00-29812. Emergency Steel Guarantee Loan Program; Commercial Lending Practices and Re-Opening of Period for Applications

AGENCY:

Emergency Steel Guarantee Loan Board.

ACTION:

Final rule.

SUMMARY:

The Emergency Steel Guarantee Loan Board (Board) is amending the regulations governing the Emergency Steel Guarantee Loan Program (Program). These changes are meant to harmonize certain program requirements with commercial lending practices and to open a second period for the submission of applications. The intent of these changes is to streamline program administration both for the Board and the lenders and to allow submission of additional applications for loan guarantees.

DATES:

This rule is effective November 22, 2000.

FOR FURTHER INFORMATION CONTACT:

Marguerite S. Owen, General Counsel, Emergency Steel Guarantee Loan Board, 1099—14th Street, NW., Suite 2600 East, Washington, DC 20005, [phone].

SUPPLEMENTARY INFORMATION:

On October 27, 1999, the Board published a final rule codifying at Chapter 4, Title 13, Code of Federal Regulations (CFR), regulations implementing the Program, as established in Chapter 1 of Public Law 106-51, the Emergency Steel Loan Guarantee Act of 1999 (64 FR 57932). Since those initial regulations were published the Board has made a number of changes to the regulations meant to conform the regulations to the Guarantee Agreement between the government and the lender and to allow for participations in unguaranteed tranches of loans guaranteed under the Program. Today the Board is making additional changes designed to harmonize certain program requirements with commercial lending practices, streamline program operation, and to open a second period for the submission of applications. In addition, several non-substantive changes are being made to change addresses and allow for certain delegations of authority.

Administrative Law Requirements

Executive Order 12866

This final rule has been determined not to be significant for purposes of Executive Order 12866.

Administrative Procedure Act

This rule is exempt from the rulemaking requirements contained in 5 U.S.C. 553 pursuant to authority contained in 5 U.S.C. 553(a)(2) as it involves a matter relating to loans. As such, prior notice and an opportunity for public comment and a delay in effective date otherwise required under 5 U.S.C. 553 are inapplicable to this rule.

Regulatory Flexibility Act

Because this rule is not subject to a requirement to provide prior notice and an opportunity for public comment pursuant to 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are inapplicable.

Congressional Review Act

This rule has been determined to be not major for purposes of the Congressional Review Act, 5 U.S.C. 801 et seq.

Intergovernmental Review

No intergovernmental consultations with State and local officials are required because the rule is not subject to the provisions of Executive Order 12372 or Executive Order 12875.

Unfunded Mandates Reform Act of 1995

This rule contains no Federal mandates, as that term is defined in the Unfunded Mandates Reform Act, on State, local and tribal governments or the private sector.

Executive Order 13132

This rule does not contain policies having federalism implications requiring preparation of a Federalism Summary Impact Statement.

Executive Order 12630

This rule does not contain policies that have takings implications.

List of Subjects in 13 CFR Part 400

• Administrative practice and procedure
• Freedom of information
• Loan programs—steel
• Reporting and recordkeeping requirements

Dated: November 16, 2000.

Daniel J. Rooney,

Executive Secretary, Emergency Steel Guarantee Loan Board.

For the reasons set forth in the preamble, 13 CFR part 400 is amended as follows:

PART 400—EMERGENCY STEEL GUARANTEE LOAN PROGRAM

1. The authority citation for part 400 is revised to read as follows:

Authority: Pub. L. 106-51, 113 Stat. 252 (15 U.S.C. 1841 note); Pub. L. 106-102, 113 Stat. 1338.

2. Section 400.1 is revised to read as follows:

§ 400.1

Purpose.

This part is issued by the Emergency Steel Guarantee Loan Board pursuant to section 552 of title 5 of the United States Code and the Emergency Steel Loan Guarantee Act of 1999, Chapter 1 of Public Law 106-51, 113 Stat. 252, as amended by section 734 of Public Law 106-102, 113 Stat. 1338, the Gramm-Leach-Bliley Financial Modernization Act (1999).

3. Section 400.103 is revised to read as follows:

§ 400.103

Offices.

The principal offices of the Board are located at 1099—14th Street, NW, Suite 2600 East, Washington, DC 20005.

4. Section 400.105 is amended by adding paragraph (d) to read as follows:

§ 400.105

Staff.

* * * * *

(d) An individual may hold more than one staff position.

5. Section 400.107 is amended by revising paragraph (b)(3) to read as follows:

§ 400.107

Freedom of Information Act.

* * * * *

(b) * * *

(3) Electronic records. Information available under this section that was created on or after November 1, 1996, shall also be available on the Board's website found at http://elb.osec.doc.gov and at http://elb.commerce.gov.

* * * * *

6. Section 400.110 is revised to read as follows:

§ 400.110

Amendments.

The Board's rules in this chapter may be adopted or amended, or new rules may be adopted, only by majority vote of the Board.

7. Section 400.200 is amended by revising paragraph (c) to read as follows:

§ 400.200

Eligible Borrower.

* * * * *

(c) The Lender must provide with its application a letter from at least one lending institution other than the Lender to which the Borrower has applied for financial assistance dated within six months of submission of the application, indicating that the Borrower was denied for substantially the same loan it is now applying for, and the reasons the Borrower was unable to obtain the financing for which it applied. In addition, the Lender applying for a guarantee under this Program must certify that it would not make the loan without the Board's guarantee.

8. Section 400.204 is amended by revising paragraph (c)(2)(ii) to read as follows:

§ 400.204

Loan terms.

* * * * *

(c) * * *

(2) * * *

(ii) A fully perfected and enforceable security interest and/or lien in any other property of the Borrower's pledged to secure the loan, including accessions, replacements, proceeds, or property given by a third party as Security for the loan.

* * * * *

9. Section 400.205 is amended by revising paragraphs (a), (b)(2), and (b)(6) to read as follows:

§ 400.205

Application process.

(a) Application process. An original application and three copies must be received by the Board no later than 5 p.m. EST, April 2, 2001 in the Board's offices at 1099—14th Street, NW, Suite 2600 East, Washington, DC 20005. Applications which have been provided to a delivery service with “delivery guaranteed” before 5 p.m. on April 2, 2001 will be accepted for review if the Applicant can document that the application was provided to the delivery service with delivery to the address listed in this section guaranteed prior to the closing date and time. A postmark is not sufficient to meet this deadline as the application must be received by the required date and time. Applications will not be accepted via facsimile machine transmission or electronic mail.

(b) * * *

(2) The information required for the completion of Form “Environmental Assessment and Compliance Findings for Related Environmental Laws” and attachments, as required by § 400.206(a)(2)(i)(D);

* * * * *

(6) A certification by the Lender that the Lender meets each of the requirements of the Program as set forth in the Act and the Board's rules in this part;

* * * * *

10. Section 400.206 is amended by revising paragraphs (c)(5)(ii)(C) and (c)(5)(iv) to read as follows:

§ 400.206

Environmental requirements.

* * * * *

(c) * * *

(5) * * *

(ii) * * *

(C) Adopt a previously completed EIS reasonably related to the project for which the proceeds of the loan sought to be guaranteed under the Program will be used, as described in 40 CFR 1506.3.

* * * * *

(iv) If, on the basis of an environmental assessment, it is determined that an EIS is not required, a FONSI, as described in 40 CFR 1508.13 will be prepared. The FONSI will include the environmental assessment or a summary of it and be available to the public from the Board. The Executive Director shall maintain a record of these decisions, making them available to interested parties upon request. Requests should be directed to the Executive Director, Emergency Steel Guarantee Loan Program, 1099—14th Street, NW, Suite 2600 East, Washington, DC 20005. Prior to a final loan guarantee decision, a copy of the NEPA documentation shall be sent to the Board for consideration.

* * * * *

11. Section 400.207 is amended by revising paragraphs (b) introductory text and (c) to read as follows:

§ 400.207

Application evaluation.

* * * * *

(b) Evaluation criteria. Applications that are determined to be eligible pursuant to paragraph (a) of this section shall be subject to a substantive review by the Board based upon the following evaluation factors, in order of importance:

* * * * *

(c) Decisions by the Board. Upon completion of the evaluation of an application and as soon as possible after its receipt, the Board will approve or deny an eligible application that is timely received under this Program. The Board shall notify the Applicants and the Borrower in writing of the approval or denial of an application as soon as possible. Approvals for loan Guarantees shall be conditioned upon compliance with § 400.208.

12. Section 400.208 is amended by revising paragraph (a)(3) to read as follows:

§ 400.208

Issuance of the Guarantee.

(a) * * *

(3) The Board's receipt of the Loan documents and any related instruments, in form and substance satisfactory to the Board, and the Guarantee, all properly executed by the Lender, Borrower, and any other required party other than the Board; and

* * * * *

13. Section 400.210 is amended by removing paragraph (c)(2), redesignating paragraph (c)(3) as paragraph (c)(2), and revising it, and adding a new paragraph (d), to read as follows:

§ 400.210

Assignment or transfer of loans.

* * * * *

(c) * * *

(2) Transfers by a non-Agent Lender of the non-guaranteed portion of the loan after payment of the guaranteed portion of the loan has been made under the Guarantee.

(d) The Agent must hold and may not assign or transfer an interest in a loan guaranteed under the Program equal to at least the lesser of $25 million or 15 percent of the aggregate amount of the loan. The Agent must hold and may not assign or transfer an interest in the unguaranteed portion of the loan which as a percentage of the Agent's overall interest in the loan is no less than the aggregate percentage of the loan which is not guaranteed. A non-Agent Lender must hold and may not transfer or assign an interest in the unguaranteed portion of the loan representing no less than five percent of such Lender's total interest in the Loan, except as provided paragraph (c)(2) of this section.

14. Section 400.211 is revised to read as follows:

§ 400.211

Lender responsibilities.

The Lender shall have such obligations and duties to the Board as are set forth in the Guarantee.

15. Section 400.212 is revised to read as follows:

§ 400.212

Guarantee.

The Board shall adopt a form of Guarantee to be used by the Board under the Program, and shall publish the Guarantee on its website. Modifications to the provisions of the form of Guarantee must be approved and adopted by the Board.

16. Section 400.213 is revised to read as follows:

§ 400.213

Termination of obligations.

The Board shall have such rights to terminate the Guarantee as are set forth in the Guarantee.

17. Section 400.214 is revised to read as follows:

§ 400.214

Participations in guaranteed loans.

(a) Subject to paragraphs (b), (c) and (d) of this section, a Lender may distribute the risk of a portion of a loan guaranteed under the Program by sale of participations therein if:

(1) Neither the loan note nor the Guarantee is assigned, conveyed, sold, or transferred in whole or in part;

(2) The Lender remains solely responsible for the administration of the loan; and

(3) The Board's ability to assert any and all defenses available to it under the Guarantee and the law is not adversely affected.

(b) The following categories of entities may purchase participations in loans guaranteed under the Program:

(1) Eligible Lenders;

(2) Private investment funds and insurance companies that do not usually invest in commercial loans;

(3) Steel company suppliers or customers, who are interested in participating as a means of commencing or solidifying the supplier or customer relationship with the borrower; or

(4) Any other entity approved by the Board on a case-by-case basis.

(c) The Agent may not grant participations in that portion of its interest in a loan that may not be assigned or transferred under § 400.210(d). A Lender, other than the Agent, may not grant participations in that portion of its interest in a loan that may not be assigned or transferred under § 400.210(d).

(d) At least 5 percent of any participation interest in a loan must be unguaranteed.