OPEN Government Act of 2005

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 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, 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.

Mr. President, I rise to introduce two bills that expand Federal authority to prevent controlled substances from flooding into the U.S., authorizing States to shut down illegitimate virtual pharmacies, and bar Internet drug stores from dispensing drugs to customers referred to on-line doctors for a prescription.

Americans are increasingly turning to the Internet for access to affordable drugs. In 2003, consumer spending on drugs procured over the Internet exceeded $3.2 billion. Unfortunately, rogue Internet sites have proliferated and rake in millions of dollars by selling unproven, counterfeit, defective or otherwise inappropriate medications to unsuspecting consumers. Even more dangerously, these sites are profiting by selling addictive and potentially deadly controlled substances to consumers without a prescription or any physician oversight. This must stop before more individuals die or become addicted to easily obtainable narcotic drugs.

The first bill I am introducing was developed in close consultation with Senator Feinstein, who is an original cosponsor. In appreciation for her role in helping write this legislation it is named after a young man from her state who died from an overdose of drugs purchased over the Internet. I am also pleased to announce that Congressmen Tom Davis and Henry Waxman are introducing this exact measure in the House today. The issue of rogue Internet sites and the availability of controlled substances on-line is indeed a bi-partisan and bi-cameral issue.

17-year-old Ryan Haight of La Mesa, CA was an honor roll student, and avid baseball card collector about to enter college. As his mom says, ``he was a good kid.'' But in May of 2000 Ryan started hanging out with a different crowd of friends. He joined an online chat forum, which advocates the safe use of drugs, and he began buying prescription drugs from the Internet.

He used the family computer late at night and a debit card his parents gave him to buy baseball cards on Ebay. You might wonder how did a healthy 17-year-old obtain prescriptions for painkillers without a medical exam. He got them from Dr. Robert Ogle an ``online'' physician based out of Texas. With the prescriptions from Dr. Ogle, Ryan was able to order hydrocodone, morphine, Valium and Oxazepam and have them shipped via US mail right to his front door.

In February 2001, Ryan overdosed on a combination of these prescription drugs. His mother found him dead on his bedroom floor.

The Ryan Haight Internet Pharmacy Consumer Protection Act counters the growing sale of prescription drugs over the Internet without a valid prescription by one, providing new disclosure standards for Internet pharmacies; two, barring Internet sites from selling or dispensing prescription drugs to consumers who are provided a prescription solely on the basis of an online questionnaire; and three, allowing State Attorneys General to go to Federal court to shut down rogue sites.

The bill is geared to counter domestic Internet pharmacies that sell drugs without a valid prescription, not international pharmacies that sell drugs at a low cost to individuals who have a valid prescription from their U.S. doctors.

Under current law, purchasing drugs online without a valid prescription can be simple: a consumer just types the name of the drug into a search engine, quickly identifies a site selling the medication, fills in a brief questionnaire, and then clicks to purchase. The risks of self-medicating, however, can include potential adverse reactions from inappropriately prescribed medications, dangerous drug interactions, use of counterfeit or tainted products, and addiction to habit-forming substances. Several of these illegitimate sites fail to provide information about contraindications, potential adverse effects, and efficacy.

Regulating these Internet pharmacies is difficult for Federal and

State authorities. State medical and pharmacy boards have expressed the concern that they do not have adequate enforcement tools to regulate practice over the Internet. It can be virtually impossible for states to identify, investigate, and prosecute these illegal pharmacies because the consumer, prescriber, and seller of a drug may be located in different States.

The Internet Pharmacy Consumer Protection Act amends the Federal Food, Drug, and Cosmetic Act to address this problem in three steps. First, it requires Internet pharmacy web sites to display information identifying the business, pharmacist, and physician associated with the website.

Second, the bill bars the selling or dispensing of a prescription drug via the Internet when the website has referred the customer to a doctor who then writes a prescription without ever seeing the patient.

Third, the bill provides States with new enforcement authority modeled on the Federal Telemarketing Sales Act that will allow a State attorney general to shut down a rogue site across the country, rather than only bar sales to consumers of his or her State.

I am proud to say that the Ryan Haight Internet Pharmacy Consumer Protection Act is supported by the Federation of State Medical Boards, the National Community Pharmacists Association, and the American Pharmacists Association.

The second bill I am introducing enables Customs and Border Protection to immediately seize and destroy any package containing a controlled substance that is illegally imported into the U.S. without having to fill out duplicative forms and other unnecessary administrative paperwork. The Act will allow Customs to focus on interdicting and destroying potentially addictive and deadly controlled substances. The Act is dedicated to Todd Rode, a young man who died after overdosing on imported drugs.

Todd Rode had the heart and soul of a musician. He graduated from college magna cum laude with a major in psychology and a minor in music. The faculty named him the outstanding senior in the Psychology Department. He worked in this field for a number of years, but he constantly fought bouts of depression and anxiety.

Unfortunately Todd ordered controlled drugs from a pharmacy and doctor in another country. These drugs included Venlafaxine, Propoxyphene, and Codeine. All were controlled substances and all were obtained from overseas pharmacies without any safeguards. To obtain these controlled substances all Todd had to do was to fill out an online questionnaire and with the click of a mouse they were shipped directly to his front door.

In October of 1999, Todd's family found him dead in his apartment.

A six-month investigation by the Permanent Subcommittee on Investigations has revealed that tens of thousands of dangerous and addictive controlled substances are streaming into the U.S. on a daily basis from overseas Internet pharmacies. For example, on March 15 and 17, 2004, at JFK airport, home to the largest International Mail Branch in the U.S., at least 3000 boxes from a single vendor in the Netherlands containing hydrocodone and Diazepam (Valium) were seized by Customs and Border Protection (Customs).

In fact, senior Customs inspectors at JFK estimate that 40,000 parcels containing drugs are imported on a daily basis. During last summer's FDN Customs blitz, 28 percent of the drugs tested were controlled substances. Extrapolating these figures, 11,200 drug parcels containing controlled substances are imported through JFK daily, 78,400 weekly, 313,600 monthly and 3,763,200 annually. Top countries of origin include Brazil, India, Pakistan, Netherlands, Spain, Portugal, Canada, Mexico, and Romania.

Likewise, as of March 2003, senior Customs officials at the Miami International Airport indicated that as much as 30,000 packages containing drugs were being imported on a daily basis. A large percentage of these are controlled substances as well. Customs is simply overwhelmed. At Mail facilities across the U.S., Customs regularly seizes shipments of oxycodone, hydroquinone, tranquilizers, steroids, codeine laced product, GHB, date rape drug, and morphine.

In order to comply with paperwork requirements, Customs is forced to devote investigators solely to opening, counting, and analyzing drug packages, filling out duplicative forms, and logging into a computer all of the seized controlled substances. It takes Customs at least one hour to process a single shipment of a controlled substance. This minimizes the availability of inspectors to screen incoming drug packages. In fact, last year at JFK, there were as many as 20,000 packages of seized controlled substances waiting processing. Customs acknowledges that, because of the sheer volume of product, bureaucratic regulations, and lack of manpower, the vast majority of controlled substances that are illegally imported are simply missed and allowed into the U.S. stream of commerce.

The Act to Prevent the Illegal Importation of Controlled Substances is a simple bill to address this burgeoning and potentially lethal problem.

I am confident that, if enacted as stand-alone measures, each of these bills will make on-line drug purchasing safer. However, I have worked with Senator Gregg to ensure these safety features are included in his comprehensive reimportation bill and urge my colleagues to help make sure that this important piece of legislation becomes law this year.

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

Mr. President, today I am pleased to introduce the Federal Youth Coordination Act with my good friends, Senator Mike DeWine and Senator Lamar Alexander.

The idea for this legislation emanated from the 2003 White House Task Force for Disadvantaged Youth report that indicated Federal youth programs were spread across 12 different departments and agencies. It identified 150 programs that served children and youth up to age 21, but also discovered several of these programs were no longer in existence.

Today, there is a real need for strong role models in our communities to help at-risk youth. As a parent, I know there are a number of things that influence and shape our children's lives and unfortunately sometimes there are more negative things than positive. Youth programs help combat the negative influences and help restore hope, provide guidance, and help kids stay on the right track. While we have the resources to help our kids, a lack of coordination among youth programs has limited the full potential we have to change lives. Our bill will unleash that potential and bring our youth groups to full strength.

The Federal Youth Coordination Act will bring efficiency and accountability to federal youth policy by developing a Federal Youth Development Council. Composed of Department Secretaries, youth serving organizations and youth themselves, the Council will coordinate existing federal programs, research and other initiatives, enabling a more comprehensive approach to serving the nation's young people.

The purpose of the Council is not to eliminate existing programs, nor to create new ones. The Council will ensure communication among youth serving agencies, assess the needs of youth, set quantifiable goals and objectives for federal youth programs and develop a coordinated plan to achieve those goals. This approach is also cost-effective. The Council will only cost about $1.5 million, and the cost-savings that will be achieved through improved efficiency and reduced duplication of efforts will easily recoup those costs.

This legislation has bipartisan support and the strong support of our nation's youth serving organizations including the Boy Scouts of America, the Girl Scouts of America, the Boys & Girls Clubs of America, the YMCA and the Child Welfare League of America. I hope the Senate will be able to act on this important legislation early this year to ensure our kids have the support they need.

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