Orrin Hatch

Mr. HATCH

Mr. HATCH. Mr. President, I commend my esteemed colleagues in the Senate for passing S. 3021, the Family Entertainment and Copyright Act of 2004, which I introduced today with the senior Senator from Vermont. This important legislation is actually a package of several smaller intellectual property bills that the House and Senate have been working to enact over the past 2 years. This bill strengthens the intellectual property laws that are vital to the ongoing growth of our economy. In addition to important clarifications to U.S. intellectual property laws, this bill also contains the Family Movie Act, introduced by Representative Lamar Smith, the Chairman of the House subcommittee with jurisdiction over intellectual property legislation. Title I of this Act, the Artists' Rights and Theft Prevention Act of 2003, the ART Act, contains a slightly modified version of S. 1932, authored by my colleagues Senators Cornyn and Feinstein, that passed the Senate by unanimous consent earlier this Congress. This bill will close two significant gaps in our copyright laws that are feeding some of the piracy now rampant on the Internet. First, it criminalizes attempts to camcord movies off of theater screens. These camcorded copies of new movies now appear on filesharing networks almost contemporaneously with the theatrical release of a film. Several states have already taken steps to criminalize this activity, but providing a uniform Federal law, instead of a patchwork of State criminal statutes, will assist law enforcement officials in combating the theft and redistribution of valuable intellectual property embodied in newly-released motion pictures. Second, the bill will create a pre-registration system that will permit criminal penalties and statutory damage awards. This will also provide a tool for law enforcement officials combating the growing problem of music and movies being distributed on filesharing networks and circulating on the Internet before they are even released. Obviously, the increasingly frequent situation of copyrighted works being distributed illegally via the Internet before they are even made available for sale to the public severely undercuts the ability of copyright holders to receive fair and adequate compensation for their works. Title II of this Act, the Family Movie Act of 2004, resolves some ongoing disputes about e legality of so-called ``jump-and-skip'' technologies that companies like Clearplay in my home state of Utah have developed to permit family-friendly viewing of films that may contain objectionable content. The Family Movie Act creates a narrowly- defined safe-harbor clarifying that distributors of such technologies will not face liability for copyright or trademark infringement, provided that they comply with the requirements of the Act. Throughout the 108th Congress, I have been working to resolve this issue with my colleagues in the Senate and several leaders in the House, including, most importantly Chairman Smith and Chairman Sensenbrenner. The Family Movie Act will help to end aggressive litigation threatening the viability of small companies like Clearplay who are busy creating innovative technologies for consumers that allow them to tailor their home viewing experience to their own individual or family preferences. I thank my friend, the senior Senator from Arizona, for his and his staff's assistance in drafting this version of the legislation to resolve concerns that the House version might affect entirely unrelated disputes about commercial-skipping technology. Apparently, some were concerned that language in the House bill stating that this particular safe-harbor provision was not intended to resolve disputes about the legality of commercial-skipping technologies might be construed by courts as evidence that Congress believes that such technologies violate the Copyright Act. - Courts do not, cannot, and should not construe the Copyright Act's safe harbors in this way. For example, when Congress created safe- harbor provisions for certain types of internet service providers, it did not imply that all others were violating the Copyright Act. Nevertheless, I am pleased that we were able to find language that satisfies all so that it is clear the Act's safe-harbor for family- friendly viewing technologies encode absolutely no judgment whatsoever about the proper resolution of entirely unrelated disputes about the legality of commercial-skipping technologies. It would have been tragic if we had allowed a special-interest dispute about advertising to deny parents access to technologies that give them and their children the opportunity to watch movies without being exposed to profanity or images of rape, sex or murder. Title III of this Act, the National Film Preservation Act of 2004, will reauthorize the National Film Preservation Board and the National Film Preservation Foundation. These entities have worked successfully to recognize and preserve historically or culturally significant films, often by providing the grants and expertise that enable local historical societies to protect and preserve historically significant films for the local communities for which they are most important. This fine work will ensure that the history of the 20th century will be preserved and available to future generations. As a conservative Senator from a socially-conservative-state, I occasionally take a few swings at the movie industry for the quality and content of the motion pictures they are currently creating, but I will note for the record that I commend efforts to ensure that important artistic, cultural, and historically-significant films are preserved for future generations, and I commend the Senator from Vermont for his perseverance in reauthorizing federal funds to continue this important effort. Title IV of this Act, the Preservation of Orphan Works Act, also ensures the preservation of valuable historic records by correcting a technical error that unnecessarily narrows a limitation on the copyright law applicable to librarians and archivists. This will strengthen the ability of librarians and archivists to better meet the needs of both researchers and ordinary individuals and will result in greater accessibility of important works. I applaud my colleague in the House, Representative Howard Berman of California, for his efforts on this bill and am pleased to see it included in this Senate package. Title V of this Act, the Anticounterfeiting Act of 2004, amends our criminal and civil anticounterfeiting laws to ensure that these laws keep pace with the counterfeiters. Traffic in counterfeit copies of goods protected by American copyrights, patents or trademarks has become a multi-billion dollar drain on our economy. The proceeds of this illegal traffic are stolen from legitimate American companies and then used to fund other criminal enterprises. Unlike several of the other bills in this package that provide tools for combating music and movie piracy, the Anticounterfeiting Act is directed primarily toward combating counterfeiting practices that enable software piracy around the world. To combat this counterfeiting, companies are using increasingly sophisticated authentication features to distinguish genuine, authorized copies of their products and to protect their customers and distributors. Now, the counterfeiters are fighting back by counterfeiting authentication features or by stealing legally produced authentication features and selling them to counterfeiters. The Anticounterfeiting Act of 2004 will impose criminal and civil penalties upon those who traffic in counterfeit or stolen authentication features. This will ensure that law-enforcement agencies and private rights-holders can halt criminal traffic in counterfeit or stolen authentication features before it even creates an illusion of authenticity that allows counterfeit goods to penetrate legitimate markets and endanger both the growth of our economy and the personal safety of our citizens. Title VI of this Act, the Cooperative Research and Technology Enhancement Act of 2004, the CREATE Act, will create new opportunities to innovate when public institutions and private entrepreneurs combine their respective forms of expertise in collaborative, joint research efforts. This type of joint private-public research effort is well- suited to, in the words of President Lincoln, add ``the fuel of interest to the fire of genius in the production of new and useful things.'' As a result, we have long realized the enormous value of these joint research efforts, and we have long realized that their potential cannot be realized unless their participants can benefit from the intellectual property rights generated by such research. Unfortunately, the literal language of Section 102(g) of the Patent Act suggests that nonpublic information known to some members of a private-public research team can constitute ``prior art'' that may make the final results of the team research obvious, and thus not patentable. Because non-public information does not usually constitute ``prior art'' under the Patent Act, the potentially disparate treatment of such information creates a disincentive for entrepreneurs and public institutions to collaborate in joint research efforts. I believe that we must encourage, not discourage, public institutions and private entrepreneurs to combine their respective talents in joint research efforts. Indeed, Congress committed itself to this principle when it passed the Bayh-Dole amendments to the Patent Act. The CREATE Act will simply conform the present language of the Patent Act to the intent that has always animated it. I commend Chairman Smith and his staff for their efforts on this legislation and am pleased that it has been made part of this package of bills. Before I close, I thank all my colleagues and their staff who made passage of this bill today possible. In particular, I commend staff of both Judiciary Committees, including my own staff, Tom Sydnor and Dave Jones, and also Susan Davies, Chip Roy, Rich Phillips, Dan Fine, Jeff Miller, Jonathan Schwantes, Jonathan Meyer, Brooke Roberts, Bill Bailey, Lee Carosi, Jim Hippe, Joseph Gibson, Bill Bailey, Blaine Merrit, David Whitney, Joe Keeley, Alec French, and Sampak Garg. Finally, I must note that the bicameral, bipartisan approach to these bills in particular and to intellectual property issues in general is a model we should strive to achieve in the 109th Congress.

Mr. HATCH

Mr. HATCH. Mr. President, I would like to take a moment to honor my good friend and colleague, Senator Ben Nighthorse Campbell of Colorado. Ben is my best friend in the Senate. I know every one of my Senate colleagues would join me in expressing how much we care for Senator Campbell and how much we will miss him here in the Senate. I have always considered Ben to be larger than life, someone you would read about in a novel about the Senate than someone actually serving in the Senate. He is a high-school dropout who became a United States Senator, a veteran of the Korean war, captain of the U.S. judo team, and an extremely successful horse breeder and jeweler. He doesn't conform to any stereotypes. No other senators--let alone Republicans-- wear a ponytail, ride a Harley-Davidson to work, or stubbornly refuse to wear any neckwear more formal than a western bolo tie. But I am sure I am not surprising any of you by saying Ben is not your typical politician. One of my favorite stories about Ben's independent streak is from a town meeting he held back when he was a Member of the House. A constituent asked Ben a question, and Ben did his best to answer it. The gentleman didn't like the response, so he tersely rephrased the question and Ben answered it again. The man got very upset, and said ``You have not answered my question!'' Ben firmly told him, ``Look, you asked a question, I answered it. You asked me again, and I answered it. Now I can't help it if you don't like the answer you got, but these other folks are waiting to ask questions of their own, so you and I are just going to have to agree to disagree.'' Ben started to call on another person when the man jumped out of his chair and yelled to Ben, ``I don't believe you are taking all of the facts that I've stated into account, and you are not going to simply dismiss me like that. I am a taxpayer, and I pay your salary, and I demand an answer!'' Ben, through gritted teeth, said, ``You know, I hate it when people feel that because you're an elected official, they somehow own you. Do you realize that my salary costs every man, woman and child in this country about one-half of one cent each year?'' At that point, Ben reached into his pocket, pulled out a penny, flipped it to the man, and said, ``Here's your refund!'' He turned to the audience and yelled, ``Next question!'' The audience cheered and the man left the meeting. Now that is a good description of the Ben Nighthorse Campbell that I have come to know and love. Most of you know that I have sat next to Ben during policy lunches ever since he saw the light and switched parties so many years ago. I still love to tell the story of when he decided to move over to the right side of the aisle. Ben and I became good friends soon after he joined the Senate, and we repeatedly discussed his growing disillusionment with the policies and politics of those on other side of the aisle. I would point out that power, its accumulation and retention, seemed to be of greater importance to some on his side than finding the right answer, that the worth of an issue should not always be measured simply by political advantage. He would disagree, but over time his protests would grow fewer and less heartfelt. I was surprised when Ben stopped me one day nearly 10 years ago and said, ``Orrin, you're right. I can't stand it anymore over here.'' He asked whether I could arrange for him to see Senator Dole, and I said, ``I believe I can''--3 minutes later we were in Bob Dole's office. Bob had the biggest smile on his face I had ever seen and gave Ben a warm hug. He commented about the courage and principle it took to make such a decision, but he didn't need to make a hard sell. It was obvious Ben had already made up his mind to become a Republican. I can vividly remember when Ben attended his first Republican policy luncheon. Ben and I had discussed how disappointed he was with the direction and tone of the Democrat policy meetings. He said they had devolved from honest discussions of differences into angry, one-sided shouting matches dominated by some of the most senior and well-known members. If you didn't agree with their liberal positions, your view wasn't welcome. I assured Ben that the Republicans were different. We showed great respect for one another and there was always considerable deference given to differing points of view. When Ben and I took our places at the back of the room--where we have sat together since that day--a quiet discussion soon broke out into bitter argument. One person jumped up, anger seething from his face, stared at another very senior member with a snarl on his face, and then called him a derogatory name. Everyone started shouting, and it took Bob Dole several minutes to restore order. Ben's eyes got larger and larger as he watched what was happening, then without turning his head, he gave me a quick jab in the ribs. ``Gee, Orrin,'' he muttered, ``it's sure good to see how well we Republicans get along compared to those darn Democrats!'' Thankfully, Ben's decision to join the Republican Party wasn't solely based on policy lunches. I have plenty more stories to tell of my good friend from Colorado, but I will close by saying that I will miss Ben dearly and wish him the very best as he starts the next phase in his life. I know him too well to think that this is really a retirement from public service. This is just the end of one phase of service that will open up several other ways for him to reach out and make a difference in the lives of those around him. Zell Miller Mr. President, I am grateful for the chance to take a few moments to recognize my good friend from across the aisle, Senator Zell Miller of Georgia. Zell is one of my best friends in the United States Senate. I know every one of my Senate colleagues would join me in expressing how much we care for Senator Miller and how much we will miss him. It is no secret that Zell is his own man, someone who does what he believes is right, not what is politically expedient. His values were shaped while growing up in the South, raised by his strong mother and reinforced through his service in the U.S. Marine Corps. And for those who say you cannot be a successful politician without sacrificing some of your principles, I point to my good friend from Georgia. When he finishes his Senate term this year, he will complete nearly six decades of publicly elected service, starting with his first election as mayor of his hometown of Young Harris, Georgia, in the late 1950s. Zell was a popular two-term Governor of Georgia in fact, he was named the most popular Governor in America by The Washington Post in 1998. His popularity came from his successful programs that found national acclaim among them was passing the Nation's first ``two strikes and you're out'' law against violent felons, starting the Nation's only voluntary pre-kindergarten program for 4-year-olds, and creating the nationally acclaimed HOPE scholarship that has had such tremendous success in Georgia. My good friend swept into the Senate to complete the remaining 4 years of the late Senator Paul Coverdell. Many political observers call Zell the last of the Southern conservative Democrats to serve in the Senate. He has certainly established himself as a strong voice for the conservative, commonsense approach to issues, reaching across the aisle to support tax cuts, improve education, confirm judicial nominations, and strengthen national security. Zell is widely known for his straight talk on the issues you know where he stands and what he stands for, and everything he says comes straight from the heart. I can't tell you how many times a constituent from my home State of Utah will write to tell me how inspired they were by a speech that Zell had given on this Senate floor. I am sorry to see Zell leave, but I am grateful for the service he has given these last 4 years. He is beloved by Georgians, and I know he would have easily been reelected, and he is beloved by millions in America. And, last but not least, he is beloved by his colleagues here in the Senate. Peter G. Fitzgerald Mr. President, I would like to take a moment of the Senate's time, as we near completion of our duties for the 108th Congress, to honor the work and contribution to Republican Party, the Senate, and the Nation of my friend, the Senator from Illinois, Senator Peter Fitzgerald. Senator Fitzgerald has chosen to take his youth and talents and serve in other areas outside of the Senate. Our loss will be, no doubt, the gain of others. Senator Fitzgerald provided a good, youthful, and modern face to the Republican Party. Our party will only stay strong if we maintain within it our own diversity of perspectives, and I am grateful for the contribution of Senator Fitzgerald. Elected to the Senate in 1998 at the very young age of 38, the Senator immediately added his vigor, intelligence, and experience in financial markets to address many of the complicated issues faced by your Government and society as the Nation turned into the 21st century. When corporate scandals erupted early in this century, threatening to undermine confidence in markets, the Senate was, indeed, fortunate to be able to turn to Senator Fitzgerald for his thoughtful and informed guidance. As a former commercial banking attorney, he used his expertise in his positions on the Commerce and Governmental Affairs Committees, particularly his chairmanship of the subcommittee on Financial Management, the Budget and International Security, to chair or support numerous hearings to illuminate the problems and necessary legislation we needed to return probity to financial dealings and confidence in our markets. The modern capitalist system is what provides growth and wealth to all the societies of the world, and the American markets are the most dynamic in the world. They are also the most diversified, and the vast majority of our citizens depend on them for employment, security and retirement. We owe a great deal of appreciation to Senator Fitzgerald for his work on corporate fraud issues, and I would like to thank him, once again. Senator Fitzgerald is a reformer, through and through. It is his dedication to our system of Government and economy that drove him to find ways to improve it. He applied his drive to reform to consumer issues, Government affairs, financial management, and the complicated mesh of revenue collection that is the current tax system of this country. And he quite deservedly received numerous acclamations from groups advocating for consumer and tax reform. Through this all, he never lost his focus on his home State. He didn't work for Illinois to get re-elected, he worked for Illinois because of his dedication to his State and his high standards of public service. A column in the Chicago Tribune, a good paper not known for being ragingly Republican, commended him for ``elevating courage and honesty to new heights.'' That sounds right to me. I will miss the presence of Senator Fitzgerald, his thoughtful floor statements before this body, and the impeccable manners of a gentleman that are so naturally his. His State can be proud of the Republican they sent to serve too briefly in this body. We will miss his intelligence and dedication, and I will miss a good Senator and friend. I expect that, with his relative youth, we will hear much more of Peter G. Fitzgerald. Don Nickles Mr. President, I rise today to express my sincere gratitude for having had the opportunity to serve with Senator Don Nickles, and to wish him the very best as he retires from the Senate. A lot of descriptive words come to my mind when I think of Don Nickles. Among the most prominent are courageous, knowledgeable, and engaging. All three of these, as well as many other of Don Nickles' qualities, will be sorely missed in the United States Senate. I can think of no other Member of the Senate who has been a more rock solid beacon for conservatism than Don Nickles. His is the kind of courage that leads him to speak up alone against the whole world, if necessary, for what he believes. No matter what the issue or whether it is brought up on the floor of the Senate, in one of his committees, or in some other forum, Don Nickles is willing to speak up in his earnest yet friendly manner to ask questions, raise concerns, and stand up for conservative principles. Senator Nickles has been one of the most articulate Senators I have seen in my 28 years of service in the Senate. His voice, in defense for what he and many of us believe to be right, will be noticeably absent in the months and years to come. Senator Nickles is also one of the most knowledgeable Members of this body. I have long been impressed with his grasp of minute details of economic, tax, and budget issues. His major committee assignments, Budget, Finance, and Energy, all cover complex issues that can take a huge amount of effort to master. Yet, Don clearly does his homework and seems totally at ease in discussing details of the budget or a comprehensive tax bill. As chairman of the Budget Committee, Senator Nickles has served with distinction. With all the challenges facing the budget in the recent past, Don has presided over that committee in particularly trying times. Yet, he has exhibited patience and perseverance in the midst of a number of very difficult problems. Every citizen of this country owes him a debt of gratitude for his service on our behalf. Don Nickles is also one of the most engaging individuals I have had the privilege of knowing. His quick smile and friendliness to not only other Senators, but also to Senate staff and to everyone he meets marks him as a genuinely fine individual. I know Don has a deep faith in God and strives to do his best to live according to his convictions. As Senator Nickles moves on toward the next stage in his impressive career, I wish him the very best and hope that we have the opportunity to see him regularly and to have the benefit of his wisdom and knowledge for many years to come. Tom Daschle Mr. President, I am grateful for this opportunity to say a few words about our friend and colleague, the distinguished minority leader, Senator Tom Daschle. Tom's commitment to public service, on behalf of the people of South Dakota and America, is an example I hope more citizens will follow. He served here as a Senate staff member before being elected to the House of Representatives in 1978. South Dakota is one of just seven States with a single House member, which required Tom to run a statewide race. That was familiar territory for him when he ran for and won his Senate seat in 1986. Tom is one of 49 Senators who previously served in the other body, experience which I believe enhances their service here and makes the Senate more effective in serving all Americans. Yesterday, our colleague Senator Durbin said that it is hard to imagine the Senate without Tom Daschle. Some might merit that compliment because of the sheer length of their tenure. Tom merits it because of the presence he quickly established, both as a Member and as a leader in this body. He was only 2 years into a second term when his fellow Democrats elected him their leader by just one vote. Only Lyndon Johnson became his party's leader more quickly. Tom's 10 years as Democratic leader included periods as both majority and minority leader. Those positions, especially in a narrowly divided chamber, are each very challenging and each very different. Tom served in each post with class and determination, unifying his caucus and working to achieve their agenda. Needless to say, we have not agreed on every element of that agenda. But in this political world, it is really a compliment to say that Tom effectively and skillfully used whatever tools were available to fight for what he believed and for what his caucus wanted to achieve. Even when we were at loggerheads, when it seemed like the irresistible force was meeting the immovable object, civility has always marked Tom Daschle's presence in this body, as a Senator and as a leader. I was gratified to hear Senator Daschle's comments on this floor yesterday and a few things really stood out. First, I was struck by the fact that he his number in the chronological list of United States Senators is 1776. Tom offered the valuable reflection that he is, as we all are, part of the broad sweep of American history, from the American revolution to the 108th Congress and into the future. Second, Tom asked a very important question, whether our power comes just from military might or also from wisdom, compassion, tolerance, and willingness to cooperate. Everyone who serves in this body should maintain that perspective. Third, Tom spoke of what he called the politics of the common ground. Individual Senators, as well as the two political parties, have certain bottom-line issues, certain fundamental principles or positions on which they just find little room to give. But on others, and I sometimes wonder whether this list is longer than we might think, we must practice the politics of common ground. Reminding us of that was, by itself, an act of leadership by the minority leader. And finally, he told us of a note he wrote on one of his famous unscheduled driving trips across his State. He wrote, ``Everything was worth doing.'' Each of us who has worked alongside Tom Daschle, whether on the same or opposing sides, knows that this is his approach to, and attitude about, public service. That sets a good example for us all. Bob Graham

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to commend my colleagues on passage of S. 2154, Dru's Law. After last year's abduction of Dru Sjodin in North Dakota, Senator Dorgan introduced this bill to address a problem with our sex offender registry. The problem is simple, yet great: There is no public national sex offender registry. Each State maintains its own registry of sex offenders, but there is no national database for the public to search. I was pleased to support this legislation when it was referred to the Judiciary Committee and was happy to work with Senator Dorgan to improve the language of the final bill. Dru's law directs the Attorney General to make available to the public, via the Internet, a national registry of sex offenders. It also requires each State to provide timely notice to the State's attorney general of the impending release of a high-risk sex offender; and upon such notification, the State's attorney general is required to consider whether to institute a civil commitment proceeding. States must intensively monitor for at least 1 year any high-risk sex offender who has not been civilly committed and has been unconditionally released from incarceration. I want to thank my colleague Senator Dorgan for his dedication to this legislation.

Mr. HATCH

Mr. HATCH. Mr. President, I rise to introduce with my colleague, Senator Biden, the Controlled Substances Export Reform Act of 2004. This bill would make a minor, but long overdue, change to the Controlled Substances Act to reflect the reality of commerce in the 21st Century and to protect high-paying American jobs, while maintaining strong safeguards on exports. Before I discuss this bill, I want to thank Senator Biden for working with me on this important legislation. Senator Biden has long been recognized as a national leader on drug-related measures, and we have a history of working together on a bipartisan basis to enact sensible reforms in this area, as evidenced by the recent enactment of our steroid precursor bill. I respect his thoughtful collaboration, and I thank him for his work on the proposal we are introducing today. In sum, this proposed legislation will amend the Controlled Substances Act of 1970 providing greater parity for U.S. manufacturers, who wish to export their products while retaining full DEA authority over U.S. exports. Current law places severe restrictions on exports of certain drug products from the United States. The Controlled Substances Export Reform Act proposes to amend that law to correct one small, but onerous provision that is unnecessarily threatening American jobs. This change is entirely consistent with the long-established regulatory scheme pursuant to the Federal Food, Drug and Cosmetic Act. At present U.S. pharmaceutical manufacturers are permitted to export most controlled substances only to the immediate country where the products will be consumed. Shipments to centralized sites for further distribution across national boundaries are prohibited. This contrasts with the freedom of pharmaceutical manufacturers throughout the rest of the world to readily move approved medical products among and between international drug control treaty countries without limitation or restriction. The unique prohibitions imposed on domestic manufacturers disadvantage U.S. businesses by requiring smaller, more frequent and costly shipments to each country of use without any demonstrable benefit to public health or safety. By imposing significant logistical challenges and financial burdens on U.S. companies, the law creates a strong incentive for domestic pharmaceutical manufacturers to move production operations overseas, threatening high-wage American jobs. The Controlled Substances Act of 1970 permits U.S. manufacturers of Schedule I and II substances and Schedule III and IV narcotics to export their products from U.S. manufacturing sites only to the receiving country where the drug will be used. The law prohibits export of these products if the drugs are to be distributed outside the country to which they are initially sent. The effect of this restriction is to prevent American businesses from using cost-effective, centralized foreign distribution facilities. In addition, under the current regime, unexpected cross-border demands or surges in patient needs cannot be met. Likewise, complex and time- sensitive export licensing procedures prevent the shipment of pharmaceuticals on a real time basis. European drug manufacturers face no such constraints. They are able to freely move their exported products from one nation to another while complying with host country laws. This is entirely consistent with the scheme of regulation imposed by international drug control treaties. Only the United States imposes the additional limitation of prohibiting the further transfer of controlled substances. Thus, while a French or British company can ship its products to a central warehouse in Germany for subsequent distribution across the European Union, an American company must incur the added costs of shipping its products separately to each individual country. The Controlled Substances Export Reform Act would correct this imbalance and permit the highly regulated transshipment of exported pharmaceuticals placing American businesses on an equal footing with the rest of the world. Importantly, however, DEA's authority to control U.S. exports would not be diminished. The legislation authorizes the Attorney General, or his designee, the DEA, to permit the re-export of Schedule I and II substances and Schedule III and IV narcotics to countries that are parties to the Single Convention on Narcotic Drugs and the Convention on Psychotropic Substances under tightly controlled circumstances: First, each country is required to have an established system of controls deemed adequate by the DEA. Next, only permit or license holders in those countries may receive regulated products. Third, re-exports are limited to one single cross-border transfer. Then the DEA must be satisfied by substantial evidence that the exported substance will be used to meet an actual medical, scientific or other legitimate need, and that the second country of receipt will hold or issue appropriate import licenses or permits. Fifth, in addition, the exporter must notify the DEA in writing within 30 days of a re-export. And finally, an export permit must have been issued by the DEA. These safeguards are rigorous but fair, and represent a much-needed modernization of the law. The current restrictions on U.S. pharmaceutical exports have remained essentially unchanged for more than thirty years. In that time, the global economy has changed dramatically. For those among us who express concerns about the outsourcing of American jobs and the competitiveness of U.S. companies, this modest change represents an opportunity to address such problems head-on. The Controlled Substance Act's limitation on U.S. pharmaceutical exports imposes unique, unnecessary, and significant logistical and financial burdens on American businesses. The effect of this outdated policy is to create a strong incentive for domestic pharmaceutical companies to move production overseas, threatening American jobs and eliminating DEA jurisdiction over the manufacture and shipment of their products. The Controlled Substances Export Reform Act removes this unwarranted barrier to U.S. manufacturers' use of cost-effective distribution techniques while retaining full DEA control of U.S. exports and re-exports. Accordingly, I urge my colleagues to join Senator Biden and myself in support of this bill. section 1003 I appreciate the distinguished Senator from Delaware's work on this legislation and am pleased to join with him in correcting this small, but important provision of law. Section 1003 of the Controlled Substances Import and Export Act currently permits U.S. pharmaceutical manufacturers to export schedule I and II drugs and schedule III and IV narcotics only to the exact country where the products will be used. While American companies are prohibited from using centralized foreign distribution facilities, our international competitors face no similar restrictions and can freely ship medicines for cross-border distribution between all international drug control treaty countries.

Mr. HATCH. Yes.

Mr. HATCH. Yes, the Senator is correct. In addition to the burden imposed on U.S. manufacturing exporters, the advent of the European Union has created a situation that places our foreign distributors in violation of European law. Member countries of the EU are considered borderless in terms of trade. Products introduced into the European Union are required to be available for transport and shipment among and between all member countries under their law. However, because we don't recognize the European Union as a single entity and cross-border transfers are prohibited, our distributors are placed in the position of violating European law in being forced to deny inter-country distribution of U.S. drugs.

Mr. HATCH. Yes.

Mr. HATCH. That it is correct. The purpose and intent of this legislation is to place U.S. pharmaceutical companies on equal footing with their international competitors. Moreover, this change is entirely consistent with the long-established regulatory scheme pursuant to the Federal Food, Drug and Cosmetic Act. Eliminating the need for multiple, small shipments and the associated wasteful, small batch testing, will save U.S. companies nearly 80 percent over current export distribution costs, savings that will result in more American jobs and stronger international markets for U.S. products. As the Senator noted, the bill has been crafted with the assistance of the Drug Enforcement Administration to ensure all necessary controls will remain in place while creating a level playing field for American business. It is simply a commonsense update to an outdated law, and I urge its passage.

Mr. HATCH

Mr. HATCH. Mr. President, every year U.S. businesses lose several billion dollars in revenues due to international theft of their products. Every time a book is photocopied without permission, a bootleg movie DVD is sold, or a piece of music is downloaded from the Internet, engineers, authors, musicians, actors, technicians, camera crews, lighting crews, building owners, investors--indeed, everyone involved in the process--lose money. The United States has long been the world leader in the creation of products protected by intellectual property. Almost every growing industry in the United States uses intellectual property laws as the single most important tool they have to ensure their companies will be viable and competitive in the world marketplace. Millions of employees throughout the United States can directly or indirectly tie their jobs to companies who use intellectual property protections for their products. Because intellectual property is so important to the U.S. economy, our Government has a long tradition of working hard with the international community to enforce the basic and fair rights established by intellectual property law. Enforcement of these rights in foreign countries is extremely important to the U.S. economy and so the Congress has long provided Government officials with the direction and tools they need to pursue fair treatment of intellectual property on an international basis. Be it through the Trade Act of 1974 or through the WTO establishment of the Agreement on Trade-Related Aspects of Intellectual Property Rights, TRIPS Agreement, the U.S. Government has been very active in pursuing the protection of intellectual property that brings me to the bill at hand. As passed by the Senate on March 4, 2004, H.R. 1047 contained five important measures that would have given the U.S. Government more tools in our effort to protect intellectual property around the world. Specifically, the five intellectual property sections of H.R. 1047 would provide the U.S. Trade Representative additional time to negotiate and consult with countries prior to bringing a World Trade Organization intellectual property dispute; it would have given companies and innovators the ability to request the U.S. Government suspend certain trade benefits to Caribbean and Central American countries who are not meeting their intellectual property commitments; and it would have standardized the criteria for adequate and effective protection of intellectual property under several U.S. trade programs, thereby giving U.S. companies greater ability to protect their IP in several countries around the world. Unfortunately, during the conference with the House, H.R. 1047 was stripped of four of the five IP protections I just outlined. This is of great concern to me. I fear the House conferees who were opposed to these important IP measures are selling our economy short and jeopardizing thousands of U.S. jobs. Failure to pass these important protections diminishes the U.S. Government's ability to encourage foreign governments to crack down on intellectual property violations. It is difficult to motivate foreign governments to seek out and prosecute those who steal the property of U.S. companies and sell it to consumers at reduced prices. However, this language would have provided an extra incentive for foreign governments to prosecute intellectual property theft and, hopefully, would have led to billions of dollars of additional U.S. exports across several industries. Few U.S. industries enjoy a positive trade balance in the world marketplace; however, those few U.S. industries which do enjoy large positive trade balances with other countries depend on strong, internationally enforced intellectual property protections. It is beyond me why anyone would want to make it more difficult for these industries to enforce their property rights internationally. It is beyond me why anyone would want to stand idly by and watch American employees get ripped off by foreign companies. Although this legislation was stripped of most of the intellectual property protections I worked so hard to include, I am supporting its passage because it provides tariff relief to many industries throughout the country. Many of our Nation's largest manufacturers and employers in industries such as agriculture, textiles, chemicals, pharmaceuticals, electronics, heavy equipment, and food and beverages all benefit greatly from the reduced tariffs provided by this legislation. In fact, several large employers in my home State of Utah will benefit directly from this legislation. The reduced tariffs contained in this bill will provide these companies with the ability to compete for effectively in the global marketplace, to sell more products and services throughout the world, and create jobs in Utah. For these important reasons, I will support this legislation. Although the Senate has not been able to take advantage of this opportunity to pass four very important intellectual property provisions on the Miscellaneous Tariffs Bill, I am hopeful that we can come together at the start of the 109th Congress and take up and pass these important protections. Those industries which depend on IP protections agree that we need them; the U.S. Trade Representative's Office agrees that we need them; and I call on my Senate colleagues to work with me next Congress to pass these important tools to help us combat international IP theft. I yield the floor.

Mr. HATCH

Mr. HATCH. Mr. President, over the last several years, a significant and growing body of scientific research has emerged detailing the important role micronutrients play in the prevention of many types of chronic disease. While the science supporting optimal nutrition for disease prevention has grown, the average American's diet has progressively gotten worse. As we have heard so often, a large percentage of Americans do not eat the right mix of foods to meet the Government's RDIs--or recommended daily intakes. Our top nutrition priority should be getting people to eat a more varied, balanced diet. However, there is a simple and inexpensive way to help Americans get many of the micronutrients they need--encourage the use of a daily multivitamin. Multivitamins--as a complement to a healthy diet--are a simple, safe and cost-effective preventive measure. Indeed, several recent studies have shown their efficacy. For example, in June 2002, an article published in the Journal of the American Medical Association recommended that all Americans take a multivitamin daily to help prevent chronic diseases such as heart disease, cancer and osteoporosis. A year late, the Journal of Nutrition published the results of the Stockholm Heart Study, which showed that the use of multivitamins may aid in the prevention of heart attacks. In March, a study published in the Annals of Internal Medicine found that multivitamin use decreased the risk of infection for people with diabetes. And the science continues to mount demonstrating the potential of daily multivitamin use which can have a whole range of benefits. These include reducing the incidence of neural tube defects by 50 percent or more, decreasing the number of sick days in the elderly due to infectious illnesses by up to 50 percent, delaying or avoiding more than 20 percent of hip fractures caused by osteoporosis, delaying the onset of cataracts and age-related macular degeneration, reducing the incidence of heart disease, stroke and possibly Alzheimer's, and protecting against some types of cancer. Additionally, I would like to recognize a study that was commissioned by Wyeth Consumer Healthcare and conducted by The Lewin Group. The study examined the potential cost savings--within the Medicare health care model--that could occur if more of our aging population took a daily multivitamin. This study also served as a means for evaluating the impact daily multivitamin use can have on preventive health, particularly in the areas of cardiovascular disease and immune function. The results of the study indicate that increased multivitamin use by adults over 65 could result in an estimated savings to Medicare of more than $1.6 billion over a 5-year period. Research shows that a significant number of elderly in our country do not receive proper amounts of essential vitamins, minerals and other nutrients, making them more vulnerable to disease and infection. By adding a multivitamin to their diets, seniors--and all Americans--can help ensure they get the nutrients they need to stay healthy. While it is always prudent for an individual to take supplements in close consultation with his or her health care advisers, it is obvious from the research that dietary supplements continue to have important health care benefits for consumers and policymakers alike. I ask unanimous consent that the attached release outlining the Lewin study printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, I am delighted to take this opportunity to recognize the 90th Anniversary of ASCAP, the American Society of Composers, Authors and Publishers. In 1913, nine men braved foul New York weather to attend a small meeting at a restaurant called Luchow's. The meeting had been organized by three of the men; Raymond Hubbell, a composer, George Maxwell; a publisher; and Nathan Burkan, an attorney. They were brought together by the novel idea of creating a society to ensure writers and publishers received the recognition and revenue their works generated. Enlisting the help of songwriter Victor Herbert, the group found five other writers and publishers to get the word out. A second meeting was scheduled, and in February 1914, over 100 members of the music community officially began the American Society of Composers, Authors and Publishers. In the time that has passed, ASCAP has represented many of the greatest musical talents in recent history. The society's members have included Louis Armstrong, Cab Calloway, Peggy Lee, Garth Brooks, Jimmy Hendrix, Carly Simon, Bob Marley, Henry Mancini, Billy Joel, Bruce Springsteen and Madonna. Members have won countless awards for their work, including current president Marilyn Bergman, who, in collaboration with her husband, has won three Oscars, two Grammys and four Emmys. Under her outstanding leadership it has grown to 185,000 members, including many of the newest and greatest names in music. This year, ASCAP celebrates its 90th anniversary in a time of great importance to the music copyright community. With the current debate over file sharing and constantly developing technology, individual artists are virtually powerless to protect their own work from illegal copying. As a songwriter and member of ASCAP myself, I truly understand the joy and pride that comes with the creation of a song, as I also understand the need for artists' rights to their songs to be protected. I have also had a professional connection with the property rights issues the society addresses. As the chairman and a long-time member of the Senate Judiciary Committee, which oversees matters of intellectual property law, I appreciate the dedication the society has shown toward maintaining the integrity and efficiency of copyright laws. In the past 90 years, ASCAP has witnessed the transitions from records to 8 tracks to cassettes to compact discs and now to mp3s. It has been through the many trends of music, from big band and swing in 1920s and 1930s, to the wide range of musical styles available today. ASCAP has stood the test of time. I hope my colleagues will join me in recognizing its great contributions to the world of intellectual property law and wishing ASCAP and its members well in the years to come.

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent that my reading of this procedural matter will not be counted against my 1 minute on the amendment.

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent that the Senate immediately proceed to the consideration of H.R. 5107, the DNA bill, which is at the desk; further, that the bill be read a third time and passed and the motion to reconsider be laid upon the table; provided further, that when the Senate receives from the House a correcting enrollment resolution relating to H.R. 5107, the Senate proceed to its consideration and the resolution be agreed to and the motion to reconsider be laid upon the table. Finally, I ask unanimous consent that if the House does not adopt the correcting enrollment resolution by the end of this Congress, then the Senate action on H.R. 5107 be vitiated.

Mr. HATCH. Mr. President, this is the very important DNA bill which will help resolve the difficulties with over 400,000 rape kits in this country, some of which are 20 years old or older. Mr. President, I would just like to compliment Debbie Smith and Kirk Bloodsworth, who are two of the initiating people who have helped bring this about, but also all the people who worked so hard: Senator Leahy, Senator Biden, Senator Specter, Senator Feinstein, Senator DeWine and, of course on the House side, Chairman Sensenbrenner and Representative Bill Delahunt for their dogged determination, and to Senators Kyl, Sessions, and Cornyn who did a really great job on this bill; also staff on both sides, in both Houses. With that, I yield the floor.

Mr. HATCH. Before we agree to send this bill to the House, there are a number of concerns raised with respect to the capital-counsel section of Title IV that I would like to address with my colleagues. I know that this title has been of particular concern to my friend from Texas, Senator Cornyn.

Mr. HATCH. That is my belief. And let me first say that I appreciate the concerns of the Senator from Texas as well as those of Senators Kyl and Sessions, each of whom have worked very hard on this important issue. You bring to the debate a wealth of experience in this area, having served as Attorney General of your home State of Texas and as a Judge, and you have worked tirelessly on this, and I thank you for it. The recent modifications to the bill are a great improvement. The bill is the result of the hard work and dedication of many on both sides of the aisle. Most importantly, we have significantly reworked this bill so as to address the legitimate concerns you, Senators Kyl and Sessions as well as others have raised. Specifically, we made some changes to the capital representation section of the Innocence Protection Act. We worked with the House to add language similar to language in the amendment that you offered in the Judiciary Committee language that would require that a large majority of the funding in this area to go to the trial level, rather than to the appellate or habeas litigation. This shift in funding allocation is a further safeguard against your concerns that funds might go to particular advocacy groups because they typically become involved in these cases at the appellate level.

Mr. HATCH. Yes. Section 421(d)(1)(C) was added specifically to ensure that Texas, or any other State with a similarly structured system, would qualify as an ``effective system'' under the statute. This provision has been referred to as the ``Texas carve-out'' throughout debate over this bill. It is appropriate in light of the changes Texas enacted in order to improve its capital-representation system just 3 years ago.

Mr. HATCH. That is absolutely my understanding.

Mr. HATCH. Absolutely. In fact, it is my understanding that at least half a dozen other states also will automatically pre-qualify for funding under this proviso.

Mr. HATCH. I would say that the ``carve-out'' is a compromise that is consistent with past Federal assistance to the States' criminal justice systems, and it sets appropriate limits on the level of Federal involvement in the administration of the death penalty at the state level.

Mr. HATCH. I would be pleased to do so. In choosing the term ``compelling,'' we relied on previous interpretation of that term in cases such as United States v. Walser, a 1993 case out of the Eleventh Circuit. That court analyzed a previous jury's decision--and whether it disadvantaged the defendant--under a standard of ``compelling prejudice.'' The court there made clear that it could not find ``compelling prejudice'' if ``under all the circumstances of [the] particular case it is within the capacity of jurors'' to reach the proper result--in the case of this bill, to find that the defendant committed the crime. If, in light of the DNA test, it would not be within the capacity of jurors to conclude that the defendant is guilty, a new trial must be granted under 3600(g). But if they could possibly find guilty, no new trial is allowed. As the Eleventh Circuit explained, under the ``compelling'' standard, if a decision is ``within the jury's capacity''--if it is reasonably possible--then ``though the task be difficult [for the hypothetical jury], there is no compelling prejudice''--or in our case, no compelling evidence requiring a new trial. As the Walser case also explains, you look to the trial transcript to decide what constitutes ``compelling'' evidence. Obviously, it is the defendant's burden to produce this evidence by other means if there is no trial transcript. If the defendant pleaded guilty, and received the inevitable benefits that come with a plea agreement, he cannot later turn the lack of a record against the State. It remains the defendant's burden of both persuasion and production to show that it would not have been possible for the jury to have concluded that he is guilty. This is again implicit in the adoption of the term of art ``compelling''--as Walser elaborates, under the ``compelling'' standard, ``absent evidence to the contrary, we presume that the jury'' could properly reach the result that it did. The other case to which I believe that you referred is the Seventh Circuit's 1979 decision in NLRB v. Austin Development Center, which makes clear that previously available evidence is not ``compelling'' evidence. The relevant passage from that case for our purposes was that only ``[t]he discovery of new evidence is a compelling circumstance justifying relitigation. The proffer of evidence not presented earlier, however, will not justify relitigation where it is not shown that the evidence was unavailable at the time of the prior proceeding.'' In other words, for our purposes, if the DNA evidence that a prisoner relies on is something that would have been available to him earlier, it does not qualify as ``compelling'' evidence justifying a new trial. If he failed to seek a test when he could have, he cannot later use that test result to argue for a new trial, once witnesses have died or become unavailable or had their memories fade, and other evidence has deteriorated and disappeared. To allow a new trial under these circumstances would be fundamentally unfair to society and its interest in the finality of criminal judgments. As some of my colleagues have noted, Federal Rule of Criminal Procedure specifically limits its liberal new-trial rule to new evidence discovered within 3 years. Implicit in that limit is the judgment that the same evidence cannot carry the same weight in a new trial motion if it is brought at a later time. By adopting the ``compelling'' standard in this bill, we make that same judgement, and we protect these same societal interests. I hope that this conforms to your previous understanding of this provision and clarifies matters for the record, Senator. We have chosen a tough standard here--in fact, I believe tougher than all those that we have discussed previously. This is not a standard that will grant new trials to people who probably did it--and then allow them to walk free when prosecutors are unable to try them after the passage of time. I hope that you can have confidence in that, Senator.

Mr. HATCH. That is correct.

Mr. HATCH. That is correct. The new limitation that you noted--the new subsection 14132(d)(2)(A)(ii) corresponds to the limited ``unindicted arrestee'' category in the new (a)(1)(C). It does not apply to DNA analyses uploaded under other ``applicable legal authorities.'' Our intent was to provide States with maximum flexibility in exchanging DNA profile information through NDIS. The only exception that we made in this bill was for arrestees, who had DNA samples taken from them involuntarily, and who, because of those circumstances, we give the right to have those samples withdrawn from NDIS.

Mr. HATCH. I agree with the Senator. I, too, am pleased that, with the exception of samples collected from arrestees who have charges dismissed or are acquitted, States and local governments can now upload and compare analyses collected under applicable legal authorities on the national database without running afoul of arbitrary expungement requirements.

Mr. HATCH. Yes. Anyone with knowledge of capital cases--not just someone who has litigated capital cases--can now serve on the entity. Most importantly, this includes members of the bench. It could also include law professors with knowledge of capital cases, or, as you mentioned, even advocates for crime victims--if they have a demonstrated familiarity with the death penalty. The interests of victims too often are left out in our justice system--I am pleased to see that we have now changed this bill to ensure that someone who has experience in guiding crime victims through a capital trial would be eligible to sit at the table of this important new capital-counsel entity. I think that such an entity certainly could benefit from diverse perspectives on the criminal-justice system.