[Federal Register Volume 63, Number 79 (Friday, April 24, 1998)]
[Rules and Regulations]
[Pages 20295-20299]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-10902]



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  Federal Register / Vol. 63, No. 79 / Friday, April 24, 1998 / Rules 
and Regulations  

[[Page 20295]]


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DEPARTMENT OF AGRICULTURE

Rural Housing Service
Rural Business--Cooperative Service
Rural Utilities Service
Farm Service Agency

7 CFR Parts 1962, 1965, and 1980

RIN 0560-AE92


Subordination of Direct Loan Basic Security To Secure a 
Guaranteed Line of Credit

AGENCIES: Rural Housing Service, Rural Business--Cooperative Service, 
Rural Utilities Service, Farm Service Agency, USDA.

ACTION: Final rule.

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SUMMARY: This rule revises Farm Service Agency (FSA) regulations 
regarding loan security servicing in two ways that are intended to 
increase the use of subordinations to move direct farm loan program 
borrowers to the private sector. First, the Agency will allow 
subordinations of direct loan basic chattel and real estate security if 
necessary to secure a guaranteed operating line of credit. Second, this 
rule revises FSA farm loan regulations to allow subordination of Agency 
loan security so another lender may refinance a borrower's debt. This 
change is needed because recent legislation places restrictions on the 
uses of direct loans for refinancing.

EFFECTIVE DATE: The effective date of this rule is May 26, 1998.

FOR FURTHER INFORMATION CONTACT: Phillip Elder, Senior Loan Officer, 
United States Department of Agriculture, Farm Service Agency, Farm Loan 
Programs Loan Servicing Division, 1400 Independence Avenue, SW, STOP 
0523, Washington, D.C. 20250-0523. Telephone (202) 690-4012. Electronic 
mail: [email protected].

SUPPLEMENTARY INFORMATION:

Executive Order 12866

    This rule has been reviewed under E.O. 12866 and was determined to 
be not significant.

Executive Order 12372

    1. For the reasons set forth in the Notice related to 7 CFR part 
3015, subpart V (48 FR 29115, June 24, 1983), Farm Ownership Loans, 
Farm Operating Loans, and Emergency Loans are excluded from the scope 
of E.O. 12372, which requires intergovernmental consultation with state 
and local officials.
    2. The Soil and Water Loan Program is subject to and has met the 
provisions of E.O. 12372.

Federal Assistance Program

    These changes affect the following FSA programs as listed in the 
Catalog of Federal Domestic Assistance:

10.404--Emergency Loans
10.406--Farm Operating Loans
10.407--Farm Ownership Loans
10.416--Soil and Water Loans

Environmental Impact Statement

    It is the determination of the issuing agency that this action is 
not a major Federal action significantly affecting the environment. 
Therefore, in accordance with the National Environmental Policy Act of 
1969, Pub. L. 91-190, and 7 CFR part 1940, subpart G, an Environmental 
Impact Statement is not required.

Executive Order 12988

    This final rule has been reviewed in accordance with E.O. 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 to this rule; and 
(3) administrative proceedings in accordance with 7 CFR parts 11 and 
780 must be exhausted before bringing suit in court challenging action 
taken under this rule unless those regulations specifically allow 
bringing suit at an earlier time.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
602), the undersigned has determined and certified by signature of this 
document that this rule will not have a significant economic impact on 
a substantial number of small entities. This rule does not involve a 
new or expanded program and new provisions included in this rule will 
not impact a substantial number of small entities to a greater extent 
than large entities. Although it is the intent of this rule to move 
direct loans to guaranteed loans, participation is voluntary and 
requires no action on the part of small entities. Large entities are 
subject to these rules to the same extent as small entities. Therefore, 
a regulatory flexibility analysis was not performed.

Unfunded Mandates

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, requires Federal agencies to assess the effects of their 
regulatory actions on State, local, and tribal governments or the 
private sector. 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 of $100 million or 
more in any 1 year for State, local, or tribal governments, in the 
aggregate, or to the private sector. UMRA generally requires agencies 
to consider alternatives and adopt the more cost effective or least 
burdensome alternative that achieves the objectives of the rule.
    This rule contains no Federal mandates, as defined under 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 UMRA.

Paperwork Reduction Act

    The amendments to 7 CFR parts 1962, 1965 and 1980 set forth in this 
final rule require no revisions to the information collection 
requirements that were previously approved by OMB under the provisions 
of 44 U.S.C. chapter 35. A proposed rule containing an estimate of the 
burden impact of this rule was published on September 9, 1997 [62 FR 
47384, 47385]. No comments on the burden estimate were received.

Discussion of Comments Received

    The Agency received comments on the proposed rule (62 FR 47384-
47388) from five parties, including FSA employees, employee 
organizations, a commercial bank, and the American Banker's 
Association. All comments received were in support of the

[[Page 20296]]

proposed changes and recommended their adoption with a few 
clarifications.
    Two commenters suggested clarification of the excess security 
requirement proposed for Sec. 1980.108(a)(1)(vi)(A) or removal of the 
requirement entirely. This comment was seriously considered but not 
adopted. The Agency proposed to change its regulations to allow a 
combination guaranteed loan and subordination of direct loan security 
because lenders in selected areas of the country were reluctant to 
provide farmers with a line of credit secured only by planned crop 
production, even when the loan was 90 percent guaranteed against loss 
by the government. We understand from industry advocates that this 
reluctance is due to the large annual fluctuations in crop income 
experienced in those areas. Because the risk of loss on these lines of 
credit is inordinately large, as evidenced by the policies of the local 
lenders, the Agency felt it was necessary to restrict these combination 
subordination and guarantees to those direct loan borrowers whose loans 
are well secured in order to protect the Government's interest. 
However, the Agency has clarified this paragraph to require that the 
total unpaid balance of the direct loan be less than or equal to 75 
percent of the value of the security for the direct loan, excluding the 
value of growing crops and planned production at the time of the 
subordination. The Agency also clarified that a lender making the 
subject guaranteed loan is responsible for obtaining any appraisals 
necessary to document compliance with this provision.
    Two commenters also indicated confusion about proposed 
Sec. 1962.30(a)(3) and questioned the need for a separate provision for 
a subordination to purchase crop insurance. The Agency agrees. Since 
Sec. 1962.30(a)(2) allows a subordination for any authorized direct 
loan purpose and the payment of crop insurance premiums is an allowable 
use of direct operating loan funds, the Agency agrees that paragraph 
(a)(3) was redundant and has removed it accordingly.
    Another commenter pointed out that proposed Sec. 1965.12 needed to 
be clarified as to the allowable uses of Single Family Housing (SFH) 
loan funds. Since the proposed rule was drafted, the Rural Housing 
Service (RHS) promulgated new program regulations and is no longer 
covered by part 1965, subpart A. Since FSA employees are not 
responsible for servicing RHS loans, Sec. 1965.12(a)(9) has been 
removed. This regulation still allows a subordination to be made for 
the purpose of improving a farm residence in some instances under 
Sec. 1965.12(a)(1) as an authorized direct loan purpose. FSA will 
consider RHS debt with regard to subordinations as it would any other 
lien.
    The fourth comment received suggested that subordinations of direct 
loan basic real estate security to secure a guaranteed line of credit 
should be prohibited or very rare. This rule is being issued 
specifically to allow subordinations of real estate to secure a 
guaranteed loan. Regardless, the limitations included in 
Sec. 1980.108(a) will allow subordinations of direct loan basic 
security in only those cases where the likelihood of a Government loss 
on the direct loan is small.
    One commenter requested that the rule be revised to not require 
that the Agency loan be secured after the subordination, but rather to 
allow a subordination as long as the Agency's position is not damaged. 
This comment was not adopted. The condition mentioned by the commenter 
was not added as part of the proposed rule. Section 1965.12(a)(9) 
provides that the Agency loan must still be adequately secured after 
the subordination, or the value of the security will be increased by at 
least the amount of advances made under the subordination. Also, this 
requirement will not overly restrict the Agency's ability to make 
subordinations under the authorities provided in this rule.
    Another commenter suggested that the Agency require a formal 
application for a subordination. The Agency currently requires 
borrowers to submit a ``Request for Subordination, Release or 
Consent,'' to be considered for a subordination. Therefore, this 
comment was not adopted. However, the Agency agrees with the concerns 
of the commenter that subordinations are not sufficiently recorded or 
monitored. The Agency is exploring methods to improve its data on 
subordinations and expects its internal records system to be revised 
soon.
    Finally, a commenter suggested that the county committee not be 
required to make recommendations regarding subordinations. Proposed 
Sec. 1965.12(a)(10) required, ``When the subordination will be used to 
acquire land, the FSA county committee has made a favorable 
recommendation.'' We agree with the commenter that county committee 
concurrence with this loan servicing action is not necessary; 
therefore, this provision has been removed.
    In addition to these changes, the Agency has made several 
administrative changes to the proposed rule. First, the Agency has 
determined that in some instances an Agency subordination to allow the 
borrower to obtain a loan from the Rural Housing Service or the 
Commodity Credit Corporation may be prudent. Accordingly, the Agency 
has removed proposed Sec. 1962.30(b)(6) which prohibited subordinations 
to other USDA Agencies. The Agency will treat USDA agencies like other 
Federal Agencies for subordination purposes.
    Second, the Agency has removed proposed Sec. 1965.12(a)(3). This 
section conditioned a subordination on it furthering the purpose of the 
loan. A subordination is limited to eligible loan purposes; thus, this 
provision was redundant. Taken together with the other conditions under 
Sec. 1962.30 or 1965.12, any eligible loan purpose would further the 
objectives of the loan.
    Third, proposed Sec. 1965.12(a)(4) has been removed. The provision 
required FSA to obtain as security an assignment of the beneficial 
interest of any stock required in connection with a loan. This 
requirement was included in previous versions of this regulation 
because Farm Credit System (FCS) institutions required that a borrower 
purchase stock in the local association. Agency experience indicates 
that the assignment is unnecessary. The Farm Credit Administration 
(FCA) requires a minimum purchase of $1,000 or 1 percent of the loan 
amount. Local associations may require up to 5 percent of the loan 
amount, but most associations are requiring only the minimum stock 
purchase of $1,000. Consequently, the value of cooperative stock is 
negligible and does not impact the Agency's decision to grant a 
subordination. Besides, the treatment of the stock has no effect since 
it is invariably applied to the FCS loan when it is paid in full. 
Proceeds from the liquidation of a beneficial interest in a cooperative 
generally have not been applied to an Agency loan as a result of this 
requirement.
    Fourth, proposed Sec. 1965.12(e) has been added to clarify the 
appraisal requirements for a real estate security subordination.
    Fifth, paragraphs (b)(6) and (7) and (e) and (f) were added to 
section 1962.30 to make the chattel provisions consistent with the real 
estate provisions in section 1965.12. Section 1962.20(f) requires a 
chattel appraisal if the existing appraisal is more than 2 years old or 
inadequate for the FSA official to make a subordination determination 
under that section. The 2 year standard is consistent with current 
chattel appraisal requirements under Sec. 1941.25. Paragraphs (a)(10) 
and (11) were added

[[Page 20297]]

to section 1965.12 to make it consistent with section 1962.30.
    Sixth, section 1962.30(b)(2) was clarified and 1965.12(a)(10) was 
added to clarify that a subordination is provided to secure a specific 
loan to be made and that the loan is to be made as soon as practical 
after the subordination is granted. This change will clarify that a 
subordination is approved only for a limited period. This limitation is 
on the subordination form but is not currently contained in the 
regulation.
    Seventh, section 1980.108(a)(1)(iii) was revised to delete 
subordination provisions now covered by paragraph (a)(1)(v) of that 
section. The revision was inadvertently omitted from the proposed rule.
    Finally, the Agency has revised proposed Sec. 1980.108(a)(1)(v) to 
clarify that the conditions contained in Secs. 1962.30 and 1965.12 as 
appropriate apply when the Agency subordinates its security interest in 
direct loan security when a guaranteed loan is being made. This change 
was made to allow removal of duplicative conditions under the 
guaranteed loan provision. Proposed Sec. 1980.108 (a)(1)(vi)(K) has 
been removed as unnecessary because the notification requirements of 
Secs. 1980.145 and 1980.146 of the same subpart require specific lender 
actions when a guaranteed loan becomes delinquent.

List of Subjects

7 CFR Part 1962

    Crops, Government property, Livestock, Loan programs--Agriculture, 
Rural areas.

7 CFR Part 1965

    Real property--Foreclosure, Loan programs--Agriculture, Rural 
areas.

7 CFR Part 1980

    General--Agriculture, Loan programs--Agriculture, EM.

    Accordingly, 7 CFR chapter XVIII is amended as follows:

PART 1962--PERSONAL PROPERTY

    1. The authority citation for part 1962 continues to read as 
follows:

    Authority: 5 U.S.C. 301; 7 U.S.C. 1989; 42 U.S.C. 1480.

Subpart A--Servicing and Liquidation of Chattel Security

    2. Section 1962.30 is revised to read as follows:


Sec. 1962.30  Subordination and waiver of liens on chattel security.

    (a) Purposes. Subject to the limitations set out in paragraph (b) 
of this section, the Agency chattel liens may be subordinated to a lien 
of another creditor in either of the following situations:
    (1) The prior lien will soon mature or has matured and the prior 
lienholder desires to extend or renew the obligation, or the obligation 
can be refinanced. The relative lien position of the Agency must be 
maintained; and
    (2) The subordination will permit another creditor to refinance 
other debt or lend for an authorized direct loan purpose.
    (b) Conditions. Agency chattel liens may be subordinated to a lien 
of another creditor if all of the following conditions are met:
    (1) If the lien is on basic chattel security, the amount of 
subordination is necessary to provide the lender with the security it 
requires to make the loan;
    (2) Approval of a subordination is limited to a specific amount and 
the loan to be secured by the subordination is closed within a 
reasonable time;
    (3) Only one subordination to one creditor may be outstanding at 
any one time in connection with the same security;
    (4) The borrower has not been convicted of planting, cultivating, 
growing, producing, harvesting or storing a controlled substance under 
Federal or state law. ``Borrower'' for purposes of this provision, 
specifically includes an individual or entity borrower and any member 
stockholder, partner, or joint operator, of an entity borrower and any 
member, stockholder, partner, or joint operator of an entity borrower. 
``Controlled substance'' is defined at 21 CFR part 1308. The borrower 
will be ineligible for a subordination for the crop year in which the 
conviction occurred and the four succeeding crop years. Applicants must 
attest on the Agency application form that it and its members, if an 
entity, have not been convicted of such a crime;
    (5) The loan funds will not be used in such a way that will 
contribute to erosion of highly erodible land or conversion of wetlands 
for the production of an agricultural commodity according to subpart G 
of part 1940 of this chapter;
    (6) The borrower can document the ability to repay the total amount 
due under the subordination and pay all other debt payments scheduled 
for the subject operating cycle; and
    (7) The Agency loan is still adequately secured after the 
subordination, or the value of the loan security will be increased by 
at least the amount of the advances to be made under the terms of the 
subordination.
    (c) Subordination to make a guaranteed loan. In addition to the 
requirements of this section, subordinations on chattel security to 
make a guaranteed loan will be approved in accordance with 
Sec. 1980.108 of subpart B of part 1980 of this chapter.
    (d) Forms. Subordinations will be requested and executed on Agency 
forms available in any Agency office or on any other form approved by 
the Agency.
    (e) Rescheduling of existing Agency debts. The Agency may consent 
to rescheduling of an existing Agency debt when a subordination is 
granted to the debt of another lender. The rescheduling will be allowed 
only when the borrower cannot reasonably be expected to meet all 
currently scheduled installments when due and the conditions of subpart 
S of part 1951 of this chapter are met.
    (f) Appraisal. The Agency will prepare a chattel appraisal report 
when the existing appraisal report is more than 2 years old or is 
inadequate to make the determination in this section. The Agency may 
use an appraisal submitted by the borrower if it is substantially 
similar to Form RD 440-21, ``Appraisal of Chattel Property,'' and 
prepared by a licensed appraiser.

PART 1965--REAL PROPERTY

    3. The authority citation for part 1965 continues to read as 
follows:

    Authority: 5 U.S.C. 301; 7 U.S.C. 1989 and 42 U.S.C. 1480.

Subpart A--Servicing of Real Estate Security for Farmer Program 
Loans and Certain Note-Only Cases

    4. Section 1965.12 is revised to read as follows:


Sec. 1965.12  Subordination of an Agency mortgage.

    (a) Conditions. A subordination may be granted if all of the 
following conditions are met:
    (1) The subordination is to refinance debt or for an authorized 
direct loan purpose;
    (2) The Agency debt cannot be refinanced without a subordination;
    (3) The borrower can document the ability to repay the total amount 
due under subordination and pay all other debt payments scheduled for 
the subject operating cycle;
    (4) The loan funds will not be used in such a way that will 
contribute to erosion of highly erodible land or conversion of wetlands 
for the production of an agricultural commodity according to subpart G 
of part 1940 of this chapter;

[[Page 20298]]

    (5) Any planned development is performed in a manner directed by 
the creditor and agreed to by the Agency and reasonably attains the 
objectives of subpart A of part 1924 of this chapter;
    (6) Funds to be used to develop or to acquire land will be 
deposited in a supervised bank account that is subject to signature by 
the Agency and the borrower, or in a similar arrangement, to ensure 
that funds will be spent for the planned purposes;
    (7) In cases of land purchase or exchange of property, the Agency 
will obtain a valid mortgage on the acquired land. Title clearance and 
loan closing will be required as for an initial or subsequent FO loan, 
as appropriate;
    (8) The borrower has not been convicted of planting, cultivating, 
growing, producing, harvesting or storing a controlled substance under 
Federal or state law. ``Borrower'' for purposes of this provision, 
specifically includes an individual or entity borrower and any member 
stockholder, partner, or joint operator, of an entity borrower and any 
member, stockholder, partner, or joint operator of an entity borrower. 
``Controlled substance'' is defined at 21 CFR part 1308. The borrower 
will be ineligible for a subordination for the crop year in which the 
conviction occurred and the four succeeding crop years. An applicant 
must attest on the Agency application form that it and its members, if 
an entity, have not been convicted of such a crime;
    (9) The Agency loan is still adequately secured after the 
subordination, or the value of the loan security will be increased by 
at least the amount of the advances to be made under the terms of the 
subordination;
    (10) The subordination is limited to a specific amount and the loan 
to be secured by the subordination is closed within a reasonable time; 
and
    (11) Only one subordination to one creditor may be outstanding at 
any one time in connection with the same security.
    (b) Subordination on real estate owned by an entity member. 
Notwithstanding the provisions of paragraph (a) of this section, when 
the borrower is an entity and the Agency has taken real estate as 
additional security on property owned by an entity member, a 
subordination for any authorized Farm Loan Programs loan purpose may be 
approved when it is needed for the entity member to finance a separate 
operation. The subordination, however, may be approved only if it does 
not cause the unpaid principal and accrued interest balance of the 
Agency loan to exceed the value of the loan security or otherwise 
adversely affect the security.
    (c) Request for subordination. A borrower must complete an 
application provided by the Agency to receive consideration for a 
subordination.
    (d) Notice of foreclosure. The lienholder requesting the 
subordination will agree to give notice of foreclosure as required by 
the Agency.
    (e) Appraisal. The Agency will prepare a current appraisal report 
in accordance with part 1922, subpart E, of this chapter when property 
is to be purchased or exchanged, or when the existing appraisal report 
is more than 1 year old or is inadequate to make the determination 
required in this section. The Agency may use the appraisal report 
prepared for another lender if it complies with the requirements of 
subpart E of part 1922 of this chapter.
    (f) Reamortizing existing Agency debts. The Agency may consent to a 
reamortization of an existing Agency debt when a subordination is 
granted to the debt of another lender. The reamortization will be 
allowed only when the borrower cannot reasonably be expected to meet 
all currently scheduled installments when due and the conditions of 
subpart S of part 1951 of this chapter are met.
    (g) Subordination to make a guaranteed loan. In addition to the 
requirements of this section, subordinations of liens on real estate 
security to make a guaranteed loan will be approved in accordance with 
Sec. 1980.108 of this chapter.

PART 1980--GENERAL

    5. The authority citation for part 1980 continues to read as 
follows:

    Authority: 5 U.S.C. 301; 7 U.S.C. 1989 and 42 U.S.C. 1480

Subpart B--Farmer Programs Loans

    6. Section 1980.108 is amended to add paragraphs (a)(1)(v) and 
(a)(1)(vi), and to revise paragraphs (a)(1)(iii) and (d) to read as 
follows:


Sec. 1980.108  General provisions.

    (a) * * *
    (1) * * *
    (iii) When the Agency and the lender are involved in separate loans 
to the same borrower, separate collateral must be clearly identified 
for both the Agency's loan and the lender's loan. Different lien 
positions on real estate are considered separate collateral.
* * * * *
    (v) The Agency may subordinate its security interest on a direct 
loan when a guaranteed loan is being made if the requirements of 
Sec. 1962.30 or Sec. 1965.12 of this chapter, as appropriate, are met 
and only in any the following circumstances:
    (A) To permit a guaranteed lender to advance funds and perfect a 
security interest in crops, feeder livestock, or livestock products, 
(milk, eggs, wool, etc.);
    (B) When the lender requesting the guarantee needs the 
subordination of the Agency's lien position to maintain its lien 
position when servicing or restructuring;
    (C) When the lender requesting the guarantee is refinancing the 
debt of another lender, and the Agency's position on real estate 
security will not be adversely affected; or
    (D) To permit a Contract of Guarantee--Line of Credit to be 
advanced for annual operating needs in accordance with 
Sec. 1980.175(c)(2).
    (vi) The Agency may subordinate its security in a direct loan under 
paragraph (a)(1)(v)(D) of this section only when both of the following 
additional conditions are met:
    (A) The total unpaid balance of the direct loan is less than or 
equal to 75 percent of the value of the security for the direct loan, 
excluding the value of growing crops or planned production, at the time 
of the subordination. This direct loan security value shall be 
determined by an appraisal that complies with subpart E of part 1922 of 
this chapter. This appraisal will be provided by the lender requesting 
the guarantee. The lender may charge the applicant a reasonable fee for 
the appraisal.
    (B) The applicant cannot obtain sufficient credit through a 
conventional guaranteed loan.
* * * * *
    (d) Relationship between Agency loans, direct and guaranteed. A 
guaranteed FO or OL loan may be made to an insured borrower with the 
same type of direct loan provided:
    (1) The outstanding combined direct and guaranteed FO or OL 
principal balance owed by the loan applicant or owed by anyone who will 
sign the note as cosigner may not exceed the authorized guaranteed loan 
limit for that type of loan; and
    (2) Chattel and real estate collateral must be separate and 
identifiable so as to be discernible from the collateral pledged to the 
Agency for a direct loan. Different lien positions on real estate are 
considered separate and identifiable collateral.
    7. Section 1980.175 is amended to add paragraph (h)(3) as follows:


Sec. 1980.175  Operating loans.

* * * * *

[[Page 20299]]

    (h) * * *
    (3) Subject to the requirements of this section, the Agency may 
approve a Contract of Guarantee for a line of credit to be secured by 
basic chattel or real estate security in which the Agency has 
subordinated its lien position in accordance with Sec. 1980.108.
* * * * *
    Signed in Washington, D.C., on April 10, 1998.
August Schumacher, Jr.,
Under Secretary, Farm and Foreign Agricultural Services.
    Dated: April 10, 1998.
Jill Long Thompson,
Under Secretary, Rural Development.
[FR Doc. 98-10902 Filed 4-23-98; 8:45 am]
BILLING CODE 3410-05-U