[Congressional Record Volume 161, Number 64 (Thursday, April 30, 2015)]
[Senate]
[Pages S2570-S2578]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. BARRASSO (for himself, Mr. Donnelly, Mr. Inhofe, Ms.
Heitkamp, Mr. Roberts, Mr. Manchin, Mr. Sullivan, Mr. Rounds,
Mr. Blunt, Mr. McConnell, Mrs. Capito, Mrs. Fischer, and Mr.
Hoeven):
S. 1140. A bill to require the Secretary of the Army and the
Administrator of the Environmental Protection Agency to propose a
regulation revising the definition of the term ``waters of the United
States'', and for other purposes; to the Committee on Environment and
Public Works.
Mr. BARRASSO. Mr. President, last week, I spoke on the floor about a
new report by the Bipartisan Policy Center. This report talked about
the great progress we have made so far in this Congress, as far as
getting things done in a bipartisan way. I believe that is good news.
Republicans in the Senate are committed to continuing our progress and
to holding more votes on areas of bipartisan agreement. So I want to
speak about something Senators on both sides of the aisle agree we can
do to protect America's navigable waters.
Our rivers, lakes and other waterways are among America's most
treasured resources. In my home State of Wyoming, we have some of the
most beautiful rivers in the world: the Snake River, the Wind River,
dozens of others.
The people of Wyoming are devoted to keeping these waterways safe and
pristine for our children and our grandchildren. They understand there
is a right way and a wrong way to do that. It is possible to have
reasonable regulations to help preserve our waterways, while at the
same time allowing it to be used as natural resources.
We have done it for years under the Clean Water Act. That is the
right way to do it. The wrong way to do it is for Washington
bureaucrats--bureaucrats--unelectable, unaccountable, to write harsh
and inflexible rules that could block any use of water or even use of
land in much of the country. The Environmental Protection Agency and
the Army Corps of Engineers have proposed a new rule, a new rule that
would expand the Clean Water Act in what I believe is a dangerous new
direction.
The rule is an attempt to change the definition of what the law calls
waters of the United States. Under the rule, this term could include
ditches, it would include dry areas where water only flows for a short
time after it rains. Federal regulations have never before listed
ditches and other manmade features as waters of the United States.
What the administration is proposing now simply makes no sense. Under
this new rule, the new rule they are proposing, isolated ponds could be
regulated as waters of the United States. This is the kind of pond that
might form in a low-lying piece of land with no connection to a river
or a stream. It could be in someone's back yard.
An isolated pond is not navigable water. That is not what the law was
designed to protect. This is bipartisan, and there is bipartisan
agreement that Washington bureaucrats have no business, none at all,
regulating an isolated pond as a water of the United States. Under this
newly proposed rule, agriculture water management systems could be
regulated as waters of the United States.
We are talking about irrigation ditches. An irrigation ditch is not
navigable water. These are manmade ditches that people dig to move
water from one place to another to grow crops. This kind of agriculture
water is not what the law was designed to protect. There is bipartisan
agreement that Washington bureaucrats have no business regulating an
irrigation ditch as waters of the United States.
Under this outrageously broad new rule, Washington bureaucrats would
now have a say in how farmers and ranchers and families use their own
property. It would allow the Environmental Protection Agency to
regulate private property just based on things such as whether it is
used by animals or birds or even insects. It could regulate any water
that moves over land or infiltrates into the ground.
Well, this is an ominously far-reaching definition. It is the wrong
way--the wrong way--to protect America 's precious water resources.
This rule is not designed to protect the traditional waters of the
United States, it is designed to expand the power of Washington
bureaucrats.
Now, there is a better way to protect America's water, and there is
bipartisan support for it in this body. Today, I have introduced the
Federal Water Quality Protection Act, along with Senators Donnelly,
Inhofe, Heitkamp, Roberts, Manchin, Sullivan, Rounds,
[[Page S2571]]
Blunt, McConnell, Capito, and Fischer. That is bipartisan. It is a
bipartisan agreement that says we need a different approach.
This bill says yes to clean water and no to extreme bureaucracy. It
will give the Environmental Protection Agency the direction it needs,
the direction to write a strong and reasonable rule that truly protects
America's waterways, one that keeps Washington's hands off things such
as irrigation ditches, isolated ponds, and groundwater, one that does
not allow the determination to be based on plants and insects, one that
protects streams that could carry dangerous pollutants to navigable
waters or wetlands that protect those waters from pollutants.
It would make sure Washington bureaucrats comply, comply with other
laws and Executive orders that, well, they have been avoiding. They
would have to do an economic analysis and conduct reviews to protect
small businesses, to protect ranchers, to protect farmers. They would
have to consult with the States. They have to make sure, by consulting
with the States, that we have the approach that works best everywhere,
not just the approach Washington likes best.
The Environmental Protection Agency says our concerns are overblown.
The administration says there is a lot of misunderstanding about what
their regulation covers. It says the Agency has no intention of
regulating things like I have just described. The key word there is
``intention.'' This bill would help to make sure the rules are crystal
clear.
It gives certainty and clarity to farmers, to ranchers, and to small
business owners and their families. People would be able to use their
property without fear of Washington bureaucrats knocking on their door.
We would also be able to enjoy the beautiful rivers and the lakes that
should be preserved and protected. This bipartisan bill does nothing to
block legitimate protection of the true waters of the United States. It
simply restores Washington's attention to the traditional waters that
were always the focus before.
That is what this law should protect. This bill is one easy thing we
can do to protect Americans from runaway bureaucracy. The Senate has
been very productive so far this year. We are going to keep going. We
are going to go with more ideas that have bipartisan support. The
Federal Water Quality Protection Act is one of them. I want to thank
some of the many cosponsors.
______
By Ms. COLLINS (for herself and Mr. Casey):
S. 1141. A bill to amend the Internal Revenue Code of 1986 to provide
tax incentives for small businesses; to the Committee on Finance.
Ms. COLLINS. Mr. President, I rise to introduce the Small Business
Tax Certainty and Growth Act of 2015. I am very pleased to be joined by
my friend and colleague from Pennsylvania, Senator Casey, in
introducing this bipartisan bill.
I know it will come as no surprise to the Presiding Officer that
small businesses are our Nation's job creators. Firms with fewer than
500 employees generate about 50 percent of our Nation's GDP, account
for more than 99 percent of employers, and employ nearly half of all
workers. According to the Bureau of Labor Statistics, small businesses
generated 63 percent of the net new jobs that were created between 1993
and 2013.
Even the smallest firms have a notable effect on our economy. The
Small Business Administration's data indicates that businesses with
fewer than 20 employees accounted for 18 percent of all private sector
jobs in 2013. Our bill allows small businesses to plan for capital
investments that are vital to expansion and job creation. It eases
complex accounting rules for the smallest businesses and it reduces the
tax burden on newly formed ventures.
Recent studies by the National Federation of Independent Business,
NFIB, indicate that taxes are the No. 1 concern of small business
owners and that constant change in the Tax Code is among their chief
concerns, and that is certainly the case in the State of Maine. When I
talk with employers across the State, they constantly tell me the
uncertainty in our Tax Code and in the regulations that are coming out
of Washington make it very difficult for them to plan, to hire new
workers, and to know what is going to be coming their way.
A key feature of our bill is that it provides the certainty that
small businesses need to create and implement long-term capital
investment plans that are vital to their growth. I will give an
example. Section 179 of the Internal Revenue Code allows small
businesses to deduct the costs of acquired assets more rapidly. The
amount of the maximum allowable deduction has changed three times in
the past 8 years. Making matters worse, it is usually not addressed
until it is part of a huge package of extenders passed at the end of
the year, making this tax benefit unpredictable from year to year and,
therefore, difficult for small businesses to take full advantage of in
their long-range planning. They essentially have to gamble that the tax
incentive is going to be extended and that it is going to be made
retroactive to the 1st of the year.
Just recently, I spoke with Patrick Schrader from Arundel Machine, a
small business in Maine. He told me that the uncertainty surrounding
section 179 has hindered his ability to make sound business decisions.
The high-tech equipment that he needs requires months of lead time. For
a small business like Patrick's, it is very risky to increase spending
to expand and create new jobs when the deductibility of the machinery
that helps to make those jobs possible remains unknown until late
December. For business planning, this is information that is vital to
have at the beginning of the year, not at the end of the year. This
uncertainty has a direct impact on hiring decisions and the ability to
take advantage of business opportunities.
Our bill permanently sets the maximum allowable deduction under
section 179 at $500,000, indexed for inflation, and it is also
structured in such a way that it is really targeted to our smaller
businesses.
Our bill will also permanently extend the ability of restaurants,
retailers, and certain businesses that lease their space to depreciate
the costs of property improvements over 15 years rather than over 39
years. Think about that. What restaurant is going to be able to wait 39
years before doing upgrades and improvements? What we are trying to do
is to better match the depreciation schedule with the need to update a
restaurant or a retail space.
The Small Business Tax Certainty and Growth Act also allows more
companies to use the cash method of accounting by permanently doubling
the threshold at which the more complex accrual method is required from
$5 million in gross receipts to $10 million. This includes an expansion
in the ability of small businesses to use simplified methods of
accounting for inventories.
Our legislation also eases the tax burden on a new startup business
by permanently doubling the deduction for those initial expenses from
$5,000 to $10,000, and for a very small business, that is really
important. Similar to section 179, this benefit is limited to small
businesses and the deduction phases out for total expenses exceeding
$60,000.
Our legislation extends for 1 year a provision that provides benefits
to businesses of all sizes, the so-called bonus depreciation.
Let me make clear that I continue to believe Congress should
undertake comprehensive tax reform, with three major goals. It should
result in a Tax Code that is more progrowth, that is fairer, and that
is simpler. I urge the Senate to undertake such a reform, but in the
meantime, the provisions of our bill would make a real difference in
the ability of our Nation's small businesses to keep and create jobs.
I will give another real-life example of what the small business
expensing provisions can mean. I am proud to say Maine is known for its
delicious craft beers. Dan Kleban founded Maine Beer Company with his
brother in 2009. In 6 short years, the company has added 21 good-paying
jobs with generous health and retirement benefits. They plan to hire at
least three more workers shortly. Dan noted that his company's business
decisions were directly affected by section 179 expensing.
Here is why. This provision allowed them to expand by reinvesting
their capital in new equipment to produce more beer and hire more
Mainers.
[[Page S2572]]
Those are both good outcomes. In the last 3 years, they have taken the
maximum deduction allowed under section 179 to acquire the equipment
they needed to expand their business. This year, they hope to use the
provision to finance the cost of a solar project that will offset
nearly 50 percent of their energy consumption.
If their business had been forced to spread these deductions over
many years, its owners would not have been able to grow the business as
they have done nor create those good jobs. This economic benefit is
multiplied when we consider the effect of the investment by Maine Beer
Company and Maine's many other craft brewers on the equipment
manufacturers, the transportation companies needed to haul the new
equipment to their breweries, the increased inventory in their
breweries, and the suppliers of the materials needed to brew the
additional beer. So it has a ripple effect that benefits many other
businesses and allows them to create more jobs as well.
In February, NFIB released new research that backs up this claim with
hard numbers. They found that simply extending section 179 permanently
at the 2014 level could increase employment by as much as 197,000 jobs
during the 10-year window following implementation. U.S. real output
could also increase by as much as $18.6 billion over the same period.
In light of the positive effects this bill would have on small
businesses, on job creation, and on our economy, I urge my colleagues
to join us in supporting the Small Business Tax Certainty and Growth
Act. I would note that the bill has been endorsed by NFIB, the leading
voice for small business.
Mr. President, I ask unanimous consent that a letter of endorsement
from the NFIB be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
National Federation of
Independent Business,
Washington, DC, April 29, 2015.
Hon. Susan Collins,
U.S. Senate, Washington, DC.
Dear Senator Collins: on behalf of the National Federation
of Independent Business (NFIB), the nation's leading small
business advocacy organization, I write in support of your
Small Business Tax Certainty and Growth Act, which would
provide certainty and permanency with regard to several
important tax provisions for small businesses.
The most important source of financing for small business
is their earnings, i.e. cash flow. In fact, cash flow is
ranked 13th out of 75 potential business problems in NFIB's
Small Business and Priorities. This is why NFIB is
particularly pleased to see the inclusion of reformed Section
179 expensing and expanded eligibility for cash accounting in
your legislation.
Expensing provides small businesses with an immediate
source of capital recovery and improved cash flow.
Unfortunately, small business expensing levels have only been
increased on a temporary basis, and at the beginning of this
year the limit reverted back to $25,000, which is highly
inadequate for the needs of small businesses. Unless Congress
acts, this lower expensing limit will mean that only 30
percent of NFIB members will receive the full benefit of
small business expensing in 2015. A 2015 NFIB Research
Foundation study shows that a permanent expansion of the
expensing deduction allowance limit to $500,000 could
increase employment by as much as 197,000 jobs. NFIB supports
permanently increasing expensing limits to $500,000 as well
as permitting taxpayers to expense the cost of some
improvements to real property. We appreciate you
accomplishing these goals in your legislation while also
permanently indexing this provision to inflation.
Furthermore, small businesses would benefit from the
greater ability to use cash accounting for tax purposes. This
simplified accounting process would alleviate some of the
complexity of the tax code, which currently makes it very
difficult for small business owners to plan future
investments, hire new workers and grow their businesses.
Expanded cash accounting would help business owners manage
cash flow while better reflecting their ability to pay taxes.
Thank you for introducing this important legislation. We
look forward to working with you to provide tax relief for
small businesses in the 114th Congress.
Sincerely,
Amanda Austin,
Vice President, Public Policy.
______
By Mrs. MURRAY (for herself, Mr. Durbin, Ms. Mikulski, Mrs.
Boxer, Mr. Blumenthal, Mr. Markey, Mr. Casey, Mr. Murphy, Ms.
Stabenow, Mr. Brown, Mr. Peters, Mr. Schumer, Mr. Leahy, Mrs.
Shaheen, Mr. Reid, Mr. Schatz, Mr. Heinrich, Mr. Wyden, Mr.
Booker, Mr. Merkley, Ms. Hirono, Mr. Reed, Mr. Franken, Mrs.
Gillibrand, Mr. Cardin, Ms. Cantwell, Ms. Warren, Mr. Udall,
Ms. Baldwin, Mr. Kaine, Mrs. Feinstein, Mr. Whitehouse, and Ms.
Klobuchar):
S. 1150. A bill to provide for increases in the Federal minimum wage;
to the Committee on Health, Education, Labor, and Pensions.
Mr. LEAHY. Mr. President, Vermont is among only 22 States in the
Nation with a minimum wage higher than that of the Federal minimum
wage. The Green Mountain State has long recognized the importance of
paying workers a fair and livable wage, and it is past time for
Congress to catch up with the daily struggles of working American
families.
That is why today I am proud to join as a cosponsor of Senator
Murray's Raise the Wage Act, to increase the Federal minimum wage to
$12 by 2020. The Raise the Wage Act will help more 38 million Americans
and thousands of Vermonters who yearn for financial security, for the
sound footing to build their lives, and the lives of their children.
The Federal minimum wage has not kept up with inflation. In fact, it
has lost more than 30 percent of its value since 1968. Over that same
time, productivity has doubled, and low-wage workers today bring more
experience and education to the workforce. American workers are being
asked to work more for less. It is past time to adjust this disparity.
In Vermont, 64,000 workers would see their wages improve if we raised
the minimum wage to $12. That is roughly $141 million in added income
for families in Vermont--families who could spend these earnings at the
store down the street, multiplying the economic impact to resonate
through our local economies and downtown businesses.
Today, nearly two-thirds of Americans who earn the minimum wage or
less are women; the Raise the Wage Act will improve the hard-earned
wages of more than 21 million American women.
No one who works hard in a full-time job should live in poverty in
our land, and raising the minimum wage should not be a question; it is
commonsense, it is fair, and it is right. It is the right step to take
to help ensure that workers can earn wages that support their families.
______
By Mr. CORNYN (for himself and Mr. Cruz):
S. 1153. A bill to provide legal certainty to property owners along
the Red River in Texas, and for other purposes; to the Committee on
Energy and Natural Resources.
Mr. CORNYN. 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. 1153
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 ``Red River Private Property
Protection Act''.
SEC. 2. DISCLAIMER AND OUTDATED SURVEYS.
(a) In General.--The Secretary hereby disclaims any right,
title, and interest to all land located south of the South
Bank boundary line of the Red River in the affected area.
(b) Clarification of Prior Surveys.--Previous surveys
conducted by the Bureau of Land Management shall have no
force or effect in determining the current South Bank
boundary line.
SEC. 3. IDENTIFICATION OF CURRENT BOUNDARY.
(a) Boundary Identification.--To identify the current South
Bank boundary line along the affected area, the Secretary
shall commission a new survey that--
(1) adheres to the gradient boundary survey method;
(2) spans the entire length of the affected area;
(3) is conducted by Licensed State Land Surveyors chosen by
the Texas General Land Office; and
(4) is completed not later than 2years after the date of
the enactment of this Act.
(b) Approval of the Survey.--The Secretary shall submit the
survey conducted under this Act to the Texas General Land
Office for approval. State approval of the completed survey
shall satisfy the requirements under this Act.
SEC. 4. APPEAL.
Not later than 1 year after the survey is completed and
approved pursuant to section
[[Page S2573]]
3, a private property owner who holds right, title, or
interest in the affected area may appeal public domain claims
by the Secretary to an Administrative Law Judge.
SEC. 5. RESOURCE MANAGEMENT PLAN.
The Secretary shall ensure that no parcels of land in the
affected area are treated as Federal land for the purpose of
any resource management plan until the survey has been
completed and approved and the Secretary ensures that the
parcel is not subject to further appeal pursuant to this Act.
SEC. 6. CONSTRUCTION.
This Act does not change or affect in any manner the
interest of the States or sovereignty rights of federally
recognized Indian tribes over lands located to the north of
the South Bank boundary line of the Red River as established
by this Act.
SEC. 7. SALE OF REMAINING RED RIVER SURFACE RIGHTS.
(a) Competitive Sale of Identified Federal Lands.--After
the survey has been completed and approved and the Secretary
ensures that a parcel is not subject to further appeal under
this Act, the Secretary shall offer any and all such
remaining identified Federal lands for disposal by
competitive sale for not less than fair market value as
determined by an appraisal conducted in accordance with
nationally recognized appraisal standards, including the
Uniform Appraisal Standards for Federal Land Acquisitions;
and the Uniform Standards of Professional Appraisal Practice.
(b) Existing Rights.--The sale of identified Federal lands
under this section shall be subject to valid existing tribal,
State, and local rights.
(c) Proceeds of Sale of Lands.--Net proceeds from the sale
of identified Federal lands under this section shall be used
to offset any costs associated with this Act.
(d) Report.--Not later than 5 years after the date of the
enactment of this Act, the Secretary shall submit to the
Committee on Natural Resources of the House of
Representatives and the Committee on Energy and Natural
Resources of the Senate a list of any identified Federal
lands that have not been sold under subsection (a) and the
reasons such lands were not sold.
SEC. 8. DEFINITIONS.
For the purposes of this Act:
(1) Affected area.--The term ``affected area'' means lands
along the approximately 116-mile stretch of the Red River
from its confluence with the North Fork of the Red River on
the west to the 98th meridian on the east between the States
of Texas and Oklahoma.
(2) Secretary.--The term ``Secretary'' means the Secretary
of the Interior, acting through the Director of Bureau of
Land Management.
(3) South bank.--The term ``South Bank'' means the water-
washed and relatively permanent elevation or acclivity,
commonly called a cut bank, along the southerly or right side
of the Red River which separates its bed from the adjacent
upland, whether valley or hill, and usually serves to confine
the waters within the bed and to preserve the course of the
river; as specified in the fifth paragraph of the decree
rendered March 12, 1923, in Oklahoma v. Texas, 261 U. S. 340,
43 S. Ct. 376, 67 L. Ed. 687.
(4) South bank boundary line.--The term ``South Bank
boundary line'' means the boundary between Texas and Oklahoma
identified through the gradient boundary survey method ; as
specified in the sixth and seventh paragraphs of the decree
rendered March 12, 1923, in Oklahoma v. Texas, 261 U. S. 340,
43 S. Ct. 376, 67 L. Ed. 687.
(5) Gradient boundary survey method.--The term ``gradient
boundary survey method'' means the measurement technique used
to locate the South Bank boundary line under the methodology
established by the United States Supreme Court which
recognizes that the boundary line between the States of Texas
and Oklahoma along the Red River is subject to such changes
as have been or may be wrought by the natural and gradual
processes known as erosion and accretion as specified in the
second, third, and fourth paragraphs of the decree rendered
March 12, 1923, in Oklahoma v. Texas, 261 U. S. 340, 43 S.
Ct. 376, 67 L. Ed. 687.
______
By Mr. DURBIN (for himself, Mr. Whitehouse, Mr. Brown, and Mr.
Franken):
S. 1156. A bill to amend title 11, United States Code, to improve
protections for employees and retirees in business bankruptcies; to the
Committee on the Judiciary.
Mr. DURBIN. 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. 1156
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 ``Protecting
Employees and Retirees in Business Bankruptcies Act of
2015''.
(b) Table of Contents.--The table of contents of this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings.
TITLE I--IMPROVING RECOVERIES FOR EMPLOYEES AND RETIREES
Sec. 101. Increased wage priority.
Sec. 102. Claim for stock value losses in defined contribution plans.
Sec. 103. Priority for severance pay.
Sec. 104. Financial returns for employees and retirees.
Sec. 105. Priority for WARN Act damages.
TITLE II--REDUCING EMPLOYEES' AND RETIREES' LOSSES
Sec. 201. Rejection of collective bargaining agreements.
Sec. 202. Payment of insurance benefits to retired employees.
Sec. 203. Protection of employee benefits in a sale of assets.
Sec. 204. Claim for pension losses.
Sec. 205. Payments by secured lender.
Sec. 206. Preservation of jobs and benefits.
Sec. 207. Termination of exclusivity.
Sec. 208. Claim for withdrawal liability.
TITLE III--RESTRICTING EXECUTIVE COMPENSATION PROGRAMS
Sec. 301. Executive compensation upon exit from bankruptcy.
Sec. 302. Limitations on executive compensation enhancements.
Sec. 303. Assumption of executive benefit plans.
Sec. 304. Recovery of executive compensation.
Sec. 305. Preferential compensation transfer.
TITLE IV--OTHER PROVISIONS
Sec. 401. Union proof of claim.
Sec. 402. Exception from automatic stay.
SEC. 2. FINDINGS.
The Congress finds the following:
(1) Business bankruptcies have increased sharply in recent
years and remain at high levels. These bankruptcies include
several of the largest business bankruptcy filings in
history. As the use of bankruptcy has expanded, job
preservation and retirement security are placed at greater
risk.
(2) Laws enacted to improve recoveries for employees and
retirees and limit their losses in bankruptcy cases have not
kept pace with the increasing and broader use of bankruptcy
by businesses in all sectors of the economy. However, while
protections for employees and retirees in bankruptcy cases
have eroded, management compensation plans devised for those
in charge of troubled businesses have become more prevalent
and are escaping adequate scrutiny.
(3) Changes in the law regarding these matters are urgently
needed as bankruptcy is used to address increasingly more
complex and diverse conditions affecting troubled businesses
and industries.
TITLE I--IMPROVING RECOVERIES FOR EMPLOYEES AND RETIREES
SEC. 101. INCREASED WAGE PRIORITY.
Section 507(a) of title 11, United States Code, is
amended--
(1) in paragraph (4)--
(A) by striking ``$10,000'' and inserting ``$20,000'';
(B) by striking ``within 180 days''; and
(C) by striking ``or the date of the cessation of the
debtor's business, whichever occurs first,'';
(2) in paragraph (5)(A), by striking--
(A) ``within 180 days''; and
(B) ``or the date of the cessation of the debtor's
business, whichever occurs first''; and
(3) in paragraph (5), by striking subparagraph (B) and
inserting the following:
``(B) for each such plan, to the extent of the number of
employees covered by each such plan, multiplied by
$20,000.''.
SEC. 102. CLAIM FOR STOCK VALUE LOSSES IN DEFINED
CONTRIBUTION PLANS.
Section 101(5) of title 11, United States Code, is
amended--
(1) in subparagraph (A), by striking ``or'' at the end;
(2) in subparagraph (B), by striking the period at the end
and inserting ``; or''; and
(3) by adding at the end the following:
``(C) right or interest in equity securities of the debtor,
or an affiliate of the debtor, held in a defined contribution
plan (within the meaning of section 3(34) of the Employee
Retirement Income Security Act of 1974 (29 U.S.C. 1002(34)))
for the benefit of an individual who is not an insider, a
senior executive officer, or any of the 20 next most highly
compensated employees of the debtor (if 1 or more are not
insiders), if such securities were attributable to either
employer contributions by the debtor or an affiliate of the
debtor, or elective deferrals (within the meaning of section
402(g) of the Internal Revenue Code of 1986), and any
earnings thereon, if an employer or plan sponsor who has
commenced a case under this title has committed fraud with
respect to such plan or has otherwise breached a duty to the
participant that has proximately caused the loss of value.''.
SEC. 103. PRIORITY FOR SEVERANCE PAY.
Section 503(b) of title 11, United States Code, is
amended--
(1) in paragraph (8)(B), by striking ``and'' at the end;
(2) in paragraph (9), by striking the period and inserting
a semicolon; and
(3) by adding at the end the following:
``(10) severance pay owed to employees of the debtor (other
than to an insider, other senior management, or a consultant
retained to provide services to the debtor), under a plan,
program, or policy generally applicable to employees of the
debtor (but not under an individual contract of employment),
or owed
[[Page S2574]]
pursuant to a collective bargaining agreement, for layoff or
termination on or after the date of the filing of the
petition, which pay shall be deemed earned in full upon such
layoff or termination of employment; and''.
SEC. 104. FINANCIAL RETURNS FOR EMPLOYEES AND RETIREES.
Section 1129(a) of title 11, United States Code is
amended--
(1) by adding at the end the following:
``(17) The plan provides for recovery of damages payable
for the rejection of a collective bargaining agreement, or
for other financial returns as negotiated by the debtor and
the authorized representative under section 1113 (to the
extent that such returns are paid under, rather than outside
of, a plan).''; and
(2) by striking paragraph (13) and inserting the following:
``(13) With respect to retiree benefits, as that term is
defined in section 1114(a), the plan--
``(A) provides for the continuation after its effective
date of payment of all retiree benefits at the level
established pursuant to subsection (e)(1)(B) or (g) of
section 1114 at any time before the date of confirmation of
the plan, for the duration of the period for which the debtor
has obligated itself to provide such benefits, or if no
modifications are made before confirmation of the plan, the
continuation of all such retiree benefits maintained or
established in whole or in part by the debtor before the date
of the filing of the petition; and
``(B) provides for recovery of claims arising from the
modification of retiree benefits or for other financial
returns, as negotiated by the debtor and the authorized
representative (to the extent that such returns are paid
under, rather than outside of, a plan).''.
SEC. 105. PRIORITY FOR WARN ACT DAMAGES.
Section 503(b)(1)(A)(ii) of title 11, United States Code is
amended to read as follows:
``(ii) wages and benefits awarded pursuant to a judicial
proceeding or a proceeding of the National Labor Relations
Board as back pay or damages attributable to any period of
time occurring after the date of commencement of the case
under this title, as a result of a violation of Federal or
State law by the debtor, without regard to the time of the
occurrence of unlawful conduct on which the award is based or
to whether any services were rendered on or after the
commencement of the case, including an award by a court under
section 2901 of title 29, United States Code, of up to 60
days' pay and benefits following a layoff that occurred or
commenced at a time when such award period includes a period
on or after the commencement of the case, if the court
determines that payment of wages and benefits by reason of
the operation of this clause will not substantially increase
the probability of layoff or termination of current employees
or of nonpayment of domestic support obligations during the
case under this title;''.
TITLE II--REDUCING EMPLOYEES' AND RETIREES' LOSSES
SEC. 201. REJECTION OF COLLECTIVE BARGAINING AGREEMENTS.
Section 1113 of title 11, United States Code, is amended by
striking subsections (a) through (f) and inserting the
following:
``(a) The debtor in possession, or the trustee if one has
been appointed under this chapter, other than a trustee in a
case covered by subchapter IV of this chapter and by title I
of the Railway Labor Act, may reject a collective bargaining
agreement only in accordance with this section. In this
section, a reference to the trustee includes the debtor in
possession.
``(b) No provision of this title shall be construed to
permit the trustee to unilaterally terminate or alter any
provision of a collective bargaining agreement before
complying with this section. The trustee shall timely pay all
monetary obligations arising under the terms of the
collective bargaining agreement. Any such payment required to
be made before a plan confirmed under section 1129 is
effective has the status of an allowed administrative expense
under section 503.
``(c)(1) If the trustee seeks modification of a collective
bargaining agreement, the trustee shall provide notice to the
labor organization representing the employees covered by the
agreement that modifications are being proposed under this
section, and shall promptly provide an initial proposal for
modifications to the agreement. Thereafter, the trustee shall
confer in good faith with the labor organization, at
reasonable times and for a reasonable period in light of the
complexity of the case, in attempting to reach mutually
acceptable modifications of such agreement.
``(2) The initial proposal and subsequent proposals by the
trustee for modification of a collective bargaining agreement
shall be based upon a business plan for the reorganization of
the debtor, and shall reflect the most complete and reliable
information available. The trustee shall provide to the labor
organization all information that is relevant for
negotiations. The court may enter a protective order to
prevent the disclosure of information if disclosure could
compromise the debtor's position with respect to its
competitors in the industry, subject to the needs of the
labor organization to evaluate the trustee's proposals and
any application for rejection of the agreement or for interim
relief pursuant to this section.
``(3) In consideration of Federal policy encouraging the
practice and process of collective bargaining and in
recognition of the bargained-for expectations of the
employees covered by the agreement, modifications proposed by
the trustee--
``(A) shall be proposed only as part of a program of
workforce and nonworkforce cost savings devised for the
reorganization of the debtor, including savings in management
personnel costs;
``(B) shall be limited to modifications designed to achieve
a specified aggregate financial contribution for the
employees covered by the agreement (taking into consideration
any labor cost savings negotiated within the 12-month period
before the filing of the petition), and shall be not more
than the minimum savings essential to permit the debtor to
exit bankruptcy, such that confirmation of a plan of
reorganization is not likely to be followed by the
liquidation, or the need for further financial
reorganization, of the debtor (or any successor to the
debtor) in the short term; and
``(C) shall not be disproportionate or overly burden the
employees covered by the agreement, either in the amount of
the cost savings sought from such employees or the nature of
the modifications.
``(d)(1) If, after a period of negotiations, the trustee
and the labor organization have not reached an agreement over
mutually satisfactory modifications, and further negotiations
are not likely to produce mutually satisfactory
modifications, the trustee may file a motion seeking
rejection of the collective bargaining agreement after notice
and a hearing. Absent agreement of the parties, no such
hearing shall be held before the expiration of the 21-day
period beginning on the date on which notice of the hearing
is provided to the labor organization representing the
employees covered by the agreement. Only the debtor and the
labor organization may appear and be heard at such hearing.
An application for rejection shall seek rejection effective
upon the entry of an order granting the relief.
``(2) In consideration of Federal policy encouraging the
practice and process of collective bargaining and in
recognition of the bargained-for expectations of the
employees covered by the agreement, the court may grant a
motion seeking rejection of a collective bargaining agreement
only if, based on clear and convincing evidence--
``(A) the court finds that the trustee has complied with
the requirements of subsection (c);
``(B) the court has considered alternative proposals by the
labor organization and has concluded that such proposals do
not meet the requirements of paragraph (3)(B) of subsection
(c);
``(C) the court finds that further negotiations regarding
the trustee's proposal or an alternative proposal by the
labor organization are not likely to produce an agreement;
``(D) the court finds that implementation of the trustee's
proposal shall not--
``(i) cause a material diminution in the purchasing power
of the employees covered by the agreement;
``(ii) adversely affect the ability of the debtor to retain
an experienced and qualified workforce; or
``(iii) impair the debtor's labor relations such that the
ability to achieve a feasible reorganization would be
compromised; and
``(E) the court concludes that rejection of the agreement
and immediate implementation of the trustee's proposal is
essential to permit the debtor to exit bankruptcy, such that
confirmation of a plan of reorganization is not likely to be
followed by liquidation, or the need for further financial
reorganization, of the debtor (or any successor to the
debtor) in the short term.
``(3) If the trustee has implemented a program of incentive
pay, bonuses, or other financial returns for insiders, senior
executive officers, or the 20 next most highly compensated
employees or consultants providing services to the debtor
during the bankruptcy, or such a program was implemented
within 180 days before the date of the filing of the
petition, the court shall presume that the trustee has failed
to satisfy the requirements of subsection (c)(3)(C).
``(4) In no case shall the court enter an order rejecting a
collective bargaining agreement that would result in
modifications to a level lower than the level proposed by the
trustee in the proposal found by the court to have complied
with the requirements of this section.
``(5) At any time after the date on which an order
rejecting a collective bargaining agreement is entered, or in
the case of an agreement entered into between the trustee and
the labor organization providing mutually satisfactory
modifications, at any time after such agreement has been
entered into, the labor organization may apply to the court
for an order seeking an increase in the level of wages or
benefits, or relief from working conditions, based upon
changed circumstances. The court shall grant the request only
if the increase or other relief is not inconsistent with the
standard set forth in paragraph (2)(E).
``(e) During a period in which a collective bargaining
agreement at issue under this section continues in effect,
and if essential to the continuation of the debtor's business
or in order to avoid irreparable damage to the estate, the
court, after notice and a hearing, may authorize the trustee
to implement interim changes in the terms, conditions, wages,
benefits, or work rules provided by the collective bargaining
agreement. Any hearing under this subsection shall be
scheduled in accordance with the needs of the trustee. The
implementation of such interim changes shall not render the
application for rejection moot.
[[Page S2575]]
``(f)(1) Rejection of a collective bargaining agreement
constitutes a breach of the agreement, and shall be effective
no earlier than the entry of an order granting such relief.
``(2) Notwithstanding paragraph (1), solely for purposes of
determining and allowing a claim arising from the rejection
of a collective bargaining agreement, rejection shall be
treated as rejection of an executory contract under section
365(g) and shall be allowed or disallowed in accordance with
section 502(g)(1). No claim for rejection damages shall be
limited by section 502(b)(7). Economic self-help by a labor
organization shall be permitted upon a court order granting a
motion to reject a collective bargaining agreement under
subsection (d) or pursuant to subsection (e), and no
provision of this title or of any other provision of Federal
or State law may be construed to the contrary.
``(g) The trustee shall provide for the reasonable fees and
costs incurred by a labor organization under this section,
upon request and after notice and a hearing.
``(h) A collective bargaining agreement that is assumed
shall be assumed in accordance with section 365.''.
SEC. 202. PAYMENT OF INSURANCE BENEFITS TO RETIRED EMPLOYEES.
Section 1114 of title 11, United States Code, is amended--
(1) in subsection (a), by inserting ``, without regard to
whether the debtor asserts a right to unilaterally modify
such payments under such plan, fund, or program'' before the
period at the end;
(2) in subsection (b)(2), by inserting after ``section''
the following: ``, and a labor organization serving as the
authorized representative under subsection (c)(1),'';
(3) by striking subsection (f) and inserting the following:
``(f)(1) If a trustee seeks modification of retiree
benefits, the trustee shall provide a notice to the
authorized representative that modifications are being
proposed pursuant to this section, and shall promptly provide
an initial proposal. Thereafter, the trustee shall confer in
good faith with the authorized representative at reasonable
times and for a reasonable period in light of the complexity
of the case in attempting to reach mutually satisfactory
modifications.
``(2) The initial proposal and subsequent proposals by the
trustee shall be based upon a business plan for the
reorganization of the debtor and shall reflect the most
complete and reliable information available. The trustee
shall provide to the authorized representative all
information that is relevant for the negotiations. The court
may enter a protective order to prevent the disclosure of
information if disclosure could compromise the debtor's
position with respect to its competitors in the industry,
subject to the needs of the authorized representative to
evaluate the trustee's proposals and an application pursuant
to subsection (g) or (h).
``(3) Modifications proposed by the trustee--
``(A) shall be proposed only as part of a program of
workforce and nonworkforce cost savings devised for the
reorganization of the debtor, including savings in management
personnel costs;
``(B) shall be limited to modifications that are designed
to achieve a specified aggregate financial contribution for
the retiree group represented by the authorized
representative (taking into consideration any cost savings
implemented within the 12-month period before the date of
filing of the petition with respect to the retiree group),
and shall be no more than the minimum savings essential to
permit the debtor to exit bankruptcy, such that confirmation
of a plan of reorganization is not likely to be followed by
the liquidation, or the need for further financial
reorganization, of the debtor (or any successor to the
debtor) in the short term; and
``(C) shall not be disproportionate or overly burden the
retiree group, either in the amount of the cost savings
sought from such group or the nature of the modifications.'';
(4) in subsection (g)--
(A) by striking ``(g)'' and all that follows through the
semicolon at the end of paragraph (3) and inserting the
following:
``(g)(1) If, after a period of negotiations, the trustee
and the authorized representative have not reached agreement
over mutually satisfactory modifications and further
negotiations are not likely to produce mutually satisfactory
modifications, the trustee may file a motion seeking
modifications in the payment of retiree benefits after notice
and a hearing. Absent agreement of the parties, no such
hearing shall be held before the expiration of the 21-day
period beginning on the date on which notice of the hearing
is provided to the authorized representative. Only the debtor
and the authorized representative may appear and be heard at
such hearing.
``(2) The court may grant a motion to modify the payment of
retiree benefits only if, based on clear and convincing
evidence--
``(A) the court finds that the trustee has complied with
the requirements of subsection (f);
``(B) the court has considered alternative proposals by the
authorized representative and has determined that such
proposals do not meet the requirements of subsection
(f)(3)(B);
``(C) the court finds that further negotiations regarding
the trustee's proposal or an alternative proposal by the
authorized representative are not likely to produce a
mutually satisfactory agreement;
``(D) the court finds that implementation of the proposal
shall not cause irreparable harm to the affected retirees;
and
``(E) the court concludes that an order granting the motion
and immediate implementation of the trustee's proposal is
essential to permit the debtor to exit bankruptcy, such that
confirmation of a plan of reorganization is not likely to be
followed by liquidation, or the need for further financial
reorganization, of the debtor (or a successor to the debtor)
in the short term.
``(3) If a trustee has implemented a program of incentive
pay, bonuses, or other financial returns for insiders, senior
executive officers, or the 20 next most highly compensated
employees or consultants providing services to the debtor
during the bankruptcy, or such a program was implemented
within 180 days before the date of the filing of the
petition, the court shall presume that the trustee has failed
to satisfy the requirements of subparagraph (f)(3)(C).''; and
(B) by striking ``except that in no case'' and inserting
the following:
``(4) In no case''; and
(5) by striking subsection (k) and redesignating
subsections (l) and (m) as subsections (k) and (l),
respectively.
SEC. 203. PROTECTION OF EMPLOYEE BENEFITS IN A SALE OF
ASSETS.
Section 363(b) of title 11, United States Code, is amended
by adding at the end the following:
``(3) In approving a sale under this subsection, the court
shall consider the extent to which a bidder has offered to
maintain existing jobs, preserve terms and conditions of
employment, and assume or match pension and retiree health
benefit obligations in determining whether an offer
constitutes the highest or best offer for such property.''.
SEC. 204. CLAIM FOR PENSION LOSSES.
Section 502 of title 11, United States Code, is amended by
adding at the end the following:
``(l) The court shall allow a claim asserted by an active
or retired participant, or by a labor organization
representing such participants, in a defined benefit plan
terminated under section 4041 or 4042 of the Employee
Retirement Income Security Act of 1974, for any shortfall in
pension benefits accrued as of the effective date of the
termination of such pension plan as a result of the
termination of the plan and limitations upon the payment of
benefits imposed pursuant to section 4022 of such Act,
notwithstanding any claim asserted and collected by the
Pension Benefit Guaranty Corporation with respect to such
termination.
``(m) The court shall allow a claim of a kind described in
section 101(5)(C) by an active or retired participant in a
defined contribution plan (within the meaning of section
3(34) of the Employee Retirement Income Security Act of 1974
(29 U.S.C. 1002(34))), or by a labor organization
representing such participants. The amount of such claim
shall be measured by the market value of the stock at the
time of contribution to, or purchase by, the plan and the
value as of the commencement of the case.''.
SEC. 205. PAYMENTS BY SECURED LENDER.
Section 506(c) of title 11, United States Code, is amended
by adding at the end the following: ``If employees have not
received wages, accrued vacation, severance, or other
benefits owed under the policies and practices of the debtor,
or pursuant to the terms of a collective bargaining
agreement, for services rendered on and after the date of the
commencement of the case, such unpaid obligations shall be
deemed necessary costs and expenses of preserving, or
disposing of, property securing an allowed secured claim and
shall be recovered even if the trustee has otherwise waived
the provisions of this subsection under an agreement with the
holder of the allowed secured claim or a successor or
predecessor in interest.''.
SEC. 206. PRESERVATION OF JOBS AND BENEFITS.
Chapter 11 of title 11, United States Code, is amended--
(1) by inserting before section 1101 the following:
``Sec. 1100. Statement of purpose
``A debtor commencing a case under this chapter shall have
as its principal purpose the reorganization of its business
to preserve going concern value to the maximum extent
possible through the productive use of its assets and the
preservation of jobs that will sustain productive economic
activity.'';
(2) in section 1129(a), as amended by section 104, by
adding at the end the following:
``(18) The debtor has demonstrated that the reorganization
preserves going concern value to the maximum extent possible
through the productive use of the debtor's assets and
preserves jobs that sustain productive economic activity.'';
(3) in section 1129(c)--
(A) by inserting ``(1)'' after ``(c)''; and
(B) by striking the last sentence and inserting the
following:
``(2) If the requirements of subsections (a) and (b) are
met with respect to more than 1 plan, the court shall, in
determining which plan to confirm--
``(A) consider the extent to which each plan would preserve
going concern value through the productive use of the
debtor's assets and the preservation of jobs that sustain
productive economic activity; and
``(B) confirm the plan that better serves such interests.
``(3) A plan that incorporates the terms of a settlement
with a labor organization representing employees of the
debtor shall presumptively constitute the plan that satisfies
this subsection.''; and
[[Page S2576]]
(4) in the table of sections, by inserting before the item
relating to section 1101 the following:
``1100. Statement of purpose.''.
SEC. 207. TERMINATION OF EXCLUSIVITY.
Section 1121(d) of title 11, United States Code, is amended
by adding at the end the following:
``(3) For purposes of this subsection, cause for reducing
the 120-day period or the 180-day period includes the
following:
``(A) The filing of a motion pursuant to section 1113
seeking rejection of a collective bargaining agreement if a
plan based upon an alternative proposal by the labor
organization is reasonably likely to be confirmed within a
reasonable time.
``(B) The proposed filing of a plan by a proponent other
than the debtor, which incorporates the terms of a settlement
with a labor organization if such plan is reasonably likely
to be confirmed within a reasonable time.''.
SEC. 208. CLAIM FOR WITHDRAWAL LIABILITY.
Section 503(b) of title 11, United States Code, as amended
by section 103 of this Act, is amended by adding at the end
the following:
``(11) with respect to withdrawal liability owed to a
multiemployer pension plan for a complete or partial
withdrawal pursuant to section 4201 of the Employee
Retirement Income Security Act of 1974 (29 U.S.C. 1381) where
such withdrawal occurs on or after the commencement of the
case, an amount equal to the amount of vested benefits
payable from such pension plan that accrued as a result of
employees' services rendered to the debtor during the period
beginning on the date of commencement of the case and ending
on the date of the withdrawal from the plan.''.
TITLE III--RESTRICTING EXECUTIVE COMPENSATION PROGRAMS
SEC. 301. EXECUTIVE COMPENSATION UPON EXIT FROM BANKRUPTCY.
Section 1129(a) of title 11, United States Code, is
amended--
(1) in paragraph (4), by adding at the end the following:
``Except for compensation subject to review under paragraph
(5), payments or other distributions under the plan to or for
the benefit of insiders, senior executive officers, and any
of the 20 next most highly compensated employees or
consultants providing services to the debtor, shall not be
approved except as part of a program of payments or
distributions generally applicable to employees of the
debtor, and only to the extent that the court determines that
such payments are not excessive or disproportionate compared
to distributions to the debtor's nonmanagement workforce.'';
and
(2) in paragraph (5)--
(A) in subparagraph (A)(ii), by striking ``and'' at the
end;
(B) in subparagraph (B), by striking the period at the end
and inserting ``; and''; and
(C) by adding at the end the following:
``(C) the compensation disclosed pursuant to subparagraph
(B) has been approved by, or is subject to the approval of,
the court as reasonable when compared to individuals holding
comparable positions at comparable companies in the same
industry and not disproportionate in light of economic
concessions by the debtor's nonmanagement workforce during
the case.''.
SEC. 302. LIMITATIONS ON EXECUTIVE COMPENSATION ENHANCEMENTS.
Section 503(c) of title 11, United States Code, is
amended--
(1) in paragraph (1), in the matter preceding subparagraph
(A)--
(A) by inserting ``, a senior executive officer, or any of
the 20 next most highly compensated employees or
consultants'' after ``an insider'';
(B) by inserting ``or for the payment of performance or
incentive compensation, or a bonus of any kind, or other
financial returns designed to replace or enhance incentive,
stock, or other compensation in effect before the date of the
commencement of the case,'' after ``remain with the debtor's
business,''; and
(C) by inserting ``clear and convincing'' before ``evidence
in the record''; and
(2) by amending paragraph (3) to read as follows:
``(3) other transfers or obligations, to or for the benefit
of insiders, senior executive officers, managers, or
consultants providing services to the debtor, in the absence
of a finding by the court, based upon clear and convincing
evidence, and without deference to the debtor's request for
such payments, that such transfers or obligations are
essential to the survival of the debtor's business or (in the
case of a liquidation of some or all of the debtor's assets)
essential to the orderly liquidation and maximization of
value of the assets of the debtor, in either case, because of
the essential nature of the services provided, and then only
to the extent that the court finds such transfers or
obligations are reasonable compared to individuals holding
comparable positions at comparable companies in the same
industry and not disproportionate in light of economic
concessions by the debtor's nonmanagement workforce during
the case.''.
SEC. 303. ASSUMPTION OF EXECUTIVE BENEFIT PLANS.
Section 365 of title 11, United States Code, is amended--
(1) in subsection (a), by striking ``and (d)'' and
inserting ``(d), (q), and (r)''; and
(2) by adding at the end the following:
``(q) No deferred compensation arrangement for the benefit
of insiders, senior executive officers, or any of the 20 next
most highly compensated employees of the debtor shall be
assumed if a defined benefit plan for employees of the debtor
has been terminated pursuant to section 4041 or 4042 of the
Employee Retirement Income Security Act of 1974, on or after
the date of the commencement of the case or within 180 days
before the date of the commencement of the case.
``(r) No plan, fund, program, or contract to provide
retiree benefits for insiders, senior executive officers, or
any of the 20 next most highly compensated employees of the
debtor shall be assumed if the debtor has obtained relief
under subsection (g) or (h) of section 1114 to impose
reductions in retiree benefits or under subsection (d) or (e)
of section 1113 to impose reductions in the health benefits
of active employees of the debtor, or reduced or eliminated
health benefits for active or retired employees within 180
days before the date of the commencement of the case.''.
SEC. 304. RECOVERY OF EXECUTIVE COMPENSATION.
(a) In General.--Subchapter III of chapter 5 of title 11,
United States Code, is amended by inserting after section 562
the following:
``Sec. 563. Recovery of executive compensation
``(a) If a debtor has obtained relief under subsection (d)
of section 1113, or subsection (g) of section 1114, by which
the debtor reduces the cost of its obligations under a
collective bargaining agreement or a plan, fund, or program
for retiree benefits as defined in section 1114(a), the
court, in granting relief, shall determine the percentage
diminution in the value of the obligations when compared to
the debtor's obligations under the collective bargaining
agreement, or with respect to retiree benefits, as of the
date of the commencement of the case under this title before
granting such relief. In making its determination, the court
shall include reductions in benefits, if any, as a result of
the termination pursuant to section 4041 or 4042 of the
Employee Retirement Income Security Act of 1974, of a defined
benefit plan administered by the debtor, or for which the
debtor is a contributing employer, effective at any time on
or after 180 days before the date of the commencement of a
case under this title. The court shall not take into account
pension benefits paid or payable under such Act as a result
of any such termination.
``(b) If a defined benefit pension plan administered by the
debtor, or for which the debtor is a contributing employer,
has been terminated pursuant to section 4041 or 4042 of the
Employee Retirement Income Security Act of 1974, effective at
any time on or after 180 days before the date of the
commencement of a case under this title, but a debtor has not
obtained relief under subsection (d) of section 1113, or
subsection (g) of section 1114, the court, upon motion of a
party in interest, shall determine the percentage diminution
in the value of benefit obligations when compared to the
total benefit liabilities before such termination. The court
shall not take into account pension benefits paid or payable
under title IV of the Employee Retirement Income Security Act
of 1974 as a result of any such termination.
``(c) Upon the determination of the percentage diminution
in value under subsection (a) or (b), the estate shall have a
claim for the return of the same percentage of the
compensation paid, directly or indirectly (including any
transfer to a self-settled trust or similar device, or to a
nonqualified deferred compensation plan under section
409A(d)(1) of the Internal Revenue Code of 1986) to any
officer of the debtor serving as member of the board of
directors of the debtor within the year before the date of
the commencement of the case, and any individual serving as
chairman or lead director of the board of directors at the
time of the granting of relief under section 1113 or 1114 or,
if no such relief has been granted, the termination of the
defined benefit plan.
``(d) The trustee or a committee appointed pursuant to
section 1102 may commence an action to recover such claims,
except that if neither the trustee nor such committee
commences an action to recover such claim by the first date
set for the hearing on the confirmation of plan under section
1129, any party in interest may apply to the court for
authority to recover such claim for the benefit of the
estate. The costs of recovery shall be borne by the estate.
``(e) The court shall not award postpetition compensation
under section 503(c) or otherwise to any person subject to
subsection (c) if there is a reasonable likelihood that such
compensation is intended to reimburse or replace compensation
recovered by the estate under this section.''.
(b) Technical and Conforming Amendment.--The table of
sections for chapter 5 of title 11, United States Code, is
amended by inserting after the item relating to section 562
the following:
``563. Recovery of executive compensation.''.
SEC. 305. PREFERENTIAL COMPENSATION TRANSFER.
Section 547 of title 11, United States Code, is amended by
adding at the end the following:
``(j)(1) The trustee may avoid a transfer--
``(A) made--
``(i) to or for the benefit of an insider (including an
obligation incurred for the benefit of an insider under an
employment contract) made in anticipation of bankruptcy; or
``(ii) in anticipation of bankruptcy to a consultant who is
formerly an insider and
[[Page S2577]]
who is retained to provide services to an entity that becomes
a debtor (including an obligation under a contract to provide
services to such entity or to a debtor); and
``(B) made or incurred on or within 1 year before the
filing of the petition.
``(2) No provision of subsection (c) shall constitute a
defense against the recovery of a transfer described in
paragraph (1).
``(3) The trustee or a committee appointed pursuant to
section 1102 may commence an action to recover such transfer,
except that, if neither the trustee nor such committee
commences an action to recover such transfer by the time of
the commencement of a hearing on the confirmation of a plan
under section 1129, any party in interest may apply to the
court for authority to recover the claims for the benefit of
the estate. The costs of recovery shall be borne by the
estate.''.
TITLE IV--OTHER PROVISIONS
SEC. 401. UNION PROOF OF CLAIM.
Section 501(a) of title 11, United States Code, is amended
by inserting ``, including a labor organization,'' after ``A
creditor''.
SEC. 402. EXCEPTION FROM AUTOMATIC STAY.
Section 362(b) of title 11, United States Code, is
amended--
(1) in paragraph (27), by striking ``and'' at the end;
(2) in paragraph (28), by striking the period at the end
and inserting ``; and''; and
(3) by adding at the end the following:
``(29) of the commencement or continuation of a grievance,
arbitration, or similar dispute resolution proceeding
established by a collective bargaining agreement that was or
could have been commenced against the debtor before the
filing of a case under this title, or the payment or
enforcement of an award or settlement under such
proceeding.''.
______
By Mr. LEAHY (for himself, Mr. Franken, Ms. Warren, Mr.
Blumenthal, Mr. Wyden, and Mr. Markey):
S. 1158. A bill to ensure the privacy and security of sensitive
personal information, to prevent and mitigate identity theft, to
provide notice of security breaches involving sensitive personal
information, and to enhance law enforcement assistance and other
protections against security breaches, fraudulent access, and misuse of
personal information; to the Committee on the Judiciary.
Mr. LEAHY. Mr. President, today, I am introducing the Consumer
Privacy Protection Act of 2015. This comprehensive legislation will
help ensure that the corporations Americans entrust with their most
personal information are taking steps to keep it secure. Data breaches
continue to plague American businesses and compromise the privacy of
millions of consumers. At the same time, the amount of information we
share with corporations who are the target of these breaches is
growing. Corporations collect and store our social security numbers,
our bank account information, and our email addresses. They collect
information about our private health and medical conditions. They know
what routes we take to and from work and where we drop our kids off at
school. They can replicate our fingerprints. We even trust them with
private photographs that we store in the cloud.
Corporations benefit financially from our personal information, and
they should be obligated to take steps to keep it safe. Too often,
however, private information falls into the hands of those who would do
us harm and we are not even told. Last year, in what is commonly
referred to as the ``Year of the Data Breach,'' breaches at
corporations, including Home Depot, Neiman Marcus, and Sony Pictures,
as well as many others, demonstrated how vulnerable our corporations
are to hackers and cyber criminals. In some cases these breaches
exposed credit card data, social security numbers, or bank account
information that left millions at risk of financial fraud or identity
theft, and in other cases they exposed personal and private information
to the public that led to embarrassment and reputational harm.
The Consumer Privacy Protection Act I am introducing today seeks to
protect the vast amount of information that we now share with
corporations each and every day, and it builds and expands on data
security legislation that I have introduced every Congress since 2005.
In today's modern world, data security is no longer just about
protecting our identities and our bank accounts; it is about protecting
our privacy. Americans want to know when someone has had unauthorized
access to their emails, to their bank accounts, and to their private
family pictures, but they do not just want to be notified of yet
another data breach. Americans want to know that the corporations who
are profiting from their information are actually doing something to
prevent the next data breach. Consumers should not have to settle for
mere notice of data breaches. American consumers deserve protection.
This legislation would accomplish that.
The Consumer Privacy Protection Act requires that corporations meet
certain privacy and data security standards to keep information they
store about their customers safe, and requires that corporations notify
the customer in the event of a breach. This legislation protects broad
categories of data, including, social security numbers and other
government-issued identification numbers; financial account
information, including credit card numbers and bank accounts; online
usernames and passwords, including email names and passwords; unique
biometric data, including fingerprints; information about a person's
physical and mental health; information about geolocation; and access
to private digital photographs and videos.
I understand that not every breach can be prevented. Cyber criminals
are determined and constantly looking for new ways to pierce the most
sophisticated security systems. But just as we expect a bank to put a
lock on the front door and an alarm on the vault to protect its
customers' money, we expect corporations to take reasonable measures to
protect the personal information they collect from us. Unfortunately,
many of the corporations that profit from the very information that we
entrust them to protect, have woefully inadequate measures to secure
this information. For others, security is simply not a priority.
American consumers deserve better.
This legislation creates civil penalties for corporations that fail
to meet the required privacy and data security standards established in
the bill or fail to notify customers when a breach occurs. The
Department of Justice, the Federal Trade Commission, and the State
Attorneys General each have a role in enforcement. This legislation
also requires corporations to inform Federal law enforcement, such as
the Secret Service and the FBI, of all large data breaches, as well as
breaches that could impact the federal government. Such notification is
necessary to help law enforcement bring these cyber criminals to
justice and identify patterns that help protect against future attacks.
Many Americans understandably assume Federal law already protects
this sensitive information--common sense tells us that it should.
Unfortunately, the reality is that it does not. States provide a
patchwork of protection, and while some laws are strong, others are
not. For example, 47 States and the District of Columbia require some
form of data breach notification, but only 12 States have passed data
security requirements designed to prevent data breaches. My home state
of Vermont has a strong data breach notification law that has been in
effect since 2007.
In crafting Federal law, we must be careful not to override the
strong State laws that took years to accomplish with weaker Federal
protections, but we also need to ensure that all Americans, regardless
of where they live, have their privacy protected. To this end, the
Consumer Privacy Protection Act preempts State law relating to data
security and data breach notification only to the extent that the
protections under those laws are weaker than those provided for in this
bill. We must ensure that consumers do not lose privacy protections
they currently enjoy. Since this bill is modeled after those States
with the strongest consumer protections, however, I believe it will
improve protections for consumers in nearly every State.
I am joined today by Senators Franken, Warren, Blumenthal, Wyden, and
Markey in introducing this legislation. These Senators have long shared
my commitment to protecting consumer privacy. This legislation also has
the support of leading consumer privacy advocates, including: Center
for Democracy and Technology, Consumers Union, National Consumers
League, New America's Open Technology Institute, Consumer Federation of
America, and Privacy Rights Clearinghouse.
Millions of Americans who have had their personal information
compromised or stolen as a result of a data
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breach consider this issue to be of critical importance and a priority
for the Senate. Protecting privacy rights should be important to all of
us, regardless of party or ideology. I hope that all Senators will
support this measure to better protect Americans' privacy.
______
By Mr. GRASSLEY (for himself and Mr. Whitehouse):
S. 1169. A bill to reauthorize and improve the Juvenile Justice and
Delinquency Prevention Act of 1974, and for other purposes; to the
Committee on the Judiciary.
Mr. GRASSLEY. Mr. President, today I am introducing the Juvenile
Justice and Delinquency Prevention Reauthorization Act of 2015. Senator
Whitehouse is joining me in this effort.
This measure would improve our Nation's response to juvenile
offenders in the criminal justice system.
For the last 40 or so years, the Federal Government, through the
Juvenile Justice and Delinquency Prevention Act, or JJDPA, has provided
guidelines and resources to help States serve troubled adolescents.
This 1974 law provides juvenile justice dollars to States and sets
four core requirements for States that choose to accept these Federal
funds. The law also created the Office of Juvenile Justice and
Delinquency Prevention at the Justice Department.
A centerpiece of the current statute is its standards for the
treatment of at-risk youth who come into contact with our criminal
justice system. But these standards have not been updated since 2002,
and the law's authorization has expired.
Since Congress last extended the law more than a dozen years ago,
evidence has emerged that some of the JJDPA's provisions need to be
improved or strengthened to reflect the latest research on adolescent
development.
As chairman of the Senate Judiciary Committee, I have made this law's
renewal a priority. The bill I am introducing would extend the statute
for 5 years and update its provisions to reflect the latest research on
what works with troubled adolescents.
The bill also would continue Congress's commitment to help State and
local jurisdictions improve their juvenile justice systems through a
program of formula grants. At the same time, the bill would improve the
oversight and accountability of this grant program in several key ways.
Such accountability measures are vitally needed to ensure the grant
program's integrity.
The Senate Judiciary Committee heard testimony from whistleblowers
last week that the Justice Department is failing to hold participating
States accountable for meeting the JJDPA's four core requirements.
After I wrote several letters concerning these whistleblower
allegations, the Justice Department admitted to having a flawed
compliance monitoring policy in place since 1997. This policy allowed
States to receive JJDPA formula grants in violation of the law's
funding requirements.
Witnesses at last week's Senate Judiciary hearing recounted
violations of law, mismanagement, and waste of limited juvenile justice
grant funds, in addition to retaliation against whistleblowers.
This is an injustice not only to the taxpayers but also to the youth
who face inadequate juvenile justice systems. It is also an injustice
to the children who end up in the justice system as a result of poor
experience in the foster care system.
Shortcomings in the juvenile justice system will not be solved
overnight. But I look forward to taking the lead on legislation in the
114th Congress that will make measurable improvements.
In closing, numerous organizations have worked with us on the
development of this bill, and I thank them for their contributions. I
also thank Senator Whitehouse for his cosponsorship of the legislation,
and I urge my colleagues to join me in supporting its passage.
______
By Mrs. FEINSTEIN (for herself and Mr. Enzi):
S. 1170. A bill to amend title 39, United States Code, to extend the
authority of the United States Postal Service to issue a semipostal to
raise funds for breast cancer research, and for other purposes; to the
Committee on Homeland Security and Governmental Affairs.
Mrs. FEINSTEIN. Mr. President, I rise today to introduce legislation
to reauthorize the Breast Cancer Research Stamp for 4 more years.
Without Congressional action, this important and effective way of
raising additional funds for critical research will expire at the end
of this year. These stamps are sold for a little more than the cost of
first class postage, so customers can choose to donate in a simple and
easy way.
Since 1998, more than 986 million breast cancer research stamps have
been sold, raising over $80.4 million for breast cancer research. The
funds have gone to support breast cancer research at both the National
Institutes of Health, NIH, and the Department of Defense.
For example, the National Institutes of Health has used proceeds from
the Breast Cancer Research Stamp to fund the Maternal Pregnancy Factors
and Breast Cancer Risk Study. This study was designed to identify
possible connections between various conditions during pregnancy and
breast cancer risk. After comparing information from women who
delivered babies and were later diagnosed with breast cancer to women
who delivered babies and were not diagnosed with breast cancer,
researchers found that factors like preeclampsia or carrying twins may
increase cancer risk. Knowing these risk factors helps both doctors and
patients be vigilant about early screening.
Thanks to breakthroughs in cancer research, more and more breast
cancer patients are becoming survivors. Nearly all patients with breast
cancer caught in the early stages now survive. That is incredible, and
a testament to how important this research has been.
Though despite our great successes, the need for continued research
and improved screening and treatments remains high.
Breast cancer is the most commonly diagnosed cancer among women in
the U.S. and the second leading cause of cancer deaths. One in eight
women will be diagnosed, and more than 40,000 die from the disease each
year.
Though male breast cancer is less common, an estimated 2,350 men will
be diagnosed with breast cancer this year.
The Breast Cancer Research Stamp provides a simple, convenient way
for Americans to contribute toward this vitally important research. It
also provides a symbol of hope for those affected by this disease.
I thank Senator Enzi for joining me to support this bipartisan
legislation and urge my colleagues to join us and ensure the stamp
continues for another 4 years.
This bill is supported by organizations including: the American
Association of Cancer Research, AACR, American Cancer Society Cancer
Action Network, ACS CAN, American College of Obstetrics and Gynecology,
ACOG, American College of Surgeons, Are You Defense Advocacy, Breast
Cancer Fund, Breast Cancer Research Foundation, Center for Women Policy
Studies, Susan G. Komen, and the Tigerlily Foundation.
I look forward to working with my colleagues on this important issue.
____________________