CBA (Contents)

Congressional Budget Act of 1974

Section 401

TITLE IV—ADDITIONAL PROVISIONS TO IMPROVE

FISCAL PROCEDURES

 PART A—GENERAL PROVISIONS

budget-related legislation not subject to appropriations

Sec. 401. (a) Control on Certain Budget-Related Legislation Not Subject to Appropriations.—It shall not be in order in either the House of Representatives or the Senate to consider any bill or joint resolution (in the House of Representatives only, as reported), amendment, motion, or conference report that provides—

(1) new authority to enter into contracts under which the United States is obligated to make outlays;

(2) new authority to incur indebtedness (other than indebtedness incurred under chapter 31 of title 31 of the United States Code) for the repayment of which the United States is liable; or

(3) new credit authority;

unless that bill, joint resolution, amendment, motion, or conference report also provides that the new authority is to be effective for any fiscal year only to the extent or in the amounts provided in advance in appropriation Acts.

(b) Legislation Providing New Entitlement Authority.—

(1) Point of Order.—It shall not be in order in either the House of Representatives or the Senate to consider any bill or joint resolution (in the House of Representatives only, as reported), amendment, motion, or conference report that provides new entitlement authority that is to become effective during the current fiscal year.

(2) If any committee of the House of Representatives or the Senate reports any bill or resolution which provides new entitlement authority which is to become effective during a fiscal year and the amount of new budget authority which will be required for such fiscal year if such bill or resolution is enacted as so reported exceeds the appropriate allocation of new budget authority reported under section 302(a) in connection with the most recently agreed to concurrent resolution on the budget for such fiscal year, such bill or resolution shall then be referred to the Committee on Appropriations of the Senate or may then be referred to the Committee on Appropriations of the House, as the case may be, with instructions to report it, with the committee’s recommendations, within 15 calendar days (not counting any day on which that House is not in session) beginning with the day following the day on which it is so referred. If the Committee on Appropriations of either House fails to report a bill or resolution referred to it under this paragraph within such 15–day period, the committee shall automatically be discharged from further consideration of such bill or resolution and such bill or resolution shall be placed on the appropriate calendar.

(3) The Committee on Appropriations of each House shall have jurisdiction to report any bill or resolution referred to it under paragraph (2) with an amendment which limits the total amount of new spending authority provided in such bill or resolution.

(c) Exceptions.—

(1) Subsections (a) and (b) shall not apply to new spending authority if the budget authority for outlays which result from such new spending authority is derived.^[1] —

(A) from a trust fund established by the Social Security Act (as in effect on the date of the enactment of this Act); or

(B) from any other trust fund, 90 percent or more of the receipts of which consist or will consist of amounts (transferred from the general fund of the Treasury) equivalent to amounts of taxes (related to the purposes for which such outlays are or will be made) received in the Treasury under specified provisions of the Internal Revenue Code of 1954.

(2) Subsections (a) and (b) shall not apply to new authority described in those subsections to the extent that—

(A) the outlays resulting therefrom are made by an organization which is (i) a mixed-ownership Government corporation (as defined in section 201 of the Government Corporation Control Act), or (ii) a wholly owned Government corporation (as defined in section 101 of such Act) which is specifically exempted by law from compliance with any or all of the provisions of that Act, as of the date of enactment of the Balanced Budget and Emergency Deficit Control Act of 1985; or

(B) the outlays resulting therefrom consist exclusively of the proceeds of gifts or bequests made to the United States for a specific purpose.

(3) In the House of Representatives, subsections (a) and (b) shall not apply to new authority described in those subsections to the extent that a provision in a bill or joint resolution, or an amendment thereto or a conference report thereon, establishes prospectively for a Federal office or position a specified or minimum level of compensation to be funded by annual discretionary appropriations.

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COUNSEL NOTES

Codification

This section is classified to the U.S. Code at 2 U.S.C. 651.

Endnotes

[1] Section 10116(a)(4)(A) of the Budget Enforcement Act of 1997 (Pub. L. 105-33) unsuccessfully attempted to amend subsection (a)(1)

… by striking “new spending authority if the budget authority for outlays which result from such new spending authority is de-rived” and inserting “new authority described in those subsections if outlays from that new authority will flow”.

The above text in italics could not be stricken verbatim because the italicized text in former section 401 (CBA) read “for outlays which will result”.

Law Revision Counsel used the “probable intent” and 2 U.S.C. 651(c)(1) therefore reads as follows:

(1) Subsections (a) and (b) shall not apply to new authority de-scribed in those subsections if outlays from that new authority will flow—

Deschler’s Precedents

Deschler’s Precedents Ch. 41. 12.2 Provisions Constituting New Spending Authority

Deschler’s Precedents Ch. 41. § 13. Section 401(b)

Deschler’s Precedents Ch. 41. § 14. Former Section 402(a)

[GPO Link to Chapter 41, § 12. Section 401(a)]

[GPO Link to Chapter 41, § 13. Section 401(b)]

[GPO Link to Chapter 41, § 14.Former Section 402(a)]

Referrals to the House Committee on Appropriations

If a bill is reported in the House or Senate by a committee in breach of its allocation under section 302 (CBA), then it is, required in the Senate and may in the House, to be referred to the Committee on Appropriations for 15 days. The House Rules and Manual included notes on the provision:

Before consideration of a bill in the Committee of the Whole, the Speaker may discharge from the Union Calendar and refer to the Appropriations Committee for 15 days, pursuant to section 401(b), a bill that has been reported providing new entitlement authority in excess of the total amount allocated to the reporting committee (Speaker O’Neill, Sept. 8, 1977, p. 28153; Sept. 8, 1978, p. 28543) even if the bill was reported before final adoption of the first budget resolution (Speaker O’Neill, July 19, 1978, pp. 21786, 21787; May 21, 1981, p. 10622). A bill reported from the Committee on Agriculture amending the Food and Agriculture Act to increase certain commodity target prices of 1979 crops, thereby providing new entitlement authority for fiscal year 1980 in excess of the amount allocated to that committee under the first budget resolution, and a bill reported from the Committee on Ways and Means increasing eligibility and payments for child welfare and social services under the Social Security Act, providing new entitlement authority in excess of the net amount of such authority allocated to that committee under the first budget resolution, were discharged from the Union Calendar by the Speaker and referred to the Appropriations Committee pursuant to section 401(b) (Speaker O’Neill, June 5, 1979, p. 13385; June 6, 1979, p. 13665). The Speaker may exercise the referral authority under section 401(b), whether or not the committee has filed its report under section 302(b) of the Budget Act, where the budget authority for the entitlement bill has been assumed in the budget resolution and would be included in the committee’s 302(b) report, but where the budget authority for such bill exceeds the net amount of such authority allocated to the reporting committee, because the budget resolution assumes the reporting of other legislation, decreasing other programs for the year in question, that has yet to be reported (Speaker O’Neill, June 6, 1979, p. 13665).

Although the former definition of new spending authority in section 401(c)(2) did not include the authority to insure or guarantee the repayment of indebtedness incurred by another person or government (as where the authority to incur contractual obligations to insure or guarantee another person’s debt is a contingent liability of the United States), the authority to make payments in connection with defaults that have already occurred was conceded to constitute a primary liability of the United States to incur indebtedness and to require budget authority in advance in appropriation Acts (Sept. 27, 1976, pp. 32655–704). A provision that requires payments to individuals meeting certain qualifications, but that also contains an authorization for appropriations to make such payments and a provision that if sums appropriated pursuant thereto are insufficient to make payments, then payments be ratably reduced to the amounts of appropriations actually made, does not constitute new entitlement authority (Sept. 13, 1983, p. 23884).

The former definition of new entitlement authority did not include revenue-sharing spending authority in the form of entitlements, because the exception from the definition of new spending authority for revenue-sharing programs did not apply to new entitlement authority for future fiscal years (Speaker Albert, Sept. 30, 1976, pp. 34074–100).

House Rules and Manual (115th Congress), § 1127, pp. 1111-1112.

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LEGISLATIVE HISTORY NOTES

Public Laws

Pub. L. 93–344, title IV, §401, July 12, 1974, 88 Stat. 317 (Congressional Budget Act of 1974).

Pub. L. 99–177, title II, §211, December 12, 1985, 99 Stat. 1056  (Balanced Budget and Emergency Deficit Control Act of 1985).

Pub. L. 99–514, §2, Oct. 22, 1986, 100 Stat. 2095 (Tax Reform Act of 1986).

Pub. L. 101–508, title XIII, §13207(a)(1)(F), (G), November 5, 1990, 104 Stat. 1388–617, 1388-618 (Budget Enforcement Act of 1990).

Pub. L. 105–33, title X, §10116(a)(1)–(5), August 5, 1997, 111 Stat. 690 , 691 (Budget Enforcement Act of 1997).

Pub. L. 113–67, div. A, title I, §122(12), (13), December 26, 2013, 127 Stat. 1176 (Bipartisan Budget Act of 2013).

References in Text

The Social Security Act, referred to in subsection (c)(1)(A), is Pub. L. 74-271; August 14, 1935, chapter 531, 49 Stat. 620, as amended, which is classified generally to chapter 7 (§301 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see section 1305 of Title 42 and the Tables of the U.S. Code.

The Internal Revenue Code of 1986, referred to in subsection (c)(1)(B), is classified generally to Title 26, Internal Revenue Code.

Codification

This section was formerly classified to section 1351 of Title 31 prior to the general revision and enactment of Title 31, Money and Finance, by Pub. L. 97–258, §1, Sept. 13, 1982, 96 Stat. 877 .

Amendments 

2013

Subsection (b)(2).

Pub. L. 113–67, §122(12) (BBA 2013) substituted “section 302(a)” for “section 302(b)”.

Subsection (c)(3).

Pub. L. 113–67, §122(13) (BBA 2013) added paragraph (3). 

1997

Pub. L. 105–33, §10116(a)(1)(A) (BEA 1997) substituted “Budget-related legislation not subject to appropriations” for “Bills providing new spending authority” as section catchline.

Subsection (a).

Pub. L. 105–33, §10116(a)(1)(B)(BEA 1997) added subsection (a) and struck out the heading and text of former subsection (a). The former section read as follows:

(a) Controls on Legislation Providing Spending Authority.—It shall not be in order in either the House of Representatives or the Senate to consider any bill, joint resolution, amendment, motion, or conference report, as reported to its House which provides new spending authority described in subsection (c)(2)(A) or (B) of this section, unless that bill, resolution, conference report, or amendment also provides that such new spending authority as described in subsection (c)(2)(A) or (B) of this section is to be effective for any fiscal year only to such extent or in such amounts as are provided in appropriation Acts.

Subsection (b).

Pub. L. 105–33, §10116(a)(2)(A) (BEA 1997) inserted “new” before “entitlement” in heading.

Subsection (b)(1).

Pub. L. 105–33, §10116(a)(2)(B) (BEA 1997) added paragraph (1) and struck out the former paragraph (1), which read as follows:

(1) It shall not be in order in either the House of Representatives or the Senate to consider any bill, joint resolution, amendment, motion, or conference report, as reported to its House, which provides new spending authority described in subsection (c)(2)(C) of this section which is to become effective before the first day of the fiscal year which begins during the calendar year in which such bill or resolution is reported.

Subsection (b)(2).

Pub. L. 105–33, §10116(a)(2)(C) (BEA 1997) substituted “new entitlement authority” for “new spending authority described in subsection (c)(2)(C) of this section” and “of the Senate or may then be referred to the Committee on Appropriations of the House, as the case may be,” for “of that House”.

Subsection (c).

Pub. L. 105–33, §10116(a)(5) (BEA 1997) redesignated subsection (d) as (c).

Pub. L. 105–33, §10116(a)(3) (BEA 1997) struck out subsection (c) which defined terms “new spending authority” and “spending authority”.

The definition for “new spending authority” and “spending authority”, first added by section 211 of the Balanced Budget and Emergency Deficit Control Act of 1985, read as follows: 

(c) Definitions.—

(1) For purposes of this section, the term ‘new spending authority’ means spending authority not provided by law on the effective date of this Act, including any increase in or addition to spending authority provided by law on such date.

(2) For purposes of paragraph (1), the term ‘spending authority’ means authority (whether temporary or permanent)—

(A) to enter into contracts under which the United States is obligated to make outlays, the budget authority for which is not provided in advance by appropriation Acts;

(B) to incur indebtedness (other than indebtedness incurred under chapter 31 of title 31 of the United States Code) for the repayment of which the United States is liable, the budget authority for which is not provided in advance by appropriation Acts;

(C) to make payments (including loans and grants), the budget authority for which is not provided for in advance by appropriation Acts, to any person or government if, under the provisions of the law containing such authority, the United States is obligated to make such payments to persons or governments who meet the requirements established by such law;

(D) to forego the collection by the United States of proprietary offsetting receipts, the budget authority for which is not provided in advance by appropriation Acts to offset such foregone receipts; and

(E) to make payments by the United States (including loans, grants, and payments from revolving funds) other than those covered by subparagraph (A), (B), (C), or (D), the budget authority for which is not provided in advance by appropriation Acts.

Such term does not include authority to insure or guarantee the repayment of indebtedness incurred by another person or government.

Subsection (d).

Pub. L. 105–33, §10116(a)(5) (BEA 1997) redesignated subsection (d) as (c).

Subsection (d)(1).

Pub. L. 105–33, §10116(a)(4)(A) (BEA 1997) directed the substitution of “new authority described in those subsections if outlays from that new authority will flow” for “new spending authority if the budget authority for outlays which result from such new spending authority is derived”. This amendment was executed by making the substitution for “new spending authority if the budget authority for outlays which will result from such new spending authority is derived” in introductory provisions to reflect the probable intent of Congress.

Subsection (d)(2) and (3).

Pub. L. 105–33, §10116(a)(4)(B), (C), (BEA 1997) redesignated paragraph (3) as (2), substituted “new authority described in those subsections” for “new spending authority” in introductory provisions, and struck out former paragraph (2) which read as follows:

(2) Subsections (a) and (b) shall not apply to new spending authority which is an amendment to or extension of the State and Local Fiscal Assistance Act of 1972, or a continuation of the program of fiscal assistance to State and local governments provided by that Act, to the extent so provided in the bill or resolution providing such authority. 

1990

Subsection (a).

Pub. L. 101–508, §13207(a)(1)(F), substituted “bill, joint resolution, amendment, motion, or conference report” for “bill, resolution, or conference report” and struck out “(or any amendment which provides such new spending authority)” after “subsection (c)(2)(A) or (B) of this section”.

Subsection (b)(1).

Pub. L. 101–508, §13207(a)(1)(G), substituted “bill, joint resolution, amendment, motion, or conference report, as reported to its House” for “bill or resolution” and struck out “(or any amendment which provides such new spending authority)” after “subsection (c)(2)(C) of this section”.

1986

Subsection (d)(1)(B).

Pub. L. 99–514 (section 2) substituted “Internal Revenue Code of 1986” for “Internal Revenue Code of 1954”. Section 2 of this Act (the “Tax Reform Act of 1986”) does not make specific reference to the Congressional Budget Act of 1974 but instead generally updates the references to the Internal Revenue Code of 1954. 

1985 

Subsection (a).

Pub. L. 99–177 (BBEDCA) amended subsection (a) generally, inserting provisions relating to applicability to conference reports.

Subsection (b).

Pub. L. 99–177 (BBEDCA), in amending section 401 of the Budget Act generally, reenacted subsection (b) without change.

Subsection (c).

Pub. L. 99–177 (BBEDCA), in amending subsection (c) generally, added paragraphs (2)(D) and (E).

Subsection (d).

Pub. L. 99–177 (BBEDCA), in amending subsection (d) generally, reenacted paragraphs (1) and (2) without change, and inserted reference to December 12, 1985, in paragraph (3).

Effective Date of 1985 Amendment

The amendment made by Pub. L. 99–177 (BBEDCA) was effective December 12, 1985, and was applicable for fiscal years beginning after September 30, 1985. See section 275(a)(1) of Pub. L. 99–177 (BBEDCA). This section formerly set out as Effective and Termination Dates before its repeal by the Budget Control Act of 2011 (Pub. L. 112–25, title I, §104(a), Aug. 2, 2011, 125 Stat. 246).

Effective Date 

Section 905 of the Congressional Budget Act of 1974 (CBA) (since repealed) originally provided that the Act would take effect on the date of enactment, which was July 12, 1974, with certain exception. CBA provided that this section (Pub. L. 93–344, title IX, §905(c), July 12, 1974, 88 Stat. 331), except as provided in section 906,  would “take effect on the first day of the second regular session of the Ninety-fourth Congress.”.

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[BCR § 131]