate 
    money for entering into contracts it is not in order to grant 
    authority to enter into contracts to carry out the provisions of a 
    legislative act.

    On Jan. 18, 1940,(15) during consideration in the 
Committee of the Whole of the independent offices appropriation bill 
(H.R. 7922), a point of order was raised against the following 
provision:
---------------------------------------------------------------------------
15. 86 Cong. Rec. 508, 509, 76th Cong. 3d Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            In addition to the contract authorizations of $115,000,000 
        contained in the Third Deficiency Appropriation Act, fiscal 
        year 1937, and $230,000,000 in the Independent Offices 
        Appropriation Act, 1940, the Commission is authorized to enter 
        into contract for further carrying out the provisions of the 
        Merchant Marine Act, 1936, as amended, in an amount not to 
        exceed $150,000,000.

        Mr. [John] Taber [of New York]: Mr. Chairman, I make the point 
    of order against the paragraph on the ground that it is legislation 
    on an appropriation bill. I refer to the paragraph beginning in 
    line 22, page 71, and ending in line 3, page 72.
        Mr. [Schuyler Otis] Bland [of Virginia]: Mr. Chairman, I desire 
    to be heard upon the point of order. . . .
        Mr. Taber: Mr. Chairman, there is something to say on the point 
    of order. Almost every one of the sections that has been read 
    specifically says ``out of available funds.'' The general situation 
    is that these contracts cannot be entered into without specific 
    authority, and those things are not provided for in the general 
    legislation.
        The Chairman: (16) The Chair is ready to rule.
---------------------------------------------------------------------------
16. Lindsay C. Warren (N.C.).
---------------------------------------------------------------------------

        The gentleman from New York [Mr. Taber] makes the point of 
    order that the paragraph now under consideration is legislation on 
    an appropriation bill. Of course, it is well known that the United 
    States Maritime Commission has authority under the law to enter 
    into contracts. Assuming that to be true, what would be the purpose 
    in that Commission having authority under an appropriation bill to 
    enter into contracts, unless it was for some new purpose?
        An almost similar proposition of this kind came up on the 
    second deficiency bill on April 28, 1937, at which time the 
    Committee of the Whole was presided over by Mr. Vinson of Kentucky, 
    when an amendment was offered dealing with the Tennessee Valley 
    Authority. The Chair, at that time, construed it to be legislation 
    on an appropriation bill. The present occupant of the chair so 
    construes it, and sustains the point of order.

    Parliamentarian's Note: Pursuant to section 401(a) of the 
Congressional Budget Act of 1974 (Pub. L. No. 93-344) which prohibits 
the inclusion of new contract spending or borrowing au

[[Page 5630]]

thority in legislative bills unless such authority is limited to the 
extent or in amounts provided in appropriation acts, the inclusion of 
proper limiting language in a general appropriation bill, if 
specfically permitted by law, would not render that language subject to 
a point of order under Rule XXI clause 2, since it would no longer 
``change existing law.''

-- Incorporating or Mandating Full Funding Levels

Sec. 23.4 Language in a general appropriation bill requiring that the 
    mandatory funding levels prescribed by existing law shall be 
    effective during the fiscal year was ruled out as legislation, in 
    violation of Rule XXI clause 2, on the theory that if the language 
    were an exact restatement of the law it was unnecessary and that 
    its inclusion in the appropriation act indicated that it was 
    presumed to have a legislative effect beyond that in existing law.

    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. 15931), a point of 
order was raised against the following provision:
---------------------------------------------------------------------------
17. 116 Cong. Rec. 4019, 91st Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [Neal] Smith of Iowa: Mr. Chairman, I make a point of order 
    against the language on page 57, lines 9 through 16, which reads as 
    follows:

            Provided further, That those provisions of the Economic 
        Opportunity Amendments of 1967 and 1969 that set mandatory 
        funding levels, including newly authorized programs for 
        alcoholic counseling and recovery and for drug rehabilitation, 
        shall be effective during the fiscal year ending June 30, 1970: 
        Provided further, That of the sums appropriated not less than 
        $22,000,000 shall be used for the family planning program.

        Mr. Chairman, I make the point of order on the ground that it 
    is legislation on an appropriation bill. . .
        The Chairman: (18) Does the gentleman from Michigan 
    seek recognition on this point of order?
---------------------------------------------------------------------------
18. Chet Holifield (Calif.).
---------------------------------------------------------------------------

        Mr. [James G.] O'Hara [of Michigan]: I do, Mr. Chairman.
        Mr. Chairman, it seems to me the amendment simply restates 
    existing law in the authorizing legislation, and if that is indeed 
    the case, I do not think it is subject to a point of order.
        The Chairman: The Chair will say that if this restates existing 
    law, there is no point in its being in the bill, and the fact that 
    it is in the bill on its face would indicate there must be 
    legislation in it in addition to that contained in existing law. 
    The Chair, therefore, sustains the point of order.

[[Page 5631]]

-- Granting Authorization for Project

Sec. 23.5 Language in an appropriation bill authorizing the Director of 
    Selective Service to destroy records accumulated under the 
    Selective Training and Service Act was held to be legislation and 
    not in order.

    On Mar. 30, 1955,(19) during consideration in the 
Committee of the Whole of the independent offices appropriation bill 
(H.R. 5240), a point of order was raised against the following 
provision:
---------------------------------------------------------------------------
19. 101 Cong. Rec. 4070, 84th Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Appropriations for the Selective Service System may be used 
        for the destruction of records accumulated under the Selective 
        Training and Service Act of 1940, as amended, which are hereby 
        authorized to be destroyed by the Director of Selective Service 
        after compliance with the procedures for the destruction of 
        records prescribed pursuant to the Records Disposal Act of 
        1943, as amended (44 U.S.C. 366-380): Provided, That no records 
        may be transferred to any other agency without the approval of 
        the Director of Selective Service.

        Mr. [Clare E.] Hoffman of Michigan: Mr. Chairman, I make the 
    point of order that the first 7 words in line 18, page 27, ``which 
    are hereby authorized to be destroyed'' is legislation on an 
    appropriation bill, because it authorizes the Director to destroy 
    records.
        The Chairman: (20) That is the specific language to 
    which the gentleman makes his point of order?
---------------------------------------------------------------------------
20. Albert Rains (Ala.).
---------------------------------------------------------------------------

        Mr. Hoffman of Michigan: Yes.
        The Chairman: Does the gentleman from Texas [Mr. Thomas] desire 
    to be heard on this point of order?
        Mr. [Albert] Thomas: Mr. Chairman, we ask for the ruling of the 
    Chair. We doubt that this is legislation.
        The Chairman: The Chair is ready to rule. This is clearly 
    legislation on an appropriation bill.
        Mr. [John] Phillips [of California]: Mr. Chairman, may I be 
    heard very briefly on that? Apparently the Chair feels this is 
    legislation, but this follows the Records Disposal Act of 1943 Does 
    it become legislation if it is a repetition of a statute?
        The Chairman: Why is it necessary to have it if it is already 
    in the law? The Chair thinks it is clearly legislation and sustains 
    the point of order.

Language Either Legislation or Not Necessary

Sec. 23.6 Language in a general appropriation bill providing that funds 
    for the construction of Indian health facilities could be expended 
    ``through the Department of Interior at the option'' of the 
    Secretary of the Department of Health, Education, and Welfare was 
    held to be legislation and not in order.

[[Page 5632]]

    On Mar. 29, 1960,(1) during consideration in the 
Committee of the Whole of the Departments of Labor and Health, 
Education, and Welfare appropriation bill (H.R. 11390), a point of 
order was raised against the following provision:
---------------------------------------------------------------------------
 1. 106 Cong. Rec. 6863, 6864, 86th Cong. 2d Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

                    Construction of Indian Health Facilities

            For construction, major repair, improvement, and equipment 
        of health and related auxiliary facilities, including quarters 
        for personnel; preparation of plans, specifications, and 
        drawings; acquisition of sites; purchase and erection of 
        portable buildings; purchase of trailers; and provision of 
        domestic and community sanitation facilities for Indians; 
        $8,964,000, to remain available until expended: Provided, That 
        such expenditures may be made through the Department of the 
        Interior at the option of the Secretary of the Department of 
        Health, Education, and Welfare.

        Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I make the point of 
    order against the language on page 28, line 22, which reads 
    ``Provided, That such expenditures may be made through the 
    Department of the Interior at the option of the Secretary of the 
    Department of Health, Education, and Welfare' on the ground that 
    that, too, is legislation on an appropriation bill. . . .
        Mr. [Walter H.] Judd [of Minnesota]: Mr. Chairman, may I be 
    heard on the point of order?
        The Chairman: (2) The Chair will be pleased to hear 
    the gentleman from Minnesota on the point of order.
---------------------------------------------------------------------------
 2. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------

        Mr. Judd: Mr. Chairman, I am sorry we do not have here the text 
    of the law which transferred the medical care of our Indian 
    population to the Public Health Service. As the author of the 
    original bill, I am sure that it had language which authorized the 
    Public Health Service to carry on medical care for the Indians 
    through the Department of the Interior and its existing agencies 
    when that could be done to greater advantage and without greater 
    cost. Whether that language in the original bill was retained in 
    the final law, I do not recall, and we do not have the text of it 
    here.
        The Chairman: The Chair is ready to rule. . . .
        The Chair is of the opinion that the language is obviously 
    legislation on an appropriation bill and therefore sustains the 
    point of order; making the observation with respect to the 
    arguments raised by two of the gentlemen that if the language is in 
    existing law then it is not necessary in this bill.

Sec. 23.7 Language in an appropriation bill authorizing the Secretary 
    of the Navy to enter into contracts for new construction of 
    aircraft and equipment, including expansion of public or private 
    plants, was held to be legislation on an appropriation bill and not 
    in order.

    On Apr. 13, 1949,(3) during consideration in the 
Committee of the

[[Page 5633]]

Whole of the military establishment appropriation bill (H.R. 4146), a 
point of order was raised against the following provision:
---------------------------------------------------------------------------
 3. 95 Cong. Rec. 4521, 81st Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            For new construction and procurement of aircraft and 
        equipment, spare parts and accessories therefor, including 
        expansion of public plants or private plants (not to exceed 
        $500,000), and Government-owned equipment and installation 
        thereof in public or private plants, and for the employment of 
        personnel in the Bureau of Aeronautics necessary for the 
        purposes of this appropriation, to remain available until 
        expended, $523,070,000, of which $418,000,000 is for 
        liquidation of obligations incurred under authority heretofore 
        granted to enter into contracts for the foregoing purposes; and 
        in addition, the Secretary of the Navy is authorized to enter 
        into contracts for the purposes of this appropriation in an 
        amount not to exceed $576,546,000.

        Mr. [Frederic R.] Coudert [Jr., of New York]: Mr. Chairman, a 
    point of order.
        The Chairman: (4) The gentleman will state it.
---------------------------------------------------------------------------
 4. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------

        Mr. Coudert: Mr. Chairman, I reserve a point of order with 
    respect to the last three lines of that paragraph--lines 8, 9, and 
    10, on page 65, as legislation on an appropriation bill. . . . In 
    other words, Mr. Chairman, my point of order is to the following 
    language: ``and in addition, the Secretary of the Navy is 
    authorized to enter into contracts for the purposes of this 
    appropriation in an amount not to exceed $576,546,000.''
        The Chairman: Does the gentleman from Texas desire to be heard 
    on the point of order?
        Mr. [George H.] Mahon [of Texas]: Mr. Chairman, of course there 
    is authorization by law for the procurement and contracts of 
    procurement of munitions, armaments and airplanes. It seems to me 
    that there is ample justification for the provision contained in 
    this bill. I insist, Mr. Chairman, that the point of order is not 
    well taken.
        The Chairman: The Chair is ready to rule.
        The gentleman from New York makes the point of order to the 
    language appearing on page 65, line 8, after the word ``purposes'' 
    down to and including the figure on line 10 on the ground that it 
    is legislation on an appropriation bill. The Chair is of the 
    opinion that if in existing law the Secretary of the Navy were 
    authorized to enter into such contracts, this language in the bill 
    would not be necessary; if the Secretary of the Navy is without 
    that power, this language is legislation on an appropriation bill.
        The Chair sustains the point of order.

Restriction of Discretion

Sec. 23.8 Where existing law established priorities to be followed by 
    an executive official in the distribution of funds authorized 
    thereby (but did not explicitly preclude distribution of some funds 
    for lower priority projects), an amendment to an appropriation bill 
    requir

[[Page 5634]]

    ing that those appropriated funds shall be distributed in 
    accordance with such priorities may be regarded as constituting a 
    stronger mandate as to the use of those funds and as a modification 
    of the authorizing law, and therefore out of order.

    On June 15, 1972,(5) during consideration in the 
Committee of the Whole of the Departments of Labor and Health, 
Education, and Welfare appropriation bill, a point of order was raised 
against the following amendment:
---------------------------------------------------------------------------
 5. 118 Cong. Rec. 21131, 92d Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [Sidney R.] Yates [of Illinois]: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Yates: at 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 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;''

        Mr. [Daniel J.] Flood [of Pennsylvania]: Mr. Chairman, I make a 
    point of order to the amendment on the ground it is obviously 
    legislation on an appropriation bill. The amendment applies to a 
    specific provision of the act, and any time you do that, that is 
    patently, obviously, and clearly legislation upon an appropriation 
    bill.
        Mr. Yates: Mr. Chairman, I think the gentleman is indulging in 
    double talk. I do not quite understand what his point of order is. 
    This is a repetition of the statute itself and is therefore 
    completely clear.
        Mr. Flood: There is a deviation.
        Mr. Yates: There is not a deviation. It is an actual quotation.
        Mr. Flood: There was a slight change, which was ruled on by the 
    Chair in ruling on the point of order, and it is out of order for 
    that reason.
        The Chairman: (6) The Chair is ready to rule. The 
    language of the gentleman's amendment states that the Commissioner 
    shall give the highest priority to States and areas within the 
    States having the greatest need for the program under the act. But 
    the amendment goes further and also states that the funds in the 
    pending bill shall be distributed in accordance with the authority 
    contained in Section 703 of the act. While the statute states 
    priorities, the amendment is mandatory and directs the Commissioner 
    to follow those priorities. It thus goes beyond the law, is a 
    modification of existing law, and is, therefore, legislation.
---------------------------------------------------------------------------
 6. Chet Holifield (Calif.).
---------------------------------------------------------------------------

        Mr. Yates: Mr. Chairman, will the Chair indulge me and permit 
    me to read what the act states?
        The Chairman: The Chair has just read the act. The gentleman 
    may read it again.

[[Page 5635]]

        Mr. Yates: Here is what the act states. I read from section 
    703:

            In determining distribution of funds under this title, the 
        Commissioner shall give highest priority to States and areas 
        within States having the greatest need for programs under this 
        title. Such priority shall take into consideration the number 
        of children of limited English-speaking ability between the 
        ages of 3 and 18 in each state.

        I incorporated that language in my amendment, Mr. Chairman, and 
    I am not deviating from it. I am following the act and asking that 
    the funds be allocated in accordance with the authority of that 
    section
        The Chairman: The gentleman's language is different from the 
    language in the act although it is similar. There is a mandate in 
    the gentleman's language that the funds shall be distributed in 
    accordance with the priorities stated in the act, and the statute 
    only says the Commissioner shall give the highest priority to 
    States and areas within the States having the greatest need for 
    programs pursuant to this title. Therefore, the Chair finds that 
    the amendment carries a stronger mandate than that in the statute 
    and is, therefore, legislation on an appropriation bill.
        The Chair, therefore, sustains the point of order.

Sec. 23.9 To an appropriation for the purchase of reindeer, an 
    amendment limiting the purchase to an average price of $4 per head 
    was held to be a limitation restricting the availability of funds 
    and in order.

    On Mar. 15, 1939,(7) the Committee of the Whole was 
considering H.R. 4852, an Interior Department appropriation. The Clerk 
read as follows, and proceedings ensued as indicated below:
---------------------------------------------------------------------------
 7. 84 Cong. Rec. 2789, 2790, 76th Cong. 1st Sess.
---------------------------------------------------------------------------

        Reindeer industry, Alaska: For the purchase, in such manner as 
    the Secretary of the Interior shall deem advisable and without 
    regard to sections 3709 and 3744 of the Revised Statutes, reindeer, 
    abattoirs, cold-storage plants . . . and communication and other 
    equipment, owned by nonnatives in Alaska, as authorized by the act 
    of September 1, 1937 (50 Stat. 900), $820,000 . . . Provided, That 
    under this appropriation not exceeding an average of $4 per head 
    shall be paid for reindeer purchased from nonnative owners: 
    Provided further, That the foregoing limitation shall not apply to 
    the purchase of reindeer located on Nunivak Island.
        Mr. [John C.] Schafer of Wisconsin: Mr. Chairman, I make the 
    point of order against the paragraph on the ground that it is 
    legislation on an appropriation bill unauthorized by law. In fact, 
    the language clearly indicates that it repeals the specific 
    provisions of existing law as incorporated in sections 3709 and 
    3744 of the Revised Statutes.
        The Chairman: (8) Does the gentleman from Oklahoma 
    desire to be heard?
---------------------------------------------------------------------------
 8. Frank H. Buck (Calif.).
---------------------------------------------------------------------------

        Mr. [Jed] Johnson of Oklahoma: No; I concede the point of 
    order.

[[Page 5636]]

        The Chairman: The point of order is sustained.
        Mr. Johnson of Oklahoma: Mr. Chairman, I offer the following 
    amendment, which I send to the desk and ask to have read.
        The Clerk read as follows:

            Amendment offered by Mr. Johnson of Oklahoma: Page 60, line 
        23, insert a new paragraph, as follows:
            ``Reindeer industry, Alaska: For the purchase, in such 
        manner as the Secretary of the Interior shall deem advisable, 
        of reindeer . . . as authorized by the act of September 1, 1937 
        (50 Stat. 900), $820,000 . . . Provided, That under this 
        appropriation not exceeding an average of $4 per head shall be 
        paid for reindeer purchased from nonnative owners: Provided 
        further, That the foregoing limitation shall not apply to the 
        purchase of reindeer located on Nunivak Island.''

        Mr. Schafer of Wisconsin: Mr. Chairman, I make the point of 
    order against the amendment on the ground that it is legislation on 
    an appropriation bill, unauthorized by law, and it delegates to the 
    Department additional authority which it does not now have. . . .
        Mr. Johnson of Oklahoma: Mr. Chairman, I feel that it is 
    unnecessary to make an extended argument, as I am sure the Chair is 
    fully advised and ready to rule. Certainly there is no question but 
    that this item is clearly authorized by existing law. Authority 
    will be found in the act of September 1, 1937, Fiftieth Statutes, 
    page 900. It plainly authorizes an appropriation of $2,000,000. I 
    call the attention of the Chair to section 16 which reads as 
    follows:

            The sum of $2,000,000 is hereby authorized to be 
        appropriated for the use of the Secretary of the Interior in 
        carrying out the provisions of this act.

        Mr. [Harold] Knutson [of Minnesota]: What more authority do you 
    want? That is enough.
        Mr. [Albert E.] Carter [of California]: Mr. Chairman, I would 
    like to be heard on the point of order.
        The Chairman: The gentleman from California is recognized.
        Mr. Carter: The opening sentence of the amendment reads:

            For the purchase in such manner as the Secretary of the 
        Interior shall deem advisable.

        Now, certainly there is nothing in the statute that gives the 
    Secretary of the Interior that much discretion. In addition to 
    that, Mr. Chairman, I desire to call the attention of the Chair to 
    the proviso in the amendment which reads as the proviso in the 
    bill, which is clearly legislation. Therefore I say the point of 
    order must be sustained against the proposed amendment.
        The Chairman: The Chair is ready to rule. The act of September 
    1, 1937, on which the appropriation contained in this paragraph is 
    based, reads in part as follows:

            Sec. 2. The Secretary of the Interior is hereby authorized 
        and directed to acquire, in the name of the United States, by 
        purchase or other lawful means, including exercises of power of 
        eminent domain, for and on behalf of the Eskimos and other 
        natives of Alaska, reindeer, reindeer range, equipment, 
        abattoirs, cold-storage plants, warehouses and other property, 
        real or personal, the acquisition of which he determines to be 
        necessary to the effectuation of the purposes of this act.

        This seems to be a broad, all-inclusive grant of power. The 
    language used

[[Page 5637]]

    in the amendment offered by the gentleman from Oklahoma merely 
    restates, in slightly different words, the authorization contained 
    in the act of September 1, 1937.

        The proviso to which the gentleman from California [Mr. Carter] 
    refers appears to the Chair to be nothing more than a limitation, 
    in the strictest sense of the word.
        For these reasons the Chair overrules both points of order.

Sec. 23.10 Where existing law authorized the expenditure of funds for 
    the benefit and existence of Indians, under broad supervisory 
    powers given to the Secretary of the Interior, provisions in an 
    appropriation bill which imposed further conditions affecting both 
    the exercise of those powers and the use of funds were ruled out as 
    legislation.

    On May 14, 1937,(9) during consideration in the 
Committee of the Whole of the Interior Department appropriation bill 
(H.R. 6958), a point of order was raised against the following 
provision:
---------------------------------------------------------------------------
 9. 81 Cong. Rec. 4598, 4599, 75th Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            For the purpose of encouraging industry and self-support 
        among the Indians and to aid them in the culture of fruits, 
        grains, and other crops, $165,000, which sum may be used for 
        the purchase of seeds, animals, machinery, tools, implements, 
        and other equipment necessary, and for advances to Indians 
        having irrigable allotments to assist them in the development 
        and cultivation thereof, in the discretion of the Secretary of 
        the Interior, to enable Indians to become self-supporting: 
        Provided, That the expenditures for the purposes above set 
        forth shall be under conditions to be prescribed by the 
        Secretary of the Interior for repayment to the United States on 
        or before June 30, 1943, except in the case of loans on 
        irrigable lands for permanent improvement of said lands, in 
        which the period for repayment may run for not exceeding 20 
        years, in the discretion of the Secretary of the Interior: 
        Provided further, That not to exceed $25,000 of the amount 
        herein appropriated shall be expended on any one reservation or 
        for the benefit of any one tribe of Indians: Provided further, 
        That the Secretary of the Interior is hereby authorized, in his 
        discretion and under such rules and regulations as he may 
        prescribe, to make advances from this appropriation to old, 
        disabled, or indigent Indian allottees, for their support, to 
        remain a charge and lien against their lands until paid: 
        Provided further, That not to exceed $15,000 may be advanced to 
        worthy Indian youths to enable them to take educational 
        courses, including courses in nursing, home economics, 
        forestry, and other industrial subjects in colleges, 
        universities, or other institutions, and advances so made shall 
        be reimbursed in not to exceed 8 years, under such rules and 
        regulations as the Secretary of the Interior may prescribe.

        Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of 
    order against the paragraph beginning on page 26, line 4. The point 
    of order is that this is legislation on an appropria

[[Page 5638]]

    tion bill and it imposes discretionary duties upon the Secretary of 
    the Interior. The language at the bottom of the bill, beginning 
    with ``Provided further'', line 22, and the last proviso are 
    entirely the same. They provide that the Secretary of the Interior 
    shall make rules and regulations and there is no question but what 
    it imposes additional duties upon the Secretary of the Interior all 
    the way through.
        In lines 17 and 18 the terms of repayment are made subject to 
    the discretion of the Secretary of the Interior and in lines 9 and 
    10 it is subject to that same discretion. This is all on page 26. 
    The whole paragraph is subject to discretion and imposes duties 
    upon the Secretary.
        Mr. [Jed] Johnson of Oklahoma: Mr. Chairman, the Committee 
    feels that this provision is in order. It provides only a method by 
    which the appropriation might be expended. I have no further 
    comment to make.
        The Chairman: (10) The Chair would like to inquire 
    of the gentleman from Oklahoma as to the authority for the language 
    appearing in lines 1 and 2, page 27, which the Chair will quote:
---------------------------------------------------------------------------
10. Jere Cooper (Tenn.).
---------------------------------------------------------------------------

            To remain a charge and lien against their land until paid--

        Is there provision in some existing law creating a lien upon 
    these lands, to which this provision refers?
        Mr. Johnson of Oklahoma: I cannot say there is provision in 
    existing law. The only existing law would be the fact this has been 
    in the bill for several years and, of course, that is not 
    controlling.
        The Chairman: The Chair would like to inquire further of the 
    gentleman with reference to the language appearing in lines 7 and 
    8, page 27, reading as follows:
        And advances so made shall be reimbursed in not to exceed 8 
    years under such rules and regulations as the Secretary of the 
    Interior may prescribe.
        Will the gentleman advise the Chair as to any provision of 
    existing law upon which this language is based?
        Mr. Johnson of Oklahoma: Mr. Chairman, this is the exact 
    language that has been used for several years and the gentleman 
    from Oklahoma knows of no specific basis of law for it.
        The Chairman: The Chair is ready to rule.
        The gentleman from New York makes a point of order against the 
    entire paragraph beginning in line 4, page 26, extending down to 
    and including line 9, page 27. The gentleman from New York [Mr. 
    Taber] in making his point of order invited attention to certain 
    language appearing in lines 10 and 11, page 26, with reference to 
    the discretion of the Secretary of the Interior.
        The Chair has examined the act commonly referred to and known 
    as the Snyder Act and invites attention to section 13 of that act, 
    in which the following appears:

            Expenditures of appropriations by Bureau of Indian Affairs: 
        The Bureau of Indian Affairs, under the supervision of the 
        Secretary of the Interior, shall direct, supervise, and expend 
        such moneys as Congress may from time to time appropriate for 
        the benefit, care, and assistance of the Indians throughout the 
        United States for the following purposes: General support and 
        civilization, including education; for industrial assistance 
        and advancement and gen

[[Page 5639]]

        eral administration of Indian problems. Further for general and 
        incidental expenses in connection with the administration of 
        Indian affairs.

        It is the opinion of the Chair that the act to which attention 
    has been invited confers upon the Secretary of the Interior rather 
    broad discretionary authority. The Chair is of opinion that the 
    language to which the gentleman invited attention is not subject to 
    a point of order, but that the language to which the Chair invited 
    the attention of the gentleman from Oklahoma with reference to the 
    provisos does constitute legislation on an appropriation bill not 
    authorized by the rules of the House. It naturally follows that as 
    the point of order has to be sustained as to these two provisos, it 
    has to be sustained as to the entire paragraph. The Chair therefore 
    sustains the point of order made by the gentleman from New York.

Restatement of Law Applying to Other Funds

Sec. 23.11 Where the Foreign Assistance Act of 1961 contained a 
    prohibition against the furnishing of assistance to countries 
    supplying or shipping certain items to North Vietnam, a similar but 
    not identical provision in a general appropriation bill was ruled 
    out as legislation in violation of Rule XXI clause 2.

    On June 4, 1970,(11) during consideration in the 
Committee of the Whole of the foreign assistance appropriation bill 
(H.R. 17867), a point of order was raised against the following 
provision:
---------------------------------------------------------------------------
11. 116 Cong. Rec. 18406, 91st Cong. 2d Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Sec. 116. No assistance shall be furnished under the 
        Foreign Assistance Act of 1961, as amended, to any country that 
        sells, furnishes or permits any ships under its registry to 
        carry to North Vietnam any of the items mentioned in subsection 
        107(a) of this Act.

        Mr. [Peter H. B.] Frelinghuysen [Jr., of New Jersey]: Mr. 
    Chairman, I rise to make a point of order.
        The Chairman: (12) The gentleman will state his 
    point of order.
---------------------------------------------------------------------------
12. Hale Boggs (La.).
---------------------------------------------------------------------------

        Mr. Frelinghuysen: Mr. Chairman, I make the point of order 
    against section 116 in that it constitutes legislation in an 
    appropriation bill. I would like to add, furthermore, it is almost 
    word for word part of a prohibition which is already contained in 
    existing law, and that is section 620(n) of the Foreign Assistance 
    Act. The fact is the existing law is stronger and broader in its 
    restriction than the language in this appropriation bill.
        The Chairman: Does the gentleman from Louisiana desire to be 
    heard on the point of order?
        Mr. [Otto E.] Passman [of Louisiana]: Mr. Chairman, I ask for a 
    ruling on the point of order.
        The Chairman: The Chair is prepared to rule on the point of 
    order.
        The language is similar and almost like the language contained 
    in the Foreign Assistance Act of 1961. However, it is clearly 
    legislation on an appro

[[Page 5640]]

    priation bill, and the point of order is sustained.

Sense of Congress That Existing Law Should Apply

Sec. 23.12 Language in a foreign aid appropriation bill expressing the 
    sense of Congress in opposition to discrimination by foreign 
    nations on the basis of race or religion against American citizens 
    traveling abroad, and requiring negotiations with such nations to 
    be conducted in accordance with that congressional policy, was 
    conceded to be legislation in violation of Rule XXI clause 2.

    On June 4, 1970,(13) during consideration in the 
Committee of the Whole of the foreign assistance appropriation bill 
(H.R. 17867), a point of order was raised against the following 
provision:
---------------------------------------------------------------------------
13. 116 Cong. Rec. 18403, 91st Cong. 2d Sess.
---------------------------------------------------------------------------

        Sec. 106. It is the sense of Congress that any attempt by 
    foreign nations to create distinctions because of their race or 
    religion among American citizens in the granting of personal or 
    commercial access or any other rights otherwise available to United 
    States citizens generally is repugnant to our principles; and in 
    all negotiations between the United States and any foreign state 
    arising as a result of funds appropriated under this title these 
    principles shall be applied as the President may determine.
        Mr. [Peter H. B.] Frelinghuysen [Jr., of New Jersey]: Mr. 
    Chairman, I make a point of order against section 106, lines 17 
    through 25 on page 8 on the ground that it constitutes legislation 
    in an appropriation bill.
        Mr. Chairman, I would like to add further that the essential 
    wording of this section is already in existing law, and has been so 
    for many years. I refer to section 102 of the Foreign Assistance 
    Act. That section reads as follows:

            The Congress further declares that any distinction made by 
        foreign nations between American citizens because of race, 
        color or religion in the granting of, or in the exercise of 
        personal or other rights available to American citizens, is 
        repugnant to our principles.

        The Chairman: (14) Does the gentleman from Louisiana 
    (Mr. Passman) desire to be heard on the point of order?
---------------------------------------------------------------------------
14. Hale Boggs (La.).
---------------------------------------------------------------------------

        Mr. [Otto E.] Passman: Yes, Mr. Chairman; we concede the point 
    of order. . .
        The Chairman: The gentleman from Louisiana concedes the point 
    of order, and the Chair sustains the point of order.

Sec. 23.13 A provision in a general appropriation bill, restating, but 
    not in identical language, a declaration of the sense of Congress 
    on a matter of foreign policy [a

[[Page 5641]]

    declaration found originally in the Foreign Assistance Act of 
    1962], was held to be legislation and was ruled out on a point of 
    order.

    On Sept. 20, 1962,(15) during consideration in the 
Committee of the Whole of the foreign aid appropriation bill (H.R. 
13175), the following point of order was raised:
---------------------------------------------------------------------------
15. 108 Cong. Rec. 20181, 87th Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [Peter H. B.] Frelinghuysen [Jr., of New Jersey]: Mr. 
    Chairman, I make a point of order against section 112 on page 8.
        The language of that section is as follows:

            Sec. 112. It is the sense of Congress that in the 
        administration of these funds great attention and consideration 
        should be given to those nations which share the view of the 
        United States on the world crisis.

        The Chairman: (16) The gentleman will state the 
    point of order.
---------------------------------------------------------------------------
16. Wilbur D. Mills (Ark.)
---------------------------------------------------------------------------

        Mr. Frelinghuysen: Mr. Chairman, that language is already 
    embodied in the basic act (17) and is legislation on an 
    appropriation bill. . . .
---------------------------------------------------------------------------
17. See Public Law No. 87-565, Sec. 101, which stated in part: ``It is 
        the sense of Congress that in the administration of these funds 
        great attention and consideration should be given to those 
        countries which share the view of the United States on the 
        world crisis and which do not, as a result of United States 
        assistance, divert their own economic resources to military or 
        propaganda efforts, supported by the Soviet Union or Communist 
        China, and directed against the United States or against other 
        countries receiving aid under this Act.''
---------------------------------------------------------------------------

        Mr. [Otto E.] Passman [of Louisiana]: Mr. Chairman, I ask for a 
    ruling.
        The Chairman: The Chair sustains the point of order made by the 
    gentleman from New Jersey.

Limiting Discretion Bestowed by Law

Sec. 23.14 Language in a general appropriation bill providing that none 
    of the funds therein should be used unless certain procurement 
    contracts were awarded on a formally advertised basis to the lowest 
    responsible bidder was held to be legislation where existing law 
    provided an exception from such procedure.

    On June 28, 1961,(18) during consideration in the 
Committee of the Whole of the defense appropriation bill (H.R 7851), 
the following point of order was raised:
---------------------------------------------------------------------------
18. 107 Cong. Rec. 11502, 87th Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. [James E.] Van Zandt [of Pennsylvania]: Mr. Chairman, I 
    make a point of order against the legislation contained in lines 15 
    to 19 on page 38, reading as follows:

[[Page 5642]]

            That none of the funds appropriated in this act shall be 
        used except that, so far as practicable, all contracts shall be 
        awarded on a formally advertised competitive bid basis to the 
        lowest responsible bidder.

        The Chairman: (19) Does the gentleman from Texas 
    desire to be heard on the point of order?
---------------------------------------------------------------------------
19. Eugene J. Keogh (N.Y.)
---------------------------------------------------------------------------

        Mr. [George H.] Mahon [of Texas]: Mr. Chairman, the point of 
    order, as I understand, is against the following language:

            That none of the funds appropriated in this act shall be 
        used except that, so far as practicable, all contracts shall be 
        awarded on a formally advertised competitive bid basis to the 
        lowest responsible bidder.

        This is a provision in the act which has been, I believe, in 
    the act since about 1953, but there is a slight change in the 
    wording of the proviso this year in line 18.
        This language more or less repeats existing law. I refer to 
    chapter 137 under ``Procurement Generally,'' volume 10, United 
    States Code 2304(a):

            Purchases of and contracts for property or services covered 
        by this chapter shall be made by formal advertising. However, 
        the head of an agency may negotiate . . . if . . . (10) the 
        purchase or contract is for property or services for which it 
        is impracticable to obtain competition.

        So we call for the formally advertised bids wherever practical. 
    It seems to me this is a restatement of the law. It has a tendency 
    to reduce the funds in the bill, and I believe it is not subject to 
    a point of order.
        The Chairman: The Chair is prepared to rule.
        The gentleman from Pennsylvania [Mr. Van Zandt] makes a point 
    of order to the language appearing on page 38, lines 15 to 19 
    inclusive on the ground that it is legislation in an appropriation 
    act.
        The Chair has listened with attention to the gentleman from 
    Texas and would say to him that if this is a restatement of 
    existing law the language in this bill is not necessary. But in 
    line with the argument advanced by the gentleman from Texas, that 
    it is a restatement setting out existing law, in the opinion of the 
    Chair it imposes affirmative obligations on an executive branch of 
    the Government and is, therefore, legislation on an appropriation 
    act.
        The Chair sustains the point of order.

Restrictive Modification of Authority in Law; Rural Electrification

Sec. 23.15 Where existing law authorized the use of funds for the Rural 
    Electrification Administration for a certain purpose, a restriction 
    in an appropriation bill making funds therein for the REA available 
    ``only'' for that purpose was held a limitation as containing only 
    the language of existing law.

    On Mar. 24, 1944,(20) the Committee of the Whole was 
consid

[[Page 5643]]

ering H.R. 4443, an Agriculture Department appropriation bill. The 
Clerk read as follows:
---------------------------------------------------------------------------
20. 90 Cong. Rec. 3105-07, 78th Cong. 2d Sess.
---------------------------------------------------------------------------

        Amendment offered by Mr. [Lyle H.] Boren [of Oklahoma]: Page 
    78, line 5, add the following: ``Provided, That the moneys 
    appropriated or otherwise authorized under this caption (`Rural 
    Electrification Administration') and expended or loaned under the 
    authority conferred by section 4 of the act approved May 20, 1936, 
    shall be used only to finance the construction and operation of 
    generating plants, electric transmission and distribution lines, or 
    systems, for the furnishing of electric energy to persons in rural 
    areas who are not now receiving central station service: Provided 
    further, That none of the moneys appropriated or otherwise 
    authorized under this caption (`Rural Electrification 
    Administration') shall be used to finance the construction and 
    operation of generating plants, electric transmission and 
    distribution lines, or systems in any area of the United States 
    included within the boundaries of any city, village, or borough 
    having a population in excess of 1,500 inhabitants.''
        Mr. [William R.] Poage [of Texas]: Mr. Chairman, a point of 
    order.
        The Chairman: (21) The gentleman will state his 
    point of order.
---------------------------------------------------------------------------
21. William M. Whittington (Miss.).
---------------------------------------------------------------------------

        Mr. Poage: Mr. Chairman, I make the point of order that, rather 
    than being a limitation on the appropriation, this is a change in 
    the substantive law that authorized the Rural Electrification 
    Administration; and I call the attention of the Chair to a ruling 
    that was handed down on April 19, 1943, when substantially the same 
    amendment was offered, the only difference being that the word 
    ``exclusively'' has now been changed to ``only.'' I submit those 
    words have exactly the same meaning and that the ruling applied at 
    that time would be applicable at this time. . . .
        Mr. Boren: Mr. Chairman, I submit that the proposed amendment 
    merely reaffirms existing law. It does not change existing law. It 
    does not change existing law or the substantive law that created 
    the Rural Electrification Administration or that governs its 
    organization and I submit that the proposals are limiting to the 
    appropriation in that the sole purpose and object of the proposals 
    are to prevent the use of this particular money outside the 
    provisions of existing law. That is, that they cannot use the 
    particular money involved in the appropriation in line 5, page 78, 
    to buy out electrical systems in towns in excess of a population of 
    1,500.
        Mr. Chairman, to support my contention that this is existing 
    law I want to say that the language of the first proviso is lifted 
    directly from section 4 of the R.E.A. Act approved May 20, 1936, 
    section 4 of which reads as follows:

            Sec. 4. The Administrator is authorized and empowered, from 
        the sums hereinbefore authorized, to make loans to persons, 
        corporations, States, Territories, and subdivisions and 
        agencies thereof, municipalities, peoples, utility districts 
        and cooperatives, nonprofit, or limited-dividend associations 
        organized under the laws of any State or Territory of the 
        United States, for the purpose of financing the construction 
        and operation of generating plants, electric

[[Page 5644]]

        transmission and distribution lines or systems for the 
        furnishing of electric energy to persons in rural areas who are 
        not receiving central station service.

        That language is the language that is in the act of May 20, 
    1936, substantially word for word.
        The Chairman: If the Chair may interrupt the gentleman, if it 
    is existing law what is the necessity for it being in the 
    amendment?
        Mr. Boren: Mr. Chairman, the Chair anticipates the point of my 
    discussion in justifying the amendment. The reason is that so far 
    as appropriations are concerned, they have issued opinions down 
    there by a circuitous route and have managed to go ahead and buy 
    electrical systems in towns with a population in excess of 1,500. 
    They have done it in connection with other appropriations. So I 
    want to pick up this particular $20,000,000 and say that this 
    $20,000,000 shall not be expended in that illegal fashion.
        Mr. Chairman, the language of the second proviso is lifted 
    directly from section 13 of the R.E.A. Act approved May 20, 1936. 
    Section 13 reads as follows:

            Sec. 13. As used in this act the term ``rural area'' shall 
        be deemed to mean any area of the United States not included 
        within the boundaries of any city, village, or borough having a 
        population in excess of 1,500 inhabitants, and such term shall 
        be deemed to include the farm and nonfarm population thereof.

        Mr. Chairman, it so happens that I served on the committee 
    which created the R.E.A. and I was a member of the subcommittee 
    that created it. I have a thorough familiarity with the act and 
    with the amendments that have been made to the act since its 
    original creation. I know what was in the mind of the committee 
    when this organization was created. But in spite of that, they are 
    spending this money to buy electrical plants in towns with a 
    population as high as 10,000 people. I want to limit the use of 
    this appropriation so that they cannot buy out existing facilities 
    in cities having populations of ten or twenty thousand.
        Mr. Chairman, I submit that the point of order is not 
    substantiated by the facts in this case. First, this is a 
    limitation and, second, the language used has been lifted verbatim 
    from the substantive act creating this organization. . . .
        Mr. Poage: . . . The amendment states, as I understand it, that 
    this money shall be used only for these purposes. When you refer to 
    the existing law the word ``only'' is not in existing law. I wonder 
    if the gentleman will tell us whether the word ``only'' has been 
    inserted in the proposed amendment? . . .
        Mr. Boren: Mr. Chairman, just one final word in explanation of 
    my position. In the first instance, we inserted the word ``only'' 
    which is a limiting word only. They have been doing it not for this 
    purpose but for other purposes.
        The Chairman: Does the word ``only'' appear in the statute, in 
    response to the question asked by the gentleman from Texas [Mr. 
    Poage)?
        Mr. Boren: The word ``only'' does not appear in the statute 
    That is in the second proviso. Neither do the words ``shall not be 
    used for other purposes'' but I make the contention that is the 
    thing that makes it limiting. . . .

[[Page 5645]]

        Mr. [Francis H.] Case [of South Dakota]: Would the gentleman's 
    amendment expand the basic law and authorize expenditures for 
    anything not authorized in the basic law?
        Mr. Boren: It does not. It is solely limiting.
        Mr. Case: In the use of the word ``only,'' does that word 
    ``only'' limit the appropriation to expenditures for only a 
    particular purpose?
        Mr. Boren: It does not. It does not preclude any of the 
    purposes in the substantive law.
        Mr. Case: I wonder if the gentleman would explain this. My 
    understanding of a limitation is that it restricts the 
    appropriation to a portion of the original purposes. You cannot 
    expand an appropriation but you can restrict it. If the use of the 
    word ``only'' limits to only a certain part of the basic 
    appropriation, then it is a restriction and a limitation.
        Mr. Boren: My amendment does not in any iota expand or take in 
    any new purposes. It limits the practice that is going on.
        The reason I answered the gentleman as I did is, I am 
    unwilling, in my own judgment, to hold that the other practices 
    outside of this limitation are justified by law, but it does limit 
    them in some of the practices they are carrying on that they are 
    claiming come under the law. . . .
        The Chairman: The Chair is ready to rule.
        Reference has been made to similar amendments that have been 
    heretofore presented. It has also been stated that the language of 
    the amendment offered is identical with an amendment presented on 
    April 19, 1943, but an examination of the amendment offered at that 
    time will show that the language was considerably and materially 
    different than the language of the proposed amendment. Aside from 
    that, the Chair is more anxious to be correct than perhaps 
    consistent.
        Mr. Poage: Mr. Chairman, I do not want it to be understood that 
    I said that the wording of these amendments were identical.
        The Chairman: The Chair did not so state that the gentleman or 
    any other Member said that. That was brought to the attention of 
    the Chair a few minutes ago. As the Chair stated, he is more 
    interested in being correct than consistent.
        Inasmuch as it is conceded that the language of the first 
    proviso is the language of the substantive law except for the word 
    ``only,'' the first proviso is a limitation, and in view of the 
    fact the second proviso is also a limitation, the point of order is 
    overruled.

    Parliamentarian's Note: The ruling referred to by Mr. Poage, of 
Apr. 19, 1943, and the amendment that was ruled out as legislation, 
were as follows: (1)
---------------------------------------------------------------------------
 1. Under consideration was H.R. 2481, the Agriculture Department 
        appropriation bill of 1944. The Chairman on that occasion also 
        was William M. Whittington (Miss.)
---------------------------------------------------------------------------

        The Chairman: The Chair is ready to rule.
        The gentleman from Oklahoma offers an amendment to the 
    amendment offered by the gentleman from Mississippi [Mr. Rankin] in 
    the following words:

[[Page 5646]]

            Provided, That these loans shall be exclusively for the 
        purpose of financing the construction and operation of 
        generating plants, electric transmission and distribution lines 
        or systems for the furnishing of electric energy to persons in 
        rural areas who are not receiving central station service.

        The Chair is unable to see where there is any limitation in the 
    language used and concludes it is legislation, therefore sustains 
    the point of order.

Renegotiation Act Made Applicable to Contracts Under the Appropriation

Sec. 23.16 To the appropriation for the Tennessee Valley Authority, an 
    amendment proposing to make contracts entered into by the Authority 
    and by the Atomic Energy Commission subject to the Renegotiation 
    Act was held to be legislation on an appropriation bill and not in 
    order.

    On Dec. 15, 1950,(2) during consideration in the 
Committee of the Whole of a supplemental appropriation bill (H.R 9920), 
a point of order was raised against the following amendment, and 
proceedings ensued as indicated below:
---------------------------------------------------------------------------
 2. 96 Cong. Rec. 16672-74, 81st Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [Francis H.] Case of South Dakota: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Case of South Dakota: Page 11 
        after line 12, insert a new section, as follows:

                          ``Renegotiation of Contracts

            ``Sec. 602. (a) All negotiated contracts for procurement in 
        excess of $1,000 entered into during the current fiscal year by 
        or on behalf of the Atomic Energy Commission and the Tennessee 
        Valley Authority, and all subcontracts thereunder in excess of 
        $1,000, are hereby made subject to the Renegotiation Act of 
        1948 in the same manner and to the same extent as if such 
        contracts and subcontracts were required by such act to contain 
        the renegotiation article prescribed in subsection (a) of such 
        act. Each contract and subcontract made subject to the 
        Renegotiation Act of 1948 by this section shall contain an 
        article stating that it is subject to the Renegotiation Act of 
        1948. . . .''

        Mr. [Albert A.] Gore [of Tennessee]: . . . Mr. Chairman, the 
    amendment offered by the distinguished and able gentleman from 
    South Dakota, is a lengthy, complicated, and far-reaching one. . . 
    . It operates as an amendment of the renegotiation law. . . .
        The Chairman: (3) The gentleman from South Dakota 
    [Mr. Case] has offered an amendment which has been reported. The 
    gentleman from Tennessee [Mr. Gore] has made a point of order 
    against the amendment, on the ground that it contains legislation 
    on an appropriation bill.
---------------------------------------------------------------------------
 3. Jere Cooper (Tenn.).
---------------------------------------------------------------------------

        Mr. Case of South Dakota: Mr. Chairman, I concede the point of 
    order.
        The Chairman: The gentleman concedes the point of order, and 
    therefore the Chair sustains the point of order.

[[Page 5647]]

Exception From Limitation Applying Standard of Existing Law

Sec. 23.17 To a paragraph in a general appropriation bill denying use 
    of funds in the bill for direct assistance to several designated 
    countries, an amendment permitting availability of those funds for 
    assistance to some of those countries in accordance with the 
    requirements of section 116 of the Foreign Assistance Act (which 
    prohibits assistance under part I thereof to all countries engaging 
    in patterns of violations of internationally recognized human 
    rights unless such assistance will directly benefit the needy 
    people in such country) was held a proper exception from a 
    limitation which did not add legislation since the amendment would 
    allow assistance only pursuant to determinations already required 
    by existing law as to the qualifications of all recipient 
    countries.

    On Aug. 3, 1978,(4) during consideration in the 
Committee of the Whole of the foreign assistance appropriation bill 
(H.R. 12931), a point of order was raised against the following 
amendment:
---------------------------------------------------------------------------
 4. 124 Cong. Rec. 24249, 24250, 95th Cong. 2d Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Amendment offered by Mr. [Tom] Harkin [of Iowa]: Page 11, 
        strike out the period on line 17 and insert in lieu thereof'', 
        except that funds appropriated or made available pursuant to 
        this Act for assistance under part I of the Foreign Assistance 
        Act of 1961 (other than funds for the Economic Support Fund or 
        peacekeeping operations) may be provided to any country named 
        in this section (except the Socialist Republic of Vietnam) in 
        accordance with the requirements of section 116 of the Foreign 
        Assistance Act of 1961.''. . .

        Mr. [Clarence D.] Long of Maryland: Mr. Chairman, I do make a 
    point of order against the Harkin amendment. . . .
        The gentleman's amendment clearly would place substantial 
    additional new duties on officers of the Government. Mr. Chairman, 
    in chapter 26, section 11.1, of ``Deschler's Procedures,'' the 
    following is stated:

            But when an amendment, while curtailing certain uses of 
        funds carried in the bill, explicitly places new duties on 
        officers of the government or implicitly requires them to make 
        investigations, compile evidence, or make judgments and 
        determinations not otherwise required of them by law, then it 
        assumes the character of legislation and is subject to a point 
        of order.

        Mr. Chairman, the gentleman's amendment intends that aid should 
    be provided to certain countries if such assistance will directly 
    benefit the needy people in such countries. Several legislative 
    provisions currently exist that presently provide for such deter

[[Page 5648]]

    minations, but these provisions do not apply to all the funds 
    appropriated in this bill.

        In addition, the gentleman's amendment would require officials 
    to make judgments and determinations that they are not required to 
    make at the present time. We presently have no AID programs or AID 
    missions in any of these countries. In two of the countries we do 
    not have diplomatic relations, Vietnam and Cambodia. In one country 
    we have no U.S. Government representative, and that country is 
    Uganda. The gentleman's amendment would not only allow direct 
    assistance to flow to these countries, which is not now possible, 
    but also would require some U.S. Government official to determine 
    if the assistance is reaching the needy. This would require a U.S. 
    Government official to travel to these countries to make an onsite 
    inspection since there are no AID missions in any of these 
    countries and no U.S. Government representation present in three of 
    the countries. The gentleman's amendment definitely places 
    substantial additional duties on U.S. Government officials.
        Also current law prohibits any direct assistance to Vietnam, 
    Laos, Cambodia, Uganda, Mozambique, or Angola. The gentleman's 
    amendment would allow direct assistance to flow to these countries 
    if the assistance would benefit the needy people. This in effect 
    changes the existing law. The amendment is legislative in nature 
    and in violation of clause 2, rule XXI. . . .
        Mr. Harkin: Mr. Chairman, by the fact that I have included 
    section 116 of the Foreign Assistance Act of 1961, by that very 
    inclusion those four countries so named and listed are then put in 
    the category of being gross violators of human rights, and because 
    of the inclusion, then, of section 116, which I have laid out in my 
    amendment, there are no new duties imposed in my amendment--only 
    the requirements of existing law. . . .
        Mr. Long of Maryland: I would simply say that we do not have 
    missions in these countries, and the duties that would be required, 
    to find out whether needy people would get the money, would require 
    us to send people there. That clearly imposes duties on the 
    Government which are not implied in the current legislation.
        The Chairman: (5) The Chair is ready to rule.
---------------------------------------------------------------------------
 5. Abraham Kazen, Jr. (Tex.).
---------------------------------------------------------------------------

        According to the amendment, the only funds that the amendment 
    refers to are funds provided for in the bill, and the only 
    exception would be to the Socialist Republic of Vietnam; but funds 
    are to be provided in accordance with the requirements of law and 
    the law cited is, on its face, applicable to the countries covered 
    by the amendment; so the Chair does not see that there are any new 
    duties imposed on anyone by the amendment. Therefore, the Chair 
    respectfully overrules the point of order.

Restriction of Funds--But Requiring Finding of Intent Not Required by 
    Law

Sec. 23.18 An amendment to the District of Columbia appropriation bill 
    denying use of funds to grant business licenses to persons who 
    offer

[[Page 5649]]

    for sale in the course of business drug paraphernalia, as defined 
    in a Model Drug Paraphernalia Act which required findings of intent 
    that certain articles for sale be intended for use in drug 
    preparation or use, was ruled out as legislation requiring new 
    duties and judgments of government officials.

    On Sept. 22, 1981,(6) during consideration in the 
Committee of the Whole of the District of Columbia appropriation for 
fiscal year 1982 (H.R. 4522), a point of order against an amendment was 
sustained as follows:
---------------------------------------------------------------------------
 6. 127 Cong. Rec. 21576, 21577, 97th Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Amendment offered by Mr. [Charles E.] Bennett [of Florida]: 
        Page 20, after line 25, insert the following new section:
            Sec. 124. None of the funds appropriated in this Act may be 
        used to grant a business license to any person who, after the 
        date of enactment of this Act, offers drug paraphernalia (as 
        defined in the Model Drug Paraphernalia Act drafted by the 
        United States Department of Justice, August 1979) for sale in 
        the course of the business for which such license is required.

        Mr. [Julian C.] Dixon [of California]: Mr. Chairman, I make a 
    point of order that the amendment of the gentleman violates clause 
    2 of rule XXI of the House in that it would impose additional 
    duties on the District's licensing officials who have to either 
    inspect all places that are doing business to determine whether 
    they are selling such items; but probably more importantly, they 
    would have to determine the intent for which such items would be 
    used. . . .
        Mr. Bennett: . . . [T]he amendment does not impose any 
    additional duties, because the term drug paraphernalia is very 
    specifically defined in the DEA's Model Act, which has been adopted 
    already by 23 States and, of course, it would not create additional 
    duties, because the District already employs license inspectors who 
    routinely visit establishments of vendors who have such a license.
        The Chairman: (7) . . . The question is a difficult 
    one, but after consultation with the Parliamentarian and in 
    reviewing precedents, the Chair finds, and quotes directly from 
    page 537 of the House Rules and Manual:
---------------------------------------------------------------------------
 7. William R. Ratchford (Conn.).
---------------------------------------------------------------------------

            Where an amendment to or language in a general 
        appropriation bill implicitly places new duties on officers of 
        the government or implicitly requires them to make 
        investigations, compile evidence, or make judgments and 
        determinations not otherwise required of them by law, such as 
        to judge intent or motives, then it assumes the character of 
        legislation and is subject to a point of order.

        The Model Act incorporated by reference in the amendment 
    requires a determination that the drug equipment being sold be 
    intended for use in connection with drug preparation or use.
        The Chair, therefore, rules that the point of order is well 
    taken and the point of order is sustained.

[[Page 5650]]

Restricting Discretion and Requiring Determinations--Where Legal 
    Rrequirement for Such Duties Is Not Explicit

Requiring New Determination ``In Accordance With Existing Law''--Burden 
    of Citing Law

Sec. 23.19 The burden of proof is on the proponent of an amendment to a 
    general appropriation bill to show that a proposed executive 
    determination is required by existing law, and the mere recitation 
    that the determination is to be made pursuant to existing law and 
    regulations, absent a citation to the law imposing that 
    responsibility, is not sufficient to overcome a point of order that 
    the amendment constitutes legislation.

    On Sept. 16, 1980,(8) during consideration in the 
Committee of the Whole of the Department of Defense appropriation bill 
(H.R. 8105), a point of order against an amendment was sustained as 
follows:
---------------------------------------------------------------------------
 8. 126 Cong. Rec. 25606, 25607, 96th Cong. 2d Sess.
---------------------------------------------------------------------------

        . . . No funds herein appropriated shall be used for the 
    payment of a price differential on contracts hereafter made for the 
    purpose of relieving economic dislocations: Provided further, That 
    none of the funds appropriated in this Act shall be used except 
    that, so far as practicable, all contracts shall be awarded on a 
    formally advertised competitive bid basis to the lowest responsible 
    bidder.
        The Clerk read as follows:

            Amendment offered by Mr. [Joseph P.] Addabbo [of New York]: 
        Page 41, line 23, strike out ``Provided further,'' and all that 
        follows through 'economic dislocations:' on page 42, line 1, 
        and insert in lieu thereof ``Provided further, That no funds 
        herein appropriated shall be used for the payment of a price 
        differential on contracts hereafter made for the purpose of 
        relieving economic dislocations other than contracts made by 
        the Defense Logistics Agency and such other contracts of the 
        Department of Defense as may be determined by the Secretary of 
        Defense pursuant to existing laws and regulations as not to be 
        inappropriate therefor by reason of national security 
        considerations:''. . .

        Mr. [Jack] Edwards of Alabama: Mr. Chairman, I make a point of 
    order against the amendment as legislation in a general 
    appropriation bill, and therefore in violation of clause 2 of rule 
    XXI.
        I respectfully direct the attention of the Chair to Deschler's 
    Procedure, chapter 25, section 11.2 which states:

            It is not in order to make the availability of funds in a 
        general appropriation bill contingent upon a substantive 
        determination by an executive official which he is not 
        otherwise required by law to make.

        I also respectfully direct the attention of the Chair to 
    section 843 of the House Manual, which states in part:

            The fact that a limitation on the use of funds may . . . 
        impose certain

[[Page 5651]]

        incidental burdens on executive officials does not destroy the 
        character of the limitation as long as it does not directly 
        amend existing law and is descriptive of functions and findings 
        already required to be undertaken under existing law. . . .

        Mr. Chairman, the amendment prohibits the payment of price 
    differentials on contracts except--and I quote:

            As may be determined by the Secretary of Defense pursuant 
        to existing laws and regulations as not to be inappropriate 
        therefor by reason of national security considerations.

        The exception makes the availability of funds for payment of 
    price differentials contingent on a substantive determination by 
    the Secretary of Defense which is not now required under the 
    current law. Although the determination is limited ``pursuant to 
    existing laws and regulations,'' there is no existing law at the 
    present time, and if this amendment is enacted, it will constitute 
    the existing law and require this new determination. . . .
        The Chairman: (9) The Chair is ready to rule.
---------------------------------------------------------------------------
 9. Daniel D. Rostenkowski (Ill.).
---------------------------------------------------------------------------

        The amendment would appear to call for a determination by the 
    Secretary of Defense as to appropriateness by reason of national 
    security considerations. Unless the gentleman from New York (Mr. 
    Addabbo) can cite to the Chair those provisions of existing law 
    requiring such determinations with respect to defense contracts, 
    the Chair must conclude that the amendment would impose new duties 
    upon the Secretary and would constitute legislation.

Restriction on Use of Funds

Language Implying Cooperation With Other Government Agencies ``Where 
    Authorized by Law''

Sec. 23.20 A provision in an amendment to a general appropriation bill 
    containing funds for an FTC collection of line-of-business data 
    from not more than 250 firms including data presently made 
    available to the Bureau of Census, Securities and Exchange 
    Commission and other government agencies where authorized by law 
    was held not to change existing law relating to agency authority 
    for collection of such data.

    On June 21, 1974, (10) during consideration in the 
Committee of the Whole of H.R. 15472 (Department of Agriculture, 
environment and consumer appropriation bill), an amendment was held in 
order as follows:
---------------------------------------------------------------------------
10. 120 Cong. Rec. 20601, 20602, 93d Cong. 2d Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Amendment offered by Mr. [Jamie L.] Whitten [of 
        Mississippi]: Page 47, line 6, after the word ``data'' add the 
        following: ``Provided, That none of these funds shall be used 
        for collecting line-of-business data from not [sic] more than 
        250 firms, including

[[Page 5652]]

        data presently made available to the Bureau of the Census, the 
        Securities and Exchange Commission and other government 
        agencies where authorized by law.''. . .

        Mr. [Bob] Eckhardt [of Texas]: Mr. Chairman, the point of order 
    is under House Rule XXI, clause 2, second sentence. . .
        Now, under existing law and without the limitations reported to 
    be added in this bill the Federal Trade Commission could and had 
    intended--and, of course, what it actually intended is not material 
    here, because the question is what it could have done--it could 
    have used the funds as appropriated here for either 250 firms or 
    500 firms or any other number of firms. So what is done by this 
    amendment is to restrict the Federal Trade Commission with respect 
    to powers and duties and authorities which it would have but for 
    this limitation.
        The authorities on this point appear in volume VII of Cannon's 
    Precedents, section 1675, which reads:

            A proper limitation does not interfere with executive 
        discretion or require affirmative action on the part of the 
        Government officials. . . .

        It would also require liaison with the Bureau of Census, the 
    Securities and Exchange Commission, and other Government agencies 
    which are not here designated but which would cover the whole gamut 
    of such agencies.
        So it both provides a limitation on executive discretion and 
    affirmative acts on the part of Government officials. . . .
        Mr. [John] Melcher [of Montana]: . . . Public Law 93-153 
    authorizes line-of-business data to be collected by independent 
    regulatory agencies subject to certain procedures. It did not limit 
    or restrict the collection of this data to any specific number of 
    firms, as the gentleman's amendment would; he would change this 
    policy by arbitrarily limiting the collection of the data 
    specifically to 250 firms.
        In addition, Mr. Chairman, Public Law 93-153 does not authorize 
    the collection of line-of-business data from the Bureau of the 
    Census of the Security and Exchange Commission. This authority was 
    placed in an ``independent regulatory agency.''. .
        The Chairman: (11) The Chair is ready to rule.
---------------------------------------------------------------------------
11. Sam Gibbons (Fla.).
---------------------------------------------------------------------------

        First, let the Chair state that this subject contains a very 
    vexing point, and it is one that has required a lot of attention of 
    the Chair, even prior to the arguments here.
        The words in contest on this point of order are the following 
    words added by the amendment:

            . . . provided that none of the funds shall be used for 
        collecting line-of-business data from not more than 250 firms, 
        including data presently made available by the Bureau of the 
        Census, the Securities and Exchange Commission, and other 
        government agencies where authorized by law.

        It is clear to the Chair that the words ``provided that none of 
    these funds shall be used for collecting line of business data of 
    not more than 250 firms'' may clearly be added as an amendment to a 
    general appropriation bill, and it is in order. The Committee on 
    Appropriations could have refused to bring in any appropriation at 
    all for

[[Page 5653]]

    this agency, and the committee seeks by this amendment to put a 
    limitation upon the use of funds available to the FTC. The 
    limitation is drafted as a restriction on the use of funds, and not 
    as an affirmative restriction on the scope of the FTC 
    investigation, as was the case in the language stricken from the 
    bill on the preceding point of order.(12)
---------------------------------------------------------------------------
12. See Sec. 51.18, infra, for discussion of the earlier point of order 
        referred to by the Chair.
---------------------------------------------------------------------------

        The remainder of the amendment raises some question, but in the 
    opinion of the Chair, these words are clearly limited by ``where 
    authorized by law,'' and do not permit the Census Bureau or the SEC 
    to initiate line of business investigations, so the Chair is going 
    to rule that the amendment is in order and that the points of order 
    are overruled.

Restriction of Funds Based on Determinations Already Required by Law

Sec. 23.21 An amendment to a general appropriation bill prohibiting the 
    use of funds therein to pay salaries of federal employees who 
    assess civil penalties on small farmers for violations of the 
    Occupational Health and Safety Act which are neither willful, 
    repeated, nor serious was held not to require new determinations 
    and not to violate Rule XXI clause 2, where it was shown that 
    existing law (29 USC Sec. 666) already required those precise 
    determinations to be made in assessing penalties under that act.

    On June 24, 1976,(13) during consideration in the 
Committee of the Whole of the Departments of Labor and Health, 
Education, and Welfare appropriation bill, a point of order against an 
amendment was overruled as follows:
---------------------------------------------------------------------------
13. 122 Cong. Rec. 20373, 20374, 94th Cong. 2d Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Amendment offered by Mr. [William D.] Ford of Michigan as a 
        substitute for the amendment offered by Mr. Skubitz: In lieu of 
        the matter proposed to be inserted by the amendment offered by 
        Mr. Skubitz, insert the following: ``: Provided, That none of 
        the funds appropriated under this paragraph shall be used to 
        pay the salary of any employee of the Department of Labor who 
        proposes the assessment of monetary penalties for any violation 
        which, under the provisions of section 17 of the Occupational 
        Safety and Health Act of 1970 is neither (1) willful, (2) 
        repeated, nor (3) serious, to any employer who is engaged in a 
        farming operation and employs 5 or fewer employees.''. . .

        Mr. [Paul] Findley [of Illinois]: I make a point of order that 
    the amendment is not in order. It does not fall within the Holman 
    rule, and I would like to be heard on the point of order. . . .
        Mr. Chairman, I have listened to the amendment. It was clear to 
    me that

[[Page 5654]]

    this would require that a determination be made, first of all, that 
    a violation is willful; second, that a violation is repeated; 
    third, that a violation is serious. One of the conditions of the 
    Holman rule is that it not impose a burden upon the administration. 
    If this language does not impose a burden upon the administration, 
    I do not know what would. . . .
        Mr. Ford of Michigan: . . . With all due respect to the 
    gentleman who is an expert on the amendment procedure, I am afraid 
    he did not fully hear the amendment as read, because what the 
    amendment says is that no employee of the Department of Labor who 
    proposes the assessment of monetary penalties for any violation--
    any violation--which under the provisions of section 17 of the 
    Occupational Safety and Health Act of 1970 is defined as--and the 
    determination is already made by that section of the act. There is 
    no duty imposed on the Secretary that is in any way different from 
    the duty imposed presently by the statutory law that we are 
    appropriating this money for. We do not impose any new duty. He did 
    not draw any new definitions. It is simply a question of whether he 
    will assess monetary damages against a person who is accused of a 
    violation that falls within the purview of any one of these section 
    17 definitions. . .
        Mr. [David R.] Obey [of Wisconsin]: . . . If we are going to 
    talk about additional duties imposed, then certainly if this 
    amendment is out of order, the original amendment ought to be out 
    of order because we have a letter from the U.S. Department of Labor 
    which outlines some of the additional duties required in fact by 
    the original amendment. Under the amendment offered by the 
    gentleman from Kansas (Mr. Skubitz) they would have to issue new 
    regulations, they would have to draw up new forms, they would have 
    to monitor recordkeeping by farmers, they would have to change the 
    inspector instruction manual, they would have to verify employment 
    records, and a number of other duties. So I certainly think the 
    same latitude extended to the original amendment ought to be 
    extended to the substitute.
        The Chairman: (14) May the Chair inquire of the 
    gentleman from Michigan, did the Chair understand the gentleman 
    from Michigan to declare that section 17 of the Occupational Safety 
    and Health Act of 1970 in its present form already requires the 
    determinations on the part of the Administrator as to willfulness, 
    repetition, or seriousness of offenses?
---------------------------------------------------------------------------
14. James C. Wright, Jr. (Tex.).
---------------------------------------------------------------------------

        Mr. Ford: That is correct.
        The Chairman: . . . The Chair is prepared to rule.
        Basing the Chair's assumption upon the interpretation of 
    existing law as described by the gentleman from Michigan, the Chair 
    finds that there would be no additional duties imposed upon the 
    Administrator, no additional determinations required of him, and 
    the amendment merely describes determinations already required by 
    existing law and is essentially, therefore, a limitation upon the 
    appropriation.
        Under the rules the Chair would overrule the point of order.

[[Page 5655]]

Denial of Funds to Implement Executive Order

Limitation May Contain Language Conforming to Legal Authority it Seeks 
    to Restrict

Sec. 23.22 As it is in order by way of a limitation on an appropriation 
    bill to deny the use of funds therein for implementation of an 
    Executive order, an amendment precisely describing the contents of 
    the Executive order does not for that reason violate Rule XXI 
    clause 2.

    On Mar. 16, 1977,(15) an amendment to a general 
appropriation bill prohibiting the use of funds therein for salaries or 
expenses connected with dismissal of any pending indictments, or 
termination of any pending investigation of violations of the Military 
Selective Service Act, or to permit persons to enter the United States 
who committed or apparently committed violations of that act--the exact 
determinations required by an Executive order issued pursuant to law by 
the President to implement his pardon program for draft evaders--was 
held in order as a limitation, not requiring new determinations by 
federal officials, which merely denied the availability of funds to 
implement the Executive order. The proceedings were as indicated below:
---------------------------------------------------------------------------
15. 123 Cong. Rec. 7748, 7749, 95th Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Amendment offered by Mr. John T. Myers [of Indiana]: On 
        page 72, after line 27, add the following new section:

            ``Sec. 305. None of the funds appropriated or otherwise 
        made available in this Act shall be obligated or expended for 
        salaries or expenses in connection with the dismissal of any 
        pending indictments for violations of the Military Selective 
        Service Act alleged to have occurred between August 4, 1964 and 
        March 28, 1973, or the termination of any investigation now 
        pending alleging violations of the Military Selective Service 
        Act between August 4, 1964 and March 28, 1973, or permitting 
        any person to enter the United States who is or may be 
        precluded from entering the United States under 8 U.S.C. 1182 
        (a)(22) or under any other law, by reason of having committed 
        or apparently committed any violation of the Military Selective 
        Service Act.'' . . .

        Mr. [Sidney R.] Yates [of Illinois]: Mr. Chairman, I make a 
    point of order that [the amendment] is legislation in an 
    appropriations bill, obviously legislation in an appropriations 
    bill. . . .
        Mr. John T. Myers . . . This is a limiting amendment. This 
    Congress has adopted similar language a great many times limiting 
    how the funds so appropriated may be used. I do not by any means 
    wish to challenge or question the authority the Executive has in 
    issuing a pardon. That is a constitutional responsibility or right 
    that the Executive has. But this Congress has the constitutional 
    responsibility and right to appropriate money. All this

[[Page 5656]]

    amendment does is limit how that money shall be spent again by an 
    exercise that this Congress has used a great many times.
        It is a negative restriction of funds. It is consistent exactly 
    with the language that was used in the Executive order relating to 
    the program of pardon. This amendment does not change existing law 
    nor does it impose additional duties. The language of the amendment 
    conforms exactly to the language of that Executive order. . . .
        The constitutional argument is a moot one, I feel. Whatever the 
    constitutional powers of the President may be, there is no 
    obligation upon the Congress, there never has been, that we have to 
    appropriate the money. . . .
        The Chairman: (16) . . . The Chair is constrained to 
    rule that the amendment does not directly impose additional duties 
    upon the Executive, the amendment may have the effect of 
    restricting Executive discretion by a simple negative use of the 
    appropriation but the determinations to be made are already 
    required by law and the Executive order and are not new 
    determinations. The point of order is overruled.
---------------------------------------------------------------------------
16. Walter Flowers (Ala.).
---------------------------------------------------------------------------

 Exception to Limitation if President Makes a Determination Already 
    Required by Law

Sec. 23.23 Where existing law (50 USC App. 2403(c), 2406(g)) permitted 
    the President to impose export controls, specifically on 
    agricultural commodities not in short domestic supply, unless he 
    and the Secretary of Agriculture determined that the absence of 
    controls would be detrimental to the foreign policy or national 
    security of the United States, an amendment to a general 
    appropriation bill prohibiting the use of funds therein for export 
    controls on agricultural commodities unless subsequently imposed 
    solely for those reasons was allowed; the amendment's impact on 
    discretionary authority with respect to commodities in short supply 
    was, however, subsequently cited in debate and, if cited earlier, 
    might have led to modification of the Chair's ruling.

    On July 23, 1980,(17) during consideration in the 
Committee of the Whole of H.R. 7584 (Departments of State, Justice, 
Commerce, and the Judiciary appropriation bill), the following 
amendment was held in order:
---------------------------------------------------------------------------
17. 126 Cong. Rec. 19295, 96th Cong. 2d Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Amendment offered by Mr. [E. Thomas] Coleman [of Missouri] 
        to the amendment offered by Mr.

[[Page 5657]]

        [Mark] Andrews of North Dakota: (18) after the word 
        ``commodity'' in the last line insert: ``unless on or 
        subsequent to October 1, 1980, the President imposes a 
        restriction on the export of any such commodity solely on the 
        basis that such export would prove detrimental to the foreign 
        policy or national security of the United States''. . . .
---------------------------------------------------------------------------
18. The Andrews amendment provided: ``None of the funds appropriated by 
        this Act may be used to carry out or enforce any restriction on 
        the export of any agricultural commodity.'' See 126 Cong. Rec. 
        19087, 96th Cong. 2d Sess., July 22, 1980.
---------------------------------------------------------------------------

        Mr. [Silvio O.] Conte [of Massachusetts]: Mr. Chairman, I make 
    a point of order against the amendment in that it exceeds the 
    limitation and imposes additional duties upon the President of the 
    United States. . . .
        Mr. Coleman: . . . Mr. Chairman, the point of order is not well 
    taken because my amendment does not establish any new additional 
    duties. It simply says that if the President of the United States 
    subsequent to October 1, 1980, imposes an embargo then none of 
    these funds shall be used to fund that embargo. It imposes 
    absolutely no new duties. It simply states that if the President on 
    his own takes some action, that none of these funds shall be used 
    to support that action. . . .
        The Chairman: (19) The Chair is prepared to rule.
---------------------------------------------------------------------------
19. George E. Brown, Jr. (Calif.).
---------------------------------------------------------------------------

        The gentleman from Massachusetts (Mr. Conte) makes a point of 
    order against the amendment of the gentleman from Missouri (Mr. 
    Coleman) on the grounds that it imposes an additional duty, and 
    constitutes legislation on an appropriation bill. Ordinarily, such 
    Presidential determination language on an appropriation bill would 
    constitute legislation, but the amendment only repeats verbatim the 
    determination authority contained in the section of existing law 
    (section 4(c) of the Export Administration Act of 1979) which has 
    been called to the Chair's attention.
        Therefore, the amendment does not constitute new legislation in 
    any way discernible to the Chair.

Limitation Restating Language in Authorization Bill

Sec. 23.24 While a limitation on the use of funds in a general 
    appropriation bill does not constitute a violation of Rule XXI 
    clause 2 if it merely restates identical language in existing law, 
    the legislation in question must have been signed into law.

    On Aug. 4, 1978,(20) during consideration in the 
Committee of the Whole of the foreign aid appropriation bill (H.R. 
12931), a point of order against the following amendment was sustained:
---------------------------------------------------------------------------
20. 124 Cong. Rec. 24436, 24437, 95th Cong. 2d Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Amendment offered by Mr. [Henry A.] Waxman [of California]: 
        On page 13 of the bill after line 16, insert the following new 
        section:
            ``Sec. 116. Funds appropriated or made available in this 
        act for inter

[[Page 5658]]

        national narcotics control shall not be used for the 
        eradication of marijuana through the use of the herbicide 
        paraquat, unless the paraquat is used in conjunction with 
        another substance or agent which will effectively warn 
        potential users of marijuana that paraquat has been used on 
        it.'' . . .

        Mr. [Robert E.] Bauman [of Maryland]: Mr. Chairman, I make a 
    point of order against the amendment because it is not a proper 
    limitation on an appropriation bill but is legislation on an 
    appropriation bill. It requires additional duties of some person or 
    persons in the Government, not only to determine whether or not the 
    herbicide named is being used but to go beyond that and also 
    determine whether it is being used in conjunction with another 
    substance as a warning, and so on. None of this is authorized by 
    law. It is legislation on an appropriation bill. . . .
        Mr. Waxman: Mr. Chairman, the authorization bill has similar 
    language that would provide for this kind of restriction in the use 
    of the money and I would consider it an essential point of what we 
    are trying to accomplish in the appropriation bill. . . .
        Mr. Chairman, the authorization bill has similar language that 
    would provide for this kind of restriction of the use of money I 
    would consider it an essential part of what we are trying to 
    accomplish in the appropriations bill.
        The Chairman: (1) The Chair is ready to rule.
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 1. Abraham Kazen, Jr. (Tex.).
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        The Chair will inform the gentleman from California (Mr. 
    Waxman) that the authorization bill is not as yet law. Were it law, 
    the gentleman's amendment might be authorized and in order, but at 
    this point the Chair will, very respectfully, sustain the point of 
    order.