46 U.S.C. § 53713 — Administrative fees

Page 449 TITLE 46—SHIPPING § 53713 § 53712. Monitoring financial condition and oper- ations of obligor (a) IN GENERAL.—The Secretary or Adminis- trator shall monitor the financial condition and operations of the obligor on a regular basis dur- ing the term of the guarantee. The Secretary or Administrator shall document the results of the monitoring on an annual or quarterly basis de- pending on the condition of the obligor. If the Secretary or Administrator determines that the financial condition of the obligor warrants addi- tional protections to the Secretary or Adminis- trator, the Secretary or Administrator shall take appropriate action under subsection (b). If the Secretary or Administrator determines that the financial condition of the obligor jeopardizes its continued ability to perform its responsibil- ities in connection with the guarantee of an ob- ligation by the Secretary or Administrator, the Secretary or Administrator shall make an im- mediate determination whether default should take place and whether further measures de- scribed in subsection (b) should be taken to pro- tect the interests of the Secretary or Adminis- trator while ensuring that program objectives are met. (b) CONTRACT PROVISIONS TO PROTECT SEC- RETARY OR ADMINISTRATOR.—The Secretary or Administrator shall include provisions in a loan agreement with an obligor that provides addi- tional authority to the Secretary or Adminis- trator to take action to limit potential losses in connection with a defaulted loan or a loan that is in jeopardy due to the deteriorating financial condition of the obligor. If the Secretary or Ad- ministrator has waived a requirement under sec- tion 53707(d) of this title, the loan agreement shall include requirements for additional pay- ments, collateral, or equity contributions to meet the waived requirement upon the occur- rence of verifiable conditions indicating that the obligor’s financial condition enables the obligor to meet the waived requirement. (Pub. L. 109–304, § 8(c), Oct. 6, 2006, 120 Stat. 1612; Pub. L. 109–163, div. C, title XXXV, § 3507(a)(1)(D), (b)(6), Jan. 6, 2006, 119 Stat. 3555, 3556; Pub. L. 110–181, div. C, title XXXV, § 3522(a)(6), (10)(B), (b), Jan. 28, 2008, 122 Stat. 598.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 53712(a) ...... 46 App.:1274(k). June 29, 1936, ch. 858, title XI, § 1104A(k), (m), as added Pub. L. 108–136, title XXXV, § 3523, Nov. 24, 2003, 117 Stat. 1800. 53712(b) ...... 46 App.:1274(m). Editorial Notes AMENDMENTS 2008—Pub. L. 110–181, § 3522(b), repealed Pub. L. 109–163, § 3507(a)(1)(D), (b)(6). See 2006 Amendment note below. Pub. L. 110–181, § 3522(a)(6), (10)(B), incorporated the substance of the amendment by Pub. L. 109–163, § 3507(a)(1)(D), (b)(6), into this section by inserting ‘‘or Administrator’’ after ‘‘Secretary’’ wherever appearing and substituting ‘‘If the Secretary or Administrator has waived a requirement under section 53707(d) of this title, the loan agreement shall include requirements for additional payments, collateral, or equity contribu- tions to meet the waived requirement upon the occur- rence of verifiable conditions indicating that the obli- gor’s financial condition enables the obligor to meet the waived requirement.’’ for ‘‘These provisions include requirements for additional collateral or greater equity contributions that are effective upon the occurrence of verifiable conditions relating to the obligor’s financial condition or the status of the vessel or shipyard project.’’ See 2006 Amendment note below and section 18(a) of Pub. L. 109–304, set out as a Legislative Purpose and Construction note preceding section 101 of this title. 2006—Pub. L. 109–163, § 3507(a)(1)(D), (b)(6), which di- rected the amendment of section 1274(k), (m) of the former Appendix to this title from which this section was derived, was repealed by Pub. L. 110–181, § 3522(b). See 2008 Amendment notes and Historical and Revision notes above. § 53713. Administrative fees (a) IN GENERAL.—The Secretary or Adminis- trator shall charge and collect from the obligor fees the Secretary or Administrator considers reasonable for processing the application and monitoring the loan guarantee, including for— (1) investigating an application for a guar- antee; (2) appraising property offered as security for a guarantee; (3) issuing a commitment; (4) providing services related to an escrow fund under section 53715 of this title or a de- posit fund under section 53716 of this title; (5) inspecting property during construction, reconstruction, or reconditioning; and (6) monitoring and providing services related to the obligor’s compliance with any terms re- lated to the obligations, the guarantee, or maintenance of the Secretary or Administra- tor’s security interests under this chapter. (b) TOTAL FEE LIMITATION.—The total fees under subsection (a) may not exceed 0.5 percent of the original principal amount of the obliga- tions to be guaranteed. (c) FEES FOR INDEPENDENT ANALYSIS.— (1) IN GENERAL.—The Secretary or Adminis- trator may charge and collect fees to cover the costs of independent analysis under sec- tion 53703(c) of this title. Notwithstanding sec- tion 3302 of title 31, any fee collected under this subsection shall— (A) be credited as an offsetting collection to the account that finances the administra- tion of the loan guarantee program; (B) be available for expenditure only to pay the costs of activities and services for which the fee is imposed; and (C) remain available until expended. (2) FEE LIMITATION INAPPLICABLE.—Fees col- lected under this subsection are not subject to the limitation of subsection (b). (Pub. L. 109–304, § 8(c), Oct. 6, 2006, 120 Stat. 1612; Pub. L. 109–163, div. C, title XXXV, § 3507(a)(1)(D), Jan. 6, 2006, 119 Stat. 3555; Pub. L. 110–181, div. C, title XXXV, § 3522(a)(10)(B), (b), Jan. 28, 2008, 122 Stat. 598; Pub. L. 116–92, div. C, title XXXV, § 3506(h), Dec. 20, 2019, 133 Stat. 1973.) Page 450 TITLE 46—SHIPPING § 53714 HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 53713(a) ...... 46 App.:1274(f)(1) (words before pro- viso). June 29, 1936, ch. 858, title XI, § 1104A(f)(1), (4) [§ 1104A formerly § 1104], as added June 23, 1938, ch. 600, § 46, 52 Stat. 970; Aug. 4, 1939, ch. 417, § 14, 53 Stat. 1187; Sept. 28, 1950, ch. 1093, § 4, 64 Stat. 1078; Aug. 15, 1953, ch. 513, § 2, 67 Stat. 626; Sept. 3, 1954, ch. 1265, § 4, 68 Stat. 1269; Pub. L. 86–123, §§ 1(3), 2, July 31, 1959, 73 Stat. 269, 271; Pub. L. 86–127, § 1(3), (4), July 31, 1959, 73 Stat. 273; Pub. L. 86–518, § 1, June 12, 1960, 74 Stat. 216; Pub. L. 86–685, §§ 2, 3, Sept. 2, 1960, 74 Stat. 733; Pub. L. 90–341, June 15, 1968, 82 Stat. 180; Pub. L. 91–469, §§ 31, 32, Oct. 21, 1970, 84 Stat. 1035; restated Pub. L. 92–507, § 3, Oct. 19, 1972, 86 Stat. 913; Pub. L. 97–31, § 12(136), Aug. 6, 1981, 95 Stat. 166; § 1104 renumbered as § 1104A, Pub. L. 101–380, title IV, § 4115(f)(1), Aug. 18, 1990, 104 Stat. 521; Pub. L. 107–314, title XXXV, § 3503(2), Dec. 2, 2002, 116 Stat. 2754; Pub. L. 108–136, title XXXV, § 3526(2), Nov. 24, 2003, 117 Stat. 1801. 53713(b) ...... 46 App.:1274(f)(1) (proviso). 53713(c) ...... 46 App.:1274(f)(4). Editorial Notes AMENDMENTS 2019—Subsec. (a). Pub. L. 116–92, § 3506(h)(1)(A), sub- stituted ‘‘reasonable for processing the application and monitoring the loan guarantee, including for—’’ for ‘‘reasonable for—’’ in introductory provisions. Subsec. (a)(4). Pub. L. 116–92, § 3506(h)(1)(B), sub- stituted ‘‘or a deposit fund under section 53716 of this title;’’ for ‘‘; and’’. Subsec. (a)(6). Pub. L. 116–92, § 3506(h)(1)(C), (D), added par. (6). Subsec. (c). Pub. L. 116–92, § 3506(h)(2)(B)–(D), des- ignated existing provisions as par. (1) and inserted heading, redesignated former pars. (1) to (3) as subpars. (A) to (C), respectively, of par. (1) and realigned mar- gins, and added par. (2). Pub. L. 116–92, § 3506(h)(2)(A), which directed amend- ment of par. (1) of subsec. (c) by substituting ‘‘under section 53703(c) of this title’’ for ‘‘under section 53708(d) of this title’’, was executed by making the substitution in introductory provisions of subsec. (c) to reflect the probable intent of Congress and the subsequent des- ignation of the provisions of subsec. (c) as subsec. (c)(1). See above. 2008—Pub. L. 110–181, § 3522(b), repealed Pub. L. 109–163, § 3507(a)(1)(D). See 2006 Amendment note below. Subsecs. (a), (c). Pub. L. 110–181, § 3522(a)(10)(B), incor- porated the substance of the amendment by Pub. L. 109–163, § 3507(a)(1)(D), into this section, by inserting ‘‘or Administrator’’ after ‘‘Secretary’’ wherever appear- ing in introductory provisions. See 2006 Amendment note below and section 18(a) of Pub. L. 109–304, set out as a Legislative Purpose and Construction note pre- ceding section 101 of this title. 2006—Pub. L. 109–163, § 3507(a)(1)(D), which directed the amendment of section 1274(f) of the former Appen- dix to this title from which this section was derived, was repealed by Pub. L. 110–181, § 3522(b). See 2008 Amendment note for subsecs. (a), (c) and Historical and Revision notes above. § 53714. Guarantee fees (a) REGULATIONS.—Subject to this section, the Secretary or Administrator shall prescribe regu- lations to assess a fee for guaranteeing an obli- gation under this chapter. (b) COMPUTATION OF FEE.— (1) IN GENERAL.—The amount of the fee for a guarantee under this chapter shall be equal to the sum of the amounts determined under paragraph (2) for the years in which the guar- antee is in effect. (2) PRESENT VALUE FOR EACH YEAR.—The amount referred to in paragraph (1) for a year in which the guarantee is in effect is the present value of the amount calculated under paragraph (3). To determine the present value, the Secretary or Administrator shall apply a discount rate determined by the Secretary of the Treasury, considering current market yields on outstanding obligations of the United States Government having periods to maturity comparable to the period to matu- rity for the guaranteed obligation. (3) CALCULATION OF AMOUNT.—The amount referred to in paragraph (2) shall be calculated by multiplying— (A) the estimated average unpaid principal amount of the obligation that will be out- standing during the year (excluding the av- erage amount, other than interest, on de- posit during the year in an escrow fund under section 53715 of this title); by (B) the fee rate set under paragraph (4). (4) SETTING FEE RATES.—To set the fee rate referred to in paragraph (3)(B), the Secretary or Administrator shall establish a formula that— (A) takes into account the security pro- vided for the guaranteed obligation; and (B) is a sliding scale based on the credit- worthiness of the obligor, using— (i) the lowest allowable rate under para- graph (5) for the most creditworthy obli- gors; and (ii) the highest allowable rate under paragraph (5) for the least creditworthy obligors. (5) PERMISSIBLE RANGE OF RATES.—The fee rate set under paragraph (4) shall be— (A) for a delivered vessel or equipment, at least 0.5 percent and not more than 1 per- cent; and (B) for a vessel to be constructed, recon- structed, or reconditioned or equipment to be delivered, at least 0.25 percent and not more than 0.5 percent. (c) WHEN FEE COLLECTED.—A fee for the guar- antee of an obligation under this chapter shall be collected not later than the date on which an amount is first paid on the obligation. (d) FINANCING THE FEE.—A fee paid under this section is eligible to be financed under this chapter and shall be included in the actual cost of the obligation guaranteed. (e) NOT REFUNDABLE.—A fee paid under this section is not refundable. However, an obligor shall receive credit for the amount paid for the remaining term of the obligation if the obliga- tion is refinanced and guaranteed under this chapter after the refinancing. (Pub. L. 109–304, § 8(c), Oct. 6, 2006, 120 Stat. 1613; Pub. L. 109–163, div. C, title XXXV,