Credit Card Minimum Payment Warning Act of 2005

Mr. President, I rise today to introduce a bill which will clarify certain National Park Service authorities for the Golden Gate

National Recreation Area and San Francisco Maritime National Historic Park.

I also want to thank Congresswoman Pelosi for introducing a similar bill in the house. As a San Francisco native and a former mayor, I know these parks are extremely popular tourist sites and I believe this bill will allow the National Park Service to restore and renovate these parks in order to maintain their status as top tourist destinations.

The Golden Gate National Recreation Area is one of the largest urban national parks in the world--home to such renowned sites as the Presidio of San Francisco and Alcatraz Island. Additionally, the San Francisco Maritime National Historic Park, located at the west end of San Francisco's Fisherman's Wharf, includes a fleet of landmark vessels and a maritime museum.

Presently, the revenue collected by these parks must be spent in the same fiscal year in which it is collected. Otherwise, any revenue that is not spent is deposited in the National Treasury. This current policy makes it difficult for these two parks to pursue long term, major restoration projects. This bill makes the necessary changes to allow these parks to undertake needed substantive restoration as opposed to smaller, less significant projects allowed under the current revenue system.

The bill also calls for a modest boundary adjustment between the two adjacent parks in order to be consistent with the current administration of San Francisco's Municipal Pier.

I am introducing this bill with the hope that it will allow these two parks to retain the revenue necessary for maintenance in order to continue to attract visitors from around the world to these historic sites of California.

I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I am pleased to introduce legislation that clarifies the meaning and scope of the Alien Tort Statute.

This 200-year-old law has spawned dozens of legal cases involving U.S. multinational companies, human rights groups, foreign plaintiffs, the State Department, and millions of dollars in litigation costs. Numerous companies in California are in the midst of these lawsuits as defendants and it is my view that legislation can help refine and improve the law.

Judges have grappled in interpreting and applying the statute for years now without a consensus view emerging. I think it would be fair to say that confusion reigns supreme when it comes to alien tort suits.

Given this opaque legal picture, last summer the Supreme Court ruled on a case, Sosa v. Alvarez Machain, in an attempt to reconcile conflicting decisions from judges across the country.

The Court's June 2004 ruling was notable, for embracing certain principles that will help guide the Judiciary branch on alien tort claim issues but for leaving many questions unanswered as well.

It held that a substantive, legal basis exists for foreigners to sue U.S. individuals and corporations over alleged human rights violations occurring in overseas locations. The Court essentially affirmed that a limited, implicit sanction for courts exists to decide certain alien tort claims.

At the same time, the opinion provided a wide berth for what the claims might actually be. The Court hedged on key issues, without clearly demarcating what suits ought to go forward under the statute and which ones should be summarily dismissed.

In particular the ruling did not address: which international law claims by foreigners should be heard in a U.S. district court, and the standard of liability for U.S. companies facing these human rights charges.

To clarify these areas, the Justices wrote that they would welcome ``any congressional guidance'' on the breadth of the statute. During oral arguments a number of the Justices appeared to concur that a legislative approach would make sense. One Justice even commented that ``I just wonder if it isn't wise to . . . let Congress have a look at this thing.''

Those views were echoed by a Washington Post editorial that followed soon after. The paper stated that the alien tort law has ``formed the basis for litigation against U.S. companies involved with nefarious regimes abroad. And while horrid conduct by an American company ought to be, where proven, grounds for action in American courts, the parameters of such litigation are surely a legislative question, not one for the freewheeling discretion of judges. . . . But the court left open the possibility that at least some of these suits can proceed in the absence of further congressional action.''

The Court's perspective, along with the Post commentary, indicates, at least to me, a sense of caution about imposing by judicial fiat action that is better left to consideration and refinement by the Congress.

The Court's hesitation to legislate from the bench shifts the responsibility to this body, I believe, to pass legislation that settles on a reasonable legal means that plaintiffs and defendants alike can rely on to litigate their differences.

I believe the measure we are introducing today accomplishes this basic and important goal.

Right now, courts are essentially adrift in terms of being able to pinpoint the underlying meaning, scope and intent of this 200-year-old statute. In its entirety, it reads: ``The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.''

The economy of words makes the law abstruse and subject to varying interpretation. And complex, lengthy and unnecessary litigation has burdened the courts as a result.

This new bill will establish a fair, legal basis for filing suit under the Alien Tort Statute (ATS). And it will have the added benefit of explicating the law's dual jurisdictional and substantive nature.

The measure: specifies a legal standard convicting defendants of wrongdoing if they directly participate with specific intent to commit the alleged tort; codifies international claims under the Alien Tort law to include genocide, torture, slavery and slave trade, extrajudicial killing, and piracy; expands on existing statutory law, the Torture Victim Protection Act; states that Federal courts shall not proceed with tort claims when the President adequately certifies that such exercise of jurisdiction will have a negative impact on the foreign policy interests of the U.S.; maintains that every effort should be made to try these cases in the country of origin before granting jurisdiction in U.S. courts; invokes a 10-year statute of limitations on ATS charges filed against U.S. multinational companies; and disallows contingency fee arrangements for legal representatives of plaintiffs or defendants.

The Supreme Court's delineation that the Alien Tort law is jurisdictional in one sense, but recognizes a restricted category of substantive claims encompassed by the law of nations, leaves many unresolved questions.

The historical origins of the ATS, passed by the First Congress as part of the Judiciary Act of 1789, suggest that certain offenses relevant to that period in American history--piracy, infringing the rights of ambassadors, and prevention of safe travel abroad--were meant to be prosecutable. But Justice Souter's Alvarez-Machain opinion notes that a slim legislative history of the statute makes it difficult to surmise the law's true intent.

At the same time, Justice Souter opined: ``Still, the history does tend to support two propositions. First, there is every reason to suppose that the First Congress did not pass the ATS as a jurisdictional convenience to be placed on the shelf for use by a future Congress or state legislature that might, some day, authorize the creation of causes of action or itself decide to make some element of the law of nations actionable for the benefit of foreigners. The anxieties of the preconstitutional period cannot be ignored easily enough to think that the statute was not meant to have a practical effect. . . . The second inference to be drawn from the history is that Congress intended the ATS to furnish jurisdiction for a relatively modest set of actions alleging violations of the law of nations.''

The opinion ranges further, that, such a ``modest set of actions'' indeed applies to current times, not merely offenses grounded in law two hundred

years ago. The critical portion reads: ``Accordingly, we think courts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with specificity comparable to the features of the 18th century paradigms we have recognized.''

I am uncomfortable with such a nebulous, open-ended legal approach permitting courts to entertain suits based on a ``norm of international character'' and ``specificity'' consistent with crimes of early American history. Adjudicating cases based on these broad historical and legal precepts is admirable. In practical terms it remains very difficult.

The Congress ought to weigh in and play a constructive role. Without legislation, judges will continue to reach markedly different conclusions under the law, based on arbitrary interpretations of case- specific facts and other considerations.

Let's take the legal mystery out of the statute and what qualifies as an alien tort and replace it with something that is concrete and appropriate for the times.

At the heart of this legislation is codifying a class of violations of international law that will discourage defendant companies from consorting with human rights violators in any respect. They will be held liable if they do so by a specific standard that judges whether they intentionally and directly caused certain violations of human rights.

A plaintiff victim will be able to vindicate their rights by filing an express statutory cause of action based on a half dozen egregious wrongs. Regardless of the foreign policy and trade implications, defendant U.S. companies will be held fully accountable under the bill for bad corporate behavior in their overseas business operations.

That is as it should be. Certain alien torts in violation of the law of nations ought to be cognizable and this legislation ensures that result. Moreover, the fact that specific crimes are made actionable and enforceable will aid human rights organizations in their fight to strengthen the deterrent effect of the law for potential violators.

Regarding the defendant perspective, in one friend of the court brief submitted in the Alvarez Machain case, the argument was made that ``. . . companies face enormous uncertainty regarding the scope of potential claims under the statute. . . . Because ATS cases are based upon an implied cause of action without any clear standards of liability, there may be little companies can do to protect themselves against potential claims, short of simply ceasing to do business in the many nations whose human rights practices come up short against evolving Western ideals.''

The business community ought to embrace this legislation precisely because it wipes away this uncertainty. The best way to encourage U.S. multinationals to invest abroad is: 1. by specifying a universe of the most egregious human rights violations that they may be held liable for and 2. offering a clear, understandable legal standard that judges their actions accordingly. This legislative measure tackles both issues head on.

There are estimates that dozens of existing alien tort suits claim damages--collectively--in excess of $200 billion dollars. That's an extraordinary sum that rightly concerns the U.S. business community, particularly given numerous inconsistent federal courts verdicts handed down in the past two decades.

This legislation deters private plaintiffs from filing sweeping and specious claims simply because a corporation has a U.S. legal nexus and deep pockets. Yet, it expands the basis for foreign plaintiffs pursuing certain international law causes of action in federal court by codifying their rights in a judicious way.

While some in the U.S. business community would prefer that the Alien Tort statute be deleted from the U.S. Code altogether, I would respectfully disagree. A fair compromise that balances the interests of U.S. companies and human rights organizations is what this legislation seeks to accomplish.

The Congress has waded into this debate before, passing the Torture Victim Protection Act in 1991, and this new legislation contains many similar elements: a statute of limitations, a statutory exhaustion provision, and specifying torture and extrajudicial killing as within the adjudicatory discretion of a district court.

There is precedent, then, for the Legislative branch acting to provide civil redress for victims of torture. Asserting extraterritorial jurisdiction under the ATS, for torture and other jus cogen violations, has a firm footing in American jurisprudence.

The legislative history of the TVPA is important because it spells out the constitutional grounds justifying that statutory law and this new legislation as well.

The Senate Judiciary Committee report on the TVPA states as follows: ``Under article III of the Constitution, the Federal judiciary has the power to adjudicate cases `arising under' the `law of the United States.' The Supreme Court has held that the law of the United States includes international law. . . . Congress's ability to enact this legislation also derives from article I, section 8 of the Constitution which authorizes Congress `to define and punish . . . Offenses against the Law of Nations.' ''

Existing case law confirms the point that Congress has given the federal courts the power to interpret and apply international human rights law. The notable Paquete Habana decision states, in part, that ``international law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. . . Congress, however, has not only expressed no disagreement with our view of the proper exercise of the judicial power, but has responded to its most notable instance by enacting legislation [the Torture Victim Protection Act] supplementing the judicial determination in some detail.''

The view expressed in the Alvarez Machain case last year was much the same, that no development in the last two centuries has ``categorically precluded federal courts from recognizing a claim under the law of nations as an element of common law.''

Different precedent, Tel Oren v. Libyan Arab Republic, also posits that civil liability should ensue from certain violations of international law, suggesting that the ``limits of section 1350's [the ATS] reach'' be defined by ``a handful of heinous actions--each of which violates definable, universal and obligatory norms.''

This legislation fills that legal vessel with the most egregious crimes: genocide, torture, slavery and slave trading, extrajudicial killing, and piracy. These jus cogen offenses are singled out through 1. stare decisis, 2. the Restatement (Third) of Foreign Relations Law, 3. academic writings, 4. official annual human rights assessments from the State Department and 5. among the writings and publications of many human rights and international law advocacy groups.

Congress is in the best position to make the determination of what falls within the ambit of the statute, not judges across America who lack expertise, time, and resources to assess what constitutes definable, specific, universal, and obligatory norms of international law. The bill, I would submit, represents a good faith effort in permitting these tortious acts, all firmly established and well defined in international law norms, to be prosecuted in U.S. district courts.

I was interested to read the views last year of the head of the National Foreign Trade Council, William Reinsch, that ``these cases are going to end up in the Supreme Court . . . and the Court will over time end up defining what in its judgment constitutes the law of nations and what does not. But that seems to us a fairly circuitous way of doing things.'' I would concur, particularly since the Supreme Court's decision last year in the Alvarez Machain case did not clear up the inherent vagaries in the law.

A significant provision in this legislation creates a standard of liability that requires plaintiffs to show that a defendant directly participated with specific intent in carrying out the alleged tort. In my view, we need to deter legal fishing expeditions, whereby plaintiffs come to the bar with flinty facts backing weak charges.

Their real intent, it seems, is to rely on an extensive legal discovery process to uncover matters that embarrass companies and delay their business plans.

In the groundbreaking 1980 Filartiga v. Pena-Irala case, for example, the threshold requirement laid out was that the offense needed to be ``clear and unambiguous'' to be viable under the statute. Succeeding cases have affirmed a standard essentially requiring proof of a defendant aiding and abetting the worst human rights violations. This bill replaces the current aiding and liability standard for good reason: these foreign-based claims demand a particularity of facts that is both strong and specific.

I would submit that the existing ambiguous grant of jurisdiction needs more refinement to provide judges legal bright lines for deciding these cases. My bill offers precise, and fair, treatment for which cases get standing in a U.S. court.

A common theme in dozens of cases alien tort cases is whether the facts and law combine to present a nonjusticiable political question. Each cause of action is obviously different, and whether the matter ought to be under the province of a different branch of government requires careful analysis.

I would certainly agree that certain prudential doctrines, act of state, political question, foreign sovereign immunity, forum non conveniens, and considerations of comity among nations, at times can be appropriately invoked to limit jurisdiction.

Part of that consideration can usefully come from statements of interest and certifications submitted by the Executive branch; for that reason, the legislation I'm offering preserves a suitable role for the Executive branch to weigh in. If a judge determines that a certification offered by the State Department adequately justifies that harm will come to U.S. foreign policy interests if an alien tort suit proceeds, then dismissal is warranted.

In regards to restricting the statute of limitations to ten years, equitable tolling considerations should be explicitly considered in interpreting provisions in the legislation. There are numerous factors that give rise to equitable tolling and long-established judge-made doctrine in this area is not inconsistent with the goals of my bill.

Complementary legislation which I raised earlier, the Torture Victim Protection Act, upholds the principle of equitable tolling. The Judiciary Committee report on that measure notes some common examples:

``The statute of limitation should be tolled during the time the defendant was absent from the United States or from any jurisdiction in which the same or a similar action arising from the same facts may be maintained by the plaintiff, provided that the remedy in that jurisdiction is adequate and available. Excluded also from calculation of the statute of limitations would be the period when a defendant has immunity from suit. The statute of limitations should also be tolled for the period of time in which the plaintiff is imprisoned or otherwise incapacitated.''

I would submit that all of these listed circumstances, and others, are sufficient to suspend the running of the time under my legislation.

Let me conclude by referring back to one of the Supreme Court's foundational points in the Alvarez-Machain case that ``despite considerable scholarly attention, it is fair to say that a consensus understanding of what Congress intended has proven elusive.''

The 33 words contained in the law remain a ``legal Lohengrin'' since ``no one seems to know whence it came'' added a judge hearing a different case some years ago. As a result, costly, complex litigation proceeds forward across the country.

Courts deserve guidance from Congress about how to treat and interpret the statute, particularly in light of the growing importance of international trade and commerce. In a major address Supreme Court Justice O'Connor recently observed that ``international law has emerged in ways that affect all courts, both here and abroad. The reason is globalization. Its importance should not be underestimated. Thirty percent or more of our gross domestic product is internationally derived.'' Yet these particular suits, brought by foreigners for massive monetary damages, threaten the international economic activities that are important to sustaining the American economy.

The suits should be able to go forward, but judges need better legal tools to make heads or tails of the cases that come before them hence the motivation for introducing the Alien Tort Statute Reform Act.

With full understanding of the Supreme Court's admonition to act with judicial caution in framing the alien tort statute, I believe it is time for Congress to bring clarity to the law and this proposed legislation does so.

I look forward to working with colleagues on the Judiciary Committee, through the hearing process and other means, to give this matter serious consideration by the Legislative branch.

I ask unanimous consent that the text of the legislation be printed in the Record.

Mr. President, I rise today to introduce a bill, along with the Senator from Vermont who we will hear from shortly, that will help enhance the openness of the Federal Government. This bill is called the Open Government Act of 2005. It is a bipartisan effort to improve and update our public information laws--particularly the Freedom of Information Act.

The purpose of the bill is to arm the American people with the information they need to make certain that ours remains a government whose legitimacy is derived from the consent of the governed. This legislation will significantly expand the accessibility, accountability, and openness of the Federal Government.

Open government, of course, is one of the most basic requirements of a healthy democracy. It allows taxpayers to see where their money is going. It permits the honest exchange of information that ensures government accountability, and it upholds the ideal that government never rules without the consent of the governed. As is so often the case, Abraham Lincoln said it best:

No man is good enough to govern another without that

person's consent.

But achieving the true consent of the governed requires something more than just holding elections every couple of years. What we need is informed consent. Informed consent is impossible without open and accessible government.

It has been nearly a decade since Congress has approved major reforms to the Freedom of Information Act. The Senate Judiciary Committee has not convened an oversight hearing to examine the Freedom of Information Act compliance issue since 1992. And at that time, I believe it is clear that the growth of technology and the Internet has created a real desire among the American people to achieve direct, efficient, and open access to government information.

I thank my colleague from Vermont, the ranking member of the Judiciary Committee, who has long been a champion of these issues, for his hard work on this bill. Together our offices have spent a good deal of time meeting with open government advocates. I am proud to say this bill is supported by a broad coalition across the ideological spectrum, because I believe this legislation should not be a partisan or special interest bill. Indeed, it is not.

I ask unanimous consent that these endorsement letters from dozens of watchdog groups across the political spectrum be printed in the Record at the close of my remarks.

Mr. President, as the Senator from Vermont said at a recent Judiciary Committee hearing:

I have always found that every administration, Republican

or Democrat, would love to keep a whole lot of things from

the public. They do something they are proud of, they will

send out a hundred press releases. Otherwise, they will hold

it back. We have the Freedom of Information Act, which is

a very good thing. It keeps both Democratic and Republican

administrations in line.

I agree with that. Essentially, we are talking about human nature. It is only natural that elected officials and Government leaders want recognition for their successes but not their failures. But we, as a healthy democracy, need to know the good, the bad, and the ugly.

The news media, of course, is the main way people get information about the Government. The media pushes Government entities and elected officials, bureaucrats, and agencies to release information that the people have the right to know, occasionally exposing waste, fraud, and abuse--and hopefully more often than that letting the American people know what a good job their public officials are doing.

But we have also seen in recent years an expansion of other outlets for sharing information outside of the mainstream media to online communities, discussion groups, and blogs. I believe all these outlets can and do contribute to the health of our political democracy.

Let me make this clear. This is not just a bill for the media, lest anybody be confused. This is a bill that will benefit every man, woman, and child in the United States of America who cares about the Federal Government, cares about how the Federal Government operates, and ultimately cares about the success of this great democracy.

By reforming our information policies in order to guarantee true access by all citizens to Government records, we will revitalize the informed consent that keeps America free. The Open Government Act contains over a dozen substantive provisions, designed to achieve the following four objectives:

First, it will strengthen the Freedom of Information Act and close loopholes.

Secondly, it will help Freedom of Information Act requesters obtain timely responses to their requests.

Third, it will ensure that agencies have strong incentives to comply with the law in a timely fashion.

Fourth, it will provide Freedom of Information Act officials; that is, people within Government agencies, with all the tools, including the education, they need in order to ensure that our Government remains open and accessible.

This legislation is not just pro-openness, pro-accountability and pro-accessibility; it is also pro-Internet. It contains important congressional findings to reiterate the presumption of openness. It includes a provision for a hotline that enables citizens to track the requests and even allows tracking of those requests via the Internet. As a whole, the Open Government Act reiterates the principle that our Government is based not on the need to know but rather on the right to know.

We all recognize that America's security should never take a back seat. But nor should the claim, without justification, of national security be used as a barrier against allowing taxpayers to know how their money is being spent.

There is a broad consensus across the aisle, the political spectrum, that we currently overclassify Government documents, and that many documents and much information is placed beyond the public view without any real justification. I believe we need a system of classification that strikes the right balance between the need to classify documents in the interest of our national security and our national values of open government.

Our default position of the U.S. Government must be one of openness. If records can be open, they should be open. If there is a good reason to keep something closed, it is the Government that should bear the burden, not the other way around.

Open government is fundamentally an American issue. It is literally necessary to preserve our way of life as a self-governing people. Ensuring the accessibility, accountability, and openness of the Federal Government is a cause worthy of preservation, and I call on my colleagues to join the Senator from Vermont and I today in taking a meaningful step toward that goal.

Finally, before I yield the floor to the Senator from Vermont, let me again express my appreciation to him and his staff. They have worked very closely with my staff. This is one of those good Government initiatives that knows no party affiliation, no ideological affiliation, but is really one that is essential to the preservation of our way of life as a self-governing democracy.

Exhibit 1

Openness Promotes Effectiveness in our National Government Act of 2005

Led by U.S. Senators John Cornyn and Patrick Leahy, the

OPEN Government Act of 2005 is a bipartisan effort to achieve

meaningful reforms to federal government information laws--

including most notably the Freedom of Information Act of 1966

(``FOIA''). If enacted, the legislation would substantially

enhance and expand the accessibility, accountability, and

openness of the federal government. It has been nearly a

decade since Congress has approved major reforms to FOIA.

Moreover, the Senate Judiciary Committee has not convened an

oversight hearing to examine FOIA compliance issues since

April 30, 1992. (The Senate Homeland Security and

Governmental Affairs Committee, which shares jurisdiction

over federal government information laws with the Judiciary

Committee, has not held a FOIA oversight hearing since 1980.)

This legislation is the culmination of months of extensive

discussions between the offices of Senators Cornyn and Leahy

and various members of the requestor community. The bill is

supported by Texas Attorney General Greg Abbott and a broad

coalition of organizations across the ideological spectrum,

including:

American Association of Law Libraries

American Civil Liberties Union

American Library Association

American Society of Newspaper Editors

Associated Press Managing Editors

Association of Health Care Journalists

Center for Democracy & Technology

Coalition of Journalists for Open Government

Committee of Concerned Journalists

Education Writers Association

Electronic Privacy Information Center

Federation of American Scientists/Project on Government

Secrecy

Free Congress Foundation/Center for Privacy & Technology

Policy

Freedom of Information Center, University of Missouri

The Freedom of Information Foundation of Texas

The Heritage Foundation/Center for Media and Public Policy

Information Trust

National Conference of Editorial Writers

National Freedom of Information Coalition

National Newspaper Association

National Security Archive/George Washington University

Newspaper Association of America

People for the American Way

Project on Government Oversight

Radio-Television News Directors Association

The Reporters Committee for Freedom of the Press

Society of Environmental Journalists

The Act contains important Congressional findings to

reiterate and reinforce the view that the Freedom of

Information Act establishes a presumption of openness, and

that our government is based not on the need to know, but

upon the fundamental right to know. The Act also contains

over a dozen substantive provisions, designed to achieve the

following four objectives:

(1) Strengthen FOIA and close loopholes

(2) Help FOIA requestors obtain timely responses to their

requests

(3) Ensure that agencies-have strong incentives to act on

FOIA requests in a timely fashion

(4) Provide FOIA officials with all of the tools they need to

ensure that our government remains open and accessible

strengthen foia and close loopholes

Ensure that FOIA applies when agency recordkeeping

functions are outsourced

Establish a new open government impact statement, by

requiring that any future Congressional attempt to create a

new FOIA exemption be expressly stated within the text of the

legislation

Impose annual reporting requirement on usage of the DHS

disclosure exemption for critical infrastructure information

Protect access to FOIA fee waivers for legitimate

journalists, regardless of institutional association--

including bloggers and other Internet-based journalists

Provide reliable reporting of FOIA performance, by

requiring agencies to distinguish between first person

requests for personal information and other kinds of requests

help foia requestors obtain timely responses

Establish FOIA hotline services, either by telephone or on

the Internet, to enable requestors to track the status of

their requests

Create a new FOIA ombudsman, located at the Administrative

Conference of the United States, to review agency FOIA

compliance and provide alternatives to litigation

Authorize reasonable recovery of attorney fees when

litigation is inevitable

ensure that agencies have strong incentives to act on foia requests in

timely fashion

Restore meaningful deadlines for agency action by ensuring

that the 20-day statutory clock runs immediately upon the

receipt of the request

Impose real consequences on federal agencies for missing

statutory deadlines

Enhance authority of the Office of Special Counsel to take

disciplinary action against government officials who

arbitrarily and capriciously deny disclosure

Strengthen reporting requirements on FOIA compliance to

identify agencies plagued by excessive delay, and to identify

excessive delays in fee status determinations

provide foia officials with the tools they need to ensure that our

government remains open and accessible

Improve personnel policies for FOIA officials to enhance

agency FOIA performance

Examine the need for FOIA awareness training for federal

employees

Determine appropriate funding levels needed to ensure

agency FOIA compliance

Openness Promotes Effectiveness in our National Government Act of 2005

Section-by-Section Analysis

Sec. 1. Short Title. The Open Government Act of 2005.

Sec. 2. Findings. The findings reiterate the intent of

Congress upon enacting the Freedom of Information Act (FOIA),

5 D.S.C. 552 as amended, and restate FOIA's presumption in

favor of disclosure.

Sec. 3. Protection of Fee Status for News Media. This

section amends 5 U.S.C. 552(a)(4)(A)(ii) to make clear that

independent journalists are not barred from obtaining fee

waivers solely because they lack an institutional affiliation

with a recognized news media entity. In determining whether

to grant a fee waiver, an agency shall consider the prior

publication history of the requestor. If the requestor has no

prior publication history and no current affiliation with a

news organization, the agency shall review the requestor's

plans for disseminating the requested material and whether

those plans include distributing the material to a reasonably

broad audience.

Sec. 4. Recovery of Attorney Fees and Litigation Costs.

This section, the so-called Buckhannon fix, amends 5 U.S.C.

552(a)(4)(E) to clarify that a complainant has substantially

prevailed in a FOIA lawsuit, and is eligible to recover

attorney fees, if the complainant has obtained a substantial

part of his requested relief through a judicial or

administrative order or if the pursuit of a claim was the

catalyst for the voluntary or unilateral change in position

by the opposing party. The section responds to the Supreme

Court's ruling in Buckhannon Board and Care Home, Inc. v.

West Virginia Dep't of Health and Human Resources, 532 U.S.

598 (2001), which eliminated the ``catalyst theory'' of

attorney fee recovery under certain Federal civil rights

laws. FOIA requestors have raised concerns that the holding

in Buckhannon could be extended to FOIA cases. This section

preserves the ``catalyst theory'' in FOIA litigation.

Sec. 5. Disciplinary Actions for Arbitrary and Capricious

Rejections of Requests. FOIA currently requires that when a

court finds that agency personnel have acted arbitrarily or

capriciously with respect to withholding documents, the

Office of Special Counsel

shall determine whether disciplinary action against the

involved personnel is warranted. See 5 U.S.C. 552(a)(4)(F).

This section of the bill amends FOIA to require the Attorney

General to notify the Office of Special Counsel of any such

court finding and to report the same to Congress. It further

requires the Office of Special Counsel to report annually to

Congress on any actions taken by the Special Counsel to

investigate cases of this type.

Sec. 6. Time Limits for Agencies to Act on Requests. The

section clarifies that the 20-day time limit on responding to

a FOIA request commences on the date on which the request is

first received by the agency. Further, the section states

that if the agency fails to respond within the 20-day limit,

the agency may not then assert any FOIA exemption under 5

U.S.C. 552(b), except under limited circumstances such as

endangerment to national security or disclosure of personal

private information protected by the Privacy Act of 1974,

unless the agency can demonstrate, by clear and convincing

evidence, good cause for failure to comply with the time

limits.

Sec. 7. Individualized Tracking Numbers for Requests and

Status Information. Requires agencies to establish tracking

systems by assigning a tracking number to each FOIA

request: notifying a requestor of the tracking number

within ten days of receiving a request; and establishing a

telephone or Internet tracking system to allow requestors

to easily obtain information on the status of their

individual requests, including an estimated date on which

the agency will complete action on the request.

Sec. 8. Specific Citations in Exemptions. 5 U.S.C.

552(b)(3) states that records specifically exempted from

disclosure by statute are exempt from FOIA. This section of

the bill provides that Congress may not create new statutory

exemptions under this provision of FOIA unless it does so

explicitly. Accordingly, for any new statutory exemption to

have effect, the statute must cite directly to 5 U.S.C.

552(b)(3), thereby conveying congressional intent to create a

new (b)(3) exemption.

Sec. 9. Reporting Requirements. This section adds to

current reporting requirements by mandating disclosure of

data on the 10 oldest active requests pending at each agency,

including the amount of time elapsed since each request was

originally filed. This section further requires agencies to

calculate and report on the average response times and range

of response times of FOIA requests. (Current requirements

mandate reporting on the median response time.) Finally, this

section requires reports on the number of fee status requests

that are granted and denied and the average number of days

for adjudicating fee status determinations by individual

agencies.

Sec. 10. Openness of Agency Records Maintained by a Private

Entity. This section clarifies that agency records kept by

private contractors licensed by the government to undertake

recordkeeping functions remain subject to FOIA just as if

those records were maintained by the relevant government

agency.

Sec. 11. Office of Government Services. This section

establishes an Office of Government Information Services

within the Administrative Conference of the U.S. Within that

office will be appointed a FOIA ombudsman to review agency

policies and procedures, audit agency performance, recommend

policy changes, and mediate disputes between FOIA requestors

and agencies. The establishment of an ombudsman will not

impact the ability of requestors to litigate FOIA claims, but

rather will serve to alleviate the need for litigation

whenever possible.

Sec. 12. Accessibility of Critical Infrastructure

Information. This section requires reports on the

implementation of the Critical Infrastructure Information Act

of 2002, 6 U.S.C. 133. Reports shall be issued from the

Comptroller General to the Congress on the number of private

sector, state, and local agency submissions of CII data to

the Department of Homeland Security and the number of

requests for access to records. The Comptroller General will

also be required to report on whether the nondisclosure of

CII material has led to increased protection of critical

infrastructure.

Sec. 13. Report on Personnel Policies Related to FOIA. This

section requires the Office of Personnel Management to

examine how FOIA can be better implemented at the agency

level, including an assessment of whether FOIA performance

should be considered as a factor in personnel performance

reviews, whether a job classification series specific to FOIA

and the Privacy Act should be considered, and whether FOIA

awareness training should be provided to federal employees.

Exhibit 2

February 15, 2005.

Hon. John Cornyn,

Chairman, U.S. Senate Judiciary Subcommittee on the

Constitution, Civil Rights & Property Rights, Washington

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I am pleased to join Senator Coleman again this year to re-introduce the Ryan Haight Internet Pharmacy Consumer Protection Act. Our legislation will protect the safety of Americans who choose to purchase their prescription drugs legally over the Internet.

This legislation is necessary because of a growing problem of illegal prescription drug diversion and abuse of prescription drugs. Coupled with the ease of access to the Internet, it has led to an environment where illegitimate pharmacy websites can bypass traditional regulations and established safeguards for the sale of prescription drugs. Internet websites that allow consumers to obtain prescriptions drugs without the existence of a bona fide physician-patient relationship pose an immediate threat to public health and safety.

To address this problem, the Internet Pharmacy Consumer Protection Act makes several critical steps, to ensure safety and to assist regulatory authorities in shutting down ``rogue'' Internet pharmacies.

First, this bill establishes disclosure standards for Internet pharmacies.

Second, this bill prohibits the dispensing or sale of a prescription drug based solely on communications via the Internet such as the completion of an online medical questionnaire.

Third, it allows a State Attorney General to bring a civil action in a Federal district court to enjoin a pharmacy operation and to enforce compliance with the provisions of this law.

Under this bill, for a domestic Web site to sell prescription drugs legally, the web site would have to display identifying information such as the names, addresses, and medical licensing information for pharmacists and physicians associated with the Web site.

In addition, if a person wants to use the Internet to purchase their prescription drugs he or she will not be prohibited from doing so under this bill but, in order to do so, must already have a prescription for the drug that is valid in the United States prior to making the Internet purchase.

Reliance on the Internet for public health purposes and the expansion of telemedicine, particularly in rural areas, make it essential that there be at the very least a minimum standard for what qualifies as an acceptable medical relationship between patients and their physicians.

According to the American Medical Association, a health care practitioner who offers a prescription for a patient he or she has never seen before, based solely on an online questionnaire, generally does not meet the appropriate medical standard of care.

Let me illustrate the situation facing our country today. If a physician's office prescribed and dispensed prescription drugs the same way Internet pharmacies currently can do, it would look something like this: a physician opens a physical office, asks a patient to fill out a medical history questionnaire in the lobby and give his or her credit card information to the office manager. There is no nurse, and therefore no one to take the patients' height, weight, blood pressure, verify his or her medical history, and so forth and no one to answer the patient's questions regarding their health.

The questionnaire is then slipped through a hole in the window; the office manager takes it to the physician, or person acting as the physician, who then writes the prescription and hands it to the pharmacist, or person acting as the pharmacist, in the next room. Once the patient signs his credit card, he is on his way out the door, drugs in hand.

No examination is performed, no questions asked, and no verification or clarification of the answers provided on the medical history questionnaire.

This illustration is not an exaggeration. It occurs everyday all across the United States. The National Association of Boards of Pharmacy estimates that there are around 500 identifiable rogue pharmacy Web sites operating on the Internet.

According to the Federation of State Medical Boards, 31 States and the District of Columbia either have laws or medical board initiatives addressing Internet medical practice.

Many States have already enacted laws defining acceptable practices for qualifying medical relationships between doctors and patients and this bill would not affect any existing State laws.

For example, California law was changed in 2000 to say: ``no person or entity may prescribe, dispense, or furnish, or cause to be prescribed, dispensed, or furnished dangerous drugs or dangerous devices [defined as any drug or device unsafe for self-use] on the Internet for delivery to any person in this state, without a good faith prior examination and medical indication . . .''

I believe California's law is a perfect example of why this legislation is needed. The law only applies to persons living in California. As we all know, however, the Internet is not bound by State or even country borders.

This legislation makes a critical step forward by providing additional authority for State Attorneys General to file an injunction in Federal court to shut down an Internet site operating in another State that violates the provisions in the bill.

Under current law, in order to close down an Internet website selling prescription drugs prosecutors must take enforcement actions in every State where the Internet pharmacy operates, requiring a tremendous amount of resources in an environment where the location of the website is difficult, if not impossible, to determine or keep track of.

This bill will allow a State Attorney General to bring a civil action in a Federal district court to enjoin a pharmacy operation and to enforce compliance with the provisions of the law in every jurisdiction where the pharmacy is operating.

While this legislation pertains to domestic Internet pharmacies, the practice of international pharmacies selling low-cost drugs to U.S. consumers who have valid prescriptions from their doctors deserves to be discussed and debated on the Senate floor. It is my hope that the Senate will act this year on prescription drug importation legislation.

In closing, I want to share with you the story of Ryan T. Haight of La Mesa, California in whose memory this bill is named.

Ryan was an 18-year old honor student from La Mesa, CA, when he died in his home on February 12, 2001.

His parents found a bottle of Vicodin in his room with a label from an out-of-State pharmacy.

It turns out that Ryan had been ordering addictive drugs online and paying with a debit card his parents gave him to buy baseball cards on eBay.

Without a physical exam or his parents' consent, Ryan had been obtaining controlled substances, some from an Internet site in Oklahoma. It only took a few months before Ryan's life was ended by an overdose on a cocktail of painkillers.

Ryan's story and others like it force us to ask why anyone in the U.S. would be able to access such highly addictive and dangerous drugs over the Internet with such ease?

Why was there no physician or pharmacist on the other end of this teenager's computer verifying his age, his medical history and that there was a valid prescription?

That is why I support this legislation. It makes sensible requirements of Internet pharmacy websites that will not impact access to convenient, oftentimes cost-saving drugs.

With simple disclosure requirements for Internet sites such as names, addresses and medical or pharmacy licensing information, patients will be better off and State medica1 and pharmacy boards can ensure that pharmacists and doctors are properly licensed.

Lastly, this bill will give State attorneys general the authority they need to shut down rogue Internet pharmacies operating in other states.

I urge my colleagues to support this bill.

Mr. President, I rise today to offer a resolution with Senators Snowe, McCain, Chafee, Murray, Jeffords, Durbin, Lieberman, Leahy, Lautenberg, Boxer, Cantwell, Akaka and Reed that urges the Administration to participate in international negotiations and actively reduce our greenhouse gas emissions that contribute to global warming.

The Kyoto Protocol goes into effect today. More than 140 nations, including all 25 members of the European Union, Russia and China, have ratified the agreement to reduce man-made emissions of greenhouse gases.

The United States, which accounts for about one-fourth of the greenhouse gases believed responsible for global warming, has refused to ratify the treaty.

Thirty-five of the world's thirty-eight industrialized countries-- except for the United States, Australia, and Monaco--have ratified this important treaty.

This means that industrialized nations are bound to cut their combined greenhouse gases by 5 percent below 1990 levels between 2008 and 2012.

The United States is missing an important opportunity to protect our planet's environment by not ratifying the Protocol.

I believe this is a huge mistake.

There is emerging consensus that global warming is real.

According to the National Academy of Sciences, ``Since the 1900s global average temperature and atmospheric carbon dioxide concentration have increased dramatically, particularly compared to their levels in the 900 preceding years.''

Scientists now agree on three main Facts about global warming.

Fact 1: The Earth is warming.

Fact 2: The primary cause of this warming is man-made activities, especially fossil fuel consumption.

Fact 3: If we don't act now to reduce emissions, the problem will only get worse.

We have already begun to see the impacts of climate change: four hurricanes of significant force pounded the state of Florida in a six week period last fall. The storms formed over an area of the ocean where surface temperatures have increased an average of 17 degrees over the past decade.

Eskimos are being forced inland in Alaska as their native homes on the coastline are melting into the sea.

Glaciers are beginning to disappear in Glacier National Park in Montana. In 100 years, the Park has gone from having 150 glaciers to fewer than 30. And the 30 that remain are two-thirds smaller than they once were.

In California, water supplies are threatened by smaller snowpacks in the Sierra Nevada. Record snowfalls this winter have provided hope for this summer but the region still could face drought or floods unless temperatures stay cold enough to maintain the snowpack and average snowfall continues for the rest of the precipitation season.

If we take strong action to reduce greenhouse gas emissions, there will be 27 percent snowpack remaining in the Sierras at the end of the century.

However, if we do nothing to reduce our greenhouse gas emissions, there will only be 11 percent snowpack left in the Sierras at the end of the century.

The San Diego based Scripps Institution of Oceanography, a preeminent center for marine science research, will release a study later this week showing that global warming will likely have serious ramifications in the very near future, including: a water crisis in the western United States in the next 20 years due to smaller snowpacks.

The disappearance of the glaciers in the Andes in Peru in as little as 10 years, leaving the population without an adequate water supply during the summer.

The melting of two-thirds of the glaciers in western China by 2050, seriously diminishing the water supply for the region's 300 million inhabitants.

Further, the UN Comprehensive Assessment of Freshwater Resources of the World estimates that by 2025, around 5 billion people, out of a total

world population of 8 billion, will not have access to adequate water supplies.

And concern about the effects of climate change is mounting around the world.

Scientists fear that an ``ecological catastrophe'' is developing in Tibet with the melting of the region's glaciers as a result of global warming.

Glaciers in West Antarctica are thinning twice as fast as they did in the 1990s

The mean air temperature has risen 4-5 degrees in Alaska in the past three decades causing glaciers to melt and the coastline to recede.

Peru's Quelccaya ice cap, the largest in the tropics, could be gone by 2100 if it continues to melt at its current rate--contracting more than 600 feet a year in some places.

In addition, according to National Geographic, ``the famed snows of Kilimanjaro have melted more than 80 percent since 1912. Glaciers in the Garhwal Himalaya in India are retreating so fast that researchers believe that most central and eastern Himalayan glaciers could virtually disappear by 2035. Arctic sea ice has thinned significantly over the past half century, and its extent has declined by about 10 percent in the past 30 years. Greenland's ice sheet is shrinking.''

The Pew Center for Climate Change reports strong evidence of global warming in the United States. The findings included: the red fox has shifted its habitat northward, where it is encroaching on the Arctic fox's range.

Southern, warm-water fish have begun to infiltrate waters off Monterey, California, which were previously dominated by colder-water species.

The Alaskan tundra, which has for thousands of years been a depository for carbon dioxide, has begun to release more of the gas into the air than it removes because warmer winters are causing stored plant matter to decompose.

There have been documented trends in which the natural timing of animal or insect life cycles changed and the plants on which they depended did not. Many Southern species of butterflies have disappeared entirely over the past century as their range contracted.

According to the International Climate Change Taskforce, of which Senator Snowe is a Co-Chair, if the earth's average temperature increases by more than 2 degres Celsius, or 3.6 degrees Fahrenheit, the world could face substantial agricultural losses, countless people at risk of water shortages, and widespread adverse health impacts such as malaria.

Even more critically, if the temperature rises more than 3.6 degrees Fahrenheit, we could be at risk for catastrophic/weather events. For instance, we would risk losing the West Antarctic and Greenland ice sheets, which could raise sea levels, shut down the Gulf Stream, and destroy the world's forests.

Climate change is real. Its impacts are already being felt. If emissions keep growing at projected levels, greenhouse gases in our atmosphere will reach levels unknown since the time of the dinosaurs during the lifetimes of children born today.

That is why my colleagues and I have introduced this resolution that: Urges the Administration to engage in international discussions on post-Kyoto greenhouse gas reductions.

Calls upon the Administration to take action NOW to reduce emissions domestically.

Encourages the United States to keep global average temperatures from increasing more than 3.6 degrees Fahrenheit over pre-industrial levels.

As the world's largest emitter of greenhouse gases, it is the responsibility of the United States to lead by example. By not ratifying the Kyoto Protocol, we have sent a harsh message to the world that the largest emitter and contributor to global warming refuses to participate in a worldwide program aimed at reducing greenhouse gases.

But fortunately, even though the federal government has refused to acknowledge global warming, many States have recognized that in spite of the federal government's inaction, action must be taken.

Nearly 40 States have developed their own climate plans.

A emission trading system is emerging in the Northeast that will require large power plants from Maine to Delaware to reduce their carbon emissions.

Eighteen States and Washington, DC have enacted renewable portfolio standards. They include Arizona, California, Colorado, Connecticut, Hawaii, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, Pennsylvania, Rhode Island, Texas, and Wisconsin.

California has enacted legislation that will reduce greenhouse gas emissions from vehicle tailpipes--it is expected that the Northeastern States and Canada will also follow California's lead.

Yet without concerted Federal action, the United States will not be able to achieve real, significant greenhouse gas reductions.

As the world's largest greenhouse gas emitter, we must act now to reduce the impacts of climate change and save the environment for future generations.

The Kyoto Protocol ends in 2012. Though the Protocol ends, the United States needs to lead and move to negotiate a post-Kyoto framework. There are many things we can do. For example, we can: use our forests and our farmland as a depository for carbon to prevent it from being released into the atmosphere; develop new technologies such as clean coal, renewable energy, and hydrogen vehicles; make better use of existing technologies such as hybrid vehicles and energy efficient buildings, appliances, and power generation; and use market-based programs, such as cap and trade, to reduce emissions with the least harm to economy.

Being a responsible steward of the climate is more than just taking steps to pollute less. It also requires participating in international negotiations on the policies the world will need to achieve significant, long-term reductions in greenhouse gas emissions.

I ask unanimous consent that the text of the joint resolution be printed in the Record.

Mr. President, I opposed the bankruptcy reform bill because it was an outdated bill that failed to include adequate consumer protections. We saw a record number of consumer bankruptcy filing prior to the October 17 implementation deadline for the harsh new bankruptcy. Not enough was included in the legislation to protect consumers from predatory lenders or to make credit counseling a viable alternative to bankruptcy or to better inform over extended consumers about the true costs of their debts. I was disappointed that the Senate failed to effectively address these issues in a meaningful way, and instead, passed an outdated bill that forces working families into more costly and difficult bankruptcy proceedings. I am committed to making improvements in this flawed law.

Today, I am introducing two bills that address flaws in the bankruptcy reform law. The first bill is the Predatory Payday Loan Prohibition Act. This bill would prevent federally-insured financial institutions from originating predatory payday loans. Payday loans are small cash loans repaid by borrowers' postdated checks or borrowers' authorizations to make electronic debits against existing financial accounts. Payday loan amounts are usually in the range of $100 to $500 with full payment due in 2 weeks. Finance charges on payday loans are typically in the range of $15 to $30 per $100 borrowed, which translates into triple digit interest rates in the range of 390 percent to 780 percent when expressed as an annual percentage rate. Loan flipping, which is a common practice, is the renewing of loans at maturity by paying additional fees without any principal reduction. Loan flipping often leads to instances where the fees paid for a payday loan well exceed the principal borrowed. This situation often creates a cycle of debt that is hard to break.

Industry analysts conservatively estimate that more than 15,000 payday advance locations across America extend about $25 billion in short-term credit to millions of households experiencing cash-flow shortfalls. Too many of its customers are low-income, working families. More and more customers are the financially stretched middle class, including people who have maxed out their credit cards, people perhaps who have lost a job, or people with no savings to fall back on during a situation that causes a cash-flow shortfall, such as a medical emergency.

Payday lending is also rampant in the military. One in five servicemembers have used payday lenders in the last year, according to the report, ``Payday Lenders Target the Military,'' by the Center for Responsible Lending. Payday lenders exploit people in financial need and profit enormously from these loans. We must act to protect vulnerable consumers from these predatory lenders.

In addition, I previously introduced S. 1347, the Low-Cost Alternatives to Payday Loans Act. This bill would authorize award demonstration project grants for eligible entities to provide consumers with low-cost, small loan alternatives to more costly and predatory payday loans. Loan alternatives that meet the needs of consumers and are at a fair price must be developed.

Today, I am also introducing the Bankruptcy Prevention Credit Counseling Act. The new bankruptcy reform law does not allow consumers to declare personal bankruptcy in either chapter 7 or chapter 13, unless they receive a briefing from an approved nonprofit credit counseling agency within 6 months of filing. The credit counseling instructional course requirement is intended to provide financial education to consumers who declare bankruptcy so they can attempt to avoid future financial problems.

About one in three consumers in credit counseling enter a debt management plan. In exchange, creditors may agree to concessions so that consumers pay off as much of their outstanding debt as possible. Examples of concessions can include a reduced interest rate on the amount they owe and the elimination of fees. Unfortunately, most credit card companies have become increasingly unwilling to significantly reduce interest rates for consumers in credit counseling.

The Bankruptcy Prevention Credit Counseling Act would prevent unsecured creditors, primarily credit card issuers, from attempting to collect accruing interest and additional fees from consumers in bankruptcy, if the creditor does not have a policy of waiving interest and fees for debtors who enter a consolidated payment plan at a credit counseling agency. Since the new bankruptcy law requires that consumers enter credit counseling before filing for bankruptcy, we must ensure that consumers are given a fair chance at reducing their debt burden.

I also offered the text of the amendment of my bill, S. 393, the Credit Card Minimum Payment Warning Act, as an amendment to the bankruptcy bill. My amendment, intended to provide consumers with adequate, timely, and meaningful disclosures, was unfortunately defeated. As the bankruptcy reform law makes it more difficult for consumers to discharge their debts in bankruptcy, we have a responsibility to provide meaningful additional information so that consumers can make better informed debt management decisions. The bankruptcy reform law includes a requirement that credit card issuers provide a generic warning about the consequences of only making the minimum payment. This requirement fails to provide consumers the detailed information that my amendment would have provided, which means detailed, personalized information necessary for them to make better informed choices about their credit card use and repayment. My amendment would have required companies to inform consumers of how many years and months it would take to repay their entire balance, and the total cost in interest and principal, if the consumer makes only the minimum payment. My legislation would also have required consumers to be provided with the amount they would need to pay to eliminate their outstanding balance in 36 months. Finally, my legislation would have required that creditors establish a toll-free number so that consumers can access trustworthy credit counselors. In response to criticisms that my amendment was not feasible, I, along with

Senator Sarbanes, requested that the Government Accountability Office study the issue. I am hopeful the report will provide helpful information as we must continue to improve meaningful and understandable disclosures that will help Americans better manage their credit card debts.

I want to take a moment to thank Senator Sarbanes, and his Banking Committee staff, for working with me on this and many other financial literacy related issues. In addition, I also want to thank Senator Leahy and the staff of the Judiciary Committee for all of their efforts to try and improve the flawed bankruptcy legislation.

I fear that the bankruptcy reform law will significantly harm families who have suffered financially due to illnesses, the loss of a job, or the death of a loved one. I remain committed to working with all of my colleagues to better protect and inform consumers and to hold the credit card industry accountable for its aggressive marketing of credit to our debt burdened society.

Mr. President, I rise to introduce the Predatory Payday Loan Prohibition Act of 2005. Currently, federal law authorizes insured depository institutions to export interest rates, as provided under the laws of the state where the bank or credit union is located, to out-of- state borrowers. My bill would effectively eliminate the ability of financial institutions to do this by prohibiting federally-insured financial institutions from originating predatory payday loans.

What constitutes a payday loan? These are small cash loans repaid by borrowers' postdated checks or borrowers' authorizations to make electronic debits against existing financial accounts. Payday loan amounts are usually in the range of $100 to $500 with payment in full due in two weeks. Finance charges on payday loans are typically in the range of $15 to $30 per $100 borrowed, which translates into triple digit interest rates in the range of 390 percent to 780 percent when expressed as an annual percentage rate. Loan flipping, which is a common practice, is the renewing of loans at maturity by paying additional fees without any principal reduction. Loan flipping often leads to instances where the fees paid for a payday loan well exceed the principal borrowed. This situation often creates a cycle of debt that is hard to break. Today, industry analysts conservatively estimate that more than 15,000 payday advance locations across America extend about $25 billion in short-term credit to millions of households experiencing cash-flow shortfalls.

I am appalled that the payday lending industry is portrayed as a legitimate business. Too many of its customers are low-income, working families. More and more customers are the financially stretched middle class including people who have maxed out their credit cards, people perhaps who have lost a job, or people with no savings to fall back on during a situation that causes a cash-flow shortfall, such as a medical emergency. Payday lending is also rampant in the military. One in five servicemembers have used payday lenders in the last year, according to the report, ``Payday Lenders Target the Military,'' by the Center for Responsible Lending. Payday lenders are concentrated around military bases, such as the Navy bases in Norfolk, Virginia, the Army's Fort Lewis in Washington State, and the Marine Corps base at Camp Pendleton in California. The Department of Defense confirms the Center's report by listing payday lending as one of the top 10 priority issues facing military families, according to Dr. David Chu, the Under Secretary of Defense for Personnel and Readiness. To the predatory lenders, our military personnel's government paychecks represent a reliable source of fees. Also, payday lenders can be relatively confident that borrowers will continue to pay, because military personnel face harsh consequences, such as court martial or dishonorable discharge, for not repaying their debts. I am pleased that in my home state a local credit union, Windward Community Federal Credit Union, Kailua, Hawaii, has developed an affordable, alternative product to offer the many Marines who live in its service area. Earlier this year I introduced another bill to encourage replication of such practices. S. 1347, the Low-Cost Alternatives to Payday Loans Act, would authorize demonstration project grants to eligible entities to provide low-cost, small loans to consumers that would provide alternatives to more costly, predatory payday loans so that more people could have access to payday loan alternatives.

Payday loan providers claim that they are offering a simple financial product that addresses an emergency or temporary credit need that usually cannot be met by traditional financial institutions. An analysis of payday lending statistics by the Center for Responsible Lending indicates that the majority of payday loan borrowers have multiple loans each year with two thirds having five or more payday loans annually and half of these borrowers having 12 or more payday loans annually. Some borrowers seek loans from two or more payday lenders, multiplying the potential for getting trapped in debt. Research by the Community Financial Services Association of America, the payday loan industry's national trade association, found that 40 percent of payday loan customers renew their payday loans a staggering five times or more.

The payday loan industry exploits people that are in financial need. Congress has failed to act to prevent the exploitation of working families that are short on cash due to unexpected medical expenses or other needs. We must act to protect consumers from these unscrupulous lenders. I remain committed to restricting all forms of predatory lending, including payday loans, and I encourage my colleagues to support this legislation.

Mr. President, I ask unanimous consent that the text of the bill and a letter of support be printed in the Record.

Mr. President, I rise to introduce the Bankruptcy Prevention Credit Counseling Act. The new bankruptcy reform law does not allow consumers to declare personal bankruptcy in either Chapter 7 or Chapter 13, unless they receive a briefing from an approved nonprofit credit counseling agency within 6 months of filing. The credit counseling instructional course requirement is intended to provide financial education to consumers who declare bankruptcy so they can attempt to avoid future financial problems.

About one in three consumers in credit counseling enter a debt management plan. In exchange, creditors may agree to concessions so that consumers pay off as much of their outstanding debt as possible. Concessions can include a reduced interest rate on the amount they owe and the elimination of fees. Unfortunately, most credit card companies have become increasingly unwilling to significantly reduce interest rates for consumers in credit counseling. A study by the National Consumer Law Center and the Consumer Federation of America revealed that 5 of 13 credit card issuers increased the interest rates they offered to consumers in credit counseling between 1999 and 2003. American Express and Wells Fargo completely waive all interest for consumers in credit counseling. However, the majority of credit card issuers charge interest rates above 9 percent for account holders that enter into credit counseling, with several charging more than 15 percent.

My bill would prevent unsecured creditors, primarily credit card issuers, from attempting to collect accruing interest and additional fees from consumers in bankruptcy, if the creditor does not have a policy of waiving interest and fees for debtors who enter a consolidated payment plan at a credit counseling agency.

Since the new bankruptcy law requires that consumers enter credit counseling before filing for bankruptcy, we must ensure that credit counseling is truly effective and a viable alternative to bankruptcy. Credit card issuers undermine the good intentions of those consumers. They have sharply curtailed the concessions they offer to consumers in credit counseling, contributing to increased bankruptcy filings. According to a survey by VISA USA, 33 percent of consumers who failed to complete a debt management plan in credit counseling said they would have stayed on the plan if creditors had lowered interest rates or waived fees. Credit card companies have an obligation to ensure that effective alternatives are readily available to the consumers they aggressively pursue.

We must make sure that credit counseling is an effective tool to help consumers avoid bankruptcy. In order to do this, credit card issuers should waive the amount owed in interest and fees for consumers who enter a consolidated payment plan. Successful completion of a debt management plan benefits both creditors and consumers. Mr. President, for many consumers, paying off their debt is not easy. My bill will help people who are struggling to repay their obligations. I encourage all of my colleagues to support this legislation to help consumers enrolled in debt management plans to successfully repay their creditors, free themselves from debt, and avoid bankruptcy.

I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, today I am introducing the second in a series of bills intended to support American companies and American workers. Yesterday, I submitted S. Con. Res. 12, which would set some minimum standards for future trade agreements into which our country enters.

The bill that I am introducing today, the Buy American Improvement Act, focuses on the Federal Government's responsibility to support domestic manufacturers and workers and on the role of Federal procurement policy in achieving this goal. The reintroduction of this bill, which I first introduced in 2003, is part of my ongoing effort to find ways to stem the flow of manufacturing jobs abroad.

The Buy American Act of 1933 is the primary statute that governs Federal procurement. The name of this law accurately and succinctly describes its purpose: to ensure that the Federal Government supports domestic companies and domestic workers by buying American-made goods. This is an important law but, regrettably, it contains a number of loopholes that make it too easy for government agencies to buy foreign- made goods.

My bill, the Buy American Improvement Act, would strengthen the existing act by tightening its waiver provisions. Currently, the heads of Federal departments and agencies are given broad discretion to waive the Act and buy foreign goods. We should ensure that the Federal Government makes every effort to give Federal contracts to companies that will perform the work domestically. We should also ensure that certain types of industries do not leave the United States completely, thus making the Federal Government dependent on foreign sources for goods, such as plane or ship parts, that our military may need to acquire on short notice.

I have often heard my colleagues say on this floor that American-made goods are the best in the world. I could not agree more. Regrettably, nearly 80,000 good-paying manufacturing jobs have left my state since 2000. And the country has lost more than two-and-one-half million manufacturing jobs since January 2001, including more than 25,000 jobs last month alone. This hemorrhaging of jobs shows no signs of stopping. Congress should do more to support domestic manufacturers and their employees. One way to do this is to ensure that the Federal Government makes every effort to buy American-made goods.

There are five primary waivers to the Buy American Act, and my bill addresses four of them The first of these waivers allows an agency head to buy foreign goods if complying with the Act would be ``inconsistent with the public interest.'' I am concerned that this waiver, which includes no definition for what is ``inconsistent with the public interest,'' is actually a gaping loophole that gives too much discretion to department secretaries and agency heads. My bill would modify this waiver provision to prohibit it from being invoked by an agency or department head after a request for proposals, or RFP, has been published in the Federal Register. Once the bidding process has begun, the Federal Government should not be able to pull an RFP by saying that it is in the ``public interest'' to do so. This determination, sometimes referred to as the Buy American Act's national security waiver, should be made well in advance of placing a procurement up for bid. To do otherwise pulls the rug out from under companies that are spending valuable time and resources to prepare a bid for a Federal contract.

The Buy American Act may also be waived if the head of the agency determines that the cost of the lowest-priced domestic product is ``unreasonable,'' and a system of price differentials is used to assist in making this determination. My bill would modify this waiver to require that preference be given to the American company if that company's bid is substantially similar to the lowest foreign bid or if the American company is the only domestic source for the item to be procured.

I have a long record of supporting efforts to help taxpayers get the most bang for their buck and of opposing wasteful Federal spending. I don't think anyone can argue that supporting American jobs is ``wasteful.'' We owe it to American manufacturers and their employees to make sure they get a fair shake. I would not support awarding a contract to an American company that is price gouging, but we should make every effort to ensure that domestic sources for goods needed by the Federal Government do not dry up because American companies have been slightly underbid by foreign competitors.

The Buy American Act also includes a waiver for goods bought by the Federal Government that will be used outside of the United States. There is no question that there are occasions when the Federal Government needs to procure items quickly for use outside the United States, such as in a time of war. However, there may be items that are bought on a regular basis and used at foreign military bases or United States embassies, for example, that could reasonably be procured from domestic sources and shipped to the location where they will be used. My bill would require Federal agencies to compare the difference in cost for obtaining articles that are used on regular basis outside the U.S., or that are not needed immediately, between an overseas versus a domestic source--including the cost of shipping--before awarding the contract to the company that will do the work overseas.

The Buy American Act's domestic source requirements may also be waived if the articles to be procured are not available from domestic sources ``in sufficient and reasonably available commercial quantities and of a satisfactory quality.'' My bill would require that an agency or department head, prior to issuing such a waiver, determine whether domestic production can be initiated to meet the procurement needs and whether a comparable article, material, or supply is available domestically.

My bill would also strengthen the Buy American Act in four other ways. It would, for the first time, make the Buy American requirement applicable to the United States Congress. The current definition of a Federal agency in the Act specifically exempts the Senate, the House, and Architect of the Capitol, and activities under the direction of the Architect. I believe that Congress should lead by example and comply with the Buy American Act--a requirement that we have imposed on executive agencies.

Secondly, my bill would increase the minimum American content standard qualification under the Act from the current 50 percent to 75 percent. The definition of what qualifies as an American-made product has been a source of much debate. To me, it seems clear that American- made means manufactured in this country. This classification is a source of pride for manufacturing workers around our country. The current 50 percent standard should be raised to a minimum of 75 percent.

In addition, my bill would make permanent the expanded reporting requirement that I authored which was first enacted as part of the fiscal year 2004 omnibus spending bill and was extended as part of the fiscal year 2005 omnibus spending bill. Prior to the enactment of these provisions, only the Department of Defense was required to report to Congress on its use of Buy American waivers and purchases of foreign goods. It is virtually impossible to get hard numbers on the Federal Government's purchases of foreign- and domestic-made goods and to ensure that there is disclosure and accountability in the waiver process.

The annual report to be submitted by agency heads will be required to include the following information: the dollar value of any items purchased that were manufactured outside of the United States; an itemized list of all applicable waivers granted with respect to such items under the Buy American Act; and a summary of the total procurement funds spent by the Federal agency on goods manufactured in the United States versus on goods manufactured overseas. In addition, my bill also requires that the heads of all Federal agencies make these annual reports publicly available on the Internet.

My bill also seeks to prevent dual-use technologies from falling into the hands of terrorists or countries of concern by prohibiting the awarding of overseas contracts or sub-contracts that would require the transfer of information relating to any item that is classified as a dual-use item on the Commerce Control List unless approval for such a contract has been obtained through the Export Administration Act process. It only makes sense that we would not award contracts that require the transfer of sensitive technology without following our own export licensing process. It is possible that this technology could later be used by some countries to make their own products to sell to countries that cannot obtain such goods from the United States. This loophole in our export control laws should be closed.

Finally, my bill would require the Government Accountability Office to report to Congress with recommendations for defining the terms ``inconsistent with the public interest'' and ``unreasonable cost'' for purposes of invoking the corresponding waivers in the Act. I am concerned that both of these terms lack definitions, and that they can be very broadly interpreted by agency or department heads. GAO would require to make recommendations for statutory definitions of both of these terms, as well as for establishing a consistent waiver process that can be used by all federal agencies.

I am pleased that my legislation is supported by a broad array of business and labor groups. The groups are committed to ensuring that we have a strong domestic manufacturing base that provides good-paying, stable jobs for American workers, and they include Save American Manufacturing, the national and Wisconsin AFL-CIO, the U.S. Business and Industry Council, the International Association of Machinists and Aerospace Workers, the International Brotherhood of Boilermakers, and the United Auto Workers.

In addition to strengthening the Buy American Act, Congress should support trade agreements that do not undermine it. As I have repeatedly stated on this floor, Congress and Administrations of both parties have a dismal record of promoting trade agreements that send American jobs overseas. And many of those same flawed trade agreements have repeatedly weakened the Buy American Act and other domestic preference laws.

Last year, the Ranking Member of the Homeland Security and Governmental Affairs Committee, Mr. Lieberman, and I asked the GAO to study the effect of trade agreements on domestic source requirements such as those contained in the Buy American Act. That study found that the United States government is required to give

favorable treatment to certain goods from a total of 45 countries as a result of trade agreements and reciprocal defense procurement agreements. The report notes that the United States is a party to seven trade agreements, including the North American Free Trade Agreement (NAFTA) and the World Trade Organization's Government Procurement Agreement, that prevents the U.S. from applying domestic preference laws fully. The report also identifies 21 Department of Defense (DoD) Memoranda of Understanding that allow DoD to procure goods and services from foreign countries.

The gaping loopholes in the Buy American Act and the trade agreements and defense procurement agreements that contain additional waivers of domestic source restrictions have combined to weaken our domestic manufacturing base by allowing--and sometimes actually encouraging--the Federal Government to buy foreign-made goods. Congress can and should do more to support American companies and American workers. We must strengthen the Buy American Act and we must stop entering into bad trade agreements that send our jobs overseas and undermine our own domestic preference laws.

By strengthening Federal procurement policy, we can help to bolster our domestic manufacturers during these difficult times. As I have repeatedly noted, Congress cannot simply stand on the sidelines while tens of thousands of American manufacturing jobs have been and continue to be shipped overseas. While there may be no single solution to this problem, I believe that one way in which Congress should act is by strengthening the Buy American Act.

I ask unanimous consent that the text of my bill be printed in the Record.