David Vitter

Mr. VITTER

Mr. VITTER. Mr. President, I rise today to discuss a really outrageous abuse of power on the part of Members of this body, Members of the House, Washington officials in general. While imposing ObamaCare on everyone else, officials in Washington have largely exempted themselves from ObamaCare's most inconvenient aspects through yet another illegal Obama Executive action that created the Washington exemption from ObamaCare. Unfortunately, this is not a new practice on the part of the Washington elite. Washington lawmakers often create or support exemptions for themselves from the laws they pass on everyone else. This undemocratic practice dates back to the 19th century at least--the Civil Service Act of 1883; the Fair Labor Standards Act of 1938, coming into the 20th century; the Freedom of Information Act of 1966. The list goes on and on. As the late Representative Henry Hyde is famously quoted as saying many years ago, ``Congress would exempt itself from the law of gravity if it could.'' That is sadly true, and this practice must end. I have always believed the first rule of an American democracy should be that whatever Washington passes on America, it should have to live under itself--no special exemptions, no special subsidies, no special deals, no special treatment. This rule is important for two reasons. The first reason is basic fairness. It is simply not fair for a select group of elites to live by a different and more beneficial set of rules than everyone else. The second reason, perhaps even more importantly, is a key practical reason; that is, when you make the chef eat his own cooking, it almost always gets better and often in a hurry. Congress can be an effective, responsive, truly representative legislative body only when it lives under the same laws it imposes on the rest of the country. Passing ObamaCare, the Patient Protection and Affordable Care Act, was a huge, complicated undertaking on the part of its advocates. Related to that, it was certainly telling when then-Speaker of the House Nancy Pelosi notoriously declared: ``We have to pass the bill so we can find out what is in it.'' After passing the bill, when Members of Congress realized what was in it for them, they scurried to figure out a scheme that would protect their own elite health care, including taxpayer-funded subsidies that don't exist in the ObamaCare statute at all, much less for anyone else. Of course, there were even more serious problems in the ObamaCare statute for all Americans. When President Obama signed ObamaCare into law in March of 2010, it consisted of poorly written language that imposed drastic and unwanted health insurance changes on countless Americans. Despite the President's promise that Americans could keep their existing insurance, the law said otherwise. The cost of complying or failing to comply with ObamaCare belied the President's false assurances. In the following months, insurers and employers and Americans realized this through the cancellation or nonrenewals of insurance plans for millions of Americans. Ultimately, millions of American workers faced burdens, including losing their individual and employer- provided coverage, being forced into alternatives that involved paying higher premiums with unwanted or useless new coverage, and having to change doctors and health care providers against their will. As I said earlier, simultaneous with all of this, Members of Congress started to realize what was in ObamaCare for them. When they passed ObamaCare, they had revoked Congress's own generous health care coverage and the monthly employer government premium contributions that went with it. Prior to ObamaCare, Members of Congress and their staff received health insurance coverage through the Federal Employees Health Benefits Program, or the FEHBP, run by the Office of Personnel Management. It had served as the health care network for Federal workers since 1959. In 2013 alone, FEHBP represented the country's largest employer- sponsored health insurance program, with costs approaching $32.4 billion in premiums for about 8 million enrollees. One of the benefits of FEHBP was the wide variety of health insurance policies that provided coverage for individuals and their family members. Even more important was that FEHBP provided a taxpayer-funded government contribution to each enrollee's monthly premium. In 2013 alone, the maximum FEHBP averaged $413 a month or almost $5,000 per year for individual coverage, and $920 a month or over $10,000 a year for family coverage. An added bonus was that these taxpayer-funded contributions counted as tax-free income to employees. This is certainly a great benefit for Federal employees, and I absolutely believe they should be treated fairly in return for the public service they provide. I also believe Congress has to follow the law as written, and that is when we get to ObamaCare. ObamaCare very clearly and specifically changed all of this. It mandated that Members of Congress and congressional staff give up that FEHBP coverage beginning January 1, 2014, and join an ObamaCare health insurance exchange. The relevant section of the act is crystal clear. It says: ``Notwithstanding any other provisions of law, after the effective date of this subtitle, the only health plans that the Federal Government may make available to Members of Congress and congressional staff with respect to their services as a Member of Congress or congressional staff shall be health plans that are--(I) created under this Act (or an amendment made by this Act); or (II) offered through an Exchange established under this Act (or an amendment made by this Act).'' It changed our entire coverage, clearly, unequivocally. The word ``notwithstanding'' means ``in spite of,'' sweeping aside any other provision of law. It definitively dictates that section 1312(d)(3)(D) takes precedence over any other conflicting provision in the bill or anywhere in the code. Some folks may not like that, but that is the law. That became the law, clearly and unequivocally, when ObamaCare was passed into law. It didn't have to be exactly that way. For instance, Senator Chuck Grassley introduced an amendment during debate on the ObamaCare bill that would have changed this final language regarding how ObamaCare impacts Congress. The Grassley amendment clearly described which Federal employees were subject to the law and must enroll on the new exchanges. That wasn't different. It included the President, the Vice President, each Member of Congress, each political appointee, and each congressional employee, but it also permitted Federal employees to continue receiving the employer-government contributions like those received under FEHBP. However, the Senate never voted on that language, on that Grassley amendment, before ObamaCare became law. Even more telling, even more significant, after ObamaCare became law, Senator Grassley again offered that language. He got a vote then, and that language was defeated in the Senate 56 to 43. The final Obama language very clearly states Members of Congress must purchase their health insurance on a State-based or Federal exchange, and it has absolutely no provision for a rich, taxpayer-funded subsidy. That is why I followed that law. I personally signed up for health insurance on Louisiana's individual health care exchange. It definitely costs me more money, and it definitely costs my family more money, but that is what the law says we have to do. As millions of Americans face the possibility of losing the health insurance they had that they liked and wanted to keep, as I mentioned a few minutes ago, Members of Congress faced increased expenses on their own personal new health insurance plans. Which of these two problems do you think Congress scrambled to solve? You guessed it--their own; not all of America's problems, the Washington elite's problems. They made a determined effort to find a way to protect themselves, and sadly this was a fully bipartisan, bicameral effort that ultimately led to Washington's exemption from ObamaCare. With the January 1, 2014, deadline quickly approaching for Congress to give up its FEHBP benefits, congressional leadership scrambled for a solution. Press reports at the time indicated that top lawmakers initiated confidential talks with Obama administration officials to carve out a suitable exemption from ObamaCare. After extended closed-door deliberations, a proposal emerged that involved using OPM, the Office of Personnel Management, to promulgate a special agency rule that only applied to Congress. During the rulemaking process, OPM admitted that ``many commenters expressed their view that a Government contribution is antithetical to the intent of Section 1312 of the Affordable Care Act, which they interpret to require Members of Congress and congressional staff to purchase the same health insurance available to private citizens on the Exchanges. Commenters asserted that Members of Congress and congressional staff should be subject to the same requirements as citizens purchasing insurance on the Exchanges, including individual responsibility for premiums and income restrictions for premium assistance.'' That was in Politico, and I certainly agree with the sentiment. That is what ObamaCare and the statute said. Members of Congress should absolutely live under the laws they pass. Unfortunately, though, under this cleverly hatched scheme, OPM disregarded these comments and moved forward with its insider rule. Through illegal executive action--an executive action contrary to the ObamaCare statute--the final OPM rule in effect declared Congress to be a small business so that Members of Congress and staff could purchase plans on DC's small business exchange explicitly reserved under the ObamaCare statute for small businesses of 50 employees or fewer. This rule also permitted the Washington insiders to receive a generous employer contribution toward their premiums that is not noted anywhere in the ObamaCare statute. OPM's final rule did two things: First, it allowed all Members of Congress and staff to purchase insurance on this DC small business exchange created for small businesses. It was clearly created for businesses with 50 employees or fewer. Second, it made sure that the small employer contribution would be equal to Congress's previously acquired FEHBP contributions. With OPM's final rule, Members of Congress and congressional staff would not have to pay any extra out-of-pocket expenses like so many millions on the ObamaCare exchanges had to pay. I guess this is great news for Congress, but there are major problems with this final rule that make it just flatout wrong and flatout illegal and contrary to the ObamaCare statute. The first thing that makes it flatout wrong is that it was specific to Members of Congress and congressional staff--a solution for the Washington insiders when millions of Americans continued to suffer the serious negative consequences of ObamaCare. Second, it suggested it pushed Congress into this DC small business exchange when Congress is obviously not a small business and this exchange was created for the benefit of small businesses. Third, the relevant statute in ObamaCare says nothing about any employer subsidy for members of staff, no taxpayer-funded subsidy, and yet OPM's rule created this out of thin air. A fourth problem is one of the most egregious examples of how big a scam this rule is. Members of Congress actually have the option to designate any or all of their staff as ``not official,'' thus allowing the staff to stay on their old FEHBP plans to avoid the exchanges altogether, which was the intent of that ObamaCare provision. This completely frustrates the crystal-clear language of ObamaCare for those staff members in a blatant way. Again, that problem is egregious and just underscores how big a scam this rule is. Those staff members use official taxpayer-funded resources. They get paychecks funded by the taxpayer. It is official. They use official letterhead, official everything, official resources, but somehow they are not official for purposes of this ObamaCare provision. That is outrageous. In 2014, when all of this went into effect, I served as the ranking member on the Senate EPW Committee. I certainly considered all of my staff, including committee staff, to be official government employees. It is obvious they were. I made sure they were all designated as official and had to go to the exchanges. When I took over as chairman of the Small Business Committee last year, I again absolutely did the right thing and designated my committee staff, as well as my personal staff, as official. They clearly are official. Let's go back to the OPM rule. In order for U.S. House and Senate Members and staff to enroll in this DC small business exchange, the Senate and the House of Representatives had to submit online applications. In September 2014, Judicial Watch, a government watchdog organization, asked for and eventually received several documents from the DC Health Benefits Exchange Authority in response to their Freedom of Information Act request related to Congress receiving benefits under this DC small business exchange. The documents included nine pages of applications completed and submitted online for U.S. House and Senate Members and for House staff to enroll on that DC small business exchange. If the House and Senate completed the online applications with truthful information, they would have been automatically rejected on the computer by the DC exchange software system based on employee size and other prohibitive factors. What happened? Well, as you can see, what was submitted were blatantly false applications--applications with completely and blatantly false information. We have an example from the U.S. Senate. First, all of the applications state that each legislative body--the House on the one hand and the Senate on the other--employed 45 full- time equivalent employees during the previous calendar year. In order to get on this small business exchange, they were asked how many employees--the U.S. House of Representatives, 45; the U.S. Senate, 45. Here is the number right here on the application. It is blatantly, obviously, and laughably false. Second, all three applications include blatantly false employee names and birth dates that were asked to be listed. Third, they falsified the category of the U.S. House of Representatives and the U.S. Senate. Both Federal legislative bodies were entitled as State or local government entities to squeeze onto this small business exchange. It should be noted that the applications submitted on behalf of the House on the one hand and the Senate on the other contain these three identical misrepresentations. These identical false statements are evidence of a carefully coordinated scheme. The two forms allege exactly the same erroneous number of full-time equivalent employees-- 45--just under the maximum allowed of 50. They contain the exact same false employee name and birth date information. They use exactly the same false employer classification, State and local government. The coordinated effort shown on both applications likely originated from the same source who either personally completed them or gave instructions to others on how to complete them. Knowingly filing false information on a government document is illegal. No legitimate private business would be able to get away with this--what Congress did to gain access to this DC small business exchange--without facing serious penalties and serious adverse consequences. Maybe even more concerning than the information we see on these applications is the information we don't see because much of the documents Judicial Watch obtained--much of the information was redacted and blacked out. Redactions are a tool generally used to protect an individual's personal or confidential information. In this case, the redactions intentionally established additional obstacles for those seeking transparency and accountability regarding Congress's action. In other words, they just hide exactly who was responsible for submitting these blatantly false applications. The redacted applications are really a startling illustration of the extent to which Congress is willing to go in order to protect itself and its special perks and privileges. As chairman of the Small Business Committee, I am authorized to investigate ``all problems of American small business enterprises.'' For a large entity like Congress to improperly take advantage of systems in place that are meant for small businesses is really doubly insulting and within our jurisdiction. On February 3, 2015, I sent a letter to officials at the House of Representatives, the Senate, and the DC exchange authority requesting information that included copies of the nine pages of the applications we talked about unredacted. We wanted all the information with nothing blacked out. The Chief Administrative Officer for the House of Representatives declined to respond based on the claim that the Senate Small Business Committee lacked jurisdiction to investigate ``internal operations of the House of Representatives.'' The clerk of the Senate Dispersing Office recited a background of the OPM rule and nothing more. In other words, they just stonewalled. Finally, the DC Health Benefits Exchange Authority refused to comply on the grounds that a pending lawsuit filed by Judicial Watch prevented it from doing so. In March of 2015, officials from that authority agreed to meet with my committee staff to discuss producing the nine pages of applications in their original, unredacted form, but at the meeting, these officials flatly refused to produce this, citing new privacy concerns. Followup correspondence with all three entities again yielded nonresponses--basically more stonewalling. During this time, I also sent three letters to then-OPM Director Katherine Archuleta requesting all communications between OPM and Members of Congress or officials at the White House regarding the final OPM rule. OPM failed to provide any of that information. The only viable option I could see to move forward with my investigation was compulsory means through the issuance of a subpoena to the DC Health Benefits Exchange Authority to get the nine pages of applications in their original form, unredacted, without protecting those responsible. In order to issue a subpoena, committee rules dictated that as chairman I would need either the consent of the committee's ranking Democratic member or the approval of a majority of the committee members, which would be 10 members. On April 23, 2015, I convened a committee business meeting that included deliberation and a vote on issuing that subpoena. As it turns out, Members, regardless of party, are willing to go to great lengths to protect their perks and taxpayer-funded subsidies, because the motion to issue the subpoena failed by a vote of 5 to 14, with five Republican Members--just the necessary number to stop the subpoena--joining all of the committee's Democrats to block the subpoena. Now, it is no surprise to anybody who knows me that we didn't stop there, that the committee investigation and the work didn't stop there. In February of this year, when the Senate Committee on Homeland Security and Governmental Affairs conducted a hearing on the President's nomination of Beth Cobert to become the permanent OPM Director, I again became engaged over this issue. In my numerous attempts to engage OPM in an honest conversation about how their final rule came to be, I never received any meaningful response. So I followed up with a letter to Ms. Cobert, who is serving as OPM's Acting Director. While her office did provide some useful information, her response largely failed to answer my questions. It is interesting that while all of this was going on, at the same time, everyone employed by Congress received a form from the IRS. It is called form 1095-C. Excuse me. It is an IRS form. It comes, in the case of the Senate employees, from the Senate Disbursing Office, and it confirms the obvious: that people who work in the Senate--Members, staff--and people who work in the House--Members, staff--are employed by a large employer. As the Presiding Officer may know, the Internal Revenue Code requires ``applicable large employers,'' the definition of which is 50 or more full-time employees, to report information of offers of health coverage and enrollment in health coverage for their employees. So it demands this form, and everybody in the Senate and everybody in the House got this form. Now, this IRS form, sent to all Members and all staff, shows that everything we are talking about--the lie that enabled the Senate and the House to get on the DC small business exchange--was just that. It was a lie. It contradicts everything that was represented in that category. The Senate Disbursing Office submitted an application that said the Senate has 45 total employees to the DC small business exchange, but the same Senate Disbursing Office distributed an IRS form that labels the Senate a large employer with over 50 employees. So what is it? Well, it seems pretty clear. The IRS form is accurate. Obviously, the Senate and the House are large employers. The OPM rule allows the Senate to fraudulently claim to be a small business as part of this scam--Washington exemption from ObamaCare. OPM promulgated a rule that allows the Senate to purchase health insurance on a small business exchange. The law States that only small employers may purchase that on the exchange. The OPM rule just makes a mockery of the law and does this to establish that Washington exemption from ObamaCare. This is a lot to take in and certainly very confusing. That is why I asked the head of the IRS and the acting head of OPM to clarify this. I wrote to IRS Commissioner Koskinen in February: ``Can you confirm that the United States Congress''--the House and the Senate--``is a large employer?'' Apparently, my pretty simple question didn't have a simple answer. The IRS responded that they had forwarded my question up the chain of command to the Department of the Treasury, and I still await Treasury's answer from February. I also asked OPM Acting Director Cobert: ``Can you confirm the position of the OPM as to whether Congress is a small business . . . or is it a `Large Employer' as indicated by the 1095C forms sent to Congressional employees?'' OPM's response was this: ``OPM does not take the position that Congress is a small employer, nor has OPM taken such a position in the past. Nothing in the proposed or final rule indicates that Congress shall be considered a small employer. . . . '' Well, why the heck is Congress in a small business exchange limited under statute to 50 or fewer employees? It is then when I decided to place a hold on Ms. Cobert's nomination to become permanent OPM Director, and I continue to block that nomination because of OPM and her clear role in this flagrant abuse of power regarding Washington's exemption from ObamaCare. Her failure to revoke the illegal rule as well as her failure to disclose relevant information about the rulemaking process allows OPM's illegal rule to remain in place. This, in turn, allows Congress to continue to purchase health insurance on DC's small business exchange and to continue to receive a generous and illegal employer- contribution, taxpayer-funded subsidy. My objective today remains what it has been for the last several years, and that is to flat out end Washington's exemption from ObamaCare. So I won't lift my hold on this nomination until we do that, until my colleagues have joined me in following the law, until OPM overturns its illegal rule--something of that sort. Yes, it is more expensive to purchase my health insurance on the exchange in Louisiana, but that is what the law dictates. I don't believe this body will find the overall fix to ObamaCare until it truly has to live under ObamaCare, and that starts with no special Washington exemption from ObamaCare--no special deal, special rule, or special subsidy for Congress. I don't particularly care if we fix this administratively or legislatively. I have certainly offered several legislative solutions in the past, but my colleagues seem to be intent on protecting their special perk and status. Now, if it is not for themselves, many say at least it is for their valued staff. On that point, I am willing to compromise. Every time a Member of Congress objects to my past proposals, they always talk about staff. We all value staff. I get that. Certainly, I agree with that sentiment. So I am willing to take staff out of it. That is a distraction to this debate. I am going to offer Members to take ownership and eat their own cooking--live by the ObamaCare statute, be treated as millions of other Americans are, and go to the ObamaCare exchanges with no special exemption, no special subsidy, no special deal, no special rule. We could start today and, by holding Congress accountable, accept that important victory and, certainly, release my hold on Ms. Cobert's nomination. With that end in mind, I have here a new bill focused on Members of Congress, the President, and the Vice President to end their special exemption from ObamaCare, and I will be formally introducing this legislation tonight. It is simply wrong for Washington insiders to carve out loopholes for themselves in order to avoid living under the laws Congress passes for the rest of America. This new bill, again, will cover Members of Congress, the President, the Vice President--not staff. We should do that as a minimum first step to live under the laws Congress passes on the rest of the country and live under the ObamaCare statute as it exists today. Now is the time for action. So I urge my colleagues to join me in taking this first step toward restoring the public's confidence in this body and the impartial rule of law. It is time to end the scam that is Washington's exemption from ObamaCare.

Mr. VITTER

Mr. VITTER. Thank you, Mr. President. I yield the floor.

Mr. VITTER

Mr. VITTER. Mr. President, it is no secret that, among the many pressing issues facing our Nation, updating our Nation's crumbling infrastructure is one of the most important. Roads and bridges are quite literally the foundation of our daily lives, and those of us in Louisiana certainly recognize the importance of upgrading and maintaining our highways and levees. One small business based out of Jennings, LA, has been working to improve our State's infrastructure, and I would like to recognize JESCO as Small Business of the Week for their important progress supporting some of Louisiana's biggest infrastructure and environmental projects. In 1994, a group of Louisiana-based professional engineers and scientists established JESCO to provide engineering, construction, disaster preparation and response, and environmental services to local and State governments along the Gulf Coast, as well as Federal agencies. Lead by Ms. Alvinette Teal, an experienced geologist and graduate of Louisiana State University, JESCO is a federally certified, woman-owned small business. Over the last 22 years, JESCO has worked on some of Louisiana's vitally important water infrastructure projects, including necessary coastal restoration efforts. Louisiana's coastline play an important role in protecting our coastal communities from natural disasters, and coastal restoration is among our State's highest priorities. The engineers and scientists at JESCO have also worked on projects testing the salinity for levee construction materials, which in Louisiana is vital to building levees that will protect families, businesses, and homes during a storm. Additionally, JESCO has been contracted for soil and ground water remediation efforts in Breaux Bridge, LA, and hurricane and disaster management for Hurricane Ike. Small businesses like JECSO are leading the way to improve our infrastructure and better protect our families, homes, and businesses. Congratulations to JESCO of Jennings, LA, for being selected as this week's Small Business of the Week, and I look forward to your continued growth and success.

Mr. VITTER

Mr. VITTER. Mr. President, Louisiana is blessed to have an abundance of natural resources, and as a result, many folks work in the energy industry. In terms of creating jobs and supplying oil and gas, offshore drilling in the Gulf of Mexico provides a lot for families and businesses across the State, as well as the Nation. For those working on the offshore rigs, safety is always a priority. As we approach the sixth anniversary of the Deepwater Horizon oil spill that took the lives of 11 men and devastated our coasts, we must absolutely make sure the workers out there are taken care of. One important aspect is ensuring they have reliable clean drinking water and sewage systems. This week, I would like to recognize H2O, Inc., from Lafayette, LA, as Small Business of the Week, for supporting Louisiana's offshore and marine industries by providing them with crucial water treatment solutions. One of the key issues facing the crews on offshore oil rigs is access to clean and safe potable water, and in 1980, H2O used their southwest Louisiana ties to provide desalination units to the offshore and gas market. H2O grew considerably when it started producing marine and offshore potable water, sewage, and electrochlorination systems for companies all around the world. With this new range of products, H2O was able to provide more job opportunities and currently has many employees on staff. In 2013, H2O acquired Owens Manufacturing and Specialty Company, which allowed them to venture into the offshore wastewater treatment market. Just last fall, H2O brought in PEPCON systems in order to strengthen their electrochlorination services. Today H2O is known as the region's leading water system equipment provider and even holds patents. Congratulations again to H2O for being selected as Small Business of the Week, and thank you for your commitment to providing clean water treatment solutions to folks in the Gulf of Mexico and around the world.

Mr. VITTER

Mr. VITTER. Mr. President, small businesses and entrepreneurs are known for their toughness and can-do attitude, understanding full well the importance of quality equipment and services to get jobs done right the first time. For their commitment to providing north Louisiana and the surrounding Ark-La-Tex region with the heavy machinery to keep the region moving, this week I am glad to announce Bobby Johnson Equipment Company, Inc., of Oil City, LA, as Small Business of the Week. In 1973, Bobby Johnson opened his namesake equipment company in Oil City, LA, with the goal of serving the tristate Ark-La-Tex region with quality heavy equipment products and services. With a staff boasting over 100 combined years of engine and mechanical experience, Bobby Johnson Equipment quickly grew in sales and customer satisfaction. As a family-owned and operated truck dealer, Mr. Johnson and his employees work directly with Ark-La-Tex companies to provide heavy duty trucks, truck parts, trailers, and equipment. Today Bobby Johnson Equipment Company has become one of north Louisiana's largest suppliers of new and used parts and services, servicing the transportation, construction, and oil and natural gas industries. Conveniently located in Louisiana's northwest region, Bobby Johnson Equipment Company provides services to folks in and around Little Rock, AR, Tulsa, OK, Jackson, MS, and Dallas, Fort Worth, and Houston, TX, in addition to their far-reaching online sales operation. Congratulations again to Bobby Johnson Equipment Company, Inc., for being selected as Small Business of the Week, and I look forward to your continued growth and success.

Mr. VITTER

Mr. VITTER. Mr. President, I ask unanimous consent that the Select Committee on Intelligence be authorized to meet during the session of the Senate on June 16, 2016, at 9 a.m., in room SH-216 of the Hart Senate Office Building.

Mr. VITTER. Mr. President, I ask unanimous consent that the Committee on Small Business and Entrepreneurship be authorized to meet during the session of the Senate on June 16, 2016, at 11 a.m., in room 428A of the Russell Senate Office Building to conduct a hearing entitled ``Keeping the American Dream Alive: The Challenge to Create Jobs Under the NLRB's New Joint employer Standard.''

Mr. VITTER. Mr. President, I ask unanimous consent that the Committee on Armed Services be authorized to meet during the session of the Senate on June 16, 2016, at 9:30 a.m.

Mr. VITTER. Mr. President, I ask unanimous consent that the Committee on the Judiciary be authorized to meet during the session of the Senate on June 16, 2016, at 10 a.m., in room SD-226 of the Dirksen Senate Office Building.

Mr. VITTER. Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on June 16, 2016, at 10:30 a.m., to conduct a hearing entitled ``Our Evolving Understanding and Response to Transnational Criminal Threats.''

Mr. VITTER

Mr. VITTER. Madam President, I ask unanimous consent that following and notwithstanding the adoption of the compound motion to go to conference on S. 524, that Senator Shaheen and Senator Whitehouse or their designees be recognized to each offer a motion to instruct conferees and that there be 2 minutes of debate equally divided on the motions, and that following the use or yielding back of that time, the Senate vote on the motions to instruct conferees with no intervening action or debate.

Mr. VITTER. Madam President, I ask unanimous consent that the mandatory quorum call be waived.

Mr. VITTER. Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. VITTER

Mr. VITTER. Mr. President, known as the ``Sportsman's Paradise,'' Louisiana is blessed with an abundance of natural resources, and millions of folks come from across the country and the world to see our unique ecosystems in person. The tourism industry plays a major role in our State's economy, bringing in billions of dollars each year. Much of that positive growth is due to our local small businesses, including this week's Small Business of the Week, Annie Miller's Son's Swamp & Marsh Tour of Houma, LA. Annie and Eddie Miller founded Annie Miller's Swamp and Marsh Tours in 1979, which became Louisiana's very first swamp-boat company. Known as Alligator Annie, Annie and Eddie escorted tourists through the Louisiana swamps, showing them everything from the beautiful marshlands to backwater canals and even allowing guests to feed wild alligators. Annie took her role as Louisiana's trailblazer of nature-based tourism very seriously and made sure each guest was well-educated in the effects of coastal erosion by the time the tour had concluded. Her efforts over the years led to the local government preserving sections of the marsh and bayous in Terrebonne Parish for the local alligators. Over the years, Annie Miller's Swamp and Marsh Tours experienced major successes, and it wasn't long before Annie and Eddie's son Jimmy Bonvillain joined the family business. Upon Annie's passing in 2004, Jimmy renamed the family business to Annie Miller's Son's Swamp & Marsh Tour and continues to welcome visitors year-round. Louisiana's small businesses in the tourism industry are constantly finding new and entertaining ways to attract visitors to our State. With its focus on both the beauty and importance of preserving our wildlife and natural resources, Annie Miller's Son's Swamp & Marsh Tour certainly found its successful hook decades ago. Congratulations to Annie Miller's Son's Swamp & Marsh Tour for being selected as this week's Small Business of the Week.

Mr. VITTER

Mr. VITTER. Mr. President, we in Louisiana are certainly familiar with the heat and humidity that comes with each summer, and as my four children will tell you, nothing beats the heat better than jumping into a pool. This week I would like to recognize Lucas Firmin Pools of Baton Rouge, LA, as Small Business of the Week for their ongoing commitment to supporting the local economy and bringing high- quality construction work to local YMCAs, family homes, and local residential communities across Louisiana. Established in 2008, Lucas Firmin Pools is run by Baton Rouge natives Lucas and Jenny Firmin. As a licensed commercial and residential contractor, Lucas has been working in the pool building industry since 2005. Lucas's wife, Jenny, is a certified pool operator with a strong background in water balance and chemistry and also manages the company's service and maintenance requests. The company's mission is to construct high-quality pools for both residential and commercial buildings in and around Baton Rouge. In the Firmins' 8 years as small business owners, they have developed a strong reputation for providing excellent customer service, which has led to the company's ongoing growth and success. Recently, Lucas Firmin Pools completed the pool facility at the local Baton Rouge YMCA. Today Lucas and Jenny work with local professional designers, architects, and homeowners across the State in order to construct pools, fountains, and water features for families, apartment complexes, commercial buildings, and more. Congratulations again to the Lucas Firmin Pools for being selected as Small Business of the Week, and I wish you continued success in the coming years.

Mr. VITTER

Mr. VITTER. Mr. President, as chairman of the Senate Committee on Small Business and Entrepreneurship, I believe it is important for America's small businesses to actively support the entrepreneurial efforts of the next generation of small business owners. As part of the Louisiana Lemonade Day initiative on Saturday, April 30, 2016, I would like to recognize the thousands of Louisiana children who will launch and operate their own small business lemonade stands as the combined Small Business of the Week. This year over 50,000 children across the State of Louisiana will learn firsthand what is necessary to start and run a small business. The Louisiana Lemonade Day takes children through a 14-step process from the dream of starting a small business all the way to launching one. It focuses on life lessons of learning how to save, spend, budget, and, most importantly, contribute to their local communities. This year marks the sixth anniversary of Louisiana Lemonade Day, and I would like to specifically commend the volunteers and supporters in cities across our State that include New Orleans, Baton Rouge, Lake Charles, Lafayette, New Iberia, Covington, Slidell, and many more. Since 2007 this program has reached over 1 million children across the entire Nation, and has played a significant role in educating and motivating the youth in the Pelican State. Congratulations to each and every single child who is participating in Louisiana Lemonade Day, and I look forward to seeing the continued growth and success of our younger generations moving forward in the coming years.

Mr. VITTER

Mr. VITTER. Mr. President, first of all, let me thank our colleague for his words. I certainly join him in mourning the horrible, tragic loss of life this weekend in Orlando. Certainly I am committed, along with all our colleagues, to fighting terror wherever it exists and whomever it targets. This was absolutely horrible. Mr. President, I also rise today in support of a really important piece of bipartisan legislation that I have been working on with Senator Shaheen. I have introduced it to reauthorize the Small Business Innovation Research and Small Business Technology Transfer Programs-- two vital small business programs in the Federal Government. We have an opportunity to accomplish this--to fully reauthorize and improve these programs--in the context of this Defense authorization bill that is on the floor now. I am very hopeful we are going to do that as part of a managers' package to the bill. These two programs--the Small Business Innovation Research and the Small Business Technology Transfer Programs--are really vital and useful to the success of small businesses directly responsible for creating thousands, tens of thousands of new jobs. By funding small businesses and entrepreneurs in the critical early stages of R&D, these programs allow firms to drive the innovation sector of the economy with new ideas and technologies. Very rarely have government programs had such a clear and measurable, positive and stimulating effect on the economy. SBIR and STTR are also crucial to Federal agencies as they solve many of our biggest science and technology challenges. Giving small, innovative firms access to already appropriated Federal R&D funding is a win-win--a win for the small business sector and just as importantly a win for the taxpayer and those agencies. These programs exist to foster innovation, to facilitate public- private partnerships, to give firms the funding they need to help 11 Federal departments and agencies meet their R&D needs. These programs not only create jobs, but they also lead to a path for commercialization for many of these businesses, which is absolutely key to their success. These programs have been front and center in improving our Nation's capacity to innovate. Over the course of the SBIR Program history from 1982 to 2014--the last year for which we have numbers--Federal agencies have made more than 152,000 SBIR awards to small businesses to develop innovative technologies, and the total dollar amount awarded--again out of existing R&D budgets--is $42 billion. In 2014 alone, SBIR gave nearly 5,500 Phase I and Phase II awards worth about $2.2 billion, and the SBA is currently reporting an average of 5,000 awards per year. These awards are directly responsible for some of the most popular technologies that are available to the public today. For instance, through an SBIR award from the Air Force, we have created a technology known as LASIK, originally to correct vision for pilots, but that is a widely used technology to correct vision for all Americans. That was an SBIR success. Military armor has been a regular success of the SBIR Programs. ArmorWorks is a great example. That created over 350,000 top-of-the- line body armor plates worn by U.S. service men and women in the United States. Liftware Spoon--a spoon that stabilizes hand tremors for patients with Parkinson's disease and essential tremor--again is a clear, identifiable, and important SBIR success story. HydroMARK decreases patient discomfort with a minimally invasive breast biopsy procedure. With the HydroMARK, a mammogram is no longer necessary and the surgeon or radiologist can use an ultrasound to locate the tumor. This is a huge innovation that has dramatically improved thousands of women's lives and, again, directly out of SBIR. Bioseal reduces lung collapse rates after lung biopsies. iRobot's Roomba is something I can relate to. It is moving around at home when I am there on the weekend. This is the popular autonomous robotic vacuum cleaner that has reached major commercial success, selling over 10 million units. That is directly out of SBIR. These programs we are talking about, which have been so successful, are set to expire September 30 of 2017. As many of my colleagues can attest, it was a tumultuous process to complete the last reauthorization, so we are starting early now so we don't go through that tumultuous process again. Back then--the last reauthorization-- participating agencies and firms had to endure a process that took over 3 years and 14 short-term extensions. In a bipartisan effort with Senator Shaheen, we have been working for the last year to avoid all that and to do this ahead of time so we don't have all of that tumult and uncertainty, which saps the effectiveness of the program for a significant period of time. Reauthorizing these programs this year will ensure stability, foster an environment of innovative entrepreneurship, and avoid that uncertainty by directing more than $200 billion annually to this R&D funding to the Nation's small business firms. As chair of the Senate's Small Business Committee, I have made this a real priority. Senator Shaheen, as ranking member, has done the same. So I thank all of our committee members who are solidly behind this effort. I also thank so many other Members of the Senate who have been cooperative. In the context of this Defense bill, we have cleared our reauthorization amendment with the Senate Committee on Armed Services, and I want to specifically thank Senators McCain and Reed for their leadership. We have cleared it with the Commerce Committee because agencies under the jurisdiction of that committee are involved. We have cleared it with the HELP Committee. They have the same tangential relationship. We are the authorizing committee, but some agencies involved are under their jurisdiction. We have cleared it with everyone in sight, so that means we have a real opportunity to have this in the managers' package--which it is, as I speak--and to pass it through the Defense bill as a full reauthorization. I am also proud to share that not only will our reauthorization annually direct more than $2 billion of Federal R&D to small firms that are most likely to create jobs and commercialize their projects, but it will also establish the Regional SBIR State Collaborative Initiative Pilot Program to help low-participation States attract R&D funding for their businesses. All of this reauthorization is a true consensus effort, so I am grateful to the more than 50 organizations that strongly support it-- among them the Small Business Technology Council, the National Small Business Association and the Defense Alliance, and 47 more. It is a true consensus effort. They all support the effort, as does the leadership of SAS; Health, Education, Labor, and Pensions; and the Commerce Committee. So it is an important opportunity that we shouldn't let fall through our grasp. Again, I want to stress that reauthorizing this program is an effective way to meet national needs while jump-starting entrepreneurs, growing our economy, and creating jobs. With that, Mr. President, I urge my colleagues to support this consensus amendment and help ensure that small businesses across the country can operate with long-term certainty and stability, which this amendment will provide. I yield the floor.

Mr. VITTER

Mr. VITTER. That is an important question Senator Inhofe and I appreciate the opportunity to clarify. The Lautenberg bill tries to address the concern about forcing paralysis by analysis in several ways. First, the bill establishes that `unreasonable risk under the conditions of use' as the safety standard to be applied by EPA. ``Unreasonable risk'' does not mean no risk; it means that EPA must determine, on a case-by-case basis, whether the risks posed by a specific high priority substance are reasonable in the circumstances of exposure and use. Second, the bill requires EPA to specifically identify the sensitive subpopulations that are relevant to and within the scope of the safety assessment and determination on the substance in question. At the same time, EPA should identify the scientific basis for the susceptibility, to ensure transparency for all stakeholders. In this way, the legislation affords EPA the discretion to identify relevant subpopulations but does not require--or expect--that all hypothetical subpopulations be addressed. While a principle element of this compromise is including protections for potentially susceptible subpopulations to better protect pregnant women and children, a core of the bill since it was first introduced by Senator Lautenberg and I was never to require the national standard to be protective of every identified subpopulation in every instance. If a chemical substance is being regulated in a condition of use that we know has no exposure to a subpopulation, EPA should apply the ``unreasonable risk'' standard appropriately. In addition, it is clear that the concept of low dose linearity is not firmly established by the science, and the concept is not appropriate to apply as a default in risk evaluations.

Mr. VITTER. Thank you Senator Inhofe, the sound science provisions were a critical part of TSCA reform in my opinion and I hope this bill serves as a model for how to responsibly reform other laws administered by EPA and other Federal Agencies that are tasked to make decisions based on science. For far too long Federal agencies have manipulated science to fit predetermined political outcomes, hiding information and underlying data, rather than using open and transparent science to justify fair and objective decision making. This Act seeks to change all of that and ensure that EPA uses the best available science, bases scientific decisions on the weight of the scientific evidence rather than one or two individual cherry-picked studies, and forces a much greater level of transparency that forces EPA to show their work to Congress and the American public. Congress recognized the need to use available studies, reports and recommendations for purposes of chemical assessments rather than creating them from whole cloth. We do believe, however, that the recommendations in reports of the National Academy of Sciences should not be the sole basis of the chemical assessments completed by EPA. Rather, the EPA must conduct chemical assessments consistent with all applicable statutory provisions and agency guidelines, policies and procedures. Further, in instances where there were other studies and reports unavailable at the time of the NAS recommendations, EPA should take advantage of those studies and reports in order to ensure that the science used for chemical assessments is the best available and most current science.

Mr. VITTER. When TSCA was first enacted in 1976, the Act created a higher level of judicial review for certain rulemakings that would restrict chemicals in commerce. Congress took this approach because it wanted to ensure that rulemakings that would directly affect commerce by imposing restrictions on chemicals would be well supported with substantial evidence. The substantial evidence standard requires an agency rule to be supported by substantial evidence in the rulemaking record taken as a whole. The compromise legislation makes no changes to the process for judicial review of rulemakings or the standard of review. The compromise now provides EPA with expanded authority to pursue certain administrative actions by order in addition to by rule. This new order authority is intended to allow EPA greater flexibility to move quickly to collect certain information and take certain actions. It is intended that an agency order constitute final agency action on issuance and be subject to judicial review. Orders under Sections 4, 5, and 6 of TSCA constitute final agency action on issuance, and continue to be reviewed under the standards established by the Administrative Procedures Act. The intention is that regulatory actions that result in total or partial bans of chemicals, regardless of whether such action is by rule or order authority, be supported by substantial evidence in the rulemaking record taken as a whole. Senator Inhofe, before we are done I think there are a few other sections of the bill that have been less discussed that it would be important to touch on. The first is Section 9 of TSCA which discusses the relationship between this and other laws. Could you please speak to what the intent of this bill with regards to Section 9 is?

Mr. VITTER. Thank you, Senator Inhofe, for those important clarifications to preemption and for another question that is very important to clarify in order to capture the full conngressional intent of the bills preemption section. This Act is intended to change the preemption provisions of TSCA only with respect to regulations promulgated and actions taken under this Act after its effective date. This Act is not intended to alter any preemptive effect on common law or state positive law of regulations promulgated or administrative actions taken under preexisting authorities, and is not intended to make any statement regarding legal rights under preexisting authorities, including TSCA sections 6 and 17 in effect prior to the effective date of this Act.

Mr. VITTER. It was the Congressional intent of the legation to balance the need to ensure public access to health and safety studies with the need to protect from public disclosure valuable confidential business information (CBI) and trade secrets that are already exempt from mandatory disclosure under the Freedom of Information Act. Striking the appropriate balance between public disclosure on the one hand, and the protection of a company's valuable intellectual property rights embodied in CBI and trade secrets on the other hand, is essential to better informing the public regarding decisions by regulatory authorities with respect to chemical, while encouraging innovation and economic competitiveness. The compromise retains the language of existing section 14(b) to make clear that the Administrator is not prohibited from disclosing health and safety studies, but that certain types of CBI and trade secrets disclosed within health and safety studies must always be protected from disclosure. The new, additional language in this section is intended to clarify that confidential chemical identities--which includes chemical names, formulas and structures--may themselves reveal CBI or trade secret process information. In such cases, the confidential chemical identity must always be protected from disclosure. The new language is not limiting; it makes clear that any other information that would reveal proprietary or trade secret processes is similarly protected. In other cases involving confidential chemical identities, EPA should continue to strike an appropriate balance between protection of proprietary CBI or trade secrets, and ensuring public access to health and safety information. In addition to the protection of confidential information, another critically important provision in the deal was preemption. Senator Inhofe could you describe how the compromise address the relationship between State governments and the Federal government?

Mr. VITTER. Protecting innovation and not materially altering the new chemicals process was a critical part of the final compromise. Every effort was made to ensure EPA has the right tools to review new chemical substances but the amendments to this section were intended to conform closely with EPA's current practice and maintain the Agency's timely reviews that allow substances to market within the statutory deadlines. First, the compromise retains the 90-day review period for EPA to make a risk-based decision on a new chemical, without consideration of costs or other non-risk factors. Second, when EPA does not have the information sufficient for the evaluation of a new chemical, or when EPA determines that a new chemical may present an unreasonable risk, the compromise requires EPA regulate the new chemical to the extent necessary to protect against unreasonable risk. Once sufficient information is available, of course, EPA must make a decision. These requirements largely reflect EPA's practice today, under which EPA can allow the new chemical on the market but with limits. Finally, if EPA determines that a new chemical is not likely to present an unreasonable risk, EPA must make a statement to that effect before the end of the 90 day period. This provision ensures that chemicals considered not likely to pose an unreasonable risk are not delayed in getting to market. Importantly, EPA would not stop reviewing new chemical notices while it develops any policies, procedures and guidance needed to implement these new provisions in Section 5. The compromise is very clear: EPA should not stop or slow its review of new chemicals while it develops any needed new policies procedures or guidance for Section 5. Also by amending Section 5 to require EPA make an affirmative finding before manufacturing or processing of a substance may commence, Congress did not intend to trigger the requirements of any other environmental laws. This again maintains the consistency with how EPA currently administers the new chemicals program under existing law. Senator Inhofe, this leads me to another question on a provision that is rather technical and has been misunderstood by many and that is nomenclature. After the TSCA Inventory was established in 1979, questions arose about the appropriate chemical `nomenclature' to be used to list these chemical substances. EPA addressed many of these questions in a series of guidance documents. The compromise includes a provision on nomenclature. What is this provision intended to do?

Mr. VITTER. That is a very important question and the clear intent of Congress is the answer is yes. This is because, to be legally sufficient according to EPA's own technical assistance, EPA's Section 6(a) rule must ensure that the chemical substance or mixture no longer presents an unreasonable risk. A Section 6(i) order, determining that a chemical substance does not present an unreasonable risk under conditions of use, is similarly final Agency action applicable to all those conditions of use that were identified in the scope of EPA's risk evaluation on the chemical substance. To be clear, every condition of use identified by the Administrator in the scope of the risk evaluation must, and will be either found to present or not present an unreasonable risk. Mr. Inhofe, this brings me to a question on the testing EPA has the authority require manufacturers to conduct under this compromise. One of the major flaws in TSCA is the so-called `catch 22' under which EPA cannot require testing of chemicals without first making a finding that the chemical may present an unreasonable risk. In TSCA's history, EPA has been able to make that finding only for about 200 chemicals. Does the compromise remedy that provision of TSCA?

Mr. VITTER. Thank you Senator Inhofe. There are many important provisions of this law and I think clarifying what Congress intended is very important to ensure the legislative intent is understood and followed. To specifically address your first question, the term ``conditions of use'' is specifically defined as `the circumstances, as determined by the Administrator, under which a chemical substance is intended, known, or reasonably foreseen to be manufactured, processed, distributed in commerce, used, or disposed of.' The conditions of use of a chemical substance drive the potential for exposure to a chemical. Exposure potential, when integrated with the hazard potential of a chemical, determines a chemical's potential for risk. So EPA's understanding of a chemical's conditions of use--and importantly it is the circumstances `the Administrator' determines--will be critical to EPA's final determination of whether a chemical is safe or presents an unreasonable risk that must be controlled. Finally, to address your question of how this is supposed to be applied by EPA in risk evaluations, it is important to note that many TSCA chemicals have multiple uses--industrial, commercial and consumer uses. EPA has identified subcategories of chemical uses for regular chemical reporting requirements, so the Agency is well aware that some categories of uses pose greater potential for exposure than others and that the risks from many categories of uses are deemed negligible or already well controlled. The language of the compromise makes clear that EPA has to make a determination on all conditions of use considered in the scope but the Agency is given the discretion to determine the conditions of use that the Agency will address in its evaluation of the priority chemical. This assures that the Agency's focus on priority chemicals is on conditions of use that raise the greatest potential for risk. This also assures that the Agency can effectively assess and control priority chemicals and meet the new law's strict deadlines. Without this discretion to focus chemical risk assessments on certain conditions of use, the Agency's job would be more difficult.