[Deschler's Precedents, Volume 8, Chapter 26]
[Chapter 26. Unauthorized Appropriations; Legislation on Appropriation Bills]
[F. Permissible Limitations on Use of Funds]
[Â§ 65. Imposing "Incidental" Duties]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 6311-6315]
 
                               CHAPTER 26
 
    Unauthorized Appropriations; Legislation on Appropriation Bills
 
               F. PERMISSIBLE LIMITATIONS ON USE OF FUNDS
 
Sec. 65. Imposing ``Incidental'' Duties

Duties Already Required by Law

Sec. 65.1 The fact that a limitation on the use of funds in a general 
    appropriation bill will impose certain incidental burdens on 
    executive officials will not destroy the character of the 
    limitation so long as those duties--such as statistical comparisons 
    and findings of residence and employment status--are already 
    mandated by law.

    On Aug. 25, 1976,(14) the Chair held that, 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 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 prospec

[[Page 6312]]

tive employees had resided in the area and had been unemployed for a 
stated length of time was in order as a limitation which did not impose 
upon federal officials any substantially new duties not already 
required by existing law. The proceedings were as indicated below:
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14. 122 Cong. Rec. 27737-39, 94th Cong. 2d Sess. See also Sec. 52, 
        supra, for general discussion of provisions imposing new duties 
        on executive officials. And see Sec. 73.8, infra.
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        The Clerk read as follows:

            For expenses necessary to carry out title I of the Public 
        Works Employment Act of 1976 (Public Law 94-369), 
        $2,000,000,000: Provided, That not to exceed $10,000,000 may be 
        used for necessary administrative expenses, including expenses 
        for program evaluation by the Secretary of Commerce: Provided 
        further, None of the funds appropriated under this Chapter 
        shall be available for any project where less than ten percent 
        of the personnel to be employed on the project have currently 
        resided for at least thirty days in the area used in 
        determining project eligibility under Section 108(e) of Public 
        Law 94-369 and have been currently unemployed for at least 
        thirty days.

        Mr. [James C.] Wright [Jr., of Texas]: Mr. Chairman, I make a 
    point of order against the language included in the proviso which 
    begins on page 2, line 11, and includes line 17, page 2. . . .
        Quite obviously, Mr. Chairman, this language is legislation, in 
    that it imposes requirements not present in the authorizing 
    legislation and not present in existing law. It imposes duties or 
    determinations upon the administrator who would be required to 
    investigate, quite obviously, all of the personnel to be employed 
    on various projects and to make determinations as to where they 
    reside and how long they have there resided and, in addition, to 
    make determinations as to which of them have been currently 
    unemployed for at least 30 days.
        Now, that does indeed impose a new burden and a new 
    determination and a new duty upon the Administrator.
        Citing Deschler's Procedures in the U.S. House of 
    Representatives, chapter 26, section 11, I quote the following:

            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 
        investigation, 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.

        It should not be necessary for me to recite any lengthy number 
    of precedents since they abound. May I offer only two. In the 1st 
    session of the 91st Congress, on July 31, 1969, the Chair ruled 
    that an amendment to an education appropriation bill including the 
    words, ``in order to overcome racial imbalance,'' would be 
    legislation on an appropriation bill because it would impose 
    additional duties and determinations on school officials.
        On another occasion, during the second session of the 89th 
    Congress, on October 4, 1966, it was held by the Chair that a 
    general appropriation bill providing funds for Federal highways 
    constituted legislation if it included a provision specifying that 
    ``No funds shall be used for any highway . . . which requires 
    either unjustified or harmful nonconforming use of land.''
        In both of those cases, as well as in numerous other cases, it 
    has been uni

[[Page 6313]]

    formly held by the Chair that any provision in an appropriation 
    bill which imposes additional determinations and requirements upon 
    an administrator to make investigations or compile evidence or make 
    judgments and determinations not otherwise required by law is 
    legislation and, therefore, is subject to a point of order. . . .
        Mr. [Elford A.] Cederberg [of Michigan]: Mr. Chairman, [the 
    proviso] is a limitation on funds in the bill, and it is restricted 
    only to funds in the bill. It is consistent with but does not 
    change existing law. The application of the limitation requires 
    only information which it is the intention of the Department of 
    Commerce to obtain under the rules and regulations required by 
    existing law.
        . . . Public Law 94-369, the Public Works Employment Act of 
    1976, provides in section 107--and I will read only part of the 
    section--as follows:

            The Secretary shall consider among other factors (1) the 
        severity and duration of unemployment in proposed project 
        areas, (2) the income levels and extent of underemployment in 
        proposed project areas. . . .

        Then section 108(e) of the act . . . [requires] the Department 
    of Commerce to issue rules and regulations and also [requires] that 
    any grant made to a local government based upon the unemployment 
    rate of a community or neighborhood within its jurisdiction . . . 
    be for a project of direct benefit to, or provide employment for, 
    unemployed persons who are residents of that community or 
    neighborhood.
        The law was enacted on July 22, 1976. The Department of 
    Commerce on August 23, 1976, in accordance with the act, released 
    the required regulations; and I have copies of them here. . . .
        The official guidelines provide [in part]:

            The applicant's intent to hire the unemployed of a specific 
        area must be considered. . . .

        [And]

            The project must definitely benefit or provide employment 
        for unemployed persons within that neighborhood or community. . 
        . .

        Mr. Chairman, the limitation does not require any significant 
    new duty, but is based on information and findings provided for in 
    the authorization or anticipated in the regulations issued under 
    the authorization. Such limitations have been found in order. . . .
        I would also like to point out, Mr. Chairman, that the burden 
    of certification . . . would rest on the contractors. It is the 
    contractors who will certify that they will obtain information from 
    applicants on their residence and employment. . . .
        Mr. Wright: . . . I want to say two basic things which I think 
    are pertinent to this question.
        The first is that it is wholly inappropriate to rely upon so-
    called official guidelines promulgated by an administrative agency 
    to support a contention that language in an appropriation bill does 
    not place obligations upon the administrator which are not required 
    by law. The question is whether it imposes additional obligations 
    upon that administrator which are not required by existing law.
        If this Congress ever should reach the point of declaring that 
    some administrative guideline published in the

[[Page 6314]]

    Federal Register and lying there for 30 days constitutes law, then 
    we shall have abrogated our most basic responsibilities. . . .
        The gentleman from Michigan (Mr. Cederberg) quoted from a 
    portion of section 107 of the act in an effort to demonstrate that 
    the act itself requires these same determinations and findings that 
    the language in the appropriation bill would require. There is a 
    very significant difference between what the act requires and what 
    this proviso included in the appropriation bill would require.
        I call the attention of the chairman to the very language which 
    was cited by the gentleman from Michigan:

            The Secretary shall consider among other factors (1) the 
        severity and duration of unemployment in proposed project 
        areas, (2) the income levels and extent of underemployment in 
        proposed project areas, and (3) the extent to which proposed 
        projects will contribute to the reduction of unemployment.

        In other words, the requirements imposed by the law upon the 
    Secretary are very easily satisfied by statistical data available 
    through the Bureau of Labor Statistics with respect to unemployment 
    in specific areas geographically denominated within the country.
        Beyond that, however, the language which was proposed as an 
    exclusion in the appropriation bill would go much further than ask 
    the administrator to determine statistics with respect to general 
    areas. . . .
        It would expand the requirement of the determination from a 
    determination with respect to statistics applying to geographical 
    areas, to make this determination include individual employees 
    proposed to be employed on the project. And that is an enormous 
    expansion. . . .
        The Chairman: (15) The Chair is prepared to rule.
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15. James G. O'Hara (Mich.).
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        The question, of course, is whether or not this limitation, or 
    so-called limitation, imposes substantial new duties on an official 
    of the executive branch. That question has been the subject of more 
    points of order on appropriation bills than perhaps any other, or 
    at least as many as any other. It is very difficult to make that 
    determination in circumstances like the present one, because, for 
    instance, as the gentleman from Michigan cited in Deschler's 
    Procedure, chapter 25, section 10.7:

            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; but 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 Chair is also aware of the rulings involving certain 
    limitations on appropriations for food stamps. Those amendments 
    involved the issue of whether or not the household's need for food 
    stamps was a result of the fact that a breadwinner within the 
    household was unemployed because he was engaged in a concerted work 
    stoppage in a strike and imposed certain incidental duties on the 
    executive branch to make the necessary determinations. In those 
    cases the language was held to be a valid limitation upon the 
    appropriation.
        In regard to the language now before the chairman for decision, 
    the Sec

[[Page 6315]]

    retary is required in the administration of the bill to make a 
    determination that not less than 10 percent of the personnel to be 
    employed on the project have been currently for at least 30 days in 
    the area, and have been currently unemployed for at least 30 days.
        The Chair notes that the basic law does impose rather 
    substantial requirements in the sense that it requires, first, that 
    the Secretary consider among other matters the three factors listed 
    in section 107 that were mentioned by the gentleman from Texas as 
    statistical factors. The Chair agrees they are statistical factors. 
    He notes as well, though, that the gentleman from Michigan has 
    brought up the provisions of section 108(e) which go somewhat 
    further than that, and they require that any grant made to a local 
    government based upon the unemployment rate of a community or 
    neighborhood within its jurisdiction must be for a project of 
    direct benefit to, or provide employment for, unemployed persons 
    who are residents of that community or neighborhood.
        So the law already imposes some substantial duties and 
    determinations similar to those which would be required by the 
    proposed limitation in this proviso. The Chair therefore would hold 
    that the particular proviso under consideration is one that does 
    impose a valid limitation upon the use of an appropriation and that 
    the duties imposed upon the Administrator are purely incidental and 
    do not impose any substantial new duties on the administrator. 
    Therefore the Chair overrules the point of order.