with whom GOULD, Circuit Judge, joins, concurring:

We concur. We write further, however, because we believe Boulder Fruit was wrongly decided and the Ninth Circuit, sitting en banc, should eliminate this circuit split, speak expressly to this issue, and join the Second, Fourth, and Fifth Circuits by adopting a separate, threshold, transfer-of-risk test.

Congress intended PACA to prevent secured lenders from defeating the rights of PACA-trust beneficiaries. The congressional focus upon the relative rights of these two groups is unmistakable. As such, before assessing the commercial reasonableness of a factoring agreement, it is first necessary to examine the substance of a factoring agreement to ensure a true sale has occurred. In the absence of a true sale, superficial indicators and labels surrounding a factoring agreement should be of no consequence. The substance of the transaction matters. If the substance of a transaction reveals a secured lending arrangement rather than a true sale, the accounts receivable remain trust assets. Thus, unpaid trust beneficiaries hold an interest in accounts receivable and their proceeds superior to all unsecured and secured creditors such that the trust beneficiaries should prevail.

This conclusion enjoys further support in the simple fact that any attempt to assess the commercial reasonableness of a factoring agreement without carefully examining the substance of the rights transferred is an incomplete and abstract exercise. Whether a factoring discount of 10%, 20%, or more is reasonable in any given situation cannot be determined without first assessing what the factoring agent has contracted to do and what risk the factoring agent has accepted. Analyzing a factoring discount by looking exclusively at an initial payment .without considering the availability of recourse and without assessing the nature of the rights and risks actually transferred from the distributor to the factoring agent examines only part of the transaction. Such an exercise is not grounded in reality and is akin to declaring a price to be reasonable without first identifying the product or service that carried that price.

*452 We address below the structure and purpose of PACA, the circuit split regarding the transfer-of-risk test, and the application of that test to this case.

I. The PACA Trust

“Congress enacted PACA in 1930 to prevent unfair business practices and promote financial responsibility in the fresh fruit and produce industry.” Boulder Fruit, 251 F.3d at 1270. Congress amended PACA in 1984 “ ‘to remedy [the] burden on commerce in perishable agricultural commodities and to protect the public interest’ caused by accounts receivable financing arrangements that ‘encumber or give lenders a security interest’ in the perishable agricultural commodities superior to the growers.” Id. (alteration in original) (quoting 7 U.S.C. § 499e(c)(l)). PACA attempts to remedy this burden through the creation of a statutory trust:

7 U.S.C. § 499e(c)(2). “This provision imposes a ‘nonsegregated floating trust’ on the commodities and their derivatives, and permits the commingling of trust assets without defeating the trust.” Endico Potatoes, 67 F.3d at 1067 (citation omitted).

“[G]eneral trust principles [apply] to questions involving the PACA trust, unless those principles directly conflict with PACA.” Boulder Fruit, 251 F.3d at 1271. And, because “[ordinary principles of trust law apply to trusts created under PACA, ... the trust assets are excluded from the estate should the dealer [ie., the PACA trustee] go bankrupt.” Sunkist Growers, Inc. v. Fisher, 104 F.3d 280, 282 (9th Cir. 1997).

Under general trust principles, a breach of trust occurs when there is “a violation by the trustee of any duty which as trustee he owes to the beneficiary.” Boulder Fruit, 251 F.3d at 1271 (quoting Restatement (Second) of Trusts § 201 (1959)). Federal regulations set forth a PACA trustee’s primary duties, requiring the trustee “to maintain trust assets in a manner that such assets are freely available to satisfy outstanding obligations to sellers of perishable agricultural commodities.” Id. (quoting 7 C.F.R. § 46.46 (d)(1)). The duty to maintain trust assets is broad, such that “[a]ny act or omission which is inconsistent with this responsibility, including dissipation of trust assets, is unlawful and in violation of [PACA].” Id. (second alteration in original) (quoting 7 C.F.R. § 46.46 (d)(1)).

Because the non-segregated floating trust under PACA permits the commingling of trust assets and permits the PACA trustee to convert trust assets into proceeds, the transferees of trust assets, such as Agricap here, “are liable only if they had some role in causing [a] breach or dissipation of the trust.” Boulder Fruit, 251 F.3d at 1272; see also Restatement (Second) of Trusts § 283. (1959) (“If the trustee transfers trust property to a third person ... [without] -committing] a breach of trust, the third person holds the interest so transferred or created free of the trust, and is under no liability to the beneficiary.”).

*453 Against this backdrop, the current parties and all circuit courts addressing the issue agree that a PACA trustee’s true sale of accounts receivable for a commercially reasonable discount from the accounts’ face value is not a dissipation of trust assets and, therefore, is not a breach of the PACA trustee’s duties. See Nickey Gregory, 597 F.3d at 598 (“The assets of the trust would thus have been converted into cash and the receivables would no longer have been trust assets. Obviously, under this scenario, [the factoring agent] would own the accounts receivable and would be able to do with them what it wished.”); Reaves Brokerage, 336 F.3d at 413-14; Boulder Fruit, 251 F.3d at 1271-72; Endico Potatoes, 67 F.3d at 1067-68. Such a sale is merely a conversion of trust assets from accounts receivable into cash. These circuits also agree that any purported security interest for a lender in PACA-trust assets is inferior to the trust beneficiaries’ claims and rights. See, e,g., Nickey Gregory, 597 F.3d at 598-99 (“Thus, if the accounts receivable were held ... as collateral to secure repayment of a loan, they would also have been held for the benefit of produce sellers, and the produce sellers would have effectively enjoyed a first-creditor position in them.”); Endico Potatoes, 67 F.3d at 1069 (“Because [the fac toring agent] held only a security interest ... its interest is subject to the rights of the PACA trust beneficiaries.... [The factoring agent] must ... disgorge amounts collected on the accounts after [the distributor’s] bankruptcy filing to the extent necessary to satisfy claims of PACA trust beneficiaries,”). In fact, in Boulder Fruit, notwithstanding the absence of discussion of a “true-sale” or “transfer-of-risk” test, the Ninth Circuit provided an illustration making clear that use of PACA-trust assets as collateral to secure a debt could not create a priority security interest for a lender greater than the position enjoyed by PACA trust beneficiaries:

Boulder Fruit, 251 F.3d at 1271.

II. Transfer-of-Risk Test for Identifying True Sales

The treatment of true sales and security interests, therefore, is clear. What remains unclear is the analysis to apply when the true nature of the transaction is ambiguous. How should a court treat a transaction if the parties to a factoring agreement label the transaction a sale of accounts but provide substantial recourse for the factoring agent, such as requiring the distributor to “repurchase” non-performing accounts or permitting the factoring agent to withhold payments or otherwise recoup payments already made to the distributor? What if, such labels notwithstanding, the recourse and security provided include a security interest in the accounts receivable? Has a true sale actually occurred?

Growers and the Second, Fourth, and Fifth Circuits apply a threshold transfer-of-risk test to determine if such a transaction is a true sale or a mere secured lending relationship. Agricap, relying on Boulder Fruit, argues the court need only *454 ask if the transaction was commercially reasonable.

In Boulder Fruit, the Ninth Circuit held factoring agreements do not per se breach the PACA trust because, consistent with general trust principles, “a trustee can sell trust assets unless the sale breaches the trust.” 251 F.3d at 1272. The court concluded “a commercially reasonable sale of accounts for fair value is entirely consistent with the trustee’s primary duty under PACA and 7 C.F.R. § 46.46 (d)(1) — to maintain trust assets so that they are freely available to satisfy outstanding obligations to sellers of perishable commodities.” Id. at 1271 (internal quotation marks omitted). The court indicated that whether a factoring agreement is commercially reasonable depends upon the terms of the agreement. For example, “[a] PACA trustee who sells accounts for pennies on the dollar, just to turn a quick buck, might well have breached the PACA trust, while a trustee who factors accounts at a commercially reasonable rate would not.” Id.

In reaching its conclusion, the Boulder Fruit panel stated the factoring agreement “actually enhanced the trust” for three reasons. Id. at 1272 . First, it allowed the distributor to quickly convert accounts receivable to cash. 1 Id. Second, in the course of performance, the distributor “actually received ... more for the accounts than the accounts would prove to be worth.” Id. And third, “a factoring discount of 20% was never shown to be commercially unreasonable.” Id. The Ninth Circuit therefore considered not only the up-front payment from factoring agent to distributor but also the actual sums paid to the distributor by the factoring agent during the course of performance of the factoring agreement. 2 The Ninth Circuit did not, however, examine the substance of the rights transferred to determine what the factoring agent agreed to do, what risk the factoring agent accepted when it accepted the right to collect on the transferred accounts, and whether the transaction properly should be deemed a sale rather than a mere secured lending arrangement. Rather, the Ninth Circuit in Boulder Fruit merely characterized the transaction as a sale or factoring agreement without discussing the factoring agent’s rights and ability to seek recourse against the distributor.

In contrast, the Fourth, Fifth, and Second Circuits considered it necessary to examine the rights and risks transferred between the parties to a factoring agreement. See Nickey Gregory, 597 F.3d at 600-03; Reaves Brokerage, 336 F.3d at 414-16; Endico Potatoes, 67 F.3d at 1068-69, As the Fourth Circuit stated, “[I]f the accounts receivable were not sold but rather were given as collateral for a loan, then the accounts receivable would have remained trust assets, subject to [the factoring agent’s] security interest.” Nickey Gregory, 597 F.3d at 598 (emphasis in original). Whether the accounts receivable remained accounts or were converted into *455 cash, however, the factoring agent’s “position with respect to that cash would have been subordinate to the claims of produce sellers while they remained unpaid.” Id. In contrast, *‘[i]f [the distributor] had transferred these trust assets ... by means of a sale in exchange for cash, the transaction would have been nothing more than a permissible conversion of trust assets from one form to another — i.e., from accounts receivable into cash.” Id. at 599. If such a true sale had occurred, “the accounts receivable would no longer have remained trust assets, and the commodities sellers would not have had any claim for payment from them.” Id. at 599-600.

Nickey Gregory, 597 F.3d at 594, and Reaves Brokerage, 336 F.3d at 412, involved factual patterns similar to the present case. Endieo Potatoes involved a similar question: whether a “purchaser” of accounts was a bona fide purchaser for true value or merely a lender. 67 F.3d at 1065-66. In these cases, the courts examined the text and legislative history of PACA, as well as the regulations promulgated under PACA, to conclude Congress intended to elevate the interests of produce growers above the interests of secured lenders. See, e.g., Nickey Gregory, 597 F.3d at 594-95, 598-99; Endieo Potatoes, 67 F.3d at 1066-68. The. Fourth Circuit noted in particular that representatives of the secured lending community had expressed concern over PACA’s likely effect upon secured lenders and the factoring industry. Nickey Gregory, 597 F.3d at 599. The court concluded that Congress nevertheless found the balance of policy interests to favor placing those lenders in a position subordinate to unpaid growers. Id.

For example, the House Report explaining the 1984 PACA amendments states:

H.R. Rep. No. 98-543, at 3 (1984), as reprinted in 1984 U.S.C.C.A.N. 405, 407. The Second Circuit, citing this report, explained:

Endico Potatoes, 67 F.3d at 1067. Given this focus, it becomes evident that this circuit’s focus, too, should be upon the true nature of the transactions at issue and the true nature of the parties’ roles, i.e., that of seller and buyer or that of secured lender and borrower.

Importantly, Congress not only knew it was elevating the interests of growers above the interests of secured lenders, Congress expressly found the secured lenders’ practices had been resulting in a “burden on commerce,” H.R. Rep. No. 98-543, at 4, and further found the creation of statutory trust would aid commerce. As recognized in Nickey Gregory, the American Bankers Association had testified to Congress that creation of the PACA trust *456 would create “difficulties for] lenders ... in administering their secured loans.” 597 F.3d at 599. Congress nevertheless “made th[e] policy choice to make the unsecured credit extended by commodities sellers superior to the position of lenders holding a security interest in those commodities and proceeds.” Id. The House Report stated:

H.R. Rep. No. 98-543, at 4.

Given the remedy Congress created to address the perceived problem (creation of the trust elevating commodities sellers’ interests over lenders’ interests), given Congress’s clear concern with the relative interests of secured lenders and commodities sellers, and given the general backdrop of trust law (in particular, a trustee’s ability to sell or convert trust assets), courts must focus on the true substance of PACA-relat-ed transactions and not on superficial indicators or labels. Simply put, it runs counter to PACA and its history to permit the simple use of the words “sale” or “purchase” or “factoring agreement” to control for purposes of assessing the relative rights of lenders and produce growers.

III.. Transfer of Primary or Direct Risk as the Hallmark of a True Sale

The Second, Fourth, and Fifth Circuits conclude a transfer of the primary or direct risk of non-payment on the accounts stands as the hallmark of a true sale. Nickey Gregory, 597 F.3d at 601-03; Reaves Brokerage, 336 F.3d at 417; Endico Potatoes, 67 F.3d at 1068-69. In addition, these courts (as well as the regulations under PACA) focus upon trust asset encumbrance and dissipation in relation to what the terms of a factoring agreement could permit rather than how the parties actually performed under a factoring agreement. See, e.g., 7 C.F.R. § 46.46 (a)(2) (“ ‘Dissipation’ means any act or failure to act which could result in the diversion of trust assets or which could prejudice or impair the ability of unpaid suppliers, sellers, or agents to recover money owed in connection with produce transactions.” (emphasis added)). This focus is important because, although a factoring agent might pay to a distributor/PACA trustee sums adequate for the trustee to pay the beneficiaries, and although those amounts might represent a commercially reasonable discount from the accounts’ face values, the payment of such amounts should be immaterial if (1) the trustee does not pay the beneficiaries in full; and (2) the accounts receivable and their proceeds remain trust assets.

In assessing whether a true sale occurred, the Fourth Circuit adopted the transfer-of-risk test as set forth and explained by the Second Circuit in Endico Potatoes. Nickey Gregory, 597 F.3d at 600-03. There, the Second Circuit distinguished between direct risk, on the one hand, and secondary or derivative risk, on the other. Endico Potatoes, 67 F.3d at 1068-69. The Second Circuit stated it was appropriate to examine several factors such as “[1] the right of the creditor to recover from the debtor any deficiency if the assets assigned are not sufficient to satisfy the debt, [2] the effect on the eredi *457 tor’s right to the assets assigned if the debtor were to pay the debt from independent funds, [3] whether the debtor has a right to any funds recovered from the sale of assets above that necessary to satisfy the debt, and [4] whether the assignment itself reduces the debt.” Endico Potatoes, 67 F.3d at 1068. The court concluded, “The root of all of these factors is the transfer of risk.” Id. at 1069. Finally, the court summarized:

Id,

We conclude this transfer-of-risk test must apply to avoid reliance on self-serving labels inserted into factoring agreements to defeat clear congressional intent. We also conclude it follows quite naturally that it is not even possible to assess the commercial reasonableness of a factoring agreement without first understanding the true nature of the transferred risks and transferred rights. A factoring agent who accepts risk of non-payment on the transferred accounts is the owner of the accounts, for better or worse. See Nickey Gregory, 597 F.3d at 601 (“The purchaser assumes the risk of collection, betting that its success in collecting on the accounts receivable will yield a return exceeding the discounted price it paid for the asset.”); id. at 598 (“Obviously, under this scenario, [the factoring agent] would own the accounts receivable and would be able to do with them what it wished.”). That risk will be reflected in the price. A factoring agent who functionally serves only as a lender and collection firm, however, accepts accounts for collection but enjoys the right to force the distributor to repurchase nonperforming accounts. Such a factoring agent faces much less risk — risk measured only by the limitations on the repurchase provisions and by the distributor’s solvency and ability to perform under the agreement. Common sense dictates that the price paid for the accounts with and without recourse will differ. Common sense also dictates that commercial reasonableness cannot be assessed without first examining the substance of the transaction.

Agricap nevertheless argues adoption of the transfer-of-risk test would lead to absurd results in which a factoring agent remains liable to growers even though the factoring agent’s payments to a distributor were sufficient, in theory, for the distributor to pay growers. Agricap overstates its case in characterizing such a scenario as absurd. It is merely the result of a clear policy choice set forth by Congress. In fact, such a result is not even uncommon.

To see an everyday example where a similar scenario plays out, it is only necessary to look to the relationship between general contractors, subcontractors, and property owners in the context of mechanics’ liens. It is well established beyond the need for citations that a property owner who makes final payment to a general contractor without first securing a release of subcontractors’ mechanics’ liens holds the property subject to those liens and faces direct exposure to the subcontractors’ claims. This is true regardless of whether the amount the property owner paid to the general contractor was suffi- *458 eient to pay the subcontractors. If the subcontractors are not paid, their interests prevail over the property owner (who may seek recourse against the general contractor, but who still faces direct liability to the subcontractors). State legislatures made the policy choice to put the interests of subcontractors ahead of those of property owners. Property owners, of course, may guard against this risk by performing due diligence and ensuring subcontractors’ liens are released before making final payment to a general contractor.

Similarly, by putting the burden of due diligence on lenders rather than growers, Congress was well aware of the effect it was imposing on the lending industry. Congress concluded, however, that lenders could adapt. The House Committee expressly noted that anticipated improvements to commerce would offset the lenders’ anticipated burdens. H.R. Rep. No. 98-543, at 4 (“[T]he statutory trust requirements ... will be known to and considered by prospective lenders in extending credit. The assurance the trust provision gives that raw products will be paid for promptly and that there is a monitoring system provided for under [PACA] will protect the interests of the borrower, the money lender, and the fruit and vegetable industry.”).

The propriety of comparing the PACA situation to mechanics’ liens is shown by examining the longstanding regulations promulgated under PACA. These regulations do not ask whether a factoring arrangement in fact resulted in a transfer of funds sufficient to pay growers throughout the course of performance under a factoring agreement. Rather, the regulations ask whether such an arrangement “could” impair trust assets. 7 C.F.R. § 46.46 (a)(2). Just as a property owner must conduct due diligence to avoid liability to a subcontractor before making final payment to a general, a factoring agent with knowledge of PACA must act with diligence. It does not matter that a factoring agent paid a distributor sufficient funds to pay growers any more than it matters that a property owner paid a general contractor sufficient funds to pay subcontractors. In light of these protections, it cannot be the case that a distributor and factoring agent may defeat trust beneficiaries’ rights merely by invoking the labels “sale” or “factoring agreement.”

IV. Transfer of Risk in the Factoring Agreement and in Boulder Fruit

Turning to the actual factoring agreements in the present case and in Boulder Fruit, it is helpful to describe the relationship between Tanimura and Agricap and how the parties came to enter into the Factoring Agreement.

In late 2007, Tanimura found itself facing cash flow difficulties and reached out to Agricap in an effort to “improve [Tani-mura’s] working capital situation and [Tanimura’s] ability to pay vendors.” In December 2007, Tanimura completed an application for a “factoring line” from Agricap. In response, Agricap asked for a fee to conduct due diligence and referenced the possibility of “entering into certain arrangements to provide a factoring facility.” In a “term sheet” attached to this response, Agricap referred to itself as the “lender,” referred to Tanimura as the “seller,” and referred to the “factoring facility” as a “credit facility.” It also stated Agricap would provide to Tanimura “collection services.” From inception, then, it seems clear Agricap viewed itself as a lender providing collection services to Tan-imura rather than a true purchaser- of accounts collecting for itself on the accounts it would truly own. Nevertheless, Agricap also indicated “Seller would sell to Agricap, and Agricap would purchase from Seller, all of Seller’s accounts receivable.” *459 Agricap then investigated Tanimura’s finances and completed a “Client Credit Approval Form” dated January 8, 2008.

On February 4, 2008, Tanimura and Agricap entered into the “Agricap Financial Corporation Factoring and Security Agreement.” The Factoring Agreement provided that Agricap would “purchase” Tanimura’s accounts receivable for 80% of the face value and would hold the remaining 20% in a reserve account. Agricap would then collect on the accounts from Tanimura’s customers, pay itself a financing fee as a percentage of the face value of the accounts, and also pay itself an interest fee based upon the length of time the accounts had remained outstanding. After retaining its fees and maintaining a reserve account, Agricap would pay to Tani-mura the balance of the collected amounts.

The Factoring Agreement, however, transferred to Agricap very little in the way of primary or direct risk of nonpayment. The Factoring Agreement granted Agricap the unilateral ability to increase the reserve account (ie., withhold payments to Tanimura of funds collected from accounts) by “such additional reserves as are deemed necessary and appropriate in [Agricap’s] sole discretion.” It also granted Agricap the ability to force Tanimura to purchase back certain accounts based upon the occurrence of certain events. For example, if a dispute arose between Tanimu-ra and a customer, Agricap could force Tanimura to repurchase the customer’s account.

Importantly, Tanimura agreed to repurchase any accounts that remained uncollected after 90 days. And, in the event of Tanimura’s insolvency, the repurchase amount could be deducted from the reserve account. Agricap’s only practical risk, therefore, was possible insolvency by Tanimura at a time when the reserve account was insufficient to fund the unpaid accounts. In other words, assuming Tani-mura’s continued solvency, Agricap could obtain full recourse against Tanimura for 90-day-old unpaid accounts, and Agricap’s risk of non-payment by Tanimura’s customers was cabined to 90-day windows (during which Agricap received a financing fee and interest).

The parties also executed ancillary documents when entering into the Factoring Agreement. Tanimura’s principal executed a personal guarantee. Agricap took a priority interest in all of Tanimura’s assets other than inventory, filing a UGC financing statement to this effect. Also, Tanimu-ra itself and Tanimura’s other primary lender agreed to subordinate their debt to Agricap.

The parties disagree as to the actual amounts of money that changed hands between Tanimura and Agricap, but it appears undisputed that the transferred accounts exceeded $20 million and Agricap ultimately paid to Tanimura an amount in excess of 90% of the face value of those accounts.

The factoring agreement at issue in Boulder Fruit was substantially similar to the Factoring Agreement in the present case. The factoring agent in Boulder Fruit, however, was not subject to the same express limitations on the timing or reasons for forcing the PACA trustee to repurchase accounts. Rather, the factoring agreement in Boulder Fruit permitted the factoring agent to force the PACA trustee to repurchase any account the factoring agent determined, “in its sole and absolute discretion ... is or may not be fully collectible.”

Reviewing these provisions, we conclude that neither the present Factoring Agreement nor the agreement in Boulder Fruit transferred primary or direct risk of nonpayment to the factoring agents. In the *460 absence of controlling precedent, therefore, we would hold neither agreement effected a true sale of trust assets. Rather, both were mere secured financing arrangements, as further indicated by Agrieap’s descriptions of itself as “lender” and the Factoring Agreement as a “credit facility.”

In summary, Congress created a system to protect growers of fruits, vegetables, and other perishable commodities. The growers in this Circuit have effectively lost that protection due to lenders merely labeling true security agreements as factoring agreements. This is not an isolated issue in a cottage industry. Perishable agricultural commodities are a multi-billion dollar enterprise in this Circuit as well as nationwide. We would encourage an en banc court to consider bringing the Ninth Circuit into line with the other circuits that have considered this issue.

. Further, because the price of such commodities tend to rise as the commodities move through the distribution chain from grower to final customer, sales of an intermediate distributor’s accounts receivable, even at a commercially reasonable discount to face value, reasonably might be expected to result in adequate funds for the PACA trustee to pay the produce growers.

. The 20% discount at issue in Boulder Fruit as referenced above represented a discount from the accounts' face value as paid in an initial payment from the factoring agent to the PACA trustee. It did not represent the final amount paid nor did it represent a floor or a ceiling on what the factoring agreement in Boulder Fruit could have caused the factoring agent ultimately to pay. The detailed terms of the factoring agreement in Boulder Fruit are addressed below.