[Congressional Record Volume 157, Number 31 (Thursday, March 3, 2011)]
[Senate]
[Pages S1220-S1236]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. KERRY (for himself and Mr. Rockefeller):
S. 467. A bill to amend the Internal Revenue Code of 1986 to
strengthen the earned income tax credit; to the Committee on Finance.
Mr. KERRY. Mr. President, today Senator Rockefeller and I are
reintroducing the Strengthen the Earned Income Tax Credit Act of 2011.
Since 1975, the earned income tax credit, EITC, has been an innovative
tax credit which helps low-income working families. President Reagan
referred to the EITC as ``the best antipoverty, the best pro-family,
the best job creation measure to come out of Congress.'' According to
the Center on Budget and Policy Priorities, the EITC lifts more
children out of poverty than any other government program. It lifted
6.5 million people, including 3.3 million children, above the poverty
line in 2009.
Last Congress, we were successful in making temporary improvements to
the EITC by providing marriage penalty relief and increasing the credit
rate for families with three or more children. Both of these provisions
have been part of our legislation.
It is time for us to reexamine the EITC and determine where we can
strengthen it. The Finance Committee of which I am a member has started
a series of hearings on tax reform. I believe the tax code should be
thoroughly reviewed to see what is working and not working and what can
be made simpler. This legislation expands the EITC permanently, but as
part of tax reform I would be open to changing the program. However,
those currently benefiting from the EITC should not be harmed in tax
reform and there should still be tax relief which encourages work and
helps low-income families with children.
We need to help the low-income workers who struggle day after day
trying to make ends meet. They have been left behind in the economic
policies of the last eight years. We need to begin a discussion on how
to help those that have been left behind. The EITC is the perfect place
to start.
The Strengthen the Earned Income Tax Credit Act of 2011 strengthens
the EITC by making the following changes: makes permanent marriage
penalty relief; makes permanent the credit for families with three or
more children; expands the credit for individuals with no children;
simplifies the credit; and increases the penalty for tax preparers.
The legislation would make the marriage penalty relief included in
the American Recovery and Reinvestment Act permanent. Under the
American Recovery and Reinvestment Act, the phase-out income level for
married taxpayers that file a joint return would be $5,000 higher than
the income level for unmarried filers starting in 2009 and in 2010.
This level would be indexed for inflation after 2009. The Tax Relief,
Unemployment Insurance Reauthorization and Job Creation Act of 2010
extended this provision through 2012. Without this provision, many
single individuals that marry find themselves faced with a reduction in
their EITC. In Massachusetts, approximately 100,500 children a year
benefit from the EITC because of this provision.
Second, the legislation makes permanent the credit for families with
three or more children. Under prior law, the credit amount is based on
one child or two or more children. The American Recovery and
Reinvestment Act created a third child category for 2009 and 2010 and
Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act
of 2010 extended this provision through 2012. This change benefits
approximately 116,000 children a year in Massachusetts.
Third, this legislation would increase the credit amount for
childless workers. The EITC was designed to help childless workers
offset their payroll tax liability. The credit phase-in was set to
equal the employee share of the payroll tax, 7.65 percent. However, in
reality, the employee bears the burden of both the employee and
employer portion of the payroll tax. A typical single childless adult
will begin to owe Federal income taxes in addition to payroll taxes
when his or her income is only $10,655, which is below the poverty
line. These changes will result in a full time worker receiving the
minimum wage to be eligible for the maximum earned income credit
amount.
This legislation doubles the credit rate for individual taxpayer and
married taxpayers without children. The credit rate and phase-out rate
of 7.65 percent is doubled to 15.3 percent. For 2007, the maximum
credit amount for an individual would increase from $457 to $929. In
addition, the legislation would increase the credit phase-out income
level from $7,590 to $12,690 for individuals and from $12,670 to
$17,770 for married couples. This increase is indexed for inflation and
includes the marriage penalty relief. Under current law, workers under
age 25 are ineligible for the childless workers EITC. The Strengthen
the Earned Income Tax Credit Act of 2011 would change the age
[[Page S1221]]
to 21. This age change will provide an incentive for labor for less-
educated younger adults.
Fourth, the Strengthen the Earned Income Tax Credit Act of 2011
simplifies the EITC by modifying the abandoned spouse rule, clarifying
the qualifying child rules, and repealing the disqualified investment
test.
Finally, the legislation includes a provision which increases the
penalty imposed on paid preparers who fail to comply with EITC due
diligence requirements from $100 to $500. Unfortunately, about a
quarter of EITC returns include errors and more than a majority of EITC
returns are prepared by a preparer. This should help ensure that
preparers comply with the due diligence requirements.
This legislation will help those who most need our help. It will put
more money in their pay check. We need to invest in our families and
help individuals who want to make a living by working. I urge my
colleagues to support an expansion of the EITC.
______
By Mr. McCONNELL (for himself, Mr. Paul, and Mr. Inhofe):
S. 468. A bill to amend the Federal Water Pollution Control Act to
clarify the authority of the Administrator to disapprove specifications
of disposal sites for the discharge of, dredged or fill material, and
to clarify the procedure under which a higher review of specifications
may be requested; to the Committee on Environment and Public Works.
Mr. McCONNELL. Mr. President, my friend and colleague from Kentucky,
Senator Paul, and I would like at this time to address the Senate about
a bill we are introducing.
Coal is an enormously vital sector of Kentucky's economy. More than
200,000 jobs in my State depend on it, including the jobs of
approximately 18,000 coal miners. Coal is tremendously important to our
country as well. One-half of the country's electricity comes from coal.
Yet, as we are faced with a weakened economy and high unemployment, an
overreaching Environmental Protection Agency in Washington is blocking
new jobs for Kentuckians and Americans by waging a literal war on coal.
To mine for coal, coal operators must receive what are called 404
permits. Those come from the EPA in order to operate. One such mine in
southern West Virginia followed all of the proper procedures and got
the green light from EPA to proceed with operations back in 2007.
But now, 3\1/2\ years later, in an unprecedented reversal, the EPA
has retroactively ``reinterpreted'' its authority, withdrawn the permit
it issued, and shut down the mine. The EPA's reinterpretation cost 280
Americans their jobs.
The EPA also announced that 79 of the 404 permit applications still
being considered would be subject to ``enhanced environmental
review''--``enhanced environmental review''--effectively putting them
in limbo along with the jobs and economic activity they could create.
Some of those permits are for jobs in Kentucky.
The EPA's action simply defies logic. Not only are they changing the
rules in the middle of the game, they are retroactively changing the
rules to shut down mines they already approved. No mine, regardless of
whether it has been operating for years in full compliance of every
rule and regulation, can be assured that Uncle Sam will not come along
and shut them down.
Thousands of Kentuckians who work in coal mining or have jobs
dependent on mining are literally in jeopardy. Other industries are at
risk also. Farmers, developers, the transportation industry, and others
also need permits from the EPA to continue to operate. They, too, could
see these permits revoked.
The EPA has turned the permitting process into a backdoor means of
shutting down coal mines by sitting on permits indefinitely, thus
removing any regulatory certainty. What they are doing is outside the
scope of their authority and the law and represents a fundamental
departure from the permitting process as originally envisioned by
Congress.
That is why I rise today to introduce, along with my good friends,
Senator Rand Paul and Senator James Inhofe, the Mining Jobs Protection
Act in the Senate.
This bill will tell the EPA to ``use it or lose it'' when deciding
whether to invoke its veto authority of a 404 permit within a
reasonable timeframe, giving permit applicants the certainty they need
to do business.
The bill would ensure that all 404 permits move forward to be either
approved or rejected, so applicants are not left in limbo, unsure how
to act.
The bill also ensures that EPA cannot use its veto retroactively.
While being fair to permit applicants, the bill still preserves the
EPA's full veto authority to protect human health and the environment.
Here is how the legislation would work. Once the EPA receives the 404
permit, it will have 30 days to determine if it is considering using
its veto authority. If the Agency is considering doing so, it must
publish that fact in the Federal Register, cite any potential concerns,
and detail what must be done to address those concerns within the
initial 30 days. The EPA then has an additional 30 days, for a total of
2 months, to invoke its veto authority. If the Agency does not use its
veto authority within 60 days, the permit automatically moves forward
and EPA's veto authority expires. All permits that have already been
applied for would go through this process, ensuring every permit gets a
fair shake.
Any permits vetoed prior to the passage of the bill would be
reconsidered by the Army Corps of Engineers. It was important to me
that this legislation address every 404 permit, not just one or a few.
This is a fair process that allows the EPA to act as vigorously as
necessary to protect the environment and those of us living in it while
also giving permit applications the certainty of knowing within a
reasonable timeframe whether to proceed with mining operations and
knowing that once they have the green light, it is not going to be
subsequently revoked. More important, this legislation will allow my
State and others to protect the coal and related industry jobs we
already have and grow new ones in the future.
I wish to thank my colleague from Kentucky and Senator Inhofe for
standing alongside me on this matter that is so important to our States
but also to the country as a whole. This is not just a Kentucky issue.
We think our bill strikes a fair balance toward conserving the best of
America's natural beauty while also building toward a brighter future.
The EPA's mission is important but so is job creation. Particularly
when unemployment is higher than all of us would like, both sides of
the equation must be considered. So I look forward to working with my
colleagues on both sides of the aisle to make the Mining Jobs
Protection Act a law.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 468
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Mining Jobs Protection
Act''.
SEC. 2. PERMITS FOR DREDGED OR FILL MATERIAL.
Section 404 of the Federal Water Pollution Control Act (33
U.S.C. 1344) is amended by striking subsection (c) and
inserting the following:
``(c) Authority of Administrator to Disapprove
Specifications.--
``(1) In general.--The Administrator, in accordance with
this subsection, may prohibit the specification of any
defined area as a disposal site, and may deny or restrict the
use of any defined area for specification as a disposal site,
in any case in which the Administrator determines, after
notice and opportunity for public hearings and consultation
with the Secretary, that the discharge of those materials
into the area will have an unacceptable adverse effect on--
``(A) municipal water supplies;
``(B) shellfish beds and fishery areas (including spawning
and breeding areas);
``(C) wildlife; or
``(D) recreational areas.
``(2) Deadline for action.--
``(A) In general.--The Administrator shall--
``(i) not later than 30 days after the date on which the
Administrator receives from the Secretary for review a
specification proposed to be issued under subsection (a),
provide notice to the Secretary of, and publish in the
Federal Register, a description of any potential concerns of
the Administrator with respect to the specification,
including a list of
[[Page S1222]]
measures required to fully address those concerns; and
``(ii) if the Administrator intends to disapprove a
specification, not later than 60 days after the date on which
the Administrator receives a proposed specification under
subsection (a) from the Secretary, provide to the Secretary
and the applicant, and publish in the Federal Register, a
statement of disapproval of the specification pursuant to
this subsection, including the reasons for the disapproval.
``(B) Failure to act.--If the Administrator fails to take
any action or meet any deadline described in subparagraph (A)
with respect to a proposed specification, the Administrator
shall have no further authority under this subsection to
disapprove or prohibit issuance of the specification.
``(3) No retroactive disapproval.--
``(A) In general.--The authority of the Administrator to
disapprove or prohibit issuance of a specification under this
subsection--
``(i) terminates as of the date that is 60 days after the
date on which the Administrator receives the proposed
specification from the Secretary for review; and
``(ii) shall not be used with respect to any specification
after issuance of the specification by the Secretary under
subsection (a).
``(B) Specifications disapproved before date of
enactment.--In any case in which, before the date of
enactment of this subparagraph, the Administrator disapproved
a specification under this subsection (as in effect on the
day before the date of enactment of the Mining Jobs
Protection Act) after the specification was issued by the
Secretary pursuant to subsection (a)--
``(i) the Secretary may--
``(I) reevaluate and reissue the specification after making
appropriate modifications; or
``(II) elect not to reissue the specification; and
``(ii) the Administrator shall have no further authority to
disapprove the modified specification or any reissuance of
the specification.
``(C) Finality.--An election by the Secretary under
subparagraph (B)(i) shall constitute final agency action.
``(4) Applicability.--Except as provided in paragraph (3),
this subsection applies to each specification proposed to be
issued under subsection (a) that is pending as of, or
requested or filed on or after, the date of enactment of the
Mining Jobs Protection Act''.
SEC. 3. REVIEW OF PERMITS.
Section 404(q) of the Federal Water Pollution Control Act
(33 U.S.C. 1344(q)) is amended--
(1) in the first sentence, by striking ``(q) Not later
than'' and inserting the following:
``(q) Agreements; Higher Review of Permits.--
``(1) Agreements.--
``(A) In general.--Not later than'';
(2) in the second sentence, by striking ``Such agreements''
and inserting the following:
``(B) Deadline.--Agreements described in subparagraph
(A)''; and
(3) by adding at the end the following:
``(2) Higher review of permits.--
``(A) In general.--Subject to subparagraph (C), before the
Administrator or the head of another Federal agency requests
that a permit proposed to be issued under this section
receive a higher level of review by the Secretary, the
Administrator or other head shall--
``(i) consult with the head of the State agency having
jurisdiction over aquatic resources in each State in which
activities under the requested permit would be carried out;
and
``(ii) obtain official consent from the State agency (or,
in the case of multiple States in which activities under the
requested permit would be carried out, from each State
agency) to designate areas covered or affected by the
proposed permit as aquatic resources of national importance.
``(B) Failure to obtain consent.--If the Administrator or
the head of another Federal agency does not obtain State
consent described in subparagraph (A) with respect to a
permit proposed to be issued under this section, the
Administrator or Federal agency may not proceed in seeking
higher review of the permit.
``(C) Limitation on elevations.--The Administrator or the
head of another Federal agency may request that a permit
proposed to be issued under this section receive a higher
level of review by the Secretary not more than once per
permit.
``(D) Effective date.--This paragraph applies to permits
for which applications are submitted under this section on or
after January 1, 2010.''.
Mr. PAUL. Mr. President, I rise in support of this legislation. I
think this is a good first step to reining in an out-of-control,
unelected bureaucracy. I think the EPA has gone way beyond its mandated
duty and is now at the point of stifling industry in our country. We
see this and hear this across the State of Kentucky, as well as across
the country. The President doesn't seem to understand why the country
thinks he is against business and against progress. One can't be for
job creation if one is against the job creators.
As the minority leader indicated, we have nearly 100,000 jobs and
hundreds of thousands of other jobs connected to coal. This really
applies to the rest of the country as well. Over half of the
electricity in our country comes from coal. Over 90 percent of the
electricity in Kentucky comes from coal. Yet we have mining operations
that went through the process, some of them taking up to 10 years. I
think the mine in question went through a 10-year process, spent
millions of dollars to try to get started to provide electricity for
the rest of us. Yet then the EPA comes in at the last minute.
There is said to be nearly 200 permits out there languishing. I asked
the question of my staff this morning: How many have been applied for
and how many have been granted? The EPA won't even tell us that. But
from talking to those trying to produce the coal, to produce the
electricity for our country, they said they can't get permits. In fact,
there is one coal company in Kentucky that is now suing the Federal
Government, saying they have taken his property. They have effectively
taken his property because he can't get a permit. This is a real
problem. The average expectancy for getting a permit in our country now
for all mines is 7 years.
We wonder why we are languishing as we depend on everyone else for
our energy. We want to be energy independent, and we sit on top of some
of our country's most natural resources in oil and coal. Yet we won't
produce our own. We have to become so involved and there are so many
justifications for war across the world and this and that. Yet we
refuse to use our own resources.
This is a very good step in trying to make the process better. All it
is saying is that the EPA cannot have unlimited time to sit on our
permits. This is saying there have to be rules.
I say this is a first step because I think the last election was
about saying that unelected bureaucrats should not write law. That is
what has happened. The President and many of his supporters have
indicated they can't get cap and trade through the elected body, so
they are going to go through the back door, through regulations. The
American people need to stand up and say that unelected bureaucrats
should not and cannot be allowed to write law. That is essentially what
is happening now. I think this is a great first step. I compliment the
minority leader for bringing this forward, and I wholeheartedly support
it.
______
By Mr. BEGICH (for himself, Mrs. Murray, Ms. Murkowski, and Mrs.
Boxer):
S. 472. A bill to increase the mileage reimbursement rate for members
of the armed services during permanent change of station and to
authorize the transportation of additional motor vehicles of members on
change of permanent station to or from nonforeign areas outside the
continental United States; to the Committee on Armed Services.
Mr. BEGICH. Mr President, last week I had the privilege to travel to
the Army's National Training Center to see the 1st Stryker Brigade
Combat Team from Alaska train. I was amazed at what our soldiers do to
prepare for the defense of our country.
Despite their upcoming deployment to Afghanistan in May, these Arctic
Warriors were not thinking about themselves. They were thinking about
their families. Over and over I heard how important their family's
security and support system was to them, especially as they prepared to
deploy.
To help out our military families today I am pleased to introduce the
Service Members Permanent Change of Station Relief Act with my
cosponsors Senator Patty Murray, Senator Barbara Boxer, and Senator
Lisa Murkowski. This bill will improve financial security for our
military families by increasing reimbursement for out-of-pocket
expenses they often incur during government directed moves.
First, the bill will provide reimbursement to military families for
costs incurred transporting a second car on a change of permanent duty
station to or from Alaska, Hawaii or Guam. As with their counterparts
in civilian life, many military families today own and rely on a second
vehicle to work, take care of their children and meet day-to-day needs
of the family. By doing this, we can save our military families $2,000
in personal expenses they pay to transport a second car.
[[Page S1223]]
Additionally, the bill increases the gas mileage reimbursement rate
to $.51 per mile during a move to allow for compensation of all costs
and depreciation resulting from use of a personal vehicle for a
government move.
Our military families make great personal sacrifices for our country.
Providing the Arctic Warriors and other military members a little peace
of mind about the financial security of their families is the least we
can do. I ask my colleagues to cosponsor this bill.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 472
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Service Members Permanent
Change of Station Relief Act''.
SEC. 2. MILEAGE REIMBURSEMENT RATE FOR MEMBERS OF THE
UNIFORMED SERVICES FOR TRAVEL RELATED TO CHANGE
OF PERMANENT STATION.
Section 404(d)(1)(A) of title 37, United States Code, is
amended by striking ``monetary allowance'' and all that
follows through the period at the end and inserting the
following: ``monetary allowance in place of the cost of
transportation--
``(i) in the case of a member for whom travel has been
authorized in connection with a change of a change of
permanent station or for travel described in paragraph (2) or
(3) of subsection (a), at the business standard mileage rate
set by the Internal Revenue Service pursuant to section
1.274.5(j)(2) of title 26, Code of Federal Regulations; and
``(ii) in the case of a member's dependent for whom such
travel has been authorized, at the rate provided in section
5704 of title 5.''.
SEC. 3. TRANSPORTATION OF ADDITIONAL MOTOR VEHICLE OF MEMBERS
ON CHANGE OF PERMANENT STATION TO OR FROM
NONFOREIGN AREAS OUTSIDE THE CONTINENTAL UNITED
STATES.
(a) Authority to Transport Additional Motor Vehicle.--
Subsection (a) of section 2634 of title 10, United States
Code, is amended--
(1) by striking the sentence following paragraph (4);
(2) by redesignating paragraphs (1), (2), (3), and (4) as
subparagraphs (A), (B), (C), and (D), respectively;
(3) by inserting ``(1)'' after ``(a)''; and
(4) by adding at the end the following new paragraph:
``(2) One additional motor vehicle of a member (or a
dependent of the member) may be transported as provided in
paragraph (1) if--
``(A) the member is ordered to make a change of permanent
station to or from a nonforeign area outside the continental
United States and the member has at least one dependent of
driving age who will use the motor vehicle; or
``(B) the Secretary concerned determines that a replacement
for the motor vehicle transported under paragraph (1) is
necessary for reasons beyond the control of the member and is
in the interest of the United States and the Secretary
approves the transportation in advance.''.
(b) Technical and Conforming Amendments.--Such subsection
is further amended--
(1) by striking ``his dependents'' and inserting ``a
dependent of the member'';
(2) by striking ``him'' and inserting ``the member'';
(3) by striking ``his)'' and inserting ``the member)'';
(4) by striking ``his new'' and inserting ``the member's
new''; and
(5) in paragraph (1)(C), as redesignated by subsection
(a)--
(A) by striking ``clauses (1) and (2)'' and inserting
``subparagraphs (A) and (B)''; and
(B) by inserting ``or'' after the semicolon.
SEC. 4. EFFECTIVE DATE.
The amendments made by this Act shall take effect on
January 1, 2012, and apply with respect to a permanent change
of station order issued on or after that date to a member of
the uniformed services.
______
By Ms. COLLINS (for herself, Mr. Pryor, Mr. Portman, and Ms.
Landrieu):
S. 473. A bill to extend the chemical facility security program of
the Department of Homeland Security, and for other purposes; to the
Committee on Homeland Security and Governmental Affairs.
Ms. COLLINS. Mr. President, the law granting the Federal Government,
for the first time, the authority to regulate the security of the
Nation's highest risk chemical facilities is due to expire on March 18.
We cannot allow this to occur. Given the success of this law and its
vital importance to all Americans, I am introducing legislation today
with Senators Pryor, Portman, and Landrieu to extend and improve the
law.
More than 70,000 products are created through the use of chemicals,
helping to supply the consumer, industrial, construction, and
agricultural sectors of our economy. The United States is home to
thousands of facilities that manufacture, use, or store chemicals.
This industry is vital to our economy, with annual sales of $725
billion, exports of $171 billion, and more than 780,000 employees.
After September 11, 2001, we realized that chemical facilities were
vulnerable to terrorist attack. Given the hazardous chemicals present
at many locations, terrorists could view them as attractive targets,
yielding loss of life, significant injuries, and major destruction if
successfully attacked.
In 2005, as Chairman of the Senate Homeland Security and Governmental
Affairs Committee, I held a series of hearings on chemical security.
Following these hearings, Senators Lieberman, Carper, Levin, and I
introduced bipartisan legislation authorizing the Department of
Homeland Security to set and enforce security standards at high-risk
chemical facilities. That bill was incorporated into the homeland
security appropriations act that was signed into law in 2006.
To implement this new authority, DHS established the Chemical
Facility Anti-Terrorism Standards program, or CFATS. The program sets
18 risk-based performance standards that high-risk chemical facilities
must meet. These security standards cover a range of threats, such as
perimeter security, access control, theft, internal sabotage, and cyber
security.
High-risk chemical facilities covered by the program must conduct
mandatory vulnerability assessments, develop site security plans, and
invest in protective measures.
The Department must approve these assessments and site security
plans, using audits and inspections to ensure compliance with the
performance standards. The Secretary has strong authority to shut down
facilities that are non-compliant.
This risk-based approach has made the owners and operators of
chemical plants partners with the Federal Government in implementing a
successful, collaborative security program.
This landmark law has been in place slightly more than four years.
Taxpayers have invested nearly $300 million in the program, and
chemical plants have invested hundreds of millions more to comply with
the law. As a direct result, security at our Nation's chemical
facilities is much stronger today.
Now we must reauthorize the program. Simply put, the program works
and should be extended.
Changing this successful law, as was proposed last year by the House
of Representatives in partisan legislation, would discard what is
working for an unproven and burdensome plan.
We must not undermine the substantial investments of time and
resources already made in CFATS implementation by both DHS and the
private sector. Worse would be requiring additional expenditures with
no demonstrable increase to the overall security of our Nation.
In the 111th Congress, the Senate and the House of Representatives
debated a provision that would alter the fundamental nature of CFATS.
The provision would have required the Department to completely rework
the program. It would have mandated the use of so-called ``inherently
safer technology,'' or IST.
What is IST? It is an approach to process engineering. It is not,
however, a security measure.
An IST mandate may actually increase or unacceptably transfer risk to
other points in the chemical process or elsewhere in the supply chain.
For example, many drinking water utilities have determined that
chlorine remains their best and most effective drinking water treatment
option. Their decisions were not based solely on financial
considerations, but also on many other factors, such as the
characteristics of the region's climate, geography, and source water
supplies, the size and location of the utility's facilities, and the
risks and benefits of chlorine use compared to the use of alternative
treatment processes.
According to one water utility located in an isolated area of the
northwest United States, if Congress were to force it to replace its
use of gaseous
[[Page S1224]]
chlorine with sodium hypochlorite, then the utility would have to use
as much as seven times the current quantity of treatment chemicals to
achieve comparable water quality results. In turn, the utility would
have to arrange for many more bulk chemical deliveries, by trucks, into
a watershed area. The greater quantities of chemicals and increased
frequency of truck deliveries would heighten the risk of an accident
resulting in a chemical spill into the watershed. In fact, the
accidental release of sodium hypochlorite into the watershed would
likely cause greater harm to soils, vegetation, and streams than a
gaseous chlorine release in this remote area.
Currently, DHS cannot dictate specific security measures, like IST.
Nor should it. The Federal Government should set performance standards,
but leave it up to the private sector to decide precisely how to
achieve those standards.
Forcing chemical facilities to implement IST could cost jobs at some
facilities and affect the availability of many vital products.
Last year, the Society of Chemical Manufacturers and Affiliates
testified that mandatory IST would restrict the production of
pharmaceuticals and microelectronics, hobbling these industries. The
increased cost of a mandatory IST program may force chemical companies
to simply transfer their operations overseas, costing American workers
thousands of jobs.
To be clear, some owners and operators of chemical facilities may
choose to use IST. But that decision should be theirs--not
Washington's. Congress should not dictate specific industrial processes
under the guise of security when a facility could choose other
alternatives that meet the Nation's security needs.
Last July, the Homeland Security Committee unanimously approved
bipartisan legislation I authored with Senators Pryor, Voinovich, and
Landrieu to extend CFATS for three more years.
Additionally, the bill would have established voluntary exercise and
training programs to improve collaboration with the private sector and
state and local communities under the CFATS program; created a
voluntary technical assistance program; and created a chemical facility
security best practices clearinghouse and private sector advisory board
at DHS to assist in the implementation of CFATS.
Today, along with Senators Pryor, Portman, and Landrieu, I am
reintroducing this bill. The Continuing Chemical Facilities
Antiterrorism Security Act of 2011 is a straight-forward, common-sense
reauthorization of the CFATS program.
I am conscious of the risks our Nation faces through an attack on a
chemical facility. That is why I authored this law in the first place
and battled considerable opposition to get it enacted. We should
support the continuation of this successful security program without
the addition of costly, unproven Federal mandates. I urge my colleagues
to support this important bill.
______
By Ms. SNOWE (for herself, Mr. Coburn, Ms. Ayotte, Mr. Enzi, and
Mr. Brown, of Massachusetts):
S. 474. A bill to reform the regulatory process to ensure that small
businesses are free to compete and to create jobs, and for other
purposes; to the Committee on Homeland Security and Governmental
Affairs.
Ms. Snowe. Mr. President, I rise today, with Senators Coburn, Ayotte,
Enzi, and Brown of Massachusetts, to introduce the Small Business
Regulatory Freedom Act of 2011, a vital measure that will help ensure
that the federal government fully consider small business job creation
in the bills we pass here in Congress and in the rules and regulations
that agencies promulgate.
As the former Chair and now Ranking Member of the Senate Committee on
Small Business and Entrepreneurship, I believe there is no more urgent
imperative than job creation in our country. For the past 21 months,
the unemployment rate has stood at 9 percent or above. We cannot allow
these outrageous levels of unemployment to become the new normal.
Therefore, it is essential that we focus like a laser on jumpstarting
our economy. Now is the time to tear down barriers to job creation, not
build them higher.
Unfortunately, recent data suggests that not only is this
administration failing to tear down barriers to small business job
creation, but rather is actively constructing new obstacles. In fiscal
year 2010 alone, this administration embarked on nothing short of
regulatory rampage, stampeding over small business, through the
promulgation of 43 new major regulations promulgated in fiscal year
2010, imposing $26.5 billion in new regulatory compliance costs, and
that's on top of the $1.75 trillion in annual compliance costs that the
SBA Office of Advocacy recently reported.
Simply put, this is unacceptable. Too often, the Federal Government
considers the regulatory impact on small firms merely as an
afterthought rather than a top priority. In my recent street tours and
meetings in Maine, aside from taxes, small businesses complain most
about the onerous regulations emanating from every agency, every sphere
of Washington, DC. Consider that, according to the U.S. Chamber of
Commerce, the health reform law, which I opposed, mandates 41 separate
rulemakings, at least 100 additional regulatory guidance documents, and
129 reports. What's most alarming, small firms with fewer than 20
employees bear a disproportionate burden of complying with federal
regulations, paying an annual regulatory cost of $10,585 per employee,
which is 36 percent higher than the regulatory cost facing larger
firms.
This must change, and the ``Small Business Regulatory Freedom Act of
2011,'' aims to do just that. Our bill reforms the flawed rulemaking
process to ensure that federal agencies consider small business impact
before a rule is promulgated, not after. Our legislation, which is
strongly supported by the National Federation of Independent Business,
NFIB, would amend the Regulatory Flexibility Act, RFA, the seminal
legislation enacted in 1980 that requires Federal agencies to conduct
small business analyses for any proposed or final regulation that would
impose a significant impact on a substantial number of small firms.
The first provision in our bill would enhance these small business
analyses, by requiring agencies to draw in rules with foreseeable
``indirect'' economic effects under the definition of rules covered by
the RFA. Such rules are currently exempt from the RFA, which currently
only applies to ``direct'' economic impact. The RFA has already saved
billions for small businesses by forcing government regulators to be
sensitive to their direct impact on small firms. If billions of dollars
can be filtered out of direct regulatory mandates upon small business
while improving workplace safety and environmental conditions, even
more can be saved by filtering out unnecessary or duplicative costs to
those small businesses indirectly impacted by regulation.
The bill would also expand judicial review requirements currently in
the RFA to allow small entities to seek review and an injunction at the
proposed rule stage if agencies fail to fully consider small business
impact as they are required to by law. This will help to ensure that
federal agencies complete meaningful initial analyses under the RFA.
Currently, small entities can only seek review on the date of the final
regulatory action.
In addition, our legislation would amend and clarify the requirements
under the RFA for the periodic review of rules. Many questions have
arisen as a result of the ambiguous language in the RFA that have
caused some confusion as to what rules require periodic review and
when. Our bill clarifies the requirements for ``periodic review'' under
Section 610 of the RFA so that both existing rules and rules that are
promulgated after enactment of the Small Business Regulatory Freedom
Act of 2011 are periodically reviewed within 10 years and every ten
years thereafter. Along with each review, an agency must also create
and update small business compliance guides to assist small businesses
comply with that agencies regulations. The requirements of periodic
review would also apply to these compliance guides and must be updated
when the rule is reviewed.
Unfortunately, past efforts to encourage agencies to periodically
review their regulations have failed because of
[[Page S1225]]
the lack of an enforcement mechanism. Our bill rectifies this issue. To
ensure agency compliance the bill includes a sunset provision. If the
Chief Counsel for the SBA Office of Advocacy determines that an agency
has failed to conduct the necessary periodic review of a rule, then
that rule will sunset and cease to have effect.
Moreover, the bill would expand the small business review panel
process requirement, SBREFA panels, to apply to all agencies. These
panels currently only apply to the Environmental Protection Agency,
EPA, Occupational Safety and Health Administration, OSHA, and, thanks
to an amendment that I included in the Wall Street Reform legislation,
the new Consumer Financial Protection Bureau, CFPB. These panels have
worked well at EPA and OSHA since 1996, so why not apply this
stipulation to every federal agency, so small businesses are considered
first, and not as an afterthought?
Furthermore, our bill would extend the RFA to informal agency
guidance documents, so that Federal agencies must conduct small
business economic analyses before publishing informal guidance
documents. Many agencies, including the OSHA, have repeatedly subverted
the rulemaking process through the use of guidance documents or
``reinterpretations'' so that they don't have to adhere to their RFA
obligations, including small business review panels--this provision
will help to end that practice.
This legislation also seeks to clarify language included in the RFA
that has led to a great deal of confusion regarding RFA applicability
to the IRS, and would once and for all ensure that indeed the IRS is
covered under the RFA ending the longstanding practice of the IRS
utilizing some unprecedented interpretations to circumvent compliance
with the RFA--this bill closes those loopholes. For example, the IRS
has argued that paperwork requirements are mandated by Congress and
thus it is Congress that is creating the requirement, not the IRS. Our
bill would clarify the definitions so the IRS and other agencies can no
longer dodge conducting its RFA obligations.
Our bill will also update a dormant provision of the Small Business
Regulatory Enforcement Fairness Act, SBREFA, by requiring that federal
agencies review existing penalty structures within 6 months of
enactment and every two years thereafter to mitigate penalty provisions
on small firms. Too often agencies, like OSHA, set or update their
penalty structures without considering small business economic impact.
Our provision should end this practice.
Strengthening how Federal agencies execute their small business
analyses is also a central requirement for real reform. This
legislation will accomplish this goal through three fundamental
reforms:
First, it would require a calculation of the additional cumulative
impact the proposed rule will impose on small entities, including job
creation and employment effects, beyond what is already imposed on
small firms by the agency.
Second, the bill would require federal agencies to notify the Chief
Counsel for the SBA Office Advocacy about any draft rule that will
trigger an RFA analysis when the agency submits the draft rule to OMB's
Office of Information and Regulatory Affairs, OIRA.
Third, our legislation would strengthen final regulatory flexibility
analyses under RFA. Currently, small business analyses in final rules
are only required to produce a summary analysis, general statement, or
explanation regarding a rule's effect on small entities. In practice
this has allowed agencies to avoid an in depth analysis of a rule's
effect. Our legislation would enhance reporting so an agency must
include a detailed analysis. It also would require the promulgating
agency to publish the entire final analysis on its web site and in the
Federal Register.
Our bill will also ensure that before an agency certifies that a
proposed rule will not impose an economic impact on small business, it
must first determine the average cost of the rule for small entities
affected or reasonably presumed to be affected; the number of small
firms affected or presumed to be affected; and the number of affected
small entities for which the cost of the rule will be significant.
Also, before a certification statement can be published the agency must
send a copy of the certification to, and consult with, the Chief
Counsel for Advocacy on the accuracy of the certification and
statement.
Finally, the bill will clarify that the Chief Counsel for the SBA
Office of Advocacy to be an attorney with expertise or knowledge of the
regulatory process. This will ensure that the President nominates a
qualified individual who will be the most effective advocate for small
business possible. We also provide additional powers to the Chief
Counsel by allowing him or her to comment on any regulatory action, not
just during the notice and comment rulemaking process. In the past, the
Office of Advocacy has refused to weigh in on matters outside the
rulemaking process--e.g., guidance documents--citing a lack of
authority to do so.
In a November 2010 Senate Small Business Committee hearing, it was
noted that if there were a 30 percent cut in regulatory costs, an
average 10-person firm would save, on average nearly $32,000, enough to
hire one additional person. There is no doubt, reducing the regulatory
burden on American small businesses will create jobs. After 21 straight
months with unemployment at or above nine percent, it is more
imperative than ever that we finally liberate American small businesses
from the regulatory burden holding them down.
It is essential that we pass this legislation. I urge my colleagues
to support my bill so we can ensure that our nation's small businesses
and their employees are provided with much needed relief.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the additional material was ordered to be
printed in the Record, as follows:
S. 474
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Small
Business Regulatory Freedom Act of 2011''.
(b) Table of Contents.--The table of contents of this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings.
Sec. 3. Including indirect economic impact in small entity analyses.
Sec. 4. Judicial review to allow small entities to challenge proposed
regulations.
Sec. 5. Periodic review and sunset of existing rules.
Sec. 6. Requiring small business review panels for all agencies.
Sec. 7. Expanding the Regulatory Flexibility Act to agency guidance
documents.
Sec. 8. Requiring the Internal Revenue Service to consider small entity
impact.
Sec. 9. Mitigating penalties on small entities.
Sec. 10. Requiring more detailed small entity analyses.
Sec. 11. Ensuring that agencies consider small entity impact during the
rulemaking process.
Sec. 12. Qualifications of the Chief Counsel for Advocacy and authority
for the Office of Advocacy .
Sec. 13. Technical and conforming amendments.
SEC. 2. FINDINGS.
Congress finds the following:
(1) A vibrant and growing small business sector is critical
to the recovery of the economy of the United States.
(2) Regulations designed for application to large-scale
entities have been applied uniformly to small businesses and
other small entities, sometimes inhibiting the ability of
small entities to create new jobs.
(3) Uniform Federal regulatory and reporting requirements
in many instances have imposed on small businesses and other
small entities unnecessary and disproportionately burdensome
demands, including legal, accounting, and consulting costs,
thereby threatening the viability of small entities and the
ability of small entities to compete and create new jobs in a
global marketplace.
(4) Since 1980, Federal agencies have been required to
recognize and take account of the differences in the scale
and resources of regulated entities, but in many instances
have failed to do so.
(5) In 2009, there were nearly 70,000 pages in the Federal
Register, and, according to research by the Office of
Advocacy of the Small Business Administration, the annual
cost of Federal regulations totals $1,750,000,000,000. Small
firms bear a disproportionate burden, paying approximately 36
percent more per employee than larger firms in annual
regulatory compliance costs.
(6) All agencies in the Federal Government should fully
consider the costs, including indirect economic impacts and
the potential
[[Page S1226]]
for job creation and job loss, of proposed rules,
periodically review existing regulations to determine their
impact on small entities, and repeal regulations that are
unnecessarily duplicative or have outlived their stated
purpose.
(7) It is the intention of Congress to amend chapter 6 of
title 5, United States Code, to ensure that all impacts,
including foreseeable indirect effects, of proposed and final
rules are considered by agencies during the rulemaking
process and that the agencies assess a full range of
alternatives that will limit adverse economic consequences,
enhance economic benefits, and fully address potential job
creation or job loss.
SEC. 3. INCLUDING INDIRECT ECONOMIC IMPACT IN SMALL ENTITY
ANALYSES.
Section 601 of title 5, United States Code, is amended by
adding at the end the following:
``(9) the term `economic impact' means, with respect to a
proposed or final rule--
``(A) any direct economic effect of the rule on small
entities; and
``(B) any indirect economic effect on small entities,
including potential job creation or job loss, that is
reasonably foreseeable and that results from the rule,
without regard to whether small entities are directly
regulated by the rule.''.
SEC. 4. JUDICIAL REVIEW TO ALLOW SMALL ENTITIES TO CHALLENGE
PROPOSED REGULATIONS.
Section 611(a) of title 5, United States Code, is amended--
(1) in paragraph (1), by inserting ``603,'' after ``601,'';
(2) in paragraph (2), by inserting ``603,'' after ``601,'';
(3) by striking paragraph (3) and inserting the following:
``(3) A small entity may seek such review during the 1-year
period beginning on the date of final agency action, except
that--
``(A) if a provision of law requires that an action
challenging a final agency action be commenced before the
expiration of 1 year, the lesser period shall apply to an
action for judicial review under this section; and
``(B) in the case of noncompliance with section 603 or
605(b), a small entity may seek judicial review of agency
compliance with such section before the close of the public
comment period.''; and
(4) in paragraph (4)--
(A) in subparagraph (A), by striking ``, and'' and
inserting a semicolon;
(B) in subparagraph (B), by striking the period and
inserting ``; or''; and
(C) by adding at the end the following:
``(C) issuing an injunction prohibiting an agency from
taking any agency action with respect to a rulemaking until
that agency is in compliance with the requirements of section
603 or 605.''.
SEC. 5. PERIODIC REVIEW AND SUNSET OF EXISTING RULES.
Section 610 of title 5, United States Code, is amended to
read as follows:
``Sec. 610. Periodic review of rules
``(a)(1) Not later than 180 days after the date of
enactment of the Small Business Regulatory Freedom Act of
2011, each agency shall establish a plan for the periodic
review of--
``(A) each rule issued by the agency that the head of the
agency determines has a significant economic impact on a
substantial number of small entities, without regard to
whether the agency performed an analysis under section 604
with respect to the rule; and
``(B) any small entity compliance guide required to be
published by the agency under section 212 of the Small
Business Regulatory Enforcement Fairness Act of 1996 (5
U.S.C. 601 note).
``(2) In reviewing rules and small entity compliance guides
under paragraph (1), the agency shall determine whether the
rules and guides should--
``(A) be amended or rescinded, consistent with the stated
objectives of applicable statutes, to minimize any
significant adverse economic impacts on a substantial number
of small entities (including an estimate of any adverse
impacts on job creation and employment by small entities); or
``(B) continue in effect without change.
``(3) Each agency shall publish the plan established under
paragraph (1) in the Federal Register and on the Web site of
the agency.
``(4) An agency may amend the plan established under
paragraph (1) at any time by publishing the amendment in the
Federal Register and on the Web site of the agency.
``(b)(1) Each plan established under subsection (a) shall
provide for--
``(A) the review of each rule and small entity compliance
guide described in subsection (a)(1) in effect on the date of
enactment of the Small Business Regulatory Freedom Act of
2011--
``(i) not later than 8 years after the date of publication
of the plan in the Federal Register; and
``(ii) every 8 years thereafter; and
``(B) the review of each rule adopted and small entity
compliance guide described in subsection (a)(1) that is
published after the date of enactment of the Small Business
Regulatory Freedom Act of 2011--
``(i) not later than 8 years after the publication of the
final rule in the Federal Register; and
``(ii) every 8 years thereafter.
``(2)(A) If an agency determines that the review of the
rules and guides described in paragraph (1)(A) cannot be
completed before the date described in paragraph (1)(A)(i),
the agency--
``(i) shall publish a statement in the Federal Register
certifying that the review cannot be completed; and
``(ii) may extend the period for the review of the rules
and guides described in paragraph (1)(A) for a period of not
more than 2 years, if the agency publishes notice of the
extension in the Federal Register.
``(B) An agency shall transmit to the Chief Counsel for
Advocacy of the Small Business Administration and Congress
notice of any statement or notice described in subparagraph
(A).
``(c) In reviewing rules under the plan required under
subsection (a), the agency shall consider--
``(1) the continued need for the rule;
``(2) the nature of complaints received by the agency from
small entities concerning the rule;
``(3) comments by the Regulatory Enforcement Ombudsman and
the Chief Counsel for Advocacy of the Small Business
Administration;
``(4) the complexity of the rule;
``(5) the extent to which the rule overlaps, duplicates, or
conflicts with other Federal rules and, unless the head of
the agency determines it to be infeasible, State and local
rules;
``(6) the contribution of the rule to the cumulative
economic impact of all Federal rules on the class of small
entities affected by the rule, unless the head of the agency
determines that such a calculation cannot be made;
``(7) the length of time since the rule has been evaluated,
or the degree to which technology, economic conditions, or
other factors have changed in the area affected by the rule;
and
``(8) the impact of the rule, including--
``(A) the estimated number of small entities to which the
rule will apply;
``(B) the estimated number of small entity jobs that will
be lost or created due to the rule; and
``(C) the projected reporting, recordkeeping, and other
compliance requirements of the proposed rule, including--
``(i) an estimate of the classes of small entities that
will be subject to the requirement; and
``(ii) the type of professional skills necessary for
preparation of the report or record.
``(d)(1) Each agency shall submit an annual report
regarding the results of the review required under subsection
(a) to--
``(A) Congress; and
``(B) in the case of an agency that is not an independent
regulatory agency (as defined in section 3502(5) of title
44), the Administrator of the Office of Information and
Regulatory Affairs of the Office of Management and Budget.
``(2) Each report required under paragraph (1) shall
include a description of any rule or guide with respect to
which the agency made a determination of infeasibility under
paragraph (5) or (6) of subsection (c), together with a
detailed explanation of the reasons for the determination.
``(e) Each agency shall publish in the Federal Register and
on the Web site of the agency a list of the rules and small
entity compliance guides to be reviewed under the plan
required under subsection (a) that includes--
``(1) a brief description of each rule or guide;
``(2) for each rule, the reason why the head of the agency
determined that the rule has a significant economic impact on
a substantial number of small entities (without regard to
whether the agency had prepared a final regulatory
flexibility analysis for the rule); and
``(3) a request for comments from the public, the Chief
Counsel for Advocacy of the Small Business Administration,
and the Regulatory Enforcement Ombudsman concerning the
enforcement of the rules or publication of the guides.
``(f)(1) With respect to each agency, not later than 6
months after each date described in subsection (b)(1), the
Chief Counsel for Advocacy of the Small Business
Administration shall determine whether the agency has
completed the review required under subsection (b).
``(2) If, after a review under paragraph (1), the Chief
Counsel for Advocacy of the Small Business Administration
determines that an agency has failed to complete the review
required under subsection (b), each rule issued by the agency
that the head of the agency determined under subsection (a)
has a significant economic impact on a substantial number of
small entities shall immediately cease to have effect.''.
SEC. 6. REQUIRING SMALL BUSINESS REVIEW PANELS FOR ALL
AGENCIES.
(a) Agencies.--Section 609 of title 5, United States Code,
is amended--
(1) in subsection (b), by striking ``a covered agency''
each place it appears and inserting ``an agency''; and
(2) in subsection (e)(1), by striking ``the covered
agency'' and inserting ``the agency''.
(b) Technical and Conforming Amendments.--
(1) Section 609.--Section 609 of title 5, United States
Code, is amended--
(A) by striking subsection (d), as amended by section
1100G(a) of Public Law 111-203 (124 Stat. 2112); and
(B) by redesignating subsection (e) as subsection (d).
(2) Section 603.--Section 603(d) of title 5, United States
Code, as added by section 1100G(b) of Public Law 111-203 (124
Stat. 2112), is amended--
[[Page S1227]]
(A) in paragraph (1), by striking ``a covered agency, as
defined in section 609(d)(2)'' and inserting ``the Bureau of
Consumer Financial Protection''; and
(B) in paragraph (2), by striking ``A covered agency, as
defined in section 609(d)(2),'' and inserting ``The Bureau of
Consumer Financial Protection''.
(3) Section 604.--Section 604(a) of title 5, United States
Code, is amended--
(A) by redesignating the second paragraph designated as
paragraph (6) (relating to covered agencies), as added by
section 1100G(c)(3) of Public Law 111-203 (124 Stat. 2113),
as paragraph (7); and
(B) in paragraph (7), as so redesignated--
(i) by striking ``a covered agency, as defined in section
609(d)(2)'' and inserting ``the Bureau of Consumer Financial
Protection''; and
(ii) by striking ``the agency'' and inserting ``the
Bureau''.
(4) Effective date.--The amendments made by this subsection
shall take effect on the date of enactment of this Act and
apply on and after the designated transfer date established
under section 1062 of Public Law 111-203 (12 U.S.C. 5582).
SEC. 7. EXPANDING THE REGULATORY FLEXIBILITY ACT TO AGENCY
GUIDANCE DOCUMENTS.
Section 601(2) of title 5, United States Code, is amended
by inserting after ``public comment'' the following: ``and
any significant guidance document, as defined in the Office
of Management and Budget Final Bulletin for Agency Good
Guidance Procedures (72 Fed. Reg. 3432; January 25, 2007)''.
SEC. 8. REQUIRING THE INTERNAL REVENUE SERVICE TO CONSIDER
SMALL ENTITY IMPACT.
(a) In General.--Section 603(a) of title 5, United States
Code, is amended, in the fifth sentence, by striking ``but
only'' and all that follows through the period at the end and
inserting ``but only to the extent that such interpretative
rules, or the statutes upon which such rules are based,
impose on small entities a collection of information
requirement or a recordkeeping requirement.''.
(b) Definitions.--Section 601 of title 5, United States
Code, as amended by section 3 of this Act, is amended--
(1) in paragraph (6), by striking ``and'' at the end; and
(2) by striking paragraphs (7) and (8) and inserting the
following:
``(7) the term `collection of information' has the meaning
given that term in section 3502(3) of title 44;
``(8) the term `recordkeeping requirement' has the meaning
given that term in section 3502(13) of title 44; and''.
SEC. 9. MITIGATING PENALTIES ON SMALL ENTITIES.
Section 223 of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Public Law 104-121; 110 Stat. 862) is
amended by adding at the end the following:
``(d) Review of Policies and Programs.--
``(1) Review required.--Not later than 6 months after the
date of enactment of this subsection, and every 2 years
thereafter, each agency regulating the activities of small
entities shall review the policy or program established by
the agency under subsection (a) and make any modifications to
the policy or program necessary to comply with the
requirements under this section.
``(2) Report.--Not later than 6 months after the date of
enactment of this subsection, and every 2 years thereafter,
each agency described in paragraph (1) shall submit a report
on the review and modifications required under paragraph (1)
to--
``(A) the Committee on Small Business and Entrepreneurship
and the Committee on Homeland Security and Governmental
Affairs of the Senate; and
``(B) the Committee on Small Business and the Committee on
the Judiciary of the House of Representatives.''.
SEC. 10. REQUIRING MORE DETAILED SMALL ENTITY ANALYSES.
(a) Initial Regulatory Flexibility Analysis.--Section 603
of title 5, United States Code, as amended by section
1100G(b) of Public Law 111-203 (124 Stat. 2112), is amended--
(1) by striking subsection (b) and inserting the following:
``(b) Each initial regulatory flexibility analysis required
under this section shall contain a detailed statement--
``(1) describing the reasons why action by the agency is
being considered;
``(2) describing the objectives of, and legal basis for,
the proposed rule;
``(3) estimating the number and type of small entities to
which the proposed rule will apply;
``(4) describing the projected reporting, recordkeeping,
and other compliance requirements of the proposed rule,
including an estimate of the classes of small entities which
will be subject to the requirement and the type of
professional skills necessary for preparation of the report
and record;
``(5) describing all relevant Federal rules which may
duplicate, overlap, or conflict with the proposed rule, or
the reasons why such a description could not be provided; and
``(6) estimating the additional cumulative economic impact
of the proposed rule on small entities, including job
creation and employment by small entities, beyond that
already imposed on the class of small entities by the agency,
or the reasons why such an estimate is not available.''; and
(2) by adding at the end the following:
``(e) An agency shall notify the Chief Counsel for Advocacy
of the Small Business Administration of any draft rules that
may have a significant economic impact on a substantial
number of small entities--
``(1) when the agency submits a draft rule to the Office of
Information and Regulatory Affairs of the Office of
Management and Budget under Executive Order 12866, if that
order requires the submission; or
``(2) if no submission to the Office of Information and
Regulatory Affairs is required--
``(A) a reasonable period before publication of the rule by
the agency; and
``(B) in any event, not later than 3 months before the date
on which the agency publishes the rule.''.
(b) Final Regulatory Flexibility Analysis.--
(1) In general.--Section 604(a) of title 5, United States
Code, is amended--
(A) by inserting ``detailed'' before ``description'' each
place it appears;
(B) in paragraph (2)--
(i) by inserting ``detailed'' before ``statement'' each
place it appears; and
(ii) by inserting ``(or certification of the proposed rule
under section 605(b))'' after ``initial regulatory
flexibility analysis'';
(C) in paragraph (4), by striking ``an explanation'' and
inserting ``a detailed explanation''; and
(D) in paragraph (6) (relating to a description of steps
taken to minimize significant economic impact), as added by
section 1601 of the Small Business Jobs Act of 2010 (Public
Law 111-240; 124 Stat. 2251), by inserting ``detailed''
before ``statement''.
(2) Publication of analysis on web site, etc.--Section
604(b) of title 5, United States Code, is amended to read as
follows:
``(b) The agency shall--
``(1) make copies of the final regulatory flexibility
analysis available to the public, including by publishing the
entire final regulatory flexibility analysis on the Web site
of the agency; and
``(2) publish in the Federal Register the final regulatory
flexibility analysis, or a summary of the analysis that
includes the telephone number, mailing address, and address
of the Web site where the complete final regulatory
flexibility analysis may be obtained.''.
(c) Cross-References to Other Analyses.--Section 605(a) of
title 5, United States Code, is amended to read as follows:
``(a) A Federal agency shall be deemed to have satisfied a
requirement regarding the content of a regulatory flexibility
agenda or regulatory flexibility analysis under section 602,
603, or 604, if the Federal agency provides in the agenda or
regulatory flexibility analysis a cross-reference to the
specific portion of an agenda or analysis that is required by
another law and that satisfies the requirement under section
602, 603, or 604.''.
(d) Certifications.--Section 605(b) of title 5, United
States Code, is amended, in the second sentence, by striking
``statement providing the factual'' and inserting ``detailed
statement providing the factual and legal''.
(e) Quantification Requirements.--Section 607 of title 5,
United States Code, is amended to read as follows:
``Sec. 607. Quantification requirements
``In complying with sections 603 and 604, an agency shall
provide--
``(1) a quantifiable or numerical description of the
effects of the proposed or final rule, including an estimate
of the potential for job creation or job loss, and
alternatives to the proposed or final rule; or
``(2) a more general descriptive statement regarding the
potential for job creation or job loss and a detailed
statement explaining why quantification under paragraph (1)
is not practicable or reliable.''.
SEC. 11. ENSURING THAT AGENCIES CONSIDER SMALL ENTITY IMPACT
DURING THE RULEMAKING PROCESS.
Section 605(b) of title 5, United States Code, is amended--
(1) by inserting ``(1)'' after ``(b)''; and
(2) by adding at the end the following:
``(2) If, after publication of the certification required
under paragraph (1), the head of the agency determines that
there will be a significant economic impact on a substantial
number of small entities, the agency shall comply with the
requirements of section 603 before the publication of the
final rule, by--
``(A) publishing an initial regulatory flexibility analysis
for public comment; or
``(B) re-proposing the rule with an initial regulatory
flexibility analysis.
``(3) The head of an agency may not make a certification
relating to a rule under this subsection, unless the head of
the agency has determined--
``(A) the average cost of the rule for small entities
affected or reasonably presumed to be affected by the rule;
``(B) the number of small entities affected or reasonably
presumed to be affected by the rule; and
``(C) the number of affected small entities for which that
cost will be significant.
``(4) Before publishing a certification and a statement
providing the factual basis for the certification under
paragraph (1), the head of an agency shall--
``(A) transmit a copy of the certification and statement to
the Chief Counsel for Advocacy of the Small Business
Administration; and
``(B) consult with the Chief Counsel for Advocacy of the
Small Business Administration on the accuracy of the
certification and statement.''.
[[Page S1228]]
SEC. 12. QUALIFICATIONS OF THE CHIEF
COUNSEL FOR ADVOCACY AND AUTHORITY FOR THE
OFFICE OF ADVOCACY.
(a) Qualifications of Chief Counsel for Advocacy.--Section
201 of Public Law 94-305 (15 U.S.C. 634a) is amended by
adding at the end the following: ``The Chief Counsel for
Advocacy shall be an attorney with business experience and
expertise in or knowledge of the regulatory process.''.
(b) Additional Powers of Office of Advocacy.--Section 203
of Public Law 94-305 (15 U.S.C. 634c) is amended--
(1) in paragraph (5), by striking ``and'' at the end;
(2) in paragraph (6), by striking the period at the end and
inserting ``; and''; and
(3) by inserting after paragraph (6) the following:
``(7) at the discretion of the Chief Counsel for Advocacy,
comment on regulatory action by an agency that affects small
businesses, without regard to whether the agency is required
to file a notice of proposed rulemaking under section 553 of
title 5, United States Code, with respect to the action.''.
SEC. 13. TECHNICAL AND CONFORMING AMENDMENTS.
(a) Heading.--Section 605 of title 5, United States Code,
is amended in the section heading by striking ``Avoidance''
and all that follows and inserting the following:
``Incorporations by reference and certification.''.
(b) Table of Sections.--The table of sections for chapter 6
of title 5, United States Code, is amended--
(1) by striking the item relating to section 605 and
inserting the following:
``605. Incorporations by reference and certifications.''; and
(2) by striking the item relating to section 607 inserting
the following:
``607. Quantification requirements.''.
______
By Mr. HARKIN (for himself, Ms. Klobuchar, and Mr. Franken):
S. 481. A bill to enhance and further research into the prevention
and treatment of eating disorders, to improve access to treatment of
eating disorders, and for other purposes; to the Committee on Health,
Education, Labor, and Pensions.
Mr. HARKIN. Mr. President, today I am pleased to join with Senators
Klobuchar and Franken to reintroduce the Federal Response to
Eliminating Eating Disorders Act, or the FREED Act. The FREED Act is a
comprehensive legislative effort to confront eating disorders in the
United States, to learn more about their devastating impact, and to
offer support and care to those who suffer from these illnesses.
Eating disorders such as anorexia nervosa, bulimia nervosa, and binge
eating disorder are widespread, insidious, and too often fatal. Today,
at least 5 million Americans suffer from eating disorders. Because
these conditions often go undiagnosed and unreported, the actual number
may be closer to 11 million Americans, including 1 million males. These
disorders don't discriminate by gender, race, income, or age.
Eating disorders are dangerous conditions, though their consequences
are often underestimated. Eating disorders are associated with serious
heart conditions, kidney failure, osteoporosis, infertility,
gastrointestinal disorders, and even death. The National Institute of
Mental Health estimates that one in 10 people with anorexia nervosa
will die of starvation, cardiac arrest, or some other medical
complication. Let me repeat that--one in 10. That is deeply disturbing,
and demands a much more aggressive federal response. Moreover,
fatalities resulting from eating disorders are grossly underreported,
because deaths are typically recorded by listing the immediate cause of
death, such as cardiac arrest, rather than the underlying cause, which
is the eating disorder.
Nonetheless, despite the prevalence and very serious health impacts
of eating disorders, we simply do not know enough about the causes of
eating disorders, or how to stop them from developing in the first
place. Research suggests a genetic component to eating disorders, but
we must learn more in order to effectively prevent these deadly
conditions before they start.
The good news is that eating disorders are treatable. With
appropriate nutritional, medical, and psychotherapeutic interventions,
those who suffer from eating disorders can be successfully and fully
treated and go on to live full and healthy lives. But right now, only
one in 10 people receive treatment. We know how to help people with
eating disorders and we need a renewed commitment to do just that.
The FREED Act takes an important step forward in authorizing
resources for research, screening, treatment, and prevention of eating
disorders.
First, the FREED Act expands research efforts at the National
Institutes of Health to examine the causes and consequences of eating
disorders. In order to effectively prevent and treat these conditions,
it is imperative that we understand them. The FREED Act also improves
surveillance and data collection systems at CDC so that we will have
accurate information and epidemiological data on eating disorders. Such
surveillance will provide us with the necessary information to be as
effective as possible with our interventions.
Second, the FREED Act expands access to treatment services and
screening for eating disorders for Medicaid beneficiaries, and
authorizes funds for a patient advocacy network that will help
individuals with eating disorders find treatment. Furthermore, the
FREED Act improves the training and education of health care providers
and educators so they know how to identify and treat individuals
suffering from eating disorders. Too often, eating disorders go
undiagnosed when health care providers lack the necessary training to
identify these illnesses.
Finally, we need to step up crucial efforts to prevent these
disorders from occurring in the first place. As I have said so many
times, we don't have a genuine health care system in America; we have a
sick care system. In other words, if you get sick, you get treatment.
But we spend just pennies on the dollar to prevent disease and illness
in the first place and need to place a much more robust emphasis on
wellness, nutrition, physical activity, and public health. With this in
mind, the FREED Act authorizes funds to develop and implement evidence-
based prevention programs and promote healthy eating behaviors in
schools, athletic programs, and other community-based programs, where
we can reach Americans at risk of developing these conditions.
Eating disorders touch the lives of so many of us and our families
and friends; nearly half of all Americans personally know someone with
an eating disorder. We must do a better job at the federal level of
conducting research, understanding treatment, and preventing these
conditions. The FREED Act builds on the investments we made in
prevention, wellness, and mental health in the Affordable Care Act and
mental health parity. Millions of American will benefit from our
attention to this significant public health problem.
I thank Senators Klobuchar and Franken for partnering with me on the
reintroduction of this bill, and urge our colleagues to join us in
supporting this important federal response to eating disorders.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 481
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Federal Response to
Eliminate Eating Disorders Act''.
SEC. 2. FINDINGS.
Congress finds as follows:
(1) Estimates, based on current research, indicate that at
least 5,000,000 people in the United States suffer from
eating disorders including anorexia nervosa, bulimia nervosa,
binge eating disorder, and eating disorders not otherwise
specified (referred to in this Act as ``EDNOS'').
(2) Anecdotal evidence suggests that as many as 11,000,000
people in the United States, including 1,000,000 males, may
suffer from eating disorders.
(3) Eating disorders occur in all nations and in all
populations, and among people of all ages and races and of
both genders.
(4) Eating disorders are diseases with grave health
consequences and high rates of mortality.
(5) Health consequences associated with eating disorders
include heart failure and other serious cardiac conditions,
electrolyte imbalance, kidney failure, osteoporosis,
debilitating tooth decay, and gastrointestinal disorders,
including esophageal inflammation and rupture, gastric
rupture, peptic ulcers, and pancreatitis.
(6) Anorexia nervosa has one of the highest overall
mortality rates of any mental illness. According to the
National Institute of Mental Health, 1 in 10 people with
anorexia nervosa will die of starvation, cardiac arrest, or
another medical complication.
[[Page S1229]]
(7) The risk of death among adolescents with anorexia
nervosa is 11 times greater than in disease-free adolescents.
(8) Anorexia nervosa has the highest suicide rate of all
mental illnesses.
(9) New research suggests that bulimia nervosa has a much
higher rate of mortality than is reflected in current
statistics, because of the failure to identify the underlying
eating disorder.
(10) Binge eating disorder is the most common eating
disorder, with an estimated 3.5 percent of American women and
2 percent of American men expected to suffer from this
disorder in their lifetime. Binge eating disorder is
characterized by frequent episodes of uncontrolled overeating
and is associated with obesity, heart disease, gall bladder
disease, and diabetes.
(11) Research demonstrates that there is a significant
genetic component to the development of eating disorders.
(12) Certain populations, including adolescent females and
athletes of both genders, are at higher risk of developing an
eating disorder.
(13) Different types of eating disorders may affect certain
races and genders disproportionately.
(14) Despite the serious health consequences and the high
risk of death, Federal research funding for eating disorders
has lagged behind research concerning other diseases, when
compared by the number of individuals affected by, and the
relative health consequences of, the diseases.
(15) The ability of individuals suffering from eating
disorders, particularly bulimia nervosa, binge eating
disorder, and EDNOS to access appropriate treatment is
unacceptably low.
(16) The development of an eating disorder is frequently
preceded by unhealthy weight control behaviors commonly
identified as disordered eating, including skipping meals,
using diet pills, taking laxatives, self-induced vomiting,
and fasting. Such disordered eating behaviors should be
included in enhanced research prevention and training
efforts.
SEC. 3. PURPOSES.
The purposes of this Act are--
(1) to expand research into the prevention of eating
disorders;
(2) to expand research on effective treatment and
intervention of eating disorders and to support evidence-
based programs designed to prevent eating disorders;
(3) to expand research on the causes, courses, and outcomes
of eating disorders;
(4) to increase the number of people properly screened and
diagnosed with an eating disorder;
(5) to improve training and education of health care and
behavioral care providers and of school personnel at all
levels of elementary and secondary education;
(6) to improve surveillance and data systems for tracking
the prevalence, severity, and economic costs of eating
disorders; and
(7) to enhance access to comprehensive treatment for eating
disorders.
TITLE I--EATING DISORDER DETECTION AND RESEARCH
SEC. 101. EXPANSION AND COORDINATION OF THE ACTIVITIES OF THE
NATIONAL INSTITUTE OF HEALTH AND THE NATIONAL
INSTITUTE OF MENTAL HEALTH WITH RESPECT TO
RESEARCH ON EATING DISORDERS.
Part B of title IV of the Public Health Service Act (42
U.S.C. 284 et seq.) is amended by adding at the end the
following:
``SEC. 409K. EXPANSION AND COORDINATION OF ACTIVITIES WITH
RESPECT TO RESEARCH ON EATING DISORDERS.
``(a) In General.--The Director of NIH, pursuant to the
general authority of such director, shall expand, intensify,
and coordinate the activities of the National Institutes of
Health with respect to research on eating disorders.
``(b) Grants.--The Director of NIH may award grants to
public or private entities to pay all or part of the cost of
planning, establishing, improving, and providing basic
operating support for such entities to establish consortia in
eating disorder research and to carry out the activities
described in subsection (e).
``(c) Eligible Entities.--To be eligible to receive a grant
under this section, an entity shall--
``(1) be public or nonprofit private entity (including a
health department of a State, a political subdivision of a
State, or an institution of higher education); and
``(2) submit to the Secretary an application at such time,
in such manner, and containing such information as the
Secretary may require.
``(d) Requirements of Consortia.--
``(1) In general.--Each consortium established as described
in subsection (b) may use the facilities of a single lead
institution, or may be formed from several cooperating
institutions, meeting such requirements as may be prescribed
by the Director of NIH.
``(2) Coordination of consortia.--The Director of NIH--
``(A) may, as appropriate, provide for the coordination of
information among consortia established under subsection (b);
and
``(B) shall ensure regular communication between members of
the various consortia established using grants awarded under
this section.
``(3) Reports.--The Director of NIH shall require each
consortium to prepare and submit to such director annual
reports on the activities of such consortium.
``(e) Activities.--Each consortium receiving a grant under
subsection (b) shall conduct basic, clinical,
epidemiological, population-based, or translational research
regarding eating disorders, which may include research
related to--
``(1) the identification and classification of eating
disorders and disordered eating;
``(2) the causes, diagnosis, and early detection of eating
disorders;
``(3) the treatment of eating disorders, including the
development and evaluation of new treatments and best
practices;
``(4) the conditions or diseases related to, or arising
from, an eating disorder; and
``(5) the evaluation of existing prevention programs and
the development of reliable prevention and screening
programs.
``(f) Collaboration.--The Secretary, acting through the
Director of NIH and the Director of the National Institute of
Mental Health, shall identify relevant Federal agencies
(including the other institutes and centers of the National
Institutes of Health, the Centers for Medicare & Medicaid
Services, the Centers for Disease Control and Prevention, the
Agency for Healthcare Research and Quality, the Substance
Abuse and Mental Health Services Administration, the Health
Resources and Services Administration, and the Office on
Women's Health) that shall collaborate with respect to
activities conducted under subsection (d).
``(g) Public Input.--The Director of NIH shall provide for
a mechanism--
``(1) to educate and disseminate information on the
existing and planned programs and research activities of the
National Institutes of Health with respect to eating
disorders; and
``(2) through which the Director of NIH may receive
comments from the public regarding such programs and
activities.
``(h) Dissemination of Information.--The Director of NIH
shall provide for a mechanism for making the results and
information generated by the consortia publicly available,
such as through the Internet.
``(i) Definition.--For purposes of this section, the term
`eating disorder' has the meaning given such term in section
399OO(e).
``(j) Authorization of Appropriations.--To carry out this
section, there are authorized to be appropriated such sums as
may be necessary for each of fiscal years 2012 through
2016.''.
SEC. 102. INTERAGENCY COORDINATING COUNCIL; SURVEILLANCE AND
RESEARCH PROGRAM; STUDY ON ECONOMIC COST.
Title III of the Public Health Service Act (42 U.S.C. 241
et seq.) is amended by adding at the end the following:
``PART W--PROGRAMS RELATING TO EATING DISORDERS
``SEC. 399OO. INTERAGENCY EATING DISORDERS COORDINATING
COUNCIL.
``(a) Establishment.--There is established within the
Department of Health and Human Services the Interagency
Eating Disorders Coordinating Council (referred to in this
section as the `Coordinating Council').
``(b) Responsibilities.--The Coordinating Council shall--
``(1) develop and annually update a summary of advances in
eating disorder research concerning causes of, prevention of,
early screening for, treatment and access to services related
to, and supports for individuals affected by, eating
disorders;
``(2) monitor Federal activities with respect to eating
disorders;
``(3) make recommendations to the Secretary regarding any
appropriate changes to such activities, and to the Director
of NIH, with respect to the strategic plan developed under
paragraph (4);
``(4) develop and annually update a strategic plan for the
conduct of, and support for, eating disorder research,
including proposed budgetary recommendations; and
``(5) submit annually to the Committee on Health,
Education, Labor, and Pensions of the Senate and the
Committee on Energy and Commerce of the House of
Representatives the strategic plan developed under paragraph
(4) and all updates to such plan.
``(c) Membership.--
``(1) Chairperson.--The Director of NIH shall serve as the
chairperson of the Coordinating Council and shall be
responsible for the leadership and oversight of the
activities of the Coordinating Council.
``(2) Members in general.--The Coordinating Council shall
be composed of--
``(A) representatives of--
``(i) the Agency for Healthcare Research and Quality;
``(ii) the Substance Abuse and Mental Health
Administration;
``(iii) the research institutes at the National Institutes
of Health, as the Director of NIH determines appropriate;
``(iv) the Health Resources and Services Administration;
``(v) the Centers for Medicare & Medicaid Services;
``(vi) the Office on Women's Health;
``(vii) the Centers for Disease Control and Prevention;
``(viii) the Department of Education; and
``(ix) any other Federal agency that the chairperson
determines is appropriate; and
``(B) the additional members appointed under paragraph (3).
``(3) Additional members.--Not fewer than \1/3\ of the
total membership of the Coordinating Council shall be
composed of non-Federal public members to be appointed by the
Secretary, including representatives of--
``(A) academic medical centers or schools of medicine,
nursing, or other health professions;
[[Page S1230]]
``(B) health care professionals who are actively involved
in the treatment of eating disorders;
``(C) researchers with expertise in eating disorders; and
``(D) at least 2 individuals with a past or present
diagnosis of an eating disorder or parents of individuals
with a past or present diagnosis of an eating disorder.
``(d) Administrative Support; Terms of Service; Other
Provisions.--
``(1) Administrative support.--The Coordinating Council
shall receive necessary and appropriate administrative
support from the Secretary.
``(2) Terms of service.--Members of the Coordinating
Council appointed under subsection (c)(2) shall serve for a
term of 4 years, and may be reappointed for one or more
additional 4 year-terms. Any member appointed to fill a
vacancy for an unexpired term shall be appointed for the
remainder of such term. A member may serve after the
expiration of the member's term until a successor has taken
office.
``(3) Meetings.--
``(A) In general.--The Coordinating Council shall meet at
the call of the chairperson or upon the request of the
Secretary. The Coordinating Council shall meet not fewer than
2 times each year.
``(B) Notice.--Notice of any upcoming meeting of the
Coordinating Council shall be published in the Federal
Register.
``(C) Public access.--Each meeting of the Coordinating
Council shall be open to the public and shall include
appropriate periods of time for questions by the public.
``(4) Subcommittees.--In carrying out its functions the
Coordinating Council may establish subcommittees and convene
workshops and conferences.
``(e) Eating Disorder.--In this part, the term `eating
disorder' includes anorexia nervosa, bulimia nervosa, binge
eating disorder, and eating disorders not otherwise
specified, as defined in the fourth edition of the Diagnostic
and Statistical Manual of Mental Disorders or any subsequent
edition.
``(f) Authorization of Appropriations.--To carry out this
section, there are authorized to be appropriated such sums as
may be necessary for each of fiscal years 2012 through 2016.
``SEC. 399OO-1. EATING DISORDER SURVEILLANCE AND RESEARCH
PROGRAM.
``(a) In General.--The Secretary, acting through the
Director of the Centers for Disease Control and Prevention,
shall award grants or cooperative agreements to eligible
entities for the purpose of improving the collection,
analysis and reporting of State epidemiological data on
eating disorders.
``(b) Activities.--An eligible entity shall assist with the
development and coordination of eating disorder surveillance
efforts within a region and may--
``(1) provide for the collection, analysis, and reporting
of epidemiological data on eating disorders through the
existing surveillance programs;
``(2) develop recommendations to enhance existing
surveillance programs to more accurately collect
epidemiological data on disordered eating and eating
disorders, including the prevalence, incidence, trends,
correlates, mortality, and causes of eating disorders and the
effects of eating disorders on quality of life;
``(3) develop recommendations to improve requirements for
ensuring that eating disorders are accurately recorded as
underlying and contributing causes of death; and
``(4) assist with the development and coordination of
surveillance efforts within a region.
``(c) Eligible Entities.--To be eligible to receive an
award under this section, an entity shall--
``(1) be a public or nonprofit private entity (including a
health department of a State, a political subdivision of a
State, or an institution of higher education); and
``(2) submit to the Secretary an application at such time,
in such manner, and containing such information as the
Secretary may require.
``(d) Technical Assistance.--In making awards under this
section, the Secretary may provide direct technical
assistance in lieu of cash.
``(e) Reports.--Each entity awarded a grant or cooperative
agreement under this section shall annually submit to the
Secretary a report describing the activities conducted using
grant funds and providing recommendations for improving the
collection, analysis, and reporting of epidemiological data
on eating disorders.
``(f) Authorization of Appropriations.--To carry out this
section, there are authorized to be appropriated such sums as
may be necessary for each of fiscal years 2012 through 2016.
``SEC. 399OO-2. STUDY REGARDING ECONOMIC COSTS OF EATING
DISORDERS.
``Not later than 18 months after the date of enactment of
the Federal Response to Eliminate Eating Disorders Act, the
Secretary, acting through the Director of the Centers for
Disease Control and Prevention, shall conduct a study
evaluating the economic costs of eating disorders. Such study
may examine years of productive life lost, missed days of
work, reduced work productivity, costs of medical and mental
health treatment, costs to family, and costs to society as a
result of eating disorders.''.
TITLE II--EATING DISORDER EDUCATION AND PREVENTION; STUDIES ON EATING
DISORDERS AND BODY MASS INDEX; PUBLIC SERVICE ANNOUNCEMENTS
SEC. 201. GRANTS TO PREVENT EATING DISORDERS.
Title III of the Public Health Service Act (42 U.S.C. 241
et seq.), as amended by section 102, is further amended by
adding at the end the following:
``SEC. 399OO-3. GRANTS TO PREVENT EATING DISORDERS.
``(a) In General.--The Secretary, acting through the
Director of the Centers for Disease Control and Prevention
and in coordination with the Administrator of the Health
Resources and Services Administration, shall award grants to
eligible entities to plan, implement, and evaluate programs
to prevent eating disorders and obesity and the acute and
chronic medical conditions that accompany such conditions,
and to promote healthy body image and appropriate nutrition-
based eating behaviors.
``(b) Eligibility.--To be eligible to receive a grant under
this section, an entity shall--
``(1) be a State, local or tribal educational agency, an
accredited institution of higher education, a State or local
health department, or a community based organization; and
``(2) submit an application to the Secretary at such time,
in such manner, and containing such information as the
Secretary may require.
``(c) Use of Funds.--An entity receiving a grant under this
section shall fund development and testing of school-,
clinic-, community-, or health department-based programs
designed to promote healthy eating behaviors and to prevent
eating disorders including--
``(1) developing evidence-based interventions to prevent
eating disorders, including educational or intervention
programs regarding nutritional content, understanding and
responding to hunger and satiety, positive body image
development, positive self-esteem development, and life
skills, that take into account cultural and developmental
issues and the role of family, school, and community;
``(2) planning and implementing a healthy lifestyle
curriculum or program with an emphasis on healthy eating
behaviors, physical activity, and emotional wellness, the
connection between emotional and physical health, and the
prevention of bullying based on body size, shape, and weight;
``(3) forming partnerships with parents and caregivers to
educate adults about identifying unhealthy eating behaviors
and promoting healthy eating behaviors, physical activity,
and emotional wellness; and
``(4) integrating eating disorder prevention and awareness
in physical education, health, education, athletic training
programs, and after-school recreational sports programs, to
the extent possible.
``(d) Requirements of Grant Recipients.--
``(1) Limitation on administrative expenses.--A recipient
of a grant under this section shall not use more than 10
percent of the amounts received under a grant under this
section for administrative expenses.
``(2) Contribution of funds.--A recipient of a grant under
this section, and any entity receiving assistance under the
grant for training and education, shall contribute non-
Federal funds, either directly or through in-kind
contributions, to the costs of the activities to be funded
under the grant in an amount that is not less than 10 percent
of the total cost of such activities.
``(3) Evaluation.--Each recipient of a grant under this
section shall provide to the Secretary, in such form and
manner as the Secretary shall specify, relevant data and an
evaluation of the activities of the grant recipient in
promoting healthy eating behaviors and preventing eating
disorders. Evaluation reports shall be made publicly
available, such as through the Internet.
``(e) Technical Assistance.--The Secretary may set aside an
amount not to exceed 1 percent of the total amount
appropriated for a fiscal year to provide grantees with
technical support in the development, implementation, and
evaluation of programs under this section and to disseminate
information about preventing and treating eating disorders
and obesity.
``SEC. 399OO-4. STUDY OF EATING DISORDERS IN ELEMENTARY
SCHOOLS, SECONDARY SCHOOLS, AND INSTITUTIONS OF
HIGHER EDUCATION.
``Not later than 18 months after the date of enactment of
the Federal Response to Eliminate Eating Disorders Act, the
National Center for Health Statistics of the Centers for
Disease Control and Prevention and the National Center for
Education Statistics of the Department of Education shall
conduct a joint study, or enter into a contract to have a
study conducted, on the impact eating disorders have on
educational advancement and achievement. The study shall--
``(1) determine the incidence of eating disorders and
disordered eating among students, and the morbidity and
mortality rates associated with eating disorders;
``(2) evaluate the extent to which students with eating
disorders are more likely to miss school, have delayed rates
of development, or have reduced cognitive skills;
``(3) report on current State and local programs to
increase awareness about the dangers of eating disorders
among youth and to prevent eating disorders and the risk
factors for eating disorders, and evaluate the value of such
programs; and
``(4) make recommendations on measures that could be
undertaken by Congress, the Department of Education, States,
and local educational agencies to strengthen eating
[[Page S1231]]
disorder prevention and awareness programs including
development of best practices.
``SEC. 399OO-5. STUDY OF THE SUITABILITY OF MANDATING BODY
MASS INDEX REPORTING IN ELEMENTARY SCHOOLS AND
SECONDARY SCHOOLS.
``Not later than 18 months after the date of enactment of
the Federal Response to Eliminate Eating Disorders Act, the
Director of the Centers for Disease Control and Prevention,
in consultation with the Secretary of Education, shall
conduct a study on mandatory reporting of body mass index,
including--
``(1) how many schools are currently conducting mandatory
reporting of body mass index;
``(2) how schools are assessing the impacts of such
mandatory reporting on body mass index; and
``(3) how schools are assessing potential unintended
consequences of such mandatory reporting on students,
including those related to parent and peer relations.
``SEC. 399OO-6. PUBLIC SERVICE ADVERTISEMENTS.
``The Secretary, in consultation with the Director of the
National Institutes of Health and the Secretary of Education,
shall carry out a program to develop, distribute, and promote
the broadcasting of public service announcements to improve
public awareness of, and to promote the identification and
prevention, of eating disorders.
``SEC. 399OO-7. AUTHORIZATION OF APPROPRIATIONS.
``To carry out sections 399OO-3, 399OO-4, 399OO-5, and
399OO-6, there are authorized to be appropriated such sums as
may be necessary for each of fiscal years 2012 through
2016.''.
SEC. 202. SENSE OF THE SENATE.
It is the sense of the Senate that critically necessary
programs to reduce obesity in children may also
unintentionally increase the unhealthy weight control
behaviors that can lead to development of eating disorders,
and that federally funded programs to combat obesity should
take this connection into consideration.
TITLE III--IMPROVING TRAINING IN HEALTH PROFESSIONS, EDUCATION, AND
RELATED FIELDS
SEC. 301. GRANTS FOR HEALTH PROFESSIONALS.
Part D of title VII of the Public Health Service Act (42
U.S.C. 294 et seq.) is amended by adding at the end the
following:
``SEC. 760. GRANTS FOR HEALTH PROFESSIONALS.
``(a) Grants.--The Secretary, acting through the
Administrator of the Health Resources and Services
Administration, in collaboration with the Director of the
Centers for Disease Control and Prevention, shall award
grants under this section to develop interdisciplinary
training and education programs that provide undergraduate,
graduate, post-graduate medical, nursing (including advanced
practice nursing students), dental, mental and behavioral
health, pharmacy, and other health professions students or
residents with an understanding of, and clinical skills
pertinent to identifying and treating, eating disorders.
``(b) Eligibility.--To be eligible to receive a grant under
this section an entity shall--
``(1) be an accredited school of allopathic or osteopathic
medicine, or an accredited school of nursing, public health,
social work, dentistry, behavioral and mental health, or
pharmacy, or an accredited medical, dental, or nursing
residency program;
``(2) prepare and submit to the Secretary an application at
such time, in such manner, and containing such information as
the Secretary may require.
``(c) Use of Funds.--
``(1) Required uses.--Amounts provided under a grant
awarded under this section shall be used to fund
interdisciplinary training and education projects that are
designed to train medical, nursing, and other health
professions students and residents to--
``(A) better identify patients at-risk of becoming
overweight or obese or developing an eating disorder;
``(B) detect overweight or obesity or eating disorders
among a diverse patient population;
``(C) counsel, refer, or treat patients with overweight or
obesity or an eating disorder;
``(D) educate patients and the families of patients about
effective strategies to establish healthy eating habits and
appropriate levels of physical activity; and
``(E) assist in the creation and administration of
community-based overweight and obesity and eating disorder
prevention efforts.''
``(2) Permissive use.--Amounts provided under a grant under
this section may be used to offer community-based training
opportunities in rural areas for medical, nursing, and other
health professions students and residents on eating
disorders, which may include the use of distance learning
networks and other available technologies needed to reach
isolated rural areas.
``(d) Requirements of Grantees.--
``(1) Limitation on administrative expenses.--A grantee
shall not use more than 10 percent of the amounts received
under a grant under this section for administrative expenses.
``(2) Contribution of funds.--A grantee under this section,
and any entity receiving assistance under the grant for
training and education, shall contribute non-Federal funds,
either directly or through in-kind contributions, to the
costs of the activities to be funded under the grant in an
amount that is not less than 10 percent of the total cost of
such activities.
``(e) Eating Disorder.--In this section, the term `eating
disorder' has the meaning given such term in section
399OO(e).
``(f) Authorization of Appropriations.--There are
authorized to be appropriated to carry out this section such
sums as may be necessary for fiscal years 2012 through
2016.''.
SEC. 302. TRAINING IN ELEMENTARY AND SECONDARY SCHOOLS.
Section 5131(a) of the Elementary and Secondary Education
Act of 1965 (20 U.S.C. 7215(a)) is amended by adding at the
end the following:
``(28) Programs to improve the identification of students
with eating disorders (as defined in section 399OO of the
Public Health Service Act), increase awareness of such
disorders among parents and students, and train educators
(including teachers, school nurses, school social workers,
coaches, school counselors, and administrators) on effective
eating disorder prevention, screening, detection and
assistance methods.''.
TITLE IV--IMPROVING AVAILABILITY AND ACCESS TO TREATMENT
SEC. 401. MEDICAID COVERAGE FOR EATING DISORDER TREATMENT
SERVICES.
(a) In General.--Section 1905 of the Social Security Act
(42 U.S.C. 1396d(a)) is amended--
(1) in subsection (a)--
(A) in paragraph (28), by striking ``and'' at the end;
(B) by redesignating paragraph (29) as paragraph (30); and
(C) by inserting after paragraph (28) the following new
paragraph:
``(29) eating disorder treatment services (as defined in
subsection (ee)(1)); and''; and
(2) by adding at the end the following new subsection:
``(ee) Eating Disorder Treatment Services.--
``(1) Definition.--The term `eating disorder treatment
services' means services relating to diagnosis and treatment
of an eating disorder (as defined in section 399OO of the
Public Health Service Act), including screening, counseling,
pharmacotherapy (including coverage of drugs described in
paragraph (2)), and other necessary health care services.
``(2) Coverage for pharmacological treatment of eating
disorders.--For purposes of paragraph (1), eating disorder
treatment services shall include drugs provided as part of
care in an inpatient setting, covered outpatient drugs (as
defined in section 1927(k)(2)), and non-prescription drugs
described in section 1927(d)(2)(A) that are prescribed, in
accordance with generally accepted medical guidelines, for
treatment of an eating disorder.''.
(b) Increased FMAP for Eating Disorder Treatment
Services.--
(1) Effective until january 1, 2013.--Section 1905(b) of
the Social Security Act (42 U.S.C. 1396d(b)) is amended in
the first sentence--
(A) by striking ``and'' before ``(4)''; and
(B) by inserting before the period at the end the
following: ``, and (5) the Federal medical assistance
percentage shall be equal to the enhanced FMAP described in
section 2105(b) with respect to medical assistance for eating
disorder treatment services (as defined in subsection
(ee)(1)) provided to an individual who is eligible for such
assistance and has an eating disorder (as defined in section
399OO of the Public Health Service Act)''.
(2) Effective january 1, 2013.--Section 4106(b) of the
Patient Protection and Affordable Care Act (Public Law 111-
148) is amended--
(A) in paragraph (1), by striking ``(4)'' each time such
term appears and inserting ``(5)''; and
(B) in paragraph (2), by striking ``, and (5)'' and
inserting ``, and (6)''.
(c) Inclusion in EPSDT Services.--Section 1905(r)(1)(B) of
such Act (42 U.S.C. 1396d(r)(1)(B)) is amended--
(1) in clause (iv), by striking ``and'' at the end;
(2) in clause (v), by striking the period at the end and
inserting ``; and''; and
(3) by inserting after clause (v) the following new clause:
``(vi) appropriate diagnostic services relating to eating
disorders (as defined in section 399OO of the Public Health
Service Act).''.
(d) Exception From Optional Restriction Under Medicaid Drug
Coverage.--Section 1927(d)(2)(A) of such Act (42 U.S.C.
1396r-8(d)(2)(A)) is amended by inserting before the period
at the end the following: ``, except for drugs that are
prescribed, in accordance with generally accepted medical
guidelines, for the purpose of treatment of an individual who
is eligible for medical assistance under the State plan and
has an eating disorder (as defined in section 399OO of the
Public Health Service Act)''.
(e) Effective Date.--The amendments made by this section
shall apply to drugs and services furnished on or after
January 1, 2012.
SEC. 402. GRANTS TO SUPPORT PATIENT ADVOCACY.
Subpart II of part D of title IX of the Public Health
Service Act is amended by adding at the end the following:
``SEC. 938. GRANTS TO SUPPORT PATIENT ADVOCACY.
``(a) Grants.--The Secretary, acting through the Director,
shall award grants under this section to develop and support
patient advocacy work to help individuals with eating
disorders obtain adequate health care services and insurance
coverage.
[[Page S1232]]
``(b) Eligibility.--To be eligible to receive a grant under
this section, an entity shall--
``(1) be a public or nonprofit private entity (including a
health department of a State or tribal agency, a community-
based organization, or an institution of higher education);
``(2) prepare and submit to the Secretary an application at
such time, in such manner, and containing such information as
the Secretary may require, including--
``(A) comprehensive strategies for advocating on behalf of,
and working with, individuals with eating disorders or at
risk for developing eating disorders;
``(B) a plan for consulting with community-based
coalitions, treatment centers, or eating disorder research
experts who have experience and expertise in issues related
to eating disorders or patient advocacy in providing services
under a grant awarded under this section; and
``(C) a plan for financial sustainability involving State,
local, and private contributions.
``(c) Use of Funds.--Amounts provided under a grant awarded
under this section shall be used to support patient advocacy
work, including--
``(1) providing education and outreach in community
settings regarding eating disorders and associated health
problems, especially among low-income, minority, and
medically underserved populations;
``(2) facilitating access to appropriate, adequate, and
timely health care for individuals with eating disorders and
associated health problems;
``(3) assisting in communication and cooperation between
patients and providers;
``(4) representing the interests of patients in managing
health insurance claims and plans;
``(5) providing education and outreach regarding enrollment
in health insurance, including enrollment in the Medicare
program under title XVIII of the Social Security Act, the
Medicaid program under title XIX of such Act, and the
Children's Health Insurance Program under title XXI of such
Act;
``(6) identifying, referring, and enrolling underserved
populations in appropriate health care agencies and
community-based programs and organizations in order to
increase access to high-quality health care services;
``(7) providing technical assistance, training, and
organizational support for patient advocates; and
``(8) creating, operating, and participating in State or
regional networks of patient advocates.
``(d) Requirements of Grantees.--
``(1) Limitation on administrative expenses.--A grantee
shall not use more than 5 percent of the amounts received
under a grant under this section for administrative expenses.
``(2) Contribution of funds.--A grantee under this section,
and any entity receiving assistance under the grant for
training and education, shall contribute non-Federal funds,
either directly or through in-kind contributions, to the
costs of the activities to be funded under the grant in an
amount that is not less than 75 percent of the total cost of
such activities.
``(3) Reporting to secretary.--A grantee under this section
shall annually submit to the Secretary a report, at such
time, in such manner, and containing such information as the
Secretary may require, including a description and evaluation
of the activities described in subsection (c) carried out by
such entity.
``(e) Eating Disorder.--In this section, the term `eating
disorder' has the meaning given such term in section
399OO(e).
``(f) Authorization of Appropriations.--To carry out this
section, there are authorized to be appropriated such sums as
may be necessary for fiscal years 2012 through 2016.''.
______
By Mr. REED (for himself, Mr. Durbin, Mr. Merkley, Mr.
Whitehouse, Mr. Franken, and Mr. Leahy):
S. 489. A bill to require certain mortgagees to evaluate loans for
modifications, to establish a grant program for State and local
government mediation programs, and for other purposes; to the Committee
on Banking, Housing, and Urban Affairs.
Mr. REED. Mr. President, today I am introducing the Preserving Homes
and Communities Act. I introduced an earlier version of this
legislation in 2009. I am pleased to again be joined by Senators
Durbin, Leahy, Merkley, Whitehouse, and Franken as cosponsors of this
bill.
The sheer number of foreclosures across the country is startling.
Since the beginning of 2009, there have been approximately 5 million
foreclosures, and the Center for Responsible Lending estimates there
will be a total of 9 million foreclosures between 2009 and 2012. In my
home state of Rhode Island, the numbers are similarly shocking because
1 in every 10 mortgaged homeowners is in foreclosure or seriously
delinquent on their mortgage payment.
Rhode Island families have felt the effects of the recession and the
national housing crisis harder than most, which is why I worked with
the Obama Administration and led the effort to expand the Hardest Hit
Fund to include Rhode Island. This program is just getting underway,
and my hope is that it will provide much needed targeted assistance to
struggling homeowners and expand the number of loss mitigation tools in
order to prevent more Rhode Islanders from falling into foreclosure.
Unfortunately, additional efforts are needed because the foreclosure
crisis has grown in complexity as a result of the revelations last fall
pointing to poorly handled, if not illegal, foreclosure processing.
Cutting these corners at the risk of severe legal consequences raises
serious questions about not only the value of mortgage related
investments, but also the loan modification efforts of servicers.
I will persist in my efforts to fight improper foreclosures and to
bring Rhode Islanders the relief they deserve, and this commitment
continues today with the introduction of the Preserving Homes and
Communities Act. This bill has been updated and enhanced from its
predecessor in the last Congress to reflect the fact that some
provisions have been enacted into law and to address emerging issues
that are standing in the way of saving as many homes as possible.
Most importantly, this bill, like the one I introduced in 2009,
eliminates the so called ``dual-track'' in which a homeowner is
evaluated for a home loan modification while simultaneously being
foreclosed upon. The prospect of losing one's home is daunting enough,
and unfortunately, too many troubled homeowners have received a
modification notice one day followed by a foreclosure notice the next
day. This is just too confusing and injects additional uncertainty at
the most unnerving time for a troubled homeowner. Simply put, there
should be no dual track. There should be one track, and while a
troubled homeowner is being evaluated for a loan modification, they
should have the comfort of knowing that foreclosure proceedings will
not be initiated. This bill establishes this single track.
Second, in light of the repeated difficulties that troubled
homeowners have faced in contacting and remaining in touch with their
servicers, this bill continues to provide a means for more State and
local governments to establish mediation programs. These programs
provide a process by which a neutral third party presides over
discussions between homeowners and servicers to review and discuss
alternatives to foreclosure.
Third, with this bill, I continue my efforts to fund the National
Housing Trust Fund, which would enable the building, preservation, and
rehabilitation of affordable rental housing through the proceeds
received from the warrant provisions I crafted for the financial rescue
package in 2008. These warrant provisions ensured that as banking
institutions recovered from their near collapse, American taxpayers,
who bankrolled their recovery, would also benefit from the upside. To
date, more than $8 billion in warrant proceeds have been recouped by
taxpayers. As I have stated before, my view is that some of these
returns from providing a firmer foundation for our financial
institutions would be put to good use by providing a firmer foundation
for affordable rental housing in our country by finally funding the
National Housing Trust Fund.
This bill also has several new provisions. First, in response to
repeated concerns that the loan modification process has been lacking
in transparency, this bill creates a dispute resolution mechanism
within the loan modification process itself. Under this bill, troubled
homeowners and servicers may work out their disagreements with a
neutral third party on a fair playing field with all the information
required to evaluate whether a home loan modification application was
properly evaluated.
Second, this legislation addresses the recent robo-signing
allegations by requiring servicers, if a home loan modification is
denied, to prove that they actually have the legal right to foreclose.
Third, this bill responds to difficulties faced by individuals who,
for example, have come to own and live in a mortgaged home through the
death of a loved one. These unfortunate life events are tough enough.
As long as these individuals live in these homes as
[[Page S1233]]
their primary residences and are having difficulties paying their
mortgages due to financial hardship, they too would have to be
evaluated for a loan modification before banks could foreclose under my
legislation.
Fourth, this bill adds another provision to the section placing
reasonable limits on foreclosure fees and costly markups by prohibiting
abusive fees charged in response to lapsed home insurance policies.
Under this bill, when a home insurance policy lapses, the servicer may
only charge a fee in an amount equal to the cost of continuing or re-
establishing the home insurance policy. No more, and no less.
Lastly, I think it's important to make one final point about this
bill. It provides the means for servicers to legitimately evaluate
struggling homeowners for loan modifications, but it does not require
servicers to work with homeowners who have clearly abandoned their
homes, as determined by the Secretary of Housing and Urban Development.
This bill is narrowly and responsibly tailored to prevent foreclosures
that can be avoided and to ensure that all finalized foreclosures are
properly and objectively processed. In short, this legislation is fair.
The foreclosure crisis has persisted for far too long, and it is time
to finally address this issue once and for all. The Preserving Homes
and Communities Act provides a path to stabilizing the housing sector
as a means of bolstering and sustaining our economic recovery. I hope
my colleagues will join me and Senators Durbin, Leahy, Merkley,
Whitehouse, and Franken in supporting this bill and taking the
legislative steps necessary to address foreclosures.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 489
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Preserving Homes and
Communities Act of 2011''.
SEC. 2. DEFINITION.
In this Act, the term ``Secretary'' means the Secretary of
Housing and Urban Development.
SEC. 3. LOAN MODIFICATION REQUIREMENTS.
(a) Definitions.--In this section--
(1) the term ``covered mortgagee'' means--
(A) an original lender under a federally related mortgage
loan;
(B) any servicer, affiliate, agent, subsidiary, successor,
or assignee of a lender under a federally related mortgage
loan; and
(C) any purchaser, trustee, or transferee of any mortgage
or credit instrument issued by an original lender under a
federally related mortgage loan;
(2) the term ``covered mortgagor''--
(A) means an individual--
(i) who--
(I) is a mortgagor under a federally related mortgage
loan--
(aa) made by a covered mortgagee; and
(bb) secured by the principal residence of the mortgagor;
or
(II) is eligible to assume a federally related mortgage
loan described in clause (I) in a manner described in
paragraph (3), (5), (6), or (7) of section 341(d) of the
Garn-St Germain Depository Institutions Act of 1982 (12
U.S.C. 1701j-3(d)), if the principal residence of the
individual is the principal residence securing the federally
related mortgage loan; and
(ii) who cannot make payments on a federally related
mortgage loan due to financial hardship, as determined by the
Secretary, in consultation with the Secretary of the Treasury
and the Director of the Bureau of Consumer Financial
Protection; and
(B) does not include an individual who the Secretary, in
consultation with the Secretary of the Treasury and the
Director of the Bureau of Consumer Financial Protection,
determines has abandoned the principal residence securing the
federally related mortgage loan;
(3) the term ``federally related mortgage loan'' has the
same meaning as in section 3 of the Real Estate Settlement
Procedures Act of 1974 (12 U.S.C. 2602);
(4) the term ``home loan modification protocol'' means a
home loan modification protocol that--
(A) is developed under a home loan modification program
developed or put into effect by the Secretary of the
Treasury, the Secretary, or the Director of the Bureau of
Financial Protection;
(B) includes principal reduction; and
(C) to the extent possible, in the case of real property on
which there is a first lien and a subordinate lien securing a
federally related mortgage loan, requires that any principal
reduction with respect to the first lien be accompanied by a
proportional principal reduction with respect to the
subordinate lien;
(5) the term ``qualified loan modification'' means a
modification to the terms of a mortgage agreement between a
covered mortgagee and a covered mortgagor that--
(A) is made pursuant to a determination by the covered
mortgagee using a home loan modification protocol that a
modification would--
(i) produce a greater net present value than not modifying
the loan to--
(I) the covered mortgagee; or
(II) in the aggregate, all persons that hold an interest in
the mortgage agreement; and
(ii) produce mortgage payments that, at a minimum, are
reduced to an affordable and sustainable amount, based on a
debt-to-income ratio that takes into account the total
housing debt and gross household income of the covered
mortgagor;
(B) applies for the remaining term of the original mortgage
agreement, prior to modification or amendment; and
(C) permits the maximum amount of principal reduction that
produces a greater net present value than foreclosure to the
persons described in subparagraph (A)(i); and
(6) the term ``State'' means any State of the United
States, the District of Columbia, any territory of the United
States, Puerto Rico, Guam, American Samoa, the Trust
Territory of the Pacific Islands, the Virgin Islands, and the
Northern Mariana Islands.
(b) Loan Modification Procedures.--
(1) Initiation of foreclosure.--A covered mortgagee may not
initiate a nonjudicial foreclosure or a judicial foreclosure
against a covered mortgagor that is otherwise authorized
under State law unless--
(A) the covered mortgagee has used its best efforts to
determine whether the covered mortgagor is eligible for a
qualified loan modification;
(B) in the case of a covered mortgagor who the covered
mortgagee determines is eligible for a qualified loan
modification, the covered mortgagee has used its best efforts
to promptly offer a qualified loan modification to the
covered mortgagor; and
(C) in the case of a covered mortgagor who the covered
mortgagee determines is not eligible for a qualified loan
modification, the covered mortgagee has made available to the
covered mortgagor documentation of--
(i) a loan modification calculation or net present value
calculation, including the information necessary to verify
and evaluate the calculation, made by the covered mortgagee
in relation to the federally related mortgage using a home
loan modification protocol;
(ii) the loan origination, including any note, deed of
trust, or other document necessary to establish the right of
the mortgagee to foreclose on the mortgage, including proof
of assignment of the mortgage to the mortgagee and the right
of the mortgagee to enforce the relevant note under the law
of the State in which the real property securing the mortgage
is located;
(iii) any pooling and servicing agreement that the covered
mortgagee believes prohibits a qualified loan modification;
(iv) the payment history of the covered mortgagor and a
detailed accounting of any costs or fees associated with the
account of the covered mortgagor; and
(v) the specific alternatives to foreclosure considered by
the covered mortgagee, including qualified loan
modifications, workout agreements, and short sales.
(2) Foreclosure in progress.--If a covered mortgagee
initiated a nonjudicial foreclosure or a judicial foreclosure
proceeding against a covered mortgagor before the date of
enactment of this Act, the covered mortgagee--
(A) shall use its best efforts to take all steps necessary
to--
(i) suspend the foreclosure or foreclosure proceeding, as
permitted under the law of the State in which the real
property securing the federally related mortgage loan is
located, including the cancellation of any sale date that has
been scheduled with respect to the real property securing the
federally related mortgage loan; and
(ii) toll any deadlines limiting the rights of the covered
mortgagor, whether imposed by statute, scheduling order, or
otherwise, until the covered mortgagee has complied with the
requirements under this section; and
(B) may not--
(i) conduct or schedule a sale of the real property
securing the federally related mortgage loan; or
(ii) cause judgment to be entered against the covered
mortgagor.
(3) Reevaluation of application for qualified loan
modification.--If, after receiving information under
paragraph (1)(C), a covered mortgagor is able to demonstrate
that the covered mortgagor is eligible for a qualified loan
modification, the covered mortgagee shall--
(A) promptly reevaluate the application by the covered
mortgagor for a qualified loan modification; and
(B) if the covered mortgagor is eligible, offer the covered
mortgagor a qualified loan modification.
(4) Dispute resolution.--Not later than 90 days after the
date of enactment of this Act, the Secretary of the Treasury,
the Secretary, and the Director of the Bureau of Financial
Protection shall ensure that any home loan modification
protocol established by the Secretary of the Treasury, the
Secretary, or the Director of the Bureau of Financial
Protection, respectively, includes a procedure with a neutral
third party to resolve disputes between covered mortgagors
[[Page S1234]]
and covered mortgagees regarding applications for qualified
loan modifications.
(5) No waiver of rights.--A covered mortgagee may not
require a covered mortgagor to waive any right of the covered
mortgagor as a condition of making a qualified loan
modification.
(6) Certification required prior to sale of real property
securing mortgage.--
(A) Certification.--A covered mortgagee shall submit to the
appropriate State entity in the State in which the real
property securing a federally related mortgage loan is
located a certification that the covered mortgagee has
complied with all requirements of this section, before--
(i) the covered mortgagee may sell the real property; or
(ii) a purchaser at sale may file an action to recover
possession of the real property.
(B) Recordation of deed prohibited without certification.--
The government official responsible for recording deeds and
other transfers of real property in a jurisdiction may not
permit the recordation of a deed transferring title after a
foreclosure relating to a federally related mortgage loan in
the jurisdiction unless the government official certifies
that--
(i) the person conducting the sale has demonstrated that
the requirements of this subsection have been met with
respect to the federally related mortgage loan; or
(ii) the requirements of this subsection do not apply to
the federally related mortgage loan.
(C) Voiding of sale.--A sale of property in violation of
this subsection is void.
(D) Regulations.--The Secretary, in consultation with the
Secretary of the Treasury and Director of the Bureau of
Consumer Financial Protection, shall issue regulations
establishing the content of the certification under this
subparagraph.
(7) Bar to foreclosure.--Failure to comply with this
subsection is a bar to foreclosure under the applicable law
of a State.
(8) Rule of construction.--Nothing in this subsection may
be construed to prevent a covered mortgagee from offering or
making a loan modification with a lower payment, lower
interest rate, or principal reduction beyond that required by
a modification made using a home loan modification protocol
with respect to a covered mortgagor.
(c) Fees Prohibited.--
(1) Loan modification fees prohibited.--A covered mortgagee
may not charge a fee to a covered mortgagor for carrying out
the requirements under subsection (b).
(2) Foreclosure-related fees.--
(A) In general.--Except as provided in subparagraph (B) and
(C), a covered mortgagee may not charge a foreclosure-related
fee to a covered mortgagor before--
(i) the covered mortgagee has made a determination under
subsection (b)(1); and
(ii) the mortgage has entered the foreclosure process.
(B) Delinquency fees.--A covered mortgagee may charge 1
delinquency fee for each late payment by a covered mortgagor,
if the fee is specified by the mortgage agreement and
permitted by other applicable Federal and State law. A
delinquency fee may be collected only once on an installment
however long it remains in default.
(C) Other fees.--A covered mortgagee may charge a covered
mortgagor 1 property valuation fee and 1 title search fee in
connection with a foreclosure.
(3) Fees not in contract.--A covered mortgagee may charge a
fee to a covered mortgagor only if--
(A) the fee was specified by the mortgage agreement before
a modification or amendment; and
(B) the fee is otherwise permitted under this subsection.
(4) Fees for expenses incurred.--
(A) In general.--A covered mortgagee may charge a fee to a
covered mortgagor only--
(i) for services actually performed by the covered
mortgagee or a third party in relation to the mortgage
agreement, before a modification or amendment; and
(ii) if the fee is reasonably related to the actual cost of
providing the service.
(B) Home preservation services.--A covered mortgagee may
charge a fee to a covered mortgagor for home preservation
services, only if the covered mortgagor has not submitted a
payment under the federally related mortgage during the 60-
day period ending on the date the fee is charged.
(5) Forceplaced insurance.--
(A) Fee permitted.--If a home insurance policy on the real
property securing a federally related mortgage loan lapses
due to the failure of a covered mortgagor to make a payment,
a covered mortgagee may charge the covered mortgagor a fee in
an amount equal to the actual cost of continuing or re-
establishing the home insurance policy on the same terms in
effect before the lapse.
(B) Recovery of fee.--A covered mortgagee may recover the
fee described in subparagraph (A)--
(i) by establishing an escrow account in accordance with
section 10 of the Real Estate Settlement Procedures Act of
1974 (12 U.S.C. 2609); or
(ii) in equal monthly amounts during one 12-month period.
(6) Penalty.--The Director of the Bureau of Consumer
Financial Protection shall collect from any covered mortgagee
that charges a fee in violation of this subsection an amount
equal to $6,000 for each such fee.
(d) Regulations.--Not later than 3 months after the date of
enactment of this Act, the Secretary, in consultation with
the Secretary of the Treasury and the Director of the Bureau
of Consumer Financial Protection, shall issue by notice any
requirements to carry out this section. The Secretary shall
subsequently issue, after notice and comment, final
regulations to carry out this section.
(e) Bureau of Consumer Financial Protection Home Loan
Modification Protocol.--Not later than 90 days after the date
of enactment of this Act, the Director of the Bureau of
Consumer Financial Protection shall develop a home loan
modification protocol.
(f) Treasury and HUD Home Loan Modification Protocols.--Not
later than 90 days after the date of enactment of this Act,
the Secretary of the Treasury and the Secretary shall make
any changes to the home loan modification protocol of the
Secretary of the Treasury and the Secretary, respectively,
that are necessary to carry out this Act.
SEC. 4. MEDIATION INITIATIVES.
(a) Definitions.--In this section--
(1) the term ``mortgagee'' includes the agent of a
mortgagee; and
(2) the term ``mediation'' means a process in which a
neutral third party presides over discussions between
mortgagors and mortgagees to review and discuss available
loss mitigation options in order to avoid foreclosure.
(b) Grant Program Established.--The Secretary shall
establish a grant program to make competitive grants to State
and local governments to establish mediation programs that
assist mortgagors facing foreclosure.
(c) Mediation Programs.--A mediation program established
using a grant under this section shall--
(1) require participation in the program by--
(A) any mortgagee that seeks to initiate or has initiated a
judicial or nonjudicial foreclosure; and
(B) any mortgagor who is subject to a judicial or
nonjudicial foreclosure;
(2) require that a representative of the mortgagee who has
authority to decide on loss mitigation options (including
loan modification) participate, in person, in scheduled
sessions;
(3) require any mortgagee or mortgagor required to
participate in the program to make a good faith effort to
resolve promptly, through mediation, issues relating to the
default on the mortgage;
(4) if mediation is not made available to the mortgagor
before a foreclosure proceeding is initiated, allow the
mortgagor to request mediation at any time before a
foreclosure sale;
(5) provide that any proceeding to foreclose that is
initiated by the mortgagee shall be stayed until the mediator
has issued a written certification that the mortgagee
complied in good faith with its obligations under the
mediation program established under this section;
(6) provide for--
(A) supervision by a State court (or a State court in
conjunction with an agency or department of a State or local
government) of the mediation program;
(B) selection and training of neutral, third-party
mediators by a State court (or an agency or department of the
State or local government);
(C) penalties to be imposed by a State court, or an agency
or department of a State or local government, if a mortgagee
fails to comply with an order to participate in mediation;
and
(D) consideration by a State court (or an agency or
department of a State or local government) of recommendations
by a mediator relating to penalties for failure to fulfill
the requirements of the mediation program;
(7) require that each mortgagee that participates in the
mediation program make available to the mortgagor, before and
during participation in the mediation program, documentation
of--
(A) a loan modification calculation or net present value
calculation, including the information necessary to verify
and evaluate the calculation, made by the mortgagee in
relation to the mortgage using a home loan modification
protocol;
(B) the loan origination, including any note, deed of
trust, or other document necessary to establish the right of
the mortgagee to foreclose on the mortgage, including proof
of assignment of the mortgage to the mortgagee and the right
of the mortgagee to enforce the relevant note under the law
of the State in which the real property securing the mortgage
is located;
(C) any pooling and servicing agreement that the mortgagee
believes prohibits a loan modification;
(D) the payment history of the mortgagor and a detailed
accounting of any costs or fees associated with the account
of the mortgagor; and
(E) the specific alternatives to foreclosure considered by
the mortgagee, including loan modifications, workout
agreements, and short sales;
(8) prohibit a mortgagee from shifting the costs of
participation in the mediation program, including the
attorney's fees of the mortgagee, to a mortgagor;
(9) provide that--
(A) any holder of a junior lien against the property that
secures a mortgage that is the subject of a mediation--
(i) be notified of the mediation; and
(ii) be permitted to participate in the mediation; and
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(B) any proceeding initiated by a holder of a junior lien
against the property that secures a mortgage that is the
subject of a mediation be stayed pending the mediation;
(10) provide information to mortgagors about housing
counselors approved by the Secretary; and
(11) be free of charge to the mortgagor and mortgagee.
(d) Recordkeeping.--A State or local government that
receives a grant under this section shall keep a record of
the outcome of each mediation carried out under the mediation
program, including the nature of any loan modification made
as a result of participation in the mediation program.
(e) Targeting.--A State that receives a grant under this
section may establish--
(1) a statewide mediation program; or
(2) a mediation program in a specific locality that the
State determines has a high need for such program due to--
(A) the number of foreclosures in the locality; or
(B) other characteristics of the locality that contribute
to the number of foreclosures in the locality.
(f) Federal Share.--The Federal share of the cost of a
mediation program established using a grant under this
section may not exceed 50 percent.
(g) Authorization of Appropriations.--There are authorized
to be appropriated to carry out this section such sums as may
be necessary for each of fiscal years 2011 through 2014.
SEC. 5. OVERSIGHT OF PUBLIC AND PRIVATE EFFORTS TO REDUCE
MORTGAGE DEFAULTS AND FORECLOSURES.
(a) Definitions.--In this section--
(1) the term ``heads of appropriate agencies'' means the
Comptroller of the Currency, the Board of Governors of the
Federal Reserve System, the Federal Deposit Insurance
Corporation, the National Credit Union Administration, the
Director of the Bureau of Consumer Financial Protection, the
Director of the Office of Financial Research of the
Department of the Treasury, and a representative of State
banking regulators selected by the Secretary;
(2) the term ``mortgagee'' means--
(A) an original lender under a mortgage;
(B) any servicers, affiliates, agents, subsidiaries,
successors, or assignees of an original lender; and
(C) any subsequent purchaser, trustee, or transferee of any
mortgage or credit instrument issued by an original lender;
and
(3) the term ``servicer'' means any person who collects on
a home loan, whether such person is the owner, the holder,
the assignee, the nominee for the loan, or the beneficiary of
a trust, or any person acting on behalf of such person.
(b) Monitoring of Home Loans.--
(1) In general.--The Secretary, in consultation with the
heads of appropriate agencies, shall develop and implement a
plan to monitor--
(A) conditions and trends in homeownership and the mortgage
industry, in order to predict trends in foreclosures to
better understand other critical aspects of the mortgage
market; and
(B) the effectiveness of public and private efforts to
reduce mortgage defaults and foreclosures.
(2) Report to congress.--Not later than 1 year after the
development of the plan under paragraph (1), and each year
thereafter, the Secretary shall submit a report to Congress
that--
(A) summarizes and describes the findings of the monitoring
required under paragraph (1); and
(B) includes recommendations or proposals for legislative
or administrative action necessary--
(i) to increase the authority of the heads of appropriate
agencies to levy penalties against any mortgagee, or other
person or entity, who fails to comply with the requirements
described in this section;
(ii) to improve coordination between public and private
initiatives to reduce the overall rate of mortgage defaults
and foreclosures; and
(iii) to improve coordination between initiatives
undertaken by Federal, State, and local governments.
SEC. 6. HOUSING TRUST FUND.
From funds received or to be received by the Secretary of
the Treasury from the sale of warrants under title I of the
Emergency Economic Stabilization Act of 2008 (12 U.S.C. 5211
et seq.), the Secretary of the Treasury shall transfer and
credit $1,000,000,000 to the Housing Trust Fund established
under section 1338 of the Federal Housing Enterprises
Financial Safety and Soundness Act of 1992 (12 U.S.C. 4568)
for use in accordance with such section.
Mr. WHITEHOUSE. Mr. President, I rise today to speak in support of
legislation I have introduced with Senators Reed, Merkley, Sanders and
Tester to enhance foreclosure protections for our servicemembers and
their families, and to help ensure that their rights under the
Servicemembers Civil Relief Act are not violated.
We have all heard horror stories about how servicers treat homeowners
in distress. When these abusive mortgage practices harm the men and
women who are sent into harm's way to protect our country, it is a
particular tragedy and it deserves our urgent attention.
Not only are these practices illegal and morally repugnant, they can
also be a dangerous distraction from our military mission. Holly
Petraeus, General Petraeus' wife, leads the Consumer Financial
Protection Bureau's Office for Service Member Affairs, and she
testified on this issue during a recent hearing before the House
Veterans' Affairs Committee. As she put it, ``[i]t is a terrible
situation for the family at home and for the servicemember abroad who
feels helpless.''
Service members over at the point of the spear in Afghanistan have
enough to worry about without worrying about the bank foreclosing on
their family.
According to recent media reports, it has come to light that
financial institutions have repeatedly failed to comply with the
Servicemembers Civil Relief Act or ``SCRA''. These violations led to
thousands of mortgage overcharges and a number of unlawful
foreclosures. Under the SCRA, it is illegal to foreclose on a protected
servicemember unless an authorization by a judge is obtained. Then, the
judge can only act after a hearing is held in which the military
homeowner is represented.
One of the most troubling cases is the story of SGT James B. Hurley,
who lost his home while he was serving in Iraq. Like many Reservists,
Sergeant Hurley made less money serving on active duty than he did in
his civilian job. So, when he was mobilized, it became a real struggle
for his family to afford his mortgage and they fell behind in making
his payments.
The SCRA was designed to protect our servicemembers from financial
challenges associated with deployments, and it should have prevented
the bank from foreclosing on Sergeant Hurley. However, the bank
violated the SCRA, foreclosing on Sergeant Hurley illegally, and
forcing his wife and children out of their home. Sergeant Hurley
returned from combat, as a disabled veteran, only to find that the bank
had sold the home that he worked so hard to build.
The current economic climate has hit our returning veterans
particularly hard, adding to the financial challenges our deployed
servicemembers already face. According to a recent Department of Labor
report, the unemployment rate for veterans rose to 9.9 percent overall,
and 15.2 percent for veterans of the wars in Iraq and Afghanistan.
These heartbreaking statistics underscore how difficult it can be to
readjust economically to life at home. For our returning servicemembers
that need time to get back on financial solid footing, to rebuild what
they had to walk away from to defend the rest of us, we should do
everything we can to accommodate their needs, especially during these
difficult economic times.
The Protecting Servicemembers from Mortgage Abuses Act of 2011, which
I am introducing would encourage compliance with the SCRA by doubling
the maximum criminal penalties for violations of its foreclosure and
eviction protections. It would also double civil penalties in cases
where the Attorney General has commenced a civil action against the
lender.
In addition, the bill will give servicemembers the time they need
after returning from deployment to regain solid financial footing, by
extending the period of foreclosure protection coverage from 9 to 24
months after military service has ended.
I hope Senators on both sides of the aisle will come together and
join me in supporting legislation to discourage loan servicers from
further violations and help to protect the financial and emotional
well-being of our troops.
______
By Mr. AKAKA.
S. 490. A bill to amend title 38, United States Code, to increase the
maximum age for children eligible for medical care under the CHAMPVA
program, and for other purposes; to the Committee on Veterans' Affairs.
Mr. AKAKA. Mr. President, today, many dependent children of veterans
who permanently and totally disabled from a service connected
disability or who died in the line of duty are no longer being covered
by their health insurance program. I am introducing important
legislation that would make a critical adjustment to current
eligibility requirements for children who receive health care under the
Civilian Health and Medical Program of the Department of Veterans
Affairs program.
[[Page S1236]]
CHAMPVA was established in 1973 within the Veterans Administration to
provide health care services to dependents and survivors of our
Nation's veterans. CHAMPVA enrollment has grown steadily over the years
and, as of fiscal year 2009, covers more than 336,000 beneficiaries.
Under the current law, a dependent child loses eligibility for
CHAMPVA upon turning 18-years-old, unless the child is enrolled in
school on a full-time basis. After losing full-time status at school,
or upon turning 23-years-old, an eligible child of a veteran would lose
eligibility.
The landmark health care reform act that was enacted into law last
year includes a provision that requires private health insurance to
cover dependent children until age 26.
I believe it is only fair to afford children who are CHAMPVA
beneficiaries the same eligibility as dependent children whose parents
have private sector coverage. Beneficiaries are already being cut off
from coverage. We need to take prompt action to extend coverage to the
dependents of these veterans who have given so much to our country. I
urge my colleagues to support this necessary modification.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 490
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. INCREASE OF MAXIMUM AGE FOR CHILDREN ELIGIBLE FOR
MEDICAL CARE UNDER CHAMPVA PROGRAM.
(a) Increase.--Subsection (c) of section 1781 of title 38,
United States Code, is amended to read as follows:
``(c)(1) Notwithstanding clauses (i) and (iii) of section
101(4)(A) of this title and except as provided in paragraph
(2), for purposes of this section, a child who is eligible
for benefits under subsection (a) shall remain eligible for
benefits under this section until the child's 26th birthday,
regardless of the child's marital status.
``(2) Before January 1, 2014, paragraph (1) shall not apply
to a child who is eligible to enroll in an eligible employer-
sponsored plan (as defined in section 5000A(f)(2) of the
Internal Revenue Code of 1986).
``(3) This subsection shall not be construed to limit
eligibility for coverage of a child described in section
101(4)(A)(ii) of this title.''.
(b) Effective Date.--Such subsection, as so amended, shall
apply with respect to medical care provided on or after the
date of the enactment of this Act.
____________________