504 and 7(a) Loan Programs Updates, 12633-12646 [2013-04221]
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12633
Proposed Rules
Federal Register
Vol. 78, No. 37
Monday, February 25, 2013
This section of the FEDERAL REGISTER
contains notices to the public of the proposed
issuance of rules and regulations. The
purpose of these notices is to give interested
persons an opportunity to participate in the
rule making prior to the adoption of the final
rules.
SMALL BUSINESS ADMINISTRATION
13 CFR Parts 120 and 121
RIN 3245–AG04
504 and 7(a) Loan Programs Updates
U.S. Small Business
Administration.
ACTION: Proposed rule.
AGENCY:
The U.S. Small Business
Administration (‘‘SBA’’) has determined
that changing conditions in the
American economy and persistent high
levels of unemployment compel the
agency to seek ways to improve access
to its two flagship business lending
programs: the 504 Loan Program and the
7(a) Loan Program. The purpose of this
proposed rulemaking is to reinvigorate
these programs as vital tools for creating
and preserving American jobs. SBA
proposes to strip away regulatory
restrictions that detract from the 504
Loan Program’s core job creation
mission as well as the 7(a) Loan
Program’s positive job creation impact
on the American economy. The 504
Loan Program and 7(a) Loan Program
are SBA’s two primary business loan
programs authorized under the Small
Business Investment Act of 1958 and
the Small Business Act, respectively.
This proposed rule will enhance job
creation through increasing eligibility
for loans under SBA’s business loan
programs, including its Microloan
Program, and by modifying certain
program participant requirements
applicable to the 504 Loan Program. In
addition, SBA proposes to revise
Certified Development Company (CDC)
operational requirements to clarify
certain existing regulations.
DATES: SBA must receive comments to
this proposed rule on or before April 26,
2013.
ADDRESSES: You may submit comments,
identified by RIN: 3245–AG04 by any of
the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
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SUMMARY:
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• Email: ocareg2013@sba.gov.
Include RIN 3245–AG04 in the subject
line of the message.
• Mail: Patrick Kelley, Deputy
Associate Administrator, Attention:
Linda Reilly, Chief, 504 Program
Branch, Office of Capital Access, U.S.
Small Business Administration, 409
Third Street SW., Washington, DC
20416.
• Hand Delivery/Courier: Patrick
Kelley, Deputy Associate Administrator,
Attention: Linda Reilly, Chief, 504
Program Branch, Office of Capital
Access, U.S. Small Business
Administration, 409 Third Street SW.,
Washington, DC 20416.
SBA will post all comments on
www.regulations.gov. If you wish to
submit confidential business
information (CBI) as defined in the User
Notice at www.regulations.gov, please
submit the information to Patrick
Kelley, Deputy Associate Administrator,
Attention: Linda Reilly, Chief, 504
Program Branch, Office of Capital
Access, U.S. Small Business
Administration, 409 Third Street SW.,
Washington, DC 20416, or send an email
to ocareg2013@sba.gov. Highlight the
information that you consider to be CBI
and explain why you believe SBA
should hold this information as
confidential. SBA will review the
information and make the final
determination whether it will publish
the information.
FOR FURTHER INFORMATION CONTACT:
Linda Reilly, Chief, 504 Program
Branch, Office of Financial Assistance,
Small Business Administration, 409 3rd
Street SW., Washington, DC 20416;
telephone 202–205–9949.
SUPPLEMENTARY INFORMATION:
I. Background Information
Executive Order 13563 directs
agencies to ensure that regulations are
accessible, consistent, written in plain
language, and easy to understand in
order to foster economic growth and job
creation. Executive Order 13563
provides that our regulatory system
‘‘must identify and use the best, most
innovative, and least burdensome tools
for achieving regulatory ends.’’
(emphasis added). Executive Order
13563 further provides that ‘‘[t]o
facilitate the periodic review of existing
significant regulations, agencies shall
consider how best to promote
retrospective analysis of rules that may
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be outmoded, ineffective, insufficient,
or excessively burdensome, and to
modify, streamline, expand, or repeal
them in accordance with what has been
learned.’’ (emphasis added). SBA has
reviewed its regulations with regard to
the loan programs and is proposing a
number of amendments and revisions to
accomplish this goal.
SBA’s primary business loan
programs are the 504 Loan Program (the
‘‘504 Loan Program’’), authorized
pursuant to Title V of the Small
Business Investment Act of 1958, 15
U.S.C. 695 et seq., and the 7(a) Loan
Program (the ‘‘7(a) Loan Program’’)
authorized pursuant to Section 7(a) of
the Small Business Act, 15 U.S.C. 631
et seq. (collectively referred to as the
‘‘504 and 7(a) Loan Programs’’). A
description of each loan program is set
forth below.
A. SBA’s 504 Loan Program
The 504 Loan Program is an SBA
financing program established to target
companies in their growth cycle to
create jobs, expand the tax base, and
improve American communities.
Specifically, the core mission of the 504
Loan Program is to provide long-term
fixed asset financing to small businesses
for the purchase or improvement of
land, buildings, and major equipment
purchases, in an effort to facilitate the
creation of jobs and local economic
development.
Under the 504 Loan Program, loans
are made to small business applicants
by Certified Development Companies
(‘‘CDCs’’), which are SBA’s communitybased partners for providing 504 Loans.
With the exception of several for-profit
CDCs grandfathered into the 504 Loan
Program, a CDC is a nonprofit
corporation that promotes economic
development within its community
through 504 Loans. CDCs are certified
and regulated by the SBA, and work
with SBA and participating lenders
(typically banks) to provide financing to
small businesses, which in turn,
accomplishes the goal of community
economic development. There are over
260 CDCs nationwide each with a
defined Area of Operations covering a
specific geographic area. The Area of
Operation for most CDCs is the state in
which they are incorporated.
Transactions under the 504 Loan
Program are typically structured with a
CDC providing 40% of the total project
costs (with SBA’s guarantee assistance),
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a participating lender covering up to
50% of the total project costs, and the
borrower contributing 10% of the
project costs. Under certain
circumstances, a borrower may be
required to contribute up to 20% of the
total project costs.
In sum, the 504 Loan Program is an
economic development tool and its
success is measured, in large part, by
the number of jobs it preserves and
creates. In FY 2012, the agency made
7,047 loans through the 504 Loan
Program, for a total volume of $4.4
billion, which led to the creation and/
or retention of almost 80,000 jobs. SBA
estimates that the proposed regulation
revisions, set forth in detail below, will
result in approximately 140,000
additional jobs created/retained over a
five-year period. These additional jobs
created/retained are based on an
estimated 47,000 loans being made
between FY 2013 and FY 2017, with an
estimated total dollar volume of almost
$30 billion and the creation/retention of
over 500,000 jobs over the five-year
period. The changes proposed primarily
with regard to the Personal Resources
Test and affiliation will increase the
number of eligible borrowers.
B. SBA’s 7(a) Loan Program
The 7(a) Loan Program’s main
purpose is to help eligible small
businesses obtain credit when they
cannot obtain ‘‘credit elsewhere.’’ In
addition, the agency recognizes that the
7(a) Loan Program is also an important
engine for job creation. The 7(a) Loan
Program provides financing for general
business purposes through the agency’s
guaranty of a loan made by an approved
lender. Currently, there are
approximately 4,500 lenders
participating in the 7(a) Loan Program.
Below is a summary of the proposed
changes to these business loan
programs. The agency requests
comments on all of the proposed
regulatory revisions in this proposed
rule, and on any related issues affecting
the 7(a) Loan Program or the 504 Loan
Program. SBA’s intent is to revitalize the
use of both loan programs as an engine
of job retention and growth in an effort
to use ‘‘the best, most innovative, and
least burdensome tools for achieving
regulatory ends * * * and seek to
improve, the actual results of regulatory
requirements’’ in accordance with
Executive Order 13563.
II. Summary of Proposed Business Loan
Program Changes
Though SBA’s business loan programs
differ in mission and focus, these loan
programs share fundamental eligibility
criteria and overlapping objectives. The
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goal of the proposed rule is to
reinvigorate the business loan programs
by eliminating unnecessary compliance
burdens and loan eligibility restrictions
in an effort to make necessary
adjustments to increase lender
accessibility without sacrificing
program integrity. The major changes
that SBA is proposing are described
below, including changes relating to
affiliation principles, the personal
resources test, the 9-month rule for the
504 Loan Program, and CDC operational
and organizational requirements.
Additional changes are described in the
section-by-section analysis.
A. Affiliation as Applied to the Business
Loan Programs
Under SBA’s regulations, applicants
for an SBA loan must be small under
SBA’s size requirements (including
affiliates) to be eligible for an SBA
business loan. 13 CFR 120.100. When an
entity is determined to be affiliated with
an applicant, the entity’s receipts and
employees are added to those of the
applicant for purposes of determining
its size. Thus, certain businesses are
deemed to be ineligible for assistance
because they are not deemed to be
‘‘small’’ for program purposes by virtue
of their combined size with affiliated
entities.
SBA’s regulations, at § 121.103, set
forth the agency’s principles of
affiliation. Generally, affiliation exists
when one business controls or has the
power to control another or when a
third party (or parties) controls or has
the power to control both businesses.
Control may arise through ownership,
management, or other relationships or
interactions between the parties.
Affiliation is an important issue when
determining size because SBA counts
the receipts, employees, or other
measure of the business, for all of a
small business’ domestic and foreign
affiliates, regardless of whether the
affiliates are organized for profit (13
CFR 121.103(a)(6)). SBA’s affiliation
rules generally apply to all Federal
programs for which a business must
qualify as ‘‘small,’’ including SBA’s
Government Contracting or Business
Development programs, business loan
programs and grant programs.
Therefore, applicants for financing
under the 504 Loan Program, 7(a) Loan
Program or Microloan Program must
qualify as ‘‘small businesses’’ taking
into consideration the employees,
receipts, and other measures of business
of the applicant and all of the
applicant’s affiliates.
SBA believes that, in general, most of
the principles of affiliation set forth in
§ 121.103 appropriately apply to the
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agency’s business loan programs.
However, SBA believes that certain
affiliation principles—such as those
concerning newly organized concerns—
are not applicable to the 504 and 7(a)
Loan Programs or the Microloan
Program because assisting in the
creation of new small businesses serves
the purpose of the business loan
programs. In addition, SBA is seeking to
create a simple, bright-line test for
business loan program applicants when
determining eligibility with respect to
size and affiliation. By eliminating or
modifying certain affiliation principles,
this proposed rule would also
significantly reduce the burden on
applicants of providing affiliation
documentation. As described below,
SBA is proposing to add a new
§ 121.302 to identify the principles of
affiliation that should apply to the
business loan programs in place of the
affiliation principles set forth in
§ 121.103, and invites comments on
these proposed changes.
With respect to determining affiliation
based on ownership, the following
principles currently apply to the
business loan programs: (1) If the
business concern’s stock is widely held
and no single block of stock is large as
compared to others, the board of
directors and Chief Executive Officer or
President is deemed to have the power
to control the business, absent evidence
showing otherwise; (2) if two or more
persons (including any individual,
concern or other entity) each owns,
controls or has the power to control less
than 50% of the concern’s voting stock,
and the blocks of stock are equal or
approximately equal in size and the
blocks of stock are large in the aggregate
as compared with any other stock
holding, SBA presumes that each person
controls or has the power to control the
business concern whose size is at issue;
or (3) if a person (including any
individual, concern or other entity)
owns, or has the power to control, 50
percent or more of a concern’s voting
stock, or a block of voting stock which
is large compared to other outstanding
blocks of voting stock, such person
controls or has the power to control the
business concern. It is also important to
note that SBA’s current affiliation rules
(§ 121.103(a)(3)) may find affiliation
based on ‘‘affirmative control’’ (e.g.,
owning more than 50% of the voting
stock of a company) as well as ‘‘negative
control’’ (e.g., owning less than 50% but
still having the ability to block votes).
SBA is proposing to amend the
principles described above for affiliation
based on ownership in a manner similar
to changes recently proposed by SBA for
the Small Business Innovation Research
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and Small Business Technology
Transfer programs (77 FR 28520, May
15, 2012). Under these proposed
changes, SBA would deem the Chief
Executive Officer (CEO) or President of
the concern (or other officers, managing
members, partners, or directors who
control the management of the concern)
to control the concern when no one
person owns or has the power to control
more than 50% of the voting equity of
the concern. SBA believes that for
purposes of the agency’s business loan
programs, control in this situation
would rest with the managing parties
identified above since it is those parties
that are truly running the concern. If
one person does own or has the power
to control more than 50% of the voting
equity of the concern, that person is in
control of the concern for purposes of
determining affiliation. In addition, if
two or more persons collectively own or
have the power to control more than
50% of the voting equity of two or more
concerns (the ‘‘collective owners’’), then
there would be affiliation between such
concerns and between each concern and
each collective owner. In addition, in
this proposed rule, SBA refers to 50%
ownership or equity without
designating that it is ‘‘stock’’ ownership
because not all business loan applicants
are corporations with ownership
determined through stock issuance. SBA
is also proposing to not consider
‘‘negative control,’’ by itself, as a factor
in determining affiliation.
SBA requests comments on this
proposed rule as it relates to business
loan applicants where no person owns
a majority of the applicant, and whether
SBA should: (1) Retain the current
affiliation rule with respect to minority
holdings and, if so, whether it should
set forth a specific threshold by which
it will find control and therefore
affiliation (e.g., if a person owns 33% or
more of the company) in order to create
a bright-line test for applicants; (2) find
affiliation, as proposed, if two or more
persons or concerns collectively own
more than 50% of the applicant, and the
same persons or concerns collectively
own more than 50% of any other
company or entity; or (3) implement a
rule setting forth both options (1) and
(2) above.
In addition to incorporating the above
principles of affiliation based on
ownership, SBA is proposing to
incorporate in § 121.302(c) and (e),
respectively, the existing affiliation
principles currently contained in
§ 121.103(c) (Affiliation arising under
stock options, convertible securities,
and agreements to merge) and
§ 121.103(i) (Affiliation based on
franchise and license agreements). SBA
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is also proposing to incorporate in
§ 121.302(d), with slight modifications,
the existing affiliation principles
currently contained in § 121.103(e)
(Affiliation based on common
management).
In addition to the above proposed
change, SBA proposes changing current
affiliation principles relating to the
following three areas: identity of
interest; newly organized concerns; and
joint ventures. First, with respect to
affiliation based on identity of interest,
SBA proposes to not apply the current
affiliation principle relating to identity
of interest set forth in § 121.103(f) to the
504 Loan Program, the 7(a) Loan
Program or the Microloan Program.
Affiliation through identity of interest
often is found between business
partners, family members, and
employers. SBA is aware that an
applicant may have relationships with
former employers, business partners,
friends, or family members which can
be important to the business success of
the applicant. These relationships often
strengthen the creditworthiness of the
applicant by providing the applicant
with more resources from which to
draw, thus lowering taxpayer risk while
increasing the job creation and small
business growth missions of the
business loan programs. It is the
agency’s view that these relationships
are common and, in the context of the
business loan programs, should not
prevent an applicant from
independently operating and growing a
business and creating jobs. Moreover,
small businesses would have less of a
financial incentive to use family
members or former employees as
business ‘‘fronts’’ to obtain a business
loan than to obtain a grant or bid on a
contract under a government set-aside
program. Businesses would appear to
have little incentive to incur debt
through the use of such tactics because,
unlike a grant or contract, the debt must
eventually be repaid. Weighing all of
these factors, the agency proposes to
end application of the identity of
interest affiliation rule to the business
loan programs; however, it strongly
encourages comment on this proposal
especially as it relates to potential
threats to business loan program
integrity.
Second, with respect to affiliation
based on a newly organized concern,
SBA proposes to not apply the current
affiliation principle relating to newly
organized concerns set forth in
§ 121.103(g) to the 504 Loan Program,
the 7(a) Loan Program or the Microloan
Program. The agency proposes this
change for substantially the same
reasons it is proposing the change
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related to identity of ownership
discussed above. If employees of a
former employer form a new business
and the former employer does not have
ownership control of the new business,
SBA believes that for purposes of the
business loan programs the former
employees will generally have sufficient
independence and control of the newly
formed business to not be affiliated with
the former employer. The newly
organized concern principle is needed
in the agency’s grant and contracting
programs to prevent large companies
from misrepresenting themselves as
small through a shell company in order
to obtain a grant or lucrative
government contract intended as a small
business set aside. However, the
principle is not necessary in the
business loan programs because larger
companies have greater access to private
sector capital sources than small
businesses and would have little need to
form a new concern to obtain a
government loan. Thus, the agency is
proposing to exempt agency business
loan program applicants from
application of the affiliation based on
newly organized concern rule.
Finally, with respect to affiliation
based on joint ventures, SBA proposes
to not apply the current affiliation
principle relating to affiliation based on
joint ventures set forth in § 121.103(h) to
the 504 Loan Program, the 7(a) Loan
Program or the Microloan Program.
Agency records indicate that applicants
for assistance under agency business
loan programs are rarely, if ever, joint
ventures and, therefore, this provision is
unnecessary for the business loan
programs. This proposed change is
being made in the interest of
streamlining and simplifying business
loan program rules, and to provide
bright line eligibility criteria regarding
affiliation determinations for the
business loan programs.
In conjunction with proposing the
above revisions to 504 Loan Program
regulations to expand program
accessibility, streamline complicated
processes, and minimize burdens to
applicants and lenders, SBA seeks to
ensure program integrity and maintain
proper oversight through the following
means. First, to assist in ensuring
compliance with the affiliation
principles, SBA proposes to require
applicants to sign an affidavit certifying
that all persons affiliated with the
applicant have been identified in the
affidavit. It is the agency’s view that
applicants are expected to know and
disclose these persons and requiring
this disclosure under sworn statement
to the Federal government should deter
applicants from omitting important
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information necessary for determining
compliance with the applicable size
requirements. An affidavit on affiliate
certifications would enable participant
lenders to improve consistency and
would also expedite SBA’s review of the
size eligibility of potential applicants.
Completing the affidavit to document
affiliated business owners of 50% or
less would be less burdensome on
applicants than having to submit tax
documents or financial statements. In
fact, SBA estimates that the proposed
revision would reduce the burden on
participants in both loan programs (both
borrowers and lenders) by a total of
26,402 hours and result in savings
totaling $700,777. Based on estimates
using FY 2012 loan approvals as a base,
the annual savings to borrowers for both
programs combined is estimated at
$700,000 and $750,000 annually.
Similarly, SBA estimates that the
proposed revision will reduce burden to
the government by a total of 2,666 hours
and result in savings totaling $78,085.
Based on estimates using FY 2012
approvals as a base, this burden
reduction in loan review time combined
for both loan programs, is estimated at
between $80,000 and $100,000
annually. Thus, not only would the
affidavit on affiliates be a control
mechanism to ensure against abuse of
SBA’s guaranty and simplify and reduce
potential mistakes in size standard
decisions, but it would also be a critical
time and cost saving measure, as
demonstrated by the above data.
Second, and notwithstanding the
agency’s goal to provide bright line
eligibility criteria regarding affiliation
determinations for the business loan
programs, the agency realizes that
egregious cases of large entities
benefiting from a small business loan
program can threaten program integrity
and public support. Thus, the agency
proposes to add a provision applicable
only to the business loan programs
which would give the agency the
discretion to prevent business loan
program participation of an applicant if,
after consideration of the totality of the
circumstances, it determines that
affiliation exists rendering the applicant
ineligible, even when no single factor is
sufficient to constitute affiliation. For
example, a finding of affiliation may be
appropriate if an applicant lists a minor
child as a majority owner and CEO of
a concern, but a parent of the child
actually owns or has the power to
control the business. The Agency would
look beyond the fiction of the child’s
ownership and position to determine
who actually controls the business, and
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consider the affiliates of the party in
control.
The agency does not expect to use this
discretionary provision often and
intends to apply it only in egregious
cases, one being the example identified
above, that might threaten business loan
program integrity or viability. SBA
encourages comments and suggestions
regarding this proposal and,
specifically, regarding additional
standards to prevent loans to ineligible
applicants, which could endanger the
viability of the loan programs.
In sum, the elimination of
unnecessary affiliation tests from the
business loan programs would expand
program eligibility to independently
owned and controlled small businesses
that would have previously been
considered ineligible. This is illustrated
by the fact that the SBA 504 loan
program has not exhausted its program
authority in the last 6 years. From 2006
through 2011, approximately 32% of
authorized funds have gone unused. In
2012, SBA had left unused 41% of its
504 loan program authorized funds.
Therefore, SBA recognizes the need to
expand access to the program to more
small businesses.
Moreover, as a result, this proposed
change would also significantly reduce
the excessive burden that is imposed on
all eligible small businesses and
participating lenders to provide
documentation for numerous affiliates
to make size evaluations. Under the
current regulations for both loan
programs, SBA estimates that borrowers
and lenders expend $7,274,657 and
spend 274,448 hours on providing the
documentation for numerous affiliates
for SBA to make size determinations.
Under the proposed revisions, the SBA
estimates that lenders and borrowers
would expend $6,573,880 and spend
248,046 hours on providing the
necessary documents to SBA. Along
those same lines, under current
regulations, SBA estimates that the
Agency expends approximately
$1,567,246 and 53,549 hours on
reviewing all of the documents in
making size eligibility determinations.
Under the proposed revisions, the SBA
estimates expending $1,489,161 and
50,883 hours on reviewing the necessary
documents.
By mitigating the burdens imposed by
the current regulations and streamlining
processes, the proposed rule would
expand eligibility for the 504 and 7(a)
Loan Programs, as well as SBA’s
Microloan Program authorized under
section 7(m) of the Small Business Act
(the ‘‘Microloan Program’’), by
redefining the permitted affiliations for
borrowers for purposes of determining
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the applicant’s size, but balancing that
expansion by requiring an affidavit as to
ownership and including a
discretionary provision allowing the
SBA to analyze the ‘‘totality of the
circumstances’’ in egregious cases.
B. The Personal Resources Test
An applicant is ineligible for
financing under the agency’s business
loan programs if it can obtain credit
elsewhere. A brief history surrounding
the current regulation is instructive
here. The initial version of Section 7(a)
of the Small Business Act authorized
SBA to make loans to small businesses
with the restriction that ‘‘no financial
assistance shall be extended * * *
unless the financial assistance applied
for is not otherwise available on
reasonable terms.’’ (Pub. L. 85–536, 72
Stat 388 (1958)). During the initial
implementation of the 7(a) Loan
Program in 1958, the agency interpreted
the financial resources test to include
the requirement that the funds applied
for by the applicant ‘‘not appear to be
obtainable without undue hardship
through utilization of the personal
credit or resources of the owner,
partners, management, or principal
shareholders of the applicant.’’ (23 FR
10513, December 31, 1958). Thus, the
agency required documentation that
obtaining the needed financing through
use of personal credit or personal
resources would create undue hardship
before the applicant would be eligible
for agency assisted financing.
As early as 1971, the agency received
feedback from the U.S. General
Accounting Office that loans or
guarantees were being made on behalf of
applicants in greater amounts than were
necessary considering the personal
credit and personal resources of those
applicants. The recommendation at that
time was that the agency create criteria
that would specify to agency loan
specialists when a loan should be
disapproved or agency participation
reduced because the personal resources
or credit of principals were substantial
enough to be used without undue
hardship of the principals.
In response, SBA began to provide
strict criteria including procedures for
‘‘careful review’’ of any person with
20% ownership in the company or
engaged in active management of the
company (and in tandem excusing from
review persons with less than 5%
ownership interest in the applicant with
no active management role with the
applicant). Still, there was no bright-line
established for what would
presumptively constitute an ‘‘undue
hardship’’ or what contribution of
personal resources was appropriate. For
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example, in the agency’s standard
operating procedures effective in 1985,
guidance to loan specialists for the 7(a)
Loan Program stated that ‘‘reasonable
utilization of personal assets’’ of
applicant principals applied to each
principal’s family as well, with
exemptions for cash surrender of life
insurance and IRAs, reasonable
education expenses, and an additional
exemption for each family equal to
$50,000 or 25% of the loan amount,
whichever was greater. (SBA SOP 50 10
2A (page 38, effective September 16,
1985) (available upon request.)) There
was also guidance regarding the
requirement that certain family real
estate could be counted as personal
resources to be used in lieu of program
assistance (e.g., ‘‘refinancing or sale of
real estate may be considered when a
principal owner has funds readily
available through sale or refinancing
that would provide a majority of the
loan request’’ though owner occupied
residences were generally exempted and
there was an exemption when ‘‘these
general rules appear to work as a
hardship due to the circumstances of
the individual case.’’) (SBA SOP 50 10
2A (page 39, effective September 16,
1985) (available upon request.)) This
history demonstrates the difficulty the
agency had in establishing clear
standards for determining when the use
of personal resources would create
undue hardship to the principals of a
business. In 1996, the agency revised its
regulations in an effort to create a more
objective standard by quantifying the
amount of personal resources that must
be injected into the business. (61 FR
3226, January 31, 1996)
While there have been numerous
amendments to Section 7(a), the credit
elsewhere restriction has remained,
with slight modifications. For instance,
the phrase ‘‘credit elsewhere’’ was
introduced in 1981 when the provision
was changed to read that ‘‘[n]o financial
assistance shall be extended pursuant to
this subsection if the applicant can
obtain credit elsewhere.’’ (The Small
Business Budget Reconciliation and
Loan Consolidation/Improvement Act of
1981, Pub. L. 97–35, title XIX, section
1902, 95 Stat. 767 (1981)). A definition
for ‘‘credit elsewhere’’ was added at the
same time. Section 3(h) of the Small
Business Act defines ‘‘credit elsewhere’’
as the ‘‘availability of credit from nonFederal sources on reasonable terms and
conditions taking into consideration the
prevailing rates and terms in the
community in or near where the
concern transacts business, or the
homeowner resides, for similar
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purposes and periods of time.’’ 15
U.S.C. 632(h).
Similarly, for the 504 Loan Program,
section 503(b)(2) of the Small Business
Investment Act of 1958 authorizes
financing of applicants only when
‘‘necessary funds for making such loans
are not available to such companies
from private sources on reasonable
terms.’’ Historically, to meet this
requirement, the agency verified that
private financing on reasonable terms
was not available to the 504 applicant,
but did not require a review of the
personal resources of the applicant’s
principals and owners. As late as 1993,
the agency issued standard operating
procedures that instructed loan
specialists that the availability of
personal resources would not usually
disqualify an applicant from receiving
assistance under the 504 Loan Program
because the primary focus of that
program was economic development
(job creation). (SBA SOP 50 22 3A (page
58, effective December 30, 1993)
(available upon request)). In 1995,
however, SBA published proposed
regulations explaining that the agency
had come to the conclusion that ‘‘there
is no difference between the business
loan programs regarding evidence of
need [and that] SBA will consider the
personal wealth and resources of the
principals and owners in determining
an applicant’s need for SBA financial
assistance in all business loan programs,
and SBA may require the principals and
owners of the applicant to use their
personal resources before SBA will
grant financial assistance’’ (60 FR
64362, December 15, 1995). This change
was adopted as final in 1996, and the
504 Loan Program was made subject to
the same personal resources test as the
7(a) Loan Program. (61 FR 3226, January
31, 1996).
Under the current personal resources
test for the 7(a) and 504 Loan Programs,
an assessment is required of the liquid
assets of each owner of 20 percent or
more of the equity of the applicant
company to determine the overall dollar
value of personal resources that do not
have to be injected into the business
(referred to as the ‘‘exemption’’). The
current allowable exemption is
determined on the basis of the ‘‘total
financing package.’’ The total financing
package includes any SBA loans,
together with any other loans, equity
injection, or business funds used or
arranged for at the same general time for
the same project as the SBA loan. If the
total financing package:
• Is $250,000 or less, the exemption
is two times the total financing package
or $100,000, whichever is greater;
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• Is between $250,001 and $500,000,
the exemption is one and one-half times
the total financing package or $500,000,
whichever is greater; or
• Exceeds $500,000, the exemption
equals the total financing package or
$750,000, whichever is greater.
Once the exemption is determined, it is
subtracted from the liquid assets. If the
result is positive, that amount must be
injected into the project.
The agency is proposing to eliminate
this personal resources test from the
regulations. SBA has become concerned,
that even borrowers whose principals
have significant personal resources may
be unable to obtain long-term fixed asset
financing from private sources at
reasonable rates. The agency is now
questioning whether the existence of
personal resources directly correlates to
the ability to obtain commercial credit
on reasonable terms and is, therefore,
rethinking the appropriateness of using
personal resources as an indirect means
of determining whether credit is
available from private sources. The
agency believes it is part of the agency’s
core mission regarding the assistance of
small businesses to increase access to
capital and that a personal resource test
does not promote access to capital as it
unnecessarily restricts the pool of
potential investors for small businesses
that participate in both loan programs.
The agency notes that if the personal
resources test is eliminated, more robust
borrowers will be eligible to participate
in the 504 and 7(a) Loan Programs, The
agency is proposing to eliminate this
personal resources test from the
regulations thereby mitigating risk to the
agency’s portfolio of loans while
facilitating job growth. Based on the
agency’s records, the number of loan
approvals dropped by 42% in 1997, the
year after the personal resource test was
first instituted for the 504 Loan
Program. As the recession has limited
access to capital, eliminating the
personal resource test would assist
small businesses in attracting more
types of investors.
For reasons set forth above, the
agency believes that the core business
loan program missions, including the
core job creation mission of the 504
Loan Program (15 U.S.C. 695) and the
small business credit support mission of
the 7(a) Loan Program (15 U.S.C. 636),
would best be served by focusing on the
statutory requirement regarding the
availability of credit on reasonable
terms without attempting to document
and enforce precise determinations
regarding the appropriateness of
personal resource contributions. The
agency is therefore proposing to
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eliminate the personal resources test
from the regulations for both loan
programs.
The agency continues to believe,
however, that the personal resources of
the applicant should be taken into
consideration in determining what
equity injection, if any, should be
required of the applicant’s principals
and owners. Prudent lending includes a
determination that the business is
adequately capitalized and, if not, that
available personal resources be injected
into the business. In addition, it is
important to note that agency
regulations require that persons with a
20% or more ownership interest in an
applicant guarantee a business loan
program financing (and other persons
may also be required to provide
personal guarantees). This means that if
such guarantors have substantial
personal resources, those resources will
conditionally support the financing.
SBA invites comments on this
specific issue and on the general issue
of whether a personal resources test
should be retained and, if so, in what
form.
C. The ‘‘9-Month Rule’’ (applies to 504
Loan Program Only)
Under current 504 Loan Program
regulations, § 120.882(a) permits
financing of expenses toward a project
only if they were incurred ‘‘within nine
months prior to receipt by SBA of a
complete loan application, unless the
time limit is extended or waived by SBA
for good cause.’’ SBA proposes to
eliminate this nine month limitation
and permit financings of expenses
toward a project regardless of when they
were incurred. Some general context
related to this proposed revision
follows.
Refinancing of debt unrelated to the
504 project is currently allowed in the
504 Loan Program only pursuant to
statutorily limited circumstances as set
forth in § 120.882(e) and (g). There are,
however, circumstances when an
applicant might incur short term debt to
cover expenses directly attributable to a
larger project that is eligible for
financing under the 504 Loan Program.
This is particularly true when building
construction is part of the project.
Acquisition of a building, and
particularly the decision to construct
from the ground-up, is the result of
planning over months, if not years.
Diligent small business owners
approach the process in a series of steps
based upon what is affordable and how
the business is performing. Financing
for these initial expenditures also is
determined by what is cost-effective for
the business. In such cases, the agency
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has under certain conditions allowed
those expenses/debts to be included as
part of a 504 Loan Program project.
What follows is a short summary of the
relevant history of how those conditions
evolved under the program to its current
criteria.
On July 5, 1985 (50 FR 27754), SBA
proposed § 108.503–5(d), which allowed
financing of expenditures made in
anticipation of a financing under the
504 Loan Program if, among other
conditions, the applicant filed a written
notice to SBA within 60 days after the
expenditure.
On June 6, 1986 (51 FR 20764), SBA
finalized the above rule and, in response
to comments, added that previously
acquired land should be eligible to be
included in project costs without regard
to the timing of the acquisition. It was
added as § 108.503–5(d)(2) and the rule
above became (d)(1).
On January 31, 1996 (61 FR 3226),
SBA published final regulations which
essentially re-wrote the loan program
regulations and in the process added
what is now referred to as the ‘‘9-month
rule’’ providing the following
explanation in the preamble:
‘‘§ 120.882. In the current regulations, costs
incurred by a Borrower in anticipation of
receiving a 504 loan are not eligible to be
included in Project costs unless the applicant
has filed a written notice with the CDC and
SBA within 60 days of incurring the expense
and SBA gives written approval. As a result,
CDCs and SBA receive notices from many
potential borrowers considering 504
financing who desire to maximize potential
financing. Many of these businesses never
actually apply or their applications are
denied. In those cases, the written notices are
a useless paperwork burden on SBA, the CDC
and the applicant. Therefore, SBA proposed
in § 120.882(a)(2) to eliminate the
requirement for written notice and allow as
an eligible Project cost any expense incurred
toward a Project within six months of receipt
by SBA of a complete loan application.
SBA received 16 comments opposing the 6
month limit. Commenters pointed out that in
actual practice the time it takes to reach the
point of application is often far greater than
6 months. In many metropolitan areas, the
zoning use permits, building permits, and
other clearances can take 9 to 12 months.
Often engineering plans and architectural
drawings may need to be completed or
redone, and lengthy environmental studies
may be required. In states like Minnesota
with long winters, the delay between site
preparations and construction may span
more than 6 months.
The intent of the proposed rule was to
alleviate unnecessary paperwork. It was not
intended to limit eligible costs. Therefore,
SBA increases the limit in this final rule to
9 months and adopts a comment suggesting
a waiver of the limit by the SBA District
Office for good cause, which waiver should
not be unreasonably withheld.’’ (61 FR 3226
at 3233, (January 31, 1996)).
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In practice, exceptions to the 9-month
rule have been granted regularly
because, generally speaking, the date the
expense was incurred is a poor indicator
as to whether the expense was directly
attributable to the applicant’s 504
project. For example, because of the
weak economy, many businesses’
expansion plans have been delayed or
placed on hold. Now, in the postrecession recovery period, many small
business owners are preparing to
resume their plans only to discover that
expenditures already made, or the
method of financing those expenditures,
results in those costs not being eligible
for 504 financing. As a result, SBA
receives about 6–8 rule exceptions
requests on a weekly basis, for an
approximate total of 312–416 such
requests yearly. Out of those requests,
SBA declines only 1–2 per week, for an
approximate total of 52–100 denials
yearly. Based on these estimates, in the
last five years, SBA has declined about
19% of rule exception requests, while
approving approximately 81% of such
requests. This data confirms the
agency’s belief that determining
whether an expense has been incurred
by an applicant for a 504 project
requires a fact specific analysis which
appropriate agency personnel need to
make regardless of when the expense
was incurred. As it relates to loan
processing, the agency will continue to
review any expense that was incurred
prior to the date of application to ensure
that it is ‘‘directly attributable’’ to the
project. Based on SBA’s experience in
the application of the 9-month rule and
having, for the most part, approved
requests from applicants that SBA make
an exception to this policy, the agency
believes that the 9-month restriction can
and should be eliminated from the
regulations.
D. CDC Operational and Organizational
Requirements
SBA also proposes to revise
regulations dealing with corporate
governance including eliminating the
requirement for CDC membership and
emphasizing the responsibility of the
board of directors. A detailed discussion
of these proposed changes can be found
in the section-by-section analysis below.
E. Other Changes
The proposed rule would make other
technical corrections and changes
resulting in simplification of some
regulations for both the 504 Loan
Program and the 7(a) Loan Program, and
a discussion of these proposed changes
can be found in the section-by-section
analysis.
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II. Section-by-Section Analysis
Section 120.102 Funds not available
from alternative sources, including
personal resources of principals. SBA
proposes to remove this regulation
regarding the availability of personal
assets of the principals of the Borrower.
For the reasons described above under
Background Information, SBA has
determined that in order to better serve
the small business community and
economic development, the regulation
should be removed for both the 504
Loan Program and the 7(a) Loan
Program.
Section 120.816 CDC nonprofit
status and good standing. SBA proposes
to redesignate the current § 120.820 as a
new § 120.816. The content would
remain unchanged.
Section 120.818 Applicability to
existing For-Profit CDCs. SBA proposes
to add this new section to clarify that,
unless expressly provided otherwise in
the regulations, any Loan Program
Requirement that applies to non-profit
CDCs also applies to for-profit CDCs.
This proposed change reflects current
SBA practice.
Section 120.820 CDC Affiliation.
SBA proposes to substitute the current
§ 120.820 with a new § 120.820 that sets
forth requirements regarding CDC
affiliations. In paragraph (a), SBA
proposes to require that a CDC be
independent and not be affiliated with
any Person (as defined in § 120.10)
except as permitted under this section.
In paragraph (b), SBA proposes to
permit CDCs to be affiliated with nonprofit economic development entities or
State and local government political
subdivisions (e.g., councils of
government). In paragraph (c), SBA
proposes to permit a CDC to continue to
be affiliated with a 7(a) Lender if: (1) the
affiliation was in effect as of the
effective date of this regulation; and (2)
the 7(a) Lender is either a state
development company approved by
SBA as of November 6, 2003, or a credit
union. This proposed change will
permit the continuation of existing
relationships between CDCs and 7(a)
Lenders that are credit unions or state
development companies, but does not
permit the creation of such relationships
going forward. In paragraph (d),
consistent with current policy, SBA
proposes adding a provision prohibiting
one CDC from affiliating with or
investing in or financing, directly or
indirectly, another CDC.
Section 120.822 Membership.
Currently, this section requires CDCs to
have at least 25 members or
stockholders, and also sets forth
membership group requirements. SBA
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proposes to eliminate the requirement
that a CDC have membership. Now that
CDCs currently have authority to loan in
a statewide (or multistate) area, the local
membership board does not have the
same impact as when CDCs represented
a smaller service area. Maintaining both
membership and a Board of Directors
places an unnecessary burden on CDCs.
Lessening this burden may encourage
more entities to become CDCs, resulting
in an expansion of the program and
loans to small businesses. A CDC may
continue to have membership but it is
no longer an SBA requirement. Instead,
SBA is emphasizing the responsibilities
and duties of the CDC Board of Directors
in the following section. Accordingly,
SBA is proposing to remove § 120.822
from the regulations.
Section 120.823 CDC Board of
Directors. In paragraph (a), SBA
proposes to revise the regulations to
emphasize the authority and the
responsibilities of the CDC Board of
Directors. The proposed regulation
provides that the initial board may be
created as permitted by state law. It also
outlines proposed requirements for the
directors’ backgrounds and areas of
expertise. SBA proposes adding a
requirement that the Board size shall be
not less than 11 voting directors and not
more than 25. SBA recommends that
CDCs have an odd number of Directors
to avoid tie votes, which is consistent
with best practices of Boards generally.
SBA has based this revision upon an
extensive review of the average size of
non-profit boards, not limited to CDCs,
which typically ranges from 7–15 Board
members. Based upon the mission and
responsibilities of CDCs and the average
size for both for-profit and non-profit
CDCs in the 504 Loan Program,
however, SBA is proposing a range of
11–25 Board members. While SBA
supports limiting the number of
directors on the Board for efficiency of
operations, the agency also understands
that an important function of the Board
is to provide representation for the
communities served by the CDC. Having
an upper limit of 25 directors for the
CDC Board would provide CDCs with
the opportunity to convert existing
membership (currently set at a
minimum of 25) to directors if they
choose to do so. To increase community
representation, the CDC would still have
the option to have a membership to
which the CDC may admit as many
members as it deems appropriate.
The Agency lists several proposed
areas of expertise that it believes are
essential to the successful operation of
the CDC Board. SBA proposes to require
that a CDC have, at a minimum, one
director that is a representative from the
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12639
economic, community or workforce
development field and two directors
that are representatives from the
commercial lending field. This
proposed change is intended to expand
the pool of potential directors and to
encourage more diversity and expertise
on the Board. Retired individuals may
represent the fields from which they
retired, as the Agency recognizes the
value of their knowledge and
experience.
Paragraph (b) regarding commercial
lending experience is language from the
existing regulation except that SBA
proposes to increase the minimum
number of voting directors on the Board
with commercial lending experience
from one to two. Further, at least two
directors with commercial lending
experience must be present and vote
when the Board is acting on SBA
approvals or servicing actions. SBA
believes that this requirement is prudent
now that the maximum loan amount has
been increased to $5,000,000 and, in
some cases, $5,500,000.
Paragraph (c) outlines the proposed
minimum requirements for Board
meetings and explicitly establishes the
Board’s responsibilities for the actions
of the CDC, its staff, and any committees
established by the Board of Directors.
The requirement in subparagraph (c)(1)
does not reflect any changes to the
current regulations. To ensure effective
operation and oversight of the CDC by
the Board, and to encourage maximum
involvement by each Director, the
Agency proposes requiring that a
quorum of not less than 50% of the
Board be present to conduct all
business. Non-voting directors will not
be included for the purposes of
establishing a quorum. SBA is aware
that some CDCs were requiring that a
quorum be present only to begin a
meeting; this practice would not comply
with the proposed rule. In subparagraph
(c)(3), SBA proposes that meetings may
be held in any manner permitted by
state law, recognizing that there are
methods for meeting other than being
physically present. Paragraph (c)(4)
proposes to maximize diversity on the
Board by limiting representation by
commercial lenders to less than 50% of
the Board of Directors. Paragraph (c)(5)
proposes to limit the ability of an
outside entity (including affiliates of
that entity) to control the Board by
restricting the entity’s representation on
the CDC Board to one member.
In paragraph (d), SBA proposes to
require that the Board be responsible for
ensuring that the structure and
operation of the CDC, as set forth in the
Bylaws, comply with SBA’s Loan
Program Requirements. In
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subparagraphs (d)(1) and (2), SBA
proposes to require that the Board be
responsible for setting the mission and
hiring, firing, supervising and
evaluating the CDC manager. To
emphasize the fiscal responsibility of
the Board as it relates to salaries,
subparagraph (d)(3) explicitly outlines
the duties of the Board to set salaries for
the CDC manager and to review all other
salaries to provide greater transparency
and accountability. SBA requires that a
Report on Compensation be included in
the Annual Report (see proposed
§ 120.830). SBA also proposes in
subparagraph (d)(4) to provide the CDC
with flexibility in determining whether
to have committees, but addresses the
requirements for Executive and Loan
Committees, if established. Emphasis
has been placed on the Board of
Directors in this proposed rule. If a
Board chooses to have an Executive
Committee, then its members must be
chosen from the Board as the Agency
does not want this authority to be
delegated to individuals who are not
members of the Board. The Executive
Committee must be chosen by and from
the Board and meet the same
requirements as the Board with the
exception that the Executive Committee
would be required to have no fewer than
5 voting members, and there must be a
quorum of at least 5 voting members to
conduct business. The proposed
regulations also permit the Board to
establish a Loan Committee and outline
the requirements as to committee
membership selection and background.
As is provided in the current rule
regarding the Loan Committee, no CDC
staff may serve on the Loan Committee.
Further, the regulation as proposed
defines a quorum as five voting Loan
Committee members. Subparagraph
(d)(4)(ii)(D) additionally proposes that
there be no actual or appearance of a
conflict of interest. For example, a
member of the Loan Committee must
not participate in deliberations on a
loan for which the Third Party Lender
is the Committee member’s employer.
Subparagraph (d)(5), as proposed,
requires the Board to ensure that the
CDC’s expenses are reasonable and
customary, and proposed subparagraph
(d)(6) requires the Board to hire an
independent auditor to ensure
compliance with Loan Program
Requirements.
The proposed provisions in
subparagraphs (d)(7) and (8) emphasize
the requirement that the Board monitor
the portfolio and review the semiannual
status report from the CDC to ensure
that the Board provides appropriate
oversight of the CDC’s portfolio. SBA
proposes to add requirements in
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subparagraph (d)(9) that the Board
ensure that the CDC establishes and
maintains adequate reserves to enable
the CDC to operate.
As provided in current § 120.825, a
CDC must invest in its Area of
Operations. Subparagraph (d)(10) of
§ 120.823 proposes to require that the
Board approve all investments of over
$2,500 and that the CDC manager
approve investments of $2,500 or less in
order to ensure that the investments
constitute appropriate economic
development activity and that such
investments do not compromise the
adequacy of the reserves. Examples of
economic development activities could
include non-profit activities such as
workforce development programs,
lending programs or other like activities
in the CDC’s Area of Operations.
The Agency proposes to require in
subparagraph (d)(11) that the Board
establish a policy in the Bylaws of the
CDC prohibiting an actual or apparent
conflict of interest, and enforce such
policy. The agency would expect that
the policy would provide, among other
things, that no director may participate
in deliberations on a loan if the director
is employed by or is otherwise
associated with the Third Party Lender.
Subparagraphs (d)(12) and (d)(13), as
proposed, express the Board’s retention
of accountability for all actions of the
CDC, and establishes the responsibility
for establishing written internal control
polices as set forth in § 120.826. SBA
proposes to add subparagraph (d)(14)
requiring the CDC’s Board of Directors
to establish commercially reasonable
loan approval policies, procedures, and
standards. The CDC’s credit approval
process and delegations of authority, if
any, must be set forth in the Bylaws. In
addition, the loan must be creditapproved before the application is
submitted to SBA. The proposed rule
would require that the Board of
Directors, or the Executive Committee, if
authorized by the Board, provide credit
approval for loans greater than
$2,000,000 prior to submission to the
agency, as SBA believes that it is
important that the Board, or Executive
Committee, approve these larger loans.
However, SBA recognizes that Boards
may not meet frequently enough to
provide the needed credit approval in a
timely manner prior to submission of an
application to SBA and that allowing
approval of smaller loans by the Loan
Committee would present minimal
additional risk to the Agency. Therefore,
SBA is proposing to allow Boards to
delegate authority to the Loan
Committee to provide credit approval
of: (1) loans of less than $1 million, and
(2) loans of $1 million to $2 million
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subject to ratification by the Board or
the Executive Committee prior to
debenture closing. SBA invites
comment on this proposal. To further
emphasize the responsibilities of the
Board, in subparagraph (d)(15), SBA
proposes an annual certification by all
Board members acknowledging their
responsibilities.
In paragraph (e), SBA proposes to add
the requirement that the Board must
maintain directors’ and officers’ liability
and errors and omissions insurance to
protect the CDC. The Agency requires at
least $5,500,000 for each occurrence and
$5,500,000 in the aggregate per year, as
well as a deductible of not more than
$50,000 for both directors’ and officers’
liability insurance and errors and
omissions insurance. These coverage
amounts correspond to the maximum
loan amount. SBA invites comment on
the amounts of both the insurance and
the deductible.
Section 120.830 Reports a CDC must
submit. SBA proposes to revise the
requirements for reporting by CDCs in
order to improve transparency and
accountability and for other purposes
discussed in this paragraph. In
paragraph (a), SBA proposes adding a
requirement that copies of Federal tax
returns be submitted in the Annual
Report to assist the Agency in reducing
risk by reviewing the financial
condition of the CDC and compensation
of CDC employees. The requirements for
the audited or reviewed financial
statements are set forth in subparagraph
(a)(1) and remain unchanged. In
addition, as a matter of practice, SBA
does not require a CDC to submit an
Annual Report for the year in which it
was certified if the CDC is certified by
SBA within 6 months of its fiscal yearend, and SBA proposes to reflect this
practice in the regulations. In
subparagraph (a)(2), SBA proposes to
add a requirement for an annual
compensation report covering all
current and former officers and directors
receiving compensation during the
covered period, and any current and
former employees and independent
contractors with total compensation of
more than $100,000 during the covered
period. For this purpose, total
compensation includes all
compensation, including salary,
bonuses and expenses. Additionally, in
subparagraph (a)(3), the Agency
proposes to require that the annual
report include an annual certification by
each of the directors that he or she has
read and understands the requirements
set forth in the proposed § 120.823. In
subparagraph (a)(4), SBA is proposing to
require that the CDC report on
investments in economic development
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activities in each State in which the
CDC has an outstanding 504 loan. With
the exception of the revisions noted
above, the reporting requirements for
CDCs remain the same.
Section 120.835 Application to
expand an Area of Operations. SBA
proposes to incorporate subparagraph
(c)(1) into paragraph (c) and remove
subparagraph (c)(2), which currently
requires the CDC to meet the
requirements as to membership for each
state in a Multi-state expansion, since
the proposed revisions to § 120.822
make membership optional.
Section 120.882 Eligible Project
costs for 504 loans. SBA proposes to
eliminate paragraph (a)(2) of § 120.882,
which limits Project expenses eligible
for 504 Loan Program financing to those
incurred within 9 months prior to
receipt by SBA of a complete loan
application. (The cost of acquiring land
to be used in the Project is not subject
to the 9-month restriction.)
For the reasons described above under
Background Information, SBA’s
proposal would permit prior expenses
that are directly attributable to the 504
project to be considered eligible project
costs regardless of when those
expenditures were made. If financing
was required for the costs incurred, SBA
would determine whether the 504 loan
should be made under § 120.882(e) as a
504 project that includes a refinancing
component or under § 120.882(a)
because the costs are directly
attributable to the project.
Section 120.920 Required
participation by the Third Party Lender.
SBA proposes revising this section to
provide that if a Third Party Lender
requires collateral in addition to that
which the CDC takes, the Third Party
Lender, in the event of liquidation, must
first apply the proceeds from the sale of
the additional collateral to the balance
of the Third Party Lender’s loan. This
marshaling of assets would protect the
CDC’s position in the Common
Collateral (as defined in the proposed
revision to this section) and could lead
to greater recovery for SBA
Section 120.925 504 Preferences.
SBA proposes removing this section,
and addressing the concern with respect
to the application of the proceeds from
additional collateral held by the Third
Party Lender in § 120.920 as described
above.
Section 121.103 How does SBA
determine affiliation? SBA proposes to
amend this section to provide that
affiliation for 7(a), 504 and microloan
loan applicants would be determined
under a new § 121.302, as described
below, and not under § 121.103.
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Section 121.302 What are the
standards for determining affiliation for
loan applicants?
SBA proposes to redefine ‘‘affiliation’’
for the purpose of the business loan
programs. Proposed paragraph (a) of
§ 121.302 contains a statement of
general principles of affiliation for
business loan applicants and
incorporates the exceptions to affiliation
set forth in § 121.103(b). Proposed
paragraph (b) sets forth the affiliation
principles based on ownership.
Proposed paragraph (c) describes the
effect on affiliation of stock options,
convertible securities, and agreements
to merge. Proposed paragraph (d)
outlines affiliation based upon common
management. Proposed paragraph (e)
incorporates § 121.103(i) regarding
affiliation based on franchise and
license agreements. Proposed paragraph
(f) requires that each applicant for a 7(a)
loan or a 504 loan submit with its
application an Affidavit in which
discloses all owners of the applicant
and the percentage of ownership of
each, and any affiliates as determined
under this section.
The existing §§ 120.302 through
120.305 are proposed to be redesignated
as §§ 120.303 through 120.306,
respectively, without any further
changes.
Compliance With Executive Orders
13563, 12866, 12988, and 13132, the
Paperwork Reduction Act (44 U.S.C.,
Ch. 35,), and the Regulatory Flexibility
Act (5 U.S.C. 601–612)
Executive Order 13563 and Executive
Order 12866
The Office of Management and Budget
(OMB) has determined that this
proposed rule is a ‘‘significant’’
regulatory action for the purposes of
Executive Order 12866. Accordingly,
the next section contains SBA’s
Regulatory Impact Analysis. However,
this is not a major rule under the
Congressional Review Act, 5 U.S.C. 800.
Regulatory Impact Analysis
1. Is there a need for this regulatory
action?
The agency believes it needs to reduce
regulatory burdens and expand business
loan program access to reinvigorate the
programs and facilitate job creation.
2. What are the potential benefits and
costs of this regulatory action?
As stated above, the potential benefits
of this proposed rule are based on its
elimination of unnecessary participation
burdens and eligibility criteria.
Specifically, the proposed rule would
eliminate certain eligibility criteria
related to the personal resources of
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certain people or companies associated
with the applicant. It would also exempt
the business loan program from certain
rules that determine whether an entity
is deemed affiliated with an applicant.
When an entity is determined to be
affiliated with an applicant, then that
entity’s receipts and employees are
added to those of the applicant when
determining its size. Thus, certain
businesses are deemed to be ineligible
for assistance because they are not
deemed to be ‘‘small’’ for program
purposes by virtue of their combined
size with affiliated entities. By
eliminating unnecessary affiliation tests
from the business loan programs,
independently owned and controlled
small businesses that would otherwise
be ineligible for business loan program
assistance will become eligible. In
addition, the excessive burden related to
providing documentation for size
evaluation for numerous affiliates now
faced by lenders and borrowers would
be significantly reduced by the
proposed rule.
In the 504 Loan Program, SBA is
proposing to eliminate what is
commonly referred to as the ‘‘9-month
rule’’. The 9-month rule essentially
states that costs incurred by an
applicant that otherwise would be
eligible for financing under the 504
Loan Program are presumptively
deemed to be ineligible project costs if
incurred more than 9 months prior to a
complete loan application submitted by
an applicant. Also pertaining only to the
504 Loan Program, the proposed rule
would revise regulations dealing with
corporate governance including
eliminating the requirement for CDC
membership and emphasizing the
responsibility of the board of directors.
CDCs participating in the 504 Loan
Program would no longer need to
maintain a membership, thus
eliminating that program participation
burden. Requirements for the CDC
Board of Directors are clarified and
detailed to compensate for the potential
loss of oversight that might result from
the lack of CDC membership
participation. SBA could have allowed
CDC Directors to operate without clearly
articulated basic standards that are
commonly accepted best practices that
most CDCs already follow. SBA
welcomes comments and suggestions on
the benefit of allowing CDC Boards to
operate without the basic governance
standards and oversight proposed in
this rule.
With respect to CDC Board
requirements, the agency proposes to
establish a minimum quorum of 50% of
the Board and to require that the Board
set the CDC manager’s salary and review
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all CDC staff salaries. There are
additional operational requirements
which are discussed more fully in the
section-by-section analysis of this
proposed rule. It is the agency’s view
that these rules basically would codify
best practices for CDC Board operation
and would not significantly add to the
burden of being a responsible CDC
director. The agency encourages public
comment on the Board requirements,
especially with respect to any possible
significant economic impact, as well as
suggestions regarding how to ensure
proper Board operations in a less
burdensome way.
Finally, there are miscellaneous
proposed revisions which clarify or
slightly revise exiting regulations with
very minor regulatory impact. For
example, consistent with current policy,
§ 120.818 clarifies that CDC
requirements apply to for-profit CDCs.
Another example is § 120.830, which
the agency believes would allow several
CDCs to maintain existing affiliations
and still qualify for expanded CDC
status without impacting the operational
requirements of other CDCs. With
respect to any of the proposed revisions
relating to CDC operational and
organizational requirements, the agency
welcomes any comments regarding
potentially significant impact on CDC
operations and views regarding how the
agency can responsibly reduce CDC
operational and organizational
compliance burdens.
3. What alternatives have been
considered?
One ‘‘alternative’’ would be to
eliminate even more regulatory burdens
and the agency enthusiastically
encourages public comment and
suggestions on how that can be done
responsibly without substantially
increasing the risk of waste, fraud, or
abuse of the programs or otherwise
threatening the integrity of the business
loan program or taxpayer dollars. With
respect to the proposed changes to CDC
Board of Director requirements, the
agency considered allowing CDC
directors to operate with virtually no
agency oversight or standards, relying
on state non-profit corporation laws and
state oversight to ensure proper Board
performance. This idea was quickly
rejected because SBA’s review of actual
state oversight of non-profit directors
and the applicable state law
requirements indicated that state
oversight and laws would not provide
the parameters and oversight necessary
for a Federal loan program that
potentially puts billions of taxpayer
dollars at risk each year.
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Executive Order 13563
A description of the need for this
regulatory action and benefits and costs
associated with this action, including
possible distributional impacts that
relate to Executive Order 13563, are
included above in the Regulatory Impact
Analysis under Executive Order 12866.
The business loan programs operate
through the agency’s lending partners,
which are 7(a) Lenders and CDCs. The
agency has held public forums and
meetings which allowed it to reach
hundreds of its lending partners and
gain valuable insight, guidance, and
suggestions from many of them and the
trade associations which represent
many of them. The agency’s outreach
efforts to engage stakeholders before
proposing this rule was extensive.
Executive Order 12988
This action meets applicable
standards set forth in Sections 3(a) and
3(b) (2) of Executive Order 12988, Civil
Justice Reform, to minimize litigation,
eliminates ambiguity, and reduce
burden. The action does not have
retroactive or preemptive effect.
Executive Order 13132
SBA has determined that this
proposed rule will not have substantial,
direct effects on the States, on the
relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. Therefore, for the
purposes of Executive Order 13132,
SBA has determined that this proposed
rule has no federalism implications
warranting preparation of a federalism
assessment.
Paperwork Reduction Act, 44 U.S.C.,
Ch. 35
The SBA has determined that this
proposed rule would impose additional
reporting and recordkeeping
requirements under the Paperwork
Reduction Act (PRA), 44 U.S.C. Chapter
35. First, SBA proposes to amend the
currently approved CDC Annual Report
to require CDCs to report on executive
compensation and economic
development projects, and to submit a
copy of the CDC’s tax return. Under the
proposed rule, each CDC director must
certify that he or she has read and
understands the requirements set forth
in 13 CFR 120.823.
Second, SBA proposes to require each
loan applicant to certify in an Affidavit
(the ‘‘Applicant Affidavit on
Affiliation’’) as to the applicant’s
affiliation with any other entities.
Requiring submission of this Affidavit
would significantly reduce the burden
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on the small businesses and the CDCs as
the small businesses applying for a 504
or 7(a) loan would be required to submit
certain documentary evidence (e.g.,
credit reports, financial statements and
tax returns) only with respect to their
affiliates as defined in the proposed
rule. In addition, applicants would be
required to identify all owners of the
applicant as opposed to each owner of
20% or more interest as is now required
only on Form 4, Application for
Business Loan.
As a result of these new requirements,
SBA proposes to revise the information
collections identified below:
1. Title and Description of
Information Collection: The Certified
Development Company (CDC) Annual
Report (SBA Form 1253) is the method
through which the CDC provides
information to SBA on economic
development, its financial condition,
operations and employment impact. The
additional information that would be
required to be submitted with the
Annual Report is a certification by each
CDC director, a report on compensation,
and a copy of the CDC’s federal tax
return. This information collection will
also be revised to reflect changes in
governance of CDC membership;
composition of CDC board of directors
and increases to insurance coverage.
OMB Control Number: 3245–0074.
Description of and Estimated Number
of Respondents: All CDCs must provide
an annual report. Currently there are
approximately 260 CDCs. There is 1
form per respondent. SBA has prepared
an estimate based on the fact that
respondents keep the information
requested in the ordinary course of
business (all the loan information
including jobs created and retained.).
Estimated Number of Responses: 260
(260 CDCs × 1 form per respondent =
260).
Estimated Time per Response: SBA
estimates the time needed to complete
this collection will average 28 hours.
Total Estimated Hour Burden: 260 ×
28 hours = 7,280 total annual burden
hours. This is 168 hours less than the
current OMB inventory (7,488).
2. Title and Description of
Information Collection: Applicant
Affidavit on Affiliation as to applicant’s
affiliation with any other entities. This
new information collection, as
described above, will be submitted with
the following applications:
(i) Application for Section 504 Loan
(SBA Form 1244).
OMB Control Number: 3245–0071
Description of and Estimated Number
of Respondents: The Applicant would
execute this Affidavit which would be
part of exhibit 12 to SBA Form 1244.
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Based upon FY 2011 loan totals, SBA
estimates that 6,800 respondents will
complete the Affidavit annually (4,625
ASM submission + 2,75 standard
submissions = 6,800).
Estimated Number of Responses:
6,800 based upon the FY 2011 loan
totals.
Estimated Time per Response: SBA
estimates that each applicant would
require 15 minutes to complete the new
proposed form, thereby decreasing the
total estimated burden for this
collection, which depending on the
Lenders status, is currently 2.25 hours
or 2.45 hours per application.
Total Estimated Burden: 15,736
hours, which is identical to current
OMB inventory.
(ii) Application for Business Loan
(SBA Form 4–I and 4 Schedule A).
OMB Control Number: 3245–0016.
Description of and Estimated Number
of Respondents: 17,300 Applicants for
7(a) loans based upon FY 2011 totals.
Estimated Number of Responses:
32,130 based upon the FY 2011 totals.
Estimated Time per Response: SBA
estimates that each applicant would
require 15 minutes to complete the new
proposed form, which would result in a
corresponding reduction in the current
burden for this collection.
Total Estimated Burden: 206,340
hours (8.625 hours less than current
OMB inventory).
(iii) SBA Express, Export, Express,
Small Loan Advantage, PLP-CapLines,
and Pilot Loan Programs (Patriot
Express and Dealer Floor Plan)
Borrower Information Form (SBA Form
1919, 1920SX (A, B & C) and 2237).
OMB Control Number: 3245–0348.
Description of and Estimated Number
of Respondents: 4,450 Applicants for
SBA Express, Export Express, Small
Loan Advantage, PLP-Caplines and Pilot
Loan Programs based upon FY 2011
totals.
Estimated Number of Responses:
117.900.
Estimated Time per Response: 12
minutes.
Total Estimated Burden: 22,620 hours
(36,236 hours less than current OMB
inventory).
(iv) Lender Advantage (SBA Form
2301–A, B & C).
OMB Control Number: 3245–0361.
Description of and Estimated Number
of Respondents: 15,900 Applicants for
SBA’s Lender Advantage Loan Initiative
Program based upon a projection of
program activity during FY 2013.
Estimated Number of Responses:
15,900 respondents based upon a
projection of program activity during FY
2013.
Estimated Time per Response: SBA
estimates that each applicant would
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require 30 minutes to complete the new
proposed form, which would result in a
reduction in the current burden hours
for this collection.
Total Estimated Burden: 46,095 hours
(2,895 hours less than current OMB
inventory).
(v) PCLP Quarterly Loan Reserve
Report and PCLP Guarantee Request
(SBA Forms 2233 and 2234–A, B & C).
OMB Control Number: 3245–0346.
Description of and Estimated Number
of Respondents: 19 PCLP Lenders.
Estimated Number of Responses:
1,700 respondents based on an estimate
of the loan volume.
Estimated Time per Response: SBA
estimates that each applicant would
require 50 minutes to complete the new
proposed form, which would result in a
reduction in the current burden hours
for this collection.
Total Estimated Burden: 1,402 hours
less than current OMB inventory.
SBA has submitted these amended
collections to the Office of Management
and Budget (OMB) for review, and
invites the public to comment on the
proposed changes, particularly on: (1)
Whether the proposed collection of
information is necessary for the proper
performance of the program, including
whether the information will have a
practical utility; (2) the accuracy of
SBA’s estimate of the burden of the
proposed collections of information; (3)
ways to enhance the quality, utility, and
clarity of the information to be
collected; and (4) ways to minimize the
burden of the collection of information
on respondents, including through the
use of automated collection techniques,
when appropriate, and other forms of
information technology. Please send
comments by the closing date for
comment for this interim final rule to
SBA Desk Officer, Office of Management
and Budget, Office of Information and
Regulatory Affairs, 725 17th Street NW.,
Washington, DC 20503, and to Linda
Reilly, Chief, 504 Program Branch,
Office of Financial Assistance, Small
Business Administration, 409 Third
Street SW., Washington, DC 20416.
Regulatory Flexibility Act, 5 U.S.C. 601–
612
When an agency issues a rulemaking
proposal, the Regulatory Flexibility Act
(RFA), 5 U.S.C. 601–612, requires the
agency to ‘‘prepare and make available
for public comment an initial regulatory
analysis’’ which will ‘‘describe the
impact of the proposed rule on small
entities.’’ Section 605 of the RFA allows
an agency to certify a rule, in lieu of
preparing an analysis, if the proposed
rulemaking is not expected to have a
significant economic impact on a
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substantial number of small entities.
Although the rulemaking will impact all
of the approximately 4,500 7(a) Lenders
(some of which are small) and all of the
approximately 260 CDCs (all of which
are small), SBA does not believe the
impact will be significant. As stated
above, the proposed rule will expand
access to the business loan program but
this will not increase the burden of the
agency’s lending partners because they
choose their own level of program
participation (i.e., 7(a) Lenders and
CDCs are not required to process more
loan applications simply because more
small businesses are eligible to apply for
a business loan). For those CDCs and
lenders that process more businesses
loans, the benefit of the increase in
revenue will far exceed any increased
burden. In addition, the proposed
elimination of certain program
participation requirements would not
have a substantial economic impact or
cost on the small business borrower,
lender or CDC.
SBA believes that this rule is SBA’s
best available means for facilitating
American job preservation and creation
by removing unnecessary regulatory
requirements. Since the main purpose of
this proposed rule is to reduce
unnecessary regulatory burdens and
program eligibility criteria, a review of
the preamble sections above will
provide more detailed explanations
regarding how and why this proposed
rule will reduce regulatory burdens and
responsibly increase program
participation flexibility. For these
reasons, SBA has determined that there
is no significant impact on a substantial
number of small entities. SBA invites
comment from members of the public
who believe there will be a significant
impact either on CDCs, or their
borrowers.
List of Subjects
13 CFR Part 120
Community development, Equal
employment opportunity, Loan
programs—business, Reporting and
recordkeeping requirements, Small
business.
13 CFR Part 121
Grant programs-business, Individuals
with disabilities, Loan-programsbusiness, Reporting and recordkeeping
requirements, Small businesses.
For the reasons stated in the
preamble, SBA proposes to amend 13
CFR parts 120 and 121 as follows:
PART 120—BUSINESS LOANS
1. The authority for 13 CFR part 120
continues to read as follows:
■
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Authority: 15 U.S.C. 634(b)(6), (b)(7),
(b)(14), (h) and note, 636(a), (h) and (m), 650,
687(f), 696(3) and 697(a) and (e); Pub. L. 111–
240, 124 Stat. 2504.
§ 120.102
■
§ 120.820
■
■
[Removed]
2. Remove § 120.102.
[Redesignated as § 120.816]
3. Redesignate § 120.820 as § 120.816.
4. Add § 120.818 to read as follows:
§ 120.818 Applicability to existing forprofit CDCs.
Unless expressly provided otherwise
in the regulations, any Loan Program
Requirement that applies to non-profit
CDCs also applies to for-profit CDCs.
■ 5. Revise newly redesignated
§ 120.820 to read as follows:
§ 120.820
CDC Affiliation.
(a) A CDC must be independent and
may not be affiliated (as determined in
accordance with § 121.103) with any
Person (as defined in § 120.10) except as
permitted under this section.
(b) A CDC may be affiliated with an
entity whose function is economic
development in the same Area of
Operations and that is either a nonprofit entity or a State or local
government or political subdivision
(e.g., council of governments).
(c) A CDC that is affiliated with a 7(a)
Lender may continue such affiliation if:
(1) The affiliation was in effect as of
[EFFECTIVE DATE OF FINAL RULE],
and
(2) The 7(a) Lender is either a state
development company approved by
SBA as of November 6, 2003, or a credit
union.
(d) A CDC must not be affiliated with,
or directly or indirectly invest in or
finance, another CDC.
§ 120.822
■
■
§ 120.823
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6. Remove § 120.822.
7. Revise § 120.823 to read as follows:
CDC Board of Directors.
(a) The CDC, whether for-profit or
nonprofit, must have a Board of
Directors with at least eleven (11), and
no more than twenty-five (25), voting
directors. The Board must be actively
involved in encouraging economic
development in the Area of Operations.
The initial Board may be created by any
method permitted by applicable State
law. At a minimum, the Board must
have directors with background and
expertise in internal controls, financial
risk management, commercial lending,
legal issues relating to commercial
lending, and corporate governance.
Directors may be either currently
employed or retired. A CDC must have
at least one voting director that
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represents the economic, community or
workforce development fields, and at
least two voting directors that represent
the commercial lending field.
(b) At least two voting members of the
Board of Directors, other than the CDC
manager, must possess commercial
lending experience satisfactory to SBA.
When the Board votes on SBA loan
approval or servicing actions, at least
two voting Board members, with such
commercial lending experience, other
than the CDC manager, must be present
and vote.
(c) The Board of Directors must meet
at least quarterly and shall be
responsible for the actions of the CDC
and any committees established by the
Board of Directors. In addition, the
Board of Directors is subject to the
following requirements:
(1) Except for the CDC manager, no
person on the CDC’s staff may be a
voting director of the Board;
(2) A quorum must be present to
transact business. The quorum shall be
set by the CDC but shall be no less than
50% of the voting members of the Board
of Directors;
(3) Attendance at meetings may be
through any format permitted by State
law;
(4) Directors from the commercial
lending fields must comprise less than
50% of the representation on the Board;
and
(5) A CDC shall not permit more than
one individual who is employed by or
serves on the Board of Directors of a
single entity (including the entity’s
affiliates) to serve on the CDC’s Board of
Directors.
(d) The Board shall have and exercise
all corporate powers and authority and
be responsible for all corporate actions
and business. There must be no actual
or appearance of a conflict of interest
with respect to any actions of the Board.
The Board is responsible for ensuring
that the structure and operation of the
CDC, as set forth in the Bylaws, comply
with SBA’s Loan Program
Requirements. The responsibilities of
the Board include, but are not limited,
to the following:
(1) Approving the mission and the
policies for the CDC;
(2) Hiring, firing, supervising and
annually evaluating the CDC manager;
(3) Setting the salary for the CDC
manager and reviewing all salaries;
(4) Establishing committees, at its
discretion, including the following:
(i) Executive Committee. To the extent
authorized in the bylaws, the Board of
Directors may establish an Executive
Committee. The Executive Committee
may exercise the authority of the Board;
however, the delegation of its authority
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does not relieve the Board of its
responsibility imposed by law or Loan
Program Requirements. No further
delegation or redelegation of this
authority is permitted. If the Board
establishes an Executive Committee and
delegates any of its authority to the
Executive Committee as set forth in the
bylaws of the CDC, the Executive
Committee must:
(A) Be chosen by and from the Board
of Directors from the Board; and
(B) Meet the same organizational and
representational requirements as the
Board of Directors, except that the
Executive Committee must have a
minimum of five voting members who
must be present to conduct business.
(ii) Loan Committee. The Board of
Directors may establish a Loan
Committee. The Loan Committee may
exercise the authority of the Board only
as set forth in paragraphs (d)(4)(ii)(A)
through (D) of this section; however, the
delegation of its authority does not
relieve the Board of its responsibility
imposed by law or Loan Program
Requirements. If the Board of Directors
chooses to establish a Loan Committee,
no CDC staff or manager may serve on
the Loan Committee. The Loan
Committee must:
(A) Be chosen by the Board of
Directors from the membership (if any),
shareholders or the Board;
(B) Have a quorum of at least five (5)
committee members authorized to vote;
(C) Have at least two members with
commercial lending experience
satisfactory to SBA; and
(D) Have no actual or appearance of
a conflict of interest, including for
example, a Loan Committee member
participating in deliberations on a loan
for which the Third Party Lender is the
member’s employer or the member is
otherwise associated with the Third
Party Lender.
(5) Ensuring that the CDC’s expenses
are reasonable and customary;
(6) Hiring directly an independent
auditor to provide the financial
statements in accordance with Loan
Program Requirements;
(7) Monitoring the CDC’s portfolio
performance on a regular basis;
(8) Reviewing a semiannual report on
portfolio performance from the CDC
manager, which would include, but not
be limited to, asset quality and industry
concentration;
(9) Ensuring that the CDC establishes
and maintains adequate reserves for
operations;
(10) Ensuring that the CDC invests in
economic development in each of the
States in its Area of Operations in which
it has a portfolio; and:
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(i) For investments of $2,500 or less:
The CDC manager may approve such
investments; and
(ii) For investments over $2,500: The
Board must approve each such
investment.
(11) Establishing a policy in the
Bylaws of the CDC prohibiting an actual
conflict of interest or the appearance of
same, and enforcing such policy;
(12) Retaining accountability for all of
the actions of the CDC;
(13) Establishing written internal
control polices, in accordance with
§ 120.826;
(14) Establishing commercially
reasonable loan approval policies,
procedures, and standards. The Bylaws
must include a credit approval process
and set forth any delegations of
authority to the Loan Committee and
Executive Committee, if either
Committee has been established. All 504
loan applications must have credit
approval prior to submission to the
Agency. The Loan Committee, if
established, may be delegated the
authority to provide credit approval for
loans up to $2,000,000 but, for loans of
$1,000,000 to $2,000,000, the Loan
Committee’s action must be ratified by
the Board or Executive Committee prior
to Debenture closing. Only the Board or
Executive Committee, if authorized by
the Board, may provide credit approval
for loans greater than $2,000,000.
(15) All members of the Board of
Directors must annually certify in
writing that they have read and
understood this section, and copies of
the certification must be included in the
Annual Report to SBA.
(e) The Board of Directors shall
maintain Directors’ and Officers’
Liability and Errors and Omissions
insurance in an amount of at least
$5,500,000 per occurrence and in the
aggregate per year with a deductible of
not more than $50,000.
■ 8. Amend § 120.830 by revising
paragraph (a) to read as follows:
§ 120.830
Reports a CDC must submit.
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*
*
*
*
*
(a) An Annual Report within one
hundred-eighty days after the end of the
CDC’s fiscal year (to include Federal tax
returns for that year). A CDC that is
certified by SBA within 6 months of the
CDC’s fiscal year-end is not required to
submit an Annual Report for that year.
The Annual Report must include, but is
not limited to, the following:
(1) Audited or Reviewed Financial
Statements as required in § 120.826(c)
and (d) for the CDC and any affiliates or
subsidiaries of the CDC.
(i) Audited financial statements must,
at a minimum, include the following:
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14:27 Feb 22, 2013
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(A) Audited balance sheet;
(B) Audited statement of income (or
receipts) and expenses;
(C) Audited statement of source and
application of funds;
(D) Such footnotes as are necessary to
understand the financial statements;
(E) Auditor’s letter to management on
internal control weaknesses; and
(F) The auditor’s report.
(ii) Reviewed financial statements
must, at a minimum, include the
following:
(A) Balance sheet;
(B) Statement of income (or receipts)
and expenses;
(C) Statement of source and
application of funds;
(D) Such footnotes as are necessary to
an understanding of the financial
statements; and
(E) The accountant’s review report.
(2) Report on compensation. CDCs are
required to provide detailed information
on total compensation (including salary,
bonuses and expenses) paid within the
CDC’s most recent tax year for current
and former officers and directors, and
for current and former employees and
independent contractors with total
compensation of more than $100,000
during that period.
(3) Certification of members of the
Board of Directors. Written annual
certification by each Board member that
he or she has read and understands the
requirements set forth in § 120.823.
(4) Report on investment in economic
development. Written report on
investments in economic development
in each State in which the CDC has an
outstanding 504 loan.
*
*
*
*
*
■ 8. Amend § 120.835 by revising
paragraph (c) to read as follows:
■
§ 120.835 Application to expand an Area of
Operations.
12645
■
*
*
*
*
*
(c) Multi-State CDC Expansion. A
CDC may apply to be a Multi-State CDC
only if the state the CDC seeks to
expand into is contiguous to the State of
the CDC’s incorporation and the CDC
has a loan committee meeting the
requirement of § 120.823.
■ 9. Amend § 120.882 by revising
paragraph (a) to read as follows:
§ 120.882
loans.
Eligible Project costs for 504
*
*
*
*
*
(a) Costs directly attributable to the
Project including expenditures incurred
by the Borrower (with its own funds or
from a loan) to acquire land used in the
Project, or for any other expense directly
attributable to the Project, prior to
applying to SBA for the 504 loan;
*
*
*
*
*
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10. Amend § 120.920 by adding two
sentences at the end of paragraph (b) to
read as follows:
§ 120.920 Required participation by the
Third Party Lender.
*
*
*
*
*
(b) * * * The 504 loan is usually
collateralized by a second lien on
Project Property (‘‘Common Collateral’’).
If the Third Party Lender requires a lien
on collateral in addition to the Common
Collateral, in the event of liquidation,
the Third Party Lender must apply the
proceeds from the sale of such
additional collateral to the balance
outstanding on the Third Party Loan
prior to the application of proceeds from
the sale of the common collateral to the
Third Party Loan.
§ 120.925
■
[Removed]
11. Remove § 120.925.
PART 121—SMALL BUSINESS SIZE
REGULATIONS
12. The authority citation for part 121
continues to read as follows:
■
Authority: 15 U.S.C. 632, 634(b)(6), 636(b),
662, and 694a(9).
13. Amend § 121.103 by removing and
reserving paragraph (a)(7) and adding
paragraph (a)(8) to read as follows:
■
§ 121.103 How does SBA determine
affiliation?
(a) * * *
(8) For applicants for 7(a) loans, 504
loans and microloans, affiliation is
determined under § 121.302 instead of
this § 121.103.
*
*
*
*
*
§§ 121.302 through 121.305 [Redesignated
as §§ 121.303 through 121.306]
14. Redesignate §§ 121.302 through
121.305 as §§ 121.303 through 121.306
and add a new § 121.302 to read as
follows:
§ 121.302. Principles of affiliation to
determine size of applicants for 7(a) loans,
504 loans, and microloans.
(a) General principles of affiliation.
Generally, affiliation exists when one
concern controls or has the power to
control another, or when a third party
(or parties) controls or has the power to
control both concerns. Control may arise
through ownership, management, or
other relationships or interactions
between the parties. In determining an
applicant’s size, SBA counts the
receipts, employees, or other measure of
size of the applicant whose size is at
issue and all of its domestic and foreign
affiliates, regardless of whether the
affiliates are organized for profit. The
exceptions to affiliation coverage set
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Federal Register / Vol. 78, No. 37 / Monday, February 25, 2013 / Proposed Rules
forth in § 121.103(b) are incorporated
into this section by reference. SBA will
not consider negative control, by itself,
as set forth in § 121.103(a)(3) of this part
to create affiliation under this section.
In determining affiliation under this
section, SBA will consider the totality of
the circumstances to determine whether
affiliation exists, even though no single
factor may be sufficient to constitute
affiliation.
(b) Affiliation based on ownership.
For determining affiliation based on
ownership:
(1) A concern is an affiliate of a
person (including any individual,
concern or other entity) that owns or has
the power to control more than 50
percent of the voting equity of the
concern. If no person owns or has the
power to control more than 50 percent
of a concern’s voting equity, SBA will
deem the Chief Executive Officer (CEO)
or President of the concern (or other
officers, managing members, partners, or
directors who control the management
of the concern) to be in control of the
concern.
(2) If any two or more persons
(including any individual, concern or
other entity) collectively own or have
the power to control more than 50
percent of the voting equity of two or
more concerns (the ‘‘collective
owners’’), then there is affiliation
between such concerns and between
each concern and each collective owner.
(c) Affiliation arising under options,
convertible securities, and agreements
to merge. In determining size, SBA
considers options, convertible
securities, and agreements to merge
(including agreements in principle) to
have a present effect on the power to
control a concern. SBA treats such
options, convertible securities, and
agreements as though the rights granted
have been exercised.
(1) Agreements to open or continue
negotiations towards the possibility of a
merger or a sale of stock or other equity
at some later date are not considered
‘‘agreements in principle’’ and are thus
not given present effect.
(2) Options, convertible securities,
and agreements that are subject to
conditions precedent which are
incapable of fulfillment, speculative,
conjectural, or unenforceable under
state or Federal law, or where the
probability of the transaction (or
exercise of the rights) occurring is
shown to be extremely remote, are not
given present effect.
(3) An individual, concern or other
entity that controls one or more other
concerns cannot use options,
convertible securities, or agreements to
appear to terminate such control before
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14:27 Feb 22, 2013
Jkt 229001
actually doing so. SBA will not give
present effect to individuals’, concerns’
or other entities’ ability to divest all or
part of their ownership interest in order
to avoid a finding of affiliation.
(d) Affiliation based on common
management. Affiliation exists where
the CEO or President of a concern (or
other officers, managing members,
partners or directors who control the
management of the concern) also
controls the management of one or more
other concerns. Affiliation also arises
where a single person or entity that
controls the board of directors of one
concern also controls the board of
directors or management of one or more
other concerns.
(e) Affiliation based on franchise,
license and similar agreements. If the
applicant is a franchisee, licensee or
other similar entity, the provisions of
§ 121.103(i) apply.
(f) Affidavit of applicant. Each
applicant for a 7(a) loan or a 504 loan
must include as part of its application
for financial assistance an Affidavit in
which it discloses all owners of the
applicant and their percentage of
ownership and discloses any affiliates
as determined under this section. The
Affidavit must be executed by the
applicant’s CEO or equivalent.
Dated: February 19, 2013.
Karen G. Mills,
Administrator.
[FR Doc. 2013–04221 Filed 2–22–13; 8:45 am]
BILLING CODE 8025–01–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. FAA–2013–0145; Directorate
Identifier 2012–SW–059–AD]
RIN 2120–AA64
Airworthiness Directives; Agusta
S.p.A. and Bell Helicopter Textron
Helicopters
Federal Aviation
Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking
(NPRM).
AGENCY:
We propose to adopt a new
airworthiness directive (AD) for Agusta
S.p.A. (Agusta) Model AB412 and
AB412 EP, and Bell Helicopter Textron
(Bell) Model 412, 412CF, and 412EP
helicopters with certain DART
Aerospace Ltd. (Dart) high gear aft
crosstubes (crosstube) installed. This
proposed AD would require adding a
life limit of 10,000 landings to the
SUMMARY:
PO 00000
Frm 00014
Fmt 4702
Sfmt 4702
crosstube and removing from service
any crosstubes with more than 10,000
accumulated landings. This proposed
AD is prompted by five separate reports
of crosstube failures. The actions in this
proposed AD are intended to prevent
failure of the crosstube and subsequent
collapse of the landing gear.
DATES: We must receive comments on
this proposed AD by April 26, 2013.
ADDRESSES: You may send comments by
any of the following methods:
• Federal eRulemaking Docket: Go to
https://www.regulations.gov. Follow the
online instructions for sending your
comments electronically.
• Fax: 202–493–2251.
• Mail: Send comments to the U.S.
Department of Transportation, Docket
Operations, M–30, West Building
Ground Floor, Room W12–140, 1200
New Jersey Avenue SE., Washington,
DC 20590–0001.
• Hand Delivery: Deliver to the
‘‘Mail’’ address between 9 a.m. and 5
p.m., Monday through Friday, except
Federal holidays.
Examining the AD Docket
You may examine the AD docket on
the Internet at https://
www.regulations.gov or in person at the
Docket Operations Office between 9
a.m. and 5 p.m., Monday through
Friday, except Federal holidays. The AD
docket contains this proposed AD, the
economic evaluation, any comments
received, and other information. The
street address for the Docket Operations
Office (telephone 800–647–5527) is in
the ADDRESSES section. Comments will
be available in the AD docket shortly
after receipt.
For service information identified in
this proposed AD, contact Dart
Aerospace LTD., 1270 Aberdeen St,
Hawkesbury, ON, K6A 1K7, Canada;
telephone: 1 613 632 5200; Fax: 1 613
632 5246; or at www.dartaero.com. You
may review the referenced service
information at the FAA, Office of the
Regional Counsel, Southwest Region,
2601 Meacham Blvd., Room 663, Fort
Worth, Texas 76137.
FOR FURTHER INFORMATION CONTACT:
Jeffrey Zimmer, Airframe Engineer, New
York Aircraft Certification Office,
Engine and Propeller Directorate, FAA,
1600 Stewart Ave., Suite 410, Westbury,
New York 11590; telephone (516) 228–
7306; email jeffrey.zimmer@faa.gov.
SUPPLEMENTARY INFORMATION:
Comments Invited
We invite you to participate in this
rulemaking by submitting written
comments, data, or views. We also
invite comments relating to the
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Agencies
[Federal Register Volume 78, Number 37 (Monday, February 25, 2013)]
[Proposed Rules]
[Pages 12633-12646]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-04221]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 78, No. 37 / Monday, February 25, 2013 /
Proposed Rules
[[Page 12633]]
SMALL BUSINESS ADMINISTRATION
13 CFR Parts 120 and 121
RIN 3245-AG04
504 and 7(a) Loan Programs Updates
AGENCY: U.S. Small Business Administration.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The U.S. Small Business Administration (``SBA'') has
determined that changing conditions in the American economy and
persistent high levels of unemployment compel the agency to seek ways
to improve access to its two flagship business lending programs: the
504 Loan Program and the 7(a) Loan Program. The purpose of this
proposed rulemaking is to reinvigorate these programs as vital tools
for creating and preserving American jobs. SBA proposes to strip away
regulatory restrictions that detract from the 504 Loan Program's core
job creation mission as well as the 7(a) Loan Program's positive job
creation impact on the American economy. The 504 Loan Program and 7(a)
Loan Program are SBA's two primary business loan programs authorized
under the Small Business Investment Act of 1958 and the Small Business
Act, respectively. This proposed rule will enhance job creation through
increasing eligibility for loans under SBA's business loan programs,
including its Microloan Program, and by modifying certain program
participant requirements applicable to the 504 Loan Program. In
addition, SBA proposes to revise Certified Development Company (CDC)
operational requirements to clarify certain existing regulations.
DATES: SBA must receive comments to this proposed rule on or before
April 26, 2013.
ADDRESSES: You may submit comments, identified by RIN: 3245-AG04 by any
of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Email: ocareg2013@sba.gov. Include RIN 3245-AG04 in the
subject line of the message.
Mail: Patrick Kelley, Deputy Associate Administrator,
Attention: Linda Reilly, Chief, 504 Program Branch, Office of Capital
Access, U.S. Small Business Administration, 409 Third Street SW.,
Washington, DC 20416.
Hand Delivery/Courier: Patrick Kelley, Deputy Associate
Administrator, Attention: Linda Reilly, Chief, 504 Program Branch,
Office of Capital Access, U.S. Small Business Administration, 409 Third
Street SW., Washington, DC 20416.
SBA will post all comments on www.regulations.gov. If you wish to
submit confidential business information (CBI) as defined in the User
Notice at www.regulations.gov, please submit the information to Patrick
Kelley, Deputy Associate Administrator, Attention: Linda Reilly, Chief,
504 Program Branch, Office of Capital Access, U.S. Small Business
Administration, 409 Third Street SW., Washington, DC 20416, or send an
email to ocareg2013@sba.gov. Highlight the information that you
consider to be CBI and explain why you believe SBA should hold this
information as confidential. SBA will review the information and make
the final determination whether it will publish the information.
FOR FURTHER INFORMATION CONTACT: Linda Reilly, Chief, 504 Program
Branch, Office of Financial Assistance, Small Business Administration,
409 3rd Street SW., Washington, DC 20416; telephone 202-205-9949.
SUPPLEMENTARY INFORMATION:
I. Background Information
Executive Order 13563 directs agencies to ensure that regulations
are accessible, consistent, written in plain language, and easy to
understand in order to foster economic growth and job creation.
Executive Order 13563 provides that our regulatory system ``must
identify and use the best, most innovative, and least burdensome tools
for achieving regulatory ends.'' (emphasis added). Executive Order
13563 further provides that ``[t]o facilitate the periodic review of
existing significant regulations, agencies shall consider how best to
promote retrospective analysis of rules that may be outmoded,
ineffective, insufficient, or excessively burdensome, and to modify,
streamline, expand, or repeal them in accordance with what has been
learned.'' (emphasis added). SBA has reviewed its regulations with
regard to the loan programs and is proposing a number of amendments and
revisions to accomplish this goal.
SBA's primary business loan programs are the 504 Loan Program (the
``504 Loan Program''), authorized pursuant to Title V of the Small
Business Investment Act of 1958, 15 U.S.C. 695 et seq., and the 7(a)
Loan Program (the ``7(a) Loan Program'') authorized pursuant to Section
7(a) of the Small Business Act, 15 U.S.C. 631 et seq. (collectively
referred to as the ``504 and 7(a) Loan Programs''). A description of
each loan program is set forth below.
A. SBA's 504 Loan Program
The 504 Loan Program is an SBA financing program established to
target companies in their growth cycle to create jobs, expand the tax
base, and improve American communities. Specifically, the core mission
of the 504 Loan Program is to provide long-term fixed asset financing
to small businesses for the purchase or improvement of land, buildings,
and major equipment purchases, in an effort to facilitate the creation
of jobs and local economic development.
Under the 504 Loan Program, loans are made to small business
applicants by Certified Development Companies (``CDCs''), which are
SBA's community-based partners for providing 504 Loans. With the
exception of several for-profit CDCs grandfathered into the 504 Loan
Program, a CDC is a nonprofit corporation that promotes economic
development within its community through 504 Loans. CDCs are certified
and regulated by the SBA, and work with SBA and participating lenders
(typically banks) to provide financing to small businesses, which in
turn, accomplishes the goal of community economic development. There
are over 260 CDCs nationwide each with a defined Area of Operations
covering a specific geographic area. The Area of Operation for most
CDCs is the state in which they are incorporated.
Transactions under the 504 Loan Program are typically structured
with a CDC providing 40% of the total project costs (with SBA's
guarantee assistance),
[[Page 12634]]
a participating lender covering up to 50% of the total project costs,
and the borrower contributing 10% of the project costs. Under certain
circumstances, a borrower may be required to contribute up to 20% of
the total project costs.
In sum, the 504 Loan Program is an economic development tool and
its success is measured, in large part, by the number of jobs it
preserves and creates. In FY 2012, the agency made 7,047 loans through
the 504 Loan Program, for a total volume of $4.4 billion, which led to
the creation and/or retention of almost 80,000 jobs. SBA estimates that
the proposed regulation revisions, set forth in detail below, will
result in approximately 140,000 additional jobs created/retained over a
five-year period. These additional jobs created/retained are based on
an estimated 47,000 loans being made between FY 2013 and FY 2017, with
an estimated total dollar volume of almost $30 billion and the
creation/retention of over 500,000 jobs over the five-year period. The
changes proposed primarily with regard to the Personal Resources Test
and affiliation will increase the number of eligible borrowers.
B. SBA's 7(a) Loan Program
The 7(a) Loan Program's main purpose is to help eligible small
businesses obtain credit when they cannot obtain ``credit elsewhere.''
In addition, the agency recognizes that the 7(a) Loan Program is also
an important engine for job creation. The 7(a) Loan Program provides
financing for general business purposes through the agency's guaranty
of a loan made by an approved lender. Currently, there are
approximately 4,500 lenders participating in the 7(a) Loan Program.
Below is a summary of the proposed changes to these business loan
programs. The agency requests comments on all of the proposed
regulatory revisions in this proposed rule, and on any related issues
affecting the 7(a) Loan Program or the 504 Loan Program. SBA's intent
is to revitalize the use of both loan programs as an engine of job
retention and growth in an effort to use ``the best, most innovative,
and least burdensome tools for achieving regulatory ends * * * and seek
to improve, the actual results of regulatory requirements'' in
accordance with Executive Order 13563.
II. Summary of Proposed Business Loan Program Changes
Though SBA's business loan programs differ in mission and focus,
these loan programs share fundamental eligibility criteria and
overlapping objectives. The goal of the proposed rule is to
reinvigorate the business loan programs by eliminating unnecessary
compliance burdens and loan eligibility restrictions in an effort to
make necessary adjustments to increase lender accessibility without
sacrificing program integrity. The major changes that SBA is proposing
are described below, including changes relating to affiliation
principles, the personal resources test, the 9-month rule for the 504
Loan Program, and CDC operational and organizational requirements.
Additional changes are described in the section-by-section analysis.
A. Affiliation as Applied to the Business Loan Programs
Under SBA's regulations, applicants for an SBA loan must be small
under SBA's size requirements (including affiliates) to be eligible for
an SBA business loan. 13 CFR 120.100. When an entity is determined to
be affiliated with an applicant, the entity's receipts and employees
are added to those of the applicant for purposes of determining its
size. Thus, certain businesses are deemed to be ineligible for
assistance because they are not deemed to be ``small'' for program
purposes by virtue of their combined size with affiliated entities.
SBA's regulations, at Sec. 121.103, set forth the agency's
principles of affiliation. Generally, affiliation exists when one
business controls or has the power to control another or when a third
party (or parties) controls or has the power to control both
businesses. Control may arise through ownership, management, or other
relationships or interactions between the parties. Affiliation is an
important issue when determining size because SBA counts the receipts,
employees, or other measure of the business, for all of a small
business' domestic and foreign affiliates, regardless of whether the
affiliates are organized for profit (13 CFR 121.103(a)(6)). SBA's
affiliation rules generally apply to all Federal programs for which a
business must qualify as ``small,'' including SBA's Government
Contracting or Business Development programs, business loan programs
and grant programs. Therefore, applicants for financing under the 504
Loan Program, 7(a) Loan Program or Microloan Program must qualify as
``small businesses'' taking into consideration the employees, receipts,
and other measures of business of the applicant and all of the
applicant's affiliates.
SBA believes that, in general, most of the principles of
affiliation set forth in Sec. 121.103 appropriately apply to the
agency's business loan programs. However, SBA believes that certain
affiliation principles--such as those concerning newly organized
concerns--are not applicable to the 504 and 7(a) Loan Programs or the
Microloan Program because assisting in the creation of new small
businesses serves the purpose of the business loan programs. In
addition, SBA is seeking to create a simple, bright-line test for
business loan program applicants when determining eligibility with
respect to size and affiliation. By eliminating or modifying certain
affiliation principles, this proposed rule would also significantly
reduce the burden on applicants of providing affiliation documentation.
As described below, SBA is proposing to add a new Sec. 121.302 to
identify the principles of affiliation that should apply to the
business loan programs in place of the affiliation principles set forth
in Sec. 121.103, and invites comments on these proposed changes.
With respect to determining affiliation based on ownership, the
following principles currently apply to the business loan programs: (1)
If the business concern's stock is widely held and no single block of
stock is large as compared to others, the board of directors and Chief
Executive Officer or President is deemed to have the power to control
the business, absent evidence showing otherwise; (2) if two or more
persons (including any individual, concern or other entity) each owns,
controls or has the power to control less than 50% of the concern's
voting stock, and the blocks of stock are equal or approximately equal
in size and the blocks of stock are large in the aggregate as compared
with any other stock holding, SBA presumes that each person controls or
has the power to control the business concern whose size is at issue;
or (3) if a person (including any individual, concern or other entity)
owns, or has the power to control, 50 percent or more of a concern's
voting stock, or a block of voting stock which is large compared to
other outstanding blocks of voting stock, such person controls or has
the power to control the business concern. It is also important to note
that SBA's current affiliation rules (Sec. 121.103(a)(3)) may find
affiliation based on ``affirmative control'' (e.g., owning more than
50% of the voting stock of a company) as well as ``negative control''
(e.g., owning less than 50% but still having the ability to block
votes).
SBA is proposing to amend the principles described above for
affiliation based on ownership in a manner similar to changes recently
proposed by SBA for the Small Business Innovation Research
[[Page 12635]]
and Small Business Technology Transfer programs (77 FR 28520, May 15,
2012). Under these proposed changes, SBA would deem the Chief Executive
Officer (CEO) or President of the concern (or other officers, managing
members, partners, or directors who control the management of the
concern) to control the concern when no one person owns or has the
power to control more than 50% of the voting equity of the concern. SBA
believes that for purposes of the agency's business loan programs,
control in this situation would rest with the managing parties
identified above since it is those parties that are truly running the
concern. If one person does own or has the power to control more than
50% of the voting equity of the concern, that person is in control of
the concern for purposes of determining affiliation. In addition, if
two or more persons collectively own or have the power to control more
than 50% of the voting equity of two or more concerns (the ``collective
owners''), then there would be affiliation between such concerns and
between each concern and each collective owner. In addition, in this
proposed rule, SBA refers to 50% ownership or equity without
designating that it is ``stock'' ownership because not all business
loan applicants are corporations with ownership determined through
stock issuance. SBA is also proposing to not consider ``negative
control,'' by itself, as a factor in determining affiliation.
SBA requests comments on this proposed rule as it relates to
business loan applicants where no person owns a majority of the
applicant, and whether SBA should: (1) Retain the current affiliation
rule with respect to minority holdings and, if so, whether it should
set forth a specific threshold by which it will find control and
therefore affiliation (e.g., if a person owns 33% or more of the
company) in order to create a bright-line test for applicants; (2) find
affiliation, as proposed, if two or more persons or concerns
collectively own more than 50% of the applicant, and the same persons
or concerns collectively own more than 50% of any other company or
entity; or (3) implement a rule setting forth both options (1) and (2)
above.
In addition to incorporating the above principles of affiliation
based on ownership, SBA is proposing to incorporate in Sec. 121.302(c)
and (e), respectively, the existing affiliation principles currently
contained in Sec. 121.103(c) (Affiliation arising under stock options,
convertible securities, and agreements to merge) and Sec. 121.103(i)
(Affiliation based on franchise and license agreements). SBA is also
proposing to incorporate in Sec. 121.302(d), with slight
modifications, the existing affiliation principles currently contained
in Sec. 121.103(e) (Affiliation based on common management).
In addition to the above proposed change, SBA proposes changing
current affiliation principles relating to the following three areas:
identity of interest; newly organized concerns; and joint ventures.
First, with respect to affiliation based on identity of interest, SBA
proposes to not apply the current affiliation principle relating to
identity of interest set forth in Sec. 121.103(f) to the 504 Loan
Program, the 7(a) Loan Program or the Microloan Program. Affiliation
through identity of interest often is found between business partners,
family members, and employers. SBA is aware that an applicant may have
relationships with former employers, business partners, friends, or
family members which can be important to the business success of the
applicant. These relationships often strengthen the creditworthiness of
the applicant by providing the applicant with more resources from which
to draw, thus lowering taxpayer risk while increasing the job creation
and small business growth missions of the business loan programs. It is
the agency's view that these relationships are common and, in the
context of the business loan programs, should not prevent an applicant
from independently operating and growing a business and creating jobs.
Moreover, small businesses would have less of a financial incentive to
use family members or former employees as business ``fronts'' to obtain
a business loan than to obtain a grant or bid on a contract under a
government set-aside program. Businesses would appear to have little
incentive to incur debt through the use of such tactics because, unlike
a grant or contract, the debt must eventually be repaid. Weighing all
of these factors, the agency proposes to end application of the
identity of interest affiliation rule to the business loan programs;
however, it strongly encourages comment on this proposal especially as
it relates to potential threats to business loan program integrity.
Second, with respect to affiliation based on a newly organized
concern, SBA proposes to not apply the current affiliation principle
relating to newly organized concerns set forth in Sec. 121.103(g) to
the 504 Loan Program, the 7(a) Loan Program or the Microloan Program.
The agency proposes this change for substantially the same reasons it
is proposing the change related to identity of ownership discussed
above. If employees of a former employer form a new business and the
former employer does not have ownership control of the new business,
SBA believes that for purposes of the business loan programs the former
employees will generally have sufficient independence and control of
the newly formed business to not be affiliated with the former
employer. The newly organized concern principle is needed in the
agency's grant and contracting programs to prevent large companies from
misrepresenting themselves as small through a shell company in order to
obtain a grant or lucrative government contract intended as a small
business set aside. However, the principle is not necessary in the
business loan programs because larger companies have greater access to
private sector capital sources than small businesses and would have
little need to form a new concern to obtain a government loan. Thus,
the agency is proposing to exempt agency business loan program
applicants from application of the affiliation based on newly organized
concern rule.
Finally, with respect to affiliation based on joint ventures, SBA
proposes to not apply the current affiliation principle relating to
affiliation based on joint ventures set forth in Sec. 121.103(h) to
the 504 Loan Program, the 7(a) Loan Program or the Microloan Program.
Agency records indicate that applicants for assistance under agency
business loan programs are rarely, if ever, joint ventures and,
therefore, this provision is unnecessary for the business loan
programs. This proposed change is being made in the interest of
streamlining and simplifying business loan program rules, and to
provide bright line eligibility criteria regarding affiliation
determinations for the business loan programs.
In conjunction with proposing the above revisions to 504 Loan
Program regulations to expand program accessibility, streamline
complicated processes, and minimize burdens to applicants and lenders,
SBA seeks to ensure program integrity and maintain proper oversight
through the following means. First, to assist in ensuring compliance
with the affiliation principles, SBA proposes to require applicants to
sign an affidavit certifying that all persons affiliated with the
applicant have been identified in the affidavit. It is the agency's
view that applicants are expected to know and disclose these persons
and requiring this disclosure under sworn statement to the Federal
government should deter applicants from omitting important
[[Page 12636]]
information necessary for determining compliance with the applicable
size requirements. An affidavit on affiliate certifications would
enable participant lenders to improve consistency and would also
expedite SBA's review of the size eligibility of potential applicants.
Completing the affidavit to document affiliated business owners of 50%
or less would be less burdensome on applicants than having to submit
tax documents or financial statements. In fact, SBA estimates that the
proposed revision would reduce the burden on participants in both loan
programs (both borrowers and lenders) by a total of 26,402 hours and
result in savings totaling $700,777. Based on estimates using FY 2012
loan approvals as a base, the annual savings to borrowers for both
programs combined is estimated at $700,000 and $750,000 annually.
Similarly, SBA estimates that the proposed revision will reduce burden
to the government by a total of 2,666 hours and result in savings
totaling $78,085. Based on estimates using FY 2012 approvals as a base,
this burden reduction in loan review time combined for both loan
programs, is estimated at between $80,000 and $100,000 annually. Thus,
not only would the affidavit on affiliates be a control mechanism to
ensure against abuse of SBA's guaranty and simplify and reduce
potential mistakes in size standard decisions, but it would also be a
critical time and cost saving measure, as demonstrated by the above
data.
Second, and notwithstanding the agency's goal to provide bright
line eligibility criteria regarding affiliation determinations for the
business loan programs, the agency realizes that egregious cases of
large entities benefiting from a small business loan program can
threaten program integrity and public support. Thus, the agency
proposes to add a provision applicable only to the business loan
programs which would give the agency the discretion to prevent business
loan program participation of an applicant if, after consideration of
the totality of the circumstances, it determines that affiliation
exists rendering the applicant ineligible, even when no single factor
is sufficient to constitute affiliation. For example, a finding of
affiliation may be appropriate if an applicant lists a minor child as a
majority owner and CEO of a concern, but a parent of the child actually
owns or has the power to control the business. The Agency would look
beyond the fiction of the child's ownership and position to determine
who actually controls the business, and consider the affiliates of the
party in control.
The agency does not expect to use this discretionary provision
often and intends to apply it only in egregious cases, one being the
example identified above, that might threaten business loan program
integrity or viability. SBA encourages comments and suggestions
regarding this proposal and, specifically, regarding additional
standards to prevent loans to ineligible applicants, which could
endanger the viability of the loan programs.
In sum, the elimination of unnecessary affiliation tests from the
business loan programs would expand program eligibility to
independently owned and controlled small businesses that would have
previously been considered ineligible. This is illustrated by the fact
that the SBA 504 loan program has not exhausted its program authority
in the last 6 years. From 2006 through 2011, approximately 32% of
authorized funds have gone unused. In 2012, SBA had left unused 41% of
its 504 loan program authorized funds. Therefore, SBA recognizes the
need to expand access to the program to more small businesses.
Moreover, as a result, this proposed change would also
significantly reduce the excessive burden that is imposed on all
eligible small businesses and participating lenders to provide
documentation for numerous affiliates to make size evaluations. Under
the current regulations for both loan programs, SBA estimates that
borrowers and lenders expend $7,274,657 and spend 274,448 hours on
providing the documentation for numerous affiliates for SBA to make
size determinations. Under the proposed revisions, the SBA estimates
that lenders and borrowers would expend $6,573,880 and spend 248,046
hours on providing the necessary documents to SBA. Along those same
lines, under current regulations, SBA estimates that the Agency expends
approximately $1,567,246 and 53,549 hours on reviewing all of the
documents in making size eligibility determinations. Under the proposed
revisions, the SBA estimates expending $1,489,161 and 50,883 hours on
reviewing the necessary documents.
By mitigating the burdens imposed by the current regulations and
streamlining processes, the proposed rule would expand eligibility for
the 504 and 7(a) Loan Programs, as well as SBA's Microloan Program
authorized under section 7(m) of the Small Business Act (the
``Microloan Program''), by redefining the permitted affiliations for
borrowers for purposes of determining the applicant's size, but
balancing that expansion by requiring an affidavit as to ownership and
including a discretionary provision allowing the SBA to analyze the
``totality of the circumstances'' in egregious cases.
B. The Personal Resources Test
An applicant is ineligible for financing under the agency's
business loan programs if it can obtain credit elsewhere. A brief
history surrounding the current regulation is instructive here. The
initial version of Section 7(a) of the Small Business Act authorized
SBA to make loans to small businesses with the restriction that ``no
financial assistance shall be extended * * * unless the financial
assistance applied for is not otherwise available on reasonable
terms.'' (Pub. L. 85-536, 72 Stat 388 (1958)). During the initial
implementation of the 7(a) Loan Program in 1958, the agency interpreted
the financial resources test to include the requirement that the funds
applied for by the applicant ``not appear to be obtainable without
undue hardship through utilization of the personal credit or resources
of the owner, partners, management, or principal shareholders of the
applicant.'' (23 FR 10513, December 31, 1958). Thus, the agency
required documentation that obtaining the needed financing through use
of personal credit or personal resources would create undue hardship
before the applicant would be eligible for agency assisted financing.
As early as 1971, the agency received feedback from the U.S.
General Accounting Office that loans or guarantees were being made on
behalf of applicants in greater amounts than were necessary considering
the personal credit and personal resources of those applicants. The
recommendation at that time was that the agency create criteria that
would specify to agency loan specialists when a loan should be
disapproved or agency participation reduced because the personal
resources or credit of principals were substantial enough to be used
without undue hardship of the principals.
In response, SBA began to provide strict criteria including
procedures for ``careful review'' of any person with 20% ownership in
the company or engaged in active management of the company (and in
tandem excusing from review persons with less than 5% ownership
interest in the applicant with no active management role with the
applicant). Still, there was no bright-line established for what would
presumptively constitute an ``undue hardship'' or what contribution of
personal resources was appropriate. For
[[Page 12637]]
example, in the agency's standard operating procedures effective in
1985, guidance to loan specialists for the 7(a) Loan Program stated
that ``reasonable utilization of personal assets'' of applicant
principals applied to each principal's family as well, with exemptions
for cash surrender of life insurance and IRAs, reasonable education
expenses, and an additional exemption for each family equal to $50,000
or 25% of the loan amount, whichever was greater. (SBA SOP 50 10 2A
(page 38, effective September 16, 1985) (available upon request.))
There was also guidance regarding the requirement that certain family
real estate could be counted as personal resources to be used in lieu
of program assistance (e.g., ``refinancing or sale of real estate may
be considered when a principal owner has funds readily available
through sale or refinancing that would provide a majority of the loan
request'' though owner occupied residences were generally exempted and
there was an exemption when ``these general rules appear to work as a
hardship due to the circumstances of the individual case.'') (SBA SOP
50 10 2A (page 39, effective September 16, 1985) (available upon
request.)) This history demonstrates the difficulty the agency had in
establishing clear standards for determining when the use of personal
resources would create undue hardship to the principals of a business.
In 1996, the agency revised its regulations in an effort to create a
more objective standard by quantifying the amount of personal resources
that must be injected into the business. (61 FR 3226, January 31, 1996)
While there have been numerous amendments to Section 7(a), the
credit elsewhere restriction has remained, with slight modifications.
For instance, the phrase ``credit elsewhere'' was introduced in 1981
when the provision was changed to read that ``[n]o financial assistance
shall be extended pursuant to this subsection if the applicant can
obtain credit elsewhere.'' (The Small Business Budget Reconciliation
and Loan Consolidation/Improvement Act of 1981, Pub. L. 97-35, title
XIX, section 1902, 95 Stat. 767 (1981)). A definition for ``credit
elsewhere'' was added at the same time. Section 3(h) of the Small
Business Act defines ``credit elsewhere'' as the ``availability of
credit from non-Federal sources on reasonable terms and conditions
taking into consideration the prevailing rates and terms in the
community in or near where the concern transacts business, or the
homeowner resides, for similar purposes and periods of time.'' 15
U.S.C. 632(h).
Similarly, for the 504 Loan Program, section 503(b)(2) of the Small
Business Investment Act of 1958 authorizes financing of applicants only
when ``necessary funds for making such loans are not available to such
companies from private sources on reasonable terms.'' Historically, to
meet this requirement, the agency verified that private financing on
reasonable terms was not available to the 504 applicant, but did not
require a review of the personal resources of the applicant's
principals and owners. As late as 1993, the agency issued standard
operating procedures that instructed loan specialists that the
availability of personal resources would not usually disqualify an
applicant from receiving assistance under the 504 Loan Program because
the primary focus of that program was economic development (job
creation). (SBA SOP 50 22 3A (page 58, effective December 30, 1993)
(available upon request)). In 1995, however, SBA published proposed
regulations explaining that the agency had come to the conclusion that
``there is no difference between the business loan programs regarding
evidence of need [and that] SBA will consider the personal wealth and
resources of the principals and owners in determining an applicant's
need for SBA financial assistance in all business loan programs, and
SBA may require the principals and owners of the applicant to use their
personal resources before SBA will grant financial assistance'' (60 FR
64362, December 15, 1995). This change was adopted as final in 1996,
and the 504 Loan Program was made subject to the same personal
resources test as the 7(a) Loan Program. (61 FR 3226, January 31,
1996).
Under the current personal resources test for the 7(a) and 504 Loan
Programs, an assessment is required of the liquid assets of each owner
of 20 percent or more of the equity of the applicant company to
determine the overall dollar value of personal resources that do not
have to be injected into the business (referred to as the
``exemption''). The current allowable exemption is determined on the
basis of the ``total financing package.'' The total financing package
includes any SBA loans, together with any other loans, equity
injection, or business funds used or arranged for at the same general
time for the same project as the SBA loan. If the total financing
package:
Is $250,000 or less, the exemption is two times the total
financing package or $100,000, whichever is greater;
Is between $250,001 and $500,000, the exemption is one and
one-half times the total financing package or $500,000, whichever is
greater; or
Exceeds $500,000, the exemption equals the total financing
package or $750,000, whichever is greater.
Once the exemption is determined, it is subtracted from the liquid
assets. If the result is positive, that amount must be injected into
the project.
The agency is proposing to eliminate this personal resources test
from the regulations. SBA has become concerned, that even borrowers
whose principals have significant personal resources may be unable to
obtain long-term fixed asset financing from private sources at
reasonable rates. The agency is now questioning whether the existence
of personal resources directly correlates to the ability to obtain
commercial credit on reasonable terms and is, therefore, rethinking the
appropriateness of using personal resources as an indirect means of
determining whether credit is available from private sources. The
agency believes it is part of the agency's core mission regarding the
assistance of small businesses to increase access to capital and that a
personal resource test does not promote access to capital as it
unnecessarily restricts the pool of potential investors for small
businesses that participate in both loan programs. The agency notes
that if the personal resources test is eliminated, more robust
borrowers will be eligible to participate in the 504 and 7(a) Loan
Programs, The agency is proposing to eliminate this personal resources
test from the regulations thereby mitigating risk to the agency's
portfolio of loans while facilitating job growth. Based on the agency's
records, the number of loan approvals dropped by 42% in 1997, the year
after the personal resource test was first instituted for the 504 Loan
Program. As the recession has limited access to capital, eliminating
the personal resource test would assist small businesses in attracting
more types of investors.
For reasons set forth above, the agency believes that the core
business loan program missions, including the core job creation mission
of the 504 Loan Program (15 U.S.C. 695) and the small business credit
support mission of the 7(a) Loan Program (15 U.S.C. 636), would best be
served by focusing on the statutory requirement regarding the
availability of credit on reasonable terms without attempting to
document and enforce precise determinations regarding the
appropriateness of personal resource contributions. The agency is
therefore proposing to
[[Page 12638]]
eliminate the personal resources test from the regulations for both
loan programs.
The agency continues to believe, however, that the personal
resources of the applicant should be taken into consideration in
determining what equity injection, if any, should be required of the
applicant's principals and owners. Prudent lending includes a
determination that the business is adequately capitalized and, if not,
that available personal resources be injected into the business. In
addition, it is important to note that agency regulations require that
persons with a 20% or more ownership interest in an applicant guarantee
a business loan program financing (and other persons may also be
required to provide personal guarantees). This means that if such
guarantors have substantial personal resources, those resources will
conditionally support the financing.
SBA invites comments on this specific issue and on the general
issue of whether a personal resources test should be retained and, if
so, in what form.
C. The ``9-Month Rule'' (applies to 504 Loan Program Only)
Under current 504 Loan Program regulations, Sec. 120.882(a)
permits financing of expenses toward a project only if they were
incurred ``within nine months prior to receipt by SBA of a complete
loan application, unless the time limit is extended or waived by SBA
for good cause.'' SBA proposes to eliminate this nine month limitation
and permit financings of expenses toward a project regardless of when
they were incurred. Some general context related to this proposed
revision follows.
Refinancing of debt unrelated to the 504 project is currently
allowed in the 504 Loan Program only pursuant to statutorily limited
circumstances as set forth in Sec. 120.882(e) and (g). There are,
however, circumstances when an applicant might incur short term debt to
cover expenses directly attributable to a larger project that is
eligible for financing under the 504 Loan Program. This is particularly
true when building construction is part of the project. Acquisition of
a building, and particularly the decision to construct from the ground-
up, is the result of planning over months, if not years. Diligent small
business owners approach the process in a series of steps based upon
what is affordable and how the business is performing. Financing for
these initial expenditures also is determined by what is cost-effective
for the business. In such cases, the agency has under certain
conditions allowed those expenses/debts to be included as part of a 504
Loan Program project. What follows is a short summary of the relevant
history of how those conditions evolved under the program to its
current criteria.
On July 5, 1985 (50 FR 27754), SBA proposed Sec. 108.503-5(d),
which allowed financing of expenditures made in anticipation of a
financing under the 504 Loan Program if, among other conditions, the
applicant filed a written notice to SBA within 60 days after the
expenditure.
On June 6, 1986 (51 FR 20764), SBA finalized the above rule and, in
response to comments, added that previously acquired land should be
eligible to be included in project costs without regard to the timing
of the acquisition. It was added as Sec. 108.503-5(d)(2) and the rule
above became (d)(1).
On January 31, 1996 (61 FR 3226), SBA published final regulations
which essentially re-wrote the loan program regulations and in the
process added what is now referred to as the ``9-month rule'' providing
the following explanation in the preamble:
``Sec. 120.882. In the current regulations, costs incurred by a
Borrower in anticipation of receiving a 504 loan are not eligible to
be included in Project costs unless the applicant has filed a
written notice with the CDC and SBA within 60 days of incurring the
expense and SBA gives written approval. As a result, CDCs and SBA
receive notices from many potential borrowers considering 504
financing who desire to maximize potential financing. Many of these
businesses never actually apply or their applications are denied. In
those cases, the written notices are a useless paperwork burden on
SBA, the CDC and the applicant. Therefore, SBA proposed in Sec.
120.882(a)(2) to eliminate the requirement for written notice and
allow as an eligible Project cost any expense incurred toward a
Project within six months of receipt by SBA of a complete loan
application.
SBA received 16 comments opposing the 6 month limit. Commenters
pointed out that in actual practice the time it takes to reach the
point of application is often far greater than 6 months. In many
metropolitan areas, the zoning use permits, building permits, and
other clearances can take 9 to 12 months. Often engineering plans
and architectural drawings may need to be completed or redone, and
lengthy environmental studies may be required. In states like
Minnesota with long winters, the delay between site preparations and
construction may span more than 6 months.
The intent of the proposed rule was to alleviate unnecessary
paperwork. It was not intended to limit eligible costs. Therefore,
SBA increases the limit in this final rule to 9 months and adopts a
comment suggesting a waiver of the limit by the SBA District Office
for good cause, which waiver should not be unreasonably withheld.''
(61 FR 3226 at 3233, (January 31, 1996)).
In practice, exceptions to the 9-month rule have been granted
regularly because, generally speaking, the date the expense was
incurred is a poor indicator as to whether the expense was directly
attributable to the applicant's 504 project. For example, because of
the weak economy, many businesses' expansion plans have been delayed or
placed on hold. Now, in the post-recession recovery period, many small
business owners are preparing to resume their plans only to discover
that expenditures already made, or the method of financing those
expenditures, results in those costs not being eligible for 504
financing. As a result, SBA receives about 6-8 rule exceptions requests
on a weekly basis, for an approximate total of 312-416 such requests
yearly. Out of those requests, SBA declines only 1-2 per week, for an
approximate total of 52-100 denials yearly. Based on these estimates,
in the last five years, SBA has declined about 19% of rule exception
requests, while approving approximately 81% of such requests. This data
confirms the agency's belief that determining whether an expense has
been incurred by an applicant for a 504 project requires a fact
specific analysis which appropriate agency personnel need to make
regardless of when the expense was incurred. As it relates to loan
processing, the agency will continue to review any expense that was
incurred prior to the date of application to ensure that it is
``directly attributable'' to the project. Based on SBA's experience in
the application of the 9-month rule and having, for the most part,
approved requests from applicants that SBA make an exception to this
policy, the agency believes that the 9-month restriction can and should
be eliminated from the regulations.
D. CDC Operational and Organizational Requirements
SBA also proposes to revise regulations dealing with corporate
governance including eliminating the requirement for CDC membership and
emphasizing the responsibility of the board of directors. A detailed
discussion of these proposed changes can be found in the section-by-
section analysis below.
E. Other Changes
The proposed rule would make other technical corrections and
changes resulting in simplification of some regulations for both the
504 Loan Program and the 7(a) Loan Program, and a discussion of these
proposed changes can be found in the section-by-section analysis.
[[Page 12639]]
II. Section-by-Section Analysis
Section 120.102 Funds not available from alternative sources,
including personal resources of principals. SBA proposes to remove this
regulation regarding the availability of personal assets of the
principals of the Borrower. For the reasons described above under
Background Information, SBA has determined that in order to better
serve the small business community and economic development, the
regulation should be removed for both the 504 Loan Program and the 7(a)
Loan Program.
Section 120.816 CDC nonprofit status and good standing. SBA
proposes to redesignate the current Sec. 120.820 as a new Sec.
120.816. The content would remain unchanged.
Section 120.818 Applicability to existing For-Profit CDCs. SBA
proposes to add this new section to clarify that, unless expressly
provided otherwise in the regulations, any Loan Program Requirement
that applies to non-profit CDCs also applies to for-profit CDCs. This
proposed change reflects current SBA practice.
Section 120.820 CDC Affiliation. SBA proposes to substitute the
current Sec. 120.820 with a new Sec. 120.820 that sets forth
requirements regarding CDC affiliations. In paragraph (a), SBA proposes
to require that a CDC be independent and not be affiliated with any
Person (as defined in Sec. 120.10) except as permitted under this
section. In paragraph (b), SBA proposes to permit CDCs to be affiliated
with non-profit economic development entities or State and local
government political subdivisions (e.g., councils of government). In
paragraph (c), SBA proposes to permit a CDC to continue to be
affiliated with a 7(a) Lender if: (1) the affiliation was in effect as
of the effective date of this regulation; and (2) the 7(a) Lender is
either a state development company approved by SBA as of November 6,
2003, or a credit union. This proposed change will permit the
continuation of existing relationships between CDCs and 7(a) Lenders
that are credit unions or state development companies, but does not
permit the creation of such relationships going forward. In paragraph
(d), consistent with current policy, SBA proposes adding a provision
prohibiting one CDC from affiliating with or investing in or financing,
directly or indirectly, another CDC.
Section 120.822 Membership. Currently, this section requires CDCs
to have at least 25 members or stockholders, and also sets forth
membership group requirements. SBA proposes to eliminate the
requirement that a CDC have membership. Now that CDCs currently have
authority to loan in a statewide (or multistate) area, the local
membership board does not have the same impact as when CDCs represented
a smaller service area. Maintaining both membership and a Board of
Directors places an unnecessary burden on CDCs. Lessening this burden
may encourage more entities to become CDCs, resulting in an expansion
of the program and loans to small businesses. A CDC may continue to
have membership but it is no longer an SBA requirement. Instead, SBA is
emphasizing the responsibilities and duties of the CDC Board of
Directors in the following section. Accordingly, SBA is proposing to
remove Sec. 120.822 from the regulations.
Section 120.823 CDC Board of Directors. In paragraph (a), SBA
proposes to revise the regulations to emphasize the authority and the
responsibilities of the CDC Board of Directors. The proposed regulation
provides that the initial board may be created as permitted by state
law. It also outlines proposed requirements for the directors'
backgrounds and areas of expertise. SBA proposes adding a requirement
that the Board size shall be not less than 11 voting directors and not
more than 25. SBA recommends that CDCs have an odd number of Directors
to avoid tie votes, which is consistent with best practices of Boards
generally. SBA has based this revision upon an extensive review of the
average size of non-profit boards, not limited to CDCs, which typically
ranges from 7-15 Board members. Based upon the mission and
responsibilities of CDCs and the average size for both for-profit and
non-profit CDCs in the 504 Loan Program, however, SBA is proposing a
range of 11-25 Board members. While SBA supports limiting the number of
directors on the Board for efficiency of operations, the agency also
understands that an important function of the Board is to provide
representation for the communities served by the CDC. Having an upper
limit of 25 directors for the CDC Board would provide CDCs with the
opportunity to convert existing membership (currently set at a minimum
of 25) to directors if they choose to do so. To increase community
representation, the CDC would still have the option to have a
membership to which the CDC may admit as many members as it deems
appropriate.
The Agency lists several proposed areas of expertise that it
believes are essential to the successful operation of the CDC Board.
SBA proposes to require that a CDC have, at a minimum, one director
that is a representative from the economic, community or workforce
development field and two directors that are representatives from the
commercial lending field. This proposed change is intended to expand
the pool of potential directors and to encourage more diversity and
expertise on the Board. Retired individuals may represent the fields
from which they retired, as the Agency recognizes the value of their
knowledge and experience.
Paragraph (b) regarding commercial lending experience is language
from the existing regulation except that SBA proposes to increase the
minimum number of voting directors on the Board with commercial lending
experience from one to two. Further, at least two directors with
commercial lending experience must be present and vote when the Board
is acting on SBA approvals or servicing actions. SBA believes that this
requirement is prudent now that the maximum loan amount has been
increased to $5,000,000 and, in some cases, $5,500,000.
Paragraph (c) outlines the proposed minimum requirements for Board
meetings and explicitly establishes the Board's responsibilities for
the actions of the CDC, its staff, and any committees established by
the Board of Directors. The requirement in subparagraph (c)(1) does not
reflect any changes to the current regulations. To ensure effective
operation and oversight of the CDC by the Board, and to encourage
maximum involvement by each Director, the Agency proposes requiring
that a quorum of not less than 50% of the Board be present to conduct
all business. Non-voting directors will not be included for the
purposes of establishing a quorum. SBA is aware that some CDCs were
requiring that a quorum be present only to begin a meeting; this
practice would not comply with the proposed rule. In subparagraph
(c)(3), SBA proposes that meetings may be held in any manner permitted
by state law, recognizing that there are methods for meeting other than
being physically present. Paragraph (c)(4) proposes to maximize
diversity on the Board by limiting representation by commercial lenders
to less than 50% of the Board of Directors. Paragraph (c)(5) proposes
to limit the ability of an outside entity (including affiliates of that
entity) to control the Board by restricting the entity's representation
on the CDC Board to one member.
In paragraph (d), SBA proposes to require that the Board be
responsible for ensuring that the structure and operation of the CDC,
as set forth in the Bylaws, comply with SBA's Loan Program
Requirements. In
[[Page 12640]]
subparagraphs (d)(1) and (2), SBA proposes to require that the Board be
responsible for setting the mission and hiring, firing, supervising and
evaluating the CDC manager. To emphasize the fiscal responsibility of
the Board as it relates to salaries, subparagraph (d)(3) explicitly
outlines the duties of the Board to set salaries for the CDC manager
and to review all other salaries to provide greater transparency and
accountability. SBA requires that a Report on Compensation be included
in the Annual Report (see proposed Sec. 120.830). SBA also proposes in
subparagraph (d)(4) to provide the CDC with flexibility in determining
whether to have committees, but addresses the requirements for
Executive and Loan Committees, if established. Emphasis has been placed
on the Board of Directors in this proposed rule. If a Board chooses to
have an Executive Committee, then its members must be chosen from the
Board as the Agency does not want this authority to be delegated to
individuals who are not members of the Board. The Executive Committee
must be chosen by and from the Board and meet the same requirements as
the Board with the exception that the Executive Committee would be
required to have no fewer than 5 voting members, and there must be a
quorum of at least 5 voting members to conduct business. The proposed
regulations also permit the Board to establish a Loan Committee and
outline the requirements as to committee membership selection and
background. As is provided in the current rule regarding the Loan
Committee, no CDC staff may serve on the Loan Committee. Further, the
regulation as proposed defines a quorum as five voting Loan Committee
members. Subparagraph (d)(4)(ii)(D) additionally proposes that there be
no actual or appearance of a conflict of interest. For example, a
member of the Loan Committee must not participate in deliberations on a
loan for which the Third Party Lender is the Committee member's
employer.
Subparagraph (d)(5), as proposed, requires the Board to ensure that
the CDC's expenses are reasonable and customary, and proposed
subparagraph (d)(6) requires the Board to hire an independent auditor
to ensure compliance with Loan Program Requirements.
The proposed provisions in subparagraphs (d)(7) and (8) emphasize
the requirement that the Board monitor the portfolio and review the
semiannual status report from the CDC to ensure that the Board provides
appropriate oversight of the CDC's portfolio. SBA proposes to add
requirements in subparagraph (d)(9) that the Board ensure that the CDC
establishes and maintains adequate reserves to enable the CDC to
operate.
As provided in current Sec. 120.825, a CDC must invest in its Area
of Operations. Subparagraph (d)(10) of Sec. 120.823 proposes to
require that the Board approve all investments of over $2,500 and that
the CDC manager approve investments of $2,500 or less in order to
ensure that the investments constitute appropriate economic development
activity and that such investments do not compromise the adequacy of
the reserves. Examples of economic development activities could include
non-profit activities such as workforce development programs, lending
programs or other like activities in the CDC's Area of Operations.
The Agency proposes to require in subparagraph (d)(11) that the
Board establish a policy in the Bylaws of the CDC prohibiting an actual
or apparent conflict of interest, and enforce such policy. The agency
would expect that the policy would provide, among other things, that no
director may participate in deliberations on a loan if the director is
employed by or is otherwise associated with the Third Party Lender.
Subparagraphs (d)(12) and (d)(13), as proposed, express the Board's
retention of accountability for all actions of the CDC, and establishes
the responsibility for establishing written internal control polices as
set forth in Sec. 120.826. SBA proposes to add subparagraph (d)(14)
requiring the CDC's Board of Directors to establish commercially
reasonable loan approval policies, procedures, and standards. The CDC's
credit approval process and delegations of authority, if any, must be
set forth in the Bylaws. In addition, the loan must be credit-approved
before the application is submitted to SBA. The proposed rule would
require that the Board of Directors, or the Executive Committee, if
authorized by the Board, provide credit approval for loans greater than
$2,000,000 prior to submission to the agency, as SBA believes that it
is important that the Board, or Executive Committee, approve these
larger loans. However, SBA recognizes that Boards may not meet
frequently enough to provide the needed credit approval in a timely
manner prior to submission of an application to SBA and that allowing
approval of smaller loans by the Loan Committee would present minimal
additional risk to the Agency. Therefore, SBA is proposing to allow
Boards to delegate authority to the Loan Committee to provide credit
approval of: (1) loans of less than $1 million, and (2) loans of $1
million to $2 million subject to ratification by the Board or the
Executive Committee prior to debenture closing. SBA invites comment on
this proposal. To further emphasize the responsibilities of the Board,
in subparagraph (d)(15), SBA proposes an annual certification by all
Board members acknowledging their responsibilities.
In paragraph (e), SBA proposes to add the requirement that the
Board must maintain directors' and officers' liability and errors and
omissions insurance to protect the CDC. The Agency requires at least
$5,500,000 for each occurrence and $5,500,000 in the aggregate per
year, as well as a deductible of not more than $50,000 for both
directors' and officers' liability insurance and errors and omissions
insurance. These coverage amounts correspond to the maximum loan
amount. SBA invites comment on the amounts of both the insurance and
the deductible.
Section 120.830 Reports a CDC must submit. SBA proposes to revise
the requirements for reporting by CDCs in order to improve transparency
and accountability and for other purposes discussed in this paragraph.
In paragraph (a), SBA proposes adding a requirement that copies of
Federal tax returns be submitted in the Annual Report to assist the
Agency in reducing risk by reviewing the financial condition of the CDC
and compensation of CDC employees. The requirements for the audited or
reviewed financial statements are set forth in subparagraph (a)(1) and
remain unchanged. In addition, as a matter of practice, SBA does not
require a CDC to submit an Annual Report for the year in which it was
certified if the CDC is certified by SBA within 6 months of its fiscal
year-end, and SBA proposes to reflect this practice in the regulations.
In subparagraph (a)(2), SBA proposes to add a requirement for an annual
compensation report covering all current and former officers and
directors receiving compensation during the covered period, and any
current and former employees and independent contractors with total
compensation of more than $100,000 during the covered period. For this
purpose, total compensation includes all compensation, including
salary, bonuses and expenses. Additionally, in subparagraph (a)(3), the
Agency proposes to require that the annual report include an annual
certification by each of the directors that he or she has read and
understands the requirements set forth in the proposed Sec. 120.823.
In subparagraph (a)(4), SBA is proposing to require that the CDC report
on investments in economic development
[[Page 12641]]
activities in each State in which the CDC has an outstanding 504 loan.
With the exception of the revisions noted above, the reporting
requirements for CDCs remain the same.
Section 120.835 Application to expand an Area of Operations. SBA
proposes to incorporate subparagraph (c)(1) into paragraph (c) and
remove subparagraph (c)(2), which currently requires the CDC to meet
the requirements as to membership for each state in a Multi-state
expansion, since the proposed revisions to Sec. 120.822 make
membership optional.
Section 120.882 Eligible Project costs for 504 loans. SBA proposes
to eliminate paragraph (a)(2) of Sec. 120.882, which limits Project
expenses eligible for 504 Loan Program financing to those incurred
within 9 months prior to receipt by SBA of a complete loan application.
(The cost of acquiring land to be used in the Project is not subject to
the 9-month restriction.)
For the reasons described above under Background Information, SBA's
proposal would permit prior expenses that are directly attributable to
the 504 project to be considered eligible project costs regardless of
when those expenditures were made. If financing was required for the
costs incurred, SBA would determine whether the 504 loan should be made
under Sec. 120.882(e) as a 504 project that includes a refinancing
component or under Sec. 120.882(a) because the costs are directly
attributable to the project.
Section 120.920 Required participation by the Third Party Lender.
SBA proposes revising this section to provide that if a Third Party
Lender requires collateral in addition to that which the CDC takes, the
Third Party Lender, in the event of liquidation, must first apply the
proceeds from the sale of the additional collateral to the balance of
the Third Party Lender's loan. This marshaling of assets would protect
the CDC's position in the Common Collateral (as defined in the proposed
revision to this section) and could lead to greater recovery for SBA
Section 120.925 504 Preferences. SBA proposes removing this
section, and addressing the concern with respect to the application of
the proceeds from additional collateral held by the Third Party Lender
in Sec. 120.920 as described above.
Section 121.103 How does SBA determine affiliation? SBA proposes to
amend this section to provide that affiliation for 7(a), 504 and
microloan loan applicants would be determined under a new Sec.
121.302, as described below, and not under Sec. 121.103.
Section 121.302 What are the standards for determining affiliation
for loan applicants?
SBA proposes to redefine ``affiliation'' for the purpose of the
business loan programs. Proposed paragraph (a) of Sec. 121.302
contains a statement of general principles of affiliation for business
loan applicants and incorporates the exceptions to affiliation set
forth in Sec. 121.103(b). Proposed paragraph (b) sets forth the
affiliation principles based on ownership. Proposed paragraph (c)
describes the effect on affiliation of stock options, convertible
securities, and agreements to merge. Proposed paragraph (d) outlines
affiliation based upon common management. Proposed paragraph (e)
incorporates Sec. 121.103(i) regarding affiliation based on franchise
and license agreements. Proposed paragraph (f) requires that each
applicant for a 7(a) loan or a 504 loan submit with its application an
Affidavit in which discloses all owners of the applicant and the
percentage of ownership of each, and any affiliates as determined under
this section.
The existing Sec. Sec. 120.302 through 120.305 are proposed to be
redesignated as Sec. Sec. 120.303 through 120.306, respectively,
without any further changes.
Compliance With Executive Orders 13563, 12866, 12988, and 13132, the
Paperwork Reduction Act (44 U.S.C., Ch. 35,), and the Regulatory
Flexibility Act (5 U.S.C. 601-612)
Executive Order 13563 and Executive Order 12866
The Office of Management and Budget (OMB) has determined that this
proposed rule is a ``significant'' regulatory action for the purposes
of Executive Order 12866. Accordingly, the next section contains SBA's
Regulatory Impact Analysis. However, this is not a major rule under the
Congressional Review Act, 5 U.S.C. 800.
Regulatory Impact Analysis
1. Is there a need for this regulatory action?
The agency believes it needs to reduce regulatory burdens and
expand business loan program access to reinvigorate the programs and
facilitate job creation.
2. What are the potential benefits and costs of this regulatory
action?
As stated above, the potential benefits of this proposed rule are
based on its elimination of unnecessary participation burdens and
eligibility criteria. Specifically, the proposed rule would eliminate
certain eligibility criteria related to the personal resources of
certain people or companies associated with the applicant. It would
also exempt the business loan program from certain rules that determine
whether an entity is deemed affiliated with an applicant. When an
entity is determined to be affiliated with an applicant, then that
entity's receipts and employees are added to those of the applicant
when determining its size. Thus, certain businesses are deemed to be
ineligible for assistance because they are not deemed to be ``small''
for program purposes by virtue of their combined size with affiliated
entities. By eliminating unnecessary affiliation tests from the
business loan programs, independently owned and controlled small
businesses that would otherwise be ineligible for business loan program
assistance will become eligible. In addition, the excessive burden
related to providing documentation for size evaluation for numerous
affiliates now faced by lenders and borrowers would be significantly
reduced by the proposed rule.
In the 504 Loan Program, SBA is proposing to eliminate what is
commonly referred to as the ``9-month rule''. The 9-month rule
essentially states that costs incurred by an applicant that otherwise
would be eligible for financing under the 504 Loan Program are
presumptively deemed to be ineligible project costs if incurred more
than 9 months prior to a complete loan application submitted by an
applicant. Also pertaining only to the 504 Loan Program, the proposed
rule would revise regulations dealing with corporate governance
including eliminating the requirement for CDC membership and
emphasizing the responsibility of the board of directors. CDCs
participating in the 504 Loan Program would no longer need to maintain
a membership, thus eliminating that program participation burden.
Requirements for the CDC Board of Directors are clarified and detailed
to compensate for the potential loss of oversight that might result
from the lack of CDC membership participation. SBA could have allowed
CDC Directors to operate without clearly articulated basic standards
that are commonly accepted best practices that most CDCs already
follow. SBA welcomes comments and suggestions on the benefit of
allowing CDC Boards to operate without the basic governance standards
and oversight proposed in this rule.
With respect to CDC Board requirements, the agency proposes to
establish a minimum quorum of 50% of the Board and to require that the
Board set the CDC manager's salary and review
[[Page 12642]]
all CDC staff salaries. There are additional operational requirements
which are discussed more fully in the section-by-section analysis of
this proposed rule. It is the agency's view that these rules basically
would codify best practices for CDC Board operation and would not
significantly add to the burden of being a responsible CDC director.
The agency encourages public comment on the Board requirements,
especially with respect to any possible significant economic impact, as
well as suggestions regarding how to ensure proper Board operations in
a less burdensome way.
Finally, there are miscellaneous proposed revisions which clarify
or slightly revise exiting regulations with very minor regulatory
impact. For example, consistent with current policy, Sec. 120.818
clarifies that CDC requirements apply to for-profit CDCs. Another
example is Sec. 120.830, which the agency believes would allow several
CDCs to maintain existing affiliations and still qualify for expanded
CDC status without impacting the operational requirements of other
CDCs. With respect to any of the proposed revisions relating to CDC
operational and organizational requirements, the agency welcomes any
comments regarding potentially significant impact on CDC operations and
views regarding how the agency can responsibly reduce CDC operational
and organizational compliance burdens.
3. What alternatives have been considered?
One ``alternative'' would be to eliminate even more regulatory
burdens and the agency enthusiastically encourages public comment and
suggestions on how that can be done responsibly without substantially
increasing the risk of waste, fraud, or abuse of the programs or
otherwise threatening the integrity of the business loan program or
taxpayer dollars. With respect to the proposed changes to CDC Board of
Director requirements, the agency considered allowing CDC directors to
operate with virtually no agency oversight or standards, relying on
state non-profit corporation laws and state oversight to ensure proper
Board performance. This idea was quickly rejected because SBA's review
of actual state oversight of non-profit directors and the applicable
state law requirements indicated that state oversight and laws would
not provide the parameters and oversight necessary for a Federal loan
program that potentially puts billions of taxpayer dollars at risk each
year.
Executive Order 13563
A description of the need for this regulatory action and benefits
and costs associated with this action, including possible
distributional impacts that relate to Executive Order 13563, are
included above in the Regulatory Impact Analysis under Executive Order
12866.
The business loan programs operate through the agency's lending
partners, which are 7(a) Lenders and CDCs. The agency has held public
forums and meetings which allowed it to reach hundreds of its lending
partners and gain valuable insight, guidance, and suggestions from many
of them and the trade associations which represent many of them. The
agency's outreach efforts to engage stakeholders before proposing this
rule was extensive.
Executive Order 12988
This action meets applicable standards set forth in Sections 3(a)
and 3(b) (2) of Executive Order 12988, Civil Justice Reform, to
minimize litigation, eliminates ambiguity, and reduce burden. The
action does not have retroactive or preemptive effect.
Executive Order 13132
SBA has determined that this proposed rule will not have
substantial, direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government. Therefore,
for the purposes of Executive Order 13132, SBA has determined that this
proposed rule has no federalism implications warranting preparation of
a federalism assessment.
Paperwork Reduction Act, 44 U.S.C., Ch. 35
The SBA has determined that this proposed rule would impose
additional reporting and recordkeeping requirements under the Paperwork
Reduction Act (PRA), 44 U.S.C. Chapter 35. First, SBA proposes to amend
the currently approved CDC Annual Report to require CDCs to report on
executive compensation and economic development projects, and to submit
a copy of the CDC's tax return. Under the proposed rule, each CDC
director must certify that he or she has read and understands the
requirements set forth in 13 CFR 120.823.
Second, SBA proposes to require each loan applicant to certify in
an Affidavit (the ``Applicant Affidavit on Affiliation'') as to the
applicant's affiliation with any other entities. Requiring submission
of this Affidavit would significantly reduce the burden on the small
businesses and the CDCs as the small businesses applying for a 504 or
7(a) loan would be required to submit certain documentary evidence
(e.g., credit reports, financial statements and tax returns) only with
respect to their affiliates as defined in the proposed rule. In
addition, applicants would be required to identify all owners of the
applicant as opposed to each owner of 20% or more interest as is now
required only on Form 4, Application for Business Loan.
As a result of these new requirements, SBA proposes to revise the
information collections identified below:
1. Title and Description of Information Collection: The Certified
Development Company (CDC) Annual Report (SBA Form 1253) is the method
through which the CDC provides information to SBA on economic
development, its financial condition, operations and employment impact.
The additional information that would be required to be submitted with
the Annual Report is a certification by each CDC director, a report on
compensation, and a copy of the CDC's federal tax return. This
information collection will also be revised to reflect changes in
governance of CDC membership; composition of CDC board of directors and
increases to insurance coverage.
OMB Control Number: 3245-0074.
Description of and Estimated Number of Respondents: All CDCs must
provide an annual report. Currently there are approximately 260 CDCs.
There is 1 form per respondent. SBA has prepared an estimate based on
the fact that respondents keep the information requested in the
ordinary course of business (all the loan information including jobs
created and retained.).
Estimated Number of Responses: 260 (260 CDCs x 1 form per
respondent = 260).
Estimated Time per Response: SBA estimates the time needed to
complete this collection will average 28 hours.
Total Estimated Hour Burden: 260 x 28 hours = 7,280 total annual
burden hours. This is 168 hours less than the current OMB inventory
(7,488).
2. Title and Description of Information Collection: Applicant
Affidavit on Affiliation as to applicant's affiliation with any other
entities. This new information collection, as described above, will be
submitted with the following applications:
(i) Application for Section 504 Loan (SBA Form 1244).
OMB Control Number: 3245-0071
Description of and Estimated Number of Respondents: The Applicant
would execute this Affidavit which would be part of exhibit 12 to SBA
Form 1244.
[[Page 12643]]
Based upon FY 2011 loan totals, SBA estimates that 6,800 respondents
will complete the Affidavit annually (4,625 ASM submission + 2,75
standard submissions = 6,800).
Estimated Number of Responses: 6,800 based upon the FY 2011 loan
totals.
Estimated Time per Response: SBA estimates that each applicant
would require 15 minutes to complete the new proposed form, thereby
decreasing the total estimated burden for this collection, which
depending on the Lenders status, is currently 2.25 hours or 2.45 hours
per application.
Total Estimated Burden: 15,736 hours, which is identical to current
OMB inventory.
(ii) Application for Business Loan (SBA Form 4-I and 4 Schedule A).
OMB Control Number: 3245-0016.
Description of and Estimated Number of Respondents: 17,300
Applicants for 7(a) loans based upon FY 2011 totals.
Estimated Number of Responses: 32,130 based upon the FY 2011
totals.
Estimated Time per Response: SBA estimates that each applicant
would require 15 minutes to complete the new proposed form, which would
result in a corresponding reduction in the current burden for this
collection.
Total Estimated Burden: 206,340 hours (8.625 hours less than
current OMB inventory).
(iii) SBA Express, Export, Express, Small Loan Advantage, PLP-
CapLines, and Pilot Loan Programs (Patriot Express and Dealer Floor
Plan) Borrower Information Form (SBA Form 1919, 1920SX (A, B & C) and
2237).
OMB Control Number: 3245-0348.
Description of and Estimated Number of Respondents: 4,450
Applicants for SBA Express, Export Express, Small Loan Advantage, PLP-
Caplines and Pilot Loan Programs based upon FY 2011 totals.
Estimated Number of Responses: 117.900.
Estimated Time per Response: 12 minutes.
Total Estimated Burden: 22,620 hours (36,236 hours less than
current OMB inventory).
(iv) Lender Advantage (SBA Form 2301-A, B & C).
OMB Control Number: 3245-0361.
Description of and Estimated Number of Respondents: 15,900
Applicants for SBA's Lender Advantage Loan Initiative Program based
upon a projection of program activity during FY 2013.
Estimated Number of Responses: 15,900 respondents based upon a
projection of program activity during FY 2013.
Estimated Time per Response: SBA estimates that each applicant
would require 30 minutes to complete the new proposed form, which would
result in a reduction in the current burden hours for this collection.
Total Estimated Burden: 46,095 hours (2,895 hours less than current
OMB inventory).
(v) PCLP Quarterly Loan Reserve Report and PCLP Guarantee Request
(SBA Forms 2233 and 2234-A, B & C).
OMB Control Number: 3245-0346.
Description of and Estimated Number of Respondents: 19 PCLP
Lenders.
Estimated Number of Responses: 1,700 respondents based on an
estimate of the loan volume.
Estimated Time per Response: SBA estimates that each applicant
would require 50 minutes to complete the new proposed form, which would
result in a reduction in the current burden hours for this collection.
Total Estimated Burden: 1,402 hours less than current OMB
inventory.
SBA has submitted these amended collections to the Office of
Management and Budget (OMB) for review, and invites the public to
comment on the proposed changes, particularly on: (1) Whether the
proposed collection of information is necessary for the proper
performance of the program, including whether the information will have
a practical utility; (2) the accuracy of SBA's estimate of the burden
of the proposed collections of information; (3) ways to enhance the
quality, utility, and clarity of the information to be collected; and
(4) ways to minimize the burden of the collection of information on
respondents, including through the use of automated collection
techniques, when appropriate, and other forms of information
technology. Please send comments by the closing date for comment for
this interim final rule to SBA Desk Officer, Office of Management and
Budget, Office of Information and Regulatory Affairs, 725 17th Street
NW., Washington, DC 20503, and to Linda Reilly, Chief, 504 Program
Branch, Office of Financial Assistance, Small Business Administration,
409 Third Street SW., Washington, DC 20416.
Regulatory Flexibility Act, 5 U.S.C. 601-612
When an agency issues a rulemaking proposal, the Regulatory
Flexibility Act (RFA), 5 U.S.C. 601-612, requires the agency to
``prepare and make available for public comment an initial regulatory
analysis'' which will ``describe the impact of the proposed rule on
small entities.'' Section 605 of the RFA allows an agency to certify a
rule, in lieu of preparing an analysis, if the proposed rulemaking is
not expected to have a significant economic impact on a substantial
number of small entities. Although the rulemaking will impact all of
the approximately 4,500 7(a) Lenders (some of which are small) and all
of the approximately 260 CDCs (all of which are small), SBA does not
believe the impact will be significant. As stated above, the proposed
rule will expand access to the business loan program but this will not
increase the burden of the agency's lending partners because they
choose their own level of program participation (i.e., 7(a) Lenders and
CDCs are not required to process more loan applications simply because
more small businesses are eligible to apply for a business loan). For
those CDCs and lenders that process more businesses loans, the benefit
of the increase in revenue will far exceed any increased burden. In
addition, the proposed elimination of certain program participation
requirements would not have a substantial economic impact or cost on
the small business borrower, lender or CDC.
SBA believes that this rule is SBA's best available means for
facilitating American job preservation and creation by removing
unnecessary regulatory requirements. Since the main purpose of this
proposed rule is to reduce unnecessary regulatory burdens and program
eligibility criteria, a review of the preamble sections above will
provide more detailed explanations regarding how and why this proposed
rule will reduce regulatory burdens and responsibly increase program
participation flexibility. For these reasons, SBA has determined that
there is no significant impact on a substantial number of small
entities. SBA invites comment from members of the public who believe
there will be a significant impact either on CDCs, or their borrowers.
List of Subjects
13 CFR Part 120
Community development, Equal employment opportunity, Loan
programs--business, Reporting and recordkeeping requirements, Small
business.
13 CFR Part 121
Grant programs-business, Individuals with disabilities, Loan-
programs-business, Reporting and recordkeeping requirements, Small
businesses.
For the reasons stated in the preamble, SBA proposes to amend 13
CFR parts 120 and 121 as follows:
PART 120--BUSINESS LOANS
0
1. The authority for 13 CFR part 120 continues to read as follows:
[[Page 12644]]
Authority: 15 U.S.C. 634(b)(6), (b)(7), (b)(14), (h) and note,
636(a), (h) and (m), 650, 687(f), 696(3) and 697(a) and (e); Pub. L.
111-240, 124 Stat. 2504.
Sec. 120.102 [Removed]
0
2. Remove Sec. 120.102.
Sec. 120.820 [Redesignated as Sec. 120.816]
0
3. Redesignate Sec. 120.820 as Sec. 120.816.
0
4. Add Sec. 120.818 to read as follows:
Sec. 120.818 Applicability to existing for-profit CDCs.
Unless expressly provided otherwise in the regulations, any Loan
Program Requirement that applies to non-profit CDCs also applies to
for-profit CDCs.
0
5. Revise newly redesignated Sec. 120.820 to read as follows:
Sec. 120.820 CDC Affiliation.
(a) A CDC must be independent and may not be affiliated (as
determined in accordance with Sec. 121.103) with any Person (as
defined in Sec. 120.10) except as permitted under this section.
(b) A CDC may be affiliated with an entity whose function is
economic development in the same Area of Operations and that is either
a non-profit entity or a State or local government or political
subdivision (e.g., council of governments).
(c) A CDC that is affiliated with a 7(a) Lender may continue such
affiliation if:
(1) The affiliation was in effect as of [EFFECTIVE DATE OF FINAL
RULE], and
(2) The 7(a) Lender is either a state development company approved
by SBA as of November 6, 2003, or a credit union.
(d) A CDC must not be affiliated with, or directly or indirectly
invest in or finance, another CDC.
Sec. 120.822 [Removed]
0
6. Remove Sec. 120.822.
0
7. Revise Sec. 120.823 to read as follows:
Sec. 120.823 CDC Board of Directors.
(a) The CDC, whether for-profit or nonprofit, must have a Board of
Directors with at least eleven (11), and no more than twenty-five (25),
voting directors. The Board must be actively involved in encouraging
economic development in the Area of Operations. The initial Board may
be created by any method permitted by applicable State law. At a
minimum, the Board must have directors with background and expertise in
internal controls, financial risk management, commercial lending, legal
issues relating to commercial lending, and corporate governance.
Directors may be either currently employed or retired. A CDC must have
at least one voting director that represents the economic, community or
workforce development fields, and at least two voting directors that
represent the commercial lending field.
(b) At least two voting members of the Board of Directors, other
than the CDC manager, must possess commercial lending experience
satisfactory to SBA. When the Board votes on SBA loan approval or
servicing actions, at least two voting Board members, with such
commercial lending experience, other than the CDC manager, must be
present and vote.
(c) The Board of Directors must meet at least quarterly and shall
be responsible for the actions of the CDC and any committees
established by the Board of Directors. In addition, the Board of
Directors is subject to the following requirements:
(1) Except for the CDC manager, no person on the CDC's staff may be
a voting director of the Board;
(2) A quorum must be present to transact business. The quorum shall
be set by the CDC but shall be no less than 50% of the voting members
of the Board of Directors;
(3) Attendance at meetings may be through any format permitted by
State law;
(4) Directors from the commercial lending fields must comprise less
than 50% of the representation on the Board; and
(5) A CDC shall not permit more than one individual who is employed
by or serves on the Board of Directors of a single entity (including
the entity's affiliates) to serve on the CDC's Board of Directors.
(d) The Board shall have and exercise all corporate powers and
authority and be responsible for all corporate actions and business.
There must be no actual or appearance of a conflict of interest with
respect to any actions of the Board. The Board is responsible for
ensuring that the structure and operation of the CDC, as set forth in
the Bylaws, comply with SBA's Loan Program Requirements. The
responsibilities of the Board include, but are not limited, to the
following:
(1) Approving the mission and the policies for the CDC;
(2) Hiring, firing, supervising and annually evaluating the CDC
manager;
(3) Setting the salary for the CDC manager and reviewing all
salaries;
(4) Establishing committees, at its discretion, including the
following:
(i) Executive Committee. To the extent authorized in the bylaws,
the Board of Directors may establish an Executive Committee. The
Executive Committee may exercise the authority of the Board; however,
the delegation of its authority does not relieve the Board of its
responsibility imposed by law or Loan Program Requirements. No further
delegation or redelegation of this authority is permitted. If the Board
establishes an Executive Committee and delegates any of its authority
to the Executive Committee as set forth in the bylaws of the CDC, the
Executive Committee must:
(A) Be chosen by and from the Board of Directors from the Board;
and
(B) Meet the same organizational and representational requirements
as the Board of Directors, except that the Executive Committee must
have a minimum of five voting members who must be present to conduct
business.
(ii) Loan Committee. The Board of Directors may establish a Loan
Committee. The Loan Committee may exercise the authority of the Board
only as set forth in paragraphs (d)(4)(ii)(A) through (D) of this
section; however, the delegation of its authority does not relieve the
Board of its responsibility imposed by law or Loan Program
Requirements. If the Board of Directors chooses to establish a Loan
Committee, no CDC staff or manager may serve on the Loan Committee. The
Loan Committee must:
(A) Be chosen by the Board of Directors from the membership (if
any), shareholders or the Board;
(B) Have a quorum of at least five (5) committee members authorized
to vote;
(C) Have at least two members with commercial lending experience
satisfactory to SBA; and
(D) Have no actual or appearance of a conflict of interest,
including for example, a Loan Committee member participating in
deliberations on a loan for which the Third Party Lender is the
member's employer or the member is otherwise associated with the Third
Party Lender.
(5) Ensuring that the CDC's expenses are reasonable and customary;
(6) Hiring directly an independent auditor to provide the financial
statements in accordance with Loan Program Requirements;
(7) Monitoring the CDC's portfolio performance on a regular basis;
(8) Reviewing a semiannual report on portfolio performance from the
CDC manager, which would include, but not be limited to, asset quality
and industry concentration;
(9) Ensuring that the CDC establishes and maintains adequate
reserves for operations;
(10) Ensuring that the CDC invests in economic development in each
of the States in its Area of Operations in which it has a portfolio;
and:
[[Page 12645]]
(i) For investments of $2,500 or less: The CDC manager may approve
such investments; and
(ii) For investments over $2,500: The Board must approve each such
investment.
(11) Establishing a policy in the Bylaws of the CDC prohibiting an
actual conflict of interest or the appearance of same, and enforcing
such policy;
(12) Retaining accountability for all of the actions of the CDC;
(13) Establishing written internal control polices, in accordance
with Sec. 120.826;
(14) Establishing commercially reasonable loan approval policies,
procedures, and standards. The Bylaws must include a credit approval
process and set forth any delegations of authority to the Loan
Committee and Executive Committee, if either Committee has been
established. All 504 loan applications must have credit approval prior
to submission to the Agency. The Loan Committee, if established, may be
delegated the authority to provide credit approval for loans up to
$2,000,000 but, for loans of $1,000,000 to $2,000,000, the Loan
Committee's action must be ratified by the Board or Executive Committee
prior to Debenture closing. Only the Board or Executive Committee, if
authorized by the Board, may provide credit approval for loans greater
than $2,000,000.
(15) All members of the Board of Directors must annually certify in
writing that they have read and understood this section, and copies of
the certification must be included in the Annual Report to SBA.
(e) The Board of Directors shall maintain Directors' and Officers'
Liability and Errors and Omissions insurance in an amount of at least
$5,500,000 per occurrence and in the aggregate per year with a
deductible of not more than $50,000.
0
8. Amend Sec. 120.830 by revising paragraph (a) to read as follows:
Sec. 120.830 Reports a CDC must submit.
* * * * *
(a) An Annual Report within one hundred-eighty days after the end
of the CDC's fiscal year (to include Federal tax returns for that
year). A CDC that is certified by SBA within 6 months of the CDC's
fiscal year-end is not required to submit an Annual Report for that
year. The Annual Report must include, but is not limited to, the
following:
(1) Audited or Reviewed Financial Statements as required in Sec.
120.826(c) and (d) for the CDC and any affiliates or subsidiaries of
the CDC.
(i) Audited financial statements must, at a minimum, include the
following:
(A) Audited balance sheet;
(B) Audited statement of income (or receipts) and expenses;
(C) Audited statement of source and application of funds;
(D) Such footnotes as are necessary to understand the financial
statements;
(E) Auditor's letter to management on internal control weaknesses;
and
(F) The auditor's report.
(ii) Reviewed financial statements must, at a minimum, include the
following:
(A) Balance sheet;
(B) Statement of income (or receipts) and expenses;
(C) Statement of source and application of funds;
(D) Such footnotes as are necessary to an understanding of the
financial statements; and
(E) The accountant's review report.
(2) Report on compensation. CDCs are required to provide detailed
information on total compensation (including salary, bonuses and
expenses) paid within the CDC's most recent tax year for current and
former officers and directors, and for current and former employees and
independent contractors with total compensation of more than $100,000
during that period.
(3) Certification of members of the Board of Directors. Written
annual certification by each Board member that he or she has read and
understands the requirements set forth in Sec. 120.823.
(4) Report on investment in economic development. Written report on
investments in economic development in each State in which the CDC has
an outstanding 504 loan.
* * * * *
0
8. Amend Sec. 120.835 by revising paragraph (c) to read as follows:
Sec. 120.835 Application to expand an Area of Operations.
* * * * *
(c) Multi-State CDC Expansion. A CDC may apply to be a Multi-State
CDC only if the state the CDC seeks to expand into is contiguous to the
State of the CDC's incorporation and the CDC has a loan committee
meeting the requirement of Sec. 120.823.
0
9. Amend Sec. 120.882 by revising paragraph (a) to read as follows:
Sec. 120.882 Eligible Project costs for 504 loans.
* * * * *
(a) Costs directly attributable to the Project including
expenditures incurred by the Borrower (with its own funds or from a
loan) to acquire land used in the Project, or for any other expense
directly attributable to the Project, prior to applying to SBA for the
504 loan;
* * * * *
0
10. Amend Sec. 120.920 by adding two sentences at the end of paragraph
(b) to read as follows:
Sec. 120.920 Required participation by the Third Party Lender.
* * * * *
(b) * * * The 504 loan is usually collateralized by a second lien
on Project Property (``Common Collateral''). If the Third Party Lender
requires a lien on collateral in addition to the Common Collateral, in
the event of liquidation, the Third Party Lender must apply the
proceeds from the sale of such additional collateral to the balance
outstanding on the Third Party Loan prior to the application of
proceeds from the sale of the common collateral to the Third Party
Loan.
Sec. 120.925 [Removed]
0
11. Remove Sec. 120.925.
PART 121--SMALL BUSINESS SIZE REGULATIONS
0
12. The authority citation for part 121 continues to read as follows:
Authority: 15 U.S.C. 632, 634(b)(6), 636(b), 662, and 694a(9).
0
13. Amend Sec. 121.103 by removing and reserving paragraph (a)(7) and
adding paragraph (a)(8) to read as follows:
Sec. 121.103 How does SBA determine affiliation?
(a) * * *
(8) For applicants for 7(a) loans, 504 loans and microloans,
affiliation is determined under Sec. 121.302 instead of this Sec.
121.103.
* * * * *
Sec. Sec. 121.302 through 121.305 [Redesignated as Sec. Sec. 121.303
through 121.306]
0
14. Redesignate Sec. Sec. 121.302 through 121.305 as Sec. Sec.
121.303 through 121.306 and add a new Sec. 121.302 to read as follows:
Sec. 121.302. Principles of affiliation to determine size of
applicants for 7(a) loans, 504 loans, and microloans.
(a) General principles of affiliation. Generally, affiliation
exists when one concern controls or has the power to control another,
or when a third party (or parties) controls or has the power to control
both concerns. Control may arise through ownership, management, or
other relationships or interactions between the parties. In determining
an applicant's size, SBA counts the receipts, employees, or other
measure of size of the applicant whose size is at issue and all of its
domestic and foreign affiliates, regardless of whether the affiliates
are organized for profit. The exceptions to affiliation coverage set
[[Page 12646]]
forth in Sec. 121.103(b) are incorporated into this section by
reference. SBA will not consider negative control, by itself, as set
forth in Sec. 121.103(a)(3) of this part to create affiliation under
this section. In determining affiliation under this section, SBA will
consider the totality of the circumstances to determine whether
affiliation exists, even though no single factor may be sufficient to
constitute affiliation.
(b) Affiliation based on ownership. For determining affiliation
based on ownership:
(1) A concern is an affiliate of a person (including any
individual, concern or other entity) that owns or has the power to
control more than 50 percent of the voting equity of the concern. If no
person owns or has the power to control more than 50 percent of a
concern's voting equity, SBA will deem the Chief Executive Officer
(CEO) or President of the concern (or other officers, managing members,
partners, or directors who control the management of the concern) to be
in control of the concern.
(2) If any two or more persons (including any individual, concern
or other entity) collectively own or have the power to control more
than 50 percent of the voting equity of two or more concerns (the
``collective owners''), then there is affiliation between such concerns
and between each concern and each collective owner.
(c) Affiliation arising under options, convertible securities, and
agreements to merge. In determining size, SBA considers options,
convertible securities, and agreements to merge (including agreements
in principle) to have a present effect on the power to control a
concern. SBA treats such options, convertible securities, and
agreements as though the rights granted have been exercised.
(1) Agreements to open or continue negotiations towards the
possibility of a merger or a sale of stock or other equity at some
later date are not considered ``agreements in principle'' and are thus
not given present effect.
(2) Options, convertible securities, and agreements that are
subject to conditions precedent which are incapable of fulfillment,
speculative, conjectural, or unenforceable under state or Federal law,
or where the probability of the transaction (or exercise of the rights)
occurring is shown to be extremely remote, are not given present
effect.
(3) An individual, concern or other entity that controls one or
more other concerns cannot use options, convertible securities, or
agreements to appear to terminate such control before actually doing
so. SBA will not give present effect to individuals', concerns' or
other entities' ability to divest all or part of their ownership
interest in order to avoid a finding of affiliation.
(d) Affiliation based on common management. Affiliation exists
where the CEO or President of a concern (or other officers, managing
members, partners or directors who control the management of the
concern) also controls the management of one or more other concerns.
Affiliation also arises where a single person or entity that controls
the board of directors of one concern also controls the board of
directors or management of one or more other concerns.
(e) Affiliation based on franchise, license and similar agreements.
If the applicant is a franchisee, licensee or other similar entity, the
provisions of Sec. 121.103(i) apply.
(f) Affidavit of applicant. Each applicant for a 7(a) loan or a 504
loan must include as part of its application for financial assistance
an Affidavit in which it discloses all owners of the applicant and
their percentage of ownership and discloses any affiliates as
determined under this section. The Affidavit must be executed by the
applicant's CEO or equivalent.
Dated: February 19, 2013.
Karen G. Mills,
Administrator.
[FR Doc. 2013-04221 Filed 2-22-13; 8:45 am]
BILLING CODE 8025-01-P