August 10, 1976
Page 26636
Mr. MUSKIE. I want to make the record clear regarding one other technical point of order that could be raised against S. 3735 under the Budget Act. As the attached staff memorandum concludes, the new entitlement included in S. 3735 does not contain an October 1 effective date.
Under section 401(b) (1) of the Budget Act, new entitlements cannot become effective prior to the beginning of the new fiscal year in order to subject them to the scrutiny of the second concurrent budget resolution and any necessary reconciliation. In this case, however, it seems inadvisable to raise this point of order against S. 3735 for the following reasons:
First of all, the vaccination program is not expected to begin before October 1, and so practically speaking, no claims can arise before the new fiscal year begins. Second, the entitlement is a one-shot, not long-term Federal program. For Congress to pass the bill now and repeal it as part of the reconciliation process 5 weeks from now after substantial preparation has begun would be rather counterproductive. Thus, no purpose can be served by raising this section 401 point of order except to frustrate the program by insisting on an October 1 date.
I do, however, want to remind my colleagues of section 401(b) of the Budget Act and its requirement that new entitlements not become effective before the beginning of the new fiscal year in order to preserve effective congressional review of these programs in the second concurrent resolution on the budget. This case, however, presents an urgent and limited program, which might be frustrated by an insistence on an October 1 effective date.
I ask unanimous consent that the memorandum may be printed in the RECORD.
There being no objection, the material was ordered to be printed in the RECORD, as follows:
MEMORANDUM
Subject: Effective date of the National Swine Flu Immunization program of 1976.
ISSUE: Is legislation making the United States liable with respect to claims submitted after October 1 for personal injury or death arising out of the administration of swine flu vaccine subject to a point of order under Section 401(b) (1) of the Budget Act?
SUMMARY
Such legislation would be subject to a point of order under Section 401(b) (1) of the Budget Act because new entitlements cannot "become effective" prior to October 1 in order for the new entitlement to remain subject to the Second Concurrent Resolution on the Budget and any reconciliation, if necessary. But if the event which gives rise to the legal obligation of the United states occurs prior to October 1, then even if the claim can't be filed until after the fiscal year begins, the entitlement is effective prior to October 1.
DISCUSSION
S. 3735, the "National Swine Flu Immunization Program of 1976", as reported contains a Section (2) (A) which states:
(2) (A) The United States shall be liable with respect to claims submitted after September 30, 1976, for personal injury or death arising out of the administration of swine flu vaccine under the swine flu program and based upon the act or omission of a program participant in the same manner and to the same extent as the United States would be liable in any other action brought against it under such Section 1346(b) ... (See attachment A. Emphasis added)
This section of the act creates new entitlement authority under Section 401(c) (2) (C) of the Budget Act which defines new entitlement authority as the authority:
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. (Section 401(c) (2) (C) ).
S. 3735 is therefore subject to the procedures contained in Section 401(b) (1) of the Budget Act concerning new entitlements.
This section of the Budget Act provides that it shall not be in order in the House or the Senate "to consider any bill or resolution which provides new spending authority described in subsection (c) (2) (C) (or any amendment which provides such new spending authority) which is to become effective before the first day of the fiscal year which begins during the calendar year in which said bill or resolution is reported."
Under this section of the Budget Act, therefore, the above entitlement contained in S. 3735 would be subject to a point of order unless modified to provide for an effective date for the entitlement of October 1, 1976.
The language of this section of S. 3735 appears to do nothing more than defer the payment of such claims until the new fiscal year, rather than give the Congress the opportunity to reconsider, in its reconciliation process, whether such claims should become effective at all.
Section 401(b) (1) of the Budget Act was specifically included in the Act to insure that new entitlements would be subject to the reconciliation process prior to the beginning of the new fiscal year. As the joint explanatory statement of managers accompanying the conference report stated, "the purpose of this procedure is to make entitlements effectively subject to the reconciliation process." (Senate Report 93-924, page 65.)
This provision of the Budget Act was taken directly from Section 401(b) (1) of S. 1541 as reported by the Senate Rules Committee. In their report on S. 1541, the Senate Rules Committee explained that this procedure concerning the effective dates of new entitlements was necessary for the following reasons:
The requirement of entitlement legislation not be effective until the beginning of the fiscal year following its enactment is intended to allow for rescission, prior to the effective date, of some portion of the entitlement authority provided should Congress so elect through the vehicle of the second required budget resolution. (Senate Report 93-688, page 57.)
Therefore, any new entitlement which is effective prior to October 1, 1976, would effectively circumvent scrutiny through the Second Concurrent Resolution on the Budget or any necessary reconciliation process. The legal obligation of the United States under S. 3735 may arise prior to October 1, 1976, even with the language limiting the submission of claims, since inoculations under the program could occur prior to October 1, 1976, and therefore, liability of the United States could arise prior to October 1, 1976.
The entitlement section, as reported, would provide that "the United States shall be liable with respect to claims submitted after October 1, 1976, for personal injury or death arising out of swine flu vaccine under the swine flu program ... " (Emphasis added.)
Since the inoculation program could begin prior to October 1, 1976, claims for personal injury or death arising out of the administration of the vaccine program could clearly "vest", or become effective prior to October 1, 1976. The language merely sets the method of filing these claims by delaying them until October 1, 1976; it does not limit the effective date of the entitlement itself.
ATTACHMENT A
Proposed language for (2) (A) of S. 3735 as reported by Senate Labor and Public Welfare:
"(2) (A) The United States shall be liable with respect to claims submitted after September 30, 1976, for personal injury or death arising out of the administration of swine flu vaccine under the swine flu program and based upon an act or omission of a program participant in the same manner and to the same extent as the United States would be liable in any other action brought against it under such section 1346(b) and chapter 171 ...