[Federal Register Volume 75, Number 129 (Wednesday, July 7, 2010)]
[Notices]
[Pages 39003-39007]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-16372]
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DEPARTMENT OF EDUCATION
[Docket ID ED-2010-OPE-0007]
SAFRA Act Payments to Loan Servicers for Job Retention
ACTION: Interim final requirements; request for comments.
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SUMMARY: The U.S. Secretary of Education (Secretary) establishes
requirements to implement section 458(a)(7) of the Higher Education Act
of 1965, as amended (HEA), as added by section 2212(b)(1) of the SAFRA
Act, title II of the Health Care and Education Reconciliation Act of
2010 (SAFRA). Under this provision of the law, the Secretary provides
payments to student loan servicers in Federal fiscal year (FY) 2010 and
FY 2011 for retaining jobs at locations in the United States where such
servicers were operating under title IV, part B of the HEA (the Federal
Family Education Loan Program) on January 1, 2010.
As discussed in more detail elsewhere in these interim final
requirements, the Department adopts these requirements for FY 2010 on
an interim final basis. We also request public comment on these
requirements. After consideration of these comments, the Secretary will
publish final requirements that will govern the program for FY 2011.
DATES: These requirements are effective July 7, 2010. We must receive
your comments by August 6, 2010.
ADDRESSES: Submit your comments through the Federal eRulemaking Portal
or via postal mail, commercial delivery, or hand delivery. We will not
accept comments by fax or by e-mail. Please submit your comments only
one time, in order to ensure that we do not receive duplicate copies.
In addition, please include the Docket ID at the top of your comments.
Federal eRulemaking Portal: Go to http://www.regulations.gov to submit your comments electronically. Information
on using Regulations.gov, including instructions for accessing agency
documents, submitting comments, and viewing the docket, is available on
the site under ``How To Use This Site.''
Postal Mail, Commercial Delivery, or Hand Delivery: If you
mail or deliver your comments about these interim final requirements,
address them to Donald Conner, 1990 K Street, NW., Room 8030,
Washington, DC 20006.
Privacy Note: The Department's policy for comments received from
members of the public (including those comments submitted by mail,
commercial delivery, or hand delivery) is to make these submissions
available for public viewing in their entirety on the Federal
eRulemaking Portal at http://www.regulations.gov. Therefore,
commenters should be careful to include in their comments only
information that they wish to make publicly available on the
Internet.
FOR FURTHER INFORMATION CONTACT: Donald Conner, Telephone: 202-502-7818
or by e-mail: [email protected].
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:
Invitation To Comment
We invite you to submit comments regarding these interim final
requirements. To ensure that your comments have maximum effect in
developing the requirements for FY 2011 for this program, we urge you
to identify clearly the specific section or sections of the interim
final requirements that each of your comments addresses and to arrange
your comments in the same order as in the interim final requirements.
We invite you to assist us in complying with the specific
requirements of Executive Order 12866 and its overall requirement of
reducing regulatory burden that might result from these interim final
requirements. Please let us know of any further opportunities we should
take to reduce potential costs or increase potential benefits while
preserving the effective and efficient administration of the program.
During and after the comment period, you may inspect all public
comments about these interim final requirements by accessing
Regulations.gov. You may
[[Page 39004]]
also inspect the comments, in person, in room 8031, 1990 K Street, NW.,
Washington, DC, between the hours of 8:30 a.m. and 4 p.m., Washington,
DC time, Monday through Friday of each week except Federal holidays.
Assistance to Individuals With Disabilities in Reviewing the
Rulemaking Record: On request, we will provide an appropriate
accommodation or auxiliary aid to an individual with a disability who
needs assistance to review the comments or other documents in the
public rulemaking record for these interim final requirements. If you
want to schedule an appointment for this type of accommodation or
auxiliary aid, please contact the person listed under FOR FURTHER
INFORMATION CONTACT.
Background
On March 30, 2010, the President signed into law the Health Care
and Education Reconciliation Act of 2010, Public Law 111-152, title II
of which is the SAFRA Act. SAFRA made a number of changes to the
Federal student financial aid programs under title IV of the HEA. One
of the most significant changes made by SAFRA is to end new loans under
the Federal Family Education Loan (FFEL) Program authorized by title
IV, part B of the HEA as of July 1, 2010. Beginning July 1, 2010,
borrowers will receive any Stafford, PLUS, and Consolidation loans made
under the William D. Ford Federal Direct Loan Program. In connection
with the termination of the FFEL Program, SAFRA amended the HEA to
require the Secretary to provide payments to loan servicers for
retaining jobs at locations in the United States where such servicers
were operating under the FFEL Program on January 1, 2010. SAFRA
authorized and appropriated $25,000,000 for each of FY 2010 and FY 2011
for the Department to make these payments.
For FY 2010, the Secretary will allocate funds directly to loan
servicers actively engaged in servicing FFEL loans in the United States
as of January 1, 2010. Eligible entities may apply for funding in
accordance with the procedures included in these interim final
requirements, for each location at which it operated on January 1,
2010. The Secretary will allocate the payments among eligible
applicants based on the servicer's relative annualized payroll of
employees engaged in FFEL loan origination activities at each location
in the United States where it was servicing loans as of January 1,
2010, weighted by the local unemployment rate of the county or county
equivalent in which the facility is located.
For FY 2011 the Secretary will use, subject to consideration of
public comments received on these interim final requirements, the same
approach as that for FY 2010 but will also take into account the status
of the servicer's job retention efforts since the enactment of SAFRA.
Note: To ensure consideration of an application for funding
under this program, a complete, signed application and all required
information must be received by the Department on or before August
6, 2010. Instructions for completing and submitting the application
are in the application package, which can be obtained by contacting
Donald Conner, 202-502-7818, or by e-mail: [email protected]; or
by going to http://www.ed.gov/programs/safra/index.html.
Waiver of Rulemaking and Delayed Effective Date
Under the Administrative Procedure Act (APA) (5 U.S.C. 553), the
Department is generally required to publish a notice of proposed
rulemaking and provide the public with an opportunity to comment on
proposed regulations prior to establishing a final rule. However, we
are waiving the notice-and-comment rulemaking requirements under the
APA. Section 553(b) of the APA provides that an agency is not required
to conduct notice-and-comment rulemaking when the agency for good cause
finds that notice and public procedure thereon are impracticable,
unnecessary, or contrary to the public interest. Although these
requirements are subject to the APA's notice-and-comment requirements,
the Secretary has determined that it would be impracticable and
contrary to the public interest to conduct notice-and-comment
rulemaking.
These interim final requirements are needed to ensure timely
allocation of funds to loan servicers to meet the intent of the law.
The Secretary is required to award these funds by September 30, 2010.
Even on an extremely expedited timeline, the Department believes that
it would be impracticable for it to conduct notice-and-comment
rulemaking and to promulgate final requirements in time for FY 2010
funds to be distributed in accordance with section 458(a)(7) of the HEA
by that deadline. More specifically, the Department will need to
provide potential applicants with 30 days to submit their applications,
and the Department's review of the applications will take approximately
20 days. Upon conclusion of that review and the initial selection of
applicants for funding, the selected applicants will require 15 days to
submit their revised plans, and the Department will then need 15 days
to prepare its final funding list and make awards by September 30,
2010. It simply would not be possible for the Department to solicit and
respond to public comments, establish final requirements, and then
conduct the competition for funding in the short amount of time
remaining before September 30, 2010.
Accordingly, the Secretary is issuing these interim final
requirements without first publishing proposed requirements for public
comment.
Although the Department is adopting these requirements on an
interim final basis, the Department requests public comment on these
requirements so that any modifications, if necessary, can be made for
implementation of the program in FY 2011. After consideration of public
comments, the Secretary will publish final requirements.
The APA also requires that a substantive rule be published at least
30 days before its effective date, except as otherwise provided for
good cause (5 U.S.C. 553(d)(3)). For the reasons outlined in the
preceding paragraphs, the Secretary has determined that a delayed
effective date for these interim final requirements would be
unnecessary and contrary to the public interest, and that good cause
exists to waive the requirement for a delayed effective date. As such,
these requirements are effective on the date they are published.
Summary of the Interim Final Requirements
These interim final requirements include the following provisions,
which we have determined are necessary to implement section 458(a)(7)
of the HEA:
Application process and eligibility requirements. This
notice describes the application process requirements for eligible
entities to receive funds for FY 2010 and FY 2011. Applicants need not
be recipients of FY 2010 funds to be eligible to apply for FY 2011
funds.
Definitions. This notice establishes definitions for key
terms used for this program, including adjusted eligible payroll,
domestic employees, eligible employees, eligible entity, eligible
payroll, local unemployment rate, review period, servicing FFEL loans,
and total payroll.
Allowable Use of Funds. This notice describes the types of
activities for which grantees can use funds awarded under this program.
Content of application requirements. This notice describes
the information, including a job retention
[[Page 39005]]
plan, that eligible entities must include in their applications.
Reporting requirements and required deadlines. This notice
describes the annual reporting requirements on the use of funds and the
deadlines for the reports.
Funding allocation formulas for FY 2010 and FY 2011. This
notice describes the allocation formula to be used for the distribution
of funds for both FY 2010 and FY 2011; however, the requirements for FY
2011 may be amended in response to the request for public comments in
this notice.
Interim Final Requirements
Process
Any entity submitting an application for a payment under section
458(a)(7) of the HEA must be an eligible entity (as defined in this
notice). Applicants that submit an application, including a plan to use
FY 2010 funds that meets the requirements set forth in this notice, and
that have an eligible payroll, will be notified by the Department of
the actual amount of funds they will receive for FY 2010. After
receiving this notification, but before the Department disburses funds
to the applicant, the applicant must submit to the Secretary an updated
plan that describes how the applicant will use the funds to preserve
jobs; this updated plan must be based on the actual amount of funding
the applicant will receive.
Applicants need not be recipients of FY 2010 funds to be eligible
to apply for FY 2011 funds.
Only eligible entities submitting complete applications by the
application deadline will be considered for funding. Any funds received
and not used in accordance with the Allowable Use of Funds requirement
established in this notice must be returned to the Secretary.
Definitions: For purposes of this program, we are establishing the
following definitions:
Adjusted Eligible Payroll: For each location, the adjusted eligible
payroll is the payroll amount determined by applying the unemployment
adjustment formula (described in these requirements) to the eligible
payroll for that location.
Domestic Employees: The eligible entity's employees, but not
contractors, working for a location in a State as defined by section
103(20) of the HEA.
Eligible Employees: The eligible entity's domestic employees,
employed by the eligible entity as of March 31, 2010, who spent more
than 50 percent of their time during the review period working for one
of the eligible entity's locations to market, evaluate, authorize, or
recommend approval of FFEL Program loans.
Eligible Entity: Any company or organization that was engaged in
servicing FFEL loans on January 1, 2010, and that submits a complete
application by the deadline established by the Secretary.
Eligible Payroll: The total annual contribution and benefit base,
as defined by 42 U.S.C. 430, for all eligible employees at each
location.
Local Unemployment Rate: The unemployment rate of the county or
county equivalent in which a facility is located for the 12-month
period ending on March 31, 2010. For purposes of this definition, the
Secretary will use current local area unemployment statistics for
counties and county equivalents compiled by the U.S. Bureau of Labor
Statistics, rounded to the nearest one-tenth of one percent: http://www.bls.gov/lau.
Review Period: For the purposes of determining total payroll for FY
2010 funds, the one-year period ending on March 31, 2010, the date of
enactment of the SAFRA Act, used to calculate the number of eligible
employees. For the purposes of determining total payroll for FY 2011
funds, the one-year period ending on March 31, 2011.
Servicing FFEL Loans: Providing collection, origination, deferment
processing, and borrower contact services to a lender in connection
with FFEL Loans.
Total Payroll: The total annual contribution and benefit base as
defined by 42 U.S.C. 430, for all domestic employees at each location
during the review period.
Requirements
Allowable Use of Funds: Eligible entities must use funds awarded
under this program for either or both of the following:
(a) Job training and related services to permit current employees,
whose employment status has been negatively affected by SAFRA, to
maintain employment with the eligible entity.
(b) Job training and related services that lead laid-off eligible
employees to a position at another entity.
Content of Application: Eligible entities that apply to the
Secretary for funding under this program must include, as part of their
application, a job retention plan. That job retention plan must
include, for each location for which the applicant is requesting funds:
(a) A viable business plan describing how the applicant plans to
continue the employment of employees who might otherwise lose their
jobs due to the termination of new originations in the FFEL Program;
(b) The address of each facility in each location for which the
applicant is requesting payment;
(c) For each location, the number of total employees and total
payroll and the number of eligible employees and eligible payroll; and
(d) A budget and timeline outlining how the applicant will use the
funds in accordance with this program's Allowable Use of Funds
requirement (described in this notice).
Reporting Requirements: Each recipient of funds under this program
must submit a report to the Secretary for each year funds are received.
Content of Report. The report must include--
(a) An accounting of how all funds were used at each location;
(b) A description of all activities funded at each location; and
(c) A description and analysis of the effect of the use of those
funds on job retention of eligible employees.
Deadlines. Eligible entities that receive FY 2010 funds under this
program, but that will not apply for FY 2011 funds, must submit the
report to the Secretary no later than one year from the receipt of
funds for FY 2010.
Eligible entities that receive funds for FY 2010 and that will
apply for FY 2011 funds under this program must submit the required
report prior to the application deadline for FY 2011 funding.
Eligible entities that receive funds under this program for FY 2011
must submit a report regarding those funds to the Secretary no later
than one year from the date of receipt of FY 2011 funds.
Funding Allocation Formula--FY 2010
General. To determine the amount of funding to be disbursed to
eligible entities under this program, the Secretary will calculate the
adjusted eligible payroll for each location of each eligible entity as
a proportion of the total adjusted eligible payroll for all locations
across all eligible entities. The Secretary will then distribute the
$25 million available based on those proportions.
Calculating Adjusted Eligible Payroll. For each location of an
eligible entity, the Secretary will adjust the location's eligible
payroll by applying a formula that takes into consideration the local
unemployment rate for the location.
Unemployment Adjustment Formula. The Secretary will apply a sliding
scale formula based on the difference (D) between the Local
Unemployment Rate (L) for each location and the national
[[Page 39006]]
historical unemployment rate for 1948-2009 (N), which is used to
compute an adjustment multiplier (M).
N = 5.8
D = L-N
If D < 2, then M = 1
If D >= 2, then M = D/2
Adjusted eligible payroll for each location is calculated by
multiplying the location's eligible payroll by the adjustment
multiplier (M).
The following chart contains six examples of the application of the
unemployment adjustment formula:
------------------------------------------------------------------------
Difference (D) Multiplier (M)
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-1.................................................. 1
1.3................................................. 1
2.7................................................. 1.35
3.5................................................. 1.75
5.8................................................. 2.9
9................................................... 4.5
------------------------------------------------------------------------
Funding Allocation Formula--FY 2011
For FY 2011, funds will be distributed according to the Funding
Allocation Formula--FY 2010, except that the Secretary will also
consider the facility's job retention performance. Specifically, to
determine the facility's job retention performance, the Secretary will
adjust each eligible entity's eligible payroll for FY 2011 to take into
account any decrease in total payroll for each of the eligible entity's
domestic U.S. locations on a dollar-for-dollar basis. The Secretary
will adjust an entity's eligible payroll only when there is a decrease
in total payroll; no adjustments will otherwise be made.
Example: At one location, an entity's eligible payroll before
being adjusted for unemployment was $15,000,000 and the total
payroll for the applicant at the same time was $100,000,000. If by
the time the entity applies for FY 2011 funds, its total payroll at
that location decreases by $5,000,000 to $95,000,000, then its
eligible payroll at that one location, before being adjusted for
unemployment, decreases by $5,000,000 to $10,000,000. After these
new eligible payroll amounts are determined and then adjusted for
unemployment for all of the eligible entity's locations, proportions
will be determined and the $25,000,000 for 2011 will be divided
among eligible entities' locations accordingly.
Executive Order 12866
Under Executive Order 12866, the Secretary must determine whether a
regulatory action is ``significant'' and therefore subject to the
requirements of the Executive order and subject to review by the Office
of Management and Budget (OMB). Section 3(f) of Executive Order 12866
defines a ``significant regulatory action'' as an action likely to
result in a rule that may (1) have an annual effect on the economy of
$100 million or more, or adversely affect a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local or Tribal governments or communities in a
material way (also referred to as an ``economically significant''
rule); (2) create serious inconsistency or otherwise interfere with an
action taken or planned by another agency; (3) materially alter the
budgetary impacts of entitlement grants, user fees, or local programs
or the rights and obligations of recipients thereof; or (4) raise novel
legal or policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in the Executive order. The
Secretary has determined that this regulatory action is not significant
under section 3(f) of the Executive order.
Potential Costs and Benefits
Under Executive Order 12866, we have assessed the potential costs
and benefits of this regulatory action and have determined that this
rule will not impose additional costs to State applicants, grantees, or
the Federal government. The Department is issuing these requirements to
implement a new legislative provision resulting from the enactment of
the SAFRA Act. Additionally, the Department has determined that this
regulatory action does not unduly interfere with State, local, and
Tribal governments in the exercise of their governmental functions.
Regulatory Flexibility Act Certification
The Secretary certifies that these interim final requirements will
not have a significant economic impact on a substantial number of small
entities. The U.S. Small Business Administration Size Standards define
for-profit servicers as ``small businesses'' if they are independently
owned and operated and not dominant in their field of operation with
total annual revenue below $7,000,000. Other servicers would be
considered small if they are a nonprofit servicer independently owned
and operated and not dominant in their field of operation, or if they
are institutions controlled by governmental entities with populations
below 50,000. The Department estimates that approximately thirty-seven
servicers will apply. Of this group, approximately fifteen are expected
to be for-profit servicers, none of which are expected to fall below
the $7,000,000 revenue threshold for small business status.
Approximately twenty-two non-profit or public servicers could apply.
Even if we assume all servicers are considered to be small entities,
the rule does not impose significant costs.
The Secretary makes this certification because the rule offers
servicers the opportunity to apply for payments for job retention, but
does not mandate participation or impose cost-matching requirements.
Even if all thirty-seven servicers expected to apply are assumed to be
small entities, the estimated cost to apply for funds, update their job
retention plans, and submit the required reports is approximately $723
per institution. An hourly rate of $21.60 was used to monetize the
burden of these provisions. This was a blended rate based on wages of
$18.82 for office staff and $37.37 for managers, assuming that office
staff would perform 85 percent of the work affected by these
regulations. The Secretary invites comments from small institutions and
other affected entities as to whether they believe the proposed changes
would have a significant economic impact on them and, if so, requests
evidence to support that belief.
Paperwork Reduction Act of 1995
The interim final requirements contain information collection
requirements. Under the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)), the Department of Education has submitted a copy of these
requirements to the Office of Management and Budget (OMB) for its
review.
Collection of Information: SAFRA Act Payments to Loan Servicers for
Job Retention.
I. Application and Initial Plan
Any entity submitting an application for a payment under section
458(a)(7) of the HEA must be an eligible entity (as defined in this
notice). Applicants that submit an application, including a plan to use
FY 2010 funds that meets the requirements set forth in this notice, and
that have an eligible payroll, will be notified by the Department of
the actual amount of funds they will receive for FY 2010. We estimate
that 37 servicers would submit an application, including a plan
describing how they would use FY 2010 funds in accordance with the
requirements in this notice. We estimate that each application would
take an applicant 1 hour to complete, totaling 37 hours of new burden
that would be included for approval under OMB Control Number 1840-0815.
We estimate that development of each plan would take, on average, 14
hours for a total of 518 hours of new burden that would be included for
approval under OMB Control Number 1840-0815. Collectively, the total
estimated burden
[[Page 39007]]
for servicers to complete an application for these job retention funds,
including developing their initial plans describing how the applicants
would use funds, would be 555 hours of new burden under OMB Control
Number 1840-0815.
II. Updated Plan
After the Department notifies the applicant, but before the
Department disburses funds to the applicant, the applicant must submit
to the Secretary an updated plan that describes how the applicant will
use the funds to preserve jobs; this updated plan must be based on the
actual amount of funding the applicant will receive, as indicated in
the notification provided by the Department. We estimate that each of
the projected 37 applicants would take an additional 7 hours to update
their plans for final submission to the Secretary for a total of 259
hours of new burden under OMB Control Number 1840-0815.
III. Reporting
Each recipient of funds under this program must submit a report to
the Secretary for each year funds are received. We expect that all 37
estimated applicants would ultimately receive funds under this program.
Each recipient's report must include an accounting of how all funds
were used at each location; a description of all activities funded at
each location; and a description and analysis of the effect of the use
of those funds on job retention of eligible employees. We estimate that
each of the projected 37 recipients of these job retention funds would
take, on average, 25 hours to collect the required information and
report it to the Secretary, for a total of 925 hours of new burden
under OMB Control Number 1840-0815.
Collection of Information
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Regulatory section Information collection Collection
----------------------------------------------------------------------------------------------------------------
I. Application..................................... Qualified student loan OMB 1840-0815. This is a new
servicers can complete an collection for which the
application and an Office of Management and
initial job retention Budget has provided emergency
plan to obtain funding approval. The Department will
consistent with the also conduct a regular
requirements of this clearance in order to award FY
notice. 2011 funds and will publish a
separate 60-day Federal
Register notice seeking public
comment. The burden would
increase by 555 hours.
II. Updated plan................................... Qualified student loan OMB 1840-0815. This is a new
servicers who are collection for which the
selected to participate Office of Management and
in this program must, Budget has provided emergency
prior to receiving their approval. The Department will
funding, update and also conduct a regular
submit their plan once clearance in order to award FY
the amount awarded is 2011 funds and will publish a
known to the recipient. separate 60-day Federal
Register notice seeking public
comment. The burden would
increase by 259 hours.
III. Reporting..................................... Annually, each recipient OMB 1840-0815. This is a new
entity must report collection for which the
consistent with the Office of Management and
requirements in this Budget has provided emergency
notice by the deadline approval. The Department will
established by the also conduct a regular
Secretary. clearance in order to award FY
2011 funds and will publish a
separate 60-day Federal
Register notice seeking public
comment. The burden would
increase by 925 hours.
----------------------------------------------------------------------------------------------------------------
Intergovernmental Review
This program is not subject to Executive Order 12372 and the
regulations in 34 CFR 79.
Electronic Access to This Document
You may view this document, as well as all other documents of this
Department 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. To use PDF, you must have Adobe Acrobat
Reader, which is available free at this site.
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.
Delegation of Authority: The Secretary of Education has delegated
authority to Daniel T. Madzelan, Director, Forecasting and Policy
Analysis for the Office of Postsecondary Education, to perform the
functions and duties of the Assistant Secretary for Postsecondary
Education.
Dated: June 30, 2010.
Daniel T. Madzelan,
Director, Forecasting and Policy Analysis.
[FR Doc. 2010-16372 Filed 7-6-10; 8:45 am]
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