[Federal Register Volume 77, Number 178 (Thursday, September 13, 2012)]
[Proposed Rules]
[Pages 56571-56581]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-22382]


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FARM CREDIT ADMINISTRATION

12 CFR Parts 604, 611, 612, 619, 620, 621, 622, 623, and 630

RIN 3052-AC65


Unincorporated Business Entities

AGENCY: Farm Credit Administration.

ACTION: Proposed rule.

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SUMMARY: The Farm Credit Administration (FCA, we, or our) is proposing 
to establish a regulatory framework for Farm Credit System (System) 
institutions' use of unincorporated business entities (UBEs) organized 
under State law for certain business activities. For purposes of this 
proposed rule, a UBE includes limited partnerships (LPs), limited 
liability partnerships (LLPs), limited liability limited partnerships 
(LLLPs), limited liability companies (LLCs), and any other 
unincorporated business entities, such as unincorporated business 
trusts, organized under State law. This rule does not apply to UBEs 
that one or more System institutions may establish as Rural Business 
Investment Companies (RBICs) pursuant to the institutions' authority 
under the provisions of title VI of the Farm Security and Rural 
Investment Act of 2002, as amended

[[Page 56572]]

(FSRIA), and United States Department of Agriculture (USDA) regulations 
implementing FSRIA. This rule does apply, however, to System 
institutions that organize UBEs for the express purpose of investing in 
RBICs.

DATES: Comments on this proposed rule must be submitted on or before 
November 13, 2012.

ADDRESSES: We offer a variety of methods for you to submit your 
comments. For accuracy and efficiency reasons, commenters are 
encouraged to submit comments by email or through the FCA's Web site. 
As facsimiles (fax) are difficult for us to process and achieve 
compliance with section 508 of the Rehabilitation Act, we do not accept 
comments submitted by fax. Regardless of the method you use, please do 
not submit your comment multiple times via different methods. You may 
submit comments by any of the following methods:
     Email: Send us an email at reg-comm@fca.gov.
     FCA Web site: http://www.fca.gov. Select ``Public 
Commenters,'' then ``Public Comments,'' and follow the directions for 
``Submitting a Comment.''
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Barry F. Mardock, Deputy Director, Office of 
Regulatory Policy, Farm Credit Administration, 1501 Farm Credit Drive, 
McLean, VA 22102-5090.

You may review copies of all comments we receive at our office in 
McLean, Virginia, or from our Web site at http://www.fca.gov. Once you 
are in the Web site, select ``Public Commenters,'' then ``Public 
Comments,'' and follow the directions for ``Reading Submitted Public 
Comments.'' We will show your comments as submitted, but for technical 
reasons we may omit items such as logos and special characters. 
Identifying information you provide, such as phone numbers and 
addresses, will be publicly available. However, we will attempt to 
remove email addresses to help reduce Internet spam.

FOR FURTHER INFORMATION CONTACT:
Elna Luopa, Senior Corporate Analyst, Office of Regulatory Policy, Farm 
Credit Administration, McLean, VA 22102-5090, (703) 883-4414, TTY (703) 
883-4434,
or
Wendy Laguarda, Assistant General Counsel, Office of General Counsel, 
Farm Credit Administration, McLean, VA 22102-5090, (703) 883-4020, TTY 
(703) 883-4020.

SUPPLEMENTARY INFORMATION: 

I. Objectives

    The objectives of this proposed rule are to:
     Affirm FCA's authority to regulate and examine the System 
institutions' use of UBEs, including the authority to impose any 
conditions FCA deemed necessary and appropriate on UBE business 
activity, and to take enforcement action against System institutions' 
activities involving UBEs;
     Prohibit System institutions from using UBEs to engage in 
direct lending or any activity that exceeds their authority under the 
Act or circumvents the application of cooperative principles;
     Limit the amount of a System institution's equity 
investments in UBEs;
     Create a process for FCA review and approval of requests 
by System institutions to organize or invest in UBEs for certain 
business activity;
     Establish standards for the proper and adequate disclosure 
and reporting of System UBE activity; and
     Ensure that the System's use of UBEs remains transparent 
and free from conflicts of interest.

II. Background

    Beginning in the early 1980s, FCA approved joint ventures among 
System institutions, as well as System institution contractual 
alliances with non-System entities, that sought to improve the 
reliability and delivery of authorized products and services to 
agriculture and rural America. These collaborative initiatives enabled 
System institutions to provide services and products more efficiently 
and inexpensively, resulting in improved and less costly services and 
products to the farmer and rancher System borrowers and rural 
communities.
    Business models and structures have significantly evolved since the 
1980s, as more and more States have adopted uniform statutes governing 
unincorporated, largely limited liability, business structures. The 
System's use of UBEs has been a logical outgrowth of its earlier 
collaborative initiatives implemented through joint ventures and 
alliances. Like these earlier joint initiatives, UBEs enable the System 
to provide more efficient, less costly services and products to the 
agricultural or rural community, but through more sophisticated, formal 
and flexible structures that address ownership rights, management, 
operations, assumptions of liability, allocation of profits and losses 
and payment of taxes. Further, UBEs have the added advantage of 
providing more protection for System stockholders by enabling a System 
institution to limit its liability to the amount of its equity 
investment in a UBE.

III. The Statutory Basis for the Proposed Rule

A. System Institutions' Authority

    The System's existing investment \1\ and incidental powers \2\ 
provide the authorities for System institutions to invest in and form 
UBEs for certain business activity. Specifically, under Sec.  
615.5140(e), System institutions may exercise their investment 
authorities to invest in ``other investments approved by the FCA'' 
provided the funding bank has approved the investment. System 
investments in UBEs fall under this category, and may be approved by 
FCA upon a request that explains the risk characteristics of the 
investment and the System institution's purpose and objectives for 
making the investment.
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    \1\ Sections 1.5(15) and 3.1(13)(A) of the Act set forth the 
investment authorities for System banks. Sections 2.2(10) and 
2.12(18) of the Act set forth the investment authorities for System 
associations. FCA regulations in subpart E of part 615 imbue service 
corporations, chartered under section 4.25 of the Act, with the same 
investment authorities as their organizing System banks and 
associations.
    \2\ Sections 1.5(3), (15) and (21); 2.2(3), (10) and (20); 
2.12(3), (18) and (19); 3.1(3) and (16) of the Act.
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    Unlike the express authority to organize service corporations under 
sections 4.25 and 4.28(A) of the Act,\3\ no provision under the Act 
explicitly authorizes System institutions to organize entities under 
State law to engage in business activity. However, Congress has long 
encouraged coordinated initiatives by System institutions to provide 
joint products, services or functions to System borrowers. We note that 
the farmer-owned, cooperative and jointly liable System, by its very 
establishment, is designed to accomplish the most efficient and 
effective delivery system of credit and related services to agriculture 
and its producers and rural communities. Moreover, various provisions 
in the Act have authorized or directed System institutions to offer 
joint products or services. The same year that Congress added the 
service

[[Page 56573]]

corporation authority to the Act (1980), it also directed System 
institutions to establish programs for young, beginning and small (YBS) 
farmers and ranchers ``in coordination with other units of the Farm 
Credit System serving the territory and with other governmental and 
private sources of credit.'' \4\ These 1980 additional authorities 
evidence Congress' intention that System institutions be able to 
provide coordinated services and products to System borrowers and rural 
communities using business structures that can best facilitate such 
efforts.
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    \3\ Section 4.25 and 4.28(A), added to the Act in 1980, 
expressly authorize System banks and associations to organize 
service corporations. Congress stated that this authority was needed 
to provide a more efficient way for System banks to coordinate 
services. Service corporations, like System banks and associations, 
are federally chartered instrumentalities and subject to the same 
FCA supervisory, regulatory and enforcement oversight as System 
banks and associations. Service corporations are authorized to 
provide the same functions and services as banks and associations 
with two significant exceptions: they cannot extend credit or 
provide insurance services.
    \4\ Section 4.19 of the Act.
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    In fact, System institutions, with FCA approval, have been using 
their incidental authority to enter into non-corporate joint ventures 
to promote coordinated and expedient initiatives, which in recent years 
have included State-chartered UBEs.
    This proposed rule will provide a more uniform approval and 
oversight process for the System's continuing use of UBEs. The rule 
emphasizes that incidental powers can neither be the basis for 
broadening or circumventing the limitations and restrictions of a 
System institution's express powers in carrying on the business of the 
bank or association nor used to engage in activities that are 
impermissible under the Act. The delivery of System credit, services 
and other products will still chiefly be provided by System 
institutions' direct use of their express powers to serve their 
eligible borrowers and customers. As a Government-sponsored enterprise 
(GSE) of cooperative institutions owned and controlled by their member-
borrowers, it is essential that System institutions maintain their 
strong cooperative traditions and reputations.\5\
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    \5\ This perspective is noted in the FCA Board's Policy 
Statement (FCA-PS-80) on Cooperative Operating Philosophy--Serving 
the Members of Farm Credit System Institutions, dated October 14, 
2010, and published in the Federal Register at 75 FR 64728 on 
October 20, 2010.
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    In recognizing changing business practices through the System's use 
of UBEs, the preservation of the System's member-focused principles 
remains paramount. This proposed rule would therefore prohibit System 
institutions from engaging in direct lending activities or any other 
activity through UBEs that circumvents the application of cooperative 
principles such as borrower rights, stock ownership, voting rights or 
patronage.
    Finally, to provide transparency to the public, FCA intends to post 
on its Web site the name and business purpose of UBEs organized and 
controlled by one or more System institutions that are approved under 
this rule.

B. FCA Authority Over System Investments in UBEs and UBE Business 
Activity

    Under part C of title V of the Act, FCA has the ability to take an 
enforcement action against a System institution in connection with its 
equity investment in and use of a UBE for business activity to ensure 
an institution's safety and soundness.

IV. Section-by-Section Analysis

A. Unincorporated Business Entities [New Sec. Sec.  611.1150 Through 
611.1158]

    We propose adding a new subpart J to part 611 that would address 
the purpose and scope of unincorporated business entities organized or 
invested in by System institutions. Subpart J includes provisions on: 
(1) Definitions; (2) FCA's regulatory, examination, enforcement, and 
assessment authorities; (3) general restrictions and prohibitions on 
the use of UBEs; (4) notice-only requirements for certain activities 
conducted through UBEs; (5) FCA's review process for UBEs not meeting 
the notice-only provisions; (6) ongoing requirements; (7) disclosure 
and reporting requirements; and (8) transparency and conflict of 
interest requirements. Subpart J also contains a grandfather provision 
for those UBEs previously approved by FCA on a case-by-case basis and 
for those UBEs established under the guidance provided in FCA 
Bookletter BL-057,\6\ which may be rescinded once a final rule becomes 
effective.
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    \6\ FCA Bookletter BL-057 on ``Use of State-Chartered Business 
Entities to Hold Acquired Property,'' dated April 2, 2009, provides 
guidance on the System's use of UBEs to acquire and manage unusual 
or complex collateral associated with loans.
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1. Purpose and Scope [New Sec.  611.1150]
    Proposed Sec.  611.1150 affirms that System institutions have 
incidental power as may be necessary or expedient to carry on the 
business of the bank or association, as applicable. In exercising this 
incidental power, System institutions may continue to establish UBEs, 
provided the UBE business activity is necessary or expedient to the 
System institution's express authorities in carrying on the business of 
the bank or association and falls within the parameters of the rule.
    The proposed rule would apply to any System institution that 
organizes or invests in a UBE for the delivery of services or 
functions. This proposed rule also pertains to any System institution 
that has an equity investment in a System-organized and controlled UBE 
regardless of the amount of the investment. The proposed rule would 
also apply to any System institution that is a partner or member of a 
UBE organized to acquire and manage unusual or complex collateral 
associated with loans under FCA Bookletter BL-057.
    Except as authorized by this rule, System institutions cannot 
manage, control, or invest in any State-chartered or organized business 
entity. The proposed rule would not permit System institutions to make 
equity investments in UBEs that are organized, controlled or managed by 
a non-System entity (third-party UBE) except as may be approved by FCA 
under Sec.  615.5140(e) for de minimis and passive investments. Such 
approvals would be considered outside of this rule.
    As previously stated, this rule is not applicable to any UBEs that 
System institutions may establish as RBICs under their separate 
statutory authority. System institutions' activities under the RBIC 
authority must be carried out in accordance with the authority of and 
regulations issued by USDA.\7\ However, this rule does apply to System 
institutions that organize UBEs for the express purpose of investing in 
a RBIC.
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    \7\ Public Law 107-171, title VI, sec. 6029 (2002), as amended 
by the Food, Conservation, and Energy Act of 2008, Public Law 110-
246, title VI, sec. 6027, and USDA regulations at 7 CFR 4290.10 
through 4290.3099. FCA has the authority to ensure that a System 
institution's investment in a RBIC is safe and sound and that they 
operate the RBIC in accordance with law and regulation.
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2. Definitions [New Sec.  611.1151]
    We propose a definitions section in Sec.  611.1151 that defines the 
following relevant terms used in the proposed rule.
    Articles of Formation refers to the relevant State documents on the 
establishment, ownership, and operation of a UBE and includes 
registration certificates, charters, articles of organization, 
partnership agreements, membership or trust agreements, operating, 
administration or management agreements, fee agreements, or any other 
documentation on the establishment, ownership or operation of a UBE.
    Control \8\ distinguishes whether a System institution controls the 
business

[[Page 56574]]

activities, operations, and actions of the UBE. Control means that one 
System institution, directly or indirectly, owns more than 50 percent 
of the UBE's equity or serves as the general partner\9\ of an LLLP or 
constitutes the sole manager or is the managing member of a UBE. 
However, under generally accepted accounting principles (GAAP), the 
power to control may also exist with a lesser percentage of ownership, 
for example, if a System institution is the UBE's primary beneficiary; 
exercises significant influence over the UBE; or establishes control 
under other facts and circumstances in accordance with GAAP.
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    \8\ The term control as it is used in the context of this 
proposed rule is based on the guidance provided in Generally 
Accepted Accounting Principles (GAAP) under the Financial Accounting 
Standards Board's Accounting Standards Codification (ASC). See 
primary discussion of control at ASC 810-10-15 and ASC 810-10-25; 
significant influence over an investment at ASC 323-10-15; and 
control for limited partnerships and similar entities, including 
LLCs, etc. at ASC 810-20-25. See also proposed Accounting Standards 
Update 2011-220 for possible revisions to these sections.
    \9\ The rule would allow a System institution to serve as a 
general partner of an LLLP, but not an LP, since the liability for 
the partnership's debts and obligations is limited to the amount 
invested by the general partner in an LLLP but not in an LP. We note 
that an LLP does not have a general partner because all partners in 
an LLP have limited liability.
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    Under this definition, a System institution also will be deemed to 
have control over the UBE if it exercises decision-making authority in 
a principal capacity of the UBE as defined under GAAP.
    A System institution must divest its ownership interest or withdraw 
as a member or partner from any UBE as soon as practicable if, after a 
System institution organizes or invests in a System-controlled UBE, 
non-System persons or entities obtain control as defined under GAAP. 
Alternatively, as soon as practicable the non-System persons or 
entities must relinquish control as defined under GAAP.
    Equity investment means a System institution's contribution of 
money or assets to the operating capital of a UBE that provides 
ownership rights in return. The term is meant to include any such 
contribution of money or assets regardless of the terminology that 
might be used in an individual State's statute or regulations. The 
definition of equity investment does not include the costs of 
organizing a UBE, such as the cost of the articles of formation, 
attorney fees, filing fees, etc.
    System institution refers to each System bank under titles I or III 
of the Act, each association under title II of the Act, and each 
service corporation chartered by FCA under section 4.25 of the Act.
    Third-party UBE means any UBE that is owned or controlled by one or 
more non-System persons or entities.
    UBE is an acronym for Unincorporated Business Entity. As defined 
for purposes of this proposed rule, the term ``UBE'' includes 
unincorporated business entities that are formally established and 
maintained through applicable State law, such as limited partnerships, 
limited liability companies, and business or other trust entities.
    UBE Business Activity refers to the delivery of services or 
functions by a UBE for one or more System institutions.
3. Regulation, Examination, Enforcement, and Assessment Authority [New 
Sec.  611.1152]
    Proposed Sec.  611.1152 affirms that FCA has full regulatory, 
supervisory, oversight, examination and enforcement authority over 
System institutions in connection with their equity investments in and 
control of UBEs and the services and functions that a UBE performs for 
the System institution. Such authority includes FCA's right to require 
a System institution to withdraw from a UBE through dissolution or 
disassociation or to divest of any investment in a UBE. Sections 
5.17(a)(5), 5.17(a)(10), and 5.25(a) of the Act, as well as Sec.  
615.5354, also give FCA the authority to condition the approval of a 
System institution's equity investment in a UBE. The FCA's use of these 
authorities ensures that System institutions providing certain 
functions and services through State-organized or chartered UBEs remain 
safe and sound and operate in accordance with law and regulations.
    Finally, this proposed section provides that the cost of regulating 
and examining equity investments in UBEs and the services and functions 
that UBEs can perform for System institutions will be subject to FCA's 
assessment authority under section 5.15 of the Act.
4. General Restrictions and Prohibitions on the Use of UBEs [New Sec.  
611.1153]
    Proposed Sec.  611.1153 sets forth certain general restrictions on 
any function, service or activity that a System institution(s) conducts 
through a UBE. These restrictions would ensure that the System 
continues to operate in a safe and sound manner and that its status as 
a cooperative system of lending institutions and a GSE is not 
jeopardized through the use of UBEs.
    The first restriction would provide that any business a System 
institution conducts through a UBE must be necessary or expedient to 
the business of the System institution. A UBE cannot be used to deliver 
services or functions or to engage in any activity that a System 
institution itself could not engage in under the Act or implementing 
regulations.
    A second restriction would protect the integrity of the System's 
cooperative structure by prohibiting System institutions from engaging 
in direct lending activities or from engaging in any other activity 
through the use of a UBE that would circumvent the application of 
cooperative principles, as determined by FCA, including borrower 
rights, stock ownership, voting rights or patronage.
    A third restriction would ensure that the use of a UBE by a System 
institution is transparent to the public and free from conflicts of 
interest. This provision would require that a UBE be held out to the 
public as a separate or subsidiary entity; the business transactions, 
accounts and records of the UBE are not commingled with those of the 
System institution; and all transactions between officers, employees 
and agents of the UBE and a System institution are conducted at arm's 
length, in the interest of the System institution, and in compliance 
with the standards of conduct rules in 12 CFR part 612, subpart A.
    A fourth restriction would limit a single System institution from 
conducting business through a one-member UBE, such as a limited 
liability company, other than for the limited purposes of: (1) 
Acquiring and managing unusual or complex collateral associated with 
loans, as set forth under the guidance of FCA Bookletter BL-057; and 
(2) providing electronic transaction, fixed asset, trustee or other 
similar services that are integral to the daily internal operations of 
System institutions.
    We are proposing this limitation for a number of reasons. First, 
the Agency does not want to set in motion a proliferation of System-
controlled UBEs organized for numerous purposes by a single System 
institution. Such a proliferation could create a costly administrative 
burden for the Agency and complicate FCA's oversight authority. 
Moreover, the creation of one-member UBEs does not foster System 
collaborative efforts aimed at providing more efficient System 
operations and improved services to agriculture, agricultural 
producers, and rural America. Just as Congress encouraged System 
collaboration through the creation of the 4.25 service corporations, 
the use of UBEs would, generally, be reasonable and supportable from a 
business perspective when undertaken through System institution 
partnerships or multi-member limited liability companies. Finally, 
without reasonable and supportable reasons to form a UBE,

[[Page 56575]]

including a one-member UBE, System institutions should conduct all 
aspects of their business activity either directly or through a service 
corporation under section 4.25 of the Act.
    Regardless of the limitations on one-member UBEs, we recognize that 
the use of a UBE to perform services integral to a System institution's 
daily internal operations, as noted above, may lessen administrative 
burdens and reduce costs for a System institution. FCA may determine 
that some of these integral and internal services that a UBE, including 
a one-member UBE, could provide would become eligible for the notice 
provision in proposed Sec.  611.1154. If so, we would inform System 
institutions of this development through an FCA Bookletter or other 
similar means.
    We note that, under the agricultural credit association (ACA) 
structure, the ACA and its subsidiary production credit association 
(PCA) and Federal land credit association (FLCA) are treated by FCA as 
one entity for most regulatory purposes. Also, we note that an 
Agricultural Credit Bank (ACB) and its Farm Credit Bank (FCB) 
subsidiary are treated by FCA as a single entity for most regulatory 
purposes. Therefore, we would consider any UBE formed solely between an 
ACA and its subsidiary PCA and FLCA or an ACB and its subsidiary FCB as 
a one-member UBE (and not a multi-member UBE) that could be organized 
only for the limited purposes set forth above.
    A fifth restriction would limit a UBE organized as a partnership to 
one that is established between or among two or more System 
institutions that do not have a common board of directors. An ACA and 
its PCA and FLCA subsidiaries, which operate under a common board of 
directors, are treated by FCA as one entity for most regulatory 
purposes, and could not create a partnership between or among 
themselves under this rule. Similarly, an ACB and its FCB subsidiary, 
also treated by FCA as one entity for most regulatory purposes, could 
not create a partnership between themselves.
    A sixth restriction would prohibit one or more System institutions 
that organize or invest in a UBE from creating a subsidiary of the UBE, 
or enabling the UBE to create its own subsidiary or any other type of 
affiliated entity. This restriction is essential given FCA's 
obligations as an independent, safety and soundness regulator of a GSE. 
The complex arrangements that could possibly be established between 
System-owned or controlled UBEs and other special purpose vehicles 
currently permitted under various State laws could, as stated above, 
create a costly administrative burden for the Agency and complicate 
FCA's regulatory, examination, and enforcement oversight of the 
System's safety and soundness. For this reason, we are prohibiting 
System institutions from propagating additional subsidiaries or any 
other affiliated entities through their UBEs.
    A seventh restriction requires that a System institution's 
liability be limited to the amount of the institution's equity 
investment in the UBE, thus preserving a significant benefit for the 
use of such a business structure--the concept of limited liability. 
Therefore, System institutions could not serve as a general partner in 
those UBEs organized as limited partnerships.
    An eighth restriction would limit the aggregate amount of equity 
investments that a System institution is authorized to hold in all UBEs 
to one percent of the institution's total outstanding loans calculated 
at the time of each investment. The proposed rule allows FCA to approve 
an exception to this limitation on a case-by-case basis. In addition, 
FCA may impose a limitation that is lower than the one-percent 
aggregate limit based on safety or soundness and other relevant 
concerns. We believe this limit to be reasonable given that such an 
investment imposes a financial liability on a System institution up to 
the amount of its total investments in UBEs. Such an investment remains 
at-risk; it is recovered only after the System institution sells its 
interest to other investors or the UBE owners receive some of the 
proceeds from the liquidated assets of the UBE (if any such proceeds 
remain after satisfying all other obligations of the UBE). To calculate 
the investment limit under proposed Sec.  611.1153(h), the rule would 
require that equity investments held by a service corporation be 
attributed to its System institution bank and association owners based 
on their percentage of ownership of the service corporation. This limit 
would not apply to equity investments made in one-member UBEs organized 
to acquire and manage unusual or complex collateral associated with 
loans.
    The ninth restriction prohibits a System institution from making 
any equity investment in a third-party UBE except as may be authorized 
by FCA on a case-by-case basis under Sec.  615.5140(e) for de minimis 
and passive investment purposes (such requests would be considered 
outside of this rule). Also, a System institution is prohibited from 
being named as the general partner, manager or primary beneficiary of a 
third-party UBE. Such arrangements have the potential to subject a 
System institution to liability and reputational risks created by the 
third-party UBE and to result in actual or apparent conflicts of 
interest that neither a System institution nor FCA could adequately 
control. Finally, such arrangements could dilute the Agency's oversight 
of System activities and diminish FCA's ability to ensure the safety 
and soundness of the System.
    A final restriction would prohibit non-System entities or persons 
from holding any equity interest in a System-controlled UBE with one 
exception. Non-System entities or persons would be able to hold up to 
20 percent of the equity of a System-controlled UBE that is organized 
to provide services integral to the daily internal operations of a 
System institution. This percentage of non-System ownership is the same 
non-System ownership percentage that FCA regulations currently permit 
for service corporations organized by one or more System institutions 
under section 4.25 of the Act. The ninth and final restrictions do not 
apply to UBEs formed for the purpose of acquiring and managing unusual 
or complex collateral associated with multiple-lender loan transactions 
in which non-System persons or entities are participants.
5. Notice-Only Requirement for Certain UBE Equity Investments [Sec.  
611.1154]
    In proposed Sec.  611.1154, we describe the specific types of UBEs 
that a System institution may organize or invest in by providing 
sufficient advance notice to the FCA. This section also sets forth the 
specific information that a System institution must include in its 
notice as well as where the notice must be filed.
    This ``notice-only'' provision would be limited to the following 
UBEs:
    a. Those engaged in acquiring and managing the unusual or complex 
collateral associated with loans as described in FCA Bookletter BL-057, 
dated April 2, 2009; and
    b. Those providing hail or multi-peril crop insurance services in 
accordance with Sec.  618.8040.

FCA may determine that other UBE business activity is also appropriate 
for this ``notice-only'' provision and, in such an event, would notify 
all System institutions by bookletter or other means. Only System 
institutions with a composite FIRS rating of 1 or 2 would qualify for 
the ``notice-only'' provision. All other System institutions that 
intend to form or invest in a UBE must obtain FCA's prior approval 
under the provisions in Sec.  611.1155 regardless of the nature or 
purpose of the intended UBE.

[[Page 56576]]

    A System institution that qualifies for the ``notice-only'' 
provision would be required to submit articles of formation as defined 
in Sec.  611.1151 that address basic information on the UBE's 
ownership, control, and operations. The System institution would also 
need to specify the dollar amount of its investment in the UBE and 
provide a certified resolution from its board of directors that the 
board has authorized the UBE investment and business activity and has 
given its approval to submit the notice to FCA. A letter from the 
funding bank that the bank has approved such investment would also be 
required. For those System institutions forming a UBE for hail or 
multi-purpose crop insurance services, or for other UBE activity that 
FCA determines appropriate for the ``notice-only'' provision, the 
notice would need to include a statement from the board of directors 
explaining the operating efficiencies and benefits to be gained from 
the conduct of business through a UBE. The statement must also affirm 
that the UBE is necessary or expedient to the institution's business; 
that it will operate with transparency; that it will operate in a 
manner that prevents conflicts of interest between the UBE and the 
institution itself; that the UBE will comply with all applicable 
Federal, State, and local laws; and that the UBE will not be used by 
the System institution to make direct loans, perform any functions, or 
provide any services that the System institution is not authorized to 
provide under the Act and FCA regulations or that go beyond the stated 
purpose of the UBE. FCA may require additional information under the 
notice provision or allow the omission of some information. Finally, 
System institutions that organize or invest in UBEs under this 
``notice-only'' provision must comply with the ongoing requirements and 
disclosure and reporting requirements of Sec. Sec.  611.1156 and 
611.1157, respectively.
6. Approval Process [New Sec.  611.1155]
    In Sec.  611.1155, we describe the documents that FCA would require 
to review a request for approval to organize or invest in a UBE if the 
request would not qualify for the ``notice-only'' provision in Sec.  
611.1154. We would ask a System institution to explain the risk 
characteristics of the investment, the initial amount of equity it 
plans to invest in the UBE, the purpose of the UBE, and its objectives. 
A System institution must provide support for its need to establish or 
invest in a UBE. We would also ask for a statement on the operating 
efficiencies that the System institutions expect to achieve and the 
benefits they expect to derive from using the UBE. A System institution 
would be required to submit the articles of formation defined in Sec.  
611.1151 that address basic information on the UBE's ownership, 
management structure, and operations. We would also require a certified 
resolution of the institution's board of directors approving the equity 
investment in the UBE and the UBE's business activity as well as a 
letter from the funding bank that it has approved the institution's 
investment in the UBE. In addition, we would require that an 
institution's board of directors provide us with a statement that the 
UBE is necessary or expedient to the institution's business; that it 
will operate with transparency; that it will operate in a manner that 
prevents conflicts of interest between the UBE and the institution 
itself; that the UBE will comply with all applicable Federal, State, 
and local laws; and that the UBE will not be used by the System 
institution to make direct loans, perform any functions, or provide any 
services that the System institution is not authorized to provide under 
the Act and FCA regulations or that go beyond the stated purpose of the 
UBE. The institutions may also submit any other information they deem 
necessary. FCA may require additional information or allow the omission 
of some information depending on the complexity of the UBE request. If 
FCA denies approval of the request, we will specify in writing our 
reasons for denial.
7. Ongoing Requirements [New Sec.  611.1156]
    Any System institution that organizes or invests in a UBE for the 
delivery of services or functions under the provisions of this rule 
would be expected to maintain and ensure FCA's access to all documents 
and records of the UBE. Also, a System institution would need to be 
prepared to divest its ownership interest or withdraw as a member or 
partner from any UBE that conducts activities beyond its approved 
limited purpose or that are contrary to the Act or FCA regulations. 
Under the proposed rule, if the FCA directed the System institution to 
divest its equity investment in, or withdraw as a member, partner, 
general partner, managing member or primary beneficiary of, a System-
owned and controlled UBE, the institution would be required to do so as 
soon as practicable.
    If a System institution fails to divest its equity investment in, 
or withdraw as a member, partner, general partner, managing member or 
primary beneficiary of, a System-owned and controlled UBE, as directed 
by the FCA within a reasonable period of time, such institution may be 
subject to an enforcement action pursuant to FCA's enforcement 
authority under part C of title V of the Act.
8. Disclosure and Reporting Requirements [Sec.  611.1157]
    All System institutions that hold equity investments in UBEs would 
be required to include information about their equity investments and 
business activities in their annual reports to shareholders. We propose 
amending Sec.  620.5, which prescribes the content of the annual report 
to shareholders, to include this requirement. FCA could also direct 
that System institutions holding equity investments in UBEs make 
periodic reports to FCA as required by Sec.  621.12.
    System institutions with UBEs that are grandfathered under the rule 
through the provision in Sec.  611.1158 (discussed below) would be 
subject to the ongoing requirements of Sec.  611.1156 and all 
disclosure and reporting requirements of Sec.  611.1157.
    We also propose that a System institution dissolving a UBE that it 
controls be required to provide a timely report to FCA when the 
dissolution occurs. This reporting will enable FCA to have current 
information on the status of UBE activity.
9. Grandfather Provision [New Sec.  611.1158]
    We propose grandfathering from the Notice and Approval provisions 
of the rule a System institution's organization of, or investment in, a 
UBE that received specific, written approval by FCA prior to the date 
this proposed rule would become effective as a final rule. We would 
also grandfather those UBEs organized pursuant to the guidance in FCA 
Bookletter BL-057. All System institutions grandfathered would remain 
subject to the conditions of approval imposed at the time of FCA's 
approval and be subject to the ongoing requirements of Sec.  611.1156 
and the disclosure and reporting requirements of Sec.  611.1157. System 
institutions so grandfathered could not change or expand the UBE 
business activity, ownership interests in, or control of the UBE 
without providing notice to FCA at least 20 business days in advance of 
any change. If FCA determined that the proposed change or expansion is 
material, it could require the System institutions to submit a new 
approval request under Sec.  611.1155.

[[Page 56577]]

B. Other Miscellaneous Changes

    We propose conforming changes to various FCA regulatory sections to 
delete terms made obsolete by a final UBE rule and to add new 
regulatory sections cross-referenced in this proposed regulation.
Regulatory Flexibility Act
    Pursuant to section 605(b) of the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.), the FCA hereby certifies that the proposed rule 
would not have a significant economic impact on a substantial number of 
small entities. Each of the banks in the Farm Credit System, considered 
together with its affiliated associations, has assets and annual income 
in excess of the amounts that would qualify them as small entities. 
Therefore, Farm Credit System institutions are not ``small entities'' 
as defined in the Regulatory Flexibility Act.

List of Subjects

12 CFR Part 604

    Sunshine Act.

12 CFR Part 611

    Agriculture, Banks, banking, Rural areas.

12 CFR Part 612

    Agriculture, Banks, banking, Conflict of interests, Crime, 
Investigations, Rural areas.

12 CFR Part 619

    Agriculture, Banks, banking, Rural areas.

12 CFR Part 620

    Accounting, Agriculture, Banks, banking, Reporting and 
recordkeeping requirements, Rural areas.

12 CFR Part 621

    Accounting, Agriculture, Banks, banking, Penalties, Reporting and 
recordkeeping requirements, Rural areas.

12 CFR Part 622

    Administrative practice and procedure, Crime, Investigations, 
Penalties.

12 CFR Part 623

    Administrative practice and procedure.

12 CFR Part 630

    Accounting, Agriculture, Banks, banking, Organization and functions 
(Government agencies), Reporting and recordkeeping requirements, Rural 
areas.

    For the reasons stated in the preamble, parts 604, 611, 612, 619, 
620, 621, 622, 623, and 630 of chapter VI, title 12 of the Code of 
Federal Regulations are proposed to be amended as follows:

PART 604--FARM CREDIT ADMINISTRATION BOARD MEETINGS

    1. The authority citation for part 604 continues to read as 
follows:

    Authority: Secs. 5.9, 5.17 of the Farm Credit Act (12 U.S.C. 
2243, 2252).


Sec.  604.420  [Amended]

    2. Section 604.420 is amended by removing the words ``service 
organizations'' in paragraph (i)(1) and adding in their place, the 
words ``service corporations chartered under the Act.''

PART 611--ORGANIZATION

    3. The authority citation for part 611 is revised to read as 
follows:

    Authority: Secs. 1.2, 1.3, 1.4, 1.5, 1.12, 1.13, 2.0, 2.1, 2.2, 
2.10, 2.11, 2.12, 3.0, 3.1, 3.2, 3.3, 3.7, 3.8, 3.9, 3.21, 4.3A, 
4.12, 4.12A, 4.15, 4.20, 4.21, 4.25, 4.26, 4.27, 4.28A, 5.9, 5.17, 
5.25, 7.0-7.13, 8.5(e) of the Farm Credit Act (12 U.S.C. 2002, 2011, 
2012, 2013, 2020, 2021, 2071, 2072, 2073, 2091, 2092, 2093, 2121, 
2122, 2123, 2124, 2128, 2129, 2130, 2142, 2154a, 2183, 2184, 2203, 
2208, 2209, 2211, 2212, 2213, 2214, 2243, 2252, 2261, 2279a-2279f-1, 
2279aa-5(e)); secs. 411 and 412 of Pub. L. 100-233, 101 Stat. 1568, 
1638; sec. 414 of Pub. L. 100-399, 102 Stat. 989, 1004.


Sec.  611.1130  [Amended]

    4. Section 611.1130 is amended in the first sentence of paragraph 
(a) by removing the words ``service organizations organized under the 
Act'' and adding in their place, the words ``service corporations 
chartered under the Act''.
    5. Amend Part 611 by revising the heading of subpart I to read as 
follows:

Subpart I--Service Corporations


Sec.  611.1136  [Amended]

    6. Section 611.1136 is amended by:
    a. Revising the heading of Sec.  611.1136; and
    b. Removing the words ``and unincorporated service organizations'' 
in paragraph (c); and
    c. Removing the words ``service organizations'' each place they 
appear and adding in their place, the words ``service corporations''.
    The revision reads as follows:


Sec.  611.1136  Regulation and examination of service corporations.

    7. Part 611 is amended by adding a new subpart J, consisting of 
Sec. Sec.  611.1150 through 611.1158, to read as follows:

Subpart J--Unincorporated Business Entities

Sec.
611.1150 Purpose and scope.
611.1151 Definitions.
611.1152 Authority over equity investments in UBEs for business 
activity.
611.1153 General restrictions and prohibitions on the use of UBEs.
611.1154 Notice of equity investments in UBEs.
611.1155 Approval of equity investment in UBEs.
611.1156 Ongoing requirements.
611.1157 Disclosure and reporting requirements.
611.1158 Grandfather provision.


Sec.  611.1150  Purpose and scope.

    (a) Purpose. This subpart sets forth the parameters for one or more 
Farm Credit System (System) institutions to organize or invest in an 
Unincorporated Business Entity (UBE) in accordance with the Farm Credit 
Act of 1971, as amended (Act).
    (b) Scope. Except as authorized under these regulations, no System 
institution may manage, control, become a member or partner, or invest 
in a State-organized or chartered business entity. This rule applies to 
each System institution that organizes or invests in a UBE, including a 
UBE organized for the express purpose of investing in a Rural Business 
Investment Company. This rule does not apply to UBEs that one or more 
System institutions have the authority to establish as Rural Business 
Investment Companies pursuant to the provisions of title VI of the Farm 
Security and Rural Investment Act of 2002, as amended (FSRIA) and 
United States Department of Agriculture regulations implementing FSRIA.


Sec.  611.1151  Definitions.

    For purposes of this subpart, the following definitions apply:
    Articles of formation means registration certificates, charters, 
articles of organization, partnership agreements, membership or trust 
agreements, operating, administration or management agreements, fee 
agreements or any other documentation on the establishment, ownership, 
or operation of a UBE.
    Control means that one System institution, directly or indirectly, 
owns more than 50 percent of the UBE's equity or serves as the general 
partner of an LLLP, or constitutes the sole manager or the managing 
member of a

[[Page 56578]]

UBE. However, under generally accepted accounting principles (GAAP), 
the power to control may also exist with a lesser percentage of 
ownership, for example, if a System institution is the UBE's primary 
beneficiary, exercises significant influence over the UBE or 
establishes control under other facts and circumstances in accordance 
with GAAP. Under this definition, a System institution also will be 
deemed to have control over the UBE if it exercises decision-making 
authority in a principal capacity of the UBE as defined under GAAP.
    Equity investment means a System institution's contribution of 
money or assets to the operating capital of a UBE that provides 
ownership rights in return.
    System institution means each System bank under titles I or III of 
the Act, each System association under title II of the Act, and each 
service corporation chartered under section 4.25 of the Act.
    Third-party UBE means a UBE that is owned or controlled by one or 
more non-System persons or entities as the term ``control'' is defined 
under GAAP.
    UBE means a Limited Partnership (LP), Limited Liability Partnership 
(LLP), Limited Liability Limited Partnership (LLLP), Limited Liability 
Company (LLC), Business or other Trust Entity (TE), or other business 
entity established and maintained under State law that is not 
incorporated under any law or chartered under Federal law.
    UBE business activity means the services and functions delivered by 
a UBE for one or more System institutions.


Sec.  611.1152  Authority over equity investments in UBEs for business 
activity.

    (a) Regulation, supervisory, oversight, examination and enforcement 
authority. FCA has regulatory, supervisory, oversight, examination and 
enforcement authority over each System institution's equity investment 
in or control of a UBE and the services and functions that a UBE 
performs for the System institution. This includes FCA's authority to 
require a System institution's dissolution of, disassociation from, or 
divestiture of an equity investment in a UBE, or to otherwise condition 
the approval of equity investments in UBEs.
    (b) Assessing UBE investments and business activity. In accordance 
with section 5.15 of the Act and Sec.  607.2(h), the cost of regulating 
and examining equity investments in UBEs and the services and functions 
that UBEs can perform for System institutions will be taken into 
account when assessing a System institution for the cost of 
administering the Act.


Sec.  611.1153  General restrictions and prohibitions on the use of 
UBEs.

    (a) Authorized UBE business activity. All UBE business activity 
must be:
    (1) Necessary or expedient, as determined by the FCA, to the 
business of one or more System institutions owning the UBE; and
    (2) In no instance greater than the functions and services that one 
or more System institutions owning the UBE are authorized to perform 
under the Act and as determined by the FCA.
    (b) Circumvention of cooperative principles. System institutions 
are prohibited from using UBEs to engage in direct lending activities 
or any other activity that would circumvent the application of 
cooperative principles as determined by FCA, including borrower rights 
as described in section 4.14A of the Act, or stock ownership, voting 
rights or patronage as described in section 4.3A of the Act.
    (c) Transparency and the avoidance of conflicts of interest. Each 
System institution must ensure that:
    (1) The UBE is held out to the public as a separate or subsidiary 
entity;
    (2) The business transactions, accounts, and records of the UBE are 
not commingled with those of the System institution; and
    (3) All transactions between the UBE and System institution 
directors, officers, employees, and agents are conducted at arm's 
length, in the interest of the System institution, and in compliance 
with standards of conduct rules in Sec. Sec.  612.2130 through 
612.2270.
    (d) Limit on one-member UBEs. A UBE owned solely by a single System 
institution (including between and among a parent agricultural credit 
association and its production credit association and Federal land 
credit association subsidiaries and between a parent agricultural 
credit bank and its subsidiary Farm Credit Bank) as a one-member UBE is 
limited to the following special purposes:
    (1) Acquiring and managing the unusual or complex collateral 
associated with loans; and
    (2) Providing limited services such as electronic transaction, 
fixed asset, trustee or other services that are integral to the daily 
internal operations of a System institution.
    (e) Limit on UBE partnerships. A System institution operating 
through a parent-subsidiary structure may not create a UBE partnership 
between or among the parent agricultural credit association and its 
production credit association and Federal land credit association 
subsidiaries or between a parent Agricultural Credit Bank and its Farm 
Credit Bank subsidiary.
    (f) Prohibition on UBE subsidiaries. A System institution is 
prohibited from creating a subsidiary of a UBE that it has organized or 
invested in under this subpart or from enabling the UBE itself to 
create a subsidiary or any other type of affiliated entity.
    (g) Limit on potential liability.
    (1) Each System institution's equity investment in a UBE must be 
established in a manner that will limit potential exposure of the 
System institution to no more than the amount of its investment in the 
UBE.
    (2) A System institution cannot become a general partner of any 
partnership other than an LLLP.
    (h) Limit on amount of equity investment in UBEs. The aggregate 
amount of equity investments that a single System institution is 
authorized to hold in UBEs must not exceed one percent of the 
institution's total outstanding loans, calculated at the time of each 
investment. On a case-by-case basis, FCA may approve an exception to 
this limitation that would exceed the one-percent aggregate limit. 
Conversely, FCA may impose a percentage limit lower than the one-
percent aggregate limit based on safety or soundness and other relevant 
concerns. This one-percent aggregate limit does not apply to equity 
investments in one-member UBEs as permitted in paragraph (d)(1) of this 
section. Any equity investment made in a UBE by a service corporation 
must be attributed to its System institution owners based on the 
ownership percentage of each bank or association.
    (i) Prohibition on relationship with a third-party UBE. A System 
institution is prohibited from:
    (1) Making any equity investment in a third-party UBE except as may 
be authorized on a case-by-case basis under Sec.  615.5140(e) for de 
minimis and passive investments. Such requests would be considered 
outside of this rule.
    (2) Serving as the general partner or manager of a third-party UBE; 
or
    (3) Being designated as the primary beneficiary of a third-party 
UBE, either alone or with other System institutions.
    (j) Limitation on non-System equity investments. Non-System persons 
or entities may not invest in a UBE that is controlled by a System 
institution except that non-System persons or entities may own 20 
percent or less of the equity of a System-controlled UBE organized to 
deliver services integral to the daily internal operations of a System 
institution.

[[Page 56579]]

    (k) UBEs formed for acquiring and managing collateral. The 
provisions of paragraphs (i) and (j) in this section do not apply to 
UBEs formed for the purpose of acquiring and managing unusual or 
complex collateral associated with multiple-lender loan transactions in 
which non-System persons or entities are participants.


Sec.  611.1154  Notice of equity investments in UBEs.

    (a) Applicability. This notice provision is applicable only to 
System institutions that have a composite Financial Institution Rating 
System (FIRS) rating of 1 or 2 and wish to make an equity investment in 
UBEs whose activities are limited to the following purposes:
    (1) Acquiring and managing unusual or complex collateral associated 
with loans;
    (2) Providing hail or multi-peril crop insurance services in 
collaboration with another System institution in accordance with Sec.  
618.8040; and
    (3) Any other UBE business activity that FCA determines to be 
appropriate for this ``notice-only'' provision.
    (b) Notice requirements. A System institution must provide 
reasonable written notice to FCA. System institutions are encouraged to 
submit such notice as soon as possible, but it must be submitted no 
later than 20 business days in advance of making an equity investment 
in a UBE for authorized UBE business activity described in paragraph 
(a) of this section. The notice must include:
    (1) The UBE's articles of formation, including its name and the 
State in which it is organized, length of time it will exist, its 
partners or members, and its management structure;
    (2) The dollar amount of the System institution's equity investment 
in the UBE;
    (3) A certified resolution of the System institution's board of 
directors authorizing the equity investment in, and business activity 
of, the UBE and the board's approval to submit the notice to the FCA;
    (4) A letter from the funding bank that it has approved the 
institution's equity investment in the UBE;
    (5) For those UBEs identified in paragraphs (a)(2) and (3) of this 
section, a detailed statement from the System institution's board of 
directors that the UBE:
    (i) Is needed to achieve operating efficiencies and benefits;
    (ii) Is necessary or expedient to the System institution's 
business;
    (iii) Will operate with transparency;
    (iv) Will conduct its business activity in a manner designed to 
prevent conflicts of interest between its purpose and operations and 
the mission and operations of the System institution(s);
    (v) Will otherwise be in compliance with applicable Federal, State, 
and local laws; and
    (vi) Will not be used by the System institution to make direct 
loans; perform any functions or provide any services that the System 
institution is not authorized to perform or provide under the Act and 
FCA regulations; or to exceed the stated purpose of the UBE as set 
forth in its articles of formation.
    (6) Any additional information the System institution wishes to 
submit.
    (c) Supplementation or omission of information. FCA may require the 
supplementation or allow the omission of any information required under 
paragraph (b) of this section.
    (d) Other requirements. All System institutions under this 
``notice-only'' provision must also comply with the ongoing 
requirements and disclosure and reporting requirements set forth in 
Sec. Sec.  611.1156 and 611.1157, respectively, of this subpart.


Sec.  611.1155  Approval of equity investments in UBEs.

    (a) Request. System institutions must receive FCA approval before 
organizing or investing in any UBE that does not qualify for the 
``notice-only'' provision set forth in Sec.  611.1154 of this subpart. 
A request for approval under this section must include the following 
information:
    (1) A detailed statement of the risk characteristics of the 
investment, as required by Sec.  615.5140(e) and the initial amount of 
equity investment;
    (2) A detailed statement on the purpose and objectives of the UBE; 
the need for the UBE and the operating efficiencies and benefits that 
will be achieved by using the UBE;
    (3) The proposed articles of formation addressing, at a minimum, 
the following:
    (i) The UBE's name, the State in which it is organized, the city 
and State in which its principal office is to be located, and its 
partners or members; and management structure;
    (ii) Specific business activities that the UBE will conduct;
    (iii) General powers of the UBE;
    (iv) Ownership, voting, partnership, membership and operating 
agreements for the UBE;
    (v) Procedures to adopt and amend the partnership, membership or 
operating agreement of the UBE;
    (vi) The standards and procedures for the application and 
distribution of the UBE's earnings; and
    (vii) Length of time the UBE will exist.
    (4) A certified resolution of the System institution's board of 
directors authorizing the equity investment in the UBE and the UBE 
business activity and the board's approval to submit the request to the 
FCA.
    (5) A letter from the funding bank that it has approved the 
institution's equity investment in the UBE;
    (6) A statement from the System institution's board of directors 
that the UBE:
    (i) Is necessary or expedient to the System institution's business;
    (ii) Will operate with transparency;
    (iii) Will conduct its business activity in a manner designed to 
prevent conflicts of interest between its purpose and operations and 
the mission and operations of the System institution(s);
    (iv) Will comply with applicable Federal, State, and local laws; 
and
    (v) Will not be used by the System institution to make direct 
loans; perform any functions or provide any services that the System 
institution is not authorized to perform or provide under the Act and 
FCA regulations; or exceed the purpose of the UBE as stated in its 
articles of formation.
    (7) Any additional information the System institution wishes to 
submit or any other supporting documentation that FCA may request.
    (b) Supplementation or omission of information. FCA may require the 
supplementation or allow the omission of any information required under 
paragraph (a) of this section based on the complex or noncomplex nature 
of the proposed UBE.
    (c) Denial of a request. The FCA will specify in writing to the 
submitting System institutions the reasons for denial of any request to 
organize or invest in a UBE.


Sec.  611.1156  Ongoing requirements.

    A System institution that makes an equity investment in a UBE under 
Sec. Sec.  611.1154 or 611.1155 of this subpart must also comply with 
the following requirements:
    (a) Maintain and ensure FCA's access to all books, papers, records, 
agreements, reports and other documents of each UBE necessary to 
document and protect the institution's interest in each entity;
    (b) Divest, as soon as practicable, the institution's equity or 
beneficial interest in (or withdraw membership from) any UBE that 
conducts activities beyond those authorized to carry out its limited 
purpose or that are contrary to the Act or FCA regulations; and
    (c) Divest the institution's respective ownership or managerial 
duties in the UBE as soon as practicable, if directed to do so by FCA.

[[Page 56580]]

    (d) Divest the institution's ownership interest or withdraw as a 
member or partner from any UBE as soon as practicable if, after a 
System institution organizes or invests in a System-controlled UBE, 
non-System persons or entities obtain control as defined under GAAP. 
Alternatively, as soon as practicable, the non-System persons or 
entities must relinquish control as defined under GAAP. This paragraph 
does not apply to UBEs formed for the purpose of acquiring and managing 
unusual or complex collateral associated with multiple-lender loan 
transactions in which non-System persons or entities are participants.


Sec.  611.1157  Disclosure and reporting requirements.

    (a) Annual report to shareholders. In its annual report to 
shareholders, as set forth in Sec.  620.5(a)(12), a System institution 
must provide information on its UBE investment and business activity.
    (b) Periodic reports as directed. As directed by FCA, a System 
institution may be required to submit periodic reports to FCA on any 
equity investment in a UBE or UBE status as provided under Sec.  
621.12, and in accordance with Sec. Sec.  621.13 and 621.14.
    (c) Dissolution of a UBE. A System institution must submit a timely 
report to FCA on the dissolution of a UBE that it controls.


Sec.  611.1158  Grandfather provision.

    (a) Scope. The following equity investments in UBEs are 
grandfathered from the Notice and Approval provisions under Sec. Sec.  
611.1154 and 611.1155, respectively, of this subpart.
    (1) Those UBE formations or equity investments that received 
specific, written approval by FCA prior to the effective date of this 
regulation; and
    (2) Those UBEs organized to acquire or manage unusual or complex 
collateral associated with loans.
    (b) System institutions' obligations. All System institutions with 
grandfathered UBEs:
    (1) Remain subject to their conditions of approval;
    (2) Are subject to the ongoing requirements of Sec.  611.1156 and 
the disclosure and reporting requirements of Sec.  611.1157 of this 
subpart; and
    (3) May not change or expand the UBE business activity, ownership 
interests in, or control of the UBE without providing notice of such 
changes to FCA at least 20 business days in advance of any change or 
expansion. If the proposed change or expansion is determined to be 
material, FCA may require the System institution(s) to submit an 
``Approval'' request under Sec.  611.1155 of this subpart.

PART 612--STANDARDS OF CONDUCT AND REFERRAL OF KNOWN OR SUSPECTED 
CRIMINAL VIOLATIONS

    8. The authority citation for part 612 continues to read as 
follows:

    Authority: Secs. 5.9, 5.17, 5.19 of the Farm Credit Act (12 
U.S.C. 2243, 2252, 2254).

    9. Section 612.2130 is amended by revising paragraphs (p) and (t) 
to read as follows:


Sec.  612.2130  Definitions.

* * * * *
    (p) Service corporation means each service corporation chartered 
under the Act.
* * * * *
    (t) System institution and institution mean any bank, association, 
or service corporation in the Farm Credit System, including the Farm 
Credit Banks, banks for cooperatives, Agricultural Credit Banks, 
Federal land bank associations, agricultural credit associations, 
Federal land credit associations, production credit associations, the 
Federal Farm Credit Banks Funding Corporation, and service corporations 
chartered under the Act.

PART 619--DEFINITIONS

    10. The authority citation for part 619 is revised to read as 
follows:

    Authority: Secs. 1.4, 1.5, 1.7, 2.1, 2.2, 2.4, 2.11, 2.12, 3.1, 
3.2, 3.21, 4.9, 5.9, 5.17, 5.19, 7.0, 7.1, 7.6, 7.8, and 7.12 of the 
Farm Credit Act (12 U.S.C. 2012, 2013, 2015, 2072, 2073, 2075, 2092, 
2093, 2122, 2123, 2142, 2160, 2243, 2252, 2254, 2279a, 2279a-1, 
2279b, 2279c-1, 2279f); sec. 514 of Pub. L. 102-552, 106 Stat. 4102.

    11. Part 619 is amended by adding a new Sec.  619.9338 to read as 
follows:


Sec.  619.9338  Unincorporated business entities.

    An Unincorporated Business Entity means a Limited Partnership (LP), 
Limited Liability Partnership (LLP), Limited Liability Limited 
Partnership (LLLP), Limited Liability Company (LLC), Business or other 
Trust Entity (TE), or other business entity established and maintained 
under State law that is not incorporated under any law or chartered 
under Federal law.

PART 620--DISCLOSURE TO SHAREHOLDERS

    12. The authority citation for part 620 is revised to read as 
follows:

    Authority: Secs. 4.3, 4.3A, 4.19, 5.9, 5.17, 5.19 of the Farm 
Credit Act (12 U.S.C. 2154, 2154a, 2207, 2243, 2252, 2254); sec. 424 
of Pub. L. 100-233, 101 Stat. 1568, 1656; sec. 514 of Pub. L. 102-
552, 106 Stat. 4102.

    13. Section 620.5 is amended by:
    a. Removing the words ``service organization'' in paragraph (a)(3) 
and adding in their place, the words ``service corporation chartered 
under the Act''; and
    b. Adding a new paragraph (a)(11) to read as follows:


Sec.  620.5  Contents of the annual report to shareholders.

* * * * *
    (a) * * *
    (11) For banks and associations, business relationships with 
unincorporated business entities (UBEs).
    (i) Except as provided in Sec.  620.5(a)(12)(ii) of this section, 
describe the business relationship with any UBE, as defined in Sec.  
611.1151, that was organized by the bank or association or in which the 
bank or association has an equity interest. Include in the description 
the name of the UBE, the type of business entity, the purpose for which 
the UBE was organized, the scope of its activities, and the level of 
ownership. If the bank or association does not have an equity interest, 
but manages the operations of a UBE that is controlled by a System 
institution, describe this business relationship and any fees received.
    (ii) If the UBE is a one-member UBE as described in Sec.  
611.1153(d)(1), the bank or association need only disclose the name of 
the UBE, the type of business entity, and the purpose for which the UBE 
was organized.
* * * * *

PART 621--ACCOUNTING AND REPORTING REQUIREMENTS

    14. The authority citation for part 621 continues to read as 
follows:

    Authority: Secs. 5.17, 8.11 of the Farm Credit Act (12 U.S.C. 
2252, 2279aa-11); sec. 514 of Pub. L. 102-552.


Sec.  621.1  [Amended]

    15. Section 621.1 is amended by removing the words ``service 
organizations'' and adding in their place, the words ``service 
corporations''.


Sec.  621.2  [Amended]

    16. In Sec.  621.2 paragraph(e) is amended by removing the words 
``service organization'' and adding in their place, the words ``service 
corporation.''

[[Page 56581]]

PART 622--RULES OF PRACTICE AND PROCEDURE

    17. The authority citation for part 622 continues to read as 
follows:

    Authority: Secs. 5.9, 5.10, 5.17, 5.25-5.37 of the Farm Credit 
Act (12 U.S.C. 2243, 2244, 2252, 2261-2273); 28 U.S.C. 2461 note; 
and 42 U.S.C. 4012a(f).


Sec.  622.2  [Amended]

    18. In Sec.  622.2 paragraph (d) is amended by removing the words 
``service organization chartered under part E of title IV of the Act'' 
and adding in their place, the words ``service corporation chartered 
under the Act.''

PART 623--PRACTICE BEFORE THE FARM CREDIT ADMINISTRATION

    19. The authority citation for part 623 is revised to read as 
follows:

    Authority: Secs. 5.9, 5.10, 5.17, 5.25-5.37 of the Farm Credit 
Act (12 U.S.C. 2243, 2244, 2252, 2261-2273).


Sec.  623.2  [Amended]

    20. In Sec.  623.2 paragraph (d) is amended by removing the words 
``service organization chartered under part E of title IV of the Act'' 
and adding in their place, the words ``service corporation chartered 
under the Act.''

PART 630--DISCLOSURE TO INVESTORS IN SYSTEMWIDE AND CONSOLIDATED 
BANK DEBT OBLIGATIONS OF THE FARM CREDIT SYSTEM

    21. The authority citation for part 630 is revised to read as 
follows:

    Authority: Secs. 4.2, 4.9, 5.9, 5.17, 5.19 of the Farm Credit 
Act (12 U.S.C. 2153, 2160, 2243, 2252, 2254); sec. 424 of Pub. L. 
100-233, 101 Stat. 1568, 1656; sec. 514 of Pub. L. 102-552, 106 
Stat. 4102.


Sec.  630.20  [Amended]

    22. Section 630.20 is amended by removing the words ``service 
organization'' in paragraph (a)(2) and adding in their place, the words 
``service corporation.''

    Dated: September 6, 2012.
Dale L. Aultman,
Secretary, Farm Credit Administration Board.
[FR Doc. 2012-22382 Filed 9-12-12; 8:45 am]
BILLING CODE 6705-01-P