[Congressional Record Volume 156, Number 153 (Monday, November 29, 2010)]
[Senate]
[Pages S8219-S8226]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   FDA FOOD SAFETY MODERNIZATION ACT

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will resume consideration of S. 510, which the clerk will 
report.
  The assistant legislative clerk read as follows:

       A bill (S. 510) to amend the Federal Food, Drug, and 
     Cosmetic Act with respect to the safety of the food supply.

  Pending:

       Reid (for Harkin) amendment No. 4715, in the nature of a 
     substitute.

  The ACTING PRESIDENT pro tempore. The Senator from Nebraska.
  Mr. JOHANNS. Mr. President, I do not see Senator Baucus in the 
Chamber, so I will go ahead and get started. My understanding is we 
will be going back and forth. So I will finish my opening remarks, and 
then if he arrives I will yield to him.
  In just a few hours Senators are going to have a distinct choice. Two 
amendments will be offered to repeal what I think we have all come to 
regard as a very nonsensical tax paperwork mandate that was included in 
the health care reform bill.
  There is broad agreement the 1099 repeal is necessary to remove 
Federal roadblocks to job creation. But today we have a choice on the 
two amendments. Today's choice comes down to what I regard as a very 
straightforward choice, a choice relative to fiscal responsibility, and 
it is illustrated by the chart I have in the Chamber.
  My amendment fully offsets the cost of the 1099 repeal. The 
alternative Baucus amendment piles $19 billion of debt onto the backs 
of future generations. The irony of this is just unmistakable. On one 
hand, we have a provision in the health care law that we have all come 
to regard as crazy, foolishness. Even the President has said it does 
not make any sense--or words to that effect.
  On one hand, to repeal it, we are adding to the debt of future 
generations.

[[Page S8220]]

On the other hand, my amendment fully offsets that cost.
  Americans have sounded an alarm regarding Washington's out-of-control 
spending. They demand we address what is a huge $14 trillion debt. They 
look at their Federal Government in disbelief when they see Washington 
continuing to spend money we simply do not have.
  Yet the alternative amendment proposes to do more of the same. It 
does not have a single offset. It simply passes the buck, and in this 
case it passes the buck to our children and grandchildren.
  Now, both amendments, as you can see from the chart, repeal the 1099 
requirement. But in the case of the Johanns amendment, it repeals the 
1099 requirement without adding a single penny to our deficit or to the 
cost of the health care bill.
  It also has taken care of the issue of the controversial offsets. As 
my colleagues remember, I listened in September when many came up to me 
and said: Look, I am with you on repealing this 1099 provision. My 
small businesses are asking me to get it repealed. But I just cannot go 
along with your offsets. Well, my new 1099 amendment uses unspent and 
unobligated funds from Federal accounts to fully pay for the repeal.

  At the end of every year, there is money left in the accounts of 
Federal agencies that is not obligated. As someone who was a Cabinet 
official in a previous life, I can tell you that occurs. My amendment 
boils down to using about 5 percent of these funds--5 percent.
  Additionally, the amendment I am offering gives the Office of 
Management and Budget the ability to decide what programs to pull funds 
from and in what amounts. This approach is far better than an across-
the-board cut, and it allows important programs to continue to be 
funded.
  Some are probably going to argue: Whoa, this is historic. This has 
never been done before. But I want to assure my colleagues, it has been 
done repeatedly.
  If my colleagues choose the alternative amendment in a few hours, 
then the public demand for fiscal responsibility will have fallen on 
deaf ears. In September, when the Senate first voted down my 1099 
amendment, the concern was about the source of the offsets. It was the 
health care bill, and many said to me: Look, I am with you, but I 
cannot go along with these offsets. So we changed them. But back then, 
no one--no one--argued that we simply did not need to pay for the 
repeal. No one argued that. Yet today the Baucus alternative amendment 
proposes no pay-fors, adding $19 billion to the national debt, without 
a dime of budgetary offsets.
  So after all the hoopla about pay as you go, there is not a single 
budgetary offset to cover the cost of this amendment. So I urge all of 
my colleagues to vote for the fully offset Johanns amendment. It will 
be a vote to protect our job creators. It will be a bipartisan vote 
because we have all come to agree that this 1099 provision does not 
make any sense. And, most importantly, when we talk to our constituents 
about how we did this, we will be able to clearly tell them we paid for 
it, we took care of the cost of repealing the 1099 amendment with 
offsets that were a compromise to try to get this done and get this 
behind us.
  Several of my colleagues also want to speak on this issue, so I am 
going to yield 5 minutes of my time to Senator Enzi, followed by 5 
minutes to Senator Thune, 5 minutes to Senator Brown, and 5 minutes to 
Senator Hutchison. So I yield to Senator Enzi.
  The ACTING PRESIDENT pro tempore. The Senator from Wyoming.
  Mr. ENZI. Mr. President, I rise today to speak about the Johanns 
amendment that would repeal a provision in the health care reform law 
that, if not repealed today, will impose significant burdens on small 
businesses across this country.
  Repealing this provision has the support of many of my colleagues on 
both sides of the aisle. Even the President has commented that this 
provision is onerous on small businesses and warrants immediate 
adjustment.
  Starting in 2012, the new health care law will require that all 
businesses purchasing $600 or more in property or services from another 
entity, including corporations, must provide the vendor and the 
Internal Revenue Service with a tax information return. This new 
government mandate will impose significant burdens on both small and 
large businesses, and taxpayers' costs will increase as a result of 
accumulating the information and preparing the tax forms necessary to 
comply with this expanded mandate.
  Imagine if you are a freelance writer and you buy a new laptop. Well, 
now you have to send form 1099 to Apple and to the IRS or be labeled a 
tax cheat. Oh, and you will need the Apple taxpayer identification 
number too, so do not forget to ask the salesman for that.
  This new reporting requirement hits small businesses hardest because 
they typically do not have in-house accounting departments and have to 
hire outside help. Every penny a small business spends on these 
services is money they cannot spend on hiring new workers and expanding 
their business. Every hour a small business owner spends filling out 
these new tax forms is time he or she is not making a sale, 
manufacturing a product, or working with a customer.
  I understand the challenges this can create for small business. 
Before I came to the Senate, my wife and I owned shoe stores in 
Wyoming. When you own a small business, you have to be the CEO, the 
bookkeeper, the salesman, and the person who cleans the bathroom.
  Every hour I spent filling out government-mandated paperwork was an 
hour I could not spend selling shoes. Government mandates such as the 
new 1099 requirement have a real cost, and it is small businesses that 
will end up having to pay them.

  This new 1099 reporting requirement is just one of many things in the 
new health care reform law that need to be reexamined immediately. Our 
small businesses need to be focused on creating jobs and helping our 
economy recover, not spending countless hours on new government 
paperwork burdens.
  We all would do well to remember the claims of the sponsors of the 
health care reform law who said this new law would actually reduce the 
Federal deficit. Most Americans didn't believe those claims when they 
were made, and today they are seeing the first evidence of their 
falsity.
  Today, when confronted with the nationwide opposition to this ill-
conceived expanded information reporting policy, one of the leading 
proponents of the new health care law in the Senate is offering an 
amendment that will eliminate it, but it eliminates the revenues it 
produces. More importantly, his amendment makes no attempt to pay for 
the lost revenues. That means his amendment will further increase the 
Federal deficit.
  While this may be the first time we see this, it certainly will not 
be the last. The funding for the entire health care law was built on a 
fiction of cost estimates and actuarial assumptions. As each of these 
provisions confronts the harsh reality of the light of day, we will see 
more and more of these provisions undone in the coming years. When 
millions of seniors across the country lose existing Medicare benefits 
and face escalating out-of-pocket costs, there will be an urgent push 
to restore these benefits. When hospitals, nursing homes, and home 
health agencies begin to close their doors because Medicare payment 
rates cause them to operate at a loss, Congress will move to undo those 
cuts, at a cost to the deficit. When the new insurance benefits are 
slashed as a result of formula gimmicks that will force automatic 
reductions in benefits, I suspect many of the supporters of the new law 
will argue for the urgent necessity of delaying these cuts.
  We can make a statement right now to America's small businesses that 
we want them creating more jobs, hiring new employees, and growing 
their businesses--not worrying about what Washington will require of 
them next. Let's tell our small business men and women that we stand 
behind them, not on top of their backs, and let's repeal this new tax 
paperwork burden in a fiscally responsible way.
  Mr. President, I yield the floor and reserve the remainder of the 
time.
  The ACTING PRESIDENT pro tempore. The Senator from Montana.
  Mr. BAUCUS. Mr. President, at 6:30 this evening, the Senate will vote 
on

[[Page S8221]]

the motion to invoke cloture on the substitute amendment to the food 
safety bill. Under a previous order, once cloture is invoked, there was 
to be up to 60 minutes of debate on competing motions to suspend rule 
XXII offered by Senator Johanns and myself. I understand that the two 
leaders intend to propound an agreement that would provide for the 
Senate to vote on our two motions immediately after the cloture vote 
this evening. So Senators should be on notice that there may be three 
back-to-back votes beginning at 6:30.
  The Senator from Nebraska and I share a common goal. We both want to 
repeal some IRS reporting requirements scheduled to take effect in the 
year 2012. Each of our two motions would allow consideration of an 
amendment to prevent the expansion of those IRS reporting rules. Thus, 
each of our two amendments would help small businesses across America. 
How? By repealing these burdensome paperwork requirements.
  But there are two big differences between our two amendments. First, 
my alternative is especially friendly to small businesses. It takes 
extra measures to permit the IRS to waive certain duplicative reporting 
requirements that small businesses now must experience; that is, the 
small businesses that use credit cards to pay their bills. My 
alternative goes further and gives more relief to small businesses. 
Second, our two versions differ as far as paying for the change. The 
alternative offered by my colleague from Nebraska would give the 
unelected Director of OMB unprecedented authority to slash spending all 
on his own. The Johanns alternative would thus abdicate Congress's 
responsibility over the budget. For these reasons, I urge my colleagues 
to oppose the Johanns amendment and support my alternative.
  First, let me talk about what we have in common. Each of our two 
amendments is designed to get rid of a set of rules that requires 
reporting to the IRS. Many have referred to these rules as the ``1099 
provision.'' That is because these new rules would require filing more 
IRS forms numbered 1099. These rules would impose new paperwork burdens 
and costs on small businesses, and these burdens would fall on small 
businesses just as they are struggling to emerge from the great 
recession. The new rules expand existing information reporting to the 
IRS to include payments that businesses make to corporations and 
payments they make for goods and property.
  As I travel around my home State of Montana, I listen to small 
business owners such as Darrell Keck. Darrell owns the Dixie Inn in 
Shelby, MT. Darrell and his wife Jeanne run a tight ship. They are hard 
working. They pay their taxes. Darrell told me that he and his wife 
just do not have the manpower or the software to make the new reporting 
rules work. And Darrell and his wife Jeanne run just one business of 
the many mom-and-pop businesses in Montana that have told me this. I 
daresay most of the Members of this body hear the same things I hear as 
they travel. I have listened to small businesses. I have heard them. I 
am responding to small businesses by offering this amendment. My 
amendment would fully repeal the new reporting requirements--fully.
  My amendment also responds to the concerns of owners of rental 
property. Some of these owners were concerned about their ability to 
comply with new rental expense information reporting rules included in 
the small business bill which Congress enacted just this last 
September. My amendment would scale back those rules. My amendment 
would apply the same rules to rental expense reporting as would apply 
to all businesses.
  Now let me turn to the differences between my amendment and the 
Johanns amendment.
  First, my amendment includes another feature that would further 
reduce the paperwork burdens on small businesses. My amendment would 
grant the Secretary of the Treasury the authority to issue regulations 
to avoid duplicative reporting. The Treasury has issued guidance under 
similar authority to allow small businesses that use credit cards to 
forgo reporting expenses they pay with their credit cards. Under this 
new guidance, to the extent small businesses use their credit cards to 
pay service vendors, they would actually have even less compliance 
burden than they did under the old law; that is, before the new 
requirement.
  The competing amendment offered by my colleague from Nebraska would 
repeal the Treasury's authority to make rules to avoid duplicative 
reporting. It would repeal it. Doing so would thus risk placing undue 
and unnecessary paperwork burdens on small businesses that use credit 
cards to pay their bills.
  So my alternative is especially friendly to small businesses. It 
takes extra measures to permit the IRS to waive duplicative reporting, 
especially those requirements for small businesses that use credit 
cards.
  The second main difference between our two amendments is the offset 
in the Johanns amendment--and this is a big one. The Joint Tax 
Committee estimates that the tax law changes in the Johanns amendment 
would cost about $22 billion.

  The Johanns amendment also includes a cut of $39 billion in 
appropriated funds, to be determined by the Office of Management and 
Budget. The Johanns amendment cuts about twice what it needs to do to 
pay for the repeal of the reporting requirements. As a matter of 
dollars and cents, the Johanns amendment is mostly about cutting 
appropriated spending. That is what it really is. So it is not about 
repealing the reporting requirement. To make these spending cuts, the 
Johanns amendment would give the unelected Director of OMB 
unprecedented authority to determine the source of this funding, and 
that would abdicate congressional responsibility over the budget.
  The Joint Tax Committee estimates that my amendment would cost about 
$19 billion. That is a little less than the tax part of the Johanns 
amendment. But my amendment does not include an offset. These days, 
finding a $19 billion offset that can get 67 votes is pretty close to 
impossible. We have spent much of this year haggling over one offset or 
another. My amendment tries to avoid that.
  We are talking about a paperwork requirement that has not yet even 
taken effect and, in fact, will not take effect, if not repealed, until 
the year 2012. Let's just repeal this reporting requirement. Let's just 
get it done. Let's just repeal it lock, stock, and barrel. Let's just 
get it done and not do all of these extra, other things which really 
are not good policy.
  The IRS has used form 1099 for decades to better track income, but 
the new reporting rules just went too far. The time that it spends for 
small businesses to comply with the new rules far exceeds any benefit.
  Especially in these tough economic times, now is not the time to put 
additional stress on small businesses to meet complicated government 
rules. Rather, now is the time to eliminate this paperwork burden. 
Small businesses are the backbone of the American economy. That is 
especially true in Montana. In Montana, a greater share of workers work 
in small businesses than in any other State in the country--a greater 
proportion than in any other State in the country. Business owners need 
to focus their efforts on growing their businesses and creating jobs, 
not filling out paperwork.
  Small businesses in Montana and across America want to comply with 
tax laws, but these new rules stretch their ability to do that. It just 
went too far. I urge my colleagues to support their full repeal. But 
let's not hand over a blank check to the OMB Director to slash $39 
billion wherever he wants. That part of the Johanns amendment also goes 
too far. So I urge my colleagues to help small businesses. I urge my 
colleagues to avoid sweeping delegations of power to an unelected OMB 
Director. Thus, I urge my colleagues to oppose the Johanns amendment 
and support the Baucus amendment when it comes up for a vote this 
evening.
  Mr. President, I have a unanimous consent request which I understand 
has been cleared on both sides.
  I ask unanimous consent that the agreement with respect to S. 510 be 
modified as follows:
  That after the cloture vote at 6:30 p.m. today, and if cloture is 
invoked, then all debate time with respect to the Johanns and Baucus 
motions be considered expired; Senator Johanns be recognized to offer 
his motion to suspend; that once the motion has been

[[Page S8222]]

made, Senator Baucus then be recognized to offer his motion to suspend; 
that once made, the Senate then proceed to vote with respect to the 
Johanns amendment to suspend; that upon disposition of that motion, the 
Senate then proceed to vote with respect to the Baucus motion to 
suspend; that upon disposition of those two motions, Senator Coburn 
then be recognized as provided for under the order of November 18 and 
19; that all debate time with respect to the Coburn motion be utilized 
during today's session; that at 9 a.m. Tuesday, November 30, after the 
prayer and the pledge and any leader time, the Senate then resume 
consideration of S. 510 with 2 minutes of debate, equally divided and 
controlled between Senators Coburn and Inouye, prior to the vote in 
relation to the Coburn motion regarding earmarks, No. 4697; that upon 
disposition of that motion, there be 2 minutes of debate equally 
divided and controlled in the usual form; that the Senate then proceed 
to vote with respect to the Coburn motion regarding the substitute 
amendment No. 4696; further, that any other provisions of the previous 
order remain in effect; provided further that prior to passage of the 
bill, the Budget Committee pay-go statement be read into the record; 
further, that after the first vote today and tomorrow, the succeeding 
votes be limited to 10 minutes each; and that prior to the succeeding 
votes tonight, there be 2 minutes equally divided and controlled in the 
usual form.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Mr. INHOFE. Reserving the right to object.
  The ACTING PRESIDENT pro tempore. The Senator from Oklahoma.
  Mr. INHOFE. Mr. President, it is my intention that I be heard tonight 
concerning some of the amendments to be voted on tomorrow. It is my 
understanding further that Senator Enzi from Wyoming has the time 
between 5:30 and 6 o'clock. I request that I be recognized for 15 
minutes during that timeframe.
  Mr. BAUCUS. Reserving the right to object, Mr. President, may I 
further amend that request to provide that after the swearing in of 
Senator-elect Kirk, the time be equally divided until 6:30 p.m. this 
evening, and that the Senator from Oklahoma be recognized to speak for 
15 minutes, and the time to be divided between the two leaders or their 
designees.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Mr. INHOFE. What time will that be approximately, right after the 
vote or before?
  Mr. BAUCUS. Before.
  Mr. INHOFE. Before. No objection.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The Senator from South Dakota is recognized.
  Mr. THUNE. Mr. President, I ask unanimous consent to be added as a 
cosponsor of the Johanns amendment No. 4702 to S. 510, the Food Safety 
Modernization Act.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. THUNE. Mr. President, I compliment the Senator from Nebraska for 
his leadership on this issue. He has done a great job advocating on 
behalf of small businesses, farmers, ranchers, and all the people to be 
impacted by this onerous provision in the health care bill.
  I fear this is something we are going to be doing and repeating quite 
frequently in the years ahead as more Americans find out what is in the 
Democrats' health care bill. This is egregious because it requires 
various entities to send suppliers 1099 forms if they engage in 
business-to-business transactions totaling more than $600 in a single 
year.
  While I believe everyone ought to pay their fair share of taxes, I am 
concerned that the burden of compliance falls not on the tax 
delinquents but instead on the countless businesses, churches, local 
governments, and nonprofits that pay their taxes on time and in full or 
may not even have a tax liability.
  This means these entities will have less time to fulfill their core 
missions, whether that is building products, administering to the poor, 
helping students learn or building local infrastructure. Instead, they 
are going to be filling out form after form to become compliant with 
this measure.
  Because of the heavy compliance costs associated with this measure, 
its repeal is supported by a wide variety of business organizations and 
agricultural organizations across the country, including the Chamber of 
Commerce, National Federation of Independent Business, and the American 
Farm Bureau, to name a few.
  It is not just national organizations that I have heard from. In 
numerous constituent meetings across South Dakota, I have heard from 
the citizens of South Dakota, whether they be farmers, ranchers, small 
businesses, CPAs, and others, about the effect this measure would have 
on them, their businesses, and their employees.
  While this requirement is not set to take effect until next year, I 
believe it is important we act now to give these types of entities 
certainty that they will not have to take steps to comply with this 
measure.
  I add that our government now has a debt that is approaching $14 
trillion, and we need to do everything we can to make sure that debt 
does not increase. It is a debt that we continue to pile on more and 
more and hand to the next generation of Americans.
  Because of that concern, I am pleased this amendment is fully offset 
by rescinding unspent Federal funds. The Senator from Nebraska came up 
with a way, through rescinding unspent Federal funds, to offset this 
amendment in a commonsense way. Of course, it excepts the Department of 
Defense and Department of Veterans Affairs, which will protect our 
national security interests and those who have served our country. I 
believe the rescissions he calls for in unspent Federal funds are a 
good way to make sure this doesn't add to our debt. This amendment 
perfectly captures that belief, and I think it is a belief that is 
shared by many of my colleagues in the Senate and by citizens across 
this country.
  We need to be focused on bringing down our debt, and we will start 
doing that by eliminating government spending, not putting new, 
burdensome requirements on businesses and charities.
  Unfortunately, there were numerous other provisions in the health 
care bill and other bills in the past 2 years which shifted the burden 
onto small businesses and employers. We will have to revisit each of 
those to ensure they don't slow economic growth and job creation, which 
is what the people want us to be focused on now.
  I hope we can take this first step and support the Senator from 
Nebraska on his amendment, which addresses this critical issue, this 
egregious provision that puts a costly burden on small businesses, and 
do it in a way that is fiscally responsible and doesn't add to the debt 
and burden future generations with more debt.
  I think the Senator from Nebraska came up with a great solution. I 
hope colleagues on both sides of the aisle--Republicans and Democrats--
who have heard, as I have, from their constituents will take this very 
commonsense amendment and pass it with a big margin. Let's get this 
particular provision in the health care bill repealed and the negative 
impact it would have on economic growth and job creation in this 
country.
  With that, I withhold the remainder of my time.
  The ACTING PRESIDENT pro tempore. The Senator from Hawaii is 
recognized.
  Mr. INOUYE. Mr. President, the amendment offered today by Senator 
Johanns proposes to rescind unobligated balances of appropriated funds 
that are designated for specific purposes in various appropriations 
bills previously enacted by Congress. The Senator offers these 
rescissions in order to offset the loss of revenues resulting from his 
amendment.
  Much like similar amendments offered in the past, this amendment 
simply provides for a generic rescission of funds, with the authority 
and decision-making for which programs are impacted delegated entirely 
to the executive branch.
  Consideration of this amendment is the first of two attempts this 
evening to shift the power of and responsibility for the Nation's purse 
strings from the legislative branch to the executive branch.
  Rescinding funds in this manner, should this amendment be adopted,

[[Page S8223]]

may be politically expedient because it simply cites a dollar figure, 
but it is also reckless and irresponsible, and hides the accountability 
for future actions when legitimate programs are shut down.
  Mr. President, we should make no mistake about it, an across the 
board cut is the legislative equivalent of performing surgery with a 
meat cleaver, and Senators would be right to reject the amendment for 
this reason alone.
  I can assure my colleagues that if this amendment passes, the impact 
will be felt throughout this country, and the arbitrary nature of the 
cuts will only intensify the pain.
  Why do I know this? Because for the past several months Senator 
Cochran and I have instructed our staffs to scrub the books of every 
single Federal agency in order to fund Pell Grants, while at the same 
time maintaining the discretionary spending level for fiscal year 2011 
proposed by Senators Sessions and McCaskill.
  Even after reviewing in great detail unobligated balances across all 
the agencies and rescinding those funds that were truly unobligated 
balances, we still have to cut spending for fiscal year 2011 in order 
to pay for Pell Grants to the level at which almost everyone in this 
Chamber desires that it be funded.
  Consequently, the only unobligated balances remaining are those in 
accounts that have slow spend rates such as construction and 
infrastructure accounts. To rescind $39 billion from these remaining 
accounts without congressional guidance, and without any analysis of 
the ultimate costs and benefits, is simply irresponsible.
  Throughout this past year, every time an amendment similar to this 
one has been offered, I and my colleagues on the Appropriations 
Committee have come to the Floor and provided real examples of real 
programs that would be impacted by such an amendment. While I will not 
go into such detail tonight, I will take a moment and give Members a 
sense of which agency accounts have unobligated balances:
  International narcotics control and law enforcement programs that 
provide police training and counter-drug programs in Afghanistan, 
Pakistan, Mexico and Colombia, among others.
  Global Health and Child Survival, which impacts global HIV/AIDS, 
malaria, TB, polio and other programs.
  The State Department's worldwide security program, including funding 
for requirements in Iraq, again impacting our embassy and personnel 
security costs worldwide.
  Coast Guard construction of ships and planes, including the National 
Security Cutter, the Maritime Patrol Aircraft, and Fast Response 
Cutters.
  Funds to maintain and upgrade the southwest border fence in Arizona 
and California.
  The FEMA Disaster Relief Fund which is still paying for Katrina, 
Rita, Gustav and Ike.
  Cyber security investments to secure Federal information systems.
  Funds to procure and install TSA advanced imaging technology and 
other explosive detection systems.
  Funds to build border patrol stations in Texas, Arizona, California 
and Washington.
  Funds to build schools and hospitals under the Bureau of Indian 
Affairs and Indian Health Services.
  The $500 million in non-emergency unobligated fire suppression funds 
remaining in the Forest Service and Interior Wildland Fire accounts is 
the minimum needed to make sure there are enough funds available in 
case the fire season turns out to be worse than forecast.
  Section 8 tenant-based and Section 8 project-based rental assistance. 
These programs receive advanced appropriations to run through the end 
of the calendar year. If these funds were rescinded, there would be no 
funding to continue to provide housing for low-income families living 
in housing today.
  In the case of homeless assistance grants, there is a time-consuming 
competitive process that communities go through in order to get these 
funds. Accordingly, these programs have unobligated funds.
  If these funds were rescinded, existing homeless programs in 
communities across the country wouldn't have sufficient funds to 
continue serving the homeless--literally leaving people on the streets.
  And finally, as one would imagine, Corps of Engineers construction 
projects as well as funding for flood control and coastal emergencies 
have substantial unobligated balances.
  Supporters of the Johanns amendment may claim that I and my 
colleagues on the Appropriations Committee are simply citing the worst 
case scenario of where unobligated balances may come from. The fact of 
the matter is that these accounts are exactly where the unobligated 
balances will come from.
  Let me also point out to my colleagues that if this amendment is 
enacted, we cannot stop rescissions of unobligated balances from any of 
the accounts mentioned because the amendment gives sole decision-making 
power regarding where to cut to the executive branch.
  Unlike the situation with deciding how to fund the FY 2011 ominibus, 
where Ranking Member Cochran and I, along with our committee members, 
decided after much scrutiny of accounts which unobligated balances were 
truly available for rescission, this amendment places all authority 
with the executive branch.
  Mr. President, this amendment is not the way to do business. This is 
certainly not the way to fund the Federal Government. We need to stop 
trying to shift our fiscal responsibilities to the executive branch. We 
need to stop claiming there is an excess in Federal funds where none 
exists. And if we want to cut funds and hamper those critical programs, 
then we need to stop hiding behind generic rescissions.
  For all these reasons, I urge my colleagues to vote against the 
Johanns amendment.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Nebraska.
  Mr. JOHANNS. Mr. President, may I inquire how much time we have on 
this side?
  The ACTING PRESIDENT pro tempore. Thirteen minutes.
  Mr. JOHANNS. Mr. President, let me address some of the arguments that 
have been raised.
  First of all, on this issue of the Baucus amendment simply doing more 
than the Johanns amendment or that it is especially friendly, here is 
what I would tell you. We checked into that and we have an e-mail from 
the Chief of Staff of the Joint Committee on Taxation and he says the 
two amendments do the same thing--they repeal the 1099 requirement. 
That seems to be especially friendly. As Senator Baucus pointed out, we 
are both going to accomplish the same thing; that is, we are going to 
repeal the 1099 requirement.
  To get to the issue of this being an unprecedented grant of power to 
the executive branch versus the legislative branch, we also researched 
that. The Consolidated Appropriations Act for fiscal year 2004 
basically gave the Secretary of Commerce the sole discretion to 
determine from which accounts and in what amounts funds would be 
rescinded. In other words, the Secretary had sole discretion to decide 
how to rescind that.
  The Consolidated Appropriations Act for fiscal year 2008, when my 
friends on the other side of the aisle were in control of both the 
House and the Senate, rescinded more than $192 million in unobligated 
balances available to NASA and gave the Administrator sole discretion.
  The Consolidated Appropriations Act of fiscal year 2008, again when 
my friends on the other side of the aisle were in sole control of the 
House and the Senate, rescinded $33 million in unobligated balances for 
the National Science Foundation and gave the Director sole discretion.
  The Emergency Steel Loan Guarantee and Emergency Oil and Gas 
Guarantee Loan Act rescinded $270 million of nondefense administrative 
and travel funds and again gave sole discretion to the executive 
branch.
  Very simply, the argument that somehow this is new, this is 
unprecedented, and this has never happened before simply doesn't hold 
water.
  I then heard the argument of my colleague from Hawaii, a very 
respected Member. But I look at these unobligated balances--the 
Department of Agriculture, $9.6 billion. I ran that Department for 
about 3 years. He talks about fire suppression. We dealt with fire 
suppression every year. Yes, some

[[Page S8224]]

years were worse than others when it came to fire suppression. If we 
had a year where literally we had to go find additional funding because 
the fires were worse, we worked through that and we solved the problem. 
We dealt with that issue when it was presented to us.
  Here is what I would say. In September, I came to the floor and I 
said: Look, here is how I want to pay for this. It came out of the 
health care bill. My colleagues said: Oh, we can't do that, but I am 
with you on this 1099 repeal. I listened. This repeal is paid for by 
using money that is literally sitting there in Federal accounts.
  The other matter I would point to is that the alternative is the 
Baucus amendment, and here is what the Baucus amendment does. Yes, it 
handles the problem, just like Congress has been handling the problem 
for way too long. It says to our children and grandchildren: Out of 
this multitrillion-dollar annual budget--$1 trillion in deficit, with 
40 percent of the money being literally borrowed--we can't find $19 
billion. It is too hard. It is too hard, and so our kids and our 
grandkids are going to have to deal with it. That is exactly what the 
Baucus amendment does. It says it is too hard.
  It is going to be the President's own Budget Director who is going to 
identify the funds that will pay for this. Are my colleagues on the 
other side suggesting we can't trust that process? Well, if we can't 
solve this problem and pay for it, how do we ever solve the 
multitrillion-dollar deficit this country is facing? Congress has 
allowed the administration to deal with this kind of issue on other 
occasions. To somehow claim that on this occasion it can't simply 
misses the point.
  With that, I yield to Senator Hutchison from Texas, who wishes to 
speak on this issue.
  The ACTING PRESIDENT pro tempore. The Senator from Texas.
  Mrs. HUTCHISON. I wish to thank the Senator from Nebraska for 
offering this amendment. Obviously, it has been offered before, but 
every time I go home it renews my energy to try to stop this from 
taking effect.
  Small businesspeople are approaching me and saying: This is crazy. Do 
we have to report every trip to the Office Depot? Do we have to report 
every travel voucher for $600 because I am going to a meeting in 
California? This defies description, except to say it is one more 
overbearing government intrusion on free enterprise in our country.
  So I hope very much that because of the message of the elections in 
November more people will see this is not necessary. It is certainly 
not a part of health care reform. In fact, when I saw this come out--
this little provision tucked in the enormous health care reform bill--
my thinking was twofold: One, they are paying for this enormous cost of 
the government takeover of health care on the backs of small 
businesspeople in our country. That would be one interpretation. The 
other would be that all the talk coming out of Washington about new 
taxes and possibly a value-added tax means they are starting to want to 
get the reports that would be the basis of a new tax system. Neither of 
those things should be part of health care reform in this country. So I 
am hopeful we can put a stop to this right now.
  I think the people of America well understand the burdens of this 
health care reform bill, passed on Christmas Eve of last year, over our 
objections on this side of the aisle. So maybe we can start peeling 
away some of the most onerous provisions--particularly this one, which 
takes effect in 2012--and begin to let people know we are going to try 
to mitigate the damage the health care bill has done, and we are going 
to do it a little bit at a time until we can repeal the whole thing and 
start all over.
  It is not that our system doesn't need reform. We all have said we 
need health care reform. But having to report a trip to the Office 
Depot to buy stationery or a fax machine is not the way to a better 
health care system. It is a non sequitur. So I hope Senator Johanns' 
amendment to this bill passes. It is a freestanding bill, but it is a 
great amendment to this bill. If we can stop this now, that would be 
one thing we could take off the table as we are addressing the major 
issues that actually do deal with health care reform. Maybe we can 
bring it down to a level where we would be able to address it in a more 
responsible way.
  I might add that even the National Taxpayer Advocate Division of the 
IRS has said they would have significant challenges in processing and 
analyzing the enormous volume if this piece of the Health Care Reform 
Act goes through. Even the IRS is asking: How could we do it, which 
then would lead to: What, more employees at the IRS? Well, that should 
scare the people of America. The last thing we need is a bigger 
government created to try to go into the small businesses and see if 
they are complying with a $600 requirement for every transaction they 
would make.
  So I commend the Senator from Nebraska for offering this amendment. I 
am a cosponsor of this amendment, and I hope we will have enough votes 
to stop this provision in its tracks, take it off the table, and then 
deal with health care reform on issues that actually affect health care 
reform, not issues such as this, which just burden small business in 
our country at a time when we want them to hire people. We want them to 
open their doors to hiring more workers. But the more restrictions and 
the more burdensome paperwork we put on them, the less chance there is 
they are going to hire people. That is what I am hearing from my 
constituents, and I know it is the same for all of us who have been 
home listening to what the people are saying.
  I thank the Chair, and I yield the floor.
  Mr. JOHANNS. Mr. President, may I inquire how much time remains on 
our side.
  The ACTING PRESIDENT pro tempore. Three minutes.
  Mr. JOHANNS. Mr. President, I will use that 3 minutes just to wrap up 
with a couple thoughts.
  The first point I wish to make in wrapping up this evening is that 
there has been a 21-percent increase in appropriated funding over the 
last 2 years--21 percent. So every small business out there is asking 
the question: Why is the cost, at least in part of this health care 
bill, falling on my back, when there has been a 21-percent increase in 
appropriated funding over the last 2 years? Why are you punishing me, 
when I am trying to do everything I can to stay afloat?
  Senator Hutchison said it well. You can't go anywhere in this country 
without a small businessperson saying to you: What is it about this 
1099 requirement? They are dreading the fact that they will spend 
valuable resources on accountants to be in compliance and to deal with 
this requirement. They are asking the question: Why are you picking on 
us?
  The second point I wish to make is, the money from unappropriated, 
unobligated accounts--again, excluding the Department of Defense and 
Veterans Affairs--is 5 percent. It is 5 percent of the total. I look at 
that massive Federal budget, I look at what we are dealing with, and I 
get down to the same point--$19 billion. Why would you add that to the 
Federal deficit? That is exactly what the Baucus amendment does.
  You simply will not find offsets that are better equipped to deal 
with this problem than the one I am proposing. Again, I just wish to 
emphasize, in September, when we were arguing this on the floor and my 
colleagues were coming to me and saying: Mike, look, I am with you, I 
want to repeal this, this doesn't make any sense, and my phone is 
ringing off the hook, but I can't go along with these health care 
offsets, we changed the offsets. We are paying for the Johanns 
amendment.
  The Baucus approach simply does not pay for it. So what does it do? 
In the end, it hampers the next generation. It adds to the national 
debt. If we can't find $19 billion to solve this problem, how are we 
ever going to solve the problem of this massive deficit we are passing 
on to our children and grandchildren?
  With that, I ask my colleagues to support the Johanns amendment and 
to oppose the Baucus amendment. My hope is that we can get the votes 
necessary, pass this amendment, and move on to the next issues we face.
  Mr. President, I yield the floor, and I ask unanimous consent that 
the time during the quorum call be equally charged to both sides.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.

[[Page S8225]]

  Mr. JOHANNS. Mr. President, I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. CHAMBLISS. Mr. President, I ask unanimous consent the order for 
the quorum call be rescinded and I ask to speak as in morning business.
  The PRESIDING OFFICER (Mr. Dodd). Without objection, it is so 
ordered.
  Mr. CHAMBLISS. Mr. President, as an original cosponsor of S. 510, I 
am very disappointed that I cannot support tonight's cloture vote or 
the final passage of this bill.
  Since the bill's introduction and throughout the HELP Committee mark-
up process, there has been strong bipartisan cooperation to craft 
legislation that strikes the right balance between industry practices 
and FDA oversight to ensure the safest food supply possible.
  Unfortunately, the Senate will not have the opportunity to vote for 
S. 510 as it passed the HELP Committee, nor will Senators have the 
opportunity to offer amendments to improve the bill. Compounding my 
concerns is the uncertainty about the opportunity to-have an open, 
transparent conference with our colleagues in the House of 
Representatives at this late hour of the legislative session.
  Instead, we are faced with voting for S. 510 with new language that 
was added at the llth hour which creates a loophole in the Federal food 
safety system. The newly added language, referred to as the ``Tester 
amendment,'' creates an exemption for small farms and business 
operations through an arbitrary size and distance threshold--neither of 
which have any basis in science or risk. For example, this new language 
would exempt a food facility or farm if it has sales of $500,000 or 
less, or sells half of its food to retailers, restaurants, or consumers 
in the same state or within 275 miles.
  It is extremely important to note that S. 510 as originally 
introduced and passed by the HELP Committee includes many provisions to 
protect the rights of farmers and in particular the needs of small 
farmers. These small farm protections were essential in my decision to 
be an original cosponsor of the bill, and I fully support them.
  Specifically, the original S.510 does not subject small entities that 
produce food for their own consumption or market the majority of their 
food directly to consumers to new recordkeeping requirements. Also, the 
original bill makes no change in definition of ``facility'' under the 
Bioterrorism Act of 2002 which requires certain facilities to register 
with FDA, thus farms and restaurants remain exempted in S. 510.
  Additionally, small businesses are given regulatory flexibility 
throughout the original version of S. 510. For example, small 
processors are given additional time to comply with new food safety 
practices and guidelines created by the bill, and the FDA may modify or 
exempt small processors based on risk.
  Finally, regarding risk-based traceability, farms and small 
businesses that are not food facilities are not expected to create new 
records in the original version of S. 510. Only during an active 
investigation of a food- borne illness outbreak, in consultation with 
State and local officials, the FDA may ask a farm to identify potential 
immediate recipients of food if it is necessary to protect public 
health or mitigate a foodborne illness outbreak.
  Unfortunately, the new language before us tonight goes beyond small 
farm protections. My concern with the ``Tester language'' is that it 
creates a loophole for small processing facilities by exempting them 
from HAACP and traceability requirements or products entering the food 
supply in ways other than direct sales to consumers. I am concerned 
that these arbitrarily exempted products would comingle with items that 
must follow risk-based preventive controls--such as bagged salads. In 
the case of a foodborne illness outbreak, this exemption will make 
FDA's job much harder to identify and remove the tainted source from 
the food chain.
  To state it bluntly, this new language goes far beyond protecting 
small farms and establishes arbitrary factors in determining the safety 
of food--none of which are based on risk or science.
  I am opposing cloture and final passage of this bill because I have 
been denied the opportunity to offer any amendments, especially to 
strike or improve the Tester language.
  I would have liked my colleagues to have had the opportunity to 
consider an amendment which would have limited the exemption only for 
products sold to qualified end users as defined in the Tester language, 
such as direct sales to consumers, restaurants, or retail food 
establishments. Without this limit, there is a significant chance that 
exempted products will be commingled with regulated products, thus 
rendering the protections created by S. 510 useless.
  The full implications of the Tester amendment are unknown. I think it 
would be wise for the Senate to take a closer look at the potential 
impact before we pass this legislation. The Senate should have had the 
opportunity to vote on S. 510 as it was passed by the HELP Committee 
without this loophole. All Senators should have the opportunity to 
offer and consider amendments, but we do not.
  Again, I also want to voice my concern regarding the opportunity to 
have an open, transparent conference with our colleagues in the House 
of Representatives at this late hour of the legislative session. For 
these reasons, I am voting no on cloture and no on final passage of S. 
510.
  I would also add, for the reasons I have expressed, virtually every 
processor, food processor in the country has now come out and changed 
their opinion regarding their support of this bill, and they are 
opposing the bill because of the extended loopholes that are provided 
by the Tester amendment that are going to take the safest food supply 
in the world, which we have in the United States of America, and we are 
now going to offer loopholes and exceptions in the chain from the farm 
to the restaurant, from the farm to the grocery store, from the farm to 
the consumer's table, and we are going to render the potential for 
unsafe products to enter the market, and FDA is going to have no 
opportunity to regulate those.
  That is wrong. That is not what we started out to do with S. 510. 
Senator Durbin and I talked about this, now, it is almost years ago, 
when we initially started the process of reforming the food safety 
system in this country. Unfortunately, we have gotten way away now from 
the original intention of this bill, to a point where it is not going 
to accomplish the results we started seeking to accomplish.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Connecticut.
  Mr. DODD. I want to address the issue that has been talked about by 
my friend from Georgia; that is, the Food and Drug Administration Food 
Safety and Modernization Act. I commend my colleagues and those who 
have been involved, as we have been, for weeks and weeks on end now to 
produce this bill, which I am hopeful our colleagues will support.
  We have enjoyed a few days off to celebrate the Thanksgiving holiday, 
the centerpiece of which is, of course, the great meal with family and 
friends. It is fitting at the wake of that, that we gather to deal with 
the issue of food safety, a bill that is intended to help ensure the 
safety of the food we feed our families and loved ones each and every 
day in this country.
  One of the great things about being in this country is that every day 
we consume products with a sense of security that what we are ingesting 
or using is not going to cause us any great harm or put our lives in 
jeopardy. So it is important, particularly when you deal today with the 
processing of food that occurs, that reassurance, that sense of 
security that all Americans would like to have is going to be 
guaranteed to the maximum extent possible. Never perfect, obviously. 
None of us can engage in casting or creating ideas or legislation that 
is designed to produce perfection. But we have come close with this 
bill to providing that sense of security that all Americans deserve.
  Before I speak about the substance of the bill, I want to take a 
moment to highlight the collaborative process that characterizes the 
construction of this bill. The bill is a bipartisan effort on the part 
of Senators Harkin, Enzi, Durbin, Gregg, Burr, and myself, along with 
14 of our colleagues in this

[[Page S8226]]

Chamber and is designed to strengthen the country's ability to address 
and hopefully prevent foodborne illnesses.
  I realize the bipartisan road is not always easy to follow, but I can 
confidently say when we approach legislation in this manner we often 
end up with a better, stronger, and more responsive law in the end. I 
think this bill is an example of that. It was not always easy. We had 
our differences, obviously, but we overcame them in an effort to 
respond to an issue that impacts all Americans regardless of political 
affiliation and economic circumstance; that is, again, foodborne 
illnesses.
  This collaborative process is not limited to Members and staff. I am 
including outside advocates and organizations. In fact, an impressive 
range of constituent groups, including the Consumers Union and the 
Grocery Manufacturers Association, have provided valuable input in 
support during this process. Looking at the list of groups which 
support this bill says a great deal about the product itself. It says 
we cannot afford to ignore the topic of food safety any longer. It says 
our industries and consumers want to see good consistent policy in 
place to help prevent, and when they do occur, address these illnesses.
  We have all heard the statistics. On average, 76 million Americans 
are sickened each year, and 5,000 die each year because of foodborne 
illnesses. But these are not just numbers. These are the lives of our 
fellow citizens in every region and economic group in the Nation. As 
the recall of a half billion eggs this summer due to Salmonella 
contamination has shown, foodborne illness is something that can impact 
a significant portion of our population at any given time.
  According to the Centers for Disease Control and Prevention, more 
than 1,800 people became ill due to these contaminated eggs. Let's not 
forget that the most vulnerable of our population suffer the most when 
stricken with foodborne illnesses, especially children.
  One such life significantly impacted by a strain of E. coli was a 
constituent of mine in Wilton, CT. She survived the contaminated 
lettuce she consumed, but her life has been changed as a result.
  There is a lot in this bill we can be proud of. I want to focus on 
one particular area that I have a concern with and have been involved 
in for years and years--it is food allergies.
  Long before I had a family of my own, I got involved in the issue. 
But with the arrival of my first child, Grace, in 2001, we discovered 
shortly thereafter that she had serious food allergies. She had been in 
anaphylactic shock four or five times by the time she was 4 or 5. This 
is a great concern to her parents, obviously, as it is for millions of 
people in this country. Twelve million of our fellow citizens have food 
allergies, many with life-threatening ones, and we are watching the 
numbers grow.
  According to those who keep these statistics, from 1997 to 2007 the 
prevalence of food allergies among children increased by 18 percent. 
Today, approximately 3 million children in the United States are 
suffering from one kind of food allergy or another. While food 
allergies were at one time considered relatively infrequent, they now 
rank third among chronic diseases in children under the age of 18. 
Peanuts are among the several allergenic foods that can produce life-
threatening allergic reactions in children.
  With this bill, what we have done here, is to develop a voluntary 
food allergy management guideline for preventing exposure to food 
allergens and ensuring a prompt response when a child suffers a 
potentially fatal anaphylactic reaction. It also provides for school-
based food allergy management incentive grants to local educational 
agencies to assist with the adoption and implementation of food allergy 
management guidelines in grades K through 12.
  My State of Connecticut is one of eight that has already done this on 
their own. But a lot of other States, obviously, 42 have not. This bill 
voluntarily provides small amounts of grant money to States to help 
them develop these procedures that will minimize the kind of dangers 
that occur to children when they are exposed to food that can cause 
them life-threatening diseases and illness.
  The Food and Drug Administration is responsible for regulating 80 
percent of the Nation's food supply. But for too long, the FDA has 
lacked the resources and authorities necessary to adequately protect 
our food. This bill recognizes we cannot underfund this critical agency 
and gives the FDA the tools necessary to protect our food and our 
health.
  In fact this bill establishes, for the first time, a mandatory 
inspection schedule, which was a priority for many who worked so 
tirelessly on food safety. Under the provisions of S. 510 the number of 
inspections conducted by the FDA will increase from 7,400 in 2009 to 
nearly 50,000 in 2015. Mr. President, we need these inspections. We 
need to pass this bill.
  I am hopeful that my colleagues will recognize the importance of 
passing the FDA Food Safety Modernization Act. Because every family 
sitting down to dinner tonight deserves to know that all reasonable 
measures have been taken to ensure the safety of the food they are 
eating. It's time we put politics aside for the sake of America's 
families and get this bill passed.
  I want to comment quickly, before my time expires, on the comments of 
my good friend from Georgia who just spoke, Saxby Chambliss. This was a 
difficult bill to put together. I commend my colleague from Montana, 
Jon Tester, who represents an awful lot of small farmers, small food 
processors.
  Putting this bill together required compromise. It is what we do in 
this Chamber every single day, and so had we not included the Tester 
language in this bill I think we would have had a hard time passing the 
legislation. The argument would have been: Well, you have included the 
small truck farmers who, frankly, cannot subject themselves to the kind 
of rules that large produces of food can, and we would have put the 
whole bill in jeopardy.
  By adopting the modified Tester language, we have made it possible 
for this bill to become law. So I commend my fellow Senator from 
Montana for his work. I commend Senator Harkin, the chairman of the 
committee, for bringing this all together to the point where, despite 
all of the allegations that this body cannot come to a common agreement 
on a matter as important as this one is wrong. We can when we work at 
it, and we have done so with this bill.
  I urge my colleagues to be supportive of this very important and 
historic piece of legislation.
  I yield the floor.
  Mr. DURBIN. I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The VICE PRESIDENT. Without objection, it is so ordered.

                          ____________________