Congressional Influence on Rulemaking and Regulation Through Appropriations Restrictions

Congressional research reportAug 5, 2008

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Order Code RL34354

Congressional Influence on Rulemaking and

Regulation Through Appropriations Restrictions

Updated August 5, 2008

Curtis W. Copeland

Specialist in American National Government

Government and Finance Division

Congressional Influence on Rulemaking and Regulation

Through Appropriations Restrictions

Summary

The statutory provision known as the Congressional Review Act (CRA) (5

U.S.C. §§801-808) has not been a frequently used method for Congress to control

agency rulemaking, having been used to overturn only one rule in the more than 12

years since it took effect. However, Congress has various other methods to influence

agency rulemaking and regulatory activity, including the addition of provisions to

agency appropriations bills that restrict federal rulemaking or regulatory activity.

The use of restrictions in appropriations legislation to control rulemaking has

received relatively little attention from scholars and analysts, but these restrictions

can have substantial effects on public policy. This report examines the Consolidated

Appropriations Act for 2008 (P.L. 110-161), and identifies four types of such

provisions: (1) restrictions on the finalization of particular proposed rules, (2)

restrictions on regulatory activity within certain areas, (3) implementation or

enforcement restrictions, and (4) conditional restrictions (e.g., preventing

implementation of a rule until certain actions are taken). The report then examines

appropriations acts in nine previous fiscal years, noting that some provisions have

been included in appropriations bills every year, and others have appeared for several

years in a row. Numerous examples of regulatory appropriations restrictions are

provided in this report. The reasons behind these restrictions vary, with some

appearing to be based on economic considerations, some requiring or preventing the

implementation of rules issued at the end of a presidential administration, and some

included for various other reasons.

Although none of the appropriations provisions appear designed to reverse

agency rulemaking actions (as the CRA was intended to permit), the number and

variety of the provisions clearly illustrate that Congress’s ability to oversee and affect

regulatory agencies is not confined to CRA resolutions of disapproval. On the other

hand, such provisions are generally applicable only for the period of time and the

agencies covered by the relevant appropriations bill. Also, to the extent that agencies

have independent sources of funding (e.g., user fees) or implement their regulations

through state or local governments, some of the limitations may not be as restrictive

as they seem. While appropriations provisions have been advocated by

representatives of virtually all political parties and interest groups, some observers

have questioned whether they are constitutional or conducive to sound public policy.

Nevertheless, their use by Congress is likely to continue as long as appropriations

bills are considered “must pass” legislation.

This report will be updated if any changes occur that alter the factual

information in the report.

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Regulatory Appropriations Provisions That Do Not Restrict Rulemaking . . . . . . 3

Initiation of Rulemaking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Rule Development Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

OMB Reporting Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Electronic Rulemaking Initiative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Appropriations Provisions and the Restriction of Rulemaking

or Regulatory Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Regulatory Restrictions in the Consolidated Appropriations Act for 2008 . . 8

Prohibiting the Finalization of Particular Proposed Rules . . . . . . . . . . . 8

Restricting Certain Types of Regulatory Activity . . . . . . . . . . . . . . . . 10

Restricting Implementation or Enforcement . . . . . . . . . . . . . . . . . . . . 12

Conditional Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Regulatory Restrictions in Previous Appropriations Bills . . . . . . . . . . . . . . 14

Provisions Repeated Every Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Multi-year Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Single-Year Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Reasons for Regulatory Appropriations Restrictions . . . . . . . . . . . . . . . . . . . . . . 17

Economic Concerns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Animal and Plant Health . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Real Estate Brokerage Activity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Pesticide Tolerance Processing Fees . . . . . . . . . . . . . . . . . . . . . . . . . . 20

End-of-Administration Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Hardrock Mining . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Arsenic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Snowmobiles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Hours of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Other Reasons for Regulatory Appropriations Restrictions . . . . . . . . . . . . . 24

Tire Grading Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Legislative Branch Details . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Vessel Traffic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Fairness Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Ending Regulatory Appropriation Restrictions . . . . . . . . . . . . . . . . . . . . . . 26

The Scope and Effect of Regulatory Appropriations Restrictions . . . . . . . . . . . . 27

Support for and Concerns Regarding Appropriations Restrictions . . . . . . . . . . . 31

Appropriations Restrictions and Rulemaking . . . . . . . . . . . . . . . . . . . . . . . 34

The Future . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

List of Tables

Table 1. Appropriations Provisions Affecting Rulemaking and Regulation,

Fiscal Years 1999 Through 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Congressional Influence on Rulemaking and

Regulation Through Appropriations

Restrictions

Introduction1

In March 1996, the statutory provisions commonly known as the “Congressional

Review Act” (CRA) (5 U.S.C. §§801-808) were included as part of the Small

Business Regulatory Enforcement Fairness Act. Under the CRA, before any final

rule can take effect, it must be filed with each house of Congress and the Government

Accountability Office (GAO). The act established expedited procedures by which

Congress may disapprove agencies’ rules by enacting a joint resolution of

disapproval, with subsequent presentation to the President for signature or veto.2

Although initially considered a reassertion of congressional authority over

rulemaking agencies, the CRA is now viewed by some observers as a far less

effective check on finalizing undesirable rules than originally anticipated. Between

April 1996 and April 2008, federal agencies submitted nearly 48,000 final rules to

GAO (and, presumably, to Congress), and 47 CRA joint resolutions of disapproval

were introduced regarding 35 rules. However, during this 12-year period, only one

rule was overturned through the CRA’s procedures — the Occupational Safety and

Health Administration’s (OSHA’s) ergonomics standard in March 2001 — and that

reversal was the result of a unique set of circumstances.3

Even though the CRA has resulted in the congressional reversal of only one

agency rule, Congress influences regulatory activity in a variety of other ways. Those

methods include specifically delineating in the underlying statutes how regulations

Morton Rosenberg, Specialist in American National Law in the American Law Division;

and Stuart Carmody, reference assistant in the Knowledge Services Group, collaborated in

the preparation of this report.

For a detailed discussion of CRA procedures, see CRS Report RL31160, Disapproval of

Regulations by Congress: Procedure Under the Congressional Review Act, by Richard S.

Beth.

In this case, the incoming President (George W. Bush) did not veto the resolution

disapproving the outgoing President’s (William J. Clinton’s) rule. See CRS Report

RL30116, Congressional Review of Agency Rulemaking: An Update and Assessment of the

Congressional Review Act After a Decade, by Morton Rosenberg, for a description of

several possible factors affecting the law’s use. Although the CRA has been used to

disapprove only one rule, it may have other, less discernable effects (e.g., keeping Congress

informed and preventing the publication of rules that may be disapproved).

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are to be written,4 statutory requirements delineating the analytical and procedural

steps that must be followed in the development of proposed and final rules,5

oversight hearings on particular rules or rulemaking requirements, confirmation

hearings for the heads of regulatory agencies, restrictions on rulemaking in

authorizing legislation,6 and provisions included in the text of agencies’

appropriations bills.7 Compared to the other congressional methods of influence,

appropriations provisions related to agency rulemaking and regulatory activity have

received comparatively little attention by scholars and analysts, but those provisions

can have substantial effects on public policy.8

All regulations start with an act of Congress, and are the means by which statutes are

implemented and specific requirements are established. The specificity of the statutory

basis for a regulation can vary significantly, from broad grants of rulemaking authority that

state the general intent of the legislation to very specific requirements delineating exactly

what regulatory agencies should do and how they should do it. For examples of both

general and specific statutory authorities, see U.S. General Accounting Office, Regulatory

Burden: Some Agencies’ Claims Regarding Lack of Rulemaking Discretion Have Merit,

GAO/GGD-99-20, January 8, 1999.

These statutory rulemaking requirements include the Administrative Procedure Act (5

U.S.C. §551 et seq.), the Paperwork Reduction Act (44 U.S.C. §§3501-3520), the

Regulatory Flexibility Act (5 U.S.C. §§601-612), Title II of the Unfunded Mandates Reform

Act (2 U.S.C. §§1532-1538), and the Information Quality Act (44 U.S.C. §§3504(d)(1) and

3516). For a discussion of these and other requirements, see CRS Report RL32240, The

Federal Rulemaking Process: An Overview, by Curtis W. Copeland.

For example, Section 206 of the Medicare, Medicaid, and SCHIP Extension Act of 2007

(P.L. 110-173, 121 Stat. 2514) prohibited the Secretary of the Department of Health and

Human Services from taking any action (including “through promulgation of regulation”)

to restrict coverage or payment under Title XIX of the Social Security Act for rehabilitation

services or school-based administration and school-based transportation. More recently,

H.R. 6660 in the 110th Congress (introduced July 30, 2008) would prohibit the Secretary of

Labor from “issuing, administering, or enforcing any rule, regulation, or requirement

derived from the proposal submitted to the Office of Management and Budget entitled

`Requirements for DOL Agencies’ Assessment of Occupational Health Risks’

(RIN:1290-AA23).” This draft proposed rule had not been published in the Federal

federal health programs to certify that they would not refuse to hire nurses and other

providers who object to abortion and even certain types of birth control.” Robert Pear,

“Abortion Proposal Sets Condition on Aid,” nytimes.com, available at

[http://www.nytimes.com/2008/07/15/washington/15rule.html?_r=1&ref=us&].

Limitations on the expenditure of funds may be in the text of appropriations legislation,

or in committee reports, conference reports, or managers’ statements. Only provisions in

the text of the legislation are legally binding. See CRS Report 98-518 GOV, Earmarks and

Limitations in Appropriations Bills, by Sandy Streeter. In this report, all of the provisions

mentioned were in the text of the appropriations legislation.

Some authors have discussed congressional mechanisms of executive agency control in

general or appropriations provisions specifically, and have mentioned restrictions on

regulatory activity as one element of those issues. See, for example, Frederick M. Kaiser,

“Congressional Control of Executive Actions in the Aftermath of the Chadha

Decision,”Administrative Law Review, vol. 36 (Summer 1984), pp. 258-259.

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This report focuses on appropriations provisions that affect rulemaking and

regulation, particularly those that prevent or restrict agency actions. After discussing

four types of such provisions in the Consolidated Appropriations Act of 2008 (P.L.

110-161), the report examines their prevalence over a longer period of time,

discusses why the provisions are used, and concludes with a discussion of their

perceived strengths and weaknesses. First, however, the report briefly discusses

several other types of regulatory appropriations measures.

Regulatory Appropriations Provisions That Do Not

Restrict Rulemaking

Although appropriations provisions that are designed to prevent or restrict the

development, implementation, or enforcement of particular rules or types of rules are

common, other types of appropriation measures are also prevalent and deserve

mention. These measures include those that require agencies to develop rules in

particular areas, that change the rulemaking process, that assign regulatory reporting

requirements, and that control the funding and operation of a regulatory initiative.

Initiation of Rulemaking

Some appropriations provisions direct federal agencies to develop rules in

particular areas, or to take particular enforcement actions. For example, a provision

in the Consolidated Appropriations Act for 2008 (121 Stat. 2084) amends the

Homeland Security Act of 2002 (6 U.S.C. §361 et seq.) and requires the Secretary of

the Department of Homeland Security to “regulate the sale and transfer of ammonium

nitrate by an ammonium nitrate facility in accordance with the subtitle to prevent the

misappropriation or use of ammonium nitrate in an act of terrorism.” The provision

delineates what the regulations must contain (e.g., a registration process for owners,

records that must be maintained, and an appeals process); and mandates that the

Secretary “(1) shall issue a proposed rule implementing this subtitle not later than 6

months after the date of the enactment of this subtitle; and (2) shall issue a final rule

implementing this subtitle not later than 1 year after such date of enactment.”

In some cases, the congressional requirement for agency rulemaking is

conditional upon other factors. For example, the Consolidated Appropriations Act

for 2004 (P.L. 108-199, 118 Stat. 236) requires the Secretary of Labor to “re-propose

a rule on respirable coal dust which incorporates the use of Personal Dust Monitors,”

but only after “the successful demonstration of Personal Dust Monitor technology,

and if the Secretary of Labor makes a determination that Personal Dust Monitors can

be effectively applied in a regulatory scheme.”9

In July 2000, the Department of Labor issued a proposed rule on coal dust monitoring. See

U.S. Department of Labor, Mine Safety and Health Administration, and U.S. Department

of Health and Human Services, Centers for Disease Control and Prevention, “Determination

of Respirable Coal Mine Dust,” 65 Federal Register 42068, July 7, 2000.

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In other cases, particular amounts of funds are set aside for rulemaking. For

example, the Consolidated Appropriations Act for 2008 (121 Stat. 2128) states that

not less than $3.5 million of the funds provided in EPA’s Environmental Programs

and Management account “shall be provided for activities to develop and publish a

draft rule not later than 9 months after the date of enactment of this Act, and a final

rule not later than 18 months after the date of enactment of this Act, to require

mandatory reporting of greenhouse gas emissions above appropriate thresholds in all

sectors of the economy of the United States.”

Rule Development Process

Other appropriations provisions affect the process by which certain types of

rules are developed, and therefore the participants in that process. For example,

Executive Order 12866 requires the Office of Management and Budget’s (OMB’s)

Office of Information and Regulatory Affairs (OIRA) to review most agencies’

significant rules before they are published in the Federal Register.10 However, a

provision within the Consolidated Appropriations Act for 2008 (121 Stat. 1982)

states that “none of the funds appropriated in this Act for the Office of Management

and Budget [OMB] may be used for the purpose of reviewing any agricultural

marketing orders or any activities or regulations under the provisions of the

Agricultural Marketing Agreement Act of 1937 (7 U.S.C. §601 et seq.).”11 Another

provision in the same section of the act states that “none of the funds provided in this

or prior Acts shall be used, directly or indirectly, by the Office of Management and

Budget, for evaluating or determining if water resource project or study reports

submitted by the Chief of Engineers acting through the Secretary of the Army are in

compliance with all applicable laws, regulations, and requirements relevant to the

Civil Works water resource planning process.”12

Provisions added to appropriations bills in previous years have also led to the

establishment of new procedural requirements on rulemaking agencies. For example,

Consolidated Appropriations Act, 2001 (P.L. 106-554, 114 Stat. 2763A-154)

established what came to be known as the Information Quality Act (sometimes

referred to as the Data Quality Act). The provision required OMB to issue guidance

to federal agencies designed to ensure the “quality, objectivity, utility, and integrity”

For more information on OIRA and this review process, see CRS Report RL32397,

Federal Rulemaking: The Role of the Office of Information and Regulatory Affairs, by

Curtis W. Copeland.

This restriction on the review of agricultural marketing orders has been attached to

OMB’s appropriation every year since 1983, and was reportedly enacted “at the insistence

of agricultural interests that were angry at OMB’s application of [Executive Order 12291’s]

economic principles to modify or disapprove their marketing orders.” Christopher C.

DeMuth and Douglas H. Ginsburg, “White House Review of Agency Rulemaking,” Harvard

Law Review, vol. 99 (March 1986), p. 1087. For background on this action, see Jeffrey H.

Birnbaum, “Farm, Budget Officials Clash on Supply Curbs by Marketing Boards,” Wall

Street Journal, December 7, 1982, p. 1.

This provision has been attached to OMB’s appropriation every year since 2005.

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of information disseminated to the public.13 It also required agencies to issue their

own information quality guidelines, and to establish administrative mechanisms that

allow affected persons to seek correction of information maintained and disseminated

by the agencies that does not comply with the OMB guidance.14

Other appropriations provisions have attempted to prevent the establishment of

certain new rulemaking procedures. For example, as passed by the House, Section

901 of the Financial Services and General Government (FSGG) Appropriations Act,

2008 (H.R. 2829, which funded OMB, among other agencies) stated that “None of

the funds made available by this Act may be used to implement Executive Order

13422.” That executive order, which had been issued by President Bush in January

2007, required (among other things) that agencies give OMB advance notification of

any significant guidance documents, and that each agency head designate a

presidential appointee as a regulatory policy officer.15 The order also gave these

officers enhanced power to control agency rulemaking.16 Ultimately, though, this

provision was not enacted. The FSGG appropriations bill was later folded into the

Consolidated Appropriations Act for 2008, and the final version of the legislation did

not contain any language regarding the executive order. A similar provision has

reportedly been added to the FSGG bill for FY2009.17

OMB Reporting Requirements

Certain appropriations provisions have imposed regulatory reporting

requirements on OMB. Section 645(a) of the Treasury, Postal Service and General

Government Appropriations Act, 1997 (P.L. 104-208) required the Director of OMB

to submit a report to Congress providing

(1) estimates of the total annual costs and benefits of Federal regulatory

programs, including quantitative and nonquantitative measures of regulatory

costs and benefits; (2) estimates of the costs and benefits (including quantitative

and nonquantitative measures) of each rule that is likely to have a gross annual

effect on the economy of $100,000,000 or more in increased costs; (3) an

assessment of the direct and indirect impacts of Federal rules on the private

sector, State and local government, and the Federal Government; and (4)

recommendations from the Director and a description of significant public

comments to reform or eliminate any Federal regulatory program or program

OMB published final guidelines (with a request for further comments on certain points)

on September 28, 2001 (66 Federal Register 49718), and later republished the guidelines

(after making changes pursuant to public comments) on February 22, 2002 (67 Federal

For more on this issue, see CRS Report RL32532, The Information Quality Act: OMB’s

Guidance and Initial Implementation, by Curtis W. Copeland.

See [http://www.whitehouse.gov/news/releases/2007/01/20070118.html] for a copy of this

executive order.

For more on this issue, see CRS Report RL33862, Changes to the OMB Regulatory

Review Process by Executive Order 13422, by Curtis W. Copeland.

Ralph Lindeman, “House Panel Again to Block Spending on Bush-Appointed Regulatory

Policy Officers,” BNA Daily Report for Executives, July 1, 2008, p. A-17.

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element that is inefficient, ineffective, or is not a sound use of the Nation’s

resources.

Appropriations legislation for the next several years essentially repeated these

requirements, and a provision added to OMB’s appropriation for FY2001 made this

type of reporting requirement permanent.18

Electronic Rulemaking Initiative

Congress has also used appropriations provisions in an attempt to control

transfers of funding and reimbursements for the Bush Administration’s electronic

rulemaking initiative and other e-government projects. From FY2003 through

FY2007, Congress appropriated less than $20 million to the E-Government Fund for

all e-government projects — much less than the $345 million authorized in the

E-Government Act for that period.19 The lack of direct appropriations for

e-government has led to controversial funding mechanisms, in which at least 10

e-government projects (including electronic rulemaking) have been funded by

required “contributions” from participating agencies. In response, for several years

in a row, Congress has required approval by the Appropriations Committees before

any transfers or reimbursements of agency appropriations are made. For example,

one of the governmentwide provisions in the Consolidated Appropriations Act for

2008 (Section 737) states that “no funds shall be available for transfers or

reimbursements to the E-Government initiatives sponsored by the Office of

Management and Budget prior to 15 days following submission of a report to the

Committees on Appropriations by the Director of the Office of Management and

Budget and receipt of approval to transfer funds by the House and Senate

Committees on Appropriations.” The provision goes on to require justification

materials for subsequent funding requests, and says that “no funds shall be available

for obligation or expenditure for new E-Government initiatives without the explicit

approval of the House and Senate Committees on Appropriations.”20

Section 624 of the Consolidated Appropriations Act, 2001 (P.L. 106-554, 114 Stat.

2763A-161, codified at 31 U.S.C. §1105 note), also called the “Regulatory Right-to-Know

Act.” The provision required OMB to submit an “accounting statement and associated

report” for FY2002 “and each year thereafter” that included “(1) an estimate of the total

annual costs and benefits (including quantifiable and nonquantifiable effects) of Federal

rules and paperwork, to the extent feasible — (A) in the aggregate; (B) by agency and

agency program; and (C) by major rule; (2) an analysis of impacts of Federal regulation on

State, local, and tribal government, small business, wages, and economic growth; and (3)

recommendations for reform.”

Section 101 of the E-Government Act (which added a new Chapter 36 to Title 44 of the

United States Code) established an “E-Government Fund” that was to be used to support

projects “that enable the Federal Government to expand its ability, through the development

and implementation of innovative uses of the Internet or other electronic methods, to

conduct activities electronically.”

For more on e-rulemaking and this funding issue, see CRS Report RL34210, Electronic

Rulemaking in the Federal Government, by Curtis W. Copeland.

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Appropriations Provisions and the Restriction of

Rulemaking or Regulatory Action

Many other provisions in appropriations acts are intended to prevent or restrict

federal agencies from taking certain rulemaking or regulatory actions. In fact, one

author, writing about appropriations provisions in general, said the following:

The classic appropriation rider is negative in its thrust and strictly pertains to the

expenditure of funds. It declares that the agency may not spend any of the monies

Congress is appropriating to engage in a specific activity described in the

legislation. This type of rider is often described as a “limitation rider” because

it limits the executive branch from engaging in certain activity by denying the

funds necessary for its undertaking. For instance, a rider may provide that an

agency cannot spend money to buy equipment or to hire personnel for a

particular office. More substantively, a rider may provide that the agency cannot

spend money to prepare a study on a specific topic, to propose a rule on a

specific topic, to make final a pending proposed rule, to implement a final rule,

to make a legal argument in court, or to appeal a pending case.21

Some of the more high-profile appropriations restrictions regarding agency

rulemaking have received attention by analysts and scholars. For example, GAO and

others have written about congressional restrictions on the development of corporate

average fuel economy, or “CAFE,” standards.22 For six years (FY1996 through

FY2001), the Department of Transportation’s (DOT’s) appropriations acts stated that

none of the funds in the acts could be used to prepare, propose, or promulgate

regulations prescribing CAFE standards for automobiles that differed from the

standards promulgated prior to the enactment of the legislation. Other regulatoryrelated appropriations restrictions that have garnered some attention include

provisions preventing the implementation of the Delaney Clause (a provision of the

Federal Food, Drug, and Cosmetic Act that banned any additive in processed food

that had been shown to cause cancer in humans or laboratory animals);23 and

Richard J. Lazarus, “Congressional Descent: The Demise of Deliberative Democracy in

Environmental Law,” Georgetown Law Journal, vol. 94 (March 2006), p. 635. Although

legislative provisions in annual appropriations acts are often referred to as “riders,” the use

of the term “rider” is avoided in this report because it is slang and because there is no

common agreement as to whether it should apply to limitation provisions as well as

legislative provisions. See CRS Report RL30619, Examples of Legislative Provisions in

Omnibus Appropriations Acts, by Robert Keith.

See, for example, U.S. General Accounting Office, Department of Transportation,

National Highway Traffic Safety Administration: Light Truck Average Fuel Economy

Standard, Model Year 2000, GAO/OGC-98-42, April 17, 1998; and U.S. Government

Accountability Office, Vehicle Fuel Economy: Reforming Fuel Economy Standards Could

Help Reduce Oil Consumption by Cars and Light Trucks, and Other Options Could

Complement These Standards, GAO-07-921, August 2, 2007.

The Food Quality Protection Act of 1996 (P.L. 104-170) eliminated the distinction

between raw and processed food tolerances so that all pesticide residues will be regulated

under an amended Federal Food, Drug, and Cosmetic Act, which requires all tolerances to

(continued...)

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prohibitions on OSHA developing or issuing regulations on ergonomics (which were

enacted before the adoption of the January 2001 resolution of disapproval under the

CRA).24 A “timber salvage rider” that Congress enacted in 1995 reportedly

accelerated the use of restrictions in environmental appropriations legislation during

the remainder of the 1990s.25 However, many other appropriations restrictions

related to rulemaking or regulatory action have not received much attention in the

relevant literature.

Regulatory Restrictions in the Consolidated

Appropriations Act for 2008

To determine the frequency and nature of regulatory appropriations restrictions,

CRS initially searched the Consolidated Appropriations Act for 2008 for provisions

that were designed to prohibit or limit the development, implementation, or

enforcement of agency regulations.26 The search revealed nearly two dozen such

provisions in the act, which generally fell into four categories: (1) prohibitions on the

finalization of particular proposed rules, (2) prohibitions on the development of

regulations with regard to particular statutes or issues, (3) implementation or

enforcement restrictions, and (4) conditional restrictions on the development or

implementation of particular rules.

Prohibiting the Finalization of Particular Proposed Rules. Several

provisions in the Consolidated Appropriations Act deny the use of agency funds to

make particular proposed rules final. For example:

Section 723 within Division A of the legislation (the Agriculture,

Rural Development, Food and Drug Administration, and Related

Agencies Appropriations Act, 2008; 121 Stat. 1878) states: “None

of the funds made available by this Act may be used to issue a final

rule in furtherance of, or otherwise implement, the proposed rule on

cost-sharing for animal and plant health emergency programs of the

Animal and Plant Health Inspection Service [APHIS] published on

(...continued)

be “safe,” ensuring a “reasonable certainty of no harm” from pesticides. See CRS Report

96-759 ENR, Pesticide Legislation: Food Quality Protection Act of 1996 (P.L. 104-170),

by Linda-Jo Schierow.

For example, Section 104 of the Department of Labor’s appropriation legislation for

FY1998 (P.L. 105-78) stated that “None of the funds made available in this Act may be used

by the Occupational Safety and Health Administration to promulgate or issue any proposed

or final standard regarding ergonomic protection before September 30, 1998.” However,

the legislation expressly did not prohibit OSHA from issuing voluntary guidelines on

ergonomic protection or from developing a proposed standard regarding ergonomic

protection.

Richard J. Lazarus, “Congressional Descent,” pp. 643-644.

CRS electronically searched the act using words and phrases such as “regulations,” “final

rule,” “proposed rule,” and “none of the funds.” Although this approach revealed the

regulatory appropriations restrictions discussed in this report, other restrictions may have

been in this and other appropriations bills that did not contain those words or phrases.

CRS-9

July 8, 2003 (Docket No. 02-062-1; 68 Fed. Reg. 40541).” As

discussed in detail later in this report, the July 2003 APHIS rule

would have required states and certain groups to pay a greater share

of the cost of these programs.

Section 735 within Division D of the legislation (the Financial

Services and General Government Appropriations Act, 2008; 121

Stat. 2027) states that “none of the funds appropriated or made

available under this Act or any other appropriations Act may be used

... to implement the proposed regulations of the Office of Personnel

Management [OPM] to add sections 300.311 through 300.316 to

part 300 of Title 5 of the Code of Federal Regulations, published in

the Federal Register, volume 68, number 174, on September 9, 2003

(relating to the detail of executive branch employees to the

legislative branch).”

Section 559 within Division E of the legislation (the Department of

Homeland Security Appropriations Act, 2008; 121 Stat. 2083) states:

“None of the funds made available in this Act may be used by the

Secretary of Homeland Security or any delegate of the Secretary to

issue any rule or regulation which implements the Notice of

Proposed Rulemaking related to Petitions for Aliens To Perform

Temporary Nonagricultural Services or Labor (H-2B) set out

beginning on 70 Fed. Reg. 3984 (January 27, 2005).” An H-2B alien

is someone who comes to the United States to perform temporary

nonagricultural labor or services, and the proposed rule would have

facilitated the use of the H-2B program by creating a simplified

application process.

Section 432 within Division F of the legislation (the Department of

the Interior, Environment, and Related Agencies Appropriations Act,

2008; 121 Stat. 2152) states: “None of the funds made available

under this Act may be used to promulgate or implement the

Environmental Protection Agency [EPA] proposed regulations

published in the Federal Register on January 3, 2007 (72 Fed. Reg.

69).” The proposed rule at issue would have amended the general

provisions to the national emission standards for hazardous air

pollutants, replacing a policy that had been established in 1995.

Section 170 within Division K of the legislation (the Transportation,

Housing and Urban Development, and Related Agencies

Appropriations Act, 2008; 121 Stat. 2401) states: “None of the funds

provided or limited under this Act may be used to issue a final

regulation under section 5309 of title 49, United States Code, except

that the Federal Transit Administration may continue to review

comments received on the proposed rule (Docket No.

FTA-2006-25737).” The targeted proposed rule would have made

CRS-10

changes in the Federal Transit Administration’s “small starts” capital

investment grant program. 27

Restricting Certain Types of Regulatory Activity. Other provisions in

the Consolidated Appropriations Act for 2008 are more general, prohibiting the

development, issuance, amendment, implementation, or enforcement of certain types

of regulations. For example:

Section 726 within Division A of the legislation (funding, among

others, the Department of Agriculture, 121 Stat. 1878) states: “None

of the funds provided in this Act may be used for salaries and

expenses to draft or implement any regulation or rule insofar as it

would require recertification of rural status for each electric and

telecommunications borrower for the Rural Electrification and

Telecommunication Loans program.”

Section 511 within Division D of the legislation (121 Stat. 1998)

states: “None of the funds appropriated by this Act may be used by

the Federal Communications Commission to modify, amend, or

change its rules or regulations for universal service support

payments to implement the February 27, 2004 recommendations of

the Federal-State Joint Board on Universal Service regarding single

connection or primary line restrictions on universal service support

payments.”

Section 617 within Division D of the legislation (121 Stat. 2015)

states that “for fiscal years 2008 and 2009, neither the Board of

Governors of the Federal Reserve System nor the Secretary of the

Treasury may determine, by rule, regulation, order, or otherwise, for

the purposes of section 4(K) of the Bank Holding Company Act of

1956, or section 5136A of the Revised Statutes of the United States,

that real estate brokerage activity or real estate management activity

(which for purposes of this paragraph shall be defined to mean ‘real

estate brokerage’ and ‘property management’ respectively, as those

terms were understood by the Federal Reserve Board prior to March

11, 2000) is an activity that is financial in nature, is incidental to any

financial activity, or is complementary to a financial activity.”

Section 823 within Division D of the legislation (within the general

provisions applicable to the District of Columbia, 121 Stat. 2041)

states: “None of the funds contained in this Act may be used to enact

or carry out any law, rule, or regulation to legalize or otherwise

reduce penalties associated with the possession, use, or distribution

U.S. Department of Transportation, Federal Transit Administration, “Major Capital

Investment Projects,” 72 Federal Register 43327, August 3, 2007.

CRS-11

of any schedule I substance under the Controlled Substances Act (21

U.S.C. 801 et seq.) or any tetrahydrocannabinols derivative.”28

Section 433 of Division F of the legislation (121 Stat. 2152) states:

“None of the funds made available by this Act shall be used to

prepare or publish final regulations regarding a commercial leasing

program for oil shale resources on public lands pursuant to section

369(d) of the Energy Policy Act of 2005 (P.L. 109-58) or to conduct

an oil shale lease sale pursuant to subsection 369(e) of such Act.”

A portion of Division G of the legislation (providing funds for

salaries and expenses at OSHA as part of the Departments of Labor,

Health and Human Services, and Education, and Related Agencies

Appropriations Act, 2008; 121 Stat. 2163) contains a provision

stating that “none of the funds appropriated under this paragraph

shall be obligated or expended to prescribe, issue, administer, or

enforce any standard, rule, regulation, or order under the Act which

is applicable to any person who is engaged in a farming operation

which does not maintain a temporary labor camp and employs 10 or

fewer employees.”

A section of the legislation within Division K of the act having to do

with Federal Aviation Administration (FAA) operations (121 Stat.

2379) states that “none of the funds in this Act shall be available for

the Federal Aviation Administration to finalize or implement any

regulation that would promulgate new aviation user fees not

specifically authorized by law after the date of the enactment of this

Act.”

Section 111 within Division K (121 Stat. 2381) states: “None of the

funds in this Act shall be used to pursue or adopt guidelines or

regulations requiring airport sponsors to provide to the Federal

Aviation Administration without cost building construction,

maintenance, utilities and expenses, or space in airport

sponsor-owned buildings for services relating to air traffic control,

air navigation, or weather reporting”;29 and

Another section within Division K having to do with operations and

research at the National Highway Traffic Safety Administration

(NHTSA, 121 Stat. 2391) states that “none of the funds appropriated

by this Act may be obligated or expended to plan, finalize, or

implement any rulemaking to add to section 575.104 of title 49 of

Tetrahydrocannabinol (also known as THC) is the active chemical in cannabis, or

marihuana.

The provision goes on to say that “the prohibition of funds in this section does not apply

to negotiations between the agency and airport sponsors to achieve agreement on

‘below-market’ rates for these items or to grant assurances that require airport sponsors to

provide land without cost to the FAA for air traffic control facilities.”

CRS-12

the Code of Federal Regulations any requirement pertaining to a

[tire] grading standard that is different from the three grading

standards (treadwear, traction, and temperature resistance) already

in effect.”

Restricting Implementation or Enforcement. In still other cases,

language in the Consolidated Appropriations Act of 2008 prohibits the use of funds

to implement or enforce a rule or set of rules, but does not appear to prohibit the

development of the rules. In some cases a particular rule or set of rules is specified,

but in other cases it is not clear whether any particular rules on the issues are already

in place. For example:

Section 741 within Division A of the legislation (funding the

Department of Agriculture and other agencies, 121 Stat. 1881)

states: “None of the funds made available in this Act may be used to

pay the salaries or expenses of personnel to — (1) inspect horses

under section 3 of the Federal Meat Inspection Act (21 U.S.C. 603);

(2) inspect horses under section 903 of the Federal Agriculture

Improvement and Reform Act of 1996 (7 U.S.C. 1901 note; P.L.

104-127); or (3) implement or enforce section 352.19 of title 9, Code

of Federal Regulations.”30

A condition in Division D of the legislation that is associated with

a nearly $118 million payment to the Postal Service Fund for

revenue forgone on free and reduced-rate mail (121 Stat. 2013)

states that “none of the funds made available to the Postal Service by

this Act shall be used to implement any rule, regulation, or policy of

charging any officer or employee of any State or local child support

enforcement agency, or any individual participating in a State or

local program of child support enforcement, a fee for information

requested or provided concerning an address of a postal customer.”

Section 621 within Division D of the legislation (funding the

Department of the Treasury and other agencies, 121 Stat. 2016)

states: “None of the funds made available by this Act may be used

by the Federal Communications Commission to implement the

Fairness Doctrine, as repealed in General Fairness Doctrine

Obligations of Broadcast Licensees (50 Fed. Reg. 35418 (1985)), or

any other regulations having the same substance.”

Title I of Division G of the legislation (funding salaries and

expenses at OSHA, 121 Stat. 2163) states that “no funds

appropriated under this paragraph shall be obligated or expended to

administer or enforce any standard, rule, regulation, or order under

Section 3 of the Meat Inspection Act covers the inspection of meat and meat food

products. Section 903 of the Federal Agriculture Improvement and Reform Act of 1996

involves the regulation of commercial transportation of equine for slaughter. 9 C.F.R.

352.19 concerns ante-mortem inspections at establishments that slaughter horses.

CRS-13

the Act with respect to any employer of 10 or fewer employees who

is included within a category having a Days Away, Restricted, or

Transferred (DART) occupational injury and illness rate, at the most

precise industrial classification code for which such data are

published, less than the national average rate as such rates are most

recently published by the Secretary, acting through the Bureau of

Labor Statistics, in accordance with section 24 of the Act.”31

Some provisions in the Consolidated Appropriations Act for 2008 appeared

intended to have the opposite effect — i.e., forbidding the prohibition of regulatory

enforcement. For example, Section 606 within Division D of the legislation (funding

the Department of the Treasury and other agencies, 121 Stat. 2013) states: “None of

the funds made available by this Act shall be available for any activity or for paying

the salary of any Government employee where funding an activity or paying a salary

to a Government employee would result in a decision, determination, rule, regulation,

or policy that would prohibit the enforcement of section 307 of the Tariff Act of 1930

(19 U.S.C. 1307).”32

Conditional Restrictions. Another set of provisions in the Consolidated

Appropriations Act of 2008 makes the implementation of a particular rule or set of

rules conditional upon certain other actions by the agencies or Congress. For

example:

A provision within Division F of the legislation (121 Stat. 2137)

states: “None of the funds made available to the Indian Health

Service in this Act shall be used to implement the final rule

published in the Federal Register on September 16, 1987, by the

Department of Health and Human Services, relating to the eligibility

for the health care services of the Indian Health Service until the

Indian Health Service has submitted a budget request reflecting the

increased costs associated with the proposed final rule, and such

request has been included in an appropriations Act and enacted into

law.”

Section 110 within Division G of the legislation (funding the

Departments of Labor, Health and Human Services, and Education,

and related agencies, 121 Stat. 2168) states: “None of the funds

made available in this or any other Act shall be available to finalize

or implement any proposed regulation under the Workforce

Investment Act of 1998, Wagner-Peyser Act of 1933, or the Trade

Adjustment Assistance Reform Act of 2002 until such time as

The provision went on to provide certain exceptions (e.g., “to provide, as authorized by

the Act, consultation, technical assistance, educational and training services, and to conduct

surveys and studies”).

That section of the Tariff Act prohibits the importation of products produced in foreign

countries by convict or forced labor, including indentured child labor.

CRS-14

legislation reauthorizing the Workforce Investment Act of 1998 and

the Trade Adjustment Assistance Reform Act of 2002 is enacted.”33

Section 305 within Division G of the legislation (121 Stat. 2198)

states: “None of the funds made available in this Act may be used to

promulgate, implement, or enforce any revision to the regulations in

effect under section 496 of the Higher Education Act of 1965 on

June 1, 2007, until legislation specifically requiring such revision is

enacted.”

Regulatory Restrictions in Previous Appropriations Bills

A review of appropriations legislation that was enacted from FY1999 through

FY2007 indicated that many of the regulatory restrictions in the Consolidated

Appropriations Act for 2008 had appeared in one or more appropriations statutes in

previous years. Some were in relevant appropriations bills in all 10 years, some had

been in multiple years (but not all 10), and some were present in only one year.

Table 1, at the end of this report, shows which of the appropriations provisions

appeared in which fiscal years.

Provisions Repeated Every Year. Some of the provisions limiting agency

rulemaking or regulatory actions have appeared in one or more appropriations bills

in every year during this 10-year period.34 Those provisions included the following:

the provision in the District of Columbia appropriation prohibiting

the enactment or implementation of regulations that would legalize

or reduce penalties associated with certain substances under the

Controlled Substances or any tetrahydrocannabinols derivative;35

This provision also appeared in the Revised Continuing Appropriations Resolution, 2007

(P.L. 110-5, 121 Stat. 29).

The final continuing resolution for FY2007 (P.L. 110-5) did not include provisions

restricting regulatory actions, but Section 104 of the legislation (121 Stat. 9) stated that,

“Except as otherwise expressly provided in this division, the requirements, authorities,

conditions, limitations, and other provisions of the appropriations Acts referred to in section

101(a) shall continue in effect through the date specified in section 106.” Section 101(a)

lists nine FY2006 appropriations acts, and Section 106 states that the funds made available

were for the period ending September 30, 2007. All of the provisions in effect for FY2006

were in one of those nine appropriations acts. Therefore, unless otherwise indicated, this

report considers the requirements in those nine appropriations bills that were in effect in

FY2006 to also have been in effect for FY2007.

For more on this issue, see CRS Report RL33563, District of Columbia: Appropriations

for 2007, by Eugene Boyd and David P. Smole, pp. 14-15. This provision was originally

designed to counteract a District of Columbia initiative on medical marijuana, and has been

challenged in court several times. In 2007, the District of Columbia city council adopted

a resolution prohibiting the use of federal, but not District, funds from implementing the

initiative.

CRS-15

the prohibition on the issuance or enforcement of any OSHA rules

applicable to farming operations that do not maintain a temporary

labor camp and employ 10 or fewer employees;36

the provision prohibiting the promulgation of new aviation user fees

that are not specifically authorized by law;

the provision prohibiting the use of DOT funds to plan, finalize, or

implement rules that would change existing tire grading standards;

and

the prohibition on the use of funds appropriated to the Postal Service

to implement any rule that would charge State or local officers or

employees, or anyone in a child support enforcement program, a fee

for information concerning an address of a postal customer.

Multi-year Provisions. Other regulatory appropriations restrictions have

appeared in relevant appropriations bills for several years in a row, although not in

every year, during the 10-year period. For example:

the provision in the 2008 legislation prohibiting the finalization of

a July 2003 APHIS rule that proposed cost sharing for animal and

plan health emergency programs has been in all relevant

appropriations bills since FY2004;

the 2008 provision prohibiting the finalization of a September 2003

OPM proposed rule restricting the detail of executive branch

personnel to the legislative branch has been in all relevant

appropriations bills since FY2004;

the provision prohibiting the Federal Communications Commission

from changing its rules regarding universal service support payments

has been in all relevant appropriations bills since FY2005;

the prohibition on the development or finalization of a rule

determining that real estate brokerage activity is “financial in nature

or incidental to a financial activity” has been in all relevant

appropriations bills since FY2003;

the prohibition on the use of funds to issue regulations requiring

airport sponsors to provide free building construction, maintenance,

or space to the FAA for air traffic control, air navigation, or weather

reporting has been in all DOT-related appropriations bills since

FY2002;

This “farming rider” has been in appropriations legislation as far back as 1991. See, for

example, Title I of the Departments of Labor, Health and Human Services, and Education,

and Related Agencies Appropriations Act, 1992 (P.L. 102-170).

CRS-16

a provision was in EPA appropriations bills from FY2000 through

FY2003 stating that “none of the funds appropriated or otherwise

made available by this Act shall be used to promulgate a final

regulation to implement changes in the payment of pesticide

tolerance processing fees as proposed at 64 Fed. Reg. 31040, or any

similar proposals”;37

provisions were in relevant appropriations bills from at least FY1999

through FY2003 stating that “none of the funds in this Act shall be

available to plan, finalize, or implement regulations that would

establish a vessel traffic safety fairway less than five miles wide

between the Santa Barbara Traffic Separation Scheme and the San

Francisco Traffic Separation Scheme”;38

provisions were in multiple appropriations bills each year from at

least FY1999 through FY2001 prohibiting the use of funds to

implement the Kyoto Protocol (which is a protocol to the

international Framework Convention on Climate Change with the

objective of reducing greenhouse gases);39

provisions were added to appropriations bills relevant to DOT from

at least FY1999 through FY2001 preventing the Coast Guard from

planning, finalizing, or implementing any regulation that would

promulgate new maritime user fees that were not specifically and

subsequently authorized by law;40

as noted earlier in this report, for six years (FY1996 through

FY2001), DOT’s appropriations acts stated that none of the funds in

the act could be used to prepare, propose, or promulgate regulations

prescribing corporate average fuel economy, or “CAFÉ,” standards

for automobiles that differed from the standards promulgated prior

to the enactment of the legislation;41 and

In FY2003, the provision was in the Consolidated Appropriations Resolution, 2003 (P.L.

108-7, 117 Stat. 513).

In FY2003, the provision was in the Consolidated Appropriations Resolution, 2003 (P.L.

108-7, 117 Stat. 409).

For example, this provision was in several appropriations bills for FY2001, including P.L.

106-291 (related to the Department of the Interior, 114 Stat. 996); P.L 106-346 (related to

the Department of Transportation, 114 Stat. 1356A-33); Appendixes A and B of P.L.

106-377 (related to the Departments of Veterans Affairs and Housing and Urban

Development and Independent Agencies, 114 Stat. 1441A-41 and 114 Stat. 1441A-85); P.L.

106-387 (related to the Department of Agriculture, 114 Stat. 1549A-33); and Appendix A

of P.L. 106-429 (related to foreign operations, 114 Stat. 1900A-54).

In FY2001, this provision was in the Appendix of the Department of Transportation and

Related Agencies Appropriations Act, 2001 (P.L. 106-346, 114 Stat. 1356A-2).

In FY2001, this provision was in the Appendix of the Department of Transportation and

(continued...)

CRS-17

the appropriations bills relevant to the Department of Labor from

FY2005 through FY2008 prevented the Secretary of Labor from

taking any action to amend the current definition in 20 C.F.R.

667.220 for “functions and activities” under Title I of the Workforce

Investment Act of 1998.42

Single-Year Provisions. Several other provisions appeared only in the

Consolidated Appropriations Act for 2008, or in only one appropriation bill in the

previous nine years examined. In some cases, it is clear why the provisions have

appeared only once. For example, a provision prohibiting the use of funds to

implement a January 2007 proposed rule related to the national emission standards

for hazardous pollutants was only in the Consolidated Appropriations Act for 2008

(121 Stat. 2152) — the only appropriations legislation that has been enacted since the

rule was proposed.43

In other cases, some investigation reveals why the provisions have not been

repeated. For example, one provision appeared only in the Omnibus Consolidated

and Emergency Supplemental Appropriations Act, 1999 (P.L 105-277, 112 Stat.

2681-266), and said that “None of the funds made available in this or any other Act

may be expended before March 31, 1999 to publish final regulations based on the

regulations proposed at 63 Fed. Reg. 3289 on January 22, 1998.”44 Because the final

rule at issue was eventually published on April 12, 1999,45 and took effect on May

12, 1999, no additional appropriations restriction of this type was required.

Reasons for Regulatory Appropriations Restrictions

In some cases, the substantive reasons that prompted the inclusion of certain

appropriations restrictions seem apparent. For example, the Kyoto Protocol was

(...continued)

Related Agencies Appropriations Act, 2001 (P.L. 106-346, 114 Stat. 1356A-28).

In 2008, this provision was in the Consolidated Appropriations Act, 2008 (P.L. 110-161,

121 Stat. 2167). 20 C.F.R. 667.220 describes the permissible costs of administration under

Workforce Investment Act grants under Title I of the statute that are subject to

administrative cost limits.

The January 3, 2007, proposed rule at issue (published at 72 Federal Register 69) would

have amended the general provisions to the national emission standards for hazardous air

pollutants, replacing a policy that had been established in 1995.

U.S. Department of the Interior, Bureau of Indian Affairs, “Class III Gaming Procedures,”

63 Federal Register 3289, January 22, 1998. Class III gaming primarily includes slot

machines, casino games, banking card games, dog racing, horse racing, and lotteries. In the

proposed rule, the bureau said that the department had determined that “the Secretary may

promulgate Class III gaming procedures under certain specified circumstances,” and that the

rule “sets forth the process and standards pursuant to which any procedures would be

adopted.”

U.S. Department of the Interior, Bureau of Indian Affairs, “Class III Gaming Procedures,”

64 Federal Register 17535, April 12, 1999.

CRS-18

(and, to some extent, remains) highly controversial, with some in the business

community and elsewhere questioning its effectiveness in addressing climate change

and concluding that its adoption and implementation by the United States could

impose substantial cost and other burdens on regulated parties.46 Therefore,

provisions that were added to appropriations bills preventing the implementation of

the Kyoto Protocol appear to have been designed to address and respond to those

concerns. (Others, however, contend that the Kyoto Protocol would help address

climate change and would not be extremely costly to implement.)47 Likewise,

provisions that would prevent the adoption or implementation of airport user fees, or

prevent requirements that airport sponsors contribute buildings or other items to the

FAA free of charge, seem designed to prevent certain costs from being imposed on

certain groups.

The issues underlying other appropriations restrictions are less immediately

apparent, as many of the provisions have little or no legislative history. Where such

information is available, though, the reasons behind some of the provisions seem to

fall into several categories or types: economic concerns, end-of-administration rules,

and other reasons.

Economic Concerns

Several other appropriations restrictions appear to have been prompted by

concerns about the economic ramifications of regulations on affected parties.

Animal and Plant Health. For example, as noted previously, provisions in

appropriations bills from FY2004 through FY2008 prohibited the implementation of

a July 2003 proposed rule on cost sharing for animal and plant health emergency

programs. In that proposed rule, the Animal and Plant Health Inspection Service

(APHIS) noted that the cost to the federal government of detecting and eradicating

animal or plant pests or diseases had increased sharply, and the proposed regulation

would provide “a better defined, more consistent approach to cost sharing and the

allocation of financial responsibility among the Federal Government, State(s), and

other cooperators.”48 The regulation was opposed by certain interest groups (e.g., the

American Sheep Industry Association and the National Cattlemen’s Beef

Association), which sent letters to APHIS recommending that the rule not be made

See, for example, U.S. Chamber of Commerce, “Reality Check: Straight Talk About the

Kyoto Protocol,” available at [http://www.uschamber.com/publications/reports/

reality_check_kyoto.htm].

See, for example, Natural Resources Defense Council, “Bush Administration Errs on

Kyoto Global Warming Agreement,” at [http://www.nrdc.org/globalwarming/akyotoqa.asp].

U.S. Department of Agriculture, Animal and Plant Health Inspection Service, “CostSharing for Animal and Plant Health Emergency Programs,” 68 Federal Register 40541,

July 8, 2003. In this rule, APHIS said that the total amount of emergency funding provided

by the federal government had increased from $136 million in the FY1993 - FY1998 period

to $1,234 million in the FY1999 - FY2003 period.

CRS-19

final.49 On November 5, 2003, an amendment was added to the Department of

Agriculture’s appropriations bill prohibiting the use of funds to make the proposed

rule final. The rationale offered for the prohibition by the amendment’s sponsor was

that the rule would require state governments to provide matching funds for the

program, and that doing so could impose a hardship on states without sufficient funds

to provide the match.50 The language was subsequently included in the Consolidated

Appropriations Act, 2004 (P.L. 108-199, 118 Stat. 39, Sec. 761). On October 31,

2005, APHIS announced that it had withdrawn the proposed rule in August 2005.51

Nevertheless, Congress has continued to include language prohibiting the finalization

of the rule in each subsequent appropriations bill funding APHIS.

Real Estate Brokerage Activity. Provisions in appropriations bills since

FY2003 have prohibited the development or finalization of rules concluding that real

estate brokerage activity is “financial in nature or incidental to financial activity.”

The provision in the Consolidated Appropriations Act for 2008 specifically

referenced a January 2001 proposed rule that was jointly published by the Board of

Governors of the Federal Reserve System and the Department of the Treasury.52 That

proposed rule sought comment on whether to issue a final rule declaring that real

estate brokerage activity was, in fact, financial in nature, thereby allowing financial

holding companies and financial subsidiaries of national banks to engage in such

activity pursuant to the Gramm-Leach-Bliley Act (P.L. 106-102).53 According to

press accounts, realtors favored these appropriations restrictions and opposed the

expansion of real estate activities to banks.54 Non-appropriations legislation has been

To view a copy of the American Sheep Industry Association’s comments, see

[http://www.sheepusa.org/index.phtml?page=site/text&nav_id=ce39162b34e4b689b407

5adf5b559d08&ps_session=f652586ec6000ff9459bf3c04def5290]. To view a copy of

comments from the National Cattlemen’s Beef Association on this proposed rule, see

[http://www.beefusa.org/NEWSCattlemensCapitolConcernsNovember6200310921.aspx].

For example, the American Sheep Industry Association characterized the cost-sharing

proposal as “arbitrary” and “prescriptive,” and not “in the best interests of the agricultural

or public sector.” It also said “we believe that the federal cost associated with executing this

mission has been an excellent investment.”

Sen. Robert F. Bennett, et al., remarks in the Senate proposing Amendment No. 2096,

Congressional Record, vol. 149 (November 5, 2003), p. S14007.

See 70 Federal Register 64336, October 31, 2005.

U.S. Department of the Treasury and the Board of Governors of the Federal Reserve

System, “Bank Holding Companies and Change in Bank Control,” 66 Federal Register 307,

January 3, 2001.

The Gramm-Leach-Bliley Act amended the Bank Holding Company Act (12 U.S.C. §1841

et seq.) to allow a bank holding company or qualifying foreign bank to engage in a broad

range of activities that are financial in nature. The act also permitted financial holding

companies to engage in other activities that the board determines (in consultation with the

Secretary of the Treasury) to be financial in nature or incidental to a financial activity.

Todd Davenport, “OCC Caught in the Middle of Bank-Realtor Fight,” American Banker,

June 2, 2004.

CRS-20

introduced in each recent Congress related to this issue, but the only legislation to be

enacted has been the appropriations acts.55

Pesticide Tolerance Processing Fees. Appropriations provisions from

FY2000 through FY2003 prohibited EPA from finalizing a June 1999 proposed rule

that would have changed the fees charged for pesticide tolerance processing.56 In that

proposed rule, EPA said that a variety of factors had increased the costs associated

with tolerance processing well beyond the fees that were being charged, and that the

proposed fee increases would “make the tolerance processing system self-supporting”

and the financial burden “borne primarily by those constituencies who directly

benefit, rather than the taxpayer.”57 Although other, non-appropriations-related

legislation was introduced in the 107th Congress to prohibit EPA from issuing

regulations on this issue,58 the only such legislation that was enacted between

FY1999 and FY2004 were the restrictions in the various appropriations bills. In

January 2004, the Consolidated Appropriations Act of 2004 (P.L. 108-199, Title V

of Division G) amended the Federal Insecticide, Fungicide and Rodenticide Act

(FIFRA) and created a new registration service fee system for applications of

specified registration and tolerance actions. As required by FIFRA as amended, EPA

subsequently published regulations replicating a fee schedule that had been published

in the Congressional Record on September 17, 2003.59 The appropriations

restrictions have not appeared since the FIFRA amendments were enacted.

For example, in the 110th Congress, the “Community Choice in Real Estate Act” (H.R. 111

and S. 413) would have amended the Bank Holding Company Act to prohibit financial

holding companies and national banks from engaging in real estate brokerage or real estate

management activities. The legislation has not moved since being assigned to congressional

committees.

U.S. Environmental Protection Agency, “Pesticides: Tolerance Processing Fees,” 64

Federal Register 31040, June 8, 1999.

Ibid.

For example, in the 107th Congress, S. 1474 would have prohibited the issuance of

regulations making substantive changes to pesticide tolerance processing fees until the end

of FY2006. The proposed legislation was not enacted.

U.S. Environmental Protection Agency, “Pesticides: Fees and Decision Times for

Registration Applications,” 69 Federal Register 12771, March 17, 2004. See also U.S.

Environmental Protection Agency, “Pesticides; Revised Fee Schedule for Registration

Applications,” 70 Federal Register 32327, June 2, 2005. For more on this issue, see CRS

Report RL32218, Pesticide Registration and Tolerance Fees: An Overview, by Robert

Esworthy. The Pesticide Registration Improvement Renewal Act (P.L. 110-94), enacted

October 9, 2007, reauthorized and revised these fee provisions, which would have expired

at the end of FY2008. The act also prohibits EPA from collecting any tolerance fees under

the authority of Section 408(m) of the Federal Food, Drug, and Cosmetics Act (21 U.S.C.

346a(m)). In each fiscal year budget request since 2004, EPA has included proposals to

further increase pesticide fees beyond those authorized. These proposals were not adopted

by Congress in each year through FY2008. The FY2009 request included similar proposals.

CRS-21

End-of-Administration Rules

Several other provisions in appropriations acts during the past 10 years appear

to have been designed to slow down or prevent the issuance of certain rules issued

near the end of a presidential administration (sometimes referred to as “midnight”

rules), or to ensure the implementation of rules issued during that period.

Hardrock Mining. One such set of restrictions involved delays and

restrictions on the issuance of rules changing 43 C.F.R. 3809, which the Bureau of

Land Management (BLM) within the Department of the Interior said were designed

to “protect public lands from unnecessary or undue degradation and to ensure that

areas disturbed during the search for and extraction of mineral resources are

reclaimed.”60 In 1997, BLM amended these “3809” or “surface management”

regulations, but those rules were overturned by a federal court after being challenged

by an industry association.61 The 1998 Omnibus Consolidated and Emergency

Supplemental Appropriations Act (P.L. 105-277) required that BLM pay for a study

by the National Research Council (NRC) of the National Academies of Science on

the adequacy of requirements to prevent unnecessary or undue degradation of federal

lands in each state in which mining of locatable minerals occurs. That study (entitled

“Hardrock Mining on Federal Lands”) was to have been completed by July 31, 1999,

but was not published until late September 1999. Meanwhile, BLM published a

proposed rule in February 1999 to amend the 3809 regulations,62 but in the Omnibus

Consolidated Emergency Supplemental Appropriations Act, 1999 (P.L. 106-31, 112

Stat. 2681-258), Congress prohibited the Secretary of the Interior from issuing any

final rules on this issue until at least September 30, 1999. BLM reopened the

comment period on the proposed rule for 120 days in October 1999. Then, in the

FY2000 Omnibus Appropriations Act (P.L.106-113, 113 Stat. 1501A-210), Congress

prohibited the Secretary from using appropriated funds to issue final rules revising

43 C.F.R. 3809, but said such rules could be issued if they were “not inconsistent”

with the recommendations contained in the NRC report or with existing statutory

authorities. The same requirement was included in the Department of the Interior

and Related Agencies Appropriations Act, 2001 (P.L. 106-291, 114 Stat. 962),

which was enacted in October 2000. Shortly thereafter, in November 2000, BLM

published a final rule on this issue, stating that the requirements in the rule were, in

fact, “not inconsistent” with the NRC report, and making the rule effective on

January 20, 2001 — the last full day of the Clinton Administration.63 In December

2000 and January 2001, four lawsuits were filed by industry groups and others

U.S. Department of the Interior, Bureau of Land Management, “Mining Claims Under the

General Mining Laws; Surface Management; Final Rule,” 65 Federal Register 69998,

November 21, 2000.

See Northwest Mining Association v. Babbitt, No. 97-1013 (D.D.C. May 13, 1998).

U.S. Department of the Interior, Bureau of Land Management, “Mining Claims Under the

General Mining Laws; Surface Management; Proposed Rule,” 64 Federal Register 6422,

February 9, 1999.

U.S. Department of the Interior, Bureau of Land Management, “Mining Claims Under the

General Mining Laws; Surface Management; Final Rule,” 65 Federal Register 69998,

November 21, 2000.

CRS-22

asserting that BLM had improperly issued the rule. In February 2001, the governor

of Nevada requested that the Secretary of the Interior postpone the effective date and

implementation of the rule. In March 2001, BLM proposed suspending the

regulations, citing the need to review issues raised in the lawsuits and the governor’s

request.64 In May 2001, several Democratic Members of Congress reportedly said

that if the Bush Administration suspended the regulations they would stop the

suspension by adding a provision to the FY2002 DOI appropriation.65

Arsenic. Another Clinton Administration “midnight” rule that was addressed

by an appropriations restriction was an EPA rule regulating arsenic in drinking water.

A provision added to the FY2002 appropriations bill covering EPA stated that “none

of the funds appropriated by this Act may be used to delay the national primary

drinking water regulation for Arsenic published on January 22, 2001, in the Federal

of title 40 of the Code of Federal Regulations).”66 In that rule, EPA set a new

enforceable “Maximum Contaminant Level” for arsenic of 0.01 milligrams per liter

(or 10 parts per billion, down from 50 parts per billion in the previous standard), and

the rule was scheduled to take effect on March 23, 2001.67 However, on January 20,

2001 — two days before the rule was published, and on the first day of the Bush

Administration — Assistant to the President and Chief of Staff Andrew H. Card Jr.

sent a memorandum to the heads of all executive departments and agencies directing

them to (among other things) postpone for 60 days the effective date of all

regulations that had not yet taken effect.68 EPA initially delayed the effective date

of the rule until May 22, 2001, and later extended the effective date until February

2002 “to reassess the scientific and cost issues associated with this rule and to seek

further public input on each of these issues.”69 Also, in May 2001, OMB’s OIRA

asked for suggestions from the public on specific regulations that could be rescinded

U.S. Department of the Interior, Bureau of Land Management, “Mining Claims Under the

General Mining Laws; Surface Management,” 66 Federal Register 16162, March 23, 2001.

Pamela Najor, “Democrats Support Mining Regulations as Bush Considers Suspending

Clinton Rule,” BNA Daily Report for Executives, May 10, 2001, p. A-34. Ultimately, in

October 2001, the Bush Administration issued a final hardrock mining rule that retained

certain requirements in the 2000 rule, but dropped certain other requirements. Also in

October 2001, the Administration issued a proposed rule containing additional changes to

the hardrock mining regulations.

Departments of Veterans Affairs and Housing and Urban Development, and Independent

Agencies Appropriations Act, 2002 (P.L. 107-73, 115 Stat. 697).

The Safe Drinking Water Act Amendments of 1996 set a January 1, 2000, deadline for

EPA to publish a final rule, but Congress extended that deadline until June 22, 2001, in

language contained in the final conference report of the EPA spending bill for FY2001.

For more on this memorandum, see U.S. General Accounting Office, Regulatory Review:

Delay of Effective Dates of Final Rules Subject to the Administration’s January 20, 2001,

Memorandum (GAO-02-370R, February 15, 2002).

U.S. Environmental Protection Agency, “National Primary Drinking Water Regulations;

Arsenic and Clarifications to Compliance and New Source Contaminants Monitoring,” 66

Federal Register 20579, April 23, 2001.

CRS-23

or changed. One of the suggestions that OIRA received focused on the January 22,

2001, arsenic rule.

In September 2001, the National Academy of Sciences issued a report

concluding that even very low concentrations of arsenic were associated with a

higher incidence of cancer.70 At the end of October 2001, the EPA Administrator

announced that the 10-parts-per-billion standard for arsenic would remain.71

However, in a December 2001 report to Congress, OIRA characterized the suggested

elimination or revision of the arsenic rule as a “high priority” for future action,

indicating that it was “inclined to agree and look into the suggestion.” By that point,

though, Congress had added the provision to the EPA appropriations bill for FY2002

prohibiting the use of associated funds to delay the January 2001 rule any further.72

Snowmobiles. On December 18, 2000, the National Park Service within the

Department of the Interior published a proposed rule to phase out the use of

snowmobiles in Yellowstone National Park and other areas, with comments

requested by January 17, 2001.73 Three days later, on December 21, 2000, the

Consolidated Appropriations Act, 2001, was enacted, which said (Section 128 of

Appendix D) that “None of the funds provided in this or any other Act may be used

prior to July 31, 2001, to promulgate or enforce a final rule to reduce during the

2000-2001 or 2001-2002 winter seasons the use of snowmobiles below current use

patterns at a unit in the National Park System.” On January 22, 2001, the National

Park Service published a final rule that deleted certain provisions that had been in the

proposed rule “to avoid any questions about consistency with the recent statute.”74

Less than two weeks later, pursuant to the January 20, 2001, Card memorandum, the

National Park Service delayed the effective date of the rule from February 21, 2001,

until April 22, 2001. A series of court rulings and agency actions delayed many other

actions until December 2007, when NPS issued a final rule governing the use of

snowmobiles in the Yellowstone area parks.75

Hours of Service. A DOT rule that was published in the last year of the

Clinton Administration also became the subject of an appropriations limitation. In

May 2000, the Federal Motor Carrier Safety Administration (FMCSA) published a

proposed rule that would have changed its “hours of service” regulations to require

To view a copy of this report, see [http://books.nap.edu/catalog.php?record_id=10194].

“EPA Sets 10 PPB Arsenic Standard, Based on Best Science, Says Whitman,” BNA Daily

Report for Executives, November 1, 2001, p. A-46.

The legislation funding EPA (P.L. 107-73) was enacted on November 26, 2001.

U.S. Department of the Interior, National Park Service, “Special Regulations, Areas of the

National Park System,” 65 Federal Register 79024, December 18, 2000.

U.S. Department of the Interior, National Park Service, “Special Regulations, Areas of the

National Park System,”66 Federal Register 7260, January 22, 2001.

U.S. Department of the Interior, National Park Service, “Special Regulations; Areas of the

National Park System,” 72 Federal Register 70781, December 13, 2007. The preamble to

this rule contains a history of actions relative to this issue during the previous seven years.

CRS-24

certain motor carriers to provide drivers with better opportunities to obtain sleep.76

Comments were initially due by July 31, 2000, but FMSCA later extended the

comment period to October 31, 2000, and later to December 15, 2000. Meanwhile,

on October 23, 2000, Congress enacted the Department of Transportation and

Related Agencies Appropriations, 2001 (P.L. 106-346), one provision of which

prohibited FMCSA from making the proposed rule final.77 In March 2001, separate

legislation was introduced to prohibit the rule from becoming final (H.R. 1008, 107th

Congress), but that legislation was not enacted. However, later that year, a provision

was added to the Department of Transportation and Related Agencies Appropriations

Act, 2002 (P.L. 107-87, 115 Stat. 870) stating the “sense of Congress” that DOT

should not change current requirements until certain conditions were met.78 FMSCA

ultimately published a final rule on this issue on April 28, 2003, reflecting “careful

consideration of the concerns expressed by Members of Congress as well as the more

than 53,000 comments to the docket.”79

Other Reasons for Regulatory Appropriations Restrictions

Other provisions prohibiting certain rulemaking or regulatory actions appear to

have been added to appropriations bills for other reasons.

Tire Grading Standards. As noted earlier in this report, in each of the last

10 appropriations bills covering DOT, a provision has been included prohibiting the

use of appropriated funds to “plan, finalize, or implement any rulemaking to add to

section 575.104 of title 49 of the Code of Federal Regulations any requirement

pertaining to a grading standard that is different from the three grading standards

(treadwear, traction, and temperature resistance) already in effect.” The House

Appropriations Committee Print for the Consolidated Appropriations Act, 2008

states that this provision has been included in all relevant appropriations bills since

1996, but does not indicate why the provision was included.80 The Senate Committee

on Appropriations report for the Department of Transportation and Related Agencies

Appropriations Bill, 1999, stated that the prohibition would “prohibit any rulemaking

that would require that passenger car tires be labeled to indicate their low rolling

U.S. Department of Transportation, Federal Motor Carrier Safety Administration, “Hour

of Service of Drivers; Driver Rest and Sleep for Safe Operations; Proposed Rule,” 65

Federal Register 25539, May 2, 2000.

114 Stat. 1356A-30.

One of the conditions was that the Secretary of Transportation determine by rulemaking

proceedings that the exemptions granted previously in statute “are not in the public interest

and adversely affect the safety of commercial motor vehicles.” The Secretary was also

required to monitor the safety performance of drivers of commercial motor vehicles who are

subject to the exemption and report to Congress prior to the rulemaking proceedings.

U.S. Department of Transportation, Federal Motor Carrier Safety Administration, “Hour

of Service of Drivers; Driver Rest and Sleep for Safe Operations; Final Rule,” 68 Federal

House Appropriations Committee Print, Consolidated Appropriations Act, 2008 (H.R.

2764; P.L. 110-161), Division K — Transportation, Housing and Urban Development, and

Related Agencies Appropriations Act, 2008, pp. 2363-2364.

CRS-25

resistance, or fuel economy characteristics,” and that the committee included the

provision “because the need for such labels has not been adequately justified and the

additional costs associated with this proposal would likely be prohibitive.”81

Legislative Branch Details. Provisions have been added to relevant

appropriations bills each year since FY2004 to prevent the finalization of an OPM

proposed rule that was published in September 2003. Among other things, the

proposed regulation would have prohibited any executive agency from detailing or

otherwise assigning an employee to the legislative branch without the approval of the

OPM Director. The proposed rule stated that the OPM Director was allowed approve

such details only if doing so would not disclose “information within the

constitutional authority of the Executive to withhold” because disclosure would

impair (among other things) “the performance of the Executive’s constitutional

duties.”82 The appropriation provision prohibiting the finalization of the rule first

appeared in the Consolidated Appropriations Act, 2004 (P.L. 108-199, 118 Stat. 360,

Sec. 646). In a January 23, 2004, signing statement on this legislation, the President

said that he would interpret that section “in a manner consistent with the President’s

constitutional authority to supervise the unitary executive branch.” To date, however,

OPM has not published a final rule on this issue. This conflict appears to be an

example of a long-standing point of contention between the President and Congress

regarding Congress’ authority to obtain information from the executive branch.83

U.S. Congress, Senate Committee on Appropriations, Department of Transportation and

Related Agencies Appropriations Bill, committee print, 105th Cong., 2nd sess., June 15, 1998,

S.Rept. 105-249 (Washington: GPO, 1998), p. 104. However, in 2006, the National

Research Council of the National Academies of Science reported that information on rolling

resistance should be made available to the public, and that Congress should provide NHTSA

with resources to allow it to gather and report information on the influence of passenger tires

on vehicle fuel consumption. The report also stated (on pp. 3-4) that “consumers now have

little, if any, practical way of assessing how tire choices can affect vehicle economy”; a 10%

reduction in rolling resistance is “technically and economically feasible”; and that such a

reduction could “save about 1 billion to 2 billion gallons of fuel per year”. See National

Research Council, Tires and Passenger Vehicle Fuel Economy: Informing Consumers,

Improving Performance, Transportation Research Board Special Report 286, 2006, available

at [http://onlinepubs.trb.org/Onlinepubs/sr/sr286.pdf]. Nevertheless, since 2006, Congress

has continued to prohibit regulatory changes to the tire grading standards. Section 111 of

the Energy Independence and Security Act of 2007 (P.L. 110-140, 121 Stat. 1506) requires

the Secretary of Transportation to issue rules establishing a “national tire fuel efficiency

consumer information program,” but specifically prohibits the Secretary from requiring

“permanent labeling of any kind on a tire for the purpose of tire fuel efficiency information.”

Legislation has been introduced in the Senate during the 110th Congress (S. 298) that would,

among other things, require that all passenger automobile tires sold in the United States meet

low rolling resistance standards prescribed by the administrator of NHTSA. The legislation

has not moved since being referred to the Senate Committee on Finance in January 2007.

U.S. Office of Personnel Management, “Employment (General),” 68 Federal Register

53054, September 9, 2003.

See, for example, Jack L. Goldsmith, III, “Authority of Agency officials to Prohibit

Employees from Providing Information to Congress,” Letter Opinion for the General

Counsel, Department of Health and Human Services, available at

[http://www.usdoj.gov/olc/crsmemoresponsese.htm].

CRS-26

Vessel Traffic. The FY1999 through FY2003 prohibition on the development

or implementation of rules changing the size of the vessel traffic safety fairway

between Santa Barbara and San Francisco appears to have been put in place because

of safety and environmental concerns. According to the House Appropriations

Committee report on DOT’s appropriation for FY2003 (H.Rept. 107-772), the

provision was added in response to an April 27, 1989, proposed rule that “would

narrow the originally proposed five-mile-wide fairway to two one-mile-wide fairways

separated by a two-mile-wide area where offshore oil rigs could be built if Lease Sale

119 goes forward. Under this revised proposal, vessels would be routed in close

proximity to oil rigs because the two-mile-wide non-fairway corridor could contain

drilling rigs at the edge of the fairways. The Committee is concerned that this rule,

if implemented, could increase the threat of offshore oil accidents off the California

coast. Accordingly, the bill continues the language prohibiting the implementation

of this regulation.”

Fairness Doctrine. The FY2008 prohibition on the FCC’s use of funds to

implement the agency’s “Fairness Doctrine” (which had required broadcasters to air

both sides of controversial issues, and was repealed by the FCC in 1985) was

reportedly based on concerns that the doctrine could be revived, and that doing so

would inhibit current political expression over commercial airways. Others, however,

said there was no indication that the FCC or Congress intended to revive the doctrine,

and that the appropriations provision was unnecessary.84

Ending Regulatory Appropriation Restrictions

In some cases, the regulatory limitations that have been added to appropriations

bills during the past 10 years appear to have ended because the underlying concern

was temporal in nature. For example, one provision that was in appropriations bills

for FY2001 and FY2002 prohibited the use of funds to issue a certain type of

proposed rule “for which the comment period would close prior to September 30,

2002.” Therefore, after FY2002, the provision was no longer needed. Another

provision that appeared only in an FY1999 appropriations bill prohibited the use of

funds to implement amendments to federal milk marketing orders unless the

implementation took place before October 1, 1999 — the end of FY1999.

In other cases, appropriations restrictions appear to have ended because of

changes in the political environment. Citing a Defenders of Wildlife report that there

was a significant decrease in the number of “anti-environmental riders” between the

1998 to 2000 period and 2001, one observer said that this development was not

surprising given that “so many of the riders in the late 1990s resulted from policy

conflicts between the Republican leadership in Congress and the Clinton

Administration.”85 As noted previously, several of the regulatory restrictions were

Alexander Bolton, “Fairness Doctrine Hammered 309-115,” The Hill, June 28, 2007.

Cheryl Bolen, “FCC Spending Bill Would Prohibit Revival of Defunct Fairness Doctrine,”

BNA Daily Report for Executives, June 29, 2007, p. A-24.

Richard J. Lazarus, “Congressional Descent,” pp. 646-647. According to the Defenders

of Wildlife study, the number of such provisions fell an average of nearly 50 per year

(continued...)

CRS-27

added to multiple appropriations measures for several years at the end of the Clinton

Administration preventing the development or issuance of regulations implementing

the Kyoto Protocols on global warming. Beginning in FY2002, however, those

restrictions no longer appeared in any of the appropriations bills, perhaps because the

new Bush Administration had publicly announced its opposition to the Kyoto

Protocols, thereby making the development of regulations implementing its

requirements unlikely.86

Other regulatory appropriations restrictions have continued even though the

original reasons for their enactments appear to have disappeared. As noted

previously, even though APHIS announced that it had withdrawn a proposed rule on

cost sharing for animal and plant health emergency programs in August 2005,

Congress has continued to prohibit finalizing the proposed rule.

The Scope and Effect of Regulatory

Appropriations Restrictions

The regulatory restrictions in appropriations bills that have been enacted during

the last 10 years illustrate that Congress can have a substantial effect on agency

rulemaking and regulatory activity beyond the introduction of joint resolutions of

disapproval pursuant to the Congressional Review Act. These appropriations

provisions can prevent an agency from developing a proposed rule, from making a

proposed rule final, or from implementing or enforcing a final rule. However, unlike

joint resolutions of disapproval under the Congressional Review Act, these

appropriations provisions cannot nullify an existing regulation (i.e., remove it from

the Code of Federal Regulations) or permanently prevent the agency from issuing the

same or similar regulations. Therefore, any final rule that has taken effect and been

codified in the Code of Federal Regulations will continue to be binding law — even

if language in the relevant regulatory agency’s appropriations act prohibits the use of

funds to enforce the rule. Regulated entities are still required to adhere to applicable

requirements (e.g., installation of pollution control devices, submission of relevant

paperwork), even if violations are unlikely to be detected and enforcement actions

cannot be taken by federal agencies.

Also, unless otherwise indicated, regulatory restrictions in appropriations acts

are binding only for the period of time covered by the legislation (i.e., a fiscal year

(...continued)

between 1998 and 2000 to 23 in 2001.

For example, at a March 21, 2001, press conference, the White House press secretary said

“The President has been unequivocal. He does not support the Kyoto treaty. It exempts the

developing nations around the world, and it is not in the United States’ economic best

interest.” [http://www.whitehouse.gov/news/briefings/20010328.html#KyotoTreaty] See

also William H. Glaze, “Kyoto is dead,” Environmental Science & Technology, vol. 35

(May 1, 2001), p. A177, in which EPA Administrator Christine Whitman was quoted as

saying that the “Kyoto Protocol was dead as far as the administration was concerned.”

CRS-28

or a portion of a fiscal year).87 Therefore, any restriction that is not repeated in the

next relevant appropriations act or enacted in other legislation is no longer binding

on the relevant agency or agencies. This may explain why some of the provisions in

the Consolidated Appropriations Act for 2008 had been in all previous appropriations

measures since FY1999. On the other hand, some appropriations provisions are

worded in such a way that they have essentially become permanent or multi-year

requirements. For example, the provision in the Consolidated Appropriations Act,

2001 requiring OMB to publish a report on the costs and benefits of regulations

stated that the report was to be produced that year “and each year thereafter.”88 Also,

the Consolidated Appropriations Act, 2008 (121 Stat. 2015) prohibits the issuance

of any rule indicating that real estate brokerage activity is financial in nature “for

fiscal years 2008 and 2009.”

Most of the regulatory restrictions are in appropriations bills providing funds for

particular agencies or groups of agencies. Therefore, the prohibitions are generally

applicable only to the agencies funded by that appropriations measure. However,

some of the regulatory prohibitions are in the “General Provisions — Governmentwide” section of one of the appropriations measures (for FY2008, Title VII of the

Financial Services and General Government Appropriations Act), and are therefore

applicable to virtually all federal agencies. For example, the provision in Section 735

of the Consolidated Appropriations Act of 2008 that prohibited the use of funds to

implement a proposed rule on temporary details of staff to the legislative branch was

in the “General Provisions — Government-wide” section of the act.89 Other

provisions are worded in such a way that their effects are broader than the agencies

funded by those particular appropriations bills (e.g., those that prohibit the use of

funds in “this or any other Act” to publish or implement regulations.)90

See U.S. General Accounting Office, Principles of Appropriations Law, Third Edition,

Volume I, GAO-04-261SP, (January 2004), p. 2-34, which states that “Since an

appropriation act is made for a particular fiscal year, the starting presumption is that

everything contained in the act is effective only for the fiscal year covered. Thus, the rule

is: A provision contained in an annual appropriation act is not to be construed to be

permanent legislation unless the language used therein or the nature of the provision makes

it clear that Congress intended it to be permanent.”

Section 624 of the Treasury and General Government Appropriations Act of 2001 (P.L.

106-554, 31 U.S.C. §1105 note). GAO and the courts have concluded that these types of

construction make appropriations provisions permanent law. See, for example, U.S.

Government Accountability Office, Bureau of Alcohol, Tobacco, Firearms, and Explosives

— Prohibition in the 2008 Consolidated Appropriations Act, B-316510 (July 15, 2008).

There, GAO said (on page 3), that “the clearest indication that Congress intended a

provision to be permanent is the presence in the provision of ‘words of futurity’ clearly

indicating such intent.” GAO noted that the U.S. Court of Appeals for the Second Circuit

concluded that the phrase “and each fiscal year thereafter” represented “unambiguous

language of permanence.” Auburn Housing Authority v. Martinez, 277 F.3d 138, 146 (2nd

Cir. 2002).

Although these general provisions are applicable government-wide, they are often written

in such a way that, in practice, only certain agencies are actually affected (in this case,

OPM).

See U.S. General Accounting Office, Principles of Appropriations Law, p. 2-33, which

(continued...)

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On the other hand, some of the appropriations provisions restricting regulatory

actions may not be as restrictive as they initially appear. Some federal regulatory

agencies derive a substantial amount of their operating funds from sources other than

congressional appropriations (e.g., user fees), and the use of those funds to develop,

implement, or enforce rules may not be legally constrained by language preventing

the use of appropriated funds.91 Also, some federal regulations (e.g., many of those

issued by EPA and OSHA) are primarily implemented or enforced by state or local

governments, and those governments may have sources of funding that are

independent of the federal funds that are restricted by the appropriations provisions.

Some state or local governments may also have their own statutory and regulatory

requirements that are the same as or similar to the federal rules at issue, or may even

go beyond federal standards.92 If state or local funds or legal authorities are used to

develop, implement, or enforce regulations, those actions would not appear to be

constrained by statutory provisions limiting the use of federal funds to restrict action

on particular federal laws and regulations.93

Agencies may also find ways around provisions prohibiting the use of

appropriated funds for rulemaking or other regulatory actions. For example, if an

agency is not permitted to use its appropriation to issue a formal rule on a particular

issue, it might attempt to achieve the end result through other means (e.g., a guidance

document that, while technically not having a binding effect, may be granted great

deference by affected parties).94 More generally, if Congress restricts one agency or

group of agencies from issuing a rule on a particular topic, another agency with

similar or overlapping statutory authority may be assigned that responsibility. For

(...continued)

says that a general provision “may apply solely to the act in which it is contained (‘No part

of any appropriation contained in this Act shall be used ...’), or it may have general

applicability (‘No part of any appropriation contained in this or any other Act shall be used

...’).”

Others, however, take the view that even these non-appropriated funds must be at least

figuratively deposited into the Treasury, and that “all spending in the name of the United

States must be pursuant to legislative appropriation.” Kate Stith, “Congress’ Power of the

Purse,” The Yale Law Journal, vol. 97 (1988), p. 1345.

For example, under the Occupational Safety and Health Act, states may set standards for

hazards such as ergonomic injury for which no federal standard has been established. See

U.S. General Accounting Office, Regulatory Programs: Balancing Federal and State

Responsibilities for Standard Setting and Implementation, GAO-02-495, March 2002.

See U.S. Government Accountability Office, Principles of Federal Appropriations Law,

Third Edition, Volume II, GAO-06-382, February 2006, which says that, unless stated

otherwise, expenditures by recipients of federal grants “are not subject to all the same

restrictions and limitations imposed on direct expenditures by the federal government. For

this reason, grant funds in the hands of a grantee have been said to largely lose their

character and identity as federal funds.”

See Office of Management and Budget, “Final Bulletin for Agency Good Guidance

Practices,” 72 Federal Register 3432, January 25, 2007. OMB issued bulletin, in part,

because of concerns that agencies were treating guidance documents as binding rules.

Nevertheless, as OMB points out, guidance documents can have significant effects on

regulated entities.

CRS-30

example, in 1986, the House Appropriations Committee voted to cut off funding for

OMB’s OIRA on grounds that the office’s review amounted to “second-guessing”

congressional delegations of rulemaking authority to federal agencies.95 In response,

then-OMB Director James C. Miller III said that, if funds were cut off for OIRA, “we

will do it in the White House. If [you take] the office out of the White House, we

will do it in the Justice Department. If you take the office out of the Justice

Department, we will do it in Commerce. This is a matter of the president’s

constitutional power and authority.”96

Also, as this example suggests, it is unclear how these kinds of congressional

appropriations restrictions on regulatory agencies will be viewed and implemented

by the President. For example, in 2006, President Bush said the provision prohibiting

OMB from reviewing agricultural marketing orders “should be deleted as

inconsistent with the President’s constitutional authority to supervise the unitary

executive branch.”97 More recently, in his December 26, 2007, signing statement on

the Consolidated Appropriations Act for 2008, President Bush said the act “contains

certain provisions similar to those found in prior appropriations bills passed by the

Congress that might be construed to be inconsistent with my Constitutional

responsibilities. To avoid such potential infirmities, the executive branch will

interpret and construe such provisions in the same manner as I have previously stated

in regard to similar provisions.”98 The Bush Administration has also objected to

these kinds of provisions in proposed appropriations legislation.99 If the President

Judith Havemann, “‘Defunding’ OMB’s Rule Reviewers,” Washington Post, July 18,

1986, p. A17. See also, Judith Havemann, “Lawmakers Want to Dethrone OMB Rule

Reviewers,” Washington Post, May 22, 1986, p. A17; Judith Havemann, “No ‘ShadeDrawn’ Dealings for OMB,” Washington Post, June 17, 1986, p. A21; and Judith

Havemann, “House Moves to Wipe Out OMB Unit,” Washington Post, July 31, 1986, p.

A23.

Ibid. Ultimately, an agreement was reached to fund OIRA, but only after OMB agreed to

institute new procedures to make OIRA’s review process more transparent.

“Statement of Administration Policy, H.R. 5576 — Transportation, Treasury, Housing,

the Judiciary, and the District of Columbia Appropriations Bill, FY2007,” June 14, 2006,

available at [http://www.whitehouse.gov/omb/legislative/sap/109-2/hr5576sap-h.pdf].

To view a copy of this signing statement, see [http://www.whitehouse.gov/news/releases/

2007/12/20071226-1.html]. For more information on signing statements, see CRS Report

RL33667, Presidential Signing Statements: Constitutional and Institutional Implications,

by T.J. Halstead. For information on how signing statements have been implemented, see

U.S. Government Accountability Office, Presidential Signing Statements Accompanying the

Fiscal Year 2006 Appropriations Acts, B-308603, June 18, 2007; and U.S. Government

Accountability Office, Presidential Signing Statements — Agency Implementation of Ten

Provisions of Law, B-309928, December 20, 2007.

See, for example, U.S. Office of Management and Budget, Executive Office of the

President, “Statement of Administration Policy: H.R. 3043 — Departments of Labor, Health

and Human Services, and Education, and Related Agencies Appropriation Act, 2008,” July

17, 2008, in which the Administration said it “opposes the prevention of regulations to

improve the Workforce Investment Act and Trade Adjustment Assistance (TAA) programs.”

The provision at issue was ultimately enacted as part of the Consolidated Appropriations

(continued...)

CRS-31

views restrictions on agencies’ rulemaking and regulatory authorities as

unconstitutional infringements on his ability to manage the executive branch, the

agencies might be directed to ignore the restrictions in the appropriations act. (To

date, however, CRS is not aware of any such instructions.) On the other hand,

because all agency regulations are based on some type of statutory rulemaking

authority, Congress may view any failure to adhere to the appropriations restrictions

as equally unconstitutional.100 In this situation, federal courts may have to decide

whether the appropriations provisions are binding on the agencies.

Support for and Concerns Regarding

Appropriations Restrictions

Article I, Section 9 of the Constitution states that “no money shall be drawn

from the Treasury but in consequence of appropriations made by law.” Kate Stith,

writing in the Yale Law Journal, said that the “appropriations” required by the

Constitution “are not only legislative specifications of money amounts, but also

legislative specifications of the powers, activities, and purposes — what we may call,

simply, ‘objects’ — for which appropriated funds may be used.”101 She takes the

view that Congress has not only the right, but “a constitutional duty to limit the

amount and durations of each grant of spending authority,” and that the historical

concept of appropriations as adopted by the colonies “encompassed dual limitations

on both amount and object.”102 Stith also said that when Congress denies

appropriations for a particular activity,

the denial is not merely a determination that the public fisc cannot afford

spending any money on that activity. By such appropriations legislation,

Congress decides that, under our constitutional scheme, for the duration of the

appropriations denial, the specific activity is no longer within the realm of

authorized government actions.103

Other authors have also asserted that, since Article I, Section 9 of the Constitution

specifically mentions appropriations as a congressional responsibility, appropriations

(...continued)

Act of 2008 (P.L. 110-161, 121 Stat. 2168).

100

For more on the perspective of federal rulemaking agencies as extensions of Congress,

and regulations as extensions of legislative activity, see David H. Rosenbloom, Building a

Legislative-Centered Public Administration: Congress and the Administrative State, 19461999 (Tuscaloosa, AL: The University of Alabama Press, 2000).

101

Kate Stith, “Congress’ Power of the Purse,” The Yale Law Journal, vol. 97 (1988), p.

1352.

102

Ibid., p. 1343, 1353.

103

Ibid., p. 1361.

CRS-32

provisions that change or repeal statutory provisions “ought to be looked at especially

charitably.”104

Other observers, however, have expressed concerns about Congress’ use of

certain restrictions in appropriations bills. For example, Jacques B. LeBoeuf

concluded that Congress “may not interfere with the Executive’s ability to execute

the law. Appropriations riders that attempt to influence executive discretion in the

area of law enforcement prevent the executive branch from carrying out its

constitutionally mandated activities.”105 LeBoeuf also said that the “President should

refuse to abide by funding limitations he or she considers to be unconstitutional,”106

and some Presidents have lodged these kinds of objections. For example, President

Reagan, in a signing statement on a limitation provision in the Supplemental

Appropriations Act of 1987, said the following:

Article II of the Constitution assigns responsibility for executing the law to the

President. While Congress is empowered to enact new or different laws, it may

not indirectly interpret and implement existing laws, which is an essential

function allocated by the Constitution to the executive branch. If the Congress

disagrees with a statutory interpretation advanced by the executive branch ... the

Congress may, of course, amend the underlying statute. The use of an

appropriations bill for this purpose, however, is inconsistent with the

constitutional scheme of separation of powers.107

As noted previously, President Bush has similarly objected to appropriations

provisions as inappropriately limiting his authority.108 Others have also raised

questions about the constitutionality of certain types of appropriations provisions.109

104

Matthew D. McCubbins and Daniel B. Rodriguez, “Canonical Construction and Statutory

Revisionism: The Strange Case of the Appropriations Canon,” Journal of Contemporary

Legal Issues, vol. 14 (2005), pp. 669-715.

105

Jacques B. LeBoeuf, “Limitations on the Use of Appropriations Riders by Congress to

Effectuate Substantive Policy Changes,” Hastings Constitutional Law Quarterly, vol. 19

(Winter 1992), p. 493.

106

Ibid.

107

Statement on signing H.R. 1827 into law, 23 Weekly Comp. Pres. Doc. 800 (July 11,

1987).

108

For example, in his signing statement regarding the Consolidated Appropriations Act of

2008, available at [http://www.whitehouse.gov/news/releases/2007/12/20071226-1.html].

See also, [http://www.whitehouse.gov/omb/legislative/sap/109-2/hr5576sap-h.pdf] for

“Statement of Administration Policy, H.R. 5576 — Transportation, Treasury, Housing, the

Judiciary, and the District of Columbia Appropriations Bill, FY2007,” June 14, 2006.

109

See, for example, J. Gregory Sidak, “How Congress Erodes the Power of the Presidency

— Appropriations Muzzle,” Wall Street Journal, Feb. 6, 1989, p. 1, who asserts that

provisions like the prohibition on OMB review of agricultural marketing orders

unconstitutionally inhibits the President’s responsibility in Article II, Section 3, to

“recommend” to Congress “such Measures as he shall judge necessary and expedient.” By

prohibiting the OMB to review marketing orders, Sidak argues, Congress is inhibiting the

President’s ability to carry out this recommendation function.

CRS-33

Neal Devins characterized appropriations restrictions as “the constitutional

equivalent of authorizations,” but he also said that the addition of such provisions

while on the House or Senate floor was “troublesome” and that “the appropriations

process may not be conducive to sound substantive policymaking for a variety of

institutional reasons,” including the prevention of authorizing committees from

applying their expertise.110 Devins said that such provisions “may strain the

effectiveness of other branches of government” and “are symptomatic of Congress’s

inability to enact authorizing legislation.”111 He also said that appropriations

provisions prohibiting agencies from launching regulatory initiatives without

changing the underlying authorizations “unduly limit the Executive’s policymaking

responsibilities,” may result in a “confusing patchwork” of enforcement schemes, and

are viewed by some as an unconstitutional violation of separation of powers.112 He

concluded that, “while Congress’s use of limitation riders is sometimes necessary,

Congress should be aware of the significant risks associated with policymaking

through the appropriations process.”

A somewhat different perspective on the constitutionality of appropriations

restrictions on executive action was offered by Peter Raven-Hansen and William C.

Banks in the context of the President’s authority regarding national security.113 The

authors took a position between the advocates of unlimited congressional and

presidential power, but ultimately asserting that narrowly constructed appropriations

restrictions are appropriate.

Contrary to ritualistic incantations by proponents of congressional power, the

power of the purse is not plenary in national security law. It is always qualified

by the commands of the Constitution and cannot be used to achieve ends that

Congress could not constitutionally achieve by other means. But it is also not a

“merely procedural” power that makes an appropriation restriction somehow less

than “substantive” law. A properly enacted national security appropriation has

the same force and effect as any other statute. Nor is its effect diluted by the

truncated legislative process by which it is sometimes enacted ... . [T]he

restrictive appropriation will rarely trespass on national security functions

assigned to the President by explicit constitutional text because so few functions

are. Most national security functions are shared. It is therefore as inaccurate to

invoke the “plenary” war and foreign affairs powers of the President to challenge

restrictive appropriations as it is to invoke the “plenary” power of the purse to

defend them. Instead, to determine the constitutionality of a restrictive national

security appropriation, we must weigh the extent to which the restriction prevents

the President from accomplishing his constitutionally assigned functions against

110

Neal E. Devins, “Regulation of Government Agencies Through Limitation Riders,” Duke

Law Journal, vol. 1987 (June 1987), pp. 456-500.

111

Ibid., pp. 458-459.

112

Ibid., p. 472. See also Archie Parnell, The Yale Law Journal, vol. 89 (June 1980), pp.

1360-1394, where the author says (p. 1379) that “If the power to execute the laws means

anything, it is that neither Congress nor individual congressmen may interfere with the

executive decisions of administrative agencies as to how they interpret laws already in

force.”

113

Peter Raven-Hansen and William C. Banks, “Pulling the Purse Strings of the Commander

in Chief,” Virginia Law Review, vol. 80 (May 1994), pp. 833-944.

CRS-34

the need for the restriction to promote objectives within the authority of

Congress. In this weighing, the special history of the power of the purse in

national security often tips the sales in favor of its expertise.

The Supreme Court has not ruled on the specific issue of whether appropriations

provisions limiting executive agencies’ regulatory discretion represent an

unconstitutional intrusion into the President’s authority. However, the Court has said

that, while implicit appropriations limitations on authorizing legislation are

questionable,114 “Congress ... may amend substantive law in an appropriations statute,

as long as it does so clearly.”115

Appropriations Restrictions and Rulemaking

Some observers and interest groups have specifically advocated the use of

appropriations provisions to stop rulemaking activity. For example, John Shanahan

and Mark Wilson of the Heritage Foundation described several spending restrictions

in 1995 appropriations legislation for EPA and the Department of Labor (e.g.,

restricting implementation of the Delaney Clause, wetlands permitting requirements,

and an ergonomics standard), and said the following:

While permanent labor and environmental policy reform should be pursued,

many of the problems addressed by the House appropriations riders are so

egregious that immediate relief should be granted. While these riders are an

imperfect solution, Americans should view them as necessary to encourage

recalcitrant federal agencies to work with Congress to reform some of the

nation’s most burdensome regulatory statutes.116

Others, however, have expressed concerns about these kinds of provisions from

both a procedural and a public policy standpoint. For example, in a 2005 article

entitled “Regulatory Underkill,” William W. Buzbee of the Center for Progressive

Reform said the following:

During the past decade, use of legislative riders has become another particularly

popular and low-visibility means of derailing programs. Such riders are typically

not freestanding bills that are subject to the congressional committee process,

openly debated, and visible for all to see. Instead, they commonly appear without

114

Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978). In this case, the Tennessee

Valley Authority asserted that Congress implicitly exempted actions related to the

construction of the Tellico Dam project from the scope of the Endangered Species Act

because it continued to appropriate funds for the construction of the dam.

115

Robertson v. Seattle Audubon Society, 503 U.S. 429 (1992). See also U.S. General

Accounting Office, Principles of Federal Appropriations Law, p. 2-32.

116

John Shanahan and Mark Wilson, “Using Appropriations Riders to Curb Regulatory

Excess,” Heritage Issue Bulletin No. 218, October 16, 1995, available at

[http://author.heritage.org/Research/Regulation/IB218.cfm]. According to its website, the

Heritage Foundation’s mission is “to formulate and promote conservative public policies

based on the principles of free enterprise, limited government, individual freedom,

traditional American values, and a strong national defense.”

CRS-35

announcement or even an open legislative sponsor. Riders are appended to other

bills, often large spending appropriations bills that have broad support and reflect

hundreds of fiercely negotiated bargains. Some riders enact provisions that could

not pass as free-standing legislation.... Other riders bar the use of appropriations

to implement controversial policies. These “carve-outs” effectively render such

policies a nullity for certain periods or in certain areas. Because these riders do

not involve a frontal attack on a popular law, and their advocates may remain

unknown, the public seldom knows of these proposals in time to mount an

effective opposition.117

The Future

Congress’ use of regulatory appropriations restrictions has fluctuated somewhat

over time, and previous experience suggests that they may be somewhat less frequent

when Congress and the President are of the same party. However, the use of such

provisions has not been confined to one political party or one set of interest groups.

As Richard Lazarus pointed out in 2006:

No one political party and no particular ideology have been more likely to

promote or to reject the use of appropriations riders. All appear to have willingly

embraced the strategy when it has served their purposes, whether Republicans

or Democrats, liberals or conservatives. Each has condemned the other for doing

the same. The precise identity of the condemnor or the condemnee has turned

on whose political ox is being gored at the moment rather than on the willingness

of anyone to adhere to a principled approach to lawmaking over the longer

haul.118

Although the substantive reasons leading to the adoption of these regulatory

restrictions are numerous (e.g., economic interests, or to support or oppose end-ofadministration rules), their inclusion in appropriations legislation as a matter of

legislative strategy appears to be prompted by two factors: (1) Congress’ ability via

its “power of the purse” to control agency action, and (2) the fact that appropriations

bills are considered “must pass” legislation. As one observer put it, “Because

everyone knows that Congress must pass such legislation, it is tempting to try and

attach incidental provisions that otherwise might lack the political momentum (or

even majority support) necessary for passage.”119 In that regard, several of the

regulatory restrictions discussed in this report were also in separate legislation that

had not moved since they were introduced. The use of regulatory restrictions in

appropriations bills is also likely to continue for the foreseeable future. The

examples provided in this report indicate that they are a formidable “tool” in the

“toolbox” of congressional oversight and control of executive agencies.

117

W i l l i a m W . B u zb e e , “ R e gu l a t o r y U n d e r k i l l , ” a va i l a b l e a t

[http://www.progressiveregulation.org/perspectives/underkill.cfm]. According to its

website, the Center for Progressive Reform is “a 501(c)(3) nonprofit research and

educational organization with a network of Member Scholars working to protect health,

safety, and the environment through analysis and commentary.”

118

Richard J. Lazarus, “Congressional Descent,” p. 637.

119

Richard J. Lazarus, “Congressional Descent,” p. 635.

CRS-36

Table 1. Appropriations Provisions Affecting Rulemaking and

Regulation, Fiscal Years 1999 Through 2008

Fiscal Year(s) in Which

the Provision Appeareda

A. Provisions Related to the Finalization of Particular Proposed Rules

1. None of the funds made available by this Act may be used to issue a

final rule in furtherance of, or otherwise implement, the proposed rule

on cost-sharing for animal and plant health emergency programs of the

Animal and Plant Health Inspection Service published on July 8, 2003

(Docket No. 02-062-1; 68 Fed. Reg. 40541).

2004, 2005, 2006, 2007,

2008

2. None of the funds appropriated or made available under this Act or

any other appropriations Act may be used to implement or enforce

restrictions or limitations on the Coast Guard Congressional Fellowship

Program, or to implement the proposed regulations of the Office of

Personnel Management to add sections 300.311 through 300.316 to part

300 of title 5 of the Code of Federal Regulations, published in the

Federal Register, volume 68, number 174, on September 9, 2003

(relating to the detail of executive branch employees to the legislative

branch).

2004, 2005, 2006, 2007,

2008

3. None of the funds made available in this Act may be used by the

Secretary of Homeland Security or any delegate of the Secretary to

issue any rule or regulation which implements the Notice of Proposed

Rulemaking related to Petitions for Aliens To Perform Temporary

Nonagricultural Services or Labor (H-2B) set out beginning on 70 Fed.

Reg. 3984 (January 27, 2005).

2008

4. None of the funds made available under this Act may be used to

promulgate or implement the Environmental Protection Agency [EPA]

proposed regulations published in the Federal Register on January 3,

2007 (72 Fed. Reg. 69).b

2008

5. None of the funds provided or limited under this Act may be used to

issue a final regulation under section 5309 of title 49, United States

Code, except that the Federal Transit Administration may continue to

review comments received on the proposed rule (Docket No.

FTA-2006-25737).c

2008

6. None of the funds made available in the Act may be used to finalize,

implement, administer, or enforce — (1) the proposed rule relating to

the determination that real estate brokerage is an activity that is

financial in nature or incidental to a financial activity published in the

Federal Register on January 3, 2001 (66 Fed. Reg. 307 et seq.); or (2)

the revision proposed in such rule to section 1501.2 of title 12 of the

Code of Federal Regulations.

2003, 2004, 2005, 2006,

2007 d

CRS-37

7. None of the funds made available under this Act may be used to

issue or implement the Department of Transportation’s proposed

regulation entitled Parts and Accessories Necessary for Safe Operation;

Certification of Compliance With Federal Motor Vehicle Safety

Standards (FMVSSs), published in the Federal Register, volume 67,

number 53, on March 19, 2002, relating to a phase-in period to bring

vehicles into compliance with the requirements of the regulation.

2005

8. None of the funds appropriated or otherwise made available by this

Act shall be used to promulgate a final regulation to implement changes

in the payment of pesticide tolerance processing fees as proposed at 64

Fed. Reg. 31040, or any similar proposals. The Environmental

Protection Agency may proceed with the development of such a rule.

2000, 2001, 2002, 2003

9. None of the funds made available in this or any other Act may be

expended before March 31, 1999 to publish final regulations based on

the regulations proposed at 63 Fed. Reg. 3289 on January 22, 1998.e

1999

10. None of the funds made available in this Act may be used by the

Secretary of the Interior or the Secretary of Agriculture to implement a

final rule for estimating fair market value land use rental fees for

fiberoptic communications rights-of-way on Federal lands that amends

or replaces the linear right-of-way rental fee schedule published on July

8, 1987 (43 CFR 2803.1-2(c)(1)(I)). In determining rental fees for

fiberoptic rights-of-way, the Secretaries shall use the rates contained in

the linear right-of-way rental fee schedules in place on May 1, 2000.

2001

11. None of the funds appropriated or made available by this Act or any

other Act shall be used: (1) to adopt any proposed rule or proposed

amendment to a rule contained in the Notice of Proposed Rulemaking

issued on April 24, 2000 (Docket No. FMCSA-97- 2350-953); (2) to

adopt any rule or amendment to a rule similar in substance to a

proposed rule or proposed amendment to a rule contained in such

Notice; or (3) if any such proposed rule or proposed amendment to a

rule has been adopted prior to enactment of this section, to enforce such

rule or amendment to a rule.f

2001, 2002g

12. None of the funds made available in this Act may be used by the

Secretary of the Treasury, or his designee, to issue any rule or

regulation which implements the proposed amendments to Internal

Revenue Service regulations set forth in REG-209500-86 and

REG-164464-02, or any amendments reaching results similar to such

proposed amendments.h

2004

B. Provisions Related to Regulatory Activity Within Certain Areas

1. None of the funds provided in this Act may be used for salaries and

expenses to draft or implement any regulation or rule insofar as it would

require recertification of rural status for each electric and

telecommunications borrower for the Rural Electrification and

Telecommunication Loans program.

2006, 2007, 2008

CRS-38

2. None of the funds appropriated by this Act may be used by the

Federal Communications Commission to modify, amend, or change its

rules or regulations for universal service support payments to implement

the February 27, 2004 recommendations of the Federal-State Joint

Board on Universal Service regarding single connection or primary line

restrictions on universal service support payments.

2005, 2006, 2007, 2008

3. For fiscal years 2008 and 2009, neither the Board of Governors of

the Federal Reserve System nor the Secretary of the Treasury may

determine, by rule, regulation, order, or otherwise, for the purposes of

section 4(K) of the Bank Holding Company Act of 1956, or section

5136A of the Revised Statutes of the United States, that real estate

brokerage activity or real estate management activity (which for

purposes of this paragraph shall be defined to mean ‘real estate

brokerage’ and ‘property management’ respectively, as those terms

were understood by the Federal Reserve Board prior to March 11, 2000)

is an activity that is financial in nature, is incidental to any financial

activity, or is complementary to a financial activity.

2008i

4. None of the funds contained in this Act may be used to enact or carry

out any law, rule, or regulation to legalize or otherwise reduce penalties

associated with the possession, use, or distribution of any schedule I

substance under the Controlled Substances Act (21 U.S.C. 801 et seq.)

or any tetrahydrocannabinols derivative.

All years (1999 through

2008)j

5. None of the funds made available by this Act shall be used to

prepare or publish final regulations regarding a commercial leasing

program for oil shale resources on public lands pursuant to section

369(d) of the Energy Policy Act of 2005 (P.L. 109-58) or to conduct an

oil shale lease sale pursuant to subsection 369(e) of such Act.

2008

6. None of the funds appropriated under this paragraph shall be

obligated or expended to prescribe, issue, administer, or enforce any

standard, rule, regulation, or order under the Act which is applicable to

any person who is engaged in a farming operation which does not

maintain a temporary labor camp and employs 10 or fewer employees.

All years (1999 through

2008)k

7. None of the funds in this Act shall be available for the Federal

Aviation Administration to finalize or implement any regulation that

would promulgate new aviation user fees not specifically authorized by

law after the date of the enactment of this Act.

All years (1999 through

2008)

8. None of the funds in this Act shall be used to pursue or adopt

guidelines or regulations requiring airport sponsors to provide to the

Federal Aviation Administration without cost building construction,

maintenance, utilities and expenses, or space in airport sponsor-owned

buildings for services relating to air traffic control, air navigation, or

weather reporting.l

2002, 2003, 2004, 2005,

2006, 2007, 2008

9. None of the funds appropriated by this Act may be obligated or

expended to plan, finalize, or implement any rulemaking to add to

section 575.104 of title 49 of the Code of Federal Regulations any

requirement pertaining to a grading standard that is different from the

three grading standards (treadwear, traction, and temperature resistance)

already in effect.

All years (1999 through

2008)

CRS-39

10. None of the funds in this Act shall be available to plan, finalize, or

implement regulations that would establish a vessel traffic safety

fairway less than five miles wide between the Santa Barbara Traffic

Separation Scheme and the San Francisco Traffic Separation Scheme.

1999, 2000, 2001, 2002,

2003

11. None of the funds appropriated or made available by this Act shall

be used to issue a proposed rule for which the comment period would

close prior to September 30, 2002, final, or interim final rule pursuant to

notice and comment rulemaking in relation to any change or

modification of the definition of “animal’” in existing regulations

pursuant to the Animal Welfare Act.

2001, 2002

12. None of the funds appropriated or otherwise made available for the

United Nations may be used by the United Nations for the promulgation

or enforcement of any treaty, resolution, or regulation authorizing the

United Nations, or any of its specialized agencies or affiliated

organizations, to tax any aspect of the Internet or international currency

transactions.

2002

13. None of the funds appropriated by this Act shall be used to propose

or issue rules, regulations, decrees, or orders for the purpose of

implementation, or in preparation for implementation, of the Kyoto

Protocol which was adopted on December 11, 1997, in Kyoto, Japan at

the Third Conference of the Parties to the United Nations Framework

Convention on Climate Change.

1999, 2000, 2001m

14. None of the funds in this Act shall be available for the Coast Guard

to plan, finalize, or implement any regulation that would promulgate

new maritime user fees not specifically authorized by law after the date

of the enactment of this Act:

1999, 2000, 2001

15. None of the funds in this Act shall be available to prepare, propose,

or promulgate any regulations pursuant to title V of the Motor Vehicle

Information and Cost Savings Act (49 U.S.C. 32901 et seq.) prescribing

corporate average fuel economy standards for automobiles, as defined

in such title, in any model year that differs from standards promulgated

for such automobiles prior to the enactment of this section.

1999, 2000, 2001

16. None of the funds in this Act shall be available to implement or

enforce regulations that would result in the withdrawal of a slot from an

air carrier at O’Hare International Airport under section 93.223 of title

14 of the Code of Federal Regulations in excess of the total slots

withdrawn from that air carrier as of October 31, 1993 if such additional

slot is to be allocated to an air carrier or foreign air carrier under section

93.217 of title 14 of the Code of Federal Regulations.

1999, 2000

17. None of the funds made available under this title may be used to . .

promulgate any regulation or other transmittal or policy directive that

has the effect of imposing (or clarifying the imposition of ) a restriction

on the coverage of injectable drugs under section 1861(s)(2) of the

Social Security Act beyond the restrictions applied before the date of

such transmittal.

2000

CRS-40

18. None of the funds made available by this Act or in subsequent Acts

may be used by the Environmental Protection Agency to issue or to

establish an interpretation or guidance relating to fats, oils, and greases

(as described in P.L. 104-55) that does not comply with the

requirements of the Edible Oil Regulatory Reform Act.

1999

19. None of the funds appropriated or otherwise made available to the

Secretary by this Act, any other Act, or any other source may be used to

issue the final rule to implement the amendments to Federal milk

marketing orders required by subsection (a)(1) of section 143 of the

Agricultural Market Transition Act (7 U.S.C. 7253), other than during

the period of February 1, 1999, through April 4, 1999, and only if the

actual implementation of the amendments as part of Federal milk

marketing orders takes effect on October 1, 1999, notwithstanding the

penalties that would otherwise be imposed under subsection (c) of such

section.

1999

20. None of such funds may be used to designate the State of California

as a separate Federal milk marketing order under subsection (a)(2) of

such section, other than during the period beginning on the date of the

issuance of the final rule referred to in subsection (a) through

September 30, 1999.

1999

21. None of the funds made available by this Act shall be used in any

way to promulgate a final rule (altering 29 CFR part 103) regarding

single location bargaining units in representation cases.

1999

22. None of the funds provided in this or any other Act may be used

prior to July 31, 2001, to promulgate or enforce a final rule to reduce

during the 2000-2001 or 2001-2002 winter seasons the use of

snowmobiles below current use patterns at a unit in the National Park

System.n

2001

C. Implementation or Enforcement Restrictions

1. None of the funds made available in this Act may be used to pay the

salaries or expenses of personnel to — (1) inspect horses under section

3 of the Federal Meat Inspection Act (21 U.S.C. 603); (2) inspect horses

under section 903 of the Federal Agriculture Improvement and Reform

Act of 1996 (7 U.S.C. 1901 note; P.L. 104-127); or (3) implement or

enforce section 352.19 of title 9, Code of Federal Regulations.

2008

2. None of the funds made available to the Postal Service by this Act

shall be used to implement any rule, regulation, or policy of charging

any officer or employee of any State or local enforcement agency, or

any individual participating in a State or local program of child support

enforcement, a fee for information requested or provided concerning an

address of a postal customer.

All years (1999 through

2008)

3. None of the funds made available by this Act may be used by the

Federal Communications Commission to implement the Fairness

Doctrine, as repealed in General Fairness Doctrine Obligations of

Broadcast Licensees (50 Fed. Reg. 35418 (1985)), or any other

regulations having the same substance.

2008

CRS-41

4. None of the funds made available by this Act shall be available for

any activity or for paying the salary of any Government employee

where funding an activity or paying a salary to a Government employee

would result in a decision, determination, rule, regulation, or policy that

would prohibit the enforcement of section 307 of the Tariff Act of 1930

(19 U.S.C. 1307).

All years (1999 through

2008) o

5. No funds appropriated under this paragraph shall be obligated or

expended to administer or enforce any standard, rule, regulation, or

order under the Act with respect to any employer of 10 or fewer

employees who is included within a category having a Days Away,

Restricted, or Transferred (DART) occupational injury and illness rate,

at the most precise industrial classification code for which such data are

published, less than the national average rate as such rates are most

recently published by the Secretary, acting through the Bureau of Labor

Statistics, in accordance with section 24 of the Act.p

All years (1999 through

2008)

6. None of the funds provided in this Act may be used for salaries and

expenses to carry out any regulation or rule insofar as it would make

ineligible for enrollment in the conservation reserve program

established under subchapter B of chapter 1 of subtitle D of title XII of

the Food Security Act of 1985 (16 U.S.C. 3831 et seq.) land that is

planted to hardwood trees as of the date of enactment of this Act and

was enrolled in the conservation reserve program under a contract that

expired prior to calendar year 2002.

2004, 2005, 2006, 2007

7. None of the funds appropriated or otherwise made available by this

Act shall be used to pay salaries and expenses of personnel who

implement or administer section 508(e)(3) of the Federal Crop

Insurance Act (7 U.S.C. 1508(e)(3)) or any regulation, bulletin, policy

or agency guidance issued pursuant to section 508(e)(3) of such Act for

the 2007 reinsurance year.

2006, 2007

8. None of the funds appropriated or made available by this or any

other Act may be used to pay the salaries and expenses of personnel to

carry out section 6029 of P.L. 107-171, the Farm Security and Rural

Investment Act of 2002.

2004, 2006, 2007q

9. No funds appropriated or otherwise made available by this Act may

be used to implement or enforce any provisions of the Final Rule, issued

on April 16, 2003 (Docket No. FMCSA-97- 2350), with respect to

either of the following: (1) The operators of utility service vehicles, as

that term is defined in section 395.2 of title 49, Code of Federal

Regulations. (2) Maximum daily hours of service for drivers engaged in

the transportation of property or passengers to or from a motion picture

or television production site located within a 100-air mile radius of the

work reporting location of such drivers.

2004

10. None of the funds provided in this Act shall be used to implement

or enforce regulations for locality pay areas in fiscal year 2004 that are

inconsistent with the recommendations of the Federal Salary Council

adopted on October 7, 2003.

2004

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11. None of the funds made available by this or any other Act shall be

used to implement Notice CRP-338, issued by the Farm Service Agency

on March 10, 1999, nor shall funds be used to implement any related

administrative action including implementation of such procedures

published in Farm Service Agency program manuals.r

2000

12. None of the funds made available by this or any other Act shall be

used to implement Notice CRP-327, issued by the Farm Service Agency

on October 26, 1998, nor shall funds be used to implement any related

administrative action including implementation of such procedures

published in Farm Service Agency program manuals.s

2000

13. None of the funds made available in this Act may be used to

implement, administer, or enforce any guidelines of the Equal

Employment Opportunity Commission covering harassment based on

religion, when it is made known to the Federal entity or official to

which such funds are made available that such guidelines do not differ

in any respect from the proposed guidelines published by the

Commission on October 1, 1993 (58 Fed. Reg. 51266).

2000, 2001

14. None of the funds made available in this Act may be used to

implement or administer the interim guidance issued on February 5,

1998 by the Environmental Protection Agency relating to title VI of the

Civil Rights Act of 1964 and designated as the ``Interim Guidance for

Investigating Title VI Administrative Complaints Challenging Permits’‘

with respect to complaints filed under such title after the date of the

enactment of this Act and until guidance is finalized.

1999, 2001

15. None of the funds appropriated by this Act may be used to delay the

national primary drinking water regulation for Arsenic published on

January 22, 2001, in the Federal Register (66 Fed. Reg. pages 6976

through 7066, amending parts 141 through 142 of title 40 of the Code of

Federal Regulations).

2002

D. Conditional Restrictions

1. None of the funds made available to the Indian Health Service in this

Act shall be used to implement the final rule published in the Federal

Human Services, relating to the eligibility for the health care services of

the Indian Health Service until the Indian Health Service has submitted

a budget request reflecting the increased costs associated with the

proposed final rule, and such request has been included in an

appropriations Act and enacted into law.

2000, 2001, 2002, 2003,

2005, 2008

2. None of the funds made available in this or any other Act shall be

available to finalize or implement any proposed regulation under the

Workforce Investment Act of 1998, Wagner-Peyser Act of 1933, or the

Trade Adjustment Assistance Reform Act of 2002 until such time as

legislation reauthorizing the Workforce Investment Act of 1998 and the

Trade Adjustment Assistance Reform Act of 2002 is enacted.

2008

3. None of the funds made available in this Act may be used to

promulgate, implement, or enforce any revision to the regulations in

effect under section 496 of the Higher Education Act of 1965 on June 1,

2007, until legislation specifically requiring such revision is enacted.

2008

CRS-43

4. None of the funds made available by this Act may be used by the

Administrator of the Environmental Protection Agency to accept,

consider or rely on third-party intentional dosing human toxicity studies

for pesticides, or to conduct intentional dosing human toxicity studies

for pesticides until the Administrator issues a final rulemaking on this

subject.t

2006, 2007

5. None of the funds provided in this Act or any other Act may be used

by the Environmental Protection Agency (EPA) to publish proposed or

final regulations pursuant to the requirements of section 428(b) of

division G of P.L. 108-199 until the Administrator of the Environmental

Protection Agency, in coordination with other appropriate Federal

agencies, has completed and published a technical study to look at

safety issues, including the risk of fire and burn to consumers in use,

associated with compliance with the regulations.u

2006, 2007

6. The Secretary of Labor shall take no action to amend, through

regulatory or administration action, the definition established in 20 CFR

667.220 for functions and activities under title I of the Workforce

Investment Act of 1998, or to modify, through regulatory or

administrative action, the procedure for redesignation of local areas as

specified in subtitle B of title I of that Act (including applying the

standards specified in section 116(a)(3)(B) of that Act, but

notwithstanding the time limits specified in section 116(a)(3)(B) of that

Act), until such time as legislation reauthorizing the Act is enacted.

2005, 2006, 2007, 2008v

7. Section 1310.12(a) of title 45 of the Code of Federal Regulations

(October 1, 2004) shall not be effective until June 30, 2006, or 60 days

after the date of the enactment of a statute that authorizes appropriations

for fiscal year 2006 to carry out the Head Start Act, whichever date is

earlier.

2006, 2007

8. None of the funds in title I of this Act may be used to adopt rules or

regulations concerning travel agent service fees unless the Department

of Transportation publishes in the Federal Register revisions to the

proposed rule and provides a period for additional public comment on

such proposed rule for a period not less than 60 days.

2004

9. The Secretary of Commerce “shall not prepare or publish proposed

or final regulations for the implementation of” a fishing capacity

reduction program for the West Coast groundfish fishery until a

referendum is conducted on the industry fee system.

2003

10. None of the funds in this Act may be expended to issue, implement,

or enforce a regulation that diminishes or revokes an exemption

authorized under section 345 of the National Highway System

Designation Act of 1995 (P.L. 104-59; 109 Stat. 613; 49 U.S.C. 31136

note) before the Secretary of Transportation determines by a rulemaking

proceeding that the exemptions granted are not in the public interest and

adversely affects the safety of commercial motor vehicles with respect

to such exemption that is required under subsection (c) of such section

and, as under subsection (d), if a result of monitoring the safety

performance of drivers of commercial vehicles that are subject to an

exemption under section 345, the Secretary determines that public

safety has been severely affected by an exemption granted under this

section, the Secretary shall report to Congress that determination.

2003

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11. No funds appropriated in this Act may be used to apply or enforce a

regulatory requirement for strengthening of flight deck doors on classes

of aircraft not specifically required to take such action under P.L.

107-71, section 104(a)(1), unless and until the Under Secretary of

Transportation for Security, after opportunity for notice and comment,

determines that such strengthening is necessary for aviation security

purposes.

2003

12. The Environmental Protection Agency may not use any of the funds

appropriated or otherwise made available by this Act to implement the

Registration Fee system codified at 40 Code of Federal Regulations

Subpart U (sections 152.400 et seq.) if its authority to collect

maintenance fees pursuant to FIFRA section 4(i)(5) is extended for at

least 1 year beyond September 30, 2002.

2002, 2003

13. None of the funds made available under this Act or any other Act,

may be used to implement, carry out, or enforce any regulation issued

under section 41705 of title 49, United States Code, including any

regulation contained in part 382 of title 14, Code of Federal

Regulations, or any other provision of law (including any Act of

Congress, regulation, or Executive order or any official guidance or

correspondence thereto), that requires or encourages an air carrier (as

that term is defined in section 40102 of title 49, United States Code) to,

on intrastate or interstate air transportation (as those terms are defined

in section 40102 of title 49, United States Code) — (1) provide a

peanut-free buffer zone or any other related peanut- restricted area; or

(2) restrict the distribution of peanuts, until 90 days after submission to

the Congress and the Secretary of a peer-reviewed scientific study that

determines that there are severe reactions by passengers to peanuts as a

result of contact with very small airborne peanut particles of the kind

that passengers might encounter in an aircraft.

1999, 2000

14. None of the funds made available by this Act shall be used to issue

a notice of final rulemaking with respect to the valuation of crude oil for

royalty purposes until March 15, 2000. The rulemaking must be

consistent with existing statutory requirements.

1999, 2000

15. None of the funds in this Act or any other Act shall be used by the

Secretary of the Interior to promulgate final rules to revise 43 CFR

subpart 3809, except that the Secretary, following the public comment

period required by section 3002 of P.L. 106-31, may issue final rules to

amend 43 CFR Subpart 3809 which are not inconsistent with the

recommendations contained in the National Research Council report

entitled ``Hardrock Mining on Federal Lands’‘ so long as these

regulations are also not inconsistent with existing statutory authorities.

2000, 2001

Notes: The provisions that are listed in this table may not include all provisions limiting rulemaking

or regulatory activity during this period. They were drawn from the appropriations legislation that was

enacted from FY1999 through FY2008, which may be found on the CRS website at

[http://www.crs.gov/products/appropriations/WA00001.shtml].

a. The final continuing resolution for FY2007 (the Revised Continuing Appropriations Resolution,

2007, P.L. 110-5) did not include many of the provisions restricting regulatory actions, but

Section 104 of the legislation stated that, “Except as otherwise expressly provided in this

division, the requirements, authorities, conditions, limitations, and other provisions of the

appropriations Acts referred to in section 101(a) shall continue in effect through the date

CRS-45

specified in section 106.” Section 101(a) lists nine FY2006 appropriations acts, and Section 106

states that the funds made available were for the period ending September 30, 2007. All of the

provisions in effect for FY2006 were in one of those nine appropriations acts. Therefore, this

report considers the requirements that were in effect in FY2006 to also have been in effect for

FY2007.

b. The proposed rule at issue would have amended the general provisions to the national emission

standards for hazardous air pollutants, replacing a policy that had been established in 1995.

c. Section 5309 of Title 49 involves “capital investment grants.” The proposed rule was issued on

August 3, 2007, and proposed changes in the Federal Transit Administration’s “small starts”

capital investment grant program.

d. A similar provision appeared in the Consolidated Appropriations Act for 2008 prohibiting

regulatory activity in this area by the Board of Governors of the Federal Reserve System or the

Secretary of the Treasury, but not referencing this particular rule. (See item B.3. in this table.)

e. U.S. Department of the Interior, Bureau of Indian Affairs, “Class III Gaming Procedures,” 63

Federal Register 3289, January 22, 1998. Class III gaming primarily includes slot machines,

casino games, banking card games, dog racing, horse racing, and lotteries. In the proposed rule,

the bureau said that the Department had determined that “ the Secretary may promulgate Class

III gaming procedures under certain specified circumstances,” and that the rule “sets forth the

process and standards pursuant to which any procedures would be adopted.”

f. The provision went on to say the following: “Provided, That nothing in this section shall apply to

issuing and proceeding, through all stages of rulemaking other than adoption of a final rule,

under subchapter II of chapter 5 of title 5, United States Code on a supplemental notice of

proposed rulemaking to be issued in Docket No. FMCSA-97-2350-953 that contains proposed

rules and proposed amendments to rules that take appropriate account of the information

received for filing in the docket on the Notice of Proposed Rulemaking (Docket No.

FMCSA-97-2350-953).” The proposed rule was actually published in the Federal Register on

May 2, 2000. U.S. Department of Transportation, Federal Motor Carrier Safety Administration,

“Hours of Service of Drivers; Driver Rest and Sleep for Safe Operations; Proposed Rule,” 65

Federal Register 25539, May 2, 2000.

g. The language for FY2002 was different than that used for FY2001, but had the same effect.

h. U.S. Department of the Treasury, Internal Revenue Service, “Reductions of Accruals and

Allocations Because of the Attainment of Any Age; Application of Nondiscrimination CrossTesting Rules to Cash Balance Plans,” 67 Federal Register 76123, December 11, 2002. The

rule would affect retirement plan sponsors and administrators, and participants in and

beneficiaries of retirement plans.

i. Similar provisions appeared in previous years, but did not focus on the Board of Governors of the

Federal Reserve or the Secretary of the Treasury. (See item A.6 in this table.)

j. In FY2001, this provision was in P.L. 106-522 and P.L. 106-553 (both related to the District of

Columbia). In FY1999, P.L. 105-277 stated that “None of the funds contained in this Act may

be used to conduct any ballot initiative which seeks to legalize or otherwise reduce penalties

associated with the possession, use, or distribution of any schedule I substance under the

Controlled Substances Act (21 U.S.C. 802) or any tetrahydrocannabinols derivative.”

k. This “farming rider” has been in appropriations legislation as far back as 1991. See, for example,

title I of the Departments of Labor, Health and Human Services, and Education, and Related

Agencies Appropriations Act, 1992 (P.L. 102-170).

l. This provision went on to say that “the prohibition of funds in this section does not apply to

negotiations between the agency and airport sponsors to achieve agreement on ‘below-market’

rates for these items or to grant assurances that require airport sponsors to provide land without

cost to the FAA for air traffic control facilities.” In FY2005, the provision appeared in both the

Consolidated Appropriations Act, 2005 (P.L. 108-447, Division D — the Transportation,

Treasury, Independent Agencies, and General Government Appropriations Act, 2005); and the

Department of Homeland Security Appropriations Act, 2005 (P.L. 108-334).

m. In FY2000, this provision was in P.L. 106-69 (related to the Department of Transportation), P.L.

106-74 (related to the Environmental Protection Agency), P.L. 106-78 (related to the

Department of Agriculture), and P.L. 106-113 (the Consolidated Appropriations Act, 2000).

In FY2001, this provision was in numerous appropriations bills, including P.L. 106-291 (related

to the Department of the Interior), P.L 106-346 (related to the Department of Transportation),

Appendixes A and B of P.L. 106-377 (related to the Departments of Veterans Affairs and

Housing and Urban Development and Independent Agencies), P.L. 106-387 (related to the

Department of Agriculture), and P.L. 106-429 (related to foreign operations).

CRS-46

n. The provision went on to say the following: “Provided, That nothing in this section shall be

interpreted as amending any requirement of the Clean Air Act: Provided further, That nothing

in this section shall preclude the Secretary from taking emergency actions related to snowmobile

use in any National Park based on authorities which existed to permit such emergency actions

as of the date of enactment of this Act.”

o. This provision was in both the Consolidated Appropriations Act, 2004 (P.L. 108-189 — Division

F, the Department of Transportation and Treasury, and Independent Agencies Appropriations

Act, 2004); and in the Department of Homeland Security Appropriations Act, 2004 (P.L. 10890).

p. The provision went on to provide certain exceptions (e.g., “to provide, as authorized by the Act,

consultation, technical assistance, educational and training services, and to conduct surveys and

studies”). In FY2004 and earlier years, the reference to DART was replaced with “an

occupational injury lost workday case rate”.

q. In FY2004, this provision (section 759 of P.L. 108-199) went on to say that “this section shall not

apply to activities related to the promulgation of regulations or the receipt and review of

applications for the Rural Business Investment Program.” Therefore, it prohibited the

enforcement, but not the promulgation, of regulations. In FY2005, the appropriation bill did not

prohibit enforcement, but a provision (section 753 of P.L. 108-447) said that no more than $10

million could be used to carry out section 6029.

r. This provision also provided that “rental payments for any lands enrolled in the Conservation

Reserve Program under this section shall be reduced by an amount equal to the Federal cost of

any remaining value of a federally cost-shared conservation practice as determined by the

Secretary.”

s. This provision also provided that “this section shall not apply to any lands for which there is not full

compliance with the conservation practices required under terms of the CRP contract.”

t. The provision went on to say that “The Administrator shall allow for a period of not less than 90

days for public comment on the Agency’s proposed rule before issuing a final rule. Such rule

shall not permit the use of pregnant women, infants or children as subjects; shall be consistent

with the principles proposed in the 2004 report of the National Academy of Sciences on

intentional human dosing and the principles of the Nuremberg Code with respect to human

experimentation; and shall establish an independent Human Subjects Review Board. The final

rule shall be issued no later than 180-days after enactment of this Act.”

u. The provision went on to say that “Not later than 6 months after the date of enactment of this Act,

the Administrator shall complete and publish the technical study.”

v. The provision in the Consolidated Appropriations Act, 2005 (P.L. 108-447) did not contain the

language “or to modify, through regulatory or administrative action, the procedure for

redesignation of local areas as specified in subtitle B of title I of that Act (including applying

the standards specified in section 116(a)(3)(B) of that Act, but notwithstanding the time limits

specified in section 116(a)(3)(B) of that Act)”.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.