Orrin Hatch

Mr. HATCH

Mr. HATCH. Mr. President, I will not say much here today except that I knew Ron Brown very well. I thought he was one of the finest people in this town. I knew him when he was a leader on the Judiciary Committee under Senator Kennedy, and we were friends ever since. Many times I have lamented that we did not have as competent and tremendous a leader in our party as then Chairman Brown was. We had good people. We can be proud of them. But Chairman Brown did one of the best jobs I have ever seen done in a national election. I also have traveled around the world and have seen some of the work that he has done with regard to the Commerce Department's work and opportunities, and he did a terrific job. He was well recognized all over the world as somebody who advanced America's business. I personally want to send a message to his family and to those who loved Ron Brown that I did, too, and I had cared for him. Had I not been in the Balkans during that time--we left the day after the accident--with the minority leader and Senator Reid, I would have been at his funeral to pay my respects to him and his family. Of course, I am very grieved and hurt by this tragic accident. I also want to extend my sympathy to all of the families of those who died in that tragic accident. Having traveled over there, I can see how that could occur. I can see how difficult that must have been for all of those families who lost loved ones as a result of that tragic crash. I could not speak more highly of a person than I am presently speaking of Ron Brown. I knew some of the others on the plane. I actually met with some of the people who were friends of the crew who flew the plane. We had a crew that flew us into Sarajevo and into Tuzla who basically had worked day in and day out with all of the members of that crew. I know that I speak for everybody in the Senate and across this country in extending our sympathy to all those folks who lost their lives. I hope Ron's wife, Alma, will be comforted, and I hope that the family will be comforted as well. He has my respect, and I am very happy to have had this time to pay my respects this morning.

Mr. HATCH

Mr. HATCH. Mr. President, today I introduce a bill that would permit the Federal District Court of the Central Division of Utah to hold court in Provo and St. George. Under the relevant statutory provision, title 28, United States Code, section 125, District Court for the Northern Division of Utah may be held only in Ogden, and District Court for the Central Division of Utah may be held only in Salt Lake City. The central division of Utah, however, is quite expansive: it encompasses 23 counties and spreads from the Salt Lake region down to Utah's southern border. Due to the division's size, those involved in district court proceedings, whether as litigants, jurors, or lawyers, must travel to Salt Lake City for district court. The district judges and others in Utah have become concerned about inconveniences that have arisen due to the statutory constraints on the places of holding court in Utah. On January 9, 1996, the district judges for the District of Utah voted to approve an amendment to title 28, United States Code, section 125 that would permit district court for the central division of Utah to be held not only in Salt Lake City, but also in Provo and St. George. The bill I introduce today embodies those changes. The Utah State Bar supports the bill. This bill will help Utahns by facilitating the administration of justice in Utah, and by permitting easier access to the district courts to citizens and litigants throughout Utah, who have often had to travel to Salt Lake City to have their cases and concerns heard. Provo itself is a significant city with a population of 86,835. The neighboring city of Orem, UT, adds a population of 67,561 to Provo's immediate region. St. George, while a smaller city, is located in the southwest corner of Utah, and would provide a convenient location for citizens of southern Utah. The minor modifications embodied in the bill will place Utah in a similar position to many other States in which district court may be held at numerous statutorily designated locations. The vast majority of States enjoy far more than two places in which district court can be held. Just to cite a few examples, 13 cities in Alabama are designated as cities in which district court may sit, 11 cities in Arkansas are so designated, 17 cities in Georgia are named, 12 cities in Iowa are included, and 23 cities in Oklahoma are listed. Under current law, only Delaware, Hawaii, Maine, New Hampshire, and Rhode Island stand with Utah in having two or fewer locations in which district court may be held. Utah is the largest of those States. Even with the change, a mere four cities in Utah will be designated as places for holding district court. I note for my colleagues that the bill does not require any additional appropriations or any courthouse construction. It simply permits court to be held in two additional locations. I ask unanimous consent that the entire text of the bill be printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, I rise to address a subject that I have discussed several times in the past few weeks, and that is the issue of judicial selection. As I said in those speeches, differences in judicial philosophy can have real and profound consequences for the safety of Americans in their neighborhoods, homes, and workplaces. Sound judging is every bit as much a part of the Federal anticrime effort as FBI and DEA agents and prosecutors. It does the Nation little good to put more cops on the beat if judges put the criminals back on the street. And, I might add, the President overstates the number of police that the Federal Government is helping put on the street. I see that the President has attempted this week to respond to my speeches through his subordinates. One argument, made by his former White House counsel, maintains that it is really the home State Senators who appoint judges. This argument is just another example of the President attempting to hide from the consequences of his decisions. The last time that I looked in the Constitution, it stated that the President ``shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges.'' Presidents may look to individual Senators to recommend good nominees in each State, but the Constitution itself makes clear that the choice of judges is the President's responsibility and the President's alone. I do agree with one thing that Lloyd Cutler said in his Washington Post op-ed. It sometimes is difficult to predict what nominees will be like once they ascend to the Federal bench. While the executive branch, as Mr. Cutler said, has ``an extensive vetting process,'' we in the Senate do not. For the most part, a President's nominees usually are confirmed by the Senate. When the people elect a President, they put into office with him his judicial philosophy and the judges he will appoint. But perhaps the Senate does need to spend more resources vetting nominees. Perhaps the Senate should interview each and every judicial nominee as a matter of routine, if Lloyd Cutler is right. Another argument made by President Clinton's current White House counsel, Jack Quinn, is that there are soft-on-crime decisions by judges appointed by Presidents Reagan and Bush. As I said on Monday, I do not agree with every decision by a Republican-appointed judge or disagree with every decision by a Democrat-appointed judge. Moreover, we all know that prosecutors and police sometimes go over the line, and that it is the job of state and federal judges to correct those mistakes. Unfortunately, sometimes those decisions will benefit criminals that we all know to be guilty. But what we are talking about here are not a few isolated cases or incidents. We are talking about track records: about the fact that judges appointed by Democrat Presidents, and President Clinton in particular, generally will be softer-on-crime and will be more likely to follow an activist judicial philosophy than judges appointed by Republican Presidents. Just as President Johnson appointed Judge J. Skelly Wright to the D.C. Circuit, a notorious judicial activist, and President Carter appointed, among many others, Judge Stephan Reinhardt of the ninth circuit, a judge who is so activist that the Supreme Court regularly overturns his decisions, so has President Clinton appointed judges such as Judges Baer and Beaty, Judges Michael and Calabresi, and Judges Sarokin and Barkett, whom I will discuss today. The President seems to think that it is wrong to evaluate the decisions of these judges. ``The point is that it is unfair to evaluate any judge on the basis of any single case,'' writes his counsel in the Wall Street Journal. I disagree. It is only by reading the opinions of these judges that we can make a determination of the kinds of men and women that President Clinton has chosen to send to the Federal bench. Let me also be clear that it is not the result of an individual case that is the problem. The problem with these Clinton judges is the way they reach their decisions--their willingness, perhaps even eagerness, to stretch the law, to expand criminal rights at the expense of the community, to seize on petty technicalities to release defendants, to find new constitutional rights where there were none before. Many of these judges are activists who simply cannot understand that their role as is to interpret the law, not to make it. But the President's approach--that once a judge is on the bench, and you cannot read his or her opinions--is a convenient one. It is the only way that he can explain his decision to appoint Judge H. Lee Sarokin to the U.S. Court of Appeals for the Third Circuit and Judge Rosemary Barkett to the U.S. Court of Appeals for the Eleventh Circuit. These were judges with crystal-clear track records of being liberal, soft-on-crime activists, when President Clinton appointed them. These two judges, who sit on the second most powerful courts in the land, have displayed an undue and excessive sympathy for the criminals who are destroying our society and who are all too willing to impose their own moral beliefs onto the law and onto our communities. I led the fight to oppose the confirmation of these two judges because their judicial records indicated that they would be activists who would legislate from the bench. Senators from both sides of the aisle joined me in that fight. I regret to conclude that we have been proven right in our predictions of their activism on the Federal bench. Let us look at what Judge Sarokin has been up to since President Clinton chose to elevate him in 1994. The Senate confirmed his nomination 63-35--a pretty large vote against him--on October 4, 1994. I think that it is safe to say that no Republican President would have nominated a judge like Judge Sarokin, and that if the Republicans had control of the Senate in 1994, Judge Sarokin would never have been confirmed. Let me tell the American people about the cases of William Henry Flamer and Billie Bailey, which were heard by the third circuit late last year. Delaware versus Flamer; Delaware versus Bailey. This was a case involving two multiple murders in which Judge Sarokin voted to overturn a jury's imposition of the death penalty. In the Flamer case, on a snowy February 7, 1979, at 8:00 a.m. in the morning, Arthur Smith, the 35-year old son of Alberta and Byard Smith, walked across the street to his parents' house in Delaware. He found them sprawled on the living room floor obviously murdered in cold blood. Both parents died of multiple stab wounds in the head and neck. The medical examiner counted 79 wounds on Mr. Smith's body and 66 wounds on Mrs. Smith's body. Their car was stolen, a television was missing, chairs were overturned, bags of frozen food were strewn about, and Mr. Smith's pockets were turned inside out. The son--can you imagine what it must be like for a son to discover such violence to his parents in their own home--called the police. Eyewitnesses indicated that William Henry Flamer, whose mother was Mrs. Smith's half-sister, might be the killer. Police went to his family's residence and found the missing television, frozen food similar to that strewn about the Smiths' home, and a bayonet with dried blood stains on the blade. When police arrested Flamer, they found blood on his fingernails and coat and fresh scratches on his neck and chest. After he had been read his Miranda rights numerous times and after his arraignment, Flamer confessed. He told police that he and another man brought a knife, the bayonet, and a shotgun, and that he had told Mrs. Smith, his aunt, that his grandmother had experienced a stroke and was missing in order to gain entrance to the Smiths' home. In early 1980, a jury convicted Flamer of two charges of intentionally causing the death of another person and two charges of felony murder. A jury then sentenced Flamer to death because of several aggravating sentencing factors, such as Flamer's prior criminal record, the age of his two victims, the frailty of his aunt Mrs. Smith, and his exploitation of his aunt and uncle's trust in order to gain entrance to their home. Flamer had the opportunity to challenge both his conviction and his sentence on direct appeal. The Delaware Supreme Court rejected his appeal and the U.S. Supreme Court denied certiorari in his case twice. Flamer filed for post-conviction relief in State court, but his petitions were denied. Nevertheless, Flamer filed a habeas petition in Federal district court alleging a number of trial errors. Judge Joseph Farman of the U.S. District Court for the District of Delaware, who was appointed by President Reagan in 1985, dismissed the petition. Flamer appealed to the Third Circuit Court of Appeals. The third circuit consolidated Flamer's appeal with that of Billie Bailey, another multiple murderer convicted by the Delaware state courts. Bailey had been assigned to a work release facility in Wilmington, but he escaped and then proceeded to rob a package store at gunpoint. He received a ride to Lambertson's Corner, 1\1/2\ miles away from the store. Bailey then entered the farmhouse of Gilbert Lambertson, who was 80 years old, and of his wife, Clara Lambertson, who was 73. Bailey shot Mr. Lambertson twice in the chest with his pistol and once in the head with the Lambertsons' shotgun. He shot Mrs. Lambertson in the shoulder with the pistol and in the abdomen and neck with the shotgun. Both Lambertsons died. Bailey fled from the scene but was spotted by a police helicopter. He shot at the helicopter, but was apprehended. Bailey was convicted of murder and was sentenced by a jury to death. The jury found that two factors--that the defendant's conduct had resulted in the deaths of two persons where the deaths were a probable consequence of the defendant's conduct; and that the murders were outrageous or wantonly vile, horrible, or inhuman--and they in turn supported the imposition of death. Bailey appealed, but the Delaware Supreme Court affirmed the conviction and the sentence, and the U.S. Supreme Court denied certiorari. Like Flamer, Bailey filed a writ of habeas corpus in Federal district court, claiming that the jury had considered improper factors when imposing the death sentence. Judge Roderick McKelvie, a Bush appointee, denied the writ. On appeal before the entire third circuit sitting en banc, Flamer and Bailey argued that the imposition of the death penalty was unconstitutional because the juries had considered an invalid factor: whether the murders were wantonly vile, horrible, or inhuman. It is true that the Supreme Court had held that such a factor is so vague as to be unconstitutional. But in the case of Zant v. Stephens in 1983, 462 U.S. 862 (1983), the Supreme Court also held that so long as the jury's capital sentence was also based on other, legitimate considerations, then the death penalty is not unconstitutional. This, of course, was precisely the case with both Flamer and Bailey. In both situations, the juries had found that other factors, such as Flamer's commission of the murder in the course of a robbery, also justified the death penalty. As a result, a majority of the third circuit affirmed the convictions. Let me add that no one challenged the finding that either Flamer or Bailey committed the horrendous murders. No one showed that either jury was biased or had reached the wrong result. Instead, the defendants were using the writ to raise technical objections in the hopes of delaying the rightful execution of the death penalty. It is abuses of the writ such as these that lead the American people to believe that something is wrong with our courts. It is abuses like these that lead the American people to demand habeas corpus reform. The American people's belief would only be confirmed if they read the Flamer and Bailey case, because Judge Sarokin was in dissent. Judge Sarokin believed that the defendants had received an unfair trial, even though they had both had the opportunity to fully appeal all the way to the U.S. Supreme Court. He argued that the judge's instructions and interrogatories asking the jury what factors they relied upon in reaching their decision had ``shifted the neutral balance contemplated under the statute and with it, the scales of justice as well.'' According to Judge Sarokin, State judges cannot ask juries why they imposed the death penalty, even though judges do this to ensure that the juries were unbiased. In Judge Sarokin's mind, for judges to ask jurors this commonsense question renders the whole process unconstitutional. The eighth amendment says only that ``Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted.'' Further, Judge Sarokin argued that allowing juries to consider the invalid vile, horrible, and inhuman factor--and who can doubt that these murders were utterly heinous--so infected the juries' considerations as to render them unconstitutional. He reached this conclusion despite the Supreme Court's clear holding in Zant that consideration of one invalid factor does not make the whole decision unconstitutional. By a 10 to 4 vote, the majority on the court reached the right result, because the Constitution guarantees a fair trial, not a perfect one. Allowing defendants to win reversals on technicalities even when no one disputes that the defendant is guilty and deserves the death penalty would truly undermine the public's faith in our criminal justice system. As the Supreme Court has said many times, and as the majority recognized in Flamer, a harmless error does not render a trial unconstitutional, and there was no showing in this case that any error had influenced the jury's verdict or caused the defendant's any prejudice. If one needed any more confirmation that Judge Sarokin was wrong, one need only look to the epilogue of the Flamer and Bailey story. Both defendants appealed directly to the U.S. Supreme Court again. The Court refused to grant certiorari in either the Bailey or the Flamer cases, and the Court refused to stay their executions. Both men were executed in late January 1996. Certainly the U.S. Supreme Court thought little of Judge Sarokin's dissent. Unlike Judge Sarokin, the Justices of the Supreme Court thought enough was enough and that it was time to allow the State of Delaware to operate its own criminal justice system. But Judge Sarokin was willing to overturn the considered judgments of the juries, of the Delaware Supreme Court, of the U.S. Supreme Court, of two Federal district court judges, and of the majority of his colleagues, because the jury did not think about the death penalty the way he wanted them to, and because the judge asked the jury a question. Judge Sarokin believes that Federal judges have a roving mandate to interfere in the operation of the State criminal justice system, just because he found a technicality that no one showed had any influence on the outcome of the trial. Judge Sarokin suffers from the same problem that Judges Beaty and Baer do--an inability to understand their role as judges. They have not been appointed as Federal judges to legislate from their benches or to act as philosopher-kings. If Judge Sarokin does not like the way that Delaware has chosen to operate its criminal justice system, then he should be running for Governor of the State--but the last place he should be imposing his policy views is from the Federal bench. Of course, as I said earlier, judicial activism of this sort is not restricted solely to judges appointed by Democratic Presidents. In the Flamer case, Judge Timothy Lewis, who was appointed in the waning days of the Bush administration, also argued that the capital sentences should be overturned. Judge Lewis agreed with Judge Sarokin that the consideration of the invalid factor had an injurious effect on the defendant, even though no such influence on the verdict was shown, and that the judge's interrogatories prejudiced the jury. Judge Lewis also questioned why, quoting Justice Blackmun, ``We should no longer tinker with the machinery of death.'' He called the Nation's system of capital punishment cluttered and confusing and ultimately questioned whether it comported with fundamental principles of liberty and due process. While one Reagan judge, Judge Carol Mansmann, also joined Judge Lewis, it should be noted that the rest of the Reagan-Bush appointees, joined by one Carter judge, correctly upheld the imposition of the death penalty. The two judges appointed by President Clinton--Judges Sarokin and McKee--did not. I believe that Judges Lewis and Mansmann were wrong, just as Judge Sarokin was wrong. But I believe that their mistake is not representative of a pattern and practice of activism, as it is on the part of Judge Sarokin. If there can be any more doubt about the activist character of Judge Sarokin, one can find proof in his other opinions. Although I do not have the time to discuss other decisions in detail, I would just note the case of United States v. Baird [63 F.3d 1213 (CA3 1995)]. In Baird, Judge Sarokin, dissenting, argued that administrative forfeiture of drug proceeds preclude criminals from being prosecuted under the double jeopardy clause. That case involved the seizure of a criminal's drug factory, drug stockpiles, and ill-gotten drug proceeds, in the amount of $2,582. The Drug Enforcement Administration carried out an administrative forfeiture of the drug proceeds. Following the DEA's administrative forfeiture, Baird was then indicted for a variety of Federal drug and drug-related crimes. For Judge Sarokin, the administrative forfeiture was enough to opine that if Baird, the drug-producer, had owned the money, then the first proceeding was enough to bar the Government from prosecuting him for the drug crimes. Judge Sarokin relied on a Supreme Court case, Austin versus United States, that did not even apply to the double jeopardy context. Judge Sarokin showed a willingness to stretch Supreme Court precedent beyond its proper bounds and to read the double jeopardy clause expansively at the expense of law enforcement, and to the benefit of illegal drugmakers and dealers. Incidentally, Baird never even claimed ownership of the money, making Judge Sarokin's result all the more strange. In Judge Sarokin's strange universe, if the Government convicts a criminal of drug selling, it cannot require the criminal to forfeit the money made through his illegal activity; but if the Government first tries to forfeit the proceeds, then it cannot prosecute the drug seller. Again, Judge Sarokin has shown a willingness to interpret the Constitution expansively to defeat society's legitimate interest in combating crime and maintaining public health and safety. Judge Sarokin, who I understand will soon be taking senior status, is perhaps second only to Judge Barkett in his continuation of an activist, soft-on-crime approach upon reaching the Federal bench. In 1994, by a vote of 61 to 37, the Senate confirmed Judge Barkett--a nominee that no Republican would have appointed to the Federal bench. I opposed her nomination because, time and again, Judge Barkett as a member of the Florida Supreme Court erroneously had favored lawbreakers and criminals over the interests of the police and of the community to enforce the law. The full record of my concerns is set forth in the March 22, 1994, Congressional Record. As I declared there, there were just too many cases, across too wide a range of subjects, where Judge Barkett had stepped beyond the line of responsible judging. In particular, I warned that Judge Barkett should not be confirmed because of her unduly restrictive view of the fourth amendment that would hamstring the police, especially with regard to controlling drugs. I highlighted the case of Bostick versus State, a case involving cocaine trafficking, in which Judge Barkett adopted an across-the-board per se ban on bus passenger searches, even though Supreme Court precedent clearly called for an analysis of the search based on the particular circumstances present. The Supreme Court of the United States had to grant certiorari and reverse Judge Barkett's soft on crime decision. I am sorry to say that Judge Barkett's misunderstanding of search and seizure law has only continued. Only now, thanks to President Clinton, her opinions apply to all prosecutions brought in Georgia and in Alabama as well as in Florida. Her ongoing willingness to raise groundless fourth amendment arguments to prevent our Nation from combating the damage that drugs are causing our society is evident in two recent opinions, Merrett versus Moore [Feb. 26, 1996], in which Judge Barkett dissented from denial of en banc review, and in Chandler versus Miller, [73 F.3d 1543 (CA11 1996)], in which Judge Barkett again dissented. In Merrett, Florida law enforcement officials and the Florida Highway Patrol set up roadblocks on four Florida highways for the chief purpose of locating illegal drugs. On two successive days from 4 p.m. to 10 p.m., Florida police briefly stopped vehicles, checked for obvious safety defects, and examined drivers' licenses and vehicle registrations. While this examination was undertaken, the police used dogs to sniff the outside of each car for illegal drugs. If a dog alerted to the presence of drugs, the car was pulled out of line. As Judge Edmonson, a Reagan appointee, noted for the majority, these searches were minimal and the entire encounter between police and the motorist lasted only a few minutes. Police also moved traffic through without stopping cars when long backups developed. Of the 2,100 vehicles that passed through the checkpoints and of the 1,300 vehicles stopped, there were few long delays, one car overheated, one minor accident occurred, the dogs scratched a few cars, and one person was bitten by a dog. Judge Edmonson, joined by Judge Birch, a Bush appointee, and Judge Hill, a senior judge appointed by President Ford, properly held that the roadblocks were reasonable under the fourth amendment's search and seizure clause. The intrusion of the search was minimal and was far outweighed by the State's interest in enforcing its traffic laws and in preventing the flow of drugs into our Nation. Indeed, recognizing these facts, the Supreme Court has approved reasonable roadblock searches before for the purpose of checking sobriety, [see Michigan Department of State Police v. Sitz [496 U.S. 444 (1990)], and for border patrols [see United States v. Martinez- Fuerte, 428 U.S. 543 (1976)]. But the persuasive reasoning of Judge Edmonson and his colleagues, the decisions of the Supreme Court, and the need to stem the flow of destructive drugs into our society were not enough for Judge Barkett. Judge Barkett voted to grant review of the decision before the entire eleventh circuit, and she wrote a dissent joined by Judges Kravitch and Hatchett, both Carter appointees, when she lost. Fortunately, the six Reagan-Bush appointees, the one Ford appointee, and one Carter appointee voted to keep Judge Edmonson's ruling in place. Continuing her unduly restrictive view of the fourth amendment's application to drug searches, Judge Barkett declared: In my view, permitting law enforcement to stop every vehicle at a roadblock based on the mere possibility that one or more of the vehicles passing through will contain illegal drugs--evidence of a crime completely unrelated to highway safety--is * * * intolerable and unreasonable. I would have thought that drug use would be a great threat to highway safety, and as I have noted, the Supreme Court has already held that sobriety checkpoints--alcohol is, after all, a drug--are constitutional. Judge Barkett and her dissenting colleagues also should examine the text of the fourth amendment, which she never even quoted in her opinion. The fourth amendment states that ``The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.'' Unlike the judges in the majority, Judge Barkett never asked whether the roadblock searches were reasonable. Instead, she sought vainly to say that using roadblocks to search for drugs was patently illegal. But most judges of the courts of appeals, most Justices of the Supreme Court, and, I think, most of the American people, would agree that the minimal search involved here--a stop for a few minutes combined with a sniff by a dog--is certainly reasonable, especially when balanced against the need to combat the influx of destructive drugs in our society. Judge Barkett also continues to remain suspicious of the efforts of police to defend our communities against crime and against drugs. In Merrett, she declared that she believed that Florida's claim that the roadblock was also used to check for traffic violations was only a pretext for an illegal search for drugs. In Judge Barkett's mind, this raised the fundamental concern that officers will attempt to evade the requirements of the fourth amendment by using a traffic stop to detain someone for a purpose that would not lawfully support a detention. I believe that our police officers are good people who are laying their lives on the line to protect our lives, our families, and our communities. Like Judge Baer, Judge Barkett sees our law enforcement officers as using any pretext they can to conduct illegal searches. I see them asking for a minimal amount of time to ensure that drugs are not being transported for distribution to our children and to our poor. Judges like Judge Barkett and Judge Baer are all too willing to place legal technicalities as obstacles before our law enforcement officers, who are only trying to take criminals off of the street. Furthermore, as the majority in the original case noted, and as the Supreme Court has made clear before, roadblocks are often more respective of fourth amendment values because they are random. They do not rely upon the discretion of the police officer to choose whom to stop and search--all are treated the same. Roadblocks, in the Supreme Court's words, avoid the standardless and unconstrained discretion present in individual stops. [Delaware v. Prouse, 440 U.S. 648, 661 (1979).] I presume that Judge Barkett also would find fault with the metal detectors at airports and government buildings, or stops at the border, or customs searches, because even though they are all minimal intrusions into an individual's privacy, they subject everyone to a search without a warrant. Fortunately, Judge Barkett's feelings on this point conflict with Supreme Court precedent, and even though Judge Barkett seems to have always had trouble following the precedent of the Supreme Court, most other Federal judges do not, including the Republican-appointed judges on the eleventh circuit. Merrett is not the only case in which Judge Barkett has been willing to place obstacles before our Nation's war on drugs, a war in which the administration has been AWOL--absent without leadership. In Chandler versus Miller, a January 1996 case, Judge Barkett again dissented in a case involving drugs and search and seizure. Georgia passed a statute requiring drug testing of political candidates and nominees for State offices. In cases such as National Treasury Employees v. Von Raab [489 U.S. 656 (1989)], Skinner v. Railway Labor Executives' Association [489 U.S. 602 (1989)], and last Term's Vernonia School District v. Acton [115 S.Ct. 2386 (1995)], the Supreme Court has declared that courts must balance the individual's privacy expectations against the Government's special interests in preventing drug use in that area. In these cases, the Supreme Court has upheld drug testing of drug agents, of railway workers, and of high school athletes. For Judge Barkett, however, these were all narrow exceptions to a general rule in her own mind that no one should be subject to drug testing, including candidates for high public office. In her mind, controlling drug use among the highest public officials involves no immediate or direct threat to public safety, and that there is no showing that waiting to obtain a warrant based on individualized suspicion would cause any dire consequences. In Judge Barkett's words, ``[t]here is nothing so special or immediate about the generalized governmental interests involved here to as to warrant suspension'' of the warrant requirement. But as the majority correctly held, the Government's interest in preventing drug use among its highest public officials is a powerful one. In the majority's words, the people of a State place their most valuable possessions, their liberty, their safety, the economic well- being, ultimate responsibility for law enforcement, in the hands of their elected and appointed officials, and the nature of high public office demands the highest levels of honesty, clear-sightedness, and clear-thinking. We permit drug testing of drug agents; we permit drug testing of railroad engineers; we even permit drug testing of high school athletes. Judge Barkett would have us believe that the damage that would be caused by drug use in these situations is far greater than that caused by drug use by legislators, by executive branch officials, and by judges. Judge Barkett's reasoning strikes me as unreasonable, and her efforts again appear designed to restrict the tools that our society can use to combat drug use, even in the face of contrary Supreme Court precedent. Perhaps Judge Barkett's position on the fourth amendment in Chandler was a reasonable one. But no one can claim that her further statements in that case had any grounding in Federal constitutional or statutory law. Not only did Judge Barkett argue that the Georgia statute was an illegal search, she also argued that it was a violation of the candidates' first amendment rights. I am not making this up. If you don't believe me, Mr. President, listen to her own words. ``This statute is neither neutral nor procedural, but, * * * attempts to ensure that only candidates with a certain point of view qualify for public office.'' Judge Barkett interprets the drug testing requirement as an attempt to ``ban[] from positions of political power not only those candidates who might disagree with the current policy criminalizing drug use, but also those who challenge the intrusive governmental means to detect such use among its citizenry.'' Such reasoning reeks of the very worst of the moral relativism that characterizes liberal judicial activism. Judge Barkett appears to believe that if one is in favor of drug legalization or against drug testing, why, one must be a drug user. In fact, Judge Barkett appears to believe that drug use is an ideology and that drug testing is, in her words, ``a content-based restriction on free expression.'' If that is so, then does Judge Barkett believe that any effort to prevent drug use is an attempt to suppress the first amendment rights of drug users, and that drug use itself is a form of expression? Mr. President, this is the 1990's, not the 1960's; America has not been transformed into a Woodstock from sea to shining sea. The first amendment does not protect illegal, harmful conduct, and it does not permit people to plan and encourage illegal conduct. Although this administration has been absent without leadership in the drug area, the American people and the Congress are not. We are determined to prevent drugs from ruining the lives of our young people, and the tolerant attitude of some of the Clinton administration's nominees, who equate drug use with protected first amendment expression, will not stand in our way. Why is this so important? As a practical matter, the Senate gives each president deference in confirming judicial candidates. A Republican President would not nominate the same judges that a Democrat would, and vice versa. The President has been elected by the whole country and, while this President has been unable to put all of his choices on the bench, there are hundreds of judgeships to fill in order to keep the justice system functioning. Indicia of judicial activism or a soft-on-crime outlook are not always present in a nominee's record. But, in the cases of Judge Sarokin and Barkett, there were crystal clear signs of their activist mindsets. Yet the President appointed these two judges and pushed hard successfully to get them through the Judiciary Committee and the Senate, despite opposition, largely on this side of the aisle. We can now view the products of the President's choices. We do not just have two trial judges, Judges Baer and Beaty, who have trouble understanding the role of the Federal courts in law enforcement and in the war on crime. We now can see that President Clinton has sent liberal activists to the Federal appellate courts, where their decisions bind millions of Americans. Judge Sarokin's opinions, if they garner a majority, are the law in Pennsylvania, New Jersey, and Delaware. Judge Barkett's opinions, if they garner a majority, are the law in Florida, Georgia, and Alabama. Criminals whom they would set free on technicalities can strike again, anywhere, anytime. This makes all Americans potential victims of these judges and their soft-on-crime outlook. The general judicial philosophy of nominees to the Federal bench reflects the judicial philosophy of the person occupying the Oval Office. We, in Congress, have sought to restore and strengthen our Nation's war on crime and on drugs and to guarantee the safety of Americans in their streets, homes, and workplaces. For all of the President's tough-on-crime talk, his judicial nominations too often elevate the rights of the criminal above the rights of the law-abiding citizen, and undermine safety in our streets, in our homes, and in our workplaces.

Mr. HATCH

Mr. HATCH. Mr. President, I was dismayed to hear the comments our colleague, Senator Pryor, just made with reference to the Judiciary Committee's deliberations on the GATT/pharmaceutical patent issue. My colleague was correct in stating that I wrote him a letter in December indicating the committee would hold a hearing and a markup on this issue. In fact, we held a hearing on February 27 on the specific issue he raised, and 1 week later, March 5, held another hearing on the more general issue of pharmaceutical patent life at which the GATT issue was also commented upon by a number of individuals. Perhaps my colleague was not aware, that, on Tuesday, I notified the committee that this would be a possible agenda item for markup this week. However, it was not possible to forecast the arduous, time- consuming immigration markup, which extended much longer than any of us had anticipated. In addition, Senator Kennedy, the ranking member of the Labor Committee and a top member of Judiciary, expressed concerns about how the Judiciary Committee's agenda was conflicting with the FDA reform markup this week in Labor. Accordingly, at the outset of the Judiciary Committee's deliberations on the immigration bill this morning, I made the following statement: Finally, let me say a few words the Committee's consideration of how certain GATT transition rules should apply to the generic drug industry--this is the so-called GATT patent issue. This was the subject of a lengthy floor debate on December 7th and a Committee hearing on February 27th. As I have stated on a number of occasions, my preference is to achieve some sort of compromise on the issue. But this is a very complex issue that involves the confluence of three interrelated statutes: the GATT implementing law, the Federal Food, Drug, and Cosmetic Act, and the patent code. I am aware that there are discussions taking place in an attempt to fashion a compromise proposal. I have directed my staff to continue to facilitate these discussions. Frankly, the Immigration Bill has taken longer that any of us would have liked or could have planned for. It became apparent earlier this week that we would not have time to complete a GATT mark-up before Friday. We still have many amendments to dispose of on the Immigration Bill. I also know that Chairman Kassebaum's Labor Committee is in the middle of the FDA reform mark-up and that Senator Kennedy wanted to closely coordinate our schedules today. Other members have scheduling conflicts as well. For these reasons, I am announcing my intent to schedule mark-up on the GATT issue when we return from recess. I would like to consider a compromise that most of us can support. I don't think the Pryor bill meets that test. I hope we will continue working toward an agreement over the recess. I wish to make amply clear for the record that Senator Pryor's staff had informed me that he did not anticipate, nor wish for, a markup on this issue in Judiciary, but rather he wished to pursue a dialogue on the floor. Thus, I was heartened to hear his remarks just now in which he stated he wanted the Judiciary Committee to mark up a bill. Before closing, I would like to address one specific comment Senator Pryor made. Those who advocate change in the law argue that the Congress clearly intended to achieve the results of the Pryor/Chafee/ Brown amendment when we originally passed the Uruguay Round Agreements Act (URAA). They continue to argue to this day that it was merely a ``technical oversight'' which led to this ``unfair'' outcome. I find it strange that not one person has come forward, that there has been not one shred of evidence, not one memo, nor paragraph of a memo, nor even a sentence in any document supporting Senator Pryor's contention. In fact, the Court of Appeals for the Federal circuit, a completely disinterested party, could find no definitive evidence on this issue at all. In the November, 1995 Royce decision, the Federal circuit stated: The parties have not pointed to, and we have not discovered, any legislative history on the intent of Congress, at the time of passage of the URAA, regarding the interplay between the URAA and the Hatch-Waxman Act.'' I do not wish to rehash the arguments related to the GATT at this time. It is an extraordinarily complex issue, and is not as simple as it might appear to some. It is no secret to this body that I am not supportive of the Pryor amendment as drafted in December. What I do want to emphasize is that a fair resolution of this issue remains my priority and, as I said at the markup this morning, I am hopeful we can fashion a compromise that is acceptable to the majority of Senators. I hope that my colleagues Senators Pryor, Brown and Chafee, will be willing to work with us in that regard and I look forward to their suggestions for areas in which a resolution can be crafted.

Mr. HATCH

Mr. HATCH. Mr. President, the February, 1996 issue of the American Legion Magazine contains a column entitled, ``We Will Continue To Stand By Our Flag,'' by Daniel A. Ludwig, national commander of the American Legion. As my colleagues know, the American Legion, other veterans and civics groups, the Citizens Flag Alliance, and countless individuals undertook an effort to pass a constitutional amendment authorizing protection of the American flag. There was nothing in it for any of the participants in that great effort. This effort fell just short in the Senate. But, I note that in 1989 an amendment received 51 votes; in 1990, 58 votes; and in 1995, 63 votes. In the other body, the effort went from falling short in 1989 to an overwhelming win in 1995. I said in December that the effort to enact a constitutional amendment authorizing protection of the American flag will be back. And so it will, as the column by Commander Ludwig makes clear. I ask unanimous consent that the column be printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, just short of a year ago, this country was rocked by an attack on the Alfred Murrah Federal building in Oklahoma City, OK. In the wake of that horrible, tragedy, this body took up antiterrorism legislation. I fought for the inclusion of meaningful habeas corpus reform legislation in the Senate bill over the initial hesitation of President Clinton. The House bill contains identical language. We will shortly be delivering a conference report to the President for his signature. At long last, after well over a decade of effort, we are about to curb these endless, frivolous appeals of death sentences. I might add that this is one of the most important criminal law changes in this country's history, and it is about time we get it on track. To be sure, there are many other important antiterrorism measures which will be included in the final terrorism bill including increased penalties, antiterrorism aid to foreign nations, plastic explosives tagging requirements, and important law enforcement enhancements. But let us make no mistake about it--habeas corpus reform is the most important provision in the terrorism bill. In fact, it is the heart and soul of this bill. It is the only thing in the Senate antiterrorism bill that directly affected the Oklahoma bombing. If the perpetrators of that heinous act are convicted, they will be unable to use frivolous habeas petitions to prevent the imposition of their justly deserved punishment. The survivors and the victims' families of the Oklahoma tragedy recognized the need for habeas reform and called for it to be put in the bill. The Clinton Administration, which initially opposed meaningful habeas corpus reform, came to its senses and the President himself said he supported our habeas reform proposal. The antiterrorism bill, with the Hatch-Specter habeas proposal passed this body in an overwhelming vote. Most of those familiar with capital litigation know that support for true habeas reform--support for an end to frivolous death penalty appeals--is the most authentic evidence of an elected official's support for the death penalty. It is against this backdrop that I was surprised to learn recently that on the eve of House debate on the antiterrorism bill--a bill that includes this important habeas reform proposal--the White House had sent emissaries to key Members of the House to lobby for weakening changes to the habeas reform package. Former White House Counsel Abner Mikva, accompanied by White House staff, met with key Members of the House and proposed that the bill be amended to essentially restore the de novo standard of review in habeas petitions. This would have gutted habeas corpus reform by allowing Federal judges to reopen issues that had been lawfully and correctly resolved years earlier. I had thought we had a President who was committed to meaningful habeas reform. When I first learned of this effort, I was surprised. After all, President Clinton promised that justice in the Oklahoma bombing case would be swift. Indeed, he recognized that an end to frivolous death penalty appeals was critical when he said, [Habeas corpus reform] ought to be done in the context of this terrorism legislation so that it would apply to any prosecutions brought against anyone indicted in Oklahoma. [Larry King Live, June 5, 1995]. But then I began to consider all of the steps this President has taken to undermine the death penalty. For example, President Clinton vetoed legislation late last year which contained language identical to the terrorism bill's habeas corpus proposal. Veto message to H.R. 2586, the temporary debt limit increase, Nov. 13, 1995. Prior to that, in 1994, the Clinton Justice Department lobbied the Democrat controlled House for passage of the so-called Racial Justice Act. This provision, in the guise of protecting against race-based discrimination, would have imposed a quota on the imposition of the death penalty. It would have effectively abolished the death penalty. When the Senate refused to accept this death penalty abolition proposal, President Clinton decided to issue a directive implementing a so-called Racial Justice Act-type review of all Department of Justice decisions involving the Federal death penalty. [Wall Street Journal, July 21, 1994]. On March 29, 1995, Attorney General Reno issued the directive. Ironically, the Clinton Administration did not see fit to provide the victims' families in death penalty eligible cases with any right to petition the Department on the issue of whether the death penalty should be sought. [A.G. Reno directive on title 9 of the U.S. Attorneys' Manual, March 29, 1995]. To further gauge President Clinton's position on the death penalty and the streamlining of habeas corpus reform, one should consider whether his Department of Justice has supported State efforts to impose capital sentences. According to testimony provided to the Senate Judiciary Committee, the Clinton Justice Department considers the fact that a case involves the death penalty as a factor against filing amicus briefs in support of the State. [Testimony of Paul Cassell, Associate Professor of law, University of Utah, November 14, 1995]. The Bush Administration filed briefs in support of the State in 44.4 percent of the cases on appeal where a defendant's death sentence was being challenged. Briefs were filed in 42.9 percent of these cases and in 1991 and in 37.5 percent of the cases in 1992. In 1994, the Clinton Justice Department failed to file a single brief in support of States trying to carry out capital sentences. Many of these cases presented opportunities to protect the Federal death penalty but the Clinton administration sat on its hands. On March 14, President Clinton said that, in his opinion, the terrorism bill's habeas corpus provision is not as good as it could be, and that there are some problems in the way that it's done but that he may go along with the version contained in the terrorism bill. [U.P.I. March 14, 1996]. Ironically, President Clinton's support for the terrorism bill seems to be dwindling as the likelihood for passage of habeas corpus reform seems to be increasing. Some Democrats appear to be preparing to scuttle the bill by arguing that it may not go far enough. Indeed, one of my colleagues on the other side of the aisle has gone so far as to call the House terrorism bill useless. We now hear that there is talk within the White House of a possible veto threat unless the terrorism bill is changed. What I find interesting is that most of the provisions the President and his brethren are flexing their muscles over were not in the administration's original terrorism bill. For example, the President has been critical of the House's bipartisan votes to drop a ban on so- called cop killer bullets and a provision allowing law enforcement to conduct roving wiretaps. On February 10, 1995, Senator Biden introduced the administration's original terrorism bill, S. 390. Neither of these provisions were contained in S. 390. Indeed, the House-passed terrorism bill is more comprehensive than the President's original bill. So I ask my colleagues: Why is a bill which is substantially similar to--in fact broader than--the original Clinton-Biden bill of 1995 useless in 1996? Could the fact that the final terrorism bill will contain tough, true habeas corpus reform be what's really at issue here? President Clinton's newfound tough on crime rhetoric must be balanced against his administration's record of hostility toward true habeas corpus reform. In a few weeks, the Congress will deliver to President Clinton a tough terrorism bill which will contain our habeas corpus reform provision--a provision to end frivolous death penalty appeals. This reform measure has already been vetoed once and President Clinton has tried to weaken it. If he chooses to veto the terrorism bill, that will be a decision he and the families of murder victims across this country will have to live with. But let's not kid ourselves about why he may do so. To borrow a phrase--keep your eye on the ball. The ball here is habeas corpus reform.

Mr. HATCH

Mr. HATCH. Mr. President, we have put the crown jewels of Utah wilderness in this bill. I happen to believe that when you have the whole congressional delegation, the Governor, the legislature, the schools, the farmers, and virtually every organization except these environmental extreme organizations, all for this bill in a State that has protected its beauty itself, we do not need to be told by some Senator from New Jersey how to protect our State--or from any other State. We know how to do it. We know it is beautiful, and we are going to keep it that way, even while it is subject to these environmental laws. It is almost offensive what has been going on here. If you look at what they are recommending--these low-lying sagebrush lands along highways--where is the silence and solitude there? It is crazy. When we start ignoring our colleagues who have gone through a process in this manner in a reasonable, decent, honorable way, having had to bring the one side along and having had to bring the other side along-- and, now we are going to ignore all this because we want to do some national environmental agenda? That is when this particular body is going to have a lot of troubles in the future. That is all I can say. I yield the floor.

Mr. HATCH. Mr. President, during the debate, the Senator from New Jersey provided us with his viewpoint on many subjects related to the proper management of our Nation's public lands. I respect him for his positions, for his contribution to ensuring that one of this country's many natural resources--our public lands--are properly and efficiently managed in an environmentally sensitive manner. However, to be perfectly frank about it, he is just plain wrong when it comes to our bill to designate wilderness in Utah. I do not believe he has a full appreciation for the difficulty these small communities in my State have with maintaining all of this land as wilderness. The longer Congress postpones action on the Utah Public Lands Management Act, the more economically strapped our small towns become. It stands to reason that you cannot take a primary resource out of circulation within an economy and expect that economy to flourish. The land resources in rural Utah are of the utmost importance to an economy whose major industries include mining, farming, and ranching. My friend from New Jersey says our rural Utah counties can live off tourism dollars. Certainly, the tourism industry is vital to our State and important to the general welfare of our economy. But, it is not a panacea for the ills that plagued small town U.S.A. as the Senator pointed out yesterday. To give two examples, since nearly one-half million acres of land have been designated wilderness study areas [WSA's] by the BLM in San Juan County, UT--in Utah's southwestern corner--tourism has only increased from 2 percent in 1985 to 5 percent in 1995. In Millard County, on the western half of Utah, BLM designated acres as WSA's. Guess what the impact to their tourism industry was? Good guess--zero. In my opinion, these kinds of numbers are not going to save the local economy of any community no matter how much acreage is designated wilderness. I do appreciate his sensitivity to the manner in which Utah's public lands are managed--I really do. But, I would like to set his mind at ease. We must be doing a fairly decent job; for, after all, we have placed every single acre in BLM's inventory in a position, at least as far as the Senator from New Jersey is concerned, that each of them meet the wilderness criteria. That is a pretty decent record. However, Senator Bradley should worry about one matter, which was not discussed in any great detail yesterday, and that is the presence of State school trust lands now captured within these wilderness study areas. They are owned by the State of Utah on behalf of and for the benefit of Utah's school children--not New Jersey's school children, Utah's children. These lands were endowed by the Federal Government to Utah's schools at the time Utah became a State--100 years ago. The Utah School Lands Trust is not a recent development. But, given the selection of the WSA's, these trust lands have been unavailable for any major revenue producing activity since the WSA's were established due to the restrictions informally imposed on them by their neighboring lands. The Utah State Legislature has made a commitment to improving the management of the trust lands. These trust lands must produce more revenue if the State of Utah is going to meet its challenges in education. Utah currently ranks 49th in the Nation in terms of per pupil education spending. While I happen to believe that Utah stretches its education dollar further than just about any State and does an exemplary job of educating our kids, there is just no question that education financing continues to be our major concern. Two years ago, the legislature organized a new State body whose specific reason for being is to gain the greatest benefit from the school trust lands. This body, composed of private citizens, is serious about meeting the purpose for which they have been created, namely, to see that the trust lands produce. I remind my colleagues that wise investments are also part of good stewardship. I'm sure my friend from New Jersey knows that the State has every legal right to access these lands and to utilize them for whatever purpose they can, consistent with Federal and State laws. But, as I stand here today, I am convinced that, at some point down the road, the State is going to become so frustrated with Congress and this process that it will either sell a trust land section to a commercial entity or take steps to develop the land. The fact that no one wants a disturbance of that kind in or around a wilderness area is precisely why the trust lands have not been fully developed to date. Yet, the State cannot wait forever to develop the trust lands. The revenue from these lands is becoming increasingly important to our educational system. And, I am certain that these lands will be developed to benefit our schools if we don't pass this bill. This is why our bill provides for an exchange of these lands. We want to get the trust lands out of the wilderness areas. We want to establish a unity of title so there is no commingling of management styles. We want to erase this threat forever. That can only happen with passage of our proposal. By the way, the proposal my friend from New Jersey was championing yesterday that has been introduced in the House does not contain any reference at all to the school trust lands contained within the areas designated by that bill. It does not indicate how trust lands in H.R. 1500 will be dealt with under this measure. Are they just going to remain as enclaves within designated areas? Given his concern for pristine wilderness, he should worry about what could happen in the absence of a land exchange. But, let me discuss several points the Senator from New Jersey raised in his opening comments yesterday that need to be addressed. They are out in the public forum and deserve a brief response. First of all, he said that our release language, while an improvement over the original language, was ``a backdoor attempt to do what the original bill had intended to do but do it in a slicker way.'' Mr. President, I went into detail yesterday as to what the intent of our release is and is not. There is no funny business here, no tricks, no backdoor attempt. We are stating the full intent behind our language in the light of day. It is simple and straightforward. Nondesignated lands will slip back into the pool of normal BLM lands for continued management under BLM's existing authorizes, special designations, and the host of Federal legislative authorities which apply to public land management. Subsequently, they will be managed by the local BLM consistent with multiple uses defined in section 103(c) of the Federal Land Policy and Management Act and consistent with land use plans developed through section 202 of the same act. This language will allow the local BLM land managers, the ``on-the-ground professionals,'' to manage nondesignated lands for their wilderness values and characters utilizing existing BLM authorities. I trust they will do so. Our language asks the Federal manager to do his job, which is to manage the Federal lands in the best way possible. It is not up to that manager to decide if an acre of land should be deposited in the National Wilderness Preservation System--it is up to us. The land manager can use an existing authority to protect and preserve the wilderness--small ``w''--character of the land. That is expected when it's appropriate. But, he is not authorized, nor should he be, to use an existing authority to protect and preserve that pristine character to become future wilderness--big ``W'', or part of the wilderness system, at a future date. And, if that concept bothers the Senator from New Jersey then he should go back and change FLPMA or introduce a bill that requires another round of studies and review by the BLM--that is, if he wants to spend another 17 years and another $10 million of taxpayer funds. The release language was suggested by the ranking minority member of the Energy Committee. He said himself that he found the practice of managing land for a future designation as offensive as the prohibition on the practice of not managing it for its characteristics. If we go along with the Senator from New Jersey, then we should simply designate all 22 million acres in Utah as wilderness study areas and never derive any benefit from Utah's public lands. I do not understand why our language bothers the Senator from New Jersey so much. It is completely consistent with the scope and intent behind FLPMA. Besides which, the BLM wilderness inventory had a beginning. It should also have an end, like this issue, and hopefully before Utah celebrates its 200-year birthday in 2096. Second, the Senator indicated that ``four million acres of Utah's red rock wilderness will be left open for development.'' He then went on to list several areas that fall into this category. Several times yesterday it was asserted that the passage of our bill will lead to a massive immediate destruction of nondesignated lands. I do not know how many times I need to say this, but that statement is simply not true. In fact, it is offensive to me not only as one of the principal authors of this bill but as a Senator from Utah. Our critics continues to conjure up images of bulldozers lined up to advance on these BLM lands. Those who rely upon such images to advance their cause purposely ignore our sincere desire--not to mention our entire State government--to protect these lands from inappropriate and destructive activities. In addition, I mentioned the plethora of environmental laws and conservation regulations passed since 1964 that provide layer upon layer upon layer of protection for these lands. I will not go through the list again, but they are listed on the displayed chart. This argument should not even be a part of this debate. Yet, it continues to be used in the propaganda and rhetoric of the elite special interest groups. Unlike some, we have confidence in BLM's professional land managers to continue making objective decisions on the future uses of these lands in accordance with the law. By the way, I would would like to remind the Senator from New Jersey that we include in our proposal more than 16,000 acres in Fish and Owl Creek Canyon, more than 220,000 acres of the Kaiparowits Plateau, and more than 75,000 acres of the Dirty Devil area. Also, it might surprise the Senator to know that more than 80 percent of the acreage in our proposal is located near or below Interstate 70, the highway that divides Utah in half. John Sieberling, the former representative, once said that if he had it his way, he would make a national park of all the land south of Interstate 70, and if the Senator from New Jersey had his way he make the entire area wilderness. Let us be clear about this: our proposal protects Utah's red rock wilderness. Third, Senator Bradley referenced the possible development of coal leases within the Kaiparowits Plateau by the State of Utah. Yes, it is true that the State of Utah has identified these BLM lands--which are not contained in a wilderness study area--let us be clear about that: they are not being managed as wilderness--as one of 25 tracts of land it desires to exchange with the Federal Government. But, what the Senator did not say is that these leases are currently under suspension by the Department of Interior pending completion of an environmental impact statement that will determine if mining is ever going to be allowed in that area, Once again, as he did yesterday, the Senator is second guessing the activities of BLM's own personnel, only this time it deals with this EIS. He also accuses the State of Utah for mismanaging this acreage when there has been no determination that mining will ever occur there. While the coal is there, the ability to access it is still questionable. If mining ever occurs in the manner described yesterday by Senator Bennett, the leases will be subject to every pertinent Federal environmental law, whether the leases become State or not. No matter what happens to the ownership of the land, the Federal permitting process will continue. And, since the lease holder will need to construct an access road to the site, build a power line to the site, and construct certain facilities all on BLM land, Federal permits for each of these items will be required. So, the big environmental special interest groups will have plenty of opportunities to appeal this project every step of the way. Also, it is important to note that the site where the mine is projected to be located was rejected by the BLM during its initial statewide review process. The area was rejected because it did not meet wilderness criteria. Let me tell the Senator from New Jersey why. Because located within a 2-mile radius of the proposed site are 80 drill sites, 36 miles of roads, an airstrip, and several other surface disturbances symbolic of mining activity. Do not forget--this same site was initially mined in the late 1970's. Of the 40 acres required for the mine site within the lease holders total leased area, half of it-- more than 20 acres--has already been disturbed by mining activity. This site does not meet wilderness quality, but after seeing what is in some of the areas recommended by the special interest groups, I can see why they were confused with this site. This is not an issue about protecting wilderness value; this is an issue about preventing the responsible development of Utah's largest coal reserves. But, nevertheless, this bill has nothing to do with whether or not this area will ever be mined. Fourth, the Senator indicated our bill ``denies a Federal water right to wilderness areas designated by this bill.'' The Senator from New Jersey has evidently not read the language carefully. It is true that our bill does not create a Federal reserved water right for areas designated by this act. That is because we do not want to preempt State water law or to go around the State water appropriation system. But, it does not mean that the Federal Government cannot acquire a water right for designated wilderness areas. Utah water law follows the concept of the prior appropriation doctrine. It has been the basis for more than 90 years of State administration of surface waters. All major rivers and stream systems in Utah have water rights established under this principle. The result is a fine tuned system relying on diversions, return flow, rediversions, mingled with some storage reservoirs. Any new filing or alteration of the existing pattern of water use literally sends ripples throughout the total system. Unlike my colleague, we do not want to follow the typical Washington attitude that says we should preempt State law every time the Federal Government wants something from our States. Why can't we have the Federal Government abide by State laws once in a while when performing a Federal task? The Federal Government can obtain a water right in the State of Utah, and here is how it is done. Under Utah State water law, one must put a water right to ``beneficial'' use. That is, it must be applied to the land, to home use, or to other consumptive uses in order to maintain the right. However, there is an exception to the ``beneficial'' use requirement. Two divisions within the Utah Department of Natural Resources--the Division of State Parks and the Division of Wildlife Resources--can legally acquire a water right and leave a determined quantity of water in a stream--an ``instream'' flow, as it were--that then becomes that particular water right's ``beneficial'' use. Under our bill, the BLM is provided the ability to work cooperatively with these two State divisions to create an ``instream'' flow to avoid the potential dewatering of a wilderness area, in the unlikely event this occurs. The process would be: First, BLM acquires a water right from an upstream owner anywhere in the State--a rancher, an old mine site, a municipality, a private company, etc. Second, the right is assigned or deeded--transferred--to one of the two State divisions previously mentioned. Third, an instream flow is created. In the fall of 1994, this occurred. The Division of Wildlife Resources acquired a water right from a private corporation and created an instream flow for wildlife purposes on 82 miles of the San Rafael River in central Utah. The alternative to this language--an unqualified Federal reserve water right--would leave an ominous cloud over every existing water right in the State of Utah. There is no expressed or implied Federal reserve water right in our language, but that does not in any way prevent the Federal Government from acquiring a water right following the proper State procedures. Fifth, our language ``permits the State of Utah to exchange State lands for Federal lands of approximate equal value.'' The Senator from New Jersey then indicated that the value of the Federal lands involved may be greater in value than the State lands. Last December, the committee adopted our proposal to establish an exchange process whereby the value of the lands involved in the exchange would be determined based on national appraisal standards. While the BLM thinks the Federal lands are 5 to 10 times greater in value than the State lands, the State of Utah thinks the State lands, again captured within wilderness areas, are greater in value than the Federal lands. That is why the notion of a value, determined by recognized appraisers, and negotiated between the two parties, appears the soundest methodology to reconcile these differences. It does not matter, really, what either side is saying right now on the value question--it will be determined at a later time. The universe of lands to be exchanged has been determined. Since the State of Utah has no choice at all to determine which lands it would trade to the Federal Government, it only makes sense to allow the State to determine which Federal lands it desires. It has identified 25 different parcels, ranging form speculative coal deposits to speculative natural gas to potential real estate development, and all in the name of benefiting Utah's school children. The Senator is not correct. The Federal Government does not have to approve the transaction. Once the State makes an offer of lands to be exchanged, the two parties will sit down and conduct ``good faith'' negotiations on the various aspects of the trade. If a mutual decision is not reached, then the matter can be pursued in the courts. Concern was expressed regarding our earlier language about the lack of involvement by the Secretary in crafting each exchange. I believe the language we have included in the substitute amendment remedies that situation and makes the Secretary a full player in this exchange should he desire to be involved. And finally, the Senator indicated that our proposal contains ``broad exceptions to the Wilderness Act of 1964,'' meaning he believes we are rewriting the definition of wilderness by allowing certain activities and facilities to be undertaken within designated wilderness areas. This criticism goes to the so-called special management directives contained in our proposal. These special provisions really are not that special after all. There are plenty of examples of previous public lands legislation containing such provisions. A Congressional Research Service report, completed last July, concluded that the directives in S. 884 are comparable or related to similar language in 20 existing public laws and over 40 separate statutes adopted by Congress since 1978. What do these special management directives do? They allow those activities, based on valid existing rights and consistent with the Wilderness Act of 1964, to continue in areas designated as wilderness. They are included to address the potential ``on-the-ground'' conflicts that are unique to Utah's BLM lands, such as livestock grazing, the gathering of wood by Native Americans, and the presence of water facilities used for agricultural, municipal, and wildlife purposes, to name a few. The critical point here is that these rights predate the designation of land as wilderness. We are not rewriting the definition of wilderness. On the contrary, we are merely adhering to the principles of the 1964 Wilderness Act and the history of wilderness legislation in the past two decades. The Wilderness Act of 1964 does not abandon or ignore rights that predate wilderness designation, and practically every wilderness bill passed since the late 1970's contains special language to protect these rights and to address any site specific conflicts that might arise in the exercise of these rights. This language enables us to designate certain lands as wilderness that might be otherwise excluded under the 1964 act due to the conflict with valid existing rights. But I would ask the Senator the following questions regarding his concerns for our special management directives. Where was he when we passed the Okefenokee National Wildlife Refuge Wilderness Act, the Boundary Waters Canoe Area Wilderness Act, and the Florida Wilderness Act of 1984 that provided for the continued use of motorized boats or other watercraft in designated areas? Where was he when we passed the already mentioned Boundary Waters Canoe Area Wilderness Act that provided for the continuation of snowmobile use in designated areas? Where was he when we passed the Central Idaho Wilderness Act of 1980 that allowed the continued landing of aircraft and the future construction and maintenance of small hydroelectric generators, domestic water facilities, and related facilities in designated areas? Where was he when we passed the Endangered American Wilderness Act of 1978 and our own Utah Wilderness Act of 1984 providing for sanitary facilities in designated areas? Where was he when we passed the Colorado Wilderness Act of 1980 allowing motorized access for periodic maintenance and repair of a transmission line ditch in a designated area? And, where was he when we passed the Colorado Wilderness Act of 1993 providing for the use, operation, maintenance, repair, modification, or replacement of existing water resources facilities located in designated areas? The point is not to single out any of these laws for they did or did not do, but to merely demonstrate that special management directives are designed to address the on-the-ground conflicts unique to the areas designated by these laws. That is what we are providing for in our bill--those situations that are unique to Utah's lands. It is, as my colleagues will note, typical of the way we have developed public land policy in this body. I would also state for the record two other items. One, the Senator continues to mention the provision in our bill that provides for the continued use of motorboat activities in designated areas. First, these activities are only allowed if they predate the designation. And, second, and most importantly, our language was modified in the committee to ensure that it was consistent with the 1964 act. Also, he spoke of the language in our bill permitting low-level military overflights. Let me remind the Senator that this language was provided to us by the Pentagon, and is nearly identical to similar language included in the California Desert Act. We have added language requested by the Air Force that recognizes Hill Air Force Base as the gateway to the Utah Test and Training Range, located in Utah's west desert area, that is the only training facility in the United States on which every aircraft in the Air Force inventory trains. In closing, let me also say that our bill has been characterized as lacking large blocks of designated wilderness through which a traveler could wander from one time zone to another. Well, in our bill we may not extend any wilderness area beyond the mountain time zone, but it does have several large contiguous areas of spectacular wilderness all linked together in huge blocks of land. A visitor could never see another human being for days in these areas. These areas include: Desolation Canyon in central eastern Utah, through which the Green River flows--a total of 291,130 acres. This area may not cross any time zones, but it is located in three different counties. Fiftymile Mountain in south central Utah--as mentioned, this is on the Kaiparowits Plateau and consists of 125,823 acres. North Escalante Canyons--this area, once pursued to become a national park, totals 101,896 total acres. Book Cliffs--this area so appropriately named is a showcase of topography and wildlife, and consists of 132,714 acres, all of which is located in Grand County, UT. And, last but certainly not least is the San Rafael Complex--located in the heart of central eastern Utah and a topographer's dreamland, this area consists of 193,384 acres. If one looks at where some of the other areas designated by or bill are located, you will note that many of them are located near some of Utah's national parks to form blankets of pristine wilderness, such as the area near Canyonlands National Park, Capitol Reef National Park, and Glen Canyon National Recreation Area. Our legislation truly captures Utah's crown jewels of BLM lands, including high mountain ranges, deep river canyons, and red rock deserts. These are all reflective of Utah's premier scenic landscapes, and why we in Utah are not shy in stating that it took God 6 days to create Utah before he made the rest of the world with leftover parts. Again, I urge the Senator from New Jersey to take another careful look at the facts and at the specific language in the substitute amendment. I think he will find reassurances there that this is a good bill for Utah and a good bill for the environment. Mr. President, I have listened to this now for the past 3 days. I admire my friend from New Jersey. He is a fine person. He represents his State well. But, he does not know anything about Utah. However, I happen to think that the Governor of Utah, both Senators, all three Congress people, virtually everybody in the State legislature, everybody in the PTA, school districts across the State, and 300 Democrat and Republican leaders, political leaders, know just a little bit better, just a little bit more, about Utah than the distinguished Senator from New Jersey. I have heard about all I can bear to hear about silence and time, and having respect for them. We understand that. In Utah, we know what silence and time is because we have experienced them throughout our entire State. However, you do not get much silence and time in all of that low-lying sagebrush land along the highways which the other side has tried to put into this bill. They do not even know what wilderness is. We do. We have plenty of it in Utah. We put through the 800,000-acre Forest Service bill in 1984. I was a major mover on that bill. It has been a very good bill. We did it because Utahns agreed on what should be done. We love our State. To hear this, you would think that 20 million acres is going to be ripped up for shopping centers. The fact is that every one of those 20 million acres will be subject to all environmental laws, and rightly so, as far as we are concerned. But on this 20 million acres, you might be able to ride a bicycle, if you want to, which you cannot do in wilderness. Let me just say this. I have gone all over Little Grand Canyon. I have been all over the Black Box; Dirty Devil, and Sam's Mesa; North Escalante Canyons; San Rafael Swell; Book Cliff; Sid's Canyon; Desolation Canyon--beautiful areas that we put into this wilderness bill. Without this wilderness bill, they will not be wilderness. We think they ought to be. This business that we allow dams in this bill is misleading--they are not there. The polling data show that the majority of Utahns are for this bill, and once you explain to people in the polls that wilderness means no mechanization whatsoever, the support for those on the other side who are for 5.7 million acres drops off dramatically. But the majority are for our bill. With regard to the value of lands to be exchanged, that is going to be negotiated under this bill. Nobody is going to rip off the Federal Government. But our school kids are dependent upon this bill, which is why we will negotiate the value of these school trust lands. With regard to water, the Secretary can acquire water rights in the State through the State appropriation process. Can he not do that? With regard to the release language, there is no binding of a future Congress whatsoever in this bill. If they want to do wilderness, they can do wilderness in Utah again. But they are going to have an uphill battle because people in Utah are tired of being pushed around. With regard to the special management directives, I would say to my colleague that every major wilderness bill since 1978 has contained similar directives to take care of conflicts. We provide for that as well. On-the-ground conflicts have to be resolved, and over 20 separate bills passed by this body in the past two decades have done that. This is not something new. We have used the public process here. This matter has gone through two decades, hundreds of meetings, $10 million, and brought people together all over the State. The affected counties did not want any wilderness--zero. Then they agreed to 1 million acres. We brought them up to 2 million acres. The other side wants 5.7 million. One group wants 16 million acres in wilderness. The fact is we have 100 percent more acreage in this bill than the affected counties want, and about 60 percent less than what these people on the other extreme want. That is what compromise is all about. The fact of the matter is that this process has not been politicized. The Clinton administration came in and suddenly their BLM people started to decry all of the work that had been done through the years by other BLM people, and which was done in a reasonable and good way. They have politicized this process. There are volumes and volumes of data. The environmentalists have a 400-page book. We put the volumes and volumes of data here--two huge stacks this high--to show what we have gone through. Have most of these people who are criticizing this bill even been to these places? The fact is most of them have not been there. I ask unanimous consent for 1 more minute.

Mr. HATCH. Mr. President, I ask unanimous consent that I be given 5 minutes.

Mr. HATCH

Mr. HATCH. Mr. President, I want to compliment my colleague for his very good remarks and his ability to put into prosaic and also simple terms just what is involved here. In fact, both of us have been fighting for this for a long time. It is a moderate, reasonable approach. We really appreciate our colleagues who cooperated to help us on this, because it is not going to go away for us or for anybody else here until we get it resolved. It is a reasoned, moderate, decent approach. Mr. President, I ask unanimous consent to speak as in morning business.

Mr. HATCH. My friend from New Jersey, Senator Bradley, knows the difference between the BLM inventory and the study areas, which is why I really do not believe he really approved of this press release. He goes on to say that ``If the bill becomes law, it would permit the transformation of these lands from pristine wilderness to strip mines, roads and commercial development.'' Now, Mr. President, these statements are patently untrue. Someone in the Senator's office has been grossly misled, and unfortunately these untruths are being distributed to the press as though they are truths. In essence, these are the facts. First, the upper number of acreage involved in this debate is over 5 million, not 20 million. Second, nowhere in our bill does it say that no more wilderness can ever be designated in the future. Third, the land not designated as wilderness is still managed and controlled by the Federal Government in accordance with Federal land policy laws and regulations. I feel very safe in saying that there will be no environmentally irresponsible activity taking place on these lands now or in the future. Fourth, there has not been a new strip mine in Utah in many years, even decades, and there will not be even after this bill passes. Yet the opponents of this bill know that using the term ``strip mine'' conjures up all sorts of horrible images. Its use in this debate is simply not justified. In the same press release from Senator Bradley's office, he states that he will continue fighting for legislation to protect 17,500 acres along the New Jersey-New York border, the so-called Sterling Forest bill. The Senator from New Jersey is quite correct that the Sterling Forest bill passed the Senate without an objection. As public lands policy, I do not think the Sterling Forest bill was perfect, but I did not stand in the way of its passage. The Senators from New Jersey, New York, and surrounding areas wanted it. They represent their States. This legislation, the Sterling Forest legislation primarily affects New Jersey. If both Senators from New Jersey believe this legislation is in the best interest of their State and the country, I am going to defer to their judgment. Ditto the legislation for the Presidio and the Taos Pueble land exchange and the Arkansas-Oklahoma land exchange, et cetera, et cetera. So I am a little annoyed, when Senator Bennett and I propose legislation that has the support of our Governor, our legislature, our Utah association of counties, our educators throughout the State, and thousands of individual Utahns, that we are being second-guessed by Senators who do not represent this State. Keep in mind, look at how much acreage we are putting in and how it relates to the States in the northeast where a lot of the complaints are coming from. The fact is that we are being sandbagged not so much by our colleagues but by a well-orchestrated and well-financed campaign staged by huge, huge national environmental lobbies who are pursuing their own national agenda. Guess what. Their agenda is too much for the rural areas of my State. It would overwhelm them. We cannot support their agenda. And guess what else. The citizens of rural Utah and their local representatives cannot even afford to fight back. The National Resources Defense Council ran a half-page ad in the Washington Post that cost I believe $54,000. Good grief. For that amount Kane County School District could pay three schoolteachers. And that is only one of dozens of full-page ads in newspapers in this area and I guess other areas as well. Actor Robert Redford has been a spokesperson for the environmentalists. I admire Bob Redford's convictions, but let us face it; what TV station would not want an interview with Robert Redford? The deck is surely stacked against rural Utah. It is an area small in population and small in financial resources and big in tourism, and they have to provide the tax base to provide for all the emergency services--the helicopter services, the hospital services, the law enforcement services, et cetera--in some areas where they just do not have the moneys to do it. I urge my colleagues not to let these Utahns become victims of election-year politics, and I hope the President is not trying to show how committed he is to the environment on the backs of rural Utahns. I suggest to my friends in these other States that you are going to have peculiar problems in your States that you are going to have to deal with and you are going to have to have good-faith help from other Senators here to be able to resolve them. And we will try to help you resolve them as we Utah Senators always have. If we allow our rural States to be abused in this manner, if we allow this to happen, then the integrity of this body will have been brought to a new low. We will have allowed the Senate to become a blatant instrument for electioneering. While I am not so naive as to think that political speeches will not be given or that politics does not play a part, I cannot remember a time when the interests of a specific State on a parochial issue were sacrificed in that way. So I really urge my colleagues to support the Utah wilderness provisions in the substitute amendment offered by Senator Murkowski. Let me, at this point, have printed the press release, so people can read it for themselves. I ask unanimous consent that the press release from Senator Bradley's office be printed in the Record at this point.

Mr. HATCH. Mr. President, much has been made about Utahns and how they feel about these issues. But my colleagues might say they do not know what Secretary Babbitt has to say about our proposal. That makes 100 of us, because, frankly, I do not know. I do not know what specific problems the Secretary has with our bill. I do not know what his specific thinking is on the water language, the military overflight section, the section dealing with cultural and archeological sites found within designated areas on the State's school trust land exchange, proposed in the bill. I do not know how he might modify them. Honestly, I do not know. I have used the term AWOL, absent without leadership, on this floor in recent months to describe the administration's efforts in addressing our drug problem. This strategy of criticizing without putting anything positive on the table was also evident during consideration of the budget. It seems to be typical of the Clinton administration across the board. To date, the Interior Department has not even sent us the letter in which Secretary Babbitt says he will recommend a veto of the omnibus package if the Utah wilderness bill is included. I suppose the Secretary assumed that we would have the privilege of reading his letter in the newspaper, which of course we have. I do not know why the Secretary has not tried to work with us in order to come to an agreement on the many critical issues contained in this measure. We have been working on it, just this measure alone, for the last 20 years; but, in particular, writing it for the last 15 months. The Secretary has not attempted to contact me or to have his staff contact my staff to discuss how certain boundaries for designated areas might pose management problems for his agency, the application of wilderness criteria, the special management directives, or any other concerns he has with this legislation. It is true that last July, during the Energy Committee's hearing on our bill, Sylvia Baca, the Deputy Assistant Secretary for Land and Minerals Management for the Department of Interior, presented testimony on behalf of the Department and the Secretary on the bill as it was introduced. She included the following statement in her written testimony: ``If the bill were presented to the President in its current form, Secretary Babbitt would recommend that he veto it.'' What is even more amazing to me is that Ms. Baca's explanation for this position is based on the Interior Department's noninvolvement in the wilderness issue. The Department admitted that it has been AWOL on this issue, which is so important to our State. When Senator Craig asked her why the Department did not agree with the 1991 BLM recommendation for wilderness and why there was no attempt by the current administration to modify it, here was her response: Mr. Chairman, first of all I would like to point out that the Interior Department did not think that wilderness legislation was going to come forward. We did not come here today with a specific wilderness acreage number. I explained earlier that is because we have not been involved in the wilderness issue. The Secretary has done nothing but criticize. He has offered nothing in the way of constructive suggestions for improving the bill. This can only mean he intended to recommend a veto without regard to what the bill was going to say. This strikes me very much as a knee jerk approach to protecting the environment, and it is as bad as those who say we should have no environmental protection at all--and there are plenty in my State who would like that position. But we have had to be responsible here. We are the people who have had to handle this issue. We have been blasted by both sides, both extremes on this issue, for the last 20 years--but certainly the last few years in particular. Fortunately, my colleagues in the Senate have been more helpful and more sincerely interested in resolving this matter. They have offered constructive suggestions for changes, many of which we have incorporated in this bill, many of which have changed some of the areas criticized by the distinguished Senator from New Jersey. Apparently he has not read the bill yet, at least the substitute, but I hope he will. The bill before us today is not the same bill that was discussed last July. The bill we are debating today is a much changed bill. I am not sure it is better, but for those on the other side of this issue, on the environmental side, it is a better bill. It is fair. It is reasonable. And, above all, it is balanced. And we are trying to bring together everybody in Utah, not just one side of the equation. The Secretary now thinks this issue of such import that he is threatening a veto of this entire package of public land legislation. This does not square with Ms. Baca's testimony that the Department has just been too busy to focus on wilderness. We in Utah have been focusing on it for 2 decades. We have forged ahead in the 104th Congress, to attempt to resolve this issue once and for all. I would like to have the Secretary with us, I really would. I would have been pleased to work with him every step of the way. I really would. I know Senator Bennett feels the same way. But, even as other Senators have offered amendments in the Energy Committee and during informal discussions, Secretary Babbitt is content to be silent except for a veto threat. His position today is the same as it was in July, when Ms. Baca testified for the Clinton administration. This is a little like a country threatening the use of nuclear weapons without bothering to tell the world why it is attacking. It is time to move ahead with this legislation. The question of wilderness in Utah has gone on long enough. It has been studied to death. We are tired of it. It is time to designate new wilderness in Utah and to remove millions of acres from the regulatory limbo that they have been in. Let us give them legal status as wilderness, or responsibly manage them for other uses. I hope the Secretary will determine this is an important objective, because it is. Let me answer the question many of my colleagues have posed to me over the past few years and certainly in recent months and that is: Where are the citizens of Utah on this issue? Over the last several days we have seen advertisements in the Washington Post, Washington Times, Rollcall and the Hill magazine, claiming several things. First, there is the claim that 3 out of 4 Utahns support the so-called citizens proposal, that would designate 5.7 million acres of land as wilderness. Second, it is claimed that Americans are opposed to our program by a margin of 9 to 1. This first statement refers to the process the Utah congressional delegation and Governor Leavitt followed last year to obtain input from our local citizens. During our statewide regional hearings we requested that any further comments and proposals on the wilderness issue be submitted in writing or by telephone to Governor Leavitt's office. The Governor's office made a tally of these letters and phone calls. The inaccurate claims made in these newspaper advertisements by the opponents of this bill stem from the summary report developed by Governor Leavitt's office on these additional calls and letters. Rather than explain this discrepancy to my colleagues, I have asked Governor Leavitt to tell us in his own words the truth about the comments and calls in his office. His letter says this: Dear Senator Hatch: As you know, there has been substantial confusion about the public sentiment in Utah concerning the BLM wilderness issue. Please accept this letter as an explanation of the public response which my office received with respect to this issue. Personnel in the Governor's Office of Planning and Budget read, recorded, and responded to each of the 3,031 individual letters which were received last year and also categorized the 551 individual public testimonies received at the public hearings held in Utah last spring and summer. In examining this information, 51% of these letters and testimonies were in favor of no wilderness designation whatsoever or something less than the 5.7 million acre proposal. Certain groups throughout the state have publicly stated that support for 5.7 million acres of wilderness has ranged from 70% at a minimum, to upwards of 75%. In Utah and throughout the country, these numbers have been quoted in numerous newspaper stories and in various correspondence, yet no one has ever contacted my office for verification of the numbers. As is evident by the above numbers, this is most definitely a misrepresentation of actual public sentiment. In addition, there have been numerous surveys conducted on the wilderness issue over the last year. These surveys show that those respondents supporting 5.7 million acres have ranged from 19% to 36% depending on how the survey was structured and the way in which questions were asked. In these same surveys, 29% to 60% favored 2 million acres or less, also depending on survey structure and format of questions. It is important that lawmakers in Washington have factual information when making decisions as important as this. The information supporting the numbers I have offered is all on file in the Governor's Office of Planning and Budget and available for anyone with questions or concerns. Thank you for your commitment to this issue and for the work you have done in the pursuit of the resolution of the wilderness debate. Mr. President, this letter is clear enough. The figure utilized by the opponents of our measure misconstrues the information tallied by the Governor's office. It is interesting to note, this figure has mysteriously risen during this debate. First I saw a report that indicated the figure was 68 percent. Then it went to 70 percent. These recent adds have it at 73 percent, and one ad indicated it was 3 out of 4 Utahns, or 75 percent. Where are they getting these numbers? The second statement that Americans oppose the Utah wilderness bill by a ratio of 9 to 1 comes from a straw vote conducted by USA Weekend. This feature in many of the weekend's Sunday papers asked me to present my position on wilderness opposite Robert Redford, the well-known Utahn who owns the Sundance ski resort, which is located by the way, among some of the most beautiful acres in the world. At the conclusion of the article, the editors asked readers to write, phone or e-mail their votes for which position they supported. Similar to the barrage of advertisements, letters and phone calls and mailers my colleagues are receiving, the USA Weekend was bombarded with responses. In fact, the responses were 9 to 1 against the wilderness proposal. But USA Weekend was careful to point out that this is not a scientific poll. It was self-selected, which is a nice way of saying that people could vote early and often. The results of this call-in were, of course, skewed by those who responded to the urgings of national environmental organizations that they call in. In fact, just one of these groups, the Wilderness Society, has almost four times as many members as I have constituents. Think about that, four times as many members as Senator Bennett and I have constituents in our whole State. To their credit, they can mobilize these members at a moment's notice, which is what they have been doing on this matter for months-- for years now--but certainly over the past few weeks and certainly during that particular USA Weekend article. Let us talk about real polls. Dan Jones & Associates, Utah's most prominent and well-respected pollster, who has a tremendous record for accuracy, has conducted several surveys on this matter. Last April, he conducted a poll for Representative Waldholtz, which revealed the following: Survey for Representative Waldholtz, April 26, 1995--Dan Jones & Associates: 36 percent were for 1.2 million acres; 24 percent for 2.0 million acres. We are a little over 2 million acres in the substitute bill that is in the substitute amendment. 23 percent of those polled wanted 5.7 million acres. In other words, a lot more people were for 1.2 million acres or 2.0 million acres than there were for the 5.7 million acres, which received only 23 percent; 17 percent of those polled were not reported. Later in the year, in May 1995, Dan Jones conducted a poll for the Wilderness Education Project, and the results were generally the same: 21 percent preferred 1 million acres; 16 percent for 1.2 million acres; 20 percent for 1.9 million acres; 15 percent for 2.8 million acres; 19 percent for 5.7 million acres. It actually had gone down; 8 percent did not know. In June of last year, Dan conducted a poll for the Deseret News, which had the following results: 4 percent for zero acres, which means 4 percent did not want any wilderness at all in Utah; 18 percent were for 1 million acres; 26 percent for 1.8 million acres; 36 percent for 5.7 million acres; 7 percent for other, and 8 percent did not know. The highest percentage it has ever been for 5.7 million acres has been 36 percent, and then only after a massive publicity and advertising campaign done by these environmental organizations who have more money than anybody in Utah, certainly more than anybody on our side, and certainly more than the poor little people in these rural areas. The rural people, for the most part, do not want any or at least want very little acreage, but they have agreed to 1 million acres. And, now reluctantly they have gone along with the delegation--some of them have gone along with the delegation--for the 2 million acres but are very upset about it. In addition to these polls, KUTV Channel 2 and the Coalition for Utah's Future conducted a poll in May. Their results were similar to the Dan Jones polls. This survey was conducted from May 5 to 17, 1995, by Valley Research: 5 percent for zero acres; 12 percent for 1 million acres; 12 percent for 1.9 million acres; 10 percent for 2.9 million acres; 23 for 3.2 million acres; and 31 percent for 5.7 million acres; 8 percent do not agree with any. The summary of these polls is twofold. First, a majority of respondents in almost every poll, except for the respondents in the KUTV/Coalition poll, favored a designation of 2 million or fewer acres. In the Waldholtz poll, it was 60 percent; Deseret News, 48 percent; wilderness education was 57 percent. Second, the 5.7 million acre proposal was not supported by a majority of respondents in any poll: Waldholtz, 23 percent; KUTV, 31 percent; Deseret News, 36 percent; wilderness education, 19 percent. So, if my colleagues are looking for a definitive answer on how the majority of Utahns feel when it comes to a final acreage figure on BLM designation, these are the more reliable numbers. They are from reputable sources, polling organizations that use scientific methods, from both the left and the right. I think a far more accurate assessment of where Utahns stand on this issue should be a letter that we recently received, Senator Bennett and I, dated March 22, last Friday. This letter is on behalf of 300 of Utah's top officials--Democrats, Republicans, moderates, liberals, conservatives--300 of the elected officials in Utah, the vast majority of them: Dear Senator: You recently received a letter dated March 15, 1996 from a group of twenty calling themselves ``The Coalition of Utah Elected Officials,'' asking the ``Utah Congressional Delegation to withdraw S. 884 and reconsider the direction they have taken on wilderness.'' The letter states, ``most Utahns oppose S. 884.'' It further states that ``most local people consider this to be stridently anti- environmental legislation, not the carefully balanced package the Utah Congressional Delegation has been claiming it to be. The letter goes on to say this: These statements are not only preposterous--but blatantly untrue. The facts are that most Utahns do not want large amounts of acreage designated as wilderness in Utah. We the undersigned Democrats and Republicans strongly support Senators Hatch and Bennett in their balanced approach to Utah wilderness. In reality, the Utah State Senate endorsed the provisions contained in the Hatch-Bennett proposal unanimously (27 to 0)--I might add that the leader of the AFL-CIO in Utah, a member of the Utah State Senate, voted in support of this resolution. . . While the Utah State house voted 62 to 6, or 92 percent in favor. Across the State, elected commissioners in 27 of 29 counties support this bill. As this letter indicates, over 90 percent of Utah's elected county leaders support the Utah wilderness proposal now before the Senate. Early in 1995, the Governor of Utah and all members of the Utah Congressional Delegation specifically tasked the elected county officials in each county where wilderness is being proposed, to hold public hearings and from those public hearings, develop a proposal for wilderness designation on the Bureau of Land Management lands in the affected counties. Numerous public hearings were held in every county where lands were proposed for wilderness designation. The county officials then designated their proposals for designating lands as wilderness from the public hearings. In every county where lands were proposed for wilderness designation, the county officials made their recommendations based on what they heard at the hearings. Many county officials recommended more acreage than they knew their citizens wanted, but they knew they had to do so in order to make a bill acceptable to Congress. Some of those county officials have paid a dear political price for their recommendations. I can certainly affirm that. After the county officials made their recommendations, the Governor and Congressional Delegation held five regional hearings around the State. The environmental community, both in and outside Utah, was well organized and paid its partisans to testify. They even rented buses and vans to transport these people from location to location. And I can testify to that. We had almost the same people at every location, demanding to testify, saying the same things each time, and making it look like they had more numbers than they really did. The testimony they gave was based on emotion and not the requirements of the Wilderness Act itself. Their testimony ignored the professional recommendations of the BLM which based its proposals on the criteria of the 1964 Wilderness Act. The Governor and Congressional Delegation then developed what is now title XX of omnibus package S. 884. Many in Utah believe it contains too much acreage. It represents more than was recommended by the elected county officials who held the local public hearings. It represents more than the State legislature has recommended at least twice in the last 4 years by nearly unanimous votes. The people of Utah live in a State with approximately 67 percent Federal land ownership and another 13 percent State ownership, but managed under the Federally enacted State Enabling Act. Utah already has millions of acres in five National Parks, two National Recreation Areas, four National Monuments, 13 Forest Service wilderness areas, and BLM areas of Critical Environmental Concern. The unelected State Director of the BLM manages more of Utah than does its elected Governor. The BLM wilderness debate in Utah has dragged on for more than 15 years at a cost to taxpayers of over $10 million. We believe it is time to end the debate, pass the balanced Hatch-Bennett proposal and bring some peace and stability to people of Utah who must live daily with results of this debate. We the undersigned are a few of the elected officials in Utah who support Title XX of this bill. We want it passed and enacted into law. As I said, there are 300-some Democrat and Republican elected officials who have endorsed this letter. I ask unanimous consent that this letter and the attachments thereto be printed in the Record.

Mr. HATCH. Just last Sunday we read comments that one large newspaper in the State has editorialized against this. That is true. There is no doubt that they are very sincere in what they are doing. We have respect for them. But the other large newspaper, the other large major newspaper in Utah--we have five that are quite large--but the other major large paper in Utah that has written on this said, ``Let's get off dead center on the Utah wilderness debate.'' This is the Deseret News editorial. I will just read a little bit of it and then put it in the Record as well. Politics is supposed to involve the art of compromise. But that sensible notion seems to be lost on some members of Congress when it comes to deciding how much public land in Utah should be designated as wilderness. Consequently, unless some key figures in Washington can be persuaded to change their minds, more federal foot-dragging seems likely even though this controversy has persisted for two decades without a final decision. The latest development centers on Senator Bill Bradley of New Jersey. Bradley so strongly opposes the 1.8-million-acre proposal drafted by Utah's Republican-dominated congressional delegation that he may seek to scuttle an omnibus parks bill containing it even though such a move would thwart a pet project of his to protect the Sterling Forest along the New York-New Jersey border. If the Utah proposal survives that challenge, Interior Secretary Bruce Babbitt is threatening to recommend that President Clinton veto it. But then there's nothing particularly new about the extent and intensity of the emotions aroused by the Utah proposal and the opposing plan offered by environmentalist groups, which insist that 5.7 million acres be designated as wilderness. Washington is supposed to resolve such controversies, not let them fester. For that to happen, more flexibility is in order--which is exactly what the Utah congressional delegation has been doing. Last year it backed off from some provisions objectionable to the environmentalists involving roads, motorboats, and industries. Now there are indications some members of the delegation may be willing to designate more land as wilderness beyond the additional previously agreed to [which we have]. More than the whole State of Delaware; 63 percent of Connecticut; 41 percent of my friend's State of New Jersey; 41 percent of Massachusetts; 35 percent of New Hampshire; 34 percent of Vermont. That is what our proposal amounts to as compared with other States. But what flexibility, if any, is there on the part of the environmentalists? Though continuing to speak about the need for compromise, they doggedly insist that their 5.7 million proposal is a compromise. In sorting through the tangled and overheated controversy, Congress needs to keep a few points firmly in mind. First, there is no such thing as a Utah wilderness bill that will not antagonize some major segments of the population. Second, claims that most Utahns want more wilderness are based on self-serving interpretations of polls whose results are at best mixed and somewhat confusing. Third, the wilderness proposal being pushed by Utah's congressional delegation is an attempt to reach a reasonable middle ground between the 5.7 million acres demanded by the environmentalists and the little or no new wilderness acreage demanded by many officials and citizens alike in rural Utah. Fourth, the 1.8-million-acre proposal--with its various modifications and additions--is in line with the original recommendation from the Bureau of Land Management. Only years later did the BLM start waffling, opting for what it thought the Clinton administration wanted rather than for what the agency really thought was best. Fifth, as long as Congress declines to act, the BLM will continue to manage 3.2 million acres of Utah as if it were wilderness--but for no better reason than that this is the amount of land the agency studied for possible wilderness designation. That is more acreage than many Utahns want as wilderness. To let the dispute over Utah wilderness drag on year after emotion-filled year without a formal and final decision is a sorry reflection on some of this Nation's key figures. They were sent to Washington to act, not temporize. A decision in the direction of the proposal of the Utah delegation would be better than one in the direction of the environmentalists. But whichever way the vote goes, let us bring this long debate to an end and get on to other matters. Mr. President, I ask unanimous consent that the full editorial be printed in the Record.

Mr. HATCH. Mr. President, I have taken a long time here, but, frankly, this needed to be said. I realize that many people on the other side of the issue are very sincere people. I happen to believe in the environment myself. But I also know if we do not worry about human beings, there will not be an environment in the end, because sooner or later someone is going to rise up and an extremist on the other side is going to take control if we act like you cannot have balance on these matters. All the sincerity in the world does not make it right. I think we have done a very good job of crafting a bill here that brings the vast majority of all people together, while leaving the extremists still screaming at us; but even they will die down once the bill is passed, just like the two ends of the extremist spectrum who moaned and groaned about the Utah Forest Service wilderness proposal. We went through this with that bill, too, when we came up with 800,000 acres. Once it was passed, the screaming basically went away. Everybody understood that it was a good bill. Today, people are bragging about it all over Utah. The elected leaders and environmentalists are because we did a good job. I was here. I worked on it. I worked on it with Senator Garn and Congressman Hansen, and others. The fact is, we worked hard to get it done. That is what we have done here. I hope our colleagues will give some credibility to that. Perhaps the most misunderstood aspect of this bill has been the so- called release language. Let me take a moment to explain this in greater detail. The release language in the bill would release those public lands not designated wilderness by this legislation from any further wilderness study or review by the BLM. In other words, they would fall back into the pool of lands the BLM manages for various purposes but without the official status of wilderness. It would still be managed by the BLM. We would still be subject to the environmental rules and regulations. It just would not be wilderness, which means that it would not be land that only backpackers could walk on. There would be some reasonable use of the land, but very, very stringently controlled by the BLM. This is an important point. The land is still managed by the BLM. It does not go into private hands. Some would have you believe we are going to build a shopping center on every acre of that land. Under section 603 of the Federal Land Policy and Management Act of 1976, the Secretary of the Interior studies those roadless areas of 5,000 acres or more and roadless islands of public lands for their wilderness characteristics and reports to the President on the suitability or nonsuitability for each designation of wilderness. The President submits a recommendation to the Congress, and a designation of wilderness shall become effective only if as approved by an Act of Congress. There was supposed to be a beginning of the study process--initiated by the BLM--and an end. The Wilderness Act of 1964, together with FLPMA, provides the recipe for designating wilderness. This was not a process designed to go on in perpetuity, causing the BLM or the Forest Service to manage lands as if they were wilderness forever, which is what we have been living with in Utah. Our bill follows the plan for designations set out under these laws. It is a plan that allows lands to be protected for their wilderness values and character and at the same time brings closure and finality to the process. The conception of releasing lands not chosen for wilderness designation has never been controversial. The Congress has made it through countless bills to designate wilderness in the time I have been a Senator. Each time a bill is passed into law, the lands not designated were released. That is the normal process. Why is release in this bill such a lightning rod issue? I suspect it is because the lands in the study areas have been managed as wilderness for almost 20 years. In addition, the lands included in H.R. 1500, the so-called environmentalist bill--or at least, the environmentalist extreme bill-- have been managed as de facto wilderness in recent years. All it takes for all of this land to be de facto wilderness is to let this process go on forever. Face it, it is hard to let something go once you have it. Environmentalists are loath to pass legislation designating less land in the wilderness than what is already basically wilderness now or de facto wilderness. I am not unsympathetic to their motives, but I disagree with the result. It holds millions of acres in legal limbo, some think illegal limbo; our people in Utah feel illegal limbo. Our bill contains release language that would have prevented BLM land managers, the on-the-ground professionals, from being able to manage nondesignated lands for their wilderness value and character. Our concern was the Federal managers would continue to manage land as wilderness even though Congress has made a conscious decision that certain land did not have the wilderness characteristics and values meriting formal designation. We included the term ``nonwilderness'' multiple use in our bill which we believed would accomplish this goal. As my colleagues know, that phrase in and of itself caused more concerned to be expressed about our bill than possibly any other section in our bill. In fact, it led to a lively debate last December during the full committee markup on our bill. That was then. This is now. In today's proposal before this body that term has been eliminated. Our release provision has been modified substantially. The new release language which is contained in the substitute amendment is simple and straightforward. It simply states that the BLM lands located in Utah have been properly studied for their wilderness characteristics, and that those not designated as wilderness by our bill need not be studied or pursued any further by the Secretary. In addition, these lands will be managed for the full range of multiple use as defined in section 103(C) of FLPMA in accordance with land management plans adopted by the BLM pursuant to section 202 of the Federal Land Policy and Management Act of 1976. What this says to the Federal managers is that, now that wilderness has been designated, assuming this bill passes, the balance of the land should be managed under existing laws and regulations where appropriate. It is not a signal to the mythical lineup of bulldozers to start their engines, as some might say, because it simply does not leave these lands unprotected. I repeat, it will not leave nondesignated lands open for unrestrained and uncontrolled development. There are other designations available to the BLM other than wilderness to protect our natural resources from this occurring. These designations are proposed, examined and eventually undertaken through the land use planning process outlined in section 202 of FLPMA. To give comfort to those who remain convinced that our language will not afford these lands the protection they deserve, let me recount the criteria to be reviewed by the Secretary when developing and revising land use plans. In subsection (c) of section 202, the Secretary shall: (1) use and observe the principles of multiple use and sustained yield; (2) achieve integrated consideration of physical, biological, economic, and other sciences; (3) give priority to the designation and protection of areas of critical and environmental concern; (4) rely on the inventory of the public lands, their resources and other values; (5) consider present and potential use of the public lands; (6) consider the relative scarcity of the values involved and the availability of alternative means and sites for realization of those values; (7) weigh long-term benefit to the public against short- term benefits; (8) provide for compliance with applicable pollution control laws, including State and Federal air, water, noise or other pollution standards or implementation plans; and (9) coordinate the land use inventory, planning, and management activities for such lands with other Federal departments and agencies and of the States and local government within which the lands are located. Just look at these Bureau of Land Management special designations to which we will be subject to. It is not that the lands are going to be just opened up for any kind of use. Look at the list of these various things they will be subject to. Subsection (f) directs the Secretary to provide an opportunity for Federal, State, and local governments and the general public to comment upon and participate in the formulation of plans and programs relating to the management of public lands. Certainly my colleagues would agree that there is no better way to manage these nondesignated lands than by the book and in accordance with FLPMA. There is not any better way. That is what our release language does. It provides they be managed the way FLPMA says they will be managed. In Utah, all of the public lands are covered by land use plans developed pursuant to section 202 of FLPMA. I understand some of the plans in Utah are not as current as they might be; but, nevertheless, they provide protection for the resources, particularly those not designated as wilderness. Within each plan, the BLM will consider the resources present in an area and what protection they need. Last week, I asked the Utah State BLM director to provide me with a summary of those special designations that can be developed through the land use planning process for Federal managers to protect specific resources. I have produced these two charts that list those special designations and a brief summary of what each designation is for. These designations include: Areas of critical environmental concern--for those areas that have special unique or rare values; Outstanding natural areas--to protect unusual natural characteristics for education and recreational purposes; Visual resources management designations--that are utilized to maintain a landscape that appears unaltered, to retain the existing character of a landscape, and to manage activities that may lead to modifications in that landscape; Coal management designations--indicating where coal leasing and development can occur and the types of methods that can be used. I might mention in that regard, Utah is the Saudi Arabia of coal. By the way, it is environmentally sound, high-moisture content, low-sulfur content coal that will be necessary to keep the rest of the country environmentally clean. Continuing with the designations: Designations for locatable energy and nonenergy leaseable minerals-- indicating in what areas the mining laws are open or closed; Off-highway vehicle designations--I am only listing a few--indicating where such use is open and closed. These are just a few of the special management designations available to the local BLM manager that can be used to protect this country's resources and our State's resources. If a designation is made and a particular activity is inconsistent with this designation, it will not occur. The only ``golden arches'' dotting the protected Utah landscape will be the ones covered by the elements over centuries. While I may not always agree with them, I have faith that our local BLM managers will use these designations in the proper way after establishing their merit through the proper public process. Again, the substitute bill does not exempt nondesignated wilderness lands from being designated in any of these categories. There are also designations that can be made by Congress or the Secretary of the Interior to establish systems of national importance and to include components within these national systems. The Utah State BLM office provided a list of these authorities, which I have produced on another chart. These designations include: national wild and scenic rivers, national conservation areas, national outstanding natural areas, critical habitat areas, national historic landmarks, and national scenic areas, just to mention a few. There are others, as well, on the list. There is a wide latitude available to Congress and the Secretary to utilize these designations in a manner befitting the resources and the management scheme they mandate to protect them in their true character. In addition to all of these designations, there is a plethora of environmental laws and regulations to which the management of our public lands must adhere. Again, I asked the Utah State BLM Director to provide me with a list of those Federal laws--and I am only talking about Federal laws, not State laws; we have a lot of State laws, too. These are Federal laws that involve BLM activities, to which the BLM managers, as they manage the Federal lands, must adhere. Look at these. We have discussed many of these authorities so far. But, my colleagues need to consider all of these legislative authorities that involve BLM. An abbreviated list of these laws is located on the two charts I have produced here. I emphasize that these lists are not full lists. I have listed these legislative authorities which I thought were more pertinent to this debate than others. I have not prioritized them in any particular fashion, other than to place them in groups according to their particular management emphasis. I will mention a few that are on this list for the benefit of my colleagues. I understand Senator Murkowski has submitted this list for the Record in his remarks, but I will mention a few. These include: FLPMA; National Environmental Policy Act, or NEPA; Clean Air Act; Federal Water Pollution Control Act, or Clean Water Act; Safe Drinking Water Act; Solid Waste Disposal Act; Resource Conservation and Recovery Act; Superfund; Mining Law; Mineral Leasing Act; Federal Coal Leasing Amendments; Surface Mining Control and Reclamation Act, or SMCRA; Energy Policy Act of 1992; Public Rangelands Improvement Act; Endangered Species Act; Wild and Free-Roaming Burro Act; Act for protecting Bald and Golden Eagles; Toxic Substances Control Act; Migratory Bird Conservation Act; Federal Insecticide, Fungicide, an Rodenticide Act; Water Resources Development Act; Soil and Water Resources Conservation Act; National Historic Preservation Act; Wild and Scenic Rivers Act; Wilderness Act; Archaeological Resource Protection Act; and Antiquities Act. This is just to mention a few. It is mind boggling. I am sure my colleagues will agree that this is a ``Who's Who'' list of environmental laws, and the activities that occur on public lands not designated wilderness by our proposal will be subject to each and every one. I will repeat what I said a moment ago in relation to this list of environmental laws. Our bill does not exempt nondesignated wilderness lands--any of those lands released for regulated multiple use under the bill--from any provision, contained in any of these laws and their corresponding regulations. Our release language does contain a sentence that has raised questions. This sentence says: ``Such lands shall not be managed for the purpose of protecting their suitability for wilderness designation.'' What does this mean? This means that Federal managers will not manage a tract of land for the purpose of its possible inclusion by Congress within the National Wilderness Preservation System. As my colleagues will note from the chart listing the special designations available for BLM managers, ``Future wilderness designation'' is not listed because it does not exist. There is no designation or direction from Congress to the agency, outside of section 603(c) of FLPMA, that says you should manage land for the purpose of its future designation as wilderness. There is no such rule or law. But we have told the agency that we want lands protected for their unique geographical and geological traits, for their special and rare topographical values and qualities, historical values, and so forth. The way to do this is through the existing authorities and designations available to the BLM. This sentence in the substitute does not foreclose a Federal manager from managing an area of land to protect its wilderness character. This sentence does not prohibit a BLM district manager from managing an area of land for its wilderness values. Statements to the contrary are false. And, more importantly, it does not foreclose a future Congress from revisiting this issue and designating additional lands as wilderness. We cannot bind a future Congress, and we do not in our bill. During last year's markup on our bill, there was lively discussion regarding our release language. On two separate votes, the committee voted to keep our release language in the bill. However, it was clear from the statements made at the markup, and shortly thereafter to me and Senator Bennett, that committee members hoped we would address the issues that they raised during the markup. We have done that with this language. As I said, the term ``nonwilderness'' multiple use has been removed, and there is no language preventing the agency from managing lands to protect their wilderness character. I want to thank all the members of the Senate Energy Committee, particularly Senators Johnston and Bumpers and Murkowski, for their constructive criticism of our original language and for their suggestions for ways to amend it. The amendment offered by Senator Johnston at the December markup of the committee provided the impetus for this change. I must say I agree wholeheartedly with the comment Senator Johnston made prior to the vote on his amendment. He said that the effect of his amendment would be to ``do away with what is a present practice, which is also offending, which is managing for the purpose of some future designation as wilderness.'' That also is the effect of our language. We think it is a worthwhile effect. Now, I know I have taken enough time. But this is an important issue--one of the most important issues in my whole time in the U.S. Senate. I am hopeful that our colleagues will help Senator Bennett and myself to get this through. Should it be that they do not, it is going to come back and come back and come back again because we have to get this problem solved in our State. Frankly, I do not mean to disparage anybody who feels otherwise about this, as there are very sincere people on both extremes of this issue. We have tried to achieve a compromise in the middle, where the vast majority of people can agree. I think people of good will who realize what we are trying to do will agree. I think we have given reason for every one of our colleagues here to consider the hard work we have done and the pain we have been through, and the efforts that we have made to get this done. In that regard, I want to pay particular tribute to my colleague and my friend from Utah, Senator Bennett. When he was on this committee, he did yeoman work with other members to apprise them of this matter. Since he has not been on the Energy Committee, he has worked very close with his former colleagues on that committee to help get this done. We have worked side by side, and we are going to continue working side by side. We both have tried to be reasonable in every way in this Congress as we serve here in the Senate. We are going to continue to try and be reasonable. I want to pay tribute to him because he has been a voice of reason on this issue--an intelligent voice of reason. I personally believe that, when this passes, he will deserve a great deal of the credit, as will our dear friend and colleague, Congressman Hansen, in the House, who has carried this proposal very strongly over there. Some in the media have said that this cannot pass the House. That is not true. If we pass it, it will pass the House whenever the vote comes. I hope our colleagues will give some consideration to the efforts we have made, the good faith that we have shown, and the fact that we believe we are representing our State and the Nation in the very best way on this very critical issue to us. This is a very, very important Utah wilderness bill. I yield the floor. Mr. CAMPBELL addressed the Chair.

Mr. HATCH. Mr. President, I am going to ask unanimous consent that the following also be inserted: a letter from the Governor, Mike Leavitt; a letter from the speaker of the Utah House of Representatives and the president of the Utah State Senate, along with a resolution adopted last year by the Utah State Legislature. I also put in the Record a letter signed by over 300 elected officials we received just this morning; a letter from the Utah Parent Teacher Association; a letter from the Utah State Board of Education; a letter from the Utah Farm Bureau; and a resolution from the board of trustees of the School and Institutional Trust Lands Administration. Mr. President, I ask unanimous consent that all of those be printed in the Record.

Mr. HATCH. Mr. President, I have been intrigued by the comments and remarks of my colleague from New Jersey. But I have to say that during the course of this debate, we are going to show a number of those remarks to be in error. Let me mention a couple of things right off the top of my head. He mentioned the beauties of the Kaiparowits Plateau, which I have tramped on and been around. I might add that, in this bill, if you include just Fifty Mile Mountain in that area and the Paria-Hackberry area, you are talking about 220,628 acres out of that area that are going into wilderness. The implication is that we are not doing anything about wilderness. My gosh, almost 221,000 acres. With the Dirty Devil area, which was mentioned, we are designating more than 75,000 acres. We are talking about 2 million acres here. Since the BLM began studying this issue almost 18 years ago, more than than $10 million has been spent, countless hearings held, town meetings scheduled--many efforts to bring people together. The affected county people are upset, many not wanting any acres at all in wilderness. Then, there is the other extreme wanting 5.7 million acres. The BLM, looking at it all, said that the only acres that even came close to qualifying for true wilderness are 3.2 million. That is the study area. Nobody in their right mind expected that whole study area to become wilderness. Everybody knows that once it is designated wilderness, it is used only basically for backpacking. You can walk on it, and that is about it. The people of Utah and everybody else would be basically frozen out from using any mechanization, including a bicycle, on the property. So even if you assume that the whole 3.2 million acres might qualify for wilderness and that the entire amount should be taken, that still is all there would be. These people who are so extreme want 5.7 million acres. Keep in mind, the definition of wilderness is this. Section 2 of the Wilderness Act of 1964 says: ``A wilderness, in contrast with those areas where man and his own works dominate the landscape, is hereby recognized as an area where the Earth and its community of life are untrammeled by man and where man himself is a visitor who does not remain.'' Further, it is defined as: An area of undeveloped Federal land retaining its primeval character and influence without permanent improvements or human habitation, which is protected by man so as to preserve natural conditions and one, which generally appears to have been affected primarily by the forces of nature with the implants of man where it is substantially unnoticeable; two, has outstanding opportunities for solitude or primitive and unconfined type of recreation; three, has at least 5,000 acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; four, may also contain ecological, geological, or other features of scientific, scenic, or historical value. Furthermore, it said that you cannot put mechanization on this land. We in Utah understand wilderness. I was one of the pivotal people in getting it passed a number of years ago, along with Senator Garn and Congressman Hansen. We passed 800,000 acres of Forest Service. There was a lot of screaming and shouting then. Today, virtually everybody admits that was a wonderful bill. It has worked well. We are proud of it. We are proud of our wilderness in Utah. We do not want people from other States coming in and accusing us of raping the land or robbing the people of the country as a whole, or taking away their rights, when we understand our land and we know it. We have been there and we have walked over it and we have driven many of these areas. Frankly, it does make sense to me for those who come into our State demanding 5.7 million acres when the total study area was only 3.2 million. They should listen to a leading BLM figure, Mr. James Parker, the former Associate and Assistant Director of BLM, former BLM State director for Utah, who stated in testimony before the Senate Subcommittee on Forest and Public Land Management on S. 884, the following: Based on my personal experience with, and review of, the detailed reports and analysis prepared by the professional staff of BLM and other entities of the Department of Interior, I believe that S. 884 is appropriate and that it includes most of the areas that truly deserve to be designated as wilderness in Utah. I believe the acreage figure is both credible and in line with what meets the criteria for wilderness designation. I also believe that it meets both the spirit and intent of the Wilderness Act of 1964, and the proposed designations fit well into the overall management scheme provided for by FLPMA for management of the public lands. This is the first time I have heard these indications, except from the most extreme people, that the BLM is an organization that is not tremendously concerned about the environment. It has always been environmentally oriented in our State. With regard to the BLM Utah State process, Mr. Parker said: The process was open to every citizen of the United States, it was well defined, the criteria well-documented, appeals and protest rights were all publicized and used by groups and individuals on both sides of the issue, and extensive documentation was completed for all aspects of the process. Undoubtedly, this is one of the longest running, most expensive, and most intensive public involvement efforts in the history of Utah. On the factual aspect of public involvement of this process, Mr. Parker provided the following information: During the 15 years it took to complete this wilderness process in Utah, more than 16,000 written comments were received, analyzed, and incorporated into the decision process. More than 75 formal public meetings and hearings were held by BLM, and hundreds of face-to-face discussions and workshops were conducted. Thousands of pages of documentation were prepared, printed, and distributed for public review and comment, and countless briefings were held and questions responded to. For the draft environmental impact statement alone, 16 separate hearings were conducted, over 700 people testified, and over 6,000 people commented in writing. The resulting EIS fills 10 large books and consists of 7 volumes, plus analysis of public input and agency response. Let me make the point that the people arguing against us, have produced a beautiful book that contains their recommendation. It is done in this book here. That is their work. I give them credit for it. It is a beautiful book and there is a lot of good information. But this is just part of the study of the Federal Government and the BLM. Here are some more parts of the study, from the Geological Survey on through. That is what we have gone through, not just the study in the interests of a few, but the interests of everybody. I am glad that we have done that. The fact is there has been a lot of study there. There has been some suggestion here that the BLM development process was flawed. Let us see what Mr. Parker had to say. We are not quoting some liberal, environmentally-oriented professor from Colorado who does not even live in Utah. We are talking about the head of the Utah State BLM Office. I came to the conclusion that, while it was not a perfect process, it was carried out in a very open, professional, and orderly manner. The criteria had been adhered to and procedures had been followed. Just look at it right here. There was extensive documentation of the decision process. Just look at it. It is enough to blow your mind. There had also been a great deal of oversight in testing the decisions by higher levels of the organization, the Department of the Interior, and by special interest groups on both sides of the issue through the appeals and judicial challenges. I believe that the professional staff of BLM and the other agencies involved-- It was not just BLM; there are a number of Federal agencies involved in all these studies. involved in both Utah and in the headquarters level in Washington. . . Let us get with it. People here in Washington are not going to let us make mistakes here. The people out there are not going to let us make mistakes. Both areas are environmentally oriented, almost to the extreme in some areas. But Mr. Parker says: I believe that the professional staff of BLM and the other agencies involved in both Utah and at the headquarters level in Washington and elsewhere did a very credible job in carrying out the mandate of the law. In the process pursued by the Utah congressional delegation to develop S. 884--remember, this is the head of BLM in Utah, former Associate and Assistant Director of BLM and former BLM State Director for Utah on this process pursued by our Utah congressional delegation-- Mr. Parker stated, I believe the recent process used by the delegation and the Governor was not only appropriate but was a rather gracious gesture-- I have to tell you it was. But let me continue. given the extent of previous public involvement in the numerous opportunities that have existed over the past 17 years for individuals and groups to become involved in and to impact the process. Regarding the future use of lands that are not designated in our wilderness bill, S. 884, Mr. Parker continues: All of the public lands in Utah are covered by land use plans. Some of the plans are not as current as they might be but they do provide protection for the resources. These plans, along with other laws and regulations, provide many options for land managers to use to protect the land and their resources. While allowing for appropriate authorized use and enjoyment of the public lands, no lands in Utah would be unprotected, nor will they be open to uncontrolled development if they are not designated as wilderness. That says it all. These lands are not going to be ripped off. These lands are not just automatically developed. There are not going to be shopping centers everywhere. The fact is they will be subject to the environmental rules and laws in existence today. Mr. Parker also has written the following in a recent newspaper article about H.R. 1500, the bill which apparently our colleague from New Jersey supports as well as people who have never stepped foot in Utah, who have never looked at it, and who do not understand our State. I might add they include many environmental organizations that are very sincere in what they are doing, but on this issue they are sincerely wrong: This ill-conceived proposal-- Mr. Parker is talking about H.R. 1500, the environmental bill that would have 5.7 million acres-- This ill-conceived proposal includes in its boundaries private homes and buildings, cultivated fields, chained areas, thousands of acres of private and school trust lands, and other areas that cannot be designated as wilderness. It also includes hundreds of miles of roads. In this study book of theirs we have placed a tab demonstrating where there exist many miles of roads. They try to say these roads are abandoned or not used, and so forth--some of them may be. The fact of the matter is that hundreds of miles of roads have been included in their proposed wilderness areas. We have gone over many of those areas. A lot of it is low-lying sagebrush land along highways. That is how ridiculous this is. Mr. Parker goes on to say: Also included are-- Mr. Parker criticizing H.R. 1500, the environmental bill or I should say the environmentally extreme bill. Also included are oil and gas wells, hundreds of mineral leases and mining claims, rights of ways, et cetera, all of which would conflict with wilderness designation. Many of the areas in the proposal lack the 5,000-acre minimum specified by the Wilderness Act and are ``cherry stemmed'' in the extreme leaving narrow necks of land that would make them totally unmanageable as wilderness. That is what a lot of this stuff is. I would prefer to go with these things. I do not always agree with what the Federal Government has done in all of these wilderness studies, but we have spent millions getting to the point where we brought people together from all over the State of Utah and, frankly, from all over the country, to achieve what we have been trying to do. So you have a study area of 3.2 million acres that is well studied, well documented. It is misleading to indicate that the BLM did not do its job here. In fact, we thought that it did too good of a job. Many people in Utah did. After reviewing the 3.2 million acres, the BLM in its final recommendation, after all of this work, concluded that we should have 1.9 million acres. That would be the right figure. This bill as originally filed proposed 1.8 million acres, 100,000 acres less than the 1.9 million that the BLM called for. To accommodate our colleagues here in the Senate, because we know that our colleagues are sincere in wanting more wilderness acres, we have gone from 1.8 to 2 million. Let us take a look at what 2 million acres equals, just so people realize how vast this amount is, and why we are so upset that certain groups are coming into our State and telling us what we can and cannot do in our own State. And, all this after Senator Bennett, I, and the Members of Congress in the House have worked on this issue for, in my case, 20 years, to get to this point where we can resolve this matter. I should point out that both sides on this issue are mad at us most of the time--those who do not want any acreage and those who want everything, like our friend from New Jersey. The affected counties wanted just over 1 million acres, that is all. They did not want any more, and in some area they did not want that, to be honest with you. They really want zero, especially in the mainly affected counties. But, at the most, we finally got them to agree to 1 million acres. To those who never have budged from 5.7 million acres, not one acre, we propose an amount of 2 million acres, which is 100,000 above that recommended by the BLM. Look at what it means. Just so you get the idea of how vast this is. Two million acres is equal to 100 percent of the whole State of Delaware--they only have 1.2 million acres in Delaware; 63 percent of the whole State of Connecticut, which is only 3 million acres; 41 percent of Senator Bradley's New Jersey--in other words, our 2 million acres is almost half of his State--he has 4.8 million acres in New Jersey; 41 percent of the whole State of Massachusetts; 35 percent of the whole State of New Hampshire; and 34 percent of the whole State of Vermont. I think people ought to stop and look at this. We live in Utah. We believe it is the most beautiful State in the Union. We do not think there is any question about it. We think many people will confirm that. We think all States have much beauty in them. But the fact of the matter is that after all these years of study, all of these years of conflict, and all these years of having both sides mad at the congressional delegation, with some wanting none and always the environmentalists wanting at least 5.7 million, if not more, since Wayne Owens originally filed the bill in 1988, it is time to settle this matter. Representative Owens' bill totaled 5.2 million, by the way, as I recall. The New York Congressman, who at the time he filed his bill had never stepped foot inside of Utah, introduced a measure to designate 5.7 million acres, and that becomes the battle cry for these people. It is an extreme battle cry. At the outset, my colleagues should understand one very important fact. We in Utah love our State. We love and cherish our land, which is comprised of some of the most beautiful and picturesque scenery in the world. I am going to get into it in just a few minutes as to what we are doing. When we talk about the Kaiparowits Plateau, we have 220,000 acres in there, and of the other areas cited by my friend from New Jersey, there are 75,000 acres of the Dirty Devil, and 16,000 acres of the Fish and Owl Creek. Even this proposal is being criticized as well. Mr. President, I really cannot say how disappointed I am that some of the Members of this body have chosen not only to oppose the Utah wilderness provisions of this bill but also to engage in such questionable debate about it. My friend from New Jersey, Senator Bradley, issued a press release on Friday announcing that he would try to block the Utah wilderness legislation from passing. He has a right to do that if he wants to. Actually, for those of us involved, this is not big news. The Senator from New Jersey has done a pretty good job of blocking it so far, as well as most of the rest of the bills in this amendment, since last April. It is because he has that Chairman Murkowski has included our wilderness bill in this overall package, knowing that it is the just thing to do. It just seems to me that this press release is a public way of throwing down the gauntlet and, believe me, I am sincerely sorry for that. The Senator from New Jersey has announced that he intends to take down legislation that is critical to our State. What am I supposed to do? What would any Member of this body do if he or she found himself or herself in our shoes? If anyone here does not know the answer to that question, he or she does not belong in the Senate. I have heard all the rhetoric about Utah land belonging to the Nation as a whole. And it may surprise some of my colleagues to hear that to a certain degree I agree with that. I believe certain problems and concerns affecting some States must be shared nationally. But let us get one thing straight. The impact of this legislation, and in fact the adverse impact of failing to pass this bill, is going to fall on Utahns only--not on New Jerseyites, but on Utahns. It will not matter to a citizen of New Jersey or Florida or Wisconsin that a small town in rural Utah like Kanab, UT, dies a slow death because its land has been locked up, unjustly locked up. It will not matter to the average Illinoisan that the town of Summit, UT, faces a water crisis because existing water rights have not been respected in the second driest State in the Union. Just who do my colleagues think is going to bear the heaviest consequences of our decision with respect to the Utah wilderness issue? In all honesty, this press release sounds like it could have been written by the lobbyists for the National Resources Defense Council. I simply cannot believe Senator Bradley would have personally approved its content. It says that ``The current Senate Utah wilderness legislation would direct that 20 million acres of Utah lands can never be designated as wilderness in the future.'' Now, where on Earth did this come from? Neither the original bill that Senator Bennett and I filed nor the substitute says any such thing. Moreover, the BLM has never even identified 20 million acres of land as wilderness worthy, as I have pointed out earlier. This figure represents 91 percent of the BLM's total landownership in Utah. (Mr. KYL assumed the chair.)

Mr. HATCH

Mr. HATCH. Mr. President, I rise to address an issue that I have discussed recently before the Senate: judicial selection. As I have said before, differences in judicial philosophy can have real and profound consequences for the safety of Americans in their neighborhoods homes and workplaces. Judges are every bit as much a part of the Federal anticrime effort as are U.S. attorneys and FBI and DEA agents. In my last speech, I drew attention to two Federal district judges appointed by President Clinton--Judges Harold Baer, Jr. and James Beaty. These two judges rendered decisions favorable to criminal defendants based on legal technicalities that had nothing to do with their guilt. Judge Baer sparked outrage throughout the Nation when he suppressed evidence seized during the stop of an automobile by police who had witnessed four men drop off two bags in the trunk at 5 a.m., without speaking to the driver, and who then rapidly left the scene when they saw a police officer looking at them. The bags turned out to contain about 80 pounds of drugs. Judge Beaty has received similar criticism for releasing a man who murdered his parents in their own bed because a juror had gone to look at a tree where the murder weapon was found. I was pleased to learn that President Clinton is upset about Judge Baer's outrageous decision. He even momentarily suggested, through his press secretary, that the judge should resign if he does not reverse himself. But President Clinton concern is too little, too late. He should have been more concerned when he nominated this individual to lifetime tenure as a Federal judge. A mistake here lasts a lifetime, not just 4 years. Judge Baer is one of President Clinton's lasting legacies. And the President's concern comes only after I and many others have criticized the decision literally for weeks. The President talks about putting cops on the beat, yet he appoints judges who are putting criminals back on the street. Now that the American people are suffering from the consequences of this administration's judicial nominations, President Clinton's initial solution was to call upon Judge Baer to resign. This was a meaningless gesture that has no practical effect because the only way to remove a judge is to impeach him. President Clinton is now left to hoping Judge Baer will reverse himself. The true check on these solf-on-crime judicial activists is to never appoint them in the first place. Let me be clear, I did not call for Judge Baer's resignation. I simply pointed out that there is no substitute for the sound exercise of the President's power to appoint judges to lifetime positions. Let me assure my colleagues, Judge Baer is not the only judge appointed since January, 1993 that, in my view, President Clinton should feel misgivings about. Will the President chastise Judge Beaty, or does he agree with his decision to release a convicted double murderer on a technicality? I am not alone in my criticism of Judge Beaty--the Wall Street Journal has said that Judge Beaty and his Carter-appointed colleague took ``a view of defendants' rights that is so expansive that they are willing to put a murderer back out on the streets because a juror took a look at a tree.'' The entire fourth circuit has voted to grant en banc review of the case, and I fully expect the court to do the right thing and reverse Judge Beaty's misguided opinion. But President Clinton has not called upon Judge Beaty to resign. Instead, he is rewarding Judge Beaty by promoting him. He has nominated Judge Beaty to the fourth circuit. While the President cannot force activist, soft-on-crime judges to resign, he can choose to keep them where they are instead of promoting them to the appellate courts, where they can do even more damage to the law and to our communities. Will President Clinton regret Judge Beaty's soft-on-crime decisions if they start to issue from the fourth circuit? Will he then suggest that Judge Beaty resign? Perhaps he ought to withdraw that nomination--it is in is power to do so, removing Judge Baer is not. To be sure, Republican appointed judges can make erroneous rulings. And, I understand the Clinton administration is on a desperate damage control mission to mention such rulings. That is fine by me, because the more information about the track records of Republican and Democratic appointed judges, the better. I hardly agree with every decision of a Republican appointed judge. Nor do I disagree with every decision of a Democratic appointed judge. Nevertheless, there can be little doubt that judges appointed by Republican Presidents will be generally tougher on crime than Democratic appointees. As I will explain in this and subsequent speeches, on the whole judges appointed by Democrat Presidents are invariably more activist and more sympathetic to criminal rights than the great majority of judges appointed by Republican Presidents. I does little good to ask these judges to resign or to chastise them after they have inflicted harm upon the law and upon the rights of our communities to protect themselves from crime, violence, and drugs. President Clinton's momentary resignation gesture is only the latest example of this administration's eagerness to flip-flop wherever it meets a stiff breeze of public disapproval of its actions. And what excuse, Mr. President, does President Clinton have for the nomination of Judge J. Lee Sarokin of the U.S. Court of Appeals for the Third Circuit, and Judge Rosemary Barkett of the U.S. Court of Appeals for the Eleventh Circuit? These are two of the most activist friends of criminal rights on our Federal courts of appeals. Their judicial track records were crystal clear at the time President Clinton appointed them. The President nominated Judges Sarokin and Barkett with full knowledge of their records. I will have more to say about these two judges in the future, but let me remind the Senate and the American people that I led the opposition to these two nominees because of their activist, soft-on-crime approach. The Clinton administration fought hard to get these nominees through the Judiciary Committee and through the Senate, which confirmed both Judge Sarokin and Judge Barkett in 1994. I regret to say that my predictions about these two judges have been proven correct. Judge Sarokin has repeatedly come down on the side of criminals and prisoners in a series of cases, and he recently voted to overturn the death sentences of two Delaware men who, in separate cases, killed several elderly people. Not to be outdone by her New Jersey colleague, Judge Barkett has continued her tolerant attitude toward drugs in our society and her suspicion of the police. Just last month she argued in an opinion that police could not conduct random roadblocks to prevent traffic violations and to search for drugs--in her words the searches were ``intolerable and unreasonable.'' Luckily, in both of the cases that I have just mentioned, Reagan and Bush appointees formed a majority of the court and ensured that Judges Sarokin and Barkett's views were made known as dissents. But if Judges Sarokin and Barkett and other Clinton nominees had formed a majority on those courts, they would have put the criminals back on the street. If President Clinton should win a second term, he will appoint a majority of the judges on the Federal courts of appeals. Judges Barkett and Sarokin provide a clear example of what we can expect from the Federal courts should President Clinton appoint judges for 4 more years. Can the administration name any Reagan or Bush appellate judges who have argued so often and so vigorously in favor of elevating criminal rights above the right of the community to protect itself? I don't think they can. In fact, the record indicates that the current administration has nominated several judges who have ruled in favor of criminals or prisoners clearly and consistently. When they are right, that is fine. In most of these cases they are wrong. For example, let me tell the American people about the case of United States v. Hamrick, [43 F.3d 877 (CA4 1995) (en banc)]. While serving time in Federal prison for threatening to kill President Reagan, defendant Rodney Hamrick built several improvised bombs, threatened to destroy a Federal building, shot other inmates with improvised guns, and threatened to kill Federal judges. While serving his various sentences, Hamrick built a letter bomb of materials available in prison that, in the words of Judge Michael Luttig's opinion for the fourth circuit, if fully effective could have produced a 1,000-degree fireball up to 3 feet in diameter. This fireball would have burned the skin and eyes of anyone exposed to it. If those exposed were inhaling when the bomb detonated, the fireball could have seared their lungs, possibly resulting in death. Hamrick sent the bomb to William Kolibash, the U.S. attorney for the Northern District of West Virginia, whose office was responsible for Hamrick's prosecution. Kolibash opened the package, but the bomb was faulty and only scorched the package instead of detonating. Hamrick put his own return address on the envelope, making his arrest an easy matter since he was in prison. Hamrick confessed and stated that he intended the bomb to go off in retaliation for his prosecution. Hamrick was convicted by a jury of assault of a U.S. attorney with a deadly or dangerous weapon under 18 U.S. Sec. 111(b). Relying upon applicable Supreme Court precedent, Judge Luttig affirmed the conviction for the en banc fourth circuit. He was joined by Judges Russell, Widener, Wilkinson, Wilkins, Niemeyer, and Williams. Judge Hamilton wrote a concurring opinion. All of these judges were appointed by Republican Presidents. Judge Ervin, then chief judge and an appointee of President Carter, wrote the dissent. He was joined by every Democratic appointed judge on the circuit in arguing that because the bomb was made badly, it could not constitute a deadly or dangerous weapon under the statute. Judge Blane Michael, President Clinton's appointment to the fourth circuit, joined this illogical, unreasonable decision. He joined Chief Judge Ervin's conclusion that because the bomb lacked an igniter, it could not be called a dysfunctional bomb, as the majority concluded, but instead was, in the dissent's phrase, an ``incomplete bomb,'' and hence could not be a dangerous weapon under the statute. Goodness gracious. What if it had been a real bomb? Mr. President, I imagine that Judge Ervin and Judge Michael also would think that if a defendant pointed a gun at you or me and pulled the trigger, but the gun is defective and doesn't fire, the defendant would not be guilty of attempted murder because he used an incomplete gun. Such sophistic word games demonstrate the eagerness of Judge Michael and his dissenting colleagues to protect criminals at the expense of law enforcement. Even once the criminals are convicted and sent to prison, the judges nominated by President Clinton continue to adopt a tolerant attitude. These judges are determined to defend prisoners against the rights of society to defend itself from violent crime. These judges should be more concerned about the rights of society to incarcerate convicted criminals and to run orderly prisons before they start wringing their hands about how unfair a punishment it is to be in jail. On this score, let me just identify one decision out of many that exemplifies the willingness of some activist Clinton judges to protect those who have harmed and attacked our society. Let me tell the American people about Giano versus Senkowski, a case in which an inmate brought a Federal civil right suit against a prison that refused to allow inmates to possess sexually explicit photographs of spouses or girlfriends. The plaintiff somehow felt that his first amendment rights were violated. It is a demonstration of how far activist judges have already expanded the laws that a prisoner can even bring a lawsuit on such a frivolous claim. The majority, Judges Joseph McLauglin and Dennis Jacobs, both Bush appointees, properly rejected the prisoner's amazing claim that this policy violated his first amendment rights. Under Supreme Court precedent, courts are to uphold prison regulations if they are reasonably related to a legitimate penological interest. This was the case here, especially in light of the duty of the Federal courts to grant prison administrators discretion to run their prisons in a safe, efficient, and orderly way. Convicted criminals are in prison for a reason: punishment. Sometimes, activist judges forget this simple fact. Unfortunately, Judge Guido Calabresi, a former dean of the Yale Law School who President Clinton appointed to the second circuit, disagreed. He dissented from the majority and asserted that the first amendment provides prisoners with the right to possess such sexually explicit photographs. Judge Calabresi even went so far as to compare his position with the position of the Supreme Court in the Pentagon Papers case, as examples of instances in which the courts courageously resisted scare tactics in the absence of proof. What the first amendment's plain words--``Congress shall make no law abridging the freedom of speech, or of the press''--has to do with convicted prisoners prossessing sexually explicit pictures is beyond me. Judge Calabresi argued that the case should be sent back for factfinding--what this factfinding would be I do not want to know-- because he thought it possible that these pictures might diminish violence by mollifying prisoners. Gee. What reasoning. Judge Calabresi also saw fit to suggest several alternative policies, such as allowing inmates to be sent photographs but providing that the pictures may be seen only at appointed places, or allowing photographs to be received and seen for a brief time before they must be returned. It is exactly this intrusiveness that demonstrates the activist stance of the Clinton judiciary. Here we have a Federal judge of the Second Circuit Court of Appeals deciding what policies a prison ought to have regarding sexually explicit photographs. The judge wants factfinding conducted to produce evidence about the link between such photographs and violence. He has ideas about how the pictures are to be provided and used. I am sorry, but this seems like a job for prison administrators, who are expert at these issues and who are accountable to the people. It is the people, after all, who must pay for the costs of incarceration and who ultimately must fund the fanciful policies Judge Calabresi would impose. Why is this so important? As a practical matter, we in the Senate give the President deference in confirming judicial candidates nominated by the President. No one can say that I have not been at the forefront to giving deference to this President. I like him personally. I want to help him. I certainly believe he was elected and I believe he has a right to nominate these judges. I might say though that a Republican President would not nominate the same judges that a Democrat would and vice versa. Indicia of judicial activism or a soft-on-crime outlook are not always present in a nominee's record. But in the cases of Judge Sarokin and Barkett, they were, and we Republicans in the Senate attempted to defeat them on those grounds. We also now can view the products of the President's choices. We do not just have two trial judges, Judges Baer and Beaty, who have trouble understanding the role of the Federal courts in law enforcement and in the war on crime. President Clinton has sent judicial activists to Federal appellate courts as well, and the effects of his approach to judicial selection are felt even at a court as high as the Supreme Court. This is not good for the Nation, which must live under the permissive rules set by these liberal judges when they attempt to rid our streets of crime and drugs. The judicial philosophy of nominees to the Federal bench generally reflects the judicial philosophy of the person occupying the Oval Office. We in Congress have sought to restore and strengthen our Nation's war on crime and on drugs and to guarantee the safety of Americans in their streets, homes, and workplaces. For all of the President's tough-on-crime rhetoric, his judicial nominations too often undermine the fight against crime and drugs. This is an important issue. It may be the single most important issue in the next Presidential campaign. Frankly, I hope everybody in America will give some thought to it because I for one am tired of having these soft-on-crime judges on the bench. I for one am tired of having people who, as activists, do not understand the nature and role of judging, which is that judges are to interpret the laws that are made by those who are elected to make them. Judges are not elected to anything. They are nominated and confirmed for life. Hopefully, they will be removed from the pressures of politics and will be able to do what is right. I have to say that many of these judges are very sincere. They are kind- hearted, decent, honorable people who are so softhearted that they just do not see why we have to punish people because of the crimes they commit, or why we have to be as tough as we have to be. But those of us who really study these areas know that if a person is put in jail--a violent criminal--until they are 50 years of age there is a very high propensity that they will never commit violence after 50. But if we have them going in and out of the doors in those early years when they are violent criminals, they just go from one violent crime to the next, and society is the loser. We understand that here in the District of Columbia, which is sometimes known as ``Murder Capital U.S.A.'' and ``Drug Capital U.S.A.'' That needs to be cleaned up. That is why I put $20 million in a recent bill to give directly to the chief of police here so that they can acquire the necessary cars and weapons and ammunition and other facilities that they need to be able to run a better police force. Consider that it was the best police force in the Nation 20 years ago; today it is the worst in the Nation. So we put our money where our mouth is, at least as far as the Senate is concerned. I hope that money stays in in the House. We have to pay attention where judges are concerned, too. We have to get people who really are going to make a difference against the criminal conduct in our society. I am fed up with our streets not being safe. I am fed up with our homes not even being safe. We are becoming a people who have to lock the doors every time we turn around, and I for one think it is time to stop it. Mr. President, I suggest the absence of a quorum.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today in support of S. 1459, the Public Rangeland Management Act. I am proud to be a cosponsor of this bill. And, I congratulate Senator Domenici and others who have worked so hard to balance the many interests involved in this legislation. Livestock grazing has always played a major role in our western lifestyle, providing a number of important economic, social, and cultural benefits to all Americans. Utah's rangelands are a renewable resource that can be used and reused without sharing the land. In fact, grazing has become a natural part of the ecological system. A 1990 report from the Bureau of Land Management states that ``Public rangelands are in a better condition than at any time in this century.'' [``State of Public Rangelands 1990'', U.S. Bureau of Land Management, emphasis supplied] This is true because livestock grazers, armed with the latest available knowledge, have become wise users of the resources available to them. There have been instances in the past of overgrazing to the detriment of the land and the local ecology; today these cases are the exception. Now we hold those who abuse our lands responsible for their actions. Mr. President, let me state clearly that the Public Rangeland Management Act provides no relief or protection to bad actors on our rangelands. Instead, it reinforces all environmental laws as they relate to grazing on public lands. This is as it should be. But, Mr. President, I am extremely concerned for the plight of livestock producers in Utah and throughout the United States. I am not aware of any cattle producers in Utah who are making a profit. There are a number of factors contributing to this devastating trend. But when I ask them what we can do to help, they unanimously plead for stability--stability in the fees they are charged and stability in the laws and regulations they must obey. In Utah most of the livestock producers are small family-owned cattle and sheep operations. An increasing number of these families who have paid for grazing permits on public land, will be unable to afford to use the. They will simply be unable to survive under the difficult regulations promulgated by the Secretary of the Interior known as Rangeland reform 94. Even the possibility that these regulations will be implemented has been sufficient cause for many lenders to hold back their money rather than provide necessary loans to ranchers. Lenders know the business, and they know that Secretary Babbitt's proposal is bad for the industry. Without the necessary credit these families have little hope for survival. Mr. President, it breaks my heart to watch as families, who have been in the livestock business for generations--in some cases since before Utah became a State--are forced to pull up their stakes and fold up the family business. These families have withstood terrible winters, devastating droughts, the depression, and other economic downturns. But faced with an all powerful, antipathetic Federal Government, their ability to endure is coming to an end. Considering the serious situation of our livestock industry, one might wonder how far S. 1459 goes to provide for their relief. Some fear that S. 1459 exempts grazers from some environmental laws. There is absolutely no ground for this fear. The language in this bill could not more clearly reinforce all environmental laws, and it does nothing to impede future changes or additions to current environmental law. Some who oppose the bill believe it would restrict the use of permitted lands from sportsmen and recreationists. They are dead wrong. Senator Domenici went so far as to add an amendment to this bill stating plainly that multiple use of permitted land would not be inhibited in any way. Mr. President, those who continue to criticize the bill for this reason must oppose the idea of grazing on public lands altogether, because it is clear that this concern has been addressed. Mr. President, even with the difficulty faced by families in the livestock industry, there are still those who argue that we do not raise grazing fees high enough. The truth is that this bill raises grazing fees by 30 to 40 percent from current law, generating millions more revenue for the Treasury than in the past. These critics point to the higher fees that are charged for forage on private lands. But, there can be little comparison made between grazing on private land and grazing on public land. On one hand, the private landowner must provide all the livestock management services as well as continual forage. Of course private owners charge more, they provide all the necessary services for grazers and must maintain them. On public lands, it is the grazers who are required to install and maintain stock water ponds, fences, and other improvements at their own expense. Before he was named as Secretary of the Interior, Bruce Babbitt said that ``multiple use has run its course.''--Public Lands Reform Vital, Denver Post, Mar. 9, 1990. This view is certainly disheartening to use in the West, and I, for one, regret that Secretary Babbitt has set in motion a number of challenges to multiple use. The Rangeland Reform `94 plan is amount the most difficult. Besides putting grazing fees at a level that is sure to run a host of ranchers off of public lands, Secretary Babbitt's Rangeland Reform '94 proposal would lay down a long list of new standards and regulations that address all public grazing in a one-shoe-fits-all approach. This approach just does not make sense. Every grazing district throughout the country has its own set of challenges and resources that must be dealt with to ensure sustainable use of the that area. S. 1459, the Public Rangeland Management Act, would set into law a framework for managing our lands according to each district's specific needs. And I might add that it would do so while keeping all current environmental protections in full force and effect. This bill would also set into law a fee formula that, although much higher than current law, would provide stability for families in the livestock business and their creditors. Fees should not be set by political appointees who come and go, and who bring with them differing philosophies of public land management. Again, I commend Senator Domenici, Senator Murkowski, and all my colleagues who have worked to develop this compromise legislation. This bill is long overdue. When this process began the need for these reforms was great. Since then, that need has taken on great urgency. We must pass this bill without delay.

Mr. HATCH

Mr. HATCH. Mr. President, I rise in strong support of the conference report to the Product Liability Fairness Act. I would first like to commend and congratulate my distinguished colleagues, Senators Gorton, Rockefeller, and Pressler for their longstanding leadership on this issue and on this bill. They have labored long and hard over several Congresses to come up with a bill that is measured and fair, and that will accomplish meaningful and important reforms of our product liability system. This bill will benefit American workers and consumers. The only people who may be truly hurt by this bill are some of the Nation's trial lawyers. I hope this bill will not fall victim to election year politics. It is a good bill and one that we have needed for a long time. When this bill was on the Senate floor last spring, I supported efforts to broaden it so that its key provisions on punitive damages and joint and several liability would apply to all civil lawsuits. We succeeded in passing a Dole-Exon-Hatch amendment to broaden the punitive damages provision. Unfortunately, the bill with that provision in it could not survive cloture and the amendment was removed. While I continue to support broader civil justice reforms--and would particularly like to see this Congress at least enact a bill to protect religious and nonprofit organizations and volunteers from excessive punitive damage awards--I offer my enthusiastic support to this product liability bill. Even though it is a modest bill, it represents a significant step in the right direction toward removing some of the outrageous litigation abuses in our system. Anyone who has looked at the substance of this bill will realize that this is a limited, reasoned effort that is long overdue. This bill should not even raise the question of a Presidential veto. But unfortunately, it has. The ink was barely dry on this compromise bill before the President, coming to the defense of a limited and narrowly focused interest group--trial lawyers--and at the expense of American competitiveness, American jobs, and American consumers, declared he would veto this bill. For the sake of our constituents across the Nation, we should be crystal clear about where the opposition to this sensible bill comes from. It does not come from the American people, and it does not come from American workers and consumers. Product liability reform is supported by the overwhelming majority of Americans. They have indicated their frustration with crazy lawsuits, outrageous punitive damage awards, and abusive litigation. They see a complete lack of common sense in our civil justice system. They want change from a status quo that has been unfair and that has encouraged irresponsible litigation in this country. It is our responsibility to deliver that change. And it should be the President's responsibility to sign this bill. Given the President's last-minute veto of the securities litigation reform bill, which came following appeals from a few well-placed, well- heeled trial lawyers, we probably should not be surprised by the President's obstructionist position on this bill. Despite the sincere, tireless efforts of a leading member of his party, Senator Rockefeller, to work out a bipartisan position, the President has apparently opted to defend the status quo. Senator Rockefeller should take some heart in the fact that while he may be no more successful in selling this bipartisan bill to the White House than his colleague Senator Dodd was in selling the securities litigation bill, Senator Dodd ultimately crossed the finish line. We should at least be clear that the President's opposition to this bill comes only from the well-heeled trial lawyers who have taken advantage of our litigation system for their own benefit. For too long, our citizens have been the ultimate victim of lawsuits and threats of lawsuits that go beyond the bounds of common sense. It often is not fair, and it often is very extreme. By some estimates, nearly 90 percent of all companies can expect to become a defendant in a product liability case at least once. Estimates of the costs of product liability litigation range from $80 to $117 billion per year. That is simply too high. Our national resources should not be misdirected to pay for extreme and unproductive litigation costs. We heard many, many references to these costs when this 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, and on and on. Just who does President Clinton think is paying these additional costs? This bill seeks to reduce the litigation tax burdening our economy and stifling innovation and job-growth. At the same time, it aims to ensure that those individuals who are harmed by defective products are compensated by the parties who rightfully should bear responsibility for wrongdoing. This is an important point given the disinformation circulating about this bill. This legislation does not deprive any American of his or her right to sue. We need these reforms because it has become evident that we cannot address these problems comprehensively without a uniform, nationwide solution to put a ceiling on at least the most abusive litigation tactics. Products produced in one State move in interstate commerce. Manufacturers, product sellers, and individuals from one State may find themselves being sued in another State. We need to protect citizens of some States from the product liability litigation costs imposed on them by other States' legal systems. We need to assist those affected by laws in States where the legislatures have attempted reforms only to be thwarted by some State courts. This bill does that by encouraging commonsense, responsible, and fair litigation. For one, this bill reforms joint and several liability. I have spoken before about a case against Walt Disney World in which Walt Disney World was judged to be only 1 percent at fault for injuries a woman suffered when her fiance rammed into her on a grand prix ride at Disney World. Under principles of joint and several liability, Disney World was forced to pay 86 percent of the damages. (Walt Disney World Co. v. Wood, 515 So.2d 198 (Fla. S. Ct. 1987).) This bill strikes a sensible balance by limiting joint and several liability to economic damages. This fairness approach means that defendants will be chiefly responsible for the harm that they cause rather than the harm caused by other defendants. Other provisions also promote fairness. It is 100 percent wrong to paint them any other way. Take the 2-year statute of limitations. That gives parties a reasonable time in which to take legal action after they know, or should have known, of an injury and its cause, at the same time that it prevents late-in-the-day lawsuits. Who can argue with these commonsense provisions, except some of our Nation's trial lawyers who benefit from the increased fees they receive from unfair recoveries? The bill imposes liability on product sellers only under certain circumstances in which the product seller is responsible for the safety of the product it sells. A product seller should not be held hostage to a lawsuit if the manufacturer caused the damage and the plaintiff can and should be suing the manufacturer. The bill similarly provides that those who rent or lease products should be liable only where they themselves have actually been negligent or otherwise responsible for the harm--not where they are simply in the supply chain and have done nothing wrong. The bill provides a defense if the plaintiff was intoxicated or under the influence of drugs and if that accounted for more than 50 percent of the responsibility for the harm caused. What is wrong with that provision? The bill reduces damages payable by a manufacturer if harm is caused by any misuse or alteration of the product. The bill includes a limit on punitive damages in product liability cases of two times the amount of economic and noneconomic losses. That permits an adequate punishment where punishment is called for, but puts some restraint on runaway punitive damages. We did make some accommodations in this provision, including an exception allowing judges to go beyond the limits of the bill. This provision was tightened up in conference, and I think it was improved somewhat. Although I continue to have some reservations that the additur provision represents a weakening of the bill's punitive damages provision, I support this bill. The provision that we added on the floor to protect small businesses has remained in the conference report. That provision applies to small businesses having less than 25 employees and individuals whose net worth does not exceed $500,000. In cases involving either of those as defendants, punitive damages cannot exceed the lesser of $250,000 or two times economic and noneconomic losses. This worthy provision prevents small businesses and individuals from facing punitive damages in excess of $250,000. The conference report adopts the House version of the statute of repose, which sets a 15-year limit beyond which manufacturers could no longer be sued in a product liability action. Of course, other parties having physical responsibility for the product, like product sellers or renters, would continue to bear responsibility. I believe it is important to stress that punitive damages are in addition to make whole, compensatory relief. The administration produced its policy with respect to the Gorton substitute product liability bill on April 25, 1995, and was critical of the punitive damage limitations in the bill. In the President's statement this past weekend indicating that he would veto this legislation, the President again criticized the punitive damages provisions--even though those provisions have since been modified in an attempt to address his concerns. On May 2, 1995, I received a letter from Prof. George Priest of the Yale Law School responding to the administration's policy. I think he gets to the heart of why the administration's concerns then and now are misplaced, in error, and an excuse to veto this bill. Let me read from that letter. Professor Priest--responding to the bill's then punitive damages limit of three times economic damages or $250,000, whichever is greater--writes: The Administration opposes the cap on punitive damages on the grounds that the cap ``invites a wealthy potential wrongdoer to weigh the risks of a capped punitive award against the potential gains of profits from the wrongdoing. I note that the administration used that exact same phraseology in its statement of administration policy issued on March 16, 1996. Professor Priest went on to write: Meaning no disrespect, the administration's position displays a naivete unworthy of the serious problems created for consumers and low-income consumers, in particular, by the current absence of limits on potential punitive damages awards. The administration appears to criticize and to want to prevent the calculation by potential defendants of future potential damages. That position cannot be sensibly maintained because it ignores the only purpose of punitive damages, which is to deter. There can be no deterrence without a calculation of a possible future penalty. The entire system of punitive damages is premised on the hope that potential wrongdoers will engage in such calculations and decide against engaging in harm-causing behavior. If there were no such calculations, there would be no deterrent effect. The issue, thus, is what the level of potential punitive damages ought to be in order to obtain appropriate deterrence. Although the administration does not address the issue, it is well established in the analysis of modern tort law (and hardly controversial within the academy) that the calculation of compensatory damages alone is sufficient to create the appropriate deterrence of loss. Additional punitive damages awards surely reinforce the deterrent effect of compensatory damages, but at a cost: Where punitive damages awards are excessive or unpredictable (which the administration seems to want), producers are deterred from sales altogether and withdraw products and services from markets. Excessive or unpredictable punitive damage awards, thus, harm consumers and low-income consumers most of all because low profit margin products and services are the first to be withdrawn. Many scholars believe (and I am among them) that the current problems created by excessive punitive damages are so severe that a cap of three times economic damages is still too high and that consumers--again, especially the low income--would benefit from a stricter cap. I think that statement accurately and precisely sets out the reasons that I and so many others have come to the conclusion that punitive damages must be limited to benefit consumers. It is simplistic and inaccurate for opponents of this bill to claim that unlimited punitive damages benefit consumers. They do not. I note that the proportionality limit in the current bill was moderated to two times the sum of economic and noneconomic damages. Simply put, all of the provisions in this bill are commonsense provisions that level the playing field and encourage fairness in our product liability system. They are changes that Americans want and deserve. I could go on and on about ridiculous product liability cases that Americans are sick of hearing about. Everyone has heard of the McDonald's coffee case, but remember the McDonald's milkshake case? I spoke at length about that on the floor last spring. A man had purchased a milkshake at the McDonald's drive-through, put it between his legs, spilled it all over himself, and got into an accident with another driver. That driver sued McDonald's on a product liability theory and claimed that McDonald's should have warned the milkshake drinker not to drink milkshakes and drive. (Carter v. McDonald's Corp., 640 A.2d 850 (N.J. 1994).) Or how about the president of the Dixie Flag Manufacturing Co. who testified before the Commerce Committee last April. His company was sued by a man who stopped to help some employees at another company lower a flag. The man claimed that, while holding the flag, he was blown off the ground by a strong gust of wind and that the flag ripped, causing him to fall and hurt himself. He sued the flag company, claiming that the flag was unreasonably dangerous. That is bad enough, but what is worse is that there was no evidence that Dixie Flag had even sold the flag at issue. We have just got to restore some common sense into our legal system. The examples and the abuse go on and on. 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. Although Otis wins over 75 percent of its cases, on average over the past 3 years it has spent $20 million per year on liability costs, about half of which has gone to attorneys' fees. These are staggering costs that should take our breath away. They represent resources which could be going to create new jobs or undertake new advancements. Our national resources should be going to productive uses--not to unnecessary and overblown litigation and insurance costs. In short, I hope the Senate will stand up for what is right and what the American people want and need. We should send this bill to the President. And, the President should sign it.

Mr. HATCH

Mr. HATCH. Mr. President, yesterday morning I had the honor of addressing the National Medical Device Coalition, an association of far-thinking medical device manufacturing executives who have come to Washington to press for meaningful Food and Drug Administration reform. In their visits with Senators and Representatives this week, NMDC members will be offering the most compelling case I know for FDA reform, and, specifically, reform of medical device regulation. Indeed, they urge that reform of the medical device regulatory process should be a top priority of this Congress, and I couldn't agree more. As the NMDC points out, there are severe problems facing the medical device industry in our country--problems which impede the ability of manufacturers to maintain our world class competitive edge and continue to produce products which have so many public health benefits. I think that Wayne K. Barlow, president of the NMDC summed it up the best in his March 11 address to the American Institute for Medical and Biological Engineering. Mr. Barlow, who happens to also be president of Wescor, Inc., a small medical device manufacturer in Logan, UT, said: The U.S. Medical Device industry is severely challenged. Its survival beyond the 20th century has been case in doubt. The innovative fervor that once characterized our industry is evaporating. We are seeing an alarming exodus of companies, technologies, and jobs to other countries. Do not doubt that we are in a life-or-death struggle nor that its outcome will determine whether our industry has a future in this country. Mr. Barlow went on to say: Powerful forces are reshaping health care delivery and the associated markets for health care products in America. The three major components are (1) dynamic restructuring of global markets, (2) Federal regulatory policies, and (3) the U.S. product liability climate. These forces in combination have debilitated the industry. In consequence, America is being pulled down toward second-rate status in medical technology. I think that the NMDC has done us a valuable service in their concerted emphasis this week to educate the Congress on issues associated with medical devices. As they point out, this diverse industry is comprised largely of small businesses, which manufacture a wide range of products all of which contribute positively to our U.S. trade balance. A regulatory climate which threatens the health of these small businesses, threatens the health of our economy as well. But it also threatens public health, because declining incentives for innovation force production overseas. And when that innovative edge moves offshore, Americans will be deprived of the latest medical products, products which could improve or even save lives. One of the top priorities of the NMDC, eliminating FDA's involvement in granting permission to export medical products, is also a top priority of mine, and is the subject of the amendment Senators Gregg, Kassebaum, Kennedy, and I are offering here today. Let me turn to a specific discussion of the amendment, which is a substitute for the FDA Export Reform and Enhancement Act (S. 593) approved unanimously by the Labor Committee last July. I want to commend all of my colleagues who have worked on the FDA export issue in this Congress. In the House, Congressman Fred Upton has exhibited a great deal of leadership on this issue. The chairman of the Commerce Committee, Representative Thomas Bliley, and the ranking member, Representative John Dingell, must be credited for working closely together to fashion the House language on export contained in the continuing resolution under discussion today. In this Chamber, I must recognize all of the original cosponsors of the Senate bill, S. 593: Senators Gregg, Kassebaum, Abraham, Frist, and Coats. My good friend, Senator Kennedy, was instrumental in fashioning the compromise language that was unanimously adopted by the Labor Committee in July and in the amendment we now consider. In the interest of moving forward our important goal of increasing the export of medical products, I ask all of my colleagues to support this amendment. I think that the amendment we offer today is a vast improvement over current law. It undoubtedly will allow a more free export of American medical products abroad. However, I must also recognize that our original bill, and the bill approved by the House of Representatives, provides even greater opportunities for such exports, without the intrusive hand of the FDA in first approving those exports. I am hopeful we can work during the conference to get a compromise which will move toward that free- trade concept while still ensuring protection of the public health. I was chairman of the Labor Committee in 1986 and worked very hard to get the provision in current law which relaxed our restrictive trade policies regarding pharmaceutical products not approved by the FDA. At that time, the law did not go as far as I would have liked, but we did make some important strides such as permitting the export of drugs not approved by the FDA to 21 specified countries. Section 801(e)(1) of the Federal Food, Drug, and Cosmetic Act already contains extremely important principles, and sufficient safeguards, in the area of exports: A food, drug, device, or cosmetic intended for export shall not be deemed to be adulterated or misbranded under this Act if it-- (A) accords to the specifications of the foreign purchaser, (B) is not in conflict with the laws of the country to which it is intended for export, (C) is labeled on the outside of the shipping package that is intended for export, and (D) is not sold or offered for sale in domestic commerce. A very good argument can be made that this provision alone should constitute our national policy. It is important to understand that this is essentially the policy of every country in the world, except for the United States. While I think that it should be the primary responsibility of the government of each nation to protect its own citizens, I am also a realist and know that many believe that additional requirements must be imposed on our domestic manufacturers to ensure public health abroad. I do not question that well-intentioned motivation. At the same time, I would point out that no other country in the world imposes such requirements. As I have suggested previously, we should all take note of the perspective of Dr. John Petricciani, an official of the Massachusetts biotechnology firm, Genetics Institute, Inc. Prior to joining the private sector, Dr. Petricciani spent over 20 years in the Public Health Service, including serving as Director of the FDA Center for Biologics, head of the World Health Organization's biologicals unit and Deputy Director of the Public Health Service National AIDS Program Office. As Dr. Petricciani has stated: The real issue here is one of benefit and risk. Do the benefits to foreign countries in the current law outweigh the risks imposed on the U.S. in terms of draining jobs and capital investment in research, development, and manufacturing? As has been pointed out by others, one of the results of that drain is the earlier availability of products in Europe and elsewhere than in the U.S. If we were discussing electronics or automobiles, I would not be as concerned because the American people are not being placed at a meaningful disadvantage by such delays. However, the issue here is medical products that can make a very big difference in the health of the American people. The current law is resulting in new products being introduced first in foreign countries where U.S. firms are forced to manufacture them. I believe that we are paying far too high a price in terms of delayed availability of new products in the U.S. for the theoretical benefit being provided to developing countries. I would also like to point out that if a U.S. company really wanted to export a product that would be acceptable in the U.S., all they would have to do is manufacture it outside the U.S. and export it to a developing country. Now is the time to revise and reform the current export restrictions--both for public health and international trade considerations. The question is not whether we should change current law, but how we should change the current law. As I said earlier, I prefer the House language. But I am also a realist and recognize that to include a provision under unanimous consent today there will be some matters that will not be resolved to my satisfaction. I would like to review briefly the history of the development of this legislation in the 104th Congress. First, the companion bills, S.593/H.R. 1300 were introduced last March. The theory behind this legislation was simple and direct. Essentially, S. 593 and H.R. 1300 would harmonize the U.S. policy with the policy adopted by every major trading nation in the world. This would allow U.S. producers to sell their products freely to World Trade Organization-member countries so long as such products were not violative of the laws of the importing country. This is a good law and good policy and is the rule by which the rest of the world lives by. Because of concerns that such unfettered free trade might possibly subject citizens in Third-World countries to dangerous U.S. exports, a compromise was reached in the Labor Committee last July. The compromise would allow shipment of drugs to any country in the world if they were already approved by one of a list of some 20-odd countries deemed to have sophisticated drug approval and regulatory systems. The purpose of this so-called bank shot was to decrease the possibility that some small Third World country might somehow unwisely allow, or be somehow coerced to allow, dangerous products into its borders. In parallel with this bank shot, the Labor Committee compromise contemplated the creation of a so-called tier II list of countries with regulatory systems found adequate to protect the health and safety of their citizens. Drugs and devices could be shipped directly to those countries even in the absence of an approval of a Tier I country with a sophisticated drug approval system. Subsequent to the markup, the GAO was requested to provide technical assistance to help the Senate formulate tier II country criteria as well as technical assistance in helping the Senate to select an initial list of tier II countries. Understandably, and perhaps, unavoidably, the creation of these criteria and the initial list has presented contentious issues. Neither the GAO nor FDA are anxious to get involved in the middle of such an inherently complex issue. I believe there is agreement among sponsors of our amendment today that we will examine this issue in more detail in conference. I feel very strongly that we must allow opportunities for export beyond the tier I realm. That is the future of exports for our country. Where the GAO and FDA fear to tread, the Congress must, and should, march in. In the end, I think it is the responsibility of each government to design laws to protect its own citizens so I have philosophical concerns about a system that would preclude a U.S. company to ship a product to another country--even a third world country--when that country has decided to allow the use of that product. I know that some, including our colleague, Senator Simon, have, for good and legitimate reasons, raised concerns about the ability of small developing nations like Botswana to make these crucial regulatory decisions. I just question whether our Food and Drug Administration is as well-positioned as the public health authorities of another country, Botswana included, as to what products are suitable for its citizens. I am even more skeptical of the wisdom of not providing a tier II mechanism to provide, in the absence of a tier I country approval, direct shipment to countries like Russia, China, India, Brazil, and Argentina. Why should this Congress presume to forbid American manufacturers the opportunity to sell products in these countries after these governments have independently found that such products are legal to make and use? Can we not rely upon the Chinese and Russian governments to act in the best interests of its own citizens? I don't think that FDA approval, or the approval of a select list of tier I countries, should be a necessary condition for other countries to decide to approve, or for that matter disapprove, the use of a certain medical product. Accordingly, I believe that, American manufacturers should be given the same opportunity to compete with manufacturers of products approved for use in tier II, but not tier I, countries. Deciding which medical products to allow into the stream of commerce is an important power for each sovereign nation to exercise. In closing, I want to commend our colleagues in the House for developing a proposal which represents an improvement over the original version of S. 593/H.R. 1300. Frankly, I believe that the imminent hazard provisions of the House-passed bill grants sufficient authority to the Secretary of Health and Human Services to halt shipments of dangerous projects. As a practical matter, I don't think that the imminent hazard provisions of this new Senate amendment act much differently. We have an opportunity in the 104th Congress to enact FDA export legislation. This legislation can advance the public health of the United States and internationally. This legislation can benefit employees and potential employees of American medical products manufacturers. It is estimated by experts that each $1 billion in exports results in the creation of 20,000 new jobs for Americans. We in Congress have a unique opportunity and special responsibility to expand our trading markets for biomedical products. This legislation is consistent with advancing the public health and with our international trade policy. I commend Senators Gregg, Kassebaum, and Kennedy in moving this amendment and I look forward to working with my colleagues to see if we can resolve this issue in the conference committee.

Mr. HATCH

Mr. HATCH. Mr. President, I rise to introduce an amendment to the Independent Counsel Reauthorization Act of 1994. My legislation would provide travel expense reimbursements to appointees of the Office of Independent Counsel for successive 6-month periods after 1 year of service. This legislation is necessary because the Independent Counsel Reauthorization Act precludes attorneys and other staff fired by an independent counsel from receiving reimbursements for travel expenses they incur after they have worked for an independent counsel investigation for 18 months. Currently, the act authorizes only one 6- month extension for travel reimbursement purposes after 1 year of service. As a result, employees of the Independent Counsel may be forced to resign as they approach their 18-month anniversaries in order to avoid incurring the additional expense of living away from home for an extended period of time. These employees must then be replaced with new personnel having less knowledge and experience, thereby causing harm and delay to the Independent Counsel's investigation. The reimbursement limitation will begin to have full effect in the next 2 months, which is a critical time for the Independent Counsel's investigation. As the decision of the eighth circuit on March 15, 1996, reinstating the indictments against Gov. Jim Guy Tucker makes clear, the Independent Counsel's work has been effective in bringing to light public corruption at the highest levels. The trial of United States versus McDougal started on March 4, 1996. Seven employees, including four attorneys, will have reached their 18-month anniversaries by the end of the trial. Mr. President, Congress included the 18 month limitation to control spending and fiscal irresponsibility. But we did not anticipate an investigation such as this one, in which many individuals have been temporarily relocated to a remote office. The Independent Counsel's ability to complete the investigation in a timely manner may be seriously hindered, and costs may actually increase, if we do not pass this legislation. My legislation will remedy this problem by permitting Independent Counsel employees to receive travel reimbursements for successive 6-month periods after their first year of service, provided that such payment is certified at the beginning of each 6-month period as being in the public interest to carry out the purposes of the 1994 act. While some of us may have reservations about the constitutionality of an Independent Counsel or the current matters being investigated, we should all agree that if we are going to have an Independent Counsel, it must be given the necessary resources to do a thorough, complete job.

Mr. HATCH. Mr. President, today I am introducing the Music Licensing Reform Act of 1996: First, to clarify the ``home-style'' exemption provided by the Copyright Act for the public performance of nondramatic musical works; second, to regularize the commercial relations between the performing rights societies, which license such public performances, and their licensees, who are the proprietors of eating, drinking, and retail establishments, and third, to improve in general the oversight of the licensing practices of the two largest performing rights societies, the American Society of Composers, Authors, and Publishers [ASCAP] and Broadcast Music, Inc. [BMI]. Music licensing has been a matter of discussion for many years. There are strongly held views among all of those involved. I am committed to trying to resolve this matter, and this bill is a good-faith effort to do so. It is my hope that it can serve as a basis for further discussion. Commercial establishments, such as restaurants, bars, and retail stores, make money off of the public performance of musical works, whether it be from live performances, from sound recordings, or from radio and television. Commercial establishments play music or turn on radio and TV in order to make the eating, drinking, or shopping experience more pleasant. The ubiquity of these kinds of entertainment itself proves that businesses believe that it increases patronage. Recognizing that commercial establishments make money off of the creative output of songwriters, the Copyright Act of 1976 provided songwriters with the exclusive right of public performance, so that creators might share in the added value that their product creates. In doing so, the Copyright Act carries out the philosophy of the copyright clause of the Constitution, which sees economic reward as an important incentive to artistic creation. Mr. President, the Constitution was right. In 1993, the core copyright industries contributed approximately $238.6 billion to the U.S. economy, or 3.74 percent of the total GDP. These same core copyright industries contribute more to the U.S. economy and employ more people than any single manufacturing sector, and the growth rate of these industries continues to outpace the growth of the economy as a whole by a 2-to-1 ratio. With domestic sales topping $10 billion each year and annual foreign sales totaling over $12 billion, the music industry by itself accounts for a huge percentage of the American economy, and its popularity abroad provides a healthy component of the U.S. balance of trade. It is really not an exaggeration to say that American music dominates the globe. In fact, it is estimated that U.S. recorded music accounts for some 60 percent of the world market. Indeed, the United States is second to none in musical creativity. The prosperity of the music industry and the creative output of American composers and songwriters must be encouraged. At the same time, Mr. President, the Copyright Act recognizes that obtaining and paying for a license to play music should not be overly burdensome. Some of the burden of obtaining such a license is lessened by the performing rights societies, such as ASCAP, BMI, and SESAC. It would be intolerable for a restaurant, bar or store to monitor all the music that it performs and then search out the individual songwriter, composer, or publisher who owns the copyright in the music. Instead, a proprietor can go to the performing rights societies and purchase a blanket license and not worry about what music it plays, since ASCAP, BMI, and SESAC account for virtually all of the music that is normally played in the United States. exemption for small commercial establishments The average cost to restaurants and retail establishments of a blanket license from ASCAP for all public performances, whether by radio and TV or live, is $575 per year. BMI charges on the average less than $300 per year for eating and drinking establishments for public performance by radio and TV, and its retail establishment license for these performances ranges from $60 to $480 per year. These are not large sums of money, but they still could be burdensome for some small commercial establishments. So the Copyright Act also provides for an exemption, freeing some proprietors from any obligation to compensate songwriters for the use of their music. This exemption is found in section 110(5) of the Copyright Act and it effectively applies to establishments that turn on radio and TV for their customers' enjoyment. It is known as the ``homestyle'' exemption, because it exempts ``the public reception of the transmission on a single receiving apparatus of a kind commonly used in private homes.'' Congress felt--and rightly so--that small commercial establishments that turned on ordinary radio and TV sets would have a de minimis impact on the incentive to create that music licensing fees encourage. Unfortunately, a certain ambiguity was introduced into the exemption by the language of the House and conference reports of the Copyright Act of 1976, and this ambiguity has been exacerbated by the courts. Although the language of 110(5) only mentions sophistication of equipment, the courts have also considered such factors as the size of the establishment, and ability to pay for a license. Mr. President, the time has come to clarify the exemption regarding nondramatic musical works so that proprietors and performing rights societies can determine more precisely whether an establishment is exempt or not without having to engage in costly litigation. My bill does this by exempting ``small commercial establishment[s].'' This change simply recognizes the existing state of the law. In effect, the courts have looked at a host of relevant factors in order to decide whether an establishment should have the benefit of the exemption. This new bill directs the Register of Copyrights to define ``small commercial establishment'' by regulation, and provides guidance by listing the factors that the courts have considered, as well as other factors that are relevant to the determination. The register is not confined to these factors, however. In our rapidly changing technological environment, the expertise of the Copyright Office should not be hampered. The sound and video equipment that are common today may be obsolete in the not too distant future. The Copyright Office, unlike Congress, will be able to respond to these changes in the years ahead more quickly, with greater expertise, and with far less cost by engaging in other rule-making proceedings. If Congress legislates specific equipment and area requirements, as some have suggested, it will have to revisit this issue time and time again. Changing the language of 110(5) from ``homestyle'' equipment to the more general ``small commercial establishment'' may result in slightly expanding the exemption. The Copyright Office, therefore, must take care that it does not unduly upset the balance between the creative incentive on the one hand and concern for the burden on small businesses on the other. Furthermore, the Copyright Office must bear in mind our international obligations, especially the Berne Convention. We cannot very well insist that our musical works be protected outside the United States if we cut too deeply into the protection that musical works enjoy within our borders. Both the Register of Copyrights and the Commissioner of Patents and Trademarks have written to me that another bill dealing with the exemption, S. 1137, introduced by Senators Thomas and Brown, would violate the U.S. obligations under the Berne Convention. The bill that I am introducing today prevents this from happening by specifically prohibiting the Copyright Office from expanding the scope of the exemption beyond that permitted under the international treaty obligations of the United States. commercial relations between proprietors and performing rights societies Mr. President, this legislation addresses two areas of concern in the commercial relations between the proprietors of eating, drinking, and retail establishments who must acquire a license publicly to perform musical works and the performing rights societies who grant such licenses as agents for composers, songwriters, and publishers. First, in response to complaints from proprietors that the performing rights societies do not readily disclose information about their licensing fees and in response to complaints from the performing rights societies that proprietors do not readily disclose factual information about their establishments that is essential in charging them the appropriate fee, this bill directs the Register of Copyrights to promulgate regulations to establish a code of conduct, applicable to both sides, to govern their licensing negotiations and practices. The Copyright Office is in a much better position than Congress is to study the business practices that prevail in order to identify improvements that would make these practices fairer and more efficient. The Copyright Office is also in a better position to modify these regulations as times change. Second, my legislation directs the Copyright Office to promulgate regulations to ensure that a performing rights society provides reasonable access to its repertoire of songs and other musical compositions. The principle behind this part of the bill is easy to understand: If a person is going to be asked to pay a performing rights society in order to perform a work publicly, the payor should be able easily to verify whether the work is included in the society's repertoire. A buyer, after all, doesn't want to pay for goods that the seller has no right to sell. Complications arise, however, in determining what is reasonable access. Both ASCAP and BMI, for example, have already made their repertoires available on line. Is this sufficient to meet the needs of their licensees or is some more conventional means also called for? Since the copyright owners of musical compositions can cancel their agency contracts with the performing rights societies, how up-to-date must the repertoire be? What happens when a song has two authors, each of which is represented by a different society? Finally, what information needs to be supplied? Since almost all licenses are blanket licenses, giving the licensee the right to play all music in a society's repertoire, how important is detailed information on individual compositions? (Indeed, most persons engaged in the business of publicly performing copyrighted music routinely buy blanket licenses from ASCAP, BMI, and SESAC, thereby assuring that virtually all copyrighted music is covered.) It would be unwise to burden the performing rights societies with expensive obligations to provide information that is really not necessary. Clearly, Mr. President, this problem needs the investigative tools and fine-tuning that Congress is ill-equipped to provide. That is why the Register of Copyrights needs to examine the problem and provide clear and up-to-date regulations, after input from the relevant parties. general oversight of the licensing practices of ascap and bmi As I have already pointed out, Mr. President, a blanket license purchased from ASCAP and BMI will give the licensee the right publicly to perform virtually all the most popular music in the United States. For proprietors of eating, drinking, and retail establishments who play radio and TV for their customers, this is the easiest and most cost- effective way to go. This logic also applies to radio and TV broadcasters, who publicly perform countless musical works during their program days. There are, however, other businesses for whom the blanket license is not as attractive. Religious broadcasters, for example, may play music for a few, select programs, while the rest of their programming is devoted to talk. For these and other broadcasters similarly situated, a per program license seems more attractive. Now, a per program license is available from ASCAP and BMI; in fact, the antitrust consent decree under which ASCAP and BMI operate requires that they offer a per program license. The religious broadcasters, however, are dissatisfied with the price of the license, which, in some instances, costs more than a blanket license. ASCAP argues, however, that the administrative costs of the per program license are higher because it has to monitor the broadcasters to make sure that its music is used only for licensed programs. The religious broadcasters would have Congress determine a pricing formula for the per program license and put it in the Copyright Act, as currently provided in S. 1137. But arriving at a formula requires a study of the pricing mechanisms and an inquiry into all the factors that go into them. Again, this is something that Congress is ill- equipped to do. Moreover, it would simply spark demands by other music licensees to do the same for them. Fortunately, a forum for dealing with this issue already exists in the Rate Court of the U.S. District Court for the Southern District of New York. The Rate Court was set up pursuant to an antitrust consent decree that both ASCAP and BMI are party to, stemming from law suits against these performing rights societies that were brought many years ago. Indeed, the religious broadcasters are currently arguing the per program license pricing issue before the Rate Court in a suit brought against ASCAP. A decision is expected this year. A previous case involving ASCAP and the TV broadcasters over the same issue resulted in a decision favorable to the broadcasters. The religious broadcasters, therefore, have a reasonable expectation that their complaint will be decided in their favor and in the near future. Mr. President, I question the wisdom of having Congress establish a pricing formula for per program licenses for radio broadcasters. What Congress should be doing is looking at the overall structure and efficient functioning of the consent decree to make sure that it is working and that it is accessible to those, such as the religious broadcasters, who do not have the resources to engage in expensive, protracted litigation. This is precisely what the bill that I am introducing today proposes to do. It directs the Copyright Office to study the administration of the consent decree so that adjudication under the consent decree may be less time-consuming and more cost- effective, especially for parties with fewer resources. It may very well be, for example, that a system of local or regional arbitration may be more efficient and not too burdensome for the performing rights societies. The Judiciary Committee will consider very seriously the findings and recommendations of the Copyright Office. Although I disagree with S. 1137, I want to thank my distinguished colleague from Colorado, Senator Hank Brown, for his indefatigable attention to music licensing issues. Senator Brown spent several hours trying to work out a compromise that would be acceptable to the proprietors and religious broadcasters on the one hand and to the performing rights societies and the hundreds of composers and songwriters that they represent on the other. I also want to thank my distinguished colleague from South Carolina, Senator Strom Thurmond, who brought the concerns of the religious broadcasters to my attention. I urge them and all others interested in this issue to support the compromise legislation that I have introduced today, the Music Licensing Reform Act of 1996. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, today I am introducing the Music Licensing Reform Act of 1996: First, to clarify the ``home-style'' exemption provided by the Copyright Act for the public performance of nondramatic musical works; second, to regularize the commercial relations between the performing rights societies, which license such public performances, and their licensees, who are the proprietors of eating, drinking, and retail establishments, and third, to improve in general the oversight of the licensing practices of the two largest performing rights societies, the American Society of Composers, Authors, and Publishers [ASCAP] and Broadcast Music, Inc. [BMI]. Music licensing has been a matter of discussion for many years. There are strongly held views among all of those involved. I am committed to trying to resolve this matter, and this bill is a good-faith effort to do so. It is my hope that it can serve as a basis for further discussion. Commercial establishments, such as restaurants, bars, and retail stores, make money off of the public performance of musical works, whether it be from live performances, from sound recordings, or from radio and television. Commercial establishments play music or turn on radio and TV in order to make the eating, drinking, or shopping experience more pleasant. The ubiquity of these kinds of entertainment itself proves that businesses believe that it increases patronage. Recognizing that commercial establishments make money off of the creative output of songwriters, the Copyright Act of 1976 provided songwriters with the exclusive right of public performance, so that creators might share in the added value that their product creates. In doing so, the Copyright Act carries out the philosophy of the copyright clause of the Constitution, which sees economic reward as an important incentive to artistic creation. Mr. President, the Constitution was right. In 1993, the core copyright industries contributed approximately $238.6 billion to the U.S. economy, or 3.74 percent of the total GDP. These same core copyright industries contribute more to the U.S. economy and employ more people than any single manufacturing sector, and the growth rate of these industries continues to outpace the growth of the economy as a whole by a 2-to-1 ratio. With domestic sales topping $10 billion each year and annual foreign sales totaling over $12 billion, the music industry by itself accounts for a huge percentage of the American economy, and its popularity abroad provides a healthy component of the U.S. balance of trade. It is really not an exaggeration to say that American music dominates the globe. In fact, it is estimated that U.S. recorded music accounts for some 60 percent of the world market. Indeed, the United States is second to none in musical creativity. The prosperity of the music industry and the creative output of American composers and songwriters must be encouraged. At the same time, Mr. President, the Copyright Act recognizes that obtaining and paying for a license to play music should not be overly burdensome. Some of the burden of obtaining such a license is lessened by the performing rights societies, such as ASCAP, BMI, and SESAC. It would be intolerable for a restaurant, bar or store to monitor all the music that it performs and then search out the individual songwriter, composer, or publisher who owns the copyright in the music. Instead, a proprietor can go to the performing rights societies and purchase a blanket license and not worry about what music it plays, since ASCAP, BMI, and SESAC account for virtually all of the music that is normally played in the United States. exemption for small commercial establishments The average cost to restaurants and retail establishments of a blanket license from ASCAP for all public performances, whether by radio and TV or live, is $575 per year. BMI charges on the average less than $300 per year for eating and drinking establishments for public performance by radio and TV, and its retail establishment license for these performances ranges from $60 to $480 per year. These are not large sums of money, but they still could be burdensome for some small commercial establishments. So the Copyright Act also provides for an exemption, freeing some proprietors from any obligation to compensate songwriters for the use of their music. This exemption is found in section 110(5) of the Copyright Act and it effectively applies to establishments that turn on radio and TV for their customers' enjoyment. It is known as the ``homestyle'' exemption, because it exempts ``the public reception of the transmission on a single receiving apparatus of a kind commonly used in private homes.'' Congress felt--and rightly so--that small commercial establishments that turned on ordinary radio and TV sets would have a de minimis impact on the incentive to create that music licensing fees encourage. Unfortunately, a certain ambiguity was introduced into the exemption by the language of the House and conference reports of the Copyright Act of 1976, and this ambiguity has been exacerbated by the courts. Although the language of 110(5) only mentions sophistication of equipment, the courts have also considered such factors as the size of the establishment, and ability to pay for a license. Mr. President, the time has come to clarify the exemption regarding nondramatic musical works so that proprietors and performing rights societies can determine more precisely whether an establishment is exempt or not without having to engage in costly litigation. My bill does this by exempting ``small commercial establishment[s].'' This change simply recognizes the existing state of the law. In effect, the courts have looked at a host of relevant factors in order to decide whether an establishment should have the benefit of the exemption. This new bill directs the Register of Copyrights to define ``small commercial establishment'' by regulation, and provides guidance by listing the factors that the courts have considered, as well as other factors that are relevant to the determination. The register is not confined to these factors, however. In our rapidly changing technological environment, the expertise of the Copyright Office should not be hampered. The sound and video equipment that are common today may be obsolete in the not too distant future. The Copyright Office, unlike Congress, will be able to respond to these changes in the years ahead more quickly, with greater expertise, and with far less cost by engaging in other rule-making proceedings. If Congress legislates specific equipment and area requirements, as some have suggested, it will have to revisit this issue time and time again. Changing the language of 110(5) from ``homestyle'' equipment to the more general ``small commercial establishment'' may result in slightly expanding the exemption. The Copyright Office, therefore, must take care that it does not unduly upset the balance between the creative incentive on the one hand and concern for the burden on small businesses on the other. Furthermore, the Copyright Office must bear in mind our international obligations, especially the Berne Convention. We cannot very well insist that our musical works be protected outside the United States if we cut too deeply into the protection that musical works enjoy within our borders. Both the Register of Copyrights and the Commissioner of Patents and Trademarks have written to me that another bill dealing with the exemption, S. 1137, introduced by Senators Thomas and Brown, would violate the U.S. obligations under the Berne Convention. The bill that I am introducing today prevents this from happening by specifically prohibiting the Copyright Office from expanding the scope of the exemption beyond that permitted under the international treaty obligations of the United States. commercial relations between proprietors and performing rights societies Mr. President, this legislation addresses two areas of concern in the commercial relations between the proprietors of eating, drinking, and retail establishments who must acquire a license publicly to perform musical works and the performing rights societies who grant such licenses as agents for composers, songwriters, and publishers. First, in response to complaints from proprietors that the performing rights societies do not readily disclose information about their licensing fees and in response to complaints from the performing rights societies that proprietors do not readily disclose factual information about their establishments that is essential in charging them the appropriate fee, this bill directs the Register of Copyrights to promulgate regulations to establish a code of conduct, applicable to both sides, to govern their licensing negotiations and practices. The Copyright Office is in a much better position than Congress is to study the business practices that prevail in order to identify improvements that would make these practices fairer and more efficient. The Copyright Office is also in a better position to modify these regulations as times change. Second, my legislation directs the Copyright Office to promulgate regulations to ensure that a performing rights society provides reasonable access to its repertoire of songs and other musical compositions. The principle behind this part of the bill is easy to understand: If a person is going to be asked to pay a performing rights society in order to perform a work publicly, the payor should be able easily to verify whether the work is included in the society's repertoire. A buyer, after all, doesn't want to pay for goods that the seller has no right to sell. Complications arise, however, in determining what is reasonable access. Both ASCAP and BMI, for example, have already made their repertoires available on line. Is this sufficient to meet the needs of their licensees or is some more conventional means also called for? Since the copyright owners of musical compositions can cancel their agency contracts with the performing rights societies, how up-to-date must the repertoire be? What happens when a song has two authors, each of which is represented by a different society? Finally, what information needs to be supplied? Since almost all licenses are blanket licenses, giving the licensee the right to play all music in a society's repertoire, how important is detailed information on individual compositions? (Indeed, most persons engaged in the business of publicly performing copyrighted music routinely buy blanket licenses from ASCAP, BMI, and SESAC, thereby assuring that virtually all copyrighted music is covered.) It would be unwise to burden the performing rights societies with expensive obligations to provide information that is really not necessary. Clearly, Mr. President, this problem needs the investigative tools and fine-tuning that Congress is ill-equipped to provide. That is why the Register of Copyrights needs to examine the problem and provide clear and up-to-date regulations, after input from the relevant parties. general oversight of the licensing practices of ascap and bmi As I have already pointed out, Mr. President, a blanket license purchased from ASCAP and BMI will give the licensee the right publicly to perform virtually all the most popular music in the United States. For proprietors of eating, drinking, and retail establishments who play radio and TV for their customers, this is the easiest and most cost- effective way to go. This logic also applies to radio and TV broadcasters, who publicly perform countless musical works during their program days. There are, however, other businesses for whom the blanket license is not as attractive. Religious broadcasters, for example, may play music for a few, select programs, while the rest of their programming is devoted to talk. For these and other broadcasters similarly situated, a per program license seems more attractive. Now, a per program license is available from ASCAP and BMI; in fact, the antitrust consent decree under which ASCAP and BMI operate requires that they offer a per program license. The religious broadcasters, however, are dissatisfied with the price of the license, which, in some instances, costs more than a blanket license. ASCAP argues, however, that the administrative costs of the per program license are higher because it has to monitor the broadcasters to make sure that its music is used only for licensed programs. The religious broadcasters would have Congress determine a pricing formula for the per program license and put it in the Copyright Act, as currently provided in S. 1137. But arriving at a formula requires a study of the pricing mechanisms and an inquiry into all the factors that go into them. Again, this is something that Congress is ill- equipped to do. Moreover, it would simply spark demands by other music licensees to do the same for them. Fortunately, a forum for dealing with this issue already exists in the Rate Court of the U.S. District Court for the Southern District of New York. The Rate Court was set up pursuant to an antitrust consent decree that both ASCAP and BMI are party to, stemming from law suits against these performing rights societies that were brought many years ago. Indeed, the religious broadcasters are currently arguing the per program license pricing issue before the Rate Court in a suit brought against ASCAP. A decision is expected this year. A previous case involving ASCAP and the TV broadcasters over the same issue resulted in a decision favorable to the broadcasters. The religious broadcasters, therefore, have a reasonable expectation that their complaint will be decided in their favor and in the near future. Mr. President, I question the wisdom of having Congress establish a pricing formula for per program licenses for radio broadcasters. What Congress should be doing is looking at the overall structure and efficient functioning of the consent decree to make sure that it is working and that it is accessible to those, such as the religious broadcasters, who do not have the resources to engage in expensive, protracted litigation. This is precisely what the bill that I am introducing today proposes to do. It directs the Copyright Office to study the administration of the consent decree so that adjudication under the consent decree may be less time-consuming and more cost- effective, especially for parties with fewer resources. It may very well be, for example, that a system of local or regional arbitration may be more efficient and not too burdensome for the performing rights societies. The Judiciary Committee will consider very seriously the findings and recommendations of the Copyright Office. Although I disagree with S. 1137, I want to thank my distinguished colleague from Colorado, Senator Hank Brown, for his indefatigable attention to music licensing issues. Senator Brown spent several hours trying to work out a compromise that would be acceptable to the proprietors and religious broadcasters on the one hand and to the performing rights societies and the hundreds of composers and songwriters that they represent on the other. I also want to thank my distinguished colleague from South Carolina, Senator Strom Thurmond, who brought the concerns of the religious broadcasters to my attention. I urge them and all others interested in this issue to support the compromise legislation that I have introduced today, the Music Licensing Reform Act of 1996. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, I rise to introduce an amendment to the Independent Counsel Reauthorization Act of 1994. My legislation would provide travel expense reimbursements to appointees of the Office of Independent Counsel for successive 6-month periods after 1 year of service. This legislation is necessary because the Independent Counsel Reauthorization Act precludes attorneys and other staff fired by an independent counsel from receiving reimbursements for travel expenses they incur after they have worked for an independent counsel investigation for 18 months. Currently, the act authorizes only one 6- month extension for travel reimbursement purposes after 1 year of service. As a result, employees of the Independent Counsel may be forced to resign as they approach their 18-month anniversaries in order to avoid incurring the additional expense of living away from home for an extended period of time. These employees must then be replaced with new personnel having less knowledge and experience, thereby causing harm and delay to the Independent Counsel's investigation. The reimbursement limitation will begin to have full effect in the next 2 months, which is a critical time for the Independent Counsel's investigation. As the decision of the eighth circuit on March 15, 1996, reinstating the indictments against Gov. Jim Guy Tucker makes clear, the Independent Counsel's work has been effective in bringing to light public corruption at the highest levels. The trial of United States versus McDougal started on March 4, 1996. Seven employees, including four attorneys, will have reached their 18-month anniversaries by the end of the trial. Mr. President, Congress included the 18 month limitation to control spending and fiscal irresponsibility. But we did not anticipate an investigation such as this one, in which many individuals have been temporarily relocated to a remote office. The Independent Counsel's ability to complete the investigation in a timely manner may be seriously hindered, and costs may actually increase, if we do not pass this legislation. My legislation will remedy this problem by permitting Independent Counsel employees to receive travel reimbursements for successive 6-month periods after their first year of service, provided that such payment is certified at the beginning of each 6-month period as being in the public interest to carry out the purposes of the 1994 act. While some of us may have reservations about the constitutionality of an Independent Counsel or the current matters being investigated, we should all agree that if we are going to have an Independent Counsel, it must be given the necessary resources to do a thorough, complete job.

Mr. HATCH

Mr. HATCH. Mr. President, today I am going to offer an amendment to increase the drug czar's office. I think it is critical to this country that we start taking the matter of drug control more seriously than we have over the last number of years. So, I rise to offer an amendment to provide an adequate level of funding for the Office of National Drug Control Policy, better known as the drug czar's office. This amendment increases ONDCP's budget by a modest $3.9 million to a total of $11.4 million for fiscal year 1996. That is still well below ONDCP's funding level during President Bush's administration but higher than the administration has requested. In fiscal year 1992, when George Bush was President, ONDCP was getting $18.1 million for operating expenses. We all know why this amendment is necessary. By many accounts, President Clinton has downgraded the war on drugs. One of his first acts upon taking office was to cut the drug czar's staff from 146 down to 25. The President said he was fulfilling a campaign pledge to cut staff, but several of us on both sides of the aisle warned that the new drug czar would not be effective without the tools to do his job. We were right. Indeed, the President's own drug czar conceded in 1993 that drugs were no longer ``at the top of the agenda.'' That was in the Washington Post on July 8, 1993. For 3 years, President Clinton gave us an imbalanced strategy focusing primarily on the treatment of hardcore users. The strategy left law enforcement and interdiction agencies twisting in the wind. Federal drug prosecutions fell, drug seizures dropped, the ability of U.S. forces to seize or otherwise turn back drug shipments in the transit zone plummeted by 53 percent. This is just over the first 3 years of President Clinton's administration. Although the President's stated policy was to focus on hardcore users, President Clinton also presided over record increases in the quality and purity of drugs reaching American streets, as well as staggering increases in the number of drug-related emergency room admissions of hardcore users. As for supply reduction efforts, there appeared to be none. As recently as 1 month ago, White House staff were arguing that more money for interdiction would be wasted money. This irresponsible talk was coming from people who are supposed to be advocates for the drug war, not advocates against the drug war. It is indisputable that under President Clinton's leadership, we have been losing ground on this issue. Just look at what has happened since 1992 with our young people. Last year, the number of 12 to 17-year-olds using marijuana hit 2.9 million, almost double the 1992 level, according to the National Household Survey on Drug Abuse in November of 1995. LSD use is way up among high school seniors. Mr. President, 11.7 percent of the class of 1995 have tried it at least once. That is the highest rate since recordkeeping started in 1975. A parents' group survey released this November found that one in three high school seniors now smoke marijuana--one in three. Methamphetamine abuse has become a major problem, particularly in the Western States, including mine. Emergency room cases are up 256 percent over the 1991 level. After 3 years of inaction, President Clinton now wants to give his drug officials a fighting chance. OMB has requested $3.4 million to beef up the office. This will allow them to hire 80 additional staff. Mr. President, in closing, I want to give the President some credit for giving us a new drug czar who, by all accounts, is dynamic and energetic. The unanswered question here is whether the selection of General McCaffrey signals President Clinton's newfound commitment to lead in the drug war or whether it is more simply an election year makeover. Adopting this amendment is ultimately about helping our children, about helping the 48.4 percent of the class of 1995 that had tried drugs by graduation day. It is about doing something to stem the increasing number of 12 to 17-year olds using marijuana, currently 2.9 million of them. I urge my colleagues to support this amendment and give General McCaffrey the tools he needs to do this job. Mr. President, we have to get serious about this drug problem. It is eating us alive. It is funding most, if not all, of the organized crime in this country. It is debilitating our young people. One in three seniors is trying marijuana, one in three senior high school students in the senior class happens to be trying marijuana. Think about that. There is an 85 times greater likelihood for them to move on to harder drugs, especially cocaine, if they have tried marijuana. The vast majority of these kids think, today, both users and nonusers, that marijuana usage is less harmful to them than ordinary tobacco usage, than smoking simple cigarettes. Both, as anyone who knows anything about health will tell you, both are harmful to you. It is terrible to smoke cigarettes because they are going to lead to cancer and heart disease and a whole raft of other problems, but it is even worse to smoke marijuana, which can lead to all kinds of debilitations that deteriorate our society as a whole and make it difficult for people to do what is right and to live up to what is right. On top of all that, we have those in the administration who are arguing that the only side of the equation that really needs to receive some consideration happens to be the demand side, that means those who are taking drugs. They take the limited resources that we have and put almost all of them toward hard-core drug addicts, of whom the potential of saving is very, very low. I am not saying we should not help hard-core drug addicts. We should. But we certainly ought to be putting what limited resources we have into helping these first-time offenders and these young kids who have really got caught up in the drug world to come out of it and rehabilitate themselves. It is important to do the demand side of the equation. I am for that. I think we ought to put money in that, and the drug czar needs to spend some time on it. But unless we are doing the supply side as well, we will never make any headway because we have to interdict and stop the flow of drugs coming into this country and we have to interdict and stop those who are making drugs in this country, especially with the new methamphetamine rise that is inundating the Western States and is moving eastward with rapidity. We have to start fighting against these things, and we have to have our young people understand the importance of fighting against drug abuse in our society today. I look at all the drive-by shootings, kids with weapons, the murders in our country's Capital here. I look at all these things, and I know that a lot of this is driven by the drug trade, it is driven by the drug community, it is driven by those who should know a lot better. Mr. President, there is a second half to this amendment that we are going to file here today. This is an amendment that I am filing on behalf of myself and Senator Grassley. We are adding various funds to the budget, even above what the President has requested for the drug czar, because I believe that this drug czar has to have our support, and we simply have to do a good job in helping him to get his job done. Let me just say that, in addition to the drug czar's office, we are including in this amendment that no less than $20 million shall be for the District of Columbia Metropolitan Police Department to be used at the discretion of the police chief for law enforcement purposes, conditioned upon appropriate consultation with the chairmen and ranking members of the House-Senate Committees on the Judiciary and Appropriations. In other words, what we are going to do is we are going to quit mouthing off about the greatest city in the world and how corrupt it is and how drug ridden it is and how murder ridden it is, and we are going to put our money where our mouths are and put $20 million into helping this police chief to clean up this mess. I met with Chief Soulsby a week ago. I have to say I have a lot of confidence in him. One of his problems is that he has politicians interfering with the use of these law enforcement moneys from time to time. We are going to stop that by giving these funds directly to him. He will have to consult with both the Judiciary Committees of the House and the Senate and both of the Appropriations Committees of the House and the Senate as to how he is going to use these funds. We are going to give him a chance to straighten this out and to start making a turnaround on what is needed here in the District of Columbia. If we find $20 million is not enough to really make that much of a dent, I will come back and fight for more. This is the greatest city on Earth, in the sense of governmental action. This is the seat of our Government. It is an absolute crime that people cannot walk down the streets in the District of Columbia without absolute assurance they are not going to be shot by some drug- infested, drug-crazed human being, or that they are safe in their homes, which is what is happening here. Not only are they not safe on the streets, they are not even safe in their homes. The people of this community, the vast majority of whom are law-abiding, decent, honorable, religious citizens, deserve better. I am convinced that Chief Soulsby will do an excellent job if he is not hindered by some of the politicians in this town. By the way, I think some of the politicians are very good, so I do not mean to lump them all in a category of people who have been part of the problem here. But there are some who are part of the problem as well. There are some in the police department who need to be put in the appropriate positions or drummed out of the department. I am hoping that Chief Soulsby will set a system in motion that will get the very best people to be part of our police department in the metropolitan police department of Washington, DC. This is the first step of trying to make this a better system. But while we are making this first step in accordance with what I said I would do, then I think we ought to also consider that we have 37 different Federal law enforcement organizations in this town, 37 different Federal law enforcement agencies. They are not coordinated with the metropolitan police department. We have to use all these agencies to make this the safest and most important capital city in the world. I think we have to put our money where our mouths are and we have to start now. I am going to rely on Chief Soulsby, and the administration of the city under Mayor Barry. I am going to rely on the help of Eleanor Holmes Norton, who is the Representative over in the House of Representatives, who I believe is very eager to do a good job in this area for her constituents and for whom I have the greatest fondness and admiration, and others who, in the best interest of this city, want to do what is right. So, Mr. President, I send an amendment to the desk, and I ask for its immediate consideration.