(Senate - September 21, 1998)

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[Pages S10657-S10667]
From the Congressional Record Online through the Government Publishing Office []


      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 

             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,


       This Act may be referred to as the ``Vessel Hull Design 
     Protection Act''.


       Title 17, United States Code, is amended by adding at the 
     end the following new chapter:


``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 
``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 
       ``(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 
       ``(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 

     ``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 

     ``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 
       ``(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); 
       ``(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 
       ``(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 
       ``(4) the date, if any, that the design was first made 
     public, if such date was earlier than the date of the 
       ``(5) affirmation that the design has been fixed in a 
     useful article; and
       ``(6) such other information as may be required by the 

     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 
       ``(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 

       ``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 

     ``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 
       ``(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 
       ``(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 

     ``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 

     ``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 
       ``(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 

     ``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 

     ``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.''.


       (a) Table of Chapters.--The table of chapters for title 17, 
     United States Code, is amended by adding at the end the 

``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''.


       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 
  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-
  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 
  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 
  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


       (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.


       (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 
       (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-
       (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.


       (a) Establishment.--There is established a commission to be 
     known as the ``Guadalupe-Hidalgo Treaty Land Claims 
       (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.


       (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.


       (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 
       (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; 
       (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 
       (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.


       (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 
       (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 
       (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.


       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.


       (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 
       (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.


       The Commission shall terminate on 180 days after submitting 
     its final report under section 9.


       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 
  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 
  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 
  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 
  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. 
  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 

  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 
  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.
                                               Barry R. McCaffrey,

  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 
  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 
  Mr. KYL. The Senator is correct. In most of these efforts, what is 
called for is a doctor's recommendation. Frankly, that could mean 
  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 
  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.