[Congressional Record Volume 151, Number 17 (Wednesday, February 16, 2005)]
[Senate]
[Pages S1515-S1559]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. LAUTENBERG (for himself, Mr. Kerry, Mrs. Boxer, and Mrs.
Clinton):
S. 391. A bill to amend the Federal Election Campaign Act of 1971 to
prohibit certain State election administration officials from actively
participating in electoral campaigns; to the Committee on Rules and
Administration.
Mr. LAUTENBERG. Mr. President, I rise to introduce the Federal
Election Integrity Act on behalf of myself and Senators Kerry, Boxer
and Clinton. This bill creates a direct prohibition on chief State
election officials from taking part in political campaigns by amending
the Federal Campaign Act of 1971.
Legislation is very much needed to eliminate an inherent conflict of
interest that exists when a State's chief election administration
official--the Secretary of State, the State Attorney General, or the
Lieutenant Governor--is responsible for monitoring, supervising and
certifying the results of a Federal election, while actively involved
in the campaign of one of the candidates in that election.
I know that this is a practice engaged in by both Democratic and
Republican State officials on behalf of Federal candidates, but those
officials in charge of certifying Federal elections must not allowed to
serve two masters--the voters and the Federal candidate. It is not
right and it undermines the faith and confidence that Americans in this
Nation's election system, and impugns the integrity of the State
election official and the Federal candidate. The will of voters must
come before the personal partisan politics.
In 2000 and again in 2004, we have witnessed two Secretaries of State
capturing national press attention because of their involvement in
elections where, literally, every single vote mattered.
In the 2004 presidential election, Ohio Secretary of State Ken
Blackwell was co-chairman of President Bush's re-election campaign in
Ohio. On December 6th, 2004, Secretary of State Blackwell certified
President Bush as the winner in Ohio with an 118,775-vote lead--closer
than unofficial election night results, but not close enough to trigger
a mandatory recount. Recount advocates have cited numerous Election Day
problems in Ohio, including long lines, a shortage of voting machines
in predominantly minority neighborhoods, and suspicious vote totals for
candidates in scattered precincts.
In the 2000 election, Florida Secretary of State Katherine Harris
served as co-chair of President Bush's Florida campaign. President
Bush's narrow victory in Florida gave him the State's 25 electoral
votes necessary to win the presidency. A recount of thousands of
Florida ballots and resulting court battles held up a resolution to the
election for five weeks. There were reports of improprieties by
Secretary of State Harris, including ballot tampering and the tampering
of office computer files with Bush talking points and other supportive
material.
Just recently, California Secretary of State Kevin Shelley--a
Democrat--resigned due to allegations that he improperly used Federal
election funds for partisan activities.
In all these cases, I am sure that the Secretaries of State were
honorable public servants who made some very unpopular, difficult
decisions under intense public scrutiny. But as far as the voters are
considered, the Secretaries engaged in partisan political activity that
tainted the results of the elections. This legislation fixes that.
Secretaries of State and other State election officials with
supervisory authority over the administration of Federal elections
should not be actively involved in the political campaign or management
of a candidate running for Federal office in their State. The Secretary
of State is the primary election administration official in 39 States;
despite that, history has shown numerous Secretaries of State chairing
the political campaigns of Federal candidates in their State.
There is a direct conflict of interest when an election official
charged with supervising the administration of Federal elections and
ensuring the fairness and accuracy of the results of Federal elections
has a direct role in a Federal candidate's campaign.
Again, this is not an issue of Democrats versus Republicans. Rather,
this is an issue of preserving the American people's faith and
confidence in the election process. Simply put, election officials
responsible for ensuring fair and accurate Federal elections should not
be actively cheering for and aiding a candidate in those elections.
I ask unanimous consent that the text of the ``Federal Election
Integrity Act'' be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 391
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
[[Page S1516]]
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Federal Election Integrity
Act of 2005''.
SEC. 2. FINDINGS.
Congress finds that--
(1) chief State election administration officials have
served on political campaigns for Federal candidates whose
elections those officials will supervise;
(2) such partisan activity by the chief State election
administration official, an individual charged with
certifying the validity of an election, represents a
fundamental conflict of interest that may prevent the
official from ensuring a fair and accurate election;
(3) this conflict impedes the legal duty of chief State
election administration officials to supervise Federal
elections, undermines the integrity of Federal elections, and
diminishes the people's confidence in our electoral system by
casting doubt on the results of Federal elections;
(4) the Supreme Court has long recognized that Congress's
power to regulate Congressional elections under Article I,
Section 4, Clause 1 of the Constitution is both plenary and
powerful; and
(5) the Supreme Court and numerous appellate courts have
recognized that the broad power given to Congress over
Congressional elections extends to Presidential elections.
SEC. 3. PROHIBITION ON CAMPAIGN ACTIVITIES BY ELECTION
ADMINISTRATION OFFICIALS.
(a) In General.--Title III of the Federal Election Campaign
Act of 1971 (2 U.S.C. 431 et seq.) is amended by inserting
after section 319 the following new section:
``CAMPAIGN ACTIVITIES BY ELECTION OFFICIALS
``Sec. 319A. (a) Prohibition.--It shall be unlawful for a
chief State election administration official to take an
active part in political management or in a political
campaign with respect to any election for Federal office over
which such official has supervisory authority.
``(b) Chief State Election Administration Official.--The
term `chief State election administration official' means the
highest State official with responsibility for the
administration of Federal elections under State law.
``(c) Active Part in Political Management or in a Political
Campaign.--The term `active part in political management or
in a political campaign' means--
``(1) serving as a member of an authorized committee of
candidate for Federal office;
``(2) the use of official authority or influence for the
purpose of interfering with or affecting the result of an
election for Federal office;
``(3) the solicitation, acceptance, or receipt of political
contributions from any person on behalf of a candidate for
Federal office;
``(4) the solicitation or discouragement of the
participation in any political activity of any person;
``(5) engaging in partisan political activity on behalf of
a candidate for Federal office; and
``(6) any other act prohibited under section 7323(b)(4) of
title 5, United States Code (other than any prohibition on
running for public office).''.
(b) Enforcement.--Section 309 of the Federal Election
Campaign Act of 1971 (42 U.S.C. 437g) is amended by adding at
the end the following new subsection:
``(d)(1) Notwithstanding paragraphs (1) through (5) of
subsection (a), any person who has knowledge of a violation
of section 319A has occurred may file a complaint with the
Commission. Such complaint shall be in writing, signed and
sworn to by the person filing such complaint, shall be
notarized, and shall be made under penalty of perjury subject
to the provisions of section 1001 of title 18, United States
Code. The Commission shall promptly notify any person alleged
in the complaint and the candidate with respect to whom a
violation is alleged, and shall give such person and such
candidate an opportunity to respond. Not later than 14 days
after the date on which such a complaint is filed, the
Commission shall make a determination on such complaint.
``(2)(A) If the Commission determines by an affirmative
vote of a majority of the members voting that a person has
committed a violation of section 319A, the Commission shall
require the person to pay a civil money penalty in an amount
determined under a schedule of penalties which is established
and published by the Commission.
``(B) If the Commission determines by an affirmative vote
of a majority of the members voting that a person has
committed a violation of section 319A under subparagraph (A)
and that the candidate knew of the violation at the time such
violation occurred, the Commission may require such candidate
to pay a civil money penalty in an amount determined under a
schedule of penalties which is established and published by
the Commission.''.
______
By Mr. LEVIN (for himself Mr. McCain, Ms. Stabenow, Mrs. Dole,
Mr. Obama, Mr. Graham, Mr. Pryor, Mr. Kennedy, Mr. Rockefeller,
Mr. Nelson of Florida, Ms. Landrieu, and Mr. Kerry):
S. 392. A bill to authorize the President to award a gold medal on
behalf of Congress, collectively, to the Tuskegee Airmen in recognition
of their unique military record, which inspired revolutionary reform in
the Armed Forces; to the Committee on Banking, Housing, and Urban
Affairs.
Mr. LEVIN. Mr. President, during the last Session of the 108th
Congress, I informed my colleagues of my intention to introduce
bipartisan legislation in the 109th Congress, to authorize the awarding
of the Congressional Gold Medal, collectively, to the ``Tuskegee
Airmen.''
Congress has commissioned the gold medal as its highest expression of
national appreciation for distinguished achievements and contributions.
Today, I am pleased to be joined by Senators McCain, Stabenow, Dole,
Obama, Graham, Rockefeller, Pryor, Ben Nelson, Landrieu and Kerry in
introducing legislation, S. 392, that would bestow this great honor on
the Tuskegee Airmen, in recognition of their extraordinary courage and
unwavering determination to become America's first black military
airmen.
The Tuskegee Airmen were not only unique in their military record,
but they inspired revolutionary reform in the armed forces, paving the
way for integration of the Armed Services in the U.S. The largely
college educated Tuskegee Airmen overcame the enormous challenges of
prejudice and discrimination, succeeding, despite obstacles that
threatened failure. What made these men exceptional was their
willingness to leave their families and put their lives on the line to
defend rights that were denied them here at home. Congresswoman Helen
Gahagan Douglas of California, in remarks on the floor of the U.S.
House of Representatives on February 1, 1946 summed it up this way:
The Negro soldier made his contribution in World War II . .
. he has met the test of patriotism and heroism. We should be
especially mindful . . . remembering that he fought and shed
his blood for a freedom which he has not as yet been
permitted fully to share. I wish to pay him the respect and
to express the gratitude of the American people for his
contribution in the greatest battle of all time the battle
which decided whether or not we were to remain a free people.
The names of Negro heroes in this war are everlastingly
recorded among the living and the dead . . . in every combat
area, on land, on sea, in the air.
Former Senator Bill Cohen, in remarks on the floor of the Senate
decades later, in July of 1995, said: ``. . . I listened to the stories
of the Tuskegee airmen and . . . the turmoil they experienced fighting
in World War II, feeling they had to fight two enemies: one called
Hitler, the other called racism in this country.''
The superior record of the Tuskegee Airmen in World War II was
accomplished by individuals who accepted the challenge and proudly
displayed their skill and determination in the face of racism and
bigotry at home, despite their distinguished war records. Prior to the
1940s, many in the military held the sadly, mistaken view that black
servicemen were unfit for most leadership roles and mentally incapable
of combat aviation. Between 1924 and 1939, the Army War College
commissioned a number of studies aimed at increasing the military role
of blacks. According to The Air Force Magazine , Journal of the Air
Force Association, March 1996, ``. . . these studies asserted that
blacks possessed brains significantly smaller than those of white
troops and were predisposed to lack physical courage. The reports
maintained that the Army should increase opportunities for blacks to
help meet manpower requirements but claimed that they should always be
commanded by whites and should always serve in segregated units.''
Overruling his top generals and to his credit, President Franklin
Roosevelt in 1941 ordered the creation of an all black flight training
program at Tuskegee Institute. He did so one day after Howard
University student Yancy Williams filed suit in Federal Court to force
the Department of Defense to accept black pilot trainees. Yancy
Williams had a civilian pilot's license, and received an engineering
degree. Years later, ``Major Yancy Williams,'' participated in an air
surveillance project created by President Eisenhower.
``We proved that the antidote to racism is excellence in
performance,'' said retired Lt. Col. Herbert Carter, who started his
military career as a pilot and maintenance officer with the 99th
Fighter Squadron. ``Can you imagine . . . with the war clouds as heavy
as they were over Europe, a citizen of the
[[Page S1517]]
United States having to sue his government to be accepted to training
so he could fly and fight and die for his country?'' The government
expected the experiment to fail and end the issue, said Carter. The
mistake they made was that they forgot to tell us . . .''
The first class of cadets began in July of 1941 with thirteen men,
all of whom had college degrees, some with PhD's and all had pilot's
licenses. Based on the aforementioned studies, the training of the
Tuskegee Airmen was an experiment established to prove that
``coloreds'' were incapable of operating expensive and complex combat
aircraft.
By 1943, the first of contingent of black airmen were sent to North
Africa, Sicily and Europe. Their performance far exceeded anyone's
expectation. They shot down six German aircraft on their first mission,
and were also the first squad to sink a battleship with only machine
guns. Overall, nearly 1000 black pilots graduated from Tuskegee, 450 of
whom served in combat with the last class finishing in June of 1946,.
Sixty-six of the aviators died in combat, while another 33 were shot
down and captured as prisoners of war. The Tuskegee Airmen were
credited with 261 aircraft destroyed, 148 aircraft damaged, 15,553
combat sorties and 1,578 missions over Italy and North Africa. They
destroyed or damaged over 950 units of ground transportation and
escorted more than 200 bombing missions. Clearly, the experiment, as it
was called, was an unqualified success. Black men could not only fly,
they excelled at it, and were equal partners in America's victory.
A number of Tuskegee Airmen have lived in Michigan, including
Alexander Jefferson, Washington Ross, Wardell Polk, and Walter Downs,
among others. Tuskegee Airmen also trained at Michigan's Selfridge and
Oscoda air fields in the early 40's. In the early 1970's, the Airmen
established their first chapter in Detroit. Today there are 42 chapters
located in major cities of the U.S. The chapters support young people
through scholarships, sponsorships to the military academies, and
flight training programs. Detroit is also the location of The Tuskegee
Airmen National Museum, which is on the grounds of historic Fort Wayne.
The late Coleman Young, former Mayor of the City of Detroit was trained
as a navigator bombardier for the 477th bombardment group of the
Tuskegee Airmen. This group was still in training when WWII ended so
they never saw combat. However, the important fact is that all of those
receiving flight related training--nearly 1,000--were instrumental in
breaking the segregation barrier. They all had a willingness to see
combat, and committed themselves to the segregated training with a
purpose to defend their country.
The Tuskegee Airmen were awarded three Presidential Unit
Citations,150 Distinguished Flying Crosses and Legions of Merit, along
with The Red Star of Yugoslavia, 9 Purple Hearts, 14 Bronze Stars and
more than 700 Air medals and clusters. It goes without question that
the Tuskegee Airmen are deserving of the Congressional Gold Medal.
According to existing records, I am proud to say that 155 Tuskegee
Airmen originated from my State of Michigan.
In closing, I urge my colleagues in the Senate to swiftly act on this
legislation, a most deserving honor and tribute to the Tuskegee Airmen.
I also ask unanimous consent that the text of the legislation be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 392
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. FINDINGS.
Congress finds the following:
(1) In 1941, President Franklin D. Roosevelt overruled his
top generals and ordered the creation of an all Black flight
training program. President Roosevelt took this action one
day after the NAACP filed suit on behalf of Howard University
student Yancy Williams and others in Federal court to force
the Department of War to accept Black pilot trainees. Yancy
Williams had a civilian pilot's license and had earned an
engineering degree. Years later, Major Yancy Williams
participated in an air surveillance project created by
President Dwight D. Eisenhower.
(2) Due to the rigid system of racial segregation that
prevailed in the United States during World War II, Black
military pilots were trained at a separate airfield built
near Tuskegee, Alabama. They became known as the ``Tuskegee
Airmen''.
(3) The Tuskegee Airmen inspired revolutionary reform in
the Armed Forces, paving the way for full racial integration
in the Armed Forces. They overcame the enormous challenges of
prejudice and discrimination, succeeding, despite obstacles
that threatened failure.
(4) From all accounts, the training of the Tuskegee Airmen
was an experiment established to prove that so-called
``coloreds'' were incapable of operating expensive and
complex combat aircraft. Studies commissioned by the Army War
College between 1924 and 1939 concluded that Blacks were
unfit for leadership roles and incapable of aviation.
Instead, the Tuskegee Airmen excelled.
(5) Overall, some 992 Black pilots graduated from the pilot
training program of the Tuskegee Army Air Field, with the
last class finishing in June 1946, 450 of whom served in
combat. The first class of cadets began in July 1941 with 13
airmen, all of whom had college degrees, some with Ph.D.'s,
and all of whom had pilot's licenses. One of the graduates
was Captain Benjamin O. Davis Jr., a United States Military
Academy graduate. Four aviation cadets were commissioned as
second lieutenants, and 5 received Army Air Corps silver
pilot wings.
(6) That the experiment achieved success rather than the
expected failure is further evidenced by the eventual
promotion of 3 of these pioneers through the commissioned
officer ranks to flag rank, including the late General
Benjamin O. Davis, Jr., United States Air Force, the late
General Daniel ``Chappie'' James, United States Air Force,
our Nation's first Black 4-star general, and Major General
Lucius Theus, United States Air Force (retired).
(7) Four hundred fifty Black fighter pilots under the
command of then Colonel Benjamin O. Davis, Jr., fought in
World War II aerial battles over North Africa, Sicily, and
Europe, flying, in succession, P-40, P-39, P-47, and P-51
aircraft. These gallant men flew 15,553 sorties and 1,578
missions with the 12th Tactical Air Force and the 15th
Strategic Air Force.
(8) Colonel Davis later became the first Black flag officer
of the United States Air Force, retired as a 3-star general,
and was honored with a 4th star in retirement by President
William J. Clinton.
(9) German pilots, who both feared and respected the
Tuskegee Airmen, called them the ``Schwartze Vogelmenshen''
(or ``Black Birdmen''). White American bomber crews
reverently referred to them as the ``Black Redtail Angels'',
because of the bright red painted on the tail assemblies of
their fighter aircraft and because of their reputation for
not losing bombers to enemy fighters as they provided close
escort for bombing missions over strategic targets in Europe.
(10) The 99th Fighter Squadron, after having distinguished
itself over North Africa, Sicily, and Italy, joined 3 other
Black squadrons, the 100th, the 301st, and the 302nd,
designated as the 332nd Fighter Group. They then comprised
the largest fighter unit in the 15th Air Force. From Italian
bases, they destroyed many enemy targets on the ground and at
sea, including a German destroyer in strafing attacks, and
they destroyed numerous enemy aircraft in the air and on the
ground.
(11) Sixty-six of these pilots were killed in combat, while
another 32 were either forced down or shot down and captured
to become prisoners of war. These Black airmen came home with
150 Distinguished Flying Crosses, Bronze Stars, Silver Stars,
and Legions of Merit, one Presidential Unit Citation, and the
Red Star of Yugoslavia.
(12) Other Black pilots, navigators, bombardiers and
crewman who were trained for medium bombardment duty as the
477th Bomber Group (Medium) were joined by veterans of the
332nd Fighter Group to form the 477th Composite Group, flying
the B-25 and P-47 aircraft. The demands of the members of the
477th Composite Group for parity in treatment and for
recognition as competent military professionals, combined
with the magnificent wartime records of the 99th Fighter
Squadron and the 332nd Fighter Group, led to a review of the
racial policies of the Department of War.
(13) In September 1947, the United States Air Force, as a
separate service, reactivated the 332d Fighter Group under
the Tactical Air command. Members of the 332d Fighter Group
were ``Top Guns'' in the 1st annual Air Force Gunnery Meet in
1949.
(14) For every Black pilot there were 12 other civilian or
military Black men and women performing ground support
duties. Many of these men and women remained in the military
service during the post-World War II era and spearheaded the
integration of the Armed Forces of the United States.
(15) Major achievements are attributed to many of those who
returned to civilian life and earned leadership positions and
respect as businessmen, corporate executives, religious
leaders, lawyers, doctors, educators, bankers, and political
leaders.
(16) A period of nearly 30 years of anonymity for the
Tuskegee Airmen was ended in 1972 with the founding of
Tuskegee Airmen, Inc., in Detroit, Michigan. Organized as a
non-military and nonprofit entity, Tuskegee Airmen, Inc.,
exists primarily to motivate and inspire young Americans to
become participants in our Nation's society and its
democratic process, and to preserve the history of their
legacy.
[[Page S1518]]
(17) The Tuskegee Airmen have several memorials in place to
perpetuate the memory of who they were and what they
accomplished, including--
(A) the Tuskegee Airmen, Inc., National Scholarship Fund
for high school seniors who excel in mathematics, but need
financial assistance to begin a college program;
(B) a museum in historic Fort Wayne in Detroit, Michigan;
(C) Memorial Park at the Air Force Museum at Wright-
Patterson Air Force Base in Dayton, Ohio;
(D) a statue of a Tuskegee Airman in the Honor Park at the
United States Air Force Academy in Colorado Springs,
Colorado; and
(E) a National Historic Site at Moton Field, where primary
flight training was performed under contract with the
Tuskegee Institute.
SEC. 2. CONGRESSIONAL GOLD MEDAL.
(a) Presentation Authorized.--The President is authorized
to award to the Tuskegee Airmen, on behalf of Congress, a
gold medal of appropriate design honoring the Tuskegee Airmen
in recognition of their unique military record, which
inspired revolutionary reform in the Armed Forces.
(b) Design and Striking.--For the purposes of the award
referred to in subsection (a), the Secretary of the Treasury
(hereafter in this Act referred to as the ``Secretary'')
shall strike a gold medal with suitable emblems, devices, and
inscriptions, to be determined by the Secretary.
SEC. 3. DUPLICATE MEDALS.
Under such regulations as the Secretary may prescribe, the
Secretary may strike and sell duplicates in bronze of the
gold medal struck under section 2, at a price sufficient to
cover the costs of the medals, including labor, materials,
dies, use of machinery, and overhead expenses.
SEC. 4. NATIONAL MEDALS.
Medals struck pursuant to this Act are national medals for
purposes of chapter 51 of title 31, United States Code.
SEC. 5. AUTHORIZATION OF APPROPRIATIONS; PROCEEDS OF SALE.
(a) Authorization of Appropriations.--There is authorized
to be charged against the United States Mint Public
Enterprise Fund, an amount not to exceed $30,000 to pay for
the cost of the medals authorized under section 2.
(b) Proceeds of Sale.--Amounts received from the sale of
duplicate bronze medals under section 3 shall be deposited in
the United States Mint Public Enterprise Fund.
______
By Mr. AKAKA (for himself, Mr. Durbin, Mr. Leahy, Mr. Sarbanes,
and Mr. Schumer):
S. 393. A bill to require enhanced disclosure to consumers regarding
the consequences of making only minimum required payments in the
repayment of credit card debt, and for other purposes; to the Committee
on Banking, Housing, and Urban Affairs.
Mr. AKAKA. Mr. President, I rise to introduce the Credit Card Minimum
Payment Warning Act. I thank Senators Durbin, Leahy, Sarbanes, and
Schumer for working with me on this legislation and for cosponsoring
this bill.
I am deeply concerned about the enormous debt burdens that Americans
are currently carrying. I share the concern on debts we expect from the
Social Security program. Revolving Debt, mostly comprised of credit
card debt, has increased from $54 billion in January 1980 to more than
$780 billion in November 2004. A U.S. Public Interest Research Group
and Consumer Federation of America analysis of Federal Reserve data
indicates that the average household with debt carries approximately
$10,000 to $12,000 in total revolving debt and has nine credit cards.
During all of 1980, only 287,570 consumers filed for bankruptcy. As
consumer debt burdens have ballooned, the number of bankruptcies have
increased significantly. From January through September of 2004,
approximately 1.2 million consumers filed for bankruptcy, keeping pace
with last year's record level.
It is imperative that we make consumers more aware of the long-term
effects of their financial decisions, particularly in managing their
credit card debt, so that they can avoid financial pitfalls that may
lead to bankruptcy.
While it is relatively easy to obtain credit, not enough is done to
ensure that credit is properly managed. Currently, credit card
statements fail to include all of the information necessary to allow
individuals to make fully informed financial decisions. Additional
disclosure is needed to ensure that individuals completely understand
the implications of their credit card use and costs of only making the
minimum payments required by credit card companies.
Our legislation will provide a wake up call for consumers. It will
make it very clear what costs consumers will incur if they make only
the minimum payments on their credit cards. The personalized
information they will receive for each of their accounts will help them
to make informed choices about the payments that they choose to make
towards reducing their balance.
This bill requires a minimum payment warning notification on monthly
statements stating that making the minimum payment will increase the
amount of interest that will be paid and extend the amount of time it
will take to repay the outstanding balance. The bill also requires
informing consumers of how many years and months it will take to repay
their entire balance if they make only the minimum payments. In
addition, the total cost in interest and principal, if the consumer
pays only the minimum payment, would have to be disclosed. These
provisions will make individuals much more aware of the true costs of
their credit card debts. The bill also requires that credit card
companies provide useful information so that people can develop
strategies to free themselves of credit card debt. Consumers would have
to be provided with the amount they need to pay to eliminate their
outstanding balance within 36 months.
Finally, the legislation would require that creditors establish a
toll-free number so that consumers can access trustworthy credit
counselors. In order to ensure that consumers are referred from the
toll-free number to only trustworthy organizations, the agencies for
referral would have to be approved by the Federal Trade Commission and
the Federal Reserve Board as having met comprehensive quality
standards. These standards are necessary because certain credit
counseling agencies have abused their nonprofit, tax-exempt status and
have taken advantage of people seeking assistance in managing their
debts. Many people believe, sometimes mistakenly, that they can place
blind trust in nonprofit organizations and that their fees will be
lower than those of other credit counseling organizations. Too many
individuals may not realize that the credit counseling industry does
not deserve the trust that consumers often place in it.
The Credit Card Minimum Payment Warning Act has been endorsed by the
Consumer Federation of America, Consumers Union, U.S. Public Interest
Research Group, and Consumer Action.
I urge my colleagues to support this legislation that will empower
consumers by providing them with detailed personalized information to
assist them in making informed choices about their credit card use and
repayment. This bill makes clear the adverse consequences of uninformed
choices such as making only minimum payments and provides opportunities
to locate assistance to eliminate credit card debts.
I ask unanimous consent that a letter of support and fact sheet from
organizations in support of the legislation be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
January 28, 2005.
Hon. Daniel K. Akaka,
U.S. Senate,
Washington, DC.
Hon. Paul S. Sarbanes,
U.S. Senate,
Washington, DC.
Hon. Richard J. Durbin
U.S. Senate,
Washington, DC.
Dear Senators Akaka, Durbin and Sarbanes: The undersigned
national consumer organizations write to strongly support the
Credit Card Minimum Payment Warning Act. The Act would
require credit card issuers to disclose more information to
consumers about the costs associated with paying their bills
at ever-declining minimum payment rates. The Act provides a
personalized ``price tag'' so consumers can understand what
are the real costs of credit card debt and avoid financial
problems in the future.
Undisputed evidence links the rise in bankruptcy in recent
years to the increase in consumer credit outstanding. These
numbers have moved in lockstep for more than 20 years.
Revolving credit, for example (most of which is credit card
debt) ballooned from $214 billion in January 1990 to over
$780 billion currently. As family debt increases, debt
service payments on items such as interest and late fees take
an ever-increasing piece of their budget. For some families,
this contributes to the collapse of their budget. Bankruptcy
becomes the only way out. (See the attached fact sheet for
more information about the scope and impact of credit card
debt.)
[[Page S1519]]
Credit card issuers have exacerbated the financial problems
that many families have faced by lowering minimum payment
amounts, from around 4 percent of the balance owed, to about
2 percent currently. This decline in the typical minimum
payment is a significant reason for the rise in consumer
bankruptcies in recent years. A low minimum payment often
barely covers interest obligations. It convinces many
borrowers that they are financially sound as long as they can
meet all of their minimum payment obligations. However, those
that cannot afford to make these payments often carry so much
debt that bankruptcy is usually the only viable option.
This bill will provide consumers several crucial pieces of
information on their monthly credit card statement:
A ``minimum payment warning'' that paying at the minimum
rate will increase the amount of interest that is owed and
the time it will take to repay the balance.
The number of years and months that it will take the
consumer to payoff the balance at the minimum rate.
The total costs in interest and principal if the consumer
pays at the minimum rate.
The monthly payment that would be required to pay the
balance off in three years.
The bill also requires that credit card companies provide a
toll-free number that consumers can call to receive
information about credit counseling and debt management
assistance. In order to assure that consumers are referred to
honest, legitimate non-profit credit counselors, the bill
requires the Federal Reserve to screen these agencies to
ensure that they meet rigorous quality standards.
Our groups commend you for offering this very important and
long-overdue piece of legislation. It provides the kind of
personalized, timely disclosure information that will help
debt-choked families make informed decisions and start to
work their way back to financial health.
Sincerely,
Travis B. Plunkett,
Legislative Director, Consumer Federation of America.
Susanna Montezemolo,
Policy Analyst, Consumers Union.
Edmund Mierzwinski,
Consumer Programs Director, U.S. Public Interest Research
Group.
Linda Sherry,
Editorial Director, Consumer Action.
____
Facts About Credit Card Debt
Revolving debt (most of which is credit card debt) has
ballooned from $54 billion in January 1980 to over $780
billion currently.
Billion
January 1980........................................................$54
January 1984.........................................................79
January 1990........................................................214
January 1994........................................................313
November 2004.....................................................780.1
Source: http://www.federalreserve.gov/Releases/G19/hist/cc hist
sa.html.
About one-twelfth of this debt is paid off before it incurs
interest, so Americans pay interest on an annual load of
about $690 billion in revolving debt.
According to the Federal Reserve, the most recent average
credit card interest rate is 12.4% APR. At simple interest,
with no compounding, then, consumers pay at least $85 billion
annually in interest on credit card and other revolving debt.
Just about 55 percent of consumers carry debt. The rest are
convenience users.
From PIRG/CFA analysis of Federal Reserve data, the average
household with debt carries approximately $10,000-12,000 in
total revolving debt and has approximately nine cards.
Facts About the Effect of Minimum Monthly Payments
A household making the monthly minimum required payments on
this debt (usually the greater of 2 percent of the unpaid
balance or $20) at the very low average 12.4% APR (many
consumers pay much higher penalty rates than this FRB-
reported average) would pay $1,175 in interest just in the
first year, even if these cards are cut up and not used
again.
This household would pay a total of over $9,800 in interest
over a period of 25 years and three months. That fact is not
disclosed.
A household or consumer who merely doubled their minimum
payment and paid 4% of the amount due would fare better. A
household or consumer that paid 10% of the balance each month
would fare much better. Here is a comparison.
Minimum payment warnings would encourage larger payments and
save consumers thousands of dollars in high-priced credit
card debt.
------------------------------------------------------------------------
Monthly Payment (% of unpaid
Credit card debt of $10,000 at Modest balance)
12.4% APR -----------------------------
2% 4% 10%
------------------------------------------------------------------------
First Year Interest =..................... $1,175 $1,054 $775
Total Interest Owed =..................... $9,834 $3,345 $1,129
Months To Pay............................. 303 127 52
Years To Pay.............................. 25.3 10.6 4.3
------------------------------------------------------------------------
Calculations by U.S. PIRG. Also see http://www.truthaboutcredit.org/
lowerapr.htm for additional comparisons and amortization tables.
Giving consumers a minimum payment warning on their credit
card statements is the most powerful action Congress could
take to increase consumer understanding of the cost of credit
card debt.
Facts About Who Owes Credit Card Debt
Credit card debt has risen fastest among lower-income
Americans. These families saw the largest increase--a 184
percent rise in their debt--but even very high-income
families had 28 percent more credit card debt in 2001 than
they did in 1989. Source: Demos.
Thirty-nine percent of student loan borrowers now graduate
with unmanageable levels of debt, meaning that their monthly
payments are more than 8% of their monthly incomes. According
to PIRG analysis of the 1999-2000 NPSAS data, in 2001, 41% of
the graduating seniors carried a credit card balance, with an
average balance of $3,071. Student loan borrowers were even
more likely to carry credit card debt, with 48% of borrowers
carrying an average credit card balance of $3,176. See ``The
Burden of Borrowing,'' 2002, Tracey King, the State PIRGs,
http://www.pirg.org/highered/BurdenofBorrowing.pdf.
While less likely to have credit cards than white families,
data show that African-American and Hispanic families are
more likely to carry debt.
------------------------------------------------------------------------
% with Cardholding Average
credit % with debt credit card
cards 2001 2001 debt 2001
------------------------------------------------------------------------
All families..................... 76 55 $4,126
White families................... 82 51 4,381
Black families................... 59 84 2,950
Hispanic families................ 53 75 3,691
------------------------------------------------------------------------
Demos calculations using 2001 Survey of Consumer Finances. See Borrowing
To Make Ends Meet. Demos, http://www.demos2/3usa.org/pubs/
borrowing_tomake_ends_meet.pdf.
Seniors (Over age 65)
Credit card debt among older Americans increased by 89
percent from 1992 to 2001. Average balances among indebted
adults over 65 increased by 89 percent, to $4,041.
Seniors between 65 and 69 years old, presumably the newly-
retired, saw the most staggering rise in credit card debt--
217 percent--to an average of $5,844.
Female-headed senior households experienced a 48 percent
increase between 1992 and 2001, to an average of $2,319.
Among seniors with incomes under $50,000 (70 percent of
seniors), about one in five families with credit card debt is
in debt hardhip--spending over 40 percent of their income on
debt payments, including mortgage debt.
Transitioners (ages 55-64)
Transitioners experienced a 47 percent increase in credit
card debt between 1992 and 2001, to an average of $4,088.
The average credit card-indebted family in this age group
now spends 31 percent of their income on debt payments, a 10
percent increase over the decade.
Mr. AKAKA. I also ask unanimous consent that the text of the Credit
Card Minimum Payment Warning Act be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 393
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Credit Card Minimum Payment
Warning Act of 2005''.
SEC. 2. ENHANCED CONSUMER DISCLOSURES REGARDING MINIMUM
PAYMENTS.
Section 127(b) of the Truth in Lending Act (15 U.S.C.
1637(b)) is amended by adding at the end the following:
``(11)(A) Information regarding repayment of the
outstanding balance of the consumer under the account,
appearing in conspicuous type on the front of the first page
of each such billing statement, and accompanied by an
appropriate explanation, containing--
``(i) the words `Minimum Payment Warning: Making only the
minimum payment will increase the amount of interest that you
pay and the time it will take to repay your outstanding
balance.';
``(ii) the number of years and months (rounded to the
nearest month) that it would take for the consumer to pay the
entire amount of that balance, if the consumer pays only the
required minimum monthly payments;
``(iii) the total cost to the consumer, shown as the sum of
all principal and interest payments, and a breakdown of the
total costs in interest and principal, of paying that balance
in full if the consumer pays only the required minimum
monthly payments, and if no further advances are made;
``(iv) the monthly payment amount that would be required
for the consumer to eliminate the outstanding balance in 36
months if no further advances are made; and
``(v) a toll-free telephone number at which the consumer
may receive information about accessing credit counseling and
debt management services.
``(B)(i) Subject to clause (ii), in making the disclosures
under subparagraph (A) the creditor shall apply the interest
rate in effect on the date on which the disclosure is made.
``(ii) If the interest rate in effect on the date on which
the disclosure is made is a temporary rate that will change
under a contractual provision specifying a subsequent
interest rate or applying an index or formula for subsequent
interest rate adjustment, the creditor shall apply the
interest rate in effect on the date on which the disclosure
is made for as long as that interest rate will
[[Page S1520]]
apply under that contractual provision, and then shall apply
the adjusted interest rate, as specified in the contract. If
the contract applies a formula that uses an index that varies
over time, the value of such index on the date on which the
disclosure is made shall be used in the application of the
formula.''.
SEC. 3. ACCESS TO CREDIT COUNSELING AND DEBT MANAGEMENT
INFORMATION.
(a) Guidelines Required.--
(1) In general.--Not later than 1 year after the date of
enactment of this Act, the Board of Governors of the Federal
Reserve System and the Federal Trade Commission (in this
section referred to as the ``Board'' and the ``Commission'',
respectively) shall jointly, by rule, regulation, or order,
issue guidelines for the establishment and maintenance by
creditors of a toll-free telephone number for purposes of the
disclosures required under section 127(b)(11) of the Truth in
Lending Act, as added by this Act.
(2) Approved agencies.--Guidelines issued under this
subsection shall ensure that referrals provided by the toll-
free number include only those agencies approved by the Board
and the Commission as meeting the criteria under this
section.
(b) Criteria.--The Board and the Commission shall only
approve a nonprofit budget and credit counseling agency for
purposes of this section that--
(1) demonstrates that it will provide qualified counselors,
maintain adequate provision for safekeeping and payment of
client funds, provide adequate counseling with respect to
client credit problems, and deal responsibly and effectively
with other matters relating to the quality, effectiveness,
and financial security of the services it provides;
(2) at a minimum--
(A) is registered as a nonprofit entity under section
501(c) of the Internal Revenue Code of 1986;
(B) has a board of directors, the majority of the members
of which--
(i) are not employed by such agency; and
(ii) will not directly or indirectly benefit financially
from the outcome of the counseling services provided by such
agency;
(C) if a fee is charged for counseling services, charges a
reasonable and fair fee, and provides services without regard
to ability to pay the fee;
(D) provides for safekeeping and payment of client funds,
including an annual audit of the trust accounts and
appropriate employee bonding;
(E) provides full disclosures to clients, including funding
sources, counselor qualifications, possible impact on credit
reports, any costs of such program that will be paid by the
client, and how such costs will be paid;
(F) provides adequate counseling with respect to the credit
problems of the client, including an analysis of the current
financial condition of the client, factors that caused such
financial condition, and how such client can develop a plan
to respond to the problems without incurring negative
amortization of debt;
(G) provides trained counselors who--
(i) receive no commissions or bonuses based on the outcome
of the counseling services provided;
(ii) have adequate experience; and
(iii) have been adequately trained to provide counseling
services to individuals in financial difficulty, including
the matters described in subparagraph (F);
(H) demonstrates adequate experience and background in
providing credit counseling;
(I) has adequate financial resources to provide continuing
support services for budgeting plans over the life of any
repayment plan; and
(J) is accredited by an independent, nationally recognized
accrediting organization.
______
By Mr. CORNYN (for himself and Mr. Leahy):
S. 394. A bill to promote accessibility, accountability, and openness
in Government by strengthening section 552 of title 5, United States
Code (commonly referred to as the Freedom of Information Act), and for
other purposes; to the Committee on the Judiciary.
(See exhibit 1.)
Mr. CORNYN. 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.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 2.)
Mr. CORNYN. 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.
[[Page S1521]]
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
[[Page S1522]]
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
DC.
Dear Senator Cornyn: I strongly endorse the proposed OPEN
Government Act or 2005, which will strengthen the federal
Freedom of Information Act (FOIA) and advance government
openness.
James Madison once observed that ``[k]nowledge will forever
govern ignorance; and a people who mean to be their own
governors must arm themselves with the power which knowledge
gives.'' The Father of the Constitution recognized that our
constitutional democracy, which is rooted in self-government,
requires the informed consent of the people. I share
Madison's belief, and yours, that a government of the people,
by the people, and for the people must operate in full view
of the people. Openness and accountability--not secrecy and
concealment--are what keep democracies strong and enduring.
A commitment to open government underpins both FOIA and the
Texas Public Information Act, which you interpreted and
forcefully defended as the 49th Attorney General of Texas. As
your successor I am proud that Texas leads the nation in
promoting open government and privileged to build upon your
efforts to make sure the public's business is conducted in
full sunshine. As you know, the Texas Public Information Act
declares that ``government is the servant and not the master
of the people,'' and ``[t]he people do not give their public
servants the right to decide what is good for the people to
know and what is not good for them to know.''
The OPEN Government Act of 2005 will bring similar benefits
to all Americans and ensure that FOIA finally lives up to its
noble ideals. By closing loopholes and enabling government to
be more responsive to requests for information, the OPEN
Govermnent Act of 2005 will modernize FOIA's nearly 40-year-
old commitment to open and accessible government.
Our system of self-government does not rest on the public's
need to know, but on its fundamental right to know. Your
proposed legislation will codify this venerable standard in
federal law and reinforce one of our nation's first
principles: open government leads inexorably to good
government.
I cannot overstate my support for these important reforms
and commend you for your exceptional leadership on this
issue.
Sincerely,
Greg Abbott,
Attorney General of Texas.
____
American Association of Law Libraries,
Washington Affairs Office,
Washington, DC, February 14, 2005.
Hon. John Cornyn,
U.S. Senate,
Washington, DC.
Dear Senator Cornyn: On behalf of the American Association
of Law Libraries, I commend you for your leadership in
promoting access to government information by introducing the
Openness Promotes Effectiveness in our National (OPEN)
Government Act of 2005. We share your belief that accessible
government information is both an essential principle of a
democratic society and a valuable public good.
The American Association of Law Libraries (AALL) is a
nonprofit educational organization with over 5000 members
nationwide who respond to the legal information needs of
legislators, judges, and other public officials at all levels
of government, corporations and small businesses, law
professors and students, attorneys, and members of the
general public. Our mission is to promote and enhance the
value of law libraries, to foster law librarianship and to
provide leadership and advocacy in the field of legal
information and information policy.
AALL believes that public inspection of government records,
including electronic records, under the Freedom of
Information Act (FOIA) is the foundation for citizen access
to government information. The OPEN Government Act of 2005
provides important and timely amendments to FOIA. AALL
supports this important legislation and we look forward to
working with you to ensure its prompt enactment.
Sincerely,
Mary Alice Baish,
Associate Washington Affairs Representative.
____
American Civil Liberties Union,
Washington, DC, February 14, 2005.
Hon. John Cornyn,
U.S. Senate,
Washington, DC.
Hon. Patrick Leahy,
U.S. Senate,
Washington, DC.
Dear Senators Cornyn and Leahy: On behalf of the American
Civil Liberties Union and its more than 400,000 members, we
are pleased to endorse the Openness Promotes Effectiveness in
our National Government Act of 2005, the ``OPEN Government
Act of 2005.''
As the Supreme Court has made clear, ``disclosure, not
secrecy, is the dominant objective of the Act,'' Department
of the Air Force v. Rose, 425 U.S. 352 (1976). Nevertheless,
secrecy, not openness, all too often seems to be the dominant
trend of agencies in recent times.
The OPEN Government Act includes a series of much-needed
corrections to policies that have eroded the promise of the
Freedom of Information Act (FOIA). These include ensuring
requesters will have timely information on the status of
their requests, enforceable time limits for agencies to
respond to requests, news media status rules that recognize
the reality of freelance journalists and the Internet, and
strong incentives--including both carrots and sticks--for
agency employees to improve FOIA compliance. The OPEN
Government Act also includes a much needed review of the new
exemption in the Homeland Security Act for critical
infrastructure information.
James Madison warned against ``a popular Government without
popular information,'' saying that ``a people who mean to be
their own Governors, must arm themselves with the power
knowledge gives.'' We strongly urge passage of the OPEN
Government Act
[[Page S1523]]
of 2005 to help restore to the people some of that power.
Sincerely,
Laura W. Murphy,
Director, Washington Legislative Office.
Timothy H. Edgar,
Legislative Counsel.
____
American Society of
Newspaper Editors,
Reston, VA, February 9, 2005.
Hon. John Cornyn,
U.S. Senate,
Washington, DC.
Dear Senator Cornyn: On behalf of the American Society of
Newspaper Editors (ASNE), I am writing to congratulate you on
the Introduction of the ``Open Government Act.'' Since the
organization was founded in 1922, ASNE's membership of
directing editors of dally newspapers throughout the United
States has worked to assist journalists and provide an
unfettered and effective press in the service of the American
people.
ASNE is proud to endorse the Open Government Act as
legislation that can help us achieve these ideals. As you
wrote in your recent article in the LBJ Journal of Public
Affairs, ``Our national commitment to democracy and freedom
is not merely some abstract notion. It is a very real and
continuing effort, and an essential element of that effort is
an open and accessible government'' The Open Government Act
is a ringing reminder that the Freedom of Information Act
(FOIA) is the cornerstone of this principle. Your bill comes
at a time when many executive agencies are able to shortcut
FOIA's guarantees of access to government documents while
avoiding any repercussion for their actions.
We appreciate your desire to provide a meaningful
enforcement mechanism for those who see that FOIA is not
achieving its promise of open and accessible records for all.
The bill's pragmatic focus on procedural, rather than
substantive, change is noteworthy; instead of rewriting the
law in a way that would promote or disfavor certain special
interests, you wisely seek to bring government and citizenry
together to make FOIA more efficient and effective.
ASNE applauds your efforts and joins you in urging passage
of this bill in the 109th Congress.
Sincerely,
Karla Garrett Harshaw,
President.
____
Federation of American Scientists,
Washington, DC, February 4, 2005.
Senator John Cornyn,
U.S. Senate,
Washington, DC.
Dear Senator Cornyn: I am writing to express the support of
the Federation of American Scientists for your continuing
efforts to promote openness in government, and specifically
for your proposed legislation to strengthen the Freedom of
Information Act (FOIA).
It is our belief that openness generally, and the FOIA in
particular, have an importance that transcends the usual
political divides. By making information available to our
citizens, we advance the ideals of democratic self-governance
that we all share.
Your proposed legislation would strengthen the FOIA in
several important ways: It would reverse recent trends to use
fee recovery as an impediment to FOIA processing; it would
strengthen the position of requesters who are forced to
pursue litigation to gain the records they seek; it would
enhance and clarify the administration of the FOIA; and it
would create an important new mechanism to audit agency
compliance with the FOIA, among other important provisions.
Perhaps most fundamentally, your legislation marks a
hopeful new resurgence of congressional attention to these
fundamental issues.
Thank you for your leadership.
Sincerely,
Steven Aftergood,
Project Director,
FAS Project on Government Secrecy.
____
Free Congress Foundation,
Washington, DC, February 11, 2005.
Hon. John Cornyn,
U.S. Senate,
Washington, DC.
Dear Senator Cornyn: We would like to commend your
introduction of the OPEN Government Act of 2005.
Conservatives believe checks and balances are essential to
our system of government. One important check is to ensure
that citizens and the news media have access to what the
Federal Government's departments and agencies are doing.
Unfortunately, as noted by Austin American Statesman reporter
Chuck Lindell, too often the Federal Government's bureaucracy
demonstrates no interest in replying to such requests in a
timely and efficient manner. It prefers to operate in
darkness, not having their actions exposed to the sunlight of
public scrutiny.
Citizens have a right to know what the Federal Government
is doing with their tax dollars. The fact that the Department
of Agriculture and the Environmental Protection Agency can
take years to answer requests for information should be
disturbing to conservatives who bemoan the arrogance and
unresponsiveness of Big Government. Every citizen and every
news reporter is entitled to a prompt answer to their request
for information.
``The buck stops here'' is a snappy soundbite, and may have
once represented a workable philosophy of governing in
simpler times. The reality is that in today's Washington it's
hard to tell where the buck is because it is simply obscured
by an unresponsive bureaucracy. Ironically, technology and
increasing expectations of transparency in government render
the mindset practiced by a recalcitrant bureaucracy obsolete.
A measure such as the OPEN Government Act of 2005 can help
level the playing field in favor of the citizenry.
Sincerely,
Steve Lilienthal,
Director,
Center for Privacy & Technology Policy.
____
The Freedom of Information
Foundation of Texas,
Dallas, TX, February 8, 2005.
Ms. Katherine Garner,
Executive Director.
Dear Board Members: United States Senator John Cornyn will
introduce legislation to strengthen the Freedom of
Information Act next week. Among other things, the Open
Government Act of 2005 would provide meaningful deadlines for
federal agencies to act on Freedom of Information requests
and impose consequences on federal agencies for missing
statutory deadlines. In light of the fact that some federal
agencies have had requests for information pending for as
long as seventeen years, the Foundation believes Senator
Cornyn's proposals are much needed and overdue. The proposed
legislation would also make it easier for successful
litigants to recover their attorney's fees when litigation
becomes necessary, strengthen reporting requirements on
government agencies' FOIA compliance, establish an ombudsman
to resolve FOIA complaints without the need to resort to
litigation and enhance the authority of the Office of Special
Counsel to take disciplinary action against government
officials who arbitrarily and capriciously deny disclosure.
The Foundation therefore enthusiastically endorses Senator
Cornyn's proposed legislation and encourages each of your
organizations to do the same.
Sincerely,
Joel R. White.
____
The Heritage Foundation,
Center for Media and Public Policy,
Washington, DC, February 11, 2005.
Sen. John Cornyn,
Hart Senate Office Building,
Washington, DC.
Dear Senator Cornyn: Insuring the continuance of our
Republican liberty depends upon maintaining the right of the
people to know as much as possible about what their
government is doing in order to hold the public officials and
employees accountable.
Protecting this accountability tool grows ever more
important as the power of the federal government continues
its historic growth, with its attendant tendency continually
to become more and more resistant to genuine transparency.
That is why a healthy Freedom of Information Act is so vital.
But while the federal government has grown exponentially
since passage of the FOIA in 1966, the law's effectiveness
has steadily declined as politicians and career bureaucrats
with a shared interest in avoiding accountability have become
increasingly skilled at exploiting loopholes, creatively
interpreting administrative provisions and relying upon the
paucity of legal resources available to many requestors to
avoid satisfying either the letter or spirit of the statute.
Indeed, the National Security Archive's 2003 survey that
found an FOIA system ``in extreme disarray.'' The Archive
found that ``agency contact information on the web was often
inaccurate; response times largely failed to meet the
statutory standard; only a few agencies performed thorough
searches, including e-mail and meeting notes; and the lack of
central accountability at the agencies resulted in lost
requests and inability to track progress.''
I believe the comprehensive package of reforms contained in
``The Open Government Act of 2005'' would go far in restoring
the effectiveness of the FOIA as an accountability tool for
the people in dealing with their government.
We must remember that transparency and accountability are
the strongest antidotes to the inevitable abuses of Big
Government and are thus essential guarantors of every
individual's liberty and prerequisites for the maintenance of
our common security.
Sincerely,
Mark Tapscott,
Director.
____
National Newspaper Association,
Washington Programs,
Arlington, VA, February 9, 2005.
Hon. John Cornyn,
U.S. Senate,
Washington DC.
Dear Senator Cornyn: The National Newspaper Association, an
organization representing over 2,500 community newspapers
nationwide, supports your efforts to strengthen the Freedom
of Information Act. The OPEN Government Act of 2005 is a
sound step toward a better FOIA.
Openness and transparency in government is vital to the
proper functioning of a democratic government. Ensuring
unhindered access to government information by the public is
the utmost responsibility of our elected leaders, for without
this access, it would be impossible for the consent of the
governed to be truly informed.
The Freedom of Information Act is an important tool in
achieving this lofty goal, and
[[Page S1524]]
it has proven to be useful to community newspapers around the
country. The Act requires continual oversight from Congress
to ensure the spirit of the law remains intact. Congress has
neglected this duty in recent years, and we are pleased that
you have undertaken efforts to rectify this neglect.
We want to emphasize that FOIA serves a function beyond
providing records to requesters filing written requests. It
also serves as a talisman for openness in similar state laws.
It provides a framework for releasing information that is
informally requested by journalists and others--a function of
particular importance to community newspapers.
We will look forward to working with you as the bill is
considered by the Judiciary Committee.
Sincerely,
Matthew Paxton,
Chairman,
Government Relations Committee.
____
Newspaper Association of America,
Vienna, VA, February 10, 2005.
Hon. John Cornyn,
Chairman, Senate Judiciary Subcommittee on the Constitution,
Civil Rights, & Property Rights, Washington, DC.
Dear Senator Cornyn: On behalf of the Newspaper Association
of America (NAA), a non-profit organization representing more
than 2,000 newspapers in the United States and Canada, I want
to thank you for introducing the Open Government Act of 2005.
The Freedom of Information Act is premised on the belief
that an informed citizenry is essential to democracy. The
Open Government Act will strengthen the Freedom of
Information Act and send a clear message that the openness
and accessibility of the federal government is a vital part
of our democratic process.
We commend you for your outstanding leadership, especially
with regard to the inclusion of the provisions that would
close current FOIA loopholes, prevent new ones, and restore
meaningful deadlines for agency action on FOIA requests.
Additionally, the legislation will make it easier for the
public to access information about their government through
the creation of a FOlA ombudsmen, agency FOIA hotlines, and
tracking systems for FOIA requests.
Thank you again for your leadership on this important
issue. We look forward to working with you and your staff in
the coming months to ensure passage of the Open Government
Act of 2005 in the 109th Congress.
Thanks for reading,
John F. Sturm,
President and CEO.
____
People for the American Way,
Washington, DC, February 9, 2005.
Hon. John Cornyn,
U.S. Senate,
Washington, DC.
Hon. Patrick Leahy,
U.S. Senate,
Washington, DC.
Dear Senators Cornyn and Leahy: On behalf of People For the
American Way (PFAW) and its more than 675,000 members and
supporters, I write in support of your efforts to strengthen
the Freedom of Information Act (FOIA) and promote greater
public access to government records through the proposed Open
Government Act of 2005 (OGA).
Open government is a vital component of this country's
democratic framework, allowing citizens to learn about the
activities of their government and helping ensure government
accountability. FOIA, which permits public access to federal
records, has helped establish the public's right to obtain
government information and created a strong presumption in
favor of disclosure. Serious problems have arisen with full
and timely agency compliance with FOIA and its goals,
however, necessitating the types of important FOIA reforms
contemplated in the OGA.
In particular, PFAW is supportive of the Act's use of
penalties to enforce compliance with FOIA deadlines,
particularly the provision imposing a presumptive waiver of
FOIA exemptions when an agency fails to meet the 20-day
production deadline, and the requirement that Congress be
explicit when it considers creating additional exemptions
under 5 U.S.C. 552(b)(3).
We also support the provision in the bill that would permit
an award of attorney fees when a nonfrivolous lawsuit has
served as the catalyst for voluntary disclosure of a
substantial part of a FOIA request. It is imperative that a
requester--who must incur litigation costs to enforce agency
compliance with the law--be able to recover attorneys' fees
and litigation costs in such cases, particularly in order to
discourage arbitrary and unlawful agency rejections of
legitimate FOIA requests.
Finally, we believe that the various recordkeeping and
monitoring provisions of the Open Government Act--including
monitoring of the Department of Homeland Security's use of
its ``critical infrastructure information'' exemption and
mandatory agency disclosure of the 10 oldest active
requests--are useful and necessary to ensure the integrity of
the open government process and to gather the information
needed to modify and adjust our open government laws going
forward.
We applaud your efforts to reaffirm the vital importance of
open government in this country and believe that the Open
Government Act is an encouraging first step toward that goal.
Sincerely,
Ralph G. Neas,
President.
Mr. CORNYN. Mr. President, I ask unanimous consent that the text of
the bill be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 394
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Openness Promotes
Effectiveness in our National Government Act of 2005'' or the
``OPEN Government Act of 2005''.
SEC. 2. FINDINGS.
Congress finds that--
(1) the Freedom of Information Act was signed into law on
July 4, 1966, because the American people believe that--
(A) our constitutional democracy, our system of self-
government, and our commitment to popular sovereignty depends
upon the consent of the governed;
(B) such consent is not meaningful unless it is informed
consent; and
(C) as Justice Black noted in his concurring opinion in
Barr v. Matteo (360 U.S. 564 (1959)), ``The effective
functioning of a free government like ours depends largely on
the force of an informed public opinion. This calls for the
widest possible understanding of the quality of government
service rendered by all elective or appointed public
officials or employees.'';
(2) the American people firmly believe that our system of
government must itself be governed by a presumption of
openness;
(3) the Freedom of Information Act establishes a ``strong
presumption in favor of disclosure'' as noted by the United
States Supreme Court in United States Department of State v.
Ray (502 U.S. 164 (1991)), a presumption that applies to all
agencies governed by that Act;
(4) ``disclosure, not secrecy, is the dominant objective of
the Act,'' as noted by the United States Supreme Court in
Department of Air Force v. Rose (425 U.S. 352 (1976));
(5) in practice, the Freedom of Information Act has not
always lived up to the ideals of that Act; and
(6) Congress should regularly review section 552 of title
5, United States Code (commonly referred to as the Freedom of
Information Act), in order to determine whether further
changes and improvements are necessary to ensure that the
Government remains open and accessible to the American people
and is always based not upon the ``need to know'' but upon
the fundamental ``right to know''.
SEC. 3. PROTECTION OF FEE STATUS FOR NEWS MEDIA.
Section 552(a)(4)(A)(ii) of title 5, United States Code, is
amended by adding at the end the following:
``In making a determination of a representative of the news
media under subclause (II), an agency may not deny that
status solely on the basis of the absence of institutional
associations of the requester, but shall consider the prior
publication history of the requester. Prior publication
history shall include books, magazine and newspaper articles,
newsletters, television and radio broadcasts, and Internet
publications. If the requestor has no prior publication
history or current affiliation, the agency shall consider the
requestor's stated intent at the time the request is made to
distribute information to a reasonably broad audience.''.
SEC. 4. RECOVERY OF ATTORNEY FEES AND LITIGATION COSTS.
Section 552(a)(4)(E) of title 5, United States Code, is
amended by adding at the end the following: ``For purposes of
this section, a complainant has `substantially prevailed' if
the complainant has obtained a substantial part of its
requested relief through a judicial or administrative order
or an enforceable written agreement, or if the complainant's
pursuit of a nonfrivolous claim or defense has been a
catalyst for a voluntary or unilateral change in position by
the opposing party that provides a substantial part of the
requested relief.''.
SEC. 5. DISCIPLINARY ACTIONS FOR ARBITRARY AND CAPRICIOUS
REJECTIONS OF REQUESTS.
Section 552(a)(4)(F) of title 5, United States Code, is
amended--
(1) by inserting ``(i)'' after ``(F)''; and
(2) by adding at the end the following:
``(ii) The Attorney General shall--
``(I) notify the Special Counsel of each civil action
described under the first sentence of clause (i); and
``(II) annually submit a report to Congress on the number
of such civil actions in the preceding year.
``(iii) The Special Counsel shall annually submit a report
to Congress on the actions taken by the Special Counsel under
clause (i).''.
SEC. 6. TIME LIMITS FOR AGENCIES TO ACT ON REQUESTS.
(a) Time Limits.--
(1) In general.--Section 552(a)(6)(A)(i) of title 5, United
States Code, is amended by inserting ``, and the 20-day
period shall commence on the date on which the request is
first received by the agency, and shall not be tolled without
the consent of the party filing the request'' after ``adverse
determination''.
(2) Effective date.--The amendment made by this subsection
shall take effect 1 year after the date of enactment of this
Act.
[[Page S1525]]
(b) Availability of Agency Exemptions.--
(1) In general.--Section 552(a)(6) of title 5, United
States Code, is amended by adding at the end the following:
``(G)(i) If an agency fails to comply with the applicable
time limit provisions of this paragraph with respect to a
request, the agency may not assert any exemption under
subsection (b) to that request, unless disclosure--
``(I) would endanger the national security of the United
States;
``(II) would disclose personal private information
protected by section 552a or proprietary information; or
``(III) is otherwise prohibited by law.
``(ii) A court may waive the application of clause (i) if
the agency demonstrates by clear and convincing evidence that
there was good cause for the failure to comply with the
applicable time limit provisions.''.
(2) Effective date and application.--The amendment made by
this subsection shall take effect 1 year after the date of
enactment of this Act and apply to requests for information
under section 552 of title 5, United States Code, filed on or
after that effective date.
SEC. 7. INDIVIDUALIZED TRACKING NUMBERS FOR REQUESTS AND
STATUS INFORMATION.
(a) In General.--Section 552(a) of title 5, United States
Code, is amended by adding at the end the following:
``(7) Each agency shall--
``(A) establish a system to assign an individualized
tracking number for each request for information under this
section;
``(B) not later than 10 days after receiving a request,
provide each person making a request with the tracking number
assigned to the request; and
``(C) establish a telephone line or Internet service that
provides information about the status of a request to the
person making the request using the assigned tracking number,
including--
``(i) the date on which the agency originally received the
request; and
``(ii) an estimated date on which the agency will complete
action on the request.''.
(b) Effective Date and Application.--The amendment made by
this section shall take effect 1 year after the date of
enactment of this Act and apply to requests for information
under section 552 of title 5, United States Code, filed on or
after that effective date.
SEC. 8. SPECIFIC CITATIONS IN EXEMPTIONS.
Section 552(b) of title 5, United States Code, is amended
by striking paragraph (3) and inserting the following:
``(3) specifically exempted from disclosure by statute
(other than section 552b of this title), provided that such
statute--
``(A) if enacted after the date of enactment of the
Openness Promotes Effectiveness in our National Government
Act of 2005, specifically cites to this section; and
``(B)(i) requires that the matters be withheld from the
public in such a manner as to leave no discretion on the
issue; or
``(ii) establishes particular criteria for withholding or
refers to particular types of matters to be withheld;''.
SEC. 9. REPORTING REQUIREMENTS.
Section 552(e)(1) of title 5, United States Code, is
amended--
(1) in subparagraph (F), by striking ``and'' after the
semicolon;
(2) in subparagraph (G), by striking the period and
inserting a semicolon; and
(3) by adding at the end the following:
``(H) data on the 10 active requests with the earliest
filing dates pending at each agency, including the amount of
time that has elapsed since each request was originally
filed;
``(I) the average number of days for the agency to respond
to a request beginning the date on which the request was
originally filed, the median number of days for the agency to
respond to such requests, and the range in number of days for
the agency to respond to such requests; and
``(J) the number of fee status requests that are granted
and denied, and the average number of days for adjudicating
fee status determinations.
When reporting the total number of requests filed, agencies
shall distinguish between first person requests for personal
records and other kinds of requests, and shall provide a
total number for each category of requests.''.
SEC. 10. OPENNESS OF AGENCY RECORDS MAINTAINED BY A PRIVATE
ENTITY.
Section 552(f) of title 5, United States Code, is amended
by striking paragraph (2) and inserting the following:
``(2) `record' and any other term used in this section in
reference to information includes--
``(A) any information that would be an agency record
subject to the requirements of this section when maintained
by an agency in any format, including an electronic format;
and
``(B) any information described under subparagraph (A) that
is maintained for an agency by an entity under a contract
between the agency and the entity.''.
SEC. 11. OFFICE OF GOVERNMENT INFORMATION SERVICES.
(a) In General.--Chapter 5 of title 5, United States Code,
is amended--
(1) by redesignating section 596 as section 597; and
(2) by inserting after section 595 the following:
``Sec. 596. Office of Government Information Services
``(a) There is established the Office of Government
Information Services within the Administrative Conference of
the United States.
``(b) The Office of Government Information Services shall--
``(1) review policies and procedures of administrative
agencies under section 552 and compliance with that section
by administrative agencies;
``(2) conduct audits of administrative agencies on such
policies and compliance and issue reports detailing the
results of such audits;
``(3) recommend policy changes to Congress and the
President to improve the administration of section 552,
including whether agencies are receiving and expending
adequate funds to ensure compliance with that section; and
``(4) offer mediation services between persons making
requests under section 552 and administrative agencies as a
non-exclusive alternative to litigation and, at the
discretion of the Office, issue advisory opinions if
mediation has not resolved the dispute.''.
(b) Technical and Conforming Amendment.--The table of
sections for chapter 5 of title 5, United States Code, is
amended by striking the item relating to section 596 and
inserting the following:
``596. Office of Government Information Services.
``597. Authorization of appropriations.''.
(c) Effective Date.--The amendments made by this section
shall take effect 1 year after the date of enactment of this
Act.
SEC. 12. ACCESSIBILITY OF CRITICAL INFRASTRUCTURE
INFORMATION.
(a) In General.--Not later than January 1 of each of the 3
years following the date of the enactment of this Act, the
Comptroller General of the United States shall submit to
Congress a report on the implementation and use of section
214 of the Homeland Security Act of 2002 (6 U.S.C. 133),
including--
(1) the number of persons in the private sector, and the
number of State and local agencies, that voluntarily
furnished records to the Department under this section;
(2) the number of requests for access to records granted or
denied under this section;
(3) such recommendations as the Comptroller General
considers appropriate regarding improvements in the
collection and analysis of sensitive information held by
persons in the private sector, or by State and local
agencies, relating to vulnerabilities of and threats to
critical infrastructure, including the response to such
vulnerabilities and threats; and
(4) an examination of whether the nondisclosure of such
information has led to the increased protection of critical
infrastructure.
(b) Form.--The report shall be submitted in unclassified
form, but may include a classified annex.
SEC. 13. REPORT ON PERSONNEL POLICIES RELATED TO FOIA.
Not later than 1 year after the date of enactment of this
Act, the Office of Personnel Management shall submit to
Congress a report that examines--
(1) whether changes to executive branch personnel policies
could be made that would--
(A) provide greater encouragement to all Federal employees
to fulfill their duties under section 552 of title 5, United
States Code; and
(B) enhance the stature of officials administering that
section within the executive branch;
(2) whether performance of compliance with section 552 of
title 5, United States Code, should be included as a factor
in personnel performance evaluations for any or all
categories of Federal employees and officers;
(3) whether an employment classification series specific to
compliance with sections 552 and 552a of title 5, United
States Code, should be established;
(4) whether the highest level officials in particular
agencies administering such sections should be paid at a rate
of pay equal to or greater than a particular minimum rate ;
and
(5) whether other changes to personnel policies can be made
to ensure that there is a clear career advancement track for
individuals interested in devoting themselves to a career in
compliance with such sections; and
(6) whether the executive branch should require any or all
categories of Federal employees to undertake awareness
training of such sections.
Mr. LEAHY. Mr. President, I am pleased to join as a partner with the
Senator from Texas in introducing the OPEN Government Act of 2005. I
have devoted a considerable portion of my work in the Senate to
improving Government oversight, Government openness and citizen
``right-to-know'' laws to make Government work better for the American
people, and at times it has been a lonely battle. Finding dedicated
allies on the other side of the aisle has proven difficult. That is why
I am delighted to have a partner in John Cornyn. Senator Cornyn has a
distinguished record of supporting open government dating back to his
days as Attorney General of Texas. In fact,
[[Page S1526]]
some of the provisions in the bill we introduce today are modeled after
sections of the Texas Public Information Act.
I believe that we both see this effort as the first of many
bipartisan steps we can take together in the new Congress. Senator
Cornyn and I began to forge a partnership on improving public access to
Government information well over a year ago when, during the 108th
Congress, we worked with several other Senators and with the Library of
Congress to improve the publicly accessible congressional information
website, THOMAS. He and I also cooperated last fall in a successful
effort to ensure that ``government information,'' including the
application of the Freedom of Information Act, FOIA, be subject to the
jurisdiction of both the Judiciary Committee and the newly constituted
Homeland Security and Governmental Affairs Committee.
The bill we introduce today is a collection of commonsense
modifications designed to update FOIA and improve the timely processing
of FOIA requests by Federal agencies. It was drafted after a long and
thoughtful process of consultation with individuals and organizations
that rely on FOIA to obtain information and share it with the public,
including the news media, librarians, and public interest organizations
representing all facets of the political spectrum.
The OPEN Government Act reaffirms the fundamental premise of FOIA:
Government information belongs to all Americans and should be subject
to a presumption in favor of disclosure. James Madison said that ``a
popular government, without popular information, or the means of
acquiring it, is but a prologue to a farce or tragedy or perhaps
both.'' His caution rings just as true today. The public's right to
know what its government is doing promotes accountability, imbues trust
and contributes to our system of checks and balances.
First enacted in 1966, FOIA represents the foundation of our modern
open Government laws. In 1996, I was the principal author of the
Electronic Freedom of Information Act Amendments, which updated FOIA
for the internet age. The bill we introduce today is the next step: a
practical set of important modifications that respond to common
complaints and limitations in the current system that we have heard,
whether from frequent FOIA requestors, such as representatives of the
press, or individual citizens who may only occasionally rely on FOIA,
but who nonetheless deserve timely and comprehensive responses to their
requests.
Chief among the problems with FOIA implementation is agency delay.
Following the successful model of the Texas Public Information Act,
this legislation imposes penalties on agencies that miss statutory
deadlines to release documents and strengthens reporting requirements
on FOIA compliance.
The OPEN Government Act responds to some confusion over the
applicability of FOIA to agency records that are held by outside
private contractors. It does this by clarifying that such records are
subject to FOIA wherever they are located.
Our legislation establishes an ombudsman to mediate FOIA disputes
between agencies and requestors, a step that many FOIA requestors
believe will help to ameliorate the need for FOIA litigation in the
Federal courts. We hope that this mechanism will work to the benefit of
all parties. However, where mediation fails to resolve disputes, our
bill preserves the rights of requestors to litigate under FOIA.
Our bill responds to recent Federal jurisprudence by explicitly
providing for recovery of attorneys' fees under the so-called
``catalyst theory.'' That is, where a FOIA lawsuit was the catalyst for
an agency determination to release documents prior to a court's entry
of judgment, the plaintiff may recover attorneys' fees.
Finally, the bill requires reports on a controversial law, the
Critical Infrastructure Information Act, enacted as part of the
Homeland Security Act of 2002, and it protects fee-waiver status for
journalists under FOIA.
Letters of support for the OPEN Government Act have been submitted by
the 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, and the Society of
Environmental Journalists.
The Freedom of Information Act is an invigorating mechanism that
helps keep our government more open and effective and closer to the
American people. FOIA has had serious setbacks in recent years that
endanger its effectiveness. This legislation is a rare chance to
advance the public's right to know.
I thank my colleague, the Senator from Texas, for the time and effort
he has devoted to protecting the public's right to know, and I urge all
members of the Senate to join us in supporting this important
legislation.
______
By Mr. FEINGOLD:
S. 395. A bill to amend the Buy American Act to increase the
requirement for American-made content, and to tighten the waiver
provisions, and for other purposes; to the Committee on Homeland
Security and Governmental Affairs.
Mr. FEINGOLD. 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.
[[Page S1527]]
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
[[Page S1528]]
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.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 395
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Buy American Improvement Act
of 2005''.
SEC. 2. REQUIREMENTS FOR WAIVERS.
(a) In General.--Section 2 of the Buy American Act (41
U.S.C. 10a) is amended--
(1) by striking ``Notwithstanding'' and inserting the
following:
``(a) In General.--Notwithstanding''; and
(2) by adding at the end the following:
``(b) Special Rules.--The following rules shall apply in
carrying out the provisions of subsection (a):
``(1) Public interest waiver.--A determination that it is
not in the public interest to enter into a contract in
accordance with this Act may not be made after a notice of
solicitation of offers for the contract is published in
accordance with section 18 of the Office of Federal
Procurement Policy Act (41 U.S.C. 416) and section 8(e) of
the Small Business Act (15 U.S.C. 637(e)).
``(2) Domestic bidder.--A Federal agency entering into a
contract shall give preference to a company submitting an
offer on the contract that manufactures in the United States
the article, material, or supply for which the offer is
solicited, if--
``(A) that company's offer is substantially the same as an
offer made by a company that does not manufacture the
article, material, or supply in the United States; or
``(B) that company is the only company that manufactures in
the United States the article, material, or supply for which
the offer is solicited.
``(3) Use outside the united states.--
``(A) In general.--Subsection (a) shall apply without
regard to whether the articles, materials, or supplies to be
acquired are for use outside the United States if the
articles, materials, or supplies are not needed on an urgent
basis or if they are acquired on a regular basis.
``(B) Cost analysis.--In any case where the articles,
materials, or supplies are to be acquired for use outside the
United States and are not needed on an urgent basis, before
entering into a contract an analysis shall be made of the
difference in the cost for acquiring the articles, materials,
or supplies from a company manufacturing the articles,
materials, or supplies in the United States (including the
cost of shipping) and the cost for acquiring the articles,
materials, or supplies from a company manufacturing the
articles, materials, or supplies outside the United States
(including the cost of shipping).
``(4) Domestic availability.--The head of a Federal agency
may not make a determination under subsection (a) that an
article, material, or supply is not mined, produced, or
manufactured, as the case may be, in the United States in
sufficient and reasonably available commercial quantities and
of satisfactory quality, unless the head of the agency has
conducted a study and, on the basis of such study, determined
that--
``(A) domestic production cannot be initiated to meet the
procurement needs; and
``(B) a comparable article, material, or supply is not
available from a company in the United States.
``(c) Reports.--
``(1) In general.--Not later than 180 days after the end of
each fiscal year, the head of each Federal agency shall
submit to Congress a report on the acquisitions that were
made of articles, materials, or supplies by the agency in
that fiscal year from entities that manufacture the articles,
materials, or supplies outside the United States.
``(2) Content of report.--The report for a fiscal year
under paragraph (1) shall separately indicate the following
information:
``(A) The dollar value of any articles, materials, or
supplies that were manufactured outside the United States.
``(B) An itemized list of all waivers granted with respect
to such articles, materials, or supplies under this Act.
``(C) A summary of--
``(i) the total procurement funds expended on articles,
materials, and supplies manufactured inside the United
States; and
``(ii) the total procurement funds expended on articles,
materials, and supplies manufactured outside the United
States.
``(3) Public availability.--The head of each Federal agency
submitting a report under paragraph (1) shall make the report
publicly available by posting on an Internet website.''.
(b) Definitions.--Section 1 of the Buy American Act (41
U.S.C. 10c) is amended--
(1) by striking subsection (c) and inserting the following:
``(c) Federal Agency.--The term `Federal agency' means any
executive agency (as defined in section 4(1) of the Federal
Procurement Policy Act (41 U.S.C. 403(1))) or any
establishment in the legislative or judicial branch of the
Government.''; and
(2) by adding at the end the following:
``(d) Substantially All.--Articles, materials, or supplies
shall be treated as made substantially all from articles,
materials, or supplies mined, produced, or manufactured, as
the case may be, in the United States, if the cost of the
domestic components of such articles, materials, or supplies
exceeds 75 percent.''.
(c) Conforming Amendments.--
(1) Section 2 of the Buy American Act (41 U.S.C. 10a) is
amended by striking ``department or independent
establishment'' and inserting ``Federal agency''.
(2) Section 3 of such Act (41 U.S.C. 10b) is amended--
(A) by striking ``department or independent establishment''
in subsection (a), and inserting ``Federal agency''; and
(B) by striking ``department, bureau, agency, or
independent establishment'' in subsection (b) and inserting
``Federal agency''.
(3) Section 633 of the National Military Establishment
Appropriations Act, 1950 (41 U.S.C. 10d) is amended by
striking ``department or independent establishment'' and
inserting ``Federal agency''.
SEC. 3. GAO REPORT AND RECOMMENDATIONS.
(a) Scope of Waivers.--Not later than 6 months after the
date of enactment of this Act, the Comptroller General of the
United States shall report to Congress recommendations for
determining, for purposes of applying the waiver provision of
section 2(a) of the Buy American Act--
(1) unreasonable cost; and
(2) inconsistent with the public interest.
The report shall include recommendations for a statutory
definition of unreasonable cost and standards for determining
inconsistency with the public interest.
(b) Waiver Procedures.--The report described in subsection
(a) shall also include recommendations for establishing
procedures for applying the waiver provisions of the Buy
American Act that can be consistently applied.
SEC. 4. DUAL-USE TECHNOLOGIES.
The head of a Federal agency (as defined in section 1(c) of
the Buy American Act (as amended by section 2) may not enter
into a contract, nor permit a subcontract under a contract of
the Federal agency, with a foreign entity that involves
giving the foreign entity plans, manuals, or other
information pertaining to a dual-use item on the Commerce
Control List or that would facilitate the manufacture of a
dual-use item on the Commerce Control List unless approval
for providing such plans, manuals, or information has been
obtained in accordance with the provisions of the Export
Administration Act of 1979 (50 U.S.C. App. 2401 et seq.) and
the Export Administration Regulations (15 C.F.R. part 730 et
seq.).
______
By Mr. CRAIG (for himself, Mr. Baucus, Mr. Alexander, Mr.
Bunning, Mr. Burns, Mr. Chambliss, Mr. Coburn, Ms. Collins, Mr.
Cornyn, Mr. Crapo, Mr. Domenici, Mr. Ensign, Mr. Enzi, Mrs.
Hutchison, Mr. Inhofe, Mr. Isakson, Mr. Johnson, Mr. Kyl, Mrs.
Lincoln, Ms. Murkowski, Mr. Nelson of Nebraska, Mr. Santorum,
Mr. Sessions, Ms. Snowe, Mr. Stevens, Mr. Thomas, Mr. Thune,
and Mr. Sununu):
[[Page S1529]]
S. 397. A bill to prohibit civil liability actions from being brought
or continued against manufacturers, distributors, dealers, or importers
of firearms or ammunition for damages, injunctive or other relief
resulting from the misuse of their products by others; read the first
time.
Mr. CRAIG. Mr. President, I am pleased to join with Senator Baucus in
introducing the Protection of Lawful Commerce in Arms Act.
This bill addresses the abuse of our Nation's courts through
predatory lawsuits against the U.S. firearms industry--suits attempting
to force law-abiding businesses to pay far criminal acts by individuals
beyond their control.
It's important for our colleagues to understand that the lawsuits
we're talking about are not brought by victims seeing relief for same
wrongs done to them by the firearms industry. Instead, they are part of
a politically inspired initiative trying to force social goals through
an end-run around the Congress and State legislatures.
These lawsuits are based an the notion that even though a business
complies with all laws and sells a legitimate product, it should be
held responsible for the misuse or illegal use of the firearm by a
criminal. This isn't a legal theory--it's just the latest twist in the
gun controllers' notion that it's the gun, and not the criminal, that
causes crime.
The truth is that there are millions of firearms in this country
today, only a tiny fraction of which have ever been used in the
commission of a crime. The truth is that again and again, law-abiding
firearm owners are using their guns, often without even firing a shot,
to defend life and property. The truth is that the intent of the user,
not the gun, determines whether that gun will be used in a crime. The
trend of predatory litigation targeting the firearms industry not only
defies common sense and concepts of fundamental fairness, but it would
do nothing to curb criminal gun violence. The cost of these lawsuits
threatens to drive a critical industry out of business, losing
thousands of good-paying jobs in the process and jeopardizing
Americans' constitutionally protected access to firearms for self
defense and other lawful uses.
The Protection of Lawful Commerce in Arms Act would stop these
abusive lawsuits. However, it would not insulate the firearms industry
from all lawsuits or deprive legitimate victims of their day in court.
Indeed, it specifically provides that actions based on the wrongful
conduct of those involved in the business of manufacturing and selling
firearms would not be affected by this legislation. The bill is solely
directed to stopping abusive, politically driven litigation against
law-abiding individuals for the misbehavior of criminals over whom they
had no control.
This bill is virtually identical to legislation introduced and
debated to length in the Senate during the last Congress. As my
colleagues will recall, the addition of two unrelated poison pill
amendments doomed final passage of that bill; however, it is worth
noting that all amendments to the actual substance of that measure were
defeated.
The need for this legislation is every bit as serious today as it was
in the last Congress. I am proud that a number of our colleagues on
both sides of the aisle asked to sponsor this bill before it was even
introduced: Mr. Alexander, Mr. Bunning, Mr. Burns, Mr. Chambliss, Mr.
Coburn, Ms. Collins, Mr. Cornyn, Mr. Crapo, Mr. Domenici, Mr. Ensign,
Mr. Enzi, Mrs. Hutchison, Mr. Inhofe, Mr. Isakson, Mr. Johnson, Mr.
Kyl, Mrs. Lincoln, Ms. Murkowski, Mr. Nelson of Nebraska, Mr. Santorum,
Mr. Sessions, Ms. Snowe, Mr. Stevens, Mr. Thomas, and Mr. Thune. I
thank these original cosponsors for their support.
The courts of our Nation are supposed to be forums for resolving
controversies between citizens and providing relief where warranted,
not a mechanism for achieving political ends that are rejected by the
people's representatives in Congress and the State legislatures. I hope
all our colleagues will join us in taking a measured, principled stand
against this abusive litigation by supporting the Protection of Lawful
Commerce in Arms Act.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 397
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Protection of Lawful
Commerce in Arms Act''.
SEC. 2. FINDINGS; PURPOSES.
(a) Findings.--Congress finds the following:
(1) The Second Amendment to the United States Constitution
provides that the right of the people to keep and bear arms
shall not be infringed.
(2) The Second Amendment to the United States Constitution
protects the rights of individuals, including those who are
not members of a militia or engaged in military service or
training, to keep and bear arms.
(3) Lawsuits have been commenced against manufacturers,
distributors, dealers, and importers of firearms that operate
as designed and intended, which seek money damages and other
relief for the harm caused by the misuse of firearms by third
parties, including criminals.
(4) The manufacture, importation, possession, sale, and use
of firearms and ammunition in the United States are heavily
regulated by Federal, State, and local laws. Such Federal
laws include the Gun Control Act of 1968, the National
Firearms Act, and the Arms Export Control Act.
(5) Businesses in the United States that are engaged in
interstate and foreign commerce through the lawful design,
manufacture, marketing, distribution, importation, or sale to
the public of firearms or ammunition products that have been
shipped or transported in interstate or foreign commerce are
not, and should not, be liable for the harm caused by those
who criminally or unlawfully misuse firearm products or
ammunition products that function as designed and intended.
(6) The possibility of imposing liability on an entire
industry for harm that is solely caused by others is an abuse
of the legal system, erodes public confidence in our Nation's
laws, threatens the diminution of a basic constitutional
right and civil liberty, invites the disassembly and
destabilization of other industries and economic sectors
lawfully competing in the free enterprise system of the
United States, and constitutes an unreasonable burden on
interstate and foreign commerce of the United States.
(7) The liability actions commenced or contemplated by the
Federal Government, States, municipalities, and private
interest groups and others are based on theories without
foundation in hundreds of years of the common law and
jurisprudence of the United States and do not represent a
bona fide expansion of the common law. The possible
sustaining of these actions by a maverick judicial officer or
petit jury would expand civil liability in a manner never
contemplated by the framers of the Constitution, by Congress,
or by the legislatures of the several States. Such an
expansion of liability would constitute a deprivation of the
rights, privileges, and immunities guaranteed to a citizen of
the United States under the Fourteenth Amendment to the
United States Constitution.
(8) The liability actions commenced or contemplated by the
Federal Government, States, municipalities, private interest
groups and others attempt to use the judicial branch to
circumvent the Legislative branch of government to regulate
interstate and foreign commerce through judgments and
judicial decrees thereby threatening the Separation of Powers
doctrine and weakening and undermining important principles
of federalism, State sovereignty and comity between the
sister States.
(b) Purposes.--The purposes of this Act are as follows:
(1) To prohibit causes of action against manufacturers,
distributors, dealers, and importers of firearms or
ammunition products, and their trade associations, for the
harm solely caused by the criminal or unlawful misuse of
firearm products or ammunition products by others when the
product functioned as designed and intended.
(2) To preserve a citizen's access to a supply of firearms
and ammunition for all lawful purposes, including hunting,
self-defense, collecting, and competitive or recreational
shooting.
(3) To guarantee a citizen's rights, privileges, and
immunities, as applied to the States, under the Fourteenth
Amendment to the United States Constitution, pursuant to
section 5 of that Amendment.
(4) To prevent the use of such lawsuits to impose
unreasonable burdens on interstate and foreign commerce.
(5) To protect the right, under the First Amendment to the
Constitution, of manufacturers, distributors, dealers, and
importers of firearms or ammunition products, and trade
associations, to speak freely, to assemble peaceably, and to
petition the Government for a redress of their grievances.
(6) To preserve and protect the Separation of Powers
doctrine and important principles of federalism, State
sovereignty and comity between sister States.
(7) To exercise congressional power under art. IV, section
1 (the Full Faith and Credit Clause) of the United States
Constitution.
[[Page S1530]]
SEC. 3. PROHIBITION ON BRINGING OF QUALIFIED CIVIL LIABILITY
ACTIONS IN FEDERAL OR STATE COURT.
(a) In General.--A qualified civil liability action may not
be brought in any Federal or State court.
(b) Dismissal of Pending Actions.--A qualified civil
liability action that is pending on the date of enactment of
this Act shall be immediately dismissed by the court in which
the action was brought or is currently pending.
SEC. 4. DEFINITIONS.
In this Act:
(1) Engaged in the business.--The term ``engaged in the
business'' has the meaning given that term in section
921(a)(21) of title 18, United States Code, and, as applied
to a seller of ammunition, means a person who devotes, time,
attention, and labor to the sale of ammunition as a regular
course of trade or business with the principal objective of
livelihood and profit through the sale or distribution of
ammunition.
(2) Manufacturer.--The term ``manufacturer'' means, with
respect to a qualified product, a person who is engaged in
the business of manufacturing the product in interstate or
foreign commerce and who is licensed to engage in business as
such a manufacturer under chapter 44 of title 18, United
States Code.
(3) Person.--The term ``person'' means any individual,
corporation, company, association, firm, partnership,
society, joint stock company, or any other entity, including
any governmental entity.
(4) Qualified product.--The term ``qualified product''
means a firearm (as defined in subparagraph (A) or (B) of
section 921(a)(3) of title 18, United States Code), including
any antique firearm (as defined in section 921(a)(16) of such
title), or ammunition (as defined in section 921(a)(17)(A) of
such title), or a component part of a firearm or ammunition,
that has been shipped or transported in interstate or foreign
commerce.
(5) Qualified civil liability action.--
(A) In general.--The term ``qualified civil liability
action'' means a civil action or proceeding or an
administrative proceeding brought by any person against a
manufacturer or seller of a qualified product, or a trade
association, for damages, punitive damages, injunctive or
declaratory relief, abatement, restitution, fines, or
penalties, or other relief'' resulting from the criminal or
unlawful misuse of a qualified product by the person or a
third party, but shall not include--
(i) an action brought against a transferor convicted under
section 924(h) of title 18, United States Code, or a
comparable or identical State felony law, by a party directly
harmed by the conduct of which the transferee is so
convicted;
(ii) an action brought against a seller for negligent
entrustment or negligence per se;
(iii) an action in which a manufacturer or seller of a
qualified product knowingly violated a State or Federal
statute applicable to the sale or marketing of the product,
and the violation was a proximate cause of the harm for which
relief is sought, including--
(I) any case in which the manufacturer or seller knowingly
made any false entry in, or failed to make appropriate entry
in, any record required to be kept under Federal or State law
with respect to the qualified product, or aided, abetted, or
conspired with any person in making any false or fictitious
oral or written statement with respect to any fact material
to the lawfulness of the sale or other disposition of a
qualified product; or
(II) any case in which the manufacturer or seller aided,
abetted, or conspired with any other person to sell or
otherwise dispose of a qualified product, knowing, or having
reasonable cause to believe, that the actual buyer of the
qualified product was prohibited from possessing or receiving
a firearm or ammunition under subsection (g) or (n) of
section 922 of title 18, United States Code;
(iv) an action for breach of contract or warranty in
connection with the purchase of the product; or
(v) an action for death, physical injuries or property
damage resulting directly from a defect in design or
manufacture of the product, when used as intended or in a
reasonably foreseeable manner, except that where the
discharge of the product was caused by a volitional act that
constituted a criminal offense then such act shall be
considered the sole proximate cause of any resulting death,
personal injuries or property damage.
(B) Negligent entrustment.--As used in subparagraph
(A)(ii), the term `negligent entrustment' means the supplying
of a qualified product by a seller for use by another person
when the seller knows, or reasonably should know, the person
to whom the product is supplied is likely to, and does, use
the product in a manner involving unreasonable risk of
physical injury to the person or others.
(C) Rule of construction.--The exceptions enumerated under
clauses (i) through (v) of subparagraph (A) shall be
construed so as not to be in conflict, and no provision of
this Act shall be construed to create a public or private
cause of action or remedy.
(6) Seller.--The term ``seller'' means, with respect to a
qualified product--
(A) an importer (as defined in section 921(a)(9) of title
18, United States Code) who is engaged in the business as
such an importer in interstate or foreign commerce and who is
licensed to engage in business as such an importer under
chapter 44 of title 18, United States Code;
(B) a dealer (as defined in section 921(a)(11) of title 18,
United States Code) who is engaged in the business as such a
dealer in interstate or foreign commerce and who is licensed
to engage in business as such a dealer under chapter 44 of
title 18, United States Code; or
(C) a person engaged in the business of selling ammunition
(as defined in section 921(a)(17)(A) of title 18, United
States Code) in interstate or foreign commerce at the
wholesale or retail level.
(7) State.--The term ``State'' includes each of the several
States of the United States, the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam,
American Samoa, and the Commonwealth of the Northern Mariana
Islands, and any other territory or possession of the United
States, and any political subdivision of any such place.
(8) Trade association.--The term ``trade association''
means--
(A) any corporation, unincorporated association,
federation, business league, professional or business
organization not organized or operated for profit and no part
of the net earnings of which inures to the benefit of any
private shareholder or individual;
(B) that is an organization described in section 501(c)(6)
of the Internal Revenue Code of 1986 and exempt from tax
under section 501(a) of such Code; and
(C) 2 or more members of which are manufacturers or sellers
of a qualified product.
(9) Unlawful misuse.--The term ``unlawful misuse'' means
conduct that violates a statute, ordinance, or regulation as
it relates to the use of a qualified product.
______
By Mr. SANTORUM (for himself and Mr. Bayh):
S. 398. A bill to amend the Internal Revenue Code of 1986 to expand
the expensing of environmental remediation costs; to the Committee on
Finance.
Mr. SANTORUM. Mr. President, I am pleased to introduce with my
colleague from Indiana, Senator Bayh, important legislation to
encourage the cleanup of contaminated sites commonly known as
``brownfields.'' I urge all my colleagues to join Senator Bayh and me
as supporters of this legislation and ask that they actively work with
us towards its enactment.
The United States Environmental Protection Agency, EPA, defines
brownfields as ``abandoned, idled, or under used industrial commercial
sites where expansion or redevelopment is complicated by real or
perceived environmental contamination that can add cost, time, or
uncertainness to redevelopment projects.''
Brownfields are not unique to my State of Pennsylvania, nor are they
to Senator Bayh's State of Indiana. In every State in the Nation, there
are areas blighted by run down, abandoned properties and unsightly
vacant lots. They are the shut down manufacturing facilities, deserted
warehouses and gas stations that are all too familiar to us. On these
properties once stood vibrant and productive enterprises, but changing
times and events have drained their vitality and they are now in
desperate need of revitalization and redevelopment. Compounding the
problem is that over the years, the activities on these sites have left
the soil and water tables contaminated with environmental pollutants.
The negative social and economic effects that these sites cause on
their surrounding communities are significant. There are serious
financial impacts not only to the market values of the brownfield
properties themselves, but also to property values in the surrounding
neighborhoods. As middle class citizens are working to gain assets and
potentially be able to borrow against, or even sell their homes in the
future, property values become a very serious issue. A reduction of
property values in brownfield neighborhoods hits hardest the families
who can least afford it.
Brownfields have other serious repercussions, extending far beyond
the pocketbook. The unsightliness of brownfields can lead to the
characterization of entire neighborhoods as run-down and undesirable.
The once vibrant spirit of these centrally located and thriving urban
areas can be dampened as these eyesores drag down residents' morale and
sense of connection with their community.
The U.S. Conference of Mayors and the Government Accountability
Office estimate that there are over 400,000 brownfield sites across the
country. According to a recent U.S. Conference of Mayors survey of 187
cities throughout the nation, redevelopment of their existing
brownfields would bring additional tax revenues of up to $2 billion
annually and could create hundreds of thousands of jobs.
[[Page S1531]]
Many brownfields are located in prime business locations near
critical infrastructure, including transportation, and close to an
already productive workforce. Putting these sites back into use will
generate good paying jobs and affordable housing in areas where they
are most needed. Rehabilitating and reusing these sites also serves to
help prevent urban sprawl. We should encourage the cleanup and use of
these brownfield sites rather than abandon them and instead always look
to develop at new locations. A powerful example from my State of a
successful brownfield revitalization effort and how it can have
substantial and positive effects on a community is the city of Chester.
In the midst of a major revitalization, Chester is redeveloping its
blighted and vacant waterfront district, including the former PECO
power station. The city is striving to turn a former industrial site
into a business center. Chester will be able to create new office
space, and by working with a private developer Chester has received an
initial commitment to move 2,000 jobs into the area. This initiative
will help bring more business and infrastructure back to the community,
adding to the area's prosperity and making Chester an even safer and
more pleasant place to live.
Unfortunately, a big reason that so many brownfield properties are
languishing in a state of decay and disrepair is the substantial clean
up costs associated with them and the unfavorable tax treatment of
those costs.
As part of the Community Renewal and Revitalization Act of 2000,
Congress enacted section 198 of the Internal Revenue Code, which
allowed cleanup costs to be expensed in the year they were incurred.
Prior to that, these costs had to be capitalized to the land,
postponing any recovery of these costs for tax purposes until the
property was sold.
This expedited writeoff of clean up expenses helps a redeveloper
manage the cost of rehabilitating existing properties which typically
is much more expensive than developing new sites. Brownfield cleanup
costs can be an imposing obstacle to redevelopment. While the price tag
varies with each site, it is not unreasonable for the cleanup of a
major site to cost between $500,000 and $1 million.
We in the Senate, and our colleagues in the House, were wise to enact
section 198 and renew it for 2 years through the Working Families Tax
Relief Act of 2004. That was a start, but more needs to be done in this
area.
The bill my colleague and I are introducing today has three
provisions. First, it makes section 198 a permanent provision in the
Tax Code. Second, it broadens the definition of ``hazardous
substances'' in section 198 to include petroleum. Finally, it repeals
the provision in the law requiring the recapture of the section 198
deduction when the property is sold.
The tax policy of allowing the expensing of clean up costs should be
a permanent fixture in the Tax Code. Brownfields are a long-term
problem and this solution will allow us to complete this important
task.
Furthermore, a shortcoming of the law passed in 2000 was the absence
of petroleum as a contaminant that allowed a site to qualify as a
brownfield under section 198. A large percentage of brownfields across
the country are contaminated with petroleum. Extending the law to cover
petroleum contamination makes much more sense and the law much more
effective.
Finally, the provision in section 198 that requires a taxpayer who
uses the clean up deduction to pay income tax on that amount when he or
she sells the property is illogical. This sends a message to
developers, that if they undertake the worthy endeavor of remediation
of brownfield sites they will be subjected to substantial tax penalties
for doing so. This policy is counterproductive to the efforts we are
trying to encourage and it should be repealed.
The benefits of brownfields cleanup are obvious. Remediation of these
sites revitalizes our neighborhoods and communities, and I urge my
colleagues to support this legislation.
______
By Mr. COLEMAN (for himself and Mrs. Feinstein):
S. 399. A bill to amend the Federal Food, Drug, and Cosmetic Act with
respect to the sale of prescription drugs through the Internet, and for
other purposes; to the Committee on Health, Education, Labor, and
Pensions.
______
By Mr. COLEMAN:
S. 400. A bill to prevent the illegal importation of controlled
substances; to the Committee on the Judiciary.
Mr. COLEMAN. 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
[[Page S1532]]
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.
There being no objection, the text of the bills was ordered to be
printed in the Record, as follows:
S. 399
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Internet Pharmacy Consumer
Protection Act'' or the ``Ryan Haight Act''.
SEC. 2. INTERNET SALES OF PRESCRIPTION DRUGS.
(a) In General.--Chapter 5 of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 351 et seq.) is amended by inserting
after section 503A the following section:
``SEC. 503B. INTERNET SALES OF PRESCRIPTION DRUGS.
``(a) Requirements Regarding Information on Internet
Site.--
``(1) In general.--A person may not dispense a prescription
drug pursuant to a sale of the drug by such person if--
``(A) the purchaser of the drug submitted the purchase
order for the drug, or conducted any other part of the sales
transaction for the drug, through an Internet site;
``(B) the person dispenses the drug to the purchaser by
mailing or shipping the drug to the purchaser; and
``(C) such site, or any other Internet site used by such
person for purposes of sales of a prescription drug, fails to
meet each of the requirements specified in paragraph (2),
other than a site or pages on a site that--
``(i) are not intended to be accessed by purchasers or
prospective purchasers; or
``(ii) provide an Internet information location tool within
the meaning of section 231(e)(5) of the Communications Act of
1934 (47 U.S.C. 231(e)(5)).
``(2) Requirements.--With respect to an Internet site, the
requirements referred to in subparagraph (C) of paragraph (1)
for a person to whom such paragraph applies are as follows:
``(A) Each page of the site shall include either the
following information or a link to a page that provides the
following information:
``(i) The name of such person.
``(ii) Each State in which the person is authorized by law
to dispense prescription drugs.
``(iii) The address and telephone number of each place of
business of the person with respect to sales of prescription
drugs through the Internet, other than a place of business
that does not mail or ship prescription drugs to purchasers.
``(iv) The name of each individual who serves as a
pharmacist for prescription drugs that are mailed or shipped
pursuant to the site, and each State in which the individual
is authorized by law to dispense prescription drugs.
``(v) If the person provides for medical consultations
through the site for purposes of providing prescriptions, the
name of each individual who provides such consultations; each
State in which the individual is licensed or otherwise
authorized by law to provide such consultations or practice
medicine; and the type or types of health professions for
which the individual holds such licenses or other
authorizations.
``(B) A link to which paragraph (1) applies shall be
displayed in a clear and prominent place and manner, and
shall include in the caption for the link the words
`licensing and contact information'.
``(b) Internet Sales Without Appropriate Medical
Relationships.--
``(1) In general.--Except as provided in paragraph (2), a
person may not dispense a prescription drug, or sell such a
drug, if--
[[Page S1533]]
``(A) for purposes of such dispensing or sale, the
purchaser communicated with the person through the Internet;
``(B) the patient for whom the drug was dispensed or
purchased did not, when such communications began, have a
prescription for the drug that is valid in the United States;
``(C) pursuant to such communications, the person provided
for the involvement of a practitioner, or an individual
represented by the person as a practitioner, and the
practitioner or such individual issued a prescription for the
drug that was purchased;
``(D) the person knew, or had reason to know, that the
practitioner or the individual referred to in subparagraph
(C) did not, when issuing the prescription, have a qualifying
medical relationship with the patient; and
``(E) the person received payment for the dispensing or
sale of the drug.
For purposes of subparagraph (E), payment is received if
money or other valuable consideration is received.
``(2) Exceptions.--Paragraph (1) does not apply to--
``(A) the dispensing or selling of a prescription drug
pursuant to telemedicine practices sponsored by--
``(i) a hospital that has in effect a provider agreement
under title XVIII of the Social Security Act (relating to the
Medicare program); or
``(ii) a group practice that has not fewer than 100
physicians who have in effect provider agreements under such
title; or
``(B) the dispensing or selling of a prescription drug
pursuant to practices that promote the public health, as
determined by the Secretary by regulation.
``(3) Qualifying medical relationship.--
``(A) In general.--With respect to issuing a prescription
for a drug for a patient, a practitioner has a qualifying
medical relationship with the patient for purposes of this
section if--
``(i) at least one in-person medical evaluation of the
patient has been conducted by the practitioner; or
``(ii) the practitioner conducts a medical evaluation of
the patient as a covering practitioner.
``(B) In-person medical evaluation.--A medical evaluation
by a practitioner is an in-person medical evaluation for
purposes of this section if the practitioner is in the
physical presence of the patient as part of conducting the
evaluation, without regard to whether portions of the
evaluation are conducted by other health professionals.
``(C) Covering practitioner.--With respect to a patient, a
practitioner is a covering practitioner for purposes of this
section if the practitioner conducts a medical evaluation of
the patient at the request of a practitioner who has
conducted at least one in-person medical evaluation of the
patient and is temporarily unavailable to conduct the
evaluation of the patient. A practitioner is a covering
practitioner without regard to whether the practitioner has
conducted any in-person medical evaluation of the patient
involved.
``(4) Rules of construction.--
``(A) Individuals represented as practitioners.--A person
who is not a practitioner (as defined in subsection (d)(1))
lacks legal capacity under this section to have a qualifying
medical relationship with any patient.
``(B) Standard practice of pharmacy.--Paragraph (1) may not
be construed as prohibiting any conduct that is a standard
practice in the practice of pharmacy.
``(C) Applicability of requirements.--Paragraph (3) may not
be construed as having any applicability beyond this section,
and does not affect any State law, or interpretation of State
law, concerning the practice of medicine.
``(c) Actions by States.--
``(1) In general.--Whenever an attorney general of any
State has reason to believe that the interests of the
residents of that State have been or are being threatened or
adversely affected because any person has engaged or is
engaging in a pattern or practice that violates section
301(l), the State may bring a civil action on behalf of its
residents in an appropriate district court of the United
States to enjoin such practice, to enforce compliance with
such section (including a nationwide injunction), to obtain
damages, restitution, or other compensation on behalf of
residents of such State, to obtain reasonable attorneys fees
and costs if the State prevails in the civil action, or to
obtain such further and other relief as the court may deem
appropriate.
``(2) Notice.--The State shall serve prior written notice
of any civil action under paragraph (1) or (5)(B) upon the
Secretary and provide the Secretary with a copy of its
complaint, except that if it is not feasible for the State to
provide such prior notice, the State shall serve such notice
immediately upon instituting such action. Upon receiving a
notice respecting a civil action, the Secretary shall have
the right--
``(A) to intervene in such action;
``(B) upon so intervening, to be heard on all matters
arising therein; and
``(C) to file petitions for appeal.
``(3) Construction.--For purposes of bringing any civil
action under paragraph (1), nothing in this chapter shall
prevent an attorney general of a State from exercising the
powers conferred on the attorney general by the laws of such
State to conduct investigations or to administer oaths or
affirmations or to compel the attendance of witnesses or the
production of documentary and other evidence.
``(4) Venue; service of process.--Any civil action brought
under paragraph (1) in a district court of the United States
may be brought in the district in which the defendant is
found, is an inhabitant, or transacts business or wherever
venue is proper under section 1391 of title 28, United States
Code. Process in such an action may be served in any district
in which the defendant is an inhabitant or in which the
defendant may be found.
``(5) Actions by other state officials.--
``(A) Nothing contained in this section shall prohibit an
authorized State official from proceeding in State court on
the basis of an alleged violation of any civil or criminal
statute of such State.
``(B) In addition to actions brought by an attorney general
of a State under paragraph (1), such an action may be brought
by officers of such State who are authorized by the State to
bring actions in such State on behalf of its residents.
``(d) General Definitions.--For purposes of this section:
``(1) The term `practitioner' means a practitioner referred
to in section 503(b)(1) with respect to issuing a written or
oral prescription.
``(2) The term `prescription drug' means a drug that is
subject to section 503(b)(1).
``(3) The term `qualifying medical relationship', with
respect to a practitioner and a patient, has the meaning
indicated for such term in subsection (b).
``(e) Internet-related Definitions.--
``(1) In general.--For purposes of this section:
``(A) The term `Internet' means collectively the myriad of
computer and telecommunications facilities, including
equipment and operating software, which comprise the
interconnected world-wide network of networks that employ the
transmission control protocol/internet protocol, or any
predecessor or successor protocols to such protocol, to
communicate information of all kinds by wire or radio.
``(B) The term `link', with respect to the Internet, means
one or more letters, words, numbers, symbols, or graphic
items that appear on a page of an Internet site for the
purpose of serving, when activated, as a method for executing
an electronic command--
``(i) to move from viewing one portion of a page on such
site to another portion of the page;
``(ii) to move from viewing one page on such site to
another page on such site; or
``(iii) to move from viewing a page on one Internet site to
a page on another Internet site.
``(C) The term `page', with respect to the Internet, means
a document or other file accessed at an Internet site.
``(D)(i) The terms `site' and `address', with respect to
the Internet, mean a specific location on the Internet that
is determined by Internet Protocol numbers. Such term
includes the domain name, if any.
``(ii) The term `domain name' means a method of
representing an Internet address without direct reference to
the Internet Protocol numbers for the address, including
methods that use designations such as `.com', `.edu', `.gov',
`.net', or `.org'.
``(iii) The term `Internet Protocol numbers' includes any
successor protocol for determining a specific location on the
Internet.
``(2) Authority of secretary.--The Secretary may by
regulation modify any definition under paragraph (1) to take
into account changes in technology.
``(f) Interactive Computer Service; Advertising.--No
provider of an interactive computer service, as defined in
section 230(f)(2) of the Communications Act of 1934 (47
U.S.C. 230(f)(2)), or of advertising services shall be liable
under this section for dispensing or selling prescription
drugs in violation of this section on account of another
person's selling or dispensing such drugs, provided that the
provider of the interactive computer service or of
advertising services does not own or exercise corporate
control over such person.''.
(b) Inclusion as Prohibited Act.--Section 301 of the
Federal Food, Drug, and Cosmetic Act (21 U.S.C. 331) is
amended by inserting after paragraph (k) the following:
``(l) The dispensing or selling of a prescription drug in
violation of section 503B.''.
(c) Internet Sales of Prescription Drugs; Consideration by
Secretary of Practices and Procedures for Certification of
Legitimate Businesses.--In carrying out section 503B of the
Federal Food, Drug, and Cosmetic Act (as added by subsection
(a) of this section), the Secretary of Health and Human
Services shall take into consideration the practices and
procedures of public or private entities that certify that
businesses selling prescription drugs through Internet sites
are legitimate businesses, including practices and procedures
regarding disclosure formats and verification programs.
(d) Reports Regarding Internet-related Violations of State
and Federal Laws on Dispensing of Drugs.--
(1) In general.--The Secretary of Health and Human Services
(referred to in this subsection as the ``Secretary'') shall,
pursuant to the submission of an application meeting the
criteria of the Secretary, make an award of a grant or
contract to the National Clearinghouse on Internet
Prescribing (operated by the Federation of State Medical
Boards) for the purpose of--
(A) identifying Internet sites that appear to be in
violation of State or Federal laws concerning the dispensing
of drugs;
[[Page S1534]]
(B) reporting such sites to State medical licensing boards
and State pharmacy licensing boards, and to the Attorney
General and the Secretary, for further investigation; and
(C) submitting, for each fiscal year for which the award
under this subsection is made, a report to the Secretary
describing investigations undertaken with respect to
violations described in subparagraph (A).
(2) Authorization of appropriations.--For the purpose of
carrying out paragraph (1), there is authorized to be
appropriated $100,000 for each of the fiscal years 2005
through 2007.
(e) Effective Date.--The amendments made by subsections (a)
and (b) take effect upon the expiration of the 60-day period
beginning on the date of the enactment of this Act, without
regard to whether a final rule to implement such amendments
has been promulgated by the Secretary of Health and Human
Services under section 701(a) of the Federal Food, Drug, and
Cosmetic Act. The preceding sentence may not be construed as
affecting the authority of such Secretary to promulgate such
a final rule.
S. 400
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Prevention of Illegally
Imported Controlled Substances Act of 2005'' or ``Todd Rode
Act''.
SEC. 2. DESTRUCTION OF CERTAIN IMPORTED SHIPMENTS.
Part D of the Controlled Substances Act (21 U.S.C. 841 et
seq.) is amended by adding at the end the following:
``DESTRUCTION OF CERTAIN IMPORTED SHIPMENTS
``Sec. 424. (a) In General.--A shipment of controlled
substances that is imported or offered for import into the
United States in violation of section 401 and whose value is
less than $10,000 shall be seized and summarily forfeited to
the United States.
``(b) Destruction.--Controlled substances seized under
subsection (a) shall be destroyed, subject to subsection (d).
Section 801(b) of the Federal Food, Drug, and Cosmetic Act
(21 U.S.C. 381(b)) does not authorize the delivery of the
substances pursuant to the execution of a bond, and the
substances may not be exported.
``(c) Notice.--
``(1) Procedures.--The seizure and destruction of
controlled substances under subsections (a) and (b) may be
carried out without notice to the importer, owner, or
consignee of the controlled substances involved. Appraisement
of such substances is required only to the extent sufficient
to document that the substances are subject to subsection
(a).
``(2) Goals.--Procedures promulgated under paragraph (1)
shall be designed toward the goal of ensuring that, with
respect to efficiently utilizing Federal resources available
for carrying out this subsection, a substantial majority of
shipments of controlled substances subject to subsection (a)
are identified and seized under such paragraph and destroyed
under subsection (b).
``(d) Presentation of Evidence.--Controlled substances may
not be destroyed under subsection (b) to the extent that the
Attorney General of the United States determines that the
controlled substances should be preserved as evidence or
potential evidence with respect to an offense against the
United States.''.
Mrs. FEINSTEIN. 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.
[[Page S1535]]
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.
______
By Mr. HARKIN (for himself, Mr. Specter, Mr. Kennedy, Mr. Kerry,
Mr. Biden, Mr. Dayton, Ms. Landrieu, Mr. Schumer, Mr. Corzine,
Mr. Lautenberg, Mr. Lieberman, and Mr. Dodd):
S. 401. A bill to amend title XIX of the Social Security Act to
provide individuals with disabilities and older Americans with equal
access to community-based attendant services and supports, and for
other purposes; to the Committee on Finance.
Mr. HARKIN. Mr. President, today, Senator Specter and I and others
introduce the Medicaid Community-Based Attendant Services and Supports
Act of 2003 (MiCASSA). This legislation is needed to truly bring people
with disabilities into the mainstream of society and provide equal
opportunity for employment and community activities.
We anticipate that there will be some discussions of so called
``reform'' of the Medicaid system in this Congress. The Medicaid
program is a critical source of services and supports for millions of
Americans with disabilities. Any attempt to cap resources or decrease
the availability of services under that program will meet strong
opposition from myself and others.
But there is one area where Medicaid should be improved. Services
should be expanded to increase access to personal attendant services.
In order to work or live in their own homes, Americans with
Disabilities and older Americans need access to community-based
services and supports. Unfortunately, under current Federal Medicaid
policy, the deck is stacked in favor of living in an institutional
setting. Federal law requires that states cover nursing homes in their
Medicaid programs. But there is no similar requirement for attendant
services. The purpose of our bill is to level the playing field and
give eligible individuals equal access to community-based services and
supports they need.
The Medicaid Community Attendant Services and Supports Act will
accomplish four goals.
First, the bill amends Title XIX of the Social Security Act to
provide a new Medicaid plan benefit that would give individuals who are
currently eligible for nursing home services or an intermediate care
facility for the mentally retarded equal access to community-based
attendant services and supports.
Second, for a limited time, States would have the opportunity to
receive additional funds to support community attendant services and
supports and for certain administrative activities. Each State
currently gets federal money for their Medicaid program based on a set
percentage. This percentage is the Medicaid match rate. This bill would
increase that percentage to provide some additional funding to States
to help them reform their long term care systems.
Third, the bill provides States with financial assistance to support
``real choice systems change initiatives'' that include specific action
steps to increase the provision of home and community based services.
Finally, the bill establishes a demonstration project to evaluate
service coordination and cost sharing approaches with respect to the
provision of services and supports for individuals with disabilities
under the age of 65 who are dually eligible for Medicaid and Medicare.
Although some states have already recognized the benefits of home and
community based services, they are unevenly distributed and only reach
a small percentage of eligible individuals. Every State offers services
under home and community based waiver programs, but they only serve a
capped number of individuals. Some states also are now providing the
personal care optional benefit through their Medicaid program, but
others do not.
Those left behind are often needlessly institutionalized because they
cannot access community alternatives. A person with a disability's
civil right to be integrated into his or her community should not
depend on his or her address. In Olmstead v. LC, the Supreme Court
recognized that needless institutionalization is a form of
discrimination under the Americans With Disabilities Act. We in
Congress have a responsibility to help States meet their obligations
under Olmstead.
This MICASSA legislation is designed to do just that and make the
promise of the ADA a reality. It will help rebalance the current
Medicaid long term care system, which spends a disproportionate amount
on institutional services. For example, in 2003, 67 percent of long
term care Medicaid dollars were spent on institutional care, compared
to 33 percent community based care.
And that means that individuals do not have equal access to community
based care throughout this country. An individual should not be asked
to move to another state in order to avoid needless segregation. They
also should not be moved away from family and friends because their
only choice is an institution.
Federal Medicaid policy should reflect the consensus reached in the
ADA that Americans with Disabilities should have equal opportunity to
contribute to our communities and participate in our society as full
citizens. That means no one has to sacrifice their full participation
in society because they need help getting out of the house in the
morning or assistance with personal care or some other basic service.
I applaud the President's New Freedom Initiative for People with
Disabilities and believe that this legislation helps promote the goals
of that initiative. I will be reintroducing the Money Follows the
Person legislation that is part of the New Freedom Initiative and
believe that MICASSA and Money Follows the Person complement each
other. Together these two bills could substantially reform long term
services in this country.
Community based attendant services and supports allow people with
disabilities to lead independent lives, have jobs, and participate in
the community. Some will become taxpayers, some will get an education,
and some will participate in recreational and civic activities. But all
will experience a chance to make their own choices and govern their own
lives.
This bill will open the door to full participation by people with
disabilities in our workplaces, our economy, and our American Dream,
and I urge
[[Page S1536]]
all my colleagues to support us on this issue. I want to thank Senator
Specter for his leadership on this issue and his commitment to
improving access to home and community based services for people with
disabilities. I would also like to thank Senators Kennedy, Kerry,
Biden, Dayton, Landrieu, Corzine, Schumer, Lautenberg, Lieberman and
Dodd for joining me in this important initiative.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 401
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Medicaid
Community-Based Attendant Services and Supports Act of
2005''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings and purposes.
TITLE I--ESTABLISHMENT OF MEDICAID PLAN BENEFIT
Sec. 101. Coverage of community-based attendant services and supports
under the medicaid program.
Sec. 102. Enhanced FMAP for ongoing activities of early coverage States
that enhance and promote the use of community-based
attendant services and supports.
Sec. 103. Increased Federal financial participation for certain
expenditures.
TITLE II--PROMOTION OF SYSTEMS CHANGE AND CAPACITY BUILDING
Sec. 201. Grants to promote systems change and capacity building.
Sec. 202. Demonstration project to enhance coordination of care under
the medicare and medicaid programs for non-elderly dual
eligible individuals.
SEC. 2. FINDINGS AND PURPOSES.
(a) Findings.--Congress makes the following findings:
(1) Long-term services and supports provided under the
medicaid program established under title XIX of the Social
Security Act (42 U.S.C. 1396 et seq.) must meet the ability
and life choices of individuals with disabilities and older
Americans, including the choice to live in one's own home or
with one's own family and to become a productive member of
the community.
(2) Research on the provision of long-term services and
supports under the medicaid program (conducted by and on
behalf of the Department of Health and Human Services) has
revealed a significant funding bias toward institutional
care. Only about 33 percent of long term care funds expended
under the medicaid program, and only about 11 percent of all
funds expended under that program, pay for services and
supports in home and community-based settings.
(3) In the case of medicaid beneficiaries who need long
term care, the only long-term care service currently
guaranteed by Federal law in every State is nursing home
care. Only 30 States have adopted the benefit option of
providing personal care services under the medicaid program.
Although every State has chosen to provide certain services
under home and community-based waivers, these services are
unevenly available within and across States, and reach a
small percentage of eligible individuals. In fiscal year
2003, only 7 States spent 50 percent or more of their
medicaid long term care funds under the medicaid program on
home and community-based care.
(4) The goals of the Nation properly include providing
families of children with disabilities, working-age adults
with disabilities, and older Americans with--
(A) a meaningful choice of receiving long-term services and
supports in the most integrated setting appropriate to their
needs;
(B) the greatest possible control over the services
received and, therefore, their own lives and futures; and
(C) quality services that maximize independence in the home
and community, including in the workplace.
(b) Purposes.--The purposes of this Act are the following:
(1) To reform the medicaid program established under title
XIX of the Social Security Act (42 U.S.C. 1396 et seq.) to
provide equal access to community-based attendant services
and supports.
(2) To provide financial assistance to States as they
reform their long-term care systems to provide comprehensive
statewide long-term services and supports, including
community-based attendant services and supports that provide
consumer choice and direction, in the most integrated setting
appropriate.
TITLE I--ESTABLISHMENT OF MEDICAID PLAN BENEFIT
SEC. 101. COVERAGE OF COMMUNITY-BASED ATTENDANT SERVICES AND
SUPPORTS UNDER THE MEDICAID PROGRAM.
(a) Mandatory Coverage.--Section 1902(a)(10)(D) of the
Social Security Act (42 U.S.C. 1396a(a)(10)(D)) is amended--
(1) by inserting ``(i)'' after ``(D)'';
(2) by adding ``and'' after the semicolon; and
(3) by adding at the end the following new clause:
``(ii) subject to section 1936, for the inclusion of
community-based attendant services and supports for any
individual who--
``(I) is eligible for medical assistance under the State
plan;
``(II) with respect to whom there has been a determination
that the individual requires the level of care provided in a
nursing facility or an intermediate care facility for the
mentally retarded (whether or not coverage of such
intermediate care facility is provided under the State plan);
and
``(III) chooses to receive such services and supports;''.
(b) Community-Based Attendant Services and Supports.--
(1) In general.--Title XIX of the Social Security Act (42
U.S.C. 1396 et seq.) is amended--
(A) by redesignating section 1936 as section 1937; and
(B) by inserting after section 1935 the following:
``COMMUNITY-BASED ATTENDANT SERVICES AND SUPPORTS
``Sec. 1936. (a) Required Coverage.--
``(1) In general.--Not later than October 1, 2009, a State
shall provide through a plan amendment for the inclusion of
community-based attendant services and supports (as defined
in subsection (g)(1)) for individuals described in section
1902(a)(10)(D)(ii) in accordance with this section.
``(2) Enhanced fmap and additional federal financial
support for earlier coverage.--Notwithstanding section
1905(b), during the period that begins on October 1, 2005,
and ends on September 30, 2009, in the case of a State with
an approved plan amendment under this section during that
period that also satisfies the requirements of subsection (c)
the Federal medical assistance percentage shall be equal to
the enhanced FMAP described in section 2105(b) with respect
to medical assistance in the form of community-based
attendant services and supports provided to individuals
described in section 1902(a)(10)(D)(ii) in accordance with
this section on or after the date of the approval of such
plan amendment.
``(b) Development and Implementation of Benefit.--In order
for a State plan amendment to be approved under this section,
a State shall provide the Secretary with the following
assurances:
``(1) Assurance of development and implementation
collaboration.--That the State has developed and shall
implement the provision of community-based attendant services
and supports under the State plan through active
collaboration with--
``(A) individuals with disabilities;
``(B) elderly individuals;
``(C) representatives of such individuals; and
``(D) providers of, and advocates for, services and
supports for such individuals.
``(2) Assurance of provision on a statewide basis and in
most integrated setting.--That community-based attendant
services and supports will be provided under the State plan
to individuals described in section 1902(a)(10)(D)(ii) on a
statewide basis and in a manner that provides such services
and supports in the most integrated setting appropriate for
each individual eligible for such services and supports.
``(3) Assurance of nondiscrimination.--That the State will
provide community-based attendant services and supports to an
individual described in section 1902(a)(10)(D)(ii) without
regard to the individual's age, type of disability, or the
form of community-based attendant services and supports that
the individual requires in order to lead an independent life.
``(4) Assurance of maintenance of effort.--That the level
of State expenditures for optional medical assistance that--
``(A) is described in a paragraph other than paragraphs (1)
through (5), (17) and (21) of section 1905(a) or that is
provided under a waiver under section 1915, section 1115, or
otherwise; and
``(B) is provided to individuals with disabilities or
elderly individuals for a fiscal year,
shall not be less than the level of such expenditures for the
fiscal year preceding the fiscal year in which the State plan
amendment to provide community-based attendant services and
supports in accordance with this section is approved.
``(c) Requirements for Enhanced FMAP for Early Coverage.--
In addition to satisfying the other requirements for an
approved plan amendment under this section, in order for a
State to be eligible under subsection (a)(2) during the
period described in that subsection for the enhanced FMAP for
early coverage under subsection (a)(2), the State shall
satisfy the following requirements:
``(1) Specifications.--With respect to a fiscal year, the
State shall provide the Secretary with the following
specifications regarding the provision of community-based
attendant services and supports under the plan for that
fiscal year:
``(A)(i) The number of individuals who are estimated to
receive community-based attendant services and supports under
the plan during the fiscal year.
``(ii) The number of individuals that received such
services and supports during the preceding fiscal year.
``(B) The maximum number of individuals who will receive
such services and supports under the plan during that fiscal
year.
[[Page S1537]]
``(C) The procedures the State will implement to ensure
that the models for delivery of such services and supports
are consumer controlled (as defined in subsection (g)(2)(B)).
``(D) The procedures the State will implement to inform all
potentially eligible individuals and relevant other
individuals of the availability of such services and supports
under this title, and of other items and services that may be
provided to the individual under this title or title XVIII.
``(E) The procedures the State will implement to ensure
that such services and supports are provided in accordance
with the requirements of subsection (b)(1).
``(F) The procedures the State will implement to actively
involve individuals with disabilities, elderly individuals,
and representatives of such individuals in the design,
delivery, administration, and evaluation of the provision of
such services and supports under this title.
``(2) Participation in evaluations.--The State shall
provide the Secretary with such substantive input into, and
participation in, the design and conduct of data collection,
analyses, and other qualitative or quantitative evaluations
of the provision of community-based attendant services and
supports under this section as the Secretary deems necessary
in order to determine the effectiveness of the provision of
such services and supports in allowing the individuals
receiving such services and supports to lead an independent
life to the maximum extent possible.
``(d) Quality Assurance Program.--
``(1) State responsibilities.--In order for a State plan
amendment to be approved under this section, a State shall
establish and maintain a quality assurance program with
respect to community-based attendant services and supports
that provides for the following:
``(A) The State shall establish requirements, as
appropriate, for agency-based and other delivery models that
include--
``(i) minimum qualifications and training requirements for
agency-based and other models;
``(ii) financial operating standards; and
``(iii) an appeals procedure for eligibility denials and a
procedure for resolving disagreements over the terms of an
individualized plan.
``(B) The State shall modify the quality assurance program,
as appropriate, to maximize consumer independence and
consumer control in both agency-provided and other delivery
models.
``(C) The State shall provide a system that allows for the
external monitoring of the quality of services and supports
by entities consisting of consumers and their
representatives, disability organizations, providers,
families of disabled or elderly individuals, members of the
community, and others.
``(D) The State shall provide for ongoing monitoring of the
health and well-being of each individual who receives
community-based attendant services and supports.
``(E) The State shall require that quality assurance
mechanisms appropriate for the individual be included in the
individual's written plan.
``(F) The State shall establish a process for the mandatory
reporting, investigation, and resolution of allegations of
neglect, abuse, or exploitation in connection with the
provision of such services and supports.
``(G) The State shall obtain meaningful consumer input,
including consumer surveys, that measure the extent to which
an individual receives the services and supports described in
the individual's plan and the individual's satisfaction with
such services and supports.
``(H) The State shall make available to the public the
findings of the quality assurance program.
``(I) The State shall establish an ongoing public process
for the development, implementation, and review of the
State's quality assurance program.
``(J) The State shall develop and implement a program of
sanctions for providers of community-based services and
supports that violate the terms or conditions for the
provision of such services and supports.
``(2) Federal responsibilities.--
``(A) Periodic evaluations.--The Secretary shall conduct a
periodic sample review of outcomes for individuals who
receive community-based attendant services and supports under
this title.
``(B) Investigations.--The Secretary may conduct targeted
reviews and investigations upon receipt of an allegation of
neglect, abuse, or exploitation of an individual receiving
community-based attendant services and supports under this
section.
``(C) Development of provider sanction guidelines.--The
Secretary shall develop guidelines for States to use in
developing the sanctions required under paragraph (1)(J).
``(e) Reports.--The Secretary shall submit to Congress
periodic reports on the provision of community-based
attendant services and supports under this section,
particularly with respect to the impact of the provision of
such services and supports on--
``(1) individuals eligible for medical assistance under
this title;
``(2) States; and
``(3) the Federal Government.
``(f) No Effect on Ability to Provide Coverage Under a
Waiver.--
``(1) In general.--Nothing in this section shall be
construed as affecting the ability of a State to provide
coverage under the State plan for community-based attendant
services and supports (or similar coverage) under a waiver
approved under section 1915, section 1115, or otherwise.
``(2) Eligibility for enhanced match.--In the case of a
State that provides coverage for such services and supports
under a waiver, the State shall not be eligible under
subsection (a)(2) for the enhanced FMAP for the early
provision of such coverage unless the State submits a plan
amendment to the Secretary that meets the requirements of
this section.
``(g) Definitions.--In this title:
``(1) Community-based attendant services and supports.--
``(A) In general.--The term `community-based attendant
services and supports' means attendant services and supports
furnished to an individual, as needed, to assist in
accomplishing activities of daily living, instrumental
activities of daily living, and health-related functions
through hands-on assistance, supervision, or cueing--
``(i) under a plan of services and supports that is based
on an assessment of functional need and that is agreed to by
the individual or, as appropriate, the individual's
representative;
``(ii) in a home or community setting, which may include a
school, workplace, or recreation or religious facility, but
does not include a nursing facility or an intermediate care
facility for the mentally retarded;
``(iii) under an agency-provider model or other model (as
defined in paragraph (2)(C)); and
``(iv) the furnishing of which is selected, managed, and
dismissed by the individual, or, as appropriate, with
assistance from the individual's representative.
``(B) Included services and supports.--Such term includes--
``(i) tasks necessary to assist an individual in
accomplishing activities of daily living, instrumental
activities of daily living, and health-related functions;
``(ii) the acquisition, maintenance, and enhancement of
skills necessary for the individual to accomplish activities
of daily living, instrumental activities of daily living, and
health-related functions;
``(iii) backup systems or mechanisms (such as the use of
beepers) to ensure continuity of services and supports; and
``(iv) voluntary training on how to select, manage, and
dismiss attendants.
``(C) Excluded services and supports.--Subject to
subparagraph (D), such term does not include--
``(i) the provision of room and board for the individual;
``(ii) special education and related services provided
under the Individuals with Disabilities Education Act and
vocational rehabilitation services provided under the
Rehabilitation Act of 1973;
``(iii) assistive technology devices and assistive
technology services;
``(iv) durable medical equipment; or
``(v) home modifications.
``(D) Flexibility in transition to community-based home
setting.--Such term may include expenditures for transitional
costs, such as rent and utility deposits, first month's rent
and utilities, bedding, basic kitchen supplies, and other
necessities required for an individual to make the transition
from a nursing facility or intermediate care facility for the
mentally retarded to a community-based home setting where the
individual resides.
``(2) Additional definitions.--
``(A) Activities of daily living.--The term `activities of
daily living' includes eating, toileting, grooming, dressing,
bathing, and transferring.
``(B) Consumer controlled.--The term `consumer controlled'
means a method of providing services and supports that allow
the individual, or where appropriate, the individual's
representative, maximum control of the community-based
attendant services and supports, regardless of who acts as
the employer of record.
``(C) Delivery models.--
``(i) Agency-provider model.--The term `agency-provider
model' means, with respect to the provision of community-
based attendant services and supports for an individual, a
method of providing consumer controlled services and supports
under which entities contract for the provision of such
services and supports.
``(ii) Other models.--The term `other models' means
methods, other than an agency-provider model, for the
provision of consumer controlled services and supports. Such
models may include the provision of vouchers, direct cash
payments, or use of a fiscal agent to assist in obtaining
services.
``(D) Health-related functions.--The term `health-related
functions' means functions that can be delegated or assigned
by licensed health-care professionals under State law to be
performed by an attendant.
``(E) Instrumental activities of daily living.--The term
`instrumental activities of daily living' includes meal
planning and preparation, managing finances, shopping for
food, clothing, and other essential items, performing
essential household chores, communicating by phone and other
media, and traveling around and participating in the
community.
``(F) Individual's representative.--The term `individual's
representative' means a parent, a family member, a guardian,
an advocate, or an authorized representative of an
individual.''.
(c) Conforming Amendments.--
(1) Mandatory benefit.--Section 1902(a)(10)(A) of the
Social Security Act (42
[[Page S1538]]
U.S.C. 1396a(a)(10)(A)) is amended, in the matter preceding
clause (i), by striking ``(17) and (21)'' and inserting
``(17), (21), and (28)''.
(2) Definition of medical assistance.--Section 1905(a) of
the Social Security Act (42 U.S.C. 1396d) is amended--
(A) by striking ``and'' at the end of paragraph (27);
(B) by redesignating paragraph (28) as paragraph (29); and
(C) by inserting after paragraph (27) the following:
``(28) community-based attendant services and supports (to
the extent allowed and as defined in section 1936); and''.
(3) IMD/icfmr requirements.--Section 1902(a)(10)(C)(iv) of
the Social Security Act (42 U.S.C. 1396a(a)(10)(C)(iv)) is
amended by inserting ``and (28)'' after ``(24)''.
(d) Effective Dates.--
(1) In general.--Except as provided in paragraph (2), the
amendments made by this section (other than the amendment
made by subsection (c)(1)) take effect on October 1, 2005,
and apply to medical assistance provided for community-based
attendant services and supports described in section 1936 of
the Social Security Act furnished on or after that date.
(2) Mandatory benefit.--The amendment made by subsection
(c)(1) takes effect on October 1, 2009.
SEC. 102. ENHANCED FMAP FOR ONGOING ACTIVITIES OF EARLY
COVERAGE STATES THAT ENHANCE AND PROMOTE THE
USE OF COMMUNITY-BASED ATTENDANT SERVICES AND
SUPPORTS.
(a) In General.--Section 1936 of the Social Security Act,
as added by section 101(b), is amended--
(1) by redesignating subsections (d) through (g) as
subsections (f) through (i), respectively;
(2) in subsection (a)(1), by striking ``subsection (g)(1)''
and inserting ``subsection (i)(1)'';
(3) in subsection (a)(2), by inserting ``, and with respect
to expenditures described in subsection (d), the Secretary
shall pay the State the amount described in subsection
(d)(1)'' before the period;
(4) in subsection (c)(1)(C), by striking ``subsection
(g)(2)(B)'' and inserting ``subsection (i)(2)(B)''; and
(5) by inserting after subsection (c), the following:
``(d) Increased Federal Financial Participation for Early
Coverage States That Meet Certain Benchmarks.--
``(1) In general.--Subject to paragraph (2), for purposes
of subsection (a)(2), the amount and expenditures described
in this subsection are an amount equal to the Federal medical
assistance percentage, increased by 10 percentage points, of
the expenditures incurred by the State for the provision or
conduct of the services or activities described in paragraph
(3).
``(2) Expenditure criteria.--A State shall--
``(A) develop criteria for determining the expenditures
described in paragraph (1) in collaboration with the
individuals and representatives described in subsection
(b)(1); and
``(B) submit such criteria for approval by the Secretary.
``(3) Services and activities described.--For purposes of
paragraph (1), the services and activities described in this
subparagraph are the following:
``(A) One-stop intake, referral, and institutional
diversion services.
``(B) Identifying and remedying gaps and inequities in the
State's current provision of long-term services, particularly
those services that are provided based on such factors as
age, disability type, ethnicity, income, institutional bias,
or other similar factors.
``(C) Establishment of consumer participation and consumer
governance mechanisms, such as cooperatives and regional
service authorities, that are managed and controlled by
individuals with significant disabilities who use community-
based services and supports or their representatives.
``(D) Activities designed to enhance the skills, earnings,
benefits, supply, career, and future prospects of workers who
provide community-based attendant services and supports.
``(E) Continuous improvement activities that are designed
to ensure and enhance the health and well-being of
individuals who rely on community-based attendant services
and supports, particularly activities involving or initiated
by consumers of such services and supports or their
representatives.
``(F) Family support services to augment the efforts of
families and friends to enable individuals with disabilities
of all ages to live in their own homes and communities.
``(G) Health promotion and wellness services and
activities.
``(H) Provider recruitment and enhancement activities,
particularly such activities that encourage the development
and maintenance of consumer controlled cooperatives or other
small businesses or microenterprises that provide community-
based attendant services and supports or related services.
``(I) Activities designed to ensure service and systems
coordination.
``(J) Any other services or activities that the Secretary
deems appropriate.''.
(b) Effective Date.--The amendments made by subsection (a)
take effect on October 1, 2005.
SEC. 103. INCREASED FEDERAL FINANCIAL PARTICIPATION FOR
CERTAIN EXPENDITURES.
(a) In General.--Section 1936 of the Social Security Act,
as added by section 101(b) and amended by section 102, is
amended by inserting after subsection (d) the following:
``(e) Increased Federal Financial Participation for Certain
Expenditures.--
``(1) Eligibility for payment.--
``(A) In general.--In the case of a State that the
Secretary determines satisfies the requirements of
subparagraph (B), the Secretary shall pay the State the
amounts described in paragraph (2) in addition to any other
payments provided for under section 1903 or this section for
the provision of community-based attendant services and
supports.
``(B) Requirements.--The requirements of this subparagraph
are the following:
``(i) The State has an approved plan amendment under this
section.
``(ii) The State has incurred expenditures described in
paragraph (2).
``(iii) The State develops and submits to the Secretary
criteria to identify and select such expenditures in
accordance with the requirements of paragraph (3).
``(iv) The Secretary determines that payment of the
applicable percentage of such expenditures (as determined
under paragraph (2)(B)) would enable the State to provide a
meaningful choice of receiving community-based services and
supports to individuals with disabilities and elderly
individuals who would otherwise only have the option of
receiving institutional care.
``(2) Amounts and expenditures described.--
``(A) Expenditures in excess of 150 percent of baseline
amount.--The amounts and expenditures described in this
paragraph are an amount equal to the applicable percentage,
as determined by the Secretary in accordance with
subparagraph (B), of the expenditures incurred by the State
for the provision of community-based attendant services and
supports to an individual that exceed 150 percent of the
average cost of providing nursing facility services to an
individual who resides in the State and is eligible for such
services under this title, as determined in accordance with
criteria established by the Secretary.
``(B) Applicable percentage.--The Secretary shall establish
a payment scale for the expenditures described in
subparagraph (A) so that the Federal financial participation
for such expenditures gradually increases from 70 percent to
90 percent as such expenditures increase.
``(3) Specification of order of selection for
expenditures.--In order to receive the amounts described in
paragraph (2), a State shall--
``(A) develop, in collaboration with the individuals and
representatives described in subsection (b)(1) and pursuant
to guidelines established by the Secretary, criteria to
identify and select the expenditures submitted under that
paragraph; and
``(B) submit such criteria to the Secretary.''.
(b) Effective Date.--The amendment made by subsection (a)
takes effect on October 1, 2005.
TITLE II--PROMOTION OF SYSTEMS CHANGE AND CAPACITY BUILDING
SEC. 201. GRANTS TO PROMOTE SYSTEMS CHANGE AND CAPACITY
BUILDING.
(a) Authority to Award Grants.--
(1) In general.--The Secretary of Health and Human Services
(in this section referred to as the ``Secretary'') shall
award grants to eligible States to carry out the activities
described in subsection (b).
(2) Application.--In order to be eligible for a grant under
this section, a State shall submit to the Secretary an
application in such form and manner, and that contains such
information, as the Secretary may require.
(b) Permissible Activities.--A State that receives a grant
under this section may use funds provided under the grant for
any of the following activities, focusing on areas of need
identified by the State and the Consumer Task Force
established under subsection (c):
(1) The development and implementation of the provision of
community-based attendant services and supports under section
1936 of the Social Security Act (as added by section 101(b)
and amended by sections 102 and 103) through active
collaboration with--
(A) individuals with disabilities;
(B) elderly individuals;
(C) representatives of such individuals; and
(D) providers of, and advocates for, services and supports
for such individuals.
(2) Substantially involving individuals with significant
disabilities and representatives of such individuals in
jointly developing, implementing, and continually improving a
mutually acceptable comprehensive, effectively working
statewide plan for preventing and alleviating unnecessary
institutionalization of such individuals.
(3) Engaging in system change and other activities deemed
necessary to achieve any or all of the goals of such
statewide plan.
(4) Identifying and remedying disparities and gaps in
services to classes of individuals with disabilities and
elderly individuals who are currently experiencing or who
face substantial risk of unnecessary institutionalization.
(5) Building and expanding system capacity to offer quality
consumer controlled community-based services and supports to
individuals with disabilities and elderly individuals,
including by--
(A) seeding the development and effective use of community-
based attendant services
[[Page S1539]]
and supports cooperatives, independent living centers, small
businesses, microenterprises and similar joint ventures owned
and controlled by individuals with disabilities or
representatives of such individuals and community-based
attendant services and supports workers;
(B) enhancing the choice and control individuals with
disabilities and elderly individuals exercise, including
through their representatives, with respect to the personal
assistance and supports they rely upon to lead independent,
self-directed lives;
(C) enhancing the skills, earnings, benefits, supply,
career, and future prospects of workers who provide
community-based attendant services and supports;
(D) engaging in a variety of needs assessment and data
gathering;
(E) developing strategies for modifying policies,
practices, and procedures that result in unnecessary
institutional bias or the overmedicalization of long-term
services and supports;
(F) engaging in interagency coordination and single point
of entry activities;
(G) providing training and technical assistance with
respect to the provision of community-based attendant
services and supports;
(H) engaging in--
(i) public awareness campaigns;
(ii) facility-to-community transitional activities; and
(iii) demonstrations of new approaches; and
(I) engaging in other systems change activities necessary
for developing, implementing, or evaluating a comprehensive
statewide system of community-based attendant services and
supports.
(6) Ensuring that the activities funded by the grant are
coordinated with other efforts to increase personal attendant
services and supports, including--
(A) programs funded under or amended by the Ticket to Work
and Work Incentives Improvement Act of 1999 (Public Law 106-
170; 113 Stat. 1860);
(B) grants funded under the Families of Children With
Disabilities Support Act of 2000 (42 U.S.C. 15091 et seq.);
and
(C) other initiatives designed to enhance the delivery of
community-based services and supports to individuals with
disabilities and elderly individuals.
(7) Engaging in transition partnership activities with
nursing facilities and intermediate care facilities for the
mentally retarded that utilize and build upon items and
services provided to individuals with disabilities or elderly
individuals under the medicaid program under title XIX of the
Social Security Act, or by Federal, State, or local housing
agencies, independent living centers, and other organizations
controlled by consumers or their representatives.
(c) Consumer Task Force.--
(1) Establishment and duties.--To be eligible to receive a
grant under this section, each State shall establish a
Consumer Task Force (referred to in this subsection as the
``Task Force'') to assist the State in the development,
implementation, and evaluation of real choice systems change
initiatives.
(2) Appointment.--Members of the Task Force shall be
appointed by the Chief Executive Officer of the State in
accordance with the requirements of paragraph (3), after the
solicitation of recommendations from representatives of
organizations representing a broad range of individuals with
disabilities, elderly individuals, representatives of such
individuals, and organizations interested in individuals with
disabilities and elderly individuals.
(3) Composition.--
(A) In general.--The Task Force shall represent a broad
range of individuals with disabilities from diverse
backgrounds and shall include representatives from
Developmental Disabilities Councils, Mental Health Councils,
State Independent Living Centers and Councils, Commissions on
Aging, organizations that provide services to individuals
with disabilities and consumers of long-term services and
supports.
(B) Individuals with disabilities.--A majority of the
members of the Task Force shall be individuals with
disabilities or representatives of such individuals.
(C) Limitation.--The Task Force shall not include employees
of any State agency providing services to individuals with
disabilities other than employees of entities described in
the Developmental Disabilities Assistance and Bill of Rights
Act of 2000 (42 U.S.C. 15001 et seq.).
(d) Annual Report.--
(1) States.--A State that receives a grant under this
section shall submit an annual report to the Secretary on the
use of funds provided under the grant in such form and manner
as the Secretary may require.
(2) Secretary.--The Secretary shall submit to Congress an
annual report on the grants made under this section.
(e) Authorization of Appropriations.--
(1) In general.--There is authorized to be appropriated to
carry out this section, $50,000,000 for each of fiscal years
2006 through 2008.
(2) Availability.--Amounts appropriated to carry out this
section shall remain available without fiscal year
limitation.
SEC. 202. DEMONSTRATION PROJECT TO ENHANCE COORDINATION OF
CARE UNDER THE MEDICARE AND MEDICAID PROGRAMS
FOR NON-ELDERLY DUAL ELIGIBLE INDIVIDUALS.
(a) Definitions.--In this section:
(1) Non-elderly dually eligible individual.--The term
``non-elderly dually eligible individual'' means an
individual who--
(A) has not attained age 65; and
(B) is enrolled in the medicare and medicaid programs
established under titles XVIII and XIX, respectively, of the
Social Security Act (42 U.S.C. 1395 et seq., 1396 et seq.).
(2) Project.--The term ``project'' means the demonstration
project authorized to be conducted under this section.
(3) Secretary.--The term ``Secretary'' means the Secretary
of Health and Human Services.
(b) Authority to Conduct Project.--The Secretary shall
conduct a project under this section for the purpose of
evaluating service coordination and cost-sharing approaches
with respect to the provision of community-based services and
supports to non-elderly dually eligible individuals.
(c) Requirements.--
(1) Number of participants.--Not more than 5 States may
participate in the project.
(2) Application.--A State that desires to participate in
the project shall submit an application to the Secretary, at
such time and in such form and manner as the Secretary shall
specify.
(3) Duration.--The project shall be conducted for at least
5, but not more than 10 years.
(d) Evaluation and Report.--
(1) Evaluation.--Not later than 1 year prior to the
termination date of the project, the Secretary, in
consultation with States participating in the project,
representatives of non-elderly dually eligible individuals,
and others, shall evaluate the impact and effectiveness of
the project.
(2) Report.--The Secretary shall submit a report to
Congress that contains the findings of the evaluation
conducted under paragraph (1) along with recommendations
regarding whether the project should be extended or expanded,
and any other legislative or administrative actions that the
Secretary considers appropriate as a result of the project.
(e) Authorization of Appropriations.--There are authorized
to be appropriated such sums as are necessary to carry out
this section.
Mr. SPECTER. Mr. President, I have sought recognition to join Senator
Tom Harkin, my colleague and distinguished ranking member of the
Appropriations Subcommittee on Labor, Health and Human Services and
Education, which I chair, in introducing the ``Medicaid Attendant Care
Services and Supports Act of 2005.'' This creative proposal addresses a
glaring gap in Federal health coverage, and assists one of our Nation's
most vulnerable populations, persons with disabilities.
In an effort to improve the delivery of care and the comfort of those
with long-term disabilities, this vital legislation would allow for
reimbursement for community-based attendant care services, in lieu of
institutionalization, for eligible individuals who require such
services based on functional need, without regard to the individual's
age or the nature of the disability. Under this proposal, Medicaid
would provide States funding to offer and allow individuals who are
currently eligible for nursing home services or an intermediate care
facility for the mentally retarded equal access to community-based
attendants.
The most recent data available tell us that 8.9 million individuals
receive care for disabilities under the Medicaid program. The number of
disabled who are currently enrolled in Medicaid and would apply for
this improved benefit has been estimated at 2 million, a substantial
number due largely to the preference of home and community-based care
over institutional care. Currently, each State gets Federal money for
their Medicaid program based on a Medicaid match rate. This bill would
temporarily increase the Medicaid matching percentage providing States
with additional funding to reform their long term care systems and
implement this benefit.
Let me speak briefly about why such a change in Medicaid law is so
desperately needed. The Supreme Court held in Olmstead v. L.C., 119 S.
Ct. 2176 (1999), that the Americans with Disabilities Act, ADA,
requires States, under some circumstances, to provide community-based
treatment to persons with mental disabilities rather than placing them
in institutions. This decision and several lower court decisions have
pointed to the need for a structured Medicaid attendant-care services
benefit in order to meet obligations under the ADA. Disability
advocates strongly support this legislation, arguing that the lack of
Medicaid community-based services options is discriminatory and
unhealthful for disabled individuals. Virtually every major disability
advocacy group supports this bill, including ADAPT, the Arc, the
National Council on Independent Living, Paralyzed Veterans of America,
[[Page S1540]]
and the National Spinal Cord Injury Association.
Senator Harkin and I recognize that such a shift in the Medicaid
program is a huge undertaking--but feel that it is a vitally important
one. We are introducing this legislation today in an attempt to move
ahead with the consideration of crucial disability legislation and to
provide a starting point for debate. The time has come for concerted
action in this arena.
I urge the Congressional leadership, including the appropriate
committee chairmen, to move forward in considering this legislation,
and take the significant next step forward in achieving the objective
of providing individuals with disabilities the freedom to live in their
own communities.
______
By Mr. REID:
S. 404. A bill to make a technical correction relating to the land
conveyance authorized by Public Law 108-67; to the Committee on Energy
and Natural Resources.
Mr. REID. Mr. President, I ask unanimous consent that the text of the
bill be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 404
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. WASHOE TRIBE OF NEVADA AND CALIFORNIA LAND
CONVEYANCE.
Section 2 of Public Law 108-67 (117 Stat. 880) is amended
by striking ``the parcel'' and all that follows and inserting
``a portion of Lots 3 and 4, as shown on the United States
and Encumbrance Map revised January 10, 1991, for the Toiyabe
National Forest, Ranger District Carson -1, located in the
S\1/2\ of NW\1/4\ and N\1/2\ of SW\1/4\ of the SE\1/4\ of
sec. 27, T. 15N, R. 18E, Mt. Diablo Base and Meridian,
comprising 24.3 acres.''.
______
By Mr. REID (for himself and Mr. Ensign):
S. 405. A bill to provide for the conveyance of certain public land
in Clark County, Nevada, for use as a heliport; to the Committee on
Energy and Natural Resources.
Mr. REID. Mr. President, I rise today, for myself and Senator Ensign,
to introduce legislation to establish a public heliport facility in
Clark County, NY.
The purpose of this bill is simple: It would convey about a third of
a square mile of public land managed by the Bureau of Land Management
to Clark County for dedicated use as a heliport. The land is located
just south of the Henderson city limits and east of Interstate 15.
The establishment of this heliport will help eliminate the ongoing
conflict between air tour operators whose overflights of the Grand
Canyon represent a classic component of the Las Vegas visitor
experience and residents in the west-central and southwestern parts of
the Las Vegas Valley whose every day lives are adversely affected by
helicopter noise.
Local officials are committed to establishing a heliport within the
Las Vegas Valley. The county and local municipalities have previously
considered a site, currently in use as a go-kart track, near Interstate
15 near Henderson. The drawback of developing this site is that tours
originating from this location would fly over the most sensitive parts
of the Sloan Canyon National Conservation Area, with no restrictions on
routing or elevation. Sloan Canyon itself--one of the richest
petroglyph sites in the Mohave Desert--would be subject to regular
overflights. That outcome would be entirely legal, entirely predictable
and entirely regrettable.
In 2002, I worked closely with Senator Ensign, Congresswoman Berkley,
Congressman Gibbons and local advocates to protect the Sloan Canyon
area and its unique cultural resources. Through our combined efforts we
created the Sloan Canyon National Conservation Area and the McCullough
Mountains Wilderness, I am proud of these efforts and today I offer
this legislation as a further effort to protect the precious resources
that we worked to safeguard in 2002.
The bill I am introducing in the Senate today, and which I offered in
the 108th Congress, would not prohibit helicopter overflights of the
Sloan Canyon National Conservation Area. But it does ensure that such
flights steer clear of the most sensitive and special cultural
resources and minimize the impact on the majestic bighorn sheep and
other wildlife that live in the McCullough Mountains.
My legislation stipulates that any helicopter flight originating from
and/or landing at this heliport would be required by law to fly within
a set path--between 3 and 5 miles north of the southernmost boundary of
the Sloan Canyon National Conservation Area--and at a minimum height--
at least 500 to 1000 feet above ground level while in the NCA. Further,
it requires that every such flight contribute 3 dollars per passenger
to a special fund dedicated to the protection of the cultural,
wilderness, and wildlife resources in Nevada.
These provisions justify conveying the land to Clark County at no
cost because they provide a stable, long-term source of funding in
excess of the market value of the land and because the conveyance and
use are in the public interest.
It was my pleasure to introduce this bill during the last Congress.
My fellow Senators, particularly the Chairman and Ranking member of the
Senate Energy and Natural Resources Committee, were generous in their
support of this measure, allowing us to hold a prompt hearing. I am
hopeful that my distinguished colleagues will work with me to complete
work on this important legislation during the current session.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 405
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. CONVEYANCE OF PROPERTY TO CLARK COUNTY, NEVADA.
(a) Findings.--Congress finds that--
(1) the Las Vegas Valley in the State of Nevada is the
fastest growing community in the United States;
(2) helicopter tour operations are conflicting with the
needs of long-established residential communities in the
Valley; and
(3) the designation of a public heliport in the Valley that
would reduce conflicts between helicopter tour operators and
residential communities is in the public interest.
(b) Purpose.--The purpose of this Act is to provide a
suitable location for the establishment of a commercial
service heliport facility to serve the Las Vegas Valley in
the State of Nevada while minimizing and mitigating the
impact of air tours on the Sloan Canyon National Conservation
Area and North McCullough Mountains Wilderness.
(c) Definitions.--In this Act:
(1) Conservation area.--The term ``Conservation Area''
means the Sloan Canyon National Conservation Area established
by section 604(a) of the Clark County Conservation of Public
Land and Natural Resources Act of 2002 (116 Stat. 2010).
(2) County.--The term ``County'' means Clark County,
Nevada.
(3) Helicopter tour.--
(A) In general.--The term ``helicopter tour'' means a
commercial helicopter tour operated for profit.
(B) Exclusion.--The term ``helicopter tour'' does not
include a helicopter tour that is carried out to assist a
Federal, State, or local agency.
(4) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(5) Wilderness.--The term ``Wilderness'' means the North
McCullough Mountains Wilderness established by section
202(a)(13) of the Clark County Conservation of Public Land
and Natural Resources Act of 2002 (116 Stat. 2000).
(d) Conveyance.--As soon as practicable after the date of
enactment of this Act, the Secretary shall convey to the
County, subject to valid existing rights, for no
consideration, all right, title, and interest of the United
States in and to the parcel of land described in subsection
(e).
(e) Description of Land.--The parcel of land to be conveyed
under subsection (d) is the parcel of approximately 229 acres
of land depicted as tract A on the map entitled ``Clark
County Public Heliport Facility'' and dated May 3, 2004.
(f) Use of Land.--
(1) In general.--The parcel of land conveyed under
subsection (d)--
(A) shall be used by the County for the operation of a
heliport facility under the conditions stated in paragraphs
(2) and (3); and
(B) shall not be disposed of by the County.
(2) Imposition of fees.--
(A) In general.--Any operator of a helicopter tour
originating from or concluding at the parcel of land
described in subsection (e) shall pay to the Clark County
Department of Aviation a $3 conservation fee for each
passenger on the helicopter tour if any portion of the
helicopter tour occurs over the Conservation Area.
(B) Disposition of funds.--Any amounts collected under
subparagraph (A) shall be deposited in a special account in
the Treasury of the United States, which shall be available
to the Secretary, without further appropriation, for the
management of cultural,
[[Page S1541]]
wildlife, and wilderness resources on public land in the
State of Nevada.
(3) Flight path.--Except for safety reasons, any helicopter
tour originating or concluding at the parcel of land
described in subsection (e) that flies over the Conservation
Area shall not fly--
(A) over any area in the Conservation Area except the area
that is between 3 and 5 miles north of the latitude of the
southernmost boundary of the Conservation Area;
(B) lower than 1,000 feet over the eastern segments of the
boundary of the Conservation Area; or
(C) lower than 500 feet over the western segments of the
boundary of the Conservation Area.
(4) Reversion.--If the County ceases to use any of the land
described in subsection (d) for the purpose described in
paragraph (1)(A) and under the conditions stated in
paragraphs (2) and (3)--
(A) title to the parcel shall revert to the United States,
at the option of the United States; and
(B) the County shall be responsible for any reclamation
necessary to revert the parcel to the United States.
(g) Administrative Costs.--The Secretary shall require, as
a condition of the conveyance under subsection (d), that the
County pay the administrative costs of the conveyance,
including survey costs and any other costs associated with
the transfer of title.
______
By Ms. SNOWE (for herself, Mr. Talent, Mr. Bond, Mr. Byrd, Mrs.
Dole, Mr. McCain, Mrs. Hutchison, Mr. Coleman, Mr. Vitter, and
Mr. Martinez):
S. 406. A bill to amend title I of the Employee Retirement Security
Act of 1974 to improve access and choice for entrepreneurs with small
businesses with respect to medical care for their employees; to the
Committee on Health, Education, Labor, and Pensions.
Ms. SNOWE. Mr. President, as Chair of the Committee on Small Business
and Entrepreneurship, I rise to introduce the Small Business Health
Fairness Act of 2005. I am joined in this bipartisan effort by Senators
Talent, Bond, Byrd, Dole, McCain, Hutchison, Coleman, Vitter and
Martinez.
This bill creates Association Health Plans (AHPs), also called Small
Business Health Plans, that give small businesses the same market based
advantages and leverage that large employers and unions currently enjoy
when providing health insurance to their employees.
AHPs directly address one of the most critical issues facing small
businesses nationwide: the crisis small businesses face trying to
provide health insurance for their employees. No other issue has been
mentioned so frequently or by so many of the small businesses with whom
I have met since I became Chair. While the problem has been growing for
years, the outcry has built so that now it is indeed a loud chorus of
small businesses desperate for relief and demanding that something be
done.
Without exception, every small business person who has approached me
has asked me to do something about the crushing burden from increased
health insurance costs. The anecdotal accounts that I have heard have
been confirmed by reports detailing how much health insurance costs are
increasing across the board for all employers and especially for small
businesses.
The Kaiser Family Foundation has reported that health insurance
premiums increased between the spring of 2003 and spring of 2004 by
11.2 percent. This is the fourth such year of double digit increases
and follows increases of 13.9 percent, 12.9 percent and 10.9 percent.
In contrast, overall inflation during the last three years was 2.3
percent, 2.2 percent and 1.6 percent, wage gains for non-supervisory
workers were similarly stable at 2.2 percent, 3.1 percent and 3.2
percent, respectively. This is an astonishing trend.
Not only are the costs for employers increasing, but these are now
being passed onto the employees. As a result, the amount of premium
employees pay for family coverage has increased almost 64 percent over
the past 4 years, from $1,619 to $2,661. As I have heard from many
small businesses, increases in insurance costs often mean employees do
not get the benefit of salary and wage increases. Employers are
rewarding employees with raises and then requiring them to pay more of
their health insurance. These employers are disheartened that they are
giving a raise with one hand and then turning around and taking it away
with the other.
The Kaiser report also shows that this year, firms with 3 to 199
workers had premium increases of 9.1 percent and the smallest firms
with 3 to 9 workers averaged 12.4 percent increases. So we see that as
bad as things have gotten they're worse for the smallest businesses who
are the source of as much as 75 percent of our country's new jobs. In
my meetings with small businesses, they invariably report increases far
greater than even these percentages, generally 30 percent, 40 percent
or more.
The increase in these costs can not be dismissed as just another cost
of doing business and absorbed or passed on to customers, because we
know small businesses often have lower profit margins for their goods
and services than other businesses. These skyrocketing costs often mean
the difference between the business expanding or struggling to survive.
The high cost of health insurance can even make the difference in
whether a small business creates new jobs. Small businesses have told
me that the high cost of providing health care is preventing small
businesses from adding more employees because they can not afford the
additional health insurance expenses. In other cases, employers are
turning to temporary or part time employees, again to avoid paying
outrageous health insurance costs.
The result of these higher costs is that, according to the U.S.
Census Bureau, in 2003 there were 45 million people without insurance,
1.4 million more than the year before and 3.8 million since 2001. This
is being attributed to a decrease in the number of people covered by
insurance through their employers--down 61 percent in 2004.
Disturbingly, the Kaiser study says that only 52 percent of firms with
3 to 9 employees offer health benefits. Indeed, sometimes I wonder how
small businesses can provide insurance at all. The fact that so many do
is testimony to their recognition of how essential this is to their
employees, and their determination to offer this benefit even in the
face of constantly skyrocketing costs.
Last year's Kaiser report suggests that the greater increase in
premiums for traditionally insured plans of 15.6 percent versus self
insured plans at 12.4 percent ``may indicate that part of the rise in
health care premiums is due to insurers expanding their underwriting
gains.'' They also say that one of the factors driving the high rate of
premium growth appears to be ``insurers' efforts to emphasize
profitability in their pricing.''
What these statements really mean is that insurance companies are
getting as much as they can out of their small business customers
because they know these customers have no other options. Large
employers, unlike small businesses, have competition for their business
because they have many employees through whom to spread the risks. This
makes them attractive to insurance companies who compete for their
business.
Large employers also have the option of self insuring under ERISA
which is only practical for employers who are large enough to afford
the costs. This approach, though, offers significant savings by
eliminating the administrative costs of the middle man--the insurance
companies. A study by SBA's Office of Advocacy has shown that these
plans have administrative costs as much as 30 percent lower.
Small businesses from my home state of Maine have made it clear that
they have only one choice for their health care. Even when they band
together in local purchasing pools, they are unable to attract any
other insurance carriers to provide them with less expensive and more
flexible options. Right after small businesses tell me how high their
rates are they tell me how they have no choices and in some cases are
even lucky to have anyone offering them any coverage at all.
In response to this health care crisis facing the small business
community, I am introducing the Small Business Health Fairness Act of
2005.
This bill creates national Association Health Plans which allow small
businesses to pool their employees together under the auspices of their
bona fide associations to get the same bulk purchasing and
administrative efficiencies already enjoyed by large employers and
unions with their health care plans. It builds on the success of the
ERISA self
[[Page S1542]]
insurance plans used by large employers and the Taft-Hartley plans
available to union employers. These two types of plans currently
provide health benefits for 72 million people, more than half of the
130 million total people who get their health insurance through their
employer.
It is ludicrous that we have a two tiered health insurance system in
this country where one group of employers--large ones and those who are
union employers--get preferential treatment over those who create over
75 percent of the new jobs. I am at a loss to understand why small
businesses should be denied the same advantages that these other
employers already have. This is a matter of basic fairness.
AHPs will be able to offer less expensive plans, and also greater
flexibility because they will be exempt from the myriad state benefit
regulations. Associations will be able to design their plans to meet
the needs of their members and their employees. By administering one
national plan, it will further reduce the administrative costs instead
of trying to administer a plan subject to the mandates of each state.
Even though the benefit mandates will not be in effect, associations
will need to design their plans so that enough members participate in
them to attract the necessary employees to make them work. This means
that they will naturally provide a full range of benefits similar to
what many states currently require. In many cases, the plans offered by
large employers and unions, which are also exempt from the state
benefit mandates, are the most generous plans available. People will
often stay in those jobs specifically to keep their health care
coverage.
The bill would also provide extensive new protections to ensure that
the health care coverage is there when employees need it. Associations
sponsoring these plans would need to be established for at least three
years for purposes other than providing health insurance--this is
intended to prevent the current epidemic of fraud and abuse that is
occurring through sham associations who take money from unsuspecting
small businesses and then cease to exist when someone files a claim.
In addition, self-funded AHPs would be required to have sufficient
funds in reserve, specific stop-loss insurances, indemnification
insurance, and other funding and certification requirements to make
sure the insurance coverage would be available when needed. None of
these requirements apply to any of the plans currently regulated by the
Department of Labor, either the large employer plans under the Employee
Retirement Income Security Act (ERISA), or the union plans under the
Taft-Hartley Act.
Yet, the opponents of this bill have mis-characterized it in ways
that make it sound like this would be the worst thing in the world for
small businesses.
They have said that this bill would lead to ``cherry picking''--where
AHPs would only take young healthy people. There is language in the
bill which explicitly states that an association which offers a plan
must offer it to all of their members, and a member who participates in
the plan must offer the plan to every employee. Violation of these
requirements is subject to enforcement by the Department of Labor under
ERISA.
They have said that the Department of Labor would not be able to
handle their responsibilities under this bill. The Department of Labor
is already overseeing 275,000 similarly structured plans. We do not
hear employees complain about these plans, or that they are failing and
leaving subscribers without coverage. The additional plans from AHPs
would not add that much of a burden to their operations and the
Secretary of Labor has testified before the Small Business Committee
that sufficient resources would be available to make sure the
Department fulfilled its obligations.
Opponents have claimed that AHPs would not be subject to any solvency
protections or other insurance regulations. This is flat out not true.
The bill specifies detailed solvency protections that self funded AHPs
would have to implement which are far beyond anything current self
funded large employer plans have to implement. In fact those plans are
not required to have any solvency protections. Insurance companies that
would provide the coverage for fully insured AHPs would continue to be
subject to state solvency requirements, as well as other state
protections in the same way as they are now.
Opponents of this bill are basically saying that small businesses do
not need more options and that they should be satisfied with the few
that they have. They want to preserve the status quo which does nothing
for small businesses. This bill would create competition in the small
group market where there currently is none. If we expect our small
employers to provide health insurance to their employees, we must pass
AHP legislation to give them the same advantages enjoyed by large
employers and union employers.
Giving small businesses better and more affordable options for their
health care will also have an impact on the larger problem of the
uninsured. The latest Census Bureau figures indicate that in 2003
approximately 45 million people had no health insurance. We also know
that about 60 percent of these uninsured work for a small business, or
are in a family of someone who works for a small business. The CBO has
estimated that 600,000 people would go from being uninsured to being
insured if AHPs were available. There are other studies that show this
number could be more like 4.5 million and possibly as high as 8.5
million. What is clear is that giving small businesses AHPs as an
option will mean that more of them who currently do not offer health
insurance will be able to provide this benefit to their employees and
their families.
This bill is supported by a large coalition of small business
interests with approximately 12 million employers who represent about
80 million employees. President Bush included AHPs in the State of the
Union and has made this part of his agenda for providing more health
care options and helping small businesses. During the campaign he
called for passage of this bill on almost a daily basis. And he
continues to call for its passage. Our Majority Leader has indicated
his support for taking up this bill. The House has passed the bill
several times with strong bipartisan support and will pass it again
this year. Significantly, the Senate Task Force on the Uninsured
included AHPs among its recommendation for increasing coverage. The
time has come to get this bill through the Senate. We must pass AHPs
this session.
In the time I have been Chair of the Small Business Committee, I have
come to understand even more that the entrepreneurial spirit burns
bright throughout our nation. There are millions of people who seek a
better life and personal satisfaction through starting and running
small businesses. These folks are not looking for a handout, or
preferential treatment. They are merely looking to us to recognize the
absolutely essential role they play in our economy and to be treated
accordingly and fairly. If we want more jobs, and better family lives,
we must give small businesses the support they are seeking.
While this bill has passed the House with bipartisan support on
several occasions, it has not been considered in the Senate. I intend
to change that. I will work with Senator Enzi as the new chair of the
HELP Committee, Senate Leaders, and others to find ways and develop
enhancements to get this bill through the Senate. If there are changes
that can be made, I am willing to consider them.
I believe we will see movement on this issue this Congress, and I
look forward to working with my colleagues to bring relief and
assistance to our nation's small businesses.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 406
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Small
Business Health Fairness Act of 2005''.
(b) Table of Contents.--The table of contents is as
follows:
Sec. 1. Short title and table of contents.
Sec. 2. Rules governing association health plans.
[[Page S1543]]
Sec. 3. Clarification of treatment of single employer arrangements.
Sec. 4. Enforcement provisions relating to association health plans.
Sec. 5. Cooperation between Federal and State authorities.
Sec. 6. Effective date and transitional and other rules.
SEC. 2. RULES GOVERNING ASSOCIATION HEALTH PLANS.
(a) In General.--Subtitle B of title I of the Employee
Retirement Income Security Act of 1974 is amended by adding
after part 7 the following new part:
``PART 8--RULES GOVERNING ASSOCIATION HEALTH PLANS
``SEC. 801. ASSOCIATION HEALTH PLANS.
``(a) In General.--For purposes of this part, the term
`association health plan' means a group health plan whose
sponsor is (or is deemed under this part to be) described in
subsection (b).
``(b) Sponsorship.--The sponsor of a group health plan is
described in this subsection if such sponsor--
``(1) is organized and maintained in good faith, with a
constitution and bylaws specifically stating its purpose and
providing for periodic meetings on at least an annual basis,
as a bona fide trade association, a bona fide industry
association (including a rural electric cooperative
association or a rural telephone cooperative association), a
bona fide professional association, or a bona fide chamber of
commerce (or similar bona fide business association,
including a corporation or similar organization that operates
on a cooperative basis (within the meaning of section 1381 of
the Internal Revenue Code of 1986)), for substantial purposes
other than that of obtaining or providing medical care;
``(2) is established as a permanent entity which receives
the active support of its members and requires for membership
payment on a periodic basis of dues or payments necessary to
maintain eligibility for membership in the sponsor; and
``(3) does not condition membership, such dues or payments,
or coverage under the plan on the basis of health status-
related factors with respect to the employees of its members
(or affiliated members), or the dependents of such employees,
and does not condition such dues or payments on the basis of
group health plan participation.
Any sponsor consisting of an association of entities which
meet the requirements of paragraphs (1), (2), and (3) shall
be deemed to be a sponsor described in this subsection.
``SEC. 802. CERTIFICATION OF ASSOCIATION HEALTH PLANS.
``(a) In General.--The applicable authority shall prescribe
by regulation a procedure under which, subject to subsection
(b), the applicable authority shall certify association
health plans which apply for certification as meeting the
requirements of this part.
``(b) Standards.--Under the procedure prescribed pursuant
to subsection (a), in the case of an association health plan
that provides at least one benefit option which does not
consist of health insurance coverage, the applicable
authority shall certify such plan as meeting the requirements
of this part only if the applicable authority is satisfied
that the applicable requirements of this part are met (or,
upon the date on which the plan is to commence operations,
will be met) with respect to the plan.
``(c) Requirements Applicable to Certified Plans.--An
association health plan with respect to which certification
under this part is in effect shall meet the applicable
requirements of this part, effective on the date of
certification (or, if later, on the date on which the plan is
to commence operations).
``(d) Requirements for Continued Certification.--The
applicable authority may provide by regulation for continued
certification of association health plans under this part.
``(e) Class Certification for Fully Insured Plans.--The
applicable authority shall establish a class certification
procedure for association health plans under which all
benefits consist of health insurance coverage. Under such
procedure, the applicable authority shall provide for the
granting of certification under this part to the plans in
each class of such association health plans upon appropriate
filing under such procedure in connection with plans in such
class and payment of the prescribed fee under section 807(a).
``(f) Certification of Self-Insured Association Health
Plans.--An association health plan which offers one or more
benefit options which do not consist of health insurance
coverage may be certified under this part only if such plan
consists of any of the following:
``(1) A plan which offered such coverage on the date of the
enactment of the Small Business Health Fairness Act of 2005.
``(2) A plan under which the sponsor does not restrict
membership to one or more trades and businesses or industries
and whose eligible participating employers represent a broad
cross-section of trades and businesses or industries.
``(3) A plan whose eligible participating employers
represent one or more trades or businesses, or one or more
industries, consisting of any of the following: agriculture;
equipment and automobile dealerships; barbering and
cosmetology; certified public accounting practices; child
care; construction; dance, theatrical and orchestra
productions; disinfecting and pest control; financial
services; fishing; foodservice establishments; hospitals;
labor organizations; logging; manufacturing (metals); mining;
medical and dental practices; medical laboratories;
professional consulting services; sanitary services;
transportation (local and freight); warehousing; wholesaling/
distributing; or any other trade or business or industry
which has been indicated as having average or above-average
risk or health claims experience by reason of State rate
filings, denials of coverage, proposed premium rate levels,
or other means demonstrated by such plan in accordance with
regulations.
``SEC. 803. REQUIREMENTS RELATING TO SPONSORS AND BOARDS OF
TRUSTEES.
``(a) Sponsor.--The requirements of this subsection are met
with respect to an association health plan if the sponsor has
met (or is deemed under this part to have met) the
requirements of section 801(b) for a continuous period of not
less than 3 years ending with the date of the application for
certification under this part.
``(b) Board of Trustees.--The requirements of this
subsection are met with respect to an association health plan
if the following requirements are met:
``(1) Fiscal control.--The plan is operated, pursuant to a
trust agreement, by a board of trustees which has complete
fiscal control over the plan and which is responsible for all
operations of the plan.
``(2) Rules of operation and financial controls.--The board
of trustees has in effect rules of operation and financial
controls, based on a 3-year plan of operation, adequate to
carry out the terms of the plan and to meet all requirements
of this title applicable to the plan.
``(3) Rules governing relationship to participating
employers and to contractors.--
``(A) Board membership.--
``(i) In general.--Except as provided in clauses (ii) and
(iii), the members of the board of trustees are individuals
selected from individuals who are the owners, officers,
directors, or employees of the participating employers or who
are partners in the participating employers and actively
participate in the business.
``(ii) Limitation.--
``(I) General rule.--Except as provided in subclauses (II)
and (III), no such member is an owner, officer, director, or
employee of, or partner in, a contract administrator or other
service provider to the plan.
``(II) Limited exception for providers of services solely
on behalf of the sponsor.--Officers or employees of a sponsor
which is a service provider (other than a contract
administrator) to the plan may be members of the board if
they constitute not more than 25 percent of the membership of
the board and they do not provide services to the plan other
than on behalf of the sponsor.
``(III) Treatment of providers of medical care.--In the
case of a sponsor which is an association whose membership
consists primarily of providers of medical care, subclause
(I) shall not apply in the case of any service provider
described in subclause (I) who is a provider of medical care
under the plan.
``(iii) Certain plans excluded.--Clause (i) shall not apply
to an association health plan which is in existence on the
date of the enactment of the Small Business Health Fairness
Act of 2005.
``(B) Sole authority.--The board has sole authority under
the plan to approve applications for participation in the
plan and to contract with a service provider to administer
the day-to-day affairs of the plan.
``(c) Treatment of Franchise Networks.--In the case of a
group health plan which is established and maintained by a
franchiser for a franchise network consisting of its
franchisees--
``(1) the requirements of subsection (a) and section 801(a)
shall be deemed met if such requirements would otherwise be
met if the franchiser were deemed to be the sponsor referred
to in section 801(b), such network were deemed to be an
association described in section 801(b), and each franchisee
were deemed to be a member (of the association and the
sponsor) referred to in section 801(b); and
``(2) the requirements of section 804(a)(1) shall be deemed
met.
The Secretary may by regulation define for purposes of this
subsection the terms `franchiser', `franchise network', and
`franchisee'.
``SEC. 804. PARTICIPATION AND COVERAGE REQUIREMENTS.
``(a) Covered Employers and Individuals.--The requirements
of this subsection are met with respect to an association
health plan if, under the terms of the plan--
``(1) each participating employer must be--
``(A) a member of the sponsor;
``(B) the sponsor; or
``(C) an affiliated member of the sponsor with respect to
which the requirements of subsection (b) are met, except
that, in the case of a sponsor which is a professional
association or other individual-based association, if at
least one of the officers, directors, or employees of an
employer, or at least one of the individuals who are partners
in an employer and who actively participates in the business,
is a member or such an affiliated member of the sponsor,
participating employers may also include such employer; and
``(2) all individuals commencing coverage under the plan
after certification under this part must be--
``(A) active or retired owners (including self-employed
individuals), officers, directors, or employees of, or
partners in, participating employers; or
``(B) the beneficiaries of individuals described in
subparagraph (A).
[[Page S1544]]
``(b) Coverage of Previously Uninsured Employees.--In the
case of an association health plan in existence on the date
of the enactment of the Small Business Health Fairness Act of
2005, an affiliated member of the sponsor of the plan may be
offered coverage under the plan as a participating employer
only if--
``(1) the affiliated member was an affiliated member on the
date of certification under this part; or
``(2) during the 12-month period preceding the date of the
offering of such coverage, the affiliated member has not
maintained or contributed to a group health plan with respect
to any of its employees who would otherwise be eligible to
participate in such association health plan.
``(c) Individual Market Unaffected.--The requirements of
this subsection are met with respect to an association health
plan if, under the terms of the plan, no participating
employer may provide health insurance coverage in the
individual market for any employee not covered under the plan
which is similar to the coverage contemporaneously provided
to employees of the employer under the plan, if such
exclusion of the employee from coverage under the plan is
based on a health status-related factor with respect to the
employee and such employee would, but for such exclusion on
such basis, be eligible for coverage under the plan.
``(d) Prohibition of Discrimination Against Employers and
Employees Eligible to Participate.--The requirements of this
subsection are met with respect to an association health plan
if--
``(1) under the terms of the plan, all employers meeting
the preceding requirements of this section are eligible to
qualify as participating employers for all geographically
available coverage options, unless, in the case of any such
employer, participation or contribution requirements of the
type referred to in section 2711 of the Public Health Service
Act are not met;
``(2) upon request, any employer eligible to participate is
furnished information regarding all coverage options
available under the plan; and
``(3) the applicable requirements of sections 701, 702, and
703 are met with respect to the plan.
``SEC. 805. OTHER REQUIREMENTS RELATING TO PLAN DOCUMENTS,
CONTRIBUTION RATES, AND BENEFIT OPTIONS.
``(a) In General.--The requirements of this section are met
with respect to an association health plan if the following
requirements are met:
``(1) Contents of governing instruments.--The instruments
governing the plan include a written instrument, meeting the
requirements of an instrument required under section
402(a)(1), which--
``(A) provides that the board of trustees serves as the
named fiduciary required for plans under section 402(a)(1)
and serves in the capacity of a plan administrator (referred
to in section 3(16)(A));
``(B) provides that the sponsor of the plan is to serve as
plan sponsor (referred to in section 3(16)(B)); and
``(C) incorporates the requirements of section 806.
``(2) Contribution rates must be nondiscriminatory.--
``(A) In general.--The contribution rates for any
participating small employer shall not vary on the basis of
any health status-related factor in relation to employees of
such employer or their beneficiaries and shall not vary on
the basis of the type of business or industry in which such
employer is engaged.
``(B) Effect of title.--Nothing in this title or any other
provision of law shall be construed to preclude an
association health plan, or a health insurance issuer
offering health insurance coverage in connection with an
association health plan, from--
``(i) setting contribution rates based on the claims
experience of the plan; or
``(ii) varying contribution rates for small employers in a
State to the extent that such rates could vary using the same
methodology employed in such State for regulating premium
rates in the small group market with respect to health
insurance coverage offered in connection with bona fide
associations (within the meaning of section 2791(d)(3) of the
Public Health Service Act), subject to the requirements of
section 702(b) relating to contribution rates.
``(3) Floor for number of covered individuals with respect
to certain plans.--If any benefit option under the plan does
not consist of health insurance coverage, the plan has as of
the beginning of the plan year not fewer than 1,000
participants and beneficiaries.
``(4) Marketing requirements.--
``(A) In general.--If a benefit option which consists of
health insurance coverage is offered under the plan, State-
licensed insurance agents shall be used to distribute to
small employers coverage which does not consist of health
insurance coverage in a manner comparable to the manner in
which such agents are used to distribute health insurance
coverage.
``(B) State-licensed insurance agents.--For purposes of
subparagraph (A), the term `State-licensed insurance agents'
means one or more agents who are licensed in a State and are
subject to the laws of such State relating to licensure,
qualification, testing, examination, and continuing education
of persons authorized to offer, sell, or solicit health
insurance coverage in such State.
``(5) Regulatory requirements.--Such other requirements as
the applicable authority determines are necessary to carry
out the purposes of this part, which shall be prescribed by
the applicable authority by regulation.
``(b) Ability of Association Health Plans to Design Benefit
Options.--Subject to section 514(d), nothing in this part or
any provision of State law (as defined in section 514(c)(1))
shall be construed to preclude an association health plan, or
a health insurance issuer offering health insurance coverage
in connection with an association health plan, from
exercising its sole discretion in selecting the specific
items and services consisting of medical care to be included
as benefits under such plan or coverage, except (subject to
section 514) in the case of (1) any law to the extent that it
is not preempted under section 731(a)(1) with respect to
matters governed by section 711, 712, or 713, or (2) any law
of the State with which filing and approval of a policy type
offered by the plan was initially obtained to the extent that
such law prohibits an exclusion of a specific disease from
such coverage.
``SEC. 806. MAINTENANCE OF RESERVES AND PROVISIONS FOR
SOLVENCY FOR PLANS PROVIDING HEALTH BENEFITS IN
ADDITION TO HEALTH INSURANCE COVERAGE.
``(a) In General.--The requirements of this section are met
with respect to an association health plan if--
``(1) the benefits under the plan consist solely of health
insurance coverage; or
``(2) the plan provides any additional benefit options
which do not consist of health insurance coverage, the plan--
``(A) establishes and maintains reserves with respect to
such additional benefit options, in amounts recommended by
the qualified actuary, consisting of--
``(i) a reserve sufficient for unearned contributions;
``(ii) a reserve sufficient for benefit liabilities which
have been incurred, which have not been satisfied, and for
which risk of loss has not yet been transferred, and for
expected administrative costs with respect to such benefit
liabilities;
``(iii) a reserve sufficient for any other obligations of
the plan; and
``(iv) a reserve sufficient for a margin of error and other
fluctuations, taking into account the specific circumstances
of the plan; and
``(B) establishes and maintains aggregate and specific
excess/stop loss insurance and solvency indemnification, with
respect to such additional benefit options for which risk of
loss has not yet been transferred, as follows:
``(i) The plan shall secure aggregate excess/stop loss
insurance for the plan with an attachment point which is not
greater than 125 percent of expected gross annual claims. The
applicable authority may by regulation provide for upward
adjustments in the amount of such percentage in specified
circumstances in which the plan specifically provides for and
maintains reserves in excess of the amounts required under
subparagraph (A).
``(ii) The plan shall secure specific excess/stop loss
insurance for the plan with an attachment point which is at
least equal to an amount recommended by the plan's qualified
actuary. The applicable authority may by regulation provide
for adjustments in the amount of such insurance in specified
circumstances in which the plan specifically provides for and
maintains reserves in excess of the amounts required under
subparagraph (A).
``(iii) The plan shall secure indemnification insurance for
any claims which the plan is unable to satisfy by reason of a
plan termination.
Any person issuing to a plan insurance described in clause
(i), (ii), or (iii) of subparagraph (B) shall notify the
Secretary of any failure of premium payment meriting
cancellation of the policy prior to undertaking such a
cancellation. Any regulations prescribed by the applicable
authority pursuant to clause (i) or (ii) of subparagraph (B)
may allow for such adjustments in the required levels of
excess/stop loss insurance as the qualified actuary may
recommend, taking into account the specific circumstances of
the plan.
``(b) Minimum Surplus in Addition to Claims Reserves.--In
the case of any association health plan described in
subsection (a)(2), the requirements of this subsection are
met if the plan establishes and maintains surplus in an
amount at least equal to--
``(1) $500,000, or
``(2) such greater amount (but not greater than $2,000,000)
as may be set forth in regulations prescribed by the
applicable authority, considering the level of aggregate and
specific excess /stop loss insurance provided with respect to
such plan and other factors related to solvency risk, such as
the plan's projected levels of participation or claims, the
nature of the plan's liabilities, and the types of assets
available to assure that such liabilities are met.
``(c) Additional Requirements.--In the case of any
association health plan described in subsection (a)(2), the
applicable authority may provide such additional requirements
relating to reserves, excess /stop loss insurance, and
indemnification insurance as the applicable authority
considers appropriate. Such requirements may be provided by
regulation with respect to any such plan or any class of such
plans.
``(d) Adjustments for Excess /Stop Loss Insurance.--The
applicable authority may
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provide for adjustments to the levels of reserves otherwise
required under subsections (a) and (b) with respect to any
plan or class of plans to take into account excess /stop loss
insurance provided with respect to such plan or plans.
``(e) Alternative Means of Compliance.--The applicable
authority may permit an association health plan described in
subsection (a)(2) to substitute, for all or part of the
requirements of this section (except subsection
(a)(2)(B)(iii)), such security, guarantee, hold-harmless
arrangement, or other financial arrangement as the applicable
authority determines to be adequate to enable the plan to
fully meet all its financial obligations on a timely basis
and is otherwise no less protective of the interests of
participants and beneficiaries than the requirements for
which it is substituted. The applicable authority may take
into account, for purposes of this subsection, evidence
provided by the plan or sponsor which demonstrates an
assumption of liability with respect to the plan. Such
evidence may be in the form of a contract of indemnification,
lien, bonding, insurance, letter of credit, recourse under
applicable terms of the plan in the form of assessments of
participating employers, security, or other financial
arrangement.
``(f) Measures to Ensure Continued Payment of Benefits by
Certain Plans in Distress.--
``(1) Payments by certain plans to association health plan
fund.--
``(A) In general.--In the case of an association health
plan described in subsection (a)(2), the requirements of this
subsection are met if the plan makes payments into the
Association Health Plan Fund under this subparagraph when
they are due. Such payments shall consist of annual payments
in the amount of $5,000, and, in addition to such annual
payments, such supplemental payments as the Secretary may
determine to be necessary under paragraph (2). Payments under
this paragraph are payable to the Fund at the time determined
by the Secretary. Initial payments are due in advance of
certification under this part. Payments shall continue to
accrue until a plan's assets are distributed pursuant to a
termination procedure.
``(B) Penalties for failure to make payments.--If any
payment is not made by a plan when it is due, a late payment
charge of not more than 100 percent of the payment which was
not timely paid shall be payable by the plan to the Fund.
``(C) Continued duty of the secretary.--The Secretary shall
not cease to carry out the provisions of paragraph (2) on
account of the failure of a plan to pay any payment when due.
``(2) Payments by secretary to continue excess /stop loss
insurance coverage and indemnification insurance coverage for
certain plans.--In any case in which the applicable authority
determines that there is, or that there is reason to believe
that there will be--
``(A) a failure to take necessary corrective actions under
section 809(a) with respect to an association health plan
described in subsection (a)(2); or
``(B) a termination of such a plan under section 809(b) or
810(b)(8) (and, if the applicable authority is not the
Secretary, certifies such determination to the Secretary)
,the Secretary shall determine the amounts necessary to make
payments to an insurer (designated by the Secretary) to
maintain in force excess /stop loss insurance coverage or
indemnification insurance coverage for such plan, if the
Secretary determines that there is a reasonable expectation
that, without such payments, claims would not be satisfied by
reason of termination of such coverage. The Secretary shall,
to the extent provided in advance in appropriation Acts, pay
such amounts so determined to the insurer designated by the
Secretary.
``(3) Association health plan fund.--
``(A) In general.--There is established on the books of the
Treasury a fund to be known as the `Association Health Plan
Fund'. The Fund shall be available for making payments
pursuant to paragraph (2). The Fund shall be credited with
payments received pursuant to paragraph (1)(A), penalties
received pursuant to paragraph (1)(B); and earnings on
investments of amounts of the Fund under subparagraph (B).
``(B) Investment.--Whenever the Secretary determines that
the moneys of the fund are in excess of current needs, the
Secretary may request the investment of such amounts as the
Secretary determines advisable by the Secretary of the
Treasury in obligations issued or guaranteed by the United
States.
``(g) Excess /Stop Loss Insurance.--For purposes of this
section--
``(1) Aggregate excess /stop loss insurance.--The term
`aggregate excess /stop loss insurance' means, in connection
with an association health plan, a contract--
``(A) under which an insurer (meeting such minimum
standards as the applicable authority may prescribe by
regulation) provides for payment to the plan with respect to
aggregate claims under the plan in excess of an amount or
amounts specified in such contract;
``(B) which is guaranteed renewable; and
``(C) which allows for payment of premiums by any third
party on behalf of the insured plan.
``(2) Specific excess /stop loss insurance.--The term
`specific excess /stop loss insurance' means, in connection
with an association health plan, a contract--
``(A) under which an insurer (meeting such minimum
standards as the applicable authority may prescribe by
regulation) provides for payment to the plan with respect to
claims under the plan in connection with a covered individual
in excess of an amount or amounts specified in such contract
in connection with such covered individual;
``(B) which is guaranteed renewable; and
``(C) which allows for payment of premiums by any third
party on behalf of the insured plan.
``(h) Indemnification Insurance.--For purposes of this
section, the term `indemnification insurance' means, in
connection with an association health plan, a contract--
``(1) under which an insurer (meeting such minimum
standards as the applicable authority may prescribe by
regulation) provides for payment to the plan with respect to
claims under the plan which the plan is unable to satisfy by
reason of a termination pursuant to section 809(b) (relating
to mandatory termination);
``(2) which is guaranteed renewable and noncancellable for
any reason (except as the applicable authority may prescribe
by regulation); and
``(3) which allows for payment of premiums by any third
party on behalf of the insured plan.
``(i) Reserves.--For purposes of this section, the term
`reserves' means, in connection with an association health
plan, plan assets which meet the fiduciary standards under
part 4 and such additional requirements regarding liquidity
as the applicable authority may prescribe by regulation.
``(j) Solvency Standards Working Group.--
``(1) In general.--Within 90 days after the date of the
enactment of the Small Business Health Fairness Act of 2005,
the applicable authority shall establish a Solvency Standards
Working Group. In prescribing the initial regulations under
this section, the applicable authority shall take into
account the recommendations of such Working Group.
``(2) Membership.--The Working Group shall consist of not
more than 15 members appointed by the applicable authority.
The applicable authority shall include among persons invited
to membership on the Working Group at least one of each of
the following:
``(A) A representative of the National Association of
Insurance Commissioners.
``(B) A representative of the American Academy of
Actuaries.
``(C) A representative of the State governments, or their
interests.
``(D) A representative of existing self-insured
arrangements, or their interests.
``(E) A representative of associations of the type referred
to in section 801(b)(1), or their interests.
``(F) A representative of multiemployer plans that are
group health plans, or their interests.
``SEC. 807. REQUIREMENTS FOR APPLICATION AND RELATED
REQUIREMENTS.
``(a) Filing Fee.--Under the procedure prescribed pursuant
to section 802(a), an association health plan shall pay to
the applicable authority at the time of filing an application
for certification under this part a filing fee in the amount
of $5,000, which shall be available in the case of the
Secretary, to the extent provided in appropriation Acts, for
the sole purpose of administering the certification
procedures applicable with respect to association health
plans.
``(b) Information to Be Included in Application for
Certification.--An application for certification under this
part meets the requirements of this section only if it
includes, in a manner and form which shall be prescribed by
the applicable authority by regulation, at least the
following information:
``(1) Identifying information.--The names and addresses
of--
``(A) the sponsor; and
``(B) the members of the board of trustees of the plan.
``(2) States in which plan intends to do business.--The
States in which participants and beneficiaries under the plan
are to be located and the number of them expected to be
located in each such State.
``(3) Bonding requirements.--Evidence provided by the board
of trustees that the bonding requirements of section 412 will
be met as of the date of the application or (if later)
commencement of operations.
``(4) Plan documents.--A copy of the documents governing
the plan (including any bylaws and trust agreements), the
summary plan description, and other material describing the
benefits that will be provided to participants and
beneficiaries under the plan.
``(5) Agreements with service providers.--A copy of any
agreements between the plan and contract administrators and
other service providers.
``(6) Funding report.--In the case of association health
plans providing benefits options in addition to health
insurance coverage, a report setting forth information with
respect to such additional benefit options determined as of a
date within the 120-day period ending with the date of the
application, including the following:
``(A) Reserves.--A statement, certified by the board of
trustees of the plan, and a statement of actuarial opinion,
signed by a qualified actuary, that all applicable
requirements of section 806 are or will be met in accordance
with regulations which the applicable authority shall
prescribe.
``(B) Adequacy of contribution rates.--A statement of
actuarial opinion, signed by a
[[Page S1546]]
qualified actuary, which sets forth a description of the
extent to which contribution rates are adequate to provide
for the payment of all obligations and the maintenance of
required reserves under the plan for the 12-month period
beginning with such date within such 120-day period, taking
into account the expected coverage and experience of the
plan. If the contribution rates are not fully adequate, the
statement of actuarial opinion shall indicate the extent to
which the rates are inadequate and the changes needed to
ensure adequacy.
``(C) Current and projected value of assets and
liabilities.--A statement of actuarial opinion signed by a
qualified actuary, which sets forth the current value of the
assets and liabilities accumulated under the plan and a
projection of the assets, liabilities, income, and expenses
of the plan for the 12-month period referred to in
subparagraph (B). The income statement shall identify
separately the plan's administrative expenses and claims.
``(D) Costs of coverage to be charged and other expenses.--
A statement of the costs of coverage to be charged, including
an itemization of amounts for administration, reserves, and
other expenses associated with the operation of the plan.
``(E) Other information.--Any other information as may be
determined by the applicable authority, by regulation, as
necessary to carry out the purposes of this part.
``(c) Filing Notice of Certification With States.--A
certification granted under this part to an association
health plan shall not be effective unless written notice of
such certification is filed with the applicable State
authority of each State in which at least 25 percent of the
participants and beneficiaries under the plan are located.
For purposes of this subsection, an individual shall be
considered to be located in the State in which a known
address of such individual is located or in which such
individual is employed.
``(d) Notice of Material Changes.--In the case of any
association health plan certified under this part,
descriptions of material changes in any information which was
required to be submitted with the application for the
certification under this part shall be filed in such form and
manner as shall be prescribed by the applicable authority by
regulation. The applicable authority may require by
regulation prior notice of material changes with respect to
specified matters which might serve as the basis for
suspension or revocation of the certification.
``(e) Reporting Requirements for Certain Association Health
Plans.--An association health plan certified under this part
which provides benefit options in addition to health
insurance coverage for such plan year shall meet the
requirements of section 103 by filing an annual report under
such section which shall include information described in
subsection (b)(6) with respect to the plan year and,
notwithstanding section 104(a)(1)(A), shall be filed with the
applicable authority not later than 90 days after the close
of the plan year (or on such later date as may be prescribed
by the applicable authority). The applicable authority may
require by regulation such interim reports as it considers
appropriate.
``(f) Engagement of Qualified Actuary.--The board of
trustees of each association health plan which provides
benefits options in addition to health insurance coverage and
which is applying for certification under this part or is
certified under this part shall engage, on behalf of all
participants and beneficiaries, a qualified actuary who shall
be responsible for the preparation of the materials
comprising information necessary to be submitted by a
qualified actuary under this part. The qualified actuary
shall utilize such assumptions and techniques as are
necessary to enable such actuary to form an opinion as to
whether the contents of the matters reported under this
part--
``(1) are in the aggregate reasonably related to the
experience of the plan and to reasonable expectations; and
``(2) represent such actuary's best estimate of anticipated
experience under the plan.
The opinion by the qualified actuary shall be made with
respect to, and shall be made a part of, the annual report.
``SEC. 808. NOTICE REQUIREMENTS FOR VOLUNTARY TERMINATION.
``Except as provided in section 809(b), an association
health plan which is or has been certified under this part
may terminate (upon or at any time after cessation of
accruals in benefit liabilities) only if the board of
trustees, not less than 60 days before the proposed
termination date--
``(1) provides to the participants and beneficiaries a
written notice of intent to terminate stating that such
termination is intended and the proposed termination date;
``(2) develops a plan for winding up the affairs of the
plan in connection with such termination in a manner which
will result in timely payment of all benefits for which the
plan is obligated; and
``(3) submits such plan in writing to the applicable
authority.
Actions required under this section shall be taken in such
form and manner as may be prescribed by the applicable
authority by regulation.
``SEC. 809. CORRECTIVE ACTIONS AND MANDATORY TERMINATION.
``(a) Actions to Avoid Depletion of Reserves.--An
association health plan which is certified under this part
and which provides benefits other than health insurance
coverage shall continue to meet the requirements of section
806, irrespective of whether such certification continues in
effect. The board of trustees of such plan shall determine
quarterly whether the requirements of section 806 are met. In
any case in which the board determines that there is reason
to believe that there is or will be a failure to meet such
requirements, or the applicable authority makes such a
determination and so notifies the board, the board shall
immediately notify the qualified actuary engaged by the plan,
and such actuary shall, not later than the end of the next
following month, make such recommendations to the board for
corrective action as the actuary determines necessary to
ensure compliance with section 806. Not later than 30 days
after receiving from the actuary recommendations for
corrective actions, the board shall notify the applicable
authority (in such form and manner as the applicable
authority may prescribe by regulation) of such
recommendations of the actuary for corrective action,
together with a description of the actions (if any) that the
board has taken or plans to take in response to such
recommendations. The board shall thereafter report to the
applicable authority, in such form and frequency as the
applicable authority may specify to the board, regarding
corrective action taken by the board until the requirements
of section 806 are met.
``(b) Mandatory Termination.--In any case in which--
``(1) the applicable authority has been notified under
subsection (a) (or by an issuer of excess /stop loss
insurance or indemnity insurance pursuant to section 806(a))
of a failure of an association health plan which is or has
been certified under this part and is described in section
806(a)(2) to meet the requirements of section 806 and has not
been notified by the board of trustees of the plan that
corrective action has restored compliance with such
requirements; and
``(2) the applicable authority determines that there is a
reasonable expectation that the plan will continue to fail to
meet the requirements of section 806, the board of trustees
of the plan shall, at the direction of the applicable
authority, terminate the plan and, in the course of the
termination, take such actions as the applicable authority
may require, including satisfying any claims referred to in
section 806(a)(2)(B)(iii) and recovering for the plan any
liability under subsection (a)(2)(B)(iii) or (e) of section
806, as necessary to ensure that the affairs of the plan will
be, to the maximum extent possible, wound up in a manner
which will result in timely provision of all benefits for
which the plan is obligated.
``SEC. 810. TRUSTEESHIP BY THE SECRETARY OF INSOLVENT
ASSOCIATION HEALTH PLANS PROVIDING HEALTH
BENEFITS IN ADDITION TO HEALTH INSURANCE
COVERAGE.
``(a) Appointment of Secretary as Trustee for Insolvent
Plans.--Whenever the Secretary determines that an association
health plan which is or has been certified under this part
and which is described in section 806(a)(2) will be unable to
provide benefits when due or is otherwise in a financially
hazardous condition, as shall be defined by the Secretary by
regulation, the Secretary shall, upon notice to the plan,
apply to the appropriate United States district court for
appointment of the Secretary as trustee to administer the
plan for the duration of the insolvency. The plan may appear
as a party and other interested persons may intervene in the
proceedings at the discretion of the court. The court shall
appoint such Secretary trustee if the court determines that
the trusteeship is necessary to protect the interests of the
participants and beneficiaries or providers of medical care
or to avoid any unreasonable deterioration of the financial
condition of the plan. The trusteeship of such Secretary
shall continue until the conditions described in the first
sentence of this subsection are remedied or the plan is
terminated.
``(b) Powers as Trustee.--The Secretary, upon appointment
as trustee under subsection (a), shall have the power--
``(1) to do any act authorized by the plan, this title, or
other applicable provisions of law to be done by the plan
administrator or any trustee of the plan;
``(2) to require the transfer of all (or any part) of the
assets and records of the plan to the Secretary as trustee;
``(3) to invest any assets of the plan which the Secretary
holds in accordance with the provisions of the plan,
regulations prescribed by the Secretary, and applicable
provisions of law;
``(4) to require the sponsor, the plan administrator, any
participating employer, and any employee organization
representing plan participants to furnish any information
with respect to the plan which the Secretary as trustee may
reasonably need in order to administer the plan;
``(5) to collect for the plan any amounts due the plan and
to recover reasonable expenses of the trusteeship;
``(6) to commence, prosecute, or defend on behalf of the
plan any suit or proceeding involving the plan;
``(7) to issue, publish, or file such notices, statements,
and reports as may be required by the Secretary by regulation
or required by any order of the court;
``(8) to terminate the plan (or provide for its termination
in accordance with section 809(b)) and liquidate the plan
assets, to restore the plan to the responsibility of the
sponsor, or to continue the trusteeship;
[[Page S1547]]
``(9) to provide for the enrollment of plan participants
and beneficiaries under appropriate coverage options; and
``(10) to do such other acts as may be necessary to comply
with this title or any order of the court and to protect the
interests of plan participants and beneficiaries and
providers of medical care.
``(c) Notice of Appointment.--As soon as practicable after
the Secretary's appointment as trustee, the Secretary shall
give notice of such appointment to--
``(1) the sponsor and plan administrator;
``(2) each participant;
``(3) each participating employer; and
``(4) if applicable, each employee organization which, for
purposes of collective bargaining, represents plan
participants.
``(d) Additional Duties.--Except to the extent inconsistent
with the provisions of this title, or as may be otherwise
ordered by the court, the Secretary, upon appointment as
trustee under this section, shall be subject to the same
duties as those of a trustee under section 704 of title 11,
United States Code, and shall have the duties of a fiduciary
for purposes of this title.
``(e) Other Proceedings.--An application by the Secretary
under this subsection may be filed notwithstanding the
pendency in the same or any other court of any bankruptcy,
mortgage foreclosure, or equity receivership proceeding, or
any proceeding to reorganize, conserve, or liquidate such
plan or its property, or any proceeding to enforce a lien
against property of the plan.
``(f) Jurisdiction of Court.--
``(1) In general.--Upon the filing of an application for
the appointment as trustee or the issuance of a decree under
this section, the court to which the application is made
shall have exclusive jurisdiction of the plan involved and
its property wherever located with the powers, to the extent
consistent with the purposes of this section, of a court of
the United States having jurisdiction over cases under
chapter 11 of title 11, United States Code. Pending an
adjudication under this section such court shall stay, and
upon appointment by it of the Secretary as trustee, such
court shall continue the stay of, any pending mortgage
foreclosure, equity receivership, or other proceeding to
reorganize, conserve, or liquidate the plan, the sponsor, or
property of such plan or sponsor, and any other suit against
any receiver, conservator, or trustee of the plan, the
sponsor, or property of the plan or sponsor. Pending such
adjudication and upon the appointment by it of the Secretary
as trustee, the court may stay any proceeding to enforce a
lien against property of the plan or the sponsor or any other
suit against the plan or the sponsor.
``(2) Venue.--An action under this section may be brought
in the judicial district where the sponsor or the plan
administrator resides or does business or where any asset of
the plan is situated. A district court in which such action
is brought may issue process with respect to such action in
any other judicial district.
``(g) Personnel.--In accordance with regulations which
shall be prescribed by the Secretary, the Secretary shall
appoint, retain, and compensate accountants, actuaries, and
other professional service personnel as may be necessary in
connection with the Secretary's service as trustee under this
section.
``SEC. 811. STATE ASSESSMENT AUTHORITY.
``(a) In General.--Notwithstanding section 514, a State may
impose by law a contribution tax on an association health
plan described in section 806(a)(2), if the plan commenced
operations in such State after the date of the enactment of
the Small Business Health Fairness Act of 2005.
``(b) Contribution Tax.--For purposes of this section, the
term `contribution tax' imposed by a State on an association
health plan means any tax imposed by such State if--
``(1) such tax is computed by applying a rate to the amount
of premiums or contributions, with respect to individuals
covered under the plan who are residents of such State, which
are received by the plan from participating employers located
in such State or from such individuals;
``(2) the rate of such tax does not exceed the rate of any
tax imposed by such State on premiums or contributions
received by insurers or health maintenance organizations for
health insurance coverage offered in such State in connection
with a group health plan;
``(3) such tax is otherwise nondiscriminatory; and
``(4) the amount of any such tax assessed on the plan is
reduced by the amount of any tax or assessment otherwise
imposed by the State on premiums, contributions, or both
received by insurers or health maintenance organizations for
health insurance coverage, aggregate excess /stop loss
insurance (as defined in section 806(g)(1)), specific excess
/stop loss insurance (as defined in section 806(g)(2)), other
insurance related to the provision of medical care under the
plan, or any combination thereof provided by such insurers or
health maintenance organizations in such State in connection
with such plan.
``SEC. 812. DEFINITIONS AND RULES OF CONSTRUCTION.
``(a) Definitions.--For purposes of this part--
``(1) Group health plan.--The term `group health plan' has
the meaning provided in section 733(a)(1) (after applying
subsection (b) of this section).
``(2) Medical care.--The term `medical care' has the
meaning provided in section 733(a)(2).
``(3) Health insurance coverage.--The term `health
insurance coverage' has the meaning provided in section
733(b)(1).
``(4) Health insurance issuer.--The term `health insurance
issuer' has the meaning provided in section 733(b)(2).
``(5) Applicable authority.--The term `applicable
authority' means the Secretary, except that, in connection
with any exercise of the Secretary's authority regarding
which the Secretary is required under section 506(d) to
consult with a State, such term means the Secretary, in
consultation with such State.
``(6) Health status-related factor.--The term `health
status-related factor' has the meaning provided in section
733(d)(2).
``(7) Individual market.--
``(A) In general.--The term `individual market' means the
market for health insurance coverage offered to individuals
other than in connection with a group health plan.
``(B) Treatment of very small groups.--
``(i) In general.--Subject to clause (ii), such term
includes coverage offered in connection with a group health
plan that has fewer than 2 participants as current employees
or participants described in section 732(d)(3) on the first
day of the plan year.
``(ii) State exception.--Clause (i) shall not apply in the
case of health insurance coverage offered in a State if such
State regulates the coverage described in such clause in the
same manner and to the same extent as coverage in the small
group market (as defined in section 2791(e)(5) of the Public
Health Service Act) is regulated by such State.
``(8) Participating employer.--The term `participating
employer' means, in connection with an association health
plan, any employer, if any individual who is an employee of
such employer, a partner in such employer, or a self-employed
individual who is such employer (or any dependent, as defined
under the terms of the plan, of such individual) is or was
covered under such plan in connection with the status of such
individual as such an employee, partner, or self-employed
individual in relation to the plan.
``(9) Applicable state authority.--The term `applicable
State authority' means, with respect to a health insurance
issuer in a State, the State insurance commissioner or
official or officials designated by the State to enforce the
requirements of title XXVII of the Public Health Service Act
for the State involved with respect to such issuer.
``(10) Qualified actuary.--The term `qualified actuary'
means an individual who is a member of the American Academy
of Actuaries.
``(11) Affiliated member.--The term `affiliated member'
means, in connection with a sponsor--
``(A) a person who is otherwise eligible to be a member of
the sponsor but who elects an affiliated status with the
sponsor,
``(B) in the case of a sponsor with members which consist
of associations, a person who is a member of any such
association and elects an affiliated status with the sponsor,
or
``(C) in the case of an association health plan in
existence on the date of the enactment of the Small Business
Health Fairness Act of 2005, a person eligible to be a member
of the sponsor or one of its member associations.
``(12) Large employer.--The term `large employer' means, in
connection with a group health plan with respect to a plan
year, an employer who employed an average of at least 51
employees on business days during the preceding calendar year
and who employs at least 2 employees on the first day of the
plan year.
``(13) Small employer.--The term `small employer' means, in
connection with a group health plan with respect to a plan
year, an employer who is not a large employer.
``(b) Rules of Construction.--
``(1) Employers and employees.--For purposes of determining
whether a plan, fund, or program is an employee welfare
benefit plan which is an association health plan, and for
purposes of applying this title in connection with such plan,
fund, or program so determined to be such an employee welfare
benefit plan--
``(A) in the case of a partnership, the term `employer' (as
defined in section 3(5)) includes the partnership in relation
to the partners, and the term `employee' (as defined in
section 3(6)) includes any partner in relation to the
partnership; and
``(B) in the case of a self-employed individual, the term
`employer' (as defined in section 3(5)) and the term
`employee' (as defined in section 3(6)) shall include such
individual.
``(2) Plans, funds, and programs treated as employee
welfare benefit plans.--In the case of any plan, fund, or
program which was established or is maintained for the
purpose of providing medical care (through the purchase of
insurance or otherwise) for employees (or their dependents)
covered thereunder and which demonstrates to the Secretary
that all requirements for certification under this part would
be met with respect to such plan, fund, or program if such
plan, fund, or program were a group health plan, such plan,
fund, or program shall be treated for purposes of this title
as an employee welfare benefit plan on and after the date of
such demonstration.''.
(b) Conforming Amendments to Preemption Rules.--
(1) Section 514(b)(6) of such Act (29 U.S.C. 1144(b)(6)) is
amended by adding at the end the following new subparagraph:
[[Page S1548]]
``(E) The preceding subparagraphs of this paragraph do not
apply with respect to any State law in the case of an
association health plan which is certified under part 8.''.
(2) Section 514 of such Act (29 U.S.C. 1144) is amended--
(A) in subsection (b)(4), by striking ``Subsection (a)''
and inserting ``Subsections (a) and (d)'';
(B) in subsection (b)(5), by striking ``subsection (a)'' in
subparagraph (A) and inserting ``subsection (a) of this
section and subsections (a)(2)(B) and (b) of section 805'',
and by striking ``subsection (a)'' in subparagraph (B) and
inserting ``subsection (a) of this section or subsection
(a)(2)(B) or (b) of section 805'';
(C) by redesignating subsection (d) as subsection (e); and
(D) by inserting after subsection (c) the following new
subsection:
``(d)(1) Except as provided in subsection (b)(4), the
provisions of this title shall supersede any and all State
laws insofar as they may now or hereafter preclude, or have
the effect of precluding, a health insurance issuer from
offering health insurance coverage in connection with an
association health plan which is certified under part 8.
``(2) Except as provided in paragraphs (4) and (5) of
subsection (b) of this section--
``(A) In any case in which health insurance coverage of any
policy type is offered under an association health plan
certified under part 8 to a participating employer operating
in such State, the provisions of this title shall supersede
any and all laws of such State insofar as they may preclude a
health insurance issuer from offering health insurance
coverage of the same policy type to other employers operating
in the State which are eligible for coverage under such
association health plan, whether or not such other employers
are participating employers in such plan.
``(B) In any case in which health insurance coverage of any
policy type is offered in a State under an association health
plan certified under part 8 and the filing, with the
applicable State authority (as defined in section 812(a)(9)),
of the policy form in connection with such policy type is
approved by such State authority, the provisions of this
title shall supersede any and all laws of any other State in
which health insurance coverage of such type is offered,
insofar as they may preclude, upon the filing in the same
form and manner of such policy form with the applicable State
authority in such other State, the approval of the filing in
such other State.
``(3) Nothing in subsection (b)(6)(E) or the preceding
provisions of this subsection shall be construed, with
respect to health insurance issuers or health insurance
coverage, to supersede or impair the law of any State--
``(A) providing solvency standards or similar standards
regarding the adequacy of insurer capital, surplus, reserves,
or contributions, or
``(B) relating to prompt payment of claims.
``(4) For additional provisions relating to association
health plans, see subsections (a)(2)(B) and (b) of section
805.
``(5) For purposes of this subsection, the term
`association health plan' has the meaning provided in section
801(a), and the terms `health insurance coverage',
`participating employer', and `health insurance issuer' have
the meanings provided such terms in section 812,
respectively.''.
(3) Section 514(b)(6)(A) of such Act (29 U.S.C.
1144(b)(6)(A)) is amended--
(A) in clause (i)(II), by striking ``and'' at the end;
(B) in clause (ii), by inserting ``and which does not
provide medical care (within the meaning of section
733(a)(2)),'' after ``arrangement,'', and by striking
``title.'' and inserting ``title, and''; and
(C) by adding at the end the following new clause:
``(iii) subject to subparagraph (E), in the case of any
other employee welfare benefit plan which is a multiple
employer welfare arrangement and which provides medical care
(within the meaning of section 733(a)(2)), any law of any
State which regulates insurance may apply.''.
(4) Section 514(e) of such Act (as redesignated by
paragraph (2)(C)) is amended--
(A) by striking ``Nothing'' and inserting ``(1) Except as
provided in paragraph (2), nothing''; and
(B) by adding at the end the following new paragraph:
``(2) Nothing in any other provision of law enacted on or
after the date of the enactment of the Small Business Health
Fairness Act of 2005 shall be construed to alter, amend,
modify, invalidate, impair, or supersede any provision of
this title, except by specific cross-reference to the
affected section.''.
(c) Plan Sponsor.--Section 3(16)(B) of such Act (29 U.S.C.
102(16)(B)) is amended by adding at the end the following new
sentence: ``Such term also includes a person serving as the
sponsor of an association health plan under part 8.''.
(d) Disclosure of Solvency Protections Related to Self-
Insured and Fully Insured Options Under Association Health
Plans.--Section 102(b) of such Act (29 U.S.C. 102(b)) is
amended by adding at the end the following: ``An association
health plan shall include in its summary plan description, in
connection with each benefit option, a description of the
form of solvency or guarantee fund protection secured
pursuant to this Act or applicable State law, if any.''.
(e) Savings Clause.--Section 731(c) of such Act is amended
by inserting ``or part 8'' after ``this part''.
(f) Report to Congress Regarding Certification of Self-
Insured Association Health Plans.--Not later than January 1,
2010, the Secretary of Labor shall report to the Committee on
Health, Education, Labor, and Pensions of the Senate and the
Committee on Education and the Workforce of the House of
Representatives the effect association health plans have had,
if any, on reducing the number of uninsured individuals.
(g) Clerical Amendment.--The table of contents in section 1
of the Employee Retirement Income Security Act of 1974 is
amended by inserting after the item relating to section 734
the following new items:
``Part 8--Rules Governing Association Health Plans
``801. Association health plans.
``802. Certification of association health plans.
``803. Requirements relating to sponsors and boards of trustees.
``804. Participation and coverage requirements.
``805. Other requirements relating to plan documents, contribution
rates, and benefit options.
``806. Maintenance of reserves and provisions for solvency for plans
providing health benefits in addition to health insurance
coverage.
``807. Requirements for application and related requirements.
``808. Notice requirements for voluntary termination.
``809. Corrective actions and mandatory termination.
``810. Trusteeship by the Secretary of insolvent association health
plans providing health benefits in addition to health
insurance coverage.
``811. State assessment authority.
``812. Definitions and rules of construction.''.
SEC. 3. CLARIFICATION OF TREATMENT OF SINGLE EMPLOYER
ARRANGEMENTS.
Section 3(40)(B) of the Employee Retirement Income Security
Act of 1974 (29 U.S.C. 1002(40)(B)) is amended--
(1) in clause (i), by inserting after ``control group,''
the following: ``except that, in any case in which the
benefit referred to in subparagraph (A) consists of medical
care (as defined in section 812(a)(2)), 2 or more trades or
businesses, whether or not incorporated, shall be deemed a
single employer for any plan year of such plan, or any fiscal
year of such other arrangement, if such trades or businesses
are within the same control group during such year or at any
time during the preceding 1-year period,'';
(2) in clause (iii), by striking ``(iii) the
determination'' and inserting the following:
``(iii)(I) in any case in which the benefit referred to in
subparagraph (A) consists of medical care (as defined in
section 812(a)(2)), the determination of whether a trade or
business is under `common control' with another trade or
business shall be determined under regulations of the
Secretary applying principles consistent and coextensive with
the principles applied in determining whether employees of 2
or more trades or businesses are treated as employed by a
single employer under section 4001(b), except that, for
purposes of this paragraph, an interest of greater than 25
percent may not be required as the minimum interest necessary
for common control, or
``(II) in any other case, the determination'';
(3) by redesignating clauses (iv) and (v) as clauses (v)
and (vi), respectively; and
(4) by inserting after clause (iii) the following new
clause:
``(iv) in any case in which the benefit referred to in
subparagraph (A) consists of medical care (as defined in
section 812(a)(2)), in determining, after the application of
clause (i), whether benefits are provided to employees of 2
or more employers, the arrangement shall be treated as having
only one participating employer if, after the application of
clause (i), the number of individuals who are employees and
former employees of any one participating employer and who
are covered under the arrangement is greater than 75 percent
of the aggregate number of all individuals who are employees
or former employees of participating employers and who are
covered under the arrangement,''.
SEC. 4. ENFORCEMENT PROVISIONS RELATING TO ASSOCIATION HEALTH
PLANS.
(a) Criminal Penalties for Certain Willful
Misrepresentations.--Section 501 of the Employee Retirement
Income Security Act of 1974 (29 U.S.C. 1131) is amended--
(1) by inserting ``(a)'' after ``Sec. 501.''; and
(2) by adding at the end the following new subsection:
``(b) Any person who willfully falsely represents, to any
employee, any employee's beneficiary, any employer, the
Secretary, or any State, a plan or other arrangement
established or maintained for the purpose of offering or
providing any benefit described in section 3(1) to employees
or their beneficiaries as--
``(1) being an association health plan which has been
certified under part 8;
``(2) having been established or maintained under or
pursuant to one or more collective bargaining agreements
which are reached pursuant to collective bargaining described
in section 8(d) of the National Labor Relations Act (29
U.S.C. 158(d)) or paragraph Fourth of section 2 of the
Railway Labor Act (45 U.S.C. 152, paragraph Fourth) or which
[[Page S1549]]
are reached pursuant to labor-management negotiations under
similar provisions of State public employee relations laws;
or
``(3) being a plan or arrangement described in section
3(40)(A)(i), shall, upon conviction, be imprisoned not more
than 5 years, be fined under title 18, United States Code, or
both.''.
(b) Cease Activities Orders.--Section 502 of such Act (29
U.S.C. 1132) is amended by adding at the end the following
new subsection:
``(n) Association Health Plan Cease and Desist Orders.--
``(1) In general.--Subject to paragraph (2), upon
application by the Secretary showing the operation,
promotion, or marketing of an association health plan (or
similar arrangement providing benefits consisting of medical
care (as defined in section 733(a)(2))) that--
``(A) is not certified under part 8, is subject under
section 514(b)(6) to the insurance laws of any State in which
the plan or arrangement offers or provides benefits, and is
not licensed, registered, or otherwise approved under the
insurance laws of such State; or
``(B) is an association health plan certified under part 8
and is not operating in accordance with the requirements
under part 8 for such certification, a district court of the
United States shall enter an order requiring that the plan or
arrangement cease activities.
``(2) Exception.--Paragraph (1) shall not apply in the case
of an association health plan or other arrangement if the
plan or arrangement shows that--
``(A) all benefits under it referred to in paragraph (1)
consist of health insurance coverage; and
``(B) with respect to each State in which the plan or
arrangement offers or provides benefits, the plan or
arrangement is operating in accordance with applicable State
laws that are not superseded under section 514.
``(3) Additional equitable relief.--The court may grant
such additional equitable relief, including any relief
available under this title, as it deems necessary to protect
the interests of the public and of persons having claims for
benefits against the plan.''.
(c) Responsibility for Claims Procedure.--Section 503 of
such Act (29 U.S.C. 1133) is amended by inserting ``(a) In
general.--'' before ``In accordance'', and by adding at the
end the following new subsection:
``(b) Association Health Plans.--The terms of each
association health plan which is or has been certified under
part 8 shall require the board of trustees or the named
fiduciary (as applicable) to ensure that the requirements of
this section are met in connection with claims filed under
the plan.''.
SEC. 5. COOPERATION BETWEEN FEDERAL AND STATE AUTHORITIES.
Section 506 of the Employee Retirement Income Security Act
of 1974 (29 U.S.C. 1136) is amended by adding at the end the
following new subsection:
``(d) Consultation With States With Respect to Association
Health Plans.--
``(1) Agreements with states.--The Secretary shall consult
with the State recognized under paragraph (2) with respect to
an association health plan regarding the exercise of--
``(A) the Secretary's authority under sections 502 and 504
to enforce the requirements for certification under part 8;
and
``(B) the Secretary's authority to certify association
health plans under part 8 in accordance with regulations of
the Secretary applicable to certification under part 8.
``(2) Recognition of primary domicile state.--In carrying
out paragraph (1), the Secretary shall ensure that only one
State will be recognized, with respect to any particular
association health plan, as the State with which consultation
is required. In carrying out this paragraph--
``(A) in the case of a plan which provides health insurance
coverage (as defined in section 812(a)(3)), such State shall
be the State with which filing and approval of a policy type
offered by the plan was initially obtained, and
``(B) in any other case, the Secretary shall take into
account the places of residence of the participants and
beneficiaries under the plan and the State in which the trust
is maintained.''.
SEC. 6. EFFECTIVE DATE AND TRANSITIONAL AND OTHER RULES.
(a) Effective Date.--The amendments made by this Act shall
take effect one year after the date of the enactment of this
Act. The Secretary of Labor shall first issue all regulations
necessary to carry out the amendments made by this Act within
one year after the date of the enactment of this Act.
(b) Treatment of Certain Existing Health Benefits
Programs.--
(1) In general.--In any case in which, as of the date of
the enactment of this Act, an arrangement is maintained in a
State for the purpose of providing benefits consisting of
medical care for the employees and beneficiaries of its
participating employers, at least 200 participating employers
make contributions to such arrangement, such arrangement has
been in existence for at least 10 years, and such arrangement
is licensed under the laws of one or more States to provide
such benefits to its participating employers, upon the filing
with the applicable authority (as defined in section
812(a)(5) of the Employee Retirement Income Security Act of
1974 (as amended by this subtitle)) by the arrangement of an
application for certification of the arrangement under part 8
of subtitle B of title I of such Act--
(A) such arrangement shall be deemed to be a group health
plan for purposes of title I of such Act;
(B) the requirements of sections 801(a) and 803(a) of the
Employee Retirement Income Security Act of 1974 shall be
deemed met with respect to such arrangement;
(C) the requirements of section 803(b) of such Act shall be
deemed met, if the arrangement is operated by a board of
directors which--
(i) is elected by the participating employers, with each
employer having one vote; and
(ii) has complete fiscal control over the arrangement and
which is responsible for all operations of the arrangement;
(D) the requirements of section 804(a) of such Act shall be
deemed met with respect to such arrangement; and
(E) the arrangement may be certified by any applicable
authority with respect to its operations in any State only if
it operates in such State on the date of certification.
The provisions of this subsection shall cease to apply with
respect to any such arrangement at such time after the date
of the enactment of this Act as the applicable requirements
of this subsection are not met with respect to such
arrangement.
(2) Definitions.--For purposes of this subsection, the
terms ``group health plan'', ``medical care'', and
``participating employer'' shall have the meanings provided
in section 812 of the Employee Retirement Income Security Act
of 1974, except that the reference in paragraph (7) of such
section to an ``association health plan'' shall be deemed a
reference to an arrangement referred to in this subsection.
Mr. BOND. Mr. President, with approximately 45 million uninsured
Americans, expanding access to quality, affordable health care should
be a top priority for the Senate. We hear about the cost explosion that
insurance companies are imposing on small businesses and how small
business owners are now finding it virtually impossible to provide the
health insurance coverage that they, as well as their employees, need.
No one is harder hit by large premium increases than small business--
studies indicate more than 60 percent of these uninsured Americans
either work for a small business or are dependent upon someone who
does. As health care costs skyrocket and place more and more small
business employees in jeopardy of losing their health benefits, it
becomes more important that Congress turn its attention to the
uninsured and act in a swift and bipartisan manner to address this
problem.
Today we are here to offer hope to the millions of uninsured. Today
we are here to talk about a solution that can help millions of small
business employees access the same type of health care that their
counterparts in large corporations and unions already enjoy.
The solution to this problem is to allow small businesses across the
country to pool together and access health insurance through their
membership with a bona fide trade or professional organization. This
will provide small businesses the same opportunities as other large
insurance purchasers. These Association Health Plans, AHPs, would
reduce costs through greater economies of scale to spread costs and
risk, increase group bargaining power with large insurance companies,
and generate more insurance options for small businesses.
AHPs are not a new idea. They have been talked about, bandied about,
argued about and compromised about for almost a decade. And during that
period, what was once thought to be a manageable problem--became the
crisis that we have today. Had we passed AHP legislation, we would not
be seeing the problems we see today for small business.
The principle underpinning AHPs is simple. This is the same principle
that makes it cheaper to buy your soda by the case instead of by
individual cans. Bulk purchasing is why large companies and unions can
get better rates for their employees than small businesses and it is
about time that we bring Fortune 500 style health benefits to the
Nation's Main Street small businesses and their employees.
In the words of President Bush, ``It makes no sense in America, to
isolate small businesses as little health care islands unto
themselves.'' AHPs will mean more coverage for the employees of these
companies, especially their families and children.
It is time that we take control and find a way to curtail the
explosive costs of health care. Small businesses deserve a chance to
channel these funds toward other needs, such as expanding and creating
more jobs for the
[[Page S1550]]
economy. Association Health Plans will level the playing field and
break down the barriers that prevent small businesses from providing
health insurance.
I commend Senator Snowe for taking the lead on this critical issue
and for using her position as chairwomen of the Small Business
Committee to advance the number one health care priority of the small
business community. With the support of President Bush, the Department
of Labor, the Small Business Administration, and a broad and diverse
coalition of over 100 groups, I hope that this bill will more quickly.
For the sake of small businesses throughout this country, their
employees, and their families we must pass AHP legislation. We must
bring fortune 500 health care to small business. The time to act is
now. I thank Senators Snowe and Talent for their leadership, dedication
and commitment on behalf of small business, and I look forward to
working with them to pass Association Health Plans legislation in the
Senate.
______
By Mr. DeWINE (for himself, Mr. Dodd, Mr. Hagel, Mr. Warner, Mr.
Corzine, Mr. Lieberman, Mr. Lautenberg, Ms. Landrieu, Mr.
Jeffords, and Mr. Salazar):
S. 408. A bill to provide for programs and activities with respect to
the prevention of underage drinking; to the Committee on Health,
Education, Labor, and Pensions.
Mr. DeWINE. Mr. President, I rise today, along with my good friend
and colleague Senator Dodd, to reintroduce the Sober Truth on
Preventing Underage Drinking Act--also known as the STOP Underage
Drinking Act. I thank Senator Dodd for his commitment to this issue, as
well as our colleagues on the House side--Representatives Roybal-
Allard, Wolf, Osborne, DeLauro, and Wamp for working so diligently with
us to draft this bill. It is a good bill--a carefully crafted, bi-
partisan, bi-cameral piece of legislation.
I also want to thank the additional Senate co-sponsors of this
legislation--Senators Hagel, Warner, Lieberman, Lautenberg, Landrieu,
Corzine, Jeffords, and Salazar. I thank them for their support. They
know that underage drinking is a serious, and often deadly, problem for
our Nation's children and youth and that we have to do something about
it.
In September 2003, I chaired a HELP Subcommittee hearing about
underage drinking. As we discussed at that hearing, it is well known
that underage drinking is a significant problem for youth in this
country. We've known that for a very long time.
We know that underage drinking often contributes to the four leading
causes of deaths among 15 to 20 year olds--that 69 percent of youths
who died in alcohol-related traffic fatalities in the year 2000
involved young drinking drivers and that in 1999, nearly 40 percent of
people under the age of 21 who were victims of drownings, burns, and
falls tested positive for alcohol. We also know that alcohol has been
reported to be involved in 36 percent of homicides, 12 percent of male
suicides, and 8 percent of female suicides involving people under 21.
How did we get here. These statistics are frightening. Too many
American kids are drinking regularly, and they are drinking in
quantities that can be of great, long-term harm. As a nation, we
clearly haven't done enough to address this problem. We haven't done
enough to acknowledge how prevalent and widespread teenage drinking is
in this country. We haven't done enough to let parents know that they,
too, are a part of this problem and can be a part of the solution.
We talk about drugs and the dangers of drug use, as we should, but
the reality is that we, as a society, have become complacent about the
problem of underage drinking. This has to change. The culture has to
change.
One way to begin changing this culture is with the STOP Underage
Drinking Act. Our legislation has four major areas of policy
development:
First, there is a federal coordination and reporting provision. This
title would create an Interagency Coordinating Committee to coordinate
the efforts and expertise of various federal agencies to combat
underage drinking. It would be chaired by the Secretary of Health and
Human Services and would include other agencies and departments, such
as the Department of Education, the Office of Juvenile Justice and
Delinquency Prevention, and the Federal Trade Commission. This title
also would mandate an annual report to Congress from the Interagency
Committee on their efforts to combat underage drinking, as well as an
annual report card on State efforts to combat the problem. Two million
dollars annually would be appropriated under this section.
Second, the bill contains an authorization for an adult-oriented
national media campaign against underage drinking. This title would
provide $1 million in fiscal years 2006 and 2007 to authorize a
national media campaign for which the Ad Council has received start up
funding. The campaign is expected to launch in August of this year.
Third, the bill would support new intervention programs to prevent
underage drinking. This section of the bill would provide $5 million
for enhancement grants to the Drug Free Communities program to be
directed at the problem of underage drinking. This title also would
create a program which would provide competitive grants to states, non-
profit entities, and institutions of higher education to create state-
wide coalitions to prevent underage drinking. These grants will work to
change the culture of underage drinking at our Nation's institutions of
higher education and their surrounding communities. This program would
be funded at $5 million annually, as well.
Finally, our bill contains a section devoted to research. This title
would provide $6 million for increased federal research and data
collection on underage drinking, including reporting on the types and
brands of alcohol that kids use and the short-term and long-term
impacts of underage drinking upon adolescent brain development.
Again, I thank Senator Dodd for working with me on this issue here in
the Senate, and I look forward to continuing to work with my colleagues
in the House and Senate to pass this very important bill.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 408
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Sober
Truth on Preventing Underage Drinking Act'', or the ``STOP
Underage Drinking Act''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings.
Sec. 3. Definitions.
TITLE I--SENSE OF CONGRESS
Sec. 101. Sense of Congress.
TITLE II--INTERAGENCY COORDINATING COMMITTEE; ANNUAL REPORT CARD
Sec. 201. Establishment of interagency coordinating committee to
prevent underage drinking.
Sec. 202. Annual report card.
Sec. 203. Authorization of appropriations.
TITLE III--NATIONAL MEDIA CAMPAIGN
Sec. 301. National media campaign to prevent underage drinking.
TITLE IV--INTERVENTIONS
Sec. 401. Community-based coalition enhancement grants to prevent
underage drinking.
Sec. 402. Grants directed at reducing higher-education alcohol abuse.
TITLE V--ADDITIONAL RESEARCH
Sec. 501. Additional research on underage drinking.
Sec. 502. Authorization of appropriations.
SEC. 2. FINDINGS.
The Congress finds as follows:
(1) Drinking alcohol under the age of 21 is illegal in each
of the 50 States and the District of Columbia. Enforcement of
current laws and regulations in States and communities, such
as minimum age drinking laws, zero tolerance laws, and laws
and regulations which restrict availability of alcohol, must
supplement other efforts to reduce underage drinking.
(2) Data collected annually by the Department of Health and
Human Services shows that alcohol is the most heavily used
drug by children in the United States, and that--
(A) more youths consume alcoholic beverages than use
tobacco products or illegal drugs;
(B) by the end of the eighth grade, 45.6 percent of
children have engaged in alcohol use,
[[Page S1551]]
and by the end of high school, 76.6 percent have done so; and
(C) the annual societal cost of underage drinking is
estimated at $53 to $58 billion.
(3) Data collected by the Department of Health and Human
Services and the Department of Transportation indicate that
alcohol use by youth has many negative consequences, such as
immediate risk from acute impairment; traffic fatalities;
violence; suicide; and unprotected sex.
(4) Research confirms that the harm caused by underage
drinking lasts beyond the underage years. Compared to persons
who wait until age 21 or older to start drinking, those who
start to drink before age 14 are, as adults, four times more
likely to become alcohol dependent; seven times more likely
to be in a motor vehicle crash because of drinking; and more
likely to suffer mental and physical damage from alcohol
abuse.
(5) Alcohol abuse creates long-term risk developmentally
and is associated with negative physical impacts on the
brain.
(6) Research indicates that adults greatly underestimate
the extent of alcohol use by youths, its negative
consequences, and its use by their own children. The IOM
report concluded that underage drinking cannot be
successfully addressed by focusing on youth alone.
Ultimately, adults are responsible for young people obtaining
alcohol by selling, providing, or otherwise making it
available to them. Parents are the most important channel of
influence on their children's underage drinking, according to
the IOM report, which also recommends a national adult-
oriented media campaign.
(7) Research shows that public service health messages, in
combination with community-based efforts, can reduce health-
damaging behavior. The Department of Health and Human
Services and the Ad Council have undertaken a public health
campaign targeted at parents to combat underage alcohol
consumption. The Ad Council estimates that, for a typical
public health campaign, it receives an average of $28 million
per year in free media through its 28,000 media outlets
nationwide.
(8) A significant percentage of the total alcohol
consumption in the United States each year is by underage
youth. The Substance Abuse and Mental Health Services
Administration reports that the percentage is over 11
percent.
(9) Youth are exposed to a significant amount of alcohol
advertising through a variety of media. Some studies indicate
that youth awareness of alcohol advertising correlates to
their drinking behavior and beliefs.
(10) According to the Center on Alcohol Marketing and
Youth, in 2002, the alcoholic beverage industry spent
$927,900,000 on product advertising on television, and
$24,700,000 on television advertising designed to promote the
responsible use of alcohol. For every one television ad
discouraging underage alcohol use, there were 215 product
ads.
(11) Alcohol use occurs in 76 percent of movies rated G or
PG and 97 percent of movies rated PG-13. The Federal Trade
Commission has recommended restricting paid alcohol beverage
promotional placements to films rated R or NC-17.
(12) Youth spend 9 to 11 hours per week listening to music,
and 17 percent of all lyrics contain alcohol references; 30
percent of those songs include brand-name mentions.
(13) Studies show that adolescents watch 20 to 27 hours of
television each week, and 71 percent of prime-time television
episodes depict alcohol use and 77 percent contain some
reference to alcohol.
(14) College and university presidents have cited alcohol
abuse as the number one health problem on college and
university campuses.
(15) According to the National Institute on Alcohol Abuse
and Alcoholism, two of five college students are binge
drinkers; 1,400 college students die each year from alcohol-
related injuries, a majority of which involve motor vehicle
crashes; more than 70,000 students are victims of alcohol-
related sexual assault; and 500,000 students are injured
under the influence of alcohol each year.
(16) According to the Center on Alcohol Marketing and
Youth, in 2002, alcohol producers spent a total of $58
million to place 6,251 commercials in college sports
programs, and spent $27.7 million advertising during the NCAA
men's basketball tournament, which had as many alcohol ads
(939) as the Super Bowl, World Series, College Bowl Games and
the National Football League's Monday Night Football
broadcasts combined (925).
(17) The IOM report recommended that colleges and
universities ban alcohol advertising and promotion on campus
in order to demonstrate their commitment to discouraging
alcohol use among underage students.
(18) According to the Government Accountability Office
(``GAO''), the Federal Government spends $1.8 billion
annually to combat youth drug use and $71 million to prevent
underage alcohol use.
(19) The GAO concluded that there is a lack of reporting
about how these funds are specifically expended, inadequate
collaboration among the agencies, and no central coordinating
group or office to oversee how the funds are expended or to
determine the effectiveness of these efforts.
(20) There are at least three major, annual, government
funded national surveys in the United States that include
underage drinking data: the National Household Survey on Drug
Use and Health, Monitoring the Future, and the Youth Risk
Behavior Survey. These surveys do not use common indicators
to allow for direct comparison of youth alcohol consumption
patterns. Analyses of recent years' data do, however, show
similar results.
(21) Research shows that school-based and community-based
interventions can reduce underage drinking and associated
problems, and that positive outcomes can be achieved by
combining environmental and institutional change with theory-
based health education--a comprehensive, community-based
approach.
(22) Studies show that a minority of youth who need
treatment for their alcohol problems receive such services.
Further, insufficient information exists to properly assist
clinicians and other providers in their youth treatment
efforts.
SEC. 3. DEFINITIONS.
For purposes of this Act:
(1) The term ``binge drinking'' means a pattern of drinking
alcohol that brings blood alcohol concentration (BAC) to 0.08
gm percent or above. For the typical adult, this pattern
corresponds to consuming 5 or more drinks (male), or 4 or
more drinks (female), in about 2 hours.
(2) The term ``heavy drinking'' means five or more drinks
on the same occasion in the past 30 days.
(3) The term ``frequent heavy drinking'' means five or more
drinks on at least five occasions in the last 30 days.
(4) The term ``alcoholic beverage industry'' means the
brewers, vintners, distillers, importers, distributors, and
retail outlets that sell and serve beer, wine, and distilled
spirits.
(5) The term ``school-based prevention'' means programs,
which are institutionalized, and run by staff members or
school-designated persons or organizations in every grade of
school, kindergarten through 12th grade.
(6) The term ``youth'' means persons under the age of 21.
(7) The term ``IOM report'' means the report released in
September 2003 by the National Research Council, Institute of
Medicine, and entitled ``Reducing Underage Drinking: A
Collective Responsibility''.
TITLE I--SENSE OF CONGRESS
SEC. 101. SENSE OF CONGRESS.
It is the sense of the Congress that:
(1) A multi-faceted effort is needed to more successfully
address the problem of underage drinking in the United
States. A coordinated approach to prevention, intervention,
treatment, and research is key to making progress. This Act
recognizes the need for a focused national effort, and
addresses particulars of the Federal portion of that effort.
(2) States and communities, including colleges and
universities, are encouraged to adopt comprehensive
prevention approaches, including--
(A) evidence-based screening, programs and curricula;
(B) brief intervention strategies;
(C) consistent policy enforcement; and
(D) environmental changes that limit underage access to
alcohol.
(3) Public health and consumer groups have played an
important role in drawing the Nation's attention to the
health crisis of underage drinking. Working at the Federal,
State, and community levels, and motivated by grass-roots
support, they have initiated effective prevention programs
that have made significant progress in the battle against
underage drinking.
(4) The alcohol beverage industry has developed and paid
for national education and awareness messages on illegal
underage drinking directed to parents as well as consumers
generally. According to the industry, it has also supported
the training of more than 1.6 million retail employees,
community-based prevention programs, point of sale education,
and enforcement programs. All of these efforts are aimed at
further reducing illegal underage drinking and preventing
sales of alcohol to persons under the age of 21. All sectors
of the alcohol beverage industry have also voluntarily
committed to placing advertisements in broadcast and
magazines where at least 70 percent of the audiences are
expected to be 21 years of age or older. The industry should
continue to monitor and tailor its advertising practices to
further limit underage exposure, including the use of
independent third party review. The industry should continue
and expand evidence-based efforts to prevent underage
drinking.
(5) Public health and consumer groups, in collaboration
with the alcohol beverage industry, should explore
opportunities to reduce underage drinking.
(6) The entertainment industries have a powerful impact on
youth, and they should use rating systems and marketing codes
to reduce the likelihood that underage audiences will be
exposed to movies, recordings, or television programs with
unsuitable alcohol content, even if adults are expected to
predominate in the viewing or listening audiences.
(7) Objective scientific evidence and data should be
generated and made available to the general public and policy
makers at the local, state, and national levels to help them
make informed decisions, implement judicious policies, and
monitor progress in preventing childhood/adolescent alcohol
use.
(8) The National Collegiate Athletic Association, its
member colleges and universities, and athletic conferences
should affirm a commitment to a policy of discouraging
alcohol use among underage students and
[[Page S1552]]
other young fans by ending all alcohol advertising during
radio and television broadcasts of collegiate sporting
events.
TITLE II--INTERAGENCY COORDINATING COMMITTEE; ANNUAL REPORT CARD
SEC. 201. ESTABLISHMENT OF INTERAGENCY COORDINATING COMMITTEE
TO PREVENT UNDERAGE DRINKING.
(a) In General.--The Secretary of Health and Human
Services, in collaboration with the Federal officials
specified in subsection (b), shall establish an interagency
coordinating committee focusing on underage drinking
(referred to in this section as the ``Committee'').
(b) Other Agencies.--The officials referred to in
subsection (a) are the Secretary of Education, the Attorney
General, the Secretary of Transportation, the Secretary of
the Treasury, the Secretary of Defense, the Surgeon General,
the Director of the Centers for Disease Control and
Prevention, the Director of the National Institute on Alcohol
Abuse and Alcoholism, the Administrator of the Substance
Abuse and Mental Health Services Administration, the Director
of the National Institute on Drug Abuse, the Assistant
Secretary for Children and Families, the Director of the
Office of National Drug Control Policy, the Administrator of
the National Highway Traffic Safety Administration, the
Administrator of the Office of Juvenile Justice and
Delinquency Prevention, the Chairman of the Federal Trade
Commission, and such other Federal officials as the Secretary
of Health and Human Services determines to be appropriate.
(c) Chair.--The Secretary of Health and Human Services
shall serve as the chair of the Committee.
(d) Duties.--The Committee shall guide policy and program
development across the Federal Government with respect to
underage drinking.
(e) Consultations.--The Committee shall actively seek the
input of and shall consult with all appropriate and
interested parties, including public health research and
interest groups, foundations, and alcohol beverage industry
trade associations and companies.
(f) Annual Report.--
(1) In general.--The Secretary of Health and Human
Services, on behalf of the Committee, shall annually submit
to the Congress a report that summarizes--
(A) all programs and policies of Federal agencies designed
to prevent underage drinking;
(B) the extent of progress in reducing underage drinking
nationally;
(C) data that the Secretary shall collect with respect to
the information specified in paragraph (2); and
(D) such other information regarding underage drinking as
the Secretary determines to be appropriate.
(2) Certain information.--The report under paragraph (1)
shall include information on the following:
(A) Patterns and consequences of underage drinking.
(B) Measures of the availability of alcohol to underage
populations and the exposure of this population to messages
regarding alcohol in advertising and the entertainment media.
(C) Surveillance data, including information on the onset
and prevalence of underage drinking.
(D) Any additional findings resulting from research
conducted or supported under section 501.
(E) Evidence-based best practices to both prevent underage
drinking and provide treatment services to those youth who
need them.
SEC. 202. ANNUAL REPORT CARD.
(a) In General.--The Secretary of Health and Human Services
(referred to in this section as the ``Secretary'') shall,
with input and collaboration from other appropriate Federal
agencies, States, Indian tribes, territories, and public
health, consumer, and alcohol beverage industry groups,
annually issue a ``report card'' to accurately rate the
performance of each state in enacting, enforcing, and
creating laws, regulations, and programs to prevent or reduce
underage drinking. The report card shall include ratings on
outcome measures for categories related to the prevalence of
underage drinking in each State.
(b) Outcome Measures.--
(1) In general.--The Secretary shall develop, in
consultation with the Committee established in section 201, a
set of outcome measures to be used in preparing the report
card.
(2) Categories.--In developing the outcome measures, the
Secretary shall develop measures for categories related to
the following:
(A) The degree of strictness of the minimum drinking age
laws and dram shop liability statutes in each State.
(B) The number of compliance checks within alcohol retail
outlets conducted measured against the number of total
alcohol retail outlets in each State, and the results of such
checks.
(C) Whether or not the State mandates or otherwise provides
training on the proper selling and serving of alcohol for all
sellers and servers of alcohol as a condition of employment.
(D) Whether or not the State has policies and regulations
with regard to Internet sales and home delivery of alcoholic
beverages.
(E) The number of adults in the State targeted by State
programs to deter adults from purchasing alcohol for minors.
(F) The number of youths, parents, and caregivers who are
targeted by State programs designed to deter underage
drinking.
(G) Whether or not the State has enacted graduated drivers
licenses and the extent of those provisions.
(H) The amount that the State invests, per youth capita, on
the prevention of underage drinking, further broken down by
the amount spent on--
(i) compliance check programs in retail outlets, including
providing technology to prevent and detect the use of false
identification by minors to make alcohol purchases;
(ii) checkpoints;
(iii) community-based, school-based, and higher-education-
based programs to prevent underage drinking;
(iv) underage drinking prevention programs that target
youth within the juvenile justice and child welfare systems;
and
(v) other State efforts or programs as deemed appropriate.
SEC. 203. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated to carry out this
title $2,000,000 for fiscal year 2006, and such sums as may
be necessary for each of the fiscal years 2007 through 2010.
TITLE III--NATIONAL MEDIA CAMPAIGN
SEC. 301. NATIONAL MEDIA CAMPAIGN TO PREVENT UNDERAGE
DRINKING.
(a) Scope of the Campaign.--The Secretary of Health and
Human Services shall continue to fund and oversee the
production, broadcasting, and evaluation of the Ad Council's
national adult-oriented media public service campaign.
(b) Report.--The Secretary of Health and Human Services
shall provide a report to the Congress annually detailing the
production, broadcasting, and evaluation of the campaign
referred to in subsection (a), and to detail in the report
the effectiveness of the campaign in reducing underage
drinking, the need for and likely effectiveness of an
expanded adult-oriented media campaign, and the feasibility
and the likely effectiveness of a national youth-focused
media campaign to combat underage drinking.
(c) Consultation Requirement.--In carrying out the media
campaign, the Secretary of Health and Human Services shall
direct the Ad Council to consult with interested parties
including both the alcohol beverage industry and public
health and consumer groups. The progress of this consultative
process is to be covered in the report under subsection (b).
(d) Authorization of Appropriations.--There are authorized
to be appropriated to carry out this section, $1,000,000 for
each of the fiscal years 2006 and 2007, and such sums as may
be necessary for each subsequent fiscal year.
TITLE IV--INTERVENTIONS
SEC. 401. COMMUNITY-BASED COALITION ENHANCEMENT GRANTS TO
PREVENT UNDERAGE DRINKING.
(a) Authorization of Program.--The Director of the Office
of National Drug Control Policy shall award ``enhancement
grants'' to eligible entities to design, test, evaluate and
disseminate strategies to maximize the effectiveness of
community-wide approaches to preventing and reducing underage
drinking.
(b) Purposes.--The purposes of this section are, in
conjunction with the Drug-Free Communities Act of 1997 (21
U.S.C. 1521 et seq.), to--
(1) reduce alcohol use among youth in communities
throughout the United States;
(2) strengthen collaboration among communities, the Federal
Government, and State, local, and tribal governments;
(3) enhance intergovernmental cooperation and coordination
on the issue of alcohol use among youth;
(4) serve as a catalyst for increased citizen participation
and greater collaboration among all sectors and organizations
of a community that first demonstrates a long-term commitment
to reducing alcohol use among youth;
(5) disseminate to communities timely information regarding
state-of-the-art practices and initiatives that have proven
to be effective in reducing alcohol use among youth; and
(6) enhance, not supplant, local community initiatives for
reducing alcohol use among youth.
(c) Application.--An eligible entity desiring an
enhancement grant under this section shall submit an
application to the Director at such time, and in such manner,
and accompanied by such information as the Director may
require. Each application shall include--
(1) a complete description of the entity's current underage
alcohol use prevention initiatives and how the grant will
appropriately enhance the focus on underage drinking issues;
or
(2) a complete description of the entity's current
initiatives, and how it will use this grant to enhance those
initiatives by adding a focus on underage drinking
prevention.
(d) Uses of Funds.--Each eligible entity that receives a
grant under this section shall use the grant funds to carry
out the activities described in such entity's application
submitted pursuant to subsection (c). Grants under this
section shall not exceed $50,000 per year, and may be awarded
for each year the entity is funded as per subsection (f).
(e) Supplement Not Supplant.--Grant funds provided under
this section shall be used to supplement, not supplant,
Federal and non-Federal funds available for carrying out the
activities described in this section.
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(f) Definitions.--For purposes of this section, the term
``eligible entity'' means an organization that is currently
eligible to receive grant funds under the Drug-Free
Communities Act of 1997 (21 U.S.C. 1521 et seq.).
(g) Administrative Expenses.--Not more than 6 percent of a
grant under this section may be expended for administrative
expenses.
(h) Authorization of Appropriations.--There are authorized
to be appropriated to carry out this section $5,000,000 for
fiscal year 2006, and such sums as may be necessary for each
of the fiscal years 2007 through 2010.
SEC. 402. GRANTS DIRECTED AT REDUCING HIGHER-EDUCATION
ALCOHOL ABUSE.
(a) Authorization of Program.--The Secretary shall award
grants to eligible entities to enable the entities to reduce
the rate of underage alcohol use and binge drinking among
students at institutions of higher education.
(b) Applications.--An eligible entity that desires to
receive a grant under this Act shall submit an application to
the Secretary at such time, in such manner, and accompanied
by such information as the Secretary may require. Each
application shall include--
(1) a description of how the eligible entity will work to
enhance an existing, or where none exists to build a,
statewide coalition;
(2) a description of how the eligible entity will target
underage students in the State;
(3) a description of how the eligible entity intends to
ensure that the statewide coalition is actually implementing
the purpose of this Act and moving toward indicators
described in section (d);
(4) a list of the members of the statewide coalition or
interested parties involved in the work of the eligible
entity;
(5) a description of how the eligible entity intends to
work with State agencies on substance abuse prevention and
education;
(6) the anticipated impact of funds provided under this Act
in reducing the rates of underage alcohol use;
(7) outreach strategies, including ways in which the
eligible entity proposes to--
(A) reach out to students;
(B) promote the purpose of this Act;
(C) address the range of needs of the students and the
surrounding communities; and
(D) address community norms for underage students regarding
alcohol use; and
(8) such additional information as required by the
Secretary.
(c) Uses of Funds.--Each eligible entity that receives a
grant under this section shall use the grant funds to carry
out the activities described in such entity's application
submitted pursuant to subsection (b).
(d) Accountability.--On the date on which the Secretary
first publishes a notice in the Federal Register soliciting
applications for grants under this section, the Secretary
shall include in the notice achievement indicators for the
program authorized under this section. The achievement
indicators shall be designed--
(1) to measure the impact that the statewide coalitions
assisted under this Act are having on the institutions of
higher education and the surrounding communities, including
changes in the number of alcohol incidents of any kind
(including violations, physical assaults, sexual assaults,
reports of intimidation, disruptions of school functions,
disruptions of student studies, mental health referrals,
illnesses, or deaths);
(2) to measure the quality and accessibility of the
programs or information offered by the statewide coalitions;
and
(3) to provide such other measures of program impact as the
Secretary determines appropriate.
(e) Supplement Not Supplant.--Grant funds provided under
this Act shall be used to supplement, and not supplant,
Federal and non-Federal funds available for carrying out the
activities described in this section.
(f) Definitions.--For purposes of this section:
(1) Eligible entity.--The term ``eligible entity'' means a
State, institution of higher education, or nonprofit entity.
(2) Institution of higher education.--The term
``institution of higher education'' has the meaning given the
term in section 101(a) of the Higher Education Act of 1965
(20 U.S.C. 1001(a)).
(3) Secretary.--The term ``Secretary'' means the Secretary
of Education.
(4) State.--The term ``State'' means each of the 50 States,
the District of Columbia, and the Commonwealth of Puerto
Rico.
(5) Statewide coalition.--The term ``statewide coalition''
means a coalition that--
(A) includes--
(i) institutions of higher education within a State; and
(ii) a nonprofit group, a community underage drinking
prevention coalition, or another substance abuse prevention
group within a State; and
(B) works toward lowering the alcohol abuse rate by
targeting underage students at institutions of higher
education throughout the State and in the surrounding
communities.
(6) Surrounding community.--The term ``surrounding
community'' means the community--
(A) that surrounds an institution of higher education
participating in a statewide coalition;
(B) where the students from the institution of higher
education take part in the community; and
(C) where students from the institution of higher education
live in off-campus housing.
(g) Administrative Expenses.--Not more than 5 percent of a
grant under this section may be expended for administrative
expenses.
(h) Authorization of Appropriations.--There are authorized
to be appropriated to carry out this section $5,000,000 for
fiscal year 2006, and such sums as may be necessary for each
of the fiscal years 2007 through 2010.
TITLE V--ADDITIONAL RESEARCH
SEC. 501. ADDITIONAL RESEARCH ON UNDERAGE DRINKING.
(a) In General.--The Secretary of Health and Human Services
shall collect data on, and conduct or support research on,
underage drinking with respect to the following:
(1) The short and long-range impact of alcohol use and
abuse upon adolescent brain development and other organ
systems.
(2) Comprehensive community-based programs or strategies
and statewide systems to prevent underage drinking, across
the underage years from early childhood to young adulthood,
including programs funded and implemented by government
entities, public health interest groups and foundations, and
alcohol beverage companies and trade associations.
(3) Improved knowledge of the scope of the underage
drinking problem and progress in preventing and treating
underage drinking.
(4) Annually obtain more precise information than is
currently collected on the type and quantity of alcoholic
beverages consumed by underage drinkers, as well as
information on brand preferences of these drinkers and their
exposure to alcohol advertising.
(b) Certain Matters.--The Secretary of Health and Human
Services shall carry out activities toward the following
objectives with respect to underage drinking:
(1) Testing every unnatural death of persons ages 12 to 20
in the United States for alcohol involvement, including
suicides, homicides, and unintentional injuries such as
falls, drownings, burns, poisonings, and motor vehicle crash
deaths.
(2) Obtaining new epidemiological data within the National
Epidemiological Study on Alcoholism and Related Conditions
and other national or targeted surveys that identify alcohol
use and attitudes about alcohol use during pre- and early
adolescence, including second-hand effects of adolescent
alcohol use such as date rapes, violence, risky sexual
behavior, and prenatal alcohol exposure.
(3) Developing or identifying successful clinical
treatments for youth with alcohol problems.
SEC. 502. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated to carry out
section 501 $6,000,000 for fiscal year 2006, and such sums as
may be necessary for each of the fiscal years 2007 through
2010.
MR. DODD. Mr. President, I rise today with my colleague, Senator Mike
DeWine, to reintroduce legislation designed to prevent our nation's
children and youth from succumbing to the dangers associated with
underage alcohol use. The legislation that we introduce today, the
STOP, Sober Truth On Preventing, Underage Drinking Act, will greatly
strengthen our Nation's ability to combat the too often deadly
consequences associated with underage drinking.
An initial examination, of the problems presented by underage
drinking is truly alarming. Alcohol is the most commonly used drug
among America's youth. More young people drink alcohol than smoke
tobacco or use marijuana combined. In 2002, 20 percent of eighth
graders had drunk alcohol in the previous 30 days. Forty-nine percent
of high school seniors are drinkers, and 29 percent report having had
five or more drinks in a row, or binged in the past two weeks.
Tragically, we know that this year underage drinking will directly
lead to more than 3,500 deaths, more than two million injuries, 1,200
babies born with fetal alcohol syndrome and more than 50,000 youths
treated for alcohol dependence. We also know that the social costs
associated with underage drinking total close to $53 billion annually,
including $19 billion from automobile accidents and $29 billion from
associated violent crime.
And while no one can argue with the tragic loss of life and
significant financial costs associated with underage drinking, too few
of us think of the equally devastating loss of potential that occurs
when our children begin to drink. Research indicates that children who
begin drinking do so at only 12 years of age. We also know that
children that begin drinking at such an early age develop a
predisposition for alcohol dependence later in life. Such early
experimentation can have devastating consequences and derail a child's
potential just as she or he is starting out on the path to adulthood.
The consumption of alcohol by our children can literally rob them of
their future.
The truly alarming and devastating effects of underage alcohol use
are
[[Page S1554]]
what initially led Senator DeWine and I to begin work to address this
important issue. Since that time we have worked extensively with
Representatives Roybal-Allard, Wolf, DeLauro, Osbourne and Wamp to
craft the broad legislative initiative that we introduce today.
The STOP Underage Drinking Act creates the framework for a
multifaceted, comprehensive national campaign to prevent underage
drinking. Specifically, the legislation includes four major areas of
policy development. First, the STOP Underage Drinking Act authorizes $2
million to establish an Interagency Coordinating Committee to
coordinate all federal agency efforts and expertise designed to prevent
underage drinking. Chaired by the Secretary of Health and
Human Services, this committee will be required to report to the
Congress on an annual basis the extent to which federal efforts are
addressing the urgent need to curb underage drinking.
I am particularly pleased that one of the many items in this annual
report to Congress will provide for the public health monitoring of the
amount of alcohol advertising reaching our children. I have become
increasingly concerned about the degree to which alcohol advertisements
appear to target our Nation's children. It is my hope that the
monitoring called for by this legislation will expose any unethical
advertising practices that reach children. We must do all that we can
to ensure that our children are not exposed to harmful and deceptive
alcohol promotions.
In addition to the federal coordination of federal underage drinking
prevention efforts, the STOP Underage Drinking Act additionally
authorizes $1 million to fund an adult-oriented National Media Campaign
against Underage Drinking. Research indicates that most children who
drink obtain the alcohol from their parents or from other adults. The
National Media Campaign against underage drinking will specifically
seek to educate those who provide our children with alcohol about the
dangers inherent in underage alcohol use. This media campaign will
build upon the valuable underage drinking prevention efforts already
underway by the Ad Council, whose campaigns average an estimated $28
million in donated media from media outlets nationwide.
The legislation additionally authorizes $10 million to provide
states, not-for-profit groups and institutions of higher education the
ability to create statewide coalitions to prevent underage drinking and
alcohol abuse by college and university students. This section will
also provide alcohol-specific enhancement grants through the Drug Free
Communities program.
Lastly, the STOP Underage Drinking Act authorizes $6 million to
expand research to assess the health effects of underage drinking on
adolescent development, including its effect on the brain. This effort
will additionally increase federal data collection on underage
drinking, including reporting on the types and brands of alcohol that
kids consume.
I want to convey my belief that this legislation truly offers a
historical, first step toward addressing the national tragedy
represented by underage drinking. I pledge to work strenuously toward
passing the STOP Underage Drinking Act and building on its strong
foundation and I ask for the support of my colleagues for this
critically important initiative.
______
By Mr. COLEMAN (for himself, Mr. DeWine, and Mr. Alexander):
S. 409. A bill to establish a Federal Youth Development Council to
improve the administration and coordination of Federal programs serving
youth, and for other purposes; to the Committee on Health, Education,
Labor, and Pensions.
Mr. COLEMAN. 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.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 409
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Federal Youth Coordination
Act''.
SEC. 2. ESTABLISHMENT AND MEMBERSHIP.
(a) Members and Terms.--There is established the Federal
Youth Development Council (in this Act referred to as the
``Council'') composed of--
(1) the Attorney General, the Secretary of Agriculture, the
Secretary of Labor, the Secretary of Health and Human
Services, Secretary of Housing and Urban Development, the
Secretary of Education, the Secretary of the Interior, the
Secretary of Commerce, the Secretary of Defense, the
Secretary of Homeland Security, the Director of National Drug
Control Policy, the Director of the Office of Management and
Budget, the Assistant to the President for Domestic Policy,
the Director of the U.S.A. Freedom Corps, the Deputy
Assistant to the President and Director of the Office of
Faith-Based and Community Initiatives, and the Chief
Executive Officer of the Corporation for National and
Community Service, and other Federal officials as directed by
the President, to serve for the life of the Council; and
(2) such additional members as the President, in
consultation with the majority and minority leadership of the
House of Representatives and the Senate, shall appoint from
among representatives of faith-based organizations, community
based organizations, child and youth focused foundations,
universities, non-profit organizations, youth service
providers, State and local government, and youth in
disadvantaged situations, to serve for terms of 2 years and
who may be reappointed by the President for a second 2-year
term.
(b) Chairperson.--The Chairperson of the Council shall be
designated by the President.
(c) Meetings.--The Council shall meet at the call of the
Chairperson, not less frequently than 4 times each year. The
first meeting shall be not less than 6 months after the date
of enactment of this Act.
SEC. 3. DUTIES OF THE COUNCIL.
The duties of the Council shall be--
(1) to ensure communication among agencies administering
programs designed to serve youth, especially those in
disadvantaged situations;
(2) to assess the needs of youth, especially those in
disadvantaged situations, and those who work with youth, and
the quantity and quality of Federal programs offering
services, supports, and opportunities to help
[[Page S1555]]
youth in their educational, social, emotional, physical,
vocational, and civic development;
(3) to set objectives and quantifiable 5-year goals for
such programs;
(4) to make recommendations for the allocation of resources
in support of such goals and objectives;
(5) to identify target populations of youth who are
disproportionately at risk and assist agencies in focusing
additional resources on them;
(6) to develop a plan, including common indicators of youth
well-being, and assist agencies in coordinating to achieve
such goals and objectives;
(7) to assist Federal agencies, at the request of one or
more such agency, in collaborating on model programs and
demonstration projects focusing on special populations,
including youth in foster care, migrant youth, projects to
promote parental involvement, and projects that work to
involve young people in service programs;
(8) to solicit and document ongoing input and
recommendations from--
(A) youth, especially those in disadvantaged situations, by
forming an advisory council of youth to work with the
Council;
(B) national youth development experts, parents, faith and
community-based organizations, foundations, business leaders,
youth service providers, and teachers;
(C) researchers; and
(D) State and local government officials; and
(9) to work with Federal agencies to conduct high-quality
research and evaluation, identify and replicate model
programs, and provide technical assistance, and, subject to
the availability of appropriations, to fund additional
research to fill identified needs.
SEC. 4. ASSISTANCE OF STAFF.
(a) Director and Staff.--The Chairperson, in consultation
with the Council, shall employ and set the rate of pay for a
Director and any necessary staff to assist in carrying out
its duties.
(b) Staff of Federal Agencies.--Upon request of the
Council, the head of any Federal department or agency may
detail, on a reimbursable basis, any of the personnel of that
department or agency to the Council to assist it in carrying
out its duties under this Act.
SEC. 5. POWERS OF THE COUNCIL.
(a) Mails.--The Council may use the United States mails in
the same manner and under the same conditions as other
departments and agencies of the United States.
(b) Administrative Support Services.--Upon the request of
the Council, the Administrator of General Services shall
provide to the Council, on a reimbursable basis, the
administrative support services necessary for the Council to
carry out its responsibilities under this Act.
SEC. 6. ASSISTANCE TO STATES.
(a) In General.--Subject to the availability of
appropriations, the Council may provide technical assistance
and make grants to States to support State councils for
coordinating State youth efforts.
(b) Applications.--Applicants for grants must be States.
Applications for grants under this section shall be submitted
at such time and in such form as determined by the Council.
(c) Priority.--Priority for grants will be given to States
that--
(1) have already initiated an interagency coordination
effort focused on youth;
(2) plan to work with at least 1 locality to support a
local youth council for coordinating local youth efforts;
(3) demonstrate the inclusion of nonprofit organizations,
including faith-based and community-based organizations, in
the work of the State council; and
(4) demonstrate the inclusion of young people, especially
those in disadvantaged situations, in the work of the State
council.
SEC. 7. REPORT.
Not later than 1 year after the Council holds its first
meeting, and on an annual basis for a period of 4 years
thereafter, the Council shall transmit to the President and
to Congress a report of the findings and recommendations of
the Council. The report shall--
(1) include a comprehensive compilation of recent research
and statistical reporting by various Federal agencies on the
overall wellbeing of youth;
(2) include the assessment of the needs of youth and those
who serve them, the goals and objectives, the target
populations of at-risk youth, and the plan called for in
section 3;
(3) report on the link between quality of service
provision, technical assistance and successful youth outcomes
and recommend ways to coordinate and improve Federal training
and technical assistance, information sharing, and
communication among the various programs and agencies serving
youth;
(4) include recommendations to better integrate and
coordinate policies across agencies at the Federal, State,
and local levels, including recommendations for legislation
and administrative actions;
(5) include a summary of actions the Council has taken at
the request of Federal agencies to facilitate collaboration
and coordination on youth serving programs and the results of
those collaborations, if available; and
(6) include a summary of the input and recommendations from
the groups identified in section 3(8).
SEC. 8. TERMINATION.
The Council shall terminate 60 days after transmitting its
fifth and final report pursuant to section 6.
SEC. 9. AUTHORIZATION OF APPROPRIATIONS.
There is authorized to be appropriated for fiscal years
2005 through 2009 such sums as may be necessary to carry out
this Act.
______
By Mr. McCAIN:
S. 410. A bill to authorize the extension of nondiscriminatory
treatment (normal trade relations treatment) to the products of
Ukraine; to the Committee on Finance.
Mr. McCAIN. Mr. President, the recent ``Orange Revolution'' in
Ukraine marked a huge victory for the advancement of democracy in the
world. The Ukrainian people made clear that they would not stand idle
as a corrupt regime sought to deny them their democratic rights. Now
that the people of Ukraine have seized control of their destiny, the
United States must stand ready to assist them as they do the hard work
of consolidating democracy. The Jackson-Vanik amendment is, with
respect to Ukraine, now anachronistic and inappropriate. Therefore, I
am pleased to introduce legislation that would terminate it.
The bill would authorize the President to terminate the application
of Jackson-Vanik, Title IV of the Trade Act of 1974, to Ukraine.
Ukraine would then be eligible to receive permanent normal trade
relations (PNTR) tariff status in its trade with the United States. I
am pleased to note that Representatives Hyde and Lantos will be
introducing an identical bill in the House.
Beyond any benefits to our bilateral trading relationship, lifting
Jackson-Vanik for Ukraine constitutes an important symbol of Ukraine's
new democracy and its relationship with the United States. I led a
delegation of four Senators and six representatives to Kiev last week;
where we met with President Yuschenko, Prime Minister Tymoshenko, and
students who led protests in Independence Square. I was struck by the
great enthusiasm for democracy and freedom that has taken hold in
Ukraine, and I wish the new leaders all the best a they begin the
challenge of governing. I pledged to them that I would work toward the
lifting of Jackson-Vanik on Ukraine, and today I am happy to take the
first step toward that end.
______
By Mrs. MURRAY (for herself and Ms. Cantwell):
S. 411. A bill to amend title XVIII of the Social Security Act to
improve the provisions of items and services provided to Medicare
beneficiaries residing in States with more cost-effective health care
delivery systems; to the Committee on Finance.
Mrs. MURRAY. Mr. President, I rise today to again join my colleague,
Senator Cantwell, in introducing the MediFair Act of 2005. My bill will
restore fairness to the Medicare program and provide greater equity for
health providers participating in Medicare. Most importantly, it will
open doors of care to more seniors and the disabled in my State.
Today, in Washington state, unfair Medicare reimbursement rates are
causing doctors to limit their care for Medicare beneficiaries.
Throughout my State, seniors and the disabled are having a hard time
finding a doctor who will accept new Medicare patients.
Unfortunately, the Medicare Modernization Act, enacted in 2003,
creates even greater inequities for my State. Prior to enactment,
Washington State was 41st in per beneficiary reimbursement costs. When
fully implemented, this legislation will push Washington State to 45th
in per beneficiary costs. This growing inequity places health care
providers in my State at an economic disadvantage and further limits
access to health care for Washington patients.
My bill will reduce the regional inequities that have resulted in
vastly different levels of care and access to care by ensuring that
every state receives at least the national average of per beneficiary
spending. This measure will encourage more doctors to accept Medicare
patients and will also guarantee that seniors are not penalized when
they choose to retire in the State of Washington. The regional
inequities in Medicare reimbursement have created a very different
program for my seniors, one that offers them fewer benefits.
[[Page S1556]]
In addition to ensuring that no state receives less than the national
average, my legislation will encourage healthy outcomes and the
efficient use of Medicare payments. The current Medicare structure
punishes health care providers who practice efficient health care and
who produce higher levels of healthy outcomes. Physicians and hospitals
in my state are proud of the pioneering role they have played in
providing high quality, cost-effective medicine. Unfortunately, instead
of being rewarded for their exceptional service, they are being
punished with unfair Medicare payments that only cover a fraction of
their actual costs.
I applaud recent efforts by the Centers for Medicare and Medicaid
Services (CMS) to direct Medicare resources to performance-based
medicine. I believe this effort to reward providers who practice
performance-based health care is an important step forward. It's a wise
investment to shift Medicare from a disease-based program, which
rewards over utilization and medical errors, to a prevention-based
program that encourages healthy outcomes based on performance. It will
mean better care for seniors and will slow the hemorrhaging of Medicare
dollars. I am hopeful that CMS will expand these efforts.
Performance-based medicine will also begin to close the gap in
Medicare reimbursement. We must invest in this new approach and begin
to make changes system wide. In the 2003 Medicare Modernization Act, we
worked to close the gap between rural and urban providers. I believe it
is time to take the next step. When doctors and hospitals work to
improve outcomes and lower utilization rates they should not be
punished with unfair Medicare payments.
I want to acknowledge the lead sponsor of the MediFair bill in the
House, Congressman Adam Smith, as well as the other House cosponsors,
Congressman Baird, Congressman McDermott, Congressman Dicks,
Congressman Inslee, and Congressman Larsen.
I ask unanimous consent that the text of bill be printed in the
Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 411
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``MediFair Act of 2005''.
SEC. 2. FINDINGS.
Congress makes the following findings:
(1) Regional inequities in medicare reimbursement has
created barriers to care for seniors and the disabled.
(2) The regional inequities in medicare reimbursement
penalize States that have cost-effective health care delivery
systems and rewards those States with high utilization rates
and that provide inefficient care.
(3) Over a lifetime, those inequities can mean as much as a
$50,000 difference in the cost of care provided per
beneficiary.
(4) Regional inequities have resulted in creating very
different medicare programs for seniors and the disabled
based on where they live.
(5) Because the Medicare+Choice rate is based on the fee-
for-service reimbursement rate, regional inequities have
allowed some medicare beneficiaries access to plans with
significantly more benefits including prescription drugs.
Beneficiaries in States with lower reimbursement rates have
not benefitted to the same degree as beneficiaries in other
parts of the country.
(6) Regional inequities in medicare reimbursement have
created an unfair competitive advantage for hospitals and
other health care providers in States that receive above
average payments. Higher payments mean that those providers
can pay higher salaries in a tight, competitive market.
(7) Regional inequities in medicare reimbursement can limit
timely access to new technology for beneficiaries in States
with lower reimbursement rates.
(8) Regional inequities in medicare reimbursement, if left
unchecked, will reduce access to medicare services and impact
healthy outcomes for beneficiaries.
(9) Regional inequities in medicare reimbursement are not
just a rural versus urban problem. Many States with large
urban centers are at the bottom of the national average for
per beneficiary costs.
SEC. 3. IMPROVING FAIRNESS OF PAYMENTS TO PROVIDERS UNDER THE
MEDICARE FEE-FOR-SERVICE PROGRAM.
Title XVIII of the Social Security Act (42 U.S.C. 1395 et
seq.) is amended by adding at the end the following new
section:
``IMPROVING PAYMENT EQUITY UNDER THE ORIGINAL MEDICARE FEE-FOR-SERVICE
PROGRAM
``Sec. 1898. (a) Establishment of System.--Notwithstanding
any other provision of law, the Secretary shall establish a
system for making adjustments to the amount of payment made
to entities and individuals for items and services provided
under the original medicare fee-for-service program under
parts A and B.
``(b) System Requirements.--
``(1) Increase for states below the national average.--
Under the system established under subsection (a), if a State
average per beneficiary amount for a year is less than the
national average per beneficiary amount for such year, then
the Secretary (beginning in 2006) shall increase the amount
of applicable payments in such a manner as will result (as
estimated by the Secretary) in the State average per
beneficiary amount for the subsequent year being equal to the
national average per beneficiary amount for such subsequent
year.
``(2) Reduction for certain states above the national
average to enhance quality care and maintain budget
neutrality.--
``(A) In general.--The Secretary shall ensure that the
increase in payments under paragraph (1) does not cause the
estimated amount of expenditures under this title for a year
to increase or decrease from the estimated amount of
expenditures under this title that would have been made in
such year if this section had not been enacted by reducing
the amount of applicable payments in each State that the
Secretary determines has--
``(i) a State average per beneficiary amount for a year
that is greater than the national average per beneficiary
amount for such year; and
``(ii) healthy outcome measurements or quality care
measurements that indicate that a reduction in applicable
payments would encourage more efficient use of, and reduce
overuse of, items and services for which payment is made
under this title.
``(B) Limitation.--The Secretary shall not reduce
applicable payments under subparagraph (A) to a State that--
``(i) has a State average per beneficiary amount for a year
that is greater than the national average per beneficiary
amount for such year; and
``(ii) has healthy outcome measurements or quality care
measurements that indicate that the applicable payments are
being used to improve the access of beneficiaries to quality
care.
``(3) Determination of averages.--
``(A) State average per beneficiary amount.--Each year
(beginning in 2005), the Secretary shall determine a State
average per beneficiary amount for each State which shall be
equal to the Secretary's estimate of the average amount of
expenditures under the original medicare fee-for-service
program under parts A and B for the year for a beneficiary
enrolled under such parts that resides in the State.
``(B) National average per beneficiary amount.--Each year
(beginning in 2005), the Secretary shall determine the
national average per beneficiary amount which shall be equal
to the average of the State average per beneficiary amount
determined under subparagraph (A) for the year.
``(4) Definitions.--In this section:
``(A) Applicable payments.--The term `applicable payments'
means payments made to entities and individuals for items and
services provided under the original medicare fee-for-service
program under parts A and B to beneficiaries enrolled under
such parts that reside in the State.
``(B) State.--The term `State' has the meaning given such
term in section 210(h).
``(c) Beneficiaries Held Harmless.--The provisions of this
section shall not affect--
``(1) the entitlement to items and services of a
beneficiary under this title, including the scope of such
items and services; or
``(2) any liability of the beneficiary with respect to such
items and services.
``(d) Regulations.--
``(1) In general.--The Secretary, in consultation with the
Medicare Payment Advisory Commission, shall promulgate
regulations to carry out this section.
``(2) Protecting rural communities.--In promulgating the
regulations pursuant to paragraph (1), the Secretary shall
give special consideration to rural areas.''.
SEC. 4. MEDPAC RECOMMENDATIONS ON HEALTHY OUTCOMES AND
QUALITY CARE.
(a) Recommendations.--The Medicare Payment Advisory
Commission established under section 1805 of the Social
Security Act (42 U.S.C. 1395b-6) shall develop
recommendations on policies and practices that, if
implemented, would encourage--
(1) healthy outcomes and quality care under the medicare
program in States with respect to which payments are reduced
under section 1898(b)(2) of such Act (as added by section 3);
and
(2) the efficient use of payments made under the medicare
program in such States.
(b) Submission.--Not later than the date that is 9 months
after the date of enactment of this Act, the Commission shall
submit to Congress the recommendations developed under
subsection (a).
______
By Mr. DORGAN (for himself and Mr. Inouye):
S. 412. A bill to reauthorize the Native American Programs Act of
1974; to the Committee on Indian Affairs.
Mr. DORGAN. Mr. President, I rise today to introduce a bill that
would reauthorize the Native American Programs Act. This Act provides
authority
[[Page S1557]]
for the social and economic development grants that are so critical to
Indian Country. Senator Inouye joins me in sponsoring this measure.
The Native American Programs Act of 1974 is administered by the
Administration for Native Americans (ANA) within the Department of
Health and Human Services. The purpose of the Act is to promote
economic and social self-sufficiency by assisting Native American
institutions and tribal governments to exercise control and decision
making over their own resources; to foster the development of stable,
diversified local tribal economies and economic activities that provide
jobs, promote economic well-being, and reduce dependency on public
funds and social services; and to support access, control and
coordination of services and programs that safeguard the health and
well-being of native people that are essential to their communities.
The ANA awards annual grants to tribal entities on a competitive
basis and provides many native communities with critical startup funds
for social, governance, economic, environmental, and cultural programs
that are developed by the communities themselves. The program addresses
key needs for native communities by helping them begin and expand
businesses, enhancing tribal ability to promote natural environments,
and preserving and restoring native languages. The Native American
Programs Act supports Native American self-governance in the
development of economic, social, and governance capacities of Native
American communities.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 412
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. NATIVE AMERICAN PROGRAMS ACT OF 1974.
(a) Intra-Departmental Council on Native American
Affairs.--Section 803B(d)(1) of the Native American Programs
Act of 1974 (42 U.S.C. 2991b-2(d)(1)) is amended by striking
``There'' and all that follows and inserting the following:
``There is established in the Office of the Secretary the
Intra-Departmental Council on Native American Affairs. The
Commissioner and the Director of the Indian Health Service
shall serve as co-chairpersons of the Council. The co-
chairpersons shall advise the Secretary on all matters
affecting Native Americans that involve the Department.''.
(b) Authorization of Appropriations.--Section 816 of the
Native American Programs Act of 1974 (42 U.S.C. 2992d) is
amended--
(1) by striking subsections (a) through (c) and inserting
the following:
``(a) In General.--There are authorized to be
appropriated--
``(1) to carry out section 803(d), $8,000,000 for each of
fiscal years 2006 through 2010; and
``(2) to carry out provisions of this title other than
section 803(d) and any other provision having an express
authorization of appropriations, such sums as are necessary
for each of fiscal years 2006 through 2010.
``(b) Limitation.--Not less than 90 percent of the funds
made available to carry out this title for a fiscal year
(other than funds made available to carry out sections
803(d), 803A, 803C, and 804, and any other provision of this
title having an express authorization of appropriations)
shall be expended to carry out section 803(a).'';
(2) by redesignating subsection (d) as subsection (c); and
(3) by striking subsection (e).
(c) Reports.--Section 811A of the Native American Programs
Act of 1974 (42 U.S.C. 2992-1) is amended--
(1) by striking the section heading and all that follows
through ``each year,'' and inserting the following:
``SEC. 811A. REPORTS.
``Every 5 years, the Secretary shall''; and
(2) by striking ``an annual report'' and inserting ``a
report''.
SEC. 2. RESEARCH AND EDUCATIONAL ACTIVITIES.
Section 7205(a)(3) of the Native Hawaiian Education Act (20
U.S.C. 7515(a)(3)) is amended--
(1) by redesignating subparagraphs (K) and (L) as
subparagraphs (L) and (M), respectively; and
(2) by inserting after subparagraph (J) the following:
``(K) research and educational activities relating to
Native Hawaiian law;''.
______
By Mrs. FEINSTEIN (for herself, Ms. Snowe, Mr. McCain, Mr.
Chafee, Mrs. Murray, Mr. Jeffords, Mr. Durbin, Mr. Lieberman,
Mr. Leahy, Mr. Lautenberg, Mrs. Boxer, Ms. Cantwell, Mr. Akaka,
and Mr. Reed):
S.J. Res. 5. A joint resolution expressing the sense of Congress that
the United States should act to reduce greenhouse gas emissions; to the
Committee on Foreign Relations.
Mrs. FEINSTEIN. 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
[[Page S1558]]
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.
There being no objection, the joint resolution was ordered to be
printed in the Record, as follows:
S.J. Res. 5
Whereas in May 1992, the Senate gave advice and consent to
the ratification of the United Nations Framework Convention
on Climate Change with the intent of reducing global manmade
emissions of greenhouse gases, which committed the United
States (along with other developed countries) to a nonbinding
target of containing emissions levels at 1990 rates by 2000;
Whereas the United Nations Framework Convention on Climate
Change was signed by President George Herbert Walker Bush and
took effect in March 1994;
Whereas in December 1997, at the United Nations Framework
Convention on Climate Change conference of the parties, the
Kyoto Protocol, which set targets for reductions in the
greenhouse gas emissions of industrialized countries, was
established based on principles described in the 1992
framework agreement;
Whereas on February 16, 2005, the Kyoto Protocol will take
effect, at which time more than 30 industrialized countries
will be legally bound to meet quantitative targets for
reducing or limiting the greenhouse gas emissions of those
countries, an international carbon trading market will be
established through an emissions trading program (which was
originally proposed by the United States and enables any
industrialized country to buy or sell emissions credits), and
the clean development mechanism, which provides opportunities
to invest in projects in developing countries that limit
emissions while promoting sustainable development, will begin
full operation;
Whereas 141 nations (including Canada, China, the European
Union, India, Japan, and Russia) have ratified the Kyoto
Protocol;
Whereas the United States is the only member of the Group
of 8 that has not ratified the Kyoto Protocol;
Whereas, according to the National Academy of Sciences,
``Greenhouse gases are accumulating in Earth's atmosphere as
a result of human activities, causing surface air
temperatures and subsurface ocean temperatures to rise . . .
Human-induced warming and associated sea level rises are
expected to continue through the 21st century.'';
Whereas the Administrator of the Environmental Protection
Agency stated that ``Scientists know for certain that human
activities are changing the composition of Earth's
atmosphere. Increasing levels of greenhouse gases, like
carbon dioxide, in the atmosphere since pre-industrial times
have been well documented. There is no doubt this atmospheric
buildup of carbon dioxide and other greenhouse gases is
largely the result of human activities.'';
Whereas major scientific organizations (including the
American Association for the Advancement of Science, the
American Meteorological Society, and the American Geophysical
Union) have issued statements acknowledging the compelling
scientific evidence of human modification of climate;
[[Page S1559]]
Whereas in 2001, the Intergovernmental Panel on Climate
Change estimated that global average temperatures have risen
by approximately 1 degree Fahrenheit in the past century;
Whereas the report entitled ``Our Changing Planet: The U.S.
Climate Change Science Program for Fiscal Years 2004 and
2005'' states that ``Atmospheric concentrations of carbon
dioxide and methane have been increasing for about two
centuries as a result of human activities and are now higher
than they have been for over 400,000 years.'';
Whereas according to the Arctic climate impact assessment
published in November 2004, the Arctic is warming almost
twice as fast as the rest of the planet, and winter
temperatures in Alaska have increased approximately 5 to 7
degrees Fahrenheit over the past 50 years;
Whereas scientists at the Hadley Centre for Climate
Prediction and Research in the United Kingdom have estimated
that manmade climate change has already doubled the risk of
heat waves, such as the heat wave that caused more than
15,000 deaths in Europe in 2003;
Whereas scientists at the international conference entitled
``Avoiding Dangerous Climate Change'', held in Exeter,
England, from February 1, 2005, through February 3, 2005,
predicted that an increase in temperature of 1.8 degrees
Fahrenheit (which could occur within 25 years) would cause a
decline in food production, water shortages, and a net loss
of gross domestic product in some developing countries;
Whereas scientists at the international conference entitled
``Avoiding Dangerous Climate Change'' predicted that an
increase in temperature of 3.6 degrees Fahrenheit (which
could occur before 2050) could cause a substantial loss of
Arctic Sea ice, widespread bleaching of coral reefs, an
increased frequency of forest fires, and rivers to become too
warm to support trout and salmon, and, in developing
countries, would cause an increased risk of hunger, water
shortages that would affect an additional 1,500,000,000
people, and significant losses of gross domestic product in
some countries;
Whereas scientists at the international conference entitled
``Avoiding Dangerous Climate Change'' predicted that an
increase in temperature of 5.4 degrees Fahrenheit (which
could occur before 2070) would cause irreversible damage to
the Amazon rainforest, destruction of many coral reefs, a
rapid increase in hunger, large losses in crop production in
certain regions, which could affect as many as 5,500,000,000
people, and water shortages that would affect an additional
3,000,000,000 people;
Whereas scientists at the international conference entitled
``Avoiding Dangerous Climate Change'' predicted that an
increase in temperature of greater than 5.4 degrees
Fahrenheit (which could occur after 2070) would cause certain
regions to become unsuitable for food production, and have a
substantial effect on the global gross domestic product;
Whereas in the United States, multiple mechanisms
(including market cap and trade programs) exist to carry out
mitigation of climate change, sequestration activities in
agricultural sectors, and development of new technologies
such as clean coal and hydrogen vehicles; and
Whereas, because the United States has critical economic
and other interests in international climate policy, it is in
the best interest of the United States to play an active role
in any international discussion on climate policy: Now,
therefore, be it
Resolved by the Senate and House of Representatives of the
United States of America in Congress assembled,
Section 1. That it is the sense of Congress that the United
States should demonstrate international leadership and
responsibility regarding reducing the health, environmental,
and economic risks posed by climate change by--
(1) carrying out reasonable and responsible actions to
ensure significant and meaningful reductions in emissions of
all greenhouse gases;
(2) generating climate-friendly technologies by enacting
and implementing policies and programs to address all
greenhouse gas emissions to promote sustained economic
growth;
(3) participating in international negotiations under the
United Nations Framework Convention on Climate Change to
achieve significant, long-term, cost-effective reductions in
global greenhouse gas emissions; and
(4) supporting the establishment of a long-term objective
to prevent the global average temperature from increasing by
greater than 3.6 degrees Fahrenheit above preindustrial
levels.
Sec. 2. The Secretary of State is authorized to and shall
engage in efforts with other federal agencies to lead
international negotiations to mitigate impacts of global
warming.
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