[Deschler's Precedents, Volume 8, Chapter 26]
[Chapter 26. Unauthorized Appropriations; Legislation on Appropriation Bills]
[E. Provisions as Changing Existing Law; Provisions Affecting Executive Authority; Imposition of New Duties on Officials]
[Â§ 52. Provisions as Imposing New Duties]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 6063-6119]
 
                               CHAPTER 26
 
    Unauthorized Appropriations; Legislation on Appropriation Bills
 
    E. PROVISIONS AS CHANGING EXISTING LAW: PROVISIONS AFFECTING 
     EXECUTIVE AUTHORITY; IMPOSITION OF NEW DUTIES ON OFFICIALS
 
Sec.  52. Provisions as Imposing New Duties

     This section discusses those issues raised when a purported 
limitation either directly or indirectly requires a federal official to 
perform duties which are arguably not required of him under the 
existing laws pertaining to his office.(12)
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12. As to the effect of provisions imposing additional duties on 
        persons who are not federal officials, see Sec. 53, infra.

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[[Page 6064]]

    Of course, the application of any limitation on an appropriation 
bill places some minimal extra duties on federal officials, who, if 
nothing else, must determine whether a particular use of funds falls 
within that prohibited by the limitation. 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.
    In making a ruling on such issues, the Chair may be called upon to 
interpret the responsibilities imposed upon federal officials by an 
existing law to determine whether a purported limitation constitutes a 
change in the law's requirements. The proponent of an amendment, or the 
manager of the bill if a point of order is raised against the bill, 
should be required to assume the burden of proving that duties being 
imposed by the provision in question are merely ministerial or are 
already required by law. In the absence of such a showing, the Chair 
would not be required to determine for himself whether the proposed 
duties were already required by existing law.(13)
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13. See the discussion of the ruling of June 23, 1971, in the ``Note on 
        Contrary Rulings,'' which follows Sec. 53.6, 
        infra.                          -------------------
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General Rule

Sec. 52.1 Language in an appropriation bill imposing duties upon an 
    executive not contemplated by law is legislation and not in order.
    On May 17, 1937,(14) a provision in a general 
appropriation bill that ``no part of this appropriation shall be 
available for construction of such project until it is determined by 
the Secretary of the Interior, upon approval, as to legality by the 
Attorney General, that authorization therefor has been approved by act 
of Congress,'' was ruled out as legislation. Points of order were made 
as follows against such language which was contained in an Interior 
Department appropriation bill (H.R. 6958):
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14. 81 Cong. Rec. 4687, 4688, 75th Cong. 1st Sess.
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        Mr. [Frank H.] Buck [of California]: Mr. Chairman, I make a 
    point of order against the language beginning in line 24 with the 
    word ``Provided.''
        Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of 
    order against the entire paragraph.
        The Chairman: (15) Does the gentleman from New York 
    make a point of order against the entire paragraph?
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15. Jere Cooper (Tenn.).

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[[Page 6065]]

        Mr. Taber: I do.
        The Chairman: The gentleman from California made a point of 
    order against the proviso?
        Mr. Buck: Against the proviso.
        The Chairman: The gentleman from California makes a point of 
    order against the proviso appearing in line 24, page 81. The 
    gentleman from New York (Mr. Taber) makes a point of order against 
    the entire paragraph. Of course, that presents to the Chair the 
    necessity of ruling upon the point of order as it relates to the 
    entire paragraph, because if any part of a paragraph is subject to 
    a point of order it naturally follows that the entire paragraph is 
    subject to a point of order. . . .
        It appears to the Chair there can be no doubt that the language 
    appearing in the proviso is legislation on an appropriation bill. 
    The language imposes additional duties upon two executive officers 
    of the Government, the Secretary of the Interior and the Attorney 
    General. Therefore, the language in the proviso constituting 
    legislation on an appropriation bill, in violation of the rules of 
    the House, and a point of order being good as to part of a 
    paragraph, it naturally applies to the entire paragraph. The Chair, 
    therefore, sustains the point of order made by the gentleman from 
    New York as to the entire paragraph.

General Principles; Requiring Certification of Satisfaction as 
    Condition Precedent to Disbursement

Sec. 52.2 An amendment in the form of a limitation on an appropriation 
    bill providing an appropriation shall not be available until the 
    agency charged with the administration of such appropriation shall 
    be satisfied and shall so certify that no person employed upon the 
    work provided has been required as a condition precedent to 
    employment to join or not to join or to pay any sum to any 
    organization was held to be legislation and not in order in that it 
    imposed additional affirmative duties on the executive branch 
    (overruling 4 Hinds' Precedents Sec. 3942).
    On May 14, 1941,(16) the Committee of the Whole was 
considering H.R. 4590, an Interior Department appropriation bill. The 
Clerk read as follows:
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16. 87 Cong. Rec. 4053-55, 77th Cong. 1st Sess.
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        Amendment offered by Mr. [Clare E.] Hoffman [of Michigan]: On 
    page 87, after line 24, insert ``Provided, That no part of the 
    appropriation herein made shall be available until the agency 
    charged with the administration of the fund shall be satisfied, and 
    shall so certify to the Secretary of the Treasury, that no person 
    employed upon the work provided has been required as a condition 
    precedent to employment to join or not to join or to pay any sum to 
    any organization.''
        Mr. [Frank E.] Hook [of Michigan]: Mr. Chairman, I make a point 
    of order against the amendment. It is legislation on an 
    appropriation bill.

[[Page 6066]]

        The Chairman: (17) Does the gentleman from Michigan 
    desire to be heard on the point of order?
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17. Jere Cooper (Tenn.).
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        Mr. Hoffman: No; the precedents sustain the amendment.
        The Chairman: The Chair would be pleased to have the gentleman 
    from Michigan cite the precedents.
        Mr. Hoffman: Fourth Hinds', section [3942]. I copied it from 
    that precedent. . . .
        Mr. [John] Taber [of New York]: Mr. Chairman, if I may be 
    permitted, from what I have heard of the amendment, this seems to 
    be a pure limitation that no funds shall be permitted to be paid to 
    any person who is required as a condition precedent to employment 
    to do certain things. There is no additional duty in any way 
    imposed upon anyone and there is no legislation contained in the 
    limitation. . . .
        The Chairman: The Chair is prepared to rule. . . .
        The author of the amendment has cited as a precedent supporting 
    his contention that the amendment is in order, a decision appearing 
    in section 3942 of the fourth volume of Hinds' Precedents. The 
    Chair has examined that decision and is inclined to agree with the 
    gentleman from Michigan that there is some analogy between the 
    question under consideration here and the question under 
    consideration under that decision, but the Chair invites attention 
    to the fact that this decision was made in 1901. The Chair also 
    invites attention to a subsequent decision, on January 6, 1923, 
    which appears in section 1706 of volume 7 of Cannon's Precedents. 
    This is a rather lengthy decision, but it appears to the Chair to 
    be directly in point on the question here presented.
        After citing numerous precedents, the Chairman of the Committee 
    of the Whole, Mr. Hicks, had the following to say:

            As a general proposition the Chair feels that whenever a 
        limitation is accompanied by the words ``unless,'' ``except,'' 
        ``until,'' ``if,'' ``however,'' there is ground to view the so-
        called limitation with suspicion, and in case of doubt as to 
        its ultimate effect the doubt should be resolved on the 
        conservative side. By doing so appropriation bills will be 
        relieved of much of the legislation which is being constantly 
        grafted upon them and a check given a practice which seems to 
        the Chair both unwise and in violation of the spirit, as well 
        as the substance, of our rules. Without endeavoring to lay down 
        any hard and fast rule, the Chair feels that the following 
        tests may be helpful in deciding a question of order directed 
        against a limitation, first having determined the powers 
        granted or the duties imposed by existing law:
            Does the limitation apply solely to the appropriation under 
        consideration?
            Does it operate beyond the fiscal year for which the 
        appropriation is made?
            Is the limitation accompanied or coupled with a phrase 
        applying to official functions, and if so, does the phrase give 
        affirmative directions in fact or in effect, although not in 
        form?
            Is it accompanied by a phrase which might be construed to 
        impose additional duties or permit an official to assume an 
        intent to change existing law?
            Does the limitation curtail or extend, modify, or alter 
        existing powers or duties, or terminate old or confer new ones? 
        If it does, then it must be

[[Page 6067]]

        conceded that legislation is involved, for without legislation 
        these results could not be accomplished.
            If the limitation will not fairly stand these tests then in 
        my opinion the point of order should be sustained. Applying in 
        the present instance the standards set forth, the judgment of 
        the Chair is that the point of order is well taken and the 
        Chair sustains it.

        The Chair invites attention to the fact that the pending 
    amendment provides--

            That no part of the appropriation herein made shall be 
        available until the agency charged with the administration of 
        the fund shall be satisfied, and shall so certify to the 
        Secretary of the Treasury, that no person employed upon the 
        work provided has been required as a condition precedent to 
        employment to join or not to join or to pay any sum to any 
        organization.

        The Chair is of opinion that this amendment would impose 
    additional duties upon the officials who would have to make the 
    certificate contemplated by the amendment. The Chair is likewise of 
    opinion the effect of this amendment would be to impose additional 
    duties upon the Secretary of the Treasury, at least to the extent 
    of requiring him to receive the certificate contemplated under the 
    amendment. Therefore, under the precedents cited by the Chair, 
    appearing in section 1706 of volume VII, Cannon's Precedents, the 
    Chair is of opinion that the amendment does embrace legislation on 
    an appropriation bill. The Chair, therefore, sustains the point of 
    order.

    Parliamentarian's Note: The Chair in effect overruled the decision 
in 4 Hinds' Precedents Sec. 3942 on the basis of the rationale 
contained in the ruling in 7 Cannon's Precedents Sec. 1706 as 
reiterated in the headnote. The Chair's ruling in 4 Hinds' Precedents 
Sec. 3942 is clearly not supportable under the modern practice. See 
also Sec. 51.6, supra. The well-reasoned statement of the doctrine of 
limitations by Chairman Hicks, contained in 7 Cannon's Precedents 
Sec. 1706, serves as an essential basis for determining the propriety 
of amendments in the form of limitations.

Requiring a Hearing Before Making Determination

Sec. 52.3 During consideration of an appropriation for the Office of 
    Information of the Department of Agriculture, language providing 
    that transfers from other appropriations to this appropriation, 
    where authorized, should be adjusted as determined by the Bureau of 
    the Budget, whenever such other appropriations are found to vary 
    from the original budget estimates therefor, was ruled out as 
    legislation.

    On Apr. 27, 1950,(18) during consideration in the 
Committee of the Whole of a general appropriation

[[Page 6068]]

bill (H.R. 7786), a provision as described above was under 
consideration. The following proceedings took place:
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18. 96 Cong. Rec. 5914, 81st Cong. 2d Sess.
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        Mr. [Kenneth B.] Keating [of New York]: Mr. Chairman, I make a 
    point of order to the language appearing on page 207 
    (19) . . .
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19. The language objected to stated: that if the total amounts of the 
        appropriations from which transfers to this appropriation are 
        herein authorized exceed or fall below the amounts estimated 
        therefor in the budget, the amounts transferred therefrom to 
        this appropriation shall be increased or decreased in such 
        amounts as the Bureau of the Budget, after a hearing thereon 
        with representatives of the Department, shall determine are 
        appropriate to the requirements.
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         . . . I make the point of order that these provisions require 
    additional duties upon the part of both the Secretary of 
    Agriculture and the Bureau of the Budget and constitute legislation 
    on an appropriation bill and are, therefore, subject to a point of 
    order.
        The Chairman: (20) Does the gentleman from 
    Mississippi desire to be heard? . . .
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20. Jere Cooper (Tenn.).
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        Mr. [Jamie L.] Whitten [of Mississippi]: . . . I am of the 
    opinion that the point of order should be sustained.
        The Chairman: The Chair is prepared to rule. The gentleman from 
    New York [Mr. Keating] makes the point of order against the 
    language appearing on page 207 of the bill, which has been pointed 
    out by him, on the ground that it includes legislation on an 
    appropriation bill in violation of the rules of the House. The 
    gentleman from Mississippi concedes the point of order. The Chair 
    sustains the point of order.

Duty of Determining Rationale or Motive

Sec. 52.4 The application of any limitation on an appropriation bill 
    places some minimal extra duties on federal officials, who, if 
    nothing else, must determine whether a particular use of funds 
    falls within that prohibited by the limitation; but when an 
    amendment, while curtailing certain uses of funds carried in the 
    bill, explicitly places new duties on officers of the government or 
    inevitably requires them to make investigations, compile evidence, 
    discern the motives or intent of individuals, 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.

    On July 31, 1969,(1) the Committee of the Whole was 
consid

[[Page 6069]]

ering H.R. 13111, a Departments of Labor, and Health, Education, and 
Welfare appropriation bill. The Clerk read as follows:
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 1. 115 Cong. Rec. 21653, 21675, 91st Cong. 1st Sess.
            Note: The principles stated in this precedent are difficult 
        to apply, of course, and some rulings may seem to have departed 
        from the strictest application thereof. Thus, as an example, in 
        one line of rulings, amendments were held in order which sought 
        to withhold payments under military or defense contracts in 
        situations in which work stoppages or strikes had impeded 
        performance of the contracts. (See 87 Cong. Rec. 4837, 4838, 
        4890, 4891, and 4901, 77th Cong. 1st Sess., rulings of June 6 
        and June 9, 1941; and 106 Cong. Rec. 12269, 12270, 86th Cong. 
        2d Sess., June 9, 1960.) Such rulings would probably not be 
        regarded as within the guidelines noted above for determining 
        whether proposed limitations are allowable under Rule XXI 
        clause 2.
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        Sec. 408. No part of the funds contained in this Act may be 
    used to force busing of students, the abolishment of any school, or 
    to force any student attending any elementary or secondary school 
    to attend a particular school against the choice of his or her 
    parents or parent. . . .
        Mr. [Silvio O.] Conte [of Massachusetts]: Mr. Chairman, I offer 
    amendments and I ask unanimous consent that the amendments be 
    considered en bloc.
        The Chairman: (2) Is there objection to the request 
    of the gentleman from Massachusetts?
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 2. Chet Holifield (Calif.).
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        There was no objection.
        The Clerk read as follows:

            Amendments offered by Mr. Conte: On page 56, line 11, 
        strike lines 11 through 15 and insert the following:
            ``Sec. 408. No part of the funds contained in this Act may 
        be used to force busing of students, the abolishment of any 
        school, or to force any student attending any elementary or 
        secondary school to attend a particular school against the 
        choice of his or her parent or parents, in order to overcome 
        racial imbalance.''

        And on page 56, line 16. Strike lines 16 through 20 and insert 
    the following:

            ``Sec. 409. No part of the funds contained in this act may 
        be used to force busing of students, the abolishment of any 
        school or the attendance of students at a particular school in 
        order to overcome racial imbalance as a condition precedent to 
        obtaining Federal funds otherwise available to any State, 
        school district or school.''

        Mr. [Robert L. F.] Sikes [of Florida]: Mr. Chairman, I wish to 
    make a point of order against the amendment.
        The Chairman: The Chair will hear the gentleman.
        Mr. Sikes: Mr. Chairman, it appears to me that the rulings of 
    the Chair heretofore on this bill this afternoon show clearly that 
    this is legislation on an appropriation bill and not a simple 
    limitation in that the language of the amendment will require 
    someone in the executive department to determine whether busing is 
    to overcome racial imbalance. Therefore, it imposes additional 
    duties and as such I consider it to be legislation on an 
    appropriation bill. The Chair has so ruled on a 
    number of occasions on this bill to 
    date. . . .
        Mr. Conte: . . . Mr. Chairman, I do not see where these 
    amendments I

[[Page 6070]]

    have, which only change several words in order to overcome racial 
    imbalance, and these are the words that I add, and that is the 
    crucial term--I do not see where it gives the Department of Health, 
    Education, and Welfare or its head or anyone under the Secretary 
    any additional burdens that the present Jamie Whitten sections 408 
    or 409 do not. I think it is certainly a limitation on the 
    expenditure of funds, and, therefore, the point of order should be 
    overruled.
        Further, I may say, Mr. Chairman, if a point of order would lie 
    on this, it will certainly lie on sections 408 and 409, and I will 
    offer such. . . .
        The Chairman: The Chair is prepared to rule. The Chair 
    recognizes that this is a very difficult matter. The proposed 
    amendment for section 408 is different from section 408 of the bill 
    in that it has added the words ``in order to overcome racial 
    imbalance.''
        The Chair believes that this would impose duties upon officials 
    which they do not have at the present time, and therefore, it is 
    legislation on an appropriation bill.
        Mr. Conte: Mr. Chairman, may I be heard for a minute?
        Mr. [Joe D.] Waggonner [Jr., of Louisiana]: Mr. Chairman, 
    regular order.
        The Chairman: The gentleman will please desist until the Chair 
    has finished his ruling on the second amendment because they are 
    being considered en bloc.
        The additional words in the amendment to section 409 are ``in 
    order to overcome racial imbalance'' and this clearly requires 
    additional duties on the part of the officials. Therefore, it is 
    not negative in nature and is legislation on an appropriation bill.
        The Chair, therefore, sustains the point of order.

    Parliamentarian's Note: While the Chair was not asked to rule on 
the sections of the bill being amended, requiring the determination of 
whether a student was being bused ``against the choice of his parents 
or parent'', that language might also have been construed as 
legislation.

Receiving Information

Sec. 52.5 While it is not in order in an appropriation bill to insert 
    by way of amendment a proposition which places additional duties on 
    an executive officer, the mere requirement that the executive 
    officer be the recipient of information is not considered as 
    imposing upon him any additional burdens and is in order.

    The ruling of June 11, 1968,(3) is discussed in the 
``Note on Contrary Rulings,'' which follows Sec. 53.6, infra. One of 
the issues also addressed in the proceedings of that day was the effect 
of a seeming imposition of duties on private individuals or others not

[[Page 6071]]

in the employ of the federal government.
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 3. 114 Cong. Rec. 16712, 90th Cong. 2d Sess.
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New Determinations

Sec. 52.6 An amendment to an appropriation bill proposing reduction of 
    expenditures through an apportionment procedure authorized by law, 
    but requiring such reduction to be made ``without impairing 
    national defense,'' was held to require the executive branch to 
    make new determinations and therefore to be out of order as 
    legislation.

    On May 29, 1957,(4) during consideration in the 
Committee of the Whole of the Defense Department appropriation bill 
(H.R. 7665), amendments were offered as indicated below:
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 4. 103 Cong. Rec. 8069, 8070, 85th Cong. 1st Sess.
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        The Clerk read as follows:

            Amendment offered by [Gerald R.] Ford [of Michigan]: On 
        page 10, line 5, strike out ``$392 million'' and insert ``$400 
        million''. . .

        The Clerk read as follows:

            Amendment offered by Mr. [August E.] Johansen [of Michigan] 
        as a substitute for the amendment offered by Mr. Ford: On page 
        10, line 5, strike out ``$392 million'' and insert in lieu 
        thereof ``400 million'' and on page 10, line 6, immediately 
        before the period insert the following: ``Provided, That 
        appropriations made by this title shall, without impairing 
        national defense, be reduced in the amount of not less than $8 
        million through the apportionment procedure provided for in 
        section 3679 of the Revised Statutes of the United States (31 
        U.S.C. 665).''. . .

        Mr. [George H.] Mahon [of Texas]: Mr. Chairman, I renew my 
    point of order that the gentleman's amendment is legislation on an 
    appropriation bill, also that it imposes additional duties.
        The Chairman: (5) Does the gentleman from Michigan 
    [Mr. Johansen] desire to be heard?
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 5. Eugene J. Keogh (N.Y.).
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        Mr. Johansen: Mr. Chairman, may I say that in the appropriation 
    bill in the 81st Congress, second session, a provision, section 
    1214, to the effect that appropriations, reappropriations, contract 
    authorizations, and reauthorizations made by this act for 
    departments and agencies in the executive branch of the Government 
    shall without impairing national defense be reduced in an amount of 
    not less than $550 million.
        It is on the basis of that sort of limitation that I offered 
    the amendment.
        The Chairman: The Chair is ready to rule.
        The gentleman from Michigan [Mr. Johansen] offers an amendment 
    in the nature of a substitute to the pending amendment, on page 10, 
    line 6, by adding language contained in the proviso of the 
    substitute. That language indicates that the appropriations made by 
    this title shall without impairing the national defense be reduced 
    in the amount of not less than $8 million through the apportionment 
    procedures provided for in another section of exist

[[Page 6072]]

    ing law, which section vests authority in the executive branch to 
    make certain apportionments.
        It is the opinion of the Chair that the language of this 
    proviso imposing, as it does, an obligation and requirement on the 
    executive branch to make reductions without impairing the national 
    defense and without establishing any standards therefor is 
    legislation on an appropriation bill, is subject to the point of 
    order, and the Chair sustains the point of order.

Duties Indirectly Resulting From Operation of Other Laws

Sec. 52.7 Language in an appropriation bill providing that none of the 
    funds therein shall be used to pay any employee of the Department 
    of Agriculture who serves as a member of the Board of Directors or 
    as an officer of the Commodity Credit Corporation was held to be a 
    negative limitation and in order although indirectly effecting a 
    change in policy.

    On May 11, 1960,(6) the Committee of the Whole was 
considering H.R. 12117, an Agriculture Department appropriation bill. 
The Clerk read as follows:
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 6. 106 Cong. Rec. 10053, 10054, 86th Cong. 2d Sess.
---------------------------------------------------------------------------

        Sec. 408. No part of the funds appropriated by this Act shall 
    be used to pay the compensation of any employee or officer of the 
    Department, except the Secretary of Agriculture, who, in addition 
    to other regularly assigned responsibilities, serves as a member of 
    the Board of Directors or as an officer of the Commodity Credit 
    Corporation after February 1, 1961.
        Mr. [Paul] Brown of Georgia: Mr. Chairman, a point of order.
        The Chairman: (7) The gentleman will state it.
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 7. Paul J. Kilday (Tex.).
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        Mr. Brown of Georgia: . . . This reverses a decision made by 
    the Banking and Currency Committee and the Congress in 1949, when 
    the CCC Charter Act was amended to strike out a similar restriction 
    which had been enacted in 1948. It is, therefore, legislation, and 
    the mere fact it is put in the form of a limitation on the use of 
    funds appropriated by the bill does not save it. As paragraph 1691, 
    volume 7, of Cannon's Precedents of the House of Representatives 
    puts it:

            The purpose rather than the form of a proposed limitation 
        is the proper criterion by which its admissibility should be 
        judged, and if its purpose appears to be a restriction of 
        executive discretion to a degree that may be fairly termed a 
        change of policy rather than a matter of administrative detail 
        it is not in order.

        Again in paragraph 1606 of the same volume, the following is 
    found:

            Whenever a purported limitation makes unlawful that which 
        before was lawful or makes lawful that which before was 
        unlawful it changes existing law and is not in order on an 
        appropriation bill.
            A proper limitation is negative and in the nature of a 
        veto, and when it

[[Page 6073]]

        assumes affirmative form by direction to an executive in the 
        discharge of his duties under existing law it ceases to be a 
        limitation and becomes legislation.

        Section 408 in effect requires the Secretary to take 
    affirmative action. To carry out the farm programs financed by CCC, 
    the Secretary would have to appoint new Board members, recruited 
    from private life, to replace the six Department officers other 
    than himself who now serve on the Board. He would also have to 
    recruit and appoint new personnel to serve as officers of the 
    Corporation. This not only means the section constitutes 
    legislation, but also means it is not entitled to the protection of 
    the Holman rule, because it would not save the Government money. On 
    the contrary, it would require hiring new employees at additional 
    expense to the Government. . . .
        Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, the 
    section clearly provides a limitation on the use of funds that are 
    appropriated in this bill. It does not change the Commodity Credit 
    Corporation charter. It does not change any basic law. It just 
    simply limits what the money in this bill can be used for. It has 
    been my experience and observation during the years here that the 
    Chair has many times said that it is a negative limitation on the 
    use of money and that it is clearly in order, and on that I rest 
    the committee's position.
        The Chairman: The Chair is prepared to rule. . . .
        The Chair has had an opportunity to examine the precedents in 
    this connection, including the precedents to which the gentleman 
    from Georgia has referred and from which he has read. The Chair 
    would also refer to paragraph 1694 of Cannon's Precedents, volume 
    7, the language being:

            While a limitation may not involve change of existing law 
        or affirmatively restrict executive direction, it may properly 
        effect a change of administrative policy and still be in order.

        The Chair has examined additional precedents bearing on this 
    question. The Chair is constrained to hold that section 408 is a 
    restriction on a manner in which the funds can be used, and 
    constitutes a negative limitation, and, therefore, overrules the 
    point of order.

    Parliamentarian's Note: A discussion comparing the precedents cited 
above, 7 Cannon's Precedents Sec. Sec. 1691 and 1694 can be found in 
the introduction to Sec. 51, supra. An issue suggested by the debate on 
May 11, 1960, is whether language in an appropriation bill should be 
ruled out if it may lead prospectively or indirectly to the imposition 
of duties on officials, by the operation of other laws. The ruling 
suggests that only where the duties are imposed directly by the 
language of the provision in question is it subject to a point of 
order.

Discretionary Transfer of Funds

Sec. 52.8 Language in an appropriation bill making an appropriation for 
    specific ob

[[Page 6074]]

    jects ``together with such amounts [transferred] from other 
    appropriations . . . as may be determined by the Secretary,'' was 
    conceded to be legislation on an appropriation bill and held not in 
    order.
    On May 17, 1951,(8) during consideration in the 
Committee of the Whole of the Agriculture Department appropriation bill 
(H.R. 3973), a point of order was raised against the following 
provision:
---------------------------------------------------------------------------
 8. 97 Cong. Rec. 5468, 5469, 82d Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

                             Office of Information

            For necessary expenses in connection with the publication . 
        . . and distribution of bulletins, documents, and reports, the 
        preparation, distribution, and display of agricultural motion 
        and sound pictures . . . and the coordination of informational 
        work and programs authorized by Congress in the Department, 
        $1,271,000, together with such amounts from other 
        appropriations or authorizations as are provided in the 
        schedules in the budget for the current fiscal year for such 
        expenses, which several amounts or portions thereof, as may be 
        determined by the Secretary, not exceeding a total of $16,200, 
        shall be transferred to and made a part of this appropriation, 
        of which total appropriation amounts not exceeding those 
        specified may be used for the purposes enumerated as follows: 
        For preparation and display of exhibits, $104,725. . . .

        Mr. [Kenneth B.] Keating [of New York]: Mr. Chairman, I make a 
    point of order against the language in lines 4 to 9, inclusive, 
    page 46, on the ground that it involves additional duties on the 
    part of the Secretary of Agriculture.
        The Chairman:(9) Does the gentleman from Mississippi 
    care to be heard on the point of order?
---------------------------------------------------------------------------
 9. Aime J. Forand (R.I.).
---------------------------------------------------------------------------

        Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, we 
    concede the point of order.
        The Chairman: The point of order is sustained.

Requiring Annual Report

Sec. 52.9 Language in a general appropriation bill requiring that all 
    interchanges of appropriations made under the authority granted the 
    Commissioner of Indian Affairs ``shall be reported to Congress in 
    the annual Budget'' was held legislation on an appropriation bill 
    and not in order.

    On Mar. 1, 1938,(10) the Committee of the Whole was 
considering H.R. 9621, an Interior Department appropriation. At one 
point the Clerk read as follows:
---------------------------------------------------------------------------
10. 83 Cong. Rec. 2651, 2652, 75th Cong. 3d Sess.
---------------------------------------------------------------------------

        For administrative expenses, including personal services in the 
    District of Columbia and elsewhere; not to exceed $2,500 for 
    printing and binding; purchase of periodicals, directories, and 
    books of reference; purchase and oper

[[Page 6075]]

    ation of motor-propelled passenger-carrying vehicles; traveling 
    expenses of employees; rent of office and storage space; telegraph 
    and telephone tools; and all other necessary expenses not 
    specifically authorized herein, $204,000; in all, $1,745,000, to be 
    immediately available and to remain available until June 30, 1940: 
    Provided further, That not to exceed 5 percent of the amount of any 
    specific authorization may be transferred, in the discretion of the 
    Commissioner of Indian Affairs, to the amount of any other specific 
    authorization, but no limitation shall be increased more than 10 
    percent by any such transfer. All interchanges under this 
    authorization shall be reported to Congress in the annual Budget.
        Mr. [Robert F.] Rich [of Pennsylvania]: Mr. Chairman, I make 
    the point of order to the language beginning on page 68, line 23, 
    down to the end of the paragraph. It is legislation on an 
    appropriation bill. . . .
        The Chairman:(11) The Chair is ready to rule.
---------------------------------------------------------------------------
11.  Marvin Jones (Tex.).
---------------------------------------------------------------------------

        The gentleman from Pennsylvania makes the point of order that 
    the proviso beginning in line 23 on page 68 provides an expenditure 
    not authorized by existing law. The particular language of this 
    proviso was the subject of a point of order last year as shown by 
    the Record of May 14, 1937, page 4603. The language is very clear 
    and specific and is exactly the same as the language carried in 
    last year's bill with the exception of the last sentence, which 
    reads:

            All interchanges under this authorization shall be reported 
        to Congress in the annual Budget.

        It seems to the Chair that the last sentence is clearly subject 
    to a point of order.
        The Chair, therefore, sustains the point of order against the 
    proviso beginning in line 23 of page 68.

Sec.  52.10 Language in a general appropriation bill providing that a 
    statement of any transfer of appropriations made thereunder shall 
    be included in the annual budget was held to be legislation and not 
    in order on an appropriation bill.

    On Apr. 23, 1937,(12) during consideration in the 
Committee of the Whole of the Agriculture Department appropriation bill 
(H.R. 6523), a point of order was raised against the following 
provision:
---------------------------------------------------------------------------
12. 81 Cong. Rec. 3801, 3802, 75th Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

                         interchange of appropriations

            Not to exceed 10 percent of the foregoing amounts for the 
        miscellaneous expenses of the work of any bureau, division, or 
        office herein provided for shall be available interchangeably 
        for expenditures on the objects included within the general 
        expenses of such bureau, division, or office; but no more than 
        10 percent shall be added to any one item of appropriation 
        except in cases of extraordinary emergency, and then only upon 
        the written order of the Secretary of Agriculture: Provided, 
        That a statement of any transfers of appropriations made 
        hereunder shall be included in the annual Budget.

[[Page 6076]]

        Mr. [Bertrand H.] Snell [of New York]: Mr. Chairman, I make a 
    point of order against the entire section on the ground it is 
    legislation. It gives additional authority to the Secretary of 
    Agriculture and places new duties upon him.
        The Chairman: (13) The Chair is ready to rule. The 
    proviso at the bottom of the paragraph is clearly legislation, and 
    therefore the point of order of the gentleman from New York [Mr. 
    Snell] is sustained.
---------------------------------------------------------------------------
13. Franklin W. Hancock, Jr. (N.C.).
---------------------------------------------------------------------------

Requiring Administration and Disbursement in Certain Manner

Sec.  52.11 A provision in the District of Columbia appropriation bill 
    providing that the appropriation for public assistance shall be so 
    administered as to constitute the total amount that will be 
    utilized during such fiscal year for such purposes was held to 
    place additional duties upon the Commissioners and therefore 
    legislation on an appropriation bill and not a retrenchment within 
    the Holman rule exception.

    On Feb. 1, 1938,(14) the Committee of the Whole was 
considering H.R. 9181, a District of Columbia appropriation bill. The 
following proceedings took place:
---------------------------------------------------------------------------
14. 83 Cong. Rec. 1364, 75th Cong. 3d Sess.
---------------------------------------------------------------------------

                             Public Assistance

        For the purpose of affording relief to residents of the 
    District of Columbia who are unemployed or otherwise in distress 
    because of the existing emergency, to be expended by the Board of 
    Public Welfare of the District of Columbia by employment and direct 
    relief, in the discretion of the Board of Commissioners and under 
    rules and regulations to be prescribed by the board and without 
    regard to the provisions of any other law, payable from the 
    revenues of the District of Columbia, $900,000, and not to exceed 
    7\1/2\ percent of this appropriation and of Federal grants 
    reimbursed under this appropriation shall be expended for personal 
    services: Provided, That all auditing, disbursing, and accounting 
    for funds administered through the Public Assistance Division of 
    the Board of Public Welfare, including all employees engaged in 
    such work and records relating thereto, shall be under the 
    supervision and control of the Auditor of the District of Columbia: 
    Provided further, That this appropriation shall be so apportioned 
    and distributed by the Commissioners over the fiscal year ending 
    June 30, 1939, and shall be so administered, during such fiscal 
    year, as to constitute the total amount that will be utilized 
    during such fiscal year for such purposes: Provided further, That 
    not more than $75 per month shall be paid therefrom to any one 
    family.
        Mr. [Gerald R.] Boileau [of Wisconsin]: Mr. Chairman, I make a 
    point of order against the proviso appearing

[[Page 6077]]

    on page 58, line 2, after the word ``Columbia'' and ending on line 
    7 with the word ``purposes.''
        I make the point of order that this proviso is legislation on 
    an appropriation bill. . . .
        Mr. [Ross A.] Collins [of Mississippi]: Mr. Chairman, the 
    language about which the gentleman complains reads as follows:

            Provided further, That this appropriation shall be so 
        apportioned and distributed by the Commissioners over the 
        fiscal year ending June 30, 1939, and shall be so administered 
        during such fiscal year as to constitute the total amount that 
        will be utilized during such fiscal year for such purposes.

        Unquestionably that is a limitation upon an appropriation and 
    therefore comes within the rules of the House. The object is to 
    save money, and the provision shows on its face that it will save 
    money. . . .
        The Chairman: (15) . . . The Chair has examined the 
    language employed very carefully, and if I am correct in my 
    construction of that language, it seeks to impose an additional 
    burden upon the Commissioners who are charged with the duty of 
    administering the fund sought to be appropriated. In addition to 
    that, there is nothing apparent in the language of the section that 
    will result in a saving. The inference that we have from the 
    statement of the chairman of the Subcommittee on Appropriations is 
    not sufficient to bring it within the rule that a saving will be 
    effected.
---------------------------------------------------------------------------
15. William J. Driver (Ark.).
---------------------------------------------------------------------------

        The Chair is therefore of the opinion that the point of order 
    is well taken and so rules.

Additional Determination to That in Pending Language

Sec.  52.12 Legislation permitted to remain in an appropriation bill 
    may be perfected by germane amendments which do not provide 
    additional legislation, but to a legislative provision in an 
    appropriation bill authorizing transfers between appropriations 
    with the approval of the Director of the Budget an amendment 
    requiring the Director to first determine that such transfers would 
    not result in a deficiency requiring restoration of funds was held 
    to add requirements for additional determinations.

    On Feb. 19, 1953,(16) during consideration in the 
Committee of the Whole of a supplemental appropriation bill (H.R. 
3053), a point of order was raised against an amendment, as indicated:
---------------------------------------------------------------------------
16. 99 Cong. Rec. 1280, 83d Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            ``Military personnel requirements,'' Department of the Air 
        Force, $115 million; the foregoing amounts under this heading 
        to be derived by transfer from such appropriations available to 
        the Department of Defense for obligation during the fiscal year 
        1953 as may be designated by the Secretary of Defense with the 
        approval of the Director of the Bureau of the Budget.

[[Page 6078]]

        Mr. [Samuel W.] Yorty [of California]: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Yorty: On page 12, line 17, after 
        the word ``Budget'', insert a new sentence as follows: ``Before 
        approving any such transfer, the Director of the Bureau of the 
        Budget shall first determine that such transfer will not result 
        in a deficiency requiring restoration of any of the amount 
        transferred to the appropriation from which the transfer is 
        approved.''. . .

        Mr. [Richard B.] Wigglesworth [of Massachusetts]: Mr. Chairman, 
    I make a point of order against the amendment, that it is 
    legislation on an appropriation bill and imposes new duties on the 
    Director of the Bureau of the Budget.
        The Chairman: (17) Does the gentleman from 
    California desire to be heard on the point of order?
---------------------------------------------------------------------------
17. Leo E. Allen (Ill.).
---------------------------------------------------------------------------

        Mr. Yorty: Yes, Mr. Chairman. I am simply spelling out one of 
    the conditions under which the transfer of funds is to be approved 
    by the Director of the Bureau of the Budget. This appropriation 
    bill already legislates, in that it requires the approval of the 
    Director of the Bureau of the Budget. I am simply saying that he 
    find a condition precedent before he approves that transfer. I do 
    not think the point of order is well taken.
        The Chairman: The Chair is ready to rule.

        In the opinion of the Chair the amendment contains legislation, 
    contrary to the rules of the House.
        The Chair sustains the point of order.

Requirement for Promulgation of Regulations

Sec.  52.13 A paragraph in a general appropriation bill providing that 
    appropriations in the bill available for travel expenses shall be 
    available for expenses of attendance of officers and employees at 
    meetings or conventions ``under regulations prescribed by the 
    Secretary,'' was conceded to be legislation and held not in order.

        On May 2, 1951,(18) during consideration in the 
    Committee of the Whole of the Interior Department appropriation 
    bill (H.R. 3790), a point of order was raised against the following 
    provision:
---------------------------------------------------------------------------
18. 97 Cong. Rec. 4738, 82d Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Sec. 104. Appropriations in this act available for travel 
        expenses shall be available, under regulations prescribed by 
        the Secretary, for expenses of attendance of officers and 
        employees at meetings or conventions of members of societies or 
        associations concerned with the work of the bureau or office 
        for which the appropriation concerned is made.

        Mr. [Kenneth B.] Keating [of New York]: Mr. Chairman, I make 
    the point of order against section 104 that it is legislation on an 
    appropriation bill and involves additional duties.
        The Chairman: (19) Does the Chair understand that 
    the gentleman from New York raises objection to the para

[[Page 6079]]

    graph because of the use of the language ``under regulations 
    prescribed by the Secretary'' in lines 18 and 19?
---------------------------------------------------------------------------
19. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------

        Mr. Keating: I do object to those words, and feel that that 
    makes the section out of order as it now stands, but I would still 
    press the point of order even with those words eliminated.
        Mr. [Henry M.] Jackson of Washington: I wonder if the gentleman 
    would accept the section if it remains as is except for the 
    elimination of the words ``under regulations prescribed by the 
    Secretary.''
        Mr. Keating: I feel that even with the elimination of those 
    words it would still involve legislation on an appropriation bill, 
    for exactly the same reasons for which the Chair has held section 
    102 subject to a point of order.
        Mr. Jackson of Washington: Mr. Chairman, I concede the point of 
    order.
        The Chairman: The point of order is sustained.

To the Extent the Secretary Finds Necessary

Sec.  52.14 In an appropriation bill, providing funds for grants to 
    states for unemployment compensation, language stating ``only to 
    the extent that the Secretary finds necessary,'' was held to impose 
    additional duties and to be legislation on an appropriation bill 
    and not in order.

        On Mar. 27, 1957,(20) during consideration in the 
    Committee of the Whole of the Departments of Labor, and Health, 
    Education, and Welfare appropriation bill (H.R. 6287), a point of 
    order was raised against the following provision:
---------------------------------------------------------------------------
20. 103 Cong. Rec. 4559, 4560, 85th Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Grants to States for unemployment compensation and 
        employment service administration: For grants in accordance 
        with the provisions of the act of June 6, 1933, as amended (29 
        U.S.C. 49-49n), for carrying into effect section 602 of the 
        Servicemen's Readjustment Act of 1944, for grants to the States 
        as authorized in title III of the Social Security Act, as 
        amended (42 U.S.C. 501-503), including, upon the request of any 
        State, the purchase of equipment, and the payment of rental for 
        space made available to such State in lieu of grants for such 
        purpose, for necessary expenses including purchasing and 
        installing of air-conditioning equipment in connection with the 
        operation of employment office facilities and services in the 
        District of Columbia, and for expenses not otherwise provided 
        for, necessary for carrying out title IV of the Veterans' 
        Readjustment Assistance Act of 1952 (66 Stat. 684) and title XV 
        of the Social Security Act, as amended (68 Stat. 1130), $262 
        million, [of which $12 million shall be available only to the 
        extent that the Secretary finds necessary to meet increased 
        costs of administration resulting from changes in a State law 
        or increases in the numbers of claims filed and claims paid for 
        increased salary costs resulting from changes in State salary 
        compensation plans embracing employees of the State generally 
        over those upon which the State's basic grant (or the 
        allocation for the District of Columbia) was based, which 
        increased costs of administration cannot be provided for by 
        normal budgetary adjustments:] . . .

        Mr. [John] Taber [of New York]: Mr. Chairman, a point of order.

[[Page 6080]]

        The Chairman: (1) The gentleman will state it.
---------------------------------------------------------------------------
 1. Aime J. Forand (R.I.).
---------------------------------------------------------------------------

        Mr. Taber: Mr. Chairman, I make the point of order against the 
    language beginning after the first figure in line 5, with the words 
    ``of which'' down to the word ``adjustments'', in line 15, as 
    legislation upon an appropriation bill and not authorized by law.
        The Chairman: Does the gentleman from Rhode Island wish to be 
    heard on the point of order?
        Mr. [John E.] Fogarty [of Rhode Island]: I do, Mr. Chairman. 
    This language has been carried in the bill for about 10 years, I 
    think. It was first put in, I believe, under the leadership of Mr. 
    Keefe when he was chairman of this subcommittee because we thought 
    it was in the form of a limitation on an appropriation bill and 
    would discourage supplementals and deficiencies that had previously 
    occurred. This $12 million was set aside for the specific reason of 
    taking care of unseen workloads that developed during the year and 
    increased States salaries which by law we are bound to provide when 
    the States increase salaries. So, in order to provide a fund like 
    this that would prevent them from coming back with supplementals 
    each year we agreed on this language. It was the intention of the 
    committee to be a limitation upon an appropriation.
        Mr. Taber: Mr. Chairman, I should like to add to my point of 
    order that it requires additional duties of the Secretary.
        The Chairman: The Chair is ready to rule.
        The gentleman from New York makes the point of order that the 
    words referred to, beginning in line 5 and ending in line 15, are 
    legislation on an appropriation bill.
        The Chair has studied the legislation and finds in agreement 
    with the statement of the gentleman from New York that additional 
    duties are imposed upon the Secretary, as shown in line 6, which 
    reads, ``that the Secretary finds necessary,'' and so forth. 
    Therefore, the Chair must uphold the point of order.

Mandating Contracting Practices

Sec.  52.15 To the Departments of State, Justice, Commerce, and the 
    Judiciary appropriation bill an amendment providing that ``all 
    repair and overhaul on Civil Aeronautics Administration airplanes 
    costing more than $100 shall be done on contract after submission 
    of bids'' was held to be legislation on an appropriation bill and 
    not in order.

    On May 3, 1946,(2) during consideration in the Committee 
of the Whole of a general appropriation bill (H.R. 6056), a point of 
order was raised against the following amendment:
---------------------------------------------------------------------------
 2. 92 Cong. Rec. 4424, 4425, 79th Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [Jennings] Randolph [of West Virginia]: Mr. Chairman, I 
    offer an amendment.
        The Clerk read as follows:

[[Page 6081]]

            Amendment offered by Mr. Randolph:
            On page 56, line 25, strike out ``$1,500,000'' and insert 
        ``$1,200,000.''
            On page 57, line 9, strike out the period, insert a colon 
        and the following: ``Provided, That no funds in this paragraph 
        shall be expended for the pay of any employees of the Civil 
        Aeronautics Administration for the maintenance of more than one 
        parts warehouse, nor for the repair or overhaul of aircraft 
        costing more than $100 per airplane: And provided further, That 
        all repair and overhaul on Civil Aeronautics Administration 
        airplanes costing more than $100 shall be done on contract 
        after submission of bids. . . .''

        Mr. [Louis C.] Rabaut [of Michigan]: Mr. Chairman, I insist on 
    my point of order. The amendment is a directive under the guise of 
    a limitation in the last proviso.
        The Chairman: (3) Does the gentleman from West 
    Virginia desire to be heard on the point of order?
---------------------------------------------------------------------------
 3. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------

        Mr. Randolph: Not at this point.
        The Chairman: The Chair is prepared to rule.
        Mr. Randolph: I am ready to hear the Chair.
        The Chairman: The gentleman from West Virginia offers an 
    amendment to page 56, line 25, and page 57, line 9, to the bill 
    H.R. 6056. The amendment down to and including the word 
    ``airplanes'' and the comma, is perhaps nothing more than a 
    limitation and in order. The language following the comma after the 
    word ``airplane'' seems to require of the Civil Aeronautics 
    Administration other responsibilities and to impose additional 
    duties upon that agency of Government. Therefore it would be 
    legislation and subject to a point of order. The Chair sustains the 
    point of order.

Requiring Subjective Determination of ``Full Benefit''

Sec. 52.16 An amendment in the form of a limitation prohibiting use of 
    an appropriation for promulgation of orders establishing wholesale 
    prices on commodities to be sold at retail which do not give all 
    retail distributors full benefit of the lowest wholesale prices 
    established for any retail distributor was held to impose 
    affirmative duties not already in the law and therefore not in 
    order.

    On June 18, 1943,(4) the Committee of the Whole was 
considering H.R. 2968, a war agencies appropriation bill. The Clerk 
read as follows:
---------------------------------------------------------------------------
 4. 89 Cong. Rec. 6126, 6127, 78th Cong. 1st Sess.
---------------------------------------------------------------------------

        Amendment offered by Mr. August H. Andresen [of Minnesota]: At 
    the end of the paragraph on page 13 insert the following language: 
    ``Provided further, That no part of this appropriation shall be 
    used for the promulgation of orders or directives establishing 
    wholesale prices on commodities to be sold at retail, which do not 
    give all retail distributors the full benefit of the lowest 
    wholesale price established for any retail distributor.''

[[Page 6082]]

        Mr. [Clarence] Cannon of Missouri: Mr. Chairman, I make a point 
    of order against the amendment on the ground that under the guise 
    of limitation it proposes affirmative legislation. It is a 
    proposition to restrict executive discretion. It constitutes 
    legislation and is not in order on an appropriation bill. . . .
        The Chairman: (5) The Chair is ready to rule. . .
---------------------------------------------------------------------------
 5. John J. Sparkman (Ala.).
---------------------------------------------------------------------------

        The Chair calls the attention of the committee to the fact that 
    the language attempted to be inserted by the amendment of the 
    gentleman from Minnesota really divides itself into two parts and 
    in order that the Members may understand it the Chair will read the 
    amendment for the information of the committee:

            Provided further, That no part of this appropriation shall 
        be used for the promulgation of orders or directives 
        establishing wholesale prices on commodities and articles sold 
        at retail, which do not give all retail distributors the full 
        benefit of the lowest wholesale price established for any 
        retail distributor.

        The Chair is of opinion that the first part of the amendment 
    ending with the comma, were it offered alone, would be a limitation 
    within the rules of the House and would not be subject to a point 
    of order; but when the latter part is added, it goes beyond the 
    point of a limitation and imposes upon the officials charged with 
    the administration of this act certain affirmative duties and is 
    subject to a point of order.
        The point of order is therefore sustained.

Requiring Determination That Recipient ``Participates, Cooperates, or 
    Supports''

Sec. 52.17 To a general appropriation bill providing funds, inter alia, 
    for a national foundation on the arts, an amendment prohibiting 
    payment of such funds to any person or organization which supports 
    any action resulting in the destruction of a structure of historic 
    or cultural significance [thus requiring the official administering 
    the program to make certain new determinations], was held to impose 
    additional duties and was ruled out as legislation.

        On Apr. 5, 1966, (6) during consideration in the 
    Committee of the Whole of the Interior Department appropriation 
    bill (H.R. 14215), a point of order was raised against the 
    following amendment:
---------------------------------------------------------------------------
 6. 112 Cong. Rec. 7688, 7689, 89th Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [William B.] Widnall [of New Jersey]: Mr. Chairman, I offer 
    an amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Widnall: Page 42, before the 
        period in line 2, insert the following: ``Provided further, 
        That the amounts appropriated under this paragraph shall be 
        available to any organization, or entity, only on condition 
        that not more than 12\1/2\ percent of the

[[Page 6083]]

        amount so made available be expended in any one State: And 
        provided further, That no part of any amount appropriated under 
        this paragraph shall be used to make grants to any 
        organization, or entity, or to pay the salary of (or to cover 
        expenses incurred by) any person who, or organization which, in 
        his, or its, official, or unofficial capacity, participates in, 
        cooperates with, or supports any action which could result in 
        the destruction of any structure, or place, of local or 
        national historic or cultural significance, including the 
        Metropolitan Opera House located at 39th Street and Broadway in 
        New York City''.

        Mr. [Winfield K.] Denton [of Indiana]: Mr. Chairman, I make a 
    point of order against the amendment.
        The Chairman: (7) The gentleman will state the point 
    of order.
---------------------------------------------------------------------------
 7. Charles M. Price (Ill.).
---------------------------------------------------------------------------

        Mr. Denton: Mr. Chairman, this changes existing legislation. It 
    provides that there should be quotas among the States when the 
    existing legislation does not contain such a provision. This is 
    legislation that changes existing legislation.
        The Chairman: Does the gentleman from New Jersey desire to be 
    heard on the point of order?
        Mr. Widnall: Mr. Chairman, I believe this is a type of 
    amendment that has been accepted before on similar legislation. It 
    seeks to protect the interests of the States in these grants and in 
    the distribution of funds under this program. I think it is a very 
    equitable amendment and should be accepted by the Committee.
        The Chairman: The Chair is prepared to rule.
        This amendment would impose new duties on the officials charged 
    with the administration of this program in determining whether 
    grants should be made to any person or organization which 
    participates and cooperates with or supports any action which could 
    result in the destruction of any structure or place of local or 
    national historic or cultural significance.
        For the reasons above stated, the amendment is obviously 
    legislation on an appropriation bill.
        The Chair sustains the point of order.

New Determinations Not Required by Law in Making Allocation of Funds

Sec. 52.18 Where existing law (20 USC Sec. 238) provides, in its 
    allotment formula for determining entitlements of local educational 
    agencies to a certain category of assistance in federally affected 
    areas, that the Commissioner shall determine the ``number of 
    children who . . . resided with a parent employed on federal 
    property situated in the same State as such agency or situated 
    within reasonable commuting distance from the school district of 
    such agency'', an amendment to an appropriation bill containing 
    funds for ``impacted school assistance'' prohibiting the use of 
    funds in that bill for assistance ``for children whose parents are 
    em

[[Page 6084]]

    ployed on Federal property outside the school district of such 
    agency'' was held to impose the additional duty on federal 
    officials of determining whether the parent was employed within the 
    school district and was ruled out as legislation in violation of 
    Rule XXI clause 2.

    On June 26, 1973,(8) during consideration in the 
Committee of the Whole of the Departments of Labor, and Health, 
Education, and Welfare appropriation bill (H.R. 8877), a point of order 
was raised against the following amendment, and proceedings ensued as 
indicated below:
---------------------------------------------------------------------------
 8. 119 Cong. Rec. 21393, 21394, 93d Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Amendment offered by Mr. [William] Lehman [of Florida]: 
        Page 19, line 19, after ``Act'' insert the following: ``: 
        Provided further, That none of the funds contained herein shall 
        be available to make any payment to a local educational agency 
        under the Act of September 30, 1950, which is attributable to 
        children described in section 3(b) of title I whose parents are 
        employed on Federal property outside the school district of 
        such agency''.

        Mr. [Daniel J.] Flood [of Pennsylvania]: Mr. Chairman, a point 
    of order.
        The Chairman: (9) The gentleman will state it.
---------------------------------------------------------------------------
 9. Chet Holifield (Calif.).
---------------------------------------------------------------------------

        Mr. Flood: Mr. Chairman, I make a point of order against the 
    amendment on the ground that it is legislation on an appropriation 
    bill.
        First, Mr. Chairman, this amendment would change the existing 
    law in that it would distinguish between children whose parents 
    work in a key school district and children whose parents work 
    outside the school district. The present law which we have makes 
    absolutely no such distinction.
        The second point, Mr. Chairman, is that this would obviously 
    impose additional duties upon whatever Federal officials there are 
    in the entire program and would require them to establish 
    procedures with all sorts of red tape to determine where the place 
    of work is, whether they work there or not, whether the parents 
    were in the school district or not.
        Such procedures do not exist in the law because they are not 
    required under present law. . . .
        Mrs. [Patsy T.] Mink [of Hawaii]: Mr. Chairman, I rise in 
    support of the point of order made by the chairman of the 
    subcommittee of the Appropriations Committee against the amendment 
    offered by the gentleman from Florida (Mr. Lehman). Mr. Chairman, 
    the point of order I wish to concur in is that the language of the 
    amendment is legislation in an appropriation bill. It requires a 
    different method of allocating funds to eligible school districts 
    than that provided in the authorizing legislation, Public Law 81-
    874.
        Mr. Chairman, I realize that the gentleman from Florida has 
    carefully phrased his amendment in an attempt to avoid this 
    prohibition in clause 2 of rule XXI. But in this attempt, the 
    gentleman has failed. The exception to the rule dealing with a 
    retrenchment of

[[Page 6085]]

    appropriations is subject to the qualification that it must not 
    impose additional administrative burdens and ministerial duties on 
    the administration in carrying out the basic law for which the 
    appropriation is made. In this regard, Mr. Chairman, I call 
    attention to the annotations to rule XXI, clause 2, appearing on 
    page 472 of the House Rules and Manual for the 93d Congress in 
    which it is noted:

            But such limitations must not give affirmative directions 
        (IV, 3854-3859, 3975; VII, 1637), and must not impose new 
        duties upon an executive officer (VII, 1676; July 31, 1969, p. 
        21631-33; June 11, 1968, p. 16712), and must not be coupled 
        with legislation not directly instrumental in affecting a 
        reduction (VII, 1555, 1557).

        I have checked to determine whether or not any additional 
    ministerial duties will be required in carrying out the amendment 
    offered by the gentleman from Florida and I am advised that this 
    will require administrators of the program to make an additional 
    extraction from survey data gathered from parents to determine 
    whether or not the place of work of the parent is located within or 
    without the school district.
        Mr. Chairman, this is not a simple task. In many school 
    systems, these survey forms run into many thousands and nationwide, 
    this would multiply this ministerial task by each of the several 
    thousand school districts participating in Public Law 91-874.
        The ruling which I seek is consistent with the rulings of the 
    Chair June 26, 1968, February 19, 1970, and April 14, 1970, found 
    on pages H18894, H1088, and H3036 of the Congressional Record for 
    those respective dates. I urge that the Chair sustain the point of 
    order. . . .
        Mr. [Sidney R.] Yates [of Illinois]: I suggest, Mr. Chairman, 
    this is an appropriate retrenchment under the Holman Rule and that 
    the legislation is appropriate under that rule.
        The Chairman: . . . The Chair feels that while the amendment is 
    in the form of a limitation it also would require additional 
    determinations not now required by law. Since it would require 
    additional duties, the amendment is legislation on the 
    appropriation bill and not in order.
        The Chair sustains the point of order.

    Parliamentarian's Note: It should be emphasized that the provisions 
in question above did not comprise a negative prohibition on the 
availability of funds for an otherwise eligible class of recipients, 
but rather a redefinition of the entire class, contrary to that class 
of eligible recipients found in existing law. See also Sec. Sec. 36.8-
36.12, supra, for discussion of other examples of provisions affecting 
allocation of educational assistance.

New Direction in Fund Distribution Not Required by Law

Sec. 52.19 A provision in an amendment to a general appropriation bill 
    denying the use of any funds for im

[[Page 6086]]

    pacted school aid until the official allocating the funds makes an 
    apportionment thereof contrary to the formula prescribed by 
    existing law was held to impose additional duties upon that 
    official, thus changing existing law and constituting legislation 
    on an appropriation bill.

    On Apr. 14, 1970,(10) during consideration in the 
Committee of the Whole of the Education Department appropriation bill 
(H.R. 16916), a point of order was raised against the following 
amendment:
---------------------------------------------------------------------------
10. 116 Cong. Rec. 11676, 11677, 91st Cong. 2d Sess.
---------------------------------------------------------------------------

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

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

                          Title I--Office of Education

                 school assistance in federally affected areas

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

        Mr. [James G.] O'Hara [of Michigan]: Then I make a point of 
    order against the amendment offered by the gentleman from Illinois.
        The Chairman: (11) The Chair will hear the gentleman 
    on the point of order.
---------------------------------------------------------------------------
11. Chet Holifield (Calif.).
---------------------------------------------------------------------------

        Mr. O'Hara: Mr. Chairman, the point of order against the 
    amendment offered by the gentleman from Illinois is that it 
    contains legislation in an appropriation bill, to wit, the language 
    on page 2, lines 6 to 12 is clearly legislation on an appropriation 
    bill providing for different dispositions of funds under those 
    sections than are provided by law. Therefore I make a point of 
    order against the amendment offered by the gentleman from Illinois. 
    . . .
        Mr. [Daniel J.] Flood [of Pennsylvania]: Mr. Chairman, it is as 
    plain as the nose on my face, and I have got a nose, that this is 
    clearly a limitation upon the expenditure of funds. That is clearly 
    it. I suggest the point must be overruled.
        The Chairman: Does the gentleman from Michigan desire to be 
    heard further?
        Mr. O'Hara: Mr. Chairman, I would like to be heard. I would 
    like to say

[[Page 6087]]

    first, Mr. Chairman, if the proviso to which I have referred 
    authorizes the use on a different formula than that provided in the 
    basic authorizing legislation, and I do not believe that the 
    proviso is a limitation or retrenchment of appropriations which 
    would be an expansion, the proviso is neither a limitation nor 
    retrenchment of appropriations, because it permits payment to be 
    made in excess of the payments authorized by the above quoted 
    section of Public Law 81-874.
        It may be helpful to the Chairman and to my colleagues in 
    understanding the point that the reference contained in section 
    5(c) just quoted, that various other sections of entitlements to 
    payments are to the so-called familiar references to categories A 
    and B children under impacted aid.
        The Chairman: The Chair is prepared to rule. The gentleman from 
    Michigan (Mr. O'Hara), has raised a point of order against the 
    proviso appearing in the amendment in the nature of a substitute 
    and referred to in the original bill as the proviso on page 2 of 
    the bill on the ground that it constitutes legislation on an 
    appropriation bill in violation of clause 2, rule XXI. That proviso 
    would make appropriations in the bill unavailable for payment to 
    local educational agencies pursuant to the provisions of any other 
    section of title I of the act of September 30, 1950--which 
    authorizes school assistance in federally affected areas--until 
    payment has been made of 90 percent of entitled allotments pursuant 
    to section 3(a) of said title I and of 100 percent of amounts 
    payable under section 6 of that title. The gentleman from Michigan 
    contends that such a requirement for payments of funds appropriated 
    in this bill has the effect of changing the allotment formula in 
    the authorizing legislation of funds for ``category A students,'' 
    and is therefore legislation on an appropriation bill prohibited by 
    clause 2, rule XXI.
        On June 26, 1968, during consideration of the Department of 
    Labor and Health, Education, and Welfare appropriation bill for 
    fiscal year 1969, the Chair--the gentleman now occupying it--
    sustained a point of order against an amendment prohibiting the use 
    of funds in the bill for educationally deprived children until 
    there was made available therefrom for certain local educational 
    agencies an amount at least equal to that allotted in the preceding 
    year, since that amendment would have required the Commissioner of 
    Education to make an apportionment of appropriated funds contrary 
    to the formula prescribed by existing law, thus imposing additional 
    duties on that official and changing existing law.
        The Chair feels that that decision is controlling in this 
    instance. To make the appropriations authorized under certain 
    sections of the ``impacted school aid'' legislation contingent upon 
    allotment of certain percentages of entitled funds under other 
    sections of that authorizing legislation is to impose additional 
    duties on the official making the allotment and to change the 
    enforcement formula in the authorizing legislation is in violation 
    of clause 2, rule XXI.
        The Chair therefore sustains the point of order.

Requiring Investigation

Sec. 52.20 To an appropriation bill an amendment imposing

[[Page 6088]]

    new conditions and formulas for determining amounts to be charged 
    as rent for public housing units was held to alter existing law and 
    ruled out of order as legislation on an appropriation bill.

    On Mar. 20, 1952,(12) during consideration in the 
Committee of the Whole of the independent offices appropriation bill 
(H.R. 7072), a point of order was raised against the following 
provision:
---------------------------------------------------------------------------
12.  98 Cong. Rec. 2638, 2639, 82d Cong. 2d Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Amendment offered by Mr. [Hubert B.] Scudder [of 
        California]: On page 24, after line 6, insert the following: 
        ``Provided further, That the Public Housing Administration 
        shall investigate the income of the occupants of each housing 
        unit, and the rental for each such unit shall be the rental 
        established by law or 20 percent of the total income of the 
        occupants thereof, whichever is the greater.''

        Mr. [Albert] Thomas [of Texas]: Mr. Chairman, I make a point of 
    order against the amendment, but I reserve it at this time. . . .
        The Chairman: (13) The Chair is ready to rule.
---------------------------------------------------------------------------
13. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------

        The gentleman from California has offered an amendment, to 
    which the gentleman from Texas [Mr. Thomas] makes a point of order.
        The Chair has had an opportunity to examine the amendment 
    offered by the gentleman from California, and is of the opinion 
    that the amendment proposes to add new conditions regarding 
    determination of rentals of public housing thus altering existing 
    law. The amendment also would impose additional duties not required 
    by existing law upon housing officials.
        It is the opinion of the Chair, therefore, that the amendment 
    is legislation on an appropriation bill and the point of order is 
    sustained.

Affirmative Directive to Recipient of Funds; Imposing Duty to Monitor 
    Actions of Recipients

Sec. 52.21 An amendment to an appropriation bill in the form of a 
    limitation not negative in effect (rather: providing that none of 
    the funds appropriated would be used for support of military 
    training courses in civil schools unless the authorities of such 
    institutions make known to prospective students certain 
    information) was held to be legislation and not in order.

    On Feb. 14, 1936,(14) the Committee of the Whole was 
considering H.R. 11035, a War Department appropriation bill. At one 
point the Clerk read as follows:
---------------------------------------------------------------------------
14. 80 Cong. Rec. 2091-94, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

        For the procurement, maintenance, and issue, under such 
    regulations as

[[Page 6089]]

    may be prescribed by the Secretary of War, to institutions at which 
    one or more units of the Reserve Officers' Training Corps are 
    maintained, of such public animals, means of transportation, 
    supplies, tentage, equipment, and uniforms as he may deem necessary 
    . . . $4,067,996; of which $400,000 shall be available immediately: 
    . . . Provided further, That none of the funds appropriated 
    elsewhere in this act, except for printing and binding and pay and 
    allowances of officers and enlisted men of the Regular Army, shall 
    be used for expenses in connection with the Reserve Officers' 
    Training Corps.
        Mr. [Fred] Biermann [of Iowa]: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Biermann: On page 59, line 6, 
        after the word ``corps'', insert ``Provided further, That none 
        of the funds appropriated in this act shall be used for or 
        toward the support of military training courses in any civil 
        school or college the authorities of which choose to maintain 
        such courses on a compulsory basis, unless the authorities of 
        such institutions provide, and make known to all prospective 
        students by duly published regulations, arrangements for the 
        unconditional exemption from such military courses, and without 
        penalty, for any and all students who prefer not to participate 
        in such military courses because of convictions conscientiously 
        held, whether religious, ethical, social, or educational, 
        though nothing herein shall be construed as applying to 
        essentially military schools or colleges.''

        Mr. [Tilman B.] Parks [of Arkansas]: Mr. Chairman, I make the 
    point of order that the amendment is legislation on an 
    appropriation bill and is in no sense a limitation. . . .
        Mr. Biermann: Mr. Chairman, the purpose of this amendment is to 
    make an exception of the compulsory feature of this military 
    training for those students who have a genuine conscientious 
    scruple against taking military training. The amendment is of the 
    same piece of cloth as the amendment of the gentleman from New York 
    [Mr. Marcantonio], which has been ruled in order many times in this 
    House.
        The Chairman: (15) The Chair is ready to rule. The 
    first part of the amendment offered by the gentleman from Iowa is 
    very much the same as the amendment offered by the gentleman from 
    New York [Mr. Marcantonio], but there is further language in the 
    amendment offered by the gentleman from Iowa which involves 
    legislation which is as follows:
---------------------------------------------------------------------------
15. Claude V. Parsons (Ill.).
---------------------------------------------------------------------------

            That unless the authorities of such institutions provide 
        and make known to all prospective students by duly published 
        regulation--

        And so forth. That is an affirmative command and direction to 
    the officers of the institution. The Chair thinks the amendment is 
    not in order because it provides legislation on an appropriation 
    bill, and, therefore, sustains the point of order.

Sec. 52.22 To a paragraph of an appropriation bill making 
    appropriations for soil conservation payments, an amendment 
    providing that no payment in excess of $1,000 shall be paid to any 
    one person or corporation

[[Page 6090]]

    unless at least one-half of the amounts so paid shall be paid to 
    sharecroppers or renters of farms for which payments are made was 
    held to be legislation and not in order, in that, under the guise 
    of a limitation it provided affirmative directions that imposed new 
    duties.

    On Mar. 28, 1939,(16) the Committee of the Whole was 
considering H.R. 5269, an Agriculture Department appropriation bill. 
The Clerk read as follows:
---------------------------------------------------------------------------
16. 84 Cong. Rec. 3427, 3428, 76th Cong. 1st Sess.
---------------------------------------------------------------------------

        Amendment offered by Mr. [Francis H.] Case of South Dakota: 
    Page 89, line 9, after the colon, insert ``Provided further, That 
    of the funds in this paragraph no payment in excess of $1,000 shall 
    be paid for any one farm operated by one person: Provided further, 
    That no payment in excess of $1,000 shall be paid to any one person 
    or corporation unless at least one-half of the amounts so paid 
    shall be paid to sharecroppers or renters of farms for which 
    payments are made.''. . .
        Mr. [Clarence] Cannon of Missouri: Mr. Chairman, I make the 
    point of order against the amendment proposed by the gentleman from 
    South Dakota that it is legislation under the guise of a 
    limitation. . . .
        Mr. Case of South Dakota: Mr. Chairman, this amendment is a 
    limitation on payments; and in the present instance one would have 
    to turn from the gentleman from Missouri as chairman of the 
    subcommittee to the gentleman from Missouri as parliamentarian. The 
    Chair will find the following on page 62 of Cannon's Procedure:

            As an appropriation bill may deny an appropriation for a 
        purpose authorized by law, so it may by limitation prohibit the 
        use of money for part of the purpose while appropriating for 
        the remainder of it. It may not legislate as to qualifications 
        of recipients, but may specify that no part shall go to 
        recipients lacking certain qualifications.

        In this particular instance the qualification is set up for the 
    landlord that he shall give at least half this payment to his 
    sharecropper or renter. Viewed in this light I believe the Chair 
    will find it is a pure limitation.
        Mr. Cannon of Missouri: Mr. Chairman, the proposed amendment 
    couples with the purported limitation affirmative directions and is 
    legislation in the guise of a limitation.
        The Chairman: (17) Cannon's Precedents, page 667, 
    volume 7, 1936, section 1672, states:
---------------------------------------------------------------------------
17. Wright Patman (Tex.).
---------------------------------------------------------------------------

            An amendment may not under guise of limitation provide 
        affirmative directions which impose new duties.

        The last part of the pending amendment states:

            Unless at least one-half of the amount so paid shall be 
        paid to these croppers or renters of farms for which payments 
        are made.

        It is the opinion of the Chair that this requires affirmative 
    action; therefore the point of order is sustained.

[[Page 6091]]

Limitation is Negative, Not Affirmative Direction

Sec. 52.23 A limitation on a general appropriation bill must be in 
    effect a negative prohibition which proposes an easily discernible 
    standard for determining the application of the use of funds, and 
    not an affirmative direction to an executive officer.

    On May 5, 1960,(18) The Committee of the Whole was 
considering H.R. 11998, a Defense Department appropriation bill. The 
Clerk read as follows:
---------------------------------------------------------------------------
18. 106 Cong. Rec. 9641, 86th Cong. 2d Sess.
---------------------------------------------------------------------------

        Amendment offered by Mr. [James G.] O'Hara of Michigan: On page 
    45, after line 6, insert the following:
        ``Sec. 535. No funds appropriated in this Act shall be used to 
    pay any amount under a contract, made after the date of enactment 
    of this Act, which exceeds the amount of a lower bid if such 
    contract would have been awarded to the lower bidder but for the 
    application of any policy which favors the award of such a contract 
    to a person proposing to perform it in a facility not owned by the 
    United States.''
        Mr. [Gerald R.] Ford [of Michigan]: Mr. Chairman, I am 
    constrained to make a point of order against the amendment offered 
    by the gentleman from Michigan [Mr. O'Hara]. It seems to me this 
    language is clearly subject to a point of order in that it imposes 
    additional duties on the Secretary of Defense. . . .
        Mr. O'Hara of Michigan: Mr. Chairman, I would like to suggest 
    in connection with the point of order that this is a limitation on 
    an appropriation. It does not attempt to impose any additional 
    duties on the executive branch nor does it attempt to legislate in 
    an appropriation bill.
        The Chairman: (19) The Chair is ready to rule. . . .
---------------------------------------------------------------------------
19. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------

        The Chair calls the attention of the committee to previous 
    rulings made on similar points of order and would like in addition 
    to call to the attention of the Committee the ruling that appears 
    in 4 Hinds' Precedents, page 660, in which it is clearly indicated 
    that a limitation is permitted on a general appropriation bill that 
    in effect provides a negative prohibition on the use of the money, 
    and no affirmative direction on the executive branch.
        In the opinion of the Chair, the language here offered is a 
    negative prohibition and the Chair, therefore, overrules the point 
    of order.(20)
---------------------------------------------------------------------------
20. 4 Hinds' Precedents Sec. 3975. See also id. at Sec. 3968, where 
        discussion is had concerning the proposition that limitations 
        must be a negative restriction on the use of money and not an 
        affirmative direction to an executive officer. See also 7 
        Cannon's Precedents Sec. 1694.
---------------------------------------------------------------------------

Requiring Special Screening of Each Loan Application

Sec. 52.24 Language in the Agriculture Department appro

[[Page 6092]]

    priation bill in the form of a limitation which provided in effect 
    that no part of the appropriation shall be paid to any employee of 
    the department or agencies thereof to engage in the execution of 
    any loan which has not first been offered to and refused by private 
    lending agencies customarily engaged in making such loans at 
    comparable rates, was held to provide additional functions for 
    employees not required under existing law to determine customary 
    loan practices, and therefore legislation on an appropriation bill.

    On Apr. 19, 1943,(1) during consideration in the 
Committee of the Whole of the Agriculture Department appropriation bill 
(H.R. 2481), a point of order was raised against the following 
provision:
---------------------------------------------------------------------------
 1. 89 Cong. Rec. 3600, 3601, 78th Cong. 1st Sess.
---------------------------------------------------------------------------

        Sec. 8. None of the funds herein appropriated or authorized 
    hereby to be expended shall be used to pay the compensation or 
    expenses of any officer or employee of the Department of 
    Agriculture, or of any bureau, office, agency, or service of the 
    Department or any corporation, institution, or association 
    supervised thereby, who engages in, or directs or authorizes any 
    other officer or employee of the Department or of any such bureau, 
    office, agency, service, corporation, institution, or association 
    to engage in the negotiation, solicitation, or execution of any 
    loan which has not first been offered to and refused by the private 
    lending agencies customarily engaged in making loans of similar 
    character and at comparable rates in the region where such loan is 
    proposed to be made. . . .
        Mr. [John E.] Rankin [of Mississippi]: Mr. Chairman, I make a 
    point of order against section 8 on the ground that this section is 
    legislation on an appropriation bill. . . .
    Mr. [Clifford R.] Hope [of Kansas]: Mr. Chairman, I simply call the 
attention of the Chair to the fact that while many of the Government 
lending agencies or semi-Government lending agencies are not included 
in this bill, yet there are appropriations here for the Commodity 
Credit Corporation, the Rural Electrification Administration, and 
Federal Farm Mortgage Corporation, all of which make loans to farmers. 
If this provision stays in the bill it means that the officials of 
these organizations must in addition to the duties which are imposed 
upon them by law make an investigation in the case of every 
application, to determine whether or not the application has been 
offered to and refused by private lending agencies customarily engaged 
in making loans of a similar character in the region where the loan is 
to be made. It has been held time and time again that where a provision 
of this kind imposes duties upon a Federal official which are not 
required by law it is legislative in character and subject to a point 
of order. . . .

        The Chairman: (2) The Chair is ready to rule. . . .
---------------------------------------------------------------------------
 2. William M. Whittington (Miss.).

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

[[Page 6093]]

        The matter is not altogether free from doubt, but in view of 
    the language of section 8, and in view of the additional duties 
    imposed and the additional determinations that must be made, it 
    seems to the Chair that such language is legislative in character. 
    Therefore the Chair sustains the point of order.

Requirement of Satisfactory Performance as Condition Precedent

Sec. 52.25 An amendment to a general appropriation bill in the form of 
    a limitation providing that no part of the money therein 
    appropriated shall be paid to any state unless and until the 
    Secretary of Agriculture was satisfied that state had complied with 
    certain conditions was held to be legislation imposing new 
    discretionary authority on a federal official.

    On Apr. 23, 1937,(3) during consideration in the 
Committee of the Whole of the Agriculture Department appropriation bill 
(H.R. 6523), a point of order was raised against the following 
amendment:
---------------------------------------------------------------------------
 3. 81 Cong. Rec. 3783, 3784, 75th Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Amendment offered by Mr. [Jesse P.] Wolcott [of Michigan]: 
        Page 72, line 13, after the word ``probation'', insert 
        ``Provided further, That no part of the money herein 
        appropriated shall be paid to any State unless and until, to 
        the satisfaction of the Secretary of Agriculture, such State 
        shall have provided by law or regulation modern means and 
        devices to safeguard against accidents and the loss of life on 
        highway projects within such State.''

        Mr. [Clarence] Cannon of Missouri: Mr. Chairman, I make the 
    point of order against the amendment. It is legislation under the 
    guise of a limitation. The amendment provides affirmative direction 
    which is clearly legislation on an appropriation bill.
        Mr. Wolcott: Mr. Chairman, I would like to be heard on the 
    point of order.
        The Chairman: (4) The Chair will be pleased to hear 
    the gentleman from Michigan.
---------------------------------------------------------------------------
 4. Franklin W. Hancock, Jr. (N.C.).
---------------------------------------------------------------------------

        Mr. Wolcott: Mr. Chairman, I call the attention of the Chair to 
    the fact we have previously authorized appropriations to be made 
    under the Federal Highway Act which was passed and approved by the 
    President on July 11, 1916. Yearly there is authorized under that 
    act an appropriation of $125,000,000 which is disbursed according 
    to regulations set up not only by the Congress in the organic act 
    but also by regulations of the Bureau of Public Roads. If the 
    Bureau of Public Roads under the terms of the act can withhold any 
    funds which have been authorized by the Congress from any of the 
    States by reason of a regulation which it might set up, likewise 
    the Bureau can limit the expenditure within any State by providing 
    certain traffic safeguards to those using the highways as a 
    condition precedent to the spend

[[Page 6094]]

    ing of Federal funds in the construction and maintenance of 
    Federal-aid roads. For this reason my amendment is purely a 
    limitation upon the distribution among and the use of the highway 
    funds by the State.
        The Chairman: The Chair is ready to rule.
        The Chair sustains the point of order on the ground that 
    although the amendment is drawn in the guise of a limitation, it 
    constitutes new legislation in that it imposes additional duties 
    upon the Secretary.

Change of Official Authorized to Make Expenditure

Sec. 52.26 An amendment providing that certain funds for river and 
    harbor projects shall be allocated and expended by the Secretary of 
    War and the Chief of Engineers, rather than the Secretary upon the 
    advice of the Chief of Engineers as required by existing law, was 
    held to constitute a change in existing law and was therefore not 
    in order on an appropriation bill.

    On Feb. 14, 1936,(5) during consideration in the 
Committee of the Whole of the War Department appropriation bill (H.R. 
11035), a point of order was raised against the following amendment:
---------------------------------------------------------------------------
 5. 80 Cong. Rec. 2103, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [Joseph J.] Mansfield [of Texas]: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Mansfield: On page 68, after the 
        colon, at the end of line 10, insert the following:
            ``Provided further, That expenditures under this 
        appropriation for river and harbor improvements shall be 
        limited to projects that have heretofore been specifically 
        authorized by Congress and all projects so authorized shall be 
        taken under consideration by the Secretary of War and the Chief 
        of Engineers, and the funds shall be allocated and expended in 
        such manner as in their judgment will best serve the interests 
        of commerce and navigation.''

        Mr. [Tillman B.] Parks [of Arkansas]: Mr. Chairman, I desire to 
    make a point of order against that because it is legislation on an 
    appropriation bill.
        I invite the attention of the Chair to section 627 of title 
    XXXIII of the Code. The gist of that section is that when an 
    appropriation has been made in lump sum and there should be a 
    surplus for the projects the lump sum was intended to cover that, 
    that surplus may be applied to other authorized projects as 
    determined by the Secretary of War upon the advice of the Chief of 
    Engineers. I also cite the chairman's attention to section 622.
        Mr. Mansfield: Mr. Chairman, the amendment does not change 
    existing law. If the amendment is adopted, the money will be 
    expended just exactly as it has been expended ever since the Budget 
    was adopted. It is a limitation

[[Page 6095]]

    and not legislation. It simply provides that the money shall be 
    expended in the manner in which the law now prescribes.
        The Chairman: (6) The Chair is ready to rule. The 
    section quoted by the gentleman from Arkansas [Mr. Parks], 627 of 
    United States Code, title XXXIII, states how funds for river and 
    harbor improvements shall be expended. Among other things, it says 
    that the allotments to the respective works consolidated shall be 
    made by the Secretary of War upon recommendation by the Chief of 
    Engineers.
---------------------------------------------------------------------------
 6. Claude V. Parsons (Ill.).
---------------------------------------------------------------------------

        The language of this amendment is in order down to and 
    including the word ``Congress,'' but then it seeks to make 
    mandatory upon the Secretary of War and the Chief of Engineers the 
    allocation of these funds. The organic law provides that these 
    allocations shall be made by the Secretary of War and by him alone, 
    although upon the recommendation of the Chief of Engineers.
        The Chair thinks that it is legislation upon an appropriation 
    bill and therefore sustains the point of order.

Approval of Expenditure Rates

Sec. 52.27 Language in an appropriation bill making money available for 
    the hire of draft animals with or without drivers at local rates 
    approved by the director was held legislative in nature and not in 
    order.

    On May 19, 1937,(7) 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:
---------------------------------------------------------------------------
 7. 81 Cong. Rec. 4814, 75th Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Salaries and expenses, National Capital parks: For 
        administration, protection, maintenance, and improvement of the 
        Mount Vernon Memorial Highway, Arlington Memorial Bridge, 
        George Washington Memorial Parkway, Federal parks in the 
        District of Columbia, and other Federal lands authorized by the 
        act of May 29, 1930 (46 Stat. 482), including the pay and 
        allowances in accordance with the provisions of the act of May 
        27, 1924, as amended, of the police force for the Mount Vernon 
        Memorial Highway and the George Washington Memorial Parkway, 
        and the purchase of one passenger-carrying automobile and 
        operation, maintenance, repair, exchange, and storage of three 
        automobiles, revolvers, ammunition, uniforms, and equipment, 
        per-diem employees at rates of pay approved by the Director not 
        exceeding current rates for similar services in the District of 
        Columbia, the hire of draft animals with or without drivers at 
        local rates approved by the Director, traveling expenses and 
        carfare, and leather and rubber articles for the protection of 
        public property and employees, $176,000.

        Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of 
    order on the last paragraph. It creates additional duties and 
    imposes discretion in the Director of the Service. This language 
    appears on page 114, line 23. It

[[Page 6096]]

    imposes additional duties on the Director. . . .
        The Chairman: (8) The Chair inquires of the 
    gentleman as to whether or not this language is intended to 
    increase or add new duties to the Director?
---------------------------------------------------------------------------
 8. Jere Cooper (Tenn.).
---------------------------------------------------------------------------

        Mr. [Jed] Johnson of Oklahoma: I would say it does not, and 
    restricts the rates. It states they are not to exceed the current 
    rates.
        The Chairman: Are these draft animals hired now with or without 
    drivers?
        Mr. Johnson of Oklahoma: I am not sure I can give the Chair 
    that information.
        Mr. [James G.] Scrugham [of Nevada]: They are hired with or 
    without.
        The Chairman: The Chair is trying to ascertain whether or not 
    this changes existing law; that is, whether there is a change in 
    the method in which these animals have to be hired.
        Mr. Johnson of Oklahoma: It is my information at the present 
    time they are hired either way, with or without.
        The Chairman: What is the necessity for this language, then?
        Mr. Johnson of Oklahoma: I may say to the Chair it has been in 
    the appropriation bill several years and there have been no 
    changes.
        The Chairman: The fact it has been carried in previous bills 
    does not necessarily mean it is in order. Unless the gentleman can 
    cite some provision of law which would control the question, the 
    Chair is of the opinion that the point of order is good.
        In the absence of a citation, the Chair sustains the point of 
    order.

Travel Expenses and Attendance at Meetings at Discretion of Commission

Sec. 52.28 Appropriations for traveling expenses, including expenses of 
    attendance at meetings considered necessary by the National 
    Bituminous Coal Commission, in the exercise of its discretion, for 
    the efficient discharge of its responsibilities were held 
    authorized by a law permitting inclusion of such language in a 
    general appropriation bill.

    On Mar. 14, 1939,(9) 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:
---------------------------------------------------------------------------
9. 84 Cong. Rec. 2739, 2740, 76th Cong. 1st Sess.
---------------------------------------------------------------------------

        Salaries and expenses: For all necessary expenditures of the 
    National Bituminous Coal Commission in performing the duties 
    imposed upon said Commission by the Bituminous Coal Act of 1937, 
    approved April 26, 1937 (50 Stat. 72), including personal services 
    and rent in the District of Columbia and elsewhere; traveling 
    expenses, including expenses of attendance at meetings which, in 
    the discretion of the Commission, are necessary for the efficient 
    discharge of its responsibilities . . . $2,900,000. . . .

[[Page 6097]]

        Mr. [John] Taber [of New York]: Mr. Chairman, a point of order.
        The Chairman: (10) The gentleman will state it.
---------------------------------------------------------------------------
10. Frank H. Buck (Calif.).
---------------------------------------------------------------------------

        Mr. Taber: I make a point of order against the paragraph on the 
    ground it delegates additional power and discretion to the 
    Commission, and I call particular attention to lines 23, 24, and 25 
    of page 9, which also contain the words ``in the discretion of the 
    Commission.''
        It seems to me this makes an appropriation and leaves the 
    amount of the appropriation which shall be spent to the discretion 
    of the Commission or gives the Commission power to determine 
    whether the appropriation should be made. It is the same thing as 
    delegating authority to the Commission to make an appropriation, 
    and is clearly legislation.
        Mr. [Jed] Johnson of Oklahoma: Mr. Chairman, I desire to be 
    heard in opposition to the point of order.
        If the distinguished gentleman from New York will read title V, 
    section 83, he will find full and ample authority for the language 
    to which he objects. . . .
        The Chairman: The Chair is ready to rule. The Chair rules that 
    the inclusion of the words ``in the discretion of the Commission'' 
    is probably covered by the citation given by the gentleman from 
    Oklahoma [Mr. Johnson]. Title V, section 83, of the United States 
    Code provides:

            That no money appropriated by any act shall be expended for 
        membership fees or dues of any officer or employee of the 
        United States in any society or association, etc., or for the 
        expenses or attendance of any person at any meeting or 
        convention of members of any society or association unless such 
        fees, dues, or expenses are authorized to be paid by specific 
        appropriations for such purpose and are provided for in express 
        terms in some general appropriation.

        The language in the paragraph under consideration seems to 
    comply with that provision, and the point of order is overruled.

    Parliamentarian's Note: This statutory authority, now contained in 
5 USC Sec. 5946, and 5 USC Sec. 4110, also specifically authorizes 
appropriations for attendance at any meetings necessary to improve an 
agency's efficiency. Thus, new discretionary authority is not conferred 
by this language, since the law provides for its inclusion in a general 
appropriation bill.

No Funds Except Where Secretary Determines National Security Dictates

Sec. 52.29 To a proviso in a general appropriation bill denying the use 
    of funds to pay price differentials on contracts made for the 
    purpose of relieving economic dislocations, an amendment exempting 
    from that prohibition contracts determined by the Secretary of the 
    Army pursuant to existing laws and regulations as not to be 
    inappropriate therefor by

[[Page 6098]]

    reason of national security considerations was ruled out as 
    legislation imposing new duties on the Secretary, absent any 
    showing of existing provisions of law requiring such a 
    determination to be made.

    On Sept. 16, 1980,(11) during consideration in the 
Committee of the Whole of H.R. 8105, the Defense Department 
appropriation bill, a point of order was sustained against an amendment 
offered to a provision of the bill as indicated below:
---------------------------------------------------------------------------
11. 126 Cong. Rec. 25606, 25607, 96th Cong. 2d Sess.
---------------------------------------------------------------------------

        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: 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 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.

        The amendment prohibits the payment of price differentials on 
    contracts except ``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

[[Page 6099]]

    which is not now required under 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. . . . 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.
        I would urge that the Chair rule that this amendment is out of 
    order. . . .
        The Chairman: (12) The Chair is ready to rule.
---------------------------------------------------------------------------
12. 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.
        Mr. Addabbo: I accept the point of order, Mr. Chairman.
        The Chairman: The Chair has sustained the point of order.

Making Lesser Determination Than That Contemplated by Law

Sec.  52.30 To a section of a general appropriation bill exempting 
    cases where the life of the mother would be endangered if the fetus 
    were carried to term from a denial of funds for abortions, an 
    amendment exempting instead cases where the health of the mother 
    would be endangered if the fetus were carried to term was held not 
    to constitute further legislation, since determinations on the 
    endangerment of life necessarily subsume determinations on the 
    endangerment of health, and the amendment did not therefore require 
    any different or more onerous determinations.

    On June 27, 1984,(13) during consideration in the 
Committee of the Whole of the Treasury Department and Postal Service 
appro

[[Page 6100]]

priation bill (H.R. 5798), an amendment was offered to the bill as 
follows:
---------------------------------------------------------------------------
13. 130 Cong. Rec. ----, 98th Cong. 2d Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Sec. 618. No funds appropriated by this Act shall be 
        available to pay for an abortion, or the administrative 
        expenses in connection with any health plan under the Federal 
        employees health benefit program which provides any benefits or 
        coverages for abortions, under such negotiated plans after the 
        last day of the contracts currently in force. . . .
            Sec. 619. The provisions of section 618 shall not apply 
        where the life of the mother would be endangered if the fetus 
        were carried to term.

        Mrs. [Patricia] Schroeder [of Colorado]: Mr. Chairman, I offer 
    an amendment.
        The Clerk read as follows:

            Amendment offered by Mrs. Schroeder: On page 51, in line 6, 
        delete ``life'' and insert in lieu thereof ``health''. . . .

        Mr. [Christopher H.] Smith [of New Jersey]: Mr. Chairman, this 
    is legislating on an appropriations bill, in violation of rule XXI, 
    clause 2, and I ask that it be ruled in such a way by the Chair. . 
    . .
        Mrs. Schroeder: Mr. Chairman, clause 2(b) of rule XXI states, 
    ``No provision changing existing law shall be reported in any 
    general appropriation bill. . . .'' Out of this language comes the 
    general restriction prohibiting the consideration of legislation as 
    part of an appropriation bill. One way the Chair decides whether a 
    limitation constitutes legislation is to determine whether the 
    provision adds new affirmative directions for administrative 
    officers.
        Clearly, section 619 of H.R. 5798 would have been subject to a 
    valid point of order, had any Member sought to raise one. The 
    ``life of the mother'' exception to a limitation on funding for 
    abortions on an appropriations measure has on numerous occasions 
    been ruled out of order. This happened last year on this very 
    legislation.
        But, no Member raised that point of order on section 619. My 
    amendment seeks to amend section 619 by enlarging the exception to 
    apply to the ``health of the mother,'' rather than to the ``life of 
    the mother.'' The appropriate test is not whether section 619, as 
    amended, would be subject to a point of order but, rather, the test 
    is whether my amendment adds new or different affirmative 
    directions to an administrative officer. The question is whether my 
    amendment would change the nature of the legislation already on 
    this bill.
        To answer that question, we must refer to section 618 of the 
    bill, which prohibits the use of funds appropriated by the bill to 
    pay for an abortion or for administrative expenses in connection 
    with any health plan under the Federal Employees Health Benefit 
    Program [FEHBP] which provides benefits or coverages for abortions. 
    Clearly, the first part of this section is a nullity, because there 
    is no authorization to use one penny appropriated by the bill to 
    pay directly for an abortion. The operative language is the second 
    part.
        The administrative burden imposed by section 619 is that the 
    Director of the Office of Personnel Management is required to 
    review contracts with health care providers to ensure that they 
    provide no reimbursement for abortions, unless the life of the 
    mother

[[Page 6101]]

    is at stake. Examining those same contracts to ensure that they 
    provide no reimbursement for abortions unless the health of the 
    mother is at stake is precisely the same administrative burden. 
    Each involves reviewing 130 contracts to see whether certain 
    language appears in them. There is no different administrative 
    burden.
        Arguably, section 619 creates another administrative burden 
    which requires the Director of the Office of Personnel Management 
    to monitor the implementation of health benefit plans to ensure 
    compliance with the restriction. In this role, section 619 asks the 
    Director of the Office of Personnel Management to second guess 
    doctors and insurance carriers to decide whether the life of the 
    mother would truly have been endangered if the fetus had been 
    carried to term. Undoubtedly, this is an affirmative obligation 
    which is nowhere authorized in law and which the Director of the 
    Office of Personnel Management is uniquely unqualified to perform.
        My amendment reduces this administrative obligation. If the 
    Director of the Office of Personnel Management were obliged to 
    ensure compliance with section 619, as amended, he would merely 
    have to determine whether the health of the mother would have been 
    endangered if the fetus were carried to term. This is a much 
    smaller burden.
        The life of the mother is a narrow subset of the health of the 
    mother. Medical personnel can say with far greater assurance that 
    the health of a patient might be impaired than that the life of the 
    patient might be lost. To make a determination that the life of the 
    mother would be endangered if the fetus were carried to term, one 
    must make a prior determination that the health of the mother was 
    also endangered. Hence, section 619, as amended by my amendment, 
    would impose a part of the administrative burden imposed by section 
    619, as reported, but a substantially reduced part. . . .
        The Chairman: (14) The Chair is prepared to rule.
---------------------------------------------------------------------------
14. Anthony C. Beilenson (Calif.).
---------------------------------------------------------------------------

        Under the precedents, a legislative provision permitted to 
    remain in a general appropriations bill may be perfected by 
    amendment so long as the amendment does not add further 
    legislation. The Chair would refer to Mr. Deschler, chapter XXVI, 
    section 2.3.
        In the opinion of the Chair, the determinations required by 
    section 619 of this bill, the present bill, as to whether the life 
    of the mother is in danger necessarily subsume determinations as to 
    whether the health of the mother is in danger and, for that reason, 
    the amendment adds no different or more onerous requirements for 
    medical determination to those already required and contained in 
    section 619.
        The Chair, therefore, would overrule the gentleman's point of 
    order.

Requiring Determination of Interest Costs

Sec.  52.31 Language in a general appropriation bill prohibiting the 
    use of funds therein as contributions to international 
    organizations in excess of the U.S. share of the organization's 
    assessment budget after deducting inter

[[Page 6102]]

    est costs for loans through external borrowing was ruled out as 
    legislation, requiring federal officials to determine certain 
    interest costs, a duty not discernably required by existing law.

        On Dec. 9, 1982,(15) during consideration in the 
    Committee of the Whole of the Departments of Commerce, Justice, 
    State, and the Judiciary appropriation bill (H.R. 6957), a point of 
    order against a provision was sustained as follows:
---------------------------------------------------------------------------
15. 128 Cong. Rec. ----, 97th Cong. 2d Sess. For a ruling on a 
        subsequent amendment to the bill having a similar purpose, see 
        Sec. 59.19 infra.
---------------------------------------------------------------------------

        Mr. [Clement J.] Zablocki [of Wisconsin]: Mr. Chairman, I have 
    a point of order to the proviso on page 30.
        The portion of the bill to which the point of order relates is 
    as follows:

                  International Organizations And Conferences

                  contributions to international organizations

            For expenses, not otherwise provided for, necessary to meet 
        annual obligations of membership in international multilateral 
        organizations, pursuant to treaties, conventions, or specific 
        Acts of Congress, including funds for the payment of 1983 
        assessed contributions to the Inter-American Institute for Co-
        operation on Agriculture, $449,815,000: Provided, That none of 
        the funds appropriated in this paragraph shall be available for 
        a United States contribution to an international organization 
        in excess of the United States share of the organization's 
        assessment budget after deducting from that budget any interest 
        costs for loans incurred on or after October 1, 1982 through 
        external borrowing. . . .

        A major test of whether a provision in an appropriations bill 
    constitutes legislation under clause 2 of rule XXI is whether the 
    provision imposes on the Executive a new duty not mandated in 
    existing law.
        With respect to the issue addressed in the proviso, it is not 
    the normal practice of these international organizations to engage 
    in external borrowing. Thus, U.S. assessed contributions are not 
    normally used for this purpose.
        In the event that such organizations were to engage in external 
    borrowing and to pay off such loans from their assessed budgets, 
    the executive branch would be required to perform a series of 
    actions in order to comply with the proviso in question.
        First, because in some cases the United States pays its 
    contribution in installments, the executive branch would be 
    required to ask each organization if it, in fact, intends to engage 
    in any external borrowing, and if so, the amount they intend to 
    borrow and at what interest rate.
        Second, prior to final payment of the U.S. assessed 
    contribution, the executive branch is required to again inquire of 
    each of the 44 organizations whether it has, in fact, engaged in 
    any borrowing and the precise amount of interest paid as a result.
        Third, the executive branch would be required to verify the 
    response from each organization.

        Fourth, the executive branch would be required to calculate the 
    U.S. pro

[[Page 6103]]

    rata share of such interest payments for each organization engaged 
    in such borrowing.
        Fifth, the executive branch would be required to subtract the 
    U.S. pro rata share determined in the preceding procedure from its 
    final assessed payment to each affected organization.
        None of these actions are required of the executive branch 
    under existing law and none are currently performed by the 
    executive branch as a matter of routine practice. . . .
        More fundamentally, under existing law, the United States is 
    obligated to pay the full amount of its assessed contribution to an 
    international organization. This obligation can only be changed by 
    a superseding provision of law. The proviso attempts to be such a 
    law and as such is legislative in nature. . . .
        The Chairman: (16) Does the gentleman from Iowa 
    desire to be heard on the point of order?
---------------------------------------------------------------------------
16. George E. Brown, Jr. (Calif.).
---------------------------------------------------------------------------

        Mr. [Neal] Smith of Iowa: Mr. Chairman, I do not think it is 
    subject to a point of order, but at this time of the night we want 
    to save time. So, I am going to concede the point of order.
        The Chairman: The point of order is conceded, and the Chair 
    upholds the point of order.

Requiring Evaluation of ``Propriety'' and ``Effectiveness''

Sec. 52.32 Language in the guise of a limitation requiring federal 
    officials to make evaluations of propriety and effectiveness not 
    required to be made by existing law is legislation; a proviso in a 
    general appropriation bill prohibiting the use of funds therein for 
    grants ``not properly reviewed under procedures used in the prior 
    fiscal year'' or for grantees not having ``an established and 
    effective program in place'' was held to require new determinations 
    by federal officials not required by existing law for the fiscal 
    year in question and to be legislation in violation of Rule XXI 
    clause 2.

    On Oct. 6, 1981,(17) during consideration in the 
Committee of the Whole of the Departments of Labor, and Health and 
Human Services appropriation bill (H.R. 4560), a point of order was 
sustained against a provision in the bill, as follows:
---------------------------------------------------------------------------
17. 127 Cong. Rec. 23361, 97th Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. [Eugene] Johnston [of North Carolina]: Mr. Chairman, I make 
    a point of order against the language on page 13 of the bill, lines 
    15 through 24.
        The portion of the bill to which the point of order relates is 
    as follows:

            Provided further, That none of the funds appropriated under 
        this paragraph shall be used to fund any grant to any business, 
        union, trade association, or other grantee which is not 
        properly reviewed under the peer review procedures used in 
        fiscal year 1980. Furthermore, none of the

[[Page 6104]]

        funds appropriated under this paragraph shall be used to 
        provide grants to any business, union, trade association, or 
        other grantee that does not have an established and effective 
        program for educating employers or employees about occupational 
        hazards and disease.

        Mr. Chairman, the language prohibits grants to any grantee 
    which does not have ``an established and effective program'' for 
    education. In order to implement this requirement, the Department 
    would have to establish a new procedure for determining what 
    represents an ``established and effective'' program.
        In addition, this would preclude as a recipient any group 
    establishing such a program in the future.
        Both of these requirements impose additional duties on the 
    Department and those represent legislation on an appropriations 
    bill.
        In addition, it precludes the Secretary from monitoring the 
    expenditures of these funds in the future--all of this in violation 
    of clause 2, rule XXI, of the House. . . .
        Mr. [David R.] Obey [of Wisconsin]: . . . I would like to make 
    the point that the Department has established procedures under 
    which these grants are made available, and this simply is a 
    limitation of the funds which can be expended under the procedures 
    which the Department has now and has had in the past.
        The Chairman: (18) The Chair is prepared to rule.
---------------------------------------------------------------------------
18. Don Fuqua (Fla.).
---------------------------------------------------------------------------

        The gentleman from North Carolina (Mr. Johnston) makes a point 
    of order against the language contained on page 13 of the bill. The 
    Chair has been persuaded by the argument, because he is not sure 
    what is meant by ``properly reviewed'' or what is contained in ``an 
    established and effective program,'' as contained on line 23, and 
    upholds the point of order of the gentleman from North Carolina 
    (Mr. Johnston) on the basis that those terms impose new duties and 
    determinations on executive officials.

Determining That Life of Mother Endangered if Fetus Carried to Term

Sec. 52.33 A provision in a general appropriation bill requiring new 
    determinations by federal officials is legislation and subject to a 
    point of order, regardless of whether or not private or state 
    officials administering the federal funds in question routinely 
    make such determinations.

    On June 17, 1977,(19) during consideration in the 
Committee of the Whole of the Departments of Labor, and Health, 
Education, and Welfare and related agencies appropriation bill (H.R. 
7555), a point of order was made and sustained against a provision in 
the bill as follows:
---------------------------------------------------------------------------
19. 123 Cong. Rec. 19698, 19699, 95th Cong. 1st Sess.
---------------------------------------------------------------------------

        The Chairman: (20) When the Committee of the Whole 
    rose on Thursday,

[[Page 6105]]

    June 16, 1977, the Clerk had read from section 209, line 2, on page 
    40.
---------------------------------------------------------------------------
20. Richard Bolling (Mo.).
---------------------------------------------------------------------------

        Are there any amendments? . . .
        Mr. [Clifford R.] Allen [of Tennessee]: Mr. Chairman, I make a 
    point of order against section 209 which states:

            None of the funds contained in this Act shall be used to 
        perform abortions except where the life of the mother would be 
        endangered if the fetus were carried to term.

        My point of order is simply that this is legislation in an 
    appropriation act. Obviously and implicitly in this language is the 
    duty on the part of some administrative agency, or on the part of 
    whoever is going to disburse the funds, to ascertain from some 
    physician that the life of the mother or the pregnant woman would 
    be endangered if the fetus is carried to term. This is imposing an 
    additional burden on whatever administrative agency has to carry 
    out this task. On that basis I make a point of order that this is 
    legislation in an appropriation act. . . .
        Mr. [Daniel J.] Flood [of Pennsylvania]: . . . Mr. Chairman, I 
    rise in opposition to the point of order.
        The provision in question here is identical--I repeat for the 
    purpose of emphasis, the provision in question is identical--to the 
    provisions of Public Law 94-439, that is the Labor-HEW 
    Appropriation Act for fiscal year 1977. It does not impose any 
    additional burdens on any officer of the Federal Government. The 
    determination as to whether the life of the mother is endangered 
    would of course be made by a physician, but not a Federal official, 
    and the physician would have to make that determination anyway 
    whether or not this provision is in the bill, and any physician who 
    is treating a woman seeking an abortion would have to make a 
    judgment as to her state of health. . . .
        Mr. [Robert E.] Bauman [of Maryland]: Mr. Chairman, in support 
    of the argument presented by the gentleman from Pennsylvania, it 
    should be noted by the Chair that medicaid funds which this section 
    affects are administered by the States and not by the Federal 
    Government.
        In addition to that, the judgment required by section 209 would 
    have to be made by private physicians who might be reimbursed, but 
    it would be State officials who would be doing reimbursing with 
    Federal funds, not Federal officials.
        As the Chair knows, the imposition of additional duties on 
    Federal officials, is a proper test of whether or not the language 
    goes beyond a limitation. In this case it does not involve a 
    judgment by a Federal official, only by a reimbursing State 
    official on the certification in most cases by a private doctor. 
    Therefore I do not believe it imposes any additional duties. It 
    simply is a limitation on the manner in which the funds may be 
    expended. . . .
        The Chairman: The Chair is prepared to rule. . . .
        The language in question, section 209 of the bill, prohibits 
    the use of funds in the act to perform abortions except where the 
    life of the mother would be endangered if the fetus were carried to 
    term. It is well established that a limitation is not in order on 
    an appropriation bill if it requires new duties and determinations 
    on the executive branch and requires investiga

[[Page 6106]]

    tions. Section 209 by its terms requires the Federal Government to 
    determine, in each and every case where an abortion may be 
    performed with Federal funds, whether the life of the mother was 
    endangered. Whether or not such determinations are routinely made 
    by practicing physicians on a voluntary basis, the language in the 
    bill addresses determinations by the Federal Government and is not 
    limited by its terms to determinations by individual physicians or 
    by the respective States.
        For the reasons stated, the Chair sustains the point of order.

Duty of Determining Compliance With Federal Law

Sec. 52.34 It is in order on a general appropriation bill to deny funds 
    for the payment of salary to a federal employee who is not in 
    compliance with a federal law, for such limitation places no new 
    duties on a federal official who is already charged with enforcing 
    the law.

    On Sept. 10, 1981,(1) an amendment to a general 
appropriation bill prohibiting the use of funds therein to rehire 
certain federal employees engaged in a strike in violation of federal 
law (5 USC Sec. 7311; 18 USC Sec. 1918) was held in order as a 
limitation not requiring new determinations on the part of federal 
officials administering those funds, since existing law (5 USC 
Sec. 3333) requiring an affidavit undertaking not to strike to be 
signed by federal employees, and a court order enjoining the strike in 
question, already imposed an obligation on the administering officials 
to enforce the law. The proceedings are discussed in Sec. 74.6, infra.
---------------------------------------------------------------------------
 1. 127 Cong. Rec. 20109, 20110, 97th Cong. 1st Sess.
---------------------------------------------------------------------------

    Parliamentarian's Note: The precedents cited by the Chair in 7 
Cannon's Precedents Sec. Sec. 1661 and 1662 were examples of 
limitations held in order to deny payments to federal employees who 
``willfully'' refuse to perform their duties. The determination of 
``willfulness'' arguably involves an investigation into intent or 
motive, and might have rendered those amendments suspect under more 
recent precedents.

Funds Conditioned Upon Duties Already Required by Existing Law

Sec. 52.35 Where existing law authorizing public works employment 
    programs required a federal official to consider the severity and 
    duration of unemployment in project areas and to make grants to 
    local governments to be administered for the direct benefit and 
    employment of

[[Page 6107]]

    unemployed residents of the affected community, language in a 
    general appropriation bill prohibiting the use of funds therein 
    where less than a certain percentage of the prospective employees 
    had resided in the area and had been unemployed for a stated length 
    of time was held in order as a limitation which did not impose upon 
    federal officials any substantially new duties not already required 
    by existing law.

    The proceedings of Aug. 25, 1976,(2) are discussed in 
Sec. 65.1, infra.
---------------------------------------------------------------------------
 2. 122 Cong. Rec. 27737-39, 94th Cong. 2d Sess.
---------------------------------------------------------------------------

Sec. 52.36 An amendment to a general appropriation bill denying 
    availability of funds therein to pay certain benefits to persons 
    simultaneously entitled by law to other benefits, or in amounts in 
    excess of those other entitlement levels, was held in order as a 
    limitation, since existing law already required executive officials 
    to determine whether and to what extent recipients of funds 
    contained in the bill were also receiving those other entitlement 
    benefits.

    The determination of the Chair on June 18, 1980,(3) was 
that, where existing law (19 USC Sec. 2292) established trade 
readjustment allowances to workers unemployed because of import 
competition and required the disbursing agency to take into 
consideration levels of unemployment insurance entitlements under other 
law in determining payments, an amendment to a general appropriation 
bill reducing the availability of funds therein for trade adjustment 
assistance by amounts of unemployment insurance did not impose new 
duties upon officials, who were already required to make those 
reductions. The amendment was as follows:
---------------------------------------------------------------------------
 3. 126 Cong. Rec. 15354-56, 96th Cong. 2d Sess.
---------------------------------------------------------------------------

        Amendment offered by Mr. [Robert H.] Michel [of Illinois]: Page 
    39, line 4, strike out ``$1,841,000,000'' and insert 
    ``$1,486,000,000''. . . .
        On line 7, after ``1980'' insert ``: Provided further, That 
    none of the funds appropriated in this paragraph and made available 
    on October 1, 1980 shall be used to pay trade readjustment benefits 
    under part I of subchapter B of chapter 2 of Title I of the Trade 
    Act of 1974 for any week to any individual who is entitled to 
    unemployment insurance benefits for such week:

[[Page 6108]]

    Provided further, That none of the funds appropriated in this 
    paragraph and made available on October 1, 1980 shall be used to 
    pay trade readjustment benefits under part I of subchapter B of 
    chapter 2 of title II of the Trade Act of 1974 to any individual in 
    an amount for any week in excess of the weekly unemployment 
    insurance benefits which he received or which he would have 
    received if he applied for such insurance.''. . .
        Mr. [Elwood H.] Hillis [of Indiana]: Mr. Chairman, I make a 
    point of order against the amendment.
        Mr. Chairman, the amendment violates rule XXI of clause 2 of 
    the rules of the House in that it constitutes legislation in an 
    appropriation bill. The amendment is a change in law and not a mere 
    limitation of the expenditure of the funds appropriated.
        The amendment does not on its face retrench Federal 
    expenditures covered by the bill. Under the precedents of the House 
    in order for an amendment to be covered by the so-called Holman 
    rule, it must on its face reduce Federal expenditures. . . .
        Mr. Chairman, it appears to me that a similar situation is 
    presented by the pending amendment which has two parts. Part one of 
    the amendment would reduce the appropriations. The second part of 
    the amendment, the legislative part, must stand by itself and on 
    its face retrench expenditures, which it fails to do.
        Chapter 26, section 10.4 of Deschler's procedure states:

            An amendment to a general appropriation bill, proposing 
        legislation which will not patently reduce expenditures, though 
        providing for a reduction in the figures of an appropriation, 
        is not in order under clause 2 Rule XXI. . . .

        Mr. Michel: Mr. Chairman, this is a straight limitation on an 
    appropriations bill which does nothing more than limit the use of 
    the funds under this program. In order to be considered as a proper 
    limitation on the use of funds, the amendment must prohibit the use 
    of money for some purpose already authorized by law. It has been 
    consistently upheld that the House has the right to refuse to 
    appropriate for any purpose which it may deem improper, even though 
    that purpose may be authorized by law. The principle of limitations 
    on appropriation bills is derived from this concept. If the House 
    has the right to refuse to appropriate anything for a particular 
    purpose authorized by law, it can appropriate for only a part of 
    that purpose and prohibit the use of money for the rest of the 
    purpose authorized by law. My amendment clearly passes this test.
        This language will not require any extra work on the part of 
    the executive officer administering the funds. Both the trade 
    adjustment assistance program and the regular unemployment 
    insurance programs are administered by the same agencies, the State 
    unemployment insurance agencies and the amount and length of an 
    individual's regular unemployment insurance benefits must currently 
    be determined in order to determine the size of the trade 
    adjustment benefit.
        The language of the current law is significant in this regard; 
    part (c) of section 232 states the following:

            The amount of trade readjustment allowance payable to an 
        adversely affected worker . . . for any week

[[Page 6109]]

        shall be reduced by any amount of unemployment insurance which 
        he receives, or which he would receive if he applied for such 
        insurance, with respect to such week; but, if the appropriate 
        State or Federal agency finally determines that the worker was 
        not entitled to unemployment insurance with respect to such 
        week, the reduction shall not apply with respect to such week.

        The only determinations required under my amendment are: First, 
    the point in time when an individual's regular unemployment 
    benefits are exhausted; and second, the amount per week of such 
    benefits.
        Both such determinations are required under current law, in the 
    section I just cited, as part of the process for calculating the 
    trade adjustment benefit to which an individual may be entitled. 
    Consequently, no additional duties are required of the executive 
    officers administering these funds under the language of my 
    amendment. Therefore, Mr. Chairman, I submit that my amendment is 
    not legislation and the point of order should not lie.
        The Chairman Pro Tempore: (4) The Chair is ready to 
    rule.
---------------------------------------------------------------------------
 4. John B. Breaux (La.).
---------------------------------------------------------------------------

        For the reasons stated by the gentleman from Illinois and 
    because a reading of section 2292 of title 19, United States Code 
    indicates that the determinations required by the amendment offered 
    by the gentleman from Illinois are precisely those required by the 
    existing law in 19 U.S.C. 2292, the amendment, therefore, is in 
    order as a negative limitation on use of funds in this bill and the 
    ``Holman rule'' is not applicable.
        The point of order is overruled.

    Parliamentarian's Note: Had the language of the amendment been 
considered legislation, the ``Holman rule'' exception would not have 
been applicable, since the reduction of the lump-sum figure was not the 
necessary result of the language contained in the amendment.

Requiring Determination of Motive or Intent

Sec. 52.37 An amendment to a general appropriation bill prohibiting the 
    use of funds therein for abortions or abortion-related material and 
    services, and defining ``abortion'' as the intentional destruction 
    of unborn human life, which life begins at the moment of 
    fertilization was conceded to impose affirmative duties on 
    officials administering the funds (requiring determinations of 
    intent of recipients during abortion process) and was ruled out as 
    legislation in violation of Rule XXI clause 2.

    The proceedings of June 27, 1974,(5) are discussed in 
Sec. 25.14, supra.
---------------------------------------------------------------------------
 5. 120 Cong. Rec. 21687-94, 93d Cong. 2d Sess.

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

[[Page 6110]]

Requiring Substantive Determination Not Required by Law

Sec. 52.38 A restriction on the use of funds in a general appropriation 
    bill which requires a federal official to make a substantive 
    determination not required by any law applicable to his authority, 
    thereby requiring new investigations not required by law, is 
    legislation in violation of Rule XXI clause 2.

    On Aug. 20, 1980,(6) an amendment to a general 
appropriation bill prohibiting the use of funds therein for the General 
Services Administration to dispose of United States owned agricultural 
land declared surplus was ruled out as legislation requiring the 
finding that surplus United States owned lands are ``agricultural'', 
where the law cited by the proponent of the amendment defining that 
term was not applicable to the GSA.
---------------------------------------------------------------------------
 6. 126 Cong. Rec. 22156, 22158, 96th Cong. 2d Sess.
---------------------------------------------------------------------------

    The proceedings are discussed in Sec. 57.17, infra.

Requiring Evaluation and Interpretation

Sec. 52.39 To a general appropriation bill containing funds for 
    operation of the Smithsonian Institution, an amendment prohibiting 
    the use of those funds for programs that present the theory of 
    evolution as the sole explanation of life's origins was held to 
    require new determinations as to the theoretical basis of the 
    funded programs and to be legislation in violation of Rule XXI 
    clause 2.

    On July 22, 1981,(7) the Chair held that an amendment to 
a general appropriation bill in the form of a limitation which required 
a federal official to evaluate the theoretical basis of a program in 
determining whether to apply the limitation was legislation, where that 
duty was not already required by law. Under consideration was H.R. 
4035, Department of the Interior appropriation for fiscal 1982, 
providing in part:
---------------------------------------------------------------------------
 7. 127 Cong. Rec. 16822, 97th Cong. 1st Sess.
---------------------------------------------------------------------------

        For necessary expenses of the Smithsonian Institution, 
    including research in the fields of art, science, and history, 
    development, preservation, and documentation of the National 
    Collections; . . . $136,374,000: Provided, That funds appropriated 
    herein are available for advance payments to independent 
    contractors performing research services or participating in 
    official Smithsonian presentations: Provided further, That none of 
    these funds

[[Page 6111]]

    shall be available to a Smithsonian Research Foundation.
        The Clerk read as follows:

            Amendments offered by Mr. [William E.] Dannemeyer [of 
        California]: On page 44, line 25, strike the period and insert 
        in lieu thereof the following: ``Provided further, That none of 
        these funds shall be available for public exhibits and 
        performances that present the theory of evolution as the sole 
        explanation of life's origins.''.
            Page 45, line 16, strike the period and insert in lieu 
        thereof the following: ``Provided further, That none of the 
        funds shall be made available for museum programs that present 
        the theory of evolution as the sole explanation of life's 
        origins''. . . .

        Mr. [Sidney R.] Yates [of Illinois]: Mr. Chairman, I make a 
    point of order that the amendment offered by the gentleman is 
    legislation on an appropriation bill contrary to clause 2 of rule 
    XXI. The amendment provides that funds would not be available for 
    exhibits and performances that present the theory of evolution as 
    the sole explanation of life's origins. This would require 
    Smithsonian officials to make a determination whether or not an 
    exhibition or performance presents the theory of evolution as the 
    sole explanation of life's origins. . . .
        Because this amendment does require that a determination be 
    made that is not now required by law, it legislates on an 
    appropriation bill. These determinations are not ministerial in 
    nature. They would require a determination regarding the sole 
    explanation of life's origins. This is a matter which academicians 
    for centuries have not agreed upon. It would require a significant 
    level of activity on the part of Smithsonian officials to determine 
    the sole explanation of life's origins. . . .
        Mr. Dannemeyer: . . . There would be a preferred way to offer 
    the thought expressed by this amendment, and that would be through 
    an authorization bill. But it relates to an authorization, or the 
    subject relates to the Smithsonian Institution, and I am advised 
    that we do not have an authorization bill going through the House 
    that governs or covers or relates to the Smithsonian Institution. 
    It has just been there so long, the memory of man runneth not to 
    the contrary, we do not have an authorization, so the only ability 
    a Member has, in effect, in a matter of this type is the 
    appropriation vehicle. . . .
        The second argument is that the amendment would--I concede 
    there is some merit to the gentleman from Illinois' argument--that 
    it would, one interpretation would cause the operator of the museum 
    to survey the field to determine what theories exist as to the 
    origin of man and, therefore, it could be argued that it imposes 
    new duties.
        I submit in response to that contention that there is nothing 
    in this amendment that would preclude the museum operator from 
    exhibiting the theory of evolution, but they could not use it as a 
    means, as an explanation of life's origin. To that extent I do not 
    believe that it imposes any new duties.
        The Chairman: (8) . . . If there is no further 
    argument, the Chair has considered the amendments, the arguments of 
    the gentleman raising the point of order and the response thereto 
    and is prepared to rule and does now rule.
---------------------------------------------------------------------------
 8. George E. Danielson (Calif.).
---------------------------------------------------------------------------

        The amendments would require more than incidental 
    determinations

[[Page 6112]]

    by some public official. The amendments would require that a 
    Federal official substantially evaluate public exhibits and 
    performances, and in the case of the second amendment, museum 
    programs, to draw conclusions therefrom as to their theoretical 
    basis.
        The Chair finds that the amendments constitute legislation 
    which would be in violation of clause 2 of rule XXI prohibiting 
    legislation on an appropriation bill, and the point of order is 
    sustained.

Relationship of Limitation to All Agencies Funded

Sec. 52.40 In determining whether a restriction on the use of funds in 
    a general appropriation bill constitutes legislation in violation 
    of Rule XXI clause 2, the Chair must assess the impact of that 
    language on all of the agencies funded in the bill to which the 
    limitation applies in order to discern whether new duties would be 
    imposed on any federal official so affected.

        On June 14, 1978,(9) The Chair found that, to a 
    general appropriation bill from which all funds for the Federal 
    Trade Commission had been stricken as unauthorized, an amendment 
    prohibiting the use of all funds in the bill to limit advertising 
    of (1) food products containing ingredients found safe by the Food 
    and Drug Administration or considered ``generally recognized as 
    safe'', or not containing ingredients found unsafe by the FDA, and 
    (2) toys not declared hazardous or unsafe by the Consumer Product 
    Safety Commission, imposed new duties upon the Federal 
    Communications Commission (another agency funded by the bill) to 
    evaluate findings of other federal agencies--duties not imposed 
    upon the FCC by existing law and therefore violated Rule XXI clause 
    2. The proceedings are discussed in Sec. 58.7, infra.
---------------------------------------------------------------------------
 9. 124 Cong. Rec. 17644-47, 95th Cong. 2d Sess.
---------------------------------------------------------------------------

Limiting Funds to Administer or Enforce Law With Respect to Small Firms

Sec. 52.41 While an amendment to a general appropriation bill may not 
    directly curtail executive discretion delegated by law, it is in 
    order to limit the use of funds for an activity, or a portion 
    thereof, authorized by law if the limitation does not require new 
    duties or impose new determinations.
    Where an amendment to a general appropriation bill prohibited the 
use of funds therein for the Occupational Safety and Health 
Administration to administer or enforce regulations with respect to 
employers of 10 or fewer employees included in a category having an 
``occupational injury lost work day case rate'' less than the national 
average, except to perform certain enumerated functions and 
authorities, but exempted from the prohibition farming operations not 
maintain

[[Page 6113]]

ing a temporary labor camp, the amendment was held not to constitute 
additional legislation on an appropriation bill.

    The proceedings of Aug. 27, 1980,(10) are discussed in 
Sec. 73.11, infra.
---------------------------------------------------------------------------
10. 126 Cong. Rec. 23519-21, 96th Cong. 2d Sess.
---------------------------------------------------------------------------

Requiring ``Buy American'' Policy Where There is Domestic Production

Sec. 52.42 A section in a general appropriation bill prohibiting the 
    use of funds therein for the purchase of foreign-made tools except 
    to the extent that General Services Administration determines that 
    domestically produced tools are not available for procurement, was 
    held to impose additional duties on a federal official and was 
    ruled out as legislation in violation of Rule XXI clause 2.

    On Nov. 30, 1982,(11) during consideration in the 
Committee of the Whole of H.R. 7158 (Treasury Department and Postal 
Service appropriation bill), a point of order was sustained against the 
following provision in the bill:

11. 128 Cong. Rec. 28067, 97th Cong. 2d Sess.
---------------------------------------------------------------------------
    The Clerk read as follows:

            Sec. 505. No part of any appropriation contained in this 
        Act shall be available for the procurement of or for the 
        payment of the salary of any person engaged in the procurement 
        of any hand or measuring tool(s) not produced in the United 
        States or its possessions except to the extent that the 
        Administrator of General Services or his designee shall 
        determine that a satisfactory quality and sufficient quantity 
        of hand or measuring tools produced in the United States or its 
        possessions cannot be procured as and when needed from sources 
        in the United States and its possessions or except in 
        accordance with procedures prescribed by section 6-104.4(b) of 
        Armed Services Procurement Regulation dated January 1, 1969, as 
        such regulation existed on June 15, 1970. This section shall be 
        applicable to all solicitations for bids opened after its 
        enactment. . . .

        Mr. [Bill] Frenzel [of Minnesota]: The point of order is 
    against section 505 of H.R. 7158 as constituting legislation on an 
    appropriation bill. . . .
        Section 505 prohibits appropriated funds from being used in the 
    procurement of any hand or measuring tool not produced in the 
    United States or its possessions unless the Administrator of 
    General Services makes a determination that a satisfactory quality 
    and sufficient quantity of hand or measuring tools produced in the 
    United States cannot be procured as and when needed from domestic 
    sources. . . .
        Section 505 is not merely a limitation on appropriated funds 
    but establishes a procurement requirement not contained in existing 
    law, and requires a determination with respect to such procurement 
    by the General Services Administrator that would not be required to 
    be performed under existing law. . . .

        The Chairman: (12) The Chair is prepared to rule.
---------------------------------------------------------------------------
12. Gerry E. Studds (Mass.).

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

[[Page 6114]]

        The Chair would cite Deschler and Brown's Procedure, chapter 
    26, section 19.5:

            A section in a general appropriation bill prohibiting the 
        use of funds in the bill for the purchase of foreign-made tools 
        except to the extent that the administrator of the General 
        Services Administration determines that domestically produced 
        tools are unavailable for procurement, was held to impose 
        additional duties on the Federal official and was ruled out as 
        legislation in violation of clause 2, rule XXI.

        So for the reasons as stated precisely by the gentleman from 
    Minnesota (Mr. Frenzel) the Chair sustains the point of order and 
    the section is stricken.

Prohibiting Funds to Interfere With Rulemaking Authority

--Implicitly Requiring Agency to Reevaluate Directives and Regulations

Sec.  52.43 A provision in a general appropriation bill prohibiting the 
    use of funds therein by the Office of Management and Budget to 
    ``interfere with'' the rulemaking authority of any regulatory 
    agency was ruled out as legislation which would implicitly require 
    that agency to make determinations not required by law in 
    evaluating and executing its responsibilities mandated by law.

    On Nov. 30, 1982,(13) during consideration in the 
Committee of the Whole of H.R. 7158 (Treasury Department and Postal 
Service appropriation bill), a point of order was sustained against the 
following provision of the bill:
---------------------------------------------------------------------------
13. 128 Cong. Rec. 28062, 28063, 97th Cong. 2d Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

                        Office of Management and Budget

                             salaries and expenses

            For necessary expenses for the Office of Management and 
        Budget, including hire of passenger motor vehicles, services as 
        authorized by 5 U.S.C. 3109, and not to exceed $2,500 for 
        official representation expenses, $33,000,000: Provided, That 
        none of the funds made available by this Act may be used by the 
        Office of Management and Budget to interfere with the 
        rulemaking authority of any regulatory agency.

        Mr. [Frank] Horton [of New York]: Mr. Chairman, I rise to make 
    a point of order against the limitation on the use of funds by the 
    Office of Management and Budget contained in lines 18 through 21 on 
    page 14. . . .
        . . . [T]his limitation provides ``that none of the funds made 
    available by this act may be used by OMB to interfere with the 
    rulemaking authority of any regulatory agency.''
        This proviso is subject to a point of order because it is 
    legislation in an appropriation bill, and therefore violates clause 
    2 of rule XXI of the House of Representatives. . . .
        Mr. Chairman, I would suggest that the word ``interfere'' might 
    be easily in

[[Page 6115]]

    terpreted to change existing law. Under the Paperwork Reduction Act 
    of 1980, no agency can require anyone to comply with a form 
    requesting information from more than nine persons unless that form 
    has been approved by OMB. Some forms are, of course, designed to 
    fulfill some regulatory objective. To the extent that OMB rejects 
    or modifies a form which was originated for a regulatory purpose, 
    it might be thought to be ``interfering'' with rulemaking 
    authority. More specifically, if a form is proposed as a part of a 
    regulation, OMB might file public comments on the form, and if the 
    OMB Director finds that the agency's response to his comments were 
    unreasonable, he could disapprove the form. This might be, of 
    course, interpreted as ``interference.''
        Furthermore, under Executive Order 12,291, entitled ``Federal 
    Regulation,'' OMB is given authority to require agencies to comply 
    with various administrative requirements before proposing certain 
    regulations, and to consider advice on those proposed regulations 
    before issuing them in final form. Although the executive order is 
    carefully written to indicate that OMB's authority exists only ``to 
    the extent permitted by law,'' activities under the order might 
    also be thought by some people to be ``interference'' in agencies' 
    rulemaking authority. . . .
        The Chairman: (14) The Chair is prepared to rule.
---------------------------------------------------------------------------
14. Gerry E. Studds (Mass.).
---------------------------------------------------------------------------

        The Chair would cite the following provision from Deschler's 
    [Procedure], chapter 26, section 11.1, under the general heading 
    ``Imposing Duties on an Executive Official.''

            Sec. 11.1 Parliamentarian's Note: The application of any 
        limitation on an appropriation bill places some minimal extra 
        duties on federal officials, who, if nothing else, must 
        determine whether a particular use of funds falls within that 
        prohibited by the limitation. 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.

        With that citation in mind, and with the arguments made by the 
    gentleman from New York, the maker of the point of order, and 
    because of the entire scope of the duties imposed by law upon the 
    Office of Management and Budget in relationship to regulatory 
    agencies, the Chair feels that the Committee on Appropriations has 
    not sustained the burden of showing that the proposed language 
    would not change and augment the responsibilities imposed by law on 
    the Office of Management and Budget and, therefore, sustains the 
    point of order.

Duties Already Being Performed Pursuant to Provisions in Annual 
    Appropriation Acts

Sec.  52.44 A provision in a general appropriation bill prohibiting the 
    use of funds therein to perform abortions except where the life of 
    the mother would be endangered if the fetus were carried to

[[Page 6116]]

    term, and providing that the several states shall remain free not 
    to fund abortions to the extent they deem appropriate, is 
    legislation requiring federal officials to make determinations and 
    judgments not required by law, notwithstanding the inclusion in 
    prior year appropriation bills of similar legislation applicable to 
    funds in prior years.

    On Sept. 22, 1983,(15) during consideration in the 
Committee of the Whole of the Departments of Labor, and Health and 
Human Services appropriation bill (H.R. 3913), a point of order was 
sustained as indicated below:
---------------------------------------------------------------------------
15. 129 Cong. Rec. ----, 98th Cong. 1st Sess.
---------------------------------------------------------------------------

        Sec. 204. None of the funds provided by this Act shall be used 
    to perform abortions except where the life of the mother would be 
    endangered if the fetus were carried to term: Provided, however, 
    That the several States are and shall remain free not to fund 
    abortions to the extent that they in their sole discretion deem 
    appropriate. . . .
        Mr. [Silvio O.] Conte [of Massachusetts]: Mr. Chairman, I rise 
    in opposition to the point of order.
        The gentleman is correct that this language was ruled out of 
    order in 1977.
        However, the fact is that while Chairman Bolling could in 1977 
    say with justification that this language then imposed a 
    determination on Federal officials, the same situation does not 
    exist today as we consider this bill today.
        Mr. Chairman, our requirement that Federal officials determine 
    danger to the life of the mother has been in effect now for 8 
    consecutive years. What was in 1977 a new determination is not new 
    today. We have had 8 years of experience.
        The administrative requirements and the procedures for making 
    this determination have been in operation, as I said, under the 
    existing law for the past 8 years. Therefore, Mr. Chairman, this 
    language does not now require a new determination and I ask that 
    the Chair overrule the point of order. . . .
        The Chairman Pro Tempore: (16) The Chair is prepared 
    to rule.
---------------------------------------------------------------------------
16. Abraham Kazan, Jr. (Tex.).
---------------------------------------------------------------------------

        The precedent cited by the gentleman from Oregon (Mr. AuCoin) 
    reads as follows:

            A paragraph in a general appropriation bill prohibiting the 
        use of funds in the bill to perform abortions except [where] 
        the mother's life would be endangered if the fetus were carried 
        to term was ruled out of order as legislation requiring Federal 
        officials to make new determinations and judgments not required 
        by law as to the danger to the mother in each individual case.

        The argument of the gentleman from Massachusetts that for the 
    past several years this provision has been in the law does not 
    necessarily stand muster. The fact that a legislative provision has 
    been carried in general appropriation bills in the past does not 
    protect that provision from a timely point of order under rule XXI, 
    clause 2.

[[Page 6117]]

        Therefore the Chair must sustain the point of order. Apparently 
    the point of order was not raised in the past several years so the 
    1977 rule would still apply.

Eligibility for Food Stamps Where Principal Wage Earner is on Strike

Sec.  52.45 An amendment to a general appropriation bill prohibiting 
    the use of funds therein for food stamps to a household whose 
    principal wage earner is on strike on account of a labor dispute to 
    which he or his organization is a party, except where the household 
    was eligible for and participating in the food stamp program 
    immediately prior to the dispute, and except where a member of the 
    household is subject to an employer's lockout, was held to impose 
    new duties and require new investigations by executive branch 
    officials and was ruled out as legislation.

    On June 21, 1977,(17) during consideration of H.R. 7558 
(Department of Agriculture and related agencies appropriations, 1978), 
an amendment was offered, as follows:
---------------------------------------------------------------------------
17. 123 Cong. Rec. 20150-52, 95th Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. [John M.] Ashbrook [of Ohio]: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Ashbrook: On page 39, line 13, add 
        the following new paragraphs: ``Provided further, That no funds 
        appropriated in this Act shall be used to make food stamps 
        available for the duration of a strike to a household while its 
        principal wage-earner is, on account of a labor dispute to 
        which he is a party or to which a labor organization of which 
        he is a member is a party, on strike: Provided further, That 
        such ineligibility shall not apply to any household that was 
        eligible for and participating in the food stamp program 
        immediately prior to the start of such strike, dispute, or 
        other similar action in which any member of such household 
        engages: Provided further, That such ineligibility shall not 
        apply to any household if any of its members is subject to an 
        employer's lockout.''

        Mr. Jamie L. Whitten, of Mississippi, made a point of order.
        Mr. Whitten: . . . Mr. Chairman, I would like to point out that 
    with regard to the pending amendment that the language provides not 
    only the limitation, but it provides that food stamps shall not be 
    available for the duration of a strike to a household while its 
    principal wage earner is out of work on account of a labor dispute.
        The question of ``on account of a labor dispute'' would 
    require, first, an investigation and determination.

        Next it says to which he is a party. That in turn would require 
    an investigation and a determination of whether he is ``a party.''

[[Page 6118]]

        Then it goes further and says ``a labor organization of which 
    he is a member is a party''. That, too, would require an 
    investigation and a determination.
        Going down further we come to the statement where it says 
    ``immediately prior to the start of such strike.'' I do not know 
    how anybody--even though that would require special duties--I do 
    not know how a fellow would perform those duties by knowing how to 
    anticipate what is just in advance of a strike. Certainly it would 
    require a very far-seeing man, knowing some of the things we read 
    about.
        Then it goes further and says, ``or other similar action in 
    which any member of such household engages.''
        All of these, Mr. Chairman, would require special duties.
        As I read the last proviso it says:

            Provided further, That such ineligibility shall not apply 
        to any household if any of its members is subject to an 
        employer's lockout.

        That, in turn, would require a special investigation and 
    special determination. . . .
        Mr. Ashbrook: . . . I fully recognize the fact that the 
    Congress has had this exact amendment before it on a number of 
    occasions, and in no way would make it in order if it were not. I 
    would suggest, however, that in the food stamp program, 
    determinations must be made. By its very nature, the food stamp 
    program does not go to all American families, but goes to families 
    after complete investigations as to the income of the family, as to 
    whether they are at work; if they are not at work, why they are not 
    at work.
        I would further point out that nine States limit all forms of 
    welfare to strikers. The case in point yesterday in the Supreme 
    Court justified that particular ruling by the States. Programs are 
    administered by the States, and I suggest that it does not call 
    upon the Department of Agriculture to ask any questions or have any 
    duties that are not now in law. . . .
        The Chairman: (18) The Chair has had an opportunity 
    to examine the amendment offered by the gentleman from Ohio (Mr. 
    Ashbrook) and also to consult the precedents.
---------------------------------------------------------------------------
18. Samuel S. Stratton (N.Y.).
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        The amendment offered by the gentleman from Ohio (Mr. Ashbrook) 
    does provide that no funds appropriated in this act shall be used 
    to make food stamps available for the duration of a strike to a 
    household while its principal wage earner is, on account of a labor 
    dispute to which he is a party or to whom a labor organization of 
    which he is a member is a party, on strike.
        The amendment further provides that such ineligibility shall 
    not apply to any household if any of its members is subject to an 
    employer's lockout.
        The amendment on this general subject which was offered in 
    1974, the Chair would point out, was not challenged by a point of 
    order.
        The amendment that was offered in the 92d Congress in 1972, 
    which was ruled in order, was in fact different from the amendment 
    presently being offered by the gentleman from Ohio (Mr. Ashbrook).
        The Chair would state that the amendment offered by the 
    gentleman from Ohio (Mr. Ashbrook) differs in a number of 
    significant respects from the amendment held in order in the 92d

[[Page 6119]]

     Congress, 2d session, insofar as it does specify that the 
    ineligibility would apply to an individual who was the principal 
    wage earner of a household, that it applies to one who is 
    determined to be a member of a labor organization which is on 
    strike, and it further requires, in order to be carried out, a 
    determination whether that individual in the household, or any of 
    its members, is subject to an employer's lockout.
        In the opinion of the Chair, the amendment does, therefore, 
    impose additional duties upon a Federal official who is not merely 
    the recipient of information--going beyond language that was held 
    in order in previous Congresses and, therefore, does amount to 
    legislation on an appropriation bill. Therefore, the Chair sustains 
    the point of order.

    Parliamentarian's Note: In the 1972 ruling referred to above, an 
amendment to a general appropriation bill prohibiting the use of funds 
in the bill for making food stamps available during a strike to a 
household ``which needs assistance solely because any member of such 
household is a participant in such strike'' was held in order as a 
valid limitation.(19) Although the Chair tried to 
distinguish the 1972 ruling, the 1977 precedent above should be 
considered as effectively overruling the earlier decision. The 
amendment at issue in 1972 would be viewed in the current practice as 
requiring new determinations by executive officials, such as whether, 
for example, a household needed assistance ``solely'' because a member 
of the household was participating in a strike.
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19. 118 Cong. Rec. 23364, 92d Cong. 2d Sess., June 29, 1972 [under 
        consideration was H.R. 15690].
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