[Federal Register Volume 74, Number 150 (Thursday, August 6, 2009)]
[Proposed Rules]
[Pages 39240-39242]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-18801]


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DEPARTMENT OF AGRICULTURE

Commodity Credit Corporation

7 CFR Part 1493

RIN 0551-AA73


Facility Guarantee Program

AGENCY: Foreign Agricultural Service and Commodity Credit Corporation, 
USDA.

ACTION: Advanced notice of proposed rulemaking.

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SUMMARY: This advanced notice of proposed rulemaking (ANPR) solicits 
comments on options to reform the USDA, Commodity Credit Corporation 
(CCC), Facility Guarantee Program (FGP). The purpose of the ANPR is to 
invite suggestions on improvements and changes to be made in the 
implementation and operation of the FGP, with the intent of improving 
the FGP's effectiveness and efficiency and lowering costs.

DATES: Comments on this notice must be received by October 5, 2009 to 
be assured consideration.

ADDRESSES: You may submit comments by any of the following methods:
     E-Mail: [email protected].
     Fax: (202) 720-2495, Attention: ``FGP/ANPR Comments.''
     Mail to: P. Mark Rowse, Director, Office of Trade 
Programs, Credit Programs Division, Foreign Agricultural Service, U.S. 
Department of Agriculture, Stop 1025, Washington, DC 20250-1025.
     Hand Delivery or Courier: 1250 Maryland Avenue, SW., 
Washington, DC 20024.
    All comments received will be available for public inspection at 
the above address during regular business hours.

FOR FURTHER INFORMATION CONTACT: P. Mark Rowse, Director, Credit 
Programs Division, at the address stated above or by telephone: (202) 
720-6211.

SUPPLEMENTARY INFORMATION: 

Background

    The FGP is currently authorized by the Food, Agriculture, 
Conservation, and Trade Act of 1990 (the 1990 Act), as amended. Under 
the FGP, CCC provides payment guarantees to facilitate the financing of 
manufactured goods and services exported from the United States to 
improve or establish agriculture-related facilities in emerging 
markets. By supporting such facilities, the FGP is designed to enhance 
sales of U.S. agricultural commodities and products to emerging markets 
where the demand for such commodities and products may be limited due 
to inadequate storage, processing, handling or distribution 
capabilities for such products.
    Under the FGP, CCC guarantees a loan established by a U.S. bank 
(or, less typically, by a U.S. exporter) to an importer's bank. The 
eligible importer's bank issues a dollar-denominated letter of credit 
in favor of the exporter. The eligible U.S. bank, working with the 
exporter, extends credit to finance the sale of equipment, goods or 
services for an FGP approved project.
    As a Participant to the Organization for Economic Cooperation and 
Development's (OECD) Arrangement on Officially Supported Export 
Credits, the United States has agreed to adopt the terms and conditions 
of that Arrangement for the FGP. The Arrangement can be found on the 
OECD's Web site at: http://www.oecd.org/topic/0,3373,en_2649_34169_1_1_1_1_37431,00.html.

Project Eligibility

    USDA does not designate specific projects but instead solicits 
proposals from exporters. Private sector importers, exporters and the 
banking sector should determine which projects are commercially viable. 
The FGP will support the financing of projects that

[[Page 39241]]

focus on improvements to the storage, processing, handling or 
distribution of agricultural commodities. The exporter, with 
information from the importer, must make a reasonable economic argument 
that the project will primarily benefit U.S. agricultural commodity 
exports.

Payment and Coverage

    CCC requires a minimum 15 percent initial payment by the importer 
to the exporter prior to the export of the goods or services. After the 
initial payment is deducted from the net contract value, the FGP 
guarantee covers a portion of the facility base value (historically 95 
percent) and a portion of the interest for a repayment term of up to 10 
years, depending on the country. By financing less than 100 percent of 
the net contract value, CCC encourages risk-sharing by the exporter or 
the exporter's assignee.

Participation Criteria

    The CCC must qualify FGP participants before accepting guarantee 
applications. An exporter must have a business office in the United 
States and must not be debarred or suspended, or otherwise excluded, 
from any U.S. government program. Financial institutions must be 
approved by the CCC.
    The CCC evaluates the ability of each country and each approved 
foreign bank to service CCC-guaranteed debt. For programming purposes, 
a credit limit is established for each obligor country. Banks within 
the approved obligor country are reviewed and individual bank credit 
lines are established. New banks may be added or existing approved bank 
levels may be increased or decreased as appropriate, based on available 
information.

Defaults/Claims

    If the foreign bank fails to make any payment as agreed under the 
FGP guaranteed transaction, the exporter or assignee must submit a 
notice of default to the CCC. A claim for loss also may be filed, and 
the CCC will promptly pay claims found to be in good order. For CCC 
audit purposes, the U.S. exporter must obtain documentation to show 
that the commodity arrived in the eligible country, and must maintain 
all transaction documents for 5 years from the date of completion of 
all payments.

Fees

    The issuance of the guarantee is subject to a fee paid by the 
applicant. Fees are based on the risk grade of the obligor country, 
tenor of the guarantee (length of credit period), and terms for 
principal payment installments, whether 6 months or annually.

Statutory Authority and Revisions

    The FGP is authorized by section 1542 of the Food, Agriculture, 
Conservation, and Trade Act of 1990, as amended (1990 Act). Section 
1542(a) of the 1990 Act, as amended, provides that CCC make available, 
for fiscal years 1996 through 2012, not less than $1 billion in direct 
credits or export credit guarantees for exports to emerging markets. A 
portion of such credit guarantees must, in accordance with section 
1542(b) of the 1990 Act, be made available for the export of goods and 
services for agricultural facilities.
    Guarantees are to be made available if the Secretary of Agriculture 
determines that such guarantees will primarily promote the export of 
U.S. agricultural commodities and products thereof. Specifically, 
eligible projects must provide for (1) the establishment or improvement 
of agricultural facilities in emerging markets, or (2) the provision of 
services or U.S. products goods in emerging markets, by U.S. persons, 
to improve handling, marketing, processing, storage, or distribution of 
imported agricultural commodities or products in such markets. The 
phrase ``establishment or improvement of facilities'' allows for varied 
types of projects ranging from the sale of equipment (e.g., 
refrigeration, processing, transportation) and other goods needed to 
alleviate impediments to increasing export sales of U.S. agricultural 
commodities, to providing services, such as equipment installation, 
testing, and training to facilitate achievement of the same purposes.
    Section 1542(b) further requires CCC to give priority to projects 
that (1) encourage the privatization of the agricultural sector in 
emerging markets, (2) benefit private farms or cooperatives in emerging 
markets, and (3) are supported by nongovernmental persons who agree to 
assume a relatively larger share of the costs.
    Section 1542(f) of the 1990 Act defines ``emerging market'' as any 
country that the Secretary of Agriculture determines (1) is taking 
steps towards a market-oriented economy through food, agriculture, or 
rural business sectors of the economy of the country and (2) has the 
potential to provide a viable and significant market for U.S. 
agricultural commodities or their products.
    The Food, Conservation, and Energy Act of 2008 extended the 
authority for the FGP through fiscal year 2012, and amended section 
1542(b) by providing for a ``Construction Waiver'' that would allow the 
Secretary of Agriculture to waive the requirement for U.S. goods used 
in the construction of the facility if the Secretary determines that 
U.S. goods are not available or the use of U.S. goods is not 
practicable.

Regulatory History

    CCC published an FGP interim rule on March 1, 1993 (58 FR 11786), 
in response to the 1990 Act. However, the interim rule was deleted 
effective November 18, 1994, when CCC revised 7 CFR 1493 and issued a 
final rule on the GSM-102 and GSM-103 programs, and the program was not 
made operational before its authority expired on September 30, 1995. 
Congress changed the targeting of the FGP in the Federal Agriculture 
Improvement and Reform Act of 1996 to countries determined by the 
Secretary of Agriculture to be emerging markets. On August 8, 1997, a 
new interim rule with request for comment was issued that provided for 
facility payment guarantees to be issued by the CCC. To date, no final 
rule has been issued for the FGP and the comments received related to 
the 1997 interim rule were never addressed by CCC.

Comments

    CCC is soliciting the responses of interested parties to the 
following specific questions concerning options under consideration for 
the FGP. Interested parties may choose to address any or all of the 
questions listed or provide other comments. CCC's aim is to streamline 
the FGP's application process and to improve upon the program's 
effectiveness and efficiency. Additional program information is 
available on our Web site at: http://www.fas.usda.gov/excredits/ecgp.asp.

1. Application and Review Process

--Should CCC simplify or eliminate the preliminary review stage of the 
application process?
--Should CCC simplify/reduce the information required by 7 CFR 
1493.240(a)(20) that is intended to ensure that the facility being 
financed will primarily promote the exports of U.S. agricultural 
commodities?
--What information should CCC require to ensure that the facility being 
financed will primarily promote the exports of U.S. agricultural 
commodities?
--Should CCC continue to require an analysis of project outputs as 
required by 7 CFR 1493.240(a)(21)?
--In what way could 7 CFR 1493.240(a)(21) be simplified?
--Should CCC continue to require per 7 CFR 1493.240(a)(5) that letters 
of interest from U.S. and foreign banks

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be submitted at the time of initial application?
--What documentation should an applicant submit to CCC to establish 
evidence that the initial 15 percent down payment requirement has been 
met?

2. Coverage

--What coverage should CCC offer under the FGP (principal and 
interest)?
--Should CCC continue to require a risk share partner? If not, please 
explain why a risk share partner is unnecessary.

3. Construction Waiver

    With the enactment of the Food, Conservation, and Energy Act of 
2008, the Secretary of Agriculture may waive the requirement for U.S. 
goods used in the construction of the facility if the Secretary 
determines that U.S. goods are not available or the use of U.S. goods 
is not practicable.

--What documentation should CCC require the applicant provide to 
support a request for a determination that U.S. goods are unavailable?
--What documentation should CCC require the applicant provide to 
support a request for a determination that the use of goods from the 
United States is not practicable?
--How does CCC incorporate delivery lead time of the goods in a 
determination of non-availability?
--Should pricing of goods be a determinant of practicability?
--Should practicability take into consideration the compatibility of 
U.S. goods with local inputs?

Consideration of Comments:
    Additional comments on other program modifications to the FGP that 
are responsive to the principles outlined herein are encouraged. CCC 
will carefully consider all comments submitted by interested parties. 
After consideration of the comments received, CCC will consider what 
changes should be made to the FGP. Some of the changes described above 
would require solicitation and consideration of comments received from 
interested parties via the rulemaking process. Other changes might be 
adopted by changing internal policies and procedures. Comments received 
will help CCC to determine the extent and scope of any future 
rulemaking.

    Signed at Washington, DC, on July 24, 2009.
Suzanne Hale,
Acting Administrator, Foreign Agricultural Service, and Executive Vice 
President, Commodity Credit Corporation.
[FR Doc. E9-18801 Filed 8-5-09; 8:45 am]
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