[Congressional Record (Bound Edition), Volume 151 (2005), Part 19]
[Senate]
[Pages 26141-26150]
[From the U.S. Government Publishing Office, www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. GRASSLEY (for himself and Mr. Sessions):
  S. 2016. A bill to amend chapter 3 of title 28, United States Code, 
to provide for 11 circuit judges on the United States Court of Appeals 
for the District of Columbia Circuit; to the Committee on the 
Judiciary.
  Mr. GRASSLEY. Mr. President, I ask unanimous consent that the text of 
this bill be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2016

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. JUDGES ON THE UNITED STATES COURT OF APPEALS FOR 
                   THE DISTRICT OF COLUMBIA CIRCUIT.

       (a) In General.--The table under section 44(a) of title 28, 
     United States Code, is amended by striking the item relating 
     to the District of Columbia and inserting the following:

   ``District of Columbia.....................................11''.....

       (b) Existing Vacancy Not Filled.--In order to comply with 
     the amendment made under subsection (a), 1 of the vacancies 
     of circuit judges on the United States Court of Appeals for 
     the District of Columbia Circuit which existed on the date 
     preceding the date of the enactment of this Act, shall not be 
     filled.
                                 ______
                                 
      By Mr. FEINGOLD (for himself and Ms. Snowe):
  S. 2017. A bill to amend the provisions of titles 5 and 28, United 
States Code, relating to equal access to justice, award of reasonable 
costs and fees, and administrative settlement offers, and for other 
purposes; to the Committee on the Judiciary.
  Mr. FEINGOLD. Mr. President, today I plan to introduce the Equal 
Access to Justice Reform Act of 2005.
  This legislation contains adjustments to the Equal Access to Justice 
Act (EAJA) that will streamline and improve the process of awarding 
attorneys' fees to private parties who prevail in litigation against 
the Federal Government. This is the fifth Congress in which I have 
introduced EAJA reform. I believe this reform is an important step 
toward reducing the burden of defending government litigation for many 
individuals and small businesses.
  I am very pleased to be joined in introducing this legislation this 
year by my friend from Maine, Senator Olympia Snowe, who chairs the 
Small Business Committee. We hope that by working together on a 
bipartisan basis, we will increase the chances that this important 
project will become law.
  The legislation we are proposing today deals directly with a problem 
that affects small businesses and individual Americans across this 
country who face legal battles with the Federal Government. Even if 
they win in court, they may lose financially because they incur the 
great expense of paying their attorneys.
  It is important to understand what the Equal Access to Justice Act 
is, and why it exists. The premise of this statute is very simple. EAJA 
seeks to level the playing field for individuals and small businesses 
that face the United States government in litigation. It establishes 
guidelines for the award of attorneys' fees when the individual or 
small business prevails in a case brought by the government. Quite 
simply, EAJA acknowledges that the resources available to the Federal 
Government in a legal dispute far outweigh those available to most 
Americans. This disparity is lessened by requiring the government, in 
certain instances, to pay the attorneys' fees of successful individual 
and small-business parties. By giving successful parties the right to 
seek attorneys' fees from the United States, EAJA seeks to prevent 
individuals and small business owners from

[[Page 26142]]

having to risk their family savings or their companies' financial well-
being to seek justice in court.
  My interest in this issue predates my election to the Senate. It 
arises from my experience as both a private attorney and a Member of 
the State Senate in my home State of Wisconsin. While in private 
practice, I became aware of how the ability to recoup attorneys' fees 
is a significant factor, and often one of the first considered, when 
parties decide whether to defend a case. Upon entering the Wisconsin 
State Senate, I authored legislation modeled on the Federal law, which 
had been championed by one of my predecessors in this body from 
Wisconsin, Senator Gaylord Nelson. Today, Wisconsin statutes contain 
provisions similar to the federal EAJA statute.
  It seemed to me then, as it does now, that we should do all that we 
can to help ease the financial burdens on people who need to have their 
claims reviewed and decided by impartial decision makers. The bill 
Senator Snowe and I are introducing today does a number of things to 
make EAJA more effective for individuals and small business owners 
across this country.
  First, this legislation eliminates the restrictive provision in 
current law that prevents successful parties from collecting attorneys' 
fees unless they can show the government's position was ``not 
substantially justified.'' I believe that this high threshold for 
obtaining attorneys' fees is unfair. If an individual or small business 
battles the Federal Government in an adversarial proceeding and 
prevails, the government should pay the fees incurred. Imagine a small 
business that spends time and money fighting the government and wins, 
only to find out that it must undertake the additional step of 
litigating the justification of government's litigation position just 
to recover attorneys' fees. For the government, with its vast 
resources, this second litigation over fees poses little difficulty, 
but for the small business or individual, it may simply not be 
financially feasible.
  This additional step presents more than a financial burden on the 
individual or small business litigant. A 1992 study also reveals that 
it is unnecessary and a waste of government resources. University of 
Virginia Professor Harold Krent reviewed EAJA cases in 1989 and 1990 
and released a study on behalf of the Administrative Conference of the 
United States. Professor Krent found that only a small percentage of 
EAJA awards were denied because of the substantial justification 
defense. While it is impossible to determine the exact cost of 
litigating the issue of substantial justification, Professor Krent 
found that the money saved by the government was not enough to justify 
the cost of the additional litigation. In short, eliminating this 
often-burdensome second step is a cost-effective step that will 
streamline recovery under EAJA and may very well save the government 
money in the long run.
  A second improvement this bill makes to EAJA are modifications to the 
definition of a small business. Small businesses are currently defined 
for purposes of EAJA as businesses with a net worth of less than $7 
million. We update that number to $10 million and also provide for an 
inflation adjustment every five years based on the Producer Price 
Index. This provision will ensure that EAJA continues to serve the 
small businesses it is intended to protect.
  Another part of this legislation that will streamline and improve 
EAJA is a provision designed to encourage settlement and avoid costly 
and protracted litigation. Under the bill, the government can make an 
offer of settlement after an application for fees and other expenses 
has been filed. If the government's offer is rejected and the 
prevailing party seeking recovery ultimately wins a smaller award, that 
party is not entitled to the attorneys' fees and costs incurred after 
the date of the government's offer. Again, this will encourage 
settlement and speed the claims process. It will reduce the time and 
expense of the litigation.
  This bill also requires the government agency that brought the case 
against the small business or individual to pay attorneys' fees from 
their own budgets. This provision ensures federal agencies will 
consider the financial impact of the actions they choose to bring 
against individuals and small businesses. OSHA, NLRB, EEOC, and the 
Mine Safety and Health Administration are exempt from this provision 
because they play a unique role in acting on behalf of workers to 
enforce the laws.
  Finally, this bill will modify the definition of prevailing party to 
ensure that if claims filed against the government are the catalyst for 
a change in the position by the government that results in the 
individual or small business achieving a significant part of the relief 
sought, the individual or small business will be considered the 
prevailing party even if the case settles rather than going to a 
judgment. This reverses, in cases where fees are available under EAJA, 
the 2001 decision of the Supreme Court in Buckhannon Board and Care 
Home, Inc. v. West Virginia Department of Health and Human Resources.
  We all know that the American small business owner faces many 
challenges. Government regulation can be a formidable obstacle to 
conducting business, and litigation can be costly. The Equal Access to 
Justice Act was conceived and implemented as a check on the formidable 
power of the federal government. It has already helped many individual 
Americans and small businesses. The legislation we are offering today 
will make EAJA more effective and more fair. I want to thank Senator 
Snowe for agreeing to work with me on this important bill. I hope our 
colleagues can support it.
  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. 2017

       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 ``Equal Access to Justice 
     Reform Act of 2005''.

     SEC. 2. FINDINGS AND STATEMENT OF PURPOSE.

       (a) Findings.--The Congress finds that--
       (1) the Equal Access to Justice Act (Public Law 96-481; 94 
     Stat. 2325 et seq.) (in this section referred to as ``EAJA'') 
     was intended to make the justice system more accessible to 
     individuals of modest means, small businesses, and nonprofit 
     organizations (in this section collectively referred to as 
     ``small parties'') through limited recovery of their 
     attorneys' fees when they prevail in disputes with the 
     Federal Government; and
       (2) although EAJA has succeeded, at modest cost, in 
     improving access to the justice system for small parties, 
     EAJA retains formidable barriers to attorneys' fees recovery 
     (even for small parties that completely prevail against the 
     Government), as well as inefficient and costly mechanisms for 
     determining the fees recovery.
       (b) Purpose.--It is, therefore, the purpose of this Act to 
     remove existing barriers and inefficiencies in EAJA in order 
     to--
       (1) equalize the level of accountability to Federal law 
     among governments in the United States;
       (2) discourage marginal Federal enforcement actions 
     directed at small parties;
       (3) reduce the practice of paying EAJA liabilities from the 
     General Treasury, to ensure that Federal agencies properly 
     consider the financial consequences of their actions and 
     subsequent impact on the Federal budget;
       (4) refine and improve Federal policies through 
     adjudication;
       (5) promote a fair and cost-effective process for prompt 
     settlement and payment of attorneys' fees claims; and
       (6) provide a fairer opportunity for full participation by 
     small businesses in the free enterprise system, further 
     increasing the economic vitality of the Nation.
       (c) Compliance Policy.--In complying with the statement of 
     congressional policy expressed in this section, each Federal 
     agency, to the maximum extent practicable, should--
       (1) avoid unjustified enforcement actions directed at small 
     parties covered by EAJA;
       (2) encourage settlement of justified enforcement actions 
     directed at small parties covered by EAJA; and
       (3) minimize impediments to prompt resolution and payment 
     of reasonable attorneys' fees to prevailing small parties 
     covered by EAJA.

     SEC. 3. REPORTING AND TECHNICAL ASSISTANCE BY OFFICE OF 
                   ADVOCACY.

       (a) Functions of Office of Advocacy.--Section 202 of Public 
     Law 94-305 (15 U.S.C. 634b) is amended--
       (1) in paragraph (3), by inserting before the semicolon at 
     the end the following: ``and for

[[Page 26143]]

     ensuring that the justice system remains accessible to small 
     businesses for the resolution of disputes with the Federal 
     Government''; and
       (2) by striking paragraph (11) and inserting the following:
       ``(11) advise, cooperate with, and consult with the 
     President and Attorney General with respect to section 303(b) 
     of the Small Business Economic Policy Act of 1980 (15 U.S.C. 
     631b(b)) and section 504(e) of title 5, United States Code; 
     and''.
       (b) Duties of Office of Advocacy.--Section 203 of Public 
     Law 94-305 (15 U.S.C. 634c) is amended--
       (1) in paragraph (2), by inserting before the semicolon at 
     the end the following: ``, including the resolution of 
     disputes with the Federal Government and the role of 
     procedures established by the Equal Access to Justice Act 
     (Public Law 96-481; 94 Stat. 2325) in such disputes''; and
       (2) in paragraph (3), by inserting after ``the Small 
     Business Act'' the following: ``, including those related to 
     the Equal Access to Justice Act,''.
       (c) Reports to Congress.--
       (1) In general.--Not later than 180 days after the date of 
     enactment of this Act, the Attorney General, in cooperation 
     with the Chief Counsel for Advocacy of the Small Business 
     Administration, shall transmit to the congressional 
     committees specified in paragraph (2) a report containing--
       (A) an analysis of the effectiveness of the Equal Access to 
     Justice Act (Public Law 96-481; 94 Stat. 2325) (in this 
     paragraph referred to as ``EAJA'') in achieving its purpose 
     to ease the burden upon small businesses and other small 
     parties covered by EAJA of engaging in dispute resolution 
     with the Federal Government, including--
       (i) the relative awareness of EAJA in the small business 
     community;
       (ii) the relative awareness of EAJA's requirements among 
     Federal agencies;
       (iii) the extent and quality of rules and regulations 
     adopted by each Federal agency for processing, resolving, and 
     paying attorneys' fees claims under EAJA;
       (iv) the extent to which each Federal agency claims any 
     exemptions in whole or in part from EAJA's coverage;
       (v) the frequency or degree of use of EAJA's procedures by 
     prevailing small businesses; and
       (vi) an analysis of the costs and benefits of EAJA 
     generally;
       (B) an analysis of the variations in the frequency and 
     amounts of fee awards paid by specific Federal agencies and 
     within specific Federal circuits and districts under section 
     504 of title 5, United States Code, and section 2412 of title 
     28, United States Code, including the number and total dollar 
     amount of all claims filed with, and all claims processed, 
     settled, litigated, and paid by, each agency under EAJA; and
       (C) recommendations for congressional oversight or 
     legislative changes with respect to EAJA, including any 
     recommendations for promulgation or amendment of regulations 
     issued under EAJA by specific Federal agencies.
       (2) Specified committees.--The congressional committees 
     referred to in paragraph (1) are the following:
       (A) The Committee on the Judiciary and the Committee on 
     Small Business of the House of Representatives.
       (B) The Committee on the Judiciary and the Committee on 
     Small Business and Entrepreneurship of the Senate.
       (3) Report on small business and competition.--Section 303 
     of the Small Business Economic Policy Act of 1980 (15 U.S.C. 
     631b) is amended--
       (A) in subsection (a), by striking paragraph (5) and 
     inserting the following:
       ``(5) recommend a program for carrying out the policy 
     declared in section 302 (including a policy to ensure that 
     the justice system remains accessible to small business 
     enterprises for the resolution of disputes with the Federal 
     Government), together with such recommendations for 
     legislation as the President may deem necessary or 
     desirable.'';
       (B) in subsection (b)--
       (i) by striking ``(b)'' and inserting ``(b)(1)''; and
       (ii) by adding at the end the following:
       ``(2) The President, after consultation with the Chief 
     Counsel for Advocacy of the Small Business Administration and 
     the Attorney General, shall transmit simultaneously as an 
     appendix to such annual report, a report that describes, by 
     agency and department--
       ``(A) the total number of claims filed, processed, settled, 
     and litigated by small business concerns under section 504 of 
     title 5, United States Code, and section 2412 of title 28, 
     United States Code (originally enacted pursuant to the Equal 
     Access to Justice Act (Public Law 96-481; 94 Stat. 2325));
       ``(B) the total dollar amount of all outstanding awards and 
     settlements to small business concerns under such sections;
       ``(C) the total dollar amount of all claims paid to small 
     business concerns under such sections;
       ``(D) the underlying legal claims involved in each 
     controversy with small business concerns under such sections; 
     and
       ``(E) any other relevant information that the President 
     determines may aid Congress in evaluating the impact on small 
     business concerns of such sections.
       ``(3) Each agency shall provide the President with such 
     information as is necessary for the President to comply with 
     the requirements of this subsection.''; and
       (C) in subsection (d)--
       (i) by striking ``(d)'' and inserting ``(d)(1)''; and
       (ii) by adding at the end the following:
       ``(2) All reports concerning the Equal Access to Justice 
     Act (Public Law 96-481; 94 Stat. 2325), or the congressional 
     policy to ensure that the justice system remains accessible 
     to small business enterprises for the resolution of disputes 
     with the Federal Government, shall be transmitted to the 
     following congressional committees:
       ``(A) The Committee on the Judiciary and the Committee on 
     Small Business of the House of Representatives.
       ``(B) The Committee on the Judiciary and the Committee on 
     Small Business and Entrepreneurship of the Senate.''.

     SEC. 4. EQUAL ACCESS FOR SMALL PARTIES IN CIVIL AND 
                   ADMINISTRATIVE PROCEEDINGS.

       (a) Elimination of Substantial Justification Standard.--
       (1) Administrative proceedings.--Section 504 of title 5, 
     United States Code, is amended--
       (A) in subsection (a)(1), by striking ``, unless the 
     adjudicative officer'' and all that follows through the 
     period at the end and inserting a period; and
       (B) in subsection (a)(2), by striking ``The party shall 
     also allege that the position of the agency was not 
     substantially justified.''.
       (2) Judicial proceedings.--Section 2412 of title 28, United 
     States Code, is amended--
       (A) in subsection (d)(1)(A), by striking ``, unless the 
     court'' and all that follows through the period at the end 
     and inserting a period;
       (B) in subsection (d)(1)(B), by striking ``The party shall 
     also allege'' and all that follows through the period at the 
     end and inserting a period; and
       (C) in subsection (d)(3), by striking ``, unless the 
     court'' and all that follows through the period at the end 
     and inserting a period.
       (b) Eligibility of Small Businesses for Fee Award.--
       (1) Administrative proceedings.--
       (A) In general.--Section 504(b)(1)(B)(ii) of title 5, 
     United States Code, is amended by striking ``$7,000,000'' and 
     inserting ``$10,000,000''.
       (B) Adjustment in net worth limitation.--Section 504(b) of 
     title 5, United States Code, is amended by adding at the end 
     the following:
       ``(3) Beginning on January 1 of the 5th year following the 
     date of enactment of this paragraph, and on January 1 every 5 
     years thereafter, the dollar amount under paragraph 
     (1)(B)(ii) shall be adjusted by the Producer Price Index as 
     determined by the Secretary of the Treasury, in collaboration 
     with the Bureau of Labor Statistics.''.
       (2) Judicial proceedings.--
       (A) In general.--Section 2412(d)(2)(B)(ii) of title 28, 
     United States Code, is amended by striking ``$7,000,000'' and 
     inserting ``$10,000,000''.
       (B) Adjustment in net worth limitation.--Section 2412(d) of 
     title 28, United States Code, is amended by adding at the end 
     the following:
       ``(5) Beginning on January 1 of the 5th year following the 
     date of enactment of this paragraph, and on January 1 every 5 
     years thereafter, the dollar amount under paragraph 
     (2)(B)(ii) shall be adjusted by the Producer Price Index as 
     determined by the Secretary of the Treasury, in collaboration 
     with the Bureau of Labor Statistics.''.
       (c) Elimination of Rate Cap.--
       (1) Administrative proceedings.--Section 504(b)(1)(A) of 
     title 5, United States Code, is amended--
       (A) by striking ``(i)''; and
       (B) by striking ``by the agency involved'' and all that 
     follows through ``a higher fee'' and inserting ``by the 
     agency involved''.
       (2) Judicial proceedings.--Section 2412(d)(2)(A) of title 
     28, United States Code, is amended--
       (A) by striking ``(i)''; and
       (B) by striking ``by the United States'' and all that 
     follows through ``a higher fee'' and inserting ``by the 
     United States''.
       (d) Offers of Settlement.--
       (1) Administrative proceedings.--Section 504(a) of title 5, 
     United States Code, as amended by this section, is further 
     amended by adding at the end the following:
       ``(5)(A) At any time after an agency receives an 
     application submitted under paragraph (2), the agency may 
     serve upon the applicant a written offer of settlement of the 
     claims made in the application. If within 10 business days 
     after such service the applicant serves written notice that 
     the offer is accepted, either the agency or the applicant may 
     then file the offer and notice of acceptance together with 
     proof of service thereof.
       ``(B) An offer not accepted within the time allowed shall 
     be deemed withdrawn. The fact that an offer is made but not 
     accepted shall not preclude a subsequent offer. If any award 
     of fees and expenses for the merits of the proceeding finally 
     obtained by the applicant is not more favorable than the 
     offer, the applicant shall not be entitled to receive an 
     award for fees or other expenses incurred (in

[[Page 26144]]

     relation to the application for fees and expenses) after the 
     date of the offer.''.
       (2) Judicial proceedings.--Section 2412(d)(1) of title 28, 
     United States Code, as amended by this section, is further 
     amended by adding at the end the following:
       ``(E)(i) At any time after an agency receives an 
     application submitted under subparagraph (B), the agency may 
     serve upon the applicant a written offer of settlement of the 
     claims made in the application. If within 10 business days 
     after such service the applicant serves written notice that 
     the offer is accepted, either the agency or the applicant may 
     then file the offer and notice of acceptance together with 
     proof of service thereof.
       ``(ii) An offer not accepted within the time allowed shall 
     be deemed withdrawn. The fact that an offer is made but not 
     accepted shall not preclude a subsequent offer. If any award 
     of fees and expenses for the merits of the proceeding finally 
     obtained by the applicant is not more favorable than the 
     offer, the applicant shall not be entitled to receive an 
     award for fees or other expenses incurred (in relation to the 
     application for fees and expenses) after the date of the 
     offer.''.
       (e) Declaration of Intent to Seek Fee Award.--
       (1) Administrative proceedings.--Section 504(a)(2) of title 
     5, United States Code, as amended by this section, is further 
     amended by inserting before the first sentence the following: 
     ``At any time after the commencement of an adversary 
     adjudication, the adjudicative officer may (and if requested 
     by a party shall) require a party to declare whether such 
     party intends to seek an award of fees and expenses against 
     the agency should such party prevail.''.
       (2) Judicial proceedings.--Section 2412(d)(1)(B) of title 
     28, United States Code, as amended by this section, is 
     further amended by inserting before the first sentence the 
     following: ``At any time after the commencement of an 
     adversary adjudication, as defined in subsection (b)(1)(C) of 
     section 504 of title 5, United States Code, the court may 
     (and if requested by a party shall) require a party to 
     declare whether such party intends to seek an award of fees 
     and expenses against the agency should such party prevail.''.
       (f) Payment of Attorneys' Fees From Agency 
     Appropriations.--
       (1) Administrative proceedings.--Section 504(d) of title 5, 
     United States Code, is amended to read as follows:
       ``(d)(1) Fees and other expenses awarded under this section 
     shall be paid by any agency over which the party prevails 
     from any funds made available to the agency by appropriation 
     or otherwise.
       ``(2) Fees and expenses awarded under this section may not 
     be paid from the claims and judgments account of the Treasury 
     from funds appropriated pursuant to section 1304 of title 31.
       ``(3) Paragraph (2) shall not apply to the National Labor 
     Relations Board, the Occupational Safety and Health 
     Administration, the Mine Safety and Health Administration, or 
     the Equal Employment Opportunity Commission.''.
       (2) Judicial proceedings.--Section 2412(d)(4) of title 28, 
     United States Code, is amended to read as follows:
       ``(4)(A) Fees and other expenses awarded under this 
     subsection shall be paid by any agency over which the party 
     prevails from any funds made available to the agency by 
     appropriation or otherwise.
       ``(B) Fees and expenses awarded under this section may not 
     be paid from the claims and judgments account of the Treasury 
     from funds appropriated pursuant to section 1304 of title 31.
       ``(C) Subparagraph (B) shall not apply to the National 
     Labor Relations Board, the Occupational Safety and Health 
     Administration, the Mine Safety and Health Administration, or 
     the Equal Employment Opportunity Commission.''.
       (g) Eligibility of Taxpayers for Fee Award.--
       (1) Administrative proceedings.--Section 504 of title 5, 
     United States Code, as amended by this section, is further 
     amended by striking subsection (f).
       (2) Judicial proceedings.--Section 2412 of title 28, United 
     States Code, as amended by this section, is further amended 
     by striking subsection (e) and redesignating subsection (f) 
     as subsection (e).
       (h) Conforming Amendment Relating to Reporting Requirement 
     Under Small Business Act.--Section 504(e) of title 5, United 
     States Code, is amended to read as follows:
       ``(e)(1) The Attorney General, after consultation with the 
     Chief Counsel for Advocacy of the Small Business 
     Administration, shall report annually to the Congress on the 
     amount of fees and other expenses awarded to individuals 
     during the preceding fiscal year pursuant to this section and 
     section 2412 of title 28. The report shall describe the 
     number, nature, and amount of the awards, the claims involved 
     in the controversy, and any other relevant information which 
     may aid the Congress in evaluating the scope and impact of 
     such awards for individuals engaged in disputes with Federal 
     agencies. Each agency shall provide the Attorney General with 
     such information as is necessary for the Attorney General to 
     comply with the requirements of this subsection.
       ``(2) A requirement that the President report annually on 
     proceedings affecting small business concerns under this 
     section and under section 2412 of title 28 is provided in 
     section 303(b) of the Small Business Economic Policy Act of 
     1980 (15 U.S.C. 631b(b)).''.
       (i) Applicability.--The provisions of this section and the 
     amendments made by this section shall apply to any proceeding 
     pending on, or commenced on or after, the effective date of 
     this Act.

     SEC. 5. DEFINITION OF PREVAILING PARTY IN EAJA CASES.

       (a) Title 5.--Section 504(b)(1) of title 5, United States 
     Code, is amended by adding at the end the following:
       ``(G) `prevailing party' includes, in addition to a party 
     who prevails through a judicial or administrative judgment or 
     order, a party whose pursuit of a nonfrivolous claim or 
     defense was a catalyst for a voluntary or unilateral change 
     in position by the opposing party that provides any 
     significant part of the relief sought.''.
       (b) Title 28.--Section 2412 of title 28, United States 
     Code, is amended--
       (1) in subsection (d)(2)(H), by inserting after ``means'' 
     the following: ``, subject to subsection (g),''; and
       (2) by adding at the end the following:
       ``(g) For the purposes of this section, the term 
     `prevailing party' includes, in addition to a party who 
     prevails through a judicial or administrative judgment or 
     order, a party whose pursuit of a nonfrivolous claim or 
     defense was a catalyst for a voluntary or unilateral change 
     in position by the opposing party that provides any 
     significant part of the relief sought.''.

     SEC. 6. EFFECTIVE DATE.

       The provisions of this Act and the amendments made by this 
     Act shall take effect 30 days after the date of the enactment 
     of this Act.

  Ms. SNOWE. Mr. President, as Chair of the Senate Committee on Small 
Business and Entrepreneurship, I have fought to ensure that small 
businesses across the country are treated fairly by the Federal 
Government. Unfortunately, in far too many cases, Federal agencies take 
arbitrary or abusive enforcement actions against small businesses. Few 
repercussions deter the Federal Government from taking these 
unwarranted and unjust actions, which can irreparably injure the 
reputation and financial viability of a small business.
  Enacted in 1980 on a bipartisan basis, the Equal Access to Justice 
Act (EAJA) intended to allow small businesses to collect legal fees 
after prevailing in litigation against the Federal Government. However, 
a number of barriers and inefficiencies exist within EAJA that prevent 
its effectiveness.
  For example, EAJA currently requires a small business that has 
prevailed in litigation against the Federal Government to enter into a 
costly second proceeding with the government. At the second proceeding, 
the government can assert a ``substantial justification'' defense to 
prevent the small business from recovering its legal costs, even though 
the small business prevailed on the merits of the underlying case in 
court. Even in instances when the Federal Government based its actions 
entirely on erroneous facts or without any legal basis, if the Federal 
Government can show that it was ``substantially justified'' in taking 
its actions, then a small business will be barred from EAJA recovery.
  In practice, courts typically give a very wide berth to the 
government's substantially justified defense--a reality that means that 
prevailing small businesses can rarely, if ever, recover their legal 
fees under EAJA. And while a second proceeding may be in the best 
interest of the Federal agency--especially because its case is being 
funded by the General Treasury--the second proceeding may ultimately be 
more costly and more time consuming to the small business than the 
original, underlying case.
  I believe that this is a flawed system. Small businesses are a 
driving force of the United States economy, representing 99.7 percent 
of all employer firms and generating approximately 75 percent of net 
new jobs annually. It is in our Nation's best interest to protect and 
watch over small businesses, as their success and vitality are key to 
America's economy and job growth.
  It's plain and simple: We should not idly stand by while the Federal 
Government mistreats our Nation's small businesses.
  That is why today I introduce with my colleague Senator Feingold the

[[Page 26145]]

Equal Access to Justice Reform Act of 2005 (EAJRA). This bill would 
ensure that small businesses are adequately protected from unreasonable 
regulations and actions, as well as update EAJA to better serve today's 
small businesses.
  Under our legislation, small parties would be more likely to recover 
their legal fees when they prevail in litigation against the Federal 
Government. First, the EAJRA would eliminate the ``substantial 
justification'' defense, which would increase the likelihood that small 
businesses will be able to recover their legal costs after their 
winning their case.
  Second, our legislation would modernize the EAJA by updating 
eligibility qualifications for small businesses. It would raise the 
threshold for qualifying small businesses from $7 million to $10 
million net worth, and index that threshold for inflation. Given modern 
economic realities, a net worth of $7 million is no longer sufficient.
  Third, the EAJRA would remove the hourly rate cap on attorney's fees. 
The current hourly rate cap of $125 was set during EAJA's enactment in 
1980, and has yet to be adjusted for inflation. However, the market 
rate for competent legal services, especially for complex and high-risk 
litigation against the Federal Government, is far greater than the cap 
of $125 per hour. This limit prevents small businesses from receiving 
fair and just reimbursement of attorney's fees, placing them at a 
notable disadvantage.
  Finally, the EAJRA would require agencies that lose lawsuits, other 
than the National Labor Relations Board, the Occupational Safety and 
Health Administration, the Mine Safety and Health Administration, and 
the Equal Employment Opportunity Commission, to pay legal fees awarded 
under EAJA out of their own budgets and not the General Treasury. This 
would eliminate inefficient uses of Federal agency resources and would 
discourage marginal or abusive Federal enforcement actions directed at 
small parties. In addition, the Federal budget would no longer be 
unnecessarily burdened.
  The EAJRA creates a fair and even playing field. It would equalize 
the level of accountability to Federal law among governments in the 
United States. It is a ``good government'' statute that would promote 
justice and equality of treatment between small and large entities, and 
would greatly increase transparency in the Federal Government.
  This legislation is absolutely necessary. I urge my colleagues to 
support the Equal Access to Justice Reform Act so that we can ensure 
that our nation's small businesses are protected from unfair and 
unreasonable governmental actions.
                                 ______
                                 
      By Mr. SMITH (for himself and Mr. Baucus):
  S. 2019. A bill to provide for a research program for remediation of 
closed methamphetamine production laboratories, and for other purposes; 
to the Committee on Environment and Public Works.
  Mr. BAUCUS. Mr. President, I am pleased to introduce with Senator 
Smith a bill that would provide for the establishment of voluntary, 
``health-based'' remediation guidelines for former methamphetamine 
laboratories, an issue of great importance to Montana, Oregon, and all 
of rural America.
  The material and chemical byproducts of methamphetamine production 
pose novel risks to the environment and public health. These risks are 
compounded by the sheer number of meth labs and the vulnerability of 
police, social service workers, and children exposed to meth 
production. The DEA estimated that there were as many as 16,000 meth 
labs in operation in 2004. Additionally, thousands of meth labs have 
been busted over the years but never properly remediated. Producing one 
pound of meth leaves behind six pounds of hazardous waste. In addition 
to bulk waste, cooking meth infuses toxic chemicals into the walls, 
carpeting, and ventilation systems of the homes, apartments, motel 
rooms, and parks where meth is produced.
  Unremediated methamphetamine labs pose significant public health 
risks. The Department of Health and Human Services has reported that 
law enforcement officials and social service workers exposed to meth 
labs, or even just individuals removed from meth labs, have complained 
of severe headaches, eye and respiratory irritations, nausea, and 
burns. The need for remediation guidelines is clear.
  Currently, eight States, including Montana, have ``feasibility-
based'' remediation standards. ``Feasibility-based'' standards consider 
cost as a key factor in determining what level of remediation is 
desirable. While such standards are a start, we need greater certainty 
that our public servants and children are adequately protected.
  Our bill provides a remedy. It directs the Assistant Administrator 
for Research and Development of the EPA to establish voluntary 
remediation guidelines, based on the best available scientific 
knowledge. To further this effort, our bill provides for a program of 
research to identify methamphetamine laboratory-related chemicals of 
concern, assess the types and levels of exposure to chemicals of 
concern--including routine and accidental exposures--that may present a 
significant risk of adverse biological effects, and evaluate the 
performance of various methamphetamine laboratory cleanup and 
remediation techniques. Our bill does not regulate States. The 
remediation guidelines are purely voluntary, meant to put States, 
remediation consultants, homeowners, and realtors on the same page.
  Methamphetamine production poisons not only users but also spouses, 
children, public servants, and any future owners of properties exposed 
to meth production. To protect the public we need consistent, 
scientifically-based remediation guidelines.
                                 ______
                                 
      By Mr. CHAMBLISS:
  S. 2021. A bill to amend title 38, United States Code, to establish 
in the Department of Veterans Affairs an Office of National Veterans 
Sports Programs and Special Events; to the Committee on Veterans' 
Affairs.
  Mr. CHAMBLISS. Mr. President, I rise today to introduce my bill, the 
``Disabled Veterans Sports and Special Events Promotion Act of 2005''.
  We discovered during World War II that sports and physical activity 
play a vital role in the rehabilitation of recently disabled military 
personnel. Young service members who had just returned from WWII and 
were undergoing rehabilitation were drawn to sports and other team 
activities. The appeal of sports for these veterans served as more than 
just a rehabilitation technique. In fact, sports served as a source of 
motivation as well as a path to a fuller life for young people in the 
aftermath of a disability. As would be expected, many of these veterans 
became exceptional athletes and sought opportunities for competition 
and excellence in the new world of competitive Paralympic sports.
  With the onset of hostilities in Afghanistan and Iraq, a new 
generation of U.S. military personnel with disabilities has emerged. 
These newly-disabled men and women are young, ambitious, goal-oriented 
and in their physical prime. Sport, which played a fundamental role for 
returning veterans of World War II, Korea, and Vietnam, has the 
capacity to assist military personnel in adjusting to life with a 
disability. The United States Olympic Committee (USOC) and its 
Paralympic partners recognize the opportunity to play a key role in the 
lives of returning military personnel with newly acquired disabilities.
  The USOC Paralympic Military Program is a collaborative effort among 
the USOC, military installations and commands, Veterans' Affairs (VA) 
offices and programs, and Paralympic organizations nationwide that are 
conducting Paralympic sport programs for active duty military personnel 
and veterans who have physical disabilities.
  The Program has been established to enable severely injured service 
members and veterans to enhance their rehabilitation, readiness and 
lifestyle through participation in Paralympic sports. The Program is 
designed for recently injured service members, 2001 and after, 
Paralympic-eligible disabilities; however, other service members and 
veterans with physical disabilities

[[Page 26146]]

who are able to engage in program activities are welcome. Paralympic-
eligible disabilities are: amputations, visual impairments, Brain 
injuries affecting physical mobility, spinal cord injuries and, other 
mobility-impairing disabilities.
  This bill would establish within the Department of Veterans Affairs 
an Office of National Veterans Sports Programs and Special Events which 
would establish and carry out sports programs for disabled veterans. In 
addition, the office would arrange for the VA to sponsor sports 
programs for disabled veterans conducted by other groups if the 
Secretary detennines that the programs are consistent with the VA's 
goals and missions. The office would provide for, facilitate, and 
encourage disabled veterans to participate in these programs. Finally, 
the office will cooperate with the USOC and their Paralympic Military 
Program to promote participation of disabled veterans in the 
Paralympics.
  This bill allows those injured in service to our country the option 
to regain a healthy, active lifestyle through sport and competition. 
Competing in sports such as cycling, fencing, shooting, sled hockey, 
table tennis, and sitting volleyball gives these injured veterans the 
opportunity to rehabilitate their bodies and minds while competing at 
the highest level. It is my hope that as we proceed with this bill, we 
keep the people at the receiving end of our decisions and deliberations 
foremost in our minds.
  I ask my colleagues to support this bill.
                                 ______
                                 
      By Mr. COLEMAN (for himself and Mr. Bingaman):
  S. 2022. A bill to amend title XVIII of the Social Security Act to 
provide for coverage of remote patient management services for chronic 
health care conditions under the Medicare program; to the Committee on 
Finance.
  Mr. COLEMAN. Mr. President, constituents across the country in rural 
areas face serious health care issues, not only in terms of illness but 
also in lack of easily accessible services. One out of every five 
Americans lives in rural areas however only one out of every ten 
physicians practice in rural areas. Forty percent of our rural 
population lives in a medically underserved area. With access to care 
an average of thirty miles away, rural areas have much to gain from the 
ability to access healthcare information at a distance. We depend on 
our farmers and ranchers--they are the lifeblood of America and take 
care of the essentials in our lives such as feeding us and clothing us. 
We should make sure to take care of them as well.
  Today, I am proud to be joined by my friend, Senator Bingaman in 
introducing the Remote Monitoring Access Act of 2005 to overcome the 
barriers to more rapid diffusion of innovative new technologies that 
will improve quality and access to care for Medicare beneficiaries, by 
implementing changes in Medicare fee-for-service reimbursements. Our 
legislation would create a new benefit category for remote patient 
management services in the Medicare physician fee schedule. Under this 
category, Medicare would cover physician services involved with the 
remote management of specific medical conditions.
  New technology that collects, analyzes, and transmits clinical health 
information is in development or has recently been introduced to the 
market. The promise of this remote management technology is clear: 
better information on the patient's condition--collected and stored 
electronically, analyzed for clinical value, and transmitted to the 
physician or the patient--should improve patient care and access.
  Remote monitoring technology is also emerging to extend the provision 
of health care services to areas where there is a shortage of 
physicians. This technology allows physicians to monitor and treat 
patients without a face-to-face office visit, thereby increasing access 
to physicians for patients living in rural areas.
  In its March 2001 report, ``Crossing the Quality Chasm,'' the 
Institute of Medicine stated that the automation of clinical and other 
health transactions was an essential factor for improving quality, 
preventing errors, enhancing consumer confidence in the health care 
system, and improving efficiency, yet ``health care delivery has been 
relatively untouched by the revolution in information technology that 
has been transforming nearly every other aspect of society.''
  Three major areas in which remote management technologies are 
emerging in health care are the treatment of congestive heart failure 
(CHF), diabetes and cardiac arrhythmia.
  Despite these innovations and their ability to improve care, many new 
clinical information and remote management technologies have failed to 
diffuse rapidly. A significant barrier to wider adoption and evolution 
of the technologies is the relative lack of payment mechanisms in fee-
for-service Medicare to reimburse for remote, non-face-to-face 
management and disease management services provided by a physician.
  Under existing Medicare fee schedules, physicians generally receive a 
fixed, predetermined amount for a given service. The cost of devices 
used or supplied in the service is usually bundled into the payment, 
and payments are primarily provided for face-to-face interactions 
between the physician and patient. The payment structure creates at 
least two problems for the wider adoption of patient management 
approaches using remote management technology.
  To overcome the barriers to more rapid diffusion of innovative new 
technology for Medicare beneficiaries, changes in Medicare fee-for-
service reimbursements are necessary. This legislation would create a 
new benefit category for remote patient management services in the 
Medicare physician fee schedule. Under this category, Medicare would 
cover physician services involved with the remote management of 
specific medical conditions.
  The quality of care provided through remote management would allow 
physicians to qualify for bonus payments conditioned on specific 
quality measures. This legislation directs the Secretary, through the 
Agency for Health Care Research and Quality (AHRQ) to develop standards 
of care and quality standards for the remote management services 
provided for each medical condition covered. AHRQ would develop these 
standards working in conjunction with appropriate physician groups. The 
Secretary is also given the authority to develop guidelines on the 
frequency of billing for remote patient management services.
  I urge my fellow colleagues to join me in ensuring rural Americans 
have the access to remote monitoring and the opportunity to keep pace 
with health technology by supporting the Remote Monitoring Access Act 
of 2005.
  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. 2022

       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 ``Remote Monitoring Access Act 
     of 2005''.

     SEC. 2. COVERAGE OF REMOTE PATIENT MANAGEMENT SERVICES FOR 
                   CHRONIC HEALTH CARE CONDITIONS.

       (a) In General.--Section 1861(s)(2) of the Social Security 
     Act (42 U.S.C. 1395x(s)(2)) is amended--
       (1) in subparagraph (Y), by striking ``and'' at the end;
       (2) in subparagraph (Z), by inserting ``and'' at the end; 
     and
       (3) by inserting after subparagraph (Z) the following new 
     subparagraph:
       ``(AA) remote patient management services (as defined in 
     subsection (bbb));''.
       (b) Services Described.--Section 1861 of the Social 
     Security Act (42 U.S.C. 1395x) is amended by adding at the 
     end the following new subsection:

                  ``Remote Patient Management Services

       ``(bbb)(1) The term `remote patient management services' 
     means the remote monitoring and management of an individual 
     with a covered chronic health condition (as defined in 
     paragraph (2)) through the utilization of a system of 
     technology that allows a remote interface to collect and 
     transmit clinical data between the individual and the 
     responsible physician or supplier for the purposes of 
     clinical review or response by the physician or supplier.

[[Page 26147]]

       ``(2) For purposes of paragraph (1), the term `covered 
     chronic health condition' includes--
       ``(A) heart failure;
       ``(B) diabetes;
       ``(C) cardiac arrhythmia; and
       ``(D) any other chronic condition determined by the 
     Secretary to be appropriate for treatment through remote 
     patient management services.
       ``(3)(A) The Secretary, in consultation with appropriate 
     physician groups, may develop guidelines on the frequency of 
     billing for remote patient management services. Such 
     guidelines shall be determined based on medical necessity and 
     shall be sufficient to ensure appropriate and timely 
     monitoring of individuals being furnished such services.
       ``(B) The Secretary, acting through the Agency for Health 
     Care Research and Quality, shall do the following:
       ``(i) Not later than 1 year after the date of enactment of 
     the Remote Monitoring Access Act of 2005, develop, in 
     consultation with appropriate physician groups, a standard of 
     care and quality standards for remote patient management 
     services for the covered chronic health conditions specified 
     in subparagraphs (A), (B), and (C) of paragraph (2).
       ``(ii) If the Secretary makes a determination under 
     paragraph (2)(D) with respect to a chronic condition, 
     develop, in consultation with appropriate physician groups, a 
     standard of care and quality standards for remote patient 
     management services for such condition within 1 year of such 
     determination.
       ``(iii) Periodically review and update such standards of 
     care and quality standards under this subparagraph as 
     necessary.''.
       (c) Payment Under the Physician Fee Schedule.--Section 1848 
     of the Social Security Act (42 U.S.C. 1395w-4) is amended--
       (1) in subsection (c)(2)--
       (A) in subparagraph (B)--
       (i) in clause (ii)(II), by striking ``clause (iv)'' and 
     inserting ``clauses (iv) and (v)''; and
       (ii) by adding at the end the following new clause:
       ``(v) Budgetary treatment of certain services.--The 
     additional expenditures attributable to services described in 
     section 1861(s)(2)(AA) shall not be taken into account in 
     applying clause (ii)(II) for 2006.''; and
       (B) by adding at the end the following new paragraph:
       ``(7) Treatment of remote patient management services.--In 
     determining relative value units for remote patient 
     management services (as defined in section 1861(bbb)), the 
     Secretary, in consultation with appropriate physician groups, 
     shall take into consideration--
       ``(A) costs associated with such services, including 
     physician time involved, installation and information 
     transmittal costs, costs of remote patient management 
     technology (including devices and software), and resource 
     costs necessary for patient monitoring and follow-up (but not 
     including costs of any related item or non-physician service 
     otherwise reimbursed under this title); and
       ``(B) the level of intensity of services provided, based 
     on--
       ``(i) the frequency of evaluation necessary to manage the 
     individual being furnished the services;
       ``(ii) the amount of time necessary for, and the complexity 
     of, the evaluation, including the information that must be 
     obtained, reviewed, and analyzed; and
       ``(iii) the number of possible diagnoses and the number of 
     management options that must be considered.''; and
       (2) in subsection (j)(3), by inserting ``(2)(AA),'' after 
     ``(2)(W),''.
       (d) Incentive Payments.--Section 1833 of the Social 
     Security Act (42 U.S.C. 1395l) is amended by adding at the 
     end the following new subsection:
       ``(v) Incentive for Meeting Certain Standards of Care and 
     Quality Standards in the Furnishing of Remote Patient 
     Management Services.--In the case of remote patient 
     management services (as defined in section 1861(bbb)) that 
     are furnished by a physician who the Secretary determines 
     meets or exceeds the standards of care and quality standards 
     developed by the Secretary under paragraph (3)(B) of such 
     section for such services, in addition to the amount of 
     payment that would otherwise be made for such services under 
     this part, there shall also be paid to the physician (or to 
     an employer or facility in cases described in clause (A) of 
     section 1842(b)(6)) (on a monthly or quarterly basis) from 
     the Federal Supplementary Medical Insurance Trust Fund an 
     amount equal to 10 percent of the payment amount for the 
     service under this part.''.
       (e) Effective Date.--The amendments made by this section 
     shall apply to services furnished on or after January 1, 
     2006.
                                 ______
                                 
      By Ms. MURKOWSKI:
  S. 2024. A bill to raise the minimum State allocation under section 
217(b)(2) of the Cranston-Gonzalez National Affordable Housing Act; to 
the Committee on Banking, Housing, and Urban Affairs.
  Ms. MURKOWSKI. Mr. President, I rise to introduce a bill that will 
increase the minimum funding level for low population States for the 
U.S. Department of Housing and Urban Development's HOME Investment 
Partnerships Program.
  This program was created when the Cranston-Gonzalez National 
Affordable Housing bill was signed into law in 1990. Funds were first 
appropriated for this program in 1992. HOME program funds are disbursed 
to State and local governments for the purpose of assisting with the 
expansion of housing for low-income families. These governmental 
entities have a great deal of flexibility when using these funds to 
implement the program's purpose.
  When this program was created, a minimum funding level of $3 million 
was created for States that would normally receive a small amount of 
HOME funds under the allocation formula, which is based on a State's 
population, among other parameters. Five States--Alaska, Delaware, 
Nevada, Hawaii, and North Dakota--received this level of funding for 
this program in fiscal year 2005. Bearing in mind inflation between 
1992--when this program was first funded--and 2005, a $3 million 
allocation in 1992 dollars decreased in value to $2,215,235 in 2005.
  This is unacceptable. My State is one of the most expensive areas in 
the country to develop housing, especially when one takes into account 
the cost to transport building materials to extremely remote areas of 
my State.
  This legislation increases the minimum State funding level for the 
HOME program to $5 million. Based on fiscal year 2005 allocations for 
this program, eight States received less than $5 million. Those States 
are: Alaska, Delaware, Nevada, Hawaii, Montana, North Dakota, Utah, and 
Wyoming. My proposed increase in funding would be offset by an overall 
decrease in allocations to other States. If a $5 million minimum 
funding level had been in place in fiscal year 2005, the other 42 
States would only have experienced an overall decrease of less than $13 
million. Bearing in mind that the amount appropriated in fiscal year 
2005 for this program is $1.865 billion, such a decrease in funds seems 
reasonable considering no changes have been made to the minimum State 
funding level since the HOME program was first funded in 1992.
  In addition, the congressionally appointed, bipartisan Millennium 
Housing Commission recommended increasing the minimum State funding 
level for the HOME program to $5 million in their May 30, 2002, report 
to Congress.
  It is imperative that we address this important issue so that we can 
address the housing needs of a greater amount of low-income families in 
low-population States.
  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. 2024

       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 ``Small State HOME Program 
     Equity Act of 2005''.

     SEC. 2. ALLOCATION OF RESOURCES.

       Section 217(b)(2)(A) of the Cranston-Gonzalez National 
     Affordable Housing Act (42 U.S.C. 12747(b)(2)(A)) is amended 
     by striking ``$3,000,000'' each place it occurs and inserting 
     ``$5,000,000''.
                                 ______
                                 
      By Mr. BAYH (for himself, Mr. Brownback, Mr. Lieberman, Mr. 
        Coleman, Mr. Graham, Mr. Salazar, Mr. Sessions, Mr. Nelson of 
        Florida, Mr. Lugar, and Mr. Obama):
  S. 2025. A bill to promote the national security and stability of the 
United States economy by reducing the dependence of the United States 
on oil through the use of alternative fuels and new technology, and for 
other purposes; to the Committee on Finance.
  Mr. LIEBERMAN. Mr. President, our dependence on foreign oil is 
sapping America's power and independence as a nation. It is urgent we 
begin now to diversify the fuels we use to power our vehicles or risk 
ceding our national power to the rulers of faraway deserts, distant 
tundras, steaming rain forests or off-shore, drilling platforms half a 
world away.
  I rise today as part of a bipartisan group of 10 Senators who 
represent the

[[Page 26148]]

American Northeast, South, Midwest and West to introduce the Vehicle 
and Fuel Choices for America Security Act.
  We chose this title because nothing less than our national security 
is at stake.
  Besides myself, the rest of the ``Gang of Ten,'' or the ``Energy 
Security Ten,'' as some call us are Senators Sam Brownback of Kansas, 
Evan Bayh of Indiana, Norm Coleman of Minnesota, Lindsey Graham of 
South Carolina, Ken Salazar of Colorado, Jeff Sessions of Alabama, Bill 
Nelson of Florida, Richard Lugar of Indiana and Barack Obama of 
Illinois. And we expect even more of our colleagues from both sides of 
the aisle will be joining us soon.
  I hope that in the future we all look back on the day this bill was 
introduced as the beginning of a major shift in our national security 
strategy. I hope that history will say we saw a challenge to our 
national security and prosperity and then met it and mastered it.
  A recent report by the International Energy Agency, IEA, sums up the 
urgent need for our legislation.
  According to the IEA, global demand for oil--now about 85 million 
barrels a day--will increase by more than 50 percent to 130 million 
barrels a day between now and 2030 if nothing is done.
  The industrialized world's dependence on oil heightens global 
instability. The authors of the IEA report note that the way things are 
going ``we are ending up with 95 percent of the world relying for its 
economic well-being on decisions made by five or six countries in the 
Middle East.''
  Besides the Mideast, I would add that Nigeria is roiled by 
instability, Venezuela's current leadership is hostile to us and 
Russia's resurgent state power has ominous overtones.
  In fact, we are just one well-orchestrated terrorist attack or 
political upheaval away from a $100-a-barrel overnight price spike that 
would that would send the global economy tumbling and the 
industrialized world, including China and India, scrambling to secure 
supplies from the remaining and limited number of oil supply sites.
  History tells us that wars have started over such competition.
  Left unchecked, I fear that we are literally watching the slow but 
steady erosion of America's power and independence as a nation--our 
economic and military power and our political independence.
  We are burning it up in our automobile engines and spewing it from 
our tailpipes because of our absolute dependence on oil to fuel our 
cars and trucks.
  That dependence on oil--and that means foreign oil because our own 
reserves are less than 1 percent of the world's oil reserves--puts us 
in jeopardy in three key ways--a convergence forming a perfect storm 
that is extremely dangerous to America's national security and economy.
  First, the structure of the global oil market deeply affects--and 
distorts--our foreign policy. Our broader interests and aspirations 
must compete with our own need for oil and the growing thirst for it in 
the rest of the world--especially by China and India.
  As a study in the journal Foreign Affairs makes clear, China is 
moving aggressively to compete for the world's limited supplies of oil 
not just with its growing economic power, but with its growing military 
and diplomatic power as well.
  Second, today we must depend for our oil on a global gallery of 
nations that are politically unstable, unreliable, or just plain 
hostile to us.
  All that and much more should make us worry because if we don't 
change--it is within their borders and under their earth and waters 
that our economic and national security lies.
  Doing nothing about our oil dependency will make us a pitiful giant--
like Gulliver in Lilliput--tied down by smaller nations and subject to 
their whims. And we will have given them the ropes and helped them tie 
the knots.
  We can take on this problem now and stand tall as the free and 
independent giant we are by moving our nation--and the world--on to 
energy independence, by setting America free from its dependence on 
oil.
  There is only one way to do this. We need to transform our total 
transportation infrastructure from the refinery to the tailpipe and 
each step in between because transportation is the key to energy 
independence.
  Barely 2 percent of our electricity comes from oil.
  Ninety six percent of the energy used to power our cars comes from 
oil--literally millions of barrels of oil per day. This is 
unsustainable and dangerous.
  The Vehicle and Fuel Choices for America Security Act aims to 
strengthen America's security by transforming transportation from the 
refinery to the tailpipe and each step in between, thus breaking our 
dependence on foreign oil.
  We start by making it our national policy to cut consumption by 10 
million barrels a day over the next 25 years.
  First, we need to rethink and then remake our fuel supplies. Gasoline 
is not the only portable source of stored energy. Tons of agricultural 
waste and millions of acres of idle grassland can be used to create 
billions of barrels of new fuels.
  Our farmers could soon be measuring production in barrels of energy 
as well as bushels of food.
  Then we must remake our automobile engines as well. Vehicles that get 
500 miles per gallon--or that use no refined crude oil--are within our 
grasp. I know that sounds unbelievable. I am going to tell you how we 
can do it.
  To help us get there, our bill also requires that by 2012, 10 percent 
of all vehicles sold in the U.S. be hybrid, hybrid-electric plug-in or 
alternative fuel vehicles. That number will rise by 10 percent a year 
until it reaches 50 percent in 2016.
  To help spur this market along, our bill amends our current energy 
policy to require that one quarter of federal vehicles purchased must 
be hybrids or plug-in hybrids.
  My bill will detail how we can get there with available technology 
and previously unavailable Federal Government leadership. Coupling 
these new programs with the explicit oil-savings goals for the Federal 
Government is the key to the effectiveness of this proposal.
  I can almost hear colleagues murmur, So, Senator Lieberman, what else 
is new? We've been hearing this for years and nothing has happened.
  I can't blame you if you are skeptical. The struggle for oil 
independence has been going on at least since Jimmy Carter was 
President.
  But things have changed since the days of Jimmy Carter and even since 
last summer. There is a new understanding of the depth of the crisis 
that our oil dependence is creating.
  This summer's doubling of gasoline and crude oil prices hit tens of 
millions of Americans with the global reality of oil demand and 
pricing. And Hurricane Katrina reminded us how vulnerable our supplies 
can become.
  This reality is bipartisan. And, along with my colleagues 
cosponsoring this bill, I think Americans are ready to set the serious 
goals that eluded us in the past and take the bold steps necessary to 
reach those goals.
  Now let me give you more details.
  The bill I will propose puts our Nation's transportation system on a 
new road--a road where the tanks are filled with more home-grown fuel--
and I do mean grown--not just American corn, but from American sugar, 
prairie grass, and agricultural waste.
  We will push harder for more and quicker production and 
commercialization of biomass-based fuels.
  The Energy bill signed into law last summer created a new set of 
incentives for these fuel alternatives, including their commercial 
production.
  What my bill would do--again, by including a mass-production mandate 
for alternative fuel vehicles--is ensure that the investments would be 
made in the facilities to produce and market these new fuels by 
providing big demand for them.
  The bill would also create a program to guarantee that filling 
stations had the pumps to provide the fuel to keep pace with the 
growing alternative-fuel fleet produced by the mandate.

[[Page 26149]]

  Is there a model to give us confidence we can achieve this 
transformation? Yes.
  Brazil is now enjoying substantial immunity from current high world 
oil prices, thanks to a long-term strategy, launched during the oil 
shocks of the 1970s, to integrate sugar cane ethanol into its fuel 
supply. They started initially with a mandate that all fuel sold in the 
country contain 25 percent alcohol. They are now up to 40 percent 
biofuels.
  In addition to the fuel mandate, Brazil offered low-interest loans 
and tax breaks for the building of distilleries and subsidized a fuel 
distribution network.
  Brazil has the advantage of a substantial sugar cane industry already 
in place. But we have our own vast potential to develop our own biofuel 
supply, using feedstock like corn, crop waste, switch grass, sugarcane 
and fast-growing trees and shrubs such as hybrid poplars and willows.
  According to the Department of Energy, if two-thirds of the Nation's 
idled cropland were used to grow these kinds of energy crops, the 
result could be dramatic. Those 35 million acres could produce between 
15 and 35 billion gallons of ethanol each year to fuel cars, trucks, 
and buses.
  That is about 2.2 million barrels of fuel a day from right here in 
the U.S.A.
  What Brazil offers us, more importantly, is a case study of 
government leadership to combine technology mandates and subsidies to 
wean its transportation sector from foreign oil to a domestic 
alternative.
  From this January through this July--before this summer's fuel 
spike--we have sent almost $100 billion out of the country to purchase 
oil, while the Brazilians are now relying on home-grown fuel.
  The key to their success is that they responded 30 years ago to the 
first storm warnings. We did not, and now the storm is at our shores, 
slapping against the levees of our economic strength and national 
security. We have to mobilize and lead a similar response as Brazil 
did.
  If we do this right, our farmers could soon be measuring production 
in barrels of energy as well as bushels of food. Our energy would be 
guaranteed ``Made in America'' and the profits would be guaranteed 
``Kept in America.''
  For all these new fuels to be effective, we need the flexible fuel 
vehicles that can take advantage of them.
  As I said earlier, our bill also requires that 50 percent of all 
vehicles sold in the U.S. be hybrid, hybrid-electric plug-in, or 
alternative fuel vehicles by 2016.
  Sound ambitious? It is not. It has already happened in Brazil. 
Several automakers selling cars in Brazil, including our own General 
Motors and Ford, already manufacture a fleet that is more than 50-
percent flexible fuel cars that can run on any combination of gasoline 
and biofuels.
  The technology exists now and adds a negligible cost--about $150--to 
the price of each vehicle. For this we get the flexibility to power a 
car with fuel made from corn, prairie grass, or agricultural waste from 
our own heartland that will cost a lot less than gasoline does today.
  Maximizing fuel efficiency and promoting energy independence even 
further would be a new generation of flexible-fuel hybrid cars known as 
plug-ins because you can plug them in at night to recharge the battery.
  Hybrids that use a use both a gasoline engine and electric motor for 
power are already getting 50 miles per gallon. Making them flexible 
fuel cars, as I've already said, can save us more than 2 million 
barrels of gasoline a day.
  But we can do even better--dramatically better--with the plug-in 
hybrid that is just now on the threshold of commercialization. Like the 
present hybrids, it would use both a gasoline and electric motor. But 
the plug-in hybrid would be able to use the battery exclusively for the 
first 30 miles of a trip.
  Think of that for a minute. Although Americans drive about 2.2 
trillion miles a year, according the Census, the vast majority of those 
trips are less than 15 miles.
  That means a plug-in hybrid would use zero--zero--gallons of gas or 
any combustible fuel for the vast majority of its trips. And experts 
tell me it could effectively get the 500 miles per gallon on longer 
trips.
  Plugging in your car during off peak hours--when power is in surplus 
and cheaper--would soon just become part of the modem daily routine, 
like plugging in your cell phone or PDA before you go to bed.
  And off-peak electricity can be the equivalent of 50 cent a gallon 
gasoline, I repeat--the equivalent of 50 cent a gallon fuel is 
feasible.
  Of course, electricity does not come magically through the wires to 
our homes. That power would come from coal, natural gas, nuclear, 
solar, wind or other sources--sources that we have in abundance here at 
home--and a little--very little--would come from oil.
  This isn't pie in the sky. These vehicles could be in your garage 
within a couple of years. Some of the incentives for achieving this 
were included in the Energy bill signed into law in August. But they 
did not go nearly far enough.
  We need to couple these incentives with real performance standards 
and sales requirements to ensure that as soon as possible new cars are 
running not just on gasoline but on biofuels and electricity.
  As always, there is a do-nothing crowd that says the ever-rising 
price of gasoline and crude oil are the cure--that with higher prices 
people will reduce consumption and the market will respond with greater 
investments in the supply of oil to bring prices down.
  But all that would do is perpetuate the problem. Market-driven oil-
dependency is still dependency on foreign oil, driving us further down 
the current path toward national insecurity and economic and 
environmental troubles.
  Some say that we can ease the crisis through greater domestic 
drilling--in places like the Arctic Refuge and other public lands or 
off our shores.
  But that won't make a dent in the problem. In the world of oil, 
geology is destiny and the U.S. today has only 1 percent of the world's 
oil reserves. And that small new supply wouldn't matter much in the 
global market, since the price of oil produced within the United States 
rises and falls with the global market, regardless of where it is 
produced.
  We just don't have enough oil in the U.S. anymore. And no matter how 
much more we drill, we will still be paying the world price of oil--not 
an American price.
  Our present energy and transportation systems were born at the end of 
the 19th and the beginning of the 20th centuries with the twin 
discoveries of oil extraction and the internal combustion engine. Those 
systems have served us well bringing growth to our Nation and the 
world.
  But it is now the 21st century, and it is time to move on. The era of 
big oil is over. It is time to revolutionize our entire energy 
infrastructure, from the refinery to the tailpipe, and begin a new era 
of energy independence.
  It is time to set America free by cutting our dependence on foreign 
oil and by doing so strengthen our security, preserve our independence 
and energize our economy.
                                 ______
                                 
      By Mr. LAUTENBERG (for himself, Mr. Kerry, Mr. Dorgan, and Mr. 
        Dayton):
  S. 2026. A bill to amend title XVIII of the Social Security Act to 
require that a prescription drug plan or an MA-PD plan that has an 
initial coverage limit obtain a signed certification prior to enrolling 
beneficiaries under the plan under part D of such title; to the 
Committee on Finance.
  Mr. LAUTENBERG. Mr. President, I rise to introduce the Medicare 
Prescription Drug Gap Disclosure Act with my colleagues, Senators 
Kerry, Dorgan and Dayton. This important legislation will require 
Medicare beneficiaries enrolling in a Medicare Prescription Drug Plan, 
PDP, or Medicare Advantage Drug Plan, MA-PD, with a potential coverage 
gap to sign a short, easy to read, statement indicating that they are 
aware of the potential loss of coverage.
  Yesterday, 42 million Medicare beneficiaries became eligible to sign 
up for

[[Page 26150]]

the new Medicare prescription drug benefit, scheduled to start on 
January 1, 2006. However, too many seniors are understandably confused 
about this complicated change to Medicare, and I fear that many may 
sign up for drug plans without understanding the major pitfalls of the 
program. The biggest pitfall in the drug plan is the notorious 
``coverage gap'' also known as the ``donut hole.''
  In the coverage gap, beneficiaries pay 100 percent of prescription 
costs after they exceed a certain level of out-of-pocket spending and 
before protection kicks in against catastrophic drug expenses. They 
also continue to pay 100 percent of their monthly premiums.
  We need to make sure that seniors are aware of the threat that the 
coverage gap poses, and it should not be hidden in a mountain of 
paperwork. My legislation would require plan providers to have 
beneficiaries sign the following certification before enrollment:

       I understand that the Medicare Prescription Drug Plan or 
     MA-PD Plan that I am signing up for may result in a gap in 
     coverage during a given year. I understand that if subject to 
     this gap in coverage, I will be responsible for paying 100 
     percent of the costs of my prescription drugs and will 
     continue to be responsible for paying the plan's monthly 
     premium while subject to this gap in coverage. For specific 
     information on the potential coverage gap under this plan, I 
     understand that I should contact [prescription drug plan] at 
     [toll free phone number].

  The bottom line is that, after months of trying to explain this new 
drug benefit to Medicare beneficiaries, many do not understand the 
ramifications of the coverage gap. Unfortunately, millions of Medicare 
beneficiaries may learn about the coverage gap the hard way--when the 
pharmacist at the cash register tells them sometime next year that they 
are suddenly required to pay the full cost of their prescriptions.
  Mr. President, a study by the Commonwealth Fund found that 38 percent 
of Medicare enrollees are likely to experience this costly interruption 
in care. Moreover, the benefits must be renewed each year, meaning that 
the coverage gap repeats itself if beneficiaries reach the coverage gap 
again.
  A recent survey by the Kaiser Foundation and the Harvard School of 
Public Health, found that only 35 percent of people 65 and older said 
they understood the new drug benefit. In addition, the numerous media 
stories in recent days contain anecdotal evidence that illustrates the 
confusion around the new drug benefit.
  I therefore urge my colleagues to support this bill. Only with such a 
clear, separate disclaimer will seniors have a fair opportunity to be 
warned of the risks posed by this gap in drug coverage.
  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. 2026

       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 ``Medicare Prescription Drug 
     Gap Disclosure Act''.

     SEC. 2. REQUIREMENT OF SIGNED CERTIFICATION PRIOR TO PLAN 
                   ENROLLMENT UNDER PART D.

       (a) In General.--Section 1860D-1(b)(1) of the Social 
     Security Act (42 U.S.C. 1395w-101) is amended by adding at 
     the end the following new subparagraph:
       ``(D) Special rule for plans with an initial coverage 
     limit.--
       ``(i) In general.--The process for enrollment established 
     under subparagraph (A) shall include, in the case of a 
     prescription drug plan or an MA-PD plan that has an initial 
     coverage limit (as described in section 1860D-2(b)(3)), a 
     requirement that, prior to enrolling a part D eligible 
     individual in the plan, the plan must obtain a certification 
     signed by the enrollee or the legal guardian of the enrollee 
     that meets the requirements described in clause (ii) and 
     includes the following text: `I understand that the Medicare 
     Prescription Drug Plan or MA-PD Plan that I am signing up for 
     may result in a gap in coverage during a given year. I 
     understand that if subject to this gap in coverage, I will be 
     responsible for paying 100 percent of the cost of my 
     prescription drugs and will continue to be responsible for 
     paying the plan's monthly premium while subject to this gap 
     in coverage. For specific information on the potential 
     coverage gap under this plan, I understand that I should 
     contact (insert name of the sponsor of the prescription drug 
     plan or the sponsor of the MA-PD plan) at (insert toll free 
     phone number for such sponsor of such plan).'.
       ``(ii) Certification requirements described.--The 
     certification required under clause (i) shall meet the 
     following requirements:

       ``(I) The certification shall be printed in a typeface of 
     not less than 18 points.
       ``(II) The certification shall be printed on a single piece 
     of paper separate from any matter not related to the 
     certification.
       ``(III) The certification shall have a heading printed at 
     the top of the page in all capital letters and bold face type 
     that states the following: `WARNING: POTENTIAL MEDICARE 
     PRESCRIPTION DRUG COVERAGE GAP'.''.

       (b) Effective Date.--The amendment made by this section 
     shall take effect on the date of enactment of this Act.

                          ____________________