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106th Congress Report
1st Session SENATE 106-14
PROVIDING GUIDANCE FOR THE DESIGNATION OF EMERGENCIES AS A PART OF THE
March 15, 1999.--Ordered to be printed
Mr. Thompson, from the Committee on Governmental Affairs, submitted the
R E P O R T
[To accompany S. 557]
I. Purpose of the Bill
The purpose of the bill is to curb the abuse of designating
provisions of legislation as an ``emergency'' in order to
circumvent budget laws.
II. Summary of S. 557
The bill amends the Congressional Budget Act of 1974 to add
a new section 318 regarding emergency legislation. The bill
adds a reporting requirement for the President and Congress to
justify proposed emergency spending and to document whether
proposed emergencies meet five criteria: necessary, sudden,
urgent, unforeseen, and not permanent. If a proposed emergency
does not meet these criteria, then the President and the
Congress must justify why the provision constitutes an
emergency. In addition to this reporting requirement, the bill
provides a point of order in the Senate against any provision
in legislation that is designated as an emergency. If the point
of order is raised and sustained against a provision designated
as an emergency, that provision would be stricken from the
legislation. The point of order can be waived in the Senate by
the affirmative vote of a simple majority.
III. Background and Need for Legislation
The Budget Enforcement Act (BEA) of 1990 amended the
Balanced Budget and Emergency Deficit Control Act of 1985 to
require that the cost of appropriations legislation be within
spending limitations and that the cost of all other legislation
satisfy a ``pay-as-you-go'' requirement. If the cost of
legislation does not meet these two requirements, a sequester
order will be issued (an across-the-board spending reduction)
in order to ensure such legislation does not cause an increase
in the deficit.
There was a concern this enforcement regimen could stifle
efforts to provide funding for extraordinary emergencies. As a
result, Congress provided in sections 251(b)(2)(A) and 252(e)
of the Balanced Budget and Emergency Deficit Control Act that
provisions of legislation designated as an emergency
requirement are exempt from the limits on appropriated spending
and the pay-as-you-go requirement. More specifically, if the
President designates a provision as an emergency requirement
and the Congress concurs in statute, then the cost of that
provision of legislation is effectively exempted from the
spending limits and the pay-as-you-go requirement.
The BEA is generally silent as to what constitutes an
emergency--with two exceptions. When the BEA was enacted, it
specifically defined and exempted the incremental costs
associated with the 1990-1991 Persian Gulf War (Operations
Desert Shield and Desert Storm). Second, in 1994, as part of
legislation dealing with crop insurance, Congress amended the
BEA to provide that agriculture crop disaster spending could
not be designated as an emergency requirement.
The question of the definition of emergency spending
immediately became an issue after the BEA's enactment in 1990.
As part of the FY 1992 Dire Emergency Supplemental
Appropriations Act (Public Law 102-55), Congress directed the
Office of Management and Budget (OMB) to prepare a report on
emergencies. On June 27, 1991, OMB submitted a report to
Congress on the cost of domestic and international
emergencies.\1\ in that report, OMB used the following five
elements to define what constituted an emergency:
\1\ Office of Management and Budget, Executive Office of the
President, Report on the Costs of Domestic and International
Emergencies and on the Threats Posed by the Kuwaiti Oil Fires (as
required by P.L. 102-55, June 1991.
necessary expenditure--an essential or vital
expenditure, not one that is merely useful or
sudden--quickly coming into being, not building up
urgent--pressing and compelling need requiring
unforseen--not predictable or seen beforehand as a
coming need (an emergency that is part of an aggregate
level of anticipated emergencies, particularly when
normally estimated in advance, would not be
not permanent--the need is temporary in nature.
Although the BEA was amended in 1993 and again in 1997 to
extend the limits on appropriated spending and the pay-as-you-
go requirement, the provisions regarding emergency spending
were not substantively changed. While major changes have not
been made to the law, there has been a growing concern about
the cost of emergencies. For example, the FY 1995 Emergency
Supplemental Appropriations Act created a Senate task force to
study disaster assistance funding. That task force reported to
the Senate on March 15, 1995.
The Omnibus Consolidated and Emergency Supplemental
Appropriations Act for fiscal year 1999, including $21.4
billion in emergency spending, and represented an unprecedented
use of the exemption for emergency spending. As the table below
illustrates, Congress has consistently provided for emergency
spending since 1990. Nonetheless, the combination of the amount
of money provided and the broad use of the emergency
designation in last year's omnibus appropriations measure was
TABLE 1. OVERVIEW OF EMERGENCY SPENDING, 1991-1999
1991 1992 1993 1994 1995 1996 1997 1998 1999
EMERGENCY SPENDING AMOUNTS
(Millions of dollars budget authority)\1\
Total.......................... 45,846 16,168 6,029 13,860 7,935 5,051 9,536 5,898 21,574
By Type of Spending:
Defense.................... 44,387 7,527 642 1,497 2,448 982 2,077 2,834 7,796
Nondefense................. 1,459 8,641 5,387 12,363 5,487 4,069 7,459 3,064 13,778
By Type of Appropriation:
Regular.................... 1,000 314 878 1,901 1,704 487 2,122 313 21,444
Supplemental \2\........... 44,846 15,854 5,151 11,959 6,231 4,564 7,414 5,585 130
By Type of Designation:
Designated................. 45,846 15,708 5,336 12,942 7,717 5,047 9,236 5,699 13,987
Contingent \3\............. 0 460 693 918 218 4 300 199 7,587
NUMBER OF APPROPRIATION ACCOUNTS THAT CONTAIN EMERGENCY FUNDING
Total.......................... 43 93 59 62 48 61 110 60 104
By Type of Spending:
Defense.................... 37 14 4 10 13 11 15 25 35
Nondefense................. 6 79 55 52 35 50 95 35 69
By Type of Appropriation:
Regular.................... 1 2 5 11 9 7 72 3 103
Supplemental............... 42 91 54 51 39 54 39 57 1
By Type of Designation:
Designated................. 43 85 55 55 45 60 107 56 85
Contingent \3\............. 0 8 4 7 3 1 3 4 19
\1\ The budget authority amounts for 1991 through 1998 differ from those in CBO's June 23, 1998, testimony on
emergency spending because they reflect updates in the categorization and designation of several
\2\ The supplemental amount of 130 million for 1999 represents a 1998 contingent emergency supplemental
appropriation designated as an emergency by the President (and thus made available for obligation) on November
\3\ Appropriation items awaiting emergency designation by the President.
Source: Congressional Budget Office.
IV. Legislative History
1999 (106th Congress)--S. 557 was ordered reported as an
original bill from the Committee on Governmental Affairs on
March 4, 1999 and filed with the Senate on March 8, 1999. The
bill provides a majority vote point-of-order against emergency
On January 6, 1999, Senator Lott on behalf of Senator
Domenici introduced S. Res. 5, a resolution to amend the
Senate's procedures for consideration of emergency legislation.
On January 19, 1999, Senator Domenici introduced S. 93, the
Budget Enforcement Act of 1999. Title II of S. 93 would have
amended the Congressional Budget Act of 1974 to modify
procedures for the consideration of emergency legislation. S.
Res. 5 and title II of S. 93 would have established 5
guidelines (necessary, sudden, urgent, unforeseen, and
temporary) for evaluating emergency proposals and made any
emergency provision subject to 60 vote point of order in the
Senate. S. Res. 5 and title II of S. 93 also provided a 60 vote
point of order against riders on emergency supplemental
appropriations bills. Both S. Res. 5 and S. 93 were jointly
referred to the Committees on Budget and Governmental Affairs.
January 27, 1999--Joint Budget and Governmental Affairs
Committee Hearing: Governmental Affairs Committee Chairman
Thompson and Budget Committee Chairman Domenici chaired a joint
hearing on S. 92, the Biennial Budgeting and Appropriations
Act, and S. 93, the Budget Enforcement Act of 1999. Title II of
S. 93 contained proposed emergency spending reforms.
There were three panels of witnesses:
Panel I--The Honorable John McCain, United States Senator
from Arizona. Senator McCain criticized the current treatment
of emergency spending.
Panel II--The Honorable Benjamin L. Cardin, A
Representative from Maryland and the Honorable Jim Nussle, a
Representative from Iowa. Both witnesses advocated changes to
the current treatment of emergency spending.
Panel III--Timothy J. Muris, Professor, George Mason
University School of Law; Van Doorn Ooms, Senior Vice President
and Director of Research, Committee for Economic Research; and
Martha Phillips, Executive Director, the Concord Coalition.
Mr. Muris testified in favor of reforming the current
treatment of emergency spending. In addition, Ms. Phillips
testified in favor of the proposed emergency spending reform
ii. Committee action
On March 4, 1999, the Committee held a business meeting at
which an original committee bill embodying the text of title II
of S. 93, providing guidance for the designation of emergencies
as a part of the budget process, was considered. Senator
Domenici offered an amendment in the nature of a substitute, on
his behalf and cosponsored by Senator Lieberman and Senator
Thompson, which was approved by voice vote. This substitute
amendment reduced the votes necessary to waive the point-of-
order from a 60-vote requirement to a majority requirement.
Further, the amendment dropped the point-of-order against
riders on emergency supplemental appropriation bills.
An amendment exempting national defense spending form the
majority point-of-order was offered, by Senator Stevens.
Following discussion of the amendment, Senator Stevens withdrew
Following completion of debate on the measure, the
Committee favorably ordered the committee print, as amended, to
be reported by voice vote.
V. Section-by-Section Analysis
Section 1(1) of the bill adds a new section 318 to the
Budget Act to address emergency legislation. Pursuant to
sections 251(b)(2)(A) and 252(e) of the Balanced Budget and
Emergency Deficit Control Act, legislation can be exempted from
the limits on discretionary spending and the pay-as-you-go
requirement for direct spending and revenue legislation if the
President and the Congress designate the spending or revenue
change as an emergency requirement.
The proposed new section (section 318) retains the existing
exemption for emergency legislation, but makes a number of
changes to tighten up the ability for new spending or revenue
losses to be exempt from the spending limitations and the pay-
Section 318(a) essentially provides a new reporting
requirement, directing the President and congressional
committees to analyze whether a proposed emergency meets five
criteria that the Office of Management and Budget first
outlined in a 1991 report to the Congress. That report defined
an emergency as a requirement that was necessary, sudden,
urgent, unforeseen, and not permanent. These criteria are
listed in paragraph (2) of section 318(a). If a proposed
emergency does not meet these criteria, subparagraph (3)
requires the President or the reporting committee to justify
why the proposal constitutes an emergency.
Section 318(b)(1) establishes a new point of order in the
Senate that can be waived by a simple-majority vote (usually 51
votes). This point of order is similar to the point of order
under section 313 of the Budget Act, known as the ``Byrd
rule''. This point of order would lie against a specific
provision of a bill and does not lie against the entire bill.
If the point of order is sustained in the Senate, the provision
is stricken from the bill.
As is the case with other points of order under the Budget
Act, this point of order is not self-executing. A Senator must
challenge a provision and raise a point of order on the floor
of the Senate. The reporting and justification requirements set
forth in section 318(a) do not determine theapplication of this
point of order. Any provision designated as an emergency is subject to
this point of order. Based on the reporting requirements of section
318(a) and the debate on the motion to waive, the Senate will
ultimately decide whether an emergency provision should be exempted
from the spending limitations or the pay-as-you-go requirement.
Section 318(b)(2) provides that a Senator may make a single
omnibus point of order against a number of provisions in the
same manner as is currently permitted by the Byrd Rule (see
section 313(e) of the Budget Act).
Section 318(b)(3) provides that if a point of order is
sustained against a conference report the conference report
will be disposed of in the same manner as is currently
permitted by the Byrd rule (see section 313(d) of the Budget
Section 1(2) of the bill amendments the table of Contents
in section 1(a) of the Budget Act by adding after section 117
``318. Emergency Legislation''.
VI. Regulatory Impact Statement
The enactment of this legislation will not have significant
regulatory impact. S. 557 contains no intergovernmental or
private-sector mandates as defined in the Unfunded Mandates
Reform Act (UMRA) and would impose no costs on state, local, or
VII. Congressional Budget Office Cost Estimate
Congressional Budget Office,
Washington, DC, March 12, 1999.
Hon. Fred Thompson,
Chairman, Committee on Governmental Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 557, a bill to
provide guidance for the designation of emergencies as a part
of the budget process.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mary
Barry B. Anderson,
(For Dan L. Crippen, Director).
S. 557--A bill to provide guidance for the designation of emergencies
as a part of the budget process
Summary: This legislation would impose new controls on
emergency spending and thus could result in savings to the
federal government, but CBO has no basis for estimating the
precise amount. Because S. 557 would not affect direct spending
or receipts, pay-as-you-go procedures would not apply. The bill
contains no intergovernmental or private-sector mandates as
defined in the Unfunded Mandates Reform Act (UMRA) and would
impose no costs on state, local, or tribal governments.
Description of the bill's major provisions: Under the
Balanced Budget and Emergency Deficit Control Act, the
President and the Congress can designate certain spending or
revenue changes as an emergency requirement, thereby exempting
them from the limits on discretionary spending and the pay-as-
you-go rules for legislation affecting direct spending and
revenues. S. 557 would retain the existing exemption for
emergency spending but would impose new restrictions.
Specifically, the bill would direct the President and
Congressional committees to analyze whether a proposal for
emergency spending meets five criteria--that is, whether the
proposed spending or tax change is (1) essential, (2) sudden,
(3) urgent, (4) unanticipated, and (5) temporary. The bill also
would establish points of order in the Senate that, if
sustained, would (1) strike provisions designated as emergency
requirements that fail to meet the five criteria for emergency
spending, and (2) strike nonemergency provisions included in
emergency supplemental appropriation bills.
Estimated cost to the Federal Government: Appropriations
that are designated as emergency spending trigger increases in
the caps on discretionary budget authority and outlays, thus
allowing for greater spending than under the existing caps.
Similarly, reductions in revenues or increases in outlays from
direct spending that are designated as emergencies are not
subject to pay-as-you-go procedures, also allowing for greater
spending or lower revenues than could occur without such
designations. Because S. 557 might make it more difficult for
some provisions to qualify as emergency requirements, it could
reduce the magnitude of emergency spending in the future and
thus lead to larger surpluses or smaller deficits than would
occur under current law.
Almost all emergency spending has been the result of
appropriation action. Annual amounts of budget authority
appropriated for emergency spending have ranged from $5 billion
to almost $46 billion over the 1991-1999 period. However, CBO
has no basis for predicting what emergency designations would
be made in the future, either under current law or under this
bill. Thus, we cannot estimate the savings, if any, that might
result from enacting S. 557.
Pay-as-you-go considerations: None.
Intergovernmental and private-sector impact: The
legislation contains no intergovernmental or private-sector
mandates as defined in UMRA and would impose no costs on state,
local, or tribal governments.
Estimate prepared by: Mary Maginniss.
Estimate approved by: Robert A. Sunshine, Deputy Assistant
Director for Budget Analysis.
VIII. Additional Views of Senator Pete V. Domenici
This bill is designed to curb the increasing abuse of
designating legislation as an ``emergency.'' The Budget
Enforcement Act of 1990 established statutory limits on
appropriated spending and a pay-as-you-go requirement for
revenue legislation and direct spending legislation. That Act
also provided an exemption from these spending limits and the
pay-as-you-go requirement for legislation that was designated
as an emergency. Designating provisions of legislation as an
emergency allows the President and the Congress to skirt the
limits on appropriated spending and the pay-as-you-go
requirement for direct spending and revenue legislation.
This emergency exemption for legislation has become a
loophole to tap the budget surplus for all kinds of spending.
In his 1998 state of the union address, the President pledged
that every penny of any surplus should be saved until Social
Security is reformed. While the subsequent debate has focused
on tax reductions and the surplus, few realize that since the
President's pledge we have already spent $27 billion of the
surplus by designating legislation as an ``emergency.'' The FY
1998 Emergency Supplemental Appropriations Act included $5.7
billion in emergency appropriations and the FY 1999 Omnibus
Consolidated and Emergency Supplemental Appropriations Act
provided $21.4 billion in emergency appropriations.
My original proposal, title II of S. 93, would have made
any provision designated as an emergency subject to a 60 vote
point of order in the Senate. When I was developing this
proposal, some advocated that we should repeal the emergency
exemption in its entirety. Others suggested that we should only
exempt the first year's cost of legislation. I rejected these
two approaches because I believe we need to have some way to
quickly and fully respond to extraordinary emergencies without
violating our budget laws.
Although I still believe my original proposal was a
reasonable way to curb the misuse of the emergency designation,
it did not have the support of a majority of the Governmental
Affairs Committee. With the assistance of the Chairman, Senator
Thompson, and the ranking member, Senator Lieberman, we were
able to develop a proposal that would enjoy the support of the
committee. I felt it was crucial to get this bill to the floor
so that the debate regarding the budgetary treatment of
emergencies would continue. I particularly appreciate Senator
Lieberman's efforts to gain adoption of this proposal. This
modified approach as reported by the committee may be
sufficient to curb the abuse of emergency spending and I will
study it further. As I made clear when we developed this
compromise, however, I reserve the right to offer or support an
amendment that would raise the threshold to 60 votes to waive a
point of order against emergency spending.
Pete V. Domenici.
IX. Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill, as reported are shown as follows:
The Congressional Budget Act of 1974 is amended (1) by
adding the following new section at the end of title III:
SEC. 318. EMERGENCY LEGISLATION.
(1) Guidance.--In making a designation of a provision
of legislation as an emergency requirement under
section 251(b)(2)(A) or 252(e) of the Balanced Budget
and Emergency Deficit Control Act of 1985--
(A) the President shall submit a message to
the Congress analyzing whether a proposed
emergency requirement meets all the criteria in
paragraph (2); and
(B) the committee report, and any statement
of managers if any, accompanying that
legislation shall analyze whether a proposed
emergency requirement meets all the criteria in
(A) In general.--The criteria to be
considered in determing whether a proposed
expenditure or tax change is an emergency
requirement are whether it is--
(i) necessary, essential, or vital
(not merely useful or beneficial);
(ii) sudden, quickly coming into
being, and not building up over time;
(iii) an urgent, pressing, and
compelling need requiring immediate
(iv) subject to subparagraph (B),
unforeseen, unpredictable, and
(v) not permanent, temporary in
(B) Unforeseen.--An emergency that is part of
an aggregate level of anticipated emergencies,
particularly when normally estimated in
advance, is not unforeseen.
(3) Justification for failure to meet criteria.--If
the proposed emergency requirement does not meet all
the criteria set forth in paragraph (2), the President,
the committee report, or the statement of managers, as
the case may be, shall provide a written justification
of why the requirement should be accorded emergency
(b) Point of Order.--
(1) In general.--When the Senate is considering a
bill, resolution, amendment, motion, or conference
report, upon a point of order being made by a Senator
against any provision in that measure designated as an
emergency requirement pursuant to section 251(b)(2)(A)
or 252(e) of the Balanced Budget and Emergency Deficit
Control Act of 1985 and the Presiding Officer sustains
that point of order, that provision along with the
language making the designation shall be stricken from
the measure and may not be offered as an amendment from
(2) General point of order.--A point of order under
this subsection may be raised by a Senator as provided
in section 313(e).
(3) Conference reports.--If a point of order is
sustained under this subsection against a conference
report the report shall be disposed of as provided in
section 313(d).; and
(2) in the table of contents in section 1(a), by adding
after the item for section 317 the following:
318. Emergency legislation.