[Congressional Record Volume 157, Number 83 (Thursday, June 9, 2011)]
[Senate]
[Pages S3686-S3694]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. GRASSLEY (for himself and Mr. Johnson of South Dakota):
  S. 1161. A bill to amend the Food Security Act of 1985 to restore 
integrity to and strengthen payment limitation rules for commodity 
payments and benefits; to the Committee on Agriculture, Nutrition, and 
Forestry.
  Mr. GRASSLEY. Mr. President, I come to the floor to introduce a piece 
of legislation that I have introduced many times in past Congresses. I 
have made some progress on the goals I seek but have not gotten 100 
percent finality of the policies I want. I am always able to do this 
with a bipartisan piece of legislation.
  Today, I present this with Senator Johnson of South Dakota. I will 
let Senator Johnson speak for himself, but I want to give the reasons I 
am introducing this bill in my remarks. First, I want people to know 
this deals with farm policy, and on farm policy the Senator from South 
Dakota, Mr. Johnson, and I agree on most everything.
  Mr. President, this is a piece of legislation that is probably going 
to come up not so much as a stand-alone, as when we discuss the 
reauthorization of the farm bill--which generally could start this year 
and probably go into next year--but as an effort that I am not going to 
give up on. It deals with the issue of how much one individual farmer 
should get from the farm program. My approach is to put what one might 
call a hard cap on the amount of money that one farmer can get, and my 
remarks will explain why.
  Also, though, at a time when we have great budget deficits, people 
might think I am introducing this bill just because I am concerned 
about the budget deficit. It is true this bill, if enacted, will save 
about $1.5 billion, but that is not my main purpose for doing it. My 
main purpose is to have the historical basis for a safety net for 
farmers; to espouse the principle that our safety net ought to be 
targeted toward small- and medium-sized farmers. So today, Senator 
Johnson and I are introducing the Rural America Preservation Act.
  America's farmers produce the food that feed our families. The bill 
helps ensure that our farmers are able to provide a safe, abundant, and 
inexpensive food supply for consumers around the world while 
maintaining the safety net that allows small- and medium-sized farmers 
to get through tough times.
  Everybody sees tough times that are out of their control, but the 
importance of the farm safety net can be seen no further than the 
dinner table each of us sits around, as recently as last night. Stop to 
think what you would do if you were unable to feed your children for 3 
days. There is an old adage that says something like this: You are only 
nine meals away from a revolution. Maybe in those circumstances, if you 
love your children--and maybe you wouldn't think this could happen to 
you because we have such an abundance of food in America, but we are 
all aware of the fact a lot of countries do have food riots when there 
is a shortage of food--you might do just about anything--steal, riot, 
whatever it takes--to give your children the food you want them to have 
to keep them alive after not having food for 3 straight days.
  So the cohesion within our society, the social cohesion, that is one 
of the reasons it is vitally important we maintain a farm program that 
will make sure there is a readily available food supply.
  Another reason I am not going to go into in these remarks is that 
food is very essential to the national security of our country--in 
other words, the defense of our country. All we have to do is rely upon 
an old adage Napoleon used to use: An army marches on its belly. More 
recently, however, we can look at the farm programs in Germany and 
Japan where they recall the mistakes made in their war effort during 
World War II--and, thank God, they didn't succeed--when they did not 
have enough food for their military people. So I also want to think in 
terms of a sure supply of food not only for social cohesion but also 
for national security purposes.
  To ensure the family farmer remains able to produce a food supply for 
this cohesive and stable society that I have talked about, we need to 
get the farm safety net back to its original intent--to help small- and 
medium-sized farmers get over the ups and downs of farming that are out 
of their control. As an example, it could be a natural disaster, it 
could be grain embargoes such as those put on by the President of the 
United States, it could be the situation where President Nixon froze 
the price of beef and ruined the beef industry in the Midwest.
  The original intent of the Federal farm program was not to help a 
farmer get bigger and bigger. But the safety net has veered sharply off 
course, and that is why I talk about the necessity for a hard cap on 
any one farmer getting help from the farm program. We are now seeing 10 
percent of the largest farmers actually getting nearly 70 percent of 
the total farm program payments coming out of the Treasury of the 
United States.
  There is no problem with a farmer growing larger in his operation. 
Let me make that clear. If you want to get bigger and bigger in 
America, that is an American right to do so. But the taxpayers should 
not have to subsidize that effort, and that is what is happening today. 
There comes a point where some farms reach levels that allow them to 
weather the tough financial times on their own. Smaller farmers do not 
have that same luxury, and these same small farmers play a pivotal role 
in producing the Nation's food.
  I have been approached time and time again by farmers concerned about 
where the next generation of farmers will come from when the price of 
farmland is shooting up or the price of cash rent is shooting up, 
particularly when the Federal taxpayers are subsidizing that effort. It 
is important that we keep young people on the farm so they can take the 
lead in producing our food when the older generation of farmers is 
ready to turn over the reins. But the current policies that allow 10 
percent of the largest farmers to receive nearly 70 percent of the 
total farm program payments creates a real barrier for beginning and 
small farmers.
  The current system puts upward pressure on land prices, making it 
more difficult for small and beginning farmers to buy a farm or to 
afford the cash rent. This allows the big farmers to get even bigger, 
and this is not unique to my State of Iowa. I am sure it is not unique 
to the State of South Dakota, where my cosponsor friend, Senator 
Johnson, comes from. This upward pressure on land prices is occurring 
in many States. It is simply good policy to have a hard cap on the 
amount a single farmer can receive in the farm program payments. We 
will keep in place a much needed safety net for the farmers who need it 
the most, and it will help reduce the negative impact farm payments can 
have on land prices and cash rent.
  Our bill sets the overall cap at $250,000 for married couples. Now, 
people listening in the Senate, or people listening back home on 
television, probably think it is outrageous to have a figure that high 
and call it a hard cap. But this is something that is national policy 
and may not be applicable just to my State, so it is necessary to reach 
some sort of common ground in the Congress. I recognize that 
agriculture can look different around the country, so this is a 
compromise.
  Just as important as setting the payment limits is the tightening of 
the meaning of ``actively engaged.'' I will not go in depth as to what 
actively engaged is about at this point, but it generally means, if you 
are a farmer, you ought to be a farmer and not a city slicker from New 
York City benefiting from the farm program. This will help make sure 
that farm payments only go to those who deserve them.
  In light of the current budget discussions, everyone should agree 
that we don't want money going to those who fail to meet the criteria 
set for the program. This bill will help do that.
  I hope my colleagues will agree this bill takes a common sense 
approach to improve our farm safety net, and a help to make sure the 
dollars spent go to those who need it most.
  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:

[[Page S3687]]

                                S. 1161

       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 ``Rural America Preservation 
     Act of 2011''.

     SEC. 2. PAYMENT LIMITATIONS.

       Section 1001 of the Food Security of 1985 (7 U.S.C. 1308) 
     is amended--
       (1) in subsection (a), by striking paragraph (3) and 
     inserting the following:
       ``(3) Legal entity.--
       ``(A) In general.--The term `legal entity' means--
       ``(i) an organization that (subject to the requirements of 
     this section and section 1001A) is eligible to receive a 
     payment under a provision of law referred to in subsection 
     (b), (c), or (d);
       ``(ii) a corporation, joint stock company, association, 
     limited partnership, limited liability company, limited 
     liability partnership, charitable organization, estate, 
     irrevocable trust, grantor of a revocable trust, or other 
     similar entity (as determined by the Secretary); and
       ``(iii) an organization that is participating in a farming 
     operation as a partner in a general partnership or as a 
     participant in a joint venture.
       ``(B) Exclusion.--The term `legal entity' does not include 
     a general partnership or joint venture.'';
       (2) in subsection (b)--
       (A) in paragraphs (1), (2), and (3), by striking ``(except 
     a joint venture or a general partnership)'' each place it 
     appears;
       (B) in paragraph (1)(A), by striking ``$40,000'' and 
     inserting ``$20,000''; and
       (C) in paragraphs (2) and (3)(A), by striking ``$65,000'' 
     each place it appears and inserting ``$30,000'';
       (3) in subsection (c)--
       (A) in paragraphs (1), (2), and (3), by striking ``(except 
     a joint venture or a general partnership)'' each place it 
     appears;
       (B) in paragraph (1)(A), by striking ``$40,000'' and 
     inserting ``$20,000''; and
       (C) in paragraphs (2) and (3)(A), by striking ``$65,000'' 
     each place it appears and inserting ``$30,000'';
       (4) by striking subsection (d) and inserting the following:
       ``(d) Limitations on Marketing Loan Gains, Loan Deficiency 
     Payments, and Commodity Certificate Transactions.--The total 
     amount of the following gains and payments that a person or 
     legal entity may receive during any crop year may not exceed 
     $75,000:
       ``(1)(A) Any gain realized by a producer from repaying a 
     marketing assistance loan for 1 or more loan commodities and 
     peanuts under subtitle B or C of title I of the Food, 
     Conservation, and Energy Act of 2008 (7 U.S.C. 8731 et seq.) 
     at a lower level than the original loan rate established for 
     the loan commodity under those subtitles.
       ``(B) In the case of settlement of a marketing assistance 
     loan for 1 or more loan commodities and peanuts under those 
     subtitles by forfeiture, the amount by which the loan amount 
     exceeds the repayment amount for the loan if the loan had 
     been settled by repayment instead of forfeiture.
       ``(2) Any loan deficiency payments received for 1 or more 
     loan commodities and peanuts under those subtitles.
       ``(3) Any gain realized from the use of a commodity 
     certificate issued by the Commodity Credit Corporation for 1 
     or more loan commodities and peanuts, as determined by the 
     Secretary, including the use of a certificate for the 
     settlement of a marketing assistance loan made under those 
     subtitles or section 1307 of that Act (7 U.S.C. 7957).'';
       (5) by redesignating subsections (e) through (h) as 
     subsections (f) through (i), respectively;
       (6) by inserting after subsection (d) the following:
       ``(e) Spousal Equity.--
       ``(1) In general.--Notwithstanding subsections (b) through 
     (d), except as provided in paragraph (2), if a person and the 
     spouse of the person are covered by paragraph (2) and 
     receive, directly or indirectly, any payment or gain covered 
     by this section, the total amount of payments or gains (as 
     applicable) covered by this section that the person and 
     spouse may jointly receive during any crop year may not 
     exceed an amount equal to twice the applicable dollar amounts 
     specified in subsections (b), (c), and (d).
       ``(2) Exceptions.--
       ``(A) Separate farming operations.--In the case of a 
     married couple in which each spouse, before the marriage, was 
     separately engaged in an unrelated farming operation, each 
     spouse shall be treated as a separate person with respect to 
     a farming operation brought into the marriage by a spouse, 
     subject to the condition that the farming operation shall 
     remain a separate farming operation, as determined by the 
     Secretary.
       ``(B) Election to receive separate payments.--A married 
     couple may elect to receive payments separately in the name 
     of each spouse if the total amount of payments and benefits 
     described in subsections (b), (c), and (d) that the married 
     couple receives, directly or indirectly, does not exceed an 
     amount equal to twice the applicable dollar amounts specified 
     in those subsections.'';
       (7) in paragraph (3)(B) of subsection (g) (as redesignated 
     by paragraph (5)), by adding at the end the following:
       ``(iii) Irrevocable trusts.--In promulgating regulations to 
     define the term `legal entity' as the term applies to 
     irrevocable trusts, the Secretary shall ensure that 
     irrevocable trusts are legitimate entities that have not been 
     created for the purpose of avoiding a payment limitation.''; 
     and
       (8) in subsection (i) (as redesignated by paragraph (5)), 
     in the second sentence, by striking ``or other entity'' and 
     inserting ``or legal entity''.

     SEC. 3. SUBSTANTIVE CHANGE; PAYMENTS LIMITED TO ACTIVE 
                   FARMERS.

       The Food Security Act of 1985 is amended by striking 
     section 1001A (7 U.S.C. 1308-1) and inserting the following:

     ``SEC. 1001A. SUBSTANTIVE CHANGE; PAYMENTS LIMITED TO ACTIVE 
                   FARMERS.

       ``(a) Substantive Change.--
       ``(1) In general.--For purposes of the application of 
     limitations under this section, the Secretary shall not 
     approve any change in a farming operation that otherwise 
     would increase the number of persons or legal entities to 
     which the limitations under this section apply, unless the 
     Secretary determines that the change is bona fide and 
     substantive.
       ``(2) Family members.--For the purpose of paragraph (1), 
     the addition of a family member to a farming operation under 
     the criteria established under subsection (b)(3)(B) shall be 
     considered to be a bona fide and substantive change in the 
     farming operation.
       ``(3) Primary control.--To prevent a farm from reorganizing 
     in a manner that is inconsistent with the purposes of this 
     Act, the Secretary shall promulgate such regulations as the 
     Secretary determines to be necessary to simultaneously 
     attribute payments for a farming operation to more than 1 
     person or legal entity, including the person or legal entity 
     that exercises primary control over the farming operation, 
     including to respond to--
       ``(A)(i) any instance in which ownership of a farming 
     operation is transferred to a person or legal entity under an 
     arrangement that provides for the sale or exchange of any 
     asset or ownership interest in 1 or more legal entities at 
     less than fair market value; and
       ``(ii) the transferor is provided preferential rights to 
     repurchase the asset or interest at less than fair market 
     value; or
       ``(B) a sale or exchange of any asset or ownership interest 
     in 1 or more legal entities under an arrangement under which 
     rights to exercise control over the asset or interest are 
     retained, directly or indirectly, by the transferor.
       ``(b) Payments Limited to Active Farmers.--
       ``(1) In general.--To be eligible to receive, directly or 
     indirectly, payments or benefits described as being subject 
     to limitation in subsection (b) through (d) of section 1001 
     with respect to a particular farming operation, a person or 
     legal entity shall be actively engaged in farming with 
     respect to the farming operation, in accordance with 
     paragraphs (2), (3), and (4).
       ``(2) General classes actively engaged in farming.--
       ``(A) Definition of active personal management.--In this 
     paragraph, the term `active personal management' means, with 
     respect to a person, administrative duties carried out by the 
     person for a farming operation--
       ``(i) that are personally provided by the person on a 
     regular, continuous, and substantial basis; and
       ``(ii) relating to the supervision and direction of--

       ``(I) activities and labor involved in the farming 
     operation; and
       ``(II) onsite services directly related and necessary to 
     the farming operation.

       ``(B) Active engagement.--Except as provided in paragraph 
     (3), for purposes of paragraph (1), the following shall 
     apply:
       ``(i) A person shall be considered to be actively engaged 
     in farming with respect to a farming operation if--

       ``(I) the person makes a significant contribution, as 
     determined under subparagraph (E) (based on the total value 
     of the farming operation), to the farming operation of--

       ``(aa) capital, equipment, or land; and
       ``(bb) personal labor and active personal management;

       ``(II) the share of the person of the profits or losses 
     from the farming operation is commensurate with the 
     contributions of the person to the operation; and
       ``(III) a contribution of the person is at risk.

       ``(ii) A legal entity shall be considered to be actively 
     engaged in farming with respect to a farming operation if--

       ``(I) the legal entity makes a significant contribution, as 
     determined under subparagraph (E) (based on the total value 
     of the farming operation), to the farming operation of 
     capital, equipment, or land;
       ``(II)(aa) the stockholders or members that collectively 
     own at least 51 percent of the combined beneficial interest 
     in the legal entity each make a significant contribution of 
     personal labor and active personal management to the 
     operation; or
       ``(bb) in the case of a legal entity in which all of the 
     beneficial interests are held by family members, any 
     stockholder or member (or household comprised of a 
     stockholder or member and the spouse of the stockholder or 
     member) who owns at least 10 percent of the beneficial 
     interest in the legal entity makes a significant contribution 
     of personal labor or active personal management; and
       ``(III) the legal entity meets the requirements of 
     subclauses (II) and (III) of clause (i).

       ``(C) Legal entities making significant contributions.--If 
     a general partnership,

[[Page S3688]]

     joint venture, or similar entity (as determined by the 
     Secretary) separately makes a significant contribution (based 
     on the total value of the farming operation involved) of 
     capital, equipment, or land, the partners or members making a 
     significant contribution of personal labor or active personal 
     management and meeting the standards provided in subclauses 
     (II) and (III) of subparagraph (B)(i) shall be considered to 
     be actively engaged in farming with respect to the farming 
     operation involved.
       ``(D) Equipment and personal labor.--In making 
     determinations under this subsection regarding equipment and 
     personal labor, the Secretary shall take into consideration 
     the equipment and personal labor normally and customarily 
     provided by farm operators in the area involved to produce 
     program crops.
       ``(E) Significant contribution of personal labor or active 
     personal management.--
       ``(i) In general.--Subject to clause (ii), for purposes of 
     subparagraph (B), a person shall be considered to be 
     providing, on behalf of the person or a legal entity, a 
     significant contribution of personal labor and active 
     personal management, if the total contribution of personal 
     labor and active personal management is at least equal to the 
     lesser of--

       ``(I) 1,000 hours; and
       ``(II) a period of time equal to--

       ``(aa) 50 percent of the commensurate share of the total 
     number of hours of personal labor and active personal 
     management required to conduct the farming operation; or
       ``(bb) in the case of a stockholder or member (or household 
     comprised of a stockholder or member and the spouse of the 
     stockholder or member) that owns at least 10 percent of the 
     beneficial interest in a legal entity in which all of the 
     beneficial interests are held by family members who do not 
     collectively receive payments directly or indirectly, 
     including payments received by spouses, of more than twice 
     the applicable limit, 50 percent of the commensurate share of 
     hours of the personal labor and active personal management of 
     all family members required to conduct the farming operation.
       ``(ii) Minimum labor hours.--For the purpose of clause (i), 
     the minimum number of labor hours required to produce a 
     commodity shall be equal to the number of hours that would be 
     necessary to conduct a farming operation for the production 
     of each commodity that is comparable in size to the 
     commensurate share of a person or legal entity in the farming 
     operation for the production of the commodity, based on the 
     minimum number of hours per acre required to produce the 
     commodity in the State in which the farming operation is 
     located, as determined by the Secretary.
       ``(3) Special classes actively engaged in farming.--
     Notwithstanding paragraph (2), the following persons shall be 
     considered to be actively engaged in farming with respect to 
     a farm operation:
       ``(A) Landowners.--A person or legal entity that is a 
     landowner contributing owned land, and that meets the 
     requirements of subclauses (II) and (III) of paragraph 
     (2)(B)(i), if, as determined by the Secretary--
       ``(i) the landowner share-rents the land at a rate that is 
     usual and customary; and
       ``(ii) the share received by the landowner is commensurate 
     with the share of the crop or income received as rent.
       ``(B) Family members.--With respect to a farming operation 
     conducted by persons who are family members, or a legal 
     entity the majority of the stockholders or members of which 
     are family members, an adult family member who makes a 
     significant contribution (based on the total value of the 
     farming operation) of active personal management or personal 
     labor and, with respect to such contribution, who meets the 
     requirements of subclauses (II) and (III) of paragraph 
     (2)(B)(i).
       ``(C) Sharecroppers.--A sharecropper who makes a 
     significant contribution of personal labor to the farming 
     operation and, with respect to such contribution, who meets 
     the requirements of subclauses (II) and (III) of paragraph 
     (2)(B)(i), and who was receiving payments from the landowner 
     as a sharecropper prior to the effective date of the Food, 
     Conservation, and Energy Act of 2008 (Public Law 110-246; 122 
     Stat. 1651).
       ``(4) Persons and legal entities not actively engaged in 
     farming.--For the purposes of paragraph (1), except as 
     provided in paragraph (3), the following persons and legal 
     entities shall not be considered to be actively engaged in 
     farming with respect to a farm operation:
       ``(A) Landlords.--A landlord contributing land to the 
     farming operation if the landlord receives cash rent, or a 
     crop share guaranteed as to the amount of the commodity to be 
     paid in rent, for such use of the land.
       ``(B) Other persons and legal entities.--Any other person 
     or legal entity, or class of persons or legal entities, that 
     fails to meet the requirements of paragraphs (2) and (3), as 
     determined by the Secretary.
       ``(5) Personal labor and active personal management.--No 
     stockholder or member may provide personal labor or active 
     personal management to meet the requirements of this 
     subsection for persons or legal entities that collectively 
     receive, directly or indirectly, an amount equal to more than 
     twice the applicable limits under subsections (b), (c), and 
     (d) of section 1001.
       ``(6) Custom farming services.--A person or legal entity 
     receiving custom farming services will be considered 
     separately eligible for payment limitation purposes if the 
     person or legal entity is actively engaged in farming based 
     on paragraphs (1) through (3).
       ``(7) Growers of hybrid seed.--To determine whether a 
     person or legal entity growing hybrid seed under contract 
     shall be considered to be actively engaged in farming, the 
     Secretary shall not take into consideration the existence of 
     a hybrid seed contract.
       ``(c) Notification by Legal Entities.--To facilitate the 
     administration of this section, each legal entity that 
     receives payments or benefits described as being subject to 
     limitation in subsection (b), (c), or (d) of section 1001 
     with respect to a particular farming operation shall--
       ``(1) notify each person or other legal entity that 
     acquires or holds a beneficial interest in the farming 
     operation of the requirements and limitations under this 
     section; and
       ``(2) provide to the Secretary, at such times and in such 
     manner as the Secretary may require, the name and social 
     security number of each person, or the name and taxpayer 
     identification number of each legal entity, that holds or 
     acquires such a beneficial interest.''.

     SEC. 4. FOREIGN PERSONS AND LEGAL ENTITIES MADE INELIGIBLE 
                   FOR PROGRAM BENEFITS.

       Section 1001C of the Food Security Act of 1985 (7 U.S.C. 
     1308-3) is amended--
       (1) in the section heading, by striking ``PERSONS'' and 
     inserting ``PERSONS AND LEGAL ENTITIES'';
       (2) in subsection (b)--
       (A) in the subsection heading, by striking ``Corporation or 
     Other'' and inserting ``Legal'';
       (B) in the first sentence, by striking ``a corporation or 
     other entity shall be considered a person that'' and 
     inserting ``a legal entity''; and
       (C) in the second sentence, by striking ``an entity'' and 
     inserting ``a legal entity''; and
       (3) in subsection (c), by striking ``person'' and inserting 
     ``legal entity or person''.

     SEC. 5. REGULATIONS.

       (a) In General.--The Secretary of Agriculture may 
     promulgate such regulations as are necessary to implement 
     this Act and the amendments made by this Act.
       (b) Procedure.--The promulgation of the regulations and 
     administration of this Act and the amendments made by this 
     Act shall be made without regard to--
       (1) the notice and comment provisions of section 553 of 
     title 5, United States Code;
       (2) the Statement of Policy of the Secretary of Agriculture 
     effective July 24, 1971 (36 Fed. Reg. 13804), relating to 
     notices of proposed rulemaking and public participation in 
     rulemaking; and
       (3) chapter 35 of title 44, United States Code (commonly 
     known as the ``Paperwork Reduction Act'').
       (c) Congressional Review of Agency Rulemaking.--In carrying 
     out this section, the Secretary shall use the authority 
     provided under section 808 of title 5, United States Code.

     SEC. 6. BUDGETARY EFFECTS.

       The budgetary effects of this Act, for the purpose of 
     complying with the Statutory Pay-As-You-Go-Act of 2010, shall 
     be determined by reference to the latest statement titled 
     ``Budgetary Effects of PAYGO Legislation'' for this Act, 
     submitted for printing in the Congressional Record by the 
     Chairman of the Senate Budget Committee, provided that such 
     statement has been submitted prior to the vote on passage.
                                 ______
                                 
      By Mr. ROCKEFELLER (for himself and Mr. Pryor):
  S. 1165. A bill to protect children and other consumers against 
hazards associated with the accidental ingestion of button cell 
batteries by requiring the Consumer Product Safety Commission to 
promulgate consumer product safety standards to require child-resistant 
closures on remote controls and other consumer products that use such 
batteries, and for other purposes; to the Committee on Commerce, 
Science, and Transportation.
  Mr. ROCKEFFELLER. Mr. President, I rise to introduce the Button Cell 
Battery Safety Act of 2011. This bill will protect the most vulnerable 
members of our society from the hazards of button cell battery 
ingestion. These small batteries, which are present in more and more 
consumer products each year, can be deadly if swallowed. While most 
swallowed batteries pass harmlessly through the body, a toddler who 
puts one in her mouth can be severely injured in just two hours and the 
damage can be fatal after only eight hours.
  Button cell batteries are small, round, and are approximately the 
size and shape of common coins. Just the sort of thing a curious child 
might put in his mouth. When ingested, these batteries can become 
lodged in the throat or elsewhere in the digestive system and cause 
permanent damage to the tissues.
  Between 2007 and 2009, more than 3,400 button battery ingestion cases 
were reported to U.S. poison centers annually. The number of ingestions 
that result in serious injury or death

[[Page S3689]]

have increased sevenfold since 1985 due to the higher voltage of newer 
batteries. Hundreds of children have been severely injured and six have 
died from these ingestions in the last two years alone.
  Despite the severe risk, most parents and caregivers remain unaware 
of the danger.
  Imagine not realizing a child has swallowed one of these batteries. 
It gets lodged in the esophagus, begins to cause severe burns, and 
stays there for days with parents and doctors not realizing something 
is terribly wrong. It may seem like a respiratory infection, or a 
stomach virus. But it is not. It is the chemical reaction of a button 
cell battery, lodged in the esophagus. Even if the battery is removed 
within several hours, the damage is done. The child can end up in the 
intensive care unit for weeks, following hours of surgery. There can be 
permanent damage to the vocal cords, or to the gastrointestinal tract, 
meaning the child would require feeding tubes, home nursing care, and 
multiple surgeries. As severe and painstaking as this is for the child 
and for the parents, the child is fortunately given a second chance at 
life.
  For a small number of the 3,400 cases of button cell battery 
ingestion reported to poison control centers every year, the damage 
from the battery proves to be fatal. Aidan Truett of Hamilton, Ohio, 
had a battery surgically removed after nine days of severe symptoms and 
doctor visits. The doctors found the battery when they ordered an X-
ray, looking for pneumonia. Two days after his surgery, Aidan died from 
his injuries. He was 13 months old.
  Two year old Elaina Redding, from Fort Lupton, CO died after the 
current from a swallowed battery set off a chemical reaction that 
eroded her esophagus and aorta. Four days after clutching her chest in 
pain, she was taken to the hospital and the battery was removed. Two 
weeks after being sent home, Elaina suffered a bloody coughing fit that 
sent her back to the intensive care unit where she bled to death.
  These stories are horrifying and compel us to act. Small batteries 
which are in multiple products in our houses--in remote controls, toys, 
and musical greeting cards--are highly dangerous in the hands of 
toddlers who may swallow them. We have the ability to protect children 
and we must do so.
  We need to make sure that these batteries are securely enclosed in 
products and cannot be removed by curious children. And we must also 
make sure that parents and caretakers are aware of the danger. No 
parent should leave batteries lying around the house after removing 
them from a product, or hand them to a small child.
  This legislation would require the Consumer Product Safety Commission 
to promulgate a safety standard requiring child-resistant closures on 
consumer products that use these types of batteries. We already have 
Federal safety rules that require toys that use batteries to have such 
compartments; now it is time to make sure all products that utilize 
these particular batteries are secured in a manner that will reduce 
children's access to these potentially harmful batteries.
  In addition, the legislation will require warning labels that alert 
adults of the danger of these batteries. Such labels will be required 
on the packaging for replacement batteries, in the user manual of 
products that use these batteries, and where appropriate, on the 
product itself. Too many injuries occur because batteries are left out 
and accessible after they have been replaced.
  Today, I ask my colleagues to support this simple and straightforward 
bill that will save lives and prevent unnecessary injuries.
                                 ______
                                 
      By Mrs. MURRAY (for herself, Mr. Akaka, Mr. Blumenthal, Mr. Brown 
        of Ohio, Mr. Franken, Mr. Harkin, Mr. Lautenberg, Mr. 
        Rockefeller, Mrs. Shaheen, and Mr. Whitehouse):
  S. 1166. A bill to amend the Occupational Safety and Health Act of 
1970 to expand coverage under the Act, to increase protections for 
whistleblowers, to increase penalties for high gravity violations, to 
adjust penalties for inflation, to provide rights for victims of family 
members, and for other purposes; to the Committee on Health, Education, 
Labor, and Pensions.
  Mrs. MURRAY. Mr. President, I come to the floor today to talk about 
our obligation to protect workers across America and to urge my 
colleagues to support the Protecting America's Workers Act, which I am 
very proud to introduce today.
  Mr. President, middle-class families across this country are 
struggling. So many of them have lost their homes or their jobs and are 
fighting to keep their heads above water. We are working hard here to 
create jobs and get the economy back on track, but we also owe it to 
middle-class families to make sure those jobs are safe and healthy.
  In 2009 alone there were 4,340 deaths in workplaces across America, 
and over 3 million more were injured or sickened while on the job. If 
more than 4,000 Americans were killed in 1 day, it would be on the 
front page of every newspaper in this country. If an epidemic in this 
country claimed 4,000 lives, it would lead the nightly news each week. 
But that is not the way it works with workplace injuries. They happen a 
few at a time, spread out across the country, in communities such as 
Anacortes in my home State of Washington, where a fire broke out last 
year at the Tesoro Refinery and killed seven workers.
  These were men and women who were taken too young, with so much life 
to live and with so many people to live it with; workers who took on 
tough jobs and worked long hours during difficult economic times to 
provide for their families. They were people who made tremendous 
sacrifices and who embodied so much of what is good about their 
communities and their States. They have been dearly missed.
  Washington State investigators looked into that incident and 
determined that the tragedy could have been and should have been 
prevented. The problems that led to what happened were known 
beforehand. They should have been fixed, but they weren't. That is 
heartbreaking.
  Every worker in every industry deserves to be confident that while 
they are working hard and doing their jobs, their employers are doing 
everything they can to protect them. That is why I am proud to 
reintroduce the Protecting America's Workers Act. This legislation is a 
long overdue update to the Occupational Safety and Health Act of 1970, 
or the OSH Act.
  Since that groundbreaking law was passed over 40 years ago, we know 
American industry has changed significantly. Businesses and workplaces 
have become much more complex, and workers are performing 21st-century 
tasks, but the government is still using a 1970 approach to regulations 
to protect employees. It doesn't make sense, and it needs to change.
  We need to update the way we as a country think about our worker 
safety regulations, and this law is a very important step in that 
direction. This is not about adding more regulations, it is about 
having smarter regulations. It is about having regulations that protect 
workers and make sense for business.
  Mr. President, the Protecting America's Workers Act makes a number of 
key improvements to the OSH Act, but I want to highlight just a few.
  First of all, it increases protections for workers who blow the 
whistle on unsafe working conditions. Protecting workers who tell the 
truth is just common sense. In fact, in other modern laws, such as the 
Consumer Product Safety Improvement Act of 2008 and the Food Safety 
Modernization Act of 2010, they do exactly that. But since the OSH Act 
has not been updated, the vast majority of workers today don't have 
similar protections.
  An important part of my bill would make sure a whistleblower's right 
to protection from retaliation cannot be waived through collective 
bargaining agreements, and they have the option to appeal to the 
Federal courts if they believe they are being mistreated for telling 
the truth about dangerous practices.
  The Protecting America's Workers Act also improves reporting, 
inspection, and other enforcement of workplace health and safety 
violations. It expands the rights of the victims and makes sure 
employers who oversee unsafe workplaces are pushed to quickly improve 
them to avoid further endangering worker health and safety.

[[Page S3690]]

  This is a good bill. I am proud to have a number of cosponsors in the 
Senate, as well as the support of many prominent national groups in our 
efforts to improve workplace safety.
  Nothing can bring back the workers we lost in communities such as 
Anacortes, but we certainly owe it to them to make sure workers 
everywhere are truly protected on the job. So I urge my colleagues to 
support the Protecting America's Workers Act and to keep working with 
us to make workplaces safer and healthier across America.
                                 ______
                                 
      By Mr. JOHNSON of South Dakota (for himself and Mr. Bingaman):
  S. 1167. A bill to amend the Public Health Service Act to improve the 
diagnosis and treatment of hereditary hemorrhagic telangiectasia, and 
for other purposes; to the Committee on Health, Education, Labor, and 
Pensions.
  Mr. JOHNSON of South Dakota. Mr. President, today I join with my 
colleague and friend from Iowa, Chuck Grassley, in introducing the 
Rural America Preservation Act of 2011, which will provide for common-
sense, meaningful farm program payment limitations. Particularly given 
our country's budgetary constraints, this is a straight-forward and 
fiscally responsible proposal that would target our farm program 
payments and safety net.
  The current farm program payment structure has, quite frankly, failed 
rural America. According to the United States Department of 
Agriculture's Economic Research Service, in 2008, the largest 12.4 
percent of farms received 62.4 percent of farm program payments. The 
current rules permit the most capitalized farming corporations to 
receive massive subsidies and deprive small and medium-sized family 
farmers of the opportunity to thrive. The farm bill is intended to 
provide programs that function as a safety net for farmers, in contrast 
to the cash cow they've become for a few producers. It is important 
that we maintain a safety net for producers, but such a system must be 
targeted to family farmers instead of large agribusinesses.
  The 2008 farm bill took some important first steps in strengthening 
the integrity of our farm programs. Under the law, anyone making more 
than $500,000 in non-farm Adjusted Gross Income will not receive farm 
payments and producers making over $750,000 AGI will lose their direct 
payments. Additionally, the law eliminates the triple-entity loophole 
and farm payments now go directly to an individual, rather than a 
corporation or general partnership, through direct attribution. I 
support direct attribution and elimination of the triple-entity 
loophole; however, I believe these provisions should have been much 
stronger and I have consistently pressed for a hard payment cap of at 
least $250,000. The bill we introduced today would finally provide for 
meaningful payment limitations and ensure that assistance goes to small 
and medium-sized family farms.
  Our legislation includes several specific limits. Direct payments 
would be capped at $20,000 per producer and counter-cyclical payments 
would be limited to $30,000. Additionally, the bill would establish a 
cap of $75,000 on loan deficiency payments, LDPs, and marketing loan 
gains. There is currently no cap on LDPs and marketing loan gains, 
essentially meaning there is no effective payment limitation.
  Just as important as establishing a hard payment limitations cap is 
how we define whether an individual is actively engaged in the 
operation of a farm. Current law lacks a defined active management 
test, and therefore someone could participate in no more than a yearly 
conference call and be eligible to receive payments. Our bill closes 
the management loophole which has allowed ``paper partners'' to collect 
payments without contributing any real or meaningful role in the 
operation. This proposal will improve the management standards 
determining payment eligibility by requiring that management be 
provided on a regular, substantial, and continuous basis through direct 
supervision and direction of the operations of the farm. These are 
reasonable and common-sense requirements which seek to further ensure 
the integrity of the farm safety net.
  Agriculture is the economic engine that drives our rural communities, 
and without viable family farmers, our small towns and Main Street 
businesses throughout South Dakota would face significant financial 
hardships. I am proud to join with my friend from Iowa, Senator 
Grassley, who has also been a longtime champion of family farmers, in 
introducing this important legislation.
                                 ______
                                 
      By Mr. WYDEN (for himself and Mr. Crapo):
  S. 1173. A bill to amend title XVIII of the Social Security Act to 
modernize payments for ambulatory surgical centers under the Medicare 
program; to the Committee on Finance.
  Mr. WYDEN. Mr. President, I rise today, once again, to advocate for 
patients and their access to more choice and competition in providing 
good quality health care by introducing The Ambulatory Surgical Center 
Quality and Access Act of 2011 with my colleague, Senator Crapo.
  Advocates for health care reform and a healthier nation continue to 
emphasize the importance of keeping patients ``out of the hospital.'' 
ASCs can help do that by providing cost-effective services in an 
outpatient setting.
  There are more than 5,200 Medicare-certified ASCs across all 50 
States, with 83 in Oregon alone. These facilities, that employ the 
equivalent of 117,700 full-time workers nationwide, ensure that 
patients from Portland to Hermiston, from Klamath Falls to Coos Bay, 
have access to safe, effective, and quality surgical care.
  But ASCs can do more than provide the same services found in a 
Hospital Outpatient Department; they can do it at lower cost. Medicare 
saves an estimated $3 billion each year when surgical procedures are 
performed in ASCs rather than hospitals due to ASC reimbursement 
equaling 56 percent of what a hospital receives.
  Currently, Medicare uses two different factors to update 
reimbursement: one for ASCs and a different one for hospitals. ASC 
payments are updated based on the consumer price index, while hospital 
rates are updated using the hospital market basket, which specifically 
measures changes in the costs of providing health care. Both facilities 
can provide identical surgical procedures, so why aren't their 
respective reimbursements linked to the same update mechanism? Why 
should there be a double standard?
  This inequity could have significant consequences for both patients' 
access to services and Medicare's rate of outpatient expenditures if 
facilities begin consolidating or hospitals begin acquiring these 
practices in an attempt to reimburse for the same services at a higher 
rate--and cost to the taxpayer.
  The legislation Senator Crapo and I have introduced today, however, 
begins to address this in two ways: First, this bill creates parity by 
allowing ASC payment rates to be updated using the same market basket 
update hospitals use; and second, the bill goes a step further by 
establishing a Value-Based Purchasing program which will dispense 
shared savings payments based on quality reporting and improved 
performance.
  The Ambulatory Surgical Center Quality and Access Act puts 
commonsense policies in place that will enhance patients' access to 
quality care in a cost-effective way. I urge my colleagues to join us 
in cosponsoring this important legislation.
  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. 1173

       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 ``Ambulatory Surgical Center 
     Quality and Access Act of 2011''.

     SEC. 2. ALIGNING UPDATES FOR AMBULATORY SURGICAL CENTER 
                   SERVICES WITH UPDATES FOR OPD SERVICES.

       Section 1833(i)(2)(D) of the Social Security Act (42 U.S.C. 
     13951(i)) is amended--
       (1) by redesignating clause (vi) as clause (vii);
       (2) in the first sentence of clause (v), by inserting 
     before the period the following: ``and, in the case of 2012 
     or a subsequent year, by the adjustment described in 
     subsection (t)(3)(G) for the respective year''; and
       (3) by inserting after clause (v) the following new clause:

[[Page S3691]]

       ``(vi) In implementing the system described in clause (i) 
     for 2012 and each subsequent year, there shall be an annual 
     update under such system for the year equal to the OPD fee 
     schedule increase factor specified under subsection 
     (t)(3)(C)(iv) for such year, adjusted in accordance with 
     clauses (iv) and (v).''.

     SEC. 3. IMPROVING ASC QUALITY MEASURE REPORTING AND APPLYING 
                   VALUE-BASED PURCHASING TO ASCS.

       (a) Quality Measures.--Paragraph (7) of section 1833(i) of 
     the Social Security Act (42 U.S.C. 1395l(i)) is amended--
       (1) in subparagraph (A)--
       (A) in the first sentence, by inserting ``(beginning with 
     2014)'' after ``with respect to a year''; and
       (B) by adding at the end the following: ``Data required to 
     be submitted on measures selected under this paragraph must 
     be on measures that have been selected by the Secretary after 
     consideration of public comments and in accordance with the 
     process described in subparagraph (B). Such measures may 
     include healthcare acquired infection measures appropriate 
     for ambulatory surgery centers, prophylactic IV antibiotic 
     timing, and patient falls. Ambulatory surgical centers 
     determined by the Secretary to furnish a minimal number of 
     items and services under this title with respect to a year 
     shall not be subject to a reduction under this subparagraph 
     for such year.'';
       (2) in subparagraph (B)--
       (A) by striking ``Except as the Secretary may otherwise 
     provide, the'' and inserting ``Except as provided in the 
     subsequent sentence, the''; and
       (B) by adding at the end the following: ``In carrying out 
     the previous sentence, the Secretary shall--
       ``(i) ensure that measures meet the definition and process 
     for identifying quality measures under subsections (a) and 
     (b) of section 931 of the Public Health Service Act;
       ``(ii) ensure that measures are developed, selected, and 
     modified in accordance with the development, selection, and 
     modification processes for measures established under section 
     1890A and in accordance with section 1890;
       ``(iii) ensure that measures are selected, and a data 
     submission process is implemented, under this paragraph in a 
     manner that ensures ambulatory surgical centers are able to 
     voluntarily submit data under this paragraph not later than 
     January 1, 2013;
       ``(iv) make available an infrastructure which will allow 
     ambulatory surgery centers to submit data on such measures 
     through electronic and other means;
       ``(v) ensure that the form and manner of submissions under 
     this paragraph by ambulatory surgical centers shall include 
     the option of submitting data with claims for payment under 
     this part;
       ``(vi) ensure that a mechanism is developed to allow an 
     ambulatory surgical center to attest that the center did not 
     furnish services applicable to selected measures for use 
     under the Program established under paragraph (8); and
       ``(vii) establish and have in place, by not later than June 
     30, 2013, an informal process for ambulatory surgery centers 
     to seek a review of and appeal the determination that an 
     ambulatory surgical center did not satisfactorily submit data 
     on quality measures.''; and
       (3) by adding at the end the following new subparagraphs:
       ``(C) To the extent that quality measures implemented by 
     the Secretary under this paragraph for ambulatory surgical 
     centers and under section 1833(t)(17) for hospital outpatient 
     departments are applicable to the provision of surgical 
     services in both ambulatory surgical centers and hospital 
     outpatient departments, the Secretary shall--
       ``(i) require that both ambulatory surgical centers and 
     hospital outpatient departments report data on such measures; 
     and
       ``(ii) make reported data available on the website 
     `Medicare.gov' in a manner that will permit side-by-side 
     comparisons on such measures for ambulatory surgical centers 
     and hospital outpatient departments in the same geographic 
     area.
       ``(D) For each procedure covered for payment in an 
     ambulatory surgical center, the Secretary shall publish, 
     along with the quality reporting comparisons provided for in 
     subparagraph (C), comparisons of the Medicare payment and 
     beneficiary copayment amounts for the procedure when 
     performed in ambulatory surgical centers and hospital 
     outpatient departments in the same geographic area.
       ``(E) The Secretary shall ensure that an ambulatory surgery 
     center and a hospital has the opportunity to review, and 
     submit any corrections for, the data to be made public with 
     respect to the ambulatory surgery center under subparagraph 
     (C)(ii) prior to such data being made public.''.
       (b) Ambulatory Surgical Center Value-Based Purchasing 
     Program.--Section 1833(i) is amended by adding at the end the 
     following new paragraph:
       ``(8) Value-based purchasing program.--
       ``(A) Establishment.--The Secretary shall establish an 
     ambulatory surgical center value-based purchasing program (in 
     this subsection referred to as the `Program') under which, 
     subject to subparagraph (I), each ambulatory surgical center 
     that the Secretary determines meets (or exceeds) the 
     performance standards under subparagraph (D) for the 
     performance period (as established under subparagraph (E)) 
     for a calendar year is eligible, from the amounts made 
     available in the total shared savings pool under subparagraph 
     (I)(iv), for shared savings under subparagraph (I), which 
     shall be in the form, after application of the adjustments 
     under clauses (iv), (v), and (vi) of paragraph (2)(D), of an 
     increase in the amount of payment determined under the 
     payment system under paragraph (2)(D) for surgical services 
     furnished by such center during the subsequent year, by the 
     value-based percentage amount under subparagraph (H) 
     specified by the Secretary for such center and year.
       ``(B) Program start date.--The Program shall apply to 
     payments for procedures occurring on or after January 1, 
     2015.
       ``(C) Measures.--
       ``(i) In general.--For purposes of the Program, the 
     Secretary shall select measures from the measures specified 
     under paragraph (7).
       ``(ii) Availability of measure and data.--The Secretary may 
     not select a measure under this paragraph for use under the 
     Program with respect to a performance period for a calendar 
     year unless such measure has been included, and the reported 
     data available, on the website `Medicare.gov', for at least 1 
     year prior to the beginning of such performance period.
       ``(iii) Measure not applicable unless asc furnishes 
     services appropriate to measure.--A measure selected under 
     this paragraph for use under the Program shall not apply to 
     an ambulatory surgical center if such center does not furnish 
     services appropriate to such measure.
       ``(D) Performance standards.--
       ``(i) Establishment.--The Secretary shall establish 
     performance standards with respect to measures selected under 
     subparagraph (C)(i) for a performance period for a calendar 
     year.
       ``(ii) Achievement and improvement.--The performance 
     standards established under clause (i) shall include levels 
     of achievement and improvement.
       ``(iii) Timing.--The Secretary shall establish and announce 
     the performance standards under clause (i) not later than 60 
     days prior to the beginning of the performance period for the 
     calendar year involved.
       ``(E) Performance period.--For purposes of the Program, the 
     Secretary shall establish the performance period for a 
     calendar year. Such performance period shall begin and end 
     prior to the beginning of such calendar year.
       ``(F) ASC performance score.--The Secretary shall develop a 
     methodology for assessing the total performance of each 
     ambulatory surgery center based on performance standards with 
     respect to the measures selected under subparagraph (C) for a 
     performance period (as established under subparagraph (E)). 
     Using such methodology, the Secretary shall provide for an 
     assessment (in this subsection referred to as the `ASC 
     performance score') for each ambulatory surgical center for 
     each performance period. The methodology shall provide that 
     the ASC performance score is determined using the higher of 
     its achievement or improvement score for each measure.
       ``(G) Appeals.--The Secretary shall establish a process by 
     which ambulatory surgery centers may appeal the calculation 
     of the ambulatory surgery center's performance with respect 
     to the performance standards established under subparagraph 
     (D) and the ambulatory surgery center performance score under 
     subparagraph (E). The Secretary shall ensure that such 
     process provides for resolution of appeals in a timely 
     manner.
       ``(H) Calculation of value-based incentive payment.--
       ``(i) Value-based percentage amount.--For purposes of 
     subparagraph (A), the Secretary shall specify a value-based 
     percentage amount for an ambulatory surgical center for a 
     calendar year.
       ``(ii) Requirements.--In specifying the value-based 
     percentage amount for each ambulatory surgical center for a 
     calendar year under clause (i), the Secretary shall ensure 
     that such percentage is based on--

       ``(I) the ASC performance score of the ambulatory surgery 
     center under subparagraph (F); and
       ``(II) the amount of the total savings pool made available 
     under subparagraph (I)(iii)(I) for such year.

       ``(I) Annual calculation of shared savings funding for 
     value-based incentive payments.--
       ``(i) Determining bonus pool.--In each year of the Program, 
     ambulatory surgery centers shall be eligible to receive 
     payment for shared savings under the Program only if for such 
     year the sum of--

       ``(I) the estimated amount of expenditures under this title 
     for Medicare fee-for-service beneficiaries (as defined in 
     section 1899(h)(3)) for surgical services for which payment 
     is made under the payment system under paragraph (2), 
     adjusted for beneficiary characteristics, and
       ``(II) the estimated amount of expenditures under this 
     title for Medicare fee-for-service beneficiaries (as so 
     defined) for the same surgical services for which payment is 
     made under the prospective payment system under subsection 
     (t), adjusted for beneficiary characteristics,

     is at least the percent specified by the Secretary below the 
     applicable benchmark determined for such year under clause 
     (ii). For purposes of this subparagraph, such sum shall be 
     referred to as `estimated expenditures'. The Secretary shall 
     determine the appropriate percent described in the preceding 
     sentence to account for normal variation in volume of 
     services under this title and to account for changes in the 
     coverage of services

[[Page S3692]]

     in ambulatory surgery centers and hospital outpatient 
     departments during the performance period involved.
       ``(ii) Establish and update benchmark.--For purposes of 
     clause (i), the Secretary shall calculate a benchmark for 
     each year described in such clause equal to the product of--

       ``(I) estimated expenditures described in clause (i) for 
     such year, and
       ``(II) the average annual growth in estimated expenditures 
     for the most recent three years.

     Such benchmark shall be reset at the start of each calendar 
     year, and adjusted for changes in enrollment under the 
     Medicare fee-for-service program.
       ``(iii) Payments based on shared savings.--If the 
     requirement under clause (i) is met for a year--

       ``(I) 50 percent of the total savings pool estimated under 
     clause (iv) for such year shall be made available for shared 
     savings to be paid to ambulatory surgical centers under this 
     paragraph;
       ``(II) a percent (as determined appropriate by the 
     Secretary, in accordance with subparagraph (H)) of such 
     amount made available for such year shall be paid as shared 
     savings to each ambulatory surgery center that is determined 
     under the Program to have met or exceeded performance scores 
     for such year; and
       ``(III) all funds made available under subclause (I) for 
     such year shall be used and paid as sharing savings for such 
     year in accordance with subclause (II).

       ``(iv) Estimate of the total savings pool.--For purposes of 
     clause (iii), the Secretary shall estimate for each year of 
     the Program the total savings pool as the product of--

       ``(I) the conversion factor for such year determined by the 
     Secretary under the payment system under paragraph (2)(D) 
     divided by the conversion factor calculated under subsection 
     (t)(3)(C) for such year for covered OPD services, multiplied 
     by 100, and
       ``(II)(aa) the product of the estimated Medicare 
     expenditures for surgical services described in clause (i)(I) 
     furnished during such year to Medicare fee-for-service 
     beneficiaries (as defined in section 1899(h)(3)) for which 
     payment is made under subsection (t) and the average annual 
     growth in the estimated Medicare expenditures for such 
     services furnished to Medicare fee-for-service beneficiaries 
     (as so defined) for which payment is made under subsection 
     (t) in the most recent available 3 years, less
       ``(bb) the estimated Medicare expenditures for surgical 
     services described in clause (i)(I) furnished to Medicare 
     fee-for-service beneficiaries for which payment was made 
     under subsection (t) in the most recent year.

       ``(J) No effect in subsequent calendar years.--The value-
     based percentage amount under subparagraph (H) and the 
     percent determined under subparagraph (I)(iii)(I) shall apply 
     only with respect to the calendar year involved, and the 
     Secretary shall not take into account such amount or 
     percentage in making payments to an ambulatory surgery center 
     under this section in a subsequent calendar year.''.

     SEC. 4. APC PANEL REPRESENTATION.

       (a) ASC Representative.--The second sentence of section 
     1833(t)(9)(A) of the Social Security Act (42 U.S.C. 
     1395l(t)(9)(A)) is amended by inserting ``and suppliers 
     subject to the prospective payment system (including at least 
     one ambulatory surgical center representative)'' after ``an 
     appropriate selection of representatives of providers''.
       (b) Effective Date.--The amendment made by subsection (a) 
     shall take effect on the date of the enactment of this Act.

     SEC. 5. ENSURING ACCESS TO SAME DAY SERVICES.

       The conditions for coverage of ambulatory surgical center 
     services specified by the Secretary of Health and Human 
     Services pursuant to section 1832(a)(2)(F)(i) of the Social 
     Security Act (42 U.S.C. 1395k(a)(2)(F)(i)) shall not prohibit 
     ambulatory surgical centers from providing individuals with 
     any notice of rights or other required notice on the date of 
     a procedure if more advance notice is not feasible under the 
     circumstances, including when a procedure is scheduled and 
     performed on the same day.
                                 ______
                                 
      By Ms. LANDRIEU (for herself, Mr. Graham, Mr. Akaka, Mr. Begich, 
        Mr. Brown of Massachusetts, Mr. Carper, Ms. Collins, Mrs. 
        Gillibrand, Mr. Kirk, Mr. Lautenberg, Mr. Levin, Mr. Lieberman, 
        Mr. Menendez, Ms. Mikulski, Mr. Sanders, and Mr. Schumer):
  S. 1176. A bill to amend the Horse Protection Act to prohibit the 
shipping, transporting, moving, delivering, receiving, possessing, 
purchasing, selling, or donation of horses and other equines to be 
slaughtered for human consumption, and for other purposes; to the 
Committee on Commerce, Science, and Transportation.
  Ms. LANDRIEU. Mr. President, today I join my colleagues in 
introducing the American Horse Slaughter Prevention Act. This bill will 
prohibit the slaughter of horses for human consumption, a practice that 
the majority of Americans oppose and of which many are unaware. The 
last American horse slaughterhouses were closed in 2007, and there is 
virtually no demand for horse meat for human consumption in the United 
States. Unfortunately, tens of thousands of American horses are still 
being inhumanely transported to foreign processing plants, where they 
are brutally slaughtered.
  Horses are domestic animals that have served men and women as loyal, 
hard working companions for thousands of years; and today, they are 
used primarily for recreation, pleasure, and sport. Horses differ from 
other livestock animals in that we do not raise them for the purpose of 
slaughter. We raise and train them to trust us, perform for us, and 
allow us on their backs. As such, they are entitled to a sense of human 
compassion, of which the practice of horse slaughter is void.
  Throughout the development of this country, human consumption of 
horse meat has not been a widely accepted activity. This is undoubtedly 
due to the unique relationship enjoyed between mankind and horses for 
thousands of years. Horses were there in our work, on our farms, for 
transportation and communication in the taming of a vast American 
Frontier, and on every battlefield prior to World War II. They have 
proven their loyalty and nobility, and without them, the development of 
our country might not have been possible and at the least, would have 
been significantly more difficult. In modern time, horses provide joy 
and entertainment. Through racing, jumping, recreation, and even 
therapy to the disabled, horses touch the lives of many Americans. 
Clearly, they hold a special place in our culture, and it is for these 
reasons, that so many people are strongly opposed to horse slaughter in 
America.
  Unfortunately, horse owners do have to face the realities of 
infirmity, age, or other reasons that may necessitate putting down 
their animal. However, this calls for humane euthanasia, and slaughter 
is simply not an appropriate alternative. The average cost for humane 
euthanasia and disposal is about the same as the cost of one month's 
care, so it is not unreasonable to expect horse owners to accept 
responsibility and incur this minor expense.
  Additionally, because we do not raise horses with the intent to 
slaughter for human consumption, they are frequently treated with drugs 
not approved for use in animals raised for human consumption. These 
drugs can be toxic when ingested by humans. We have no system in the 
United States to track which medications a horse has received 
throughout its lifetime, and as such, American horse meat poses a food 
safety and export risk.
  It is for all of these reasons that I am committed to ensuring that 
this bill is brought to the attention of all of our colleagues here in 
the Senate. I look forward to working with the senior Senator from 
South Carolina and others to address this important issue and pass a 
commonsense bill that reflects the desires of many of our constituents, 
who support the humane treatment of our horses and the prohibition of 
their slaughter for humane consumption.
  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. 1176

       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 ``American Horse Slaughter 
     Prevention Act of 2011''.

     SEC. 2. PROHIBITION ON SHIPPING, TRANSPORTING, MOVING, 
                   DELIVERING, RECEIVING, POSSESSING, PURCHASING, 
                   SELLING, OR DONATION OF HORSES AND OTHER 
                   EQUINES FOR SLAUGHTER FOR HUMAN CONSUMPTION.

       (a) Definitions.--Section 2 of the Horse Protection Act (15 
     U.S.C. 1821) is amended--
       (1) by redesignating paragraphs (1), (2), (3), and (4) as 
     paragraphs (2), (3), (5), and (6), respectively;
       (2) by inserting before paragraph (2) (as redesignated by 
     paragraph (1)) the following:
       ``(1) The term `human consumption' means ingestion by 
     people as a source of food.''; and
       (3) by inserting after paragraph (3) (as redesignated by 
     paragraph (1)) the following:
       ``(4) The term `slaughter' means the killing of 1 or more 
     horses or other equines with the intent to sell or trade the 
     flesh for human consumption.''.
       (b) Findings.--Section 3 of the Horse Protection Act (15 
     U.S.C. 1822) is amended--

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       (1) by redesignating paragraphs (1) through (5) as 
     paragraphs (6) through (10), respectively;
       (2) by adding before paragraph (6) (as redesignated by 
     paragraph (1)) the following:
       ``(1) horses and other equines play a vital role in the 
     collective experience of the United States and deserve 
     protection and compassion;
       ``(2) horses and other equines are domestic animals that 
     are used primarily for recreation, pleasure, and sport;
       ``(3) unlike cows, pigs, and many other animals, horses and 
     other equines are not raised for the purpose of being 
     slaughtered for human consumption;
       ``(4) individuals selling horses or other equines at 
     auctions are seldom aware that the animals may be bought for 
     the purpose of being slaughtered for human consumption;
       ``(5) the Animal and Plant Health Inspection Service of the 
     Department of Agriculture has found that horses and other 
     equines cannot be safely and humanely transported in double 
     deck trailers;''; and
       (3) by striking paragraph (8) (as redesignated by paragraph 
     (1)) and inserting the following:
       ``(8) the movement, showing, exhibition, or sale of sore 
     horses in intrastate commerce, and the shipping, 
     transporting, moving, delivering, receiving, possessing, 
     purchasing, selling, or donation in intrastate commerce of 
     horses and other equines to be slaughtered for human 
     consumption, adversely affect and burden interstate and 
     foreign commerce;''.
       (c) Prohibition.--Section 5 of the Horse Protection Act (15 
     U.S.C. 1824) is amended--
       (1) by redesignating paragraphs (8) through (11) as 
     paragraphs (9) through (12), respectively; and
       (2) by inserting after paragraph 7 the following:
       ``(8) The shipping, transporting, moving, delivering, 
     receiving, possessing, purchasing, selling, or donation of 
     any horse or other equine to be slaughtered for human 
     consumption.''.
       (d) Authority to Detain.--Section 6(e) of the Horse 
     Protection Act (15 U.S.C. 1825(e)) is amended--
       (1) by striking the first sentence of paragraph (1);
       (2) by redesignating paragraphs (1) and (2) and as 
     paragraphs (2) and (3), respectively; and
       (3) by inserting before paragraph (2) (as redesignated by 
     paragraph (2)) the following:
       ``(1) The Secretary may detain for examination, testing, or 
     the taking of evidence--
       ``(A) any horse at any horse show, horse exhibition, or 
     horse sale or auction that is sore or that the Secretary has 
     probable cause to believe is sore; and
       ``(B) any horse or other equine that the Secretary has 
     probable cause to believe is being shipped, transported, 
     moved, delivered, received, possessed, purchased, sold, or 
     donated in violation of section 5(8).''.
       (e) Authorization of Appropriations.--Section 12 of the 
     Horse Protection Act (15 U.S.C. 1831) is amended by striking 
     ``$500,000'' and inserting ``$5,000,000''.
                                 ______
                                 
      By Mr. BINGAMAN:
  S. 1177. A bill to provide grants to States to improve high schools 
and raise graduation rates while ensuring rigorous standards, to 
develop and implement effective school models for struggling students 
and dropouts, and to improve State policies to raise graduation rates, 
and for other purposes; to the Committee on Health, Education, Labor, 
and Pensions.
  Mr. BINGAMAN. Mr. President, I rise today to introduce a series of 
education bills S. 1177, S. 1178, and S. 1179, that reflect many of my 
legislative priorities in K-12 education policy and the reauthorization 
of the Elementary and Secondary Education Act. As Chairman Harkin, 
Ranking Member Enzi, and my Senate colleagues on the Health, Education, 
Labor and Pensions Committee continue negotiations on the 
reauthorization of ESEA, I feel that it is appropriate to introduce 
legislation that I have developed for inclusion in the reauthorized 
legislation. While the bills I have introduced today do not address all 
of the many changes that I feel are necessary to fix No Child Left 
Behind, they do emphasize areas of particular and longstanding concern 
to me and my constituents.
  I strongly believe that there must be a continued federal role in 
education in the United States. I have great respect for State and 
local school officials, and as such I believe that they continue to 
require Federal support to improve student achievement and improve 
graduation rates. Given the severe education funding challenges in my 
home State of New Mexico and across the country, Congress has a 
particular obligation to retain its focus on student achievement, 
especially among low-income and disadvantaged youth.
  Federal education policy should prioritize ending the nationwide high 
school dropout crisis; supporting the effective use of education 
technology, especially in high-poverty schools; ensuring that students 
benefit from high expectations, rigorous standards and curriculum; and 
extending the school day, week, and/or year to ensure that U.S. 
students do not continue to fall behind our global competitors.
  Each year in the United States, approximately 1.2 million students 
drop out of school without receiving a diploma, at an estimated annual 
cost to the country of over $300 billion. My home State of New Mexico 
has one of the lowest statewide graduation rates in the country. The 
Graduation Promise Act, which I am introducing today, authorizes a new 
Federal focus on helping underperforming high schools improve student 
achievement and increase graduation rates.
  The Federal Government should support teachers using the most up-to-
date technology to prepare students for success in college and 21st 
century careers. Today, I reintroduced the Achievement Through 
Technology and Innovation Act of 2011. This bill would renew and 
strengthen the existing education technology program in ESEA. The 
ATTAIN Act recognizes that learning technologies are critical to 
preparing students for the 21st century workforce, ensuring high 
quality teaching, and improving the productivity of our Nation's 
educational system. The Act would provide Federal funds to states and 
local school districts to train teachers, purchase education technology 
hardware and software, and support innovative learning methods and 
student technological literacy.
  All students, regardless of their income levels, should be able to 
benefit from high expectations, high academic standards, and college-
level academic opportunities. The Advanced Programs Act of 2011 would 
renew the current ESEA program, which provides Federal funding to pay 
low-income students' AP exam fees and incentive grants to expand 
student access to AP courses and exams.
  Finally, I wish to highlight my cosponsorship of the Time for 
Innovation Matters in Education Act, which Chairman Harkin introduced 
on April 14th of this year. The TIME Act authorizes Federal funding to 
support expanded learning time, ELT, initiatives in public schools. 
American students spend about 30 percent less time in school than 
students in other leading nations, which hinders our students' ability 
to succeed and compete. ELT programs typically provide extra time for 
academic student, enrichment activities, and teacher collaboration. 
Studies show that programs that significantly increase the total number 
of hours in a regular school schedule can lead to gains in academic 
achievement, particularly for students who are furthest behind.
  Taken together, these four bills present a coherent, consistent 
vision for the Federal role in education reform. We must turn around 
struggling high schools and improve our high school graduation rates. 
We must use the best technology available to provide solid instruction 
and develop the student technological literacy necessary for success in 
the digital age. We must provide all students with access to high 
standards and college-level academic opportunities. We must support 
schools adding the school time necessary to allow our students to keep 
pace with students in high-performing countries.
  Now is not the time for the Federal Government to back away from its 
commitment to helping disadvantaged students succeed in school and in 
life. While the Elementary and Secondary Education Act needs to be 
reconsidered and substantially reworked, we must not roll back Federal 
policy and ignore the persistent achievement gaps that limit our 
national competitiveness and deny millions of our children access to 
the American dream.

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