[Congressional Record Volume 142, Number 138 (Monday, September 30, 1996)]
[Senate]
[Pages S11838-S11845]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             OMNIBUS CONSOLIDATED APPROPRIATIONS ACT, 1997

  The Senate continued with the consideration of the bill.
  Mr. HATCH. Mr. President, we are coming on to the end of this 
session. It is a very, very important session. I think we have 
accomplished a lot in this Congress. We have made changes, seen major 
changes in how the budget is going to be handled. We now have the 
President of the United States talking, for the first time--a 
Democratic President talking for the first time--in 60 years about 
balancing the budget. I do not think we have any choice in the matter. 
We have to move toward a balanced budget.
  But we have to see change in welfare reform. For the first time we 
have actually done something to entitlement programs. We have certainly 
passed a whole raft of other bills that are outlined in the newspapers 
almost on a daily basis. I think people are amazed what a terrific and 
important Congress this has been.
  I would like to just take a few minutes this morning to address some 
of the measures in the omnibus bill before the Senate. One such measure 
is the vast bulk of the immigration conference report. The American 
people expect the Federal Government to control our country's borders. 
We have not yet done so. The American people expect Congress and the 
President to strengthen the national effort against illegal 
immigration.
  Despite the last-minute political gamesmanship of the President, we 
have included in the omnibus measure provisions dealing with the 
problem of illegal immigration. This omnibus measure includes the 
conference report on H.R. 2202, the Illegal Immigration Reform and 
Immigrant Responsibility Act of 1996, with certain modifications to 
title V of the conference report. The legislative history of the 
immigration portion of this measure includes the legislative history of 
H.R. 2202 and S. 1664, with their accompanying committee reports and 
floor debates and, in addition, a joint explanatory statement of the 
committee of conference in Report 104-828.
  The American people should make no mistake about it. There is no 
thanks owed to President Clinton for this achievement.
  On August 2, 1996, President Clinton wrote to Speaker Gingrich. 
Remarkably, he said unequivocally he would veto this bill even with the 
significantly modified Gallegly provision on public education for 
illegal aliens, a compromise which was not even yet at that point in 
final form. Republican conferees removed that provision from the 
proposed conference report, a draft of which was initially circulated 
on September 10, 1996. It was the only issue upon which the President 
said he would veto this bill.
  The President had 2 weeks before the actual conference to register 
other objections to the draft conference report. Yet, only after the 
conference committee met and filed its report did the President 
interpose final objections related to title V of the conference report, 
which addresses immigrants' financial responsibilities. The President 
was apparently willing to shut down the Government or kill the 
immigration bill on his last-minute demands. The immigration measure in 
this appropriations bill now contains further concessions to the 
President. We have finally cleared away the obstructions, and it is my 
understanding that he no longer has any major objections.

  This bill is an important bill. It cracks down on illegal 
immigration. Among other things, it builds up and strengthens the 
Border Patrol. It authorizes 5,000 new agents and 1,500 new support 
personnel for the Border Patrol over the next 5 years. This increase 
basically doubles the size of the Border Patrol. The proposal adds as 
many as 450 investigators and related personnel to combat illegal alien 
smuggling into our country over 3 years. The bill provides 300 
personnel to investigate those who overstay their visas and thus remain 
illegally in our country.
  The conference report requires the Attorney General to establish an 
automated entry and exit control system to match arriving and departing 
aliens and to identify visa overstayers. It authorizes acquisition of 
improved equipment and technology for border control, including 
helicopters, four-wheel drive vehicles, night vision scopes and sensor 
units, just to name a few things.
  The bill adds civil penalties to existing criminal penalties against 
aliens illegally entering our country. Criminal and civil penalties for 
document fraud are increased. Criminal penalties against those who 
smuggle aliens into our country are also increased. High speed flight 
from an INS checkpoint is a felony punishable by up to 5 years 
imprisonment under this bill.
  The bill makes it illegal to falsely claim American citizenship with 
the purpose of obtaining any Federal or State benefit or service or for 
the purpose of voting or registering to vote in any Federal, State or 
local election.
  This bill gives the INS, the Immigration and Naturalization Service, 
wiretap authority in alien smuggling and document fraud cases.
  The bill broadens the definition of ``aggravated felony'' for 
purposes of our immigration laws, even beyond the new Terrorism Act, to 
include crimes of rape and sexual abuse of a minor. It lowers the fine 
threshold for money laundering from $100,000 to $10,000. It decreases 
the imprisonment threshold for theft, violence, racketeering, and 
document fraud from 5 years to 1 year. That is the threshold. The 
broadened definition of aggravated felony adds new offenses related to 
gambling, bribery, perjury, revealing the identity of undercover 
agents, and transporting prostitutes. What does this mean? More 
criminal aliens will be deportable and fewer will be eligible for 
waivers of deportation.
  To assist in the identification and removal of deportable criminal 
aliens, the bill authorizes the registration of

[[Page S11839]]

aliens on probation or parole; requires that the criminal alien 
identification system be used to assist Federal, State, and local law 
enforcement agencies in identifying and locating removable criminal 
aliens; and authorizes $5 million per year from 1997 to 2001 for the 
criminal alien tracking center. The bill also provides that funds under 
the State Criminal Alien Assistance Program may be used for costs of 
imprisoning criminal aliens in State or local facilities.
  This bill also provides that the fee for adjustment of status be 
increased to $1,000 and that at least 80 percent of those fees be spent 
on enhancing the Immigration and Naturalization Service's capacity to 
detain criminal aliens and others subject to detention. The bill also 
authorizes $150 million for detaining and removing deportable and 
inadmissible aliens.

  To facilitate legal entry, this measure provides for increased full-
time land border inspectors to ensure full staffing of border crossing 
lanes during peak crossing hours. The bill will result in the 
establishment of preinspection stations at a limited number of foreign 
airports.
  These provisions are desperately needed to stem the tide of illegal 
immigration.
  I note that I am not happy with all of the immigration bill's 
provisions, but I have to say, I do not think anybody is. The vast 
majority of them, however, are good provisions. But let me give you a 
couple of illustrations that I am not very happy about. It adds, for 
example, personnel for the enforcement of employer sanctions. I believe 
we ought to repeal employer sanctions outright as a costly, 
counterproductive failure. I cannot help but note that President 
Clinton has gone much further than even this bill proposes by signing 
an Executive order penalizing Federal contractors who violate the 
employer sanctions law. In doing so, he not only throws more good money 
after bad, he is inadvertently fostering more discrimination against 
those ethnic minorities in our society who look and sound different 
from the majority.
  I am no fan of verification schemes, and I am skeptical that the 
pilot programs provided for in this bill will be worthwhile. Here 
again, the President is already using existing authority to implement 
verification projects, which I do not believe can work on a national 
scale.

  Despite my great reluctance, I have agreed to allow the Attorney 
General to certify to Congress that she cannot comply with the 
mandatory criminal alien detention provisions of the recently enacted 
terrorism law, antiterrorism law, thereby obtaining a 1-year grace 
period which could be extended or can be extended under this bill for 1 
additional year on top of that 1-year grace period. The Clinton 
administration has been tenacious in pleading with Congress to ease 
this criminal alien detention requirement. I would have preferred that 
the administration find facilities necessary to implement these 
provisions.
  On balance, though, the immigration bill is a very worthy measure, 
and I am pleased that it has been included in the omnibus spending 
bill.
  I ask unanimous consent a statement of legislative history be printed 
in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

              Division C: Statement of Legislative History

       Division C shall be considered as the enactment of the 
     Conference Report (Rept. 104-828) on H.R. 2202, the Illegal 
     Immigration Reform and Immigrant Responsibility Act of 1996, 
     with certain modifications to Title V of the Conference 
     Report.
       The legislative history of Division C shall be considered 
     to include the Joint Explanatory Statement of the Committee 
     of Conference in Report 104-828, as well as the reports of 
     the Committees on the Judiciary, Agriculture, and Economic 
     and Educational Opportunities of the House of Representatives 
     on H.R. 2202 (Rept. 104-469, Parts I, II, and III), and the 
     report of the Committee on the Judiciary of the Senate on S. 
     1664 (Rept. 104-249).
       The following records the disposition in Division C of the 
     provisions in Title V of the Conference Report. (The 
     remaining Titles of the Conference Report have not been 
     modified.) Technical and conforming amendments are not noted.
       Section 500: Strike.
       Section 501: Modify to amend section 431 of the Personal 
     Responsibility and Work Opportunity Reconciliation Act of 
     1996 (Public Law 104-193) to insert the provisions in section 
     501(c)(2) of the Conference Report relating to an exception 
     to ineligibility for benefits for certain battered aliens. 
     Strike all other provisions of section 501
       Section 502: Modify to authorize States to establish pilot 
     programs, pursuant to regulations promulgated by the Attorney 
     General. Under the pilot programs, States may deny drivers' 
     licenses to illegal aliens and otherwise determine the 
     viability, advisability, and cost effectiveness of denying 
     driver's licenses to aliens unlawfully in the United States.
       Section 503: Strike.
       Section 504: Redesignate as section 503 and modify to 
     include only amendments to section 202 of the Social Security 
     Act, and new effective date. Strike all other provisions.
       Section 505: Redesignate as section 504 and modify to amend 
     section 432(a) of the Personal Responsibility and Work 
     Opportunity Reconciliation Act of 1996 to provide that the 
     Attorney General shall establish a procedure for persons 
     applying for public benefits to provide proof of citizenship. 
     Strike all other provisions.
       Section 506: Strike.
       Section 507: Redesignate as section 505.
       Section 508. Redesignate as section 506 and modify. Strike 
     subsection (a) and modify requirements in subsection (b) 
     regarding Report of the Comptroller General.
       Section 509. Redesignate as section 507.
       Section 510. Redesignate as section 508. Modify subsection 
     (a) and redesignate as an amendment to section 432 of the 
     Personal Responsibility and Work Opportunity Reconciliation 
     Act of 1996. Strike subsection (b).
       Section 511. Redesignate as section 509. Modify to change 
     references to ``eligible aliens'' to ``qualified aliens'' and 
     make other changes in terminology.
       Section 531. No change.
       Section 532. Strike.
       Section 551. Modify to reduce sponsor income requirements 
     to 125 percent of poverty level. Strike subsection (e) of 
     Immigration and Nationality Act (INA) section 213A as added 
     by this section. Make other changes to conform INA section 
     213A as added by this section to similar provision enacted in 
     the Personal Responsibility and Work Opportunity 
     Reconciliation Act of 1996. Strike subsection (c).
       Section 552. Modify to amend section 421 of the Personal 
     Responsibility and Work Opportunity Reconciliation Act of 
     1996 to include the provisions in section 552(d)(1) and 
     552(f). Strike all other provisions.
       Section 553. Strike.
       Section 554. Redesignate as section 553.
       Section 561. No change.
       Section 562. Strike.
       Section 563. Redesignate as section 562.
       Section 564. Redesignate as section 563.
       Section 565. Redesignate as section 564.
       Section 566. Redesignate as section 565 and modify to 
     strike (4).
       Sections 571 through 576. Strike and insert sections 221 
     through 227 of the Senate amendment to H.R. 2202, as 
     modified.
       Section 591. No change.
       Section 592. Strike.
       Section 593. Redesignate as 592.
       Section 594. Redesignate as 593.
       Section 595. Redesignate as 594.

  Mr. ABRAHAM. Mr. President, I would like to ask the Chairman of the 
Judiciary Committee a few questions to clarify the changes made in the 
asylum provisions of the Senate immigration bill when the House and 
Senate conferees adopted the conference report on H.R. 2202, the 
Illegal Immigration Reform and Immigrant Responsibility Act of 1996. 
These provisions are included in this omnibus appropriations measure. 
Senator Hatch was a conferee on this legislation and was deeply 
involved in the development of this provision.
  Section 604 of the conference report would add to the Immigration and 
Nationality Act a new section providing that an alien may not apply for 
asylum unless he or she demonstrates by clear and convincing evidence 
that the application has been filed within 1 year after the date of the 
alien's arrival in the United States. That section also includes two 
important exceptions--one for changed circumstances that materially 
affect the applicant's eligibility for asylum, and the other relating 
to the delay in filing an application. Would the Chairman explain the 
meaning of these exceptions?
  Mr. HATCH. The conference report does include a 1-year time limit, 
from the time of entering the United States, on filing applications for 
asylum. Conferees also adopted important exceptions, both for changed 
circumstances that materially affect an applicant's eligibility for 
asylum and for extraordinary circumstances that relate to the delay in 
filing the application.
  Like my distinguished colleague from Michigan, I too supported the 
Senate provision, which received overwhelming, bipartisan support in 
the Senate. In fact, that provision was

[[Page S11840]]

adopted by an amendment in the Judiciary Committee that passed by 
unanimous consent. The Senate provisions had established a 1-year time 
limit only on defensive claims of asylum, that is, those raised for the 
first time in deportation proceedings, and provided for a good cause 
exception.
  Let me say that I share the Senator's concern that we continue to 
ensure that asylum is available for those with legitimate claims of 
asylum. The way in which the time limit was rewritten in the conference 
report--with the two exceptions specified--was intended to provide 
adequate protections to those with legitimate claims of asylum. I 
expect that circumstances covered by the Senate's good cause exception 
will likely be covered by either the changed circumstances exception or 
the extraordinary circumstances exception contained in the conference 
report language. The conference report provision represents a 
compromise in that, unlike the Senate provision, it applies to all 
claims of asylum, whether raised affirmatively or defensively.
  Mr. ABRAHAM. Would you say that the intent in the changed 
circumstances exception is to cover a broad range of circumstances that 
may have changed and that affect the applicant's ability to obtain 
asylum?
  Mr. HATCH. Yes. That exception is intended to deal with circumstances 
that changed after the applicant entered the United States and that are 
relevant to the applicant's eligibility for asylum. The changed 
circumstances provision will deal with situations like those in which 
the situation in the alien's home country may have changed, the 
applicant obtains more information about likely retribution he or she 
might face if the applicant returned home, and other situations that we 
in Congress may not be able to anticipate at this time.
  Mr. ABRAHAM. It is my understanding that the second exception, for 
extraordinary circumstances, relates to legitimate reasons excusing the 
alien's failure to meet the 1-year deadline. Is that the case?
  Mr. HATCH. Yes, the extraordinary circumstances exception applies to 
reasons that are, quite literally, out of the ordinary and that explain 
the alien's inability to meet the 1-year deadline. Extraordinary 
circumstances excusing the delay could include, for instance, physical 
or mental disability, unsuccessful efforts to seek asylum that failed 
due to technical defects or errors for which the alien was not 
responsible, and other extenuating circumstances.
  Mr. ABRAHAM. If the time limit and the exceptions you have discussed 
do not provide sufficient protection to aliens with bona fide claims of 
asylum, I will be prepared to work with my colleagues to address that 
problem. Is my understanding correct that you too will pay close 
attention to how this provision is interpreted?
  Mr. HATCH. Yes. Like you, I am committed to ensuring that those with 
legitimate claims of asylum are not returned to persecution, 
particularly for technical deficiencies. If the time limit is not 
implemented fairly, or cannot be implemented fairly, I will be prepared 
to revisit this issue in a later Congress. I would also like to let the 
Senator from Michigan know how much I appreciate his commitment and 
dedication on this issue.
  Mr. ABRAHAM. Thank you. I would likewise thank the Chairman of the 
Judiciary Committee for his diligent efforts on this issue in 
conference and his explanation of the conference report's provisions.
  Mr. HATCH. I will note, briefly, that the bill modifies the 
antiterrorism law's provisions on summary exclusion, in order to better 
assure that those who are bona fide asylees are not erroneously 
compelled to leave this country.
  On a related point, the Clinton administration has recently announced 
its plans to cut refugee admissions next year to 78,000. I oppose this 
cut. In fiscal year 1995, the level was 110,000. Last year, the level 
of refugee admissions was set at 90,000. I believe we should set the 
same level of 90,000 refugee admissions for next year. A further cut is 
unwarranted, especially with the renewed steps against alien 
immigration embodied in the bill. Moreover, I think it sends the wrong 
signal to the world.
  A Hatch-Biden substitute for my Child Pornography Protection Act, S. 
1237, has been included in the omnibus measure. I thank the 
appropriators on both sides of the aisle for their cooperation in 
including this important measure in this omnibus bill. The legislative 
history of the child pornography provisions of this bill includes the 
legislative history of S. 1237, including the report of the Committee 
of the Judiciary, Report 104-358.
  Senators Feinstein and Grassley have important provisions in the 
child pornography provisions of this measure and I want to thank them, 
as well as Senator Biden, for their important work on these matters. 
They have done a very good job, and I have a lot of respect for my 
colleagues.


                    Child Pornography Prevention Act

  Mr. HATCH. Mr. President, modern computer imaging and morphing 
technology has made possible the production of pornographic depictions 
of minors which are virtually indistinguishable to the unsuspecting 
viewer from unretouched photographs of actual children engaging in 
sexually explicit conduct.
  Such computer generated child pornography has many of the same 
harmful effects, and thus poses the same threat to the physical and 
mental health, safety and well-being of our children and of our society 
as pornographic material produced using actual children. However, 
because current Federal law pertaining to the sexual exploitation of 
children and the production, distribution, possession, sale, or 
transportation of child pornography is limited to material produced 
using actual children engaging in sexually explicit conduct, computer 
generated child pornography is presently outside the scope of Federal 
law.
  The omnibus bill includes the Child Pornography Prevention Act of 
1996. This act will close this computer generated loophole and give our 
law enforcement authorities the tools they need to protect our children 
by stemming the increasing flow of high-technology child pornography.
  The Child Pornography Prevention Act, as introduced, as S. 1237, 
addresses the problem of ``high-tech kiddie porn'' by creating a 
comprehensive statutory definition of the term ``child pornography'' to 
include visual depictions of sexually explicit conduct: First, produced 
using children engaging in sexually explicit conduct; Second, computer 
generated depictions which are, or appear to be, of minors engaging in 
sexually explicit conduct; or Third, materials advertised, described, 
or otherwise presented as a visual depiction of a minor engaging in 
sexually explicit conduct.
  The act establishes a new section in U.S. Code Title 18, Sec. 2252A, 
prohibiting the distribution, possession, receipt, reproduction, sale, 
or transportation of child pornography. The act contains congressional 
findings as to the harmful effects of child pornography and the threat 
to the physical and mental health, safety, and well-being of children 
and society posed by child pornography, both computer generated 
depictions and depictions produced using actual children. The act also 
increases the penalties for child sexual exploitation and child 
pornography offenses.
  At the Judiciary Committee markup of S. 1237, Senator Biden expressed 
concern that the bill, as introduced, may not be upheld by the courts. 
Specifically, Senator Biden was concerned as to the constitutionality 
of the provision in the bill's definition section that classifies as 
child pornography a visual depiction which appears to be of a minor 
engaging in sexually explicit conduct, even if no actual child was 
involved in its production.

  In New York v. Ferber, 458 U.S. 747 (1982), the Supreme Court, while 
upholding prohibitions on child pornography, not otherwise obscene, 
where the pornography included actual minors, noted that ``distribution 
of descriptions or other depictions of sexual conduct, not otherwise 
obscene, which do not involve live performance or photographic or other 
visual reproduction of live performances, retains First Amendment 
protection.''
  Senator Biden, and some others, worried that, to the extent the bill 
reached both child pornography that is within Ferber's four corners, 
i.e., material produced utilizing actual minors, and visual depictions 
of those who merely appear to be minors--through the use of computer 
``morphing,'' for example--it could be struck down. In light of this

[[Page S11841]]

concern, Senator Biden wanted to include in the bill a separate section 
expressly covering pornography involving identifiable minors, so that 
if the broader appears to be provision is struck down, coverage of 
identifiable minor child pornography will survive.
  I am confident that the Child Pornography Prevention Act's 
prohibition on computer-generated visual depictions which appear to be 
of a child engaging in sexually explicit conduct would be found 
constitutional, a view shared by the Department of Justice and other 
legal experts in this field, and the definition of child pornography 
contained in this legislation would be upheld by the courts in its 
entirety.
  I believe the Supreme Court, in light of technological advances since 
the Ferber decision and the record Congress has established with 
respect to the harmful effects of computer-generated material which 
appears to be of a child engaging in sexually explicit conduct, 
including the use of such material to seduce children for sexual abuse 
and exploitation, will find it constitutional.
  At the same time, I agree that it would be reasonable to include in 
the act a fall-back provision specifically covering only identifiable 
minor material. Since this type of material involves a depiction of, 
and is therefore likely to result in harm to, a real child, i.e., the 
child being depicted, such a provision is indisputably constitutional 
under Ferber and would provide an enforceable weapon against at least 
some computer-generated child pornography in the event that the act's 
broader prohibition on computer-generated material which appears to be 
of a child engaging in sexually explicit conduct is overturned by the 
courts.
  Despite concerns about the method proposed by Senator Biden to 
address the problem of identifiable minor pornographic material, I 
agreed at the markup to accept his amendment, with the understanding 
that we would work together to improve the way we are achieving his 
objective.

  Senator Biden's amendment added to S. 1237 another new statutory 
section, as 18 U.S.C. Sec. 2252B, which is directed at one particular 
type of computer-created or generated images--visual depictions which 
have been created, adapted or modified to make it appear that an 
identifiable minor was engaged in sexually explicit conduct. The term 
identifiable minor was defined to mean a minor who is capable of being 
recognized as an actual person by, for example, his face or other 
distinguishing feature or physical characteristic, although a 
prosecutor would not be required to prove the minor's actual identity.
  Section 2252B duplicated, with respect to identifiable minor 
material, the prohibitions and penalties established under Sec. 2252A 
for the distribution, possession, receipt, sale or transportation of 
material which would be classified as child pornography under this 
bill. The bill, as modified in the Judiciary Committee, however, did 
not expressly include identifiable minor material in the statutory 
definition of ``child pornography,'' although such material could be 
classified as child pornography under the definition's ``appears to 
be'' language.
  I agreed with the goal of Senator Biden's amendment. Visual 
depictions of a minor engaging in sexually explicit conduct can haunt 
that person for his or her entire life. In addition, there is the 
threat that a child molester or pedophile could take pictures of a 
child he finds sexually desirable and then produce pornographic 
depictions featuring that child engaging in sexual conduct--depictions 
which he can use to stimulate his own sexual appetites, sell or 
distribute to others, or use in an effort to seduce that child or 
others into submitting to sexual exploitation.
  The threat posed by, and the harm resulting from, visual depictions 
of identifiable minors which have been created or altered so as to make 
it appear that the minor is engaging in sexually explicit conduct is 
sufficiently distinct and serious to warrant inclusion in the act of 
language specifically addressing this type of material.
  My concern regarding the Biden amendment was directed solely at the 
method used to achieve the goal of prohibiting pornographic material 
which uses the image or depiction of an identifiable minor as a clearly 
separate offense. It was, in my view, unnecessarily duplicative to 
enact two virtually identical statutory sections, 2252A and 2252B, to 
deal with computer created or generated child pornography, as the 
committee-passed bill with Senator Biden's amendment did.
  Further, it was inconsistent and potentially very confusing 
specifically to address identifiable minor pornographic material in the 
context of this bill, to treat such material in the identical manner as 
material formally classified as child pornography under this bill, but 
not to include identifiable minor material in the bill's statutory 
definition of child pornography. It seemed to me that there is a far 
stronger case for the creation of one new section to deal with the new 
technology of child pornography, rather than two.

  In addition, if we included in this legislation a provision dealing 
specifically with identifiable minor material, but failed to include 
such material in the bill's definition of child pornography, this fact 
could be seized upon by child pornographers and pedophiles to make the 
legal argument that identifiable minor material cannot be considered 
child pornography within the meaning of federal law. This could have an 
adverse impact on law enforcement efforts where, for example, an 
individual's involvement with or prior conviction for child pornography 
was relevant to an investigation or prosecution, or a factor in 
sentencing.
  Following continued discussions, Senator Biden and I concluded that 
the most appropriate and effective method of dealing with identifiable 
minor material, and that most compatible with the framework for dealing 
with all forms of child pornography set out by the act, is to include 
in the proposed statutory definition of the term child pornography a 
subsection specifically covering such material. The Child Pornography 
Prevention Act contained in the omnibus bill is the Hatch/Biden 
substitute.
  Under this bill, a visual depiction would be classified as child 
pornography if such visual depiction has been created, adapted or 
modified to appear that an identifiable minor is engaging in sexually 
explicit conduct. The term identifiable minor would be defined as a 
person who was a minor at the time the visual depiction was created, 
adapted, or modified, or whose image as a minor was used in creating, 
adapting, or modifying the visual depiction, and who is recognizable as 
an actual person by the person's face, likeness, or other 
distinguishing characteristic, such as a unique birthmark or other 
recognizable feature, but such term does not require proof of the 
minor's actual identity.
  Modifying the definition of child pornography to include identifiable 
minor child pornographic material, eliminates any need to establish an 
additional section in title 18 pertaining specifically and exclusively 
to that particular type of material. Since identifiable minor material 
would be classified as child pornography, its distribution, possession, 
receipt, reproduction, sale or transportation would, like all other 
material so classified pursuant to the Act, be prohibited under the 
section 2252A created under this bill.
  The act also resolves any concern as to the severability of the 
definition's identifiable minor provision in the event the definition's 
appears to be language were to be struck down.
  S. 1237, as introduced, resolved the question of severability by the 
bill's severability clause, which explicitly states that if any 
provision of this act, which would include the legislation's definition 
of child pornography, is held to be unconstitutional, the remainder of 
the act shall not be affected. In order to set to rest any lingering 
concern, however, the Hatch/Biden substitute amended the act's 
severability clause to specifically state that if any provision of 
section of the definition of the term child pornography is held to be 
unconstitutional, any remaining provision or section of the definition 
shall not be affected.
  We know that child pornography aggravates child sexual molestation. 
We must take steps to deal with this latest technological challenge to 
our laws protecting children. I believe that the Child Pornography 
Prevention Act shows that the intent of Congress is not to stand idle 
and thereby abet this pernicious activity. I urge all senators to 
support this act.

[[Page S11842]]

  I ask unanimous consent a section-by-section analysis of the child 
pornography provision be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                Child Pornography Prevention Act of 1996


                               section 1

       This section sets forth the short title for the 
     legislation, the ``Child Pornography Prevention Act of 
     1996.''


                               section 2

       This section sets forth a statement of Congressional 
     findings with respect to child pornography and computer-
     generated depictions of, or which appear to be of, minors 
     engaging in sexually explicit conduct. Child pornography is a 
     form of sexual abuse and exploitation which can result in 
     physical or psychological harm, or both, to children. Child 
     pornography permanently records the victim's abuse, can cause 
     continuing harm to the depicted individual for years to come, 
     can be used to seduce minors into sexual activity, and is 
     used by pedophiles and child sex abusers to stimulate and 
     whet their own sexual appetites.
       New photographic and computer imaging technologies are 
     capable of producing computer-generated visual depictions of 
     children engaging in sexually explicit conduct which are 
     virtually indistinguishable to an unsuspecting viewer from 
     unretouched photographs of actual minors engaging in such 
     conduct. The effect of such child pornography on a child 
     molester or pedophile using the material to whet his sexual 
     appetites, or on a child shown such material as a means of 
     seducing the child into sexual activity, is the same whether 
     the material is photographic or computer-generated depictions 
     of child sexual activity. Computer-generated child 
     pornography results in many of the same types of harm, and 
     poses the same danger to the well-being of children, as 
     photographic child pornography, and provide a compelling 
     governmental interest for prohibiting the production, 
     distribution, possessing, sale or viewing of all forms of 
     child pornography, including computer-generated depictions 
     which are, or appear to be, of children engaging in sexually 
     explicit conduct.


                               section 3

       This section amends the definition of the term ``visual 
     depiction'' at 18 U.S.C. Sec. 2256(5) to include stored 
     computer data.
       This section further amends Title 18 of the United States 
     Code by adding a new subsection, as 18 U.S.C. Sec. 2256(8), 
     establishing a definition of the term ``child pornography,'' 
     which is defined as ``any visual depiction, including any 
     photograph, film, video, picture, drawing or computer or 
     computer-generated image or picture, which is produced by 
     electronic, mechanical or other means, of sexually explicit 
     conduct, where: (1) its production involved the use of a 
     minor engaging in sexually explicit conduct, or; (2) such 
     visual depiction is, or appears to be, of a minor engaging in 
     sexually explicit conduct; (3) such visual depiction has been 
     created, adapted or modified to appear that an ``identifiable 
     minor'' is engaging in sexually explicit conduct; or (4) it 
     is advertised, distributed, promoted or presented in such a 
     manner as to convey the impression that it is a visual 
     depiction of a minor engaging in sexually explicit conduct.''
       The term ``identifiable minor'' would be identified in 18 
     U.S.C. Sec. 2256(9) to mean a minor who is capable of being 
     recognized as an actual person by, for example, his face or 
     other distinguishing feature or physical characteristic, 
     although a prosecutor would not be required to prove the 
     minor's actual identity.


                               Section 4

       This section adds a new and distinct section to title 18 of 
     the United States Code, as 18 U.S.C. Sec. 2252A. This section 
     makes it unlawful for any person to knowingly mail, or ship, 
     or transport child pornography in interstate or foreign 
     commerce; to receive or distribute in interstate or foreign 
     commerce child pornography, or material containing child 
     pornography that has been mailed, or shipped, or transported 
     in interstate or foreign commerce; or to reproduce child 
     pornography for distribution through the mail. This section 
     further makes it unlawful in the special maritime and 
     territorial jurisdiction of the United States, or on any land 
     or building owned or controlled by the United States, or in 
     the Indian territory, to knowingly sell, or possess with 
     intent to sell, any child pornography; or to possess any 
     book, magazine, periodical, film, videotape, computer disk, 
     or any other material that contains 3 or more images of child 
     pornography.
       Section 2252A mirrors with respect to ``child pornography'' 
     (as that term is defined under Section 3 of this bill) the 
     prohibitions on the distribution, possession, receipt, 
     reproduction, sale or transportation of material produced 
     using an actual minor engaging in sexually explicit conduct 
     contained in 18 U.S.C. Sec. 2252. The penalties in 
     Sec. Sec. 2252 and 2252A would be identical. Violation of 
     paragraphs (1), (2), or (3) of Sec. 2252A(a) pertaining to 
     the distribution, reproduction, receipt, sale or 
     transportation of child pornography would be fined or 
     imprisoned for not less than 15 years, or both; a repeat 
     offender with a prior conviction under Chapter 109A or 110 of 
     Title 18, or under any state child abuse law or law relating 
     to the production, receipt or distribution of child 
     pornography would be fined and imprisoned for not less than 5 
     years nor more than 30 years. Any person who violates 
     paragraph (4) of Sec. 2252A(a) pertaining to the possession 
     of child pornography would be fined or imprisoned for not 
     more than 5 years, or both; a repeat offender with a prior 
     conviction under Chapter 109A or 110 of Title 18, or under 
     any state law relating to the possession of child pornography 
     would be fined and imprisoned for not less than 2 years nor 
     more than 10 years.
       This section also establishes an affirmative defense for 
     material depicting sexually explicit conduct where the 
     material was produced using actual persons engaging in 
     sexually explicit conduct and each such person was an adult 
     at the time the material was produced, provided the material 
     has not been pandered as child pornography.


                               Section 5

       This section amends 18 U.S.C. Sec. 2251(d) to increase the 
     penalties for sexual exploitation of children. An individual 
     who violates Sec. 2251 would be fined or imprisoned for not 
     less than 10 years nor more than 20 years, or both. A 
     repeat offender with one prior conviction under Chapter 
     109A or 110 of Title 18, or under any state law relating 
     to the sexual exploitation of children would be fined and 
     imprisoned for not less than 15 years nor more than 30 
     years; an individual with two or more prior such 
     convictions would be fined and imprisoned for not less 
     than 30 years nor more than life. If an offense under 
     Sec. 2251 resulted in the death of a person, the offender 
     would be punished by death or imprisonment for any term of 
     years or for life.


                               Section 6

       This section amends 18 U.S.C. Sec. 2252(d) to increase the 
     penalties for offenses involving material produced using a 
     minor engaging in sexually explicit conduct. As amended, 18 
     U.S.C. Sec. 2252 will provide the identical penalties as 18 
     U.S.C. Sec. 2252A for offenses relating to the distribution, 
     possession, receipt, reproduction, sale or transportation of 
     prohibited child pornographic material.


                               Section 7

       This section amends the Privacy Protection Act, 42 U.S.C. 
     Sec. 2000aa, to extend the existing exemption for searches 
     and seizures where the offense consists of the receipt, 
     possession or communication of information pertaining to the 
     national defense, classified information or restricted data, 
     to include an exemption for searches and seizures where the 
     offense involves the sexual exploitation of children, the 
     sale or buying of children, or the production, possession, 
     sale or distribution of child pornography under Title 18 of 
     the United States Code, 2251, 2251A, 2252, or 2252A.


                               Section 8

       This section, the Amber Hagerman Child Protection Act of 
     1996, amends 18 U.S.C. Sec. Sec. 2241(c) and 2243(a) to 
     provide for a mandatory sentence of life in prison for repeat 
     offenders convicted of sexual abuse of a minor or aggravated 
     sexual abuse of a minor.


                               Section 9

       This section includes in the bill a severability clause 
     providing that in the event any provision of the bill, 
     specifically including any provision or section of the 
     definition of the term child pornography, amendment made by 
     the bill, or application of the bill to any person or 
     circumstance is held to be unconstitutional, the remainder of 
     the bill shall not be affected.

  Mr. HATCH. Mr. President, in addition, we were able to include a 
measure I sponsored which reimburses Billy Dale and the other members 
of the White House Travel Office for the legal expenses they incurred 
in defending themselves against the Clinton administration's 
politically generated investigation into the office. I am pleased that 
the Congress will soon pass this measure.
  I want to commend Senator Gregg of New Hampshire for his efforts in 
securing $1.4 billion in funding for our Federal antiterrorism effort. 
As well, this bill enhances the Federal commitment to combat illegal 
drugs by providing a significant increase in our drug control budget. I 
have to say that Senator Gregg has played a significant and pivotal war 
in the antiterrorism fights of this past Congress. He has done a 
terrific job and he deserves a lot of credit for the strides we have 
been able to make. I want to pay public acknowledgment to him for the 
good work he has done.
  With regard to the significant increase in our drug control budget, 
for example, the bill provides $140 million in funding for five new 
high intensity trafficking area task forces, one of which the Judiciary 
Committee expects will serve several Rocky Mountain States.
  An additional $197 million for the Drug Enforcement Administration, 
$46 million more than the President's request, has been provided as 
well as a significant increase in funding for the Office of National 
Drug Control Policy, the drug czar's office.
  Further, the omnibus bill also contains legislation which I 
introduced to allow the Office of Independent Counsel to obtain an 
additional 6-month extension for travel expenses. Ken Starr needs this 
time extension, and I am

[[Page S11843]]

pleased the leadership saw fit to include this measure.
  As well, the bill contains $11.4 million in funding for the first 
phase of construction of a long-needed annex for the Federal courthouse 
in Salt Lake City. This has been a priority of the judicial branch for 
some time and it is a highly warranted expenditure.
  Moreover, I urged the negotiators to include a provision which 
clarifies the effective date of an important change to the rules of 
evidence which allows evidence of prior conduct to be admitted into 
evidence in Federal sex offense cases. This was a much needed 
clarification which Senator Kyl and Congresswoman Molinari urged be 
adopted. I am very pleased it was included.
  Finally, I express my opposition to the medical patents provision 
which was included in this bill. This measure was added notwithstanding 
the fact that there were no Senate hearings, and over the objections of 
myself, the chairman of the Finance Committee and the U.S. Trade 
Representative. It is an unprecedented change to our patent code and it 
is my intention to closely scrutinize the implementation of this new 
law.
  Mr. President, before I close, I wanted also to make a few comments 
about a provision tucked inside this omnibus legislation which is of 
great concern to me. The provision would functionally eliminate the 
patenting of medical procedures.
  I know that the authors of this provision are doing what they think 
is in the best interest of our citizens.
  Nevertheless, I take exception to their amendment on medical process 
patents. I think this amendment is bad patent policy and questionable 
trade law.
  A patent that is not enforceable is like no patent at all. That is 
simply what this issue boils down to.
  And further, to exempt large multi-million-dollar organizations such 
as HMOs from the reach of patent code enforcement, flies in the face of 
the American tradition of encouraging individual initiative.
  My final concern, a very serious concern, is about the Uruguay Round 
Agreements Act [URAA], the General Agreement on Tariffs and Trade 
[GATT] implementing legislation. Substantial questions have been raised 
about whether this provision is consistent with the Agreement on Trade-
Related Intellectual Property [TRIPs]. In fact, it now appears that the 
amendment may not be consistent with TRIPs, a grave matter of 
international import.
  I also have concerns about the process implications of inserting this 
language in the appropriations bill. As chairman of the Judiciary 
Committee, I try to take special care of all of the statutes under the 
Committee's primary jurisdiction such as the patent code.
  As a member of the Finance Committee, I am also charged with the 
responsibility of upholding the laws that affect our Nation's 
international trade.
  In this regard, after serious study of this issue, on September 27, 
Chairman Roth and I wrote to our colleagues, Senators Lott, Daschle, 
Hatfield and Byrd, and indicated our concern about inserting this 
provision in the final legislation due to its unstudied impact.
  Mr. President, I ask unanimous consent that a copy of that letter be 
printed in the Record at this point.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                  U.S. Senate,

                               Washington, DC, September 27, 1996.
     Hon. Trent Lott,
     Majority Leader,
     U.S. Senate, Washington, DC.
       Dear Mr. Leader: As Chairmen of the Senate Finance and 
     Judiciary Committees, we strongly oppose inclusion of 
     proposed section 616 in the omnibus appropriations bill. 
     Inclusion of the provision, which concerns medical procedure 
     patents, is inappropriate for several reasons.
       Section 616 implicates U.S. obligations under an 
     international trade agreement, specifically the Agreement on 
     Trade-Related Aspects of Intellectual Property Rights (TRIPs) 
     administered by the World Trade Organization (WTO). As a 
     result, this aspect of section 616 falls under the Senate 
     Committee on Finance's jurisdiction on international trade 
     agreements.
       Moreover, the provision raises serious questions regarding 
     U.S. compliance with its obligations under TRIPs. It could 
     also establish a precedent which other countries might invoke 
     to deny or weaken patent protection afforded to U.S. industry 
     under the TRIPs. The Committee on Finance has not had an 
     opportunity to hold a hearing on this matter to consider 
     these broader ramifications for U.S. trade policy.
       Section 616 is very controversial and constitutes a 
     significant departure from principles of American patent law 
     that have been on the books for over two hundred years. The 
     amendment would preclude a certain class of patent-holders 
     from enforcing their patent rights against infringement, a 
     change that renders these patents virtually meaningless. That 
     there is no consensus on this significant change in U.S. 
     patent law is underscored by the fact that the Clinton 
     Administration, the American Intellectual Property Law 
     Association, the Intellectual Property Owners, and the 
     Intellectual Property Law Section of the American Bar 
     Association are on record as opposing the provisions 
     contained in section 616.
       As noted, section 616 has not been properly vetted through 
     the Committees of jurisdiction. This is exactly the type of 
     complex, technical provision that should not be hastily 
     included in end-of-the-session omnibus legislation. As two 
     Committee Chairmen with jurisdiction over this provision, we 
     urge that you not include this provision in the bill.
           Sincerely,
     Orrin G. Hatch,
       Chairman, Committee on the Judiciary.
     William V. Roth, Jr.,
       Chairman, Committee on Finance.

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

         Office of the U.S. Trade Representative, Executive Office 
           of the President,
                               Washington, DC, September 27, 1996.
     Hon. Orrin G. Hatch,
     U.S. Senate, Senate Judiciary Committee,
     Washington, DC.
       Dear Chairman Hatch: You have requested the Office of the 
     U.S. Trade Representative's views on whether the proposed 
     limitation on patient infringements relating to a medical 
     practitioners performance of a medical activity are 
     consistent with U.S. obligations under the Agreement on 
     Trade-Related Aspects of Intellectual Property Rights (TRIPs 
     Agreement). As I understand the proposal, it would generally 
     deny the remedies available under title 35 for infringement 
     of patents on diagnostic, therapeutic and surgical 
     techniques.
       USTR has serious concerns about the consistency of this 
     provision with the TRIPs Agreement. Moreover, we believe that 
     the proposal sets a damaging precedent that other TRIPs 
     Members might apply to other technologies.
       Although TRIPs Article 27:3 permits Members to exclude 
     diagnostic, therapeutic and surgical techniques from 
     patentability, we believe that if a member makes patents 
     available for this field of technology, a Member must accord 
     the full rights required under the TRIPs Agreement. Article 
     27:1 requires that patent rights be enjoyable without 
     discrimination as to the field of technology. Those rights 
     are specified in Article 28 and include the right to prevent 
     third parties from the act of using a patented process. 
     Moreover, TRIPs Articles 44 and 45 specify remedies, 
     including injunctions and damages; that must be made 
     available to address patent infringement.
       While TRIPs Article 30 permits Members to provide limited 
     exceptions to the exclusive rights conferred by a patent, 
     such exceptions must not unreasonably conflict with the 
     normal exploitation of the patent and must not unreasonably 
     prejudice the legitimate interests of the patent holder. 
     Precluding the grant of damages and injunctive relief for 
     patent infringement under the circumstances set forth in the 
     proposed legislation, goes far beyond other exceptions 
     provided in title 35 and raises questions about

[[Page S11844]]

     whether the exception is covered by Article 30.
       We are particularly concerned because other TRIPs Members 
     might follow this example and apply this type of exception to 
     other technologies. We could be seen as endorsing this type 
     of action.
       Please contact me or my staff if we can provide further 
     information or assistance.
           Sincerely,
                                                 Jennifer Hillman,
                                                  General Counsel.

  Mr. HATCH. Now that this amendment will become law, I hope that those 
who interpret the bill as being consistent with TRIP's are correct. For 
if they are not, we will have unwittingly shown the way for our trading 
partners to absolve themselves of their responsibilities under TRIP's.
  The stakes are high. Virtually every trade expert believes that 
worldwide adherence to TRIP means jobs for American workers, and 
lowered costs for American consumers as piracy of products is reduced 
and others pay their fair share of research and development costs.
  Let me take a few moments to explain my concern about the impact that 
this provision will have on the patent code.
  Section 101 of the patent code has been essentially unchanged since 
1793. Section 101 broadly states: ``Whoever invents or discovers any 
new and useful process, machine, manufacture, or composition of matter, 
or any new and useful improvement thereof, may obtain a patent * * *''
  One leading Supreme Court case, Diamond versus Diehr, decided in 
1981, quoted approvingly from the Judiciary Committee bill report on 
the 1952 recodification of the patent code, and emphasized that 
patentable subject matter under section 101 ``includes everything under 
the sun invented by man'' and noted that process patents have been 
available since 1793.
  Judge Giles Rich of the Federal Circuit is one of America's greatest 
all-time experts in patent law. Circuit Judge Rich drafted the 1952 
recodification in which the word ``process'' was substituted for 
``art''--the first and only change in section 101 since 1793.
  Incidentally, I am told that Thomas Jefferson apparently helped draft 
this statute and in his capacity of Secretary of State had a 
ministerial role in actually issuing some of our Nation's first letters 
patent.
  In a leading decision in the area of biotechnology, In 
Re Chackrabarty, written in 1979 by Judge Rich--then of the predecessor 
Court of Customs and Patent Appeals --and affirmed by the Supreme Court 
in 1981, Judge Rich noted that a broad interpretation of what is 
patentable under section 101 has served our Nation well through out 
history:

       The present recital of categories in section 101. . . has 
     been the same ever since the Patent Act of 1793, except for 
     substituting ``process'' for ``art'' and defining it . . . to 
     include art. For nearly 200 years since, those words have 
     been liberally construed to include the most diverse range 
     imaginable of unforseen developments in technology. The list 
     is endless and beyond recitation. We merely suggest that the 
     Founding Fathers and the Congresses of the past century could 
     not have foreseen the technologies that have allowed man to 
     walk on the moon, switch travel from railroads to heavier- 
     than-air craft, fill the houses with color TV, cure normally 
     fatal diseases with antibiotics produced by cultures of molds 
     . . . and give to schoolchildren at small cost pocket 
     calculators with which they can produce square roots on an . 
     . . integrated circuit so small the circuits are not visible 
     to the naked eye . . . We believe section 101 and its 
     predecessor statutes were broadly drawn in general terms to 
     broadly encompass unforeseeable future developments.

  In contrast to this soaring rendition of why a policy of broad 
patentability is beneficial to society, comes now this cleverly drafted 
and hastily adopted medical procedure patent amendment.
  Although the amendment goes through the back door of the enforcement 
provisions of section 287, when all is said and done the practical 
effect is to preclude an important class of endeavor--medical 
procedures--from protection under section 101.
  Somehow I cannot help but think that Thomas Jefferson and Judge Rich 
and many others will be disappointed in this shrinking of the patent 
code.
  Putting aside my major concerns about the trade ramifications, in 
terms of pure patent law, I think there should be a very heavy burden 
on those advocating change of a law that appears to be working well and 
has worked well for a long time.
  In my view, this burden has not been met.
  What is broken? Can anyone show me an actual example of health care 
negatively affected due to the existence of a procedure patent?
  How can we be sure that research on tomorrow's medical procedures 
will continue apace absent patent protection?
  Frankly, I find it odd that in the case that precipitated this 
alleged ``crisis'' that compels adoption of this particular amendment 
before there has been even one hearing--the Pallin ``stitch-less'' 
cataract surgery process, the patent was not upheld by the courts.
  Some argue that such process patents will drive up health care costs. 
But in the Pallin case the requested $4 per operation fee was much less 
than the $17 per stitch charge, so money was saved.
  Where is the crisis that justifies inviting considerable mischief by 
our trading partners in dragging their feet in implementing TRIP's?
  If we have unwittingly misinterpreted TRIP's, we will all be asking 
down the road, where was the Finance Committee and the Ways and Means 
Committee when this happened?
  Before we set this precedent by adopting the curious rule that you-
can-have-a-patent-but-you-just-cannot-en- 
force-it, would it not have been better for the Judiciary Committee and 
full Senate to study and carefully debate the merits of this proposal?
  While this rule may be good in the short run for physician 
organizations, the health care products industry and large 
organizations like HMO's and hospitals, can we say for certain that 
categorically taking away the incentives to patent medical procedures 
is in the interests of the American public?
  One allegation that has been stressed repeatedly by the authors of 
this amendment is that ``pure'' process patents cost very little to 
develop, and thus, patent protections for such processes should not 
lead to substantial royalties. What this somewhat simplistic argument 
fails to consider are cases in which there has been substantial R&D for 
a process, at a cost to the inventor. For now, under the language we 
will approve today, any incentive for inventors to patent those 
discoveries will be removed, and very possibly, the incentive for 
research and development as well. Medical research, and medical 
progress, can only suffer.
  Over the course of the last few days, when it became clear that the 
negotiators for the omnibus bill might include this medical process 
patent provision in the final compromise, I sent three dear colleague 
letters in opposition to the provision. I regret that my colleagues 
were either unaware, or unpersuaded by, my arguments.
  Mr. President, I ask unanimous consent that those letters be printed 
in the Record at this point.
  There being no objection, the letters were ordered to be printed in 
the Record; as follows:
                                               September 26, 1996.
       Dear Colleague: H.L. Mencken once said, ``There is always 
     an easy solution to every human problem--neat, plausible, and 
     wrong.'' I am afraid that this is the case with the Ganske/
     Frist amendment on medical procedure patents.
       As Chairman of the Committee with substantive jurisdiction 
     over the patent code, I urge your opposition to inclusion in 
     the omnibus appropriations bill of the Ganske/Frist 
     amendment, a provision that would effectively preclude the 
     enforcement of medical process patents. With all due respect 
     to my colleagues Congressman Ganske and Senator Frist, this 
     language, either as passed by the House or in a more recent 
     form, raises significant procedural and substantive 
     questions, and should not be adopted without a full review by 
     this body.


                          PROCEDURAL CONCERNS

       Authorizing Language on Appropriations Bill: The Ganske/
     Frist amendment circumvents the normal Committee process by 
     misusing the appropriations mechanism to amend a highly 
     technical and very complex area of substantive patent law. 
     This is precisely the type of non-germane amendment that 
     Senators Hatfield and Byrd and others have admonished the 
     Senate not to incorporate within this type of omnibus 
     appropriations vehicle.
       Not Reviewed by Judiciary Committee: The language of the 
     latest Ganske/Frist compromise has never been the subject of 
     a hearing or mark-up by any Committee of Congress. The Senate 
     Judiciary Committee and the full Senate should have the 
     opportunity to carefully consider and meaningfully debate 
     this issue before final action is taken on this provision.
       The original Ganske proposal, which would have excluded 
     surgical and medical procedures from patentability, was the 
     subject of

[[Page S11845]]

     a 1995 hearing of the House Judiciary Committee, Subcommittee 
     on Courts and Intellectual Property. The bill, H.R. 1127, was 
     opposed by the Biotechnology industry Organization, the 
     Section of Intellectual Property Law of the American Bar 
     Association, and the American Intellectual Property Law 
     Association.
       An amendment to bar the Patent and Trademark Office from 
     spending its funds to issue such patents was adopted on the 
     Commerce-State-Justice appropriations bill in the House on 
     July 24, 1996. Joining those opposed to this amendment were 
     the Intellectual Property Owners, the Pharmaceutical Research 
     and Manufacturers of America, and Chairman Moorhead and 
     Ranking Member Schroeder of the Subcommittee that conducted 
     the earlier hearing.

                          ____________________