FR Doc E8-28632[Federal Register: December 2, 2008 (Volume 73, Number 232)]
[Notices]
[Page 73263-73311]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02de08-50]
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DEPARTMENT OF EDUCATION
DEPARTMENT OF THE TREASURY
OFFICE OF MANAGEMENT AND BUDGET
Federal Family Education Loan Program (FFELP)
AGENCY: Department of Education, Department of the Treasury, Office of
Management and Budget.
ACTION: Notice of terms and conditions of additional purchase of loans
under the Ensuring Continued Access to Student Loans Act of 2008.
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SUMMARY: Under the authority of section 459A of the Higher Education
Act of 1965, as amended (``HEA''), as enacted by the Ensuring Continued
Access to Student Loans Act of 2008 (Pub. L. 110-227) and amended by
Pub. L. 110-315 and Pub. L. 110-350, the Department of Education
(``Department'') may purchase, or enter into forward commitments to
purchase, Federal Family Education Loan Program (``FFELP'') loans made
under sections 428 (subsidized Stafford loans), 428B (PLUS loans), or
428H (unsubsidized Stafford loans) of the HEA, on such terms as the
Secretary of Education (``Secretary''), the Secretary of the Treasury,
and the Director of the Office of Management and Budget (collectively,
``Secretaries and Director'') jointly determine are ``in the best
interest of the United States'' and ``shall not result in any net cost
to the Federal Government (including the cost of servicing the loans
purchased).''
The Secretary initially exercised this authority in accordance with
a notice published in the Federal Register on July 1, 2008 (73 FR
37422). This notice (a) establishes the terms and conditions that will
govern certain additional loan purchases made under section 459A of the
HEA, as extended by Pub. L. 110-350 (Short-term Purchase Program), (b)
outlines the methodology and factors that have been considered in
evaluating the price at which the Department will purchase these
additional FFELP loans, and (c) describes how the use of those factors
and methodology will ensure that the additional loan purchases do not
result in any net cost to the Federal Government. The Secretaries and
Director concur in the publication of this notice and have jointly
determined that the purchase of additional loans as described in this
notice is in the best interest of the United States and shall not
result in any net cost to the Federal Government (including the cost of
servicing the loans purchased).
DATES: Effective Date: The terms and conditions governing the purchase
of additional loans under the Short-term Purchase Program are effective
December 1, 2008.
FOR FURTHER INFORMATION CONTACT: U.S. Department of Education, Office
of Federal Student Aid, Union Center Plaza, 830 First Street, NE., room
111G3, Washington, DC 20202. Telephone: (202) 377-4401 or by e-mail:
ffel.agreementprocess@ed.gov.
If you use a telecommunications device for the deaf (TDD), call the
Federal Relay Service (FRS), toll free, at 1-800-877-8339.
Individuals with disabilities can obtain this document in an
accessible format (e.g., braille, large print, audiotape, or computer
diskette) on request to the contact person listed under FOR FURTHER
INFORMATION CONTACT.
SUPPLEMENTARY INFORMATION:
Introduction
The Department's purchase of FFELP loans is intended to ensure that
students and parents continue to have access to FFELP Stafford and PLUS
loans for the remainder of the 2008-2009 academic year and the 2009-
2010 academic year, including second and subsequent disbursements of
loans which have already had a first disbursement. The Department
initially offered lenders the opportunity to participate in a Loan
Participation Purchase Program (``Participation Program'') and a Loan
Purchase Commitment Program (``Purchase Program'') (collectively,
``Programs''). Pursuant to section 459A
[[Page 73264]]
of the HEA, the Secretaries and Director established the terms and
conditions that govern the Participation Program and the Purchase
Program in a notice published in the Federal Register on July 1, 2008
(73 FR 37422). Minor revisions to this notice were published in the
Federal Register on July 17, 2008 (73 FR 41048).
Under the Participation Program, the Department has purchased
participation interests in eligible loans that are held by an eligible
lender acting as a sponsor under a Master Participation Agreement. To
participate in the Participation Program, each sponsor entered into a
Master Participation Agreement with the Department and a third-party
custodian.
Under the Purchase Program, the Department has purchased eligible
loans that are held by eligible lenders. To participate in the Purchase
Program, each eligible lender entered into a Master Loan Sale Agreement
with the Department and agreed to deliver to the Department or its
agent the fully executed master promissory note (or all electronic
records evidencing the same) evidencing each eligible loan that the
lender wished to sell to the Department and any and all other documents
and computerized records relating to all such loans.
Subsequent to the announcements of the Purchase Program and
Participation Program in July, the Secretaries of Education and
Treasury have concluded that additional actions are necessary to ensure
students and parents have access to FFELP for the remainder of the
2008-2009 academic year. Specifically, the Secretaries believe some
lenders may not be able to obtain capital to make second disbursements
even for the short-term necessary before lenders can utilize the
existing programs. Through the Short-term Purchase Program, the
Department is extending the offer to purchase loans to include eligible
loans made for the 2007-2008 academic year under the terms and
conditions established in this notice, including the appended Master
Loan Sale Agreement-2007-2008, dated November 24, 2008. The Department
plans to purchase these loans on or about December 1, 2008 and will
continue purchasing them through February 28, 2009 or the date on which
one or more conforming Asset-Backed Commercial Paper (ABCP) conduit(s)
for purchasing FFELP loans becomes operational, whichever occurs
earlier. The Department will expend up to $500 million to purchase
eligible loans each week during this period, for a potential total
aggregate amount of up to $6.5 billion. The Department will only accept
offers from lender requests for the Department to purchase loans under
the Short-term Purchase Program once each week. Details of how a lender
must submit such offers will be provided by the Department by postings
to its official Web site at http://www.federalstudentaid.ed.gov/ffelp.
The Department will purchase no loans from a lender in a given week
unless the average outstanding principal balance of the loans offered
by the lender for that week is at least $3,000. The Department will
calculate the total amount of the outstanding principal balance of the
loans offered for sale for the week by lenders that submit offers that
meet the $3,000 minimum balance requirement, and will purchase all such
loans if the amount needed to purchase them does not exceed the $500
million offered amount.
If the amount needed to purchase all loans in qualifying offers in
a given week exceeds $500 million, the Department will initially
designate for purchase from each lender an amount that is the lesser of
its outstanding balance of loans offered for sale or the total
outstanding balance of the loans offered by such lender multiplied by a
percentage that is the ratio of that lender's 2007-2008 loan volume to
the 2007-2008 loan volume of all lenders that submitted qualifying
offers to sell loans in the same week. If this process fails to spend
the entire $500 million in a given week, the Department will determine
the percentage that the amount of loans offered by each lender that was
not initially designated for purchase bears to the total amount offered
but not so designated from all lenders for that week, and it will
multiply the remainder of the $500 million by this percentage to
designate for purchase an additional amount of loans from each lender.
The Department will purchase from each lender an amount that is the sum
of its initial plus additional designated amounts. In no case will the
Department purchase an amount that exceeds a lender's offered amount.
Moreover, no lender shall receive more than 85 percent of the weekly
offering until all lenders wishing to sell loans to the Department have
been satisfied.
Terms and Conditions
Under the Short-term Purchase Program, the Department will purchase
fully disbursed FFELP loans (subsidized Stafford loans, unsubsidized
Stafford loans, and PLUS loans) originated for academic year 2007-2008.
FFELP Consolidation loans are not eligible for purchase by the
Department under this program. To participate in the Short-term
Purchase Program, each eligible lender must enter into a separate
Master Loan Sale Agreement--2007-2008, dated November 24, 2008
(attached as Appendix A to this notice) with the Department and deliver
to the Department or its agent the fully executed master promissory
note (or all electronic records evidencing the same) evidencing each
eligible loan that the lender wishes to sell to the Department and any
and all other documents and computerized records relating to that
eligible loan.
For the purpose of the Short-term Purchase Program, an otherwise
eligible FFELP loan must have been first disbursed on or after May 1,
2007 for a loan period that includes July 1, 2007 or begins on or after
that date. At the time of purchase by the Department, the loan must be
free and clear of any encumbrance, lien or security interest or any
other prior commitment. At the time of purchase by the Department, the
loan cannot be in a default status, be 210 or more days delinquent, or
have had a lender claim filed for it. In addition, if the lender wishes
to sell a loan from a particular borrower, all loans from that
particular borrower must be offered for sale.
Under the Short-term Purchase Program, the Department will purchase
loans with borrower benefits; however, the benefits are limited to
those that can be implemented by the Department's servicer for these
loans. The Department will accept loans that provide Eligible Borrower
benefits as summarized in Exhibit F to the Master Loan Sale Agreement--
2007-2008, dated November 24, 2008, attached as Appendix A to this
notice. A listing of those specific borrower benefits will be posted to
the Department's Web site at http://www.federalstudentaid.ed.gov/ffelp.
The Department will not purchase loans if a cash rebate was promised to
the borrower.
The Department will purchase loans for 97 percent of the total of
the outstanding principal balance plus accrued but unpaid interest as
of the purchase date. In order to ensure that the loans offered for
sale represent a fair share of the loans in a lender's 2007-2008
portfolio, the average outstanding balance of all of the loans included
in a lender's weekly offer must be at least $3,000. Upon purchase, the
loans become Federal assets and will be serviced by the Department's
contracted servicer as FFELP loans. Any lender that wishes to
participate in the Short-term Purchase Program will be required to
commit to originate or acquire loans, and continue participation in the
FFEL program, as set forth in the Master Loan Sale Agreement (Appendix
A).
[[Page 73265]]
Additional terms and conditions for the Short-term Purchase Program are
contained in the Master Loan Sale Agreement--2007-2008, dated November
24, 2008 (Appendix A).
Outline of Methodology and Factors in Determining Prices
In accordance with Pub. L. No. 110-227, Pub. L. 110-315, and Pub.
L. 110-350, the goal in structuring the Short-term Purchase Program is
to maximize student loan availability while ensuring loan purchases
result in no net cost to the Federal Government. More specifically,
this Short-term Purchase Program will offer temporary liquidity to
FFELP lenders to encourage their continued participation in the program
and ensure that students and parents have access to FFELP Stafford and
PLUS loans for the 2008-2009 and 2009-2010 academic years, including
second and subsequent disbursements of loans which have already had a
first disbursement. This section of the notice responds in particular
to the statutory requirement for an outline of the methodology and
factors considered in evaluating the price at which loans may be
purchased, and describes how the use of such methodology and
consideration of such factors will ensure no net cost to the Federal
Government results from the loan purchases under the Short-term
Purchase Program.
Price: As noted elsewhere in this notice, the Short-term Purchase
Program is intended as a temporary, transitional measure to help
lenders address immediate liquidity shortages until one or more
conforming Asset-Backed Commercial Paper (ABCP) conduits for purchasing
FFELP loans become operational.
To determine the price FFELP loans would be purchased at, the
Secretary of Education and the Secretary of Treasury took into account
several factors. These factors included the price that would ensure
this program resulted in no net cost to the Federal Government; the
increased liquidity that the rate would offer distressed lenders;
borrower benefits; and other factors. Based on this analysis, the
Secretaries determined that 97 percent of outstanding principal and
accrued interest was an appropriate price for this program.
Borrower Benefits: The Department will purchase loans with certain
borrower benefits; however, the Department will only purchase loans
with benefits that can be implemented by Federal Student Aid's current
servicing processes. Further, the 97 percent price considers borrower
benefits for both administrative expediency, cost neutrality, and to
ensure that student's or parent's expected borrower benefits on
purchased loans are not compromised.
Analysis of Cost Neutrality
The cost-neutrality analysis used credit subsidy cost estimation
procedures established under the Federal Credit Reform Act of 1990
(Pub. L. No. 101-508) and OMB Circular A-11. These procedures entail
performing various analyses to project cash flows to and from the
Government, excluding administrative costs. For changes to outstanding
FFEL guaranteed loans, the analysis reflects the modification cost, or
the difference between the estimate of the net present value of the
remaining cash flows underlying the most recent President's Budget for
such loan guarantees, and the estimate of the net present value of
these cash flows after the purchase program, reflecting only the
effects of the modification. For new loans, cash flows are discounted
to the point of disbursement, using the Credit Subsidy Calculator 2
(``OMB calculator''), developed by the Office of Management and Budget
to estimate credit subsidy costs for all Federal credit programs, as
the discounting tool.\1\ Costs for new loans can be expressed as
subsidy rates that reflect the Federal costs associated with a loan;
these costs are expressed as a percentage of the credit extended by the
loan. For example, a subsidy rate of 10.0 percent indicates a Federal
cost of $10 on a $100 loan.
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\1\ The OMB calculator takes projected future cash flows from
the Department's student loan cost estimation model and produces
discounted subsidy rates reflecting the net present value of all
future Federal costs associated with loans made in a given fiscal
year. Values are calculated using a ``basket of zeros'' methodology
under which each cash flow is discounted using the interest rate of
a zero-coupon Treasury bond with the same maturity as that cash
flow. To ensure comparability across various Federal credit
programs, this methodology is incorporated into the calculator and
used government-wide to develop estimates of the Federal costs of
credit programs.
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The metric to determine cost neutrality was that costs under the
new program should not exceed costs expected under the FFEL program had
the loan purchase authority in Pub. L. No. 110-227 not been extended in
this manner. All costs were based on estimates in the 2009 President's
Budget for the FFEL program, and estimated administrative costs.
Student loan cost estimates were developed to assess the Federal
cost incurred for loans financed for students in five categories for
each loan type: Those attending proprietary schools, two-year schools,
freshmen/sophomores at four-year schools, juniors/seniors at four-year
schools, and students in graduate programs. Risk categories have
separate assumptions based on historical patterns--for example, the
likelihood of default or the likelihood of exercising statutory
deferments or discharge benefits--of borrowers in each category. The
analysis also considered risk factors particular to the Short-term
Purchase Program, such as the likelihood that lenders would sell only
their least profitable loans.
This discussion outlines the analysis of the Short-term Purchase
Program with respect to the following critical aspects affecting the
Federal cost:
[cir] Administrative costs
[cir] Borrower behavior
[cir] Lender behavior
[cir] Risk factors
Administrative Costs. Federal administrative costs are normally not
included in subsidy cost calculations. To capture the full cost of the
Short-term Purchase Program, however, section 459A of the HEA requires
that the determination of cost neutrality reflect total costs,
including Federal administrative costs subject to annual appropriation,
and these costs were included in this analysis. Administrative cash
flows primarily involve servicing costs associated with loans purchased
by the Department. These costs can extend for up to 40 years, as
servicing must continue until the last loan is paid in full. Under the
base scenario where $6.5 billion in small loans were purchased,
servicing costs would be $261 million on a present value basis.
Estimates were developed using the price structure of the Department's
servicing contract for put loans, with adjustments for start-up costs,
inflation, and other costs.
Borrower Behavior. Since the base FFEL program serves as the
foundation of the Short-term Purchase Program, and the characteristics
of the base program are unchanged, there is no reason to believe that
the Short-term Purchase Program will affect borrower behavior. Thus,
this cost analysis uses borrower behavior assumptions used to prepare
the FY 2009 President's Budget to gauge the effect on program costs of
borrower-based activities such as loan repayment, use of statutory
benefits such as deferments and loan discharges, and default rates and
timing. These assumptions are based on a wide range of data sources,
including the National Student Loan Data System, the Department's
operational and financial systems, and a group of surveys conducted by
the National Center for Education Statistics such as the 2004 National
Postsecondary Student Aid Survey, the 1994 National Education
[[Page 73266]]
Longitudinal Study, and the 1996 Beginning Postsecondary Student
Survey.
Lender Behavior. A key factor in assessing whether the Short-term
Purchase Program would operate in a cost-neutral manner was lender
behavior: Specifically, how lenders would participate in the program,
including how many and what type of loans would they eventually choose
to sell to the Department. The Department considered alternative
scenarios of lender behavior to determine whether the Short-term
Purchase Program could be considered cost-neutral under each. Because
the Short-term Purchase Program would allow lenders to sell loans with
contingent borrower benefits--such as interest rate reductions for a
specified number of on-time payments--all alternatives include an
adjustment to reflect the impact of these potential reductions on
future loan repayments. Consistent with stress tests applied by rating
agencies in the private securitization market, this adjustment reduces
the net cash flow to the Government by reducing the principal of sold
loans by 0.5 percent a year.
In both scenarios, the Department assumed a ``worst-case'' in which
lenders sold $6.5 billion of their smallest, least profitable loans.
Because long-term loan servicing costs are generally charged on an
account basis independent of loan size, small loans tend to be less
profitable than larger loans. Under this scenario, it was determined
that costs for the Short-term Purchase Program were less expensive to
the Government than baseline subsidy costs for FFELP loans. (Please see
Table 1 for a summary of the analysis.)
[GRAPHIC] [TIFF OMITTED] TN02DE08.124
Risk Factors. Analyzing whether the Short-term Purchase Program
would operate in a cost-neutral manner requires that projected costs
account for the presence of various risk factors that must be assumed
since the Short-term Purchase Program will not operate entirely like
the base FFELP, or without operational risk. As such, the Secretaries'
and Director's estimates included adjustments for four risk factors:
That some of the loans purchased by the Department would be those where
the Department would otherwise reject a reinsurance claim
[[Page 73267]]
under the FFELP (``claim rejects''); that unforeseen problems undermine
the Department's ability to effectively oversee and administer the
Short-term Purchase Program (``operational risk''); that costs related
to servicing purchased loans do not fully reflect possible future
requirements (``general administrative risk''); and, that the
composition of loans ultimately sold to the Department may result in
higher Federal costs than the composition assumed in this analysis
(``portfolio composition risk'').
To ensure cost estimates reflect a conservative assessment of
possible Federal costs, the Secretaries and Director added cost
adjustments to incorporate each risk factor. The adjustments were based
on an assessment of private-sector behavior and program data as
follows:
Claim Rejects. This risk factor takes into account the costs
associated with the purchase of loans that would not typically qualify
for the federal default guarantee in the FFELP due to improper
origination or servicing. The 12 basis point increase in cost is based
on a historical rejected claim rate of 1 percent of volume, and assumes
that these loans would have higher loss rates than the average
portfolio. This cost assessment is double that which was assessed in
the analysis of the original Purchase Program. This doubling is
appropriate given that the 45-day period allotted to the Department,
under the Terms and Conditions of the original Purchase Program, to
conduct due diligence on loans to be purchased is much shorter under
the Short-term Purchase Program. This increased cost assessment is
intended to take this into account.
Operational Risk. In the Short-term Purchase Program, operational
risk might result from servicing errors, technology failures, and the
risk of fraud. While the Department has made every effort to mitigate
operational risk, the emergency nature and accelerated implementation
timeframe for the Short-term Purchase Program make operational risk
more of a concern than in established Department programs.
For the low risk scenario, the analysis assumes a 20 basis point
increase in program cost to reflect this risk. The analysis of the
original Purchase Program only included a 10 basis point assessment.
However, given the accelerated implementation timeframe, as compared to
the original Purchase Program, the doubling of this assessment is
appropriate in this case.
For the high risk scenario, the analysis assumes an additional 60
basis point increase for operational risk, for a total of 80 basis
points, consistent with the assessment in the high risk scenario of the
original Purchase Program. In this scenario, the worst-case was
estimated using survey data from bank regulators implementing an
overhaul of bank regulations. The largest United States banking
organizations will be subject to a new system of capital requirements
that includes an explicit charge for operational risk. Under those
regulations, banks will be required to develop models generating a
probability distribution of losses for operational risk, and hold
capital equal to the 99.9th percentile of that estimated probability
distribution. Banks were surveyed to measure the anticipated impact of
the regulations. Using the best available models of operational risk,
the banks reported that operational risk would account for roughly 10
percent of their required capital. As banks currently finance on
average about eight percent of their assets with capital, worst-case
scenario operational risk losses can thus be estimated at about one
percent of total assets. Also, while we do not believe that this
program has, or necessarily will, face such a level of operational
risk, we developed the high scenario to ensure that the program is
cost-neutral, even under extreme and unlikely circumstances.
General Administrative Risk. The analysis of cost neutrality
examined the Department's current loan servicing contract, and
assumptions of borrower status over the life of the loan after purchase
by the Department. The analysis assumed minimal start-up costs as the
Short-term Purchase Program builds on the current loan purchase program
infrastructure. In December 2008, the Department plans to extend its
current loan servicing contract for one year. This will involve the
renegotiation of payment rates for certain activities which may affect
long-term servicing costs for the loans purchased under the Short-term
Purchase Program. Given the future uncertainty surrounding several
factors, including the assumptions outlined above and the status of
loans ultimately purchased by the Department, it is possible that
unforeseen additional costs may be incurred. Accordingly, a General
Administrative Risk Factor of 100 basis points was added to the
analysis.
Portfolio Composition Risk. The cost to the Government of the
Short-term Purchase Program depends on numerous factors, including loan
size, default/prepayment risk, borrower benefits, and other
characteristics of the purchased loans. The cost-neutrality analysis
accounts for some of these factors, as outlined in this notice, but may
not incorporate all of the dimensions of lender behavior and the loans
ultimately purchased by the Department. Given this uncertainty, savings
may deviate to some degree from the savings estimated in the model. To
ensure that the potential risk and the potential costs are adequately
reflected, a Portfolio Composition Risk Factor of 100 basis points was
added to the analysis. The Department considered a base scenario under
which lenders sold $6.5 billion in loans, the maximum amount allowable
under the Short-term Purchase Program. This scenario also assumed
lenders would sell their smallest, least profitable loans to the
Department and included cost assessments for claim rejects and
operational risk. This scenario would result in an average loan balance
of approximately $3,000. Under this scenario, the Short-term Purchase
Program is cost-neutral.
The Department also considered a high operational risk scenario in
which the cost assessment for operation risk was raised from 20 basis
points to 80 basis points. Even with this increased assessment, the
Short-term Purchase Program remains cost-neutral. The Terms and
Conditions for the Short-term Purchase Program seek to reduce the
likelihood of lenders exclusively selling low-balance loans. For
example, a floor would be established under which batches of loans sold
to the Department must have a minimum average balance of $3,000. This
would likely ensure that the base scenario considered by the Department
would reasonably reflect the cost exposure to the Federal Government
should lenders choose to sell their lowest balance loans. In addition,
lenders would be required to sell all 2007-08 Stafford loans held for a
specific borrower. These provisions make it less likely that lenders
will choose to sell only poorly-performing loans to the Department.
Conclusion. After taking into account alternative market and lender
behavior scenarios, the Administration determines that the Short-term
Purchase Program is in the best interest of the United States and will
result in no net cost to the Government.
Applicable Program Regulations: 34 CFR part 682.
Electronic Access to This Document. You may view this document, as
well as all other Department of Education documents published in the
Federal Register, in text or Adobe Portable Document Format (PDF) on
the Internet at the following site:
http://www.ed.gov/news/fedregister/index.html.
To use PDF you must have Adobe Acrobat Reader, which is available
free at this site. If you have questions about
[[Page 73268]]
using PDF, call the U.S. Government Printing Office (GPO), toll free,
at 1-888-293-6498; or in the Washington, DC area at (202) 512-1530. You
may also view this document in PDF at the following site:
http://www.ifap.ed.gov. You may obtain a copy of the Master Loan Sale
Agreement and direction regarding submission of the Master Loan Sale
Agreement and offers to sell loans at http://federalstudentaid.ed.gov/ffelp.
Note: The official version of this document is the document
published in the Federal Register. Free Internet access to the
official edition of the Federal Register and the Code of Federal
Regulations is available on GPO Access at:
http://www.gpoaccess.gov/nara/index.html.
(Catalog of Federal Domestic Assistance Number 84.032 Federal Family
Education Loan Program)
Program Authority: 20 U.S.C. 1087i-1.
Dated: November 26, 2008.
Margaret Spellings,
Secretary of Education.
Karthik Ramanathan,
Acting Assistant Secretary of the Treasury.
Jim Nussle,
Director, Office of Management and Budget.
[GRAPHIC] [TIFF OMITTED] TN02DE08.077
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[FR Doc. E8-28632 Filed 11-28-08; 11:15 am]
BILLING CODE 4000-01-P