[Federal Register Volume 64, Number 240 (Wednesday, December 15, 1999)]
[Proposed Rules]
[Pages 69946-69962]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-31367]


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DEPARTMENT OF AGRICULTURE

Rural Utilities Service

7 CFR Part 1744

RIN 0572-AB53


Post-Loan Policies and Procedures Common to Guaranteed and 
Insured Loans

AGENCY: Rural Utilities Service, USDA.

ACTION: Proposed rule.

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SUMMARY: Recent changes in the telecommunications industry, including 
deregulation and technological developments, have caused Rural 
Utilities Service (RUS) borrowers and other organizations providing 
telecommunications services to consider undertaking projects that 
provide new telecommunications services and other telecommunications 
services not ordinarily financed by RUS. The ability of 
telecommunications providers to compete in an expanding number of 
telecommunications services may be critical to their financial strength 
and stability. Although some of these services may not be eligible for 
financing under the Rural Electrification Act of 1936 (RE Act), these 
services may nevertheless advance RE Act objectives where the borrower 
obtains financing from private lenders. Rural subscribers will be the 
beneficiaries of these services and, overall, the borrowers' financial 
strength and the assurance of repayment of outstanding Government debt 
will be improved as a result of providing such telecommunications 
services. To facilitate the financing of those services, RUS is willing 
to consider accommodating the Government's lien on telecommunications 
borrowers' systems or subordinating the Government's lien on after-
acquired property of telecommunications borrowers.

DATES: Written comments on this proposed rule must be received by RUS 
or carry a postmark or equivalent by February 14, 2000.

ADDRESSES: Written comments should be addressed to Roberta D. Purcell, 
Assistant Administrator, Telecommunications Program, Rural

[[Page 69947]]

Utilities Service, U.S. Department of Agriculture, 1400 Independence 
Avenue, SW., STOP 1590, Room 4056, South Building, Washington, DC 
20250-1590. RUS requests a signed original and three copies of all 
comments (7 CFR part 1700). All comments received will be made 
available for public inspection at room 4056, South Building, 
Washington, DC, between 8 a.m. and 4 p.m. (7 CFR part 1.27(b)). 
Telephone number (202) 720-9554.

FOR FURTHER INFORMATION CONTACT: Jonathan P. Claffey, Deputy Assistant 
Administrator, Telecommunications Program, Rural Utilities Service, 
U.S. Depatment of Agriculture, 1400 Independence Avenue, SW., STOP 
1590, Room 4056, Washington, DC 20250-1590. Telephone number (202) 720-
9556.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

    This rule has been determined to be not significant for purposes of 
Executive Order 12866 and therefore has not been reviewed by the Office 
of Management and Budget (OMB).

Executive Order 12372

    This rule is excluded from the scope of Executive Order 12372, 
Intergovernmental Consultation, which may require a consultation with 
State and local officials. A final rule related Notice entitled, 
``Department Programs and Activities Excluded from Executive Order 
12372'' (50 FR 47034) exempts RUS and Rural Telephone Bank loans and 
loan guarantees from coverage under this Order.

Executive Order 12988

    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. RUS has determined that this rule meets the applicable 
standards provided in section 3 of the Executive Order. In addition, 
all State and local laws and regulations that are in conflict with this 
rule will be preempted, no retroactive effort will be given to this 
rule, and, in accordance with Sec. 212(e) of the Department of 
Agriculture Reorganization Act of 1994 (7 U.S.C. Sec. 6912(e)), 
administrative appeal procedures, if any, must be exhausted before an 
action against the Department or its agencies may be initiated.

Regulatory Flexibility Act Certification

    RUS has determined that this proposed rule will not have a 
significant economic impact on a substantial number of small entities, 
as defined in the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The RUS telecommunications program provides loans to borrowers at 
interest rates and on terms that are more favorable than those 
generally available from the private sector. RUS borrowers, as a result 
of obtaining federal financing, receive economic benefits that exceed 
any direct economic costs associated with complying with RUS 
regulations and requirements.

Information Collection and Recordkeeping Requirements

    This rule contains no new reporting or recordkeeping burdens under 
OMB control number 0572-0079 that would require approval under the 
Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).

National Environmental Policy Act Certification

    The Administrator of RUS has determined that this proposed rule 
will not significantly affect the quality of the human environment as 
defined by the National Environmental Policy Act of 1969 (42 U.S.C. 
4321 et seq.). Therefore, this action does not require an environmental 
impact statement or assessment.

Catalog of Federal Domestic Assistance

    The program described by this proposed rule is listed in the 
Catalog of Federal Domestic Assistance Programs under number 10.851, 
Rural Telephone Loans and Loan Guarantees; and number 10.852, Rural 
Telephone Bank Loans. This catalog is available on a subscription basis 
from the Superintendent of Documents, the United States Government 
Printing Office, Washington, DC 20402-9325.

Unfunded Mandates

    This rule contains no Federal mandates (under the regulatory 
provisions of Title II of the Unfunded Mandates Reform Act of 1995) for 
State, local, and tribal governments or the private sector. Thus, this 
rule is not subject to the requirements of section 202 and 205 of the 
Unfunded Mandates Reform Act of 1995.

Background

    RUS is proposing to amend its regulations covering lien 
accommodations under certain circumstances where the borrower's 
financial strength is sufficient to protect security for the 
Government's loans and the lender seeking a lien accommodation.
    Since the passage of the Telecommunications Act of 1996, which 
provides for a competitive, deregulated national telecommunications 
policy framework, the Federal Communications Commission (FCC) has been 
working to implement the provisions of the new law. As those provisions 
begin to be integrated through the FCC's rulemaking process, the FCC is 
focusing on the types of telecommunications service that must be made 
available to all Americans; i.e. part of universal service, and the 
benefits to all Americans from advanced services for schools, 
libraries, and rural health care providers. The newly competitive 
environment will undoubtedly affect the rural telecommunications 
marketplace. For the industry as a whole--urban and rural--competition 
will offer the means for delivering the universal service concept 
envisioned by the Telecommunications Act of 1996. In the competitive 
marketplace of the future, investment in infrastructure will be 
lucrative in markets where local exchange carriers seek to attract 
high-usage, low-cost subscribers. Competition will be fierce and 
customers will be the winners as their demands for new and improved 
service at affordable rates will be met. Yet in rural and high-cost 
areas, where quality of service and advanced service offerings are just 
as important, there is less potential for investment based on 
competition. Investment will need to be encouraged in the form of 
incentives through the universal support mechanisms and the lending 
programs of RUS, as well as private sources of financing. RUS will 
continue its partnership with rural America to ensure that 
telecommunications providers will have the means to modernize their 
networks; however, industry deregulation and new technological 
developments have caused RUS borrowers and other organizations 
providing telecommunications services to consider undertaking projects 
that provide new telecommunications services and other 
telecommunications services not ordinarily financed by RUS. Although 
some of these services may not be eligible for financing under the 
Rural Electrification Act of 1936 (RE Act), these services may 
nevertheless advance RE Act objectives where the borrower obtains 
financing from private lenders.
    Due to the changing environment of the telecommunications industry, 
large or predominately non-rural local exchange carriers (LECs) are 
selling their more rural exchanges in order to concentrate on their 
more lucrative service areas. This ``sell-off'' provides an opportunity 
for rural LECs to expand their service territories. Typically, these 
acquired exchanges will need

[[Page 69948]]

infrastructure improvements and the rural LECs will work hard to 
provide state-of-the-art service. This will require increased 
investment. RUS loans for infrastructure building can enable rural LECs 
to upgrade plant and service territories that may have been neglected 
for years. All subscribers, urban and rural, benefit from improvements 
to the national network. While opportunities exist for rural LECs to 
expand their markets and continue the tradition of providing the best 
possible service available to rural residents, uncertainties regarding 
future revenue streams and the availability of funds from universal 
service support may hamper some small LECs' investment decisions. The 
proposed amendments to this regulation will help to facilitate funding 
from non-RUS sources in order to meet the growing capital needs of 
rural LECs. Depending on the purposes for which a lien accommodation is 
being sought, RUS will provide ``automatic'' approval for borrowers 
that meet the financial tests described in this rule. RUS believes that 
borrowers that are financially sound should be afforded more 
flexibility with regard to financial arrangements with outside lenders 
for the purpose of promoting rural telecommunications. The tests are 
designed to ensure that the financial strength of the borrower is more 
than sufficient to protect the government's loan security interests; 
hence, the lien accommodations will not adversely affect the 
government's financial interests.
    In addition to providing for automatic lien accommodations, this 
amendment will remove the requirement for borrowers seeking lien 
accommodations to comply with competitive bid procedures under 7 CFR 
part 1753. Further, RUS proposes to address other concerns involved in 
the accommodation of the Government's lien for those borrowers that do 
not qualify for an automatic lien accommodation in a subsequent 
revision to this subpart.

List of Subjects in 7 CFR Part 1744

    Accounting, Loan programs--communications, Reporting and 
recordkeeping requirements, Rural areas, Telephone.

    For reasons set out in the preamble, RUS proposes to amend 7 CFR 
chapter XVII as follows:

PART 1744--POST-LOAN POLICIES AND PROCEDURES COMMON TO GUARANTEED 
AND INSURED TELEPHONE LOANS

    1. The authority citation for part 1744 is revised to read as 
follows:

    Authority: 7 U.S.C. 901 et seq., 1921 et. seq., and 6941 et seq.

    2. Sections 1744.20 and 1744.21 are revised to read as follows:

Subpart B--Lien Accommodations and Subordination Policy


Sec. 1744.20  General.

    (a) Recent changes in the telecommunications industry, including 
deregulation and technological developments, have caused Rural 
Utilities Service (RUS) borrowers and other organizations providing 
telecommunications services to consider undertaking projects that 
provide new telecommunications services and other telecommunications 
services not ordinarily financed by RUS. Although some of these 
services may not be eligible for financing under the Rural 
Electrification Act of 1936 (RE Act), these services may nevertheless 
advance RE Act objectives where the borrower obtains financing from 
private lenders. The borrower's financial strength and the assurance of 
repayment of outstanding Government debt may be improved as a result of 
providing such telecommunications services.
    (b) To facilitate the financing of new services and other services 
not ordinarily financed by RUS, RUS is willing to consider 
accommodating the Government's lien on telecommunications borrowers' 
systems or accommodating or subordinating the Government's lien on 
after-acquired property of telecommunications borrowers. To expedite 
this process, requests for lien accommodations meeting the requirements 
of Sec. 1744.30 will receive automatic approval from RUS.
    (c) This subpart sets forth RUS policy with respect to all requests 
for lien accommodations and subordinations for loans from private 
lenders. For borrowers that do not qualify for automatic lien 
accommodations in accordance with Sec. 1744.30, RUS will consider lien 
accommodations for RE Act purposes under Sec. 1744.40 and non-Act 
purposes under Sec. 1744.50.


Sec. 1744.21  Definitions.

    The following definitions apply to this subpart:
    Administrator means the Administrator of RUS and includes the 
Governor of the RTB.
    Advance means transferring funds from RUS, RTB, or a lender 
guaranteed by RUS to the borrower's construction fund.
    After-acquired property means property which is to be acquired by 
the borrower and which would be subject to the lien of the Government 
mortgage when acquired.
    Amortization expense means the sum of the balances of the following 
accounts of the borrower:

------------------------------------------------------------------------
                        Account names                             No.
------------------------------------------------------------------------
(1) Amortization expense.....................................     6560.2
(2) Amortization expense--tangible...........................     6563
(3) Amortization expense--intangible.........................     6564
(4) Amortization expense--other..............................    6565
------------------------------------------------------------------------
Note: All references to account numbers are to the Uniform System of
  Accounts (7 CFR part 1770, subpart B).

    Asset means a future economic benefit obtained or controlled by the 
borrower as a result of past transactions or events.
    Automatic lien accommodation means the approval, by RUS, of a 
request to share the Government's lien on a pari passu or pro-rata 
basis with a private lender in accordance with the provisions of 
Sec. 1744.30.
    Borrower means any organization that has an outstanding 
telecommunications loan made or guaranteed by RUS, or that is seeking 
such financing. See 7 CFR part 1735.
    Construction Fund means the RUS Construction Fund Account into 
which all advances of loan funds are deposited pursuant to the 
provisions of the loan documents.
    Debt Service Coverage (DSC) ratio means the ratio of the sum of the 
borrower's net income, depreciation and amortization expense, and 
interest expense, all divided by the sum of all payments of principal 
and interest required to be paid by the borrower during the year on all 
its debt from any source with a maturity greater than 1 year and 
capital lease obligations.
    Default means any event or occurrence which, unless corrected, will 
with the passage of time and the giving of proper notices give rise to 
remedies under one or more of the loan documents.
    Depreciation expense means the sum of the balances of the following 
accounts of the borrower:

[[Page 69949]]



------------------------------------------------------------------------
                        Account names                             No.
------------------------------------------------------------------------
(1) Depreciation expense.....................................     6560.1
(2) Depreciation expense--telecommunications plant in service     6561
(3) Depreciation expense--property held for future               6562
 telecommunications use......................................
------------------------------------------------------------------------
Note: All references to account numbers are to the Uniform System of
  Accounts (7 CFR part 1770, subpart B).

    Disbursement means a transfer of money by the borrower out of the 
construction fund in accordance with the provisions of the fund.
    Equity percentage means the total equity or net worth of the 
borrower expressed as a percentage of the borrower's total assets.
    FFB means the Federal Financing Bank.
    Financial Requirement Statement (FRS) means RUS Form 481 (OMB--No. 
0572-0023). (This RUS Form is available from RUS, Program Development 
and Regulatory Analysis, Washington, DC 20250-1522.)
    Government mortgage means any instrument to which the Government, 
acting through the Administrator, is a party and which creates a lien 
or security interest in the borrower's property in connection with a 
loan made or guaranteed by RUS whether the Government is the sole 
mortgagee or is a co-mortgagee with a private lender.
    Hardship loan means a loan made by RUS under section 305(d)(1) of 
the RE Act.
    Interim construction means the purchase of equipment or the conduct 
of construction under an RUS-approved plan of interim financing. See 7 
CFR part 1737.
    Interest expense means the sum of the balances of the following 
accounts of the borrower:

------------------------------------------------------------------------
                     Account names                             No.
------------------------------------------------------------------------
(1) Interest and related items.........................           7500
(2) Interest on funded debt............................           7510
(3) Interest expense--capital leases...................           7520
(4) Amortization of debt issuance expense..............           7530
(5) Less Allowance for funds used during construction..      7340/7300.4
(6) Other interest deductions..........................          7540
------------------------------------------------------------------------
Note: All references to account numbers are to the Uniform System of
  Accounts (7 CFR part 1770, subpart B).

    Interim financing means funding for a project which RUS has 
acknowledged may be included in a loan, should said loan be approved, 
but for which RUS loan funds have not yet been made available.
    Lien accommodation means sharing the Government's lien on a pari 
passu or pro-rata basis with a private lender.
    Loan means any loan made or guaranteed by RUS.
    Loan documents means the loan contract, note and mortgage between 
the borrower and RUS and any associated document pertinent to a loan.
    Loan funds means the proceeds of a loan made or guaranteed by RUS.
    Material and supplies means any of the items properly recordable in 
the following account of the borrower:

------------------------------------------------------------------------
                        Account names                             No.
------------------------------------------------------------------------
(1) Material and Supplies....................................   1220.1
------------------------------------------------------------------------
Note: All references to account numbers are to the Uniform System of
  Accounts (7 CFR part 1770, subpart B).

    Net income/Net margins means the sum of the balances of the 
following accounts of the borrower:

------------------------------------------------------------------------
          Account names                             No.
------------------------------------------------------------------------
(1) Local Network Services        5000 through 5069.
 Revenues.
(2) Network Access Services       5080 through 5084.
 Revenues.
(3) Long Distance Network         5100 through 5169.
 Services Revenues.
(4) Miscellaneous Revenues......  5200 through 5270.
(5) Nonregulated Revenues.......  5280.
(6) Less Uncollectible Revenues.  5200 through 5302.
(7) Less Plant Specific           6110 through 6441.
 Operations Expense.
(8) Less Plant Nonspecific        6510 through 6565.
 Operations Expense.
(9) Less Customer Operations      6610 through 6623.
 Expense.
(10) Less Corporate Operations    6710 through 6790.
 Expense.
(11) Other Operating Income and   7100 through 7160.
 Expense.
(12) Less Operating Taxes.......  7200 through 7250/7200.5.
(13) Nonoperating Income and      7300 through 7370.
 Expense.
(14) Less Nonoperating Taxes....  7400 through 7450/7400.5.
(15) Less Interest and Related    7500 through 7540.
 Items.
(16) Extraordinary Items........  7600 through 7640/7600.4.
(17) Jurisdictional Differences   7910 through 7990.
 and Nonregulated Income Items.
------------------------------------------------------------------------
Note: All references to account numbers are to the Uniform System of
  Accounts (7 CFR part 1770, subpart B).

    Net plant means the sum of the balances of the following accounts 
of the borrower:

------------------------------------------------------------------------
          Account names                             No.
------------------------------------------------------------------------
(1) Property, Plant and           2001 through 2007.
 Equipment.
(2) Less Depreciation and         3100 through 3600.
 Amortization
------------------------------------------------------------------------
Note: All references to account numbers are to the Uniform System of
  Accounts (7 CFR part 1770, subpart B).

    Notes means evidence of indebtedness secured by or to be secured by 
the Government mortgage.
    Pari Passu means equably; ratably; without preference or 
precedence.
    Plant means any of the items properly recordable in the following 
accounts of the borrower:

[[Page 69950]]



------------------------------------------------------------------------
          Account names                             No.
------------------------------------------------------------------------
(1) Property, Plant and           2001 through 2007.
 Equipment.
------------------------------------------------------------------------
Note: All references to account numbers are to the Uniform System of
  Accounts (7 CFR part 1770, subpart B).

    Private lender means any lender other than the RUS or the lender of 
a loan guaranteed by RUS.
    Private lender notes means the notes evidencing a private loan.
    Private loan means any loan made by a private lender.
    RE Act (Act) means the Rural Electrification Act of 1936 (7 U.S.C. 
901 et seq.)
    RTB means the Rural Telephone Bank.
    RUS means the Rural Utilities Service, and includes its 
predecessor, the Rural Electrification Administration. The term also 
includes the RTB, unless otherwise indicated.
    RUS cost-of-money loan means a loan made under section 305(d)(2) of 
the RE Act.
    Subordination means allowing a private lender to have a lien on 
specific property which will have priority over the Government's lien 
on such property.
    Tangible plant means any of the items properly recordable in the 
following accounts of the borrower:

------------------------------------------------------------------------
          Account names                             No.
------------------------------------------------------------------------
(1) Telecommunications Plant in   2110 through 2124.
 Service--General Support Assets.
(2) Telecommunications Plant in   2210 through 2232.
 Service--Central Office Assets.
(3) Telecommunications Plant in   2310 through 2362.
 Service--Information
 Origination/Termination Assets.
(4) Telecommunications Plant in   2410 through 2441.
 Service--Cable and Wire
 Facilities Assets.
(5) Amortizable Tangible Assets   2680 through 2682.
(6) Nonoperating Plant..........  2006.
------------------------------------------------------------------------
Note: All references to account numbers are to the Uniform System of
  Accounts (7 CFR part 1770, subpart B).

    Telecommunication services means any service for the transmission, 
emission, or reception of signals, sounds, information, images, or 
intelligence of any nature by optical waveguide, wire, radio, or other 
electromagnetic systems and shall include all facilities used in 
providing such service as well as the development, manufacture, sale, 
and distribution of such facilities.
    Times interest earned ratio (TIER) means the ratio of the 
borrower's net income or net margins plus interest expense, divided by 
said interest expense.
    Total assets means the sum of the balances of the following 
accounts of the borrower:

------------------------------------------------------------------------
          Account names                             No.
------------------------------------------------------------------------
(1) Current Assets..............  1100s through 1300s.
(2) Noncurrent Assets...........  1400s through 1500s.
(3) Total telecommunications      2001 through 2007.
 plant.
(4) Less accumulated              3100 through 3300s.
 depreciation.
(5) Less accumulated              3400 through 3600s.
 amortization.
------------------------------------------------------------------------
Note: All references to account numbers are to the Uniform System of
  Accounts (7 CFR part 1770, subpart B).

    Total equity or net worth means the excess of a borrower's total 
assets over its total liabilities.
    Total liabilities means the sum of the balances of the following 
accounts of the borrower:

------------------------------------------------------------------------
          Account names                             No.
------------------------------------------------------------------------
(1) Current Liabilities.........  4010 through 4130.2.
(2) Long-Term Debt..............  4210 through 4270.3.
(3) Other Liabilities and         4310 through 4370.
 Deferred Credits.
------------------------------------------------------------------------
Note: All references to account numbers are to the Uniform System of
  Accounts (7 CFR part 1770, subpart B).

    Total long-term debt means the sum of the balances of the following 
accounts of the borrower:

------------------------------------------------------------------------
          Account names                             No.
------------------------------------------------------------------------
(1) Long-Term Debt..............  4210 through 4270.3
------------------------------------------------------------------------
Note: All references to account numbers are to the Uniform System of
  Accounts (7 CFR part 1770, subpart B).

    Weighted-average life of the loans or notes means the average life 
of the loans or notes based on the proportion of original loan 
principal paid during each year of the loans or notes. It shall be 
determined by calculating the sum of all loan or note principal 
payments expressed as a fraction of the original loan or note principal 
amount, times the number of years and fractions of years elapsed at the 
time of each payment since issuance of the loan or note. For example, 
given a $5 million loan, with a maturity of 5 years and equal principal 
payments of $1 million due on the

[[Page 69951]]

anniversary date of the loan, the weighted-average life would be: 
(.2)(1 year) + (.2)(2 years) + (.2)(3 years) + (.2)(4 years) + (.2)(5 
years) = .2 years + .4 years + .6 years + .8 years + 1.0 years = 3.0 
years. If instead the loan had a balloon payment of $5 million at the 
end of 5 years, the weighted-average life would be: ($5 million/$5 
million)(5 years) = 5 years.
    Weighted-average remaining life of the loans or notes means the 
remaining average life of the loans or notes based on the proportion of 
remaining loan or note principal expressed in years remaining to 
maturity of the loans or notes. It shall be determined by calculating 
the sum of the remaining principal payments of each loan or note 
expressed as a fraction of the total remaining loan or note amounts 
times the number of years and fraction of years remaining until 
maturity of the loan or note.
    Weighted-average remaining useful life of the assets means the 
estimated original average life of the assets to be acquired with the 
proceeds of the private lender notes expressed in years based on 
depreciation rates less the number of years those assets have been in 
service (or have been depreciated). It shall be determined by 
calculating the sum of each asset's remaining value expressed as a 
fraction of the total remaining value of the assets, times the 
estimated number of years and fraction of years remaining until the 
assets are fully depreciated.
    Wholly-owned subsidiary means a corporation owned 100 percent by 
the borrower.
    3. Sections 1744.30, 1744.40, and 1744.50 are redesignated as 
Secs. 1744.40, 1744.50, and 1744.55, respectively.
    4. New section 1744.30 is added to read as follows:


Sec. 1744.30  Automatic lien accommodations.

    (a) Purposes and requirements for approval. Automatic lien 
accommodations are available only for refinancing and refunding of 
notes secured by the borrower's existing Government mortgage; financing 
assets, to be owned by the borrower, to provide telecommunications 
services; or financing assets, to be owned by a wholly-owned subsidiary 
of the borrower, to provide telecommunications services in accordance 
with the procedures set forth below.
    (b) Private lender responsibility. The private lender is 
responsible for ensuring that its notes, for which an automatic lien 
accommodation has been approved as set forth in this section are 
secured under the mortgage. The private lender is responsible for 
ensuring that the supplemental mortgage is a valid and binding 
instrument enforceable in accordance with its terms, and recorded and 
filed in accordance with applicable law. If the private lender 
determines that additional documents are required or that RUS must take 
additional actions to secure the notes under the mortgage, the private 
lender shall follow the procedures set forth in Sec. 1744.40 or 
Sec. 1744.50, as appropriate.
    (c) Refinancing and refunding. The Administrator will automatically 
approve a borrower's execution of private lender notes and the securing 
of such notes on a pari passu or pro-rata basis with all other notes 
secured under the Government mortgage, when such private lender notes 
are issued for the purpose of refinancing or refunding any notes 
secured under the Government mortgage, provided that all of the 
following conditions are met:
    (1) No default has occurred and is continuing under the Government 
mortgage;
    (2) The borrower has delivered to the Administrator, at least 10 
business days before the private lender notes are to be executed, a 
certification and agreement executed by the President of the borrower's 
Board of Directors, such certification and agreement to be 
substantially in the form set forth in Appendix A of this subpart, 
providing that:
    (i) No default has occurred and is continuing under the Government 
mortgage;
    (ii) The principal amount of such refinancing or refunding notes 
will not be greater than 105 percent of the then outstanding principal 
balance of the notes being refinanced or refunded;
    (iii) The weighted-average life of the private loan evidenced by 
the private lender notes will not exceed the weighted-average remaining 
life of the notes being refinanced or refunded;
    (iv) The private lender notes will provide for substantially level 
debt service or level principal amortization over a period not less 
than 5 years;
    (v) Except as provided in the Government mortgage, the borrower has 
not agreed to any restrictions or limitations on future loans from RUS; 
and
    (vi) If the private lender determines that a supplemental mortgage 
is necessary, the borrower will comply with those procedures set forth 
in paragraph (h) of this section for the preparation, execution, and 
delivery of a supplemental mortgage and take such additional action as 
may be required to secure the notes under the Government mortgage.
    (d) Financing assets to be owned directly by a borrower. The 
Administrator will automatically approve a borrower's execution of 
private lender notes and the securing of such notes on a pari passu or 
pro-rata basis with all other notes secured under the Government 
mortgage, when such private lender notes are issued for the purpose of 
financing the purchase or construction of plant and material and 
supplies to provide telecommunication services and when such assets are 
to be owned and the telecommunications services are to be offered by 
the borrower, provided that all of the following conditions are met:
    (1) The borrower has achieved a TIER of not less than 1.5 and a DSC 
of not less than 1.25 for each of the borrower's two fiscal years 
immediately preceding the issuance of the private lender notes;
    (2) The ratio of the borrower's net plant to its total long-term 
debt at the end of any calendar month ending not more than 90 days 
prior to execution of the private lender notes is not less than 1.2, on 
a pro-forma basis, after taking into account the effect of the private 
lender notes on the total long-term debt of the borrower;
    (3) The borrower's equity percentage, as of the most recent fiscal 
year-end, was not less than 25 percent;
    (4) No default has occurred and is continuing under the Government 
mortgage;
    (5) The borrower has delivered to the Administrator, at least 10 
business days before the private lender notes are to be executed, a 
certification by an independent certified public accountant that the 
borrower has met each of the requirements in paragraphs (d)(1) and 
(d)(3) of this section, such certification to be substantially in the 
form in Appendix B of this subpart; and
    (6) The borrower has delivered to the Administrator, at least 10 
business days before the private lender notes are to be executed, a 
certification and agreement executed by the President of the borrower's 
Board of Directors, such certification and agreement to be 
substantially in the form in Appendix C of this subpart: provided, 
that:
    (i) The borrower has met each of the requirements in paragraphs 
(d)(2) and (d)(4) of this section;
    (ii) The proceeds of the private lender notes are to be used for 
the construction or purchase of the plant and materials and supplies to 
provide telecommunications services in accordance with this section and 
such construction or purchase is expected to be completed not later 
than 4 years after execution of such notes;

[[Page 69952]]

    (iii) The weighted-average life of the private loan evidenced by 
the private lender notes does not exceed the weighted-average remaining 
useful life of the assets being financed;
    (iv) The private lender notes will provide for substantially level 
debt service or level principal amortization over a period not less 
than 5 years;
    (v) All of the assets financed by the private loans will be 
purchased or otherwise procured in bona fide arm's length transactions;
    (vi) The financing agreement with the private lender will provide 
that the private lender shall cease the advance of funds upon receipt 
of written notification from RUS that the borrower is in default under 
the RUS loan documents;
    (vii) Except as provided in the Government mortgage, the borrower 
has not agreed to any restrictions or limitations on future loans from 
RUS; and
    (viii) If the private lender determines that a supplemental 
mortgage is necessary, the borrower will comply with those procedures 
set forth in paragraph (h) of this section for the preparation, 
execution, and delivery of a supplemental mortgage and take such 
additional action as may be required to secure the notes under the 
Government mortgage.
    (e) Financing assets to be owned by a wholly-owned subsidiary of 
the borrower. The Administrator will automatically approve a borrower's 
execution of private lender notes and the securing of such notes on a 
pari passu or pro-rata basis with all other notes secured under the 
Government mortgage, when such private lender notes are issued for the 
purpose of financing the purchase or construction of tangible plant and 
material and supplies to provide telecommunication services and when 
such services are to be offered and the associated tangible assets are 
to be owned by a wholly-owned subsidiary of the borrower, provided that 
all of the following conditions are met:
    (1) The borrower has achieved a TIER of not less than 2.5 and a DSC 
of not less than 1.5 for each of the borrower's two fiscal years 
immediately preceding the issuance of the private lender notes;
    (2) The ratio of the borrower's net plant to its total long-term 
debt at the end of any calendar month ending not more than 90 days 
prior to execution of the private lender notes is not less than 1.6, on 
a pro-forma basis, after taking into account the effect of the private 
lender notes on the total long-term debt of the borrower;
    (3) The borrower's equity percentage, as of the most recent fiscal 
year-end, was not less than 45 percent;
    (4) No default has occurred and is continuing under the Government 
mortgage;
    (5) The borrower has delivered to the Administrator, at least 10 
business days before the private lender notes are to be executed, a 
certification by an independent certified public accountant that the 
borrower has met each of the requirements in paragraphs (e)(1) and 
(e)(3) of this section, such certification to be substantially in the 
form in Appendix D of this subpart; and
    (6) The borrower has delivered to the Administrator, at least 10 
business days before the private lender notes are to be executed, a 
certification and agreement executed by the President of the borrower's 
Board of Directors, such certification and agreement to be 
substantially in the form in Appendix E of this subpart; providing 
that:
    (i) The borrower has met each of the requirements in paragraphs 
(e)(2) and (e)(4) of this section;
    (ii) The proceeds of the private lender notes are to be used for 
the construction or purchase of the tangible plant and materials and 
supplies to provide telecommunications services in accordance with this 
section and such construction or purchase is expected to be completed 
not later than 4 years after execution of such notes;
    (iii) The weighted-average life of the private loan evidenced by 
the private lender notes does not exceed the weighted-average remaining 
useful life of the assets being financed;
    (iv) The private lender notes will provide for substantially level 
debt service or level principal amortization over a period of time not 
less than 5 years;
    (v) All of the assets financed by the private loans will be 
purchased or otherwise procured in bona fide arm's length transactions;
    (vi) The proceeds of the private lender notes will be lent to a 
wholly-owned subsidiary of the borrower pursuant to terms and 
conditions agreed upon by the borrower and subsidiary;
    (vii) The borrower will, whenever requested by RUS, provide RUS 
with a copy of the financing or guarantee agreement between the 
borrower and the subsidiary or any similar or related material 
including security instruments, loan contracts, or notes issued by the 
subsidiary to the borrower;
    (viii) The borrower will promptly report to the Administrator any 
default by the subsidiary or other actions that impair or may impair 
the subsidiary's ability to repay its loans;
    (ix) The financing agreement with the private lender will provide 
that the private lender shall cease the advance of funds upon receipt 
of written notification from RUS that the borrower is in default under 
the RUS loan documents;
    (x) Except as provided in the Government mortgage, the borrower has 
not agreed to any restrictions or limitations on future loans from RUS; 
and
    (xi) If the private lender determines that a supplemental mortgage 
is necessary, the borrower will comply with those procedures set forth 
in paragraph (h) of this section for the preparation, execution, and 
delivery of a supplemental mortgage and take such additional action as 
may be required to secure the notes under the Government mortgage.
    (f) Borrower notification. The borrower shall notify RUS of its 
intention to obtain an automatic lien accommodation under this section 
by providing the following:
    (1) The board resolution cited in Sec. 1744.55(b)(1) and the 
opinion of counsel cited in Sec. 1744.55(b)(2);
    (2) The applicable certification or certifications required by 
paragraph (c)(2); paragraphs (d)(5) and (d)(6); or paragraphs (e)(5) 
and (e)(6), respectively, of this section, in substantially the form 
set forth in the applicable appendices to this subpart.
    (g) RUS acknowledgment. Within 5 business days of receipt of the 
completed certifications and any other information required under this 
section, RUS will review the information and provide written 
acknowledgment to the borrower of its qualification for an automatic 
lien accommodation. Upon receipt of the acknowledgment, the borrower 
may execute the private lender notes.
    (h) Supplemental mortgage. If the private lender determines that a 
supplemental mortgage is required to secure the private lender notes on 
a pari passu or pro-rata basis with all other notes secured under the 
Government mortgage, the private lender may prepare the supplemental 
mortgage using the form attached as Appendix F to this subpart or the 
borrower may request RUS to prepare such supplemental mortgage in 
accordance with the following procedures:
    (1) The private lender preparing the supplemental mortgage shall 
execute and forward the completed document to RUS. Upon ascertaining 
the correctness of the form and the information concerning RUS, RUS 
will execute and forward the supplemental mortgage to the borrower.

[[Page 69953]]

    (2) When requested by the borrower, RUS will expeditiously prepare 
the supplemental mortgage, using the form in Appendix F to this 
subpart, upon submission by the private lender of:
    (i) The name of the private lender;
    (ii) The Property Schedule for inclusion as supplemental mortgage 
Schedule B, containing legally sufficient description of all real 
property owned by the borrower; and
    (iii) The amount of the private lender note.
    (3) The private lender is responsible for ensuring that the 
supplemental mortgage has been executed by all parties and is a valid 
and binding instrument enforceable in accordance with its terms, and 
recorded and filed in accordance with applicable law. If the private 
lender determines that additional security instruments or other 
documents are required or that RUS must take additional actions to 
secure the private lender notes under the mortgage, the private lender 
shall follow the procedures set forth in Secs. 1744.40 or 1744.50, as 
appropriate. When processing of the supplemental mortgage has been 
completed to the satisfaction of the private lender, the borrower shall 
provide RUS with the following:
    (i) A fully executed counterpart of the supplemental mortgage, 
including all signatures, seals, and acknowledgements; and
    (ii) Copies of all opinions rendered by borrower's counsel to the 
private lender.
    (i) Other approvals. (1) The borrower is responsible for meeting 
all requirements necessary to issue private lender notes and to 
accommodate the lien of the Government mortgage to secure the private 
lender notes including, but not limited to, those of the private 
lender, of any other mortgagees secured under the existing RUS 
mortgage, and of any governmental entities with jurisdiction over the 
issuance of notes or the execution and delivery of the supplemental 
mortgage.
    (2) To the extent that the borrower's existing mortgage requires 
RUS approval before the borrower can make an investment in an 
affiliated company, approval is hereby given for all investments made 
in affiliated companies with the proceeds of private lender notes 
qualifying for an automatic lien accommodation under paragraph (e) of 
this section. Any reference to an approval by RUS under the mortgage 
shall apply only to the rights of RUS and not to any other party.
    5. Revise newly redesignated Sec. 1744.50(a)(3), to read as 
follows:


Sec. 1744.50   Non-Act purposes.

    (a) * * *
    (3) Approval of the request is in the interests of the Government 
with respect to the financial soundness of the borrower and other 
matters, such as assuring that the borrower's system is constructed 
cost-effectively using sound engineering practices.
* * * * *
    6. In newly redesignated Sec. 1744.55, revise paragraph (a), remove 
paragraph (b)(5), and redesignate paragraph (b)(6) as paragraph (b)(5), 
to read as follows:


Sec. 1744.55   Application procedures.

    (a) Requests for information regarding applications for lien 
accommodations or subordination under this part should be addressed to 
the Assistant Administrator, Telecommunications Program, Rural 
Utilities Service, Washington, DC 20250-1590.
* * * * *
    7. Appendices A, B, C, D, E, and F are added to subpart B to read 
as follows:

BILLING CODE 3410-15-P

[[Page 69954]]

Appendix A to Subpart B of Part 1744--Statement, Certification, and 
Agreement of President of Board of Directors Regarding Refinancing 
and Refunding Notes Pursuant to 7 CFR 1744.30(c)
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[[Page 69955]]



Appendix B to Subpart B of Part 1744--Certification of Independent 
Certified Public Accountant Regarding Notes To Be Issued Pursuant 
to 7 CFR 1744.30(c)
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[[Page 69956]]



Appendix C to Subpart B of Part 1744--Statement, Certification, and 
Agreement of President of Board of Directors Regarding Notes to be 
Issued Pursuant to 7 CFR 1744.30(d)
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[[Page 69957]]



Appendix D to Subpart B of Part 1744--Certification of Independent 
Certified Public Accountant Regarding Notes To Be Issued Pursuant 
to 7 CFR 1744.30
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[[Page 69958]]



Appendix E to Subpart B of Part 1744--Statement, Certification, and 
Agreement of President of Board of Directors Regarding Notes To Be 
Issued Pursuant to 7 CFR 1744.30(e)
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[[Page 69959]]

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[[Page 69960]]

Appendix F to Subpart B of Part 1744--Form of Supplemental Mortgage
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[[Page 69961]]

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[[Page 69962]]

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    Dated: November 22, 1999.
Jill Long Thompson,
Under Secretary, Rural Development.
[FR Doc. 99-31367 Filed 12-14-99; 8:45 am]
BILLING CODE 3410-15-C