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pdfPUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 115
Public Law 111–5
111th Congress
An Act
Making supplemental appropriations for job preservation and creation, infrastructure
investment, energy efficiency and science, assistance to the unemployed, and
State and local fiscal stabilization, for the fiscal year ending September 30,
2009, and for other purposes.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘American Recovery and Reinvestment Act of 2009’’.
Feb. 17, 2009
[H.R. 1]
American
Recovery and
Reinvestment
Act of 2009.
26 USC 1 note.
SEC. 2. TABLE OF CONTENTS.
The table of contents for this Act is as follows:
DIVISION A—APPROPRIATIONS PROVISIONS
TITLE I—AGRICULTURE, RURAL DEVELOPMENT, FOOD AND DRUG ADMINISTRATION, AND RELATED AGENCIES
TITLE II—COMMERCE, JUSTICE, SCIENCE, AND RELATED AGENCIES
TITLE III—DEPARTMENT OF DEFENSE
TITLE IV—ENERGY AND WATER DEVELOPMENT
TITLE V—FINANCIAL SERVICES AND GENERAL GOVERNMENT
TITLE VI—DEPARTMENT OF HOMELAND SECURITY
TITLE VII—INTERIOR, ENVIRONMENT, AND RELATED AGENCIES
TITLE VIII—DEPARTMENTS OF LABOR, HEALTH AND HUMAN SERVICES,
AND EDUCATION, AND RELATED AGENCIES
TITLE IX—LEGISLATIVE BRANCH
TITLE X—MILITARY CONSTRUCTION AND VETERANS AFFAIRS AND RELATED AGENCIES
TITLE XI—STATE, FOREIGN OPERATIONS, AND RELATED PROGRAMS
TITLE XII—TRANSPORTATION, HOUSING AND URBAN DEVELOPMENT, AND
RELATED AGENCIES
TITLE XIII—HEALTH INFORMATION TECHNOLOGY
TITLE XIV—STATE FISCAL STABILIZATION FUND
TITLE XV—ACCOUNTABILITY AND TRANSPARENCY
TITLE XVI—GENERAL PROVISIONS—THIS ACT
DIVISION B—TAX, UNEMPLOYMENT, HEALTH, STATE FISCAL RELIEF, AND
OTHER PROVISIONS
TITLE I—TAX PROVISIONS
TITLE II—ASSISTANCE FOR UNEMPLOYED WORKERS AND STRUGGLING
FAMILIES
TITLE III—PREMIUM ASSISTANCE FOR COBRA BENEFITS
TITLE IV—MEDICARE AND MEDICAID HEALTH INFORMATION TECHNOLOGY; MISCELLANEOUS MEDICARE PROVISIONS
TITLE V—STATE FISCAL RELIEF
TITLE VI—BROADBAND TECHNOLOGY OPPORTUNITIES PROGRAM
TITLE VII—LIMITS ON EXECUTIVE COMPENSATION
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SEC. 3. PURPOSES AND PRINCIPLES.
(a) STATEMENT
the following:
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26 USC 1 note.
PURPOSES.—The purposes of this Act include
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PUBLIC LAW 111–5—FEB. 17, 2009
(1) To preserve and create jobs and promote economic
recovery.
(2) To assist those most impacted by the recession.
(3) To provide investments needed to increase economic
efficiency by spurring technological advances in science and
health.
(4) To invest in transportation, environmental protection,
and other infrastructure that will provide long-term economic
benefits.
(5) To stabilize State and local government budgets, in
order to minimize and avoid reductions in essential services
and counterproductive state and local tax increases.
(b) GENERAL PRINCIPLES CONCERNING USE OF FUNDS.—The
President and the heads of Federal departments and agencies shall
manage and expend the funds made available in this Act so as
to achieve the purposes specified in subsection (a), including commencing expenditures and activities as quickly as possible consistent with prudent management.
1 USC 1 note.
SEC. 4. REFERENCES.
Except as expressly provided otherwise, any reference to ‘‘this
Act’’ contained in any division of this Act shall be treated as
referring only to the provisions of that division.
SEC. 5. EMERGENCY DESIGNATIONS.
(a) IN GENERAL.—Each amount in this Act is designated as
an emergency requirement and necessary to meet emergency needs
pursuant to section 204(a) of S. Con. Res. 21 (110th Congress)
and section 301(b)(2) of S. Con. Res. 70 (110th Congress), the
concurrent resolutions on the budget for fiscal years 2008 and
2009.
(b) PAY-AS-YOU-GO.—All applicable provisions in this Act are
designated as an emergency for purposes of pay-as-you-go principles.
DIVISION A—APPROPRIATIONS
PROVISIONS
That the following sums are appropriated, out of any money
in the Treasury not otherwise appropriated, for the fiscal year
ending September 30, 2009, and for other purposes, namely:
TITLE I—AGRICULTURE, RURAL DEVELOPMENT, FOOD AND
DRUG ADMINISTRATION, AND RELATED AGENCIES
DEPARTMENT OF AGRICULTURE
AGRICULTURE BUILDINGS
AND
FACILITIES
AND
RENTAL PAYMENTS
For an additional amount for ‘‘Agriculture Buildings and Facilities and Rental Payments’’, $24,000,000, for necessary construction,
repair, and improvement activities.
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OFFICE OF INSPECTOR GENERAL
For an additional amount for ‘‘Office of Inspector General’’,
$22,500,000, to remain available until September 30, 2013, for
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PUBLIC LAW 111–5—FEB. 17, 2009
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oversight and audit of programs, grants, and activities funded by
this Act and administered by the Department of Agriculture.
AGRICULTURAL RESEARCH SERVICE
BUILDINGS AND FACILITIES
For an additional amount for ‘‘Buildings and Facilities’’,
$176,000,000, for work on deferred maintenance at Agricultural
Research Service facilities: Provided, That priority in the use of
such funds shall be given to critical deferred maintenance, to
projects that can be completed, and to activities that can commence
promptly following enactment of this Act.
FARM SERVICE AGENCY
SALARIES AND EXPENSES
For an additional amount for ‘‘Farm Service Agency, Salaries
and Expenses,’’ $50,000,000, for the purpose of maintaining and
modernizing the information technology system.
NATURAL RESOURCES CONSERVATION SERVICE
WATERSHED AND FLOOD PREVENTION OPERATIONS
For an additional amount for ‘‘Watershed and Flood Prevention
Operations’’, $290,000,000, of which $145,000,000 is for necessary
expenses to purchase and restore floodplain easements as authorized by section 403 of the Agricultural Credit Act of 1978 (16
U.S.C. 2203) (except that no more than $30,000,000 of the amount
provided for the purchase of floodplain easements may be obligated
for projects in any one State): Provided, That such funds shall
be allocated to projects that can be fully funded and completed
with the funds appropriated in this Act, and to activities that
can commence promptly following enactment of this Act.
WATERSHED REHABILITATION PROGRAM
For an additional amount for ‘‘Watershed Rehabilitation Program’’, $50,000,000: Provided, That such funds shall be allocated
to projects that can be fully funded and completed with the funds
appropriated in this Act, and to activities that can commence
promptly following enactment of this Act.
RURAL HOUSING SERVICE
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RURAL HOUSING INSURANCE FUND PROGRAM ACCOUNT
For an additional amount for gross obligations for the principal
amount of direct and guaranteed loans as authorized by title V
of the Housing Act of 1949, to be available from funds in the
rural housing insurance fund, as follows: $1,000,000,000 for section
502 direct loans; and $10,472,000,000 for section 502 unsubsidized
guaranteed loans.
For an additional amount for the cost of direct and guaranteed
loans, including the cost of modifying loans, as defined in section
502 of the Congressional Budget Act of 1974, as follows: $67,000,000
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PUBLIC LAW 111–5—FEB. 17, 2009
for section 502 direct loans; and $133,000,000 for section 502 unsubsidized guaranteed loans.
RURAL COMMUNITY FACILITIES PROGRAM ACCOUNT
For an additional amount for the cost of direct loans and
grants for rural community facilities programs as authorized by
section 306 and described in section 381E(d)(1) of the Consolidated
Farm and Rural Development Act, $130,000,000.
RURAL BUSINESS—COOPERATIVE SERVICE
RURAL BUSINESS PROGRAM ACCOUNT
For an additional amount for the cost of guaranteed loans
and grants as authorized by sections 310B(a)(2)(A) and 310B(c)
of the Consolidated Farm and Rural Development Act (7 U.S.C.
1932), $150,000,000.
RURAL UTILITIES SERVICE
RURAL WATER AND WASTE DISPOSAL PROGRAM ACCOUNT
For an additional amount for the cost of direct loans and
grants for the rural water, waste water, and waste disposal programs authorized by sections 306 and 310B and described in section
381E(d)(2) of the Consolidated Farm and Rural Development Act,
$1,380,000,000.
DISTANCE LEARNING, TELEMEDICINE, AND BROADBAND PROGRAM
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Grants.
Loans.
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For an additional amount for the cost of broadband loans and
loan guarantees, as authorized by the Rural Electrification Act
of 1936 (7 U.S.C. 901 et seq.) and for grants (including for technical
assistance), $2,500,000,000: Provided, That the cost of direct and
guaranteed loans shall be as defined in section 502 of the Congressional Budget Act of 1974: Provided further, That, notwithstanding
title VI of the Rural Electrification Act of 1936, this amount is
available for grants, loans and loan guarantees for broadband infrastructure in any area of the United States: Provided further, That
at least 75 percent of the area to be served by a project receiving
funds from such grants, loans or loan guarantees shall be in a
rural area without sufficient access to high speed broadband service
to facilitate rural economic development, as determined by the
Secretary of Agriculture: Provided further, That priority for
awarding such funds shall be given to project applications for
broadband systems that will deliver end users a choice of more
than one service provider: Provided further, That priority for
awarding funds made available under this paragraph shall be given
to projects that provide service to the highest proportion of rural
residents that do not have access to broadband service: Provided
further, That priority shall be given for project applications from
borrowers or former borrowers under title II of the Rural Electrification Act of 1936 and for project applications that include such
borrowers or former borrowers: Provided further, That priority for
awarding such funds shall be given to project applications that
demonstrate that, if the application is approved, all project elements
will be fully funded: Provided further, That priority for awarding
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PUBLIC LAW 111–5—FEB. 17, 2009
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such funds shall be given to project applications for activities that
can be completed if the requested funds are provided: Provided
further, That priority for awarding such funds shall be given to
activities that can commence promptly following approval: Provided
further, That no area of a project funded with amounts made
available under this paragraph may receive funding to provide
broadband service under the Broadband Technology Opportunities
Program: Provided further, That the Secretary shall submit a report
on planned spending and actual obligations describing the use
of these funds not later than 90 days after the date of enactment
of this Act, and quarterly thereafter until all funds are obligated,
to the Committees on Appropriations of the House of Representatives and the Senate.
Reports.
Deadlines.
FOOD AND NUTRITION SERVICE CHILD NUTRITION
PROGRAMS
For an additional amount for the Richard B. Russell National
School Lunch Act (42 U.S.C. 1751 et. seq.), except section 21,
and the Child Nutrition Act of 1966 (42 U.S.C. 1771 et. seq.),
except sections 17 and 21, $100,000,000, to carry out a grant program for National School Lunch Program equipment assistance:
Provided, That such funds shall be provided to States administering
a school lunch program in a manner proportional with each States’
administrative expense allocation: Provided further, That the States
shall provide competitive grants to school food authorities based
upon the need for equipment assistance in participating schools
with priority given to school in which not less than 50 percent
of the students are eligible for free or reduced price meals under
the Richard B. Russell National School Lunch Act.
Grants.
SPECIAL SUPPLEMENTAL NUTRITION PROGRAM FOR WOMEN, INFANTS,
AND CHILDREN (WIC)
For an additional amount for the special supplemental nutrition
program as authorized by section 17 of the Child Nutrition Act
of 1966 (42 U.S.C. 1786), $500,000,000, of which $400,000,000 shall
be placed in reserve to be allocated as the Secretary deems necessary, notwithstanding section 17(i) of such Act, to support participation should cost or participation exceed budget estimates, and
of which $100,000,000 shall be for the purposes specified in section
17(h)(10)(B)(ii): Provided, That up to one percent of the funding
provided for the purposes specified in section 17(h)(10)(B)(ii) may
be reserved by the Secretary for Federal administrative activities
in support of those purposes.
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COMMODITY ASSISTANCE PROGRAM
For an additional amount for the emergency food assistance
program as authorized by section 27(a) of the Food and Nutrition
Act of 2008 (7 U.S.C. 2036(a)) and section 204(a)(1) of the Emergency Food Assistance Act of 1983 (7 U.S.C. 7508(a)(1)),
$150,000,000: Provided, That of the funds made available, the Secretary may use up to $50,000,000 for costs associated with the
distribution of commodities, of which up to $25,000,000 shall be
made available in fiscal year 2009.
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PUBLIC LAW 111–5—FEB. 17, 2009
GENERAL PROVISIONS—THIS TITLE
Puerto Rico.
American Samoa.
Effective date.
Deadline.
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Grants.
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SEC. 101. TEMPORARY INCREASE IN BENEFITS UNDER THE
SUPPLEMENTAL NUTRITION ASSISTANCE PROGRAM. (a) MAXIMUM
BENEFIT INCREASE.—
(1) IN GENERAL.—Beginning the first month that begins
not less than 25 days after the date of enactment of this
Act, the value of benefits determined under section 8(a) of
the Food and Nutrition Act of 2008 and consolidated block
grants for Puerto Rico and American Samoa determined under
section 19(a) of such Act shall be calculated using 113.6 percent
of the June 2008 value of the thrifty food plan as specified
under section 3(o) of such Act.
(2) TERMINATION.—
(A) The authority provided by this subsection shall
terminate after September 30, 2009.
(B) Notwithstanding subparagraph (A), the Secretary
of Agriculture may not reduce the value of the maximum
allotments, minimum allotments or consolidated block
grants for Puerto Rico and American Samoa below the
level in effect for fiscal year 2009 as a result of paragraph
(1).
(b) REQUIREMENTS FOR THE SECRETARY.—In carrying out this
section, the Secretary shall—
(1) consider the benefit increases described in subsection
(a) to be a ‘‘mass change’’;
(2) require a simple process for States to notify households
of the increase in benefits;
(3) consider section 16(c)(3)(A) of the Food and Nutrition
Act of 2008 (7 U.S.C. 2025(c)(3)(A)) to apply to any errors
in the implementation of this section, without regard to the
120-day limit described in that section;
(4) disregard the additional amount of benefits that a
household receives as a result of this section in determining
the amount of overissuances under section 13 of the Food
and Nutrition Act of 2008 (7 U.S.C. 2022); and
(5) set the tolerance level for excluding small errors for
the purposes of section 16(c) of the Food and Nutrition Act
of 2008 (7 U.S.C. 2025(c)) at $50 through September 30, 2009.
(c) ADMINISTRATIVE EXPENSES.—
(1) IN GENERAL.—For the costs of State administrative
expenses associated with carrying out this section and administering the supplemental nutrition assistance program established under the Food and Nutrition Act of 2008 (7 U.S.C.
2011 et seq.), the Secretary shall make available $145,000,000
in fiscal year 2009 and $150,000,000 in fiscal year 2010, of
which $4,500,000 is for necessary expenses of the Food and
Nutrition Service for management and oversight of the program
and for monitoring the integrity and evaluating the effects
of the payments made under this section.
(2) TIMING FOR FISCAL YEAR 2009.—Not later than 60 days
after the date of enactment of this Act, the Secretary shall
make available to States amounts for fiscal year 2009 under
paragraph (1).
(3) ALLOCATION OF FUNDS.—Except as provided for management and oversight, funds described in paragraph (1) shall
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 121
be made available as grants to State agencies for each fiscal
year as follows:
(A) 75 percent of the amounts available for each fiscal
year shall be allocated to States based on the share of
each State of households that participate in the supplemental nutrition assistance program as reported to the
Department of Agriculture for the most recent 12-month
period for which data are available, adjusted by the Secretary (as of the date of enactment) for participation in
disaster programs under section 5(h) of the Food and Nutrition Act of 2008 (7 U.S.C. 2014(h)); and
(B) 25 percent of the amounts available for each fiscal
year shall be allocated to States based on the increase
in the number of households that participate in the supplemental nutrition assistance program as reported to the
Department of Agriculture over the most recent 12-month
period for which data are available, adjusted by the Secretary (as of the date of enactment) for participation in
disaster programs under section 5(h) of the Food and Nutrition Act of 2008 (7 U.S.C. 2014(h)).
(d) FOOD DISTRIBUTION PROGRAM ON INDIAN RESERVATIONS.—
For the costs relating to facility improvements and equipment
upgrades associated with the Food Distribution Program on Indian
Reservations, as established under section 4(b) of the Food and
Nutrition Act of 2008 (7 U.S.C. 2013(b)), the Secretary shall make
available $5,000,000: Provided, That administrative cost-sharing
requirements are not applicable to funds provided in accordance
with this provision.
(e) TREATMENT OF JOBLESS WORKERS.—
(1) REMAINDER OF FISCAL YEAR 2009 THROUGH FISCAL YEAR
2010.—Beginning with the first month that begins not less than
25 days after the date of enactment of this Act and for each
subsequent month through September 30, 2010, eligibility for
supplemental nutrition assistance program benefits shall not
be limited under section 6(o)(2) of the Food and Nutrition
Act of 2008 unless an individual does not comply with the
requirements of a program offered by the State agency that
meets the standards of subparagraphs (B) or (C) of that paragraph.
(2) FISCAL YEAR 2011 AND THEREAFTER.—Beginning on
October 1, 2010, for the purposes of section 6(o) of the Food
and Nutrition Act of 2008 (7 U.S.C. 2015(o)), a State agency
shall disregard any period during which an individual received
benefits under the supplemental nutrition assistance program
prior to October 1, 2010.
(f) FUNDING.—There are appropriated to the Secretary out of
funds of the Treasury not otherwise appropriated such sums as
are necessary to carry out this section.
SEC. 102. AGRICULTURAL DISASTER ASSISTANCE TRANSITION. (a)
FEDERAL CROP INSURANCE ACT. Section 531(g) of the Federal Crop
Insurance Act (7 U.S.C. 1531(g)) is amended by adding at the
end the following:
‘‘(7) 2008 TRANSITION ASSISTANCE.—
‘‘(A) IN GENERAL.—Eligible producers on a farm
described in subparagraph (A) of paragraph (4) that failed
to timely pay the appropriate fee described in that subparagraph shall be eligible for assistance under this section
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123 STAT. 122
in accordance with subparagraph (B) if the eligible producers on the farm—
‘‘(i) pay the appropriate fee described in paragraph
(4)(A) not later than 90 days after the date of enactment of this paragraph; and
‘‘(ii)(I) in the case of each insurable commodity
of the eligible producers on the farm, excluding grazing
land, agree to obtain a policy or plan of insurance
under subtitle A (excluding a crop insurance pilot program under that subtitle) for the next insurance year
for which crop insurance is available to the eligible
producers on the farm at a level of coverage equal
to 70 percent or more of the recorded or appraised
average yield indemnified at 100 percent of the
expected market price, or an equivalent coverage; and
‘‘(II) in the case of each noninsurable commodity
of the eligible producers on the farm, agree to file
the required paperwork, and pay the administrative
fee by the applicable State filing deadline, for the noninsured crop assistance program for the next year for
which a policy is available.
‘‘(B) AMOUNT OF ASSISTANCE.—Eligible producers on
a farm that meet the requirements of subparagraph (A)
shall be eligible to receive assistance under this section
as if the eligible producers on the farm—
‘‘(i) in the case of each insurable commodity of
the eligible producers on the farm, had obtained a
policy or plan of insurance for the 2008 crop year
at a level of coverage not to exceed 70 percent or
more of the recorded or appraised average yield indemnified at 100 percent of the expected market price,
or an equivalent coverage; and
‘‘(ii) in the case of each noninsurable commodity
of the eligible producers on the farm, had filed the
required paperwork, and paid the administrative fee
by the applicable State filing deadline, for the noninsured crop assistance program for the 2008 crop year,
except that in determining the level of coverage, the
Secretary shall use 70 percent of the applicable yield.
‘‘(C) EQUITABLE RELIEF.—Except as provided in
subparagraph (D), eligible producers on a farm that met
the requirements of paragraph (1) before the deadline
described in paragraph (4)(A) and are eligible to receive,
a disaster assistance payment under this section for a
production loss during the 2008 crop year shall be eligible
to receive an amount equal to the greater of—
‘‘(i) the amount that would have been calculated
under subparagraph (B) if the eligible producers on
the farm had paid the appropriate fee under that
subparagraph; or
‘‘(ii) the amount that would have been calculated
under subparagraph (A) of subsection (b)(3) if—
‘‘(I) in clause (i) of that subparagraph, ‘120
percent’ is substituted for ‘115 percent’; and
‘‘(II) in clause (ii) of that subparagraph, ‘125’
is substituted for ‘120 percent’.
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 123
‘‘(D) LIMITATION.—For amounts made available under
this paragraph, the Secretary may make such adjustments
as are necessary to ensure that no producer receives a
payment under this paragraph for an amount in excess
of the assistance received by a similarly situated producer
that had purchased the same or higher level of crop insurance prior to the date of enactment of this paragraph.
‘‘(E) AUTHORITY OF THE SECRETARY.—The Secretary
may provide such additional assistance as the Secretary
considers appropriate to provide equitable treatment for
eligible producers on a farm that suffered production losses
in the 2008 crop year that result in multiyear production
losses, as determined by the Secretary.
‘‘(F) LACK OF ACCESS.—Notwithstanding any other
provision of this section, the Secretary may provide assistance under this section to eligible producers on a farm
that—
‘‘(i) suffered a production loss due to a natural
cause during the 2008 crop year; and
‘‘(ii) as determined by the Secretary—
‘‘(I)(aa) except as provided in item (bb), lack
access to a policy or plan of insurance under subtitle A; or
‘‘(bb) do not qualify for a written agreement
because 1 or more farming practices, which the
Secretary has determined are good farming practices, of the eligible producers on the farm differ
significantly from the farming practices used by
producers of the same crop in other regions of
the United States; and
‘‘(II) are not eligible for the noninsured crop
disaster assistance program established by section
196 of the Federal Agriculture Improvement and
Reform Act of 1996 (7 U.S.C. 7333).’’.
(b) TRADE ACT OF 1974.—Section 901(g) of the Trade Act of
1974 (19 U.S.C. 2497(g)) is amended by adding at the end the
following:
‘‘(7) 2008 TRANSITION ASSISTANCE.—
‘‘(A) IN GENERAL.—Eligible producers on a farm
described in subparagraph (A) of paragraph (4) that failed
to timely pay the appropriate fee described in that subparagraph shall be eligible for assistance under this section
in accordance with subparagraph (B) if the eligible producers on the farm—
‘‘(i) pay the appropriate fee described in paragraph
(4)(A) not later than 90 days after the date of enactment of this paragraph; and
‘‘(ii)(I) in the case of each insurable commodity
of the eligible producers on the farm, excluding grazing
land, agree to obtain a policy or plan of insurance
under the Federal Crop Insurance Act (7 U.S.C. 1501
et seq.) (excluding a crop insurance pilot program
under that Act) for the next insurance year for which
crop insurance is available to the eligible producers
on the farm at a level of coverage equal to 70 percent
or more of the recorded or appraised average yield
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PUBLIC LAW 111–5—FEB. 17, 2009
indemnified at 100 percent of the expected market
price, or an equivalent coverage; and
‘‘(II) in the case of each noninsurable commodity
of the eligible producers on the farm, agree to file
the required paperwork, and pay the administrative
fee by the applicable State filing deadline, for the noninsured crop assistance program for the next year for
which a policy is available.
‘‘(B) AMOUNT OF ASSISTANCE.—Eligible producers on
a farm that meet the requirements of subparagraph (A)
shall be eligible to receive assistance under this section
as if the eligible producers on the farm—
‘‘(i) in the case of each insurable commodity of
the eligible producers on the farm, had obtained a
policy or plan of insurance for the 2008 crop year
at a level of coverage not to exceed 70 percent or
more of the recorded or appraised average yield indemnified at 100 percent of the expected market price,
or an equivalent coverage; and
‘‘(ii) in the case of each noninsurable commodity
of the eligible producers on the farm, had filed the
required paperwork, and paid the administrative fee
by the applicable State filing deadline, for the noninsured crop assistance program for the 2008 crop year,
except that in determining the level of coverage, the
Secretary shall use 70 percent of the applicable yield.
‘‘(C) EQUITABLE RELIEF.—Except as provided in
subparagraph (D), eligible producers on a farm that met
the requirements of paragraph (1) before the deadline
described in paragraph (4)(A) and are eligible to receive,
a disaster assistance payment under this section for a
production loss during the 2008 crop year shall be eligible
to receive an amount equal to the greater of—
‘‘(i) the amount that would have been calculated
under subparagraph (B) if the eligible producers on
the farm had paid the appropriate fee under that
subparagraph; or
‘‘(ii) the amount that would have been calculated
under subparagraph (A) of subsection (b)(3) if—
‘‘(I) in clause (i) of that subparagraph, ‘120
percent’ is substituted for ‘115 percent’; and
‘‘(II) in clause (ii) of that subparagraph, ‘125’
is substituted for ‘120 percent’.
‘‘(D) LIMITATION.—For amounts made available under
this paragraph, the Secretary may make such adjustments
as are necessary to ensure that no producer receives a
payment under this paragraph for an amount in excess
of the assistance received by a similarly situated producer
that had purchased the same or higher level of crop insurance prior to the date of enactment of this paragraph.
‘‘(E) AUTHORITY OF THE SECRETARY.—The Secretary
may provide such additional assistance as the Secretary
considers appropriate to provide equitable treatment for
eligible producers on a farm that suffered production losses
in the 2008 crop year that result in multiyear production
losses, as determined by the Secretary.
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 125
‘‘(F) LACK OF ACCESS.—Notwithstanding any other
provision of this section, the Secretary may provide assistance under this section to eligible producers on a farm
that—
‘‘(i) suffered a production loss due to a natural
cause during the 2008 crop year; and
‘‘(ii) as determined by the Secretary—
‘‘(I)(aa) except as provided in item (bb), lack
access to a policy or plan of insurance under subtitle A; or
‘‘(bb) do not qualify for a written agreement
because 1 or more farming practices, which the
Secretary has determined are good farming practices, of the eligible producers on the farm differ
significantly from the farming practices used by
producers of the same crop in other regions of
the United States; and
‘‘(II) are not eligible for the noninsured crop
disaster assistance program established by section
196 of the Federal Agriculture Improvement and
Reform Act of 1996 (7 U.S.C. 7333).’’.
(c) FARM OPERATING LOANS.—
(1) IN GENERAL.—For the principal amount of direct farm
operating loans under section 311 of the Consolidated Farm
and Rural Development Act (7 U.S.C. 1941), $173,367,000.
(2) DIRECT FARM OPERATING LOANS.—For the cost of direct
farm operating loans, including the cost of modifying loans,
as defined in section 502 of the Congressional Budget Act
of 1974 (2 U.S.C. 661a), $20,440,000.
(d) 2008 AQUACULTURE ASSISTANCE.—
(1) DEFINITIONS.—In this subsection:
(A) ELIGIBLE AQUACULTURE PRODUCER.—The term
‘‘eligible aquaculture producer’’ means an aquaculture producer that during the 2008 calendar year, as determined
by the Secretary—
(i) produced an aquaculture species for which feed
costs represented a substantial percentage of the input
costs of the aquaculture operation; and
(ii) experienced a substantial price increase of feed
costs above the previous 5-year average.
(B) SECRETARY.—The term ‘‘Secretary’’ means the Secretary of Agriculture.
(2) GRANT PROGRAM.—
(A) IN GENERAL.—Of the funds of the Commodity
Credit Corporation, the Secretary shall use not more than
$50,000,000, to remain available until September 30, 2010,
to carry out a program of grants to States to assist eligible
aquaculture producers for losses associated with high feed
input costs during the 2008 calendar year.
(B) NOTIFICATION.—Not later than 60 days after the
date of enactment of this Act, the Secretary shall notify
the State department of agriculture (or similar entity) in
each State of the availability of funds to assist eligible
aquaculture producers, including such terms as determined
by the Secretary to be necessary for the equitable treatment
of eligible aquaculture producers.
(C) PROVISION OF GRANTS.—
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123 STAT. 126
Deadline.
Deadlines.
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Reports.
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PUBLIC LAW 111–5—FEB. 17, 2009
(i) IN GENERAL.—The Secretary shall make grants
to States under this subsection on a pro rata basis
based on the amount of aquaculture feed used in each
State during the 2007 calendar year, as determined
by the Secretary.
(ii) TIMING.—Not later than 120 days after the
date of enactment of this Act, the Secretary shall make
grants to States to provide assistance under this subsection.
(D) REQUIREMENTS.—The Secretary shall make grants
under this subsection only to States that demonstrate to
the satisfaction of the Secretary that the State will—
(i) use grant funds to assist eligible aquaculture
producers;
(ii) provide assistance to eligible aquaculture producers not later than 60 days after the date on which
the State receives grant funds; and
(iii) not later than 30 days after the date on which
the State provides assistance to eligible aquaculture
producers, submit to the Secretary a report that
describes—
(I) the manner in which the State provided
assistance;
(II) the amounts of assistance provided per
species of aquaculture; and
(III) the process by which the State determined the levels of assistance to eligible aquaculture producers.
(3) REDUCTION IN PAYMENTS.—An eligible aquaculture producer that receives assistance under this subsection shall not
be eligible to receive any other assistance under the supplemental agricultural disaster assistance program established
under section 531 of the Federal Crop Insurance Act (7 U.S.C.
1531) and section 901 of the Trade Act of 1974 (19 U.S.C.
2497) for any losses in 2008 relating to the same species of
aquaculture.
(4) REPORT TO CONGRESS.—Not later than 180 days after
the date of enactment of this Act, the Secretary shall submit
to the appropriate committees of Congress a report that—
(A) describes in detail the manner in which this subsection has been carried out; and
(B) includes the information reported to the Secretary
under paragraph (2)(D)(iii).
SEC. 103. For fiscal years 2009 and 2010, in the case of each
program established or amended by the Food, Conservation, and
Energy Act of 2008 (Public Law 110–246), other than by title
I of such Act, that is authorized or required to be carried out
using funds of the Commodity Credit Corporation—
(1) such funds shall be available for the purpose of covering
salaries and related administrative expenses, including technical assistance, associated with the implementation of the
program, without regard to the limitation on the total amount
of allotments and fund transfers contained in section 11 of
the Commodity Credit Corporation Charter Act (15 U.S.C. 714i);
and
(2) the use of such funds for such purpose shall not be
considered to be a fund transfer or allotment for purposes
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 127
of applying the limitation on the total amount of allotments
and fund transfers contained in such section.
SEC. 104. In addition to other available funds, of the funds
made available to the Rural Development mission area in this
title, not more than 3 percent of the funds can be used for administrative costs to carry out loan, loan guarantee and grant activities
funded in this title, which shall be transferred to and merged
with the appropriation for ‘‘Rural Development, Salaries and
Expenses’’: Provided, That of this amount $1,750,000 shall be committed to agency projects associated with maintaining the compliance, safety, and soundness of the portfolio of loans guaranteed
through the section 502 guaranteed loan program.
SEC. 105. Of the amounts appropriated in this title to the
‘‘Rural Housing Service, Rural Community Facilities Program
Account’’, the ‘‘Rural Business-Cooperative Service, Rural Business
Program Account’’, and the ″Rural Utilities Service, Rural Water
and Waste Disposal Program Account’’, at least 10 percent shall
be allocated for assistance in persistent poverty counties: Provided,
That for the purposes of this section, the term ‘‘persistent poverty
counties’’ means any county that has had 20 percent or more
of its population living in poverty over the past 30 years, as measured by the 1980, 1990, and 2000 decennial censuses.
Definition.
TITLE II—COMMERCE, JUSTICE, SCIENCE, AND RELATED
AGENCIES
DEPARTMENT OF COMMERCE
ECONOMIC DEVELOPMENT ADMINISTRATION
ECONOMIC DEVELOPMENT ASSISTANCE PROGRAMS
For an additional amount for ‘‘Economic Development Assistance Programs’’, $150,000,000: Provided, That $50,000,000 shall
be for economic adjustment assistance as authorized by section
209 of the Public Works and Economic Development Act of 1965,
as amended (42 U.S.C. 3149): Provided further, That in allocating
the funds provided in the previous proviso, the Secretary of Commerce shall give priority consideration to areas of the Nation that
have experienced sudden and severe economic dislocation and job
loss due to corporate restructuring: Provided further, That not to
exceed 2 percent of the funds provided under this heading may
be transferred to and merged with the appropriation for ‘‘Salaries
and Expenses’’ for purposes of program administration and oversight: Provided further, That up to $50,000,000 of the funds provided
under this heading may be transferred to federally authorized
regional economic development commissions.
BUREAU
OF THE
CENSUS
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PERIODIC CENSUSES AND PROGRAMS
For an additional amount for ‘‘Periodic Censuses and Programs’’, $1,000,000,000.
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123 STAT. 128
PUBLIC LAW 111–5—FEB. 17, 2009
NATIONAL TELECOMMUNICATIONS AND INFORMATION
ADMINISTRATION
BROADBAND TECHNOLOGY OPPORTUNITIES PROGRAM
Grants.
Notification.
Deadline.
Applicability.
For an amount for ‘‘Broadband Technology Opportunities Program’’, $4,700,000,000: Provided, That of the funds provided under
this heading, not less than $4,350,000,000 shall be expended pursuant to division B of this Act, of which: not less than $200,000,000
shall be available for competitive grants for expanding public computer center capacity, including at community colleges and public
libraries; not less than $250,000,000 shall be available for competitive grants for innovative programs to encourage sustainable adoption of broadband service; and $10,000,000 shall be transferred
to ‘‘Department of Commerce, Office of Inspector General’’ for the
purposes of audits and oversight of funds provided under this
heading and such funds shall remain available until expended:
Provided further, That of the funds provided under this heading,
up to $350,000,000 may be expended pursuant to Public Law 110–
385 (47 U.S.C. 1301 note) and for the purposes of developing and
maintaining a broadband inventory map pursuant to division B
of this Act: Provided further, That of the funds provided under
this heading, amounts deemed necessary and appropriate by the
Secretary of Commerce, in consultation with the Federal Communications Commission (FCC), may be transferred to the FCC for
the purposes of developing a national broadband plan or for carrying
out any other FCC responsibilities pursuant to division B of this
Act, and only if the Committees on Appropriations of the House
and the Senate are notified not less than 15 days in advance
of the transfer of such funds: Provided further, That not more
than 3 percent of funds provided under this heading may be used
for administrative costs, and this limitation shall apply to funds
which may be transferred to the FCC.
DIGITAL-TO-ANALOG CONVERTER BOX PROGRAM
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Notification.
Deadline.
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For an amount for ‘‘Digital-to-Analog Converter Box Program’’,
$650,000,000, for additional coupons and related activities under
the program implemented under section 3005 of the Digital Television Transition and Public Safety Act of 2005: Provided, That
of the amounts provided under this heading, $90,000,000 may be
for education and outreach, including grants to organizations for
programs to educate vulnerable populations, including senior citizens, minority communities, people with disabilities, low-income
individuals, and people living in rural areas, about the transition
and to provide one-on-one assistance to vulnerable populations,
including help with converter box installation: Provided further,
That the amounts provided in the previous proviso may be transferred to the Federal Communications Commission (FCC) if deemed
necessary and appropriate by the Secretary of Commerce in consultation with the FCC, and only if the Committees on Appropriations of the House and the Senate are notified not less than 5
days in advance of transfer of such funds.
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PUBLIC LAW 111–5—FEB. 17, 2009
NATIONAL INSTITUTE
OF
STANDARDS
AND
123 STAT. 129
TECHNOLOGY
SCIENTIFIC AND TECHNICAL RESEARCH AND SERVICES
For an additional amount for ‘‘Scientific and Technical Research
and Services’’, $220,000,000.
CONSTRUCTION OF RESEARCH FACILITIES
For an additional amount for ‘‘Construction of Research Facilities’’, $360,000,000, of which $180,000,000 shall be for a competitive
construction grant program for research science buildings.
NATIONAL OCEANIC
AND
ATMOSPHERIC ADMINISTRATION
OPERATIONS, RESEARCH, AND FACILITIES
For an additional amount for ‘‘Operations, Research, and Facilities’’, $230,000,000.
PROCUREMENT, ACQUISITION AND CONSTRUCTION
For an additional amount for ‘‘Procurement, Acquisition and
Construction’’, $600,000,000.
OFFICE
OF INSPECTOR
GENERAL
For an additional amount for ‘‘Office of Inspector General’’,
$6,000,000, to remain available until September 30, 2013.
DEPARTMENT OF JUSTICE
GENERAL ADMINISTRATION
OFFICE OF INSPECTOR GENERAL
For an additional amount for ‘‘Office of Inspector General’’,
$2,000,000, to remain available until September 30, 2013.
STATE
AND
LOCAL LAW ENFORCEMENT ACTIVITIES
OFFICE
ON
VIOLENCE AGAINST WOMEN
Grants.
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VIOLENCE AGAINST WOMEN PREVENTION AND PROSECUTION
PROGRAMS
For an additional amount for ‘‘Violence Against Women Prevention and Prosecution Programs’’, $225,000,000 for grants to combat
violence against women, as authorized by part T of the Omnibus
Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796gg
et seq.): Provided, That, $50,000,000 shall be for transitional
housing assistance grants for victims of domestic violence, stalking
or sexual assault as authorized by section 40299 of the Violent
Crime Control and Law Enforcement Act of 1994 (Public Law
103–322).
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123 STAT. 130
PUBLIC LAW 111–5—FEB. 17, 2009
OFFICE
OF
JUSTICE PROGRAMS
STATE AND LOCAL LAW ENFORCEMENT ASSISTANCE
For an additional amount for ‘‘State and Local Law Enforcement Assistance’’, $2,000,000,000, for the Edward Byrne Memorial
Justice Assistance Grant program as authorized by subpart 1 of
part E of title I of the Omnibus Crime Control and Safe Streets
Acts of 1968 (‘‘1968 Act’’), (except that section 1001(c), and the
special rules for Puerto Rico under section 505(g), of the 1968
Act, shall not apply for purposes of this Act).
For an additional amount for ‘‘State and Local Law Enforcement Assistance’’, $225,000,000, for competitive grants to improve
the functioning of the criminal justice system, to assist victims
of crime (other than compensation), and youth mentoring grants.
For an additional amount for ‘‘State and Local Law Enforcement Assistance’’, $40,000,000, for competitive grants to provide
assistance and equipment to local law enforcement along the
Southern border and in High-Intensity Drug Trafficking Areas to
combat criminal narcotics activity stemming from the Southern
border, of which $10,000,000 shall be transferred to ‘‘Bureau of
Alcohol, Tobacco, Firearms and Explosives, Salaries and Expenses’’
for the ATF Project Gunrunner.
For an additional amount for ‘‘State and Local Law Enforcement Assistance’’, $225,000,000, for assistance to Indian tribes,
notwithstanding Public Law 108–199, division B, title I, section
112(a)(1) (118 Stat. 62), which shall be available for grants under
section 20109 of subtitle A of title II of the Violent Crime Control
and Law Enforcement Act of 1994 (Public Law 103–322).
For an additional amount for ‘‘State and Local Law Enforcement Assistance’’, $100,000,000, to be distributed by the Office
for Victims of Crime in accordance with section 1402(d)(4) of the
Victims of Crime Act of 1984 (Public Law 98–473).
For an additional amount for ‘‘State and Local Law Enforcement Assistance’’, $125,000,000, for assistance to law enforcement
in rural States and rural areas, to prevent and combat crime,
especially drug-related crime.
For an additional amount for ‘‘State and Local Law Enforcement Assistance’’, $50,000,000, for Internet Crimes Against Children (ICAC) initiatives.
COMMUNITY ORIENTED POLICING SERVICES
For an additional amount for ‘‘Community Oriented Policing
Services’’, for grants under section 1701 of title I of the 1968
Omnibus Crime Control and Safe Streets Act (42 U.S.C. 3796dd)
for hiring and rehiring of additional career law enforcement officers
under part Q of such title, notwithstanding subsection (i) of such
section, $1,000,000,000.
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SALARIES
AND
EXPENSES
For an additional amount, not elsewhere specified in this title,
for management and administration and oversight of programs
within the Office on Violence Against Women, the Office of Justice
Programs, and the Community Oriented Policing Services Office,
$10,000,000.
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 131
SCIENCE
NATIONAL AERONAUTICS
AND
SPACE ADMINISTRATION
SCIENCE
For an additional amount for ‘‘Science’’, $400,000,000.
AERONAUTICS
For an additional amount for ‘‘Aeronautics’’, $150,000,000.
EXPLORATION
For an additional amount for ‘‘Exploration’’, $400,000,000.
CROSS AGENCY SUPPORT
For an additional amount for ‘‘Cross Agency Support’’,
$50,000,000.
OFFICE OF INSPECTOR GENERAL
For an additional amount for ‘‘Office of Inspector General’’,
$2,000,000, to remain available until September 30, 2013.
NATIONAL SCIENCE FOUNDATION
RESEARCH AND RELATED ACTIVITIES
For an additional amount for ‘‘Research and Related Activities’’,
$2,500,000,000: Provided, That $300,000,000 shall be available
solely for the Major Research Instrumentation program and
$200,000,000 shall be for activities authorized by title II of Public
Law 100–570 for academic research facilities modernization.
EDUCATION AND HUMAN RESOURCES
For an additional amount
Resources’’, $100,000,000.
for
‘‘Education
and
Human
MAJOR RESEARCH EQUIPMENT AND FACILITIES CONSTRUCTION
For an additional amount for ‘‘Major Research Equipment and
Facilities Construction’’, $400,000,000.
OFFICE OF INSPECTOR GENERAL
For an additional amount for ‘‘Office of Inspector General’’,
$2,000,000, to remain available until September 30, 2013.
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GENERAL PROVISION—THIS TITLE
SEC. 201. Sections 1701(g) and 1704(c) of the Omnibus Crime
Control and Safe Streets Act of 1968 (42 U.S.C. 3796dd(g) and
3796dd–3(c)) shall not apply with respect to funds appropriated
in this or any other Act making appropriations for fiscal year
2009 or 2010 for Community Oriented Policing Services authorized
under part Q of such Act of 1968.
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123 STAT. 132
PUBLIC LAW 111–5—FEB. 17, 2009
TITLE III—DEPARTMENT OF DEFENSE
OPERATION AND MAINTENANCE
OPERATION
AND
MAINTENANCE, ARMY
For an additional amount for ‘‘Operation and Maintenance,
Army’’, $1,474,525,000, to remain available for obligation until September 30, 2010, to improve, repair and modernize Department
of Defense facilities, restore and modernize real property to include
barracks, and invest in the energy efficiency of Department of
Defense facilities.
OPERATION
AND
MAINTENANCE, NAVY
For an additional amount for ‘‘Operation and Maintenance,
Navy’’, $657,051,000, to remain available for obligation until September 30, 2010, to improve, repair and modernize Department
of Defense facilities, restore and modernize real property to include
barracks, and invest in the energy efficiency of Department of
Defense facilities.
OPERATION
AND
MAINTENANCE, MARINE CORPS
For an additional amount for ‘‘Operation and Maintenance,
Marine Corps’’, $113,865,000, to remain available for obligation
until September 30, 2010, to improve, repair and modernize Department of Defense facilities, restore and modernize real property
to include barracks, and invest in the energy efficiency of Department of Defense facilities.
OPERATION
AND
MAINTENANCE, AIR FORCE
For an additional amount for ‘‘Operation and Maintenance,
Air Force’’, $1,095,959,000, to remain available for obligation until
September 30, 2010, to improve, repair and modernize Department
of Defense facilities, restore and modernize real property to include
barracks, and invest in the energy efficiency of Department of
Defense facilities.
OPERATION
AND
MAINTENANCE, ARMY RESERVE
For an additional amount for ‘‘Operation and Maintenance,
Army Reserve’’, $98,269,000, to remain available for obligation until
September 30, 2010, to improve, repair and modernize Department
of Defense facilities, restore and modernize real property to include
barracks, and invest in the energy efficiency of Department of
Defense facilities.
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OPERATION
AND
MAINTENANCE, NAVY RESERVE
For an additional amount for ‘‘Operation and Maintenance,
Navy Reserve’’, $55,083,000, to remain available for obligation until
September 30, 2010, to improve, repair and modernize Department
of Defense facilities, restore and modernize real property to include
barracks, and invest in the energy efficiency of Department of
Defense facilities.
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PUBLIC LAW 111–5—FEB. 17, 2009
OPERATION
AND
123 STAT. 133
MAINTENANCE, MARINE CORPS RESERVE
For an additional amount for ‘‘Operation and Maintenance,
Marine Corps Reserve’’, $39,909,000, to remain available for obligation until September 30, 2010, to improve, repair and modernize
Department of Defense facilities, restore and modernize real property to include barracks, and invest in the energy efficiency of
Department of Defense facilities.
OPERATION
AND
MAINTENANCE, AIR FORCE RESERVE
For an additional amount for ‘‘Operation and Maintenance,
Air Force Reserve’’, $13,187,000, to remain available for obligation
until September 30, 2010, to improve, repair and modernize Department of Defense facilities, restore and modernize real property
to include barracks, and invest in the energy efficiency of Department of Defense facilities.
OPERATION
AND
MAINTENANCE, ARMY NATIONAL GUARD
For an additional amount for ‘‘Operation and Maintenance,
Army National Guard’’, $266,304,000, to remain available for obligation until September 30, 2010, to improve, repair and modernize
Department of Defense facilities, restore and modernize real property to include barracks, and invest in the energy efficiency of
Department of Defense facilities.
OPERATION
AND
MAINTENANCE, AIR NATIONAL GUARD
For an additional amount for ‘‘Operation and Maintenance,
Air National Guard’’, $25,848,000, to remain available for obligation
until September 30, 2010, to improve, repair and modernize Department of Defense facilities, restore and modernize real property
to include barracks, and invest in the energy efficiency of Department of Defense facilities.
RESEARCH, DEVELOPMENT, TEST AND EVALUATION
RESEARCH, DEVELOPMENT, TEST
AND
EVALUATION, ARMY
For an additional amount for ‘‘Research, Development, Test
and Evaluation, Army’’, $75,000,000, to remain available for obligation until September 30, 2010.
RESEARCH, DEVELOPMENT, TEST
AND
EVALUATION, NAVY
For an additional amount for ‘‘Research, Development, Test
and Evaluation, Navy’’, $75,000,000, to remain available for obligation until September 30, 2010.
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RESEARCH, DEVELOPMENT, TEST
AND
EVALUATION, AIR FORCE
For an additional amount for ‘‘Research, Development, Test
and Evaluation, Air Force’’, $75,000,000, to remain available for
obligation until September 30, 2010.
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123 STAT. 134
PUBLIC LAW 111–5—FEB. 17, 2009
RESEARCH, DEVELOPMENT, TEST
AND
EVALUATION, DEFENSE-WIDE
For an additional amount for ‘‘Research, Development, Test
and Evaluation, Defense-Wide’’, $75,000,000, to remain available
for obligation until September 30, 2010.
OTHER DEPARTMENT OF DEFENSE PROGRAMS
DEFENSE HEALTH PROGRAM
For an additional amount for ‘‘Defense Health Program’’,
$400,000,000 for operation and maintenance, to remain available
for obligation until September 30, 2010, to improve, repair and
modernize military medical facilities, and invest in the energy efficiency of military medical facilities.
OFFICE
OF THE INSPECTOR
GENERAL
For an additional amount for ‘‘Office of the Inspector General’’,
$15,000,000 for operation and maintenance, to remain available
for obligation until September 30, 2011.
TITLE IV—ENERGY AND WATER DEVELOPMENT
DEPARTMENT OF DEFENSE—CIVIL
DEPARTMENT
CORPS
OF
OF THE
ARMY
ENGINEERS—CIVIL
INVESTIGATIONS
Deadlines.
Reports.
For an additional amount for ‘‘Investigations’’, $25,000,000: Provided, That funds provided under this heading in this title shall
only be used for programs, projects or activities that heretofore
or hereafter receive funds provided in Acts making appropriations
available for Energy and Water Development: Provided further,
That funds provided under this heading in this title shall be used
for programs, projects or activities or elements of programs, projects
or activities that can be completed within the funds made available
in that account and that will not require new budget authority
to complete: Provided further, That for projects that are being
completed with funds appropriated in this Act that would otherwise
be expired for obligation, expired funds appropriated in this Act
may be used to pay the cost of associated supervision, inspection,
overhead, engineering and design on those projects and on subsequent claims, if any: Provided further, That the Secretary of the
Army shall submit a quarterly report to the Committees on Appropriations of the House of Representatives and the Senate detailing
the allocation, obligation and expenditures of these funds, beginning
not later than 45 days after enactment of this Act: Provided further,
That the Secretary shall have unlimited reprogramming authority
for these funds provided under this heading.
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CONSTRUCTION
For an additional amount for ‘‘Construction’’, $2,000,000,000:
Provided, That not less than $200,000,000 of the funds provided
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 135
shall be for water-related environmental infrastructure assistance:
Provided further, That section 102 of Public Law 109–103 (33 U.S.C.
2221) shall not apply to funds provided in this title: Provided
further, That notwithstanding any other provision of law, funds
provided in this paragraph shall not be cost shared with the Inland
Waterways Trust Fund as authorized in Public Law 99–662: Provided further, That funds provided under this heading in this title
shall only be used for programs, projects or activities that heretofore
or hereafter receive funds provided in Acts making appropriations
available for Energy and Water Development: Provided further,
That funds provided under this heading in this title shall be used
for programs, projects or activities or elements of programs, projects
or activities that can be completed within the funds made available
in that account and that will not require new budget authority
to complete: Provided further, That the limitation concerning total
project costs in section 902 of the Water Resources Development
Act of 1986, as amended (33 U.S.C. 2280), shall not apply during
fiscal year 2009 to any project that received funds provided in
this title: Provided further, That funds appropriated under this
heading may be used by the Secretary of the Army, acting through
the Chief of Engineers, to undertake work authorized to be carried
out in accordance with section 14 of the Flood Control Act of
1946 (33 U.S.C. 701r); section 205 of the Flood Control Act of
1948 (33 U.S.C. 701s); section 206 of the Water Resources Development Act of 1996 (33 U.S.C. 2330); or section 1135 of the Water
Resources Development Act of 1986 (33 U.S.C. 2309a), notwithstanding the program cost limitations set forth in those sections:
Provided further, That for projects that are being completed with
funds appropriated in this Act that would otherwise be expired
for obligation, expired funds appropriated in this Act may be used
to pay the cost of associated supervision, inspection, overhead,
engineering and design on those projects and on subsequent claims,
if any: Provided further, That the Secretary of the Army shall
submit a quarterly report to the Committees on Appropriations
of the House of Representatives and the Senate detailing the allocation, obligation and expenditures of these funds, beginning not
later than 45 days after enactment of this Act: Provided further,
That the Secretary shall have unlimited reprogramming authority
for these funds provided under this heading.
Deadlines.
Reports.
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MISSISSIPPI RIVER AND TRIBUTARIES
For an additional amount for ‘‘Mississippi River and Tributaries’’, $375,000,000: Provided, That funds provided under this
heading in this title shall only be used for programs, projects
or activities that heretofore or hereafter receive funds provided
in Acts making appropriations available for Energy and Water
Development: Provided further, That funds provided under this
heading in this title shall be used for programs, projects or activities
or elements of programs, projects or activities that can be completed
within the funds made available in that account and that will
not require new budget authority to complete: Provided further,
That the limitation concerning total project costs in section 902
of the Water Resources Development Act of 1986, as amended
(33 U.S.C. 2280), shall not apply during fiscal year 2009 to any
project that received funds provided in this title: Provided further,
That for projects that are being completed with funds appropriated
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Reports.
PUBLIC LAW 111–5—FEB. 17, 2009
in this Act that would otherwise be expired for obligation, expired
funds appropriated in this Act may be used to pay the cost of
associated supervision, inspection, overhead, engineering and design
on those projects and on subsequent claims, if any: Provided further,
That the Secretary of the Army shall submit a quarterly report
to the Committees on Appropriations of the House of Representatives and the Senate detailing the allocation, obligation and expenditures of these funds, beginning not later than 45 days after enactment of this Act: Provided further, That the Secretary shall have
unlimited reprogramming authority for these funds provided under
this heading.
OPERATION AND MAINTENANCE
Deadlines.
Reports.
For an additional amount for ‘‘Operation and Maintenance’’,
$2,075,000,000: Provided, That funds provided under this heading
in this title shall only be used for programs, projects or activities
that heretofore or hereafter receive funds provided in Acts making
appropriations available for Energy and Water Development: Provided further, That funds provided under this heading in this title
shall be used for programs, projects or activities or elements of
programs, projects or activities that can be completed within the
funds made available in that account and that will not require
new budget authority to complete: Provided further, That section
9006 of Public Law 110–114 shall not apply to funds provided
in this title: Provided further, That for projects that are being
completed with funds appropriated in this Act that would otherwise
be expired for obligation, expired funds appropriated in this Act
may be used to pay the cost of associated supervision, inspection,
overhead, engineering and design on those projects and on subsequent claims, if any: Provided further, That the Secretary of the
Army shall submit a quarterly report to the Committees on Appropriations of the House of Representatives and the Senate detailing
the allocation, obligation and expenditures of these funds, beginning
not later than 45 days after enactment of this Act: Provided further,
That the Secretary shall have unlimited reprogramming authority
for these funds provided under this heading.
REGULATORY PROGRAM
For an
$25,000,000.
additional
amount
for
‘‘Regulatory
Program’’,
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FORMERLY UTILIZED SITES REMEDIAL ACTION PROGRAM
Deadlines.
Reports.
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For an additional amount for ‘‘Formerly Utilized Sites Remedial
Action Program’’, $100,000,000: Provided, That funds provided
under this heading in this title shall be used for programs, projects
or activities or elements of programs, projects or activities that
can be completed within the funds made available in that account
and that will not require new budget authority to complete: Provided further, That for projects that are being completed with
funds appropriated in this Act that would otherwise be expired
for obligation, expired funds appropriated in this Act may be used
to pay the cost of associated supervision, inspection, overhead,
engineering and design on those projects and on subsequent claims,
if any: Provided further, That the Secretary of the Army shall
submit a quarterly report to the Committees on Appropriations
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of the House of Representatives and the Senate detailing the allocation, obligation and expenditures of these funds, beginning not
later than 45 days after enactment of this Act: Provided further,
That the Secretary shall have unlimited reprogramming authority
for these funds provided under this heading.
DEPARTMENT OF THE INTERIOR
BUREAU
OF
RECLAMATION
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WATER AND RELATED RESOURCES
For an additional amount for ‘‘Water and Related Resources’’,
$1,000,000,000: Provided, That of the amount appropriated under
this heading, not less than $126,000,000 shall be used for water
reclamation and reuse projects authorized under title XVI of Public
Law 102–575: Provided further, That funds provided in this Act
shall be used for elements of projects, programs or activities that
can be completed within these funding amounts and not create
budgetary obligations in future fiscal years: Provided further, That
$50,000,000 of the funds provided under this heading may be transferred to the Department of the Interior for programs, projects
and activities authorized by the Central Utah Project Completion
Act (titles II–V of Public Law 102–575): Provided further, That
$50,000,000 of the funds provided under this heading may be used
for programs, projects, and activities authorized by the California
Bay-Delta Restoration Act (Public Law 108–361): Provided further,
That not less than $60,000,000 of the funds provided under this
heading shall be used for rural water projects and shall be expended
primarily on water intake and treatment facilities of such projects:
Provided further, That not less than $10,000,000 of the funds provided under this heading shall be used for a bureau-wide inspection
of canals program in urbanized areas: Provided further, That the
costs of extraordinary maintenance and replacement activities carried out with funds provided in this Act shall be repaid pursuant
to existing authority, except the length of repayment period shall
be as determined by the Commissioner, but in no case shall the
repayment period exceed 50 years and the repayment shall include
interest, at a rate determined by the Secretary of the Treasury
as of the beginning of the fiscal year in which the work is commenced, on the basis of average market yields on outstanding
marketable obligations of the United States with the remaining
periods of maturity comparable to the applicable reimbursement
period of the project adjusted to the nearest one-eighth of 1 percent
on the unamortized balance of any portion of the loan: Provided
further, That for projects that are being completed with funds
appropriated in this Act that would otherwise be expired for obligation, expired funds appropriated in this Act may be used to pay
the cost of associated supervision, inspection, overhead, engineering
and design on those projects and on subsequent claims, if any:
Provided further, That the Secretary of the Interior shall submit
a quarterly report to the Committees on Appropriations of the
House of Representatives and the Senate detailing the allocation,
obligation and expenditures of these funds, beginning not later
than 45 days after enactment of this Act: Provided further, That
the Secretary shall have unlimited reprogramming authority for
these funds provided under this heading.
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PUBLIC LAW 111–5—FEB. 17, 2009
DEPARTMENT OF ENERGY
ENERGY PROGRAMS
ENERGY EFFICIENCY
Grants.
AND
For an additional amount for ‘‘Energy Efficiency and Renewable
Energy’’, $16,800,000,000: Provided, That $3,200,000,000 shall be
available for Energy Efficiency and Conservation Block Grants for
implementation of programs authorized under subtitle E of title
V of the Energy Independence and Security Act of 2007 (42 U.S.C.
17151 et seq.), of which $2,800,000,000 is available through the
formula in subtitle E: Provided further, That the Secretary may
use the most recent and accurate population data available to
satisfy the requirements of section 543(b) of the Energy Independence and Security Act of 2007: Provided further, That the remaining
$400,000,000 shall be awarded on a competitive basis: Provided
further, That $5,000,000,000 shall be for the Weatherization Assistance Program under part A of title IV of the Energy Conservation
and Production Act (42 U.S.C. 6861 et seq.): Provided further,
That $3,100,000,000 shall be for the State Energy Program authorized under part D of title III of the Energy Policy and Conservation
Act (42 U.S.C. 6321): Provided further, That $2,000,000,000 shall
be available for grants for the manufacturing of advanced batteries
and components and the Secretary shall provide facility funding
awards under this section to manufacturers of advanced battery
systems and vehicle batteries that are produced in the United
States, including advanced lithium ion batteries, hybrid electrical
systems, component manufacturers, and software designers: Provided further, That notwithstanding section 3304 of title 5, United
States Code, and without regard to the provisions of sections 3309
through 3318 of such title 5, the Secretary of Energy, upon a
determination that there is a severe shortage of candidates or
a critical hiring need for particular positions, may from within
the funds provided, recruit and directly appoint highly qualified
individuals into the competitive service: Provided further, That
such authority shall not apply to positions in the Excepted Service
or the Senior Executive Service: Provided further, That any action
authorized herein shall be consistent with the merit principles
of section 2301 of such title 5, and the Department shall comply
with the public notice requirements of section 3327 of such title
5.
ELECTRICITY DELIVERY
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RENEWABLE ENERGY
AND
ENERGY RELIABILITY
For an additional amount for ‘‘Electricity Delivery and Energy
Reliability,’’ $4,500,000,000: Provided, That funds shall be available
for expenses necessary for electricity delivery and energy reliability
activities to modernize the electric grid, to include demand responsive equipment, enhance security and reliability of the energy infrastructure, energy storage research, development, demonstration and
deployment, and facilitate recovery from disruptions to the energy
supply, and for implementation of programs authorized under title
XIII of the Energy Independence and Security Act of 2007 (42
U.S.C. 17381 et seq.): Provided further, That $100,000,000 shall
be available for worker training activities: Provided further, That
notwithstanding section 3304 of title 5, United States Code, and
without regard to the provisions of sections 3309 through 3318
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123 STAT. 139
of such title 5, the Secretary of Energy, upon a determination
that there is a severe shortage of candidates or a critical hiring
need for particular positions, may from within the funds provided,
recruit and directly appoint highly qualified individuals into the
competitive service: Provided further, That such authority shall
not apply to positions in the Excepted Service or the Senior Executive Service: Provided further, That any action authorized herein
shall be consistent with the merit principles of section 2301 of
such title 5, and the Department shall comply with the public
notice requirements of section 3327 of such title 5: Provided further,
That for the purpose of facilitating the development of regional
transmission plans, the Office of Electricity Delivery and Energy
Reliability within the Department of Energy is provided $80,000,000
within the available funds to conduct a resource assessment and
an analysis of future demand and transmission requirements after
consultation with the Federal Energy Regulatory Commission: Provided further, That the Office of Electricity Delivery and Energy
Reliability in coordination with the Federal Energy Regulatory
Commission will provide technical assistance to the North American
Electric Reliability Corporation, the regional reliability entities, the
States, and other transmission owners and operators for the formation of interconnection-based transmission plans for the Eastern
and Western Interconnections and ERCOT: Provided further, That
such assistance may include modeling, support to regions and States
for the development of coordinated State electricity policies, programs, laws, and regulations: Provided further, That $10,000,000
is provided to implement section 1305 of Public Law 110–140:
Provided further, That the Secretary of Energy may use or transfer
amounts provided under this heading to carry out new authority
for transmission improvements, if such authority is enacted in
any subsequent Act, consistent with existing fiscal management
practices and procedures.
FOSSIL ENERGY RESEARCH
AND
DEVELOPMENT
For an additional amount for ‘‘Fossil Energy Research and
Development’’, $3,400,000,000.
NON-DEFENSE ENVIRONMENTAL CLEANUP
For an additional amount for ‘‘Non-Defense Environmental
Cleanup’’, $483,000,000.
URANIUM ENRICHMENT DECONTAMINATION
FUND
AND
DECOMMISSIONING
For an additional amount for ‘‘Uranium Enrichment Decontamination and Decommissioning Fund’’, $390,000,000, of which
$70,000,000 shall be available in accordance with title X, subtitle
A of the Energy Policy Act of 1992.
SCIENCE
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For an additional amount for ‘‘Science’’, $1,600,000,000.
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PUBLIC LAW 111–5—FEB. 17, 2009
ADVANCED RESEARCH PROJECTS AGENCY—ENERGY
For the Advanced Research Projects Agency—Energy,
$400,000,000, as authorized under section 5012 of the America
COMPETES Act (42 U.S.C. 16538).
TITLE 17—INNOVATIVE TECHNOLOGY LOAN GUARANTEE PROGRAM
For an additional amount for the cost of guaranteed loans
authorized by section 1705 of the Energy Policy Act of 2005,
$6,000,000,000, available until expended, to pay the costs of guarantees made under this section: Provided, That of the amount provided
for title XVII, $25,000,000 shall be used for administrative expenses
in carrying out the guaranteed loan program: Provided further,
That of the amounts provided for title XVII, $10,000,000 shall
be transferred to and available for administrative expenses for
the Advanced Technology Vehicles Manufacturing Loan Program.
OFFICE
OF THE INSPECTOR
GENERAL
For necessary expenses of the Office of the Inspector General
in carrying out the provisions of the Inspector General Act of
1978, as amended, $15,000,000, to remain available until September
30, 2012.
ENVIRONMENTAL AND OTHER DEFENSE ACTIVITIES
DEFENSE ENVIRONMENTAL CLEANUP
For an additional amount
Cleanup,’’ $5,127,000,000.
for
‘‘Defense
Environmental
CONSTRUCTION, REHABILITATION, OPERATION, AND MAINTENANCE,
WESTERN AREA POWER ADMINISTRATION
For carrying out the functions authorized by title III, section
302(a)(1)(E) of the Act of August 4, 1977 (42 U.S.C. 7152), and
other related activities including conservation and renewable
resources programs as authorized, $10,000,000, to remain available
until expended: Provided, That the Administrator shall establish
such personnel staffing levels as he deems necessary to economically
and efficiently complete the activities pursued under the authority
granted by section 402 of this Act: Provided further, That this
appropriation is non-reimbursable.
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GENERAL PROVISIONS—THIS TITLE
SEC. 401. BONNEVILLE POWER ADMINISTRATION BORROWING
AUTHORITY. For the purposes of providing funds to assist in
financing the construction, acquisition, and replacement of the
transmission system of the Bonneville Power Administration and
to implement the authority of the Administrator of the Bonneville
Power Administration under the Pacific Northwest Electric Power
Planning and Conservation Act (16 U.S.C. 839 et seq.), an additional
$3,250,000,000 in borrowing authority is made available under the
Federal Columbia River Transmission System Act (16 U.S.C. 838
et seq.), to remain outstanding at any time.
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123 STAT. 141
SEC. 402. WESTERN AREA POWER ADMINISTRATION BORROWING
AUTHORITY. The Hoover Power Plant Act of 1984 (Public Law 98–
381) is amended by adding at the end the following:
‘‘TITLE III—BORROWING AUTHORITY
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‘‘SEC. 301. WESTERN AREA POWER ADMINISTRATION BORROWING
AUTHORITY.
‘‘(a) DEFINITIONS.—In this section:
‘‘(1) ADMINISTRATOR.—The term ‘Administrator’ means the
Administrator of the Western Area Power Administration.
‘‘(2) SECRETARY.—The term ‘Secretary’ means the Secretary
of the Treasury.
‘‘(b) AUTHORITY.—
‘‘(1) IN GENERAL.—Notwithstanding any other provision of
law, subject to paragraphs (2) through (5)—
‘‘(A) the Western Area Power Administration may borrow funds from the Treasury; and
‘‘(B) the Secretary shall, without further appropriation
and without fiscal year limitation, loan to the Western
Area Power Administration, on such terms as may be fixed
by the Administrator and the Secretary, such sums (not
to exceed, in the aggregate (including deferred interest),
$3,250,000,000 in outstanding repayable balances at any
one time) as, in the judgment of the Administrator, are
from time to time required for the purpose of—
‘‘(i) constructing, financing, facilitating, planning,
operating, maintaining, or studying construction of new
or upgraded electric power transmission lines and
related facilities with at least one terminus within
the area served by the Western Area Power Administration; and
‘‘(ii) delivering or facilitating the delivery of power
generated by renewable energy resources constructed
or reasonably expected to be constructed after the date
of enactment of this section.
‘‘(2) INTEREST.—The rate of interest to be charged in
connection with any loan made pursuant to this subsection
shall be fixed by the Secretary, taking into consideration market
yields on outstanding marketable obligations of the United
States of comparable maturities as of the date of the loan.
‘‘(3) REFINANCING.—The Western Area Power Administration may refinance loans taken pursuant to this section within
the Treasury.
‘‘(4) PARTICIPATION.—The Administrator may permit other
entities to participate in the financing, construction and ownership projects financed under this section.
‘‘(5) CONGRESSIONAL REVIEW OF DISBURSEMENT.—Effective
upon the date of enactment of this section, the Administrator
shall have the authority to have utilized $1,750,000,000 at
any one time. If the Administrator seeks to borrow funds above
$1,750,000,000, the funds will be disbursed unless there is
enacted, within 90 calendar days of the first such request,
a joint resolution that rescinds the remainder of the balance
of the borrowing authority provided in this section.
‘‘(c) TRANSMISSION LINE AND RELATED FACILITY PROJECTS.—
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42 USC 16421a.
Effective date.
Deadline.
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123 STAT. 142
PUBLIC LAW 111–5—FEB. 17, 2009
‘‘(1) IN GENERAL.—For repayment purposes, each transmission line and related facility project in which the Western
Area Power Administration participates pursuant to this section
shall be treated as separate and distinct from—
‘‘(A) each other such project; and
‘‘(B) all other Western Area Power Administration
power and transmission facilities.
‘‘(2) PROCEEDS.—The Western Area Power Administration
shall apply the proceeds from the use of the transmission
capacity from an individual project under this section to the
repayment of the principal and interest of the loan from the
Treasury attributable to that project, after reserving such funds
as the Western Area Power Administration determines are
necessary—
‘‘(A) to pay for any ancillary services that are provided;
and
‘‘(B) to meet the costs of operating and maintaining
the new project from which the revenues are derived.
‘‘(3) SOURCE OF REVENUE.—Revenue from the use of projects
under this section shall be the only source of revenue for—
‘‘(A) repayment of the associated loan for the project;
and
‘‘(B) payment of expenses for ancillary services and
operation and maintenance.
‘‘(4) LIMITATION ON AUTHORITY.—Nothing in this section
confers on the Administrator any additional authority or obligation to provide ancillary services to users of transmission facilities developed under this section.
‘‘(5) TREATMENT OF CERTAIN REVENUES.—Revenue from
ancillary services provided by existing Federal power systems
to users of transmission projects funded pursuant to this section
shall be treated as revenue to the existing power system that
provided the ancillary services.
‘‘(d) CERTIFICATION.—
‘‘(1) IN GENERAL.—For each project in which the Western
Area Power Administration participates pursuant to this section, the Administrator shall certify, prior to committing funds
for any such project, that—
‘‘(A) the project is in the public interest;
‘‘(B) the project will not adversely impact system reliability or operations, or other statutory obligations; and
‘‘(C) it is reasonable to expect that the proceeds from
the project shall be adequate to make repayment of the
loan.
‘‘(2) FORGIVENESS OF BALANCES.—
‘‘(A) IN GENERAL.—If, at the end of the useful life
of a project, there is a remaining balance owed to the
Treasury under this section, the balance shall be forgiven.
‘‘(B) UNCONSTRUCTED PROJECTS.—Funds expended to
study projects that are considered pursuant to this section
but that are not constructed shall be forgiven.
‘‘(C) NOTIFICATION.—The Administrator shall notify the
Secretary of such amounts as are to be forgiven under
this paragraph.
‘‘(e) PUBLIC PROCESSES.—
‘‘(1) POLICIES AND PRACTICES.—Prior to requesting any
loans under this section, the Administrator shall use a public
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 143
process to develop practices and policies that implement the
authority granted by this section.
‘‘(2) REQUESTS FOR INTEREST.—In the course of selecting
potential projects to be funded under this section, the Administrator shall seek Requests For Interest from entities interested
in identifying potential projects through one or more notices
published in the Federal Register.’’
SEC. 403. SET-ASIDE FOR MANAGEMENT AND OVERSIGHT. Up
to 0.5 percent of each amount appropriated in this title may be
used for the expenses of management and oversight of the programs,
grants, and activities funded by such appropriation, and may be
transferred by the head of the Federal department or agency
involved to any other appropriate account within the department
or agency for that purpose: Provided, That the Secretary will provide
a report to the Committees on Appropriations of the House of
Representatives and the Senate 30 days prior to the transfer: Provided further, That funds set aside under this section shall remain
available for obligation until September 30, 2012.
SEC. 404. TECHNICAL CORRECTIONS TO THE ENERGY INDEPENDENCE AND SECURITY ACT OF 2007. (a) Section 543(a) of the Energy
Independence and Security Act of 2007 (42 U.S.C. 17153(a)) is
amended—
(1) by redesignating paragraphs (2) through (4) as paragraphs (3) through (5), respectively; and
(2) by striking paragraph (1) and inserting the following:
‘‘(1) 34 percent to eligible units of local government—alternative 1, in accordance with subsection (b);
‘‘(2) 34 percent to eligible units of local government—alternative 2, in accordance with subsection (b);’’.
(b) Section 543(b) of the Energy Independence and Security
Act of 2007 (42 U.S.C. 17153(b)) is amended by striking ‘‘subsection
(a)(1)’’ and inserting ‘‘subsection (a)(1) or (2)’’.
(c) Section 548(a)(1) of the Energy Independence and Security
Act of 2007 (42 U.S.C. 17158(a)(1)) is amending by striking ‘‘;
provided’’ and all that follows through ‘‘541(3)(B)’’.
SEC. 405. AMENDMENTS TO TITLE XIII OF THE ENERGY
INDEPENDENCE AND SECURITY ACT OF 2007. Title XIII of the Energy
Independence and Security Act of 2007 (42 U.S.C. 17381 and following) is amended as follows:
(1) By amending subparagraph (A) of section 1304(b)(3)
to read as follows:
‘‘(A) IN GENERAL.—In carrying out the initiative, the
Secretary shall provide financial support to smart grid
demonstration projects in urban, suburban, tribal, and
rural areas, including areas where electric system assets
are controlled by nonprofit entities and areas where electric
system assets are controlled by investor-owned utilities.’’.
(2) By amending subparagraph (C) of section 1304(b)(3)
to read as follows:
‘‘(C) FEDERAL SHARE OF COST OF TECHNOLOGY INVESTMENTS.—The Secretary shall provide to an electric utility
described in subparagraph (B) or to other parties financial
assistance for use in paying an amount equal to not more
than 50 percent of the cost of qualifying advanced grid
technology investments made by the electric utility or other
party to carry out a demonstration project.’’.
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Notice.
Federal Register,
publication.
Reports.
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42 USC 17384.
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Clearinghouse.
42 USC 17384.
42 USC 17386.
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PUBLIC LAW 111–5—FEB. 17, 2009
(3) By inserting after section 1304(b)(3)(D) the following
new subparagraphs:
‘‘(E) AVAILABILITY OF DATA.—The Secretary shall establish and maintain a smart grid information clearinghouse
in a timely manner which will make data from smart
grid demonstration projects and other sources available
to the public. As a condition of receiving financial assistance
under this subsection, a utility or other participant in
a smart grid demonstration project shall provide such
information as the Secretary may require to become available through the smart grid information clearinghouse in
the form and within the timeframes as directed by the
Secretary. The Secretary shall assure that business proprietary information and individual customer information is
not included in the information made available through
the clearinghouse.
‘‘(F) OPEN PROTOCOLS AND STANDARDS.—The Secretary
shall require as a condition of receiving funding under
this subsection that demonstration projects utilize open
protocols and standards (including Internet-based protocols
and standards) if available and appropriate.’’.
(4) By amending paragraph (2) of section 1304(c) to read
as follows:
‘‘(2) to carry out subsection (b), such sums as may be
necessary.’’.
(5) By amending subsection (a) of section 1306 by striking
‘‘reimbursement of one-fifth (20 percent)’’ and inserting ‘‘grants
of up to one-half (50 percent)’’.
(6) By striking the last sentence of subsection (b)(9) of
section 1306.
(7) By striking ‘‘are eligible for’’ in subsection (c)(1) of
section 1306 and inserting ‘‘utilize’’.
(8) By amending subsection (e) of section 1306 to read
as follows:
‘‘(e) PROCEDURES AND RULES.—(1) The Secretary shall, within
60 days after the enactment of the American Recovery and Reinvestment Act of 2009, by means of a notice of intent and subsequent
solicitation of grant proposals—
‘‘(A) establish procedures by which applicants can obtain
grants of not more than one-half of their documented costs;
‘‘(B) require as a condition of receiving funding under this
subsection that demonstration projects utilize open protocols
and standards (including Internet-based protocols and standards) if available and appropriate;
‘‘(C) establish procedures to ensure that there is no duplication or multiple payment for the same investment or costs,
that the grant goes to the party making the actual expenditures
for the qualifying Smart Grid investments, and that the grants
made have a significant effect in encouraging and facilitating
the development of a smart grid;
‘‘(D) establish procedures to ensure there will be public
records of grants made, recipients, and qualifying Smart Grid
investments which have received grants; and
‘‘(E) establish procedures to provide advance payment of
moneys up to the full amount of the grant award.
‘‘(2) The Secretary shall have discretion and exercise reasonable
judgment to deny grants for investments that do not qualify.’’.
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 145
SEC. 406.
MISSION LOAN
RENEWABLE ENERGY AND ELECTRIC POWER TRANSGUARANTEE PROGRAM. (a) AMENDMENT.—Title XVII
of the Energy Policy Act of 2005 (42 U.S.C. 16511 et seq.) is
amended by adding the following at the end:
‘‘SEC. 1705. TEMPORARY PROGRAM FOR RAPID DEPLOYMENT OF
RENEWABLE ENERGY AND ELECTRIC POWER TRANSMISSION PROJECTS.
42 USC 16516.
‘‘(a) IN GENERAL.—Notwithstanding section 1703, the Secretary
may make guarantees under this section only for the following
categories of projects that commence construction not later than
September 30, 2011:
‘‘(1) Renewable energy systems, including incremental
hydropower, that generate electricity or thermal energy, and
facilities that manufacture related components.
‘‘(2) Electric power transmission systems, including
upgrading and reconductoring projects.
‘‘(3) Leading edge biofuel projects that will use technologies
performing at the pilot or demonstration scale that the Secretary determines are likely to become commercial technologies
and will produce transportation fuels that substantially reduce
life-cycle greenhouse gas emissions compared to other transportation fuels.
‘‘(b) FACTORS RELATING TO ELECTRIC POWER TRANSMISSION SYSTEMS.—In determining to make guarantees to projects described
in subsection (a)(2), the Secretary may consider the following factors:
‘‘(1) The viability of the project without guarantees.
‘‘(2) The availability of other Federal and State incentives.
‘‘(3) The importance of the project in meeting reliability
needs.
‘‘(4) The effect of the project in meeting a State or region’s
environment (including climate change) and energy goals.
‘‘(c) WAGE RATE REQUIREMENTS.—The Secretary shall require
that each recipient of support under this section provide reasonable
assurance that all laborers and mechanics employed in the performance of the project for which the assistance is provided, including
those employed by contractors or subcontractors, will be paid wages
at rates not less than those prevailing on similar work in the
locality as determined by the Secretary of Labor in accordance
with subchapter IV of chapter 31 of part A of subtitle II of title
40, United States Code (commonly referred to as the ‘Davis-Bacon
Act’).
‘‘(d) LIMITATION.—Funding under this section for projects
described in subsection (a)(3) shall not exceed $500,000,000.
‘‘(e) SUNSET.—The authority to enter into guarantees under
this section shall expire on September 30, 2011.’’.
(b) TABLE OF CONTENTS AMENDMENT.—The table of contents
for the Energy Policy Act of 2005 is amended by inserting after
the item relating to section 1704 the following new item:
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‘‘Sec. 1705. Temporary program for rapid deployment of renewable energy and electric power transmission projects.’’.
SEC. 407. WEATHERIZATION ASSISTANCE PROGRAM AMENDMENTS. (a) INCOME LEVEL.—Section 412(7) of the Energy Conserva-
tion and Production Act (42 U.S.C. 6862(7)) is amended by striking
‘‘150 percent’’ both places it appears and inserting ‘‘200 percent’’.
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Notification.
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PUBLIC LAW 111–5—FEB. 17, 2009
(b) ASSISTANCE LEVEL PER DWELLING UNIT.—Section 415(c)(1)
of the Energy Conservation and Production Act (42 U.S.C.
6865(c)(1)) is amended by striking ‘‘$2,500’’ and inserting ‘‘$6,500’’.
(c) EFFECTIVE USE OF FUNDS.—In providing funds made available by this Act for the Weatherization Assistance Program, the
Secretary may encourage States to give priority to using such
funds for the most cost-effective efficiency activities, which may
include insulation of attics, if, in the Secretary’s view, such use
of funds would increase the effectiveness of the program.
(d) TRAINING AND TECHNICAL ASSISTANCE.—Section 416 of the
Energy Conservation and Production Act (42 U.S.C. 6866) is
amended by striking ‘‘10 percent’’ and inserting ‘‘up to 20 percent’’.
(e) ASSISTANCE FOR PREVIOUSLY WEATHERIZED DWELLING
UNITS.—Section 415(c)(2) of the Energy Conservation and Production Act (42 U.S.C. 6865(c)(2)) is amended by striking ‘‘September
30, 1979’’ and inserting ‘‘September 30, 1994’’.
SEC. 408. TECHNICAL CORRECTIONS TO PUBLIC UTILITY REGULATORY POLICIES ACT OF 1978. (a) Section 111(d) of the Public
Utility Regulatory Policies Act of 1978 (16 U.S.C. 2621(d)) is
amended by redesignating paragraph (16) relating to consideration
of smart grid investments (added by section 1307(a) of Public Law
110–140) as paragraph (18) and by redesignating paragraph (17)
relating to smart grid information (added by section 1308(a) of
Public Law 110–140) as paragraph (19).
(b) Subsections (b) and (d) of section 112 of the Public Utility
Regulatory Policies Act of 1978 (16 U.S.C. 2622) are each amended
by striking ‘‘(17) through (18)’’ in each place it appears and inserting
‘‘(16) through (19)’’.
SEC. 409. RENEWABLE ELECTRICITY TRANSMISSION STUDY. In
completing the 2009 National Electric Transmission Congestion
Study, the Secretary of Energy shall include—
(1) an analysis of the significant potential sources of renewable energy that are constrained in accessing appropriate
market areas by lack of adequate transmission capacity;
(2) an analysis of the reasons for failure to develop the
adequate transmission capacity;
(3) recommendations for achieving adequate transmission
capacity;
(4) an analysis of the extent to which legal challenges
filed at the State and Federal level are delaying the construction of transmission necessary to access renewable energy; and
(5) an explanation of assumptions and projections made
in the Study, including—
(A) assumptions and projections relating to energy efficiency improvements in each load center;
(B) assumptions and projections regarding the location
and type of projected new generation capacity; and
(C) assumptions and projections regarding projected
deployment of distributed generation infrastructure.
SEC. 410. ADDITIONAL STATE ENERGY GRANTS. (a) IN GENERAL.—Amounts appropriated under the heading ‘‘Department of
Energy—Energy Programs—Energy Efficiency and Renewable
Energy’’ in this title shall be available to the Secretary of Energy
for making additional grants under part D of title III of the Energy
Policy and Conservation Act (42 U.S.C. 6321 et seq.). The Secretary
shall make grants under this section in excess of the base allocation
established for a State under regulations issued pursuant to the
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 147
authorization provided in section 365(f) of such Act only if the
governor of the recipient State notifies the Secretary of Energy
in writing that the governor has obtained necessary assurances
that each of the following will occur:
(1) The applicable State regulatory authority will seek to
implement, in appropriate proceedings for each electric and
gas utility, with respect to which the State regulatory authority
has ratemaking authority, a general policy that ensures that
utility financial incentives are aligned with helping their customers use energy more efficiently and that provide timely
cost recovery and a timely earnings opportunity for utilities
associated with cost-effective measurable and verifiable efficiency savings, in a way that sustains or enhances utility
customers’ incentives to use energy more efficiently.
(2) The State, or the applicable units of local government
that have authority to adopt building codes, will implement
the following:
(A) A building energy code (or codes) for residential
buildings that meets or exceeds the most recently published
International Energy Conservation Code, or achieves
equivalent or greater energy savings.
(B) A building energy code (or codes) for commercial
buildings throughout the State that meets or exceeds the
ANSI/ASHRAE/IESNA Standard 90.1–2007, or achieves
equivalent or greater energy savings.
(C) A plan for the jurisdiction achieving compliance
with the building energy code or codes described in subparagraphs (A) and (B) within 8 years of the date of enactment of this Act in at least 90 percent of new and renovated
residential and commercial building space. Such plan shall
include active training and enforcement programs and
measurement of the rate of compliance each year.
(3) The State will to the extent practicable prioritize the
grants toward funding energy efficiency and renewable energy
programs, including—
(A) the expansion of existing energy efficiency programs approved by the State or the appropriate regulatory
authority, including energy efficiency retrofits of buildings
and industrial facilities, that are funded—
(i) by the State; or
(ii) through rates under the oversight of the
applicable regulatory authority, to the extent
applicable;
(B) the expansion of existing programs, approved by
the State or the appropriate regulatory authority, to support renewable energy projects and deployment activities,
including programs operated by entities which have the
authority and capability to manage and distribute grants,
loans, performance incentives, and other forms of financial
assistance; and
(C) cooperation and joint activities between States to
advance more efficient and effective use of this funding
to support the priorities described in this paragraph.
(b) STATE MATCH.—The State cost share requirement under
the item relating to ‘‘Department of Energy; Energy Conservation’’
in title II of the Department of the Interior and Related Agencies
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123 STAT. 148
PUBLIC LAW 111–5—FEB. 17, 2009
Appropriations Act, 1985 (42 U.S.C. 6323a; 98 Stat. 1861) shall
not apply to assistance provided under this section.
(c) EQUIPMENT AND MATERIALS FOR ENERGY EFFICIENCY MEASURES AND RENEWABLE ENERGY MEASURES.—No limitation on the
percentage of funding that may be used for the purchase and
installation of equipment and materials for energy efficiency measures and renewable energy measures under grants provided under
part D of title III of the Energy Policy and Conservation Act
(42 U.S.C. 6321 et seq.) shall apply to assistance provided under
this section.
TITLE V—FINANCIAL SERVICES AND GENERAL
GOVERNMENT
DEPARTMENT OF THE TREASURY
TREASURY INSPECTOR GENERAL
FOR
TAX ADMINISTRATION
SALARIES AND EXPENSES
For an additional amount for necessary expenses of the
Treasury Inspector General for Tax Administration in carrying
out the Inspector General Act of 1978, $7,000,000, to remain available until September 30, 2013, for oversight and audits of the
administration of the making work pay tax credit and economic
recovery payments under the American Recovery and Reinvestment
Act of 2009.
COMMUNITY DEVELOPMENT FINANCIAL INSTITUTIONS FUND
PROGRAM ACCOUNT
Waiver.
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For an additional amount for ‘‘Community Development Financial Institutions Fund Program Account’’, $100,000,000, to remain
available until September 30, 2010, for qualified applicants under
the fiscal year 2009 funding round of the Community Development
Financial Institutions Program, of which up to $8,000,000 may
be for financial assistance, technical assistance, training and outreach programs designed to benefit Native American, Native
Hawaiian, and Alaskan Native communities and provided primarily
through qualified community development lender organizations
with experience and expertise in community development banking
and lending in Indian country, Native American organizations,
tribes and tribal organizations and other suitable providers and
up to $2,000,000 may be used for administrative expenses: Provided,
That for the purpose of the fiscal year 2009 funding round, the
following statutory provisions are hereby waived: 12 U.S.C. 4707(e)
and 12 U.S.C. 4707(d): Provided further, That no awardee, together
with its subsidiaries and affiliates, may be awarded more than
5 percent of the aggregate funds available during fiscal year 2009
from the Community Development Financial Institutions Program:
Provided further, That no later than 60 days after the date of
enactment of this Act, the Department of the Treasury shall submit
to the Committees on Appropriations of the House of Representatives and the Senate a detailed expenditure plan for funds provided
under this heading.
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 149
INTERNAL REVENUE SERVICE
HEALTH INSURANCE TAX CREDIT ADMINISTRATION
For an additional amount to implement the health insurance
tax credit under the TAA Health Coverage Improvement Act of
2009, $80,000,000, to remain available until September 30, 2010.
GENERAL SERVICES ADMINISTRATION
REAL PROPERTY ACTIVITIES
FEDERAL BUILDINGS FUND
LIMITATIONS ON AVAILABILITY OF REVENUE
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(INCLUDING TRANSFER OF FUNDS)
For an additional amount to be deposited in the Federal
Buildings Fund, $5,550,000,000, to carry out the purposes of the
Fund, of which not less than $750,000,000 shall be available for
Federal buildings and United States courthouses, not less than
$300,000,000 shall be available for border stations and land ports
of entry, and not less than $4,500,000,000 shall be available for
measures necessary to convert GSA facilities to High-Performance
Green Buildings, as defined in section 401 of Public Law 110–
140: Provided, That not to exceed $108,000,000 of the amounts
provided under this heading may be expended for rental of space,
related to leasing of temporary space in connection with projects
funded under this heading: Provided further, That not to exceed
$127,000,000 of the amounts provided under this heading may
be expended for building operations, for the administrative costs
of completing projects funded under this heading: Provided further,
That not to exceed $3,000,000 of the funds provided shall be for
on-the-job pre-apprenticeship and apprenticeship training programs
registered with the Department of Labor, for the construction,
repair, and alteration of Federal buildings: Provided further, That
not less than $5,000,000,000 of the funds provided under this
heading shall be obligated by September 30, 2010, and the
remainder of the funds provided under this heading shall be obligated not later than September 30, 2011: Provided further, That
the Administrator of General Services is authorized to initiate
design, construction, repair, alteration, and other projects through
existing authorities of the Administrator: Provided further, That
the General Services Administration shall submit a detailed plan,
by project, regarding the use of funds made available in this Act
to the Committees on Appropriations of the House of Representatives and the Senate within 45 days of enactment of this Act,
and shall provide notification to the Committees within 15 days
prior to any changes regarding the use of these funds: Provided
further, That, hereafter, the Administrator shall report to the
Committees on the obligation of these funds on a quarterly basis
beginning on June 30, 2009: Provided further, That of the amounts
provided, $4,000,000 shall be transferred to and merged with
‘‘Government-Wide Policy’’, for the Office of Federal High-Performance Green Buildings as authorized in the Energy Independence
and Security Act of 2007 (Public Law 110–140): Provided further,
That amounts provided under this heading that are savings or
cannot be used for the activity for which originally obligated may
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Plans.
Deadlines.
Notification.
Reports.
Deadlines.
Deadline.
Notification.
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PUBLIC LAW 111–5—FEB. 17, 2009
be deobligated and, notwithstanding any other provision of law,
reobligated for the purposes identified in the plan required under
this heading not less than 15 days after notification has been
provided to the Committees on Appropriations of the House of
Representatives and the Senate.
ENERGY-EFFICIENT FEDERAL MOTOR VEHICLE FLEET PROCUREMENT
Deadline.
Expenditure
plan.
Reports.
Deadlines.
For capital expenditures and necessary expenses of acquiring
motor vehicles with higher fuel economy, including: hybrid vehicles;
electric vehicles; and commercially-available, plug-in hybrid
vehicles, $300,000,000, to remain available until September 30,
2011: Provided, That none of these funds may be obligated until
the Administrator of General Services submits to the Committees
on Appropriations of the House of Representatives and the Senate,
within 90 days after enactment of this Act, a plan for expenditure
of the funds that details the current inventory of the Federal
fleet owned by the General Services Administration, as well as
other Federal agencies, and the strategy to expend these funds
to replace a portion of the Federal fleet with the goal of substantially
increasing energy efficiency over the current status, including
increasing fuel efficiency and reducing emissions: Provided further,
That, hereafter, the Administrator shall report to the Committees
on the obligation of these funds on a quarterly basis beginning
on September 30, 2009.
OFFICE
OF INSPECTOR
GENERAL
For an additional amount for the Office of the Inspector General, to remain available until September 30, 2013, for oversight
and audit of programs, grants, and projects funded under this
title, $7,000,000.
RECOVERY ACT ACCOUNTABILITY AND TRANSPARENCY
BOARD
For necessary expenses of the Recovery Act Accountability and
Transparency Board to carry out the provisions of title XV of
this Act, $84,000,000, to remain available until September 30, 2011.
SMALL BUSINESS ADMINISTRATION
SALARIES
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AND
EXPENSES
For an additional amount, to remain available until September
30, 2010, $69,000,000, of which $24,000,000 is for marketing,
management, and technical assistance under section 7(m) of the
Small Business Act (15 U.S.C. 636(m)(4)) by intermediaries that
make microloans under the microloan program, and of which
$20,000,000 is for improving, streamlining, and automating
information technology systems related to lender processes and
lender oversight: Provided, That no later than 60 days after the
date of enactment of this Act, the Small Business Administration
shall submit to the Committees on Appropriations of the House
of Representatives and the Senate a detailed expenditure plan
for funds provided under the heading ‘‘Small Business Administration’’ in this Act.
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PUBLIC LAW 111–5—FEB. 17, 2009
OFFICE
OF INSPECTOR
123 STAT. 151
GENERAL
For an additional amount for the Office of Inspector General
in carrying out the provisions of the Inspector General Act of
1978, $10,000,000, to remain available until September 30, 2013,
for oversight and audit of programs, grants, and projects funded
under this title.
SURETY BOND GUARANTEES REVOLVING FUND
For additional capital for the Surety Bond Guarantees
Revolving Fund, authorized by the Small Business Investment Act
of 1958, $15,000,000, to remain available until expended.
BUSINESS LOANS PROGRAM ACCOUNT
For an additional amount for the cost of direct loans,
$6,000,000, to remain available until September 30, 2010, and
for an additional amount for the cost of guaranteed loans,
$630,000,000, to remain available until September 30, 2010: Provided, That of the amount for the cost of guaranteed loans,
$375,000,000 shall be for reimbursements, loan subsidies and loan
modifications for loans to small business concerns authorized in
section 501 of this title; and $255,000,000 shall be for loan subsidies
and loan modifications for loans to small business concerns authorized in section 506 of this title: Provided further, That such costs,
including the cost of modifying such loans, shall be as defined
in section 502 of the Congressional Budget Act of 1974.
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ADMINISTRATIVE PROVISIONS—SMALL BUSINESS ADMINISTRATION
SEC. 501. FEE REDUCTIONS. (a) ADMINISTRATIVE PROVISIONS
SMALL BUSINESS ADMINISTRATION.—Until September 30, 2010, and
to the extent that the cost of such elimination or reduction of
fees is offset by appropriations, with respect to each loan guaranteed
under section 7(a) of the Small Business Act (15 U.S.C. 636(a))
and section 502 of this title, for which the application is approved
on or after the date of enactment of this Act, the Administrator
shall—
(1) in lieu of the fee otherwise applicable under section
7(a)(23)(A) of the Small Business Act (15 U.S.C. 636(a)(23)(A)),
collect no fee or reduce fees to the maximum extent possible;
and
(2) in lieu of the fee otherwise applicable under section
7(a)(18)(A) of the Small Business Act (15 U.S.C. 636(a)(18)(A)),
collect no fee or reduce fees to the maximum extent possible.
(b) TEMPORARY FEE ELIMINATION FOR THE 504 LOAN PROGRAM.—
(1) IN GENERAL.—Until September 30, 2010, and to the
extent the cost of such elimination in fees is offset by appropriations, with respect to each project or loan guaranteed by the
Administrator pursuant to title V of the Small Business Investment Act of 1958 (15 U.S.C. 695 et seq.) for which an application
is approved or pending approval on or after the date of enactment of this Act—
(A) the Administrator shall, in lieu of the fee otherwise
applicable under section 503(d)(2) of the Small Business
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123 STAT. 152
PUBLIC LAW 111–5—FEB. 17, 2009
Investment Act of 1958 (15 U.S.C. 697(d)(2)), collect no
fee;
(B) a development company shall, in lieu of the processing fee under section 120.971(a)(1) of title 13, Code
of Federal Regulations (relating to fees paid by borrowers),
or any successor thereto, collect no fee.
(2) REIMBURSEMENT FOR WAIVED FEES.—
(A) IN GENERAL.—To the extent that the cost of such
payments is offset by appropriations, the Administrator
shall reimburse each development company that does not
collect a processing fee pursuant to paragraph (1)(B).
(B) AMOUNT.—The payment to a development company
under subparagraph (A) shall be in an amount equal to
1.5 percent of the net debenture proceeds for which the
development company does not collect a processing fee
pursuant to paragraph (1)(B).
(c) APPLICATION OF FEE ELIMINATIONS.—
(1) To the extent that amounts are made available to
the Administrator for the purpose of fee eliminations or reductions under subsection (a), the Administrator shall—
(A) first use any amounts provided to eliminate or
reduce fees paid by small business borrowers under clauses
(i) through (iii) of paragraph (18)(A), to the maximum
extent possible; and
(B) then use any amounts provided to eliminate or
reduce fees under paragraph (23)(A) paid by small business
lenders with assets less than $1,000,000,000 as of the
date of enactment; and
(C) then use any remaining amounts appropriated
under this title to reduce fees paid by small business
lenders other than those with assets less than
$1,000,000,000.
(2) The Administrator shall eliminate fees under subsections (a) and (b) until the amount provided for such purposes,
as applicable, under the heading ‘‘Business Loans Program
Account’’ under the heading ‘‘Small Business Administration’’
under this Act are expended.
SEC. 502. ECONOMIC STIMULUS LENDING PROGRAM FOR SMALL
BUSINESSES. (a) PURPOSE.—The purpose of this section is to permit
the Small Business Administration to guarantee up to 90 percent
of qualifying small business loans made by eligible lenders.
(b) DEFINITIONS.—For purposes of this section:
(1) The term ‘‘Administrator’’ means the Administrator of
the Small Business Administration.
(2) The term ‘‘qualifying small business loan’’ means any
loan to a small business concern pursuant to section 7(a) of
the Small Business Act (15 U.S.C. 636) or title V of the Small
Business Investment Act of 1958 (15 U.S.C. 695 and following)
except for such loans made under section 7(a)(31).
(3) The term ‘‘small business concern’’ has the same
meaning as provided by section 3 of the Small Business Act
(15 U.S.C. 632).
(c) QUALIFIED BORROWERS.—
(1) ALIENS UNLAWFULLY PRESENT IN THE UNITED STATES.—
A loan guarantee may not be made under this section for
a loan made to a concern if an individual who is an alien
unlawfully present in the United States—
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123 STAT. 153
(A) has an ownership interest in that concern; or
(B) has an ownership interest in another concern that
itself has an ownership interest in that concern.
(2) FIRMS IN VIOLATION OF IMMIGRATION LAWS.—No loan
guarantee may be made under this section for a loan to any
entity found, based on a determination by the Secretary of
Homeland Security or the Attorney General to have engaged
in a pattern or practice of hiring, recruiting or referring for
a fee, for employment in the United States an alien knowing
the person is an unauthorized alien.
(d) CRIMINAL BACKGROUND CHECKS.—Prior to the approval of
any loan guarantee under this section, the Administrator may verify
the applicant’s criminal background, or lack thereof, through the
best available means, including, if possible, use of the National
Crime Information Center computer system at the Federal Bureau
of Investigation.
(e) APPLICATION OF OTHER LAW.—Nothing in this section shall
be construed to exempt any activity of the Administrator under
this section from the Federal Credit Reform Act of 1990 (title
V of the Congressional Budget and Impoundment Control Act of
1974; 2 U.S.C. 661 and following).
(f) SUNSET.—Loan guarantees may not be issued under this
section after the date 12 months after the date of enactment of
this Act.
(g) SMALL BUSINESS ACT PROVISIONS.—The provisions of the
Small Business Act applicable to loan guarantees under section
7 of that Act and regulations promulgated thereunder as of the
date of enactment of this Act shall apply to loan guarantees under
this section except as otherwise provided in this section.
(h) AUTHORIZATION.—There are authorized to be appropriated
such sums as may be necessary to carry out this section.
SEC. 503. ESTABLISHMENT OF SBA SECONDARY MARKET GUARANTEE AUTHORITY. (a) PURPOSE.—The purpose of this section is
to provide the Administrator with the authority to establish the
SBA Secondary Market Guarantee Authority within the SBA to
provide a Federal guarantee for pools of first lien 504 loans that
are to be sold to third-party investors.
(b) DEFINITIONS.—For purposes of this section:
(1) The term ‘‘Administrator’’ means the Administrator of
the Small Business Administration.
(2) The term ‘‘first lien position 504 loan’’ means the first
mortgage position, non-federally guaranteed loans made by private sector lenders made under title V of the Small Business
Investment Act.
(c) ESTABLISHMENT OF AUTHORITY.—
(1) ORGANIZATION.—
(A) The Administrator shall establish a Secondary
Market Guarantee Authority within the Small Business
Administration.
(B) The Administrator shall appoint a Director of the
Authority who shall report to the Administrator.
(C) The Administrator is authorized to hire such personnel as are necessary to operate the Authority and may
contract such operations of the Authority as necessary to
qualified third party companies or individuals.
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Regulations.
Regulations.
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PUBLIC LAW 111–5—FEB. 17, 2009
(D) The Administrator is authorized to contract with
private sector fiduciary and custom dial agents as necessary
to operate the Authority.
(2) GUARANTEE PROCESS.—
(A) The Administrator shall establish, by rule, a
process in which private sector entities may apply to the
Administration for a Federal guarantee on pools of first
lien position 504 loans that are to be sold to third-party
investors.
(B) The Administrator is authorized to contract with
private sector fiduciary and custom dial agents as necessary
to operate the Authority.
(3) RESPONSIBILITIES.—
(A) The Administrator shall establish, by rule, a
process in which private sector entities may apply to the
SBA for a Federal guarantee on pools of first lien position
504 loans that are to be sold to third-party investors.
(B) The rule under this section shall provide for a
process for the Administrator to consider and make
decisions regarding whether to extend a Federal guarantee
referred to in clause (i). Such rule shall also provide that:
(i) The seller of the pools purchasing a guarantee
under this section retains not less than 5 percent of
the dollar amount of the pools to be sold to thirdparty investors.
(ii) The Administrator shall charge fees, upfront
or annual, at a specified percentage of the loan amount
that is at such a rate that the cost of the program
under the Federal Credit Reform Act of 1990 (title
V of the Congressional Budget and Impoundment Control Act of 1974; 2 U.S.C. 661) shall be equal to zero.
(iii) The Administrator may guarantee not more
than $3,000,000,000 of pools under this authority.
(C) The Administrator shall establish documents, legal
covenants, and other required documentation to protect
the interests of the United States.
(D) The Administrator shall establish a process to
receive and disburse funds to entities under the authority
established in this section.
(d) LIMITATIONS.—
(1) The Administrator shall ensure that entities purchasing
a guarantee under this section are using such guarantee for
the purpose of selling 504 first lien position pools to thirdparty investors.
(2) If the Administrator finds that any such guarantee
was used for a purpose other than that specified in paragraph
(1), the Administrator shall—
(A) prohibit the purchaser of the guarantee or its affiliates (within the meaning of the regulations under 13 CFR
121.103) from using the authority of this section in the
future; and
(B) take any other actions the Administrator, in consultation with the Attorney General of the United States
deems appropriate.
(e) OVERSIGHT.—The Administrator shall submit a report to
Congress not later than the third business day of each month
setting forth each of the following:
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 155
(1) The aggregate amount of guarantees extended under
this section during the preceding month.
(2) The aggregate amount of guarantees outstanding.
(3) Defaults and payments on defaults made under this
section.
(4) The identity of each purchaser of a guarantee found
by the Administrator to have misused guarantees under this
section.
(5) Any other information the Administrator deems necessary to fully inform Congress of undue risk to the United
States associated with the issuance of guarantees under this
section.
(f) DURATION OF PROGRAM.—The authority of this section shall
terminate on the date 2 years after the date of enactment of
this section.
(g) FUNDING.—Such sums as necessary are authorized to be
appropriated to carry out the provisions of this section.
(h) BUDGET TREATMENT.—Nothing in this section shall be construed to exempt any activity of the Administrator under this
section from the Federal Credit Reform Act of 1990 (title V of
the Congressional Budget and Impoundment Control Act of 1974;
2 U.S.C. 661 and following).
(i) EMERGENCY RULEMAKING AUTHORITY.—The Administrator
shall issue regulations under this section within 15 days after
the date of enactment of this section. The notice requirements
of section 553(b) of title 5, United States Code shall not apply
to the promulgation of such regulations.
SEC. 504. STIMULUS FOR COMMUNITY DEVELOPMENT LENDING.
(a) LOW INTEREST REFINANCING UNDER THE LOCAL DEVELOPMENT
BUSINESS LOAN PROGRAM.—Section 502 of the Small Business
Investment Act of 1958 (15 U.S.C. 696) is amended by adding
at the end the following:
‘‘(7) PERMISSIBLE DEBT REFINANCING.—
‘‘(A) IN GENERAL.—Any financing approved under this
title may include a limited amount of debt refinancing.
‘‘(B) EXPANSIONS.—If the project involves expansion
of a small business concern, any amount of existing indebtedness that does not exceed 50 percent of the project cost
of the expansion may be refinanced and added to the expansion cost, if—
‘‘(i) the proceeds of the indebtedness were used
to acquire land, including a building situated thereon,
to construct a building thereon, or to purchase equipment;
‘‘(ii) the existing indebtedness is collateralized by
fixed assets;
‘‘(iii) the existing indebtedness was incurred for
the benefit of the small business concern;
‘‘(iv) the financing under this title will be used
only for refinancing existing indebtedness or costs
relating to the project financed under this title;
‘‘(v) the financing under this title will provide a
substantial benefit to the borrower when prepayment
penalties, financing fees, and other financing costs are
accounted for;
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123 STAT. 156
PUBLIC LAW 111–5—FEB. 17, 2009
‘‘(vi) the borrower has been current on all payments due on the existing debt for not less than 1
year preceding the date of refinancing; and
‘‘(vii) the financing under section 504 will provide
better terms or rate of interest than the existing
indebtedness at the time of refinancing.’’.
(b) JOB CREATION GOALS.—Section 501(e)(1) and section
501(e)(2) of the Small Business Investment Act (15 U.S.C. 695)
are each amended by striking ‘‘$50,000’’ and inserting ‘‘$65,000’’.
SEC. 505. INCREASING SMALL BUSINESS INVESTMENT. (a) SIMPLIFIED MAXIMUM LEVERAGE LIMITS.—Section 303(b) of the Small
Business Investment Act of 1958 (15 U.S.C. 683(b)) is amended
as follows:
(1) By striking so much of paragraph (2) as precedes subparagraphs (C) and (D) and inserting the following:
‘‘(2) MAXIMUM LEVERAGE.—
‘‘(A) IN GENERAL.—The maximum amount of outstanding leverage made available to any one company
licensed under section 301(c) of this Act may not exceed
the lesser of—
‘‘(i) 300 percent of such company’s private capital;
or
‘‘(ii) $150,000,000.
‘‘(B) MULTIPLE LICENSES UNDER COMMON CONTROL.—
The maximum amount of outstanding leverage made available to two or more companies licensed under section 301(c)
of this Act that are commonly controlled (as determined
by the Administrator) and not under capital impairment
may not exceed $225,000,000.’’;
(2) By amending paragraph (2)(C) by inserting ‘‘(i)’’ before
‘‘In calculating’’ and adding the following at the end thereof:
‘‘(ii) The maximum amount of outstanding leverage
made available to—
‘‘(I) any 1 company described in clause (iii)
may not exceed the lesser of 300 percent of private
capital of the company, or $175,000,000; and
‘‘(II) 2 or more companies described in clause
(iii) that are under common control (as determined
by
the
Administrator)
may
not
exceed
$250,000,000.
‘‘(iii) A company described in this clause is a company licensed under section 301(c) in the first fiscal
year after the date of enactment of this clause or
any fiscal year thereafter that certifies in writing that
not less than 50 percent of the dollar amount of investments of that company shall be made in companies
that are located in a low-income geographic area (as
that term is defined in section 351).’’.
(3) By striking paragraph (4).
(b) SIMPLIFIED AGGREGATE INVESTMENT LIMITATIONS.—Section
306(a) of the Small Business Investment Act of 1958 (15 U.S.C.
686(a)) is amended to read as follows:
‘‘(a) PERCENTAGE LIMITATION ON PRIVATE CAPITAL.—If any
small business investment company has obtained financing from
the Administrator and such financing remains outstanding, the
aggregate amount of securities acquired and for which commitments
may be issued by such company under the provisions of this title
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 157
for any single enterprise shall not, without the approval of the
Administrator, exceed 10 percent of the sum of—
‘‘(1) the private capital of such company; and
‘‘(2) the total amount of leverage projected by the company
in the company’s business plan that was approved by the
Administrator at the time of the grant of the company’s
license.’’.
(c) INVESTMENTS IN SMALLER ENTERPRISES.—Section 303(d) of
the Small Business Investment Act of 1958 (15 U.S.C. 683(d))
is amended to read as follows:
‘‘(d) INVESTMENTS IN SMALLER ENTERPRISES.—The Administrator shall require each licensee, as a condition of approval of
an application for leverage, to certify in writing that not less than
25 percent of the aggregate dollar amount of financings of that
licensee shall be provided to smaller enterprises.’’.
SEC. 506. BUSINESS STABILIZATION PROGRAM. (a) IN GENERAL.—
Subject to the availability of appropriations, the Administrator of
the Small Business Administration shall carry out a program to
provide loans on a deferred basis to viable (as such term is determined pursuant to regulation by the Administrator of the Small
Business Administration) small business concerns that have a qualifying small business loan and are experiencing immediate financial
hardship.
(b) ELIGIBLE BORROWER.—A small business concern as defined
under section 3 of the Small Business Act (15 U.S.C. 632).
(c) QUALIFYING SMALL BUSINESS LOAN.—A loan made to a
small business concern that meets the eligibility standards in section 7(a) of the Small Business Act (15 U.S.C. 636(a)) but shall
not include loans guarantees (or loan guarantee commitments made)
by the Administrator prior to the date of enactment of this Act.
(d) LOAN SIZE.—Loans guaranteed under this section may not
exceed $35,000.
(e) PURPOSE.—Loans guaranteed under this program shall be
used to make periodic payment of principal and interest, either
in full or in part, on an existing qualifying small business loan
for a period of time not to exceed 6 months.
(f) LOAN TERMS.—Loans made under this section shall:
(1) carry a 100 percent guaranty; and
(2) have interest fully subsidized for the period of repayment.
(g) REPAYMENT.—Repayment for loans made under this section
shall—
(1) be amortized over a period of time not to exceed 5
years; and
(2) not begin until 12 months after the final disbursement
of funds is made.
(h) COLLATERAL.—The Administrator of the Small Business
Administration may accept any available collateral, including
subordinated liens, to secure loans made under this section.
(i) FEES.—The Administrator of the Small Business Administration is prohibited from charging any processing fees, origination
fees, application fees, points, brokerage fees, bonus points, prepayment penalties, and other fees that could be charged to a loan
applicant for loans under this section.
(j) SUNSET.—The Administrator of the Small Business Administration shall not issue loan guarantees under this section after
September 30, 2010.
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Deadline.
PUBLIC LAW 111–5—FEB. 17, 2009
(k) EMERGENCY RULEMAKING AUTHORITY.—The Administrator
of the Small Business Administration shall issue regulations under
this section within 15 days after the date of enactment of this
section. The notice requirements of section 553(b) of title 5, United
States Code shall not apply to the promulgation of such regulations.
SEC. 507. GAO REPORT.
(a) REPORT .—Not later than 60 days after the enactment of
this Act, the Comptroller General of the United States shall report
to the Congress on the actions of the Administrator in implementing
the authorities established in the administrative provisions of this
title.
(b) INCLUDED ITEM.—The report under this section shall include
a summary of the activity of the Administrator under this title
and an analysis of whether he is accomplishing the purpose of
increasing liquidity in the secondary market for Small Business
Administration loans.
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SEC. 508. SURETY BONDS.
(a) MAXIMUM BOND AMOUNT .— Section 411(a)(1) of the Small
Business Investment Act of 1958 (15 U.S.C. 694b(a)(1)) is
amended—
(1) by inserting ‘‘(A)’’ after ‘‘(1)’’;
(2) by striking ‘‘$2,000,000’’ and inserting ‘‘$5,000,000’’; and
(3) by adding at the end the following:
‘‘(B) The Administrator may guarantee a surety under
s ubparagraph (A) for a total work order or contract amount that
does not exceed $10,000,000, if a contracting officer of a Federal
agency certifies that such a guarantee is necessary.’’.
(b) DENIAL OF LIABILITY—
Section 411 of the Small Business Investment Act of 1958
(15 U.S.C. 694b) is amended—
(1) by striking subsection (e) and inserting the following:
‘‘(e) REIMBURSEMENT OF SURETY; CONDITIONS.—
Pursuant to any such guarantee or agreement, the Administration
shall reimburse the surety , as provided in subsection (c) of this
section, except that the Administration shall be relieved of liability
(in whole or in part within the discretion of the Administration)
if—
(1) the surety obtained such guarantee or agreement, or
applied for such reinbursement, by fraud or material misrepresentation,
(2) the total contract amount at the time of execution
of the bond or bonds exceeds $5,000,000,
(3) the surety has breached a material term or condition
of such guarantee agreement, or
(4) the surety has substantially violated the regulations
promulgated by the Administration pursuant to subsection (d).’’
(2) by adding at the end the following:
‘‘(k) For bonds made or executed with the prior approval of
the Administration, the Administration shall not deny liability to
a surety based upon material information that was provided as
part of the guaranty application.’’.
(c) SIZE STANDARDS.—Section 410 of the Small Business Investment Act of 1958 (15 U.S.C. 694a) is amended by adding at the
end the following:
‘‘(9) Notwithstanding any other provision of law or any
rule, regulation, or order of the Administration, for purposes
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 159
of sections 410, 411, and 412 the term ‘small business concern’
means a business concern that meets the size standard for
the primary industry in which such business concern, and
the affiliates of such business concern, is engaged, as determined by the Administrator in accordance with the North American Industry Classification System.’’.
(d) STUDY—The Administrator of the Small Business Administration shall conduct a study of the current funding structure of
the surety bond program carried out under part B (15 U.S.C.
694a et seq.) of title IV of the Small Business Investment Act
of 1958. The study shall include-(1) an assessment of whether the program’s current funding
framework and program fees are inhibiting the program’s
growth;
(2) an assessment of whether surety companies and small
business concerns could benefit from an alternative funding
structure; and
(e) REPORT—Not later than 180 days after the date of enactment of this Act, the Administrator shall submit to Congress a
report on the results of the study required under subsection (d).
(f) SUNSET.—The amendments made by this section shall
remain in effect until September 30, 2010.
15 USC 694a
note.
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SEC. 509. ESTABLISHMENT OF SBA SECONDARY MARKET LENDING
AUTHORITY.
(a) PURPOSE.—The purpose of this section is to provide the
Small Business Administration with the authority to establish a
Secondary Market Lending Authority within the SBA to make
loans to the systemically important SBA secondary market brokerdealers who operate the SBA secondary market.
(b) DEFINITIONS.—For purposes of this section:
(1) The term ‘‘Administrator’’ means the Administrator of
the SBA.
(2) The term ‘‘SBA’’ means the Small Business Administration.
(3) The terms ‘‘Secondary Market Lending Authority’’ and
‘‘Authority’’ mean the office establishedunder subsection (c).
(4) The term ‘‘SBA secondary market’’ meansthe market
for the purchase and sale of loans originated, underwritten,
and closed under the Small Business Act.
(5) The term ‘‘Systemically Important Secondary Market
Broker-Dealers’’ mean those entities designated under subsection (c)(1) as vital to the continued operation of the SBA
secondary market by reason of their purchase and sale of
the government guaranteed portion of loans, or pools of
loans,originated, underwritten, and closed under the Small
Business Act.
(c) RESPONSIBILITIES, AUTHORITIES, ORGANIZATION, AND LIMITATIONS.—
(1) DESIGNATION OF SYSTEMICALLY IMPORTANT SBA SECONDARY MARKET BROKER-DEALERS.—The Administrator shall
establish a process to designate, in consultation with the Board
of Governors of the Federal Reserve and the Secretary of the
Treasury, Systemically Important Secondary Market BrokerDealers.
(2) ESTABLISHMENT OF SBA SECONDARY MARKET LENDING
AUTHORITY.—
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123 STAT. 160
PUBLIC LAW 111–5—FEB. 17, 2009
(A) ORGANIZATION.—
(i) The Administrator shall establish within the
SBA an office to provide loans to Systemically Important Secondary Market Broker-dealers to be used for
the purpose of financing the inventory of the government guaranteed portion of loans, originated, underwritten, and closed under the Small Business Act or
pools of such loans.
(ii) The Administrator shall appoint a Director of
the Authority who shall report to the Administrator.
(iii) The Administrator is authorized to hire such
personnel as are necessary to operate the Authority.
(iv) The Administrator may contract such
Authority operations as he determines necessary to
qualified third-party companies or individuals.
(v) The Administrator is authorized to contract
with private sector fiduciary and custodial agents as
necessary to operate the Authority.
(B) LOANS.—
(i) The Administrator shall establish by rule a
process under which Systemically Important SBA Secondary Market Broker-Dealers designated under paragraph (1) may apply to the Administrator for loans
under this section.
(ii) The rule under clause (i) shall provide a process
for the Administrator to consider and make decisions
regarding whether or not to extend a loan applied
for under this section. Such rule shall include provisions to assure each of the following:
(I) That loans made under this section are
for the sole purpose of financing the inventory
of the govern ment guaranteed portion of loans,
originated, underwritten, and closed under the
Small Business Act or pools of such loans.
(II) That loans made under this section are
fully collateralized to the satisfaction of the
Administrator.
(III) That there is no limit to the frequency
in which a borrower may borrow under this section
unless the Administrator determines that doing
so would create an undue risk of loss to the agency
or the United States.
(IV) That there is no limit on the size of a
loan, subject to the discretion of the Administrator.
(iii) Interest on loans under this section shall not
exceed the Federal Funds target rate as established
by the Federal Reserve Board of Governors plus 25
basis points.
(iv) The rule under this section shall provide for
such loan documents, legal covenants, collateral
requirements and other required documentation as necessary to protect the interests of the agency, the United
States, and the taxpayer.
(v) The Administrator shall establish custodial
accounts to safeguard any collateral pledged to the
SBA in connection with a loan under this section.
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 161
(vi) The Administrator shall establish a process
to disburse and receive funds to and from borrowers
under this section.
(C) LIMITATIONS ON USE OF LOAN PROCEEDS BY SYSTEMICALLY
IMPORTANT SECONDARY MARKET BROKER-DEALERS.—The Administrator shall ensure that borrowers under this section are using
funds provided under this section only for the purpose specified
in subparagraph (B)(ii)(I). If the Administrator finds that such
funds were used for any other purpose, the Administrator shall—
(i) require immediate repayment of outstanding loans;
(ii) prohibit the borrower, its affiliates, or any future corporate manifestation of the borrower from using the Authority;
and
(iii) take any other actions the Administrator, in consultation with the Attorney General of the United States,
deemsappropriate.
(d) REPORT TO CONGRESS .—The Administrator shall submit
a report to Congress not later than the third business day of
each month containing a statement of each of the following:
(1) The aggregate loan amounts extended during the preceding month under this section.
(2) The aggregate loan amounts repaid under this section
during the proceeding month.
(3) The aggregate loan amount outstanding under this section.
(4) The aggregate value of assets held as collateral under
this section;
(5) The amount of any defaults or delinquencies on loans
made under this section.
(6) The identity of any borrower found by the Administrator
to misuse funds made available under this section.
(7) Any other information the Administrator deems necessary to fully inform Congress of undue risk of financial loss
to the United States in connection with loans made under
this section.
(e) DURATION.—The authority of this section shall remain in
effect for a period of 2 years after the date of enactment of this
section.
(f) F EES.—The Administrator shall charge fees, up front,
annual, or both at a specified percentage of the loan amount that
is at such a rate that the cost of the program under the Federal
Credit Reform Act of 1990 ((title V of the Congressional Budget
and Impoundment Control Act of 1974; 2 U.S.C. 661) shall be
equal to zero.
(h) BUDGET TREATMENT.—Nothing in this section shall be construed to exempt any activity of the Administrator under this
section from the Federal Credit Reform Act of 1990 (title V of
the Congressional Budget and Im poundment Control Act of 1974;
2 U.S.C. 661 and following).
(i) EMERGENCY RULEMAKING AUTHORITY.—The Administrator
shall promulgate regulations under this section within 30 days
after the date of enactment of enactment of this section. In promulgating these regulations,the Administrator the notice requirements
of section 553(b) of title 5 of the United States Code shall not
apply.
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123 STAT. 162
PUBLIC LAW 111–5—FEB. 17, 2009
TITLE VI—DEPARTMENT OF HOMELAND SECURITY
OFFICE
Deadline.
Expenditure
plan.
OF THE
UNDER SECRETARY
FOR
MANAGEMENT
For an additional amount for the ‘‘Office of the Under Secretary
for Management’’, $200,000,000 for planning, design, construction
costs, site security, information technology infrastructure, fixtures,
and related costs to consolidate the Department of Homeland Security headquarters: Provided, That no later than 60 days after the
date of enactment of this Act, the Secretary of Homeland Security,
in consultation with the Administrator of General Services, shall
submit to the Committees on Appropriations of the Senate and
the House of Representatives a plan for the expenditure of these
funds.
OFFICE OF INSPECTOR GENERAL
For an additional amount for the ‘‘Office of Inspector General’’,
$5,000,000, to remain available until September 30, 2012, for oversight and audit of programs, grants, and projects funded under
this title.
U.S. CUSTOMS
AND
BORDER PROTECTION
SALARIES AND EXPENSES
Deadline.
Expenditure
plan.
For an additional amount for ‘‘Salaries and Expenses’’,
$160,000,000, of which $100,000,000 shall be for the procurement
and deployment of non-intrusive inspection systems; and of which
$60,000,000 shall be for procurement and deployment of tactical
communications equipment and radios: Provided, That no later
than 45 days after the date of enactment of this Act, the Secretary
of Homeland Security shall submit to the Committees on Appropriations of the Senate and the House of Representatives a plan for
expenditure of these funds.
BORDER SECURITY FENCING, INFRASTRUCTURE, AND TECHNOLOGY
Deadline.
Expenditure
plan.
For an additional amount for ‘‘Border Security Fencing, Infrastructure, and Technology’’, $100,000,000 for expedited development
and deployment of border security technology on the Southwest
border: Provided, That no later than 45 days after the date of
enactment of this Act, the Secretary of Homeland Security shall
submit to the Committees on Appropriations of the Senate and
the House of Representatives a plan for expenditure of these funds.
CONSTRUCTION
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Expenditure
plan.
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For an additional amount for ‘‘Construction’’, $420,000,000
solely for planning, management, design, alteration, and construction of U.S. Customs and Border Protection owned land border
ports of entry: Provided, That no later than 45 days after the
date of enactment of this Act, the Secretary of Homeland Security
shall submit to the Committees on Appropriations of the Senate
and the House of Representatives a plan for expenditure of these
funds.
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PUBLIC LAW 111–5—FEB. 17, 2009
U.S. IMMIGRATION
AND
123 STAT. 163
CUSTOMS ENFORCEMENT
AUTOMATION MODERNIZATION
For an additional amount for ‘‘Automation Modernization’’,
$20,000,000 for the procurement and deployment of tactical communications equipment and radios: Provided, That no later than 45
days after the date of enactment of this Act, the Secretary of
Homeland Security shall submit to the Committees on Appropriations of the Senate and the House of Representatives a plan for
expenditure of these funds.
Deadline.
Expenditure
plan.
TRANSPORTATION SECURITY ADMINISTRATION
AVIATION SECURITY
For an additional amount for ‘‘Aviation Security’’,
$1,000,000,000 for procurement and installation of checked baggage
explosives detection systems and checkpoint explosives detection
equipment: Provided, That the Assistant Secretary of Homeland
Security (Transportation Security Administration) shall prioritize
the award of these funds to accelerate the installations at locations
with completed design plans: Provided further, That no later than
45 days after the date of enactment of this Act, the Secretary
of Homeland Security shall submit to the Committees on Appropriations of the Senate and the House of Representatives a plan for
the expenditure of these funds.
Deadline.
Expenditure
plan.
COAST GUARD
ACQUISITION, CONSTRUCTION, AND IMPROVEMENTS
For an additional amount for ‘‘Acquisition, Construction, and
Improvements’’, $98,000,000 for shore facilities and aids to navigation facilities; for priority procurements due to materials and labor
cost increases; and for costs to repair, renovate, assess, or improve
vessels: Provided, That no later than 45 days after the date of
enactment of this Act, the Secretary of Homeland Security shall
submit to the Committees on Appropriations of the Senate and
the House of Representatives a plan for the expenditure of these
funds.
Deadline.
Expenditure
plan.
ALTERATION OF BRIDGES
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For an additional amount for ‘‘Alteration of Bridges’’,
$142,000,000 for alteration or removal of obstructive bridges, as
authorized by section 6 of the Truman-Hobbs Act (33 U.S.C. 516):
Provided, That the Coast Guard shall award these funds to those
bridges that are ready to proceed to construction: Provided further,
That no later than 45 days after the date of enactment of this
Act, the Secretary of Homeland Security shall submit to the
Committees on Appropriations of the Senate and the House of
Representatives a plan for the expenditure of these funds.
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plan.
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123 STAT. 164
PUBLIC LAW 111–5—FEB. 17, 2009
FEDERAL EMERGENCY MANAGEMENT AGENCY
STATE AND LOCAL PROGRAMS
For an additional amount for grants, $300,000,000, to be allocated as follows:
(1) $150,000,000 for Public Transportation Security Assistance and Railroad Security Assistance under sections 1406
and 1513 of the Implementing Recommendations of the 9/11
Commission Act of 2007 (Public Law 110–53; 6 U.S.C. 1135
and 1163).
(2) $150,000,000 for Port Security Grants in accordance
with 46 U.S.C. 70107, notwithstanding 46 U.S.C. 70107(c).
FIREFIGHTER ASSISTANCE GRANTS
For an additional amount for competitive grants, $210,000,000
for modifying, upgrading, or constructing non-Federal fire stations:
Provided, That up to 5 percent shall be for program administration:
Provided further, That no grant shall exceed $15,000,000.
DISASTER ASSISTANCE DIRECT LOAN PROGRAM ACCOUNT
Notwithstanding section 417(b) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, the amount of any
such loan issued pursuant to this section for major disasters occurring in calendar year 2008 may exceed $5,000,000, and may be
equal to not more than 50 percent of the annual operating budget
of the local government in any case in which that local government
has suffered a loss of 25 percent or more in tax revenues: Provided,
That the cost of modifying such loans shall be as defined in section
502 of the Congressional Budget Act of 1974 (2 U.S.C. 661a).
EMERGENCY FOOD AND SHELTER
For an additional amount to carry out the emergency food
and shelter program pursuant to title III of the McKinney-Vento
Homeless Assistance Act (42 U.S.C. 11331 et seq.), $100,000,000:
Provided, That total administrative costs shall not exceed 3.5 percent of the total amount made available under this heading.
GENERAL PROVISIONS—THIS TITLE
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President.
Panel.
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SEC. 601. Notwithstanding any other provision of law, the
President shall establish an arbitration panel under the Federal
Emergency Management Agency public assistance program to expedite the recovery efforts from Hurricanes Katrina and Rita within
the Gulf Coast Region. The arbitration panel shall have sufficient
authority regarding the award or denial of disputed public assistance applications for covered hurricane damage under section 403,
406, or 407 of the Robert T. Stafford Disaster Relief and Emergency
Assistance Act (42 U.S.C. 5170b, 5172, or 5173) for a project the
total amount of which is more than $500,000.
SEC. 602. The Administrator of the Federal Emergency Management Agency may not prohibit or restrict the use of funds designated
under the hazard mitigation grant program for damage caused
by Hurricanes Katrina and Rita if the homeowner who is an
applicant for assistance under such program commenced work
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 165
otherwise eligible for hazard mitigation grant program assistance
under section 404 of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act (42 U.S.C. 5170c) without approval in
writing from the Administrator.
SEC. 603. Subparagraph (E) of section 34(a)(1) of the Federal
Fire Prevention and Control Act of 1974 (15 U.S.C. 2229a(a)(1)(E))
shall not apply with respect to funds appropriated in this or any
other Act making appropriations for fiscal year 2009 or 2010 for
grants under such section 34.
SEC. 604. (a) REQUIREMENT.—Except as provided in subsections
(c) through (g), funds appropriated or otherwise available to the
Department of Homeland Security may not be used for the procurement of an item described in subsection (b) if the item is not
grown, reprocessed, reused, or produced in the United States.
(b) COVERED ITEMS.—An item referred to in subsection (a)
is any of the following, if the item is directly related to the national
security interests of the United States:
(1) An article or item of—
(A) clothing and the materials and components thereof,
other than sensors, electronics, or other items added to,
and not normally associated with, clothing (and the materials and components thereof);
(B) tents, tarpaulins, covers, textile belts, bags, protective equipment (including but not limited to body armor),
sleep systems, load carrying equipment (including but not
limited to fieldpacks), textile marine equipment, parachutes, or bandages;
(C) cotton and other natural fiber products, woven
silk or woven silk blends, spun silk yarn for cartridge
cloth, synthetic fabric or coated synthetic fabric (including
all textile fibers and yarns that are for use in such fabrics),
canvas products, or wool (whether in the form of fiber
or yarn or contained in fabrics, materials, or manufactured
articles); or
(D) any item of individual equipment manufactured
from or containing such fibers, yarns, fabrics, or materials.
(c) AVAILABILITY EXCEPTION.—Subsection (a) does not apply
to the extent that the Secretary of Homeland Security determines
that satisfactory quality and sufficient quantity of any such article
or item described in subsection (b)(1) grown, reprocessed, reused,
or produced in the United States cannot be procured as and when
needed at United States market prices. This section is not applicable
to covered items that are, or include, materials determined to
be non-available in accordance with Federal Acquisition Regulation
25.104 Nonavailable Articles.
(d) DE MINIMIS EXCEPTION.—Notwithstanding subsection (a),
the Secretary of Homeland Security may accept delivery of an
item covered by subsection (b) that contains non-compliant fibers
if the total value of non-compliant fibers contained in the end
item does not exceed 10 percent of the total purchase price of
the end item.
(e) EXCEPTION FOR CERTAIN PROCUREMENTS OUTSIDE THE
UNITED STATES.—Subsection (a) does not apply to the following:
(1) Procurements by vessels in foreign waters.
(2) Emergency procurements.
(f) EXCEPTION FOR SMALL PURCHASES.—Subsection (a) does not
apply to purchases for amounts not greater than the simplified
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123 STAT. 166
Internet posting.
Applicability.
PUBLIC LAW 111–5—FEB. 17, 2009
acquisition threshold referred to in section 2304(g) of title 10, United
States Code.
(g) APPLICABILITY TO CONTRACTS AND SUBCONTRACTS FOR
PROCUREMENT OF COMMERCIAL ITEMS.—This section is applicable
to contracts and subcontracts for the procurement of commercial
items not withstanding section 34 of the Office of Federal Procurement Policy Act (41 U.S.C. 430), with the exception of commercial
items listed under subsections (b)(1)(C) and (b)(1)(D) above. For
the purposes of this section, ‘‘commercial’’ shall be as defined in
the Federal Acquisition Regulation—Part 2.
(h) GEOGRAPHIC COVERAGE.—In this section, the term ‘‘United
States’’ includes the possessions of the United States.
(i) NOTIFICATION REQUIRED WITHIN 7 DAYS AFTER CONTRACT
AWARD IF CERTAIN EXCEPTIONS APPLIED.—In the case of any contract for the procurement of an item described in subsection (b)(1),
if the Secretary of Homeland Security applies an exception set
forth in subsection (c) with respect to that contract, the Secretary
shall, not later than 7 days after the award of the contract, post
a notification that the exception has been applied on the Internet
site maintained by the General Services Administration known
as FedBizOps.gov (or any successor site).
(j) TRAINING DURING FISCAL YEAR 2009.—
(1) IN GENERAL.—The Secretary of Homeland Security shall
ensure that each member of the acquisition workforce in the
Department of Homeland Security who participates personally
and substantially in the acquisition of textiles on a regular
basis receives training during fiscal year 2009 on the requirements of this section and the regulations implementing this
section.
(2) INCLUSION OF INFORMATION IN NEW TRAINING PROGRAMS.—The Secretary shall ensure that any training program
for the acquisition workforce developed or implemented after
the date of the enactment of this Act includes comprehensive
information on the requirements described in paragraph (1).
(k) CONSISTENCY WITH INTERNATIONAL AGREEMENTS.— This section shall be applied in a manner consistent
with United States obligations under international agreements.
(l) EFFECTIVE DATE.—This section applies with respect to contracts entered into by the Department of Homeland Security 180
days after the date of the enactment of this Act.
TITLE VII—INTERIOR, ENVIRONMENT, AND RELATED
AGENCIES
DEPARTMENT OF THE INTERIOR
BUREAU
OF
LAND MANAGEMENT
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MANAGEMENT OF LANDS AND RESOURCES
For an additional amount for ‘‘Management of Lands and
Resources’’, for activities on all Bureau of Land Management lands
including maintenance, rehabilitation, and restoration of facilities,
property, trails and lands and for remediation of abandoned mines
and wells, $125,000,000.
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 167
CONSTRUCTION
For an additional amount for ‘‘Construction’’, for activities on
all Bureau of Land Management lands including construction,
reconstruction, decommissioning and repair of roads, bridges, trails,
property, and facilities and for energy efficient retrofits of existing
facilities, $180,000,000.
WILDLAND FIRE MANAGEMENT
For an additional amount for ‘‘Wildland Fire Management’’,
for hazardous fuels reduction, $15,000,000.
UNITED STATES FISH
AND
WILDLIFE SERVICE
RESOURCE MANAGEMENT
For an additional amount for ‘‘Resource Management’’, for
deferred maintenance, construction, and capital improvement
projects on national wildlife refuges and national fish hatcheries
and for high priority habitat restoration projects, $165,000,000.
CONSTRUCTION
For an additional amount for ‘‘Construction’’, for construction,
reconstruction, and repair of roads, bridges, property, and facilities
and for energy efficient retrofits of existing facilities, $115,000,000.
NATIONAL PARK SERVICE
OPERATION OF THE NATIONAL PARK SYSTEM
For an additional amount for ‘‘Operation of the National Park
System’’, for deferred maintenance of facilities and trails and for
other critical repair and rehabilitation projects, $146,000,000.
HISTORIC PRESERVATION FUND
For an additional amount for ‘‘Historic Preservation Fund’’,
for historic preservation projects at historically black colleges and
universities as authorized by the Historic Preservation Fund Act
of 1996 and the Omnibus Parks and Public Lands Act of 1996,
$15,000,000: Provided, That any matching requirements otherwise
required for such projects are waived.
CONSTRUCTION
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For an additional amount for ‘‘Construction’’, for repair and
restoration of roads; construction of facilities, including energy efficient retrofits of existing facilities; equipment replacement;
preservation and repair of historical resources within the National
Park System; cleanup of abandoned mine sites on park lands;
and other critical infrastructure projects, $589,000,000.
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123 STAT. 168
PUBLIC LAW 111–5—FEB. 17, 2009
UNITED STATES GEOLOGICAL SURVEY
SURVEYS, INVESTIGATIONS, AND RESEARCH
For an additional amount for ‘‘Surveys, Investigations, and
Research’’, $140,000,000, for repair, construction and restoration
of facilities; equipment replacement and upgrades including stream
gages, and seismic and volcano monitoring systems; national map
activities; and other critical deferred maintenance and improvement
projects.
BUREAU
OF INDIAN
AFFAIRS
OPERATION OF INDIAN PROGRAMS
For an additional amount for ‘‘Operation of Indian Programs’’,
for workforce training programs and the housing improvement program, $40,000,000.
CONSTRUCTION
For an additional amount for ‘‘Construction’’, for repair and
restoration of roads; replacement school construction; school
improvements and repairs; and detention center maintenance and
repairs, $450,000,000: Provided, That section 1606 of this Act shall
not apply to tribal contracts entered into by the Bureau of Indian
Affairs with this appropriation.
INDIAN GUARANTEED LOAN PROGRAM ACCOUNT
For an additional amount for ‘‘Indian Guaranteed Loan Program Account’’, $10,000,000.
OFFICE
OF INSPECTOR
GENERAL
SALARIES AND EXPENSES
For an additional amount for ‘‘Office of Inspector General’’,
$15,000,000, to remain available until September 30, 2012.
ENVIROMENTAL PROTECTION AGENCY
OFFICE
OF INSPECTOR
GENERAL
For an additional amount for ‘‘Office of Inspector General’’,
$20,000,000, to remain available until September 30, 2012.
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HAZARDOUS SUBSTANCE SUPERFUND
For an additional amount for ‘‘Hazardous Substance Superfund’’, $600,000,000, which shall be for the Superfund Remedial
program: Provided, That the Administrator of the Environmental
Protection Agency (Administrator) may retain up to 3 percent of
the funds appropriated herein for management and oversight purposes.
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 169
LEAKING UNDERGROUND STORAGE TANK TRUST FUND PROGRAM
For an additional amount for ‘‘Leaking Underground Storage
Tank Trust Fund Program’’, $200,000,000, which shall be for
cleanup activities authorized by section 9003(h) of the Solid Waste
Disposal Act: Provided, That none of these funds shall be subject
to cost share requirements under section 9003(h)(7)(B) of such Act:
Provided further, That the Administrator may retain up to 1.5
percent of the funds appropriated herein for management and oversight purposes.
STATE
AND
TRIBAL ASSISTANCE GRANTS
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(INCLUDING TRANSFERS OF FUNDS)
For an additional amount for ‘‘State and Tribal Assistance
Grants’’, $6,400,000,000, which shall be allocated as follows:
(1) $4,000,000,000 shall be for capitalization grants for
the Clean Water State Revolving Funds under title VI of the
Federal Water Pollution Control Act and $2,000,000,000 shall
be for capitalization grants under section 1452 of the Safe
Drinking Water Act: Provided, That the Administrator may
retain up to 1 percent of the funds appropriated herein for
management and oversight purposes: Provided further, That
funds appropriated herein shall not be subject to the matching
or cost share requirements of sections 602(b)(2), 602(b)(3) or
202 of the Federal Water Pollution Control Act nor the
matching requirements of section 1452(e) of the Safe Drinking
Water Act: Provided further, That the Administrator shall
reallocate funds appropriated herein for the Clean and Drinking
Water State Revolving Funds (Revolving Funds) where projects
are not under contract or construction within 12 months of
the date of enactment of this Act: Provided further, That notwithstanding the priority rankings they would otherwise receive
under each program, priority for funds appropriated herein
shall be given to projects on a State priority list that are
ready to proceed to construction within 12 months of the date
of enactment of this Act: Provided further, That notwithstanding the requirements of section 603(d) of the Federal
Water Pollution Control Act or section 1452(f) of the Safe
Drinking Water Act, for the funds appropriated herein, each
State shall use not less than 50 percent of the amount of
its capitalization grants to provide additional subsidization to
eligible recipients in the form of forgiveness of principal, negative interest loans or grants or any combination of these: Provided further, That, to the extent there are sufficient eligible
project applications, not less than 20 percent of the funds
appropriated herein for the Revolving Funds shall be for
projects to address green infrastructure, water or energy efficiency improvements or other environmentally innovative
activities: Provided further, That notwithstanding the limitation
on amounts specified in section 518(c) of the Federal Water
Pollution Control Act, up to 1.5 percent of the funds appropriated herein for the Clean Water State Revolving Funds
may be reserved by the Administrator for tribal grants under
section 518(c) of such Act: Provided further, That up to 4
percent of the funds appropriated herein for tribal set-asides
under the Revolving Funds may be transferred to the Indian
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123 STAT. 170
PUBLIC LAW 111–5—FEB. 17, 2009
Health Service to support management and oversight of tribal
projects: Provided further, That none of the funds appropriated
herein shall be available for the purchase of land or easements
as authorized by section 603(c) of the Federal Water Pollution
Control Act or for activities authorized by section 1452(k) of
the Safe Drinking Water Act: Provided further, That notwithstanding section 603(d)(2) of the Federal Water Pollution Control Act and section 1452(f)(2) of the Safe Drinking Water
Act, funds may be used to buy, refinance or restructure the
debt obligations of eligible recipients only where such debt
was incurred on or after October 1, 2008;
(2) $100,000,000 shall be to carry out Brownfields projects
authorized by section 104(k) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980:
Provided, That the Administrator may reserve up to 3.5 percent
of the funds appropriated herein for management and oversight
purposes: Provided further, That none of the funds appropriated
herein shall be subject to cost share requirements under section
104(k)(9)(B)(iii) of such Act; and
(3) $300,000,000 shall be for Diesel Emission Reduction
Act grants pursuant to title VII, subtitle G of the Energy
Policy Act of 2005: Provided, That the Administrator may
reserve up to 2 percent of the funds appropriated herein for
management and oversight purposes: Provided further, That
none of the funds appropriated herein for Diesel Emission
Reduction Act grants shall be subject to the State Grant and
Loan Program Matching Incentive provisions of section 793(c)(3)
of such Act.
ADMINISTRATIVE PROVISION, ENVIRONMENTAL PROTECTION AGENCY
(INCLUDING TRANSFERS OF FUNDS)
Funds made available to the Environmental Protection Agency
by this Act for management and oversight purposes shall remain
available until September 30, 2011, and may be transferred to
the ‘‘Environmental Programs and Management’’ account as needed.
DEPARTMENT OF AGRICULTURE
FOREST SERVICE
CAPITAL IMPROVEMENT AND MAINTENANCE
For an additional amount for ‘‘Capital Improvement and
Maintenance’’, $650,000,000, for priority road, bridge and trail
maintenance and decommissioning, including related watershed restoration and ecosystem enhancement projects; facilities improvement, maintenance and renovation; remediation of abandoned mine
sites; and support costs necessary to carry out this work.
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WILDLAND FIRE MANAGEMENT
For an additional amount for ‘‘Wildland Fire Management’’,
$500,000,000, of which $250,000,000 is for hazardous fuels reduction, forest health protection, rehabilitation and hazard mitigation
activities on Federal lands and of which $250,000,000 is for State
and private forestry activities including hazardous fuels reduction,
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 171
forest health and ecosystem improvement activities on State and
private lands using all authorities available to the Forest Service:
Provided, That up to $50,000,000 of the total funding may be
used to make wood-to-energy grants to promote increased utilization
of biomass from Federal, State and private lands: Provided further,
That funds provided for activities on State and private lands shall
not be subject to matching or cost share requirements.
DEPARTMENT OF HEALTH AND HUMAN SERVICES
INDIAN HEALTH SERVICE
INDIAN HEALTH SERVICES
For an additional amount for ‘‘Indian Health Services’’, for
health information technology activities, $85,000,000: Provided,
That such funds may be used for both telehealth services development and related infrastructure requirements that are typically
funded through the ‘‘Indian Health Facilities’’ account: Provided
further, That notwithstanding any other provision of law, health
information technology funds provided within this title shall be
allocated at the discretion of the Director of the Indian Health
Service.
INDIAN HEALTH FACILITIES
For an additional amount for ‘‘Indian Health Facilities’’, for
facilities construction projects, deferred maintenance and improvement projects, the backlog of sanitation projects and the purchase
of equipment, $415,000,000, of which $227,000,000 is provided
within the health facilities construction activity for the completion
of up to two facilities from the current priority list for which
work has already been initiated: Provided, That for the purposes
of this Act, spending caps included within the annual appropriation
for ‘‘Indian Health Facilities’’ for the purchase of medical equipment
shall not apply: Provided further, That section 1606 of this Act
shall not apply to tribal contracts entered into by the Service
with this appropriation.
OTHER RELATED AGENCIES
SMITHSONIAN INSTITUTION
FACILITIES CAPITAL
For an additional amount for ‘‘Facilities Capital’’, for repair
and revitalization of existing facilities, $25,000,000.
NATIONAL FOUNDATION
ON THE
ARTS
NATIONAL ENDOWMENT
AND THE
FOR THE
HUMANITIES
ARTS
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GRANTS AND ADMINISTRATION
For an additional amount for ‘‘Grants and Administration’’,
$50,000,000, to be distributed in direct grants to fund arts projects
and activities which preserve jobs in the non-profit arts sector
threatened by declines in philanthropic and other support during
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Waiver authority.
PUBLIC LAW 111–5—FEB. 17, 2009
the current economic downturn: Provided, That 40 percent of such
funds shall be distributed to State arts agencies and regional arts
organizations in a manner similar to the agency’s current practice
and 60 percent of such funds shall be for competitively selected
arts projects and activities according to sections 2 and 5(c) of
the National Foundation on the Arts and Humanities Act of 1965
(20 U.S.C. 951, 954(c)): Provided further, That matching requirements under section 5(e) of such Act shall be waived.
GENERAL PROVISIONS—THIS TITLE
Deadlines.
Expenditure
plan.
Reports.
Notification.
Deadline.
SEC. 701. (a) Within 30 days of enactment of this Act, each
agency receiving funds under this title shall submit a general
plan for the expenditure of such funds to the House and Senate
Committees on Appropriations.
(b) Within 90 days of enactment of this Act, each agency
receiving funds under this title shall submit to the Committees
a report containing detailed project level information associated
with the general plan submitted pursuant to subsection (a).
SEC. 702. In carrying out the work for which funds in this
title are being made available, the Secretary of the Interior and
the Secretary of Agriculture shall utilize, where practicable, the
Public Lands Corps, Youth Conservation Corps, Student Conservation Association, Job Corps and other related partnerships with
Federal, State, local, tribal or non-profit groups that serve young
adults.
SEC. 703. Each agency receiving funds under this title may
transfer up to 10 percent of the funds in any account to other
appropriation accounts within the agency, if the head of the agency
(1) determines that the transfer will enhance the efficiency or
effectiveness of the use of the funds without changing the intended
purpose; and (2) notifies the Committees on Appropriations of the
House of Representatives and the Senate 10 days prior to the
transfer.
TITLE VIII—DEPARTMENTS OF LABOR, HEALTH AND
HUMAN SERVICES, AND EDUCATION, AND RELATED
AGENCIES
DEPARTMENT OF LABOR
EMPLOYMENT
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Grants.
AND
TRAINING ADMINISTRATION
TRAINING AND EMPLOYMENT SERVICES
For an additional amount for ‘‘Training and Employment Services’’ for activities under the Workforce Investment Act of 1998
(‘‘WIA’’), $3,950,000,000, which shall be available for obligation
on the date of enactment of this Act, as follows:
(1) $500,000,000 for grants to the States for adult employment and training activities, including supportive services and
needs-related payments described in section 134(e)(2) and (3)
of the WIA: Provided, That a priority use of these funds shall
be services to individuals described in 134(d)(4)(E) of the WIA;
(2) $1,200,000,000 for grants to the States for youth activities, including summer employment for youth: Provided, That
no portion of such funds shall be reserved to carry out section
127(b)(1)(A) of the WIA: Provided further, That for purposes
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 173
of section 127(b)(1)(C)(iv) of the WIA, funds available for youth
activities shall be allotted as if the total amount available
for youth activities in the fiscal year does not exceed
$1,000,000,000: Provided further, That with respect to the youth
activities provided with such funds, section 101(13)(A) of the
WIA shall be applied by substituting ‘‘age 24’’ for ‘‘age 21’’:
Provided further, That the work readiness performance indicator described in section 136(b)(2)(A)(ii)(I) of the WIA shall
be the only measure of performance used to assess the effectiveness of summer employment for youth provided with such
funds;
(3) $1,250,000,000 for grants to the States for dislocated
worker employment and training activities;
(4) $200,000,000 for the dislocated workers assistance
national reserve;
(5) $50,000,000 for YouthBuild activities: Provided, That
for program years 2008 and 2009, the YouthBuild program
may serve an individual who has dropped out of high school
and re-enrolled in an alternative school, if that re-enrollment
is part of a sequential service strategy; and
(6) $750,000,000 for a program of competitive grants for
worker training and placement in high growth and emerging
industry sectors: Provided, That $500,000,000 shall be for
research, labor exchange and job training projects that prepare
workers for careers in energy efficiency and renewable energy
as described in section 171(e)(1)(B) of the WIA: Provided further, That in awarding grants from those funds not designated
in the preceding proviso, the Secretary of Labor shall give
priority to projects that prepare workers for careers in the
health care sector:
Provided, That funds made available in this paragraph shall remain
available through June 30, 2010: Provided further, That a local
board may award a contract to an institution of higher education
or other eligible training provider if the local board determines
that it would facilitate the training of multiple individuals in highdemand occupations, if such contract does not limit customer choice.
Applicability.
COMMUNITY SERVICE EMPLOYMENT FOR OLDER AMERICANS
For an additional amount for ‘‘Community Service Employment
for Older Americans’’ to carry out title V of the Older Americans
Act of 1965, $120,000,000, which shall be available for obligation
on the date of enactment of this Act and shall remain available
through June 30, 2010: Provided, That funds shall be allotted
within 30 days of such enactment to current grantees in proportion
to their allotment in program year 2008: Provided further, That
funds made available under this heading in this Act may, in accordance with section 517(c) of the Older Americans Act of 1965, be
recaptured and reobligated.
Deadline.
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STATE UNEMPLOYMENT INSURANCE AND EMPLOYMENT SERVICE
OPERATIONS
For an additional amount for ‘‘State Unemployment Insurance
and Employment Service Operations’’ for grants to States in accordance with section 6 of the Wagner-Peyser Act, $400,000,000, which
may be expended from the Employment Security Administration
Account in the Unemployment Trust Fund, and which shall be
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PUBLIC LAW 111–5—FEB. 17, 2009
available for obligation on the date of enactment of this Act: Provided, That such funds shall remain available to the States through
September 30, 2010: Provided further, That $250,000,000 of such
funds shall be used by States for reemployment services for
unemployment insurance claimants (including the integrated
Employment Service and Unemployment Insurance information
technology required to identify and serve the needs of such claimants): Provided further, That the Secretary of Labor shall establish
planning and reporting procedures necessary to provide oversight
of funds used for reemployment services.
Procedures.
DEPARTMENTAL MANAGEMENT
SALARIES AND EXPENSES
(INCLUDING TRANSFER OF FUNDS)
Operating plan.
For an additional amount for ‘‘Departmental Management’’,
$80,000,000, for the enforcement of worker protection laws and
regulations, oversight, and coordination activities related to the
infrastructure and unemployment insurance investments in this
Act: Provided, That the Secretary of Labor may transfer such sums
as necessary to ‘‘Employment and Standards Administration’’,
‘‘Employee Benefits Security Administration’’, ‘‘Occupational Safety
and Health Administration’’, and ‘‘Employment and Training
Administration—Program Administration’’ for enforcement, oversight, and coordination activities: Provided further, That prior to
obligating any funds proposed to be transferred from this account,
the Secretary shall provide to the Committees on Appropriations
of the House of Representatives and the Senate an operating plan
describing the planned uses of each amount proposed to be transferred.
OFFICE OF JOB CORPS
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Operating plan.
Reports.
Deadlines.
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For an additional amount for ‘‘Office of Job Corps’’,
$250,000,000, for construction, rehabilitation and acquisition of Job
Corps Centers, which shall be available upon the date of enactment
of this Act and remain available for obligation through June 30,
2010: Provided, That section 1552(a) of title 31, United States
Code shall not apply if funds are used for a multi-year lease
agreement that will result in construction activities that can commence within 120 days of enactment of this Act: Provided further,
That notwithstanding section 3324(a) of title 31, United States
Code, the funds used for an agreement under the preceding proviso
may be used for advance, progress, and other payments: Provided
further, That the Secretary of Labor may transfer up to 15 percent
of such funds to meet the operational needs of such centers, which
may include training for careers in the energy efficiency, renewable
energy, and environmental protection industries: Provided further,
That the Secretary shall provide to the Committees on Appropriations of the House of Representatives and the Senate an operating
plan describing the allocation of funds, and a report on the actual
obligations, expenditures, and unobligated balances for each activity
funded under this heading not later than September 30, 2009
and quarterly thereafter as long as funding provided under this
heading is available for obligation or expenditure.
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 175
OFFICE OF INSPECTOR GENERAL
For an additional amount for the ‘‘Office of Inspector General’’,
$6,000,000, which shall remain available through September 30,
2012, for salaries and expenses necessary for oversight and audit
of programs, grants, and projects funded in this Act.
DEPARTMENT OF HEALTH AND HUMAN SERVICES
HEALTH RESOURCES
AND
SERVICES ADMINISTRATION
HEALTH RESOURCES AND SERVICES
For an additional amount for ‘‘Health Resources and Services’’,
$2,500,000,000 which shall be used as follows:
(1) $500,000,000 shall be for grants to health centers
authorized under section 330 of the Public Health Service Act
(‘‘PHS Act’’);
(2) $1,500,000,000 shall be available for grants for construction, renovation and equipment, and for the acquisition of
health information technology systems, for health centers
including health center controlled networks receiving operating
grants under section 330 of the PHS Act, notwithstanding
the limitation in section 330(e)(3); and
(3) $500,000,000 to address health professions workforce
shortages, of which $75,000,000 for the National Health Service
Corps shall remain available through September 30, 2011: Provided, That funds may be used to provide scholarships, loan
repayment, and grants to training programs for equipment
as authorized in the PHS Act, and grants authorized in sections
330L, 747, 767 and 768 of the PHS Act: Provided further,
That 20 percent of the funds allocated to the National Health
Service Corps shall be used for field operations:
Provided, That up to 0.5 percent of funds provided in this
paragraph may used for administration of such funds: Provided
further, That the Secretary shall provide to the Committees on
Appropriations of the House of Representatives and the Senate
an operating plan detailing activities to be supported and timelines
for expenditure prior to making any Federal obligations of funds
provided in this paragraph but not later than 90 days after the
date of enactment of this Act: Provided further, That the Secretary
shall provide to the Committees on Appropriations of the House
of Representatives and the Senate a report on the actual obligations,
expenditures, and unobligated balances for each activity funded
in this paragraph not later than November 1, 2009 and every
6 months thereafter as long as funding provided in this paragraph
is available for obligation or expenditure.
NATIONAL INSTITUTES
OF
Operating plan.
Deadline.
Reports.
Deadlines.
HEALTH
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NATIONAL CENTER FOR RESEARCH RESOURCES
For an additional amount for ‘‘National Center for Research
Resources’’, $1,300,000,000, of which $1,000,000,000 shall be for
grants or contracts under section 481A of the Public Health Service
Act to construct, renovate or repair existing non-Federal research
facilities: Provided, That sections 481A(c)(1)(B)(ii), paragraphs (1),
(3), and (4) of section 481A(e), and section 481B of such Act shall
VerDate Nov 24 2008
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Contracts.
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Reports.
Deadline.
PUBLIC LAW 111–5—FEB. 17, 2009
not apply to the use of such funds: Provided further, That the
references to ‘‘20 years’’ in subsections (c)(1)(B)(i) and (f) of section
481A of such Act are deemed to be references to ‘‘10 years’’ for
purposes of using such funds: Provided further, That the National
Center for Research Resources may also use $300,000,000 to provide, under the authority of section 301 and title IV of such Act,
shared instrumentation and other capital research equipment to
recipients of grants and contracts under section 481A of such Act
and other appropriate entities: Provided further, That the Director
of the Center shall provide to the Committees on Appropriations
of the House of Representatives and the Senate an annual report
indicating the number of institutions receiving awards of a grant
or contract under section 481A of such Act, the proposed use of
the funding, the average award size, a list of grant or contract
recipients, and the amount of each award.
OFFICE OF THE DIRECTOR
(INCLUDING TRANSFER OF FUNDS)
For an additional amount for ‘‘Office of the Director’’,
$8,200,000,000: Provided, That $7,400,000,000 shall be transferred
to the Institutes and Centers of the National Institutes of Health
(‘‘NIH’’) and to the Common Fund established under section
402A(c)(1) of the Public Health Service Act in proportion to the
appropriations otherwise made to such Institutes, Centers, and
Common Fund for fiscal year 2009: Provided further, That these
funds shall be used to support additional scientific research and
shall be merged with and be available for the same purposes as
the appropriation or fund to which transferred: Provided further,
That this transfer authority is in addition to any other transfer
authority available to the NIH: Provided further, That none of
these funds may be transferred to ‘‘National Institutes of Health—
Buildings and Facilities’’, the Center for Scientific Review, the
Center for Information Technology, the Clinical Center, or the
Global Fund for HIV/AIDS, Tuberculosis and Malaria: Provided
further, That the funds provided in this Act to the NIH shall
not be subject to the provisions of 15 U.S.C. 638(f)(1) and 15
U.S.C. 638(n)(1): Provided further, That $400,000,000 may be used
to carry out section 215 of division G of Public Law 110–161.
BUILDINGS AND FACILITIES
For an additional amount for ‘‘Buildings and Facilities’’,
$500,000,000, to fund high-priority repair, construction and
improvement projects for National Institutes of Health facilities
on the Bethesda, Maryland campus and other agency locations.
AGENCY
FOR
HEALTHCARE RESEARCH
AND
QUALITY
HEALTHCARE RESEARCH AND QUALITY
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(INCLUDING TRANSFER OF FUNDS)
For an additional amount for ‘‘Healthcare Research and
Quality’’ to carry out titles III and IX of the Public Health Service
Act, part A of title XI of the Social Security Act, and section
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 177
1013 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, $700,000,000 for comparative effectiveness
research: Provided, That of the amount appropriated in this paragraph, $400,000,000 shall be transferred to the Office of the Director
of the National Institutes of Health (‘‘Office of the Director’’) to
conduct or support comparative effectiveness research under section
301 and title IV of the Public Health Service Act: Provided further,
That funds transferred to the Office of the Director may be transferred to the Institutes and Centers of the National Institutes
of Health and to the Common Fund established under section
402A(c)(1) of the Public Health Service Act: Provided further, That
this transfer authority is in addition to any other transfer authority
available to the National Institutes of Health: Provided further,
That within the amount available in this paragraph for the Agency
for Healthcare Research and Quality, not more than 1 percent
shall be made available for additional full-time equivalents.
In addition, $400,000,000 shall be available for comparative
effectiveness research to be allocated at the discretion of the Secretary of Health and Human Services (‘‘Secretary’’): Provided, That
the funding appropriated in this paragraph shall be used to accelerate the development and dissemination of research assessing
the comparative effectiveness of health care treatments and strategies, through efforts that: (1) conduct, support, or synthesize
research that compares the clinical outcomes, effectiveness, and
appropriateness of items, services, and procedures that are used
to prevent, diagnose, or treat diseases, disorders, and other health
conditions; and (2) encourage the development and use of clinical
registries, clinical data networks, and other forms of electronic
health data that can be used to generate or obtain outcomes data:
Provided further, That the Secretary shall enter into a contract
with the Institute of Medicine, for which no more than $1,500,000
shall be made available from funds provided in this paragraph,
to produce and submit a report to the Congress and the Secretary
by not later than June 30, 2009, that includes recommendations
on the national priorities for comparative effectiveness research
to be conducted or supported with the funds provided in this paragraph and that considers input from stakeholders: Provided further,
That the Secretary shall consider any recommendations of the Federal Coordinating Council for Comparative Effectiveness Research
established by section 804 of this Act and any recommendations
included in the Institute of Medicine report pursuant to the preceding proviso in designating activities to receive funds provided
in this paragraph and may make grants and contracts with appropriate entities, which may include agencies within the Department
of Health and Human Services and other governmental agencies,
as well as private sector entities, that have demonstrated experience
and capacity to achieve the goals of comparative effectiveness
research: Provided further, That the Secretary shall publish
information on grants and contracts awarded with the funds provided under this heading within a reasonable time of the obligation
of funds for such grants and contracts and shall disseminate
research findings from such grants and contracts to clinicians,
patients, and the general public, as appropriate: Provided further,
That, to the extent feasible, the Secretary shall ensure that the
recipients of the funds provided by this paragraph offer an opportunity for public comment on the research: Provided further, That
research conducted with funds appropriated under this paragraph
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Contracts.
Reports.
Deadline.
Publication.
Public comment.
Research and
development.
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123 STAT. 178
Reports.
Deadline.
Operating plans.
Deadlines.
Reports.
Deadlines.
PUBLIC LAW 111–5—FEB. 17, 2009
shall be consistent with Departmental policies relating to the inclusion of women and minorities in research: Provided further, That
the Secretary shall provide the Committees on Appropriations of
the House of Representatives and the Senate, the Committee on
Energy and Commerce and the Committee on Ways and Means
of the House of Representatives, and the Committee on Health,
Education, Labor, and Pensions and the Committee on Finance
of the Senate with an annual report on the research conducted
or supported through the funds provided under this heading: Provided further, That the Secretary, jointly with the Directors of
the Agency for Healthcare Research and Quality and the National
Institutes of Health, shall provide the Committees on Appropriations of the House of Representatives and the Senate a fiscal
year 2009 operating plan for the funds appropriated under this
heading prior to making any Federal obligations of such funds
in fiscal year 2009, but not later than July 30, 2009, and a fiscal
year 2010 operating plan for such funds prior to making any Federal
obligations of such funds in fiscal year 2010, but not later than
November 1, 2009, that detail the type of research being conducted
or supported, including the priority conditions addressed; and
specify the allocation of resources within the Department of Health
and Human Services: Provided further, That the Secretary, jointly
with the Directors of the Agency for Healthcare Research and
Quality and the National Institutes of Health, shall provide to
the Committees on Appropriations of the House of Representatives
and the Senate a report on the actual obligations, expenditures,
and unobligated balances for each activity funded under this
heading not later than November 1, 2009, and every 6 months
thereafter as long as funding provided under this heading is available for obligation or expenditure.
ADMINISTRATION
FOR
CHILDREN
AND
FAMILIES
PAYMENTS TO STATES FOR THE CHILD CARE AND DEVELOPMENT
BLOCK GRANT
For an additional amount for ‘‘Payments to States for the
Child Care and Development Block Grant’’, $2,000,000,000, which
shall be used to supplement, not supplant State general revenue
funds for child care assistance for low-income families: Provided,
That, in addition to the amounts required to be reserved by the
States under section 658G of the Child Care and Development
Block Grant Act of 1990, $255,186,000 shall be reserved by the
States for activities authorized under section 658G, of which
$93,587,000 shall be for activities that improve the quality of infant
and toddler care.
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CHILDREN AND FAMILIES SERVICES PROGRAMS
For an additional amount for ‘‘Children and Families Services
Programs’’, $3,150,000,000, which shall be used as follows:
(1) $1,000,000,000 for carrying out activities under the
Head Start Act.
(2) $1,100,000,000 for expansion of Early Head Start programs, as described in section 645A of the Head Start Act:
Provided, That of the funds provided in this paragraph, up
to 10 percent shall be available for the provision of training
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 179
and technical assistance to such programs consistent with section 645A(g)(2) of such Act, and up to 3 percent shall be
available for monitoring the operation of such programs consistent with section 641A of such Act.
(3) $1,000,000,000 for carrying out activities under sections
674 through 679 of the Community Services Block Grant Act,
of which no part shall be subject to section 674(b)(3) of such
Act: Provided, That notwithstanding section 675C(a)(1) and
675C(b) of such Act, 1 percent of the funds made available
to each State from this additional amount shall be used for
benefits enrollment coordination activities relating to the identification and enrollment of eligible individuals and families in
Federal, State, and local benefit programs: Provided further,
That all funds remaining available to a State from this additional amount after application of the previous proviso shall
be distributed to eligible entities as defined in section 673(1)
of such Act: Provided further, That for services furnished under
such Act during fiscal years 2009 and 2010, States may apply
the last sentence of section 673(2) of such Act by substituting
‘‘200 percent’’ for ‘‘125 percent’’.
(4) $50,000,000 for carrying out activities under section
1110 of the Social Security Act.
ADMINISTRATION
ON
AGING
AGING SERVICES PROGRAMS
For an additional amount for ‘‘Aging Services Programs’’ under
subparts 1 and 2 of part C, of title III, and under title VI, of
the Older Americans Act of 1965, $100,000,000, of which
$65,000,000 shall be for Congregate Nutrition Services, $32,000,000
shall be for Home-Delivered Nutrition Services and $3,000,000 shall
be for Nutrition Services for Native Americans.
OFFICE
OF THE
SECRETARY
OFFICE OF THE NATIONAL COORDINATOR FOR HEALTH INFORMATION
TECHNOLOGY
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(INCLUDING TRANSFER OF FUNDS)
For an additional amount for ‘‘Office of the National Coordinator for Health Information Technology’’, $2,000,000,000, to carry
out title XIII of this Act, to remain available until expended: Provided, That of such amount, the Secretary of Health and Human
Services shall transfer $20,000,000 to the Director of the National
Institute of Standards and Technology in the Department of Commerce for continued work on advancing health care information
enterprise integration through activities such as technical standards
analysis and establishment of conformance testing infrastructure,
so long as such activities are coordinated with the Office of the
National Coordinator for Health Information Technology: Provided
further, That $300,000,000 is to support regional or sub-national
efforts toward health information exchange: Provided further, That
0.25 percent of the funds provided in this paragraph may be used
for administration of such funds: Provided further, That funds available under this heading shall become available for obligation only
upon submission of an annual operating plan by the Secretary
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Operating plan.
Deadline.
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123 STAT. 180
Operating plans.
Deadlines.
Reports.
Deadlines.
PUBLIC LAW 111–5—FEB. 17, 2009
to the Committees on Appropriations of the House of Representatives and the Senate: Provided further, That the fiscal year 2009
operating plan shall be provided not later than 90 days after enactment of this Act and that subsequent annual operating plans shall
be provided not later than November 1 of each year: Provided
further, That these operating plans shall describe how expenditures
are aligned with the specific objectives, milestones, and metrics
of the Federal Health Information Technology Strategic Plan,
including any subsequent updates to the Plan; the allocation of
resources within the Department of Health and Human Services
and other Federal agencies; and the identification of programs
and activities that are supported: Provided further, That the Secretary shall provide to the Committees on Appropriations of the
House of Representatives and the Senate a report on the actual
obligations, expenditures, and unobligated balances for each major
set of activities not later than November 1, 2009, and every 6
months thereafter as long as funding provided under this heading
is available for obligation or expenditure.
OFFICE OF INSPECTOR GENERAL
For an additional amount for the ‘‘Office of Inspector General’’,
$17,000,000 which shall remain available until September 30, 2012.
PUBLIC HEALTH AND SOCIAL SERVICES EMERGENCY FUND
For an additional amount for ‘‘Public Health and Social Services
Emergency Fund’’ to improve information technology security at
the Department of Health and Human Services, $50,000,000.
PREVENTION AND WELLNESS FUND
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(INCLUDING TRANSFER OF FUNDS)
Contracts.
Evaluations.
Deadline.
VerDate Nov 24 2008
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For necessary expenses for a ‘‘Prevention and Wellness Fund’’
to be administered through the Department of Health and Human
Services, Office of the Secretary, $1,000,000,000: Provided, That
of the amount provided in this paragraph, $300,000,000 shall be
transferred to the Centers for Disease Control and Prevention
(‘‘CDC’’) as an additional amount to carry out the immunization
program (‘‘section 317 immunization program’’) authorized by section 317(a), (j), and (k)(1) of the Public Health Service Act (‘‘PHS
Act’’): Provided further, That of the amount provided in this paragraph, $650,000,000 shall be to carry out evidence-based clinical
and community-based prevention and wellness strategies authorized
by the PHS Act, as determined by the Secretary, that deliver
specific, measurable health outcomes that address chronic disease
rates: Provided further, That funds appropriated in the preceding
proviso may be transferred to other appropriation accounts of the
Department of Health and Human Services, as determined by the
Secretary to be appropriate: Provided further, That of the amount
appropriated in this paragraph, $50,000,000 shall be provided to
States for an additional amount to carry out activities to implement
healthcare associated infections reduction strategies: Provided further, That not more than 0.5 percent of funds made available
in this paragraph may be used for management and oversight
expenses in the office or division of the Department of Health
and Human Services administering the funds: Provided further,
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 181
That the Secretary shall, directly or through contracts with public
or private entities, provide for annual evaluations of programs
carried out with funds provided under this heading in order to
determine the quality and effectiveness of the programs: Provided
further, That the Secretary shall, not later than 1 year after the
date of enactment of this Act, submit to the Committees on Appropriations of the House of Representatives and the Senate, the
Committee on Energy and Commerce of the House of Representatives, and the Committee on Health, Education, Labor, and Pensions
of the Senate, a report summarizing the annual evaluations of
programs from the preceding proviso: Provided further, That the
Secretary shall provide to the Committees on Appropriations of
the House of Representatives and the Senate an operating plan
for the Prevention and Wellness Fund prior to making any Federal
obligations of funds provided in this paragraph (excluding funds
to carry out the section 317 immunization program), but not later
than 90 days after the date of enactment of this Act, that indicates
the prevention priorities to be addressed; provides measurable goals
for each prevention priority; details the allocation of resources
within the Department of Health and Human Services; and identifies which programs or activities are supported, including descriptions of any new programs or activities: Provided further, That
the Secretary shall provide to the Committees on Appropriations
of the House of Representatives and the Senate a report on the
actual obligations, expenditures, and unobligated balances for each
activity funded under this heading not later than November 1,
2009, and every 6 months thereafter as long as funding provided
under this heading is available for obligation or expenditure.
Reports.
Deadline.
Operating plan.
Deadline.
Reports.
Deadlines.
DEPARTMENT OF EDUCATION
EDUCATION
FOR THE
DISADVANTAGED
Grants.
For an additional amount for ‘‘Education for the Disadvantaged’’
to carry out title I of the Elementary and Secondary Education
Act of 1965 (‘‘ESEA’’), $13,000,000,000: Provided, That
$5,000,000,000 shall be available for targeted grants under section
1125 of the ESEA: Provided further, That $5,000,000,000 shall
be available for education finance incentive grants under section
1125A of the ESEA: Provided further, That $3,000,000,000 shall
be for school improvement grants under section 1003(g) of the
ESEA: Provided further, That each local educational agency
receiving funds available under this paragraph shall be required
to file with the State educational agency, no later than December
1, 2009, a school-by-school listing of per-pupil educational expenditures from State and local sources during the 2008–2009 academic
year: Provided further, That each State educational agency shall
report that information to the Secretary of Education by March
31, 2010.
Deadline.
Expenditures.
Reports.
Deadline.
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IMPACT AID
For an additional amount for ‘‘Impact Aid’’ to carry out section
8007 of title VIII of the Elementary and Secondary Education
Act of 1965, $100,000,000, which shall be expended pursuant to
the requirements of section 805.
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123 STAT. 182
PUBLIC LAW 111–5—FEB. 17, 2009
SCHOOL IMPROVEMENT PROGRAMS
Grants.
Deadline.
Deadline.
For an additional amount for ‘‘School Improvement Programs’’
to carry out subpart 1, part D of title II of the Elementary and
Secondary Education Act of 1965 (‘‘ESEA’’), and subtitle B of title
VII of the McKinney-Vento Homeless Assistance Act, $720,000,000:
Provided, That $650,000,000 shall be available for subpart 1, part
D of title II of the ESEA: Provided further, That the Secretary
shall allot $70,000,000 for grants under McKinney-Vento to each
State in proportion to the number of homeless students identified
by the State during the 2007–2008 school year relative to the
number of such children identified nationally during that school
year: Provided further, That State educational agencies shall
subgrant the McKinney-Vento funds to local educational agencies
on a competitive basis or according to a formula based on the
number of homeless students identified by the local educational
agencies in the State: Provided further, That the Secretary shall
distribute the McKinney-Vento funds to the States not later than
60 days after the date of the enactment of this Act: Provided
further, That each State shall subgrant the McKinney-Vento funds
to local educational agencies not later than 120 days after receiving
its grant from the Secretary.
INNOVATION
Evaluation.
AND IMPROVEMENT
For an additional amount for ‘‘Innovation and Improvement’’
to carry out subpart 1, part D of title V of the Elementary and
Secondary Education Act of 1965 (‘‘ESEA’’), $200,000,000: Provided,
That these funds shall be expended as directed in the fifth, sixth,
and seventh provisos under the heading ‘‘Innovation and Improvement’’ in the Department of Education Appropriations Act, 2008:
Provided further, That a portion of these funds shall also be used
for a rigorous national evaluation by the Institute of Education
Sciences, utilizing randomized controlled methodology to the extent
feasible, that assesses the impact of performance-based teacher
and principal compensation systems supported by the funds provided in this Act on teacher and principal recruitment and retention
in high-need schools and subjects: Provided further, That the Secretary may reserve up to 1 percent of the amount made available
under this heading for management and oversight of the activities
supported with those funds.
SPECIAL EDUCATION
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Deadline.
Grants.
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For an additional amount for ‘‘Special Education’’ for carrying
out parts B and C of the Individuals with Disabilities Education
Act (‘‘IDEA’’), $12,200,000,000, of which $11,300,000,000 shall be
available for section 611 of the IDEA: Provided, That if every
State, as defined by section 602(31) of the IDEA, reaches its maximum allocation under section 611(d)(3)(B)(iii) of the IDEA, and
there are remaining funds, such funds shall be proportionally allocated to each State subject to the maximum amounts contained
in section 611(a)(2) of the IDEA: Provided further, That by July
1, 2009, the Secretary of Education shall reserve the amount needed
for grants under section 643(e) of the IDEA, with any remaining
funds to be allocated in accordance with section 643(c) of the IDEA:
Provided further, That the total amount for each of sections
611(b)(2) and 643(b)(1) of the IDEA, under this and all other Acts,
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 183
for fiscal year 2009, whenever enacted, shall be equal to the
amounts respectively available for these activities under these sections during fiscal year 2008 increased by the amount of inflation
as specified in section 619(d)(2)(B) of the IDEA: Provided further,
That $400,000,000 shall be available for section 619 of the IDEA
and $500,000,000 shall be available for part C of the IDEA.
REHABILITATION SERVICES
AND
DISABILITY RESEARCH
Grants.
For an additional amount for ‘‘Rehabilitation Services and Disability Research’’ for providing grants to States to carry out the
Vocational Rehabilitation Services program under part B of title
I and parts B and C of chapter 1 and chapter 2 of title VII
of the Rehabilitation Act of 1973, $680,000,000: Provided, That
$540,000,000 shall be available for part B of title I of the Rehabilitation Act: Provided further, That funds provided herein shall not
be considered in determining the amount required to be appropriated under section 100(b)(1) of the Rehabilitation Act of 1973
in any fiscal year: Provided further, That, notwithstanding section
7(14)(A), the Federal share of the costs of vocational rehabilitation
services provided with the funds provided herein shall be 100 percent: Provided further, That $140,000,000 shall be available for
parts B and C of chapter 1 and chapter 2 of title VII of the
Rehabilitation Act: Provided further, That $18,200,000 shall be
for State Grants, $87,500,000 shall be for independent living centers, and $34,300,000 shall be for services for older blind individuals.
STUDENT FINANCIAL ASSISTANCE
For an additional amount for ‘‘Student Financial Assistance’’
to carry out subpart 1 of part A and part C of title IV of the
Higher Education Act of 1965 (‘‘HEA’’), $15,840,000,000, which shall
remain available through September 30, 2011: Provided, That
$15,640,000,000 shall be available for subpart 1 of part A of title
IV of the HEA: Provided further, That $200,000,000 shall be available for part C of title IV of the HEA.
The maximum Pell Grant for which a student shall be eligible
during award year 2009–2010 shall be $4,860.
20 USC 1070a
note.
STUDENT AID ADMINISTRATION
For an additional amount for ‘‘Student Aid Administration’’
to carry out part D of title I, and subparts 1, 3, and 4 of part
A, and parts B, C, D, and E of title IV of the Higher Education
Act of 1965, $60,000,000.
HIGHER EDUCATION
For an additional amount for ‘‘Higher Education’’ to carry out
part A of title II of the Higher Education Act of 1965, $100,000,000.
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INSTITUTE
OF
EDUCATION SCIENCES
For an additional amount for ‘‘Institute of Education Sciences’’
to carry out section 208 of the Educational Technical Assistance
Act, $250,000,000, which may be used for Statewide data systems
that include postsecondary and workforce information, of which
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PUBLIC LAW 111–5—FEB. 17, 2009
up to $5,000,000 may be used for State data coordinators and
for awards to public or private organizations or agencies to improve
data coordination.
DEPARTMENTAL MANAGEMENT
OFFICE OF THE INSPECTOR GENERAL
For an additional amount for the ‘‘Office of the Inspector General’’, $14,000,000, which shall remain available through September
30, 2012, for salaries and expenses necessary for oversight and
audit of programs, grants, and projects funded in this Act.
RELATED AGENCIES
CORPORATION
FOR
NATIONAL
AND
COMMUNITY SERVICE
OPERATING EXPENSES
(INCLUDING TRANSFER OF FUNDS)
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Operating plans.
Deadlines.
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For an additional amount for ‘‘Operating Expenses’’ to carry
out the Domestic Volunteer Service Act of 1973 (‘‘1973 Act’’) and
the National and Community Service Act of 1990 (‘‘1990 Act’’),
$160,000,000: Provided, That $89,000,000 of the funds made available in this paragraph shall be used to make additional awards
to existing AmeriCorps grantees and may be used to provide adjustments to awards under subtitle C of title I of the 1990 Act made
prior to September 30, 2010 for which the Chief Executive Officer
of the Corporation for National and Community Service (‘‘CEO’’)
determines that a waiver of the Federal share limitation is warranted under section 2521.70 of title 45 of the Code of Federal
Regulations: Provided further, That of the amount made available
in this paragraph, not less than $6,000,000 shall be transferred
to ‘‘Salaries and Expenses’’ for necessary expenses relating to
information technology upgrades, of which up to $800,000 may
be used to administer the funds provided in this paragraph: Provided further, That of the amount provided in this paragraph,
not less than $65,000,000 shall be for programs under title I,
part A of the 1973 Act: Provided further, That funds provided
in the previous proviso shall not be made available in connection
with cost-share agreements authorized under section 192A(g)(10)
of the 1990 Act: Provided further, That of the funds available
under this heading, up to 20 percent of funds allocated to grants
authorized under section 124(b) of title I, subtitle C of the 1990
Act may be used to administer, reimburse, or support any national
service program under section 129(d)(2) of the 1990 Act: Provided
further, That, except as provided herein and in addition to requirements identified herein, funds provided in this paragraph shall
be subject to the terms and conditions under which funds were
appropriated in fiscal year 2008: Provided further, That the CEO
shall provide the Committees on Appropriations of the House of
Representatives and the Senate a fiscal year 2009 operating plan
for the funds appropriated in this paragraph prior to making any
Federal obligations of such funds in fiscal year 2009, but not later
than 90 days after the date of enactment of this Act, and a fiscal
year 2010 operating plan for such funds prior to making any Federal
obligations of such funds in fiscal year 2010, but not later than
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123 STAT. 185
November 1, 2009, that detail the allocation of resources and the
increased number of members supported by the AmeriCorps programs: Provided further, That the CEO shall provide to the Committees on Appropriations of the House of Representatives and the
Senate a report on the actual obligations, expenditures, and unobligated balances for each activity funded under this heading not
later than November 1, 2009, and every 6 months thereafter as
long as funding provided under this heading is available for obligation or expenditure.
OFFICE
OF INSPECTOR
Reports.
Deadline.
GENERAL
For an additional amount for the ‘‘Office of Inspector General’’,
$1,000,000, which shall remain available until September 30, 2012.
NATIONAL SERVICE TRUST
(INCLUDING TRANSFER OF FUNDS)
For an additional amount for ‘‘National Service Trust’’ established under subtitle D of title I of the National and Community
Service Act of 1990 (‘‘1990 Act’’), $40,000,000, which shall remain
available until expended: Provided, That the Corporation for
National and Community Service may transfer additional funds
from the amount provided within ‘‘Operating Expenses’’ for grants
made under subtitle C of title I of the 1990 Act to this appropriation
upon determination that such transfer is necessary to support the
activities of national service participants and after notice is transmitted to the Committees on Appropriations of the House of Representatives and the Senate: Provided further, That the amount
appropriated for or transferred to the National Service Trust may
be invested under section 145(b) of the 1990 Act without regard
to the requirement to apportion funds under 31 U.S.C. 1513(b).
Notification.
SOCIAL SECURITY ADMINISTRATION
LIMITATION ON ADMINISTRATIVE EXPENSES
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(INCLUDING TRANSFER OF FUNDS)
For an additional amount for ‘‘Limitation on Administrative
Expenses’’, $1,000,000,000 shall be available as follows:
(1) $500,000,000 shall remain available until expended for
necessary expenses of the replacement of the National Computer Center and the information technology costs associated
with such Center: Provided, That the Commissioner of Social
Security shall notify the Committees on Appropriations of the
House of Representatives and the Senate not later than 10
days prior to each public notice soliciting bids related to site
selection and construction and prior to the lease or purchase
of such site: Provided further, That the construction plan and
site selection for such center shall be subject to review and
approval by the Office of Management and Budget: Provided
further, That such center shall continue to be a governmentoperated facility; and
(2) $500,000,000 for processing disability and retirement
workloads, including information technology acquisitions and
research in support of such activities: Provided, That up to
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Deadline.
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PUBLIC LAW 111–5—FEB. 17, 2009
$40,000,000 may be used by the Commissioner of Social Security for health information technology research and activities
to facilitate the adoption of electronic medical records in disability claims, including the transfer of funds to ‘‘Supplemental
Security Income Program’’ to carry out activities under section
1110 of the Social Security Act.
OFFICE
OF INSPECTOR
GENERAL
For an additional amount for the ‘‘Office of Inspector General’’,
$2,000,000, which shall remain available through September 30,
2012, for salaries and expenses necessary for oversight and audit
of programs, projects, and activities funded in this Act.
GENERAL PROVISIONS—THIS TITLE
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Deadline.
Operating plan.
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SEC. 801. (a) Up to 1 percent of the funds made available
to the Department of Labor in this title may be used for the
administration, management, and oversight of the programs, grants,
and activities funded by such appropriation, including the evaluation of the use of such funds.
(b) Funds designated for these purposes may be available for
obligation through September 30, 2010.
(c) Not later than 30 days after enactment of this Act, the
Secretary of Labor shall provide an operating plan describing the
proposed use of funds for the purposes described in (a).
SEC. 802. REPORT ON THE IMPACT OF PAST AND FUTURE MINIMUM WAGE INCREASES. (a) IN GENERAL.—Section 8104 of the U.S.
Troop Readiness, Veterans’ Care, Katrina Recovery, and Iraq
Accountability Appropriations Act, 2007 (Public Law 110–28; 121
Stat. 189) is amended to read as follows:
29 USC 206 note.
‘‘SEC. 8104. REPORT ON THE IMPACT OF PAST AND FUTURE MINIMUM
WAGE INCREASES.
Effective date.
‘‘(a) STUDY.—Beginning on the date that is 60 days after the
date of enactment of this Act, and every year thereafter until
the minimum wage in the respective territory is $7.25 per hour,
the Government Accountability Office shall conduct a study to—
‘‘(1) assess the impact of the minimum wage increases
that occurred in American Samoa and the Commonwealth of
the Northern Mariana Islands in 2007 and 2008, as required
under Public Law 110–28, on the rates of employment and
the living standards of workers, with full consideration of the
other factors that impact rates of employment and the living
standards of workers such as inflation in the cost of food,
energy, and other commodities; and
‘‘(2) estimate the impact of any further wage increases
on rates of employment and the living standards of workers
in American Samoa and the Commonwealth of the Northern
Mariana Islands, with full consideration of the other factors
that may impact the rates of employment and the living standards of workers, including assessing how the profitability of
major private sector firms may be impacted by wage increases
in comparison to other factors such as energy costs and the
value of tax benefits.
‘‘(b) REPORT.—No earlier than March 15, 2010, and not later
than April 15, 2010, the Government Accountability Office shall
transmit its first report to Congress concerning the findings of
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 187
the study required under subsection (a). The Government Accountability Office shall transmit any subsequent reports to Congress
concerning the findings of a study required by subsection (a)
between March 15 and April 15 of each year.
‘‘(c) ECONOMIC INFORMATION.—To provide sufficient economic
data for the conduct of the study under subsection (a) the Bureau
of the Census of the Department of Commerce shall include and
separately report on American Samoa, the Commonwealth of the
Northern Mariana Islands, Guam, and the Virgin Islands in its
County Business Patterns data with the same regularity and to
the same extent as each Bureau collects and reports such data
for the 50 States. In the event that the inclusion of American
Samoa, the Commonwealth of the Northern Mariana Islands, Guam,
and the Virgin Islands in such surveys and data compilations
requires time to structure and implement, the Bureau of the Census
shall in the interim annually report the best available data that
can feasibly be secured with respect to such territories. Such interim
report shall describe the steps the Bureau will take to improve
future data collection in the territories to achieve comparability
with the data collected in the United States. The Bureau of the
Census, together with the Department of the Interior, shall coordinate their efforts to achieve such improvements.’’.
(b) EFFECTIVE DATE.—The amendment made by this section
shall take effect on the date of enactment of this Act.
SEC. 803. ELIGIBLE EMPLOYEES IN THE RECREATIONAL MARINE
INDUSTRY. Section 2(3)(F) of the Longshore and Harbor Workers’
Compensation Act (33 U.S.C. 902(3)(F)) is amended—
(1) by striking ‘‘, repair or dismantle’’; and
(2) by striking the semicolon and inserting ‘‘, or individuals
employed to repair any recreational vessel, or to dismantle
any part of a recreational vessel in connection with the repair
of such vessel;’’.
SEC. 804. FEDERAL COORDINATING COUNCIL FOR COMPARATIVE
EFFECTIVENESS RESEARCH. (a) ESTABLISHMENT.—There is hereby
established a Federal Coordinating Council for Comparative
Effectiveness Research (in this section referred to as the ‘‘Council’’).
(b) PURPOSE.—The Council shall foster optimum coordination
of comparative effectiveness and related health services research
conducted or supported by relevant Federal departments and agencies, with the goal of reducing duplicative efforts and encouraging
coordinated and complementary use of resources.
(c) DUTIES.—The Council shall—
(1) assist the offices and agencies of the Federal Government, including the Departments of Health and Human Services, Veterans Affairs, and Defense, and other Federal departments or agencies, to coordinate the conduct or support of
comparative effectiveness and related health services research;
and
(2) advise the President and Congress on—
(A) strategies with respect to the infrastructure needs
of comparative effectiveness research within the Federal
Government; and
(B) organizational expenditures for comparative
effectiveness research by relevant Federal departments and
agencies.
(d) MEMBERSHIP.—
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29 USC 206 note.
42 USC 299b–8.
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PUBLIC LAW 111–5—FEB. 17, 2009
(1) NUMBER AND APPOINTMENT.—The Council shall be composed of not more than 15 members, all of whom are senior
Federal officers or employees with responsibility for healthrelated programs, appointed by the President, acting through
the Secretary of Health and Human Services (in this section
referred to as the ‘‘Secretary’’). Members shall first be appointed
to the Council not later than 30 days after the date of the
enactment of this Act.
(2) MEMBERS.—
(A) IN GENERAL.—The members of the Council shall
include one senior officer or employee from each of the
following agencies:
(i) The Agency for Healthcare Research and
Quality.
(ii) The Centers for Medicare and Medicaid Services.
(iii) The National Institutes of Health.
(iv) The Office of the National Coordinator for
Health Information Technology.
(v) The Food and Drug Administration.
(vi) The Veterans Health Administration within
the Department of Veterans Affairs.
(vii) The office within the Department of Defense
responsible for management of the Department of
Defense Military Health Care System.
(B) QUALIFICATIONS.—At least half of the members
of the Council shall be physicians or other experts with
clinical expertise.
(3) CHAIRMAN; VICE CHAIRMAN.—The Secretary shall serve
as Chairman of the Council and shall designate a member
to serve as Vice Chairman.
(e) REPORTS.—
(1) INITIAL REPORT.—Not later than June 30, 2009, the
Council shall submit to the President and the Congress a
report containing information describing current Federal activities on comparative effectiveness research and recommendations for such research conducted or supported from funds
made available for allotment by the Secretary for comparative
effectiveness research in this Act.
(2) ANNUAL REPORT.—The Council shall submit to the President and Congress an annual report regarding its activities
and recommendations concerning the infrastructure needs,
organizational expenditures and opportunities for better
coordination of comparative effectiveness research by relevant
Federal departments and agencies.
(f) STAFFING; SUPPORT.—From funds made available for allotment by the Secretary for comparative effectiveness research in
this Act, the Secretary shall make available not more than 1 percent
to the Council for staff and administrative support.
(g) RULES OF CONSTRUCTION.—
(1) COVERAGE.—Nothing in this section shall be construed
to permit the Council to mandate coverage, reimbursement,
or other policies for any public or private payer.
(2) REPORTS AND RECOMMENDATIONS.—None of the reports
submitted under this section or recommendations made by the
Council shall be construed as mandates or clinical guidelines
for payment, coverage, or treatment.
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 189
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SEC. 805. GRANTS FOR IMPACT AID CONSTRUCTION. (a) RESERVATION FOR MANAGEMENT AND OVERSIGHT.—From the funds appropriated to carry out this section, the Secretary may reserve up
to 1 percent for management and oversight of the activities carried
out with those funds.
(b) CONSTRUCTION PAYMENTS.—
(1) FORMULA GRANTS.—(A) IN GENERAL.—From 40 percent
of the amount not reserved under subsection (a), the Secretary
shall make payments in accordance with section 8007(a) of
the Elementary and Secondary Education Act of 1965 (20 U.S.C.
7707(a)), except that the amount of such payments shall be
determined in accordance with subparagraph (B).
(B) AMOUNT OF PAYMENTS.—The Secretary shall make
a payment to each local educational agency eligible for
a payment under section 8007(a) of the Elementary and
Secondary Education Act of 1965 (20 U.S.C. 7707(a)) in
an amount that bears the same relationship to the funds
made available under subparagraph (A) as the number
of children determined under subparagraphs (B), (C), and
(D)(i) of section 8003(a)(1) of the Elementary and Secondary
Education Act of 1965 (20 U.S.C. 7703(a)(1)(B), (C), and
(D)(i)) who were in average daily attendance in the local
educational agency for the most recent year for which
such information is available bears to the number of such
children in all the local educational agencies eligible for
a payment under section 8007(a) of the Elementary and
Secondary Education Act of 1965 (20 U.S.C. 7707(a)).
(2) COMPETITIVE GRANTS.—From 60 percent of the amount
not reserved under subsection (a), the Secretary—
(A) shall award emergency grants in accordance with
section 8007(b) of the Elementary and Secondary Education
Act of 1965 (20 U.S.C. 7707(b)) to eligible local educational
agencies to enable the agencies to carry out emergency
repairs of school facilities; and
(B) may award modernization grants in accordance
with section 8007(b) of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7707(b)) to eligible local
educational agencies to enable the agencies to carry out
the modernization of school facilities.
(3) PROVISIONS NOT TO APPLY.—Paragraphs (2), (3), (4),
(5)(A)(i), and (5)(A)(vi) of section 8007(b) of the Elementary
and Secondary Education Act of 1965 (20 U.S.C. 7707(b)(2),
(3), (4), (5)(A)(i), and (5)(A)(vi)) shall not apply to grants made
under paragraph (2).
(4) ELIGIBILITY.—A local educational agency is eligible to
receive a grant under paragraph (2) if the local educational
agency—
(A) was eligible to receive a payment under section
8002 or 8003 of the Elementary and Secondary Education
Act of 1965 (20 U.S.C. 7702 and 7703) for fiscal year
2008; and
(B) has—
(i) a total taxable assessed value of real property
that may be taxed for school purposes of less than
$100,000,000; or
(ii) an assessed value of real property per student
that may be taxed for school purposes that is less
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PUBLIC LAW 111–5—FEB. 17, 2009
than the average of the assessed value of real property
per student that may be taxed for school purposes
in the State in which the local educational agency
is located.
(5) CRITERIA FOR GRANTS.—In awarding grants under paragraph (2), the Secretary shall consider the following criteria:
(A) Whether the facility poses a health or safety threat
to students and school personnel, including noncompliance
with building codes and inaccessibility for persons with
disabilities, or whether the existing building capacity meets
the needs of the current enrollment and supports the provision of comprehensive educational services to meet current
standards in the State in which the local educational
agency is located.
(B) The extent to which the new design and proposed
construction utilize energy efficient and recyclable materials.
(C) The extent to which the new design and proposed
construction utilizes non-traditional or alternative building
methods to expedite construction and project completion
and maximize cost efficiency.
(D) The feasibility of project completion within 24
months from award.
(E) The availability of other resources for the proposed
project.
SEC. 806. MANDATORY PELL GRANTS. Section 401(b)(9)(A) of
the Higher Education Act of 1965 (20 U.S.C. 1070a(b)(9)(A)) is
amended—
(1) in clause (ii), by striking ‘‘$2,090,000,000’’ and inserting
‘‘$2,733,000,000’’; and
(2) in clause (iii), by striking ‘‘$3,030,000,000’’ and inserting
‘‘$3,861,000,000’’.
SEC. 807. (a) IN GENERAL.—Notwithstanding any other provision of law, and in order to begin expenditures and activities under
this Act as quickly as possible consistent with prudent management,
the Secretary of Education may—
(1) award fiscal year 2009 funds to States and local educational agencies on the basis of eligibility determinations made
for the award of fiscal year 2008 funds; and
(2) require States to make prompt allocations to local educational agencies.
(b) INTEREST NOT TO ACCRUE.—Notwithstanding sections 3335
and 6503 of title 31, United States Code, or any other provision
of law, the United States shall not be liable to any State or other
entity for any interest or fee with respect to any funds under
this Act that are allocated by the Secretary of Education to the
State or other entity within 30 days of the date on which they
are available for obligation.
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 191
TITLE IX—LEGISLATIVE BRANCH
GOVERNMENT ACCOUNTABILITY OFFICE
SALARIES
AND
EXPENSES
For an additional amount for ‘‘Salaries and Expenses’’ of the
Government Accountability Office, $25,000,000, to remain available
until September 30, 2010.
GENERAL PROVISIONS—THIS TITLE
SEC. 901. GOVERNMENT ACCOUNTABILITY OFFICE REVIEWS AND
REPORTS. (a) REVIEWS AND REPORTS.—
(1) IN GENERAL.—The Comptroller General shall conduct
bimonthly reviews and prepare reports on such reviews on
the use by selected States and localities of funds made available
in this Act. Such reports, along with any audits conducted
by the Comptroller General of such funds, shall be posted
on the Internet and linked to the website established under
this Act by the Recovery Accountability and Transparency
Board.
(2) REDACTIONS.—Any portion of a report or audit under
this subsection may be redacted when made publicly available,
if that portion would disclose information that is not subject
to disclosure under section 552 of title 5, United States Code
(commonly known as the Freedom of Information Act).
(b) EXAMINATION OF RECORDS.—The Comptroller General may
examine any records related to obligations and use by any Federal,
State, or local government agency of funds made available in this
Act.
SEC. 902. ACCESS OF GOVERNMENT ACCOUNTABILITY OFFICE.
(a) ACCESS.—Each contract awarded using funds made available
in this Act shall provide that the Comptroller General and his
representatives are authorized—
(1) to examine any records of the contractor or any of
its subcontractors, or any State or local agency administering
such contract, that directly pertain to, and involve transactions
relating to, the contract or subcontract; and
(2) to interview any officer or employee of the contractor
or any of its subcontractors, or of any State or local government
agency administering the contract, regarding such transactions.
(b) RELATIONSHIP TO EXISTING AUTHORITY.—Nothing in this
section shall be interpreted to limit or restrict in any way any
existing authority of the Comptroller General.
Internet posting.
TITLE X—MILITARY CONSTRUCTION AND VETERANS
AFFAIRS
DEPARTMENT OF DEFENSE
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MILITARY CONSTRUCTION, ARMY
For an additional amount for ‘‘Military Construction, Army’’,
$180,000,000, to remain available until September 30, 2013: Provided, That notwithstanding any other provision of law, such funds
may be obligated and expended to carry out planning and design
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123 STAT. 192
Deadline.
Expenditure
plan.
PUBLIC LAW 111–5—FEB. 17, 2009
and military construction projects in the United States not otherwise authorized by law: Provided further, That of the amount provided under this heading, $80,000,000 shall be for child development
centers, and $100,000,000 shall be for warrior transition complexes:
Provided further, That not later than 30 days after the date of
enactment of this Act, the Secretary of Defense shall submit to
the Committees on Appropriations of both Houses of Congress an
expenditure plan for funds provided under this heading.
MILITARY CONSTRUCTION, NAVY
Deadline.
Expenditure
plan.
AND
MARINE CORPS
For an additional amount for ‘‘Military Construction, Navy
and Marine Corps’’, $280,000,000, to remain available until September 30, 2013: Provided, That notwithstanding any other provision of law, such funds may be obligated and expended to carry
out planning and design and military construction projects in the
United States not otherwise authorized by law: Provided further,
That of the amount provided under this heading, $100,000,000
shall be for troop housing, $80,000,000 shall be for child development centers, and $100,000,000 shall be for energy conservation
and alternative energy projects: Provided further, That not later
than 30 days after the date of enactment of this Act, the Secretary
of Defense shall submit to the Committees on Appropriations of
both Houses of Congress an expenditure plan for funds provided
under this heading.
MILITARY CONSTRUCTION, AIR FORCE
Deadline.
Expenditure
plan.
For an additional amount for ‘‘Military Construction, Air Force’’,
$180,000,000, to remain available until September 30, 2013: Provided, That notwithstanding any other provision of law, such funds
may be obligated and expended to carry out planning and design
and military construction projects in the United States not otherwise authorized by law: Provided further, That of the amount provided under this heading, $100,000,000 shall be for troop housing
and $80,000,000 shall be for child development centers: Provided
further, That not later than 30 days after the date of enactment
of this Act, the Secretary of Defense shall submit to the Committees
on Appropriations of both Houses of Congress an expenditure plan
for funds provided under this heading.
MILITARY CONSTRUCTION, DEFENSE-WIDE
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Expenditure
plan.
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For an additional amount for ‘‘Military Construction, DefenseWide’’, $1,450,000,000, to remain available until September 30,
2013: Provided, That notwithstanding any other provision of law,
such funds may be obligated and expended to carry out planning
and design and military construction projects in the United States
not otherwise authorized by law: Provided further, That of the
amount provided under this heading, $1,330,000,000 shall be for
the construction of hospitals and $120,000,000 shall be for the
Energy Conservation Investment Program: Provided further, That
not later than 30 days after the date of enactment of this Act,
the Secretary of Defense shall submit to the Committees on Appropriations of both Houses of Congress an expenditure plan for funds
provided under this heading.
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 193
MILITARY CONSTRUCTION, ARMY NATIONAL GUARD
For an additional amount for ‘‘Military Construction, Army
National Guard’’, $50,000,000, to remain available until September
30, 2013: Provided, That notwithstanding any other provision of
law, such funds may be obligated and expended to carry out planning and design and military construction projects in the United
States not otherwise authorized by law: Provided further, That
not later than 30 days after the date of enactment of this Act,
the Secretary of Defense, in consultation with the Director of the
Army National Guard, shall submit to the Committees on Appropriations of both Houses of Congress an expenditure plan for funds
provided under this heading.
Deadline.
Expenditure
plan.
MILITARY CONSTRUCTION, AIR NATIONAL GUARD
For an additional amount for ‘‘Military Construction, Air
National Guard’’, $50,000,000, to remain available until September
30, 2013: Provided, That notwithstanding any other provision of
law, such funds may be obligated and expended to carry out planning and design and military construction projects in the United
States not otherwise authorized by law: Provided further, That
not later than 30 days after the date of enactment of this Act,
the Secretary of Defense, in consultation with the Director of the
Air National Guard, shall submit to the Committees on Appropriations of both Houses of Congress an expenditure plan for funds
provided under this heading.
Deadline.
Expenditure
plan.
FAMILY HOUSING CONSTRUCTION, ARMY
For an additional amount for ‘‘Family Housing Construction,
Army’’, $34,507,000, to remain available until September 30, 2013:
Provided, That notwithstanding any other provision of law, such
funds may be obligated and expended to carry out planning and
design and military construction projects in the United States not
otherwise authorized by law: Provided further, That within 30 days
of enactment of this Act, the Secretary of Defense shall submit
to the Committees on Appropriations of both Houses of Congress
an expenditure plan for funds provided under this heading.
FAMILY HOUSING OPERATION
AND
Deadline.
Expenditure
plan.
MAINTENANCE, ARMY
For an additional amount for ‘‘Family Housing Operation and
Maintenance, Army’’, $3,932,000: Provided, That notwithstanding
any other provision of law, such funds may be obligated and
expended for maintenance and repair and minor construction
projects in the United States not otherwise authorized by law.
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FAMILY HOUSING CONSTRUCTION, AIR FORCE
For an additional amount for ‘‘Family Housing Construction,
Air Force’’, $80,100,000, to remain available until September 30,
2013: Provided, That notwithstanding any other provision of law,
such funds may be obligated and expended to carry out planning
and design and military construction projects in the United States
not otherwise authorized by law: Provided further, That within
30 days of enactment of this Act, the Secretary of Defense shall
submit to the Committees on Appropriations of both Houses of
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Expenditure
plan.
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PUBLIC LAW 111–5—FEB. 17, 2009
Congress an expenditure plan for funds provided under this
heading.
FAMILY HOUSING OPERATION
AND
MAINTENANCE, AIR FORCE
For an additional amount for ‘‘Family Housing Operation and
Maintenance, Air Force’’, $16,461,000: Provided, That notwithstanding any other provision of law, such funds may be obligated
and expended for maintenance and repair and minor construction
projects in the United States not otherwise authorized by law.
HOMEOWNERS ASSISTANCE FUND
Reports.
Deadlines.
For an additional amount for ‘‘Homeowners Assistance Fund’’,
established by section 1013 of the Demonstration Cities and Metropolitan Development Act of 1966, as amended (42 U.S.C. 3374),
$555,000,000, to remain available until expended: Provided, That
the Secretary of Defense shall submit quarterly reports to the
Committees on Appropriations of both Houses of Congress on the
expenditure of funds made available under this heading in this
or any other Act.
ADMINISTRATIVE PROVISION
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SEC. 1001. (a) TEMPORARY EXPANSION OF HOMEOWNERS ASSISTANCE PROGRAM TO RESPOND TO MORTGAGE FORECLOSURE AND
CREDIT CRISIS. Section 1013 of the Demonstration Cities and Metropolitan Development Act of 1966 (42 U.S.C. 3374) is amended—
(1) in subsection (a)—
(A) by redesignating paragraphs (1), (2), and (3) as
clauses (i), (ii), and (iii), respectively, and indenting such
subparagraphs, as so redesignated, 6 ems from the left
margin;
(B) by striking ‘‘Notwithstanding any other provision
of law’’ and inserting the following:
‘‘(1) ACQUISITION OF PROPERTY AT OR NEAR MILITARY
INSTALLATIONS THAT HAVE BEEN ORDERED TO BE CLOSED.—
Notwithstanding any other provision of law’’;
(C) by striking ‘‘if he determines’’ and inserting ‘‘if—
‘‘(A) the Secretary determines—’’;
(D) in clause (iii), as redesignated by subparagraph
(A), by striking the period at the end and inserting ‘‘;
or’’; and
(E) by adding at the end the following:
‘‘(B) the Secretary determines—
‘‘(i) that the conditions in clauses (i) and (ii) of
subparagraph (A) have been met;
‘‘(ii) that the closing or realignment of the base
or installation resulted from a realignment or closure
carried out under the 2005 round of defense base closure and realignment under the Defense Base Closure
and Realignment Act of 1990 (part XXIX of Public
Law 101–510; 10 U.S.C. 2687 note);
‘‘(iii) that the property was purchased by the owner
before July 1, 2006;
‘‘(iv) that the property was sold by the owner
between July 1, 2006, and September 30, 2012, or
an earlier end date designated by the Secretary;
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 195
‘‘(v) that the property is the primary residence
of the owner; and
‘‘(vi) that the owner has not previously received
benefit payments authorized under this subsection.
‘‘(2) HOMEOWNER ASSISTANCE FOR WOUNDED MEMBERS OF
THE ARMED FORCES, DEPARTMENT OF DEFENSE AND UNITED
STATES COAST GUARD CIVILIAN EMPLOYEES, AND THEIR
SPOUSES.—Notwithstanding any other provision of law, the Secretary of Defense is authorized to acquire title to, hold, manage,
and dispose of, or, in lieu thereof, to reimburse for certain
losses upon private sale of, or foreclosure against, any property
improved with a one- or two-family dwelling which was at
the time of the relevant wound, injury, or illness, the primary
residence of—
‘‘(A) any member of the Armed Forces in medical
transition who—
‘‘(i) incurred a wound, injury, or illness in the
line of duty during a deployment in support of the
Armed Forces;
‘‘(ii) is disabled to a degree of 30 percent or more
as a result of such wound, injury, or illness, as determined by the Secretary of Defense; and
‘‘(iii) is reassigned in furtherance of medical treatment or rehabilitation, or due to medical retirement
in connection with such disability;
‘‘(B) any civilian employee of the Department of
Defense or the United States Coast Guard who—
‘‘(i) was wounded, injured, or became ill in the
performance of his or her duties during a forward
deployment occurring on or after September 11, 2001,
in support of the Armed Forces; and
‘‘(ii) is reassigned in furtherance of medical treatment, rehabilitation, or due to medical retirement
resulting from the sustained disability; or
‘‘(C) the spouse of a member of the Armed Forces
or a civilian employee of the Department of Defense or
the United States Coast Guard if—
‘‘(i) the member or employee was killed in the
line of duty or in the performance of his or her duties
during a deployment on or after September 11, 2001,
in support of the Armed Forces or died from a wound,
injury, or illness incurred in the line of duty during
such a deployment; and
‘‘(ii) the spouse relocates from such residence
within 2 years after the death of such member or
employee.
‘‘(3) TEMPORARY HOMEOWNER ASSISTANCE FOR MEMBERS OF
THE ARMED FORCES PERMANENTLY REASSIGNED DURING SPECIFIED MORTGAGE CRISIS.—Notwithstanding any other provision
of law, the Secretary of Defense is authorized to acquire title
to, hold, manage, and dispose of, or, in lieu thereof, to reimburse
for certain losses upon private sale of, or foreclosure against,
any property improved with a one- or two-family dwelling situated at or near a military base or installation, if the Secretary
determines—
‘‘(A) that the owner is a member of the Armed Forces
serving on permanent assignment;
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123 STAT. 196
PUBLIC LAW 111–5—FEB. 17, 2009
‘‘(B) that the owner is permanently reassigned by order
of the United States Government to a duty station or
home port outside a 50-mile radius of the base or installation;
‘‘(C) that the reassignment was ordered between February 1, 2006, and September 30, 2012, or an earlier end
date designated by the Secretary;
‘‘(D) that the property was purchased by the owner
before July 1, 2006;
‘‘(E) that the property was sold by the owner between
July 1, 2006, and September 30, 2012, or an earlier end
date designated by the Secretary;
‘‘(F) that the property is the primary residence of the
owner; and
‘‘(G) that the owner has not previously received benefit
payments authorized under this subsection.’’;
(2) in subsection (b), by striking ‘‘this section’’ each place
it appears and inserting ‘‘subsection (a)(1)’’;
(3) in subsection (c)—
(A) by striking ‘‘Such persons’’ and inserting the following:
‘‘(1) HOMEOWNER ASSISTANCE RELATED TO CLOSED MILITARY
INSTALLATIONS.—
‘‘(A) IN GENERAL.—Such persons’’;
(B) by striking ‘‘set forth above shall elect either (1)
to receive’’ and inserting the following: ‘‘set forth in subsection (a)(1) shall elect either—
‘‘(i) to receive’’;
(C) by striking ‘‘difference between (A) 95 per centum’’
and all that follows through ‘‘(B) the fair market value’’
and inserting the following: ‘‘difference between—
‘‘(I) 95 per centum of the fair market value
of their property (as such value is determined by
the Secretary of Defense) prior to public announcement of intention to close all or part of the military
base or installation; and
‘‘(II) the fair market value’’;
(D) by striking ‘‘time of the sale, or (2) to receive’’
and inserting the following: ‘‘time of the sale; or
‘‘(ii) to receive’’;
(E) by striking ‘‘outstanding mortgages. The Secretary
may also pay a person who elects to receive a cash payment
under clause (1) of the preceding sentence an amount’’
and inserting ‘‘outstanding mortgages.
‘‘(B) REIMBURSEMENT OF EXPENSES.—The Secretary
may also pay a person who elects to receive a cash payment
under subparagraph (A) an amount’’; and
(F) by striking ‘‘best interest of the Federal Government. Cash payment’’ and inserting the following: ‘‘best
interest of the United States.
‘‘(2) HOMEOWNER ASSISTANCE FOR WOUNDED INDIVIDUALS
AND THEIR SPOUSES.—
‘‘(A) IN GENERAL.—Persons eligible under the criteria
set forth in subsection (a)(2) may elect either—
‘‘(i) to receive a cash payment as compensation
for losses which may be or have been sustained in
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 197
a private sale, in an amount not to exceed the difference between—
‘‘(I) 95 per centum of prior fair market value
of their property (as such value is determined by
the Secretary of Defense); and
‘‘(II) the fair market value of such property
(as such value is determined by the Secretary of
Defense) at the time of sale; or
‘‘(ii) to receive, as purchase price for their property
an amount not to exceed 90 per centum of prior fair
market value as such value is determined by the Secretary of Defense, or the amount of the outstanding
mortgages.
‘‘(B) DETERMINATION OF BENEFITS.—The Secretary may
also pay a person who elects to receive a cash payment
under subparagraph (A) an amount that the Secretary
determines appropriate to reimburse the person for the
costs incurred by the person in the sale of the property
if the Secretary determines that such payment will benefit
the person and is in the best interest of the United States.
‘‘(3)
HOMEOWNER
ASSISTANCE
FOR
PERMANENTLY
REASSIGNED INDIVIDUALS.—
‘‘(A) IN GENERAL.—Persons eligible under the criteria
set forth in subsection (a)(3) may elect either—
‘‘(i) to receive a cash payment as compensation
for losses which may be or have been sustained in
a private sale, in an amount not to exceed the difference between—
‘‘(I) 95 per centum of prior fair market value
of their property (as such value is determined by
the Secretary of Defense); and
‘‘(II) the fair market value of such property
(as such value is determined by the Secretary of
Defense) at the time of sale; or
‘‘(ii) to receive, as purchase price for their property
an amount not to exceed 90 per centum of prior fair
market value as such value is determined by the Secretary of Defense, or the amount of the outstanding
mortgages.
‘‘(B) DETERMINATION OF BENEFITS.—The Secretary may
also pay a person who elects to receive a cash payment
under subparagraph (A) an amount that the Secretary
determines appropriate to reimburse the person for the
costs incurred by the person in the sale of the property
if the Secretary determines that such payment will benefit
the person and is in the best interest of the United States.
‘‘(4) COMPENSATION AND LIMITATIONS RELATED TO FORECLOSURES AND ENCUMBRANCES.—Cash payment’’;
(4) by striking subsection (g);
(5) in subsection (l), by striking ‘‘(a)(2)’’ and inserting
‘‘(a)(1)(A)(ii)’’;
(6) in subsection (m), by striking ‘‘this section’’ and inserting
‘‘subsection (a)(1)’’;
(7) in subsection (n)—
(A) in paragraph (1), by striking ‘‘this section’’ and
inserting ‘‘subsection (a)(1)’’; and
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123 STAT. 198
PUBLIC LAW 111–5—FEB. 17, 2009
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(B) in paragraph (2), by striking ‘‘this section’’ and
inserting ‘‘subsection (a)(1)’’;
(8) in subsection (o)—
(A) in paragraph (1), by striking ‘‘this section’’ and
inserting ‘‘subsection (a)(1)’’;
(B) in paragraph (2), by striking ‘‘this section’’ and
inserting ‘‘subsection (a)(1)’’; and
(C) by striking paragraph (4); and
(9) by adding at the end the following new subsection:
‘‘(p) DEFINITIONS.—In this section:
‘‘(1) the term ‘Armed Forces’ has the meaning given the
term ‘armed forces’ in section 101(a) of title 10, United States
Code;
‘‘(2) the term ‘civilian employee’ has the meaning given
the term ‘employee’ in section 2105(a) of title 5, United States
Code;
‘‘(3) the term ‘medical transition’, in the case of a member
of the Armed Forces, means a member who—
‘‘(A) is in Medical Holdover status;
‘‘(B) is in Active Duty Medical Extension status;
‘‘(C) is in Medical Hold status;
‘‘(D) is in a status pending an evaluation by a medical
evaluation board;
‘‘(E) has a complex medical need requiring six or more
months of medical treatment; or
‘‘(F) is assigned or attached to an Army Warrior Transition Unit, an Air Force Patient Squadron, a Navy Patient
Multidisciplinary Care Team, or a Marine Patient Affairs
Team/Wounded Warrior Regiment; and
‘‘(4) the term ‘nonappropriated fund instrumentality
employee’ means a civilian employee who—
‘‘(A) is a citizen of the United States; and
‘‘(B) is paid from nonappropriated funds of Army and
Air Force Exchange Service, Navy Resale and Services
Support Office, Marine Corps exchanges, or any other
instrumentality of the United States under the jurisdiction
of the Armed Forces which is conducted for the comfort,
pleasure, contentment, or physical or mental improvement
of members of the Armed Forces.’’.
(b) CLERICAL AMENDMENT.—Such section is further amended
in the section heading by inserting ‘‘and certain property owned
by members of the Armed Forces, Department of Defense and
United States Coast Guard civilian employees, and surviving
spouses’’ after ‘‘ordered to be closed’’.
(c) AUTHORITY TO USE APPROPRIATED FUNDS.—Notwithstanding
subsection (i) of such section, amounts appropriated or otherwise
made available by this title under the heading ‘‘Homeowners Assistance Fund’’ may be used for the Homeowners Assistance Fund
established under such section.
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 199
DEPARTMENT OF VETERANS AFFAIRS
VETERANS HEALTH ADMINISTRATION
MEDICAL FACILITIES
For an additional amount for ‘‘Medical Facilities’’ for non-recurring maintenance, including energy projects, $1,000,000,000, to
remain available until September 30, 2010: Provided, That not
later than 30 days after the date of enactment of this Act, the
Secretary of Veterans Affairs shall submit to the Committees on
Appropriations of both Houses of Congress an expenditure plan
for funds provided under this heading.
Deadline.
Expenditure
plan.
NATIONAL CEMETERY ADMINISTRATION
For an additional amount for ‘‘National Cemetery Administration’’ for monument and memorial repairs, including energy projects,
$50,000,000, to remain available until September 30, 2010: Provided, That not later than 30 days after the date of enactment
of this Act, the Secretary of Veterans Affairs shall submit to the
Committees on Appropriations of both Houses of Congress an
expenditure plan for funds provided under this heading.
Deadline.
Expenditure
plan.
DEPARTMENTAL ADMINISTRATION
GENERAL OPERATING EXPENSES
For an additional amount for ‘‘General Operating Expenses’’,
$150,000,000, to remain available until September 30, 2010, for
additional expenses related to hiring and training temporary surge
claims processors.
INFORMATION TECHNOLOGY SYSTEMS
For an additional amount for ‘‘Information Technology Systems’’, $50,000,000, to remain available until September 30, 2010,
for the Veterans Benefits Administration: Provided, That not later
than 30 days after the enactment of this Act, the Secretary of
Veterans Affairs shall submit to the Committees on Appropriations
of both Houses of Congress an expenditure plan for funds provided
under this heading.
Deadline.
Expenditure
plan.
OFFICE OF INSPECTOR GENERAL
For an additional amount for ‘‘Office of Inspector General’’,
$1,000,000, to remain available until September 30, 2011, for oversight and audit of programs, grants and projects funded under
this title.
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GRANTS FOR CONSTRUCTION OF STATE EXTENDED CARE FACILITIES
For an additional amount for ‘‘Grants for Construction of State
Extended Care Facilities’’, $150,000,000, to remain available until
September 30, 2010, for grants to assist States to acquire or construct State nursing home and domiciliary facilities and to remodel,
modify, or alter existing hospital, nursing home, and domiciliary
facilities in State homes, for furnishing care to veterans as authorized by sections 8131 through 8137 of title 38, United States Code.
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123 STAT. 200
PUBLIC LAW 111–5—FEB. 17, 2009
ADMINISTRATIVE PROVISION
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38 USC 107 note.
SEC. 1002. PAYMENTS TO ELIGIBLE PERSONS WHO SERVED IN
THE UNITED STATES ARMED FORCES IN THE FAR EAST DURING
WORLD WAR II. (a) FINDINGS.—Congress makes the following
findings:
(1) The Philippine islands became a United States possession in 1898 when they were ceded from Spain following the
Spanish-American War.
(2) During World War II, Filipinos served in a variety
of units, some of which came under the direct control of the
United States Armed Forces.
(3) The regular Philippine Scouts, the new Philippine
Scouts, the Guerrilla Services, and more than 100,000 members
of the Philippine Commonwealth Army were called into the
service of the United States Armed Forces of the Far East
on July 26, 1941, by an executive order of President Franklin
D. Roosevelt.
(4) Even after hostilities had ceased, wartime service of
the new Philippine Scouts continued as a matter of law until
the end of 1946, and the force gradually disbanded and was
disestablished in 1950.
(5) Filipino veterans who were granted benefits prior to
the enactment of the so-called Rescissions Acts of 1946 (Public
Laws 79–301 and 79–391) currently receive full benefits under
laws administered by the Secretary of Veterans Affairs, but
under section 107 of title 38, United States Code, the service
of certain other Filipino veterans is deemed not to be active
service for purposes of such laws.
(6) These other Filipino veterans only receive certain benefits under title 38, United States Code, and, depending on
where they legally reside, are paid such benefit amounts at
reduced rates.
(7) The benefits such veterans receive include service-connected compensation benefits paid under chapter 11 of title
38, United States Code, dependency indemnity compensation
survivor benefits paid under chapter 13 of title 38, United
States Code, and burial benefits under chapters 23 and 24
of title 38, United States Code, and such benefits are paid
to beneficiaries at the rate of $0.50 per dollar authorized,
unless they lawfully reside in the United States.
(8) Dependents’ educational assistance under chapter 35
of title 38, United States Code, is also payable for the dependents of such veterans at the rate of $0.50 per dollar authorized,
regardless of the veterans’ residency.
(b) COMPENSATION FUND.—
(1) IN GENERAL.—There is in the general fund of the
Treasury a fund to be known as the ‘‘Filipino Veterans Equity
Compensation Fund’’ (in this section referred to as the ‘‘compensation fund’’).
(2) AVAILABILITY OF FUNDS.—Subject to the availability
of appropriations for such purpose, amounts in the fund shall
be available to the Secretary of Veterans Affairs without fiscal
year limitation to make payments to eligible persons in accordance with this section.
(c) PAYMENTS.—
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 201
(1) IN GENERAL.—The Secretary may make a payment
from the compensation fund to an eligible person who, during
the one-year period beginning on the date of the enactment
of this Act, submits to the Secretary a claim for benefits under
this section. The application for the claim shall contain such
information and evidence as the Secretary may require.
(2) PAYMENT TO SURVIVING SPOUSE.—If an eligible person
who has filed a claim for benefits under this section dies before
payment is made under this section, the payment under this
section shall be made instead to the surviving spouse, if any,
of the eligible person.
(d) ELIGIBLE PERSONS.—An eligible person is any person who—
(1) served—
(A) before July 1, 1946, in the organized military forces
of the Government of the Commonwealth of the Philippines,
while such forces were in the service of the Armed Forces
of the United States pursuant to the military order of
the President dated July 26, 1941, including among such
military forces organized guerrilla forces under commanders appointed, designated, or subsequently recognized
by the Commander in Chief, Southwest Pacific Area, or
other competent authority in the Army of the United
States; or
(B) in the Philippine Scouts under section 14 of the
Armed Forces Voluntary Recruitment Act of 1945 (59 Stat.
538); and
(2) was discharged or released from service described in
paragraph (1) under conditions other than dishonorable.
(e) PAYMENT AMOUNTS.—Each payment under this section shall
be—
(1) in the case of an eligible person who is not a citizen
of the United States, in the amount of $9,000; and
(2) in the case of an eligible person who is a citizen of
the United States, in the amount of $15,000.
(f) LIMITATION.—The Secretary may not make more than one
payment under this section for each eligible person described in
subsection (d).
(g) CLARIFICATION OF TREATMENT OF PAYMENTS UNDER CERTAIN LAWS.—Amounts paid to a person under this section—
(1) shall be treated for purposes of the internal revenue
laws of the United States as damages for human suffering;
and
(2) shall not be included in income or resources for purposes
of determining—
(A) eligibility of an individual to receive benefits
described in section 3803(c)(2)(C) of title 31, United States
Code, or the amount of such benefits;
(B) eligibility of an individual to receive benefits under
title VIII of the Social Security Act, or the amount of
such benefits; or
(C) eligibility of an individual for, or the amount of
benefits under, any other Federal or federally assisted program.
(h) RELEASE.—
(1) IN GENERAL.—Except as provided in paragraph (2),
the acceptance by an eligible person or surviving spouse, as
applicable, of a payment under this section shall be final,
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123 STAT. 202
PUBLIC LAW 111–5—FEB. 17, 2009
and shall constitute a complete release of any claim against
the United States by reason of any service described in subsection (d).
(2) PAYMENT OF PRIOR ELIGIBILITY STATUS.—Nothing in
this section shall prohibit a person from receiving any benefit
(including health care, survivor, or burial benefits) which the
person would have been eligible to receive based on laws in
effect as of the day before the date of the enactment of this
Act.
(i) RECOGNITION OF SERVICE.—The service of a person as
described in subsection (d) is hereby recognized as active military
service in the Armed Forces for purposes of, and to the extent
provided in, this section.
(j) ADMINISTRATION.—
(1) The Secretary shall promptly issue application forms
and instructions to ensure the prompt and efficient administration of the provisions of this section.
(2) The Secretary shall administer the provisions of this
section in a manner consistent with applicable provisions of
title 38, United States Code, and other provisions of law, and
shall apply the definitions in section 101 of such title in the
administration of such provisions, except to the extent otherwise provided in this section.
(k) REPORTS.—The Secretary shall include, in documents submitted to Congress by the Secretary in support of the President’s
budget for each fiscal year, detailed information on the operation
of the compensation fund, including the number of applicants, the
number of eligible persons receiving benefits, the amounts paid
out of the compensation fund, and the administration of the compensation fund for the most recent fiscal year for which such data
is available.
(l) AUTHORIZATION OF APPROPRIATION.—There is authorized to
be appropriated to the compensation fund $198,000,000, to remain
available until expended, to make payments under this section.
Applications.
Instructions.
TITLE XI—STATE, FOREIGN OPERATIONS, AND RELATED
PROGRAMS
DEPARTMENT OF STATE
ADMINISTRATION
OF
FOREIGN AFFAIRS
DIPLOMATIC AND CONSULAR PROGRAMS
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Spending plan.
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For an additional amount for ‘‘Diplomatic and Consular Programs’’ for urgent domestic facilities requirements for passport and
training functions, $90,000,000: Provided, That the Secretary of
State shall submit to the Committees on Appropriations within
90 days of enactment of this Act a detailed spending plan for
funds appropriated under this heading: Provided further, That with
respect to the funds made available for passport agencies, such
plan shall be developed in consultation with the Department of
Homeland Security and the General Services Administration and
shall coordinate and co-locate, to the extent feasible, passport agencies with other Federal facilities.
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 203
CAPITAL INVESTMENT FUND
(INCLUDING TRANSFER OF FUNDS)
For an additional amount for ‘‘Capital Investment Fund’’,
$290,000,000, for information technology security and upgrades to
support mission-critical operations, of which up to $38,000,000 shall
be transferred to, and merged with, funds made available under
the heading ‘‘Capital Investment Fund’’ of the United States Agency
for International Development: Provided, That the Secretary of
State and the Administrator of the United States Agency for International Development shall coordinate information technology systems, where appropriate, to increase efficiencies and eliminate
redundancies, to include co-location of backup information management facilities, and shall submit to the Committees on Appropriations within 90 days of enactment of this Act a detailed spending
plan for funds appropriated under this heading.
Deadline.
Spending plan.
OFFICE OF INSPECTOR GENERAL
For an additional amount for ‘‘Office of Inspector General’’
for oversight requirements, $2,000,000.
INTERNATIONAL COMMISSIONS
INTERNATIONAL BOUNDARY AND WATER COMMISSION, UNITED STATES
AND MEXICO
CONSTRUCTION
(INCLUDING TRANSFER OF FUNDS)
For an additional amount for ‘‘Construction’’ for the water
quantity program to meet immediate repair and rehabilitation
requirements, $220,000,000: Provided, That up to $2,000,000 may
be transferred to, and merged with, funds available under the
heading ‘‘International Boundary and Water Commission, United
States and Mexico—Salaries and Expenses’’: Provided further, That
the Secretary of State shall submit to the Committees on Appropriations within 90 days of enactment of this Act a detailed spending
plan for funds appropriated under this heading.
Deadline.
Spending plan.
TITLE XII—TRANSPORTATION AND HOUSING AND URBAN
DEVELOPMENT, AND RELATED AGENCIES
DEPARTMENT OF TRANSPORTATION
OFFICE
OF THE
SECRETARY
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SUPPLEMENTAL DISCRETIONARY GRANTS FOR A NATIONAL SURFACE
TRANSPORTATION SYSTEM
For an additional amount for capital investments in surface
transportation infrastructure, $1,500,000,000, to remain available
through September 30, 2011: Provided, That the Secretary of
Transportation shall distribute funds provided under this heading
as discretionary grants to be awarded to State and local governments or transit agencies on a competitive basis for projects that
will have a significant impact on the Nation, a metropolitan area,
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Waiver authority.
Publication.
Criteria.
Deadline.
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Applications.
Deadlines.
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PUBLIC LAW 111–5—FEB. 17, 2009
or a region: Provided further, That projects eligible for funding
provided under this heading shall include, but not be limited to,
highway or bridge projects eligible under title 23, United States
Code, including interstate rehabilitation, improvements to the rural
collector road system, the reconstruction of overpasses and interchanges, bridge replacements, seismic retrofit projects for bridges,
and road realignments; public transportation projects eligible under
chapter 53 of title 49, United States Code, including investments
in projects participating in the New Starts or Small Starts programs
that will expedite the completion of those projects and their entry
into revenue service; passenger and freight rail transportation
projects; and port infrastructure investments, including projects
that connect ports to other modes of transportation and improve
the efficiency of freight movement: Provided further, That of the
amount made available under this paragraph, the Secretary may
use an amount not to exceed $200,000,000 for the purpose of paying
the subsidy and administrative costs of projects eligible for federal
credit assistance under chapter 6 of title 23, United States Code,
if the Secretary finds that such use of the funds would advance
the purposes of this paragraph: Provided further, That in distributing funds provided under this heading, the Secretary shall take
such measures so as to ensure an equitable geographic distribution
of funds and an appropriate balance in addressing the needs of
urban and rural communities: Provided further, That a grant funded
under this heading shall be not less than $20,000,000 and not
greater than $300,000,000: Provided further, That the Secretary
may waive the minimum grant size cited in the preceding proviso
for the purpose of funding significant projects in smaller cities,
regions, or States: Provided further, That not more than 20 percent
of the funds made available under this paragraph may be awarded
to projects in a single State: Provided further, That the Federal
share of the costs for which an expenditure is made under this
heading may be up to 100 percent: Provided further, That the
Secretary shall give priority to projects that require a contribution
of Federal funds in order to complete an overall financing package,
and to projects that are expected to be completed within 3 years
of enactment of this Act: Provided further, That the Secretary
shall publish criteria on which to base the competition for any
grants awarded under this heading not later than 90 days after
enactment of this Act: Provided further, That the Secretary shall
require applications for funding provided under this heading to
be submitted not later than 180 days after the publication of such
criteria, and announce all projects selected to be funded from such
funds not later than 1 year after enactment of this Act: Provided
further, That projects conducted using funds provided under this
heading must comply with the requirements of subchapter IV of
chapter 31 of title 40, United States Code: Provided further, That
the Secretary may retain up to $1,500,000 of the funds provided
under this heading, and may transfer portions of those funds to
the Administrators of the Federal Highway Administration, the
Federal Transit Administration, the Federal Railroad Administration and the Maritime Administration, to fund the award and
oversight of grants made under this heading.
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 205
FEDERAL AVIATION ADMINISTRATION
SUPPLEMENTAL FUNDING FOR FACILITIES AND EQUIPMENT
For an additional amount for necessary investments in Federal
Aviation Administration infrastructure, $200,000,000, to remain
available through September 30, 2010: Provided, That funding provided under this heading shall be used to make improvements
to power systems, air route traffic control centers, air traffic control
towers, terminal radar approach control facilities, and navigation
and landing equipment: Provided further, That priority be given
to such projects or activities that will be completed within 2 years
of enactment of this Act: Provided further, That amounts made
available under this heading may be provided through grants in
addition to the other instruments authorized under section 106(l)(6)
of title 49, United States Code: Provided further, That the Federal
share of the costs for which an expenditure is made under this
heading shall be 100 percent: Provided further, That amounts provided under this heading may be used for expenses the agency
incurs in administering this program: Provided further, That not
more than 60 days after enactment of this Act, the Administrator
shall establish a process for applying, reviewing and awarding
grants and cooperative and other transaction agreements, including
the form and content of an application, and requirements for the
maintenance of records that are necessary to facilitate an effective
audit of the use of the funding provided: Provided further, That
section 50101 of title 49, United States Code, shall apply to funds
provided under this heading.
Deadline.
Procedures.
Applicability.
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GRANTS-IN-AID FOR AIRPORTS
For an additional amount for ‘‘Grants-In-Aid for Airports’’, to
enable the Secretary of Transportation to make grants for discretionary projects as authorized by subchapter 1 of chapter 471 and
subchapter 1 of chapter 475 of title 49, United States Code, and
for the procurement, installation and commissioning of runway
incursion prevention devices and systems at airports of such title,
$1,100,000,000, to remain available through September 30, 2010:
Provided, That such funds shall not be subject to apportionment
formulas, special apportionment categories, or minimum percentages under chapter 471: Provided further, That the Secretary shall
distribute funds provided under this heading as discretionary grants
to airports, with priority given to those projects that demonstrate
to his satisfaction their ability to be completed within 2 years
of enactment of this Act, and serve to supplement and not supplant
planned expenditures from airport-generated revenues or from other
State and local sources on such activities: Provided further, That
the Secretary shall award grants totaling not less than 50 percent
of the funds made available under this heading within 120 days
of enactment of this Act, and award grants for the remaining
amounts not later than 1 year after enactment of this Act: Provided
further, That the Federal share payable of the costs for which
a grant is made under this heading shall be 100 percent: Provided
further, That the amount made available under this heading shall
not be subject to any limitation on obligations for the Grantsin-Aid for Airports program set forth in any Act: Provided further,
That the Administrator of the Federal Aviation Administration
may retain up to 0.2 percent of the funds provided under this
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PUBLIC LAW 111–5—FEB. 17, 2009
heading to fund the award and oversight by the Administrator
of grants made under this heading.
FEDERAL HIGHWAY ADMINISTRATION
HIGHWAY INFRASTRUCTURE INVESTMENT
Deadline.
Effective date.
Effective date.
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Submission.
VerDate Nov 24 2008
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For an additional amount for restoration, repair, construction
and other activities eligible under paragraph (b) of section 133
of title 23, United States Code, and for passenger and freight
rail transportation and port infrastructure projects eligible for
assistance under subsection 601(a)(8) of such title, $27,500,000,000,
to remain available through September 30, 2010: Provided, That,
after making the set-asides required under this heading, 50 percent
of the funds made available under this heading shall be apportioned
to States using the formula set forth in section 104(b)(3) of title
23, United States Code, and the remaining funds shall be apportioned to States in the same ratio as the obligation limitation
for fiscal year 2008 was distributed among the States in accordance
with the formula specified in section 120(a)(6) of division K of
Public Law 110–161: Provided further, That funds made available
under this heading shall be apportioned not later than 21 days
after the date of enactment of this Act: Provided further, That
in selecting projects to be carried out with funds apportioned under
this heading, priority shall be given to projects that are projected
for completion within a 3-year time frame, and are located in
economically distressed areas as defined by section 301 of the
Public Works and Economic Development Act of 1965, as amended
(42 U.S.C. 3161): Provided further, That 120 days following the
date of such apportionment, the Secretary of Transportation shall
withdraw from each State an amount equal to 50 percent of the
funds awarded to that State (excluding funds suballocated within
the State) less the amount of funding obligated (excluding funds
suballocated within the State), and the Secretary shall redistribute
such amounts to other States that have had no funds withdrawn
under this proviso in the manner described in section 120(c) of
division K of Public Law 110–161: Provided further, That 1 year
following the date of such apportionment, the Secretary shall withdraw from each recipient of funds apportioned under this heading
any unobligated funds, and the Secretary shall redistribute such
amounts to States that have had no funds withdrawn under this
proviso (excluding funds suballocated within the State) in the
manner described in section 120(c) of division K of Public Law
110–161: Provided further, That at the request of a State, the
Secretary of Transportation may provide an extension of such 1year period only to the extent that he feels satisfied that the
State has encountered extreme conditions that create an unworkable bidding environment or other extenuating circumstances: Provided further, That before granting such an extension, the Secretary
shall send a letter to the House and Senate Committees on Appropriations that provides a thorough justification for the extension:
Provided further, That 3 percent of the funds apportioned to a
State under this heading shall be set aside for the purposes
described in subsection 133(d)(2) of title 23, United States Code
(without regard to the comparison to fiscal year 2005): Provided
further, That 30 percent of the funds apportioned to a State under
this heading shall be suballocated within the State in the manner
and for the purposes described in the first sentence of subsection
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 207
133(d)(3)(A), in subsection 133(d)(3)(B), and in subsection
133(d)(3)(D): Provided further, That such suballocation shall be
conducted in every State: Provided further, That funds suballocated
within a State to urbanized areas and other areas shall not be
subject to the redistribution of amounts required 120 days following
the date of apportionment of funds provided under this heading:
Provided further, That of the funds provided under this heading,
$105,000,000 shall be for the Puerto Rico highway program authorized under section 165 of title 23, United States Code, and
$45,000,000 shall be for the territorial highway program authorized
under section 215 of title 23, United States Code: Provided further,
That of the funds provided under this heading, $60,000,000 shall
be for capital expenditures eligible under section 147 of title 23,
United States Code (without regard to subsection(d)): Provided further, That the Secretary of Transportation shall distribute such
$60,000,000 as competitive discretionary grants to States, with
priority given to those projects that demonstrate to his satisfaction
their ability to be completed within 2 years of enactment of this
Act: Provided further, That of the funds provided under this
heading, $550,000,000 shall be for investments in transportation
at Indian reservations and Federal lands: Provided further, That
of the funds identified in the preceding proviso, $310,000,000 shall
be for the Indian Reservation Roads program, $170,000,000 shall
be for the Park Roads and Parkways program, $60,000,000 shall
be for the Forest Highway Program, and $10,000,000 shall be
for the Refuge Roads program: Provided further, That for investments at Indian reservations and Federal lands, priority shall be
given to capital investments, and to projects and activities that
can be completed within 2 years of enactment of this Act: Provided
further, That 1 year following the enactment of this Act, to ensure
the prompt use of the $550,000,000 provided for investments at
Indian reservations and Federal lands, the Secretary shall have
the authority to redistribute unobligated funds within the respective
program for which the funds were appropriated: Provided further,
That up to 4 percent of the funding provided for Indian Reservation
Roads may be used by the Secretary of the Interior for program
management and oversight and project-related administrative
expenses: Provided further, That section 134(f)(3)(C)(ii)(II) of title
23, United States Code, shall not apply to funds provided under
this heading: Provided further, That of the funds made available
under this heading, $20,000,000 shall be for highway surface
transportation and technology training under section 140(b) of title
23, United States Code, and $20,000,000 shall be for disadvantaged
business enterprises bonding assistance under section 332(e) of
title 49, United States Code: Provided further, That funds made
available under this heading shall be administered as if apportioned
under chapter 1 of title 23, United States Code, except for funds
made available for investments in transportation at Indian reservations and Federal lands, and for the territorial highway program,
which shall be administered in accordance with chapter 2 of title
23, United States Code, and except for funds made available for
disadvantaged business enterprises bonding assistance, which shall
be administered in accordance with chapter 3 of title 49, United
States Code: Provided further, That the Federal share payable
on account of any project or activity carried out with funds made
available under this heading shall be, at the option of the recipient,
up to 100 percent of the total cost thereof: Provided further, That
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Grants.
Effective date.
Redistribution
authority.
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123 STAT. 208
PUBLIC LAW 111–5—FEB. 17, 2009
funds made available by this Act shall not be obligated for the
purposes authorized under section 115(b) of title 23, United States
Code: Provided further, That funding provided under this heading
shall be in addition to any and all funds provided for fiscal years
2009 and 2010 in any other Act for ‘‘Federal-aid Highways’’ and
shall not affect the distribution of funds provided for ‘‘Federalaid Highways’’ in any other Act: Provided further, That the amount
made available under this heading shall not be subject to any
limitation on obligations for Federal-aid highways or highway safety
construction programs set forth in any Act: Provided further, That
section 1101(b) of Public Law 109–59 shall apply to funds apportioned under this heading: Provided further, That the Administrator
of the Federal Highway Administration may retain up to
$40,000,000 of the funds provided under this heading to fund the
oversight by the Administrator of projects and activities carried
out with funds made available to the Federal Highway Administration in this Act, and such funds shall be available through September 30, 2012.
Applicability.
FEDERAL RAILROAD ADMINISTRATION
Grants.
CAPITAL ASSISTANCE FOR HIGH SPEED RAIL CORRIDORS AND
INTERCITY PASSENGER RAIL SERVICE
Deadline.
Strategic plan.
Deadline.
Guidance.
Waiver authority.
Compliance.
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Applicability.
VerDate Nov 24 2008
14:55 Feb 26, 2009
For an additional amount for section 501 of Public Law 110–
432 and discretionary grants to States to pay for the cost of projects
described in paragraphs (2)(A) and (2)(B) of section 24401 of title
49, United States Code, subsection (b) of section 24105 of such
title, $8,000,000,000, to remain available through September 30,
2012: Provided, That the Secretary of Transportation shall give
priority to projects that support the development of intercity high
speed rail service: Provided further, That within 60 days of the
enactment of this Act, the Secretary shall submit to the House
and Senate Committees on Appropriations a strategic plan that
describes how the Secretary will use the funding provided under
this heading to improve and deploy high speed passenger rail systems: Provided further, That within 120 days of enactment of this
Act, the Secretary shall issue interim guidance to applicants covering grant terms, conditions, and procedures until final regulations
are issued: Provided further, That such interim guidance shall
provide separate instructions for the high speed rail corridor program, capital assistance for intercity passenger rail service grants,
and congestion grants: Provided further, That the Secretary shall
waive the requirement that a project conducted using funds provided under this heading be in a State rail plan developed under
chapter 227 of title 49, United States Code: Provided further, That
the Federal share payable of the costs for which a grant is made
under this heading shall be, at the option of the recipient, up
to 100 percent: Provided further, That projects conducted using
funds provided under this heading must comply with the requirements of subchapter IV of chapter 31 of title 40, United States
Code: Provided further, That section 24405 of title 49, United States
Code, shall apply to funds provided under this heading: Provided
further, That the Administrator of the Federal Railroad Administration may retain up to one-quarter of 1 percent of the funds provided
under this heading to fund the award and oversight by the Administrator of grants made under this heading, and funds retained for
said purposes shall remain available through September 30, 2014.
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 209
CAPITAL GRANTS TO THE NATIONAL RAILROAD PASSENGER
CORPORATION
For an additional amount for the National Railroad Passenger
Corporation (Amtrak) to enable the Secretary of Transportation
to make capital grants to Amtrak as authorized by section 101(c)
of the Passenger Rail Investment and Improvement Act of 2008
(Public Law 110–432), $1,300,000,000, to remain available through
September 30, 2010, of which $450,000,000 shall be used for capital
security grants: Provided, That priority for the use of non-security
funds shall be given to projects for the repair, rehabilitation, or
upgrade of railroad assets or infrastructure, and for capital projects
that expand passenger rail capacity including the rehabilitation
of rolling stock: Provided further, That none of the funds under
this heading shall be used to subsidize the operating losses of
Amtrak: Provided further, That funds provided under this heading
shall be awarded not later than 30 days after the date of enactment
of this Act: Provided further, That the Secretary shall take measures
to ensure that projects funded under this heading shall be completed
within 2 years of enactment of this Act, and shall serve to supplement and not supplant planned expenditures for such activities
from other Federal, State, local and corporate sources: Provided
further, That the Secretary shall certify to the House and Senate
Committees on Appropriations in writing compliance with the preceding proviso: Provided further, That not more than 60 percent
of the funds provided for non-security activities under this heading
may be used for capital projects along the Northeast Corridor:
Provided further, That of the funding provided under this heading,
$5,000,000 shall be made available for the Amtrak Office of
Inspector General and made available through September 30, 2013.
Deadline.
Deadline.
Certification.
FEDERAL TRANSIT ADMINISTRATION
Grants.
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TRANSIT CAPITAL ASSISTANCE
For an additional amount for transit capital assistance grants
authorized under section 5302(a)(1) of title 49, United States Code,
$6,900,000,000, to remain available through September 30, 2010:
Provided, That the Secretary of Transportation shall provide 80
percent of the funds appropriated under this heading for grants
under section 5307 of title 49, United States Code, and apportion
such funds in accordance with section 5336 of such title (other
than subsections (i)(1) and (j)): Provided further, That the Secretary
shall apportion 10 percent of the funds appropriated under this
heading in accordance with section 5340 of such title: Provided
further, That the Secretary shall provide 10 percent of the funds
appropriated under this heading for grants under section 5311
of title 49, United States Code, and apportion such funds in accordance with such section: Provided further, That funds apportioned
under this heading shall be apportioned not later than 21 days
after the date of enactment of this Act: Provided further, That
180 days following the date of such apportionment, the Secretary
shall withdraw from each urbanized area or State an amount equal
to 50 percent of the funds apportioned to such urbanized areas
or States less the amount of funding obligated, and the Secretary
shall redistribute such amounts to other urbanized areas or States
that have had no funds withdrawn under this proviso utilizing
whatever method he deems appropriate to ensure that all funds
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Deadline.
Effective date.
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123 STAT. 210
Effective date.
Submission.
Applicability.
Applicability.
PUBLIC LAW 111–5—FEB. 17, 2009
redistributed under this proviso shall be utilized promptly: Provided
further, That 1 year following the date of such apportionment,
the Secretary shall withdraw from each urbanized area or State
any unobligated funds, and the Secretary shall redistribute such
amounts to other urbanized areas or States that have had no
funds withdrawn under this proviso utilizing whatever method he
deems appropriate to ensure that all funds redistributed under
this proviso shall be utilized promptly: Provided further, That at
the request of an urbanized area or State, the Secretary of Transportation may provide an extension of such 1-year period if he feels
satisfied that the urbanized area or State has encountered an
unworkable bidding environment or other extenuating circumstances: Provided further, That before granting such an extension, the Secretary shall send a letter to the House and Senate
Committees on Appropriations that provides a thorough justification
for the extension: Provided further, That of the funds provided
for section 5311 of title 49, United States Code, 2.5 percent shall
be made available for section 5311(c)(1): Provided further, That
of the funding provided under this heading, $100,000,000 shall
be distributed as discretionary grants to public transit agencies
for capital investments that will assist in reducing the energy
consumption or greenhouse gas emissions of their public transportation systems: Provided further, That for such grants on energyrelated investments, priority shall be given to projects based on
the total energy savings that are projected to result from the investment, and projected energy savings as a percentage of the total
energy usage of the public transit agency: Provided further, That
applicable chapter 53 requirements shall apply to funding provided
under this heading, except that the Federal share of the costs
for which any grant is made under this heading shall be, at the
option of the recipient, up to 100 percent: Provided further, That
the amount made available under this heading shall not be subject
to any limitation on obligations for transit programs set forth in
any Act: Provided further, That section 1101(b) of Public Law 109–
59 shall apply to funds appropriated under this heading: Provided
further, That the funds appropriated under this heading shall not
be comingled with any prior year funds: Provided further, That
notwithstanding any other provision of law, three-quarters of 1
percent of the funds provided for grants under section 5307 and
section 5340, and one-half of 1 percent of the funds provided for
grants under section 5311, shall be available for administrative
expenses and program management oversight, and such funds shall
be available through September 30, 2012.
FIXED GUIDEWAY INFRASTRUCTURE INVESTMENT
Deadline.
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Effective date.
VerDate Nov 24 2008
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For an amount for capital expenditures authorized under section 5309(b)(2) of title 49, United States Code, $750,000,000, to
remain available through September 30, 2010: Provided, That the
Secretary of Transportation shall apportion funds under this
heading pursuant to the formula set forth in section 5337 of title
49, United States Code: Provided further, That the funds appropriated under this heading shall not be commingled with any prior
year funds: Provided further, That funds made available under
this heading shall be apportioned not later than 21 days after
the date of enactment of this Act: Provided further, That 180
days following the date of such apportionment, the Secretary shall
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 211
withdraw from each urbanized area an amount equal to 50 percent
of the funds apportioned to such urbanized area less the amount
of funding obligated, and the Secretary shall redistribute such
amounts to other urbanized areas that have had no funds withdrawn under this proviso utilizing whatever method he or she
deems appropriate to ensure that all funds redistributed under
this proviso shall be utilized promptly: Provided further, That 1
year following the date of such apportionment, the Secretary shall
withdraw from each urbanized area any unobligated funds, and
the Secretary shall redistribute such amounts to other urbanized
areas that have had no funds withdrawn under this proviso utilizing
whatever method he or she deems appropriate to ensure that all
funds redistributed under this proviso shall be utilized promptly:
Provided further, That at the request of an urbanized area, the
Secretary of Transportation may provide an extension of such 1year period if he or she feels satisfied that the urbanized area
has encountered an unworkable bidding environment or other
extenuating circumstances: Provided further, That before granting
such an extension, the Secretary shall send a letter to the House
and Senate Committees on Appropriations that provides a thorough
justification for the extension: Provided further, That applicable
chapter 53 requirements shall apply except that the Federal share
of the costs for which a grant is made under this heading shall
be, at the option of the recipient, up to 100 percent: Provided
further, That the provisions of section 1101(b) of Public Law 109–
59 shall apply to funds made available under this heading: Provided
further, That notwithstanding any other provision of law, up to
1 percent of the funds under this heading shall be available for
administrative expenses and program management oversight and
shall remain available for obligation until September 30, 2012.
Effective date.
Submission.
Applicability.
Applicability.
CAPITAL INVESTMENT GRANTS
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For an additional amount for ‘‘Capital Investment Grants’’,
as authorized under section 5338(c)(4) of title 49, United States
Code, and allocated under section 5309(m)(2)(A) of such title, to
enable the Secretary of Transportation to make discretionary grants
as authorized by section 5309(d) and (e) of such title, $750,000,000,
to remain available through September 30, 2010: Provided, That
such amount shall be allocated without regard to the limitation
under section 5309(m)(2)(A)(i): Provided further, That in selecting
projects to be funded, priority shall be given to projects that are
currently in construction or are able to obligate funds within 150
days of enactment of this Act: Provided further, That the provisions
of section 1101(b) of Public Law 109–59 shall apply to funds made
available under this heading: Provided further, That funds appropriated under this heading shall not be commingled with any prior
year funds: Provided further, That applicable chapter 53 requirements shall apply, except that notwithstanding any other provision
of law, up to 1 percent of the funds provided under this heading
shall be available for administrative expenses and program management oversight, and shall remain available through September 30,
2012.
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Applicability.
Applicability.
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PUBLIC LAW 111–5—FEB. 17, 2009
MARITIME ADMINISTRATION
SUPPLEMENTAL GRANTS FOR ASSISTANCE TO SMALL SHIPYARDS
To make grants to qualified shipyards as authorized under
section 3508 of Public Law 110–417 or section 54101 of title 46,
United States Code, $100,000,000, to remain available through
September 30, 2010: Provided, That the Secretary of Transportation
shall institute measures to ensure that funds provided under this
heading shall be obligated within 180 days of the date of their
distribution: Provided further, That the Maritime Administrator
may retain and transfer to ‘‘Maritime Administration, Operations
and Training’’ up to 2 percent of the funds provided under this
heading to fund the award and oversight by the Administrator
of grants made under this heading.
Deadline.
OFFICE
OF INSPECTOR
GENERAL
SALARIES AND EXPENSES
Audits.
Investigations.
Fraud.
For an additional amount for necessary expenses of the Office
of Inspector General to carry out the provisions of the Inspector
General Act of 1978, as amended, $20,000,000, to remain available
through September 30, 2013: Provided, That the funding made
available under this heading shall be used for conducting audits
and investigations of projects and activities carried out with funds
made available in this Act to the Department of Transportation:
Provided further, That the Inspector General shall have all necessary authority, in carrying out the duties specified in the Inspector
General Act, as amended (5 U.S.C. App. 3), to investigate allegations
of fraud, including false statements to the Government (18 U.S.C.
1001), by any person or entity that is subject to regulation by
the Department.
GENERAL PROVISION—DEPARTMENT OF TRANSPORTATION
Deadline.
Certification.
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Submission.
Time period.
VerDate Nov 24 2008
14:55 Feb 26, 2009
SEC. 1201. (a) MAINTENANCE OF EFFORT.—Not later than 30
days after the date of enactment of this Act, for each amount
that is distributed to a State or agency thereof from an appropriation in this Act for a covered program, the Governor of the State
shall certify to the Secretary of Transportation that the State will
maintain its effort with regard to State funding for the types
of projects that are funded by the appropriation. As part of this
certification, the Governor shall submit to the Secretary of
Transportation a statement identifying the amount of funds the
State planned to expend from State sources as of the date of
enactment of this Act during the period beginning on the date
of enactment of this Act through September 30, 2010, for the
types of projects that are funded by the appropriation.
(b) FAILURE TO MAINTAIN EFFORT.—
If a State is unable to maintain the level of effort certified
pursuant to subsection (a), the State will be prohibited by
the Secretary of Transportation from receiving additional
limitation pursuant to the redistribution of the limitation on
obligations for Federal-aid highway and highway safety
construction programs that occurs after August 1 for fiscal
year 2011.
(c) PERIODIC REPORTS.—
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 213
(1) IN GENERAL.—Notwithstanding any other provision of
law, each grant recipient shall submit to the covered agency
from which they received funding periodic reports on the use
of the funds appropriated in this Act for covered programs.
Such reports shall be collected and compiled by the covered
agency and transmitted to Congress. Covered agencies may
develop such reports on behalf of grant recipients to ensure
the accuracy and consistency of such reports.
(2) CONTENTS OF REPORTS.—For amounts received under
each covered program by a grant recipient under this Act,
the grant recipient shall include in the periodic reports information tracking(A) the amount of Federal funds appropriated, allocated, obligated, and outlayed under the appropriation;
(B) the number of projects that have been put out
to bid under the appropriation and the amount of Federal
funds associated with such projects;
(C) the number of projects for which contracts have
been awarded under the appropriation and the amount
of Federal funds associated with such contracts;
(D) the number of projects for which work has begun
under such contracts and the amount of Federal funds
associated with such contracts;
(E) the number of projects for which work has been
completed under such contracts and the amount of Federal
funds associated with such contracts;
(F) the number of direct, on-project jobs created or
sustained by the Federal funds provided for projects under
the appropriation and, to the extent possible, the estimated
indirect jobs created or sustained in the associated supplying industries, including the number of job-years created
and the total increase in employment since the date of
enactment of this Act; and
(G) for each covered program report information
tracking the actual aggregate expenditures by each grant
recipient from State sources for projects eligible for funding
under the program during the period beginning on the
date of enactment of this Act through September 30, 2010,
as compared to the level of such expenditures that were
planned to occur during such period as of the date of
enactment of this Act.
(3) TIMING OF REPORTS.—Each grant recipient shall submit
the first of the periodic reports required under this subsection
not later than 90 days after the date of enactment of this
Act and shall submit updated reports not later than 180 days,
1 year, 2 years, and 3 years after such date of enactment.
(d) DEFINITIONS.—In this section, the following definitions
apply:
(1) COVERED AGENCY.—The term ‘‘covered agency’’ means
the Office of the Secretary of Transportation, the Federal Aviation Administration, the Federal Highway Administration, the
Federal Railroad Administration, the Federal Transit Administration and the Maritime Administration of the Department
of Transportation.
(2) COVERED PROGRAM.—The term ‘‘covered program’’
means funds appropriated in this Act for ‘‘Supplemental Discretionary Grants for a National Surface Transportation System’’
VerDate Nov 24 2008
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123 STAT. 214
PUBLIC LAW 111–5—FEB. 17, 2009
to the Office of the Secretary of Transportation, for ‘‘Supplemental Funding for Facilities and Equipment’’ and ‘‘Grantsin-Aid for Airports’’ to the Federal Aviation Administration;
for ‘‘Highway Infrastructure Investment’’ to the Federal Highway Administration; for ‘‘Capital Assistance for High Speed
Rail Corridors and Intercity Passenger Rail Service’’ and ‘‘Capital Grants to the National Railroad Passenger Corporation’’
to the Federal Railroad Administration; for ‘‘Transit Capital
Assistance’’, ‘‘Fixed Guideway Infrastructure Investment’’, and
‘‘Capital Investment Grants’’ to the Federal Transit Administration; and ‘‘Supplemental Grants for Assistance to Small Shipyards’’ to the Maritime Administration.
(3) GRANT RECIPIENT.—The term ‘‘grant recipient’’ means
a State or other recipient of assistance provided under a covered
program in this Act. Such term does not include a Federal
department or agency.
(e) Notwithstanding any other provision of law, sections 3501–
3521 of title 44, United States Code, shall not apply to the provisions
of this section.
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
PUBLIC
AND INDIAN
HOUSING
PUBLIC HOUSING CAPITAL FUND
Deadline.
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Deadline.
Contracts.
VerDate Nov 24 2008
08:45 Feb 27, 2009
For an additional amount for the ‘‘Public Housing Capital Fund’’
to carry out capital and management activities for public housing
agencies, as authorized under section 9 of the United States Housing
Act of 1937 (42 U.S.C. 1437g) (the ‘‘Act’’), $4,000,000,000, to remain
available until September 30, 2011: Provided, That the Secretary
of Housing and Urban Development shall distribute $3,000,000,000
of this amount by the same formula used for amounts made available in fiscal year 2008, except that the Secretary may determine
not to allocate funding to public housing agencies currently designated as troubled or to public housing agencies that elect not
to accept such funding: Provided further, That the Secretary shall
obligate funds allocated by formula within 30 days of enactment
of this Act: Provided further, That the Secretary shall make available $1,000,000,000 by competition for priority investments,
including investments that leverage private sector funding or
financing for renovations and energy conservation retrofit investments: Provided further, That the Secretary shall obligate competitive funding by September 30, 2009: Provided further, That public
housing authorities shall give priority to capital projects that can
award contracts based on bids within 120 days from the date
the funds are made available to the public housing authorities:
Provided further, That public housing agencies shall give priority
consideration to the rehabilitation of vacant rental units: Provided
further, That public housing agencies shall prioritize capital projects
that are already underway or included in the 5-year capital fund
plans required by the Act (42 U.S.C. 1437c–1(a)): Provided further,
That notwithstanding any other provision of law, (1) funding provided under this heading may not be used for operating or rental
assistance activities, and (2) any restriction of funding to replacement housing uses shall be inapplicable: Provided further, That
notwithstanding any other provision of law, the Secretary shall
institute measures to ensure that funds provided under this heading
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 215
shall serve to supplement and not supplant expenditures from
other Federal, State, or local sources or funds independently generated by the grantee: Provided further, That notwithstanding section 9(j), public housing agencies shall obligate 100 percent of
the funds within 1 year of the date on which funds become available
to the agency for obligation, shall expend at least 60 percent of
funds within 2 years of the date on which funds become available
to the agency for obligation, and shall expend 100 percent of the
funds within 3 years of such date: Provided further, That if a
public housing agency fails to comply with the 1-year obligation
requirement, the Secretary shall recapture all remaining unobligated funds awarded to the public housing agency and reallocate
such funds to agencies that are in compliance with those requirements: Provided further, That if a public housing agency fails to
comply with either the 2-year or the 3-year expenditure requirement, the Secretary shall recapture the balance of the funds
awarded to the public housing agency and reallocate such funds
to agencies that are in compliance with those requirements: Provided further, That in administering funds appropriated or otherwise made available under this heading, the Secretary may waive
or specify alternative requirements for any provision of any statute
or regulation in connection with the obligation by the Secretary
or the use of these funds (except for requirements related to fair
housing, nondiscrimination, labor standards, and the environment),
upon a finding that such a waiver is necessary to expedite or
facilitate the use of such funds: Provided further, That, in addition
to waivers authorized under the previous proviso, the Secretary
may direct that requirements relating to the procurement of goods
and services arising under state and local laws and regulations
shall not apply to amounts made available under this heading:
Provided further, That of the funds made available under this
heading, up to .5 percent shall be available for staffing, training,
technical assistance, technology, monitoring, travel, enforcement,
research and evaluation activities: Provided further, That funds
set aside in the previous proviso shall remain available until September 30, 2012: Provided further, That any funds made available
under this heading used by the Secretary for personnel expenses
related to administering funding under this heading shall be transferred to ‘‘Personnel Compensation and Benefits, Office of Public
and Indian Housing’’ and shall retain the terms and conditions
of this account, including reprogramming provisions, except that
the period of availability set forth in the previous proviso shall
govern such transferred funds: Provided further, That any funds
made available under this heading used by the Secretary for
training or other administrative expenses shall be transferred to
‘‘Administration, Operations, and Management’’, for non-personnel
expenses of the Department of Housing and Urban Development:
Provided further, That any funds made available under this heading
used by the Secretary for technology shall be transferred to
‘‘Working Capital Fund’’.
Deadlines.
Waiver authority.
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NATIVE AMERICAN HOUSING BLOCK GRANTS
For an additional amount for ‘‘Native American Housing Block
Grants’’, as authorized under title I of the Native American Housing
Assistance and Self-Determination Act of 1996 (‘‘NAHASDA’’) (25
VerDate Nov 24 2008
08:20 Mar 03, 2009
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123 STAT. 216
Deadline.
Deadline.
Deadlines.
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Waiver authority.
VerDate Nov 24 2008
08:20 Mar 03, 2009
PUBLIC LAW 111–5—FEB. 17, 2009
U.S.C. 4111 et seq.), $510,000,000 to remain available until September 30, 2011: Provided, That $255,000,000 of the amount provided under this heading shall be distributed according to the
same funding formula used in fiscal year 2008: Provided further,
That the Secretary shall obligate funds allocated by formula within
30 days of enactment of this Act: Provided further, That the
amounts distributed through the formula shall be used for new
construction, acquisition, rehabilitation including energy efficiency
and conservation, and infrastructure development: Provided further,
That in selecting projects to be funded, recipients shall give priority
to projects for which contracts can be awarded within 180 days
from the date that funds are available to the recipients: Provided
further, that the Secretary may obligate $255,000,000 of the amount
provided under this heading for competitive grants to eligible entities that apply for funds authorized under NAHASDA: Provided
further, That the Secretary shall obligate competitive funding by
September 30, 2009: Provided further, That in awarding competitive
funds, the Secretary shall give priority to projects that will spur
construction and rehabilitation and will create employment
opportunities for low-income and unemployed persons: Provided
further, That recipients of funds under this heading shall obligate
100 percent of such funds within 1 year of the date funds are
made available to a recipient, expend at least 50 percent of such
funds within 2 years of the date on which funds become available
to such recipients for obligation and expend 100 percent of such
funds within 3 years of such date: Provided further, That if a
recipient fails to comply with the 2-year expenditure requirement,
the Secretary shall recapture all remaining funds awarded to the
recipient and reallocate such funds through the funding formula
to recipients that are in compliance with these requirements: Provided further, That if a recipient fails to comply with the 3-year
expenditure requirement, the Secretary shall recapture the balance
of the funds originally awarded to the recipient: Provided further,
That notwithstanding any other provision of law, the Secretary
may set aside up to 2 percent of funds made available under
this paragraph for a housing entity eligible to receive funding
under title VIII of NAHASDA (25 U.S.C. 4221 et seq.): Provided
further, That in administering funds appropriated or otherwise
made available under this heading, the Secretary may waive or
specify alternative requirements for any provision of any statute
or regulation in connection with the obligation by the Secretary
or the use of these funds (except for requirements related to fair
housing, nondiscrimination, labor standards, and the environment),
upon a finding that such a waiver is necessary to expedite or
facilitate the use of such funds: Provided further, That of the
funds made available under this heading, up to .5 percent shall
be available for staffing, training, technical assistance, technology,
monitoring, travel, enforcement, research and evaluation activities:
Provided further, That funds set aside in the previous proviso
shall remain available until September 30, 2012: Provided further,
That any funds made available under this heading used by the
Secretary for personnel expenses related to administering funding
under this heading shall be transferred to ‘‘Personnel Compensation
and Benefits, Office of Public and Indian Housing’’ and shall retain
the terms and conditions of this account, including reprogramming
provisions, except that the period of availability set forth in the
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 217
previous proviso shall govern such transferred funds: Provided further, That any funds made available under this heading used by
the Secretary for training or other administrative expenses shall
be transferred to ‘‘Administration, Operations, and Management’’,
for non-personnel expenses of the Department of Housing and
Urban Development: Provided further, That any funds made available under this heading used by the Secretary for technology shall
be transferred to ‘‘Working Capital Fund’’.
COMMUNITY PLANNING
AND
DEVELOPMENT
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COMMUNITY DEVELOPMENT FUND
For an additional amount for ‘‘Community Development Fund’’
$1,000,000,000, to remain available until September 30, 2010 to
carry out the community development block grant program under
title I of the Housing and Community Development Act of 1974
(42 U.S.C. 5301 et seq.): Provided, That the amount appropriated
in this paragraph shall be distributed pursuant to 42 U.S.C. 5306
to grantees that received funding in fiscal year 2008: Provided
further, That in administering the funds appropriated in this paragraph, the Secretary of Housing and Urban Development shall
establish requirements to expedite the use of the funds: Provided
further, That in selecting projects to be funded, recipients shall
give priority to projects that can award contracts based on bids
within 120 days from the date the funds are made available to
the recipients: Provided further, That in administering funds appropriated or otherwise made available under this heading, the Secretary may waive or specify alternative requirements for any provision of any statute or regulation in connection with the obligation
by the Secretary or the use by the recipient of these funds (except
for requirements related to fair housing, nondiscrimination, labor
standards, and the environment), upon a finding that such waiver
is necessary to expedite or facilitate the timely use of such funds
and would not be inconsistent with the overall purpose of the
statute.
For the provision of emergency assistance for the redevelopment
of abandoned and foreclosed homes, as authorized under division
B, title III of the Housing and Economic Recovery Act of 2008
(‘‘the Act’’) (Public Law 110–289) (42 U.S.C. 5301 note),
$2,000,000,000, to remain available until September 30, 2010: Provided, That grantees shall expend at least 50 percent of allocated
funds within 2 years of the date funds become available to the
grantee for obligation, and 100 percent of such funds within 3
years of such date: Provided further, That unless otherwise noted
herein, the provisions of the Act govern the use of the additional
funds made available under this heading: Provided further, That
notwithstanding the provisions of sections 2301(b) and (c)(1) and
section 2302 of the Act, funding under this paragraph shall be
allocated by competitions for which eligible entities shall be States,
units of general local government, and nonprofit entities or consortia
of nonprofit entities, which may submit proposals in partnership
with for profit entities: Provided further, That in selecting grantees,
the Secretary of Housing and Urban Development shall ensure
that the grantees are in areas with the greatest number and
percentage of foreclosures and can expend funding within the period
allowed under this heading: Provided further, That additional award
criteria for such competitions shall include demonstrated grantee
VerDate Nov 24 2008
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Requirements.
Waiver authority.
Deadlines.
Award criteria.
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123 STAT. 218
Publication.
Criteria.
Deadlines.
Deadline.
42 USC 5301
note.
42 USC 5301
note.
Waiver authority.
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Foreclosure.
Notice.
42 USC 5301
note.
VerDate Nov 24 2008
13:51 Mar 03, 2009
PUBLIC LAW 111–5—FEB. 17, 2009
capacity to execute projects, leveraging potential, concentration of
investment to achieve neighborhood stabilization, and any additional factors determined by the Secretary of Housing and Urban
Development: Provided further, That the Secretary may establish
a minimum grant size: Provided further, That the Secretary shall
publish criteria on which to base competition for any grants
awarded under this heading not later than 75 days after the enactment of this Act and applications shall be due to HUD not later
than 150 days after the enactment of this Act: Provided further,
That the Secretary shall obligate all funding within 1 year of
enactment of this Act: Provided further, That section 2301(d)(4)
of the Act is repealed: Provided further, That section 2301(c)(3)(C)
of the Act is amended to read ‘‘establish and operate land banks
for homes and residential properties that have been foreclosed
upon’’: Provided further, That funding used for section 2301(c)(3)(E)
of the Act shall be available only for the redevelopment of demolished or vacant properties as housing: Provided further, That no
amounts made available from a grant under this heading may
be used to demolish any public housing (as such term is defined
in section 3 of the United States Housing Act of 1937 (42 U.S.C.
1437a)): Provided further, That a grantee may not use more than
10 percent of its grant under this heading for demolition activities
under section 2301(c)(3)(C) and (D) unless the Secretary determines
that such use represents an appropriate response to local market
conditions: Provided further, That the recipient of any grant or
loan from amounts made available under this heading or, after
the date of enactment under division B, title III of the Housing
and Economic Recovery Act of 2008, may not refuse to lease a
dwelling unit in housing with such loan or grant to a participant
under section 8 of the United States Housing Act of 1937 (42
U.S.C 1437f) because of the status of the prospective tenant as
such a participant: Provided further, That in addition to the eligible
uses in section 2301, the Secretary may also use up to 10 percent
of the funds provided under this heading for grantees for the
provision of capacity building of and support for local communities
receiving funding under section 2301 of the Act or under this
heading: Provided further, That in administering funds appropriated or otherwise made available under this section, the Secretary may waive or specify alternative requirements for any provision of any statute or regulation in connection with the obligation
by the Secretary or the use of funds except for requirements related
to fair housing, nondiscrimination, labor standards and the environment, upon a finding that such a waiver is necessary to expedite
or facilitate the use of such funds: Provided further, That in the
case of any acquisition of a foreclosed upon dwelling or residential
real property acquired after the date of enactment with any amounts
made available under this heading or under division B, title III
of the Housing and Economic Recovery Act of 2008 (Public Law
110–289), the initial successor in interest in such property pursuant
to the foreclosure shall assume such interest subject to: (1) the
provision by such successor in interest of a notice to vacate to
any bona fide tenant at least 90 days before the effective date
of such notice; and (2) the rights of any bona fide tenant, as
of the date of such notice of foreclosure: (A) under any bona fide
lease entered into before the notice of foreclosure to occupy the
premises until the end of the remaining term of the lease, except
that a successor in interest may terminate a lease effective on
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 219
the date of sale of the unit to a purchaser who will occupy the
unit as a primary residence, subject to the receipt by the tenant
of the 90-day notice under this paragraph; or (B) without a lease
or with a lease terminable at will under State law, subject to
the receipt by the tenant of the 90-day notice under this paragraph,
except that nothing in this paragraph shall affect the requirements
for termination of any Federal- or State-subsidized tenancy or of
any State or local law that provides longer time periods or other
additional protections for tenants: Provided further, That, for purposes of this paragraph, a lease or tenancy shall be considered
bona fide only if: (1) the mortgagor under the contract is not
the tenant; (2) the lease or tenancy was the result of an armslength transaction; and (3) the lease or tenancy requires the receipt
of rent that is not substantially less than fair market rent for
the property: Provided further, That the recipient of any grant
or loan from amounts made available under this heading or, after
the date of enactment, under division B, title III of the Housing
and Economic Recovery Act of 2008 (Public Law 110–289) may
not refuse to lease a dwelling unit in housing assisted with such
loan or grant to a holder of a voucher or certificate of eligibility
under section 8 of the United States Housing Act of 1937 (42
U.S.C. 1437f) because of the status of the prospective tenant as
such a holder: Provided further, That in the case of any qualified
foreclosed housing for which funds made available under this
heading or, after the date of enactment, under division B, title
III of the Housing and Economic Recovery Act of 2008 (Public
Law 110–289) are used and in which a recipient of assistance
under section 8(o) of the U.S. Housing Act of 1937 resides at
the time of foreclosure, the initial successor in interest shall be
subject to the lease and to the housing assistance payments contract
for the occupied unit: Provided further, That vacating the property
prior to sale shall not constitute good cause for termination of
the tenancy unless the property is unmarketable while occupied
or unless the owner or subsequent purchaser desires the unit for
personal or family use: Provided further, That if a public housing
agency is unable to make payments under the contract to the
immediate successor in interest after foreclosures, due to (1) an
action or inaction by the successor in interest, including the rejection of payments or the failure of the successor to maintain the
unit in compliance with section 8(o)(8) of the United States Housing
Act of 1937 (42 U.S.C.1437f) or (2) an inability to identify the
successor, the agency may use funds that would have been used
to pay the rental amount on behalf of the family—(i) to pay for
utilities that are the responsibility of the owner under the lease
or applicable law, after taking reasonable steps to notify the owner
that it intends to make payments to a utility provider in lieu
of payments to the owner, except prior notification shall not be
required in any case in which the unit will be or has been rendered
uninhabitable due to the termination or threat of termination of
service, in which case the public housing agency shall notify the
owner within a reasonable time after making such payment; or
(ii) for the family’s reasonable moving costs, including security
deposit costs: Provided further, That this paragraph shall not preempt any Federal, State or local law that provides more protections
for tenants: Provided further, That of the funds made available
under this heading, up to 1 percent shall be available for staffing,
training, technical assistance, technology, monitoring, travel,
VerDate Nov 24 2008
08:20 Mar 03, 2009
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42 USC 5301
note.
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PUBLIC LAW 111–5—FEB. 17, 2009
enforcement, research and evaluation activities: Provided further,
That funds set aside in the previous proviso shall remain available
until September 30, 2012: Provided further, That any funds made
available under this heading used by the Secretary for personnel
expenses related to administering funding under this heading shall
be transferred to ‘‘Personnel Compensation and Benefits, Community Planning and Development’’ and shall retain the terms and
conditions of this account, including reprogramming provisions,
except that the period of availability set forth in the previous
proviso shall govern such transferred funds: Provided further, That
any funds made available under this heading used by the Secretary
for training or other administrative expenses shall be transferred
to ‘‘Administration, Operations, and Management’’ for non-personnel expenses of the Department of Housing and Urban Development: Provided further, That any funds made available under this
heading used by the Secretary for technology shall be transferred
to ‘‘Working Capital Fund’’.
HOME INVESTMENT PARTNERSHIPS PROGRAM
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Deadlines.
VerDate Nov 24 2008
08:20 Mar 03, 2009
For an additional amount for capital investments in low-income
housing tax credit projects, $2,250,000,000, to remain available
until September 30, 2011: Provided, That such funds shall be made
available to State housing credit agencies, as defined in section
42(h) of the Internal Revenue Code of 1986, and shall be apportioned
among the States based on the percentage of HOME funds apportioned to each State and the participating jurisdictions therein
for Fiscal Year 2008: Provided further, That the housing credit
agencies in each State shall distribute these funds competitively
under this heading and pursuant to their qualified allocation plan
(as defined in section 42(m) of the Internal Revenue Code of 1986)
to owners of projects who have received or receive simultaneously
an award of low-income housing tax credits under section 42(h)
of the Internal Revenue Code of 1986: Provided further, That
housing credit agencies in each State shall commit not less than
75 percent of such funds within one year of the date of enactment
of this Act, and shall demonstrate that the project owners shall
have expended 75 percent of the funds made available under this
heading within two years of the date of enactment of this Act,
and shall have expended 100 percent of the funds within 3 years
of the date of enactment of this Act: Provided further, That failure
by an owner to expend funds within the parameters required within
the previous proviso shall result in a redistribution of these funds
by a housing credit agency to a more deserving project in such
State, except any funds not expended after 3 years from enactment
shall be redistributed by the Secretary to other States that have
fully utilized the funds made available to them: Provided further,
That projects awarded low income housing tax credits under section
42(h) of the IRC of 1986 in fiscal years 2007, 2008, or 2009 shall
be eligible for funding under this heading: Provided further, That
housing credit agencies shall give priority to projects that are
expected to be completed within 3 years of enactment: Provided
further, That any assistance provided to an eligible low income
housing tax credit project under this heading shall be made in
the same manner and be subject to the same limitations (including
rent, income, and use restrictions, in lieu of corresponding limitations under the HOME program) as required by the state housing
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 221
credit agency with respect to an award of low income housing
credits under section 42 of the IRC of 1986: Provided further,
That the housing credit agency shall perform asset management
functions, or shall contract for the performance of such services,
in either case, at the owner’s expense, to ensure compliance with
section 42 of the IRC of 1986, and the long term viability of
buildings funded by assistance under this heading: Provided further,
That the term eligible basis (as such term is defined in such
section 42) of a qualified low-income housing tax credit building
receiving assistance under this heading shall not be reduced by
the amount of any grant described under this heading: Provided
further, That the Secretary shall be given access upon reasonable
notice to a State housing credit agency to information related to
the award of Federal funds from such housing credit agency pursuant to this heading and shall establish an Internet site that shall
identify all projects selected for an award, including the amount
of the award and such site shall provide linkage to the housing
credit agency allocation plan which describes the process that was
used to make the award decision: Provided further, That in administering funds under this heading, the Secretary may waive any
provision of any statute or regulation that the Secretary administers
in connection with the obligation by the Secretary or the use by
the recipient of these funds except for requirements imposed by
this heading and requirements related to fair housing, non-discrimination, labor standards and the environment, upon a finding that
such waiver is required to expedite the use of such funds: Provided
further, That for purposes of environmental compliance review,
funds under this heading that are made available to State housing
credit agencies for distribution to projects awarded low income
housing tax credits shall be treated as funds under the HOME
program and shall be subject to Section 288 of the HOME Investment Partnership Act.
Contracts.
Web site.
Waiver authority.
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HOMELESSNESS PREVENTION FUND
For homelessness prevention and rapid re-housing activities,
$1,500,000,000, to remain available until September 30, 2011: Provided, That funds provided under this heading shall be used for
the provision of short-term or medium-term rental assistance;
housing relocation and stabilization services including housing
search, mediation or outreach to property owners, credit repair,
security or utility deposits, utility payments, rental assistance for
a final month at a location, moving cost assistance, and case
management; or other appropriate activities for homelessness
prevention and rapid re-housing of persons who have become homeless: Provided further, That grantees receiving such assistance shall
collect data on the use of the funds awarded and persons served
with this assistance in the HUD Homeless Management Information
System (‘‘HMIS’’) or other comparable database: Provided further,
That grantees may use up to 5 percent of any grant for administrative costs: Provided further, That funding made available under
this heading shall be allocated to eligible grantees (as defined
and designated in sections 411 and 412 of subtitle B of title IV
of the McKinney-Vento Homeless Assistance Act, (the ‘‘Act’’)) pursuant to the formula authorized by section 413 of the Act: Provided
further, That the Secretary may establish a minimum grant size:
Provided further, That grantees shall expend at least 60 percent
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123 STAT. 222
Waiver authority.
Publication.
Notice.
Deadline.
Effective date.
PUBLIC LAW 111–5—FEB. 17, 2009
of funds within 2 years of the date that funds became available
to them for obligation, and 100 percent of funds within 3 years
of such date, and the Secretary may recapture unexpended funds
in violation of the 2-year expenditure requirement and reallocate
such funds to grantees in compliance with that requirement: Provided further, That the Secretary may waive statutory or regulatory
provisions (except provisions for fair housing, nondiscrimination,
labor standards, and the environment) necessary to facilitate the
timely expenditure of funds: Provided further, That the Secretary
shall publish a notice to establish such requirements as may be
necessary to carry out the provisions of this section within 30
days of enactment of this Act and that this notice shall take effect
upon issuance: Provided further, That of the funds provided under
this heading, up to .5 percent shall be available for staffing,
training, technical assistance, technology, monitoring, research and
evaluation activities: Provided further, That funds set aside under
the previous proviso shall remain available until September 30,
2012: Provided further, That any funds made available under this
heading used by the Secretary for personnel expenses related to
administering funding under this heading shall be transferred to
‘‘Community Planning and Development Personnel Compensation
and Benefits’’ and shall retain the terms and conditions of this
account including reprogramming provisions except that the period
of availability set forth in the previous proviso shall govern such
transferred funds: Provided further, That any funds made available
under this heading used by the Secretary for training or other
administrative expenses shall be transferred to ‘‘Administration,
Operations, and Management’’ for non-personnel expenses of the
Department of Housing and Urban Development: Provided further,
That any funding made available under this heading used by the
Secretary for technology shall be transferred to ‘‘Working Capital
Fund.’’
HOUSING PROGRAMS
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ASSISTED HOUSING STABILITY AND ENERGY AND GREEN RETROFIT
INVESTMENTS
For assistance to owners of properties receiving project-based
assistance pursuant to section 202 of the Housing Act of 1959
(12 U.S.C. 17012), section 811 of the Cranston-Gonzalez National
Affordable Housing Act (42 U.S.C. 8013), or section 8 of the United
States Housing Act of 1937 as amended (42 U.S.C. 1437f),
$2,250,000,000, of which $2,000,000,000 shall be for an additional
amount for paragraph (1) under the heading ‘‘Project-Based Rental
Assistance’’ in Public Law 110–161 for payments to owners for
12-month periods, and of which $250,000,000 shall be for grants
or loans for energy retrofit and green investments in such assisted
housing: Provided, That projects funded with grants or loans provided under this heading must comply with the requirements of
subchapter IV of chapter 31 of title 40, United States Code: Provided
further, That such grants or loans shall be provided through the
policies, procedures, contracts, and transactional infrastructure of
the authorized programs administered by the Office of Affordable
Housing Preservation of the Department of Housing and Urban
Development, on such terms and conditions as the Secretary of
Housing and Urban Development deems appropriate to ensure the
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 223
maintenance and preservation of the property, the continued operation and maintenance of energy efficiency technologies, and the
timely expenditure of funds: Provided further, That the Secretary
may provide incentives to owners to undertake energy or green
retrofits as a part of such grant or loan terms, including, but
not limited to, fees to cover investment oversight and implementation by said owner, or to encourage job creation for low-income
or very low-income individuals: Provided further, That the Secretary
may share in a portion of future property utility savings resulting
from improvements made by grants or loans made available under
this heading: Provided further, That the grants or loans shall
include a financial assessment and physical inspection of such property: Provided further, That eligible owners must have at least
a satisfactory management review rating, be in substantial compliance with applicable performance standards and legal requirements,
and commit to an additional period of affordability determined
by the Secretary, but of not fewer than 15 years: Provided further,
That the Secretary shall undertake appropriate underwriting and
oversight with respect to grant and loan transactions and may
set aside up to 5 percent of the funds made available under this
heading for grants or loans for such purpose: Provided further,
That the Secretary shall take steps necessary to ensure that owners
receiving funding for energy and green retrofit investments under
this heading shall expend such funding within 2 years of the date
they received the funding: Provided further, That in administering
funds appropriated or otherwise made available under this heading,
the Secretary may waive or specify alternative requirements for
any provision of any statute or regulation in connection with the
obligation by the Secretary or the use of these funds (except for
requirements related to fair housing, nondiscrimination, labor
standards, and the environment), upon a finding that such a waiver
is necessary to expedite or facilitate the use of such funds: Provided
further, That of the funds provided under this heading for grants
and loans, up to 1 percent shall be available for staffing, training,
technical assistance, technology, monitoring, research and evaluation activities: Provided further, That funds set aside in the previous
proviso shall remain available until September 30, 2012: Provided
further, That funding made available under this heading and used
by the Secretary for personnel expenses related to administering
funding under this heading shall be transferred to ‘‘Housing Personnel Compensation and Benefits’’ and shall retain the terms
and conditions of this account including reprogramming provisos
except that the period of availability set forth in the previous
proviso shall govern such transferred funds: Provided further, That
any funding made available under this heading used by the Secretary for training and other administrative expenses shall be transferred to ‘‘Administration, Operations and Management’’ for nonpersonnel expenses of the Department of Housing and Urban
Development: Provided further, That any funding made available
under this heading used by the Secretary for technology shall
be transferred to ‘‘Working Capital Fund.’’
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OFFICE
OF
LEAD HAZARD CONTROL
AND
Waiver authority.
HEALTHY HOMES
For an additional amount for the ‘‘Lead Hazard Reduction
Program’’, as authorized by section 1011 of the Residential LeadBased Paint Hazard Reduction Act of 1992, and by sections 501
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Plans.
Strategy.
Deadlines.
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Waiver authority.
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PUBLIC LAW 111–5—FEB. 17, 2009
and 502 of the Housing and Urban Development Act of 1974,
$100,000,000, to remain available until September 30, 2011: Provided, That for purposes of environmental review, pursuant to
the National Environmental Policy Act of 1969 (42 U.S.C. 4321
et seq.) and other provisions of law that further the purposes
of such Act, a grant under the Healthy Homes Initiative, Operation
Lead Elimination Action Plan (LEAP), or the Lead Technical
Studies program under this heading or under prior appropriations
Acts for such purposes under this heading, shall be considered
to be funds for a special project for purposes of section 305(e)
of the Multifamily Housing Property Disposition Reform Act of
1994: Provided further, That funds shall be awarded first to
applicants which had applied under the Lead Hazard Reduction
Program Notices of Funding Availability for fiscal year 2008, and
were found in the application review to be qualified for award,
but were not awarded because of funding limitations, and that
any funds which remain after reservation of funds for such grants
shall be added to the amount of funds to be awarded under the
Lead Hazard Reduction Program Notices of Funding Availability
for fiscal year 2009: Provided further, That each applicant for the
Lead Hazard Program Notices of Funding Availability for fiscal
year 2009 shall submit a detailed plan and strategy that demonstrates adequate capacity that is acceptable to the Secretary
to carry out the proposed use of funds: Provided further, That
recipients of funds under this heading shall expend at least 50
percent of such funds within 2 years of the date on which funds
become available to such jurisdictions for obligation, and expend
100 percent of such funds within 3 years of such date: Provided
further, That if a recipient fails to comply with the 2-year expenditure requirement, the Secretary shall recapture all remaining funds
awarded to the recipient and reallocate such funds to recipients
that are in compliance with those requirements: Provided further,
That if a recipient fails to comply with the 3-year expenditure
requirement, the Secretary shall recapture the balance of the funds
awarded to the recipient: Provided further, That in administering
funds appropriated or otherwise made available under this heading,
the Secretary may waive or specify alternative requirements for
any provision of any statute or regulation in connection with the
obligation by the Secretary or the use of these funds (except for
requirements related to fair housing, nondiscrimination, labor
standards and the environment), upon a finding that such a waiver
is necessary to expedite or facilitate the use of such funds: Provided
further, That of the funds made available under this heading,
up to .5 percent shall be available for staffing, training, technical
assistance, technology, monitoring, travel, enforcement, research
and evaluation activities: Provided further, That funds set aside
in the previous proviso shall remain available until September
30, 2012: Provided further, That any funds made available under
this heading used by the Secretary for personnel expenses related
to administering funding under this heading shall be transferred
to ‘‘Personnel Compensation and Benefits, Office of Lead Hazard
Control and Healthy Homes’’ and shall retain the terms and conditions of this account, including reprogramming provisions, except
that the period of availability set forth in the previous proviso
shall govern such transferred funds: Provided further, That any
funds made available under this heading used by the Secretary
for training or other administrative expenses shall be transferred
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 225
to ‘‘Administration, Operations, and Management’’, for non-personnel expenses of the Department of Housing and Urban Development: Provided further, That any funds made available under this
heading used by the Secretary for technology shall be transferred
to ‘‘Working Capital Fund’’.
MANAGEMENT
AND
ADMINISTRATION
OFFICE OF INSPECTOR GENERAL
For an additional amount for the necessary salaries and
expenses of the Office of Inspector General in carrying out the
Inspector General Act of 1978, as amended, $15,000,000, to remain
available until September 30, 2013: Provided, That the Inspector
General shall have independent authority over all personnel issues
within this office.
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GENERAL PROVISIONS—DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
SEC. 1202. FHA LOAN LIMITS FOR 2009. (a) LOAN LIMIT FLOOR
BASED ON 2008 LEVELS.—For mortgages for which the mortgagee
issues credit approval for the borrower during calendar year 2009,
if the dollar amount limitation on the principal obligation of a
mortgage determined under section 203(b)(2) of the National
Housing Act (12 U.S.C. 1709(b)(2)) for any size residence for any
area is less than such dollar amount limitation that was in effect
for such size residence for such area for 2008 pursuant to section
202 of the Economic Stimulus Act of 2008 (Public Law 110–185;
122 Stat. 620), notwithstanding any other provision of law, the
maximum dollar amount limitation on the principal obligation of
a mortgage for such size residence for such area for purposes
of such section 203(b)(2) shall be considered (except for purposes
of section 255(g) of such Act (12 U.S.C. 1715z–20(g))) to be such
dollar amount limitation in effect for such size residence for such
area for 2008.
(b) DISCRETIONARY AUTHORITY FOR SUB-AREAS.—Notwithstanding any other provision of law, if the Secretary of Housing
and Urban Development determines, for any geographic area that
is smaller than an area for which dollar amount limitations on
the principal obligation of a mortgage are determined under section
203(b)(2) of the National Housing Act, that a higher such maximum
dollar amount limitation is warranted for any particular size or
sizes of residences in such sub-area by higher median home prices
in such sub-area, the Secretary may, for mortgages for which the
mortgagee issues credit approval for the borrower during calendar
year 2009, increase the maximum dollar amount limitation for
such size or sizes of residences for such sub-area that is otherwise
in effect (including pursuant to subsection (a) of this section), but
in no case to an amount that exceeds the amount specified in
section 202(a)(2) of the Economic Stimulus Act of 2008.
SEC. 1203. GSE CONFORMING LOAN LIMITS FOR 2009. (a) LOAN
LIMIT FLOOR BASED ON 2008 LEVELS.—For mortgages originated
during calendar year 2009, if the limitation on the maximum
original principal obligation of a mortgage that may be purchased
by the Federal National Mortgage Association or the Federal Home
Loan Mortgage Corporation determined under section 302(b)(2) of
the Federal National Mortgage Association Charter Act (12 U.S.C.
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PUBLIC LAW 111–5—FEB. 17, 2009
1717(b)(2)) or section 305(a)(2) of the Federal Home Loan Mortgage
Corporation Act (12 U.S.C. 1754(a)(2)), respectively, for any size
residence for any area is less than such maximum original principal
obligation limitation that was in effect for such size residence
for such area for 2008 pursuant to section 201 of the Economic
Stimulus Act of 2008 (Public Law 110–185; 122 Stat. 619), notwithstanding any other provision of law, the limitation on the maximum
original principal obligation of a mortgage for such Association
and Corporation for such size residence for such area shall be
such maximum limitation in effect for such size residence for such
area for 2008.
(b) DISCRETIONARY AUTHORITY FOR SUB-AREAS.—Notwithstanding any other provision of law, if the Director of the Federal
Housing Finance Agency determines, for any geographic area that
is smaller than an area for which limitations on the maximum
original principal obligation of a mortgage are determined for the
Federal National Mortgage Association or the Federal Home Loan
Mortgage Corporation, that a higher such maximum original principal obligation limitation is warranted for any particular size or
sizes of residences in such sub-area by higher median home prices
in such sub-area, the Director may, for mortgages originated during
2009, increase the maximum original principal obligation limitation
for such size or sizes of residences for such sub-area that is otherwise in effect (including pursuant to subsection (a) of this section)
for such Association and Corporation, but in no case to an amount
that exceeds the amount specified in the matter following the
comma in section 201(a)(1)(B) of the Economic Stimulus Act of
2008.
SEC. 1204. FHA REVERSE MORTGAGE LOAN LIMITS FOR 2009.
For mortgages for which the mortgagee issues credit approval for
the borrower during calendar year 2009, the second sentence of
section 255(g) of the National Housing Act (12 U.S.C. 1715z–20(g))
shall be considered to require that in no case may the benefits
of insurance under such section 255 exceed 150 percent of the
maximum dollar amount in effect under the sixth sentence of section
305(a)(2) of the Federal Home Loan Mortgage Corporation Act
(12 U.S.C. 1454(a)(2)).
Health
Information
Technology for
Economic and
Clinical Health
Act.
42 USC 201 note.
TITLE XIII—HEALTH INFORMATION
TECHNOLOGY
SEC. 13001. SHORT TITLE; TABLE OF CONTENTS OF TITLE.
(a) SHORT TITLE.—This title (and title IV of division B) may
be cited as the ‘‘Health Information Technology for Economic and
Clinical Health Act’’ or the ‘‘HITECH Act’’.
(b) TABLE OF CONTENTS OF TITLE.—The table of contents of
this title is as follows:
Sec. 13001. Short title; table of contents of title.
Subtitle A—Promotion of Health Information Technology
PART 1—IMPROVING HEALTH CARE QUALITY, SAFETY,
AND
EFFICIENCY
Sec. 13101. ONCHIT; standards development and adoption.
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‘‘TITLE XXX—HEALTH INFORMATION TECHNOLOGY AND QUALITY
‘‘Sec. 3000. Definitions.
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 227
‘‘Subtitle A—Promotion of Health Information Technology
‘‘Sec. 3001. Office of the National Coordinator for Health Information Technology.
‘‘Sec. 3002. HIT Policy Committee.
‘‘Sec. 3003. HIT Standards Committee.
‘‘Sec. 3004. Process for adoption of endorsed recommendations; adoption of initial set of standards, implementation specifications, and certification
criteria.
‘‘Sec. 3005. Application and use of adopted standards and implementation specifications by Federal agencies.
‘‘Sec. 3006. Voluntary application and use of adopted standards and implementation specifications by private entities.
‘‘Sec. 3007. Federal health information technology.
‘‘Sec. 3008. Transitions.
‘‘Sec. 3009. Miscellaneous provisions.
Sec. 13102. Technical amendment.
PART 2—APPLICATION
USE OF ADOPTED HEALTH INFORMATION TECHNOLOGY
STANDARDS; REPORTS
Sec. 13111. Coordination of Federal activities with adopted standards and implementation specifications.
Sec. 13112. Application to private entities.
Sec. 13113. Study and reports.
AND
Subtitle B—Testing of Health Information Technology
Sec. 13201. National Institute for Standards and Technology testing.
Sec. 13202. Research and development programs.
Subtitle C—Grants and Loans Funding
Sec. 13301. Grant, loan, and demonstration programs.
‘‘Subtitle B—Incentives for the Use of Health Information Technology
‘‘Sec. 3011. Immediate funding to strengthen the health information technology
infrastructure.
‘‘Sec. 3012. Health information technology implementation assistance.
‘‘Sec. 3013. State grants to promote health information technology.
‘‘Sec. 3014. Competitive grants to States and Indian tribes for the development
of loan programs to facilitate the widespread adoption of certified
EHR technology.
‘‘Sec. 3015. Demonstration program to integrate information technology into
clinical education.
‘‘Sec. 3016. Information technology professionals in health care.
‘‘Sec. 3017. General grant and loan provisions.
‘‘Sec. 3018. Authorization for appropriations.
Subtitle D—Privacy
Sec. 13400. Definitions.
PART 1—IMPROVED PRIVACY PROVISIONS AND SECURITY PROVISIONS
Sec. 13401. Application of security provisions and penalties to business associates
of covered entities; annual guidance on security provisions.
Sec. 13402. Notification in the case of breach.
Sec. 13403. Education on health information privacy.
Sec. 13404. Application of privacy provisions and penalties to business associates of
covered entities.
Sec. 13405. Restrictions on certain disclosures and sales of health information; accounting of certain protected health information disclosures; access to
certain information in electronic format.
Sec. 13406. Conditions on certain contacts as part of health care operations.
Sec. 13407. Temporary breach notification requirement for vendors of personal
health records and other non-HIPAA covered entities.
Sec. 13408. Business associate contracts required for certain entities.
Sec. 13409. Clarification of application of wrongful disclosures criminal penalties.
Sec. 13410. Improved enforcement.
Sec. 13411. Audits.
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PART 2—RELATIONSHIP
OTHER LAWS; REGULATORY REFERENCES; EFFECTIVE
DATE; REPORTS
Sec. 13421. Relationship to other laws.
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PUBLIC LAW 111–5—FEB. 17, 2009
Sec. 13422. Regulatory references.
Sec. 13423. Effective date.
Sec. 13424. Studies, reports, guidance.
Subtitle A—Promotion of Health
Information Technology
PART 1—IMPROVING HEALTH CARE QUALITY,
SAFETY, AND EFFICIENCY
SEC. 13101. ONCHIT; STANDARDS DEVELOPMENT AND ADOPTION.
The Public Health Service Act (42 U.S.C. 201 et seq.) is
amended by adding at the end the following:
‘‘TITLE XXX—HEALTH INFORMATION
TECHNOLOGY AND QUALITY
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42 USC 300jj.
‘‘SEC. 3000. DEFINITIONS.
‘‘In this title:
‘‘(1) CERTIFIED EHR TECHNOLOGY.—The term ‘certified EHR
technology’ means a qualified electronic health record that is
certified pursuant to section 3001(c)(5) as meeting standards
adopted under section 3004 that are applicable to the type
of record involved (as determined by the Secretary, such as
an ambulatory electronic health record for office-based physicians or an inpatient hospital electronic health record for hospitals).
‘‘(2) ENTERPRISE INTEGRATION.—The term ‘enterprise
integration’ means the electronic linkage of health care providers, health plans, the government, and other interested parties, to enable the electronic exchange and use of health
information among all the components in the health care infrastructure in accordance with applicable law, and such term
includes related application protocols and other related standards.
‘‘(3) HEALTH CARE PROVIDER.—The term ‘health care provider’ includes a hospital, skilled nursing facility, nursing
facility, home health entity or other long term care facility,
health care clinic, community mental health center (as defined
in section 1913(b)(1)), renal dialysis facility, blood center,
ambulatory surgical center described in section 1833(i) of the
Social Security Act, emergency medical services provider, Federally qualified health center, group practice, a pharmacist, a
pharmacy, a laboratory, a physician (as defined in section
1861(r) of the Social Security Act), a practitioner (as described
in section 1842(b)(18)(C) of the Social Security Act), a provider
operated by, or under contract with, the Indian Health Service
or by an Indian tribe (as defined in the Indian Self-Determination and Education Assistance Act), tribal organization, or
urban Indian organization (as defined in section 4 of the Indian
Health Care Improvement Act), a rural health clinic, a covered
entity under section 340B, an ambulatory surgical center
described in section 1833(i) of the Social Security Act, a therapist (as defined in section 1848(k)(3)(B)(iii) of the Social Security
Act), and any other category of health care facility, entity,
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practitioner, or clinician determined appropriate by the Secretary.
‘‘(4) HEALTH INFORMATION.—The term ‘health information’
has the meaning given such term in section 1171(4) of the
Social Security Act.
‘‘(5) HEALTH INFORMATION TECHNOLOGY.—The term ‘health
information technology’ means hardware, software, integrated
technologies or related licenses, intellectual property, upgrades,
or packaged solutions sold as services that are designed for
or support the use by health care entities or patients for the
electronic creation, maintenance, access, or exchange of health
information
‘‘(6) HEALTH PLAN.—The term ‘health plan’ has the meaning
given such term in section 1171(5) of the Social Security Act.
‘‘(7) HIT POLICY COMMITTEE.—The term ‘HIT Policy Committee’ means such Committee established under section
3002(a).
‘‘(8) HIT STANDARDS COMMITTEE.—The term ‘HIT Standards
Committee’ means such Committee established under section
3003(a).
‘‘(9) INDIVIDUALLY IDENTIFIABLE HEALTH INFORMATION.—
The term ‘individually identifiable health information’ has the
meaning given such term in section 1171(6) of the Social Security Act.
‘‘(10) LABORATORY.—The term ‘laboratory’ has the meaning
given such term in section 353(a).
‘‘(11) NATIONAL COORDINATOR.—The term ‘National Coordinator’ means the head of the Office of the National Coordinator
for Health Information Technology established under section
3001(a).
‘‘(12) PHARMACIST.—The term ‘pharmacist’ has the meaning
given such term in section 804(2) of the Federal Food, Drug,
and Cosmetic Act.
‘‘(13) QUALIFIED ELECTRONIC HEALTH RECORD.—The term
‘qualified electronic health record’ means an electronic record
of health-related information on an individual that—
‘‘(A) includes patient demographic and clinical health
information, such as medical history and problem lists;
and
‘‘(B) has the capacity—
‘‘(i) to provide clinical decision support;
‘‘(ii) to support physician order entry;
‘‘(iii) to capture and query information relevant
to health care quality; and
‘‘(iv) to exchange electronic health information
with, and integrate such information from other
sources.
‘‘(14) STATE.—The term ‘State’ means each of the several
States, the District of Columbia, Puerto Rico, the Virgin Islands,
Guam, American Samoa, and the Northern Mariana Islands.
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PUBLIC LAW 111–5—FEB. 17, 2009
‘‘Subtitle A—Promotion of Health
Information Technology
42 USC 300jj–11.
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Reports.
Deadline.
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‘‘SEC. 3001. OFFICE OF THE NATIONAL COORDINATOR FOR HEALTH
INFORMATION TECHNOLOGY.
‘‘(a) ESTABLISHMENT.—There is established within the Department of Health and Human Services an Office of the National
Coordinator for Health Information Technology (referred to in this
section as the ‘Office’). The Office shall be headed by a National
Coordinator who shall be appointed by the Secretary and shall
report directly to the Secretary.
‘‘(b) PURPOSE.—The National Coordinator shall perform the
duties under subsection (c) in a manner consistent with the development of a nationwide health information technology infrastructure
that allows for the electronic use and exchange of information
and that—
‘‘(1) ensures that each patient’s health information is secure
and protected, in accordance with applicable law;
‘‘(2) improves health care quality, reduces medical errors,
reduces health disparities, and advances the delivery of patientcentered medical care;
‘‘(3) reduces health care costs resulting from inefficiency,
medical errors, inappropriate care, duplicative care, and incomplete information;
‘‘(4) provides appropriate information to help guide medical
decisions at the time and place of care;
‘‘(5) ensures the inclusion of meaningful public input in
such development of such infrastructure;
‘‘(6) improves the coordination of care and information
among hospitals, laboratories, physician offices, and other entities through an effective infrastructure for the secure and
authorized exchange of health care information;
‘‘(7) improves public health activities and facilitates the
early identification and rapid response to public health threats
and emergencies, including bioterror events and infectious disease outbreaks;
‘‘(8) facilitates health and clinical research and health care
quality;
‘‘(9) promotes early detection, prevention, and management
of chronic diseases;
‘‘(10) promotes a more effective marketplace, greater competition, greater systems analysis, increased consumer choice,
and improved outcomes in health care services; and
‘‘(11) improves efforts to reduce health disparities.
‘‘(c) DUTIES OF THE NATIONAL COORDINATOR.—
‘‘(1) STANDARDS.—The National Coordinator shall—
‘‘(A) review and determine whether to endorse each
standard, implementation specification, and certification
criterion for the electronic exchange and use of health
information that is recommended by the HIT Standards
Committee under section 3003 for purposes of adoption
under section 3004;
‘‘(B) make such determinations under subparagraph
(A), and report to the Secretary such determinations, not
later than 45 days after the date the recommendation
is received by the Coordinator; and
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 231
‘‘(C) review Federal health information technology
investments to ensure that Federal health information
technology programs are meeting the objectives of the strategic plan published under paragraph (3).
‘‘(2) HIT POLICY COORDINATION.—
‘‘(A) IN GENERAL.—The National Coordinator shall
coordinate health information technology policy and programs of the Department with those of other relevant
executive branch agencies with a goal of avoiding duplication of efforts and of helping to ensure that each agency
undertakes health information technology activities primarily within the areas of its greatest expertise and technical capability and in a manner towards a coordinated
national goal.
‘‘(B) HIT POLICY AND STANDARDS COMMITTEES.—The
National Coordinator shall be a leading member in the
establishment and operations of the HIT Policy Committee
and the HIT Standards Committee and shall serve as a
liaison among those two Committees and the Federal
Government.
‘‘(3) STRATEGIC PLAN.—
‘‘(A) IN GENERAL.—The National Coordinator shall, in
consultation with other appropriate Federal agencies
(including the National Institute of Standards and Technology), update the Federal Health IT Strategic Plan (developed as of June 3, 2008) to include specific objectives,
milestones, and metrics with respect to the following:
‘‘(i) The electronic exchange and use of health
information and the enterprise integration of such
information.
‘‘(ii) The utilization of an electronic health record
for each person in the United States by 2014.
‘‘(iii) The incorporation of privacy and security
protections for the electronic exchange of an individual’s individually identifiable health information.
‘‘(iv) Ensuring security methods to ensure appropriate authorization and electronic authentication of
health information and specifying technologies or
methodologies for rendering health information unusable, unreadable, or indecipherable.
‘‘(v) Specifying a framework for coordination and
flow of recommendations and policies under this subtitle among the Secretary, the National Coordinator,
the HIT Policy Committee, the HIT Standards Committee, and other health information exchanges and
other relevant entities.
‘‘(vi) Methods to foster the public understanding
of health information technology.
‘‘(vii) Strategies to enhance the use of health
information technology in improving the quality of
health care, reducing medical errors, reducing health
disparities, improving public health, increasing prevention and coordination with community resources, and
improving the continuity of care among health care
settings.
‘‘(viii) Specific plans for ensuring that populations
with unique needs, such as children, are appropriately
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123 STAT. 232
PUBLIC LAW 111–5—FEB. 17, 2009
addressed in the technology design, as appropriate,
which may include technology that automates enrollment and retention for eligible individuals.
‘‘(B) COLLABORATION.—The strategic plan shall be
updated through collaboration of public and private entities.
‘‘(C) MEASURABLE OUTCOME GOALS.—The strategic plan
update shall include measurable outcome goals.
‘‘(D) PUBLICATION.—The National Coordinator shall
republish the strategic plan, including all updates.
‘‘(4) WEBSITE.—The National Coordinator shall maintain
and frequently update an Internet website on which there
is posted information on the work, schedules, reports, recommendations, and other information to ensure transparency
in promotion of a nationwide health information technology
infrastructure.
‘‘(5) CERTIFICATION.—
‘‘(A) IN GENERAL.—The National Coordinator, in consultation with the Director of the National Institute of
Standards and Technology, shall keep or recognize a program or programs for the voluntary certification of health
information technology as being in compliance with
applicable certification criteria adopted under this subtitle.
Such program shall include, as appropriate, testing of the
technology in accordance with section 13201(b) of the
Health Information Technology for Economic and Clinical
Health Act.
‘‘(B) CERTIFICATION CRITERIA DESCRIBED.—In this title,
the term ‘certification criteria’ means, with respect to standards and implementation specifications for health information technology, criteria to establish that the technology
meets such standards and implementation specifications.
‘‘(6) REPORTS AND PUBLICATIONS.—
‘‘(A) REPORT ON ADDITIONAL FUNDING OR AUTHORITY
NEEDED.—Not later than 12 months after the date of the
enactment of this title, the National Coordinator shall
submit to the appropriate committees of jurisdiction of
the House of Representatives and the Senate a report
on any additional funding or authority the Coordinator
or the HIT Policy Committee or HIT Standards Committee
requires to evaluate and develop standards, implementation specifications, and certification criteria, or to achieve
full participation of stakeholders in the adoption of a
nationwide health information technology infrastructure
that allows for the electronic use and exchange of health
information.
‘‘(B) IMPLEMENTATION REPORT.—The National Coordinator shall prepare a report that identifies lessons learned
from major public and private health care systems in their
implementation of health information technology, including
information on whether the technologies and practices
developed by such systems may be applicable to and usable
in whole or in part by other health care providers.
‘‘(C) ASSESSMENT OF IMPACT OF HIT ON COMMUNITIES
WITH HEALTH DISPARITIES AND UNINSURED, UNDERINSURED,
AND MEDICALLY UNDERSERVED AREAS.—The National
Coordinator shall assess and publish the impact of health
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 233
information technology in communities with health disparities and in areas with a high proportion of individuals
who are uninsured, underinsured, and medically underserved individuals (including urban and rural areas) and
identify practices to increase the adoption of such technology by health care providers in such communities, and
the use of health information technology to reduce and
better manage chronic diseases.
‘‘(D) EVALUATION OF BENEFITS AND COSTS OF THE ELECTRONIC USE AND EXCHANGE OF HEALTH INFORMATION.—
The National Coordinator shall evaluate and publish evidence on the benefits and costs of the electronic use and
exchange of health information and assess to whom these
benefits and costs accrue.
‘‘(E) RESOURCE REQUIREMENTS.—The National Coordinator shall estimate and publish resources required
annually to reach the goal of utilization of an electronic
health record for each person in the United States by
2014, including—
‘‘(i) the required level of Federal funding;
‘‘(ii) expectations for regional, State, and private
investment;
‘‘(iii) the expected contributions by volunteers to
activities for the utilization of such records; and
‘‘(iv) the resources needed to establish a health
information technology workforce sufficient to support
this effort (including education programs in medical
informatics and health information management).
‘‘(7) ASSISTANCE.—The National Coordinator may provide
financial assistance to consumer advocacy groups and not-forprofit entities that work in the public interest for purposes
of defraying the cost to such groups and entities to participate
under, whether in whole or in part, the National Technology
Transfer Act of 1995 (15 U.S.C. 272 note).
‘‘(8) GOVERNANCE FOR NATIONWIDE HEALTH INFORMATION
NETWORK.—The National Coordinator shall establish a governance mechanism for the nationwide health information network.
‘‘(d) DETAIL OF FEDERAL EMPLOYEES.—
‘‘(1) IN GENERAL.—Upon the request of the National Coordinator, the head of any Federal agency is authorized to detail,
with or without reimbursement from the Office, any of the
personnel of such agency to the Office to assist it in carrying
out its duties under this section.
‘‘(2) EFFECT OF DETAIL.—Any detail of personnel under
paragraph (1) shall—
‘‘(A) not interrupt or otherwise affect the civil service
status or privileges of the Federal employee; and
‘‘(B) be in addition to any other staff of the Department
employed by the National Coordinator.
‘‘(3) ACCEPTANCE OF DETAILEES.—Notwithstanding any
other provision of law, the Office may accept detailed personnel
from other Federal agencies without regard to whether the
agency described under paragraph (1) is reimbursed.
‘‘(e) CHIEF PRIVACY OFFICER OF THE OFFICE OF THE NATIONAL
COORDINATOR.—Not later than 12 months after the date of the
enactment of this title, the Secretary shall appoint a Chief Privacy
Officer of the Office of the National Coordinator, whose duty it
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123 STAT. 234
PUBLIC LAW 111–5—FEB. 17, 2009
shall be to advise the National Coordinator on privacy, security,
and data stewardship of electronic health information and to coordinate with other Federal agencies (and similar privacy officers in
such agencies), with State and regional efforts, and with foreign
countries with regard to the privacy, security, and data stewardship
of electronic individually identifiable health information.
42 USC 300jj–12.
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‘‘SEC. 3002. HIT POLICY COMMITTEE.
‘‘(a) ESTABLISHMENT.—There is established a HIT Policy Committee to make policy recommendations to the National Coordinator
relating to the implementation of a nationwide health information
technology infrastructure, including implementation of the strategic
plan described in section 3001(c)(3).
‘‘(b) DUTIES.—
‘‘(1) RECOMMENDATIONS ON HEALTH INFORMATION TECHNOLOGY INFRASTRUCTURE.—The HIT Policy Committee shall
recommend a policy framework for the development and adoption of a nationwide health information technology infrastructure that permits the electronic exchange and use of health
information as is consistent with the strategic plan under section 3001(c)(3) and that includes the recommendations under
paragraph (2). The Committee shall update such recommendations and make new recommendations as appropriate.
‘‘(2) SPECIFIC AREAS OF STANDARD DEVELOPMENT.—
‘‘(A) IN GENERAL.—The HIT Policy Committee shall
recommend the areas in which standards, implementation
specifications, and certification criteria are needed for the
electronic exchange and use of health information for purposes of adoption under section 3004 and shall recommend
an order of priority for the development, harmonization,
and recognition of such standards, specifications, and certification criteria among the areas so recommended. Such
standards and implementation specifications shall include
named standards, architectures, and software schemes for
the authentication and security of individually identifiable
health information and other information as needed to
ensure the reproducible development of common solutions
across disparate entities.
‘‘(B) AREAS REQUIRED FOR CONSIDERATION.—For purposes of subparagraph (A), the HIT Policy Committee shall
make recommendations for at least the following areas:
‘‘(i) Technologies that protect the privacy of health
information and promote security in a qualified electronic health record, including for the segmentation
and protection from disclosure of specific and sensitive
individually identifiable health information with the
goal of minimizing the reluctance of patients to seek
care (or disclose information about a condition) because
of privacy concerns, in accordance with applicable law,
and for the use and disclosure of limited data sets
of such information.
‘‘(ii) A nationwide health information technology
infrastructure that allows for the electronic use and
accurate exchange of health information.
‘‘(iii) The utilization of a certified electronic health
record for each person in the United States by 2014.
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 235
‘‘(iv) Technologies that as a part of a qualified
electronic health record allow for an accounting of
disclosures made by a covered entity (as defined for
purposes of regulations promulgated under section
264(c) of the Health Insurance Portability and Accountability Act of 1996) for purposes of treatment, payment,
and health care operations (as such terms are defined
for purposes of such regulations).
‘‘(v) The use of certified electronic health records
to improve the quality of health care, such as by promoting the coordination of health care and improving
continuity of health care among health care providers,
by reducing medical errors, by improving population
health, by reducing health disparities, by reducing
chronic disease, and by advancing research and education.
‘‘(vi) Technologies that allow individually identifiable health information to be rendered unusable,
unreadable, or indecipherable to unauthorized individuals when such information is transmitted in the
nationwide health information network or physically
transported outside of the secured, physical perimeter
of a health care provider, health plan, or health care
clearinghouse.
‘‘(vii) The use of electronic systems to ensure the
comprehensive collection of patient demographic data,
including, at a minimum, race, ethnicity, primary language, and gender information.
‘‘(viii) Technologies that address the needs of children and other vulnerable populations.
‘‘(C) OTHER AREAS FOR CONSIDERATION.—In making
recommendations under subparagraph (A), the HIT Policy
Committee may consider the following additional areas:
‘‘(i) The appropriate uses of a nationwide health
information infrastructure, including for purposes of—
‘‘(I) the collection of quality data and public
reporting;
‘‘(II) biosurveillance and public health;
‘‘(III) medical and clinical research; and
‘‘(IV) drug safety.
‘‘(ii) Self-service technologies that facilitate the use
and exchange of patient information and reduce wait
times.
‘‘(iii) Telemedicine technologies, in order to reduce
travel requirements for patients in remote areas.
‘‘(iv) Technologies that facilitate home health care
and the monitoring of patients recuperating at home.
‘‘(v) Technologies that help reduce medical errors.
‘‘(vi) Technologies that facilitate the continuity of
care among health settings.
‘‘(vii) Technologies that meet the needs of diverse
populations.
‘‘(viii) Methods to facilitate secure access by an
individual to such individual’s protected health
information.
‘‘(ix) Methods, guidelines, and safeguards to facilitate secure access to patient information by a family
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123 STAT. 236
member, caregiver, or guardian acting on behalf of
a patient due to age-related and other disability, cognitive impairment, or dementia.
‘‘(x) Any other technology that the HIT Policy Committee finds to be among the technologies with the
greatest potential to improve the quality and efficiency
of health care.
‘‘(3) FORUM.—The HIT Policy Committee shall serve as
a forum for broad stakeholder input with specific expertise
in policies relating to the matters described in paragraphs
(1) and (2).
‘‘(4) CONSISTENCY WITH EVALUATION CONDUCTED UNDER
MIPPA.—
‘‘(A) REQUIREMENT FOR CONSISTENCY.—The HIT Policy
Committee shall ensure that recommendations made under
paragraph (2)(B)(vi) are consistent with the evaluation conducted under section 1809(a) of the Social Security Act.
‘‘(B) SCOPE.—Nothing in subparagraph (A) shall be
construed to limit the recommendations under paragraph
(2)(B)(vi) to the elements described in section 1809(a)(3)
of the Social Security Act.
‘‘(C) TIMING.—The requirement under subparagraph
(A) shall be applicable to the extent that evaluations have
been conducted under section 1809(a) of the Social Security
Act, regardless of whether the report described in subsection (b) of such section has been submitted.
‘‘(c) MEMBERSHIP AND OPERATIONS.—
‘‘(1) IN GENERAL.—The National Coordinator shall take a
leading position in the establishment and operations of the
HIT Policy Committee.
‘‘(2) MEMBERSHIP.—The HIT Policy Committee shall be
composed of members to be appointed as follows:
‘‘(A) 3 members shall be appointed by the Secretary,
1 of whom shall be appointed to represent the Department
of Health and Human Services and 1 of whom shall be
a public health official.
‘‘(B) 1 member shall be appointed by the majority
leader of the Senate.
‘‘(C) 1 member shall be appointed by the minority
leader of the Senate.
‘‘(D) 1 member shall be appointed by the Speaker of
the House of Representatives.
‘‘(E) 1 member shall be appointed by the minority
leader of the House of Representatives.
‘‘(F) Such other members as shall be appointed by
the President as representatives of other relevant Federal
agencies.
‘‘(G) 13 members shall be appointed by the Comptroller
General of the United States of whom—
‘‘(i) 3 members shall advocates for patients or consumers;
‘‘(ii) 2 members shall represent health care providers, one of which shall be a physician;
‘‘(iii) 1 member shall be from a labor organization
representing health care workers;
‘‘(iv) 1 member shall have expertise in health
information privacy and security;
Applicability.
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 237
‘‘(v) 1 member shall have expertise in improving
the health of vulnerable populations;
‘‘(vi) 1 member shall be from the research community;
‘‘(vii) 1 member shall represent health plans or
other third-party payers;
‘‘(viii) 1 member shall represent information technology vendors;
‘‘(ix) 1 member shall represent purchasers or
employers; and
‘‘(x) 1 member shall have expertise in health care
quality measurement and reporting.
‘‘(3) PARTICIPATION.—The members of the HIT Policy Committee appointed under paragraph (2) shall represent a balance
among various sectors of the health care system so that no
single sector unduly influences the recommendations of the
Policy Committee.
‘‘(4) TERMS.—
‘‘(A) IN GENERAL.—The terms of the members of the
HIT Policy Committee shall be for 3 years, except that
the Comptroller General shall designate staggered terms
for the members first appointed.
‘‘(B) VACANCIES.—Any member appointed to fill a
vacancy in the membership of the HIT Policy Committee
that occurs prior to the expiration of the term for which
the member’s predecessor was appointed shall be appointed
only for the remainder of that term. A member may serve
after the expiration of that member’s term until a successor
has been appointed. A vacancy in the HIT Policy Committee
shall be filled in the manner in which the original appointment was made.
‘‘(5) OUTSIDE INVOLVEMENT.—The HIT Policy Committee
shall ensure an opportunity for the participation in activities
of the Committee of outside advisors, including individuals
with expertise in the development of policies for the electronic
exchange and use of health information, including in the areas
of health information privacy and security.
‘‘(6) QUORUM.—A majority of the member of the HIT Policy
Committee shall constitute a quorum for purposes of voting,
but a lesser number of members may meet and hold hearings.
‘‘(7) FAILURE OF INITIAL APPOINTMENT.—If, on the date
that is 45 days after the date of enactment of this title, an
official authorized under paragraph (2) to appoint one or more
members of the HIT Policy Committee has not appointed the
full number of members that such paragraph authorizes such
official to appoint, the Secretary is authorized to appoint such
members.
‘‘(8) CONSIDERATION.—The National Coordinator shall
ensure that the relevant and available recommendations and
comments from the National Committee on Vital and Health
Statistics are considered in the development of policies.
‘‘(d) APPLICATION OF FACA.—The Federal Advisory Committee
Act (5 U.S.C. App.), other than section 14 of such Act, shall apply
to the HIT Policy Committee.
‘‘(e) PUBLICATION.—The Secretary shall provide for publication
in the Federal Register and the posting on the Internet website
of the Office of the National Coordinator for Health Information
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PUBLIC LAW 111–5—FEB. 17, 2009
Technology of all policy recommendations made by the HIT Policy
Committee under this section.
42 USC 300jj–13.
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‘‘SEC. 3003. HIT STANDARDS COMMITTEE.
‘‘(a) ESTABLISHMENT.—There is established a committee to be
known as the HIT Standards Committee to recommend to the
National Coordinator standards, implementation specifications, and
certification criteria for the electronic exchange and use of health
information for purposes of adoption under section 3004, consistent
with the implementation of the strategic plan described in section
3001(c)(3) and beginning with the areas listed in section
3002(b)(2)(B) in accordance with policies developed by the HIT
Policy Committee.
‘‘(b) DUTIES.—
‘‘(1) STANDARDS DEVELOPMENT.—
‘‘(A) IN GENERAL.—The HIT Standards Committee shall
recommend to the National Coordinator standards,
implementation specifications, and certification criteria
described in subsection (a) that have been developed, harmonized, or recognized by the HIT Standards Committee.
The HIT Standards Committee shall update such recommendations and make new recommendations as appropriate, including in response to a notification sent under
section 3004(a)(2)(B). Such recommendations shall be consistent with the latest recommendations made by the HIT
Policy Committee.
‘‘(B) HARMONIZATION.—The HIT Standards Committee
recognize harmonized or updated standards from an entity
or entities for the purpose of harmonizing or updating
standards and implementation specifications in order to
achieve uniform and consistent implementation of the
standards and implementation specifications.
‘‘(C) PILOT TESTING OF STANDARDS AND IMPLEMENTATION SPECIFICATIONS.—In the development, harmonization,
or recognition of standards and implementation specifications, the HIT Standards Committee shall, as appropriate,
provide for the testing of such standards and specifications
by the National Institute for Standards and Technology
under section 13201(a) of the Health Information Technology for Economic and Clinical Health Act.
‘‘(D) CONSISTENCY.—The standards, implementation
specifications, and certification criteria recommended under
this subsection shall be consistent with the standards for
information transactions and data elements adopted pursuant to section 1173 of the Social Security Act.
‘‘(2) FORUM.—The HIT Standards Committee shall serve
as a forum for the participation of a broad range of stakeholders
to provide input on the development, harmonization, and recognition of standards, implementation specifications, and certification criteria necessary for the development and adoption
of a nationwide health information technology infrastructure
that allows for the electronic use and exchange of health
information.
‘‘(3) SCHEDULE.—Not later than 90 days after the date
of the enactment of this title, the HIT Standards Committee
shall develop a schedule for the assessment of policy recommendations developed by the HIT Policy Committee under
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 239
section 3002. The HIT Standards Committee shall update such
schedule annually. The Secretary shall publish such schedule
in the Federal Register.
‘‘(4) PUBLIC INPUT.—The HIT Standards Committee shall
conduct open public meetings and develop a process to allow
for public comment on the schedule described in paragraph
(3) and recommendations described in this subsection. Under
such process comments shall be submitted in a timely manner
after the date of publication of a recommendation under this
subsection.
‘‘(5) CONSIDERATION.—The National Coordinator shall
ensure that the relevant and available recommendations and
comments from the National Committee on Vital and Health
Statistics are considered in the development of standards.
‘‘(c) MEMBERSHIP AND OPERATIONS.—
‘‘(1) IN GENERAL.—The National Coordinator shall take a
leading position in the establishment and operations of the
HIT Standards Committee.
‘‘(2) MEMBERSHIP.—The membership of the HIT Standards
Committee shall at least reflect providers, ancillary healthcare
workers, consumers, purchasers, health plans, technology vendors, researchers, relevant Federal agencies, and individuals
with technical expertise on health care quality, privacy and
security, and on the electronic exchange and use of health
information.
‘‘(3) PARTICIPATION.—The members of the HIT Standards
Committee appointed under this subsection shall represent a
balance among various sectors of the health care system so
that no single sector unduly influences the recommendations
of such Committee.
‘‘(4) OUTSIDE INVOLVEMENT.—The HIT Policy Committee
shall ensure an opportunity for the participation in activities
of the Committee of outside advisors, including individuals
with expertise in the development of standards for the electronic
exchange and use of health information, including in the areas
of health information privacy and security.
‘‘(5) BALANCE AMONG SECTORS.—In developing the procedures for conducting the activities of the HIT Standards Committee, the HIT Standards Committee shall act to ensure a
balance among various sectors of the health care system so
that no single sector unduly influences the actions of the HIT
Standards Committee.
‘‘(6) ASSISTANCE.—For the purposes of carrying out this
section, the Secretary may provide or ensure that financial
assistance is provided by the HIT Standards Committee to
defray in whole or in part any membership fees or dues charged
by such Committee to those consumer advocacy groups and
not for profit entities that work in the public interest as a
part of their mission.
‘‘(d) APPLICATION OF FACA.—The Federal Advisory Committee
Act (5 U.S.C. App.), other than section 14, shall apply to the
HIT Standards Committee.
‘‘(e) PUBLICATION.—The Secretary shall provide for publication
in the Federal Register and the posting on the Internet website
of the Office of the National Coordinator for Health Information
Technology of all recommendations made by the HIT Standards
Committee under this section.
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42 USC 300jj–14.
PUBLIC LAW 111–5—FEB. 17, 2009
‘‘SEC. 3004. PROCESS FOR ADOPTION OF ENDORSED RECOMMENDATIONS; ADOPTION OF INITIAL SET OF STANDARDS,
IMPLEMENTATION SPECIFICATIONS, AND CERTIFICATION CRITERIA.
‘‘(a) PROCESS
FOR
ADOPTION
OF
ENDORSED RECOMMENDA-
TIONS.—
‘‘(1) REVIEW OF ENDORSED STANDARDS, IMPLEMENTATION
SPECIFICATIONS, AND CERTIFICATION CRITERIA.—Not later than
Deadline.
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90 days after the date of receipt of standards, implementation
specifications, or certification criteria endorsed under section
3001(c), the Secretary, in consultation with representatives of
other relevant Federal agencies, shall jointly review such standards, implementation specifications, or certification criteria and
shall determine whether or not to propose adoption of such
standards, implementation specifications, or certification criteria.
‘‘(2) DETERMINATION TO ADOPT STANDARDS, IMPLEMENTATION SPECIFICATIONS, AND CERTIFICATION CRITERIA.—If the Secretary determines—
‘‘(A) to propose adoption of any grouping of such standards, implementation specifications, or certification criteria,
the Secretary shall, by regulation under section 553 of
title 5, United States Code, determine whether or not to
adopt such grouping of standards, implementation specifications, or certification criteria; or
‘‘(B) not to propose adoption of any grouping of standards, implementation specifications, or certification criteria,
the Secretary shall notify the National Coordinator and
the HIT Standards Committee in writing of such determination and the reasons for not proposing the adoption
of such recommendation.
‘‘(3) PUBLICATION.—The Secretary shall provide for publication in the Federal Register of all determinations made by
the Secretary under paragraph (1).
‘‘(b) ADOPTION OF STANDARDS, IMPLEMENTATION SPECIFICATIONS, AND CERTIFICATION CRITERIA.—
‘‘(1) IN GENERAL.—Not later than December 31, 2009, the
Secretary shall, through the rulemaking process consistent with
subsection (a)(2)(A), adopt an initial set of standards,
implementation specifications, and certification criteria for the
areas required for consideration under section 3002(b)(2)(B).
The rulemaking for the initial set of standards, implementation
specifications, and certification criteria may be issued on an
interim, final basis.
‘‘(2) APPLICATION OF CURRENT STANDARDS, IMPLEMENTATION
SPECIFICATIONS, AND CERTIFICATION CRITERIA.—The standards,
implementation specifications, and certification criteria adopted
before the date of the enactment of this title through the
process existing through the Office of the National Coordinator
for Health Information Technology may be applied towards
meeting the requirement of paragraph (1).
‘‘(3) SUBSEQUENT STANDARDS ACTIVITY.—The Secretary
shall adopt additional standards, implementation specifications,
and certification criteria as necessary and consistent with the
schedule published under section 3003(b)(2).
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‘‘SEC. 3005. APPLICATION AND USE OF ADOPTED STANDARDS AND
IMPLEMENTATION SPECIFICATIONS BY FEDERAL AGENCIES.
42 USC 300jj–15.
‘‘For requirements relating to the application and use by Federal agencies of the standards and implementation specifications
adopted under section 3004, see section 13111 of the Health
Information Technology for Economic and Clinical Health Act.
‘‘SEC. 3006. VOLUNTARY APPLICATION AND USE OF ADOPTED STANDARDS AND IMPLEMENTATION SPECIFICATIONS BY PRIVATE ENTITIES.
42 USC 300jj–16.
‘‘(a) IN GENERAL.—Except as provided under section 13112
of the HITECH Act, nothing in such Act or in the amendments
made by such Act shall be construed—
‘‘(1) to require a private entity to adopt or comply with
a standard or implementation specification adopted under section 3004; or
‘‘(2) to provide a Federal agency authority, other than the
authority such agency may have under other provisions of
law, to require a private entity to comply with such a standard
or implementation specification.
‘‘(b) RULE OF CONSTRUCTION.—Nothing in this subtitle shall
be construed to require that a private entity that enters into a
contract with the Federal Government apply or use the standards
and implementation specifications adopted under section 3004 with
respect to activities not related to the contract.
42 USC 300jj–17.
‘‘SEC. 3007. FEDERAL HEALTH INFORMATION TECHNOLOGY.
‘‘(a) IN GENERAL.—The National Coordinator shall support the
development and routine updating of qualified electronic health
record technology (as defined in section 3000) consistent with subsections (b) and (c) and make available such qualified electronic
health record technology unless the Secretary determines through
an assessment that the needs and demands of providers are being
substantially and adequately met through the marketplace.
‘‘(b) CERTIFICATION.—In making such electronic health record
technology publicly available, the National Coordinator shall ensure
that the qualified electronic health record technology described
in subsection (a) is certified under the program developed under
section 3001(c)(3) to be in compliance with applicable standards
adopted under section 3003(a).
‘‘(c) AUTHORIZATION TO CHARGE A NOMINAL FEE.—The National
Coordinator may impose a nominal fee for the adoption by a health
care provider of the health information technology system developed
or approved under subsection (a) and (b). Such fee shall take into
account the financial circumstances of smaller providers, low income
providers, and providers located in rural or other medically underserved areas.
‘‘(d) RULE OF CONSTRUCTION.—Nothing in this section shall
be construed to require that a private or government entity adopt
or use the technology provided under this section.
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‘‘SEC. 3008. TRANSITIONS.
42 USC 300jj–18.
‘‘(a) ONCHIT.—To the extent consistent with section 3001,
all functions, personnel, assets, liabilities, and administrative
actions applicable to the National Coordinator for Health Information Technology appointed under Executive Order No. 13335 or
the Office of such National Coordinator on the date before the
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PUBLIC LAW 111–5—FEB. 17, 2009
date of the enactment of this title shall be transferred to the
National Coordinator appointed under section 3001(a) and the Office
of such National Coordinator as of the date of the enactment of
this title.
‘‘(b) NATIONAL EHEALTH COLLABORATIVE.—Nothing in sections
3002 or 3003 or this subsection shall be construed as prohibiting
the AHIC Successor, Inc. doing business as the National eHealth
Collaborative from modifying its charter, duties, membership, and
any other structure or function required to be consistent with
section 3002 and 3003 so as to allow the Secretary to recognize
such AHIC Successor, Inc. as the HIT Policy Committee or the
HIT Standards Committee.
‘‘(c) CONSISTENCY OF RECOMMENDATIONS.—In carrying out section 3003(b)(1)(A), until recommendations are made by the HIT
Policy Committee, recommendations of the HIT Standards Committee shall be consistent with the most recent recommendations
made by such AHIC Successor, Inc.
42 USC 300jj–19.
‘‘SEC. 3009. MISCELLANEOUS PROVISIONS.
‘‘(a) RELATION TO HIPAA PRIVACY AND SECURITY LAW.—
‘‘(1) IN GENERAL.—With respect to the relation of this title
to HIPAA privacy and security law:
‘‘(A) This title may not be construed as having any
effect on the authorities of the Secretary under HIPAA
privacy and security law.
‘‘(B) The purposes of this title include ensuring that
the health information technology standards and
implementation specifications adopted under section 3004
take into account the requirements of HIPAA privacy and
security law.
‘‘(2) DEFINITION.—For purposes of this section, the term
‘HIPAA privacy and security law’ means—
‘‘(A) the provisions of part C of title XI of the Social
Security Act, section 264 of the Health Insurance Portability and Accountability Act of 1996, and subtitle D of
title IV of the Health Information Technology for Economic
and Clinical Health Act; and
‘‘(B) regulations under such provisions.
‘‘(b) FLEXIBILITY.—In administering the provisions of this title,
the Secretary shall have flexibility in applying the definition of
health care provider under section 3000(3), including the authority
to omit certain entities listed in such definition when applying
such definition under this title, where appropriate.’’.
SEC. 13102. TECHNICAL AMENDMENT.
Section 1171(5) of the Social Security Act (42 U.S.C. 1320d)
is amended by striking ‘‘or C’’ and inserting ‘‘C, or D’’.
PART 2—APPLICATION AND USE OF ADOPTED
HEALTH
INFORMATION
TECHNOLOGY
STANDARDS; REPORTS
42 USC 17901.
SEC. 13111. COORDINATION OF FEDERAL ACTIVITIES WITH ADOPTED
STANDARDS AND IMPLEMENTATION SPECIFICATIONS.
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(a) SPENDING ON HEALTH INFORMATION TECHNOLOGY SYSTEMS.—As each agency (as defined by the Director of the Office
of Management and Budget, in consultation with the Secretary
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of Health and Human Services) implements, acquires, or upgrades
health information technology systems used for the direct exchange
of individually identifiable health information between agencies
and with non-Federal entities, it shall utilize, where available,
health information technology systems and products that meet
standards and implementation specifications adopted under section
3004 of the Public Health Service Act, as added by section 13101.
(b) FEDERAL INFORMATION COLLECTION ACTIVITIES.—With
respect to a standard or implementation specification adopted under
section 3004 of the Public Health Service Act, as added by section
13101, the President shall take measures to ensure that Federal
activities involving the broad collection and submission of health
information are consistent with such standard or implementation
specification, respectively, within three years after the date of such
adoption.
(c) APPLICATION OF DEFINITIONS.—The definitions contained
in section 3000 of the Public Health Service Act, as added by
section 13101, shall apply for purposes of this part.
SEC. 13112. APPLICATION TO PRIVATE ENTITIES.
42 USC 17902.
Each agency (as defined in such Executive Order issued on
August 22, 2006, relating to promoting quality and efficient health
care in Federal government administered or sponsored health care
programs) shall require in contracts or agreements with health
care providers, health plans, or health insurance issuers that as
each provider, plan, or issuer implements, acquires, or upgrades
health information technology systems, it shall utilize, where available, health information technology systems and products that meet
standards and implementation specifications adopted under section
3004 of the Public Health Service Act, as added by section 13101.
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SEC. 13113. STUDY AND REPORTS.
42 USC 17903.
(a) REPORT ON ADOPTION OF NATIONWIDE SYSTEM.—Not later
than 2 years after the date of the enactment of this Act and
annually thereafter, the Secretary of Health and Human Services
shall submit to the appropriate committees of jurisdiction of the
House of Representatives and the Senate a report that—
(1) describes the specific actions that have been taken
by the Federal Government and private entities to facilitate
the adoption of a nationwide system for the electronic use
and exchange of health information;
(2) describes barriers to the adoption of such a nationwide
system; and
(3) contains recommendations to achieve full implementation of such a nationwide system.
(b) REIMBURSEMENT INCENTIVE STUDY AND REPORT.—
(1) STUDY.—The Secretary of Health and Human Services
shall carry out, or contract with a private entity to carry out,
a study that examines methods to create efficient reimbursement incentives for improving health care quality in Federally
qualified health centers, rural health clinics, and free clinics.
(2) REPORT.—Not later than 2 years after the date of the
enactment of this Act, the Secretary of Health and Human
Services shall submit to the appropriate committees of jurisdiction of the House of Representatives and the Senate a report
on the study carried out under paragraph (1).
(c) AGING SERVICES TECHNOLOGY STUDY AND REPORT.—
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PUBLIC LAW 111–5—FEB. 17, 2009
(1) IN GENERAL.—The Secretary of Health and Human
Services shall carry out, or contract with a private entity to
carry out, a study of matters relating to the potential use
of new aging services technology to assist seniors, individuals
with disabilities, and their caregivers throughout the aging
process.
(2) MATTERS TO BE STUDIED.—The study under paragraph
(1) shall include—
(A) an evaluation of—
(i) methods for identifying current, emerging, and
future health technology that can be used to meet
the needs of seniors and individuals with disabilities
and their caregivers across all aging services settings,
as specified by the Secretary;
(ii) methods for fostering scientific innovation with
respect to aging services technology within the business
and academic communities; and
(iii) developments in aging services technology in
other countries that may be applied in the United
States; and
(B) identification of—
(i) barriers to innovation in aging services technology and devising strategies for removing such barriers; and
(ii) barriers to the adoption of aging services technology by health care providers and consumers and
devising strategies to removing such barriers.
(3) REPORT.—Not later than 24 months after the date of
the enactment of this Act, the Secretary shall submit to the
appropriate committees of jurisdiction of the House of Representatives and of the Senate a report on the study carried
out under paragraph (1).
(4) DEFINITIONS.—For purposes of this subsection:
(A) AGING SERVICES TECHNOLOGY.—The term ‘‘aging
services technology’’ means health technology that meets
the health care needs of seniors, individuals with disabilities, and the caregivers of such seniors and individuals.
(B) SENIOR.—The term ‘‘senior’’ has such meaning as
specified by the Secretary.
Contracts.
Subtitle B—Testing of Health Information
Technology
42 USC 17911.
SEC. 13201. NATIONAL INSTITUTE FOR STANDARDS AND TECHNOLOGY
TESTING.
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(a) PILOT TESTING OF STANDARDS AND IMPLEMENTATION SPECIFICATIONS.—In coordination with the HIT Standards Committee
established under section 3003 of the Public Health Service Act,
as added by section 13101, with respect to the development of
standards and implementation specifications under such section,
the Director of the National Institute for Standards and Technology
shall test such standards and implementation specifications, as
appropriate, in order to assure the efficient implementation and
use of such standards and implementation specifications.
(b) VOLUNTARY TESTING PROGRAM.—In coordination with the
HIT Standards Committee established under section 3003 of the
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Public Health Service Act, as added by section 13101, with respect
to the development of standards and implementation specifications
under such section, the Director of the National Institute of Standards and Technology shall support the establishment of a conformance testing infrastructure, including the development of technical
test beds. The development of this conformance testing infrastructure may include a program to accredit independent, non-Federal
laboratories to perform testing.
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SEC. 13202. RESEARCH AND DEVELOPMENT PROGRAMS.
42 USC 17912.
(a) HEALTH CARE INFORMATION ENTERPRISE INTEGRATION
RESEARCH CENTERS.—
(1) IN GENERAL.—The Director of the National Institute
of Standards and Technology, in consultation with the Director
of the National Science Foundation and other appropriate Federal agencies, shall establish a program of assistance to institutions of higher education (or consortia thereof which may
include nonprofit entities and Federal Government laboratories)
to establish multidisciplinary Centers for Health Care Information Enterprise Integration.
(2) REVIEW; COMPETITION.—Grants shall be awarded under
this subsection on a merit-reviewed, competitive basis.
(3) PURPOSE.—The purposes of the Centers described in
paragraph (1) shall be—
(A) to generate innovative approaches to health care
information enterprise integration by conducting cuttingedge, multidisciplinary research on the systems challenges
to health care delivery; and
(B) the development and use of health information
technologies and other complementary fields.
(4) RESEARCH AREAS.—Research areas may include—
(A) interfaces between human information and communications technology systems;
(B) voice-recognition systems;
(C) software that improves interoperability and
connectivity among health information systems;
(D) software dependability in systems critical to health
care delivery;
(E) measurement of the impact of information technologies on the quality and productivity of health care;
(F) health information enterprise management;
(G) health information technology security and integrity; and
(H) relevant health information technology to reduce
medical errors.
(5) APPLICATIONS.—An institution of higher education (or
a consortium thereof) seeking funding under this subsection
shall submit an application to the Director of the National
Institute of Standards and Technology at such time, in such
manner, and containing such information as the Director may
require. The application shall include, at a minimum, a description of—
(A) the research projects that will be undertaken by
the Center established pursuant to assistance under paragraph (1) and the respective contributions of the participating entities;
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(B) how the Center will promote active collaboration
among scientists and engineers from different disciplines,
such as information technology, biologic sciences, management, social sciences, and other appropriate disciplines;
(C) technology transfer activities to demonstrate and
diffuse the research results, technologies, and knowledge;
and
(D) how the Center will contribute to the education
and training of researchers and other professionals in fields
relevant to health information enterprise integration.
(b) NATIONAL INFORMATION TECHNOLOGY RESEARCH AND
DEVELOPMENT PROGRAM.—The National High-Performance Computing Program established by section 101 of the High-Performance
Computing Act of 1991 (15 U.S.C. 5511) shall include Federal
research and development programs related to health information
technology.
Subtitle C—Grants and Loans Funding
SEC. 13301. GRANT, LOAN, AND DEMONSTRATION PROGRAMS.
Title XXX of the Public Health Service Act, as added by section
13101, is amended by adding at the end the following new subtitle:
‘‘Subtitle B—Incentives for the Use of
Health Information Technology
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42 USC 300jj–31.
‘‘SEC. 3011. IMMEDIATE FUNDING TO STRENGTHEN THE HEALTH
INFORMATION TECHNOLOGY INFRASTRUCTURE.
‘‘(a) IN GENERAL.—The Secretary shall, using amounts appropriated under section 3018, invest in the infrastructure necessary
to allow for and promote the electronic exchange and use of health
information for each individual in the United States consistent
with the goals outlined in the strategic plan developed by the
National Coordinator (and as available) under section 3001. The
Secretary shall invest funds through the different agencies with
expertise in such goals, such as the Office of the National Coordinator for Health Information Technology, the Health Resources
and Services Administration, the Agency for Healthcare Research
and Quality, the Centers of Medicare & Medicaid Services, the
Centers for Disease Control and Prevention, and the Indian Health
Service to support the following:
‘‘(1) Health information technology architecture that will
support the nationwide electronic exchange and use of health
information in a secure, private, and accurate manner,
including connecting health information exchanges, and which
may include updating and implementing the infrastructure necessary within different agencies of the Department of Health
and Human Services to support the electronic use and exchange
of health information.
‘‘(2) Development and adoption of appropriate certified electronic health records for categories of health care providers
not eligible for support under title XVIII or XIX of the Social
Security Act for the adoption of such records.
‘‘(3) Training on and dissemination of information on best
practices to integrate health information technology, including
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electronic health records, into a provider’s delivery of care,
consistent with best practices learned from the Health Information Technology Research Center developed under section
3012(b), including community health centers receiving assistance under section 330, covered entities under section 340B,
and providers participating in one or more of the programs
under titles XVIII, XIX, and XXI of the Social Security Act
(relating to Medicare, Medicaid, and the State Children’s Health
Insurance Program).
‘‘(4) Infrastructure and tools for the promotion of telemedicine, including coordination among Federal agencies in the
promotion of telemedicine.
‘‘(5) Promotion of the interoperability of clinical data repositories or registries.
‘‘(6) Promotion of technologies and best practices that
enhance the protection of health information by all holders
of individually identifiable health information.
‘‘(7) Improvement and expansion of the use of health
information technology by public health departments.
‘‘(b) COORDINATION.—The Secretary shall ensure funds under
this section are used in a coordinated manner with other health
information promotion activities.
‘‘(c) ADDITIONAL USE OF FUNDS.—In addition to using funds
as provided in subsection (a), the Secretary may use amounts appropriated under section 3018 to carry out health information technology activities that are provided for under laws in effect on
the date of the enactment of this title.
‘‘(d) STANDARDS FOR ACQUISITION OF HEALTH INFORMATION
TECHNOLOGY.—To the greatest extent practicable, the Secretary
shall ensure that where funds are expended under this section
for the acquisition of health information technology, such funds
shall be used to acquire health information technology that meets
applicable standards adopted under section 3004. Where it is not
practicable to expend funds on health information technology that
meets such applicable standards, the Secretary shall ensure that
such health information technology meets applicable standards
otherwise adopted by the Secretary.
‘‘SEC. 3012. HEALTH INFORMATION TECHNOLOGY IMPLEMENTATION
ASSISTANCE.
‘‘(a) HEALTH INFORMATION TECHNOLOGY EXTENSION PROassist health care providers to adopt, implement, and
effectively use certified EHR technology that allows for the electronic exchange and use of health information, the Secretary, acting
through the Office of the National Coordinator, shall establish
a health information technology extension program to provide
health information technology assistance services to be carried out
through the Department of Health and Human Services. The
National Coordinator shall consult with other Federal agencies
with demonstrated experience and expertise in information technology services, such as the National Institute of Standards and
Technology, in developing and implementing this program.
‘‘(b) HEALTH INFORMATION TECHNOLOGY RESEARCH CENTER.—
‘‘(1) IN GENERAL.—The Secretary shall create a Health
Information Technology Research Center (in this section
referred to as the ‘Center’) to provide technical assistance and
develop or recognize best practices to support and accelerate
42 USC 300jj–32.
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GRAM.—To
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Establishment.
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PUBLIC LAW 111–5—FEB. 17, 2009
efforts to adopt, implement, and effectively utilize health
information technology that allows for the electronic exchange
and use of information in compliance with standards,
implementation specifications, and certification criteria adopted
under section 3004.
‘‘(2) INPUT.—The Center shall incorporate input from—
‘‘(A) other Federal agencies with demonstrated experience and expertise in information technology services such
as the National Institute of Standards and Technology;
‘‘(B) users of health information technology, such as
providers and their support and clerical staff and others
involved in the care and care coordination of patients,
from the health care and health information technology
industry; and
‘‘(C) others as appropriate.
‘‘(3) PURPOSES.—The purposes of the Center are to—
‘‘(A) provide a forum for the exchange of knowledge
and experience;
‘‘(B) accelerate the transfer of lessons learned from
existing public and private sector initiatives, including
those currently receiving Federal financial support;
‘‘(C) assemble, analyze, and widely disseminate evidence and experience related to the adoption, implementation, and effective use of health information technology
that allows for the electronic exchange and use of information including through the regional centers described in
subsection (c);
‘‘(D) provide technical assistance for the establishment
and evaluation of regional and local health information
networks to facilitate the electronic exchange of information
across health care settings and improve the quality of
health care;
‘‘(E) provide technical assistance for the development
and dissemination of solutions to barriers to the exchange
of electronic health information; and
‘‘(F) learn about effective strategies to adopt and utilize
health information technology in medically underserved
communities.
‘‘(c) HEALTH INFORMATION TECHNOLOGY REGIONAL EXTENSION
CENTERS.—
‘‘(1) IN GENERAL.—The Secretary shall provide assistance
for the creation and support of regional centers (in this subsection referred to as ‘regional centers’) to provide technical
assistance and disseminate best practices and other information
learned from the Center to support and accelerate efforts to
adopt, implement, and effectively utilize health information
technology that allows for the electronic exchange and use
of information in compliance with standards, implementation
specifications, and certification criteria adopted under section
3004. Activities conducted under this subsection shall be consistent with the strategic plan developed by the National
Coordinator, (and, as available) under section 3001.
‘‘(2) AFFILIATION.—Regional centers shall be affiliated with
any United States-based nonprofit institution or organization,
or group thereof, that applies and is awarded financial assistance under this section. Individual awards shall be decided
on the basis of merit.
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‘‘(3) OBJECTIVE.—The objective of the regional centers is
to enhance and promote the adoption of health information
technology through—
‘‘(A) assistance with the implementation, effective use,
upgrading, and ongoing maintenance of health information
technology, including electronic health records, to
healthcare providers nationwide;
‘‘(B) broad participation of individuals from industry,
universities, and State governments;
‘‘(C) active dissemination of best practices and research
on the implementation, effective use, upgrading, and
ongoing maintenance of health information technology,
including electronic health records, to health care providers
in order to improve the quality of healthcare and protect
the privacy and security of health information;
‘‘(D) participation, to the extent practicable, in health
information exchanges;
‘‘(E) utilization, when appropriate, of the expertise and
capability that exists in Federal agencies other than the
Department; and
‘‘(F) integration of health information technology,
including electronic health records, into the initial and
ongoing training of health professionals and others in the
healthcare industry that would be instrumental to
improving the quality of healthcare through the smooth
and accurate electronic use and exchange of health information.
‘‘(4) REGIONAL ASSISTANCE.—Each regional center shall aim
to provide assistance and education to all providers in a region,
but shall prioritize any direct assistance first to the following:
‘‘(A) Public or not-for-profit hospitals or critical access
hospitals.
‘‘(B) Federally qualified health centers (as defined in
section 1861(aa)(4) of the Social Security Act).
‘‘(C) Entities that are located in rural and other areas
that serve uninsured, underinsured, and medically underserved individuals (regardless of whether such area is
urban or rural).
‘‘(D) Individual or small group practices (or a consortium thereof) that are primarily focused on primary care.
‘‘(5) FINANCIAL SUPPORT.—The Secretary may provide
financial support to any regional center created under this
subsection for a period not to exceed four years. The Secretary
may not provide more than 50 percent of the capital and
annual operating and maintenance funds required to create
and maintain such a center, except in an instance of national
economic conditions which would render this cost-share requirement detrimental to the program and upon notification to Congress as to the justification to waive the cost-share requirement.
‘‘(6) NOTICE OF PROGRAM DESCRIPTION AND AVAILABILITY
OF FUNDS.—The Secretary shall publish in the Federal Register,
not later than 90 days after the date of the enactment of
this title, a draft description of the program for establishing
regional centers under this subsection. Such description shall
include the following:
‘‘(A) A detailed explanation of the program and the
programs goals.
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Deadline.
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‘‘(B) Procedures to be followed by the applicants.
‘‘(C) Criteria for determining qualified applicants.
‘‘(D) Maximum support levels expected to be available
to centers under the program.
‘‘(7) APPLICATION REVIEW.—The Secretary shall subject each
application under this subsection to merit review. In making
a decision whether to approve such application and provide
financial support, the Secretary shall consider at a minimum
the merits of the application, including those portions of the
application regarding—
‘‘(A) the ability of the applicant to provide assistance
under this subsection and utilization of health information
technology appropriate to the needs of particular categories
of health care providers;
‘‘(B) the types of service to be provided to health care
providers;
‘‘(C) geographical diversity and extent of service area;
and
‘‘(D) the percentage of funding and amount of in-kind
commitment from other sources.
‘‘(8) BIENNIAL EVALUATION.—Each regional center which
receives financial assistance under this subsection shall be
evaluated biennially by an evaluation panel appointed by the
Secretary. Each evaluation panel shall be composed of private
experts, none of whom shall be connected with the center
involved, and of Federal officials. Each evaluation panel shall
measure the involved center’s performance against the objective
specified in paragraph (3). The Secretary shall not continue
to provide funding to a regional center unless its evaluation
is overall positive.
‘‘(9) CONTINUING SUPPORT.—After the second year of assistance under this subsection, a regional center may receive additional support under this subsection if it has received positive
evaluations and a finding by the Secretary that continuation
of Federal funding to the center was in the best interest of
provision of health information technology extension services.
Procedures.
Criteria.
42 USC 300jj–33.
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PUBLIC LAW 111–5—FEB. 17, 2009
‘‘SEC. 3013. STATE GRANTS TO PROMOTE HEALTH INFORMATION TECHNOLOGY.
‘‘(a) IN GENERAL.—The Secretary, acting through the National
Coordinator, shall establish a program in accordance with this
section to facilitate and expand the electronic movement and use
of health information among organizations according to nationally
recognized standards.
‘‘(b) PLANNING GRANTS.—The Secretary may award a grant
to a State or qualified State-designated entity (as described in
subsection (f)) that submits an application to the Secretary at
such time, in such manner, and containing such information as
the Secretary may specify, for the purpose of planning activities
described in subsection (d).
‘‘(c) IMPLEMENTATION GRANTS.—The Secretary may award a
grant to a State or qualified State designated entity that—
‘‘(1) has submitted, and the Secretary has approved, a
plan described in subsection (e) (regardless of whether such
plan was prepared using amounts awarded under subsection
(b); and
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‘‘(2) submits an application at such time, in such manner,
and containing such information as the Secretary may specify.
‘‘(d) USE OF FUNDS.—Amounts received under a grant under
subsection (c) shall be used to conduct activities to facilitate and
expand the electronic movement and use of health information
among organizations according to nationally recognized standards
through activities that include—
‘‘(1) enhancing broad and varied participation in the authorized and secure nationwide electronic use and exchange of
health information;
‘‘(2) identifying State or local resources available towards
a nationwide effort to promote health information technology;
‘‘(3) complementing other Federal grants, programs, and
efforts towards the promotion of health information technology;
‘‘(4) providing technical assistance for the development and
dissemination of solutions to barriers to the exchange of electronic health information;
‘‘(5) promoting effective strategies to adopt and utilize
health information technology in medically underserved
communities;
‘‘(6) assisting patients in utilizing health information technology;
‘‘(7) encouraging clinicians to work with Health Information
Technology Regional Extension Centers as described in section
3012, to the extent they are available and valuable;
‘‘(8) supporting public health agencies’ authorized use of
and access to electronic health information;
‘‘(9) promoting the use of electronic health records for
quality improvement including through quality measures
reporting; and
‘‘(10) such other activities as the Secretary may specify.
‘‘(e) PLAN.—
‘‘(1) IN GENERAL.—A plan described in this subsection is
a plan that describes the activities to be carried out by a
State or by the qualified State-designated entity within such
State to facilitate and expand the electronic movement and
use of health information among organizations according to
nationally recognized standards and implementation specifications.
‘‘(2) REQUIRED ELEMENTS.—A plan described in paragraph
(1) shall—
‘‘(A) be pursued in the public interest;
‘‘(B) be consistent with the strategic plan developed
by the National Coordinator, (and, as available) under section 3001;
‘‘(C) include a description of the ways the State or
qualified State-designated entity will carry out the activities described in subsection (b); and
‘‘(D) contain such elements as the Secretary may
require.
‘‘(f) QUALIFIED STATE-DESIGNATED ENTITY.—For purposes of
this section, to be a qualified State-designated entity, with respect
to a State, an entity shall—
‘‘(1) be designated by the State as eligible to receive awards
under this section;
‘‘(2) be a not-for-profit entity with broad stakeholder representation on its governing board;
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‘‘(3) demonstrate that one of its principal goals is to use
information technology to improve health care quality and efficiency through the authorized and secure electronic exchange
and use of health information;
‘‘(4) adopt nondiscrimination and conflict of interest policies
that demonstrate a commitment to open, fair, and nondiscriminatory participation by stakeholders; and
‘‘(5) conform to such other requirements as the Secretary
may establish.
‘‘(g) REQUIRED CONSULTATION.—In carrying out activities
described in subsections (b) and (c), a State or qualified Statedesignated entity shall consult with and consider the recommendations of—
‘‘(1) health care providers (including providers that provide
services to low income and underserved populations);
‘‘(2) health plans;
‘‘(3) patient or consumer organizations that represent the
population to be served;
‘‘(4) health information technology vendors;
‘‘(5) health care purchasers and employers;
‘‘(6) public health agencies;
‘‘(7) health professions schools, universities and colleges;
‘‘(8) clinical researchers;
‘‘(9) other users of health information technology such as
the support and clerical staff of providers and others involved
in the care and care coordination of patients; and
‘‘(10) such other entities, as may be determined appropriate
by the Secretary.
‘‘(h) CONTINUOUS IMPROVEMENT.—The Secretary shall annually
evaluate the activities conducted under this section and shall, in
awarding grants under this section, implement the lessons learned
from such evaluation in a manner so that awards made subsequent
to each such evaluation are made in a manner that, in the determination of the Secretary, will lead towards the greatest improvement in quality of care, decrease in costs, and the most effective
authorized and secure electronic exchange of health information.
‘‘(i) REQUIRED MATCH.—
‘‘(1) IN GENERAL.—For a fiscal year (beginning with fiscal
year 2011), the Secretary may not make a grant under this
section to a State unless the State agrees to make available
non-Federal contributions (which may include in-kind contributions) toward the costs of a grant awarded under subsection
(c) in an amount equal to—
‘‘(A) for fiscal year 2011, not less than $1 for each
$10 of Federal funds provided under the grant;
‘‘(B) for fiscal year 2012, not less than $1 for each
$7 of Federal funds provided under the grant; and
‘‘(C) for fiscal year 2013 and each subsequent fiscal
year, not less than $1 for each $3 of Federal funds provided
under the grant.
‘‘(2) AUTHORITY TO REQUIRE STATE MATCH FOR FISCAL YEARS
BEFORE FISCAL YEAR 2011.—For any fiscal year during the grant
program under this section before fiscal year 2011, the Secretary may determine the extent to which there shall be
required a non-Federal contribution from a State receiving
a grant under this section.
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‘‘SEC. 3014. COMPETITIVE GRANTS TO STATES AND INDIAN TRIBES
FOR THE DEVELOPMENT OF LOAN PROGRAMS TO FACILITATE THE WIDESPREAD ADOPTION OF CERTIFIED EHR
TECHNOLOGY.
‘‘(a) IN GENERAL.—The National Coordinator may award
competitive grants to eligible entities for the establishment of programs for loans to health care providers to conduct the activities
described in subsection (e).
‘‘(b) ELIGIBLE ENTITY DEFINED.—For purposes of this subsection, the term ‘eligible entity’ means a State or Indian tribe
(as defined in the Indian Self-Determination and Education Assistance Act) that—
‘‘(1) submits to the National Coordinator an application
at such time, in such manner, and containing such information
as the National Coordinator may require;
‘‘(2) submits to the National Coordinator a strategic plan
in accordance with subsection (d) and provides to the National
Coordinator assurances that the entity will update such plan
annually in accordance with such subsection;
‘‘(3) provides assurances to the National Coordinator that
the entity will establish a Loan Fund in accordance with subsection (c);
‘‘(4) provides assurances to the National Coordinator that
the entity will not provide a loan from the Loan Fund to
a health care provider unless the provider agrees to—
‘‘(A) submit reports on quality measures adopted by
the Federal Government (by not later than 90 days after
the date on which such measures are adopted), to—
‘‘(i) the Administrator of the Centers for Medicare
& Medicaid Services (or his or her designee), in the
case of an entity participating in the Medicare program
under title XVIII of the Social Security Act or the
Medicaid program under title XIX of such Act; or
‘‘(ii) the Secretary in the case of other entities;
‘‘(B) demonstrate to the satisfaction of the Secretary
(through criteria established by the Secretary) that any
certified EHR technology purchased, improved, or otherwise
financially supported under a loan under this section is
used to exchange health information in a manner that,
in accordance with law and standards (as adopted under
section 3004) applicable to the exchange of information,
improves the quality of health care, such as promoting
care coordination; and
‘‘(C) comply with such other requirements as the entity
or the Secretary may require;
‘‘(D) include a plan on how health care providers
involved intend to maintain and support the certified EHR
technology over time;
‘‘(E) include a plan on how the health care providers
involved intend to maintain and support the certified EHR
technology that would be purchased with such loan,
including the type of resources expected to be involved
and any such other information as the State or Indian
Tribe, respectively, may require; and
‘‘(5) agrees to provide matching funds in accordance with
subsection (h).
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Reports.
Deadline.
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123 STAT. 254
PUBLIC LAW 111–5—FEB. 17, 2009
‘‘(c) ESTABLISHMENT OF FUND.—For purposes of subsection
(b)(3), an eligible entity shall establish a certified EHR technology
loan fund (referred to in this subsection as a ‘Loan Fund’) and
comply with the other requirements contained in this section. A
grant to an eligible entity under this section shall be deposited
in the Loan Fund established by the eligible entity. No funds
authorized by other provisions of this title to be used for other
purposes specified in this title shall be deposited in any Loan
Fund.
‘‘(d) STRATEGIC PLAN.—
‘‘(1) IN GENERAL.—For purposes of subsection (b)(2), a strategic plan of an eligible entity under this subsection shall
identify the intended uses of amounts available to the Loan
Fund of such entity.
‘‘(2) CONTENTS.—A strategic plan under paragraph (1), with
respect to a Loan Fund of an eligible entity, shall include
for a year the following:
‘‘(A) A list of the projects to be assisted through the
Loan Fund during such year.
‘‘(B) A description of the criteria and methods established for the distribution of funds from the Loan Fund
during the year.
‘‘(C) A description of the financial status of the Loan
Fund as of the date of submission of the plan.
‘‘(D) The short-term and long-term goals of the Loan
Fund.
‘‘(e) USE OF FUNDS.—Amounts deposited in a Loan Fund,
including loan repayments and interest earned on such amounts,
shall be used only for awarding loans or loan guarantees, making
reimbursements described in subsection (g)(4)(A), or as a source
of reserve and security for leveraged loans, the proceeds of which
are deposited in the Loan Fund established under subsection (c).
Loans under this section may be used by a health care provider
to—
‘‘(1) facilitate the purchase of certified EHR technology;
‘‘(2) enhance the utilization of certified EHR technology
(which may include costs associated with upgrading health
information technology so that it meets criteria necessary to
be a certified EHR technology);
‘‘(3) train personnel in the use of such technology; or
‘‘(4) improve the secure electronic exchange of health
information.
‘‘(f) TYPES OF ASSISTANCE.—Except as otherwise limited by
applicable State law, amounts deposited into a Loan Fund under
this section may only be used for the following:
‘‘(1) To award loans that comply with the following:
‘‘(A) The interest rate for each loan shall not exceed
the market interest rate.
‘‘(B) The principal and interest payments on each loan
shall commence not later than 1 year after the date the
loan was awarded, and each loan shall be fully amortized
not later than 10 years after the date of the loan.
‘‘(C) The Loan Fund shall be credited with all payments
of principal and interest on each loan awarded from the
Loan Fund.
‘‘(2) To guarantee, or purchase insurance for, a local obligation (all of the proceeds of which finance a project eligible
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 255
for assistance under this subsection) if the guarantee or purchase would improve credit market access or reduce the interest
rate applicable to the obligation involved.
‘‘(3) As a source of revenue or security for the payment
of principal and interest on revenue or general obligation bonds
issued by the eligible entity if the proceeds of the sale of
the bonds will be deposited into the Loan Fund.
‘‘(4) To earn interest on the amounts deposited into the
Loan Fund.
‘‘(5) To make reimbursements described in subsection
(g)(4)(A).
‘‘(g) ADMINISTRATION OF LOAN FUNDS.—
‘‘(1) COMBINED FINANCIAL ADMINISTRATION.—An eligible
entity may (as a convenience and to avoid unnecessary administrative costs) combine, in accordance with applicable State law,
the financial administration of a Loan Fund established under
this subsection with the financial administration of any other
revolving fund established by the entity if otherwise not prohibited by the law under which the Loan Fund was established.
‘‘(2) COST OF ADMINISTERING FUND.—Each eligible entity
may annually use not to exceed 4 percent of the funds provided
to the entity under a grant under this section to pay the
reasonable costs of the administration of the programs under
this section, including the recovery of reasonable costs expended
to establish a Loan Fund which are incurred after the date
of the enactment of this title.
‘‘(3) GUIDANCE AND REGULATIONS.—The National Coordinator shall publish guidance and promulgate regulations as
may be necessary to carry out the provisions of this section,
including—
‘‘(A) provisions to ensure that each eligible entity commits and expends funds allotted to the entity under this
section as efficiently as possible in accordance with this
title and applicable State laws; and
‘‘(B) guidance to prevent waste, fraud, and abuse.
‘‘(4) PRIVATE SECTOR CONTRIBUTIONS.—
‘‘(A) IN GENERAL.—A Loan Fund established under this
section may accept contributions from private sector entities, except that such entities may not specify the recipient
or recipients of any loan issued under this subsection.
An eligible entity may agree to reimburse a private sector
entity for any contribution made under this subparagraph,
except that the amount of such reimbursement may not
be greater than the principal amount of the contribution
made.
‘‘(B) AVAILABILITY OF INFORMATION.—An eligible entity
shall make publicly available the identity of, and amount
contributed by, any private sector entity under subparagraph (A) and may issue letters of commendation or make
other awards (that have no financial value) to any such
entity.
‘‘(h) MATCHING REQUIREMENTS.—
‘‘(1) IN GENERAL.—The National Coordinator may not make
a grant under subsection (a) to an eligible entity unless the
entity agrees to make available (directly or through donations
from public or private entities) non-Federal contributions in
cash to the costs of carrying out the activities for which the
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PUBLIC LAW 111–5—FEB. 17, 2009
grant is awarded in an amount equal to not less than $1
for each $5 of Federal funds provided under the grant.
‘‘(2) DETERMINATION OF AMOUNT OF NON-FEDERAL CONTRIBUTION.—In determining the amount of non-Federal contributions that an eligible entity has provided pursuant to
subparagraph (A), the National Coordinator may not include
any amounts provided to the entity by the Federal Government.
‘‘(i) EFFECTIVE DATE.—The Secretary may not make an award
under this section prior to January 1, 2010.
42 USC 300jj–35.
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Strategic plan.
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‘‘SEC. 3015. DEMONSTRATION PROGRAM TO INTEGRATE INFORMATION
TECHNOLOGY INTO CLINICAL EDUCATION.
‘‘(a) IN GENERAL.—The Secretary may award grants under this
section to carry out demonstration projects to develop academic
curricula integrating certified EHR technology in the clinical education of health professionals. Such awards shall be made on a
competitive basis and pursuant to peer review.
‘‘(b) ELIGIBILITY.—To be eligible to receive a grant under subsection (a), an entity shall—
‘‘(1) submit to the Secretary an application at such time,
in such manner, and containing such information as the Secretary may require;
‘‘(2) submit to the Secretary a strategic plan for integrating
certified EHR technology in the clinical education of health
professionals to reduce medical errors, increase access to
prevention, reduce chronic diseases, and enhance health care
quality;
‘‘(3) be—
‘‘(A) a school of medicine, osteopathic medicine, dentistry, or pharmacy, a graduate program in behavioral or
mental health, or any other graduate health professions
school;
‘‘(B) a graduate school of nursing or physician assistant
studies;
‘‘(C) a consortium of two or more schools described
in subparagraph (A) or (B); or
‘‘(D) an institution with a graduate medical education
program in medicine, osteopathic medicine, dentistry, pharmacy, nursing, or physician assistance studies;
‘‘(4) provide for the collection of data regarding the effectiveness of the demonstration project to be funded under the grant
in improving the safety of patients, the efficiency of health
care delivery, and in increasing the likelihood that graduates
of the grantee will adopt and incorporate certified EHR technology, in the delivery of health care services; and
‘‘(5) provide matching funds in accordance with subsection
(d).
‘‘(c) USE OF FUNDS.—
‘‘(1) IN GENERAL.—With respect to a grant under subsection
(a), an eligible entity shall—
‘‘(A) use grant funds in collaboration with 2 or more
disciplines; and
‘‘(B) use grant funds to integrate certified EHR technology into community-based clinical education.
‘‘(2) LIMITATION.—An eligible entity shall not use amounts
received under a grant under subsection (a) to purchase hardware, software, or services.
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‘‘(d) FINANCIAL SUPPORT.—The Secretary may not provide more
than 50 percent of the costs of any activity for which assistance
is provided under subsection (a), except in an instance of national
economic conditions which would render the cost-share requirement
under this subsection detrimental to the program and upon notification to Congress as to the justification to waive the cost-share
requirement.
‘‘(e) EVALUATION.—The Secretary shall take such action as may
be necessary to evaluate the projects funded under this section
and publish, make available, and disseminate the results of such
evaluations on as wide a basis as is practicable.
‘‘(f) REPORTS.—Not later than 1 year after the date of enactment
of this title, and annually thereafter, the Secretary shall submit
to the Committee on Health, Education, Labor, and Pensions and
the Committee on Finance of the Senate, and the Committee on
Energy and Commerce of the House of Representatives a report
that—
‘‘(1) describes the specific projects established under this
section; and
‘‘(2) contains recommendations for Congress based on the
evaluation conducted under subsection (e).
‘‘SEC. 3016. INFORMATION TECHNOLOGY PROFESSIONALS IN HEALTH
CARE.
Publication.
42 USC 300jj–36.
‘‘(a) IN GENERAL.—The Secretary, in consultation with the
Director of the National Science Foundation, shall provide assistance to institutions of higher education (or consortia thereof) to
establish or expand medical health informatics education programs,
including certification, undergraduate, and masters degree programs, for both health care and information technology students
to ensure the rapid and effective utilization and development of
health information technologies (in the United States health care
infrastructure).
‘‘(b) ACTIVITIES.—Activities for which assistance may be provided under subsection (a) may include the following:
‘‘(1) Developing and revising curricula in medical health
informatics and related disciplines.
‘‘(2) Recruiting and retaining students to the program
involved.
‘‘(3) Acquiring equipment necessary for student instruction
in these programs, including the installation of testbed networks for student use.
‘‘(4) Establishing or enhancing bridge programs in the
health informatics fields between community colleges and
universities.
‘‘(c) PRIORITY.—In providing assistance under subsection (a),
the Secretary shall give preference to the following:
‘‘(1) Existing education and training programs.
‘‘(2) Programs designed to be completed in less than six
months.
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‘‘SEC. 3017. GENERAL GRANT AND LOAN PROVISIONS.
42 USC 300jj–37.
‘‘(a) REPORTS.—The Secretary may require that an entity
receiving assistance under this subtitle shall submit to the Secretary, not later than the date that is 1 year after the date of
receipt of such assistance, a report that includes—
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‘‘(1) an analysis of the effectiveness of the activities for
which the entity receives such assistance, as compared to the
goals for such activities; and
‘‘(2) an analysis of the impact of the project on health
care quality and safety.
‘‘(b) REQUIREMENT TO IMPROVE QUALITY OF CARE AND DECREASE
IN COSTS.—The National Coordinator shall annually evaluate the
activities conducted under this subtitle and shall, in awarding
grants, implement the lessons learned from such evaluation in
a manner so that awards made subsequent to each such evaluation
are made in a manner that, in the determination of the National
Coordinator, will result in the greatest improvement in the quality
and efficiency of health care.
Evaluation.
Deadline.
42 USC 300jj–38.
‘‘SEC. 3018. AUTHORIZATION FOR APPROPRIATIONS.
‘‘For the purposes of carrying out this subtitle, there is authorized to be appropriated such sums as may be necessary for each
of the fiscal years 2009 through 2013.’’.
Subtitle D—Privacy
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42 USC 17921.
SEC. 13400. DEFINITIONS.
In this subtitle, except as specified otherwise:
(1) BREACH.—
(A) IN GENERAL.—The term ‘‘breach’’ means the
unauthorized acquisition, access, use, or disclosure of protected health information which compromises the security
or privacy of such information, except where an unauthorized person to whom such information is disclosed would
not reasonably have been able to retain such information.
(B) EXCEPTIONS.—The term ‘‘breach’’ does not include—
(i) any unintentional acquisition, access, or use
of protected health information by an employee or individual acting under the authority of a covered entity
or business associate if—
(I) such acquisition, access, or use was made
in good faith and within the course and scope
of the employment or other professional relationship of such employee or individual, respectively,
with the covered entity or business associate; and
(II) such information is not further acquired,
accessed, used, or disclosed by any person; or
(ii) any inadvertent disclosure from an individual
who is otherwise authorized to access protected health
information at a facility operated by a covered entity
or business associate to another similarly situated individual at same facility; and
(iii) any such information received as a result of
such disclosure is not further acquired, accessed, used,
or disclosed without authorization by any person.
(2) BUSINESS ASSOCIATE.—The term ‘‘business associate’’
has the meaning given such term in section 160.103 of title
45, Code of Federal Regulations.
(3) COVERED ENTITY.—The term ‘‘covered entity’’ has the
meaning given such term in section 160.103 of title 45, Code
of Federal Regulations.
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(4) DISCLOSE.—The terms ‘‘disclose’’ and ‘‘disclosure’’ have
the meaning given the term ‘‘disclosure’’ in section 160.103
of title 45, Code of Federal Regulations.
(5) ELECTRONIC HEALTH RECORD.—The term ‘‘electronic
health record’’ means an electronic record of health-related
information on an individual that is created, gathered, managed, and consulted by authorized health care clinicians and
staff.
(6) HEALTH CARE OPERATIONS.—The term ‘‘health care operation’’ has the meaning given such term in section 164.501
of title 45, Code of Federal Regulations.
(7) HEALTH CARE PROVIDER.—The term ‘‘health care provider’’ has the meaning given such term in section 160.103
of title 45, Code of Federal Regulations.
(8) HEALTH PLAN.—The term ‘‘health plan’’ has the meaning
given such term in section 160.103 of title 45, Code of Federal
Regulations.
(9) NATIONAL COORDINATOR.—The term ‘‘National Coordinator’’ means the head of the Office of the National Coordinator
for Health Information Technology established under section
3001(a) of the Public Health Service Act, as added by section
13101.
(10) PAYMENT.—The term ‘‘payment’’ has the meaning
given such term in section 164.501 of title 45, Code of Federal
Regulations.
(11) PERSONAL HEALTH RECORD.—The term ‘‘personal
health record’’ means an electronic record of PHR identifiable
health information (as defined in section 13407(f)(2)) on an
individual that can be drawn from multiple sources and that
is managed, shared, and controlled by or primarily for the
individual.
(12) PROTECTED HEALTH INFORMATION.—The term ‘‘protected health information’’ has the meaning given such term
in section 160.103 of title 45, Code of Federal Regulations.
(13) SECRETARY.—The term ‘‘Secretary’’ means the Secretary of Health and Human Services.
(14) SECURITY.—The term ‘‘security’’ has the meaning given
such term in section 164.304 of title 45, Code of Federal Regulations.
(15) STATE.—The term ‘‘State’’ means each of the several
States, the District of Columbia, Puerto Rico, the Virgin Islands,
Guam, American Samoa, and the Northern Mariana Islands.
(16) TREATMENT.—The term ‘‘treatment’’ has the meaning
given such term in section 164.501 of title 45, Code of Federal
Regulations.
(17) USE.—The term ‘‘use’’ has the meaning given such
term in section 160.103 of title 45, Code of Federal Regulations.
(18) VENDOR OF PERSONAL HEALTH RECORDS.—The term
‘‘vendor of personal health records’’ means an entity, other
than a covered entity (as defined in paragraph (3)), that offers
or maintains a personal health record.
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PUBLIC LAW 111–5—FEB. 17, 2009
PART 1—IMPROVED PRIVACY PROVISIONS
AND SECURITY PROVISIONS
42 USC 17931.
SEC. 13401. APPLICATION OF SECURITY PROVISIONS AND PENALTIES
TO BUSINESS ASSOCIATES OF COVERED ENTITIES;
ANNUAL GUIDANCE ON SECURITY PROVISIONS.
(a) APPLICATION OF SECURITY PROVISIONS.—Sections 164.308,
164.310, 164.312, and 164.316 of title 45, Code of Federal Regulations, shall apply to a business associate of a covered entity in
the same manner that such sections apply to the covered entity.
The additional requirements of this title that relate to security
and that are made applicable with respect to covered entities shall
also be applicable to such a business associate and shall be incorporated into the business associate agreement between the business
associate and the covered entity.
(b) APPLICATION OF CIVIL AND CRIMINAL PENALTIES.—In the
case of a business associate that violates any security provision
specified in subsection (a), sections 1176 and 1177 of the Social
Security Act (42 U.S.C. 1320d–5, 1320d–6) shall apply to the business associate with respect to such violation in the same manner
such sections apply to a covered entity that violates such security
provision.
(c) ANNUAL GUIDANCE.—For the first year beginning after the
date of the enactment of this Act and annually thereafter, the
Secretary of Health and Human Services shall, after consultation
with stakeholders, annually issue guidance on the most effective
and appropriate technical safeguards for use in carrying out the
sections referred to in subsection (a) and the security standards
in subpart C of part 164 of title 45, Code of Federal Regulations,
including the use of standards developed under section
3002(b)(2)(B)(vi) of the Public Health Service Act, as added by
section 13101 of this Act, as such provisions are in effect as of
the date before the enactment of this Act.
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42 USC 17932.
SEC. 13402. NOTIFICATION IN THE CASE OF BREACH.
(a) IN GENERAL.—A covered entity that accesses, maintains,
retains, modifies, records, stores, destroys, or otherwise holds, uses,
or discloses unsecured protected health information (as defined
in subsection (h)(1)) shall, in the case of a breach of such information
that is discovered by the covered entity, notify each individual
whose unsecured protected health information has been, or is
reasonably believed by the covered entity to have been, accessed,
acquired, or disclosed as a result of such breach.
(b) NOTIFICATION OF COVERED ENTITY BY BUSINESS ASSOCIATE.—A business associate of a covered entity that accesses, maintains, retains, modifies, records, stores, destroys, or otherwise holds,
uses, or discloses unsecured protected health information shall,
following the discovery of a breach of such information, notify
the covered entity of such breach. Such notice shall include the
identification of each individual whose unsecured protected health
information has been, or is reasonably believed by the business
associate to have been, accessed, acquired, or disclosed during such
breach.
(c) BREACHES TREATED AS DISCOVERED.—For purposes of this
section, a breach shall be treated as discovered by a covered entity
or by a business associate as of the first day on which such breach
is known to such entity or associate, respectively, (including any
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person, other than the individual committing the breach, that is
an employee, officer, or other agent of such entity or associate,
respectively) or should reasonably have been known to such entity
or associate (or person) to have occurred.
(d) TIMELINESS OF NOTIFICATION.—
(1) IN GENERAL.—Subject to subsection (g), all notifications
required under this section shall be made without unreasonable
delay and in no case later than 60 calendar days after the
discovery of a breach by the covered entity involved (or business
associate involved in the case of a notification required under
subsection (b)).
(2) BURDEN OF PROOF.—The covered entity involved (or
business associate involved in the case of a notification required
under subsection (b)), shall have the burden of demonstrating
that all notifications were made as required under this part,
including evidence demonstrating the necessity of any delay.
(e) METHODS OF NOTICE.—
(1) INDIVIDUAL NOTICE.—Notice required under this section
to be provided to an individual, with respect to a breach,
shall be provided promptly and in the following form:
(A) Written notification by first-class mail to the individual (or the next of kin of the individual if the individual
is deceased) at the last known address of the individual
or the next of kin, respectively, or, if specified as a preference by the individual, by electronic mail. The notification
may be provided in one or more mailings as information
is available.
(B) In the case in which there is insufficient, or outof-date contact information (including a phone number,
email address, or any other form of appropriate communication) that precludes direct written (or, if specified by the
individual under subparagraph (A), electronic) notification
to the individual, a substitute form of notice shall be provided, including, in the case that there are 10 or more
individuals for which there is insufficient or out-of-date
contact information, a conspicuous posting for a period
determined by the Secretary on the home page of the
Web site of the covered entity involved or notice in major
print or broadcast media, including major media in
geographic areas where the individuals affected by the
breach likely reside. Such a notice in media or web posting
will include a toll-free phone number where an individual
can learn whether or not the individual’s unsecured protected health information is possibly included in the breach.
(C) In any case deemed by the covered entity involved
to require urgency because of possible imminent misuse
of unsecured protected health information, the covered
entity, in addition to notice provided under subparagraph
(A), may provide information to individuals by telephone
or other means, as appropriate.
(2) MEDIA NOTICE.—Notice shall be provided to prominent
media outlets serving a State or jurisdiction, following the
discovery of a breach described in subsection (a), if the
unsecured protected health information of more than 500 residents of such State or jurisdiction is, or is reasonably believed
to have been, accessed, acquired, or disclosed during such
breach.
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PUBLIC LAW 111–5—FEB. 17, 2009
(3) NOTICE TO SECRETARY.—Notice shall be provided to
the Secretary by covered entities of unsecured protected health
information that has been acquired or disclosed in a breach.
If the breach was with respect to 500 or more individuals
than such notice must be provided immediately. If the breach
was with respect to less than 500 individuals, the covered
entity may maintain a log of any such breach occurring and
annually submit such a log to the Secretary documenting such
breaches occurring during the year involved.
(4) POSTING ON HHS PUBLIC WEBSITE.—The Secretary shall
make available to the public on the Internet website of the
Department of Health and Human Services a list that identifies
each covered entity involved in a breach described in subsection
(a) in which the unsecured protected health information of
more than 500 individuals is acquired or disclosed.
(f) CONTENT OF NOTIFICATION.—Regardless of the method by
which notice is provided to individuals under this section, notice
of a breach shall include, to the extent possible, the following:
(1) A brief description of what happened, including the
date of the breach and the date of the discovery of the breach,
if known.
(2) A description of the types of unsecured protected health
information that were involved in the breach (such as full
name, Social Security number, date of birth, home address,
account number, or disability code).
(3) The steps individuals should take to protect themselves
from potential harm resulting from the breach.
(4) A brief description of what the covered entity involved
is doing to investigate the breach, to mitigate losses, and to
protect against any further breaches.
(5) Contact procedures for individuals to ask questions
or learn additional information, which shall include a tollfree telephone number, an e-mail address, Web site, or postal
address.
(g) DELAY OF NOTIFICATION AUTHORIZED FOR LAW ENFORCEMENT PURPOSES.—If a law enforcement official determines that
a notification, notice, or posting required under this section would
impede a criminal investigation or cause damage to national security, such notification, notice, or posting shall be delayed in the
same manner as provided under section 164.528(a)(2) of title 45,
Code of Federal Regulations, in the case of a disclosure covered
under such section.
(h) UNSECURED PROTECTED HEALTH INFORMATION.—
(1) DEFINITION.—
(A) IN GENERAL.—Subject to subparagraph (B), for purposes of this section, the term ‘‘unsecured protected health
information’’ means protected health information that is
not secured through the use of a technology or methodology
specified by the Secretary in the guidance issued under
paragraph (2).
(B) EXCEPTION IN CASE TIMELY GUIDANCE NOT ISSUED.—
In the case that the Secretary does not issue guidance
under paragraph (2) by the date specified in such paragraph, for purposes of this section, the term ‘‘unsecured
protected health information’’ shall mean protected health
information that is not secured by a technology standard
that renders protected health information unusable,
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unreadable, or indecipherable to unauthorized individuals
and is developed or endorsed by a standards developing
organization that is accredited by the American National
Standards Institute.
(2) GUIDANCE.—For purposes of paragraph (1) and section
13407(f)(3), not later than the date that is 60 days after the
date of the enactment of this Act, the Secretary shall, after
consultation with stakeholders, issue (and annually update)
guidance specifying the technologies and methodologies that
render protected health information unusable, unreadable, or
indecipherable to unauthorized individuals, including the use
of standards developed under section 3002(b)(2)(B)(vi) of the
Public Health Service Act, as added by section 13101 of this
Act.
(i) REPORT TO CONGRESS ON BREACHES.—
(1) IN GENERAL.—Not later than 12 months after the date
of the enactment of this Act and annually thereafter, the Secretary shall prepare and submit to the Committee on Finance
and the Committee on Health, Education, Labor, and Pensions
of the Senate and the Committee on Ways and Means and
the Committee on Energy and Commerce of the House of Representatives a report containing the information described in
paragraph (2) regarding breaches for which notice was provided
to the Secretary under subsection (e)(3).
(2) INFORMATION.—The information described in this paragraph regarding breaches specified in paragraph (1) shall
include—
(A) the number and nature of such breaches; and
(B) actions taken in response to such breaches.
(j) REGULATIONS; EFFECTIVE DATE.—To carry out this section,
the Secretary of Health and Human Services shall promulgate
interim final regulations by not later than the date that is 180
days after the date of the enactment of this title. The provisions
of this section shall apply to breaches that are discovered on or
after the date that is 30 days after the date of publication of
such interim final regulations.
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SEC. 13403. EDUCATION ON HEALTH INFORMATION PRIVACY.
42 USC 17933.
(a) REGIONAL OFFICE PRIVACY ADVISORS.—Not later than 6
months after the date of the enactment of this Act, the Secretary
shall designate an individual in each regional office of the Department of Health and Human Services to offer guidance and education
to covered entities, business associates, and individuals on their
rights and responsibilities related to Federal privacy and security
requirements for protected health information.
(b) EDUCATION INITIATIVE ON USES OF HEALTH INFORMATION.—
Not later than 12 months after the date of the enactment of this
Act, the Office for Civil Rights within the Department of Health
and Human Services shall develop and maintain a multi-faceted
national education initiative to enhance public transparency
regarding the uses of protected health information, including programs to educate individuals about the potential uses of their
protected health information, the effects of such uses, and the
rights of individuals with respect to such uses. Such programs
shall be conducted in a variety of languages and present information
in a clear and understandable manner.
Deadline.
Designation.
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42 USC 17934.
PUBLIC LAW 111–5—FEB. 17, 2009
SEC. 13404. APPLICATION OF PRIVACY PROVISIONS AND PENALTIES
TO BUSINESS ASSOCIATES OF COVERED ENTITIES.
(a) APPLICATION OF CONTRACT REQUIREMENTS.—In the case
of a business associate of a covered entity that obtains or creates
protected health information pursuant to a written contract (or
other written arrangement) described in section 164.502(e)(2) of
title 45, Code of Federal Regulations, with such covered entity,
the business associate may use and disclose such protected health
information only if such use or disclosure, respectively, is in compliance with each applicable requirement of section 164.504(e) of such
title. The additional requirements of this subtitle that relate to
privacy and that are made applicable with respect to covered entities shall also be applicable to such a business associate and shall
be incorporated into the business associate agreement between the
business associate and the covered entity.
(b) APPLICATION OF KNOWLEDGE ELEMENTS ASSOCIATED WITH
CONTRACTS.—Section 164.504(e)(1)(ii) of title 45, Code of Federal
Regulations, shall apply to a business associate described in subsection (a), with respect to compliance with such subsection, in
the same manner that such section applies to a covered entity,
with respect to compliance with the standards in sections 164.502(e)
and 164.504(e) of such title, except that in applying such section
164.504(e)(1)(ii) each reference to the business associate, with
respect to a contract, shall be treated as a reference to the covered
entity involved in such contract.
(c) APPLICATION OF CIVIL AND CRIMINAL PENALTIES.—In the
case of a business associate that violates any provision of subsection
(a) or (b), the provisions of sections 1176 and 1177 of the Social
Security Act (42 U.S.C. 1320d–5, 1320d–6) shall apply to the business associate with respect to such violation in the same manner
as such provisions apply to a person who violates a provision
of part C of title XI of such Act.
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42 USC 17935.
SEC. 13405. RESTRICTIONS ON CERTAIN DISCLOSURES AND SALES OF
HEALTH INFORMATION; ACCOUNTING OF CERTAIN PROTECTED HEALTH INFORMATION DISCLOSURES; ACCESS
TO CERTAIN INFORMATION IN ELECTRONIC FORMAT.
(a) REQUESTED RESTRICTIONS ON CERTAIN DISCLOSURES OF
HEALTH INFORMATION.—In the case that an individual requests
under paragraph (a)(1)(i)(A) of section 164.522 of title 45, Code
of Federal Regulations, that a covered entity restrict the disclosure
of the protected health information of the individual, notwithstanding paragraph (a)(1)(ii) of such section, the covered entity
must comply with the requested restriction if—
(1) except as otherwise required by law, the disclosure
is to a health plan for purposes of carrying out payment or
health care operations (and is not for purposes of carrying
out treatment); and
(2) the protected health information pertains solely to a
health care item or service for which the health care provider
involved has been paid out of pocket in full.
(b) DISCLOSURES REQUIRED TO BE LIMITED TO THE LIMITED
DATA SET OR THE MINIMUM NECESSARY.—
(1) IN GENERAL.—
(A) IN GENERAL.—Subject to subparagraph (B), a covered entity shall be treated as being in compliance with
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123 STAT. 265
section 164.502(b)(1) of title 45, Code of Federal Regulations, with respect to the use, disclosure, or request of
protected health information described in such section, only
if the covered entity limits such protected health information, to the extent practicable, to the limited data set
(as defined in section 164.514(e)(2) of such title) or, if
needed by such entity, to the minimum necessary to accomplish the intended purpose of such use, disclosure, or
request, respectively.
(B) GUIDANCE.—Not later than 18 months after the
date of the enactment of this section, the Secretary shall
issue guidance on what constitutes ‘‘minimum necessary’’
for purposes of subpart E of part 164 of title 45, Code
of Federal Regulation. In issuing such guidance the Secretary shall take into consideration the guidance under
section 13424(c) and the information necessary to improve
patient outcomes and to detect, prevent, and manage
chronic disease.
(C) SUNSET.—Subparagraph (A) shall not apply on and
after the effective date on which the Secretary issues the
guidance under subparagraph (B).
(2) DETERMINATION OF MINIMUM NECESSARY.—For purposes
of paragraph (1), in the case of the disclosure of protected
health information, the covered entity or business associate
disclosing such information shall determine what constitutes
the minimum necessary to accomplish the intended purpose
of such disclosure.
(3) APPLICATION OF EXCEPTIONS.—The exceptions described
in section 164.502(b)(2) of title 45, Code of Federal Regulations,
shall apply to the requirement under paragraph (1) as of the
effective date described in section 13423 in the same manner
that such exceptions apply to section 164.502(b)(1) of such
title before such date.
(4) RULE OF CONSTRUCTION.—Nothing in this subsection
shall be construed as affecting the use, disclosure, or request
of protected health information that has been de-identified.
(c) ACCOUNTING OF CERTAIN PROTECTED HEALTH INFORMATION
DISCLOSURES REQUIRED IF COVERED ENTITY USES ELECTRONIC
HEALTH RECORD.—
‘‘(1) IN GENERAL.—In applying section 164.528 of title 45,
Code of Federal Regulations, in the case that a covered entity
uses or maintains an electronic health record with respect
to protected health information—
‘‘(A) the exception under paragraph (a)(1)(i) of such
section shall not apply to disclosures through an electronic
health record made by such entity of such information;
and
‘‘(B) an individual shall have a right to receive an
accounting of disclosures described in such paragraph of
such information made by such covered entity during only
the three years prior to the date on which the accounting
is requested.
‘‘(2) REGULATIONS.—The Secretary shall promulgate regulations on what information shall be collected about each disclosure referred to in paragraph (1), not later than 6 months
after the date on which the Secretary adopts standards on
accounting for disclosure described in the section
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PUBLIC LAW 111–5—FEB. 17, 2009
3002(b)(2)(B)(iv) of the Public Health Service Act, as added
by section 13101. Such regulations shall only require such
information to be collected through an electronic health record
in a manner that takes into account the interests of the individuals in learning the circumstances under which their protected
health information is being disclosed and takes into account
the administrative burden of accounting for such disclosures.
‘‘(3) PROCESS.—In response to an request from an individual
for an accounting, a covered entity shall elect to provide either
an—
‘‘(A) accounting, as specified under paragraph (1), for
disclosures of protected health information that are made
by such covered entity and by a business associate acting
on behalf of the covered entity; or
‘‘(B) accounting, as specified under paragraph (1), for
disclosures that are made by such covered entity and provide a list of all business associates acting on behalf of
the covered entity, including contact information for such
associates (such as mailing address, phone, and email
address).
A business associate included on a list under subparagraph
(B) shall provide an accounting of disclosures (as required under
paragraph (1) for a covered entity) made by the business associate upon a request made by an individual directly to the
business associate for such an accounting.
‘‘(4) EFFECTIVE DATE.—
‘‘(A) CURRENT USERS OF ELECTRONIC RECORDS.—In the
case of a covered entity insofar as it acquired an electronic
health record as of January 1, 2009, paragraph (1) shall
apply to disclosures, with respect to protected health
information, made by the covered entity from such a record
on and after January 1, 2014.
‘‘(B) OTHERS.—In the case of a covered entity insofar
as it acquires an electronic health record after January
1, 2009, paragraph (1) shall apply to disclosures, with
respect to protected health information, made by the covered entity from such record on and after the later of
the following:
‘‘(i) January 1, 2011; or
‘‘(ii) the date that it acquires an electronic health
record.
‘‘(C) LATER DATE.—The Secretary may set an effective
date that is later that the date specified under subparagraph (A) or (B) if the Secretary determines that such
later date is necessary, but in no case may the date specified under—
‘‘(i) subparagraph (A) be later than 2016; or
‘‘(ii) subparagraph (B) be later than 2013.’’
(d) PROHIBITION ON SALE OF ELECTRONIC HEALTH RECORDS
OR PROTECTED HEALTH INFORMATION.—
(1) IN GENERAL.—Except as provided in paragraph (2), a
covered entity or business associate shall not directly or
indirectly receive remuneration in exchange for any protected
health information of an individual unless the covered entity
obtained from the individual, in accordance with section 164.508
of title 45, Code of Federal Regulations, a valid authorization
that includes, in accordance with such section, a specification
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 267
of whether the protected health information can be further
exchanged for remuneration by the entity receiving protected
health information of that individual.
(2) EXCEPTIONS.—Paragraph (1) shall not apply in the following cases:
(A) The purpose of the exchange is for public health
activities (as described in section 164.512(b) of title 45,
Code of Federal Regulations).
(B) The purpose of the exchange is for research (as
described in sections 164.501 and 164.512(i) of title 45,
Code of Federal Regulations) and the price charged reflects
the costs of preparation and transmittal of the data for
such purpose.
(C) The purpose of the exchange is for the treatment
of the individual, subject to any regulation that the Secretary may promulgate to prevent protected health
information from inappropriate access, use, or disclosure.
(D) The purpose of the exchange is the health care
operation specifically described in subparagraph (iv) of
paragraph (6) of the definition of healthcare operations
in section 164.501 of title 45, Code of Federal Regulations.
(E) The purpose of the exchange is for remuneration
that is provided by a covered entity to a business associate
for activities involving the exchange of protected health
information that the business associate undertakes on
behalf of and at the specific request of the covered entity
pursuant to a business associate agreement.
(F) The purpose of the exchange is to provide an individual with a copy of the individual’s protected health
information pursuant to section 164.524 of title 45, Code
of Federal Regulations.
(G) The purpose of the exchange is otherwise determined by the Secretary in regulations to be similarly necessary and appropriate as the exceptions provided in subparagraphs (A) through (F).
(3) REGULATIONS.—Not later than 18 months after the
date of enactment of this title, the Secretary shall promulgate
regulations to carry out this subsection. In promulgating such
regulations, the Secretary—
(A) shall evaluate the impact of restricting the exception described in paragraph (2)(A) to require that the price
charged for the purposes described in such paragraph
reflects the costs of the preparation and transmittal of
the data for such purpose, on research or public health
activities, including those conducted by or for the use of
the Food and Drug Administration; and
(B) may further restrict the exception described in
paragraph (2)(A) to require that the price charged for the
purposes described in such paragraph reflects the costs
of the preparation and transmittal of the data for such
purpose, if the Secretary finds that such further restriction
will not impede such research or public health activities.
(4) EFFECTIVE DATE.—Paragraph (1) shall apply to
exchanges occurring on or after the date that is 6 months
after the date of the promulgation of final regulations implementing this subsection.
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PUBLIC LAW 111–5—FEB. 17, 2009
(e) ACCESS TO CERTAIN INFORMATION IN ELECTRONIC FORMAT.—
In applying section 164.524 of title 45, Code of Federal Regulations,
in the case that a covered entity uses or maintains an electronic
health record with respect to protected health information of an
individual—
(1) the individual shall have a right to obtain from such
covered entity a copy of such information in an electronic format
and, if the individual chooses, to direct the covered entity
to transmit such copy directly to an entity or person designated
by the individual, provided that any such choice is clear, conspicuous, and specific; and
(2) notwithstanding paragraph (c)(4) of such section, any
fee that the covered entity may impose for providing such
individual with a copy of such information (or a summary
or explanation of such information) if such copy (or summary
or explanation) is in an electronic form shall not be greater
than the entity’s labor costs in responding to the request for
the copy (or summary or explanation).
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42 USC 17936.
SEC. 13406. CONDITIONS ON CERTAIN CONTACTS AS PART OF HEALTH
CARE OPERATIONS.
(a) MARKETING.—
(1) IN GENERAL.—A communication by a covered entity
or business associate that is about a product or service and
that encourages recipients of the communication to purchase
or use the product or service shall not be considered a health
care operation for purposes of subpart E of part 164 of title
45, Code of Federal Regulations, unless the communication
is made as described in subparagraph (i), (ii), or (iii) of paragraph (1) of the definition of marketing in section 164.501
of such title.
(2) PAYMENT FOR CERTAIN COMMUNICATIONS.—A communication by a covered entity or business associate that is
described in subparagraph (i), (ii), or (iii) of paragraph (1)
of the definition of marketing in section 164.501 of title 45,
Code of Federal Regulations, shall not be considered a health
care operation for purposes of subpart E of part 164 of title
45, Code of Federal Regulations if the covered entity receives
or has received direct or indirect payment in exchange for
making such communication, except where—
(A)(i) such communication describes only a drug or
biologic that is currently being prescribed for the recipient
of the communication; and
(ii) any payment received by such covered entity in
exchange for making a communication described in clause
(i) is reasonable in amount;
(B) each of the following conditions apply—
(i) the communication is made by the covered
entity; and
(ii) the covered entity making such communication
obtains from the recipient of the communication, in
accordance with section 164.508 of title 45, Code of
Federal Regulations, a valid authorization (as
described in paragraph (b) of such section) with respect
to such communication; or
(C) each of the following conditions apply—
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(i) the communication is made by a business associate on behalf of the covered entity; and
(ii) the communication is consistent with the written contract (or other written arrangement described
in section 164.502(e)(2) of such title) between such
business associate and covered entity.
(3) REASONABLE IN AMOUNT DEFINED.—For purposes of
paragraph (2), the term ‘‘reasonable in amount’’ shall have
the meaning given such term by the Secretary by regulation.
(4) DIRECT OR INDIRECT PAYMENT.—For purposes of paragraph (2), the term ‘‘direct or indirect payment’’ shall not
include any payment for treatment (as defined in section
164.501 of title 45, Code of Federal Regulations) of an individual.
(b) OPPORTUNITY TO OPT OUT OF FUNDRAISING.—The Secretary
shall by rule provide that any written fundraising communication
that is a healthcare operation as defined under section 164.501
of title 45, Code of Federal Regulations, shall, in a clear and
conspicuous manner, provide an opportunity for the recipient of
the communications to elect not to receive any further such communication. When an individual elects not to receive any further
such communication, such election shall be treated as a revocation
of authorization under section 164.508 of title 45, Code of Federal
Regulations.
(c) EFFECTIVE DATE.—This section shall apply to written
communications occurring on or after the effective date specified
under section 13423.
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SEC. 13407. TEMPORARY BREACH NOTIFICATION REQUIREMENT FOR
VENDORS OF PERSONAL HEALTH RECORDS AND OTHER
NON-HIPAA COVERED ENTITIES.
Regulations.
42 USC 17937.
(a) IN GENERAL.—In accordance with subsection (c), each vendor
of personal health records, following the discovery of a breach
of security of unsecured PHR identifiable health information that
is in a personal health record maintained or offered by such vendor,
and each entity described in clause (ii), (iii), or (iv) of section
13424(b)(1)(A), following the discovery of a breach of security of
such information that is obtained through a product or service
provided by such entity, shall—
(1) notify each individual who is a citizen or resident of
the United States whose unsecured PHR identifiable health
information was acquired by an unauthorized person as a result
of such a breach of security; and
(2) notify the Federal Trade Commission.
(b) NOTIFICATION BY THIRD PARTY SERVICE PROVIDERS.—A third
party service provider that provides services to a vendor of personal
health records or to an entity described in clause (ii), (iii). or
(iv) of section 13424(b)(1)(A) in connection with the offering or
maintenance of a personal health record or a related product or
service and that accesses, maintains, retains, modifies, records,
stores, destroys, or otherwise holds, uses, or discloses unsecured
PHR identifiable health information in such a record as a result
of such services shall, following the discovery of a breach of security
of such information, notify such vendor or entity, respectively, of
such breach. Such notice shall include the identification of each
individual whose unsecured PHR identifiable health information
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PUBLIC LAW 111–5—FEB. 17, 2009
has been, or is reasonably believed to have been, accessed, acquired,
or disclosed during such breach.
(c) APPLICATION OF REQUIREMENTS FOR TIMELINESS, METHOD,
AND CONTENT OF NOTIFICATIONS.—Subsections (c), (d), (e), and (f)
of section 13402 shall apply to a notification required under subsection (a) and a vendor of personal health records, an entity
described in subsection (a) and a third party service provider
described in subsection (b), with respect to a breach of security
under subsection (a) of unsecured PHR identifiable health information in such records maintained or offered by such vendor, in
a manner specified by the Federal Trade Commission.
(d) NOTIFICATION OF THE SECRETARY.—Upon receipt of a
notification of a breach of security under subsection (a)(2), the
Federal Trade Commission shall notify the Secretary of such breach.
(e) ENFORCEMENT.—A violation of subsection (a) or (b) shall
be treated as an unfair and deceptive act or practice in violation
of a regulation under section 18(a)(1)(B) of the Federal Trade
Commission Act (15 U.S.C. 57a(a)(1)(B)) regarding unfair or deceptive acts or practices.
(f) DEFINITIONS.—For purposes of this section:
(1) BREACH OF SECURITY.—The term ‘‘breach of security’’
means, with respect to unsecured PHR identifiable health
information of an individual in a personal health record,
acquisition of such information without the authorization of
the individual.
(2) PHR IDENTIFIABLE HEALTH INFORMATION.—The term
‘‘PHR identifiable health information’’ means individually
identifiable health information, as defined in section 1171(6)
of the Social Security Act (42 U.S.C. 1320d(6)), and includes,
with respect to an individual, information—
(A) that is provided by or on behalf of the individual;
and
(B) that identifies the individual or with respect to
which there is a reasonable basis to believe that the
information can be used to identify the individual.
(3) UNSECURED PHR IDENTIFIABLE HEALTH INFORMATION.—
(A) IN GENERAL.—Subject to subparagraph (B), the
term ‘‘unsecured PHR identifiable health information’’
means PHR identifiable health information that is not
protected through the use of a technology or methodology
specified by the Secretary in the guidance issued under
section 13402(h)(2).
(B) EXCEPTION IN CASE TIMELY GUIDANCE NOT ISSUED.—
In the case that the Secretary does not issue guidance
under section 13402(h)(2) by the date specified in such
section, for purposes of this section, the term ‘‘unsecured
PHR identifiable health information’’ shall mean PHR
identifiable health information that is not secured by a
technology standard that renders protected health information unusable, unreadable, or indecipherable to unauthorized individuals and that is developed or endorsed by a
standards developing organization that is accredited by
the American National Standards Institute.
(g) REGULATIONS; EFFECTIVE DATE; SUNSET.—
(1) REGULATIONS; EFFECTIVE DATE.—To carry out this section, the Federal Trade Commission shall promulgate interim
final regulations by not later than the date that is 180 days
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after the date of the enactment of this section. The provisions
of this section shall apply to breaches of security that are
discovered on or after the date that is 30 days after the date
of publication of such interim final regulations.
(2) SUNSET.—If Congress enacts new legislation establishing requirements for notification in the case of a breach
of security, that apply to entities that are not covered entities
or business associates, the provisions of this section shall not
apply to breaches of security discovered on or after the effective
date of regulations implementing such legislation.
SEC. 13408. BUSINESS ASSOCIATE CONTRACTS REQUIRED FOR CERTAIN ENTITIES.
Applicability.
42 USC 17938.
Each organization, with respect to a covered entity, that provides data transmission of protected health information to such
entity (or its business associate) and that requires access on a
routine basis to such protected health information, such as a Health
Information Exchange Organization, Regional Health Information
Organization, E-prescribing Gateway, or each vendor that contracts
with a covered entity to allow that covered entity to offer a personal
health record to patients as part of its electronic health record,
is required to enter into a written contract (or other written arrangement) described in section 164.502(e)(2) of title 45, Code of Federal
Regulations and a written contract (or other arrangement) described
in section 164.308(b) of such title, with such entity and shall be
treated as a business associate of the covered entity for purposes
of the provisions of this subtitle and subparts C and E of part
164 of title 45, Code of Federal Regulations, as such provisions
are in effect as of the date of enactment of this title.
SEC. 13409. CLARIFICATION OF APPLICATION OF WRONGFUL DISCLOSURES CRIMINAL PENALTIES.
Section 1177(a) of the Social Security Act (42 U.S.C. 1320d–
6(a)) is amended by adding at the end the following new sentence:
‘‘For purposes of the previous sentence, a person (including an
employee or other individual) shall be considered to have obtained
or disclosed individually identifiable health information in violation
of this part if the information is maintained by a covered entity
(as defined in the HIPAA privacy regulation described in section
1180(b)(3)) and the individual obtained or disclosed such information without authorization.’’.
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SEC. 13410. IMPROVED ENFORCEMENT.
42 USC 17939.
(a) IN GENERAL.—
(1) NONCOMPLIANCE DUE TO WILLFUL NEGLECT.—Section
1176 of the Social Security Act (42 U.S.C. 1320d–5) is
amended—
(A) in subsection (b)(1), by striking ‘‘the act constitutes
an offense punishable under section 1177’’ and inserting
‘‘a penalty has been imposed under section 1177 with
respect to such act’’; and
(B) by adding at the end the following new subsection:
‘‘(c) NONCOMPLIANCE DUE TO WILLFUL NEGLECT.—
‘‘(1) IN GENERAL.—A violation of a provision of this part
due to willful neglect is a violation for which the Secretary
is required to impose a penalty under subsection (a)(1).
‘‘(2) REQUIRED INVESTIGATION.—For purposes of paragraph
(1), the Secretary shall formally investigate any complaint of
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a violation of a provision of this part if a preliminary investigation of the facts of the complaint indicate such a possible
violation due to willful neglect.’’.
(2) ENFORCEMENT UNDER SOCIAL SECURITY ACT.—Any violation by a covered entity under thus subtitle is subject to enforcement and penalties under section 1176 and 1177 of the Social
Security Act.
(b) EFFECTIVE DATE; REGULATIONS.—
(1) The amendments made by subsection (a) shall apply
to penalties imposed on or after the date that is 24 months
after the date of the enactment of this title.
(2) Not later than 18 months after the date of the enactment of this title, the Secretary of Health and Human Services
shall promulgate regulations to implement such amendments.
(c) DISTRIBUTION OF CERTAIN CIVIL MONETARY PENALTIES COLLECTED.—
(1) IN GENERAL.—Subject to the regulation promulgated
pursuant to paragraph (3), any civil monetary penalty or monetary settlement collected with respect to an offense punishable
under this subtitle or section 1176 of the Social Security Act
(42 U.S.C. 1320d–5) insofar as such section relates to privacy
or security shall be transferred to the Office for Civil Rights
of the Department of Health and Human Services to be used
for purposes of enforcing the provisions of this subtitle and
subparts C and E of part 164 of title 45, Code of Federal
Regulations, as such provisions are in effect as of the date
of enactment of this Act.
(2) GAO REPORT.—Not later than 18 months after the
date of the enactment of this title, the Comptroller General
shall submit to the Secretary a report including recommendations for a methodology under which an individual who is
harmed by an act that constitutes an offense referred to in
paragraph (1) may receive a percentage of any civil monetary
penalty or monetary settlement collected with respect to such
offense.
(3) ESTABLISHMENT OF METHODOLOGY TO DISTRIBUTE
PERCENTAGE OF CMPS COLLECTED TO HARMED INDIVIDUALS.—
Not later than 3 years after the date of the enactment of
this title, the Secretary shall establish by regulation and based
on the recommendations submitted under paragraph (2), a
methodology under which an individual who is harmed by
an act that constitutes an offense referred to in paragraph
(1) may receive a percentage of any civil monetary penalty
or monetary settlement collected with respect to such offense.
(4) APPLICATION OF METHODOLOGY.—The methodology
under paragraph (3) shall be applied with respect to civil monetary penalties or monetary settlements imposed on or after
the effective date of the regulation.
(d) TIERED INCREASE IN AMOUNT OF CIVIL MONETARY PENALTIES.—
(1) IN GENERAL.—Section 1176(a)(1) of the Social Security
Act (42 U.S.C. 1320d–5(a)(1)) is amended by striking ‘‘who
violates a provision of this part a penalty of not more than’’
and all that follows and inserting the following: ‘‘who violates
a provision of this part—
‘‘(A) in the case of a violation of such provision in
which it is established that the person did not know (and
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123 STAT. 273
by exercising reasonable diligence would not have known)
that such person violated such provision, a penalty for
each such violation of an amount that is at least the
amount described in paragraph (3)(A) but not to exceed
the amount described in paragraph (3)(D);
‘‘(B) in the case of a violation of such provision in
which it is established that the violation was due to reasonable cause and not to willful neglect, a penalty for each
such violation of an amount that is at least the amount
described in paragraph (3)(B) but not to exceed the amount
described in paragraph (3)(D); and
‘‘(C) in the case of a violation of such provision in
which it is established that the violation was due to willful
neglect—
‘‘(i) if the violation is corrected as described in
subsection (b)(3)(A), a penalty in an amount that is
at least the amount described in paragraph (3)(C) but
not to exceed the amount described in paragraph (3)(D);
and
‘‘(ii) if the violation is not corrected as described
in such subsection, a penalty in an amount that is
at least the amount described in paragraph (3)(D).
In determining the amount of a penalty under this section
for a violation, the Secretary shall base such determination
on the nature and extent of the violation and the nature
and extent of the harm resulting from such violation.’’.
(2) TIERS OF PENALTIES DESCRIBED.—Section 1176(a) of
such Act (42 U.S.C. 1320d–5(a)) is further amended by adding
at the end the following new paragraph:
‘‘(3) TIERS OF PENALTIES DESCRIBED.—For purposes of paragraph (1), with respect to a violation by a person of a provision
of this part—
‘‘(A) the amount described in this subparagraph is
$100 for each such violation, except that the total amount
imposed on the person for all such violations of an identical
requirement or prohibition during a calendar year may
not exceed $25,000;
‘‘(B) the amount described in this subparagraph is
$1,000 for each such violation, except that the total amount
imposed on the person for all such violations of an identical
requirement or prohibition during a calendar year may
not exceed $100,000;
‘‘(C) the amount described in this subparagraph is
$10,000 for each such violation, except that the total
amount imposed on the person for all such violations of
an identical requirement or prohibition during a calendar
year may not exceed $250,000; and
‘‘(D) the amount described in this subparagraph is
$50,000 for each such violation, except that the total
amount imposed on the person for all such violations of
an identical requirement or prohibition during a calendar
year may not exceed $1,500,000.’’.
(3) CONFORMING AMENDMENTS.—Section 1176(b) of such
Act (42 U.S.C. 1320d–5(b)) is amended—
(A) by striking paragraph (2) and redesignating paragraphs (3) and (4) as paragraphs (2) and (3), respectively;
and
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(B) in paragraph (2), as so redesignated—
(i) in subparagraph (A), by striking ‘‘in subparagraph (B), a penalty may not be imposed under subsection (a) if’’ and all that follows through ‘‘the failure
to comply is corrected’’ and inserting ‘‘in subparagraph
(B) or subsection (a)(1)(C), a penalty may not be
imposed under subsection (a) if the failure to comply
is corrected’’; and
(ii) in subparagraph (B), by striking ‘‘(A)(ii)’’ and
inserting ‘‘(A)’’ each place it appears.
(4) EFFECTIVE DATE.—The amendments made by this subsection shall apply to violations occurring after the date of
the enactment of this title.
(e) ENFORCEMENT THROUGH STATE ATTORNEYS GENERAL.—
(1) IN GENERAL.—Section 1176 of the Social Security Act
(42 U.S.C. 1320d–5) is amended by adding at the end the
following new subsection:
‘‘(d) ENFORCEMENT BY STATE ATTORNEYS GENERAL.—
‘‘(1) CIVIL ACTION.—Except as provided in subsection (b),
in any case in which the attorney general of a State has
reason to believe that an interest of one or more of the residents
of that State has been or is threatened or adversely affected
by any person who violates a provision of this part, the attorney
general of the State, as parens patriae, may bring a civil
action on behalf of such residents of the State in a district
court of the United States of appropriate jurisdiction—
‘‘(A) to enjoin further such violation by the defendant;
or
‘‘(B) to obtain damages on behalf of such residents
of the State, in an amount equal to the amount determined
under paragraph (2).
‘‘(2) STATUTORY DAMAGES.—
‘‘(A) IN GENERAL.—For purposes of paragraph (1)(B),
the amount determined under this paragraph is the amount
calculated by multiplying the number of violations by up
to $100. For purposes of the preceding sentence, in the
case of a continuing violation, the number of violations
shall be determined consistent with the HIPAA privacy
regulations (as defined in section 1180(b)(3)) for violations
of subsection (a).
‘‘(B) LIMITATION.—The total amount of damages
imposed on the person for all violations of an identical
requirement or prohibition during a calendar year may
not exceed $25,000.
‘‘(C) REDUCTION OF DAMAGES.—In assessing damages
under subparagraph (A), the court may consider the factors
the Secretary may consider in determining the amount
of a civil money penalty under subsection (a) under the
HIPAA privacy regulations.
‘‘(3) ATTORNEY FEES.—In the case of any successful action
under paragraph (1), the court, in its discretion, may award
the costs of the action and reasonable attorney fees to the
State.
‘‘(4) NOTICE TO SECRETARY.—The State shall serve prior
written notice of any action under paragraph (1) upon the
Secretary and provide the Secretary with a copy of its complaint, except in any case in which such prior notice is not
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123 STAT. 275
feasible, in which case the State shall serve such notice immediately upon instituting such action. The Secretary shall have
the right—
‘‘(A) to intervene in the action;
‘‘(B) upon so intervening, to be heard on all matters
arising therein; and
‘‘(C) to file petitions for appeal.
‘‘(5) CONSTRUCTION.—For purposes of bringing any civil
action under paragraph (1), nothing in this section shall be
construed to prevent an attorney general of a State from exercising the powers conferred on the attorney general by the
laws of that State.
‘‘(6) VENUE; SERVICE OF PROCESS.—
‘‘(A) VENUE.—Any action brought under paragraph (1)
may be brought in the district court of the United States
that meets applicable requirements relating to venue under
section 1391 of title 28, United States Code.
‘‘(B) SERVICE OF PROCESS.—In an action brought under
paragraph (1), process may be served in any district in
which the defendant—
‘‘(i) is an inhabitant; or
‘‘(ii) maintains a physical place of business.
‘‘(7) LIMITATION ON STATE ACTION WHILE FEDERAL ACTION
IS PENDING.—If the Secretary has instituted an action against
a person under subsection (a) with respect to a specific violation
of this part, no State attorney general may bring an action
under this subsection against the person with respect to such
violation during the pendency of that action.
‘‘(8) APPLICATION OF CMP STATUTE OF LIMITATION.—A civil
action may not be instituted with respect to a violation of
this part unless an action to impose a civil money penalty
may be instituted under subsection (a) with respect to such
violation consistent with the second sentence of section
1128A(c)(1).’’.
(2) CONFORMING AMENDMENTS.—Subsection (b) of such section, as amended by subsection (d)(3), is amended—
(A) in paragraph (1), by striking ‘‘A penalty may not
be imposed under subsection (a)’’ and inserting ‘‘No penalty
may be imposed under subsection (a) and no damages
obtained under subsection (d)’’;
(B) in paragraph (2)(A)—
(i) after ‘‘subsection (a)(1)(C),’’, by striking ‘‘a penalty may not be imposed under subsection (a)’’ and
inserting ‘‘no penalty may be imposed under subsection
(a) and no damages obtained under subsection (d)’’;
and
(ii) in clause (ii), by inserting ‘‘or damages’’ after
‘‘the penalty’’;
(C) in paragraph (2)(B)(i), by striking ‘‘The period’’
and inserting ‘‘With respect to the imposition of a penalty
by the Secretary under subsection (a), the period’’; and
(D) in paragraph (3), by inserting ‘‘and any damages
under subsection (d)’’ after ‘‘any penalty under subsection
(a)’’.
(3) EFFECTIVE DATE.—The amendments made by this subsection shall apply to violations occurring after the date of
the enactment of this Act.
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PUBLIC LAW 111–5—FEB. 17, 2009
(f) ALLOWING CONTINUED USE OF CORRECTIVE ACTION.—Such
section is further amended by adding at the end the following
new subsection:
‘‘(e) ALLOWING CONTINUED USE OF CORRECTIVE ACTION.—
Nothing in this section shall be construed as preventing the Office
for Civil Rights of the Department of Health and Human Services
from continuing, in its discretion, to use corrective action without
a penalty in cases where the person did not know (and by exercising
reasonable diligence would not have known) of the violation
involved.’’.
42 USC 17940.
SEC. 13411. AUDITS.
The Secretary shall provide for periodic audits to ensure that
covered entities and business associates that are subject to the
requirements of this subtitle and subparts C and E of part 164
of title 45, Code of Federal Regulations, as such provisions are
in effect as of the date of enactment of this Act, comply with
such requirements.
PART 2—RELATIONSHIP TO OTHER LAWS;
REGULATORY
REFERENCES;
EFFECTIVE
DATE; REPORTS
42 USC 17951.
SEC. 13421. RELATIONSHIP TO OTHER LAWS.
(a) APPLICATION OF HIPAA STATE PREEMPTION.—Section 1178
of the Social Security Act (42 U.S.C. 1320d–7) shall apply to a
provision or requirement under this subtitle in the same manner
that such section applies to a provision or requirement under part
C of title XI of such Act or a standard or implementation specification adopted or established under sections 1172 through 1174 of
such Act.
(b) HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY
ACT.—The standards governing the privacy and security of individually identifiable health information promulgated by the Secretary
under sections 262(a) and 264 of the Health Insurance Portability
and Accountability Act of 1996 shall remain in effect to the extent
that they are consistent with this subtitle. The Secretary shall
by rule amend such Federal regulations as required to make such
regulations consistent with this subtitle.
(c) CONSTRUCTION.—Nothing in this subtitle shall constitute
a waiver of any privilege otherwise applicable to an individual
with respect to the protected health information of such individual.
42 USC 17952.
SEC. 13422. REGULATORY REFERENCES.
Each reference in this subtitle to a provision of the Code of
Federal Regulations refers to such provision as in effect on the
date of the enactment of this title (or to the most recent update
of such provision).
42 USC 17953.
SEC. 13423. EFFECTIVE DATE.
Except as otherwise specifically provided, the provisions of part
I shall take effect on the date that is 12 months after the date
of the enactment of this title.
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42 USC 17954.
SEC. 13424. STUDIES, REPORTS, GUIDANCE.
(a) REPORT ON COMPLIANCE.—
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123 STAT. 277
(1) IN GENERAL.—For the first year beginning after the
date of the enactment of this Act and annually thereafter,
the Secretary shall prepare and submit to the Committee on
Health, Education, Labor, and Pensions of the Senate and
the Committee on Ways and Means and the Committee on
Energy and Commerce of the House of Representatives a report
concerning complaints of alleged violations of law, including
the provisions of this subtitle as well as the provisions of
subparts C and E of part 164 of title 45, Code of Federal
Regulations, (as such provisions are in effect as of the date
of enactment of this Act) relating to privacy and security of
health information that are received by the Secretary during
the year for which the report is being prepared. Each such
report shall include, with respect to such complaints received
during the year—
(A) the number of such complaints;
(B) the number of such complaints resolved informally,
a summary of the types of such complaints so resolved,
and the number of covered entities that received technical
assistance from the Secretary during such year in order
to achieve compliance with such provisions and the types
of such technical assistance provided;
(C) the number of such complaints that have resulted
in the imposition of civil monetary penalties or have been
resolved through monetary settlements, including the
nature of the complaints involved and the amount paid
in each penalty or settlement;
(D) the number of compliance reviews conducted and
the outcome of each such review;
(E) the number of subpoenas or inquiries issued;
(F) the Secretary’s plan for improving compliance with
and enforcement of such provisions for the following year;
and
(G) the number of audits performed and a summary
of audit findings pursuant to section 13411.
(2) AVAILABILITY TO PUBLIC.—Each report under paragraph
(1) shall be made available to the public on the Internet website
of the Department of Health and Human Services.
(b) STUDY AND REPORT ON APPLICATION OF PRIVACY AND SECURITY REQUIREMENTS TO NON-HIPAA COVERED ENTITIES.—
(1) STUDY.—Not later than one year after the date of the
enactment of this title, the Secretary, in consultation with
the Federal Trade Commission, shall conduct a study, and
submit a report under paragraph (2), on privacy and security
requirements for entities that are not covered entities or business associates as of the date of the enactment of this title,
including—
(A) requirements relating to security, privacy, and
notification in the case of a breach of security or privacy
(including the applicability of an exemption to notification
in the case of individually identifiable health information
that has been rendered unusable, unreadable, or indecipherable through technologies or methodologies recognized
by appropriate professional organization or standard setting bodies to provide effective security for the information)
that should be applied to—
(i) vendors of personal health records;
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PUBLIC LAW 111–5—FEB. 17, 2009
(ii) entities that offer products or services through
the website of a vendor of personal health records;
(iii) entities that are not covered entities and that
offer products or services through the websites of covered entities that offer individuals personal health
records;
(iv) entities that are not covered entities and that
access information in a personal health record or send
information to a personal health record; and
(v) third party service providers used by a vendor
or entity described in clause (i), (ii), (iii), or (iv) to
assist in providing personal health record products or
services;
(B) a determination of which Federal government
agency is best equipped to enforce such requirements recommended to be applied to such vendors, entities, and
service providers under subparagraph (A); and
(C) a timeframe for implementing regulations based
on such findings.
(2) REPORT.—The Secretary shall submit to the Committee
on Finance, the Committee on Health, Education, Labor, and
Pensions, and the Committee on Commerce of the Senate and
the Committee on Ways and Means and the Committee on
Energy and Commerce of the House of Representatives a report
on the findings of the study under paragraph (1) and shall
include in such report recommendations on the privacy and
security requirements described in such paragraph.
(c) GUIDANCE ON IMPLEMENTATION SPECIFICATION TO DE-IDENTIFY PROTECTED HEALTH INFORMATION.—Not later than 12 months
after the date of the enactment of this title, the Secretary shall,
in consultation with stakeholders, issue guidance on how best to
implement the requirements for the de-identification of protected
health information under section 164.514(b) of title 45, Code of
Federal Regulations.
(d) GAO REPORT ON TREATMENT DISCLOSURES.—Not later than
one year after the date of the enactment of this title, the Comptroller
General of the United States shall submit to the Committee on
Health, Education, Labor, and Pensions of the Senate and the
Committee on Ways and Means and the Committee on Energy
and Commerce of the House of Representatives a report on the
best practices related to the disclosure among health care providers
of protected health information of an individual for purposes of
treatment of such individual. Such report shall include an examination of the best practices implemented by States and by other
entities, such as health information exchanges and regional health
information organizations, an examination of the extent to which
such best practices are successful with respect to the quality of
the resulting health care provided to the individual and with respect
to the ability of the health care provider to manage such best
practices, and an examination of the use of electronic informed
consent for disclosing protected health information for treatment,
payment, and health care operations.
(e) REPORT REQUIRED.—Not later than 5 years after the date
of enactment of this section, the Government Accountability Office
shall submit to Congress and the Secretary of Health and Human
Services a report on the impact of any of the provisions of this
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Act on health insurance premiums, overall health care costs, adoption of electronic health records by providers, and reduction in
medical errors and other quality improvements.
(f) STUDY.—The Secretary shall study the definition of ‘‘psychotherapy notes’’ in section 164.501 of title 45, Code of Federal Regulations, with regard to including test data that is related to direct
responses, scores, items, forms, protocols, manuals, or other materials that are part of a mental health evaluation, as determined
by the mental health professional providing treatment or evaluation
in such definitions and may, based on such study, issue regulations
to revise such definition.
TITLE XIV—STATE FISCAL
STABILIZATION FUND
DEPARTMENT OF EDUCATION
STATE FISCAL STABILIZATION FUND
For necessary expenses for a State Fiscal Stabilization Fund,
$53,600,000,000, which shall be administered by the Department
of Education.
GENERAL PROVISIONS—THIS TITLE
SEC. 14001. ALLOCATIONS.
(a) OUTLYING AREAS.—From the amount appropriated to carry
out this title, the Secretary of Education shall first allocate up
to one-half of 1 percent to the outlying areas on the basis of
their respective needs, as determined by the Secretary, in consultation with the Secretary of the Interior, for activities consistent
with this title under such terms and conditions as the Secretary
may determine.
(b) ADMINISTRATION AND OVERSIGHT.—The Secretary may, in
addition, reserve up to $14,000,000 for administration and oversight
of this title, including for program evaluation.
(c) RESERVATION FOR ADDITIONAL PROGRAMS.—After reserving
funds under subsections (a) and (b), the Secretary shall reserve
$5,000,000,000 for grants under sections 14006 and 14007.
(d) STATE ALLOCATIONS.—After carrying out subsections (a),
(b), and (c), the Secretary shall allocate the remaining funds made
available to carry out this title to the States as follows:
(1) 61 percent on the basis of their relative population
of individuals aged 5 through 24.
(2) 39 percent on the basis of their relative total population.
(e) STATE GRANTS.—From funds allocated under subsection (d),
the Secretary shall make grants to the Governor of each State.
(f) REALLOCATION.—The Governor shall return to the Secretary
any funds received under subsection (e) that the Governor does
not award as subgrants or otherwise commit within two years
of receiving such funds, and the Secretary shall reallocate such
funds to the remaining States in accordance with subsection (d).
Grants.
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SEC. 14002. STATE USES OF FUNDS.
(a) EDUCATION FUND.—
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123 STAT. 280
PUBLIC LAW 111–5—FEB. 17, 2009
(1) IN GENERAL.—For each fiscal year, the Governor shall
use 81.8 percent of the State’s allocation under section 14001(d)
for the support of elementary, secondary, and postsecondary
education and, as applicable, early childhood education programs and services.
(2) RESTORING STATE SUPPORT FOR EDUCATION.—
(A) IN GENERAL.—The Governor shall first use the
funds described in paragraph (1)—
(i) to provide the amount of funds, through the
State’s primary elementary and secondary funding formulae, that is needed—
(I) to restore, in each of fiscal years 2009,
2010, and 2011, the level of State support provided
through such formulae to the greater of the fiscal
year 2008 or fiscal year 2009 level; and
(II) where applicable, to allow existing State
formulae increases to support elementary and secondary education for fiscal years 2010 and 2011
to be implemented and allow funding for phasing
in State equity and adequacy adjustments, if such
increases were enacted pursuant to State law prior
to October 1, 2008.
(ii) to provide, in each of fiscal years 2009, 2010,
and 2011, the amount of funds to public institutions
of higher education in the State that is needed to
restore State support for such institutions (excluding
tuition and fees paid by students) to the greater of
the fiscal year 2008 or fiscal year 2009 level.
(B) SHORTFALL.—If the Governor determines that the
amount of funds available under paragraph (1) is insufficient to support, in each of fiscal years 2009, 2010, and
2011, public elementary, secondary, and higher education
at the levels described in clauses (i) and (ii) of subparagraph
(A), the Governor shall allocate those funds between those
clauses in proportion to the relative shortfall in State support for the education sectors described in those clauses.
(C) FISCAL YEAR.—For purposes of this paragraph, the
term ‘‘fiscal year’’ shall have the meaning given such term
under State law.
(3) SUBGRANTS TO IMPROVE BASIC PROGRAMS OPERATED BY
LOCAL EDUCATIONAL AGENCIES.—After carrying out paragraph
(2), the Governor shall use any funds remaining under paragraph (1) to provide local educational agencies in the State
with subgrants based on their relative shares of funding under
part A of title I of the Elementary and Secondary Education
Act of 1965 (20 U.S.C. 6311 et seq.) for the most recent year
for which data are available.
(b) OTHER GOVERNMENT SERVICES.—
(1) IN GENERAL.—The Governor shall use 18.2 percent of
the State’s allocation under section 14001 for public safety
and other government services, which may include assistance
for elementary and secondary education and public institutions
of higher education, and for modernization, renovation, or
repair of public school facilities and institutions of higher education facilities, including modernization, renovation, and
repairs that are consistent with a recognized green building
rating system.
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(2) AVAILABILITY TO ALL INSTITUTIONS OF HIGHER EDUCATION.—A Governor shall not consider the type or mission
of an institution of higher education, and shall consider any
institution for funding for modernization, renovation, and
repairs within the State that—
(A) qualifies as an institution of higher education, as
defined in subsection 14013(3); and
(B) continues to be eligible to participate in the programs under title IV of the Higher Education Act of 1965.
(c) RULE OF CONSTRUCTION.—Nothing in this section shall allow
a local educational agency to engage in school modernization, renovation, or repair that is inconsistent with State law.
SEC. 14003. USES OF FUNDS BY LOCAL EDUCATIONAL AGENCIES.
(a) IN GENERAL.—A local educational agency that receives funds
under this title may use the funds for any activity authorized
by the Elementary and Secondary Education Act of 1965 (20 U.S.C.
6301 et seq.) (‘‘ESEA’’), the Individuals with Disabilities Education
Act (20 U.S.C. 1400 et seq.) (‘‘IDEA’’), the Adult and Family Literacy
Act (20 U.S.C. 1400 et seq.), or the Carl D. Perkins Career and
Technical Education Act of 2006 (20 U.S.C. 2301 et seq.) (‘‘the
Perkins Act’’) or for modernization, renovation, or repair of public
school facilities, including modernization, renovation, and repairs
that are consistent with a recognized green building rating system.
(b) PROHIBITION.—A local educational agency may not use funds
received under this title for—
(1) payment of maintenance costs;
(2) stadiums or other facilities primarily used for athletic
contests or exhibitions or other events for which admission
is charged to the general public;
(3) purchase or upgrade of vehicles; or
(4) improvement of stand-alone facilities whose purpose
is not the education of children, including central office administration or operations or logistical support facilities.
(c) RULE OF CONSTRUCTION.—Nothing in this section shall allow
a local educational agency to engage in school modernization, renovation, or repair that is inconsistent with State law.
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SEC. 14004. USES OF FUNDS BY INSTITUTIONS OF HIGHER EDUCATION.
(a) IN GENERAL.—A public institution of higher education that
receives funds under this title shall use the funds for education
and general expenditures, and in such a way as to mitigate the
need to raise tuition and fees for in-State students, or for modernization, renovation, or repair of institution of higher education facilities
that are primarily used for instruction, research, or student housing,
including modernization, renovation, and repairs that are consistent
with a recognized green building rating system.
(b) PROHIBITION.—An institution of higher education may not
use funds received under this title to increase its endowment.
(c) ADDITIONAL PROHIBITION.—No funds awarded under this
title may be used for—
(1) the maintenance of systems, equipment, or facilities;
(2) modernization, renovation, or repair of stadiums or
other facilities primarily used for athletic contests or exhibitions
or other events for which admission is charged to the general
public; or
(3) modernization, renovation, or repair of facilities—
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PUBLIC LAW 111–5—FEB. 17, 2009
(A) used for sectarian instruction or religious worship;
or
(B) in which a substantial portion of the functions
of the facilities are subsumed in a religious mission.
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SEC. 14005. STATE APPLICATIONS.
(a) IN GENERAL.—The Governor of a State desiring to receive
an allocation under section 14001 shall submit an application at
such time, in such manner, and containing such information as
the Secretary may reasonably require.
(b) APPLICATION.—In such application, the Governor shall—
(1) include the assurances described in subsection (d);
(2) provide baseline data that demonstrates the State’s
current status in each of the areas described in such assurances;
and
(3) describe how the State intends to use its allocation,
including whether the State will use such allocation to meet
maintenance of effort requirements under the ESEA and IDEA
and, in such cases, what amount will be used to meet such
requirements.
(c) INCENTIVE GRANT APPLICATION.—The Governor of a State
seeking a grant under section 14006 shall—
(1) submit an application for consideration;
(2) describe the status of the State’s progress in each of
the areas described in subsection (d), and the strategies the
State is employing to help ensure that students in the subgroups described in section 1111(b)(2)(C)(v)(II) of the ESEA
(20 U.S.C. 6311(b)(2)(C)(v)(II)) who have not met the State’s
proficiency targets continue making progress toward meeting
the State’s student academic achievement standards;
(3) describe the achievement and graduation rates (as
described in section 1111(b)(2)(C)(vi) of the ESEA (20 U.S.C.
6311(b)(2)(C)(vi)) and as clarified in section 200.19(b)(1) of title
34, Code of Federal Regulations) of public elementary and
secondary school students in the State, and the strategies the
State is employing to help ensure that all subgroups of students
identified in section 1111(b)(2) of the ESEA (20 U.S.C.
6311(b)(2)) in the State continue making progress toward
meeting the State’s student academic achievement standards;
(4) describe how the State would use its grant funding
to improve student academic achievement in the State,
including how it will allocate the funds to give priority to
high-need local educational agencies; and
(5) include a plan for evaluating the State’s progress in
closing achievement gaps.
(d) ASSURANCES.—An application under subsection (b) shall
include the following assurances:
(1) MAINTENANCE OF EFFORT.—
(A) ELEMENTARY AND SECONDARY EDUCATION.—The
State will, in each of fiscal years 2009, 2010, and 2011,
maintain State support for elementary and secondary education at least at the level of such support in fiscal year
2006.
(B) HIGHER EDUCATION.—The State will, in each of
fiscal years 2009, 2010, and 2011, maintain State support
for public institutions of higher education (not including
support for capital projects or for research and development
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or tuition and fees paid by students) at least at the level
of such support in fiscal year 2006.
(2) ACHIEVING EQUITY IN TEACHER DISTRIBUTION.—The
State will take actions to improve teacher effectiveness and
comply with section 1111(b)(8)(C) of the ESEA (20 U.S.C.
6311(b)(8)(C)) in order to address inequities in the distribution
of highly qualified teachers between high- and low-poverty
schools, and to ensure that low-income and minority children
are not taught at higher rates than other children by inexperienced, unqualified, or out-of-field teachers.
(3) IMPROVING COLLECTION AND USE OF DATA.—The State
will establish a longitudinal data system that includes the
elements described in section 6401(e)(2)(D) of the America
COMPETES Act (20 U.S.C. 9871).
(4) STANDARDS AND ASSESSMENTS.—The State—
(A) will enhance the quality of the academic assessments it administers pursuant to section 1111(b)(3) of the
ESEA (20 U.S.C. 6311(b)(3)) through activities such as
those described in section 6112(a) of such Act (20 U.S.C.
7301a(a));
(B) will comply with the requirements of paragraphs
(3)(C)(ix) and (6) of section 1111(b) of the ESEA (20 U.S.C.
6311(b)) and section 612(a)(16) of the IDEA (20 U.S.C.
1412(a)(16)) related to the inclusion of children with disabilities and limited English proficient students in State
assessments, the development of valid and reliable assessments for those students, and the provision of accommodations that enable their participation in State assessments;
and
(C) will take steps to improve State academic content
standards and student academic achievement standards
consistent with section 6401(e)(1)(9)(A)(ii) of the America
COMPETES Act.
(5) SUPPORTING STRUGGLING SCHOOLS.—The State will
ensure compliance with the requirements of section
1116(a)(7)(C)(iv) and section 1116(a)(8)(B) of the ESEA with
respect to schools identified under such sections.
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SEC. 14006. STATE INCENTIVE GRANTS.
(a) IN GENERAL.—
(1) RESERVATION.—From the total amount reserved under
section 14001(c) that is not used for section 14007, the Secretary
may reserve up to 1 percent for technical assistance to States
to assist them in meeting the objectives of paragraphs (2),
(3), (4), and (5) of section 14005(d).
(2) REMAINDER.—Of the remaining funds, the Secretary
shall, in fiscal year 2010, make grants to States that have
made significant progress in meeting the objectives of paragraphs (2), (3), (4), and (5) of section 14005(d).
(b) BASIS FOR GRANTS.—The Secretary shall determine which
States receive grants under this section, and the amount of those
grants, on the basis of information provided in State applications
under section 14005 and such other criteria as the Secretary determines appropriate, which may include a State’s need for assistance
to help meet the objective of paragraphs (2), (3), (4), and (5) of
section 14005(d).
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PUBLIC LAW 111–5—FEB. 17, 2009
(c) SUBGRANTS TO LOCAL EDUCATIONAL AGENCIES.—Each State
receiving a grant under this section shall use at least 50 percent
of the grant to provide local educational agencies in the State
with subgrants based on their relative shares of funding under
part A of title I of the ESEA (20 U.S.C. 6311 et seq.) for the
most recent year.
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SEC. 14007. INNOVATION FUND.
(a) IN GENERAL.—
(1) ELIGIBLE ENTITIES.—For the purposes of this section,
the term ‘‘eligible entity’’ means—
(A) a local educational agency; or
(B) a partnership between a nonprofit organization
and—
(i) one or more local educational agencies; or
(ii) a consortium of schools.
(2) PROGRAM ESTABLISHED.—From the total amount
reserved under section 14001(c), the Secretary may reserve
up to $650,000,000 to establish an Innovation Fund, which
shall consist of academic achievement awards that recognize
eligible entities that meet the requirements described in subsection (b).
(3) BASIS FOR AWARDS.—The Secretary shall make awards
to eligible entities that have made significant gains in closing
the achievement gap as described in subsection (b)(1)—
(A) to allow such eligible entities to expand their work
and serve as models for best practices;
(B) to allow such eligible entities to work in partnership
with the private sector and the philanthropic community;
and
(C) to identify and document best practices that can
be shared, and taken to scale based on demonstrated success.
(b) ELIGIBILITY.—To be eligible for such an award, an eligible
entity shall—
(1) have significantly closed the achievement gaps between
groups of students described in section 1111(b)(2) of the ESEA
(20 U.S.C. 6311(b)(2));
(2) have exceeded the State’s annual measurable objectives
consistent with such section 1111(b)(2) for 2 or more consecutive
years or have demonstrated success in significantly increasing
student academic achievement for all groups of students
described in such section through another measure, such as
measures described in section 1111(c)(2) of the ESEA;
(3) have made significant improvement in other areas, such
as graduation rates or increased recruitment and placement
of high-quality teachers and school leaders, as demonstrated
with meaningful data; and
(4) demonstrate that they have established partnerships
with the private sector, which may include philanthropic
organizations, and that the private sector will provide matching
funds in order to help bring results to scale.
(c) SPECIAL RULE.—In the case of an eligible entity that includes
a nonprofit organization, the eligible entity shall be considered
to have met the eligibility requirements of paragraphs (1), (2),
(3) of subsection (b) if such nonprofit organization has a record
of meeting such requirements.
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123 STAT. 285
SEC. 14008. STATE REPORTS.
For each year of the program under this title, a State receiving
funds under this title shall submit a report to the Secretary, at
such time and in such manner as the Secretary may require,
that describes—
(1) the uses of funds provided under this title within the
State;
(2) how the State distributed the funds it received under
this title;
(3) the number of jobs that the Governor estimates were
saved or created with funds the State received under this
title;
(4) tax increases that the Governor estimates were averted
because of the availability of funds from this title;
(5) the State’s progress in reducing inequities in the distribution of highly qualified teachers, in implementing a State
longitudinal data system, and in developing and implementing
valid and reliable assessments for limited English proficient
students and children with disabilities;
(6) the tuition and fee increases for in-State students
imposed by public institutions of higher education in the State
during the period of availability of funds under this title, and
a description of any actions taken by the State to limit those
increases;
(7) the extent to which public institutions of higher education maintained, increased, or decreased enrollment of inState students, including students eligible for Pell Grants or
other need-based financial assistance; and
(8) a description of each modernization, renovation and
repair project funded, which shall include the amounts awarded
and project costs.
SEC. 14009. EVALUATION.
The Comptroller General of the United States shall conduct
evaluations of the programs under sections 14006 and 14007 which
shall include, but not be limited to, the criteria used for the awards
made, the States selected for awards, award amounts, how each
State used the award received, and the impact of this funding
on the progress made toward closing achievement gaps.
SEC. 14010. SECRETARY’S REPORT TO CONGRESS.
The Secretary shall submit a report to the Committee on Education and Labor of the House of Representatives, the Committee
on Health, Education, Labor, and Pensions of the Senate, and
the Committees on Appropriations of the House of Representatives
and of the Senate, not less than 6 months following the submission
of State reports, that evaluates the information provided in the
State reports under section 14008 and the information required
by section 14005(b)(3) including State-by-State information.
SEC. 14011. PROHIBITION ON PROVISION OF CERTAIN ASSISTANCE.
No recipient of funds under this title shall use such funds
to provide financial assistance to students to attend private
elementary or secondary schools.
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SEC. 14012. FISCAL RELIEF.
(a) IN GENERAL.—For the purpose of relieving fiscal burdens
on States and local educational agencies that have experienced
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a precipitous decline in financial resources, the Secretary of Education may waive or modify any requirement of this title relating
to maintaining fiscal effort.
(b) DURATION.—A waiver or modification under this section
shall be for any of fiscal year 2009, fiscal year 2010, or fiscal
year 2011, as determined by the Secretary.
(c) CRITERIA.—The Secretary shall not grant a waiver or modification under this section unless the Secretary determines that
the State or local educational agency receiving such waiver or
modification will not provide for elementary and secondary education, for the fiscal year under consideration, a smaller percentage
of the total revenues available to the State or local educational
agency than the amount provided for such purpose in the preceding
fiscal year.
(d) MAINTENANCE OF EFFORT.—Upon prior approval from the
Secretary, a State or local educational agency that receives funds
under this title may treat any portion of such funds that is used
for elementary, secondary, or postsecondary education as non-Federal funds for the purpose of any requirement to maintain fiscal
effort under any other program, including part C of the Individuals
with Disabilities Education Act (20 U.S.C. 1431 et seq.), administered by the Secretary.
(e) SUBSEQUENT LEVEL OF EFFORT.—Notwithstanding (d), the
level of effort required by a State or local educational agency for
the following fiscal year shall not be reduced.
SEC. 14013. DEFINITIONS.
Except as otherwise provided in this title, as used in this
title—
(1) the terms ‘‘elementary education’’ and ‘‘secondary education’’ have the meaning given such terms under State law;
(2) the term ‘‘high-need local educational agency’’ means
a local educational agency—
(A) that serves not fewer than 10,000 children from
families with incomes below the poverty line; or
(B) for which not less than 20 percent of the children
served by the agency are from families with incomes below
the poverty line;
(3) the term ‘‘institution of higher education’’ has the
meaning given such term in section 101 of the Higher Education
Act of 1965 (20 U.S.C. 1001);
(4) the term ‘‘Secretary’’ means the Secretary of Education;
(5) the term ‘‘State’’ means each of the 50 States, the
District of Columbia, and the Commonwealth of Puerto Rico;
and
(6) any other term used that is defined in section 9101
of the ESEA (20 U.S.C. 7801) shall have the meaning given
the term in such section.
TITLE XV—ACCOUNTABILITY AND
TRANSPARENCY
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SEC. 1501. DEFINITIONS.
In this title:
(1) AGENCY.—The term ‘‘agency’’ has the meaning given
under section 551 of title 5, United States Code.
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(2) BOARD.—The term ‘‘Board’’ means the Recovery
Accountability and Transparency Board established in section
1521.
(3) CHAIRPERSON.—The term ‘‘Chairperson’’ means the
Chairperson of the Board.
(4) COVERED FUNDS.—The term ‘‘covered funds’’ means any
funds that are expended or obligated from appropriations made
under this Act.
(5) PANEL.—The term ‘‘Panel’’ means the Recovery Independent Advisory Panel established in section 1541.
Subtitle A—Transparency and Oversight
Requirements
SEC. 1511. CERTIFICATIONS.
With respect to covered funds made available to State or local
governments for infrastructure investments, the Governor, mayor,
or other chief executive, as appropriate, shall certify that the infrastructure investment has received the full review and vetting
required by law and that the chief executive accepts responsibility
that the infrastructure investment is an appropriate use of taxpayer
dollars. Such certification shall include a description of the investment, the estimated total cost, and the amount of covered funds
to be used, and shall be posted on a website and linked to the
website established by section 1526. A State or local agency may
not receive infrastructure investment funding from funds made
available in this Act unless this certification is made and posted.
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SEC. 1512. REPORTS ON USE OF FUNDS.
(a) SHORT TITLE.—This section may be cited as the ‘‘Jobs
Accountability Act’’.
(b) DEFINITIONS.—In this section:
(1) RECIPIENT.—The term ‘‘recipient’’—
(A) means any entity that receives recovery funds
directly from the Federal Government (including recovery
funds received through grant, loan, or contract) other than
an individual; and
(B) includes a State that receives recovery funds.
(2) RECOVERY FUNDS.—The term ‘‘recovery funds’’ means
any funds that are made available from appropriations made
under this Act.
(c) RECIPIENT REPORTS.—Not later than 10 days after the end
of each calendar quarter, each recipient that received recovery
funds from a Federal agency shall submit a report to that agency
that contains—
(1) the total amount of recovery funds received from that
agency;
(2) the amount of recovery funds received that were
expended or obligated to projects or activities; and
(3) a detailed list of all projects or activities for which
recovery funds were expended or obligated, including—
(A) the name of the project or activity;
(B) a description of the project or activity;
(C) an evaluation of the completion status of the project
or activity;
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Jobs
Accountability
Act.
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(D) an estimate of the number of jobs created and
the number of jobs retained by the project or activity;
and
(E) for infrastructure investments made by State and
local governments, the purpose, total cost, and rationale
of the agency for funding the infrastructure investment
with funds made available under this Act, and name of
the person to contact at the agency if there are concerns
with the infrastructure investment.
(4) Detailed information on any subcontracts or subgrants
awarded by the recipient to include the data elements required
to comply with the Federal Funding Accountability and Transparency Act of 2006 (Public Law 109–282), allowing aggregate
reporting on awards below $25,000 or to individuals, as prescribed by the Director of the Office of Management and Budget.
(d) AGENCY REPORTS.—Not later than 30 days after the end
of each calendar quarter, each agency that made recovery funds
available to any recipient shall make the information in reports
submitted under subsection (c) publicly available by posting the
information on a website.
(e) OTHER REPORTS.—The Congressional Budget Office and the
Government Accountability Office shall comment on the information
described in subsection (c)(3)(D) for any reports submitted under
subsection (c). Such comments shall be due within 45 days after
such reports are submitted.
(f) COMPLIANCE.—Within 180 days of enactment, as a condition
of receipt of funds under this Act, Federal agencies shall require
any recipient of such funds to provide the information required
under subsection (c).
(g) GUIDANCE.—Federal agencies, in coordination with the
Director of the Office of Management and Budget, shall provide
for user-friendly means for recipients of covered funds to meet
the requirements of this section.
(h) REGISTRATION.—Funding recipients required to report
information per subsection (c)(4) must register with the Central
Contractor Registration database or complete other registration
requirements as determined by the Director of the Office of Management and Budget.
SEC. 1513. REPORTS OF THE COUNCIL OF ECONOMIC ADVISERS.
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Applicability.
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(a) IN GENERAL.—In consultation with the Director of the Office
of Management and Budget and the Secretary of the Treasury,
the Chairperson of the Council of Economic Advisers shall submit
quarterly reports to the Committees on Appropriations of the Senate
and House of Representatives that detail the impact of programs
funded through covered funds on employment, estimated economic
growth, and other key economic indicators.
(b) SUBMISSION OF REPORTS.—
(1) FIRST REPORT.—The first report submitted under subsection (a) shall be submitted not later than 45 days after
the end of the first full quarter following the date of enactment
of this Act.
(2) LAST REPORT.—The last report required to be submitted
under subsection (a) shall apply to the quarter in which the
Board terminates under section 1530.
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SEC. 1514. INSPECTOR GENERAL REVIEWS.
(a) REVIEWS.—Any inspector general of a Federal department
or executive agency shall review, as appropriate, any concerns
raised by the public about specific investments using funds made
available in this Act. Any findings of such reviews not related
to an ongoing criminal proceeding shall be relayed immediately
to the head of the department or agency concerned. In addition,
the findings of such reviews, along with any audits conducted
by any inspector general of funds made available in this Act, shall
be posted on the inspector general’s website and linked to the
website established by section 1526, except that portions of reports
may be redacted to the extent the portions would disclose information that is protected from public disclosure under sections 552
and 552a of title 5, United States Code.
Web posting.
SEC. 1515. ACCESS OF OFFICES OF INSPECTOR GENERAL TO CERTAIN
RECORDS AND EMPLOYEES.
(a) ACCESS.—With respect to each contract or grant awarded
using covered funds, any representative of an appropriate inspector
general appointed under section 3 or 8G of the Inspector General
Act of 1978 (5 U.S.C. App.), is authorized—
(1) to examine any records of the contractor or grantee,
any of its subcontractors or subgrantees, or any State or local
agency administering such contract, that pertain to, and involve
transactions relating to, the contract, subcontract, grant, or
subgrant; and
(2) to interview any officer or employee of the contractor,
grantee, subgrantee, or agency regarding such transactions.
(b) RELATIONSHIP TO EXISTING AUTHORITY.—Nothing in this
section shall be interpreted to limit or restrict in any way any
existing authority of an inspector general.
Subtitle B—Recovery Accountability and
Transparency Board
SEC. 1521. ESTABLISHMENT OF THE RECOVERY ACCOUNTABILITY AND
TRANSPARENCY BOARD.
There is established the Recovery Accountability and Transparency Board to coordinate and conduct oversight of covered funds
to prevent fraud, waste, and abuse.
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SEC. 1522. COMPOSITION OF BOARD.
(a) CHAIRPERSON.—
(1) DESIGNATION OR APPOINTMENT.—The President shall—
(A) designate the Deputy Director for Management
of the Office of Management and Budget to serve as Chairperson of the Board;
(B) designate another Federal officer who was
appointed by the President to a position that required
the advice and consent of the Senate, to serve as Chairperson of the Board; or
(C) appoint an individual as the Chairperson of the
Board, by and with the advice and consent of the Senate.
(2) COMPENSATION.—
(A) DESIGNATION OF FEDERAL OFFICER.—If the President designates a Federal officer under paragraph (1)(A)
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or (B) to serve as Chairperson, that Federal officer may
not receive additional compensation for services performed
as Chairperson.
(B) APPOINTMENT OF NON-FEDERAL OFFICER.—If the
President appoints an individual as Chairperson under
paragraph (1)(C), that individual shall be compensated at
the rate of basic pay prescribed for level IV of the Executive
Schedule under section 5315 of title 5, United States Code.
(b) MEMBERS.—The members of the Board shall include—
(1) the Inspectors General of the Departments of Agriculture, Commerce, Education, Energy, Health and Human
Services, Homeland Security, Justice, Transportation, Treasury,
and the Treasury Inspector General for Tax Administration;
and
(2) any other Inspector General as designated by the President from any agency that expends or obligates covered funds.
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SEC. 1523. FUNCTIONS OF THE BOARD.
(a) FUNCTIONS.—
(1) IN GENERAL.—The Board shall coordinate and conduct
oversight of covered funds in order to prevent fraud, waste,
and abuse.
(2) SPECIFIC FUNCTIONS.—The functions of the Board shall
include—
(A) reviewing whether the reporting of contracts and
grants using covered funds meets applicable standards and
specifies the purpose of the contract or grant and measures
of performance;
(B) reviewing whether competition requirements
applicable to contracts and grants using covered funds
have been satisfied;
(C) auditing or reviewing covered funds to determine
whether wasteful spending, poor contract or grant management, or other abuses are occurring and referring matters
it considers appropriate for investigation to the inspector
general for the agency that disbursed the covered funds;
(D) reviewing whether there are sufficient qualified
acquisition and grant personnel overseeing covered funds;
(E) reviewing whether personnel whose duties involve
acquisitions or grants made with covered funds receive
adequate training; and
(F) reviewing whether there are appropriate mechanisms for interagency collaboration relating to covered
funds, including coordinating and collaborating to the
extent practicable with the Inspectors General Council on
Integrity and Efficiency established by the Inspector General Reform Act of 2008 (Public Law 110–409).
(b) REPORTS.—
(1) FLASH AND OTHER REPORTS.—The Board shall submit
to the President and Congress, including the Committees on
Appropriations of the Senate and House of Representatives,
reports, to be known as ‘‘flash reports’’, on potential management and funding problems that require immediate attention.
The Board also shall submit to Congress such other reports
as the Board considers appropriate on the use and benefits
of funds made available in this Act.
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(2) QUARTERLY REPORTS.—The Board shall submit quarterly reports to the President and Congress, including the
Committees on Appropriations of the Senate and House of
Representatives, summarizing the findings of the Board and
the findings of inspectors general of agencies. The Board may
submit additional reports as appropriate.
(3) ANNUAL REPORTS.—The Board shall submit annual
reports to the President and Congress, including the Committees on Appropriations of the Senate and House of Representatives, consolidating applicable quarterly reports on the use of
covered funds.
(4) PUBLIC AVAILABILITY.—
(A) IN GENERAL.—All reports submitted under this subsection shall be made publicly available and posted on
the website established by section 1526.
(B) REDACTIONS.—Any portion of a report submitted
under this subsection may be redacted when made publicly
available, if that portion would disclose information that
is not subject to disclosure under sections 552 and 552a
of title 5, United States Code.
(c) RECOMMENDATIONS.—
(1) IN GENERAL.—The Board shall make recommendations
to agencies on measures to prevent fraud, waste, and abuse
relating to covered funds.
(2) RESPONSIVE REPORTS.—Not later than 30 days after
receipt of a recommendation under paragraph (1), an agency
shall submit a report to the President, the congressional
committees of jurisdiction, including the Committees on Appropriations of the Senate and House of Representatives, and
the Board on—
(A) whether the agency agrees or disagrees with the
recommendations; and
(B) any actions the agency will take to implement
the recommendations.
Web posting.
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SEC. 1524. POWERS OF THE BOARD.
(a) IN GENERAL.—The Board shall conduct audits and reviews
of spending of covered funds and coordinate on such activities
with the inspectors general of the relevant agency to avoid duplication and overlap of work.
(b) AUDITS AND REVIEWS.—The Board may—
(1) conduct its own independent audits and reviews relating
to covered funds; and
(2) collaborate on audits and reviews relating to covered
funds with any inspector general of an agency.
(c) AUTHORITIES.—
(1) AUDITS AND REVIEWS.—In conducting audits and
reviews, the Board shall have the authorities provided under
section 6 of the Inspector General Act of 1978 (5 U.S.C. App.).
Additionally, the Board may issue subpoenas to compel the
testimony of persons who are not Federal officers or employees
and may enforce such subpoenas in the same manner as provided for inspector general subpoenas under section 6 of the
Inspector General Act of 1978 (5 U.S.C. App.).
(2) STANDARDS AND GUIDELINES.—The Board shall carry
out the powers under subsections (a) and (b) in accordance
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with section 4(b)(1) of the Inspector General Act of 1978 (5
U.S.C. App.).
(d) PUBLIC HEARINGS.—The Board may hold public hearings
and Board personnel may conduct necessary inquiries. The head
of each agency shall make all officers and employees of that agency
available to provide testimony to the Board and Board personnel.
The Board may issue subpoenas to compel the testimony of persons
who are not Federal officers or employees at such public hearings.
Any such subpoenas may be enforced in the same manner as
provided for inspector general subpoenas under section 6 of the
Inspector General Act of 1978 (5 U.S.C. App.).
(e) CONTRACTS.—The Board may enter into contracts to enable
the Board to discharge its duties under this subtitle, including
contracts and other arrangements for audits, studies, analyses,
and other services with public agencies and with private persons,
and make such payments as may be necessary to carry out the
duties of the Board.
(f) TRANSFER OF FUNDS.—The Board may transfer funds appropriated to the Board for expenses to support administrative support
services and audits, reviews, or other activities related to oversight
by the Board of covered funds to any office of inspector general,
the Office of Management and Budget, the General Services
Administration, and the Panel.
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SEC. 1525. EMPLOYMENT, PERSONNEL, AND RELATED AUTHORITIES.
(a) EMPLOYMENT AND PERSONNEL AUTHORITIES.—
(1) IN GENERAL.—
(A) AUTHORITIES.—Subject to paragraph (2), the Board
may exercise the authorities of subsections (b) through
(i) of section 3161 of title 5, United States Code (without
regard to subsection (a) of that section).
(B) APPLICATION.—For purposes of exercising the
authorities described under subparagraph (A), the term
‘‘Chairperson of the Board’’ shall be substituted for the
term ‘‘head of a temporary organization’’.
(C) CONSULTATION.—In exercising the authorities
described under subparagraph (A), the Chairperson shall
consult with members of the Board.
(2) EMPLOYMENT AUTHORITIES.—In exercising the employment authorities under subsection (b) of section 3161 of title
5, United States Code, as provided under paragraph (1) of
this subsection—
(A) paragraph (2) of subsection (b) of section 3161
of that title (relating to periods of appointments) shall
not apply; and
(B) no period of appointment may exceed the date
on which the Board terminates under section 1530.
(b) INFORMATION AND ASSISTANCE.—
(1) IN GENERAL.—Upon request of the Board for information
or assistance from any agency or other entity of the Federal
Government, the head of such entity shall, insofar as is practicable and not in contravention of any existing law, furnish
such information or assistance to the Board, or an authorized
designee.
(2) REPORT OF REFUSALS.—Whenever information or assistance requested by the Board is, in the judgment of the Board,
unreasonably refused or not provided, the Board shall report
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the circumstances to the congressional committees of jurisdiction, including the Committees on Appropriations of the Senate
and House of Representatives, without delay.
(c) ADMINISTRATIVE SUPPORT.—The General Services Administration shall provide the Board with administrative support services, including the provision of office space and facilities.
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SEC. 1526. BOARD WEBSITE.
(a) ESTABLISHMENT.—The Board shall establish and maintain,
no later than 30 days after enactment of this Act, a user-friendly,
public-facing website to foster greater accountability and transparency in the use of covered funds.
(b) PURPOSE.—The website established and maintained under
subsection (a) shall be a portal or gateway to key information
relating to this Act and provide connections to other Government
websites with related information.
(c) CONTENT AND FUNCTION.—In establishing the website established and maintained under subsection (a), the Board shall ensure
the following:
(1) The website shall provide materials explaining what
this Act means for citizens. The materials shall be easy to
understand and regularly updated.
(2) The website shall provide accountability information,
including findings from audits, inspectors general, and the
Government Accountability Office.
(3) The website shall provide data on relevant economic,
financial, grant, and contract information in user-friendly visual
presentations to enhance public awareness of the use of covered
funds.
(4) The website shall provide detailed data on contracts
awarded by the Federal Government that expend covered funds,
including information about the competitiveness of the contracting process, information about the process that was used
for the award of contracts, and for contracts over $500,000
a summary of the contract.
(5) The website shall include printable reports on covered
funds obligated by month to each State and congressional district.
(6) The website shall provide a means for the public to
give feedback on the performance of contracts that expend
covered funds.
(7) The website shall include detailed information on Federal Government contracts and grants that expend covered
funds, to include the data elements required to comply with
the Federal Funding Accountability and Transparency Act of
2006 (Public Law 109–282), allowing aggregate reporting on
awards below $25,000 or to individuals, as prescribed by the
Director of the Office of Management and Budget.
(8) The website shall provide a link to estimates of the
jobs sustained or created by the Act.
(9) The website shall provide a link to information about
announcements of grant competitions and solicitations for contracts to be awarded.
(10) The website shall include appropriate links to other
government websites with information concerning covered
funds, including Federal agency and State websites.
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(11) The website shall include a plan from each Federal
agency for using funds made available in this Act to the agency.
(12) The website shall provide information on Federal
allocations of formula grants and awards of competitive grants
using covered funds.
(13) The website shall provide information on Federal
allocations of mandatory and other entitlement programs by
State, county, or other appropriate geographical unit.
(14) To the extent practical, the website shall provide,
organized by the location of the job opportunities involved,
links to and information about how to access job opportunities,
including, if possible, links to or information about local employment agencies, job banks operated by State workforce agencies,
the Department of Labor’s CareerOneStop website, State, local
and other public agencies receiving Federal funding, and private
firms contracted to perform work with Federal funding, in
order to direct job seekers to job opportunities created by this
Act.
(15) The website shall be enhanced and updated as necessary to carry out the purposes of this subtitle.
(d) WAIVER.—The Board may exclude posting contractual or
other information on the website on a case-by-case basis when
necessary to protect national security or to protect information
that is not subject to disclosure under sections 552 and 552a of
title 5, United States Code.
SEC. 1527. INDEPENDENCE OF INSPECTORS GENERAL.
Deadline.
Reports.
(a) INDEPENDENT AUTHORITY.—Nothing in this subtitle shall
affect the independent authority of an inspector general to determine whether to conduct an audit or investigation of covered funds.
(b) REQUESTS BY BOARD.—If the Board requests that an
inspector general conduct or refrain from conducting an audit or
investigation and the inspector general rejects the request in whole
or in part, the inspector general shall, not later than 30 days
after rejecting the request, submit a report to the Board, the head
of the applicable agency, and the congressional committees of jurisdiction, including the Committees on Appropriations of the Senate
and House of Representatives. The report shall state the reasons
that the inspector general has rejected the request in whole or
in part. The inspector general’s decision shall be final.
SEC. 1528. COORDINATION WITH THE COMPTROLLER GENERAL AND
STATE AUDITORS.
The Board shall coordinate its oversight activities with the
Comptroller General of the United States and State auditors.
SEC. 1529. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as necessary
to carry out this subtitle.
SEC. 1530. TERMINATION OF THE BOARD.
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The Board shall terminate on September 30, 2013.
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Subtitle C—Recovery Independent
Advisory Panel
SEC. 1541. ESTABLISHMENT OF RECOVERY INDEPENDENT ADVISORY
PANEL.
(a) ESTABLISHMENT.—There is established the Recovery Independent Advisory Panel.
(b) MEMBERSHIP.—The Panel shall be composed of 5 members
who shall be appointed by the President.
(c) QUALIFICATIONS.—Members shall be appointed on the basis
of expertise in economics, public finance, contracting, accounting,
or any other relevant field.
(d) INITIAL MEETING.—Not later than 30 days after the date
on which all members of the Panel have been appointed, the Panel
shall hold its first meeting.
(e) MEETINGS.—The Panel shall meet at the call of the Chairperson of the Panel.
(f) QUORUM.—A majority of the members of the Panel shall
constitute a quorum, but a lesser number of members may hold
hearings.
(g) CHAIRPERSON AND VICE CHAIRPERSON.—The Panel shall
select a Chairperson and Vice Chairperson from among its members.
President.
Deadline.
SEC. 1542. DUTIES OF THE PANEL.
The Panel shall make recommendations to the Board on actions
the Board could take to prevent fraud, waste, and abuse relating
to covered funds.
Recommendations.
SEC. 1543. POWERS OF THE PANEL.
(a) HEARINGS.—The Panel may hold such hearings, sit and
act at such times and places, take such testimony, and receive
such evidence as the Panel considers advisable to carry out this
subtitle.
(b) INFORMATION FROM FEDERAL AGENCIES.—The Panel may
secure directly from any agency such information as the Panel
considers necessary to carry out this subtitle. Upon request of
the Chairperson of the Panel, the head of such agency shall furnish
such information to the Panel.
(c) POSTAL SERVICES.—The Panel may use the United States
mails in the same manner and under the same conditions as agencies of the Federal Government.
(d) GIFTS.—The Panel may accept, use, and dispose of gifts
or donations of services or property.
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SEC. 1544. PANEL PERSONNEL MATTERS.
(a) COMPENSATION OF MEMBERS.—Each member of the Panel
who is not an officer or employee of the Federal Government shall
be compensated at a rate equal to the daily equivalent of the
annual rate of basic pay prescribed for level IV of the Executive
Schedule under section 5315 of title 5, United States Code, for
each day (including travel time) during which such member is
engaged in the performance of the duties of the Panel. All members
of the Panel who are officers or employees of the United States
shall serve without compensation in addition to that received for
their services as officers or employees of the United States.
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(b) TRAVEL EXPENSES.—The members of the Panel shall be
allowed travel expenses, including per diem in lieu of subsistence,
at rates authorized for employees of agencies under subchapter
I of chapter 57 of title 5, United States Code, while away from
their homes or regular places of business in the performance of
services for the Panel.
(c) STAFF.—
(1) IN GENERAL.—The Chairperson of the Panel may, without regard to the civil service laws and regulations, appoint
and terminate an executive director and such other additional
personnel as may be necessary to enable the Panel to perform
its duties. The employment of an executive director shall be
subject to confirmation by the Panel.
(2) COMPENSATION.—The Chairperson of the Panel may
fix the compensation of the executive director and other personnel without regard to chapter 51 and subchapter III of
chapter 53 of title 5, United States Code, relating to classification of positions and General Schedule pay rates, except that
the rate of pay for the executive director and other personnel
may not exceed the rate payable for level V of the Executive
Schedule under section 5316 of such title.
(3) PERSONNEL AS FEDERAL EMPLOYEES.—
(A) IN GENERAL.—The executive director and any personnel of the Panel who are employees shall be employees
under section 2105 of title 5, United States Code, for purposes of chapters 63, 81, 83, 84, 85, 87, 89, 89A, 89B,
and 90 of that title.
(B) MEMBERS OF PANEL.—Subparagraph (A) shall not
be construed to apply to members of the Panel.
(d) DETAIL OF GOVERNMENT EMPLOYEES.—Any Federal Government employee may be detailed to the Panel without reimbursement, and such detail shall be without interruption or loss of
civil service status or privilege.
(e) PROCUREMENT OF TEMPORARY AND INTERMITTENT SERVICES.—The Chairperson of the Panel may procure temporary and
intermittent services under section 3109(b) of title 5, United States
Code, at rates for individuals which do not exceed the daily equivalent of the annual rate of basic pay prescribed for level V of
the Executive Schedule under section 5316 of such title.
(f) ADMINISTRATIVE SUPPORT.—The General Services Administration shall provide the Panel with administrative support services,
including the provision of office space and facilities.
SEC. 1545. TERMINATION OF THE PANEL.
The Panel shall terminate on September 30, 2013.
SEC. 1546. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as necessary
to carry out this subtitle.
Subtitle D—Additional Accountability and
Transparency Requirements
SEC. 1551. AUTHORITY TO ESTABLISH SEPARATE FUNDING ACCOUNTS.
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Although this Act provides supplemental appropriations for
programs, projects, and activities in existing Treasury accounts,
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to facilitate tracking these funds through Treasury and agency
accounting systems, the Secretary of the Treasury shall ensure
that all funds appropriated in this Act shall be established in
separate Treasury accounts, unless a waiver from this provision
is approved by the Director of the Office of Management and Budget.
SEC.
1552.
SET-ASIDE FOR STATE AND LOCAL
REPORTING AND RECORDKEEPING.
GOVERNMENT
Federal agencies receiving funds under this Act, may, after
following the notice and comment rulemaking requirements under
the Administrative Procedures Act (5 U.S.C. 500), reasonably adjust
applicable limits on administrative expenditures for Federal awards
to help award recipients defray the costs of data collection requirements initiated pursuant to this Act.
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SEC. 1553. PROTECTING STATE AND LOCAL GOVERNMENT AND CONTRACTOR WHISTLEBLOWERS.
(a) PROHIBITION OF REPRISALS.—An employee of any non-Federal employer receiving covered funds may not be discharged,
demoted, or otherwise discriminated against as a reprisal for disclosing, including a disclosure made in the ordinary course of an
employee’s duties, to the Board, an inspector general, the Comptroller General, a member of Congress, a State or Federal regulatory
or law enforcement agency, a person with supervisory authority
over the employee (or such other person working for the employer
who has the authority to investigate, discover, or terminate misconduct), a court or grand jury, the head of a Federal agency,
or their representatives, information that the employee reasonably
believes is evidence of—
(1) gross mismanagement of an agency contract or grant
relating to covered funds;
(2) a gross waste of covered funds;
(3) a substantial and specific danger to public health or
safety related to the implementation or use of covered funds;
(4) an abuse of authority related to the implementation
or use of covered funds; or
(5) a violation of law, rule, or regulation related to an
agency contract (including the competition for or negotiation
of a contract) or grant, awarded or issued relating to covered
funds.
(b) INVESTIGATION OF COMPLAINTS.—
(1) IN GENERAL.—A person who believes that the person
has been subjected to a reprisal prohibited by subsection (a)
may submit a complaint regarding the reprisal to the appropriate inspector general. Except as provided under paragraph
(3), unless the inspector general determines that the complaint
is frivolous, does not relate to covered funds, or another Federal
or State judicial or administrative proceeding has previously
been invoked to resolve such complaint, the inspector general
shall investigate the complaint and, upon completion of such
investigation, submit a report of the findings of the investigation to the person, the person’s employer, the head of the
appropriate agency, and the Board.
(2) TIME LIMITATIONS FOR ACTIONS.—
(A) IN GENERAL.—Except as provided under subparagraph (B), the inspector general shall, not later than 180
days after receiving a complaint under paragraph (1)—
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(i) make a determination that the complaint is
frivolous, does not relate to covered funds, or another
Federal or State judicial or administrative proceeding
has previously been invoked to resolve such complaint;
or
(ii) submit a report under paragraph (1).
(B) EXTENSIONS.—
(i) VOLUNTARY EXTENSION AGREED TO BETWEEN
INSPECTOR
GENERAL
AND
COMPLAINANT.—If
the
inspector general is unable to complete an investigation
under this section in time to submit a report within
the 180-day period specified under subparagraph (A)
and the person submitting the complaint agrees to
an extension of time, the inspector general shall submit
a report under paragraph (1) within such additional
period of time as shall be agreed upon between the
inspector general and the person submitting the complaint.
(ii) EXTENSION GRANTED BY INSPECTOR GENERAL.—
If the inspector general is unable to complete an investigation under this section in time to submit a report
within the 180-day period specified under subparagraph (A), the inspector general may extend the period
for not more than 180 days without agreeing with
the person submitting the complaint to such extension,
provided that the inspector general provides a written
explanation (subject to the authority to exclude
information under paragraph (4)(C)) for the decision,
which shall be provided to both the person submitting
the complaint and the non-Federal employer.
(iii) SEMI-ANNUAL REPORT ON EXTENSIONS.—The
inspector general shall include in semi-annual reports
to Congress a list of those investigations for which
the inspector general received an extension.
(3) DISCRETION NOT TO INVESTIGATE COMPLAINTS.—
(A) IN GENERAL.—The inspector general may decide
not to conduct or continue an investigation under this
section upon providing to the person submitting the complaint and the non-Federal employer a written explanation
(subject to the authority to exclude information under paragraph (4)(C)) for such decision.
(B) ASSUMPTION OF RIGHTS TO CIVIL REMEDY.—Upon
receipt of an explanation of a decision not to conduct or
continue an investigation under subparagraph (A), the person submitting a complaint shall immediately assume the
right to a civil remedy under subsection (c)(3) as if the
210-day period specified under such subsection has already
passed.
(C) SEMI-ANNUAL REPORT.—The inspector general shall
include in semi-annual reports to Congress a list of those
investigations the inspector general decided not to conduct
or continue under this paragraph.
(4) ACCESS TO INVESTIGATIVE FILE OF INSPECTOR GENERAL.—
(A) IN GENERAL.—The person alleging a reprisal under
this section shall have access to the investigation file of
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the appropriate inspector general in accordance with section 552a of title 5, United States Code (commonly referred
to as the ‘‘Privacy Act’’). The investigation of the inspector
general shall be deemed closed for purposes of disclosure
under such section when an employee files an appeal to
an agency head or a court of competent jurisdiction.
(B) CIVIL ACTION.—In the event the person alleging
the reprisal brings suit under subsection (c)(3), the person
alleging the reprisal and the non-Federal employer shall
have access to the investigative file of the inspector general
in accordance with the Privacy Act.
(C) EXCEPTION.—The inspector general may exclude
from disclosure—
(i) information protected from disclosure by a
provision of law; and
(ii) any additional information the inspector general determines disclosure of which would impede a
continuing investigation, provided that such information is disclosed once such disclosure would no longer
impede such investigation, unless the inspector general
determines that disclosure of law enforcement techniques, procedures, or information could reasonably
be expected to risk circumvention of the law or disclose
the identity of a confidential source.
(5) PRIVACY OF INFORMATION.—An inspector general investigating an alleged reprisal under this section may not respond
to any inquiry or disclose any information from or about any
person alleging such reprisal, except in accordance with the
provisions of section 552a of title 5, United States Code, or
as required by any other applicable Federal law.
(c) REMEDY AND ENFORCEMENT AUTHORITY.—
(1) BURDEN OF PROOF.—
(A) DISCLOSURE AS CONTRIBUTING FACTOR IN
REPRISAL.—
(i) IN GENERAL.—A person alleging a reprisal under
this section shall be deemed to have affirmatively
established the occurrence of the reprisal if the person
demonstrates that a disclosure described in subsection
(a) was a contributing factor in the reprisal.
(ii) USE OF CIRCUMSTANTIAL EVIDENCE.—A disclosure may be demonstrated as a contributing factor
in a reprisal for purposes of this paragraph by circumstantial evidence, including—
(I) evidence that the official undertaking the
reprisal knew of the disclosure; or
(II) evidence that the reprisal occurred within
a period of time after the disclosure such that
a reasonable person could conclude that the disclosure was a contributing factor in the reprisal.
(B) OPPORTUNITY FOR REBUTTAL.—The head of an
agency may not find the occurrence of a reprisal with
respect to a reprisal that is affirmatively established under
subparagraph (A) if the non-Federal employer demonstrates by clear and convincing evidence that the nonFederal employer would have taken the action constituting
the reprisal in the absence of the disclosure.
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Deadline.
Determination.
Relief orders.
Deadlines.
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PUBLIC LAW 111–5—FEB. 17, 2009
(2) AGENCY ACTION.—Not later than 30 days after receiving
an inspector general report under subsection (b), the head
of the agency concerned shall determine whether there is sufficient basis to conclude that the non-Federal employer has subjected the complainant to a reprisal prohibited by subsection
(a) and shall either issue an order denying relief in whole
or in part or shall take 1 or more of the following actions:
(A) Order the employer to take affirmative action to
abate the reprisal.
(B) Order the employer to reinstate the person to the
position that the person held before the reprisal, together
with the compensation (including back pay), compensatory
damages, employment benefits, and other terms and conditions of employment that would apply to the person in
that position if the reprisal had not been taken.
(C) Order the employer to pay the complainant an
amount equal to the aggregate amount of all costs and
expenses (including attorneys’ fees and expert witnesses’
fees) that were reasonably incurred by the complainant
for, or in connection with, bringing the complaint regarding
the reprisal, as determined by the head of the agency
or a court of competent jurisdiction.
(3) CIVIL ACTION.—If the head of an agency issues an
order denying relief in whole or in part under paragraph (1),
has not issued an order within 210 days after the submission
of a complaint under subsection (b), or in the case of an extension of time under subsection (b)(2)(B)(i), within 30 days after
the expiration of the extension of time, or decides under subsection (b)(3) not to investigate or to discontinue an investigation, and there is no showing that such delay or decision is
due to the bad faith of the complainant, the complainant shall
be deemed to have exhausted all administrative remedies with
respect to the complaint, and the complainant may bring a
de novo action at law or equity against the employer to seek
compensatory damages and other relief available under this
section in the appropriate district court of the United States,
which shall have jurisdiction over such an action without regard
to the amount in controversy. Such an action shall, at the
request of either party to the action, be tried by the court
with a jury.
(4) JUDICIAL ENFORCEMENT OF ORDER.—Whenever a person
fails to comply with an order issued under paragraph (2),
the head of the agency shall file an action for enforcement
of such order in the United States district court for a district
in which the reprisal was found to have occurred. In any
action brought under this paragraph, the court may grant
appropriate relief, including injunctive relief, compensatory and
exemplary damages, and attorneys fees and costs.
(5) JUDICIAL REVIEW.—Any person adversely affected or
aggrieved by an order issued under paragraph (2) may obtain
review of the order’s conformance with this subsection, and
any regulations issued to carry out this section, in the United
States court of appeals for a circuit in which the reprisal
is alleged in the order to have occurred. No petition seeking
such review may be filed more than 60 days after issuance
of the order by the head of the agency. Review shall conform
to chapter 7 of title 5, United States Code.
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 301
(d) NONENFORCEABILITY OF CERTAIN PROVISIONS WAIVING
RIGHTS AND REMEDIES OR REQUIRING ARBITRATION OF DISPUTES.—
(1) WAIVER OF RIGHTS AND REMEDIES.—Except as provided
under paragraph (3), the rights and remedies provided for
in this section may not be waived by any agreement, policy,
form, or condition of employment, including by any predispute
arbitration agreement.
(2) PREDISPUTE ARBITRATION AGREEMENTS.—Except as provided under paragraph (3), no predispute arbitration agreement
shall be valid or enforceable if it requires arbitration of a
dispute arising under this section.
(3) EXCEPTION FOR COLLECTIVE BARGAINING AGREEMENTS.—
Notwithstanding paragraphs (1) and (2), an arbitration provision in a collective bargaining agreement shall be enforceable
as to disputes arising under the collective bargaining agreement.
(e) REQUIREMENT TO POST NOTICE OF RIGHTS AND REMEDIES.—
Any employer receiving covered funds shall post notice of the rights
and remedies provided under this section.
(f) RULES OF CONSTRUCTION.—
(1) NO IMPLIED AUTHORITY TO RETALIATE FOR NON-PROTECTED DISCLOSURES.—Nothing in this section may be construed to authorize the discharge of, demotion of, or discrimination against an employee for a disclosure other than a disclosure
protected by subsection (a) or to modify or derogate from a
right or remedy otherwise available to the employee.
(2) RELATIONSHIP TO STATE LAWS.—Nothing in this section
may be construed to preempt, preclude, or limit the protections
provided for public or private employees under State whistleblower laws.
(g) DEFINITIONS.—In this section:
(1) ABUSE OF AUTHORITY.—The term ‘‘abuse of authority’’
means an arbitrary and capricious exercise of authority by
a contracting official or employee that adversely affects the
rights of any person, or that results in personal gain or advantage to the official or employee or to preferred other persons.
(2) COVERED FUNDS.—The term ‘‘covered funds’’ means any
contract, grant, or other payment received by any non-Federal
employer if—
(A) the Federal Government provides any portion of
the money or property that is provided, requested, or
demanded; and
(B) at least some of the funds are appropriated or
otherwise made available by this Act.
(3) EMPLOYEE.—The term ‘‘employee’’—
(A) except as provided under subparagraph (B), means
an individual performing services on behalf of an employer;
and
(B) does not include any Federal employee or member
of the uniformed services (as that term is defined in section
101(a)(5) of title 10, United States Code).
(4) NON-FEDERAL EMPLOYER.—The term ‘‘non-Federal
employer’’—
(A) means any employer—
(i) with respect to covered funds—
(I) the contractor, subcontractor, grantee, or
recipient, as the case may be, if the contractor,
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PUBLIC LAW 111–5—FEB. 17, 2009
subcontractor, grantee, or recipient is an employer;
and
(II) any professional membership organization,
certification or other professional body, any agent
or licensee of the Federal government, or any person acting directly or indirectly in the interest
of an employer receiving covered funds; or
(ii) with respect to covered funds received by a
State or local government, the State or local government receiving the funds and any contractor or subcontractor of the State or local government; and
(B) does not mean any department, agency, or other
entity of the Federal Government.
(5) STATE OR LOCAL GOVERNMENT.—The term ‘‘State or
local government’’ means—
(A) the government of each of the several States, the
District of Columbia, the Commonwealth of Puerto Rico,
Guam, American Samoa, the Virgin Islands, the Commonwealth of the Northern Mariana Islands, or any other
territory or possession of the United States; or
(B) the government of any political subdivision of a
government listed in subparagraph (A).
SEC. 1554. SPECIAL CONTRACTING PROVISIONS.
To the maximum extent possible, contracts funded under this
Act shall be awarded as fixed-price contracts through the use of
competitive procedures. A summary of any contract awarded with
such funds that is not fixed-price and not awarded using competitive
procedures shall be posted in a special section of the website established in section 1526.
TITLE XVI—GENERAL PROVISIONS—THIS ACT
RELATIONSHIP TO OTHER APPROPRIATIONS
SEC. 1601. Each amount appropriated or made available in
this Act is in addition to amounts otherwise appropriated for the
fiscal year involved. Enactment of this Act shall have no effect
on the availability of amounts under the Continuing Appropriations
Resolution, 2009 (division A of Public Law 110–329).
PREFERENCE FOR QUICK-START ACTIVITIES
SEC. 1602. In using funds made available in this Act for infrastructure investment, recipients shall give preference to activities
that can be started and completed expeditiously, including a goal
of using at least 50 percent of the funds for activities that can
be initiated not later than 120 days after the date of the enactment
of this Act. Recipients shall also use grant funds in a manner
that maximizes job creation and economic benefit.
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PERIOD OF AVAILABILITY
SEC. 1603. All funds appropriated in this Act shall remain
available for obligation until September 30, 2010, unless expressly
provided otherwise in this Act.
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 303
LIMIT ON FUNDS
SEC. 1604. None of the funds appropriated or otherwise made
available in this Act may be used by any State or local government,
or any private entity, for any casino or other gambling establishment, aquarium, zoo, golf course, or swimming pool.
BUY AMERICAN
SEC. 1605. USE OF AMERICAN IRON, STEEL, AND MANUFACTURED
GOODS. (a) None of the funds appropriated or otherwise made
available by this Act may be used for a project for the construction,
alteration, maintenance, or repair of a public building or public
work unless all of the iron, steel, and manufactured goods used
in the project are produced in the United States.
(b) Subsection (a) shall not apply in any case or category
of cases in which the head of the Federal department or agency
involved finds that—
(1) applying subsection (a) would be inconsistent with the
public interest;
(2) iron, steel, and the relevant manufactured goods are
not produced in the United States in sufficient and reasonably
available quantities and of a satisfactory quality; or
(3) inclusion of iron, steel, and manufactured goods produced in the United States will increase the cost of the overall
project by more than 25 percent.
(c) If the head of a Federal department or agency determines
that it is necessary to waive the application of subsection (a) based
on a finding under subsection (b), the head of the department
or agency shall publish in the Federal Register a detailed written
justification as to why the provision is being waived.
(d) This section shall be applied in a manner consistent with
United States obligations under international agreements.
Waiver authority.
Federal Register,
publication.
Applicability.
WAGE RATE REQUIREMENTS
SEC. 1606. Notwithstanding any other provision of law and
in a manner consistent with other provisions in this Act, all laborers
and mechanics employed by contractors and subcontractors on
projects funded directly by or assisted in whole or in part by
and through the Federal Government pursuant to this Act shall
be paid wages at rates not less than those prevailing on projects
of a character similar in the locality as determined by the Secretary
of Labor in accordance with subchapter IV of chapter 31 of title
40, United States Code. With respect to the labor standards specified in this section, the Secretary of Labor shall have the authority
and functions set forth in Reorganization Plan Numbered 14 of
1950 (64 Stat. 1267; 5 U.S.C. App.) and section 3145 of title 40,
United States Code.
Contracts.
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ADDITIONAL FUNDING DISTRIBUTION AND ASSURANCE OF
APPROPRIATE USE OF FUNDS
SEC. 1607. (a) CERTIFICATION BY GOVERNOR.—Not later than
45 days after the date of enactment of this Act, for funds provided
to any State or agency thereof, the Governor of the State shall
certify that: (1) the State will request and use funds provided
by this Act; and (2) the funds will be used to create jobs and
promote economic growth.
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123 STAT. 304
PUBLIC LAW 111–5—FEB. 17, 2009
(b) ACCEPTANCE BY STATE LEGISLATURE.—If funds provided
to any State in any division of this Act are not accepted for use
by the Governor, then acceptance by the State legislature, by means
of the adoption of a concurrent resolution, shall be sufficient to
provide funding to such State.
(c) DISTRIBUTION.—After the adoption of a State legislature’s
concurrent resolution, funding to the State will be for distribution
to local governments, councils of government, public entities, and
public-private entities within the State either by formula or at
the State’s discretion.
ECONOMIC STABILIZATION CONTRACTING
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Reports.
Deadlines.
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SEC. 1608. REFORM OF CONTRACTING PROCEDURES UNDER
EESA. Section 107(b) of the Emergency Economic Stabilization
Act of 2008 (12 U.S.C. 5217(b)) is amended by inserting ‘‘and
individuals with disabilities and businesses owned by individuals
with disabilities (for purposes of this subsection the term ‘individual
with disability’ has the same meaning as the term ‘handicapped
individual’ as that term is defined in section 3(f) of the Small
Business Act (15 U.S.C. 632(f)),’’ after ‘‘(12 U.S.C. 1441a(r)(4)),’’.
SEC. 1609. (a) FINDINGS.—
(1) The National Environmental Policy Act protects public
health, safety and environmental quality: by ensuring transparency, accountability and public involvement in federal
actions and in the use of public funds;
(2) When President Nixon signed the National Environmental Policy Act into law on January 1, 1970, he said that
the Act provided the ‘‘direction’’ for the country to ‘‘regain
a productive harmony between man and nature’’;
(3) The National Environmental Policy Act helps to provide
an orderly process for considering federal actions and funding
decisions and prevents ligation and delay that would otherwise
be inevitable and existed prior to the establishment of the
National Environmental Policy Act.
(b) Adequate resources within this bill must be devoted to
ensuring that applicable environmental reviews under the National
Environmental Policy Act are completed on an expeditious basis
and that the shortest existing applicable process under the National
Environmental Policy Act shall be utilized.
(c) The President shall report to the Senate Environment and
Public Works Committee and the House Natural Resources Committee every 90 days following the date of enactment until September 30, 2011 on the status and progress of projects and activities
funded by this Act with respect to compliance with National
Environmental Policy Act requirements and documentation.
SEC. 1610. (a) None of the funds appropriated or otherwise
made available by this Act, for projects initiated after the effective
date of this Act, may be used by an executive agency to enter
into any Federal contract unless such contract is entered into in
accordance with the Federal Property and Administrative Services
Act (41 U.S.C. 253) or chapter 137 of title 10, United States Code,
and the Federal Acquisition Regulation, unless such contract is
otherwise authorized by statute to be entered into without regard
to the above referenced statutes.
(b) All projects to be conducted under the authority of the
Indian Self-Determination and Education Assistance Act, the Tribally-Controlled Schools Act, the Sanitation and Facilities Act, the
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123 STAT. 305
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Native American Housing and Self-Determination Assistance Act
and the Buy-Indian Act shall be identified by the appropriate Secretary and the appropriate Secretary shall incorporate provisions
to ensure that the agreement conforms with the provisions of this
Act regarding the timing for use of funds and transparency, oversight, reporting, and accountability, including review by the Inspectors General, the Accountability and Transparency Board, and
Government Accountability Office, consistent with the objectives
of this Act.
SEC. 1611. HIRING AMERICAN WORKERS IN COMPANIES
RECEIVING TARP FUNDING. (a) SHORT TITLE.—This section may
be cited as the ‘‘Employ American Workers Act’’.
(b) PROHIBITION.—
(1) IN GENERAL.—Notwithstanding any other provision of
law, it shall be unlawful for any recipient of funding under
title I of the Emergency Economic Stabilization Act of 2008
(Public Law 110–343) or section 13 of the Federal Reserve
Act (12 U.S.C. 342 et seq.) to hire any nonimmigrant described
in section 101(a)(15)(h)(i)(b) of the Immigration and Nationality
Act (8 U.S.C. 1101(a)(15)(h)(i)(b)) unless the recipient is in
compliance with the requirements for an H–1B dependent
employer (as defined in section 212(n)(3) of such Act (8 U.S.C.
1182(n)(3))), except that the second sentence of section
212(n)(1)(E)(ii) of such Act shall not apply.
(2) DEFINED TERM.—In this subsection, the term ‘‘hire’’
means to permit a new employee to commence a period of
employment.
(c) SUNSET PROVISION.—This section shall be effective during
the 2-year period beginning on the date of the enactment of this
Act.
SEC. 1612. During the current fiscal year not to exceed 1
percent of any appropriation made available by this Act may be
transferred by an agency head between such appropriations funded
in this Act of that department or agency: Provided, That such
appropriations shall be merged with and available for the same
purposes, and for the same time period, as the appropriation to
which transferred: Provided further, That the agency head shall
notify the Committees on Appropriations of the Senate and House
of Representatives of the transfer 15 days in advance: Provided
further, That notice of any transfer made pursuant to this authority
be posted on the website established by the Recovery Act Accountability and Transparency Board 15 days following such transfer:
Provided further, That the authority contained in this section is
in addition to transfer authorities otherwise available under current
law: Provided further, That the authority provided in this section
shall not apply to any appropriation that is subject to transfer
provisions included elsewhere in this Act.
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Employ
American
Workers Act.
Notification.
Deadline.
Notification.
Web posting.
Deadline.
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PUBLIC LAW 111–5—FEB. 17, 2009
DIVISION
B—TAX,
UNEMPLOYMENT,
HEALTH, STATE FISCAL RELIEF, AND
OTHER PROVISIONS
American
Recovery and
Reinvestment
Tax Act of 2009.
26 USC 1 note.
26 USC 1 et seq.
TITLE I—TAX PROVISIONS
SEC. 1000. SHORT TITLE, ETC.
(a) SHORT TITLE.—This title may be cited as the ‘‘American
Recovery and Reinvestment Tax Act of 2009’’.
(b) REFERENCE.—Except as otherwise expressly provided, whenever in this title an amendment or repeal is expressed in terms
of an amendment to, or repeal of, a section or other provision,
the reference shall be considered to be made to a section or other
provision of the Internal Revenue Code of 1986.
(c) TABLE OF CONTENTS.—The table of contents for this title
is as follows:
TITLE I—TAX PROVISIONS
Sec. 1000. Short title, etc.
Subtitle A—Tax Relief for Individuals and Families
PART I—GENERAL TAX RELIEF
Making work pay credit.
Temporary increase in earned income tax credit.
Temporary increase of refundable portion of child credit.
American opportunity tax credit.
Computer technology and equipment allowed as a qualified higher education expense for section 529 accounts in 2009 and 2010.
Sec. 1006. Extension of and increase in first-time homebuyer credit; waiver of requirement to repay.
Sec. 1007. Suspension of tax on portion of unemployment compensation.
Sec. 1008. Additional deduction for State sales tax and excise tax on the purchase
of certain motor vehicles.
Sec.
Sec.
Sec.
Sec.
Sec.
1001.
1002.
1003.
1004.
1005.
PART II—ALTERNATIVE MINIMUM TAX RELIEF
Sec. 1011. Extension of alternative minimum tax relief for nonrefundable personal
credits.
Sec. 1012. Extension of increased alternative minimum tax exemption amount.
Subtitle B—Energy Incentives
Sec. 1101.
Sec. 1102.
Sec. 1103.
Sec. 1104.
PART I—RENEWABLE ENERGY INCENTIVES
Extension of credit for electricity produced from certain renewable resources.
Election of investment credit in lieu of production credit.
Repeal of certain limitations on credit for renewable energy property.
Coordination with renewable energy grants.
PART II—INCREASED ALLOCATIONS OF NEW CLEAN RENEWABLE ENERGY BONDS AND
QUALIFIED ENERGY CONSERVATION BONDS
Sec. 1111. Increased limitation on issuance of new clean renewable energy bonds.
Sec. 1112. Increased limitation on issuance of qualified energy conservation bonds.
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PART III—ENERGY CONSERVATION INCENTIVES
Sec. 1121. Extension and modification of credit for nonbusiness energy property.
Sec. 1122. Modification of credit for residential energy efficient property.
Sec. 1123. Temporary increase in credit for alternative fuel vehicle refueling property.
PART IV—MODIFICATION OF CREDIT FOR CARBON DIOXIDE SEQUESTRATION
Sec. 1131. Application of monitoring requirements to carbon dioxide used as a tertiary injectant.
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PUBLIC LAW 111–5—FEB. 17, 2009
Sec.
Sec.
Sec.
Sec.
1141.
1142.
1143.
1144.
123 STAT. 307
PART V—PLUG-IN ELECTRIC DRIVE MOTOR VEHICLES
Credit for new qualified plug-in electric drive motor vehicles.
Credit for certain plug-in electric vehicles.
Conversion kits.
Treatment of alternative motor vehicle credit as a personal credit allowed against AMT.
PART VI—PARITY FOR TRANSPORTATION FRINGE BENEFITS
Sec. 1151. Increased exclusion amount for commuter transit benefits and transit
passes.
Subtitle C—Tax Incentives for Business
PART I—TEMPORARY INVESTMENT INCENTIVES
Sec. 1201. Special allowance for certain property acquired during 2009.
Sec. 1202. Temporary increase in limitations on expensing of certain depreciable
business assets.
PART II—SMALL BUSINESS PROVISIONS
Sec. 1211. 5-year carryback of operating losses of small businesses.
Sec. 1212. Decreased required estimated tax payments in 2009 for certain small
businesses.
PART III—INCENTIVES FOR NEW JOBS
Sec. 1221. Incentives to hire unemployed veterans and disconnected youth.
PART IV—RULES RELATING TO DEBT INSTRUMENTS
Sec. 1231. Deferral and ratable inclusion of income arising from business indebtedness discharged by the reacquisition of a debt instrument.
Sec. 1232. Modifications of rules for original issue discount on certain high yield obligations.
PART V—QUALIFIED SMALL BUSINESS STOCK
Sec. 1241. Special rules applicable to qualified small business stock for 2009 and
2010.
PART VI—S CORPORATIONS
Sec. 1251. Temporary reduction in recognition period for built-in gains tax.
PART VII—RULES RELATING TO OWNERSHIP CHANGES
Sec. 1261. Clarification of regulations related to limitations on certain built-in
losses following an ownership change.
Sec. 1262. Treatment of certain ownership changes for purposes of limitations on
net operating loss carryforwards and certain built-in losses.
Subtitle D—Manufacturing Recovery Provisions
Sec. 1301. Temporary expansion of availability of industrial development bonds to
facilities manufacturing intangible property.
Sec. 1302. Credit for investment in advanced energy facilities.
Sec.
Sec.
Sec.
Sec.
1401.
1402.
1403.
1404.
Subtitle E—Economic Recovery Tools
Recovery zone bonds.
Tribal economic development bonds.
Increase in new markets tax credit.
Coordination of low-income housing credit and low-income housing
grants.
Subtitle F—Infrastructure Financing Tools
Sec. 1501.
Sec. 1502.
Sec. 1503.
Sec. 1504.
PART I—IMPROVED MARKETABILITY FOR TAX-EXEMPT BONDS
De minimis safe harbor exception for tax-exempt interest expense of financial institutions.
Modification of small issuer exception to tax-exempt interest expense allocation rules for financial institutions.
Temporary modification of alternative minimum tax limitations on taxexempt bonds.
Modification to high speed intercity rail facility bonds.
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PART II—DELAY
APPLICATION OF WITHHOLDING TAX ON GOVERNMENT
CONTRACTORS
Sec. 1511. Delay in application of withholding tax on government contractors.
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123 STAT. 308
PUBLIC LAW 111–5—FEB. 17, 2009
PART III—TAX CREDIT BONDS FOR SCHOOLS
Sec. 1521. Qualified school construction bonds.
Sec. 1522. Extension and expansion of qualified zone academy bonds.
PART IV—BUILD AMERICA BONDS
Sec. 1531. Build America bonds.
PART V—REGULATED INVESTMENT COMPANIES ALLOWED TO PASS-THRU TAX CREDIT
BOND CREDITS
Sec. 1541. Regulated investment companies allowed to pass-thru tax credit bond
credits.
Subtitle G—Other Provisions
Sec. 1601. Application of certain labor standards to projects financed with certain
tax-favored bonds.
Sec. 1602. Grants to States for low-income housing projects in lieu of low-income
housing credit allocations for 2009.
Sec. 1603. Grants for specified energy property in lieu of tax credits.
Sec. 1604. Increase in public debt limit.
Subtitle H—Prohibition on Collection of Certain Payments Made Under the
Continued Dumping and Subsidy Offset Act of 2000
Sec. 1701. Prohibition on collection of certain payments made under the Continued
Dumping and Subsidy Offset Act of 2000.
Subtitle I—Trade Adjustment Assistance
Sec. 1800. Short title.
PART I—TRADE ADJUSTMENT ASSISTANCE
FOR
WORKERS
SUBPART A—TRADE ADJUSTMENT ASSISTANCE FOR SERVICE SECTOR WORKERS
Sec. 1801. Extension of trade adjustment assistance to service sector and public
agency workers; shifts in production.
Sec. 1802. Separate basis for certification.
Sec. 1803. Determinations by Secretary of Labor.
Sec. 1804. Monitoring and reporting relating to service sector.
SUBPART B—INDUSTRY NOTIFICATIONS FOLLOWING CERTAIN AFFIRMATIVE
DETERMINATIONS
Sec. 1811. Notifications following certain affirmative determinations.
Sec. 1812. Notification to Secretary of Commerce.
SUBPART C—PROGRAM BENEFITS
Sec. 1821. Qualifying Requirements for Workers.
Sec. 1822. Weekly amounts.
Sec. 1823. Limitations on trade readjustment allowances; allowances for extended
training and breaks in training.
Sec. 1824. Special rules for calculation of eligibility period.
Sec. 1825. Application of State laws and regulations on good cause for waiver of
time limits or late filing of claims.
Sec. 1826. Employment and case management services.
Sec. 1827. Administrative expenses and employment and case management services.
Sec. 1828. Training funding.
Sec. 1829. Prerequisite education; approved training programs.
Sec. 1830. Pre-layoff and part-time training.
Sec. 1831. On-the-job training.
Sec. 1832. Eligibility for unemployment insurance and program benefits while in
training.
Sec. 1833. Job search and relocation allowances.
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SUBPART D—REEMPLOYMENT TRADE ADJUSTMENT ASSISTANCE
Sec. 1841. Reemployment trade adjustment assistance program.
PROGRAM
SUBPART E—OTHER MATTERS
Sec. 1851. Office of Trade Adjustment Assistance.
Sec. 1852. Accountability of State agencies; collection and publication of program
data; agreements with States.
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Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
1853.
1854.
1855.
1856.
1857.
1858.
Verification of eligibility for program benefits.
Collection of data and reports; information to workers.
Fraud and recovery of overpayments.
Sense of Congress on application of trade adjustment assistance.
Consultations in promulgation of regulations.
Technical corrections.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
1861.
1862.
1863.
1864.
1865.
1866.
1867.
PART II—TRADE ADJUSTMENT ASSISTANCE FOR FIRMS
Expansion to service sector firms.
Modification of requirements for certification.
Basis for determinations.
Oversight and administration; authorization of appropriations.
Increased penalties for false statements.
Annual report on trade adjustment assistance for firms.
Technical corrections.
123 STAT. 309
PART III—TRADE ADJUSTMENT ASSISTANCE FOR COMMUNITIES
Sec. 1871. Purpose.
Sec. 1872. Trade adjustment assistance for communities.
Sec. 1873. Conforming amendments.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
1881.
1882.
1883.
1884.
1885.
1886.
1887.
PART IV—TRADE ADJUSTMENT ASSISTANCE FOR FARMERS
Definitions.
Eligibility.
Benefits.
Report.
Fraud and recovery of overpayments.
Determination of increases of imports for certain fishermen.
Extension of trade adjustment assistance for farmers.
Sec.
Sec.
Sec.
Sec.
Sec.
1891.
1892.
1893.
1894.
1895.
PART V—GENERAL PROVISIONS
Effective date.
Extension of trade adjustment assistance programs.
Termination; related provisions.
Government Accountability Office report.
Emergency designation.
PART VI—HEALTH COVERAGE IMPROVEMENT
Sec. 1899. Short title.
Sec. 1899A. Improvement of the affordability of the credit.
Sec. 1899B. Payment for monthly premiums paid prior to commencement of advance payments of credit.
Sec. 1899C. TAA recipients not enrolled in training programs eligible for credit.
Sec. 1899D. TAA pre-certification period rule for purposes of determining whether
there is a 63-day lapse in creditable coverage.
Sec. 1899E. Continued qualification of family members after certain events.
Sec. 1899F. Extension of COBRA benefits for certain TAA-eligible individuals and
PBGC recipients.
Sec. 1899G. Addition of coverage through voluntary employees’ beneficiary associations.
Sec. 1899H. Notice requirements.
Sec. 1899I. Survey and report on enhanced health coverage tax credit program.
Sec. 1899J. Authorization of appropriations.
Sec. 1899K. Extension of national emergency grants.
Sec. 1899L. GAO study and report.
Subtitle A—Tax Relief for Individuals and
Families
PART I—GENERAL TAX RELIEF
SEC. 1001. MAKING WORK PAY CREDIT.
(a) IN GENERAL.—Subpart C of part IV of subchapter A of
chapter 1 is amended by inserting after section 36 the following
new section:
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‘‘SEC. 36A. MAKING WORK PAY CREDIT.
‘‘(a) ALLOWANCE OF CREDIT.—In the case of an eligible individual, there shall be allowed as a credit against the tax imposed
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by this subtitle for the taxable year an amount equal to the lesser
of—
‘‘(1) 6.2 percent of earned income of the taxpayer, or
‘‘(2) $400 ($800 in the case of a joint return).
‘‘(b) LIMITATION BASED ON MODIFIED ADJUSTED GROSS
INCOME.—
‘‘(1) IN GENERAL.—The amount allowable as a credit under
subsection (a) (determined without regard to this paragraph
and subsection (c)) for the taxable year shall be reduced (but
not below zero) by 2 percent of so much of the taxpayer’s
modified adjusted gross income as exceeds $75,000 ($150,000
in the case of a joint return).
‘‘(2) MODIFIED ADJUSTED GROSS INCOME.—For purposes of
subparagraph (A), the term ‘modified adjusted gross income’
means the adjusted gross income of the taxpayer for the taxable
year increased by any amount excluded from gross income
under section 911, 931, or 933.
‘‘(c) REDUCTION FOR CERTAIN OTHER PAYMENTS.—The credit
allowed under subsection (a) for any taxable year shall be reduced
by the amount of any payments received by the taxpayer during
such taxable year under section 2201, and any credit allowed to
the taxpayer under section 2202, of the American Recovery and
Reinvestment Tax Act of 2009.
‘‘(d) DEFINITIONS AND SPECIAL RULES.—For purposes of this
section—
‘‘(1) ELIGIBLE INDIVIDUAL.—
‘‘(A) IN GENERAL.—The term ‘eligible individual’ means
any individual other than—
‘‘(i) any nonresident alien individual,
‘‘(ii) any individual with respect to whom a deduction under section 151 is allowable to another taxpayer
for a taxable year beginning in the calendar year in
which the individual’s taxable year begins, and
‘‘(iii) an estate or trust.
‘‘(B) IDENTIFICATION NUMBER REQUIREMENT.—Such
term shall not include any individual who does not include
on the return of tax for the taxable year—
‘‘(i) such individual’s social security account
number, and
‘‘(ii) in the case of a joint return, the social security
account number of one of the taxpayers on such return.
For purposes of the preceding sentence, the social security
account number shall not include a TIN issued by the
Internal Revenue Service.
‘‘(2) EARNED INCOME.—The term ‘earned income’ has the
meaning given such term by section 32(c)(2), except that such
term shall not include net earnings from self-employment which
are not taken into account in computing taxable income. For
purposes of the preceding sentence, any amount excluded from
gross income by reason of section 112 shall be treated as
earned income which is taken into account in computing taxable
income for the taxable year.
‘‘(e) TERMINATION.—This section shall not apply to taxable years
beginning after December 31, 2010.’’.
(b) TREATMENT OF POSSESSIONS.—
(1) PAYMENTS TO POSSESSIONS.—
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123 STAT. 311
(A) MIRROR CODE POSSESSION.—The Secretary of the
Treasury shall pay to each possession of the United States
with a mirror code tax system amounts equal to the loss
to that possession by reason of the amendments made
by this section with respect to taxable years beginning
in 2009 and 2010. Such amounts shall be determined by
the Secretary of the Treasury based on information provided by the government of the respective possession.
(B) OTHER POSSESSIONS.—The Secretary of the
Treasury shall pay to each possession of the United States
which does not have a mirror code tax system amounts
estimated by the Secretary of the Treasury as being equal
to the aggregate benefits that would have been provided
to residents of such possession by reason of the amendments made by this section for taxable years beginning
in 2009 and 2010 if a mirror code tax system had been
in effect in such possession. The preceding sentence shall
not apply with respect to any possession of the United
States unless such possession has a plan, which has been
approved by the Secretary of the Treasury, under which
such possession will promptly distribute such payments
to the residents of such possession.
(2) COORDINATION WITH CREDIT ALLOWED AGAINST UNITED
STATES INCOME TAXES.—No credit shall be allowed against
United States income taxes for any taxable year under section
36A of the Internal Revenue Code of 1986 (as added by this
section) to any person—
(A) to whom a credit is allowed against taxes imposed
by the possession by reason of the amendments made by
this section for such taxable year, or
(B) who is eligible for a payment under a plan described
in paragraph (1)(B) with respect to such taxable year.
(3) DEFINITIONS AND SPECIAL RULES.—
(A) POSSESSION OF THE UNITED STATES.—For purposes
of this subsection, the term ‘‘possession of the United
States’’ includes the Commonwealth of Puerto Rico and
the Commonwealth of the Northern Mariana Islands.
(B) MIRROR CODE TAX SYSTEM.—For purposes of this
subsection, the term ‘‘mirror code tax system’’ means, with
respect to any possession of the United States, the income
tax system of such possession if the income tax liability
of the residents of such possession under such system is
determined by reference to the income tax laws of the
United States as if such possession were the United States.
(C) TREATMENT OF PAYMENTS.—For purposes of section
1324(b)(2) of title 31, United States Code, the payments
under this subsection shall be treated in the same manner
as a refund due from the credit allowed under section
36A of the Internal Revenue Code of 1986 (as added by
this section).
(c) REFUNDS DISREGARDED IN THE ADMINISTRATION OF FEDERAL
PROGRAMS AND FEDERALLY ASSISTED PROGRAMS.—Any credit or
refund allowed or made to any individual by reason of section
36A of the Internal Revenue Code of 1986 (as added by this section)
or by reason of subsection (b) of this section shall not be taken
into account as income and shall not be taken into account as
resources for the month of receipt and the following 2 months,
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Effective dates.
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for purposes of determining the eligibility of such individual or
any other individual for benefits or assistance, or the amount or
extent of benefits or assistance, under any Federal program or
under any State or local program financed in whole or in part
with Federal funds.
(d) AUTHORITY RELATING TO CLERICAL ERRORS.—Section
6213(g)(2) is amended by striking ‘‘and’’ at the end of subparagraph
(L)(ii), by striking the period at the end of subparagraph (M) and
inserting ‘‘, and’’, and by adding at the end the following new
subparagraph:
‘‘(N) an omission of the reduction required under section 36A(c) with respect to the credit allowed under section
36A or an omission of the correct social security account
number required under section 36A(d)(1)(B).’’.
(e) CONFORMING AMENDMENTS.—
(1) Section 6211(b)(4)(A) is amended by inserting ‘‘36A,’’
after ‘‘36,’’.
(2) Section 1324(b)(2) of title 31, United States Code, is
amended by inserting ‘‘36A,’’ after ‘‘36,’’.
(3) The table of sections for subpart C of part IV of subchapter A of chapter 1 is amended by inserting after the item
relating to section 36 the following new item:
26 USC 6213.
26 USC 36A note.
‘‘Sec. 36A. Making work pay credit.’’.
(f) EFFECTIVE DATE.—This
section, and the amendments made
by this section, shall apply to taxable years beginning after
December 31, 2008.
SEC. 1002. TEMPORARY INCREASE IN EARNED INCOME TAX CREDIT.
26 USC 32.
Applicability.
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(a) IN GENERAL.—Subsection (b) of section 32 is amended by
adding at the end the following new paragraph:
‘‘(3) SPECIAL RULES FOR 2009 AND 2010.—In the case of
any taxable year beginning in 2009 or 2010—
‘‘(A) INCREASED CREDIT PERCENTAGE FOR 3 OR MORE
QUALIFYING CHILDREN.—In the case of a taxpayer with
3 or more qualifying children, the credit percentage is
45 percent.
‘‘(B) REDUCTION OF MARRIAGE PENALTY.—
‘‘(i) IN GENERAL.—The dollar amount in effect
under paragraph (2)(B) shall be $5,000.
‘‘(ii) INFLATION ADJUSTMENT.—In the case of any
taxable year beginning in 2010, the $5,000 amount
in clause (i) shall be increased by an amount equal
to—
‘‘(I) such dollar amount, multiplied by
‘‘(II) the cost of living adjustment determined
under section 1(f)(3) for the calendar year in which
the taxable year begins determined by substituting
‘calendar year 2008’ for ‘calendar year 1992’ in
subparagraph (B) thereof.
‘‘(iii) ROUNDING.—Subparagraph (A) of subsection
(j)(2) shall apply after taking into account any increase
under clause (ii).’’.
(b) EFFECTIVE DATE.—The amendments made by this section
shall apply to taxable years beginning after December 31, 2008.
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SEC. 1003. TEMPORARY INCREASE OF REFUNDABLE PORTION OF
CHILD CREDIT.
(a) IN GENERAL.—Paragraph (4) of section 24(d) is amended
to read as follows:
‘‘(4) SPECIAL RULE FOR 2009 AND 2010.—Notwithstanding
paragraph (3), in the case of any taxable year beginning in
2009 or 2010, the dollar amount in effect for such taxable
year under paragraph (1)(B)(i) shall be $3,000.’’.
(b) EFFECTIVE DATE.—The amendments made by this section
shall apply to taxable years beginning after December 31, 2008.
26 USC 24.
26 USC 24 note.
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SEC. 1004. AMERICAN OPPORTUNITY TAX CREDIT.
(a) IN GENERAL.—Section 25A (relating to Hope scholarship
credit) is amended by redesignating subsection (i) as subsection
(j) and by inserting after subsection (h) the following new subsection:
‘‘(i) AMERICAN OPPORTUNITY TAX CREDIT.—In the case of any
taxable year beginning in 2009 or 2010—
‘‘(1) INCREASE IN CREDIT.—The Hope Scholarship Credit
shall be an amount equal to the sum of—
‘‘(A) 100 percent of so much of the qualified tuition
and related expenses paid by the taxpayer during the taxable year (for education furnished to the eligible student
during any academic period beginning in such taxable year)
as does not exceed $2,000, plus
‘‘(B) 25 percent of such expenses so paid as exceeds
$2,000 but does not exceed $4,000.
‘‘(2) CREDIT ALLOWED FOR FIRST 4 YEARS OF POST-SECONDARY EDUCATION.—Subparagraphs (A) and (C) of subsection
(b)(2) shall be applied by substituting ‘4’ for ‘2’.
‘‘(3) QUALIFIED TUITION AND RELATED EXPENSES TO INCLUDE
REQUIRED COURSE MATERIALS.—Subsection (f)(1)(A) shall be
applied by substituting ‘tuition, fees, and course materials’ for
‘tuition and fees’.
‘‘(4) INCREASE IN AGI LIMITS FOR HOPE SCHOLARSHIP
CREDIT.—In lieu of applying subsection (d) with respect to the
Hope Scholarship Credit, such credit (determined without
regard to this paragraph) shall be reduced (but not below
zero) by the amount which bears the same ratio to such credit
(as so determined) as—
‘‘(A) the excess of—
‘‘(i) the taxpayer’s modified adjusted gross income
(as defined in subsection (d)(3)) for such taxable year,
over
‘‘(ii) $80,000 ($160,000 in the case of a joint return),
bears to
‘‘(B) $10,000 ($20,000 in the case of a joint return).
‘‘(5) CREDIT ALLOWED AGAINST ALTERNATIVE MINIMUM
TAX.—In the case of a taxable year to which section 26(a)(2)
does not apply, so much of the credit allowed under subsection
(a) as is attributable to the Hope Scholarship Credit shall
not exceed the excess of—
‘‘(A) the sum of the regular tax liability (as defined
in section 26(b)) plus the tax imposed by section 55, over
‘‘(B) the sum of the credits allowable under this subpart
(other than this subsection and sections 23, 25D, and 30D)
and section 27 for the taxable year.
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26 USC 24.
26 USC 25A note.
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Any reference in this section or section 24, 25, 26, 25B, 904,
or 1400C to a credit allowable under this subsection shall
be treated as a reference to so much of the credit allowable
under subsection (a) as is attributable to the Hope Scholarship
Credit.
‘‘(6) PORTION OF CREDIT MADE REFUNDABLE.—40 percent
of so much of the credit allowed under subsection (a) as is
attributable to the Hope Scholarship Credit (determined after
application of paragraph (4) and without regard to this paragraph and section 26(a)(2) or paragraph (5), as the case may
be) shall be treated as a credit allowable under subpart C
(and not allowed under subsection (a)). The preceding sentence
shall not apply to any taxpayer for any taxable year if such
taxpayer is a child to whom subsection (g) of section 1 applies
for such taxable year.
‘‘(7) COORDINATION WITH MIDWESTERN DISASTER AREA BENEFITS.—In the case of a taxpayer with respect to whom section
702(a)(1)(B) of the Heartland Disaster Tax Relief Act of 2008
applies for any taxable year, such taxpayer may elect to waive
the application of this subsection to such taxpayer for such
taxable year.’’.
(b) CONFORMING AMENDMENTS.—
(1) Section 24(b)(3)(B) is amended by inserting ‘‘25A(i),’’
after ‘‘23,’’.
(2) Section 25(e)(1)(C)(ii) is amended by inserting ‘‘25A(i),’’
after ‘‘24,’’.
(3) Section 26(a)(1) is amended by inserting ‘‘25A(i),’’ after
‘‘24,’’.
(4) Section 25B(g)(2) is amended by inserting ‘‘25A(i),’’ after
‘‘23,’’.
(5) Section 904(i) is amended by inserting ‘‘25A(i),’’ after
‘‘24,’’.
(6) Section 1400C(d)(2) is amended by inserting ‘‘25A(i),’’
after ‘‘24,’’.
(7) Section 6211(b)(4)(A) is amended by inserting ‘‘25A by
reason of subsection (i)(6) thereof,’’ after ‘‘24(d),’’.
(8) Section 1324(b)(2) of title 31, United States Code, is
amended by inserting ‘‘25A,’’ before ‘‘35’’.
(c) TREATMENT OF POSSESSIONS.—
(1) PAYMENTS TO POSSESSIONS.—
(A) MIRROR CODE POSSESSION.—The Secretary of the
Treasury shall pay to each possession of the United States
with a mirror code tax system amounts equal to the loss
to that possession by reason of the application of section
25A(i)(6) of the Internal Revenue Code of 1986 (as added
by this section) with respect to taxable years beginning
in 2009 and 2010. Such amounts shall be determined by
the Secretary of the Treasury based on information provided by the government of the respective possession.
(B) OTHER POSSESSIONS.—The Secretary of the
Treasury shall pay to each possession of the United States
which does not have a mirror code tax system amounts
estimated by the Secretary of the Treasury as being equal
to the aggregate benefits that would have been provided
to residents of such possession by reason of the application
of section 25A(i)(6) of such Code (as so added) for taxable
years beginning in 2009 and 2010 if a mirror code tax
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system had been in effect in such possession. The preceding
sentence shall not apply with respect to any possession
of the United States unless such possession has a plan,
which has been approved by the Secretary of the Treasury,
under which such possession will promptly distribute such
payments to the residents of such possession.
(2) COORDINATION WITH CREDIT ALLOWED AGAINST UNITED
STATES INCOME TAXES.—Section 25A(i)(6) of such Code (as added
by this section) shall not apply to a bona fide resident of
any possession of the United States.
(3) DEFINITIONS AND SPECIAL RULES.—
(A) POSSESSION OF THE UNITED STATES.—For purposes
of this subsection, the term ‘‘possession of the United
States’’ includes the Commonwealth of Puerto Rico and
the Commonwealth of the Northern Mariana Islands.
(B) MIRROR CODE TAX SYSTEM.—For purposes of this
subsection, the term ‘‘mirror code tax system’’ means, with
respect to any possession of the United States, the income
tax system of such possession if the income tax liability
of the residents of such possession under such system is
determined by reference to the income tax laws of the
United States as if such possession were the United States.
(C) TREATMENT OF PAYMENTS.—For purposes of section
1324(b)(2) of title 31, United States Code, the payments
under this subsection shall be treated in the same manner
as a refund due from the credit allowed under section
25A of the Internal Revenue Code of 1986 by reason of
subsection (i)(6) of such section (as added by this section).
(d) EFFECTIVE DATE.—The amendments made by this section
shall apply to taxable years beginning after December 31, 2008.
(e) APPLICATION OF EGTRRA SUNSET.—The amendment made
by subsection (b)(1) shall be subject to title IX of the Economic
Growth and Tax Relief Reconciliation Act of 2001 in the same
manner as the provision of such Act to which such amendment
relates.
(f) TREASURY STUDIES REGARDING EDUCATION INCENTIVES.—
(1) STUDY REGARDING COORDINATION WITH NON-TAX STUDENT FINANCIAL ASSISTANCE.—The Secretary of the Treasury
and the Secretary of Education, or their delegates, shall—
(A) study how to coordinate the credit allowed under
section 25A of the Internal Revenue Code of 1986 with
the Federal Pell Grant program under section 401 of the
Higher Education Act of 1965 to maximize their effectiveness at promoting college affordability, and
(B) examine ways to expedite the delivery of the tax
credit.
(2) STUDY REGARDING INCLUSION OF COMMUNITY SERVICE
REQUIREMENTS.—The Secretary of the Treasury and the Secretary of Education, or their delegates, shall study the feasibility of requiring including community service as a condition
of taking their tuition and related expenses into account under
section 25A of the Internal Revenue Code of 1986.
(3) REPORT.—Not later than 1 year after the date of the
enactment of this Act, the Secretary of the Treasury, or the
Secretary’s delegate, shall report to Congress on the results
of the studies conducted under this paragraph.
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26 USC 24 note.
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SEC. 1005. COMPUTER TECHNOLOGY AND EQUIPMENT ALLOWED AS
A QUALIFIED HIGHER EDUCATION EXPENSE FOR SECTION 529 ACCOUNTS IN 2009 AND 2010.
26 USC 529.
26 USC 529 note.
(a) IN GENERAL.—Section 529(e)(3)(A) is amended by striking
‘‘and’’ at the end of clause (i), by striking the period at the end
of clause (ii), and by adding at the end the following:
‘‘(iii) expenses paid or incurred in 2009 or 2010
for the purchase of any computer technology or equipment (as defined in section 170(e)(6)(F)(i)) or Internet
access and related services, if such technology, equipment, or services are to be used by the beneficiary
and the beneficiary’s family during any of the years
the beneficiary is enrolled at an eligible educational
institution.
Clause (iii) shall not include expenses for computer software designed for sports, games, or hobbies unless the
software is predominantly educational in nature.’’.
(b) EFFECTIVE DATE.—The amendments made by this section
shall apply to expenses paid or incurred after December 31, 2008.
SEC. 1006. EXTENSION OF AND INCREASE IN FIRST-TIME HOMEBUYER
CREDIT; WAIVER OF REQUIREMENT TO REPAY.
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(a) EXTENSION.—
(1) IN GENERAL.—Section 36(h) is amended by striking
‘‘July 1, 2009’’ and inserting ‘‘December 1, 2009’’.
(2) CONFORMING AMENDMENT.—Section 36(g) is amended
by striking ‘‘July 1, 2009’’ and inserting ‘‘December 1, 2009’’.
(b) INCREASE.—
(1) IN GENERAL.—Section 36(b) is amended by striking
‘‘$7,500’’ each place it appears and inserting ‘‘$8,000’’.
(2) CONFORMING AMENDMENT.—Section 36(b)(1)(B) is
amended by striking ‘‘$3,750’’ and inserting ‘‘$4,000’’.
(c) WAIVER OF RECAPTURE.—
(1) IN GENERAL.—Paragraph (4) of section 36(f) is amended
by adding at the end the following new subparagraph:
‘‘(D) WAIVER OF RECAPTURE FOR PURCHASES IN 2009.—
In the case of any credit allowed with respect to the purchase of a principal residence after December 31, 2008,
and before December 1, 2009—
‘‘(i) paragraph (1) shall not apply, and
‘‘(ii) paragraph (2) shall apply only if the disposition or cessation described in paragraph (2) with
respect to such residence occurs during the 36-month
period beginning on the date of the purchase of such
residence by the taxpayer.’’.
(2) CONFORMING AMENDMENT.—Subsection (g) of section
36 is amended by striking ‘‘subsection (c)’’ and inserting ‘‘subsections (c) and (f)(4)(D)’’.
(d) COORDINATION WITH FIRST-TIME HOMEBUYER CREDIT FOR
DISTRICT OF COLUMBIA.—
(1) IN GENERAL.—Subsection (e) of section 1400C is
amended by adding at the end the following new paragraph:
‘‘(4) COORDINATION WITH NATIONAL FIRST-TIME HOMEBUYERS
CREDIT.—No credit shall be allowed under this section to any
taxpayer with respect to the purchase of a residence after
December 31, 2008, and before December 1, 2009, if a credit
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 317
under section 36 is allowable to such taxpayer (or the taxpayer’s
spouse) with respect to such purchase.’’.
(2) CONFORMING AMENDMENT.—Section 36(d) is amended
by striking paragraph (1).
(e) REMOVAL OF PROHIBITION ON FINANCING BY MORTGAGE REVENUE BONDS.—Section 36(d), as amended by subsection (c)(2), is
amended by striking paragraph (2) and by redesignating paragraphs
(3) and (4) as paragraphs (1) and (2), respectively.
(f) EFFECTIVE DATE.—The amendments made by this section
shall apply to residences purchased after December 31, 2008.
26 USC 36.
26 USC 36 note.
SEC. 1007. SUSPENSION OF TAX ON PORTION OF UNEMPLOYMENT COMPENSATION.
(a) IN GENERAL.—Section 85 of the Internal Revenue Code
of 1986 (relating to unemployment compensation) is amended by
adding at the end the following new subsection:
‘‘(c) SPECIAL RULE FOR 2009.—In the case of any taxable year
beginning in 2009, gross income shall not include so much of the
unemployment compensation received by an individual as does not
exceed $2,400.’’.
(b) EFFECTIVE DATE.—The amendment made by this section
shall apply to taxable years beginning after December 31, 2008.
26 USC 85 note.
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SEC. 1008. ADDITIONAL DEDUCTION FOR STATE SALES TAX AND
EXCISE TAX ON THE PURCHASE OF CERTAIN MOTOR
VEHICLES.
(a) IN GENERAL.—Subsection (a) of section 164 is amended
by inserting after paragraph (5) the following new paragraph:
‘‘(6) Qualified motor vehicle taxes.’’.
(b) QUALIFIED MOTOR VEHICLE TAXES.—Subsection (b) of section 164 is amended by adding at the end the following new paragraph:
‘‘(6) QUALIFIED MOTOR VEHICLE TAXES.—
‘‘(A) IN GENERAL.—For purposes of this section, the
term ‘qualified motor vehicle taxes’ means any State or
local sales or excise tax imposed on the purchase of a
qualified motor vehicle.
‘‘(B) LIMITATION BASED ON VEHICLE PRICE.—The
amount of any State or local sales or excise tax imposed
on the purchase of a qualified motor vehicle taken into
account under subparagraph (A) shall not exceed the portion of such tax attributable to so much of the purchase
price as does not exceed $49,500.
‘‘(C) INCOME LIMITATION.—The amount otherwise taken
into account under subparagraph (A) (after the application
of subparagraph (B)) for any taxable year shall be reduced
(but not below zero) by the amount which bears the same
ratio to the amount which is so treated as—
‘‘(i) the excess (if any) of—
‘‘(I) the taxpayer’s modified adjusted gross
income for such taxable year, over
‘‘(II) $125,000 ($250,000 in the case of a joint
return), bears to
‘‘(ii) $10,000.
For purposes of the preceding sentence, the term ‘modified
adjusted gross income’ means the adjusted gross income
of the taxpayer for the taxable year (determined without
regard to sections 911, 931, and 933).
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26 USC 63.
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26 USC 56 note.
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PUBLIC LAW 111–5—FEB. 17, 2009
‘‘(D) QUALIFIED MOTOR VEHICLE.—For purposes of this
paragraph—
‘‘(i) IN GENERAL.—The term ‘qualified motor
vehicle’ means—
‘‘(I) a passenger automobile or light truck
which is treated as a motor vehicle for purposes
of title II of the Clean Air Act, the gross vehicle
weight rating of which is not more than 8,500
pounds, and the original use of which commences
with the taxpayer,
‘‘(II) a motorcycle the gross vehicle weight
rating of which is not more than 8,500 pounds
and the original use of which commences with
the taxpayer, and
‘‘(III) a motor home the original use of which
commences with the taxpayer.
‘‘(ii) OTHER TERMS.—The terms ‘motorcycle’ and
‘motor home’ have the meanings given such terms
under section 571.3 of title 49, Code of Federal Regulations (as in effect on the date of the enactment of
this paragraph).
‘‘(E) QUALIFIED MOTOR VEHICLE TAXES NOT INCLUDED
IN COST OF ACQUIRED PROPERTY.—The last sentence of subsection (a) shall not apply to any qualified motor vehicle
taxes.
‘‘(F) COORDINATION WITH GENERAL SALES TAX.—This
paragraph shall not apply in the case of a taxpayer who
makes an election under paragraph (5) for the taxable
year.
‘‘(G) TERMINATION.—This paragraph shall not apply
to purchases after December 31, 2009.’’.
(c) DEDUCTION ALLOWED TO NONITEMIZERS.—
(1) IN GENERAL.—Paragraph (1) of section 63(c) is amended
by striking ‘‘and’’ at the end of subparagraph (C), by striking
the period at the end of subparagraph (D) and inserting ‘‘,
and’’, and by adding at the end the following new subparagraph:
‘‘(E) the motor vehicle sales tax deduction.’’.
(2) DEFINITION.—Section 63(c) is amended by adding at
the end the following new paragraph:
‘‘(9) MOTOR VEHICLE SALES TAX DEDUCTION.—For purposes
of paragraph (1), the term ‘motor vehicle sales tax deduction’
means the amount allowable as a deduction under section
164(a)(6). Such term shall not include any amount taken into
account under section 62(a).’’.
(d) TREATMENT OF DEDUCTION UNDER ALTERNATIVE MINIMUM
TAX.—The last sentence of section 56(b)(1)(E) is amended by
striking ‘‘section 63(c)(1)(D)’’ and inserting ‘‘subparagraphs (D) and
(E) of section 63(c)(1)’’.
(e) EFFECTIVE DATE.—The amendments made by this section
shall apply to purchases on or after the date of the enactment
of this Act in taxable years ending after such date.
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123 STAT. 319
PART II—ALTERNATIVE MINIMUM TAX RELIEF
SEC. 1011. EXTENSION OF ALTERNATIVE MINIMUM TAX RELIEF FOR
NONREFUNDABLE PERSONAL CREDITS.
(a) IN GENERAL.—Paragraph (2) of section 26(a) (relating to
special rule for taxable years 2000 through 2008) is amended—
(1) by striking ‘‘or 2008’’ and inserting ‘‘2008, or 2009’’,
and
(2) by striking ‘‘2008’’ in the heading thereof and inserting
‘‘2009’’.
(b) EFFECTIVE DATE.—The amendments made by this section
shall apply to taxable years beginning after December 31, 2008.
26 USC 26.
26 USC 26 note.
SEC. 1012. EXTENSION OF INCREASED ALTERNATIVE MINIMUM TAX
EXEMPTION AMOUNT.
(a) IN GENERAL.—Paragraph (1) of section 55(d) (relating to
exemption amount) is amended—
(1) by striking ‘‘($69,950 in the case of taxable years beginning in 2008)’’ in subparagraph (A) and inserting ‘‘($70,950
in the case of taxable years beginning in 2009)’’, and
(2) by striking ‘‘($46,200 in the case of taxable years beginning in 2008)’’ in subparagraph (B) and inserting ‘‘($46,700
in the case of taxable years beginning in 2009)’’.
(b) EFFECTIVE DATE.—The amendments made by this section
shall apply to taxable years beginning after December 31, 2008.
26 USC 55 note.
Subtitle B—Energy Incentives
PART I—RENEWABLE ENERGY INCENTIVES
SEC. 1101. EXTENSION OF CREDIT FOR ELECTRICITY PRODUCED FROM
CERTAIN RENEWABLE RESOURCES.
(a) IN GENERAL.—Subsection (d) of section 45 is amended—
(1) by striking ‘‘2010’’ in paragraph (1) and inserting ‘‘2013’’,
(2) by striking ‘‘2011’’ each place it appears in paragraphs
(2), (3), (4), (6), (7) and (9) and inserting ‘‘2014’’, and
(3) by striking ‘‘2012’’ in paragraph (11)(B) and inserting
‘‘2014’’.
(b) TECHNICAL AMENDMENT.—Paragraph (5) of section 45(d)
is amended by striking ‘‘and before’’ and all that follows and
inserting ‘‘ and before October 3, 2008.’’.
(c) EFFECTIVE DATE.—
(1) IN GENERAL.—The amendments made by subsection
(a) shall apply to property placed in service after the date
of the enactment of this Act.
(2) TECHNICAL AMENDMENT.—The amendment made by
subsection (b) shall take effect as if included in section 102
of the Energy Improvement and Extension Act of 2008.
26 USC 45 note.
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SEC. 1102. ELECTION OF INVESTMENT CREDIT IN LIEU OF PRODUCTION CREDIT.
(a) IN GENERAL.—Subsection (a) of section 48 is amended by
adding at the end the following new paragraph:
‘‘(5) ELECTION TO TREAT QUALIFIED FACILITIES AS ENERGY
PROPERTY.—
‘‘(A) IN GENERAL.—In the case of any qualified property
which is part of a qualified investment credit facility—
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123 STAT. 320
26 USC 48 note.
PUBLIC LAW 111–5—FEB. 17, 2009
‘‘(i) such property shall be treated as energy property for purposes of this section, and
‘‘(ii) the energy percentage with respect to such
property shall be 30 percent.
‘‘(B) DENIAL OF PRODUCTION CREDIT.—No credit shall
be allowed under section 45 for any taxable year with
respect to any qualified investment credit facility.
‘‘(C) QUALIFIED INVESTMENT CREDIT FACILITY.—For
purposes of this paragraph, the term ‘qualified investment
credit facility’ means any of the following facilities if no
credit has been allowed under section 45 with respect to
such facility and the taxpayer makes an irrevocable election
to have this paragraph apply to such facility:
‘‘(i) WIND FACILITIES.—Any qualified facility
(within the meaning of section 45) described in paragraph (1) of section 45(d) if such facility is placed
in service in 2009, 2010, 2011, or 2012.
‘‘(ii) OTHER FACILITIES.—Any qualified facility
(within the meaning of section 45) described in paragraph (2), (3), (4), (6), (7), (9), or (11) of section 45(d)
if such facility is placed in service in 2009, 2010, 2011,
2012, or 2013.
‘‘(D) QUALIFIED PROPERTY.—For purposes of this paragraph, the term ‘qualified property’ means property—
‘‘(i) which is—
‘‘(I) tangible personal property, or
‘‘(II) other tangible property (not including a
building or its structural components), but only
if such property is used as an integral part of
the qualified investment credit facility, and
‘‘(ii) with respect to which depreciation (or
amortization in lieu of depreciation) is allowable.’’.
(b) EFFECTIVE DATE.—The amendments made by this section
shall apply to facilities placed in service after December 31, 2008.
SEC. 1103. REPEAL OF CERTAIN LIMITATIONS ON CREDIT FOR RENEWABLE ENERGY PROPERTY.
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26 USC 48.
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(a) REPEAL OF LIMITATION ON CREDIT FOR QUALIFIED SMALL
WIND ENERGY PROPERTY.—Paragraph (4) of section 48(c) is
amended by striking subparagraph (B) and by redesignating subparagraphs (C) and (D) as subparagraphs (B) and (C).
(b) REPEAL OF LIMITATION ON PROPERTY FINANCED BY SUBSIDIZED ENERGY FINANCING.—
(1) IN GENERAL.—Section 48(a)(4) is amended by adding
at the end the following new subparagraph:
‘‘(D) TERMINATION.—This paragraph shall not apply
to periods after December 31, 2008, under rules similar
to the rules of section 48(m) (as in effect on the day before
the date of the enactment of the Revenue Reconciliation
Act of 1990).’’.
(2) CONFORMING AMENDMENTS.—
(A) Section 25C(e)(1) is amended by striking ‘‘(8), and
(9)’’ and inserting ‘‘and (8)’’.
(B) Section 25D(e) is amended by striking paragraph
(9).
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123 STAT. 321
(C) Section 48A(b)(2) is amended by inserting ‘‘(without
regard to subparagraph (D) thereof)’’ after ‘‘section
48(a)(4)’’.
(D) Section 48B(b)(2) is amended by inserting ‘‘(without
regard to subparagraph (D) thereof)’’ after ‘‘section
48(a)(4)’’.
(c) EFFECTIVE DATE.—
(1) IN GENERAL.—Except as provided in paragraph (2), the
amendment made by this section shall apply to periods after
December 31, 2008, under rules similar to the rules of section
48(m) of the Internal Revenue Code of 1986 (as in effect on
the day before the date of the enactment of the Revenue Reconciliation Act of 1990).
(2) CONFORMING AMENDMENTS.—The amendments made by
subparagraphs (A) and (B) of subsection (b)(2) shall apply to
taxable years beginning after December 31, 2008.
26 USC 48A.
Applicability.
26 USC 25C.
SEC. 1104. COORDINATION WITH RENEWABLE ENERGY GRANTS.
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Section 48 is amended by adding at the end the following
new subsection:
‘‘(d) COORDINATION WITH DEPARTMENT OF TREASURY GRANTS.—
In the case of any property with respect to which the Secretary
makes a grant under section 1603 of the American Recovery and
Reinvestment Tax Act of 2009—
‘‘(1) DENIAL OF PRODUCTION AND INVESTMENT CREDITS.—
No credit shall be determined under this section or section
45 with respect to such property for the taxable year in which
such grant is made or any subsequent taxable year.
‘‘(2) RECAPTURE OF CREDITS FOR PROGRESS EXPENDITURES
MADE BEFORE GRANT.—If a credit was determined under this
section with respect to such property for any taxable year
ending before such grant is made—
‘‘(A) the tax imposed under subtitle A on the taxpayer
for the taxable year in which such grant is made shall
be increased by so much of such credit as was allowed
under section 38,
‘‘(B) the general business carryforwards under section
39 shall be adjusted so as to recapture the portion of
such credit which was not so allowed, and
‘‘(C) the amount of such grant shall be determined
without regard to any reduction in the basis of such property by reason of such credit.
‘‘(3) TREATMENT OF GRANTS.—Any such grant shall—
‘‘(A) not be includible in the gross income of the taxpayer, but
‘‘(B) shall be taken into account in determining the
basis of the property to which such grant relates, except
that the basis of such property shall be reduced under
section 50(c) in the same manner as a credit allowed under
subsection (a).’’.
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123 STAT. 322
PUBLIC LAW 111–5—FEB. 17, 2009
PART II—INCREASED ALLOCATIONS OF NEW
CLEAN RENEWABLE ENERGY BONDS AND
QUALIFIED ENERGY CONSERVATION BONDS
SEC. 1111. INCREASED LIMITATION ON ISSUANCE OF NEW CLEAN
RENEWABLE ENERGY BONDS.
26 USC 54C.
Subsection (c) of section 54C is amended by adding at the
end the following new paragraph:
‘‘(4) ADDITIONAL LIMITATION.—The national new clean
renewable energy bond limitation shall be increased by
$1,600,000,000. Such increase shall be allocated by the Secretary consistent with the rules of paragraphs (2) and (3).’’.
SEC. 1112. INCREASED LIMITATION ON ISSUANCE OF QUALIFIED
ENERGY CONSERVATION BONDS.
(a) IN GENERAL.—Section 54D(d) is amended by striking
‘‘$800,000,000’’ and inserting ‘‘$3,200,000,000’’.
(b) CLARIFICATION WITH RESPECT TO GREEN COMMUNITY PROGRAMS.—
(1) IN GENERAL.—Clause (ii) of section 54D(f)(1)(A) is
amended by inserting ‘‘(including the use of loans, grants, or
other repayment mechanisms to implement such programs)’’
after ‘‘green community programs’’.
(2) SPECIAL RULES FOR BONDS FOR IMPLEMENTING GREEN
COMMUNITY PROGRAMS.—Subsection (e) of section 54D is
amended by adding at the end the following new paragraph:
‘‘(4) SPECIAL RULES FOR BONDS TO IMPLEMENT GREEN
COMMUNITY PROGRAMS.—In the case of any bond issued for
the purpose of providing loans, grants, or other repayment
mechanisms for capital expenditures to implement green
community programs, such bond shall not be treated as a
private activity bond for purposes of paragraph (3).’’.
PART III—ENERGY CONSERVATION
INCENTIVES
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SEC. 1121. EXTENSION AND MODIFICATION OF CREDIT FOR NONBUSINESS ENERGY PROPERTY.
(a) IN GENERAL.—Section 25C is amended by striking subsections (a) and (b) and inserting the following new subsections:
‘‘(a) ALLOWANCE OF CREDIT.—In the case of an individual, there
shall be allowed as a credit against the tax imposed by this chapter
for the taxable year an amount equal to 30 percent of the sum
of—
‘‘(1) the amount paid or incurred by the taxpayer during
such taxable year for qualified energy efficiency improvements,
and
‘‘(2) the amount of the residential energy property expenditures paid or incurred by the taxpayer during such taxable
year.
‘‘(b) LIMITATION.—The aggregate amount of the credits allowed
under this section for taxable years beginning in 2009 and 2010
with respect to any taxpayer shall not exceed $1,500.’’.
(b) MODIFICATIONS OF STANDARDS FOR ENERGY-EFFICIENT
BUILDING PROPERTY.—
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 323
(1) ELECTRIC HEAT PUMPS.—Subparagraph (B) of section
25C(d)(3) is amended to read as follows:
‘‘(B) an electric heat pump which achieves the highest
efficiency tier established by the Consortium for Energy
Efficiency, as in effect on January 1, 2009.’’.
(2) CENTRAL AIR CONDITIONERS.—Subparagraph (C) of section 25C(d)(3) is amended by striking ‘‘2006’’ and inserting
‘‘2009’’.
(3) WATER HEATERS.—Subparagraph (D) of section
25C(d)(3) is amended to read as follows:
‘‘(D) a natural gas, propane, or oil water heater which
has either an energy factor of at least 0.82 or a thermal
efficiency of at least 90 percent.’’.
(4) WOOD STOVES.—Subparagraph (E) of section 25C(d)(3)
is amended by inserting ‘‘, as measured using a lower heating
value’’ after ‘‘75 percent’’.
(c) MODIFICATIONS OF STANDARDS FOR OIL FURNACES AND HOT
WATER BOILERS.—
(1) IN GENERAL.—Paragraph (4) of section 25C(d) is
amended to read as follows:
‘‘(4) QUALIFIED NATURAL GAS, PROPANE, AND OIL FURNACES
AND HOT WATER BOILERS.—
‘‘(A) QUALIFIED NATURAL GAS FURNACE.—The term
‘qualified natural gas furnace’ means any natural gas furnace which achieves an annual fuel utilization efficiency
rate of not less than 95.
‘‘(B) QUALIFIED NATURAL GAS HOT WATER BOILER.—
The term ‘qualified natural gas hot water boiler’ means
any natural gas hot water boiler which achieves an annual
fuel utilization efficiency rate of not less than 90.
‘‘(C) QUALIFIED PROPANE FURNACE.—The term ‘qualified propane furnace’ means any propane furnace which
achieves an annual fuel utilization efficiency rate of not
less than 95.
‘‘(D) QUALIFIED PROPANE HOT WATER BOILER.—The
term ‘qualified propane hot water boiler’ means any propane hot water boiler which achieves an annual fuel utilization efficiency rate of not less than 90.
‘‘(E) QUALIFIED OIL FURNACES.—The term ‘qualified oil
furnace’ means any oil furnace which achieves an annual
fuel utilization efficiency rate of not less than 90.
‘‘(F) QUALIFIED OIL HOT WATER BOILER.—The term
‘qualified oil hot water boiler’ means any oil hot water
boiler which achieves an annual fuel utilization efficiency
rate of not less than 90.’’.
(2) CONFORMING AMENDMENT.—Clause (ii) of section
25C(d)(2)(A) is amended to read as follows:
‘‘(ii) any qualified natural gas furnace, qualified
propane furnace, qualified oil furnace, qualified natural
gas hot water boiler, qualified propane hot water boiler,
or qualified oil hot water boiler, or’’.
(d) MODIFICATIONS OF STANDARDS FOR QUALIFIED ENERGY EFFICIENCY IMPROVEMENTS.—
(1) QUALIFICATIONS FOR EXTERIOR WINDOWS, DOORS, AND
SKYLIGHTS.—Subsection (c) of section 25C is amended by adding
at the end the following new paragraph:
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PUBLIC LAW 111–5—FEB. 17, 2009
‘‘(4) QUALIFICATIONS FOR EXTERIOR WINDOWS, DOORS, AND
SKYLIGHTS.—Such term shall not include any component
26 USC 25C.
Applicability.
26 USC 25C note.
described in subparagraph (B) or (C) of paragraph (2) unless
such component is equal to or below a U factor of 0.30 and
SHGC of 0.30.’’.
(2) ADDITIONAL QUALIFICATION FOR INSULATION.—Subparagraph (A) of section 25C(c)(2) is amended by inserting ‘‘and
meets the prescriptive criteria for such material or system
established by the 2009 International Energy Conservation
Code, as such Code (including supplements) is in effect on
the date of the enactment of the American Recovery and
Reinvestment Tax Act of 2009’’ after ‘‘such dwelling unit’’.
(e) EXTENSION.—Section 25C(g)(2) is amended by striking
‘‘December 31, 2009’’ and inserting ‘‘December 31, 2010’’.
(f) EFFECTIVE DATES.—
(1) IN GENERAL.—Except as provided in paragraph (2), the
amendments made by this section shall apply to taxable years
beginning after December 31, 2008.
(2) EFFICIENCY STANDARDS.—The amendments made by
paragraphs (1), (2), and (3) of subsection (b) and subsections
(c) and (d) shall apply to property placed in service after the
date of the enactment of this Act.
SEC. 1122. MODIFICATION OF CREDIT FOR RESIDENTIAL ENERGY EFFICIENT PROPERTY.
(a) REMOVAL OF CREDIT LIMITATION FOR PROPERTY PLACED
SERVICE.—
(1) IN GENERAL.—Paragraph (1) of section 25D(b) is
amended to read as follows:
‘‘(1) MAXIMUM CREDIT FOR FUEL CELLS.—In the case of
any qualified fuel cell property expenditure, the credit allowed
under subsection (a) (determined without regard to subsection
(c)) for any taxable year shall not exceed $500 with respect
to each half kilowatt of capacity of the qualified fuel cell property (as defined in section 48(c)(1)) to which such expenditure
relates.’’.
(2) CONFORMING AMENDMENT.—Paragraph (4) of section
25D(e) is amended—
(A) by striking all that precedes subparagraph (B) and
inserting the following:
‘‘(4) FUEL CELL EXPENDITURE LIMITATIONS IN CASE OF JOINT
OCCUPANCY.—In the case of any dwelling unit with respect
to which qualified fuel cell property expenditures are made
and which is jointly occupied and used during any calendar
year as a residence by two or more individuals, the following
rules shall apply:
‘‘(A) MAXIMUM EXPENDITURES FOR FUEL CELLS.—The
maximum amount of such expenditures which may be
taken into account under subsection (a) by all such individuals with respect to such dwelling unit during such calendar year shall be $1,667 in the case of each half kilowatt
of capacity of qualified fuel cell property (as defined in
section 48(c)(1)) with respect to which such expenditures
relate.’’, and
(B) by striking subparagraph (C).
(b) EFFECTIVE DATE.—The amendments made by this section
shall apply to taxable years beginning after December 31, 2008.
IN
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Regulations.
Applicability.
26 USC 25D
note.
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 325
SEC. 1123. TEMPORARY INCREASE IN CREDIT FOR ALTERNATIVE FUEL
VEHICLE REFUELING PROPERTY.
(a) IN GENERAL.—Section 30C(e) is amended by adding at the
end the following new paragraph:
‘‘(6) SPECIAL RULE FOR PROPERTY PLACED IN SERVICE DURING
2009 AND 2010.—In the case of property placed in service in
taxable years beginning after December 31, 2008, and before
January 1, 2011—
‘‘(A) in the case of any such property which does not
relate to hydrogen—
‘‘(i) subsection (a) shall be applied by substituting
‘50 percent’ for ‘30 percent’,
‘‘(ii) subsection (b)(1) shall be applied by substituting ‘$50,000’ for ‘$30,000’, and
‘‘(iii) subsection (b)(2) shall be applied by substituting ‘$2,000’ for ‘$1,000’, and
‘‘(B) in the case of any such property which relates
to hydrogen, subsection (b)(1) shall be applied by substituting ‘$200,000’ for ‘$30,000’.’’.
(b) EFFECTIVE DATE.—The amendment made by this section
shall apply to taxable years beginning after December 31, 2008.
26 USC 30C.
Applicability.
26 USC 30C note.
PART IV—MODIFICATION OF CREDIT FOR
CARBON DIOXIDE SEQUESTRATION
SEC. 1131. APPLICATION OF MONITORING REQUIREMENTS TO CARBON
DIOXIDE USED AS A TERTIARY INJECTANT.
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(a) IN GENERAL.—Section 45Q(a)(2) is amended by striking
‘‘and’’ at the end of subparagraph (A), by striking the period at
the end of subparagraph (B) and inserting ‘‘, and’’, and by adding
at the end the following new subparagraph:
‘‘(C) disposed of by the taxpayer in secure geological
storage.’’.
(b) CONFORMING AMENDMENTS.—
(1) Section 45Q(d)(2) is amended—
(A) by striking ‘‘subsection (a)(1)(B)’’ and inserting
‘‘paragraph (1)(B) or (2)(C) of subsection (a)’’,
(B) by striking ‘‘and unminable coal seems’’ and
inserting ‘‘, oil and gas reservoirs, and unminable coal
seams’’, and
(C) by inserting ‘‘the Secretary of Energy, and the
Secretary of the Interior,’’ after ‘‘Environmental Protection
Agency’’.
(2) Section 45Q(a)(1)(B) is amended by inserting ‘‘and not
used by the taxpayer as described in paragraph (2)(B)’’ after
‘‘storage’’.
(3) Section 45Q(e) is amended by striking ‘‘captured and
disposed of or used as a tertiary injectant’’ and inserting ‘‘taken
into account in accordance with subsection (a)’’.
(c) EFFECTIVE DATE.—The amendments made by this section
shall apply to carbon dioxide captured after the date of the enactment of this Act.
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PUBLIC LAW 111–5—FEB. 17, 2009
PART V—PLUG-IN ELECTRIC DRIVE MOTOR
VEHICLES
SEC. 1141. CREDIT FOR NEW QUALIFIED PLUG-IN ELECTRIC DRIVE
MOTOR VEHICLES.
(a) IN GENERAL.—Section 30D is amended to read as follows:
26 USC 30D.
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‘‘SEC.
30D.
NEW QUALIFIED
VEHICLES.
PLUG-IN
ELECTRIC
DRIVE
MOTOR
‘‘(a) ALLOWANCE OF CREDIT.—There shall be allowed as a credit
against the tax imposed by this chapter for the taxable year an
amount equal to the sum of the credit amounts determined under
subsection (b) with respect to each new qualified plug-in electric
drive motor vehicle placed in service by the taxpayer during the
taxable year.
‘‘(b) PER VEHICLE DOLLAR LIMITATION.—
‘‘(1) IN GENERAL.—The amount determined under this subsection with respect to any new qualified plug-in electric drive
motor vehicle is the sum of the amounts determined under
paragraphs (2) and (3) with respect to such vehicle.
‘‘(2) BASE AMOUNT.—The amount determined under this
paragraph is $2,500.
‘‘(3) BATTERY CAPACITY.—In the case of a vehicle which
draws propulsion energy from a battery with not less than
5 kilowatt hours of capacity, the amount determined under
this paragraph is $417, plus $417 for each kilowatt hour of
capacity in excess of 5 kilowatt hours. The amount determined
under this paragraph shall not exceed $5,000.
‘‘(c) APPLICATION WITH OTHER CREDITS.—
‘‘(1) BUSINESS CREDIT TREATED AS PART OF GENERAL BUSINESS CREDIT.—So much of the credit which would be allowed
under subsection (a) for any taxable year (determined without
regard to this subsection) that is attributable to property of
a character subject to an allowance for depreciation shall be
treated as a credit listed in section 38(b) for such taxable
year (and not allowed under subsection (a)).
‘‘(2) PERSONAL CREDIT.—
‘‘(A) IN GENERAL.—For purposes of this title, the credit
allowed under subsection (a) for any taxable year (determined after application of paragraph (1)) shall be treated
as a credit allowable under subpart A for such taxable
year.
‘‘(B) LIMITATION BASED ON AMOUNT OF TAX.—In the
case of a taxable year to which section 26(a)(2) does not
apply, the credit allowed under subsection (a) for any taxable year (determined after application of paragraph (1))
shall not exceed the excess of—
‘‘(i) the sum of the regular tax liability (as defined
in section 26(b)) plus the tax imposed by section 55,
over
‘‘(ii) the sum of the credits allowable under subpart
A (other than this section and sections 23 and 25D)
and section 27 for the taxable year.
‘‘(d) NEW QUALIFIED PLUG-IN ELECTRIC DRIVE MOTOR
VEHICLE.—For purposes of this section—
‘‘(1) IN GENERAL.—The term ‘new qualified plug-in electric
drive motor vehicle’ means a motor vehicle—
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‘‘(A) the original use of which commences with the
taxpayer,
‘‘(B) which is acquired for use or lease by the taxpayer
and not for resale,
‘‘(C) which is made by a manufacturer,
‘‘(D) which is treated as a motor vehicle for purposes
of title II of the Clean Air Act,
‘‘(E) which has a gross vehicle weight rating of less
than 14,000 pounds, and
‘‘(F) which is propelled to a significant extent by an
electric motor which draws electricity from a battery
which—
‘‘(i) has a capacity of not less than 4 kilowatt
hours, and
‘‘(ii) is capable of being recharged from an external
source of electricity.
‘‘(2) MOTOR VEHICLE.—The term ‘motor vehicle’ means any
vehicle which is manufactured primarily for use on public
streets, roads, and highways (not including a vehicle operated
exclusively on a rail or rails) and which has at least 4 wheels.
‘‘(3) MANUFACTURER.—The term ‘manufacturer’ has the
meaning given such term in regulations prescribed by the
Administrator of the Environmental Protection Agency for purposes of the administration of title II of the Clean Air Act
(42 U.S.C. 7521 et seq.).
‘‘(4) BATTERY CAPACITY.—The term ‘capacity’ means, with
respect to any battery, the quantity of electricity which the
battery is capable of storing, expressed in kilowatt hours, as
measured from a 100 percent state of charge to a 0 percent
state of charge.
‘‘(e) LIMITATION ON NUMBER OF NEW QUALIFIED PLUG-IN ELECTRIC DRIVE MOTOR VEHICLES ELIGIBLE FOR CREDIT.—
‘‘(1) IN GENERAL.—In the case of a new qualified plugin electric drive motor vehicle sold during the phaseout period,
only the applicable percentage of the credit otherwise allowable
under subsection (a) shall be allowed.
‘‘(2) PHASEOUT PERIOD.—For purposes of this subsection,
the phaseout period is the period beginning with the second
calendar quarter following the calendar quarter which includes
the first date on which the number of new qualified plugin electric drive motor vehicles manufactured by the manufacturer of the vehicle referred to in paragraph (1) sold for use
in the United States after December 31, 2009, is at least
200,000.
‘‘(3) APPLICABLE PERCENTAGE.—For purposes of paragraph
(1), the applicable percentage is—
‘‘(A) 50 percent for the first 2 calendar quarters of
the phaseout period,
‘‘(B) 25 percent for the 3d and 4th calendar quarters
of the phaseout period, and
‘‘(C) 0 percent for each calendar quarter thereafter.
‘‘(4) CONTROLLED GROUPS.—Rules similar to the rules of
section 30B(f)(4) shall apply for purposes of this subsection.
‘‘(f) SPECIAL RULES.—
‘‘(1) BASIS REDUCTION.—For purposes of this subtitle, the
basis of any property for which a credit is allowable under
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PUBLIC LAW 111–5—FEB. 17, 2009
subsection (a) shall be reduced by the amount of such credit
so allowed.
‘‘(2) NO DOUBLE BENEFIT.—The amount of any deduction
or other credit allowable under this chapter for a new qualified
plug-in electric drive motor vehicle shall be reduced by the
amount of credit allowed under subsection (a) for such vehicle.
‘‘(3) PROPERTY USED BY TAX-EXEMPT ENTITY.—In the case
of a vehicle the use of which is described in paragraph (3)
or (4) of section 50(b) and which is not subject to a lease,
the person who sold such vehicle to the person or entity using
such vehicle shall be treated as the taxpayer that placed such
vehicle in service, but only if such person clearly discloses
to such person or entity in a document the amount of any
credit allowable under subsection (a) with respect to such
vehicle (determined without regard to subsection (c)).
‘‘(4) PROPERTY USED OUTSIDE UNITED STATES NOT QUALIFIED.—No credit shall be allowable under subsection (a) with
respect to any property referred to in section 50(b)(1).
‘‘(5) RECAPTURE.—The Secretary shall, by regulations, provide for recapturing the benefit of any credit allowable under
subsection (a) with respect to any property which ceases to
be property eligible for such credit.
‘‘(6) ELECTION NOT TO TAKE CREDIT.—No credit shall be
allowed under subsection (a) for any vehicle if the taxpayer
elects to not have this section apply to such vehicle.
‘‘(7) INTERACTION WITH AIR QUALITY AND MOTOR VEHICLE
SAFETY STANDARDS.—A motor vehicle shall not be considered
eligible for a credit under this section unless such vehicle
is in compliance with—
‘‘(A) the applicable provisions of the Clean Air Act
for the applicable make and model year of the vehicle
(or applicable air quality provisions of State law in the
case of a State which has adopted such provision under
a waiver under section 209(b) of the Clean Air Act), and
‘‘(B) the motor vehicle safety provisions of sections
30101 through 30169 of title 49, United States Code.’’.
(b) CONFORMING AMENDMENTS.—
(1) Section 30B(d)(3)(D) is amended by striking ‘‘subsection
(d) thereof’’ and inserting ‘‘subsection (c) thereof’’.
(2) Section 38(b)(35) is amended by striking ‘‘30D(d)(1)’’
and inserting ‘‘30D(c)(1)’’.
(3) Section 1016(a)(25) is amended by striking ‘‘section
30D(e)(4)’’ and inserting ‘‘section 30D(f)(1)’’.
(4) Section 6501(m) is amended by striking ‘‘section
30D(e)(9)’’ and inserting ‘‘section 30D(e)(4)’’.
(c) EFFECTIVE DATE.—The amendments made by this section
shall apply to vehicles acquired after December 31, 2009.
SEC. 1142. CREDIT FOR CERTAIN PLUG-IN ELECTRIC VEHICLES.
(a) IN GENERAL.—Section 30 is amended to read as follows:
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‘‘SEC. 30. CERTAIN PLUG-IN ELECTRIC VEHICLES.
‘‘(a) ALLOWANCE OF CREDIT.—There shall be allowed as a credit
against the tax imposed by this chapter for the taxable year an
amount equal to 10 percent of the cost of any qualified plugin electric vehicle placed in service by the taxpayer during the
taxable year.
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‘‘(b) PER VEHICLE DOLLAR LIMITATION.—The amount of the
credit allowed under subsection (a) with respect to any vehicle
shall not exceed $2,500.
‘‘(c) APPLICATION WITH OTHER CREDITS.—
‘‘(1) BUSINESS CREDIT TREATED AS PART OF GENERAL BUSINESS CREDIT.—So much of the credit which would be allowed
under subsection (a) for any taxable year (determined without
regard to this subsection) that is attributable to property of
a character subject to an allowance for depreciation shall be
treated as a credit listed in section 38(b) for such taxable
year (and not allowed under subsection (a)).
‘‘(2) PERSONAL CREDIT.—
‘‘(A) IN GENERAL.—For purposes of this title, the credit
allowed under subsection (a) for any taxable year (determined after application of paragraph (1)) shall be treated
as a credit allowable under subpart A for such taxable
year.
‘‘(B) LIMITATION BASED ON AMOUNT OF TAX.—In the
case of a taxable year to which section 26(a)(2) does not
apply, the credit allowed under subsection (a) for any taxable year (determined after application of paragraph (1))
shall not exceed the excess of—
‘‘(i) the sum of the regular tax liability (as defined
in section 26(b)) plus the tax imposed by section 55,
over
‘‘(ii) the sum of the credits allowable under subpart
A (other than this section and sections 23, 25D, and
30D) and section 27 for the taxable year.
‘‘(d) QUALIFIED PLUG-IN ELECTRIC VEHICLE.—For purposes of
this section—
‘‘(1) IN GENERAL.—The term ‘qualified plug-in electric
vehicle’ means a specified vehicle—
‘‘(A) the original use of which commences with the
taxpayer,
‘‘(B) which is acquired for use or lease by the taxpayer
and not for resale,
‘‘(C) which is made by a manufacturer,
‘‘(D) which is manufactured primarily for use on public
streets, roads, and highways,
‘‘(E) which has a gross vehicle weight rating of less
than 14,000 pounds, and
‘‘(F) which is propelled to a significant extent by an
electric motor which draws electricity from a battery
which—
‘‘(i) has a capacity of not less than 4 kilowatt
hours (2.5 kilowatt hours in the case of a vehicle with
2 or 3 wheels), and
‘‘(ii) is capable of being recharged from an external
source of electricity.
‘‘(2) SPECIFIED VEHICLE.—The term ‘specified vehicle’ means
any vehicle which—
‘‘(A) is a low speed vehicle within the meaning of
section 571.3 of title 49, Code of Federal Regulations (as
in effect on the date of the enactment of the American
Recovery and Reinvestment Tax Act of 2009), or
‘‘(B) has 2 or 3 wheels.
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26 USC 24.
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‘‘(3) MANUFACTURER.—The term ‘manufacturer’ has the
meaning given such term in regulations prescribed by the
Administrator of the Environmental Protection Agency for purposes of the administration of title II of the Clean Air Act
(42 U.S.C. 7521 et seq.).
‘‘(4) BATTERY CAPACITY.—The term ‘capacity’ means, with
respect to any battery, the quantity of electricity which the
battery is capable of storing, expressed in kilowatt hours, as
measured from a 100 percent state of charge to a 0 percent
state of charge.
‘‘(e) SPECIAL RULES.—
‘‘(1) BASIS REDUCTION.—For purposes of this subtitle, the
basis of any property for which a credit is allowable under
subsection (a) shall be reduced by the amount of such credit
so allowed.
‘‘(2) NO DOUBLE BENEFIT.—The amount of any deduction
or other credit allowable under this chapter for a new qualified
plug-in electric drive motor vehicle shall be reduced by the
amount of credit allowable under subsection (a) for such vehicle.
‘‘(3) PROPERTY USED BY TAX-EXEMPT ENTITY.—In the case
of a vehicle the use of which is described in paragraph (3)
or (4) of section 50(b) and which is not subject to a lease,
the person who sold such vehicle to the person or entity using
such vehicle shall be treated as the taxpayer that placed such
vehicle in service, but only if such person clearly discloses
to such person or entity in a document the amount of any
credit allowable under subsection (a) with respect to such
vehicle (determined without regard to subsection (c)).
‘‘(4) PROPERTY USED OUTSIDE UNITED STATES NOT QUALIFIED.—No credit shall be allowable under subsection (a) with
respect to any property referred to in section 50(b)(1).
‘‘(5) RECAPTURE.—The Secretary shall, by regulations, provide for recapturing the benefit of any credit allowable under
subsection (a) with respect to any property which ceases to
be property eligible for such credit.
‘‘(6) ELECTION NOT TO TAKE CREDIT.—No credit shall be
allowed under subsection (a) for any vehicle if the taxpayer
elects to not have this section apply to such vehicle.
‘‘(f) TERMINATION.—This section shall not apply to any vehicle
acquired after December 31, 2011.’’.
(b) CONFORMING AMENDMENTS.—
(1)(A) Section 24(b)(3)(B) is amended by inserting ‘‘30,’’
after ‘‘25D,’’.
(B) Section 25(e)(1)(C)(ii) is amended by inserting ‘‘30,’’
after ‘‘25D,’’.
(C) Section 25B(g)(2) is amended by inserting ‘‘30,’’ after
‘‘25D,’’.
(D) Section 26(a)(1) is amended by inserting ‘‘30,’’ after
‘‘25D,’’.
(E) Section 904(i) is amended by striking ‘‘and 25B’’ and
inserting ‘‘25B, 30, and 30D’’.
(F) Section 1400C(d)(2) is amended by striking ‘‘and 25D’’
and inserting ‘‘25D, and 30’’.
(2) Paragraph (1) of section 30B(h) is amended to read
as follows:
‘‘(1) MOTOR VEHICLE.—The term ‘motor vehicle’ means any
vehicle which is manufactured primarily for use on public
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streets, roads, and highways (not including a vehicle operated
exclusively on a rail or rails) and which has at least 4 wheels.’’.
(3) Section 30C(d)(2)(A) is amended by striking ‘‘, 30,’’.
(4)(A) Section 53(d)(1)(B) is amended by striking clause
(iii) and redesignating clause (iv) as clause (iii).
(B) Subclause (II) of section 53(d)(1)(B)(iii), as so redesignated, is amended by striking ‘‘increased in the manner provided in clause (iii)’’.
(5) Section 55(c)(3) is amended by striking ‘‘30(b)(3),’’.
(6) Section 1016(a)(25) is amended by striking ‘‘section
30(d)(1)’’ and inserting ‘‘section 30(e)(1)’’.
(7) Section 6501(m) is amended by striking ‘‘section
30(d)(4)’’ and inserting ‘‘section 30(e)(6)’’.
(8) The item in the table of sections for subpart B of
part IV of subchapter A of chapter 1 is amended to read
as follows:
‘‘Sec. 30. Certain plug-in electric vehicles.’’.
(c) EFFECTIVE DATE.—The amendments
made by this section
shall apply to vehicles acquired after the date of the enactment
of this Act.
(d) TRANSITIONAL RULE.—In the case of a vehicle acquired
after the date of the enactment of this Act and before January
1, 2010, no credit shall be allowed under section 30 of the Internal
Revenue Code of 1986, as added by this section, if credit is allowable
under section 30D of such Code with respect to such vehicle.
(e) APPLICATION OF EGTRRA SUNSET.—The amendment made
by subsection (b)(1)(A) shall be subject to title IX of the Economic
Growth and Tax Relief Reconciliation Act of 2001 in the same
manner as the provision of such Act to which such amendment
relates.
26 USC 30C.
26 USC 24 note.
Time period.
26 USC 30 note.
26 USC 24 note.
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SEC. 1143. CONVERSION KITS.
(a) IN GENERAL.—Section 30B (relating to alternative motor
vehicle credit) is amended by redesignating subsections (i) and
(j) as subsections (j) and (k), respectively, and by inserting after
subsection (h) the following new subsection:
‘‘(i) PLUG-IN CONVERSION CREDIT.—
‘‘(1) IN GENERAL.—For purposes of subsection (a), the plugin conversion credit determined under this subsection with
respect to any motor vehicle which is converted to a qualified
plug-in electric drive motor vehicle is 10 percent of so much
of the cost of the converting such vehicle as does not exceed
$40,000.
‘‘(2) QUALIFIED PLUG-IN ELECTRIC DRIVE MOTOR VEHICLE.—
For purposes of this subsection, the term ‘qualified plug-in
electric drive motor vehicle’ means any new qualified plugin electric drive motor vehicle (as defined in section 30D, determined without regard to whether such vehicle is made by
a manufacturer or whether the original use of such vehicle
commences with the taxpayer).
‘‘(3) CREDIT ALLOWED IN ADDITION TO OTHER CREDITS.—
The credit allowed under this subsection shall be allowed with
respect to a motor vehicle notwithstanding whether a credit
has been allowed with respect to such motor vehicle under
this section (other than this subsection) in any preceding taxable year.
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26 USC 30B.
26 USC 30B note.
PUBLIC LAW 111–5—FEB. 17, 2009
‘‘(4) TERMINATION.—This subsection shall not apply to
conversions made after December 31, 2011.’’.
(b) CREDIT TREATED AS PART OF ALTERNATIVE MOTOR VEHICLE
CREDIT.—Section 30B(a) is amended by striking ‘‘and’’ at the end
of paragraph (3), by striking the period at the end of paragraph
(4) and inserting ‘‘, and’’, and by adding at the end the following
new paragraph:
‘‘(5) the plug-in conversion credit determined under subsection (i).’’.
(c) NO RECAPTURE FOR VEHICLES CONVERTED TO QUALIFIED
PLUG-IN ELECTRIC DRIVE MOTOR VEHICLES.—Paragraph (8) of section 30B(h) is amended by adding at the end the following: ‘‘,
except that no benefit shall be recaptured if such property ceases
to be eligible for such credit by reason of conversion to a qualified
plug-in electric drive motor vehicle.’’.
(d) EFFECTIVE DATE.—The amendments made by this section
shall apply to property placed in service after the date of the
enactment of this Act.
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SEC. 1144. TREATMENT OF ALTERNATIVE MOTOR VEHICLE CREDIT
AS A PERSONAL CREDIT ALLOWED AGAINST AMT.
(a) IN GENERAL.—Paragraph (2) of section 30B(g) is amended
to read as follows:
‘‘(2) PERSONAL CREDIT.—
‘‘(A) IN GENERAL.—For purposes of this title, the credit
allowed under subsection (a) for any taxable year (determined after application of paragraph (1)) shall be treated
as a credit allowable under subpart A for such taxable
year.
‘‘(B) LIMITATION BASED ON AMOUNT OF TAX.—In the
case of a taxable year to which section 26(a)(2) does not
apply, the credit allowed under subsection (a) for any taxable year (determined after application of paragraph (1))
shall not exceed the excess of—
‘‘(i) the sum of the regular tax liability (as defined
in section 26(b)) plus the tax imposed by section 55,
over
‘‘(ii) the sum of the credits allowable under subpart
A (other than this section and sections 23, 25D, 30,
and 30D) and section 27 for the taxable year.’’.
(b) CONFORMING AMENDMENTS.—
(1)(A) Section 24(b)(3)(B), as amended by this Act, is
amended by inserting ‘‘30B,’’ after ‘‘30,’’.
(B) Section 25(e)(1)(C)(ii), as amended by this Act, is
amended by inserting ‘‘30B,’’ after ‘‘30,’’.
(C) Section 25B(g)(2), as amended by this Act, is amended
by inserting ‘‘30B,’’ after ‘‘30,’’.
(D) Section 26(a)(1), as amended by this Act, is amended
by inserting ‘‘30B,’’ after ‘‘30,’’.
(E) Section 904(i), as amended by this Act, is amended
by inserting ‘‘30B,’’ after ‘‘30’’.
(F) Section 1400C(d)(2), as amended by this Act, is amended
by striking ‘‘and 30’’ and inserting ‘‘30, and 30B’’.
(2) Section 30C(d)(2)(A), as amended by this Act, is
amended by striking ‘‘sections 27 and 30B’’ and inserting ‘‘section 27’’.
(3) Section 55(c)(3) is amended by striking ‘‘30B(g)(2),’’.
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(c) EFFECTIVE DATE.—The amendments made by this section
shall apply to taxable years beginning after December 31, 2008.
(d) APPLICATION OF EGTRRA SUNSET.—The amendment made
by subsection (b)(1)(A) shall be subject to title IX of the Economic
Growth and Tax Relief Reconciliation Act of 2001 in the same
manner as the provision of such Act to which such amendment
relates.
26 USC 24 note.
26 USC 24 note.
PART VI—PARITY FOR TRANSPORTATION
FRINGE BENEFITS
SEC. 1151. INCREASED EXCLUSION AMOUNT FOR COMMUTER TRANSIT
BENEFITS AND TRANSIT PASSES.
(a) IN GENERAL.—Paragraph (2) of section 132(f) is amended
by adding at the end the following flush sentence:
‘‘In the case of any month beginning on or after the date
of the enactment of this sentence and before January 1, 2011,
subparagraph (A) shall be applied as if the dollar amount
therein were the same as the dollar amount in effect for such
month under subparagraph (B).’’.
(b) EFFECTIVE DATE.—The amendment made by this section
shall apply to months beginning on or after the date of the enactment of this section.
26 USC 132.
Applicability.
26 USC 132 note.
Subtitle C—Tax Incentives for Business
PART I—TEMPORARY INVESTMENT
INCENTIVES
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SEC. 1201. SPECIAL ALLOWANCE FOR CERTAIN PROPERTY ACQUIRED
DURING 2009.
(a) EXTENSION OF SPECIAL ALLOWANCE.—
(1) IN GENERAL.—Paragraph (2) of section 168(k) is
amended—
(A) by striking ‘‘January 1, 2010’’ and inserting
‘‘January 1, 2011’’, and
(B) by striking ‘‘January 1, 2009’’ each place it appears
and inserting ‘‘January 1, 2010’’.
(2) CONFORMING AMENDMENTS.—
(A) The heading for subsection (k) of section 168 is
amended by striking ‘‘JANUARY 1, 2009’’ and inserting
‘‘JANUARY 1, 2010’’.
(B) The heading for clause (ii) of section 168(k)(2)(B)
is amended by striking ‘‘PRE-JANUARY 1, 2009’’ and inserting
‘‘PRE-JANUARY 1, 2010’’.
(C) Subparagraph (B) of section 168(l)(5) is amended
by striking ‘‘January 1, 2009’’ and inserting ‘‘January 1,
2010’’.
(D) Subparagraph (C) of section 168(n)(2) is amended
by striking ‘‘January 1, 2009’’ and inserting ‘‘January 1,
2010’’.
(E) Subparagraph (B) of section 1400N(d)(3) is
amended by striking ‘‘January 1, 2009’’ and inserting
‘‘January 1, 2010’’.
(3) TECHNICAL AMENDMENTS.—
(A) Subparagraph (D) of section 168(k)(4) is amended—
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26 USC 6211.
Applicability.
26 USC 168 note.
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PUBLIC LAW 111–5—FEB. 17, 2009
(i) by striking ‘‘and’’ at the end of clause (i),
(ii) by redesignating clause (ii) as clause (iii), and
(iii) by inserting after clause (i) the following new
clause:
‘‘(ii) ‘April 1, 2008’ shall be substituted for ‘January
1, 2008’ in subparagraph (A)(iii)(I) thereof, and’’.
(B) Subparagraph (A) of section 6211(b)(4) is amended
by inserting ‘‘168(k)(4),’’ after ‘‘53(e),’’.
(b) EXTENSION OF ELECTION TO ACCELERATE THE AMT AND
RESEARCH CREDITS IN LIEU OF BONUS DEPRECIATION.—
(1) IN GENERAL.—Section 168(k)(4) (relating to election to
accelerate the AMT and research credits in lieu of bonus depreciation) is amended—
(A) by striking ‘‘2009’’ and inserting ‘‘2010’’in subparagraph (D)(iii) (as redesignated by subsection (a)(3)), and
(B) by adding at the end the following new subparagraph:
‘‘(H) SPECIAL RULES FOR EXTENSION PROPERTY.—
‘‘(i) TAXPAYERS PREVIOUSLY ELECTING ACCELERATION.—In the case of a taxpayer who made the election
under subparagraph (A) for its first taxable year ending
after March 31, 2008—
‘‘(I) the taxpayer may elect not to have this
paragraph apply to extension property, but
‘‘(II) if the taxpayer does not make the election
under subclause (I), in applying this paragraph
to the taxpayer a separate bonus depreciation
amount, maximum amount, and maximum
increase amount shall be computed and applied
to eligible qualified property which is extension
property and to eligible qualified property which
is not extension property.
‘‘(ii) TAXPAYERS NOT PREVIOUSLY ELECTING ACCELERATION.—In the case of a taxpayer who did not make
the election under subparagraph (A) for its first taxable
year ending after March 31, 2008—
‘‘(I) the taxpayer may elect to have this paragraph apply to its first taxable year ending after
December 31, 2008, and each subsequent taxable
year, and
‘‘(II) if the taxpayer makes the election under
subclause (I), this paragraph shall only apply to
eligible qualified property which is extension property.
‘‘(iii) EXTENSION PROPERTY.—For purposes of this
subparagraph, the term ‘extension property’ means
property which is eligible qualified property solely by
reason of the extension of the application of the special
allowance under paragraph (1) pursuant to the amendments made by section 1201(a) of the American
Recovery and Reinvestment Tax Act of 2009 (and the
application of such extension to this paragraph pursuant to the amendment made by section 1201(b)(1) of
such Act).’’.
(2) TECHNICAL AMENDMENT.—Section 6211(b)(4)(A) is
amended by inserting ‘‘168(k)(4),’’ after ‘‘53(e),’’.
(c) EFFECTIVE DATES.—
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123 STAT. 335
(1) IN GENERAL.—Except as provided in paragraph (2), the
amendments made by this section shall apply to property placed
in service after December 31, 2008, in taxable years ending
after such date.
(2) TECHNICAL AMENDMENTS.—The amendments made by
subsections (a)(3) and (b)(2) shall apply to taxable years ending
after March 31, 2008.
SEC. 1202. TEMPORARY INCREASE IN LIMITATIONS ON EXPENSING
OF CERTAIN DEPRECIABLE BUSINESS ASSETS.
(a) IN GENERAL.—Paragraph (7) of section 179(b) is amended—
(1) by striking ‘‘2008’’ and inserting ‘‘2008, or 2009’’, and
(2) by striking ‘‘2008’’ in the heading thereof and inserting
‘‘2008, AND 2009’’.
(b) EFFECTIVE DATE.—The amendments made by this section
shall apply to taxable years beginning after December 31, 2008.
26 USC 179.
26 USC 179 note.
PART II—SMALL BUSINESS PROVISIONS
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SEC. 1211. 5-YEAR CARRYBACK OF OPERATING LOSSES OF SMALL
BUSINESSES.
(a) IN GENERAL.—Subparagraph (H) of section 172(b)(1) is
amended to read as follows:
‘‘(H) CARRYBACK FOR 2008 NET OPERATING LOSSES OF
SMALL BUSINESSES.—
‘‘(i) IN GENERAL.—If an eligible small business
elects the application of this subparagraph with respect
to an applicable 2008 net operating loss—
‘‘(I) subparagraph (A)(i) shall be applied by
substituting any whole number elected by the taxpayer which is more than 2 and less than 6 for
‘2’,
‘‘(II) subparagraph (E)(ii) shall be applied by
substituting the whole number which is one less
than the whole number substituted under subclause (I) for ‘2’, and
‘‘(III) subparagraph (F) shall not apply.
‘‘(ii) APPLICABLE 2008 NET OPERATING LOSS.—For
purposes of this subparagraph, the term ‘applicable
2008 net operating loss’ means—
‘‘(I) the taxpayer’s net operating loss for any
taxable year ending in 2008, or
‘‘(II) if the taxpayer elects to have this subclause apply in lieu of subclause (I), the taxpayer’s
net operating loss for any taxable year beginning
in 2008.
‘‘(iii) ELECTION.—Any election under this subparagraph shall be made in such manner as may be prescribed by the Secretary, and shall be made by the
due date (including extension of time) for filing the
taxpayer’s return for the taxable year of the net operating loss. Any such election, once made, shall be irrevocable. Any election under this subparagraph may be
made only with respect to 1 taxable year.
‘‘(iv) ELIGIBLE SMALL BUSINESS.—For purposes of
this subparagraph, the term ‘eligible small business’
has the meaning given such term by subparagraph
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Applicability.
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26 USC 172.
26 USC 172 note.
26 USC 172 note.
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PUBLIC LAW 111–5—FEB. 17, 2009
(F)(iii), except that in applying such subparagraph,
section 448(c) shall be applied by substituting
‘$15,000,000’ for ‘$5,000,000’ each place it appears.’’.
(b) CONFORMING AMENDMENT.—Section 172 is amended by
striking subsection (k) and by redesignating subsection (l) as subsection (k).
(c) ANTI-ABUSE RULES.—The Secretary of Treasury or the Secretary’s designee shall prescribe such rules as are necessary to
prevent the abuse of the purposes of the amendments made by
this section, including anti-stuffing rules, anti-churning rules
(including rules relating to sale-leasebacks), and rules similar to
the rules under section 1091 of the Internal Revenue Code of
1986 relating to losses from wash sales.
(d) EFFECTIVE DATE.—
(1) IN GENERAL.—Except as otherwise provided in this subsection, the amendments made by this section shall apply to
net operating losses arising in taxable years ending after
December 31, 2007.
(2) TRANSITIONAL RULE.—In the case of a net operating
loss for a taxable year ending before the date of the enactment
of this Act—
(A) any election made under section 172(b)(3) of the
Internal Revenue Code of 1986 with respect to such loss
may (notwithstanding such section) be revoked before the
applicable date,
(B) any election made under section 172(b)(1)(H) of
such Code with respect to such loss shall (notwithstanding
such section) be treated as timely made if made before
the applicable date, and
(C) any application under section 6411(a) of such Code
with respect to such loss shall be treated as timely filed
if filed before the applicable date.
For purposes of this paragraph, the term ‘‘applicable date’’
means the date which is 60 days after the date of the enactment
of this Act.
SEC. 1212. DECREASED REQUIRED ESTIMATED TAX PAYMENTS IN 2009
FOR CERTAIN SMALL BUSINESSES.
Applicability.
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Certification.
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Paragraph (1) of section 6654(d) is amended by adding at
the end the following new subparagraph:
‘‘(D) SPECIAL RULE FOR 2009.—
‘‘(i) IN GENERAL.—Notwithstanding subparagraph
(C), in the case of any taxable year beginning in 2009,
clause (ii) of subparagraph (B) shall be applied to any
qualified individual by substituting ‘90 percent’ for ‘100
percent’.
‘‘(ii) QUALIFIED INDIVIDUAL.—For purposes of this
subparagraph, the term ‘qualified individual’ means
any individual if—
‘‘(I) the adjusted gross income shown on the
return of such individual for the preceding taxable
year is less than $500,000, and
‘‘(II) such individual certifies that more than
50 percent of the gross income shown on the return
of such individual for the preceding taxable year
was income from a small business.
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A certification under subclause (II) shall be in such
form and manner and filed at such time as the Secretary may by regulations prescribe.
‘‘(iii) INCOME FROM A SMALL BUSINESS.—For purposes of clause (ii), income from a small business
means, with respect to any individual, income from
a trade or business the average number of employees
of which was less than 500 employees for the calendar
year ending with or within the preceding taxable year
of the individual.
‘‘(iv) SEPARATE RETURNS.—In the case of a married
individual (within the meaning of section 7703) who
files a separate return for the taxable year for which
the amount of the installment is being determined,
clause (ii)(I) shall be applied by substituting ‘$250,000’
for ‘$500,000’.
‘‘(v) ESTATES AND TRUSTS.—In the case of an estate
or trust, adjusted gross income shall be determined
as provided in section 67(e).’’.
PART III—INCENTIVES FOR NEW JOBS
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SEC. 1221. INCENTIVES TO HIRE UNEMPLOYED VETERANS AND DISCONNECTED YOUTH.
(a) IN GENERAL.—Subsection (d) of section 51 is amended by
adding at the end the following new paragraph:
‘‘(14) CREDIT ALLOWED FOR UNEMPLOYED VETERANS AND
DISCONNECTED YOUTH HIRED IN 2009 OR 2010.—
‘‘(A) IN GENERAL.—Any unemployed veteran or disconnected youth who begins work for the employer during
2009 or 2010 shall be treated as a member of a targeted
group for purposes of this subpart.
‘‘(B) DEFINITIONS.—For purposes of this paragraph—
‘‘(i)
UNEMPLOYED
VETERAN.—The
term
‘unemployed veteran’ means any veteran (as defined
in paragraph (3)(B), determined without regard to
clause (ii) thereof) who is certified by the designated
local agency as—
‘‘(I) having been discharged or released from
active duty in the Armed Forces at any time during
the 5-year period ending on the hiring date, and
‘‘(II) being in receipt of unemployment compensation under State or Federal law for not less
than 4 weeks during the 1-year period ending on
the hiring date.
‘‘(ii) DISCONNECTED YOUTH.—The term ‘disconnected youth’ means any individual who is certified
by the designated local agency—
‘‘(I) as having attained age 16 but not age
25 on the hiring date,
‘‘(II) as not regularly attending any secondary,
technical, or post-secondary school during the 6month period preceding the hiring date,
‘‘(III) as not regularly employed during such
6-month period, and
‘‘(IV) as not readily employable by reason of
lacking a sufficient number of basic skills.’’.
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26 USC 51.
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PUBLIC LAW 111–5—FEB. 17, 2009
(b) EFFECTIVE DATE.—The amendments made by this section
shall apply to individuals who begin work for the employer after
December 31, 2008.
PART IV—RULES RELATING TO DEBT
INSTRUMENTS
SEC. 1231. DEFERRAL AND RATABLE INCLUSION OF INCOME ARISING
FROM BUSINESS INDEBTEDNESS DISCHARGED BY THE
REACQUISITION OF A DEBT INSTRUMENT.
26 USC 108.
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Time periods.
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(a) IN GENERAL.—Section 108 (relating to income from discharge of indebtedness) is amended by adding at the end the following new subsection:
‘‘(i) DEFERRAL AND RATABLE INCLUSION OF INCOME ARISING
FROM BUSINESS INDEBTEDNESS DISCHARGED BY THE REACQUISITION
OF A DEBT INSTRUMENT.—
‘‘(1) IN GENERAL.—At the election of the taxpayer, income
from the discharge of indebtedness in connection with the
reacquisition after December 31, 2008, and before January
1, 2011, of an applicable debt instrument shall be includible
in gross income ratably over the 5-taxable-year period beginning
with—
‘‘(A) in the case of a reacquisition occurring in 2009,
the fifth taxable year following the taxable year in which
the reacquisition occurs, and
‘‘(B) in the case of a reacquisition occurring in 2010,
the fourth taxable year following the taxable year in which
the reacquisition occurs.
‘‘(2) DEFERRAL OF DEDUCTION FOR ORIGINAL ISSUE DISCOUNT
IN DEBT FOR DEBT EXCHANGES.—
‘‘(A) IN GENERAL.—If, as part of a reacquisition to
which paragraph (1) applies, any debt instrument is issued
for the applicable debt instrument being reacquired (or
is treated as so issued under subsection (e)(4) and the
regulations thereunder) and there is any original issue
discount determined under subpart A of part V of subchapter P of this chapter with respect to the debt
instrument so issued—
‘‘(i) except as provided in clause (ii), no deduction
otherwise allowable under this chapter shall be allowed
to the issuer of such debt instrument with respect
to the portion of such original issue discount which—
‘‘(I) accrues before the 1st taxable year in the
5-taxable-year period in which income from the
discharge of indebtedness attributable to the
reacquisition of the debt instrument is includible
under paragraph (1), and
‘‘(II) does not exceed the income from the discharge of indebtedness with respect to the debt
instrument being reacquired, and
‘‘(ii) the aggregate amount of deductions disallowed
under clause (i) shall be allowed as a deduction ratably
over the 5-taxable-year period described in clause (i)(I).
If the amount of the original issue discount accruing before
such 1st taxable year exceeds the income from the discharge of indebtedness with respect to the applicable debt
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123 STAT. 339
instrument being reacquired, the deductions shall be disallowed in the order in which the original issue discount
is accrued.
‘‘(B) DEEMED DEBT FOR DEBT EXCHANGES.—For purposes of subparagraph (A), if any debt instrument is issued
by an issuer and the proceeds of such debt instrument
are used directly or indirectly by the issuer to reacquire
an applicable debt instrument of the issuer, the debt
instrument so issued shall be treated as issued for the
debt instrument being reacquired. If only a portion of the
proceeds from a debt instrument are so used, the rules
of subparagraph (A) shall apply to the portion of any
original issue discount on the newly issued debt instrument
which is equal to the portion of the proceeds from such
instrument used to reacquire the outstanding instrument.
‘‘(3) APPLICABLE DEBT INSTRUMENT.—For purposes of this
subsection—
‘‘(A) APPLICABLE DEBT INSTRUMENT.—The term
‘applicable debt instrument’ means any debt instrument
which was issued by—
‘‘(i) a C corporation, or
‘‘(ii) any other person in connection with the conduct of a trade or business by such person.
‘‘(B) DEBT INSTRUMENT.—The term ‘debt instrument’
means a bond, debenture, note, certificate, or any other
instrument or contractual arrangement constituting indebtedness (within the meaning of section 1275(a)(1)).
‘‘(4) REACQUISITION.—For purposes of this subsection—
‘‘(A) IN GENERAL.—The term ‘reacquisition’ means, with
respect to any applicable debt instrument, any acquisition
of the debt instrument by—
‘‘(i) the debtor which issued (or is otherwise the
obligor under) the debt instrument, or
‘‘(ii) a related person to such debtor.
‘‘(B) ACQUISITION.—The term ‘acquisition’ shall, with
respect to any applicable debt instrument, include an
acquisition of the debt instrument for cash, the exchange
of the debt instrument for another debt instrument
(including an exchange resulting from a modification of
the debt instrument), the exchange of the debt instrument
for corporate stock or a partnership interest, and the contribution of the debt instrument to capital. Such term
shall also include the complete forgiveness of the indebtedness by the holder of the debt instrument.
‘‘(5) OTHER DEFINITIONS AND RULES.—For purposes of this
subsection—
‘‘(A) RELATED PERSON.—The determination of whether
a person is related to another person shall be made in
the same manner as under subsection (e)(4).
‘‘(B) ELECTION.—
‘‘(i) IN GENERAL.—An election under this subsection
with respect to any applicable debt instrument shall
be made by including with the return of tax imposed
by chapter 1 for the taxable year in which the
reacquisition of the debt instrument occurs a statement
which—
‘‘(I) clearly identifies such instrument, and
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Regulations.
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123 STAT. 340
‘‘(II) includes the amount of income to which
paragraph (1) applies and such other information
as the Secretary may prescribe.
‘‘(ii) ELECTION IRREVOCABLE.—Such election, once
made, is irrevocable.
‘‘(iii) PASS-THRU ENTITIES.—In the case of a partnership, S corporation, or other pass-thru entity, the
election under this subsection shall be made by the
partnership, the S corporation, or other entity involved.
‘‘(C) COORDINATION WITH OTHER EXCLUSIONS.—If a taxpayer elects to have this subsection apply to an applicable
debt instrument, subparagraphs (A), (B), (C), and (D) of
subsection (a)(1) shall not apply to the income from the
discharge of such indebtedness for the taxable year of the
election or any subsequent taxable year.
‘‘(D) ACCELERATION OF DEFERRED ITEMS.—
‘‘(i) IN GENERAL.—In the case of the death of the
taxpayer, the liquidation or sale of substantially all
the assets of the taxpayer (including in a title 11
or similar case), the cessation of business by the taxpayer, or similar circumstances, any item of income
or deduction which is deferred under this subsection
(and has not previously been taken into account) shall
be taken into account in the taxable year in which
such event occurs (or in the case of a title 11 or
similar case, the day before the petition is filed).
‘‘(ii) SPECIAL RULE FOR PASS-THRU ENTITIES.—The
rule of clause (i) shall also apply in the case of the
sale or exchange or redemption of an interest in a
partnership, S corporation, or other pass- thru entity
by a partner, shareholder, or other person holding
an ownership interest in such entity.
‘‘(6) SPECIAL RULE FOR PARTNERSHIPS.—In the case of a
partnership, any income deferred under this subsection shall
be allocated to the partners in the partnership immediately
before the discharge in the manner such amounts would have
been included in the distributive shares of such partners under
section 704 if such income were recognized at such time. Any
decrease in a partner’s share of partnership liabilities as a
result of such discharge shall not be taken into account for
purposes of section 752 at the time of the discharge to the
extent it would cause the partner to recognize gain under
section 731. Any decrease in partnership liabilities deferred
under the preceding sentence shall be taken into account by
such partner at the same time, and to the extent remaining
in the same amount, as income deferred under this subsection
is recognized.
‘‘(7) SECRETARIAL AUTHORITY.—The Secretary may prescribe such regulations, rules, or other guidance as may be
necessary or appropriate for purposes of applying this subsection, including—
‘‘(A) extending the application of the rules of paragraph
(5)(D) to other circumstances where appropriate,
‘‘(B) requiring reporting of the election (and such other
information as the Secretary may require) on returns of
tax for subsequent taxable years, and
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‘‘(C) rules for the application of this subsection to partnerships, S corporations, and other pass-thru entities,
including for the allocation of deferred deductions.’’.
(b) EFFECTIVE DATE.—The amendments made by this section
shall apply to discharges in taxable years ending after December
31, 2008.
26 USC 108 note.
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SEC. 1232. MODIFICATIONS OF RULES FOR ORIGINAL ISSUE DISCOUNT
ON CERTAIN HIGH YIELD OBLIGATIONS.
(a) SUSPENSION OF SPECIAL RULES.—Section 163(e)(5) (relating
to special rules for original issue discount on certain high yield
obligations) is amended by redesignating subparagraph (F) as
subparagraph (G) and by inserting after subparagraph (E) the
following new subparagraph:
‘‘(F) SUSPENSION OF APPLICATION OF PARAGRAPH.—
‘‘(i) TEMPORARY SUSPENSION.—This paragraph
shall not apply to any applicable high yield discount
obligation issued during the period beginning on September 1, 2008, and ending on December 31, 2009,
in exchange (including an exchange resulting from a
modification of the debt instrument) for an obligation
which is not an applicable high yield discount obligation and the issuer (or obligor) of which is the same
as the issuer (or obligor) of such applicable high yield
discount obligation. The preceding sentence shall not
apply to any obligation the interest on which is interest
described in section 871(h)(4) (without regard to
subparagraph (D) thereof) or to any obligation issued
to a related person (within the meaning of section
108(e)(4)).
‘‘(ii) SUCCESSIVE APPLICATION.—Any obligation to
which clause (i) applies shall not be treated as an
applicable high yield discount obligation for purposes
of applying this subparagraph to any other obligation
issued in exchange for such obligation.
‘‘(iii) SECRETARIAL AUTHORITY TO SUSPEND APPLICATION.—The Secretary may apply this paragraph with
respect to debt instruments issued in periods following
the period described in clause (i) if the Secretary determines that such application is appropriate in light
of distressed conditions in the debt capital markets.’’.
(b) INTEREST RATE USED IN DETERMINING HIGH YIELD OBLIGATIONS.—The last sentence of section 163(i)(1) is amended—
(1) by inserting ‘‘(i)’’ after ‘‘regulation’’, and
(2) by inserting ‘‘, or (ii) permit, on a temporary basis,
a rate to be used with respect to any debt instrument which
is higher than the applicable Federal rate if the Secretary
determines that such rate is appropriate in light of distressed
conditions in the debt capital markets’’ before the period at
the end.
(c) EFFECTIVE DATE.—
(1) SUSPENSION.—The amendments made by subsection (a)
shall apply to obligations issued after August 31, 2008, in
taxable years ending after such date.
(2) INTEREST RATE AUTHORITY.—The amendments made by
subsection (b) shall apply to obligations issued after December
31, 2009, in taxable years ending after such date.
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26 USC 163.
Time period.
26 USC 163 note.
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PUBLIC LAW 111–5—FEB. 17, 2009
PART V—QUALIFIED SMALL BUSINESS STOCK
SEC. 1241. SPECIAL RULES APPLICABLE TO QUALIFIED SMALL BUSINESS STOCK FOR 2009 AND 2010.
(a) IN GENERAL.—Section 1202(a) is amended by adding at
the end the following new paragraph:
‘‘(3) SPECIAL RULES FOR 2009 AND 2010.—In the case of
qualified small business stock acquired after the date of the
enactment of this paragraph and before January 1, 2011—
‘‘(A) paragraph (1) shall be applied by substituting
‘75 percent’ for ‘50 percent’, and
‘‘(B) paragraph (2) shall not apply.’’.
(b) EFFECTIVE DATE.—The amendment made by this section
shall apply to stock acquired after the date of the enactment of
this Act.
26 USC 1202
note.
PART VI—S CORPORATIONS
SEC. 1251. TEMPORARY REDUCTION IN RECOGNITION PERIOD FOR
BUILT-IN GAINS TAX.
(a) IN GENERAL.—Paragraph (7) of section 1374(d) (relating
to definitions and special rules) is amended to read as follows:
‘‘(7) RECOGNITION PERIOD.—
‘‘(A) IN GENERAL.—The term ‘recognition period’ means
the 10-year period beginning with the 1st day of the 1st
taxable year for which the corporation was an S corporation.
‘‘(B) SPECIAL RULE FOR 2009 AND 2010.—In the case
of any taxable year beginning in 2009 or 2010, no tax
shall be imposed on the net recognized built-in gain of
an S corporation if the 7th taxable year in the recognition
period preceded such taxable year. The preceding sentence
shall be applied separately with respect to any asset to
which paragraph (8) applies.
‘‘(C) SPECIAL RULE FOR DISTRIBUTIONS TO SHAREHOLDERS.—For purposes of applying this section to any
amount includible in income by reason of distributions
to shareholders pursuant to section 593(e)—
‘‘(i) subparagraph (A) shall be applied without
regard to the phrase ‘10-year’, and
‘‘(ii) subparagraph (B) shall not apply.’’.
(b) EFFECTIVE DATE.—The amendment made by this section
shall apply to taxable years beginning after December 31, 2008.
26 USC 1374.
Applicability.
Applicability.
26 USC 1374
note.
PART VII—RULES RELATING TO OWNERSHIP
CHANGES
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26 USC 382 note.
SEC. 1261. CLARIFICATION OF REGULATIONS RELATED TO LIMITATIONS ON CERTAIN BUILT-IN LOSSES FOLLOWING AN
OWNERSHIP CHANGE.
(a) FINDINGS.—Congress finds as follows:
(1) The delegation of authority to the Secretary of the
Treasury under section 382(m) of the Internal Revenue Code
of 1986 does not authorize the Secretary to provide exemptions
or special rules that are restricted to particular industries
or classes of taxpayers.
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(2) Internal Revenue Service Notice 2008–83 is inconsistent
with the congressional intent in enacting such section 382(m).
(3) The legal authority to prescribe Internal Revenue
Service Notice 2008–83 is doubtful.
(4) However, as taxpayers should generally be able to rely
on guidance issued by the Secretary of the Treasury legislation
is necessary to clarify the force and effect of Internal Revenue
Service Notice 2008–83 and restore the proper application
under the Internal Revenue Code of 1986 of the limitation
on built-in losses following an ownership change of a bank.
(b) DETERMINATION OF FORCE AND EFFECT OF INTERNAL REVENUE SERVICE NOTICE 2008–83 EXEMPTING BANKS FROM LIMITATION ON CERTAIN BUILT–IN LOSSES FOLLOWING OWNERSHIP
CHANGE.—
(1) IN GENERAL.—Internal Revenue Service Notice 2008–
83—
(A) shall be deemed to have the force and effect of
law with respect to any ownership change (as defined in
section 382(g) of the Internal Revenue Code of 1986) occurring on or before January 16, 2009, and
(B) shall have no force or effect with respect to any
ownership change after such date.
(2) BINDING CONTRACTS.—Notwithstanding paragraph (1),
Internal Revenue Service Notice 2008–83 shall have the force
and effect of law with respect to any ownership change (as
so defined) which occurs after January 16, 2009, if such
change—
(A) is pursuant to a written binding contract entered
into on or before such date, or
(B) is pursuant to a written agreement entered into
on or before such date and such agreement was described
on or before such date in a public announcement or in
a filing with the Securities and Exchange Commission
required by reason of such ownership change.
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SEC. 1262. TREATMENT OF CERTAIN OWNERSHIP CHANGES FOR PURPOSES OF LIMITATIONS ON NET OPERATING LOSS
CARRYFORWARDS AND CERTAIN BUILT-IN LOSSES.
(a) IN GENERAL.—Section 382 is amended by adding at the
end the following new subsection:
‘‘(n) SPECIAL RULE FOR CERTAIN OWNERSHIP CHANGES.—
‘‘(1) IN GENERAL.—The limitation contained in subsection
(a) shall not apply in the case of an ownership change which
is pursuant to a restructuring plan of a taxpayer which—
‘‘(A) is required under a loan agreement or a commitment for a line of credit entered into with the Department
of the Treasury under the Emergency Economic Stabilization Act of 2008, and
‘‘(B) is intended to result in a rationalization of the
costs, capitalization, and capacity with respect to the manufacturing workforce of, and suppliers to, the taxpayer and
its subsidiaries.
‘‘(2) SUBSEQUENT ACQUISITIONS.—Paragraph (1) shall not
apply in the case of any subsequent ownership change unless
such ownership change is described in such paragraph.
‘‘(3) LIMITATION BASED ON CONTROL IN CORPORATION.—
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26 USC 382.
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26 USC 382 note.
PUBLIC LAW 111–5—FEB. 17, 2009
‘‘(A) IN GENERAL.—Paragraph (1) shall not apply in
the case of any ownership change if, immediately after
such ownership change, any person (other than a voluntary
employees’ beneficiary association under section 501(c)(9))
owns stock of the new loss corporation possessing 50 percent or more of the total combined voting power of all
classes of stock entitled to vote, or of the total value of
the stock of such corporation.
‘‘(B) TREATMENT OF RELATED PERSONS.—
‘‘(i) IN GENERAL.—Related persons shall be treated
as a single person for purposes of this paragraph.
‘‘(ii) RELATED PERSONS.—For purposes of clause
(i), a person shall be treated as related to another
person if—
‘‘(I) such person bears a relationship to such
other person described in section 267(b) or 707(b),
or
‘‘(II) such persons are members of a group
of persons acting in concert.’’.
(b) EFFECTIVE DATE.—The amendment made by this section
shall apply to ownership changes after the date of the enactment
of this Act.
Subtitle D—Manufacturing Recovery
Provisions
SEC. 1301. TEMPORARY EXPANSION OF AVAILABILITY OF INDUSTRIAL
DEVELOPMENT BONDS TO FACILITIES MANUFACTURING
INTANGIBLE PROPERTY.
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26 USC 144.
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(a) IN GENERAL.—Subparagraph (C) of section 144(a)(12) is
amended—
(1) by striking ‘‘For purposes of this paragraph, the term’’
and inserting ‘‘For purposes of this paragraph—
‘‘(i) IN GENERAL.—The term’’, and
(2) by striking the last sentence and inserting the following
new clauses:
‘‘(ii) CERTAIN FACILITIES INCLUDED.—Such term
includes facilities which are directly related and
ancillary to a manufacturing facility (determined without regard to this clause) if—
‘‘(I) such facilities are located on the same
site as the manufacturing facility, and
‘‘(II) not more than 25 percent of the net proceeds of the issue are used to provide such facilities.
‘‘(iii) SPECIAL RULES FOR BONDS ISSUED IN 2009
AND 2010.—In the case of any issue made after the
date of enactment of this clause and before January
1, 2011, clause (ii) shall not apply and the net proceeds
from a bond shall be considered to be used to provide
a manufacturing facility if such proceeds are used to
provide—
‘‘(I) a facility which is used in the creation
or production of intangible property which is
described in section 197(d)(1)(C)(iii), or
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‘‘(II) a facility which is functionally related
and subordinate to a manufacturing facility (determined without regard to this subclause) if such
facility is located on the same site as the manufacturing facility.’’.
(b) EFFECTIVE DATE.—The amendments made by this section
shall apply to obligations issued after the date of the enactment
of this Act.
26 USC 144 note.
SEC. 1302. CREDIT FOR INVESTMENT IN ADVANCED ENERGY FACILITIES.
(a) IN GENERAL.—Section 46 (relating to amount of credit)
is amended by striking ‘‘and’’ at the end of paragraph (3), by
striking the period at the end of paragraph (4), and by adding
at the end the following new paragraph:
‘‘(5) the qualifying advanced energy project credit.’’.
(b) AMOUNT OF CREDIT.—Subpart E of part IV of subchapter
A of chapter 1 (relating to rules for computing investment credit)
is amended by inserting after section 48B the following new section:
26 USC 46.
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‘‘SEC. 48C. QUALIFYING ADVANCED ENERGY PROJECT CREDIT.
‘‘(a) IN GENERAL.—For purposes of section 46, the qualifying
advanced energy project credit for any taxable year is an amount
equal to 30 percent of the qualified investment for such taxable
year with respect to any qualifying advanced energy project of
the taxpayer.
‘‘(b) QUALIFIED INVESTMENT.—
‘‘(1) IN GENERAL.—For purposes of subsection (a), the qualified investment for any taxable year is the basis of eligible
property placed in service by the taxpayer during such taxable
year which is part of a qualifying advanced energy project.
‘‘(2) CERTAIN QUALIFIED PROGRESS EXPENDITURES RULES
MADE APPLICABLE.—Rules similar to the rules of subsections
(c)(4) and (d) of section 46 (as in effect on the day before
the enactment of the Revenue Reconciliation Act of 1990) shall
apply for purposes of this section.
‘‘(3) LIMITATION.—The amount which is treated for all taxable years with respect to any qualifying advanced energy
project shall not exceed the amount designated by the Secretary
as eligible for the credit under this section.
‘‘(c) DEFINITIONS.—
‘‘(1) QUALIFYING ADVANCED ENERGY PROJECT.—
‘‘(A) IN GENERAL.—The term ‘qualifying advanced
energy project’ means a project—
‘‘(i) which re-equips, expands, or establishes a
manufacturing facility for the production of—
‘‘(I) property designed to be used to produce
energy from the sun, wind, geothermal deposits
(within the meaning of section 613(e)(2)), or other
renewable resources,
‘‘(II) fuel cells, microturbines, or an energy
storage system for use with electric or hybridelectric motor vehicles,
‘‘(III) electric grids to support the transmission
of intermittent sources of renewable energy,
including storage of such energy,
‘‘(IV) property designed to capture and
sequester carbon dioxide emissions,
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‘‘(V) property designed to refine or blend
renewable fuels or to produce energy conservation
technologies (including energy-conserving lighting
technologies and smart grid technologies),
‘‘(VI) new qualified plug-in electric drive motor
vehicles (as defined by section 30D), qualified plugin electric vehicles (as defined by section 30(d)),
or components which are designed specifically for
use with such vehicles, including electric motors,
generators, and power control units, or
‘‘(VII) other advanced energy property
designed to reduce greenhouse gas emissions as
may be determined by the Secretary, and
‘‘(ii) any portion of the qualified investment of
which is certified by the Secretary under subsection
(d) as eligible for a credit under this section.
‘‘(B) EXCEPTION.—Such term shall not include any portion of a project for the production of any property which
is used in the refining or blending of any transportation
fuel (other than renewable fuels).
‘‘(2) ELIGIBLE PROPERTY.—The term ‘eligible property’
means any property—
‘‘(A) which is necessary for the production of property
described in paragraph (1)(A)(i),
‘‘(B) which is—
‘‘(i) tangible personal property, or
‘‘(ii) other tangible property (not including a
building or its structural components), but only if such
property is used as an integral part of the qualified
investment credit facility, and
‘‘(C) with respect to which depreciation (or amortization
in lieu of depreciation) is allowable.
‘‘(d) QUALIFYING ADVANCED ENERGY PROJECT PROGRAM.—
‘‘(1) ESTABLISHMENT.—
‘‘(A) IN GENERAL.—Not later than 180 days after the
date of enactment of this section, the Secretary, in consultation with the Secretary of Energy, shall establish a qualifying advanced energy project program to consider and
award certifications for qualified investments eligible for
credits under this section to qualifying advanced energy
project sponsors.
‘‘(B) LIMITATION.—The total amount of credits that may
be allocated under the program shall not exceed
$2,300,000,000.
‘‘(2) CERTIFICATION.—
‘‘(A) APPLICATION PERIOD.—Each applicant for certification under this paragraph shall submit an application
containing such information as the Secretary may require
during the 2-year period beginning on the date the Secretary establishes the program under paragraph (1).
‘‘(B) TIME TO MEET CRITERIA FOR CERTIFICATION.—Each
applicant for certification shall have 1 year from the date
of acceptance by the Secretary of the application during
which to provide to the Secretary evidence that the requirements of the certification have been met.
‘‘(C) PERIOD OF ISSUANCE.—An applicant which receives
a certification shall have 3 years from the date of issuance
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of the certification in order to place the project in service
and if such project is not placed in service by that time
period, then the certification shall no longer be valid.
‘‘(3) SELECTION CRITERIA.—In determining which qualifying
advanced energy projects to certify under this section, the Secretary—
‘‘(A) shall take into consideration only those projects
where there is a reasonable expectation of commercial
viability, and
‘‘(B) shall take into consideration which projects—
‘‘(i) will provide the greatest domestic job creation
(both direct and indirect) during the credit period,
‘‘(ii) will provide the greatest net impact in
avoiding or reducing air pollutants or anthropogenic
emissions of greenhouse gases,
‘‘(iii) have the greatest potential for technological
innovation and commercial deployment,
‘‘(iv) have the lowest levelized cost of generated
or stored energy, or of measured reduction in energy
consumption or greenhouse gas emission (based on
costs of the full supply chain), and
‘‘(v) have the shortest project time from certification to completion.
‘‘(4) REVIEW AND REDISTRIBUTION.—
‘‘(A) REVIEW.—Not later than 4 years after the date
of enactment of this section, the Secretary shall review
the credits allocated under this section as of such date.
‘‘(B) REDISTRIBUTION.—The Secretary may reallocate
credits awarded under this section if the Secretary determines that—
‘‘(i) there is an insufficient quantity of qualifying
applications for certification pending at the time of
the review, or
‘‘(ii) any certification made pursuant to paragraph
(2) has been revoked pursuant to paragraph (2)(B)
because the project subject to the certification has been
delayed as a result of third party opposition or litigation to the proposed project.
‘‘(C) REALLOCATION.—If the Secretary determines that
credits under this section are available for reallocation
pursuant to the requirements set forth in paragraph (2),
the Secretary is authorized to conduct an additional program for applications for certification.
‘‘(5) DISCLOSURE OF ALLOCATIONS.—The Secretary shall,
upon making a certification under this subsection, publicly
disclose the identity of the applicant and the amount of the
credit with respect to such applicant.
‘‘(e) DENIAL OF DOUBLE BENEFIT.—A credit shall not be allowed
under this section for any qualified investment for which a credit
is allowed under section 48, 48A, or 48B.’’.
(c) CONFORMING AMENDMENTS.—
(1) Section 49(a)(1)(C) is amended by striking ‘‘and’’ at
the end of clause (iii), by striking the period at the end of
clause (iv) and inserting ‘‘, and’’, and by adding after clause
(iv) the following new clause:
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26 USC 49.
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‘‘(v) the basis of any property which is part of
a qualifying advanced energy project under section
48C.’’.
(2) The table of sections for subpart E of part IV of subchapter A of chapter 1 is amended by inserting after the item
relating to section 48B the following new item:
26 USC 46 note.
‘‘48C. Qualifying advanced energy project credit.’’.
(d) EFFECTIVE DATE.—The amendments
made by this section
shall apply to periods after the date of the enactment of this
Act, under rules similar to the rules of section 48(m) of the Internal
Revenue Code of 1986 (as in effect on the day before the date
of the enactment of the Revenue Reconciliation Act of 1990).
Subtitle E—Economic Recovery Tools
SEC. 1401. RECOVERY ZONE BONDS.
(a) IN GENERAL.—Subchapter Y of chapter 1 is amended by
adding at the end the following new part:
‘‘PART III—RECOVERY ZONE BONDS
‘‘Sec. 1400U–1. Allocation of recovery zone bonds.
‘‘Sec. 1400U–2. Recovery zone economic development bonds.
‘‘Sec. 1400U–3. Recovery zone facility bonds.
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‘‘SEC. 1400U–1. ALLOCATION OF RECOVERY ZONE BONDS.
Waiver authority.
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‘‘(a) ALLOCATIONS.—
‘‘(1) IN GENERAL.—
‘‘(A) GENERAL ALLOCATION.—The Secretary shall allocate the national recovery zone economic development bond
limitation and the national recovery zone facility bond
limitation among the States in the proportion that each
such State’s 2008 State employment decline bears to the
aggregate of the 2008 State employment declines for all
of the States.
‘‘(B) MINIMUM ALLOCATION.—The Secretary shall adjust
the allocations under subparagraph (A) for any calendar
year for each State to the extent necessary to ensure that
no State receives less than 0.9 percent of the national
recovery zone economic development bond limitation and
0.9 percent of the national recovery zone facility bond
limitation.
‘‘(2) 2008 STATE EMPLOYMENT DECLINE.—For purposes of
this subsection, the term ‘2008 State employment decline’
means, with respect to any State, the excess (if any) of—
‘‘(A) the number of individuals employed in such State
determined for December 2007, over
‘‘(B) the number of individuals employed in such State
determined for December 2008.
‘‘(3) ALLOCATIONS BY STATES.—
‘‘(A) IN GENERAL.—Each State with respect to which
an allocation is made under paragraph (1) shall reallocate
such allocation among the counties and large municipalities
in such State in the proportion to each such county’s or
municipality’s 2008 employment decline bears to the aggregate of the 2008 employment declines for all the counties
and municipalities in such State. A county or municipality
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may waive any portion of an allocation made under this
subparagraph.
‘‘(B) LARGE MUNICIPALITIES.—For purposes of subparagraph (A), the term ‘large municipality’ means a municipality with a population of more than 100,000.
‘‘(C)
DETERMINATION
OF
LOCAL
EMPLOYMENT
DECLINES.—For purposes of this paragraph, the employment decline of any municipality or county shall be determined in the same manner as determining the State
employment decline under paragraph (2), except that in
the case of a municipality any portion of which is in a
county, such portion shall be treated as part of such municipality and not part of such county.
‘‘(4) NATIONAL LIMITATIONS.—
‘‘(A) RECOVERY ZONE ECONOMIC DEVELOPMENT
BONDS.—There is a national recovery zone economic
development bond limitation of $10,000,000,000.
‘‘(B) RECOVERY ZONE FACILITY BONDS.—There is a
national recovery zone facility bond limitation of
$15,000,000,000.
‘‘(b) RECOVERY ZONE.—For purposes of this part, the term
‘recovery zone’ means—
‘‘(1) any area designated by the issuer as having significant
poverty, unemployment, rate of home foreclosures, or general
distress,
‘‘(2) any area designated by the issuer as economically
distressed by reason of the closure or realignment of a military
installation pursuant to the Defense Base Closure and Realignment Act of 1990, and
‘‘(3) any area for which a designation as an empowerment
zone or renewal community is in effect.
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‘‘SEC. 1400U–2. RECOVERY ZONE ECONOMIC DEVELOPMENT BONDS.
‘‘(a) IN GENERAL.—In the case of a recovery zone economic
development bond—
‘‘(1) such bond shall be treated as a qualified bond for
purposes of section 6431, and
‘‘(2) subsection (b) of such section shall be applied by substituting ‘45 percent’ for ‘35 percent’.
‘‘(b) RECOVERY ZONE ECONOMIC DEVELOPMENT BOND.—
‘‘(1) IN GENERAL.—For purposes of this section, the term
‘recovery zone economic development bond’ means any build
America bond (as defined in section 54AA(d)) issued before
January 1, 2011, as part of issue if—
‘‘(A) 100 percent of the excess of—
‘‘(i) the available project proceeds (as defined in
section 54A) of such issue, over
‘‘(ii) the amounts in a reasonably required reserve
(within the meaning of section 150(a)(3)) with respect
to such issue,
are to be used for one or more qualified economic development purposes, and
‘‘(B) the issuer designates such bond for purposes of
this section.
‘‘(2) LIMITATION ON AMOUNT OF BONDS DESIGNATED.—The
maximum aggregate face amount of bonds which may be designated by any issuer under paragraph (1) shall not exceed
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the amount of the recovery zone economic development bond
limitation allocated to such issuer under section 1400U–1.
‘‘(c) QUALIFIED ECONOMIC DEVELOPMENT PURPOSE.—For purposes of this section, the term ‘qualified economic development
purpose’ means expenditures for purposes of promoting development
or other economic activity in a recovery zone, including—
‘‘(1) capital expenditures paid or incurred with respect to
property located in such zone,
‘‘(2) expenditures for public infrastructure and construction
of public facilities, and
‘‘(3) expenditures for job training and educational programs.
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‘‘SEC. 1400U–3. RECOVERY ZONE FACILITY BONDS.
Applicability.
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‘‘(a) IN GENERAL.—For purposes of part IV of subchapter B
(relating to tax exemption requirements for State and local bonds),
the term ‘exempt facility bond’ includes any recovery zone facility
bond.
‘‘(b) RECOVERY ZONE FACILITY BOND.—
‘‘(1) IN GENERAL.—For purposes of this section, the term
‘recovery zone facility bond’ means any bond issued as part
of an issue if—
‘‘(A) 95 percent or more of the net proceeds (as defined
in section 150(a)(3)) of such issue are to be used for recovery
zone property,
‘‘(B) such bond is issued before January 1, 2011, and
‘‘(C) the issuer designates such bond for purposes of
this section.
‘‘(2) LIMITATION ON AMOUNT OF BONDS DESIGNATED.—The
maximum aggregate face amount of bonds which may be designated by any issuer under paragraph (1) shall not exceed
the amount of recovery zone facility bond limitation allocated
to such issuer under section 1400U–1.
‘‘(c) RECOVERY ZONE PROPERTY.—For purposes of this section—
‘‘(1) IN GENERAL.—The term ‘recovery zone property’ means
any property to which section 168 applies (or would apply
but for section 179) if—
‘‘(A) such property was constructed, reconstructed, renovated, or acquired by purchase (as defined in section
179(d)(2)) by the taxpayer after the date on which the
designation of the recovery zone took effect,
‘‘(B) the original use of which in the recovery zone
commences with the taxpayer, and
‘‘(C) substantially all of the use of which is in the
recovery zone and is in the active conduct of a qualified
business by the taxpayer in such zone.
‘‘(2) QUALIFIED BUSINESS.—The term ‘qualified business’
means any trade or business except that—
‘‘(A) the rental to others of real property located in
a recovery zone shall be treated as a qualified business
only if the property is not residential rental property (as
defined in section 168(e)(2)), and
‘‘(B) such term shall not include any trade or business
consisting of the operation of any facility described in section 144(c)(6)(B).
‘‘(3) SPECIAL RULES FOR SUBSTANTIAL RENOVATIONS AND
SALE-LEASEBACK.—Rules similar to the rules of subsections
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(a)(2) and (b) of section 1397D shall apply for purposes of
this subsection.
‘‘(d) NONAPPLICATION OF CERTAIN RULES.—Sections 146
(relating to volume cap) and 147(d) (relating to acquisition of
existing property not permitted) shall not apply to any recovery
zone facility bond.’’.
(b) CLERICAL AMENDMENT.—The table of parts for subchapter
Y of chapter 1 of such Code is amended by adding at the end
the following new item:
‘‘PART III. RECOVERY ZONE BONDS.’’.
(c) EFFECTIVE DATE.—The amendments made by this section
shall apply to obligations issued after the date of the enactment
of this Act.
26 USC 1400U–1
note.
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SEC. 1402. TRIBAL ECONOMIC DEVELOPMENT BONDS.
(a) IN GENERAL.—Section 7871 is amended by adding at the
end the following new subsection:
‘‘(f) TRIBAL ECONOMIC DEVELOPMENT BONDS.—
‘‘(1) ALLOCATION OF LIMITATION.—
‘‘(A) IN GENERAL.—The Secretary shall allocate the
national tribal economic development bond limitation
among the Indian tribal governments in such manner as
the Secretary, in consultation with the Secretary of the
Interior, determines appropriate.
‘‘(B) NATIONAL LIMITATION.—There is a national tribal
economic development bond limitation of $2,000,000,000.
‘‘(2) BONDS TREATED AS EXEMPT FROM TAX.—In the case
of a tribal economic development bond—
‘‘(A) notwithstanding subsection (c), such bond shall
be treated for purposes of this title in the same manner
as if such bond were issued by a State,
‘‘(B) the Indian tribal government issuing such bond
and any instrumentality of such Indian tribal government
shall be treated as a State for purposes of section 141,
and
‘‘(C) section 146 shall not apply.
‘‘(3) TRIBAL ECONOMIC DEVELOPMENT BOND.—
‘‘(A) IN GENERAL.—For purposes of this section, the
term ‘tribal economic development bond’ means any bond
issued by an Indian tribal government—
‘‘(i) the interest on which would be exempt from
tax under section 103 if issued by a State or local
government, and
‘‘(ii) which is designated by the Indian tribal
government as a tribal economic development bond
for purposes of this subsection.
‘‘(B) EXCEPTIONS.—Such term shall not include any
bond issued as part of an issue if any portion of the proceeds
of such issue are used to finance—
‘‘(i) any portion of a building in which class II
or class III gaming (as defined in section 4 of the
Indian Gaming Regulatory Act) is conducted or housed
or any other property actually used in the conduct
of such gaming, or
‘‘(ii) any facility located outside the Indian reservation (as defined in section 168(j)(6)).
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26 USC 7871.
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Deadline.
Reports.
26 USC 7871
note.
PUBLIC LAW 111–5—FEB. 17, 2009
‘‘(C) LIMITATION ON AMOUNT OF BONDS DESIGNATED.—
The maximum aggregate face amount of bonds which may
be designated by any Indian tribal government under
subparagraph (A) shall not exceed the amount of national
tribal economic development bond limitation allocated to
such government under paragraph (1).’’.
(b) STUDY.—The Secretary of the Treasury, or the Secretary’s
delegate, shall conduct a study of the effects of the amendment
made by subsection (a). Not later than 1 year after the date of
the enactment of this Act, the Secretary of the Treasury, or the
Secretary’s delegate, shall report to Congress on the results of
the study conducted under this paragraph, including the Secretary’s
recommendations regarding such amendment.
(c) EFFECTIVE DATE.—The amendment made by subsection (a)
shall apply to obligations issued after the date of the enactment
of this Act.
SEC. 1403. INCREASE IN NEW MARKETS TAX CREDIT.
26 USC 45.
26 USC 45D
note.
(a) IN GENERAL.—Section 45D(f)(1) is amended—
(1) by striking ‘‘and’’ at the end of subparagraph (C),
(2) by striking ‘‘, 2007, 2008, and 2009.’’ in subparagraph
(D), and inserting ‘‘and 2007,’’, and
(3) by adding at the end the following new subparagraphs:
‘‘(E) $5,000,000,000 for 2008, and
‘‘(F) $5,000,000,000 for 2009.’’.
(b) SPECIAL RULE FOR ALLOCATION OF INCREASED 2008 LIMITATION.—The amount of the increase in the new markets tax credit
limitation for calendar year 2008 by reason of the amendments
made by subsection (a) shall be allocated in accordance with section
45D(f)(2) of the Internal Revenue Code of 1986 to qualified community development entities (as defined in section 45D(c) of such
Code) which—
(1) submitted an allocation application with respect to calendar year 2008, and
(2)(A) did not receive an allocation for such calendar year,
or
(B) received an allocation for such calendar year in an
amount less than the amount requested in the allocation
application.
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SEC. 1404. COORDINATION OF LOW-INCOME HOUSING CREDIT AND
LOW-INCOME HOUSING GRANTS.
Subsection (i) of section 42 is amended by adding at the end
the following new paragraph:
‘‘(9) COORDINATION WITH LOW-INCOME HOUSING GRANTS.—
‘‘(A) REDUCTION IN STATE HOUSING CREDIT CEILING FOR
LOW-INCOME HOUSING GRANTS RECEIVED IN 2009.—For purposes of this section, the amounts described in clauses
(i) through (iv) of subsection (h)(3)(C) with respect to any
State for 2009 shall each be reduced by so much of such
amount as is taken into account in determining the amount
of any grant to such State under section 1602 of the American Recovery and Reinvestment Tax Act of 2009.
‘‘(B) SPECIAL RULE FOR BASIS.—Basis of a qualified
low-income building shall not be reduced by the amount
of any grant described in subparagraph (A).’’.
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Subtitle F—Infrastructure Financing Tools
PART I—IMPROVED MARKETABILITY FOR TAXEXEMPT BONDS
SEC. 1501. DE MINIMIS SAFE HARBOR EXCEPTION FOR TAX-EXEMPT
INTEREST EXPENSE OF FINANCIAL INSTITUTIONS.
(a) IN GENERAL.—Subsection (b) of section 265 is amended
by adding at the end the following new paragraph:
‘‘(7) DE MINIMIS EXCEPTION FOR BONDS ISSUED DURING 2009
OR 2010.—
‘‘(A) IN GENERAL.—In applying paragraph (2)(A), there
shall not be taken into account tax-exempt obligations
issued during 2009 or 2010.
‘‘(B) LIMITATION.—The amount of tax-exempt obligations not taken into account by reason of subparagraph
(A) shall not exceed 2 percent of the amount determined
under paragraph (2)(B).
‘‘(C) REFUNDINGS.—For purposes of this paragraph, a
refunding bond (whether a current or advance refunding)
shall be treated as issued on the date of the issuance
of the refunded bond (or in the case of a series of
refundings, the original bond).’’.
(b) TREATMENT AS FINANCIAL INSTITUTION PREFERENCE ITEM.—
Clause (iv) of section 291(e)(1)(B) is amended by adding at the
end the following: ‘‘That portion of any obligation not taken into
account under paragraph (2)(A) of section 265(b) by reason of paragraph (7) of such section shall be treated for purposes of this
section as having been acquired on August 7, 1986.’’.
(c) EFFECTIVE DATE.—The amendments made by this section
shall apply to obligations issued after December 31, 2008.
26 USC 265.
26 USC 265 note.
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SEC. 1502. MODIFICATION OF SMALL ISSUER EXCEPTION TO TAXEXEMPT INTEREST EXPENSE ALLOCATION RULES FOR
FINANCIAL INSTITUTIONS.
(a) IN GENERAL.—Paragraph (3) of section 265(b) (relating to
exception for certain tax-exempt obligations) is amended by adding
at the end the following new subparagraph:
‘‘(G) SPECIAL RULES FOR OBLIGATIONS ISSUED DURING
2009 AND 2010.—
‘‘(i) INCREASE IN LIMITATION.—In the case of obligations issued during 2009 or 2010, subparagraphs (C)(i),
(D)(i), and (D)(iii)(II) shall each be applied by substituting ‘$30,000,000’ for ‘$10,000,000’.
‘‘(ii) QUALIFIED 501(C)(3) BONDS TREATED AS ISSUED
BY EXEMPT ORGANIZATION.—In the case of a qualified
501(c)(3) bond (as defined in section 145) issued during
2009 or 2010, this paragraph shall be applied by
treating the 501(c)(3) organization for whose benefit
such bond was issued as the issuer.
‘‘(iii) SPECIAL RULE FOR QUALIFIED FINANCINGS.—
In the case of a qualified financing issue issued during
2009 or 2010—
‘‘(I) subparagraph (F) shall not apply, and
‘‘(II) any obligation issued as a part of such
issue shall be treated as a qualified tax-exempt
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Applicability.
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26 USC 265 note.
PUBLIC LAW 111–5—FEB. 17, 2009
obligation if the requirements of this paragraph
are met with respect to each qualified portion of
the issue (determined by treating each qualified
portion as a separate issue which is issued by
the qualified borrower with respect to which such
portion relates).
‘‘(iv) QUALIFIED FINANCING ISSUE.—For purposes
of this subparagraph, the term ‘qualified financing
issue’ means any composite, pooled, or other conduit
financing issue the proceeds of which are used directly
or indirectly to make or finance loans to 1 or more
ultimate borrowers each of whom is a qualified borrower.
‘‘(v) QUALIFIED PORTION.—For purposes of this
subparagraph, the term ‘qualified portion’ means that
portion of the proceeds which are used with respect
to each qualified borrower under the issue.
‘‘(vi) QUALIFIED BORROWER.—For purposes of this
subparagraph, the term ‘qualified borrower’ means a
borrower which is a State or political subdivision
thereof or an organization described in section 501(c)(3)
and exempt from taxation under section 501(a).’’.
(b) EFFECTIVE DATE.—The amendment made by this section
shall apply to obligations issued after December 31, 2008.
SEC. 1503. TEMPORARY MODIFICATION OF ALTERNATIVE MINIMUM
TAX LIMITATIONS ON TAX-EXEMPT BONDS.
(a) INTEREST ON PRIVATE ACTIVITY BONDS ISSUED DURING 2009
2010 NOT TREATED AS TAX PREFERENCE ITEM.—Subparagraph
(C) of section 57(a)(5) is amended by adding at the end a new
clause:
‘‘(vi) EXCEPTION FOR BONDS ISSUED IN 2009 AND
2010.—
‘‘(I) IN GENERAL.—For purposes of clause (i),
the term ‘private activity bond’ shall not include
any bond issued after December 31, 2008, and
before January 1, 2011.
‘‘(II) TREATMENT OF REFUNDING BONDS.—For
purposes of subclause (I), a refunding bond
(whether a current or advance refunding) shall
be treated as issued on the date of the issuance
of the refunded bond (or in the case of a series
of refundings, the original bond).
‘‘(III) EXCEPTION FOR CERTAIN REFUNDING
BONDS.—Subclause (II) shall not apply to any
refunding bond which is issued to refund any bond
which was issued after December 31, 2003, and
before January 1, 2009.’’.
(b) NO ADJUSTMENT TO ADJUSTED CURRENT EARNINGS FOR
INTEREST ON TAX-EXEMPT BONDS ISSUED DURING 2009 AND 2010.—
Subparagraph (B) of section 56(g)(4) is amended by adding at the
end the following new clause:
‘‘(iv) TAX EXEMPT INTEREST ON BONDS ISSUED IN
2009 AND 2010.—
‘‘(I) IN GENERAL.—Clause (i) shall not apply
in the case of any interest on a bond issued after
December 31, 2008, and before January 1, 2011.
AND
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‘‘(II) TREATMENT OF REFUNDING BONDS.—For
purposes of subclause (I), a refunding bond
(whether a current or advance refunding) shall
be treated as issued on the date of the issuance
of the refunded bond (or in the case of a series
of refundings, the original bond).
‘‘(III) EXCEPTION FOR CERTAIN REFUNDING
BONDS.—Subclause (II) shall not apply to any
refunding bond which is issued to refund any bond
which was issued after December 31, 2003, and
before January 1, 2009.’’.
(c) EFFECTIVE DATE.—The amendments made by this section
shall apply to obligations issued after December 31, 2008.
26 USC 56 note.
SEC. 1504. MODIFICATION TO HIGH SPEED INTERCITY RAIL FACILITY
BONDS.
(a) IN GENERAL.—Paragraph (1) of section 142(i) is amended
by striking ‘‘operate at speeds in excess of’’ and inserting ‘‘be capable
of attaining a maximum speed in excess of’’.
(b) EFFECTIVE DATE.—The amendment made by this section
shall apply to obligations issued after the date of the enactment
of this Act.
26 USC 142.
26 USC 142 note.
PART II—DELAY IN APPLICATION OF WITHHOLDING TAX ON GOVERNMENT CONTRACTORS
SEC. 1511. DELAY IN APPLICATION OF WITHHOLDING TAX ON GOVERNMENT CONTRACTORS.
26 USC 3402
note.
Subsection (b) of section 511 of the Tax Increase Prevention
and Reconciliation Act of 2005 is amended by striking ‘‘December
31, 2010’’ and inserting ‘‘December 31, 2011’’.
26 USC 3402.
PART III—TAX CREDIT BONDS FOR SCHOOLS
SEC. 1521. QUALIFIED SCHOOL CONSTRUCTION BONDS.
(a) IN GENERAL.—Subpart I of part IV of subchapter A of
chapter 1 is amended by adding at the end the following new
section:
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‘‘SEC. 54F. QUALIFIED SCHOOL CONSTRUCTION BONDS.
‘‘(a) QUALIFIED SCHOOL CONSTRUCTION BOND.—For purposes
of this subchapter, the term ‘qualified school construction bond’
means any bond issued as part of an issue if—
‘‘(1) 100 percent of the available project proceeds of such
issue are to be used for the construction, rehabilitation, or
repair of a public school facility or for the acquisition of land
on which such a facility is to be constructed with part of
the proceeds of such issue,
‘‘(2) the bond is issued by a State or local government
within the jurisdiction of which such school is located, and
‘‘(3) the issuer designates such bond for purposes of this
section.
‘‘(b) LIMITATION ON AMOUNT OF BONDS DESIGNATED.—The maximum aggregate face amount of bonds issued during any calendar
year which may be designated under subsection (a) by any issuer
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PUBLIC LAW 111–5—FEB. 17, 2009
shall not exceed the limitation amount allocated under subsection
(d) for such calendar year to such issuer.
‘‘(c) NATIONAL LIMITATION ON AMOUNT OF BONDS DESIGNATED.—There is a national qualified school construction bond
limitation for each calendar year. Such limitation is—
‘‘(1) $11,000,000,000 for 2009,
‘‘(2) $11,000,000,000 for 2010, and
‘‘(3) except as provided in subsection (e), zero after 2010.
‘‘(d) ALLOCATION OF LIMITATION.—
‘‘(1) ALLOCATION AMONG STATES.—Except as provided in
paragraph (2)(C), the limitation applicable under subsection
(c) for any calendar year shall be allocated by the Secretary
among the States in proportion to the respective amounts each
such State is eligible to receive under section 1124 of the
Elementary and Secondary Education Act of 1965 (20 U.S.C.
6333) for the most recent fiscal year ending before such calendar
year. The limitation amount allocated to a State under the
preceding sentence shall be allocated by the State to issuers
within such State.
‘‘(2) 40 PERCENT OF LIMITATION ALLOCATED AMONG LARGEST
SCHOOL DISTRICTS.—
‘‘(A) IN GENERAL.—40 percent of the limitation
applicable under subsection (c) for any calendar year shall
be allocated under subparagraph (B) by the Secretary
among local educational agencies which are large local
educational agencies for such year.
‘‘(B) ALLOCATION FORMULA.—The amount to be allocated under subparagraph (A) for any calendar year shall
be allocated among large local educational agencies in
proportion to the respective amounts each such agency
received under section 1124 of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 6333) for the
most recent fiscal year ending before such calendar year.
‘‘(C) REDUCTION IN STATE ALLOCATION.—The allocation
to any State under paragraph (1) shall be reduced by
the aggregate amount of the allocations under this paragraph to large local educational agencies within such State.
‘‘(D) ALLOCATION OF UNUSED LIMITATION TO STATE.—
The amount allocated under this paragraph to a large
local educational agency for any calendar year may be
reallocated by such agency to the State in which such
agency is located for such calendar year. Any amount
reallocated to a State under the preceding sentence may
be allocated as provided in paragraph (1).
‘‘(E) LARGE LOCAL EDUCATIONAL AGENCY.—For purposes of this paragraph, the term ‘large local educational
agency’ means, with respect to a calendar year, any local
educational agency if such agency is—
‘‘(i) among the 100 local educational agencies with
the largest numbers of children aged 5 through 17
from families living below the poverty level, as determined by the Secretary using the most recent data
available from the Department of Commerce that are
satisfactory to the Secretary, or
‘‘(ii) 1 of not more than 25 local educational agencies (other than those described in clause (i)) that
the Secretary of Education determines (based on the
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most recent data available satisfactory to the Secretary) are in particular need of assistance, based on
a low level of resources for school construction, a high
level of enrollment growth, or such other factors as
the Secretary deems appropriate.
‘‘(3) ALLOCATIONS TO CERTAIN POSSESSIONS.—The amount
to be allocated under paragraph (1) to any possession of the
United States other than Puerto Rico shall be the amount
which would have been allocated if all allocations under paragraph (1) were made on the basis of respective populations
of individuals below the poverty line (as defined by the Office
of Management and Budget). In making other allocations, the
amount to be allocated under paragraph (1) shall be reduced
by the aggregate amount allocated under this paragraph to
possessions of the United States.
‘‘(4) ALLOCATIONS FOR INDIAN SCHOOLS.—In addition to the
amounts otherwise allocated under this subsection,
$200,000,000 for calendar year 2009, and $200,000,000 for calendar year 2010, shall be allocated by the Secretary of the
Interior for purposes of the construction, rehabilitation, and
repair of schools funded by the Bureau of Indian Affairs. In
the case of amounts allocated under the preceding sentence,
Indian tribal governments (as defined in section 7701(a)(40))
shall be treated as qualified issuers for purposes of this subchapter.
‘‘(e) CARRYOVER OF UNUSED LIMITATION.—If for any calendar
year—
‘‘(1) the amount allocated under subsection (d) to any State,
exceeds
‘‘(2) the amount of bonds issued during such year which
are designated under subsection (a) pursuant to such allocation,
the limitation amount under such subsection for such State for
the following calendar year shall be increased by the amount of
such excess. A similar rule shall apply to the amounts allocated
under subsection (d)(4).’’.
(b) CONFORMING AMENDMENTS.—
(1) Paragraph (1) of section 54A(d) is amended by striking
‘‘or’’ at the end of subparagraph (C), by inserting ‘‘or’’ at the
end of subparagraph (D), and by inserting after subparagraph
(D) the following new subparagraph:
‘‘(E) a qualified school construction bond,’’.
(2) Subparagraph (C) of section 54A(d)(2) is amended by
striking ‘‘and’’ at the end of clause (iii), by striking the period
at the end of clause (iv) and inserting ‘‘, and’’, and by adding
at the end the following new clause:
‘‘(v) in the case of a qualified school construction
bond, a purpose specified in section 54F(a)(1).’’.
(3) The table of sections for subpart I of part IV of subchapter A of chapter 1 is amended by adding at the end the
following new item:
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‘‘Sec. 54F. Qualified school construction bonds.’’.
(c) EFFECTIVE DATE.—The amendments
made by this section
shall apply to obligations issued after the date of the enactment
of this Act.
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26 USC 54.
26 USC 54A note.
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PUBLIC LAW 111–5—FEB. 17, 2009
SEC. 1522. EXTENSION AND EXPANSION OF QUALIFIED ZONE ACADEMY
BONDS.
26 USC 54.
26 USC 54E note.
(a) IN GENERAL.—Section 54E(c)(1) is amended by striking ‘‘and
2009’’ and inserting ‘‘and $1,400,000,000 for 2009 and 2010’’.
(b) EFFECTIVE DATE.—The amendment made by this section
shall apply to obligations issued after December 31, 2008.
PART IV—BUILD AMERICA BONDS
SEC. 1531. BUILD AMERICA BONDS.
(a) IN GENERAL.—Part IV of subchapter A of chapter 1 is
amended by adding at the end the following new subpart:
‘‘Subpart J—Build America Bonds
‘‘Sec. 54AA. Build America bonds.
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‘‘SEC. 54AA. BUILD AMERICA BONDS.
‘‘(a) IN GENERAL.—If a taxpayer holds a build America bond
on one or more interest payment dates of the bond during any
taxable year, there shall be allowed as a credit against the tax
imposed by this chapter for the taxable year an amount equal
to the sum of the credits determined under subsection (b) with
respect to such dates.
‘‘(b) AMOUNT OF CREDIT.—The amount of the credit determined
under this subsection with respect to any interest payment date
for a build America bond is 35 percent of the amount of interest
payable by the issuer with respect to such date .
‘‘(c) LIMITATION BASED ON AMOUNT OF TAX.—
‘‘(1) IN GENERAL.—The credit allowed under subsection (a)
for any taxable year shall not exceed the excess of—
‘‘(A) the sum of the regular tax liability (as defined
in section 26(b)) plus the tax imposed by section 55, over
‘‘(B) the sum of the credits allowable under this part
(other than subpart C and this subpart).
‘‘(2) CARRYOVER OF UNUSED CREDIT.—If the credit allowable
under subsection (a) exceeds the limitation imposed by paragraph (1) for such taxable year, such excess shall be carried
to the succeeding taxable year and added to the credit allowable
under subsection (a) for such taxable year (determined before
the application of paragraph (1) for such succeeding taxable
year).
‘‘(d) BUILD AMERICA BOND.—
‘‘(1) IN GENERAL.—For purposes of this section, the term
‘build America bond’ means any obligation (other than a private
activity bond) if—
‘‘(A) the interest on such obligation would (but for
this section) be excludable from gross income under section
103,
‘‘(B) such obligation is issued before January 1, 2011,
and
‘‘(C) the issuer makes an irrevocable election to have
this section apply.
‘‘(2) APPLICABLE RULES.—For purposes of applying paragraph (1)—
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‘‘(A) for purposes of section 149(b), a build America
bond shall not be treated as federally guaranteed by reason
of the credit allowed under subsection (a) or section 6431,
‘‘(B) for purposes of section 148, the yield on a build
America bond shall be determined without regard to the
credit allowed under subsection (a), and
‘‘(C) a bond shall not be treated as a build America
bond if the issue price has more than a de minimis amount
(determined under rules similar to the rules of section
1273(a)(3)) of premium over the stated principal amount
of the bond.
‘‘(e) INTEREST PAYMENT DATE.—For purposes of this section,
the term ‘interest payment date’ means any date on which the
holder of record of the build America bond is entitled to a payment
of interest under such bond.
‘‘(f) SPECIAL RULES.—
‘‘(1) INTEREST ON BUILD AMERICA BONDS INCLUDIBLE IN
GROSS INCOME FOR FEDERAL INCOME TAX PURPOSES.—For purposes of this title, interest on any build America bond shall
be includible in gross income.
‘‘(2) APPLICATION OF CERTAIN RULES.—Rules similar to the
rules of subsections (f), (g), (h), and (i) of section 54A shall
apply for purposes of the credit allowed under subsection (a).
‘‘(g) SPECIAL RULE FOR QUALIFIED BONDS ISSUED BEFORE
2011.—In the case of a qualified bond issued before January 1,
2011—
‘‘(1) ISSUER ALLOWED REFUNDABLE CREDIT.—In lieu of any
credit allowed under this section with respect to such bond,
the issuer of such bond shall be allowed a credit as provided
in section 6431.
‘‘(2) QUALIFIED BOND.—For purposes of this subsection, the
term ‘qualified bond’ means any build America bond issued
as part of an issue if—
‘‘(A) 100 percent of the excess of—
‘‘(i) the available project proceeds (as defined in
section 54A) of such issue, over
‘‘(ii) the amounts in a reasonably required reserve
(within the meaning of section 150(a)(3)) with respect
to such issue,
are to be used for capital expenditures, and
‘‘(B) the issuer makes an irrevocable election to have
this subsection apply.
‘‘(h) REGULATIONS.—The Secretary may prescribe such regulations and other guidance as may be necessary or appropriate to
carry out this section and section 6431.’’.
(b) CREDIT FOR QUALIFIED BONDS ISSUED BEFORE 2011.—Subchapter B of chapter 65 is amended by adding at the end the
following new section:
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‘‘SEC. 6431. CREDIT FOR QUALIFIED BONDS ALLOWED TO ISSUER.
‘‘(a) IN GENERAL.—In the case of a qualified bond issued before
January 1, 2011, the issuer of such bond shall be allowed a credit
with respect to each interest payment under such bond which
shall be payable by the Secretary as provided in subsection (b).
‘‘(b) PAYMENT OF CREDIT.—The Secretary shall pay (contemporaneously with each interest payment date under such bond)
to the issuer of such bond (or to any person who makes such
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interest payments on behalf of the issuer) 35 percent of the interest
payable under such bond on such date.
‘‘(c) APPLICATION OF ARBITRAGE RULES.—For purposes of section
148, the yield on a qualified bond shall be reduced by the credit
allowed under this section.
‘‘(d) INTEREST PAYMENT DATE.—For purposes of this subsection,
the term ‘interest payment date’ means each date on which interest
is payable by the issuer under the terms of the bond.
‘‘(e) QUALIFIED BOND.—For purposes of this subsection, the
term ‘qualified bond’ has the meaning given such term in section
54AA(g).’’.
(c) CONFORMING AMENDMENTS.—
(1) Section 1324(b)(2) of title 31, United States Code, is
amended by striking ‘‘or 6428’’ and inserting ‘‘6428, or 6431,’’.
(2) Section 54A(c)(1)(B) is amended by striking ‘‘subpart
C’’ and inserting ‘‘subparts C and J’’.
(3) Sections 54(c)(2), 1397E(c)(2), and 1400N(l)(3)(B) are
each amended by striking ‘‘and I’’ and inserting ‘‘, I, and J’’.
(4) Section 6211(b)(4)(A) is amended by striking ‘‘and 6428’’
and inserting ‘‘6428, and 6431’’.
(5) Section 6401(b)(1) is amended by striking ‘‘and I’’ and
inserting ‘‘I, and J’’.
(6) The table of subparts for part IV of subchapter A
of chapter 1 is amended by adding at the end the following
new item:
26 USC 54.
‘‘SUBPART J.
BUILD AMERICA BONDS.’’.
(7) The table of section for subchapter B of chapter 65
is amended by adding at the end the following new item:
‘‘Sec. 6431. Credit for qualified bonds allowed to issuer.’’.
(d) TRANSITIONAL COORDINATION WITH STATE
26 USC 54AA
note.
26 USC 54 note.
LAW.—Except as
otherwise provided by a State after the date of the enactment
of this Act, the interest on any build America bond (as defined
in section 54AA of the Internal Revenue Code of 1986, as added
by this section) and the amount of any credit determined under
such section with respect to such bond shall be treated for purposes
of the income tax laws of such State as being exempt from Federal
income tax.
(e) EFFECTIVE DATE.—The amendments made by this section
shall apply to obligations issued after the date of the enactment
of this Act.
PART V—REGULATED INVESTMENT COMPANIES ALLOWED TO PASS-THRU TAX CREDIT
BOND CREDITS
SEC. 1541. REGULATED INVESTMENT COMPANIES ALLOWED TO PASSTHRU TAX CREDIT BOND CREDITS.
(a) IN GENERAL.—Part I of subchapter M of chapter 1 is
amended by inserting after section 853 the following new section:
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‘‘SEC. 853A. CREDITS FROM TAX CREDIT BONDS ALLOWED TO SHAREHOLDERS.
‘‘(a) GENERAL RULE.—A regulated investment company—
‘‘(1) which holds (directly or indirectly) one or more tax
credit bonds on one or more applicable dates during the taxable
year, and
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‘‘(2) which meets the requirements of section 852(a) for
the taxable year,
may elect the application of this section with respect to credits
allowable to the investment company during such taxable year
with respect to such bonds.
‘‘(b) EFFECT OF ELECTION.—If the election provided in subsection (a) is in effect for any taxable year—
‘‘(1) the regulated investment company shall not be allowed
any credits to which subsection (a) applies for such taxable
year,
‘‘(2) the regulated investment company shall—
‘‘(A) include in gross income (as interest) for such taxable year an amount equal to the amount that such investment company would have included in gross income with
respect to such credits if this section did not apply, and
‘‘(B) increase the amount of the dividends paid deduction for such taxable year by the amount of such income,
and
‘‘(3) each shareholder of such investment company shall—
‘‘(A) include in gross income an amount equal to such
shareholder’s proportionate share of the interest income
attributable to such credits, and
‘‘(B) be allowed the shareholder’s proportionate share
of such credits against the tax imposed by this chapter.
‘‘(c) NOTICE TO SHAREHOLDERS.—For purposes of subsection
(b)(3), the shareholder’s proportionate share of—
‘‘(1) credits described in subsection (a), and
‘‘(2) gross income in respect of such credits,
shall not exceed the amounts so designated by the regulated investment company in a written notice mailed to its shareholders not
later than 60 days after the close of its taxable year.
‘‘(d) MANNER OF MAKING ELECTION AND NOTIFYING SHAREHOLDERS.—The election provided in subsection (a) and the notice
to shareholders required by subsection (c) shall be made in such
manner as the Secretary may prescribe.
‘‘(e) DEFINITIONS AND SPECIAL RULES.—
‘‘(1) DEFINITIONS.—For purposes of this subsection—
‘‘(A) TAX CREDIT BOND.—The term ‘tax credit bond’
means—
‘‘(i) a qualified tax credit bond (as defined in section
54A(d)),
‘‘(ii) a build America bond (as defined in section
54AA(d)), and
‘‘(iii) any bond for which a credit is allowable under
subpart H of part IV of subchapter A of this chapter.
‘‘(B) APPLICABLE DATE.—The term ‘applicable date’
means—
‘‘(i) in the case of a qualified tax credit bond or
a bond described in subparagraph (A)(iii), any credit
allowance date (as defined in section 54A(e)(1)), and
‘‘(ii) in the case of a build America bond (as defined
in section 54AA(d)), any interest payment date (as
defined in section 54AA(e)).
‘‘(2) STRIPPED TAX CREDIT BONDS.—If the ownership of a
tax credit bond is separated from the credit with respect to
such bond, subsection (a) shall be applied by reference to the
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instruments evidencing the entitlement to the credit rather
than the tax credit bond.
‘‘(f) REGULATIONS, ETC.—The Secretary shall prescribe such
regulations or other guidance as may be necessary or appropriate
to carry out the purposes of this section, including methods for
determining a shareholder’s proportionate share of credits.’’.
(b) CONFORMING AMENDMENTS.—
(1) Section 54(l) is amended by striking paragraph (4) and
by redesignating paragraphs (5) and (6) as paragraphs (4) and
(5), respectively.
(2) Section 54A(h) is amended to read as follows:
‘‘(h) BONDS HELD BY REAL ESTATE INVESTMENT TRUSTS.—If
any qualified tax credit bond is held by a real estate investment
trust, the credit determined under subsection (a) shall be allowed
to beneficiaries of such trust (and any gross income included under
subsection (f) with respect to such credit shall be distributed to
such beneficiaries) under procedures prescribed by the Secretary.’’.
(3) The table of sections for part I of subchapter M of
chapter 1 is amended by inserting after the item relating to
section 853 the following new item:
26 USC 54.
Procedures.
26 USC 54 note.
‘‘Sec. 853A. Credits from tax credit bonds allowed to shareholders.’’.
(c) EFFECTIVE DATE.—The amendments made by
this section
shall apply to taxable years ending after the date of the enactment
of this Act.
Subtitle G—Other Provisions
26 USC 54C note.
SEC.
1601.
APPLICATION OF CERTAIN LABOR STANDARDS TO
PROJECTS FINANCED WITH CERTAIN TAX-FAVORED
BONDS.
Subchapter IV of chapter 31 of the title 40, United States
Code, shall apply to projects financed with the proceeds of—
(1) any new clean renewable energy bond (as defined in
section 54C of the Internal Revenue Code of 1986) issued after
the date of the enactment of this Act,
(2) any qualified energy conservation bond (as defined in
section 54D of the Internal Revenue Code of 1986) issued
after the date of the enactment of this Act,
(3) any qualified zone academy bond (as defined in section
54E of the Internal Revenue Code of 1986) issued after the
date of the enactment of this Act,
(4) any qualified school construction bond (as defined in
section 54F of the Internal Revenue Code of 1986), and
(5) any recovery zone economic development bond (as
defined in section 1400U–2 of the Internal Revenue Code of
1986).
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26 USC 42 note.
SEC. 1602. GRANTS TO STATES FOR LOW-INCOME HOUSING PROJECTS
IN LIEU OF LOW-INCOME HOUSING CREDIT ALLOCATIONS FOR 2009.
(a) IN GENERAL.—The Secretary of the Treasury shall make
a grant to the housing credit agency of each State in an amount
equal to such State’s low-income housing grant election amount.
(b) LOW-INCOME HOUSING GRANT ELECTION AMOUNT.—For purposes of this section, the term ‘‘low-income housing grant election
amount’’ means, with respect to any State, such amount as the
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State may elect which does not exceed 85 percent of the product
of—
(1) the sum of—
(A) 100 percent of the State housing credit ceiling
for 2009 which is attributable to amounts described in
clauses (i) and (iii) of section 42(h)(3)(C) of the Internal
Revenue Code of 1986, and
(B) 40 percent of the State housing credit ceiling for
2009 which is attributable to amounts described in clauses
(ii) and (iv) of such section, multiplied by
(2) 10.
(c) SUBAWARDS FOR LOW-INCOME BUILDINGS.—
(1) IN GENERAL.—A State housing credit agency receiving
a grant under this section shall use such grant to make subawards to finance the construction or acquisition and rehabilitation of qualified low-income buildings. A subaward under this
section may be made to finance a qualified low-income building
with or without an allocation under section 42 of the Internal
Revenue Code of 1986, except that a State housing credit agency
may make subawards to finance qualified low-income buildings
without an allocation only if it makes a determination that
such use will increase the total funds available to the State
to build and rehabilitate affordable housing. In complying with
such determination requirement, a State housing credit agency
shall establish a process in which applicants that are allocated
credits are required to demonstrate good faith efforts to obtain
investment commitments for such credits before the agency
makes such subawards.
(2) SUBAWARDS SUBJECT TO SAME REQUIREMENTS AS LOWINCOME HOUSING CREDIT ALLOCATIONS.—Any such subaward
with respect to any qualified low-income building shall be made
in the same manner and shall be subject to the same limitations
(including rent, income, and use restrictions on such building)
as an allocation of housing credit dollar amount allocated by
such State housing credit agency under section 42 of the
Internal Revenue Code of 1986, except that such subawards
shall not be limited by, or otherwise affect (except as provided
in subsection (h)(3)(J) of such section), the State housing credit
ceiling applicable to such agency.
(3) COMPLIANCE AND ASSET MANAGEMENT.—The State
housing credit agency shall perform asset management functions to ensure compliance with section 42 of the Internal
Revenue Code of 1986 and the long-term viability of buildings
funded by any subaward under this section. The State housing
credit agency may collect reasonable fees from a subaward
recipient to cover expenses associated with the performance
of its duties under this paragraph. The State housing credit
agency may retain an agent or other private contractor to
satisfy the requirements of this paragraph.
(4) RECAPTURE.—The State housing credit agency shall
impose conditions or restrictions, including a requirement providing for recapture, on any subaward under this section so
as to assure that the building with respect to which such
subaward is made remains a qualified low-income building
during the compliance period. Any such recapture shall be
payable to the Secretary of the Treasury for deposit in the
general fund of the Treasury and may be enforced by means
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of liens or such other methods as the Secretary of the Treasury
determines appropriate.
(d) RETURN OF UNUSED GRANT FUNDS.—Any grant funds not
used to make subawards under this section before January 1, 2011,
shall be returned to the Secretary of the Treasury on such date.
Any subawards returned to the State housing credit agency on
or after such date shall be promptly returned to the Secretary
of the Treasury. Any amounts returned to the Secretary of the
Treasury under this subsection shall be deposited in the general
fund of the Treasury.
(e) DEFINITIONS.—Any term used in this section which is also
used in section 42 of the Internal Revenue Code of 1986 shall
have the same meaning for purposes of this section as when used
in such section 42. Any reference in this section to the Secretary
of the Treasury shall be treated as including the Secretary’s delegate.
(f) APPROPRIATIONS.—There is hereby appropriated to the Secretary of the Treasury such sums as may be necessary to carry
out this section.
Deadline.
26 USC 48 note.
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PUBLIC LAW 111–5—FEB. 17, 2009
SEC. 1603. GRANTS FOR SPECIFIED ENERGY PROPERTY IN LIEU OF
TAX CREDITS.
(a) IN GENERAL.—Upon application, the Secretary of the
Treasury shall, subject to the requirements of this section, provide
a grant to each person who places in service specified energy property to reimburse such person for a portion of the expense of
such property as provided in subsection (b). No grant shall be
made under this section with respect to any property unless such
property—
(1) is placed in service during 2009 or 2010, or
(2) is placed in service after 2010 and before the credit
termination date with respect to such property, but only if
the construction of such property began during 2009 or 2010.
(b) GRANT AMOUNT.—
(1) IN GENERAL.—The amount of the grant under subsection
(a) with respect to any specified energy property shall be the
applicable percentage of the basis of such property.
(2) APPLICABLE PERCENTAGE.—For purposes of paragraph
(1), the term ‘‘applicable percentage’’ means—
(A) 30 percent in the case of any property described
in paragraphs (1) through (4) of subsection (d), and
(B) 10 percent in the case of any other property.
(3) DOLLAR LIMITATIONS.—In the case of property described
in paragraph (2), (6), or (7) of subsection (d), the amount
of any grant under this section with respect to such property
shall not exceed the limitation described in section 48(c)(1)(B),
48(c)(2)(B), or 48(c)(3)(B) of the Internal Revenue Code of 1986,
respectively, with respect to such property.
(c) TIME FOR PAYMENT OF GRANT.—The Secretary of the
Treasury shall make payment of any grant under subsection (a)
during the 60-day period beginning on the later of—
(1) the date of the application for such grant, or
(2) the date the specified energy property for which the
grant is being made is placed in service.
(d) SPECIFIED ENERGY PROPERTY.—For purposes of this section,
the term ‘‘specified energy property’’ means any of the following:
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 365
(1) QUALIFIED FACILITIES.—Any qualified property (as
defined in section 48(a)(5)(D) of the Internal Revenue Code
of 1986) which is part of a qualified facility (within the meaning
of section 45 of such Code) described in paragraph (1), (2),
(3), (4), (6), (7), (9), or (11) of section 45(d) of such Code.
(2) QUALIFIED FUEL CELL PROPERTY.—Any qualified fuel
cell property (as defined in section 48(c)(1) of such Code).
(3) SOLAR PROPERTY.—Any property described in clause
(i) or (ii) of section 48(a)(3)(A) of such Code.
(4) QUALIFIED SMALL WIND ENERGY PROPERTY.—Any qualified small wind energy property (as defined in section 48(c)(4)
of such Code).
(5) GEOTHERMAL PROPERTY.—Any property described in
clause (iii) of section 48(a)(3)(A) of such Code.
(6) QUALIFIED MICROTURBINE PROPERTY.—Any qualified
microturbine property (as defined in section 48(c)(2) of such
Code).
(7) COMBINED HEAT AND POWER SYSTEM PROPERTY.—Any
combined heat and power system property (as defined in section
48(c)(3) of such Code).
(8) GEOTHERMAL HEAT PUMP PROPERTY.—Any property
described in clause (vii) of section 48(a)(3)(A) of such Code.
Such term shall not include any property unless depreciation (or
amortization in lieu of depreciation) is allowable with respect to
such property.
(e) CREDIT TERMINATION DATE.—For purposes of this section,
the term ‘‘credit termination date’’ means—
(1) in the case of any specified energy property which
is part of a facility described in paragraph (1) of section 45(d)
of the Internal Revenue Code of 1986, January 1, 2013,
(2) in the case of any specified energy property which
is part of a facility described in paragraph (2), (3), (4), (6),
(7), (9), or (11) of section 45(d) of such Code, January 1, 2014,
and
(3) in the case of any specified energy property described
in section 48 of such Code, January 1, 2017.
In the case of any property which is described in paragraph (3)
and also in another paragraph of this subsection, paragraph (3)
shall apply with respect to such property.
(f) APPLICATION OF CERTAIN RULES.—In making grants under
this section, the Secretary of the Treasury shall apply rules similar
to the rules of section 50 of the Internal Revenue Code of 1986.
In applying such rules, if the property is disposed of, or otherwise
ceases to be specified energy property, the Secretary of the Treasury
shall provide for the recapture of the appropriate percentage of
the grant amount in such manner as the Secretary of the Treasury
determines appropriate.
(g) EXCEPTION FOR CERTAIN NON-TAXPAYERS.—The Secretary
of the Treasury shall not make any grant under this section to—
(1) any Federal, State, or local government (or any political
subdivision, agency, or instrumentality thereof),
(2) any organization described in section 501(c) of the
Internal Revenue Code of 1986 and exempt from tax under
section 501(a) of such Code,
(3) any entity referred to in paragraph (4) of section 54(j)
of such Code, or
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123 STAT. 366
PUBLIC LAW 111–5—FEB. 17, 2009
(4) any partnership or other pass-thru entity any partner
(or other holder of an equity or profits interest) of which is
described in paragraph (1), (2) or (3).
(h) DEFINITIONS.—Terms used in this section which are also
used in section 45 or 48 of the Internal Revenue Code of 1986
shall have the same meaning for purposes of this section as when
used in such section 45 or 48. Any reference in this section to
the Secretary of the Treasury shall be treated as including the
Secretary’s delegate.
(i) APPROPRIATIONS.—There is hereby appropriated to the Secretary of the Treasury such sums as may be necessary to carry
out this section.
(j) TERMINATION.—The Secretary of the Treasury shall not make
any grant to any person under this section unless the application
of such person for such grant is received before October 1, 2011.
Deadline.
SEC. 1604. INCREASE IN PUBLIC DEBT LIMIT.
31 USC 3101.
Subsection (b) of section 3101 of title 31, United States Code,
is amended by striking out the dollar limitation contained in such
subsection and inserting ‘‘$12,104,000,000,000’’.
Subtitle H—Prohibition on Collection of
Certain Payments Made Under the Continued Dumping and Subsidy Offset Act
of 2000
19 USC 1675c
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SEC. 1701. PROHIBITION ON COLLECTION OF CERTAIN PAYMENTS
MADE UNDER THE CONTINUED DUMPING AND SUBSIDY
OFFSET ACT OF 2000.
(a) IN GENERAL.—Notwithstanding any other provision of law,
neither the Secretary of Homeland Security nor any other person
may—
(1) require repayment of, or attempt in any other way
to recoup, any payments described in subsection (b); or
(2) offset any past, current, or future distributions of antidumping or countervailing duties assessed with respect to
imports from countries that are not parties to the North American Free Trade Agreement in an attempt to recoup any payments described in subsection (b).
(b) PAYMENTS DESCRIBED.—Payments described in this subsection are payments of antidumping or countervailing duties made
pursuant to the Continued Dumping and Subsidy Offset Act of
2000 (section 754 of the Tariff Act of 1930 (19 U.S.C. 1675c; repealed
by subtitle F of title VII of the Deficit Reduction Act of 2005
(Public Law 109–171; 120 Stat. 154))) that were—
(1) assessed and paid on imports of goods from countries
that are parties to the North American Free Trade Agreement;
and
(2) distributed on or after January 1, 2001, and before
January 1, 2006.
(c) PAYMENT OF FUNDS COLLECTED OR WITHHELD.—Not later
than the date that is 60 days after the date of the enactment
of this Act, the Secretary of Homeland Security shall—
(1) refund any repayments, or any other recoupment, of
payments described in subsection (b); and
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 367
(2) fully distribute any antidumping or countervailing
duties that the U.S. Customs and Border Protection is withholding as an offset as described in subsection (a)(2).
(d) LIMITATION.—Nothing in this section shall be construed
to prevent the Secretary of Homeland Security, or any other person,
from requiring repayment of, or attempting to otherwise recoup,
any payments described in subsection (b) as a result of—
(1) a finding of false statements or other misconduct by
a recipient of such a payment; or
(2) the reliquidation of an entry with respect to which
such a payment was made.
Subtitle I—Trade Adjustment Assistance
SEC. 1800. SHORT TITLE.
This subtitle may be cited as the ‘‘Trade and Globalization
Adjustment Assistance Act of 2009’’.
Trade and
Globalization
Adjustment
Assistance Act
of 2009.
19 USC 2101
note.
PART I—TRADE ADJUSTMENT ASSISTANCE
FOR WORKERS
Subpart A—Trade Adjustment Assistance for
Service Sector Workers
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SEC. 1801. EXTENSION OF TRADE ADJUSTMENT ASSISTANCE TO
SERVICE SECTOR AND PUBLIC AGENCY WORKERS;
SHIFTS IN PRODUCTION.
(a) DEFINITIONS.—Section 247 of the Trade Act of 1974 (19
U.S.C. 2319) is amended—
(1) in paragraph (1)—
(A) by striking ‘‘or appropriate subdivision of a firm’’;
and
(B) by striking ‘‘or subdivision’’;
(2) in paragraph (2), by striking ‘‘employment—’’ and all
that follows and inserting ‘‘employment, has been totally or
partially separated from such employment.’’;
(3) by inserting after paragraph (2) the following:
‘‘(3) Subject to section 222(d)(5), the term ‘firm’ means—
‘‘(A) a firm, including an agricultural firm, service
sector firm, or public agency; or
‘‘(B) an appropriate subdivision thereof.’’;
(4) by inserting after paragraph (6) the following:
‘‘(7) The term ‘public agency’ means a department or agency
of a State or local government or of the Federal Government,
or a subdivision thereof.’’;
(5) in paragraph (11), by striking ‘‘, or in a subdivision
of which,’’; and
(6) by adding at the end the following:
‘‘(18) The term ‘service sector firm’ means a firm engaged
in the business of supplying services.’’.
(b) GROUP ELIGIBILITY REQUIREMENTS.—Section 222 of the
Trade Act of 1974 (19 U.S.C. 2272) is amended—
(1) in subsection (a)(2)—
(A) by amending subparagraph (A)(ii) to read as follows:
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Certification.
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PUBLIC LAW 111–5—FEB. 17, 2009
‘‘(ii)(I) imports of articles or services like or directly
competitive with articles produced or services supplied by such
firm have increased;
‘‘(II) imports of articles like or directly competitive with
articles—
‘‘(aa) into which one or more component parts produced
by such firm are directly incorporated, or
‘‘(bb) which are produced directly using services supplied by such firm,
have increased; or
‘‘(III) imports of articles directly incorporating one or more
component parts produced outside the United States that are
like or directly competitive with imports of articles incorporating one or more component parts produced by such firm
have increased; and’’; and
(B) by amending subparagraph (B) to read as follows:
‘‘(B)(i)(I) there has been a shift by such workers’ firm
to a foreign country in the production of articles or the supply
of services like or directly competitive with articles which are
produced or services which are supplied by such firm; or
‘‘(II) such workers’ firm has acquired from a foreign country
articles or services that are like or directly competitive with
articles which are produced or services which are supplied
by such firm; and
‘‘(ii) the shift described in clause (i)(I) or the acquisition
of articles or services described in clause (i)(II) contributed
importantly to such workers’ separation or threat of separation.’’;
(2) by redesignating subsections (b) and (c) as subsections
(c) and (d), respectively; and
(3) by inserting after subsection (a) the following:
‘‘(b) ADVERSELY AFFECTED WORKERS IN PUBLIC AGENCIES.—
A group of workers in a public agency shall be certified by the
Secretary as eligible to apply for adjustment assistance under this
chapter pursuant to a petition filed under section 221 if the Secretary determines that—
‘‘(1) a significant number or proportion of the workers
in the public agency have become totally or partially separated,
or are threatened to become totally or partially separated;
‘‘(2) the public agency has acquired from a foreign country
services like or directly competitive with services which are
supplied by such agency; and
‘‘(3) the acquisition of services described in paragraph (2)
contributed importantly to such workers’ separation or threat
of separation.’’.
(c) BASIS FOR SECRETARY’S DETERMINATIONS.—Section 222 of
the Trade Act of 1974 (19 U.S.C. 2272), as amended, is further
amended by adding at the end the following:
‘‘(e) BASIS FOR SECRETARY’S DETERMINATIONS.—
‘‘(1) IN GENERAL.—The Secretary shall, in determining
whether to certify a group of workers under section 223, obtain
from the workers’ firm, or a customer of the workers’ firm,
information the Secretary determines to be necessary to make
the certification, through questionnaires and in such other
manner as the Secretary determines appropriate.
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123 STAT. 369
‘‘(2) ADDITIONAL INFORMATION.—The Secretary may seek
additional information to determine whether to certify a group
of workers under subsection (a), (b), or (c)—
‘‘(A) by contacting—
‘‘(i) officials or employees of the workers’ firm;
‘‘(ii) officials of customers of the workers’ firm;
‘‘(iii) officials of certified or recognized unions or
other duly authorized representatives of the group of
workers; or
‘‘(iv) one-stop operators or one-stop partners (as
defined in section 101 of the Workforce Investment
Act of 1998 (29 U.S.C. 2801)); or
‘‘(B) by using other available sources of information.
‘‘(3) VERIFICATION OF INFORMATION.—
‘‘(A) CERTIFICATION.—The Secretary shall require a
firm or customer to certify—
‘‘(i) all information obtained under paragraph (1)
from the firm or customer (as the case may be) through
questionnaires; and
‘‘(ii) all other information obtained under paragraph (1) from the firm or customer (as the case may
be) on which the Secretary relies in making a determination under section 223, unless the Secretary has
a reasonable basis for determining that such information is accurate and complete without being certified.
‘‘(B) USE OF SUBPOENAS.—The Secretary shall require
the workers’ firm or a customer of the workers’ firm to
provide information requested by the Secretary under paragraph (1) by subpoena pursuant to section 249 if the firm
or customer (as the case may be) fails to provide the
information within 20 days after the date of the Secretary’s
request, unless the firm or customer (as the case may
be) demonstrates to the satisfaction of the Secretary that
the firm or customer (as the case may be) will provide
the information within a reasonable period of time.
‘‘(C) PROTECTION OF CONFIDENTIAL INFORMATION.—The
Secretary may not release information obtained under paragraph (1) that the Secretary considers to be confidential
business information unless the firm or customer (as the
case may be) submitting the confidential business information had notice, at the time of submission, that the information would be released by the Secretary, or the firm or
customer (as the case may be) subsequently consents to
the release of the information. Nothing in this subparagraph shall be construed to prohibit the Secretary from
providing such confidential business information to a court
in camera or to another party under a protective order
issued by a court.’’.
(d) PENALTIES.—Section 244 of the Trade Act of 1974 (19 U.S.C.
2316) is amended to read as follows:
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‘‘SEC. 244. PENALTIES.
‘‘Any person who—
‘‘(1) makes a false statement of a material fact knowing
it to be false, or knowingly fails to disclose a material fact,
for the purpose of obtaining or increasing for that person or
for any other person any payment authorized to be furnished
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123 STAT. 370
PUBLIC LAW 111–5—FEB. 17, 2009
under this chapter or pursuant to an agreement under section
239, or
‘‘(2) makes a false statement of a material fact knowing
it to be false, or knowingly fails to disclose a material fact,
when providing information to the Secretary during an investigation of a petition under section 221,
shall be imprisoned for not more than one year, or fined under
title 18, United States Code, or both.’’.
(e) CONFORMING AMENDMENTS.—
(1) Section 221(a) of the Trade Act of 1974 (19 U.S.C.
2271(a)) is amended—
(A) in paragraph (1)—
(i) in the matter preceding subparagraph (A)—
(I) by striking ‘‘Secretary’’ and inserting ‘‘Secretary of Labor’’; and
(II) by striking ‘‘or subdivision’’ and inserting
‘‘(as defined in section 247)’’; and
(ii) in subparagraph (A), by striking ‘‘(including
workers in an agricultural firm or subdivision of any
agricultural firm)’’;
(B) in paragraph (2)(A), by striking ‘‘rapid response
assistance’’ and inserting ‘‘rapid response activities’’; and
(C) in paragraph (3), by inserting ‘‘and on the website
of the Department of Labor’’ after ‘‘Federal Register’’.
(2) Section 222 of the Trade Act of 1974 (19 U.S.C. 2272),
as amended, is further amended—
(A) by striking ‘‘(including workers in any agricultural
firm or subdivision of an agricultural firm)’’ each place
it appears;
(B) in subsection (a)—
(i) in paragraph (1), by striking ‘‘, or an appropriate
subdivision of the firm,’’; and
(ii) in paragraph (2), by striking ‘‘or subdivision’’
each place it appears;
(C) in subsection (c) (as redesignated)—
(i) in paragraph (2)—
(I) by striking ‘‘(or subdivision)’’ each place
it appears;
(II) by inserting ‘‘or service’’ after ‘‘the article’’;
and
(III) by striking ‘‘(c) (3)’’ and inserting ‘‘(d)
(3)’’; and
(ii) in paragraph (3), by striking ‘‘(or subdivision)’’
each place it appears; and
(D) in subsection (d) (as redesignated)—
(i) by striking ‘‘For purposes’’ and inserting
‘‘DEFINITIONS.—For purposes’’;
(ii) in paragraph (2), by striking ‘‘, or appropriate
subdivision of a firm,’’ each place it appears;
(iii) by amending paragraph (3) to read as follows:
‘‘(3) DOWNSTREAM PRODUCER.—
‘‘(A) IN GENERAL.—The term ‘downstream producer’
means a firm that performs additional, value-added production processes or services directly for another firm for articles or services with respect to which a group of workers
in such other firm has been certified under subsection
(a).
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123 STAT. 371
‘‘(B) VALUE-ADDED PRODUCTION PROCESSES OR SERVpurposes of subparagraph (A), value-added
production processes or services include final assembly,
finishing, testing, packaging, or maintenance or transportation services.’’;
(iv) in paragraph (4)—
(I) by striking ‘‘(or subdivision)’’; and
(II) by inserting ‘‘, or services, used in the
production of articles or in the supply of services,
as the case may be,’’ after ‘‘for articles’’; and
(v) by adding at the end the following:
‘‘(5) REFERENCE TO FIRM.—For purposes of subsection (a),
the term ‘firm’ does not include a public agency.’’.
(3) Section 231(a)(2) of the Trade Act of 1974 (19 U.S.C.
2291(a)(2)) is amended—
(A) in the matter preceding subparagraph (A), by
striking ‘‘or subdivision of a firm’’; and
(B) in subparagraph (C), by striking ‘‘or subdivision’’.
ICES.—For
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SEC. 1802. SEPARATE BASIS FOR CERTIFICATION.
Section 222 of the Trade Act of 1974 (19 U.S.C. 2272), as
amended, is further amended by adding at the end the following:
‘‘(f) FIRMS IDENTIFIED BY THE INTERNATIONAL TRADE COMMISSION.—Notwithstanding any other provision of this chapter, a group
of workers covered by a petition filed under section 221 shall
be certified under subsection (a) as eligible to apply for adjustment
assistance under this chapter if—
‘‘(1) the workers’ firm is publicly identified by name by
the International Trade Commission as a member of a domestic
industry in an investigation resulting in—
‘‘(A) an affirmative determination of serious injury or
threat thereof under section 202(b)(1);
‘‘(B) an affirmative determination of market disruption
or threat thereof under section 421(b)(1); or
‘‘(C) an affirmative final determination of material
injury or threat thereof under section 705(b)(1)(A) or
735(b)(1)(A) of the Tariff Act of 1930 (19 U.S.C.
1671d(b)(1)(A) and 1673d(b)(1)(A));
‘‘(2) the petition is filed during the one-year period beginning on the date on which—
‘‘(A) a summary of the report submitted to the President by the International Trade Commission under section
202(f)(1) with respect to the affirmative determination
described in paragraph (1)(A) is published in the Federal
Register under section 202(f)(3); or
‘‘(B) notice of an affirmative determination described
in subparagraph (B) or (C) of paragraph (1) is published
in the Federal Register; and
‘‘(3) the workers have become totally or partially separated
from the workers’ firm within—
‘‘(A) the one-year period described in paragraph (2);
or
‘‘(B) notwithstanding section 223(b), the one-year
period preceding the one-year period described in paragraph (2).’’.
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Time period.
Notice.
Federal Register,
publication.
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PUBLIC LAW 111–5—FEB. 17, 2009
SEC. 1803. DETERMINATIONS BY SECRETARY OF LABOR.
Criteria.
Deadline.
Section 223 of the Trade Act of 1974 (19 U.S.C. 2273) is
amended—
(1) in subsection (b), by striking ‘‘or appropriate subdivision
of the firm before his application’’ and all that follows and
inserting ‘‘before the worker’s application under section 231
occurred more than one year before the date of the petition
on which such certification was granted.’’;
(2) in subsection (c), by striking ‘‘together with his reasons’’
and inserting ‘‘and on the website of the Department of Labor,
together with the Secretary’s reasons’’;
(3) in subsection (d)—
(A) by striking ‘‘or subdivision of the firm’’ and all
that follows through ‘‘he shall’’ and inserting ‘‘, that total
or partial separations from such firm are no longer attributable to the conditions specified in section 222, the Secretary shall’’; and
(B) by striking ‘‘together with his reasons’’ and
inserting ‘‘and on the website of the Department of Labor,
together with the Secretary’s reasons’’; and
(4) by adding at the end the following:
‘‘(e) STANDARDS FOR INVESTIGATIONS AND DETERMINATIONS.—
‘‘(1) IN GENERAL.—The Secretary shall establish standards,
including data requirements, for investigations of petitions filed
under section 221 and criteria for making determinations under
subsection (a).
‘‘(2) CONSULTATIONS.—Not less than 90 days before issuing
a final rule with respect to the standards required under paragraph (1), the Secretary shall consult with the Committee on
Finance of the Senate and the Committee on Ways and Means
of the House of Representatives with respect to such rule.’’.
SEC. 1804. MONITORING AND REPORTING RELATING TO SERVICE
SECTOR.
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(a) IN GENERAL.—Section 282 of the Trade Act of 1974 (19
U.S.C. 2393) is amended—
(1) in the heading, by striking ‘‘SYSTEM’’ and inserting
‘‘AND DATA COLLECTION’’;
(2) in the first sentence—
(A) by striking ‘‘The Secretary’’ and inserting ‘‘(a) MONITORING PROGRAMS.—The Secretary’’;
(B) by inserting ‘‘and services’’ after ‘‘imports of articles’’;
(C) by inserting ‘‘and domestic supply of services’’ after
‘‘domestic production’’;
(D) by inserting ‘‘or supplying services’’ after ‘‘producing articles’’; and
(E) by inserting ‘‘, or supply of services,’’ after ‘‘changes
in production’’; and
(3) by adding at the end the following:
‘‘(b) COLLECTION OF DATA AND REPORTS ON SERVICE SECTOR.—
‘‘(1) SECRETARY OF LABOR.—Not later than 90 days after
the date of the enactment of this subsection, the Secretary
of Labor shall implement a system to collect data on adversely
affected workers employed in the service sector that includes
the number of workers by State and industry, and by the
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cause of the dislocation of each worker, as identified in the
certification.
‘‘(2) SECRETARY OF COMMERCE.—Not later than 1 year after
such date of enactment, the Secretary of Commerce shall, in
consultation with the Secretary of Labor, conduct a study and
submit to the Committee on Finance of the Senate and the
Committee on Ways and Means of the House of Representatives
a report on ways to improve the timeliness and coverage of
data on trade in services, including methods to identify
increased imports due to the relocation of United States firms
to foreign countries, and increased imports due to United States
firms acquiring services from firms in foreign countries.’’.
(b) CLERICAL AMENDMENT.—The table of contents of the Trade
Act of 1974 is amended by striking the item relating to section
282 and inserting the following:
‘‘Sec. 282. Trade monitoring and data collection.’’.
(c) EFFECTIVE DATE.—The amendments
made by this section
shall take effect on the date of the enactment of this Act.
Study.
19 USC 2393
note.
Subpart B—Industry Notifications Following
Certain Affirmative Determinations
SEC.
1811.
NOTIFICATIONS FOLLOWING
DETERMINATIONS.
CERTAIN
AFFIRMATIVE
(a) IN GENERAL.—Section 224 of the Trade Act of 1974 (19
U.S.C. 2274) is amended—
(1) by amending the heading to read as follows:
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‘‘SEC. 224. STUDY AND NOTIFICATIONS REGARDING CERTAIN AFFIRMATIVE DETERMINATIONS; INDUSTRY NOTIFICATION OF
ASSISTANCE.’’;
(2) in subsection (a), by striking ‘‘Whenever’’ and inserting
‘‘STUDY OF DOMESTIC INDUSTRY.—Whenever’’;
(3) in subsection (b)—
(A) by striking ‘‘The report’’ and inserting ‘‘REPORT
BY THE SECRETARY.—The report’’; and
(B) by inserting ‘‘and on the website of the Department
of Labor’’ after ‘‘Federal Register’’; and
(4) by adding at the end the following:
‘‘(c) NOTIFICATIONS FOLLOWING AFFIRMATIVE GLOBAL SAFEGUARD DETERMINATIONS.—Upon making an affirmative determination under section 202(b)(1), the Commission shall promptly notify
the Secretary of Labor and the Secretary of Commerce and, in
the case of a determination with respect to an agricultural commodity, the Secretary of Agriculture, of the determination.
‘‘(d) NOTIFICATIONS FOLLOWING AFFIRMATIVE BILATERAL OR
PLURILATERAL SAFEGUARD DETERMINATIONS.—
‘‘(1) NOTIFICATIONS OF DETERMINATIONS OF MARKET DISRUPTION.—Upon making an affirmative determination under section 421(b)(1), the Commission shall promptly notify the Secretary of Labor and the Secretary of Commerce and, in the
case of a determination with respect to an agricultural commodity, the Secretary of Agriculture, of the determination.
‘‘(2) NOTIFICATIONS REGARDING TRADE AGREEMENT SAFEGUARDS.—Upon making an affirmative determination in a proceeding initiated under an applicable safeguard provision (other
than a provision described in paragraph (3)) that is enacted
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123 STAT. 374
PUBLIC LAW 111–5—FEB. 17, 2009
to implement a trade agreement to which the United States
is a party, the Commission shall promptly notify the Secretary
of Labor and the Secretary of Commerce and, in the case
of a determination with respect to an agricultural commodity,
the Secretary of Agriculture, of the determination.
‘‘(3) NOTIFICATIONS REGARDING TEXTILE AND APPAREL SAFEGUARDS.—Upon making an affirmative determination in a proceeding initiated under any safeguard provision relating to
textile and apparel articles that is enacted to implement a
trade agreement to which the United States is a party, the
President shall promptly notify the Secretary of Labor and
the Secretary of Commerce of the determination.
‘‘(e) NOTIFICATIONS FOLLOWING CERTAIN AFFIRMATIVE DETERMINATIONS UNDER TITLE VII OF THE TARIFF ACT OF 1930.—Upon
making an affirmative determination under section 705(b)(1)(A)
or 735(b)(1)(A) of the Tariff Act of 1930 (19 U.S.C. 1671d(b)(1)(A)
and 1673d(b)(1)(A)), the Commission shall promptly notify the Secretary of Labor and the Secretary of Commerce and, in the case
of a determination with respect to an agricultural commodity, the
Secretary of Agriculture, of the determination.
‘‘(f) INDUSTRY NOTIFICATION OF ASSISTANCE.—Upon receiving
a notification of a determination under subsection (c), (d), or (e)
with respect to a domestic industry—
‘‘(1) the Secretary of Labor shall—
‘‘(A) notify the representatives of the domestic industry
affected by the determination, firms publicly identified by
name during the course of the proceeding relating to the
determination, and any certified or recognized union or,
to the extent practicable, other duly authorized representative of workers employed by such representatives of the
domestic industry, of—
‘‘(i) the allowances, training, employment services,
and other benefits available under this chapter;
‘‘(ii) the manner in which to file a petition and
apply for such benefits; and
‘‘(iii) the availability of assistance in filing such
petitions;
‘‘(B) notify the Governor of each State in which one
or more firms in the industry described in subparagraph
(A) are located of the Commission’s determination and the
identity of the firms; and
‘‘(C) upon request, provide any assistance that is necessary to file a petition under section 221;
‘‘(2) the Secretary of Commerce shall—
‘‘(A) notify the representatives of the domestic industry
affected by the determination and any firms publicly identified by name during the course of the proceeding relating
to the determination of—
‘‘(i) the benefits available under chapter 3;
‘‘(ii) the manner in which to file a petition and
apply for such benefits; and
‘‘(iii) the availability of assistance in filing such
petitions; and
‘‘(B) upon request, provide any assistance that is necessary to file a petition under section 251; and
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‘‘(3) in the case of an affirmative determination based upon
imports of an agricultural commodity, the Secretary of Agriculture shall—
‘‘(A) notify representatives of the domestic industry
affected by the determination and any agricultural commodity producers publicly identified by name during the
course of the proceeding relating to the determination of—
‘‘(i) the benefits available under chapter 6;
‘‘(ii) the manner in which to file a petition and
apply for such benefits; and
‘‘(iii) the availability of assistance in filing such
petitions; and
‘‘(B) upon request, provide any assistance that is necessary to file a petition under section 292.
‘‘(g) REPRESENTATIVES OF THE DOMESTIC INDUSTRY.—For purposes of subsection (f), the term ‘representatives of the domestic
industry’ means the persons that petitioned for relief in connection
with—
‘‘(1) a proceeding under section 202 or 421 of this Act;
‘‘(2) a proceeding under section 702(b) or 732(b) of the
Tariff Act of 1930 (19 U.S.C. 1671d(b) and 1673d(b)); or
‘‘(3) any safeguard investigation described in subsection
(d)(2) or (d)(3).’’.
(b) CLERICAL AMENDMENT.—The table of contents of the Trade
Act of 1974 is amended by striking the item relating to section
224 and inserting the following:
‘‘Sec. 224. Study and notifications regarding certain affirmative determinations; industry notification of assistance.’’.
SEC. 1812. NOTIFICATION TO SECRETARY OF COMMERCE.
Section 225 of the Trade Act of 1974 (19 U.S.C. 2275) is
amended by adding at the end the following:
‘‘(c) Upon issuing a certification under section 223, the Secretary
shall notify the Secretary of Commerce of the identity of each
firm covered by the certification.’’.
Subpart C—Program Benefits
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SEC. 1821. QUALIFYING REQUIREMENTS FOR WORKERS.
(a) IN GENERAL.—Section 231(a)(5)(A)(ii) of the Trade Act of
1974 (19 U.S.C. 2291 (a)(5)(A)(ii)) is amended—
(1) by striking subclauses (I) and (II) and inserting the
following:
‘‘(I) in the case of a worker whose most recent
total separation from adversely affected employment
that meets the requirements of paragraphs (1) and
(2) occurs after the date on which the Secretary issues
a certification covering the worker, the last day of
the 26th week after such total separation,
‘‘(II) in the case of a worker whose most recent
total separation from adversely affected employment
that meets the requirements of paragraphs (1) and
(2) occurs before the date on which the Secretary issues
a certification covering the worker, the last day of
the 26th week after the date of such certification,’’;
(2) in subclause (III)—
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(A) by striking ‘‘later of the dates specified in subclause
(I) or (II)’’ and inserting ‘‘date specified in subclause (I)
or (II), as the case may be’’; and
(B) by striking ‘‘or’’ at the end;
(3) by redesignating subclause (IV) as subclause (V); and
(4) by inserting after subclause (III) the following:
‘‘(IV) in the case of a worker who fails to enroll
by the date required by subclause (I), (II), or (III),
as the case may be, due to the failure to provide
the worker with timely information regarding the date
specified in such subclause, the last day of a period
determined by the Secretary, or’’.
(b) WAIVERS OF TRAINING REQUIREMENTS.—Section 231(c) of
the Trade Act of 1974 (19 U.S.C. 2291(c)) is amended—
(1) in paragraph (1)(B)—
(A) by striking ‘‘The worker possesses’’ and inserting
the following:
‘‘(i) IN GENERAL.—The worker possesses’’; and
(B) by adding at the end the following:
‘‘(ii) MARKETABLE SKILLS DEFINED.—For purposes
of clause (i), the term ‘marketable skills’ may include
the possession of a postgraduate degree from an
institution of higher education (as defined in section
102 of the Higher Education Act of 1965 (20 U.S.C.
1002)) or an equivalent institution, or the possession
of an equivalent postgraduate certification in a specialized field.’’;
(2) in paragraph (2)(A), by striking ‘‘A waiver’’ and inserting
‘‘Except as provided in paragraph (3)(B), a waiver’’; and
(3) in paragraph (3)—
(A) in subparagraph (A), by striking ‘‘Pursuant to an
agreement under section 239, the Secretary may authorize
a’’ and inserting ‘‘An agreement under section 239 shall
authorize a’’;
(B) by redesignating subparagraph (B) as subparagraph (C); and
(C) by inserting after subparagraph (A) the following:
‘‘(B) REVIEW OF WAIVERS.—An agreement under section
239 shall require a cooperating State to review each waiver
issued by the State under subparagraph (A), (B), (D), (E),
or (F) of paragraph (1)—
‘‘(i) 3 months after the date on which the State
issues the waiver; and
‘‘(ii) on a monthly basis thereafter.’’.
(c) CONFORMING AMENDMENTS.—
(1) Section 231 of the Trade Act of 1974 (19 U.S.C. 2291),
as amended, is further amended—
(A) in subsection (a), in the matter preceding paragraph
(1), by striking ‘‘more than 60 days’’ and all that follows
through ‘‘section 221’’ and inserting ‘‘on or after the date
of such certification’’; and
(B) in subsection (b)—
(i) by striking paragraph (2); and
(ii) in paragraph (1)—
(I) by striking ‘‘(1)’’;
(II) by redesignating subparagraphs (A) and
(B) as paragraphs (1) and (2), respectively;
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(III) by redesignating clauses (i) and (ii) as
subparagraphs (A) and (B), respectively; and
(IV) by redesignating subclauses (I) and (II)
as clauses (i) and (ii), respectively.
(2) Section 233 of the Trade Act of 1974 (19 U.S.C. 2293)
is amended—
(A) by striking subsection (b); and
(B) by redesignating subsections (c) through (g) as subsections (b) through (f), respectively.
SEC. 1822. WEEKLY AMOUNTS.
Section 232 of the Trade Act of 1974 (19 U.S.C. 2292) is
amended—
(1) in subsection (a)—
(A) by striking ‘‘subsections (b) and (c)’’ and inserting
‘‘subsections (b), (c), and (d)’’;
(B) by striking ‘‘total unemployment’’ the first place
it appears and inserting ‘‘unemployment’’; and
(C) in paragraph (2), by inserting before the period
the following: ‘‘, except that in the case of an adversely
affected worker who is participating in training under this
chapter, such income shall not include earnings from work
for such week that are equal to or less than the most
recent weekly benefit amount of the unemployment insurance payable to the worker for a week of total unemployment preceding the worker’s first exhaustion of unemployment insurance (as determined for purposes of section
231(a)(3)(B))’’; and
(2) by adding at the end the following:
‘‘(d) ELECTION OF TRADE READJUSTMENT ALLOWANCE OR
UNEMPLOYMENT INSURANCE.—Notwithstanding section 231(a)(3)(B),
an adversely affected worker may elect to receive a trade readjustment allowance instead of unemployment insurance during any
week with respect to which the worker—
‘‘(1) is entitled to receive unemployment insurance as a
result of the establishment by the worker of a new benefit
year under State law, based in whole or in part upon parttime or short-term employment in which the worker engaged
after the worker’s most recent total separation from adversely
affected employment; and
‘‘(2) is otherwise entitled to a trade readjustment allowance.’’.
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SEC. 1823. LIMITATIONS ON TRADE READJUSTMENT ALLOWANCES;
ALLOWANCES FOR EXTENDED TRAINING AND BREAKS
IN TRAINING.
Section 233(a) of the Trade Act of 1974 (19 U.S.C. 2293(a))
is amended—
(1) in paragraph (2), by inserting ‘‘under paragraph (1)’’
after ‘‘trade readjustment allowance’’; and
(2) in paragraph (3)—
(A) in the matter preceding subparagraph (A)—
(i) by striking ‘‘training approved for him’’ and
inserting ‘‘a training program approved for the worker’’;
(ii) by striking ‘‘52 additional weeks’’ and inserting
‘‘78 additional weeks’’; and
(iii) by striking ‘‘52-week’’ and inserting ‘‘91-week’’;
and
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(B) in the matter following subparagraph (B), by
striking ‘‘52-week’’ and inserting ‘‘91-week’’.
SEC. 1824. SPECIAL RULES FOR CALCULATION OF ELIGIBILITY
PERIOD.
Waiver authority.
Section 233 of the Trade Act of 1974 (19 U.S.C. 2293), as
amended, is further amended by adding at the end the following:
‘‘(g) SPECIAL RULE FOR CALCULATING SEPARATION.—Notwithstanding any other provision of this chapter, any period during
which a judicial or administrative appeal is pending with respect
to the denial by the Secretary of a petition under section 223
shall not be counted for purposes of calculating the period of separation under subsection (a)(2).
‘‘(h) SPECIAL RULE FOR JUSTIFIABLE CAUSE.—If the Secretary
determines that there is justifiable cause, the Secretary may extend
the period during which trade readjustment allowances are payable
to an adversely affected worker under paragraphs (2) and (3) of
subsection (a) (but not the maximum amounts of such allowances
that are payable under this section).
‘‘(i) SPECIAL RULE WITH RESPECT TO MILITARY SERVICE.—
‘‘(1) IN GENERAL.—Notwithstanding any other provision of
this chapter, the Secretary may waive any requirement of this
chapter that the Secretary determines is necessary to ensure
that an adversely affected worker who is a member of a reserve
component of the Armed Forces and serves a period of duty
described in paragraph (2) is eligible to receive a trade readjustment allowance, training, and other benefits under this chapter
in the same manner and to the same extent as if the worker
had not served the period of duty.
‘‘(2) PERIOD OF DUTY DESCRIBED.—An adversely affected
worker serves a period of duty described in this paragraph
if, before completing training under section 236, the worker—
‘‘(A) serves on active duty for a period of more than
30 days under a call or order to active duty of more than
30 days; or
‘‘(B) in the case of a member of the Army National
Guard of the United States or Air National Guard of the
United States, performs full-time National Guard duty
under section 502(f) of title 32, United States Code, for
30 consecutive days or more when authorized by the President or the Secretary of Defense for the purpose of
responding to a national emergency declared by the President and supported by Federal funds.’’.
SEC. 1825. APPLICATION OF STATE LAWS AND REGULATIONS ON GOOD
CAUSE FOR WAIVER OF TIME LIMITS OR LATE FILING
OF CLAIMS.
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Applicability.
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Section 234 of the Trade Act of 1974 (19 U.S.C. 2294) is
amended—
(1) by striking ‘‘Except where inconsistent’’ and inserting
‘‘(a) IN GENERAL.—Except where inconsistent’’; and
(2) by adding at the end the following:
‘‘(b) SPECIAL RULE WITH RESPECT TO STATE LAWS AND REGULATIONS ON GOOD CAUSE FOR WAIVER OF TIME LIMITS OR LATE FILING
OF CLAIMS.—Any law, regulation, policy, or practice of a cooperating
State that allows for a waiver for good cause of any time limitation
relating to the administration of the State unemployment insurance
law shall, in the administration of the program under this chapter
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by the State, apply to any time limitation with respect to an
application for a trade readjustment allowance or enrollment in
training under this chapter.’’.
SEC. 1826. EMPLOYMENT AND CASE MANAGEMENT SERVICES.
(a) IN GENERAL.—Section 235 of the Trade Act of 1974 (19
U.S.C. 2295) is amended to read as follows:
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‘‘SEC. 235. EMPLOYMENT AND CASE MANAGEMENT SERVICES.
Contracts.
‘‘The Secretary shall make available, directly or through agreements with States under section 239, to adversely affected workers
and adversely affected incumbent workers covered by a certification
under subchapter A of this chapter the following employment and
case management services:
‘‘(1) Comprehensive and specialized assessment of skill
levels and service needs, including through—
‘‘(A) diagnostic testing and use of other assessment
tools; and
‘‘(B) in-depth interviewing and evaluation to identify
employment barriers and appropriate employment goals.
‘‘(2) Development of an individual employment plan to identify employment goals and objectives, and appropriate training
to achieve those goals and objectives.
‘‘(3) Information on training available in local and regional
areas, information on individual counseling to determine which
training is suitable training, and information on how to apply
for such training.
‘‘(4) Information on how to apply for financial aid, including
referring workers to educational opportunity centers described
in section 402F of the Higher Education Act of 1965 (20 U.S.C.
1070a–16), where applicable, and notifying workers that the
workers may request financial aid administrators at institutions of higher education (as defined in section 102 of such
Act (20 U.S.C. 1002)) to use the administrators’ discretion under
section 479A of such Act (20 U.S.C. 1087tt) to use current
year income data, rather than preceding year income data,
for determining the amount of need of the workers for Federal
financial assistance under title IV of such Act (20 U.S.C. 1070
et seq.).
‘‘(5) Short-term prevocational services, including development of learning skills, communications skills, interviewing
skills, punctuality, personal maintenance skills, and professional conduct to prepare individuals for employment or
training.
‘‘(6) Individual career counseling, including job search and
placement counseling, during the period in which the individual
is receiving a trade adjustment allowance or training under
this chapter, and after receiving such training for purposes
of job placement.
‘‘(7) Provision of employment statistics information,
including the provision of accurate information relating to local,
regional, and national labor market areas, including—
‘‘(A) job vacancy listings in such labor market areas;
‘‘(B) information on jobs skills necessary to obtain jobs
identified in job vacancy listings described in subparagraph
(A);
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‘‘(C) information relating to local occupations that are
in demand and earnings potential of such occupations;
and
‘‘(D) skills requirements for local occupations described
in subparagraph (C).
‘‘(8) Information relating to the availability of supportive
services, including services relating to child care, transportation, dependent care, housing assistance, and need-related
payments that are necessary to enable an individual to participate in training.’’.
(b) CLERICAL AMENDMENT.—The table of contents of the Trade
Act of 1974 is amended by striking the item relating to section
235 and inserting the following:
‘‘235. Employment and case management services.’’.
SEC. 1827. ADMINISTRATIVE EXPENSES AND EMPLOYMENT AND CASE
MANAGEMENT SERVICES.
(a) IN GENERAL.—Part II of subchapter B of chapter 2 of title
II of the Trade Act of 1974 (19 U.S.C. 2295 et seq.) is amended
by inserting after section 235 the following:
19 USC 2295a.
‘‘SEC. 235A. FUNDING FOR ADMINISTRATIVE EXPENSES AND EMPLOYMENT AND CASE MANAGEMENT SERVICES.
‘‘(a) FUNDING FOR ADMINISTRATIVE EXPENSES AND EMPLOYMENT
CASE MANAGEMENT SERVICES.—
‘‘(1) IN GENERAL.—In addition to any funds made available
to a State to carry out section 236 for a fiscal year, the State
shall receive for the fiscal year a payment in an amount that
is equal to 15 percent of the amount of such funds.
‘‘(2) USE OF FUNDS.—A State that receives a payment under
paragraph (1) shall—
‘‘(A) use not more than 2⁄3 of such payment for the
administration of the trade adjustment assistance for
workers program under this chapter, including for—
‘‘(i) processing waivers of training requirements
under section 231;
‘‘(ii) collecting, validating, and reporting data
required under this chapter; and
‘‘(iii) providing reemployment trade adjustment
assistance under section 246; and
‘‘(B) use not less than 1⁄3 of such payment for employment and case management services under section 235.
‘‘(b) ADDITIONAL FUNDING FOR EMPLOYMENT AND CASE MANAGEMENT SERVICES.—
‘‘(1) IN GENERAL.—In addition to any funds made available
to a State to carry out section 236 and the payment under
subsection (a)(1) for a fiscal year, the Secretary shall provide
to the State for the fiscal year a payment in the amount
of $350,000.
‘‘(2) USE OF FUNDS.—A State that receives a payment under
paragraph (1) shall use such payment for the purpose of providing employment and case management services under section 235.
‘‘(3) VOLUNTARY RETURN OF FUNDS.—A State that receives
a payment under paragraph (1) may decline or otherwise return
such payment to the Secretary.’’.
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(b) CLERICAL AMENDMENT.—The table of contents of the Trade
Act of 1974 is amended by inserting after the item relating to
section 235 the following:
‘‘Sec. 235A. Funding for administrative expenses and employment and case management services.’’.
(c) EFFECTIVE DATE.—The amendments made by this section
shall take effect on the date of the enactment of this Act.
19 USC 2295a
note.
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SEC. 1828. TRAINING FUNDING.
(a) IN GENERAL.—Section 236(a)(2) of the Trade Act of 1974
(19 U.S.C. 2296(a)(2)) is amended to read as follows:
‘‘(2)(A) The total amount of payments that may be made under
paragraph (1) shall not exceed—
‘‘(i) for each of the fiscal years 2009 and 2010, $575,000,000;
and
‘‘(ii) for the period beginning October 1, 2010, and ending
December 31, 2010, $143,750,000.
‘‘(B)(i) The Secretary shall, as soon as practicable after the
beginning of each fiscal year, make an initial distribution of the
funds made available to carry out this section, in accordance with
the requirements of subparagraph (C).
‘‘(ii) The Secretary shall ensure that not less than 90 percent
of the funds made available to carry out this section for a fiscal
year are distributed to the States by not later than July 15 of
that fiscal year.
‘‘(C)(i) In making the initial distribution of funds pursuant
to subparagraph (B)(i) for a fiscal year, the Secretary shall hold
in reserve 35 percent of the funds made available to carry out
this section for that fiscal year for additional distributions during
the remainder of the fiscal year.
‘‘(ii) Subject to clause (iii), in determining how to apportion
the initial distribution of funds pursuant to subparagraph (B)(i)
in a fiscal year, the Secretary shall take into account, with respect
to each State—
‘‘(I) the trend in the number of workers covered by certifications of eligibility under this chapter during the most recent
4 consecutive calendar quarters for which data are available;
‘‘(II) the trend in the number of workers participating in
training under this section during the most recent 4 consecutive
calendar quarters for which data are available;
‘‘(III) the number of workers estimated to be participating
in training under this section during the fiscal year;
‘‘(IV) the amount of funding estimated to be necessary
to provide training approved under this section to such workers
during the fiscal year; and
‘‘(V) such other factors as the Secretary considers appropriate relating to the provision of training under this section.
‘‘(iii) In no case may the amount of the initial distribution
to a State pursuant to subparagraph (B)(i) in a fiscal year be
less than 25 percent of the initial distribution to the State in
the preceding fiscal year.
‘‘(D) The Secretary shall establish procedures for the distribution of the funds that remain available for the fiscal year after
the initial distribution required under subparagraph (B)(i). Such
procedures may include the distribution of funds pursuant to
requests submitted by States in need of such funds.
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Deadline.
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‘‘(E) If, during a fiscal year, the Secretary estimates that the
amount of funds necessary to pay the costs of training approved
under this section will exceed the dollar amount limitation specified
in subparagraph (A), the Secretary shall decide how the amount
of funds made available to carry out this section that have not
been distributed at the time of the estimate will be apportioned
among the States for the remainder of the fiscal year.’’.
(b) DETERMINATIONS REGARDING TRAINING.—Section 236(a)(9)
of the Trade Act of 1974 (19 U.S.C. 2296(a)(9)) is amended—
(1) by striking ‘‘The Secretary’’ and inserting ‘‘(A) Subject
to subparagraph (B), the Secretary’’; and
(2) by adding at the end the following:
‘‘(B)(i) In determining under paragraph (1)(E) whether a worker
is qualified to undertake and complete training, the Secretary may
approve training for a period longer than the worker’s period of
eligibility for trade readjustment allowances under part I if the
worker demonstrates a financial ability to complete the training
after the expiration of the worker’s period of eligibility for such
trade readjustment allowances.
‘‘(ii) In determining the reasonable cost of training under paragraph (1)(F) with respect to a worker, the Secretary may consider
whether other public or private funds are reasonably available
to the worker, except that the Secretary may not require a worker
to obtain such funds as a condition of approval of training under
paragraph (1).’’.
(c) REGULATIONS.—Section 236 of the Trade Act of 1974 (19
U.S.C. 2296) is amended by adding at the end the following:
‘‘(g) REGULATIONS WITH RESPECT TO APPORTIONMENT OF
TRAINING FUNDS TO STATES.—
‘‘(1) IN GENERAL.—Not later than 1 year after the date
of the enactment of this subsection, the Secretary shall issue
such regulations as may be necessary to carry out the provisions
of subsection (a)(2).
‘‘(2) CONSULTATIONS.—The Secretary shall consult with the
Committee on Finance of the Senate and the Committee on
Ways and Means of the House of Representatives not less
than 90 days before issuing any regulation pursuant to paragraph (1).’’.
(d) EFFECTIVE DATE.—This section and the amendments made
by this section shall take effect upon the expiration of the 90day period beginning on the date of the enactment of this Act,
except that—
(1) subparagraph (A) of section 236(a)(2) of the Trade Act
of 1974, as amended by subsection (a) of this section, shall
take effect on the date of the enactment of this Act; and
(2) subparagraphs (B), (C), and (D) of such section 236(a)(2)
shall take effect on October 1, 2009.
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SEC. 1829. PREREQUISITE EDUCATION; APPROVED TRAINING PROGRAMS.
(a) IN GENERAL.—Section 236(a)(5) of the Trade Act of 1974
(19 U.S.C. 2296(a)(5)) is amended—
(1) in subparagraph (A)—
(A) by striking ‘‘and’’ at the end of clause (i);
(B) by adding ‘‘and’’ at the end of clause (ii); and
(C) by inserting after clause (ii) the following:
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‘‘(iii) apprenticeship programs registered under the Act
of August 16, 1937 (commonly known as the ‘National
Apprenticeship Act’; 50 Stat. 664, chapter 663; 29 U.S.C.
50 et seq.),’’;
(2) by redesignating subparagraphs (E) and (F) as subparagraphs (F) and (G), respectively;
(3) by inserting after subparagraph (D) the following:
‘‘(E) any program of prerequisite education or coursework
required to enroll in training that may be approved under
this section,’’;
(4) in subparagraph (F)(ii), as redesignated by paragraph
(2), by striking ‘‘and’’ at the end;
(5) in subparagraph (G), as redesignated by paragraph
(2), by striking the period at the end and inserting ‘‘, and’’;
and
(6) by adding at the end the following:
‘‘(H) any training program or coursework at an accredited
institution of higher education (described in section 102 of
the Higher Education Act of 1965 (20 U.S.C. 1002)), including
a training program or coursework for the purpose of—
‘‘(i) obtaining a degree or certification; or
‘‘(ii) completing a degree or certification that the worker
had previously begun at an accredited institution of higher
education.
The Secretary may not limit approval of a training program under
paragraph (1) to a program provided pursuant to title I of the
Workforce Investment Act of 1998 (29 U.S.C. 2801 et seq.).’’.
(b) CONFORMING AMENDMENTS.—Section 233 of the Trade Act
of 1974 (19 U.S.C. 2293) is amended—
(1) in subsection (a)(2), by inserting ‘‘prerequisite education
or’’ after ‘‘requires a program of’’; and
(2) in subsection (f) (as redesignated by section 1821(c)
of this subtitle), by inserting ‘‘prerequisite education or’’ after
‘‘includes a program of’’.
(c) TECHNICAL CORRECTIONS.—Section 236 of the Trade Act
of 1974 (19 U.S.C. 2296) is amended—
(1) in subsection (a)—
(A) in paragraph (1), in the flush text, by striking
‘‘his behalf’’ and inserting ‘‘the worker’s behalf’’; and
(B) in paragraph (3), by striking ‘‘this paragraph (1)’’
and inserting ‘‘paragraph (1)’’; and
(2) in subsection (b)(2), by striking ‘‘, and’’ and inserting
a period.
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SEC. 1830. PRE-LAYOFF AND PART-TIME TRAINING.
(a) PRE-LAYOFF TRAINING.—
(1) IN GENERAL.—Section 236(a) of the Trade Act of 1974
(19 U.S.C. 2296(a)) is amended—
(A) in paragraph (1), by inserting after ‘‘determines’’
the following: ‘‘, with respect to an adversely affected
worker or an adversely affected incumbent worker,’’;
(B) in paragraph (4)—
(i) in subparagraphs (A) and (B), by inserting ‘‘or
an adversely affected incumbent worker’’ after ‘‘an
adversely affected worker’’ each place it appears; and
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(ii) in subparagraph (C), by inserting ‘‘or adversely
affected incumbent worker’’ after ‘‘adversely affected
worker’’ each place it appears;
(C) in paragraph (5), in the matter preceding subparagraph (A), by striking ‘‘The training programs’’ and
inserting ‘‘Except as provided in paragraph (10), the
training programs’’;
(D) in paragraph (6)(B), by inserting ‘‘or adversely
affected incumbent worker’’ after ‘‘adversely affected
worker’’;
(E) in paragraph (7)(B), by inserting ‘‘or adversely
affected incumbent worker’’ after ‘‘adversely affected
worker’’; and
(F) by inserting after paragraph (9) the following:
‘‘(10) In the case of an adversely affected incumbent worker,
the Secretary may not approve—
‘‘(A) on-the-job training under paragraph (5)(A)(i); or
‘‘(B) customized training under paragraph (5)(A)(ii), unless
such training is for a position other than the worker’s adversely
affected employment.
‘‘(11) If the Secretary determines that an adversely affected
incumbent worker for whom the Secretary approved training under
this section is no longer threatened with a total or partial separation, the Secretary shall terminate the approval of such training.’’.
(2) DEFINITIONS.—Section 247 of the Trade Act of 1974
(19 U.S.C. 2319), as amended, is further amended by adding
at the end the following:
‘‘(19) The term ‘adversely affected incumbent worker’ means
a worker who—
‘‘(A) is a member of a group of workers who have
been certified as eligible to apply for adjustment assistance
under subchapter A;
‘‘(B) has not been totally or partially separated from
adversely affected employment; and
‘‘(C) the Secretary determines, on an individual basis,
is threatened with total or partial separation.’’.
(b) PART-TIME TRAINING.—Section 236 of the Trade Act of 1974
(19 U.S.C. 2296), as amended, is further amended by adding at
the end the following:
‘‘(h) PART-TIME TRAINING.—
‘‘(1) IN GENERAL.—The Secretary may approve full-time
or part-time training for a worker under subsection (a).
‘‘(2) LIMITATION.—Notwithstanding paragraph (1), a worker
participating in part-time training approved under subsection
(a) may not receive a trade readjustment allowance under section 231.’’.
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SEC. 1831. ON-THE-JOB TRAINING.
(a) IN GENERAL.—Section 236(c) of the Trade Act of 1974 (19
U.S.C. 2296(c)) is amended—
(1) by redesignating paragraphs (1) through (10) as subparagraphs (A) through (J) and moving such subparagraphs
2 ems to the right;
(2) by striking ‘‘(c) The Secretary shall’’ and all that follows
through ‘‘such costs,’’ and inserting the following:
‘‘(c) ON-THE-JOB TRAINING REQUIREMENTS.—
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‘‘(1) IN GENERAL.—The Secretary may approve on-the-job
training for any adversely affected worker if—
‘‘(A) the worker meets the requirements for training
to be approved under subsection (a)(1);
‘‘(B) the Secretary determines that on-the-job
training—
‘‘(i) can reasonably be expected to lead to suitable
employment with the employer offering the on-thejob training;
‘‘(ii) is compatible with the skills of the worker;
‘‘(iii) includes a curriculum through which the
worker will gain the knowledge or skills to become
proficient in the job for which the worker is being
trained; and
‘‘(iv) can be measured by benchmarks that indicate
that the worker is gaining such knowledge or skills;
and
‘‘(C) the State determines that the on-the-job training
program meets the requirements of clauses (iii) and (iv)
of subparagraph (B).
‘‘(2) MONTHLY PAYMENTS.—The Secretary shall pay the
costs of on-the-job training approved under paragraph (1) in
monthly installments.
‘‘(3) CONTRACTS FOR ON-THE-JOB TRAINING.—
‘‘(A) IN GENERAL.—The Secretary shall ensure, in
entering into a contract with an employer to provide onthe-job training to a worker under this subsection, that
the skill requirements of the job for which the worker
is being trained, the academic and occupational skill level
of the worker, and the work experience of the worker
are taken into consideration.
‘‘(B) TERM OF CONTRACT.—Training under any such
contract shall be limited to the period of time required
for the worker receiving on-the-job training to become proficient in the job for which the worker is being trained,
but may not exceed 104 weeks in any case.
‘‘(4) EXCLUSION OF CERTAIN EMPLOYERS.—The Secretary
shall not enter into a contract for on-the-job training with
an employer that exhibits a pattern of failing to provide workers
receiving on-the-job training from the employer with—
‘‘(A) continued, long-term employment as regular
employees; and
‘‘(B) wages, benefits, and working conditions that are
equivalent to the wages, benefits, and working conditions
provided to regular employees who have worked a similar
period of time and are doing the same type of work as
workers receiving on-the-job training from the employer.
‘‘(5) LABOR STANDARDS.—The Secretary may pay the costs
of on-the-job training,’’; and
(3) in paragraph (5), as redesignated—
(A) in subparagraph (I), as redesignated by paragraph
(1) of this section, by striking ‘‘paragraphs (1), (2), (3),
(4), (5), and (6)’’ and inserting ‘‘subparagraphs (A), (B),
(C), (D), (E), and (F)’’; and
(B) in subparagraph (J), as redesignated by paragraph
(1) of this section, by striking ‘‘paragraph (8)’’ and inserting
‘‘subparagraph (H)’’.
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(b) REPEAL OF PREFERENCE FOR TRAINING ON THE JOB.—Section
236(a)(1) of the Trade Act of 1974 (19 U.S.C. 2296(a)(1)) is amended
by striking the last sentence.
SEC. 1832. ELIGIBILITY FOR UNEMPLOYMENT INSURANCE AND PROGRAM BENEFITS WHILE IN TRAINING.
Deadline.
Section 236(d) of the Trade Act of 1974 (19 U.S.C. 2296(d))
is amended to read as follows:
‘‘(d) ELIGIBILITY.—An adversely affected worker may not be
determined to be ineligible or disqualified for unemployment insurance or program benefits under this subchapter—
‘‘(1) because the worker—
‘‘(A) is enrolled in training approved under subsection
(a);
‘‘(B) left work—
‘‘(i) that was not suitable employment in order
to enroll in such training; or
‘‘(ii) that the worker engaged in on a temporary
basis during a break in such training or a delay in
the commencement of such training; or
‘‘(C) left on-the-job training not later than 30 days
after commencing such training because the training did
not meet the requirements of subsection (c)(1)(B); or
‘‘(2) because of the application to any such week in training
of the provisions of State law or Federal unemployment insurance law relating to availability for work, active search for
work, or refusal to accept work.’’.
SEC. 1833. JOB SEARCH AND RELOCATION ALLOWANCES.
(a) JOB SEARCH ALLOWANCES.—Section 237 of the Trade Act
of 1974 (19 U.S.C. 2297) is amended—
(1) in subsection (a)(2)(C)(ii), by striking ‘‘, unless the
worker received a waiver under section 231(c)’’; and
(2) in subsection (b)—
(A) in paragraph (1), by striking ‘‘90 percent of the
cost of’’ and inserting ‘‘all’’; and
(B) in paragraph (2), by striking ‘‘$1,250’’ and inserting
‘‘$1,500’’.
(b) RELOCATION ALLOWANCES.—Section 238 of the Trade Act
of 1974 (19 U.S.C. 2298) is amended—
(1) in subsection (a)(2)(E)(ii), by striking ‘‘, unless the
worker received a waiver under section 231(c)’’; and
(2) in subsection (b)—
(A) in paragraph (1), by striking ‘‘90 percent of the’’
and inserting ‘‘all’’; and
(B) in paragraph (2), by striking ‘‘$1,250’’ and inserting
‘‘$1,500’’.
Subpart D—Reemployment Trade Adjustment
Assistance Program
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SEC. 1841. REEMPLOYMENT TRADE ADJUSTMENT ASSISTANCE PROGRAM.
(a) IN GENERAL.—Section 246 of the Trade Act of 1974 (19
U.S.C. 2318) is amended—
(1) by amending the heading to read as follows:
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‘‘SEC. 246. REEMPLOYMENT TRADE ADJUSTMENT ASSISTANCE PROGRAM.’’;
(2) in subsection (a)—
(A) in paragraph (1)—
(i) by striking ‘‘Not later than’’ and all that follows
through ‘‘2002, the Secretary’’ and inserting ‘‘The Secretary’’; and
(ii) by striking ‘‘an alternative trade adjustment
assistance program for older workers’’ and inserting
‘‘a reemployment trade adjustment assistance program’’;
(B) in paragraph (2)—
(i) in subparagraph (A)—
(I) in the matter preceding clause (i), by
striking ‘‘for a period not to exceed 2 years’’ and
inserting ‘‘for the eligibility period under subparagraph (A) or (B) of paragraph (4) (as the case
may be)’’; and
(II) by striking clauses (i) and (ii) and inserting
the following:
‘‘(i) the wages received by the worker at the time
of separation; and
‘‘(ii) the wages received by the worker from
reemployment.’’;
(ii) in subparagraph (B)—
(I) by striking ‘‘for a period not to exceed 2
years’’ and inserting ‘‘for the eligibility period
under subparagraph (A) or (B) of paragraph (4)
(as the case may be)’’; and
(II) by striking ‘‘, as added by section 201
of the Trade Act of 2002’’; and
(iii) by adding at the end the following:
‘‘(C) TRAINING AND OTHER SERVICES.—A worker
described in paragraph (3)(B) participating in the program
established under paragraph (1) is eligible to receive
training approved under section 236 and employment and
case management services under section 235.’’; and
(C) by striking paragraphs (3) through (5) and inserting
the following:
‘‘(3) ELIGIBILITY.—
‘‘(A) IN GENERAL.—A group of workers certified under
subchapter A as eligible for adjustment assistance under
subchapter A is eligible for benefits described in paragraph
(2) under the program established under paragraph (1).
‘‘(B) INDIVIDUAL ELIGIBILITY.—A worker in a group of
workers described in subparagraph (A) may elect to receive
benefits described in paragraph (2) under the program
established under paragraph (1) if the worker—
‘‘(i) is at least 50 years of age;
‘‘(ii) earns not more than $55,000 each year in
wages from reemployment;
‘‘(iii)(I) is employed on a full-time basis as defined
by the law of the State in which the worker is employed
and is not enrolled in a training program approved
under section 236; or
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Effective date.
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‘‘(II) is employed at least 20 hours per week and
is enrolled in a training program approved under section 236; and
‘‘(iv) is not employed at the firm from which the
worker was separated.
‘‘(4) ELIGIBILITY PERIOD FOR PAYMENTS.—
‘‘(A) WORKER WHO HAS NOT RECEIVED TRADE READJUSTMENT ALLOWANCE.—In the case of a worker described in
paragraph (3)(B) who has not received a trade readjustment
allowance under part I of subchapter B pursuant to the
certification described in paragraph (3)(A), the worker may
receive benefits described in paragraph (2) for a period
not to exceed 2 years beginning on the earlier of—
‘‘(i) the date on which the worker exhausts all
rights to unemployment insurance based on the separation of the worker from the adversely affected employment that is the basis of the certification; or
‘‘(ii) the date on which the worker obtains
reemployment described in paragraph (3)(B).
‘‘(B) WORKER WHO HAS RECEIVED TRADE READJUSTMENT
ALLOWANCE.—In the case of a worker described in paragraph (3)(B) who has received a trade readjustment allowance under part I of subchapter B pursuant to the certification described in paragraph (3)(A), the worker may
receive benefits described in paragraph (2) for a period
of 104 weeks beginning on the date on which the worker
obtains reemployment described in paragraph (3)(B),
reduced by the total number of weeks for which the worker
received such trade readjustment allowance.
‘‘(5) TOTAL AMOUNT OF PAYMENTS.—
‘‘(A) IN GENERAL.—The payments described in paragraph (2)(A) made to a worker may not exceed—
‘‘(i) $12,000 per worker during the eligibility period
under paragraph (4)(A); or
‘‘(ii) the amount described in subparagraph (B)
per worker during the eligibility period under paragraph (4)(B).
‘‘(B) AMOUNT DESCRIBED.—The amount described in
this subparagraph is the amount equal to the product
of—
‘‘(i) $12,000, and
‘‘(ii) the ratio of—
‘‘(I) the total number of weeks in the eligibility
period under paragraph (4)(B) with respect to the
worker, to
‘‘(II) 104 weeks.
‘‘(6) CALCULATION OF AMOUNT OF PAYMENTS FOR CERTAIN
WORKERS.—
‘‘(A) IN GENERAL.—In the case of a worker described
in paragraph (3)(B)(iii)(II), paragraph (2)(A) shall be
applied by substituting the percentage described in
subparagraph (B) for ‘50 percent’.
‘‘(B)
PERCENTAGE
DESCRIBED.—The
percentage
described in this subparagraph is the percentage—
‘‘(i) equal to 1⁄2 of the ratio of—
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‘‘(I) the number of weekly hours of employment
of the worker referred to in paragraph
(3)(B)(iii)(II), to
‘‘(II) the number of weekly hours of employment of the worker at the time of separation,
but
‘‘(ii) in no case more than 50 percent.
‘‘(7) LIMITATION ON OTHER BENEFITS.—A worker described
in paragraph (3)(B) may not receive a trade readjustment allowance under part I of subchapter B pursuant to the certification
described in paragraph (3)(A) during any week for which the
worker receives a payment described in paragraph (2)(A).’’;
and
(3) in subsection (b)(2), by striking ‘‘subsection (a)(3)(B)’’
and inserting ‘‘subsection (a)(3)’’.
(b) EXTENSION OF PROGRAM.—Section 246(b)(1) of the Trade
Act of 1974 (19 U.S.C. 2318(b)(1)) is amended by striking ‘‘the
date that is 5 years’’ and all that follows through the end period
and inserting ‘‘December 31, 2010.’’.
(c) CLERICAL AMENDMENT.—The table of contents of the Trade
Act of 1974 is amended by striking the item relating to section
246 and inserting the following:
‘‘Sec. 246. Reemployment trade adjustment assistance program.’’.
Subpart E—Other Matters
SEC. 1851. OFFICE OF TRADE ADJUSTMENT ASSISTANCE.
(a) IN GENERAL.—Subchapter C of chapter 2 of title II of the
Trade Act of 1974 (19 U.S.C. 2311 et seq.) is amended by adding
at the end the following:
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‘‘SEC. 249A. OFFICE OF TRADE ADJUSTMENT ASSISTANCE.
19 USC 2322.
‘‘(a) ESTABLISHMENT.—There is established in the Department
of Labor an office to be known as the Office of Trade Adjustment
Assistance (in this section referred to as the ‘Office’).
‘‘(b) HEAD OF OFFICE.—The head of the Office shall be an
administrator, who shall report directly to the Deputy Assistant
Secretary for Employment and Training.
‘‘(c) PRINCIPAL FUNCTIONS.—The principal functions of the
administrator of the Office shall be—
‘‘(1) to oversee and implement the administration of trade
adjustment assistance program under this chapter; and
‘‘(2) to carry out functions delegated to the Secretary of
Labor under this chapter, including—
‘‘(A) making determinations under section 223;
‘‘(B) providing information under section 225 about
trade adjustment assistance to workers and assisting such
workers to prepare petitions or applications for program
benefits;
‘‘(C) providing assistance to employers of groups of
workers that have filed petitions under section 221 in
submitting information required by the Secretary relating
to the petitions;
‘‘(D) ensuring workers covered by a certification of
eligibility under subchapter A receive the employment and
case management services described in section 235;
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‘‘(E) ensuring that States fully comply with agreements
entered into under section 239;
‘‘(F) advocating for workers applying for benefits available under this chapter;
‘‘(G) establishing and overseeing a hotline that workers,
employers, and other entities may call to obtain information
regarding eligibility criteria, procedural requirements, and
benefits available under this chapter; and
‘‘(H) carrying out such other duties with respect to
this chapter as the Secretary specifies for purposes of this
section.
‘‘(d) ADMINISTRATION.—
‘‘(1) DESIGNATION.—The administrator shall designate an
employee of the Department of Labor with appropriate experience and expertise to carry out the duties described in paragraph (2).
‘‘(2) DUTIES.—The employee designated under paragraph
(1) shall—
‘‘(A) receive complaints and requests for assistance
related to the trade adjustment assistance program under
this chapter;
‘‘(B) resolve such complaints and requests for assistance, in coordination with other employees of the Office;
‘‘(C) compile basic information concerning such complaints and requests for assistance; and
‘‘(D) carry out such other duties with respect to this
chapter as the Secretary specifies for purposes of this section.’’.
(b) CLERICAL AMENDMENT.—The table of contents of the Trade
Act of 1974 is amended by inserting after the item relating to
section 249 the following:
‘‘Sec. 249A. Office of Trade Adjustment Assistance.’’.
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SEC. 1852. ACCOUNTABILITY OF STATE AGENCIES; COLLECTION AND
PUBLICATION OF PROGRAM DATA; AGREEMENTS WITH
STATES.
(a) IN GENERAL.—Section 239(a) of the Trade Act of 1974 (19
U.S.C. 2311(a)) is amended—
(1) by amending clause (2) to read as follows: ‘‘(2) in accordance with subsection (f), shall make available to adversely
affected workers and adversely affected incumbent workers covered by a certification under subchapter A the employment
and case management services described in section 235,’’; and
(2) by striking ‘‘will’’ each place it appears and inserting
‘‘shall’’.
(b) FORM AND MANNER OF DATA.—Section 239 of the Trade
Act of 1974 (19 U.S.C. 2311) is amended—
(1) by redesignating subsections (c) through (g) as subsections (d) through (h), respectively; and
(2) by inserting after subsection (b) the following:
‘‘(c) FORM AND MANNER OF DATA.—Each agreement under this
subchapter shall—
‘‘(1) provide the Secretary with the authority to collect
any data the Secretary determines necessary to meet the
requirements of this chapter; and
‘‘(2) specify the form and manner in which any such data
requested by the Secretary shall be reported.’’.
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 391
(c) STATE ACTIVITIES.—Section 239(g) of the Trade Act of 1974
(as redesignated) is amended—
(1) in paragraph (3), by striking ‘‘and’’ at the end;
(2) by amending paragraph (4) to read as follows:
‘‘(4) perform outreach to, intake of, and orientation for
adversely affected workers and adversely affected incumbent
workers covered by a certification under subchapter A with
respect to assistance and benefits available under this chapter,
and’’; and
(3) by adding at the end the following:
‘‘(5) make employment and case management services
described in section 235 available to adversely affected workers
and adversely affected incumbent workers covered by a certification under subchapter A and, if funds provided to carry
out this chapter are insufficient to make such services available,
make arrangements to make such services available through
other Federal programs.’’.
(d) REPORTING REQUIREMENT.—Section 239(h) of the Trade Act
of 1974 (as redesignated) is amended by striking ‘‘1998.’’ and
inserting ‘‘1998 (29 U.S.C. 2822(b)) and a description of the State’s
rapid response activities under section 221(a)(2)(A).’’.
(e) CONTROL MEASURES.—Section 239 of the Trade Act of 1974
(19 U.S.C. 2311), as amended, is further amended by adding at
the end the following:
‘‘(i) CONTROL MEASURES.—
‘‘(1) IN GENERAL.—The Secretary shall require each cooperating State and cooperating State agency to implement effective
control measures and to effectively oversee the operation and
administration of the trade adjustment assistance program
under this chapter, including by means of monitoring the operation of control measures to improve the accuracy and timeliness of the data being collected and reported.
‘‘(2) DEFINITION.—For purposes of paragraph (1), the term
‘control measures’ means measures that—
‘‘(A) are internal to a system used by a State to collect
data; and
‘‘(B) are designed to ensure the accuracy and
verifiability of such data.
‘‘(j) DATA REPORTING.—
‘‘(1) IN GENERAL.—Any agreement entered into under this
section shall require the cooperating State or cooperating State
agency to report to the Secretary on a quarterly basis comprehensive performance accountability data, to consist of—
‘‘(A) the core indicators of performance described in
paragraph (2)(A);
‘‘(B) the additional indicators of performance described
in paragraph (2)(B), if any; and
‘‘(C) a description of efforts made to improve outcomes
for workers under the trade adjustment assistance program.
‘‘(2) CORE INDICATORS DESCRIBED.—
‘‘(A) IN GENERAL.—The core indicators of performance
described in this paragraph are—
‘‘(i) the percentage of workers receiving benefits
under this chapter who are employed during the second
calendar quarter following the calendar quarter in
which the workers cease receiving such benefits;
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‘‘(ii) the percentage of such workers who are
employed in each of the third and fourth calendar
quarters following the calendar quarter in which the
workers cease receiving such benefits; and
‘‘(iii) the earnings of such workers in each of the
third and fourth calendar quarters following the calendar quarter in which the workers cease receiving
such benefits.
‘‘(B) ADDITIONAL INDICATORS.—The Secretary and a
cooperating State or cooperating State agency may agree
upon additional indicators of performance for the trade
adjustment assistance program under this chapter, as
appropriate.
‘‘(3) STANDARDS WITH RESPECT TO RELIABILITY OF DATA.—
In preparing the quarterly report required by paragraph (1),
each cooperating State or cooperating State agency shall establish procedures that are consistent with guidelines to be issued
by the Secretary to ensure that the data reported are valid
and reliable.’’.
Procedures.
Immigration.
PUBLIC LAW 111–5—FEB. 17, 2009
SEC. 1853. VERIFICATION OF ELIGIBILITY FOR PROGRAM BENEFITS.
Section 239 of the Trade Act of 1974 (19 U.S.C. 2311), as
amended, is further amended by adding at the end the following:
‘‘(k) VERIFICATION OF ELIGIBILITY FOR PROGRAM BENEFITS.—
‘‘(1) IN GENERAL.—An agreement under this subchapter
shall provide that the State shall periodically redetermine that
a worker receiving benefits under this subchapter who is not
a citizen or national of the United States remains in a satisfactory immigration status. Once satisfactory immigration status
has been initially verified through the immigration status
verification system described in section 1137(d) of the Social
Security Act (42 U.S.C. 1320b-7(d)) for purposes of establishing
a worker’s eligibility for unemployment compensation, the State
shall reverify the worker’s immigration status if the documentation provided during initial verification will expire during the
period in which that worker is potentially eligible to receive
benefits under this subchapter. The State shall conduct such
redetermination in a timely manner, utilizing the immigration
status verification system described in section 1137(d) of the
Social Security Act (42 U.S.C. 1320b-7(d)).
‘‘(2) PROCEDURES.—The Secretary shall establish procedures to ensure the uniform application by the States of the
requirements of this subsection.’’.
SEC. 1854. COLLECTION OF DATA AND REPORTS; INFORMATION TO
WORKERS.
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(a) IN GENERAL.—Subchapter C of chapter 2 of title II of the
Trade Act of 1974 (19 U.S.C. 2311 et seq.), as amended, is further
amended by adding at the end the following:
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19 USC 2323.
‘‘SEC. 249B. COLLECTION AND PUBLICATION OF DATA AND REPORTS;
INFORMATION TO WORKERS.
System.
‘‘(a) IN GENERAL.—Not later than 180 days after the date of
the enactment of this section, the Secretary shall implement a
system to collect and report the data described in subsection (b),
as well as any other information that the Secretary considers appropriate to effectively carry out this chapter.
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 393
‘‘(b) DATA TO BE INCLUDED.—The system required under subsection (a) shall include collection of and reporting on the following
data for each fiscal year:
‘‘(1) DATA ON PETITIONS FILED, CERTIFIED, AND DENIED.—
‘‘(A) The number of petitions filed, certified, and denied
under this chapter.
‘‘(B) The number of workers covered by petitions filed,
certified, and denied.
‘‘(C) The number of petitions, classified by—
‘‘(i) the basis for certification, including increased
imports, shifts in production, and other bases of eligibility; and
‘‘(ii) congressional district of the United States.
‘‘(D) The average time for processing such petitions.
‘‘(2) DATA ON BENEFITS RECEIVED.—
‘‘(A) The number of workers receiving benefits under
this chapter.
‘‘(B) The number of workers receiving each type of
benefit, including training, trade readjustment allowances,
employment and case management services, and relocation
and job search allowances, and, to the extent feasible,
credits for health insurance costs under section 35 of the
Internal Revenue Code of 1986.
‘‘(C) The average time during which such workers
receive each such type of benefit.
‘‘(3) DATA ON TRAINING.—
‘‘(A) The number of workers enrolled in training
approved under section 236, classified by major types of
training, including classroom training, training through
distance learning, on-the-job training, and customized
training.
‘‘(B) The number of workers enrolled in full-time
training and part-time training.
‘‘(C) The average duration of training.
‘‘(D) The number of training waivers granted under
section 231(c), classified by type of waiver.
‘‘(E) The number of workers who complete training
and the duration of such training.
‘‘(F) The number of workers who do not complete
training.
‘‘(4) DATA ON OUTCOMES.—
‘‘(A) A summary of the quarterly reports required under
section 239(j).
‘‘(B) The sectors in which workers are employed after
receiving benefits under this chapter.
‘‘(5) DATA ON RAPID RESPONSE ACTIVITIES.—Whether rapid
response activities were provided with respect to each petition
filed under section 221.
‘‘(c) CLASSIFICATION OF DATA.—To the extent possible, in collecting and reporting the data described in subsection (b), the
Secretary shall classify the data by industry, State, and national
totals.
‘‘(d) REPORT.—Not later than December 15 of each year, the
Secretary shall submit to the Committee on Finance of the Senate
and the Committee on Ways and Means of the House of Representatives a report that includes—
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PUBLIC LAW 111–5—FEB. 17, 2009
‘‘(1) a summary of the information collected under this
section for the preceding fiscal year;
‘‘(2) information on the distribution of funds to each State
pursuant to section 236(a)(2); and
‘‘(3) any recommendations of the Secretary with respect
to changes in eligibility requirements, benefits, or training
funding under this chapter based on the data collected under
this section.
‘‘(e) AVAILABILITY OF DATA.—
‘‘(1) IN GENERAL.—The Secretary shall make available to
the public, by publishing on the website of the Department
of Labor and by other means, as appropriate—
‘‘(A) the report required under subsection (d);
‘‘(B) the data collected under this section, in a searchable format; and
‘‘(C) a list of cooperating States and cooperating State
agencies that failed to submit the data required by this
section to the Secretary in a timely manner.
‘‘(2) UPDATES.—The Secretary shall update the data under
paragraph (1) on a quarterly basis.’’.
(b) CLERICAL AMENDMENT.—The table of contents of the Trade
Act of 1974 is amended by inserting after the item relating to
section 249A the following:
Web posting.
Deadline.
‘‘Sec. 249B. Collection and publication of data and reports; information to workers.’’.
(c) EFFECTIVE DATE.—The amendments made by this section
19 USC 2323
note.
shall take effect on the date of the enactment of this Act.
SEC. 1855. FRAUD AND RECOVERY OF OVERPAYMENTS.
Section 243(a)(1) of the Trade Act of 1974 (19 U.S.C. 2315(a)(1))
is amended—
(1) in the matter preceding subparagraph (A)—
(A) by striking ‘‘may waive’’ and inserting ‘‘shall waive’’;
and
(B) by striking ‘‘, in accordance with guidelines prescribed by the Secretary,’’; and
(2) in subparagraph (B), by striking ‘‘would be contrary
to equity and good conscience’’ and inserting ‘‘would cause
a financial hardship for the individual (or the individual’s
household, if applicable) when taking into consideration the
income and resources reasonably available to the individual
(or household) and other ordinary living expenses of the individual (or household)’’.
SEC. 1856. SENSE OF CONGRESS ON APPLICATION OF TRADE ADJUSTMENT ASSISTANCE.
(a) IN GENERAL.—Chapter 5 of title II of the Trade Act of
1974 (19 U.S.C. 2391 et seq.) is amended by adding at the end
the following:
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19 USC 2397a.
‘‘SEC. 288. SENSE OF CONGRESS.
‘‘It is the sense of Congress that the Secretaries of Labor,
Commerce, and Agriculture should apply the provisions of chapter
2 (relating to adjustment assistance for workers), chapter 3 (relating
to adjustment assistance for firms), chapter 4 (relating to adjustment assistance for communities), and chapter 6 (relating to adjustment assistance for farmers), respectively, with the utmost regard
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for the interests of workers, firms, communities, and farmers petitioning for benefits under such chapters.’’.
(b) CLERICAL AMENDMENT.—The table of contents of the Trade
Act of 1974 is amended by inserting after the item relating to
section 287 the following:
‘‘Sec. 288. Sense of Congress.’’.
SEC. 1857. CONSULTATIONS IN PROMULGATION OF REGULATIONS.
Section 248 of the Trade Act of 1974 (19 U.S.C. 2320) is
amended—
(1) by striking ‘‘The Secretary shall’’ and inserting the
following:
‘‘(a) IN GENERAL.—The Secretary shall’’; and
(2) by adding at the end the following:
‘‘(b) CONSULTATIONS.—Not later than 90 days before issuing
a regulation under subsection (a), the Secretary shall consult with
the Committee on Finance of the Senate and the Committee on
Ways and Means of the House of Representatives with respect
to the regulation.’’.
Deadline.
SEC. 1858. TECHNICAL CORRECTIONS.
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(a) DETERMINATIONS BY SECRETARY OF LABOR.—Section 223(c)
of the Trade Act of 1974 (19 U.S.C. 2273(c)) is amended by striking
‘‘his determination’’ and inserting ‘‘a determination’’.
(b) QUALIFYING REQUIREMENTS FOR WORKERS.—Section 231(a)
of the Trade Act of 1974 (19 U.S.C. 2291(a)) is amended—
(1) in paragraph (1)—
(A) in the matter preceding subparagraph (A), by
striking ‘‘his application’’ and inserting ‘‘the worker’s
application’’; and
(B) in subparagraph (A), by striking ‘‘he is covered’’
and inserting ‘‘the worker is covered’’;
(2) in paragraph (2)—
(A) in subparagraph (A), by striking the period and
inserting a comma; and
(B) in subparagraph (D), by striking ‘‘5 U.S.C.
8521(a)(1)’’ and inserting ‘‘section 8521(a)(1) of title 5,
United States Code’’; and
(3) in paragraph (3)—
(A) by striking ‘‘he’’ each place it appears and inserting
‘‘the worker’’; and
(B) in subparagraph (C), by striking ‘‘him’’ and
inserting ‘‘the worker’’.
(c) SUBPOENA POWER.—Section 249 of the Trade Act of 1974
(19 U.S.C. 2321) is amended—
(1) in the section heading, by striking ‘‘SUBPENA’’ and
inserting ‘‘SUBPOENA’’;
(2) by striking ‘‘subpena’’ and inserting ‘‘subpoena’’ each
place it appears; and
(3) in subsection (a), by striking ‘‘him’’ and inserting ‘‘the
Secretary’’.
(d) CLERICAL AMENDMENT.—The table of contents of the Trade
Act of 1974 is amended by striking the item relating to section
249 and inserting the following:
‘‘Sec. 249. Subpoena power.’’.
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PUBLIC LAW 111–5—FEB. 17, 2009
PART II—TRADE ADJUSTMENT ASSISTANCE
FOR FIRMS
SEC. 1861. EXPANSION TO SERVICE SECTOR FIRMS.
(a) IN GENERAL.—Section 251 of the Trade Act of 1974 (19
U.S.C. 2341) is amended by inserting ‘‘or service sector firm’’ after
‘‘agricultural firm’’ each place it appears.
(b) DEFINITION OF SERVICE SECTOR FIRM.—Section 261 of the
Trade Act of 1974 (19 U.S.C. 2351) is amended—
(1) by striking ‘‘chapter,’’ and inserting ‘‘chapter:’’;
(2) by striking ‘‘the term ‘firm’ ’’ and inserting the following:
‘‘(1) FIRM.—The term ‘firm’ ’’; and
(3) by adding at the end the following:
‘‘(2) SERVICE SECTOR FIRM.—The term ‘service sector firm’
means a firm engaged in the business of supplying services.’’.
(c) CONFORMING AMENDMENTS.—
(1) Section 251(c)(1)(C) of the Trade Act of 1974 (19 U.S.C.
2341(c)(1)(C)) is amended—
(A) by inserting ‘‘or services’’ after ‘‘articles’’ the first
place it appears; and
(B) by inserting ‘‘or services which are supplied’’ after
‘‘produced’’.
(2) Section 251(c)(2)(B)(ii) of such Act is amended to read
as follows:
‘‘(ii) Any firm that engages in exploration or drilling for
oil or natural gas, or otherwise produces oil or natural gas,
shall be considered to be producing articles directly competitive
with imports of oil and with imports of natural gas.’’.
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SEC. 1862. MODIFICATION OF REQUIREMENTS FOR CERTIFICATION.
Section 251(c)(1)(B) of the Trade Act of 1974 (19 U.S.C.
2341(c)(1)(B)) is amended to read as follows:
‘‘(B) that—
‘‘(i) sales or production, or both, of the firm have
decreased absolutely,
‘‘(ii) sales or production, or both, of an article or service
that accounted for not less than 25 percent of the total
sales or production of the firm during the 12-month period
preceding the most recent 12-month period for which date
are available have decreased absolutely,
‘‘(iii) sales or production, or both, of the firm during
the most recent 12-month period for which data are available have decreased compared to—
‘‘(I) the average annual sales or production for
the firm during the 24-month period preceding that
12-month period, or
‘‘(II) the average annual sales or production for
the firm during the 36-month period preceding that
12-month period, and
‘‘(iv) sales or production, or both, of an article or service
that accounted for not less than 25 percent of the total
sales or production of the firm during the most recent
12-month period for which data are available have
decreased compared to—
‘‘(I) the average annual sales or production for
the article or service during the 24-month period preceding that 12-month period, or
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‘‘(II) the average annual sales or production for
the article or service during the 36-month period preceding that 12-month period, and’’.
SEC. 1863. BASIS FOR DETERMINATIONS.
Section 251 of the Trade Act of 1974 (19 U.S.C. 2341), as
amended, is further amended by adding at the end the following:
‘‘(e) BASIS FOR SECRETARY’S DETERMINATIONS.—For purposes
of subsection (c)(1)(C), the Secretary may determine that there
are increased imports of like or directly competitive articles or
services, if customers accounting for a significant percentage of
the decrease in the sales or production of the firm certify to the
Secretary that such customers have increased their imports of such
articles or services from a foreign country, either absolutely or
relative to their acquisition of such articles or services from suppliers located in the United States.
‘‘(f) NOTIFICATION TO FIRMS OF AVAILABILITY OF BENEFITS.—
Upon receiving notice from the Secretary of Labor under section
225 of the identity of a firm that is covered by a certification
issued under section 223, the Secretary of Commerce shall notify
the firm of the availability of adjustment assistance under this
chapter.’’.
Certification.
SEC. 1864. OVERSIGHT AND ADMINISTRATION; AUTHORIZATION OF
APPROPRIATIONS.
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(a) IN GENERAL.—Chapter 3 of title II of the Trade Act of
1974 (19 U.S.C. 2341 et seq.) is amended—
(1) by striking sections 254, 255, 256, and 257;
(2) by redesignating sections 258, 259, 260, 261, 262, 264,
and 265, as sections 256, 257, 258, 259, 260, 261, and 262,
respectively; and
(3) by inserting after section 253 the following:
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19 USC
2344–2347.
19 USC
2348–2352, 2354,
2355.
‘‘SEC. 254. OVERSIGHT AND ADMINISTRATION.
19 USC 2344.
‘‘(a) IN GENERAL.—The Secretary shall, to such extent and
in such amounts as are provided in appropriations Acts, provide
grants to intermediary organizations (referred to in section
253(b)(1)) throughout the United States pursuant to agreements
with such intermediary organizations. Each such agreement shall
require the intermediary organization to provide benefits to firms
certified under section 251. The Secretary shall, to the maximum
extent practicable, provide by October 1, 2010, that contracts
entered into with intermediary organizations be for a 12-month
period and that all such contracts have the same beginning date
and the same ending date.
‘‘(b) DISTRIBUTION OF FUNDS.—
‘‘(1) IN GENERAL.—Not later than 90 days after the date
of the enactment of this subsection, the Secretary shall develop
a methodology for the distribution of funds among the intermediary organizations described in subsection (a).
‘‘(2) PROMPT INITIAL DISTRIBUTION.—The methodology
described in paragraph (1) shall ensure the prompt initial distribution of funds and establish additional criteria governing
the apportionment and distribution of the remainder of such
funds among the intermediary organizations.
‘‘(3) CRITERIA.—The methodology described in paragraph
(1) shall include criteria based on the data in the annual
report on the trade adjustment assistance for firms program
Grants.
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Deadline.
Contracts.
Deadline.
Methodology.
Criteria.
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described in section 1866 of the Trade and Globalization Adjustment Assistance Act of 2009.
‘‘(c) REQUIREMENTS FOR CONTRACTS.—An agreement with an
intermediary organization described in subsection (a) shall require
the intermediary organization to contract for the supply of services
to carry out grants under this chapter in accordance with terms
and conditions that are consistent with guidelines established by
the Secretary.
‘‘(d) CONSULTATIONS.—
‘‘(1) CONSULTATIONS REGARDING METHODOLOGY.—The Secretary shall consult with the Committee on Finance of the
Senate and the Committee on Ways and Means of the House
of Representatives—
‘‘(A) not less than 30 days before finalizing the methodology described in subsection (b); and
‘‘(B) not less than 60 days before adopting any changes
to such methodology.
‘‘(2) CONSULTATIONS REGARDING GUIDELINES.—The Secretary shall consult with the Committee on Finance of the
Senate and the Committee on Ways and Means of the House
of Representatives not less than 60 days before finalizing the
guidelines described in subsection (c) or adopting any subsequent changes to such guidelines.
Guidelines.
Deadlines.
19 USC 2345.
‘‘SEC. 255. AUTHORIZATION OF APPROPRIATIONS.
Time period.
‘‘(a) IN GENERAL.—There are authorized to be appropriated
to the Secretary $50,000,000 for each of the fiscal years 2009
through 2010, and $12,501,000 for the period beginning October
1, 2010, and ending December 31, 2010, to carry out the provisions
of this chapter. Amounts appropriated pursuant to this subsection
shall—
‘‘(1) be available to provide adjustment assistance to firms
that file a petition for such assistance pursuant to this chapter
on or before December 31, 2010; and
‘‘(2) otherwise remain available until expended.
‘‘(b) PERSONNEL.—Of the amounts appropriated pursuant to
this section for each fiscal year, $350,000 shall be available for
full-time positions in the Department of Commerce to administer
the provisions of this chapter. Of such funds the Secretary shall
make available to the Economic Development Administration such
sums as may be necessary to establish the position of Director
of Adjustment Assistance for Firms and such other full-time positions as may be appropriate to administer the provisions of this
chapter.’’.
(b) RESIDUAL AUTHORITY.—The Secretary of Commerce shall
have the authority to modify, terminate, resolve, liquidate, or take
any other action with respect to a loan, guarantee, contract, or
any other financial assistance that was extended under section
254, 255, 256, or 257 of the Trade Act of 1974 (19 U.S.C. 2344,
2345, 2346, and 2347), as in effect on the day before the effective
date set forth in section 1891.
(c) CONFORMING AMENDMENTS.—
(1) Section 256 of the Trade Act of 1974, as redesignated
by subsection (a) of this section, is amended by striking subsection (d).
(2) Section 258 of the Trade Act of 1974, as redesignated
by subsection (a) of this section, is amended—
Deadline.
Establishment.
19 USC 2344
note.
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19 USC 2348.
19 USC 2350.
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(A) in the first sentence, by striking ‘‘and financial’’;
and
(B) in the last sentence—
(i) by striking ‘‘sections 253 and 254’’ and inserting
‘‘section 253’’; and
(ii) by striking ‘‘title 28 of the United States Code’’
and inserting ‘‘title 28, United States Code’’.
(d) CLERICAL AMENDMENTS.—The table of contents of the Trade
Act of 1974 is amended by striking the items relating to sections
254, 255, 256, 257, 258, 259, 260, 261, 262, 264, and 265, and
inserting the following:
‘‘Sec.
‘‘Sec.
‘‘Sec.
‘‘Sec.
‘‘Sec.
‘‘Sec.
‘‘Sec.
‘‘Sec.
254.
255.
256.
257.
258.
259.
260.
261.
Oversight and administration.
Authorization of appropriations.
Protective provisions.
Penalties.
Civil actions.
Definitions.
Regulations.
Study by Secretary of Commerce when International Trade Commission
begins investigation; action where there is affirmative finding.
‘‘Sec. 262. Assistance to industries.’’.
(e) EFFECTIVE DATE.—This section and the amendments made
by this section shall take effect upon the expiration of the 90day period beginning on the date of the enactment of this Act,
except that subsections (b) and (d) of section 254 of the Trade
Act of 1974 (as added by subsection (a) of this section) shall take
effect on such date of enactment.
19 USC 2344
note.
SEC. 1865. INCREASED PENALTIES FOR FALSE STATEMENTS.
Section 257 of the Trade Act of 1974, as redesignated by section
1864(a), is amended to read as follows:
19 USC 2349.
‘‘SEC. 257. PENALTIES.
‘‘Any person who—
‘‘(1) makes a false statement of a material fact knowing
it to be false, or knowingly fails to disclose a material fact,
or willfully overvalues any security, for the purpose of influencing in any way a determination under this chapter, or
for the purpose of obtaining money, property, or anything of
value under this chapter, or
‘‘(2) makes a false statement of a material fact knowing
it to be false, or knowingly fails to disclose a material fact,
when providing information to the Secretary during an investigation of a petition under this chapter,
shall be imprisoned for not more than 2 years, or fined under
title 18, United States Code, or both.’’.
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SEC. 1866. ANNUAL REPORT ON TRADE ADJUSTMENT ASSISTANCE FOR
FIRMS.
19 USC 2356.
(a) IN GENERAL.—Not later than December 15, 2009, and each
year thereafter, the Secretary of Commerce shall prepare a report
containing data regarding the trade adjustment assistance for firms
program provided for in chapter 3 of title II of the Trade Act
of 1974 (19 U.S.C. 2341 et seq.) for the preceding fiscal year.
The data shall include the following:
(1) The number of firms that inquired about the program.
(2) The number of petitions filed under section 251.
(3) The number of petitions certified and denied.
(4) The average time for processing petitions.
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Federal Register,
publication.
PUBLIC LAW 111–5—FEB. 17, 2009
(5) The number of petitions filed and firms certified for
each congressional district of the United States.
(6) The number of firms that received assistance in preparing their petitions.
(7) The number of firms that received assistance developing
business recovery plans.
(8) The number of business recovery plans approved and
denied by the Secretary of Commerce.
(9) Sales, employment, and productivity at each firm
participating in the program at the time of certification.
(10) Sales, employment, and productivity at each firm upon
completion of the program and each year for the 2-year period
following completion.
(11) The financial assistance received by each firm participating in the program.
(12) The financial contribution made by each firm participating in the program.
(13) The types of technical assistance included in the business recovery plans of firms participating in the program.
(14) The number of firms leaving the program before completing the project or projects in their business recovery plans
and the reason the project was not completed.
(b) CLASSIFICATION OF DATA.—To the extent possible, in collecting and reporting the data described in subsection (a), the
Secretary shall classify the data by intermediary organization,
State, and national totals.
(c) REPORT TO CONGRESS; PUBLICATION.—The Secretary of Commerce shall—
(1) submit the report described in subsection (a) to the
Committee on Finance of the Senate and the Committee on
Ways and Means of the House of Representatives; and
(2) publish the report in the Federal Register and on the
website of the Department of Commerce.
(d) PROTECTION OF CONFIDENTIAL INFORMATION.—The Secretary of Commerce may not release information described in subsection (a) that the Secretary considers to be confidential business
information unless the person submitting the confidential business
information had notice, at the time of submission, that such
information would be released by the Secretary, or such person
subsequently consents to the release of the information. Nothing
in this subsection shall be construed to prohibit the Secretary
from providing such confidential business information to a court
in camera or to another party under a protective order issued
by a court.
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SEC. 1867. TECHNICAL CORRECTIONS.
(a) IN GENERAL.—Section 251 of the Trade Act of 1974 (19
U.S.C. 2341), as amended, is further amended—
(1) in subsection (a), by striking ‘‘he has’’ and inserting
‘‘the Secretary has’’; and
(2) in subsection (d), by striking ‘‘60 days’’ and inserting
‘‘40 days’’.
(b) TECHNICAL ASSISTANCE.—Section 253(a)(3) of the Trade Act
of 1974 (19 U.S.C. 2343(a)(3)) is amended by striking ‘‘of a certified
firm’’ and inserting ‘‘to a certified firm’’.
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PART III—TRADE ADJUSTMENT ASSISTANCE
FOR COMMUNITIES
SEC. 1871. PURPOSE.
The purpose of the amendments made by this part is to assist
communities impacted by trade with economic adjustment through
the coordination of Federal, State, and local resources, the creation
of community-based development strategies, and the development
and provision of programs that meet the training needs of workers
covered by certifications under section 223.
19 USC 2371
note.
SEC. 1872. TRADE ADJUSTMENT ASSISTANCE FOR COMMUNITIES.
(a) IN GENERAL.—Chapter 4 of title II of the Trade Act of
1974 (19 U.S.C. 2371 et seq.) is amended to read as follows:
‘‘CHAPTER 4—TRADE ADJUSTMENT ASSISTANCE FOR
COMMUNITIES
‘‘Subchapter A—Trade Adjustment Assistance for
Communities
‘‘SEC. 271. DEFINITIONS.
19 USC 2371.
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‘‘In this subchapter:
‘‘(1) AGRICULTURAL COMMODITY PRODUCER.—The term ‘agricultural commodity producer’ has the meaning given that term
in section 291.
‘‘(2) COMMUNITY.—The term ‘community’ means a city,
county, or other political subdivision of a State or a consortium
of political subdivisions of a State.
‘‘(3) COMMUNITY IMPACTED BY TRADE.—The term ‘community impacted by trade’ means a community described in section
273(b)(2).
‘‘(4) ELIGIBLE COMMUNITY.—The term ‘eligible community’
means a community that the Secretary has determined under
section 273(b)(1) is eligible to apply for assistance under this
subchapter.
‘‘(5) SECRETARY.—The term ‘Secretary’ means the Secretary
of Commerce.
‘‘SEC. 272. ESTABLISHMENT OF TRADE ADJUSTMENT ASSISTANCE FOR
COMMUNITIES PROGRAM.
19 USC 2371a.
‘‘Not later than August 1, 2009, the Secretary shall establish
a trade adjustment assistance for communities program at the
Department of Commerce under which the Secretary shall—
‘‘(1) provide technical assistance under section 274 to
communities impacted by trade to facilitate the economic
adjustment of those communities; and
‘‘(2) award grants to communities impacted by trade to
carry out strategic plans developed under section 276.
Deadline.
‘‘SEC. 273. ELIGIBILITY; NOTIFICATION.
19 USC 2371b.
‘‘(a) PETITION.—
‘‘(1) IN GENERAL.—A community may submit a petition
to the Secretary for an affirmative determination under subsection (b)(1) that the community is eligible to apply for assistance under this subchapter if—
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‘‘(A) on or after August 1, 2009, one or more certifications described in subsection (b)(3) are made with respect
to the community; and
‘‘(B) the community submits the petition not later than
180 days after the date of the most recent certification.
‘‘(2) SPECIAL RULE WITH RESPECT TO CERTAIN COMMUNITIES.—In the case of a community with respect to which
one or more certifications described in subsection (b)(3) were
made on or after January 1, 2007, and before August 1, 2009,
the community may submit not later than February 1, 2010,
a petition to the Secretary for an affirmative determination
under subsection (b)(1).
‘‘(b) AFFIRMATIVE DETERMINATION.—
‘‘(1) IN GENERAL.—The Secretary shall make an affirmative
determination that a community is eligible to apply for assistance under this subchapter if the Secretary determines that
the community is a community impacted by trade.
‘‘(2) COMMUNITY IMPACTED BY TRADE.—A community is a
community impacted by trade if—
‘‘(A) one or more certifications described in paragraph
(3) are made with respect to the community; and
‘‘(B) the Secretary determines that the community is
significantly affected by the threat to, or the loss of, jobs
associated with any such certification.
‘‘(3) CERTIFICATION DESCRIBED.—A certification described
in this paragraph is a certification—
‘‘(A) by the Secretary of Labor that a group of workers
in the community is eligible to apply for assistance under
section 223;
‘‘(B) by the Secretary of Commerce that a firm located
in the community is eligible to apply for adjustment assistance under section 251; or
‘‘(C) by the Secretary of Agriculture that a group of
agricultural commodity producers in the community is
eligible to apply for adjustment assistance under section
293.
‘‘(c) NOTIFICATIONS.—
‘‘(1) NOTIFICATION TO THE GOVERNOR.—The Governor of
a State shall be notified promptly—
‘‘(A) by the Secretary of Labor, upon making a determination that a group of workers in the State is eligible
for assistance under section 223;
‘‘(B) by the Secretary of Commerce, upon making a
determination that a firm in the State is eligible for assistance under section 251; and
‘‘(C) by the Secretary of Agriculture, upon making a
determination that a group of agricultural commodity producers in the State is eligible for assistance under section
293.
‘‘(2) NOTIFICATION TO COMMUNITY.—Upon making an
affirmative determination under subsection (b)(1) that a
community is eligible to apply for assistance under this subchapter, the Secretary shall promptly notify the community
and the Governor of the State in which the community is
located—
‘‘(A) of the affirmative determination;
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‘‘(B) of the applicable provisions of this subchapter;
and
‘‘(C) of the means for obtaining assistance under this
subchapter and other appropriate economic assistance that
may be available to the community.
‘‘SEC. 274. TECHNICAL ASSISTANCE.
19 USC 2371c.
‘‘(a) IN GENERAL.—The Secretary shall provide comprehensive
technical assistance to an eligible community to assist the community to—
‘‘(1) diversify and strengthen the economy in the community;
‘‘(2) identify significant impediments to economic development that result from the impact of trade on the community;
and
‘‘(3) develop a strategic plan under section 276 to address
economic adjustment and workforce dislocation in the community, including unemployment among agricultural commodity
producers.
‘‘(b) COORDINATION OF FEDERAL RESPONSE.—The Secretary
shall coordinate the Federal response to an eligible community
by—
‘‘(1) identifying Federal, State, and local resources that
are available to assist the community in responding to economic
distress; and
‘‘(2) assisting the community in accessing available Federal
assistance and ensuring that such assistance is provided in
a targeted, integrated manner.
‘‘(c) INTERAGENCY COMMUNITY ASSISTANCE WORKING GROUP.—
‘‘(1) IN GENERAL.—The Secretary shall establish an interagency Community Assistance Working Group, to be chaired
by the Secretary or the Secretary’s designee, which shall assist
the Secretary with the coordination of the Federal response
pursuant to subsection (b).
‘‘(2) MEMBERSHIP.—The Working Group shall consist of
representatives of any Federal department or agency with
responsibility for providing economic adjustment assistance,
including the Department of Agriculture, the Department of
Defense, the Department of Education, the Department of
Labor, the Department of Housing and Urban Development,
the Department of Health and Human Services, the Small
Business Administration, the Department of the Treasury, and
any other Federal, State, or regional public department or
agency the Secretary determines to be appropriate.
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‘‘SEC. 275. GRANTS FOR ELIGIBLE COMMUNITIES.
Establishment.
19 USC 2371d.
‘‘(a) IN GENERAL.—The Secretary may award a grant under
this section to an eligible community to assist the community in
carrying out any project or program that is included in a strategic
plan developed by the community under section 276.
‘‘(b) APPLICATION.—
‘‘(1) IN GENERAL.—An eligible community seeking to receive
a grant under this section shall submit a grant application
to the Secretary that contains—
‘‘(A) the strategic plan developed by the community
under section 276(a)(1)(A) and approved by the Secretary
under section 276(a)(1)(B); and
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‘‘(B) a description of the project or program included
in the strategic plan with respect to which the community
seeks the grant.
‘‘(2) COORDINATION AMONG GRANT PROGRAMS.—If an entity
in an eligible community is seeking or plans to seek a Community College and Career Training Grant under section 278
or a Sector Partnership Grant under section 279A while the
eligible community is seeking a grant under this section, the
eligible community shall include in the grant application a
description of how the eligible community will integrate any
projects or programs carried out using a grant under this
section with any projects or programs that may be carried
out using such other grants.
‘‘(c) LIMITATION.—An eligible community may not be awarded
more than $5,000,000 under this section.
‘‘(d) COST-SHARING.—
‘‘(1) FEDERAL SHARE.—The Federal share of a project or
program for which a grant is awarded under this section may
not exceed 95 percent of the cost of such project or program.
‘‘(2) COMMUNITY SHARE.—The Secretary shall require, as
a condition of awarding a grant to an eligible community under
this section, that the eligible community contribute not less
than an amount equal to 5 percent of the amount of the
grant toward the cost of the project or program for which
the grant is awarded.
‘‘(e) GRANTS TO SMALL- AND MEDIUM-SIZED COMMUNITIES.—
The Secretary shall give priority to grant applications submitted
under this section by eligible communities that are small- and
medium-sized communities.
‘‘(f) ANNUAL REPORT.—Not later than December 15 in each
of the calendar years 2009 through 2011, the Secretary shall submit
to the Committee on Finance of the Senate and the Committee
on Ways and Means of the House of Representatives a report—
‘‘(1) describing each grant awarded under this section
during the preceding fiscal year; and
‘‘(2) assessing the impact on the eligible community of
each such grant awarded in a fiscal year before the fiscal
year referred to in paragraph (1).
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19 USC 2371e.
‘‘SEC. 276. STRATEGIC PLANS.
‘‘(a) IN GENERAL.—
‘‘(1) DEVELOPMENT.—An eligible community that intends
to apply for a grant under section 275 shall—
‘‘(A) develop a strategic plan for the community’s economic adjustment to the impact of trade; and
‘‘(B) submit the plan to the Secretary for evaluation
and approval.
‘‘(2) INVOLVEMENT OF PRIVATE AND PUBLIC ENTITIES.—
‘‘(A) IN GENERAL.—To the extent practicable, an eligible
community shall consult with entities described in subparagraph (B) in developing a strategic plan under paragraph
(1).
‘‘(B) ENTITIES DESCRIBED.—Entities described in this
subparagraph are public and private entities within the
eligible community, including—
‘‘(i) local, county, or State government agencies
serving the community;
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‘‘(ii) firms, including small- and medium-sized
firms, within the community;
‘‘(iii) local workforce investment boards established
under section 117 of the Workforce Investment Act
of 1998 (29 U.S.C. 2832);
‘‘(iv) labor organizations, including State labor federations and labor-management initiatives, representing workers in the community; and
‘‘(v) educational institutions, local educational
agencies, or other training providers serving the
community.
‘‘(b) CONTENTS.—The strategic plan shall, at a minimum, contain the following:
‘‘(1) A description and analysis of the capacity of the eligible
community to achieve economic adjustment to the impact of
trade.
‘‘(2) An analysis of the economic development challenges
and opportunities facing the community as well as the strengths
and weaknesses of the economy of the community.
‘‘(3) An assessment of the commitment of the eligible
community to the strategic plan over the long term and the
participation and input of members of the community affected
by economic dislocation.
‘‘(4) A description of the role and the participation of the
entities described in subsection (a)(2)(B) in developing the strategic plan.
‘‘(5) A description of the projects to be undertaken by the
eligible community under the strategic plan.
‘‘(6) A description of how the strategic plan and the projects
to be undertaken by the eligible community will facilitate the
community’s economic adjustment.
‘‘(7) A description of the educational and training programs
available to workers in the eligible community and the future
employment needs of the community.
‘‘(8) An assessment of the cost of implementing the strategic
plan, the timing of funding required by the eligible community
to implement the strategic plan, and the method of financing
to be used to implement the strategic plan.
‘‘(9) A strategy for continuing the economic adjustment
of the eligible community after the completion of the projects
described in paragraph (5).
‘‘(c) GRANTS TO DEVELOP STRATEGIC PLANS.—
‘‘(1) IN GENERAL.—The Secretary, upon receipt of an
application from an eligible community, may award a grant
to the community to assist the community in developing a
strategic plan under subsection (a)(1). A grant awarded under
this paragraph shall not exceed 75 percent of the cost of developing the strategic plan.
‘‘(2) FUNDS TO BE USED.—Of the funds appropriated pursuant to section 277(c), the Secretary may make available not
more than $25,000,000 for each of the fiscal years 2009 and
2010, and $6,250,000 for the period beginning October 1, 2010,
and ending December 31, 2010, to provide grants to eligible
communities under paragraph (1).
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‘‘SEC. 277. GENERAL PROVISIONS.
Time period.
19 USC 2371f.
‘‘(a) REGULATIONS.—
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‘‘(1) IN GENERAL.—The Secretary shall prescribe such regulations as are necessary to carry out the provisions of this
subchapter, including—
‘‘(A) establishing specific guidelines for the submission
and evaluation of strategic plans under section 276;
‘‘(B) establishing specific guidelines for the submission
and evaluation of grant applications under section 275;
and
‘‘(C) administering the grant programs established
under sections 275 and 276.
‘‘(2) CONSULTATIONS.—The Secretary shall consult with the
Committee on Finance of the Senate and the Committee on
Ways and Means of the House of Representatives not less
than 90 days prior to promulgating any final rule or regulation
pursuant to paragraph (1).
‘‘(b) PERSONNEL.—The Secretary shall designate such staff as
may be necessary to carry out the responsibilities described in
this subchapter.
‘‘(c) AUTHORIZATION OF APPROPRIATIONS.—
‘‘(1) IN GENERAL.—There are authorized to be appropriated
to the Secretary $150,000,000 for each of the fiscal years 2009
and 2010, and $37,500,000 for the period beginning October
1, 2010, and ending December 31, 2010, to carry out this
subchapter.
‘‘(2) AVAILABILITY.—Amounts appropriated pursuant to this
subchapter—
‘‘(A) shall be available to provide adjustment assistance
to communities that have been approved for assistance
pursuant to this chapter on or before December 31, 2010;
and
‘‘(B) shall otherwise remain available until expended.
‘‘(3) SUPPLEMENT NOT SUPPLANT.—Funds appropriated
pursuant to this subchapter shall be used to supplement and
not supplant other Federal, State, and local public funds
expended to provide economic development assistance for
communities.
Deadline.
Designation.
‘‘Subchapter B—Community College and Career Training
Grant Program
‘‘SEC. 278. COMMUNITY COLLEGE AND CAREER TRAINING GRANT PROGRAM.
19 USC 2372.
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‘‘(a) GRANTS AUTHORIZED.—
‘‘(1) IN GENERAL.—Beginning August 1, 2009, the Secretary
may award Community College and Career Training Grants
to eligible institutions for the purpose of developing, offering,
or improving educational or career training programs for
workers eligible for training under section 236.
‘‘(2) LIMITATIONS.—An eligible institution may not be
awarded—
‘‘(A) more than one grant under this section; or
‘‘(B) a grant under this section in excess of $1,000,000.
‘‘(b) DEFINITIONS.—In this section:
‘‘(1) ELIGIBLE INSTITUTION.—The term ‘eligible institution’
means an institution of higher education (as defined in section
102 of the Higher Education Act of 1965 (20 U.S.C. 1002)),
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but only with respect to a program offered by the institution
that can be completed in not more than 2 years.
‘‘(2) SECRETARY.—The term ‘Secretary’ means the Secretary
of Labor.
‘‘(c) GRANT PROPOSALS.—
‘‘(1) IN GENERAL.—An eligible institution seeking to receive
a grant under this section shall submit a grant proposal to
the Secretary at such time, in such manner, and containing
such information as the Secretary may require.
‘‘(2) GUIDELINES.—Not later than June 1, 2009, the Secretary shall—
‘‘(A) promulgate guidelines for the submission of grant
proposals under this section; and
‘‘(B) publish and maintain such guidelines on the
website of the Department of Labor.
‘‘(3) ASSISTANCE.—The Secretary shall offer assistance in
preparing a grant proposal to any eligible institution that
requests such assistance.
‘‘(4) GENERAL REQUIREMENTS FOR GRANT PROPOSALS.—
‘‘(A) IN GENERAL.—A grant proposal submitted to the
Secretary under this section shall include a detailed
description of—
‘‘(i) the specific project for which the grant proposal
is submitted, including the manner in which the grant
will be used to develop, offer, or improve an educational
or career training program that is suited to workers
eligible for training under section 236;
‘‘(ii) the extent to which the project for which the
grant proposal is submitted will meet the educational
or career training needs of workers in the community
served by the eligible institution who are eligible for
training under section 236;
‘‘(iii) the extent to which the project for which
the grant proposal is submitted fits within any overall
strategic plan developed by an eligible community
under section 276;
‘‘(iv) the extent to which the project for which
the grant proposal is submitted relates to any project
funded by a Sector Partnership Grant awarded under
section 279A; and
‘‘(v) any previous experience of the eligible institution in providing educational or career training programs to workers eligible for training under section
236.
‘‘(B) ABSENCE OF EXPERIENCE.—The absence of any
previous experience in providing educational or career
training programs described in subparagraph (A)(v) shall
not automatically disqualify an eligible institution from
receiving a grant under this section.
‘‘(5) COMMUNITY OUTREACH REQUIRED.—In order to be
considered by the Secretary, a grant proposal submitted by
an eligible institution under this section shall—
‘‘(A) demonstrate that the eligible institution—
‘‘(i) reached out to employers, and other entities
described in section 276(a)(2)(B) to identify—
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Web posting.
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‘‘(I) any shortcomings in existing educational
and career training opportunities available to
workers in the community; and
‘‘(II) any future employment opportunities
within the community and the educational and
career training skills required for workers to meet
the future employment demand;
‘‘(ii) reached out to other similarly situated institutions in an effort to benefit from any best practices
that may be shared with respect to providing educational or career training programs to workers eligible
for training under section 236; and
‘‘(iii) reached out to any eligible partnership in
the community that has sought or received a Sector
Partnership Grant under section 279A to enhance the
effectiveness of each grant and avoid duplication of
efforts; and
‘‘(B) include a detailed description of—
‘‘(i) the extent and outcome of the outreach conducted under subparagraph (A);
‘‘(ii) the extent to which the project for which the
grant proposal is submitted will contribute to meeting
any shortcomings identified under subparagraph
(A)(i)(I) or any educational or career training needs
identified under subparagraph (A)(i)(II); and
‘‘(iii) the extent to which employers, including
small- and medium-sized firms within the community,
have demonstrated a commitment to employing
workers who would benefit from the project for which
the grant proposal is submitted.
‘‘(d) CRITERIA FOR AWARD OF GRANTS.—
‘‘(1) IN GENERAL.—Subject to the appropriation of funds,
the Secretary shall award a grant under this section based
on—
‘‘(A) a determination of the merits of the grant proposal
submitted by the eligible institution to develop, offer, or
improve educational or career training programs to be made
available to workers eligible for training under section
236;
‘‘(B) an evaluation of the likely employment opportunities available to workers who complete an educational or
career training program that the eligible institution proposes to develop, offer, or improve; and
‘‘(C) an evaluation of prior demand for training programs by workers eligible for training under section 236
in the community served by the eligible institution, as
well as the availability and capacity of existing training
programs to meet future demand for training programs.
‘‘(2) PRIORITY FOR CERTAIN COMMUNITIES.—In awarding
grants under this section, the Secretary shall give priority
to an eligible institution that serves a community that the
Secretary of Commerce has determined under section 273 is
eligible to apply for assistance under subchapter A within the
5-year period preceding the date on which the grant proposal
is submitted to the Secretary under this section.
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‘‘(3) MATCHING REQUIREMENTS.—A grant awarded under
this section may not be used to satisfy any private matching
requirement under any other provision of law.
‘‘(e) ANNUAL REPORT.—Not later than December 15 in each
of the calendar years 2009 through 2011, the Secretary shall submit
to the Committee on Finance of the Senate and the Committee
on Ways and Means of the House of Representatives a report—
‘‘(1) describing each grant awarded under this section
during the preceding fiscal year; and
‘‘(2) assessing the impact of each award of a grant under
this section in a fiscal year preceding the fiscal year referred
to in paragraph (1) on workers receiving training under section
236.
‘‘SEC. 279. AUTHORIZATION OF APPROPRIATIONS.
19 USC 2372a.
‘‘(a) AUTHORIZATION OF APPROPRIATIONS.—There are authorized
to be appropriated to the Secretary of Labor $40,000,000 for each
of the fiscal years 2009 and 2010, and $10,000,000 for the period
beginning October 1, 2010, and ending December 31, 2010, to fund
the Community College and Career Training Grant Program. Funds
appropriated pursuant to this section shall remain available until
expended.
‘‘(b) SUPPLEMENT NOT SUPPLANT.—Funds appropriated pursuant to this section shall be used to supplement and not supplant
other Federal, State, and local public funds expended to support
community college and career training programs.
Time period.
‘‘Subchapter C—Industry or Sector Partnership Grant
Program for Communities Impacted by Trade
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‘‘SEC. 279A. INDUSTRY OR SECTOR PARTNERSHIP GRANT PROGRAM
FOR COMMUNITIES IMPACTED BY TRADE.
19 USC 2373.
‘‘(a) PURPOSE.—The purpose of this subchapter is to facilitate
efforts by industry or sector partnerships to strengthen and revitalize industries and create employment opportunities for workers
in communities impacted by trade.
‘‘(b) DEFINITIONS.—In this subchapter:
‘‘(1) COMMUNITY IMPACTED BY TRADE.—The term ‘community impacted by trade’ has the meaning given that term in
section 271.
‘‘(2) DISLOCATED WORKER.—The term ‘dislocated worker’
means a worker who has been totally or partially separated,
or is threatened with total or partial separation, from employment in an industry or sector in a community impacted by
trade.
‘‘(3) ELIGIBLE PARTNERSHIP.—The term ‘eligible partnership’
means a voluntary partnership composed of public and private
persons, firms, or other entities within a community impacted
by trade, that shall include representatives of—
‘‘(A) an industry or sector within the community,
including an industry association;
‘‘(B) local, county, or State government;
‘‘(C) multiple firms in the industry or sector, including
small- and medium-sized firms, within the community;
‘‘(D) local workforce investment boards established
under section 117 of the Workforce Investment Act of 1998
(29 U.S.C. 2832);
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‘‘(E) labor organizations, including State labor federations and labor-management initiatives, representing
workers in the community; and
‘‘(F) educational institutions, local educational agencies, or other training providers serving the community.
‘‘(4) LEAD ENTITY.—The term ‘lead entity’ means—
‘‘(A) an entity designated by the eligible partnership
to be responsible for submitting a grant proposal under
subsection (e) and serving as the eligible partnership’s
fiscal agent in expending any Sector Partnership Grant
awarded under this section; or
‘‘(B) a State agency designated by the Governor of
the State to carry out the responsibilities described in
subparagraph (A).
‘‘(5) SECRETARY.—The term ‘Secretary’ means the Secretary
of Labor.
‘‘(6) TARGETED INDUSTRY OR SECTOR.—The term ‘targeted
industry or sector’ means the industry or sector represented
by an eligible partnership.
‘‘(c) SECTOR PARTNERSHIP GRANTS AUTHORIZED.—Beginning on
August 1, 2009, and subject to the appropriation of funds, the
Secretary shall award Sector Partnership Grants to eligible partnerships to assist the eligible partnerships in carrying out projects,
over periods of not more than 3 years, to strengthen and revitalize
industries and sectors and create employment opportunities for
dislocated workers.
‘‘(d) USE OF SECTOR PARTNERSHIP GRANTS.—An eligible partnership may use a Sector Partnership Grant to carry out any project
that the Secretary determines will further the purpose of this
subchapter, which may include—
‘‘(1) identifying the skill needs of the targeted industry
or sector and any gaps in the available supply of skilled workers
in the community impacted by trade, and developing strategies
for filling the gaps, including by—
‘‘(A) developing systems to better link firms in the
targeted industry or sector to available skilled workers;
‘‘(B) helping firms in the targeted industry or sector
to obtain access to new sources of qualified job applicants;
‘‘(C) retraining dislocated and incumbent workers; or
‘‘(D) facilitating the training of new skilled workers
by aligning the instruction provided by local suppliers of
education and training services with the needs of the targeted industry or sector;
‘‘(2) analyzing the skills and education levels of dislocated
and incumbent workers and developing training to address
skill gaps that prevent such workers from obtaining jobs in
the targeted industry or sector;
‘‘(3) helping firms, especially small- and medium-sized
firms, in the targeted industry or sector increase their productivity and the productivity of their workers;
‘‘(4) helping such firms retain incumbent workers;
‘‘(5) developing learning consortia of small- and mediumsized firms in the targeted industry or sector with similar
training needs to enable the firms to combine their purchases
of training services, and thereby lower their training costs;
‘‘(6) providing information and outreach activities to firms
in the targeted industry or sector regarding the activities of
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 411
the eligible partnership and other local service suppliers that
could assist the firms in meeting needs for skilled workers;
‘‘(7) seeking, applying, and disseminating best practices
learned from similarly situated communities impacted by trade
in the development and implementation of economic growth
and revitalization strategies; and
‘‘(8) identifying additional public and private resources to
support the activities described in this subsection, which may
include the option to apply for a community grant under section
275 or a Community College and Career Training Grant under
section 278 (subject to meeting any additional requirements
of those sections).
‘‘(e) GRANT PROPOSALS.—
‘‘(1) IN GENERAL.—The lead entity of an eligible partnership
seeking to receive a Sector Partnership Grant under this section
shall submit a grant proposal to the Secretary at such time,
in such manner, and containing such information as the Secretary may require.
‘‘(2) GENERAL REQUIREMENTS OF GRANT PROPOSALS.—A
grant proposal submitted under paragraph (1) shall, at a minimum—
‘‘(A) identify the members of the eligible partnership;
‘‘(B) identify the targeted industry or sector for which
the eligible partnership intends to carry out projects using
the Sector Partnership Grant;
‘‘(C) describe the goals that the eligible partnership
intends to achieve to promote the targeted industry or
sector;
‘‘(D) describe the projects that the eligible partnership
will undertake to achieve such goals;
‘‘(E) demonstrate that the eligible partnership has the
organizational capacity to carry out the projects described
in subparagraph (D);
‘‘(F) explain—
‘‘(i) whether—
‘‘(I) the community impacted by trade has
sought or received a community grant under section 275;
‘‘(II) an eligible institution in the community
has sought or received a Community College and
Career Training Grant under section 278; or
‘‘(III) any other entity in the community has
received funds pursuant to any other federally
funded training project; and
‘‘(ii) how the eligible partnership will coordinate
its use of a Sector Partnership Grant with the use
of such other grants or funds in order to enhance
the effectiveness of each grant and any such funds
and avoid duplication of efforts; and
‘‘(G) include performance measures, developed based
on the performance measures issued by the Secretary under
subsection (g)(2), and a timeline for measuring progress
toward achieving the goals described in subparagraph (C).
‘‘(f) AWARD OF GRANTS.—
‘‘(1) IN GENERAL.—Upon application by the lead entity of
an eligible partnership, the Secretary may award a Sector
Partnership Grant to the eligible partnership to assist the
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123 STAT. 412
PUBLIC LAW 111–5—FEB. 17, 2009
partnership in carrying out any of the projects in the grant
proposal that the Secretary determines will further the purposes of this subchapter.
‘‘(2) LIMITATIONS.—An eligible partnership may not be
awarded—
‘‘(A) more than one Sector Partnership Grant; or
‘‘(B) a total grant award under this subchapter in
excess of—
‘‘(i) except as provided in clause (ii), $2,500,000;
or
‘‘(ii) in the case of an eligible partnership located
within a community impacted by trade that is not
served by an institution receiving a Community College
and Career Training Grant under section 278,
$3,000,000.
‘‘(g) ADMINISTRATION BY THE SECRETARY.—
‘‘(1) TECHNICAL ASSISTANCE AND OVERSIGHT.—
‘‘(A) IN GENERAL.—The Secretary shall provide technical assistance to, and oversight of, the lead entity of
an eligible partnership in applying for and administering
Sector Partnership Grants awarded under this section.
‘‘(B) TECHNICAL ASSISTANCE.—Technical assistance provided under subparagraph (A) shall include providing conferences and such other methods of collecting and disseminating information on best practices developed by eligible
partnerships as the Secretary determines appropriate.
‘‘(C) GRANTS OR CONTRACTS FOR TECHNICAL ASSISTANCE.—The Secretary may award a grant or contract to
one or more national or State organizations to provide
technical assistance to foster the planning, formation, and
implementation of eligible partnerships.
‘‘(2) PERFORMANCE MEASURES.—The Secretary shall issue
a range of performance measures, with quantifiable benchmarks, and methodologies that eligible partnerships may use
to measure progress toward the goals described in subsection
(e). In developing such measures, the Secretary shall consider
the benefits of the eligible partnership and its activities for
workers, firms, industries, and communities.
‘‘(h) REPORTS.—
‘‘(1) PROGRESS REPORT.—Not later than 1 year after
receiving a Sector Partnership Grant, and 3 years thereafter,
the lead entity shall submit to the Secretary, on behalf of
the eligible partnership, a report containing—
‘‘(A) a detailed description of the progress made toward
achieving the goals described in subsection (e)(2)(C), using
the performance measures required under subsection
(e)(2)(G);
‘‘(B) a detailed evaluation of the impact of the grant
award on workers and employers in the community
impacted by trade; and
‘‘(C) a detailed description of all expenditures of funds
awarded to the eligible partnership under the Sector Partnership Grant approved by the Secretary under this subchapter.
‘‘(2) ANNUAL REPORT.—Not later than December 15 in each
of the calendar years 2009 through 2011, the Secretary shall
submit to the Committee on Finance of the Senate and the
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Committee on Ways and Means of the House of Representatives
a report—
‘‘(A) describing each Sector Partnership Grant awarded
to an eligible partnership during the preceding fiscal year;
and
‘‘(B) assessing the impact of each Sector Partnership
Grant awarded in a fiscal year preceding the fiscal year
referred to in subparagraph (A) on workers and employers
in communities impacted by trade.
‘‘SEC. 279B. AUTHORIZATION OF APPROPRIATIONS.
19 USC 2373a.
‘‘(a) IN GENERAL.—There are authorized to be appropriated
to the Secretary of Labor $40,000,000 for each of the fiscal years
2009 and 2010, and $10,000,000 for the period beginning October
1, 2010, and ending December 31, 2010, to carry out the Sector
Partnership Grant program under section 279A. Funds appropriated
pursuant to this section shall remain available until expended.
‘‘(b) SUPPLEMENT NOT SUPPLANT.—Funds appropriated pursuant to this section shall be used to supplement and not supplant
other Federal, State, and local public funds expended to support
the economic development of local communities.
‘‘(c) ADMINISTRATIVE COSTS.—The Secretary may retain not
more than 5 percent of the funds appropriated pursuant to this
section for each fiscal year to administer the Sector Partnership
Grant program under section 279A.
Time period.
‘‘Subchapter D—General Provisions
‘‘SEC. 279C. RULE OF CONSTRUCTION.
19 USC 2374.
‘‘Nothing in this chapter prevents a worker from receiving
trade adjustment assistance under chapter 2 of this title at the
same time the worker is receiving assistance in any manner from—
‘‘(1) a community receiving a community grant under subchapter A;
‘‘(2) an eligible institution receiving a Community College
and Career Training Grant under subchapter B; or
‘‘(3) an eligible partnership receiving a Sector Partnership
Grant under subchapter C.’’.
SEC. 1873. CONFORMING AMENDMENTS.
(a) TABLE OF CONTENTS.—The table of contents of the Trade
Act of 1974 is amended by striking the items relating to chapter
4 of title II and inserting the following:
‘‘CHAPTER 4—TRADE ADJUSTMENT ASSISTANCE
FOR
COMMUNITIES
‘‘Subchapter A—Trade Adjustment Assistance for Communities
‘‘Sec.
‘‘Sec.
‘‘Sec.
‘‘Sec.
‘‘Sec.
‘‘Sec.
‘‘Sec.
271.
272.
273.
274.
275.
276.
277.
Definitions.
Establishment of trade adjustment assistance for communities program.
Eligibility; notification.
Technical assistance.
Grants for eligible communities.
Strategic plans.
General provisions.
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‘‘Subchapter B—Community College and Career Training Grant Program
‘‘Sec. 278. Community college and career training grant program.
‘‘Sec. 279. Authorization of appropriations.
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PUBLIC LAW 111–5—FEB. 17, 2009
‘‘Subchapter C—Industry or Sector Partnership Grant Program for Communities
Impacted by Trade
‘‘Sec. 279A. Industry or sector partnership grant program for communities impacted by trade.
‘‘Sec. 279B. Authorization of appropriations.
‘‘Subchapter D—General Provisions
‘‘Sec. 279C. Rule of construction.’’
(b) JUDICIAL REVIEW.—
(1) Section 284(a) of the Trade Act of 1974 (19 U.S.C.
2395(a)) is amended—
(A) by inserting ‘‘or 296’’ after ‘‘section 293’’;
(B) by striking ‘‘or any other interested domestic party’’
and inserting ‘‘or authorized representative of a community’’; and
(C) by striking ‘‘section 271’’ and inserting ‘‘section
273’’.
(2) Section 1581(d) of title 28, United States Code, is
amended—
(A) in paragraph (2), by striking ‘‘; and’’ and inserting
a semicolon;
(B) in paragraph (3)—
(i) by striking ‘‘271’’ and inserting ‘‘273’’; and
(ii) by striking the period and inserting ‘‘; and’’;
and
(C) by adding at the end the following:
‘‘(4) any final determination of the Secretary of Agriculture
under section 293 or 296 of the Trade Act of 1974 (19 U.S.C.
2401b) with respect to the eligibility of a group of agricultural
commodity producers for adjustment assistance under such
Act.’’.
PART IV—TRADE ADJUSTMENT ASSISTANCE
FOR FARMERS
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SEC. 1881. DEFINITIONS.
Section 291 of the Trade Act of 1974 (19 U.S.C. 2401) is
amended—
(1) by amending paragraph (1) to read as follows:
‘‘(1) AGRICULTURAL COMMODITY.—The term ‘agricultural
commodity’ includes—
‘‘(A) any agricultural commodity (including livestock)
in its raw or natural state;
‘‘(B) any class of goods within an agricultural commodity; and
‘‘(C) in the case of an agricultural commodity producer
described in paragraph (2)(B), wild-caught aquatic species.’’;
(2) by amending paragraph (2) to read as follows:
‘‘(2) AGRICULTURAL COMMODITY PRODUCER.—The term ‘agricultural commodity producer’ means—
‘‘(A) a person that shares in the risk of producing
an agricultural commodity and that is entitled to a share
of the commodity for marketing, including an operator,
a sharecropper, or a person that owns or rents the land
on which the commodity is produced; or
‘‘(B) a person that reports gain or loss from the trade
or business of fishing on the person’s annual Federal
income tax return for the taxable year that most closely
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corresponds to the marketing year with respect to which
a petition is filed under section 292.’’; and
(3) by adding at the end the following:
‘‘(7) MARKETING YEAR.—The term ‘marketing year’ means—
‘‘(A) a marketing year designated by the Secretary
with respect to an agricultural commodity; or
‘‘(B) in the case of an agricultural commodity with
respect to which the Secretary does not designate a marketing year, a calendar year.’’.
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SEC. 1882. ELIGIBILITY.
(a) IN GENERAL.—Section 292 of the Trade Act of 1974 (19
U.S.C. 2401a) is amended by striking subsections (c) through (e)
and inserting the following:
‘‘(c) GROUP ELIGIBILITY REQUIREMENTS.—The Secretary shall
certify a group of agricultural commodity producers as eligible to
apply for adjustment assistance under this chapter if the Secretary
determines that—
‘‘(1)(A) the national average price of the agricultural commodity produced by the group during the most recent marketing
year for which data are available is less than 85 percent of
the average of the national average price for the commodity
in the 3 marketing years preceding such marketing year;
‘‘(B) the quantity of production of the agricultural commodity produced by the group during such marketing year
is less than 85 percent of the average of the quantity of production of the commodity produced by the group in the 3 marketing
years preceding such marketing year;
‘‘(C) the value of production of the agricultural commodity
produced by the group during such marketing year is less
than 85 percent of the average value of production of the
commodity produced by the group in the 3 marketing years
preceding such marketing year; or
‘‘(D) the cash receipts for the agricultural commodity produced by the group during such marketing year are less than
85 percent of the average of the cash receipts for the commodity
produced by the group in the 3 marketing years preceding
such marketing year;
‘‘(2) the volume of imports of articles like or directly
competitive with the agricultural commodity produced by the
group in the marketing year with respect to which the group
files the petition increased compared to the average volume
of such imports during the 3 marketing years preceding such
marketing year; and
‘‘(3) the increase in such imports contributed importantly
to the decrease in the national average price, quantity of
production, or value of production of, or cash receipts for, the
agricultural commodity, as described in paragraph (1).
‘‘(d) ELIGIBILITY OF CERTAIN OTHER PRODUCERS.—An agricultural commodity producer or group of producers that resides outside
of the State or region identified in the petition filed under subsection
(a) may file a request to become a party to that petition not
later than 15 days after the date the notice is published in the
Federal Register under subsection (a) with respect to that petition.
‘‘(e) TREATMENT OF CLASSES OF GOODS WITHIN A COMMODITY.—
In any case in which there are separate classes of goods within
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Certification.
Deadline.
Notice.
Federal Register,
publication.
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an agricultural commodity, the Secretary shall treat each class
as a separate commodity in determining under subsection (c)—
‘‘(1) group eligibility;
‘‘(2) the national average price, quantity of production,
or value of production, or cash receipts; and
‘‘(3) the volume of imports.’’.
(b) CONFORMING AMENDMENTS.—Section 293 of the Trade Act
of 1974 (19 U.S.C. 2401b) is amended—
(1) in subsection (a), by striking ‘‘section 292 (c) or (d),
as the case may be,’’ and inserting ‘‘section 292(c)’’; and
(2) in subsection (c), by striking ‘‘decline in price for’’ and
inserting ‘‘decrease in the national average price, quantity of
production, or value of production of, or cash receipts for,’’.
SEC. 1883. BENEFITS.
(a) IN GENERAL.—Section 296 of the Trade Act of 1974 (19
U.S.C. 2401e) is amended to read as follows:
‘‘SEC. 296. QUALIFYING REQUIREMENTS AND BENEFITS FOR AGRICULTURAL COMMODITY PRODUCERS.
‘‘(a) IN GENERAL.—
‘‘(1) REQUIREMENTS.—
‘‘(A) IN GENERAL.—Benefits under this chapter shall
be available to an agricultural commodity producer covered
by a certification under this chapter who files an application for such benefits not later than 90 days after the
date on which the Secretary makes a determination and
issues a certification of eligibility under section 293, if
the producer submits to the Secretary sufficient information to establish that—
‘‘(i) the producer produced the agricultural commodity covered by the application filed under this subsection in the marketing year with respect to which
the petition is filed and in at least 1 of the 3 marketing
years preceding that marketing year;
‘‘(ii)(I) the quantity of the agricultural commodity
that was produced by the producer in the marketing
year with respect to which the petition is filed has
decreased compared to the most recent marketing year
preceding that marketing year for which data are available; or
‘‘(II)(aa) the price received for the agricultural commodity by the producer during the marketing year
with respect to which the petition is filed has decreased
compared to the average price for the commodity
received by the producer in the 3 marketing years
preceding that marketing year; or
‘‘(bb) the county level price maintained by the Secretary for the agricultural commodity on the date on
which the petition is filed has decreased compared
to the average county level price for the commodity
in the 3 marketing years preceding the date on which
the petition is filed; and
‘‘(iii) the producer is not receiving—
‘‘(I) cash benefits under chapter 2 or 3; or
‘‘(II) benefits based on the production of an
agricultural commodity covered by another petition
filed under this chapter.
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‘‘(B) SPECIAL RULE WITH RESPECT TO CROPS NOT GROWN
EVERY YEAR.—For purposes of subparagraph (A)(ii)(II)(aa),
if a petition is filed with respect to an agricultural commodity that is not produced by the producer every year,
an agricultural commodity producer producing that commodity may establish the average price received for the
commodity by the producer in the 3 marketing years preceding the year with respect to which the petition is filed
by using average price data for the 3 most recent marketing
years in which the producer produced the commodity and
for which data are available.
‘‘(2) LIMITATIONS BASED ON ADJUSTED GROSS INCOME.—
‘‘(A) IN GENERAL.—Notwithstanding any other provision of this chapter, an agricultural commodity producer
shall not be eligible for assistance under this chapter in
any year in which the average adjusted gross income (as
defined in section 1001D(a) of the Food Security Act of
1985 (7 U.S.C. 1308–3a(a))) of the producer exceeds the
level set forth in subparagraph (A) or (B) of section
1001D(b)(1) of the Food Security Act of 1985 (7 U.S.C.
1308–3a(b)(1)), whichever is applicable.
‘‘(B) DEMONSTRATION OF COMPLIANCE.—An agricultural
commodity producer shall provide to the Secretary such
information as the Secretary determines necessary to demonstrate that the producer is in compliance with the limitation under subparagraph (A).
‘‘(C) COUNTER-CYCLICAL AND ACRE PAYMENTS.—The
total amount of payments made to an agricultural commodity producer under this chapter during any crop year
may not exceed the limitations on payments set forth in
subsections (b)(2), (b)(3), (c)(2), and (c)(3) of section 1001
of the Food Security Act of 1985 (7 U.S.C. 1308).
‘‘(b) TECHNICAL ASSISTANCE.—
‘‘(1) INITIAL TECHNICAL ASSISTANCE.—
‘‘(A) IN GENERAL.—An agricultural commodity producer
that files an application and meets the requirements under
subsection (a)(1) shall be entitled to receive initial technical
assistance designed to improve the competitiveness of the
production and marketing of the agricultural commodity
with respect to which the producer was certified under
this chapter. Such assistance shall include information
regarding—
‘‘(i) improving the yield and marketing of that
agricultural commodity; and
‘‘(ii) the feasibility and desirability of substituting
one or more alternative agricultural commodities for
that agricultural commodity.
‘‘(B) TRANSPORTATION AND SUBSISTENCE EXPENSES.—
‘‘(i) IN GENERAL.—The Secretary may authorize
supplemental assistance necessary to defray reasonable
transportation and subsistence expenses incurred by
an agricultural commodity producer in connection with
initial technical assistance under subparagraph (A) if
such assistance is provided at facilities that are not
within normal commuting distance of the regular place
of residence of the producer.
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PUBLIC LAW 111–5—FEB. 17, 2009
‘‘(ii) EXCEPTIONS.—The Secretary may not
authorize payments to an agricultural commodity producer under clause (i)—
‘‘(I) for subsistence expenses that exceed the
lesser of—
‘‘(aa) the actual per diem expenses for
subsistence incurred by the producer; or
‘‘(bb) the prevailing per diem allowance
rate authorized under Federal travel regulations; or
‘‘(II) for travel expenses that exceed the prevailing mileage rate authorized under the Federal
travel regulations.
‘‘(2) INTENSIVE TECHNICAL ASSISTANCE.—A producer that
has completed initial technical assistance under paragraph (1)
shall be eligible to participate in intensive technical assistance.
Such assistance shall consist of—
‘‘(A) a series of courses to further assist the producer
in improving the competitiveness of the producer in producing—
‘‘(i) the agricultural commodity with respect to
which the producer was certified under this chapter;
or
‘‘(ii) another agricultural commodity; and
‘‘(B) assistance in developing an initial business plan
based on the courses completed under subparagraph (A).
‘‘(3) INITIAL BUSINESS PLAN.—
‘‘(A) APPROVAL BY SECRETARY.—The Secretary shall
approve an initial business plan developed under paragraph
(2)(B) if the plan—
‘‘(i) reflects the skills gained by the producer
through the courses described in paragraph (2)(A); and
‘‘(ii) demonstrates how the producer will apply
those skills to the circumstances of the producer.
‘‘(B) FINANCIAL ASSISTANCE FOR IMPLEMENTING INITIAL
BUSINESS PLAN.—Upon approval of the producer’s initial
business plan by the Secretary under subparagraph (A),
a producer shall be entitled to an amount not to exceed
$4,000 to—
‘‘(i) implement the initial business plan; or
‘‘(ii) develop a long-term business adjustment plan
under paragraph (4).
‘‘(4) LONG-TERM BUSINESS ADJUSTMENT PLAN.—
‘‘(A) IN GENERAL.—A producer that has completed
intensive technical assistance under paragraph (2) and
whose initial business plan has been approved under paragraph (3)(A) shall be eligible for, in addition to the amount
under subparagraph (C), assistance in developing a longterm business adjustment plan.
‘‘(B) APPROVAL OF LONG-TERM BUSINESS ADJUSTMENT
PLANS.—The Secretary shall approve a long-term business
adjustment plan developed under subparagraph (A) if the
Secretary determines that the plan—
‘‘(i) includes steps reasonably calculated to materially contribute to the economic adjustment of the producer to changing market conditions;
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‘‘(ii) takes into consideration the interests of the
workers employed by the producer; and
‘‘(iii) demonstrates that the producer will have
sufficient resources to implement the business plan.
‘‘(C) PLAN IMPLEMENTATION.—Upon approval of the
producer’s long-term business adjustment plan under
subparagraph (B), a producer shall be entitled to an amount
not to exceed $8,000 to implement the long-term business
adjustment plan.
‘‘(c) MAXIMUM AMOUNT OF ASSISTANCE.—An agricultural commodity producer may receive not more than $12,000 under paragraphs (3) and (4) of subsection (b) in the 36-month period following
certification under section 293.
‘‘(d) LIMITATIONS ON OTHER ASSISTANCE.—An agricultural commodity producer that receives benefits under this chapter (other
than initial technical assistance under subsection (b)(1)) shall not
be eligible for cash benefits under chapter 2 or 3.’’.
(b) CLERICAL AMENDMENT.—The table of contents of the Trade
Act of 1974 is amended by striking the item relating to section
296 and inserting the following:
‘‘Sec. 296. Qualifying requirements and benefits for agricultural commodity producers.’’.
SEC. 1884. REPORT.
Section 293 of the Trade Act of 1974 (19 U.S.C. 2401b) is
amended by adding at the end the following:
‘‘(d) REPORT BY THE SECRETARY.—Not later than January 30,
2010, and annually thereafter, the Secretary of Agriculture shall
submit to the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives a
report containing the following information with respect to adjustment assistance provided under this chapter during the preceding
fiscal year:
‘‘(1) A list of the agricultural commodities covered by a
certification under this chapter.
‘‘(2) The States or regions in which such commodities are
produced and the aggregate amount of such commodities produced in each such State or region.
‘‘(3) The total number of agricultural commodity producers,
by congressional district, receiving benefits under this chapter.
‘‘(4) The total number of agricultural commodity producers,
by congressional district, receiving technical assistance under
this chapter.’’.
SEC. 1885. FRAUD AND RECOVERY OF OVERPAYMENTS.
Section 297(a)(1) of the Trade Act of 1974 (19 U.S.C. 2401f(a)(1))
is amended by inserting ‘‘or has expended funds received under
this chapter for a purpose that was not approved by the Secretary,’’
after ‘‘entitled,’’.
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SEC. 1886. DETERMINATION OF INCREASES OF IMPORTS FOR CERTAIN
FISHERMEN.
19 USC 2271
note.
For purposes of chapters 2 and 6 of title II of the Trade
Act of 1974 (19 U.S.C. 2251 et seq.), in the case of an agricultural
commodity producer that—
(1) is a fisherman or aquaculture producer, and
(2) is otherwise eligible for adjustment assistance under
chapter 2 or 6, as the case may be,
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the increase in imports of articles like or directly competitive with
the agricultural commodity produced by such producer may be
based on imports of wild-caught seafood, farm-raised seafood, or
both.
SEC. 1887. EXTENSION OF TRADE ADJUSTMENT ASSISTANCE FOR
FARMERS.
Section 298(a) of the Trade Act of 1974 (19 U.S.C. 2401g(a))
is amended by striking ‘‘fiscal years 2003 through 2007’’ and all
that follows through the end period and inserting ‘‘fiscal years
2009 and 2010, and $22,500,000 for the period beginning October
1, 2010, and ending December 31, 2010, to carry out the purposes
of this chapter, including administrative costs, and salaries and
expenses of employees of the Department of Agriculture.’’.
PART V—GENERAL PROVISIONS
19 USC 2271
note.
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SEC. 1891. EFFECTIVE DATE.
(a) IN GENERAL.—Except as otherwise provided in this subtitle,
and subsection (b) of this section, this subtitle and the amendments
made by this subtitle—
(1) shall take effect upon the expiration of the 90-day
period beginning on the date of the enactment of this Act;
and
(2) shall apply to—
(A) petitions for certification filed under chapter 2,
3, or 6 of title II of the Trade Act of 1974 on or after
the effective date described in paragraph (1); and
(B) petitions for assistance and proposals for grants
filed under chapter 4 of title II of the Trade Act of 1974
on or after such effective date.
(b) CERTIFICATIONS MADE BEFORE EFFECTIVE DATE.—Notwithstanding subsection (a)—
(1) a worker shall continue to receive (or be eligible to
receive) trade adjustment assistance and other benefits under
subchapter B of chapter 2 of title II of the Trade Act of 1974,
as in effect on the day before the effective date described
in subsection (a)(1), for any week for which the worker meets
the eligibility requirements of such chapter 2 as in effect on
the day before such effective date, if the worker—
(A) is certified as eligible for trade adjustment assistance benefits under such chapter 2 pursuant to a petition
filed under section 221 of the Trade Act of 1974 on or
before such effective date; and
(B) would otherwise be eligible to receive trade adjustment assistance benefits under such chapter as in effect
on the day before such effective date;
(2) a worker shall continue to receive (or be eligible to
receive) benefits under section 246(a)(2) of the Trade Act of
1974, as in effect on the day before the effective date described
in subsection (a)(1), for such period for which the worker meets
the eligibility requirements of section 246 of that Act as in
effect on the day before such effective date, if the worker—
(A) is certified as eligible for benefits under such section 246 pursuant to a petition filed under section 221
of the Trade Act of 1974 on or before such effective date;
and
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(B) would otherwise be eligible to receive benefits under
such section 246(a)(2) as in effect on the day before such
effective date; and
(3) a firm shall continue to receive (or be eligible to receive)
adjustment assistance under chapter 3 of title II of the Trade
Act of 1974, as in effect on the day before the effective date
described in subsection (a)(1), for such period for which the
firm meets the eligibility requirements of such chapter 3 as
in effect on the day before such effective date, if the firm—
(A) is certified as eligible for benefits under such
chapter 3 pursuant to a petition filed under section 251
of the Trade Act of 1974 on or before such effective date;
and
(B) would otherwise be eligible to receive benefits under
such chapter 3 as in effect on the day before such effective
date.
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SEC. 1892. EXTENSION OF TRADE ADJUSTMENT ASSISTANCE PROGRAMS.
(a) FOR WORKERS.—Section 245(a) of the Trade Act of 1974
(19 U.S.C. 2317(a)) is amended by striking ‘‘December 31, 2007’’
and inserting ‘‘December 31, 2010’’.
(b) TERMINATION.—Section 285 of the Trade Act of 1974 (19
U.S.C. 2271 note prec.) is amended—
(1) in subsection (a), by striking ‘‘December 31, 2007’’ each
place it appears and inserting ‘‘December 31, 2010’’; and
(2) by amending subsection (b) to read as follows:
‘‘(b) OTHER ASSISTANCE.—
‘‘(1) ASSISTANCE FOR FIRMS.—
‘‘(A) IN GENERAL.—Except as provided in subparagraph
(B), technical assistance and grants may not be provided
under chapter 3 after December 31, 2010.
‘‘(B) EXCEPTION.—Notwithstanding subparagraph (A),
any technical assistance or grant approved under chapter
3 on or before December 31, 2010, may be provided—
‘‘(i) to the extent funds are available pursuant
to such chapter for such purpose; and
‘‘(ii) to the extent the recipient of the technical
assistance or grant is otherwise eligible to receive such
technical assistance or grant, as the case may be.
‘‘(2) FARMERS.—
‘‘(A) IN GENERAL.—Except as provided in subparagraph
(B), technical assistance and financial assistance may not
be provided under chapter 6 after December 31, 2010.
‘‘(B) EXCEPTION.—Notwithstanding subparagraph (A),
any technical or financial assistance approved under
chapter 6 on or before December 31, 2010, may be provided—
‘‘(i) to the extent funds are available pursuant
to such chapter for such purpose; and
‘‘(ii) to the extent the recipient of the technical
or financial assistance is otherwise eligible to receive
such technical or financial assistance, as the case may
be.
‘‘(3) ASSISTANCE FOR COMMUNITIES.—
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‘‘(A) IN GENERAL.—Except as provided in subparagraph
(B), technical assistance and grants may not be provided
under chapter 4 after December 31, 2010.
‘‘(B) EXCEPTION.—Notwithstanding subparagraph (A),
any technical assistance or grant approved under chapter
4 on or before December 31, 2010, may be provided—
‘‘(i) to the extent funds are available pursuant
to such chapter for such purpose; and
‘‘(ii) to the extent the recipient of the technical
assistance or grant is otherwise eligible to receive such
technical assistance or grant, as the case may be.’’.
SEC. 1893. TERMINATION; RELATED PROVISIONS.
19 USC 2271
note prec.
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Effective date.
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(a) SUNSET.—
(1) IN GENERAL.—Subject to paragraph (2), the amendments
made by this subtitle to chapters 2, 3, 4, 5, and 6 of title
II of the Trade Act of 1974 (19 U.S.C. 2271 et seq.) shall
not apply on or after January 1, 2011.
(2) EXCEPTION.—The amendments made by this subtitle
to section 285 of the Trade Act of 1974 shall continue to
apply on and after January 1, 2011, with respect to—
(A) workers certified as eligible for trade adjustment
assistance benefits under chapter 2 of title II of that Act
pursuant to petitions filed under section 221 of that Act
before January 1, 2011;
(B) firms certified as eligible for technical assistance
or grants under chapter 3 of title II of that Act pursuant
to petitions filed under section 251 of that Act before
January 1, 2011;
(C) recipients approved for technical assistance or
grants under chapter 4 of title II of that Act pursuant
to petitions for assistance or proposals for grants (as the
case may be) filed pursuant to such chapter before January
1, 2011; and
(D) agricultural commodity producers certified as
eligible for technical or financial assistance under chapter
6 of title II of that Act pursuant to petitions filed under
section 292 of that Act before January 1, 2011.
(b) APPLICATION OF PRIOR LAW.—Chapters 2, 3, 4, 5, and 6
of title II of the Trade Act of 1974 (19 U.S.C. 2271 et seq.) shall
be applied and administered beginning January 1, 2011, as if the
amendments made by this subtitle (other than part VI) had never
been enacted, except that in applying and administering such chapters—
(1) section 245 of that Act shall be applied and administered
by substituting ‘‘2011’’ for ‘‘2007’’;
(2) section 246(b) of that Act shall be applied and administered by substituting ‘‘December 31, 2011’’ for ‘‘the date that
is 5 years’’ and all that follows through ‘‘State’’;
(3) section 256(b) of that Act shall be applied and administered by substituting ‘‘the 1-year period beginning January
1, 2011’’ for ‘‘each of fiscal years 2003 through 2007, and
$4,000,000 for the 3-month period beginning October 1, 2007’’;
(4) section 298(a) of that Act shall be applied and administered by substituting ‘‘the 1-year period beginning January
1, 2011’’ for ‘‘each of the fiscal years’’ and all that follows
through ‘‘October 1, 2007’’; and
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(5) subject to subsection (a)(2), section 285 of that Act
shall be applied and administered—
(A) in subsection (a), by substituting ‘‘2011’’ for ‘‘2007’’
each place it appears; and
(B) by applying and administering subsection (b) as
if it read as follows:
‘‘(b) OTHER ASSISTANCE.—
‘‘(1) ASSISTANCE FOR FIRMS.—
‘‘(A) IN GENERAL.—Except as provided in subparagraph
(B), assistance may not be provided under chapter 3 after
December 31, 2011.
‘‘(B) EXCEPTION.—Notwithstanding subparagraph (A),
any assistance approved under chapter 3 on or before
December 31, 2011, may be provided—
‘‘(i) to the extent funds are available pursuant
to such chapter for such purpose; and
‘‘(ii) to the extent the recipient of the assistance
is otherwise eligible to receive such assistance.
‘‘(2) FARMERS.—
‘‘(A) IN GENERAL.—Except as provided in subparagraph
(B), assistance may not be provided under chapter 6 after
December 31, 2011.
‘‘(B) EXCEPTION.—Notwithstanding subparagraph (A),
any assistance approved under chapter 6 on or before
December 31, 2011, may be provided—
‘‘(i) to the extent funds are available pursuant
to such chapter for such purpose; and
‘‘(ii) to the extent the recipient of the assistance
is otherwise eligible to receive such assistance.’’.
SEC. 1894. GOVERNMENT ACCOUNTABILITY OFFICE REPORT.
Not later than September 30, 2012, the Comptroller General
of the United States shall prepare and submit to the Committee
on Finance of the Senate and the Committee on Ways and Means
of the House of Representatives a comprehensive report on the
operation and effectiveness of the amendments made by this subtitle
to chapters 2, 3, 4, and 6 of the Trade Act of 1974.
SEC. 1895. EMERGENCY DESIGNATION.
Amounts appropriated pursuant to this subtitle are designated
as an emergency requirement and necessary to meet emergency
needs pursuant to section 204(a) of S. Con. Res. 21 (110th Congress)
and section 301(b)(2) of S. Con. Res. 70 (110th Congress), the
concurrent resolutions on the budget for fiscal years 2008 and
2009.
PART VI—HEALTH COVERAGE IMPROVEMENT
SEC. 1899. SHORT TITLE.
This part may be cited as the ‘‘TAA Health Coverage Improvement Act of 2009’’.
TAA Health
Coverage
Improvement Act
of 2009.
26 USC 1 note.
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SEC. 1899A. IMPROVEMENT OF THE AFFORDABILITY OF THE CREDIT.
(a) IMPROVEMENT OF AFFORDABILITY.—
(1) IN GENERAL.—Section 35(a) of the Internal Revenue
Code of 1986 (relating to credit for health insurance costs
of eligible individuals) is amended by inserting ‘‘(80 percent
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26 USC 35.
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26 USC 7527.
26 USC 35 note.
PUBLIC LAW 111–5—FEB. 17, 2009
in the case of eligible coverage months beginning before
January 1, 2011)’’ after ‘‘65 percent’’.
(2) CONFORMING AMENDMENT.—Section 7527(b) of such
Code (relating to advance payment of credit for health insurance
costs of eligible individuals) is amended by inserting ‘‘(80 percent in the case of eligible coverage months beginning before
January 1, 2011)’’ after ‘‘65 percent’’.
(b) EFFECTIVE DATE.—The amendments made by this section
shall apply to coverage months beginning on or after the first
day of the first month beginning 60 days after the date of the
enactment of this Act.
SEC. 1899B. PAYMENT FOR MONTHLY PREMIUMS PAID PRIOR TO
COMMENCEMENT OF ADVANCE PAYMENTS OF CREDIT.
(a) PAYMENT FOR PREMIUMS DUE PRIOR TO COMMENCEMENT
ADVANCE PAYMENTS OF CREDIT.—Section 7527 of the Internal
Revenue Code of 1986 (relating to advance payment of credit for
health insurance costs of eligible individuals) is amended by adding
at the end the following new subsection:
‘‘(e) PAYMENT FOR PREMIUMS DUE PRIOR TO COMMENCEMENT
OF ADVANCE PAYMENTS.—In the case of eligible coverage months
beginning before January 1, 2011—
‘‘(1) IN GENERAL.—The program established under subsection (a) shall provide that the Secretary shall make 1 or
more retroactive payments on behalf of a certified individual
in an aggregate amount equal to 80 percent of the premiums
for coverage of the taxpayer and qualifying family members
under qualified health insurance for eligible coverage months
(as defined in section 35(b)) occurring prior to the first month
for which an advance payment is made on behalf of such
individual under subsection (a).
‘‘(2) REDUCTION OF PAYMENT FOR AMOUNTS RECEIVED UNDER
NATIONAL EMERGENCY GRANTS.—The amount of any payment
determined under paragraph (1) shall be reduced by the amount
of any payment made to the taxpayer for the purchase of
qualified health insurance under a national emergency grant
pursuant to section 173(f) of the Workforce Investment Act
of 1998 for a taxable year including the eligible coverage months
described in paragraph (1).’’.
(b) EFFECTIVE DATE.—The amendments made by this section
shall apply to coverage months beginning after December 31, 2008.
(c) TRANSITIONAL RULE.—The Secretary of the Treasury shall
not be required to make any payments under section 7527(e) of
the Internal Revenue Code of 1986, as added by this section, until
after the date that is 6 months after the date of the enactment
of this Act.
OF
26 USC 7527
note.
26 USC 7527
note.
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SEC. 1899C. TAA RECIPIENTS NOT ENROLLED IN TRAINING PROGRAMS
ELIGIBLE FOR CREDIT.
(a) IN GENERAL.—Paragraph (2) of section 35(c) of the Internal
Revenue Code of 1986 (defining eligible TAA recipient) is amended
to read as follows:
‘‘(2) ELIGIBLE TAA RECIPIENT.—
‘‘(A) IN GENERAL.—Except as provided in subparagraph
(B), the term ‘eligible TAA recipient’ means, with respect
to any month, any individual who is receiving for any
day of such month a trade readjustment allowance under
chapter 2 of title II of the Trade Act of 1974 or who
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would be eligible to receive such allowance if section 231
of such Act were applied without regard to subsection
(a)(3)(B) of such section. An individual shall continue to
be treated as an eligible TAA recipient during the first
month that such individual would otherwise cease to be
an eligible TAA recipient by reason of the preceding sentence.
‘‘(B) SPECIAL RULE.—In the case of any eligible coverage
month beginning after the date of the enactment of this
paragraph and before January 1, 2011, the term ‘eligible
TAA recipient’ means, with respect to any month, any
individual who—
‘‘(i) is receiving for any day of such month a trade
readjustment allowance under chapter 2 of title II of
the Trade Act of 1974,
‘‘(ii) would be eligible to receive such allowance
except that such individual is in a break in training
provided under a training program approved under
section 236 of such Act that exceeds the period specified
in section 233(e) of such Act, but is within the period
for receiving such allowances provided under section
233(a) of such Act, or
‘‘(iii) is receiving unemployment compensation (as
defined in section 85(b)) for any day of such month
and who would be eligible to receive such allowance
for such month if section 231 of such Act were applied
without regard to subsections (a)(3)(B) and (a)(5)
thereof.
An individual shall continue to be treated as an eligible
TAA recipient during the first month that such individual
would otherwise cease to be an eligible TAA recipient by
reason of the preceding sentence.’’.
(b) EFFECTIVE DATE.—The amendment made by this section
shall apply to coverage months beginning after the date of the
enactment of this Act.
26 USC 35 note.
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SEC. 1899D. TAA PRE-CERTIFICATION PERIOD RULE FOR PURPOSES
OF DETERMINING WHETHER THERE IS A 63-DAY LAPSE
IN CREDITABLE COVERAGE.
(a) IRC AMENDMENT.—Section 9801(c)(2) of the Internal Revenue Code of 1986 (relating to not counting periods before significant breaks in creditable coverage) is amended by adding at the
end the following new subparagraph:
‘‘(D) TAA-ELIGIBLE INDIVIDUALS.—In the case of plan
years beginning before January 1, 2011—
‘‘(i) TAA PRE-CERTIFICATION PERIOD RULE.—In the
case of a TAA-eligible individual, the period beginning
on the date the individual has a TAA-related loss of
coverage and ending on the date which is 7 days after
the date of the issuance by the Secretary (or by any
person or entity designated by the Secretary) of a
qualified health insurance costs credit eligibility certificate for such individual for purposes of section 7527
shall not be taken into account in determining the
continuous period under subparagraph (A).
‘‘(ii) DEFINITIONS.—The terms ‘TAA-eligible individual’ and ‘TAA-related loss of coverage’ have the
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26 USC 9801
note.
PUBLIC LAW 111–5—FEB. 17, 2009
meanings
given
such
terms
in
section
4980B(f)(5)(C)(iv).’’.
(b) ERISA AMENDMENT.—Section 701(c)(2) of the Employee
Retirement Income Security Act of 1974 (29 U.S.C. 1181(c)(2)) is
amended by adding at the end the following new subparagraph:
‘‘(C) TAA-ELIGIBLE INDIVIDUALS.—In the case of plan
years beginning before January 1, 2011—
‘‘(i) TAA PRE-CERTIFICATION PERIOD RULE.—In the
case of a TAA-eligible individual, the period beginning
on the date the individual has a TAA-related loss of
coverage and ending on the date that is 7 days after
the date of the issuance by the Secretary (or by any
person or entity designated by the Secretary) of a
qualified health insurance costs credit eligibility certificate for such individual for purposes of section 7527
of the Internal Revenue Code of 1986 shall not be
taken into account in determining the continuous
period under subparagraph (A).
‘‘(ii) DEFINITIONS.—The terms ‘TAA-eligible individual’ and ‘TAA-related loss of coverage’ have the
meanings given such terms in section 605(b)(4).’’.
(c) PHSA AMENDMENT.—Section 2701(c)(2) of the Public Health
Service Act (42 U.S.C. 300gg(c)(2)) is amended by adding at the
end the following new subparagraph:
‘‘(C) TAA-ELIGIBLE INDIVIDUALS.—In the case of plan
years beginning before January 1, 2011—
‘‘(i) TAA PRE-CERTIFICATION PERIOD RULE.—In the
case of a TAA-eligible individual, the period beginning
on the date the individual has a TAA-related loss of
coverage and ending on the date that is 7 days after
the date of the issuance by the Secretary (or by any
person or entity designated by the Secretary) of a
qualified health insurance costs credit eligibility certificate for such individual for purposes of section 7527
of the Internal Revenue Code of 1986 shall not be
taken into account in determining the continuous
period under subparagraph (A).
‘‘(ii) DEFINITIONS.—The terms ‘TAA-eligible individual’ and ‘TAA-related loss of coverage’ have the
meanings given such terms in section 2205(b)(4).’’.
(d) EFFECTIVE DATE.—The amendments made by this section
shall apply to plan years beginning after the date of the enactment
of this Act.
SEC. 1899E. CONTINUED QUALIFICATION OF FAMILY MEMBERS AFTER
CERTAIN EVENTS.
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26 USC 35.
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(a) IN GENERAL.—Subsection (g) of section 35 of such Code
is amended by redesignating paragraph (9) as paragraph (10) and
inserting after paragraph (8) the following new paragraph:
‘‘(9) CONTINUED QUALIFICATION OF FAMILY MEMBERS AFTER
CERTAIN EVENTS.—In the case of eligible coverage months beginning before January 1, 2011—
‘‘(A) MEDICARE ELIGIBILITY.—In the case of any month
which would be an eligible coverage month with respect
to an eligible individual but for subsection (f)(2)(A), such
month shall be treated as an eligible coverage month with
respect to such eligible individual solely for purposes of
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123 STAT. 427
determining the amount of the credit under this section
with respect to any qualifying family members of such
individual (and any advance payment of such credit under
section 7527). This subparagraph shall only apply with
respect to the first 24 months after such eligible individual
is first entitled to the benefits described in subsection
(f)(2)(A).
‘‘(B) DIVORCE.—In the case of the finalization of a
divorce between an eligible individual and such individual’s
spouse, such spouse shall be treated as an eligible individual for purposes of this section and section 7527 for
a period of 24 months beginning with the date of such
finalization, except that the only qualifying family members
who may be taken into account with respect to such spouse
are those individuals who were qualifying family members
immediately before such finalization.
‘‘(C) DEATH.—In the case of the death of an eligible
individual—
‘‘(i) any spouse of such individual (determined at
the time of such death) shall be treated as an eligible
individual for purposes of this section and section 7527
for a period of 24 months beginning with the date
of such death, except that the only qualifying family
members who may be taken into account with respect
to such spouse are those individuals who were qualifying family members immediately before such death,
and
‘‘(ii) any individual who was a qualifying family
member of the decedent immediately before such death
(or, in the case of an individual to whom paragraph
(4) applies, the taxpayer to whom the deduction under
section 151 is allowable) shall be treated as an eligible
individual for purposes of this section and section 7527
for a period of 24 months beginning with the date
of such death, except that in determining the amount
of such credit only such qualifying family member may
be taken into account.’’.
(b) CONFORMING AMENDMENT.—Section 173(f) of the Workforce
Investment Act of 1998 (29 U.S.C. 2918(f)) is amended by adding
at the end the following:
‘‘(8) CONTINUED QUALIFICATION OF FAMILY MEMBERS AFTER
CERTAIN EVENTS.—In the case of eligible coverage months beginning before January 1, 2011—
‘‘(A) MEDICARE ELIGIBILITY.—In the case of any month
which would be an eligible coverage month with respect
to an eligible individual but for paragraph (7)(B)(i), such
month shall be treated as an eligible coverage month with
respect to such eligible individual solely for purposes of
determining the eligibility of qualifying family members
of such individual under this subsection. This subparagraph
shall only apply with respect to the first 24 months after
such eligible individual is first entitled to the benefits
described in paragraph (7)(B)(i).
‘‘(B) DIVORCE.—In the case of the finalization of a
divorce between an eligible individual and such individual’s
spouse, such spouse shall be treated as an eligible individual for purposes of this subsection for a period of 24
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26 USC 35 note.
PUBLIC LAW 111–5—FEB. 17, 2009
months beginning with the date of such finalization, except
that the only qualifying family members who may be taken
into account with respect to such spouse are those individuals who were qualifying family members immediately
before such finalization.
‘‘(C) DEATH.—In the case of the death of an eligible
individual—
‘‘(i) any spouse of such individual (determined at
the time of such death) shall be treated as an eligible
individual for purposes of this subsection for a period
of 24 months beginning with the date of such death,
except that the only qualifying family members who
may be taken into account with respect to such spouse
are those individuals who were qualifying family members immediately before such death, and
‘‘(ii) any individual who was a qualifying family
member of the decedent immediately before such death
shall be treated as an eligible individual for purposes
this subsection for a period of 24 months beginning
with the date of such death, except that no qualifying
family members may be taken into account with
respect to such individual.’’.
(c) EFFECTIVE DATE.—The amendments made by this section
shall apply to months beginning after December 31, 2009.
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SEC. 1899F. EXTENSION OF COBRA BENEFITS FOR CERTAIN TAAELIGIBLE INDIVIDUALS AND PBGC RECIPIENTS.
(a) ERISA AMENDMENTS.—Section 602(2)(A) of the Employee
Retirement Income Security Act of 1974 (29 U.S.C. 1162(2)(A))
is amended—
(1) by moving clause (v) to after clause (iv) and before
the flush left sentence beginning with ‘‘In the case of a qualified
beneficiary’’;
(2) by striking ‘‘In the case of a qualified beneficiary’’ and
inserting the following:
‘‘(vi) SPECIAL RULE FOR DISABILITY.—In the case
of a qualified beneficiary’’; and
(3) by redesignating clauses (v) and (vi), as amended by
paragraphs (1) and (2), as clauses (vii) and (viii), respectively,
and by inserting after clause (iv) the following new clauses:
‘‘(v) SPECIAL RULE FOR PBGC RECIPIENTS.—In the
case of a qualifying event described in section 603(2)
with respect to a covered employee who (as of such
qualifying event) has a nonforfeitable right to a benefit
any portion of which is to be paid by the Pension
Benefit Guaranty Corporation under title IV, notwithstanding clause (i) or (ii), the date of the death of
the covered employee, or in the case of the surviving
spouse or dependent children of the covered employee,
24 months after the date of the death of the covered
employee. The preceding sentence shall not require
any period of coverage to extend beyond December
31, 2010.
‘‘(vi) SPECIAL RULE FOR TAA-ELIGIBLE INDIVIDUALS.—In the case of a qualifying event described in
section 603(2) with respect to a covered employee who
is (as of the date that the period of coverage would,
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123 STAT. 429
but for this clause or clause (vii), otherwise terminate
under clause (i) or (ii)) a TAA-eligible individual (as
defined in section 605(b)(4)(B)), the period of coverage
shall not terminate by reason of clause (i) or (ii), as
the case may be, before the later of the date specified
in such clause or the date on which such individual
ceases to be such a TAA-eligible individual. The preceding sentence shall not require any period of coverage
to extend beyond December 31, 2010.’’.
(b) IRC AMENDMENTS.—Clause (i) of section 4980B(f)(2)(B) of
the Internal Revenue Code of 1986 is amended—
(1) by striking ‘‘In the case of a qualified beneficiary’’ and
inserting the following:
‘‘(VI) SPECIAL RULE FOR DISABILITY.—In the
case of a qualified beneficiary’’, and
(2) by redesignating subclauses (V) and (VI), as amended
by paragraph (1), as subclauses (VII) and (VIII), respectively,
and by inserting after clause (IV) the following new subclauses:
‘‘(V) SPECIAL RULE FOR PBGC RECIPIENTS.—In
the case of a qualifying event described in paragraph (3)(B) with respect to a covered employee
who (as of such qualifying event) has a nonforfeitable right to a benefit any portion of which is
to be paid by the Pension Benefit Guaranty Corporation under title IV of the Employee Retirement
Income Security Act of 1974, notwithstanding subclause (I) or (II), the date of the death of the
covered employee, or in the case of the surviving
spouse or dependent children of the covered
employee, 24 months after the date of the death
of the covered employee. The preceding sentence
shall not require any period of coverage to extend
beyond December 31, 2010.
‘‘(VI) SPECIAL RULE FOR TAA-ELIGIBLE INDIVIDUALS.—In the case of a qualifying event described
in paragraph (3)(B) with respect to a covered
employee who is (as of the date that the period
of coverage would, but for this subclause or subclause (VII), otherwise terminate under subclause
(I) or (II)) a TAA-eligible individual (as defined
in paragraph (5)(C)(iv)(II)), the period of coverage
shall not terminate by reason of subclause (I) or
(II), as the case may be, before the later of the
date specified in such subclause or the date on
which such individual ceases to be such a TAAeligible individual. The preceding sentence shall
not require any period of coverage to extend beyond
December 31, 2010.’’.
(c) PHSA AMENDMENTS.—Section 2202(2)(A) of the Public
Health Service Act (42 U.S.C. 300bb-2(2)(A)) is amended—
(1) by striking ‘‘In the case of a qualified beneficiary’’ and
inserting the following:
‘‘(v) SPECIAL RULE FOR DISABILITY.—In the case
of a qualified beneficiary’’; and
(2) by redesignating clauses (iv) and (v), as amended by
paragraph (1), as clauses (v) and (vi), respectively, and by
inserting after clause (iii) the following new clause:
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26 USC 4980B.
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PUBLIC LAW 111–5—FEB. 17, 2009
‘‘(iv) SPECIAL RULE FOR TAA-ELIGIBLE INDIVIDthe case of a qualifying event described in
section 2203(2) with respect to a covered employee
who is (as of the date that the period of coverage
would, but for this clause or clause (v), otherwise terminate under clause (i) or (ii)) a TAA-eligible individual
(as defined in section 2205(b)(4)(B)), the period of coverage shall not terminate by reason of clause (i) or
(ii), as the case may be, before the later of the date
specified in such clause or the date on which such
individual ceases to be such a TAA-eligible individual.
The preceding sentence shall not require any period
of coverage to extend beyond December 31, 2010.’’.
(d) EFFECTIVE DATE.—The amendments made by this section
shall apply to periods of coverage which would (without regard
to the amendments made by this section) end on or after the
date of the enactment of this Act.
UALS.—In
26 USC 4980B
note.
SEC.
26 USC 35.
26 USC 35 note.
1899G.
ADDITION OF COVERAGE THROUGH
EMPLOYEES’ BENEFICIARY ASSOCIATIONS.
VOLUNTARY
(a) IN GENERAL.—Paragraph (1) of section 35(e) of the Internal
Revenue Code of 1986 is amended by adding at the end the following
new subparagraph:
‘‘(K) In the case of eligible coverage months beginning
before January 1, 2011, coverage under an employee benefit
plan funded by a voluntary employees’ beneficiary association (as defined in section 501(c)(9)) established pursuant
to an order of a bankruptcy court, or by agreement with
an authorized representative, as provided in section 1114
of title 11, United States Code.’’.
(b) EFFECTIVE DATE.—The amendments made by this section
shall apply to coverage months beginning after the date of the
enactment of this Act.
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SEC. 1899H. NOTICE REQUIREMENTS.
(a) IN GENERAL.—Subsection (d) of section 7527 of the Internal
Revenue Code of 1986 (relating to qualified health insurance costs
credit eligibility certificate) is amended to read as follows:
‘‘(d) QUALIFIED HEALTH INSURANCE COSTS ELIGIBILITY CERTIFICATE.—
‘‘(1) IN GENERAL.—For purposes of this section, the term
‘qualified health insurance costs eligibility certificate’ means
any written statement that an individual is an eligible individual (as defined in section 35(c)) if such statement provides
such information as the Secretary may require for purposes
of this section and—
‘‘(A) in the case of an eligible TAA recipient (as defined
in section 35(c)(2)) or an eligible alternative TAA recipient
(as defined in section 35(c)(3)), is certified by the Secretary
of Labor (or by any other person or entity designated
by the Secretary), or
‘‘(B) in the case of an eligible PBGC pension recipient
(as defined in section 35(c)(4)), is certified by the Pension
Benefit Guaranty Corporation (or by any other person or
entity designated by the Secretary).
‘‘(2) INCLUSION OF CERTAIN INFORMATION.—In the case of
any statement described in paragraph (1) which is issued before
January 1, 2011, such statement shall not be treated as a
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123 STAT. 431
qualified health insurance costs credit eligibility certificate
unless such statement includes—
‘‘(A) the name, address, and telephone number of the
State office or offices responsible for providing the individual with assistance with enrollment in qualified health
insurance (as defined in section 35(e)),
‘‘(B) a list of the coverage options that are treated
as qualified health insurance (as so defined) by the State
in which the individual resides, and
‘‘(C) in the case of a TAA-eligible individual (as defined
in section 4980B(f)(5)(C)(iv)(II)), a statement informing the
individual that the individual has 63 days from the date
that is 7 days after the date of the issuance of such certificate to enroll in such insurance without a lapse in creditable coverage (as defined in section 9801(c)).’’.
(b) EFFECTIVE DATE.—The amendment made by this section
shall apply to certificates issued after the date that is 6 months
after the date of the enactment of this Act.
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SEC. 1899I. SURVEY AND REPORT ON ENHANCED HEALTH COVERAGE
TAX CREDIT PROGRAM.
26 USC 7527
note.
26 USC 35 note.
(a) SURVEY.—
(1) IN GENERAL.—The Secretary of the Treasury shall conduct a biennial survey of eligible individuals (as defined in
section 35(c) of the Internal Revenue Code of 1986) relating
to the health coverage tax credit under section 35 of the Internal
Revenue Code of 1986 (hereinafter in this section referred
to as the ‘‘health coverage tax credit’’).
(2) INFORMATION OBTAINED.—The survey conducted under
subsection (a) shall obtain the following information:
(A) HCTC PARTICIPANTS.—In the case of eligible
individuals receiving the health coverage tax credit
(including individuals participating in the health coverage
tax credit program under section 7527 of such Code, hereinafter in this section referred to as the ‘‘HCTC program’’)—
(i) demographic information of such individuals,
including income and education levels,
(ii) satisfaction of such individuals with the enrollment process in the HCTC program,
(iii) satisfaction of such individuals with available
health coverage options under the credit, including
level of premiums, benefits, deductibles, cost-sharing
requirements, and the adequacy of provider networks,
and
(iv) any other information that the Secretary determines is appropriate.
(B) NON-HCTC PARTICIPANTS.—In the case of eligible
individuals not receiving the health coverage tax credit—
(i) demographic information of each individual,
including income and education levels,
(ii) whether the individual was aware of the health
coverage tax credit or the HCTC program,
(iii) the reasons the individual has not enrolled
in the HCTC program, including whether such reasons
include the burden of the process of enrollment and
the affordability of coverage,
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123 STAT. 432
PUBLIC LAW 111–5—FEB. 17, 2009
(iv) whether the individual has health insurance
coverage, and, if so, the source of such coverage, and
(v) any other information that the Secretary determines is appropriate.
(3) REPORT.—Not later than December 31 of each year
in which a survey is conducted under paragraph (1) (beginning
in 2010), the Secretary of the Treasury shall report to the
Committee on Finance and the Committee on Health, Education, Labor, and Pensions of the Senate and the Committee
on Ways and Means, the Committee on Education and Labor,
and the Committee on Energy and Commerce of the House
of Representatives the findings of the most recent survey conducted under paragraph (1).
(b) REPORT.—Not later than October 1 of each year (beginning
in 2010), the Secretary of the Treasury (after consultation with
the Secretary of Health and Human Services, and, in the case
of the information required under paragraph (7), the Secretary
of Labor) shall report to the Committee on Finance and the Committee on Health, Education, Labor, and Pensions of the Senate
and the Committee on Ways and Means, the Committee on Education and Labor, and the Committee on Energy and Commerce
of the House of Representatives the following information with
respect to the most recent taxable year ending before such date:
(1) In each State and nationally—
(A) the total number of eligible individuals (as defined
in section 35(c) of the Internal Revenue Code of 1986)
and the number of eligible individuals receiving the health
coverage tax credit,
(B) the total number of such eligible individuals who
receive an advance payment of the health coverage tax
credit through the HCTC program,
(C) the average length of the time period of the participation of eligible individuals in the HCTC program, and
(D) the total number of participating eligible individuals in the HCTC program who are enrolled in each category of coverage as described in section 35(e)(1) of such
Code,
with respect to each category of eligible individuals described
in section 35(c)(1) of such Code.
(2) In each State and nationally, an analysis of—
(A) the range of monthly health insurance premiums,
for self-only coverage and for family coverage, for individuals receiving the health coverage tax credit, and
(B) the average and median monthly health insurance
premiums, for self-only coverage and for family coverage,
for individuals receiving the health coverage tax credit,
with respect to each category of coverage as described in section
35(e)(1) of such Code.
(3) In each State and nationally, an analysis of the following
information with respect to the health insurance coverage of
individuals receiving the health coverage tax credit who are
enrolled in coverage described in subparagraphs (B) through
(H) of section 35(e)(1) of such Code:
(A) Deductible amounts.
(B) Other out-of-pocket cost-sharing amounts.
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(C) A description of any annual or lifetime limits on
coverage or any other significant limits on coverage services, or benefits.
The information required under this paragraph shall be
reported with respect to each category of coverage described
in such subparagraphs.
(4) In each State and nationally, the gender and average
age of eligible individuals (as defined in section 35(c) of such
Code) who receive the health coverage tax credit, in each category of coverage described in section 35(e)(1) of such Code,
with respect to each category of eligible individuals described
in such section.
(5) The steps taken by the Secretary of the Treasury to
increase the participation rates in the HCTC program among
eligible individuals, including outreach and enrollment activities.
(6) The cost of administering the HCTC program by function, including the cost of subcontractors, and recommendations
on ways to reduce administrative costs, including recommended
statutory changes.
(7) The number of States applying for and receiving
national emergency grants under section 173(f) of the Workforce
Investment Act of 1998 (29 U.S.C. 2918(f)), the activities funded
by such grants on a State-by-State basis, and the time necessary
for application approval of such grants.
SEC. 1899J. AUTHORIZATION OF APPROPRIATIONS.
There is authorized to be appropriated $80,000,000 for the
period of fiscal years 2009 through 2010 to implement the amendments made by, and the provisions of, sections 1899 through 1899I
of this part.
SEC. 1899K. EXTENSION OF NATIONAL EMERGENCY GRANTS.
(a) IN GENERAL.—Section 173(f) of the Workforce Investment
Act of 1998 (29 U.S.C. 2918(f)), as amended by this Act, is
amended—
(1) by striking paragraph (1) and inserting the following
new paragraph:
‘‘(1) USE OF FUNDS.—
‘‘(A) HEALTH INSURANCE COVERAGE FOR ELIGIBLE
INDIVIDUALS IN ORDER TO OBTAIN QUALIFIED HEALTH INSUR-
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ANCE THAT HAS GUARANTEED ISSUE AND OTHER CONSUMER
PROTECTIONS.—Funds made available to a State or entity
under paragraph (4)(A) of subsection (a) may be used to
provide an eligible individual described in paragraph (4)(C)
and such individual’s qualifying family members with
health insurance coverage for the 3-month period that
immediately precedes the first eligible coverage month (as
defined in section 35(b) of the Internal Revenue Code of
1986) in which such eligible individual and such individual’s qualifying family members are covered by qualified
health insurance that meets the requirements described
in clauses (i) through (v) of section 35(e)(2)(A) of the
Internal Revenue Code of 1986 (or such longer minimum
period as is necessary in order for such eligible individual
and such individual’s qualifying family members to be covered by qualified health insurance that meets such requirements).
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PUBLIC LAW 111–5—FEB. 17, 2009
‘‘(B) ADDITIONAL USES.—Funds made available to a
State or entity under paragraph (4)(A) of subsection (a)
may be used by the State or entity for the following:
‘‘(i) HEALTH INSURANCE COVERAGE.—To assist an
eligible individual and such individual’s qualifying
family members with enrolling in health insurance
coverage and qualified health insurance or paying premiums for such coverage or insurance.
‘‘(ii) ADMINISTRATIVE EXPENSES AND START-UP
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EXPENSES TO ESTABLISH GROUP HEALTH PLAN COVERAGE
OPTIONS FOR QUALIFIED HEALTH INSURANCE.—To pay
the administrative expenses related to the enrollment
of eligible individuals and such individuals’ qualifying
family members in health insurance coverage and
qualified health insurance, including—
‘‘(I) eligibility verification activities;
‘‘(II) the notification of eligible individuals of
available health insurance and qualified health
insurance options;
‘‘(III) processing qualified health insurance
costs credit eligibility certificates provided for
under section 7527 of the Internal Revenue Code
of 1986;
‘‘(IV) providing assistance to eligible individuals in enrolling in health insurance coverage and
qualified health insurance;
‘‘(V) the development or installation of necessary data management systems; and
‘‘(VI) any other expenses determined appropriate by the Secretary, including start-up costs
and on going administrative expenses, in order
for the State to treat the coverage described in
subparagraphs (C) through (H) of section 35(e)(1)
of the Internal Revenue Code of 1986 as qualified
health insurance under that section.
‘‘(iii) OUTREACH.—To pay for outreach to eligible
individuals to inform such individuals of available
health insurance and qualified health insurance
options, including outreach consisting of notice to
eligible individuals of such options made available after
the date of enactment of this clause and direct assistance to help potentially eligible individuals and such
individual’s qualifying family members qualify and
remain eligible for the credit established under section
35 of the Internal Revenue Code of 1986 and advance
payment of such credit under section 7527 of such
Code.
‘‘(iv) BRIDGE FUNDING.—To assist potentially
eligible individuals to purchase qualified health insurance coverage prior to issuance of a qualified health
insurance costs credit eligibility certificate under section 7527 of the Internal Revenue Code of 1986 and
commencement of advance payment, and receipt of
expedited payment, under subsections (a) and (e),
respectively, of that section.
‘‘(C) RULE OF CONSTRUCTION.—The inclusion of a permitted use under this paragraph shall not be construed
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as prohibiting a similar use of funds permitted under subsection (g).’’; and
(2) by striking paragraph (2) and inserting the following
new paragraph:
‘‘(2) QUALIFIED HEALTH INSURANCE.—For purposes of this
subsection and subsection (g), the term ‘qualified health insurance’ has the meaning given that term in section 35(e) of
the Internal Revenue Code of 1986.’’.
(b) FUNDING.—Section 174(c)(1) of the Workforce Investment
Act of 1998 (29 U.S.C. 2919(c)(1)) is amended—
(1) in the paragraph heading, by striking ‘‘AUTHORIZATION
AND APPROPRIATION FOR FISCAL YEAR 2002’’ and inserting
‘‘APPROPRIATIONS’’; and
(2) by striking subparagraph (A) and inserting the following
new subparagraph:
‘‘(A) to carry out subsection (a)(4)(A) of section 173—
‘‘(i) $10,000,000 for fiscal year 2002; and
‘‘(ii) $150,000,000 for the period of fiscal years
2009 through 2010; and’’.
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SEC. 1899L. GAO STUDY AND REPORT.
(a) STUDY.—The Comptroller General of the United States shall
conduct a study regarding the health insurance tax credit allowed
under section 35 of the Internal Revenue Code of 1986.
(b) REPORT.—Not later than March 1, 2010, the Comptroller
General shall submit a report to Congress regarding the results
of the study conducted under subsection (a). Such report shall
include an analysis of—
(1) the administrative costs—
(A) of the Federal Government with respect to such
credit and the advance payment of such credit under section
7527 of such Code, and
(B) of providers of qualified health insurance with
respect to providing such insurance to eligible individuals
and their qualifying family members,
(2) the health status and relative risk status of eligible
individuals and qualifying family members covered under such
insurance,
(3) participation in such credit and the advance payment
of such credit by eligible individuals and their qualifying family
members, including the reasons why such individuals did or
did not participate and the effect of the amendments made
by this part on such participation, and
(4) the extent to which eligible individuals and their qualifying family members—
(A) obtained health insurance other than qualifying
health insurance, or
(B) went without health insurance coverage.
(c) ACCESS TO RECORDS.—For purposes of conducting the study
required under this section, the Comptroller General and any of
his duly authorized representatives shall have access to, and the
right to examine and copy, all documents, records, and other
recorded information—
(1) within the possession or control of providers of qualified
health insurance, and
(2) determined by the Comptroller General (or any such
representative) to be relevant to the study.
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PUBLIC LAW 111–5—FEB. 17, 2009
The Comptroller General shall not disclose the identity of any
provider of qualified health insurance or any eligible individual
in making any information obtained under this section available
to the public.
(d) DEFINITIONS.—Any term which is defined in section 35
of the Internal Revenue Code of 1986 shall have the same meaning
when used in this section.
Assistance for
Unemployed
Workers and
Struggling
Families Act.
TITLE II—ASSISTANCE FOR UNEMPLOYED WORKERS AND STRUGGLING
FAMILIES
SEC. 2000. SHORT TITLE; TABLE OF CONTENTS OF TITLE.‘
26 USC 1 note.
(a) SHORT TITLE.—This title may be cited as the ‘‘Assistance
for Unemployed Workers and Struggling Families Act’’.
(b) TABLE OF CONTENTS OF TITLE.—The table of contents of
this title is as follows:
TITLE II—ASSISTANCE FOR UNEMPLOYED WORKERS AND STRUGGLING
FAMILIES
Sec. 2000. Short title; table of contents of title.
Subtitle A—Unemployment Insurance
Extension of emergency unemployment compensation program.
Increase in unemployment compensation benefits.
Special transfers for unemployment compensation modernization.
Temporary assistance for states with advances.
Full Federal funding of extended unemployment compensation for a limited period.
Sec. 2006. Temporary increase in extended unemployment benefits under the Railroad Unemployment Insurance Act.
Sec.
Sec.
Sec.
Sec.
Sec.
2001.
2002.
2003.
2004.
2005.
Subtitle B—Assistance for Vulnerable Individuals
Sec. 2101. Emergency fund for TANF program.
Sec. 2102. Extension of TANF supplemental grants.
Sec. 2103. Clarification of authority of States to use TANF funds carried over from
prior years to provide TANF benefits and services.
Sec. 2104. Temporary resumption of prior child support law.
Subtitle C—Economic Recovery Payments to Certain Individuals
Sec. 2201. Economic recovery payment to recipients of social security, supplemental
security income, railroad retirement benefits, and veterans disability
compensation or pension benefits.
Sec. 2202. Special credit for certain government retirees.
Subtitle A—Unemployment Insurance
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SEC. 2001. EXTENSION OF EMERGENCY UNEMPLOYMENT COMPENSATION PROGRAM.
(a) IN GENERAL.—Section 4007 of the Supplemental Appropriations Act, 2008 (Public Law 110–252; 26 U.S.C. 3304 note), as
amended by section 4 of the Unemployment Compensation Extension Act of 2008 (Public Law 110–449; 122 Stat. 5015), is amended—
(1) by striking ‘‘March 31, 2009’’ each place it appears
and inserting ‘‘December 31, 2009’’;
(2) in the heading for subsection (b)(2), by striking ‘‘MARCH
31, 2009’’ and inserting ‘‘DECEMBER 31, 2009’’; and
(3) in subsection (b)(3), by striking ‘‘August 27, 2009’’ and
inserting ‘‘May 31, 2010’’.
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 437
(b) FINANCING PROVISIONS.—Section 4004 of such Act is
amended by adding at the end the following:
‘‘(e) TRANSFER OF FUNDS.—Notwithstanding any other provision
of law, the Secretary of the Treasury shall transfer from the general
fund of the Treasury (from funds not otherwise appropriated)—
‘‘(1) to the extended unemployment compensation account
(as established by section 905 of the Social Security Act) such
sums as the Secretary of Labor estimates to be necessary
to make payments to States under this title by reason of the
amendments made by section 2001(a) of the Assistance for
Unemployed Workers and Struggling Families Act; and
‘‘(2) to the employment security administration account
(as established by section 901 of the Social Security Act) such
sums as the Secretary of Labor estimates to be necessary
for purposes of assisting States in meeting administrative costs
by reason of the amendments referred to in paragraph (1).
There are appropriated from the general fund of the Treasury,
without fiscal year limitation, the sums referred to in the preceding
sentence and such sums shall not be required to be repaid.’’.
26 USC 3304
note.
SEC. 2002. INCREASE IN UNEMPLOYMENT COMPENSATION BENEFITS.
26 USC 3304
note.
(a) FEDERAL-STATE AGREEMENTS.—Any State which desires to
do so may enter into and participate in an agreement under this
section with the Secretary of Labor (hereinafter in this section
referred to as the ‘‘Secretary’’). Any State which is a party to
an agreement under this section may, upon providing 30 days’
written notice to the Secretary, terminate such agreement.
(b) PROVISIONS OF AGREEMENT.—
(1) ADDITIONAL COMPENSATION.—Any agreement under this
section shall provide that the State agency of the State will
make payments of regular compensation to individuals in
amounts and to the extent that they would be determined
if the State law of the State were applied, with respect to
any week for which the individual is (disregarding this section)
otherwise entitled under the State law to receive regular compensation, as if such State law had been modified in a manner
such that the amount of regular compensation (including
dependents’ allowances) payable for any week shall be equal
to the amount determined under the State law (before the
application of this paragraph) plus an additional $25.
(2) ALLOWABLE METHODS OF PAYMENT.—Any additional
compensation provided for in accordance with paragraph (1)
shall be payable either—
(A) as an amount which is paid at the same time
and in the same manner as any regular compensation
otherwise payable for the week involved; or
(B) at the option of the State, by payments which
are made separately from, but on the same weekly basis
as, any regular compensation otherwise payable.
(c) NONREDUCTION RULE.—An agreement under this section
shall not apply (or shall cease to apply) with respect to a State
upon a determination by the Secretary that the method governing
the computation of regular compensation under the State law of
that State has been modified in a manner such that—
(1) the average weekly benefit amount of regular compensation which will be payable during the period of the agreement
(determined disregarding any additional amounts attributable
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Time period.
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Applicability.
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PUBLIC LAW 111–5—FEB. 17, 2009
to the modification described in subsection (b)(1)) will be less
than
(2) the average weekly benefit amount of regular compensation which would otherwise have been payable during such
period under the State law, as in effect on December 31, 2008.
(d) PAYMENTS TO STATES.—
(1) IN GENERAL.—
(A) FULL REIMBURSEMENT.—There shall be paid to each
State which has entered into an agreement under this
section an amount equal to 100 percent of—
(i) the total amount of additional compensation
(as described in subsection (b)(1)) paid to individuals
by the State pursuant to such agreement; and
(ii) any additional administrative expenses
incurred by the State by reason of such agreement
(as determined by the Secretary).
(B) TERMS OF PAYMENTS.—Sums payable to any State
by reason of such State’s having an agreement under this
section shall be payable, either in advance or by way of
reimbursement (as determined by the Secretary), in such
amounts as the Secretary estimates the State will be entitled to receive under this section for each calendar month,
reduced or increased, as the case may be, by any amount
by which the Secretary finds that his estimates for any
prior calendar month were greater or less than the amounts
which should have been paid to the State. Such estimates
may be made on the basis of such statistical, sampling,
or other method as may be agreed upon by the Secretary
and the State agency of the State involved.
(2) CERTIFICATIONS.—The Secretary shall from time to time
certify to the Secretary of the Treasury for payment to each
State the sums payable to such State under this section.
(3) APPROPRIATION.—There are appropriated from the general fund of the Treasury, without fiscal year limitation, such
sums as may be necessary for purposes of this subsection.
(e) APPLICABILITY.—
(1) IN GENERAL.—An agreement entered into under this
section shall apply to weeks of unemployment—
(A) beginning after the date on which such agreement
is entered into; and
(B) ending before January 1, 2010.
(2) TRANSITION RULE FOR INDIVIDUALS REMAINING ENTITLED
TO REGULAR COMPENSATION AS OF JANUARY 1, 2010.—In the
case of any individual who, as of the date specified in paragraph
(1)(B), has not yet exhausted all rights to regular compensation
under the State law of a State with respect to a benefit year
that began before such date, additional compensation (as
described in subsection (b)(1)) shall continue to be payable
to such individual for any week beginning on or after such
date for which the individual is otherwise eligible for regular
compensation with respect to such benefit year.
(3) TERMINATION.—Notwithstanding any other provision of
this subsection, no additional compensation (as described in
subsection (b)(1)) shall be payable for any week beginning after
June 30, 2010.
(f) FRAUD AND OVERPAYMENTS.—The provisions of section 4005
of the Supplemental Appropriations Act, 2008 (Public Law 110–
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252; 122 Stat. 2356) shall apply with respect to additional compensation (as described in subsection (b)(1)) to the same extent
and in the same manner as in the case of emergency unemployment
compensation.
(g) APPLICATION TO OTHER UNEMPLOYMENT BENEFITS.—
(1) IN GENERAL.—Each agreement under this section shall
include provisions to provide that the purposes of the preceding
provisions of this section shall be applied with respect to
unemployment benefits described in subsection (i)(3) to the
same extent and in the same manner as if those benefits
were regular compensation.
(2) ELIGIBILITY AND TERMINATION RULES.—Additional compensation (as described in subsection (b)(1))—
(A) shall not be payable, pursuant to this subsection,
with respect to any unemployment benefits described in
subsection (i)(3) for any week beginning on or after the
date specified in subsection (e)(1)(B), except in the case
of an individual who was eligible to receive additional
compensation (as so described) in connection with any regular compensation or any unemployment benefits described
in subsection (i)(3) for any period of unemployment ending
before such date; and
(B) shall in no event be payable for any week beginning
after the date specified in subsection (e)(3).
(h) DISREGARD OF ADDITIONAL COMPENSATION FOR PURPOSES
OF MEDICAID AND SCHIP.—The monthly equivalent of any additional compensation paid under this section shall be disregarded
in considering the amount of income of an individual for any purposes under title XIX and title XXI of the Social Security Act.
(i) DEFINITIONS.—For purposes of this section—
(1) the terms ‘‘compensation’’, ‘‘regular compensation’’, ‘‘benefit year’’, ‘‘State’’, ‘‘State agency’’, ‘‘State law’’, and ‘‘week’’
have the respective meanings given such terms under section
205 of the Federal-State Extended Unemployment Compensation Act of 1970 (26 U.S.C. 3304 note);
(2) the term ‘‘emergency unemployment compensation’’
means emergency unemployment compensation under title IV
of the Supplemental Appropriations Act, 2008 (Public Law 110–
252; 122 Stat. 2353); and
(3) any reference to unemployment benefits described in
this paragraph shall be considered to refer to—
(A) extended compensation (as defined by section 205
of the Federal-State Extended Unemployment Compensation Act of 1970); and
(B) unemployment compensation (as defined by section
85(b) of the Internal Revenue Code of 1986) provided under
any program administered by a State under an agreement
with the Secretary.
SEC. 2003. SPECIAL TRANSFERS FOR UNEMPLOYMENT COMPENSATION
MODERNIZATION.
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(a) IN GENERAL.—Section 903 of the Social Security Act (42
U.S.C. 1103) is amended by adding at the end the following:
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PUBLIC LAW 111–5—FEB. 17, 2009
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‘‘Special Transfers in Fiscal Years 2009, 2010, and 2011 for
Modernization
‘‘(f)(1)(A) In addition to any other amounts, the Secretary of
Labor shall provide for the making of unemployment compensation
modernization incentive payments (hereinafter ‘incentive payments’) to the accounts of the States in the Unemployment Trust
Fund, by transfer from amounts reserved for that purpose in the
Federal unemployment account, in accordance with succeeding
provisions of this subsection.
‘‘(B) The maximum incentive payment allowable under this
subsection with respect to any State shall, as determined by the
Secretary of Labor, be equal to the amount obtained by multiplying
$7,000,000,000 by the same ratio as would apply under subsection
(a)(2)(B) for purposes of determining such State’s share of any
excess amount (as described in subsection (a)(1)) that would have
been subject to transfer to State accounts, as of October 1, 2008,
under the provisions of subsection (a).
‘‘(C) Of the maximum incentive payment determined under
subparagraph (B) with respect to a State—
‘‘(i) one-third shall be transferred to the account of such
State upon a certification under paragraph (4)(B) that the State
law of such State meets the requirements of paragraph (2);
and
‘‘(ii) the remainder shall be transferred to the account
of such State upon a certification under paragraph (4)(B) that
the State law of such State meets the requirements of paragraph (3).
‘‘(2) The State law of a State meets the requirements of this
paragraph if such State law—
‘‘(A) uses a base period that includes the most recently
completed calendar quarter before the start of the benefit year
for purposes of determining eligibility for unemployment compensation; or
‘‘(B) provides that, in the case of an individual who would
not otherwise be eligible for unemployment compensation under
the State law because of the use of a base period that does
not include the most recently completed calendar quarter before
the start of the benefit year, eligibility shall be determined
using a base period that includes such calendar quarter.
‘‘(3) The State law of a State meets the requirements of this
paragraph if such State law includes provisions to carry out at
least 2 of the following subparagraphs:
‘‘(A) An individual shall not be denied regular unemployment compensation under any State law provisions relating
to availability for work, active search for work, or refusal to
accept work, solely because such individual is seeking only
part-time work (as defined by the Secretary of Labor), except
that the State law provisions carrying out this subparagraph
may exclude an individual if a majority of the weeks of work
in such individual’s base period do not include part-time work
(as so defined).
‘‘(B) An individual shall not be disqualified from regular
unemployment compensation for separating from employment
if that separation is for any compelling family reason. For
purposes of this subparagraph, the term ‘compelling family
reason’ means the following:
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PUBLIC LAW 111–5—FEB. 17, 2009
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‘‘(i) Domestic violence, verified by such reasonable and
confidential documentation as the State law may require,
which causes the individual reasonably to believe that such
individual’s continued employment would jeopardize the
safety of the individual or of any member of the individual’s
immediate family (as defined by the Secretary of Labor).
‘‘(ii) The illness or disability of a member of the individual’s immediate family (as those terms are defined by the
Secretary of Labor).
‘‘(iii) The need for the individual to accompany such
individual’s spouse—
‘‘(I) to a place from which it is impractical for
such individual to commute; and
‘‘(II) due to a change in location of the spouse’s
employment.
‘‘(C)(i) Weekly unemployment compensation is payable
under this subparagraph to any individual who is unemployed
(as determined under the State unemployment compensation
law), has exhausted all rights to regular unemployment compensation under the State law, and is enrolled and making
satisfactory progress in a State-approved training program or
in a job training program authorized under the Workforce
Investment Act of 1998, except that such compensation is not
required to be paid to an individual who is receiving similar
stipends or other training allowances for non-training costs.
‘‘(ii) Each State-approved training program or job training
program referred to in clause (i) shall prepare individuals who
have been separated from a declining occupation, or who have
been involuntarily and indefinitely separated from employment
as a result of a permanent reduction of operations at the
individual’s place of employment, for entry into a high-demand
occupation.
‘‘(iii) The amount of unemployment compensation payable
under this subparagraph to an individual for a week of
unemployment shall be equal to—
‘‘(I) the individual’s average weekly benefit amount
(including dependents’ allowances) for the most recent benefit year, less
‘‘(II) any deductible income, as determined under State
law.
The total amount of unemployment compensation payable
under this subparagraph to any individual shall be equal to
at least 26 times the individual’s average weekly benefit
amount (including dependents’ allowances) for the most recent
benefit year.
‘‘(D) Dependents’ allowances are provided, in the case of
any individual who is entitled to receive regular unemployment
compensation and who has any dependents (as defined by State
law), in an amount equal to at least $15 per dependent per
week, subject to any aggregate limitation on such allowances
which the State law may establish (but which aggregate limitation on the total allowance for dependents paid to an individual
may not be less than $50 for each week of unemployment
or 50 percent of the individual’s weekly benefit amount for
the benefit year, whichever is less), except that a State law
may provide for a reasonable reduction in the amount of any
such allowance for a week of less than total unemployment.
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Application.
Deadline.
Deadline.
Notification.
Certifications.
Deadline.
Effective date.
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Deadline.
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‘‘(4)(A) Any State seeking an incentive payment under this
subsection shall submit an application therefor at such time, in
such manner, and complete with such information as the Secretary
of Labor may within 60 days after the date of the enactment
of this subsection prescribe (whether by regulation or otherwise),
including information relating to compliance with the requirements
of paragraph (2) or (3), as well as how the State intends to use
the incentive payment to improve or strengthen the State’s
unemployment compensation program. The Secretary of Labor shall,
within 30 days after receiving a complete application, notify the
State agency of the State of the Secretary’s findings with respect
to the requirements of paragraph (2) or (3) (or both).
‘‘(B)(i) If the Secretary of Labor finds that the State law provisions (disregarding any State law provisions which are not then
currently in effect as permanent law or which are subject to discontinuation) meet the requirements of paragraph (2) or (3), as
the case may be, the Secretary of Labor shall thereupon make
a certification to that effect to the Secretary of the Treasury,
together with a certification as to the amount of the incentive
payment to be transferred to the State account pursuant to that
finding. The Secretary of the Treasury shall make the appropriate
transfer within 7 days after receiving such certification.
‘‘(ii) For purposes of clause (i), State law provisions which
are to take effect within 12 months after the date of their certification under this subparagraph shall be considered to be in effect
as of the date of such certification.
‘‘(C)(i) No certification of compliance with the requirements
of paragraph (2) or (3) may be made with respect to any State
whose State law is not otherwise eligible for certification under
section 303 or approvable under section 3304 of the Federal
Unemployment Tax Act.
‘‘(ii) No certification of compliance with the requirements of
paragraph (3) may be made with respect to any State whose State
law is not in compliance with the requirements of paragraph (2).
‘‘(iii) No application under subparagraph (A) may be considered
if submitted before the date of the enactment of this subsection
or after the latest date necessary (as specified by the Secretary
of Labor) to ensure that all incentive payments under this subsection are made before October 1, 2011.
‘‘(5)(A) Except as provided in subparagraph (B), any amount
transferred to the account of a State under this subsection may
be used by such State only in the payment of cash benefits to
individuals with respect to their unemployment (including for
dependents’ allowances and for unemployment compensation under
paragraph (3)(C)), exclusive of expenses of administration.
‘‘(B) A State may, subject to the same conditions as set forth
in subsection (c)(2) (excluding subparagraph (B) thereof, and
deeming the reference to ‘subsections (a) and (b)’ in subparagraph
(D) thereof to include this subsection), use any amount transferred
to the account of such State under this subsection for the administration of its unemployment compensation law and public employment offices.
‘‘(6) Out of any money in the Federal unemployment account
not otherwise appropriated, the Secretary of the Treasury shall
reserve $7,000,000,000 for incentive payments under this subsection. Any amount so reserved shall not be taken into account
for purposes of any determination under section 902, 910, or 1203
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of the amount in the Federal unemployment account as of any
given time. Any amount so reserved for which the Secretary of
the Treasury has not received a certification under paragraph (4)(B)
by the deadline described in paragraph (4)(C)(iii) shall, upon the
close of fiscal year 2011, become unrestricted as to use as part
of the Federal unemployment account.
‘‘(7) For purposes of this subsection, the terms ‘benefit year’,
‘base period’, and ‘week’ have the respective meanings given such
terms under section 205 of the Federal-State Extended Unemployment Compensation Act of 1970 (26 U.S.C. 3304 note).
‘‘Special Transfer in Fiscal Year 2009 for Administration
‘‘(g)(1) In addition to any other amounts, the Secretary of the
Treasury shall transfer from the employment security administration account to the account of each State in the Unemployment
Trust Fund, within 30 days after the date of the enactment of
this subsection, the amount determined with respect to such State
under paragraph (2).
‘‘(2) The amount to be transferred under this subsection to
a State account shall (as determined by the Secretary of Labor
and certified by such Secretary to the Secretary of the Treasury)
be equal to the amount obtained by multiplying $500,000,000 by
the same ratio as determined under subsection (f)(1)(B) with respect
to such State.
‘‘(3) Any amount transferred to the account of a State as a
result of the enactment of this subsection may be used by the
State agency of such State only in the payment of expenses incurred
by it for—
‘‘(A) the administration of the provisions of its State law
carrying out the purposes of subsection (f)(2) or any subparagraph of subsection (f)(3);
‘‘(B) improved outreach to individuals who might be eligible
for regular unemployment compensation by virtue of any provisions of the State law which are described in subparagraph
(A);
‘‘(C) the improvement of unemployment benefit and
unemployment tax operations, including responding to
increased demand for unemployment compensation; and
‘‘(D) staff-assisted reemployment services for unemployment compensation claimants.’’.
(b) REGULATIONS.—The Secretary of Labor may prescribe any
regulations, operating instructions, or other guidance necessary to
carry out the amendment made by subsection (a).
Deadline.
42 USC 1103
note.
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SEC. 2004. TEMPORARY ASSISTANCE FOR STATES WITH ADVANCES.
Section 1202(b) of the Social Security Act (42 U.S.C. 1322(b))
is amended by adding at the end the following new paragraph:
‘‘(10)(A) With respect to the period beginning on the date of
enactment of this paragraph and ending on December 31, 2010—
‘‘(i) any interest payment otherwise due from a State under
this subsection during such period shall be deemed to have
been made by the State; and
‘‘(ii) no interest shall accrue during such period on any
advance or advances made under section 1201 to a State.
‘‘(B) The provisions of subparagraph (A) shall have no effect
on the requirement for interest payments under this subsection
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PUBLIC LAW 111–5—FEB. 17, 2009
after the period described in such subparagraph or on the accrual
of interest under this subsection after such period.’’.
26 USC 3304
note.
SEC. 2005. FULL FEDERAL FUNDING OF EXTENDED UNEMPLOYMENT
COMPENSATION FOR A LIMITED PERIOD.
Applicability.
(a) IN GENERAL.—In the case of sharable extended compensation and sharable regular compensation paid for weeks of unemployment beginning after the date of the enactment of this section
and before January 1, 2010, section 204(a)(1) of the Federal-State
Extended Unemployment Compensation Act of 1970 (26 U.S.C.
3304 note) shall be applied by substituting ‘‘100 percent of’’ for
‘‘one-half of’’.
(b) SPECIAL RULE.—At the option of a State, for any weeks
of unemployment beginning after the date of the enactment of
this section and before January 1, 2010, an individual’s eligibility
period (as described in section 203(c) of the Federal-State Extended
Unemployment Compensation Act of 1970) shall, for purposes of
any determination of eligibility for extended compensation under
the State law of such State, be considered to include any week
which begins—
(1) after the date as of which such individual exhausts
all rights to emergency unemployment compensation; and
(2) during an extended benefit period that began on or
before the date described in paragraph (1).
(c) LIMITED EXTENSION.—In the case of an individual who
receives extended compensation with respect to 1 or more weeks
of unemployment beginning after the date of the enactment of
this Act and before January 1, 2010, the provisions of subsections
(a) and (b) shall, at the option of a State, be applied by substituting
‘‘ending before June 1, 2010’’ for ‘‘before January 1, 2010’’.
(d) EXTENSION OF TEMPORARY FEDERAL MATCHING FOR THE
FIRST WEEK OF EXTENDED BENEFITS FOR STATES WITH NO WAITING
WEEK.—
(1) IN GENERAL.—Section 5 of the Unemployment Compensation Extension Act of 2008 (Public Law 110–449) is
amended by striking ‘‘December 8, 2009’’ and inserting ‘‘May
30, 2010’’.
(2) EFFECTIVE DATE.—The amendment made by paragraph
(1) shall take effect as if included in the enactment of the
Unemployment Compensation Extension Act of 2008 (Public
Law 110–449).
(e) DEFINITIONS.—For purposes of this section—
(1) the terms ‘‘sharable extended compensation’’ and ‘‘sharable regular compensation’’ have the respective meanings given
such terms under section 204 of the Federal-State Extended
Unemployment Compensation Act of 1970;
(2) the terms ‘‘extended compensation’’, ‘‘State’’, ‘‘State law’’,
and ‘‘week’’ have the respective meanings given such terms
under section 205 of the Federal-State Extended Unemployment
Compensation Act of 1970;
(3) the term ‘‘emergency unemployment compensation’’
means benefits payable to individuals under title IV of the
Supplemental Appropriations Act, 2008 with respect to their
unemployment; and
(4) the term ‘‘extended benefit period’’ means an extended
benefit period as determined in accordance with applicable
Applicability.
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26 USC 3304
note.
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provisions of the Federal-State Extended Unemployment Compensation Act of 1970.
(f) REGULATIONS.—The Secretary of Labor may prescribe any
operating instructions or regulations necessary to carry out this
section.
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SEC. 2006. TEMPORARY INCREASE IN EXTENDED UNEMPLOYMENT
BENEFITS UNDER THE RAILROAD UNEMPLOYMENT
INSURANCE ACT.
(a) IN GENERAL.—Section 2(c)(2) of the Railroad Unemployment
Insurance Act (45 U.S.C. 352(c)(2)) is amended by adding at the
end the following:
‘‘(D) TEMPORARY INCREASE IN EXTENDED UNEMPLOYMENT BENEFITS.—
‘‘(i) EMPLOYEES WITH 10 OR MORE YEARS OF
SERVICE.—Subject to clause (iii), in the case of an
employee who has 10 or more years of service (as
so defined), with respect to extended unemployment
benefits—
‘‘(I) subparagraph (A) shall be applied by substituting ‘130 days of unemployment’ for ‘65 days
of unemployment’; and
‘‘(II) subparagraph (B) shall be applied by
inserting ‘(or, in the case of unemployment benefits, 13 consecutive 14-day periods)’ after ‘7
consecutive 14-day periods’.
‘‘(ii) EMPLOYEES WITH LESS THAN 10 YEARS OF
SERVICE.—Subject to clause (iii), in the case of an
employee who has less than 10 years of service (as
so defined), with respect to extended unemployment
benefits, this paragraph shall apply to such an
employee in the same manner as this paragraph would
apply to an employee described in clause (i) if such
clause had not been enacted.
‘‘(iii) APPLICATION.—The provisions of clauses (i)
and (ii) shall apply to an employee who received normal
benefits for days of unemployment under this Act
during the period beginning July 1, 2008, and ending
on June 30, 2009, except that no extended benefit
period under this paragraph shall begin after
December 31, 2009. Notwithstanding the preceding
sentence, no benefits shall be payable under this
subparagraph and clauses (i) and (ii) shall no longer
be applicable upon the exhaustion of the funds appropriated under clause (iv) for payment of benefits under
this subparagraph.
‘‘(iv) APPROPRIATION.—Out of any funds in the
Treasury not otherwise appropriated, there are appropriated $20,000,000 to cover the cost of additional
extended unemployment benefits provided under this
subparagraph, to remain available until expended.’’.
(b) FUNDING FOR ADMINISTRATION.—Out of any funds in the
Treasury not otherwise appropriated, there are appropriated to
the Railroad Retirement Board $80,000 to cover the administrative
expenses associated with the payment of additional extended
unemployment benefits under section 2(c)(2)(D) of the Railroad
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Applicability.
Time period.
Deadline.
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Unemployment Insurance Act, as added by subsection (a), to remain
available until expended.
Subtitle B—Assistance for Vulnerable
Individuals
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SEC. 2101. EMERGENCY FUND FOR TANF PROGRAM.
(a) TEMPORARY FUND.—
(1) IN GENERAL.—Section 403 of the Social Security Act
(42 U.S.C. 603) is amended by adding at the end the following:
‘‘(c) EMERGENCY FUND.—
‘‘(1) ESTABLISHMENT.—There is established in the Treasury
of the United States a fund which shall be known as the
‘Emergency Contingency Fund for State Temporary Assistance
for Needy Families Programs’ (in this subsection referred to
as the ‘Emergency Fund’).
‘‘(2) DEPOSITS INTO FUND.—
‘‘(A) IN GENERAL.—Out of any money in the Treasury
of the United States not otherwise appropriated, there
are appropriated for fiscal year 2009, $5,000,000,000 for
payment to the Emergency Fund.
‘‘(B) AVAILABILITY AND USE OF FUNDS.—The amounts
appropriated to the Emergency Fund under subparagraph
(A) shall remain available through fiscal year 2010 and
shall be used to make grants to States in each of fiscal
years 2009 and 2010 in accordance with the requirements
of paragraph (3).
‘‘(C) LIMITATION.—In no case may the Secretary make
a grant from the Emergency Fund for a fiscal year after
fiscal year 2010.
‘‘(3) GRANTS.—
‘‘(A) GRANT RELATED TO CASELOAD INCREASES.—
‘‘(i) IN GENERAL.—For each calendar quarter in
fiscal year 2009 or 2010, the Secretary shall make
a grant from the Emergency Fund to each State that—
‘‘(I) requests a grant under this subparagraph
for the quarter; and
‘‘(II) meets the requirement of clause (ii) for
the quarter.
‘‘(ii) CASELOAD INCREASE REQUIREMENT.—A State
meets the requirement of this clause for a quarter
if the average monthly assistance caseload of the State
for the quarter exceeds the average monthly assistance
caseload of the State for the corresponding quarter
in the emergency fund base year of the State.
‘‘(iii) AMOUNT OF GRANT.—Subject to paragraph
(5), the amount of the grant to be made to a State
under this subparagraph for a quarter shall be an
amount equal to 80 percent of the amount (if any)
by which the total expenditures of the State for basic
assistance (as defined by the Secretary) in the quarter,
whether under the State program funded under this
part or as qualified State expenditures, exceeds the
total expenditures of the State for such assistance for
the corresponding quarter in the emergency fund base
year of the State.
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‘‘(B) GRANT RELATED TO INCREASED EXPENDITURES FOR
NON-RECURRENT SHORT TERM BENEFITS.—
‘‘(i) IN GENERAL.—For each calendar quarter in
fiscal year 2009 or 2010, the Secretary shall make
a grant from the Emergency Fund to each State that—
‘‘(I) requests a grant under this subparagraph
for the quarter; and
‘‘(II) meets the requirement of clause (ii) for
the quarter.
‘‘(ii) NON-RECURRENT SHORT TERM EXPENDITURE
REQUIREMENT.—A State meets the requirement of this
clause for a quarter if the total expenditures of the
State for non-recurrent short term benefits in the
quarter, whether under the State program funded
under this part or as qualified State expenditures,
exceeds the total expenditures of the State for nonrecurrent short term benefits in the corresponding
quarter in the emergency fund base year of the State.
‘‘(iii) AMOUNT OF GRANT.—Subject to paragraph
(5), the amount of the grant to be made to a State
under this subparagraph for a quarter shall be an
amount equal to 80 percent of the excess described
in clause (ii).
‘‘(C) GRANT RELATED TO INCREASED EXPENDITURES FOR
SUBSIDIZED EMPLOYMENT.—
‘‘(i) IN GENERAL.—For each calendar quarter in
fiscal year 2009 or 2010, the Secretary shall make
a grant from the Emergency Fund to each State that—
‘‘(I) requests a grant under this subparagraph
for the quarter; and
‘‘(II) meets the requirement of clause (ii) for
the quarter.
‘‘(ii) SUBSIDIZED EMPLOYMENT EXPENDITURE
REQUIREMENT.—A State meets the requirement of this
clause for a quarter if the total expenditures of the
State for subsidized employment in the quarter,
whether under the State program funded under this
part or as qualified State expenditures, exceeds the
total such expenditures of the State in the corresponding quarter in the emergency fund base year
of the State.
‘‘(iii) AMOUNT OF GRANT.—Subject to paragraph
(5), the amount of the grant to be made to a State
under this subparagraph for a quarter shall be an
amount equal to 80 percent of the excess described
in clause (ii).
‘‘(4) AUTHORITY TO MAKE NECESSARY ADJUSTMENTS TO DATA
AND COLLECT NEEDED DATA.—In determining the size of the
caseload of a State and the expenditures of a State for basic
assistance, non-recurrent short-term benefits, and subsidized
employment, during any period for which the State requests
funds under this subsection, and during the emergency fund
base year of the State, the Secretary may make appropriate
adjustments to the data, on a State-by-State basis, to ensure
that the data are comparable with respect to the groups of
families served and the types of aid provided. The Secretary
may develop a mechanism for collecting expenditure data,
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including procedures which allow States to make reasonable
estimates, and may set deadlines for making revisions to the
data.
‘‘(5) LIMITATION.—The total amount payable to a single
State under subsection (b) and this subsection for fiscal years
2009 and 2010 combined shall not exceed 50 percent of the
annual State family assistance grant.
‘‘(6) LIMITATIONS ON USE OF FUNDS.—A State to which
an amount is paid under this subsection may use the amount
only as authorized by section 404.
‘‘(7) TIMING OF IMPLEMENTATION.—The Secretary shall
implement this subsection as quickly as reasonably possible,
pursuant to appropriate guidance to States.
‘‘(8) APPLICATION TO INDIAN TRIBES.—This subsection shall
apply to an Indian tribe with an approved tribal family assistance plan under section 412 in the same manner as this subsection applies to a State.
‘‘(9) DEFINITIONS.—In this subsection:
‘‘(A) AVERAGE MONTHLY ASSISTANCE CASELOAD
DEFINED.—The term ‘average monthly assistance caseload’
means, with respect to a State and a quarter, the number
of families receiving assistance during the quarter under
the State program funded under this part or as qualified
State expenditures, subject to adjustment under paragraph
(4).
‘‘(B) EMERGENCY FUND BASE YEAR.—
‘‘(i) IN GENERAL.—The term ‘emergency fund base
year’ means, with respect to a State and a category
described in clause (ii), whichever of fiscal year 2007
or 2008 is the fiscal year in which the amount described
by the category with respect to the State is the lesser.
‘‘(ii) CATEGORIES DESCRIBED.—The categories
described in this clause are the following:
‘‘(I) The average monthly assistance caseload
of the State.
‘‘(II) The total expenditures of the State for
non-recurrent short term benefits, whether under
the State program funded under this part or as
qualified State expenditures.
‘‘(III) The total expenditures of the State for
subsidized employment, whether under the State
program funded under this part or as qualified
State expenditures.
‘‘(C) QUALIFIED STATE EXPENDITURES.—The term ‘qualified State expenditures’ has the meaning given the term
in section 409(a)(7).’’.
(2) REPEAL.—Effective October 1, 2010, subsection (c) of
section 403 of the Social Security Act (42 U.S.C. 603) (as
added by paragraph (1)) is repealed, except that paragraph
(9) of such subsection shall remain in effect until October
1, 2011, but only with respect to section 407(b)(3)(A)(i) of such
Act.
(b) TEMPORARY MODIFICATION OF CASELOAD REDUCTION
CREDIT.—Section 407(b)(3)(A)(i) of such Act (42 U.S.C.
607(b)(3)(A)(i)) is amended by inserting ‘‘(or if the immediately
preceding fiscal year is fiscal year 2008, 2009, or 2010, then, at
State option, during the emergency fund base year of the State
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 449
with respect to the average monthly assistance caseload of the
State (within the meaning of section 403(c)(9)), except that, if a
State elects such option for fiscal year 2008, the emergency fund
base year of the State with respect to such caseload shall be
fiscal year 2007))’’ before ‘‘under the State’’.
(c) DISREGARD FROM LIMITATION ON TOTAL PAYMENTS TO TERRITORIES.—Section 1108(a)(2) of the Social Security Act (42 U.S.C.
1308(a)(2)) is amended by inserting ‘‘403(c)(3),’’ after ‘‘403(a)(5),’’.
(d) SUNSET OF OTHER TEMPORARY PROVISIONS.—
(1) DISREGARD FROM LIMITATION ON TOTAL PAYMENTS TO
TERRITORIES.—Effective October 1, 2010, section 1108(a)(2) of
the Social Security Act (42 U.S.C. 1308(a)(2)) is amended by
striking ‘‘403(c)(3),’’ (as added by subsection (c)).
(2) CASELOAD REDUCTION CREDIT.—Effective October 1,
2011, section 407(b)(3)(A)(i) of such Act (42 U.S.C.
607(b)(3)(A)(i)) is amended by striking ‘‘(or if the immediately
preceding fiscal year is fiscal year 2008, 2009, or 2010, then,
at State option, during the emergency fund base year of the
State with respect to the average monthly assistance caseload
of the State (within the meaning of section 403(c)(9)), except
that, if a State elects such option for fiscal year 2008, the
emergency fund base year of the State with respect to such
caseload shall be fiscal year 2007))’’ (as added by subsection
(b)).
Effective dates.
SEC. 2102. EXTENSION OF TANF SUPPLEMENTAL GRANTS.
(a) EXTENSION THROUGH FISCAL YEAR 2010.—Section 7101(a)
of the Deficit Reduction Act of 2005 (Public Law 109–171; 120
Stat. 135), as amended by section 301(a) of the Medicare Improvements for Patients and Providers Act of 2008 (Public Law 110–
275), is amended by striking ‘‘fiscal year 2009’’ and inserting ‘‘fiscal
year 2010’’.
(b) CONFORMING AMENDMENT.—Section 403(a)(3)(H)(ii) of the
Social Security Act (42 U.S.C. 603(a)(3)(H)(ii)) is amended to read
as follows:
‘‘(ii) subparagraph (G) shall be applied as if ‘fiscal
year 2010’ were substituted for ‘fiscal year 2001’; and’’.
SEC. 2103. CLARIFICATION OF AUTHORITY OF STATES TO USE TANF
FUNDS CARRIED OVER FROM PRIOR YEARS TO PROVIDE
TANF BENEFITS AND SERVICES.
Section 404(e) of the Social Security Act (42 U.S.C. 604(e))
is amended to read as follows:
‘‘(e) AUTHORITY TO CARRY OVER CERTAIN AMOUNTS FOR BENEFITS OR SERVICES OR FOR FUTURE CONTINGENCIES.—A State or
tribe may use a grant made to the State or tribe under this
part for any fiscal year to provide, without fiscal year limitation,
any benefit or service that may be provided under the State or
tribal program funded under this part.’’.
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SEC. 2104. TEMPORARY RESUMPTION OF PRIOR CHILD SUPPORT LAW.
During the period that begins on October 1, 2008, and ends
on September 30, 2010, section 455(a)(1) of the Social Security
Act (42 U.S.C. 655(a)(1)) shall be applied and administered as
if the phrase ‘‘from amounts paid to the State under section 458
or’’ does not appear in such section.
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42 USC 655 note.
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PUBLIC LAW 111–5—FEB. 17, 2009
Subtitle C—Economic Recovery Payments
to Certain Individuals
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26 USC 6428
note.
SEC. 2201. ECONOMIC RECOVERY PAYMENT TO RECIPIENTS OF SOCIAL
SECURITY, SUPPLEMENTAL SECURITY INCOME, RAILROAD RETIREMENT BENEFITS, AND VETERANS DISABILITY COMPENSATION OR PENSION BENEFITS.
(a) AUTHORITY TO MAKE PAYMENTS.—
(1) ELIGIBILITY.—
(A) IN GENERAL.—Subject to paragraph (5)(B), the Secretary of the Treasury shall disburse a $250 payment to
each individual who, for any month during the 3-month
period ending with the month which ends prior to the
month that includes the date of the enactment of this
Act, is entitled to a benefit payment described in clause
(i), (ii), or (iii) of subparagraph (B) or is eligible for a
SSI cash benefit described in subparagraph (C).
(B) BENEFIT PAYMENT DESCRIBED.—For purposes of
subparagraph (A):
(i) TITLE II BENEFIT.—A benefit payment described
in this clause is a monthly insurance benefit payable
(without regard to sections 202(j)(1) and 223(b) of the
Social Security Act (42 U.S.C. 402(j)(1), 423(b)) under—
(I) section 202(a) of such Act (42 U.S.C.
402(a));
(II) section 202(b) of such Act (42 U.S.C.
402(b));
(III) section 202(c) of such Act (42 U.S.C.
402(c));
(IV) section 202(d)(1)(B)(ii) of such Act (42
U.S.C. 402(d)(1)(B)(ii));
(V) section 202(e) of such Act (42 U.S.C.
402(e));
(VI) section 202(f) of such Act (42 U.S.C.
402(f));
(VII) section 202(g) of such Act (42 U.S.C.
402(g));
(VIII) section 202(h) of such Act (42 U.S.C.
402(h));
(IX) section 223(a) of such Act (42 U.S.C.
423(a));
(X) section 227 of such Act (42 U.S.C. 427);
or
(XI) section 228 of such Act (42 U.S.C. 428).
(ii) RAILROAD RETIREMENT BENEFIT.—A benefit
payment described in this clause is a monthly annuity
or pension payment payable (without regard to section
5(a)(ii) of the Railroad Retirement Act of 1974 (45
U.S.C. 231d(a)(ii))) under—
(I) section 2(a)(1) of such Act (45 U.S.C.
231a(a)(1));
(II) section 2(c) of such Act (45 U.S.C. 231a(c));
(III) section 2(d)(1)(i) of such Act (45 U.S.C.
231a(d)(1)(i));
(IV) section 2(d)(1)(ii) of such Act (45 U.S.C.
231a(d)(1)(ii));
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 451
(V) section 2(d)(1)(iii)(C) of such Act to an
adult disabled child (45 U.S.C. 231a(d)(1)(iii)(C));
(VI) section 2(d)(1)(iv) of such Act (45 U.S.C.
231a(d)(1)(iv));
(VII) section 2(d)(1)(v) of such Act (45 U.S.C.
231a(d)(1)(v)); or
(VIII) section 7(b)(2) of such Act (45 U.S.C.
231f(b)(2)) with respect to any of the benefit payments described in clause (i) of this subparagraph.
(iii) VETERANS BENEFIT.—A benefit payment
described in this clause is a compensation or pension
payment payable under—
(I) section 1110, 1117, 1121, 1131, 1141, or
1151 of title 38, United States Code;
(II) section 1310, 1312, 1313, 1315, 1316, or
1318 of title 38, United States Code;
(III) section 1513, 1521, 1533, 1536, 1537,
1541, 1542, or 1562 of title 38, United States Code;
or
(IV) section 1805, 1815, or 1821 of title 38,
United States Code,
to a veteran, surviving spouse, child, or parent as
described in paragraph (2), (3), (4)(A)(ii), or (5) of section 101, title 38, United States Code, who received
that benefit during any month within the 3 month
period ending with the month which ends prior to
the month that includes the date of the enactment
of this Act.
(C) SSI CASH BENEFIT DESCRIBED.—A SSI cash benefit
described in this subparagraph is a cash benefit payable
under section 1611 (other than under subsection (e)(1)(B)
of such section) or 1619(a) of the Social Security Act (42
U.S.C. 1382, 1382h).
(2) REQUIREMENT.—A payment shall be made under paragraph (1) only to individuals who reside in 1 of the 50 States,
the District of Columbia, Puerto Rico, Guam, the United States
Virgin Islands, American Samoa, or the Northern Mariana
Islands. For purposes of the preceding sentence, the determination of the individual’s residence shall be based on the current
address of record under a program specified in paragraph (1).
(3) NO DOUBLE PAYMENTS.—An individual shall be paid
only 1 payment under this section, regardless of whether the
individual is entitled to, or eligible for, more than 1 benefit
or cash payment described in paragraph (1).
(4) LIMITATION.—A payment under this section shall not
be made—
(A) in the case of an individual entitled to a benefit
specified in paragraph (1)(B)(i) or paragraph (1)(B)(ii)(VIII)
if, for the most recent month of such individual’s entitlement in the 3-month period described in paragraph (1),
such individual’s benefit under such paragraph was not
payable by reason of subsection (x) or (y) of section 202
the Social Security Act (42 U.S.C. 402) or section 1129A
of such Act (42 U.S.C. 1320a-8a);
(B) in the case of an individual entitled to a benefit
specified in paragraph (1)(B)(iii) if, for the most recent
month of such individual’s entitlement in the 3 month
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123 STAT. 452
Deadline.
Certification.
Time period.
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PUBLIC LAW 111–5—FEB. 17, 2009
period described in paragraph (1), such individual’s benefit
under such paragraph was not payable, or was reduced,
by reason of section 1505, 5313, or 5313B of title 38,
United States Code;
(C) in the case of an individual entitled to a benefit
specified in paragraph (1)(C) if, for such most recent month,
such individual’s benefit under such paragraph was not
payable by reason of subsection (e)(1)(A) or (e)(4) of section
1611 (42 U.S.C. 1382) or section 1129A of such Act (42
U.S.C. 1320a-8a); or
(D) in the case of any individual whose date of death
occurs before the date on which the individual is certified
under subsection (b) to receive a payment under this section.
(5) TIMING AND MANNER OF PAYMENTS.—
(A) IN GENERAL.—The Secretary of the Treasury shall
commence disbursing payments under this section at the
earliest practicable date but in no event later than 120
days after the date of enactment of this Act. The Secretary
of the Treasury may disburse any payment electronically
to an individual in such manner as if such payment was
a benefit payment or cash benefit to such individual under
the applicable program described in subparagraph (B) or
(C) of paragraph (1).
(B) DEADLINE.—No payments shall be disbursed under
this section after December 31, 2010, regardless of any
determinations of entitlement to, or eligibility for, such
payments made after such date.
(b) IDENTIFICATION OF RECIPIENTS.—The Commissioner of
Social Security, the Railroad Retirement Board, and the Secretary
of Veterans Affairs shall certify the individuals entitled to receive
payments under this section and provide the Secretary of the
Treasury with the information needed to disburse such payments.
A certification of an individual shall be unaffected by any subsequent determination or redetermination of the individual’s entitlement to, or eligibility for, a benefit specified in subparagraph (B)
or (C) of subsection (a)(1).
(c) TREATMENT OF PAYMENTS.—
(1) PAYMENT TO BE DISREGARDED FOR PURPOSES OF ALL
FEDERAL AND FEDERALLY ASSISTED PROGRAMS.—A payment
under subsection (a) shall not be regarded as income and shall
not be regarded as a resource for the month of receipt and
the following 9 months, for purposes of determining the eligibility of the recipient (or the recipient’s spouse or family) for
benefits or assistance, or the amount or extent of benefits
or assistance, under any Federal program or under any State
or local program financed in whole or in part with Federal
funds.
(2) PAYMENT NOT CONSIDERED INCOME FOR PURPOSES OF
TAXATION.—A payment under subsection (a) shall not be considered as gross income for purposes of the Internal Revenue
Code of 1986.
(3) PAYMENTS PROTECTED FROM ASSIGNMENT.—The provisions of sections 207 and 1631(d)(1) of the Social Security
Act (42 U.S.C. 407, 1383(d)(1)), section 14(a) of the Railroad
Retirement Act of 1974 (45 U.S.C. 231m(a)), and section 5301
of title 38, United States Code, shall apply to any payment
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 453
made under subsection (a) as if such payment was a benefit
payment or cash benefit to such individual under the applicable
program described in subparagraph (B) or (C) of subsection
(a)(1).
(4) PAYMENTS SUBJECT TO OFFSET.—Notwithstanding paragraph (3), for purposes of section 3716 of title 31, United
States Code, any payment made under this section shall not
be considered a benefit payment or cash benefit made under
the applicable program described in subparagraph (B) or (C)
of subsection (a)(1) and all amounts paid shall be subject to
offset to collect delinquent debts.
(d) PAYMENT TO REPRESENTATIVE PAYEES AND FIDUCIARIES.—
(1) IN GENERAL.—In any case in which an individual who
is entitled to a payment under subsection (a) and whose benefit
payment or cash benefit described in paragraph (1) of that
subsection is paid to a representative payee or fiduciary, the
payment under subsection (a) shall be made to the individual’s
representative payee or fiduciary and the entire payment shall
be used only for the benefit of the individual who is entitled
to the payment.
(2) APPLICABILITY.—
(A) PAYMENT ON THE BASIS OF A TITLE II OR SSI BENEFIT.—Section 1129(a)(3) of the Social Security Act (42
U.S.C. 1320a–8(a)(3)) shall apply to any payment made
on the basis of an entitlement to a benefit specified in
paragraph (1)(B)(i) or (1)(C) of subsection (a) in the same
manner as such section applies to a payment under title
II or XVI of such Act.
(B) PAYMENT ON THE BASIS OF A RAILROAD RETIREMENT
BENEFIT.—Section 13 of the Railroad Retirement Act (45
U.S.C. 231l) shall apply to any payment made on the
basis of an entitlement to a benefit specified in paragraph
(1)(B)(ii) of subsection (a) in the same manner as such
section applies to a payment under such Act.
(C) PAYMENT ON THE BASIS OF A VETERANS BENEFIT.—
Sections 5502, 6106, and 6108 of title 38, United States
Code, shall apply to any payment made on the basis of
an entitlement to a benefit specified in paragraph (1)(B)(iii)
of subsection (a) in the same manner as those sections
apply to a payment under that title.
(e) APPROPRIATION.—Out of any sums in the Treasury of the
United States not otherwise appropriated, the following sums are
appropriated for the period of fiscal years 2009 through 2011,
to remain available until expended, to carry out this section:
(1) For the Secretary of the Treasury, $131,000,000 for
administrative costs incurred in carrying out this section, section 2202, section 36A of the Internal Revenue Code of 1986
(as added by this Act), and other provisions of this Act or
the amendments made by this Act relating to the Internal
Revenue Code of 1986.
(2) For the Commissioner of Social Security—
(A) such sums as may be necessary for payments to
individuals certified by the Commissioner of Social Security
as entitled to receive a payment under this section; and
(B) $90,000,000 for the Social Security Administration’s
Limitation on Administrative Expenses for costs incurred
in carrying out this section.
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PUBLIC LAW 111–5—FEB. 17, 2009
(3) For the Railroad Retirement Board—
(A) such sums as may be necessary for payments to
individuals certified by the Railroad Retirement Board as
entitled to receive a payment under this section; and
(B) $1,400,000 to the Railroad Retirement Board’s
Limitation on Administration for administrative costs
incurred in carrying out this section.
(4)(A) For the Secretary of Veterans Affairs—
(i) such sums as may be necessary for the Compensation and Pensions account, for payments to
individuals certified by the Secretary of Veterans
Affairs as entitled to receive a payment under this
section; and
(ii) $100,000 for the Information Systems Technology account and $7,100,000 for the General Operating Expenses account for administrative costs
incurred in carrying out this section.
(B) The Department of Veterans Affairs Compensation and
Pensions account shall hereinafter be available for payments
authorized under subsection (a)(1)(A) to individuals entitled
to a benefit payment described in subsection (a)(1)(B)(iii).
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26 USC 6428
note.
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SEC. 2202. SPECIAL CREDIT FOR CERTAIN GOVERNMENT RETIREES.
(a) IN GENERAL.—In the case of an eligible individual, there
shall be allowed as a credit against the tax imposed by subtitle
A of the Internal Revenue Code of 1986 for the first taxable year
beginning in 2009 an amount equal $250 ($500 in the case of
a joint return where both spouses are eligible individuals).
(b) ELIGIBLE INDIVIDUAL.—For purposes of this section—
(1) IN GENERAL.—The term ‘‘eligible individual’’ means any
individual—
(A) who receives during the first taxable year beginning
in 2009 any amount as a pension or annuity for service
performed in the employ of the United States or any State,
or any instrumentality thereof, which is not considered
employment for purposes of chapter 21 of the Internal
Revenue Code of 1986, and
(B) who does not receive a payment under section
2201 during such taxable year.
(2) IDENTIFICATION NUMBER REQUIREMENT.—Such term
shall not include any individual who does not include on the
return of tax for the taxable year—
(A) such individual’s social security account number,
and
(B) in the case of a joint return, the social security
account number of one of the taxpayers on such return.
For purposes of the preceding sentence, the social security
account number shall not include a TIN (as defined in section
7701(a)(41) of the Internal Revenue Code of 1986) issued by
the Internal Revenue Service. Any omission of a correct social
security account number required under this subparagraph
shall be treated as a mathematical or clerical error for purposes
of applying section 6213(g)(2) of such Code to such omission.
(c) TREATMENT OF CREDIT.—
(1) REFUNDABLE CREDIT.—
(A) IN GENERAL.—The credit allowed by subsection (a)
shall be treated as allowed by subpart C of part IV of
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subchapter A of chapter 1 of the Internal Revenue Code
of 1986.
(B) APPROPRIATIONS.—For purposes of section
1324(b)(2) of title 31, United States Code, the credit allowed
by subsection (a) shall be treated in the same manner
a refund from the credit allowed under section 36A of
the Internal Revenue Code of 1986 (as added by this Act).
(2) DEFICIENCY RULES.—For purposes of section
6211(b)(4)(A) of the Internal Revenue Code of 1986, the credit
allowable by subsection (a) shall be treated in the same manner
as the credit allowable under section 36A of the Internal Revenue Code of 1986 (as added by this Act).
(d) REFUNDS DISREGARDED IN THE ADMINISTRATION OF FEDERAL
PROGRAMS AND FEDERALLY ASSISTED PROGRAMS.—Any credit or
refund allowed or made to any individual by reason of this section
shall not be taken into account as income and shall not be taken
into account as resources for the month of receipt and the following
2 months, for purposes of determining the eligibility of such individual or any other individual for benefits or assistance, or the
amount or extent of benefits or assistance, under any Federal
program or under any State or local program financed in whole
or in part with Federal funds.
Time period.
TITLE III—PREMIUM ASSISTANCE FOR
COBRA BENEFITS
SEC. 3000. TABLE OF CONTENTS.
The table of contents of this title is as follows:
TITLE III—PREMIUM ASSISTANCE FOR COBRA BENEFITS
Sec. 3000. Table of contents.
Sec. 3001. Premium assistance for COBRA benefits.
SEC. 3001. PREMIUM ASSISTANCE FOR COBRA BENEFITS.
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(a) PREMIUM ASSISTANCE FOR COBRA CONTINUATION COVERAGE
FOR INDIVIDUALS AND THEIR FAMILIES.—
(1) PROVISION OF PREMIUM ASSISTANCE.—
(A) REDUCTION OF PREMIUMS PAYABLE.—In the case
of any premium for a period of coverage beginning on
or after the date of the enactment of this Act for COBRA
continuation coverage with respect to any assistance
eligible individual, such individual shall be treated for purposes of any COBRA continuation provision as having paid
the amount of such premium if such individual pays (or
a person other than such individual’s employer pays on
behalf of such individual) 35 percent of the amount of
such premium (as determined without regard to this subsection).
(B) PLAN ENROLLMENT OPTION.—
(i) IN GENERAL.—Notwithstanding the COBRA
continuation provisions, an assistance eligible individual may, not later than 90 days after the date
of notice of the plan enrollment option described in
this subparagraph, elect to enroll in coverage under
a plan offered by the employer involved, or the
employee organization involved (including, for this purpose, a joint board of trustees of a multiemployer trust
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26 USC 6432
note.
Deadline.
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123 STAT. 456
PUBLIC LAW 111–5—FEB. 17, 2009
affiliated with one or more multiemployer plans), that
is different than coverage under the plan in which
such individual was enrolled at the time the qualifying
event occurred, and such coverage shall be treated
as COBRA continuation coverage for purposes of the
applicable COBRA continuation coverage provision.
(ii) REQUIREMENTS.—An assistance eligible individual may elect to enroll in different coverage as
described in clause (i) only if—
(I) the employer involved has made a determination that such employer will permit assistance
eligible individuals to enroll in different coverage
as provided for this subparagraph;
(II) the premium for such different coverage
does not exceed the premium for coverage in which
the individual was enrolled at the time the qualifying event occurred;
(III) the different coverage in which the individual elects to enroll is coverage that is also
offered to the active employees of the employer
at the time at which such election is made; and
(IV) the different coverage is not—
(aa) coverage that provides only dental,
vision, counseling, or referral services (or a
combination of such services);
(bb) a flexible spending arrangement (as
defined in section 106(c)(2) of the Internal Revenue Code of 1986); or
(cc) coverage that provides coverage for
services or treatments furnished in an on-site
medical facility maintained by the employer
and that consists primarily of first-aid services, prevention and wellness care, or similar
care (or a combination of such care).
(C) PREMIUM REIMBURSEMENT.—For provisions providing the balance of such premium, see section 6432 of
the Internal Revenue Code of 1986, as added by paragraph
(12).
(2) LIMITATION OF PERIOD OF PREMIUM ASSISTANCE.—
(A) IN GENERAL.—Paragraph (1)(A) shall not apply with
respect to any assistance eligible individual for months
of coverage beginning on or after the earlier of—
(i) the first date that such individual is eligible
for coverage under any other group health plan (other
than coverage consisting of only dental, vision, counseling, or referral services (or a combination thereof),
coverage under a flexible spending arrangement (as
defined in section 106(c)(2) of the Internal Revenue
Code of 1986), or coverage of treatment that is furnished in an on-site medical facility maintained by
the employer and that consists primarily of first-aid
services, prevention and wellness care, or similar care
(or a combination thereof)) or is eligible for benefits
under title XVIII of the Social Security Act, or
(ii) the earliest of—
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 457
(I) the date which is 9 months after the first
day of the first month that paragraph (1)(A)
applies with respect to such individual,
(II) the date following the expiration of the
maximum period of continuation coverage required
under the applicable COBRA continuation coverage provision, or
(III) the date following the expiration of the
period of continuation coverage allowed under
paragraph (4)(B)(ii).
(B) TIMING OF ELIGIBILITY FOR ADDITIONAL COVERAGE.—For purposes of subparagraph (A)(i), an individual
shall not be treated as eligible for coverage under a group
health plan before the first date on which such individual
could be covered under such plan.
(C) NOTIFICATION REQUIREMENT.—An assistance
eligible individual shall notify in writing the group health
plan with respect to which paragraph (1)(A) applies if such
paragraph ceases to apply by reason of subparagraph (A)(i).
Such notice shall be provided to the group health plan
in such time and manner as may be specified by the Secretary of Labor.
(3) ASSISTANCE ELIGIBLE INDIVIDUAL.—For purposes of this
section, the term ‘‘assistance eligible individual’’ means any
qualified beneficiary if—
(A) at any time during the period that begins with
September 1, 2008, and ends with December 31, 2009,
such qualified beneficiary is eligible for COBRA continuation coverage,
(B) such qualified beneficiary elects such coverage, and
(C) the qualifying event with respect to the COBRA
continuation coverage consists of the involuntary termination of the covered employee’s employment and occurred
during such period.
(4) EXTENSION OF ELECTION PERIOD AND EFFECT ON COVERAGE.—
(A) IN GENERAL.—For purposes of applying section
605(a) of the Employee Retirement Income Security Act
of 1974, section 4980B(f)(5)(A) of the Internal Revenue
Code of 1986, section 2205(a) of the Public Health Service
Act, and section 8905a(c)(2) of title 5, United States Code,
in the case of an individual who does not have an election
of COBRA continuation coverage in effect on the date of
the enactment of this Act but who would be an assistance
eligible individual if such election were so in effect, such
individual may elect the COBRA continuation coverage
under the COBRA continuation coverage provisions containing such sections during the period beginning on the
date of the enactment of this Act and ending 60 days
after the date on which the notification required under
paragraph (7)(C) is provided to such individual.
(B) COMMENCEMENT OF COVERAGE; NO REACH-BACK.—
Any COBRA continuation coverage elected by a qualified
beneficiary during an extended election period under
subparagraph (A)—
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Time period.
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Application.
Determination.
Deadline.
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(i) shall commence with the first period of coverage
beginning on or after the date of the enactment of
this Act, and
(ii) shall not extend beyond the period of COBRA
continuation coverage that would have been required
under the applicable COBRA continuation coverage
provision if the coverage had been elected as required
under such provision.
(C) PREEXISTING CONDITIONS.—With respect to a qualified beneficiary who elects COBRA continuation coverage
pursuant to subparagraph (A), the period—
(i) beginning on the date of the qualifying event,
and
(ii) ending with the beginning of the period
described in subparagraph (B)(i),
shall be disregarded for purposes of determining the 63day periods referred to in section 701(c)(2) of the Employee
Retirement Income Security Act of 1974, section 9801(c)(2)
of the Internal Revenue Code of 1986, and section 2701(c)(2)
of the Public Health Service Act.
(5) EXPEDITED REVIEW OF DENIALS OF PREMIUM ASSISTANCE.—In any case in which an individual requests treatment
as an assistance eligible individual and is denied such treatment by the group health plan, the Secretary of Labor (or
the Secretary of Health and Human Services in connection
with COBRA continuation coverage which is provided other
than pursuant to part 6 of subtitle B of title I of the Employee
Retirement Income Security Act of 1974), in consultation with
the Secretary of the Treasury, shall provide for expedited review
of such denial. An individual shall be entitled to such review
upon application to such Secretary in such form and manner
as shall be provided by such Secretary. Such Secretary shall
make a determination regarding such individual’s eligibility
within 15 business days after receipt of such individual’s
application for review under this paragraph. Either Secretary’s
determination upon review of the denial shall be de novo and
shall be the final determination of such Secretary. A reviewing
court shall grant deference to such Secretary’s determination.
The provisions of this paragraph, paragraphs (1) through (4),
and paragraph (7) shall be treated as provisions of title I
of the Employee Retirement Income Security Act of 1974 for
purposes of part 5 of subtitle B of such title.
(6) DISREGARD OF SUBSIDIES FOR PURPOSES OF FEDERAL
AND STATE PROGRAMS.—Notwithstanding any other provision
of law, any premium reduction with respect to an assistance
eligible individual under this subsection shall not be considered
income or resources in determining eligibility for, or the amount
of assistance or benefits provided under, any other public benefit provided under Federal law or the law of any State or
political subdivision thereof.
(7) NOTICES TO INDIVIDUALS.—
(A) GENERAL NOTICE.—
(i) IN GENERAL.—In the case of notices provided
under section 606(a)(4) of the Employee Retirement
Income Security Act of 1974 (29 U.S.C. 1166(4)), section
4980B(f)(6)(D) of the Internal Revenue Code of 1986,
section 2206(4) of the Public Health Service Act (42
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 459
U.S.C. 300bb-6(4)), or section 8905a(f)(2)(A) of title 5,
United States Code, with respect to individuals who,
during the period described in paragraph (3)(A),
become entitled to elect COBRA continuation coverage,
the requirements of such sections shall not be treated
as met unless such notices include an additional
notification to the recipient of—
(I) the availability of premium reduction with
respect to such coverage under this subsection,
and
(II) the option to enroll in different coverage
if the employer permits assistance eligible individuals to elect enrollment in different coverage (as
described in paragraph (1)(B)).
(ii) ALTERNATIVE NOTICE.—In the case of COBRA
continuation coverage to which the notice provision
under such sections does not apply, the Secretary of
Labor, in consultation with the Secretary of the
Treasury and the Secretary of Health and Human
Services, shall, in consultation with administrators of
the group health plans (or other entities) that provide
or administer the COBRA continuation coverage
involved, provide rules requiring the provision of such
notice.
(iii) FORM.—The requirement of the additional
notification under this subparagraph may be met by
amendment of existing notice forms or by inclusion
of a separate document with the notice otherwise
required.
(B) SPECIFIC REQUIREMENTS.—Each additional notification under subparagraph (A) shall include—
(i) the forms necessary for establishing eligibility
for premium reduction under this subsection,
(ii) the name, address, and telephone number necessary to contact the plan administrator and any other
person maintaining relevant information in connection
with such premium reduction,
(iii) a description of the extended election period
provided for in paragraph (4)(A),
(iv) a description of the obligation of the qualified
beneficiary under paragraph (2)(C) to notify the plan
providing continuation coverage of eligibility for subsequent coverage under another group health plan or
eligibility for benefits under title XVIII of the Social
Security Act and the penalty provided under section
6720C of the Internal Revenue Code of 1986 for failure
to so notify the plan,
(v) a description, displayed in a prominent manner,
of the qualified beneficiary’s right to a reduced premium and any conditions on entitlement to the reduced
premium, and
(vi) a description of the option of the qualified
beneficiary to enroll in different coverage if the
employer permits such beneficiary to elect to enroll
in such different coverage under paragraph (1)(B).
(C) NOTICE IN CONNECTION WITH EXTENDED ELECTION
PERIODS.—In the case of any assistance eligible individual
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(or any individual described in paragraph (4)(A)) who
became entitled to elect COBRA continuation coverage
before the date of the enactment of this Act, the administrator of the group health plan (or other entity) involved
shall provide (within 60 days after the date of enactment
of this Act) for the additional notification required to be
provided under subparagraph (A) and failure to provide
such notice shall be treated as a failure to meet the notice
requirements under the applicable COBRA continuation
provision.
(D) MODEL NOTICES.—Not later than 30 days after
the date of enactment of this Act—
(i) the Secretary of the Labor, in consultation with
the Secretary of the Treasury and the Secretary of
Health and Human Services, shall prescribe models
for the additional notification required under this paragraph (other than the additional notification described
in clause (ii)), and
(ii) in the case of any additional notification provided pursuant to subparagraph (A) under section
8905a(f)(2)(A) of title 5, United States Code, the Office
of Personnel Management shall prescribe a model for
such additional notification.
(8) REGULATIONS.—The Secretary of the Treasury may prescribe such regulations or other guidance as may be necessary
or appropriate to carry out the provisions of this subsection,
including the prevention of fraud and abuse under this subsection, except that the Secretary of Labor and the Secretary
of Health and Human Services may prescribe such regulations
(including interim final regulations) or other guidance as may
be necessary or appropriate to carry out the provisions of paragraphs (5), (7), and (9).
(9) OUTREACH.—The Secretary of Labor, in consultation
with the Secretary of the Treasury and the Secretary of Health
and Human Services, shall provide outreach consisting of public
education and enrollment assistance relating to premium reduction provided under this subsection. Such outreach shall target
employers, group health plan administrators, public assistance
programs, States, insurers, and other entities as determined
appropriate by such Secretaries. Such outreach shall include
an initial focus on those individuals electing continuation coverage who are referred to in paragraph (7)(C). Information
on such premium reduction, including enrollment, shall also
be made available on websites of the Departments of Labor,
Treasury, and Health and Human Services.
(10) DEFINITIONS.—For purposes of this section—
(A) ADMINISTRATOR.—The term ‘‘administrator’’ has the
meaning given such term in section 3(16)(A) of the
Employee Retirement Income Security Act of 1974.
(B) COBRA CONTINUATION COVERAGE.—The term
‘‘COBRA continuation coverage’’ means continuation coverage provided pursuant to part 6 of subtitle B of title
I of the Employee Retirement Income Security Act of 1974
(other than under section 609), title XXII of the Public
Health Service Act, section 4980B of the Internal Revenue
Code of 1986 (other than subsection (f)(1) of such section
insofar as it relates to pediatric vaccines), or section 8905a
Deadline.
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123 STAT. 461
of title 5, United States Code, or under a State program
that provides comparable continuation coverage. Such term
does not include coverage under a health flexible spending
arrangement under a cafeteria plan within the meaning
of section 125 of the Internal Revenue Code of 1986.
(C) COBRA CONTINUATION PROVISION.—The term
‘‘COBRA continuation provision’’ means the provisions of
law described in subparagraph (B).
(D) COVERED EMPLOYEE.—The term ‘‘covered employee’’
has the meaning given such term in section 607(2) of
the Employee Retirement Income Security Act of 1974.
(E) QUALIFIED BENEFICIARY.—The term ‘‘qualified
beneficiary’’ has the meaning given such term in section
607(3) of the Employee Retirement Income Security Act
of 1974.
(F) GROUP HEALTH PLAN.—The term ‘‘group health
plan’’ has the meaning given such term in section 607(1)
of the Employee Retirement Income Security Act of 1974.
(G) STATE.—The term ‘‘State’’ includes the District of
Columbia, the Commonwealth of Puerto Rico, the Virgin
Islands, Guam, American Samoa, and the Commonwealth
of the Northern Mariana Islands.
(H) PERIOD OF COVERAGE.—Any reference in this subsection to a period of coverage shall be treated as a reference to a monthly or shorter period of coverage with
respect to which premiums are charged with respect to
such coverage.
(11) REPORTS.—
(A) INTERIM REPORT.—The Secretary of the Treasury
shall submit an interim report to the Committee on Education and Labor, the Committee on Ways and Means,
and the Committee on Energy and Commerce of the House
of Representatives and the Committee on Health, Education, Labor, and Pensions and the Committee on Finance
of the Senate regarding the premium reduction provided
under this subsection that includes—
(i) the number of individuals provided such assistance as of the date of the report; and
(ii) the total amount of expenditures incurred (with
administrative expenditures noted separately) in
connection with such assistance as of the date of the
report.
(B) FINAL REPORT.—As soon as practicable after the
last period of COBRA continuation coverage for which premium reduction is provided under this section, the Secretary of the Treasury shall submit a final report to each
Committee referred to in subparagraph (A) that includes—
(i) the number of individuals provided premium
reduction under this section;
(ii) the average dollar amount (monthly and
annually) of premium reductions provided to such
individuals; and
(iii) the total amount of expenditures incurred
(with administrative expenditures noted separately) in
connection with premium reduction under this section.
(12) COBRA PREMIUM ASSISTANCE.—
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PUBLIC LAW 111–5—FEB. 17, 2009
(A) IN GENERAL.—Subchapter B of chapter 65 of the
Internal Revenue Code of 1986, as amended by this Act,
is amended by adding at the end the following new section:
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26 USC 6432.
‘‘SEC. 6432. COBRA PREMIUM ASSISTANCE.
‘‘(a) IN GENERAL.—The person to whom premiums are payable
under COBRA continuation coverage shall be reimbursed as provided in subsection (c) for the amount of premiums not paid by
assistance eligible individuals by reason of section 3002(a) of the
Health Insurance Assistance for the Unemployed Act of 2009.
‘‘(b) PERSON ENTITLED TO REIMBURSEMENT.—For purposes of
subsection (a), except as otherwise provided by the Secretary, the
person to whom premiums are payable under COBRA continuation
coverage shall be treated as being—
‘‘(1) in the case of any group health plan which is a multiemployer plan (as defined in section 3(37) of the Employee
Retirement Income Security Act of 1974), the plan,
‘‘(2) in the case of any group health plan not described
in paragraph (1)—
‘‘(A) which is subject to the COBRA continuation provisions contained in—
‘‘(i) the Internal Revenue Code of 1986,
‘‘(ii) the Employee Retirement Income Security Act
of 1974,
‘‘(iii) the Public Health Service Act, or
‘‘(iv) title 5, United States Code, or
‘‘(B) under which some or all of the coverage is not
provided by insurance,
the employer maintaining the plan, and
‘‘(3) in the case of any group health plan not described
in paragraph (1) or (2), the insurer providing the coverage
under the group health plan.
‘‘(c) METHOD OF REIMBURSEMENT.—Except as otherwise provided by the Secretary—
‘‘(1) TREATMENT AS PAYMENT OF PAYROLL TAXES.—Each person entitled to reimbursement under subsection (a) (and filing
a claim for such reimbursement at such time and in such
manner as the Secretary may require) shall be treated for
purposes of this title and section 1324(b)(2) of title 31, United
States Code, as having paid to the Secretary, on the date
that the assistance eligible individual’s premium payment is
received, payroll taxes in an amount equal to the portion of
such reimbursement which relates to such premium. To the
extent that the amount treated as paid under the preceding
sentence exceeds the amount of such person’s liability for such
taxes, the Secretary shall credit or refund such excess in the
same manner as if it were an overpayment of such taxes.
‘‘(2) OVERSTATEMENTS.—Any overstatement of the
reimbursement to which a person is entitled under this section
(and any amount paid by the Secretary as a result of such
overstatement) shall be treated as an underpayment of payroll
taxes by such person and may be assessed and collected by
the Secretary in the same manner as payroll taxes.
‘‘(3) REIMBURSEMENT CONTINGENT ON PAYMENT OF
REMAINING PREMIUM.—No reimbursement may be made under
this section to a person with respect to any assistance eligible
individual until after the reduced premium required under
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section 3002(a)(1)(A) of such Act with respect to such individual
has been received.
‘‘(d) DEFINITIONS.—For purposes of this section—
‘‘(1) PAYROLL TAXES.—The term ‘payroll taxes’ means—
‘‘(A) amounts required to be deducted and withheld
for the payroll period under section 3402 (relating to wage
withholding),
‘‘(B) amounts required to be deducted for the payroll
period under section 3102 (relating to FICA employee
taxes), and
‘‘(C) amounts of the taxes imposed for the payroll period
under section 3111 (relating to FICA employer taxes).
‘‘(2) PERSON.—The term ‘person’ includes any governmental
entity.
‘‘(e) REPORTING.—Each person entitled to reimbursement under
subsection (a) for any period shall submit such reports (at such
time and in such manner) as the Secretary may require, including—
‘‘(1) an attestation of involuntary termination of employment for each covered employee on the basis of whose termination entitlement to reimbursement is claimed under subsection (a),
‘‘(2) a report of the amount of payroll taxes offset under
subsection (a) for the reporting period and the estimated offsets
of such taxes for the subsequent reporting period in connection
with reimbursements under subsection (a), and
‘‘(3) a report containing the TINs of all covered employees,
the amount of subsidy reimbursed with respect to each covered
employee and qualified beneficiaries, and a designation with
respect to each covered employee as to whether the subsidy
reimbursement is for coverage of 1 individual or 2 or more
individuals.
‘‘(f) REGULATIONS.—The Secretary shall issue such regulations
or other guidance as may be necessary or appropriate to carry
out this section, including—
‘‘(1) the requirement to report information or the establishment of other methods for verifying the correct amounts of
reimbursements under this section, and
‘‘(2) the application of this section to group health plans
that are multiemployer plans (as defined in section 3(37) of
the Employee Retirement Income Security Act of 1974).’’.
(B) SOCIAL SECURITY TRUST FUNDS HELD HARMLESS.—
In determining any amount transferred or appropriated
to any fund under the Social Security Act, section 6432
of the Internal Revenue Code of 1986 shall not be taken
into account.
(C) CLERICAL AMENDMENT.—The table of sections for
subchapter B of chapter 65 of the Internal Revenue Code
of 1986 is amended by adding at the end the following
new item:
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‘‘Sec. 6432. COBRA premium assistance.’’.
(D) EFFECTIVE DATE.—The
amendments made by this
paragraph shall apply to premiums to which subsection
(a)(1)(A) applies.
(E) SPECIAL RULE.—
(i) IN GENERAL.—In the case of an assistance
eligible individual who pays, with respect to the first
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PUBLIC LAW 111–5—FEB. 17, 2009
period of COBRA continuation coverage to which subsection (a)(1)(A) applies or the immediately subsequent
period, the full premium amount for such coverage,
the person to whom such payment is payable shall—
(I) make a reimbursement payment to such
individual for the amount of such premium paid
in excess of the amount required to be paid under
subsection (a)(1)(A); or
(II) provide credit to the individual for such
amount in a manner that reduces one or more
subsequent premium payments that the individual
is required to pay under such subsection for the
coverage involved.
(ii) REIMBURSING EMPLOYER.—A person to which
clause (i) applies shall be reimbursed as provided for
in section 6432 of the Internal Revenue Code of 1986
for any payment made, or credit provided, to the
employee under such clause.
(iii) PAYMENT OR CREDITS.—Unless it is reasonable
to believe that the credit for the excess payment in
clause (i)(II) will be used by the assistance eligible
individual within 180 days of the date on which the
person receives from the individual the payment of
the full premium amount, a person to which clause
(i) applies shall make the payment required under
such clause to the individual within 60 days of such
payment of the full premium amount. If, as of any
day within the 180-day period, it is no longer reasonable to believe that the credit will be used during
that period, payment equal to the remainder of the
credit outstanding shall be made to the individual
within 60 days of such day.
(13) PENALTY FOR FAILURE TO NOTIFY HEALTH PLAN OF
CESSATION OF ELIGIBILITY FOR PREMIUM ASSISTANCE.—
(A) IN GENERAL.—Part I of subchapter B of chapter
68 of the Internal Revenue Code of 1986 is amended by
adding at the end the following new section:
Time period.
Deadlines.
26 USC 6720C.
‘‘SEC. 6720C. PENALTY FOR FAILURE TO NOTIFY HEALTH PLAN OF
CESSATION OF ELIGIBILITY FOR COBRA PREMIUM
ASSISTANCE.
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‘‘(a) IN GENERAL.—Any person required to notify a group health
plan under section 3002(a)(2)(C)) of the Health Insurance Assistance
for the Unemployed Act of 2009 who fails to make such a notification
at such time and in such manner as the Secretary of Labor may
require shall pay a penalty of 110 percent of the premium reduction
provided under such section after termination of eligibility under
such subsection.
‘‘(b) REASONABLE CAUSE EXCEPTION.—No penalty shall be
imposed under subsection (a) with respect to any failure if it is
shown that such failure is due to reasonable cause and not to
willful neglect.’’.
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(B) CLERICAL AMENDMENT.—The table of sections of
part I of subchapter B of chapter 68 of such Code is
amended by adding at the end the following new item:
‘‘Sec. 6720C. Penalty for failure to notify health plan of cessation of eligibility for
COBRA premium assistance.’’.
(C) EFFECTIVE DATE.—The amendments made by this
paragraph shall apply to failures occurring after the date
of the enactment of this Act.
(14) COORDINATION WITH HCTC.—
(A) IN GENERAL.—Subsection (g) of section 35 of the
Internal Revenue Code of 1986 is amended by redesignating
paragraph (9) as paragraph (10) and inserting after paragraph (8) the following new paragraph:
‘‘(9) COBRA PREMIUM ASSISTANCE.—In the case of an assistance eligible individual who receives premium reduction for
COBRA continuation coverage under section 3002(a) of the
Health Insurance Assistance for the Unemployed Act of 2009
for any month during the taxable year, such individual shall
not be treated as an eligible individual, a certified individual,
or a qualifying family member for purposes of this section
or section 7527 with respect to such month.’’.
(B) EFFECTIVE DATE.—The amendment made by
subparagraph (A) shall apply to taxable years ending after
the date of the enactment of this Act.
(15) EXCLUSION OF COBRA PREMIUM ASSISTANCE FROM GROSS
INCOME.—
(A) IN GENERAL.—Part III of subchapter B of chapter
1 of the Internal Revenue Code of 1986 is amended by
inserting after section 139B the following new section:
‘‘SEC. 139C. COBRA PREMIUM ASSISTANCE.
26 USC 35.
26 USC 139C.
‘‘In the case of an assistance eligible individual (as defined
in section 3002 of the Health Insurance Assistance for the
Unemployed Act of 2009), gross income does not include any premium reduction provided under subsection (a) of such section.’’.
(B) CLERICAL AMENDMENT.—The table of sections for
part III of subchapter B of chapter 1 of such Code is
amended by inserting after the item relating to section
139B the following new item:
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‘‘Sec. 139C. COBRA premium assistance.’’.
(C) EFFECTIVE DATE.—The
amendments made by this
paragraph shall apply to taxable years ending after the
date of the enactment of this Act.
(b) ELIMINATION OF PREMIUM SUBSIDY FOR HIGH-INCOME
INDIVIDUALS.—
(1) RECAPTURE OF SUBSIDY FOR HIGH-INCOME INDIVIDUALS.—If—
(A) premium assistance is provided under this section
with respect to any COBRA continuation coverage which
covers the taxpayer, the taxpayer’s spouse, or any
dependent (within the meaning of section 152 of the
Internal Revenue Code of 1986, determined without regard
to subsections (b)(1), (b)(2), and (d)(1)(B) thereof) of the
taxpayer during any portion of the taxable year, and
(B) the taxpayer’s modified adjusted gross income for
such taxable year exceeds $125,000 ($250,000 in the case
of a joint return),
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then the tax imposed by chapter 1 of such Code with respect
to the taxpayer for such taxable year shall be increased by
the amount of such assistance.
(2) PHASE-IN OF RECAPTURE.—
(A) IN GENERAL.—In the case of a taxpayer whose
modified adjusted gross income for the taxable year does
not exceed $145,000 ($290,000 in the case of a joint return),
the increase in the tax imposed under paragraph (1) shall
not exceed the phase-in percentage of such increase (determined without regard to this paragraph).
(B) PHASE-IN PERCENTAGE.—For purposes of this subsection, the term ‘‘phase-in percentage’’ means the ratio
(expressed as a percentage) obtained by dividing—
(i) the excess of described in subparagraph (B)
of paragraph (1), by
(ii) $20,000 ($40,000 in the case of a joint return).
(3) OPTION FOR HIGH-INCOME INDIVIDUALS TO WAIVE ASSISTANCE AND AVOID RECAPTURE.—Notwithstanding subsection
(a)(3), an individual shall not be treated as an assistance
eligible individual for purposes of this section and section 6432
of the Internal Revenue Code of 1986 if such individual—
(A) makes a permanent election (at such time and
in such form and manner as the Secretary of the Treasury
may prescribe) to waive the right to the premium assistance
provided under this section, and
(B) notifies the entity to whom premiums are
reimbursed under section 6432(a) of such Code of such
election.
(4) MODIFIED ADJUSTED GROSS INCOME.—For purposes of
this subsection, the term ‘‘modified adjusted gross income’’
means the adjusted gross income (as defined in section 62
of the Internal Revenue Code of 1986) of the taxpayer for
the taxable year increased by any amount excluded from gross
income under section 911, 931, or 933 of such Code.
(5) CREDITS NOT ALLOWED AGAINST TAX, ETC.—For purposes
determining regular tax liability under section 26(b) of such
Code, the increase in tax under this subsection shall not be
treated as a tax imposed under chapter 1 of such Code.
(6) REGULATIONS.—The Secretary of the Treasury shall
issue such regulations or other guidance as are necessary or
appropriate to carry out this subsection, including requirements
that the entity to whom premiums are reimbursed under section
6432(a) of the Internal Revenue Code of 1986 report to the
Secretary, and to each assistance eligible individual, the
amount of premium assistance provided under subsection (a)
with respect to each such individual.
(7) EFFECTIVE DATE.—The provisions of this subsection
shall apply to taxable years ending after the date of the enactment of this Act.
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TITLE IV—MEDICARE AND MEDICAID
HEALTH
INFORMATION
TECHNOLOGY; MISCELLANEOUS MEDICARE
PROVISIONS
Health
Information
Technology for
Economic
and Clinical
Health Act.
SEC. 4001. TABLE OF CONTENTS OF TITLE.
The table of contents of this title is as follows:
TITLE IV—MEDICARE AND MEDICAID HEALTH INFORMATION
TECHNOLOGY; MISCELLANEOUS MEDICARE PROVISIONS
Sec. 4001. Table of contents of title.
Sec.
Sec.
Sec.
Sec.
Subtitle A—Medicare Incentives
Incentives for eligible professionals.
Incentives for hospitals.
Treatment of payments and savings; implementation funding.
Studies and reports on health information technology.
4101.
4102.
4103.
4104.
Subtitle B—Medicaid Incentives
Sec. 4201. Medicaid provider HIT adoption and operation payments; implementation funding.
Subtitle C—Miscellaneous Medicare Provisions
Sec. 4301. Moratoria on certain Medicare regulations.
Sec. 4302. Long-term care hospital technical corrections.
Subtitle A—Medicare Incentives
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SEC. 4101. INCENTIVES FOR ELIGIBLE PROFESSIONALS.
(a) INCENTIVE PAYMENTS.—Section 1848 of the Social Security
Act (42 U.S.C. 1395w–4) is amended by adding at the end the
following new subsection:
‘‘(o) INCENTIVES FOR ADOPTION AND MEANINGFUL USE OF CERTIFIED EHR TECHNOLOGY.—
‘‘(1) INCENTIVE PAYMENTS.—
‘‘(A) IN GENERAL.—
‘‘(i) IN GENERAL.—Subject to the succeeding subparagraphs of this paragraph, with respect to covered
professional services furnished by an eligible professional during a payment year (as defined in subparagraph (E)), if the eligible professional is a meaningful
EHR user (as determined under paragraph (2)) for
the EHR reporting period with respect to such year,
in addition to the amount otherwise paid under this
part, there also shall be paid to the eligible professional
(or to an employer or facility in the cases described
in clause (A) of section 1842(b)(6)), from the Federal
Supplementary Medical Insurance Trust Fund established under section 1841 an amount equal to 75 percent of the Secretary’s estimate (based on claims submitted not later than 2 months after the end of the
payment year) of the allowed charges under this part
for all such covered professional services furnished by
the eligible professional during such year.
‘‘(ii) NO INCENTIVE PAYMENTS WITH RESPECT TO
YEARS AFTER 2016.—No incentive payments may be
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made under this subsection with respect to a year
after 2016.
‘‘(B) LIMITATIONS ON AMOUNTS OF INCENTIVE PAYMENTS.—
‘‘(i) IN GENERAL.—In no case shall the amount
of the incentive payment provided under this paragraph for an eligible professional for a payment year
exceed the applicable amount specified under this
subparagraph with respect to such eligible professional
and such year.
‘‘(ii) AMOUNT.—Subject to clauses (iii) through (v),
the applicable amount specified in this subparagraph
for an eligible professional is as follows:
‘‘(I) For the first payment year for such professional, $15,000 (or, if the first payment year for
such eligible professional is 2011 or 2012, $18,000).
‘‘(II) For the second payment year for such
professional, $12,000.
‘‘(III) For the third payment year for such
professional, $8,000.
‘‘(IV) For the fourth payment year for such
professional, $4,000.
‘‘(V) For the fifth payment year for such professional, $2,000.
‘‘(VI) For any succeeding payment year for
such professional, $0.
‘‘(iii) PHASE DOWN FOR ELIGIBLE PROFESSIONALS
FIRST ADOPTING EHR AFTER 2013.—If the first payment
year for an eligible professional is after 2013, then
the amount specified in this subparagraph for a payment year for such professional is the same as the
amount specified in clause (ii) for such payment year
for an eligible professional whose first payment year
is 2013.
‘‘(iv) INCREASE FOR CERTAIN ELIGIBLE PROFESSIONALS.—In the case of an eligible professional who
predominantly furnishes services under this part in
an area that is designated by the Secretary (under
section 332(a)(1)(A) of the Public Health Service Act)
as a health professional shortage area, the amount
that would otherwise apply for a payment year for
such professional under subclauses (I) through (V) of
clause (ii) shall be increased by 10 percent. In implementing the preceding sentence, the Secretary may,
as determined appropriate, apply provisions of subsections (m) and (u) of section 1833 in a similar manner
as such provisions apply under such subsection.
‘‘(v) NO INCENTIVE PAYMENT IF FIRST ADOPTING
AFTER 2014.—If the first payment year for an eligible
professional is after 2014 then the applicable amount
specified in this subparagraph for such professional
for such year and any subsequent year shall be $0.
‘‘(C) NON-APPLICATION TO HOSPITAL-BASED ELIGIBLE
PROFESSIONALS.—
‘‘(i) IN GENERAL.—No incentive payment may be
made under this paragraph in the case of a hospitalbased eligible professional.
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123 STAT. 469
‘‘(ii) HOSPITAL-BASED ELIGIBLE PROFESSIONAL.—For
purposes of clause (i), the term ‘hospital-based eligible
professional’ means, with respect to covered professional services furnished by an eligible professional
during the EHR reporting period for a payment year,
an eligible professional, such as a pathologist, anesthesiologist, or emergency physician, who furnishes
substantially all of such services in a hospital setting
(whether inpatient or outpatient) and through the use
of the facilities and equipment, including qualified electronic health records, of the hospital. The determination of whether an eligible professional is a hospitalbased eligible professional shall be made on the basis
of the site of service (as defined by the Secretary)
and without regard to any employment or billing
arrangement between the eligible professional and any
other provider.
‘‘(D) PAYMENT.—
‘‘(i) FORM OF PAYMENT.—The payment under this
paragraph may be in the form of a single consolidated
payment or in the form of such periodic installments
as the Secretary may specify.
‘‘(ii) COORDINATION OF APPLICATION OF LIMITATION
FOR PROFESSIONALS IN DIFFERENT PRACTICES.—In the
case of an eligible professional furnishing covered
professional services in more than one practice (as
specified by the Secretary), the Secretary shall establish rules to coordinate the incentive payments,
including the application of the limitation on amounts
of such incentive payments under this paragraph,
among such practices.
‘‘(iii) COORDINATION WITH MEDICAID.—The Secretary shall seek, to the maximum extent practicable,
to avoid duplicative requirements from Federal and
State governments to demonstrate meaningful use of
certified EHR technology under this title and title XIX.
The Secretary may also adjust the reporting periods
under such title and such subsections in order to carry
out this clause.
‘‘(E) PAYMENT YEAR DEFINED.—
‘‘(i) IN GENERAL.—For purposes of this subsection,
the term ‘payment year’ means a year beginning with
2011.
‘‘(ii) FIRST, SECOND, ETC. PAYMENT YEAR.—The
term ‘first payment year’ means, with respect to covered professional services furnished by an eligible
professional, the first year for which an incentive payment is made for such services under this subsection.
The terms ‘second payment year’, ‘third payment year’,
‘fourth payment year’, and ‘fifth payment year’ mean,
with respect to covered professional services furnished
by such eligible professional, each successive year
immediately following the first payment year for such
professional.
‘‘(2) MEANINGFUL EHR USER.—
‘‘(A) IN GENERAL.—For purposes of paragraph (1), an
eligible professional shall be treated as a meaningful EHR
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user for an EHR reporting period for a payment year
(or, for purposes of subsection (a)(7), for an EHR reporting
period under such subsection for a year) if each of the
following requirements is met:
‘‘(i) MEANINGFUL USE OF CERTIFIED EHR TECHNOLOGY.—The eligible professional demonstrates to the
satisfaction of the Secretary, in accordance with
subparagraph (C)(i), that during such period the professional is using certified EHR technology in a meaningful manner, which shall include the use of electronic
prescribing as determined to be appropriate by the
Secretary.
‘‘(ii) INFORMATION EXCHANGE.—The eligible professional demonstrates to the satisfaction of the Secretary,
in accordance with subparagraph (C)(i), that during
such period such certified EHR technology is connected
in a manner that provides, in accordance with law
and standards applicable to the exchange of information, for the electronic exchange of health information
to improve the quality of health care, such as promoting care coordination.
‘‘(iii) REPORTING ON MEASURES USING EHR.—Subject to subparagraph (B)(ii) and using such certified
EHR technology, the eligible professional submits
information for such period, in a form and manner
specified by the Secretary, on such clinical quality
measures and such other measures as selected by the
Secretary under subparagraph (B)(i).
The Secretary may provide for the use of alternative means
for meeting the requirements of clauses (i), (ii), and (iii)
in the case of an eligible professional furnishing covered
professional services in a group practice (as defined by
the Secretary). The Secretary shall seek to improve the
use of electronic health records and health care quality
over time by requiring more stringent measures of meaningful use selected under this paragraph.
‘‘(B) REPORTING ON MEASURES.—
‘‘(i) SELECTION.—The Secretary shall select measures for purposes of subparagraph (A)(iii) but only
consistent with the following:
‘‘(I) The Secretary shall provide preference to
clinical quality measures that have been endorsed
by the entity with a contract with the Secretary
under section 1890(a).
‘‘(II) Prior to any measure being selected under
this subparagraph, the Secretary shall publish in
the Federal Register such measure and provide
for a period of public comment on such measure.
‘‘(ii) LIMITATION.—The Secretary may not require
the electronic reporting of information on clinical
quality measures under subparagraph (A)(iii) unless
the Secretary has the capacity to accept the information electronically, which may be on a pilot basis.
‘‘(iii) COORDINATION OF REPORTING OF INFORMATION.—In selecting such measures, and in establishing
the form and manner for reporting measures under
subparagraph (A)(iii), the Secretary shall seek to avoid
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redundant or duplicative reporting otherwise required,
including reporting under subsection (k)(2)(C).
‘‘(C) DEMONSTRATION OF MEANINGFUL USE OF CERTIFIED
EHR TECHNOLOGY AND INFORMATION EXCHANGE.—
‘‘(i) IN GENERAL.—A professional may satisfy the
demonstration requirement of clauses (i) and (ii) of
subparagraph (A) through means specified by the Secretary, which may include—
‘‘(I) an attestation;
‘‘(II) the submission of claims with appropriate
coding (such as a code indicating that a patient
encounter was documented using certified EHR
technology);
‘‘(III) a survey response;
‘‘(IV) reporting under subparagraph (A)(iii);
and
‘‘(V) other means specified by the Secretary.
‘‘(ii) USE OF PART D DATA.—Notwithstanding sections 1860D–15(d)(2)(B) and 1860D–15(f)(2), the Secretary may use data regarding drug claims submitted
for purposes of section 1860D–15 that are necessary
for purposes of subparagraph (A).
‘‘(3) APPLICATION.—
‘‘(A) PHYSICIAN REPORTING SYSTEM RULES.—Paragraphs
(5), (6), and (8) of subsection (k) shall apply for purposes
of this subsection in the same manner as they apply for
purposes of such subsection.
‘‘(B) COORDINATION WITH OTHER PAYMENTS.—The provisions of this subsection shall not be taken into account
in applying the provisions of subsection (m) of this section
and of section 1833(m) and any payment under such provisions shall not be taken into account in computing allowable charges under this subsection.
‘‘(C) LIMITATIONS ON REVIEW.—There shall be no
administrative or judicial review under section 1869, section 1878, or otherwise, of—
‘‘(i) the methodology and standards for determining
payment amounts under this subsection and payment
adjustments under subsection (a)(7)(A), including the
limitation under paragraph (1)(B) and coordination
under clauses (ii) and (iii) of paragraph (1)(D);
‘‘(ii) the methodology and standards for determining a meaningful EHR user under paragraph (2),
including selection of measures under paragraph (2)(B),
specification of the means of demonstrating meaningful
EHR use under paragraph (2)(C), and the hardship
exception under subsection (a)(7)(B);
‘‘(iii) the methodology and standards for determining a hospital-based eligible professional under
paragraph (1)(C); and
‘‘(iv) the specification of reporting periods under
paragraph (5) and the selection of the form of payment
under paragraph (1)(D)(i).
‘‘(D) POSTING ON WEBSITE.—The Secretary shall post
on the Internet website of the Centers for Medicare &
Medicaid Services, in an easily understandable format, a
list of the names, business addresses, and business phone
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123 STAT. 472
PUBLIC LAW 111–5—FEB. 17, 2009
numbers of the eligible professionals who are meaningful
EHR users and, as determined appropriate by the Secretary, of group practices receiving incentive payments
under paragraph (1).
‘‘(4) CERTIFIED EHR TECHNOLOGY DEFINED.—For purposes
of this section, the term ‘certified EHR technology’ means a
qualified electronic health record (as defined in section 3000(13)
of the Public Health Service Act) that is certified pursuant
to section 3001(c)(5) of such Act as meeting standards adopted
under section 3004 of such Act that are applicable to the
type of record involved (as determined by the Secretary, such
as an ambulatory electronic health record for office-based physicians or an inpatient hospital electronic health record for hospitals).
‘‘(5) DEFINITIONS.—For purposes of this subsection:
‘‘(A) COVERED PROFESSIONAL SERVICES.—The term ‘covered professional services’ has the meaning given such
term in subsection (k)(3).
‘‘(B) EHR REPORTING PERIOD.—The term ‘EHR
reporting period’ means, with respect to a payment year,
any period (or periods) as specified by the Secretary.
‘‘(C) ELIGIBLE PROFESSIONAL.—The term ‘eligible
professional’ means a physician, as defined in section
1861(r).’’.
(b) INCENTIVE PAYMENT ADJUSTMENT.—Section 1848(a) of the
Social Security Act (42 U.S.C. 1395w–4(a)) is amended by adding
at the end the following new paragraph:
‘‘(7) INCENTIVES FOR MEANINGFUL USE OF CERTIFIED EHR
TECHNOLOGY.—
‘‘(A) ADJUSTMENT.—
‘‘(i) IN GENERAL.—Subject to subparagraphs (B)
and (D), with respect to covered professional services
furnished by an eligible professional during 2015 or
any subsequent payment year, if the eligible professional is not a meaningful EHR user (as determined
under subsection (o)(2)) for an EHR reporting period
for the year, the fee schedule amount for such services
furnished by such professional during the year
(including the fee schedule amount for purposes of
determining a payment based on such amount) shall
be equal to the applicable percent of the fee schedule
amount that would otherwise apply to such services
under this subsection (determined after application of
paragraph (3) but without regard to this paragraph).
‘‘(ii) APPLICABLE PERCENT.—Subject to clause (iii),
for purposes of clause (i), the term ‘applicable percent’
means—
‘‘(I) for 2015, 99 percent (or, in the case of
an eligible professional who was subject to the
application of the payment adjustment under section 1848(a)(5) for 2014, 98 percent);
‘‘(II) for 2016, 98 percent; and
‘‘(III) for 2017 and each subsequent year, 97
percent.
‘‘(iii) AUTHORITY TO DECREASE APPLICABLE
PERCENTAGE FOR 2018 AND SUBSEQUENT YEARS.—For
2018 and each subsequent year, if the Secretary finds
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123 STAT. 473
that the proportion of eligible professionals who are
meaningful EHR users (as determined under subsection (o)(2)) is less than 75 percent, the applicable
percent shall be decreased by 1 percentage point from
the applicable percent in the preceding year, but in
no case shall the applicable percent be less than 95
percent.
‘‘(B) SIGNIFICANT HARDSHIP EXCEPTION.—The Secretary
may, on a case-by-case basis, exempt an eligible professional from the application of the payment adjustment
under subparagraph (A) if the Secretary determines, subject to annual renewal, that compliance with the requirement for being a meaningful EHR user would result in
a significant hardship, such as in the case of an eligible
professional who practices in a rural area without sufficient
Internet access. In no case may an eligible professional
be granted an exemption under this subparagraph for more
than 5 years.
‘‘(C) APPLICATION OF PHYSICIAN REPORTING SYSTEM
RULES.—Paragraphs (5), (6), and (8) of subsection (k) shall
apply for purposes of this paragraph in the same manner
as they apply for purposes of such subsection.
‘‘(D) NON-APPLICATION TO HOSPITAL-BASED ELIGIBLE
PROFESSIONALS.—No payment adjustment may be made
under subparagraph (A) in the case of hospital-based
eligible professionals (as defined in subsection (o)(1)(C)(ii)).
‘‘(E) DEFINITIONS.—For purposes of this paragraph:
‘‘(i) COVERED PROFESSIONAL SERVICES.—The term
‘covered professional services’ has the meaning given
such term in subsection (k)(3).
‘‘(ii) EHR REPORTING PERIOD.—The term ‘EHR
reporting period’ means, with respect to a year, a
period (or periods) specified by the Secretary.
‘‘(iii) ELIGIBLE PROFESSIONAL.—The term ‘eligible
professional’ means a physician, as defined in section
1861(r).’’.
(c) APPLICATION TO CERTAIN MA-AFFILIATED ELIGIBLE PROFESSIONALS.—Section 1853 of the Social Security Act (42 U.S.C. 1395w–
23) is amended by adding at the end the following new subsection:
‘‘(l) APPLICATION OF ELIGIBLE PROFESSIONAL INCENTIVES FOR
CERTAIN MA ORGANIZATIONS FOR ADOPTION AND MEANINGFUL USE
OF CERTIFIED EHR TECHNOLOGY.—
‘‘(1) IN GENERAL.—Subject to paragraphs (3) and (4), in
the case of a qualifying MA organization, the provisions of
sections 1848(o) and 1848(a)(7) shall apply with respect to
eligible professionals described in paragraph (2) of the organization who the organization attests under paragraph (6) to be
meaningful EHR users in a similar manner as they apply
to eligible professionals under such sections. Incentive payments under paragraph (3) shall be made to and payment
adjustments under paragraph (4) shall apply to such qualifying
organizations.
‘‘(2) ELIGIBLE PROFESSIONAL DESCRIBED.—With respect to
a qualifying MA organization, an eligible professional described
in this paragraph is an eligible professional (as defined for
purposes of section 1848(o)) who—
‘‘(A)(i) is employed by the organization; or
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123 STAT. 474
‘‘(ii)(I) is employed by, or is a partner of, an entity
that through contract with the organization furnishes at
least 80 percent of the entity’s Medicare patient care services to enrollees of such organization; and
‘‘(II) furnishes at least 80 percent of the professional
services of the eligible professional covered under this title
to enrollees of the organization; and
‘‘(B) furnishes, on average, at least 20 hours per week
of patient care services.
‘‘(3) ELIGIBLE PROFESSIONAL INCENTIVE PAYMENTS.—
‘‘(A) IN GENERAL.—In applying section 1848(o) under
paragraph (1), instead of the additional payment amount
under section 1848(o)(1)(A) and subject to subparagraph
(B), the Secretary may substitute an amount determined
by the Secretary to the extent feasible and practical to
be similar to the estimated amount in the aggregate that
would be payable if payment for services furnished by
such professionals was payable under part B instead of
this part.
‘‘(B) AVOIDING DUPLICATION OF PAYMENTS.—
‘‘(i) IN GENERAL.—In the case of an eligible professional described in paragraph (2)—
‘‘(I) that is eligible for the maximum incentive
payment under section 1848(o)(1)(A) for the same
payment period, the payment incentive shall be
made only under such section and not under this
subsection; and
‘‘(II) that is eligible for less than such maximum incentive payment for the same payment
period, the payment incentive shall be made only
under this subsection and not under section
1848(o)(1)(A).
‘‘(ii) METHODS.—In the case of an eligible professional described in paragraph (2) who is eligible for
an incentive payment under section 1848(o)(1)(A) but
is not described in clause (i) for the same payment
period, the Secretary shall develop a process—
‘‘(I) to ensure that duplicate payments are not
made with respect to an eligible professional both
under this subsection and under section
1848(o)(1)(A); and
‘‘(II) to collect data from Medicare Advantage
organizations to ensure against such duplicate payments.
‘‘(C) FIXED SCHEDULE FOR APPLICATION OF LIMITATION
ON INCENTIVE PAYMENTS FOR ALL ELIGIBLE PROFESSIONALS.—In applying section 1848(o)(1)(B)(ii) under
subparagraph (A), in accordance with rules specified by
the Secretary, a qualifying MA organization shall specify
a year (not earlier than 2011) that shall be treated as
the first payment year for all eligible professionals with
respect to such organization.
‘‘(4) PAYMENT ADJUSTMENT.—
‘‘(A) IN GENERAL.—In applying section 1848(a)(7) under
paragraph (1), instead of the payment adjustment being
an applicable percent of the fee schedule amount for a
year under such section, subject to subparagraph (D), the
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payment adjustment under paragraph (1) shall be equal
to the percent specified in subparagraph (B) for such year
of the payment amount otherwise provided under this section for such year.
‘‘(B) SPECIFIED PERCENT.—The percent specified under
this subparagraph for a year is 100 percent minus a
number of percentage points equal to the product of—
‘‘(i) the number of percentage points by which the
applicable percent (under section 1848(a)(7)(A)(ii)) for
the year is less than 100 percent; and
‘‘(ii) the Medicare physician expenditure proportion
specified in subparagraph (C) for the year.
‘‘(C) MEDICARE PHYSICIAN EXPENDITURE PROPORTION.—
The Medicare physician expenditure proportion under this
subparagraph for a year is the Secretary’s estimate of
the proportion, of the expenditures under parts A and
B that are not attributable to this part, that are attributable to expenditures for physicians’ services.
‘‘(D) APPLICATION OF PAYMENT ADJUSTMENT.—In the
case that a qualifying MA organization attests that not
all eligible professionals of the organization are meaningful
EHR users with respect to a year, the Secretary shall
apply the payment adjustment under this paragraph based
on the proportion of all such eligible professionals of the
organization that are not meaningful EHR users for such
year.
‘‘(5) QUALIFYING MA ORGANIZATION DEFINED.—In this subsection and subsection (m), the term ‘qualifying MA organization’ means a Medicare Advantage organization that is organized as a health maintenance organization (as defined in section 2791(b)(3) of the Public Health Service Act).
‘‘(6) MEANINGFUL EHR USER ATTESTATION.—For purposes
of this subsection and subsection (m), a qualifying MA organization shall submit an attestation, in a form and manner specified
by the Secretary which may include the submission of such
attestation as part of submission of the initial bid under section
1854(a)(1)(A)(iv), identifying—
‘‘(A) whether each eligible professional described in
paragraph (2), with respect to such organization is a meaningful EHR user (as defined in section 1848(o)(2)) for a
year specified by the Secretary; and
‘‘(B) whether each eligible hospital described in subsection (m)(1), with respect to such organization, is a meaningful EHR user (as defined in section 1886(n)(3)) for an
applicable period specified by the Secretary.
‘‘(7) POSTING ON WEBSITE.—The Secretary shall post on
the Internet website of the Centers for Medicare & Medicaid
Services, in an easily understandable format, a list of the
names, business addresses, and business phone numbers of—
‘‘(A) each qualifying MA organization receiving an
incentive payment under this subsection for eligible professionals of the organization; and
‘‘(B) the eligible professionals of such organization for
which such incentive payment is based.
‘‘(8) LIMITATION ON REVIEW.—There shall be no administrative or judicial review under section 1869, section 1878, or
otherwise, of—
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‘‘(A) the methodology and standards for determining
payment amounts and payment adjustments under this
subsection, including avoiding duplication of payments
under paragraph (3)(B) and the specification of rules for
the fixed schedule for application of limitation on incentive
payments for all eligible professionals under paragraph
(3)(C);
‘‘(B) the methodology and standards for determining
eligible professionals under paragraph (2); and
‘‘(C) the methodology and standards for determining
a meaningful EHR user under section 1848(o)(2), including
specification of the means of demonstrating meaningful
EHR use under section 1848(o)(3)(C) and selection of measures under section 1848(o)(3)(B).’’.
(d) STUDY AND REPORT RELATING TO MA ORGANIZATIONS.—
(1) STUDY.—The Secretary of Health and Human Services
shall conduct a study on the extent to which and manner
in which payment incentives and adjustments (such as under
sections 1848(o) and 1848(a)(7) of the Social Security Act) could
be made available to professionals, as defined in 1861(r), who
are not eligible for HIT incentive payments under section
1848(o) and receive payments for Medicare patient services
nearly-exclusively through contractual arrangements with one
or more Medicare Advantage organizations, or an intermediary
organization or organizations with contracts with Medicare
Advantage organizations. Such study shall assess approaches
for measuring meaningful use of qualified EHR technology
among such professionals and mechanisms for delivering incentives and adjustments to those professionals, including through
incentive payments and adjustments through Medicare Advantage organizations or intermediary organizations.
(2) REPORT.—Not later than 120 days after the date of
the enactment of this Act, the Secretary of Health and Human
Services shall submit to Congress a report on the findings
and the conclusions of the study conducted under paragraph
(1), together with recommendations for such legislation and
administrative action as the Secretary determines appropriate.
(e) CONFORMING AMENDMENTS.—Section 1853 of the Social
Security Act (42 U.S.C. 1395w–23) is amended—
(1) in subsection (a)(1)(A), by striking ‘‘and (i)’’ and inserting
‘‘(i), and (l)’’;
(2) in subsection (c)—
(A) in paragraph (1)(D)(i), by striking ‘‘section 1886(h)’’
and inserting ‘‘sections 1848(o) and 1886(h)’’; and
(B) in paragraph (6)(A), by inserting after ‘‘under part
B,’’ the following: ‘‘excluding expenditures attributable to
subsections (a)(7) and (o) of section 1848,’’; and
(3) in subsection (f), by inserting ‘‘and for payments under
subsection (l)’’ after ‘‘with the organization’’.
(f) CONFORMING AMENDMENTS TO E-PRESCRIBING.—
(1) Section 1848(a)(5)(A) of the Social Security Act (42
U.S.C. 1395w–4(a)(5)(A)) is amended—
(A) in clause (i), by striking ‘‘or any subsequent year’’
and inserting ‘‘, 2013 or 2014’’; and
(B) in clause (ii), by striking ‘‘and each subsequent
year’’.
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123 STAT. 477
(2) Section 1848(m)(2) of such Act (42 U.S.C. 1395w–
4(m)(2)) is amended—
(A) in subparagraph (A), by striking ‘‘For 2009’’ and
inserting ‘‘Subject to subparagraph (D), for 2009’’; and
(B) by adding at the end the following new subparagraph:
‘‘(D) LIMITATION WITH RESPECT TO EHR INCENTIVE PAYMENTS.—The provisions of this paragraph shall not apply
to an eligible professional (or, in the case of a group practice
under paragraph (3)(C), to the group practice) if, for the
EHR reporting period the eligible professional (or group
practice) receives an incentive payment under subsection
(o)(1)(A) with respect to a certified EHR technology (as
defined in subsection (o)(4)) that has the capability of electronic prescribing.’’.
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SEC. 4102. INCENTIVES FOR HOSPITALS.
(a) INCENTIVE PAYMENT.—
(1) IN GENERAL.—Section 1886 of the Social Security Act
(42 U.S.C. 1395ww) is amended by adding at the end the
following new subsection:
‘‘(n) INCENTIVES FOR ADOPTION AND MEANINGFUL USE OF CERTIFIED EHR TECHNOLOGY.—
‘‘(1) IN GENERAL.—Subject to the succeeding provisions of
this subsection, with respect to inpatient hospital services furnished by an eligible hospital during a payment year (as defined
in paragraph (2)(G)), if the eligible hospital is a meaningful
EHR user (as determined under paragraph (3)) for the EHR
reporting period with respect to such year, in addition to the
amount otherwise paid under this section, there also shall
be paid to the eligible hospital, from the Federal Hospital
Insurance Trust Fund established under section 1817, an
amount equal to the applicable amount specified in paragraph
(2)(A) for the hospital for such payment year.
‘‘(2) PAYMENT AMOUNT.—
‘‘(A) IN GENERAL.—Subject to the succeeding subparagraphs of this paragraph, the applicable amount specified
in this subparagraph for an eligible hospital for a payment
year is equal to the product of the following:
‘‘(i) INITIAL AMOUNT.—The sum of—
‘‘(I) the base amount specified in subparagraph
(B); plus
‘‘(II) the discharge related amount specified
in subparagraph (C) for a 12-month period selected
by the Secretary with respect to such payment
year.
‘‘(ii) MEDICARE SHARE.—The Medicare share as
specified in subparagraph (D) for the eligible hospital
for a period selected by the Secretary with respect
to such payment year.
‘‘(iii) TRANSITION FACTOR.—The transition factor
specified in subparagraph (E) for the eligible hospital
for the payment year.
‘‘(B) BASE AMOUNT.—The base amount specified in this
subparagraph is $2,000,000.
‘‘(C) DISCHARGE RELATED AMOUNT.—The discharge
related amount specified in this subparagraph for a 12-
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123 STAT. 478
month period selected by the Secretary shall be determined
as the sum of the amount, estimated based upon total
discharges for the eligible hospital (regardless of any source
of payment) for the period, for each discharge up to the
23,000th discharge as follows:
‘‘(i) For the first through 1,149th discharge, $0.
‘‘(ii) For the 1,150th through the 23,000th discharge, $200.
‘‘(iii) For any discharge greater than the 23,000th,
$0.
‘‘(D) MEDICARE SHARE.—The Medicare share specified
under this subparagraph for an eligible hospital for a period
selected by the Secretary for a payment year is equal
to the fraction—
‘‘(i) the numerator of which is the sum (for such
period and with respect to the eligible hospital) of—
‘‘(I) the estimated number of inpatient-beddays (as established by the Secretary) which are
attributable to individuals with respect to whom
payment may be made under part A; and
‘‘(II) the estimated number of inpatient-beddays (as so established) which are attributable
to individuals who are enrolled with a Medicare
Advantage organization under part C; and
‘‘(ii) the denominator of which is the product of—
‘‘(I) the estimated total number of inpatientbed-days with respect to the eligible hospital
during such period; and
‘‘(II) the estimated total amount of the eligible
hospital’s charges during such period, not
including any charges that are attributable to
charity care (as such term is used for purposes
of hospital cost reporting under this title), divided
by the estimated total amount of the hospital’s
charges during such period.
Insofar as the Secretary determines that data are not available on charity care necessary to calculate the portion
of the formula specified in clause (ii)(II), the Secretary
shall use data on uncompensated care and may adjust
such data so as to be an appropriate proxy for charity
care including a downward adjustment to eliminate bad
debt data from uncompensated care data. In the absence
of the data necessary, with respect to a hospital, for the
Secretary to compute the amount described in clause (ii)(II),
the amount under such clause shall be deemed to be 1.
In the absence of data, with respect to a hospital, necessary
to compute the amount described in clause (i)(II), the
amount under such clause shall be deemed to be 0.
‘‘(E) TRANSITION FACTOR SPECIFIED.—
‘‘(i) IN GENERAL.—Subject to clause (ii), the transition factor specified in this subparagraph for an eligible
hospital for a payment year is as follows:
‘‘(I) For the first payment year for such hospital, 1.
‘‘(II) For the second payment year for such
hospital, 3⁄4.
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123 STAT. 479
‘‘(III) For the third payment year for such
hospital, 1⁄2.
‘‘(IV) For the fourth payment year for such
hospital, 1⁄4.
‘‘(V) For any succeeding payment year for such
hospital, 0.
‘‘(ii) PHASE DOWN FOR ELIGIBLE HOSPITALS FIRST
ADOPTING EHR AFTER 2013.—If the first payment year
for an eligible hospital is after 2013, then the transition
factor specified in this subparagraph for a payment
year for such hospital is the same as the amount
specified in clause (i) for such payment year for an
eligible hospital for which the first payment year is
2013. If the first payment year for an eligible hospital
is after 2015 then the transition factor specified in
this subparagraph for such hospital and for such year
and any subsequent year shall be 0.
‘‘(F) FORM OF PAYMENT.—The payment under this subsection for a payment year may be in the form of a single
consolidated payment or in the form of such periodic installments as the Secretary may specify.
‘‘(G) PAYMENT YEAR DEFINED.—
‘‘(i) IN GENERAL.—For purposes of this subsection,
the term ‘payment year’ means a fiscal year beginning
with fiscal year 2011.
‘‘(ii) FIRST, SECOND, ETC. PAYMENT YEAR.—The
term ‘first payment year’ means, with respect to
inpatient hospital services furnished by an eligible hospital, the first fiscal year for which an incentive payment is made for such services under this subsection.
The terms ‘second payment year’, ‘third payment year’,
and ‘fourth payment year’ mean, with respect to an
eligible hospital, each successive year immediately following the first payment year for that hospital.
‘‘(3) MEANINGFUL EHR USER.—
‘‘(A) IN GENERAL.—For purposes of paragraph (1), an
eligible hospital shall be treated as a meaningful EHR
user for an EHR reporting period for a payment year
(or, for purposes of subsection (b)(3)(B)(ix), for an EHR
reporting period under such subsection for a fiscal year)
if each of the following requirements are met:
‘‘(i) MEANINGFUL USE OF CERTIFIED EHR TECHNOLOGY.—The eligible hospital demonstrates to the
satisfaction of the Secretary, in accordance with
subparagraph (C)(i), that during such period the hospital is using certified EHR technology in a meaningful
manner.
‘‘(ii) INFORMATION EXCHANGE.—The eligible hospital demonstrates to the satisfaction of the Secretary,
in accordance with subparagraph (C)(i), that during
such period such certified EHR technology is connected
in a manner that provides, in accordance with law
and standards applicable to the exchange of information, for the electronic exchange of health information
to improve the quality of health care, such as promoting care coordination.
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‘‘(iii) REPORTING ON MEASURES USING EHR.—Subject to subparagraph (B)(ii) and using such certified
EHR technology, the eligible hospital submits information for such period, in a form and manner specified
by the Secretary, on such clinical quality measures
and such other measures as selected by the Secretary
under subparagraph (B)(i).
The Secretary shall seek to improve the use of electronic
health records and health care quality over time by
requiring more stringent measures of meaningful use
selected under this paragraph.
‘‘(B) REPORTING ON MEASURES.—
‘‘(i) SELECTION.—The Secretary shall select measures for purposes of subparagraph (A)(iii) but only
consistent with the following:
‘‘(I) The Secretary shall provide preference to
clinical quality measures that have been selected
for purposes of applying subsection (b)(3)(B)(viii)
or that have been endorsed by the entity with
a contract with the Secretary under section
1890(a).
‘‘(II) Prior to any measure (other than a clinical quality measure that has been selected for
purposes of applying subsection (b)(3)(B)(viii))
being selected under this subparagraph, the Secretary shall publish in the Federal Register such
measure and provide for a period of public comment on such measure.
‘‘(ii) LIMITATIONS.—The Secretary may not require
the electronic reporting of information on clinical
quality measures under subparagraph (A)(iii) unless
the Secretary has the capacity to accept the information electronically, which may be on a pilot basis.
‘‘(iii) COORDINATION OF REPORTING OF INFORMATION.—In selecting such measures, and in establishing
the form and manner for reporting measures under
subparagraph (A)(iii), the Secretary shall seek to avoid
redundant or duplicative reporting with reporting
otherwise required, including reporting under subsection (b)(3)(B)(viii).
‘‘(C) DEMONSTRATION OF MEANINGFUL USE OF CERTIFIED
EHR TECHNOLOGY AND INFORMATION EXCHANGE.—
‘‘(i) IN GENERAL.—An eligible hospital may satisfy
the demonstration requirement of clauses (i) and (ii)
of subparagraph (A) through means specified by the
Secretary, which may include—
‘‘(I) an attestation;
‘‘(II) the submission of claims with appropriate
coding (such as a code indicating that inpatient
care was documented using certified EHR technology);
‘‘(III) a survey response;
‘‘(IV) reporting under subparagraph (A)(iii);
and
‘‘(V) other means specified by the Secretary.
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‘‘(ii) USE OF PART D DATA.—Notwithstanding sections 1860D–15(d)(2)(B) and 1860D–15(f)(2), the Secretary may use data regarding drug claims submitted
for purposes of section 1860D–15 that are necessary
for purposes of subparagraph (A).
‘‘(4) APPLICATION.—
‘‘(A) LIMITATIONS ON REVIEW.—There shall be no
administrative or judicial review under section 1869, section 1878, or otherwise, of—
‘‘(i) the methodology and standards for determining
payment amounts under this subsection and payment
adjustments under subsection (b)(3)(B)(ix), including
selection of periods under paragraph (2) for determining, and making estimates or using proxies of,
discharges under paragraph (2)(C) and inpatient-beddays, hospital charges, charity charges, and Medicare
share under paragraph (2)(D);
‘‘(ii) the methodology and standards for determining a meaningful EHR user under paragraph (3),
including selection of measures under paragraph (3)(B),
specification of the means of demonstrating meaningful
EHR use under paragraph (3)(C), and the hardship
exception under subsection (b)(3)(B)(ix)(II); and
‘‘(iii) the specification of EHR reporting periods
under paragraph (6)(B) and the selection of the form
of payment under paragraph (2)(F).
‘‘(B) POSTING ON WEBSITE.—The Secretary shall post
on the Internet website of the Centers for Medicare &
Medicaid Services, in an easily understandable format, a
list of the names of the eligible hospitals that are meaningful EHR users under this subsection or subsection
(b)(3)(B)(ix) (and a list of the names of critical access hospitals to which paragraph (3) or (4) of section 1814(l)
applies), and other relevant data as determined appropriate
by the Secretary. The Secretary shall ensure that an
eligible hospital (or critical access hospital) has the opportunity to review the other relevant data that are to be
made public with respect to the hospital (or critical access
hospital) prior to such data being made public.
‘‘(5) CERTIFIED EHR TECHNOLOGY DEFINED.—The term ‘certified EHR technology’ has the meaning given such term in
section 1848(o)(4).
‘‘(6) DEFINITIONS.—For purposes of this subsection:
‘‘(A) EHR REPORTING PERIOD.—The term ‘EHR
reporting period’ means, with respect to a payment year,
any period (or periods) as specified by the Secretary.
‘‘(B) ELIGIBLE HOSPITAL.—The term ‘eligible hospital’
means a subsection (d) hospital.’’.
(2) CRITICAL ACCESS HOSPITALS.—Section 1814(l) of the
Social Security Act (42 U.S.C. 1395f(l)) is amended—
(A) in paragraph (1), by striking ‘‘paragraph (2)’’ and
inserting ‘‘the subsequent paragraphs of this subsection’’;
and
(B) by adding at the end the following new paragraph:
‘‘(3)(A) The following rules shall apply in determining payment
and reasonable costs under paragraph (1) for costs described in
subparagraph (C) for a critical access hospital that would be a
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meaningful EHR user (as would be determined under paragraph
(3) of section 1886(n)) for an EHR reporting period for a cost
reporting period beginning during a payment year if such critical
access hospital was treated as an eligible hospital under such
section:
‘‘(i) The Secretary shall compute reasonable costs by
expensing such costs in a single payment year and not depreciating such costs over a period of years (and shall include
as costs with respect to cost reporting periods beginning during
a payment year costs from previous cost reporting periods to
the extent they have not been fully depreciated as of the period
involved).
‘‘(ii) There shall be substituted for the Medicare share
that would otherwise be applied under paragraph (1) a percent
(not to exceed 100 percent) equal to the sum of—
‘‘(I) the Medicare share (as would be specified under
paragraph (2)(D) of section 1886(n)) for such critical access
hospital if such critical access hospital was treated as an
eligible hospital under such section; and
‘‘(II) 20 percentage points.
‘‘(B) The payment under this paragraph with respect to a critical access hospital shall be paid through a prompt interim payment
(subject to reconciliation) after submission and review of such
information (as specified by the Secretary) necessary to make such
payment, including information necessary to apply this paragraph.
In no case may payment under this paragraph be made with respect
to a cost reporting period beginning during a payment year after
2015 and in no case may a critical access hospital receive payment
under this paragraph with respect to more than 4 consecutive
payment years.
‘‘(C) The costs described in this subparagraph are costs for
the purchase of certified EHR technology to which purchase depreciation (excluding interest) would apply if payment was made under
paragraph (1) and not under this paragraph.
‘‘(D) For purposes of this paragraph, paragraph (4), and paragraph (5), the terms ‘certified EHR technology’, ‘eligible hospital’,
‘EHR reporting period’, and ‘payment year’ have the meanings
given such terms in sections 1886(n).’’.
(b) INCENTIVE MARKET BASKET ADJUSTMENT.—
(1) IN GENERAL.—Section 1886(b)(3)(B) of the Social Security Act (42 U.S.C. 1395ww(b)(3)(B)) is amended—
(A) in clause (viii)(I), by inserting ‘‘(or, beginning with
fiscal year 2015, by one-quarter)’’ after ‘‘2.0 percentage
points’’; and
(B) by adding at the end the following new clause:
‘‘(ix)(I) For purposes of clause (i) for fiscal year 2015 and each
subsequent fiscal year, in the case of an eligible hospital (as defined
in subsection (n)(6)(A)) that is not a meaningful EHR user (as
defined in subsection (n)(3)) for an EHR reporting period for such
fiscal year, three-quarters of the applicable percentage increase
otherwise applicable under clause (i) for such fiscal year shall
be reduced by 331⁄3 percent for fiscal year 2015, 662⁄3 percent
for fiscal year 2016, and 100 percent for fiscal year 2017 and
each subsequent fiscal year. Such reduction shall apply only with
respect to the fiscal year involved and the Secretary shall not
take into account such reduction in computing the applicable
percentage increase under clause (i) for a subsequent fiscal year.
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‘‘(II) The Secretary may, on a case-by-case basis, exempt a
subsection (d) hospital from the application of subclause (I) with
respect to a fiscal year if the Secretary determines, subject to
annual renewal, that requiring such hospital to be a meaningful
EHR user during such fiscal year would result in a significant
hardship, such as in the case of a hospital in a rural area without
sufficient Internet access. In no case may a hospital be granted
an exemption under this subclause for more than 5 years.
‘‘(III) For fiscal year 2015 and each subsequent fiscal year,
a State in which hospitals are paid for services under section
1814(b)(3) shall adjust the payments to each subsection (d) hospital
in the State that is not a meaningful EHR user (as defined in
subsection (n)(3)) in a manner that is designed to result in an
aggregate reduction in payments to hospitals in the State that
is equivalent to the aggregate reduction that would have occurred
if payments had been reduced to each subsection (d) hospital in
the State in a manner comparable to the reduction under the
previous provisions of this clause. The State shall report to the
Secretary the methodology it will use to make the payment adjustment under the previous sentence.
‘‘(IV) For purposes of this clause, the term ‘EHR reporting
period’ means, with respect to a fiscal year, any period (or periods)
as specified by the Secretary.’’.
(2) CRITICAL ACCESS HOSPITALS.—Section 1814(l) of the
Social Security Act (42 U.S.C. 1395f(l)), as amended by subsection (a)(2), is further amended by adding at the end the
following new paragraphs:
‘‘(4)(A) Subject to subparagraph (C), for cost reporting periods
beginning in fiscal year 2015 or a subsequent fiscal year, in the
case of a critical access hospital that is not a meaningful EHR
user (as would be determined under paragraph (3) of section 1886(n)
if such critical access hospital was treated as an eligible hospital
under such section) for an EHR reporting period with respect to
such fiscal year, paragraph (1) shall be applied by substituting
the applicable percent under subparagraph (B) for the percent
described in such paragraph (1).
‘‘(B) The percent described in this subparagraph is—
‘‘(i) for fiscal year 2015, 100.66 percent;
‘‘(ii) for fiscal year 2016, 100.33 percent; and
‘‘(iii) for fiscal year 2017 and each subsequent fiscal year,
100 percent.
‘‘(C) The provisions of subclause (II) of section 1886(b)(3)(B)(ix)
shall apply with respect to subparagraph (A) for a critical access
hospital with respect to a cost reporting period beginning in a
fiscal year in the same manner as such subclause applies with
respect to subclause (I) of such section for a subsection (d) hospital
with respect to such fiscal year.
‘‘(5) There shall be no administrative or judicial review under
section 1869, section 1878, or otherwise, of—
‘‘(A) the methodology and standards for determining the
amount of payment and reasonable cost under paragraph (3)
and payment adjustments under paragraph (4), including selection of periods under section 1886(n)(2) for determining, and
making estimates or using proxies of, inpatient-bed-days, hospital charges, charity charges, and Medicare share under
subparagraph (D) of section 1886(n)(2);
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‘‘(B) the methodology and standards for determining a
meaningful EHR user under section 1886(n)(3) as would apply
if the hospital was treated as an eligible hospital under section
1886(n), and the hardship exception under paragraph (4)(C);
‘‘(C) the specification of EHR reporting periods under section 1886(n)(6)(B) as applied under paragraphs (3) and (4);
and
‘‘(D) the identification of costs for purposes of paragraph
(3)(C).’’.
(c) APPLICATION TO CERTAIN MA-AFFILIATED ELIGIBLE HOSPITALS.—Section 1853 of the Social Security Act (42 U.S.C. 1395w–
23), as amended by section 4101(c), is further amended by adding
at the end the following new subsection:
‘‘(m) APPLICATION OF ELIGIBLE HOSPITAL INCENTIVES FOR CERTAIN MA ORGANIZATIONS FOR ADOPTION AND MEANINGFUL USE
OF CERTIFIED EHR TECHNOLOGY.—
‘‘(1) APPLICATION.—Subject to paragraphs (3) and (4), in
the case of a qualifying MA organization, the provisions of
sections 1886(n) and 1886(b)(3)(B)(ix) shall apply with respect
to eligible hospitals described in paragraph (2) of the organization which the organization attests under subsection (l)(6) to
be meaningful EHR users in a similar manner as they apply
to eligible hospitals under such sections. Incentive payments
under paragraph (3) shall be made to and payment adjustments
under paragraph (4) shall apply to such qualifying organizations.
‘‘(2) ELIGIBLE HOSPITAL DESCRIBED.—With respect to a
qualifying MA organization, an eligible hospital described in
this paragraph is an eligible hospital (as defined in section
1886(n)(6)(A)) that is under common corporate governance with
such organization and serves individuals enrolled under an
MA plan offered by such organization.
‘‘(3) ELIGIBLE HOSPITAL INCENTIVE PAYMENTS.—
‘‘(A) IN GENERAL.—In applying section 1886(n)(2) under
paragraph (1), instead of the additional payment amount
under section 1886(n)(2), there shall be substituted an
amount determined by the Secretary to be similar to the
estimated amount in the aggregate that would be payable
if payment for services furnished by such hospitals was
payable under part A instead of this part. In implementing
the previous sentence, the Secretary—
‘‘(i) shall, insofar as data to determine the discharge related amount under section 1886(n)(2)(C) for
an eligible hospital are not available to the Secretary,
use such alternative data and methodology to estimate
such discharge related amount as the Secretary determines appropriate; and
‘‘(ii) shall, insofar as data to determine the medicare share described in section 1886(n)(2)(D) for an
eligible hospital are not available to the Secretary,
use such alternative data and methodology to estimate
such share, which data and methodology may include
use of the inpatient-bed-days (or discharges) with
respect to an eligible hospital during the appropriate
period which are attributable to both individuals for
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whom payment may be made under part A or individuals enrolled in an MA plan under a Medicare Advantage organization under this part as a proportion of
the estimated total number of patient-bed-days (or discharges) with respect to such hospital during such
period.
‘‘(B) AVOIDING DUPLICATION OF PAYMENTS.—
‘‘(i) IN GENERAL.—In the case of a hospital that
for a payment year is an eligible hospital described
in paragraph (2) and for which at least one-third of
their discharges (or bed-days) of Medicare patients for
the year are covered under part A, payment for the
payment year shall be made only under section 1886(n)
and not under this subsection.
‘‘(ii) METHODS.—In the case of a hospital that is
an eligible hospital described in paragraph (2) and
also is eligible for an incentive payment under section
1886(n) but is not described in clause (i) for the same
payment period, the Secretary shall develop a
process—
‘‘(I) to ensure that duplicate payments are not
made with respect to an eligible hospital both
under this subsection and under section 1886(n);
and
‘‘(II) to collect data from Medicare Advantage
organizations to ensure against such duplicate payments.
‘‘(4) PAYMENT ADJUSTMENT.—
‘‘(A) Subject to paragraph (3), in the case of a qualifying
MA organization (as defined in section 1853(l)(5)), if,
according to the attestation of the organization submitted
under subsection (l)(6) for an applicable period, one or
more eligible hospitals (as defined in section 1886(n)(6)(A))
that are under common corporate governance with such
organization and that serve individuals enrolled under a
plan offered by such organization are not meaningful EHR
users (as defined in section 1886(n)(3)) with respect to
a period, the payment amount payable under this section
for such organization for such period shall be the percent
specified in subparagraph (B) for such period of the payment amount otherwise provided under this section for
such period.
‘‘(B) SPECIFIED PERCENT.—The percent specified under
this subparagraph for a year is 100 percent minus a
number of percentage points equal to the product of—
‘‘(i) the number of the percentage point reduction
effected under section 1886(b)(3)(B)(ix)(I) for the period;
and
‘‘(ii) the Medicare hospital expenditure proportion
specified in subparagraph (C) for the year.
‘‘(C) MEDICARE HOSPITAL EXPENDITURE PROPORTION.—
The Medicare hospital expenditure proportion under this
subparagraph for a year is the Secretary’s estimate of
the proportion, of the expenditures under parts A and
B that are not attributable to this part, that are attributable to expenditures for inpatient hospital services.
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‘‘(D) APPLICATION OF PAYMENT ADJUSTMENT.—In the
case that a qualifying MA organization attests that not
all eligible hospitals are meaningful EHR users with
respect to an applicable period, the Secretary shall apply
the payment adjustment under this paragraph based on
a methodology specified by the Secretary, taking into
account the proportion of such eligible hospitals, or discharges from such hospitals, that are not meaningful EHR
users for such period.
‘‘(5) POSTING ON WEBSITE.—The Secretary shall post on
the Internet website of the Centers for Medicare & Medicaid
Services, in an easily understandable format—
‘‘(A) a list of the names, business addresses, and business phone numbers of each qualifying MA organization
receiving an incentive payment under this subsection for
eligible hospitals described in paragraph (2); and
‘‘(B) a list of the names of the eligible hospitals for
which such incentive payment is based.
‘‘(6) LIMITATIONS ON REVIEW.—There shall be no administrative or judicial review under section 1869, section 1878,
or otherwise, of—
‘‘(A) the methodology and standards for determining
payment amounts and payment adjustments under this
subsection, including avoiding duplication of payments
under paragraph (3)(B);
‘‘(B) the methodology and standards for determining
eligible hospitals under paragraph (2); and
‘‘(C) the methodology and standards for determining
a meaningful EHR user under section 1886(n)(3), including
specification of the means of demonstrating meaningful
EHR use under subparagraph (C) of such section and selection of measures under subparagraph (B) of such section.’’.
(d) CONFORMING AMENDMENTS.—
(1) Section 1814(b) of the Social Security Act (42 U.S.C.
1395f(b)) is amended—
(A) in paragraph (3), in the matter preceding subparagraph (A), by inserting ‘‘, subject to section
1886(d)(3)(B)(ix)(III),’’ after ‘‘then’’; and
(B) by adding at the end the following: ‘‘For purposes
of applying paragraph (3), there shall be taken into account
incentive payments, and payment adjustments under subsection (b)(3)(B)(ix) or (n) of section 1886.’’.
(2) Section 1851(i)(1) of the Social Security Act (42 U.S.C.
1395w–21(i)(1)) is amended by striking ‘‘and 1886(h)(3)(D)’’ and
inserting ‘‘1886(h)(3)(D), and 1853(m)’’.
(3) Section 1853 of the Social Security Act (42 U.S.C.
1395w–23), as amended by section 4101(d), is amended—
(A) in subsection (c)—
(i) in paragraph (1)(D)(i), by striking ‘‘1848(o)’’ and
inserting ‘‘, 1848(o), and 1886(n)’’; and
(ii) in paragraph (6)(A), by inserting ‘‘and subsections (b)(3)(B)(ix) and (n) of section 1886’’ after ‘‘section 1848’’; and
(B) in subsection (f), by inserting ‘‘and subsection (m)’’
after ‘‘under subsection (l)’’.
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SEC. 4103. TREATMENT OF PAYMENTS AND SAVINGS; IMPLEMENTATION FUNDING.
(a) PREMIUM HOLD HARMLESS.—
(1) IN GENERAL.—Section 1839(a)(1) of the Social Security
Act (42 U.S.C. 1395r(a)(1)) is amended by adding at the end
the following: ‘‘In applying this paragraph there shall not be
taken into account additional payments under section 1848(o)
and section 1853(l)(3) and the Government contribution under
section 1844(a)(3).’’.
(2) PAYMENT.—Section 1844(a) of such Act (42 U.S.C.
1395w(a)) is amended—
(A) in paragraph (2), by striking the period at the
end and inserting ‘‘; plus’’; and
(B) by adding at the end the following new paragraph:
‘‘(3) a Government contribution equal to the amount of
payment incentives payable under sections 1848(o) and
1853(l)(3).’’.
(b) MEDICARE IMPROVEMENT FUND.—Section 1898 of the Social
Security Act (42 U.S.C. 1395iii), as added by section 7002(a) of
the Supplemental Appropriations Act, 2008 (Public Law 110–252)
and as amended by section 188(a)(2) of the Medicare Improvements
for Patients and Providers Act of 2008 (Public Law 110–275; 122
Stat. 2589) and by section 6 of the QI Program Supplemental
Funding Act of 2008, is amended—
(1) in subsection (a)—
(A) by inserting ‘‘medicare’’ before ‘‘fee-for-service’’; and
(B) by inserting before the period at the end the following: ‘‘including, but not limited to, an increase in the
conversion factor under section 1848(d) to address, in whole
or in part, any projected shortfall in the conversion factor
for 2014 relative to the conversion factor for 2008 and
adjustments to payments for items and services furnished
by providers of services and suppliers under such original
medicare fee-for-service program’’; and
(2) in subsection (b)—
(A) in paragraph (1), by striking ‘‘during fiscal year
2014,’’ and all that follows and inserting the following:
‘‘during—
‘‘(A) fiscal year 2014, $22,290,000,000; and
‘‘(B) fiscal year 2020 and each subsequent fiscal year,
the Secretary’s estimate, as of July 1 of the fiscal year,
of the aggregate reduction in expenditures under this title
during the preceding fiscal year directly resulting from
the reduction in payment amounts under sections
1848(a)(7), 1853(l)(4), 1853(m)(4), and 1886(b)(3)(B)(ix).’’;
and
(B) by adding at the end the following new paragraph:
‘‘(4) NO EFFECT ON PAYMENTS IN SUBSEQUENT YEARS.—
In the case that expenditures from the Fund are applied to,
or otherwise affect, a payment rate for an item or service
under this title for a year, the payment rate for such item
or service shall be computed for a subsequent year as if such
application or effect had never occurred.’’.
(c) IMPLEMENTATION FUNDING.—In addition to funds otherwise
available, out of any funds in the Treasury not otherwise appropriated, there are appropriated to the Secretary of Health and
Human Services for the Center for Medicare & Medicaid Services
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PUBLIC LAW 111–5—FEB. 17, 2009
Program Management Account, $100,000,000 for each of fiscal years
2009 through 2015 and $45,000,000 for fiscal year 2016, which
shall be available for purposes of carrying out the provisions of
(and amendments made by) this subtitle. Amounts appropriated
under this subsection for a fiscal year shall be available until
expended.
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SEC. 4104. STUDIES AND REPORTS ON HEALTH INFORMATION TECHNOLOGY.
(a) STUDY AND REPORT ON APPLICATION OF EHR PAYMENT
INCENTIVES FOR PROVIDERS NOT RECEIVING OTHER INCENTIVE PAYMENTS.—
(1) STUDY.—
(A) IN GENERAL.—The Secretary of Health and Human
Services shall conduct a study to determine the extent
to which and manner in which payment incentives (such
as under title XVIII or XIX of the Social Security Act)
and other funding for purposes of implementing and using
certified EHR technology (as defined in section 1848(o)(4)
of the Social Security Act, as added by section 4101(a))
should be made available to health care providers who
are receiving minimal or no payment incentives or other
funding under this Act, under title XIII of division A,
under title XVIII or XIX of such Act, or otherwise, for
such purposes.
(B) DETAILS OF STUDY.—Such study shall include an
examination of—
(i) the adoption rates of certified EHR technology
by such health care providers;
(ii) the clinical utility of such technology by such
health care providers;
(iii) whether the services furnished by such health
care providers are appropriate for or would benefit
from the use of such technology;
(iv) the extent to which such health care providers
work in settings that might otherwise receive an incentive payment or other funding under this Act, under
title XIII of division A, under title XVIII or XIX of
the Social Security Act, or otherwise;
(v) the potential costs and the potential benefits
of making payment incentives and other funding available to such health care providers; and
(vi) any other issues the Secretary deems to be
appropriate.
(2) REPORT.—Not later than June 30, 2010, the Secretary
shall submit to Congress a report on the findings and conclusions of the study conducted under paragraph (1).
(b) STUDY AND REPORT ON AVAILABILITY OF OPEN SOURCE
HEALTH INFORMATION TECHNOLOGY SYSTEMS.—
(1) STUDY.—
(A) IN GENERAL.—The Secretary of Health and Human
Services shall, in consultation with the Under Secretary
for Health of the Veterans Health Administration, the
Director of the Indian Health Service, the Secretary of
Defense, the Director of the Agency for Healthcare
Research and Quality, the Administrator of the Health
Resources and Services Administration, and the Chairman
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123 STAT. 489
of the Federal Communications Commission, conduct a
study on—
(i) the current availability of open source health
information technology systems to Federal safety net
providers (including small, rural providers);
(ii) the total cost of ownership of such systems
in comparison to the cost of proprietary commercial
products available;
(iii) the ability of such systems to respond to the
needs of, and be applied to, various populations
(including children and disabled individuals); and
(iv) the capacity of such systems to facilitate interoperability.
(B) CONSIDERATIONS.—In conducting the study under
subparagraph (A), the Secretary of Health and Human
Services shall take into account the circumstances of
smaller health care providers, health care providers located
in rural or other medically underserved areas, and safety
net providers that deliver a significant level of health care
to uninsured individuals, Medicaid beneficiaries, SCHIP
beneficiaries, and other vulnerable individuals.
(2) REPORT.—Not later than October 1, 2010, the Secretary
of Health and Human Services shall submit to Congress a
report on the findings and the conclusions of the study conducted under paragraph (1), together with recommendations
for such legislation and administrative action as the Secretary
determines appropriate.
Subtitle B—Medicaid Incentives
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SEC. 4201. MEDICAID PROVIDER HIT ADOPTION AND OPERATION PAYMENTS; IMPLEMENTATION FUNDING.
(a) IN GENERAL.—Section 1903 of the Social Security Act (42
U.S.C. 1396b) is amended—
(1) in subsection (a)(3)—
(A) by striking ‘‘and’’ at the end of subparagraph (D);
(B) by striking ‘‘plus’’ at the end of subparagraph (E)
and inserting ‘‘and’’; and
(C) by adding at the end the following new subparagraph:
‘‘(F)(i) 100 percent of so much of the sums expended
during such quarter as are attributable to payments to
Medicaid providers described in subsection (t)(1) to encourage the adoption and use of certified EHR technology;
and
‘‘(ii) 90 percent of so much of the sums expended during
such quarter as are attributable to payments for reasonable
administrative expenses related to the administration of
payments described in clause (i) if the State meets the
condition described in subsection (t)(9); plus’’; and
(2) by inserting after subsection (s) the following new subsection:
‘‘(t)(1) For purposes of subsection (a)(3)(F), the payments
described in this paragraph to encourage the adoption and use
of certified EHR technology are payments made by the State in
accordance with this subsection —
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Definition.
Applicability.
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‘‘(A) to Medicaid providers described in paragraph (2)(A)
not in excess of 85 percent of net average allowable costs
(as defined in paragraph (3)(E)) for certified EHR technology
(and support services including maintenance and training that
is for, or is necessary for the adoption and operation of, such
technology) with respect to such providers; and
‘‘(B) to Medicaid providers described in paragraph (2)(B)
not in excess of the maximum amount permitted under paragraph (5) for the provider involved.
‘‘(2) In this subsection and subsection (a)(3)(F), the term ‘Medicaid provider’ means—
‘‘(A) an eligible professional (as defined in paragraph
(3)(B))—
‘‘(i) who is not hospital-based and has at least 30
percent of the professional’s patient volume (as estimated
in accordance with a methodology established by the Secretary) attributable to individuals who are receiving medical assistance under this title;
‘‘(ii) who is not described in clause (i), who is a pediatrician, who is not hospital-based, and who has at least 20
percent of the professional’s patient volume (as estimated
in accordance with a methodology established by the Secretary) attributable to individuals who are receiving medical assistance under this title; and
‘‘(iii) who practices predominantly in a Federally qualified health center or rural health clinic and has at least
30 percent of the professional’s patient volume (as estimated in accordance with a methodology established by
the Secretary) attributable to needy individuals (as defined
in paragraph (3)(F)); and
‘‘(B)(i) a children’s hospital, or
‘‘(ii) an acute-care hospital that is not described in clause
(i) and that has at least 10 percent of the hospital’s patient
volume (as estimated in accordance with a methodology established by the Secretary) attributable to individuals who are
receiving medical assistance under this title.
An eligible professional shall not qualify as a Medicaid provider
under this subsection unless any right to payment under sections
1848(o) and 1853(l) with respect to the eligible professional has
been waived in a manner specified by the Secretary. For purposes
of calculating patient volume under subparagraph (A)(iii), insofar
as it is related to uncompensated care, the Secretary may require
the adjustment of such uncompensated care data so that it would
be an appropriate proxy for charity care, including a downward
adjustment to eliminate bad debt data from uncompensated care.
In applying subparagraphs (A) and (B)(ii), the methodology established by the Secretary for patient volume shall include individuals
enrolled in a Medicaid managed care plan (under section 1903(m)
or section 1932).
‘‘(3) In this subsection and subsection (a)(3)(F):
‘‘(A) The term ‘certified EHR technology’ means a qualified
electronic health record (as defined in 3000(13) of the Public
Health Service Act) that is certified pursuant to section
3001(c)(5) of such Act as meeting standards adopted under
section 3004 of such Act that are applicable to the type of
record involved (as determined by the Secretary, such as an
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 491
ambulatory electronic health record for office-based physicians
or an inpatient hospital electronic health record for hospitals).
‘‘(B) The term ‘eligible professional’ means a—
‘‘(i) physician;
‘‘(ii) dentist;
‘‘(iii) certified nurse mid-wife;
‘‘(iv) nurse practitioner; and
‘‘(v) physician assistant insofar as the assistant is practicing in a rural health clinic that is led by a physician
assistant or is practicing in a Federally qualified health
center that is so led.
‘‘(C) The term ‘average allowable costs’ means, with respect
to certified EHR technology of Medicaid providers described
in paragraph (2)(A) for—
‘‘(i) the first year of payment with respect to such
a provider, the average costs for the purchase and initial
implementation or upgrade of such technology (and support
services including training that is for, or is necessary for
the adoption and initial operation of, such technology) for
such providers, as determined by the Secretary based upon
studies conducted under paragraph (4)(C); and
‘‘(ii) a subsequent year of payment with respect to
such a provider, the average costs not described in clause
(i) relating to the operation, maintenance, and use of such
technology for such providers, as determined by the Secretary based upon studies conducted under paragraph
(4)(C).
‘‘(D) The term ‘hospital-based’ means, with respect to an
eligible professional, a professional (such as a pathologist,
anesthesiologist, or emergency physician) who furnishes
substantially all of the individual’s professional services in a
hospital setting (whether inpatient or outpatient) and through
the use of the facilities and equipment, including qualified
electronic health records, of the hospital. The determination
of whether an eligible professional is a hospital-based eligible
professional shall be made on the basis of the site of service
(as defined by the Secretary) and without regard to any employment or billing arrangement between the eligible professional
and any other provider.
‘‘(E) The term ‘net average allowable costs’ means, with
respect to a Medicaid provider described in paragraph (2)(A),
average allowable costs reduced by any payment that is made
to such Medicaid provider from any other source (other than
under this subsection or by a State or local government) that
is directly attributable to payment for certified EHR technology
or support services described in subparagraph (C).
‘‘(F) The term ‘needy individual’ means, with respect to
a Medicaid provider, an individual—
‘‘(i) who is receiving assistance under this title;
‘‘(ii) who is receiving assistance under title XXI;
‘‘(iii) who is furnished uncompensated care by the provider; or
‘‘(iv) for whom charges are reduced by the provider
on a sliding scale basis based on an individual’s ability
to pay.
‘‘(4)(A) With respect to a Medicaid provider described in paragraph (2)(A), subject to subparagraph (B), in no case shall—
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‘‘(i) the net average allowable costs under this subsection for the first year of payment (which may not be
later than 2016), which is intended to cover the costs
described in paragraph (3)(C)(i), exceed $25,000 (or such
lesser amount as the Secretary determines based on studies
conducted under subparagraph (C));
‘‘(ii) the net average allowable costs under this subsection for a subsequent year of payment, which is intended
to cover costs described in paragraph (3)(C)(ii), exceed
$10,000; and
‘‘(iii) payments be made for costs described in clause
(ii) after 2021 or over a period of longer than 5 years.
‘‘(B) In the case of Medicaid provider described in paragraph
(2)(A)(ii), the dollar amounts specified in subparagraph (A) shall
be 2⁄3 of the dollar amounts otherwise specified.
‘‘(C) For the purposes of determining average allowable costs
under this subsection, the Secretary shall study the average costs
to Medicaid providers described in paragraph (2)(A) of purchase
and initial implementation and upgrade of certified EHR technology
described in paragraph (3)(C)(i) and the average costs to such
providers of operations, maintenance, and use of such technology
described in paragraph (3)(C)(ii). In determining such costs for
such providers, the Secretary may utilize studies of such amounts
submitted by States.
‘‘(5)(A) In no case shall the payments described in paragraph
(1)(B) with respect to a Medicaid provider described in paragraph
(2)(B) exceed—
‘‘(i) in the aggregate the product of—
‘‘(I) the overall hospital EHR amount for the provider computed under subparagraph (B); and
‘‘(II) the Medicaid share for such provider computed under subparagraph (C);
‘‘(ii) in any year 50 percent of the product described in
clause (i); and
‘‘(iii) in any 2-year period 90 percent of such product.
‘‘(B) For purposes of this paragraph, the overall hospital EHR
amount, with respect to a Medicaid provider, is the sum of the
applicable amounts specified in section 1886(n)(2)(A) for such provider for the first 4 payment years (as estimated by the Secretary)
determined as if the Medicare share specified in clause (ii) of
such section were 1. The Secretary shall establish, in consultation
with the State, the overall hospital EHR amount for each such
Medicaid provider eligible for payments under paragraph (1)(B).
For purposes of this subparagraph in computing the amounts under
section 1886(n)(2)(C) for payment years after the first payment
year, the Secretary shall assume that in subsequent payment years
discharges increase at the average annual rate of growth of the
most recent 3 years for which discharge data are available per
year.
‘‘(C) The Medicaid share computed under this subparagraph,
for a Medicaid provider for a period specified by the Secretary,
shall be calculated in the same manner as the Medicare share
under section 1886(n)(2)(D) for such a hospital and period, except
that there shall be substituted for the numerator under clause
(i) of such section the amount that is equal to the number of
inpatient-bed-days (as established by the Secretary) which are
attributable to individuals who are receiving medical assistance
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123 STAT. 493
under this title and who are not described in section 1886(n)(2)(D)(i).
In computing inpatient-bed-days under the previous sentence, the
Secretary shall take into account inpatient-bed-days attributable
to inpatient-bed-days that are paid for individuals enrolled in a
Medicaid managed care plan (under section 1903(m) or section
1932).
‘‘(D) In no case may the payments described in paragraph
(1)(B) with respect to a Medicaid provider described in paragraph
(2)(B) be paid—
‘‘(i) for any year beginning after 2016 unless the provider
has been provided payment under paragraph (1)(B) for the
previous year; and
‘‘(ii) over a period of more than 6 years of payment.
‘‘(6) Payments described in paragraph (1) are not in accordance
with this subsection unless the following requirements are met:
‘‘(A)(i) The State provides assurances satisfactory to the
Secretary that amounts received under subsection (a)(3)(F) with
respect to payments to a Medicaid provider are paid, subject
to clause (ii), directly to such provider (or to an employer
or facility to which such provider has assigned payments) without any deduction or rebate.
‘‘(ii) Amounts described in clause (i) may also be paid
to an entity promoting the adoption of certified EHR technology,
as designated by the State, if participation in such a payment
arrangement is voluntary for the eligible professional involved
and if such entity does not retain more than 5 percent of
such payments for costs not related to certified EHR technology
(and support services including maintenance and training) that
is for, or is necessary for the operation of, such technology.
‘‘(B) A Medicaid provider described in paragraph (2)(A)
is responsible for payment of the remaining 15 percent of
the net average allowable cost.
‘‘(C)(i) Subject to clause (ii), with respect to payments to
a Medicaid provider—
‘‘(I) for the first year of payment to the Medicaid provider under this subsection, the Medicaid provider demonstrates that it is engaged in efforts to adopt, implement,
or upgrade certified EHR technology; and
‘‘(II) for a year of payment, other than the first year
of payment to the Medicaid provider under this subsection,
the Medicaid provider demonstrates meaningful use of certified EHR technology through a means that is approved
by the State and acceptable to the Secretary, and that
may be based upon the methodologies applied under section
1848(o) or 1886(n).
‘‘(ii) In the case of a Medicaid provider who has completed
adopting, implementing, or upgrading such technology prior
to the first year of payment to the Medicaid provider under
this subsection, clause (i)(I) shall not apply and clause (i)(II)
shall apply to each year of payment to the Medicaid provider
under this subsection, including the first year of payment.
‘‘(D) To the extent specified by the Secretary, the certified
EHR technology is compatible with State or Federal administrative management systems.
For purposes of subparagraph (B), a Medicaid provider described
in paragraph (2)(A) may accept payments for the costs described
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PUBLIC LAW 111–5—FEB. 17, 2009
in such subparagraph from a State or local government. For purposes of subparagraph (C), in establishing the means described
in such subparagraph, which may include clinical quality reporting
to the State, the State shall ensure that populations with unique
needs, such as children, are appropriately addressed.
‘‘(7) With respect to Medicaid providers described in paragraph
(2)(A), the Secretary shall ensure coordination of payment with
respect to such providers under sections 1848(o) and 1853(l) and
under this subsection to assure no duplication of funding. Such
coordination shall include, to the extent practicable, a data matching
process between State Medicaid agencies and the Centers for Medicare & Medicaid Services using national provider identifiers. For
such purposes, the Secretary may require the submission of such
data relating to payments to such Medicaid providers as the Secretary may specify.
‘‘(8) In carrying out paragraph (6)(C), the State and Secretary
shall seek, to the maximum extent practicable, to avoid duplicative
requirements from Federal and State governments to demonstrate
meaningful use of certified EHR technology under this title and
title XVIII. In doing so, the Secretary may deem satisfaction of
requirements for such meaningful use for a payment year under
title XVIII to be sufficient to qualify as meaningful use under
this subsection. The Secretary may also specify the reporting periods
under this subsection in order to carry out this paragraph.
‘‘(9) In order to be provided Federal financial participation
under subsection (a)(3)(F)(ii), a State must demonstrate to the satisfaction of the Secretary, that the State—
‘‘(A) is using the funds provided for the purposes of administering payments under this subsection, including tracking
of meaningful use by Medicaid providers;
‘‘(B) is conducting adequate oversight of the program under
this subsection, including routine tracking of meaningful use
attestations and reporting mechanisms; and
‘‘(C) is pursuing initiatives to encourage the adoption of
certified EHR technology to promote health care quality and
the exchange of health care information under this title, subject
to applicable laws and regulations governing such exchange.
‘‘(10) The Secretary shall periodically submit reports to the
Committee on Energy and Commerce of the House of Representatives and the Committee on Finance of the Senate on status,
progress, and oversight of payments described in paragraph (1),
including steps taken to carry out paragraph (7). Such reports
shall also describe the extent of adoption of certified EHR technology
among Medicaid providers resulting from the provisions of this
subsection and any improvements in health outcomes, clinical
quality, or efficiency resulting from such adoption.’’.
(b) IMPLEMENTATION FUNDING.—In addition to funds otherwise
available, out of any funds in the Treasury not otherwise appropriated, there are appropriated to the Secretary of Health and
Human Services for the Centers for Medicare & Medicaid Services
Program Management Account, $40,000,000 for each of fiscal years
2009 through 2015 and $20,000,000 for fiscal year 2016, which
shall be available for purposes of carrying out the provisions of
(and the amendments made by) this section. Amounts appropriated
under this subsection for a fiscal year shall be available until
expended.
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Subtitle C—Miscellaneous Medicare
Provisions
SEC. 4301. MORATORIA ON CERTAIN MEDICARE REGULATIONS.
(a) DELAY IN PHASE OUT OF MEDICARE HOSPICE BUDGET NEUADJUSTMENT FACTOR DURING FISCAL YEAR 2009.—Notwithstanding any other provision of law, including the final rule published on August 8, 2008, 73 Federal Register 46464 et seq., relating
to Medicare Program; Hospice Wage Index for Fiscal Year 2009,
the Secretary of Health and Human Services shall not phase out
or eliminate the budget neutrality adjustment factor in the Medicare
hospice wage index before October 1, 2009, and the Secretary shall
recompute and apply the final Medicare hospice wage index for
fiscal year 2009 as if there had been no reduction in the budget
neutrality adjustment factor.
(b) NON-APPLICATION OF PHASED-OUT INDIRECT MEDICAL EDUCATION (IME) ADJUSTMENT FACTOR FOR FISCAL YEAR 2009.—
(1) IN GENERAL.—Section 412.322 of title 42, Code of Federal Regulations, shall be applied without regard to paragraph
(c) of such section, and the Secretary of Health and Human
Services shall recompute payments for discharges occurring
on or after October 1, 2008, as if such paragraph had never
been in effect.
(2) NO EFFECT ON SUBSEQUENT YEARS.—Nothing in paragraph (1) shall be construed as having any effect on the application of paragraph (d) of section 412.322 of title 42, Code of
Federal Regulations.
(c) FUNDING FOR IMPLEMENTATION.—In addition to funds otherwise available, for purposes of implementing the provisions of subsections (a) and (b), including costs incurred in reprocessing claims
in carrying out such provisions, the Secretary of Health and Human
Services shall provide for the transfer from the Federal Hospital
Insurance Trust Fund established under section 1817 of the Social
Security Act (42 U.S.C. 1395i) to the Centers for Medicare & Medicaid Services Program Management Account of $2,000,000 for fiscal
year 2009.
TRALITY
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SEC. 4302. LONG-TERM CARE HOSPITAL TECHNICAL CORRECTIONS.
(a) PAYMENT.—Subsection (c) of section 114 of the Medicare,
Medicaid, and SCHIP Extension Act of 2007 (Public Law 110–
173) is amended—
(1) in paragraph (1)—
(A) by amending the heading to read as follows: ‘‘DELAY
IN APPLICATION OF 25 PERCENT PATIENT THRESHOLD PAYMENT ADJUSTMENT’’;
(B) by striking ‘‘the date of the enactment of this
Act’’ and inserting ‘‘July 1, 2007,’’; and
(C) in subparagraph (A), by inserting ‘‘or to a longterm care hospital, or satellite facility, that as of December
29, 2007, was co-located with an entity that is a providerbased, off-campus location of a subsection (d) hospital which
did not provide services payable under section 1886(d) of
the Social Security Act at the off-campus location’’ after
‘‘freestanding long-term care hospitals’’; and
(2) in paragraph (2)—
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42 USC 1395ww
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PUBLIC LAW 111–5—FEB. 17, 2009
(A) in subparagraph (B)(ii), by inserting ‘‘or that is
described in section 412.22(h)(3)(i) of such title’’ before the
period; and
(B) in subparagraph (C), by striking ‘‘the date of the
enactment of this Act’’ and inserting ‘‘October 1, 2007 (or
July 1, 2007, in the case of a satellite facility described
in section 412.22(h)(3)(i) of title 42, Code of Federal Regulations)’’.
(b) MORATORIUM.—Subsection (d)(3)(A) of such section is
amended by striking ‘‘if the hospital or facility’’ and inserting ‘‘if
the hospital or facility obtained a certificate of need for an increase
in beds that is in a State for which such certificate of need is
required and that was issued on or after April 1, 2005, and before
December 29, 2007, or if the hospital or facility’’.
(c) EFFECTIVE DATE.—The amendments made by this section
shall be effective and apply as if included in the enactment of
the Medicare, Medicaid, and SCHIP Extension Act of 2007 (Public
Law 110–173).
TITLE V—STATE FISCAL RELIEF
SEC. 5000. PURPOSES; TABLE OF CONTENTS.
42 USC 1396a
note.
(a) PURPOSES.—The purposes of this title are as follows:
(1) To provide fiscal relief to States in a period of economic
downturn.
(2) To protect and maintain State Medicaid programs
during a period of economic downturn, including by helping
to avert cuts to provider payment rates and benefits or services,
and to prevent constrictions of income eligibility requirements
for such programs, but not to promote increases in such requirements.
(b) TABLE OF CONTENTS.—The table of contents for this title
is as follows:
TITLE V—STATE FISCAL RELIEF
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
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42 USC 1396d
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5000.
5001.
5002.
5003.
5004.
5005.
5006.
5007.
5008.
Purposes; table of contents.
Temporary increase of Medicaid FMAP.
Temporary increase in DSH allotments during recession.
Extension of moratoria on certain Medicaid final regulations.
Extension of transitional medical assistance (TMA).
Extension of the qualifying individual (QI) program.
Protections for Indians under Medicaid and CHIP.
Funding for oversight and implementation.
GAO study and report regarding State needs during periods of national
economic downturn.
SEC. 5001. TEMPORARY INCREASE OF MEDICAID FMAP.
(a) PERMITTING MAINTENANCE OF FMAP.—Subject to subsections
(e), (f), and (g), if the FMAP determined without regard to this
section for a State for—
(1) fiscal year 2009 is less than the FMAP as so determined
for fiscal year 2008, the FMAP for the State for fiscal year
2008 shall be substituted for the State’s FMAP for fiscal year
2009, before the application of this section;
(2) fiscal year 2010 is less than the FMAP as so determined
for fiscal year 2008 or fiscal year 2009 (after the application
of paragraph (1)), the greater of such FMAP for the State
for fiscal year 2008 or fiscal year 2009 shall be substituted
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123 STAT. 497
for the State’s FMAP for fiscal year 2010, before the application
of this section; and
(3) fiscal year 2011 is less than the FMAP as so determined
for fiscal year 2008, fiscal year 2009 (after the application
of paragraph (1)), or fiscal year 2010 (after the application
of paragraph (2)), the greatest of such FMAP for the State
for fiscal year 2008, fiscal year 2009, or fiscal year 2010 shall
be substituted for the State’s FMAP for fiscal year 2011, before
the application of this section, but only for the first calendar
quarter in fiscal year 2011.
(b) GENERAL 6.2 PERCENTAGE POINT INCREASE.—
(1) IN GENERAL.—Subject to subsections (e), (f), and (g)
and paragraph (2), for each State for calendar quarters during
the recession adjustment period (as defined in subsection (h)(3)),
the FMAP (after the application of subsection (a)) shall be
increased (without regard to any limitation otherwise specified
in section 1905(b) of the Social Security Act (42 U.S.C.
1396d(b))) by 6.2 percentage points.
(2) SPECIAL ELECTION FOR TERRITORIES.—In the case of
a State that is not one of the 50 States or the District of
Columbia, paragraph (1) shall only apply if the State makes
a one-time election, in a form and manner specified by the
Secretary and for the entire recession adjustment period, to
apply the increase in FMAP under paragraph (1) and a 15
percent increase under subsection (d) instead of applying a
30 percent increase under subsection (d).
(c) ADDITIONAL RELIEF BASED ON INCREASE IN UNEMPLOYMENT.—
(1) IN GENERAL.—Subject to subsections (e), (f), and (g),
if a State is a qualifying State under paragraph (2) for a
calendar quarter occurring during the recession adjustment
period, the FMAP for the State shall be further increased
by the number of percentage points equal to the product of—
(A) the State percentage applicable for the State under
section 1905(b) of the Social Security Act (42 U.S.C.
1396d(b)) after the application of subsection (a) and after
the application of 1⁄2 of the increase under subsection (b);
and
(B) the applicable percent determined in paragraph
(3) for the calendar quarter (or, if greater, for a previous
such calendar quarter).
(2) QUALIFYING CRITERIA.—
(A) IN GENERAL.—For purposes of paragraph (1), a
State qualifies for additional relief under this subsection
for a calendar quarter occurring during the recession
adjustment period if the State is 1 of the 50 States or
the District of Columbia and the State satisfies any of
the following criteria for the quarter:
(i) The State unemployment increase percentage
(as defined in paragraph (4)) for the quarter is at
least 1.5 percentage points but less than 2.5 percentage
points.
(ii) The State unemployment increase percentage
for the quarter is at least 2.5 percentage points but
less than 3.5 percentage points.
(iii) The State unemployment increase percentage
for the quarter is at least 3.5 percentage points.
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(B) MAINTENANCE OF STATUS.—If a State qualifies for
additional relief under this subsection for a calendar
quarter, it shall be deemed to have qualified for such
relief for each subsequent calendar quarter ending before
July 1, 2010.
(3) APPLICABLE PERCENT.—
(A) IN GENERAL.—For purposes of paragraph (1), subject to subparagraph (B), the applicable percent is—
(i) 5.5 percent, if the State satisfies the criteria
described in paragraph (2)(A)(i) for the calendar
quarter;
(ii) 8.5 percent if the State satisfies the criteria
described in paragraph (2)(A)(ii) for the calendar
quarter; and
(iii) 11.5 percent if the State satisfies the criteria
described in paragraph (2)(A)(iii) for the calendar
quarter.
(B) MAINTENANCE OF HIGHER APPLICABLE PERCENT.—
(i) HOLD HARMLESS PERIOD.—If the percent applied
to a State under subparagraph (A) for any calendar
quarter in the recession adjustment period beginning
on or after January 1, 2009, and ending before July
1, 2010, (determined without regard to this subparagraph) is less than the percent applied for the preceding quarter (as so determined), the higher
applicable percent shall continue in effect for each
subsequent calendar quarter ending before July 1,
2010.
(ii) NOTICE OF LOWER APPLICABLE PERCENT.—The
Secretary shall notify a State at least 60 days prior
to applying any lower applicable percent to the State
under this paragraph.
(4) COMPUTATION OF STATE UNEMPLOYMENT INCREASE
PERCENTAGE.—
(A) IN GENERAL.—In this subsection, the ‘‘State
unemployment increase percentage’’ for a State for a calendar quarter is equal to the number of percentage points
(if any) by which—
(i) the average monthly unemployment rate for
the State for months in the most recent previous 3consecutive-month period for which data are available,
subject to subparagraph (C); exceeds
(ii) the lowest average monthly unemployment rate
for the State for any 3-consecutive-month period preceding the period described in clause (i) and beginning
on or after January 1, 2006.
(B)
AVERAGE
MONTHLY
UNEMPLOYMENT
RATE
DEFINED.—In this paragraph, the term ‘‘average monthly
unemployment rate’’ means the average of the monthly
number unemployed, divided by the average of the monthly
civilian labor force, seasonally adjusted, as determined
based on the most recent monthly publications of the
Bureau of Labor Statistics of the Department of Labor.
(C) SPECIAL RULE.—With respect to—
(i) the first 2 calendar quarters of the recession
adjustment period, the most recent previous 3-consecutive-month period described in subparagraph (A)(i)
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123 STAT. 499
shall be the 3-consecutive-month period beginning with
October 2008; and
(ii) the last 2 calendar quarters of the recession
adjustment period, the most recent previous 3-consecutive-month period described in such subparagraph shall
be the 3-consecutive-month period beginning with
December 2009, or, if it results in a higher applicable
percent under paragraph (3), the 3-consecutive-month
period beginning with January 2010.
(d) INCREASE IN CAP ON MEDICAID PAYMENTS TO TERRITORIES.—
Subject to subsections (f) and (g), with respect to entire fiscal
years occurring during the recession adjustment period and with
respect to fiscal years only a portion of which occurs during such
period (and in proportion to the portion of the fiscal year that
occurs during such period), the amounts otherwise determined for
Puerto Rico, the Virgin Islands, Guam, the Northern Mariana
Islands, and American Samoa under subsections (f) and (g) of section 1108 of the Social Security Act (42 6 U.S.C. 1308) shall each
be increased by 30 percent (or, in the case of an election under
subsection (b)(2), 15 percent). In the case of such an election by
a territory, subsection (a)(1) of such section shall be applied without
regard to any increase in payment made to the territory under
part E of title IV of such Act that is attributable to the increase
in FMAP effected under subsection (b) for the territory.
(e) SCOPE OF APPLICATION.—The increases in the FMAP for
a State under this section shall apply for purposes of title XIX
of the Social Security Act and shall not apply with respect to—
(1) disproportionate share hospital payments described in
section 1923 of such Act (42 U.S.C. 1396r–4);
(2) payments under title IV of such Act (42 U.S.C. 601
et seq.) (except that the increases under subsections (a) and
(b) shall apply to payments under part E of title IV of such
Act (42 U.S.C. 670 et seq.) and, for purposes of the application
of this section to the District of Columbia, payments under
such part shall be deemed to be made on the basis of the
FMAP applied with respect to such District for purposes of
title XIX and as increased under subsection (b));
(3) payments under title XXI of such Act (42 U.S.C. 1397aa
et seq.);
(4) any payments under title XIX of such Act that are
based on the enhanced FMAP described in section 2105(b)
of such Act (42 U.S.C. 1397ee(b)); or
(5) any payments under title XIX of such Act that are
attributable to expenditures for medical assistance provided
to individuals made eligible under a State plan under title
XIX of the Social Security Act (including under any waiver
under such title or under section 1115 of such Act (42 U.S.C.
1315)) because of income standards (expressed as a percentage
of the poverty line) for eligibility for medical assistance that
are higher than the income standards (as so expressed) for
such eligibility as in effect on July 1, 2008, (including as such
standards were proposed to be in effect under a State law
enacted but not effective as of such date or a State plan amendment or waiver request under title XIX of such Act that was
pending approval on such date).
(f) STATE INELIGIBILITY; LIMITATION; SPECIAL RULES.—
(1) MAINTENANCE OF ELIGIBILITY REQUIREMENTS.—
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123 STAT. 500
PUBLIC LAW 111–5—FEB. 17, 2009
(A) IN GENERAL.—Subject to subparagraphs (B) and
(C), a State is not eligible for an increase in its FMAP
under subsection (a), (b), or (c), or an increase in a cap
amount under subsection (d), if eligibility standards, methodologies, or procedures under its State plan under title
XIX of the Social Security Act (including any waiver under
such title or under section 1115 of such Act (42 U.S.C.
1315)) are more restrictive than the eligibility standards,
methodologies, or procedures, respectively, under such plan
(or waiver) as in effect on July 1, 2008.
(B) STATE REINSTATEMENT OF ELIGIBILITY PERMITTED.—
Subject to subparagraph (C), a State that has restricted
eligibility standards, methodologies, or procedures under
its State plan under title XIX of the Social Security Act
(including any waiver under such title or under section
1115 of such Act (42 U.S.C. 1315)) after July 1, 2008,
is no longer ineligible under subparagraph (A) beginning
with the first calendar quarter in which the State has
reinstated eligibility standards, methodologies, or procedures that are no more restrictive than the eligibility standards, methodologies, or procedures, respectively, under such
plan (or waiver) as in effect on July 1, 2008.
(C) SPECIAL RULES.—A State shall not be ineligible
under subparagraph (A)—
(i) for the calendar quarters before July 1, 2009,
on the basis of a restriction that was applied after
July 1, 2008, and before the date of the enactment
of this Act, if the State prior to July 1, 2009, has
reinstated eligibility standards, methodologies, or
procedures that are no more restrictive than the eligibility standards, methodologies, or procedures, respectively, under such plan (or waiver) as in effect on
July 1, 2008; or
(ii) on the basis of a restriction that was directed
to be made under State law as in effect on July 1,
2008, and would have been in effect as of such date,
but for a delay in the effective date of a waiver under
section 1115 of such Act with respect to such restriction.
(2) COMPLIANCE WITH PROMPT PAY REQUIREMENTS.—
(A) APPLICATION TO PRACTITIONERS.—
(i) IN GENERAL.—Subject to the succeeding provisions of this subparagraph, no State shall be eligible
for an increased FMAP rate as provided under this
section for any claim received by a State from a practitioner subject to the terms of section 1902(a)(37)(A)
of the Social Security Act (42 U.S.C. 1396a(a)(37)(A))
for such days during any period in which that State
has failed to pay claims in accordance with such section
as applied under title XIX of such Act.
(ii) REPORTING REQUIREMENT.—Each State shall
report to the Secretary, on a quarterly basis, its compliance with the requirements of clause (i) as such
requirements pertain to claims made for covered services during each month of the preceding quarter.
(iii) WAIVER AUTHORITY.—The Secretary may
waive the application of clause (i) to a State, or the
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 501
reporting requirement imposed under clause (ii),
during any period in which there are exigent circumstances, including natural disasters, that prevent
the timely processing of claims or the submission of
such a report.
(iv) APPLICATION TO CLAIMS.—Clauses (i) and (ii)
shall only apply to claims made for covered services
after the date of enactment of this Act.
(B) APPLICATION TO NURSING FACILITIES AND HOSPITALS.—
(i) IN GENERAL.—Subject to clause (ii), the provisions of subparagraph (A) shall apply with respect
to a nursing facility or hospital, insofar as it is paid
under title XIX of the Social Security Act on the basis
of submission of claims, in the same or similar manner
(but within the same timeframe) as such provisions
apply to practitioners described in such subparagraph.
(ii) GRACE PERIOD.—Notwithstanding clause (i), no
period of ineligibility shall be imposed against a State
prior to June 1, 2009, on the basis of the State failing
to pay a claim in accordance with such clause.
(3) STATE’S APPLICATION TOWARD RAINY DAY FUND.—A State
is not eligible for an increase in its FMAP under subsection
(b) or (c), or an increase in a cap amount under subsection
(d), if any amounts attributable (directly or indirectly) to such
increase are deposited or credited into any reserve or rainy
day fund of the State.
(4) NO WAIVER AUTHORITY.—Except as provided in paragraph (2)(A)(iii), the Secretary may not waive the application
of this subsection or subsection (g) under section 1115 of the
Social Security Act or otherwise.
(5) LIMITATION OF FMAP TO 100 PERCENT.—In no case shall
an increase in FMAP under this section result in an FMAP
that exceeds 100 percent.
(6) TREATMENT OF CERTAIN EXPENDITURES.—With respect
to expenditures described in section 2105(a)(1)(B) of the Social
Security Act (42 U.S.C. 1397ee(a)(1)(B)), as in effect before
April 1, 2009, that are made during the period beginning on
October 1, 2008, and ending on March 31, 2009, any additional
Federal funds that are paid to a State as a result of this
section that are attributable to such expenditures shall not
be counted against any allotment under section 2104 of such
Act (42 U.S.C. 1397dd).
(g) REQUIREMENTS.—
(1) STATE REPORTS.—Each State that is paid additional
Federal funds as a result of this section shall, not later than
September 30, 2011, submit a report to the Secretary, in such
form and such manner as the Secretary shall determine,
regarding how the additional Federal funds were expended.
(2) ADDITIONAL REQUIREMENT FOR CERTAIN STATES.—In the
case of a State that requires political subdivisions within the
State to contribute toward the non-Federal share of expenditures under the State Medicaid plan required under section
1902(a)(2) of the Social Security Act (42 U.S.C. 1396a(a)(2)),
the State is not eligible for an increase in its FMAP under
subsection (b) or (c), or an increase in a cap amount under
subsection (d), if it requires that such political subdivisions
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PUBLIC LAW 111–5—FEB. 17, 2009
pay for quarters during the recession adjustment period a
greater percentage of the non-Federal share of such expenditures, or a greater percentage of the non-Federal share of
payments under section 1923, than the respective percentage
that would have been required by the State under such plan
on September 30, 2008, prior to application of this section.
(h) DEFINITIONS.—In this section, except as otherwise provided:
(1) FMAP.—The term ‘‘FMAP’’ means the Federal medical
assistance percentage, as defined in section 1905(b) of the Social
Security Act (42 U.S.C. 1396d(b)), as determined without regard
to this section except as otherwise specified.
(2) POVERTY LINE.—The term ‘‘poverty line’’ has the
meaning given such term in section 673(2) of the Community
Services Block Grant Act (42 U.S.C. 9902(2)), including any
revision required by such section.
(3) RECESSION ADJUSTMENT PERIOD.—The term ‘‘recession
adjustment period’’ means the period beginning on October
1, 2008, and ending on December 31, 2010.
(4) SECRETARY.—The term ‘‘Secretary’’ means the Secretary
of Health and Human Services.
(5) STATE.—The term ‘‘State’’ has the meaning given such
term in section 1101(a)(1) of the Social Security Act (42 U.S.C.
1301(a)(1)) for purposes of title XIX of the Social Security
Act (42 U.S.C. 1396 et seq.).
(i) SUNSET.—This section shall not apply to items and services
furnished after the end of the recession adjustment period.
(j) LIMITATION ON FMAP CHANGE.—The increase in FMAP
effected under section 614 of the Children’s Health Insurance Program Reauthorization Act of 2009 shall not apply in the computation
of the enhanced FMAP under title XXI or XIX of the Social Security
Act for any period (notwithstanding subsection (i)).
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SEC. 5002. TEMPORARY INCREASE IN DSH ALLOTMENTS DURING
RECESSION.
Section 1923(f)(3) of the Social Security Act (42 U.S.C. 1396r–
4(f)(3)) is amended—
(1) in subparagraph (A), by striking ‘‘paragraph (6)’’ and
inserting ‘‘paragraph (6) and subparagraph (E)’’; and
(2) by adding at the end the following new subparagraph:
‘‘(E) TEMPORARY INCREASE IN ALLOTMENTS DURING
RECESSION.—
‘‘(i) IN GENERAL.—Subject to clause (ii), the DSH
allotment for any State—
‘‘(I) for fiscal year 2009 is equal to 102.5 percent of the DSH allotment that would be determined under this paragraph for the State for fiscal
year 2009 without application of this subparagraph, notwithstanding subparagraphs (B) and (C);
‘‘(II) for fiscal year 2010 is equal to 102.5
percent of the DSH allotment for the State for
fiscal year 2009, as determined under subclause
(I); and
‘‘(III) for each succeeding fiscal year is equal
to the DSH allotment for the State under this
paragraph determined without applying subclauses (I) and (II).
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‘‘(ii) APPLICATION.—Clause (i) shall not apply to
a State for a year in the case that the DSH allotment
for such State for such year under this paragraph
determined without applying clause (i) would grow
higher than the DSH allotment specified under clause
(i) for the State for such year.’’.
SEC. 5003. EXTENSION OF MORATORIA ON CERTAIN MEDICAID FINAL
REGULATIONS.
(a) FINAL REGULATIONS RELATING TO OPTIONAL CASE MANAGESERVICES AND ALLOWABLE PROVIDER TAXES.—Section
7001(a)(3)(A) of the Supplemental Appropriations Act, 2008 (Public
Law 110–252) is amended by striking ‘‘April 1, 2009’’ and inserting
‘‘July 1, 2009’’.
(b) FINAL REGULATION RELATING TO SCHOOL-BASED ADMINISTRATION AND SCHOOL-BASED TRANSPORTATION.—Section 206 of the
Medicare, Medicaid, and SCHIP Extension Act of 2007 (Public
Law 110–173), as amended by section 7001(a)(2) of the Supplemental Appropriations Act, 2008 (Public Law 110–252), is amended
by inserting ‘‘(July 1, 2009, in the case of the final regulation
relating to school-based administration and school-based transportation)’’ after ‘‘April 1, 2009,’’.
(c) FINAL REGULATION RELATING TO OUTPATIENT HOSPITAL
FACILITY SERVICES.—Notwithstanding any other provision of law,
with respect to expenditures for services furnished during the period
beginning on December 8, 2008, and ending on June 30, 2009,
the Secretary of Health and Human Services shall not take any
action (through promulgation of regulation, issuance of regulatory
guidance, use of Federal payment audit procedures, or other
administrative action, policy, or practice, including a Medical Assistance Manual transmittal or letter to State Medicaid directors) to
implement the final regulation relating to clarification of the definition of outpatient hospital facility services under the Medicaid
program published on November 7, 2008 (73 Federal Register
66187).
(d) SENSE OF CONGRESS.—It is the sense of Congress that
the Secretary of Health and Human Services should not promulgate
as final regulations any of the following proposed Medicaid regulations:
(1) COST LIMITS FOR CERTAIN PROVIDERS.—The proposed
regulation published on January 18, 2007, (72 Federal Register
2236) (and the purported final regulation published on May
29, 2007 (72 Federal Register 29748) and determined by the
United States District Court for the District of Columbia to
have been ‘‘improperly promulgated’’, Alameda County Medical
Center, et al., v. Leavitt, et al., Civil Action No. 08-0422, Mem.
at 4 (D.D.C. May 23, 2008)).
(2) PAYMENTS FOR GRADUATE MEDICAL EDUCATION.—The
proposed regulation published on May 23, 2007 (72 Federal
Register 28930).
(3) REHABILITATIVE SERVICES.—The proposed regulation
published on August 13, 2007 (72 Federal Register 45201).
MENT
Time period.
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SEC. 5004. EXTENSION OF TRANSITIONAL MEDICAL ASSISTANCE (TMA).
(a) 18-MONTH EXTENSION.—
(1) IN GENERAL.—Sections 1902(e)(1)(B) and 1925(f) of the
Social Security Act (42 U.S.C. 1396a(e)(1)(B), 1396r–6(f)) are
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each amended by striking ‘‘September 30, 2003’’ and inserting
‘‘December 31, 2010’’.
(2) EFFECTIVE DATE.—The amendments made by this subsection shall take effect on July 1, 2009.
(b) STATE OPTION OF INITIAL 12-MONTH ELIGIBILITY.—Section
1925 of the Social Security Act (42 U.S.C. 1396r–6) is amended—
(1) in subsection (a)(1), by inserting ‘‘but subject to paragraph (5)’’ after ‘‘Notwithstanding any other provision of this
title’’;
(2) by adding at the end of subsection (a) the following:
‘‘(5) OPTION OF 12-MONTH INITIAL ELIGIBILITY PERIOD.—A
State may elect to treat any reference in this subsection to
a 6-month period (or 6 months) as a reference to a 12-month
period (or 12 months). In the case of such an election, subsection
(b) shall not apply.’’; and
(3) in subsection (b)(1), by inserting ‘‘but subject to subsection (a)(5)’’ after ‘‘Notwithstanding any other provision of
this title’’.
(c) REMOVAL OF REQUIREMENT FOR PREVIOUS RECEIPT OF MEDICAL ASSISTANCE.—Section 1925(a)(1) of such Act (42 U.S.C. 1396r–
6(a)(1)), as amended by subsection (b)(1), is further amended—
(1) by inserting ‘‘subparagraph (B) and’’ before ‘‘paragraph
(5)’’;
(2) by redesignating the matter after ‘‘REQUIREMENT.—’’
as a subparagraph (A) with the heading ‘‘IN GENERAL.—’’ and
with the same indentation as subparagraph (B) (as added by
paragraph (3)); and
(3) by adding at the end the following:
‘‘(B) STATE OPTION TO WAIVE REQUIREMENT FOR 3
MONTHS BEFORE RECEIPT OF MEDICAL ASSISTANCE.—A State
may, at its option, elect also to apply subparagraph (A)
in the case of a family that was receiving such aid for
fewer than three months or that had applied for and was
eligible for such aid for fewer than 3 months during the
6 immediately preceding months described in such subparagraph.’’.
(d) CMS REPORT ON ENROLLMENT AND PARTICIPATION RATES
UNDER TMA.—Section 1925 of such Act (42 U.S.C. 1396r–6), as
amended by this section, is further amended by adding at the
end the following new subsection:
‘‘(g) COLLECTION AND REPORTING OF PARTICIPATION INFORMATION.—
‘‘(1) COLLECTION OF INFORMATION FROM STATES.—Each
State shall collect and submit to the Secretary (and make
publicly available), in a format specified by the Secretary,
information on average monthly enrollment and average
monthly participation rates for adults and children under this
section and of the number and percentage of children who
become ineligible for medical assistance under this section
whose medical assistance is continued under another eligibility
category or who are enrolled under the State’s child health
plan under title XXI. Such information shall be submitted
at the same time and frequency in which other enrollment
information under this title is submitted to the Secretary.
‘‘(2) ANNUAL REPORTS TO CONGRESS.—Using the information
submitted under paragraph (1), the Secretary shall submit
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to Congress annual reports concerning enrollment and participation rates described in such paragraph.’’.
(e) EFFECTIVE DATE.—The amendments made by subsections
(b) through (d) shall take effect on July 1, 2009.
42 USC 1396r–6
note.
SEC. 5005. EXTENSION OF THE QUALIFYING INDIVIDUAL (QI) PROGRAM.
(a) EXTENSION.—Section 1902(a)(10)(E)(iv) of the Social Security
Act (42 U.S.C. 1396a(a)(10)(E)(iv)) is amended by striking
‘‘December 2009’’ and inserting ‘‘December 2010’’.
(b) EXTENDING TOTAL AMOUNT AVAILABLE FOR ALLOCATION.—
Section 1933(g) of such Act (42 U.S.C. 1396u–3(g)) is amended—
(1) in paragraph (2)—
(A) by striking ‘‘and’’ at the end of subparagraph (K);
(B) in subparagraph (L), by striking the period at the
end and inserting a semicolon; and
(C) by adding at the end the following new subparagraphs:
‘‘(M) for the period that begins on January 1, 2010,
and ends on September 30, 2010, the total allocation
amount is $412,500,000; and
‘‘(N) for the period that begins on October 1, 2010,
and ends on December 31, 2010, the total allocation amount
is $150,000,000.’’; and
(2) in paragraph (3), in the matter preceding subparagraph
(A), by striking ‘‘or (L)’’ and inserting ‘‘(L), or (N)’’.
Time period.
Time period.
SEC. 5006. PROTECTIONS FOR INDIANS UNDER MEDICAID AND CHIP.
(a) PREMIUMS
AND
COST SHARING PROTECTION UNDER MED-
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ICAID.—
(1) IN GENERAL.—Section 1916 of the Social Security Act
(42 U.S.C. 1396o) is amended—
(A) in subsection (a), in the matter preceding paragraph
(1), by striking ‘‘and (i)’’ and inserting ‘‘, (i), and (j)’’; and
(B) by adding at the end the following new subsection:
‘‘(j) NO PREMIUMS OR COST SHARING FOR INDIANS FURNISHED
ITEMS OR SERVICES DIRECTLY BY INDIAN HEALTH PROGRAMS OR
THROUGH REFERRAL UNDER CONTRACT HEALTH SERVICES.—
‘‘(1) NO COST SHARING FOR ITEMS OR SERVICES FURNISHED
TO INDIANS THROUGH INDIAN HEALTH PROGRAMS.—
‘‘(A) IN GENERAL.—No enrollment fee, premium, or
similar charge, and no deduction, copayment, cost sharing,
or similar charge shall be imposed against an Indian who
is furnished an item or service directly by the Indian Health
Service, an Indian Tribe, Tribal Organization, or Urban
Indian Organization or through referral under contract
health services for which payment may be made under
this title.
‘‘(B) NO REDUCTION IN AMOUNT OF PAYMENT TO INDIAN
HEALTH PROVIDERS.—Payment due under this title to the
Indian Health Service, an Indian Tribe, Tribal Organization, or Urban Indian Organization, or a health care provider through referral under contract health services for
the furnishing of an item or service to an Indian who
is eligible for assistance under such title, may not be
reduced by the amount of any enrollment fee, premium,
or similar charge, or any deduction, copayment, cost
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123 STAT. 506
PUBLIC LAW 111–5—FEB. 17, 2009
sharing, or similar charge that would be due from the
Indian but for the operation of subparagraph (A).
‘‘(2) RULE OF CONSTRUCTION.—Nothing in this subsection
shall be construed as restricting the application of any other
limitations on the imposition of premiums or cost sharing that
may apply to an individual receiving medical assistance under
this title who is an Indian.’’.
(2) CONFORMING AMENDMENT.—Section 1916A(b)(3) of such
Act (42 U.S.C. 1396o–1(b)(3)) is amended—
(A) in subparagraph (A), by adding at the end the
following new clause:
‘‘(vii) An Indian who is furnished an item or service
directly by the Indian Health Service, an Indian Tribe,
Tribal Organization or Urban Indian Organization or
through referral under contract health services.’’; and
(B) in subparagraph (B), by adding at the end the
following new clause:
‘‘(x) Items and services furnished to an Indian
directly by the Indian Health Service, an Indian Tribe,
Tribal Organization or Urban Indian Organization or
through referral under contract health services.’’.
(b) TREATMENT OF CERTAIN PROPERTY FROM RESOURCES FOR
MEDICAID AND CHIP ELIGIBILITY.—
(1) MEDICAID.—Section 1902 of the Social Security Act
(42 U.S.C. 1396a), as amended by sections 203(c) and
211(a)(1)(A)(ii) of the Children’s Health Insurance Program
Reauthorization Act of 2009 (Public Law 111–3), is amended
by adding at the end the following new subsection:
‘‘(ff) Notwithstanding any other requirement of this title or
any other provision of Federal or State law, a State shall disregard
the following property from resources for purposes of determining
the eligibility of an individual who is an Indian for medical assistance under this title:
‘‘(1) Property, including real property and improvements,
that is held in trust, subject to Federal restrictions, or otherwise
under the supervision of the Secretary of the Interior, located
on a reservation, including any federally recognized Indian
Tribe’s reservation, pueblo, or colony, including former reservations in Oklahoma, Alaska Native regions established by the
Alaska Native Claims Settlement Act, and Indian allotments
on or near a reservation as designated and approved by the
Bureau of Indian Affairs of the Department of the Interior.
‘‘(2) For any federally recognized Tribe not described in
paragraph (1), property located within the most recent boundaries of a prior Federal reservation.
‘‘(3) Ownership interests in rents, leases, royalties, or usage
rights related to natural resources (including extraction of natural resources or harvesting of timber, other plants and plant
products, animals, fish, and shellfish) resulting from the exercise of federally protected rights.
‘‘(4) Ownership interests in or usage rights to items not
covered by paragraphs (1) through (3) that have unique religious, spiritual, traditional, or cultural significance or rights
that support subsistence or a traditional lifestyle according
to applicable tribal law or custom.’’.
(2) APPLICATION TO CHIP.—Section 2107(e)(1) of such Act
(42 U.S.C. 1397gg(e)(1)), as amended by sections 203(a)(2),
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 507
203(d)(2), 214(b), 501(d)(2), and 503(a)(1) of the Children’s
Health Insurance Program Reauthorization Act of 2009 (Public
Law 111–3), is amended—
(A) by redesignating subparagraphs (C) through (I),
as subparagraphs (D) through (J), respectively; and
(B) by inserting after subparagraph (B), the following
new subparagraph:
‘‘(C) Section 1902(ff) (relating to disregard of certain
property for purposes of making eligibility determinations).’’.
(c) CONTINUATION OF CURRENT LAW PROTECTIONS OF CERTAIN
INDIAN PROPERTY FROM MEDICAID ESTATE RECOVERY.—Section
1917(b)(3) of the Social Security Act (42 U.S.C. 1396p(b)(3)) is
amended—
(1) by inserting ‘‘(A)’’ after ‘‘(3)’’; and
(2) by adding at the end the following new subparagraph:
‘‘(B) The standards specified by the Secretary under
subparagraph (A) shall require that the procedures established by the State agency under subparagraph (A) exempt
income, resources, and property that are exempt from the
application of this subsection as of April 1, 2003, under
manual instructions issued to carry out this subsection
(as in effect on such date) because of the Federal responsibility for Indian Tribes and Alaska Native Villages. Nothing
in this subparagraph shall be construed as preventing the
Secretary from providing additional estate recovery exemptions under this title for Indians.’’.
(d) RULES APPLICABLE UNDER MEDICAID AND CHIP TO MANAGED
CARE ENTITIES WITH RESPECT TO INDIAN ENROLLEES AND INDIAN
HEALTH CARE PROVIDERS AND INDIAN MANAGED CARE ENTITIES.—
(1) IN GENERAL.—Section 1932 of the Social Security Act
(42 U.S.C. 1396u–2) is amended by adding at the end the
following new subsection:
‘‘(h) SPECIAL RULES WITH RESPECT TO INDIAN ENROLLEES,
INDIAN HEALTH CARE PROVIDERS, AND INDIAN MANAGED CARE ENTITIES.—
‘‘(1) ENROLLEE OPTION TO SELECT AN INDIAN HEALTH CARE
PROVIDER AS PRIMARY CARE PROVIDER.—In the case of a nonIndian Medicaid managed care entity that—
‘‘(A) has an Indian enrolled with the entity; and
‘‘(B) has an Indian health care provider that is participating as a primary care provider within the network of
the entity,
insofar as the Indian is otherwise eligible to receive services
from such Indian health care provider and the Indian health
care provider has the capacity to provide primary care services
to such Indian, the contract with the entity under section
1903(m) or under section 1905(t)(3) shall require, as a condition
of receiving payment under such contract, that the Indian
shall be allowed to choose such Indian health care provider
as the Indian’s primary care provider under the entity.
‘‘(2) ASSURANCE OF PAYMENT TO INDIAN HEALTH CARE PROVIDERS FOR PROVISION OF COVERED SERVICES.—Each contract
with a managed care entity under section 1903(m) or under
section 1905(t)(3) shall require any such entity, as a condition
of receiving payment under such contract, to satisfy the following requirements:
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123 STAT. 508
PUBLIC LAW 111–5—FEB. 17, 2009
‘‘(A) DEMONSTRATION OF ACCESS TO INDIAN HEALTH
CARE PROVIDERS AND APPLICATION OF ALTERNATIVE PAYMENT ARRANGEMENTS.—Subject to subparagraph (C), to—
‘‘(i) demonstrate that the number of Indian health
care providers that are participating providers with
respect to such entity are sufficient to ensure timely
access to covered Medicaid managed care services for
those Indian enrollees who are eligible to receive services from such providers; and
‘‘(ii) agree to pay Indian health care providers,
whether such providers are participating or nonparticipating providers with respect to the entity, for covered
Medicaid managed care services provided to those
Indian enrollees who are eligible to receive services
from such providers at a rate equal to the rate negotiated between such entity and the provider involved
or, if such a rate has not been negotiated, at a rate
that is not less than the level and amount of payment
which the entity would make for the services if the
services were furnished by a participating provider
which is not an Indian health care provider.
The Secretary shall establish procedures for applying the
requirements of clause (i) in States where there are no
or few Indian health providers.
‘‘(B) PROMPT PAYMENT.—To agree to make prompt payment (consistent with rule for prompt payment of providers
under section 1932(f)) to Indian health care providers that
are participating providers with respect to such entity or,
in the case of an entity to which subparagraph (A)(ii)
or (C) applies, that the entity is required to pay in accordance with that subparagraph.
‘‘(C) APPLICATION OF SPECIAL PAYMENT REQUIREMENTS
FOR FEDERALLY-QUALIFIED HEALTH CENTERS AND FOR SERVICES PROVIDED BY CERTAIN INDIAN HEALTH CARE PROVIDERS.—
‘‘(i) FEDERALLY-QUALIFIED HEALTH CENTERS.—
‘‘(I) MANAGED CARE ENTITY PAYMENT REQUIREMENT.—To agree to pay any Indian health care
provider that is a federally-qualified health center
under this title but not a participating provider
with respect to the entity, for the provision of
covered Medicaid managed care services by such
provider to an Indian enrollee of the entity at
a rate equal to the amount of payment that the
entity would pay a federally-qualified health center
that is a participating provider with respect to
the entity but is not an Indian health care provider
for such services.
‘‘(II) CONTINUED APPLICATION OF STATE
REQUIREMENT TO MAKE SUPPLEMENTAL PAYMENT.—
Nothing in subclause (I) or subparagraph (A) or
(B) shall be construed as waiving the application
of section 1902(bb)(5) regarding the State plan
requirement to make any supplemental payment
due under such section to a federally-qualified
health center for services furnished by such center
to an enrollee of a managed care entity (regardless
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 509
of whether the federally-qualified health center
is or is not a participating provider with the
entity).
‘‘(ii) PAYMENT RATE FOR SERVICES PROVIDED BY
CERTAIN INDIAN HEALTH CARE PROVIDERS.—If the
amount paid by a managed care entity to an Indian
health care provider that is not a federally-qualified
health center for services provided by the provider
to an Indian enrollee with the managed care entity
is less than the rate that applies to the provision
of such services by the provider under the State plan,
the plan shall provide for payment to the Indian health
care provider, whether the provider is a participating
or nonparticipating provider with respect to the entity,
of the difference between such applicable rate and
the amount paid by the managed care entity to the
provider for such services.
‘‘(D) CONSTRUCTION.—Nothing in this paragraph shall
be construed as waiving the application of section
1902(a)(30)(A) (relating to application of standards to
assure that payments are consistent with efficiency,
economy, and quality of care).
‘‘(3) SPECIAL RULE FOR ENROLLMENT FOR INDIAN MANAGED
CARE ENTITIES.—Regarding the application of a Medicaid managed care program to Indian Medicaid managed care entities,
an Indian Medicaid managed care entity may restrict enrollment under such program to Indians in the same manner
as Indian Health Programs may restrict the delivery of services
to Indians.
‘‘(4) DEFINITIONS.—For purposes of this subsection:
‘‘(A) INDIAN HEALTH CARE PROVIDER.—The term ‘Indian
health care provider’ means an Indian Health Program
or an Urban Indian Organization.
‘‘(B) INDIAN MEDICAID MANAGED CARE ENTITY.—The
term ‘Indian Medicaid managed care entity’ means a managed care entity that is controlled (within the meaning
of the last sentence of section 1903(m)(1)(C)) by the Indian
Health Service, a Tribe, Tribal Organization, or Urban
Indian Organization, or a consortium, which may be composed of 1 or more Tribes, Tribal Organizations, or Urban
Indian Organizations, and which also may include the
Service.
‘‘(C) NON-INDIAN MEDICAID MANAGED CARE ENTITY.—
The term ‘non-Indian Medicaid managed care entity’ means
a managed care entity that is not an Indian Medicaid
managed care entity.
‘‘(D) COVERED MEDICAID MANAGED CARE SERVICES.—
The term ‘covered Medicaid managed care services’ means,
with respect to an individual enrolled with a managed
care entity, items and services for which benefits are available with respect to the individual under the contract
between the entity and the State involved.
‘‘(E) MEDICAID MANAGED CARE PROGRAM.—The term
‘Medicaid managed care program’ means a program under
sections 1903(m), 1905(t), and 1932 and includes a managed care program operating under a waiver under section
1915(b) or 1115 or otherwise.’’.
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123 STAT. 510
42 USC
1320b–24.
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Establishment.
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PUBLIC LAW 111–5—FEB. 17, 2009
(2) APPLICATION TO CHIP.—Section 2107(e)(1) of such Act
(42 U.S.C. 1397gg(1)), as amended by subsection (b)(2), is
amended—
(A) by redesignating subparagraph (J) as subparagraph
(K); and
(B) by inserting after subparagraph (I) the following
new subparagraph:
‘‘(J) Subsections (a)(2)(C) and (h) of section 1932.’’.
(e) CONSULTATION ON MEDICAID, CHIP, AND OTHER HEALTH
CARE PROGRAMS FUNDED UNDER THE SOCIAL SECURITY ACT
INVOLVING INDIAN HEALTH PROGRAMS AND URBAN INDIAN
ORGANIZATIONS.—
(1) CONSULTATION WITH TRIBAL TECHNICAL ADVISORY GROUP
(TTAG).—The Secretary of Health and Human Services shall
maintain within the Centers for Medicaid & Medicare Services
(CMS) a Tribal Technical Advisory Group (TTAG), which was
first established in accordance with requirements of the charter
dated September 30, 2003, and the Secretary of Health and
Human Services shall include in such Group a representative
of a national urban Indian health organization and a representative of the Indian Health Service. The inclusion of a representative of a national urban Indian health organization in such
Group shall not affect the nonapplication of the Federal
Advisory Committee Act (5 U.S.C. App.) to such Group.
(2) SOLICITATION OF ADVICE UNDER MEDICAID AND CHIP.—
(A) MEDICAID STATE PLAN AMENDMENT.—Section
1902(a) of the Social Security Act (42 U.S.C. 1396a(a)),
as amended by section 501(d)(1) of the Children’s Health
Insurance Program Reauthorization Act of 2009 (Public
Law 111–3), (42 U.S.C. 1396a(a)) is amended—
(i) in paragraph (71), by striking ‘‘and’’ at the
end;
(ii) in paragraph (72), by striking the period at
the end and inserting ‘‘; and’’; and
(iii) by inserting after paragraph (72), the following
new paragraph:
‘‘(73) in the case of any State in which 1 or more Indian
Health Programs or Urban Indian Organizations furnishes
health care services, provide for a process under which the
State seeks advice on a regular, ongoing basis from designees
of such Indian Health Programs and Urban Indian Organizations on matters relating to the application of this title that
are likely to have a direct effect on such Indian Health Programs and Urban Indian Organizations and that—
‘‘(A) shall include solicitation of advice prior to submission of any plan amendments, waiver requests, and proposals for demonstration projects likely to have a direct
effect on Indians, Indian Health Programs, or Urban Indian
Organizations; and
‘‘(B) may include appointment of an advisory committee
and of a designee of such Indian Health Programs and
Urban Indian Organizations to the medical care advisory
committee advising the State on its State plan under this
title.’’.
(B) APPLICATION TO CHIP.—Section 2107(e)(1) of such
Act (42 U.S.C. 1397gg(1)), as amended by subsections (b)(2)
and (d) (2), is amended—
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123 STAT. 511
(i) by redesignating subparagraphs (B), (C), (D),
(E), (F), (G), (H), (I), (J), and (K) as subparagraphs
(D), (F), (B), (E), (G), (I), (H), (J), (K), and (L), respectively;
(ii) by moving such subparagraphs so as to appear
in alphabetical order; and
(iii) by inserting after subparagraph (B) (as so
redesiganted and moved) the following new subparagraph:
‘‘(C) Section 1902(a)(73) (relating to requiring certain
States to seek advice from designees of Indian Health
Programs and Urban Indian Organizations).’’.
(3) RULE OF CONSTRUCTION.—Nothing in the amendments
made by this subsection shall be construed as superseding
existing advisory committees, working groups, guidance, or
other advisory procedures established by the Secretary of
Health and Human Services or by any State with respect
to the provision of health care to Indians.
(f) EFFECTIVE DATE.—The amendments made by this section
shall take effect on July 1, 2009.
42 USC 1396a
note.
42 USC 1396a
note.
SEC. 5007. FUNDING FOR OVERSIGHT AND IMPLEMENTATION.
(a) OVERSIGHT.—For purposes of ensuring the proper expenditure of Federal funds under title XIX of the Social Security Act
(42 U.S.C. 1396 et seq.), there is appropriated to the Office of
the Inspector General of the Department of Health and Human
Services, out of any money in the Treasury not otherwise appropriated and without further appropriation, $31,250,000 for fiscal
year 2009, which shall remain available for expenditure until September 30, 2011, and shall be in addition to any other amounts
appropriated or made available to such Office for such purposes.
(b) IMPLEMENTATION OF INCREASED FMAP.—For purposes of
carrying out section 5001, there is appropriated to the Secretary
of Health and Human Services, out of any money in the Treasury
not otherwise appropriated and without further appropriation,
$5,000,000 for fiscal year 2009, which shall remain available for
expenditure until September 30, 2011, and shall be in addition
to any other amounts appropriated or made available to such Secretary for such purposes.
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SEC. 5008. GAO STUDY AND REPORT REGARDING STATE NEEDS
DURING PERIODS OF NATIONAL ECONOMIC DOWNTURN.
(a) IN GENERAL.—The Comptroller General of the United States
shall study the period of national economic downturn in effect
on the date of enactment of this Act, as well as previous periods
of national economic downturn since 1974, for the purpose of developing recommendations for addressing the needs of States during
such periods. As part of such analysis, the Comptroller General
shall study the past and projected effects of temporary increases
in the Federal medical assistance percentage under the Medicaid
program with respect to such periods.
(b) REPORT.—Not later than April 1, 2011, the Comptroller
General of the United States shall submit a report to the appropriate committees of Congress on the results of the study conducted
under paragraph (1). Such report shall include the following:
(1) Such recommendations as the Comptroller General
determines appropriate for modifying the national economic
downturn assistance formula for temporary adjustment of the
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PUBLIC LAW 111–5—FEB. 17, 2009
Federal medical assistance percentage under Medicaid (also
referred to as a ‘‘countercyclical FMAP’’) described in GAO
report number GAO–07–97 to improve the effectiveness of the
application of such percentage in addressing the needs of States
during periods of national economic downturn, including recommendations for—
(A) improvements to the factors that would begin and
end the application of such percentage;
(B) how the determination of the amount of such
percentage could be adjusted to address State and regional
economic variations during such periods; and
(C) how the determination of the amount of such
percentage could be adjusted to be more responsive to
actual Medicaid costs incurred by States during such
periods.
(2) An analysis of the impact on States during such periods
of—
(A) declines in private health benefits coverage;
(B) declines in State revenues; and
(C) caseload maintenance and growth under Medicaid,
the Children’s Health Insurance Program, or any other
publicly-funded programs to provide health benefits coverage for State residents.
(3) Identification of, and recommendations for addressing,
the effects on States of any other specific economic indicators
that the Comptroller General determines appropriate.
TITLE VI—BROADBAND TECHNOLOGY
OPPORTUNITIES PROGRAM
SEC. 6000. TABLE OF CONTENTS.
The table of contents of this title is as follows:
TITLE VI—BROADBAND TECHNOLOGY OPPORTUNITIES PROGRAM
Sec. 6000. Table of contents.
Sec. 6001. Broadband Technology Opportunities Program.
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47 USC 1305.
SEC. 6001. BROADBAND TECHNOLOGY OPPORTUNITIES PROGRAM.
(a) The Assistant Secretary of Commerce for Communications
and Information (Assistant Secretary), in consultation with the
Federal Communications Commission (Commission), shall establish
a national broadband service development and expansion program
in conjunction with the technology opportunities program, which
shall be referred to as the Broadband Technology Opportunities
Program. The Assistant Secretary shall ensure that the program
complements and enhances and does not conflict with other Federal
broadband initiatives and programs.
(b) The purposes of the program are to—
(1) provide access to broadband service to consumers
residing in unserved areas of the United States;
(2) provide improved access to broadband service to consumers residing in underserved areas of the United States;
(3) provide broadband education, awareness, training,
access, equipment, and support to—
(A) schools, libraries, medical and healthcare providers,
community colleges and other institutions of higher education, and other community support organizations and
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 513
entities to facilitate greater use of broadband service by
or through these organizations;
(B) organizations and agencies that provide outreach,
access, equipment, and support services to facilitate greater
use of broadband service by low-income, unemployed, aged,
and otherwise vulnerable populations; and
(C) job-creating strategic facilities located within a
State-designated economic zone, Economic Development
District designated by the Department of Commerce,
Renewal Community or Empowerment Zone designated by
the Department of Housing and Urban Development, or
Enterprise Community designated by the Department of
Agriculture;
(4) improve access to, and use of, broadband service by
public safety agencies; and
(5) stimulate the demand for broadband, economic growth,
and job creation.
(c) The Assistant Secretary may consult a State, the District
of Columbia, or territory or possession of the United States with
respect to—
(1) the identification of areas described in subsection (b)(1)
or (2) located in that State; and
(2) the allocation of grant funds within that State for
projects in or affecting the State.
(d) The Assistant Secretary shall—
(1) establish and implement the grant program as expeditiously as practicable;
(2) ensure that all awards are made before the end of
fiscal year 2010;
(3) seek such assurances as may be necessary or appropriate from grantees under the program that they will substantially complete projects supported by the program in accordance
with project timelines, not to exceed 2 years following an award;
and
(4) report on the status of the program to the Committees
on Appropriations of the House of Representatives and the
Senate, the Committee on Energy and Commerce of the House
of Representatives, and the Committee on Commerce, Science,
and Transportation of the Senate, every 90 days.
(e) To be eligible for a grant under the program, an applicant
shall—
(1)(A) be a State or political subdivision thereof, the District
of Columbia, a territory or possession of the United States,
an Indian tribe (as defined in section 4 of the Indian SelfDetermination and Education Assistance Act (25 U.S.C. 450(b))
or native Hawaiian organization;
(B) a nonprofit—
(i) foundation,
(ii) corporation,
(iii) institution, or
(iv) association; or
(C) any other entity, including a broadband service
or infrastructure provider, that the Assistant Secretary
finds by rule to be in the public interest. In establishing
such rule, the Assistant Secretary shall to the extent practicable promote the purposes of this section in a technologically neutral manner;
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Deadline.
Reports.
Deadlines.
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123 STAT. 514
PUBLIC LAW 111–5—FEB. 17, 2009
(2) submit an application, at such time, in such form,
and containing such information as the Assistant Secretary
may require;
(3) provide a detailed explanation of how any amount
received under the program will be used to carry out the
purposes of this section in an efficient and expeditious manner,
including a showing that the project would not have been
implemented during the grant period without Federal grant
assistance;
(4) demonstrate, to the satisfaction of the Assistant Secretary, that it is capable of carrying out the project or function
to which the application relates in a competent manner in
compliance with all applicable Federal, State, and local laws;
(5) demonstrate, to the satisfaction of the Assistant Secretary, that it will appropriate (if the applicant is a State
or local government agency) or otherwise unconditionally obligate, from non-Federal sources, funds required to meet the
requirements of subsection (f);
(6) disclose to the Assistant Secretary the source and
amount of other Federal or State funding sources from which
the applicant receives, or has applied for, funding for activities
or projects to which the application relates; and
(7) provide such assurances and procedures as the Assistant
Secretary may require to ensure that grant funds are used
and accounted for in an appropriate manner.
(f) The Federal share of any project may not exceed 80 percent,
except that the Assistant Secretary may increase the Federal share
of a project above 80 percent if—
(1) the applicant petitions the Assistant Secretary for a
waiver; and
(2) the Assistant Secretary determines that the petition
demonstrates financial need.
(g) The Assistant Secretary may make competitive grants under
the program to—
(1) acquire equipment, instrumentation, networking capability, hardware and software, digital network technology, and
infrastructure for broadband services;
(2) construct and deploy broadband service related infrastructure;
(3) ensure access to broadband service by community
anchor institutions;
(4) facilitate access to broadband service by low-income,
unemployed, aged, and otherwise vulnerable populations in
order to provide educational and employment opportunities to
members of such populations;
(5) construct and deploy broadband facilities that improve
public safety broadband communications services; and
(6) undertake such other projects and activities as the
Assistant Secretary finds to be consistent with the purposes
for which the program is established.
(h) The Assistant Secretary, in awarding grants under this
section, shall, to the extent practical—
(1) award not less than 1 grant in each State;
(2) consider whether an application to deploy infrastructure
in an area—
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 515
(A) will, if approved, increase the affordability of, and
subscribership to, service to the greatest population of users
in the area;
(B) will, if approved, provide the greatest broadband
speed possible to the greatest population of users in the
area;
(C) will, if approved, enhance service for health care
delivery, education, or children to the greatest population
of users in the area; and
(D) will, if approved, not result in unjust enrichment
as a result of support for non-recurring costs through
another Federal program for service in the area; and
(3) consider whether the applicant is a socially and
economically disadvantaged small business concern as defined
under section 8(a) of the Small Business Act (15 U.S.C. 637).
(i) The Assistant Secretary—
(1) shall require any entity receiving a grant pursuant
to this section to report quarterly, in a format specified by
the Assistant Secretary, on such entity’s use of the assistance
and progress fulfilling the objectives for which such funds were
granted, and the Assistant Secretary shall make these reports
available to the public;
(2) may establish additional reporting and information
requirements for any recipient of any assistance made available
pursuant to this section;
(3) shall establish appropriate mechanisms to ensure appropriate use and compliance with all terms of any use of funds
made available pursuant to this section;
(4) may, in addition to other authority under applicable
law, deobligate awards to grantees that demonstrate an insufficient level of performance, or wasteful or fraudulent spending,
as defined in advance by the Assistant Secretary, and award
these funds competitively to new or existing applicants consistent with this section; and
(5) shall create and maintain a fully searchable database,
accessible on the Internet at no cost to the public, that contains
at least a list of each entity that has applied for a grant
under this section, a description of each application, the status
of each such application, the name of each entity receiving
funds made available pursuant to this section, the purpose
for which such entity is receiving such funds, each quarterly
report submitted by the entity pursuant to this section, and
such other information sufficient to allow the public to understand and monitor grants awarded under the program.
(j) Concurrent with the issuance of the Request for Proposal
for grant applications pursuant to this section, the Assistant Secretary shall, in coordination with the Commission, publish the
non-discrimination and network interconnection obligations that
shall be contractual conditions of grants awarded under this section,
including, at a minimum, adherence to the principles contained
in the Commission’s broadband policy statement (FCC 05-15,
adopted August 5, 2005).
(k)(1) Not later than 1 year after the date of enactment of
this section, the Commission shall submit to the Committee on
Energy and Commerce of the House of Representatives and the
Committee on Commerce, Science, and Transportation of the
Senate, a report containing a national broadband plan.
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Reports.
Deadlines.
Public
information.
Database.
Web site.
Records.
Publication.
Deadline.
Reports.
Broadband plan.
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123 STAT. 516
Broadband map.
Deadline.
Web posting.
Public
information.
Regulations.
PUBLIC LAW 111–5—FEB. 17, 2009
(2) The national broadband plan required by this section
shall seek to ensure that all people of the United States have
access to broadband capability and shall establish benchmarks
for meeting that goal. The plan shall also include—
(A) an analysis of the most effective and efficient
mechanisms for ensuring broadband access by all people
of the United States;
(B) a detailed strategy for achieving affordability of
such service and maximum utilization of broadband infrastructure and service by the public;
(C) an evaluation of the status of deployment of
broadband service, including progress of projects supported
by the grants made pursuant to this section; and
(D) a plan for use of broadband infrastructure and
services in advancing consumer welfare, civic participation,
public safety and homeland security, community development, health care delivery, energy independence and efficiency, education, worker training, private sector investment, entrepreneurial activity, job creation and economic
growth, and other national purposes.
(3) In developing the plan, the Commission shall have
access to data provided to other Government agencies under
the Broadband Data Improvement Act (47 U.S.C. 1301 note).
(l) The Assistant Secretary shall develop and maintain a comprehensive nationwide inventory map of existing broadband service
capability and availability in the United States that depicts the
geographic extent to which broadband service capability is deployed
and available from a commercial provider or public provider
throughout each State. Not later than 2 years after the date of
the enactment of this Act, the Assistant Secretary shall make
the broadband inventory map developed and maintained pursuant
to this section accessible by the public on a World Wide Web
site of the National Telecommunications and Information Administration in a form that is interactive and searchable.
(m) The Assistant Secretary shall have the authority to prescribe such rules as are necessary to carry out the purposes of
this section.
TITLE VII—LIMITS ON EXECUTIVE
COMPENSATION
SEC. 7000. TABLE OF CONTENTS.
The table of contents of this title is as follows:
TITLE VII—LIMITS ON EXECUTIVE COMPENSATION
Sec. 7000. Table of contents.
Sec. 7001. Executive compensation and corporate governance.
Sec. 7002. Applicability with respect to loan modifications.
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SEC. 7001. EXECUTIVE COMPENSATION AND CORPORATE GOVERNANCE.
Section 111 of the Emergency Economic Stabilization Act of
2008 (12 U.S.C. 5221) is amended to read as follows:
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123 STAT. 517
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‘‘SEC. 111. EXECUTIVE COMPENSATION AND CORPORATE GOVERNANCE.
‘‘(a) DEFINITIONS.—For purposes of this section, the following
definitions shall apply:
‘‘(1) SENIOR EXECUTIVE OFFICER.—The term ‘senior executive officer’ means an individual who is 1 of the top 5 most
highly paid executives of a public company, whose compensation
is required to be disclosed pursuant to the Securities Exchange
Act of 1934, and any regulations issued thereunder, and nonpublic company counterparts.
‘‘(2) GOLDEN PARACHUTE PAYMENT.—The term ‘golden parachute payment’ means any payment to a senior executive officer
for departure from a company for any reason, except for payments for services performed or benefits accrued.
‘‘(3) TARP RECIPIENT.—The term ‘TARP recipient’ means
any entity that has received or will receive financial assistance
under the financial assistance provided under the TARP.
‘‘(4) COMMISSION.—The term ‘Commission’ means the Securities and Exchange Commission.
‘‘(5) PERIOD IN WHICH OBLIGATION IS OUTSTANDING; RULE
OF CONSTRUCTION.—For purposes of this section, the period
in which any obligation arising from financial assistance provided under the TARP remains outstanding does not include
any period during which the Federal Government only holds
warrants to purchase common stock of the TARP recipient.
‘‘(b) EXECUTIVE COMPENSATION AND CORPORATE GOVERNANCE.—
‘‘(1) ESTABLISHMENT OF STANDARDS.—During the period in
which any obligation arising from financial assistance provided
under the TARP remains outstanding, each TARP recipient
shall be subject to—
‘‘(A) the standards established by the Secretary under
this section; and
‘‘(B) the provisions of section 162(m)(5) of the Internal
Revenue Code of 1986, as applicable.
‘‘(2) STANDARDS REQUIRED.—The Secretary shall require
each TARP recipient to meet appropriate standards for executive compensation and corporate governance.
‘‘(3) SPECIFIC REQUIREMENTS.—The standards established
under paragraph (2) shall include the following:
‘‘(A) Limits on compensation that exclude incentives
for senior executive officers of the TARP recipient to take
unnecessary and excessive risks that threaten the value
of such recipient during the period in which any obligation
arising from financial assistance provided under the TARP
remains outstanding.
‘‘(B) A provision for the recovery by such TARP
recipient of any bonus, retention award, or incentive compensation paid to a senior executive officer and any of
the next 20 most highly-compensated employees of the
TARP recipient based on statements of earnings, revenues,
gains, or other criteria that are later found to be materially
inaccurate.
‘‘(C) A prohibition on such TARP recipient making
any golden parachute payment to a senior executive officer
or any of the next 5 most highly-compensated employees
of the TARP recipient during the period in which any
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123 STAT. 518
obligation arising from financial assistance provided under
the TARP remains outstanding.
‘‘(D)(i) A prohibition on such TARP recipient paying
or accruing any bonus, retention award, or incentive compensation during the period in which any obligation arising
from financial assistance provided under the TARP remains
outstanding, except that any prohibition developed under
this paragraph shall not apply to the payment of longterm restricted stock by such TARP recipient, provided
that such long-term restricted stock—
‘‘(I) does not fully vest during the period in which
any obligation arising from financial assistance provided to that TARP recipient remains outstanding;
‘‘(II) has a value in an amount that is not greater
than 1⁄3 of the total amount of annual compensation
of the employee receiving the stock; and
‘‘(III) is subject to such other terms and conditions
as the Secretary may determine is in the public
interest.
‘‘(ii) The prohibition required under clause (i) shall
apply as follows:
‘‘(I) For any financial institution that received
financial assistance provided under the TARP equal
to less than $25,000,000, the prohibition shall apply
only to the most highly compensated employee of the
financial institution.
‘‘(II) For any financial institution that received
financial assistance provided under the TARP equal
to at least $25,000,000, but less than $250,000,000,
the prohibition shall apply to at least the 5 most highlycompensated employees of the financial institution, or
such higher number as the Secretary may determine
is in the public interest with respect to any TARP
recipient.
‘‘(III) For any financial institution that received
financial assistance provided under the TARP equal
to at least$250,000,000, but less than $500,000,000,
the prohibition shall apply to the senior executive officers and at least the 10 next most highly-compensated
employees, or such higher number as the Secretary
may determine is in the public interest with respect
to any TARP recipient.
‘‘(IV) For any financial institution that received
financial assistance provided under the TARP equal
to $500,000,000 or more, the prohibition shall apply
to the senior executive officers and at least the 20
next most highly-compensated employees, or such
higher number as the Secretary may determine is in
the public interest with respect to any TARP recipient.
‘‘(iii) The prohibition required under clause (i) shall
not be construed to prohibit any bonus payment required
to be paid pursuant to a written employment contract
executed on or before February 11, 2009, as such valid
employment contracts are determined by the Secretary or
the designee of the Secretary.
‘‘(E) A prohibition on any compensation plan that would
encourage manipulation of the reported earnings of such
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 519
TARP recipient to enhance the compensation of any of
its employees.
‘‘(F) A requirement for the establishment of a Board
Compensation Committee that meets the requirements of
subsection (c).
‘‘(4) CERTIFICATION OF COMPLIANCE.—The chief executive
officer and chief financial officer (or the equivalents thereof)
of each TARP recipient shall provide a written certification
of compliance by the TARP recipient with the requirements
of this section—
‘‘(A) in the case of a TARP recipient, the securities
of which are publicly traded, to the Securities and Exchange
Commission, together with annual filings required under
the securities laws; and
‘‘(B) in the case of a TARP recipient that is not a
publicly traded company, to the Secretary.
‘‘(c) BOARD COMPENSATION COMMITTEE.—
‘‘(1) ESTABLISHMENT OF BOARD REQUIRED.—Each TARP
recipient shall establish a Board Compensation Committee,
comprised entirely of independent directors, for the purpose
of reviewing employee compensation plans.
‘‘(2) MEETINGS.—The Board Compensation Committee of
each TARP recipient shall meet at least semiannually to discuss
and evaluate employee compensation plans in light of an assessment of any risk posed to the TARP recipient from such plans.
‘‘(3) COMPLIANCE BY NON-SEC REGISTRANTS.—In the case
of any TARP recipient, the common or preferred stock of which
is not registered pursuant to the Securities Exchange Act of
1934, and that has received $25,000,000 or less of TARP assistance, the duties of the Board Compensation Committee under
this subsection shall be carried out by the board of directors
of such TARP recipient.
‘‘(d) LIMITATION ON LUXURY EXPENDITURES.—The board of
directors of any TARP recipient shall have in place a companywide policy regarding excessive or luxury expenditures, as identified
by the Secretary, which may include excessive expenditures on—
‘‘(1) entertainment or events;
‘‘(2) office and facility renovations;
‘‘(3) aviation or other transportation services; or
‘‘(4) other activities or events that are not reasonable
expenditures for staff development, reasonable performance
incentives, or other similar measures conducted in the normal
course of the business operations of the TARP recipient.
‘‘(e) SHAREHOLDER APPROVAL OF EXECUTIVE COMPENSATION.—
‘‘(1) ANNUAL SHAREHOLDER APPROVAL OF EXECUTIVE COMPENSATION.—Any proxy or consent or authorization for an
annual or other meeting of the shareholders of any TARP
recipient during the period in which any obligation arising
from financial assistance provided under the TARP remains
outstanding shall permit a separate shareholder vote to approve
the compensation of executives, as disclosed pursuant to the
compensation disclosure rules of the Commission (which disclosure shall include the compensation discussion and analysis,
the compensation tables, and any related material).
‘‘(2) NONBINDING VOTE.—A shareholder vote described in
paragraph (1) shall not be binding on the board of directors
of a TARP recipient, and may not be construed as overruling
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PUBLIC LAW 111–5—FEB. 17, 2009
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a decision by such board, nor to create or imply any additional
fiduciary duty by such board, nor shall such vote be construed
to restrict or limit the ability of shareholders to make proposals
for inclusion in proxy materials related to executive compensation.
‘‘(3) DEADLINE FOR RULEMAKING.—Not later than 1 year
after the date of enactment of the American Recovery and
Reinvestment Act of 2009, the Commission shall issue any
final rules and regulations required by this subsection.
‘‘(f) REVIEW OF PRIOR PAYMENTS TO EXECUTIVES.—
‘‘(1) IN GENERAL.—The Secretary shall review bonuses,
retention awards, and other compensation paid to the senior
executive officers and the next 20 most highly-compensated
employees of each entity receiving TARP assistance before the
date of enactment of the American Recovery and Reinvestment
Act of 2009, to determine whether any such payments were
inconsistent with the purposes of this section or the TARP
or were otherwise contrary to the public interest.
‘‘(2) NEGOTIATIONS FOR REIMBURSEMENT.—If the Secretary
makes a determination described in paragraph (1), the Secretary shall seek to negotiate with the TARP recipient and
the subject employee for appropriate reimbursements to the
Federal Government with respect to compensation or bonuses.
‘‘(g) NO IMPEDIMENT TO WITHDRAWAL BY TARP RECIPIENTS.—
Subject to consultation with the appropriate Federal banking agency
(as that term is defined in section 3 of the Federal Deposit Insurance
Act), if any, the Secretary shall permit a TARP recipient to repay
any assistance previously provided under the TARP to such financial institution, without regard to whether the financial institution
has replaced such funds from any other source or to any waiting
period, and when such assistance is repaid, the Secretary shall
liquidate warrants associated with such assistance at the current
market price.
‘‘(h) REGULATIONS.—The Secretary shall promulgate regulations
to implement this section.’’.
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PUBLIC LAW 111–5—FEB. 17, 2009
123 STAT. 521
SEC. 7002. APPLICABILITY WITH RESPECT TO LOAN MODIFICATIONS.
Section 109(a) of the Emergency Economic Stabilization Act
of 2008 (12 U.S.C. 5219(a)) is amended—
(1) by striking ‘‘To the extent’’ and inserting the following:
‘‘(1) IN GENERAL.—To the extent’’; and
(2) by adding at the end the following:
‘‘(2) WAIVER OF CERTAIN PROVISIONS IN CONNECTION WITH
LOAN MODIFICATIONS.—The Secretary shall not be required to
apply executive compensation restrictions under section 111,
or to receive warrants or debt instruments under section 113,
solely in connection with any loan modification under this section.’’.
Approved February 17, 2009.
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LEGISLATIVE HISTORY—H.R. 1 (S. 336) (S. 350):
SENATE REPORTS: No. 111–3 accompanying S. 336 (Comm. on Appropriations).
CONGRESSIONAL RECORD, Vol. 155 (2009):
Jan. 27, 28, considered and passed House.
Feb. 2–7, 9, 10, considered and passed Senate, amended.
Feb. 13, House and Senate agreed to conference report.
DAILY COMPILATION OF PRESIDENTIAL DOCUMENTS (2009):
Feb. 17, Presidential remarks and statement.
Æ
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| File Type | application/pdf |
| File Title | PUBL005.PS |
| File Modified | 2012-03-20 |
| File Created | 2009-03-16 |