Business and Industry Guaranteed Loan Program Annual Renewal Fee, 57483-57486 [05-19722]
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57483
Rules and Regulations
Federal Register
Vol. 70, No. 190
Monday, October 3, 2005
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
Classification
This final rule has been determined to
be non-significant and has not been
reviewed by the Office of Management
and Budget (OMB) under Executive
Order 12866.
The Code of Federal Regulations is sold by
the Superintendent of Documents. Prices of
new books are listed in the first FEDERAL
REGISTER issue of each week.
Programs Affected
The Catalog of Federal Domestic
Assistance number for the program
impacted by this action is 10.768,
Business and Industry Loans.
DEPARTMENT OF AGRICULTURE
Civil Justice Reform
This proposed rule has been reviewed
under Executive Order 12988, Civil
Justice Reform. In accordance with this
rule, (1) all state and local laws and
regulations that are in conflict with this
rule will be preempted, (2) no
retroactive effect will be given this rule,
and (3) administrative proceedings of
the National Appeals Division (7 CFR
part 11) must be exhausted before
bringing suit in court challenging action
taken under this rule.
Rural Business-Cooperative Service
7 CFR Parts 4279 and 4287
RIN 0570–AA34
Business and Industry Guaranteed
Loan Program Annual Renewal Fee
Rural Business-Cooperative
Service, USDA.
ACTION: Final rule.
AGENCY:
SUMMARY: In this final rule the Rural
Business-Cooperative Service (the
Agency) amends its regulation for the
Business and Industry (B&I) Guaranteed
Loan Program to provide the authority
for the charging of an annual renewal
fee on all loans obligated after the
publication of the final rule. This
annual renewal fee is in addition to the
existing one-time guarantee fee. Changes
to modify the program regulations were
originally proposed on February 28,
2005. The intended effect of this rule is
to reduce the subsidy rate for
guaranteed loans allowing the budget
authority dollar level to support a
greater level of assistance to the public
(i.e., higher supportable loan level). A
notice will be published in the Federal
Register each fiscal year that will
establish the guarantee fee rate and any
annual renewal fee rate for loans
obligated during that fiscal year.
DATES: This rule is effective October 3,
2005.
FOR FURTHER INFORMATION CONTACT: Rick
Bonnet, Special Projects/Programs
Oversight Division, Rural BusinessCooperative Service, U.S. Department of
Agriculture, STOP 3221, 1400
Independence Avenue, SW.,
Washington, DC 20250–3221, telephone
(202) 720–1804, or by e-mail to
rick.bonnet@wdc.usda.gov.
SUPPLEMENTARY INFORMATION:
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Environmental Impact Statement
This document has been reviewed in
accordance with 7 CFR part 1940,
subpart G, ‘‘Environmental Program.’’
The Agency has determined that this
action does not constitute a major
Federal action significantly affecting the
quality of the human environment, and,
in accordance with the National
Environmental Policy Act of 1969, 42
U.S.C. 4321 et seq., this is a categorical
exclusion and therefore an
Environmental Impact Statement is not
required.
Government Paperwork Elimination
Act (GPEA) Statement
The Agency is committed to
compliance with GPEA, which requires
Government agencies, in general to
provide the public the option of
submitting information or transacting
business electronically to the maximum
extent possible.
Paperwork Reduction Act
In accordance with the Paperwork
Reduction Act of 1995, the information
collection requirements contained in
this regulation have been approved by
OMB under control number 0570–0017.
Unfunded Mandates
Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA), Pubic Law
104–4 establishes requirements for
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Federal agencies to assess the effects of
their regulatory actions on State, local,
and tribal governments and the private
sector. Under section 202 of the UMRA,
agencies generally must prepare a
written statement, including a costbenefit analysis, for proposed and final
rules with ‘‘Federal mandates’’ that may
result in expenditures to State, local, or
tribal governments, in the aggregate, or
to the private sector of $100 million or
more in any one year. When such a
statement is needed for a rule, section
205 of UMRA generally requires
agencies to identify and consider a
reasonable number of regulatory
alternatives and adopt the least costly,
more cost-effective, or least burdensome
alternative that achieves the objectives
of the rule. This rule contains no
Federal mandates (under the regulatory
provisions of Title II of the UMRA) for
State, local, and tribal governments or
the private sector. Thus, this rule is not
subject to the requirements of sections
202 and 205 of the UMRA.
Regulatory Flexibility Act
In compliance with the Regulatory
Flexibility Act, the Agency has
determined that this action would not
have a significant economic impact on
a substantial number of small entities,
because the action will not affect a
significant number of small entities, as
defined by the Regulatory Flexibility
Act (5 U.S.C. 601). The Agency made
this determination based on the fact that
this regulation only impacts those who
choose to participate in the program.
Small entity applicants will not be
impacted to a greater extent than large
entity applicants.
Executive Order 13132
It has been determined that, under
Executive Order 13132, Federalism, this
rule does not have sufficient federalism
implications to warrant the preparation
of a Federalism Assessment. The
provisions contained in this rule will
not have a substantial direct effect on
states or their political subdivisions or
on the distribution of power and
responsibilities among the various
levels of government.
Executive Order 13175
Executive Order 13175, Consultation
and Coordination with Indian Tribal
Governments, imposes requirements on
USDA in the development of regulatory
policies that have tribal implications or
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Federal Register / Vol. 70, No. 190 / Monday, October 3, 2005 / Rules and Regulations
preempt tribal law. USDA has
determined that the proposed regulation
does not have a substantial direct effect
on one or more Indian tribes or on either
the relationship or the distribution of
powers and responsibilities between the
Federal Government and the Indian
Tribes. Thus, the proposed rule is not
subject to the requirements of Executive
Order 13175.
Background
The cost of the B&I Guaranteed Loan
Program has gone up in recent years.
This is due to higher defaults and lower
interest rates. In the meantime, there is
still an interest in funding this program
in order to improve, develop, or finance
business, industry, and employment
and improve the economic and
environmental climate in rural
communities. To do that in a cost
efficient manner for the taxpayer, the
Agency is implementing its authority to
impose an annual renewal fee. This will
reduce the subsidy allowing the Agency,
without additional costs to the taxpayer,
to maintain the level of assistance that
has been historically provided for this
program to meet demand.
The annual renewal fee is based on
similar fees charged in the Small
Business Administration (SBA)
programs. Additionally, this type of fee
is consistent with the recently
authorized Renewable Energy Systems
and Energy Efficiency Improvements
Guaranteed Loan Program within the
Agency. The borrower pool for the B&I
Guaranteed Loan Program is even more
likely to be able to afford this type of fee
compared to other programs mentioned
because the amount of the fee is
anticipated to be less.
The SBA 7(a) Loan Guarantee
Program and the B&I program are
similar in that they both require an
initial one-time fee; and 7(a) loans have
an annual fee similar to the one being
implemented for the B&I program. In
fiscal year (FY) 1996, SBA made major
changes in its 7(a) program by lowering
the maximum percentage of the loan
which could be guaranteed and
increasing both the initial fee and the
annual fee, which made the program
more expensive and less valuable for
borrowers and lenders. We examined
changes in loan volume and loss levels
associated with these changes, and
found no convincing evidence that the
FY 1996 changes decreased demand for
the 7(a) program.
Subsidy rates are established using
historic loss data from the program and
other assumptions. In recent years the
subsidy rate has increased significantly,
resulting in a reduction in the amount
of loans that could be guaranteed with
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the same budget authority. In the
absence of additional budgetary
authority, the proposed annual fee is
necessary to cover expected losses from
the program. The effect of the fee on the
loan demand and program activity over
the long term will depend on the size of
the fee and other factors not related to
the fee, including interest rates and
general economic growth. This change
is prudent and cost efficient and will
allow us to maintain the level of
assistance going to rural America at a
reasonable cost to the taxpayer.
The Agency is waiving the 30-day
waiting period between publication of
the rule and when it will take effect.
The reason is to make all loans obligated
in FY 2006 subject to the same fee
structure. Having loans obligated with
different fee structures in the same fiscal
year could cause confusion and impose
an additional administrative burden on
lenders. Also, because lenders will not
need to make the first renewal fee
payments to the Agency until January of
2007, and because the Final Rule makes
only minor changes to the Proposed
Rule, program participants are not
expected to be disadvantaged by this
rule’s earlier implementation. For these
reasons, the Agency finds that good
cause exists for this rule’s immediate
implementation.
Comments on the Proposed Rule and
Responses
The following paragraphs summarize
the comments received and the Agency
responses. We received 11 responses of
which 8 were from the lending
community (3 from the same bank), 2
were from Agency employees, and one
was from a national association.
Generally, the comments were negative.
The only positive comment was that the
annual renewal fee was the best
alternative to reduced funding levels in
the short term.
Several changes were made to the
final rule as a result of comments
received. The most significant change
was to give the Agency discretion in
canceling the guarantee for nonpayment
of the renewal fee and to charge lenders
interest on any unpaid renewal fees.
Seven respondents felt an annual fee
would be a financial burden/hardship
on the borrowers, especially new
businesses and those with more limited
recourses. The Agency acknowledges
that the fee will most likely represent an
increased cost to the borrower.
However, because the B&I Guaranteed
Loan Program is intended only for
credit-worthy businesses, the Agency
feels the additional financing cost will
not jeopardize the success of the
businesses assisted. Agencies, in
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accordance with the Federal Credit
Reform Act of 1990 and guidance
provided in OMB Circular A–129,
Appendix A(II)(4)(b)(1), are to establish
fees structures at levels that minimize
subsidy costs while supporting
achievement of program objectives. The
Agency is taking measures to improve
the quality of its portfolio and reduce
loan losses. Nevertheless, the Agency is
required to further minimize subsidy
costs. The Agency feels the renewal fee
is the most equitable solution to
increased costs without jeopardizing the
achievement of program objectives.
Six respondents felt the renewal fee
would make the B&I Guaranteed Loan
Program more complicated and difficult
to market. The uncertainty of the
amount of the fee percentage rate would
make it especially difficult to market,
which would discourage lenders from
marketing the program. USDA could
lose its competitive advantage with SBA
if additional SBA-like fees are imposed.
One respondent commented that the fee
rate could change if the initial
application was received in a fiscal year,
but not obligated until the next fiscal
year, which would further hamper
marketing activities. The Agency
acknowledges the program complexity
and marketing challenges the renewal
fee will add, but a reduction in the
subsidy cost is needed to maintain the
level of assistance that has been
historically provided for this program.
As described in § 4279.107(b)(1) of the
rule, the Agency will publish the fee
percentage rate in a Federal Register
notice each fiscal year. The Agency will
publish the notice as soon as the fee
percentage rate has been determined to
provide as much advanced notice as
possible. All loans obligated that fiscal
year will be subject to that same fee
percentage rate for the full term of the
loan.
Four respondents felt the increased
cost of the program would result in
fewer loans and businesses being
assisted, thereby hindering economic
development and job creation. The
Agency had a Regulatory Impact
Analysis completed to determine the
impact that a renewal fee would likely
have on loan demand. As mentioned
earlier in this document, in FY 1996,
SBA made major changes in its 7(a)
program by lowering the maximum
percentage of the loan which could be
guaranteed and increasing both the
initial fee and the annual fee, which
made the program more expensive and
less valuable for borrowers and lenders.
A review of the changes in loan volume
and loss levels associated with these
changes revealed no convincing
evidence that the FY 1996 changes
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decreased demand for the 7(a) program.
Due to the similarities of the programs,
the Agency believes the results will be
similar.
One respondent felt the additional
cost of the program would undermine
worthwhile projects and discourage the
more credit-worthy businesses from
participating in the program. This could
result in a decline in the quality of the
overall portfolio over time, which
would tend to increase costs to the
government. The Regulatory Impact
Analysis revealed that there was no
convincing evidence that the changes in
the SBA program resulted in a decrease
in the quality of the SBA 7(a) loan
portfolio. Due to the similarities of the
programs, the Agency believes the
impact on the B&I Guaranteed Loan
Program will be similar.
Six respondents felt it would be a
significant administrative burden for the
lenders. The Agency appreciates the
burden this change will impose. In an
effort to keep the burden to a minimum,
the Agency is combining the lender’s
existing semiannual reporting
requirement with the renewal fee
payment process. Currently, lenders are
required to report the principal and
interest balances, amount advanced,
interest rate, loan status, and amount
ahead or behind schedule on each
guarantee loan, semiannually. The
Agency is web-enabling this process
where the lender will be required to
enter a secure website, enter the
currently required information, as of
December 31 of each year, and the
system will calculate the annual fee due
on that loan. The fee will then be drawn
from a specified account in the lender’s
bank on a specified date. This action
will satisfy both the annual renewal fee
payment and the semi-annual status
report to the Agency. The due date of
the renewal fee was also changed from
March 1 to January 31 to correspond
with the due date of the lender’s
semiannual status reporting
requirement, but the date any unpaid
fee was considered delinquent remained
April 1.
One respondent suggested a change in
the name of the form used to collect the
renewal fee. The final rule is revised to
remove the name of the form to provide
maximum flexibility in the mechanism
used to collect the fee.
One respondent thought the renewal
fee should be paid monthly or quarterly
to reduce the financial impact from one
annual payment. The Agency
acknowledges the language in the
proposed rule suggested the borrower
was expected to pay the renewal fee
once a year. The Agency anticipates
lenders will likely factor the renewal fee
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into their interest rate structure, and
collect the renewal fee as a part of the
regular borrower payments. The
language is therefore revised to give the
lender maximum flexibility in
establishing a rate structure. The final
rule does not stipulate who is
responsible for the fee. The lender
actually pays the fee, but may pass the
fee on to the borrower.
One respondent felt the fee should be
restricted to the guaranteed portion of
the loan. The Agency agrees, and the fee
will be charged only on the guaranteed
portion of the loan.
One respondent felt the Agency
should refund the ‘‘unearned’’ portion
of the renewal fee when the borrower
prepays its loan before the end of the
year, after the renewal fee has been paid
for the year. The Agency is not adopting
this suggestion as the administrative
burden on lenders and the Agency
would be prohibitive. The amount of the
fee on the average B&I loan is relatively
small. With the proposed annual
renewal fee rate of 1⁄8 of one percent for
FY 2006, the amount of the fee on a $1
million B&I loan for a full year would
be only $1,250. Depending on how a
lender structures the loan payments, the
borrower may not benefit from the
return of ‘‘unearned’’ fees. Section
4279.107 states the guarantee fees are
non-refundable, and this has been the
policy in the B&I Guaranteed Loan
Program for many years.
One respondent felt there could be
significant servicing and legal issues for
the Agency if a guarantee is cancelled
for non-payment of the renewal fee. The
Agency agrees and is changing the
language to state that the Agency may,
at its discretion, cancel the guarantee to
the lender for nonpayment of the
renewal fee. Language is also added
where the Agency will charge the lender
interest on any delinquent renewal fees
and will deduct any unpaid renewal
fees from any loss payment made to the
lender.
One respondent suggested alternatives
to the renewal fee, such as varying the
amount of initial fee, based on the size
of the loan. The Agency has statutory
limitations on the maximum initial fee
that may be charged and is charging the
maximum initial fee allowed, with
certain limited exceptions. The Agency
feels the annual renewal fee approach is
the most equitable alternative.
Two respondents felt the proposed
rule change would be a violation of
statute. The Farm Security and Rural
Investment Act of 2002 (Farm Bill) gives
the Secretary authority to assess a 1time fee in an amount that does not
exceed 2 percent of the guaranteed
principal portion of the loan. One
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57485
respondent indicated that the proposed
rule eliminates the language concerning
the cap, which could result in a
perceived conflict with the terms of the
Farm Bill. The Agency is replacing the
language concerning the 2 percent cap.
The other respondent suggested the
renewal fee violates statute because the
combined fees will very likely exceed 2
percent cap established in the statute.
The Rural Development Manager’s
Report to the 2002 Farm Bill states that
the 2 percent initial fee limit established
by statute does not prevent the Secretary
from imposing annual fees which may
be needed to preserve an appropriation
level.
One respondent stated that
§ 4279.107(b)(2) states the holder’s
rights will continue in effect as
specified in the Loan Note Guarantee,
and suggested the reference should be to
the Assignment Guarantee Agreement
instead. The final rule references both
the Loan Note Guarantee and the
Assignment Guarantee Agreement.
Several technical changes not made in
the proposed rule were made in the
final rule to help Agency employees and
lenders administer the program.
Language was also added to the B&I
loan servicing regulation (7 CFR Part
4287, subpart B) to reference the annual
renewal fee requirements described in
§ 4279.107.
Section 4279.107(a)(2)(i) of the
proposed rule stated the rate of the fee
is the rate in effect at the time of the
original issuance of the Conditional
Commitment for the loan and will
remain in effect for the life of the loan.
It is very unlikely, but possible, for the
Conditional Commitment and loan
obligation to occur in different fiscal
years. Because the fee rate and
obligation are tied to the fiscal year in
the Agency’s accounting system, the
controlling event was changed to the
date of obligation.
List of Subjects in 7 CFR Parts 4279 and
4287
Loan programs—Business and
industry—Rural development
assistance, Rural areas.
Therefore, chapter XLII, title 7, Code
of Federal Regulations, is amended as
follows:
I
PART 4279—GUARANTEED
LOANMAKING
1. The authority citation for part 4279
is revised to read as follows:
I
Authority: 5 U.S.C. 301; 7 U.S.C. 1989.
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Federal Register / Vol. 70, No. 190 / Monday, October 3, 2005 / Rules and Regulations
Subpart B—Business and Industry
Loans
2. Section 4279.107 is revised to read
as follows:
I
§ 4279.107
Guarantee fees.
For all new loans there are two types
of non-refundable guarantee fees to be
paid by the lender. The fees may be
passed on to the borrower. The fees may
be forwarded to the Agency through an
electronic funds transfer system or, at
the Agency’s discretion, by a check
payable to USDA using a USDAapproved form.
(a) Initial guarantee fee. The initial fee
is paid at the time the Loan Note
Guarantee is issued. The fee may be
included as an eligible loan purpose in
the guaranteed loan. The fee will be the
rate (a specified percentage not to
exceed 2 percent) multiplied by the
principal loan amount, multiplied by
the percent of guarantee. Subject to
specified annual limits set by the
Agency, the initial guarantee fee may be
reduced to 1 percent if the borrower’s
business supports value-added
agriculture and results in farmers
benefiting financially, or
(1) Is a high impact business
development investment in accordance
with § 4279.155(b)(5), and
(2) Is located in a rural community
that:
(i) Is experiencing long-term
population decline and job
deterioration, or
(ii) Has remained persistently poor
over the last 60 years, or
(iii) Is experiencing trauma as a result
of natural disaster, or
(iv) Is experiencing fundamental
structural changes in its economic base.
(b) Annual renewal fee. The annual
renewal fee is paid once a year and is
required to maintain the enforceability
of the guarantee as to the lender.
(1) The rate of the annual renewal fee
(a specified percentage) is established
by Rural Development in an annual
notice published in the Federal
Register, multiplied by the outstanding
principal loan balance as of December
31 of each year, multiplied by the
percent of guarantee. The rate is the rate
in effect at the time the loan is
obligated, and will remain in effect for
the life of the loan.
(2) Annual renewal fees are due on
January 31. Payments not received by
April 1 are considered delinquent and,
at the Agency’s discretion, may result in
cancellation of the guarantee to the
lender. Holders’ rights will continue in
effect as specified in the Loan Note
Guarantee and Assignment Guarantee
Agreement. Any delinquent annual
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renewal fees will bear interest at the
note rate and will be deducted from any
loss payment due the lender. For loans
where the Loan Note Guarantee is
issued between October 1 and December
31, the first annual renewal fee payment
will be due January 31 of the second
year following the date the Loan Note
Guarantee was issued.
DATES:
PART 4287—SERVICING
In an interim rule effective and
published in the Federal Register on
December 9, 2002 (67 FR 72827–72830,
Docket No. 02–024–1), we amended the
regulations in 9 CFR part 93 regarding
the importation of horses into the
United States by requiring persons who
cancel reservations for stall space at
import quarantine facilities to notify us
earlier and by increasing the fee for
canceling reservations. Under the new
fee structure, persons who cancel a
reservation 30 business days or more
prior to the reservation date will be
charged 25 percent of the reservation
fee; persons who cancel a reservation 15
to 29 business days prior to the
reservation date will be charged 50
percent of the reservation fee; and
persons who cancel a reservation less
than 15 business days prior to the
reservation date will forfeit 100 percent
of the reservation fee. We took that
action to discourage importers from
reserving space that they may not use
and canceling when it is too late for
others to use the space and to recover
the fixed cost associated with operating
quarantine facilities when stall space
goes unused. This interim rule was
intended to improve the occupancy rate
of stall space, and, therefore, the
efficiency of import quarantine
facilities.
Comments on the interim rule were
required to be received on or before
February 7, 2003. We received three
comments by that date. The comments
were from a horse industry group, a
transportation association, and a
transport company. We have carefully
considered all of the comments we
received. They are discussed below.
3. The authority citation for part 4287
continues to read as follows:
I
Authority: 5 U.S.C. 301; 7 U.S.C. 1989.
Subpart B—Servicing Business and
Industry Guaranteed Loans
§ 4287.107
[Amended]
4. Section 4287.107(a) is revised to
read as follows:
*
*
*
*
*
(a) Lender reports and annual renewal
fee. The lender must report the
outstanding principal and interest
balance on each guaranteed loan
semiannually using a USDA-approved
status report or other approved format.
The lender will transmit the annual
renewal fee to the Agency
simultaneously with the December 31
semiannual status report in accordance
with 7 CFR part 4279, subpart B,
§ 4279.107.
*
*
*
*
*
I
Dated: September 27, 2005.
Thomas C. Dorr,
Under Secretary, Rural Development.
[FR Doc. 05–19722 Filed 9–30–05; 8:45 am]
BILLING CODE 3410–XY–P
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection
Service
9 CFR Part 93
[Docket No. 02–024–2]
Stall Reservations at Import
Quarantine Facilities
Animal and Plant Health
Inspection Service, USDA.
ACTION: Affirmation of interim rule as
final rule.
AGENCY:
SUMMARY: We are adopting as a final
rule, without change, an interim rule
that amended the regulations regarding
the importation of horses into the
United States by requiring persons who
cancel reservations for stall space at
import quarantine facilities to notify us
earlier and by increasing the fee for
canceling reservations.
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The interim rule became
effective on December 9, 2002.
Dr.
Freeda Isaac, Senior Staff Veterinarian,
Technical Trade Services, VS, APHIS,
4700 River Road Unit 39, Riverdale, MD
20737–1231; (301) 734–8364.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
Background
Note: In the ‘‘Background’’ section of the
interim rule, we stated that brokers are
required to have certain diagnostic tests
performed on their horses and that these tests
must be processed at National Veterinary
Services Laboratories (NVSL). Some
commenters interpreted this statement to
mean that we were requiring that horses be
pretested for the diseases dourine, glanders,
piroplasmosis, and infectious equine anemia
and that this pretesting be performed at
NVSL. That perception is incorrect.
Pretesting is not a requirement but may be
done at the discretion of the importer or
agent. If pretesting is done, importers may
utilize NVSL. the Animal and Plant Health
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Agencies
[Federal Register Volume 70, Number 190 (Monday, October 3, 2005)]
[Rules and Regulations]
[Pages 57483-57486]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-19722]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
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Federal Register / Vol. 70, No. 190 / Monday, October 3, 2005 / Rules
and Regulations
[[Page 57483]]
DEPARTMENT OF AGRICULTURE
Rural Business-Cooperative Service
7 CFR Parts 4279 and 4287
RIN 0570-AA34
Business and Industry Guaranteed Loan Program Annual Renewal Fee
AGENCY: Rural Business-Cooperative Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In this final rule the Rural Business-Cooperative Service (the
Agency) amends its regulation for the Business and Industry (B&I)
Guaranteed Loan Program to provide the authority for the charging of an
annual renewal fee on all loans obligated after the publication of the
final rule. This annual renewal fee is in addition to the existing one-
time guarantee fee. Changes to modify the program regulations were
originally proposed on February 28, 2005. The intended effect of this
rule is to reduce the subsidy rate for guaranteed loans allowing the
budget authority dollar level to support a greater level of assistance
to the public (i.e., higher supportable loan level). A notice will be
published in the Federal Register each fiscal year that will establish
the guarantee fee rate and any annual renewal fee rate for loans
obligated during that fiscal year.
DATES: This rule is effective October 3, 2005.
FOR FURTHER INFORMATION CONTACT: Rick Bonnet, Special Projects/Programs
Oversight Division, Rural Business-Cooperative Service, U.S. Department
of Agriculture, STOP 3221, 1400 Independence Avenue, SW., Washington,
DC 20250-3221, telephone (202) 720-1804, or by e-mail to
rick.bonnet@wdc.usda.gov.
SUPPLEMENTARY INFORMATION:
Classification
This final rule has been determined to be non-significant and has
not been reviewed by the Office of Management and Budget (OMB) under
Executive Order 12866.
Programs Affected
The Catalog of Federal Domestic Assistance number for the program
impacted by this action is 10.768, Business and Industry Loans.
Civil Justice Reform
This proposed rule has been reviewed under Executive Order 12988,
Civil Justice Reform. In accordance with this rule, (1) all state and
local laws and regulations that are in conflict with this rule will be
preempted, (2) no retroactive effect will be given this rule, and (3)
administrative proceedings of the National Appeals Division (7 CFR part
11) must be exhausted before bringing suit in court challenging action
taken under this rule.
Environmental Impact Statement
This document has been reviewed in accordance with 7 CFR part 1940,
subpart G, ``Environmental Program.'' The Agency has determined that
this action does not constitute a major Federal action significantly
affecting the quality of the human environment, and, in accordance with
the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq.,
this is a categorical exclusion and therefore an Environmental Impact
Statement is not required.
Government Paperwork Elimination Act (GPEA) Statement
The Agency is committed to compliance with GPEA, which requires
Government agencies, in general to provide the public the option of
submitting information or transacting business electronically to the
maximum extent possible.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995, the
information collection requirements contained in this regulation have
been approved by OMB under control number 0570-0017.
Unfunded Mandates
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pubic
Law 104-4 establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA,
agencies generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``Federal
mandates'' that may result in expenditures to State, local, or tribal
governments, in the aggregate, or to the private sector of $100 million
or more in any one year. When such a statement is needed for a rule,
section 205 of UMRA generally requires agencies to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, more cost-effective, or least burdensome alternative that
achieves the objectives of the rule. This rule contains no Federal
mandates (under the regulatory provisions of Title II of the UMRA) for
State, local, and tribal governments or the private sector. Thus, this
rule is not subject to the requirements of sections 202 and 205 of the
UMRA.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act, the Agency has
determined that this action would not have a significant economic
impact on a substantial number of small entities, because the action
will not affect a significant number of small entities, as defined by
the Regulatory Flexibility Act (5 U.S.C. 601). The Agency made this
determination based on the fact that this regulation only impacts those
who choose to participate in the program. Small entity applicants will
not be impacted to a greater extent than large entity applicants.
Executive Order 13132
It has been determined that, under Executive Order 13132,
Federalism, this rule does not have sufficient federalism implications
to warrant the preparation of a Federalism Assessment. The provisions
contained in this rule will not have a substantial direct effect on
states or their political subdivisions or on the distribution of power
and responsibilities among the various levels of government.
Executive Order 13175
Executive Order 13175, Consultation and Coordination with Indian
Tribal Governments, imposes requirements on USDA in the development of
regulatory policies that have tribal implications or
[[Page 57484]]
preempt tribal law. USDA has determined that the proposed regulation
does not have a substantial direct effect on one or more Indian tribes
or on either the relationship or the distribution of powers and
responsibilities between the Federal Government and the Indian Tribes.
Thus, the proposed rule is not subject to the requirements of Executive
Order 13175.
Background
The cost of the B&I Guaranteed Loan Program has gone up in recent
years. This is due to higher defaults and lower interest rates. In the
meantime, there is still an interest in funding this program in order
to improve, develop, or finance business, industry, and employment and
improve the economic and environmental climate in rural communities. To
do that in a cost efficient manner for the taxpayer, the Agency is
implementing its authority to impose an annual renewal fee. This will
reduce the subsidy allowing the Agency, without additional costs to the
taxpayer, to maintain the level of assistance that has been
historically provided for this program to meet demand.
The annual renewal fee is based on similar fees charged in the
Small Business Administration (SBA) programs. Additionally, this type
of fee is consistent with the recently authorized Renewable Energy
Systems and Energy Efficiency Improvements Guaranteed Loan Program
within the Agency. The borrower pool for the B&I Guaranteed Loan
Program is even more likely to be able to afford this type of fee
compared to other programs mentioned because the amount of the fee is
anticipated to be less.
The SBA 7(a) Loan Guarantee Program and the B&I program are similar
in that they both require an initial one-time fee; and 7(a) loans have
an annual fee similar to the one being implemented for the B&I program.
In fiscal year (FY) 1996, SBA made major changes in its 7(a) program by
lowering the maximum percentage of the loan which could be guaranteed
and increasing both the initial fee and the annual fee, which made the
program more expensive and less valuable for borrowers and lenders. We
examined changes in loan volume and loss levels associated with these
changes, and found no convincing evidence that the FY 1996 changes
decreased demand for the 7(a) program.
Subsidy rates are established using historic loss data from the
program and other assumptions. In recent years the subsidy rate has
increased significantly, resulting in a reduction in the amount of
loans that could be guaranteed with the same budget authority. In the
absence of additional budgetary authority, the proposed annual fee is
necessary to cover expected losses from the program. The effect of the
fee on the loan demand and program activity over the long term will
depend on the size of the fee and other factors not related to the fee,
including interest rates and general economic growth. This change is
prudent and cost efficient and will allow us to maintain the level of
assistance going to rural America at a reasonable cost to the taxpayer.
The Agency is waiving the 30-day waiting period between publication
of the rule and when it will take effect. The reason is to make all
loans obligated in FY 2006 subject to the same fee structure. Having
loans obligated with different fee structures in the same fiscal year
could cause confusion and impose an additional administrative burden on
lenders. Also, because lenders will not need to make the first renewal
fee payments to the Agency until January of 2007, and because the Final
Rule makes only minor changes to the Proposed Rule, program
participants are not expected to be disadvantaged by this rule's
earlier implementation. For these reasons, the Agency finds that good
cause exists for this rule's immediate implementation.
Comments on the Proposed Rule and Responses
The following paragraphs summarize the comments received and the
Agency responses. We received 11 responses of which 8 were from the
lending community (3 from the same bank), 2 were from Agency employees,
and one was from a national association. Generally, the comments were
negative. The only positive comment was that the annual renewal fee was
the best alternative to reduced funding levels in the short term.
Several changes were made to the final rule as a result of comments
received. The most significant change was to give the Agency discretion
in canceling the guarantee for nonpayment of the renewal fee and to
charge lenders interest on any unpaid renewal fees.
Seven respondents felt an annual fee would be a financial burden/
hardship on the borrowers, especially new businesses and those with
more limited recourses. The Agency acknowledges that the fee will most
likely represent an increased cost to the borrower. However, because
the B&I Guaranteed Loan Program is intended only for credit-worthy
businesses, the Agency feels the additional financing cost will not
jeopardize the success of the businesses assisted. Agencies, in
accordance with the Federal Credit Reform Act of 1990 and guidance
provided in OMB Circular A-129, Appendix A(II)(4)(b)(1), are to
establish fees structures at levels that minimize subsidy costs while
supporting achievement of program objectives. The Agency is taking
measures to improve the quality of its portfolio and reduce loan
losses. Nevertheless, the Agency is required to further minimize
subsidy costs. The Agency feels the renewal fee is the most equitable
solution to increased costs without jeopardizing the achievement of
program objectives.
Six respondents felt the renewal fee would make the B&I Guaranteed
Loan Program more complicated and difficult to market. The uncertainty
of the amount of the fee percentage rate would make it especially
difficult to market, which would discourage lenders from marketing the
program. USDA could lose its competitive advantage with SBA if
additional SBA-like fees are imposed. One respondent commented that the
fee rate could change if the initial application was received in a
fiscal year, but not obligated until the next fiscal year, which would
further hamper marketing activities. The Agency acknowledges the
program complexity and marketing challenges the renewal fee will add,
but a reduction in the subsidy cost is needed to maintain the level of
assistance that has been historically provided for this program. As
described in Sec. 4279.107(b)(1) of the rule, the Agency will publish
the fee percentage rate in a Federal Register notice each fiscal year.
The Agency will publish the notice as soon as the fee percentage rate
has been determined to provide as much advanced notice as possible. All
loans obligated that fiscal year will be subject to that same fee
percentage rate for the full term of the loan.
Four respondents felt the increased cost of the program would
result in fewer loans and businesses being assisted, thereby hindering
economic development and job creation. The Agency had a Regulatory
Impact Analysis completed to determine the impact that a renewal fee
would likely have on loan demand. As mentioned earlier in this
document, in FY 1996, SBA made major changes in its 7(a) program by
lowering the maximum percentage of the loan which could be guaranteed
and increasing both the initial fee and the annual fee, which made the
program more expensive and less valuable for borrowers and lenders. A
review of the changes in loan volume and loss levels associated with
these changes revealed no convincing evidence that the FY 1996 changes
[[Page 57485]]
decreased demand for the 7(a) program. Due to the similarities of the
programs, the Agency believes the results will be similar.
One respondent felt the additional cost of the program would
undermine worthwhile projects and discourage the more credit-worthy
businesses from participating in the program. This could result in a
decline in the quality of the overall portfolio over time, which would
tend to increase costs to the government. The Regulatory Impact
Analysis revealed that there was no convincing evidence that the
changes in the SBA program resulted in a decrease in the quality of the
SBA 7(a) loan portfolio. Due to the similarities of the programs, the
Agency believes the impact on the B&I Guaranteed Loan Program will be
similar.
Six respondents felt it would be a significant administrative
burden for the lenders. The Agency appreciates the burden this change
will impose. In an effort to keep the burden to a minimum, the Agency
is combining the lender's existing semiannual reporting requirement
with the renewal fee payment process. Currently, lenders are required
to report the principal and interest balances, amount advanced,
interest rate, loan status, and amount ahead or behind schedule on each
guarantee loan, semiannually. The Agency is web-enabling this process
where the lender will be required to enter a secure website, enter the
currently required information, as of December 31 of each year, and the
system will calculate the annual fee due on that loan. The fee will
then be drawn from a specified account in the lender's bank on a
specified date. This action will satisfy both the annual renewal fee
payment and the semi-annual status report to the Agency. The due date
of the renewal fee was also changed from March 1 to January 31 to
correspond with the due date of the lender's semiannual status
reporting requirement, but the date any unpaid fee was considered
delinquent remained April 1.
One respondent suggested a change in the name of the form used to
collect the renewal fee. The final rule is revised to remove the name
of the form to provide maximum flexibility in the mechanism used to
collect the fee.
One respondent thought the renewal fee should be paid monthly or
quarterly to reduce the financial impact from one annual payment. The
Agency acknowledges the language in the proposed rule suggested the
borrower was expected to pay the renewal fee once a year. The Agency
anticipates lenders will likely factor the renewal fee into their
interest rate structure, and collect the renewal fee as a part of the
regular borrower payments. The language is therefore revised to give
the lender maximum flexibility in establishing a rate structure. The
final rule does not stipulate who is responsible for the fee. The
lender actually pays the fee, but may pass the fee on to the borrower.
One respondent felt the fee should be restricted to the guaranteed
portion of the loan. The Agency agrees, and the fee will be charged
only on the guaranteed portion of the loan.
One respondent felt the Agency should refund the ``unearned''
portion of the renewal fee when the borrower prepays its loan before
the end of the year, after the renewal fee has been paid for the year.
The Agency is not adopting this suggestion as the administrative burden
on lenders and the Agency would be prohibitive. The amount of the fee
on the average B&I loan is relatively small. With the proposed annual
renewal fee rate of \1/8\ of one percent for FY 2006, the amount of the
fee on a $1 million B&I loan for a full year would be only $1,250.
Depending on how a lender structures the loan payments, the borrower
may not benefit from the return of ``unearned'' fees. Section 4279.107
states the guarantee fees are non-refundable, and this has been the
policy in the B&I Guaranteed Loan Program for many years.
One respondent felt there could be significant servicing and legal
issues for the Agency if a guarantee is cancelled for non-payment of
the renewal fee. The Agency agrees and is changing the language to
state that the Agency may, at its discretion, cancel the guarantee to
the lender for nonpayment of the renewal fee. Language is also added
where the Agency will charge the lender interest on any delinquent
renewal fees and will deduct any unpaid renewal fees from any loss
payment made to the lender.
One respondent suggested alternatives to the renewal fee, such as
varying the amount of initial fee, based on the size of the loan. The
Agency has statutory limitations on the maximum initial fee that may be
charged and is charging the maximum initial fee allowed, with certain
limited exceptions. The Agency feels the annual renewal fee approach is
the most equitable alternative.
Two respondents felt the proposed rule change would be a violation
of statute. The Farm Security and Rural Investment Act of 2002 (Farm
Bill) gives the Secretary authority to assess a 1-time fee in an amount
that does not exceed 2 percent of the guaranteed principal portion of
the loan. One respondent indicated that the proposed rule eliminates
the language concerning the cap, which could result in a perceived
conflict with the terms of the Farm Bill. The Agency is replacing the
language concerning the 2 percent cap. The other respondent suggested
the renewal fee violates statute because the combined fees will very
likely exceed 2 percent cap established in the statute. The Rural
Development Manager's Report to the 2002 Farm Bill states that the 2
percent initial fee limit established by statute does not prevent the
Secretary from imposing annual fees which may be needed to preserve an
appropriation level.
One respondent stated that Sec. 4279.107(b)(2) states the holder's
rights will continue in effect as specified in the Loan Note Guarantee,
and suggested the reference should be to the Assignment Guarantee
Agreement instead. The final rule references both the Loan Note
Guarantee and the Assignment Guarantee Agreement.
Several technical changes not made in the proposed rule were made
in the final rule to help Agency employees and lenders administer the
program. Language was also added to the B&I loan servicing regulation
(7 CFR Part 4287, subpart B) to reference the annual renewal fee
requirements described in Sec. 4279.107.
Section 4279.107(a)(2)(i) of the proposed rule stated the rate of
the fee is the rate in effect at the time of the original issuance of
the Conditional Commitment for the loan and will remain in effect for
the life of the loan. It is very unlikely, but possible, for the
Conditional Commitment and loan obligation to occur in different fiscal
years. Because the fee rate and obligation are tied to the fiscal year
in the Agency's accounting system, the controlling event was changed to
the date of obligation.
List of Subjects in 7 CFR Parts 4279 and 4287
Loan programs--Business and industry--Rural development assistance,
Rural areas.
0
Therefore, chapter XLII, title 7, Code of Federal Regulations, is
amended as follows:
PART 4279--GUARANTEED LOANMAKING
0
1. The authority citation for part 4279 is revised to read as follows:
Authority: 5 U.S.C. 301; 7 U.S.C. 1989.
[[Page 57486]]
Subpart B--Business and Industry Loans
0
2. Section 4279.107 is revised to read as follows:
Sec. 4279.107 Guarantee fees.
For all new loans there are two types of non-refundable guarantee
fees to be paid by the lender. The fees may be passed on to the
borrower. The fees may be forwarded to the Agency through an electronic
funds transfer system or, at the Agency's discretion, by a check
payable to USDA using a USDA-approved form.
(a) Initial guarantee fee. The initial fee is paid at the time the
Loan Note Guarantee is issued. The fee may be included as an eligible
loan purpose in the guaranteed loan. The fee will be the rate (a
specified percentage not to exceed 2 percent) multiplied by the
principal loan amount, multiplied by the percent of guarantee. Subject
to specified annual limits set by the Agency, the initial guarantee fee
may be reduced to 1 percent if the borrower's business supports value-
added agriculture and results in farmers benefiting financially, or
(1) Is a high impact business development investment in accordance
with Sec. 4279.155(b)(5), and
(2) Is located in a rural community that:
(i) Is experiencing long-term population decline and job
deterioration, or
(ii) Has remained persistently poor over the last 60 years, or
(iii) Is experiencing trauma as a result of natural disaster, or
(iv) Is experiencing fundamental structural changes in its economic
base.
(b) Annual renewal fee. The annual renewal fee is paid once a year
and is required to maintain the enforceability of the guarantee as to
the lender.
(1) The rate of the annual renewal fee (a specified percentage) is
established by Rural Development in an annual notice published in the
Federal Register, multiplied by the outstanding principal loan balance
as of December 31 of each year, multiplied by the percent of guarantee.
The rate is the rate in effect at the time the loan is obligated, and
will remain in effect for the life of the loan.
(2) Annual renewal fees are due on January 31. Payments not
received by April 1 are considered delinquent and, at the Agency's
discretion, may result in cancellation of the guarantee to the lender.
Holders' rights will continue in effect as specified in the Loan Note
Guarantee and Assignment Guarantee Agreement. Any delinquent annual
renewal fees will bear interest at the note rate and will be deducted
from any loss payment due the lender. For loans where the Loan Note
Guarantee is issued between October 1 and December 31, the first annual
renewal fee payment will be due January 31 of the second year following
the date the Loan Note Guarantee was issued.
PART 4287--SERVICING
0
3. The authority citation for part 4287 continues to read as follows:
Authority: 5 U.S.C. 301; 7 U.S.C. 1989.
Subpart B--Servicing Business and Industry Guaranteed Loans
Sec. 4287.107 [Amended]
0
4. Section 4287.107(a) is revised to read as follows:
* * * * *
(a) Lender reports and annual renewal fee. The lender must report
the outstanding principal and interest balance on each guaranteed loan
semiannually using a USDA-approved status report or other approved
format. The lender will transmit the annual renewal fee to the Agency
simultaneously with the December 31 semiannual status report in
accordance with 7 CFR part 4279, subpart B, Sec. 4279.107.
* * * * *
Dated: September 27, 2005.
Thomas C. Dorr,
Under Secretary, Rural Development.
[FR Doc. 05-19722 Filed 9-30-05; 8:45 am]
BILLING CODE 3410-XY-P