# Congressional Action to Overturn Agency Rules: Alternatives to the "Legislative Veto"

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/crs%3A79-206

## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** September 24, 1979
- **Citation:** 79-206

## Text

Report No. 79-206 GOV

GOVERNMENT DOCUMENTS COLLECTION
NORTHERN KENTUCKY UNiVERSlTY

CONGRESSIONAL ACTION TO OVERTURN AGENCY RULES:
ALTERNATIVES TO THE "LEGISLATIVE VETO"

bY
Frederick M. Kaiser
Analyst in American National Government
Government Division

September 24, 1979

T h e Congressional Research Service works exclusively forthe Conqress, conducting research. analyzing legislation, and
providikg information at the request of com&ittees. \ l e u hers, and their staff's.
T h e Service makes such research available, without partisan bias, in many forms including studies, reports, compilations, digests, and background briefings. Upon request. CRS
assists committees in analyzing legislative proposals and
issues, and in assessing the possible effects of these proposals
and their alternatives. The Service's senior specialists and
subject analysts are also available for personal consultations
in their respective fields of expertise.

Congress has available a variety of statutory and nonstatutory
techniques, other than the "legislative veto," that have been used
to overturn Federal agency rules, prevent their enforcement, limit
their impact, or hinder their promulgation.

This survey of the

different statutory instruments of congressional control--direct
overturn of rules, modification of agency jurisdiction, limitations
in authorizing and appropriating statutes, requiring inter-agency
consultation, and advance notification to the Congress--discusses
a variety of mechanisms that vary in their use and their specificity,
range of impact, and length of effect.

CONTENTS

............................................. 1
I1 . STATUTORY TECLilJIQUES ..................................... 5
A . DIRECT OVERTURN OR PREEMPTION OF KULES ............. 5
1 . Discussion ................................... 5
2 . i5xamples ..................................... 6

I

.

INTRODUCTION

8

. STATUTORY
nODIPICATION OF AGENCY JURISDICTION ...... 12
1 . Discussion ................................... 12
2 . Examples ..................................... 13

. LIMIrATIONS IN AUTHORIZING AND APPROPRIATING
STATUTLS ......................................... 35
1 . Discussion .................................. 35
2 . Examples ..................................... 38
D . REQUIRING FEDERAL AGENCY PRIOR CONSULTATION AND
mVIEkJ ........................................... 49
1 . Discussion ................................... 49
2 . Examples ..................................... 50

C

. ADVANCE
OR PRIOR NOTICE PROVISIONS ................. 58
1 . Discussion .................................. 58
2 . Examples .....................................
60
I11 . NONSTATUTOKY TECHNIQUES: COMMITTEE REPORTS .............. 65
E

The author wishes to credit Robert Amorosi
for the secretarial production of this report

.

THE LIBRARY OF CONGRESS
C o n g r e s s i o n a l Research Service

WASHINGTON, D.C.

20540

CONGRESSIONAL ACTION TO OVERTURN AGENCY RULES:
ALTERNATIVES TO THE "LEGISLATIVE VETO"
I.

INTRODUCTION

Mounting interest in the "legislative veto" as a device for
congressional disapproval of Federal agency rules

L/ also has prompted

a related inquiry:

What other mechanisms are available to accomplish

the same purpose?

The most direct, of course, is a statutory rejection

of the offending rule; but other approaches, which vary in scope,
directness, and explicitness, exist.

This report, surveying recent

congressional action, identifies different legislative instruments,
with an emphasis on statutory techniques, and provides examples
illustrating their use.
Harold Bruff and Ernest Gellhorn, in a report prepared for the
Administrative Conference of the United States, highlight the principal
alternatives to the legislative veto from the vantage point of a
congressional committee:

11 "Rule" is defined in 5 U.S.C. 551(4) and includes different
typesof agency statements of general or particular applicability-establishment of standards and guidelines, rates, and regulations-designed to implement, interpret, or prescribe law or policy.
The focus of this study is on regulations, although other types
of related rules, e.g., standards, are considered also. Moreover,
the legislative techniques to override or disapprove such rules
have been applied to other types of executive and administrative
action, not just rule-making

.

Without the veto, a committee displeased with
an agency rule has two major options. It may stage
an embarrassing oversight hearing, or it may propose
legislation to rectify the problem it perceives. But
any legislation it proposes must obtain passage in
both houses of Congress and approval by the President
or a veto override. Until the proposed legislation
is adopted, a controversial agency rule, if issued,
remains in effect. If the committee chooses to
hold a hearing, the agency may resist, testing the
committee's power to obtain legislation. 11
Yet there are other types of statutory and nonstatutory techniques
that have the effect of overturning rules, that prevent their enforcement,
or that seriously impede or even preempt the promulgation of projected
rules.

For instance, a statute may alter the jurisdiction of a

regulatory agency or extend the exemptions to its authority, thereby
affecting existing or anticipated rules.

Legislation that affects an

agency's funding may be employed to prevent enforcement of particular
rules or to revoke funding discretion for rulemaking activity or both.
Still other statutory actions, less direct but potentially significant,
are mandating agency consultation with other Federal or State authorities
and requiring prior congressional review of proposed rules (separate
from the legislative veto sanctions).

Such provisions may change or

1/ Bruff, Harold H., and Ernest Gellhorn. Congressional Control
of ~dzinistrativeRegulations: A Study of Legislative Vetoes. Harvard
Law Review, v. 90, May 1977: 1423.
An overview of some of the prominent statutory and nonstatutory
techniques is included in U.S. Congress. Senate. Committee on
Government Operations. Study on Federal Regulation. Volume 11:
Congressional Oversight of Regulatory Agencies. (Committee print)
Washington, U.S. Govt. Print. Off., 1977. Chapter 6. Legislative
Committee Oversight: Techniques and Processes.
erein in after referred
to as Senate Study on Federal Regulation.)

even halt proposed rules by interjecting novel procedural ingredients
along witn different perspectives and influences into the process.
It is also useful to examine nonstatutory controls available to
tne Congress.

These techniques include legislative, oversight,

investigative, and confirmation hearings; specialized committee
staff and General Accounting Office examinations; establishment of
select commit tees and specialized subcommittees to oversee agency
rulemaking and enforcement; provisions in committee reports, especially
accompanying authorizations and appropriations, advocating agency
reconsideration oi particular rules and their implementation; floor
statements critical of specific rules or agency enforcement procedures;
and direct contact between a regulatory agency and a congressional
office that opposes existing regulations or questions projected
rules.

Sucn mechanisms are all indirect influences; unlike statutory

provisions, they are neitner self-effecting nor legally enforceable.
Nonetheless, nonstatutory devices are more readily available and
more easily efiectuated than controls imposed by statute.

Although

an explicit cause-effect relationship between such devices and the
overturn or modification of a particular rule is impossible to
determine, observers have attributed substantial influence to

-

nonstatutory controls in regulatory as well as other matters. 1/

11 Inter alia, see: Harris, Joseph P. Congressional Control
of ~dGinistration. Washington, Brookings, 1964; Ogul, Morris. Congress
(11 Continued )

-

It is impossible, in a limited time, to provide a comprehensive
and exhaustive listing of congressional actions that override or have
the effect of overturning actual and proposed rules or that prevent the
promulgation of projected rules.

Consequently, this report concentrates

upon the more direct statutory devices, although it also discusses committee
reports accompanying bills, the nonstatutory technique that is frequently
most authoritatively connected with the final legislative product.
The statutory mechanisms surveyed in this report cross a wide spectrum
of possible congressional action:
--single-purpose provisions to overturn or preempt a
specific rule;
--alterations in program authority that remove
jurisdiction from an agency;
--agency authorization and appropriation limitations;
--agency prior consultation requirements; and
--congressional prior notification provisions.

(A/

Continued) Oversees the Bureaucracy: Studies in Legislative
Supervision. Pittsburgh, University of Pittsburgh Press, 1976;
Fenno, Richard. The Power of the Purse: Appropriations Politics
in Congress. Boston, Little, Brown, 1966; Freeman, J. Leiper. The
Political Process: Executive Bureau-Legislative Committee Relations.
New York, Random House, 1965; Kirst, Michael. Government Without
Passing Laws: Congress' Nonstatutory Techniques for Appropriations
Control. Chapel Hill, University of North Carolina Press, 1969;
Melville, Charles. Legislative Control Over Administration Rule
Making. University of Cincinnati Law Review, v. 32, Winter, 1963:
33-54; Scher, Seymour. Congressional Committee Members as
Independent Agency Overseers: A Case Study. American Political
Science Review, v. 54, December, 1960: 911-920; Marx, Fritz Morstein.
Congressional Investigations: Significance for the Administrative
Process. University of Chicago Law Review, v. 18, Spring, 1951:
503-520; Vinyard, Dale. Legislative committee-Executive
Agency Relations. Western Political Quarterly, v. 21, September,
1968: 391-399; and Senate Study on Federal Regulation.

11.

A.

STATUTORY TECHNlQUfiS

UIMC'f OVEKTUkNING OK PREEMPTlON OF RULES BY STAIUTE
-

The most f u n d a m e n t a l and d i r e c t mechanism f o r C o n g r e s s t o o v e r t u r n
a r u l e i s ~ y e n a c t m e n t of a s t a t u t e which e x p l i c i t l y r e v o k e s t h e
of f e n d i n g r u l e o r p r e e m p t s t h e a r e a c o v e r e d by t h e r u l e .

Although

s e v e r a l r e c e n t e x a m p l e s c a n be c i t e d , t h e r e l a t i v e p a u c i t y of s u c h
s t a t u t e s may i m p l y t h a t t h i s t e c h n i q u e p r e s e n t s d i f f i c u l t i e s f o r
Congress.

I t makes heavy demands on c o n g r e s s i o n a l r e s o u r c e s ,

r e q u i r e s r e v i e w and a p p r o v a l by t h e e n t i r e C o n g r e s s , and m u s t De
s i g n e d by t h e P r e s i d e n t ( o r h i s v e t o o v e r r i d d e n ) .

A l s o , Members

may h a v e t o c l a r i f y "vague s t a t u t e s " i n a r e a s w h e r e t h e r e may be
a " l a c k of s t a t u t o r y d i r e c t i o n , " w h e r e Congressmen " a r e f a c e d w i t h
t h e c l a s h of p o w e r f u l i n d u s t r y f o r c e s , " 11 and w h e r e l e s s a r d u o u s
a p p r o a c h e s may be a v a i l a b l e t o a c c o m p l i s h t h e same e n d .
I t s n o u l d be e m p h a s i z e d t h a t s t a t u t o r y o v e r r i d e s o f F e d e r a l

a g e n c y r u l e s a r e more p o w e r f u l c o n g r e s s i o n a l i n s t r u m e n t s o f c o n t r o l
t n a n l e g i s l a t i v e v e t o e s of t h e same:
- - s t a t u t o r y o v e r r i d e s may o c c u r e v e n t h o u g h a
s p e c i f i c r u l e n a s been " a p p r o v e d 1 ' by a f a i l u r e
l e g i s l a t i v e l y t o veto it e a r l i e r ;
- - s t a t u t o r y o v e r r i d e s t e r m i n a t e agency r u l e s
i m m e d i a t e l y and p r e c l u d e s i m i l a r f u t u r e e n d e a v o r s ,
w h e r e a s l e g i s l a t i v e v e t o e s , which d i s a p p r o v e o r
f a i l t o a p p r o v e r u l e s i n t h e p r e s e n t , do n o t
n e c e s s a r i l y p r e v e n t l a t e r p r o m u l g a t i o n of t h e
same t y p e of r u l e ;

11 S e n a t e S t u d y on F e d e r a l R e g u l a t i o n , p. 5 0 .
-

- - s t a t u t o r y o v e r r i d e s may n u l l i f y b o t h proposed and
f i n a l r u l e s , including those already administered,
w h i l e l e g i s l a t i v e v e t o e s a p p l y o n l y t o proposed
r u l e s , a l t h o u g h such v e t o e s may r e q u i r e
r e c o n s i d e r a t i o n o f e x i s t i n g r u l e s ; and
- - s t a t u t o r y o v e r r i d e s impose a d i r e c t i v e o f t h e
e n t i r e C o n g r e s s , u n l i k e t h e l e g i s l a t i v e v e t o which
may r e f l e c t t h e v i e w p o i n t o f o n l y a s i n g l e committee
o r one Chamber and which may simply b e a f a i l u r e t o
approve an agency r u l e w i t h i n a narrowly-bounded
time frame.
The p o t e n c y o f s t a t u t e s i s such t h a t even t h e t h r e a t o f enactment
may be s u f f i c i e n t t o modify a d m i n i s t r a t i v e r u l e s and t h e i r enforcement.
I n t h i s c a s e , t h e S e n a t e S t u d y on F e d e r a l R e g u l a t i o n d e t e r m i n e d t h a t :
I t i s a r a r e and s h o r t - t e n u r e d a d m i n i s t r a t o r
who w i l l d e f y a c l e a r c o n g r e s s i o n a l d i r e c t i v e
c o n t a i n e d i n a p u b l i c law.
Recognizing t h i s ,
committees sometimes go t h r o u g h t h e m o t i o n s o f marking
up a b i l l b e f o r e a n agency w i l l r e s p o n d t o
c o n g r e s s i o n a l prodding.
I n a d i s p u t e o v e r agency p o l i c y one committee
r e c e n t l y h e l d h e a r i n g s and a mark-up on a proposed
amendment t o t h e a g e n c y ' s e n a b l i n g a c t . The
cormnittee t h e n r e p o r t e d t h e b i l l t o t h e f l o o r o f
i t s House, A t t h a t p o i n t , t h e agency dropped i t s
opposition t o t h e committee's p o s i t i o n f o r f e a r
o f a n e m b a r r a s s i n g d e f e a t . 1/

-

During t h e 1973-1978 p e r i o d , Congress used s t a t u t e s t o o v e r t u r n
o r preempt F e d e r a l agency r u l e s on r e l a t i v e l y few o c c a s i o n s .

S i x examples

are:
(1)

L i t t l e C i g a r Act o f 1973 (P.L.

93-209;

87 S t a t . 352).

Congress p r o h i b i t e d c i g a r e t t e a d v e r t i s i n g on t e l e v i s i o n w i t h passage
o f t h e P u b l i c H e a l t h C i g a r e t t e Smoking Act o f 1969, which amended
t h e F e d e r a l C i g a r e t t e L a b e l i n g and A d v e r t i s i n g Act o f 1965 ( 1 5 U.S.C.

-1/ I b i d . , p. 51.

1331-1340).

These actions preempted the field from regulatory

agency jurisdiction.
Subsequently, the Internal Revenue Service ( I R S ) determined
that "little cigars" could not be classified as cigarettes;
therefore, it was not illegal to advertise them on television, a

1 However,
technique several tobacco companies adopted in 1973. 1

-

"the overriding public interest and the immediacy of the problem" 2/
generated by such advertising, according to the report of Senate
Commerce Cormnittee, engendered new legislation, P.L. 93-209, which
made it "unlawful to advertise cigarettes and little cigars on any
medium of electronic communication subject to the jurisdiction of
the Federal Communications omm mission ." (Emphasis added. )

By this

statute, Congress extended its preemption to another commodity that
would otherwise have been subject to FCC jurisdiction and neutralized
the IRS determination, as it applied to "little cigar" advertising
on television and radio.
(2)

Lead Based Paint Poisoning Prevention Act Amendments of 1973

(P.L. 93-151; 87 Stat. 565, 567).

P.L. 93-151 amended the statutory

definition of the term "lead based paint" and in so doing imposed new
statutory regulations regarding the content of lead in interior

1/ U.S. Congress. Senate. Committee on Commerce. Little
~ i ~ a r - ~ of
c t 1973; Report to Accompany S. 1165. washington, U.S.
Govt. Print. Off., 1973. (93d Congress, 1st session. Senate.
Report no. 93-103).
p. 3-4.

-21

Ibid., p. 5.

residential paints.

The pre-existing regulations, promulgated by

the Food and Drug Administration (FDA), were, in effect, overriden
by the Act.

FDA had considered lowering the required level but cited

the need for further study before issuing a rule that would establish

-

a more restrictive level. 11

P.L. 93-151, however, mandated a lower

maximum lead content level, effective by the end of calendar year
1974, unless the Chairman of the Consumer Product Safety Commission

-

(CPSC), not FDA, determined a higher level was safe. 21

That

determination, however, would have to be based on statutorilymandated studies.
Although the 1973 amendments permitted some administrative
discretion over future determinations and allowed the FDA-designated
level to remain in the interim, the statutory language superseded
FDA authority and imposed new administrative requirements regarding
any deviation from the forthcoming legislatively-established lead
content levels.
(3)

Motor Vehicle and Schoolbus Safety Amendments of 1974

(P.L. 93-492; 88 Stat. 1470, 1481-1483).

These amendments included

a provision that, in effect, overturned the regulation governing

11 U.S. Congress. Senate. Committee on Labor and Public
~e1faTe. Lead Based Paint Poisoning Prevention Amendments ; Report
to Accompany S. 607. Washington, U.S. Govt. Print. Off., 1973.
(93d Congress, 1st session. Senate. Report no. 93-130). p. 4-5.

21 The original bill, S. 607, in the 93d Congress had allowed
that authority to remain with FDA in the Department of Health,
Education and Welfare. Ibid.

safety belt interlock systems.

The Department of Transportation

(DOT) had issued a regulation requiring that all 1974 model year
cars have systems that prevented the automobile's engine from being
started unless the safety belt was secured.

Section 109 of P.L. 93-492

required that the Secretary of DOT amend the motor vehicle safety
standard (49 CFR 571.208) according to new requirements enumerated
in the remainder of the section.

The section precluded any future

regulatory requirement for a safety belt interlock system or for
a continuous buzzer system and added a legislative veto provision
over any further occupant restraint system standards promulgated by
the Secretary.

(4) Highway Safety Act of 1976 (P.L. 94-280; 90 Stat. 425,
454).

Title I1 of P.L. 94-280 authorized funds for certain programs

administered by the National Highway Traffic Safety Administration
(NHTSA).

Congress, responding to a volume of compliants from States,

modified existing safety standards imposed on the States and overturned
a specific standard stipulating that States require motorcyclists

-

to wear safety helmets. 1/

Section 208 of P.L. 94-280 prohibited

the Secretary of Transportation from requiring that a State adopt or

1/ U.S. Congress. House. Committee on Public Works and
~ransFortation. Federal-Aid Highway Act of 1975; Report to Accompany
H.R. 8235. Washington, U.S. Govt. Print. Off., 1975. (94th Congress,
1st session. House. Report no. 94-716). The Senate bill, S. 2711,
as reported by the Senate Public Works Committee, did not contain
such a provision, which was added by amendment on the floor of the
Chamber following extensive debate. Congressional Record (daily ed.),
v. 121, Dec. 12, 1975: S21935-S21941.

e n f o r c e a law, r u l e , o r r e g u l a t i o n r e q u i r i n g m o t o r c y c l e o p e r a t o r s
o r p a s s e n g e r s 18 y e a r s o f age o r o l d e r t o wear a s a f e t y helmet
when o p e r a t i n g o r r i d i n g on a motorcycle.

(5)
(P.L.

H e a l t h Research and H e a l t h S e r v i c e s Amendments of 1976

94-278;

90 S t a t . 401, 411).

The Food and Drug A d m i n i s t r a t i o n

(FDA) of t h e Department o f H e a l t h , Education and Welfare (HEW) had
i s s u e d r e g u l a t i o n s designed t o p r o t e c t consumers a g a i n s t v i t a m i n and
m i n e r a l p r o d u c t s FDA determined t o be e i t h e r u s e l e s s o r harmful i f
i n g e s t e d i n l a r g e d o s e s o r over an extended period of time.

A final

FDA r e g u l a t i o n , p u b l i s h e d on Aug. 2, 1973, t o become e f f e c t i v e on
J a n . 1, 1975, but s t a y e d by t h e A d m i n i s t r a t i o n , proposed t h a t most
v i t a m i n s and m i n e r a l s with a potency of 150% o r more o f t h e i r
recommended d a i l y allowance (RDA) be c l a s s i f i e d a s drugs.

Vitamins

A and D were t o be c l a s s i f i e d a s d r u g s a t 100% of t h e i r RDA.
T h i s c o n t r o v e r s i a l r u l e , which had a n t e c e d a n t s d a t i n g t o t h e
mid-1960s,

was c o n s i d e r e d an i n f r i n g e m e n t on t h e consumers1 "freedom

o f c h o i c e , " a c c o r d i n g t o c o n g r e s s i o n a l opponents.
s e c t i o n 501(b) o f P.L.

L/ As a r e s u l t ,

94-278 countered t h e r e g u l a t i o n s by d i r e c t i n g

t h e S e c r e t a r y of HEW t o "amend any r e g u l a t i o n promulgated under t h e
F e d e r a l Food, Drug, and Cosmetic Act which i s i n c o n s i s t e n t with"
new r e s t r i c t i o n s on h i s a u t h o r i t y .

Those r e s t r i c t i o n s b a r r e d

11 Rogers, Paul C. Conference Report on H.R. 7988, Health Research
and ~ T a l t hS e r v i c e s Amendments of 1976. Remarks i n House. Congressional
Record ( d a i l y e d . ) , v . 122, A p r i l 12, 1976: H3244-H3245.

CRS- 11

regulation of the composition or maximum potency of vitamins,
minerals, or combinations thereof, unless they were of a specified
type (e.g., toxic, habit-forming, administered by a doctor) or
unless they were intended for use by a specified clientele (e.g.,
by individuals in the treatment of specific diseases or disorders,
by children, by pregnant women).

(6) Saccharin Study and Labeling Act (P.L. 95-203; 91 Stat.
1452-1453).

This Act included several provisions affecting proposed

Food and Drug Administration (FDA)/Health, Education and Welfare (HEW)
regulations regarding the distribution of saccharin or any product
containing it.

One provision, discussed in the next section of this

report, affected the authority of the Secretary of HEW to issue
regulations in the area.

A second provision, contained in section 4(a)(l),

stipulated

express language to be used on labels of saccharin products, thereby
preempting a possible FDA/HEW rule that might have required more
cautionary language.

In addition, Section 4 precluded any such label

from being construed as restricting or prohibiting the sale or
distribution of saccharin products. The secretary of HEW was granted
authority to review and revise or remove this label requirement only
on the basis of new information, that is, "if the Secretary determines
such action is necessary to reflect the current state of knowledge
concerning saccharin." That restriction on the Secretary's discretion
prevented sole reliance on then-existing data, which had encouraged
the proposed saccharin regulations initially.

B.

STATUTORY MODIFICATION OF AGENCY JURISDICTION
A second major statutory technique for Congress to limit the

impact or effect the overturn of existing or proposed rules is to alter
the jurisdiction of the issuing Federal agency:
--by granting exemptions to the rulemaking authority
of the agency head;
--by removing express areas from the regulatory authority
of the agency head;
--by establishing moratoriums on certain rulemaking;
--by transferring jurisdiction from one agency to another
or from the Federal agency to State authorities;
--by providing for waivers for regulated categories; and
--by deregulating an area.
Such statutory instruments, occasionally used in tandem with direct
overrides or congressional preemption of specific rules, usually have
a broader impact than the more focused revocation or preemption.

It

is evident from floor debates and committee reports accompanying statutory
changes of jurisdiction that, at least in notable instances, the incentive
for modifying agency jurisdiction was to repeal or mitigate the impact
of a series of interrelated rules or a specific regulation. By removing
jurisdiction from an agency, such a statute has the effect of annulling
rules and regulations applicable to that area.
A well-known illustration of jurisdictional modification occurred
with the 1959 amendment of Section 315(a) of the Communications Act-the requirement that broadcasters provide equal broadcasting opportunities
to candidates for public office--administered by the Federal Communications

Commission (FCC).

Because of FCC's literal interpretation of Sec.

315(a), Congress explicitly exempted four kinds of news programs
that are under the control of the broadcaster (rather than the
candidate) and, thus, precluded FCC "equal time" regulation in those
11
areas. Recent examples include the following statutory provisions:
(1)

Lead Based Paint Poisoning Prevention Act Amendments of 1973

(P.L. 93-151; 87 Stat. 565, 567).

As described in the previous

section, P.L. 93-151 included a provision establishing new standards
regarding the acceptable level of lead in interior residential paint.
In addition, section 6 of the 1973 Amendments realigned jurisdiction
for promulgating future regulations over lead levels between a
congressionally mandated minimum and maximum.

The authority was

transferred from the Food and Drug Administration/HEW, which had
considered but delayed issuing new regulations, to the Consumer
Product Safety Commission (CPSC).

Along with the transfer of

authority, Congress established guidelines, in section 5, for studies
to be conducted prior to CPSC issuance of regulations promulgating
any new levels that exceeded the lower level.
(2)

Interstate Commerce Act--Exemption (P.L. 93-201; 8? Stat. 838).

This act of Dec. 27, 1973, amended the Interstate Commerce Act
(49 U.S.C.

903(b)),

exempting "the transportation by a water carrier

11 P.L. 86-274; 73 Stat. 557. For a brief review of the FCC
interpretation of Sect ion 315(a) and the subsequent congressional
action, see: Schmidt, Benno C., Jr. Freedom of the Press vs.
Public Access. New York, Praeger, 1976, p. 143-145.

of commodities in bulk . . . which are loaded and carried without
wrappers or containers and received and delivered by carrier without
transportation mark or count." The effect of such an amendment was
"to remove outmoded restrictions upon the application and scope of
the qualified exemption from regulation contained in section 303(b)
of the Interstate Commerce Act." 11

The Senate Commerce Committee

report on the proposed legislation noted that statutory action was
required to overturn "an interpretation by the Interstate Commerce
Commission of the obsolete and restrictive wording," 21 an
interpretation, incidentally, that had not been implemented, awaiting
"completion of congressional consideration of the problem." 31
P.L. 93-201, thus, terminated possible implementation of this pending
rule and also made permanent certain improvements in the language
of the exemption from ICC economic regulation contained in P .L. 91-590,
a statute which was scheduled to expire on December 28, 1973.
(3)

To Authorize and Request the President to Call a White

House Conference on Library and Information Services Not Later Than
1978, and for Other Purposes (P.L. 93-568; 88 Stat. 1855, 1862).

This

statute contained an amendment that exempted particular organizations--

1/ U.S. Congress. Senate. Committee on Commerce. Water
~arri<r Barge Mixing Kule Legislation of 1973; Report to Accompany
S. 2267. Washington, U .S. Govt. Print. Off., 1973. (93d Congress,
1st session. Senate. Report no. 93-513). p. 1.
21
-

Ibid.

31
-

Ibid., p. 3.

social fraternities and sororities at universities and Girl Scouts
and Boy Scouts, among others--from regulations promulgated by the
Secretary of Health, Education and Welfare under title IX of tne
Education Amendments of 1972.
That title prohibited discrimination on the'basis of sex in
any educational program or activity receiving Federal funds.

The

P.L. 93-568 exemptions were prompted by title IX regulations that
would otherwise have been applicable to "a number of organizations
which have no legitimate bearing on the original intent of title Ix,"
according to Senator Bayh, the amendment's sponsor and principal

-

author of title Ix. I/

(4) Kailroad Revitalization and Regulatory Reform Act of 1976
(P.L.

94-210; 9 0 Stat. 31, 34-35, 42, 124).

This statute included

several provisions altering Federal rulemaking jurisdiction and
represented one of the broadest efforts in deregulation, a primary
purpose of which was "to provide for an extensive overhaul
of railroad rate regulation by the Interstate Commerce Commission"

11 Bayn, Birch. dhite House Conference on Library and
~nforzationServices in 1978. Remarks in Senate. Congressional Record,
v. 120, Dec. 16, 1974: 39992. Added as a nongermane amendment to
S.J. kes. 40, the exemption provision was described by Senator Bayh
as "a rather complicated unanimous-consent agreement," since the
Chamber had already considered and approved S.J. Res. 40 three days
before. Ibid., p. 39991.

.

21 U .S
Congress. Committee of Conference. Railroad
~evit-alizationand degulatory Reform Act ; Report to Accompany
S. 2718. qasnington, U.S. Govt. Print. Off., 1976. (94th Congress,
2d session. Senate. Report no. 94-595). p. 134.

(ICC).

-21 Those deregulation provisions, incorporated in title I1

of P.L. 94-210, were intended to "eliminate needless and harmful
regulatory constraints on railroads, and

. . . prescribe ratemaking

practices which will encourage effective competition and protect

-

consumers.If 1/
Section 202 established new standards for determining the
justness and reasonableness of rates chaged by common carriers by
railroad, thereby affecting existing determinations based on formulas
established by the ICC.

The section also adopted language clarifying

the meaning of the term "variable cost" and its determination.

In

addition, this section stipulated that the ICC could not find a
rate unlawful on the ground that it exceeded a just and reasonable

maximum unless it found that the carrier had "market dominance"
over the service rendered under such a rate.

This provision statutorily

modified existing standards and rules under which a rate would have
been found unlawful.

Finally, under section 202, the Commission

would inaugurate procedures for the establishment of railroad rates
based on seasonal, regional, or peak period demand for rail services
and for separate rates for district rail services, again altering
existing rules which did not include such considerations.
Section 207 amended section 12 of the Interstate Commerce Act

(49 U.S.C.

12(1))

by adding certain possible exemptions.

The ICC

derived authority to grant exemptions to common carriers by

railroad subject to Part I of the Interstate Commerce Act, where
regulation was not necessary to effectuate the national transportation
policy in that Act, and where the Commission found that regulation
would serve little or no public purpose.

Any such exemption could

be evoked only after notice and opportunity for a hearing.

Although

the language is not mandatory, permitting ICC discretion in granting
exemptions in this regard, section 207 asserted a congressional
interest in extending exemptions from ICC authority to certain carriers, L/
thereby reducing tne effective impact of regulatory rules under the
national transportation policy provision.

The Senate Commerce

Committee report on the original bill, S. 2718, noted the rationale
and intent in conferring this exemption authority:

Tne Committee believes that an exemption power
in the Commission is very desirable, and the Commission
itself has recommended for several years that it be
given such power. The requirement of full proceedings
before exemption can be granted and before reimposition
of regulation, as well as the findings which must be
made, assure that the Commission will not act in such
a manner as to contravene its Congressional mandate to
regulate interstate commerce. At the same time, the
power to exempt from regulation in whole or in part
will enable the Commission to commit its limited
resources in areas where they are most needed, by
enabling it to deregulate those areas which have no
significant bearing on the overall regulatory scheme. 2/

-

-

1/ The exemption provision was limited to common carriers by
railroad, vis-a-vis other parties, subject to Part I of the
Interstate Commerce Act, "because of the jurisdictional objections
of tne Committee on Public Works and Transportation of the House
of Representatives." Ibid., p. 153.
2/
U.S. Congress. Senate. Committee on Coinmerce.
ail Services
Act o? 1975; Report to Accompany S. 2718. Washington, U.S. Govt.
Print. Off., 1975. (94th Congress, 1st session. Senate. Report no.
94-499). p. 53.

Section 705(e) of P.L. 94-210 eliminated Food and Drug
Administration (FDA) jurisdiction over intercity passenger trains
regarding regulation of dining car service and waste disposal from
railroad conveyances operated in rail passenger service.

The section,

amending section 306 of the Rail Passenger Service Act (45 U.S.C.

546),

was intended to curtail operating expenses and additional financial
costs that might accrue to the railroad industry in meeting FDA
regulations promulgated under the Public Health Service Act (42 U.S.C.

-

264). 1/
(5)

Health Research and Health Services Amendments of 1976

(P.L. 94-278; 90 Stat. 401, 410-413).

As noted in the previous

section, Title V of these 1976 Amendments to the Federal Food, Drug,
and Cosmetic Act (21 U.S.C.

349) required the Secretary of Health,

Education and Welfare (HEW) to amend any existing vitamin potency
regulation promulgated under that Act which was inconsistent with
new statutory restrictions on his authority.
Section 501(a) listed those restrictions:

the Secretary may not

establish maximum limits on the potency of any synthetic or natural
vitamin or mineral within a food to which this section applies; may
not classify any natural or synthetic vitamin or mineral (or combination
thereof) as a drug solely because it exceeds the level of potency

1/ This provision was shortly thereafter amended by sec. 105
of P.T. 94-555 (90 Stat. 2615), in effect restoring FDA authority
to regulate dining car service but expressly prohibiting similar
authority with regard to waste disposal. This statute is discussed
below.

CRS- 19
which he determines nutritionally rational or useful; and may not
limit the combination or number of any synthetic or natural vitamin,
mineral or other ingredient of food within a food to which this
section applies.

Section 501(a) provided exceptions to the restrictions

on the Secretary's authority for classes of users (e.g., children,
pregnant or lactating women) and for certain types of vitamin and
mineral substances (e. g. , toxic, habit-forming, carcinogenic).
This amendment curtailing the regulatory jurisdiction of FDA
had a lengthy heritage of congressional concern about FDA regulation
of dietary supplement labeling and the content of special dietary

-

food products. 1/ The resulting restrictions were perceived by one
Member of Congress as follows:
For 20 long years the FDA has been overzealously
trying to protect Americans from a threat that really
does not exist
attempting to treat all vitamins
and minerals, when they are of a potency or a
combination they do not like, as drugs...What the
Congress has done is tell the FDA that they were
throwing too wide a net. They were going too far
in trying to protect citizens from themselves.
They were interfering with legitimate freedom
of choice. 2/

...

-

(6 )

Consumer Product Safety Commission Improvements Act of 1976

(P.L. 94-284; 90 Stat. 503, 504).

Section 3 of this Act placed

limitations on the jurisdiction of the Consumer Product Safety

1/ Rogers, Paul C. Conference Report on H.R. 7988. Remarks
in ~ouse. Congressional Record (daily ed.), v. 122, April 12, 1976:
H3245.

-2/

Goldwater, Barry M. Jr.

Ibid., p. H3246.

Commission (CPSC), specifically prescribing CPSC regulatory
jurisdiction of pesticide safety labeling; tobacco and tobacco
products; and sale and manufacture of firearms and ammunition or
its components, such as gun powder, under certain acts.

The section

prohibited CPSC regulation of tobacco products or.ammunition as a
"hazardous substance" under the Federal Hazardous Substances Act
(15 U.S.C.

1261 et seq.), and regulation of pesticides under the

Poison Prevention Packaging Act of 1970 (15 U.S.C.

1471), i.e.,

pesticide-regulated packaging standards for child protection.

The genesis of the restrictions on CPSC regulatory jurisdiction
came indirectly from the Commission itself, which had denied
petitions from private groups that it had authority to regulate

-

handgun ammunition or tobacco products as hazardous substances. 1/
The Commissions' denials were appealed in Federal court, which
subsequently concurred with the petitioners--that CPSC did in
fact have jurisdiction--and ordered the Commission to consider the

-

petitions on their merits. 2/

Section 3 of P.L. 94-284 was

necessary to preclude potential CPSC regulations that might have

1/ U.S. Congress. Senate. Committee on Commerce. Consumer
product Safety Commission Improvements Act of 1975; Report to
Accompany S. 644. Washington, U.S. Govt. Print. Off., 1975 (94th
Congress, 1st session. Senate. Report no. 94-251).
p. 5-6.

-2/

Ibid.

conflicted with the intent of Congress in the Federal Hazardous
Substances Act, as the petitioners wanted stronger Federal control

-

of such products than existed. 11
(7)

Coastal Zone Management Act Amendments of 1976 (P.L. 94-

370; 90 Stat. 1013, 1032).

These amendments included a provision

prohibiting certain regulations by the Secretary of Health,
Education and Welfare (HEW) for a specified time period.

Section

16(b) ordered that the Secretary "shall not promulgate final
regulations concerning the national shellfish safety program before
June 30, 1977" and shall consult with the Secretary of Commerce
prior to issuance of any such future regulations.
The mandated delay in promulgating such final regulations
was designed to ensure adequate time for the Commerce Department
to complete a special study of shellfish and a comprehensive review
of all aspects of the molluscan shellfish industry, expected to be

-

completed by April 30, 1977. 2 /

The moratorium held in abeyance

HEW regulations, developed by its Food and Drug Administration, that
were perceived as injurious to the shellfish industry:

-11

Ibid.

21 U.S. Congress. Committee on Conference. Coastal Zone
~ a n a g m e n tAct Amendments of 1976; Report to Accompany S. 586.
Washington, U.S. Govt. Print. Off., 1976. (94th Congress, 2d
session. House. Report no. 94-1298). p. 39.

Proposed Federal regulations which were
to be promulgated by the FDA would have
driven the many shellfish processors and
watermen into bankruptcy. It has been
estimated by the President's Council on
Wage and Price Stability that had these FDA
regulations gone into effect, they would
have cost the shellfish industry almost
one fourth of their annual product value.
This not only portended increased prices
for consumers of oysters and clams, but
it would have meant that the many families
dependent on the shellfish industry as a
way of life and a means of support would
henceforth be included in our national
unemployment figures. 11
(8)

Energy Conservation and Production Act (P.L. 94-385;

90 Stat. 1125, 1129).

The Energy Conservation and Production Act

included a provision that, in effect, curtailed the regulatory
jurisdiction of the Federal Energy Administration (FEA) by limiting
the enforcement authority of the AdministratorlFEA over certain
rules.

Sec. 106 of the act amended sec. 7 of the Federal Energy

Administration Act of 1974 by adding that:
The Administrator or his delegate may not exercise
discretion to maintain a civil action...or issue
a remedial order against any person whose sole
petroleum industry operation relates to the
marketing of petroleum products, for any violation
of any rule or regulation, if (1) such civil action
or order is based upon a retroactive application or
interpretation of such rule or regulation, and ( 2 )
such person relied in good faith upon rules,
regulations, or rules interpreting such rules and
regulations, in effect on the date of the violation.

1/ Bauman, Robert E. Statement on Conference Report on S. 586.
~emarxsin House. Congressional Record (daily ed.), v. 122, June 30,
1976: H7077.

In other words, Sec. 106 prevented retroactive enforcement
of rules and regulations against the small independent operators
in the petroleum industry, with the "intent

. . . to provide relief

to businesses which have been subjected to seemingly endless changes
in rules and regulations by FEA and to penalties arising from those
changes made after the original effective date of such rules and
regulations."

Many small firms, the conference committee determined,

had been "confronted by subsequent amendments to those [existing]
rules applied retroactively
and unjust penalties

. . . [causing] an unnecessary burden

. . ." -21 Similar prohibitions were not applied

to "marketers with the means to challenge all enforcement actions
based upon arguably ambiguous rules, regulations or rulings or upon
clarifying amendinents thereto." 2/

Nor did this provision prohibit

FEA from "perfecting its rules and regulationst'in the future;
it only removed enforcement authority over certain amended rules
applied retroactively to a particular type of petroleum marketer.
(9) Education Amendments of 1976 ( P . L .
2234).

94-482; 90 Stat. 2081,

The Education Amendments of 1976 incorporated a provision

that exempted specified programs and activities from regulations

11 U.S. Congress. Committee of Conference. Energy Conservation
and production Act; Conference Report to Accompany H.R. 12169.
Washington, U.S. Govt. Print. Off,, 1976. (94th Congress, 2d session.
House. Report no. 94-1392). p. 62.

-21
-3/

Ibid.
Ibid.

promulgated under title IX of the Education Amendments of 1971.
Section 412 of P.L. 94-482 provided the following exemptions to
Health, Education and Welfare rules and regulations regarding
sex discrimination in educational programs or activities receiving
Federal funds :
--Boys State and Nation and Girls State and Nation conference
activities;
--father-son or mother-daughter activities, with the
provision that if such activities are provided for
students of one sex, opportunities for reasonably
comparable activities are to be provided for the
other; and
--beauty-talent contestant scholarships.
The exemptions were added to the basic bill, H.R. 12851 in
the 94th Congress, by floor amendments:

that affecting talent-

beauty contestant scholarships by the House and those affecting
American Legion Boys and Girls State and father-son or motherdaughter events by the Senate.

The House amendment, agreed to

-

by voice vote, 1/ was designed to restore scholarships terminated
by HEW regulations developed under title IX, what the amendment's
sponsor regarded as an "unintended result

. . .[and] most unfortunate

that title IX has resulted in a termination of these educational

-

programs .I1 2/
The Senate provisions regarding American Legion Boys/Girls
State programs and mother-daughter or father-son events followed

-1/ Congressional Record (daily ed.), v. 122, May 12, 1976: H4320.
-2/ Edwards, Jack. Statement. Ibid., p. H4329.

HEW rulings, based on title IX regulations, that banned such
activities.

Although the rulings were subsequently suspended, the

decision to do so was "administrative and could change again.

In

fact, HEW officials, in a meeting with the American Legion, stated
that legislation would be the only permanent solution to the problem,"

-

according to the amendments' sponsor, Senator Fannin. 1/

The

amendments to title IX did so, by removing such areas from HEW
jurisdiction.
(10)

Rail Transportation Improvement Act (P.L. 94-555; 90 Stat.

2613, 2616, 2621, 2628).

The Rail Transportation Improvement Act included

three sections that restricted Interstate Commerce Commission (ICC)
jurisdiction:
(1) section 108 prohibited the ICC from issuing
regulations requiring Amtrak "or any railroad
providing intercity rail passenger service to
provide food service other than during customary
dining hours";
(2) section 206 exempted local commuter
service provided by rail but not by bus, if its
fares are "subject to approval or disapproval
by a Governor of any State in which it provides
services"; and
(3) section 218 explicitly precluded ICC authority
over "(a) abandonment or discontinuance with respect
to spur, industrial team, switching, or side tracks
if such are located entirely within one State,
or (b) any street, suburban, or interurban electric
railway which is not operated as part of a general
system of rail transportation."

I/ Fannin, Paul J.

An Amendment Relating to Sex Discrimination.

ema arcs in Senate. Congressional Record (daily ed.), v. 122, Aug. 26,
1976: S14643.

Section 108, as part of Title I, was designed "to reduce the
cost of providing rail passenger service." 1/

The ICC-related

provisions in Title 11, which affected ConRail, were designed to
limit unintended ICC regulatory authority and encourage expanded
State authority.

In the latter case, Section 206 granted an exemption

to local bodies providing mass transportation services by rail if
their fares were subject to approval by a State governor.

This

provision, in effect, transferred certain ICC jurisdiction to
States which had such gubernatorial authority.
Section 218 amended section la(1) of the Interstate Commerce
Act (49 U.S.C.

la(l)),

a section which had been only recently

added by the Railroad Revitalization and Regulatory Reform Act of
1976 (P.L. 94-210).

That "new section, however, inadvertently [did]

not expressly exempt 'spur lines' from its provisions." 2/

The

House Interstate and Foreign Commerce Committee report on the Rail
Transportation Improvement Act offered an explanat ion why ICC
rulemaking authority should be excluded in this regard:

1/ U.S. Congress. Senate. Committee on Commerce. Rail
~mendzentsof 1976; Report to Accompany S. 3131. Washington, U.S.
1976. (94th Congress, 2d session. Senate.
Govt. Print. Off
Report no. 94-851). p. 1.

.,

-

21 U.S.
Congress. House. Committee on Interstate and Foreign
Commerce. Rail Amendments of 1976; Report to Accompany H.R. 14932.
Washington, U.S. Govt. Print. Off., 1976. (94th Congress, 2d session.
House. Report no. 94-1479). p. 22.

The Comission's abandonment procedures
have never applied to such track and it is not
Congress' intent (nor does the Commission desire)
that such track should be subject to its abandonment
procedures. These tracks are not operated as a
part of a general system of rail transportation
and thus are purely local and should be subject to
local jurisdiction as has been tne case historically. 1/
(11)

Clean Air Act Amendments of 1977 (P.L. 95-95; 91 Stat.

685, 695-697).

Section 108 of the Amendments to the Clean Air Act

restricted the authority of the Administrator of the Environmental
Protection Agency (EPA) to require indirect source review programs as
part of State implementation plans, which otherwise must be approved
by the Administrator.

In defending this provision before the House,

one of the conferees on the bill, Rep. Broyhill, alluded to EPA's
previous experience:
One of the more troublesome activities
in which EPA had been involved was the
attempted regulation of indirect sources-such as shopping centers--which attract mobile
sources of pollution. I am pleased to report
that the conference report, following the
general intention of the House bill, prohibited
the Administrator of EPA from requiring
indirect source review programs. States are
given authority to adopt, suspend, or revoke
such programs. 11

21 Broyhill, James T. Conference Report on H.R. 6161, Clean Air
Act Gendments of 1977. Remarks in House. Congressional Record
(daily ed.), v. 123, Aug. 4 , 1977: H8668. The exceptions to such
prohibition, which are eligible for EPA regulation, are major
federally funded public works projects, such as highways and airports,
and federally owned and operated indirect sources. Two years earlier,
Congress had adopted appropriations limitations preventing EPA from
administering or promulgating any program to regulate parking in
the FY 1976 appropriations, P .L. 94-116 (discussed below).

(12)

Saccharin Study and Labeling Act (P.L. 95-204; 91 Stat.

1451, 1452).

This Act statutorily preempted saccharin-product

labeling, as noted in the previous section dealing with statutory
overrides of (prospective) rules.
The Act, through section 3, also provided for an 18-month
moratorium on the banning of saccharin or saccharin products by
requiring that the Secretary of Health, Education and Welfare (HEW)
not take action "to prohibit or restrict the sale or distribution
of saccharin, any food permitted by

. . . [an FDA] interim food

additive regulation to contain saccharin, or any drug or cosmetic
containing saccharin."

The exception to this restriction was that

the Secretary may ban such products within the period only on the
basis of new information made available before the end of the period;
that determination could not be made solely on the basis of
information made available before enactment. -/

This qualification

on the secretary's discretion to ban saccharin products during
the 18-month moratorium prevented exclusive reliance on the
original studies that had determined carcinogenic effects of
saccharin.

11 U.S. Congress. Committee of Conference. Saccharin Study
and ~;belin~ Act; Conference Report to Accompany S. 1750.
Washington, U.S. Govt. Print. Off
1977. (95th Congress, 1st session.
House. Report no. 95-810). p. 9.

.,

Prompting the statutory moratorium was a proposed FDA rule,
announced April 14, 1977, banning saccharin in diet soft drinks and
foods as well as in cosmetics, such as lipstick, toothpaste, and
mouthwash, thereby terminating an estimated 90% of the saccharin
market.

FDA had reviewed saccharin tests by the Canadian government

which had discovered an increased incidence of bladder cancer in
laboratory test animals.

Regarding new testing required by P.L. 95-204,

during the moratorium, HEW was first to request that the National
Academy of Sciences conduct the necessary studies, the components of
which were detailed in section 2.

After specified intervals of time,

the Secretary was required to report the findings and any
recommendations to the appropriate congressional committees. _1/
(13)

Clean Water Act of 1977 (P.L. 95-217; 91 Stat. 1566, 1583,

1599-1606).

This statute amended the Federal Water Pollution Control

Act Amendments of 1972 (P.L.

92-500) and included a number of

different types of alterations of rule-making jurisdiction.

These

included granting waivers for regulated items, transfering authority
from Federal to State jurisdiction, and providing exempt ions for
certain activities.
One of the changes involved amendments to section 404 of the
Federal Water Pollution Control Act, the section which granted
Federal regulatory jurisdiction over water pollution from point
sources through the issuance of permits by the Army Corps of Engineers.

-1/

Ibid., p. 8-9.

Sec. 67 o f P.L.

95-217,

a f f e c t i n g p e r m i t s f o r dredged o r f i l l

m a t e r i a l , r e d u c e d such F e d e r a l j u r i s d i c t i o n by exempting t h e
"discharge of dredged o r f i l l m a t e r i a l

. . . from normal f a r m i n g ,

s i l v i c u l t u r e , and r a n c h i n g a c t i v i t i e s " from t h e r e q u i r e m e n t o f
s p e c i f i c permits.

F u r t h e r m o r e , c e r t a i n " g r a y a r e a s " were removed

from F e d e r a l j u r i s d i c t i o n i f a S t a t e had an approved program ( i . e . ,
u n d e r s e c t i o n 208 o f t h e F e d e r a l Water P o l l u t i o n C o n t r o l A c t ) :
S i m i l a r l y , no permits a r e r e q u i r e d f o r o t h e r
such "gray area" p r a c t i c e s involving those
a g r i c u l t u r e , m i n i n g and c o n s t r u c t i o n a c t i v i t i e s
l i s t e d i n s e c t i o n 2 0 8 ( b ) ( 2 ) (F) t h r o u g h (I) t h a t
a r e more p r o p e r l y c o n t r o l l e d by S t a t e and l o c a l
a g e n c i e s u n d e r s e c t i o n 2 0 8 ( b ) ( 4 ) and f o r which
t h e r e a r e approved b e s t management p r a c t i c e programs.
F o r example, s e c t i o n 2 0 8 ( b ) ( 4 ) r e g u l a t o r y programs
are responsible for controlling pollution that
may r e s u l t from s h e e t f l o w a c r o s s a s i t e p r e p a r e d
f o r c o n s t r u c t i o n o r from t h e placement o f p i l i n g s
i n w a t e r t o s u p p o r t s t r u c t u r e s s u c h a s highways,
r a i l r o a d t r a c k s , and d o c k i n g f a c i l i t i e s . Under
t h e committee amendment, no p e r m i t s a r e r e q u i r e d
f o r such a c t i v i t i e s when r e g u l a t e d under s e c t i o n 208. 11
S e c t i o n 67 a l s o e s t a b l i s h e d "a p r o c e s s t o a l l o w t h e Governor
o f any S t a t e t o a d m i n i s t e r an i n d i v i d u a l and g e n e r a l p e r m i t program
f o r t h e d i s c h a r g e o f dredged o r f i l l m a t e r i a l i n t o phase 2 o r 3
w a t e r s a f t e r t h e a p p r o v a l o f a program by t h e A d m i n i s t r a t o r "

21

11 U.S. C o n g r e s s . S e n a t e . Committee on Environment and P u b l i c
C l e a n Water Act of 1977; Report t o Accompany S. 1953.
works.
w a s h i n g t o n , U.S. Govt P r i n t . O f f . , 1977. ( 9 5 t h C o n g r e s s , 1 s t s e s s i o n .
S e n a t e . R e p o r t no. 95-370) p. 76.

.

21 U.S.
C o n g r e s s . Committee o f C o n f e r e n c e . Conference Report
t o ~ c F o m ~ aH.R.
n ~ 3199. Washington, U.S. Govt. P r i n t . O f f . , 1977.
p. 101.
( 9 5 t h C o n g r e s s , 1st s e s s i o n . House. Report no. 95-830).

of the Environmental Protection Agency (EPA)

. EPA retained oversight

of and could reject State programs; but the amendment allowed "States
to assume the primary responsibility for protecting those lakes, rivers,
streams, swamps, marshes, and other portions of the navigable waters
outside the corps program in the so-called phase 1 waters."

11

Section 67 of P.L. 95-217 added still another exemption to the
regulatory jurisdiction regarding permits for dredged or fill material,
resulting from Federal construction projects.

A new section exempted

Federal activities that discharge dredged or fill material from the
permit process when the Federal construction project has been
specifically authorized by Congress, if information on the effects
of such discharge is included in an environmental impact statement
and submitted to the Congress before the actual discharge and prior
to either the authorization or the appropriation of funds for such
construction.

This exemption for certain Federal construction

projects from the 404-permit requirement was "in recognition of the
Constitutional principal of separation of powers.

Where a project

has been specifically authorized by the Congress that authorization
should not thereafter be subject to nullification by an executive
agency." 21

--------------works.

11 U.S. Congress. Senate. Committee on Environment and Public
Clean Water Act of 1977, p. 75.

21 U.S. Congress. Committee of Conference.
3199, p. 104.
~ c c o m F a nH.R.
~

Conference Report to

In addition, P.L. 95-217 amended certain EPA regulatory activity
through the issuance of permits, i.e., under authority of section 402
of the Federal Water Control Act Amendments of 1972.

Section 33 of

P.L. 95-217 prevented the Administrator/EPA from requiring a permit
under his authority in section 402 "for discharges composed entirely
of return flows from irrigated agriculture."

Thereafter, such sources

of pollution would be included in areawide waste treatment management
under the responsibility of the States.

According to the Conference

Committee report on the Clean Water Act of 1977, "the purpose of
this [new] section is to assure that no permit can be required by

-

EPA for regulation of irrigation return flows." 1/
P.L.

95-217, through section 43, provided yet another transformat ion

of Federal regulatory jurisdiction by establishing procedures for
the ~dministrator/E~A
to grant a waiver for nonconventional pollutants ,
a new category vis-a-vis conventional and toxic pollutants, and a
"gray area

. . . about which there is the most to learn." -21 Described

as a "safety valve" by the proposed legislation's Senate floor manager,
Senator Muskie, the provision permitted that in the case of such nonconventional pollutants, an industry "has a chance under these amendments
to prove no adverse environmental effects relating to a particular

-1/

Ibid., p. 69.

21 Muskie, Edmund. Clean Water Act Amendments of 1977--Conference
~ e ~ o r t .Remarks in Senate. Congressional Record (daily ed.) ,
v. 123, Dec. 15, 1977: S19638.

pollutant, and after making a showing, escape regulation." 1
1 House
conferee Rep. Ray Roberts offered the following explanation for including
the provision:
Another major problem area was the law's [Federal
Water Pollution Control Act] strict requirement for
industry that would cost millions of dollars and
result only in a little more clean-up of our waters.
The conferees wrestled with this problem and
developed a fair and workable compromise. Strict
requirements are still in effect for damaging
pollutants, such as toxics. However, for certain
other [nonconventional] pollutants, industry may
21
get a waiver. By way of summary, P.L. 95-217 provided three distinct mechanisms-transferring authority from Federal to State authorities, providing
exemptions, and granting waivers--for modifying rulemaking authority,
changing specific rules and their implementation, and mitigating the
effect of others.
(14)
1705-1747).

Airline Deregulation Act of 1978 (P.L. 95-504; 92 Stat.
Approved on the final day of the 95th Congress, the

Airline Deregulation Act of 1978 contained a number of mechanisms
which would, in effect, overturn existing rules and regulations,
lessen their impact, prevent the promulgation of more rigid rules,
and remove rule-making authority.

The complex legislation, developed

over a four-year period, included five distinct techniques that

11 Ibid., p. S19637.
21 Roberts, Ray. Report on the Resolution Providing for
consixeration of Conference Report on H.R. 3199, Clean Water Act of
1977. Remarks in House. Congressional Record (daily ed.), v. 123,
Dec. 15, 1977: H12919.

affected the jurisdiction of the Civil Aeronautics Board (CAB):
--graduated or phased termination of CAB authority over
domestic air routes (Dec. 31, 1981) and over domestic
air fares, rates, mergers, and acquisitions
1, 1983),
along with abolition of the Board itself on Jan. 1,
1985, unless Congress overrides these "sunset" prov sions ;

an.

--eventual transfer of CAB authority to other Federal agencies,
including the determination of small carriage rates to the
U.S. Postal Service; the jurisdiction for mergers,
interlocking directorates, and antitrust actions re ating
to interstate and foreign air transportation to the Just ice
Department; the compensation for air transportation to
small communities to the Transportation Department; and
authority for foreign air transportation to Transportation
in consultation with the State Department;
--exemptions from CAB authority, including regulation of much
comuter aircraft, airline company acquisition by non-airline
companies, certain classes of services (as CAB determines),
and certain air carrier transportation involving the State
of Alaska;
-restrictions on CAB rulemaking with respect to charter airlines,
requiring the Board to impose rules on such airlines that were
no more rigid than those imposed on other classes and precluding
the Board from making charter rules and regulations any more
restrictive than on October 1, 1978, thus, in effect, "approving
all actions the Board has taken with respect to the liberalization
" 1/ ; and
of charters

...

--waiving CAB approval authority for an additional route for
each airline during 1979-1981.
(15)

92 Stat.

Endangered Species Act Amendments of 1978 (P.L. 95-632;
3751, 3752-3758).

Following a Supreme Court decision

preventing Tennessee Valley Authority operation of the Tellico Dam
because of endangerment to the snail darter fish, listed as an

1/ Cannon, Howard. Airline Deregulation Act of 1978--Conference
~ e ~ o r t .Remarks in Senate. Congressional Record (daily ed.), v. 124.
Oct. 14, 1978: S18799. See also Edward Kennedy, ibid., p. 518798,
on other CAB reform efforts prior to enactment of the deregulation bill.

e n d a n g e r e d s p e c i e s , C o n g r e s s approved amendments i n 1978,
e s t a b l i s h i n g new mechanisms f o r d e t e r m i n i n g e x e m p t i o n s t o t h e 1973
Endangered S p e c i e s Act.

The Amendments c r e a t e d a seven-member

i n t e r a g e n c y Endangered S p e c i e s Committee, composed o f t h e h e a d s o f :
t h e C o u n c i l o f Economic A d v i s o r s , E n v i r o n m e n t a l P r o t e c t i o n Agency,
N a t i o n a l Oceanic and Atmospheric A d m i n i s t r a t i o n , and t h e D e p a r t m e n t s
o f A g r i c u l t u r e , t h e Army, and t h e I n t e r i o r who c h a i r s t h e new Committee.
The s e v e n t h member would b e a P r e s i d e n t i a l a p p o i n t e e r e p r e s e n t i n g
t h e Governor o f t h e a f f e c t e d S t a t e .

The Committee makes f i n a l

d e t e r m i n a t i o n s based upon recommendations from a three-member
r e v i e w p a n e l which r e p o r t s on exemption a p p l i c a t i o n s t h a t may b e
s u b m i t t e d by t h e a f f e c t e d F e d e r a l agency, by t h e Governor o f t h e S t a t e
i n which an agency a c t i o n w i l l o c c u r , o r by a p e r m i t o r l i c e n s e e
applicant.

C.

LIMITATIONS I N AUTHORIZING AND APPROPRIATING STATUTES

S t a t u t o r y l i m i t a t i o n s and d i r e c t i v e s a f f e c t i n g s p e c i f i c F e d e r a l
r u l e s and r e g u l a t i o n s e x i s t i n b o t h a p p r o p r i a t i n g and a u t h o r i z i n g
l e g i s l a t i o n , a l t h o u g h t h e f o r m e r a r e t h e more common v e h i c l e s f o r
such f u n d i n g r e s t r a i n t s .

I n most i n s t a n c e s , t h e y p r o h i b i t e x p e n d i t u r e s

f o r s p e c i f i e d r e g u l a t o r y a c t i v i t y o r f o r enforcement o f a p a r t i c u l a r
rule.

I n t h a t f a s h i o n , t h e s e l i m i t a t i o n s p r e v e n t an a g e n c y from

p r o m u l g a t i n g o r implementing a r u l e a n d , t h u s , n u l l i f y t h e r u l e f o r
t h e d u r a t i o n of t h e a u t h o r i z a t i o n o r a p p r o p r i a t i o n p e r i o d .

The last phrase, however, suggests the major qualification
on such statutory techniques.

Their impact is restricted to a

specified time period; and unless reenacted in subsequent authorization
or appropriation statutes, their effect terminates. As a corollary,
these restraints applied to funding amounts lack permanency, with
the consequence that the offending rule would be enforced in the
future without continued congressional approval of the statutory
language.

Moreover, appropriation bills, as distinct from authorizations

in this case, cannot propose new or general legislation or amendments
to existing legislation, for the most part. 11

Therefore, provisions

in appropriation statutes can neither permanently override the statutory
authority on which a particular rule is based nor overturn a specific
rule in an absolute sense.

11 Senate Rule XVI reads in part: "The Committee on Appropriations
shall-not report an appropriation bill containing amendments proposing
new or general legislation ...No amendment which proposes general
legislation shall be received to any general appropriation bill ...I1
House Rule XXI reads similarly: "Nor shall any provision in
any such [appropriation] bill or amendment thereto changing existing
law be in order, except such as being germane to the subject matter
of the bill shall retrench expenditures...by reduction of the amounts
of money covered by the bill.. ." House Rule X X I is elaborated upon
in section 483 of the Rules of the House of Representatives: "Although
the rule forbids on any general appropriation bill a provision 'changing
existing law,' which is construed to mean legislation generally, the
~ouse's practice has established the principle that certain 'limitations'
may be admitted. It being established that the House under its rules
may decline to appropriate for a purpose authorized by law, so it
may by limitation prohibit the use of money for part of the purpose
while appropriating for the remainder.. . "
However, Louis Fisher has provided an overview of the intricacies
and nuances of appropriations bills that "dilute the force of this rule"
of Congress. U. S. Library of Congress. Congressional Research
Service. The Authorization-Appropriat ions Process : Formal Rules
and Informal Practices (by) Louis Fisher. (washington) Aug. 1,
1979, p. 31 and 29-39.

Finally, the potential effectiveness of authorization and
appropriation restraints is limited because some kinds of
budget expenditures are largely immune from either express
appropriation or authorization:

borrowing and contract authority

or "backdoor spending"; permanent authorizations or appropriations;
existence of off-budget agencies; trusts and special funds; certain
uncontrollable expenditures, such as those mandated by statutory
formulae; and carry-overs of unexpended funds. 11 Also, reprogramming
of funds 2 / permits certain administrative spending discretion once
programs are in effect.
In the case of major regulatory agencies, however, most budget
accounts are at least periodically appropriated. The Senate Study
on Federal Kegulation found that the fourteen major regulatory agencies
"are funded through 43 separate budget accounts, only four of which

31
are not subject to appropriaitons review." -

Consequently, the

11 A comprehensive review of these techniques has been prepared
by lien Schick. See: U .S. Congress. House Committee on the
Budget. Congressional Control of Expenditures. (Committee print)
Washington, U.S. Govt. Print. Off., 1977.

-21 See: Fisher, Louis. Presidential Spending Power. Princeton,
N.J., Princeton University Press, 1975.
-3/

Senate Study on Federal Regulation, p. 21.

potential for appropriations limitations is greater in the regulatory
field than in most other areas.

Yet, since nearly all Federal

agencies, not just major regulators, have authority to promulgate
rules, and because of the difficulties and limitations associated
with statutory authorization or appropriation spending controls,
that ~otent
ial may remain unevenly and infrequently ut lized

.

Nonetheless, the Senate Study on Federal Regulation ar ued the
significance of this statutory technique in controlling Federal
regulations :
Once enacted, these statutory controls are
completely straightforward. In fact, it could be
argued that appropriations oversight is effective
precisely because the statutory controls are so
direct, unambiguous, and virtually sel f-enforcing.
While agencies are able to bend the more ambiguous
language of authorizing legislation to their own
purposes, the dollar figures in appropriations bills
represent commands which cannot be bent or ignored
except at extreme peril to agency officials. 11
Some recent examples of appropriations or authorizations
limitations applied to specific rules include:
(1)

Appropriations for the Departments of Labor, and Health,

Education and Welfare and Related Agencies for FY 1974 (P.L. 93-194;
87 Stat. 7 4 6 , 7 6 3 ) .

This Act continued to apply the following

limitation to National Labor Relations Board (NLRB) appropriations:
No part of the appropriation could be used in connection with NLRB
activities concerning bargaining units composed of agricultural
laborers or to organize or assist in organizing agricultural laborers.

-11

Ibid., p. 31.

The p r o v i s i o n a l s o i n c l u d e d i n t h e d e f i n i t i o n o f a g r i c u l t u r a l l a b o r e r s ,
employees engaged i n t h e m a i n t e n a n c e and o p e r a t i o n o f c e r t a i n waterways
and r e s e r v o i r s , o p e r a t e d on a m u t u a l , n o n - p r o f i t b a s i s , i n which a t
l e a s t 95% o f t h e w a t e r s t o r e d o r s u p p l i e d i s used f o r f a r m i n g p u r p o s e s .
This l i m i t a t i o n reaffirmed t h e exclusion of a g r i c u l t u r a l l a b o r e r s
from t h e Labor Management R e l a t i o n s Act of 1947 ( 2 9 U.S.C.
t h e F a i r Labor S t a n d a r d s Act o f 1938 (29 U.S.C.

203).

L/

1 5 2 ) and
I n s o doing,

t h e FY 1974 Act used l a n g u a g e t h a t was i n i t i a l l y a t t a c h e d t o NLRB
a p p r o p r i a t i o n s f o r FY 1947 (P.L.

79-549;

60 S t a t . 6 9 8 ) .

t h e e x t e n d e d d e f i n i t i o n o f a g r i c u l t u r a l l a b o r e r s , P.L.

By m a i n t a i n i n g
93-194

i n c o r p o r a t e d language f i r s t a p p l i e d i n t h e FY 1954 a p p r o p r i a t i o n s
a c t (P.L.

83-170; 6 7 S t a t . 257-2581,

and, t h e r e b y , r e t a i n e d t h e e x p r e s s

exempt i o n o f t h i s g r o u p i n g from p o s s i b l e NLRB r u l e m a k i n g j u r i s d i c t i o n .
(2)

A p p r o p r i a t i o n s f o r t h e Department o f Housing and Urban

Development and Sundry I n d e p e n d e n t A g e n c i e s f o r FY 1976 (P.L.
89 S t a t . 581, 6 0 0 ) .

94-116,

Two p r o v i s i o n s were a t t a c h e d t o t h e a p p r o p r i a t i o n s

a c t t h a t l i m i t e d t h e rulemaking a u t h o r i t y o f two a g e n c i e s , t h e
Environmental P r o t e c t i o n Agency (EPA) and t h e Department o f Housing
and Urban Development (HUD)

.

1 / I n t h e 92d and 93d C o n g r e s s e s , t h e r e was c o n s i d e r a t i o n o f
s t a t u t o r i l y a p p l y i n g t h e s e two a c t s t o a g r i c u l t u r a l w o r k e r s ,
p o s s i b l y under t h e j u r i s d i c t i o n o f NLRB o r under a proposed
A g r i c u l t u r a l Labor Board w i t h s i m i l a r powers.
See: U.S.
Congress.
House. Committee on E d u c a t i o n and Labor.
Subcommittee on
A g r i c u l t u r a l Labor Management R e l a t i o n s .
H e a r i n g s , 93d C o n g r e s s ,
1st s e s s i o n , May 21, 1973. Washington, U.S. Govt. P r i n t . O f f . , 1974.

S e c t i o n 407 p r o v i d e d t h a t no such f u n d s c o u l d be used by EPA
t o " a d m i n i s t e r o r p r o m u l g a t e , d i r e c t l y o r i n d i r e c t l y , any program
t o t a x , l i m i t o r otherwise r e g u l a t e parking t h a t i s n o t s p e c i f i c a l l y
required pursuant t o subsequent l e g i s l a t i o n . "

The p r o h i b i t i o n on

EPA was based on t h e e x p e c t a t i o n t h a t EPA might d e v e l o p r e g u l a t i o n s
o r r e q u i r e c i t i e s t o impose t a x s u r c h a r g e s d e s i g n e d t o r e d u c e a i r
p o l l u t i o n g e n e r a t e d where l a r g e numbers o f a u t o m o b i l e s a r e g a t h e r e d ,
a s a t shopping c e n t e r s o r stadiums.

P r e c i s e l y what a c t i o n EPA

might have t a k e n was u n c e r t a i n , a c c o r d i n g t o f l o o r s t a t e m e n t s on
b e h a l f o f t h e p r o v i s i o n , s i n c e no s p e c i f i c r u l e s had been p r o p o s e d ;
and " t h e S e n a t e dropped t h i s p r o v i s i o n w i t h t h e u n d e r s t a n d i n g t h a t
t h e E n v i r o n m e n t a l P r o t e c t i o n Agency d i d n o t i n t e n d t o implement
t h e p a r k i n g p r o p o s a l w i t h o u t f u r t h e r a p p r o v a l and c l a r i f i c a t i o n
from t h e l e g i s l a t i v e c o m m i t t e e s

..

.'I

-11 N o n e t h e l e s s , a t t h e

i n s i s t e n c e o f t h e House c o n f e r e e s , t h e a p p r o p r i a t i o n s s t a t u t e
l i m i t a t i o n was e n a c t e d , a s an amended v e r s i o n o f t h e o r i g i n a l House
provision.

2/

It p r e c l u d e d any EPA rulemaking w i t h r e s p e c t t o

parking, b a r r i n g subsequent l e g i s l a t i o n t h a t might permit such a u t h o r i t y .

1/ Boland, Edward P. Conference Report on H.R. 8070. Remarks
i n ~ o u s e . C o n g r e s s i o n a l Record ( d a i l y e d . ) , v . 1 2 1 , Oct. 3 , 1975: H9567.
C o n g r e s s . Committee o f C o n f e r e n c e . Conference Report
2/ U.S.
t o ~ c k ~ H.R.
a n 8070.
~
Washington, U.S. Govt. P r i n t . O f f . , 1975.
( 9 4 t h C o n g r e s s , 1 s t s e s s i o n . House. Report no. 94-502).
p. 14.

A provision in section 408, also retained as a modification of
the House version, limited HUD's authority to establish noise control
standards for federally insured or federally assisted housing.
However, the effective scope of the limitation was severely constrained
through the Senate modification, which made the restraint applicable
only "in connection with construction in an area zoned for
residential use in Merced County, California." 1/

The final version,

&

incorporated as section 408, read:
Sec. 408. None of the funds provided by this
Act shall be used to deny or fail to act upon, on
tne basis of noise contours set forth in an Air
Installation Compatible Use Zone Map, an otherwise
acceptaole application for Federal Housing
Administration mortgage insurance in connection
witn construction in an area zoned for residential
use in Merced County, California.
(3)

454-455).

~ i g h w a ySafety Act of 1976 ( P . L .

94-280; 90 Stat. 425,

As noted above, sec. 20 of the Highway Safety Act overturned

a specific standard requiring motorcyclists to wear safety helmets,
promulgated by the National Highway Traffic Safety Administration/
Department of Transportation.

That section, in this authorization

act, also imposed funding restraints on the Secretary of Transportation's
discretion to ensure the adequacy and appropriateness of certain
safety standards.

Sec. 208(b) required the Secretary, in cooperation

with the States, to conduct an evaluation of the adequacy and

11 Merced County, California is in the congressional district
of ~ e p .B. F. Sisk, who had proposed broader limitations on the
House floor.

appropriateness of all uniform safety standards devised under this
program, and to report his findings and recommendations, including
revision or consolidation of existing standards, to Congress on or
before July 1, 1977.
The authorization limitation then followed : "Until such report
is submitted, the Secretary shall not

. . . withhold any apportionment

or any funds apportioned to any State because such State is failing
to implement a highway safety program approved by the Secretary
The funding restriction in sec

..

I'.

. 208(b) prohibited the withholding

of funds for approximately one year, from May 5, 1976, when the law
was enacted, until July 1, 1977, the final date of submission of
the secretary's required report.
Based on complaints from States,

sec. 2O8(b),

in effect,

relaxed enforcement of the safety standards, complementing an
earlier provision in sec. 208(a) that eased compliance with the
uniform safety standards.
Appropriations for the Departments of Labor, and Health,
Education and Welfare, and Related Agencies for FY 1977 (P.L. 94-439;
90 Stat. 1418, 1421).

Within this Act, the appropriations for the

Occupational Safety and Health Administration (OSHA) in the Labor
Department included two limitations on expenditures on behalf of

11 U.S.

Congress.

House.

Committee on Public Works and

rans sport at ion. Federal-Aid Highway Act of 1975: Report to

.,

Accompany H.R. 8235. Washington, U.S. Govt. Print. Off
1975.
(94th Congress, 1st session. House. Report no. 94-716.)

OSHA r u l e s and r e g u l a t i o n s .

The f i r s t p r o h i b i t e d OSHA from expending

o r o b l i g a t i n g any such f u n d s f o r t h e a s s e s s m e n t o f c i v i l p e n a l t i e s
i s s u e d f o r f i r s t i n s t a n c e v i o l a t i o n s o f any s t a n d a r d , r u l e o r r e g u l a t i o n
promulgated u n d e r t h e O c c u p a t i o n a l S a f e t y and H e a l t h Act of 1970
( o t h e r than c e r t a i n s e r i o u s o r repeated v i o l a t i o n s ) , u n l e s s t h e
workplace was c i t e d f o r more t h a n 10 v i o l a t i o n s i n t h e f i r s t i n s p e c t i o n .
The second l i m i t a t i o n p r e c l u d e d o b l i g a t i n g o r expending such
appropriated funds t o p r e s c r i b e , i s s u e , administer, o r enforce
any s t a n d a r d , r u l e , r e g u l a t i o n , o r o r d e r under t h e O c c u p a t i o n a l
S a f e t y and H e a l t h Act of 1970 which i s a p p l i c a b l e t o any p e r s o n

who i s engaged i n a farming o p e r a t i o n and employs 10 o r fewer
employees.

T h i s p r o v i s i o n adopted House l a n g u a g e i n l i m i t i n g OSHA

enforcement of i t s r e g u l a t i o n s 11 and a l o n g w i t h t h e former
l i m i t a t i o n s on OSHA e n f o r c e m e n t , was e x t e n d e d t o t h e FY 1978
a p p r o p r i a t i o n s through a p r o v i s i o n i n t h e subsequent r e s o l u t i o n
(P.L.

95-2051,

which s t a t e d :

11 U.S. Congress. Committee o f C o n f e r e n c e . C o n f e r e n c e Report
t o ~ c c o m ~ aH.R.
n ~ 14232. Washington, U.S. Govt. P r i n t . Off
1976.
( 9 4 t h C o n g r e s s , 2d s e s s i o n . House. Report no. 94-1384).

.,

No a p p r o p r i a t i o n o r fund made a v a i l a b l e o r a u t h o r i t y
g r a n t e d p u r s u a n t t o t h i s j o i n t r e s o l u t i o n s h a l l be
used t o i n i t i a t e o r resume any p r o j e c t o r a c t i v i t y
f o r which a p p r o p r i a t i o n s , f u n d s , o r o t h e r a u t h o r i t y
11
were n o t a v a i l a b l e d u r i n g t h e f i s c a l y e a r 1977. (5)

A p p r o p r i a t i o n s f o r t h e Department o f Housing and Urban

Development f o r FY 1978 (P.L.

95-119;

91 S t a t . 1073, 1 0 8 9 ) .

Sec. 408

of t h e s e a p p r o p r i a t i o n s included a funding l i m i t a t i o n , providing t h a t
no s u c h f u n d s " s h a l l be s u b j e c t t o t h e F e d e r a l r e g u l a t i o n d e f i n i n g
t h e c o n d i t i o n s u n d e r which two o r more p e r s o n s s h a l l b e e l i g i b l e
f o r admission t o public housing a s a family

. . ." I n e s s e h c e ,

t h i s r e s t r i c t i o n n u l l i f i e d a Housing and Urban Development (HUD)
r e g u l a t i o n t h a t u n i n t e n t i o n a l l y p e r m i t t e d homosexual c o u p l e s t o
be e l i g i b l e f o r public housing.

11 P.L. 95-205; 91 S t a t . 1460, 1461. The c o n t i n u i n g r e s o l u t i o n
f o r FF 1978 a p p r o p r i a t i o n s was n e c e s s i t a t e d by t h e f a i l u r e o f t h e
House and S e n a t e t o r e s o l v e d i f f e r e n c e s o v e r HEW a p p r o p r i a t i o n
restrictions.
A m o d i f i e d v e r s i o n o f t h e second l i m i t a t i o n on OSHA had a l s o
b e e n approved b y t h e S e n a t e i n t h e 9 5 t h Congress. H.R. 11445, t h e
Small B u s i n e s s A d m i n i s t r a t i o n A u t h o r i z a t i o n Act , had been amended
t o p r o v i d e t h a t s m a l l b u s i n e s s e s which employ 10 o r fewer employees
s h a l l be exempt from c o v e r a g e under t h e O c c u p a t i o n a l S a f e t y and
Health Act, u n l e s s a f i r m ' s i n j u r y / i l l n e s s r a t e i s c e r t i f i e d a t a
s p e c i f i e d l e v e l t o be too high.
T h i s would, t h e r e f o r e , exempt
a l l c e r t i f i e d small b u s i n e s s e s , n o t j u s t farms, a s t h e a p p r o p r i a t i o n s
a c t l i m i t a t i o n p r o v i d e s . House and S e n a t e o n f e r e e s a g r e e d t o a
s u b s t i t u t e v e r s i o n o f t h e s m a l l b u s i n e s s exemption t o OSHA h e a l t h
and s a f e t y r e g u l a t i o n s , r e t a i n i n g t h e c i v i l p e n a l t y and r e p o r t i n g
p r o v i s i o n s . U. S. Congress. House. Committee o f C o n f e r e n c e .
Amending t h e Small B u s i n e s s Act and t h e Small B u s i n e s s I n v e s t m e n t
Act o f 1 9 5 8 ; C o n f e r e n c e Report t o Accompany H.R. 11445. Washington,
U.S. Govt. P r i n t . O f f . , 1978. ( 9 5 t h C o n g r e s s , 2d s e s s i o n . House.
R e p o r t no. 95-1671).
p. 46. However, t h e b i l l , H.R. 11445, was
p o c k e t v e t o e d by P r e s i d e n t C a r t e r .

I n f i n a l r e g u l a t i o n s p u b l i s h e d on May 9 , 1977, HUD i n t r o d u c e d
t h e c r i t e r i a of a " s t a b l e family relationship'' t o determine
e l i g i b i l i t y , a c o n c e p t which gave r i s e t o unexpected i n t e r p r e t a t i o n s .
According t o t h e House s p o n s o r o f t h e amendment t o HUD a p p r o p r i a t i o n s :
T h i s development was n o t c o n t e m p l a t e d by t h e Department
and p o s e s a n i s s u e which i t i s u n p r e p a r e d t o d e a l w i t h
a t t h i s t i m e . It i s my u n d e r s t a n d i n g t h a t t h e
Department would l i k e t o r e c o n s i d e r t h e s e r e g u l a t i o n s
Department ought t o have an
f o r t h a t reason...The
opportunity t o reconsider those regulations

... L/

(6)

A p p r o p r i a t i o n s f o r t h e Department o f T r a n s p o r t a t i o n and

R e l a t e d A g e n c i e s f o r FY 1979 (P.L.

95-335; 92 S t a t . 435, 4 5 0 ) .

T h i s a p p r o p r i a t i o n a c t i n c l u d e d a p r o v i s i o n i n s e c . 317 t h a t
p r e c l u d e d t h e u s e o f such f u n d s " t o implement o r e n f o r c e any s t a n d a r d
o r r e g u l a t i o n which r e q u i r e s any motor v e h i c l e t o b e equipped w i t h
a n o c c u p a n t r e s t r a i n t system ( o t h e r t h a n a b e l t system)."

This

l i m i t a t i o n was added a s a n amendment on t h e House f l o o r , b y a v o t e
of 237-143 on June 1 2 , 1978, 2/ and l a t e r r e s t o r e d by t h e c o n f e r e e s ,
3/
when t h e S e n a t e had f a i l e d t o approve i t . -

1 / Boland, Edward P.
HUD A p p r o p r i a t i o n s f o r FY 1978. Remarks
i n th; House. C o n g r e s s i o n a l Record ( d a i l y e d . ) , v . 1 2 3 , J u n e 1 5 , 1977:
H593l.

-21

C o n g r e s s i o n a l Record ( d a i l y e d . ) , v . 124, J u n e 1 2 , 1978:

H5321.

3 / U.S.
Congress. Committee o f C o n f e r e n c e . C o n f e r e n c e Report
t o ~ c c o m ~ aH.R.
n ~ 12933. Washington, U.S. Govt P r i n t . O f f . , 1978.
p. 14.
( 9 5 t h C o n g r e s s , 2d s e s s i o n . House. Report no. 95-1329).

.

The main focus of the provision was a National Highway Traffic
Safety Administration (NHTSA)/Department of Transportation regulation
mandating that all new automobiles be equipped with air bags or other
passive restraints by the 1984 model year.

The regulation was

promulgated in June, 1977, calling for a phased introduction of passive
restraints, either automatic belt systems or airbags, beginning with
the 1982 model year and extending to all automobiles produced in the
1984 model year.

Consequently, the limitation included in the 1979

appropriations statute would not directly affect the standard whose
effective implementation dates were two and four years beyond the
end of the appropriations period.

Nonetheless, according to the

amendment's sponsor, Rep. Shuster, "this appropriations bill, while
not the best vehicle, is the only vehicle left for Members to express
themselves on an issue affecting the lives and pocketbooks of millions
of Americans ."11

Previous1y, 160 House Members cosponsored a

resolution of disapproval of the NHTSA rule; but the House did not
vote on it, since the Interstate and Foreign Commerce Committee
had voted against reporting out the disapproval resolution. 21

.

11 Bud Shuster
Remarks on an Amendment to the Transportation
~ ~ ~ r o p r i a t i oFiscal
n,
Year 1979. Remarks in House. Congressional
Record (daily ed.), v. 124, June 12, 1978: H5308.
21 Ibid. Interestingly, the Shuster amendment had been subject
to a parliamentary inquiry and point of order. Rep. Eckhardt stated
that "since this amendment in no way changes that [NHTSA] requirement
with respect to seat belts, passive seat belts, therefore this is
not in fact a retrenchment [of appropriated funds] .this is
legislation within an appropriations bill calling for specific
(21 continued)

..

(7)

A p p r o p r i a t i o n s f o r t h e T r e a s u r y Department

95-429;

(P.L.

92 S t a t . 1001, 1 0 0 2 ) .

...f o r FY 1 9 7 9

The f i s c a l y e a r 1979

a p p r o p r i a t i o n s f o r t h e Bureau o f A l c o h o l , Tobacco, and F i r e a r m s
(BATF) i n t h e T r e a s u r y Department c o n t a i n e d a p r o h i b i t i o n on u s i n g
such f u n d s f o r proposed gun c o n t r o l r e g u l a t i o n s .

No f u n d s were t o be

a v a i l a b l e f o r a d m i n i s t r a t i v e e x p e n s e s i n c o n n e c t i o n w i t h proposed
BATF r u l e s of March 2 1 , 1978, t h a t would have c o n s o l i d a t e d o r c e n t r a l i z e d
t h e r e c o r d s o f r e c e i p t and d i s p o s i t i o n o f f i r e a r m s , m a i n t a i n e d b y t h e
T r e a s u r y Department.

Moreover, b o t h Chambers a g r e e d t o d e l e t e $4.2

m i l l i o n from t h e BATF a p p r o p r i a t i o n s r e q u e s t , t h e amount e s t i m a t e d f o r
implementing t h e proposed r e g u l a t i o n s .

The r e s t r i c t i v e l a n g u a g e of

t h e f i n a l b i l l , which would a l s o p r e v e n t reprogramming t o implement
t h e proposed r e g u l a t i o n s , was d e f e n d e d by t h e S e n a t e A p p r o p r i a t i o n s

. . . t h e proposed r e g u l a t i o n s g o beyond t h e i n t e n t o f
Congress . . . I t would a p p e a r t h a t BATF and t h e Department o f T r e a s u r y
Committee:

I'

(2/ c o n t i n u e d ) a d d i t i o n a l d u t i e s on t h e p a r t o f t h e S e c r e t a r y of
Transportation; t h a t i s , i t d i r e c t s the Secretary of Transportation
t o r e v i s e h i s p r e s e n t modes o f p u t t i n g i n t o e f f e c t t h e r e s t r a i n t s
Rep. S h u s t e r r e b u t t e d , i n s i s t i n g t h a t t h e amendment " i s s i m p l y a
p r o p e r l i m i t a t i o n on t h e u s e o f f u n d s . No a d d i t i o n a l d u t i e s a r e
imposed upon t h e e x e c u t i v e . I ' The C h a i r c o n c u r r e d w i t h Rep. Shus t e r
and o v e r r u l e d t h e p o i n t o f o r d e r , a r g u i n g t h a t " i t i s w e l l s e t t l e d
t h a t a l i m i t a t i o n may n e g a t i v e l y r e s t r i c t f u n d i n g i n an a p p r o p r i a t i o n
a c t f o r p a r t o f a d i s c r e t i o n a r y a c t i v i t y a u t h o r i z e d by l a w i f no
new a f f i r m a t i v e d u t i e s o r d e t e r m i n a t i o n s a r e t h e r e b y r e q u i r e d ."
Ibid
J u n e 9 , 1978: H528O-H5281.

..."

.

a r e a t t e m p t i n g t o exceed t h e i r s t a t u t o r y a u t h o r i t y and a c c o m p l i s h by

r 2 y u l a t i o n t h a t which C o n g r e s s h a s d e c l i n e d t o l e g i s l a t e . "
(8)

-1/

A p p r o p r i a t i o n s f o r t h e Departments o f L a b o r , and H e a l t h ,

E d u c a t i o n and W e l f a r e , and R e l a t e d Agencies f o r FY 1979 (P.L.
92 S t a t . 1567, 1569-1570).

95-480;

Approved on t h e f i n a l d a y o f t h e 9 5 t h

C o n g r e s s , t h e FY 1979 a p p r o p r i a t i o n s f o r t h e Department o f Labor
:nntained

l i m i t a t i o n s on t h e O c c u p a t i o n a l S a f e t y and H e a l t h

:r i n i s t r a t i o n

(OSHA) t h a t e x t e n d e d beyond t h e p r e v i o u s r e s t r i c t i o n s

i n f i s c a l y e a r s 1977 and 1978, t h r o u g h P.L.
r e s p e c t i v e l y ( d e s c r i b e d above).

94-439

and P.L.

95-205,

Those l i m i t a t i o n s on OSHA a u t h o r i t y

p r e s c r i b e , i s s u e , a d m i n i s t e r , o r enforce c e r t a i n r u l e s included :
- - p r o h i b i t i n g OSHA from imposing c i v i l f i n e s f o r f i r s t - i n s t a n c e
h e a l t h o r s a f e t y v i o l a t i o n s of a non-serious n a t u r e , u n l e s s
t h e o f f e n d i n g e s t a b l i s h m e n t had been c i t e d f o r 10 o r more
v i o l a t i o n s on such i n s p e c t i o n ;
-prohibiting
OSHA from i s s u i n g c i v i l p e n a l i t i e s f o r n o n - s e r i o u s
v i o l a t i o n s by a n employer of 10 o r fewer employees i f t h e
e m p l o y e r , p r i o r t o t h e i n s p e c t i o n , had : ( 1 ) v o l u n t a r i l y r e q u e s t e d
c o n s u l t a t i o n u n d e r a s p e c i f i c a s s i s t a n c e program, ( 2 ) had t h e
c o n s u l t a n t examine t h e c o n d i t i o n c i t e d , and ( 3 ) made o r i s
making a " r e a s o n a b l e good f a i t h e f f o r t t o e l i m i n a t e t h e h a z a r d
c r e a t e d by t h e c o n d i t i o n c i t e d " ;
--exempting from OSHA j u r i s d i c t i o n , "any work a c t i v i t y by r e a s o n
of r e c r e a t i o n h u n t i n g , s h o o t i n g , o r f i s h i n g " ; and

1/ U.S.
C o n g r e s s . S e n a t e . Committee on A p p r o p r i a t i o n s .
, s u r y , P o s t a l S e r v i c e , and G e n e r a l Government A p p r o p r i a t i o n s B i l l ,
; Report t o Accompany H.R.
12930. Washington, U.S. Govt. P r i n t .
1978. ( 9 5 t h C o n g r e s s , 2d s e s s i o n . S e n a t e . Report no. 95-939).
12.

L e y

--exempting from OSHA j u r i s d i c t i o n , "any p e r s o n who i s engaged i n
a f a r m i n g o p e r a t i o n which d o e s n o t m a i n t a i n a t e m p o r a r y l a b o r
camp and employs 10 o r fewer employees."
This f i n a l r e s t r i c t i o n
r e s t o r e d l a n g u a g e from t h e House v e r s i o n t h a t had b e e n d e l e t e d
by t h e S e n a t e t o p e r m i t OSHA " t o i n s p e c t any f a r m , r e g a r d l e s s
o f s i z e , t h a t m a i n t a i n s a t e m p o r a r y l a b o r camp" 1 / ( i . e . , m i g r a n t
worker camp).

-

There had been an a t t e m p t on t h e f l o o r o f t h e House t o p r e v e n t
OSHA i n s p e c t i o n s o f any w o r k p l a c e employing fewer t h a n 100 p e r s o n s
w i t h o u t a s e a r c h w a r r a n t , i n t h e wake o f a Supreme C o u r t d e c i s i o n
p e r m i t t i n g an employer t o r e q u i r e a s e a r c h w a r r a n t b e f o r e i n s p e c t i o n .
A p o i n t o f o r d e r , however, was s u s t a i n e d a g a i n s t t h i s amendment, on t h e

g r o u n d s t h a t i t would h a v e r e q u i r e d " a f f i r m a t i v e a c t i o n b y a n e x e c u t i v e , I t
which c a n n o t accompany a p p r o p r i a t i o n s l i m i t a t i o n s . 2/
D.

REQUIRING FEDERAL AGENCY PRIOR CONSULTATION AND REVIEW

The s t a t u t o r y t e c h n i q u e s d i s c u s s e d above d i r e c t l y o v e r r i d e , p r e v e n t
t h e p r o m u l g a t i o n o f , o r e f f e c t t h e o v e r t u r n o f s p e c i f i c r u l e s and
r e g u l a t i o n s , by r e v o k i n g an e x p r e s s r u l e , a l t e r i n g t h e i s s u i n g a g e n c y ' s
j u r i s d i c t i o n , o r denying funds f o r enforcement o r implementation.
I n a d d i t i o n t o t h e s e m a n i f e s t c o n t r o l mechanisms, two o t h e r s t a t u t o r y
techniques--agency

p r i o r c o n s u l t a t i o n and r e v i e w r e q u i r e m e n t s and

advance n o t i c e ( t o C o n g r e s s ) p r o v i s i o n s - - d e s e r v e

mention.

Although

1 / U.S.
C o n g r e s s . Committee o f C o n f e r e n c e . Making A p p r o p r i a i o n s
f o r t?;e D e p a r t m e n t s o f L a b o r , and H e a l t h , E d u c a t i o n , and W e l f a r e , and
R e l a t e d A g e n c i e s ; Report t o Accompany H.R. 12929. Washington, U.S.
Govt. p r i n t . O f f . , 1978. ( 9 5 t h C o n g r e s s , 2d s e s s i o n . House. R e p o r t no.
p. 10.
95-1746).
2/ For d e b a t e and d e c i s i o n b y t h e c h a i r , s e e C o n g r e s s i o n a l Record
( d a i l y e d . ) , v . 1 2 4 , J u n e 7, 1978: H5117.

their influence is indirect and applicable to a category of rules,
rather than expressiy tied to a single rule, consultation and review
requirements interject new and possibly different perspectives and
recommendations in the decision-making process by requiring review
or consultation with units (i.e., other Federal agencies or
congressional committees) outside the rule-issuing agency.

The purpose

or effect of such statutory requirements, in certain instances, is to
retard the development or change the orientation of prospective rules
emanating from a particular agency.
The next section focuses on advance notification to the
Congress, whereas this section concentrates on statutory consultation
requirements among Federal agencies and between the Federal
agency and State authorities.

There appears to be a substantial

and increasing number of both types of prior notification,
consultation, and review provisions.

Several illustrations of

non-congressional review or consultation requirements follow.
( 1)

Insecticide , Fungicide, and Rodenticide Act ( P.L. 94-140;

89 Stat. 751, 752).

Sec. 2 of P.L. 94-140 amended the Federal

Insecticide, Fungicide, and Kodenticide Act, as amended, by providing
procedural changes for both proposed and final rules promulgated by
the Administrator of the Environmental Protection Agency (EPA).
Sixty days prior to signing proposed regulations and 30 days prior
to signing final regulations under that authority, the Administrator/
EPA must provide copies to the Secretary of Agriculture.

The

S e c r e t a r y may comaent i n w r i t i n g w i t h i n a s p e c i f i e d t i m e p e r i o d and
t h o s e comments, a l o n g w i t h t h e r e s p o n s e o f t h e A d m i n i s t r a t o r / ~ ~ A ,
a r e t o be p u b l i s h e d i n t h e F e d e r a l R e g i s t e r .
S u p p o r t i n g t h i s c o n s u l t a t i o n p r o v i s i o n , t h e S e n a t e Committee
on A g r i c u l t u r e and F o r e s t r y n o t e d t n e c o m p l e x i t y s u r r o u n d i n g r e g u l a t i o n s
i n t n e f i e l d of p e s t i c i d e c o n t r o l and EPA's " u n e n v i a b l e p o s i t i o n of
c h o o s i n g a c o u r s e t h a t must have t r a d e - o f f s

between t h e c o n f l i c t i n g

o b j e c t i v e s of e n v i r o n m e n t a l p r o t e c t i o n , and t h e economic a d v a n t a g e s
t h a t pesticide uses afford."

-11 I t was d e t e r m i n e d t h a t "EPA h a s

n o t always given adequate c o n s i d e r a t i o n t o a g r i c u l t u r e i n i t s
decisions.

. . Tnere i s c l e a r l y a need t o c o n s i d e r t h e i m p a c t o f

E P A ' S d e c i s i o n s on a g r i c u l t u r e i f b a l a n c e i s t o b e a c h i e v e d . "

(2)
(P.L.

-21

R a i l r o a d f i e v i t a l i z a t i o n and R e g u l a t o r y Reform Act o f 1976

94-210;

90 S t a t . 3 1 , 3 5 ) .

Among o t h e r t h i n g s , t h i s s t a t u t e

r e q u i r e d I n t e r s t a t e Commerce Commission ( K C ) c o n s u l t a t i o n w i t h t h e
F e d e r a l T r a d e Commission (FTC) and t h e A t t o r n e y G e n e r a l i n
e s t a b l i s h i n g r u l e s t o d e t e r m i n e "market dominance" o v e r a s e r v i c e
rendered a t a p a r t i c u l a r r a t e o r r a t e s .

The c o n f e r e n c e r e p o r t on

t h e b i l l emphasized t h a t t h e new r u l e s were " i n t e n d e d t o i n a u g u r a t e

1/ U.S.
Congress.
S e n a t e . Committee on A g r i c u l t u r e and
~ o r e s t r ~ I. n s e c t i c i d e , F u n g i c i d e , and R o d e n t i c i d e A c t ; R e p o r t t o
Accompany H.R. 8841. Washington, U.S. Govt. P r i n t . O f f . , 1975.
( 9 4 t h Congress, 1 s t session.
S e n a t e . R e p o r t n o . 94-452).
p. 5 .

-21

I b i d . , p. 9 .

a new e r a o f c o m p e t i t i v e p r i c i n g , " 1/ and adopted t h e concept of
"market dominance" a s a f a c t o r i n d e t e r m i n i n g whether a r a t e i s
lawful.

Rather than allowing the I C C t o e s t a b l i s h appropriate

s t a n d a r d s and procedures e x c l u s i v e 1y, sec

. 202 r e q u i r e d t h a t : "The

Commission s h a l l s o l i c i t and c o n s i d e r t h e r e c o r n e n d a t i o n s o f t h e
A t t o r n e y General and of t h e F e d e r a l Trade Commission i n t h e c o u r s e
o f e s t a b l i s h i n g such r u l e s . "

I n so doing, the provision incorporated

F e d e r a l a g e n c i e s a l r e a d y i n t i m a t e l y involved i n t h e i s s u e of
e f f e c t i v e competition.

(3)
454-455).

Highway S a f e t y Act of 1976 (P.L.

94-280;

90 S t a t . 425,

T h i s l e g i s l a t i o n i n c o r p o r a t e d s e v e r a l t e c h n i q u e s of

s t a t u t o r y c o n t r o l s over F e d e r a l r u l e s , i n c l u d i n g o v e r r i d i n g of a
r u l e and funding r e s t r a i n t s .
provided f o r F e d e r a l - S t a t e

I n a d d i t i o n , s e c . 208(b) of P.L.

94-280

c o o p e r a t ion i n e v a l u a t i n g and recommending

changes i n e x i s t i n g uniform s a f e t y s t a n d a r d s :

"The S e c r e t a r y of

T r a n s p o r t a t i o n s h a l l , i n c o o p e r a t i o n with t h e S t a t e s , conduct an
e v a l u a t i o n of t h e adequacy and a p p r o p r i a t e n e s s of a l l uniform s a f e t y
s t a n d a r d s e s t a b l i s h e d under s e c t i o n 402 of t i t l e 23 of t h e United
S t a t e s Code which a r e i n e f f e c t on t h e d a t e o f enactment
shall report

. . . [and]

h i s f i n d i n g s , t o g e t h e r with h i s recommendations,

1/ U.S.
Congress. Committee of Conference. Railroad R e v i t a l i z a t i o n
and ~ G ~ u l a t Reform
or~
Act; Report t o Accompany S. 2718. Washington,
U.S. Govt. P r i n t . O f f . , 1976. ( 9 4 t h Congress, 2d s e s s i o n . Senate.
Report no. 94-595).
p. 148.

i n c l u d i n g b u t n o t l i m i t e d t o , t h e need f o r r e v i s i o n o r c o n s o l i d a t i o n
o f e x i s t i n g s t a n d a r d s and t h e e s t a b l i s h m e n t o f new s t a n d a r d s , t o
Congress

. . ."

A s w i t h t h e o t h e r p r o v i s i o n s l i m i t i n g t h e Department o f T r a n s p o r t a t i o n

i n t h e A c t , s e c . 208(b) was added i n r e s p o n s e t o c o m p l a i n t s from S t a t e s
o f o v e r l y r i g i d a d m i n i s t r a t i o n and i n f l e x i b i l i t y r e g a r d i n g t h e s a f e t y

-

s t a n d a r d s promulgated by t h e N a t i o n a l Highway T r a f f i c S a f e t y A d m i n i s t r a t i o n . 1/
T h i s s e c t i o n sought t o p r o v i d e d i r e c t S t a t e p a r t i c i p a t i o n i n t h e e n s u i n g
evaluation.

I t d i d s o , i n c i d e n t a l l y , a t t h e same t i m e t h e S e c r e t a r y

was p r o h i b i t e d from w i t h h o l d i n g f u n d s a p p o r t i o n e d t o any S t a t e f o r
f a i l i n g t o implement a highway s a f e t y program approved by t h e S e c r e t a r y .
(4)

C o a s t a l Zone Management Act Amendments o f 1976 (P.L.

90 S t a t . 1013, 1 0 3 3 ) .

94-370;

T h i s Act p r e v e n t e d t h e S e c r e t a r y o f H e a l t h ,

E d u c a t i o n and Welfare (HEW) from p r o m u l g a t i n g f i n a l s h e l l f i s h s a f e t y
r e g u l a t i o n s u n t i l June 3 0 , 1977, n e a r l y a y e a r h e n c e .
t h a t m o r a t o r i u m was a c o n s u l t a t i o n r e q u i r e m e n t :

Accompanying

A t l e a s t s i x t y days

p r i o r t o t h e p r o m u l g a t i o n o f any such r e g u l a t i o n s , t h e Secretary/HEW,
i n c o n s u l t a t i o n w i t h t h e S e c r e t a r y o f Commerce, s h a l l p u b l i s h a n
a n a l y s i s o f ( 1 ) t h e economic impact o f s u c h r e g u l a t i o n s on t h e
d o m e s t i c s h e l l f i s h i n d u s t r y , and ( 2 ) t h e c o s t o f s u c h n a t i o n a l
s h e l l f i s h s a f e t y program r e l a t i v e t o t h e b e n e f i t s t h a t i t i s e x p e c t e d
t o achieve.

1/

U.S.

Congress. House. Committee on P u b l i c Works and
Federal-Aid Highway Act of 1975; R e p o r t t o Accompany
H.R. 8235. Washington, U.S. Govt. P r i n t . Off
1975. ( 9 4 t h C o n g r e s s ,
1st s e s s i o n . House. R e p o r t no. 94-716).

rans sport at ion.

.,

This moratorium on HEW rulemaking and the attendant consultation
requirement were designed to allow adequate time for the completion
of a comprehensive review of all aspects of the molluscan shellfish
industry and evaluation of the impact of Federal law concerning water
quality on that industry, to be conducted by the Commerce Department.
In consequence, projected Food and Drug Administration/HEW regulations,
anticipated to affect adversely shellfish processors and watermen,
would thereafter necessarily consider new data regarding their potential

.

impact /-I
(5)

Energy Conservation and Production Act (P.L.

90 Stat. 1125, 1128-1129).

94-385;

This Act limited the enforcement authority

of the Administrator of the Federal Energy Administration (FEA), as
noted above.

It also provided a requirement for hearings to be held

in geographical areas affected by FEA rules and regulations.

Where

hearings were to be held and the effects of proposed rulemaking were

-

"localized," 21 that is, confined to a single state or political
subdivision thereof, "the conference intended to assure that the
Federal Energy Administration will take into consideration the
particularized concerns and needs of the areas, governmental units
or residents most substantially affected."

31

1/ For discussion of the moratotium and consultation provisions,
see ~zn~ressional
Record (daily ed.), v. 122, June 30, 1976: H7077-H7078.

21 U.S.
Congress. Committee of Conference. Energy Conservation
and yod duct ion Act; Report to Accompany H.R. 12169, Washington, U.S.
Govt. Print. Off., 1976. (94th Congress, 2d session. House. Report no.
94-1392).
p. 61.

-31 Ibid.

(6)

Rail Transportation Improvement Act (P.L.

2613, 2630-2631).

94-555; 90 Stat.

As identified in a previous section, this act

of Oct. 19, 1976, contained a number of provisions affecting the
jurisdiction of the Interstate Commerce Commission (ICC).

It also

included in sec. 301 a required report incorporating prospective
regulations and utilizing inter-agency consultation, regarding "the
risk of outbreaks of disease or illnesses and any other adverse
environmental effects resulting from the discharge of waste from
railroad conveyances

. . . and the financial and operating hardships

on railroads or public authorities which would result from a
prohibition of waste disposal."

The report, submitted to Congress

by the Secretary of Health, Education and Welfare (HEW) in consultation
with the Interstate Commerce Commission and the Secretary of
Transportation, was to contain recommendations that any of the
authorities consider "appropriate to balance possible dangers of
disease or illness and environmental considerations with operating
or financial considerations

..

.I1

The required report was in recognition of concerns about
unregulated waste disposal, then only recently exempted from Food and

-

Drug Administration (FDA)/HEW regulatory authority. 1/ Nonetheless,
the consultation provision, attendant to that report and recommendation,
assured that they would not be HEW products exclusively and that

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

-1/ Sec. 705(e) of P.L. 94-210; 90 Stat. 124.

considerations other than the " r i s k of outbreaks of disease o r
i l l n e s s e s " would be i n c o r p o r a t e d - - i .e.,

f i n a n c i a l and o p e r a t i n g

h a r d s h i p s , t h e p r i n c i p a l r e a s o n s f o r exempting w a s t e d i s p o s a l from
FDA/HEW j u r i s d i c t i o n i n t h e e a r l i e r R a i l r o a d R e v i t a l i z a t i o n and
Reform Act (P.L.
(7)

94-210;

90 S t a t . 1 2 4 ) .

Clean A i r Act Amendments o f 1977 (P.L.

95-95;

91 S t a t .

S e c t i o n 120 o f t h e s e amendments t o t h e Clean A i r Act

685, 720-721).

r e q u i r e d t h e Environmental P r o t e c t i o n Agency (EPA) t o c o n s u l t w i t h
t h e N u c l e a r R e g u l a t o r y Commission (NRC) r e g a r d i n g r a d i o a c t i v e p o l l u t a n t s
t h a t were p l a c e d u n d e r t h e Act and EPA j u r i s d i c t i o n .
was two-fold:

That r e q u i r e m e n t

( 1 ) an EPA o b l i g a t i o n t o c o n s u l t w i t h NRC p r i o r t o

" l i s t i n g any s o u r c e m a t e r i a l , s p e c i a l n u c l e a r , o r b y p r o d u c t m a t e r i a l

..

a s an a i r p o l l u t a n t ; and ( 2 ) e s t a b l i s h m e n t o f "an i n t e r a g e n c y
agreement w i t h r e s p e c t t o t h o s e s o u r c e s o r f a c i l i t i e s which a r e
u n d e r t h e j u r i s d i c t i o n o f t h e C o m i s s i o n " r e g a r d i n g development,
i m p l e m e n t a t i o n , and enforcement o f e m i s s i o n l i m i t a t i o n s , s t a n d a r d s ,
and o t h e r r e q u i r e m e n t s .
S e c t i o n 120 a l s o extended beyond formal c o n s u l t a t i o n by p e r m i t t i n g
NRC t o o v e r r i d e o r " d i s a p p r o v e any EPA, S t a t e o r l o c a l s t a n d a r d

[ o r e m i s s i o n l i m i t a t i o n ] promulgated under t h e C l e a r A i r Act i f t h e
Commission f i n d s

. . . t h a t t h e a p p l i c a t i o n o f such s t a n d a r d would

.'I

endanger p u b l i c h e a l t h and s a f e t y . "

-11 The p r e s i d e n t , however, may

o v e r t u r n t h e NRC d i s a p p r o v a l w i t h i n 90 d a y s .

(8) Emergency I n t e r i m Consumer P r o d u c t S a f e t y S t a n d a r d s Act o f
1978 (P.L. 95-319; 92 S t a t . 386, 389).
-

This Act, e s t a b l i s h i n g a

s t a t u t o r y i n t e r i m s a f e t y standard f o r the manufacture o f c e l l u l o s e
i n s u l a t i o n , preempted Consumer P r o d u c t S a f e t y Commission (CPSC)
a u t h o r i t y i n t h i s regard.

CPSC, which had f a i l e d " t o e x e r c i s e i t s

-

a u t h o r i t y i n a time1 y manner , I 1 2 / however, was empowered t o amend
the interim standard.

The Commission, which was t o r e l y upon

a l r e a d y e x i s t i n g r e l e v a n t s t a n d a r d s d e v e l o p e d by t h e G e n e r a l S e r v i c e s
A d m i n i s t r a t i o n f o r t h e amendment, would n o t be r e q u i r e d t o p r o m u l g a t e

i t i f , a f t e r c o n s u l t a t i o n w i t h t h e S e c r e t a r y o f Energy, CPSC d e t e r m i n e d
t h a t t h e amendment was u n n e c e s s a r y o r i t s i m p l e m e n t a t i o n would c r e a t e
an undue burden upon t h e i n d u s t r y .

The r e p o r t i n g House Committee

on I n t e r s t a t e and F o r e i g n Commerce r e q u i r e d s u c h c o n s u l t a t i o n , a g r e e d
t o by t h e c o n f e r e n c e , " b e c a u s e t h e S e c r e t a r y may h a v e u s e f u l i n f o r m a t i o n
r e l a t i n g t o t h e need f o r t h e amendment and t h e amendment's i m p a c t on

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

the industry." 3/

1/ U.S.
C o n g r e s s . Committee o f C o n f e r e n c e . Clean A i r Act
~ m e n d z e n t sof 1977; Report t o Accompany H.R. 6161. ( 9 5 t h C o n g r e s s ,
1 s t s e s s i o n . House. Report n o . 95-564).
I n C o n g r e s s i o n a l Record
( d a i l y e d . ) , v . 1 2 3 , Aug. 3 , 1977: H8547.
21 U.S.
Congress. House. Committee on I n t e r s t a t e and F o r e i g n
commerce. Emergency I n t e r i m Consumer P r o d u c t S a f e t y Rule Act o f 1978;
Report t o Accompany H.R. 11998. Washington, U.S. Govt P r i n t . O f f . ,
1978. ( 9 5 t h C o n g r e s s , 2d s e s s i o n . House.
Report no. 95-1116).
p. 3 .

.

-31

Ibid.,

p. 8.

E.

ADVANCE OR PRIOR NOTICE PROVISIONS
A second indirect statutory mechanism that might be used to

constrain the promulgation of Federal agency rules is the advance
or prior notice provision; i.e.,

a statutory requirement that an

agency directly notify Congress or appropriate committees regarding
proposed or final rules, usually within a specified time (e .g., 30
or 60 days) before the rules become effective.

Many prior notification

requirements are associated with subsequent legislative veto mechanisms,
whereby a committee, a single Chamber, or Congress can disapprove
the proposed rule.

This section, however, considers only exclusive

prior notice provisions in an attempt to delineate alternatives to
legislative vetoes.
Such a requirement, of course, does not permit direct rejection
of a rule; but it does enable appropriate committees to be more
readily aware of forthcoming regulations than would otherwise be
1/
the case. -

In addition, since prior notification inc udes a lead-

time, usually of thirty or sixty days commensurate with the public
notice and comment provisions for the agency rules, the congressional
committee has opportunity to scrutinize the proposal before its
effective date, conduct hearings or authorize staff studies, and

1/ The Senate Study on Federal Regulation, p. 66, found that
under-the present circumstances, "Very few committees or committee
staff members systematically review the regulations issued by agencies
under their jurisdiction. Issues of the Federal Register containing
proposed agency rules are not regularly scrutinized."

comment on the proposed rule.

Moreover, such review authority,

even though lacking the sanction of a legislative veto, may provide
the necessary incentive for the informal negotiations between the
regulatory agency and congressional committee that Harold Bruff and
Ernest Gellhorn have described as "a highly efficient review technique:"
The congressional procedures required to bring
a legislative veto resolution to the floor of
either house are cumbersome and time-consuming.
It is therefore in the interest of both the agency
and its congressional oversight committees to avoid
resorting to these procedures by resolving policy
issues informally. As the case studies show,
informal negotiations with compromise on both sides
is characteristic of the review process under a
legislative veto provision. These negotiations
are a highly efficient review technique in
the sense that they resolve policy differences
between the agency and the committees relatively
quickly, and without destroying the coherence
of the resulting rule as an item veto might.
Indeed, it is when negotiations fail and the
formal machinery is invoked that policy impasse
threatens. I-/
Prior notice requirements, exclusive of those associated with
legislative veto provisions, have been incorporated in at least
fifteen pieces of legislation affecting Federal agency rulemaking
from 1973 through 1978. 2/

1/ Bruff and Gellhorn, Congressional Control of Administrative
~ e ~ u l ion,
T t p. 1433.

2/ This listing is extracted from three Congressional Research
serviTe inventories of legislative veto and advance notice provisions
included in statutes during the past forty-five years: U.S.
Library of Congress. Congressional Research Service.
(2-1' Continued )

(1) Comprehensive Employment and Training Act of 1973
(P.L. 93-203; 87 Stat. 839, 877).
Sec. 602(a) of this Act
required that rules, regulations, and guidelines proposed by the
Secretary of Labor under this statute must be submitted to the
appropriate committees of the Congress and also be published in
the Federal Register at least thirty days before their effective
date.
(2) Air Transportation Security Act of 1974 (P.L. 93-366;
88 Stat. 409, 415).
This Act, approved on August 5, 1974, in
the aftermath of numerous incidents of air piracy, required that
rules, regulations, and amendments thereto prescribed under Title I1
by the Administrator of the Federal Aviation Administration--for
the screening of passengers and property intended to be carried in
air transportation--must be submitted to Congress at least thirty
days in advance of their effective date, unless the Administrator
determines that an emergency exists. If so, such regulations may
take effect in less than thirty days and the Administrator must
notify Congress of this determination.
(3) Education Amendments of 1974 (P.L. 93-380; 88 Stat. 484,
567-568).
This Act incorporated a number of complex legislative
veto mechanisms and Sec. 509 included two exclusive prior notification
obligations. The first prior notice provision required that whenever
a concurrent resolution of disapproval is enacted by the Congress
under the provisions of section 509, the agency which issued the
disapproved standard, rule, regulation or requirement may thereafter
issue a modified standard, rule, regulation, or requirement to govern
the same or substantially identical circumstances, but shall, in
publishing such modification in the Federal Register, submit it to
the Speaker of the House of Representatives and the President of
the Senate, indicating how the modification differs from the
forerunner earlier disapproved, and how the agency believes the
modification disposes of the findings by the Congress in the
concurrent resolution of disapproval.

(2/ Continued) Congressional Review, Deferral and Disapproval of
~GecutiveActions: A Summary and an Inventory of Statutory
1976-1977
Authority (by) Clark Norton. (washington) 1976; ----Congressional Acts Authorizing Prior Review, Approval or Disapproval
of Proposed Executive Action (by) Clark Norton. (Washington) 1978;
----- 1978 Congressional Acts Authorizing Congressional
Approval or Disapproval of Proposed Executive Actions (by) Clark Norton.
(Washington) 1979.

.

.

A second obligation of section 509 provided that not later than
sixty days after the enactment of any part of an Act affecting the
administrat ion of any applicable program, the Commissioner of
Education shall submit to the Committee on Education and Labor of
the House of Representatives and the Committee on Labor and Public
Welfare (now the Committee on Human Resources) of the Senate a
schedule with which the Commissioner has planned to promulgate
rules, regulations, and guidelines implementing such Act or parts
thereof. However, if the Commissioner finds that, due to circumstances
unforeseen at the time of the submission of such schedule, he cannot
comply with it, he shall notify those committees of that finding
and submit a new schedule. The initial schedule submitted by the
Commissioner would not require committee approval, although the
modified new schedule would.

(4) Age Discrimination Act of 1975 (P.L. 94-135; 89 Stat. 713,
728-731).
The Age Discrimination Act of 1975, Title I11 of the
Older Americans Act Amendments of 1975, provided a two-tiered approach
for congressional review of proposed regulations. Sec. 304
required the Secretary of Health, Education and Welfare to publish
proposed general regulations to implement a statutory provision
prohibiting the exclusion of persons on the basis of age from
participating in programs receiving Federal financial assistance,
within one year after receipt of a report on the subject from the
Commission on Civil Rights. The Commission report, including
suggested general regulations, was to be transmitted to the Congress
and to the President and copies provided to the head of each Federal
department and agency with respect to which the Commission makes
findings or recommendations. Sec. 307(e) provided that each such
Federal department or agency, within 45 working days after receiving
a copy of the report, submit its comments and recommendations
regarding the report to the President and to the Senate Committee
on Labor and Public Welfare and the House Committee on Education
and Labor. During a subsequent 45-day period, any committee with
jurisdiction over this subject matter may conduct hearings with
respect to the Commission report and with respect to the department
and agency comments and recommendations resulting therefrom.
Following the 90-day period, the Secretary of HEW was to publish
final general regulations, taking into considerat on any comments
received with respect to the proposed regulations
( 5 ) Insecticide, Fungicide, and Rodenticide Act (P.L. 94-140;
89 Stat. 751, 753). Under the general authority o f this Act, the
Administrator of the Environmental Protection Agency is required
to submit copies of proposed regulations at least sixty days prior
to signing and copies of final regulations at least thirty days
prior to signing to the House Committee on Agriculture and the
Senate Committee on Agriculture and Forestry, along with copies
of both forms to the Secretary of Agriculture.

( 6 ) F o r e i g n R e l a t i o n s A u t h o r i z a t i o n A c t , F i s c a l Year 1976
(P.L. 94-141; 89 S t a t . 756, 770-7711.
The Act p r o v i d e d i n s e c t i o n
406 t h a t : r e g u l a t i o n s p r e s c r i b e d by t h e S e c r e t a r y o f S t a t e g o v e r n i n g
t h e c a r r y i n g o f f i r e a r m s by d e s i g n a t e d s e c u r i t y o f f i c e r s f o r t h e
purpose o f s p e c i f i e d p r o t e c t i v e r e s p o n s i b i l i t i e s , s h a l l be t r a n s m i t t e d
t o t h e S p e a k e r o f t h e House o f R e p r e s e n t a t i v e s and t h e S e n a t e
Committee on F o r e i g n R e l a t i o n s n o t more t h a n t w e n t y d a y s b e f o r e t h e
d a t e on which such r e g u l a t i o n s t a k e e f f e c t .
( 7 ) E d u c a t i o n f o r A l l Handicapped C h i l d r e n Act of 1975
(P.L. 94-142; 89 S t a t . 773, 794). T h i s Act amended t h e " E d u c a t i o n
S e c t i o n 5 ( a ) p r o v i d e d t h a t t h e Commissioner
o f t h e Handicapped Act .I'
of E d u c a t i o n p r e s c r i b e w i t h i n one y e a r c e r t a i n r e g u l a t i o n s a f f e c t i n g
m a t t e r s r e l a t e d t o p a r t i c u l a r l e a r n i n g d i s a b i l i t i e s and t h a t s u c h
proposed r e g u l a t i o n s be s u b m i t t e d t o t h e House Commit t e e on E d u c a t i o n
and Labor and t h e S e n a t e Committee on Labor and P u b l i c W e l f a r e , " f o r
r e v i e w and comment b y e a c h such c o m m i t t e e , a t l e a s t f i f t e e n d a y s
b e f o r e such r e g u l a t i o n i s published i n t h e Federal Register."
( 8 ) Energy P o l i c y and C o n s e r v a t i o n Act (P.L. 94-163; 89 S t a t .
871, 8 9 4 ) . One e x c l u s i v e p r i o r n o t i c e p r o v i s i o n was i n c l u d e d i n
t h i s A c t , which i n c o r p o r a t e d numerous l e g i s l a t i v e v e t o r e q u i r e m e n t s .
S e c t i o n 251 r e q u i r e d t h a t t h e P r e s i d e n t d e v e l o p r u l e s r e g a r d i n g
c e r t a i n U.S. o b l i g a t i o n s under t h e i n t e r n a t i o n a l e n e r g y program
b u t t h a t n o s u c h r u l e may t a k e e f f e c t u n l e s s t h e P r e s i d e n t h a s
t r a n s m i t t e d such r u l e t o t h e C o n g r e s s ; h a s found t h a t p u t t i n g s u c h
r u l e i n t o e f f e c t i s r e q u i r e d t o f u l f i l l U.S. o b l i g a t i o n s under
t h e i n

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3A79-206. Public record. Not legal advice.