[Federal Register Volume 74, Number 181 (Monday, September 21, 2009)]
[Rules and Regulations]
[Pages 48005-48007]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-22527]


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DEPARTMENT OF AGRICULTURE

Rural Utilities Service

7 CFR Part 1779

Rural Housing Service

7 CFR Part 3575

Rural Business--Cooperative Service

Rural Utilities Service

7 CFR Parts 4279 and 4280

Rural Business--Cooperative Service

Rural Housing Service

Rural Utilities Service

7 CFR Part 5001

[FR Doc. E8-29151]
RIN 0570-AA65


Rural Development Guaranteed Loans

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

ACTION: Interim final rule; withdrawal.

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SUMMARY: On December 17, 2008, USDA Rural Development published an 
interim rule with request for comments establishing a unified 
guaranteed loan platform for the enhanced delivery of four existing 
Rural Development guaranteed loan programs--Community Facility; Water 
and Waste Disposal; Business and Industry; and Renewable Energy Systems 
and Energy Efficiency Improvement Projects. Having considered the 
comments received on the interim rule and for the reasons explained 
below, Rural Development is withdrawing the interim rule for Rural 
Development Guaranteed Loans.

DATES: The interim final rule published on December 17, 2008 (73 FR 
76698), delayed until February 17, 2009 (74 FR 2823), further delayed 
until March 9, 2009 (74 FR 7179), further delayed until June 1, 2009 
(74 FR 9759), and further delayed until October 1, 2009 (74 FR 25617) 
is withdrawn as of September 21, 2009.

FOR FURTHER INFORMATION CONTACT: Mr. Michael Foore, Rural Development, 
Business and Cooperative Programs, U.S. Department of Agriculture, 1400 
Independence Avenue, SW., Stop 3201, Washington, DC 20250-3201; e-mail: 
[email protected]; telephone (202) 690-4730.

SUPPLEMENTARY INFORMATION: 

[[Page 48006]]

I. Background

    On September 14, 2007, Rural Development proposed (72 FR 52618) to 
combine four of its guaranteed loan programs into a unified regulatory 
platform. These four regulations are Community Facility; Water and 
Waste Disposal; Business and Industry; and Renewable Energy Systems and 
Energy Efficiency Improvement Projects. The regulations for these four 
programs developed over time and, in some aspects, independently of 
each other. As a result, certain operational and administrative issues 
associated with the utilization of Agency resources and risk management 
developed when looking at all four program regulations as a whole as 
well as individually. The intent of the interim rule was to eliminate 
or mitigate these issues, enable the Agency, administratively, to 
better manage its guaranteed loan making and servicing activities, and 
to reduce the cost of operating the guaranteed loan programs.
    In response to comments received on the proposed rule, Rural 
Development made significant changes to the unified guaranteed loan 
regulatory platform. Because of the level and number of changes made to 
the proposed rule, Rural Development issued an interim rule, which was 
published in the Federal Register on December 17, 2008 (73 FR 76698), 
with request for comments, with an effective date of January 16, 2009.
    Subsequent to the December 17, 2008 Federal Register notice, Rural 
Development issued a series of notices delaying the effective date of 
the interim rule (74 FR 2823, January 16, 2009; 74 FR 7179, February 
13, 2009; 74 FR 9759, March 6, 2009; and 74 FR 25617, May 29, 2009) 
such that the effective date was delayed to October 1, 2009. USDA Rural 
Development identified the need for delaying the effective date of the 
interim rule in each of these notices. Reasons cited included the 
necessity for additional time in order to:
     Make changes to accounting and financial control 
information technology systems critical to the delivery of these 
programs;
     Prepare the best guidance for its field staff and to train 
the field staff; and
     Finish considering the public comments received during the 
comment period for the interim rule as well as the public comments 
received on delaying the effective date of the interim rule.
    In light of the pending October 1, 2009, effective date for the 
interim rule and the need to review of the interim rule, as described 
in the January 20, 2009, memo from the Assistant to the President and 
Chief of Staff, entitled ``Regulatory Review'', Rural Development 
conducted a review of the interim rule and the comments received on it. 
Rural Development received a total of 71 public comment letters at 
various stages during the development of the interim rule--when it was 
proposed, when it was published, and when its effective date was first 
proposed to be extended. Comment letters were received from Rural 
Development personnel, attorneys, financial institutions, trade groups, 
lender associations, and individuals.
    Comments on the proposed rule were made on both the proposed 
guaranteed loan platform and on specific provisions contained in the 
proposed rule. While a number of commenters stated that they 
``commend'' or ``support'' the unified guaranteed loan platform, others 
expressed strong concerns, with some suggesting that, if adopted as 
proposed, the rule would impose unnecessary burden on both borrowers 
and lenders, and could result in lenders not participating in the 
program. Numerous comments were also received on specific proposed 
requirements (e.g., the threshold level at which audited financial 
statements would be required; inclusion of lines of credit as an 
eligible loan purpose under the Business and Industry program). Many 
commenters requested that the Agency continue the current policies 
found in the current regulations, most frequently referring to the 
Business and Industry regulations (7 CFR part 4279, subpart A and 
subpart B, and 7 CFR 4287, subpart B). In many, if not most, instances, 
the Agency agreed with the commenters and made revisions as reflected 
in the interim rule.
    In commenting on the interim rule, most commenters were still very 
concerned about the effect of the interim rule on lenders and 
borrowers, urging Rural Development to either withdraw the rule or to 
further delay its effective date until substantial improvements could 
be made. Concerns expressed included, but were not limited to:
     Because the interim rule is a new program with new 
procedures, Rural Development staff and commercial lenders will spend 
significant time and effort re-learning programs that are currently 
well-understood and fluently operated. Thus, at a time when additional 
funding will be available through the forthcoming stimulus and disaster 
funds, implementing the interim rule could endanger a successful 
program and impede delivery of funds.
     The interim rule adds unnecessary confusion and complexity 
to the delivery of these programs, creating not only a confusing 
regulatory maze for borrowers to navigate in order to access program 
funds provided in the 2008 Farm Bill, but a tremendous drag on Rural 
Development and lender productivity at a time when all efforts should 
be directed to delivering stimulus funds.
     The interim rule could significantly curtail the ability 
of these programs to maintain continuous operation because all loan 
guarantees will halt until such time as there is a new ``supply'' of 
approved lenders. This is not appropriate customer service given the 
current economic downturn when the programs are most needed and the 
additional economic stimulus funding authority.
    As noted previously, several commenters concurred with the general 
goals of unified platform for guaranteed loans, which include 
streamlining the regulatory framework of these programs, minimizing the 
time and effort of dealing with separate sets of regulations and 
requirements, and making them easier to use for lenders and borrowers. 
Implemented correctly, such a reorganization could free up agency 
personnel to spend their time in more constructive pursuits to enhance 
the administration and effectiveness of these programs. One commenter 
encouraged Rural Development to implement this program without 
substantial changes to the process that is currently in place, with 
several commenters encouraging Rural Development to work with the 
lending community to improve program delivery.
    Based on its review of the interim rule and its consideration of 
the comments received, Rural Development has determined that a better 
alternative exists to the implementation of its guaranteed loan 
programs than would be achieved under the interim rule. While Rural 
Development supports a ``common regulatory platform'' as a desirable 
structure, it now believes the platform found in 7 CFR part 5001 is not 
the best approach. In general, Rural Development believes that the 
platform created under 7 CFR part 5001 is ``too broad'' in its scope, 
attempting to provide for programs whose primary focus includes both 
commercial lending activities (i.e., business and industry and 
renewable energy) and community development activities (i.e., community 
facilities and water and waste).
    Further, Rural Development believes that implementing 7 CFR part 
5001 would impose excessive and burdensome requirements on lenders by 
requiring them to seek approval to do business with the Agency and 
submit summaries of their lending policies as

[[Page 48007]]

well as on non traditional lenders. Such provisions would discourage 
the participation of many lenders in the program, which would 
jeopardize the utilization of funds in these programs. Rural 
Development agrees with the commenters that this is of particular 
concern in light of the need of Rural Development's Rural Business--
Cooperative Service to process the applications for Business and 
Industry Loan Guarantees funded with American Recovery and Reinvestment 
Act (Recovery Act) funds pursuant to the Notice of Funds Availability 
published on July 24, 2009 (74 FR 36649).
    Instead, Rural Development believes that it is better to narrow the 
scope of a common regulatory platform to the activities associated with 
its commercial lending activities. In doing so, Rural Development will 
be able to shift the focus of the common regulatory platform from a 
broad array of guaranteed loan activities to those commercial lending 
activities associated with its Business Program, including renewable 
energy.
    Focusing on commercial lending activities within its Business 
Program provides Rural Development the option of developing a common 
regulatory structure based on its current Business and Industry 
guaranteed loan regulations (7 CFR part 4279, subparts A and B, and 7 
CFR part 4287, subpart B) and on its current Rural Energy for America 
Program regulation (7 CFR part 4280, subpart B) and incorporating the 
Biorefinery Assistance guaranteed loan program into this regulatory 
structure. By adopting, leveraging, and refining these existing 
regulations, Rural Development believes that this approach to 
developing a common regulatory structure for its commercial lending 
activities is preferable to implementing 7 CFR Part 5001 for several 
reasons, as suggested by the commenters, including, but not necessarily 
limited to:
     In contrast to 7 CFR part 5001, the framework of the 
current Business and Industry Loan Guarantee regulations is well 
established with stakeholders and has a proven program delivery track 
record.
     Implementing 7 CFR part 5001 would require both lenders 
and Rural Development staff to be re-trained in order to learn a new 
system. Because such a complete overhaul of the Business Program 
regulations is not required, it is not appropriate to burden the Rural 
Development staff to learn and implement a completely new system.
     Implementing 7 CFR part 5001 would impede Business Program 
funding utilization. The lack of familiarity with the interim rule 
would cause a 60 to 90 day standstill in program delivery at a time 
when the program level is at record levels. Furthermore, implementation 
of the interim rule will seriously impede the Administration's 
initiative to use Recovery Act funds to improve the Nation's economy.
    In summary, based on its review and re-examination of 7 CFR Part 
5001 and the comments received, Rural Development takes the position 
that, with some refinement and enhancement, a common regulatory 
structure for guaranteed loans utilizing the current Business Program 
regulations will result in a better and more efficient regulatory 
structure than would be achieved through the implementation of 7 CFR 
part 5001.

II. Withdrawal of Interim Rule

    Accordingly, the interim final rule published on December 17, 2008 
(73 FR 76698), delayed until February 17, 2009, (74 FR 2823), further 
delayed until March 9, 2009 (74 FR 7179), further delayed until June 1, 
2009 (74 FR 9759), and further delayed until October 1, 2009 (74 FR 
25617) is withdrawn as of September 21, 2009.

    Dated: September 14, 2009.
Dallas Tonsager,
Under Secretary.
[FR Doc. E9-22527 Filed 9-18-09; 8:45 am]
BILLING CODE 3410-XY-P