[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 7321 Received in Senate (RDS)]
2d Session
H. R. 7321
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
December 11 (legislative day, December 10), 2008
Received
_______________________________________________________________________
AN ACT
To authorize financial assistance to eligible automobile manufacturers,
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; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Auto Industry
Financing and Restructuring Act''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings and purposes.
Sec. 3. Presidential designation.
Sec. 4. Bridge financing.
Sec. 5. Restructuring progress assessment.
Sec. 6. Submission of plans.
Sec. 7. Financing for restructuring.
Sec. 8. Disapproval and call of loan.
Sec. 9. Allocation.
Sec. 10. Funding.
Sec. 11. Terms and conditions.
Sec. 12. Taxpayer protection.
Sec. 13. Oversight and audits.
Sec. 14. Automobile manufacturers' study on potential manufacturing of
transit vehicles.
Sec. 15. Reporting and monitoring.
Sec. 16. Report to Congress on lack of progress toward achieving an
acceptable negotiated plan.
Sec. 17. Submission of plan to Congress by the President's designee.
Sec. 18. Guarantee of leases of qualified transportation property.
Sec. 19. Coordination with other laws.
Sec. 20. Treatment of restructuring for purposes of applying
limitations on net operating loss
carryforwards and certain built-in losses.
Sec. 21. Emergency designation.
SEC. 2. FINDINGS AND PURPOSES.
(a) Findings.--The Congress finds the following:
(1) A combination of factors, including errors in the
business model of domestic automobile manufacturers, and
emergency economic circumstances, has prevented the domestic
automobile industry from securing credit from other sources,
and has led to the possibility of the failure of the domestic
automobile industry, which failure would have a systemic
adverse effect on the economy.
(2) Therefore, action in the form of financial aid to the
domestic automobile industry is necessary to stabilize the
economy.
(b) Purposes.--The purposes of this Act are--
(1) to immediately provide authority and facilities to
restore liquidity and stability to the domestic automobile
industry in the United States; and
(2) to ensure that such authority and such facilities are
used in a manner that--
(A) results in a viable and competitive domestic
automobile industry that minimizes adverse effects on
the environment;
(B) enhances the ability and the capacity of the
domestic automobile industry to pursue the timely and
aggressive production of energy-efficient advanced
technology vehicles;
(C) preserves and promotes the jobs of American
workers employed directly by the domestic automobile
industry and in related industries;
(D) safeguards the ability of the domestic
automobile industry to provide retirement and health
care benefits for the industry's retirees and their
dependents; and
(E) stimulates manufacturing and sales of
automobiles produced by automobile manufacturers in the
United States.
SEC. 3. PRESIDENTIAL DESIGNATION.
(a) Designation.--The President shall designate 1 or more officers
from the Executive Branch having appropriate expertise in such areas as
economic stabilization, financial aid to commerce and industry,
financial restructuring, energy efficiency, and environmental
protection (who shall hereinafter in this Act be collectively referred
to as the ``President's designee'') to carry out the purposes of this
Act, including the facilitation of restructuring necessary to achieve
the long-term financial viability of domestic automobile manufacturers,
who shall serve at the pleasure of the President.
(b) Additional Persons.--The President or the President's designee
may also employ, appoint, or contract with additional persons having
such expertise as the President or the President's designee believes
will assist the Government in carrying out the purposes of this Act.
(c) Participation by Other Agency Personnel.--Other Federal
agencies may provide, at the request of the President's designee, staff
on detail from such agencies for purposes of carrying out this Act.
SEC. 4. BRIDGE FINANCING.
(a) In General.--The President's designee shall authorize and
direct the disbursement of bridge loans or enter into commitments for
lines of credit to each automobile manufacturer that submitted a plan
to the Congress on December 2, 2008 (hereafter in this Act referred to
as an ``eligible automobile manufacturer''), and has submitted a
request for such loan or commitment.
(b) Availability of Funds.--All funds that are available pursuant
to section 10 to provide bridge financing or commitments for lines of
credit to eligible automobile manufacturers, after taking into account
the reservation of funds under section 10(a)(2), shall be used for the
purposes described in section 10(a). No new funds shall be available to
any eligible automobile manufacturer for the purposes of this section
after the date on which the President's designee has approved
restructuring plan under section 6 for such eligible automobile
manufacturer.
(c) Amount of Assistance.--The President's designee shall authorize
bridge loans or commitments for lines of credit to each eligible
automobile manufacturer in an amount that is intended to facilitate the
continued operations of the eligible automobile manufacturer and to
prevent the failure of the eligible automobile manufacturer, consistent
with the plan submitted on December 2, 2008, and subject to available
funds.
(d) Allocation.--The President's designee shall authorize the
disbursements or commitments under this section in accordance with the
allocation priorities set forth in subsections (a) and (b) of section
9.
SEC. 5. RESTRUCTURING PROGRESS ASSESSMENT.
(a) Establishment of Measures for Assessing Progress.--Not later
than January 1, 2009, the President's designee shall determine
appropriate measures for assessing the progress of each eligible
automobile manufacturer toward transforming the plan submitted by such
manufacturer to the Congress on December 2, 2008, into the
restructuring plan to be submitted under section 6(b).
(b) Evaluation of Progress on Basis of Restructuring Progress
Assessment Measures.--
(1) In general.--The President's designee shall evaluate
the progress of each eligible automobile manufacturer toward
the development of a restructuring plan, on the basis of the
restructuring progress assessment measures established under
this section for such manufacturer.
(2) Timing.--Each evaluation required under paragraph (1)
for any eligible automobile manufacturer shall be conducted at
the end of the 45-day period beginning on the date on which the
restructuring progress assessment measures were established by
the President's designee for such eligible automobile
manufacturer.
SEC. 6. SUBMISSION OF PLANS.
(a) Negotiated Plans.--
(1) Facilitation.--
(A) In general.--Beginning on the date of the
enactment of this Act, the President's designee shall
seek to facilitate agreement on any restructuring plan
to achieve and sustain the long-term viability,
international competitiveness, and energy efficiency of
an eligible automobile manufacturer, negotiated and
agreed to by representatives of interested parties (in
this Act referred to as a ``negotiated plan'') with
respect to any eligible automobile manufacturer.
(B) Interested parties.--For purposes of this
section, the term ``interested party'' shall be
construed broadly so as to include all persons who have
a direct financial interest in a particular automobile
manufacturer, including--
(i) employees and retirees of the eligible
automobile manufacturer;
(ii) trade unions;
(iii) creditors;
(iv) suppliers;
(v) automobile dealers; and
(vi) shareholders.
(2) Actions of the president's designee.--
(A) In general.--For the purpose of achieving a
negotiated plan, the President's designee may convene,
chair, and conduct formal and informal meetings,
discussions, and consultations, as appropriate, with
interested parties of an eligible automobile
manufacturer.
(B) Clarification.--The Federal Advisory Committee
Act shall not apply with respect to any of the
activities conducted or taken by the President's
designee pursuant to this Act.
(b) Restructuring Plan.--Not later than March 31, 2009, each
eligible automobile manufacturer shall submit to the President's
designee a restructuring plan to achieve and sustain the long-term
viability, international competitiveness, and energy efficiency of the
eligible automobile manufacturer (in this Act referred to as the
``restructuring plan'') in accordance with this section. The
President's designee shall approve the restructuring plan if the
President's designee determines that the plan will result in--
(1) the repayment of all Government-provided financing,
consistent with the terms specified in section 11, or otherwise
agreed to;
(2) the ability--
(A) to comply with applicable fuel efficiency and
emissions requirements;
(B) to commence domestic manufacturing of advanced
technology vehicles, as described in section 136 of the
Energy Independence and Security Act of 2007 (Public
Law 110-140; 42 U.S.C. 17013); and
(C) to produce new and existing products and
capacity, as described in section 14;
(3) the achievement of a positive net present value, using
reasonable assumptions and taking into account all existing and
projected future costs, including repayment of any financial
assistance provided pursuant to this Act;
(4) efforts to rationalize costs, capitalization, and
capacity with respect to the manufacturing workforce,
suppliers, and dealerships of the eligible automobile
manufacturer;
(5) proposals to restructure existing debt, including,
where appropriate, the conversion of debt to equity, to improve
the ability of the eligible automobile manufacturer to raise
private capital; and
(6) a product mix and cost structure that is competitive in
the United States marketplace.
(c) Extension of Negotiations and Plan Deadline.--Notwithstanding
the time limitations in subsection (b), the President's designee, upon
making a determination that the interested parties are negotiating in
good faith, are making significant progress, and that an additional
period of time would likely facilitate agreement on a negotiated plan,
and upon notification of the Congress, may extend for not longer than
30 additional days the negotiation period under subsection (b).
SEC. 7. FINANCING FOR RESTRUCTURING.
Upon approval by the President's designee of a restructuring plan,
the President's designee may provide financial assistance to an
eligible automobile manufacturer to implement the restructuring plan.
SEC. 8. DISAPPROVAL AND CALL OF LOAN.
If the President's designee has not approved the restructuring plan
at the expiration of the period provided in section 6 for submission
and approval of the restructuring plan, the President's designee shall
call the loan or cancel the commitment within 30 days, unless a
restructuring plan is approved within that period.
SEC. 9. ALLOCATION.
(a) Prioritizing Allocation.--The President's designee shall
prioritize allocation of the provision of financial assistance under
this Act to any eligible automobile manufacturer, based on--
(1) the necessity of the financial assistance for the
continued operation of the eligible automobile manufacturer;
(2) the potential impact of the failure of the eligible
automobile manufacturer on the United States economy; and
(3) the ability to utilize the financial assistance
optimally to satisfy the operational and long-term
restructuring requirements of the eligible automobile
manufacturer.
(b) Order of Priority; Section 4.--For purposes of allocating
bridge loans or commitments pursuant to section 4, the President's
designee shall prioritize the considerations set forth in subsection
(a) in the following order: paragraph (1), paragraph (2), and paragraph
(3).
(c) Order of Priority; Section 7.--For purposes of allocating
financial assistance for restructuring pursuant to section 7, the
President's designee shall prioritize the considerations set forth in
subsection (a) in the following order: paragraph (3), paragraph (2),
and paragraph (1).
SEC. 10. FUNDING.
(a) Financial Assistance.--
(1) In general.--Such sums are appropriated as are
necessary for the purpose of providing funds to support up to
$14,000,000,000 in loans under this Act. The Secretary of
Energy shall make available to the President's designee
$7,010,000,000 of funds made available under section 129 of
division A of the Consolidated Security, Disaster Assistance,
and Continuing Appropriations Act, 2009, relating to funding
for the manufacture of advanced technology vehicles, which
shall reduce the appropriation under this paragraph.
(2) Reservation for certain purposes.--The Secretary of
Energy shall reserve $500,000,000 of the amounts made available
under paragraph (1) for purposes of section 136 of the Energy
Independence and Security Act of 2007 (Public Law 110-140; 42
U.S.C. 17013).
(3) Continuing application process.--No provision of this
section shall be construed as prohibiting or limiting the
Secretary of Energy from processing applications for loans
under section 136 of the Energy Independence and Security Act
of 2007.
(b) Authorization.--There are authorized to be appropriated to the
Secretary of Energy, sums as may be necessary for the purpose of
replenishing the funds made available to the President's designee under
subsection (a)(1).
SEC. 11. TERMS AND CONDITIONS.
(a) Duration.--The duration of any loan made under this Act shall
be 7 years, or such longer period as the President's designee may
determine with respect to such loan.
(b) Rate of Interest; Timing of Payments.--
(1) Rate of interest.--The annual rate of interest for a
loan under this Act shall be--
(A) 5 percent during the 5-year period beginning on
the date on which the President's designee disburses
the loan; and
(B) 9 percent after the end of the period described
in subparagraph (A).
(2) Timing of payments.--Payments of interest on loans
under this Act shall be made semiannually.
(c) No Prepayment Penalty.--A loan made under this Act shall be
prepayable without penalty at any time.
(d) Information Access.--As a condition for the receipt of any
financial assistance made under this Act, an eligible automobile
manufacturer shall agree--
(1) to allow the President's designee to examine any books,
papers, records, or other data of the eligible automobile
manufacturer, and those of any subsidiary, affiliate, or entity
holding an ownership interest of 50 percent or more of such
automobile manufacturer, that may be relevant to the financial
assistance, including compliance with the terms of a loan or
any conditions imposed under this Act; and
(2) to provide in a timely manner any information requested
by the President's designee, including requiring any officer or
employee of the eligible automobile manufacturer, any
subsidiary, affiliate, or entity referred to in paragraph (1)
with respect to such manufacturer, or any person having
possession, custody, or care of the reports and records
required under paragraph (1), to appear before the President's
designee at a time and place requested and to provide such
books, papers, records, or other data, as requested, as may be
relevant or material.
(e) Oversight of Transactions and Financial Condition.--
(1) Duty to inform.--During the period in which any loan
extended under this Act remains outstanding, the eligible
automobile manufacturer which received such loan shall promptly
inform the President's designee of--
(A) any asset sale, investment, contract,
commitment, or other transaction proposed to be entered
into by such eligible automobile manufacturer that has
a value in excess of $100,000,000; and
(B) any other material change in the financial
condition of such eligible automobile manufacturer.
(2) Authority of the president's designee.--During the
period in which any loan extended under this Act remains
outstanding, the President's designee may--
(A) review any asset sale, investment, contract,
commitment, or other transaction described in paragraph
(1); and
(B) prohibit the eligible automobile manufacturer
which received the loan from consummating any such
proposed sale, investment, contract, commitment, or
other transaction, if the President's designee
determines that consummation of such transaction would
be inconsistent with or detrimental to the long-term
viability of the eligible automobile manufacturer.
(3) Procedures.--The President's designee may establish
procedures for conducting any review under this subsection.
(f) Consequences for Failure To Comply.--The terms of any financial
assistance made under this Act shall provide that if--
(1) an evaluation by the President's designee under section
5(b) demonstrates that the eligible automobile manufacturer
which received the financial assistance has failed to make
adequate progress towards meeting the restructuring progress
assessment measures established by the President's designee
under section 5(a) with respect to such recipient;
(2) after March 31, 2009, the eligible automobile
manufacturer which received the financial assistance fails to
submit an acceptable restructuring plan under section 6(b), or
fails to comply with any conditions or requirement applicable
under this Act or applicable fuel efficiency and emissions
requirements; or
(3) after a restructuring plan of an eligible automobile
manufacturer has been approved by the President's designee, the
auto manufacturer fails to make adequate progress in the
implementation of the plan, as determined by the President's
designee,
the repayment of any loan may be accelerated to such earlier date or
dates as the President's designee may determine and any other financial
assistance may be cancelled by the President's designee.
SEC. 12. TAXPAYER PROTECTION.
(a) Warrants.--
(1) In general.--The President's designee may not provide
any loan under this Act, unless the President's designee, or
such department or agency as is designated for such purpose by
the President, receives from the eligible automobile
manufacturer--
(A) in the case of an eligible automobile
manufacturer, the securities of which are traded on a
national securities exchange, a warrant giving the
right to the President's designee to receive nonvoting
common stock or preferred stock in such eligible
automobile manufacturer, or voting stock, with respect
to which the President's designee agrees not to
exercise voting power, as the President's designee
determines appropriate; or
(B) in the case of an eligible automobile
manufacturer other than one described in subparagraph
(A), a warrant for common or preferred stock, or an
instrument that is the economic equivalent of such a
warrant in the holding company of the eligible
automobile manufacturer, or any company that controls a
majority stake in the eligible automobile manufacturer,
as determined by the President's designee.
(2) Amount.--
(A) In general.--The warrants or instruments
described in paragraph (1) shall have a value equal to
20 percent of the aggregate amount of all loans
provided to the eligible automobile manufacturer under
this Act. Such warrants or instruments shall entitle
the Government to purchase--
(i) nonvoting common stock, up to a maximum
amount of 20 percent of the issued and
outstanding common stock of --
(I) the eligible automobile
manufacturer; or
(II) in the case of an eligible
automobile manufacturer, the securities
of which are not traded on a national
securities exchange, a holding company
or company that controls a majority of
the stock thereof (in this section
referred to as the ``warrant common'');
and
(ii) preferred stock having an aggregate
liquidation preference equal to 20 percent of
such aggregate loan amount, less the value of
common stock available for purchase under the
warrant common (in this section referred to as
the ``warrant preferred'').
(B) Common stock warrant price.--The exercise price
on a warrant or instrument described in paragraph (1)
shall be--
(i) the 15-day moving average, as of
December 2, 2008, of the market price of the
common stock of the eligible automobile
manufacturer which received any loan under this
Act; or
(ii) in the case of an eligible automobile
manufacturer, the securities of which are not
traded on a national securities exchange, the
economic equivalent of the market price
described in clause (i), as determined by the
President's designee.
(C) Terms of preferred stock warrant.--
(i) In general.--The initial exercise price
for the preferred stock warrant shall be $0.01
per share or such greater amount as the
corporate charter may require as the par value
per share of the warrant preferred. The
Government shall have the right to immediately
exercise the warrants.
(ii) Redemption.--The warrant preferred may
be redeemed at any time after exercise of the
preferred stock warrant at 100 percent of its
issue price, plus any accrued and unpaid
dividends.
(iii) Other terms and conditions.--Other
terms and conditions of the warrant preferred
shall be determined by the President's designee
to protect the interests of taxpayers.
(3) Application of other provisions of law.--Except as
otherwise provided in this section, the requirements for the
purchase of warrants under section 113(d)(2) of the Emergency
Economic Stabilization Act of 2008 (division A of Public Law
110-343) shall apply to any warrant or instrument described in
paragraph (1), including the antidilution protection provisions
therein.
(b) Executive Compensation and Corporate Governance.--
(1) In general.--During the period in which any financial
assistance under this Act remains outstanding, the eligible
automobile manufacturer which received such assistance shall be
subject to--
(A) the standards established by the President's
designee under paragraph (2); and
(B) the provisions of section 162(m)(5) of the
Internal Revenue Code of 1986, as applicable.
(2) Standards required.--The President's designee shall
require any eligible automobile manufacturer which received any
financial assistance under this Act to meet appropriate
standards for executive compensation and corporate governance.
(3) Specific requirements.--The standards established under
paragraph (2) shall include--
(A) limits on compensation that exclude incentives
for senior executive officers of an eligible automobile
manufacturer which received assistance under this Act
to take unnecessary and excessive risks that threaten
the value of such manufacturer during the period that
the loan is outstanding;
(B) a provision for the recovery by such automobile
manufacturer of any bonus or incentive compensation
paid to a senior executive officer based on statements
of earnings, gains, or other criteria that are later
found to be materially inaccurate;
(C) a prohibition on such automobile manufacturer
making any golden parachute payment to a senior
executive officer during the period that the loan is
outstanding;
(D) a prohibition on such automobile manufacturer
paying or accruing any bonus or incentive compensation
during the period that the loan is outstanding to the
25 most highly-compensated employees; and
(E) a prohibition on any compensation plan that
would encourage manipulation of such automobile
manufacturer's reported earnings to enhance the
compensation of any of its employees.
(4) Divestiture.--During the period in which any financial
assistance provided under this Act to any eligible automobile
manufacturer is outstanding, the eligible automobile
manufacturer may not own or lease any private passenger
aircraft, or have any interest in such aircraft, except that
such eligible automobile manufacturer shall not be treated as
being in violation of this provision with respect to any
aircraft or interest in any aircraft that was owned or held by
the manufacturer immediately before receiving such assistance,
as long as the recipient demonstrates to the satisfaction of
the President's designee that all reasonable steps are being
taken to sell or divest such aircraft or interest.
(5) Definitions.--For purposes of this subsection, the
following definitions shall apply:
(A) 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 non-public company
counterparts.
(B) 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.
(c) Prohibition on Payment of Dividends.--Except with respect to
obligations owed pursuant to law to any nonaffiliated party or any
existing contract with any nonaffiliated party in effect as of December
2, 2008, no dividends or distributions of any kind, or the economic
equivalent thereof (as determined by the President's designee), may be
paid by any eligible automobile manufacturer which receives financial
assistance under this Act, or any holding company or company that
controls a majority stake in the eligible automobile manufacturer,
while such financial assistance is outstanding.
(d) Other Interests Subordinated.--
(1) In general.--In the case of an eligible automobile
manufacturer which received a loan under this Act, to the
extent permitted by the terms of any obligation, liability, or
debt of the eligible automobile manufacturer in effect as of
December 2, 2008, any other obligation of such eligible
automobile manufacturer shall be subordinate to such loan, and
such loan shall be senior and prior to all obligations,
liabilities, and debts of the eligible automobile manufacturer,
and such eligible automobile manufacturer shall provide to the
Government, all available security and collateral against which
the loans under this Act shall be secured.
(2) Applicability in certain cases.--In the case of an
eligible automobile manufacturer referred to in paragraph (1),
the securities of which are not traded on a national securities
exchange, a loan under this Act to the eligible automobile
manufacturer shall--
(A) be treated as a loan to any holding company of,
or company that controls a majority stake in, the
eligible automobile manufacturer; and
(B) be senior and prior to all obligations,
liabilities, and debts of any such holding company or
company that controls a majority stake in the eligible
automobile manufacturer.
(e) Additional Taxpayer Protections.--
(1) Discharge.--A discharge under title 11, United States
Code, shall not discharge an eligible automobile manufacturer,
or any successor in interest thereto, from any debt for
financial assistance received pursuant to this Act.
(2) Exemption.--Any financial assistance provided to an
eligible automobile manufacturer under this Act shall be exempt
from the automatic stay established by section 362 of title 11,
United States Code.
(3) Interested parties.--Notwithstanding any provision of
title 11, United States Code, any interest in property or
equity rights of the United States arising from financial
assistance provided to an eligible automobile manufacturer
under this Act shall remain unaffected by any plan of
reorganization, except as the United States may agree to in
writing.
SEC. 13. OVERSIGHT AND AUDITS.
(a) Comptroller General Oversight.--
(1) Scope of oversight.--The Comptroller General of the
United States shall conduct ongoing oversight of the activities
and performance of the President's designee.
(2) Conduct and administration of oversight.--
(A) GAO presence.--The President's designee shall
provide to the Comptroller General appropriate space
and facilities for purposes of this subsection.
(B) Access to records.--To the extent otherwise
consistent with law, the Comptroller General shall have
access, upon request, to any information, data,
schedules, books, accounts, financial records, reports,
files, electronic communications, or other papers,
things, or property belonging to or in use by the
President's designee, at such reasonable time as the
Comptroller General may request. The Comptroller
General shall be afforded full facilities for verifying
transactions with the balances or securities held by
depositaries, fiscal agents, and custodians. The
Comptroller General may make and retain copies of such
books, accounts, and other records as the Comptroller
General deems appropriate.
(3) Reporting.--The Comptroller General shall submit
reports of findings under this section to Congress, regularly
and not less frequently than once every 60 days. The
Comptroller General may also submit special reports under this
subsection, as warranted by the findings of its oversight
activities.
(b) Special Inspector General.--It shall be the duty of the Special
Inspector General established under section 121 of Public Law 110-343
to conduct, supervise, and coordinate audits and investigations of the
President's designee in addition to the duties of the Special Inspector
General under such section and for such purposes. The Special Inspector
General shall also have the duties, responsibilities, and authorities
of inspectors general under the Inspector General Act of 1978,
including section 6 of such Act. In the event that the Office of the
Special Inspector General is terminated, the Inspector General of the
Department of the Treasury shall assume the responsibilities of the
Special Inspector General under this subsection.
(c) Access to Records of Borrowers by GAO.--Notwithstanding any
other provision of law, during the period in which any financial
assistance provided under this Act is outstanding, the Comptroller
General of the United States shall have access, upon request, to any
information, data, schedules, books, accounts, financial records,
reports, files, electronic communications, or other papers, things, or
property belonging to or in use by the eligible automobile
manufacturer, and any subsidiary, affiliate, or entity holding an
ownership interest of 50 percent or more of such eligible automobile
manufacturer (collectively referred to in this section as ``related
entities''), and to any officer, director, or other agent or
representative of the eligible automobile manufacturer and its related
entities, at such reasonable times as the Comptroller General may
request. The Comptroller General may make and retain copies of such
books, accounts, and other records as the Comptroller General deems
appropriate.
SEC. 14. AUTOMOBILE MANUFACTURERS' STUDY ON POTENTIAL MANUFACTURING OF
TRANSIT VEHICLES.
(a) In General.--Each eligible automobile manufacturer which
receives financial assistance under this Act shall conduct an analysis
of potential uses of any excess production capacity (especially those
of former sport utility vehicle producers) to make vehicles for sale to
public transit agencies, including--
(1) the current and projected demand for bus and rail cars
by American public transit agencies;
(2) the potential growth for both sales and supplies to
such agencies in the short, medium, and long term;
(3) a description of existing ``Buy America'' provisions,
and data provided by the Federal Transit Administration
regarding the use or request of waivers from such provisions;
and
(4) any recommendations as to whether such actions would
result in a business line that makes sense for the automobile
manufacturer.
(b) GAO Review and Report.--The Comptroller General of the United
States shall review the analyses conducted under this section, and
shall provide reports thereon to the Congress and the President's
designee.
SEC. 15. REPORTING AND MONITORING.
(a) Reporting on Consummation of Loans.--The President's designee
shall submit a report to the Congress on each bridge loan made under
section 4 not later than 5 days after the date of the consummation of
such loan.
(b) Reporting on Restructuring Progress Assessment Measures.--The
President's designee shall submit a report to the Congress on the
restructuring progress assessment measures established for each
manufacturer under section 5(a) not later than 10 days after
establishing the restructuring progress assessment measures.
(c) Reporting on Evaluations.--The President's designee shall
submit a report to the Congress containing the detailed findings and
conclusions of the President's designee in connection with the
evaluation of an eligible automobile manufacturer under section 5(b).
(d) Reporting on Consequences for Failure to Comply.--The
President's designee shall submit a report to the Congress on the
exercise of a right under section 11(f) to accelerate indebtedness of
an eligible automobile manufacturer under this Act or to cancel any
other financial assistance provided to such eligible automobile
manufacturer, and the facts and circumstances on which such exercise
was based, before the end of the 10-day period beginning on the date of
the exercise of the right.
(e) Monitoring.--The President's designee shall monitor the use of
loan funds received by eligible automobile manufacturers under this
Act, and shall report to Congress once every 90 days (beginning 30 days
after the date of enactment of this Act) on the progress of the ability
of the recipient of the loan to continue operations and proceed with
restructuring processes that restore the financial viability of the
recipient and promote environmental sustainability.
SEC. 16. REPORT TO CONGRESS ON LACK OF PROGRESS TOWARD ACHIEVING AN
ACCEPTABLE NEGOTIATED PLAN.
(a) Authority To Facilitate a Negotiated Plan.--At any such time as
the President's designee determines that action is necessary to avoid
disruption to the economy or to achieve a negotiated plan, the
President's designee shall submit to Congress a report outlining any
additional powers and authorities necessary to facilitate the
completion of a negotiated plan required under section 6.
(b) Impediments to Achieving Negotiated Plans.--If the President's
designee determines, on the basis of an evaluation by the President's
designee of the progress being made by an eligible automobile
manufacturer toward meeting the restructuring progress assessment
measures established under section 5, that adequate progress is not
being made toward achieving a negotiated plan by March 31, 2009, the
President's designee shall submit to Congress a report detailing the
impediments to achievement of a negotiated plan by the eligible
automobile manufacturer.
SEC. 17. SUBMISSION OF PLAN TO CONGRESS BY THE PRESIDENT'S DESIGNEE.
Upon submission of a report pursuant to section 16(b), the
President's designee shall provide to Congress a plan that represents
the judgement of the President's designee as to the steps necessary to
achieve the long-term viability, international competitiveness, and
energy efficiency of the eligible automobile manufacturer, consistent
with the factors set forth in section 6(b), including through a
negotiated plan, a plan to be implemented by legislation, or a
reorganization pursuant to chapter 11 of title 11, United States Code.
SEC. 18. GUARANTEE OF LEASES OF QUALIFIED TRANSPORTATION PROPERTY.
(a) Guarantee.--Upon the request of a lessee of qualified
transportation property, the President's designee shall serve as a
guarantor with respect to all obligations of such lessee with respect
to leases of such qualified transportation property. Such guarantee
shall be on such terms and conditions as are determined by the
President's designee, not later than 14 days after the date of
enactment of this section.
(b) Recoupment of Payment of Claims.--
(1) In general.--Any claims under this section in excess of
collateral held for the benefit of the President's designee
shall be paid from the General Fund of the Treasury out of
funds not otherwise appropriated.
(2) Recoupment fee.--Subsequent to any payment made under
paragraph (1), the President's designee shall recoup amounts
paid under paragraph (1) by establishing a fee that is
sufficient to recoup the amount of the claim payment not later
than 3 years after the date of such claim payment from any
lessee or guarantor for whom the claim was paid or for whom a
guarantee was issued.
(c) Definitions.--For purposes of this section--
(1) the term ``qualified transportation property'' means
domestic property subject to a lease that was approved by the
Federal Transit Administration prior to January 1, 2006; and
(2) the term ``guarantor'' includes, without limitation,
any guarantor, surety, and payment undertaker.
SEC. 19. COORDINATION WITH OTHER LAWS.
(a) In General.--No provision of this Act may be construed as
altering, affecting, or superseding--
(1) the provisions of section 129 of division A of the
Consolidated Security, Disaster Assistance, and Continuing
Appropriations Act, 2009, relating to funding for the
manufacture of advanced technology vehicles;
(2) any existing authority to provide financial assistance
or liquidity for purposes of the day-to-day operations in the
ordinary course of business or research and development.
(b) Limitation.--Except to provide bridge financing or to implement
a restructuring plan pursuant to this Act, no funds from the United
States Treasury may be used for the purpose of assisting an eligible
automobile manufacturer to achieve financial viability or otherwise to
avoid bankruptcy.
(c) Authorization of Fiscal Year 2009 Cost of Living Salary
Adjustment for Justices and Judges.--Pursuant to section 140 of Public
Law 97-92, justices and judges of the United States are authorized
during fiscal year 2009 to receive a salary adjustment in accordance
with section 461 of title 28, United States Code.
(d) Antitrust Provisions.--
(1) In general.--Subject to paragraphs (2) and (4), the
antitrust laws shall not apply to meetings, discussions, or
consultations among an eligible automobile manufacturer and its
interested parties for the purpose of achieving a negotiated
plan pursuant to section (6)(a)(2).
(2) Exclusions.--Paragraph (1) shall not apply with respect
to price-fixing, allocating a market between competitors,
monopolizing (or attempting to monopolize) a market, or
boycotting.
(3) Antitrust agency participation.--The Attorney General
of the United States and the Federal Trade Commission shall, to
the extent practicable, receive reasonable advance notice of,
and be permitted to participate in, each meeting, discussion,
or consultation described in paragraph (1).
(4) Preservation of enforcement authority.--Paragraph (1)
shall not be construed to preclude the Attorney General of the
United States or the Federal Trade Commission from bringing an
enforcement action under the antitrust laws for injunctive
relief.
(5) Sunset.--Paragraph (1) shall apply only with respect to
meetings, discussions, or consultations that occur within the
3-year period beginning on the date of the enactment of this
Act.
(6) Definition.--For purposes of this subsection, the term
``antitrust laws''--
(A) has the same meaning as in subsection (a) of
the first section of the Clayton Act (15 U.S.C. 12(a)),
except that such term includes section 5 of the Federal
Trade Commission Act (15 U.S.C. 45), to the extent that
such section 5 applies to unfair methods of
competition; and
(B) includes any provision of State law that is
similar to the laws referred to in subparagraph (A).
SEC. 20. TREATMENT OF RESTRUCTURING FOR PURPOSES OF APPLYING
LIMITATIONS ON NET OPERATING LOSS CARRYFORWARDS AND
CERTAIN BUILT-IN LOSSES.
Section 382 of the Internal Revenue Code of 1986 shall not apply in
the case of an ownership change resulting from this Act or pursuant to
a restructuring plan approved under this Act.
SEC. 21. EMERGENCY DESIGNATION.
Amounts provided by this Act are designated as an emergency
requirement and necessary to meet emergency needs pursuant to section
204(a) of S. Con. Res. 21 (110th Congress), the concurrent resolution
on the budget for fiscal year 2008.
SEC. __. NEW LENDING THAT IS ATTRIBUTABLE TO TARP INVESTMENTS AND
ASSISTANCE.
Section 7(a) of the Federal Deposit Insurance Act ( U.S.C. 1817(a))
is amended by adding at the end the following new paragraph:
``(12) Lending increases attributable to investment or
other assistance under the troubled assets relief program.--
``(A) In general.--Each report of condition filed
pursuant to this subsection by an insured depository
institution which received an investment or other
assistance under the Troubled Assets Relief Program
established by the Emergency Economic Stabilization Act
of 2008 or section 136(d) of the Energy Independence
and Security Act of 2007 shall report the amount of any
increase in new lending in the period covered by such
report (or the amount of any reduction in any decrease
in new lending) that is attributable to such investment
or assistance, to the extent possible.
``(B) Alternative measure.--If an insured
depository institution that is subject to subparagraph
(A) cannot accurately quantify the effect that an
investment or other assistance under such Troubled
Assets Relief Program has had on new lending by the
institution, the insured depository institution shall
report the total amount of the increase in new lending,
if any, in the period covered by such report.''.
Passed the House of Representatives December 10, 2008.
Attest:
LORRAINE C. MILLER,
Clerk.