[Senate Hearing 118-91]
[From the U.S. Government Publishing Office]


                                                         S. Hrg. 118-91

 OVERSIGHT OF SBA'S IMPLEMENTATION OF FINAL RULES TO EXPAND ACCESS TO 
                                CAPITAL

=======================================================================

                                HEARING

                               BEFORE THE

                      COMMITTEE ON SMALL BUSINESS
                          AND ENTREPRENEURSHIP

                                 OF THE

                          UNITED STATES SENATE

                    ONE HUNDRED EIGHTEENTH CONGRESS

                             FIRST SESSION
                               __________

                             APRIL 26, 2023
                               __________

      Printed for the use of the Committee on Small Business and 
                            Entrepreneurship
                            
                            
                  [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]                            


        Available via the World Wide Web: http://www.govinfo.gov
        
                               __________

                    U.S. GOVERNMENT PUBLISHING OFFICE
                    
53-225                    WASHINGTON : 2024           
        
        
            COMMITTEE ON SMALL BUSINESS AND ENTREPRENEURSHIP
                    ONE HUNDRED EIGHTEENTH CONGRESS

                              ----------                              

                 BENJAMIN L. CARDIN, Maryland, Chairman
                    JONI ERNST, Iowa, Ranking Member
MARIA CANTWELL, Washington           MARCO RUBIO, Florida
JEANNE SHAHEEN, New Hampshire        JAMES E. RISCH, Idaho
EDWARD J. MARKEY, Massachusetts      RAND PAUL, Kentucky
CORY A. BOOKER, New Jersey           TIM SCOTT, South Carolina
CHRISTOPHER A. COONS, Delaware       TODD YOUNG, Indiana
MAZIE HIRONO, Hawaii                 JOHN KENNEDY, Louisiana
TAMMY DUCKWORTH, Illinois            JOSH HAWLEY, Missouri
JACKY ROSEN, Nevada                  TED BUDD, North Carolina
JOHN W. HICKENLOOPER, Colorado
                 Sean Moore, Democratic Staff Director
                Meredith West, Republican Staff Director

                            C O N T E N T S

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                                                                   Page

                           OPENING STATEMENTS

Benjamin L. Cardin, Chairman, U.S. Senator from Maryland.........     1
Joni Ernst, Ranking Member, U.S. Senator from Iowa...............     4

                               WITNESSES

Mr. Patrick Kelley, Associate Administrator, Office of Capital 
  Access, U.S. Small Business Administration.....................     5
    Prepared Statement...........................................     8
Mr. Sheldon Shoemaker, Deputy Inspector General, Office of 
  Inspector General, U.S. Small Business Administration..........    11
    Prepared Statement...........................................    13
Ms. Hilda Kennedy, Founder/President, AmPac Business Capital.....    43
    Prepared Statement...........................................    45
Mr. Chris Pilkerton, Chief Legal Officer, Accion Opportunity Fund    52
    Prepared Statement...........................................    55

              ADDITIONAL LETTERS/STATEMENTS FOR THE RECORD

National Association of Development Companies (NADCO)
    Letter dated April 26, 2023..................................    62
National Association of Federally-Insured Credit Unions (NAFCU)
    Letter dated April 25, 2023..................................    63
Senator Marco Rubio
    Statement....................................................    65

                        QUESTIONS FOR THE RECORD

Mr. Patrick Kelley
    Responses to questions submitted by Chairman Cardin, Ranking 
      Member Ernst, Senators Hickenlooper, Risch, Young and 
      Kennedy....................................................    67
Mr. Sheldon Shoemaker
    Responses to questions submitted by Ranking Member Ernst and 
      Senator Risch..............................................    88
Ms. Hilda Kennedy
    Responses to questions submitted by Senator Hickenlooper.....    96
Mr. Chris Pilkerton
    Responses to questions submitted by Ranking Member Ernst and 
      Senator Hickenlooper.......................................    99

 
 OVERSIGHT OF SBA'S IMPLEMENTATION OF FINAL RULES TO EXPAND ACCESS TO 
                                CAPITAL

                              ----------                              


                       WEDNESDAY, APRIL 26, 2023

                      United States Senate,
                        Committee on Small Business
                                      and Entrepreneurship,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 3:33 p.m., in 
Room 428A, Russell Senate Office Building, Hon. Benjamin 
Cardin, chairman of the committee, presiding.
    Present: Senators Cardin [presiding], Shaheen, Hirono, 
Rosen, Hickenlooper, Ernst, Risch, Young, Hawley, and Budd.

              OPENING STATEMENT OF SENATOR CARDIN

    The Chairman. The Small Business committee will come to 
order. Let me welcome our guests today. This hearing is 
scheduled for the oversight of SBA's implementation of final 
rules to expand access to capital.
    So, today's hearing will examine two new rules SBA 
finalized this month that aim to address the gaps in small 
business lending. The first would lift the moratorium on the 
number of small business lending companies, or SBLCs, 
participating in the SBA's flagship lending programs.
    The second would loosen affiliation standards and 
streamline lending criteria requirements in SBA's small 
business loan programs.
    These rules first proposed six months ago and scheduled to 
go into effect on May the 12th, make significant changes that 
will affect which borrowers and lenders participate in SBA's 
lending programs going forward.
    Notably, the rule significantly reconfigured the Community 
Advantage Program, which has been successful in providing 
capital to small businesses and communities that historically 
have been left behind.
    While I recognize that the SBA issued these rules with the 
goal of expanding access to capital for businesses in 
underserved communities and increasing the number of small 
dollar loans, I am concerned that the final rules do not offer 
the stability or specifics necessary to ensure Community 
Advantage's future success.
    I also worry that the rules that leave so many decisions to 
the discretion of the agency would have unforeseen and possible 
regrettable consequences down the road.
    Like many of us, I was disappointed that the final versions 
of these rules are almost identical to those that were 
proposed. Giving the degree of interest from so many corners 
and the significance of changes under consideration, it is 
surprising that the agency wasn't more receptive of many of the 
constructive comments it received.
    In our hearing with Administrator Guzman last month, we 
received assurances that many of our concerns would be 
addressed, yet the rules were released without the SOP 
guidance, which detail how the rule will be implemented and 
without meaningful changes.
    Lenders and borrowers need to know what will be expected of 
them as these rules are implemented and scheduled to go into 
effect on May 12th. And while the SOP guidance will address 
some of the missing details from the final rules, the fact that 
the agency retains discretion to make critical decisions on a 
case-by-case basis means that many program participants will 
remain uncertain about where they stand.
    This is particularly true for Community Advantage lenders. 
While I appreciate that the SBA aims to give the program 
stability through the rulemaking, many lenders may not even be 
aware that the program will be transitioned into the SBLC 
lending program in the coming months or understand what that 
entails.
    Even more concerning, the rule allows the SBA to make case 
by case decisions about important matters like lenders' 
required loan loss reserves and capital requirements. It 
worries me that this program could be changed dramatically by 
subsequent Administrations without any notice to the public by 
issuing new SOP guidance.
    Furthermore, I am concerned that these rules do not ensure 
the long-term integrity of the Community Advantage's important 
mission. The final rule does not specify target markets or 
metrics for success, thereby eliminating the key markers and 
accountability measures that previously ensured the underserved 
markets were served.
    Access to capital in underserved communities has been a 
persistent weakness of SBA lending programs, but Community 
Advantage has been our most successful program in reaching 
these small businesses.
    The program allows mission-oriented nonprofits to make 7(a) 
loans up to $350,000, focusing on economic development for 
underbanked small business owners. Although it is smaller, more 
targeted program than 7(a), the Community Advantage program has 
been very effective in addressing the credit gap.
    As I have repeated since this rulemaking process began and 
long before, I believe the Community Advantage needs the 
stability that comes with statutory codification. The Community 
Advantage Program was created as a pilot more than a decade 
ago, and now in recognition of its success, connecting 
underserved small businesses with capital, Congress needs to 
make it permanent and establish fixed, transparent 
requirements.
    I will continue to push our community to do just that as 
part of our bipartisan reauthorization process. I just might 
point out that part of the reason we are here today talking 
about the rule and our concerns is that Congress has not acted 
in this area.
    We have a responsibility as Congress to give the 
guidelines. That is why I think it is absolutely essential that 
we move forward with our bipartisan reauthorization of the SBA 
laws, where we can speak to the specifics. And if we don't do 
that, we are ceding of our authority to the Executive Branch.
    This is not to take away from the many good ideas in these 
rules, some of which will speed up loan approvals for 
modernizing the underwriting process. However, the changes seem 
heavily focused on giving lenders greater autonomy and less 
guidance, enabling them to rely on automation.
    Absent proper oversight, it is easy to imagine a scenario 
in which these changes enable predatory lending practices to 
creep into the program. Efforts to increase speed and volume 
can help modernize SBA programs, but they must be accompanied 
by corresponding commitments to exercise caution and vigilance.
    The rule gives considerable new responsibilities to the 
Office of Credit Risk Management, or OCRM. However, according 
to a recent whitepaper released by the Inspector General, this 
office is currently short staffed and has been for some time.
    While Administrator Guzman told us earlier this month that 
SBA is confident that OCRM can handle both its current and 
future responsibilities with its existing staff levels, the 
Inspector General observed that the office is not currently 
keeping up with the oversight of the 7(a) loan program.
    Given this new direction, I remain concerned that the 
President's budget did not recommend an increase for OCRM, 
assuming the agency knew these rules were close to being 
finalized in the coming year, the budget request should have 
accounted for the growing importance of this office as a 
primary overseer of the agency's lending programs.
    Again, while we may not see eye to eye on all the 
particulars, I do want to commend the Administration for its 
commitment to expanding the reach of SBA lending programs to 
underserved communities.
    And I assure the Administration, I want to work together, I 
want this committee to work with the Administration in order to 
accomplish our mutual goal of extending credit opportunities, 
particularly to the smaller small businesses and those in 
underserved communities. Small businesses across the country 
rely on 7(a), 504, Community Advantage, micro loan programs.
    Lenders and small businesses alike need these programs to 
remain stable, transparent, and sufficiently empowered to reach 
underserved borrowers. These should be our guiding principles.
    I look forward to hearing from both panels of our witnesses 
today so we can better understand the concerns and we can move 
forward on a common agenda. And with that, let me recognize the 
distinguished Ranking Member, Senator Ernst.
    Senator Ernst. Thank you, Mr. Chair, and thanks to our 
witnesses for being here today.
    And given the importance of today's hearing, according to 
our committee's rules, any member of the committee shall be 
empowered to administer the oath to any witness testifying as 
to fact.
    So, if you both please would rise and raise your right 
hand, I will administer the oath. Do you solemnly swear to tell 
the truth, the whole truth, so help you God?
    Mr. Kelley. I do.
    Mr. Shoemaker. I do.

               OPENING STATEMENT OF SENATOR ERNST

    Senator Ernst. Okay. Thank you very much. Just one month 
ago, Administrator Guzman was before this committee, and 
Chairman Cardin and I both expressed concerns with the SBA's 
new proposed lending rules.
    Fast forward to our very next committee hearing today, and 
now the rules are final, and none of the concerns we discussed 
were considered or addressed. It is really disheartening to 
many of us on this committee, as we saw in a bipartisan manner, 
where numbers of our committee members raised issue with the 
proposed rules, and it shows that the Administrator and the SBA 
was not working in good faith with us.
    These final rules threaten to drastically change the SBA's 
flagship small business lending program. The Administration 
will allow for an unlimited amount of non-depository 
institutions, fintechs, to become permanently licensed SBA 
lenders.
    It also removes underwriting standards that will inevitably 
increase risk. Taxpayers recently witnessed the Federal 
Government lose more than $64 billion in paycheck protection 
program funds due to fintechs facilitating widespread financial 
fraud and improper loans.
    Yet before oversight investigations into these entities 
have crossed the finish line, the SBA has decided that now is 
the time to replace community lenders with artificial bots.
    The SBA is not prepared to evaluate the use of artificial 
intelligence or machine learning algorithms for underwriting 
and loan processing, nor does it have the capacity to enforce 
Federal anti-money laundering laws and know your customer 
compliance, which are vital controls in the U.S. financial 
system to keep money from flowing to and between bad actors.
    The rules state that it will fill the market gap for 
smaller dollar loans to underserved borrowers. But the rules do 
not limit the new non-bank lenders to small dollar lending. It 
begs the question, do we think fintechs will pursue small 
dollar loans or take up the opportunity to do $5 million loans 
if they have the ability to be repaid by the Government for a 
default?
    At the same time, the rule will allow for larger businesses 
to exploit these programs intended for truly small businesses. 
Lastly, the rules will give the SBA Administrator the authority 
to reverse loan decisions, forcing lenders to provide a loan, 
which is a backdoor way to direct lending by the agency.
    These sweeping changes will encourage risky lending 
behavior, causing subsidy rates to rise and increase fees on 
the very borrowers that SBA is trying to help. In spite of a 
bipartisan push for the SBA to exercise diligence and 
restraint, the SBA has ignored Congress, Democrats and 
Republicans, specifically this committee, every step of the 
process and is moving full speed ahead.
    Mr. Chairman, I do hope that we can work together to reign 
in the SBA's ill-conceived changes to these critical programs 
and actually address the gaps in small dollar loans and lending 
in rural America.
    Shifting loans from our banks on Main Street to bots in San 
Francisco isn't the best interest of our small businesses in 
Iowa, nor across the United States. And I want to be very clear 
about this, we need to come to a bipartisan agreement on a 
legislative response to these rules before we begin 
negotiations on other aspects of modernizing the SBA.
    Small business lending is the foundation of SBA's programs, 
and we can't undertake renovations to the rest of the agency 
until this dire problem is fixed. Thank you, Chairman.
    The Chairman. Let me thank the ranking member. We will now 
hear from our first panel of witnesses. Let me introduce both. 
Thank you both for being here.
    Mr. Patrick Kelley serves as the Associate Administrator 
for the Office of Capital Access at the Small Business 
Administration.
    In this role, he is charged for overseeing the office's 
operations, and the office is responsible for making capital 
available to small businesses through banks and other lending 
partners. This is his second stint at SBA, as he previously 
served in several positions during the Obama Administration.
    And Mr. Shelton Shoemaker serves as the Deputy Inspector 
General for the SBA's Office of Inspector General. He has been 
with OIG since 2011. He served in numerous positions at that 
agency before assuming his current role.
    As the Deputy Inspector General, he serves as a principal 
advisor to the Inspector General and assists in overseeing the 
office's operations.
    Without objection, both of your full statements will be 
made part of the record. You may proceed for approximately five 
minutes, leaving time for us to be able to ask questions. We 
will start with Mr. Kelley.

TESTIMONY OF PATRICK KELLEY, ASSOCIATE ADMINISTRATOR, OFFICE OF 
       CAPITAL ACCESS, U.S. SMALL BUSINESS ADMINISTRATION

    Mr. Kelley. Chairman Cardin, Ranking Member Ernst, members 
of the Small Business committee, thank you for the opportunity 
to appear here today on behalf of Administrator Guzman and the 
Biden-Harris Administration.
    I began as the Associate Administrator for the Office of 
Capital Access in March of 2021, and as the Chairman mentioned, 
I have been responsible for the Paycheck Protection Program, 
the COVID EIDL loan program, the Restaurant Revitalization 
Program, and now oversee the 7(a) program, the 504 program, 
micro-loans, and the Surety Bond Program.
    What I want to start first by saying today is for the first 
two years of this position, the number one priority from 
Administrator Guzman was to take care of the challenges that we 
inherited when President Biden took office regarding the CARES 
Act programs.
    Over the last two years, we have screened 49 million 
applications across the CARES Act programs, PPP, and COVID 
EIDL, as well as SVOG, and Restaurant Revitalization, which 
were part of the American Rescue Plan.
    We have flagged almost 6 million files for suspicious 
activity, we have conducted 3.5 million manual reviews, and we 
have referred over 3 million instances of attempted fraud in 
what we believe is fraud on disbursed loans. Close to 800,000 
loans that were dispersed and 3 million more that were 
attempted.
    So roughly $40 billion is the fraud estimate that we 
believe was dispersed, and $60 billion of attempted fraud 
totaling $101 billion. And we intend to support, and our budget 
reflects that from President Biden, the Office of the Inspector 
General in their attempt to go get the bad guys that we have 
identified.
    Since Administrator Guzman took office, we have made every 
single piece of data available to the Office of the Inspector 
General. Our predecessors sued the Office of the Inspector 
General and the public to keep that information private, which 
I believe created and exacerbated the issues regarding the 
allegations and estimates of fraud.
    We have addressed all of the material weaknesses that we 
inherited, IP static address, failure to check business 
address, automated screening, data analytics to determine which 
supervised learning models, which prioritized files we need to 
manually review.
    So, I start there because it is important to understand 
that for two years, we have, through automated screenings, 
through data analytics tools, through manual reviews, referred 
now 3.5, 3.6 million applications to the Office of the 
Inspector General for them to go after, and we will continue to 
work with them on that.
    I start there because it is important to understand that 
the CARES Act program legacy will not simply be the management 
challenges that the Biden-Harris Administration handled, but 
what the Biden-Harris Administration did to stop that, to put 
an end to it, and then to take from there and make sure it 
never happens again.
    In our programs moving forward, and I look forward to 
discussing all of the issues that Ranking Member Ernst and 
Chairman Cardin addressed, I look forward to discussing how we 
will screen in all of our existing programs pre each ran 
authorization for eligibility and fraud moving forward.
    And I am happy to get into the details of that. We believe 
that that is an important step that will be reflected in my 
colleagues, Deputy Inspector General Sheldon's testimony 
regarding the need for reviewing borrower and lender 
certifications so that we never again go to the point where we 
are relying on lender or borrower certifications.
    So, the last thing that I will share with my remaining 
minutes that I think is important for the members of the 
committee to understand and is important for me to share with 
the rest of the folks here, my family comes from Manchester, 
Connecticut.
    My parents grew up in East Hartford, which is the home of 
John Larson, and my grandmother lived on Mitchell Drive there, 
and it was an FHA home, post-World War II. She worked as a 
clerk in a grocery store. My grandfather worked in Pratt 
Whitney as a firefighter.
    When my grandmother passed away, my mother was in the house 
or finishing up the estate, and at a certain point, maybe she 
wouldn't want me to share this, she was cursing a blue streak 
from the kitchen. In these houses, and for the kids here that 
don't remember, there were phones with cords, extension cords 
that would go throughout.
    And my mother was cursing a blue streak because she learned 
that my grandmother was leasing her phone, the phone on the 
wall, from the phone company. That phone company had taken 
advantage of my grandmother and cost her money that that Social 
Security check was precious.
    So, I remember this vividly, and I understand what our 
responsibility is to go after charlatans in the financial 
markets. And I have spent a career working on those issues, and 
I look forward to handling all the questions today and working 
with the committee as we move forward. Thank you.
    [The prepared statement of Mr. Kelley follows:]

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    The Chairman. Mr. Shoemaker.

   TESTIMONY OF SHELDON SHOEMAKER, DEPUTY INSPECTOR GENERAL, 
OFFICE OF INSPECTOR GENERAL, U.S. SMALL BUSINESS ADMINISTRATION

    Mr. Shoemaker. Thank you. Chairman Cardin, Ranking Member 
Ernst, and distinguished members of the committee, thank you 
for the opportunity to be here before you today on behalf of 
Inspector General Ware.
    IG Ware currently is part of a high-level delegation to 
promote law enforcement partnerships with foreign counterparts 
in furtherance of rooting out fraud in the pandemic response 
programs.
    I am honored to represent the dedicated men and women of 
OIG and their hard work as this committee examines SBA's 
implementation of two recently finalized rules. SBA's final 
rules rescind the moratorium on new SBLC licenses, remove 
requirements for a loan authorization, and remove control as an 
element of affiliation, among other various regulatory changes 
in the 7(a) and 504 loan programs.
    OIG provides independent and objective oversight of SBA's 
programs and operations. In doing so, our office provides 
recommendations to SBA leadership to improve the performance of 
SBA's programs and services for the benefit of the American 
people.
    SBA 7(a) lending program provides financial assistance to 
small business in the form of Government guaranteed loans. 
SBA's lending partners in this program where the basis of the 
Paycheck Protection Program, which delivered vital financial 
assistance through the lending partners to mitigate economic 
damage resulting from the pandemic.
    There has been no higher priority for our office than 
providing oversight of the pandemic response. In the past two 
years alone, OIG's work has resulted in an exponential return 
on investment to the taxpayer, which is valued at more than $9 
billion.
    In doing so, we have published 49 reports. Our work also 
has played a major role in the return of more than $30 billion 
in pandemic relief funds from borrowers and financial 
institutions.
    This work and our decades of oversight of the lending 
programs, affirms SBA must take deliberate and intentional 
steps to design, implement, and operate an effective internal 
control system as it lifts the moratorium on new SBLC licensors 
and as the Community Advantage SBLC into the 7(a) program.
    When SBA placed a moratorium on approving SBLC licenses in 
1982, it did so to reduce the administrative resources needed 
to prudently regulate and oversee nine depository lenders with 
a nationwide 7(a) lending platform.
    As recent as 2020, SBA stated in its rule aimed at the 
supervised lender application process, that it does not have 
the administrative resources needed to increase the number of 
SBLCs beyond 14 or to oversee their participation in a 
nationwide 7(a) lending platform. Such concerns are well 
founded, especially in context of increased risk that are 
associated with lending authorities available within a 7(a) 
program, which presently are not authorized by the Community 
Advantage pilot program.
    Concerns also are present in context removal of loan 
authorization during loan origination. OIG's white paper on 
risk awareness and lessons learned from prior audits of 
economic stimulus loans, which was offered by OIG at the outset 
of the pandemic response, sought to inform the policy decisions 
in implementing the Paycheck Protection Program.
    Among the considerations in this white paper was for SBA to 
issue clear requirements and ensure timely communication to 
lending partners. Clear guidance and program requirements 
following the current rulemaking will enable lenders to 
participate in the programs with confidence that guarantees are 
secure if terms and conditions are met.
    I have offered additional insights on risk in my written 
statement that are based on our prior work. We believe 
appropriate consideration should be given to mitigating this 
risk as SBA implements these rules.
    Solid rules and regulations, strong internal controls, and 
effective process for oversight and monitoring can mitigate 
risk and lead to efficiency and effectiveness. Technology also 
can be a powerful tool in establishing a robust internal 
control environment for program management, for 
responsibilities of monitoring oversight, and for regulatory 
enforcement.
    Such efficiencies can augment limited resources. However, 
technological tools can be limited by availability of essential 
data. To effectively employ artificial intelligence, 
comprehensive data must be available and be current.
    It is vital where data limitations exist, the internal 
controls also are not absent and are calibrated in a manner 
that provides necessary assurance. OIG has an established track 
record of providing oversight at the inception of new programs, 
such as the State trade expansion program.
    The transparency afforded by our work and our well-founded 
recommendations for corrective action improve program delivery 
to the nation's small businesses. The nation once again could 
depend on OIG to provide independent, objective, and timely 
oversight of SBA.
    Thank you for the opportunity to speak with you today. I am 
happy to answer any questions you may have of me.
    [The prepared statement of Mr. Shoemaker follows:]

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    The Chairman. Well, let me thank both of you for your 
public service. Thank you very much for being here. And thank 
you for the role you are playing on behalf of small businesses.
    Mr. Kelley, I appreciate your testimony in regards to going 
after those who have committed either fraud or mistake. That is 
something that was really the subject matter of our last 
hearing. This hearing, the subject matter of the two rules that 
have been promulgated.
    And I am somewhat disappointed that your statement doesn't 
really address that rule. It is more dealing with the fraud 
issues than it is the rule that is before us on this hearing.
    So let me try to drill down a little bit. This rule is 
going to take effect in two weeks. When do you expect the SOP 
to be available?
    Mr. Kelley. I think our deadline right now is May 3rd, or 
in and around that date.
    The Chairman. And can you tell me why the rule? How do we 
guarantee that we are going to see loans to small businesses, 
smaller loans? How are we going to guarantee that the CA 
lenders are concentrating in underserved communities?
    How are we going to assure CA lenders are borrowers of the 
cost of the loans or the underwriting rules? I don't see that 
in the rule itself.
    So, if I am a CA lender, what confidence do I have that 
this program is really geared towards my mission, which is to 
provide help in underserved communities and smaller, or small 
loans.
    What assurance do I have that someday it won't be turned 
over to the larger loans, as we saw what happened with the 7(a) 
program?
    Mr. Kelley. So first, as Administrator Guzman did share 
with you and we shared with staff, we intend to put in the SOP 
and you will see reflected the 60-40 rule that was reflected in 
the Community Advantage Program guide.
    We have also discussed with your staff your bill, the 
Cardin-Chu bill calls for a 70-30 ratio. One of the reasons 
that Administrator Guzman did not put a 60-40 requirement into 
the rule is because, as she shared with you and members of the 
committee, the current definition of underserved does not 
include women or minorities.
    And so, any definition of underserved, I think in the room, 
would include those two bodies, most especially since African 
Americans represent 12 percent of the population, they 
represent 41 percent of sole proprietors, and they see 2 
percent currently of 7(a) loans.
    And so, for example, when my counterpart here in the 
private sector, Hilda Kennedy, testifies of her lending in 
California, if her shop wanted to focus on meeting that 
underserved gap regardless of income level, she would not be 
able to focus exclusively on that as a mission-based lender. 
And it is the same for women who are underrepresented as well 
in the seven loans for the same thing.
    The Chairman. So, I am a bit confused. You are saying you 
didn't want to put anything in here to protect the mission and 
to the rule itself because basically court concerns about 
target groups.
    So, we have had a program that has been successful. The CA 
program has worked with the guidance on a percentage of loans 
in underserved communities, and you are throwing that out and 
saying we are not going to have anything in the rule but trust 
us. Is that what I am hearing from you?
    Mr. Kelley. No. That is not what you are hearing. So, in 
the 7(a) program, all lenders make 50 percent of their loans to 
the current definition of underserved.
    So, the current definition of underserved is rural, low to 
moderate income, hub zone startup, those businesses in business 
less than two years, and veteran owned businesses. So 
regardless of lender type, regardless of loan size, roughly 50 
percent of the loans----
    The Chairman. Which is not in this rule, is it?
    Mr. Kelley. I am saying you are correct. It is not a 
requirement of the rule. And yet every year the lenders, 
through their lending activity by nature of the----
    The Chairman [continuing]. But that is the pilot program--
that is the CA pilot program.
    Mr. Kelley. Correct. But the--what I am explaining is that 
if you did not have a 60-40 percent threshold in the Community 
Advantage program like we do not have in the 7(a) or the 504 
program, when the lenders are making their loans, the outcome, 
the outcome of the loans, the standard 7(a) express 504 loans 
ends up meeting the underserved definition that is defined in 
the Community Advantage, 50 percent.
    What is better in the Community Advantage Program is the 
loans to women and minorities. But in that definition, they do 
not get credit in the 60 percent threshold of meeting that 60 
percent----
    The Chairman. But they are meeting--look, the communities--
the Community Program is working. We have the 60 percent and we 
also have the penetration to the target groups who would like 
to get the loans. And the loans are also smaller dollar amounts 
and are also costing less. But none of that is in the rule.
    Mr. Kelley. Yes. So, as I explained to you, and 
Administrator Guzman explained to you as well, we are putting 
that 60 percent--40 percent threshold in the SOP. Each lender 
is responsible for executing the form 750.
    The first line or first two sentences of that form, the 
form 750 requires that the lender comply with all statute, all 
regulation, and all SOP guidance regarding the rules.
    The Chairman. What assurance do I have as either a lender 
or a borrower about the cost of a low--a small loan which is 
competitive under the CA pilot program but not necessarily 
under 7(a) program? What assurance do I have on costs? Is there 
something in the rule that I haven't read?
    Mr. Kelley. When--so are you referring to rate and fees of 
a 7(a) loan or are you referring to the capital requirements, 
the fidelity insurance requirements?
    The Chairman. I am really referring to both, but right now 
I am talking about the cost of processing.
    Mr. Kelley. Okay. So historically, Community Advantage 
lenders have always enjoyed a higher interest rate than 
standard 7(a) lenders. Most recently, we promulgated rules to 
standardize that for all lenders. And so----
    The Chairman. Is there something in this rule that I can 
look at that says that we are protecting the 7(a) CA program on 
costs, processing costs?
    Mr. Kelley. Yes, so----
    The Chairman. It is in the rule?
    Mr. Kelley. So, the rates themselves are in----
    The Chairman. Processing costs, I am talking about.
    Mr. Kelley. Yes. Okay. So, then that is the fidelity 
insurance and capital requirements and loan loss reserves. So, 
for example, in the Cardin-Chu bill, you do not call for a 
capital requirement threshold or a fidelity insurance 
threshold. So let me explain----
    The Chairman. Are you supporting the statutory approach of 
our legislation?
    Mr. Kelley. We are absolutely--we were directed by 
Administrator Guzman to, after working with your staff on Build 
Back Better regarding making Community Advantage permit, to 
look for the areas where your bill could direct us in a way 
that would make the Community Advantage program stronger.
    So, for example, in your bill you call for a 5 percent 
threshold for the loan loss reserve requirements, which allows 
for over 36 months of performing loan performance for that loan 
loss provision to come down.
    The Chairman. Are you supporting us statutorily passing 
legislation to make permanent CA program similar to the 
legislation that has been--was filed? Are you supporting a 
statutory approach or not?
    Mr. Kelley. I would support anything that helps Community 
Advantage lenders with their mission.
    The Chairman. I will take that as a yes. Senator Ernst.
    Mr. Kelley. Good.
    Senator Ernst. Mr. Chair, Senator Risch does have another 
commitment, so I will yield my time to him.
    Senator Risch. Thank you, Mr. Chairman and Ranking member.
    First of all, I was hoping Ms. Guzman herself was going to 
be here because I wanted to thank her and congratulate her by 
accomplishing something that is very, very seldom done around 
here, and that is bringing Republicans and Democrats together 
to oppose what they are doing on this thing. This is a disaster 
in the making.
    What shocked me was--I mean, we were treated like chopped 
liver around here. Guzman told us, oh, they are going to pay 
close attention to the concerns that we have. And less than 
just ten business days later, they announced that the rule was 
moving forward without any consideration of what this committee 
input that is put in here.
    Look, the financial industry--if you were in front of the 
Banking committee, I think they would be taking your head off 
here. The banking industry, the financial industry needs really 
close oversight regulation.
    I am no fan of Government regulation, but when it comes to 
finances, this country has learned over and over and over again 
with the banks--start with the savings and loans disaster that 
we had. If we aren't looking over the shoulder of the lenders, 
this is a disaster waiting to happen. And that is exactly what 
you are doing bringing the fintechs in here.
    We certainly should have learned this from the PPP program. 
All of us knew when we voted for that, that it was--we were 
taking a chance because of the know your customer was going to 
be out when there were too many customers. And that is exactly 
what you are headed for here. I would hope that you back up on 
this.
    I suspect you are going to be facing the CRA if you don't. 
Probably a bipartisan CRA if this regulation comes down the 
pike. But you know, the--one of the things that struck me is 
you are Fiscal Year 2022 goal for 7(a) loans to underserved 
markets was how much? 43 percent. Do you know what the actual 
production was on it? It was 68 percent.
    So, there is no failure here. I mean, you far exceeded the 
goals of what you were trying to do. So, I am not sure who the 
geniuses that brought this up, but I wish you guys to take this 
back to the drawing board and listen to us. I think Senator 
Cardin is right.
    I think, you know, we trust the agencies generally to do 
the kinds of things that we don't have time to do. It looks to 
me like we are going to have to take the time to do this, and I 
agree with you, Mr. Chairman. I think this is going to take a 
statutory answer to this.
    I have some very specific questions for the record, and if 
it is okay, I will submit those, Mr. Chairman.
    The Chairman. Certainly. Thank you. Senator Hirono.
    Senator Hirono. Thank you, Mr. Chairman. I take it that the 
concerns being expressed by my colleagues regarding these new 
rules also have to do with whether or not there are enough 
protections in the new rules to guard against fraud. Is that 
correct, Mr. Chairman?
    So, Mr. Kelley, what is in these rules that is different 
from what happened during the CARES Act provision, which, by 
the way, we did not--it is not as though Congress put in a lot 
of resources for SBA to do this stuff. We just sort of said, 
here, go and do it.
    So, in these new rules, what kind of anti-fraud measures 
are in the rule, briefly?
    Mr. Kelley. So, the moratorium allows a lender to 
participate in the 7(a) program. And as such, they comply with 
all the statutes, regs, and SOP related to 7(a) loan.
    So, for example, what was different--what is different 
about a 7(a) loan than a paycheck protection loan program? 
First off, there is underwriting. Second, there is collateral.
    Third, there are personal guarantees for any owner of 20 
percent or more. And then what I indicated in my testimony and 
the reason I began with the CARES Act programs is because I 
wanted the committee to understand one of the major lessons 
that we did take away at the agency from the challenges that 
the Biden-Harris Administration inherited with respect to fraud 
in the CARES Act programs, and that was that if we need to do 
speed and certainty both, not just speed.
    And certainty requires that we put in place systems that 
will screen automatically before we disburse the money. The 
notion that you can go get the money after it goes out the door 
was never a real strategy.
    So, what we are also putting in place with this SOP for the 
first time is for all delegated loans, all non-delegated loans, 
any loan that is going to be originated across 7(a) and 504 and 
we did this in PPP three, we will be screening 19 different 
categories of eligibility and fraud.
    And if there are alerts and flags, which there were in POP 
three and there were in COVID EIDL, then we will move to 
determine whether there is a false positive, meaning it was an 
error and the person can move forward and demonstrate that that 
was a false signal.
    Or if not, we will prevent that from moving forward. And 
what that addresses in the audit reports that we share and that 
they provide feedback for us, is the notion of improper payment 
related to ineligible loans or reasonable reassurance of 
repayment.
    Senator Hirono. So, Mr. Kelley, you are telling me that 
there are many checks, many more checks than that were in place 
during the whole PPP and EIDL and those programs, because we 
directed you to put all this money out there in the community 
during a very challenging time for our small businesses. Is 
that correct?
    Mr. Kelley. Yes, it is.
    Senator Hirono. It sounds like. Okay, good. Then, did I 
hear you say that the definition of underserved do not include 
women and minorities owned businesses?
    Mr. Kelley. Correct.
    Senator Hirono. So that is a change, isn't it, that you are 
making?
    Mr. Kelley. No, it is not--it is not a change. It is never 
included. It has never been included.
    Senator Hirono. Why wouldn't you include minority owned 
businesses as underserved in the underserved group?
    Mr. Kelley. The agency under the Obama Administration, when 
we created the Community Advantage program in 2011, determined 
that using class, race, and gender as a differentiator would 
not be considered Constitutional.
    Senator Hirono. Has that been tested in court?
    Mr. Kelley. Well, we were sued, as you know, in the 
Restaurant Revitalization Program, where we had economically 
and socially disadvantaged and women as a priority applicant.
    And two injunctions were issued by two different courts. 
So, it has not been directly tested because we have not 
included it, but it was tested in the Restaurant Revitalization 
Program. And that is one of the reasons that you do not see in 
the definition.
    So the point I was trying to make to Chairman Cardin--I 
didn't do a good job and I know we are in align on this, but I 
am doing a bad job communicating, is that when we think of my 
friend back here, Hilda Kennedy, who is going to testify in the 
next panel for Accion, for the other guy, their focus is in 
these marketplaces, rural women, minority borrowers.
    And from the Administrator's perspective, she does not 
believe that mission-based lenders are going to forget their 
mission when they go to lend. And she wants to make sure that 
they are not ever in a position where they are non-compliant 
with our threshold because they want to originate 100 percent 
of their loans for women, for example, women entrepreneurs.
    Senator Hirono. So, I understand that you do have some 
legal concerns, but when we are talking about wanting to expand 
access to capital for minority owned businesses, that speaks--
that says to me, you obviously have information relating to 
black owned businesses.
    I would like to know whether you have any data on hispanic 
owned businesses, Asian-American businesses. There are 
thousands of small businesses in these categories, but you are 
saying that you have a concern about keeping track of the kind 
of loans that are made to these groups of businesses, of which 
there are thousands, and they are not all in hubs or all in 
rural areas, or whatever other categories you have.
    Mr. Kelley. Yes. So, what I am saying is, is that that data 
today is--has always been voluntary.
    The CFPB 1071 rules that have just been passed, which to my 
friend from Idaho with respect to the Banking committee, the 
banks were not in favor of 1071 for reporting, right, but that 
is a rule that is going to give us transparency on this very 
issue.
    And the further point that I am trying to make for 
Administrator Guzman is that because there is a question of 
Constitutionality in the minds of the Biden-Harris 
Administration, the Trump Administration, and the Obama 
Administration, three different Administrations that kept the 
Community Advantage Program alive and did not include those 
definitions that, we think we might be undermining the mission 
based focus on race and gender, which we totally agree 
violently agree that is where the true gap is.
    So, this would be, to Chairman Cardin and Ranking Member 
Ernst, in their desire to pass a law to make Community 
Advantage permanent. If Congress wants to make the underserved 
definition to include race and gender, which, for example, we 
worked with Senator Cardin's staff on Build Back Better, it 
would have, then we will implement the law as it is passed.
    But from the standpoint of the beginning of the Community 
Advantage Program to now, that definition has not included 
those.
    Senator Hirono. Okay. Thank you, Mr. Chairman. I think you 
should think about including race and gender as factors.
    The Chairman. Senator Ernst.
    Senator Ernst. Thank you, Mr. Chair. And as you can see, 
there is a lot of concern across the board about our discussion 
at the last hearing and the issues that were raised by the 
Senators on this committee.
    I know there are concerns in the House as well about the 
issues with the rules, and yet no changes were made to those 
rules. So, Mr. Kelley, I am concerned you started making calls 
to stakeholders to garner support for these rules when you 
noticed that they weren't receiving support.
    At any point during the rulemaking, did you conduct 
outreach or have discussions with stakeholders that was not 
made public and part of the rule's records, yes or no?
    Mr. Kelley. The--did we conduct outreach? Yes, we made all 
of the folks available--all the folks aware that the rules were 
available. We conducted staff meetings with Senator Cardin, for 
example, with members of different Community Advantage working 
groups.
    There was various, Now CAB, other groups as well who 
provided feedback. And then that feedback was reflected in the 
public written record as it was put forward.
    Senator Ernst. So, okay. So, you did have discussions with 
stakeholders and it was made public.
    Mr. Kelley. Yes, I believe so.
    Senator Ernst. And part of the rules record?
    Mr. Kelley. I believe so.
    Senator Ernst. Did you make any promises or commitments 
concerning the standard operating procedure documents or agency 
procedural notices in order to garner support for these rules, 
yes or no?
    Mr. Kelley. In order to garner support, no.
    Senator Ernst. Will you provide the committee with copies 
of your schedule, phone logs, and email communications during 
the rulemaking period.
    Mr. Kelley. I will do that--as you know, all of that 
information is the agency's property and working with the 
committee, you can submit a request----
    Senator Ernst. So, yes.
    Mr. Kelley. But I think for full transparency, as Senator 
Cardin's staff understands and knows, and as we have alluded to 
in these discussions, Administrator Guzman had discussions, as 
is mentioned, with all of members of the committee regarding 
the rules and the feedback and regarding the public comments 
that had come in.
    And we discussed the public comments that were in the 
public record with various members about their concerns and 
their questions to amplify whatever they had already raised in 
the public record.
    Senator Ernst. Okay.
    The Chairman. I just want to point out, I am not sure Mr. 
Kelley can fully answer that question. These are legal issues 
that I would want the SBA to be able to work with us to get the 
information that we need. So, I recognize that is a question 
that may not be under your specific decision making.
    Senator Ernst. I would also--thank you, Mr. Chairman. And I 
also would want to know, of course, if there were discussions 
with stakeholders outside of Congress as well.
    Moving on from that, the SBA under your direction ended 
debt collections on $1.1 billion worth of unforgiven PPP loans 
under $100,000, and according to the Inspector General, is 
planning to do the same with about $71 billion worth of COVID 
emergency disaster loans, or the EIDLs.
    So, I sent a letter to Administrator Guzman on this EIDL 
decision, and I did receive a response, but I consider it an 
insufficient response. And that response came this morning, 
conveniently today as you are testifying. The letter failed to 
answer any of my questions.
    So, let's make sure we are setting the record straight, Mr. 
Kelley. Is SBA going to pursue debt collections on EIDL program 
loans under $100,000? And have you reached out to every 
borrower to confirm their ability to repay these loans?
    Mr. Kelley. Yes, we have. And I would like to clarify this, 
too, because it is important that we don't mislead borrowers. 
Every single borrower of PPP loan and every single borrower of 
a COVID EIDL loan must repay the loan.
    If they do not repay the loan, they were referred to credit 
bureaus. If they do not pay the loan, they are referred to 
Treasury, do not pay. The decision we made with the law--the 
law calls for the agency to make a cost benefit analysis for 
instances under $100,000, where the cost of administering the 
Treasury offset would be higher than the recovered dollars.
    And we looked at the costs, which it was estimated to cost 
about $6 million to collect $3 million on that $1.2 million--or 
1.2 billion or 77,000 PPP loans. And that is because when we 
took a more conservative loan portfolio snapshot, we took 2009 
to 2022, loans that had been underwritten, loans that had 
personal guarantees, loans that had all available collateral 
but could be unsecured, and we looked at what Treasury offset 
wage garnishment had collected, in that 13-year period, had 
collected $65,000.
    We had no personal guarantees. We had no underwriting. We 
had no collateral. These were all by design. These were not 
bugs. These were features of these programs. And so, after 
someone has not made repayment and the lender has taken the 
servicing and liquidation action that they can take, they seek 
purchase.
    And when we estimated the cost of pursuing Treasury offset, 
or TOP, it would cost us more than the money we would collect. 
And that is why we opted to stop that so that we didn't waste 
$3 million of taxpayer money.
    Senator Ernst. Mr. Kelley, I don't think it is a waste to 
ask Americans to repay loans that they signed----
    Mr. Kelley. We are asking them to repay. We are not--we 
are--I want to make this really clear. We 100 percent, I want 
everyone watching at home on C-SPAN, you must repay your loan.
    If you do not repay your loan, if you do not seek 
forgiveness, incidentally, if you miss 60 days of nonpayment in 
the PPP Program by design, ratified by the Economic Aid Act, 
you still have up to five years to come back and seek 
forgiveness.
    So, we would be referring to Treasury debt. You are then 
allowed to have an administrative hearing as a member of the 
public regarding that before that wage offset kicks in.
    That costs the agency $700,000 in fees. You then can seek 
forgiveness for which under $100,000, by law, under the 
Economic Aid Act, you need to submit a one-page form to the 
lender who then services the forgiveness decision.
    So, repayment is 100 percent required. We will put them in 
Treasury do not pay, which means that they are barred from 
seeking any other aspect of Federal programs until they make 
the Government whole on that.
    They are referred to the credit bureau, so their credit 
score goes down and we should make a distinction as well. If 
anyone is an LLC, s-corp, or c-corp and they borrowed money, 
less than $100,000, they can enter into bankruptcy. And because 
the program did not require any personal guarantees, they will 
be discharged.
    And because we are in subordinated position as a result of 
the program, we don't have any standing in order to recover 
anything from the senior debt holders. So, repayment is 
absolutely required. We are doing everything, as are the 
lenders, to get repaid.
    We have forgiven 10.6 million out of 11.4 million PPP loans 
to date. And as you know, the taxpayer already gave 103 cents 
on every PPP dollar to either be used for purchase or for 
forgiveness. So, the only step that we are foregoing seeking is 
where we are going to lose $3 million more dollars of taxpayer 
money.
    The signal is not that we are telling you not to repay. We 
are absolutely telling you repay. But when we decided as a 
country, Congress and the Executive Branch, that we were going 
to provide emergency relief and we weren't going to require any 
of the safeguards that are normally associated with these 
loans, that was going to impact our ability to collect on the 
back end, which is why the subsidy rate was 103 cents to 100 
cents.
    So, it is important that we will absolutely seek repayment.
    Senator Ernst. Well, and I know we need to move on, Mr. 
Chair, but I think the message is out there, though, that we 
are not doing everything we humanly can. We would rather not 
spend the $3 million. It is just like the charlatan that went 
after your grandmother on the phone issue----
    Mr. Kelley. That person got away. In the case of the PPP 
program, we have identified the folks that either attempted 
fraud or committed fraud and we have referred them to the IG so 
that we can all go get them. That is the distinction.
    Senator Ernst. Thank you. And we will go ahead, Mr. Chair.
    The Chairman. Thank you. Senator Hickenlooper.
    Senator Hickenlooper. Thank you, Mr. Chair. Associate 
Administrator Kelley, nice to see you again. I know that the 
SBA is only adding three additional SBLC licenses at the moment 
on top of the 14 licenses successfully managed for 30, 40 
years, I guess, as part of its rulemaking.
    However, many of the comment letters on the SBLC's final 
rulemaking have argued that removing the moratorium completely 
risks the--risks letting too many firms into the program for 
the SBA to be safely able to manage it.
    Are you willing to commit to only adding additional SBLC 
licenses once and only after the SBA has conclusively 
demonstrated it can provide appropriate oversight of the new 
SBLCs?
    Mr. Kelley. Yes. So, we indicated the reason that we 
didn't, and we indicated this in the proposed rule, and that we 
felt we had the capacity to take on three additional lenders.
    And I think what is important to understand is that in the 
40-year history of the SBLC licenses, there has been 14 
licenses. Those licenses have been available for sale for that 
entire 40-year period and have transferred 61 times.
    Each time there is a transfer, you need to--the buyer and 
seller need to apply to the SBA. There is a process written out 
in the SOP in the standard operating procedures. It has been 
there. It is not changing. It is not going anywhere.
    You apply when the application is reviewed. So, when we 
look to see whether the buyer should be approved from the 
seller, we look at the safety and soundness.
    We look at their portfolio history. We look at their 
business plan approach. We look at whether or not they comply 
with all of the rules that they need to comply with as an 
entity. So, for example, State user laws. We look at Bank 
Secrecy Act and those types of things.
    So, all of those things are put into consideration today 
that was in existence when we were growing the Community 
Advantage program up into the moratorium.
    And that program, the high water mark of that program was 
130 entities. It dropped down post moratorium through attrition 
to the low nineties and has since moved up to 108 entities.
    So, when we looked at the existing capacity, we looked at 
the oversight headcount. We see exactly what you see. 
Administrator Guzman, I, we all share the same concerns. We 
looked at the fact that we had the capacity under the ceiling 
and we set it at three because we understood clearly that we 
were going to be doing something different.
    But we should make no mistake about the following either. 
And I think it was a great point that Chairman Cardin and 
Ranking Member Ernst brought up. You know, how do we know that 
these lenders will make small dollar loans or how do we know 
that these lenders will fill the gap?
    Why are we not asking the same of the lenders who have 
participated in the program for years? We have not--we have not 
been called on to require a quota for any of the banks or 
credit unions.
    Credit unions make 500 loans a year in the SBA program, and 
yet there are north of 5,000 institutions out there. In the 
90s, credit unions explained, against the bank wishes, that 
they were going to grow access to capital by serving 
underserved needs, and yet their average daily balance to high-
net-worth individuals has grown.
    So, each time we look at these institutions, we are keenly 
aware that the lending intermediaries that we work through can 
make choices. But I don't know why we are limiting ourselves to 
being concerned about the lenders who in the marketplace are 
showing time and time again that they have created a 
comparative advantage.
    They think their business model is competitive and we are 
going to give them a conforming product, a product that has 
transparent terms, better amortization periods, better rates, 
better fees, and that is the only thing that they can 
originate.
    And as I said in my opening testimony, we can screen now, 
prior to each brand authorization, with digital tools, we do 
random audits of those files every time they file.
    So, to Ranking Member Ernst's concern, every time they make 
a bad loan, and Deputy Inspector General can echo this, if they 
make a bad loan in less than 18 months as an early default, it 
is referred to the Inspector General as well as us, and we look 
to repair and deny the guarantee.
    So, I think that we--I just want to make everyone aware 
that we completely agree with all members, bipartisan, that 
this is a thing that has to be taken soberly, has to be taken 
seriously.
    And we believe that we have systems that we have developed 
over time that can support that. And yes, we are going to move 
slowly. We are going to move judiciously to get it right.
    Senator Hickenlooper. Good. I think the question, which I 
think you have answered, is that we want to make sure that 
there that we are not losing anything in the transition, and 
that somehow the having the barn door open a little bit isn't 
going to lead to some level of, you know, uncontrolled 
transformation.
    And I am that is not a worry of mine. I think that you have 
demonstrated that you have the capacity to administer the 
program properly and that you are going to do so cautiously and 
expeditiously. I yield back, Mr. Chair.
    Senator Shaheen. Thank you. Senator Budd.
    Senator Budd. Thank you, Chair. Again, thank you both for 
being here. Mr. Kelley, I want to go back to a previous 
conversation you had with Chairman Cardin. Can you clarify of 
the 60, 40 split in the SOPs that applies to all lenders or 
just the SBLCs?
    Mr. Kelley. So currently right now, the 60, 40 requirement 
is in the Community Advantage program only.
    And so what I shared with Chairman Cardin, now I will 
repeat for you, Senator Budd, is that roughly 50 percent, 
right, in a given year of 7(a) loans and 504 loans, regardless 
of size and regardless of lender touch, the definition of 
underserved--and the definition of underserved includes low to 
moderate income, hub zone, startup, those businesses in 
business less than two years, and veteran owned businesses, and 
rural.
    Senator Budd. So that is 50 percent?
    Mr. Kelley. That is roughly 50 percent. Yes, there is--give 
or take. And so, my point to Chairman Cardin was that if 
minorities are seeing less loans or women are seeing less 
loans, then the census track is demonstrating that they are 
sole proprietor.
    So sole proprietors, as you know, seek smaller dollar 
amounts, right, by definition, right. And so, if those types of 
entities overindex, which they do in the census track, to 
minorities and women, and we are not seeing--when we are seeing 
a five-year decline of like 45 to 50 percent in terms of small 
dollar lending, then the outcome that is created by that, 
right, is that you are going to see less loans, right.
    And if those there are less loans to sole proprietors, you 
are going to see a disproportionate impact, right, or a 
disparate impact on classes that are overrepresented in that 
type of entity type.
    So, our position is that when we are choosing lender 
intermediaries, the whole point--I was there at the beginning 
of the Community Advantage, but the whole point of the 
Community Advantage Program was, don't try to figure out for 
the private sector entity how to--figure out the business 
model.
    They have established their business model. They are 
already showing you that they have a market niche for whatever 
their reasons are. That is how they make their money and that 
is how they serve their thing.
    And in the case of mission based CDFIs, their primary focus 
is often rural, veteran, minority, women, and they have all 
different types of strategies.
    And so, if we allow them to use the same tool, then they 
will reach a customer and they will enjoy the benefit of that 
tool no different than the bank or credit union that has 
enjoyed exclusivity historically.
    Senator Budd. Thank you for that. Mr. Shoemaker, thanks for 
being here. You know, some of the rules that have been 
discussed today would allow the SBA Administrator to review 
reconsideration of denial requests and make a final decision 
without transparency or justification.
    In other words, it provides the Administrator with the sole 
power to grant 7(a) loans or--regardless of the credit 
creditworthiness of the loan applicant.
    Mr. Shoemaker, should the SBA be required to be transparent 
to both borrowers and lenders by providing written 
justification when making final decisions on reconsideration of 
denial requests?
    Mr. Shoemaker. Certainly, transparency is a key. In regard 
to whether or not the Administrator has the authority to do the 
reconsideration, certainly there is always the chain of command 
that gets to that level. I believe that is actually already in 
place, that she has that ability to make that decision--if you 
want, but go ahead--thank you----
    Mr. Kelley. Yes. So, yes, for reconsiderations, we do--so, 
for example, in the COVID EIDL program, all folks that were 
denied and were seeking reconsideration received a written 
justification for, you know--and we improved in the summer of 
2021 the explanations of things that they need to do to cure--
yes----
    Senator Budd. Mr. Shoemaker, and follow up if we needed, 
Mr. Kelley. Should the SBA Administrator have the authority to 
force a lender to provide a 7(a) loan regardless of the credit 
worthiness of the borrower, or if the application may be 
fraudulent or improper?
    Mr. Shoemaker. Again, the Administrator does have the 
authority to make the loans. I certainly wouldn't advocate for 
a loan----
    Senator Budd. This is about forcing a lender to provide the 
7(a) loan.
    Mr. Shoemaker. Sure. So, I wouldn't advocate for a loan 
that has any of those poor standards to be put out in the--
expose the taxpayer to that risk.
    Mr. Kelley. And speaking on behalf of the Administrator, 
no, we would not want to force a lending intermediary to make a 
loan that they don't want to make.
    Senator Budd. Thank you. I yield back.
    Senator Shaheen. Thank you. Mr. Kelley, the SBA played a 
critical role during the pandemic. I think we could all agree 
with that. And the benefits are still out there.
    We have seen a record number of new small businesses being 
formed over the last two years. But I am concerned that the 
recent affiliation rules that the SBA just finalized will allow 
larger companies and to your loan programs. So, can you explain 
the rationale for that?
    Mr. Kelley. Yes. And I encourage you, if you are able, in 
the second panel, Hilda Kennedy is testifying and she is part 
of a certified development corporation, serves on the board of 
Nabco, which I am sure you are familiar with as a trade 
association.
    Granite State is obviously a huge player in the 504 
program. Beginning in 2011, during the Obama Administration, 
members of the National Association of Development Companies 
came to us coming out of the Great Recession, this is under the 
Obama Administration, and the board said that there are two 
critical challenges, amongst others, in the 504 program in 
terms of being able to do economic development.
    The first was affiliation. The second was the personal 
resource test. During the Obama Administration in 2004, we 
removed the personal resource test with respect to affiliation. 
We did not ultimately go forward with the affiliation change.
    The reason that affiliation has historically been 
complicated for lender and borrower alike is that the concept 
under the Small Business Act, independently owned and operated, 
was viewed as two separate prongs, so independently owned and 
independently operated.
    And what we have chosen to do is interpret the regulation 
as a non-severable clause, comparable to cruel and unusual 
punishment, because based on feedback from practitioners, 
lenders and borrowers, when you ask a small business owner who 
owns the business, the ownership test is key, and what we found 
is that the primary driver of size in our programs is 
determined by the Government contracting and business 
development size standards, which set based on the industry 
standard, either revenue or employee threshold.
    And under that, even counting affiliates, 97 plus percent 
of applicants are considered small, and that is by design. That 
is how the Government contracting, and the lending programs in 
particular.
    In 2010, under the Obama Administration, we passed the law, 
the Small Business Jobs Act, and that included an alternative 
size standard which allowed for a $15.5 million tangible net 
worth and $5 million income test. So, under the lending 
programs, the size standard has always enabled folks to 
qualify.
    What was confusing was the subjectivity of the concept of 
negative control on how a lender, without lawyers, could review 
management agreements that were entered into by third parties.
    And so, beyond the size standards, in practice, how this 
happens is the biggest inhibitor to large entities getting SBA 
debt is because any owner of 20 percent or more has to provide 
a personal, unconditional guarantee, and for medium sized 
entities or publicly traded companies, that is a do not pass 
go.
    And so that critical requirement, together with the fact 
that a credit not available elsewhere borrower, so somebody 
that is--can't find conventional credit, can seek today in the 
junk bond market a 9.3 percent total cost of borrowing versus 
the current rate for an SBA 7(a) or 504 all in fees plus 
interest rate, is closer to 11 percent.
    Senator Shaheen. I have some follow up questions on that 
that I would like to get explain, but I will do those for the 
record because I am almost out of time, and I have another 
question that I am very concerned about. Last August, we talked 
about staffing levels at district offices.
    And your--I think your response to my concern was that it 
was dependent on the Appropriations committee. Well, I sit on 
the Appropriations committee, and I want to be clear that I 
believe the committee thinks that SBA should focus on oversight 
of lending.
    And the SBA now appears to be able to shift resources to 
add staff in order to do that. But while it is doing that, it 
is also cutting district offices and small business development 
centers.
    So can you explain the tradeoff there and how we can make 
sure that our district offices and the small business 
development centers have the resources they need in order to 
operate, because they are the ones who really have boots on the 
ground in our States, who are working with small businesses.
    Mr. Kelley. I apologize. I am the Associate Administrator 
of the Office of Capital Access, and there is a lot of ground 
that I cover with the loan programs, the CARES Act programs.
    I am not the CFO of the SBA, and I am not the Chief of 
Staff. I am not the Administrator, and I don't make the budget 
determinations for the Office of Entrepreneurial Development or 
the Office of Field Operations.
    I also share with you that the district offices, as does 
the Administrator, are a valuable resource to assisting lenders 
and assisting borrowers, finding lenders, and we work through 
those 68 district offices. But I don't really----
    Senator Shaheen. So last year when you told me that that 
was dependent on Appropriations, you didn't have the same 
issues that you do this year?
    Mr. Kelley. Well, it doesn't--doesn't my answer still hold? 
So, what I am saying is--what I meant by that is if you--if the 
appropriators disagree with the President's budget, my 
understanding is that they can appropriate money and in 
different buckets, in salary and expenses.
    And so, all I am trying to say there is that I don't have 
the ability to move money around at the agency. And I don't 
have--obviously, I am not a member of, I don't have the ability 
to appropriate. So that is what I meant by that.
    Senator Shaheen. Well, thank you for that clarification. I 
can assure you that I will be advocating that we adequately 
fund district offices and small business development centers.
    And I hope you will take the message back to the leadership 
at the SBA that this is a priority for the members of this 
committee and I believe for most of the members of Congress, 
because they are the folks who actually are working at, they 
are working with small businesses.
    And while we appreciate the support structure that the 
office gives to those offices, I don't think it ought to be a 
tradeoff that that we should take the operating expenses away 
from them so that work can be done in Washington. So, thank 
you, Mr. Chairman.
    The Chairman. Well, Senator Shaheen knows I strongly 
support the point that she is making. I think this whole 
committee does service in the community, and our States are the 
bedrock of the link between small businesses and the services 
that we can help provide.
    Mr. Shoemaker, the fact that no one asked too many tough 
questions of you, you should take that as a compliment. Just 
want you to know that I do hope, though, that there will be a 
working relationship between SBA and the IG in implementing any 
expansion of supervision over lenders.
    There is a concern about the resources, and I would hope 
that the Inspector General would work with the SBA to make sure 
there is adequate personnel to handle whatever 
responsibilities, whether it is under this new rule or 
legislative legislation that we pass in Congress.
    So, I heard you make that offer of help during your 
testimony. Just want you to know that we are going to be 
requesting that you keep us informed as to your observations.
    And Mr. Kelley, I have asked this question before of the 
SBA, and I always get a positive answer that you always want to 
work with the IG and you are willing to accept their 
recommendations and try to work in a cooperative spirit and let 
the record show you are shaking your head affirmatively. And 
then lastly, let me just point out, that on mission lending, 
the CA program has mission lenders.
    Now, I have confidence in mission lenders, I do, but we 
have a 60 percent requirement in there and it has worked. The 
CA program has a record of exceeding twice as many loans in 
minority small businesses than the CA--than the 7(a) program. 
So, they are reaching these groups that we cannot specify 
because of legal challenges.
    So, my concern is whether the rule itself will preserve 
mission lenders. And without being specific, I see the larger 
loans and the larger lenders may be consuming the mission 
lenders because they don't have the same type of volume and 
profit that the larger lenders have.
    That is my concern, that they could be consumed without 
protection built into the program.
    Mr. Kelley. Yes, so I think it is totally--I share and as 
does the Administrator, and it is a totally legitimate concern 
that we all care about producing a better set of outcomes than 
historically we have.
    And what I want to underscore is, as Administrator Guzman 
indicated to you, we intend to preserve the 60, 40 percent 
threshold in the SOP. Your bill called for 70, 30, as we have 
indicated to staff in conversations that we have had--as she 
did.
    That might be the right threshold. There are other elements 
of your bill, for example, with respect to cost that made total 
sense. And we are putting into the SOP as well. So today the 
loan loss reserve requirement in the Community Advantage 
program is 10 percent.
    We are putting 5 percent. And I do want to clarify 
something. There was a lot of comment, public comments in the 
rulemaking about requiring capital requirements for CA SBLCs 
and requiring fidelity insurance for SBLCs. That was part of 
the 100 comments that you are talking about. That was not in 
the proposed rule.
    We did reflect in the final rule the authority for the 
Administrator, that the person that holds my office or a 
designee, the right to set those thresholds, as we do in the 
for profit SBLCs.
    And the reason that we created a separate class was to 
build off of the 13-year pilot where we provided a temporary 
license, which part of what we waived was the moratorium in 
that program.
    And those lenders can't afford, quite frankly, the 
liquidity to meet the $5 million threshold that the for profit 
SBLCs are require for capital, as you know, and the fidelity 
insurance, which is $2 million and then goes up from there.
    The Chairman. So, lastly, let me mention the affiliation 
rule and my concern.
    Mr. Kelley. Sure.
    The Chairman. And that is, with the determination of 
affiliation now being primarily made by the borrower and the 
lender, rather than the SBA, my concern is that you are liable 
to see large entities through the use of affiliations that they 
really control.
    They may not have the ownership technically because they 
can do that through a lot of different mechanisms and policing 
financial mechanisms with the right to foreclose.
    My concern is that are we now going to be seeing more of 
the resources at SBA going to the larger small businesses 
rather than the smaller or small businesses, and maybe to 
businesses that are well beyond the size limitations through 
the use of affiliation?
    It is an issue that has me greatly concerned because I know 
that you always had the ability to audit, but I don't see, as 
we have seen before, it is not easy to catch this after the 
sources are out.
    Mr. Kelley. So, totally, totally agree. Historically, 
eligibility has been a borrower certification on the form 1919. 
There is a question regarding affiliate--affiliation, for 
example.
    There are subsequent questions to that. And then the lender 
was required in all but the franchise area to be responsible 
for determining whether eligibility had been met. And as is 
indicated, there have been instances over however many years 
there have been audit reports that there have been lenders who 
have approved ineligible loans.
    And those ineligible loans are, if they default, if they 
default in less than 18 months, they are referred to the 
Inspector General. If they default beyond that, right, we have 
the ability to repair the guarantee, lower the guarantee, or 
outright deny it based on the error.
    The only instance where eligibility was determined prior 
to--from 2018 to 2023, a franchise business model could 
prevent--could present the franchise or agreement, and an 
attorney at the SBA would review that franchise or agreement 
for two reasons, affiliation and ineligible business model.
    There are 212 instances from 2018 to 2023 where the 
businesses, the franchisee was disallowed based on ineligible 
business model.
    So, what we are putting in place, and this is what I opened 
with, and I apologize for starting with CARES Act, but what we 
were able to do beginning in Biden-Harris was put in 19 
automated screening filters, which involves NAICS codes, 
affiliation, business address, those type of----
    The Chairman. But here is the change. The changes--you have 
changed the standards on affiliation as well as not having a 
register.
    And when you change the ownership and control issues, it 
makes it easier for a large company through very sophisticated 
agreement to control a franchise but still be able to claim 
that they are independent for the SBA loan.
    That is my concern, and I don't think you are going to be 
able to pick it up under the way you are doing. Let me 
recognize Senator Ernst for any comments she wants to make, or 
questions.
    Senator Ernst. Yes. Thank you, Mr. Chair. And I do agree we 
have seen troubles with the affiliation rules in the last 
couple of years, so I would rather not revisit that.
    As we move forward, we need to make sure we are getting it 
right. So, yes, I don't want you to leave Mr. Shoemaker, or 
Shoemaker, without feeling you have gotten a fair shot at 
discussion today.
    So just very briefly, I am still having a little bit of 
trouble wrapping my mind around the $3 million investment for 
recovering the $71 billion in EIDL.
    Mr. Kelley. To only collect $3 million, to lose $3 million. 
That is what we are explaining----
    Senator Ernst. But there is $71 billion hanging out there 
of EIDL.
    Mr. Kelley. The $71 billion is the amount of outstanding 
debt yet to be repaid in the COVID EIDL program. It hasn't 
defaulted yet. And then in order to get to Treasury offset, we 
have to--we have offered in compromise as far part of the 
repayment period where we can create partial payment plans to 
offset the loss to the taxpayer.
    So, it is--we can estimate that every single COVID EIDL 
loan outstanding under $100,000 is going to default. But we 
have subsidy models where we forecasted, beginning under the 
Trump Administration, what the likelihood of default was, and 
it is based on historic norms.
    And so, in the disaster loan program, we normally see 21 
percent or higher. In the case of 9/11, it was upward--it was 
north of 30 percent, with respect to nationwide for default.
    Senator Ernst. Okay. So, you--and you are saying here today 
you will not be seeking loan forgiveness as SBA for EIDL loans 
under $100,000.
    Mr. Kelley. There is no loan forgiveness allowed in the 
COVID EIDL program.
    Senator Ernst. Nor in the PPP?
    Mr. Kelley. Correct. In PPP, the loan was by design, by 
statute, it was a forgivable loan. In the COVID EIDL loan 
program, there was never an option for forgiveness. So, what I 
am saying is every single borrower has to repay both the PPP 
loan or seek forgiveness. That is another option they have in 
PPP.
    In COVID EIDL, they only have the option to repay. If they 
do not repay, right, normally, in the normal disaster loan and 
in our core programs, we would have personal guarantees, we 
would have collateral, we would have all these other additional 
guardrails for collection, which is why we run a negative 
subsidy, which means we make money for the taxpayer.
    In this program, we don't have that. And then when you look 
at the wage garnishment results, so we can look at the Treasury 
money that has come back to us over the years for loans where 
we actually underwrote the loan, right, in the beginning and 
had these guardrails, and we see we only collected $65,000.
    That is why we are making the decision. We are not making 
the decision to forego offset because we don't want to 
collect--we would collect--there is no reason why we don't want 
to collect the money.
    We were looking at the cost, benefit and saying, why should 
we lose $3 million more dollars of taxpayer money?
    Mr. Shoemaker. If I may----
    Senator Ernst. Yes. And I was going to redirect to you. We 
got into a conversation there, so. Yes, Mr. Shoemaker.
    Mr. Shoemaker [continuing]. Senator Cardin, we do have a 
healthy relationship inside of SBA between SBA and OIG, which 
means that there are areas of disagreement, and this is one. To 
that extent, we disagree that there was a comprehensive cost 
benefit analysis performed relative to the PPP.
    We have ongoing work in EIDL. And as you appropriately 
indicated, the area of risk is $71 billion. That area was 
actually $76.9 billion. My colleague just indicated, you know, 
that this is just a potential risk. The loans are performing.
    Right now, we are seeing more than $60 billion that are 
past due of that $76.9 billion. And we have seen close to $30 
billion that have already defaulted. What that means is that 
that collections will not go forward through the Treasury 
offset program.
    Collections, you know, can always happen. SBA--and Patrick 
is absolutely right. You know, first of all, the borrowers 
should repay. And you know that is first and foremost. And 
there are other avenues and mechanisms to ensure that they 
don't gain access to other benefits.
    There is reporting as an indication and there is lots of 
different vectors that get into do not pay. One of them is the 
Treasury offset program. But what is important about the 
Treasury offset program, you know, unlike the conversation here 
is, Treasury offset is a means of collection.
    That is how you get the money back that has defaulted. You 
know, there are--the cost benefit analysis could show other 
models outside of the Treasury offset program. But our 
contention is that we believe that a comprehensive cost benefit 
analysis needs to be performed.
    There is an open recommendation on the PPP program. I 
expect it will probably be revisiting the same conversation 
when we issue the EIDL report.
    Senator Ernst. And I do understand, Mr. Shoemaker, that 
there is an IG report that is coming out very soon on EIDL 
collections. Is that correct?
    Mr. Shoemaker. That is correct.
    Senator Ernst. Okay. So, all of that will be spelled out, I 
assume, in that report.
    But I think this dialog today is just all the more reason 
that with these rules, we need to make sure that things are 
right. Because if we are seeing fraud in a hastily put together 
program such as EIDL during COVID, you know, we certainly can 
expect to see that through fintechs as well and some of the 
other methods that are coming out through the rules.
    We need to protect the taxpayers against fraud. We want to 
make sure that the dollars are going to those small business 
entities that are truly deserving and need those resources.
    Mr. Shoemaker. Right. The answer on the fintechs is, it 
requires--the lenders require strong oversight and monitoring 
by the SBA. The SBA is the supervised lender. PPP is completely 
different that than 7(a) program.
    You know, there is the 100 percent guarantee. You are 
dealing with self-certification. But one of the things that 
happened, you know, in the use of fintechs as financial 
technology companies is not--you know, it is a little bit of a 
misnomer in this idea of fintechs as just--as a lender.
    The regulated entity, the supervised entity by, you know, 
of SBA basically had contractual agreements that exported some 
of these lending responsibilities, the loans--you know, lending 
service provider. The lending service providers are under the 
oversight of the regulated entity. That regulated entity is 
under the purview of SBA.
    So strong oversight and monitoring within the lending 
community is key to this notion of financial technology 
companies, you know, being part of the program. Financial 
technology has been a part of, you know, the banking industry 
for a long time.
    You know, anytime that anybody logs on and does mobile 
banking, it is probably not the bank that is promulgating that 
technology. It is probably a contractual relationship.
    However, you know, in this model where we are talking 
about, you know, a relationship where an eligibility decision 
or know your customer, bank secrecy regulations, I mean, even 
questions about bank secrecy regulations on whether, you know, 
some of the loan companies may be even covered by it, I think 
that needs to be explicit in that regard.
    Because the know your customer was what was on the front 
end of that financial technology. This is where you see, you 
know, a fraudster hitting 35, 40, hundreds of, you know, loan 
portals to, you know, steal from the taxpayer.
    Mr. Kelley. Yes, I totally agree. And if you look at--so 
first, I worked for a bank prior----
    The Chairman. We are going to need to wrap up.
    Mr. Kelley. Okay.
    Senator Ernst. Yes. I apologize. Thank you.
    The Chairman. No, sorry. We have two witnesses that have 
been extremely patient, and this is not the end of our 
discussion.
    I really do appreciate both of your testimony today has 
been extremely helpful, and I mean that. As I said in the 
beginning, I want to work in a constructive environment. I 
still feel the best ways for Congress to speak to policy.
    And we have been somewhat missing in action on this issue, 
so I hope that we will have a chance to express ourselves and 
we can get something that we are all in agreement with 
Democrats, Republicans, House, Senate, and the White House. 
That will give you greater guidance.
    And I know the frustration of some of the members and 
regards to targeted groups. It frustrates me as well, but we 
have to work within the legal confines to try to achieve these 
objectives. With that, let me thank both of our witnesses and 
we will call up the second panel who has been very, very 
patient.
    By the way, there is a vote going on. I have already cast 
my vote. Senator Ernst has not had a chance to cast that vote 
yet. So, every once in a while, we have to balance also the 
votes on the floor of the Senate. Let me welcome our two 
witnesses.
    First, Mrs. Hilda Kennedy. She is the Founder, President of 
Impact Business Capital, which is a nonprofit certified lender 
of SBA that participates in the SBA Community Advantage pilot 
program.
    Prior to founding AmPac Capital, Mrs. Kennedy worked in 
local Government in California. She has also served on the 
White House and SBA Council on Underserved Communities, and 
currently serves as the President elect for the National 
Association of Women Business Owners California.
    Ms. Kennedy received her degree from the University of 
California at Berkeley, completed a postgraduate fellowship 
with the Corow Foundation, and completed a master's coursework 
at the University of San Francisco.
    Our second witness is Mr. Chris Pilkerton, serves as the 
Chief Legal Officer for Accion Opportunity Fund, which is the 
nation's largest CDFI concentrating on small business support 
for underserved communities.
    Prior to his current role, he served as Senior Policy 
Advisor at the White House, and Executive Director of the White 
House Opportunity Now Initiative, as well as Acting 
Administrator and General Counsel of the SBA during the Trump 
Administration.
    He holds a BA from Fairfield University, an MBA from 
Columbia University, a J.D. from Catholic University School of 
Law. We will start with Ms. Kennedy.
    By the way, your statements all will be made part of the 
record, without objection. You may proceed as you wish.

 STATEMENT OF HILDA KENNEDY, FOUNDER/PRESIDENT, AMPAC BUSINESS 
                  CAPITAL, ONTARIO, CALIFORNIA

    Ms. Kennedy. Thank you very much. Chairman Cardin and 
Ranking Member Ernst in her absence right now, distinguished 
members of the committee in their absence, good afternoon and 
thank you for having us today.
    As President and Founder of AmPac Tri-State CDC in Ontario, 
California, as stated, we are an economic development and 
mission driven lender, and we participate in the SBA 504 
Community Advantage and microloan programs, as well as a CDFI.
    In fact, as a 504 lender, we have done a little over $1 
billion in SBA 504 lending in the past 16 years, and we have on 
balance sheet a little over $9.8 million in loans through our 
community impact loan programs from $5,000 to $350,000.
    And so, we care deeply about expanding access to SBA 
lending programs, and my faith is at the root of that. Knowing 
that with God all things are possible, we approach our work 
from an it is possible mentality, creating possibilities for 
the communities who need it most through entrepreneurship, 
small business formation, job creation, and building 
generational wealth.
    And that is why I believe so strongly that Congress and SBA 
must address the inequities for underserved businesses and must 
work in concert and complement each other, and that is my most 
urgent message today. Looking at the tenets outlined in the 
small business that it states, and I quote, ``that the 
opportunity for full participation in our free enterprise is 
essential if we are to obtain social and economic equality and 
improve the functioning of our national economy.''
    So on this 70th anniversary of the Small Business Act of 
1953, I believe the Community Advantage Loan Program Permanency 
Act of 2022, helmed by you Chairman Cardin, and its companion 
House bill, championed by my Congresswoman Judy Chu, and the 
SBA's expected May 12th launch of the final rule with the 
Community Advantage Small Business Lending License, and the 
other SBLC licenses, are parallel efforts that can provide the 
traction to finally hit the stride we have been seeking to 
elevate our nation.
    Chairman Cardin and Representative Chu have been seeking to 
diligently codify the CA program, and I thank you for your 
dedication to these communities that are often overlooked. 
Equally, I think Ranking Member Ernst, whose leadership and 
commitment to increasing access for rural small businesses, 
with the mission of the CA program.
    Just an example of one of our CA borrowers, Dr. Zuniga and 
Dr. Espinosa, they were five-year doctors. They had been 
practicing under a physician, and they wanted to buy their 
building, or they wanted to do a small business loan to start 
their practice, but they couldn't with their bank that they 
thought they had a relationship with.
    So, they came to us. They were turned down because they a 
startup. They had a lot of student loans, and they had recently 
purchased their home. But because of our work as a Community 
Advantage lender, we were able to give them a loan because of 
the transformational work of the community advantage reforms 
that happened back in March.
    And that really made a difference and I believe was the 
first and necessary step for the rulemaking process in 
considering this CA, SBLC, and other SBLC licenses. You will 
have more details in my written remarks, but I want to close by 
highlighting my recommendations in my remarks.
    First, I believe we need to shift the narrative from 
either, or to welcoming all efforts to improve access to SBA's 
lending programs for underserved communities, which was 
intended in the Small Business Act.
    Second, Congress should pass your bill, Chairman Cardin, 
and the House bill to make Community Advantage a permanent 
offering of SBA. Third, Congress should capitalize on 
challenges faced by mission-based lenders in accessing capital 
to provide to underserved communities.
    And finally, SBA should apply provisions from Chairman 
Cardin's bill in areas where the SBA, SBLC, and SBLC rules lack 
clarity, such as target market cap, capital requirements, loan 
loss, reserve requirements. Lenders need a bright line and 
metrics so that we can collectively know what success looks 
like.
    AmPac and the mission lending community will continue 
helping businesses access capital through the SBA's lending 
programs, and we look forward to working with the committee and 
SBA to create more opportunities for underserved businesses. 
Thank you.
    [The prepared statement of Ms. Kennedy follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    The Chairman. Thank you very much for your testimony. Mr. 
Pilkerton.

   STATEMENT OF CHRIS PILKERTON, CHIEF LEGAL OFFICER, ACCION 
              OPPORTUNITY FUND, TILGHMAN, MARYLAND

    Mr. Pilkerton. Thank you, Chairman Cardin, and thank you, 
the Ranking Member, Ernst, for holding this committee meeting 
today.
    I am honored to be with Ms. Kennedy and to receive the 
invitation to this hearing, because I believe the thoughtful 
support for small businesses must be a bipartisan priority. 
Over the last several years, I have spent my career focusing on 
issues related to the small business community, with a 
particular focus on underserved populations.
    I served as the GC at the U.S. Small Business 
Administration under Linda McMahon, serving from 2017 to 2020, 
as well as the Acting Administrator of the agency from April 
2019 into early 2020.
    During my tenure as Acting Administrator, I was 
particularly proud of our efforts to lead workforce development 
programs, for far too often, marginalized citizens, such as 
those returning from incarceration, young adults aging out of 
foster care, as well as workforce opportunities for disabled 
individuals.
    In March of 2020, I was asked to join the White House to 
lead a program called the Opportunity Now Initiative, which 
included significant outreach to underserved communities on the 
topics of access to capital and technical assistance through 
State and local officials, as well as webinars with minority 
focused trades such as the National Minority Supplier Diversity 
Council.
    Since leaving Government, I have continued this work in 
various capacities. First and foremost, I serve as the Chief 
Legal Officer for Accion Opportunity Fund, the leading 
nonprofit community development financial institution focused 
on small business lending to communities of color, low income--
low to moderate income borrowers all across the country, and 
women.
    I have also co-founded and developed an initiative called 
the Small Business Corps, a private sector led program to 
provide underserved small businesses with specific, goal 
focused technical support provided by fellows who are recent 
college and business school graduates.
    That program is housed at the Georgetown University 
McDonough School of Business and includes DMV engagement from 
schools such as Georgetown, Johns Hopkins, Old Dominion, as 
well as HBCUs, Howard, Morgan State and Norfolk State.
    I have also worked closely with the performing artist Ice 
Cube and his work to identify and secure opportunities for 
black owned businesses in the corporate supply chain.
    Our most recent success was a commitment from the National 
Football League to provide $150 million in contract 
opportunities to several black owned businesses, including 
Fearless, a technology company located in Baltimore, Maryland, 
that has gone on to incubate other minority and women owned 
companies in that city.
    We all agree that increased access to capital for 
underserved communities is important, but like anything, there 
is the goal and the execution of the plan to achieve that goal. 
I will begin by addressing the rule regarding the lifting of 
the SBLC moratorium and the creation of the new mission based 
SBLC category.
    While I understand the intention of the rule, it does not 
speak to the critical need to establish a consistent approach 
to responsible under review, but rather highlights that the 
agency needs flexibility in its lender evaluation to address 
unforeseen circumstances.
    While I appreciate the need to be flexible on certain 
components of such a program, underserved borrowers need that 
certainty of publicly articulated standards to ensure they are 
dealing with responsible and vetted lenders.
    As SBA Inspector General Hannibal said, for whom I have 
tremendous respect, in a House hearing last week in response to 
this issue, he said he has concerns with the inclusion of any 
lender that doesn't have clear rules, an internal control 
structure, and a proper oversight mechanism.
    In short, appropriate inspection and oversight on the front 
end can limit investigations, enforcement proceedings, and harm 
to borrowers on the back end.
    As such, I recommend that in consultation with Congress, 
the implementation of this rule will be delayed until there has 
been an independent study, a business plan, if you will, about 
the necessary guidelines and procedures that should be in place 
in order to secure a safe and responsible lending environment 
for those businesses and provide clear and consistent rules for 
those participating lenders that may, in fact, be new to the 
SBA landscape.
    When it comes to lending to underserved communities, we 
have frameworks to examine, such as the Treasury's CDFI pending 
certification program rules that are already in place and would 
serve as valuable data points for consideration.
    All this as set forth in the Responsible Business Lending 
Coalition letter for comment on this rule. I also have concerns 
with the bandwidth of the agency to oversee the influx of 
program participants contemplated in this rule.
    The SBA career staff are some of the most dedicated public 
servants I have ever worked with, but with limited resources, 
they may very well be stretched beyond their capacity. The 
agency needs to ensure that the staff has the resources they 
need to implement a program that can sensibly be regulated in a 
consistent fashion.
    I believe a thoughtful, independent analysis could 
calculate the required resources and provide necessary 
confidence to the marketplace. As to the rule on affiliation, 
Senator Cardin, I share your concern. I think it is important 
that this body consider the potential unintended consequences 
of removing this standard from SBA's analysis.
    The reason the rules are in place is to ensure that 
taxpayer guarantees are truly going to the statutorily 
mandated, independently owned and operated small businesses 
that need this unique Government program, and that it is not a 
subsidy program for larger corporations who already have a 
competitive advantage.
    The combination of these changes to the program as 
currently written, coupled with the trusted imprimatur of SBA, 
could undoubtedly result in a significant flow of capital.
    But I believe a thoughtful, independent study around these 
programs would help ensure the integrity of the admitted 
lenders, maximize the flow of responsible loans to small 
businesses, and minimize the potential for fraud.
    The results of such an analysis could ensure that Congress, 
the agency, and the American taxpayer have clarity on how the 
scope of this program can truly support our country's 
underserved communities in a way that is both responsive and 
responsible. Thank you very much.
    [The prepared statement of Mr. Pilkerton follows:]

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    The Chairman. Well, let me thank both of you. Mr. 
Pilkerton, good staff work. You mentioned Fearless. That was 
a--you got my attention early in your testimony.
    To both of you, your testimonies are extremely helpful. And 
I thank you for your patience because I think your 
contributions are so valuable.
    Ms. Kennedy, I want to agree with you. Look, the Biden 
Administration extended the CA program and gave it greater 
life. So, we are very appreciative of what they have done. This 
rule has the benefit of finding a home for the CA program, 
which is something that I think is important.
    That is why I have introduced legislation that I did. So, I 
think we are all in the same path here. It is not either or, it 
is how we get it done right.
    So, I appreciate the way that you said that. And Mr. 
Pilkerton, flexibility versus certainty. You are absolutely 
right. I can tell you certainty is critically important. If you 
are going to be in this business, you need to know what the 
rules are.
    You can't say, well, we want this to go right, and we will 
look at your individual case by case and determine whether we 
think it meets that standard. That is not the way you can get 
partners that are your partners. You are not going to enter 
that field.
    So, I agree with the points that both of you have reached. 
But here is my point. I am trying to make this as distinct as 
possible. This rule is going into effect and most likely will 
remain in effect.
    I think we have a responsibility to do exactly what the two 
of you have said, and that is by legislation. And we are going 
to work very hard to get legislation done.
    So, to Mrs. Kennedy, how do we--what additions would you 
like to see Congress impose to make sure that we are focusing 
on those who need, the underserved--focusing on the smaller of 
the small businesses?
    What changes would you like to see Congress entertain in 
order to make that possible? I appreciate your support of my 
legislation. I think we should make the CA program permanent. 
It is not inconsistent with the rule.
    So, I think we can do that--we can consider that, but what 
else should we be doing to make sure that we are focused on the 
goal of helping those who really need the help?
    Ms. Kennedy. Thank you, Senator--Chairman Cardin. I think 
that you--it is also in the legislation, really codifying 
standards.
    You know, lenders do need a bright line test. We do need to 
document how do we know we have been successful. So, the 
elements of loan loss reserve, the elements of the cash 
required, and then the definition of underserved, especially 
the definition of underserved.
    The fact is Community Advantage today does have a 
threshold--60 percent of your loan portfolio has to go to 
underserved communities. And I just believe if you aim at 
nothing, you will hit it every time.
    So, if you don't have guidelines, you are going to hit 
that. But if you do have guidelines, you are going to hit that. 
And that is what CA does today, and that is what has to happen 
going forward.
    So, codifying that legislatively is the right way to move 
that forward because discretion is discretion. And so, in the 
next Administration, that discretion may look different, but if 
we have the legislation to back that up, I think it is hugely 
significant and I appreciate the direction and your commitment 
to that.
    The Chairman. Thank you. Mr. Pilkerton, let me ask you a 
question of what would you recommend as we should take up for 
certainty?
    I mean, you mentioned the concern about knowing the rules. 
What rules are important for Congress to weigh in, to make 
clear that is not in the proposed rule? And then the second 
question I would ask deals with the affiliation rules.
    There are some good things in the affiliation rule, trying 
to make it streamlined just a little bit. What do you think--
what protections do we need to add to make it clear that we 
don't want the big corporations being able to come in under 
this revised rule?
    Mr. Pilkerton. So, I will start with what the agency I 
think should be looking at, as far as making loans in 
underserved communities. I think that this rule as written is 
going to have a lot of capital that goes into the system. And I 
think everybody touched on this.
    My biggest concern about these rules is OCRM, right, the 
Office of Credit Risk Management. They are the cop on the beat. 
You saw the Inspector General here today. They are the cop 
after the fact.
    So, giving OCRM what they need is really, really critical. 
And I think that is where an independent study could be 
incredibly helpful. Let's think about what just happened to the 
agency.
    For the last two years, the SBA became the tip of the spear 
on almost $1 trillion program. You have 2,000 people or so that 
work there. Many of them worked there for decades, and they 
were ready to retire in 2019, into 2020. They didn't. They 
didn't because they wanted to actually make it through PPP, 
help their colleagues, and help the American people. But they 
have retired.
    And so, you have got a lot of institutional knowledge, 
decades, I mean, probably hundreds and hundreds of years of SBA 
experience that has left because they have, you know, obviously 
had the right to and it has been good for them to retire. I 
really think OCRM should be a huge focus of this committee, in 
part too, because the rule doesn't address a lot of these rules 
that were put in place.
    I had the opportunity to listen to the earlier testimony. I 
learned stuff about what is going to be happening in these 
programs. And without putting that information into the notice 
and comment period, the public doesn't have the opportunity to 
opine on that.
    So, I think that is going to be a critical piece for the 
agency and for this committee. The second thing I will say 
about affiliation. I want to give you an example of something 
that we did in 2018. It was called the Franchise Directory, and 
Mr. Kelley made reference to it.
    Basically, what was happening was these borrowers were 
doing these eligibility reviews and you were getting 
inconsistent analysis. The people in my office when I was in 
the Office of General Counsel ended up putting together a list 
that got, I believe it was over 4,000 different franchises.
    We reviewed all of those agreements, and if the agreements 
didn't meet the standard that franchises were separate from the 
franchisors, then they would actually sign an addendum to the 
agreement to ensure that they were eligible. The thing about 
franchises is there a huge opportunity for underserved 
communities.
    A number of folks that actually work in a franchise, a 
really high percentage of those will go on to own a franchise. 
And the reason it was good policy was because if I wanted to 
open up a restaurant, for example, as a borrower, I could see 
there is that sandwich shop I want to open up and I could go 
into an SBA lender and say, look, it is on the franchise 
directory, so you have to make me that loan, assuming I meet 
all the other requirements.
    And that lender had the certainty of knowing that if I 
defaulted on that loan, they would get the SBA guarantee. So, I 
think it is really important. And the way the rules written 
now, I am very concerned that there is a bit of a slippery 
slope, particularly in that space.
    The Chairman. Thank you. Senator Ernst.
    Senator Ernst. Yes, thank you. This has been just a great 
discussion this afternoon. And I thank you both for being here 
and sharing your thoughts with us. Mr. Pilkerton, you have 
already answered a number of my questions.
    Senator Cardin had asked a number of those as well. So, I 
will move on to you, Ms. Kennedy. As part of the SBA's defense 
of the affiliation rule, part of that defense has been the 504 
lenders welcome the underwriting and affiliation changes.
    It is important for all of us to differentiate between what 
is a 504 and what is a 7(a) loan program. The 504 loan program 
is an economic development program with job creation goals, and 
nearly every 504 loan receives approval from SBA before those 
funds are disbursed.
    So, this rule will create a more of a one size fits all 
approach to underwriting all of those SBA 7(a) loans and 504 
loans. So, can you walk us through the 504 underwriting 
process, and why these changes might be acceptable for 504 but 
not for 7(a)?
    Ms. Kennedy. Thank you, Ranking Member Ernst. I want to 
thank you for this question because it is a really important 
question and a really critical distinction between the 504 
program and the 7(a) program, the 7(a) being more of a general 
purpose loan program--the 7(a) program, and the 504 being 
targeted for job creation and economic development through 
ownership of commercial real estate and equipment.
    And that is significantly a difference with the 504 
program, in that we are required statutorily to be an economic 
development and job creation program. And there are five 
components.
    There are several other differences between the programs, 
but I am going to focus on your question related to 
underwriting. There are five components of the underwriting 
program for 504 in this public private, partnership.
    So, there is a first trust deed lender, and then there is 
the SBA second. That is where the CDC, or certified development 
company--both lenders, underwrite the loans. So, the first 
trusted lender underwrites their portion of the loan.
    Typically, up to 50 percent of the loan amount, could be 
more. And it has to go through their underwriting, and 
underwriting policies according to their regulations. The SBA 
504 portion by the CDC is underwritten by the CDC, and then it 
goes to an independent loan committee of the CDC that must have 
at least two commercially licensed bankers on that committee.
    And then that loan is sent to the SBA to review for 
eligibility and credit matters. So you can see it has several 
different steps in the underwriting process to ensure that it 
meets all of the eligibility requirements of the program, and 
so addressing those matters associated with the affiliation, 
there is no compromise of the loan in terms of eligibility and 
credit, and in terms of meeting the SBA size standards so that 
we are really targeting those businesses that are small under 
the SBA size standards.
    Senator Ernst. Yes. Thank you very much. And, Mr. Chair, I 
will go ahead and yield back the rest of my time. Thank you.
    The Chairman. Once again, let me thank both of you. We are 
going to be reaching out to you as we are working together. 
There is going to be a process in regards to this rule, and I 
think both of you can be extremely helpful to us.
    So, I hope that we can have communications beyond this 
hearing as we try to deal with this, because I think we all 
have the same objectives. We are all trying to achieve the same 
thing.
    I think Senator Ernst and I want to see more certainty. We 
want to see more direction. We think it is our responsibility. 
We are disappointed that the rule didn't provide that.
    And we understand the Administration will correct some of 
that on the SOPs, but it would be better, the more definitive 
legislations. The best second best is by regulation. So, we are 
going to try to correct that as we go forward.
    We will keep the record of the committee open for seven 
days for additional questions that may be asked by members of 
the committee.
    I expect that that will be more directed towards the first 
two witnesses and the second two witnesses, but we would ask 
that they be promptly responded to that.
    And if there is no further business, the committee will 
stand adjourned, with thanks.
    Senator Ernst. Thank you very much.
    [Whereupon, at 5:30 p.m., the hearing was adjourned.]

      

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