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| section_id ▼ | title_number | title_name | chapter | subchapter | part_number | part_name | subpart | subpart_name | section_number | section_heading | agency | authority | source_citation | amendment_citations | full_text |
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| 7:7:15.1.19.2.10.1.39.1 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | A | Subpart A—Repowering Assistance Payments to Eligible Biorefineries | § 4288.1 Purpose and scope. | RBS | (a) Purpose. The purpose of this program is to provide financial incentives to biorefineries in existence on June 18, 2008, the date of the enactment of the Food, Conservation, and Energy Act of 2008 (the 2008 Farm Bill) (Pub. L. 110-246), to replace the use of fossil fuels used to produce heat or power at their facilities by installing new systems that use renewable biomass, or to produce new energy from renewable biomass. (b) Scope. The Agency may make payments under this program to any biorefinery that meets the requirements of the program up to the limits established for the program. Based on our research and survey of medium-sized project costs, the Agency has determined that the dollar amount identified will provide adequate incentive for biorefineries to apply. (1) The Agency will determine the amount of payments to be made to a biorefinery taking into consideration the percentage reduction in fossil fuel used by the biorefinery (including the quantity of fossil fuels a renewable biomass system is replacing), and the cost and cost-effectiveness of the renewable biomass system. (2) The Agency will determine who receives payment under this program based on the percentage reduction in fossil fuel used by the biorefinery that will result from the installation of the renewable biomass system; the cost and cost-effectiveness of the renewable biomass system; and other scoring criteria identified in § 4288.21. The above criteria will be used to determine priority for awards of 50 percent of total eligible project costs, up to the maximum award applicable for the fiscal year. | |||||
| 7:7:15.1.19.2.10.1.39.10 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | A | Subpart A—Repowering Assistance Payments to Eligible Biorefineries | § 4288.11 Eligible project costs. | RBS | Eligible project costs will be only for project related construction costs for repowering improvements associated with the equipment, installation, engineering, design, site plans, associated professional fees, permits and financing fees. | |||||
| 7:7:15.1.19.2.10.1.39.11 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | A | Subpart A—Repowering Assistance Payments to Eligible Biorefineries | § 4288.12 Ineligible project costs. | RBS | Any project costs incurred by the applicant prior to application for payment assistance under this program will be ineligible for payment assistance. | |||||
| 7:7:15.1.19.2.10.1.39.12 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | A | Subpart A—Repowering Assistance Payments to Eligible Biorefineries | § 4288.13 Payment information. | RBS | (a) Maximum payment. For purposes of this program, the maximum payment an applicant may receive will be 50 percent of total eligible project costs up to the applicable fiscal year's maximum award as announced in an annual Federal Register notice. There is no minimum payment to an applicant. (b) Reimbursement payments. The Agency shall only make payments based on the biorefinery's expenditures on eligible project costs. Payments shall be determined by multiplying the amount of eligible expenditures stated on the payment request by a percentage obtained by dividing the aggregate payment award by total eligible project costs. (c) Timing of payments. The Applicant may request payments not more frequently than once a month by submitting an original, completed, validly signed Standard Form (SF) 271, “Outlay Report and Request for Reimbursement for Construction Programs” including the supporting documentation identified in § 4288.23, to reimburse the applicant for the Agency's pro rata share of funds expended on eligible project costs. The Agency shall make such payments until 90 percent of the total payment award has been expended. The final 10 percent of the payment award will be paid upon completion of the repowering project and satisfactory evidence has been received by the Agency demonstrating that the biorefinery is operating as described in the Agency approved application. | |||||
| 7:7:15.1.19.2.10.1.39.13 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | A | Subpart A—Repowering Assistance Payments to Eligible Biorefineries | §§ 4288.14-4288.19 [Reserved] | RBS | ||||||
| 7:7:15.1.19.2.10.1.39.14 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | A | Subpart A—Repowering Assistance Payments to Eligible Biorefineries | § 4288.20 Submittal of applications. | RBS | [76 FR 7926, Feb. 11, 2011, as amended at 81 FR 11053, Mar. 2, 2016; 89 FR 34959, May 1, 2024] | (a) Address to make application. Application must be submitted to USDA, Rural Development-Energy Division, Program Branch, Attention: Repowering Assistance Program, 1400 Independence Avenue, SW., Stop 3225, Washington, DC 20250-3225. (b) Content and form of submission. Applicants must submit a signed original and one copy of an application containing the information specified in this section. The applicant must also furnish the Agency the required documentation identified in Form RD 4288-4, “Repowering Assistance Program Application,” to verify compliance with program provisions before acceptance into the program. Note that applicants are required to have a Unique Entity Identifier (UEI) (unless the applicant is an individual). Instructions for obtaining the UEI are available at https://sam.gov/. Applicants must submit to the Agency the documents specified in paragraphs (b)(1) through (6) of this section. (1) Form RD 4288-4. Applicants must submit this form and all necessary attachments providing project information on the biorefinery; the facility at which the biorefinery operates, including location and products produced; and the types and quantities of renewable biomass feedstock being proposed to produce heat or power. This form requires the applicant to provide relevant data to allow for technical analysis of their existing facility to demonstrate replacement of fossil fuel by renewable biomass with reasonable costs and maximum efficiencies. The applicant must also submit evidence that the biorefinery was in existence on or before June 18, 2008. The applicant is required to certify the information provided. (2) RD Instruction 1940-Q, Exhibit A-1, “Certification for Contracts, Grants and Loans.” (3) Form RD 400-1. (4) Form RD 400-4. (5) Environmental documentation in accordance with 7 CFR part 1970. (6) Certifications. The applicant must furnish the Agency all required certifications before acceptance into the program, and furnish access to records required by the Agency to verify compliance wi… | ||||
| 7:7:15.1.19.2.10.1.39.15 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | A | Subpart A—Repowering Assistance Payments to Eligible Biorefineries | § 4288.21 Application review and scoring. | RBS | The Agency will evaluate projects based on the cost, cost-effectiveness, and capacity of projects to reduce fossil fuels. The cost of the project will be taken into consideration in the context of each project's ability to economically produce energy from renewable biomass to replace its dependence on fossil fuels. Projects with higher costs that are less efficient will not score well. The scoring criteria are designed to evaluate projects on simple payback as well as the percentage of fossil fuel reduction. (a) Review. The Agency will evaluate each application and make a determination as to whether the applicant is eligible, whether the proposed project is eligible, and whether the proposed payment request complies with all applicable statutes and regulations. This evaluation will be conducted by experts in the Agency and other Federal agencies, including the U.S. Department of Energy based on the information provided by the applicant. (b) Scoring. The Agency will score each application in order to prioritize each proposed project. The maximum number of points awardable to any applicant will be 100. The evaluation criteria that the Agency will use to score these projects are specified in paragraphs (b)(1) through (b)(6) of this section. (1) Cost-effectiveness. Cost-effectiveness will be scored based on the anticipated simple payback period, or “simple payback.” Anticipated simple payback will be demonstrated by calculating documented base energy use costs for the 24-month period prior to submission of the application or at least 12 months of data supported by engineering and design calculations, and site plans, prepared by the construction engineering firm. (i) The simple payback period is calculated as follows: • Simple payback = C/S Where: C = eligible capital expenses of the repowering project S = savings in annual operating costs. Where: C = eligible capital expenses of the repowering project S = savings in annual operating costs. (ii) A maximum of 20 points will be awarded as follows: … | |||||
| 7:7:15.1.19.2.10.1.39.16 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | A | Subpart A—Repowering Assistance Payments to Eligible Biorefineries | § 4288.22 Ranking of applications. | RBS | All scored applications will be ranked by the Agency as soon after the application deadline as possible. The Agency will consider the score an application has received compared to the scores of other applications in the priority list, with higher scoring applications receiving first consideration for payments. (a) Selection of applications for payments. Using the application scoring criteria point values specified in § 4288.21 of this subpart, the Agency will select applications for payments. (b) Availability of funds. As applications are funded, if insufficient funds remain to pay the next highest scoring application, the Agency may elect to pay a lower scoring application. Before this occurs, the Agency will provide the applicant of the higher scoring application the opportunity to reduce the amount of its payment request to the amount of funds available. If the applicant agrees to lower its payment request, it must certify that the purposes of the project can be met, and the Agency must determine the project is feasible at the lower amount. | |||||
| 7:7:15.1.19.2.10.1.39.17 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | A | Subpart A—Repowering Assistance Payments to Eligible Biorefineries | § 4288.23 Notifications. | RBS | (a) Successful applicants. Successful applicants will receive an award letter notifying them of the award, including the terms and conditions, and Form RD 4288-5. Each funded project is unique, and, therefore, conditions of Form RD 4288-5 may vary among projects. Successful applicants must execute and return the Form RD 4288-5, accompanied by any additional items identified in the award letter. (b) Unsuccessful applicants. Unsuccessful applicants will receive a letter notifying them of their application score and ranking and the score necessary to qualify for payments. | |||||
| 7:7:15.1.19.2.10.1.39.18 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | A | Subpart A—Repowering Assistance Payments to Eligible Biorefineries | § 4288.24 Program payment provisions. | RBS | The procedure the Agency will use to make payments to eligible biorefineries is specified in paragraphs (a) through (e) of this section. (a) Payment applications. The Agency shall make payments based on the biorefinery's expenditures on eligible project costs. To request payments under this program during a fiscal year, an eligible biorefinery must: (1) Submit an original, validly signed and completed SF 271 to the Agency not more frequently than once a month with the following supporting documentation: (i) Evidence of expenditure of funds on eligible project costs which shall include paid third party invoices, receipts, bills of sale, and/or payroll records. Such records must be adequate to identify that funds to be reimbursed were spent on eligible project costs; and (ii) Evidence that construction of the repowering project is in compliance with the project development schedule. (2) Certify that the request is accurate. (3) Furnish the Agency such certifications as required in Form RD 4288-4, Part C, and access to records that verify compliance with program provisions. (b) Clarifying information. After payment applications are submitted, eligible biorefineries may be required to submit additional supporting clarification if their original submittal is not sufficient to verify eligibility for payment. (c) Notification. The Agency will notify the biorefinery, in writing, whenever the Agency determines that a payment request is ineligible and why the request was determined ineligible. (d) Refunds and interest payments. An eligible biorefinery that has received a payment under this program may be required to refund such payment as specified in paragraphs (d)(1) through (d)(5) of this section. (1) An eligible biorefinery receiving payment under this program will become ineligible for payments if the Agency determines the biorefinery has: (i) Made any material fraudulent representation; (ii) Misrepresented any material fact affecting a program determination; or (iii) Upon completion of the repowe… | |||||
| 7:7:15.1.19.2.10.1.39.19 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | A | Subpart A—Repowering Assistance Payments to Eligible Biorefineries | § 4288.25 Succession and control of facilities and production. | RBS | Any party obtaining a biorefinery that is participating in this program must request permission to participate in this program as a successor. The Agency may grant such request if it is determined that, the party is eligible, and permitting such succession would serve the purposes of the program. If appropriate, the Agency will require the consent of the previous party to such succession. Also, the Agency may terminate payments and demand full refund of payments made if a party loses control of a biorefinery whose production of heat or power from renewable biomass is the basis of a program payment, or otherwise fails to retain the ability to assure that all program obligations and requirements will be met. | |||||
| 7:7:15.1.19.2.10.1.39.2 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | A | Subpart A—Repowering Assistance Payments to Eligible Biorefineries | § 4288.2 Definitions. | RBS | [76 FR 7926, Feb. 11, 2011, as amended at 80 FR 9913, Feb. 24, 2015; 87 FR 38645, June 29, 2022] | The definitions set forth in this section are applicable for all purposes of program administration under this subpart. Agency. The USDA Rural Development, Rural Business-Cooperative Service or its successor organization. Application period. The time period announced by the Agency during which the Agency will accept applications. Base energy use. The amount of documented fossil fuel energy use over an extended operating period. (1) The extended operating period must be at least 24 months of recorded usage, and requires metered utility records for electric energy, natural gas consumption, fuel oil, coal shipments and propane use, as applicable for providing heat or power for the operation of the biorefinery. (2) Utility billing, oil and coal shipments must be actual bills, with meter readings, applicable rates and tariffs, costs and usage. Billing must be complete, without gaps and arranged in chronological order. Drop shipments of coal or oil can be substituted for metered readings, provided the biorefinery documents the usage and its relationship to providing heat or power to the biorefinery. (3) A biorefinery in existence on or before June 18, 2008 with less than 24 months of actual operating data must provide at least 12 months of data supported by engineering and design calculations, and site plans, prepared by the construction engineering firm. Biobased products. Products determined by the Secretary to be commercial or industrial products (other than food or feed) that are: (1) Composed, in whole or in significant part, of biological products, including renewable domestic agricultural materials and forestry materials; or (2) Intermediate ingredients or feedstocks. Biofuel. Fuel derived from renewable biomass. Biorefinery. A facility (including equipment and processes) that converts renewable biomass into biofuels and biobased products, and may produce electricity. Eligible biorefinery. A biorefinery that has been in existence on or before June 18, 2008. Energy Information Agency (EIA). T… | ||||
| 7:7:15.1.19.2.10.1.39.20 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | A | Subpart A—Repowering Assistance Payments to Eligible Biorefineries | § 4288.26 Fiscal Year 2009 and Fiscal Year 2010 applications. | RBS | Any entity that submitted an application for payment to the Agency under this program prior to March 14, 2011 will have their payments made and serviced in accordance with the provisions specified in this subpart. | |||||
| 7:7:15.1.19.2.10.1.39.21 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | A | Subpart A—Repowering Assistance Payments to Eligible Biorefineries | §§ 4288.27-4288.100 [Reserved] | RBS | ||||||
| 7:7:15.1.19.2.10.1.39.3 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | A | Subpart A—Repowering Assistance Payments to Eligible Biorefineries | § 4288.3 Review or appeal rights. | RBS | A person may seek a review of an Agency decision or appeal to the National Appeals Division in accordance with 7 CFR part 11 of this title. | |||||
| 7:7:15.1.19.2.10.1.39.4 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | A | Subpart A—Repowering Assistance Payments to Eligible Biorefineries | § 4288.4 Compliance with other laws and regulations. | RBS | Participating biorefineries must comply with other applicable Federal, State, and local laws, including, but not limited to, the Equal Employment Opportunities Act, the Equal Credit Opportunity Act, Title VI of the Civil Rights Act of 1964, 7 CFR Part 1901, subpart E, Section 504 of the Rehabilitation Act of 1973, and the Age Discrimination Act of 1975. Applicants must submit and will be subject to pre-award and post award compliance reviews with the terms and conditions set forth in Form RD 400-1, “Equal Opportunity Agreement” and Form RD 400-4, “Assurance Agreement.” | |||||
| 7:7:15.1.19.2.10.1.39.5 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | A | Subpart A—Repowering Assistance Payments to Eligible Biorefineries | § 4288.5 Oversight, monitoring, and reporting requirements. | RBS | (a) Verification. The Agency reserves the right to verify all payment requests and subsequent payments made under this program, including field visits, as frequently as necessary to ensure the integrity of the program. Documentation provided will be used to verify, reconcile, and enforce the payment terms of Form RD 4288-5, “Repowering Assistance Program—Agreement,” along with any potential refunds that the recipient will be required to make should they fail to adequately document their request. (b) Records. (1) For purposes of verifying the eligible project costs supporting payments under this subpart, each biorefinery must maintain in one place such books, documents, papers, receipts, payroll records and bills of sale adequate to identify the purposes for which, and the manner in which funds were expended for eligible project costs. The biorefinery must maintain copies of all documents submitted to the Agency in connection with payments made hereunder. These records must be available at all reasonable times for examination by the Agency and must be held and be available for Agency examination for a period of not less than 3 years from the final payment date. (2) For the purpose of verifying compliance with the fossil fuel reduction and energy production requirements of this subpart, each biorefinery must make available and provide for the metering of all power and heat producing boilers, containment vessels, generators and any other equipment related to the production of heat or power required to displace fossil fuel loads with renewable biomass. These records must be held in one place and be available at all reasonable times for examination by the Agency. Such records include all books, papers, contracts, scale tickets, settlement sheets, invoices, and any other documents related to the program that are within the control of the biorefinery. These records must be held and made available for Agency examination for a period of not less than 3 years from the date the repowering project becomes operational. … | |||||
| 7:7:15.1.19.2.10.1.39.6 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | A | Subpart A—Repowering Assistance Payments to Eligible Biorefineries | § 4288.6 Forms, regulations, and instructions. | RBS | Copies of all forms, regulations, instructions, and other materials related to this program may be obtained from the USDA Rural Development State Office, Renewable Energy Coordinator and the USDA Rural Development Web site at http://www.rurdev.usda.gov/regs/. | |||||
| 7:7:15.1.19.2.10.1.39.7 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | A | Subpart A—Repowering Assistance Payments to Eligible Biorefineries | § 4288.7 Exception authority. | RBS | The Administrator of the Agency (“Administrator”) may, with the concurrence of the Secretary of Agriculture, make an exception, on a case-by-case basis, to any requirement or provision of this subpart that is not inconsistent with any authorizing statute or applicable law, if the Administrator determines that application of the requirement or provision would adversely affect the Federal government's interest. | |||||
| 7:7:15.1.19.2.10.1.39.8 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | A | Subpart A—Repowering Assistance Payments to Eligible Biorefineries | §§ 4288.8-4288.9 [Reserved] | RBS | ||||||
| 7:7:15.1.19.2.10.1.39.9 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | A | Subpart A—Repowering Assistance Payments to Eligible Biorefineries | § 4288.10 Applicant eligibility. | RBS | (a) Eligible projects. To be eligible for this program, the applicant must be an eligible biorefinery utilizing only renewable biomass for replacement fuel, and must meet the requirements specified in paragraphs (a)(1) through (a)(5) of this section. (1) Timely complete application submission. To be eligible for this program, the applicant must submit a complete application within the application period. Projects will be selected based on ranking which is derived from the application of the selection criteria stated in § 4288.21. (2) Multiple biorefineries. Corporations and entities with more than one biorefinery can submit an application for only one of their biorefineries. However, if a corporation or entity has multiple biorefineries located at the same location, the entity may submit an application that covers such biorefineries provided the heat and power used in the multiple biorefineries are centrally produced. (3) Cost-effectiveness. The application must be awarded at least minimum points for cost-effectiveness under § 4288.21(b)(1). (4) Percentage of reduction of fossil fuel use. The application must be awarded at least minimum points for percentage of reduction of fossil fuel use under § 4288.21(b)(2). (5) Full project financing. The applicant must demonstrate that it has sufficient funds or has obtained commitments for sufficient funds to complete the repowering project taking into account the amount of the payment request in the application. (b) Ineligible projects. A project is not eligible under this subpart if it is using feedstocks for repowering that are feed grain commodities that received benefits under Title I of the Food, Conservation, and Energy Act of 2008. | |||||
| 7:7:15.1.19.2.10.2.39.1 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | B | Subpart B—Advanced Biofuel Payment Program General Provisions | § 4288.101 Purpose and scope. | RBS | (a) Purpose. The purpose of this subpart is to support and ensure an expanding production of advanced biofuels by providing payments to eligible advanced biofuel producers. (b) Scope. This subpart sets forth, subject to the availability of funds as provided herein, or as may be limited by law, the terms and conditions an advanced biofuel producer must meet to obtain payments under this Program from the United States Department of Agriculture for eligible advanced biofuel production. Additional terms and conditions may be set forth in the Program contract and payment agreement prescribed by the Agency. | |||||
| 7:7:15.1.19.2.10.2.39.10 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | B | Subpart B—Advanced Biofuel Payment Program General Provisions | § 4288.111 Biofuel eligibility. | RBS | [76 FR 7967, Feb. 11, 2011, as amended at 84 FR 71302, Dec. 27, 2019] | To be eligible for this Program, a biofuel must meet the requirements specified in paragraph (a) of this section, and must not be listed in paragraph (b) of this section, and the biofuel's producer must provide additional information as may be requested by the Agency under paragraph (c) of this section. (a) Eligible advanced biofuel. For an advanced biofuel to be eligible, each of the following conditions must be met, as applicable: (1) The advanced biofuel must meet the definition of advanced biofuel and be produced in a State; (2) The advanced biofuel must be a solid, liquid, or gaseous advanced biofuel; (3) The advanced biofuel must be a Final Product; and (4) The advanced biofuel must be sold as an advanced biofuel through an arm's length transaction to a third party. (b) Ineligible fuels. Notwithstanding the provisions of paragraph (a) of this section, for the purposes of this Program, the following fuels, and as may be supplemented by the Agency through the publication of documents in the Federal Register, are not eligible for payment: (1) Flared gases; (2) Fuels derived from paper milling and other processes commonly ascribed to wood products manufacturing and generically referred to as “liquor” ( e.g., black liquor, red liquor, brown liquor, white liquor, green liquor, etc.), which typically are blended with diesel and burned as boiler fuel; (3) Biofuels produced from solid eligible renewable biomass primarily by mechanical means, whether by hand or by machine, such as collecting, baling, bundling, chopping, screening, and chipping of the renewable biomass. Examples of ineligible biofuels that are not eligible advanced biofuels for the purposes of this subpart include, but are not limited to, baled energy grasses, chipped or chunked woody biomass, and chopped or split firewood; and (4) Any advanced biofuel produced under bailment or third-party production contract and/or any variation thereof. (c) Eligibility determination. The Agency will determine a biofuel's eligibility for payment … | ||||
| 7:7:15.1.19.2.10.2.39.11 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | B | Subpart B—Advanced Biofuel Payment Program General Provisions | § 4288.112 Eligibility notifications. | RBS | (a) Applicant eligibility. If an applicant is determined by the Agency to be eligible for participation, the Agency will notify the applicant, in writing, as soon as practicable after receipt of the application and will assign the applicant a contract number. (b) Ineligibility notifications. If an applicant or a biofuel is determined by the Agency to be ineligible, the Agency will notify the applicant, in writing, as soon as practicable after receipt of the application, as to the reason(s) the applicant or biofuel was determined to be ineligible. Such applicant will have appeal rights as specified in this subpart. (c) Subsequent ineligibility determinations. If at any time a producer or an advanced biofuel is determined to be ineligible, the Agency will notify the producer in writing of its determination. | |||||
| 7:7:15.1.19.2.10.2.39.12 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | B | Subpart B—Advanced Biofuel Payment Program General Provisions | § 4288.113 Payment record requirements. | RBS | To be eligible for Program payments, an advanced biofuel producer must maintain records for all relevant fiscal years and fiscal year quarters for each advanced biofuel facility indicating: (a) The type of eligible renewable biomass used in the production of advanced biofuel; (b) The quantity of advanced biofuel produced from eligible renewable biomass at each advanced biofuel facility; (c) The quantity of eligible renewable biomass used at each advanced biofuel facility to produce the advanced biofuel; and (d) All other records required to establish Program eligibility and compliance. | |||||
| 7:7:15.1.19.2.10.2.39.13 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | B | Subpart B—Advanced Biofuel Payment Program General Provisions | §§ 4288.114-4288.119 [Reserved] | RBS | ||||||
| 7:7:15.1.19.2.10.2.39.2 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | B | Subpart B—Advanced Biofuel Payment Program General Provisions | § 4288.102 Definitions. | RBS | [76 FR 7967, Feb. 11, 2011, as amended at 84 FR 71301, Dec. 27, 2019] | The definitions set forth in this section are applicable for all purposes of program administration under this subpart. Advanced biofuel. A fuel that is derived from renewable biomass, other than corn kernel starch, to include: (1) Biofuel derived from cellulose, hemicellulose, or lignin; (2) Biofuel derived from sugar and starch (other than ethanol derived from corn kernel starch); (3) Biofuel derived from waste material, including crop residue, other vegetative waste material, animal waste, food waste, and yard waste; (4) Diesel-equivalent fuel derived from renewable biomass, including vegetable oil and animal fat; (5) Biogas (including landfill gas and sewage waste treatment gas) produced through the conversion of organic matter from renewable biomass; (6) Butanol or other alcohols produced through the conversion of organic matter from renewable biomass; or (7) Other fuel derived from cellulosic biomass. Advanced biofuel producer. An individual, corporation, company, foundation, governmental entity, school or other educational facility, association, labor organization, firm, partnership, society, joint stock company, group of organizations, or non-profit entity that produces advanced biofuel. An entity that blends or otherwise combines advanced biofuels into a blended biofuel is not considered an advanced biofuel producer under this subpart. An entity that produces biofuel exclusively under a toll/bailment arrangement/third part production contract is not considered an advanced biofuel producer under this subpart. Agency. The USDA Rural Development, Rural Business-Cooperative Service or its successor organization. Alcohol. Anhydrous ethyl alcohol manufactured in the United States and its territories and sold either: (1) For fuel use, rendered unfit for beverage use, produced at a biofuel facility and in a manner approved by the Bureau of Alcohol, Tobacco, Firearms, and Explosives for the production of alcohol for fuel; or (2) As denatured alcohol used by blenders and refiners and rendered unfi… | ||||
| 7:7:15.1.19.2.10.2.39.3 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | B | Subpart B—Advanced Biofuel Payment Program General Provisions | § 4288.103 Review or appeal rights. | RBS | A person may seek a review of an Agency decision or appeal to the National Appeals Division in accordance with 7 CFR part 11 of this title. | |||||
| 7:7:15.1.19.2.10.2.39.4 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | B | Subpart B—Advanced Biofuel Payment Program General Provisions | § 4288.104 Compliance with other laws and regulations. | RBS | (a) Advanced biofuel producers must comply with other applicable Federal, State, and local laws, including, but not limited to, the Equal Employment Opportunity Act, Title VI of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, The Age Discrimination Act of 1975, the Americans with Disabilities Act of 1990, and 7 CFR part 1901, subpart E. This includes collection and maintenance of race, sex, and national origin data of the recipient's employee. (b) Producers must comply with equal opportunity and nondiscriminatory requirements in accordance with 7 CFR 15d. Rural Development will not discriminate against an applicant on the bases of race, color, religion, national origin, sex, sexual orientation, marital status, familial status, disability, or age (provided that the applicant has the capacity to contract); to the fact that all or part of the applicant's income derives from public assistance program; or to the fact that the applicant has in good faith exercised any right under the Consumer Credit Protection Act. | |||||
| 7:7:15.1.19.2.10.2.39.5 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | B | Subpart B—Advanced Biofuel Payment Program General Provisions | § 4288.105 Oversight and monitoring. | RBS | [76 FR 7967, Feb. 11, 2011, as amended at 84 FR 71302, Dec. 27, 2019] | (a) Verification. The Agency reserves the right to verify all payment applications and subsequent payments made under this subpart, as frequently as necessary, to ensure the integrity of the Program. The Agency will conduct site visits as necessary. (1) Production and feedstock verification. The Agency will review producer records to verify the type and amount of biofuel produced and the type and amount of commodity/eligible renewable biomass used. (2) Blending verification. The Agency will review the producer's certificates of analysis and feedstock records to verify the portion of the advanced biofuel eligible for payment. (3) Certificate of Analysis. The Agency will review the producer records for quarterly payments to ensure that each Certificate of Analysis has been issued by an Agency-approved qualified entity, which may include the blender only if the blender is not associated with the biorefinery. (b) Records. For the purpose of verifying compliance with the requirements of this subpart, each eligible advanced biofuel producer shall make available at one place at a reasonable time for examination by representatives of USDA, all books, papers, records, contracts, scale tickets, settlement sheets, invoices, written price quotations, and other documents related to the Program that is within the control of such advanced biofuel producer for not less than 3 years from each Program payment date. | ||||
| 7:7:15.1.19.2.10.2.39.6 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | B | Subpart B—Advanced Biofuel Payment Program General Provisions | § 4288.106 Forms, regulations, and instructions. | RBS | [84 FR 71302, Dec. 27, 2019] | Copies of all forms, regulations, instructions, and other materials related to this Program may be obtained from the USDA Rural Development State Office, Rural Energy Coordinator and the USDA Rural Development website at https://www.rd.usda.gov/. | ||||
| 7:7:15.1.19.2.10.2.39.7 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | B | Subpart B—Advanced Biofuel Payment Program General Provisions | § 4288.107 Exception authority. | RBS | The Administrator of the Agency (“Administrator”) may, with the concurrence of the Secretary of Agriculture, make an exception, on a case-by-case basis, to any requirement or provision of this subpart that is not inconsistent with any authorizing statute or applicable law, if the Administrator determines that application of the requirement or provision would adversely affect the Federal government's interest. | |||||
| 7:7:15.1.19.2.10.2.39.8 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | B | Subpart B—Advanced Biofuel Payment Program General Provisions | §§ 4288.108-4288.109 [Reserved] | RBS | ||||||
| 7:7:15.1.19.2.10.2.39.9 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | B | Subpart B—Advanced Biofuel Payment Program General Provisions | § 4288.110 Applicant eligibility. | RBS | [76 FR 7967, Feb. 11, 2011, as amended at 84 FR 71302, Dec. 27, 2019] | Sections 4288.110 through 4288.119 present the requirements associated with advanced biofuel producer eligibility, biofuel eligibility, eligibility notifications, and payment record requirements. To be eligible for this Program, the applicant must meet the requirements specified in paragraph (a) of this section and must provide additional information as may be requested by the Agency under paragraph (b) of this section. Public bodies and educational institutions are not eligible for this Program. (a) Eligible producer. The applicant must be an advanced biofuel producer, as defined in this subpart. (b) Eligibility determination. The Agency will determine an applicant's eligibility for participation in this Program. If an applicant's original submittal is not sufficient to verify an applicant's eligibility, the Agency will notify the applicant, in writing, as soon as practicable after receipt of the application. This notification will identify, at a minimum, the additional information being requested to enable the Agency to determine the applicant's eligibility and a timeframe in which to supply the information. (1) If the applicant provides the requested information to the Agency within the specified timeframe, the Agency will determine the applicant's eligibility for the upcoming fiscal year. (2) If the applicant does not provide the requested information to the Agency within the specified timeframe, the Agency will not consider the applicant any further for participation in the upcoming fiscal year. Such applicants may elect to enroll during the next sign-up period. (c) Ineligibility determination. An otherwise eligible producer will be determined to be ineligible if the producer: (1) Refuses to allow the Agency to verify any information provided by the producer under this subpart, including information for determining applicant eligibility, advanced biofuel eligibility, and application payments; (2) Fails to meet any of the conditions set out in this subpart, in the contract, or in other Program do… | ||||
| 7:7:15.1.19.2.10.2.40.14 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | B | Subpart B—Advanced Biofuel Payment Program General Provisions | § 4288.120 Enrollment. | RBS | [76 FR 7967, Feb. 11, 2011, as amended at 84 FR 71302, Dec. 27, 2019] | In order to participate in the Program, a producer of advanced biofuels must be approved by the Agency and enter into a contract with the Agency. The process for enrolling in the Program is presented in this section. Advanced biofuel producers who expect to produce eligible advanced biofuels at any time during a fiscal year must enroll in the Program as described in this section. (a) Enrollment. To enroll in the Program, an advanced biofuel producer must submit to the Agency a completed enrollment application during the applicable sign-up period, as specified in paragraph (b) of this section. Applicants must be registered in the System for Award Management (SAM) prior to submitting an application; which can be obtained at no cost via a toll-free request line at (866) 705-5711 or online at www.sam.gov/SAM. Registration of a new entity in SAM requires an original, signed, and notarized letter stating that the applicant is the authorized Entity Administrator, before the registration will be activated. (1) Eligible advanced biofuel producers must submit enrollment applications during each sign-up period in order to continue participating in this Program. If a participating producer fails to submit the enrollment application during a fiscal year's applicable sign-up period, the producer's contract will be terminated and the producer will be ineligible to receive payments for that fiscal year. Such a producer must reapply, and sign a new contract, to participate in the Program for future fiscal years. (2) Eligible advanced biofuel producers may submit an enrollment application during a fiscal year's sign-up period even if the advanced biofuel facility is not currently producing, but is scheduled to start producing advanced biofuel in that fiscal year. (3) The producer must furnish the Agency all required certifications before acceptance into the Program, and furnish access to the advanced biofuel producer's records required by the Agency to verify compliance with Program provisions. The required certifications … | ||||
| 7:7:15.1.19.2.10.2.40.15 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | B | Subpart B—Advanced Biofuel Payment Program General Provisions | § 4288.121 Contract. | RBS | Advanced biofuel producers determined to be eligible to receive payments must then enter into a contract with the Agency in order to participate in this Program. (a) Contract. The Agency will forward the contract to the advanced biofuel producer. The advanced biofuel producer must agree to the terms and conditions of the contract, sign, date, and return it to the Agency within the time provided by the Agency. (b) Length of contract. Once signed, a contract will remain in effect until terminated as specified in paragraph (d) of this section. (c) Contract review. All contracts will be reviewed at least annually to ensure compliance with the contract and ensure the integrity of the program. (d) Contract termination. Contracts under this Program will be terminated in writing by the Agency. Contracts may be terminated under any one of the following conditions: (1) At the mutual agreement of the parties; (2) In accordance with applicable Program notices and regulations; (3) The advanced biofuel producer withdraws from the Program and so notifies the Agency, in writing; (4) The advanced biofuel producer fails to submit the enrollment application during a sign-up period; (5) The Program is discontinued or not funded; (6) All of a participating advanced biofuel producer's advanced biofuel facilities no longer exist or no longer produce any eligible advanced biofuel; or (7) The Agency determines that the advanced biofuel producer is ineligible for participation. | |||||
| 7:7:15.1.19.2.10.2.40.16 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | B | Subpart B—Advanced Biofuel Payment Program General Provisions | §§ 4288.122-4288.129 [Reserved] | RBS | ||||||
| 7:7:15.1.19.2.10.2.41.17 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | B | Subpart B—Advanced Biofuel Payment Program General Provisions | § 4288.130 Payment applications. | RBS | [76 FR 7967, Feb. 11, 2011, as amended at 84 FR 71302, Dec. 27, 2019] | Sections 4288.130 through 4288.189 identify the process and procedures the Agency will use to make payments to eligible advanced biofuel producers. In order to receive payments under this Program, eligible advanced biofuel producers with valid contracts must submit a payment application, as required under paragraph (a) of this section. The Agency will review the payment application and, if necessary, may request additional information, as specified under paragraph (b) of this section. (a) Applying for payment. To apply for payments under this subpart for a fiscal year, an eligible advanced biofuel producer must: (1) After a quarter has been completed, submit a payment application covering the quarter; (2) Certify that the request is accurate; (3) Furnish the Agency such certification, and access to such records, as the Agency considers necessary to verify compliance with Program provisions; and (4) Provide documentation as requested by the Agency of the net production of advanced biofuel at all advanced biofuel facilities during the relevant quarter. (b) Review of payment applications. The Agency will review each payment application it receives to determine if it is eligible for payment. (1) Review factors. Factors that the Agency will consider in reviewing payments applications include, but are not necessarily limited to: (i) Contract validity. Whether the entity submitting the payment application has a valid contract with the Agency under this Program; (ii) Biofuel eligibility. Whether the biofuel for which payment is sought is an eligible advanced biofuel; and (iii) Calculations. Whether the calculations for determining the requested payment are complete and accurate. (2) Additional documentation. If the Agency determines additional information is required for the Agency to complete its review of a payment application, eligible advanced biofuel producers shall submit such additional supporting documentation as requested by the Agency. If the producer does not provide the requested info… | ||||
| 7:7:15.1.19.2.10.2.41.18 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | B | Subpart B—Advanced Biofuel Payment Program General Provisions | § 4288.131 Payment provisions. | RBS | [84 FR 71302, Dec. 27, 2019] | Payments to advanced biofuel producers for eligible advanced biofuel production will be determined in accordance with the provisions of this section. (a) Actual production. Participating producers will be paid on a quarterly basis for the actual quantity of eligible advanced biofuel produced during the quarter. Payment for actual production will be determined according to paragraph (d) of this section. (b) Amount of payment funds available. Based on the amount of funds made available to this Program each fiscal year, the Agency will allocate available program funds according to paragraphs (c), (d), and (e) of this section. (c) Quarterly allocations. For each fiscal year, the Agency will allocate in each quarter one-fourth of the funds identified in paragraph (b) of this section allocated for the entire fiscal year. (d) Determination of payment rate. Each quarter, the Agency will establish an actual production payment rate using the procedures specified in paragraphs (d)(1) through (4) of this section. This rate will be applied to the actual quantity of eligible advanced biofuel produced to determine payments to eligible advanced biofuel producers. (1) Based on the information provided in each payment application, the Agency will determine the eligible advanced biofuel production. If the Agency determines that the amount of advanced biofuel production reported in a payment application is not supported by the documentation submitted with the payment application, the Agency may revise the reported production to an amount that is commensurate with the submitted documentation. (2) For each producer, the Agency will convert the production determined to be eligible under paragraph (c) of this section into British Thermal Unit (BTU) equivalent using factors published by the Energy Information Administration (EIA) (or successor organization). If the Energy Information Administration does not publish such conversion factor for a specific type of advanced biofuel, the Agency will use a conversion factor develo… | ||||
| 7:7:15.1.19.2.10.2.41.19 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | B | Subpart B—Advanced Biofuel Payment Program General Provisions | § 4288.132 Payment adjustments. | RBS | The Agency will adjust the payments otherwise payable to the advanced biofuel producer if there is a difference between the amount actually produced and the amount determined by the Agency to be eligible for payment. | |||||
| 7:7:15.1.19.2.10.2.41.20 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | B | Subpart B—Advanced Biofuel Payment Program General Provisions | § 4288.133 Payment liability. | RBS | Any payment, or portion thereof, made under this subpart shall be made without regard to questions of title under State law and without regard to any claim or lien against the advanced biofuel, or proceeds thereof, in favor of the owner or any other creditor except agencies of the U.S. Government. | |||||
| 7:7:15.1.19.2.10.2.41.21 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | B | Subpart B—Advanced Biofuel Payment Program General Provisions | § 4288.134 Refunds and interest payments. | RBS | An eligible advanced biofuel producer who receives payments under this subpart may be required to refund such payments as specified in this section. If the Agency suspects fraudulent representation through its site visits and records inspections under § 4288.105(b), it will be referred to the Office of Inspector General for appropriate action. (a) An eligible advanced biofuel producer receiving payments under this subpart shall become ineligible if the Agency determines the advanced biofuel producer has: (1) Made any fraudulent representation; or (2) Misrepresented any material fact affecting a Program determination. (b) If an Agency determination that a producer is not eligible for participation under this subpart is appealed and overturned, the Agency will make appropriate and applicable payments to the producer from Program funds, to the extent such funds are available, that remain from the fiscal year in which the original adverse Agency decision was made. (c) All payments made to an entity determined by the Agency to be ineligible shall be refunded to the Agency with interest and other such sums as may become due, including, but not limited to, any interest, penalties, and administrative costs as determined appropriate under 31 CFR 901.9. (d) When a refund is due, it shall be paid promptly. If a refund is not made promptly, the Agency may use all remedies available to it, including Treasury offset under the Debt Collection Improvement Act of 1996, financial judgment against the producer, and referral to the Department of Justice. (e) Late payment interest shall be assessed on each refund in accordance with the provisions and rates as established by the United States Treasury. (1) Interest charged by the Agency under this subpart shall be established by the United States Treasury. Such interest shall accrue from the date such payments were made by the Agency to the date of repayment by the producer. (2) The Agency may waive the accrual of interest or damages if the Agency determines that the cause of… | |||||
| 7:7:15.1.19.2.10.2.41.22 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | B | Subpart B—Advanced Biofuel Payment Program General Provisions | § 4288.135 Unauthorized payments and offsets. | RBS | When unauthorized assistance has been made to an advanced biofuel producer under this Program, the Agency reserves the right to collect from the recipient the sum that is determined to be unauthorized. If the recipient fails to pay the Agency the unauthorized assistance plus other sums due under this section, the Agency reserves the right to offset that amount against Program payments. (a) Unauthorized assistance. The Agency will seek to collect from recipients all unauthorized assistance made under this Program using the procedures specified in paragraphs (a)(1) through (a)(4) of this section. (1) Notification to the producer. Upon determination that unauthorized assistance has been made to an advanced biofuel producer under this Program, the Agency will send a demand letter to the producer. Unless the Agency modifies the original demand, it will remain in full force and effect. The demand letter will: (i) Specify the amount of unauthorized assistance, including any accrued interest to be repaid, and the standards for imposing accrued interest; (ii) State the amount of penalties and administrative costs to be paid, the standards for imposing them and the date on which they will begin to accrue; (iii) Provide detailed reason(s) why the assistance was determined to be unauthorized; (iv) State the amount is immediately due and payable to the Agency; (v) Describe the rights the producer has for seeking review or appeal of the Agency's determination pursuant to 7 CFR part 11; (vi) Describe the Agency's available remedies regarding enforced collection, including referral of debt delinquent after due process for Federal salary, benefit and tax offset under the Department of Treasury Offset Program; and (vii) Provide an opportunity for the producer to meet with the Agency and to provide to the Agency facts, figures, written records, or other information that might refute the Agency's determination. (A) If the producer meets with the Agency, the producer will be given an opportunity to provide information t… | |||||
| 7:7:15.1.19.2.10.2.41.23 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | B | Subpart B—Advanced Biofuel Payment Program General Provisions | § 4288.136 Remedies. | RBS | [76 FR 7967, Feb. 11, 2011, as amended at 85 FR 31939, May 28, 2020] | In addition to the steps available under the provisions of §§ 4288.134 and 4288.135, if the Agency has determined that a producer has misrepresented the information or defrauded the Government, the Agency will take one of the following steps in accordance with 2 CFR part 417: (a) Suspend payments on the Contract until the violation has been reconciled; (b) Terminate the Contract; or (c) Debarment to participate in any Federal Government program. | ||||
| 7:7:15.1.19.2.10.2.41.24 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | B | Subpart B—Advanced Biofuel Payment Program General Provisions | § 4288.137 Succession and loss of control of advanced biofuel facilities and production. | RBS | (a) Contract succession. An entity who becomes the eligible advanced biofuel producer for an advanced biofuel facility that is under contract under this subpart must request permission from the Agency to succeed to the Program contract and the Agency may grant such request if it is determined that the entity is an eligible producer and permitting such succession would serve the purposes of the Program. If appropriate, the Agency may require the consent of the previous eligible advanced biofuel producer to such succession. (b) Loss of control. Payments will be made only for eligible advanced biofuels produced at an advanced biofuel facility owned or controlled by an eligible advanced biofuel producer with a valid contract. If payments are made to an advanced biofuel producer for production at an advanced biofuel facility no longer owned or controlled by said producer or to an otherwise ineligible advanced biofuel producer, the Agency will demand full refund of all such payments. | |||||
| 7:7:15.1.19.2.10.2.41.25 | 7 | Agriculture | XLII | 4288 | PART 4288—PAYMENT PROGRAMS | B | Subpart B—Advanced Biofuel Payment Program General Provisions | §§ 4288.138-4288.200 [Reserved] | RBS | ||||||
| 7:7:15.1.19.2.11.1.65.1 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | A | Subpart A—Introduction to Part 4290 | § 4290.10 Description of the Rural Business Investment Company Program. | RBS | The Rural Business Investment Company (“RBIC”) Program is a Developmental Capital program for the purpose of promoting economic development and the creation of wealth and job opportunities in Rural Areas and among individuals living in such Areas. To this end, the Agency will select and license RBIC Applicants that will agree to address the unmet Equity Capital needs of Smaller Enterprises primarily located in Rural Areas. | |||||
| 7:7:15.1.19.2.11.1.65.2 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | A | Subpart A—Introduction to Part 4290 | § 4290.15 Leveraged and Non-leveraged Rural Business Investment Companies. | RBS | [76 FR 80221, Dec. 23, 2011] | The regulations in this part apply to rural business investment companies (RBICs) that seek leverage and to RBICs that do not seek leverage. The provisions of subparts A through N of this part apply to Leveraged RBICs and, except as indicated or as otherwise modified by subpart O of this part, to Non-leveraged RBICs. The provisions in subpart O of this part apply to Non-leveraged RBICs and, in addition, modify certain provisions in subparts A through N of this part as they apply to Non-leveraged RBICs. | ||||
| 7:7:15.1.19.2.11.1.65.3 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | A | Subpart A—Introduction to Part 4290 | § 4290.20 Legal basis and applicability of this part 4290. | RBS | The regulations in this part implement Subtitle H of the Consolidated Farm and Rural Development Act, as amended (7 U.S.C. 2009cc et seq. ) (“Act”). All RBICs must comply with all applicable regulations, accounting guidelines and valuation guidelines for RBICs. | |||||
| 7:7:15.1.19.2.11.1.65.4 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | A | Subpart A—Introduction to Part 4290 | § 4290.30 Amendments to Act and regulations. | RBS | A RBIC is subject to all existing and future provisions of the Act and part 4290 of title 7 of the Code of Federal Regulations. | |||||
| 7:7:15.1.19.2.11.1.65.5 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | A | Subpart A—Introduction to Part 4290 | § 4290.40 How to read this part 4290. | RBS | (a) Center Headings. Center headings are descriptive and are used for convenience only. They have no regulatory effect. (b) Capitalizing defined terms. Terms defined in § 4290.50 have initial capitalization in this part 4290. (c) “You.” The pronoun “you” as used in this part 4290 means a RBIC unless otherwise noted. (d) Forms. All references in this part to forms, and instructions for their preparation, are to the current issue of such forms. | |||||
| 7:7:15.1.19.2.11.1.65.6 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | A | Subpart A—Introduction to Part 4290 | § 4290.45 Responsibility for implementing this part 4290. | RBS | The Agency has delegated to the U.S. Small Business Administration (SBA), pursuant to an agreement under the Economy Act (31 U.S.C. 1535), the authority to implement the RBIC program, including implementing and enforcing the regulations in this part 4290. Therefore, unless specifically stated otherwise, SBA will exercise on behalf of the Agency all responsibilities and authorities assigned to the Agency in this part 4290. | |||||
| 7:7:15.1.19.2.11.10.81.1 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | J | Subpart J—Financial Assistance for RBICs (Leverage) | § 4290.1100 Type of Leverage and application procedures. | RBS | (a) Type of Leverage available. You may apply for Leverage from the Agency in the form of a guarantee of your Debentures. (b) Applying for Leverage. The Leverage application process has two parts. You must first apply for the Agency's conditional commitment to reserve a specific amount of Leverage for your future use. You may then apply to draw down Leverage against the commitment. See §§ 4290.1200 through 4290.1240. (c) Where to send your application. Send all Leverage draw-down applications to Funding Control Officer, Investment Division, U.S. Small Business Administration, 409 Third Street, SW., Suite 6300, Mail Code 7050, Washington, DC 20416. | |||||
| 7:7:15.1.19.2.11.10.81.2 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | J | Subpart J—Financial Assistance for RBICs (Leverage) | § 4290.1120 General eligibility requirements for Leverage. | RBS | To be eligible for Leverage, you must be in compliance with the Act, the regulations in this part, and your Participation Agreement. | |||||
| 7:7:15.1.19.2.11.10.81.3 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | J | Subpart J—Financial Assistance for RBICs (Leverage) | § 4290.1130 Leverage fees payable by RBIC. | RBS | (a) Leverage fee. You must pay the Agency a non-refundable leverage fee for each issuance of a Debenture. The fee is 3 percent of the face amount of the Debenture issued, and will be deducted from the proceeds remitted to you. (b) Additional charge. You must pay the Agency an additional annual charge of 1 percent of the outstanding amount of your Debenture. (c) Other Leverage fees. The Agency may establish a fee structure for services performed by the Central Registration Agent (CRA). The Agency will not collect any fee for its guarantee of TCs. | |||||
| 7:7:15.1.19.2.11.10.81.4 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | J | Subpart J—Financial Assistance for RBICs (Leverage) | § 4290.1140 RBIC's acceptance of remedies under § 4290.1810. | RBS | If you issue Leverage, you automatically agree to the terms and conditions in § 4290.1810 as it exists at the time of issuance. The effect of these terms and conditions is the same as if they were fully incorporated in the terms of your Leverage. | |||||
| 7:7:15.1.19.2.11.10.82.5 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | J | Subpart J—Financial Assistance for RBICs (Leverage) | § 4290.1150 Maximum amount of Leverage for a RBIC. | RBS | The face amount of a RBIC's outstanding Debentures may not exceed the lesser of 200 percent of its Leverageable Capital or $105,000,000. | |||||
| 7:7:15.1.19.2.11.10.83.6 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | J | Subpart J—Financial Assistance for RBICs (Leverage) | § 4290.1200 Leverage commitment to a RBIC—application procedure, amount, and term. | RBS | (a) General. Under the provisions in §§ 4290.1200 through 4290.1240, you may apply for the Agency's conditional commitment to reserve a specific amount of Leverage and type of Debenture (standard or discounted) for your future use. You may then apply to draw down Leverage against the commitment. (b) Applying for a Leverage commitment. The Agency will notify you when requests for Leverage commitments are being accepted, and upon receipt of your request, will send you a complete application package. (c) Limitations on the amount of a Leverage commitment. The amount of a Leverage commitment must be a multiple of $5,000. The Agency in its discretion may determine a minimum dollar amount for Leverage commitments. Any such minimum amounts will be published in Notices in the Federal Register from time to time. (d) Term of Leverage commitment. Your Leverage commitment will automatically lapse on the expiration date stated in the commitment letter issued to you by the Agency. The Agency's Leverage commitment will be included in the Participation Agreement at the time of your licensing as a RBIC, under § 4290.390. | |||||
| 7:7:15.1.19.2.11.10.83.7 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | J | Subpart J—Financial Assistance for RBICs (Leverage) | § 4290.1220 Requirement for RBIC to file financial statements at the time of request for a draw. | RBS | [69 FR 32204, June 8, 2004, as amended at 76 FR 80224, Dec. 23, 2011] | (a) If you submit a request for a draw against your Leverage commitment more than 90 days following your submission of an annual SBA Form 468 or a SBA Form 468 (Short Form) or other USDA-approved form(s), you must: (1) Give the Agency a financial statement on Form 468 (Short Form) or other USDA-approved form(s), and (2) File a statement of no material adverse change in your financial condition since your last filing of SBA Form 468 or other USDA-approved form(s). (b) You will not be eligible for a draw if you are not in compliance with this § 4290.1220. | ||||
| 7:7:15.1.19.2.11.10.83.8 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | J | Subpart J—Financial Assistance for RBICs (Leverage) | § 4290.1230 Draw-downs by RBIC under Leverage commitment. | RBS | [69 FR 32204, June 8, 2004, as amended at 76 FR 80224, Dec. 23, 2011] | (a) RBIC's authorization of the Agency to guarantee securities. By submitting a request for a draw against the Leverage commitment, you authorize the Agency, or the Agency's designated agent or trustee, to guarantee your Debenture and to sell it with the Agency's guarantee. (b) Limitations on amount of draw. The amount of a draw must be a multiple of $5,000. The Agency, in its discretion, may determine a minimum dollar amount for draws against Leverage commitments. Any such minimum amounts will be published in Notices in the Federal Register from time to time. (c) Effect of regulatory violations on RBIC's eligibility for draws —(1) General rule. You are eligible to make a draw against your Leverage commitment only if you are in compliance with all applicable provisions of the Act and this part ( i.e., no unresolved statutory or regulatory violations) and your Participation Agreement. (2) Exception to general rule. If you are not in compliance, you may still be eligible for draws if: (i) The Agency determines that your outstanding violations are of non-substantive provisions of the Act or this part or your Participation Agreement and that you have not repeatedly violated any non-substantive provisions; or (ii) You have agreed with the Agency in writing on a course of action to resolve your violations and such agreement does not prevent you from issuing Leverage. (d) Procedures for funding draws. You may request a draw at any time during the term of the commitment. With each request, submit the following documentation: (1) A statement certifying that there has been no material adverse change in your financial condition since your last filing of SBA Form 468 or other USDA-approved form(s) (see also § 4290.1220 for filing requirements). (2) If your request is submitted more than 30 days following the end of your fiscal year, but before you have submitted your annual filing of SBA Form 468 or other USDA-approved form(s) in accordance with § 4290.630(a), a preliminary unaudited annual financial st… | ||||
| 7:7:15.1.19.2.11.10.83.9 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | J | Subpart J—Financial Assistance for RBICs (Leverage) | § 4290.1240 Funding of RBIC's draw request through sale to third-party. | RBS | (a) RBIC's authorization of the Agency to arrange sale of Debentures to third-party. By submitting a request for a draw of Debenture Leverage, you authorize the Agency, or any agent or trustee the Agency designates, to enter into any agreements (and to bind you to such agreements) necessary to accomplish: (1) The sale of your Debenture to a third-party at a price approved by the Agency; and (2) The purchase of your Debenture from the third-party and the pooling of your Debenture with other Debentures with the same maturity date. (b) Sale of Debentures to a third-party. If the Agency arranges for the sale of your Debenture to a third-party, the sale price may be an amount discounted from the face amount of the Debenture. | |||||
| 7:7:15.1.19.2.11.10.84.10 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | J | Subpart J—Financial Assistance for RBICs (Leverage) | § 4290.1500 Restrictions on distributions to RBIC investors while RBIC has outstanding Leverage. | RBS | (a) Restriction on distribution. If you have outstanding Leverage, whenever you make a distribution to your investors you must make, at the same time, a prepayment to or for the benefit of the third-party holder of the Debenture sold pursuant to § 4290.1240 of this part, accrued unpaid interest and the principal, in whole or in part, of one or more of your Debentures outstanding as of the date of the distribution (subject to the terms of such Debentures). (b) Amount of prepayment. You must calculate the amount due the third-party holder by multiplying the total amount you intend to distribute by a fraction whose numerator is the outstanding principal of your Debenture(s) immediately preceding your distribution, and whose denominator is the sum of your Leverageable Capital as of that time plus the outstanding principal amount of your Debentures. For purposes of the preceding sentence “principal” means both the net proceeds and interest accrued to date of a discounted Debenture. The amount of any payment received under this section will be credited first against unpaid interest accrued to the date of distribution and then to the principal in whole or in part of the first Debenture you select to prepay and then to the interest and principal in whole or in part of such other Debenture(s) as you select to prepay. You may elect to prepay in whole any discounted Debenture under this section only within five years of its maturity date. Payments under this section must be made on the next occurring March 1 or September 1. (c) Effect of prepayment. Subject to the terms of the Debenture(s), you may voluntarily prepay additional principal, but neither mandatory nor voluntary prepayment will increase your future Leverage eligibility. | |||||
| 7:7:15.1.19.2.11.10.85.11 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | J | Subpart J—Financial Assistance for RBICs (Leverage) | § 4290.1600 Agency's authority to issue and guarantee Trust Certificates. | RBS | [69 FR 32204, June 8, 2004, as amended at 76 FR 80224, Dec. 23, 2011] | (a) Authorization. Section 384F of the Act authorizes the Agency to issue TCs and to guarantee the timely payment of the principal and interest thereon. Any such guarantee of such TC is limited to the principal and interest due on the Debentures in any Trust or Pool backing such TC. The full faith and credit of the United States is pledged to the payment of all amounts due under the guarantee of any TC. (b) Authority to arrange public or private fundings of Leverage. The Agency in its discretion may arrange for public or private financing under its guarantee authority. Such financing may be accomplished by the sale of individual Debentures, aggregations of Debentures, or Pools or Trusts of Debentures. (c) Pass-through provisions. TCs shall provide for a pass-through to their holders of all amounts of principal and interest paid on the Debentures in the Pool or Trust against which they are issued. (d) Formation of a Pool or Trust holding Leverage Securities. The Agency shall approve the formation of each Pool or Trust. The Agency may, in its discretion, establish the size of the Pools and their composition, the interest rate on the TCs issued against Trusts or Pools, discounts, premiums and other charges made in connection with the Pools, Trusts, and TCs, and any other characteristics of a Pool or Trust it deems appropriate. Notwithstanding § 4290.1130(c), any agent of the Agency may collect a fee for the functions described in 7 U.S.C. 2009cc-5(e)(2) that does not exceed $500. | ||||
| 7:7:15.1.19.2.11.10.85.12 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | J | Subpart J—Financial Assistance for RBICs (Leverage) | § 4290.1610 Effect of prepayment or early redemption of Leverage on a Trust Certificate. | RBS | (a) The rights, if any, of a RBIC to prepay any Debenture is established by the terms of such security, and no such right is created or denied by the regulations in this part. (b) The Agency's rights to purchase or prepay any Debenture without premium are established by the terms of the Guaranty Agreement relating to the Debenture. (c) Any prepayment of a Debenture pursuant to the terms of the Guaranty Agreement relating to such security shall reduce the Agency's guarantee of timely payment of principal and interest on a TC in proportion to the amount of principal that such prepaid Debenture represents in the Trust or Pool backing such TC. (d) The Agency shall be discharged from its guarantee obligation to the holder or holders of any TC, or any successor or transferee of such holder, to the extent of any such prepayment, whether or not such successor or transferee shall have notice of any such prepayment. (e) Interest on prepaid Debentures shall accrue only through the date of prepayment. (f) In the event that all Debentures constituting a Trust or Pool are prepaid, the TCs backed by such Trust or Pool shall be redeemed by payment of the unpaid principal and interest on the TCs; provided, however, that in the case of the prepayment of a Debenture pursuant to the provisions of the Guaranty Agreement relating to the Debenture, the Central Registration Agent (CRA) shall pass through pro rata to the holders of the TCs any such prepayments including any prepayment penalty paid by the obligor RBIC pursuant to the terms of the Debenture. | |||||
| 7:7:15.1.19.2.11.10.85.13 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | J | Subpart J—Financial Assistance for RBICs (Leverage) | § 4290.1620 Functions of agents, including Central Registration Agent, Selling Agent and Fiscal Agent. | RBS | (a) Agents. The Agency may appoint or cause to be appointed agent(s) to perform functions necessary to market and service Debentures or TCs pursuant to this part. (1) Selling Agent. As a condition of guaranteeing a Debenture, the Agency may cause each RBIC to appoint a Selling Agent to perform functions that include, but are not limited to: (i) Selecting qualified entities to become pool or Trust assemblers (“Poolers”). (ii) Receiving guaranteed Debentures as well as negotiating the terms and conditions of sales or periodic offerings of Debentures and/or TCs on behalf of RBICs. (iii) Directing and coordinating periodic sales of Debentures and/or TCs. (iv) Arranging for the production of Offering Circulars, certificates, and such other documents as may be required from time to time. (2) Fiscal Agent. The Agency shall appoint a Fiscal Agent to: (i) Establish performance criteria for Poolers. (ii) Monitor and evaluate the financial markets to determine those factors that will minimize or reduce the cost of funding Debentures. (iii) Monitor the performance of the Selling Agent, Poolers, CRA, and the Trustee. (iv) Perform such other functions as the Agency, from time to time, may prescribe. (3) Central Registration Agent. Pursuant to a contract entered into with the Agency, the CRA, as the Agency's agent, will do the following with respect to the Pools or Trust Certificates for the Debentures: (i) Form an approved Pool or Trust; (ii) Issue the TCs in the prescribed form; (iii) Transfer the TCs upon the sale of original issue TCs in any secondary market transaction; (iv) Receive payments from RBICs; (v) Make periodic payments as scheduled or required by the terms of the TCs, and pay all amounts required to be paid upon prepayment of Debentures; (vi) Hold, safeguard, and release all Debentures constituting Trusts or Pools upon instructions from the Agency; (vii) Remain custodian of such other documentation as the Agency shall direct by written instructions; (viii) Provide for the registration … | |||||
| 7:7:15.1.19.2.11.10.85.14 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | J | Subpart J—Financial Assistance for RBICs (Leverage) | § 4290.1630 Regulation of Brokers and Dealers and disclosure to purchasers of Leverage or Trust Certificates. | RBS | (a) Brokers and Dealers. Each broker, dealer, and Pool or Trust assembler approved by the Agency pursuant to these regulations shall either be regulated by a Federal financial regulatory agency, or be a member of the National Association of Securities Dealers (NASD), and shall be in good standing in respect to compliance with the financial, ethical, and reporting requirements of such body. It also shall be in good standing with the Agency as determined by the SBA official with delegated authority to made this determination ( see paragraph (c) of this section) and shall provide a fidelity bond or insurance in such amount as the Agency may require. (b) Suspension and/or termination of Broker or Dealer. The Agency shall exclude from the sale and all other dealings in Debentures or TCs any broker or dealer: (1) If such broker's or dealer's authority to engage in the securities business has been revoked or suspended by a supervisory agency. When such authority has been suspended, the Agency will suspend such broker or dealer for the duration of such suspension by the supervisory agency. (2) If such broker or dealer has been indicted or otherwise formally charged with a misdemeanor or felony bearing on its fitness, such broker or dealer may be suspended while the charge is pending. Upon conviction, participation may be terminated. (3) If such broker or dealer has suffered an adverse final civil judgment holding that such broker or dealer has committed a breach of trust or violation of law or regulation protecting the integrity of business transactions or relationships, participation in the market for Debentures or TCs may be terminated. (c) Termination/suspension proceedings. A broker's or dealer's participation in the market for Debentures or TCs will be conducted in accordance with 7 CFR part 11. The Agency may, for any of the reasons stated in paragraphs (b)(1) through (3) of this section, suspend the privilege of any broker or dealer to participate in this market. The Agency shall give written notice at… | |||||
| 7:7:15.1.19.2.11.10.85.15 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | J | Subpart J—Financial Assistance for RBICs (Leverage) | § 4290.1640 Agency's access to records of the CRA, Brokers, Dealers and Pool or Trust assemblers. | RBS | The CRA and any broker, dealer and Pool or Trust assembler operating under the regulations in this part shall make all books, records and related materials associated with Debentures and TCs available to the Agency for review and copying purposes. Such access shall be at such party's primary place of business during normal business hours. | |||||
| 7:7:15.1.19.2.11.10.86.16 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | J | Subpart J—Financial Assistance for RBICs (Leverage) | § 4290.1700 Agency's transfer of interest in a RBIC's Leverage security. | RBS | Upon such conditions and for such consideration as it deems reasonable, the Agency may sell, assign, transfer, or otherwise dispose of any Debenture held by or on behalf of the Agency. Upon notice by the Agency, a RBIC will make all payments of principal and interest as shall be directed by the Agency. A RBIC will be liable for all damage or loss which the Agency may sustain by reason of the RBIC's failure to follow such payment instructions, up to the amount of the RBIC's liability under such security, plus court costs and reasonable attorney's fees incurred by the Agency. | |||||
| 7:7:15.1.19.2.11.10.86.17 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | J | Subpart J—Financial Assistance for RBICs (Leverage) | § 4290.1710 Agency's authority to collect or compromise claims. | RBS | The Agency may, upon such conditions and for such consideration as it deems reasonable, collect or compromise all claims relating to obligations it holds or has guaranteed, and all legal or equitable rights accruing to it. | |||||
| 7:7:15.1.19.2.11.10.86.18 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | J | Subpart J—Financial Assistance for RBICs (Leverage) | § 4290.1720 Characteristics of Agency's guarantee. | RBS | If the Agency agrees to guarantee a RBIC's Debentures, such guarantee will be unconditional, irrespective of the validity, regularity or enforceability of the Debentures or any other circumstances that might constitute a legal or equitable discharge or defense of a guarantor. Pursuant to its guarantee, the Agency will make timely payments of principal and interest on the Debentures. | |||||
| 7:7:15.1.19.2.11.11.87.1 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | K | Subpart K—RBIC's Noncompliance With Terms of Leverage | § 4290.1810 Events of default and the Agency's remedies for RBIC's noncompliance with terms of Debentures. | RBS | [69 FR 32204, June 8, 2004, as amended at 76 FR 80224, Dec. 23, 2011] | (a) Applicability of this section. Upon acceptance of a license to operate as an RBIC, you automatically agree to the terms, conditions and remedies in this section, as in effect at the time of issuance of the license and as fully set forth in all documents relating to the license, including, without limitation, the Participation Agreement and Debentures. (b) Automatic events of default. The occurrence of one or more of the events in this paragraph (b) causes the remedies in paragraph (c) of this section to take effect immediately. (1) Insolvency. You become equitably or legally insolvent. (2) Voluntary assignment. You make a voluntary assignment for the benefit of creditors without the Agency's prior written approval. (3) Bankruptcy. You file a petition to begin any bankruptcy or reorganization proceeding, receivership, dissolution or other similar creditors' rights proceeding, or such action is initiated against you and is not dismissed within 60 days. (c) Remedies for automatic events of default. Upon the occurrence of one or more of the events in paragraph (b) of this section: (1) Without notice, presentation or demand, the entire indebtedness evidenced by your Debentures, including accrued interest, and any other amounts owed with respect to your Debentures, is immediately due and payable; and (2) You automatically consent to the appointment of the Agency or its designee, as your receiver under section 384M of the Act. (d) Events of default with notice. For any occurrence (as determined by the Agency) of one or more of the events in this paragraph (d), the Agency may avail itself of one or more of the remedies in paragraph (e) of this section. (1) Fraud. You commit a fraudulent act that causes detriment to the Agency's position as a creditor or guarantor. (2) Fraudulent transfers. You make any transfer or incur any obligation that is fraudulent under the terms of 11 U.S.C. 548. (3) Willful conflicts of interest. You willfully violate § 4290.730. (4) Willful non-compliance. Y… | ||||
| 7:7:15.1.19.2.11.11.87.2 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | K | Subpart K—RBIC's Noncompliance With Terms of Leverage | § 4290.1830 RBIC's Capital Impairment definition and general requirements. | RBS | (a) Significance of Capital Impairment condition. If you have a condition of Capital Impairment, you are not in compliance with the terms of your Leverage. As a result, the Agency has the right to impose the applicable remedies for noncompliance in § 4290.1810(g). (b) Definition of Capital Impairment condition. You have a condition of Capital Impairment if your Capital Impairment Percentage, as computed pursuant to the procedures set forth in § 4290.1840, exceeds 70 percent. (c) Quarterly computation requirement and procedure. You must determine whether you have a condition of Capital Impairment as of the end of each fiscal quarter. You must notify the Agency promptly if you are Capitally Impaired. (d) The Agency's right to determine RBIC's Capital Impairment condition. The Agency may make its own determination of your Capital Impairment condition at any time. | |||||
| 7:7:15.1.19.2.11.11.87.3 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | K | Subpart K—RBIC's Noncompliance With Terms of Leverage | § 4290.1840 Computation of RBIC's Capital Impairment Percentage. | RBS | [69 FR 32204, June 8, 2004, as amended at 76 FR 80225, Dec. 23, 2011] | (a) General. This section contains the procedures you must use to determine your Capital Impairment Percentage. You must compare your Capital Impairment Percentage to the maximum permitted under § 4290.1830(b) to determine whether you have a condition of Capital Impairment. (b) Preliminary impairment test. If you satisfy the preliminary impairment test, your Capital Impairment Percentage is zero and you do not have to perform any more procedures in this § 4290.1840. Otherwise, you must continue with paragraph (c) of this section. You satisfy the test if each of the following amounts is zero or greater: (1) The sum of Undistributed Net Realized Earnings, as reported on SBA Form 468 or other USDA-approved form(s) and Includible Non-Cash Gains. (2) Unrealized Gain (Loss) on Securities Held. (c) How to compute your Capital Impairment Percentage. (1) If you have an Unrealized Gain on Securities Held, compute your Adjusted Unrealized Gain using paragraph (d) of this section. If you have an Unrealized Loss on Securities Held, continue with paragraph (c)(2) of this section. (2) Add together your Undistributed Net Realized Earnings, your Includible Non-cash Gains, and either your Unrealized Loss on Securities Held or your Adjusted Unrealized Gain. (3) If the sum in paragraph (c)(2) of this section is zero or greater, your Capital Impairment Percentage is zero. (4) If the sum in paragraph (c)(2) of this section is less than zero, drop the negative sign, divide by your Regulatory Capital (excluding Treasury Stock), and multiply by 100. The result is your Capital Impairment Percentage. (d) How to compute your Adjusted Unrealized Gain. (1) Subtract Unrealized Depreciation from Unrealized Appreciation. This is your “Net Appreciation”. (2) Determine your Unrealized Appreciation on Publicly Traded and Marketable securities. This is your ”Class I Appreciation”. (3) Determine your Unrealized Appreciation on securities that are not Publicly Traded and Marketable and meet the following criteria, which must be subst… | ||||
| 7:7:15.1.19.2.11.12.88.1 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | L | Subpart L—Ending Operations as a RBIC | § 4290.1900 Termination of participation as a RBIC. | RBS | You may not terminate your participation as a RBIC without the Agency's prior written approval. Your request for approval must be accompanied by an offer of immediate repayment of all of your outstanding Leverage (including any prepayment penalties thereon), or by a plan satisfactory to the Agency for the orderly liquidation of the RBIC. | |||||
| 7:7:15.1.19.2.11.13.88.1 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | M | Subpart M—Miscellaneous | § 4290.1910 Non-waiver of rights or terms of Leverage security. | RBS | The Agency's failure to exercise or delay in exercising any right or remedy under the Act or the regulations in this part does not constitute a waiver of such right or remedy. The Agency's failure to require you to perform any term or provision of your Leverage does not affect the Agency's right to enforce such term or provision. Similarly, the Agency's waiver of, or failure to enforce, any term or provision of your Leverage or of any event or condition set forth in § 4290.1810 does not constitute a waiver of any succeeding breach of such term or provision or condition. | |||||
| 7:7:15.1.19.2.11.13.88.2 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | M | Subpart M—Miscellaneous | § 4290.1920 RBIC's application for exemption from a regulation in this part 4290. | RBS | (a) General. You may file an application in writing with the Agency to have a proposed action exempted from any procedural or substantive requirement, restriction, or prohibition to which it is subject under this part, unless the provision is mandated by the Act. The Agency may grant an exemption for such applicant, conditionally or unconditionally, provided the exemption would not be contrary to the purposes of the Act. (b) Contents of application. Your application must be accompanied by supporting evidence that demonstrates to the Agency's satisfaction that: (1) The proposed action is fair and equitable; and (2) The exemption requested is reasonably calculated to advance the best interests of the RBIC program in a manner consistent with the policy objectives of the Act and the regulations in this part. | |||||
| 7:7:15.1.19.2.11.13.88.3 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | M | Subpart M—Miscellaneous | § 4290.1930 Effect of changes in this part 4290 on transactions previously consummated. | RBS | The legality of a transaction covered by the regulations in this part is governed by the regulations in this part in effect at the time the transaction was consummated, regardless of later changes. Nothing in this part bars enforcement action with respect to any transaction consummated in violation of provisions applicable at the time, but no longer in effect. | |||||
| 7:7:15.1.19.2.11.13.88.4 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | M | Subpart M—Miscellaneous | § 4290.1940 Integration of this part with other regulations applicable to USDA's programs. | RBS | [69 FR 32204, June 8, 2004, as amended at 79 FR 76019, Dec. 19, 2014; 81 FR 11053, Mar. 2, 2016] | (a) Intergovernmental review. To the extent applicable to this part, the Agency will comply with 2 CFR part 415, subpart C, “Intergovernmental Review of Department of Agriculture Programs and Activities.” The Agency has not delegated this responsibility to SBA pursuant to § 4290.45. (b) National flood insurance. To the extent applicable to this part, the Agency will comply with subpart B of 7 CFR part 1806. The Agency has not delegated this responsibility to SBA pursuant to § 4290.45 of this part. (c) Clean Air Act and Water Pollution Control Act requirements. To the extent applicable to this part, the Agency will comply with the requirements of the Clean Air Act, section 306; the Clean Water Act, section 508; Executive Order 11738; and 40 CFR part 32. The Agency has not delegated this responsibility to SBA pursuant to § 4290.45 of this part. (d) Historic preservation requirements. To the extent applicable to this part, the Agency will comply with subpart F of 7 CFR part 1901. The Agency has not delegated this responsibility to SBA pursuant to § 4290.45 of this part. (e) Lead-based paint requirements. To the extent applicable to this part, the Agency will comply with subpart A of 7 CFR part 1924. The Agency has not delegated this responsibility to SBA pursuant to § 4290.45 of this part. (f) Conflict of interest. To the extent applicable to this part, the Agency will comply with 2 CFR 400.2, subpart D of 7 CFR part 1900, and RD Instruction 2045-BB. The Agency has not delegated this responsibility to SBA pursuant to § 4290.45. (g) Civil rights impact analysis. To the extent applicable to this part, the Agency will comply with RD Instruction 2006-P, “Civil Rights Impact Analysis.” The Agency has not delegated this responsibility to SBA pursuant to § 4290.45 of this part. (h) Environmental requirements. To the extent applicable to this part, the Agency will comply with 7 CFR part 1970. The Agency has not delegated this responsibility to SBA pursuant to § 4290.45. (i) Appeals to the National A… | ||||
| 7:7:15.1.19.2.11.14.88.1 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | N | Subpart N—Requirements for Operational Assistance Grants to RBICs | § 4290.2000 Operational Assistance Grants to RBICs. | RBS | (a) Regulations governing. Regulations governing Operational Assistance grants to RBICs may be found in subparts D and E of this part 4290 and in this § 4290.2000. (b) Restrictions on use. A RBIC must use Operational Assistance grant funds only to provide Operational Assistance to Smaller Enterprises to which it either has made, or expects to make, a Financing. (c) Amount of grant. Each RBIC will receive an Operational Assistance grant award equal to the lesser of 10 percent of the Regulatory Capital raised by the RBIC at the time of licensing or $1,000,000. (d) Term. Operational Assistance grants made under this part will be made for a multiyear period (not to exceed 10 years) under such terms as the Agency may require. (e) Reporting and recordkeeping requirements. Policies governing reporting, record retention, and recordkeeping requirements applicable to RBICs may be found in subpart H of this part 4290. | |||||
| 7:7:15.1.19.2.11.15.88.1 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | O | Subpart O—Additional Requirements for Non-Leveraged Licensees and Exceptions to Regulations | § 4290.3000 Non-leveraged RBICs—General. | RBS | This subpart identifies provisions specific to RBICs seeking a non-leveraged license, including exceptions and additions to provisions associated with subparts A through N of this part. | |||||
| 7:7:15.1.19.2.11.15.88.10 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | O | Subpart O—Additional Requirements for Non-Leveraged Licensees and Exceptions to Regulations | §§ 4290.3016-4290.3019 [Reserved] | RBS | ||||||
| 7:7:15.1.19.2.11.15.88.11 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | O | Subpart O—Additional Requirements for Non-Leveraged Licensees and Exceptions to Regulations | § 4290.3020 Changes in Ownership, Structure, or Control. | RBS | Paragraph (b) in § 4290.440 does not apply to Non-leveraged RBICs. | |||||
| 7:7:15.1.19.2.11.15.88.12 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | O | Subpart O—Additional Requirements for Non-Leveraged Licensees and Exceptions to Regulations | §§ 4290.3021-4290.3024 [Reserved] | RBS | ||||||
| 7:7:15.1.19.2.11.15.88.13 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | O | Subpart O—Additional Requirements for Non-Leveraged Licensees and Exceptions to Regulations | § 4290.3025 Managing the Operations of a RBIC. | RBS | (a) Nonperformance. In addition to the provisions specified in § 4290.507, failure of an approved Non-leveraged RBIC to maintain sound investment practice, as determined by the Agency, may result in loss of approval for participating in this program. (b) Employment of USDA or SBA officials. Paragraph (a)(2) of § 4290.509 does not apply to Non-leveraged RBICs. (c) Approval of RBIC's Investment Adviser/Manager. In addition to complying with § 4290.510, a Non-leveraged RBIC must notify the Agency of the Management Expenses to be incurred under such contract, or of any subsequent material changes in such Management Expenses, within 30 days of execution. (d) Management Expenses of a RBIC. When complying with § 4290.520, Non-leveraged RBICs do not need prior approval of initial Management Expenses and any increases in those expenses. (e) Restrictions on investments of idle funds by RBICs. The provisions of § 4290.530 apply to Non-leveraged RBICs only when the Non-leveraged RBIC engages in activities not contemplated by the Act. (f) Prior approval of secured third-party debt of RBICs. The provisions of § 4290.550 do not apply to Non-leveraged RBICs. (g) Voluntary decrease in Regulatory Capital. When complying with § 4290.585, Non-leveraged RBICs do not need to obtain prior approval for decreases in Regulatory Capital of more than 2 percent (but not below the minimum required under this Act or these regulations). However, Non-leveraged RBICs must report the reduction to the Agency within 30 days. | |||||
| 7:7:15.1.19.2.11.15.88.14 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | O | Subpart O—Additional Requirements for Non-Leveraged Licensees and Exceptions to Regulations | §§ 4290.3026-4290.3029 [Reserved] | RBS | ||||||
| 7:7:15.1.19.2.11.15.88.15 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | O | Subpart O—Additional Requirements for Non-Leveraged Licensees and Exceptions to Regulations | § 4290.3030 Financing of Enterprises by RBICs. | RBS | (a) Non-compliance with this section. The last sentence of § 4290.700(e) does not apply to Non-leveraged RBICs. (b) Enterprises that may be ineligible for Financing. The provisions associated with real estate enterprises found in § 4290.720(c) apply to Non-leveraged RBICs unless the Non-leveraged RBIC requests, and has received, an irrevocable exemption from the Agency in accordance with § 4290.1920. (c) Farmland purchases. The provisions associated with farmland purchases found in § 4290.720(e) apply to Non-leveraged RBICs unless the Non-leveraged RBIC requests, and has received, an irrevocable exemption from the Agency in accordance with § 4290.1920. (d) Purchasing securities from an underwriter or other third party. Non-leveraged RBICs are exempt from the recordkeeping requirements and fee limitations in § 4290.825(b) and (c), respectively, for securities purchased through or from an underwriter. (e) Assets acquired in liquidation of Portfolio securities. The provisions of § 4290.880 do not apply to Non-leveraged RBICs. | |||||
| 7:7:15.1.19.2.11.15.88.16 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | O | Subpart O—Additional Requirements for Non-Leveraged Licensees and Exceptions to Regulations | §§ 4290.3031-4290.3034 [Reserved] | RBS | ||||||
| 7:7:15.1.19.2.11.15.88.17 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | O | Subpart O—Additional Requirements for Non-Leveraged Licensees and Exceptions to Regulations | § 4290.3035 Recordkeeping, Reporting, and Examination Requirements for RBICs. | RBS | Except for § 4290.600(d), Subpart H, Recordkeeping, Reporting, and Examination Requirements for RBICs, of this part applies to Non-leveraged RBICs. | |||||
| 7:7:15.1.19.2.11.15.88.18 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | O | Subpart O—Additional Requirements for Non-Leveraged Licensees and Exceptions to Regulations | §§ 4290.3036-4290.3039 [Reserved] | RBS | ||||||
| 7:7:15.1.19.2.11.15.88.19 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | O | Subpart O—Additional Requirements for Non-Leveraged Licensees and Exceptions to Regulations | § 4290.3040 Financial Assistance for RBICs. | RBS | Subpart J, Financial Assistance for RBICs (Leveraged), of this part does not apply to Non-leveraged RBICs. | |||||
| 7:7:15.1.19.2.11.15.88.2 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | O | Subpart O—Additional Requirements for Non-Leveraged Licensees and Exceptions to Regulations | §§ 4290.3001-4290.3002 [Reserved] | RBS | ||||||
| 7:7:15.1.19.2.11.15.88.20 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | O | Subpart O—Additional Requirements for Non-Leveraged Licensees and Exceptions to Regulations | § 4290.3041 Events of default and the Agency's remedies for RBIC's noncompliance with terms of licensure. | RBS | [76 FR 80225, Dec. 23, 2011, as amended at 77 FR 4885, Feb. 1, 2012] | In addition to complying with the provisions of § 4290.1810, a RBIC's failure to comply with the terms of this part may result in the Agency revoking the Non-leveraged RBIC's license issued under this part. | ||||
| 7:7:15.1.19.2.11.15.88.21 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | O | Subpart O—Additional Requirements for Non-Leveraged Licensees and Exceptions to Regulations | §§ 4290.3042-4290.3044 [Reserved] | RBS | ||||||
| 7:7:15.1.19.2.11.15.88.22 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | O | Subpart O—Additional Requirements for Non-Leveraged Licensees and Exceptions to Regulations | § 4290.3045 Computation of RBIC's Capital Impairment. | RBS | The provisions specified in §§ 4290.1830 and 4290.1840 do not apply to Non-leveraged RBICs. | |||||
| 7:7:15.1.19.2.11.15.88.23 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | O | Subpart O—Additional Requirements for Non-Leveraged Licensees and Exceptions to Regulations | §§ 4290.3046-4290.3049 [Reserved] | RBS | ||||||
| 7:7:15.1.19.2.11.15.88.24 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | O | Subpart O—Additional Requirements for Non-Leveraged Licensees and Exceptions to Regulations | § 4290.3050 Operational Assistance Grants for RBICs. | RBS | Subpart N, Requirements for Operational Assistance Grant to RBICs, of this part does not apply to Non-leveraged RBICs. All other references to Operational Assistance in this part do not apply to Non-leveraged RBICs. | |||||
| 7:7:15.1.19.2.11.15.88.25 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | O | Subpart O—Additional Requirements for Non-Leveraged Licensees and Exceptions to Regulations | §§ 4290.3051-4290.3099 [Reserved] | RBS | ||||||
| 7:7:15.1.19.2.11.15.88.3 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | O | Subpart O—Additional Requirements for Non-Leveraged Licensees and Exceptions to Regulations | § 4290.3003 Responsibilities for implementing Non-leveraged RBICs. | RBS | [77 FR 4885, Feb. 1, 2012] | Section 4290.45 does not apply to Non-leveraged RBICs. Instead, for the purposes of this part as it applies to Non-leveraged RBICs, all authorities and responsibilities assigned to the Agency under this part shall be carried out by the Agency. Thus, when applying subparts A through N of this part to Non-leveraged RBICs, all references to the Small Business Administration (SBA) or Administrator on behalf of USDA shall be read as the Agency. All forms shall be submitted to USDA or its designee. | ||||
| 7:7:15.1.19.2.11.15.88.4 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | O | Subpart O—Additional Requirements for Non-Leveraged Licensees and Exceptions to Regulations | § 4290.3004 [Reserved] | RBS | ||||||
| 7:7:15.1.19.2.11.15.88.5 | 7 | Agriculture | XLII | 4290 | PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM | O | Subpart O—Additional Requirements for Non-Leveraged Licensees and Exceptions to Regulations | § 4290.3005 Qualifications for the Non-leveraged RBIC Program. | RBS | (a) Business form. In addition to complying with the applicable provisions of § 4290.100 not otherwise modified by this section, paragraphs (a)(1) through (a)(4) of this section apply. (1) For RBICs applying for non-leveraged status, the types of investors eligible to invest in a RBIC must have been approved by the Agency. Investors seeking approval must submit a request to the Agency with sufficient documentation to support their request. The USDA will announce such approved categories and types of investors in a public notice published in the Federal Register from time to time. Subsequent notices that modify the types of investors eligible to invest in a RBIC will not be applied retroactively. (2) In lieu of complying with § 4290.100(d)(1)(i), you must have a minimum duration of 10 years. After 10 years, the Partnership RBIC may be terminated by a vote of your partners. (3) In lieu of complying with § 4290.100(d)(2), if you are a LLC RBIC, you must have a minimum duration of 10 years. After 10 years, the LLC RBIC may be terminated by a vote of your members. (4) In lieu of complying with § 4290.100(d)(3), if you are a Corporate RBIC, you must have a duration of not less than 30 years unless earlier dissolved by the shareholders. (b) Approval of initial Management Expenses. Section 4290.140 does not apply to Non-leveraged RBICs. However, the Agency will provide a cap on these expenses in each Federal Register notice soliciting applications for Non-leveraged RBICs. (c) Management and ownership diversity requirements. A Non-leveraged RBIC is subject to the provisions of § 4290.150 unless it is exempted from these provisions by the Agency. Exemptions will only be granted when the applicant establishes, to the satisfaction of the Agency, that granting the exemption will not unduly impair the integrity and soundness of the Non-leveraged RBIC. (d) Special rules for Partnership RBICs and LLC RBICs. Paragraph (c) of § 4290.160 does not apply to Non-leveraged RBICs. |
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