Cooperative Research and Technology Enhancement (CREATE) Act of 2004

Madam President, I rise today to support passage of S. 2192, the Cooperative Research and Technology Enhancement Act of 2004 or CREATE Act. I am pleased that the Senate is considering this important patent legislation. I would like to thank Senators Leahy, Kohl, Grassley, Feingold and Schumer, for their work on, and cosponsorship of, this bill.

The CREATE Act responds to an important need of our inventive community. This act will encourage greater cooperation among universities, public research institutions and the private sector. It does so by enabling these parties to share freely information among researchers that are working under a joint research agreement to develop new technology. It also allows these entities, particularly universities, to structure their relationships with other research collaborators in a more flexible manner.

The CREATE Act has benefited significantly from the commendable work of our colleagues in the House. In particular, we take note of the House Report, H. Rep. 108-425, which accompanied passage of H.R. 2391, the House counterpart of S. 2192. The committee notes that the House report addresses a number of important issues related to the implementation of the act, and provides necessary guidance to the Patent and Trademark Office as to its responsibilities under the legislation.

In the interest of further transparency and guidance, and importantly to prevent the public from being subject to separate enforcement actions by owners of patentably indistinct patents, we offer the following guidance on some key aspects of this legislation. We believe that this guidance is entirely consistent with the policy objectives of the House Report, but explicate some of the most critical and complex aspects of the intended operation of the CREATE Act where multiple patents issue on the patentably indistinct inventions.

As the House report correctly notes, the CREATE Act will enable different parties to obtain and separately own patents with claims that are not patentably distinct--in other words, where the claim in one patent would be ``obvious'' in view of a claim in the other patent. The courts and the U.S. Patent and Trademark Office term this ``nonstatutory'' and ``obviousness-type'' double patenting. This is not the first time that Congress has amended the patent laws in a manner that has expanded opportunities for double patenting. The Patent Law Amendments Act of 1984 first created the opportunity for double patenting for patents issued to different inventors that were owned by one entity or which were commonly assigned. In the legislative history for the Patent Law Amendments Act of 1984, Congress indicated its expectation that any newly created opportunities for double patenting would be treated no differently than double patenting for patents issued to the same inventor. We do the same today with respect to the remedial provision in the CREATE Act, but discuss

the form of disclaimer that is required of the patent owner whenever double patenting exists.

At its core, the double patenting doctrine addresses the situation where multiple patents have issued with respective claims in the different patents that meet one or more of the relationship tests set out by the courts. Double patenting can arise when the two involved patents are determined not to relate to independent and distinct inventions. It can also arise if a claim in a later-issued patent would not be novel with respect to a claim in a first-issued patent. A third type of double patenting--and perhaps the most common--is where a claim in a later-issued patent is obvious in view of a claim in a first- issued patent. Whatever the relationship that forms the basis for the double patenting, the current principles governing double patenting should be applied to all such situations involving the issuance of double patents where the provisions of the CREATE Act apply.

The double patenting doctrine exists as a matter of policy to prevent a multiplicity of patents claiming patentably indistinct inventions from becoming separately owned and enforced. Thus, it applies to situations where multiple patents have issued, even if the patents are filed on the same day, issue on the same day and expire on the same day. All that is required for double patenting to arise is that one or more claims in each of the involved patents is determined to represent double patenting under established principles of law. The double patenting doctrine can invalidate claims in any later or concurrently issued patent if those claims are determined to represent double patenting with respect to any of the claims in a first-issued patent. For clarity, any later or concurrently issued patent that creates double patenting can simply be termed a ``patentably indistinct patent'' with respect to the first-issued patent.

Invalidity of the patentably indistinct claims under the doctrine of double patenting can be avoided, however, if an appropriate disclaimer is filed in the patent containing those claims. Under existing practice in the U.S. Patent and Trademark Office, the disclaimer must be filed in the patent with the patentably indistinct claims and must reference the first-issued patent against which the disclaimer applies. Thus, the disclaimer only affects the ability to enforce the disclaimed patent, and historically has not affected the enforceability of the first- issued patent against which the disclaimer has been made. Accordingly, under existing double patenting principles, if the indistinct patent becomes separately owned, i.e., such that it can be separately enforced, the disclaimed patent is rendered invalid in accordance with the terms of the required disclaimer, while the first-issued patent's enforceability is unaffected.

Patents issued after enactment of the CREATE Act will be enforceable in the same manner and to the same extent as when patents are issued to a common owner or are subject to common assignment. One modification of existing disclaimer practice, however, is needed for double patenting to achieve its policy objectives where the CREATE Act applies. The CREATE Act will now permit patents with patentably indistinct claims to be separately owned, but remain valid. Heretofore, this separate ownership would have rendered the indistinct patent invalid. To protect the public interest, these separately owned patents must be subjected to a new form of disclaimer that will protect the public against separate actions for enforcement of both the first-issued patent and any patents with claims that are not patentably distinct over the claims of the first-issued patent.

Accordingly, in every situation where double patenting is created based upon revised section 103(c), the patentably indistinct patent must include a disclaimer that will require the owner of that patent to waive the right to enforce that patent separately from the first-issued patent. The disclaimer also must limit, as is required for all disclaimers related to double patenting, the disclaimed patent such that it can be enforced only during the term of the first-issued patent.

Additionally, the disclaimer required for the valid issuance of a patentably indistinct patent pursuant to the CREATE Act must apply to all owners of all involved patents, i.e., the owner of the patentably indistinct patents as well as any owners of any first-issued patents against which the disclaimer is made. In order for this to be the case, the CREATE Act effectively requires parties that separately own patents subject to the CREATE Act to enter into agreements not to separately enforce patents where double patenting exists and to join in any required disclaimer if the parties intend to preserve the validity of any patentably indistinct patent for which a disclaimer is required.

To give effect to this requirement, the disclaimer in the patentably indistinct patent must be executed by all involved patent owners, as the right to separately enforce the first-issued patent apart from the patentably indistinct patent cannot be avoided unless the owner of the first-issued patent has disclaimed its right to do so. If an enforcement action is brought with respect to a patentably indistinct patent, but the owner of the first-issued patent was not a party to the disclaimer, and had not disclaimed separate enforceability of the first-issued patent once an enforcement action had been commenced on the indistinct patent, the owner of the first-issued patent could not legally be prevented from bringing a later action for infringement against the same party absent disclaiming the right to do so. Thus, the disclaimer of the separate enforceability of an indistinct patent cannot be assured unless the owner of a second indistinct patent has an agreement with the owner of the first-owned patent prohibiting the right of separate enforcement. The CREATE Act will not require the owner of a first-issued patent or an indistinct patent to enforce any such patent. Rather, the prohibition against separate enforcement described above is necessary to address the sole policy objective of preventing different patent owners from separately enforcing a first- issued patent and a related indistinct patent.

Also as indicated in the House report, we expect the U.S. Patent and Trademark Office to take such steps as are necessary to implement the requirements of this act in the manner we have described. In particular, the Patent and Trademark Office should exercise its responsibility for determining the necessity for, and for requiring the submission and recording of, disclaimers in patent applications and to promulgate such regulations as are necessary including, inter alia, rules analogous to 37 CFR Sec. 1.321, that requires disclaimers in patent applications where double patenting exists. To meet the requirements of the act, the parties to the joint research agreement must agree to accept the conditions concerning common term and the prohibition against separate patent enforcement and all involved parties must agree to be signatories to any required terminal disclaimer. I do not believe any particular form need be followed to give effect to this requirement, and that the Office will address these issues pursuant to its implementation of the act.

The House indicated in its committee report that a joint research agreement may be evidenced by one or more writings. I note that evidence of a joint research agreement may take the form of cooperative research and development agreements, CRADAs, material transfer agreements MTAs, or other written contracts or multiple written documents or contracts covering various parties or aspects of the written agreement. As the House Committee indicated in its report, such writing or writings must demonstrate that a qualifying ``joint research agreement'' existed prior to the time the claimed invention was made and that the claimed invention was derived from activities performed by or on behalf of parties that acted within the scope of the agreement. Also, parties to a joint research agreement who seek to benefit from the Act must be identified in the application for a patent or an amendment thereto so the public will have full notice of those patents that have issued pursuant to the provisions of this Act.

As the House Judiciary Committee also noted in its report, the act, pursuant to section 3 of the act, pending patent applications could claim the benefit of the provisions of the act. Thus, an existing joint research agreement

existing prior to the date of enactment can be used to qualify an application to claim the benefits of the act. Such applications, i.e., those pending on the date of enactment of the act, however, must comply with all of the requirements of the Act, including not only the requirements for disclosure among the parties to the agreement, but also the applicable requirement for a terminal disclaimer. The terminal disclaimer obligations, i.e., that all parties to the joint research agreement consent to having any related patents the first-issued patent and patentably indistinct patents, be bound by the requirements of the Act and the disclaimer be executed by all the owners of such patents, shall provide a means for the U.S. Patent and Trademark Office to confirm that each party to an otherwise eligible joint research agreement that is cited to claim the benefits for an application pending as of the date of enactment of the act has consented to have the act so apply to that application. Thus, associated with any patent application pending on the date of enactment of the act, there will be written evidence of an agreement of the parties to the joint research agreement to affirmatively claim the benefits of, and to be bound by the requirements of, the CREATE Act, by the act of the parties to the joint research agreement recording evidence of their agreement in the same manner as evidence of documents that affect some interest in an application or patent are now recorded with the Patent and Trademark Office.

Before I yield, I would like to thank the cosponsors and their respective staffs for their work on this legislation. In particular, I commend Susan Davies, Jeff Miller, Dan Fine, Dave Jones, and Tom Sydnor for their hard work on this issue. Also, I extend my heartfelt gratitude to Katie Stahl for her hard work on this, and numerous other issues. I was informed today that she will be leaving the Judiciary Committee staff in a couple of weeks, and I want to take this opportunity to acknowledge publicly how sorely she will be missed.

Mr. President, I rise today to introduce the Corps of Engineers Modernization and Improvement Act of 2004. I am pleased to be joined by the senior Senator from Arizona, Mr. McCain, who worked with me in the 107th Congress to reform the Corps. I also thank the senior Senator from South Dakota, Mr. Daschle, who, as the Democratic Leader, has long supported Corps reform, for cosponsoring this legislation today.

As we debate the budget resolution this week, we cannot ignore the record-breaking deficits that the Nation faces. Fiscal responsibility has never been so important. This legislation provides Congress with a unique opportunity to underscore our commitment to that goal. Time and time again we have heard that fiscal responsibility and environmental protection are mutually exclusive. Through this legislation, however, we can save taxpayers billions of dollars and protect the environment. As evidence of this unique opportunity, this bill is supported by Taxpayers for Common$ense, the National Taxpayers Union, the National Wildlife Federation, American Rivers, the Corps Reform Network, and Earthjustice.

Reforming the Army Corps of Engineers will be a difficult task for Congress. It involves restoring credibility and accountability to a Federal agency rocked by scandals and constrained by endlessly growing authorizations and a gloomy federal fiscal picture, and yet an agency that Wisconsin, and many other states across the country, have come to rely upon. From the Great Lakes to the mighty Mississippi, the Corps is involved in providing aid to navigation, environmental remediation, water control and a variety of other services in my state alone.

My office has strong working relationships with the Detroit, Rock Island, and St. Paul District Offices that service Wisconsin, and I want the fiscal and management cloud over the Corps to dissipate so that the Corps can continue to contribute to our environment and our economy.

This legislation evolved from my experience in seeking to offer an amendment to the Water Resources Development Act of 2000 to create independent review of Army Corps of Engineers' projects. In response to my initiative, the bill's managers, which included the former Senator from New Hampshire, Senator Bob Smith, and the senior Senator from Montana, Mr. Baucus, adopted an amendment as part of their managers' package to require a National Academy of Sciences study on the issue of peer review of Corps projects.

The bill I introduce today includes many provisions that were included in two bills, one of which I authored and the other I cosponsored, in the 107th Congress. It codifies the idea of independent review of the Corps, which was investigated through the 2000 Water Resources bill. It also provides a mechanism to speed up completion of construction for good Corps projects with large public benefits by deauthorizing low priority and economically wasteful projects.

I will note, however, that this is not the first time that the Congress has realized that the Corps needs to be reformed because of its association with pork projects. In 1836, a House Ways and Means Committee report discovered that at least 25 Corps projects were over budget. In its report, the Committee noted that Congress must ensure that the Corps institutes ``actual reform, in the further prosecution of public works.'' In 1902, Congress created a review board to determine whether Corps projects were justified. The review board was dismantled just over a decade ago, and the Corps is still linked with wasteful spending. Here we are, more than 100 years later, talking about the same issue.

The reality is that the underlying problem is not with the Corps, the problem is with Congress. All too often Members of Congress have seen Corps projects as a way to bring home the bacon, rather than ensuring that taxpayers get the most bang for their federal buck.

This bill puts forth bold, comprehensive reform measures. It modernizes the Corps project planning guidelines, which have not been updated since 1983. It requires the Corps to use sound science in estimating the costs and evaluating the needs for water resources projects. The bill clarifies that the national economic development and environmental protection are co-equal goals of the Corps. Furthermore, the Corps must use current discount rates when determining the costs and benefits of projects. Several Corps projects are justified using a discount rate formula established in 1974, not the current government- wide discount rate promulgated by the Office of Management and Budget. By using this outdated discount rate formula, the Corps often overestimates project benefits and underestimates project costs.

This legislation also requires that a water resource project's benefits must be 1.5 times greater than the costs to the taxpayer. According to a 2002 study of the Corps backlog of projects, at least 60 Corps projects, whose combined costs total $4.6 billion, do not meet this 1.5 to 1 benefit-cost ratio. Thus, this benefit-cost ratio will save the taxpayer billions of dollars. The bill also mandates Federal- local cost sharing of inland waterways, flood control, and future beach renourishment projects, and reduces the Federal cost burden of these projects.

While the bill assumes a flat 50 percent cost-share for flood control projects, my home state of Wisconsin has been on the forefront of responsible flood plain management and also happens to be home to the Association of State Flood Plain Managers. As Congress considers the issue of Corps reform and the Water Resources Development Act, I hope my colleagues will take a closer look at the issue of a sliding cost scale. We should explore the possibility of creating incentives for communities with cutting-edge flood plain management practices to reduce their local share for projects.

The bill requires independent review of Corps projects. The National Academy of Sciences, the General Accounting Office, and even the Inspector General of the Army agree that independent review is an essential step to assuring that each Corps project is economically justified. Independent review will apply to projects in the following circumstances: 1. the project has costs greater than $25 million, including mitigation costs; 2. the Governor of a state that is affected by the project requests a panel; 3. the head of a Federal agency charged with reviewing the project determines that the project is likely to have a significant adverse environmental or cultural impact; or 4. the Secretary of the Army determines that the project is controversial. Any party can request that the Secretary make a determination of whether the project is controversial.

This bill also creates a Director of Independent Review within the Office

of the Inspector General of the Department of the Army. The Director is responsible for empaneling experts to review projects. The Secretary is required to respond to the panel's report and explain the extent to which a final report addresses the panel's concerns. The panel report and the underlying data that the Corps uses to justify the project will be made available to the public.

The bill also requires strong environmental protection measures. The Corps is required to mitigate the environmental impacts of its projects in a variety of ways, including by avoiding damaging wetlands in the first place and either holding other lands or constructing wetlands elsewhere when it cannot avoid destroying them. The Corps requires private developers to meet this standard when they construct projects as a condition of receiving a federal permit, and I think the Federal Government should live up to the same standards. Too often, the Corps does not complete required mitigation and enhances environmental risks.

I feel very strongly that mitigation must be completed, that the true costs of mitigation should be accounted for in Corps projects, and that the public should be able to track the progress of mitigation projects. The bill requires the Corps to develop a detailed mitigation plan for each water resources project, and conduct monitoring to demonstrate that the mitigation is working. In addition, the concurrent mitigation requirements of this bill would actually reduce the total mitigation costs by ensuring the purchase of mitigation lands as soon as possible.

This bill streamlines the existing automatic deauthorization process. Estimates of the project backlog runs from $58 billion to $41 billion. Under the bill a project authorized for construction but never started is deauthorized if it is denied appropriations funds towards completion of construction for five straight years. In addition, a project that has begun construction but been denied appropriations funds towards completion for three straight years is deauthorized. The bill also preserves congressional prerogatives over setting the Corps' construction priorities by allowing Congress a chance to reauthorize any of these projects before they are automatically deauthorized. This process will be transparent to all interests, because the bill requires the Corps to make a list of projects in the construction backlog available to Congress and the public at large.

In the past decade, the Corps has routinely strayed from its mission of flood control, navigation, and environmental protection. This legislation also requires that the Corps stick with its primary missions and that any water project that does not have the Corps' primary mission of flood control, navigation, or environmental protection as its main objective will be deauthorized.

This legislation will bring out comprehensive revision of the project review and authorization procedures at the Army Corps of Engineers. My goals for the Corps are to increase transparency and accountability, to ensure fiscal responsibility, and to allow greater stakeholder involvement in their projects. I remain committed to these goals, and to seeing Corps Reform enacted as part of this Congress's Water Resources bill.

I feel that this bill is an important step down the road to a reformed Corps of Engineers. This bill establishes a framework to catch mistakes by Corps planners, deter any potential bad behavior by Corps officials to justify questionable projects, end old unjustified projects, and provide planners desperately needed support against the never ending pressure of project boosters. Those boosters, include congressional interests, which is why I believe that this body needs to champion reform--to end the perception that Corps projects are all pork and no substance.

I wish it were the case that the changes we are proposing today were not needed, but unfortunately, I see that there is need for this bill. I want to make sure that future Corps projects no longer fail to produce predicted benefits, stop costing the taxpayers more than the Corps estimated, do not have unanticipated environmental impacts, and are built in an environmentally compatible way. This bill will help the Corps do a better job, which is what the taxpayers and the environment deserve.

I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I want to relay a telephone number, a number that may not sound familiar but you can be sure is memorized by thousands of women across the country. 1-800-799-SAFE--the number for the National Domestic Violence Hotline. Each month, over 16,000 women and men call the National Domestic Violence Hotline. Open twenty-four hours a day, seven days a week, with a bilingual staff and a TTY-line for the hearing impaired, the National Domestic Violence Hotline provides immediate, informed and confidential assistance to those caught in family violence. Oftentimes, it is the first call a battered woman makes, even before calling the police or a friend.

The Hotline is located in Austin, TX, but answers telephone calls placed anywhere in the United States and the U.S. territories. A distressed caller is connected to a trained advocate who is able to provide crisis intervention counseling, help create a safety plan, directly connect the caller with a local shelter or provide a range of local referral information. Using a massive database listing more than 5,000 services nationally, one of 30 full or part-time advocates puts a caller in touch immediately with local programs offering shelter and direct care.

I want to share with my colleagues two real-life stories from women who have called the Hotline. One caller dialed the Hotline after her boyfriend pulled a gun and threatened to kill her if she left him. Fearing for her life, she fled with her two young children. They ran to a nearby strip mall where she called the Hotline. As she told a Hotline advocate her story, she watched her abuser search for her in every store in the mall. Once a local shelter was contacted, arrangements were made to rescue the woman and her children from their hiding spot in a back alley behind the restaurant.

An immigrant woman who spoke no English called from a community clinic. She had learned that for the past year her abusive husband had been raping their 15-year-old daughter. Her husband had no idea she was calling the Hotline. He had kept her so isolated on the ranch where they lived that she didn't even know her address. While the woman stayed on the line, an advocate contacted the sheriff's office and together they pieced together enough information to figure out her address. The sheriff made plans to confirm the child abuse at the daughter's school, after which the husband would be arrested immediately. After completing the exchange with the sheriff's office, the advocate contacted the nearest shelter and arranged to pick up the woman and her daughter at the clinic.

These are real women who we see every day at work, at the grocery store

and at the school parking lot whose lives have been dramatically changed, in part, by that first call to the National Domestic Violence Hotline. Created by the Violence Against Women Act, the Hotline answered its first call on February 21, 1996, and its one millionth call on August 4, 2003. In the past decade we've witnessed a sea of change in how Americans view domestic violence. It is no longer treated as a private, family matter, but as a public crime. As public awareness has grown--as the Hotline's telephone number is posted on bus billboards and websites, in school offices and doctor's waiting rooms-- there has been a dramatic increase in calls. Between 2000 and 2001 alone, call volume increased by 18.5 percent. In 2002, the Hotline answered almost 180,000 calls, an increase of 7.5 percent from the previous year. The Department of Defense recently requested that the Hotline accept calls from military personnel--a move that will certainly increase the call volume substantially.

While the majority of the Hotline's day-to-day operating costs are paid with Federal dollars designated in annual spending bills, funding has not kept pace with the growing call volume and the Hotline's technology and telecommunication needs. This year, the spending bill appropriated only three million dollars to the Hotline. Older equipment, coupled with increased usage, has set the Hotline up to experience frequent problems with the network, data corruption and the lurking threat of a crash in the entire system. The Hotline tries to answer almost 500 calls a day with old computers and servers. Because the system is outdated and the staff is stretched thin, over 26,000 calls last year went unanswered due to long hold times or busy signals.

We need to answer each and every one of the calls to the Hotline. Today I am launching an innovative and far-reaching solution to the Hotline's problems, the Connections Campaign. The Connections Campaign is a public/private partnership that teams up private telecommunication and technology companies with the Federal Government to solve the Hotline's crisis. Under the Connections Campaign, the same companies-- Microsoft, Sony, BellSouth, Verizon Wireless, IBM, Nortel Networks, Dell and others--that supply Americans with home computers, cell phones and telephone service are donating hardware and software to the Hotline. Items like mapping software, networked computers, servers, flat-screened monitors and telephone airtime are being pledged to the Hotline. This is just the beginning of a multi-year, multi-million dollar initiative to place the Hotline squarely in the twenty-first century.

On the public side of the partnership, I am proud to introduce the Domestic Violence Connections Campaign Act of 2004 which will provide a million dollars to train and assist the Hotline's advocates so that they may effectively use the improved equipment provided by the Connections Campaign. In addition, the Act creates a new research grant program to be administered by the Attorney General that will review and analyze data generated by the Hotline. Taking into consideration needs for caller confidentiality and security, researchers will study Hotline data to determine the trends, potential gaps in service and geographical areas of need. Within three years of enactment, researchers will release a comprehensive Hotline study to Congress and the Attorney General. Finally, my bill provides an $800,000 grant program for the Hotline to increase public awareness about domestic violence and the Hotline's services.

One hand clapping simply does not make enough noise. Federal, State and local government cannot always supply all the answers and resources to resolve our communities' pressing problems. Today's Connections Campaign recognizes that big problems warrant grand, collaborative solutions. Cooperation between the Federal Government and the private sector is critical to enhance the National Domestic Violence Hotline.

A cornerstone of the Violence Against Women Act was my conviction that ending domestic violence and sexual assault required a coordinated, community response. We worked hard to ensure that emergency room personnel, police officers, victim advocates, shelter directors and court clerks worked together to implement the many mandates of the Violence Against Women Act. The Connections Campaign is Act Two. We are now asking that the corporate community get actively involved to strengthen a key safety net for women and their families, the National Domestic Violence Hotline.

Today's legislation and the kick-off is just the beginning of what I envision to be a lasting connection between the Hotline and the technology and telecommunications community. I look forward to coming back to the Senate floor to inform my colleagues about the new computers, wireless headsets, upgraded software and other technology that could be provided to the Hotline through the Connections Campaign. In the meantime, let me close by commending and expressing my gratitude to Sheryl Cates, the director of the Hotline and her dedicated staff who are providing the first step to safe, new lives for millions of battered women. They are truly doing God's work.

I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I rise to introduce a bill to revitalize a loan program crucial to the growth of small businesses in this country, and therefore crucial to our country's economy. This bill, the ``Smart Business Loan Revitalization Act of 2004,'' provides improvements to the Small Business Administration's largest business loan program, the ``Section 7(a)'' program.

This program proves that a small amount of government backing can greatly enhance private-sector financing for small businesses, and that the economic benefits can reverberate throughout the economy at large. More than $46.6 billion in 7(a) loans have been provided to small businesses over the last five Fiscal Years. This financing has helped small businesses to create or retain nearly 2 million more jobs over this five-year period.

Today, we are losing thousands of American jobs to outsourcing and off-shore manufacturing. We measure net job increases in the ``few thousands.'' Given these circumstances, it is clearly to our advantage, and to the advantage

of the American people, to support improvements to any program that has already demonstrated an ability to create or retain nearly 400,000 American jobs a year.

Last year this program provided $11.2 billion in loans to small business owners and employees in towns and communities across America. This year, however, the SBA only requested a program size of $9.3 billion. The fact that the SBA received a larger appropriation than the $9.3 billion it requested is powerful testament to the popularity of this program among small businesses. The SBA received sufficient appropriations, $79 million, coupled with $22 million in carried-over funds, to allow for a $9.55 billion program.

Like last year, however, the demand for program funds in the first few months of Fiscal Year 2004 suggested that requests for the entire year would most likely exceed $11 billion. As a result, in January, 2004, the SBA shut the program down, and then reopened it with a diminished loan cap of $750,000--37.5 percent of the $2 million maximum previously available. Faced with these restrictions, small businesses have urged Congress and the Administration to make the program fully operational for the rest of 2004.

To this end, I have worked with a coalition of small businesses and lenders to construct a plan to improve the program for the remainder of this Fiscal Year. The plan would allow lenders to help alleviate the funding shortfall. It would benefit small businesses and lenders by allowing loans larger than $750,000, and by allowing loans with multiple participations.

The bill would achieve these goals in three ways. First, lenders would return to the SBA a fee of 0.25 percent (or one-quarter of one percent) of new loans under $150,000, a fee that lenders are currently permitted to retain. Lenders may only retain this fee for loans of $150,000 or less--for loans greater than that size, lenders must return the fee to the SBA, as they have been required to do since the inception of the program. This proposal was first made by the SBA, as part of a larger plan the SBA recently submitted to Congress.

Second, a lender fee on new loans would be increased from 0.25 percent, one-quarter of one percent, to 0.35 percent. Finally, lenders would be permitted to provide small businesses with financing packages that include a 7(a) loan portion and a non-7(a), a strictly commercial portion, if the lenders paid the normal fees on the 7(a) loan portion and a 0.50 percent fee on the non-7(a) portion. Prior to January 2004, the SBA permitted this type of financing, but without receiving any fee income for the non-7(a) portion, and without an upper limit on the total financing, which I have set at $4 million.

The ability of small businesses to receive loans larger than $750,000 is a prerequisite to reviving the American economy. These loans provide needed capital for significant purchases and development by small businesses. More 7(a) loans represent longer-term loans than similar products available in the private capital market, and this allows small businesses to repay their 7(a) loans more gradually. I applaud the SBA for its desire to make more small loans to entrepreneurs without large capital needs, but I also urge the SBA to remember those entrepreneurs and small businesses who need more financing to strengthen and grow their enterprise, and to hire more employees. After encouraging entrepreneurs to start new small businesses, we cannot afford to forget their small businesses, or profess an inability to assist them when they need additional financing to grow.

The benefits of this program are clear. It has the ability to help entrepreneurs to create jobs, to fulfill their dreams, and to support their families--all of this while building the kinds of energetic businesses our economy so desperately needs. The demands for this program is also clear. Small businesses have submitted more applications than the program could handle so far this year. The willingness of lenders to pay increased fees to meet the demand from small businesses for 7(a) loans is clear evidence the program works and remains attractive to lenders.

The question we must answer now is whether we are willing to respond to small businesses and lenders and implement a solution which they have asked for, and which promises dividends for all involved, or whether we will ignore their requests, and miss an opportunity to transform a loan program that sustains almost 400,000 jobs a year into an initiative capable of creating two, three, four or even five times that amount. I don't want to miss that opportunity, my constituents in Maine can't afford to miss that opportunity, and I don't believe that your constituents can either. Almost every company listed today on the American Stock Exchange began as a small business. In the short term, this bill may save American jobs. But in the long term, it may save the American economy.

I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, seven years ago, I introduced the Haitian Refugee Immigration Fairness Act of 1998 (HRIFA). I introduced HRIFA after Congress enacted the Nicaraguan Adjustment and Central American Relief Act (NACARA). NACARA enabled Nicaraguans and Cubans to become permanent residents and permitted many unsuccessful Central American and Eastern European asylum applicants to seek another form of immigration relief. At the time, Haitians were suffering brutal and widespread political persecution by a ruthless dictatorship. Yet lawmakers opted to exclude Haitian asylum seekers from the NACARA legislation.

HRIFA became law with bipartisan support and reversed this grave inequity in U.S. immigration law. It allowed Haitians who had fled political turmoil in their country an opportunity to adjust their status like the opportunity we granted to refuges from other countries. The legislation has been beneficial and nearly 11,000 Haitians have adjusted their status and become legal permanent residents of the United States. However HRIFA contained several flaws that undermine the original intent of the legislation. That is why today I am introducing the HRIFA Improvement Act of 2004. I would like to thank my friend Senator

Mike DeWine for taking the lead in co-sponsoring this bill and for his continued support and commitment to fairness in our immigration policy.

First, this legislation corrects an oversight that disqualified Haitian refugees who entered the country with falsified papers. Some Haitian refugees, like many who have fled repressive governments, used falsified documents to flee their country when it was impossible for them to get travel documents from their dictatorial government.

If you look at other immigration legislation, it is clear that the exclusion of Haitian refugees who came here with falsified documents is an oversight. NACARA allowed refugees from a long list of countries, including Guatemala, El Salvador, Romania, Hungary, Bulgaria, and a number of others, to adjust their status to legal permanent residence, even if they entered the country with fraudulent documents.

As result of this oversight, many families and up to 5,000 American children face the possible deportation of a spouse, father or mother who has worked for a decade or more to build a life and a family in the United States. There have been media reports, heart-rending stories, of parents facing the choice between forever leaving their American-born children in their safe communities and schools in the United States or taking them back to a strife-torn Haiti where their parents risk political violence and persecution.

I ask unanimous consent to include in the Record an Associated Press story from December 29, 2003, called ``Flaw in Law threatens Deportation for Haitian Refugees.'' The piece tells the story of Rigaud Rene, a Haitian political activist now living in Miami. Mr. Rene faces deportation because he fled Haiti in 1994 using doctored documents and is therefore not covered by HRIFA. Since coming here, Mr. Rene has learned English, held down a job and earned his GED degree. He also married and has a one and a half year old American-born son.

If Mr. Rene is deported, he will be forced to take his U.S. citizen son with him or leave him here without any means of support. It is a solomonic choice that Mr. Rene should not have to make, especially because his dilemma is the result of a simple oversight in the law.

The difference between the way we treat Haitians and the way we treat refugees from other nations is inconsistent and unfair. The elimination of this kind of inconsistency and unfairness was the primary motivation for the passage of HRIFA in 1998. Clearly, the exclusion of Haitians who entered with falsified documents was an oversight that must now be corrected.

The second purpose of the Improvement Act is to respond to another legislative oversight that left Haitian children and dependents unprotected from ``aging out'' of HRIFA eligibility. HRIFA allows children and unmarried dependents of approved applicants to adjust to legal permanent residency. However, the Bureau of Citizenship and Immigration Services has taken much longer than was expected to approve the many applicants who had eligible children and dependents when they applied. As a result, many of those who would have been eligible had their parents or guardians been approved earlier have now ``aged out'' of eligibility or gotten married.

Currently, these ``aged out'' individuals face the immediate risk of deportation. Their ineligibility is a result solely of administrative delays and is neither their fault nor the intent of HRIFA. The Improvement Act addresses this unforeseen injustice by permitting these individuals to apply for adjustment of status or move to have their cause reopened.

Finally, the HRIFA Improvement Act of 2004 also ensures fairness by extending the protection from deportation to applicants under this Act. This is consistent with the protection extended to applicants under the 1998 HRIFA legislation.

All those who come to the United States fleeing political persecution and violence deserve to be treated fairly and equally. This country is built on this principle of justice and we should give everyone, regardless of his or her national origin, an equal opportunity. That is what this legislation intends to do.