B-215127, OCT 30, 1984

B-215127, OCT 30, 1984

APPROPRIATIONS - AVAILABILITY - USER CHARGES - CREDITED TO APPROPRIATED ACCOUNT - EFFECT DIGEST: 1. A PROPOSED APPROPRIATION ACT PROVISION AUTHORIZING THE NATIONAL LIBRARY OF MEDICINE TO RETAIN AND USE PAYMENTS RECEIVED FOR ITS SERVICES WOULD NOT VIOLATE SECTION 401 OF THE CONGRESSIONAL BUDGET ACT OF 1974, AS AMENDED, PUB. L. NO. 93-344, 88 STAT. 297. CONSISTENT WITH SECTION 311 OF THAT ACT, IF SUCH A PROVISION IS CONSIDERED BY THE CONGRESS AFTER IS HAD COMPLETED ACTION ON THE SECOND CONCURRENT RESOLUTION OF A PARTICULAR YEAR'S BUDGET, OR A REQUIRED RECONCILIATION BILL OR RESOLUTION, IT COULD BE SUBJECT TO A POINT OF ORDER SINCE IT MIGHT CAUSE THE LEVEL OF REVENUES PREVIOUSLY SET FORTH TO BE REDUCED. CONGRESS - RULES - POINT OF ORDER - APPLICABILITY - APPROPRIATION BILLS 2. TO THE EXTENT THAT A PROVISION ALLOWING THE NATIONAL LIBRARY OF MEDICINE TO MAKE USE OF THE MONIES COLLECTED FOR SERVICES PROVIDED ITS USERS CONSTITUTES A CHANGE IN SUBSTANTIVE LAW, IT COULD BE SUBJECT TO A POINT OF ORDER IN THE HOUSE OF REPRESENTATIVES UNDER RULE XXI AND IN THE SENATE UNDER RULE XVI.

THE HONORABLE SILVIO O. CONTE HOUSE OF REPRESENTATIVES

DEAR MR. CONTE:

BY LETTER OF APRIL 27, 1984, YOU ASKED ABOUT THE PROPRIETY OF A PROVISION IN THE ADMINISTRATION'S FISCAL YEAR 1985 BUDGET CALLING FOR A APPROPRIATION TO THE NATIONAL LIBRARY OF MEDICINE OF THE NATIONAL INSTITUTES OF HEALTH, OF $51,320,000 "TOGETHER WITH NOT TO EXCEED $10 MILLION TO BE DERIVED FROM THE EXCHANGE OR SALE OF SERVICES OR MATERIALS AUTHORIZED BY SECTION 382 OF THE PUBLIC HEALTH SERVICE ACT," 42 U.S.C. SEC. 276. YOU ARE CONCERNED THAT CREDITING THE USER FEES DERIVED FROM THE SALE OF THE LIBRARY'S SERVICES AND MATERIALS TO THE LIBRARY'S ACCOUNT, INSTEAD OF DEPOSITING THEM INTO THE MISCELLANEOUS RECEIPTS ACCOUNT OF THE TREASURY, MAY VIOLATE THE CONGRESSIONAL BUDGET ACT OF 1974, PUB. L. NO. 93 -344, 88 STAT. 297, OR SOME OTHER FEDERAL INSTITUTE.

ALTHOUGH THIS PROVISION WAS INCLUDED IN S.2836, THE SENATE VERSION OF THE FISCAL 1985 DEPARTMENT OF LABOR, HEALTH AND HUMAN SERVICES AND EDUCATION, AND RELATED AGENCIES APPROPRIATION ACT FOR FISCAL 1985, IT WAS DELETED IN CONFERENCE. NEVERTHELESS, YOUR STAFF HAS INDICATED THAT YOU STILL ARE INTERESTED IN OUR GENERAL ANALYSIS OF THE PROPRIETY OF THE PROPRIETY OF SUCH A PROVISION. FOR THE REASONS GIVEN BELOW, WE FIND THAT SUCH A PROVISION IS LEGALLY PROPER, ALTHOUGH TO THE EXTENT THAT IT CONFLICTS WITH EXISTING SUBSTANTIVE LEGISLATION, IT MAY BE SUBJECT TO A POINT OF ORDER UNDER THE RULES OF THE HOUSE OF REPRESENTATIVES AND OF THE SENATE.

AMONG OTHER THINGS, SECTION 382 AUTHORIZES THE SECRETARY OF HEALTH AND HUMAN SERVICES, UPON THE ADVICE AND RECOMMENDATION OF THE LIBRARY'S BOARD OF REGENTS, TO PRESCRIBE RULES UNDER WHICH THE LIBRARY WILL PROVIDE, FOR A FEE, ITS MATERIALS OR SERVICES IN APPROPRIATE CIRCUMSTANCES TO PUBLIC AND PRIVATE AGENCIES AND ORGANIZATIONS, INSTITUTIONS, AND INDIVIDUALS. ACCORDING TO THE LIBRARY, THE FEES REPRESENT THE COSTS INCURRED BY THE LIBRARY IN MAKING AVAILABLE ITS SERVICES TO ITS USERS.

IN THE PAST, MOST OF THE FEES WERE DEPOSITED INTO THE MISCELLANEOUS RECEIPTS OF THE TREASURY AS REQUIRED BY SECTION 483A OF TITLE 31 OF THE U.S.C. CURRENTLY CODIFIED AT SECTIONS 3302 AND 9701 OF TITLE 31. FOR FISCAL YEAR 1984 THE HOUSE COMMITTEE ON APPROPRIATIONS REJECTED A PROPOSED REVISION IN THE APPROPRIATION TO THE LIBRARY THAT WOULD HAVE AUTHORIZED THE LIBRARY TO CREDIT TO ITS APPROPRIATION PAYMENTS RECEIVED FOR ITS SERVICES. H.R. REP. NO. 357, 98TH CONG., 1ST SESS. 73 (1983). FOR FISCAL YEAR 1985, THE ADMINISTRATION PROPOSED THE SAME CHANGE; HOWEVER, AGAIN IT WAS NOT APPROVED. THE ADMINISTRATION'S FISCAL YEAR 1985 BUDGET EXPLAINS THAT THE PROPOSED LANGUAGE WOULD PERMIT THE LIBRARY TO USE FUNDS RECEIVED IN PAYMENT FOR SERVICES PROVIDED TO THE PRIVATE SECTOR TO OFFSET GENERAL OPERATING COSTS OF THE LIBRARY.

THE CONGRESSIONAL BUDGET ACT OF 1974, AS AMENDED, PUB. L. NO. 93-344, 88 STAT. 297, WAS INTENDED TO IMPROVE CONGRESSIONAL CONTROL OF BUDGET OUTLAYS AND TO PUT RESTRICTIONS ON BACKDOOR SPENDING, THAT IS, SPENDING OUTSIDE THE APPROPRIATION PROCESS. H.R. REP. NO. 638, 93D CONG., 1ST SESS. 16-17, 22-23 (1973); S. REP. NO. 688, 93D CONG., 2D SESS. 1, 7 (1974). THUS, SECTION 401 OF THE ACT, 2 U.S.C. SEC. 651(A) (1982), PROVIDES THAT IT SHALL NOT BE IN ORDER FOR EITHER THE HOUSE OR THE SENATE TO CONSIDER A BILL OR RESOLUTION THAT PROVIDES NEW SPENDING AUTHORITY UNLESS THE BILL OR RESOLUTION PROVIDES THAT THE SPENDING AUTHORITY SHALL BE EFFECTIVE FOR ANY FISCAL YEAR ONLY TO SUCH EXTENT AND IN SUCH AMOUNT AS ARE PROVIDED IN APPROPRIATION ACTS. THE TERMS "SPENDING AUTHORITY", /1/ AS DEFINED IN THE ACT, COULD APPLY TO A CHANGE IN AN APPROPRIATION TO THE LIBRARY BY WHICH THE LIBRARY WOULD BE ABLE TO ADD TO ITS APPROPRIATION THE REVENUES TO BE DERIVED FROM THE LIBRARY'S USER FEES. HOWEVER, SINCE THIS AUTHORITY WOULD BE INCLUDED IN AN APPROPRIATION ACT, IT WOULD NOT CONFLICT WITH SECTION 401.

IT IS POSSIBLE THAT A QUESTION COULD ARISE, HOWEVER, ABOUT WHETHER SUCH A PROVISION IS CONSISTENT WITH SECTION 311 OF THE ACT, 2 U.S.C. SEC. 642. SECTION 311 PROVIDES THAT AFTER THE CONGRESS HAS COMPLETED ACTION ON THE SECOND CONCURRENT RESOLUTION OF THE BUDGET FOR A FISCAL YEAR, OR A REQUIRED RECONCILIATION BILL OR RESOLUTION, IT SHALL NOT BE IN ORDER IN EITHER THE HOUSE OF REPRESENTATIVES OR THE SENATE TO CONSIDER ANY BILL, RESOLUTION, OR AMENDMENT REDUCING REVENUE FOR SUCH FISCAL YEAR IF THE ENACTMENT OF THE BILL OR RESOLUTION WOULD CAUSE REVENUES TO BE LESS THAN THE LEVEL OF REVENUES SET FORTH IN SUCH CONCURRENT RESOLUTION OR REQUIRED RECONCILIATION BILL OR RESOLUTION. /2/ UNDER CERTAIN CIRCUMSTANCES, A REVENUE LOSS COULD INCLUDE A SITUATION WHERE A GOVERNMENT AGENCY THAT HAD DEPOSITED USER FEES INTO THE MISCELLANEOUS RECEIPTS OF THE TREASURY, AS GENERALLY REQUIRES, IS GIVEN AUTHORITY IN AN APPROPRIATION ACT TO MAKE USE OF THE FEES. THUS, IF A REVENUE LOSS WERE INVOLVED AND IT WOULD CAUSE REVENUES TO BE LESS THAN THE TOTAL LEVEL OF REVENUES SET FORTH IN A CONCURRENT RESOLUTION OR RECONCILIATION BILL OR RESOLUTION, CONSISTENT WITH SECTION 311, IT WOULD NOT BE IN ORDER FOR EITHER HOUSE TO CONSIDER SUCH A PROVISION.

WE HAVE NOT FOUND ANY OTHER LEGAL IMPEDIMENT TO THE PROPOSED APPROPRIATION. ALTHOUGH USER FEES GENERALLY ARE REQUIRED TO BE DEPOSITED IN THE MISCELLANEOUS RECEIPTS OF THE TREASURY, 31 U.S.C. SEC. 3302(B), IT IS CERTAINLY PROPER FOR THE CONGRESS TO LEGISLATE EXCEPTIONS TO THE GENERAL PROVISION. /3/

WE SHOULD MENTION, HOWEVER, THAT TO THE EXTENT THAT THE PROVISION CONSTITUTES A SUBSTANTIVE CHANGE IN THE LAW, THE PROVISION COULD BE SUBJECT TO A POINT OF ORDER IN EITHER HOUSE OF THE CONGRESS. SEE HOUSE RULE XXI AND SENATE RULE XVI. THE NATURE OR THE PROPOSED AMENDMENT WAS RECOGNIZED BY SENATOR WEICKER DURING SENATE HEARINGS ON LAST YEAR'S PROPOSED REVISION OF THE APPROPRIATION FOR THE LIBRARY. THUS, HE SAID THAT "IT CLEARLY *** IS AUTHORIZATION LEGISLATION *** IN APPROPRIATION BILLS." HEARINGS ON H.R. 3913 BEFORE THE SENATE COMMITTEE ON APPROPRIATIONS, 98TH CONG., 1ST SESS. 931, PT. 2 (1983). IN THIS REGARD, WE NOTE THAT THE APPLICABILITY OF SENATE AND HOUSE RULES IS EXCLUSIVELY WITHIN THE PROVINCE OF EACH HOUSE TO DETERMINE FOR ITSELF. SEE 46 COMP.GEN. 427, 430 (1966); 36 COMP.GEN.712,713 (1957).

WE HOPE WE HAVE BEEN OF ASSISTANCE.

/1/ SPENDING AUTHORITY MEANS AUTHORITY, FOR WHICH BUDGET AUTHORITY IS NOT PROVIDED IN ADVANCE BY APPROPRIATION ACTS, (A) TO ENTER INTO CONTRACTS UNDER WHICH THE UNITED STATES IS OBLIGATED TO MAKE OUTLAYS, (B) TO INCUR INDEBTEDNESS FOR THE REPAYMENT OF WHICH THE UNITED STATES IS LIABLE, AND (C) TO MAKE PAYMENTS TO ANY PERSON OR GOVERNMENT, IF, UNDER THE PROVISIONS OF LAW CONTAINING SUCH AUTHORITY, THE UNITED STATES IS OBLIGATED TO MAKE SUCH PAYMENTS TO PERSONS OR GOVERNMENTS WHO MEET THE REQUIREMENTS ESTABLISHED BY LAW. 2 U.S.C. SEC. 651(C)(2). THE ACT ALSO PLACES CONTROLS ON BUDGET AUTHORITY, AS DEFINED IN 2 U.S.C. SEC. 622(2), AND TAX EXPENDITURES, AS DEFINED IN ID. SEC. 622(3); HOWEVER, NEITHER OF THESE TERMS COMPREHENDS THE PROPOSAL TO MAKE USER FEES AVAILABLE TO THE LIBRARY.

/2/ WE NOTE, HOWEVER, THAT AT LEAST FOR FISCAL YEARS 1985, 1984, AND 1983, THE CONGRESS NEVER PASSED A SECOND CONCURRENT RESOLUTION. FOR THOSE FISCAL YEARS THE FIRST BUDGET RESOLUTION CONTAINED LANGUAGE PROVIDING THAT IF THE CONGRESS DID NOT COMPLETE ACTION ON THE SECOND CONCURRENT RESOLUTION BY OCTOBER 1, 1984, 1983, AND 1982, RESPECTIVELY, THE FIRST CONCURRENT RESOLUTION WOULD BE DEEMED THE SECOND CONCURRENT RESOLUTION, E.G., H. CON. RES. NO. 280, 98TH CONG., 2D SESS. (1984).

/3/ ALTHOUGH OMB CIRCULAR A-25, SEC. 5(C), STATES THAT LEGISLATIVE PROPOSALS GENERALLY SHOULD AVOID DISTURBING THE PRESENT LAW THAT COLLECTIONS OF USER FEES GO INTO THE GENERAL FUND OF THE TREASURY AS MISCELLANEOUS RECEIPTS, EXCEPTIONS CAN BE MADE WHERE IT IS INTENDED THAT AN AGENCY OR PROGRAM BE OPERATED ON A SUBSTANTIALLY SELF SUSTAINING BASIS FROM RECEIPTS FOR SERVICES PERFORMED OR USE OF GOVERNMENT-OWNED RESOURCES OR PROPERTY.