I 111th CONGRESS 1st Session H. R. 3723 IN THE HOUSE OF REPRESENTATIVES October 6, 2009 Mrs. Halvorson introduced the following bill; which was referred to the Committee on Small Business A BILL To amend the Small Business Act to improve the activities carried out under section 7(a) of such Act, and for other purposes.

1.

Short title

This Act may be cited as the Small Business Credit Expansion and Loan Markets Stabilization Act of 2009.

2.

Small lender outreach program

Section 7(a) of the Small Business Act (15 U.S.C. 636(a)) is amended by adding at the end the following: (34)

Small lender outreach program

The Administrator shall establish and carry out a program to provide support to regional, district, and branch offices of the Administration to assist small lenders, who do not participate in the Preferred Lenders Program, to participate in the programs under this subsection. .

3.

Rural lending outreach program

Section 7(a) of the Small Business Act (15 U.S.C. 636(a)), as amended by this Act, is further amended by adding at the end the following: (35)

Rural lending outreach program

(A)

In general

The Administrator shall establish and carry out a rural lending outreach program (hereinafter referred to in this paragraph as the program) to provide loans under this subsection in accordance with this paragraph. (B)

Maximum participation

A loan under the program shall include the maximum participation levels by the Administrator permitted for loans made under this subsection. (C)

Maximum loan amount

The maximum amount of a loan under the program shall be $250,000. (D)

Use of rural lenders

The program shall be carried out through lenders located in a rural area (as such term is defined under subsection (m)(11)(C)) or, if a small business concern located in a rural area does not have a lender located within 30 miles of the principal place of business of such concern, through any lender chosen by such concern that provides loans under this subsection. (E)

Time for approval

The Administrator shall approve or disapprove a loan under the program within 36 hours. (F)

Documentation

The program shall use abbreviated application and documentation requirements. (G)

Credit standards

Minimum credit standards, as the Administrator considers necessary to limit the rate of default on loans made under the program, shall apply. .

4.

Community Express Program made permanent

Section 7(a) of the Small Business Act (15 U.S.C. 636(a)), as amended by this Act, is further amended by adding at the end the following: (36)

Community Express Program

(A)

In general

The Administrator shall carry out a Community Express Program to provide loans under this subsection in accordance with this paragraph. (B)

Requirements

For a loan made under the Community Express Program, the following shall apply: (i)The loan shall be in an amount not exceeding $250,000. (ii)The loan shall be made to a small business concern the majority ownership interest of which is directly held by individuals the Administrator determines are, without regard to the geographic location of such individuals, women, members of qualified Indian tribes, socially or economically disadvantaged individuals, veterans, or members of the reserve components of the Armed Forces. (iii)The loan shall comply with the collateral policy of the Administration. (iv)The loan shall include terms requiring the lender to provide, at the expense of the lender, technical assistance to the borrower through the lender or a third-party provider. (v)The Administrator shall approve or disapprove the loan within 36 hours. .

5.

Increased veteran participation program made permanent

Section 7(a) of the Small Business Act (15 U.S.C. 636(a)), as amended by this Act, is further amended— (1)by redesignating the second paragraph (32), as added by section 208 of the Military Reservist and Veteran Small Business Reauthorization and Opportunity Act of 2008 (Public Law 110–186; 122 Stat. 631), as paragraph (33); and (2)in paragraph (33), as so redesignated by paragraph (1) of this section— (A)by striking pilot program each place it appears and inserting program; (B)by striking subparagraphs (C) and (F); and (C)by redesignating subparagraphs (D) and (E) as subparagraphs (C) and (D), respectively.

6.

Leasing policy

Section 7(a) of the Small Business Act (15 U.S.C. 636(a)), as amended by this Act, is further amended by striking paragraph (28) and inserting the following: (28)

Leasing

If a loan under this subsection is used to acquire or construct a facility, the assisted small business concern— (A)shall permanently occupy and use not less than 50 percent of the space in such facility; and (B)may, on a temporary or permanent basis, lease to others not more than 50 percent of the space in such facility. .

7.

National lender training program

Section 7(a) of the Small Business Act (15 U.S.C. 636(a)), as amended by this Act, is further amended by adding at the end the following: (37)

National lender training program

(A)

In general

The Administrator shall establish and carry out, through the regional offices of the Administration, a lender training program for new and existing lenders under this subsection with respect to the lending systems, policies, and procedures of the Administration. (B)

Fees

The Administrator shall charge a fee for the program established under subparagraph (A) to reduce the cost of such program to zero. (C)

Limitation

The program established under subparagraph (A) may not be carried out by contract with a nongovernmental entity. .

8.

Applications for repurchase of loans

Section 7(a) of the Small Business Act (15 U.S.C. 636(a)), as amended by this Act, is further amended by adding at the end the following: (38)

Applications for repurchase of loans

(A)

In general

Not later than 45 days after the date of the receipt of a claim from a lender for proper payment of the guaranteed portion of a loan under this subsection due to default, the Administrator shall make a final determination with respect to the approval or denial of such claim. (B)

Late determinations

If the Administrator does not make a final determination under subparagraph (A) in the time period specified in such subparagraph, the claim shall be approved and paid promptly. .

9.

Alternative size standard

(a)

In general

Section 3(a) of the Small Business Act (15 U.S.C. 632(a)) is amended by adding at the end the following: (5)In addition to any other size standard under this subsection, the Administrator shall establish and permit a lender making a loan under section 7(a) to use an alternative size standard. The alternative size standard shall be based on factors including the maximum tangible net worth and average net income of a business concern. . (b)

Applicability

Until the Administrator establishes under section 3(a)(5) of the Small Business Act, as added by subsection (a) of this section, an alternative size standard for use by a lender making a loan under section 7(a) of such Act, the alternative size standard in section 121.301(b) of title 13, Code of Federal Regulations, shall apply in such a case.

10.

Pilot program authority

Section 7(a) of the Small Business Act (15 U.S.C. 636(a)), as amended by this Act, is further amended by striking paragraph (25) and inserting the following: (25)

Limitation on conducting pilot projects

(A)

Limitation on number

Not more than 10 percent of the total number of loans guaranteed in any fiscal year under this subsection may be awarded as part of a pilot program. (B)

Dollar limitations

(i)

In general

With respect to any pilot program under this subsection established on or after the date of the enactment of the Small Business Credit Expansion and Loan Markets Stabilization Act of 2009, no loan shall be made under such program if such loan would result in the total amount of loans made during a fiscal year under all such programs to be in excess of 5 percent of the total amount of loans guaranteed in such fiscal year under this subsection. (ii)

Certain pre-existing programs

With respect to any pilot program under this subsection established before the date of the enactment of the Small Business Credit Expansion and Loan Markets Stabilization Act of 2009, no loan shall be made under such program if such loan would result in the total amount of loans made during a fiscal year under all such programs to be in excess of 10 percent of the total amount of loans guaranteed in such fiscal year under this subsection. (C)

Expiration

(i)

In general

Except as provided in clause (iii), the duration of any pilot program under this subsection may not exceed 3 years. (ii)

Designation as new program

For purposes of this subparagraph, a pilot program shall not be treated as a new pilot program solely on the basis of a modification or change in the pilot program, including the change of its name. (iii)

Existing programs

With respect to any pilot program in existence on the date of the enactment of the Small Business Credit Expansion and Loan Markets Stabilization Act of 2009, such program may continue in effect for a period not exceeding 3 years after such date without regard to the duration of such program before such date. (D)

Regulations

(i)

In general

With respect to each pilot program under this subsection, including each pilot program in existence on the date of the enactment of the Small Business Credit Expansion and Loan Markets Stabilization Act of 2009, the Administrator shall— (I)issue regulations for such program after providing notice in the Federal Register and an opportunity for comment; and (II)ensure that such regulations are published in the Code of Federal Regulations. (ii)

Pilot programs established after date of enactment

With respect to any pilot program established after the date of the enactment of the Small Business Credit Expansion and Loan Markets Stabilization Act of 2009, such program shall not take effect until the requirements under this subparagraph are satisfied. (E)

Repeal of authority to waive certain rules

(i)

In general

Notwithstanding section 120.3 of title 13, Code of Federal Regulations, the Administrator may not from time to time suspend, modify, or waive rules for a limited period of time to test new programs or ideas with respect to this subsection, unless such suspension, modification, or waiver is explicitly authorized by Act of Congress. (ii)

Existing pilot programs

Nothing under clause (i) may be construed to affect a pilot program in existence on the date of the enactment of the Small Business Credit Expansion and Loan Markets Stabilization Act of 2009. (F)

Pilot program

For purposes of this paragraph, the term pilot program means any lending program initiative, project, innovation, or other activity not specifically authorized by Act of Congress. .

11.

Loans to cooperatives

Section 7(a) of the Small Business Act (15 U.S.C. 636(a)), as amended by this Act, is further amended by adding at the end the following: (39)

Cooperatives

The Administration may provide loans under this subsection to any cooperative that— (A)is not organized as a tax exempt entity; (B)is engaged in a legal business activity; (C)obtains financial benefits for the cooperative and for the members of such cooperative; and (D)is eligible under applicable size standards of the Administration, including that any business entity that is a member of such cooperative is eligible under applicable size standards of the Administration. .

12.

Capital backstop program

Section 7(a) of the Small Business Act (15 U.S.C. 636(a)), as amended by this Act, is further amended by adding at the end the following: (40)

Capital backstop program

(A)

In general

The Administrator shall establish a process under which a small business concern may submit an application to the Administrator for the purpose of securing a loan under this subsection. With respect to such application, the Administrator shall collect all information necessary to determine the creditworthiness and repayment ability of an applicant and shall determine if such application meets basic eligibility and credit standards for a loan under this subsection. (B)

Participation of lenders

(i)

In general

The Administrator shall establish a process under which the Administrator makes available to lenders each loan application submitted and determined to meet basic eligibility and credit standards under subparagraph (A) for the purpose of such lenders originating, underwriting, closing, and servicing the loan for which the applicant applied. (ii)

Eligibility

Lenders are eligible to receive a loan application described in clause (i) if they participate in the programs established under this subsection. (iii)

Local lenders

The Administrator shall first make available a loan application described in clause (i) to lenders within 100 miles of the principal office of the loan applicant. (iv)

Preferred lenders

If a lender described in clause (iii) does not agree to originate, underwrite, close, and service the loan applied for within 5 business days of receiving a loan application described in clause (i), the Administrator shall subsequently make available such loan application to lenders in the Preferred Lenders Program under paragraph (2)(C)(ii) of this subsection. (v)

Authority of Administration to lend

If a lender described in clauses (iii) or (iv) does not agree to originate, underwrite, close, and service the loan applied for within 10 business days of receiving a loan application described in clause (i), the Administrator shall originate, underwrite, close, and service such loan. (C)

Asset sales

The Administrator shall offer to sell loans made by the Administrator under this paragraph. Such sales shall be made through the semi-annual public solicitation (in the Federal Register and in other media) of offers to purchase. The Administrator may contract with vendors for due diligence, asset valuation, and other services related to such sales. The Administrator may not sell any loan under this subparagraph for less than 90 percent of the net present value of the loan, as determined and certified by a qualified third party. (D)

Loans not sold

The Administrator shall maintain and service loans made by the Administrator under this paragraph that are not sold through the asset sales under this paragraph. (E)

Effective dates

This paragraph shall have effect on a date if— (i)such date occurs during a period that— (I)begins on the date the Bureau of Economic Analysis, or any successor organization, makes a determination that the gross domestic product of the United States has decreased for three consecutive quarters; and (II)ends on the date the Bureau of Economic Analysis, or any successor organization, makes a determination that the gross domestic product of the United States has increased for two consecutive quarters; and (ii)the number of loans provided under this subsection prior to such date in the fiscal year including such date is at least 30 percent less than the number of such loans provided prior to the same point in the previous fiscal year. (F)

Implementation

The Administrator shall establish a group of at least 250 individuals available to carry out activities under this paragraph on any date on which this paragraph has effect under subparagraph (E). The Administrator shall provide to such group the training necessary to carry out activities under this paragraph. (G)

Application of other law

Nothing in this paragraph shall be construed to exempt any activity of the Administrator under this paragraph from the Federal Credit Reform Act of 1990 (2 U.S.C. 661 et seq.). (H)

Authorization of appropriations

In addition to amounts made available to carry out this subsection, there are authorized to be appropriated such sums as may be necessary to carry out this paragraph. .

13.

Loans to finance goodwill

Section 7(a) of the Small Business Act (15 U.S.C. 636(a)), as amended by this Act, is further amended by adding at the end the following: (41)

Goodwill

The Administrator may not apply an application, processing, or approval standard to a loan for the purpose of financing goodwill under this subsection, unless such standard applies to all loans under this subsection. .

14.

Appellate process and ombudsman

The Small Business Act (15 U.S.C. 631 et seq.) is amended— (1)by redesignating section 44 as section 45; and (2)by inserting after section 43 the following:

44.

Appellate process and ombudsman

(a)

Appellate process

(1)

In general

Not later than 270 days after the date of the enactment of the Small Business Credit Expansion and Loan Markets Stabilization Act of 2009, the Administrator shall establish an independent appellate process within the Administration. The process shall be available to review material determinations made by the Administration that affect a lender or investment company that participates or is applying to participate in a program administered by the Administration. (2)

Review process

In establishing the independent appellate process under paragraph (1), The Administrator shall ensure that— (A)any appeal of a material determination by the Administration is heard and resulting recommendations are provided expeditiously; and (B)appropriate safeguards exist for protecting the appellant from retaliation by Administration employees. (3)

Comment period

Not later than 180 days after the date of the enactment of the Small Business Credit Expansion and Loan Markets Stabilization Act of 2009, the Administrator shall provide an opportunity for notice and comment on proposed guidelines for the establishment of an independent appellate process under this section. (b)

Agency Ombudsman

(1)

Establishment

Not later than 180 days after the date of the enactment of the Small Business Credit Expansion and Loan Markets Stabilization Act of 2009, the Administrator shall appoint an ombudsman. (2)

Duties

The ombudsman appointed in accordance with paragraph (1) shall— (A)act as a liaison between the Administration and any lender or investment company that participates or is applying to participate in a program administered by the Administration with respect to a problem such entity may have in dealing with the Administration resulting from a material determination made by the Administration; and (B)ensure that safeguards exist to encourage complainants to come forward and preserve confidentiality. (c)

Other authority

An individual carrying out the independent appellate process established under subsection (a) or the position of ombudsman established under subsection (b) is authorized to— (1)examine records and documents relating to a matter under review pursuant to such subsections; and (2)initiate the review of a matter under such subsections if such individual believes that Administration procedures have not been followed as intended with respect to such matter, without regard to whether an appeal or complaint has been made. (d)

Limitations

(1)

In general

An individual carrying out the independent appellate process established under subsection (a) or the position of ombudsman established under subsection (b) may not, as a result of the authority provided under this section— (A)make, change, or set aside a law, policy, or administrative decision; (B)make binding decisions or determine rights; (C)directly compel an entity to implement the recommendations of such individual; or (D)accept jurisdiction over an issue that is pending in a legal forum. (2)

Rule of construction

Activities carried out under this section may not be construed— (A)as a formal investigation, formal hearing, or binding decision; (B)as limiting any remedy or right of appeal; (C)as affecting any procedure concerning grievances, appeals, or administrative matters under law; or (D)as a substitute for an administrative or judicial proceeding. (e)

Report

Not later than one year after the date of the enactment of the Small Business Credit Expansion and Loan Markets Stabilization Act of 2009 and annually thereafter, the Administrator shall submit to the Committee on Small Business of the House of Representatives and the Committee on Small Business and Entrepreneurship of the Senate a report describing and providing the status of appeals made under subsection (a) and complaints made under subsection (b). (f)

Definitions

In this section, the following apply: (1)

Material determination

The term material determination includes determinations relating to— (A)applications for payment relating to a loan guarantee; and (B)the ability of an entity to participate in an Administration loan or investing program. (2)

Independent appellate process

The term independent appellate process means a review by an Administration official who does not directly or indirectly report to the Administration official who made the material determination under review.

.

15.

Extension of recovery and relief loan benefits

(a)

Fee reductions

Section 501 of title V of division A of the American Recovery and Reinvestment Act of 2009 (Public Law 111–5) is amended— (1)in subsection (a) by striking September 30, 2010 and inserting September 30, 2011; and (2)in subsection (c) by striking paragraph (2). (b)

Economic stimulus lending program for small businesses

Section 502(f) of title V of division A of the American Recovery and Reinvestment Act of 2009 (Public Law 111–5) is amended by striking the date 12 months after the date of enactment of this Act and inserting September 30, 2011.

16.

Reduced documentation for business stabilization loans

Section 506(a) of title V of division A of the American Recovery and Reinvestment Act of 2009 (Public Law 111–5) is amended by adding at the end the following: In carrying out such program, the Administrator shall establish and utilize a one-page application for loans under this section and shall authorize lenders to utilize the same documentation and procedural requirements for loans under this section as such lenders utilize for other loans of a similar size and type..

17.

Expanded eligibility for business stabilization loans

Section 506(c) of title V of division A of the American Recovery and Reinvestment Act of 2009 (Public Law 111–5) is amended by striking but shall not include and all that follows through enactment of this Act.

18.

Increased amount of business stabilization loans

Section 506(d) of title V of division A of the American Recovery and Reinvestment Act of 2009 (Public Law 111–5) is amended by striking $35,000 and inserting $50,000.

19.

Extension of business stabilization loans

Section 506(j) of title V of division A of the American Recovery and Reinvestment Act of 2009 (Public Law 111–5) is amended by striking September 30, 2010 and inserting September 30, 2011.

20.

SBA secondary market lending authority made permanent

Section 509 of title V of division A of the American Recovery and Reinvestment Act of 2009 (Public Law 111–5) is amended— (1)by striking subsection (e); and (2)by redesignating subsections (f), (h), and (i) as subsections (e), (f), and (g), respectively.

21.

SBA secondary market lending authority expanded

Section 509 of title V of division A of the American Recovery and Reinvestment Act of 2009 (Public Law 111–5), as amended by this Act, is further amended— (1)in subsection (c)(1) by adding at the end the following: Such process shall include the designation of each lender participating in a program under section 7(a) of the Small Business Act as a Systematically Important Secondary Market Broker-Dealer for purposes of this section.; and (2)in subsection (e), as so redesignated by section 20 of this Act, by adding at the end the following: To the extent that the cost of an elimination or reduction of fees is offset by appropriations, the Administrator shall in lieu of the fee otherwise applicable under this subsection collect no fee or reduce fees to the maximum extent possible..

22.

Increased loan limits

Section 7(a) of the Small Business Act (15 U.S.C. 636(a)), as amended by this Act, is further amended— (1)in paragraph (2)(A)— (A)in clause (i)— (i)by inserting after $150,000 the following: and is less than or equal to $2,000,000; and (ii)by striking or at the end; (B)in clause (ii) by striking the period at the end and inserting ; or; and (C)by adding at the end the following: (iii)50 percent of the balance of the financing outstanding at the time of disbursement of the loan, if such balance exceeds $2,000,000. ; and (2)in paragraph (3)(A) by striking $2,000,000 and inserting $3,000,000.

23.

Real estate appraisals

Section 7(a)(29) of the Small Business Act (15 U.S.C. 636(a)(29)) is amended— (1)in the matter preceding subparagraph (A) by striking a State licensed or certified appraiser and inserting an appraiser licensed or certified by the State in which such property is located; (2)in subparagraph (A) by striking $250,000 and inserting $400,000; and (3)in subparagraph (B) by striking $250,000 and inserting $400,000.

24.

Additional support for Express Loan Program

Section 7(a)(18)(B) of the Small Business Act (15 U.S.C. 636(a)(18)(B)) is amended by adding after under subparagraph (A)(i) the following: , except that a lender making a loan under paragraph (31) may not retain any percentage of a fee collected under such subparagraph.

25.

Authorization of appropriations

Section 20 of the Small Business Act (15 U.S.C. 631 note) is amended by inserting after subsection (e) the following: (f)

Fiscal years 2010 and 2011

(1)

Program levels

For the programs authorized by this Act, in each of fiscal years 2010 and 2011 commitments for general business loans authorized under section 7(a) may not exceed $20,000,000,000. (2)

Authorization of appropriations

There are authorized to be appropriated such sums as may be necessary to carry out paragraph (1). .

26.

Regulations

After an opportunity for notice and comment, but not later than 180 days after the date of the enactment of this Act, the Administrator shall issue regulations to carry out this Act and the amendments made by this Act.