[Deschler's Precedents, Volume 8, Chapter 26]
[Chapter 26. Unauthorized Appropriations; Legislation on Appropriation Bills]
[F. Permissible Limitations on Use of Funds]
[Â§ 73. Education and Community Service; Health; Labor]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 6427-6442]
 
                               CHAPTER 26
 
    Unauthorized Appropriations; Legislation on Appropriation Bills
 
               F. PERMISSIBLE LIMITATIONS ON USE OF FUNDS
 
Sec. 73. Education and Community Service; Health; Labor

Educational Assistance to Federally Impacted Areas

Sec. 73.1 To a general appropriation bill providing funds for 
    educational assistance to ``federally impacted areas,'' an 
    amendment providing that the appropriation shall not be available 
    for a certain percentage of children of parents who live or work on

[[Page 6428]]

    federal property or where local contribution rates are not 
    determined in accordance with certain requirements specified in the 
    authorizing law was held a proper limitation restricting the 
    availability of funds and in order.

    On May 4, 1966,(9) the Committee of the Whole was 
considering H.R. 14745, a Departments of Labor, and Health, Education, 
and Welfare appropriation bill. The Clerk read as follows, and 
proceedings ensued as indicated below:
---------------------------------------------------------------------------
 9. 112 Cong. Rec. 9833, 89th Cong. 2d Sess.
---------------------------------------------------------------------------

        Amendment offered by Mr. [Frank T.] Bow [of Ohio]: On page 17, 
    at the end of line 18, strike out the period and insert the 
    following: ``Provided further, That this appropriation shall not be 
    available for payments to any local educational agency on account 
    of (1) three per centum of the total number of children in average 
    daily attendance in cases of children of parents who reside and 
    work on Federal property, or (2) six per centum of the total number 
    of children in average daily attendance in cases of children of 
    parents who reside or work on Federal property, or (3) local 
    contribution rates not determined in accordance with the first two 
    sentences of section 3(d) of such Act, as amended (20 U.S.C. 
    238(d)), with respect to the areas covered thereby.''
        Mr. [Joel T.] Broyhill of Virginia: Mr. Chairman, a point of 
    order.
        The Chairman: (10) the gentleman will state his 
    point of order.
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10. Frank Thompson, Jr. (N.J.).
---------------------------------------------------------------------------

        Mr. Broyhill of Virginia: I make a point of order in that this 
    would be legislation on an appropriation bill, because it would 
    change the basic formula which is contained in the authorizing 
    legislation. . . .
        The Chairman: The Chair notes that the three categories which 
    are set forth in the amendment are merely limitations on an 
    appropriation bill and are proper in its context. The point of 
    order is overruled.

    Parliamentarian's Note: The Chair apparently took the view that the 
distribution of funds under the amendment did not represent an 
alteration of the formula existing in law for allocating funds in 
federally impacted areas; rather, that the amendment merely withheld a 
portion of the funds that otherwise would have been distributed, the 
statutory formula nevertheless remaining intact. In other rulings, 
provisions relating to appropriations for educational assistance have 
been prohibited as constituting a distributional scheme different from 
that set forth in the authorizing law and, in some cases, as requiring 
additional duties not found in existing law on the part of 
administrative officials. See, for example, Sec. Sec. 36.10-36.12, 
52.18 and 52.19, supra.

[[Page 6429]]

Sec. 73.2 Where legislation authorizing funds for impacted school aid 
    establishes an apportionment formula for distribution of that aid 
    to educational agencies, language in a general appropriation bill 
    reducing, in a uniform manner, amounts available to all agencies 
    for a certain category of such aid does not violate Rule XXI clause 
    2.

    On Apr. 7, 1971,(11) during consideration in the 
Committee of the Whole of the Education Department appropriation bill 
(H.R. 7016), a point of order was raised against the following 
provision:
---------------------------------------------------------------------------
11. 117 Cong. Rec. 10096, 92d Cong. 1st Sess.
---------------------------------------------------------------------------

               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), $577,000,000, of which . . . 
    $15,000,000 . . . shall be for providing school facilities as 
    authorized by said Act of September 23, 1950: Provided, That none 
    of the funds contained herein shall be available to pay any local 
    educational agency in excess of 68 per centum of the amounts to 
    which such agency would otherwise be entitled pursuant to section 
    3(b) of title I: Provided further, That none of the funds contained 
    herein shall be available to pay any local educational agency in 
    excess of 90 per centum of the amounts to which such agency would 
    otherwise be entitled pursuant to section 3(a) of said title I if 
    the number of children in average daily attendance in the schools 
    of that agency eligible under said section 3(a) is less than 25 per 
    centum of the total number of children in such schools.
        Mr. [James G.] O'Hara [of Michigan]: Mr. Chairman, a point of 
    order.
        The Chairman: (12) The gentleman will state his 
    point of order.
---------------------------------------------------------------------------
12. Chet Holifield (Calif.).
---------------------------------------------------------------------------

    Mr. O'Hara: Mr. Chairman, I make a point of order against the 
provisos appearing on page 3, beginning at line 4 and running through 
line 15.

        Mr. Chairman, the point of order is that the language referred 
    to constitutes legislation in an appropriation bill. It provides a 
    different method of making adjustments where necessitated by 
    appropriations than that provided in the authorizing legislation; 
    to wit, in section 203(c)(4) of Public Law 91-230. . . .
        The Chairman: Does the gentleman from Pennsylvania desire to be 
    heard on the point of order?
        Mr. [Daniel J.] Flood [of Pennsylvania]: Thank you, Mr. 
    Chairman.
        Mr. Chairman, the language to which the gentleman objects is 
    clearly a limitation on the use of funds contained in this bill. 
    The language is germane and it is completely negative. In the words 
    of Chairman Nelson Dingley of Maine, which are quoted in Cannon's 
    Procedure in the House of Representatives--Chairman Dingley said:

[[Page 6430]]

            The House in Committee of the Whole has the right to refuse 
        to appropriate for any object, either in whole or in part, even 
        though that object may be authorized by law. That principal of 
        limitation has been sustained so repeatedly that it may be 
        regarded as a part of the parliamentary law of the Committee of 
        the Whole. . . .

        The Chairman: The Chair is prepared to rule.
        The precedents which the gentleman from Michigan (Mr. O'Hara) 
    pointed to are quite familiar to the Chair. There is a subtle 
    difference between those amendments and the language that is before 
    us.
        [The Chair has] examined these two provisions appearing in the 
    bill on page 3 and [has] reviewed the provisions of Public Law 874, 
    including the two rulings which were made by the Chair a year ago 
    on April 14 and February 19.
        The first proviso uniformly reduces the amount available to the 
    school districts which are entitled to funds under section 3(b) of 
    Public Law 874, which is the section of the law which applies to 
    local educational agencies where the impact is due to children of 
    parents who reside or work on Federal property.
        The second proviso limits the entitlement of certain local 
    educational agencies where the impact is due to school attendance 
    of children whose parents both reside and work on Federal property 
    as determined by section 3(a) of Public Law 874 if the number of 
    such children is less than 25 percent of the total number of 
    children in such school.
        Under the law, the Commissioner of Education is already 
    required to determine the number of such children in this category 
    in average daily attendance and the schools so affected. 
    Determining these districts or local agencies where the 25-percent 
    limitation applies thus presents the Commissioner with no 
    substantial additional duties. He is already required by basic law 
    to make that determination.
        The Chair feels the decision of the committee is valid; that 
    these provisos are in fact limitations couched in negative language 
    on the funds in the bill. The Chair therefore overrules the point 
    of order.

Health, Education, and Welfare Building Construction

Sec. 73.3 Language in an appropriation bill providing that none of the 
    funds in the bill shall be used for construction or planning of any 
    building of the Department of Health, Education, and Welfare, nor 
    to pay the salary of anyone in connection therewith, under the 
    lease-purchase program, was held to be a limitation and in order.

    On Apr. 3, 1957,(13) during consideration in the 
Committee of the Whole of H.R. 6287, a Departments of Labor, and 
Health, Education, and Welfare appropriation bill, a point of order was 
overruled as follows:
---------------------------------------------------------------------------
13. 103 Cong. Rec. 5040, 85th Cong. 1st Sess.
---------------------------------------------------------------------------

        Sec. 211. None of the funds provided herein shall be used, 
    either directly or

[[Page 6431]]

    indirectly, for construction or planning of any building for the 
    Department of Health, Education, and Welfare under the lease-
    purchase program, nor shall any of the funds provided herein be 
    used to pay the salary of any person who assists or consults with 
    anyone in connection with the construction or planning of any 
    building for the Department of Health, Education, and Welfare under 
    the lease-purchase program.
        Mr. (John W.) Byrnes of Wisconsin: Mr. Chairman, I make a point 
    of order against section 211 in its entirety as being legislation 
    on an appropriation bill. . . .
        The Chairman: (14) The Chair is ready to rule.
---------------------------------------------------------------------------
14. Aime J. Forand (R.I.).
---------------------------------------------------------------------------

        The gentleman from Wisconsin makes a point of order against 
    section 211 on page 38 of the bill. The Chair has read the section 
    and finds that it is a pure limitation, and therefore overrules the 
    point of order.

College Housing Construction; No Funds ``Unless in Compliance With 
    Law''

Sec. 73.4 To an appropriation bill providing for construction of 
    college housing, an amendment specifying that none of the funds may 
    be allocated to an institution unless it is in full compliance with 
    a law requiring the withholding of funds to students who are 
    convicted of engaging in campus disorders was held to be a 
    limitation (not requiring additional duties on the part of any 
    federal official) and in order.

    On June 24, 1969,(15) the Committee of the Whole was 
considering H.R. 12307, an appropriation bill for independent offices 
and the Department of Housing and Urban Development. The Clerk read as 
follows:
---------------------------------------------------------------------------
15. 115 Cong. Rec. 17085, 91st Cong. 1st Sess.
---------------------------------------------------------------------------

        For payments authorized by section 1705 of the Housing and 
    Urban Development Act of 1968, $2,500,000: Provided, That the 
    limitation otherwise applicable to the total payments that may be 
    required in any fiscal year by all contracts entered into under 
    such section is increased by $5,500,000.
        Mr. [William J.] Scherle [of Iowa]: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Scherle: On page 35, at the end of 
        line 24, strike the period and insert the following: ``And 
        provided further, That none of the funds appropriated by this 
        act for payments authorized by section 1705 of the Housing and 
        Urban Development Act of 1968, shall be used to formulate or 
        carry out any grant or loan to any institution of higher 
        education unless such institution shall be in full compliance 
        with section 504 of Public Law 90-575.''

        Mr. [William F.] Ryan [of New York]: Mr. Chairman, I make a 
    point of order against the amendment.
        The Chairman: (16) The gentleman will state his 
    point of order.
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16. John S. Monagan (Conn.).

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[[Page 6432]]

        Mr. Ryan: I make a point of order on the ground that this 
    amendment is legislation on an appropriation bill. . . .
        Mr. Scherle: Mr. Chairman, the amendment is in order because it 
    is in conformity with rule 21, clause 2 . . . specifying that 
    amendments to appropriation bills are in order if they meet the 
    qualifications of the ``Holman Rule.''
        My amendment is germane, negative in nature, and shows 
    retrenchment on its face. It does not either impose any additional 
    or affirmative duties or amend existing law. . . .
        In support of my amendment, I cite section 843 of the rules of 
    the House discussing the Holman rule under rule 21: . . .
        The Chairman: The Chair is prepared to rule and holds that the 
    amendment is a proper limitation. Therefore, the Chair overrules 
    the point of order.

    Parliamentarian's Note: This ruling (and Public Law No. 90-575 
Sec. 504) are discussed more fully in Sec. 53, supra, in relation to 
other rulings which concern the issue of what constitutes the 
imposition of additional duties on officials, and whether the 
imposition of such duties on nonfederal officials or private parties 
amounts to legislation on appropriation bills. (See the ``Note on 
Contrary Rulings'' following Sec. 53.6.) Such rulings have not been 
uniform, and some effort in Sec. 53 is made to clarify the trend of 
these rulings. Rulings discussed include those with respect to attempts 
to limit or prohibit funds for certain types of projects not having 
``local'' approval, where such approval is not required in the 
authorizing law.

Discrimination

Sec. 73.5 To the labor-federal security appropriation bill, an 
    amendment providing that no part of any appropriation under one of 
    its titles shall be paid as grants to state or educational 
    institutions in which because of race, color, or creed, 
    discriminatory practices deny equality of educational opportunity 
    or employment was held germane and in order.

    On Mar. 8, 1948,(17) an amendment was offered as follows 
to the Department of Labor and Federal Security Agency appropriation 
bill of 1949: (18)
---------------------------------------------------------------------------
17. 94 Cong. Rec. 2356, 80th Cong. 2d Sess.
18. H.R. 5728.
---------------------------------------------------------------------------

        Amendment offered by Mr. [Vito] Marcantonio [of New York]: On 
    page 27, after line 22, insert a new section:
        ``Sec. 207. No part of any appropriation under this title shall 
    be paid as grants to any State or educational institution in which, 
    because of race, color, or creed, discriminatory practices

[[Page 6433]]

    deny equality of educational opportunity or employment to any one 
    to pursue such educational courses or employment as are provided 
    for by such a grant.''

    The point of order which followed did not expressly raise the issue 
of whether the above language constituted legislation, but the Chair, 
in ruling that the amendment was germane, implicitly recognized Mr. 
Marcantonio's position that the amendment was permissible as a negative 
limitation on the use of funds. The point of order and ruling thereon 
were as follows:

        Mr. [John E. Rankin] [of Mississippi]: Mr. Chairman, I make a 
    point of order against the amendment that the amendment is not 
    germane and it is not in order at this point in the bill. I will 
    reserve the point of order if the gentleman wants to discuss the 
    matter.
        Mr. Marcantonio: No. Let us have it decided now. . . . The 
    amendment certainly is germane. It is simply a negative limitation. 
    It restricts the use of the funds and it is clearly in order.
        The Chairman [Forest A. Harness, of Indiana]: There is no 
    question but that the amendment is germane. This is an 
    appropriation bill and the amendment deals with an appropriation 
    made in the bill. Therefore the Chair overrules the point of 
    order.(19)
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19. See also Sec. Sec. 61 and 68, supra, for more precedents relating 
        to civil liberties.
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Cut Off in Certain Education Funds to Students

Sec. 73.6 Where existing law authorized basic opportunity grants for 
    higher education assistance to students in all years of study, an 
    amendment prohibiting the availability of funds in a general 
    appropriation bill for assistance to students enrolled prior to a 
    date certain was held in order as a negative limitation on the use 
    of funds in the bill.

    On June 27, 1974,(20) during consideration of the 
Departments of Labor, and Health, Education, and Welfare appropriation 
bill (H.R. 15580), the following amendment was ruled in order as 
indicated below:
---------------------------------------------------------------------------
20. 120 Cong. Rec. 21671, 21672, 93d Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [Daniel J.] Flood [of Pennsylvania]: Mr. Chairman, I offer 
    an amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Flood: Page 18, line 7, insert ``: 
        Provided, That none of the funds in this Act shall be used to 
        pay any amount for basic opportunity grants for full-time 
        students at institutions of higher education who were enrolled 
        as regular students at such institutions prior to April 1, 
        1973.'' . . .

        Mrs. [Edith] Green of Oregon: Mr. Chairman, I make a point of 
    order

[[Page 6434]]

    against this amendment. The point of order is what I cited a moment 
    ago, Cannon's Procedure in the House of Representatives, on page 
    246:

            If a part of a paragraph . . . is out of order, all is out 
        of order and a point of order may be raised against the portion 
        out of order or against the entire paragraph. . . .

        The Chairman: (1) The Chair is prepared to rule.
---------------------------------------------------------------------------
 1. James C. Wright, Jr. (Tex.).
---------------------------------------------------------------------------

        The amendment offered by the gentleman from Pennsylvania (Mr. 
    Flood), does appear to meet the tests of a limitation on an 
    appropriation bill. It limits the funds in this specific bill and 
    it is negatively stated. For these reasons it would clearly appear 
    to be admissible as a limitation, distinguishable from that 
    language which was stricken in the proviso that had appeared in the 
    original bill.
        The Chair does not understand that the gentlewoman had raised a 
    point of order against the entire paragraph. The gentlewoman raised 
    two specific points of order on which the Chair ruled.
        If the gentlewoman had at that time intended to make a point of 
    order against the entire paragraph she should so have stated, and 
    the Chair believes that a point of order at this moment on those 
    grounds would be untimely made since an amendment to the paragraph 
    is now pending.

Busing to Schools Nearest Home

Sec. 73.7 Where existing law prohibited the implementation by any 
    court, department, or agency of a plan to transport students to a 
    school other than the school nearest or next nearest their homes 
    which offers the appropriate grade level and type of education for 
    each student (thus requiring determinations of school proximity and 
    curriculum to be made by federal officials), a paragraph in a 
    general appropriation bill prohibiting the use of funds therein for 
    the transportation of students to a school other than the school 
    nearest their homes and offering the courses of study pursued by 
    such students was held in order as a negative limitation on the use 
    of funds in that bill, since it did not directly amend existing law 
    and did not require new determinations by federal officials that 
    they were not already required by law to make.

    The proceedings of June 24, 1976,(2) are discussed in 
Sec. 64.26, supra.
---------------------------------------------------------------------------
 2. 122 Cong. Rec. 20408-10, 94th Cong. 2d Sess.

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[[Page 6435]]

Abortion; Broad Limitation of Funds

Sec. 73.8 An amendment restricting the use of funds in an appropriation 
    bill for abortion or abortion referral services, abortifacient 
    drugs or devices, the promotion or encouragement of abortion, 
    etcetera, was held to be a negative limitation on funds in the bill 
    imposing no new duties on federal officials other than to construe 
    the language of the limitation in administering the funds.

    On June 27, 1974,(3) during consideration in the 
Committee of the Whole of the Departments of Labor, and Health, 
Education, and Welfare appropriation bill (H.R. 15580), an amendment 
was held in order as follows:
---------------------------------------------------------------------------
 3. 120 Cong. Rec. 21687, 93d Cong. 2d Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Amendment offered by Mr. [Angelo D.] Roncallo of New York:
            Amend H.R. 15580 by adding a new section 412 on page 39 of 
        the bill as follows:
            Sec. 412. No part of the funds appropriated under this Act 
        shall be used in any manner directly or indirectly to pay for 
        abortions or abortion referral services, abortifacient drugs or 
        devices, the promotion or encouragement of abortion, or the 
        support of research designed to develop methods of abortion, or 
        to force any State, school or school district or any other 
        recipient of Federal funds to provide abortions or health or 
        disability insurance abortion benefits. . . .

        Mr. [Sidney R.] Yates [of Illinois]: Mr. Chairman, I make a 
    point of order against the second amendment proposed by the 
    gentleman from New York.
        My grounds are the same as to the previous amendment, Mr. 
    Chairman; namely, that this is legislation on an appropriation 
    bill.
        Second, that it requires new duties on the part of officials in 
    connection with the operation of this amendment.
        I particularly call the attention of the Chair to the use of 
    the term ``promotion or encouragement of abortion.''
        This phrase will require additional duties on the part of the 
    outside officials. Therefore, it goes beyond the scope of an 
    appropriation provision. . . .
        Mr. [Bob] Eckhardt [of Texas]: . . . The language of the 
    revised section 412 necessarily requires a definition of what 
    constitutes the moment of fertilization, in that the term 
    abortifacient drug or devices is used.
        Now, the question of whether or not a drug or device is 
    abortifacient depends on the moment of fertilization. If it is to 
    be not abortifacient, it prevents fertilization. If it comes under 
    the language of this act, the moment of fertilization must occur 
    before the drug or the device acts upon the inseminated egg.

        Therefore, there is an absolutely necessary determination by 
    the agency of the moment of fertilization.
        Furthermore, there is the term abortion, the term abortion must 
    nec

[[Page 6436]]

    essarily determine the definition as contained in the last line 
    and, therefore, requires affirmative duties on the part of the 
    agency. . . .
        Mr. [Robert E.] Bauman [of Maryland]: Mr. Chairman, as 
    originally offered, the amendment of the gentleman from New York 
    definitely did require some sort of action on the part of the 
    Government officials, but I heartily disagree with the statements 
    that have been made here.
        There are no additional duties imposed whatsoever. In fact, 
    like the antibusing amendment in the two other sections, it is a 
    limitation on the expenditure of funds in this bill just as the 
    rules provide. No new duties and no directions are allowed. 
    Abortion is a well understood term, and is found in any dictionary. 
    It is perfectly admissible under the rules of the House.
        The Chairman: (4) The Chair is prepared to rule.
---------------------------------------------------------------------------
 4. James C. Wright, Jr. (Tex.).
---------------------------------------------------------------------------

        As originally offered, the amendment contained a definition of 
    abortion which would have defined that term as being the 
    intentional destruction of unborn human life, which subjected the 
    amendment to a successful challenge on the ground that it would 
    have imposed upon an administrator the responsibility of 
    determining a question of another person's intent.
        There have been precedents under which that type of a 
    requirement has been held to be legislation on an appropriation 
    bill.
        As presently constituted, the amendment secondly offered by the 
    gentleman from New York, in the opinion of the Chair, contains no 
    direction nor immediately discernible new duty incumbent upon its 
    administrator beyond the fact that every limitation is a 
    compilation of words if it is written into a law, and it always 
    would devolve upon an administrator to interpret the meaning of the 
    words therein contained. It would be, of course, manifestly 
    contrary to the main thrust of the rulings of the Chair if 
    limitations were to be construed as legislation merely because 
    their enactment would require some statutory interpretation.
        Under the circumstances, the Chair, the present occupant having 
    carefully examined the amendment and carefully listened to the 
    arguments, is constrained to overrule the point of order.

Occupational Safety and Health Act Enforcement--Salary Cut Off for 
    Inspectors of Certain Size Firms

Sec. 73.9 An amendment prohibiting the payment of funds for salaries of 
    federal employees ``who inspect firms employing 25 or fewer persons 
    to enforce compliance with the Occupational Safety and Health Act'' 
    was held in order as a negative limitation on the availability of 
    funds in a general appropriation bill which merely described a 
    category of employees who would not be compensated from those 
    funds.

        On June 27, 1974,(5) during consideration in the 
    Committee of the Whole of

[[Page 6437]]

    the Departments of Labor, and Health, Education, and Welfare 
    appropriation bill (H.R. 15580), an amendment was held in order as 
    follows:
---------------------------------------------------------------------------
 5. 120 Cong. Rec. 21652, 21662, 21663, 93d Cong. 2d Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:
        For necessary expenses for the Occupational Safety and Health 
    Administration, $100,816,000.
        Mr. [Paul] Findley [of Illinois]: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Findley: On Page 6, after line 17, 
        add the following:
            ``None of the funds appropriated by this Act shall be 
        expended to pay the salaries of any employees of the Federal 
        Government who inspect firms employing twenty-five or fewer 
        persons to enforce compliance with the Occupational Safety and 
        Health Act of 1970.'' . . .

        Mr. [Joseph M.] Gaydos [of Pennsylvania]: Mr. Chairman, I have 
    to raise a point of order for the reason it is a limitation on an 
    appropriation bill.
        Very hurriedly, let me state that a limitation on an 
    appropriation bill is legitimate if and only if:
        First, it is worded so that it limits the use of money, rather 
    than limiting the discretion of an Executive officer to carry out 
    his duties;
        Second, it applies only to the use of the present appropriation 
    rather than attempting to legislate a permanent restraint on the 
    spending authority of an Executive officer.
        An amendment which forbids the Secretary of the Treasury from 
    paying the salary of OSHA inspectors out of the current DOL 
    appropriation for the inspections of premises of employers with 25 
    or fewer employees, would seem to meet these criteria. There are, 
    however, three arguments which seem to indicate that this 
    limitation is in fact legislation and therefore not appropriate 
    under House rule 21, clause 2.
        First, section 8(f) of the act provides that an employee in any 
    size business may file a complaint with the Secretary of Labor, and 
    the Secretary must respond to such complaint. Further, this 
    employee right is protected by the antidiscrimination clause of 
    section 11(c) of the act. Failure to provide the Secretary with the 
    funds to respond to these employee complaints leaves these 
    employees with a protected right but without a remedy, a situation 
    abhorred by the law. It effectively amends OSHA to remove the right 
    for a group of employees, and there is no rational basis for this 
    sort of discrimination. While it is well established that the 
    Congress may pass a law creating a Government authority or function 
    and then withhold funds from it, it is questionable whether there 
    is any precedent for using a limitation to delete the remedy for a 
    legislatively established right vested in an individual. The mover 
    of the amendment should be asked to provide such a precedent.
        Second, the inspectors used by the Secretary of Labor to carry 
    out all investigations are assigned to regions at the present time 
    on the basis of the concentration of businesses in each region--all 
    businesses. The vast majority of businesses do employ under 25 
    persons, and following the terms of the amendment, these could no 
    longer be counted in the computation by the Secretary of Labor. . . 
    . In short the amendment imposes a substantial burden upon the 
    Secretary of Labor, and

[[Page 6438]]

    the precedents are clear that a limitation may not impose any 
    additional duties upon an executive officer.
        Finally, OSHA is a carefully developed law which was the result 
    of deliberate balancing of employee and employer rights by the 
    appropriate committees of the Congress, and any change in that 
    balance effectively constitutes legislation. Since the amendment 
    would change the rights of some employees, it should, therefore, 
    not be attached to an appropriations bill. . . .
        Mr. Findley: . . . Mr. Chairman, in fact this language is so 
    close to being identical to a number of other similar amendments 
    offered and sustained by rulings of the Chair, that I am surprised 
    that any point of order would be raised. It is clearly within the 
    rule that it is retrenchment on its face. It establishes no 
    obligation on the part of the executive branch for additional 
    duties. It requires no determination. It does not go beyond the 
    fiscal year involved, and it simply withholds the salaries for a 
    specified purpose. . . .
        The Chairman: (6) The Chair is prepared to rule.
---------------------------------------------------------------------------
 6. James C. Wright, Jr. (Tex.).
---------------------------------------------------------------------------

        The gentleman from Pennsylvania makes a point of order that the 
    amendment offered by the gentleman from Illinois constitutes 
    legislation on an appropriation bill, as distinguished from an 
    authorization, and therefore it would be in violation of clause 2, 
    rule XXI.
        The Chair has examined the amendment and the provisions of the 
    Occupational Safety and Health Act, Public Law 91-596. The 
    amendment would prohibit the use of funds in the bill for the 
    payment of the salaries of Federal employees who inspect firms 
    employing 25 or fewer persons with respect to compliance under that 
    act.
        Clearly, as the gentleman from Pennsylvania acknowledges, and 
    as all the precedents would attest, the House could refuse to 
    appropriate any sums whatever for the administration of the act in 
    question. Or, it could prohibit the appropriation of any funds to 
    pay the salaries of any inspecting officers under the act. This 
    particular amendment merely limits the use of funds in the bill for 
    a certain described category of such employees.
        The gentleman from Pennsylvania suggests that this fact would 
    render the burden upon the executive branch and the administrators 
    to make precise determinations, and that it would have a 
    discriminatory effect.
        The Chair has examined several precedents which relate to 
    restrictions on the payment of appropriations for certain salaries 
    or expenses. On June 6, 1963, Chairman Keogh ruled that to a bill 
    appropriating funds for the Department of Agriculture, an amendment 
    providing that--

            None of the funds herein shall be used to pay the salary of 
        any  . . . employee who  . . . performs duties  . . . 
        incidental to supporting the price of  . . . cotton at a level 
        in excess of 30 cents a pound.

        Was a proper limitation, and admissible under the rules of the 
    House.
        On June 6, 1941, Chairman Lanham ruled that an amendment to a 
    military appropriation bill providing that no funds therein shall 
    be paid as compensation to any person employed in the manufacture 
    of defense articles who stops work in excess of 10 days on

[[Page 6439]]

    a strike, or who fails to resume work within 3 days after the 
    Government takes over such a plant, was a valid limitation.
        The Chair would also simply call attention to Cannon's volume 
    7, paragraphs 1663 and 1689, which were cited by Chairman Gibbons 
    on the agriculture and environmental consumer appropriation bill on 
    Friday last, when that Chairman overruled a point of order that a 
    limitation therein on the payment of salaries or funds in the bill 
    constituted legislation.
        The Chair feels that the amendment offered by the gentleman 
    from Illinois is a valid limitation on the use of funds 
    appropriated in this bill, and therefore overrules the point of 
    order.

--Monitoring State Procedures

Sec. 73.10 An amendment denying the use of funds for state plan 
    monitoring visits by the Occupational Safety and Health 
    Administration where the workplace has been inspected by a state 
    agency within six months, but also providing that the limitation 
    would not preclude the federal official from conducting a 
    monitoring visit at the time of the state inspection, to 
    investigate complaints about state procedures, or as part of a 
    special study program, or to investigate a catastrophe was held not 
    to require new determinations by federal officials, where existing 
    law directed state agencies to inform federal officials of all 
    their activities under state plans.

    The proceedings of June 27, 1979,(7) are discussed in 
Sec. 66.6, supra.
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 7. 125 Cong. Rec. 17033-35, 96th Cong. 1st Sess.
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--No Funds to Enforce Certain Regulations

Sec. 73.11 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 maintaining a temporary labor 
    camp, the amendment was held not to constitute additional 
    legislation on an appropriation bill; the determination as to the 
    category in which the business fell

[[Page 6440]]

    with respect to the average injury lost work day rate, and the 
    determination whether that average was less than the national 
    average, were easily ascertainable from statistics periodically 
    published, pursuant to law, by the Bureau of Labor Statistics; the 
    permissible functions and authorities funded by the amendment were 
    all authorized in existing law; and the exemption as to certain 
    farming operations restated a legislative provision already in the 
    bill, in the paragraph to which the amendment related.

    On Aug. 27, 1980,(8) during consideration in the 
Committee of the Whole of the Departments of Labor, and Health, 
Education, and Welfare appropriation bill (H.R. 7998), a point of order 
against the following amendment was overruled:
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 8. 126 Cong. Rec. 23519-21, 96th Cong. 2d Sess.
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        Amendment offered by Mrs. [Beverly B.] Byron (of Maryland): At 
    page 10, line 10, insert after ``fishing:'' the following new 
    proviso:
        ``Provided further, That no funds appropriated under this 
    paragraph shall be obligated or expended to administer or enforce 
    any standard, rule, regulation, or order under the Occupational 
    Safety and Health Act of 1970 with respect to any employer of ten 
    or fewer employees who is included within a category having an 
    occupational injury lost work day case rate, at the most precise 
    Standard Industrial Classification Code for which such data are 
    published, less than the national average rate as such rates are 
    most recently published by the Secretary, acting through the Bureau 
    of Labor Statistics, in accordance with section 24 of that Act (29 
    U.S.C. Sec. 673), except  . . .
        ``(6) to take any action authorized by such Act with respect to 
    complaints of discrimination against employees for exercising 
    rights under such Act: Provided further, That the foregoing proviso 
    shall not apply to any person who is engaged in a farming operation 
    which does not maintain a temporary labor camp and employs 10 or 
    fewer employees''. . . .
        Mr. [Joseph M.] Gaydos [of Pennsylvania]: Mr. Chairman, I raise 
    a point of order against this amendment for the reason that it is 
    legislation on an appropriations bill. The amendment changes 
    existing statutory law and, in effect, amends the Occupational 
    Safety and Health Act of 1970 by exempting a specific class of 
    employers from the integral provisions of the act. This amendment 
    goes far beyond reducing or restricting the amount of money in the 
    appropriation.
        The language of this amendment would clearly impose on OSHA 
    officials new additional duties not otherwise required by existing 
    law. Look at all the additional determinations to be made by the 
    Department of Labor. OSHA officials, under this amendment, would be 
    required to make determinations on the exempt status of firms which 
    are not required by existing law. . . .

[[Page 6441]]

        . . . This amendment serves to change existing law by adding to 
    the basic statute conditions or requirements governing the scope of 
    investigations and the assessment of penalties pursuant to these 
    investigations. In other words, this amendment provides an 
    affirmative direction to executive officials in situations where 
    the statute provides these officials with the discretion in the 
    exercise of their authority. . . .
        . . . [A]ccording to Deschler's Procedure, language in a 
    paragraph of a--
        General appropriations 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 F.T.C.--
    a restriction on the scope of the investigation rather than a 
    limitation on availability of funds. . . .
        The amendment before us directly interferes with the 
    discretionary authority of OSHA by limiting the scope of general 
    schedule safety inspections to only those inspections or 
    investigations meeting the substantive requirements of the 
    amendment. This approach is tantamount to limiting the safety 
    inspections to a fixed number of firms. . . .
        Mrs. Byron: . . . Mr. Chairman, I rise in opposition to the 
    point of order. This amendment does not impose any additional 
    duties upon the Secretary of Labor, and therefore is not 
    legislation in an appropriation bill. . . .
        . . . In order to comply with the limitation regarding the size 
    of the business and the safety records of the industry, no new 
    duties are required of the Secretary. Section 24 of the 
    Occupational Safety and Health Act already requires the Secretary 
    to maintain occupational and safety health statistics. Section 
    1904-20 of title XXIX of the Code of Federal Regulations 
    specifically includes the exact statistics that are utilized in the 
    first part of my amendment. . . .
        The Chairman: (9) . . . The Chair is prepared to 
    rule. . . .
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 9. Don Fuqua (Fla.).
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        . . . In reviewing the amendment, it would prohibit the use of 
    funds in the bill to enforce standards or rules under the 
    Occupational Safety and Health Act with respect to certain 
    employers, except for enumerated functions and activities 
    authorized under such Act. The amendment applies to employers with 
    10 or fewer employees whose business falls within a category having 
    an injury work loss day rate less than the national average as 
    indicated by statistics published by the Bureau of Labor pursuant 
    to law. The amendment does not require individual findings of 
    injury rates in each separate business, but only a determination as 
    to the category into which the business falls.
        The Chair has reviewed the set of statistics that is required 
    by section 673 of the OSHA law, and finds that the determination as 
    to what category that the business relates to and the relationship 
    between the average rate for that category and the average rate for 
    all business is very easily ascertainable and is now being 
    undertaken under OSHA regulations. . . .
        No new duties or determinations are hereby required, and the 
    final proviso, while requiring findings as to the tem

[[Page 6442]]

    porary status of a farm labor camp, is already in the bill and the 
    amendment does not add legislation to that permitted to remain in 
    the bill. . . .
        The amendment restricts the use of funds to carry out part of 
    the authorized activity while allowing but not requiring the agency 
    to use funds in the bill to carry out other authorized activities. 
    While an amendment to an 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.
        The Chair overrules the point of order.

Reduction in Trade Adjustment Assistance by Amount of Unemployment 
    Insurance

Sec. 73.12 Where existing law (19 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 
    was held not to impose new duties upon officials already required 
    to make those reductions.

        The proceedings of June 18, 1980,(10) are discussed 
    in Sec. 52.36, supra.
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10. 126 Cong. Rec. 15354-56, 96th Cong. 2d Sess.
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