[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§ 58. Commerce]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 6179-6190]
 
                               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. 58. Commerce

Authorization for Sales of Scientific Reports

Sec. 58.1 An amendment to the Departments of State, Justice, Commerce, 
    and the Judiciary appropriation bill authorizing the Secretary of 
    Commerce upon request of any organization or individual to 
    reproduce any scientific or technical report and to sell such 
    reproduction at a cost to be determined by the Secretary was held 
    to be legislation on an appropriation bill and not in order.

[[Page 6180]]

    On Mar. 5, 1948,(9) during consideration in the 
Committee of the Whole of a general appropriation bill (H.R. 5607), a 
point of order was raised against the following provision:
---------------------------------------------------------------------------
 9. 94 Cong. Rec. 2233, 2234, 80th Cong. 2d Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Amendment offered by Mr. [Walter C.] Ploeser [of Missouri]: 
        On page 56, after line 5, insert the following paragraph:
            ``Technical and scientific services: For necessary expenses 
        in the performance of activities and services relating to the 
        collection, compilation, and dissemination of technological 
        information as an aid to business in the development of foreign 
        and domestic commerce, including personal services in the 
        District of Columbia; not to exceed $25,000 for services as 
        authorized by section 15 of the act of August 2, 1946 (5 U.S.C. 
        55a), and not to exceed $50,000 for printing and binding, 
        $520,000, of which $20,000 shall be transferred to the 
        appropriation `Salaries and expenses' under the Office of the 
        Secretary: Provided, That the Secretary is authorized, upon 
        request of any public or private organization or individual, to 
        reproduce by appropriate process, independently or through any 
        other agency of the Government, any scientific or technical 
        report, document, or descriptive material, foreign or domestic, 
        which has been released for public dissemination, and to sell 
        such reproductions at a price not less than the estimated total 
        cost of reproducing and disseminating same as may be determined 
        by the Secretary, the moneys received from such sale to be 
        deposited in a special account in the Treasury, such account to 
        be available for reimbursing any appropriation which may have 
        borne the expense of such reproduction and dissemination and 
        making refunds to organizations and individuals when entitled 
        thereto.''

        Mr. [Karl] Stefan [of Nebraska]: Mr. Chairman, I reserve a 
    point of order against the amendment. . . .
        The Chairman: (10) Does the gentleman from Nebraska 
    insist on his point of order?
---------------------------------------------------------------------------
10. Carl T. Curtis (Nebr.).
---------------------------------------------------------------------------

        Mr. Stefan: Yes, Mr. Chairman.
        The Chairman: Does the gentleman from Missouri desire to be 
    heard on the point of order?
        Mr. [J. Vaughan] Gary [of Virginia]: Mr. Chairman, I wish to be 
    heard on the point of order. . . .
        May I say that a point of order was raised against this item 
    last year and it was eliminated on the point of order. At that 
    time, however, the Department was engaged in some research which it 
    was doing, in which it farmed out certain projects for research to 
    the various colleges and institutions. It was not doing original 
    research but was using other available research agencies to make 
    the research for them. When, however, a point of order was raised 
    in the House the research activities were eliminated.
        The Office is now engaged only in furnishing technical and 
    scientific information to business. The authority for the 
    Department of Commerce to engage in such activities reads as 
    follows:

            It shall be the province and duty of the Bureau of Foreign 
        and Domestic Commerce, under the direction of the Secretary of 
        Commerce, to foster, promote, and develop the various

[[Page 6181]]

        manufacturing industries of the United States, and markets for 
        the same at home and abroad, domestic and foreign, by 
        gathering, compiling, publishing, and supplying all available 
        and useful information concerning such industries and such 
        markets, and by such other methods and means as may be 
        prescribed by the Secretary of Commerce or provided by law.

        It is our contention that this is just exactly what the 
    particular office is doing and that under the above language its 
    activities are authorized.
        The Chairman: Does the gentleman from Nebraska desire to be 
    heard?
        Mr. Stefan: No, Mr. Chairman; I ask that a ruling be made.
        The Chairman: The Chair is ready to rule.
        It is the opinion of the Chair that the amendment does contain 
    legislation and, therefore, the Chair sustains the point of order. 
    .

Authority to Terminate Employment

Sec. 58.2 Language in a general appropriation bill providing that the 
    Secretary of Commerce may, in his discretion, terminate the 
    employment of any officer or employee of the Department of Commerce 
    whenever he shall deem such termination necessary or advisable in 
    the interests of the United States, was conceded to be legislation 
    on an appropriation bill and held not in order.

    On Apr. 21, 1950,(11) during consideration in the 
Committee of the Whole of a general appropriation bill (H.R. 7786), a 
point of order was raised against the following provision:
---------------------------------------------------------------------------
11. 96 Cong. Rec. 5539, 5540, 81st Cong. 2d Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Sec. 305. Notwithstanding the provisions of section 6 of 
        the act of August 24, 1912 (37 Stat. 555), or the provisions of 
        any other law, the Secretary of Commerce may, in his absolute 
        discretion, during the current fiscal year, terminate the 
        employment of any officer or employee of the Department of 
        Commerce whenever he shall deem such termination necessary or 
        advisable in the interests of the United States.

        Mr. [Vito] Marcantonio [of New York]: Mr. Chairman, a point of 
    order.
        The Chairman: (12) The gentleman will state it.
---------------------------------------------------------------------------
12. Jere Cooper (Tenn.).
---------------------------------------------------------------------------

        Mr. Marcantonio: Mr. Chairman, I make a point of order against 
    section 305 for the same reasons as I did yesterday. I do not want 
    to be repetitious. It is legislation on an appropriation bill.
        The Chairman: Does the gentleman from New York [Mr. Rooney] 
    desire to be heard?
        Mr. [John J.] Rooney: Mr. Chairman, this is the exact language 
    of the so-called McCarran rider which was stricken yesterday by the 
    Chair on a point of order raised by the gentleman from New York 
    [Mr. Marcantonio] to the provisions of the Department of State 
    portion of the pending bill.

[[Page 6182]]

    Under the circumstances and as much as I dislike to do so, I must 
    concede that the language is exactly the same and further concede 
    that the Chair is expected to rule today as it did yesterday. But I 
    do hope that when we come back to the House with this bill after a 
    conference with the other body that the provisions of this rider 
    will be again contained therein because the Department of Commerce 
    has been shown to need the provisions of the McCarran rider even 
    more so than the Department of State so that the Secretary of 
    Commerce can summarily dismiss any employee who is connected with 
    subversive activities.
        The Chairman: The gentleman from New York [Mr. Marcantonio] 
    makes the point of order against section 305, page 84, on the 
    ground it contains legislation on an appropriation bill which is in 
    violation of the rules of the House. The gentleman from New York 
    [Mr. Rooney] concedes that this is the same language as contained 
    in the provision of the pending bill relating to the State 
    Department on which a similar point of order was made on 
    yesterday.(13)
---------------------------------------------------------------------------
13. See Sec. 59.14, infra, for the ruling referred to.
---------------------------------------------------------------------------

        The Chair has examined the language. It appears clearly that 
    there is legislation included in this section of the pending bill. 
    The rules of the House clearly provide it is not in order for 
    legislation to be included in an appropriation bill and, as stated 
    on the same question presented yesterday, the Chair has no 
    alternative other than to sustain the point of order.
        The Chair sustains the point of order.

Regulations of the Secretary

Sec. 58.3 Language in an appropriation bill providing that 
    appropriations for the Department of Commerce available for 
    salaries and expenses shall be available ``in accordance with 
    regulations prescribed by the Secretary,'' for attendance at 
    meetings of organizations concerned with the activities for which 
    the appropriations are made, was held to be legislation and not in 
    order.

    On Apr. 21, 1950,(14) during consideration in the 
Committee of the Whole of a general appropriation bill (H.R. 7786), a 
point of order was raised against the following provision:
---------------------------------------------------------------------------
14. 96 Cong. Rec. 5537, 81st Cong. 2d Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Sec. 304. Appropriations of the Department of Commerce 
        available for salaries and expenses shall be available, in 
        accordance with regulations prescribed by the Secretary, for 
        attendance at meetings of organizations concerned with the 
        activities for which the appropriations are made.

        Mr. [Kenneth B.] Keating [of New York]: Mr. Chairman, I make a 
    point of order against section 304 on the ground that it is 
    legislation on an appropriation bill and requires additional duties 
    of the Secretary of Commerce.

[[Page 6183]]

        The Chairman: (15) Does the gentleman from New York 
    [Mr. Rooney] desire to be heard on the point of order?
---------------------------------------------------------------------------
15. Jere Cooper (Tenn.).
---------------------------------------------------------------------------

        Mr. [John J.] Rooney: Yes, Mr. Chairman.
        The Chairman: The Chair will be pleased to hear the gentleman.
        Mr. Rooney: Mr. Chairman, it is the contention of the committee 
    that the language contained in section 304 of the proposed bill, 
    page 84, is required by the provisions of five United States Code, 
    section 83.
        The Chairman: Does the gentleman from New York [Mr. Keating] 
    desire to be heard on the point of order?
        Mr. Keating: Yes, Mr. Chairman.
        The Chairman: The Chair will be pleased to hear the gentleman.

        Mr. Keating: Either this section 304 is necessary or it is not 
    necessary. If it is not necessary and adds nothing, then there is 
    no reason for it; if it does add something, in the way of duties 
    conferred on the Secretary of Commerce, then it is necessarily 
    legislation in an appropriation bill. All of line 14 of section 304 
    requires additional duties on the part of the Secretary of 
    Commerce. The entire section is legislation in this bill.
        My attention has been called to this section of the United 
    States Code, referred to by the gentleman from New York [Mr. 
    Rooney], which is general in its terms but does not cover the 
    duties set forth in section 304, which are in addition to those 
    provided in the code. They are discretionary duties.
        The Chairman: The Chair is prepared to rule. . . .
        The Chair has examined the section, and also has examined the 
    provisions of the law found in section 83, title V of the United 
    States Code, which appear to the Chair to be ample authority for 
    the provision included in this section.
        However, the Chair does invite attention to the language 
    appearing in line 14 which reads: ``in accordance with regulations 
    prescribed by the Secretary.'' It would appear from that language 
    that this would impose additional duties and confer additional 
    authority on the Secretary. It would to that extent constitute 
    legislation on an appropriation bill.
        For the reason stated, the Chair sustains the point of order.

    Parliamentarian's Note: Compare this ruling with Sec. 52.28, supra. 
In the 1950 precedent, there was a requirement for the issuance of 
regulations, rather than discretionary authority given for the issuance 
thereof, and Sec. 304, at issue here also was inadmissible as affecting 
other funds of the department. It should be noted that 5 USC Sec. 4110 
specifically authorizes appropriations for attendance at any meetings 
necessary to improve an agency's efficiency. See also 5 USC Sec. 5946. 
Where the law contemplates inclusion of certain language in an 
appropriation bill, such language, of course, is not legislation. For 
general discussion of provisions in law that authorize inclusion of 
specified language in appropriation bills, see Sec. 26, supra.

[[Page 6184]]

Coast Guard; Earmarking Funds for Unauthorized Project

Sec. 58.4 To a paragraph in a general appropriation bill containing 
    funds for operating expenses of the Coast Guard, an amendment 
    directing the use of additional funds for the preparation of a 
    report by the Coast Guard on search and rescue units was held to 
    impose new duties on federal officials and was ruled out as 
    legislation in violation of Rule XXI clause 2.

    On June 20, 1973,(16) during consideration in the 
Committee of the Whole of the Department of Transportation 
appropriation bill (H.R. 8760), a point of order was raised against the 
following amendment:
---------------------------------------------------------------------------
16. 119 Cong. Rec. 20530, 20531, 93d Cong. 1st Sess.
---------------------------------------------------------------------------

        The Chairman: (17) The gentleman from California 
    reserves a point of order on the amendment.
---------------------------------------------------------------------------
17. John M. Murphy (N.Y.).
---------------------------------------------------------------------------

        The Clerk read as follows:

            Amendment offered by Mr. [Guy A.] Vander Jagt [of 
        Michigan]: Page 3, line 11, strike out ``$543,800,000'' and 
        insert in lieu thereof ``$544,400,000''.
            And on page 3, line 12, insert immediately after 
        ``reduction'' the following: ``, and of which $600,000 shall be 
        applied to the preparation of a report by the Coast Guard with 
        respect to the closing of certain search and rescue units 
        during 1973, and to the reopening and operation of any search 
        and rescue unit determined by such report to be desirable for 
        the maintenance of an effective search and rescue 
        capability.''. . .

        Mr. [John J.] McFall [of California]: . . . Mr. Chairman, I 
    renew my point of order on the basis that the language of the 
    second paragraph of the gentleman from Michigan's amendment is 
    legislation on an appropriation bill.
        The Chairman: Does the gentleman from Michigan wish to repond?
        Mr. Vander Jagt: Thank you, Mr. Chairman.
        [To enable the Coast Guard] to carry out the intent of the 
    committee and respond, [it] is helpful to have that additional 
    language in.
        However, since we are making legislative history as to what 
    exactly we are talking about in terms of this $600,000 item, if the 
    gentleman from California's point of order is sustained, I have a 
    substitute amendment at the desk.
        The Chairman: The Chair will rule on the point of order.
        The gentleman's amendment clearly imposes new duties on the 
    Coast Guard which would, in effect, constitute legislation in an 
    appropriation bill in violation of clause 2, rule XXI.
        The Chair sustains the point of order of the gentleman from 
    California.

Export Embargoes; Requiring Determinations of Rationale for Imposition

Sec. 58.5 A substitute amendment to a general appropriation

[[Page 6185]]

    bill precluding the use of funds therein to carry out embargoes on 
    export of agricultural products determined by the Secretary of 
    Agriculture to have been imposed as the result of a designated 
    Presidential embargo on exports to one country was ruled out as 
    legislation in violation of Rule XXI clause 2, imposing on that 
    official new duties not required by existing law.

    On July 22, 1980,(18) during consideration in the 
Committee of the Whole of the Departments of State, Justice, Commerce, 
and the Judiciary appropriation bill (H.R. 7584), a substitute 
amendment was ruled out of order as indicated below:
---------------------------------------------------------------------------
18. 126 Cong. Rec. 19087-89, 96th Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [Mark] Andrews of North Dakota: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Andrews of North Dakota: On page 
        43, after line 5, insert the following new section:
            ``Sec. 605. None of the funds appropriated by this Act may 
        be used to carry out or enforce any restriction on the export 
        of any agricultural commodity.''

        Mr. [Tom] Harkin [of Iowa]: Mr. Chairman, I offer an amendment 
    as a substitute for the amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Harkin as a substitute for the 
        amendment offered by Mr. Andrews of North Dakota: Page 43, 
        after line 5, insert the following new section:
            Sec. 605. None of the funds appropriated by this Act may be 
        used to carry out or enforce any licensing requirement for the 
        export of any agricultural commodity or product which, as 
        determined by the Secretary of Agriculture, was imposed because 
        of the reduction in the sales of agricultural commodities and 
        products to the Soviet Union announced by a presidential 
        memorandum to the Secretary of Commerce, dated January 7, 1980. 
        . . .

        Mr. [Robert E.] Bauman [of Maryland]: I make a point of order 
    on two grounds. First of all, it is not germane to this bill 
    because it makes the determination of the matter the province of 
    the Secretary of Agriculture, which is not covered in this 
    legislation. This is not for the Department of Agriculture.
        Second, it goes beyond the usual amendment limitation on an 
    appropriation bill, requiring determinations to be made and duties 
    to be performed that may not be authorized at this time in law. For 
    both reasons I think the amendment is out of order. . . .
        Mr. Harkin: Mr. Chairman, I believe the gentleman from Maryland 
    (Mr. Bauman) misreads the amendment. The determination was already 
    made by the Secretary of Agriculture in the Federal Register, 
    volume 45, No. 6, dated January 9, 1980. There is a Presidential 
    memorandum to the Secretary of Commerce in which the President has 
    directed the Secretary of Commerce, in consultation with the 
    Secretary of Agriculture and other appropriate officials, to take 
    immediate

[[Page 6186]]

    action under the Export Administration Act to terminate shipments 
    of agricultural commodities and products, including wheat and corn, 
    to the Soviet Union.
        Therefore, the determination by the Secretary of Agriculture 
    has already been made; it is not to be made in the future. . . .
        Mr. Bauman: Mr. Chairman, I will simply point out if that is 
    the intention of the gentleman, his drafting is imperfect because 
    it says that none of the funds appropriated under this act, which 
    will take effect for fiscal year 1981, beginning October 1, may be 
    used for any licensing requirement. That definitely encompasses 
    future determinations and does not simply go to past 
    determinations. That, I think, is well beyond any limitation that 
    is appropriate to an appropriations bill. . . .
        The Chairman: (19) The Chair is prepared to rule.
---------------------------------------------------------------------------
19. George E. Brown, Jr. (Calif.).
---------------------------------------------------------------------------

        The gentleman from Maryland makes a point of order against the 
    substitute amendment for the amendment offered by the gentleman 
    from North Dakota (Mr. Andrews) on the grounds, first, that it is 
    not germane to the original amendment of the bill; second, that it 
    imposes additional duties and hence it is not in accordance with 
    the rules.
        It is the opinion of the Chair the amendment does appear to 
    impose upon the Secretary of Agriculture the responsibility not 
    only of consulting with the Secretary of Commerce but evaluating 
    whether licensing requirements for export of agricultural 
    commodities were imposed for certain reasons. This is a duty not 
    demonstrably imposed upon the Secretary of Agriculture by existing 
    law and hence in the opinion of the Chair does constitute an 
    additional duty.
        The Chair does find, however, that the substitute is germane, 
    but on the basis of the second objection, upholds the point of 
    order and rules that the amendment is out of order.

Line-of-business Data; Restriction on Discretion to Collect

Sec. 58.6 Language in a paragraph of a general appropriation bill 
    containing funds for the Federal Trade Commission ``for the purpose 
    of collecting line-of-business data . . . from not to exceed 250 
    firms'' was conceded to directly interfere with the discretionary 
    authority of the FTC--a restriction on the scope of the 
    investigation rather than a limitation on availability of funds--
    and was ruled out in violation of Rule XXI clause 2.

    On June 21, 1974,(20) the principle was applied that 
while it is in order on a general appropriation bill to limit the 
availability of funds therein for part of an authorized purpose while 
appropriating for the remainder of it, language which restricts not the

[[Page 6187]]

funds but the discretionary authority of a federal official 
administering those funds may be ruled out as legislation. The 
proceedings are discussed in Sec. 51.18, supra.
---------------------------------------------------------------------------
20. 120 Cong. Rec. 20600, 93d Cong. 2d Sess.
---------------------------------------------------------------------------

Federal Trade Commission; Prohibiting Funds for Regulation of 
    Advertising

Sec. 58.7 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, was held to impose 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.

    On June 14, 1978,(1) during consideration in the 
Committee of the Whole of H.R. 12934 (Departments of State, Justice, 
Commerce, and the Judiciary appropriation bill), a point of order was 
sustained against the following amendment:
---------------------------------------------------------------------------
 1. 124 Cong. Rec. 17644-47, 95th Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [Mark] Andrews of North Dakota: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Andrews of North Dakota: On page 
        51 after line 16, insert the following:
            Sec. 605. Except for funds appropriated to the Judiciary in 
        title IV of this act, no part of any appropriation contained in 
        this act may be used to pay the salary or expenses of any 
        person to limit the advertising of: (1) any food product that 
        contains ingredients that have been determined to be safe for 
        human consumption by the Food and Drug Administration or are 
        considered to be ``Generally Recognized as Safe'' (GRAS) and 
        does not contain ingredients that have been determined to be 
        unsafe for human consumption by the FDA; (2) any toy which has 
        not been declared hazardous or unsafe by the Consumer Product 
        Safety Commission. . . .

        Mr. [Bob] Eckhardt [of Texas]: The amendment is legislation on 
    an appropriation bill, and as such is subject to a point of order 
    under rule XXI, clause 2. . . .
        . . . [T]his amendment was directed at the Federal Trade 
    Commission section of the bill which has come out. Therefore, I 
    would also offer alter

[[Page 6188]]

    natively or additionally, the point of order that this is not 
    germane to the bill as it is now before us. . . .
        . . . I should primarily like to speak on the point of order 
    based on the proposition that I just read, that is that this 
    constitutes legislation on an appropriations bill and gives to 
    officers of the Government very, very large additional duties as 
    the result of the passage of this amendment, should it be passed.
        I point primarily to the case which I believe is directly in 
    point. On June 21, 1974, there was a point of order made by the 
    gentleman from California (Mr. Moss) to a provision in the 
    appropriations bill at that time, section 511. The gentleman from 
    California (Mr. Moss) asserted that the language would impose 
    additional duties on every agency subject to the bill and was 
    legislation on an appropriation. The language of the section was as 
    follows:

            Except as provided in existing law, funds provided in this 
        act shall be available only for the purposes for which they are 
        appropriated.

        Mr. Moss correctly pointed out that if that provision were 
    sustained, it would be necessary in the use of any funds by an 
    agency involved to go back and show that the Appropriations 
    Committee had addressed the specific object of the use of those 
    funds. . . .
        The Chair ruled as follows:

            The Chair is prepared to rule on the point of order. If the 
        language means what the gentleman from Mississippi now says it 
        does, then the language is a nullity because it just repeats 
        existing law. The Chair is of the opinion, though, that there 
        is a possibility, as earlier indicated during general debate 
        and as suggested by the gentleman from California, that the 
        amendment imposes an additional burden, and the Chair, 
        therefore, sustains the point of order. . . .

        The Food and Drug Administration does not list food products as 
    safe or unsafe. The Food and Drug Administration only determines 
    whether or not ingredients in food products are safe or unsafe. 
    Therefore, if this restriction were placed in law, it would be 
    necessary for an agency like the Federal Communications Commission, 
    when it is determining whether or not funds might be used in order 
    to take some action respecting unsafe foods, to look to see what 
    ingredients were included in the particular food involved. . . .
        The Consumer Product Safety Commission determines what minimum 
    design or what minimum standards, performance standards, are 
    necessary in order for a toy to be permitted to go on the market. . 
    . .
        The point, though, is that the Commission does not establish 
    that this particular toy is unsafe. If we pass this restriction, we 
    would place the burden on the FTC to go in and look at every toy 
    and then apply the standards of the Consumer Product Agency to 
    those toys to find out whether they could be advertised.
        So, Mr. Chairman, I think this is a classic example of placing 
    on every agency to whom this restriction would apply very extensive 
    duties beyond that which they are now called upon to exercise. . . 
    .
        Mr. [Norman D.] Dicks [of Washington]: . . . Mr. Chairman, just 
    to reiterate on this point, this amendment was aimed at limiting 
    the Federal Trade Commission. Now that that sec

[[Page 6189]]

    tion has been stricken, the only way it can apply is to the FCC. 
    The FCC does not have to regulate itself for advertising. That 
    jurisdiction falls within the jurisdiction of the Federal Trade 
    Commission.
        Therefore, it creates new legal duties for the FCC, which are 
    beyond the scope of an appropriation bill, which makes it 
    legislation within an appropriation bill and, therefore, subject to 
    rule XXI, clause 2.
        Also the ruling made by the Consumer Product Safety Commission 
    is accurate. The language does not go to unsafe toys, and they 
    would have additional duties created by this amendment. . . .
        The Chairman: (2) The Chair is prepared to rule.
---------------------------------------------------------------------------
 2. George E. Brown, Jr. (Calif.).
---------------------------------------------------------------------------

        The gentleman from Texas (Mr. Eckhardt) makes the point of 
    order that the amendment offered by the gentleman from North Dakota 
    (Mr. Andrews) constitutes legislation on an appropriation bill. In 
    addition, he makes the point that because it was drafted originally 
    to be applicable to the Federal Trade Commission and that section 
    of the bill has been stricken, it is no longer germane to the bill.
        The Chair does not find it necessary to rule, however, on the 
    point of germaneness.
        The amendment would prohibit use of any funds in the bill to 
    limit advertising of food products and toys in relation to which 
    determinations have been made by the Food and Drug Administration 
    and the Consumer Product Safety Commission. As indicated by the 
    arguments made on the point of order, this bill now contains no 
    funds for the Federal Trade Commission but does contain funds for 
    the Federal Communications Commission. The Chair feels it is 
    necessary to lay that basis in order to determine whether the 
    amendment requires new duties or determinations of a particular 
    agency which are not now required by law.
        The Federal Communications Commission has the authority under 
    the law to regulate interstate and foreign communications and 
    transmissions in wire and radio, but existing law contains no 
    mandate that the Commission consider whether food and toy products 
    are safe or unsafe in regulating broadcasts within its 
    jurisdiction. The amendment would disallow funds for the Commission 
    to limit advertising of certain products, even if the purpose for 
    such regulatory limitations was totally unrelated to the safety of 
    the product in question. In considering any proposal to limit 
    advertising of food or toy products, the Commission would be 
    required to first determine the scope and extent of determinations 
    of other agencies on the safety of those products, and it is far 
    from clear whether such determinations are readily available or 
    sufficiently certain to determine whether the limitation would 
    apply in a particular case.
        Furthermore, in relation to food products, the Commission would 
    have to determine whether the finished food product contained 
    ingredients which have been declared safe if the Food and Drug 
    Administration had made no determination on the safety of such a 
    finished product.
        The Chair would also note that the amendment would prohibit 
    advertising of food products containing ingredients

[[Page 6190]]

    considered to be generally recognized as safe, without specifically 
    indicating whether that determination is to be made by the FDA or 
    by the Federal Communications Commission.
        For the reasons stated, the Chair finds that the amendment 
    would impose substantial new duties and requirements on the Federal 
    Communications Commission beyond its authorities under existing law 
    and, therefore, sustains the point of order.

    Parliamentarian's Note: Even if FTC funds had remained in the bill, 
the amendment was overly broad since applying to all funds in the bill 
and not confined to FTC activities. The paragraph ruled out as 
unauthorized, supra, containing funds for the FTC, included similar 
language relating to the FTC.