[Congressional Record Volume 144, Number 126 (Monday, September 21, 1998)]
[Senate]
[Pages S10657-S10667]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENT ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. BREAUX (for himself, Mr. Mack, and Mr. Faircloth):
S. 2502. A bill to amend title 17, United States Code, to provide for
protection of certain original designs; to the Committee on the
Judiciary.
The Vessel Hull Design Protection Act of 1998
Mr. BREAUX. Mr. President, today I introduce a bill
cosponsored by Senators Mack and Faircloth entitled the Vessel Hull
Design Protection Act of 1998. This bill will attempt to stop a very
troubling problem facing America's marine manufacturers--the
unauthorized copying of boat hull designs. Such piracy threatens the
integrity of the United States marine manufacturing industry and the
safety of American boaters.
A boat manufacturer invests significant resources in creating a safe,
structurally sound, high performance boat hull design from which a line
of vessels can be manufactured. Standard practice calls for
manufacturing engineers to create a hull model, or ``plug'', from which
they cast a ``mold''. This mold is then used for mass production of
boat hulls. Unfortunately, those intent on pirating such a design can
simply use a finished boat hull to develop their own mold. This copied
mold can then be used to manufacture boat hulls identical in appearance
to the original line, and at a cost well below that incurred by the
original designer.
This so-called ``hull splashing'' is a significant problem for
consumers, manufacturers, and boat design firms. American consumers are
defrauded in the sense that they do not benefit from the many aspects
of the original hull design that contribute to its structural integrity
and safety, and they are not aware that the boat they have purchased
has been copied from an existing design. Moreover, if original
manufacturers are undersold by these copies, they may no longer be
willing to invest in new, innovative boat designs--boat designs that
could provide safer, less expensive, quality watercraft for consumers.
In the past, a number of States have enacted anti-boat-hull-copying,
or ``plug mold'', statutes to address the problem of hull splashing.
These States include my State of Louisiana, as well as Alabama,
California, Florida, Indiana, Kansas, Maryland, Mississippi, Missouri,
Tennessee, and Wisconsin. However, a decision by the U.S. Supreme Court
in Bonito Boats v. Thundercraft Boats, Inc., 489 U.S. 141 (1989),
invalidated these State statutes on the basis that they infringed on
the federal government's exclusive jurisdiction over the protection of
intellectual property. In essence, the Supreme Court held that vessel
hull design protection may be a legitimate goal, but it is Congress'
job to provide it, not the States. The legislation we are introducing
today is designed to do that job.
Such initiatives as this one are not new to Congress. In 1984,
Congress acted to protect the unique nature of design work when it
passed the Semiconductor Chip Protection Act. This act was designed to
protect the mask works of semiconductor chips, which are essentially
the molds from which
[[Page S10658]]
the chips are made, against unauthorized duplication. I believe that
the approach Congress took in that legislation should also be applied
to protect boat hull designs. The Boat Protection Act of 1998 would
work in concert with current federal law to protect American marine
manufacturers from harmful and unfair competition.
Mr. President, I want my colleagues to take note of the fact that an
identical bill, H.R. 2696, has already been passed in the House of
Representatives by unanimous consent. I want to urge my colleagues to
support the Vessel Hull Design Protection Act of 1998 and to join in
this effort to protect the American public and the marine manufacturing
community from the dangers and impropriety of hull splashing.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 2502
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be referred to as the ``Vessel Hull Design
Protection Act''.
SEC. 2. PROTECTION OF CERTAIN ORIGINAL DESIGNS.
Title 17, United States Code, is amended by adding at the
end the following new chapter:
``CHAPTER 12--PROTECTION OF ORIGINAL DESIGNS
``Sec.
``1201. Designs protected.
``1202. Designs not subject to protection.
``1203. Revisions, adaptations, and rearrangements.
``1204. Commencement of protection.
``1205. Term of protection.
``1206. Design notice.
``1207. Effect of omission of notice.
``1208. Exclusive rights.
``1209. Infringement.
``1210. Application for registration.
``1211. Benefit of earlier filing date in foreign country.
``1212. Oaths and acknowledgments.
``1213. Examination of application and issue or refusal of
registration.
``1214. Certification of registration.
``1215. Publication of announcements and indexes.
``1216. Fees.
``1217. Regulations.
``1218. Copies of records.
``1219. Correction of errors in certificates.
``1220. Ownership and transfer.
``1221. Remedy for infringement.
``1222. Injunctions.
``1223. Recovery for infringement.
``1224. Power of court over registration.
``1225. Liability for action on registration fraudulently obtained.
``1226. Penalty for false marking.
``1227. Penalty for false representation.
``1228. Enforcement by Treasury and Postal Service .
``1229. Relation to design patent law.
``1230. Common law and other rights unaffected.
``1231. Administrator; Office of the Administrator.
``1232. No retroactive effect.
``Sec. 1201. Designs protected
``(a) Designs Protected.--
``(1) In general.--The designer or other owner of an
original design of a useful article which makes the article
attractive or distinctive in appearance to the purchasing or
using public may secure the protection provided by this
chapter upon complying with and subject to this chapter.
``(2) Vessel hulls.--The design of a vessel hull, including
a plug or mold, is subject to protection under this chapter,
notwithstanding section 1202(4).
``(b) Definitions.--For the purpose of this chapter, the
following terms have the following meanings:
``(1) A design is `original' if it is the result of the
designer's creative endeavor that provides a distinguishable
variation over prior work pertaining to similar articles
which is more than merely trivial and has not been copied
from another source.
``(2) A `useful article' is a vessel hull, including a plug
or mold, which in normal use has an intrinsic utilitarian
function that is not merely to portray the appearance of the
article or to convey information. An article which normally
is part of a useful article shall be deemed to be a useful
article.
``(3) A `vessel' is a craft, especially one larger than a
rowboat, designed to navigate on water, but does not include
any such craft that exceeds 200 feet in length.
``(4) A `hull' is the frame or body of a vessel, including
the deck of a vessel, exclusive of masts, sails, yards, and
rigging.
``(5) A `plug' means a device or model used to make a mold
for the purpose of exact duplication, regardless of whether
the device or model has an intrinsic utilitarian function
that is not only to portray the appearance of the product
or to convey information.
``(6) A `mold' means a matrix or form in which a substance
for material is used, regardless of whether the matrix or
form has an intrinsic utilitarian function that is not only
to portray the appearance of the product or to convey
information.
``Sec. 1202. Designs not subject to protection
``Protection under this chapter shall not be available for
a design that is--
``(1) not original;
``(2) staple or commonplace, such as a standard geometric
figure, a familiar symbol, an emblem, or a motif, or another
shape, pattern, or configuration which has become standard,
common, prevalent, or ordinary;
``(3) different from a design excluded by paragraph (2)
only in insignificant details or in elements which are
variants commonly used in the relevant trades;
``(4) dictated solely by a utilitarian function of the
article that embodies it; or
``(5) embodied in a useful article that was made public by
the designer or owner in the United States or a foreign
country more than 1 year before the date of the application
for registration under this chapter.
``Sec. 1203. Revisions, adaptations, and rearrangements
``Protection for a design under this chapter shall be
available notwithstanding the employment in the design of
subject matter excluded from protection under section 1202 if
the design is a substantial revision, adaptation, or
rearrangement of such subject matter. Such protection shall
be independent of any subsisting protection in subject matter
employed in the design, and shall not be construed as
securing any right to subject matter excluded from protection
under this chapter or as extending any subsisting protection
under this chapter.
``Sec. 1204. Commencement of protection
``The protection provided for a design under this chapter
shall commence upon the earlier of the date of publication of
the registration under section 1213(a) or the date the design
is first made public as defined by section 1210(b).
``Sec. 1205. Term of protection
``(a) In General.--Subject to subsection (b), the
protection provided under this chapter for a design shall
continue for a term of 10 years beginning on the date of the
commencement of protection under section 1204.
``(b) Expiration.--All terms of protection provided in this
section shall run to the end of the calendar year in which
they would otherwise expire.
``(c) Termination of Rights.--Upon expiration or
termination of protection in a particular design under this
chapter, all rights under this chapter in the design shall
terminate, regardless of the number of different articles in
which the design may have been used during the term of its
protection.
``Sec. 1206. Design notice
``(a) Contents of Design Notice.--Whenever any design for
which protection is sought under this chapter is made public
under section 1210(b), the owner of the design shall, subject
to the provisions of section 1207, make it or have it marked
legibly with a design notice consisting of--
``(A) the words `Protected Design', the abbreviation
`Prot'd Des.', or the letter `D' with a circle, or the symbol
*D*;
``(B) the year of the date on which protection for the
design commenced; and
``(C) the name of the owner, an abbreviation by which the
name can be recognized, or a generally accepted alternative
designation of the owner.
Any distinctive identification of the owner may be used for
purposes of subparagraph (C) if it has been recorded by the
Administrator before the design marked with such
identification is registered.
``(2) After registration, the registration number may be
used instead of the elements specified in subparagraphs (B)
and (C) of paragraph (1).
``(b) Location of Notice.--The design notice shall be so
located and applied as to give reasonable notice of design
protection while the useful article embodying the design is
passing through its normal channels of commerce.
``(c) Subsequent Removal of Notice.--When the owner of a
design has complied with the provisions of this section,
protection under this chapter shall not be affected by the
removal, destruction, or obliteration by others of the design
notice on an article.
``Sec. 1207. Effect of omission of notice
``(a) Action With Notice.--Except as provided in subsection
(b), the omission of the notice prescribed in section 1206
shall not cause loss of the protection under this chapter or
prevent recovery for infringement under this chapter against
any person who, after receiving written notice of the design
protection, begins an undertaking leading to infringement
under this chapter.
``(b) Actions Without Notice.--The omission of the notice
prescribed in section 1206 shall prevent any recovery under
section 1224 against a person who began an undertaking
leading to infringement under this chapter before receiving
written notice of the design protection. No injunction shall
be issued under this chapter with respect to such undertaking
unless the owner of the design reimburses that person for any
reasonable expenditure or contractual obligation in
connection with such undertaking that was incurred before
receiving written notice of the design protection, as the
court in its discretion directs. The burden of providing
written notice of design protection shall be on the owner of
the design.
``Sec. 1208. Exclusive rights
``The owner of a design protected under this chapter has
the exclusive right to--
``(1) make, have made, or import, for sale or for use in
trade, any useful article embodying that design; and
[[Page S10659]]
``2 sell or distribute for sale or for use in trade any
useful article embodying that design.
``Sec. 1209. Infringement
``(a) Acts of Infringement.--Except as provided in
subsection (b), it shall be infringement of the exclusive
rights in a design protected under this chapter for any
person, without the consent of the owner of the design,
within the United States and during the term of such
protection, to--
``(1) make, have made, or import, for sale or for use in
trade, any infringing article as defined in subsection (e);
or
``(2) sell or distribute for sale or for use in trade any
such infringing article.
``(b) Acts of Sellers and Distributors.--A seller or
distributor of an infringing article who did not make or
import the article shall be deemed to have infringed on a
design protected under his chapter only if that person--
``(1) induced or acted in collusion with a manufacturer to
make, or an importer to import such article, except that
merely purchasing or giving an order to purchase such article
in the ordinary course of business shall not of itself
constitute such inducement or collusion; or
``(2) refused or failed, upon the request of the owner of
the design, to make a prompt and full disclosure of that
person's source of such article, and that person orders or
reorders such article after receiving notice by registered or
certified mail of the protection subsisting in the design.
``(c) Acts Without Knowledge.--It shall not be infringement
under this section to make, have made, import, sell, or
distribute, any article embodying a design which was created
without knowledge that a design was protected under this
chapter and was copied from such protected design.
``(d) Acts in Ordinary Course of Business.--A person who
incorporates into that person's product of manufacture an
infringing article acquired from others in the ordinary
course of business, or who, without knowledge of the
protected design embodied in an infringing article, makes or
processes the infringing article for the account of another
person in the ordinary course of business, shall not be
deemed to have infringed the rights in that design under this
chapter except under a condition contained in paragraph (1)
or (2) of subsection (b). Accepting an order or reorder from
the source of the infringing article shall be deemed ordering
or reordering within the meaning of subsection (b)(2).
``(e) Infringing Article Defined.--As used in this section,
an `infringing article' is any article the design of which
has been copied from a design protected under this chapter,
without the consent of the owner of the protected design. An
infringing article is not an illustration or picture of a
protected design in an advertisement, book, periodical,
newspaper, photograph, broadcast, motion picture, or similar
medium. A design shall not be deemed to have been copied from
a protected design if it is original and not substantially
similar in appearance to a protected design.
``(f) Establishing Originality.--The party to any action or
proceeding under this chapter who alleges rights under this
chapter in a design shall have the burden of establishing the
design's originality whenever the opposing party introduces
an earlier work which is identical to such design, or so
similar as to make prima facie showing that such design was
copied from such work.
``(g) Reproduction for Teaching or Analysis.--It is not an
infringement of the exclusive rights of a design owner for a
person to reproduce the design in a useful article or in any
other form solely for the purpose of teaching, analyzing, or
evaluating the appearance, concepts, or techniques embodied
in the design, or the function of the useful article
embodying the design.
``Sec. 1210. Application for registration
``(a) Time Limit for Application for Registration.--
Protection under this chapter shall be lost if application
for registration of the design is not made within two years
after the date on which the design is first made public.
``(b) When Design Is Made Public.--A design is made public
when an existing useful article embodying the design is
anywhere publicly exhibited, publicly distributed, or offered
for sale or sold to the public by the owner of the design or
with the owner's consent.
``(c) Application by Owner of Design.--Application for
registration may be made by the owner of the design.
``(d) Contents of Application.--The application for
registration shall be made to the Administrator and shall
state--
``(1) the name and address of the designer or designers of
the design;
``(2) the name and address of the owner if different from
the designer;
``(3) the specific name of the useful article embodying the
design;
``(4) the date, if any, that the design was first made
public, if such date was earlier than the date of the
application;
``(5) affirmation that the design has been fixed in a
useful article; and
``(6) such other information as may be required by the
Administrator.
The application for registration may include a description
setting forth the salient features of the design, but the
absence of such a description shall not prevent registration
under this chapter.
``(e) Sworn Statement.--The application for registration
shall be accompanied by a statement under oath by the
applicant or the applicant's duly authorized agent or
representative, setting forth, to the best of the applicant's
knowledge and belief--
``(1) that the design is original and was created by the
designer or designers named in the application;
``(2) that the design has not previously been registered on
behalf of the applicant or the applicant's predecessor in
title; and
``(3) that the applicant is the person entitled to
protection and to registration under this chapter.
If the design has been made public with the design notice
prescribed in section 1206, the statement shall also describe
the exact form and position of the design notice.
``(f) Effect of Errors.--(1) Error in any statement or
assertion as to the utility of the useful article named in
the application under this section, the design of which is
sought to be registered, shall not affect the protection
secured under this chapter.
``(2) Errors in omitting a joint designer or in naming an
alleged joint designer shall not affect the validity of the
registration, or the actual ownership or the protection of
the design, unless it is shown that the error occurred with
deceptive intent.
``(g) Design Made in Scope of Employment.--In a case in
which the design was made within the regular scope of the
designer's employment and individual authorship of the design
is difficult or impossible to ascribe and the application so
states, the name and address of the employer for whom the
design was made may be stated instead of that of the
individual designer.
``(h) Pictorial Representation of Design.--The application
for registration shall be accompanied by two copies of a
drawing or other pictorial representation of the useful
article embodying the design, having one or more views,
adequate to show the design, in a form and style suitable for
reproduction, which shall be deemed a part of the
application.
``(i) Design in More Than One Useful Article.--If the
distinguishing elements of a design are in substantially the
same form in different useful articles, the design shall be
protected as to all such useful articles when protected as to
one of them, but not more than one registration shall be
required for the design.
``(j) Application for More Than One Design.--More than one
design may be included in the same application under such
conditions as may be prescribed by the Administrator. For
each design included in an application the fee prescribed for
a single design shall be paid.
``Sec. 1211. Benefit of earlier filing date in foreign
country
``An application for registration of a design filed in the
United States by any person who has, or whose legal
representative or predecessor or successor in title has,
previously filed an application for registration of the same
design in a foreign country which extends to designs of
owners who are citizens of the United States, or to
applications filed under this chapter, similar protection to
that provided under this chapter shall have that same effect
as if filed in the United States on the date on which the
application was first filed in such foreign country, if the
application in the United States is filed within 6 months
after the earliest date on which any such foreign application
was filed.
``Sec. 1212. Oaths and acknowledgments
``(a) In General.--Oaths and acknowledgments required by
this chapter--
``(1) may be made--
``(A) before any person in the United States authorized by
law to administer oaths; or
``(B) when made in a foreign country, before any diplomatic
or consular officer of the United States authorized to
administer oaths, or before any official authorized to
administer oaths in the foreign country concerned, whose
authority shall be proved by a certificate of a diplomatic or
consular officer of the United States; and
``(2) shall be valid if they comply with the laws of the
State or country where made.
``(b) Written Declaration in Lieu of Oath.--(1) The
Administrator may by rule prescribe that any document which
is to be filed under this chapter in the Office of the
Administrator and which is required by any law, rule, or
other regulation to be under oath, may be subscribed to by a
written declaration in such form as the Administrator may
prescribe, and such declaration shall be in lieu of the oath
otherwise required.
``(2) Whenever a written declaration under paragraph (1) is
used, the document containing the declaration shall state
that willful false statements are punishable by fine or
imprisonment, or both, pursuant to section 1001 of title 18,
and may jeopardize the validity of the application or
document or a registration resulting therefrom.
``Sec. 1213. Examination of application and issue or refusal
of registration
``(a) Determination of Registrability of Design;
Registration.--Upon the filing of an application for
registration in proper form under section 1210, and upon
payment of the fee prescribed under section 1216, the
Administrator shall determine whether or not the application
relates to a design which on its face appears to be subject
to protection under this chapter, and, if so, the Register
shall register the design. Registration under this subsection
shall be announced by publication. The date of registration
shall be the date of publication.
[[Page S10660]]
``(b) Refusal To Register; Reconsideration.--If, in the
judgment of the Administrator, the application for
registration relates to a design which on its face is not
subject to protection under this chapter, the Administrator
shall send to the applicant a notice of refusal to register
and the grounds for the refusal. Within 3 months after the
date on which the notice of refusal is sent, the applicant
may, by written request, seek reconsideration of the
application. After consideration of such a request, the
Administrator shall either register the design or send to the
applicant a notice of final refusal to register.
``(c) Application To Cancel Registration.--Any person who
believes he or she is or will be damaged by a registration
under this chapter may, upon payment of the prescribed fee,
apply to the Administrator at any time to cancel the
registration on the ground that the design is not subject to
protection under this chapter, stating the reasons for the
request. Upon receipt of an application for cancellation, the
Administrator shall send to the owner of the design, as shown
in the records of the Office of the Administrator, a notice
of the application, and the owner shall have a period of 3
months after the date on which such notice is mailed in which
to present arguments to the Administrator for support of the
validity of the registration. The Administrator shall also
have the authority to establish, by regulation, conditions
under which the opposing parties may appear and be heard in
support of their arguments. If, after the periods provided
for the presentation of arguments have expired, the
Administrator determines that the applicant for cancellation
has established that the design is not subject to protection
under this chapter, the Administrator shall order the
registration stricken from the record. Cancellation under
this subsection shall be announced by publication, and notice
of the Administrator's final determination with respect
to any application for cancellation shall be sent to the
applicant and to the owner of record.
``Sec. 1214. Certification of registration
``Certificates of registration shall be issued in the name
of the United States under the seal of the Office of the
Administrator and shall be recorded in the official records
of the Office. The certificate shall state the name of the
useful article, the date of filing of the application, the
date of registration, and the date the design was made
public, if earlier than the date of filing of the
application, and shall contain a reproduction of the drawing
or other pictorial representation of the design. If a
description of the salient features of the design appears in
the application, the description shall also appear in the
certificate. A certificate of registration shall be admitted
in any court as prima facie evidence of the facts stated in
the certificate.
``Sec. 1215. Publication of announcements and indexes
``(a) Publications of the Administrator.--The Administrator
shall publish lists and indexes of registered designs and
cancellations of designs and may also publish the drawings or
other pictorial representations of registered designs for
sale or other distribution.
``(b) File of Representatives of Registered Designs.--The
Administrator shall establish and maintain a file of the
drawings or other pictorial representations of registered
designs. The file shall be available for use by the public
under such conditions as the Administrator may prescribe.
``Sec. 1216. Fees
``The Administrator shall by regulation set reasonable fees
for the filing of applications to register designs under this
chapter and for other services relating to the administration
of this chapter, taking into consideration the cost of
providing these services and the benefit of a public record.
``Sec. 1217. Regulations
``The Administrator may establish regulations for the
administration of this chapter.
``Sec. 1218. Copies of records
``Upon payment of the prescribed fee, any person may obtain
a certified copy of any official record of the Office of the
Administrator that relates to this chapter. That copy shall
be admissible in evidence with the same effect as the
original.
``Sec. 1219. Correction of errors in certificates
``The Administrator may, by a certificate of correction
under seal, correct any error in a registration incurred
through the fault of the Office, or, upon payment of the
required fee, any error of a clerical or typographical nature
occurring in good faith but not through the fault of the
Office. Such registration, together with the certificate,
shall thereafter have the same effect as if it has been
originally issued in such corrected form.
``Sec. 1220. Ownership and transfer
``(a) Property Right in Design.--The property right in a
design subject to protection under this chapter shall vest in
the designer, the legal representatives of a deceased
designer or of one under legal incapacity, the employer for
whom the designer created the design in the case of a design
made within the regular scope of the designer's employment,
or a person to whom the rights of the designer or of such
employer have been transferred. The person in whom the
property right is vested shall be considered the owner of the
design.
``(b) Transfer of Property Right.--The property right in a
registered design, or a design for which an application for
registration has been or may be filed, may be assigned,
granted, conveyed, or mortgaged by an instrument in writing,
signed by the owner, or may be bequeathed by will.
``(c) Oath or Acknowledgement of Transfer.--An oath or
acknowledgment under section 1212 shall be prima facie
evidence of the execution of an assignment, grant,
conveyance, or mortgage under subsection (b).
``(d) Recordation of Transfer.--An assignment, grant,
conveyance, or mortgage under subsection (b) shall be void as
against any subsequent purchaser or mortgagee for a valuable
consideration, unless it is recorded in the Office of the
Administration within 3 months after its date of execution or
before the date of such subsequent purchase or mortgage.
``Sec. 1221. Remedy for infringement
``(a) In General.--The owner of a design is entitled, after
issuance of a certificate of registration of the design under
this chapter, to institute an action for any infringement of
the design.
``(b) Review of Refusal To Register.--(1) Subject to
paragraph (2), the owner of a design may seek judicial review
of a final refusal of the Administrator to register the
design under this chapter by bringing a civil action, and may
in the same action, if the court adjudges the design subject
to protection under this chapter, enforce the rights in that
design under this chapter.
``(2) The owner of a design may seek judicial review under
this section if--
``(A) the owner has previously duly filed and prosecuted to
final refusal an application in proper form for registration
of the design;
``(B) the owner causes a copy of the compliant in the
action to be delivered to the Administrator within 10 days
after the commencement of the action; and
``(C) the defendant has committed acts in respect to the
design which would constitute infringement with respect to a
design protected under this chapter.
``(c) Administrator as Party to Action.--The Administrator
may, at the Administrator's option, become a party to the
action with respect to the issue of registrability of the
design claim by entering an appearance within 60 days after
being served with the complaint, but the failure of the
Administrator to become a party shall not deprive the court
of jurisdiction to determine that issue.
``(d) Use of Arbitration To Resolve Dispute.--The parties
to an infringement dispute under this chapter, within such
time as may be specified by the Administrator by regulation,
may determine the dispute, or any aspect of the dispute, by
arbitration. Arbitration shall be governed by title 9. The
parties shall give notice of any arbitration award to the
Administrator, and such award shall, as between the parties
to the arbitration, be dispostive of the issues to which it
relates. The arbitration award shall be unenforceable until
such notice is given. Nothing in this subsection shall
preclude the Administrator from determining whether a design
is subject to registration in a cancellation proceeding under
section 1213(c).
Sec. 1222. Injunctions
``(a) In General.--A court having jurisdiction over actions
under this chapter may grant injunctions in accordance with
the principles of equity to prevent infringement of a design
under this chapter, including, in its discretion, prompt
relief by temporary restraining orders and preliminary
injunctions.
``(b) Damages for Injunctive Relief Wrongfully Obtained.--A
seller or distributor who suffers damage by reason of
injunctive relief wrongfully obtained under this section has
a cause of action against the applicant for such injunctive
relief and may recover such relief as may be appropriate,
including damages for lost profits, cost of materials, loss
of good will, and punitive damages in instances where the
injunctive relief was sought in bad faith, and, unless the
court finds extenuating circumstances, reasonable attorney's
fees.
``Sec. 1223. Recovery for infringement
``(a) Damages.--Upon a finding for the claimant in an
action for infringement under this chapter, the court shall
award the claimant damages adequate to compensate for the
infringement. In addition, the court may increase the damages
to such amount, not exceeding $50,000 or $1 per copy,
whichever is greater, as the court determines to be just. The
damages awarded shall constitute compensation and not a
penalty. The court may receive expert testimony as an aid to
the determination of damages.
``(b) Infringer's Profits.--As an alternative to the
remedies provided in subsection (a), the court may award the
claimant the infringer's profits resulting from the sale of
the copies if the court finds that the infringer's sales are
reasonably related to the use of the claimant's design. In
such a case, the claimant shall be required to prove only the
amount of the infringer's sales and the infringer shall be
required to prove its expenses against such sales.
``(c) Statute of Limitations.--No recovery under subsection
(a) or (b) shall be had for any infringement committed more
than 3 years before the date on which the complaint is filed.
``(d) Attorney's Fees.--In an action for infringement under
this chapter, the court may award reasonable attorney's fees
to the prevailing party.
[[Page S10661]]
``(e) Disposition of Infringing and Other Articles.--The
court may order that all infringing articles, and any plates,
molds, patterns, models, or other means specifically adapted
for making the articles, be delivered up for destruction or
other disposition as the court may direct.
``Sec. 1224. Power of court over registration
``In any action involving the protection of a design under
this chapter, the court, when appropriate, may order
registration of a design under this chapter or the
cancellation of such a registration. Any such order shall be
certified by the court to the Administrator, who shall make
an appropriate entry upon the record.
``Sec. 1225. Liability for action on registration
fraudulently obtained
``Any person who brings an action for infringement knowing
that registration of the design was obtained by a false or
fraudulent representation materially affecting the rights
under this chapter, shall be liable in the sum of $ 10,000,
or such part of that amount as the court may determine. That
amount shall be to compensate the defendant and shall be
charged against the plaintiff and paid to the defendant, in
addition to such costs and attorney's fees of the defendant
as may be assessed by the court.
``Sec. 1226. Penalty for false marking
``(a) In General.--Whoever, for the purpose of deceiving
the public, marks upon, applies to, or uses in advertising in
connection with an article made, used, distributed, or sold,
a design which is not protected under this chapter, a design
notice specified in section 1206, or any other words or
symbols importing that the design is protected under this
chapter, knowing that the design is not so protected, shall
pay a civil fine of not more than $500 for each such offense.
``(b) Suit by Private Persons.--Any person may sue for the
penalty established by subsection (a), in which event one-
half of the penalty shall be awarded to the person suing and
the remainder shall be awarded to the United States.
``Sec. 1227. Penalty for false representation
``Whoever knowingly makes a false representation materially
affecting the rights obtainable under this chapter for the
purpose of obtaining registration of a design under this
chapter shall pay a penalty of not less than $500 and not
more than $1,000, and any rights or privileges that
individual may have in the design under this chapter shall be
forfeited.
``Sec. 1228. Enforcement by Treasury and Postal Service
``(a) Regulations.--The Secretary of the Treasury and the
United States Postal Service shall separately or jointly
issue regulations for the enforcement of the rights set forth
in section 1208 with respect to importation. Such regulations
may require, as a condition for the exclusion of articles
from the United States, that the person seeking exclusion
take any one or more of the following actions:
``(1) Obtain a court order enjoining, or an order of the
International Trade Commission under section 337 of the
Tariff Act of 1930 excluding, importation of the articles.
``(2) Furnish proof that the design involved is protected
under this chapter and that the importation of the articles
would infringe the rights in the design under this chapter.
``(3) Post a surety bond for any injury that may result if
the detention or exclusion of the articles proves to be
unjustified.
``(b) Seizure and Forfeiture.--Articles imported in
violation of the rights set forth in section 1208 are subject
to seizure and forfeiture in the same manner as property
imported in violation of the customs laws. Any such forfeited
articles shall be destroyed as directed by the Secretary of
the Treasury or the court, as the case may be, except that
the articles may be returned to the country of export
whenever it is shown to the satisfaction of the Secretary of
the Treasury that the importer had no reasonable grounds for
believing that his or her acts constituted a violation of the
law.
``Sec. 1229. Relation to design patent law
``The issuance of a design patent under title 35 for an
original design for an article of manufacture shall terminate
any protection of the original design under this chapter.
``Sec. 1230. Common law and other rights unaffected
``Nothing in this chapter shall annul or limit--
``(1) common law or other rights or remedies, if any,
available to or held by any person with respect to a design
which has not been registered under this chapter; or
``(2) any right under the trademark laws or any right
protected against unfair competition.
``Sec. 1231. Administrator; Office of the Administrator
``In this chapter, the `Administrator' is the Register of
Copyrights, and the `Office of the Administrator' and the
`Office' refer to the Copyright Office of the Library of
Congress.
``Sec. 1232. No retroactive effect
``Protection under this chapter shall not be available for
any design that has been made public under section 1210(b)
before the effective date of this chapter.''.
SEC. 3. CONFORMING AMENDMENTS.
(a) Table of Chapters.--The table of chapters for title 17,
United States Code, is amended by adding at the end the
following:
``12. Protection of Original Designs............................1201''.
(b) Jurisdiction of District Courts Over Design Actions.--
(1) Section 1338(c) of title 28, United States Code, is
amended by inserting ``, and to exclusive rights in designs
under chapter 12 of title 17,'' after ``title 17''.
(2)(A) The section heading for section 1338 of title 28,
United States Code, is amended by inserting ``designs,''
after ``mask works,''.
(B) The item relating to section 1338 in the table of
sections at the beginning of chapter 85 of title 28, United
States Code, is amended by inserting ``designs,'' after
``mask works,''.
(c) Place for Bringing Design Actions.--Section 1400(a) of
title 28, United States Code, is amended by inserting ``or
designs'' after ``mask works''.
(d) Actions Against the United States.--Section 1498(e) of
title 28, United States Code, is amended by inserting ``, and
to exclusive rights in designs under chapter 12 of title
17,'' after ``title 17''.
SEC. 4. EFFECTIVE DATE.
The amendments made by sections 2 and 3 shall take effect
one year after the date of the enactment of this Act.
______
By Mr. DOMENICI:
S. 2503. A bill to establish a Presidential Commission to determine
the validity of certain land claims arising out of the Treaty of
Guadalupe-Hidalgo of 1848 involving the descendants of persons who were
Mexican citizens at the time of the Treaty; to the Committee on Energy
and Natural Resources.
Guadalupe-Hidalgo Treaty Land Claims Equity Act of 1998
Mr. DOMENICI. Madam President, the bill I am introducing today is the
first step in addressing a longstanding unfairness that has blemished
the conscience of New Mexico's history. It is an injustice that dates
back to the time when Jefferson Davis, Daniel Webster, and Sam Houston
walked the Halls of the Capitol as Senators.
In 1848, the United States signed the Treaty of Guadalupe-Hidalgo
with Mexico. Under this treaty, the United States acquired the
territory that is now California, Nevada, Utah, Arizona, New Mexico,
Colorado, and Wyoming. The Treaty of Guadalupe-Hidalgo solved some
problems but created others. It failed to adequately protect the civil
and property rights of the people living in the newly annexed
territory.
This bill is a very important piece of legislation. It is the
opportunity to reverse the heritage of ill-will between the Hispanic
people and the Federal Government. Hispanic descendants have been
waiting for 150 years to get the Federal Government to fairly look into
the land grant situation.
We ratified a treaty with property rights guarantees provisions
which, in retrospect, have turned out to be inadequate. John R. Van
Ness, described the treaty as an enormous real estate deal, but the
land grant claimants were led to believe that their property rights
would be honored and protected. Some officials with the Federal
Government, on the other hand, expected to get clear title to most of
the land it was paying for regardless of the existing property rights
of the Mexicans.
The land grant applicants have endured hostile government officials.
At one point, President Cleveland appointed William Andrew Sparks, as
surveyor general for New Mexico. Sparks has been described by
historians as ``steeped in prejudice against New Mexico, its people and
their property rights.'' We had corrupt lawyers, and a confederation of
opportunists who used long legal battles to acquire empires that
extended over millions of acres--all at the expense of Hispanics.
In 1891, the Surveyor General was replaced by the Court of Private
Land Claims. The situation went from bad to worse because the court's
procedures heavily favored the Government and the result was injustice.
The New Mexico Court of Claims required that claimants prove that the
Spanish or Mexican granting official had the legal authority to issue
the land grant. Consequently, many New Mexico land grants were held to
be not legitimate. As a result, the New Mexico court rejected two-
thirds of the claims presented before it. Ultimately, by one account
written by Richard Griswold del Castillo, only 82 grants received
congressional confirmation. This represented only 6 percent of the
total area sought by land claimants. The Court of Private Land Claims
enlarged the national domain of the Federal Government at the expense
of hundreds of Hispanic villages, leaving a bitter legacy.
This bill is based on legislation recently passed by Congressman Bill
[[Page S10662]]
Redmond. This is a major piece of legislation, and I commend
Congressman Redmond. He came to Washington, and he quickly identified
one of the most important and longstanding disputes that his
constituents have had with the Federal Government and he took decisive
action. He passed a major bill to begin the process of seeing what
these claims were all about and adjudicating them, if possible.
Members retire from 20- and 30-year careers and never achieve the
passage of an important piece of legislation, and yet, Congressman
Redmond got this bill passed in the House in his first term.
Congressman Redmond's bill creates a Presidential commission to
adjudicate the community land grants located in New Mexico. It is
designed to benefit descendants of Mexican citizens who settled in Mew
Mexico before the Treaty of Guadalupe-Hidalgo. The purpose of the
legislation is to determine which community land grants could be
reconstituted from land currently held by the Federal Government--and I
repeat, from land currently held by the Federal Government. The
legislation finally implements the spirit of Treaty of Guadalupe-
Hidalgo.
I told Congressman Redmond that I would sponsor his bill in the
Senate, and today I am introducing the companion bill. I am proud to do
so.
I have made some changes and only a couple of additions in the
version of this bill that I am introducing today.
The changes are based on the lessons I have learned from talking to
the heirs of some of the land grants; and from reviewing the history;
and from talking to scholars, historians, and land grant lawyers.
I want to thank Roberto Mondragon, Max Cordova, Estevan Arellano,
Joyce Guerin, Georgia Roybal, Juan Sanchez, Pedro Gutierrez, Jr., and
Roberto Torrez for their invaluable help.
I have also asked the Indian leaders to review the legislation in
draft form. While I have not yet received their comments, I want them
to know that I view their issues to be important, and I look forward to
working with them and for them.
First, it seems to me that the Federal Government needs to take an
affirmative role in obtaining the necessary documentation needed to
prove the validity of the community land grant claims. Unfortunately,
many of the New Mexico documents were destroyed during the Pueblo
revolt. But scholars have told me that the Mexican and Spanish
governments have ever-improving archives that may indeed contain what
these New Mexicans need. This bill requires the Secretary of State to
negotiate an agreement with Mexico and Spain for access to the
documents. It seems especially appropriate that in 1998, as New Mexico
celebrates its 400th anniversary of the first Hispanic settlement, that
our Government would begin negotiating the necessary agreements for
access to these critical and historically significant documents.
In reading the histories it seemed to me that there was a lot of
ambiguity in the treaty and even more ambiguity and discretion in the
statutes establishing the Surveyor General and the Court of Private
Land Claims.
I believe history supports my view that ambiguity works to the
detriment of the land grant claimants. Therefore, I propose that before
the commission begin its work on adjudicating specific claims it first
develop clear and concise rules so that everyone will be treated
fairly. This legislation requires the Presidential commission to be
formed and then to develop a Code of Land Claims Procedure that would
be reviewed by the Energy Committee to insure that it is fair in the
Senate and its counterpart in the House.
Once the documents are available and the rules have been spelled out,
the commission would be ready to adjudicate the land claims.
Trying to do justice 150 years after the fact is complicated. This
legislation holds harmless private land owners and the Indians of New
Mexico with reference to their claims, their lands, and with reference
to access to their sacred sites. It makes sure that title companies and
lenders will be satisfied that this legislation and any petitions for
reconstituting the land grants will not adversely affect private
property. It makes sure that our State Engineer is satisfied with the
criteria used to deal with land claims without upsetting our system of
water rights. I believe we can all agree that we do not want to have
the Federal Government interfering in these various areas.
The legislation calls upon the commission in its Code of Land Claims
Procedure to have a clear set of rules for what can and cannot be done
for our Indian people.
I am hopeful that this bill can address what has for too long been a
tale of land loss and denial without creating new problems or
injustices.
Madam President, I ask unanimous consent that a copy of the bill and
a Spanish translation of my remarks appear in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
S. 2503
SECTION 1. SHORT TITLE: TABLE OF CONTENTS
(a) Short Title.--This Act may be cited as the ``Guadalupe-
Hidalgo Treaty Land Claims Equity Act of 1998.''
(b) Table of Contents.--The table of contents of this Act
is as follows:
Sec. 1. Short title: table of contents.
Sec. 2. Definitions and findings.
Sec. 3. Establishment and membership of Commission.
Sec. 4. International Document Procurement Agreement.
Sec. 5. Development of the Code of Land Grant Claims Procedure.
Sec. 6. Examination of land claims.
Sec. 7. Community Land Grant Study Center.
Sec. 8. Miscellaneous powers of Commission.
Sec. 9. Report.
Sec. 10. Termination.
Sec. 11. Authorization of appropriations.
SEC. 2. DEFINITIONS AND FINDINGS.
(a) Definitions.--For purpose of this Act:
(1) Commission.--The term ``Commission'' means the
Guadalupe-Hidalgo Treaty Land Claims Commission established
under section 3.
(2) Treaty of Guadalupe-Hidalgo.--The term ``Treaty of
Guadalupe-Hidalgo'' means the treaty of Peace, Friendship,
Limits, and Settlement (Treaty of Guadalupe Hidalgo), between
the United States and the Republic of Mexico, signed February
2, 1848 (TS 207: 9 Bevans 791).
(3) Eligible Descendant.--The term ``eligible descendant''
means a descendent of a person who--
(A) was a Mexican citizen before the Treaty of Guadalupe
Hidalgo;
(B) was a member of a community land grant; and
(C) became a United States citizen within ten years after
the effective date of the Treaty of Guadalupe-Hidalgo, May
30, 1848, pursuant to the terms of the Treaty.
(4) Community Land Grant.--The term ``community land
grant'' means a village, town, settlement, or pueblo
consisting of land held in common (accompanied by lesser
private allotments) by three or more families under a grant
from the King of Spain (or his representative) before the
effective date of the Treaty of Cordova, August 24, 1821, or
from the authorities of the Republic of Mexico before May 30,
1848, in what became the State of New Mexico, regardless of
the original character of the grant.
(5) Reconstituted.--The term ``reconstituted'', with regard
to a valid community land grant, means restoration to full
status as a municipality with rights properly belonging to a
municipality under State law and the right of local self-
government.
(b) Findings.--Congress finds the following:
(1) New Mexico has a unique history regarding the
acquisition of ownership of land as a result of the
substantial number of Spanish and Mexican land grants that
were an integral part of the colonization and growth of New
Mexico before the United States acquired the area in the
Treaty of Guadalupe-Hidalgo.
(2) Various provisions of the Treaty of Guadalupe-Hidalgo
have not yet been fully implemented in the spirit of Article
VI, Section 2, of the Constitution of the United States.
(3) Serious questions regarding the prior ownership of
lands in the State of New Mexico, particularly certain public
lands, still exist.
(4) Congressionally established land claim commissions have
been used in the past to successfully examine disputed land
possession questions.
SEC. 3. ESTABLISHMENT AND MEMBERSHIP OF COMMISSION.
(a) Establishment.--There is established a commission to be
known as the ``Guadalupe-Hidalgo Treaty Land Claims
Commission.''
(b) Number and Appointment of Members.--The Commission
shall be composed of five members appointed by the President,
by and with the advice and consent of the Senate. At least
two of the members of the Commission shall be selected from
among persons who are eligible descendants. All members shall
demonstrate knowledge and expertise about the history and law
associated with the New Mexico land grants.
(c) Terms.--Each member shall be appointed for the life of
the Commission. A vacancy in the Commission shall be filled
in the manner in which the original appointment was made.
[[Page S10663]]
(d) Compensation.--Members shall each be entitled to
receive the daily equivalent of level V of the Executive
Schedule for each day (including travel time) during which
they are engaged in the actual performance of duties vested
in the Commission.
SEC. 4.--INTERNATIONAL AGREEMENTS FOR COOPERATION IN THE
PROCUREMENT OF RELEVANT DOCUMENTS.
(a) Findings.--Congress recognizes that--
(1) the availability of documents concerning community land
grants in the State of New Mexico in the United States is
limited; and
(2) a fair and equitable evaluation of the community land
grants will depend upon obtaining a comprehensive compilation
of the relevant documents available.
(b) Bilateral Agreements.--The Secretary of State is
authorized to negotiate bilateral agreements with the
Governments of Mexico and Spain to obtain their full
cooperation with the Commission so that the Commission
will have access to certified copies of all relevant
documents in those countries relating to community land
grants in the State of New Mexico.
SEC. 5.--DEVELOPMENT OF CODE OF LAND GRANT CLAIMS PROCEDURES.
(a) Development of Procedures.--Not later than one year
after the date on which the second bilateral agreement
described in section 4 is concluded, the Commission shall
develop workable and equitable procedures, in clear and
concise form, for land grant evaluations, including but not
limited to--
(1) a criteria for the Commission to use during its
evaluation of what constituted a legal community land grant
under Mexican and Spanish law;
(2) the scope of admissible evidence;
(3) appropriate presumptions, if any, regarding previous
adjudications made by the Surveyor General and the Court of
Private Land Claims, and other court decisions involving the
Treaty;
(4) a set of procedural rules setting forth the burden of
proof that the Commission will use in determining the
validity of community land grants;
(5) an outline of investigative services the Commission
proposes to make available to land grant claimants;
(6) safeguard, acceptable to title insurance companies, to
ensure that private property owners will not be affected,
either with the threat of losing possession to their property
or any impairment to the legal, equitable or clear title to
their property by the work of the Commission.
(8) safeguard, acceptable to the New Mexico State Engineer,
that clearly protect and do not in any way affect the water
rights of any person or entity;
(9) safeguards, acceptable to the various Native American
Tribes and Pueblos, that clearly protect the status quo
regarding existing Indian Lands;
(10) procedures, acceptable to the various Native American
Tribes and Pueblos, that--
(A) provide them with access to sacred sites that may
eventually be adjudicated as community land grants, and that
may become part of any reconstituted community land grant;
and
(B) require that any such sites be identified by the
various Native American Tribes and Pueblos during the
development of the Code of Land Grant Claims Procedures for
the Commission;
(11) an outline of the rights and responsibilities of
community land grantees if a community land grant is
reconstituted, and
(12) any other items the Commission deems appropriate and
necessary.
(b) Review by Congressional Energy Committees.--Prior to
beginning the examination of specific community land claims,
the Commission shall submit the Code of Land Claims Procedure
to the Committee on Energy and Natural Resources of the
Senate and the Committee on Resources of the House of
Representatives. The Committees shall have ninety days to
hold hearings and examine the Code. The Commission may not
commence evaluations of specific community land claims
earlier than the 90 days after the date of submission of the
Code under this subsection.
SEC. 6. EXAMINATION OF LAND CLAIMS LOCATED IN NEW MEXICO.
(a) Submission of New Mexico Land Claims Petitions.--Any
three (of more) eligible descendants who are also descendants
of the same community land grant may file with the Commission
a petition on behalf of themselves and all other descendants
of that community land grant seeking a determination of the
validity of the land claim that is the basis for the
petition.
(b) Deadline for Submission.--To be considered by the
Commission a petition under subsection (a) must be received
by the Commission not later than five years after the date on
which the Committee on Energy and Natural Resources and the
Committee on Resources of the House of Representatives has
completed the 90-day review period.
(c) Elements of Petition.--A petition under subsection (a)
shall be made under oath and shall contain the following:
(1) The names and addresses of the eligible descendants who
are petitioners.
(2) The fact that the land involved in the petition was a
community land grant at the time of the effective date of the
Guadalupe-Hidalgo Treaty and that such land is now within the
borders of the State of New Mexico.
(3) The extent of the community land grant, to the best of
the knowledge of the petitioners, accompanies with a survey
or, if a survey is not feasible for them, a sketch map
thereof.
(4) The fact that the petitioners reside, or intend to
settle upon, the community land grant.
(5) All facts known to petitioners concerning the community
land grant, together with copies of all papers in regard
thereto available to petitioners.
(d) Petition Hearing.--At one or more designated locations
in the State of New Mexico, the Commission shall hold a
hearing upon each petition timely submitted under this
section, at which hearing all persons having an interest in
the land involved in the petition shall have the right, upon
notice, to appear as a party.
(e) Subpoena Power.--
(1) In general.--The commission may issue subpoenas
requiring the attendance and testimony of witnesses and the
production of any evidence relating to any petition submitted
under subsection (a). The attendance of witnesses and the
production of evidence may be required from any place within
the United States at any designated place of hearing within
the State of New Mexico.
(2) Failure to obey a subpoena.--If a person refuses to
obey a subpoena issued under paragraph (1), the Commission
may apply to a United States district court for an order
requiring that person to appear before the Commission to give
testimony, produce evidence, or both, relating to the matter
under investigation. The application may be made within
the judicial district where the hearing is conducted or
where that person is found, resides, or transacts
business. Any failure to obey the order of the court may
be punished by the court as civil contempt.
(3) Service of subpoenas.--The subpoenas of the Commission
shall be served in the manner provided for subpoenas issued
by a United States district court under the Federal Rules of
Civil Procedure for the United States district courts.
(4) Service of process.--All process of any court to which
application is to be made under paragraph (2) may be served
in the judicial district in which the person required to be
served resides or may be found.
(f) Decision.--On the basis of the facts contained in a
petition submitted under subsection (a), and the hearing held
with regard to the petition, the commission shall determine,
consistent with the Code of Land Claims Procedure, the
validity of the community land grant described in the
petition. The decision shall include a recommendation of the
Commission regarding whether the community land grant should
be reconstituted and its lands restored.
(g) Protection of non-Federal Property.--The decision of
the Commission regarding the validity of a petition submitted
under subsection (a) shall not affect the ownership, title or
rights of owners of any non-federal lands covered by the
petition. Any recommendation of the Commission under
subsection (f) regarding whether a community land grant
should be reconstituted and its lands restored may not
address affect or otherwise involve non-Federal lands. In the
case of a valid petition covering lands held in non-Federal
ownership, the Commission shall modify the recommendation
under the subsection (f) to recommend the substitution of
comparable Federal lands in the State of New Mexico for the
lands held in non-Federal ownership.
SEC. 7. COMMUNITY LAND GRANT STUDY CENTER.
To assist the Commission in the performance of its
activities under section 4, the commission shall establish a
Community Land Grant Study Center at the Onate Center in
Alcalde, New Mexico. The Commission shall be charged with the
responsibility of directing the research, study, and
investigations necessary for the Commission to perform its
duties under this Act.
SEC. 8. MISCELLANEOUS POWERS OF COMMISSION.
(a) Hearings and Sessions.--The Commission may, for the
purpose of carrying out this Act, hold hearings, sit and act
at times and places, take testimony, and receive evidence as
the Commission considers appropriate, the Commission may
administer oaths or affirmations to witnesses appearing
before it.
(b) Powers of Members and Agents.--Any member or agent of
the Commission may, if authorized by the Commission, take any
action which the Commission is authorized to take by this
section.
(c) Gifts, Bequests, and Devises.--The Commission may
accept, use, and dispose of gifts, bequests, or devises of
services or property, both real and personal, for the purpose
of aiding or facilitating the work of the Commission so long
as it is determined that the acceptance of such gifts,
bequests or devises do not constitute a conflict of interest.
(d) Mails.--The Commission may use the United States mails
in the same manner and under the same conditions as the other
departments and agencies of the United States.
(e) Administrative Support Services.--Upon the request of
the Commission the Administrator of General Services shall
provide to the Commission, on a reimbursable basis, the
administrative support services necessary for the Commission
to carry out its responsibilities under this Act.
(f) Immunity.--The Commission is an agency of the United
States for the purpose of part V of title 18, United States
Code (relating to immunity of witnesses).
SEC. 9. REPORT.
As soon as practicable after reaching its last decision
under section 6, the Commission shall submit to the President
and the
[[Page S10664]]
Congress a report containing each decision, including the
recommendation of the Commission regarding whether certain
community land grants should be reconstituted, so that the
Congress may act upon the recommendations.
SEC. 10. TERMINATION
The Commission shall terminate on 180 days after submitting
its final report under section 9.
SEC. 11. AUTHORIZATION OF APPROPRIATIONS
There is authorized to be appropriated $1,000,000 for each
of the fiscal years 1999 through 2007 for the purpose of
carrying out the activities of the Commission and to
establish and operate the Community Land Grant Study Center
under section 7.
____
Mr. DOMENICI. Sr. Presidente, el proyecto de ley que estoy
introduciendo hoy es el primer paso de progresion en corregir una
injusticia del antiguo que ha manchado la conciencia de la historia de
Nuevo Mejico. Es una injusticia que se remonta al tiempo en que
Jefferson Davis, Daniel Webster, y Sam Houston andaban en los pasillos
del Capitol como senadores.
En 1848, los Estados Unidos firmaron el Tratado de Guadalupe-Hidalgo
con Mejico. Con este tratado, los Estados Unidos adquirieron el
territorio que ahora es California, Nevada, Arizona, Nuevo Mejico,
Colorado, y Wyoming. [El Tratado de Guadalupe-Hidalgo soluciono algunos
problemas pero creo otros. No protegio adecuadamente los derechos
civiles y de propiedad de la gente que vive en el territorio nuevamente
anexado.]
Este proyecto de ley es un pedazo de legislacion muy importante. Es
la oportunidad de invertir la herencia de la mala voluntad entre la
gente hispanica y el gobierno federal. Los descendientes hispanicos han
estado esperando 150 anos para inducir al gobierno federal para mirar
con justticia las concesiones de la tierra.
Ratificamos un tratado con las provisiones de las garantias de los
derechos de propiedad que, en retrospeccion, han resultado ser
inadecuadas. John R. Van Ness describio el tratado como reparto enorme
de las propiedades inmobiliarias, pero condujeron a los demandantes de
la concesion de la tierra a creer que los derechos de propiedad serian
honrados y protegidos. Algunos funcionarios con el gobierno federal,
por otra parte, esperaban para obtener titulo claro a la mayoria de la
pista que lo pagaba, sin importar el derecho de propiedad existente de
los mejicanos.
Los demandantes de la concesion de la tierra han aguantado a
oficiales hostiles del gobierno. En una punta, el Presidente Cleveland
designo Guillermo Andrew Sparks como el agrimensor general para Nuevo
Mejico. Sparks han sido descrito por los historiadores segun lo
``empapado en prejudicar contra Nuevo Mejico, su gente, y los derechos
de propiedad.'' Teniamos abogados corruptos y una confederacion de los
oportunistas que utilizaron batallas legales largas para adquirir los
imperios de tierra que extendieron muchos millones acres--todos a
expensas de los hispanos.
En 1891, el Agrimensor General fue substituido de la Corte de las
Reclamaciones Privadas. La situacion fue de malo a peor porque los
procedimientos de la corte favorecieron fuertemente el gobierno. El
resultado fue injusticia.
La Corte de Reclamaciones de Nuevo Mejico requirio que los
demandantes prueben que el funcionario espanol o mejicano que concedio
tenia la autoridad legal para publicar la concesion de la tierra. Por
lo tanto, muchas concesiones de la tierra de Nuevo Mejico fueron
llevadas a cabo sin ser legitimas. Consecuentemente, la Corte de Nuevo
Mejico rechazo dos tercios de las reclamaciones presentadas. En ultima
instancia, por una cuenta escrita por Richard Griswold del Castillo,
solamente las concesiones del ochenta-y-dos recibieron la confirmacion
del Congreso. Esto represento solamente seis por ciento del area total
buscados de los demandantes. La Corte de las Reclamaciones Privadas de
la Tierra agrando el dominio nacional del gobierno federal a expensas
de los centenares de aldeas hispanicas, dejando una herencia amarga.
Esta proyecto de ley se basa en la legislacion aprobada recientemente
por Congressman Bill Redmond. Este es un pedazo de legislacion
importante, y aplaudo Congressman Redmond. El vino a Washington,
identifico rapidamente uno de los conflictos mas importantes y de
muchos anos que sus componentes han tenido con el gobierno federal, y
el tomo una accion decisiva--el aprobo una cuenta importante para
comenzar el proceso de juzgar estas reclamaciones.
Algunos miembros se jubilaron de 20- y 30 anos y nunca alcanzan el
paso de legislacion importante, pero, Congressman Redmond consiguio la
aprobacion de esta cuenta en la Casa de Representantes en su primer
termino.
La cuenta de Congressman Redmond crea a una Comision Presidencial
para juzgar las concesiones de la tierra de la comunidad situadas en
Nuevo Mejico. Se disena para beneficiar a descendientes de los
ciudadanos mejicanos que colocaron en Nuevo Mejico antes del Tratado de
Gudelupe-Hidalgo. El proposito de la legislacion es para determinarse
que concesiones de la tierra de la comunidad se podrian reconstituir de
la tierra tenida actualmente por el gobierno federal. La legislacion
finalmente pone el espiritu del Tratado de Guadalupe-Hidalgo.
Dije a Congressman Redmond que patrocinaria su proyecto en el Senado,
y estoy introduciendo hoy el proyecto del companero. Estoy orgulloso
hacer tan.
He hecho muy pocos cambios y solamente un par de adiciones en la
version de este proyecto que estoy introduciendo hoy.
Los cambios se basan en las lecciones que he aprendido de hablar con
los herederos de algunas de las concesiones de la tierra; de repasar la
historia; y de hablar con los eruditos, historiadores, y los abogados
de la concesion de la tierra.
Deseo agradecer a Roberto Mondragon, Max Cordova, Estevan Arellano,
Joyce Guerin, Georgia Roybal, Juan Sanchez, Pedro Gutierrez Jr., y
Roberto Torrez por su ayuda inestimable.
Tambien he pedido los caudillos de los Indios para repasar el
bosquejo, y mientras que yo todavia no he recibido sus comentarios,
quisiera que supieran que creo que sus asuntos son muy importantes, y
miro adelante a trabajar con ellos.
Primero, me parecia que el gobierno federal necesita tomar un papel
afirmativo en la obtencion de la documentacion necesaria para probar la
validez de las concesiones de la tierra de la comunidad.
Desafortunadamente, muchos de los documentos de Nuevo Mejico fueron
destruidos. Pero los eruditos me han dicho que los gobiernos mejicanos
y espanoles tienen archivos siempre mejorando. Esta proyecto requiere a
la secretaria del estado negociar un acuerdo con Mejico y Espana para
el acceso a los documentos. Se parece especialmente apropiado que en
1998, cuando Nuevo Mejico celebra su 400o aniversario del primer
establecimiento hispanico que nuestro gobierno comenzaria a negociar
los acuerdos necesarios para estos documentos criticos e historicamente
significativos.
En la leyenda de las historias, me parecia que habia mucha ambiguedad
en el tratado, y aun mas ambiguedad y discrecion en los estatutos que
establecian el agrimensor general y la corte de las reclamaciones
privadas de la tierra.
Creo que la historia sostiene mi opinion que la ambiguedad trabaje al
detrimento de los demandantes. Por lo tanto, propongo que antes de que
la Comision comience su trabajo sobre el juicio de reclamaciones
especificas, primero se convierte reglas claras y sucintas por lo tanto
cada uno sea tratado con justicia. Esta legislacion requiere a la
Comision presidencial ser formada y despues desarrollar un Codigo del
Procedimiento de las Reclamaciones de la Tierra que seria repasado del
Comite de la Energia para asegurarse de que todo es justicia.
Cuando los documentos sean disponibles y se han explicado las reglas,
la Comision serian listas para juzgar las reclamaciones de la tierra.
Tratar de hacer la justicia 150 anos despues del hecho es complicado.
Esta legislacion sostiene inofensivos a propietarios privados de
tierra. Se cerciora de que las companias de titulo y los prestamistas
sean satisfechos que esta legislacion no afectara al contrario la
caracteristica privada. Se cerciora de que nuestro Ingeniero del
[[Page S10665]]
Estado este satisfecho con los criterios usados a encargar de las
demandas de la tierra sin trastornar nuestro sistema de los derechos
del agua. Creo que podemos todos convenir que no deseamos que el
gobierno federal interfiera con nuestro sistema de los derechos del
agua!
La legislacion requere a la Comision en su Codigo del Procedimiento
de las Reclamaciones de la Tierra para tener una coleccion clara de
reglas para lo que se pude hacer o no se puede hacer para los indios.
Estoy confiado que este proyecto que tiene demasiado tiempo sin dar
cuenta de la perdida de la tierra y de la negacion se resolvera sin
crear nuevos problemas o injusticias.
Gracias, Sr. presidente.
______
By Mr. GRASSLEY (for himself, Mr. Kyl, and Mr. Hatch):
S.J. Res. 56. A joint resolution expressing the sense of Congress in
support of the existing Federal legal process for determining the
safety and efficacy of drugs, including marijuana and other Schedule I
drugs, for medicinal use; read the first time.
______
By Mr. KYL (for Mr. Grassley (for himself, Mr. Kyl, and Mr.
Hatch):
S.J. Res. 57. A joint resolution expressing the sense of Congress in
support of the existing Federal legal process for determining the
safety and efficacy of drugs, including marijuana and other Schedule I
drugs, for medicinal use; to the Committee on Labor and Human
Resources.
expressing the sense of congress in support of the existing federal
legal process for determining the safety and efficacy of drugs
Mr. GRASSLEY. Mr. President, I send to the desk a joint resolution.
This joint resolution is being introduced with the distinguished
Senator from Arizona, Senator Kyl, who is now in the chair, to address
a very important issue. It is not an easy one to grasp on its face.
This is largely because of an effort by some to misrepresent the facts
of the case. In offering this resolution and asking my colleagues to
join me in supporting and passing it, I would like to make some things
very clear.
What this resolution expresses is the sense of the Congress for
supporting existing procedures for determining the safety and efficacy
of drugs made available to the public.
Specifically, it puts the Congress and the administration on record
opposing the legalization of dangerous drugs such as marijuana, heroin,
and LSD.
As we consider this language, we are likely to hear from many of the
drug legalization lobbies. They are going to try to misrepresent their
true goals and the meaning of this resolution. We have already seen
some of these tactics in the House earlier this week. They are going to
tell you that this resolution opposes sick people. They are going to
tell you that they only want to make medicine available to the
desperately ill. They imply, of course, that the rest of us are opposed
to helping the sick. But the agenda here is not about helping sick
people; it's about drug legalization.
Let's look at who's lobbying against our resolution. Since this is
supposed to be about medicine, who's lobbying Congress? It is not the
American Medical Association. It is not the American Psychiatric
Association. It is not the American Cancer Society, the Glaucoma
Society, the American Pediatrics Association, or any professional
association of treatment specialists and scientists. It is the Drug
Policy Foundation which opposes it, and the Marijuana Policy Project,
the magazine High Times, and the marijuana legalization lobby, NORML--
the National Organization for the Reform of Marijuana Laws. All of
these groups are drug legalization lobbies. And have been for years.
None of these groups are medical associations or have any scientific
expertise. What they rely on is anecdotes, scare tactics, and
misinformation. Now, what is the agenda here? Is the goal medicine or
legalization?
Their agenda and their goal is not medicine, but it is legalization
of drugs.
Let me note who's supporting our resolution. It is the Nation's drug
czar. It is Gen. Barry McCaffrey. It is national parent groups, like
National Families in Action and Community Anti-Drug Coalitions of
America. It is the Parents' Resource Institute for Drug Education, or
PRIDE. It is supported by virtually every anti-legalization group
across the country in every state in the Union. They know the answer to
my question.
But, let's consider another point. How do we normally make a
dangerous drug with a high potential for abuse available as a
legitimate medicine? Normally we do so with scientific validation. We
do so by prescription. We control the quantities, the quality, and the
distribution. We do not permit self-diagnosis and treatment. We do not
license private citizens to manufacture the drugs in their kitchens or
bathrooms. But what is happening with the efforts to make marijuana and
other Schedule I drugs legal?
In most states where this effort is afoot, there is no prescription
requirement. There is no scientific validation required. There are no
controls and no supervision. People are authorized to grow marijuana,
for example, at home. They are authorized to self administer it in any
dose for any length of time for any ailment they think necessary. This
does not mean for the terminally ill or those with desperate
conditions. It means for any condition, from migraines to athlete's
foot. Is this the way we treat Valium or anti-depressants? Is this the
way we treat heart medicine or blood pressure medicine? Is this about
medicine or about legalization? The answer is all too clear.
Our resolution addresses the effort by the drug legalization lobby in
this country to get marijuana and other dangerous drugs on the streets,
in our homes, and in our schools. These groups have been trying to do
this for years. Sadly, they have been somewhat successful.
They have failed because the public won't have anything to do with
legalization. The public overwhelmingly opposes efforts to legalize.
Knowing this, the legalization lobby has hit upon a subterfuge to slip
legalization through by calling it a medicine. It is a cynical and
deceptive campaign.
What is being done here by these groups is to manipulate the public's
concerns for the desperately ill. In efforts across the country, well-
funded lobbying groups are promoting initiatives to declare marijuana
and other dangerous drugs medicine. They are exploiting compassion to
push their drug agenda. This effort is as fully sincere as anything we
saw from the tobacco companies in their efforts to sell cigarettes.
What our resolution does is to put the Congress and the
administration on record opposing this effort. We are taking this step
to protect the present and future generations of young people from
illegal drugs. The resolution passed the other body on Tuesday 310 to
93. I ask unanimous consent to have printed in the Record a letter from
General McCaffrey, the Nation's drug czar, to me. He endorses this
resolution. The administration supports it.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Executive Office of the President, Office of National
Drug Control Policy,
Washington, DC, September 9, 1998.
Hon. Charles Grassley,
U.S. Senate,
Washington, DC
Dear Senator Grassley: Thank you for the opportunity to
review your proposed Joint Resolution regarding the medicinal
use of marijuana. The Office of National Drug Control Policy
applauds your continuing contribution to the nation's drug
policy. We at ONDCP offer our support for this important
resolution and urge the Senate to send a clear signal to
those who advocate for legalization of marijuana when the
resolution comes to the Floor for a vote.
State ballot initiatives that define marijuana as a
``medicine'' fail to address the negative impact such
legislation would have on the health of our youth or the
nation's scientific process of approving medications.
Designating medicine through ballot initiatives would
undermine the long-established process which ensures that
substances provided to the American public as medicines have
undergone rigorous scientific scrutiny. This procedure
protects Americans from unproven, ineffective, or dangerous
treatments. Making an exception for marijuana would create a
dangerous precedent. Medicine must be based on science rather
than ideology.
Proponents of marijuana initiatives present marijuana as a
benign substances. However, the latest scientific evidence
demonstrates that marijuana is not. Smoked marijuana damages
the brain, heart, lungs,
[[Page S10666]]
amd immune system. It impairs learning and interferes with
memory, preception and judgment. Smoked marijuana contains
cancer-causing components and has been implicated in a high
percentage of automobile crashes and workplace accidents.
As your resolution points out, marijuana is also associated
with behavior leading to more extensive drug use.
Legalization of marijuana as medicine sends a confusing
message to America's children at a time when drug use by
young people has increased at an alarming rate. The increase
in youth marijuana use has been fueled by a measurable
decrease in the proportion of young people who perceive
marijuana as dangerous.
Some Americans are unclear about what the scientific
research shows about the effects of marijuana. To clarify
this issue, ONDCP has commissioned a comprehensive study by
the National Academy of Science's Institute of Medicine. It
is crucial that America tell the truth to our children about
the dangers of drug use. Toward that end, we congratulate you
and the other sponsors of this Joint Resolution.
Respectfully,
Barry R. McCaffrey,
Director.
Mr. GRASSLEY. Mr. President, drug use among kids is growing
dramatically. In the last few years, after a decade of decline, drug
use is on the rise among 12- to 17-year-olds. The age for first use of
illegal drugs has dropped. Today, the first-use of marijuana by 12- to
17-year-olds is the highest since we've been keeping records. The same
is true for cocaine, heroin, and hallucinogens. We need to be talking
seriously about how to stop this. This is why we ask our colleagues to
support our resolution.
I send that resolution to the desk. I send it to the desk and ask
that it be read for the first time.
The PRESIDING OFFICER. The clerk will report.
A joint resolution (S.J. Res. 56) expressing the sense of
Congress in support of the existing Federal legal process for
determining the safety and efficacy of drugs, including
marijuana and other Schedule I drugs, for medicinal use.
Mr. GRASSLEY. I now ask for its second reading, and I object to my
own request.
The PRESIDING OFFICER. Objection is heard.
Mr. KYL. Mr. President, I rise today with my colleagues, Senator
Grassley and Senator Hatch, to introduce this joint resolution, which
passed the House of Representatives last Tuesday by a vote of 310-93.
It has been endorsed by the administration's drug czar, Gen. Barry
McCaffrey, and is part of our legislative response to the recent and
significant increases in drug use, especially among our young people.
It is this subject to which Senator Grassley spoke earlier this
afternoon.
Before I explain what this resolution is about, let me explain how it
came about. In March of this year, Senator Grassley and I convened an
antidrug legalization roundtable. Attendees included Bill Bennett,
Senator Mack, and 21 other people representing the Drug Czar's Office,
civic groups, family groups and law enforcement officials. At that
meeting, we learned about efforts all across the country to legalize
drugs, including marijuana and other Schedule I drugs. Schedule I drugs
include things not only like marijuana but LSD and heroin.
The groups asked why Congress, which, after all, enacts Federal drug
laws, and the administration, which enforces Federal drug laws, have
been relatively silent in the face of these ever bolder attempts to
legalize drugs around the country. They urged us to step up to the
plate and exert some leadership. They were correct in that request.
This joint resolution is but one step in the effort to demonstrate to
our youth that the U.S. Congress strongly opposes drug abuse and
efforts to legalize drugs. This resolution, I believe, will help send a
very clear message that so long as marijuana, heroin, LSD, and others
remain Schedule I drugs under the Controlled Substances Act, that
Federal law should not be altered through adoption of statewide ballot
propositions that would legalize these drugs.
Consider these statistics relating to drug use, especially among
children: Marijuana use has more than doubled nationally since 1991.
Heroin usage for 8th and 12th graders has more than doubled in the last
5 years. A 1997 survey by the Center on Addiction and Substance Abuse
at Columbia University showed that 500,000 8th graders began using
marijuana in the 6th and 7th grades. Even more alarming are the
statistics in my own State of Arizona, where one out of six youths has
used illegal drugs within the past month. This is one-third higher than
the national average. Over 13 percent of Arizona children between the
ages of 12 and 17 said they have used marijuana in the past month.
Almost 17 percent admitted to having used any illicit drug, including
cocaine, heroin, or inhalants, according to the National Household
Survey on Drug Abuse.
Attempts to legalize drugs by way of State ballot initiatives
inhibits us from getting drugs out of our schools, out of our
workplaces, and out of our communities.
How can we expect our children to resist the lure of drugs if harmful
drugs like marijuana are legalized under the guise of medicinal use,
even though the FDA has not approved those drugs for medicinal use? How
can we expect to have safe, drug-free workplaces if employees can smoke
marijuana on the job, claiming it is medicine? How can we expect to
have successful drug treatment programs if someone can light up a joint
during a joint discussion, claiming marijuana is, after all, medicine?
In my own State of Arizona, the voters passed a ballot initiative,
Proposition 200, in 1996 which legalized all Schedule I drugs for
medicinal purposes. These would include marijuana, heroin, LSD, and all
of the other Schedule I drugs. This year, there is another proposition
which, if passed, will require the FDA to approve the efficacy of
Schedule I drugs before they could be prescribed. That, of course,
would be consistent with Federal law. I have been in strong support of
that proposition.
Over $1.5 million was spent in Arizona by the prolegalization forces
in the last election, the most prominent of whom were not from Arizona.
Arizona is not the only State that is now a target of drug
legalization. Other States that currently have pending legalization
initiatives or legislation are Alaska, Arkansas, California, Colorado,
the District of Columbia, Massachusetts, Nevada, Oregon, Rhode Island,
New York, and Washington.
This joint resolution that we have introduced puts Congress and the
administration firmly behind the existing Federal legal process for
determining the safety and efficacy of drugs, including marijuana and
all other Schedule I drugs for medicinal use.
Under current law, marijuana, heroin, LSD, and more than a hundred
other drugs are classified as Schedule I because they have a high
potential for abuse and lack any current accepted medical use.
Federal law [Controlled Substances Act] prohibits Schedule I drugs
from being manufactured, distributed, or dispensed. This resolution re-
affirms the law. It says that before any drug can be approved as a
medication, it must meet extensive scientific and medical standards
established by the FDA to ensure it is safe and effective. Marijuana
and other Schedule I drugs have not been approved by the FDA to treat
any disease or condition, though studies are being conducted to
determine if there is any potentially appropriate treatment using
marijuana. Attempts to legalize drugs fly in the face of established
procedures for approving the safety and efficacy of drugs. Most
important, legalization sends the wrong message to youth about the
health and safety risks of using drugs.
I have joined with Senator Grassley, Senator Hatch, and my colleagues
in the House, Representative McCollum and Representative Cox in
introducing this resolution because I believe we must reassert
leadership in this area.
I am particularly pleased that the administration supports this
resolution, and I would just like to take a moment to single out
General McCaffrey for the good work that he has done in improving the
nation's drug-control policy.
I would urge my colleagues to pass this important piece of
legislation and send it to the President for his prompt signature.
Mr. GRASSLEY. Mr. President, I request that the Senator from Arizona
and I might enter into a colloquy on the question of our resolution.
Do I understand correctly that the effort in Arizona would not only
legalize marijuana it would also make
[[Page S10667]]
available as a so-called medicine heroin, LSD, and over 100 other
dangerous drugs?
Mr. KYL. That is correct.
Mr. GRASSLEY. It is the Senator's understanding that there is no
recognized medical use for heroin or LSD?
Mr. KYL. To my knowledge, neither of these drugs, which would be made
legal in Arizona for medical use, have any recognized medical utility.
In addition, both of these substances are illegal to prescribe as
medicine under federal law and no doctor is authorized to prescribe
them as a treatment.
Mr. GRASSLEY. Am I correct in believing that it is also illegal to
prescribe marijuana, as a Schedule I drug, under Federal Law?
Mr. KYL. That is correct. Under the Controlled Substances Act, which
governs how we deal with all drugs in this country, no Schedule I drug
may be prescribed as a medicine. Schedule I drugs are placed in this
category because they have no recognized medical use and have a high
potential for abuse. These drugs are illegal because they are
dangerous, they are not dangerous because they are illegal.
Mr. GRASSLEY. It is my understanding that we have the Federal Food,
Drug, and Cosmetic Act, the Controlled Substances Act, and other laws
governing the manufacture and sale of drugs in order to ensure they are
safe and effective for public use.
Mr. KYL. That is correct. Many of these laws are on the books because
at one time anybody could market any product to the public and call it
a drug. Those were the days of snake oil salesmen who made the wildest
claims for their products. They, of course, called their products
``medicine'' and sold them as cure-alls for every possible ailment. In
many cases, in the early years of this century, those products
contained large quantities of alcohol, opiates or cocaine. As a result,
this country experienced a major drug epidemic centered largely on
women and children who mostly used these products. None of the products
were subject to regulation, they did not treat any diseases, there were
no cures, but they did create a lot of addicts. Later, in response to
this situation, Congress passed laws regulating these products to
ensure that the public was not the victim of bad medicine, false
claims, and snake oil.
Mr. GRASSLEY. The purpose of those laws was to ensure that we didn't
declare anything a medicine until it had been scientifically evaluated,
clinically tested, and proven effective, is that right?
Mr. KYL. Yes. Sometimes the time it takes to do this is frustrating,
but the purpose is to ensure that we provide safe and effective
medicine to the public.
Mr. GRASSLEY. As part of that process, when a medicine is found to
work but is also found to be dangerous or subject to abuse, how is that
normally dealt with?
Mr. KYL. Apart from over-the-counter medicines, we regulate access to
drugs. This is what prescriptions are for. For dangerous drugs with a
potential for abuse, we license their use and only permit people to use
them based on a physician's prescription and under the continuing care
of a doctor.
Mr. GRASSLEY. In many of the efforts we currently see to declare
marijuana a medicine, I believe there is no requirement for a doctor's
prescription?
Mr. KYL. The Senator is correct. In most of these efforts, what is
called for is a doctor's recommendation. Frankly, that could mean
anything.
Mr. GRASSLEY. That's certainly an unusual practice but if I
understand many of these efforts, not only is no prescription required
but users are authorized to grow marijuana at home for their own use.
Mr. KYL. The language differs in the various states, but that's
essentially correct.
Mr. GRASSLEY. I believe that it is the case in some states or here in
the nation's capital, a so-called care giver or up to three or four
different care givers are authorized to grow marijuana at home and give
it out. Let me see if I understand just what that means. If, for
example, I was taking insulin to control diabetes, the parallel would
be for me to be authorized to make it at home or to have three or four
of my friends make it and give it to me when I wanted it.
Mr. KYL. That's about it.
Mr. GRASSLEY. So, there would be none of the normal controls or
quality checks or physician-supervised treatments that we expect when
we talk about medicine, especially medicine for the very ill?
Mr. KYL. That's right. But there is another big difference. These
efforts do more than authorize that practice you describe. They place
no limits on who would be eligible to receive these ``treatments'' and
they do not limit the ``illnesses'' for which you may take the drug.
Mr. GRASSLEY. So, this drug can be used for anything anyone feels the
need, they do not have to have a terminal illness or any serious
disease?
Mr. KYL. That's just one more thing about these efforts that
demonstrate what is really behind them. The real motive here is to
legalize these drugs, not to make medicine available.
Mr. GRASSLEY. I agree with the Senator. If this effort succeeds, it
looks to me like it could have a major effect in sending signals to
young people about drug use.
Mr. KYL. The Senator is correct. We are already seeing the highest
rates of first-time use of marijuana among teens and pre-teens in over
30 years. We are on the verge of a major, new drug epidemic. I do not
think this is the time to be sending the kind of mixed message we see
in these efforts to legalize marijuana or other Schedule I drugs.
Mr. GRASSLEY. I am working in my state to develop a statewide anti-
drug coalition. In doing this, I have seen personally what is happening
all across my state because of growing illegal drug use. This doesn't
just affect kids, although they are the most vulnerable for use. Drug
use affects whole families and communities. I agree that we must speak
out against efforts to make our drug problem worse than it already is.
We need to blow the whistle on these efforts to legalize by indirect
means. I want to thank my distinguished colleague for taking the time
to help me think through these issues.
Mr. KYL. I would like to thank the Senator for his efforts and I look
forward to working with our colleagues to pass this resolution.
Mr. GRASSLEY. I would also like to thank the Senator for all his
efforts on this.
____________________