Publication Date: January 24, 2007
DCL ID: FP-07-01
Subject: FFELP Loans Eligible for 9.5 Percent Minimum Special Allowance Rate
Summary: This letter restates the applicable requirements of the HEA and regulations that control whether FFELP loans acquired with funds derived from tax-exempt financing sources acquire eligibility for special allowance payments at the 9.5 percent minimum return rate
Posted on 01-24-2007
Recent examination of activities involving tax-exempt financing of Federal Family Education Loan Program (FFELP) loans indicates that it is appropriate to restate the requirements of the Higher Education Act of 1965, as amended (HEA) and the Department's regulations that control whether FFELP loans made or acquired with funds derived from tax-exempt financing sources acquired eligibility for SAP at the 9.5 percent minimum return rate.
The HEA identifies the specific sources of funds derived from a tax-exempt obligation that can be used to acquire loans that qualify for SAP at the 9.5 percent minimum return rate. 20 U.S.C. § 1087-1(b)(2)(B)(i)(2006). These sources are: (1) funds obtained from the issuance of a tax-exempt obligation originally issued prior to October 1, 1993 or from investment earnings on the proceeds of such an obligation; and (2) funds obtained as collections on, interest benefits or special allowance payments on, or income on, loans made or purchased from the proceeds of that tax-exempt obligation. Id. The regulations describe these sources of funds in precise terms, as follows:
34 C.F.R. § 682.302(c)(3)(i)
(2006). These requirements have been in effect since 1993. Only the loans described
in these statutory and regulatory provisions are eligible for SAP at the 9.5
percent minimum return rate. Each of the five categories (paragraphs (c)(3)(i)(A)
through (c)(3)(i)(E)) includes funds separate and distinct from the funds in
any other category. Each category of funds includes only those funds obtained
directly from the specific source named in that paragraph.
Loans acquired from these
five sources can be divided into two categories. The first category is "first-generation
loans" - and includes only those loans acquired using proceeds of the tax-exempt
obligation (i.e., funds obtained directly from the issuance of the tax-exempt
obligation). See 34 C.F.R. § 682.302(c)(3)(i)(A) (2006). The second category
is "second-generation loans" - and includes only those loans acquired
using funds obtained directly from first-generation loans.2 See 34 C.F.R. §
682.302(c)(3)(i)(B)-(D) (2006). Funds obtained as collections on second-generation
loans, interest and special allowance payments on second-generation loans, or
sales of second-generation loans, or those same kinds of funds obtained from
later generation loans, are not eligible sources of funds under the statute
or regulation. Therefore, loans acquired with funds from second-generation loans
or later generations of loans are not eligible for SAP at the 9.5 percent minimum
1 The term "sale" as used in paragraph (c)(3)(i)(D) includes both a sale to a third party and an intra-portfolio transfer of loans.
2 Loans from investments of proceeds, described in paragraph (c)(3)(i)(E), are like second-generation loans - the loans themselves qualify for the minimum rate, but loans acquired with funds obtained as collections, interest and SAP, or the sale of those loans described in paragraph (c)(3)(i)(E) do not. To ensure clarity regarding the eligibility of loans made from various funding sources, therefore, any references here to second-generation loans are to be understood to include loans made from investment earnings.