I 111th CONGRESS 2d Session H. R. 5302 IN THE HOUSE OF REPRESENTATIVES May 13, 2010 Mr. Peters (for himself, Mr. Levin, Mr. Dingell, Mr. Maffei, Mr. Sarbanes, Mr. Reyes, Ms. Norton, Mr. Schauer, Mr. Pascrell, Mr. Stupak, Ms. Tsongas, Mr. Watt, Mr. Tonko, Mr. Etheridge, Ms. Linda T. Sánchez of California, Mr. Adler of New Jersey, Mr. Kanjorski, Mr. Moore of Kansas, Mr. Michaud, Ms. Sutton, Ms. Bean, Mr. Lipinski, Ms. Moore of Wisconsin, Mr. Loebsack, Mr. Kildee, and Mr. Miller of North Carolina) introduced the following bill; which was referred to the Committee on Financial Services A BILL To establish the State Small Business Credit Initiative, and for other purposes.

1.

Short title

This Act may be cited as the State Small Business Credit Initiative Act of 2010.

2.

Definitions

For purposes of this Act, the following definitions shall apply: (1)

Appropriate Federal banking agency

The term appropriate Federal banking agency— (A)has the same meaning as in section 3 of the Federal Deposit Insurance Act; and (B)includes the National Credit Union Administration Board in the case of any credit union the deposits of which are insured in accordance with the Federal Credit Union Act. (2)

Enrolled loan

The term enrolled loan means a loan made by a financial institution lender that is enrolled by a participating State in an approved State capital access program in accordance with this Act. (3)

Federal contribution

The term Federal contribution means the portion of the contribution made by a participating State to, or for the account of, an approved State program that is made with Federal funds allocated to the State by the Secretary under section 3. (4)

Financial institution

The term financial institution means any insured depository institution, insured credit union, or community development financial institution, as those terms are each defined in section 103 of the Riegle Community Development and Regulatory Improvement Act of 1994. (5)

Participating state

The term participating State means any State that has been approved for participation in the Program under section 4. (6)

Program

The term Program means the State Small Business Credit Initiative established under this Act. (7)

Qualifying loan or swap funding facility

The term qualifying loan or swap funding facility means a contractual arrangement between a participating State and a private financial entity under which— (A)the participating State delivers funds to the entity as collateral; (B)the entity provides funding from the arrangement back to the participating State; and (C)the full amount of resulting funding from the arrangement, less any fees and other costs of the arrangement, is contributed to, or for the account of, an approved State program. (8)

Reserve fund

The term reserve fund means a fund, established by a participating State, dedicated to a particular financial institution lender, for the purposes of— (A)depositing all required premium charges paid by the financial institution lender and by each borrower receiving a loan under an approved State program from that financial institution lender; (B)depositing contributions made by the participating State, including State contributions made with Federal contributions; and (C)covering losses on enrolled loans by disbursing accumulated funds. (9)

State

The term State means— (A)a State of the United States; (B)the District of Columbia; (C)when designated by a State of the United States, a political subdivision of that State that the Secretary determines has the capacity to participate in the Program; and (D)under the circumstances described in section 4(d), a municipality of a State of the United States to which the Secretary has given a special permission under section 4(d). (10)

State capital access program

The term State capital access program means a program of a State that— (A)uses public resources to promote private access to credit; and (B)meets the eligibility criteria in section 5(c). (11)

State other credit support program

The term State other credit support program — (A)means a program of a State that— (i)uses public resources to promote private access to credit; (ii)is not a State capital access program; and (iii)meets the eligibility criteria in section 6(c); and (B)includes, collateral support programs, loan participation programs, and credit guarantee programs. (12)

State program

The term State program means a State capital access program or a State other credit support program. (13)

Secretary

The term Secretary means the Secretary of the Treasury.

3.

Federal funds allocated to States

(a)

Program established; purpose

There is established the State Small Business Credit Initiative (Program), to be administered by the Secretary. Under the Program, the Secretary shall allocate Federal funds to participating States and make the allocated funds available to the participating States as provided in this section for the uses described in this section. (b)

Allocation formula

(1)

In general

Not later than 30 days after the date of enactment of this Act, the Secretary shall allocate Federal funds to participating States so that each State is eligible to receive an amount equal to the average of the respective amounts that the State— (A)would receive under the 2009 Allocation; and (B)would receive under the 2010 Allocation. (2)

2009 Allocation formula

(A)

In general

The Secretary shall determine the 2009 Allocation by allocating Federal funds among the States in the proportion that each such State’s 2008 State employment decline bears to the aggregate of the 2008 State employment declines for all States. (B)

Minimum allocation

The Secretary shall adjust the allocations under subparagraph (A) for each State to the extent necessary to ensure that no State receives less than 0.9 percent of the Federal funds. (C)

2008 State employment decline defined

For purposes of this paragraph and with respect to a State, the term 2008 State employment decline means the excess (if any) of— (i)the number of individuals employed in such State determined for December 2007; over (ii)the number of individuals employed in such State determined for December 2008. (3)

2010 Allocation formula

(A)

In general

The Secretary shall determine the 2010 Allocation by allocating Federal funds among the States in the proportion that each such State’s 2009 unemployment number bears to the aggregate of the 2009 unemployment numbers for all of the States. (B)

Minimum allocation

The Secretary shall adjust the allocations under subparagraph (A) for each State to the extent necessary to ensure that no State receives less than 0.9 percent of the Federal funds. (C)

2009 unemployment number defined

For purposes of this paragraph and with respect to a State, the term 2009 unemployment number means the number of individuals within such State who were determined to be unemployed by the Bureau of Labor Statistics for December 2009. (c)

Availability of allocated amount

The amount allocated by the Secretary to each participating State under subsection (b) shall be made available to the State as follows: (1)

Allocated amount generally to be available to State in one-thirds

Except as provided in paragraph (2)— (A)the Secretary shall apportion the participating State's allocated amount into one-thirds; (B)the Secretary shall transfer to the participating State the first one-third when the Secretary approves the State for participation under section 4; and (C)the Secretary shall transfer to the participating State each successive one-third when the State has certified to the Secretary that it has expended, transferred, or obligated 80 percent of the last transferred one-third for Federal contributions to, or for the account of, State programs. The Secretary may withhold the transfer of any successive one-third pending results of a financial audit.(2)

Exception

The Secretary may, in the Secretary's discretion, transfer the full amount of the participating State's allocated amount to the State in a single transfer if the participating State applies to the Secretary for approval to use the full amount of the allocation as collateral for a qualifying loan or swap funding facility. (3)

Transferred amounts

Each amount transferred to a participating State under this section shall remain available to the State until used by the State as permitted under paragraph (4). (4)

Use of transferred funds

Each participating State may use funds transferred to it under this section only— (A)for making Federal contributions to, or for the account of, an approved State program; (B)as collateral for a qualifying loan or swap funding facility; (C)in the case of the first one-third transferred, for paying administrative costs incurred by the State in implementing an approved State program in an amount not to exceed 5 percent of that first one-third; or (D)in the case of each successive one-third transferred, for paying administrative costs incurred by the State in implementing an approved State program in an amount not to exceed 3 percent of that successive one-third. (5)

Termination of availability of amounts not transferred within 2 years of participation

Any portion of a participating State's allocated amount that has not been transferred to the State under this section by the end of the 2-year period beginning on the date that the Secretary approves the State for participation may be deemed by the Secretary to be no longer allocated to the State and no longer available to the State and shall be returned to the General Fund. (6)

Definitions

For purposes of this section— (A)the term allocated amount means the total amount of Federal funds allocated by the Secretary under subsection (b) to the participating State; and (B)the term one-third means— (i)in the case of the first and second one-thirds, an amount equal to 33 percent of a participating State’s allocated amount; and (ii)in the case of the last one-third, an amount equal to 34 percent of a participating State's allocated amount.

4.

Approving States for participation

(a)

Application

Any State may apply to the Secretary for approval to be a participating State under the Program and to be eligible for an allocation of Federal funds under the Program. (b)

General approval criteria

The Secretary shall approve a State to be a participating State, if— (1)a specific department, agency, or political subdivision of the State has been designated to implement a State program and participate in the Program; (2)all legal actions necessary to enable such designated department, agency, or political subdivision to implement a State program and participate in the Program have been accomplished; (3)the State has filed an application with the Secretary for approval of a State capital access program under section 5 or approval as a State other credit support program under section 6, in each case within the time period provided in the respective section; and (4)the State and the Secretary have executed an allocation agreement that— (A)conforms to the requirements of this Act; (B)ensures that the State program complies with such national standards as are established by the Secretary under section 9(a)(2); (C)sets forth internal control, compliance, and reporting requirements as established by the Secretary, and such other terms and conditions necessary to carry out the purposes of this Act, including an agreement by the State to allow the Secretary to audit State programs; (D)requires that the State program be fully positioned, within 90 days of the State’s execution of the allocation agreement with the Secretary, to act on providing the kind of credit support that the State program was established to provide; and (E)includes an agreement by the State to deliver to the Secretary, and update annually, a schedule describing how the State intends to apportion among its State programs the Federal funds allocated to the State. (c)

Contractual arrangements for implementation of State programs

A State may be approved to be a participating State, and be eligible for an allocation of Federal funds under the Program, if the State has contractual arrangements for the implementation and administration of its State program with— (1)an existing, approved State program administered by another State; or (2)an authorized agent of, or entity supervised by, the State, including for-profit and not-for-profit entities. (d)

Special permission

(1)

Circumstances when a municipality may apply directly

If a State does not, within 60 days after the date of enactment of this Act, file with the Secretary a notice of its intent to apply for approval by the Secretary of a State program or within 9 months after the date of enactment of this Act, file with the Secretary a complete application for approval of a State program, the Secretary may grant to municipalities of that State a special permission that will allow them to apply directly to the Secretary without the State for approval to be participating municipalities. (2)

Timing requirements applicable to municipalities applying directly

To qualify for the special permission, a municipality of a State must, within 12 months after the date of enactment of this Act, file with the Secretary a complete application for approval by the Secretary of a State program. (3)

Notices of intent and applications from more than 1 municipality

A municipality of a State may combine with 1 or more other municipalities of that State to file a joint notice of intent to file and a joint application. (4)

Approval criteria

The general approval criteria in paragraphs (2) and (4) of section 4(b) will apply. (5)

Allocation to municipalities

(A)

If more than 3

If more than 3 municipalities, or combination of municipalities as provided in paragraph (3), of a State apply for approval by the Secretary to be participating municipalities under this subsection, and the applications meet the approval criteria in paragraph (4), the Secretary shall allocate Federal funds to the 3 municipalities with the largest populations. (B)

If 3 or fewer

If 3 or fewer municipalities, or combination of municipalities as provided in paragraph (3), of a State apply for approval by the Secretary to be participating municipalities under this subsection, and the applications meet the approval criteria in paragraph (4), the Secretary shall allocate Federal funds to each applicant municipality or combination of municipalities. (6)

Apportionment of allocated amount among participating municipalities

If the Secretary approves municipalities to be participating municipalities under this subsection, the Secretary shall apportion the full amount of the Federal funds that are allocated to that State to municipalities that are approved under this subsection in amounts proportionate to the population of those municipalities, based on the most recent available decennial Census. (7)

Approving State programs for municipalities

If the Secretary approves municipalities to be participating municipalities under this subsection, the Secretary shall take into account the additional considerations in section 6(d) in making the determination under section 5 or 6 that the State program or programs to be implemented by the participating municipalities, including a State capital access program, is eligible for Federal contributions to, or for the account of, the State program.

5.

Approving State capital access programs

(a)

Application

A participating State that establishes a new, or has an existing, State capital access program that meets the eligibility criteria in subsection (c) may apply to Secretary to have the State capital access program approved as eligible for Federal contributions to the reserve fund. (b)

Approval

The Secretary shall approve such State capital access program as eligible for Federal contributions to the reserve fund if— (1)within 60 days after the date of enactment of this Act, the State has filed with the Secretary a notice of intent to apply for approval by the Secretary of a State capital access program; (2)within 9 months after the date of enactment of this Act, the State has filed with the Secretary a complete application for approval by the Secretary of a capital access program; (3)the State satisfies the requirements of subsections (a) and (b) of section 4; and (4)the State capital access program meets the eligibility criteria in subsection (c). (c)

Eligibility criteria for State capital access programs

For a State capital access program to be approved under this section, it must be a program of the State that— (1)provides portfolio insurance for business loans based on a separate loan-loss reserve fund for each financial institution; (2)requires insurance premiums to be paid by the financial institution lenders and by the business borrowers to the reserve fund to have their loans enrolled in the reserve fund; (3)provides for contributions to be made by the State to the reserve fund in amounts at least equal to the sum of the amount of the insurance premium charges paid by the borrower and the financial institution to the reserve fund for any newly enrolled loan; and (4)provides its portfolio insurance solely for loans that meet the following requirements: (A)the borrower has 500 employees or less at the time that the loan is enrolled in the Program; and (B)the loan amount does not exceed $5,000,000. (d)

Federal contributions to approved State capital access programs

A State capital access program approved under this section will be eligible for receiving Federal contributions to the reserve fund in an amount equal to the sum of the amount of the insurance premium charges paid by the borrowers and by the financial institution to the reserve fund for loans that meet the requirements in subsection (c)(4). A participating State may use the Federal contribution to make its contribution to the reserve fund of an approved State capital access program. (e)

Minimum program requirements for State capital access programs

The Secretary shall, by regulation or other guidance, prescribe Program requirements that meet the following minimum requirements. (1)

Experience and capacity

The participating State shall determine for each financial institution that participates in the State capital access program, after consultation with the appropriate Federal banking agency or, in the case of a financial institution that is a non-depository community development financial institution, the Community Development Financial Institution Fund, that the financial institution has sufficient commercial lending experience and financial and managerial capacity to participate in the approved State capital access program. The determination by the State shall not be reviewable by the Secretary. (2)

Investment authority

Subject to applicable State law, the participating State may invest, or cause to be invested, funds held in a reserve fund by establishing a deposit account at the financial institution lender in the name of the participating State. In the event that funds in the reserve fund are not deposited in such an account, such funds shall be invested in a form that the participating State determines is safe and liquid. (3)

Loan terms and conditions to be determined by agreement

A loan to be filed for enrollment in an approved State capital access program may be made with such interest rate, fees, and other terms and conditions, and the loan may be enrolled in the approved State capital access program and claims may be filed and paid, as agreed upon by the financial institution lender and the borrower, consistent with applicable law. (4)

Lender capital at-risk

A loan to be filed for enrollment in the State capital access program must require the financial institution lender to have a meaningful amount of its own capital resources at risk in the loan. (5)

Premium charges minimum and maximum amounts

The insurance premium charges payable to the reserve fund by the borrower and the financial institution lender shall be prescribed by the financial institution lender, within minimum and maximum limits that require that the sum of the insurance premium charges paid in connection with a loan by the borrower and the financial institution lender may not be less than 2 percent nor more than 7 percent of the amount of the loan enrolled in the approved State capital access program. (6)

State contributions

In enrolling a loan in an approved State capital access program, the participating State may make a contribution to the reserve fund to supplement Federal contributions made under this Program. (7)

Loan purpose

(A)

Particular loan purpose requirements and prohibitions

In connection with the filing of a loan for enrollment in an approved State capital access program, the financial institution lender— (i)shall obtain an assurance from each borrower that— (I)the proceeds of the loan will be used for a business purpose; (II)the loan will not be used to finance such business activities as the Secretary, by regulation, may proscribe as prohibited loan purposes for enrollment in an approved State capital access program; and (III)the borrower is not— (aa)an executive officer, director, or principal shareholder of the financial institution lender; (bb)a member of the immediate family of an executive officer, director, or principal shareholder of the financial institution lender; or (cc)a related interest of any such executive officer, director, principal shareholder, or member of the immediate family; (ii)shall provide assurances to the participating State that the loan has not been made in order to place under the protection of the approved State capital access program prior debt that is not covered under the approved State capital access program and that is or was owed by the borrower to the financial institution lender or to an affiliate of the financial institution lender; (iii)shall not allow the enrollment of a loan to a borrower that is a refinancing of a loan previously made to that borrower by the financial institution lender or an affiliate of the financial institution lender; and (iv)may include additional restrictions on the eligibility of loans or borrowers that are not inconsistent with the provisions and purposes of this Act, including compliance with all applicable Federal and State laws, regulations, ordinances, and Executive orders. (B)

Definitions

For purposes of this subsection, the terms executive officer, director, principal shareholder, immediate family, and related interest refer to the same relationship to a financial institution lender as the relationship described in part 215 of title 12 of the Code of Federal Regulations, or any successor to such part.

6.

Approving collateral support and other innovative credit access and guarantee initiatives for small businesses and manufacturers

(a)

Application

A participating State that establishes a new, or has an existing, credit support program that meets the eligibility criteria in subsection (c) may apply to the Secretary to have the State other credit support program approved as eligible for Federal contributions to, or for the account of, the State program. (b)

Approval

The Secretary shall approve such State other credit support program as eligible for Federal contributions to, or for the account of, the program if— (1)the Secretary determines that the State satisfies the requirements of paragraphs (1) through (3) of subsection 5(b); (2)the Secretary determines that the State other credit support program meets the eligibility criteria in subsection (c); (3)the Secretary determines the State other credit support program to be eligible based on the additional considerations in subsection (d); and (4)within 9 months after the date of enactment of this Act, the State has filed with Treasury a complete application for Treasury approval. (c)

Eligibility criteria for State other credit support programs

For a State other credit support program to be approved under this section, it must be a program of the State that— (1)can demonstrate that, at a minimum, 1 dollar of public investment by the State program will cause and result in 1 dollar of new private credit; (2)can demonstrate a reasonable expectation that, when considered with all other State programs of the State, such State programs together have the ability to use amounts of new Federal contributions to, or for the account of, all such programs in the State to cause and result in amounts of new small business lending at least 10 times the new Federal contribution amount; (3)for those State other credit support programs that provide their credit support through 1 or more financial institution lenders, requires the financial institution lenders to have a meaningful amount of their own capital resources at risk in their small business lending; and (4)extends credit support that meets the following requirements: (A)targets an average borrower size of 500 employees or less; (B)does not extend credit support to borrowers that have more than 750 employees; (C)targets support towards loans with an average principal amount of $5,000,000 or less; and (D)does not extend credit support to loans that exceed a principal amount of $20,000,000. (d)

Additional considerations

In making a determination that a State other credit support program is eligible for Federal contributions to, or for the account of, the State program, the Secretary shall take into account the following additional considerations: (1)the anticipated benefits to the State, its businesses, and its residents to be derived from the Federal contributions to, or for the account of, the approved State other credit support program, including the extent to which resulting small business lending will expand economic opportunities; (2)the operational capacity, skills, and experience of the management team of the State other credit support program; (3)the capacity of the State other credit support program to manage increases in the volume of its small business lending; (4)the internal accounting and administrative controls systems of the State other credit support program, and the extent to which they can provide reasonable assurance that funds of the State program are safeguarded against waste, loss, unauthorized use, or misappropriation; and (5)the soundness of the program design and implementation plan of the State other credit support program. (e)

Federal contributions to approved State other credit support programs

A State other credit support program approved under this section will be eligible for receiving Federal contributions to, or for the account of, the State program in an amount consistent with the schedule describing the apportionment of allocated Federal funds among State programs delivered by the State to the Secretary under the allocation agreement. (f)

Minimum program requirements for State other credit support programs

(1)

Fund to prescribe

The Secretary shall, by regulation or other guidance, prescribe Program requirements for approved State other credit support programs. (2)

Considerations for fund

In prescribing minimum Program requirements for approved State other credit support programs, the Secretary shall take into consideration, to the extent the Secretary determines applicable and appropriate, the minimum Program requirements for approved State capital access programs in section 5(e).

7.

Reports

(a)

Quarterly use-of-Funds report

(1)

In general

Not later than 30 days after the beginning of each calendar quarter, beginning after the first full calendar quarter to occur after the date the Secretary approves a State for participation, the participating State shall submit to the Secretary a report on the use of Federal funding by the participating State during the previous calendar quarter. (2)

Report contents

The report shall— (A)indicate the total amount of Federal funding used by the participating State; (B)include a certification by the participating State that— (i)the information provided in accordance with subparagraph (A) is accurate; (ii)funds continue to be available and legally committed to contributions by the State to, or for the account of, approved State programs, less any amount that has been contributed by the State to, or for the account of, approved State programs subsequent to the State being approved for participation in the Program; and (iii)the participating State is implementing its approved State program or programs in accordance with this Act and regulations issued pursuant to section 10. (b)

Annual report

Not later than March 31 of each year, beginning March 31, 2011, each participating State shall submit to the Secretary an annual report that shall include the following information: (1)The number of borrowers that received new loans originated under the approved State program or programs after the State program was approved as eligible for Federal contributions. (2)The total amount of such new loans. (3)Breakdowns by industry type, loan size, annual sales, and number of employees of the borrowers that received such new loans. (4)The zip code of each borrower that received such a new loan. (5)Such other data that the Secretary, in the Secretary’s sole discretion, may require to carry out the purposes of the Program. (c)

Form

The reports and data filed pursuant to subsections (a) and (b) shall be in such form as the Secretary, in the Secretary's sole discretion, may require. (d)

Termination of reporting requirements

The requirement to submit reports under subsections (a) and (b) shall terminate for a participating State with the submission of the completed reports due on the first March 31 to occur after 5 complete 12-month periods after the State is approved by the Secretary to be a participating State.

8.

Remedies for State program termination or failures

(a)

Remedies

(1)

In general

If any of the events listed in paragraph (2) occur, the Secretary, in the Secretary's discretion, may— (A)reduce the amount of Federal funds allocated to the State under the Program; or (B)terminate any further transfers of allocated amounts that have not yet been transferred to the State. (2)

Causal events

The events referred to in paragraph (1) are— (A)termination by a participating State of its participation in the Program; (B)failure on the part of a participating State to submit complete reports under section 7 on a timely basis; or (C)noncompliance by the State with the terms of the allocation agreement between the Secretary and the State. (b)

De-Allocated amounts To be re-Allocated

If, after 13 months, any portion of the amount of Federal funds allocated to a participating State is deemed by the Secretary to be no longer allocated to the State after actions taken by the Secretary under subsection (a)(1), the Secretary shall re-allocate that portion among the participating States, excluding the State whose allocated funds were deemed to be no longer allocated, as provided in section 3(b).

9.

Implementation and administration

(a)

General authorities and duties

The Secretary shall— (1)consult with the Administrator of the Small Business Administration and the appropriate Federal banking agencies on the administration of the Program; (2)establish minimum national standards for approved State programs; (3)provide technical assistance to States for starting State programs and generally disseminate best practices; (4)manage, administer, and perform necessary program integrity functions for the Program; and (5)ensure adequate oversight of the approved State programs, including oversight of the cash flows, performance, and compliance of each approved State program. (b)

Funding

There are hereby appropriated to the Secretary, out of funds in the Treasury not otherwise appropriated, $2,000,000,000 to carry out the Program, including to pay reasonable costs of administering the Program. In administering the Program, the Secretary is authorized to use the staff and resources of the Department. (c)

Expedited contracting

During the 1-year period beginning on the date of enactment of this Act, the Secretary may enter into contracts without regard to any other provision of law regarding public contracts, for purposes of carrying out this Act. (d)

Termination of secretary's program administration functions

The authorities and duties of the Secretary to implement and administer the Program shall terminate at the end of the 7-year period beginning on the date of enactment of this Act.

10.

Regulations

The Secretary, in consultation with the Administrator of the Small Business Administration, shall issue such regulations and other guidance as Secretary determines necessary or appropriate to implement this Act including, but not limited to, to define terms, to establish compliance and reporting requirements, and such other terms and conditions necessary to carry out the purposes of this Act.