(Senate - September 13, 2012)

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[Pages S6342-S6344]
From the Congressional Record Online through the Government Publishing Office []


      By Mr. KERRY:
  S. 3539. A bill to encourage the adoption and use of certified 
electronic health record technology by safety net providers and 
clinics; to the Committee on Finance.
  Mr. KERRY. Mr. President, the American Recovery and Reinvestment Act 
of 2009, ARRA, provided Medicare and Medicaid incentive payments to 
providers that adopt and meaningfully use electronic health records, 
EHRs, in their practices. While this program has helped thousands of 
providers, practices, and hospitals nationwide, many safety net 
providers and clinics have not been able to benefit from the Medicaid 
EHR incentives.
  Safety net providers serve as a critical entry point into the health 
care system, and provide essential health care services for millions of 
low-income, uninsured and underinsured individuals. Given that Medicaid 
eligibility levels are so low in many States, it is difficult for many 
safety net providers to meet the 30 percent Medicaid threshold required 
to participate in the Medicaid EHR incentive program even though their 
patients are predominately low-income. Congress addressed this problem 
only for practitioners working in federally-qualified health centers 
and rural health centers by creating a 30 percent ``needy'' threshold 
in ARRA for those providers. Unfortunately, ARRA fails to provide a 
similar standard for other providers serving low-income individuals.
  The Medicaid Information Technology to Enhance Community Health, 
MITECH, Act of 2012 seeks to eliminate the barriers that prevent safety 
net providers from qualifying from Medicaid EHR incentives. 
Specifically, it would expand eligibility for meaningful use incentives 
to providers that practice predominantly in a qualified safety net 
clinic, QSNC. The act defines a QSNC as a clinic or network of clinics 
that is operated by a private non-profit or public entity and that has 
at least 30 percent of its patient volume attributable to needy 
individuals. The act also directs the Secretary of Health and Human 
Services to develop a methodology to allow these clinics to be eligible 
for meaningful use payments as an entity, similar to the current 
process that exists for hospitals.
  I would like to thank the 13 national organizations who have been 
integral to the development of this legislation and who have endorsed 
it today, including the Association of State and Territorial Health 
Officials, the HIV Medicine Association, Mental Health America, the 
National Association of Public Hospitals, the National Family Planning 
and Reproductive Health Association, and the Trust for America's 
  The MITECH Act will allow safety net clinics to better communicate 
with patients about necessary screenings, help ensure compliance with 
prescription drugs, and will strengthen the safety net which provides 
essential care to so many Americans. It is my hope that we can move 
forward with this bill in a bipartisan manner. I ask all of my 
colleagues to support this important legislation.
      By Mr. GRASSLEY (for himself and Mr. Franken):
  S. 3545. A bill to amend title 11 of the United States Code to 
clarify the rule allowing discharge as a nonpriority claim of 
governmental claims arising from the disposition of farm assets under 
chapter 12 bankruptcies; to the Committee on Finance.
  Mr. GRASSLEY. Mr. President, I rise today to introduce, along with 
Senator Franken, the Family Farmer Bankruptcy Tax Clarification Act of 
2012. This bill addresses the recent United States Supreme Court case 
Hall v. United States. In a 5-4 decision, the Supreme Court ruled the 
provision I inserted into the 2005 Bankruptcy Abuse Prevention and 
Consumer Protection Act did not accomplish what we intended. The Family 
Farmer Bankruptcy Tax Clarification Act of 2012 corrects this and 
clarifies that bankrupt family farmers reorganizing their debts are 
able to treat capital gains taxes owed to a governmental unit, arising 
from the sale of farm assets during a bankruptcy, as general unsecured 
claims. This bill will remove the Internal Revenue Service's veto power 
over a bankruptcy reorganization plan's confirmation, giving the family 
farmer a chance to reorganize successfully.
  In 1986 Congress enacted Chapter 12 of the Bankruptcy Code to provide 
a specialized bankruptcy process for family farmers. In 2005 Chapter 12 
was made permanent. Between 1986 and 2005 we learned what aspects 
worked and did not work for family farmers reorganizing in bankruptcy. 
One problematic area was where a family farmer needed to sell assets in 
order to generate cash for the reorganization. Specifically, a family 
farmer would have to sell portions of the farm to generate cash to fund 
a reorganization plan so that the creditors could receive payment. 
Unfortunately, in situations like this, the family farmer is selling 
land that has been owned for a very long time, with a very low cost 
basis. Thus, when the land is sold, the family farmer is hit with a 
substantial capital gains tax, which is owed to the Internal Revenue 
  Under the Bankruptcy Code, taxes owed to the Internal Revenue Service 
receive priority treatment. Holders of priority claims must receive 
payment in full, unless the claim holder agrees to be treated 
differently. This creates problems for the family farmer who needs the 
cash to pay creditors to reorganize. However, since the Internal 
Revenue Service has the ability to require full payment, they hold veto 
power over a plan's confirmation, which means in many instances the 
plan will not be confirmed. This does not make sense if the goal is to 
give the family farmer a fresh start. Thus, in 2005 Congress said that 
in these limited situations, the taxes owed to the Internal Revenue 
Service could be treated as general, unsecured debt. This removed the 
government's veto power over plan confirmation and paved the way for 
family farmers to reorganize successfully.
  However, in Hall v. United States, the Supreme Court ruled that 
despite Congress's express goal of helping family farmers, the language 
inserted into the Bankruptcy Code in 2005 conflicted with the Tax Code. 
The Hall case was one of statutory interpretation. There is no question 
what Congress was trying to do; rather, did Congress use the

[[Page S6343]]

correct language? My goal, along with others at the time, was to 
relieve family farmers from having their reorganization plans fail 
because of huge tax liabilities to the federal government. Justice 
Breyer noted this in the dissent: ``Congress was concerned about the 
effect on the farmer of collecting capital gains tax debts that arose 
during (and were connected with) the Chapter 12 proceedings themselves. 
. . . The majority does not deny the importance of Congress' objective. 
Rather, it feels compelled to hold that Congress put the Amendment in 
the wrong place.'' Hall v. United States, 132 S.Ct. 1882, 1897, 2012, 
Breyer, J., dissenting, internal citations and quotations omitted.
  As a result of the Hall case, family farmers facing bankruptcy now 
find themselves caught in an unfortunate situation. The rules have 
changed and must be corrected in order to provide certainty and clarity 
in the law. The Family Farmer Bankruptcy Tax Clarification Act of 2012 
will provide the clarity needed to help family farmers reorganize in 
  This bill strikes the current language in the Bankruptcy Code, which 
the Supreme Court said does not work, 11 U.S.C. Sec. 1222(a)(2)(A) and 
inserts a new 11 U.S.C. Sec. 1222(a)(5). The new provision transforms 
all government claims arising as a result of the sale or transfer of 
post-petition farm assets into unsecured, non-priority claims, 
notwithstanding any language in the Internal Revenue Code to the 
contrary. The bill also provides new sections for treatment of these 
claims during the bankruptcy process. The bill recognizes that some 
asset sales may occur post-confirmation. As a result, we also provide a 
mechanism for plan modification as a result of these sales, if used for 
the specified purpose of reorganization, to assist in reorganization. 
Finally, we make a technical change to 11 U.S.C. Sec. 1228(a), which 
practitioners and commentators have long argued is needed. This 
technical change is within the limited scope of this clarification 
bill, as it provides greater certainty and clarity that has troubled 
courts and practitioners alike.
  I recognize the end of this session of Congress is near and the time 
to do something is short. However, we have been fine tuning this 
legislation to ensure it properly corrects the Hall case. We will seek 
to do what we can during the remaining Congressional calendar to fix 
the problem this year. Should we run out of time, then we will maintain 
our focus on this problem into the next year. The Family Farmer 
Bankruptcy Tax Clarification Act of 2012 ensures that what Congress 
sought to do in 2005 actually occurs. In the wake of the Hall decision, 
clarification is needed to help ensure family farmers facing bankruptcy 
will have a chance to reorganize successfully.
  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. 3545

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,


       This Act may be cited as the ``Family Farmer Bankruptcy Tax 
     Clarification Act of 2012''.


       (a) In General.--Section 1222(a) of title 11, United States 
     Code, is amended--
       (1) in paragraph (2), by striking ``unless--'' and all that 
     follows through ``the holder'' and inserting ``unless the 
       (2) in paragraph (3), by striking ``and'' at the end;
       (3) in paragraph (4), by striking the period at the end and 
     inserting ``; and''; and
       (4) by adding at the end the following:
       ``(5) notwithstanding the application of the rules under 
     subchapter V of chapter 1 of the Internal Revenue Code of 
     1986, and without regard to whether the claim arose before or 
     after the filing of the petition, provide for the treatment 
     and payment of any unsecured claim owed to a governmental 
     unit by the debtor or the estate that arises as a result of 
     the sale, transfer, exchange, or other disposition of any 
     farm asset used in the debtor's farming operation as an 
     unsecured claim that is not entitled to priority under 
     section 507.''.
       (b) Postpetition Claims Relating to Sale, Transfer, 
     Exchange, or Other Disposition of Farm Assets.--
       (1) In general.--Section 1222 of title 11, United States 
     Code, is amended by adding at the end the following:
       ``(e)(1) A governmental unit may file a proof of claim for 
     a claim described in subsection (a)(5) that arises after the 
     date on which the petition is filed.
       ``(2)(A) Except as provided in subparagraph (B), if a 
     governmental unit has not filed a proof of claim under 
     paragraph (1) for a claim described in subsection (a)(5), 
     after the date that is 120 days after the date on which the 
     claim arises, the trustee or the debtor may file proof of 
     such claim.
       ``(B)(i) For a claim described in subsection (a)(5) that is 
     a tax for which a return is due, if the debtor or trustee has 
     provided notice as described in clause (ii) and the 
     governmental unit has not filed a proof of claim under 
     paragraph (1), after the date that is 180 days after the date 
     on which the debtor or trustee provides the notice, the 
     debtor or the trustee may file proof of such claim.
       ``(ii) Notice as described in this clause is notice by the 
     debtor or the trustee--
       ``(I) indicating the intent to file the applicable claim;
       ``(II) setting forth the amount of the claim;
       ``(III) that includes a copy of the filed return relating 
     to the claim; and
       ``(IV) that is delivered to the governmental unit at the 
     address designated for requests made under section 
       ``(3) A claim filed under paragraph (1) or (2) shall be 
     allowed or disallowed under section 502, but shall be 
     determined as of the date such claim arises, and shall be 
     allowed under section 502(a), (b), or (c) of this title, or 
     disallowed under section 502(d) or 502(e) of this title the 
     same as if such claim had arisen before the date of the 
     filing of the petition.''.
       (2) Modification of plan after confirmation.--Section 
     1229(a) of title 11, United States Code, is amended--
       (A) in paragraph (2), by striking ``or'' at the end;
       (B) in paragraph (3), by striking the period at the end and 
     inserting ``; or''; and
       (C) by adding at the end the following:
       ``(4) provide for the payment of a claim described in 
     section 1222(a)(5) that arose after the date on which the 
     petition is filed.''.
       (c) Technical Correction.--Section 1228(a) of title 11, 
     United States Code, is amended in the matter preceding 
     paragraph (1)--
       (1) by inserting a comma after ``all debts provided for by 
     the plan''; and
       (2) by inserting a comma after ``allowed under section 503 
     of this title''.
       (d) Effective Date.--The amendments made by this section 
     shall apply to any bankruptcy case that--
       (1) is pending on the date of enactment of this Act and 
     relating to which an order of discharge under section 1228 of 
     title 11, United States Code, has not been entered; or
       (2) commences on or after the date of enactment of this 
      By Mr. KERRY (for himself, Mr. Lieberman, Mr. Sanders, and Mr. 
  S. 3547. A bill to amend the Lacey Act Amendments of 1981 to clarify 
provisions enacted by the Captive Wildlife Safety Act, to further the 
conservation of certain wildlife species, and for other purposes; to 
the Committee on Environment and Public Works.
  Mr. KERRY. Mr. President, today I am introducing the Big Cats and 
Public Safety Protection Act to protect public safety, improve animal 
welfare, assist international big cat conservation, and to help clarify 
the existing patchwork of current state regulation. This is a companion 
for legislation previously introduced in the House by Representatives 
Howard McKeon and Loretta Sanchez. Amazingly, it is unknown even how 
many big cats such as lions, cougars, leopards, and cheetahs live or 
are bred in private possession in the United States. This bill would 
prevent the private possession and breeding of big cats, while still 
allowing properly accredited zoos and wildlife sanctuaries to continue 
to operate in the critical conservation and animal welfare roles that 
they occupy today.
  Why is this legislation so important? First, this is a public safety 
issue, which was made tragically clear almost a year ago in Zanesville, 
Ohio, when the owner of a backyard zoo opened the cages of his tigers, 
leopards, lions, wolves, bears, and monkeys before killing himself. 
Wild animals were literally roaming the streets where children were 
playing and people were going about their daily lives. Sadly, the 
situation gave police no choice but to shoot and kill almost 50 
animals, including 38 big cats, before they could enter populated 
areas. Public safety officials were, understandably, not trained or 
equipped to deal with large exotic animals especially 300 pound tigers. 
This tragedy should serve as a chilling wakeup call about our lack of 
safeguards around large, wild species being kept as pets. In the past 
11 years in the United States, incidents involving captive big cats 
have resulted in the deaths of 21 people, 16 adults and 5 children. 
During the same time period,

[[Page S6344]]

there have been 246 maulings, 253 escapes, 143 big cat deaths, and 128 
  This is also an animal welfare issue. Research shows that the captive 
big cat community is characterized by a systemic culture of inhumane 
mistreatment of the animals. One major reason for this is that once 
individual big cats have outgrown the infancy stage when they are most 
profitable, they are often warehoused in terrible conditions. Because 
private ownership is allowed to continue, many sanctuaries for 
mistreated or unwanted big cats are at or nearing capacity and lack 
financial reserves to provide greater assistance. The recent closure of 
a major sanctuary in Texas that had over 50 big cats has made matters 
  Third, this is a matter of conservation. Tigers, for example, are 
extremely endangered by poaching and trade, and illegal tiger products 
continue to be smuggled into the U.S. from foreign countries. One of 
the biggest threats to wild tigers is the demand for tiger parts and 
products, and leakage of captive tiger parts and products into the 
illegal market continues to encourage demand, perpetuating poaching and 
threatening remaining wild populations.
  Finally, this bill will address the current patchwork state 
regulation. There are still two states that have no regulations or 
permits at all regarding private ownership of exotic animals including 
big cats. Seven other States have little to no regulations of private 
ownership of exotic animals including big cats. Another 14 states allow 
big cat possession only with a state permit, and 27 states and the 
District of Columbia have enacted full bans on private ownership of big 
cats, though all of those exempt federally-licensed exhibitors. Given 
the risks I have already outlined, this kind of regulatory patchwork is 
simply unacceptable and could be dangerous.
  I believe that the Big Cats and Public Safety Protection Act will 
help ensure that lions, tigers, and other potentially dangerous big 
cats do not threaten public safety, harm global conservation efforts, 
or end up living in squalid conditions where they are subject to 
mistreatment and cruelty.
  A number of organizations are supportive of this bill, including the 
International Fund for Animal Welfare, the Humane Society of the United 
States, Born Free USA, Big Cat Rescue, the Animal Welfare Institute, 
and the World Wildlife Foundation.
  I would like to recognize Senators Lieberman, Sanders, and Blumenthal 
as original cosponsors of this bill. I look forward to continued 
progress in enhancing the protection and conservation of wild big cats 
and in increasing public safety from the dangers of these untamed 
      By Mr. AKAKA:
  S. 3548. A bill to clarify certain provisions of the Native American 
Veterans Memorial Establishment Act of 1994; to the Committee on Indian 
  Mr. AKAKA. Mr. President, as Chairman of the Committee on Indian 
Affairs, I am introducing legislation to make technical corrections to 
the National Native American Veterans' Memorial Act of 1994.
  The 1994 Act honors the profound contributions of Native Veterans by 
authorizing the construction of a National Native American Veterans' 
Memorial. Unfortunately, technical issues with the law have made it 
difficult to move forward with the Memorial. The bill I am introducing 
today seeks to alleviate those obstacles.
  My legislation would make technical corrections in order to allow the 
National Museum of American Indian to join the National Congress of 
American Indians in the fundraising efforts for the Memorial. In 
addition, my bill would allow the Memorial to be constructed on the 
property provided for by the National Museum of American Indian Act.
  Per capita, American Indians, Alaska Natives, and Native Hawaiians 
serve at a higher rate in the Armed Forces than any other group of 
Americans. Native peoples have served in all of the Nation's wars since 
the Revolutionary War. A memorial in their honor is well-deserved and 
long overdue.
  My non-controversial, no cost, technical amendments bill will make it 
easier to construct the authorized memorial to honor our Native