Orrin Hatch

Mr. HATCH

Mr. HATCH. Mr. President, today I introduce S. Res. 314 which expresses the sense of the Senate regarding the authority of the Secretary of Health and Human Services to make adjustments in payments made to skilled nursing facilities under the Medicare program. As my colleagues are aware, pursuant to the Balanced Budget Act of 1997, Congress directed the Health Care Financing Administration to create a new prospective payment system, or PPS, for Medicare-certified skilled nursing facilities, or SNFs, as they are called. Skilled nursing facilities are now in the process of moving from the historical cost-based reimbursement system to the new prospective payment system. This new system combines costs associated with nursing services, capital investment, and other medical services bundled together and then adjusted to reflect the needs of the patients. Congress rightly sought this new system as a way of getting skilled nursing facility operators to manage both the quality and costs of health care for seniors qualified under Medicare. As this system has been developed quickly since the enactment of the BBA, there has been a problem identified with adjustments for services considered ``non-therapy'' services. These include respiratory therapy, pharmaceutical products, parenteral and enteral products, laboratory and x-ray services, and other covered medical supplies. While I believe that HCFA has done a remarkable job in getting this system in place over the past year, I am concerned that the adjustment in payment for these specific services has not yet been developed. This is especially true for a patient who is very ill--those with multiple disease conditions treated in a SNF. There is simply not adequate provisions for ensuring that the prospective payment made each day appropriately reflects the higher medical costs that these patients may need. As a result of this new system, many nursing homes cannot afford to treat certain types of patients. That was never our intent. HCFA officials have acknowledged that they needed more data to fix the problem. They commissioned a study last year to assist them to make corrections. However, the data was not yet available in time for the first year to implement some corrections. While I am certain that HCFA will correct this system, I want to ensure that services to our most vulnerable seniors in nursing homes getting complex medical services will continue to get their care. I do not want bureaucratic delays in any way to impede their care. The PPS theory of paying according to average does not work when the rates are not based on solid data and the case-mix adjustment for non- therapy ancillaries is based on very little data. This is obviously not what Congress intended with the BBA. In March, the Medicare Payment Assessment Commission advised the Congress that ``the RUG-III system may not adequately differentiate among Medicare SNF patients . . . this may lead to significant overpayment and under payment for patients within a RUG group.'' In September, the Appropriations Committee report for the Department of Health and Human Services included the following: The Committee has heard concerns regarding the equity of the new Medicare SNF prospective payment system as it relates to nontherapy ancillaries. The demonstration upon which the new system was based did not include this class of items and services. Due to the lack of sufficient data to make these changes, the new system may provide a windfall for some providers while seriously impairing the ability of others to treat patients requiring more intensive care. Therefore, the Committee urges HCFA to reexamine this policy and make budget-neutral changes this year to assure continued access to services for high cost patients pending the gathering of sufficient data on which to base permanent reforms. Mr. President, unless relief is provided and this anomaly in the payment system is corrected, a major impediment will remain for certain patients with high non-therapy ancillary costs to receive Medicare services in nursing facilities. An immediate transitional modification is needed before irreparable harm is done to quality care and access for high costs patients. Some facilities have already begun PPS coverage although HCFA apparently will not begin making actual PPS payments until December, or later. However, on January 1 about 60 percent of the SNFs will begin coverage under the PPS. We must, therefore, develop longer term solutions for these crucial services, but first we must do no harm in the interim. Providers can quickly change operations to maximize light care and minimize heavy care. Specialty staff, such as respiratory therapists, will be let go; special physical plant and equipment, such as air flow equipment for ``clean room'' level infection control will be dismantled; and hospital referral arrangements will be changed. Accordingly, I am submitting today S. Res. 314 expressing the sense of the Senate that the Secretary, pursuant to section 1888(e)(4)(G)(i), has the authority to provide for an appropriate adjustment to account for case mix which reflects a patient's medical needs requiring non- therapy ancillary services. HCFA has acknowledged the shortcomings of the current RUG-III system. The RUG-III demonstration project had treated these costs as a pass- through because the system did not have the data available to include such costs. My resolution will clarify and reaffirm Congressional intent that the Secretary has the administrative flexibility to make appropriate adjustments to the case-mix of SNFs to reflect the costs of these services. One approach, which accommodates HCFA's operational impediment of Year 2000 computer software problems, would be to make payment adjustments to reflect the relative resource utilization of non-therapy ancillaries by different patient types based on a SNF's cost report for the first year under the PPS. The resolution calls upon the Secretary to gather sufficient data on the provisions of non-therapy ancillaries in order to develop the appropriate adjustments. And, it also urges the Secretary to periodically report to Congress on the development of the appropriate adjustment. Mr. President, this issue is one of quality and access for America's seniors to community based skilled care. And, while it was my hope that the Senate could pass this resolution today, I trust my remarks and the language of the resolution will serve to further define the complex issues associated with this important matter. I am encouraged that the distinguished Chairman of the Finance Committee, Senator Roth, and the distinguished Minority Member, Senator Moynihan, have indicated their interest, and look forward to working with them early next year to address this issue in the Finance Committee.

Mr. HATCH

Mr. HATCH. Mr. President, this Congress has taken steps to significantly reduce the Federal judicial vacancy rate to its lowest level in almost a decade. As Chairman of the Judiciary Committee, I am proud to boast about some of the successes that have been achieved this Congress by the Committee and Republican Senate. I also feel compelled to set the record straight that the Committee and Republican Senate this Congress have been dedicated and productive. One could speculate that if the Democrats controlled the Senate, more Clinton nominees would have been confirmed. But then again, maybe not. This Congress, the Committee held hearings for 111 out of 127 judicial nominees. Of the 16 nominees that did not have hearings, 3 withdrew from consideration. The Committee held 23 judicial, and an additional 8 non-judicial, nominations hearings for a total of 31 nominations hearings. In all, this Congress the Republican Senate confirmed 101 judicial nominees, which is well above the average confirmed over the last five Congresses, which is 96. Indeed, notwithstanding the rhetoric we often heard from the other side of the aisle, according to the Alliance for Justice, a liberal judicial watch group, almost 50% of the judges confirmed by the Republican Senate have been women and/or members of a minority group. The Republican Senate, by working in a fair and orderly manner, also reduced the vacancy rate of the Federal Judiciary to 5.9%--the lowest vacancy rate since the Judiciary was expanded in 1990. While considering this rate, keep in mind two things: first, that the Clinton Administration is on record as having stated that a vacancy rate just over 7% is virtual full-employment of the judiciary, and second, that the Clinton Administration did not get around to nominating anyone for 29 of the 50 vacant judgeships. To put it another way, this Administration failed to nominate anyone for almost 60% of the current judicial vacancies. Thus, the Republican Senate would have been precluded from filling every single judicial vacancy because it cannot confirm judges whose nominations it has not received. The accusation that the Republican Senate delays consideration of certain nominees is simply a ploy to divert attention away from the fact that qualified, non-controversial nominees, which constitutes the overwhelming majority of nominees, were confirmed promptly, usually by unanimous consent. Indeed, one need go no further than the high number of Clinton Administration nominees that were confirmed by this year's Republican Senate to determine whether their motives were anything but altruistic. Yes, there were some controversial nominees that did not move, and in fact, some of these nominees were forced to withdraw. But the confirmation process is not a numbers game, and I will not compromise the Senate's advice and consent function simply because the White House has sent us nominees that are either not qualified or controversial. There are a range of factors which make a nominee controversial or difficult to confirm, such as lack of experience or questionable information contained in materials not in the public domain or in their past records that may be at variance with the proper role of judges in society. But I assure you that gender, ethnicity, and race are not included in the determination. For me, the touchstones in evaluating the qualifications of a nominee are whether they are committed to upholding the rule of law and properly understand the limitations of the judicial role. The Senate has an obligation to the American people to review thoroughly the records of the nominees it receives to ensure that they are capable and qualified to serve as Federal judges and will not spend a lifetime career rendering politically motivated decisions. I would not, in good conscience, vote for the confirmation of any nominee whom I believed would abdicate his or her duty to interpret and enforce, and instead make, the laws of this Nation. As Committee Chairman, I take my role in the confirmation of judges very seriously, and would not allow irrelevant criteria to be analyzed in determining a nominee's fitness to sit on the Federal bench, practically speaking, for what amounts to life tenure. As a Senator, I take my role of advice and consent equally as serious and would not tolerate the disingenuous consideration of any nominee. The demagogues and naysayers can continue to impugn the purported secret motives of the Republicans and continue to malign those who exercise their Constitutional duty to thoroughly evaluate and review the complete record and background of each nominee before casting a vote in favor or in opposition thereto. And the Republican Senate will continue to plow ahead in the next Congress honorably and fairly discharging its Constitutional duties without wavering. However, I could not leave this Congress without congratulating my fellow Republican Senators, Senator Lott in particular, for all of their hard work and accomplishments in what, at times, has been a contentious atmosphere. Senator Lott has done his best and has acted in a fair and principled manner in processing these nominees. He is to be commended.

Mr. HATCH

Mr. HATCH. I concur with my colleagues. This is a very important tax credit for alternative fuels. It is an issue of fairness, not one of corporate welfare. Earlier this year I, along with 18 of my colleagues, introduced a bill that would extend for eight months the placed-in-service date for coal and biomass facilities. The need still exists to extend this date and I am very disappointed that this was not included.

Mr. HATCH. Mr. President, I suppose that it is appropriate that we are passing this bill just a week before Halloween. It seems as though we have spent the better part of five days trying to unmask its provisions. And, some of the sections have been like ghosts--first you see them, now you don't. I confess that I share the frustration voiced by many of my colleagues yesterday from both sides of the aisle about this extremely unorthodox process. I suppose it is somewhat reassuring that Senators on both sides of the aisle are similarly put off by the process because perhaps then we will not inflict it on ourselves or the American people next year. Let me start with the fact that, at least technically, it is out of order to authorize on an appropriations bill. We have from time to time bent that rule--sometimes quite liberally. But, today, we not only bent it, we smashed it to smithereens. I admit to having tried to amend appropriations bills with authorizations during my tenure in the Senate, but I am quickly coming around to the notion that we must get back to a stricter adherence to that particular rule of the Senate. One of the reasons for this rule, in addition to being able to control the appropriations process, is to ensure that the authorizing committees are not circumvented. The authorizing committees of the Senate have developed expertise on the various policy issues we must consider and act upon, and I believe that we do not fully carry out our duty to citizens and taxpayers when we fail to vet thoroughly these proposed changes in law. I am not talking only about the Judiciary Committee, although I do feel strongly that we could have provided constructive input. The authorizing committees play an important role in policy development. And, I think it is essential that we assert right here and now that national policy is not just about money. While the appropriations aspects of Congress' job is certainly of utmost importance, the authorizing process shapes the programs and establishes the rules for the expenditure of federal funds. One function is as important as the other. I do hope that this major bypass of the authorizing committees will not become habit-forming. Second, we should all be concerned about the perception that this backwards procedure--one in which we are considering conference reports on bills that have not even passed the Senate yet--will set a precedent for the future. Mr. President, I hope my colleagues on both sides of the aisle will join me in a sweeping denunciation of this as anything other than a one-time event. We cannot consider this omnibus, catch-all, 11th hour approach to be a model for how to extract ourselves from the dangerous prospect of an imminent government shutdown. And, by the term``we,'' I also include the President of the United States. I would like to send a message to President Clinton right now. Don't try playing this game of legislative chicken again. I may resolve much differently. Third, while I appreciate the effort of Senators Lott and Stevens and others to ensure that this bill does not make permanent changes in the budget rules or lift the budget caps we so painstakingly negotiated in the Balanced Budget Act, the bill before us takes the unheard of step of designating tax breaks as ``emergencies.'' While I strongly support the idea of tax relief--indeed, I have strongly supported each one of the items in this tax package for farmers--I am not so sure that we should be starting down the steep and slippery slope of using the emergency designation in this way. I hope that we will all look at this as one-of-a-kind occurrence and not as a new procedural loophole that we continue to use in the future. Fourth, Mr. President, I am also disappointed by the fact that we are using a portion of the surplus to pay for additional spending. I supported the pledge of saving the surplus for Social Security and thought that we should move toward that goal. This bill, however, breaks that promise. Last January, one of the President's most memorable lines from his State of the Union speech was ``Save Social Security first.'' In reality, however, he has supported, practically insisted, on using that same surplus for more government spending. I applaud Senator Lott and Speaker Gingrich for keeping this encroachment on the surplus and Social Security to a minimum. I hope that during the next Congress, we can resurrect that bipartisan spirit of fiscal integrity and responsibility we shared to get the budget balanced in order to keep the budget balanced. If we continue to feed the voracious appetite of big government at the trough of the so-called surplus, we will not have that surplus for long. If there is one thing that we should all be united in, it is maintaining a balanced budget. This is perhaps the most important thing that any Congress can do. It is critical for the future growth of the U.S. economy, increases in the standard of living for our workers, and, indeed, the very future of the country. Mr. President, the unorthodox process is certainly one issue, but it is not the only or even the principal issue. There are substantive problems with this bill as well. Let me begin with a provision that is under the jurisdiction of the Judiciary Committee. I must speak out against inclusion of Title One of the euphemistically entitled ``Citizens Protection Act.'' This ill- advised provision passed the House as an amendment to the House Commerce, State, Justice Appropriations bill but it never passed the Senate. Indeed, it has been opposed by a bipartisan majority of the Senate Judiciary Committee. Under the guise of setting ethical standards for federal prosecutors and other attorneys for the government, it will severely hamper the ability of the Department of Justice to enforce federal law and cede authority to regulate the practice of law by federal prosecutors in our federal courts to more than fifty state bar associations. Indeed, this provision alone caused me to consider voting against this conference report. The sponsor of this measure is Representative Joe McDade, a man who, by all accounts, was wrongly prosecuted by zealous federal prosecutors and who has been vindicated. I have great respect for Representative McDade and sympathy for the objectives he seeks to protect. Many in Congress and citizens around the country have been, at one time or another, the subject of unfounded ethical or legal charges. No one wants more than I to ensure that all federal prosecutors are held to the highest ethical standards. That is why the Judiciary Committee staff met with Congressman McDade and his staff. That is why we proposed a more narrow, workable version of his ethics amendment. That is why I proposed that we establish a Commission to investigate alleged cases of wrongdoing by federal prosecutors and to make recommendations to Congress. Unfortunately, the House Leadership and others did not accept my proposal. Instead, I fear that, in a understandable desire to redeem those who have been wronged by zealous prosecutors, we have included a provision which is far too broad. In its most relevant part, the so-called McDade provision states that an ``attorney for the government shall be subject to State laws and rules . . . governing attorneys in each state where such attorney engages in that attorney's duties, to the same extent and in the same manner as other attorneys in that state.'' This may sound innocuous, until one realizes why state laws and rules governing the conduct of attorneys exist in the first place--to protect the integrity of the civil and criminal legal systems in the state and govern the practice of law in the courts of that state. It is this very purpose which makes inappropriate the blanket application to federal attorneys in federal court of all state bar rules. The federal government has a responsibility and the legitimate lead role in the investigation and prosecution of complex multistate terrorism, drug, fraud or organized crime conspiracies, or in rooting out and punishing fraud against federally funded programs such as Medicare, Medicaid, and Social Security. It is in these very cases that the McDade provision will have its most pernicious effect. Federal attorneys investigating and prosecuting these cases, which frequently encompass three, four, or five states, will be subject to the differing state and local rules of each of those states, plus the District of Columbia, if they are based here. Their decisions will be subject to review by the bar and ethics review boards in each of these states at the whim of defense counsel, even if the federal attorney is not licensed in that state. Practices concerning contact with unrepresented persons or the conduct of matters before a grand jury, perfectly legal and acceptable in federal courts, will be subject to state bar review and, as a result, could put an end to some undercover, federal investigations. And the very integrity and success of sensitive investigations could be compromised by the release of information during the course of these reviews. This provision is also an open invitation to clever defense attorneys to stymie federal criminal or civil investigations by bringing frivolous state bar claims. Mr. President, the McDade provision is opposed by Attorney General Reno and by the Administration. It is opposed by a bipartisan group of six former Attorneys General of the United States from the Nixon, Carter, Reagan and Bush administrations. It is opposed by the Director of the FBI, the Administrator of the Drug Enforcement Administration, and the Director of the Office of National Drug Control Policy. It is opposed by law enforcement organizations such as the Fraternal Order of Police, the National Sheriffs Association, the National District Attorneys Association and the Federal Criminal Investigators Association. The National Victims Center opposes it on behalf of the victims of crime. And this provision is vigorously opposed by an overwhelming bipartisan majority of the Senate Judiciary Committee, the committee with jurisdiction over this matter. The Committee's Ranking Member Senator Leahy has opposed this provision. Former Committee Chairmen Senators Kennedy and Thurmond, and Committee members Senators Sessions, Kohl, DeWine, Durbin, Abraham, Feingold, Thompson, and Feinstein have also written in opposition. I would note, however, that in response to our concerns, the Leadership has inserted a provision which will delay the implementation of this provision for six months. At the very least, this will give the Department of Justice and others the opportunity to educate the Congress as to the serious effect this blanket provision will have on law enforcement. It is my hope and expectation that, during the next six months, we will be able to develop a more workable and effective solution. In addition, the so-called 100,000 Teachers program so trumpeted by President Clinton will do virtually nothing for Utah. As if the concept of this teacher hiring program would be any more effective than the 100,000 cops program, we are appropriating $1.2 billion at the insistence of President Clinton and under threat of government shutdown. Well, Mr. President, Utah is continually disadvantaged by the use of the Title I funding formula, which is how this money will be predominantly allocated among the states. Under this formula, we are year after year punished for our demographics. We will be lucky to eke enough out of this grant to hire a handful of teachers per district. And, the irony is that Utah ranks among those states with the highest average class sizes. This program claims reduction of class size to be its raison d'etre. I think not. Furthermore, Mr. President, the President had an opportunity to reward states that were taxing themselves heavily for education and that were addressing the needs of poorer and rural school districts with state funds. Did he support an appropriation for the effort and equity component of the Title I formula? No, he did not. And, what happened to ed-flex, one of the more innovative, albeit common sense, educational reforms we have seen in recent years? We are told the President would have vetoed the bill with the ed-flex provisions in it. I find myself resentful that I am in the position of being grateful for the limited flexibility that has been incorporated into the Teacher program. I do not mean to cast any aspersions on my colleagues, who I know worked very hard to keep some local control in this program and who support educational flexibility as much as I do. But, I ask President Clinton: What is your problem with giving states and local school districts some authority to make decisions about resource allocation? Are you afraid that the state or the locally elected boards of education may have a different priority than you do? I am most annoyed at this lost opportunity to give states and local school districts some unrestricted federal assistance. There is no question in my mind that Utah could stretch the impact of federal help much further if given the freedom to make these determinations and to pool resources more effectively. In view of all of this, some have suggested that I vote against this bill. I will say that on the basis of a few of these provisions, I was tempted to do so. But, there are also some very worthy provisions in the bill which mitigate its poorer aspects. For example, I am pleased that the tax extenders package is included in this bill. Despite my dislike for the idea of inserting a tax bill in an appropriations bill, I am glad we are getting this done. These tax provisions should not be allowed to expire; in fact, we ought to be making them permanent so we would not have to face this annual expiration crisis. I am particularly pleased that the bill accelerates the deduction for health insurance premiums for self-employed people. It is about time we gave entrepreneurs a break on this. I support the funding of the empowerment zones. This program is a powerful tool for revitalizing our urban areas; and I appreciate the fact that much of it is private sector driven. Of course, the Interior Department appropriation, which is contained in the Omnibus bill, is critical to Utah. It contains funds for Washington County's desert tortoise habitat conservation program; the Bonneville Shoreline Trail; program development and facility construction at the Grand Staircase-Escalante National Monument; and a prohibition on funds to study draining Lake Powell or decommissioning the Glen Canyon dam. While I am critical of the Administration's educational priorities, I support the additional funds for IDEA and Impact Aid. Utah, because of our heavy concentration of federal installations, will benefit from this sizable boost in Impact Aid. I am sincerely grateful to my colleagues on the Appropriations Committee and in the leadership for their attention to the pressing transportation needs in Utah as well as to the planning that is underway for security at the 2002 Winter Olympic Games. Staging this event is going to require a state-of-the-art transportation system, including intermodel centers, light rail, an adequate fleet of buses, and intelligent transportation systems. This appropriation will give Utah the ability to move ahead in these areas. Additonally, I am extremely worried about our defense. We have alarming reports that entire air squadrons are grounded for lack of spare parts to keep planes in the air. We are told that junior officers and experienced non-commissioned officers are packing up and leaving the service, creating manpower and staffing problems in every branch of the military. Military readiness backs up diplomacy. The latter cannot succeed without the former. We simply must stop using the defense budget like a bank we can go to for spending offsets when we want them. We are risking our nation's strength and ability to influence outcomes throughout the world. And, what is more, if we do not properly maintain equipment, if we do not invest in new technologies, if we do not provide adequate housing and medical care, we do not honor our men and women in uniform. This bill begins the process of recognizing the importance of reinvesting in defense. I support the supplemental spending in this bill for defense, particularly the emphasis on readiness and personnel. Some defense funds are also directed toward drug interdiction efforts. This is one of several positive actions taken in this bill to fight the war on drugs. Drugs are poisoning our society, particularly our children. Drugs contribute to a variety of other crimes, including murders and robberies. We must not give up trying to eradicate this cancer from our communities, and I applaud the addition of these anti- drug measures to this bill. I remember when, more than a year ago, Speaker Gingrich, Congressman Hastert, and I met to discuss how we might force this Administration to focus on the worsening drug problem. We decided that we needed to undertake a comprehensive, bicameral effort. And so we did. We met with the Administration, held numerous hearings, and worked in a cooperative manner, extending our hands across the Capitol in a united effort to do what's best for our children. I am pleased to say that our efforts have led to some success. A number of these important provisions were produced and considered by the Senate Judiciary Committee. I want to express my pleasure with the decision to include my proposal to reauthorize the Office of National Drug Control Policy. As well, I am pleased that we were able to include the Drug Demand Reduction Act, a measure sponsored by Congressman Portman in the House. I was pleased to work with Congressman Portman on getting this measure considered and put in a form which would pass the Senate. In fact, I recently introduced the Senate companion measure. For all of those involved in the effort to include this important, comprehensive anti-drug package in the bill--Speaker Gingrich; Senators Coverdell, Grassley, and DeWine; and Congressmen Hastert, McCollum, Portman and others--I want to express my congratulations and thanks. Mr. President, let me conclude by saying that although there are some very ligitimate things to complain about regarding the bill--and process is one of them--we must recognize as well as the bill is a compromise. And, a compromise by definition means that neither side gets everything it wants. If I were king, would I have put forward this bill? Certainly not. But, I am not king, and neither is Senator Lott nor Senator Stevens. Neither is President Clinton nor Representative Gephardt. The stakes in this negotiation were particularly high. We were in a situation in which we were faced with an imminent shutdown of the federal government and all of the confusion, disruption, and dislocation that entails. So, when asked by pundits why the Republicans did not hold firm on a key issue like redirecting $1.2 billion in educational assistance to states and local schools with fewer strings attached, the answer is not difficult. Because in our system of checks and balances, the President has the veto pen. Had we engaged in a war of wills, we could have held out for a perfect version of this educational component--a more perfect version of the entire appropriation--but the result would not necessarily be good for the country. Maybe some day, the American people will reward Republicans for being better statesmen than they are politicians. Instead we negotiated a bill that is, indeed, a compromise. There are beneficial elements to it. It is not all bad. I would like to commend the Majority Leader, Senator Lott, and Speaker Gingrich for their efforts on this bill. Faced with a situation in which we could not act on the regular appropriations bills individually, as we would all have preferred, he steered us through this negotiation in the best manner he could. He deserves great credit, and he deserves our support. How we ended up in this situation has already been addressed by several members on this side of aisle. Suffice it to say that it should not be necessary to file cloture petitions on appropriations bill; it should not be necessary to debate nongermane amendments ad infinitem. But, regardless of how we ended up here, we have made the best of it, and, I believe, have finally delivered a reasonable appropriations package. It is always easier to criticize a compromise than it is to carve one out of disparate views and agendas. I have had some experience in this. I have often been criticized for a result that was not viewed as perfect or politically advantageous, even if it was fair or worthwhile. This omnibus appropriation is not perfect. I dare say the Majority Leader would not say it is perfect. But, it is fair, and it is worthwhile. It is worthwhile because of the components I believe merit support, some of which I have advocated for years. It is also worthwhile because it will relieve the American taxpayers of the dread and uncertainty that the government will shutdown and of their anger and frustration that their government still doesn't get it. It is worthwhile, I believe, because it is time to put the country first--ahead of the ``wag the dog'' diversionary strategy and ahead of seeking partisan advantage on election day. Therefore, I will vote for this omnibus appropriations bill. washington state's use of the word ``olympic''

Mr. HATCH

Mr. HATCH. Mr. President, today the Senate will confirm the nomination of Edward J. Damich to be a judge on the Court of Federal Claims. Mr. Damich has been the Chief Intellectual Property Counsel to the Judiciary Committee since 1995. He has already had a distinguished career and is highly qualified to fill this challenging position. He received an A.B. degree from St. Stephen's College in 1970, a J.D. degree from the School of Law of Catholic University in 1976, and LL.M. and J.S.D. degrees from Columbia University School of Law. Upon his graduation from law school, he joined the faculty of the Delaware Law School of Widener University as a Professor of Law where he remained until 1984. From 1984-95, he was a Professor of Law at the George Mason University School of Law. During 1992-1993, Mr. Damich also served as a Commissioner of the Copyright Royalty Tribunal. Mr. Damich also has numerous accomplishments outside his professional career. He was named Outstanding Faculty Member in 1980 and 1984, and is listed in Who's Who in American Law. He has served as President of the National Federation of Croatian Americans and as a Board Member of the Washington Area Lawyers for the Arts. He is also widely published in both the acadmic and professional forums. His hard work and intellect has made him a true asset to the Committee, and his presence will be missed. I am confident that he will make a terrific judge, and I wish him all the luck in this very important stage of his career.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce the ``Drug Demand Reduction Act,'' a bill that improves demand reduction efforts by focusing on the anti-drug media campaign, drug-free jails, and drug- free schools. The bill also contains several congressional resolutions aimed at encouraging community involvement, rejecting efforts to legalize illegal drugs, and streamlining prevention and treatment programs. This legislation is supported by General Barry McCaffrey, Director of the Office of National Drug Control Policy. The original companion bill was introduced in the House of Representatives by Congressman Portman and Congressman Barrett on September 16, 1998, and passed with overwhelming bipartisan support, 396-9. I commend them for their leadership and thank them for their efforts. As many of you know, I worked hand in hand with my colleagues in the House on this issue, I held hearings in the Senate Committee on the Judiciary concerning these issues, and more recently, I worked with the Leadership to include this bill into the legislative package of anti- drug bills that is being incorporated into the Omnibus Appropriations bill for Fiscal 1999. This bill represents a substantial step toward reducing the rates of drug abuse in our country. According to the respected Monitoring the Future from 1991 to 1997, the lifetime use of marijuana--the gateway to harder drugs--has increased among school-age youth. The lifetime use of marijuana by 8th graders--that is those 8th graders who have ever used marijuana-- increased by 122% from 1991 to 1997. For 10th graders, marijuana use increased by 81% and for 12th graders, 35%. Cocaine use among our youth has also seen staggering increases. From 1991 to 1997, the lifetime use of cocaine increased by 91% for 8th graders. The lifetime use of cocaine by 10th graders increased by 73% during the same time period. The number of 8th graders who have used cocaine within the past year increased by 154% from 1991 to 1997. Heroin use has also exploded since 1991. The reported lifetime use of heroin for both 8th and 10th graders increased by 75%. For 12th graders, heroin use increased by 133%. The number of 8th graders who have used heroin within the past year has increased by 86% from 1991 to 1997. For 10th and 12th graders, heroin use increased by 180% and 120%, respectively. These figures are staggering when you consider that each percentage point represents thousands of teens who are much more likely to become bigger problems for society as they become adults. The drug abuse situation in our country is an issue about which I care deeply. In June of this year, the Judiciary Committee held a hearing on the growing national crisis of drug abuse among our children. I think it is clear from all the available information and from the testimony heard at the hearing that youth drug abuse is not stable, but is instead rising sharply. Several of the witnesses who testified described how accessible drugs were to our young people. For example, Chris who works as an undercover investigator in high schools in Dayton, Ohio, described to the Committee how easy it was to get drugs in today's high schools. ``Within the first investigation, I was approached within three weeks, by someone offering to sell to me. The second investigation, I was approached in a week-and-a-half by someone again wanting to sell to me. In high schools, you don't have to do a lot of seeking, you know. . . . Pretty much, they are going to come to you.'' What is the reason behind this surge in teen drug consumption? I believe several things. First, there has been a decline in anti-drug messages from elected leaders--like President Clinton and similar messages in homes, schools, and--until recently with the airing of anti-drug messages developed for the Youth Media Campaign--the media. Second, the debate over the legalization of marijuana and the glorification of drugs in popular culture has caused confusion in our young people. Third, disapproval of drugs and perception of risk has declined among young people. The percent of 8th, 10th and 12th graders who ``disapproved'' or ``strongly disapproved'' of use of various drugs declined steadily from 1991 to 1995. In 1992, 92% of 8th graders, 90% of 10th graders, and 89% of 12th graders disapproved of people who smoked marijuana regularly. By 1996, however, those figures had dropped significantly. We must change tactics and find a way to do something to stop this epidemic from continuing and destroying the future of our children. This bill, which I expect will be enacted as part of the Omnibus Appropriation bill, will begin to address these problems and offer incentives to help schools, and communities to reinforce the message that drugs are dangerous. I urge all of my colleagues to support this bill. I ask consent that the bill be printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, I rise to speak on a patient care issue of enormous importance: regulations being promulgated by the Secretary of Health and Human Services (HHS) with respect to organ transplantation. I have long championed the need for our country to bring the innovations of medical science to the forefront of patient treatment, be it through pharmaceutical development, gene mapping, or artificial organ development. Nowhere has this been more necessary than in the realm of organ transplantation. Over 14 years ago, with the passage of the National Organ Transplant Act (NOTA), Congress intervened to advance medical science at a time when our health care system was not keeping pace with the tremendous advances medicine had to offer. As a result, we examined the role of the private sector and the Federal government in organ transplantation to formulate an equitable policy for individuals throughout this country to have access to organ transplantation when appropriate and necessary. We needed a better system than that which existed at the time, and that is what NOTA established. As the author of the National Organ Transplant Act (NOTA) in 1984, which was cosponsored by our colleagues Sentors Nickles, Thurmond, Grassley and Roth, I am proud of our accomplishment, and I continue to maintain a very keen interest in our country establishing and operating a viable, effective organ transplant network. There is no question that passage of NOTA has allowed us to save thousands of lives. The medical community has been transplanting over 4,000 livers each year. We have seen valuable transplant technology and services spread from only a handful of research institutions to hospitals in rural America. In my home State of Utah, LDS Hospital has been able to increase its liver transplant volume over 15-fold since its inception only 13 years ago. We have aspired to promote a system which allows medical science to reach the people it was meant to serve, and I believe we are in large part achieving that goal, in great measure due to enactment of NOTA. Today, I stand before the the Senate to urge that we not precipitously reverse that work by allowing implementation of a new system which could threaten to undermine many of the successful organ transplant centers who are doing so much good in this Nation. Utah's own successful transplant center comes to mind, although centers in several other States such as Alabama, Louisiana, and South Carolina would also be jeopardized if this regulation goes into effect. While we in America are fortunate to enjoy the best health care in the world, we also have concerns about the availability of life saving care should an organ fail. Advances in medicine have made once rare transplants commonplace. Yet, there is a scarcity of organs, despite the hard work of local organ procurement agencies, transplant centers, and, indeed, developers of artificial technology such as the work being done on artificial hearts at the University of Utah. Added to this concern about the availability of organs is a growing anxiety about the impact of HHS's proposed transplant allocation rules. A large source of this concern is within the hard-working transplant community. In fact, the Department of Health and Human Services has indicated that more than 85% of the almost 18,000 comments received oppose the organ procurement transplant network final rule. In particular, we are seeing a rising concern about variations in the availability of organs from region to region. The HHS response, which is to, in effect, nationalize distribution, seems logical at first, but upon further reflection is a flawed policy with potentially devastating near-term effects on many transplant centers. By diverting resources from relatively ``organ-rich'' to relatively ``organ-poor'' regions, the HHS rules penalize communities which have worked to build up successful programs, including those which have done so much to improve the harvesting rates of much-needed organs. I commend Secretary Shalala for bringing the need to further improve the organ transplant system to the forefront. One positive step is the recent rule requiring all 5,200 U.S. acute care hospitals to notify an organ procurement organization of every death as a condition of Medicare participation. Health Care Financing Administrator Nancy Ann Min-Deparle estimates that this step alone will increase organ donations by up to 20 percent. While this was a widely supported step, the proposed rules governing the Organ Procurement and Transplant Network have not enjoyed the same enthusiasm. In January, I joined 41 other Senators who wrote to Secretary Shalaha expressing concern that the proposed final rule could be used as vehicle to turn organ allocation into a political process. Her response did not alleviate my concerns, nor those of the transplant community. We cannot damage the public trust in the organ network, nor in the decisions of health professionals who operate the transplant system. While it will never be an easy task to allocate such a critical scarce resource--organs--we cannot let this become nothing more than a turf war between large and small transplant centers. Large centers play an important role by being at the heart of the innovations which have brought us the technical advances making current liver transplant possible. Smaller centers also make many contributions including making such technology more accessible to Americans. This allows the patient to be closer to family and loved ones during this stressful time. We must find a way to increase the organs and reduce the perceived inequities in the current system. We need the facts to address the problem. For this reason, I support the provision, which I understand will be contained in the omnibus appropriations bill, that will place a one- year moratorium on the implementation of the HHS rules. This moratorium will allow us to learn the facts necessary to improve the availability of transplantation. Mr. President, what we have at stake is not just the amelioration of a flawed organ transplant procurement and allocation system, but the future of allocating scare health care resources of all types. It behooves us to proceed carefully on this matter of utmost concern.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce the ``Drug Demand Reduction Act,'' a bill that improves demand reduction efforts by focusing on the anti-drug media campaign, drug-free jails, and drug- free schools. The bill also contains several congressional resolutions aimed at encouraging community involvement, rejecting efforts to legalize illegal drugs, and streamlining prevention and treatment programs. This legislation is supported by General Barry McCaffrey, Director of the Office of National Drug Control Policy. The original companion bill was introduced in the House of Representatives by Congressman Portman and Congressman Barrett on September 16, 1998, and passed with overwhelming bipartisan support, 396-9. I commend them for their leadership and thank them for their efforts. As many of you know, I worked hand in hand with my colleagues in the House on this issue, I held hearings in the Senate Committee on the Judiciary concerning these issues, and more recently, I worked with the Leadership to include this bill into the legislative package of anti- drug bills that is being incorporated into the Omnibus Appropriations bill for Fiscal 1999. This bill represents a substantial step toward reducing the rates of drug abuse in our country. According to the respected Monitoring the Future from 1991 to 1997, the lifetime use of marijuana--the gateway to harder drugs--has increased among school-age youth. The lifetime use of marijuana by 8th graders--that is those 8th graders who have ever used marijuana-- increased by 122% from 1991 to 1997. For 10th graders, marijuana use increased by 81% and for 12th graders, 35%. Cocaine use among our youth has also seen staggering increases. From 1991 to 1997, the lifetime use of cocaine increased by 91% for 8th graders. The lifetime use of cocaine by 10th graders increased by 73% during the same time period. The number of 8th graders who have used cocaine within the past year increased by 154% from 1991 to 1997. Heroin use has also exploded since 1991. The reported lifetime use of heroin for both 8th and 10th graders increased by 75%. For 12th graders, heroin use increased by 133%. The number of 8th graders who have used heroin within the past year has increased by 86% from 1991 to 1997. For 10th and 12th graders, heroin use increased by 180% and 120%, respectively. These figures are staggering when you consider that each percentage point represents thousands of teens who are much more likely to become bigger problems for society as they become adults. The drug abuse situation in our country is an issue about which I care deeply. In June of this year, the Judiciary Committee held a hearing on the growing national crisis of drug abuse among our children. I think it is clear from all the available information and from the testimony heard at the hearing that youth drug abuse is not stable, but is instead rising sharply. Several of the witnesses who testified described how accessible drugs were to our young people. For example, Chris who works as an undercover investigator in high schools in Dayton, Ohio, described to the Committee how easy it was to get drugs in today's high schools. ``Within the first investigation, I was approached within three weeks, by someone offering to sell to me. The second investigation, I was approached in a week-and-a-half by someone again wanting to sell to me. In high schools, you don't have to do a lot of seeking, you know. . . . Pretty much, they are going to come to you.'' What is the reason behind this surge in teen drug consumption? I believe several things. First, there has been a decline in anti-drug messages from elected leaders--like President Clinton and similar messages in homes, schools, and--until recently with the airing of anti-drug messages developed for the Youth Media Campaign--the media. Second, the debate over the legalization of marijuana and the glorification of drugs in popular culture has caused confusion in our young people. Third, disapproval of drugs and perception of risk has declined among young people. The percent of 8th, 10th and 12th graders who ``disapproved'' or ``strongly disapproved'' of use of various drugs declined steadily from 1991 to 1995. In 1992, 92% of 8th graders, 90% of 10th graders, and 89% of 12th graders disapproved of people who smoked marijuana regularly. By 1996, however, those figures had dropped significantly. We must change tactics and find a way to do something to stop this epidemic from continuing and destroying the future of our children. This bill, which I expect will be enacted as part of the Omnibus Appropriation bill, will begin to address these problems and offer incentives to help schools, and communities to reinforce the message that drugs are dangerous. I urge all of my colleagues to support this bill. I ask consent that the bill be printed in the Record.

Mr. HATCH

Mr. HATCH. I am generally supportive of the concept embodied in the amendment offered by the Senator from Arizona which was discussed in committee, and I regret that it was not possible to work out acceptable language to include in this bill. Next Congress, I believe the Judiciary Committee should take up the challenge of reviewing this Nation's encryption policies and ensure that law enforcement agencies can continue to fulfill their critical responsibilities. This review will include a hearing to consider the FBI's proposed Technical Support Center, in order to evaluate its potential for solving some of law enforcement's access concerns. I pledge my support to help enact legislation to address the use of encryption in furtherance of a felony.

Mr. HATCH. Mr. President, after months of review and careful Committee action, I am proud that the full Senate is poised to approve the International Crime and Anti-Terrorism Amendments of 1998. Along with Senators Leahy, Biden, and others, the Senate Judiciary Committee has undertaken a careful review of the ambitious and expansive international crime package developed by the administration and introduced by President Clinton on May 12. This proposal took the best ideas developed by the Department of Justice, the Customs Service, the Treasury Department, and other federal agencies involved in the fight against international crime. Senator Leahy and I have worked with the Department to winnow the bill down to 17 sections which are generally noncontroversial but would provide valuable assistance in the fight against international crime, terrorism, and drug trafficking. Potentially controversial sections have been shelved in an effort to broaden support for the legislation, and Senator Leahy supports each of the remaining 17 sections. I hope that next Congress we can undertake a broad review of these issues and confront the more difficult provisions which have been placed aside for the moment. It is clear that the world has become a smaller place, with faster transportation and communication, loosening of borders, and great leaps in transnational economic activity. But as these changes have benefited law-abiding citizens, they have also made it easier for criminals to spread their misery and destruction throughout the globe. Whether we talking about drug cartels, arms smugglers, terrorists, or those involved in economic espionage, international crime is an increasing threat to our national security and well-being. This legislation should not be seen as a comprehensive response to these problems, but rather as a package of moderate technical responses to weaknesses in current law that would make a real difference in the fight against international crime. Our proposal, among other things, improves federal laws which regulate the jurisdiction of law enforcement, allows exclusion of violent criminals, determines how our legal system deals with foreign defendants and records, and responds to emerging computer and financial crimes. On a title-by-title basis, the bill does the following: Title I--Investigating and Punishing Violent Crimes Against U.S. Nationals Aboard 101 Extend investigative authority to cover crimes committed against U.S. nationals abroad by organized criminal groups 102 Allow federal authorities to investigate murder and attempted murder of state and local officials Title II--Strengthening the Borders of the United States 201 Strengthen law enforcement authority to board ships Title III--Denying Safe Haven to International Criminals and Enhancing National Security Responses 301 Allow exclusion from U.S. of persons fleeing lawful, non-political prosecution 302-04 Allow exclusion of persons from U.S. involved in RICO offenses, arms trafficking, drug trafficking, or alien smuggling from U.S., with waiver authority to Attorney General 305 Forfeiture of proceeds of foreign crimes held in U.S. 306 Expand administrative summons authority under Bank Secrecy Act 307 Increase monetary penalties for violations of International Emergency Economic Powers Act 308 Add attempt crime to Trading with the Enemy Act Title IV--Responding to Emerging International Crime Threats 501 Expand wiretap authority to cover computer fraud and hackers 502 Expand extraterritorial jurisdiction to cover credit card, ATM, and other electronic frauds with can cause harm in U.S. Title V--Promoting Global Cooperation in the Fight Against International Crime 601 Authority to share proceeds from joint forfeiture actions with cooperating foreign agencies 602 Changes in procedures for MLAT's (mutual legal assistance treaties) Title VI--Streamlining the Investigation and Prosecution of International Crimes in U.S. Courts 701 Allow Attorney General to reimburse state and local governments for costs incurred in assisting extraditions 702 Change Federal Rules of Evidence to ease admission of foreign records 703 Bar foreign fugitives from receiving credit for time served abroad I appreciate the Senate's quick action on this necessary legislation, and I urge the House to pass this bill before we adjourn. Following my statement is a detailed section-by-section analysis of the legislation. International Crime and Anti-Terrorism Amendments of 1998 title i--investigating and punishing violent crimes against u.s. nationals abroad Section 101. Murder and extortion against U.S. nationals abroad in furtherance of organized crime (old section 1001) This section provides additional discretionary authority for investigations and prosecutions of organized crime groups who perpetrate criminal acts against U.S. nationals abroad. With the expanded role of Federal law enforcement, specifically the Federal Bureau of Investigations, in the investigation of international organized criminal groups, additional legislation is needed to counteract crimes occurring abroad. Statutes now in effect are narrow and generally address these kinds of issues only when they are related to international terrorism matters. This provisions broadens the scope of other current statutes so that they can be of assistance in targeting violent criminal acts committed against U.S. nationals by members of organized criminal groups. The same safeguards are required that have been established in statutes relating to international terrorism, i.e., such a prosecution cannot be brought without the approval of the Attorney General, the Deputy Attorney General, or an Assistant Attorney General. In subsection (g), the statute places a monetary limitation in extortion cases, and defines an organized criminal group by reference to the RICO statute. These limitations have been included to preclude any expectation that the United States will devote resources to investigate and prosecute cases which are or primarily local (versus international) impact or those which the foreign nation is adequately addressing. Section 102. Murder and serious assault of a state or local official abroad (old section 1002) This section provides additional discretionary authority to investigate and prosecute murders and serious assaults of State and local Officials that occur abroad when the State and local officials are involved in a federally-sponsored training or assistance program. As the United States expands its efforts to fight international crime and bring peace and stability to nations the world over, the role of State and local officials--law enforcement, judges, and others--in federally-sponsored training and other forms of assistance programs is also increasing. The scope of these programs is broad, and includes programs designed to bolster law enforcement, promote trade and tourism, and improve education. As with United States military personnel, these officials may become targets of violent acts committed abroad. Insofar as these officials are often involved in training designed to assist a host country in improving its criminal justice system or other public-sector infrastructures, the host country may lack the resources and skills to effectively investigate and prosecute such crimes. Because these officials are acting under the auspices of the Federal Government, the United States has a strong interest in prosecuting those criminals who attack and kill them. As with other provisions of law that allow extraterritorial jurisdiction over crimes, this provision requires that the Attorney General approve any prosecutions under this section. title ii--strengthening the borders of the united states Section 201. Sanctions for failure to heave to, obstructing a lawful boarding, and providing false information (old section 2201) The Coast Guard is authorized to enforce, or assist in the enforcement of, all applicable federal laws on, under, and over the high seas and waters subject to the jurisdiction of the United States (14 U.S.C. Sec. 2). Coast Guard commissioned, warrant, and petty officers are also deemed to be customs officers (14 U.S.C. Sec. 143; 19 U.S.C. Sec. 1401). The Coast Guard may board and examine any vessel subject to the jurisdiction of the United States (14 U.S.C. Sec. 89). To carry out this broad grant of authority, statutory sanctions are needed against the master, operator, or person in charge of a vessel who fails to obey the order of a federal law enforcement officer to heave to, or who otherwise obstructs the exercise of law enforcement authority. Under existing law, a civil penalty can be imposed for failure to heave to a vessel upon the command of a customs officer (19 U.S.C. Sec. 1581(d)). However, the penalty only applies to violations involving vessels at those places where a customs officer is authorized to stop and board. In addition, a criminal and civil penalty can be imposed for failure to stop a vessel when hailed by a customs officer or other government authority within 250 miles of the territorial sea of the United States (19 U.S.C. Sec. 1590(g)(8)). However, these penalties may be imposed only on vessels caught with prohibited or restricted merchandise. As a last resort, to compel vessels to heave to, the Coast Guard is authorized, after firing warning shots, to fire into and disable a vessel which has failed to stop (14 U.S.C. Sec. 637). Appropriate sanctions are required to facilitate and enhance the Coast Guard's interdiction of vessels smuggling contraband. The Coast Guard requires an intermediate measure--short of firing into a vessel--to compel a vessel to comply with a lawful order to heave to. Without such sanctions drug smugglers can delay or sometimes prevent the legitimate exercise of Coast Guard law enforcement boarding authority. Such sanctions are necessary to address the following scenario. The operator of a vessel fails to heave his vessel to in order to delay a Coast Guard boarding. After a lengthy pursuit, the vessel is finally boarded and no contraband is found. Or the operator of a vessel avoids being boarded by failing to heave his vessel to and fleeing; he eventually enters the territorial waters of a safe haven country. In either case, the vessel may have initially been carrying contraband--which has been jettisoned--or may have been acting as a decoy to divert Coast Guard assets away from other vessels carrying contraband. The use of such tactics by drug smugglers not only thwarts Coast Guard drug law enforcement efforts, but diverts Coast Guard assets from their other missions. Sanctions are also required to deter non-forcible acts of obstruction during a Coast Guard boarding. While forcibly obstructing a federal law enforcement officer is a crime (18 U.S.C. Sec. Sec. 111, 113), no statute provides penalties, criminal or civil, for non-forcible acts of obstruction during a Coast Guard boarding. Such penalties are needed as a deterrent to prevent confrontational situations from escalating from non-physical obstructions of boardings to physical assaults on Coast Guard boarding officers. Sanctions are also required as a means to compel persons on board vessels to provide truthful information regarding the vessel's destination, origin, ownership, registration, nationality, cargo, or crew. False information concerning a vessel's nationality or registration can delay the determination as to whether the United States has jurisdiction over a vessel, or hinder attempts to obtain consent from a foreign country for the United States to exercise jurisdiction. This offers drug smugglers the opportunity to jettison contraband and destroy evidence. Truthful information concerning the vessel's destination, origin, ownership, cargo, or crew facilitates the ability of the boarding team to determine whether the vessel may be engaged in drug smuggling. This information is also important for the successful prosecution of drug smuggling cases. This section addresses these gaps in current United States drug interdiction law and makes several changes to enhance enforcement of federal law involving vessels. Subsection (a)(1) provides that it shall be unlawful for the master, operator, or person in charge of a vessel of the United States, or a vessel subject to the jurisdiction of the United States, to fail to obey an order to heave to that vessel on being ordered to do so by an authorized federal law enforcement officer. Paragraph (2) provides that it shall be unlawful for any person on board a vessel of the United States, or a vessel subject to the jurisdiction of the United States, to: (1) fail to comply with an order of an authorized federal law enforcement officer in connection with the boarding of the vessel; (2) impede or obstruct a boarding or arrest, or other law enforcement action authorized by any federal law; or (3) provide false information to a federal law enforcement officer during a boarding of a vessel regarding the vessel's destination, origin, ownership, registration, nationality, cargo, or crew. Nothing in this section is a limitation on 18 U.S.C. Sec. 1001, which makes it a crime to give a false statement to a government agent. Subsection (b) provides that this section does not limit in any way the preexisting authority of a customs officer under section 581 of the Tariff Act of 1930 or any other provision of law enforced or administered by the Customs Service, or the preexisting authority of any federal law enforcement officer under any law of the United States to order a vessel to heave to. This section is necessary to establish that this statute in no way limits the potential actions of federal law enforcement officers that exist under other statutes. Subsection (c) specifies that a foreign nation may consent or waive objection to the enforcement of United States law by the United States under this section in an international agreement, or, on a case-by-case basis, by radio, telephone, or similar oral or electronic means. Consent or waiver may be proven by certification of the Secretary of State or the Secretary's designee. Subsection (d) defines the terms used in this section, including ``vessel of the United States,'' ``vessel subject to the jurisdiction of the United States;'' to ``heave to;'' and ``Federal law enforcement officer.'' Subsection (e) sets forth penalties for violation of this section. Any person who intentionally violates the provisions of this section shall be subject to: (1) imprisonment for not more than five years; and (2) a fine as provided in this title. Subsection (f) authorizes the seizure and forfeiture of a vessel that is used in violation of this section. Existing customs laws and duties shall apply to such seizures and forfeitures. This subsection further provides that any vessel that is used in violation of this section is also liable in rem for any fine or civil penalty imposed under this section. This provision gives added force to the prohibitions contained in the section, and provides additional incentives to would-be portrunners to comply with the law. title iii--denying safe haven to international criminals and enhancing national security responses Section 301. Exclusion of persons fleeing prosecution in other countries (old section 3201) This section will add flight to avoid lawful prosecution as an additional ground of inadmissibility under the Immigration and Nationality Act and designate the country seeking to prosecute such individuals as the primary country of deportation. This section will be triggered if the crime for which prosecution is sought is a crime of moral turpitude, other than a purely political offense. Individuals often seek refuge in the United States to avoid prosecution for crimes committed in other countries. Presently, if such persons are detected attempting to enter the United States, the United States must either find some other basis for exclusion (e.g., having been previously convicted of another crime), or embark on lengthy extradition proceedings, assuming there is an applicable extradition treaty, which is not always the case. This section will provide an independent statutory basis to remove persons who enter or attempt to enter the United States for the purpose of avoiding lawful prosecution in another country and to return them to the country seeking their prosecution unless the Attorney General, in his/her discretion, determines that such return would be impracticable, inadvisable, or impossible. An additional ground of removal under INA section 237 is not necessary because such an alien fugitive found in the United States would be removable under section 237(a)(1)(A) as an alien inadmissible at the time of entry or adjustment of status. The provision is intended to reach situations where the person flees after a warrant has been issued or in anticipation of a warrant being issued. Nothing in this proposed new section would alter U.S. obligations to protect bona fide refugees. Persons covered by this section remain eligible to apply for withholding of deportation under INA section 241(b)(3), and asylum under section 208, to the extent those remedies would otherwise be available. Section 302. Exclusion of persons involved in racketeering and arms trafficking (old section 3202) This section will provide for inadmissibility of any individual whom a consular officer has reason to believe has or is engaged in certain RICO and arms trafficking offenses, or any criminal activity in a foreign country that would constitute such an offense if committed in the United States, regardless of whether a judgment of conviction has been entered or avoided due to flight, corruption, etc. This section treats serious criminals with the same standard applicable to drug traffickers and will make our ability to exclude aliens involved in such activities less dependent upon our ability to draw inferences about a person's intent to do something illicit in the United States. With only minor exceptions, the RICO offenses referenced constitute crimes involving moral turpitude that are already grounds for exclusion under the Immigration and Nationality Act. The Provision includes a waiver provision that allows the Attorney General to waive its applicability for offenses other than aggravated felonies. This provision has been added to provide the Attorney General flexibility to waive these provisions in the event that there is a law enforcement, humanitarian or other important national interest justifying such waiver. A part of this section related to spouses and adult children of persons in this category has been removed before Committee consideration. Section 303. Clarification of exclusion of persons involved in drug traffickers (old section 3203) This section makes minor changes to the law concerning exclusion of those the Attorney General or a consular officer has reason to believe are or have been an illicit trafficker in controlled substances. A part of this section related to spouses and adult children of persons in this category has been removed before Committee consideration. Section 304. Exclusion of persons involved in international alien smuggling (old section 3204) This section will address the problem of excluding international alien smugglers where there is evidence that they have assisted aliens to illegally enter countries other than the United States, but not the United States. Often there is a strong likelihood that such assistance was part of a scheme to illegally bring such aliens into the U.S. or could develop into a scheme to illegally bring such aliens into the U.S., but under current law the alien providing such assistance may not be excludable. This provision will allow consular officers and the Immigration and Naturalization Service to find such aliens ineligible for entry into the U.S. when the alien should have known that the illegal entry into another country would have assisted other aliens to enter the U.S. in violation of law. Section 305. Seizure of assets of persons arrested abroad (old section 4008) This section relates to situations where a person has been arrested in a foreign country and there is a danger that property subject to forfeiture in the United States in connection with the foreign offenses will disappear if it is not immediately restrained. In the case of foreign arrests, it is possible for the property of the arrested person to be transferred out of the United States before U.S. law enforcement officials have received from the foreign country the evidence necessary to support a finding a probable cause for the seizure of the property in accordance with federal law. This situation is most likely to arise in the case of drug traffickers and money launderers whose bank accounts in the United States may be emptied within hours of an arrest by foreign authorities in the Latin America or Europe. To ensure that property subject to forfeiture in such cases is preserved, the new provision provides for the issuance of an ex parte restraining order upon the application of the Attorney General and a statement that the order is needed to preserve the property while evidence supporting probable cause for seizure is obtained. A party whose property is retrained would have a right to a post-restraint hearing in accordance with Rule 65(b), Fed.R. Civ. Section 306. Administrative summons authority under the Bank Secrecy Act (old section 4015) This section will amend 31 U.S.C. Sec. 5318(b)(1) to expand the situations in which an administrative summons will be sufficient to obtain information from financial institutions subject to the Bank Secrecy Act (BSA). At present, the Secretary of the Treasury is permitted to examine information maintained at financial institutions under the requirements of the BSA, but is permitted to summon information or individuals only ``in connection with investigations for the purpose of civil enforcement of violations of'' BSA, it regulations, or certain related statutes. BSA policy requires the government to focus on the efficacy of compliance systems rather than attempt to identify particular BSA violations. Restriction of summons authority to investigations for the purpose of civil enforcement of BSA violations could hamper the ability of the Secretary to review the adequacy of compliance systems. In addition to existing civil enforcement authority, this amendment will enable the Secretary to review the adequacy of BSA compliance systems. Subpoena requests will remain subject to the account holder rights specified in the Right to Financial Privacy Act. Section 307. Criminal and civil penalties under the International Emergency Economic Powers Act (old section 4018) This provision will increase the monetary limits of the civil and criminal penalty authorities provided for in the International Emergency Economic Powers Act (IEEPA). IEEPA currently provides for civil penalties of up to $10,000 per violation of IEEPA prohibitions, and criminal penalties of up to $50,000 per violation for individual and corporations, and imprisonment for up to 10 years per violation by individuals and participating corporate officers. These limitations no longer constitute effective deterrents for flagrant or willful violations of IEEPA and are significantly less than the penalty limitations provided for in the Trading with the Enemy Act for violations of economic sanctions imposed under that statute. The ineffectiveness of the civil penalty cap is particularly apparent in situations where the IEEPA violation relates to transactions (and profits) valued at many times the maximum penalty amount. This section will raise the IEEPA civil penalty authority to $50,000 per violation, and raise the criminal penalty monetary limits to $250,000 per violation for individuals and participating corporate officers, as is provided for criminal offenses generally in 18 United States code Sec. 3571(b)(3), and $1 million per violation for corporations. Section 308. Attempted violations of the Trading With the Enemy Act (old section 4019) This section will amend the Trading with the Enemy Act (TWEA) to provide that criminal and civil penalties may be imposed not only against any person who violates a license, order, or regulation issued under TWEA, but also against a person who attempts to violate such a license, order, or regulation. last year, Congress added an ``attempt'' provision to the International Emergency Economic Powers Act (IEEPA), but did not add a similar provision to its companion statute, TWEA. TWEA lacks an attempt provision similar to those found in other export administration statutes, for example, the Export Administration Act. Recent executive orders imposing economic sanctions and regulations implementing such orders typically include language prohibiting attempted violations. Current case law in the federal circuit courts of appeal supports promulgation of regulations prohibiting attempts to violate statutes not explicitly containing attempt language. In spite of these factors, the absence of an attempt provision in TWEA makes prosecution of attempted violations more problematic. to clarify existing law and to insulate prosecutions of attempted violations from any possibility of attack based on the scope of the President's authority, these amendments expressly prohibit attempts to violate TWEA. title iv--responding to emerging international crime threats Section 401. Enhanced authority to investigate computer fraud and attacks on computer systems (old section 5101) This section would add certain violations relating to computer crime to the list of serious criminal activity for which 18 U.S.C. Sec. 2516 permits court authorized interception of wire, oral, and electronic communications when the rigorous requirements of chapter 119 (including section 2516) are met. Violations of 18 U.S.C. Sec. 1030 can include computer fraud and attacks on computer systems, such as those controlling the public telecommunications networks, air traffic control, and the electric power network. In computer attack cases, since the evidence of the crime may lie largely in cyberspace, interceptions of wire and electronic communications may be the primary or only available avenue of investigation. Moreover, in computer cases where the activities originate from a business or university, voicetaps may be the only way to complete the identification of the criminal actually using the terminal involved. The statute limits wiretap authority to investigation of felony offenses. Section 402. Jurisdiction over certain financial crimes committed abroad (old section 5102) This section clarifies the extraterritorial jurisdiction of 18 U.S.C. Sec. 1029 (access device fraud). It expressly recognizes United States jurisdiction over access device fraud--including credit card fraud, debit card fraud and telecommunications fraud--in cases where the fraud causes an effect on an entity within the jurisdiction of the United States, even if the defendant has never physically entered the United States. Such a clarification is of great importance to the United States' ability to protect its financial system. The modern financial system relies substantially on access devices to access and utilize a vast array of accounts and systems, including credit and debit card accounts, accounts in banks and other financial institutions, electronic funds, and telecommunications systems. Increasingly, U.S. financial, corporate and government entities have implemented access device payment systems to conduct transactions reaching billions of dollars per day. The dramatic increase in electronic and computerized access to such systems from outside the United States has enhanced the vulnerabilities of these systems to criminal activities internationally. By recognizing that the United States has the authority to protect its access device systems against both foreign and domestic threats, this section ensures the security and integrity of United States based payment systems in the same way that 18 U.S.C. Sec. 470 ensures the integrity of United States currency. Together, this section and 18 U.S.C. Sec. 470 will enhance the United States' ability to protect its financial system and combat transnational financial crimes that target that system. title v--promoting global cooperation in the fight against international crime Section 501. Sharing proceeds of joint forfeiture operations with cooperating foreign agencies (old section 6001) This proposal provides for expansion of the authorization to share forfeited property with foreign governments that cooperate in federal forfeitures. It was Section 406 of the ``Forfeiture Act of 1996'' which has been previously submitted to Congress. Section 981(i) of Title 18, U.S. Code, authorizes the sharing of forfeited property with foreign governments in certain circumstances. It currently applies to all civil and criminal forfeitures under 18 U.S.C. Sec. Sec. 981, 982, which are the forfeiture statutes for most federal offenses in Title 18. Older parallel provisions applicable only to drug cases and Customs cases appear in 21 U.S.C. Sec. 881(e)(1)(E) and 19 U.S.C. Sec. 1616a(c)(2), respectively. The amendment simply extends the existing sharing authority to all other criminal and civil forfeitures, including those undertaken pursuant to RICO, the Immigration and Naturalization Act, the antipornography and gambling laws, and other statutes throughout the United States Code. Because the amendment makes the parallel provisions in the drug and customs statutes unnecessary, Section 881(e) is amended to remove the redundancy. Section 502. Streamlined procedures for execution of MLAT requests (old section 6002) This section expands the authority of U.S. district courts to execute, or order execution of, foreign requests for assistance in criminal matters made pursuant to mutual legal assistance treaties (MLATs), conventions, and executive agreements such as an ``antitrust mutual assistance agreement'' (see, e.g., 15 U.S.C. Sec. 6201 et seq.). This section applies only when the execution of such a request requires or appears to require the use of compulsory measures in more than one district. On such occasions, this section permits a judge or judge magistrate in any district involved in a multidistrict execution, or in the District of Columbia, to execute the entire request. The U.S. generally relies on 28 U.S.C. Sec. 1782--which authorizes the practice of appointing a ``commissioner'' to execute a foreign request for assistance--to provide the framework for executing foreign requests for assistance, whether made by letter rogatory, letter of request, request pursuant to an MLAT, or other similar form of request. Section 1782 calls for execution of the foreign request in the district where the witness resides or is found, or where the evidence is located. Consequently, the Attorney General-- the authority to whom foreign requests in criminal matters are generally sent for execution--often transmits the same request to each district in which a witness or evidence may be located for execution of that portion directly connected to the district. This practice of transmitting a request to each and every district in which assistance requested may be found is inefficient and prone to creating delay. A majority of requests entail execution in multiple districts. Execution of a multiple district request requires substantial coordination by U.S. authorities (e.g., often documents located in different districts must be produced and analyzed before testimony from witnesses located in other districts can be profitably taken) and duplication of efforts by U.S. authorities (e.g., a judge or magistrate judge, prosecutor, and assisting agent or agents in each district must become familiar with and involved in executing the same request). In addition to the profligate expenditure of U.S. resources, the practice often results in delay, rendering the U.S. unable to provide foreign law enforcement authorities, and especially foreign treaty partners, with the level of service that the U.S. would like to receive with respect to U.S. requests. Another problem often encountered with multidistrict requests is that a U.S. Attorney's Office designated to execute a portion of a request is unable to devote the necessary resources at the time requested. If timing is critical, and it often is, execution of the request in a district involved in another aspect of the execution, or in the District of Columbia, is a reasonable solution. This proposal provides an alternative to the current practice of executing foreign requests for assistance only in each and every district in which a witness or evidence is located. Placing authority in a U.S. district court for a district otherwise involved in the execution of a multidistrict request, or in the U.S. District Court for the District of Columbia, should dramatically improve: (1) the efficient use of U.S. resources to execute foreign requests that involve multiple districts, and (2) the execution of requests involving multiple districts in a timely manner. Providing the U.S. District Court for the District of Columbia as an alternative venue also permits the Attorney General, with requests that require substantial allocation of resources or coordination, to provide attorneys to undertake execution in the District of Columbia in conjunction with the United States Attorney's Office for the District of Columbia. Finally, this proposal recognizes that executing foreign requests in criminal matters by requiring witnesses to appear in different districts from those in which they are located may create some hardships for witnesses, just as it does in domestic criminal investigations and prosecutions where the U.S. prosecutor subpoenas witnesses to appear anywhere in the U.S. (i.e., where in the U.S. the investigation or prosecution is taking place). This proposal contemplates the same possibility of travel to comply with a commissioner's order as in a domestic criminal investigation or prosecution; however, it provides a procedure to balance the hardship against the exigencies of the request. Upon notice to either the court or the commissioner executing the request, the court will decide whether to transfer execution involving the complaining witness to that witness' district by balancing the (1) inconvenience to the witness against the (2) negative impact upon execution of the request.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today in support of Senate passage of H.R. 1197, the Plant Patents Amendment Act of 1997. This legislation, passed by the House last Friday, would close a loophole in the Patent Act through which foreign infringers are able to exploit the products of their infringements within the United States, depriving American plant patent owners of millions of dollars in royalties. This bill is identical to legislation introduced in the Senate by Senator Gordon Smith, and its substantive provisions are mirrored in the omnibus patent bill I introduced and which was reported favorably to the Senate by the Judiciary Committee last year. The development of new plant varieties in the United States is encouraged by chapter 15 of the Patent Act, which grants patent-like protection to anyone who develops new, distinct varieties of asexually reproduced plants. Plant patent owners are rewarded for their ingenuity with a limited monopoly that allows them to prevent others from asexually reproducing the plant or selling or using a plant so reproduced. The so-called loophole exists because the sale or use of plant parts is not explicitly prohibited. As a result, plant patent owners must stand by while their patents are infringed abroad and the products of such infringement--for example, fruit or cut flowers--are then imported to and sold within the United States, without a single dime in royalty revenue to the patent owner. This is no small problem. Royalty losses with respect to some key horticultural plants have been estimated to reach between $50 to $100 million over the past five to ten years. This is money that rightfully should be directed to American plant patent owners--many of whom are small businesses and family farmers--and which would otherwise contribute tremendously to the U.S. economy. Enactment of this legislation is not only good for American business and the economy, it is consistent with our international treaty obligations. The International Convention for the Protection of New Varieties of Plants (UPOV) was last revised in March 1991, and the United States signed the convention in October 1991. This convention provides protection for plant breeders by requiring member countries to accord certain plant patent rights, including specifically the right to prohibit others from selling, importing, or exporting harvested material (i.e., plant parts) derived from unauthorized asexually reproduced plants. Mr. President, I had hoped to enact this change in the context of a comprehensive patent reform bill. I am disappointed that consideration of that bill has been blocked by a few senators with unrelated and rather non-descript objections, and that we are forced to take this measure up as a stand-alone bill. Nevertheless, I am pleased that the House has acted on this measure, and I commend the efforts of my colleague, Senator Smith, to bring this bill to a vote in the Senate.

Mr. HATCH

Mr. HATCH. Mr. President, prior to the passage of H.R. 3494 by the Senate and House, Title 18 of the United States Code, Section 2252 and 2252A permitted prosecution for possession of child pornography only when it could be alleged that an individual possessed three or more pictures or images of child pornography. When the original Senate substitute to H.R. 3494 was reported out of the Judiciary Committee, no agreement had been reached on amending the federal child pornography laws to prohibit the possession of even one picture or image of child pornography. Thanks to the diligent efforts of Senators Leahy, DeWine, and Sessions, we were able to reach agreement on that issue. The final bill makes it clear that the United States has ``Zero Tolerance'' for the possession of any child pornography. Unfortunately, Senators Leahy, DeWine, and Sessions were inadvertently omitted from the list of cosponsors of Senate amendment 3812 to H.R. 3494, which incorporated that agreement. The Record should be corrected to reflect their work on, and cosponsorship of, this important amendment.

Mr. HATCH

Mr. HATCH. Mr. President, the DMCA is a remarkable bill that is the result of a remarkable process. By enacting this legislation in a timely fashion, the United States has set the marker for the rest of the world with respect to the implementation of the new WIPO treaties. As a result, the United States can look forward to stronger world-wide protection of our intellectual property and a stronger balance of trade as inbound revenues from foreign uses of our intellectual property continue to increase. I am pleased to have been a part of this great effort, and I look forward to the President's signing of H.R. 2281. Exhibit 1 Macrovision Corporation, Sunnyvale, CA, October 7, 1998. Hon. Orrin Hatch, Chairman, Committee on the Judiciary, U.S. Senate, Washington, DC. Dear Chairman Hatch: I am writing this letter to you in your capacity as Chairman of the Senate-House Conference Committee on the Digital Millennium Copyright Act of 1998. We understand that the Conference Committee is prepared to include in the final legislation to be reported to the Senate and House of Representatives a provision that requires that analog videocassette recorders manufactured and/or sold in the United States must conform to two analog copy control technologies certain aspects of which are proprietary to Macrovision Corporation. As you may know, Macrovision Corporation has been in business for 15 years providing various copy control technologies to help copyright owners protect their valuable intellectual property. We license various technologies to hardware manufacturers, including manufacturers of consumer electronics and various computer- based products, and to Hollywood movie studios and other independent video producers. We are a small company and have worked very hard over the past two-and-a-half years to demonstrate to the consumer electronics, computer, and motion picture companies and industries that our copy control technologies offer the best solution to digital-to-analog copy protection for the DVD format, as well as in its traditional analog videocassette application. We have worked with the companies and industries to ensure that compatability and effectiveness are assured, and, as a result, our technologies have been required for use to provide protection of the analog outputs of DVD playback devices implementing the two encryption-based copy protection systems now in the market--the Content Scramble System (CSS) and DIVX. We support the legislative proposals that are being considered by the Conference Committee, in the form of Subsection ``k'' and its corresponding legislative history as attached to this letter. We also recognize the unique position that such legislation provides to our technology and our company. Accordingly, we are writing to assure you and your colleagues on the Conference Committee that we will not abuse our position in our licenses for the technologies for which responses are being required by this legislation. Specifically, we are willing to assure you and the Committee that any licenses that may be necessary to implement these technologies will be offered on reasonable and non- discriminatory terms, as that phrase is commonly used and understood in industry standards processes. We will modify certain terms and conditions of our baseline analog copy control license agreements--and offer the same modifications to existing licensees--if this legislation is enacted in order to eliminate our contractual requirements that analog videocassette recorders manufactured in or sold in the United States respond to our technologies and that certain display device manufacturers ensure that their products are compatible with our technologies, in the sense of not displaying visible artifacts or distortions in the authorized playback of material protected using our analog copy control technologies. The first of these requirements will now be the subject of the statutory requirement that is the subject of the legislative provision. The second requirement will now be the subject of an inter- industry forum on compatability issues, that will afford all interested parties an opportunity to work together to resolve such issues as they arise. We hasten to add that we do not expect such problems to arise, since our technologies have been proven to the satisfaction of the manufacturers that they do not cause problems, and we do not expect to make any material modifications to them in the future. Manufacturers already know what the technologies are and can test their products before finalizing their design. We commit to you and your colleagues that any changes that are made to our technologies will be the result of inter and intra industry consensus on the changes before they are made. Nevertheless, in order to reassure everyone involved, we are prepared to cooperate in the inter-industry forum that is being established. We have been assured that this forum will be established within six months after passage of this legislation and will include equal representation from the consumer electronics, computer, and movie studio industries. With regard to our licensing terms, we commit to you and your colleagues that we will from the date of enactment adhere to the following points--which are essentially reflective of our current licensing policies. First, as stated above, our proprietary analog copy protection technology will be offered on reasonable and non- discriminatory terms, as that phrase is used in the normal industry parlance. Second, in relation to certain specific circumstances: (a) Manufacturers of consumer-grade analog VHS and 8mm analog video cassette recorders/camcorders that are required by the legislation to conform to our proprietary analog copy protection technologies (and any new format analog videocassette recorder that is covered by paragraph (1)(A)(v) of the legislation and thereby required to conform to our proprietary analog copy control technologies) will be provided royalty-free licenses for the use of our relevant intellectual property in any device that plays back packaged, prerecorded content, or that reads and responds to or generates or carries forward the elements of these technologies associated with such content; (b) In the same circumstances as described in (a), other manufacturers of devices that generate, carry forward, and/or read and respond to the elements of these technologies will be provided with licenses carrying only modest fees (in the current dollar range of $25,000 initial payment and lesser amounts as recurring annual fees); (c) Manufacturers of other products, including set-top- boxes and other devices that perform similar functions (including integrated devices containing such functionality), will be provided with licenses on reasonable and non- discriminatory terms, including royalty and other considerations. In the absence of the specific attached legislative and explanatory language, Macrovision would not have made the above referenced commitments regarding our licensing terms and our contract clauses on VCR responsiveness and playability issues. We very much appreciate the work of you and your colleagues in helping to draft and, hopefully, ultimately enact this legislation. We also appreciate and acknowledge the leadership and cooperation of certain companies and individuals in getting this proposal to this point. I understand that this letter will be incorporated into the official report of the Conference Committee and that the Conferees are relying on our representation herein. If you or other members of the Conference have any questions or need any clarification on any point, please do not hesitate to contact me, or have one of your staff contact me. Sincerely, William A. Krepick, President/COO.

Mr. HATCH. Mr. President, last Thursday the Senate approved, by unanimous consent, the conference report on H.R. 2281, the Digital Millennium Copyright Act (DMCA). I rise today to laud the House's action in adding its vote of approval to that of the Senate. The bill now goes to the President, who I expect will move swiftly to sign this important legislation into law. As I said last Thursday, and on many other occasions, I believe the DMCA is one of the most important pieces of legislation to be considered by Congress this year, even in recent memory. It has been over twenty years since such significant copyright law reforms have been enacted in this country, and this vote has come at a critical juncture in our nation's transition to a ``digital millennium.'' But all this would not have happened without the critical support of countless parties who have come together in negotiations to refine the bill and reach a compromise that best promotes American interests at home and abroad. Once again, I want to thank all of the conferees who participated in bringing this legislation to closure. In particular, I want to recognize the efforts of my counterparts on the Senate side, Senator Leahy and Senator Thurmond. I also want to convey my appreciation for the dedicated efforts of Congressman Henry Hyde, the distinguished Chairman of the House Judiciary Committee, Congressman John Conyers, the distinguished Ranking Member of the House Judiciary Committee, and Congressman Howard Coble, the distinguished Chairman of the House Subcommittee on Courts and Intellectual Property. They have been committed to seeing this bill through from the start and have been wholly undeterred by other pressing business that has occupied the House Judiciary Committee in recent weeks. I also want to recognize Congressman Tom Bliley, the distinguished Chairman of the Commerce Committee, for his willingness to consider the Senate's views objectively and dispassionately. In addition, I want to acknowledge once again the hard work done by staff. In particular I want to recognize the efforts of Manus Cooney, Edward Damich, and Troy Dow of my staff, whose long hours and tireless efforts were key to guiding this bill through every stage of the legislative process. Bruce Cohen, Beryl Howell, and Marla Grossman, of Senator Leahy's staff, likewise provided invaluable assistance on all levels. I also want to thank Garry Malphrus of Senator Thurmond's staff for his work in conference, as well as Paul Clement and Bartlett Cleland of Senator Ashcroft's staff for their invaluable assistance in reaching key compromises in the Judiciary Committee. Finally, I want to thank the House staff, including Mitch Glazier, Debra Laman, Robert Raben, David Lehman, Bari Schwartz, Justin Lilley, Andrew Levin, Mike O'Rielly, and Whitney Fox. I also want to recognize the long hours and persistent dedication of the many people who engaged in hard-fought, but ultimately fruitful, private-sector negotiations on related issues. Many of the compromises embodied in this legislation would not have been reached without the support of these parties. For example, we would not be lauding the passage of a bill today at all were it not for the willingness of the copyright industries, Internet service providers, educators, libraries, and others in the fair use community to come together at the direction and under the supervision of the Judiciary Committee to arrive at a consensus position regarding standards for limiting the copyright infringement liability of Internet service providers. Many other negotiations were conducted and agreements reached that made this legislation possible, including agreements between copyright owners and manufacturers of the consumer electronics devices that make the use of their works by the public possible. One such agreement reflects the understanding of the motion picture industry and consumer electronics manufacturers regarding standards for the incorporation of certain copyright protection technologies in analog videocassette recorders. This agreement was the basis for the new section 1201(k) of the Copyright Act, as added by the DMCA, which requires analog videocassette recorders to accommodate specific copy control technologies in wide use in the market today. I have received a letter from Mr. William A. Krepick, President and Chief Operating Officer of Macrovision Corporation--the producer of such copy protection technology--assuring me of his commitment to adhere to the spirit of this agreement by making such technology available on reasonable and nondiscriminatory terms, which in some circumstances will include royalty-free licenses. I would ask unanimous consent that the text of this letter be incorporated in the Record immediately after my remarks.

Mr. HATCH

Mr. HATCH. Mr. President, I am delighted at the recent passage of S. 505, the Sonny Bono Copyright Term Extension Act. The main purpose of the bill is to ensure adequate copyright protection for American works abroad by extending the U.S. term of copyright protection for an additional 20 years. The late Sonny Bono was an avid supporter of the bill, and he fully appreciated what its passage would mean to the American economy. It is therefore an appropriate memorial to this fine American. 20 years ago, Mr. President, Congress fundamentally altered the way in which the U.S. calculates its term of copyright protection by abandoning a fixed-year term of protection and adopting a basic term of protection based on the life of the author. In adopting the life-plus- 50 term, Congress cited three primary justifications for the change: (1) the need to conform the U.S. copyright term with the prevailing worldwide standard; (2) the insufficiency of the U.S. copyright term to provide a fair economic return for authors and their dependents; and, (3) the failure of the U.S. copyright term to keep pace with the substantially increased commercial life of copyrighted works resulting from the rapid growth in communications media. Developments over the past 20 years have led to a widespread reconsideration of the adequacy of the life-plus-50-year term based on these same reasons. Among the main developments is the effect of demographic trends, such as increasing longevity and the trend toward rearing children later in life, on the effectiveness of the life-plus- 50 term to provide adequate protection for American creators and their heirs. In addition, unprecedented growth in technology over the last 20 years, including the advent of digital media and the development of the national Information Infrastructure and the Internet, have dramatically enhanced the marketable lives of creative works. Most importantly, though, is the growing international movement towards the adoption the longer term of life-plus-70. Thirty five years ago, the Permanent Committee of the Berne Union began to reexamine the sufficiency of the life-plus-50-year term. Since then, a growing consensus of the inadequacy of the life-plus-50 term to protect creators in an increasingly competitive global marketplace has lead to actions by several nations to increase the duration of copyright. Of particular importance is the 1993 directive issued by the European Union, which requires its member countries to implement a term of protection equal to the life of the author plus 70 years by July 1, 1995. According to the Copyright Office, all the states of the European Union have now brought their laws in compliance with the directive. And, as the Register of Copyrights has stated, those countries that are seeking to join the European Union, including Poland, Hungary, Turkey, the Czech Republic, and Bulgaria, are likely, as well, to amend their copyright laws to conform with the life-plus-70 standard. The reason this is of such importance to the United States is that the EU Directive also mandates the application of what is referred to as ``the rule of the shorter term.'' This rule may also be applied by adherents to the Berne Convention and the Universal Copyright Convention. In short, this rule permits those countries with longer copyright terms to limit protection of foreign works to the shorter term of protection granted in the country of origin. Thus, in those countries that adopt the longer term of life-plus-70, American works will forfeit 20 years of available protection and be protected instead for only the duration of the life-plus-50 term afforded under U.S. law. Mr. President, as I've said previously, America exports more copyrighted intellectual property than any country in the world, a huge percentage of it to nations of the European Union. In fact, in 1996, the core U.S. copyright industries achieved foreign sales and exports exceeding $60 billion, surpassing, for the first time, every other export sector, including automotive, agriculture and aircraft. And, according to 1996 estimates, copyright industries account for some 5.7 percent of the total gross domestic product. Furthermore, copyright industries are creating American jobs at nearly three times the rate of other industries, with the number of U.S. workers employed by core copyright industries more than doubling between 1977 and 1996. Today, these industries contribute more to the economy and employ more workers than any single manufacturing sector, accounting for over 5 percent of the total U.S. workforce. In fact, in 1996, the total copyright industries employed more workers than the four leading noncopyright manufacturing sectors combined. Clearly, Mr. President, America stands to lose a significant part of its international trading advantage if our copyright laws do not keep pace with emerging international standards. Given the mandated application of the ``rule of the shorter term'' under the EU Directive, American works will fall into the public domain 20 years before those of our European trading partners, undercutting our international trading position and depriving copyright owners of two decades of income they might otherwise have. Similar consequences will follow in those nations outside the EU that choose to exercise the ``rule of the shorter term'' under the Berne Convention and the Universal Copyright Convention. The public performance of musical works is one of the copyright rights that will be benefited by the 20-year extension. But-- ironically--in title II of the bill, Mr. President, we are cutting back on that right by expanding the exemption that currently exists in the Copyright Act for ``mom-and-pop'' establishments. Because of the public performance right, businesses that use music to attract customers are required to obtain a license. The licenses can be obtained from the performing rights organizations (PROs), namely, ASCAP, BMI, and SESAC. The PROs, in turn, pay the owners of copyright in the music--music publishers, composers, and/or songwriters--from the proceeds. Because the rates charged by the two biggest PROs, ASCAP and BMI, are monitored by the Rate Court of the U.S. District Court of the Southern District of New York, the rates today amount to a very small amount per annum per business. The rates are even smaller for the kinds of performances covered by title II of the bill--performances of music over television and radio sets that businesses turn on for the benefit of their customers. And, as I said, ``mom-and-pop'' establishments do not have to pay anything. Nevertheless, some have sought for over 3 years to eliminate the licensing of music that arrives in a business establishment through the reception of radio and TV signals. I have a stellar record in supporting legislation that benefits small business, but this includes songwriters, who themselves are small businesses. I have yet to discover a reason to eliminate or even reduce the charge for the commercial use of some one else's property. In my view, property is property whether it's dirt or intangible, and I have always been a defender of property rights. The associations that want to eliminate the public performance right for business establishments have held up passage of copyright term extension for more than three years, although they had no quarrel with copyright term extension on its merits. Since copyright term extension is so important to America, Mr. President, I began a series of negotiations last year to try to resolve the problem. Other negotiations were begun by others, and, in the end, a compromise was worked out. This compromise is included in title II of the bill. Title II greatly expands the current ``mom-and-pop'' exemption in the Copyright Act. Indeed, data supplied by the Congressional Research Service reveals that over 65.2% of restaurants will be exempt. But lest we think that the music licensing issue has been put to bed, I want to sound a note of caution. Despite the months of negotiations that produced title II, an unanticipated problem popped up just as a compromise was reached--the exemption contained in title II applies to radio broadcasts licensed by the FCC and does not cover Internet radio. We did not have time to address this problem, and, frankly, the novel nature of Internet radio precluded a simple solution. This issue concerns me, however, and I will turn to the music licensing question again in the future, if I see that a disparity exists between FCC- licensed radio and Internet radio. I would not want businesses to turn away from new technology because of artificial forces acting on the market. If we do turn to this question, we may discover that it is impossible to integrate Internet radio and TV into the exemption without modifying its scope. Nevertheless, Mr. President, on balance, S. 505 is a good bill. I'm glad it passed, and I'm glad that a compromise was worked out on music licensing to allow the copyright term to be extended. I thank all who had a hand in the solution.

Mr. HATCH

Mr. HATCH. I thank the Senator from Minnesota for his comments. This will be a top priority for the Committee next year. I intend to hold a hearing on database legislation and move for prompt consideration in the 106th Congress.

Mr. HATCH

Mr. HATCH. Mr. President, as we begin to wrap-up the 105th Congress, there remains one essential item of business which I strongly believe warrants Senate action before we adjourn for the year. Over the past year, numerous concerns have been raised by home health care agency officials and Medicare beneficiaries over the new Medicare payment system established in the Balanced Budget Act of 1997. As a strong home health care advocate in the Senate for virtually my entire career, I am well aware of the importance home health care is for Medicare beneficiaries with acute needs such as recovering from joint replacements and chronic conditions such as heart failure. Utahns have consistently told me they prefer to receive care in their homes rather than in institutional settings such as hospitals and nursing homes. In fact, patients actually do better in their recovery while at home than in a nursing home or hospital. And, clearly, the costs associated with home care are far less than what is charged in an institutional setting. As a member of the Finance Committee, which has jurisdiction over the Medicare program, I am also well aware of the impending financial crisis Medicare was facing last year. Home health care was the fastest growing component in Medicare. Between 1989 and 1996, Medicare spending for home health services rose from $2.5 billion to $16.8 billion. Concurrently, according to the GAO, the number of home health agencies grew from 5,700 in 1989 to more than 10,000 in 1997. Indeed, home health care spending threatened to consume more and more of the limited Medicare dollars. Last year, Congress was faced with an extraordinary and daunting task--namely, the financial survival of the Medicare program. No less than President Clinton's own advisors who serve as his appointed Trustees for the Medicare Trust Fund warned Congress that absent immediate action Medicare Part A would be insolvent by the year 2001. Clearly something had to be done. The status quo was unacceptable. To control the rapid cost growth in all components of Medicare, Congress passed the Balanced Budget Act of 1997, or the BBA, which required the Health Care Financing Administration (HCFA), the agency responsible for administering the Medicare program, to implement a Prospective Payment System that sets fixed, predetermined payments for home health services. Until that system could be developed and implemented, agencies would be paid through an Interim Payment System, or IPS, which imposes limits on agencies' cost-based payments. These limits were designed to provide incentives to control per visit costs and the number and mix of visits for each user. Since the implementation of the IPS on October 1, 1997, numerous concerns have been raised about severe equity issues in the payment limit levels. For instance, wide disparities exist in reimbursement levels ranging from $760 to $53,000 on average per beneficiary. The payment limits are further exacerbated by a major distinction in the payment rules between the so-called ``new'' verses ``old" agencies. The impact of the IPS has caused comparable home health agencies providing comparable home health services to receive very different reimbursement payments. The payment limit issues are further exacerbated by the imposition of a 15% across the board cut in payment rates which is scheduled to take effect in October 1999. According to a September 1998 report from the General Accounting Office, at least 12 home health agencies in my state of Utah have been forced to close their doors since the implementation of the IPS. This leaves just 75 agencies to serve the entire estimated home health care population of 22,000 home health beneficiaries throughout my state. And, I note for my colleagues who have not had the pleasure of visiting Utah, with its spectacular vistas and magnificent mountains, essentially is a rural state with population centers far apart. So if you live in Panguitch or Vernal, and your home health agency closes its doors, you will be very lucky if there is any other service option available. Home health care is particularly vital in improving efforts to deliver health care in rural areas where quality, long term care has been deficient for too long. As my colleagues recall last year, there was no disagreement on the need to move to the PPS. The home health care industry was supportive of the new system--and remains supportive to this day. The problem is with moving to the PPS from the current cost-based payment system. Data which was not available to accurately develop the PPS would be needed before such a system could be put into place. Accordingly, the IPS was proposed as a mechanism to provide HCFA was the necessary baseline information to develop the PPS. As we now know, the IPS has resulted in new cost limits causing many home health agencies to close and resulted in beneficiaries, particularly those with high-cost needs, to have difficulty in obtaining care. I am especially mindful of the situation in my state of Utah where many of my constituents have talked to me about the problem. I have met with officials from Utah's home health agencies from around the state as well as with beneficiaries who depend on the services performed by these agencies. Moreover, the Senate Small Business Committee held a hearing on July 15, 1998 on the impact of the IPS on small home health businesses. One of my constituents, Mr. Marty Hoelscher, CEO of Superior Home Care in Salt Lake City testified at the hearing. He stated: The IPS provides a flat payment to agencies for each patient, regardless of the amount of care the patient medically requires. What happens to the really sick patients? What happens to the agencies who don't turn their backs on them? In Utah, the patients of the 18 free standing agencies which have recently ceased operations are filling our emergency rooms, intensive care units, nursing homes or morgues. I have been working concertedly with my Senate colleagues to resolve these problems. For example, in July, I joined with 20 of my colleagues in the Senate on July 16, 1998 to cosponsor S. 2323, the ``Home Health Access Preservation Act of 1998.'' This legislation was designed to alleviate the problems created by the IPS, and specifically, to address the problems associated with the high costs of caring for the sickest patients and those who need care on a long term basis. After Senator Grassley introduced S. 2323, it became evident that the budget neutrality provision--which necessitated that S. 2323 incur no new spending--was requiring us to reallocate resources in a way that disadvantaged some home health providers in order to assist others. Many members expressed concerns that because of the problems inherent in such a reallocation, we should just repeal the IPS totally. I was extremely sympathetic to those concerns, but unfortunately, the Congressional Budget Office advised us that such a repeal was very costly; in fact, it was so costly that a total repeal was clearly out of question if we are to maintain the balanced budget which is so important to our country. I am pleased that as a result of several months work by the Chairman and ranking minority member of the Finance Committee, Senator Roth and Senator Moynihan along with those of us on the committee have developed this bipartisan proposal which is supported by the home health industry. The legislation we are introducing today, while not a perfect measure, is a responsible bill that will improve problems inherent in the current law and which will work to the benefit of thousands of Americans who rely on very valuable home health care services. Under this legislation, several steps will be taken to improve the IPS. First, the bill will reduce the extreme variations in payment limits applicable to old agencies within states and across state lines. The bill also provides for a reduction in the payment level differences between ``old'' and ``new'' agencies. Such provider distinctions exist nowhere else in the Medicare system and contribute to the arbitrary nature of the payment system for health care services. Moreover, the bill delays for one year the 15% across the board cut in payment limits for all agencies that was to take effect in October 1999. Home health agencies in my state tell me this is perhaps the most significant and important feature of the bill. The bill further directs the Health Care Financing Administration to take all feasible steps necessary to minimize the delay in the implementation of the PPS. Specifically, HCFA will be required to accelerate data collection efforts necessary to develop the case-mix system which is at the heart of the PPS model. Mr. President, I am pleased to add my name as an original cosponsor to this vitally needed legislation. As we are all too painfully aware, our budget rules require that any legislation such as this which proposes ``new'' Medicare spending be accompanied by a reduction in spending to offset the costs. While I understand the need to maintain budget neutrality, I am concerned about the offsets in the Roth bill, but I am pleased Senator Roth has agreed to consider other offsets in order to address my concerns. We cannot move forward without an offset since the Congressional Budget Office has scored the bill at a cost of $1 billion. With the assurance that I now have received from the Chairman of the Finance Committee, I am lending my support to this important bill. Our overriding objective at this late time with only hours left in the 105th Congress is to get this bill passed by the Senate and into conference with the House. I am pleased that the House approved its version of the legislation just moments ago, and while the House legislation is not the measure I would want, its passage does move us substantially closer toward enactment of a final bill prior to adjournment. I can assure my constituents in Utah who depend on home health care services that I will continue to pursue legislative resolution of these financing issues to preserve the home health care benefit for all Medicare beneficiaries. And finally, let me also assure the dedicated and hard working people of Utah who provide home health care services that I will continue to work with them to bring some logic to the new Medicare payment system. I especially want to thank Marty Hoelscher, Steve Hansen, Grant Howarth, Vaughn McDonald, Dee Bangerter and the many others in Utah, especially the Utah Association of Home Health Agencies, for their counsel and leadership over the past year in working on this very complex issue. Mr. KERRY addressed the Chair.

Mr. HATCH

Mr. HATCH. Mr. President, I suggest the absence of a quorum.

Mr. HATCH

Mr. HATCH. Mr. President, I am pleased to note the passage of H.R. 3494, the Hatch-Leahy-DeWine ``Protection of Children from Sexual Predators Act of 1998.'' I want to thank Senators Leahy and DeWine for their cooperation in drafting and advocating the passage of this important piece of legislation. I also want to commend Congressman McCollum for his determined efforts in marshaling H.R. 3494 through the House. Although it was necessary to make some changes to the House version in an effort to achieve bipartisan support in the Senate, the final product is a strong bill which goes a long way toward improving the ability of law enforcement and the courts to respond to high-tech sexual predators of children. Pedophiles who roam the Internet, purveyors of child pornography, and serial child molesters are specifically targeted. The Internet is a wonderful creation. By allowing for instant communication around the globe, it has made the world a smaller place, a place in which people can express their thoughts and ideas without limitation. It has released the creative energies of a new generation of entrepreneurs and it is an unparalleled source of information. While we should encourage people to take full advantage of the opportunities the Internet has to offer, we must also be vigilant in seeking to ensure that the Internet is not perverted into a hunting ground for pedophiles and other sexual predators, and a drive-through library and post office for purveyors of child pornography. Our children must be protected from those who would choose to sexually abuse and exploit them. And those who take the path of predation should know that the consequences of their actions will be severe and unforgiving. How does this bill provide additional protection for our children? By prohibiting the libidinous dissemination on the Internet of information related to minors and the sending of obscene material to minors, we make it more difficult for sexual predators to gather information on, and lower the sexual inhibitions of, potential targets. By prohibiting to possession of even one item or image containing child pornography, we are stating in no uncertain terms that we have ``zero tolerance'' for the sexual exploitation of children. And by requiring electronic communication service providers to report the commission of child pornography offenses to authorities, we mandate accountability and responsibility on the Internet. Additionally, law enforcement is given effective tools to pursue sexual predators. The Attorney General is provided with authority to issue administrative subpoenas in child pornography cases. Proceeds derived from these offenses, and the facilities and instrumentalities used to perpetuate these offenses, will be subject to forfeiture. And prosecutors will not have the power to seek pretrial detention of sexual predators prior to trial. Federal law enforcement will be given increased statutory authority to assist the States in kidnapping and serial murder investigations, which often involve children. In that vein, H.R. 3494 calls for the creation of the Morgan P. Hardiman Child Abduction and Serial Murder Investigative Resources Center. That center will gather information, expertise and resources that our nation's law enforcement agencies can draw upon to help combat these heinous crimes. Sentences for child abuse and exploitation offenses will be made tougher. In addition to increasing the maximum penalties available for many crimes against children and mandating tough sentences for repeat offenders, the bill will also recommend that the Sentencing Commission reevaluate the guidelines applicable to these offenses, and increase them where appropriate to address the egregiousness of these crimes. And H.R. 3494 calls for life imprisonment in appropriate cases where certain crimes result in the death of children. Protection of our children is not a partisan issue. We have drawn upon the collective wisdom of the House as well as from Senators on both sides of the aisle to draft a bill which includes strong, effective legislation protecting children. Once again, I urge the House to act quickly to pass this bill so that we can get it to the President for his signature this session. Protection for our children delayed is protection denied.

Mr. HATCH

Mr. HATCH. Mr. President, I would like to make a few very brief remarks about our inability to get a time agreement on the flag amendment, and respond to the assertion that it is somehow inappropriate to debate this important issue at this time. I think it is entirely appropriate that we debate the constitutional amendment to protect our flag at this time in the year. There is no better time than the present to discuss the values the flag represents: the unity and common values of all Americans. The flag amendment should, like the flag itself, unite us. And it does unite Americans of both parties. This amendment is cosponsored by 61 Members of the Senate, Republicans and Democrats. Senator Cleland, a war hero, who has sacrificed much, and who is a Democrat, is the primary cosponsor. And ultimately, all we supporters of the amendment are asking for is a chance to let the American people decide whether to protect the flag by debating the amendment in ratification debates in each of the State legislatures. And the people clearly want the flag amendment. Forty- nine State legislatures have called for the flag amendment. And polling has consistently shown that more than three-quarters of the American people have consistently supported a flag amendment over the years since the Supreme Court's fateful decision in Texas versus Johnson in 1989. Mr. President, I believe this legislation not only is vital to protect our shared values as Americans, but this debate is also timely today as we all strive to recover what is good and decent about our country. Mr. President, we see evidence of moral decay and a lack of standards all around us. Behavior that was once found to be shameful is now routinely excused because ``everybody does it.'' Our popular culture, including movies and television, bombard us with messages of gratuitous sex and violence. Even sports figures too often set a terrible example for the young people that follow their every move. And yet here today we have a unique opportunity to do something uplifting, something decent, something that will make our country proud. We have an opportunity to say to a few exhibitionists and anarchists that in pursuit of your fifteen minutes of fame, you may not deface the most sacred embodiment of the virtues of our country. You may not dishonor the memory of those millions of men and women who have given their lives for America. You may not yet again lower standards of elemental decency that all of must and should live by. Today, we will say that our flag, the embodiment of so many of our hopes and dreams, can no longer be dragged through the mud, torn asunder, or defecated on. Can anyone think of a better message to send to our citizens and to our young people than to begin to reclaim appropriate standards of behavior for everyone in this country? Mr. President, there will be those who will decry this discussion as a distraction from ``real'' and ``important'' matters of taxes and budgets and regulation and other Federal programs. These issues are important and the Congress must deal with them. But that should not obscure our inattention to the ``values deficit'' that exists in public life today. We need more public conversation about values and standards. We must take every opportunity to set the right behavioral standards for our children, lest we become a nation of cynics who snicker every time someone tries to reinstill virtue into public life. And so, Mr. President, not only is this discussion appropriate today, but it is critical. I can think of no more important conversation we can have in America than how we use American liberty to promote public virtue. Protecting the American flag from physical desecration is a small but important way to begin this important debate. Now, having said all that, I am disappointed that opponents of the flag amendment have rejected a reasonable time agreement, without even offering an alternative time agreement. I would be interested to know what would be acceptable. Finally, if it should be the case that we are not going to debate the flag amendment this year, and that is how it appears, I believe we should bring it up early in the new Congress, and debate and vote on it at the earliest opportunity next year. I want my colleagues to know that I will be back next year and I will trust that this important matter will be acted on early in the next session. The American people want the opportunity to debate the flag amendment in the States, and I believe we should listen to the people on this.

Mr. HATCH

Mr. HATCH. Mr. President, let me share with my colleagues some of what Ms. Cornwell, who has spent the better part of her adult life studying and observing crime and its effects, has to say. She says ``when a person is touched by violence, the fabric of civility is forever rent, or ripped, or breached * * *.'' This a graphic but accurate description. Countless lives can be ruined by a single violent crime. There is, of course, the victim, who may be dead, or scarred for life. There are the family and friends of the victim, who are traumatized as well, and who must live with the loss of a loved one. Society itself is harmed, when each of us is a little more frightened to walk on our streets at night, to use an ATM, or to jog or bike in our parks. And, yes, there is the offender who has chosen to throw his or her life away. Particularly when the offender is a juvenile, family, friends, and society are made poorer for the waste of potential in every human being. One crime, but permanent effects when ``the fabric of civility is rent.'' This is the reality that has driven me to work even up to the closing hours of the session to address this issue. For nearly a year, the Senate has had before it comprehensive youth violence legislation. S. 10, the Hatch-Sessions Violent and Repeat Juvenile Offender Act, was reported out of the Judiciary Committee last year on bipartisan vote, two to one vote. This legislation would have fundamentally reformed the role played by the federal government in addressing juvenile crime in our Nation. It was supported by law enforcement organizations such as the Fraternal Order of Police, the National Sheriffs Association, and the National Troopers Coalition, as well as the support of juvenile justice practitioners such as the National Council of Juvenile and Family Court Judges, and victim's groups including the National Victims Center and the National Organization for Victims Assistance. S. 10 was reported on a bipartisan, two to one vote. Indeed, among members of the Youth Violence Subcommittee, the vote was seven to two in favor of the bill. Our reform proposal included the best of what we know works. It combined tough measures to protect the public from the worst juvenile criminals, smart measures to provide intervention and correction at the earliest acts of delinquency, and compassionate measures to supplement and enhance extensive existing prevention programs to keep juveniles out of the cycle of crime, violence, drugs, and gangs. All too often, the juvenile justice system ignores the minor crimes that lead to the increasingly frequent serious and tragic juvenile crimes capturing headlines. Unfortunately, many of these crimes might have been prevented had the warning signs of early acts of delinquency or antisocial behavior been heeded. A delinquent juvenile's critical first brush with the law is a vital aspect of preventing future crimes, because it teaches an important lesson--what behavior will be tolerated. According to a recent Department of Justice study, juveniles adjudicated for so-called index crimes--such as murder, rape, robbery, assault, burglary, and auto threft--began their criminal careers at an early age. The average age for a juvenile committing an index offense is 14.5 years, and typically, by age 7, the future criminal is already showing minor behavior problems. If we can intervene early enough, however, we might avert future tragedies. That is why we seek to reform federal policy that has been complicit in the system's failure, and provide states with much needed funding for a system of graduated sanctions, including community service for minor crimes, electronically monitored home detention, boot camps, and traditional detention for more serious offenses. And let there be no mistake--detention is needed as well. As Ms. Cornwell recently wrote, ``our first priority should be to keep our communities safe. We must remove violent people from our midst, no matter their age. . . . When the trigger is pulled, when the knife is plunged, kids aren't kids anymore. We should not shield and give excuses and probation to violent juveniles who, odds are, will harm or kill again if they are returned to our neighborhoods and schools.'' I couldn't have said it any better. Meaningful reform also requires that juvenile's criminal record ought to be accessible to police, courts, and prosecutors, so that we can know who is a repeat or serious offender. Right now, these records simply are not available in NCIC, the national system that tracks adult criminal records. Ms. Cornwell again cogently explains what this means: ``If a juvenile commits a felony in Virginia, when he turns 18 his record is not expunged and will follow him for the rest of his days. But were he to commit the same felony in North Carolina, at 16 he'll be released from a correctional facility with no record of any crime he committed in that state. Let's say he's back on the street and returns to Virginia. Now he's a juvenile again, and police, prosecutors, judges or juries will never know what he did in North Carolina. If he moves to yet another state where the legal age is 21, he can commit felonies for three or four more years and have no record of them, either. Maybe by then, he's committed fifteen felonies but is only credited with the one he committed in Virginia. Maybe when he becomes an adult and is violent again, he gets a light sentence or even probation, since it appears he's committed only one felony in his life instead of fifteen. He'll be back among us soon enough. Maybe his next victim will be you.'' So the reform we sought also provides the first federal incentives for the integration of serious juvenile criminal records into the national criminal history database, together with federal funding for the system. Mr. President, I believe that we all agree that it is far better to prevent the fabric of civility from being rent than to deal with the aftermath of juvenile crime. I have been involved in this fight for over three years now. Rarely have I found an issue over which interest group opponents were more determined to block needed reforms through distortions of the record. In no small measure, in my view, this harmful posturing has brought us to where we are today--just short of achieving important reform legislation. I believe that we must look to the greater good, and limit--in the interests of our children and public safety--the posturing which too often infects criminal justice issues. Let me take just a moment to acknowledge the efforts of members on both sides of the aisle who have worked in good faith to try and address this issue in a responsible manner. Senator Leahy and Senator Biden deserve enormous credit. And I want to particularly thank Senator Sessions, the Chairman of our Youth Violence Subcommittee for his many months of determined work. We will be back on this issue next Congress. It will not go away, any more than the problem will go away until we address it. So, I will be urging the Majority Leader, when he sets our agenda for next year, to make enacting a responsible juvenile crime bill among our top legislative priorities in the 106th Congress. Mr. President, I thank my colleagues and yield the floor. Exhibit 1 When the Fabric Is Rent (By Patricia Cornwell) There was a saying in the morgue during those long six years I worked there. When a person is touched by violence, the fabric of civility is forever rent, or ripped or breached, whatever word is most graphic to you. Our country is the most violent one in the free world, and as far as I'm concerned, we are becoming increasingly incompetent in preventing and prosecuting cruel crimes that we foolishly think happen only to others. There was another saying in the morgue. The one thing every dead person had in common in that place was he never thought he'd end up there. He never imagined his name would be penned in black ink in the big black book that is ominously omnipresent on a counter top in the autopsy suite. I have seen hundreds, maybe close to a thousand dead bodies by now, many of them ruined by another person's hands. I return to the morgue at least two or three times a year to painfully remind myself that what I'm writing about is awful and final and real. I suffer from nightmares and don't remember the last time I had a pleasant dream. I have very strong emotional responses to crimes that have nothing to do with me, such as Versace's murder, and more recently, the random shooting deaths of Capitol Police Agent John Gibson and Officer Jacob Chestnut. I can't read sad, scary or violent books. I watched only half of Titanic because I cold not bear its sadness. I stormed out of Ann Rice's Interview With A Vampire, so furious my hands were shaking because the movie is such an outrageous trivialization and celebration of sexual violence. For me the suffering, the blood, the deaths are real. I'd like to confront Ann Rice with bitemarks and other sadistic wounds that are not special effects. I'd like to sentence Oliver Stone to a month in the morgue, make him sit in the cooler for a while and see what an audience of victims has to say about his films. I'd like O.J. Simpson to have a total recall and suffer, go broke, be ostracized, never allowed on a golf course again. I was in a pub in London when that verdict was read. I'll never forget the amazed faces of a suddenly mute group of beer-drinking Brits, or the shame of my friends and I felt because in America it is absolutely true. Justice is blind. Justice has stumbled off the rod of truth and fallen headlong into a thicket of subjective verdicts where evidence doesn't count and plea bargains that are such a bargain they are fire sales. I've begun to fear that the consequences and punishment of violent crime have become some sort of mindless multiple choice, a Let's Make A Deal, a Let's microwave the popcorn and watch Court TV. I have been asked to tell you what my fictional character Dr. Scarpetta would do if she were the crime czar or Virginia, of America. Since she and I share the same opinions and views, I am stepping out from behind my curtain of imagined deeds and characters and telling you what I feel and think. It startles me to realize that at age 42, I have spent almost half my life studying crime, of living and working in it's pitifully cold, smelly, ugly environment. I am often asked why people cheat, rob, stalk, slander, main and murder. How can anybody enjoy causing another human being or any living creature destruction and pain? I will tell you in three words: Abuse of power. Everything in life is about the power we appropriate for good or destruction, and the ultimate overpowering of a life is to make it suffer and end. This includes children who put on camouflage and get into the family guns. We don't want to believe that 12, 13, 16 year old youths are unredeemable. Most of them aren't. But it's time we face that some of them have transgressed beyond forgiveness, certainly beyond trust. Not all victims I have seen pass through the morgue were savaged by adults. The creative cruelty of some young killers is the worst of the worst, images of what they did to their victims ones I wish I could delete. About a year ago, I began researching juvenile crime for the follow-up of Hornet's Nest (Southern Cross, January, '99) and my tenth Scarpetta book (unfinished and untitled yet). This was a territory I had yet to explore. I was inspired by the depressing fact that in the last ten years, shootings, hold-ups at ATM's, and premeditated murders committed by juveniles have risen 160 percent. As I ventured into my eleventh and twelfth novels, I wondered what my crusading characters would do with violent children. So I spent months in Raleigh watching members of the Governor's Commission on Juvenile Crime and Justice debate and rewrite their juvenile crime laws, as Virginia did in 1995 under the leadership of Jim Gilmore. I quizzed Senator Orrin Hatch about his youth violence bill, S. 10, a federal approach to reforming a juvenile justice system that is failing our society. I toured detention homes in Richmond and elsewhere. I sat in on juvenile court cases and talked to inmates who were juveniles when they began their lives of crime. While it is true that many violent juveniles have abuse, neglect, and the absence of values in their homes, I maintain my belief that all people should be held accountable for their actions. Our first priority should be to keep our communities safe. We must remove violent people from our midst, no matter their age. As Marcia Morey, executive director of North Carolina's juvenile crime commission, constantly preaches, ``We must stop the hemorrhage first.'' When the trigger is pulled, when the knife is plunged, kids aren't kids anymore. We should not shield and give excuses and probation to violent juveniles who, odds are, will harm or kill again if they are returned to our neighborhoods and schools. We should not treat young violent offenders with sealed lips and exclusive proceedings. ``The secrecy and confidentiality of our system have hurt us,'' says Richmond Juvenile and Domestic Relations District Court Judge Kimberly O'Donnell. ``What people can't see and hear is often difficult for them to understand.'' Virginia has opened its courtrooms to the public, and Judge O'Donnell encourages people to sit in hers and see for themselves those juveniles who are remorseless and those who can be saved. Most juveniles who end up in court are not repeat offenders. But for that small number who threaten us most, I advocate hard, non-negotiable judgement. Most of what I would like to see is already being done in Virginia. But we need juvenile justice reform nationally, a system that is sensible and consistent from state to state. As it is now, if a juvenile commits a felony in Virginia, when he turns 18 his record is not expunged and will follow him for the rest of his days. But were he to commit the same felony in North Carolina, at 16 he'll be released from a correctional facility with no record of any crime he committed in that state. Let's say he's back on the street and returns to Virginia. Now he's a juvenile again, and police, prosecutors, judges or juries will never know what he did in North Carolina. If he moves to yet another state where the legal age is 21, he can commit felonies for three or four more years and have no record of them, either. Maybe by then he's committed fifteen felonies but is only credited with the one he committed in Virginia. Maybe when he becomes an adult and is violent again, he gets a light sentence or even probation, since it appears he's committed only one felony in his life instead of fifteen. He'll be back among us soon enough. Maybe his next victim will be you. If national juvenile justice reform were up to me, I'd be strict. I would not be popular with extreme child advocates. If I had my way, it would be routine that when any juvenile commits a violent crime, his name and personal life are publicized. Records of juveniles who commit felonies should not be expunged when the individual becomes an adult. Mug shots, fingerprints and the DNA of violent juveniles should, at the very least, be available to police, prosecutors, and schools, and if the young violent offender has an extensive record and commits another crime, plea bargaining should be limited or at least informed. Juveniles who rape, murder or commit other heinous acts should be tried as adults, but judges should have the discretionary power to decide when this is merited. I want to see more court-ordered restitution and mediation. Let's turn off the TV's in correctional centers and force assailants, robbers, thieves to work to pay back what they've destroyed and taken, as much as that is possible. Confront them with their victims, face to face. Perhaps a juvenile might realize the awful deed he's done if his victim is suddenly a person with feelings, loved ones, scars, a name. Prevention is a more popular word than punishment. But the solution to what's happening in our society, particularly to our youths, is simpler and infinitely harder than any federally or private funded program. All of us live in neighborhoods. Unless you are in solitary confinement or a coma, you are aware of others around you. Quite likely you are exposed to children who are sad, lost, ignored, neglected or abused. Try to help. Do it in person. I remember my first few years in Richmond when I was living at Union Theological Seminary, where my former husband was a student and I was a struggling, somewhat failed writer. Charlie and I spent five years in a seminary apartment complex where there was a little boy who enjoyed throwing a tennis ball against the building in a staccato that was torture to me. I was working on novels nobody wanted and every time that ball thunked against brick, I lost my train of thought. I'd popped out of my chair and fly outside to order the kid to stop, but somehow he was always gone without a trace, silence restored for an hour or two. One day I caught him. I was about to reprimand him when I saw the fear and loneliness in his eyes. ``What's your name?'' I asked. ``Eddie,'' he said. ``How old are you?'' ``Ten.'' ``It's not a good idea to throw a ball against the building. It makes it hard for some of us to work.'' ``I know.'' He shrugged. ``If you know, then why do you do it?'' ``Because I have no one to play catch with me,'' he replied. My memory lit up with acts of kindness when I was a lonely child living in the small town of Montreat, North Carolina. Adult neighbors had taken time to play tennis with me. They had invited me, the only girl in town, to play baseball or touch football with the boys. Billy Graham's wife, Ruth, used to stop her car to see how I was or if I needed a ride somewhere. Years later, she befriended me when I was a very confused teenager who felt rather worthless. Were it not for her kindness and encouragement, I doubt I would be writing this editorial. Maybe I wouldn't have amounted to much. Maybe I would have gotten into serious trouble. Maybe I'd be dead. Eddie and I started playing catch. I gave him tennis lessons and probably ruined his backhand for life. He told me all about himself and amused me with his stories. We became pals. He never threw a tennis ball against the building again. We must protect ourselves from all people who have proven to be dangerous. But we should never abandon those who can be helped or are at least are worthy of the effort. If you save or change one life, you have added something priceless to this world. You have left it better than you found it.

Mr. HATCH. Mr. President, I would like to briefly discuss an issue of great importance to the Senate and the nation--juvenile crime. Over the past weeks, we have been working hard to try to reach consensus on comprehensive legislation to address juvenile crime in our nation. I am disappointed to report to my colleagues that we have fallen short in that effort. The sad reality is that we can no longer sit silently by as children kill children, as teenagers commit truly heinous offenses, as our juvenile drug abuse rate continues to climb. In 1996, juveniles accounted for nearly one fifth--19 percent--of all criminal arrests in the United states. Persons under 18 committed 15 percent of all murders, 17 percent of all rapes, and 32.1 percent of all robberies. And although there are endless statistics on our growing juvenile crime problem, one particularly sobering fact is that, between 1985 and 1993, the number of murder cases involving 15-year olds increased 207 percent. We have kids involved in murder before they can even drive. In short, our juvenile crime problem has taken a new and sinister direction. But cold statistics alone cannot tell the whole story. Crime has real effect on the lives of real people. Recently, I read an article in the Richmond Times-Dispatch by my good friend, crime novelist Patricia Cornwell. It is one of the finest pieces I have read on the effects of and solutions to our juvenile crime problem, and I ask unanimous consent that it be printed in the Record following my remarks.

Mr. HATCH

Mr. HATCH. Mr. President, I would like to take just a moment to note the departure later this month of my Administrative Assistant, Robert Dibblee. Robert has served as my chief of staff for four years. He previously served a number of years with our former colleague, Senator Jake Garn. He has been my right-hand man, not only in running my office -- running my life actually--but also on key land policy issues affecting Utah. I have really come to rely on him for advice and counsel as well as for accomplishing the myriad of tasks that face a Senate office. I want to use this public forum to recognize and thank Robert for his tireless efforts behind the scenes to keep the Utah Schools and Lands Exchange Act, just passed by the Senate, on track. From the day he arrived on my staff in 1993, I knew he would make my priority his own. I should mention that the first iteration of this legislation was my bill, S. 184, introduced during the 103rd Congress. The bill was enacted into law; but, unfortunately, the required land appraisals were never carried out by the Interior Department. And, the presidential designation of the Grand Staircase-Escalante National Monument in 1996 doubled the number of acres of trust land that needed to be offset or compensated. Robert has worked practically on a daily basis on this issue with the Utah governor's office, the Interior Department, members and staff of the Senate Energy Committee, and with the staff of my colleagues in the Utah delegation, particularly Congressman Jim Hansen, without whose assistance as chairman of the House Resources Subcommittee we could not have passed the bill today. During this final week, Robert worked to break several logjams that could have sunk this legislation. Throughout the consideration of this bill, he has been a steady and reliable guide for this all-important bill to support education in Utah. Robert is moving on to be Vice President for Government Relations for the National Association of Independent Insurers. So, I say to my colleagues who do not yet know him: you will. And, you will appreciate working with him as much as I have. Robert Dibblee is a stand-up guy who does what is right and honorable; he won't try to pull the wool over your eyes; and he follows through on his commitments. I will miss having him as an integral part of my team, but I wish him well in this new, challenging assignment.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce the ``Controlled Substances Civil Penalty Reform Act of 1998,'' S. 2600, legislation I have been developing for some months working in conjunction with Senator Gregg and the Appropriations Committee, our House colleague, Bill McCollum, and other interested parties including the Drug Enforcement Administration, the National Association of Chain Drug Stores, and the National Wholesale Druggists Association. This is a ``good government'' bill, legislation which I intend to correct a situation which has proven to be of great concern to America's drug stores, the wholesale community which supplies them, and America's consumers. As a House hearing amply documented last month, there have been a number of cases in which the Drug Enforcement Administration has imposed large fines for small, record-keeping errors committed by those the agency regulates, primarily drug stores and their suppliers. The DEA has a critical mission to combat diversion of controlled substances. This is of great national significance, and the agency should zealously pursue to the limits of the law those who traffic in illicit drugs. That being said, there is a difference between going after drug dealers and examining the records kept by legitimate wholesalers and pharmacies. Overzealously throwing the book at above-board businesses, who are doing so much to help America's consumers, for relatively minor record-keeping violations is not warranted. In 1997, these fines, which may be assessed at up to $25,000 per violation, totaled a substantial $12 million. But given the nature of some of the minor deficiencies, which I am advised are sometimes for trivial matters such as incorrect zip codes, the question must be raised whether this particular enforcement activity is operating more life a hidden tax or user fees than a meaningful deterrent to drug diversion. In short, S. 2600 amends the Controlled Substances Act in three important ways. First, it adds a negligence standard to current law, so that the government must prove that the record-keeping violation was due to a negligent act, rather than an unintended mistake or omission, prior to any fines being imposed. Second, it lowers the ceiling on these fines from ``up to $25,000'' per violation, to ``up to $10,000'' per violation. The third provision adds a number of needed standards that the Attorney General must consider before any fine is imposed. These include: whether diversion actually occurred; whether actual harm to the public resulted from the diversion; whether the violations were intentional or negligent in nature; whether the violations were a first time offense; the time intervals between inspections where no, or any serious, violations were found; whether the violations were multiple occurrences of the same type of violation; whether and to what extent financial profits may have resulted from the diversion; and the financial capacity of registrants to pay the fines assessed. Finally, my proposal makes clear that in determining whether to assess a penalty, the Attorney General may take into account whether the violator has taken immediate and effective corrective action, including demonstrating the existence of compliance procedures, in order to reduce the potential for any future violations. The Attorney General may also follow informal procedures such as sending one or more warning letters to the violator, as she determines appropriate. Mr. President, I recognize that our time is short for the remainder of this session. However, given Senator Gregg's significant interest in this issue, and the abundant work that Representative McCollum and I have devoted to this issue this year, I am hopeful this needed reform is something we can accomplish before we adjourn.

Mr. HATCH

Mr. HATCH. Mr. President, I move to reconsider the vote.