Orrin Hatch

Mr. HATCH

Mr. HATCH. Mr. President, modern computer imaging and morphing technology has made possible the production of pornographic depictions of minors which are virtually indistinguishable to the unsuspecting viewer from unretouched photographs of actual children engaging in sexually explicit conduct. Such computer generated child pornography has many of the same harmful effects, and thus poses the same threat to the physical and mental health, safety and well-being of our children and of our society as pornographic material produced using actual children. However, because current Federal law pertaining to the sexual exploitation of children and the production, distribution, possession, sale, or transportation of child pornography is limited to material produced using actual children engaging in sexually explicit conduct, computer generated child pornography is presently outside the scope of Federal law. The omnibus bill includes the Child Pornography Prevention Act of 1996. This act will close this computer generated loophole and give our law enforcement authorities the tools they need to protect our children by stemming the increasing flow of high-technology child pornography. The Child Pornography Prevention Act, as introduced, as S. 1237, addresses the problem of ``high-tech kiddie porn'' by creating a comprehensive statutory definition of the term ``child pornography'' to include visual depictions of sexually explicit conduct: First, produced using children engaging in sexually explicit conduct; Second, computer generated depictions which are, or appear to be, of minors engaging in sexually explicit conduct; or Third, materials advertised, described, or otherwise presented as a visual depiction of a minor engaging in sexually explicit conduct. The act establishes a new section in U.S. Code Title 18, Sec. 2252A, prohibiting the distribution, possession, receipt, reproduction, sale, or transportation of child pornography. The act contains congressional findings as to the harmful effects of child pornography and the threat to the physical and mental health, safety, and well-being of children and society posed by child pornography, both computer generated depictions and depictions produced using actual children. The act also increases the penalties for child sexual exploitation and child pornography offenses. At the Judiciary Committee markup of S. 1237, Senator Biden expressed concern that the bill, as introduced, may not be upheld by the courts. Specifically, Senator Biden was concerned as to the constitutionality of the provision in the bill's definition section that classifies as child pornography a visual depiction which appears to be of a minor engaging in sexually explicit conduct, even if no actual child was involved in its production. In New York v. Ferber, 458 U.S. 747 (1982), the Supreme Court, while upholding prohibitions on child pornography, not otherwise obscene, where the pornography included actual minors, noted that ``distribution of descriptions or other depictions of sexual conduct, not otherwise obscene, which do not involve live performance or photographic or other visual reproduction of live performances, retains First Amendment protection.'' Senator Biden, and some others, worried that, to the extent the bill reached both child pornography that is within Ferber's four corners, i.e., material produced utilizing actual minors, and visual depictions of those who merely appear to be minors--through the use of computer ``morphing,'' for example--it could be struck down. In light of this concern, Senator Biden wanted to include in the bill a separate section expressly covering pornography involving identifiable minors, so that if the broader appears to be provision is struck down, coverage of identifiable minor child pornography will survive. I am confident that the Child Pornography Prevention Act's prohibition on computer-generated visual depictions which appear to be of a child engaging in sexually explicit conduct would be found constitutional, a view shared by the Department of Justice and other legal experts in this field, and the definition of child pornography contained in this legislation would be upheld by the courts in its entirety. I believe the Supreme Court, in light of technological advances since the Ferber decision and the record Congress has established with respect to the harmful effects of computer-generated material which appears to be of a child engaging in sexually explicit conduct, including the use of such material to seduce children for sexual abuse and exploitation, will find it constitutional. At the same time, I agree that it would be reasonable to include in the act a fall-back provision specifically covering only identifiable minor material. Since this type of material involves a depiction of, and is therefore likely to result in harm to, a real child, i.e., the child being depicted, such a provision is indisputably constitutional under Ferber and would provide an enforceable weapon against at least some computer-generated child pornography in the event that the act's broader prohibition on computer-generated material which appears to be of a child engaging in sexually explicit conduct is overturned by the courts. Despite concerns about the method proposed by Senator Biden to address the problem of identifiable minor pornographic material, I agreed at the markup to accept his amendment, with the understanding that we would work together to improve the way we are achieving his objective. Senator Biden's amendment added to S. 1237 another new statutory section, as 18 U.S.C. Sec. 2252B, which is directed at one particular type of computer-created or generated images--visual depictions which have been created, adapted or modified to make it appear that an identifiable minor was engaged in sexually explicit conduct. The term identifiable minor was defined to mean a minor who is capable of being recognized as an actual person by, for example, his face or other distinguishing feature or physical characteristic, although a prosecutor would not be required to prove the minor's actual identity. Section 2252B duplicated, with respect to identifiable minor material, the prohibitions and penalties established under Sec. 2252A for the distribution, possession, receipt, sale or transportation of material which would be classified as child pornography under this bill. The bill, as modified in the Judiciary Committee, however, did not expressly include identifiable minor material in the statutory definition of ``child pornography,'' although such material could be classified as child pornography under the definition's ``appears to be'' language. I agreed with the goal of Senator Biden's amendment. Visual depictions of a minor engaging in sexually explicit conduct can haunt that person for his or her entire life. In addition, there is the threat that a child molester or pedophile could take pictures of a child he finds sexually desirable and then produce pornographic depictions featuring that child engaging in sexual conduct--depictions which he can use to stimulate his own sexual appetites, sell or distribute to others, or use in an effort to seduce that child or others into submitting to sexual exploitation. The threat posed by, and the harm resulting from, visual depictions of identifiable minors which have been created or altered so as to make it appear that the minor is engaging in sexually explicit conduct is sufficiently distinct and serious to warrant inclusion in the act of language specifically addressing this type of material. My concern regarding the Biden amendment was directed solely at the method used to achieve the goal of prohibiting pornographic material which uses the image or depiction of an identifiable minor as a clearly separate offense. It was, in my view, unnecessarily duplicative to enact two virtually identical statutory sections, 2252A and 2252B, to deal with computer created or generated child pornography, as the committee-passed bill with Senator Biden's amendment did. Further, it was inconsistent and potentially very confusing specifically to address identifiable minor pornographic material in the context of this bill, to treat such material in the identical manner as material formally classified as child pornography under this bill, but not to include identifiable minor material in the bill's statutory definition of child pornography. It seemed to me that there is a far stronger case for the creation of one new section to deal with the new technology of child pornography, rather than two. In addition, if we included in this legislation a provision dealing specifically with identifiable minor material, but failed to include such material in the bill's definition of child pornography, this fact could be seized upon by child pornographers and pedophiles to make the legal argument that identifiable minor material cannot be considered child pornography within the meaning of federal law. This could have an adverse impact on law enforcement efforts where, for example, an individual's involvement with or prior conviction for child pornography was relevant to an investigation or prosecution, or a factor in sentencing. Following continued discussions, Senator Biden and I concluded that the most appropriate and effective method of dealing with identifiable minor material, and that most compatible with the framework for dealing with all forms of child pornography set out by the act, is to include in the proposed statutory definition of the term child pornography a subsection specifically covering such material. The Child Pornography Prevention Act contained in the omnibus bill is the Hatch/Biden substitute. Under this bill, a visual depiction would be classified as child pornography if such visual depiction has been created, adapted or modified to appear that an identifiable minor is engaging in sexually explicit conduct. The term identifiable minor would be defined as a person who was a minor at the time the visual depiction was created, adapted, or modified, or whose image as a minor was used in creating, adapting, or modifying the visual depiction, and who is recognizable as an actual person by the person's face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature, but such term does not require proof of the minor's actual identity. Modifying the definition of child pornography to include identifiable minor child pornographic material, eliminates any need to establish an additional section in title 18 pertaining specifically and exclusively to that particular type of material. Since identifiable minor material would be classified as child pornography, its distribution, possession, receipt, reproduction, sale or transportation would, like all other material so classified pursuant to the Act, be prohibited under the section 2252A created under this bill. The act also resolves any concern as to the severability of the definition's identifiable minor provision in the event the definition's appears to be language were to be struck down. S. 1237, as introduced, resolved the question of severability by the bill's severability clause, which explicitly states that if any provision of this act, which would include the legislation's definition of child pornography, is held to be unconstitutional, the remainder of the act shall not be affected. In order to set to rest any lingering concern, however, the Hatch/Biden substitute amended the act's severability clause to specifically state that if any provision of section of the definition of the term child pornography is held to be unconstitutional, any remaining provision or section of the definition shall not be affected. We know that child pornography aggravates child sexual molestation. We must take steps to deal with this latest technological challenge to our laws protecting children. I believe that the Child Pornography Prevention Act shows that the intent of Congress is not to stand idle and thereby abet this pernicious activity. I urge all senators to support this act. I ask unanimous consent a section-by-section analysis of the child pornography provision be printed in the Record.

Mr. HATCH. Mr. President, in addition, we were able to include a measure I sponsored which reimburses Billy Dale and the other members of the White House Travel Office for the legal expenses they incurred in defending themselves against the Clinton administration's politically generated investigation into the office. I am pleased that the Congress will soon pass this measure. I want to commend Senator Gregg of New Hampshire for his efforts in securing $1.4 billion in funding for our Federal antiterrorism effort. As well, this bill enhances the Federal commitment to combat illegal drugs by providing a significant increase in our drug control budget. I have to say that Senator Gregg has played a significant and pivotal war in the antiterrorism fights of this past Congress. He has done a terrific job and he deserves a lot of credit for the strides we have been able to make. I want to pay public acknowledgment to him for the good work he has done. With regard to the significant increase in our drug control budget, for example, the bill provides $140 million in funding for five new high intensity trafficking area task forces, one of which the Judiciary Committee expects will serve several Rocky Mountain States. An additional $197 million for the Drug Enforcement Administration, $46 million more than the President's request, has been provided as well as a significant increase in funding for the Office of National Drug Control Policy, the drug czar's office. Further, the omnibus bill also contains legislation which I introduced to allow the Office of Independent Counsel to obtain an additional 6-month extension for travel expenses. Ken Starr needs this time extension, and I am pleased the leadership saw fit to include this measure. As well, the bill contains $11.4 million in funding for the first phase of construction of a long-needed annex for the Federal courthouse in Salt Lake City. This has been a priority of the judicial branch for some time and it is a highly warranted expenditure. Moreover, I urged the negotiators to include a provision which clarifies the effective date of an important change to the rules of evidence which allows evidence of prior conduct to be admitted into evidence in Federal sex offense cases. This was a much needed clarification which Senator Kyl and Congresswoman Molinari urged be adopted. I am very pleased it was included. Finally, I express my opposition to the medical patents provision which was included in this bill. This measure was added notwithstanding the fact that there were no Senate hearings, and over the objections of myself, the chairman of the Finance Committee and the U.S. Trade Representative. It is an unprecedented change to our patent code and it is my intention to closely scrutinize the implementation of this new law. Mr. President, before I close, I wanted also to make a few comments about a provision tucked inside this omnibus legislation which is of great concern to me. The provision would functionally eliminate the patenting of medical procedures. I know that the authors of this provision are doing what they think is in the best interest of our citizens. Nevertheless, I take exception to their amendment on medical process patents. I think this amendment is bad patent policy and questionable trade law. A patent that is not enforceable is like no patent at all. That is simply what this issue boils down to. And further, to exempt large multi-million-dollar organizations such as HMOs from the reach of patent code enforcement, flies in the face of the American tradition of encouraging individual initiative. My final concern, a very serious concern, is about the Uruguay Round Agreements Act [URAA], the General Agreement on Tariffs and Trade [GATT] implementing legislation. Substantial questions have been raised about whether this provision is consistent with the Agreement on Trade- Related Intellectual Property [TRIPs]. In fact, it now appears that the amendment may not be consistent with TRIPs, a grave matter of international import. I also have concerns about the process implications of inserting this language in the appropriations bill. As chairman of the Judiciary Committee, I try to take special care of all of the statutes under the Committee's primary jurisdiction such as the patent code. As a member of the Finance Committee, I am also charged with the responsibility of upholding the laws that affect our Nation's international trade. In this regard, after serious study of this issue, on September 27, Chairman Roth and I wrote to our colleagues, Senators Lott, Daschle, Hatfield and Byrd, and indicated our concern about inserting this provision in the final legislation due to its unstudied impact. Mr. President, I ask unanimous consent that a copy of that letter be printed in the Record at this point.

Mr. HATCH. In short, this letter said, that as chairmen of the committees with jurisdiction over key substantive issues raised by the medical process patent amendment, we did not think that this complex, technical legislation with such a substantive impact should be included at this time and in this vehicle given there has been no study by the relevant authorizing committees. I feel it would have been preferable to look carefully before we leap into this legislative abyss which has such far reaching precedential significance. Subsequent to that letter, I received a letter from the General Counsel of the Office of the U.S. Trade Representative [USTR] stating, in sum, that the proposed policy may run afoul of the TRIP's agreement and also encourage our trading partners to follow this example to discriminate against other types of technologies. I ask unanimous consent to place in the Record at this point a copy of this September 27, 1996 letter from the Office of the U.S. Trade Representative with respect to the application of articles 27, 28 and 30 of TRIP's and how our trading partners may use this unfortunate precedent. I wish to commend the staff at USTR for their work on this vexatious issue.

Mr. HATCH. Now that this amendment will become law, I hope that those who interpret the bill as being consistent with TRIP's are correct. For if they are not, we will have unwittingly shown the way for our trading partners to absolve themselves of their responsibilities under TRIP's. The stakes are high. Virtually every trade expert believes that worldwide adherence to TRIP means jobs for American workers, and lowered costs for American consumers as piracy of products is reduced and others pay their fair share of research and development costs. Let me take a few moments to explain my concern about the impact that this provision will have on the patent code. Section 101 of the patent code has been essentially unchanged since 1793. Section 101 broadly states: ``Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent * * *'' One leading Supreme Court case, Diamond versus Diehr, decided in 1981, quoted approvingly from the Judiciary Committee bill report on the 1952 recodification of the patent code, and emphasized that patentable subject matter under section 101 ``includes everything under the sun invented by man'' and noted that process patents have been available since 1793. Judge Giles Rich of the Federal Circuit is one of America's greatest all-time experts in patent law. Circuit Judge Rich drafted the 1952 recodification in which the word ``process'' was substituted for ``art''--the first and only change in section 101 since 1793. Incidentally, I am told that Thomas Jefferson apparently helped draft this statute and in his capacity of Secretary of State had a ministerial role in actually issuing some of our Nation's first letters patent. In a leading decision in the area of biotechnology, In Re Chackrabarty, written in 1979 by Judge Rich--then of the predecessor Court of Customs and Patent Appeals --and affirmed by the Supreme Court in 1981, Judge Rich noted that a broad interpretation of what is patentable under section 101 has served our Nation well through out history: The present recital of categories in section 101. . . has been the same ever since the Patent Act of 1793, except for substituting ``process'' for ``art'' and defining it . . . to include art. For nearly 200 years since, those words have been liberally construed to include the most diverse range imaginable of unforseen developments in technology. The list is endless and beyond recitation. We merely suggest that the Founding Fathers and the Congresses of the past century could not have foreseen the technologies that have allowed man to walk on the moon, switch travel from railroads to heavier- than-air craft, fill the houses with color TV, cure normally fatal diseases with antibiotics produced by cultures of molds . . . and give to schoolchildren at small cost pocket calculators with which they can produce square roots on an . . . integrated circuit so small the circuits are not visible to the naked eye . . . We believe section 101 and its predecessor statutes were broadly drawn in general terms to broadly encompass unforeseeable future developments. In contrast to this soaring rendition of why a policy of broad patentability is beneficial to society, comes now this cleverly drafted and hastily adopted medical procedure patent amendment. Although the amendment goes through the back door of the enforcement provisions of section 287, when all is said and done the practical effect is to preclude an important class of endeavor--medical procedures--from protection under section 101. Somehow I cannot help but think that Thomas Jefferson and Judge Rich and many others will be disappointed in this shrinking of the patent code. Putting aside my major concerns about the trade ramifications, in terms of pure patent law, I think there should be a very heavy burden on those advocating change of a law that appears to be working well and has worked well for a long time. In my view, this burden has not been met. What is broken? Can anyone show me an actual example of health care negatively affected due to the existence of a procedure patent? How can we be sure that research on tomorrow's medical procedures will continue apace absent patent protection? Frankly, I find it odd that in the case that precipitated this alleged ``crisis'' that compels adoption of this particular amendment before there has been even one hearing--the Pallin ``stitch-less'' cataract surgery process, the patent was not upheld by the courts. Some argue that such process patents will drive up health care costs. But in the Pallin case the requested $4 per operation fee was much less than the $17 per stitch charge, so money was saved. Where is the crisis that justifies inviting considerable mischief by our trading partners in dragging their feet in implementing TRIP's? If we have unwittingly misinterpreted TRIP's, we will all be asking down the road, where was the Finance Committee and the Ways and Means Committee when this happened? Before we set this precedent by adopting the curious rule that you- can-have-a-patent-but-you-just-cannot-en- force-it, would it not have been better for the Judiciary Committee and full Senate to study and carefully debate the merits of this proposal? While this rule may be good in the short run for physician organizations, the health care products industry and large organizations like HMO's and hospitals, can we say for certain that categorically taking away the incentives to patent medical procedures is in the interests of the American public? One allegation that has been stressed repeatedly by the authors of this amendment is that ``pure'' process patents cost very little to develop, and thus, patent protections for such processes should not lead to substantial royalties. What this somewhat simplistic argument fails to consider are cases in which there has been substantial R&D for a process, at a cost to the inventor. For now, under the language we will approve today, any incentive for inventors to patent those discoveries will be removed, and very possibly, the incentive for research and development as well. Medical research, and medical progress, can only suffer. Over the course of the last few days, when it became clear that the negotiators for the omnibus bill might include this medical process patent provision in the final compromise, I sent three dear colleague letters in opposition to the provision. I regret that my colleagues were either unaware, or unpersuaded by, my arguments. Mr. President, I ask unanimous consent that those letters be printed in the Record at this point.

Mr. HATCH

Mr. HATCH. Mr. President, in closing, I must reiterate my profound disappointment and my objections to including this medical process patents provision in the omnibus appropriations bill. This is a serious matter and a serious precedent. We will have to look very carefully at its implications in the months to come.

Mr. HATCH

Mr. HATCH. If the Senator would yield, I want to thank my colleague from Utah, Senator Bennett, for his remarks. The clinic at Montezuma Creek, UT is absolutely essential in overall context of health care in this remote part of Utah and in this region of the country. In fact, with the recent closing last month of Monument Valley Hospital in San Juan County, the clinic is in even greater need by the community especially now that there are fewer health providers in this large area. Over the past several years, I have worked with the Indian Health Service in efforts to improve health care services in this part of Utah. And, I must say that, compared to other States, the availability of IHS facilities and services for Utah Navajos in southeastern Utah is extremely deficient. Senator Bennett and I want to correct this disparity. That is why we need to act now. I recognize that the IHS budget is limited. In that regard, I want to continue to work with my colleagues on the Appropriations Committee as well as on the Indian Affairs and Finance Committees in efforts to improve the delivery of health care for Native Americans throughout the country. One should go to some of these communities to see, first hand, the poverty and poor health conditions many native Americans tolerate. Native Americans suffer the highest rates of diabetes, tuberculosis, and fetal alcohol syndrome of any segment of the U.S. population in large part because they do not have access to adequate medical treatment. The $35,000 we are seeking is not a large amount of money. But, this amount would be a significant commitment to the Navajo people of southern Utah and northern Arizona. It is a commitment I strongly believe we should fulfill.

Mr. HATCH. I thank the Senator for his consideration. It is my hope and strong desire that we can begin a more comprehensive effort by the IHS, the Navajo Nation and the State of Utah to improve the delivery of health care in this part of Utah. I would also like to say that I believe the IHS is making a good faith effort at improving the health care of native Americans in Utah. I appreciate the work and spirit of cooperation I have sensed over the past year from the IHS. I look forward to working with the IHS as well as with all parties at improving the health care for Utah Navajos.

Mr. HATCH

Mr. HATCH. Mr. President, as the 104th Congress winds to a close, I wanted take this opportunity to comment on the demise of the Food and Drug Administration Reform legislation. It has been extremely disappointing to me that efforts to prod the FDA into meaningful reform have not been fruitful. It is doubly disappointing because, our colleague, Senator Kassebaum, and her staff have spent countless hours crafting a solid reform bill, a bill that won overwhelming, bipartisan support from the Labor and Human Resources Committee. In remarks before this body earlier this year, I outlined my views on the need for FDA reform and the principles which should be embodied in any reform legislation. I continue to believe that reform of this tiny, but important, agency is sorely needed, reform that will both streamline its operations and preserve its commitment to ensuring the public health. I know that many who have worked on the FDA issues are discouraged, but we can be proud of three significant reforms to food and drug law this year: The first being the drug and device export amendments I authored with Representative Fred Upton; the Delaney clause reform embodied in the pesticide legislation the President recently signed; and the animal drug amendments so long championed by Senator Kassebaum. It seems, therefore, that the revolutionary course we charted for FDA reform at the beginning of the 104th Congress, evolved into a path evoluntary in nature, but still productive nonetheless. Much more remains to be done, and I will continue to work with my colleagues next year to advance the work we started this year. There are many priorities for further action, among them--speeding up generic drug approvals, clarifying how tissue should be regulated, expediting medical device approvals, deficiencies in the foreign inspection program, and rigorous oversight of the Dietary Supplement Health and Education Act's implementation. Another issue that I would like to see addressed next year is one that has been periodically on the FDA radar screen: The issue of national uniformity in regulation of products that fall within the FDA's purview. In 1987, FDA Commissioner Frank Young, in response to California's proposition 65, was on the verge of issuing an FDA regulation that would have acted to preempt certain warning statements required by the State of California. In fact, in August of that year, Commissioner Young wrote the Governor of California to underscore his concerns about the potential negative effect of proposition 65 on ``the interstate marketing of foods, drugs, cosmetics and other products regulated by the FDA.'' Further, Commissioner Young pointed out that ``the Agency has adequate procedures for determining their safety and taking necessary action if problems arise.'' Although ultimately this regulation was not issued, the 1991 Advisory Committee on the Food and Drug Administration, chaired by former FDA Commissioner and Assistant Secretary for Health, Dr. Charles Edward, examined this issue. The panel recommended that Congress enact legislation, ``that preempts additional and conflicting state requirements for all products subject to FDA regulation.'' The issue of Federal preemption is extremely important for several industries, especially over-the-counter drugs, cosmetics, and foods. I was heartened when the Labor and Human Resources Committee approved Senator Gregg's amendment on national uniformity for over-the-counter drugs during consideration of the FDA reform legislation, S. 1477, but was disappointed that Senator Gregg did not extend the concept further in his amendment. Let us take the cosmetics industry as a case in point. In the United States, the cosmetics sector of the economy represents an estimated $21 billion in annual sales, a significant amount by almost any measure. It consists of over 10 billion individual packages that move through the stream of interstate commerce annually. These include soap, shampoo, mouthwash, and other products that Americans use daily. These hundreds and hundreds of product lines, and thousands and thousands of products are each subject to differing regulation in the various State--even though all must meet the rigorous safety, purity, and labeling requirements of Federal law. Given this volume of economic activity, it is imperative that manufacturers be able to react quickly to trends in the marketplace; they must have the ability to move in to new product lines and move into and out of new geographic areas with a minimum--but adequate-- level of regulation to ensure the products are not adulterated and are made according to good manufacturing practices. Today, cosmetics manufacturers are competing more and more in a global economy, and are making products consistent with the international harmonization of standards in such large marketing areas as the European Union. A single nationwide system for regulating the safety and labeling of cosmetic products would take a great step toward helping that industry move toward the international trends in marketing. At the same time, it would be a more efficient system, since allowing individual States to impose varying labeling requirements inevitably leads to higher prices. In other words, the time has more than come for enactment of a national uniformity law for cosmetic regulation. It is my hope that this issue will be high on our congressional agenda next year. In closing, Mr. Chairman, I want to offer my great respects to Chairman Kassebaum for the hours, weeks, and months of time she has devoted to the FDA reform issue. Although I have paid tribute to Senator Kassebaum in separate remarks here today, I must reiterate again how much her reputation for equilibrium and fairness have lent to development of an FDA reform proposal which cleared the committee in such a bipartisan fashion. Finally, I must also pay tribute to the lead staffer on FDA issues, Jane Williams, who has worked virtually round-the-clock to try to fashion a good, fair, bipartisan reform bill. Jane more than exceeded that goal, and I think this body should give her some much-deserved recognition. I yield the floor.

Mr. HATCH

Mr. HATCH. Mr. President, I would like to comment briefly on the asylum-related provisions of H.R. 2202, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. The agreements we reached with the House in the conference report involved a number of compromises on provisions involving the asylum system. I worked very hard in conference to modify the House provisions, and I think we arrived at workable compromises that will be fair in practice. The conference report's provisions on summary exclusion, also referred to as expedited exclusion, significantly revise the summary exclusion provisions of the Terrorism Act, which apply to those excludable based on document fraud or the absence of documents. The provisions of the Terrorism Act would not have provided adequate protection to asylum claimants, who may arrive in the United States with no documents or with false documents that were needed to exit a country of persecution. Under the revised provisions, aliens coming into the United States without proper documentation who claim asylum would undergo a screening process to determine if they have a credible fear of persecution. If they do, they will be referred to the usual asylum process. While I supported the Leahy-DeWine amendment that was included in the Senate bill and that passed the Senate 51 to 49, the conference report represents a compromise. The conference report provisions apply to incoming aliens and to those who entered without inspection, so-called EWI's but have not been present in this country for 2 years. Although the Senate provisions applied only in extraordinary migration situations, House Members felt very strongly about applying these procedures across the board. I think that, with adequate safeguards, the screening procedures can be applied more broadly. If any problems with these provisions arise in their implementation, however, and they do not seem to offer adequate protections, I am willing to consider changes to them. The credible fear standard applied at the screening stage would be whether, taking into account the alien's credibility, there is a significant possibility that the alien would be eligible for asylum. The Senate bill had provided for a determination of whether the asylum claim was ``manifestly unfounded,'' while the House bill applied a ``significant possibility'' standard coupled with an inquiry into whether there was a substantial likelihood that the alien's statements were true. The conference report struck a compromise by rejecting the higher standard of credibility included in the House bill. The standard adopted in the conference report is intended to be a low screening standard for admission into the usual full asylum process. Under the conference report, screening would be done by fully-trained asylum officers supervised by officers who have not only had comparable training but have also had substantial experience adjudicating asylum applications. This should prevent the potential that was in the terrorism bill provisions for erroneous decisions by lower level immigration officials at points of entry. I feel very strongly that the appropriate, fully trained asylum officers conduct the screening in the summary exclusion process. Under the new procedures, there would be a review of adverse decisions within 7 days by a telephonic, video or in-person hearing before an immigration judge. I believe the immigration judges will provide independent review that will serve as an important though expedited check on the initial decisions of asylum officers. Finally, under the conference report, there would be judicial review of the process of implementation, which would cover the constitutionality and statutory compliance of regulations and written policy directives and procedures. It was very important to me that there be judicial review of the implementation of these provisions. Although review should be expedited, the INS and the Department of Justice should not be insulated from review. With respect to the summary exclusion provisions, let me remind my colleagues that I supported the Leahy-DeWine amendment on the Senate floor, which passed by a vote of 51 to 49. The compromise included in the conference report is exactly that: a compromise. I support the compromise because I believe it will provide adequate protections to legitimate asylum claimants who arrive in the United States. If it does not, let me say that I will remain committed to revisiting this issue to ensure that we continue to provide adequate protection to those fleeing persecution. I would also like to comment briefly on one of the more significant changes to the full asylum process that are contained in the conference report. The Conference Report includes a 1-year time limit, from the time of entering the United States, on filing applications for asylum. There are exceptions for changed circumstances that materially effect an applicant's eligibility for asylum, and for extraordinary circumstances that relate to the delay in filing the application. Although I supported the Senate provisions, which had established a 1-year time limit only on defensive claims of asylum and with a good- cause exception, I believe that the way in which the time limit was rewritten in the conference report--with the two exceptions specified-- will provide adequate protections to those with legitimate claims of asylum. In fact, most of the circumstances covered by the Senate's good-cause exception will be covered either by the changed circumstances exception or the extraordinary circumstances exception. The first exception is intended to deal with circumstances that changed after the applicant entered the United States and that are relevant to the applicant's eligibility for asylum. For example, the changed circumstances provision will deal with situations like those in which an alien's home government may have stepped up its persecution of people of the applicant's religious faith or political beliefs, where the applicant may have become aware through reports from home or the news media just how dangerous it would be for the alien to return home, and that sort of situation. As for the second exception, that relates to bona fide reasons excusing the alien's failure to meet the 1-year deadline. Extraordinary circumstances excusing the delay could include, for instance, physical or mental disability, efforts to seek asylum that were thwarted due to technical defects or errors for which the alien was not responsible, or other extenuating circumstances. Once again, if the time limit and its exceptions do not provide adequate protection to those with legitimate claims of asylum, I will remain committed to revisiting this issue in a later Congress.

Mr. HATCH

Mr. HATCH. Mr. President, I have to say I am very disappointed. The Clinton administration is playing political games with the illegal immigration reform bill. This is one of the most important bills of this whole Congress. The Congress has worked very hard on this very necessary legislation. On August 2, 1996, President Clinton wrote to Speaker Gingrich. The only item on which he said he would veto the immigration bill was the Gallegly provision on the free public education of illegal aliens. The provision was, in fact, contained in a draft conference report proposal circulated on the evening of September 10 by Republican conferees. At no time in the next 2 weeks, as this draft proposal was circulated, was I advised that the administration wanted to remove title V of that proposal, dealing with restrictions on benefits for aliens. Indeed, the administration mentioned the Gallegly provision was really the big item to them; that if we took Gallegly out, the President would sign the bill. In order to accommodate this administration and facilitate passage of this very tough illegal immigration bill, the Republican conferees dropped the Gallegly provision outright, and I argued for the dropping of that provision, mainly because I wanted to get this bill through because there are excellent provisions in this bill that are desperately needed. Additional changes were made to accommodate other concerns expressed by some Members on the other side of the aisle. For example, illegal aliens' use of Head Start programs, English as a second language programs, and job-training programs would not count in the determination of whether the alien had become a public charge and, therefore, subject to deportation. A legal immigrant's use of emergency medical services would not be subject to deeming. But the administration is now engaging in a shell game. Even though we removed the one item the President said would lead to a veto and made still other changes in the September 10 draft, and even though the President had 2 weeks to weigh in and did not do so, the administration is now calling upon its congressional allies to slow down and even derail this bill unless wholesale changes are made to it. These changes are coming out of left field. By so demanding, the President is acting as the ``Guardian in Chief'' of the status quo. These tactics make me wonder whether the President really favors tough anti-illegal-immigration legislation. Why did he wait until after the conference to make these demands as a condition of his support for the bill? The American people want Congress and the President to deliver on this subject. The Congress is prepared to do so. Is the President? Let me go over just a few of the items in the conference report that the President is helping to delay action on. This is the illegal immigration conference report. On border control and illegal immigration control, we provide for 5,000 new Border Patrol agents, which are dramatically needed at this time if we are going to make any headway in this battle; 1,500 new Border Patrol support personnel; and 1,200 new Immigration and Naturalization Service investigators, which are very badly needed. They will not be there unless this bill passes. We provide for improved equipment and technology for border control; for an entry-exit control system to keep track of the aliens who are supposed to leave the United States; and for additional and improved border control fences in southern California. All of that is included in just part of this bill. Let me go on. With regard to alien smuggling, document fraud, and illegal immigration enforcement, we provide: Increased criminal penalties for alien smuggling and document fraud; New document fraud and alien smuggling offenses; New Federal prosecutors to investigate and prosecute immigration violations; That alien smuggling penalties will be calculated for each alien a smuggler has smuggled in; Wiretap authority in alien smuggling and document fraud cases; and A new civil penalty for illegal entry. We also make it unlawful to falsely claim U.S. citizenship for the purpose of obtaining Federal benefits, which has been going on now for years, and it is time to bring a stop to it. This bill will do it, and this President is stopping this bill. With regard to removal of illegal aliens, we streamline the removal procedures so it can happen, so it can be done. Illegal aliens who are removed will be inadmissible for certain periods. We revise expedited exclusion provisions of the Terrorism Act to ensure that those with valid asylum claims receive adequate protections from persecution. We take care of those with valid asylum claims. You can see, these are just a few more of the things that this bill does, all of which are absolutely critical to solving this illegal alien problem in our country. Let me just go on. With regard to criminal aliens--and we have plenty of those in this country right now; they are causing an awfully high percentage of the crimes in our country today. We have expanded the definition of ``aggravated felon'' for the purposes of the Immigration and Nationality Act. We have mandatory detention of most deportable criminal aliens. We have improved removal of deportable criminal aliens. We eliminate loopholes under which criminal aliens have stayed within the United States. We improve the identification of deportable criminal aliens. We increase the Immigration and Naturalization Service detention space by 9,000 beds, something they tell us absolutely has to happen or we are going to have an even greater crisis on our hands than we have now. We also have additional financial resources for the detention of criminal aliens and other detainees, which is absolutely critical if we are going to fight and win this battle with regard to illegal immigration. Let me go a little bit further. With regard to interior enforcement, we provide that State and local authorities will be able to perform immigration control functions, including transporting illegal aliens to INS detention facilities across State lines, something that currently we have difficulty doing. A lot of States, just to get these people out of their States and get them into detention facilities, would pay for the costs themselves. Many States would provide the sheriffs' deputies and others to get these people out of their States. We provide they can do that, of course, with the cooperation and help of the INS. We ensure at least 10 active-duty INS agents in each State. We certainly think that is critical. Of course, in the major border States, we have many more than that. We improve legal border crossing. We have increased border inspectors to speed up legal border crossing. We have commuter-lane pilot projects for frequent border crossers. As you can see, all of these various provisions that we have in this bill are absolutely crucial if we are going to make any headway against this problem of illegal immigration. I have to tell you that it took this Congress to do some of these tough things. I want to personally compliment the distinguished Senator from Wyoming, Senator Simpson, for working so hard as subcommittee chairman to get it done, and the whole Judiciary Committee, because it was there that we really worked out the difficulties between the Democrats and the Republicans, and I think came up with a pretty superior bill, which now has become primarily the bill that came out of conference. I want to compliment Lamar Smith and Mr. Gallegly and Mr. McCollum, and others over in the House who have played a tremendous role in this matter. In the Senate, of course, Senator Simpson and everybody on the Judiciary Committee deserves enormous credit. On the other side of the aisle, Senator Kennedy and Senator Feinstein have really played significant roles, although Senator Feinstein is primarily working with us today to try to get the bill through. She has done an excellent job. She has fought hard for her State. She realizes California, Texas, Arizona, Florida--all of these Southern States, these border States-- have to have the bill. So she is fighting to get it. At the same time she is fighting her guts out, this administration is trying to undercut her and undercut what we have done. It is an amazing thing that we have been able to bring 535 people together in the legislature, at least a majority of them, to pass a bill that will make a difference in this country. This conference report passed overwhelmingly in the House for good reason. People over there are concerned about what is happening. And it will pass overwhelmingly here if we can get it up. Frankly, the only logjam in getting it up happens to be the President of the United States and his cohorts who are all over Capitol Hill trying to ruin this illegal immigration bill. To me, I cannot understand that kind of reasoning. I cannot understand that type of activity. I cannot understand the President doing this. I cannot understand why they are not working with us to get this bill through, especially since we made every effort to get the Gallegly amendment out of that bill. To be honest with you, the Gallegly amendment was not as bad as some people have been making out. It was a rule of Federalism. All Mr. Gallegly and California wanted is for the States to have a right to determine whether or not they will educate illegal alien kids, at a tremendous cost--$2 billion to $3 billion in California. I do not think there is a State in this Union that would decide not to do so, even California, in spite of what some out there would like to do. But the fact of the matter is, it was not a bad amendment in terms of Federalism. It would not have hurt anybody, in my opinion. We even modified it to try to please the President, so we grandfathered K through 6 and 7 through 12. We provided a safety valve so we could rip it out of the bill at a future time, with expedited consideration by the Congress. But that was not good enough. Finally, it came down to literally just ripping it out of the bill, calling it up maybe separately, but ripping it out of the bill to satisfy this President who said he would not veto this bill if we got rid of Gallegly. No sooner did we do that, and last night they come up here and said, we want title 5 out of the bill. Title 5 is a pretty important provision of this bill. As a matter of fact, it contains a number of very important provisions if we are going to get a handle on illegal immigration in this country. It is incredible to me that they would do that after they gave their word, it seemed to me, with regard to the Gallegly amendment and taking it out of the bill. Mr. President, I see my time is up. Let me just finish by saying this. This is an important bill. It is one of the most important bills in this country's history. We can no longer afford to allow our borders to be just overrun by illegal aliens. There are some indications that this administration has been soft on letting people into this country, most of whom vote Democratic once they get here as noncitizen illegals. Frankly, a lot of our criminality in this country today happens to be coming from criminal, illegal aliens who are ripping our country apart. A lot of the drugs are coming from these people. This bill will play a significant role in making a real difference for the benefit of our country, and I am calling upon the President and the people at the White House to get off their duffs and start helping us to get it passed and quit this type of activity. I yield the floor.

Mr. HATCH

Mr. HATCH. Mr. President, nurturing our biomedical research infrastructure is one of the most important roles Government can serve, and that is why S. 1897 is a significant piece of legislation. I rise to express my support for the bill, and, in particular, to thank the chairman, Senator Kassebaum, for her cooperation in addressing the concerns that Senator Faircloth, Senator Harkin, and I have expressed about the need to bolster the National Institutes of Health's research efforts on pain management. Pain is a condition that each of us experiences during our lifetime, with millions suffering--perhaps needlessly. After serious study of this issue, I have concluded there is insufficient knowledge about the causes and treatments of pain, despite its substantial impact on virtually every American. Inadequate resources are dedicated to the development and evaluation of pain treatment modalities, and there is an inadequate transfer of what knowledge and information we have to health care professionals. It may surprise many of my colleagues to know that despite the impact of pain on our society, according to estimates NIH supplied to my office, the agency spent less than $60 million of its $11 billion appropriation on pain research last year, a number which, in fact, at best equal to the previous year's level of $59.5 million. For acute back pain, a condition which is estimated to affect 85 percent of the population at one time or another, NIH reports it currently spends only $2.5 million on research. An additional problem is that pain research is spread across many of the Institutes, yet there is little coordination of these research activities to make certain the resources are used effectively. In fact, a December 1995 Workshop on Selected Chronic Pain Conditions: Clinical Spectrum, Frequency and Costs, held by the National Institutes of Health concluded: With respct to strategies for promoting research on chronic pain, the participants noted that the NIH components separately support pain research, but no organizational unit integrates or coordinates this research. They strongly urged that the NIH establish a formal NIH Office of Pain Research, which would enable the NIH components to argue for pain research as a priority. As an aside, I note that this workshop was not initiated at NIH's own behest, but rather, was held to comply with the 1993 NIH reauthorization law. Indeed, there is a recent history of congressional support for enhancing the NIH's efforts on pain research. In the report accompany the fiscal year 1997 appropriations for the NIH, Senator Specter was very helpful by including the following language: The Committee is pleased that pain research is becoming an increasing part of the NIH research agenda, and remains interested in the level of its overall growth and the need for better coordination. Pain is a major public health problem afflecting or disabling nearly 50 million Americans. The Committee encourages the NIH to quickly advance interdisciplanary coordination and support of the complex issues involved in pain research, including collaboration with chiropractic colleges and schools of nursing. The Committee is aware of the 1995 NIH-sponsored workshop on pain research, and requests the Director be prepared to report on the implrementation of the workshop's recommendations during the fiscal year 1998 budget hearing. Earlier this year, Senators Harkin, Faircloth, Bennett, Inouye, Thurmond, Pressler and I introduced S. 1955, to establish a pain center at NIH. That legislation forms the basis of the provision included in S. 1897. The provision that is included in S. 1897 today, however, differs from our original bill in that it requires NIH to establish a pain research consortium. The consortium, which will be comprised of experts in pain management from both the public and private sectors, will perform the advocacy and coordinating functions outlined in our original bill. Specifically, the pain research consortium will: provide a structure for coordinating pain research activities; facilitate communications among Federal and State governmental agencies and private sector organizations concerned with pain; share information concerning pain- related research; encourage the recruitment and retention of individuals desiring to conduct pain research; avoid unnecessary duplication of pain research efforts; and achieve a more efficient use of Federal and private sector research funds. The consortium will be composed of representatives from the NIH Institutes, and practitioners of pain management, including representatives from each of the following professions: physicians who practice pain management, psychologists, physical medicine and rehabilitation service representatives--including physical therapists and occupational therapists, nurses, dentists, and chiropractors. Finally, of course, patient advocacy organization representatives will be an integral part of the consortium. Mr. President, the Congress needs to go on record in support of a stronger pain effort at the NIH. Today, we accomplish that goal. I urge adoption the bill, which now includes the Faircloth/Hatch amendment to establish a pain research consortium. I yield to my friend from North Carolina, Senator Faircloth.

Mr. HATCH

Mr. HATCH. If the Senator will yield briefly, yes.

Mr. HATCH. Mr. President, I rise today to express my disappointment at the President's decision to veto the Partial-Birth Abortion Ban Act. The President's veto was a shocking act. For this President, there are apparently no limits. While I was very pleased that the House was able to override the President's veto, I know that it will be very difficult for the Senate to muster the two-thirds supermajority needed to override the veto. That makes the President's veto all the more discouraging, because he has succeeded in preventing Congress from outlawing an indefensible late-term abortion procedure which is disturbingly close to infanticide. The partial-birth abortion bill received thoughtful consideration in the House and the Senate and was the subject of an informative and in- depth hearing that I chaired in the Judiciary Committee last December. The bill is a very limited measure and bans one particularly brutal method of late-term abortion that has been performed by only a handful of doctors and that is never medically necessary. Frankly, I still find it very difficult to believe that anyone could oppose this bill. In fact, even pro-choice Members of Congress supported this bill. One need not be antiabortion to oppose this particularly gruesome procedure. In the partial-birth abortion procedure, the doctor partially delivers a living fetus so that all but the baby's head remains outside the mother's uterus. The doctor then uses scissors to make a hole in the baby's skull, inserts a suction catheter into the baby's head, and sucks out the brains. This kills the baby. The doctor then completes what would otherwise have been a live delivery and removes the dead baby. I find this procedure indefensible. The President indicated that he would support this bill if it was amended to provide an exception for the health of the mother. I would like to point out how illusory that exception is. As testimony at our Judiciary Committee hearing demonstrated, this procedure is not performed primarily to save the life of the mother or to protect her from serious health consequences. Instead, the evidence shows that this procedure is often performed in the late second and third trimesters for purely elective reasons. I acknowledge that there may have been rare cases where this awful procedure was performed and where there was a possibility of serious, adverse health consequences to the mother. However, even in those cases, a number of other procedures could have been performed. In fact, other procedures would have been performed had the mothers gone to any other doctor than one of the handful of doctors who perform these awful partial-birth abortions. The former U.S. Surgeon General, C. Everett Koop, recently described his opposition to the partial-birth abortion procedure in an interview with the American Medical News, which was published in its August 19, 1996 issue. Dr. Koop stated: I believe that Mr. Clinton was misled by his medical advisers on what is fact and what is fiction in reference to late-term abortions. Because in no way can I twist my mind to see that the late-term abortion as described--you know, partial birth, and then destruction of the unborn child before the head is born--is a medical necessity for the mother. It certainly can't be a necessity for the baby. So I am opposed to . . . partial birth abortion. That is the view of one of this nation's most distinguished Surgeon Generals ever. And the fact of the matter is--and this is something that the President has not acknowledged--this reprehensible procedure is being performed primarily where there are only minor problems with the fetus and for purely elective reasons. It is not the worthy, necessary procedure the President paints it to be. Dr. Martin Haskell, one of the few doctors who perform this procedure, admitted in testimony given under oath in Federal district court in Ohio that he performs the procedure on second trimester patients for ``some medical'' and ``some not so medical'' reasons. Transcripts from a 1993 interview with the American Medical News reveal that Dr. Haskell stated ``most of my abortions are elective in the 20-24 week range * * * In my particular case, probably 20 percent are for genetic reasons [and] the other 80 percent are purely elective.'' Dr. Nancy Romer, who is a practicing ob-gyn, a professor in the department of obstetrics and gynecology at the Wright State University School of Medicine, and the vice-chair of the department of obstetrics and gynecology at Miami Valley Hospital, both in Dayton, OH, testified before the Senate Judiciary Committee that she has cared for patients who had received a partial-birth abortion from Dr. Haskell for reasons that were purely based on the woman not wanting a baby--as she put it, for social reasons. This procedure is simply not being done to protect the health and safety of women. After reviewing all of the evidence that came out of the hearings in the House and Senate on this bill, I don't think there can be any question about that. However, some of the doctors who perform this procedure disingenuously claim that they do it for the health of the mother. That is why a health-of-the-mother exception--even one that is, as the President now characterizes it, for ``serious, adverse'' health consequences--would gut this bill and would be easily exploited by the few selected doctors who do this procedure. Those doctors would be able to justify it under any circumstances-- particularly since, under the President's suggestion, they would be the ones to determine what constituted a ``serious, adverse'' health consequence. Just look at how the doctors who have performed this procedure have already mischaracterized essentially elective reasons for an abortion as health-related reasons. Dr. McMahon--one of the other doctors who admitted performing this procedure--indicated in a 1995 letter submitted to Congress that although all of the third trimester abortions he performed were ``non- elective,'' approximately 80 percent of the abortions he performed after 20 weeks of pregnancy were ``therapeutic.'' But Dr. McMahon then provided the House Judiciary Committee with a listing of the so-called therapeutic indications for which he performed the procedure. That list is astonishing. It shows that the single most common reason for which the partial- birth abortion was performed by him was maternal depression. He also listed substance abuse on the part of the mother as a therapeutic reason for which he performed the procedure. In terms of so-called fetal abnormalities, Dr. McMahon's own list indicates that he performed the procedure numerous times in cases in which the fetus had no more serious a problem than a cleft lip. Dr. Haskell has similarly acknowledged that he is not performing the procedure in critical instances of maternal or fetal health. In Dr. Haskell's testimony in Federal district court in Ohio, Dr. Haskell stated: ``Patients that are critically ill at the time they're referred for termination, I probably would not see. Most of the patients that are referred to me for termination are at least healthy enough to undergo an operation on an outpatient basis or else I would not undertake it.'' When asked about the specific health-related reasons for which he performed the partial-birth abortion procedure, Dr. Haskell specified that he has performed the procedure in cases involving high blood pressure, diabetes, and agoraphobia--fear of going outside--on the part of the mother. Would we want to entrust these doctors with determining when a ``serious, adverse'' health consequence existed? Is it any wonder that those who really want to see this horrifying procedure ended see the President's proposed exception for the giant loophole that it really is? The evidence has shown that in no case is this particularly gruesome procedure necessary for the woman's life or health. Medical testimony in the committee's hearing record indicates that, even if an abortion were to be performed in late pregnancy for a variety of complications, a number of other procedures could be performed, such as the far more common classical D&E --or dilation and extraction procedure or an induction procedure. When asked whether the exact procedure Dr. McMahon used would ever be medically necessary, several doctors at our hearing explained that it would not. Dr. Nancy Romer stated that she had never had to resort to that procedure and that none of the physicians that she worked with had ever had to use it. Dr. Pamela Smith, the director of medical education in the department of obstetrics and gynecology at the Mount Sinai Medical Hospital Center in Chicago, stated that a doctor would never need to resort to the partial-birth abortion procedure. Further, the hearing record refutes the claim that in some circumstances a partial-birth abortion will be the safest option available for a late-term abortion. An article published in the November 20, 1995 issue of the American Medical News quoted Dr. Warren Hern as stating, ``I would dispute any statement that this is the safest procedure to use.'' Dr. Hern is the author of ``Abortion Practice,'' the Nation's most widely used textbook on abortion standards and procedures. He also stated in that interview that he ``has very strong reservations'' about the partial-birth abortion procedure banned by this bill. Indeed, referring to the procedure, he stated, ``You really can't defend it. I'm not going to tell somebody else that they should not do this procedure. But I'm not going to do it.'' In fairness to Dr. Hern, I note that he does not support this bill in part because he feels this is the beginning of legislative efforts to chip away at abortion rights. His opinion on the this procedure, however, is highly informative. I think Dr. Nancy Romer's testimony explained it best. She said: If this procedure were absolutely necessary, then I would ask you, why does no one that I work with do it? We have two high-risk obstetricians, and a medical department of about 40 obstetricians, and nobody does it. We care for and do second- trimester abortions, and we have peer review. We are watching each other, and if we truly were doing alternative procedures that were killing women left and right, we would be out there looking for something better. We would be going to Dr. Haskell and saying, please, come help us do this. And we are not. We are satisfied with what we do. We are watching each other and we know that the care that we provide is adequate and safe. In short, this procedure cannot be justified as needed for the health or safety of women. The President's attempt to characterize it as such is misleading and disingenuous. Let me be clear that this bill does not penalize the mother if a partial-birth abortion is performed in violation of the bill. Moreover, there is a life-of-the-mother exception in the bill. President Clinton came into the White House pledging to take a moderate, mainstream course on the abortion issue. But his veto of this legislation reveals his extreme views for what they are. This veto does not even represent the thoughtful pro-choice position. It represents the abortion anytime, anywhere, under any circumstances, position. We should be very clear that this horrifying procedure, which is never medically necessary for the life or health of the mother, will continue because of the actions of the President. He could have taken a compassionate position on this issue, determined that even as a pro-abortion President, this procedure is beyond the pale, and signed this legislation. Instead, he chose to preserve this procedure. I agree with our colleague Senator Moynihan, who observed that this procedure was ``as close to infanticide as anything I've ever seen.'' The victims of late-term partial birth abortions are children. There can be no question about that. Thanks to this Presidential veto, if the Senate fails to override it, this procedure will continue to be performed in this country. And that is a sad commentary on just how immune we have become to blood and gore, even when it is performed on innocent babies. I urge my colleagues to vote to override this veto.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to speak about civil justice reform. Many of us had high hopes for tort reform in the 104th Congress, which has been desperately needed for so many years. Unfortunately, President Clinton has blocked our litigation reform efforts with his stubborn defense of the status quo. I was deeply disappointed with President Clinton's decisions to veto the securities litigation reform bill and then the product liability reform bill. Fortunately, Congress was able to override the securities veto and those important reforms became law over the President's tenacious opposition. That was not the case with product liability reform. Despite over 15 years of bipartisan work in the Congress and despite the tireless efforts of Democrats like Senators Rockefeller and Lieberman, along with Republicans like Senators Gorton and Pressler, we have not been able to make one iota of progress in addressing the product liability crisis facing Americans. Unfortunately, we have learned that President Clinton is unalterably opposed to tort reform and other litigation reform measures, no matter how badly needed they may be and no matter how much litigation is costing American consumers. We should all be very clear about what happens here: Each time President Clinton sides with America's extremely powerful trial lawyers, America's consumers lose. And once again, President Clinton's rhetoric dismally fails to match his actions. Litigation reforms are no less needed now than at the start of the 104th Congress. We simply have got to take some steps forward to alleviate the litigation tax that burdens American consumers, workers, small businesses, and others who ultimately pay the price imposed by high-cost lawsuits. Litigation reform continues to be supported by the overwhelming majority of Americans. They have indicated their frustration over crazy lawsuits, outrageous punitive damage awards, and abusive litigation. They want change from a status quo that has been unfair and that has encouraged irresponsible litigation in this country. But because of the President's actions, they will not get the meaningful litigation relief they need from this Congress. The costs of lawsuits in this country are extreme and are eating up valuable resources. These costs are passed along to consumers in the form of higher prices and higher insurance premiums. They are passed along to workers in the form of fewer job opportunities, and fewer and lesser pay and benefit increases. They are passed along to shareholders in the form of lesser dividends. These costs stifle the development of new products. Everyone in America pays a steep price for President Clinton's stubborn defense of a small but powerful group of trial lawyers. When the product liability bill was on the floor last spring, we heard that 20 percent of the price of a ladder goes to pay for litigation and liability insurance, that one-half of the price of a football helmet goes to liability insurance, that needed medical devices are not on the market because of liability concerns and on and on. We heard about millions of dollars for spilled coffee and millions for a refinished paint job on a BMW. I can go on and on about ridiculous liability cases that Americans are sick and tired of. I have spoken at length about such cases on the floor before. What is frustrating to me is that little has changed. We pass legislation to deal with this abuse of our legal system, but the President vetoes it. And it is not surprising that those who benefit from this litigation explosion--the trial lawyers--think they have found a safe harbor at 1600 Pennsylvania Avenue. They think they can get away with business as usual because President Clinton will veto any attempt to stop them. They obviously don't get it. Let me just mention a few examples of developments in the case law following the President's May 10 veto of product liability reform. In June, a Pennsylvania appellate court upheld an absolutely outrageous punitive damage award. In the case, a former Kmart worker in Pennsylvania won $1.5 million in damages from Kmart after being fired for allegedly eating a bag of the store's potato chips without paying for them. The plaintiff had sued for defamation of character based on her employer's telling her coworkers that she had eaten the potato chips without paying for them--which constituted stealing in violation of company policy. She was awarded $90,000 in compensatory damages, and an astonishing $1.4 million in punitive damages. That is absolutely outrageous and unjustified. Even if the employer had said anything wrongfully about her and the potato chips--and I say even if, because I do not think it is clear that the employer did anything wrong--I submit that there is simply no way to justify an award of $1.5 million for saying that you thought someone ate a bag of potato chips without paying for it. That is just crazy. On appeal, the court upheld the award. The dissenting judge, Judge Popovich, called the punitive damages award ``patently unreasonable given the facts before us.'' Judge Popovich got right to the heart of it when he wrote, ``I do not understand how appellant's act of informing appellee's co-workers that she was dismissed for misappropriating a bag of potato chips was sufficiently outrageous conduct to warrant a punitive damages award of $1.4 million.'' That judge is absolutely correct. I wish that was it, but there are more cases. In a case in Alabama in June, the Liberty National Life Insurance Co. was held liable in a case in which the plaintiff claimed that the company failed to pay her $20,000 in death benefits following her husband's death. The company claimed that it was not liable to pay the $20,000 in benefits because the couple had not disclosed the husband's health problems when they obtained the life insurance policy about a year before the husband died. The jury found the insurer liable and awarded the plaintiff $330,000 in compensatory damages, including emotional distress. There may be an argument that this may be a bit high on its own, but what happened in terms of punitive damages is truly astonishing. The jury went on to award the plaintiff a mind-boggling $17.2 million in punitive damages. Now, the insurance company in this case may have been right or it may have been wrong. My point is that even if the company was wrong and even if the company should have paid out the $20,000 in death benefits, an award of $17.2 million in punitive damages--17.2 million dollars--on the basis of these facts is outrageous and simply cannot be justified. And people wonder why their insurance premiums are so high. Personally, I find it hard to swallow that even one dime of an individual's insurance premium is subsidizing court ordered windfalls like this one. Take another case. This one came down in August. A jury awarded a plaintiff $7 million in punitive damages on a claim that the defendant had sold the plaintiff unnecessary insurance on a mobile home; compensatory damages were $100,000. Seven million dollars for selling unnecessary insurance and causing at most--at most--$100,000 worth of harm? How can that be? In another highly publicized and widely criticized case, which also came down following the President's veto of product liability reform legislation, the largest damages verdict ever rendered against General Motors was handed down by an Alabama jury. In that case, the plaintiff was seriously injured when he had an accident in his Chevy Blazer. I do not dispute that the plaintiff's injuries were severe or that his accident was a tragedy. However, there was evidence that the plaintiff had been drinking before the accident and was not wearing a seatbelt. The plaintiff told the first person on the scene and others that he had fallen asleep at the wheel. The plaintiff's lawyers' principal argument to the jury was that, even though the plaintiff was not wearing a seatbelt, the plaintiff was thrown out of the car because the door latch allegedly failed. However, there was evidence that the door latch worked fine after the accident and that the plaintiff was actually thrown out through the car window. This is also a vehicle that had passed federal safety standards. But let's say there was some sort of problem with the plaintiff's particular door latch. I am even willing to assume that. My problem is with the shocking amount of punitive damages that were awarded. The jury awarded not only $50 million in compensatory damages, but went on to award $100 million--you heard it correctly--$100 million in punitive damages. Punitive damages are designed to punish egregious conduct, and I just don't see the showing of egregious conduct here. The very equivocal evidence in that case just cannot warrant such a shocking amount of punitive damages. Where is the egregious conduct here? I just don't see it. Instead, I see one more example of a punitive damage system that is out-of-control. And there are more examples like these, many of them in the past few months. The sobering fact is that this problem isn't going away. Instead, it is snowballing out-of-control. I know that it is too late during this Congress to do anything more about the litigation crisis. And, it is too futile given the President's commitment to vetoing civil justice reform. But I implore my colleagues to come back next Congress committed to addressing the problem of out-of-control punitive damages and other abuses in our civil justice system. Our large and small businesses and our consumers and workers are being overwhelmed with litigation abuse. The vice president of the Otis Elevator Corp. provided us with information indicating that his company is sued on the average of once a day. Once a day. We cannot address these problems comprehensively without a uniform, nationwide solution to put a ceiling on at least the most abusive litigation tactics. We need to protect citizens of some States from the litigation costs imposed on them by other States' legal systems. In May, in the BMW versus Gore case, the U.S. Supreme Court recognized that excessive punitive damages ``implicate the Federal interest in preventing individual States from imposing undue burdens on interstate commerce.'' While that decision for the first time recognized some outside limits on punitive damage awards, legislative reforms are desperately needed to set up the appropriate boundaries. The Supreme Court's decision in the BMW versus Gore case leaves ample room for legislative action. That case acknowledged that there are constitutional bounds beyond which extreme punitive damage awards will violate due process; at the same time, the decision reinforces the legitimacy and primacy of legislative decisionmaking in regulating the civil justice system. The BMW versus Gore case was brought by a doctor who had purchased a BMW automobile for $40,000 and later discovered that the car had been partially refinished prior to sale. He sued the manufacturer in Alabama State court on a theory of fraud, seeking compensatory and punitive damages. The jury found BMW liable for $4,000 in compensatory damages and an astonishing $4 million in punitive damages. On appeal, the Alabama Supreme Court reduced the punitive damages award to $2 million. The Supreme Court held, in a 5 to 4 decision, that the $2 million punitive damages award was grossly excessive and therefore violated the due process clause of the 14th amendment. The Court remanded the case. The majority opinion set out three guideposts for assessing the excessiveness of a punitive damages award: the reprehensibility of the conduct being punished; the ratio between compensatory and punitive damages; and the difference between the punitive award and criminal or civil sanctions that could be imposed for comparable conduct. Justice Breyer, in a concurring opinion joined by Justices O'Connor and Souter, emphasized that, although constitutional due process protections generally cover purely procedural protections, the narrow circumstances of this case justify added protections to ensure that legal standards providing for discretion are adequately enforced so as to provide for the ``application of law, rather than a decisionmaker's caprice.'' Congress has a similar responsibility to ensure fairness in the litigation system and the application of law in that system. Notably, Justice Ginsburg's separate dissent, joined by the Chief Justice, argued not that the amount of punitive damages awarded in the case was proper, but suggested instead that the majority had intruded upon matters best left to State courts and legislatures. Clearly, it is high time for Congress to provide specific guidance to courts on the appropriate level of damage awards and to address other issues in the civil litigation system. We need to encourage common sense, responsible and fair litigation by reforming the system that leads to sky-high punitive damages in cases of little actual loss and by introducing fairness into the system. These lawsuits-for-profit demean the lofty ideals of our judicial system. There are people out there with legitimate grievances that deserve the time and attention of judges and juries, but the courts are clogged up with these ridiculous cases and claims. That isn't fair. The American people should know that we have been unable to enact meaningful civil justice reform because the President chooses to stand with this Nation's trial lawyers. His action is permitting litigation abuses and excesses to go on. When the American people can't buy new products, can't get needed medical devices, lose jobs they might have had if companies were permitted to grow, or can't afford their insurance costs, they should know that the President chose to do nothing about the litigation explosion in this country. Let me just close with an example of litigation reform that worked-- and one that should have been a model this Congress. That example is the statute of repose for piston-driven aircraft. In August 1994, Congress passed an 18-year statute of repose for small, general aviation aircraft. At that time, around 90 percent of employment in the piston-driven aircraft industry was gone; around 90 percent of production had disappeared due to product liability lawsuits. Today, a striking recovery is already underway in that industry. Aircraft manufacturers are planning and constructing new plants, and production and employment have grown tremendously. Cessna alone has created about 3,000 new jobs due to the enactment of that one statue of repose. When the American people consider the President's vetoes, they should ask themselves: How many new plants and factories will never open? How many new jobs has the President squandered? How many medical innovations won't we see? How much are insurance premiums going to go up? The bottom line is that I just don't think we can take much more of the present system. I hope we won't have to. I expect litigation reform to be an important part of the agenda of the next Congress, and I want to repeat my commitment to work toward that end.

Mr. HATCH

Mr. HATCH. Mr. President, I am pleased to introduce legislation that is needed before the end of this legislative session. This simple bill would extend the authority of the Marshal of the Supreme Court and the Supreme Court Police to provide security to Justices, Court employees, and official visitors beyond the Court's buildings and grounds. The bill is straightforward and should not be controversial. The authority for the Marshal of the Supreme Court and the Supreme Court Police to provide security beyond Court grounds appears at 40 U.S.C. 13n(a)(2), and was first established by Congress in 1982. Congress has periodically extended that authority, which is now slated to expire on December 29, 1996. See 40 U.S.C. 13n(c). In the past 14 years, there has not been an interruption of the Supreme Court Police's authority to provide such protection. Congress originally provided that the authority would terminate in December 1985, and extensions have been provided ever since. In 1985, authority was extended through December 26, 1986; in 1986, it was extended through December 29, 1990; in 1990, it was extended through December 29, 1993; and in 1993, it was extended through December 29, 1996. Chief Justice Rehnquist has written to me requesting that Congress extend this authority permanently. The Chief Justice correctly pointed out to me in his letter, ``As security concerns have not diminished, it is essential that the off-grounds authority of the Supreme Court Police be continued without interruption.'' The Supreme Court informs me that threats of violence against the Justices and the Court have increased since 1982, as has violence in the Washington metropolitan area. Accordingly, I support a permanent extension of this authority to provide for the safety of the Justices, court employees, and official visitors. Given the late date in the Congress, however, and the fact that we must pass an extension before December 29, 1996, I am introducing legislation that would provide for a 4-year extension, until December 29, 2000. I encourage Congress at some point to extend the authority on a permanent basis, but I am suggesting a 4-year extension so that we can get this done on short order. I note for my colleagues that this provision is without significant cost, but provides great benefits to those on the highest court in the land and those working with them. According to the Supreme Court, from 1993 through 1995, there were only 25 requests for Supreme Court Police protection beyond the Washington, DC metropolitan area, at a total cost of $2,997. I am also informed that off-grounds protection of the Justices within the DC area is provided without substantial additional cost, since it is part of the officers' regularly scheduled duties along with tasks on Court grounds. I encourage my colleagues to support this much-needed extension so that we can pass this bill before we adjourn.

Mr. HATCH

Mr. HATCH. Mr. President, I am pleased to introduce legislation that is needed before the end of this legislative session. This simple bill would extend the authority of the Marshal of the Supreme Court and the Supreme Court Police to provide security to Justices, Court employees, and official visitors beyond the Court's buildings and grounds. The bill is straightforward and should not be controversial. The authority for the Marshal of the Supreme Court and the Supreme Court Police to provide security beyond Court grounds appears at 40 U.S.C. 13n(a)(2), and was first established by Congress in 1982. Congress has periodically extended that authority, which is now slated to expire on December 29, 1996. See 40 U.S.C. 13n(c). In the past 14 years, there has not been an interruption of the Supreme Court Police's authority to provide such protection. Congress originally provided that the authority would terminate in December 1985, and extensions have been provided ever since. In 1985, authority was extended through December 26, 1986; in 1986, it was extended through December 29, 1990; in 1990, it was extended through December 29, 1993; and in 1993, it was extended through December 29, 1996. Chief Justice Rehnquist has written to me requesting that Congress extend this authority permanently. The Chief Justice correctly pointed out to me in his letter, ``As security concerns have not diminished, it is essential that the off-grounds authority of the Supreme Court Police be continued without interruption.'' The Supreme Court informs me that threats of violence against the Justices and the Court have increased since 1982, as has violence in the Washington metropolitan area. Accordingly, I support a permanent extension of this authority to provide for the safety of the Justices, court employees, and official visitors. Given the late date in the Congress, however, and the fact that we must pass an extension before December 29, 1996, I am introducing legislation that would provide for a 4-year extension, until December 29, 2000. I encourage Congress at some point to extend the authority on a permanent basis, but I am suggesting a 4-year extension so that we can get this done on short order. I note for my colleagues that this provision is without significant cost, but provides great benefits to those on the highest court in the land and those working with them. According to the Supreme Court, from 1993 through 1995, there were only 25 requests for Supreme Court Police protection beyond the Washington, DC metropolitan area, at a total cost of $2,997. I am also informed that off-grounds protection of the Justices within the DC area is provided without substantial additional cost, since it is part of the officers' regularly scheduled duties along with tasks on Court grounds. I encourage my colleagues to support this much-needed extension so that we can pass this bill before we adjourn.

Mr. HATCH

Mr. HATCH. Mr. President, I am delighted the Senate has scheduled consideration of H.R. 2464. This legislation amends the Utah Schools and Lands Improvement Act of 1993 (Public Law 103-93) which provides a vehicle by which school trust lands located within Federal reservations in Utah--such as national parks, national forests, wilderness, and Indian reservations--could be exchanged for lands located elsewhere in Utah. The act helps to ensure that Utah's schools receive the full and intended benefit of the trust lands by resolving Federal and State land management problems resulting from interspersed land ownership within Utah. H.R. 2464 would amend the 1993 act to provide for the exchange of approximately 8,000 acres of additional State land, located within the Goshute Reservation boundaries, for Federal lands, or interests, of equal value. The Goshute Tribe's reservation is located in a remote valley southwest of the Great Salt Lake and astride the border between Utah and Nevada with approximately half of the reservation within each State. This bill will resolve a long standing problem associated with the southern boundary of the tribe's reservation. When Congress initially considered Public Law 103-93, the Goshute Tribe requested a resolution of the irregular configuration on the reservation's southern boundary. The irregular configuration and remote location of about 8,000 acres of land along that boundary make proper land management virtually impossible. In fact, the State of Utah, the Bureau of Land Management and the tribe have been unable to prevent trespassing and poaching in this area. This measure will improve the tribe's ability to manage and preserve that land. H.R. 2464 was introduced in the House by my good friend Congressman Jim Hansen of Utah, and has wide support from many diverse groups including the Bureau of Land Management, the State of Utah, the Goshute Tribe, Juab County, and the Utah Wilderness Coalition. This legislation is very important to the people of Utah--to our school system--and to the tribal members of the Goshute Tribe. I urge my colleagues in the Senate to support its passage.

Mr. HATCH

Mr. HATCH. Mr. President, I rise in strong support of the Carjacking Correction Act of 1996, a bill I introduced earlier this year. This bill adds an important clarification to the Federal carjacking statute, to provide that a rape committed during a carjacking should be considered a serious bodily injury. I am pleased to be joined in this effort by the ranking member of the Judiciary Committee, Senator Biden. He has long been a leader in addressing the threat of violence against women, and demonstrates that again today. I also want to thank Representative John Conyers, the ranking member of the House Judiciary Committee, who brought this matter to my attention, and has led the effort in the House for passage of this legislation. This correction to the law is necessitated by the fact that at least one court has held that under the Federal carjacking statute, rape would not constitute a ``serious bodily injury.'' Few crimes are as brutal, vicious, and harmful to the victim than rape by an armed thug. Yet, under this interpretation, the sentencing enhancement for such injury may not be applied to a carjacker who brutally rapes his victim. In my view, Congress should act now to clarify the law in this regard. The bill I introduced this year, S. 2006, would do this, by specifically including rape as serious bodily injury under the statute. I urge my colleagues to support this bill, and anticipate its swift passage. The bill (S. 2006) was ordered to be engrossed for a third reading, was read the third time, and passed; as follows:

Mr. HATCH

Mr. HATCH. Mr. President, I rise in strong support of the Carjacking Correction Act of 1996, a bill I introduced earlier this year in the Senate, the companion of which, H.R. 3676, has now come over from the House. This bill adds an important clarification to the Federal carjacking statute, to provide that a rape committed during a carjacking should be considered a serious bodily injury. I am pleased to be joined in this effort by the ranking member of the Judiciary Committee, Senator Biden. He has long been a leader in addressing the threat of violence against women, and demonstrates that again today. I also want to thank Representative John Conyers, the ranking member of the House Judiciary Committee, who brought this matter to my attention, and has led the effort in the House for passage of this legislation. This correction to the law is necessitated by the fact that at least one court has held that under the Federal carjacking statute, rape would not constitute a ``serious bodily injury.'' Few crimes are as brutal, vicious, and harmful to the victim than rape by an armed thug. Yet, under this interpretation, the sentencing enhancement for such injury may not be applied to a carjacker who brutally rapes his victim. In my view, Congress should act now to clarify the law in this regard. The bill I introduced this year, S. 2006, and its companion House bill, H.R. 3676, would do this by specifically including rape as serious bodily injury under the statute. I urge my colleagues to support this bill, and anticipate its swift passage. The bill (H.R. 3676) was ordered to a third reading, was read the third time, and passed.

Mr. HATCH

Mr. HATCH. Mr. President, I rise in support of S. 1718, the intelligence reauthorization bill, with the understanding that one inequity contained in the bill will be corrected in conference. The bill in its current form contains what I believe is an inappropriate encroachment on the authority of the Federal Bureau of Investigation to staff its position of Assistant Director, National Security Division. The current bill requires that the FBI consult with the DCI prior to this appointment. The FBI, like any other agency, should be vested with the sound discretion to fill its ranks in a manner that is not burdened by outside Agency influence. I perceive this proposed requirement as an infringement by the foreign intelligence community upon domestic law enforcement. I recognize that, with respect to the FBI's National Security Division, there is some overlap between intelligence and law enforcement, but that alone does not justify the necessity of this measure. Let's not place an unnecessary check upon the FBI by imposing this additional requirement. Remember, it was the National Security Division which, notwithstanding bureaucratic hostility within the CIA, vigorously pursued the Aldrich Ames case. How zealous will future NSD higher ups be if they feel their career may turn on CIA approval? I urge each of you to support language which we have negotiated with the Intelligence Committee and the administration, which deletes the requirement that the FBI Director consult with the DCI prior to the appointment of its Assistant Director, National Security Division. Replacing this requirement is a provision whereby the FBI Director notifies the DCI of its selection to this vital position. The DCI may then, but is not required, to consult with the FBI Director concerning the selection. It is my belief that this provision more clearly recognizes the separate and distinct missions, as well as the differing standards by which the intelligence and law enforcement communities must operate. I urge each of my colleagues to endorse this proposed change.

Mr. HATCH

Mr. HATCH. Mr. President, I rise in strong support of the Carjacking Correction Act of 1996, a bill I introduced earlier this year in the Senate, the companion of which, H.R. 3676, has now come over from the House. This bill adds an important clarification to the Federal carjacking statute, to provide that a rape committed during a carjacking should be considered a serious bodily injury. I am pleased to be joined in this effort by the ranking member of the Judiciary Committee, Senator Biden. He has long been a leader in addressing the threat of violence against women, and demonstrates that again today. I also want to thank Representative John Conyers, the ranking member of the House Judiciary Committee, who brought this matter to my attention, and has led the effort in the House for passage of this legislation. This correction to the law is necessitated by the fact that at least one court has held that under the Federal carjacking statute, rape would not constitute a serious bodily injury. Few crimes are as brutal, vicious, and harmful to the victim than rape by an armed thug. Yet, under this interpretation, the sentencing enhancement for such injury may not be applied to a carjacker who brutally rapes his victim. In my view, Congress should act now to clarify the law in this regard. The bill I introduced this year, S. 2006, and its companion House bill, H.R. 3676, would do this by specifically including rape as serious bodily injury under the statute. I urge my colleagues to support this bill, and anticipate its swift passage. The bill (H.R. 3676) was ordered to a third reading, was read the third time, and passed.

Mr. HATCH

Mr. HATCH. Mr. President, another adverse ramification of the President's action today is inability to responsibly extract the high- quality, clean-burning, low-sulfur coal that lies in the Kaiparowits coal basin. Please note, the coal is in the basin, not on the Kaiparowits Plateau. This is not a strip mine. This is a mine right in the side that will not even show. The basin has been called the ``Saudi Arabia of coal.'' There are about 62 billion tons of coal here, about 16 billion tons of which can be mined with existing technologies. That is enough coal to fulfill Utah's energy needs for the next 1,000 years, and, I might add, the energy needs of this country. That is environmentally sound coal that could be blended with the dirty coal from the East, and it would be in the best interest of the environment of this country. I find it a little ironic that the President wants to prevent the mining of this clean, environmentally beneficial coal while we are still paying billions of dollars to clean our dirty air from burning high-sulfur, dirty coal. These coal reserves, in addition to being a financial asset to our State, are a critical energy resource for our entire country. We are being extremely shortsighted if we forget this fact. How can we justify sending U.S. troops to keep the Middle East stable and to keep the oil flowing when President Clinton refuses to develop energy resources right here in our own country? We have to do both. We have to act in the best interest of the energy needs of this country. What the President did today is not in the best interest. Mr. President, we should not forget the impact the restrictions on water rights will have, not only on Utah, but also on Colorado, New Mexico, Nevada, Arizona, and California. Utah is the second driest state in the union. This action by President Clinton would deny our state the right to develop its water in southern Utah. Finally, Mr. President, I wonder how the Administration plans to pay for the operations and maintenance of what would be the largest national monument in the United States. Already, the National Park Service is stretched to the limit. Adding nearly 2 million acres to their inventory--almost the size of Yellowstone-- raises real questions about our stewardship of this land. We want to preserve land in southern Utah. There is no question that Utahns want to protect as much land as we can. We would support a well thought out proposal for additional national park or wilderness areas in southern Utah. We also recognize that there are differences of opinion concerning the number of acres and management prerogatives. We believe those are matters for negotiation and compromise, not for making political hay with important special interest groups. We would like to work with President Clinton to develop a sound preservation plan. And, the offer is still open to work together on this. But, frankly, I say to my colleagues, real damage has been done here--both to Utah and to the tradition of open debate. The failure even to consult prior to making this decision should be considered devastating to representative democracy. Our Utah newspapers have thus far been unanimous in their criticism of the President's action. But, they also represent the people of Utah. They may be sympathetic to environmental concerns--just as Utahns are-- and they may support more protected land in southern Utah--just as many Utahns do--but they draw the line on a Federal Government exercising what they construe as abusive power--just as Utahns do. So permit me to quote from an editorial this morning from the San Francisco Chronicle: ``The question is whether a decision of such magnitude should be carried out by executive order. We think not.'' While acknowledging their differences with me and my colleagues on the specifics of the wilderness bill proposed earlier, the Chronicle goes on to suggest that: ``In this case, Clinton is taking the wrong route--an election-year shortcut--to the right goal.'' The bottom line here, Mr. President, is that any proposal that is going to have such an incredible impact on the people of Utah--or of any other State--ought to be vetted by our political process. People ought to be able to debate it in the press, on talk radio, in civic clubs, and across back fences. They ought to be able to write their Congressman. They ought to be able to support it or protest it. Utahns have had little opportunity to do either. There is something fundamentally wrong with a Presidential action that deprives a State of $6.5 billion in revenue, $1 billion for education, surrounding States with water resources, and the entire Nation of important energy resources without even a hearing or a vote. One last thing: I want to put the Senate, the House, and the President on notice that this issue is not over. William Jefferson Clinton's signature on this order isn't the end of it. We cannot suffer this kind of an assault on Utah without a fight. So, today it begins. Mr. President, I will just conclude with these comments. There is no question that Utahans want to protect as much lands as we can. We would support a well-thought-out proposal for additional national park or wilderness areas in southern Utah and even a national monument, which is not as good as wilderness areas or national parks. We also recognize that there are differences of opinion concerning the number of acres in management prerogatives. We believe those are matters for negotiation and compromise, not for making political hay with important special interest groups. We would like to work with President Clinton, if he would, to develop a sound preservation plan. And the offer is still open for us to still work together on this. But, frankly, I say to my colleagues, real damage has been done here, both to Utah and to the tradition of open debate. The failure to even consult prior to making this decision is to be considered devastating to representative democracy. I ask unanimous consent that a number of documents be printed in the Record.

Mr. HATCH. Mr. President, for my colleagues who may have missed it, today President Clinton used executive power under the 1906 Antiquities Act to designate nearly 2 million acres in southern Utah as a national monument. A national monument, as my colleagues know, effectively locks up land within its boundaries preventing any kind of responsible development and limiting existing rights, including water rights, in the second driest State in this Union. Utah is already home to five national parks, two national monuments, two national recreation areas, seven national forests, one national wildlife refuge, and 800,000 acres of wilderness. We prize our land in Utah. We believe we ought to preserve as much of it as we can, and we would like to continue working on legislation to designate more wilderness in Utah. But the process the President is using is flawed and inherently unfair. I just say, the unilateral action taken by the President today is out of bounds. Members from Utah's congressional delegation and our State Governor had to read about this proposal in the Washington Post. That is the first time we heard about it. There has been no consultation whatsoever in the development of the proposal. We have seen no maps; no boundaries; there have been no phone conversations; no TV or radio discussion shows; no public hearings; absolutely nothing from this President. None of the procedures for review and comment that are built into our environmental laws, such as the National Environmental Policy Act or FLPMA have been followed. These procedures are a part of our law precisely to guard against the Federal Government from usurping State or local prerogatives without public knowledge or comment. While the 1906 Antiquities Act may, indeed, give the President the literal authority to take this action, it is quite clear to me that in using this authority, President Clinton is violating the spirit of U.S. environmental laws and, indeed, of American democracy itself. It was no doubt inconceivable before today that any President of the United States would take such dramatic action--action that so dramatically affects any State--without due diligence. And it is plain to this Senator that the White House either flunks the test of due diligence or takes this action deliberately without regard to its negative impact on our State. What should be especially relevant, and alarming, to every Senator is that this disregard for established public law requiring public input, let alone the disregard of established traditions of democracy, can be applied elsewhere other than Utah. Today, Utah; tomorrow, your State. I hope my colleagues will not brush off the precedent this Executive action creates. There are numerous negative consequences to this President's action today. Among the most serious is the effect on education in Utah. Many States in the West depend on school trust lands to help finance their educational systems. In fact, 22 States, most of the States west of the Mississippi River, have trust lands. Utah relies heavily on the income produced by these trust lands to help finance our schools. The national monument proclaimed by President Clinton will capture approximately 200,000 acres of Utah school trust lands and render them useless to Utah schoolchildren. I say to my colleagues, and to President Clinton if he is listening, this is a potential loss of $1 billion to Utah schools, and these environmental extremists are already talking that it is only $36,000 a year. That is how ridiculous they are. There is not a single State in America that can afford to lose that kind of money for education--that is $1 billion worth --let alone Utah, which, because we have so much public nontaxable land, is always straining to fund education. What is even more appalling is the fact that the resources President Clinton is taking away from Utah kids, in effect, is their own land. These school trust lands were deeded to Utah to be held in trust for our children's education, and with one stroke of the pen, these 200,000 acres will be gone. The Utah Public Education Coalition, which includes professional educators, State and local administrators, the PTA and school employees, have come out strongly against this arbitrary action by the President. I ask unanimous consent that their letter to President Clinton, position statement and resolution, be printed in the Record at the conclusion of my remarks.

Mr. HATCH

Mr. HATCH. Mr. President, a number of us have spent countless hours trying to devise a plan to turn back the dreadful tide of methamphetamine abuse which is now beginning to flow westward across the United States, threatening to engulf both cities and rural areas. We have now crafted such a plan, a bipartisan plan which meets those goals, we have introduced as S. 1965, the Comprehensive Methamphetamine Control Act of 1996. I rise to ask my colleagues' support for this legislation and for the amendments to that bill that have allowed it to win near unanimous support. Mr. President, we have all seen the recent alarming reports indicating that drug abuse has increased during the tenure of the Clinton administration. Today, the Congress can take an important step to curb our nation's recent backsliding on the drug issue. I am proud to point out that this is a bipartisan measure--I think this is how drug policy should be made--and I wish to thank all of our cosponsors: Senators Biden; Grassley; Feinstein; Wyden; Daschle; DeWine; Specter; D'Amato; Harkin; Ashcroft; Reid; Kyl; Feingold; and McCain. I wish to thank especially the ranking member of the Judiciary Committee, Mr. Biden, for his help in developing this legislation. I can report to my colleagues in the Senate that the House Judiciary Committee is also at hard work on this issue--they have a markup scheduled for tomorrow--so I think it is very possible, indeed highly probable, that we will send a bill to the President before adjournment. That time cannot come soon enough. Two weeks ago, I testified before the House Judiciary's Subcommittee on Crime, which held a hearing on the meth epidemic. I was encouraged at that hearing by the efforts of Chairman McCollum and Representatives Heineman, Schumer and Fazio, who are working with us to get a bill we can all endorse. We developed this bill in close consultation with the Department of Justice and the Drug Enforcement Administration. Indeed, General McCaffrey, Director of the Office of National Drug Control Policy, has testified before the Judiciary Committee that he supports our legislation, so I am certain that the President will sign the bill once the House completes it work on this measure. Frankly, it is time for this administration to show that the war against drugs is a top national priority. A responsibility of those in leadership positions is to give first attention to the most important problems and this is certainly one. Mr. President, meth is a killer. We know that meth-related deaths are up dramatically from 151 in 1991 to 433 in 1994. We know that methamphetamine-related hospital admissions are up about 300 percent in the last 5 years. Seizures or illegal meth labs are up all over the country and even in my home State of Utah. Illicit lab seizures in Utah increased from 13 in 1994 to 56 in 1995. In 1996, there have already have been 40 meth lab seizures in my State. Given this pernicious trend, the time to act is now. We must act in a comprehensive fashion and that is what this bill does. S. 1965 increases the penalties for illegal manufacture and distribution of methamphetamine and its precursors chemicals. It also increases penalties for illegal possession of and trafficking in illicit methamphetamine. In a careful balance, S. 1965 also reduces single transaction reporting requirements for sales of over-the-counter pseudoephedrine and phenylpropanolamine products to 24 grams. At the same time, our proposal creates a safe harbor for legitimate cough and cold products sold in blister packs at the retail level at quantities of up to 3 grams. The Comprehensive Methamphetamine Control Act establishes new reporting requirements for firms selling these products through the mail, since law enforcement officials have found that mail order sales are a significant source of diversion. I believe that education and research are key to efforts to stop drug abuse, and our bill contains a separate title which makes them a top priority. The bill creates an interagency task force on the methamphetamine epidemic which will coordinate efforts across the Government. It requires that the Secretary of Health and Human Services develop a public health monitoring program, which will collect and disseminate data which can be used in policy development. The bill also established a public-private education program, an advisory panel of Federal, State and local law enforcement and regulatory agencies with experience in investigating and prosecuting illegal transactions of precursor chemicals. As I have said, Mr. President, this bill is the product of long and hard negotiations among many parties. None of us are completely comfortable with every provision, but taken as a whole we are confident the bill will meet our common goal. An important component of the bill we introduced, as well as the Clinton administration's proposal, were mandatory minimum sentences for meth dealers. The bill we pass today does not contain those ``mandatory minimums,'' due to adoption of the Kennedy-Simon amendment. From my perspective, the Kennedy-Simon language on sentencing will not be as effective as the mandatory minimums that were contained in the original version of the bill. My colleagues should note that this bill would not have passed without our accepting the Kennedy-Simon amendment. The sponsors of this amendment were rather clear in expressing their desire to keep this bill from passing by unanimous consent without the change embodied in their amendment. In the 105th Congress, it is my intention to pursue enactment of these penalties. In the interest of passing a bill in an expeditious fashion, I have reluctantly agreed to accept the Kennedy-Simon amendment. Another troublesome aspect of the compromise is the manner in which combination ephedrine products are treated. In the bill we are about to adopt, such products are treated differently than pseudoephedrine or phenylpropanolamine products. The chief difference is that the combination ephedrine products are not permitted to take advantage of the 3 gram, blister pack rule that is afforded to pseudoephedrine and phenylpropanolamine products. I do not know of, and understand that the Drug Enforcement Agency does not know of, any public policy justification for this difference in treatment of products. One possible--perhaps likely--result will be to decrease the public's legitimate access to these products. I think this is unfortunate, and I hope this provision can be revisited. I would also like to comment on a few of the changes we made in the bill after its introduction. These changes are embodied in the Hatch- Biden-Wyden-Grassley-Feinstein technical correction amendment. One such change, which I believe is a significant improvement, is to provide guidance of what evidence the Department of Justice may use in examining whether the safe harbor provisions that affect certain products--those products sold in blister packs in quantities of 3 grams or less--are being diverted. We have clarified that isolated or infrequent use, or use of small quantities of these products, cannot be used to close the 3 gram, blister pack safe harbor for pseudoephedrine and phenylpropanolamine products. As we crack down on those who make and sell illegal drugs we must also balance the interests of the millions of our citizens who benefit from legitimate over-the-counter drug products. Only if there is solid evidence of systemic abuse of 3 gram, blister pack retail sales should any further steps be taken that would impede the ability of ordinary, law-abiding Americans to have access to safe and effective cold remedies upon which they have come to rely. We must give the safe harbor provisions a fair test, and that is why the revised bill requires consultation with the Secretary of Health and Human Services and departmental reporting to Congress if the Justice Department believes the safe harbor should be breached. Make no mistake about it, without the 3 gram, blister pack provision, many legitimate distributors of over-the-counter products would likely choose not to offer pseudoephedrine and phenylpropanolamine products. This is so because without this safe harbor language legitimate distributors of these over-the-counter products risk triggering the reporting and record keeping provisions and criminal sanctions that are attendant to regulated sales. At the request of the DEA, we included two important provisions. One makes the effective date of the so-called ``safe harbor'' provision effective for products on the shelf one year after enactment. The original bill had an effective date for products initially introduced into interstate commerce prior to 9 months after the date of enactment. The other provision allows the DEA to begin immediately upon enactment to collect data used to determine if the safe harbor provision should not be retained. I would also like to comment on another critical provision of the Hatch-Biden-Wyden-Grassley-Feinstein amendment, which is that it takes the unusual step of legislatively overriding a regulation. This provision was made necessary due to the fact that, on August 7, 1996, the DEA promulgated a final rule with respect to certain pseudoephedrine products. The DEA had been involved, almost daily, in the negotiations over the development of the bill prior to promulgation of this final rule. I take the unilateral action on the part of the DEA to issue that rule-- without any notice to the relevant committees--to be unfortunate bureaucratic judgment or a snafu. I have accepted the assurances of DEA Administrator Tom Constantine that this was an inadvertent error and that such failure to communicate, particularly when it could jeopardize good faith work toward a common goal, will not occur in the future. As chairman of the Judiciary Committee, I plan to continue to work closely with the DEA and Department of Justice as we plan, implement, and oversee our Nation's battle against drug abuse. It is important that we work together. Finally, as a result of testimony at the House hearing, we have added two provisions to the bill. One allows the effective date to be extended up to 6 months at the sole discretion of the administration. The second allows manufacturers to petition for reinstatement from the legal drug exemption; the Attorney General may grant such an exemption if she finds that the product is manufactured and distributed in a manner which prevents diversion. On balance, I think that these provisions represent a reasonable compromise. We have all strived to keep in mind our topmost goal: curbing methamphetamine abuse. The bill we are considering today meets that goal. It is comprehensive, it is tough, and it is much needed. I hope that we will approve the amended version of S. 1965 quickly, so that the House may consider the measure, and we can move it swiftly downtown to the President for his signature.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to express my opposition to the Bumpers amendment to raise grazing fees on public lands. The future of many livestock producers in Utah and elsewhere in the country is threatened by this amendment. I am not aware of any cattle producers in Utah who will be making a profit this year. At the same time as Utah ranchers are facing dismally low prices for their cattle, they have been hit with a devastating drought. On top of this, economic conditions in Canada and Mexico have flooded our United States market with their cattle. Ranchers who have grazed these lands for generations are being forced to pull up their stakes and close up shop. With the cattle industry in such bad shape, many agricultural lenders, aware of the possibility of increased grazing fees on public lands, have become increasingly unwilling to lend to livestock producers. An increase in grazing fees now could be devastating. This amendment would exempt ranchers from higher fees who have permits for fewer than 5,000 AUM's, or animal unit months. Animals are numbered and accounted for by animal unit months. An AUM represents a unit of forage that is normally consumed by one cow and her calf or five sheep over a 1-month period. Unlike many States, Utah public lands are grazed in the summer and the winter. A rancher owning as few as 500 head of cattle and grazing them for 10 months would need 5,000 AUM's. Such a rancher would be subject to these higher fees. Especially hard hit by this amendment would be Utah's beleaguered sheep grazers, a large proportion of whom would be faced with these higher fees. Grazing fee increases will accomplish little more than to drive many family ranchers out of business. Of course, some private land owners charge more than the Federal Government for grazing on their lands. Private owners provide services which public lands do not. The Federal Government does not stock water ponds, provide fences, or provide roads. Ranchers using the public lands must provide these things for themselves at their own expense. Mr. President, this amendment will not result in increased revenue from public lands. It will more than likely decrease revenue as ranchers who can no longer afford to use public lands find other options or go out of business. I might add, Mr. President, that there are few other options for grazing land in Utah. The BLM controls 22 million acres of land in our State. The Federal Government controls 70 percent of our State. Mr. President, I urge my colleagues to vote to maintain what is not only an important part of our Western heritage, but an important sector of the economy of many Western States. The next time my colleagues sit down to a nice juicy steak or to a hamburger with their kids at the local fast food restaurant, I hope my colleagues will remember that some rancher worked hard to produce it and may have even lost money for this effort. Mr. President, I urge my colleagues in the Senate to oppose the Bumpers amendment.