[Federal Register Volume 60, Number 138 (Wednesday, July 19, 1995)]
[Proposed Rules]
[Pages 37025-37037]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-17626]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 60, No. 138 / Wednesday, July 19, 1995 /
Proposed Rules
[[Page 37025]]
DEPARTMENT OF AGRICULTURE
Commodity Credit Corporation
7 CFR Part 1493
[RIN 0551-AA30]
Commodity Credit Corporation Supplier Credit Guarantee Program
Agency: Commodity Credit Corporation, USDA.
Action: Proposed rule with request for comment.
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SUMMARY: The Commodity Credit Corporation (CCC) proposes to establish
as a new subpart D of 7 CFR Part 1493, the Supplier Credit Guarantee
Program (SCGP), as a variant of the Export Credit Guarantee Program
(GSM-102), which is provided for under subpart B of 7 CFR Part 1493.
The SCGP is designed to assist exporters of U.S. agricultural
commodities who wish to provide relatively short term (up to 180 days)
credits to their importers. Under SCGP, CCC will guarantee payment of
such credits by the importer, and the exporter may assign such
guarantees to an eligible U.S. financial institution.
The SCGP is designed to offer certain advantages to U.S. exporters
and importers that are not available under standard GSM-102 terms.
Specifically, under SCGP there will be no requirement of a foreign bank
letter of credit to ensure payment of the export transaction. Instead,
CCC will ensure payment of the obligation of the importer due the U.S.
exporter. The importer will benefit by avoiding the cost of opening a
bank letter of credit. In addition, there will be fewer delays
associated with opening a letter of credit. Finally, because the
importer, rather than a foreign bank, will be the borrower, the
importer will enjoy the full benefit of the credit terms guaranteed by
CCC.
While offering these advantages, SCGP poses corresponding financial
risks to the CCC. To provide an incentive to U.S. exporters and their
assignees to evaluate carefully the credit-worthiness of individual
importers, CCC expects to announce lower levels of coverage for
principal and/or interest under SCGP than under normal GSM-102 terms.
Additionally, guarantee fees charged to exporters will likely be higher
than GSM-102 fees for comparable credit periods.
Aside from these changes, CCC proposes to operate SCGP in
essentially the same fashion as GSM-102, and under nearly identical
regulatory provisions (except where conforming changes are required in
light of unique SCGP features). Exporters who have established
eligibility to participate in GSM-102 will automatically be eligible to
participate in SCGP.
DATES: Comments on this proposed rule must be received by September 18,
1995 to be assured of consideration.
ADDRESSES: Comments must be submitted in writing to L.T. McElvain,
Director, CCC Operations Division, Foreign Agricultural Service, U.S.
Department of Agriculture (USDA), Ag Box 1035, Washington, DC 20250-
1035; FAX (202) 720-2949. All comments received will be available for
public inspection at the above address during regular business hours.
FOR FURTHER INFORMATION CONTACT: L.T. McElvain, Director, CCC
Operations Division, at the address stated above. Telephone (202) 720-
6211. The USDA prohibits discrimination in its programs on the basis of
race, color, national origin, sex, religion, age, disability, political
beliefs and marital or familial status. Persons with disabilities who
require alternative means for communication of program information
(braille, large print, audiotape, etc.) should contact the USDA Office
of Communications at (202) 820-5881 (voice) or (202) 720-7808 (TDD).
SUPPLEMENTARY INFORMATION:
Executive Order 12866
This rule has been determined to be significant and was reviewed by
the Office of Management and Budget (OMB) under Executive Order 12866.
Regulatory Flexibility Act
It has been determined that the Regulatory Flexibility Act is not
applicable to this proposed rule since CCC is not required by 5 U.S.C.
553 or any other provision of law to publish a notice of rulemaking
with respect to the subject matter of this rule.
Executive Order 12372
This program is not subject to the provisions of Executive Order
12372, which requires intergovernmental consultation with state and
local officials. See the notice related to 7 CFR part 3015, subpart V,
published at 48 FR 29115 (June 24, 1983).
Paperwork Reduction Act
The paperwork requirements which are imposed by the current
regulations found at 7 CFR Part 1493 were approved by the OMB under the
Paperwork Reduction Act of 1980. The OMB assigned number for those
requirements is OMB No. 0551-0004. The public reporting burden for
collections made under this new subpart D is estimated to average 0.18
hours per response, including time for reviewing instructions,
serarching existing sources, gathering and maintaining the data needed,
and completing and reviewing the collection of information. This
proposed rule has been submitted for review. It is expected that OMB
will assign it a control number for the purposes of the Paperwork
Reduction Act. Send comments regarding this burden estimate or any
other aspects of this collection, including suggestions for reducing
this burden, to Department of Agriculuture, Clearance Officer, OIRA,
Room 404-W, Washington D.C. 20250; and to the OMB, Paperwork Reduction
Project, Washington, D.C. 20503.
Executive Order 12778
This proposed rule has been reviewed under the Executive Order
12778, Civil Justice Reform. The proposed rule would have preemptive
effect with respect to any state or local laws, regulations, or
policies which conflict with such provisions or which otherwise impede
their full implementation. The rule would not have retroactive effect.
The proposed rule requires that certain administrative remedies be
exhausted before suit may be filed.
The USDA is committed to carrying out its statutory and regulatory
mandates in a manner that best serves the public interest. Therefore,
where legal discretion permits, the Department actively seeks to
promulgate regulations that promote economic growth, create jobs, are
minimally burdensome and are easy for the public to understand, use or
comply with. In short, the Department
[[Page 37026]]
is committed to issuing regulations that maximize net benefits to
society and minimize costs imposed by those regulations.
Preliminary Economic Impact Analysis
The Preliminary Economic Impact Analysis of the options considered
in developing this proposed rule and the potential impact of the
Supplier Credit Guarantee Program (SCGP) is available upon request from
Mary T. Chambliss, Deputy Administrator, Export Credits, FAS/USDA, Ag
Box 1030, Washington, DC 20250-1030: phone (202) 720-6301: fax (202)
720-0727. The analysis can be summarized as follows: USDA administers
two active export credit guarantee programs: the Export Credit
Guarantee Program (GSM-102) offering credit guarantees for up to 3
years, and the Intermediate Export Credit Guarantee Program (GSM-103)
offering credit guarantees from 3-10 years. In the past two to three
years, use of GSM-102/103 has been considerably below budgeted program
levels. This has led CCC to consider new programs that could supplement
the GSM-102/103 programs.
The program options considered were a Serial Guarantee Program
under which CCC would issue a guarantee to a U.S. exporter covering
payment by the foreign buyer for each of a series of ``back to back''
export deliveries in small unit volumes of fairly homogeneous
commodities; a Short Term Insurance Program which would permit CCC to
issue insurance policies directly to U.S. banks (and to exporters
offering supplier credits) to cover credits extended to foreign buyers
of U.S. agricultural commodities and products; and a SCGP which would
be a variant of the GSM-102 program to assist exporters of U.S.
agricultural commodities who wish to provide relatively short term (up
to 180 days) credits to the importer.
Of the three options considered, the SCGP was determined to be the
program that was most likely to satisfactorily address the problems
that were causing under utilization of the GSM-102/103 programs. At the
same time, the SCGP could be operated within the existing program level
for the CCC export credit guarantee programs. A letter of credit would
not be required from the foreign bank, allowing the importer to
directly enjoy the benefits of credit terms extended by the exporter
and guaranteed by CCC. Finally, it appeared that the most attractive
features of the other options could be either built into existing GSM-
102/103 regulations, or into the SCGP option.
Subsidy of $3.5 million for the SCGP was derived using costing and
risk assessment methodologies and models similar to those used to
develop cost estimates for the GSM-102/103 programs. However, as the
program evolves, risk assessment techniques and perhaps models that
appropriately capture economic and other defining characteristics of
this program are likely to be developed for use in gauging future
program costs. Benefits derived from implementing the SCGP would equal
the costs of the program even if additionality of the SCGP were only
slightly higher than one and one-half percent.
The SCGP will be implemented in early FY 1996 and will be
administered under regulations published in the Federal Register and by
Program Announcements and Notices to Participants issued by CCC. It
will be implemented under the general administrative responsibility of
the General Sales Manager (GSM), FAS, USDA. The review and payment of
claims for loss will be administered by the Office of the Controller,
CCC.
Request for Public Comment
Comments are requested with respect to this proposed rule and such
comments shall be considered in developing the final rule.
Background
A. Interchangeability of SCGP and GSM-102 program.
The SCGP and GSM-102 program will be considered interchangeable
mechanisms for advancing the purposes set forth in 7 CFR Part 1493,
subpart A. Country allocations of credit guarantee availabilities for
the two programs will be decided jointly, under the same overall
country exposure limits, with the objective of achieving the best mix
of the two types of guarantees.
B. Description and advantages of SCGP.
SCGP will offer certain advantages to U.S. exporters and importers
that are not available under standard GSM-102 terms. Most importantly,
exporters will be able to apply to CCC for guarantees of repayment of
credits they extend to importers without the requirement that the
importer cause to be opened, by an eligible foreign bank, a letter of
credit. Under SCGP, CCC will guarantee payment of the importer
(importer obligation) to the exporter. The importer will benefit by
avoiding the cost of opening a bank letter of credit. In addition,
there will be fewer delays associated with opening a letter of credit.
Finally, because the importer, rather than a foreign bank, will be the
borrower, the importer will enjoy the full benefit of the credit terms
guaranteed by CCC.
C. How certain SCGP provisions differ from GSM-102.
While offering the above advantages, SCGP poses corresponding
financial risks to the CCC. By taking importer risk, rather than
foreign bank risk under standard GSM-102 terms, CCC recognizes that a
higher rate of default in payments to exporters or their assignees
could occur. Accordingly, the following SCGP features are modifications
of GSM-102 program features.
(1) Importer obligation. The definition of importer obligation is
found at Sec. 1493.410(n). The importer obligation must be in the form
of a fixed rate or a floating rate promissory note which conforms with
the provisions set forth in Sec. 1493.470. The promissory note(s) must
provide for payment in U.S. dollars, on a specificed date, and must be
made in favor of the exporter by the importer. In order to assure
consistency, the promissory note(s) contains mandatory provisions,
However, CCC gives program participants the choice of certain
additional provisions which may be incorporated, without written
consent of CCC, into the promissory note(s). No other form of importer
obligation may be used.
(2) Coverage. To provide an incentive to U.S. exporters and their
assignees to evaluate carefully the credit risk posed by individual
importer, CCC expects to announce lower levels of coverage for
principal and/or interest under SCGP than are available under current
GSM-102 terms. The amount of coverage is not specified in the proposed
regulations because CCC wishes to retain the ability to adjust coverage
as necessary, given its experience in operating the program. At
present, CCC is considering inaugurating the program with maximum
principal coverage of 50 percent of port value, and no interest
coverage. For illustrative purposes only, Appendix A to Sec. 1493.530
uses 60 percent coverage to compute CCC's obligations under a
hypothetical payment guarantee which provides for interest coverage as
well. Comments are especially invited on the matter of coverage levels
in the SCGP.
(3) Guarantee fee. Guarantee fees charged to exporters will likely
be higher than GSM-102 fees for comparable credit periods. One approach
being considered by CCC is charging a uniform fee (irrespective of the
eligible country in which the importer is located and irrespective of
the length of the credit period) in the
[[Page 37027]]
mid-point of the range of insurance premiums for good risk countries
charged by Eximbank in its short-term, single-buyer insurance program.
Currently, this would be a fee of approximately 95 cents per $100 of
guarantee coverage. Fees cannot exceed $1.00 per $100 of guarantee
coverage, in accordance with section 211(b)(1)(B) of the Agricultural
Trade Act of 1978 (7 U.S.C. 5641(b)(1)(B)). Comments are especially
invited on the matter of the guarantee fee level in the SCGP.
(4) Length of credit period. SCGP guarantees would be available for
credit periods not to exceed 180 days.
(5) Application. Although CCC does not intend to routinely conduct
independent evaluations of the creditworthiness of individual
importers, it proposes to reserve the right to require exporters, in
the process of applying for an SCGP guarantee, to provide additional
information at the exporter's disposal concerning the importer. It is
expected that this requirement, if imposed, would be primarily with
respect to previous transactions with importers whose obligations CCC
has not previously guaranteed.
(6) Ineligible exporter. This provision has been added as paragraph
(c) of Sec. 1493.430, Application for payment quarantee. It is intended
to prevent a situation in which CCC would receive a claim for a loss
from an exporter which directly or indirectly owns or controls, or is
owned or controlled, by the importer which is responsible for the
default.
D. Other provisions.
Aside from the changes outlined above, CCC proposes to operate SCGP
in essentially the same fashion as GSM-102, and under identical
regulatory provisions (except where conforming changes are required in
light of unique SCGP features). Although SCGP and GSM-102 will be used
interchangeably as discussed in A above, separate program announcements
and notices could be issued by CCC for the two programs.
Among the key features of GSM-102 that will also be applicable to
SCGP are:
(a) Information required to be submitted by the exporter to
establish eligibility (exporters which have already established
eligibility to participate in GSM-102 would automatically be eligible
to participate in SCGP) [Sec. 1493.420];
(b) The requirement that the exporter have a firm export sale
before submitting an application to CCC [Sec. 1493.430(a)];
(c) The requirement that the exporter make a number of
certifications, including that the commodity or product to be exported
meets the definition of United States agricultural commodity
[Sec. 1493.410(x)];
(d) Ineligibility of certain exports, including those with a date
of export prior to the date of the exporter's application to CCC for a
payment guarantee [Sec. 1493.450(f)];
(e) Non-refundability of guarantee fees paid by the exporter
[Sec. 1493.460(d)];
(f) Time limits for the submission of evidence of export reports
[Sec. 1493.480(b)];
(g) The requirement to report to CCC any discounts or allowances
provided to the importer [Sec. 1493.430(a)(11) and
Sec. 1493.480(a)(8)], and to certify, both at time of application and
submission of evidence of export reports, that no corrupt payments or
extra sales and services or other items extraneous to the transaction
were provided [Sec. 1493.440(b) and Sec. 1493.490(d)];
(h) The requirement that the exporter retain documentation of proof
of entry of the eligible commodity into the eligible country
[Sec. 1493.500(b)];
(i) The requirement that the exporter and the exporter's assignee
pay immediately to CCC any monies for a defaulted payment recovered
from any source whatsoever [Sec. 1493.530(b)]; and
(j) The liability of the exporter to CCC for fraud or any material
breach of any contractual obligation, certification, or warranty
[Sec. 1493.530(d)].
List of Subjects in 7 CFR Part 1493
Administrative practice and procedures, Agriculture, Agricultural
commodities, Credits, Exports, Guarantees, Reporting and recordkeeping
requirements.
PART 1493--[AMENDED]
Accordingly, part 1493 of title 7 is amended by adding and
reserving a subpart C and adding subpart D reading as follows:
Subpart D--CCC Supplier Credit Guarantee Program
Sec.
1493.400 General statement.
1493.410 Definition of terms.
1493.420 Information required for program participation.
1493.430 Application for a payment guarantee.
1493.440 Certification requirements for a payment guarantee.
1493.450 Payment guarantee.
1493.460 Guarantee rates and fees.
1493.470 Importer obligation.
1493.480 Evidence of export.
1493.490 Certification requirements for evidence of export.
1493.500 Proof of entry.
1493.510 Notice of default and claims for loss.
1493.520 Payment for loss.
1493.530 Recovery of losses.
1493.540 Miscellaneous provisions.
Authority: 7 U.S.C. 5602, 5622, 5661, 5662, 5663, 5664, 5676; 15
U.S.C. 714b(d), 714c(f).
Subpart D--CCC Supplier Credit Guarantee Program
Sec. 1493.400 General statement.
(a) Overview. (1) This subpart contains the regulations governing
the operations of the Supplier Credit Guarantee Program (SCGP). The
restrictions and criteria set forth at subpart A for the Commodity
Credit Corporation (CCC) Export Credit Guarantee Program (GSM-102) and
the Intermediate Credit Guarantee Program (GSM-103) will apply to this
subpart. The SCGP was developed to expand U.S. agricultural exports by
making available payment guarantees to encourage U.S. exporters to
extend financing on credit terms not to exceed 180 days to importers of
U.S. agricultural commodities.
(2) The SCGP operates in cases where credit is necessary to
increase or maintain U.S. exports to a foreign market and where private
U.S. exporters would be unwilling to provide financing without CCC's
guarantee. The program is operated in a manner intended not to
interfere with markets for cash sales. The program is targeted toward
those countries where the guarantees are necessary to secure financing
of the exports but which have sufficient financial strength so that
foreign exchange will be available for scheduled payments. In providing
this credit guarantee facility, CCC seeks to expand market
opportunities for U.S. agricultural exporters and assist long-term
market development for U.S. agricultural commodities.
(3) The credit facility created by this program is the SCGP payment
guarantee (payment guarantee). The payment guarantee is an agreement by
CCC to pay the exporter, or the U.S. financial institution that may
take assignment of the exporter's right to proceeds, specified amounts
of principal and, where applicable, interest due from, but not paid by,
the importer incurring the obligation in connection with the export
sale to which CCC's guarantee coverage pertains. By approving an
exporter's application for a payment guarantee, CCC encourages private
sector, rather than government, financing and incurs a substantial
portion of the risk of default by the importer. CCC assumes this risk,
in order to be able to operate the program for the purposes specified
in Sec. 1493.2.
[[Page 37028]]
(b) Credit facility mechanism. (1) For the purpose of the SCGP, CCC
will consider applications for payment guarantees only in connection
with export sales of U.S. agricultural commodities where the payment
for the agricultural commodities will be made under an unconditional
and irrevocable importer obligation to a U.S. exporter payable in U.S.
dollars, as further described in Sec. 1493.470.
(2) The exporter may assign the right to proceeds under the
importer obligation to a U.S. bank or other financial institution so
that the exporter may realize the proceeds of the sale prior to the
deferred payment date(s) as set forth in the importer obligation.
(3) The SCGP payment guarantee is designed to protect the exporter
or the exporter's assignee against those losses specified in the
payment guarantee resulting from defaults, whether for commercial or
noncommercial reasons, by the importer under the importer's obligation.
(c) Program administration. The SCGP will be administered pursuant
to subpart A and this subpart and any Program Announcements and Notices
to Participants issued by CCC pursuant to, and not inconsistent with,
this subpart. This program is under the general administrative
responsibility of the General Sales Manager (GSM), Foreign Agricultural
Service (FAS/USDA). The review and payment of claims for loss will be
administered by the Office of the Controller, CCC. Information
regarding specific points of contact for the public, including names,
addresses, and telephone and facsimile numbers of particular USDA or
CCC offices, will be announced by a public press release (see
Sec. 1493.410(c), ``Contacts P/R'').
(d) Country allocations and program announcements. From time to
time, CCC will issue a Program Announcement to announce a SCGP
allocation for a specific country. The Program Announcement for a
country allocation will designate specific allocations for U.S.
agricultural commodities or products thereof. Exporters may negotiate
export sales to importers in that country for one of the commodities
specified in the Program Announcement and seek payment guarantee
coverage within the dollar amounts of specified coverage for that
commodity. The Program Announcement will contain a requirement that the
exporter's sales contract contain a shipping deadline within the
applicable program year. The final date for a contractual shipping
deadline will be stated in the Program Announcement. Program
Announcements may also contain a specified ``undesignated'' or
``unallocated'' dollar amount for the purpose that if dollar amounts
specified for a specific commodity for a country become fully used, an
additional allocation from the ``unallocated'' or
``undesignated''portion of the total country allocation may then be
designated for a specific commodity. Program Announcements that include
an ``unallocated'' or ``undesignated'' dollar amount will contain
further information on the ``unallocated'' or ``undesignated'' portion
of the country allocation.
Sec. 1493.410 Definition of terms.
Terms set forth in this subpart and in CCC Program Announcements,
Notices to Participants, and any other CCC-originated documents
pertaining to the SCGP will have the following meanings:
(a) Assignee. A financial institution in the United States which,
for adequate consideration given, has obtained the legal rights to
receive the payment of proceeds under the payment guarantee.
(b) CCC. The Commodity Credit Corporation, an agency and
instrumentality of the United States within the Department of
Agriculture, authorized pursuant to the Commodity Credit Corporation
Charter Act of 1948 (15 U.S.C. 714 et seq.), and subject to the general
supervision and direction of the Secretary of Agriculture.
(c) Contacts P/R. A notice issued by FAS/USDA by public press
release which contains specific names, addresses, and telephone and
facsimile numbers of contacts within FAS/USDA and CCC for use by
persons interested in obtaining information concerning the operations
of the SCGP. The Contacts P/R also contains details about where to
submit information required to qualify for program participation, to
apply for payment guarantees, to request amendments of payment
guarantees, to submit evidence of export reports, and to give notices
of default and file claims for loss.
(d) Date of export. One of the following dates, depending upon the
method of shipment: the on-board date of an ocean bill of lading or the
on-board ocean carrier date of an intermodal bill of lading; the on-
board date of an airway bill; or, if exported by rail or truck, the
date of entry shown on an entry certificate or similar document issued
and signed by an official of the Government of the importing country.
(e) Date of sale. The earliest date on which a contractual
obligation exists between the exporter, or an intervening purchaser, if
applicable, and the importer under which a firm dollar-and-cent price
for the sale of agricultural commodities to the importer has been
established or a mechanism to establish such price has been agreed
upon.
(f) Discounts and allowances. Any consideration provided directly
or indirectly, by or on behalf of the exporter, or an intervening
purchaser, to the importer in connection with a sale of an agricultural
commodity, above and beyond the commodity's value, stated on the
appropriate FOB, FAS, CFR or CIF basis. Discounts and allowances
include, but are not limited to, the provision of additional goods,
services or benefits; the promise to provide additional goods, services
or benefits in the future; financial rebates; the assumption of any
financial or contractual obligations; the whole or partial release of
the importer from any financial or contractual obligations; or
settlements made in favor of the importer for quality or weight.
(g) Eligible interest. The maximum amount of interest, based on the
interest rate indicated in CCC's payment guarantee or any amendments to
such payment guarantee, which CCC agrees to pay the exporter or the
exporter's assignee in the event that CCC pays a claim for loss. The
maximum interest rate stated in the payment guarantee, when determined
or adjusted by CCC, will not exceed the average investment rate of the
most recent Treasury 52-week bill auction in effect at that time.
(h) Exported value. (1) Where CCC announces coverage on a FAS or
FOB basis and:
(i) Where the commodity is sold on a FAS or FOB basis, the value,
FAS or FOB basis, U.S. point of export, of the export sale, reduced by
the value of any discounts or allowances granted to the importer in
connection with such sale; or
(ii) Where the commodity was sold on a CFR or CIF basis, point of
entry, the value of the export sale, FAS or FOB, point of export, is
measured by the CFR or CIF value of the agricultural commodity less the
cost of ocean freight, as determined at the time of application and, in
the case of CIF sales, less the cost of marine and war risk insurance,
as determined at the time of application, reduced by the value of any
discounts or allowances granted to the importer in connection with the
sale of the commodity; or
(2) Where CCC announces coverage on a CFR or CIF basis, and where
the commodity is sold on a CFR or CIF basis, point of entry, the total
value of the export sale, CFR or CIF basis, point of entry, reduced by
the value of any discounts or allowances granted to the importer in
connection with the sale of the commodity.
[[Page 37029]]
(3) When a CFR or CIF commodity export sale involves the
performance of non-freight services to be performed outside the United
States (e.g., services such as bagging bulk cargo) which are not
normally included in ocean freight contracts, the value of such
services and any related materials not exported from the U.S. with the
commodity must also be deducted from the CFR or CIF sales price in
determining the exported value.
(i) Exporter. A seller of U.S. agricultural commodities or products
thereof that has qualified in accordance with the provisions of
Sec. 1493.420.
(j) FAS/USDA. The Foreign Agricultural Service, U.S. Department of
Agriculture.
(k) GSM. The General Sales Manager, FAS/USDA, acting in his
capacity as Vice President, CCC, or his designee.
(l) Guaranteed value. The maximum amount, exclusive of interest,
that CCC agrees to pay the exporter or assignee under CCC's payment
guarantee, as indicated on the face of the payment guarantee.
(m) Importer. A foreign buyer that enters into a contract with an
exporter, or with an intervening purchaser, for an export sale of
agricultural commodities to be shipped from the U.S. to the foreign
buyer.
(n) Importer obligation. A promissory note or notes that conforms
with the provisions of Sec. 1493.470.
(o) Incoterms. The following customary terms, as defined by the
International Chamber of Commerce, Incoterms (current
revision):
(1) Free Alongside Ship (FAS);
(2) Free on Board (FOB);
(3) Cost and Freight (CFR, or alternatively, C&F, C and F, or CNF);
and
(4) Cost Insurance and Freight (CIF).
(p) Intervening purchaser. A party that agrees to purchase U.S.
agricultural commodities from an exporter and sell the same
agricultural commodities to an importer.
(q) Late interest. Interest, in addition to the interest due under
the payment guarantee, which CCC agrees to pay in connection with a
claim for loss, accruing during the period beginning on the first day
after receipt of a claim which CCC has determined to be in good order
and ending on the day on which payment is made on such claim for loss.
(r) Notice to participants. A notice issued by CCC by public press
release which serves one or more of the following functions: to remind
participants of the requirements of the program; to clarify the program
requirements contained in the regulations in this subpart in a manner
which is not inconsistent with the regulations; to instruct exporters
to provide additional information in applications for payment
guarantees under specific country and/or commodity allocations; and to
supplement the provisions of a payment guarantee, in a manner not
inconsistent with the regulations in this subpart, before the
exporter's application for such payment guarantee is approved.
(s) Payment guarantee. An agreement under which CCC, in
consideration of a fee paid, and in reliance upon the statements and
declarations of the exporter, subject to the terms set forth in the
written guarantee, this subpart, and any applicable Program
Announcements or Notices to Participants, agrees to pay the exporter or
the exporter's assignee in the event of a default by an importer under
the importer obligation.
(t) Port value. (1) Where CCC announces coverage on a FAS or FOB
basis and:
(i) Where the commodity is sold on a FAS or FOB basis, U.S. point
of export, the value, FAS or FOB basis, U.S. point of export, of the
export sale, including the upward tolerance, if any, as provided by the
export sales contract, reduced by the value of any discounts or
allowances granted to the importer in connection with such sale; or
(ii) Where the commodity was sold on a CFR or CIF basis, point of
entry, the value of the export sale, FAS or FOB, point of export,
including the upward tolerance, if any, as provided by the export sales
contract, is measured by the CFR or CIF value of the agricultural
commodity less the value of ocean freight and, in the case of CIF
sales, less the value of marine and war risk insurance, reduced by the
value of any discounts or allowances granted to the importer in
connection with the sale of the commodity; or
(2) Where CCC announces coverage on a CFR or CIF basis and where
the commodity was sold on CFR or CIF basis, point of entry, the total
value of the export sale, CFR or CIF basis, point of entry, including
the upward tolerance, if any, as provided by the export sales contract,
reduced by the value of any discounts or allowances granted to the
importer in connection with the sale of the commodity.
(3) When a CFR or CIF commodity export sale involves the
performance of non-freight services to be performed outside the United
States (e.g., services such as bagging bulk cargo), which are not
normally included in ocean freight contracts, the value of such
services and any related materials not exported from the U.S. with the
commodity must also be deducted from the CFR or CIF sales price in
determining the port value.
(u) Program announcement. An announcement issued by CCC which
provides information on specific country and commodity allocations and
may identify eligible agricultural commodities and countries, length of
credit periods which may be covered, specify dollar limitations for CCC
exposure in particular countries, and include other information and
requirements.
(v) SCGP. The Supplier Credit Guarantee Program described by this
subpart.
(w) United States or U.S. All of the 50 states, the District of
Columbia, and the territories and possessions of the United States.
(x) U.S. agricultural commodity. (1) With respect to any
agricultural commodity other than a product of an agricultural
commodity, an agricultural commodity entirely produced in the United
States; and
(2) With respect to a product of an agricultural commodity:
(i) A product all of the agricultural components of which are
entirely produced in the United States; or
(ii) Any other product the Secretary may designate that contains
any agricultural component that is not entirely produced in the United
States if:
(A) Such component is an added, de minimis component;
(B) Such component is not commercially produced in the United
States; and
(C) There is no acceptable substitute for such component that is
commercially produced in the United States (For purposes of this
paragraph, fish entirely produced in the United States include fish
harvested by a documented fishing vessel as defined in title 46, United
States Code, in waters that are not waters [including the territorial
sea] of a foreign country).
(y) USDA. United States Department of Agriculture.
Sec. 1493.420 Information required for program participation.
Before CCC will accept an application for a payment guarantee under
the SCGP, the applicant must qualify for participation in this program.
Based upon the information submitted by the applicant and other
publicly available sources, CCC will determine whether the applicant is
eligible for participation in the program.
(a) Submission of documentation. In order to qualify for
participation in the SCGP, an applicant must submit to CCC, at the
address specified in the Contacts P/R, the following information:
[[Page 37030]]
(1) The address of the applicant's headquarters office and the name
and address of an agent in the U.S. for the service of process;
(2) The legal form of doing business of the applicant, e.g., sole
proprietorship, partnership, corporation, etc.;
(3) The place of incorporation of the applicant, if the applicant
is a corporation;
(4) The name and U.S. address of the office(s) of the applicant,
and statement indicating whether the applicant is a U.S. domestic
corporation, a foreign corporation or another foreign entity. If the
applicant has multiple offices, the address included in the information
should be that which is pertinent to the particular export sale
contemplated by the applicant under this subpart;
(5) A certified statement describing the applicant's participation,
if any, during the past three years in U.S. Government programs,
contracts or agreements; and
(6) A certification that: ``I certify, to the best of my knowledge
and belief, that neither [name of applicant] nor any of its principals
has been debarred, suspended, or proposed for debarment from
contracting with or participating in programs administered by any U.S.
Government agency. [``Principals,'' for the purpose of this
certification, means officers; directors; owners of five percent or
more of stock; partners; and persons having primary management or
supervisory responsibility within a business entity (e.g., general
manager, plant manager, head of a subsidiary division, or business
segment, and similar positions).] I further agree that, should any such
debarment, suspension, or notice of proposed debarment occur in the
future, [name of applicant] will immediately notify CCC.''
(b) Previous qualification. Any exporter that is qualified under
subpart B, Sec. 1493.30 is qualified under this section to submit
applications for a SCGP payment guarantee, and the information provided
by the exporter pursuant to Sec. 1493.30 will be deemed to also have
been provided under this section. Each application must include the
statement required by Sec. 1493.430(a)(17) incorporating the
certifications of Sec. 1493.440, including the certification in
Sec. 1493.440(e) that the information previously provided pursuant to
Sec. 1493.420 has not changed. If the exporter is unable to provide
such certification, such exporter must update the information required
by paragraph (a) of this section which has changed and certify that the
remainder of the information previously provided has not changed.
(c) Additional submissions. CCC will promptly notify applicants
that have submitted information required by this section whether they
have qualified to participate in the program. Any applicant failing to
qualify will be given an opportunity to provide additional information
for consideration by CCC.
(d) Ineligibility for program participation. An applicant may be
ineligible to participate in the SCGP if:
(1) Such applicant is currently debarred, suspended, or proposed
for debarment from contracting with or participating in any program
administered by a U.S. Government agency; or
(2) Such applicant is controlled or can be controlled, in whole or
in part, by any individuals or entities currently debarred, suspended
or proposed for debarment from contracting with or participating in
programs administered by any U.S. Government agency.
Sec. 1493.430 Application for a payment guarantee.
(a) A firm export sale must exist before an exporter may submit an
application for a payment guarantee. An application for a payment
guarantee may be submitted in writing or may be made by telephone, but,
if made by telephone, it must be confirmed in writing to the office
specified in the Contacts P/R. An application must identify the name
and address of the exporter and include the following information:
(1) Name of the destination country;
(2) Name and address of the importer;
(3) Name and address of the intervening purchaser, if any, and a
statement that the commodity will be shipped directly to the importer
in the destination country;
(4) Date of sale;
(5) Exporter's sale number;
(6) Delivery period as agreed between the exporter and the
importer;
(7) A full description of the commodity (including packaging, if
any);
(8) Mean quantity, contract loading tolerance and, if the exporter
chooses, a request for CCC to reserve coverage up to the maximum
quantity permitted by the contract loading tolerance;
(9) Unit sales price of the commodity, or a mechanism to establish
the price, as agreed between the exporter and the importer. If the
commodity was sold on the basis of CFR or CIF, the actual (if known at
the time of application) or estimated value of freight and, in the case
of sales made on a CIF basis, the actual (if known at the time of
application) or estimated value of marine and war risk insurance, must
be specified;
(10) Description and value of discounts and allowances, if any;
(11) Port value (includes upward loading tolerance, if any);
(12) Guaranteed value;
(13) Guarantee fee;
(14) The term length for the credit being extended and the
intervals between principal payments for each shipment to be made under
the export sale;
(15) A statement indicating whether any portion of the export sale
for which the exporter is applying for a payment guarantee is also
being used as the basis for an application for participation in any of
the following CCC or USDA export programs: Export Enhancement Program,
Dairy Export Incentive Program, Sunflowerseed Oil Assistance Program,
or Cottonseed Oil Assistance Program. The number of the Agreement
assigned by USDA under one of these programs should be included, as
applicable;
(16) Other information as specified in Program Announcements and
Notices to Participants, as applicable; and
(17) The exporter's statement, ``ALL SECTION 1493.440
CERTIFICATIONS ARE BEING MADE IN THIS APPLICATION'' which, when
included in the application by the exporter, will constitute a
certification that it is in compliance with all the requirements set
forth in Sec. 1493.440.
(b) An application for a payment guarantee may be approved as
submitted, approved with modifications agreed to by the exporter, or
rejected by the GSM. In the event that the application is approved, the
GSM will cause a payment guarantee to be issued in favor of the
exporter. Such payment guarantee will become effective at the time
specified in Sec. 1493.450(b). If, based upon a price review, the unit
sales price of the commodity does not fall within the prevailing
commercial market level ranges, as determined by CCC, the application
will not be approved.
(c) Ineligible exporter. An exporter will be ineligible to obtain a
payment guarantee if such exporter:
(1) Directly or indirectly owns or controls the importer;
(2) Is directly or indirectly owned or controlled by the importer;
or
(3) Is directly or indirectly owned or controlled by a person(s) or
entity(ies) which also owns or controls the importer.
Sec. 1493.440 Certification requirements for a payment guarantee.
By providing the statement in Sec. 1493.430(a)(17), the exporter is
[[Page 37031]]
certifying that the information provided in the application is true and
correct and, further, that all requirements set forth in this section
have been or will be met. The exporter will be required to provide
further explanation or documentation with regard to applications that
do not include this statement. The exporter, in submitting an
application for a payment guarantee and providing the statement set
forth in Sec. 1493.430(a)(17), certifies that:
(a) The agricultural commodity or product to be exported under the
payment guarantee is a United States agricultural commodity or a
product thereof, as defined in Sec. 1493.410(x);
(b) There have not been and will not be any corrupt payments or
extra sales services or other items extraneous to the transaction
provided, financed, or guaranteed in connection with the transaction,
and that the transaction complies with applicable United States law;
(c) If the agricultural commodity is vegetable oil or a vegetable
oil product, that none of the agricultural commodity or product has
been or will be used as a basis for a claim of a refund, as drawback,
pursuant to section 313 of the Tariff Act of 1930, 19 U.S.C. 1313, of
any duty, tax or fee imposed under Federal law on an imported commodity
or product;
(d) No person or selling agency has been employed or retained to
solicit or secure the payment guarantee, and that there is no agreement
or understanding for a commission, percentage, brokerage, or contingent
fee, except in the case of bona fide employees or bona fide established
commercial or selling agencies maintained by the exporter for the
purpose of securing business; and
(e) The information provided pursuant to Sec. 1493.420 has not
changed, the exporter still meets all of the qualification requirements
of Sec. 1493.420, and the exporter will immediately notify CCC if there
is a change of circumstances which would cause it to fail to meet such
requirements. If the exporter breaches or violates these certifications
with respect to a SCGP payment guarantee, CCC will have the right,
notwithstanding any other rights provided under this subpart, to annul
guarantee coverage for any commodities not yet exported and/or to
proceed against the exporter.
Sec. 1493.450 Payment guarantee.
(a) CCC's obligation. The payment guarantee will provide that CCC
agrees to pay the exporter or the exporter's assignee an amount not to
exceed the guaranteed value, plus eligible interest, in the event that
the importer fails to pay under the importer obligation. Payment by CCC
will be in U.S. dollars.
(b) Period of guarantee coverage. The payment guarantee will apply
to a credit period not exceeding 180 days beginning either on the
date(s) of export(s) or from the date when interest begins to accrue
whichever is earlier, and will continue during the credit term
specified in the payment guarantee or amendments thereto. However, the
payment guarantee becomes effective on the date(s) of export(s) of the
agricultural commodities or products thereof specified in the
exporter's application for a payment guarantee.
(c) Terms of the CCC payment guarantee. The terms of CCC's coverage
will be set forth in the payment guarantee, as approved by CCC, and
will include the provisions of this subpart, which may be supplemented
by any Program Announcements and/or Notices to Participants in effect
at the time the payment guarantee is approved by CCC.
(d) Final date to export. The final date to export shown on the
payment guarantee will be one month, as determined by CCC, after the
contractual deadline for shipping.
(e) Reserve coverage for loading tolerances. The exporter may apply
for a payment guarantee and, if coverage is available, pay the
guarantee fee, based at least on, the amount of the lower loading
tolerance of the export sales contract; however, the exporter may also
request that CCC reserve additional guarantee coverage to accommodate
up to the amount of the upward loading tolerance specified in the
export sales contract. If such additional guarantee coverage is
available at the time of application and CCC determines to make such
reservation, it will so indicate to the exporter. In the event that the
exporter ships a quantity greater than the amount on which the
guarantee fee was paid (i.e., lower loading tolerance), it may obtain
the additional coverage from CCC, up to the amount of the upward
loading tolerance, by filing for an amendment to the payment guarantee,
and by paying the additional amount of fee applicable. If such
amendment to the payment guarantee is not filed with CCC by the
exporter within 30 days after the date of the last export against the
sales contract, CCC may determine not to reserve the coverage
originally set aside for the exporter.
(f) Ineligible exports. Commodities with a date of export prior to
the date of receipt by CCC of the exporter's telephonic or written
application for a payment guarantee, or with a date of export made
after the final date for export shown on the payment guarantee or any
amendments thereof, are ineligible for guarantee coverage under this
subpart, except where it is determined by the GSM to be in the best
interests of CCC to provide guarantee coverage on such commodities.
(g) Foreign agricultural component. CCC may approve payment
guarantees under this subpart only in connection with sales of United
States agricultural commodities as defined in Sec. 1493.410(x). CCC may
not provide guarantee coverage under this subpart on credit extended
for the value of any foreign agricultural component.
(h) Additional requirements. The payment guarantee may contain such
additional terms, conditions, and limitations as deemed necessary or
desirable by the GSM. Such additional terms, conditions or
qualifications, as stated in the payment guarantee are binding on the
exporter or the exporter's assignee.
(i) Amendments. A request for an amendment of a payment guarantee
may be submitted only by the exporter (with the concurrence of the
assignee, if any). CCC will consider such a request only if the
amendment sought is consistent with this subpart and any applicable
Program Announcements and Notices to Participants. Amendments may
include, but will not be limited to, a change in the credit period and
an extension of time to export. Any amendment to the payment guarantee,
particularly those that result in an increase in CCC's liability under
the payment guarantee, may result in an increase in the guarantee fee.
(Technical corrections or corrections of a clerical error which may be
submitted by the exporter or the exporter's assignee are not viewed as
amendments.)
Sec. 1493.460 Guarantee rates and fees.
(a) Guarantee fee rates. The current payment guarantee fee rate(s)
will be available by Program Announcement.
(b) Calculation of fee. The guarantee fee will be computed by
multiplying the guaranteed value by the guarantee fee rate.
(c) Payment of fee. The exporter shall remit, with his written
application, the full amount of the guarantee fee. Applications will
not be approved until the guarantee fee has been received by CCC. The
exporter's check for the guarantee fee shall be made payable to CCC and
mailed or delivered by courier to the office specified in the Contacts
P/R.
(d) Refunds of fee. Guarantee fees paid in connection with approved
applications will ordinarily not be refundable. CCC's approval of the
[[Page 37032]]
application will be final and refund of the guarantee fee will not be
made after approval unless the GSM determines that such refund will be
in the best interest of CCC. If the application for a payment guarantee
is not approved or is approved only for a part of the guarantee
coverage requested, a full or pro rata refund of the fee remittance
will be made.
Sec. 1493.470 Importer obligation.
A promissory note(s) must evidence the unconditional obligation of
the importer to pay the exporter. All payment terms shall be consistent
with the credit terms of the applicable payment guarantee. Each
promissory note(s) shall be a fixed rate note or a floating rate note
as set forth in paragraphs (a) or (b) of this section. The promissory
note(s) must contain the provisions set forth in paragraphs (a) or (b)
of this section and may include, without prior written consent of CCC
one or more of the provisions set forth in paragraph (d) of this
section. No other form of promissory note may be used. Program
participants should also note the additional instructions set forth in
paragraph (c) of this section.
(a) Fixed Rate Note.
Name of Maker
PROMISSORY NOTE
U.S. $----------, 199--
FOR VALUE RECEIVED, [Name and address of Importer] (``Maker'')
by this promissory note (``Note'') hereby unconditionally promises
to pay to the order of [Name and address of exporter] (``Lender''),
or its successor(s) or assign(s), at [Name and address of U.S.
financial institution] the principal sum of [amount in words] U.S.
dollars ($----------) as hereinafter provided [if interest is
payable add: and to pay interest on the principal balance hereof
from time to time outstanding, as hereinafter provided at the rate
of percent (------%) per annum].
Interest shall be calculated for actual time elasped from
(date). Interest shall be based on a (360 or 365 day year).
Principal and interest shall be paid as follows:
Date $ principal due Interest due, if any
------------------ ------------------------ ----------------------
------------------ ------------------------ ----------------------
All principal and interest payable under this Note are payable
in lawful money of the United States of America in immediately
available funds without deduction for or on account of any present
or future taxes, duties, or other charges levied or imposed on this
Note or the proceeds or holder hereof by the Government of [Country
of Maker] or any political subdivision or taxing authority thereof.
The Maker hereby waives deiligence, presentment, demand, protest
and notice of protest, demand and dishonor, and nonpayment of this
Note.
No delay or omission on the part of the holder here in
exercising any right hereunder shall operate as a waiver of such
right or of any other right under this Note, nor shall any waiver on
one occasion be construed as a bar to or waiver of any such right on
any future occasion. No waiver shall be effective unless in writing
and signed by the holder.
This Note shall be governed by and construed in accordance with
the laws of the State of [Specify a State reasonably related to the
transaction], United States of America.
Name of Maker
By:--------------------------------------------------------------------
Name:------------------------------------------------------------------
(Print)
Title:-----------------------------------------------------------------
(b) Floating Rate Note.
Name of Maker
PROMISSORY NOTE
U.S. $----------, 199--
FOR VALUE RECEIVED, [Name and address of Importer] (``Maker'')
by this promissory note (``Note'') hereby unconditionally promises
to pay to the order of [Name and address of exporter] (``Lender''),
or its successor(s) or assign(s), at [Name and address of U.S.
financial institution] the principal sum of [amount in words] U.S.
dollars ($----------) in installments as hereinafter provided and to
pay interest on the principal balance(s) hereof from time to time
outstanding, with interest accruing for actual days elapsed from
(date) calculated on the basis of a (360 or 365) day year, at the
rate to be determined by (adding) (subtracting)----percent (------%)
per annum (to) (from) the annual rate of interest [Specify method or
source for calculating rate of interest and adjustment procedure].
Principal and interest shall be paid as follows:1
Principal due date $ principal due Interest due date
---------------------- ---------------------- --------------------
---------------------- ---------------------- --------------------
Interest date due
All principal and interest payable under this Note are payable
in lawful money of the United States of America in immediately
available funds without deduction for or on account of any present
or future taxes, duties, or other charges levied or imposed on this
Note or the proceeds or holder hereof by the Government of [Country
of Maker] or any political subdivision or taxing authority thereof.
The Maker hereby waives diligence, presentment, demand, protest
and notice of protest, demand and dishonor, and nonpayment of this
Note.
No delay or omission on the part of the holder here in
exercising any right hereunder shall operate as a waiver of such
right or of any other right under this Note, nor shall any waiver on
one occasion be construed as a bar to or waiver of any such right on
any furter occasion. No waiver shall be effective unless in writing
and signed by the holder.
This Note shall be governed by and construed in accordance with
the laws of the State of [Specify a State reasonably related to the
transaction], United States of America.
Name of Maker
By:--------------------------------------------------------------------
Name:------------------------------------------------------------------
(Print)
Title:-----------------------------------------------------------------
(c) Aditional instructions. When preparing the promissory note,
program participants should make certain of the following:
(1) In order to ensure that the payment guarantee will cover any
defaults, the lender must ensure that the payment schedule is
consistent with the credit terms specified in the payment guarantee.
For example, the last payment due must be within the actual terms of
the guarantee coverage. The coverage expiration date is based on the
date of export as defined in Sec. 1493.401(d) or the date when interest
begins to accrue, whichever is earlier (Sec. 1493.450(b));
(2) Personal makers should sign in their personal capacities only.
Corporate makers should sign only in their corporate capacities with
proper reference to their corporate titles; and
(3) In a floating rate note the method or source for calculating
the annual rate of interest and any applicable adjustment procedure is
adequately described. An example of an appropriate description of the
source would be: ``the annual rate of interest announced by (specify U.
S. commercial bank) as its prime rate, such rate to be adjusted on each
date any change announced by that bank becomes effective.''
(d) Optional provisions. The following optional provisions may be
incorporated into the promissory note:
(1) In the event that any amount of the principal hereof or
interest on this Note is not paid when due, the Maker, to the extent
permitted by applicable law, shall pay on demand interest on such
unpaid amount from the date such amount was due to the date such amount
is paid in full at the rate of ------ percent per annum (``late
interest''), but in no event to exceed the maximum rate permitted by
applicable law;
(2) Each payment hereunder shall be credited first to late interest
then due and payable, then to ordinary interest then due and payable,
and the
[[Page 37033]]
remainder thereof, if any, to the unpaid principal balance of this
Note;
(3) The Maker shall have the right, at any time or from time to
time, to prepay all or any part of the principal hereof, provided any
accured interest on amount prepaid is also paid, and any such
prepayment shall be applied to the remaining principal installments in
the inverse order of their maturities;
(4) Upon default in the prompt and full payment of any installment
of principal or interest on this Note, the entire outstanding principal
amount hereof and interest on the Note to the date of payment shall
immediately become due and payable at the option and upon the demand of
the holder hereof; and/or,
(5) Maker further agrees to pay all reasonable costs of collection,
including reasonable attorneys' fees (inclusive of any appellate or
bankruptcy proceedings) in case any payment of principal or interest is
not paid by the due date thereof, whether suit be brought or not.
Sec. 1493.480 Evidence of export.
(a) Report of export. The exporter is required to provide CCC an
evidence of export report for each shipment made under the payment
guarantee. This report must include the following:
(1) Payment guarantee number;
(2) Date of export;
(3) Exporter's sale number;
(4) Exported value;
(5) Quantity;
(6) A full description of the commodity exported;
(7) Unit sales price received for the commodity exported and the
basis (e.g., FOB, CFR, CIF). Where the unit sales price at export
differs from the unit sales price indicated in the exporter's
application for a payment guarantee, the exporter is also required to
submit a statement explaining the reason for the difference;
(8) Description and value of discounts and allowances, if any;
(9) Number of the Agreement assigned by USDA under any other
program if any portion of the export sale was also approved for
participation in any of the following CCC or USDA export programs:
Export Enhancement Program, Dairy Export Incentive Program,
Sunflowerseed Oil Assistance Program, or Cottonseed Oil Assistance
Program; and
(10) The exporter's statement, ``ALL SECTION 1493.490
CERTIFICATIONS ARE BEING MADE IN THIS EVIDENCE OF EXPORT'' which, when
included in the evidence of export by the exporter, will constitute a
certification that it is in compliance with all the requirements set
forth in Sec. 1493.490.
(b) Time limit for submission of evidence of export. The exporter
must provide a written report to the office specified in the Contacts
P/R within 60 calendar days if the export was by rail or truck; or 30
calendar days if the export was by any other carrier. The time period
for filing a report of export will commence upon each date of export of
the commodity covered under a payment guarantee. If the evidence of
export report is not received by CCC within the time period for filing,
the payment guarantee will become null and void only if and only to the
extent that failure to make timely filing resulted, or would be likely
to result, in:
(1) Significant financial harm to CCC;
(2) The undermining of an essential regulatory purpose of the
program;
(3) Obstruction of the fair administration of the program; or
(4) A threat to the integrity of the program. The time limit for
submission of an evidence of export report may be extended if such
extension is determined by the GSM to be in the best interests of CCC.
(c) Export sales reporting. Exporters may have a mandatory
reporting responsibility under Section 602 of the Agricultural Trade
Act of 1978 (7 U.S.C. 5712), as amended by Section 1531 of the Food,
Agriculture, Conservation, and Trade Act of 1990 for exports of wheat
and wheat flour, feed grains, oilseeds, cotton, and other agricultural
commodities and products thereof.
Sec. 1493.490 Certification requirements for evidence of export.
By providing the statement contained in Sec. 1493.480(a)(10), the
exporter is certifying that the information provided in the evidence of
export report is true and correct and, further, that all requirements
set forth in this section have been or will be met. The exporter will
be required to provide further explanation or documentation with regard
to reports that do not include this statement. If the exporter breaches
or violates these certifications with respect to a SCGP payment
guarantee, CCC will have the right, notwithstanding any other rights
provided under this subpart, to annul guarantee coverage for any
commodities not yet exported and/or to proceed against the exporter.
The exporter, in submitting the evidence of export and providing the
statement set forth in Sec. 1493.480(a)(10), certifies that:
(a) The agricultural commodity or product exported under a payment
guarantee is a United States agricultural commodity or product thereof,
as defined in Sec. 1493.410(x);
(b) Agricultural commodities of the grade, quality and quantity
called for in the exporter's sales contract with the importer have been
exported to the country specified in the payment guarantee;
(c) There is an importer obligation as defined in Sec. 1493.410(n)
to cover the exported value of the commodity exported;
(d) There have not been and will not be any corrupt payments or
extra sales services or other items extraneous to the transaction
provided, financed, or guaranteed in connection with the transaction,
and that the transaction complies with applicable United States law;
and
(e) The information provided pursuant to Sec. 1493.420 has not
changed, the exporter still meets all of the qualification requirements
of Sec. 1493.420 and the exporter will immediately notify CCC if there
is a change of circumstances which would cause it to fail to meet such
requirements.
Sec. 1493.500 Proof of entry.
(a) Diversion. The diversion of commodities covered by a payment
guarantee to a country other than that shown on the payment guarantee
is prohibited, unless expressly authorized by the GSM.
(b) Records of proof of entry. Exporters must obtain and maintain
records of an official or customary commercial nature and grant
authorized USDA officials access to such documents or records as may be
necessary to demonstrate the arrival of the agricultural commodities
exported in connection with the SCGP in the country that was the
intended country of destination of such commodities. Records
demonstrating proof of entry must be in English or be accompanied by a
certified or other translation acceptable to CCC. Records acceptable to
meet this requirement include an original certification of entry signed
by a duly authorized customs or port official of the importing country,
by the importer, by an agent or representative of the vessel or
shipline which delivered the agricultural commodity to the importing
country, or by a private surveyor in the importing country, or other
documentation deemed acceptable by the GSM showing:
(1) That the agricultural commodity entered the importing country;
(2) The identification of the export carrier;
(3) The quantity of the agricultural commodity;
(4) The kind, type, grade and/or class of the agricultural
commodity; and
(5) The date(s) and place(s) of unloading of the agricultural
commodity in the importing country. [Records of
[[Page 37034]]
proof of entry need not be submitted with a claim for loss, except as
may be provided in Sec. 1493.510(b)(4)(ii).]
Sec. 1493.510 Notice of default and claims for loss.
(a) Notice of default. If the importer fails to make payment
pursuant to the terms of the importer obligation, the exporter or the
exporter's assignee must submit a notice of default to CCC as soon as
possible, but not later than 10 calendar days after the date that
payment was due from the importer (the due date). A notice of default
must be submitted in writing to the Treasurer, CCC, at the address
specified in the Contacts P/R. If the exporter or the exporter's
assignee fails to promptly notify CCC of defaults in accordance with
this paragraph, CCC may make the payment guarantee null and void with
respect to any payment(s) applicable to such default. This time limit
may be extended only under extraordinary circumstances and if such
extension is determined by the Controller, CCC, to be in the best
interests of CCC. The notice of default must include:
(1) Payment guarantee number;
(2) Name of the country;
(3) Name of the defaulting importer;
(4) Due date;
(5) Total amount of the defaulted payment due, indicating
separately the amounts for principal and interest;
(6) Date of importer's refusal to pay, if applicable; and
(7) Reason for importer's refusal to pay, if known.
(b) Filing a claim for loss. A claim for a loss by the exporter or
the exporter's assignee will not be paid if it is made later than six
months from the due date of the defaulted payment. A claim for loss
must be submitted in writing to the Treasurer, CCC, at the address
specified in the Contacts P/R. The claim for loss must include the
following information and documents:
(1) Payment guarantee number;
(2) A certification that the scheduled payment has not been
received;
(3) A certification of the amount of accrued interest in default,
the date interest began to accrue, and the interest rate on the
importer obligation applicable to the claim;
(4) A copy of each of the following documents, with a cover
document containing a signed certification by the exporter or the
exporter's assignee that each page of each document is a true and
correct copy:
(i) The importer obligation;
(ii) Depending upon the method of shipment, the negotiable ocean
carrier or intermodal bill(s) of lading signed by the shipping company
with the onboard ocean carrier date for each shipment, the airway bill,
or, if shipped by rail or truck, the entry certificate or similar
document signed by an official of the importing country;
(iii) (A) The exporter's invoice showing, as applicable, the FAS,
FOB, CFR or CIF values; or
(B) If there was an intervening purchaser, both the exporter's
invoice to the intervening purchaser and the intervening purchaser's
invoice to the importer;
(iv) An instrument, in form and substance satisfactory to CCC,
subrogating to CCC the respective rights of the exporter and the
exporter's assignee, if applicable, to the amount of payment in default
under the applicable export sale. The instrument must reference the
applicable importer obligation; and
(v) A copy of the report(s) of export previously submitted by the
exporter to CCC pursuant to Sec. 1493.480(a).
(c) Subsequent claims for defaults on installments. If the initial
claim is found in good order, the exporter or an exporter's assignee
need only provide all of the required claims documents with the initial
claim relating to a covered transaction. For subsequent claims relating
to failure of the importer to make scheduled installments on the same
export shipment, the exporter or the exporter's assignee need only
submit to CCC a notice of such failure containing the information
stated in paragraph (b)(1), (2), and (3) of this section; an instrument
of subrogation as per paragraph (b)(4)(iv) of this section, and
including the date the original claim was filed with CCC.
Sec. 1493.520 Payment for loss.
(a) Determination of CCC's liability. Upon receipt in good order of
the information and documents required under Sec. 1493.510, CCC will
determine whether or not a loss has occurred for which CCC is liable
under the applicable payment guarantee, this subpart and any applicable
supplemental Program Announcements and Notices to Participants. If CCC
determines that it is liable to the exporter and/or the exporter's
assignee, CCC will pay the exporter or the exporter's assignee in
accordance with paragraphs (b) and (c) of this section.
(b) Amount of CCC's liability. CCC's maximum liability for any
claims for loss submitted with respect to any payment guarantee, not
including any late interest payments due in accordance with paragraph
(c) of this section, will be limited to the lesser of:
(1) The guaranteed value as stated in the payment guarantee, plus
eligible interest; or
(2) The guaranteed percentage (as indicated in the payment
guarantee) of the exported value indicated in the evidence of export,
plus eligible interest.
(c) Late interest payment. If a claim is not paid within one day of
receipt of a claim which CCC has determined to be in good order, late
interest will accrue in favor of the exporter or the exporter's
assignee beginning with the first day after the day of receipt of a
claim found by CCC to be in good order and continuing until and
including the date that payment is made by CCC. Late interest will be
paid on the guaranteed amount, as determined by paragraphs (b)(1) and
(2) of this section, and will be calculated based on the average
investment rate of the most recent Treasury 91-day bill auction as
announced by the Department of Treasury as of the due date.
(d) Accelerated payments. CCC will pay claims only for losses on
amounts not paid as scheduled. CCC will not pay claims for amounts due
under an accelerated payment clause in the export sales contract or the
importer obligation unless it is determined to be in the best interests
of CCC by the Controller, CCC. Notwithstanding the foregoing, CCC at
its option may declare the entire amount of the unpaid balance, plus
accrued interest, in default and make payment to the exporter or the
exporter's assignee in addition to such other claimed amount as may be
due from CCC.
(e) Action against the assignee. Notwithstanding any other
provision in this subpart to the contrary, with regard to commodities
covered by a payment guarantee, CCC will not hold the assignee
responsible or take any action or raise any defense against the
assignee for any action, omission, or statement by the exporter of
which the assignee has no knowledge, provided that:
(1) The exporter complies with the reporting requirements under
Sec. 1493.480 and Sec. 1493.490, excluding post-export adjustments
(i.e., corrections to evidence of export reports); and
(2) The exporter or the exporter's assignee furnishes the
statements and documents specified in Sec. 1493.510.
Sec. 1493.530 Recovery of losses.
(a) Notification. Upon payment of loss to the exporter or the
exporter's assignee, CCC will notify the importer of CCC's rights under
the subrogation agreement to recover all moneys in default.
[[Page 37035]]
(b) Receipt of monies. (1) In the event that monies for a defaulted
payment are recovered by the exporter or the exporter's assignee from
the importer or any other source whatsoever, such monies shall be
immediately paid to the Treasurer, CCC. If such monies are not received
by CCC within 15 business days from the date of recovery by the
exporter or the exporter's assignee, the exporter or the exporter's
assignee will owe to CCC interest from the date of recovery to the date
of receipt by CCC. This interest will be calculated based on the latest
average investment rate of the most recent Treasury 91-day bill
auction, as announced by the Department of Treasury, in effect on the
date of recovery and will accrue from such date to the date of payment
by the exporter or the exporter's assignee to CCC. Such interest will
be charged only on CCC's share of the recovery.
(2) If CCC recovers monies that should be applied to a payment
guarantee for which a claim has been paid by CCC, CCC will pay the
holder of the payment guarantee its pro rata share immediately,
provided that the required information necessary for determining pro
rata distribution has been furnished. If payment is not made by CCC
within 15 business days from the date of recovery or 15 business days
from receiving the required information for determining pro rata
distribution, whichever is later, CCC will pay interest calculated on
the latest average investment rate of the most recent Treasury 91-day
bill auction, as announced by the Department of Treasury, in effect on
the date of recovery and such interest will accrue from such date to
the date of payment by CCC. The interest will apply only to the portion
of the recovery payable to the holder of the payment guarantee.
(c) Allocation of recoveries. Recoveries made by CCC from the
importer, and recoveries received by CCC from the exporter, the
exporter's assignee, or any other source whatsoever, will be allocated
by CCC to the exporter or the exporter's assignee and to CCC on a pro
rata basis determined by their respective interests in such recoveries.
The respective interest of each party will be determined on a pro rata
basis, based on the combined amount of principal and interest in
default. Once CCC has paid out a particular claim under a payment
guarantee, CCC pro rates any collections it receives and shares these
collections proportionately with the holder of the guarantee until both
CCC and the holder of the guarantee have been reimbursed in full.
Appendix A to Sec. 1493.530, Illustration of Pro Rata Allocation of
Recoveries, provides an example of the methodology used by CCC in
applying this paragraph (c).
(d) Liabilities to CCC. Notwithstanding any other terms of the
payment guarantee, the exporter may be liable to CCC for any amounts
paid by CCC under the payment guarantee when and if it is determined by
CCC that the exporter has engaged in fraud, or has been or is in
material breach of any contractual obligation, certification or
warranty made by the exporter for the purpose of obtaining the payment
guarantee or for fulfilling obligations under SCGP. Further, the
exporter's assignee may be liable to CCC for any amounts paid by CCC
under the payment guarantee when and if it is determined by CCC that
the exporter's assignee has engaged in fraud or otherwise violated
program requirements.
(e) Good faith. The violation by an exporter of the certifications
in Sec. 1493.440(b) and Sec. 1493.490(d) or the failure of an exporter
to comply with the provisions of Sec. 1493.500 or Sec. 1493.540(e) will
not affect the validity of any payment guarantee with respect to an
assignee which had no knowledge of such violation or failure to comply
at the time such exporter applied for the payment guarantee or at the
time of assignment of the payment guarantee.
(f) Cooperation in recoveries. Upon payment by CCC of a claim to
the exporter or the exporter's assignee, the exporter or the exporter's
assignee will cooperate with CCC to effect recoveries from the
importer.
Appendix A to Sec. 1493.530--Illustration of Pro Rata Allocation of
Recoveries
The following example illustrates CCC's policy, as set forth in
Sec. 1493.530(c), regarding pro rata sharing of recoveries made for
claims filed under the SCGP. A typical case might be as follows:
1. The U.S. exporter enters into a $200,000, 180-day credit
arrangement with the importer calling for two equal payments of
principal and two equal payments of interest at a rate of 10 percent
per annum and a penalty interest rate of 12 percent per annum (basis
360 days) on overdue amounts until the overdue amount is paid.
(Basis for interest calculation may be 360 or 365 days.)
2. The importer fails to make the final principal payment of
$100,000 and an interest payment of $2,500.00, (10% per annum for 90
days on $100,000, basis 360 days), both due on January 31.
3. On February 10, the U.S. exporter files a claim in good order
with CCC.
4. CCC's guarantee states that CCC's maximum liability is
limited to 60 percent of the principal amount due ($60,000) and
interest at a rate of 8 percent per annum (basis 365 days) on 60
percent of the principal outstanding ($1,183.56) (8% per annum for
90 days on $60,000). (CCC's basis for interest calculation is 365
days.)
5. CCC pays the claim on February 22.
6. The average investment rate of the most recent 91-day
Treasury Bill auction average which has been published by the
Department of Treasury in effect on the date of nonpayment by CCC
(January 31) is 7 percent. (CCC's late interest rate.)
Computation of Obligations
Using the above case, CCC's payment to the holder of the payment
guarantee would be computed as follows:
1. CCC's Obligation under the Payment Guarantee:
(a) Principal coverage--(60% $100,000)................. $60,000.00
(b) Interest coverage--(8% per annum for 90 days on $1,183.56
$60,000, basis 365 days).
---------------
$61,183.56
(c) Late interest due from CCC (7% per annum for 11 $129.07
days on $61,183.56, basis 365 days).
---------------
(d) Amount paid by CCC on February 22.................. $61,312.63
2. Importer's obligation under the importer obligation:
(a) Principal due January 31........................... $100,000.00
Interest due January 31 (10% per annum for 90 days $ 2,500.00
on $100,000, basis 360 days).
---------------
Amount owed by importer as of January 31........... $102,500.00
(b) Penalty interest due (12% per annum for 22 days on $751.67
$102,500.00, basis 360 days).
---------------
(c) Amount owed by importer as of February 22.......... $103,251.67
3. Amount of importer's obligation not covered by CCC's payment
guarantee: $41,939.04 ($103,251.67 - $61,312.63).
Computation of Pro Rata Sharing in Recovery of Losses
In establishing each party's respective interest in any recovery
of losses, the total amount due under the importer obligation would
be determined as of the date the claim is paid by CCC (February 22).
Using the above example in which the amount owed by the importer is
$103,251.67, CCC would be entitled to 59.38 percent ($61,312.63
divided by $103,251.67) and the holder of the payment guarantee
would be entitled to 40.62 percent ($41,939.04 divided by
[[Page 37036]]
$103,251.67) of any recoveries of losses after settlement of the claim.
Since in this example, the losses were recovered after the claim has
been paid by CCC, Sec. 1493.530(b) would apply.
Sec. 1493.540 Miscellaneous provisions.
(a) Assignment. (1) The exporter may assign the proceeds which are,
or may become, payable by CCC under a payment guarantee or the right to
such proceeds only to a financial institution in the U.S. The
assignment must cover all amounts payable under the payment guarantee
not already paid, may not be made to more than one party, and may not,
unless approved in advance by CCC, be:
(i) Made to one party acting for two or more parties; or
(ii) Subject to further assignment.
(2) An original and two copies of the written notice of assignment
signed by the parties thereto must be filed by the assignee with the
Treasurer, CCC, at the address specified in the Contacts P/R.
(3) Receipt of the notice of assignment will ordinarily be
acknowledged to the exporter and its assignee in writing by an officer
of CCC. In cases where a financial institution is determined to be
ineligible to receive an assignment, in accordance with paragraph (b)
of this section, CCC will provide notice thereof, to the financial
institution and to the exporter issued the payment guarantee, in lieu
of an acknowledgment of assignment.
(4) The name and address of the assignee must be included on the
written notice of assignment.
(b) Ineligibility of financial institutions to receive an
assignment. A financial institution will be ineligible to receive an
assignment of proceeds which may become payable under a payment
guarantee if, at the time of assignment, such financial institution:
(1) Is not in sound financial condition, as determined by the
Treasurer of CCC;
(2) Owns or controls the entity issuing the importer obligation; or
(3) Is owned or controlled by an entity that owns or controls the
entity issuing the importer obligation.
(c) Ineligibility of financial institutions to receive proceeds. A
financial institution will be ineligible to receive proceeds payable
under a payment guarantee approved by CCC if such financial
institution:
(1) At the time of assignment of a payment guarantee, is not in
sound financial condition, as determined by the Treasurer of CCC;
(2) Owns or controls the entity issuing the importer obligation; or
(3) Is owned or controlled by an entity that owns or controls the
entity issuing the importer obligation.
(d) Alternative satisfaction of payment guarantees. CCC may, with
the agreement of the exporter (or if the right to proceeds payable
under the payment guarantee has been assigned, with the agreement of
the exporter's assignee), establish procedures, terms and/or conditions
for the satisfaction of CCC's obligations under a payment guarantee
other than those provided for in this subpart if CCC determines that
those alternative procedures, terms, and/or conditions are appropriate
in rescheduling the debts arising out of any transaction covered by the
payment guarantee and would not result in CCC paying more than the
amount of CCC's obligation.
(e) Maintenance of records and access to premises. (1) For a period
of five years after the date of expiration of the coverage of a payment
guarantee, the exporter or the exporter's assignee, as applicable, must
maintain and make available all records pertaining to sales and
deliveries of and extension of credit for agricultural commodities
exported in connection with a payment guarantee, including those
records generated and maintained by agents, intervening purchasers, and
related companies involved in special arrangements with the exporter.
The Secretary of Agriculture and the Comptroller General of the United
States, through their authorized representatives, must be given full
and complete access to the premises of the exporter or the exporter's
assignee, as applicable, during regular business hours from the
effective date of the payment guarantee until the expiration of such
five-year period to inspect, examine, audit, and make copies of the
exporter's, exporter's assignee's, agent's, intervening purchaser's, or
related company's books, records and accounts concerning transactions
relating to the payment guarantee, including, but not limited to,
financial records and accounts pertaining to sales, inventory,
processing, and administrative and incidental costs, both normal and
unforeseen. During such period, the exporter or the exporter's assignee
may be required to make available to the Secretary of Agriculture or
the Comptroller General of the United States, through their authorized
representatives, records that pertain to transactions conducted outside
the program, if, in the opinion of the GSM, such records would pertain
directly to the review of transactions undertaken by the exporter in
connection with the payment guarantee.
(2) The exporter must maintain the proof of entry required by
Sec. 1493.500(b), and must provide access to such documentation if
requested by the Secretary of Agriculture or his authorized
representative for the five-year period specified in paragraph (e)(1)
of this section.
(f) Responsibility of program participants. It is the
responsibility of all program participants to review, and fully
acquaint themselves with, all regulations, Program Announcements, and
Notices to Participants issued pursuant to this subpart. Applicants for
payment guarantees are hereby on notice that they will be bound by any
terms contained in applicable Program Announcements or Notices to
Participants issued prior to the date of approval of a payment
guarantee.
(g) Submission of documents by principal officers. All required
submissions, including certifications, applications, reports, or
requests (i.e., requests for amendments), by exporters or exporters'
assignees under this subpart must be signed by a principal or officer
of the exporter or exporter's assignee or their authorized designee(s).
In cases where the designee is acting on behalf of the principal or the
officer, the signature must be accompanied by: wording indicating the
delegation of authority or, in the alternative, by a certified copy of
the delegation of authority; and the name and title of the authorized
person or officer. Further, the exporter or exporter's assignee must
ensure that all information/reports required under the regulations in
this subpart are submitted within the required time limits. If
requested in writing, CCC will acknowledge receipt of a submission by
the exporter or the exporter's assignee. If acknowledgment of receipt
is requested, the exporter or exporter's assignee must submit an extra
copy of each document and a stamped self-addressed envelope for return
by U.S. mail. If courier services are desired for the return receipt,
the exporter or exporter's assignee must also submit a self-addressed
courier service order which includes the recipient's billing code for
such service.
(h) Officials not to benefit. No member of or delegate to Congress,
or Resident Commissioner, shall be admitted to any share or part of the
payment guarantee or to any benefit that may arise therefrom, but this
provision shall not be construed to extend to the payment guarantee if
made with a corporation for its general benefit.
(i) OMB control number assigned pursuant to the Paperwork Reduction
Act. The information collection requirements contained in this part (7
[[Page 37037]]
CFR Part 1493) have been submitted to the Office of Management and
Budget (OMB) for review under the Paperwork Rduction Act of 1980.
Signed this 19th day of May, 1995 at Washington, DC.
Christopher E. Goldthwait,
General Sales Manager and Vice President, Commodity Credit Corporation.
[FR Doc. 95-17626 Filed 7-18-95; 8:45 am]
BILLING CODE 3410-10-F
