OPEN FOIA Act of 2008

Mr. President, today, as we approach the national celebration of Sunshine Week 2008, I am pleased to join with Senator Cornyn to introduce the OPEN FOIA Act of 2008, a concise and straightforward bill to further strengthen the Freedom of Information Act, FOIA. This bill is the next step in the important work that Senator Cornyn and I have undertaken to reinvigorate and strengthen FOIA, and it follows the enactment late last year of the Leahy-Cornyn OPEN Government Act, a law which made the first major reforms to FOIA in more than a decade.

The OPEN FOIA Act simply requires that when Congress provides for a statutory exemption to FOIA in new legislation, Congress must state its intention to do so explicitly and clearly in that bill. This commonsense bill mirrors bipartisan legislation that unanimously passed the Senate during the last Congress, S.1181. I hope that the Senate will once again promptly and unanimously pass this good-government bill.

While no one can fairly question the need to keep certain government information secret to ensure the public good, excessive government secrecy is a constant temptation and the enemy of a vibrant democracy. For more than 4 decades, FOIA has served as perhaps the most important Federal law to ensure the public's right to know and to balance the government's power with the need for government accountability.

FOIA contains a number of exemptions to its disclosure requirements for national security, law enforcement, confidential business information, personal privacy and other circumstances. The FOIA exemption commonly known as the ``(b)(3) exemption,'' requires that Government records that are specifically exempted from FOIA by statute may be withheld from the public. Of course, neither I nor Senator Cornyn would quibble with the notion that some Government information is appropriately kept from public view. But in recent years we have witnessed an alarming number of FOIA (b)(3) exemptions being offered in legislation--often in very ambiguous terms--to the detriment of the American people's right to know.

The bedrock principles of open government lead me to believe that (b)(3) statutory exemptions should be clear and unambiguous, and vigorously debated before they are enacted into law. Of course, sometimes this does happen. But more and more often, legislative exemptions to FOIA are buried within a few lines of very complex and lengthy bills, which are never debated openly and publicly before becoming law. The consequence of this troubling practice is the erosion of the public's right to know and the shirking of Congress' duty to fully consider these exemptions.

Senator Cornyn and I both believe that Congress must be diligent in reviewing any new exemptions to FOIA, to prevent possible abuses and a situation where the exceptions to disclosure under FOIA swallow this important disclosure rule. The OPEN FOIA Act will ensure openness and clarity about how we treat one of our most important open Government laws. Our bill will also shine more light into the process of creating legislative exemptions to FOIA--which is the best antidote to exemption creep.

Democratic and Republican Senators alike have rightly supported and voted for this bill in the past. As I have said many times before, open Government is not a Democratic issue, nor a Republican issue. It is an American value and a virtue that all Americans can embrace. I urge all Members to support this bipartisan good-government bill to strengthen the public's right to know.

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

Mr. President, today, I am introducing legislation to strengthen and make permanent the Regional Center pilot program at the U.S. Citizenship and Immigration Services, USCIS. l am pleased that Senator Specter has joined me in this effort, and I commend him for his recognition of this program's importance. The Regional Center program has had tremendous success in creating American jobs and infusing investment capital into many economically challenged areas across the country, and I urge all Senators to join us in building upon this success.

The Regional Center pilot program was created in 1993 by the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act. In 1993, I worked to reauthorize the program for an additional five years as part of the Basic Pilot Program Extension and Expansion Act. The Regional Center pilot program is set to expire in September of 2008. Should Congress fail to act before then, millions of dollars in capital and thousands of potential American jobs will be forfeited. The legislation I introduce today would make this pilot program permanent, and would make other important changes to strengthen its solid foundation.

The Regional Center program allows a regional governmental agency or private enterprise within a State to apply for designation as a Regional Center through USCIS. This designation allows the enterprise to recruit foreign investors to a discrete project or projects, and provides USCIS with an additional layer of screening against immigration fraud. The process for a foreign citizen to gain legal permanent residence through the Regional Center program is a rigorous one. Prior to applying to invest in a Regional Center, a foreign investor must pledge a minimum of $500,000 and independently apply for an EB-5 visa through USCIS, which solely determines the potential investor's eligibility for a visa. If approved, the investor is given a 2-year conditional green card. At the end of the conditional period and in order to continue legal residence in the United States, the investor must demonstrate that his or her investment created a minimum of 10 jobs within the Regional Center, and that his or her investment was fully obligated to the targeted project.

This program's continuation promises a bright future for job creation and capital investment in participating communities. The Regional Center program has resulted in millions of dollars of direct investment and the creation of thousands of jobs in the U.S. Moreover, foreign investment serves to attract additional domestic private sector capital, further increasing the program's beneficial economic effects. There are 17 Regional Centers across the country--and several more with pending applications--which manage investments in a diverse range of projects from energy production to resort development. Making this successful program permanent will provide significant economic benefits to participating States at no cost to the taxpayer.

My home State of Vermont has benefited tremendously from this program, with foreign investments committed to local projects ranging in the millions of dollars. As a result of these ongoing developments, many new jobs are being created for Vermont's residents. For example, two of Vermont's premier ski resorts are active participants in this program, and have been successful in attracting foreign investment to help make ambitious development projects a reality. In a rural State like Vermont, which depends heavily on tourism and its natural resources, the Regional Center program has been instrumental in supporting projects that take advantage of Vermont's natural beauty and outdoor recreation opportunities.

In addition to making the Regional Center program permanent, the bill also makes a number of other improvements to ensure its efficiency and to accommodate expected expansion. The bill provides a premium processing option for potential investors, allowing expedited processing for an additional fee to USCIS, as well as concurrent processing of a potential investor's application for designation as an immigrant investor and his or her adjustment of status application to obtain

conditional permanent residency. Finally, the bill creates a $2,500 fee for those domestic entities applying for Regional Center status, and directs USCIS to re-invest this additional revenue back into the Regional Center program to allow the agency to accommodate future growth in the program.

Because the pilot program is set to expire in 2008, potential investors are feeling a chill stemming from uncertainty about the Regional Center Program's future. Permanently authorizing this program will create certainty and predictability for potential investors interested in the numerous projects currently in development across the country. This non-controversial program has enjoyed broad bipartisan support, and I strongly believe that we would do well to increase American job creation and capital investment by matching American ingenuity with the desire of those who seek not only to invest in the U.S., but who seek to share in our country's promise as eventual citizens.

In a time of severe economic turbulence, and in an era where Americans are witnessing the outsourcing of too many good jobs overseas, this bill builds upon a proven record of success and encourages investment and job creation in the States and local communities of our Nation.

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

Mr. President, I rise today to introduce legislation that will help address a troublesome byproduct of our Nation's mining history: abandoned mines.

The 1872 Mining Law created national standards to regulate gold and silver mining operations on Federal lands. Since then, hundreds of thousands of gold and silver mines have been abandoned.

There are roughly 500,000 abandoned mines across the U.S., and nearly 47,000 abandoned mines in my home State of California.

According to the California Department of Conservation, all but two of California's 58 counties have abandoned mines; and close to 70 percent of California's abandoned mines are located in the ``Mother Lode'' area in the Northern Sierra or San Bernardino, Inyo and Kern Counties in the southeastern part of the State.

Because the 1872 Mining Law is so outdated, we have been unable to adequately clean up and remediate these abandoned mines.

The need for action is great.

The bill that I am introducing today, is not intended to be a comprehensive hardrock mining reform bill, but it is an important piece of the reform that is needed in hardrock mining.

The Abandoned Mine Reclamation Act of 2008, will reform the 1872 Mining Law by: establishing fees to support abandoned mine cleanup; establishing a royalty payment system; and creating an Abandoned Mine Cleanup Fund.

Unlike the coal industry, the metal mining industry does not pay to clean up its legacy of abandoned mines, making lack of funding the primary obstacle to abandoned hardrock mine cleanup.

This legislation would help fund the cleanup of abandoned mines by placing an Abandoned Mine Reclamation fee on all hardrock minerals, using the underground coal industry fee program as a model.

Here is why--the condition of abandoned coal mines has greatly improved since the Surface Mining Control and Reclamation Act of 1977 established a fee to finance restoration of land abandoned or inadequately restored by coal mining companies.

This fund has been able to raise billions of dollars for coal mine reclamation--and I believe that a similar program could be part of the solution to the hardrock abandoned mine cleanup.

This legislation also establishes a royalty on Hardrock Mining Claims.

Companies that mine for gold and silver on Federal lands are not currently required to pay any royalties to the Federal Government--even though we are experiencing near record high gold prices, around $900 an ounce.

These companies should be required to pay their fair share.

The Abandoned Mine Reclamation Act establishes an 8 percent royalty on new mining operations located on Federal lands, and a 4 percent royalty for existing operations.

These royalties are at the same level as the Hardrock Mining and Reclamation Act, H.R. 2262, which was passed by the House late last year.

The legislation I am introducing today also creates an Abandoned Mine Fund.

In these times of budget deficits, it's clear that we will not be able to simply appropriate the funds necessary to clean up the hundreds of thousands of abandoned hard rock mines.

So, this legislation will create an abandoned mine cleanup fund to ensure that we have a lasting source of funding for this critical cleanup effort.

Specifically, the fund will direct the royalties, as well as other payments collected from mining operations, and dedicate them to the cleanup of abandoned hardrock mines.

Now I would like to take a moment to talk more about why abandoned mines are so problematic.

First, members of the public are in danger of getting seriously hurt or killed by falling down old mine shafts.

In the past 2 years, eight accidents at abandoned mine sites were reported in California. These accidents resulted in four fatalities and seven others were injured and/or required rescuing.

But the even greater threat from abandoned mines comes from the danger of groundwater pollution.

Environmental impact studies have shown that important watersheds are being polluted by high levels of mercury or increased sedimentation.

This in turn exposes people who drink this water to harmful minerals like mercury, chromium and asbestos and the fish who swim in streams fed by these waters are likewise contaminated.

The Bureau of Land Management reports that abandoned mines have contaminated 17 major watersheds in California, which supply water for millions of people and provide habitat for important species like salmon and other fish that are caught and consumed by the public.

So, the threat to public health is critical.

Mining has played in California's history. The discovery of gold at Sutter Mill near Placerville, California in 1848 was a defining moment for California and the U.S.

It is fair to say that without mining and the Gold Rush, California and the entire country would be a far different place than it is today.

The great history of mining in California, however, is tarnished by the legacy of tens of thousands of abandoned mines. In particular, abandoned mine sites on Federal lands.

Let me illustrate a few examples of abandoned mine sites located on Federal land in California.

These sites are causing serious public safety and environmental problems: Rand Historic Mining Complex located on BLM land in eastern Kern County and northwestern San Bernardino County.

This area includes the Kelly Silver Mine and the Yellow Aster Gold Mine near the communities of Johannesburg, Randsburg, and Red Mountain.

The problem is this: The sites contain extensive arsenic-bearing mine waste and numerous open mine shafts that could cause safety hazards.

The Pond Gold Mine Site located in Placer County on BLM land.

This mine site consists of an extensive network of sluice tunnels and a large waste rock pile.

Here's the problem: The Pond Mine has been determined to be a source of mercury to Pond Creek and the Middle Fork of the American River.

The Golinsky Mine located on Forest Service land located in Shasta County.

The Golinsky mine is an abandoned copper mine that is releasing acid mine drainage into Shasta Lake.

The responsible party has been identified, but has declared bankruptcy. This has forced the Forest Service to spend more than $2.2 million dollars investigating and mitigating the environmental problems while they try to recoup the costs.

There are numerous abandoned mine sites that may not yet have been discovered all across California.

One place where we expect the problem to grow is in Joshua Tree National Park.

Joshua Tree has numerous former mine sites that contain a series of shafts near trails and roads. These mine shafts vary in size and the depth ranges from 20 to 200 feet deep--and are extremely dangerous, potentially causing people to fall into them.

So, these abandoned mines are a serious problem throughout the State. We need to take action soon to clean them up.

The problems caused by abandoned mines are not going away--and with each passing day, the health danger will continue to rise.

It is important to our children and grandchildren that we start the process of cleaning up the abandoned mines that were left to us. But we cannot do it without a substantial and reliable source of funding.

Here is the key: this legislation doesn't reinvent the wheel. It implements solutions that have been working for a similar problem. It uses many of the ideas that have helped the coal industry to raise over seven billion dollars for abandoned mines.

It is time to expect the same from the hardrock mining industry.

Though this legislation is a significant step forward for the funding of abandoned mines, I know that there is much more mining reform to be done.

I look forward to working with my colleagues to ensure that the 1872 Mining Law is reformed--so that 21st Century mining regulations will be applied to 21st Century mining operations.

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

Mr. President, I seek recognition to speak on the State Foreign Investment Improvement Act, which I am cosponsoring with Senator Leahy. This bill will make permanent the Immigrant Investor Pilot Program, an innovative and successful program which has been in existence for 15 years. Under this program, State and local governments, and private entities, are able to apply to the U.S. Citizenship and Immigration Service for ``regional center'' status which enables them to attract the job-creating dollars of immigrant investor visa holders.

The immigrant investor visa--known as the EB-5 visa--was created in 1990 and grants lawful permanent residency to individuals willing to invest at least $1 million in an enterprise that directly employs at least 10 legal workers in the United States. In certain rural or high- unemployment areas, however, the dollar amount is reduced to at least $500,000, though the job-creation requirements remain the same.

In 1992, to stimulate interest in these immigrant investor visas, Congress created the Immigrant Investor Pilot Program. By investing in the designated ``regional centers'' instead of creating their own enterprises or partnerships, immigrant investors can meet the job- creation requirements of their visas more easily, since they need only show the indirect creation of 10 jobs through a ``regional center.'' Otherwise, an immigrant investor would have to show that his or her investment directly created the jobs.

The Immigrant Investor Pilot Program has proven to be an attractive option for potential immigrant investors, being chosen by an estimated 75 percent to 80 percent of all immigrant investors since its inception. Indeed, in my home state of Pennsylvania, the two regional centers--one in western Pennsylvania and one in Philadelphia--have generated millions of dollars in foreign investment. However, this program is set to expire at the end of the 2008 fiscal year.

The Immigrant Investor Pilot Program has thus become a vital component of the immigrant investor visa, a category of visa whose benefits are difficult to overstate. The Government Accountability Office estimates that immigrant investors were responsible for over $1 billion in job-creating investments between 1992 and mid-2004. These investments have aided enterprises as diverse as the growth of dairy and meat-packing industries in South Dakota and improvements to the shipyard in Philadelphia. However, the most important contribution of the immigrant investor visa has been the creation of jobs within the United States. And in this aim, the immigrant investor visa has been very successful, creating jobs in the thousands.

In addition to preserving the current successful status quo of the Immigrant Investor Pilot Program by making it permanent, this bill makes minor improvements to the immigrant investor visa application procedure. It establishes an application fee for entities seeking designation as a ``regional center'' under the Pilot Program, and it provides premium processing fees for immigrant investor applications. Both of these fees will enable the U.S. Citizenship and Immigration Service to devote more resources to adjudicating these applications rapidly. Finally, this bill allows for concurrent filing of the immigrant investor petition and application for adjustment to lawful permanent resident, thereby providing for a shorter processing time for ``regional center'' applicants.

Last November, the Wall Street Journal stated that the immigrant investor visa is ``pumping millions of dollars from foreign investors into dilapidated inner cities and employment-starved rural areas across the U.S.'' At a time when Congress is weighing how it will address economic instability, it would be unwise to neglect such an economically beneficial program. Accordingly, I am pleased to co- sponsor this piece of legislation with Senator Leahy and I urge my colleagues to support it.

Mr. President, today, as we approach the national celebration of Sunshine Week 2008, I am pleased to join with Senator Cornyn to introduce the OPEN FOIA Act of 2008, a concise and straightforward bill to further strengthen the Freedom of Information Act, FOIA. This bill is the next step in the important work that Senator Cornyn and I have undertaken to reinvigorate and strengthen FOIA, and it follows the enactment late last year of the Leahy-Cornyn OPEN Government Act, a law which made the first major reforms to FOIA in more than a decade.

The OPEN FOIA Act simply requires that when Congress provides for a statutory exemption to FOIA in new legislation, Congress must state its intention to do so explicitly and clearly in that bill. This commonsense bill mirrors bipartisan legislation that unanimously passed the Senate during the last Congress, S.1181. I hope that the Senate will once again promptly and unanimously pass this good-government bill.

While no one can fairly question the need to keep certain government information secret to ensure the public good, excessive government secrecy is a constant temptation and the enemy of a vibrant democracy. For more than 4 decades, FOIA has served as perhaps the most important Federal law to ensure the public's right to know and to balance the government's power with the need for government accountability.

FOIA contains a number of exemptions to its disclosure requirements for national security, law enforcement, confidential business information, personal privacy and other circumstances. The FOIA exemption commonly known as the ``(b)(3) exemption,'' requires that Government records that are specifically exempted from FOIA by statute may be withheld from the public. Of course, neither I nor Senator Cornyn would quibble with the notion that some Government information is appropriately kept from public view. But in recent years we have witnessed an alarming number of FOIA (b)(3) exemptions being offered in legislation--often in very ambiguous terms--to the detriment of the American people's right to know.

The bedrock principles of open government lead me to believe that (b)(3) statutory exemptions should be clear and unambiguous, and vigorously debated before they are enacted into law. Of course, sometimes this does happen. But more and more often, legislative exemptions to FOIA are buried within a few lines of very complex and lengthy bills, which are never debated openly and publicly before becoming law. The consequence of this troubling practice is the erosion of the public's right to know and the shirking of Congress' duty to fully consider these exemptions.

Senator Cornyn and I both believe that Congress must be diligent in reviewing any new exemptions to FOIA, to prevent possible abuses and a situation where the exceptions to disclosure under FOIA swallow this important disclosure rule. The OPEN FOIA Act will ensure openness and clarity about how we treat one of our most important open Government laws. Our bill will also shine more light into the process of creating legislative exemptions to FOIA--which is the best antidote to exemption creep.

Democratic and Republican Senators alike have rightly supported and voted for this bill in the past. As I have said many times before, open Government is not a Democratic issue, nor a Republican issue. It is an American value and a virtue that all Americans can embrace. I urge all Members to support this bipartisan good-government bill to strengthen the public's right to know.

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

Mr. President, on July 4, our Nation will celebrate the 42nd anniversary of the signing of the Freedom of Information Act, FOIA. While we mark this important anniversary, the country also celebrates the enactment earlier this year of the first major reforms to FOIA in over a decade--the OPEN Government Act--which will reinvigorate and strengthen this vital open government law for many years to come.

Now in its fourth decade, the Freedom of Information Act remains an indispensable tool for shedding light on bad policies and Government abuses.

The act has helped to guarantee the public's ``right to know'' for generations of Americans. Today, thanks to the reforms contained in the OPEN Government Act, which was signed into law on December 31, Americans who seek information under FIOA will experience a process that is much more transparent and less burdened by delays than it has been in the past. This is very good news. But there is still much more to be done to ensure that FOIA remains an effective tool for keeping our democracy open and free.

A key component of the OPEN Government Act is the creation of an Office of Government Information Services, OGIS, within the National Archives and Records Administration. The office would mediate FOIA disputes, review agency compliance with FOIA, and house a newly created FOIA ombudsman. Establishing a fully funded OGIS is essential to reversing the troubling trend of the last 7 years towards lax FOIA compliance and excessive Government secrecy.

I am pleased that the Committee on Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies--a panel on which I serve--last week rejected the President's budget proposal to move the functions of OGIS to the Department of Justice. I will continue to work very hard to ensure that OGIS is fully funded within the National Archives--as Congress intended--so that this important office has the necessary resources to fully comply with the OPEN Government Act.

There is also more work to be done to further strengthen FOIA. Earlier this year, I was pleased to join with Senator John Cornyn in introducing the OPEN FOIA Act, S. 2746, a bill that requires Congress to clearly and explicitly state its intention to create a statutory exemption to FOIA when it provides for such an exemption in new legislation. While there is a very real need to keep certain Government information secret to ensure the public good and safety, excessive Government secrecy is a constant temptation and the enemy of a vibrant democracy.

The OPEN FOIA Act provides a safeguard against the growing trend towards FOIA exemptions, and would make all FOIA exemptions clear and unambiguous, and vigorously debated, before they are enacted into law. The Senate Judiciary Committee will consider this bill at its business meeting this week, and I urge all members to support this legislation to further restore the public's trust in their Government.

As we reflect upon the celebration of another FOIA anniversary, we in Congress must also reaffirm our commitment to open and transparent government. As I have said many times, open government is not a Democratic issue or a Republican issue. It is an American value and a virtue that all Americans hold dear. It is in this bipartisan spirit that I join Americans from across the political spectrum in celebrating the 42nd anniversary of the birth of FOIA and all that this law has come to symbolize about our vibrant democracy.