**DRAFT**

**04/06/2015**

# Issue Paper 2

**Session 2:**March 31 – April 2, 2015

**Issue:**Establishing procedures for Federal Family Education Loan (FFEL) Program loan holders to use the Department of Defense’s Defense Manpower Data Center (DMDC) database to identify U.S. military servicemembers who may be eligible for a lower interest rate on their FFEL Program loans under the Servicemembers Civil Relief Act (SCRA).

**Statutory cites:**§428(d) of the Higher Education Act of 1965, as amended

50 U.S.C. §527, App. Sec. 207 of the SCRA

**Regulatory cites:**§§682.202, 682.208, and 685.202

**Summary of Change:**Expands the provisions under §682.202 and §682.208 to require loan holders to determine a borrower’s active duty military status for application of the Servicemembers Civil Relief Act (SCRA) maximum interest rate based on information from the authoritative electronic database maintained by the Department of Defense. Modifies §685.202(a)(11) to provide that for Direct Loans, the Secretary assures the interest rate under the SCRA does not exceed six percent upon receipt of evidence of the borrower’s active duty military service. Modifies §682.410 to require guaranty agencies to apply the maximum interest rate under the SCRA upon receipt of evidence of the borrower’s active duty military service.

**§682.202   Permissible charges by lenders to borrowers.**

The charges that lenders may impose on borrowers, either directly or indirectly, are limited to the following:

(a) Interest.  

[ * * * ]

(8) *Applicability of the Servicemembers Civil Relief Act (SCRA) (50 U.S.C. 527, App. sec. 207*). Notwithstanding paragraphs (a)(1) through (a)(4) of this section, a loan holder must use the official electronic database maintained by the Department of Defense to identify all borrowers who are active duty servicemembers, as defined in 10 U.S.C. 101(d)(1) and (d)(5), and ensure the interest rate on the loan does not exceed the six percent maximum interest rate as defined in 50 U.S.C. 527, App. section 207(d). ~~The maximum interest rate on FFEL Program loans made prior to the borrower entering active duty status is 6 percent while the borrower is on active duty military service.~~For purposes of this paragraph, the interest rate includes any other charges or fees applied to the loan.

[* * *]

**§682.208   Due diligence in servicing a loan.**

**[ * * * ]**

(j)(1)  Effective July 1, 2016, a loan holder is required to use the official electronic database maintained by the Department of Defense, to--

(i) Identify all borrowers who are active duty servicemembers and who are eligible under paragraph §682.202(a)(8; and

(ii) Confirm the dates of the borrower’s active duty status and begin, extend, or end, as applicable, the use of the SCRA interest rate limit of six percent without further contact with the borrower.  

(2) The loan holder must compare its list of borrowers against the database maintained by the Department of Defense at least monthly to identify servicemembers who are in active duty status.

(3) A borrower may provide the loan holder with alternative evidence of active duty service to demonstrate eligibility if the borrower believes that the information contained in the Department of Defense database is inaccurate or incomplete.  Acceptable alternative evidence includes --

(i) A copy of the borrower’s military orders; or 

(ii) The certification of the borrower’s military service from an authorized official, in connection with the borrower’s request for another benefit on the loan.

(4)  When the loan holder determines that the borrower is eligible under §682.202(a)(8), the loan holder must ensure the interest rate on the borrower’s loan does not exceed the SCRA interest rate limit of six percent.

(i) The loan holder must apply the SCRA interest rate limit of six percent for the longest eligible period verified with the official electronic database, or alternative evidence of active duty service received under 682.208(j)(3), using the combination of evidence received that provides the borrower with the earliest active duty start date and the latest active duty end date.

(ii) In the case of a reservist, the loan holder must use the reservist’s notification date as the start date of the military service period.

(5) When the loan holder applies the SCRA’s interest rate limit of six percent to a borrower’s account, it must notify the borrower in writing within 30 days that the interest rate on the loan has been reduced to six percent during the borrower’s period of active duty service.

(6) The loan holder must end the application of the SCRA interest rate limit of six percent as of the borrower’s active duty status end date as reflected in the electronic database, or or alternative evidence of active duty service received under 682.208(j)(3)~~a~~, using the combination of evidence received that provides the borrower with the earliest active duty start date and the latest active duty end date.

(7) (i) For PLUS loans with an endorser, the loan holder must use the official electronic database to begin, extend, or end, as applicable, the SCRA interest rate limit of six percent to the loan regardless of whether the loan holder is currently pursuing the endorser for repayment of the loan. 

(ii) If both the borrower and the endorser are eligible for the SCRA interest rate limit of six percent on a loan, the loan holder must use the earliest active duty start date and the latest active duty end date of either party to begin, extend, or end, as applicable, the use of the SCRA interest rate limit.

(8) If either borrower on a joint consolidation loan is eligible for the SCRA interest rate limit of six percent on that loan, the loan holder must use the earliest active duty start date and the latest active duty end date to begin, extend, or end, as applicable, the use of the SCRA interest rate limit.

(9) If the application of the SCRA interest rate limit of six percent to a loan that has already been paid in full through consolidation results in an overpayment, the loan holder must return the overpayment to the holder of the consolidation loan.

(10) For any other circumstances where application of the SCRA interest rate limit of six percent results in an overpayment of the remaining balance on the loan, the loan holder must refund the amount of that overpayment to the borrower.

**§682.410     Fiscal, administrative, and enforcement requirements.**

**[ * * * ]**

(b) *Administrative requirements*

**[ * * * ]**

(3) *Interest charged by guaranty agencies*.  The guaranty agency shall charge the borrower interest on the amount owed by the borrower after the capitalization required under paragraph (b)(4) of this section has occurred at a rate that is--

(i) The greater of—

(A) The rate established by the terms of the borrower's original promissory note; 

(B) In the case of a loan for which a judgment has been obtained, the rate provided for by State law; or

(ii) Not in excess of the Servicemembers Civil Relief Act interest rate limit of six percent if the guaranty agency determines that the borrower is eligible for the interest rate limit of six percent under §682.202(a)(8).

**§685.202   Charges for which Direct Loan Program borrowers are responsible.**

**(a) Interest**

**[ * * * ]**

(11) *Applicability of the Servicemembers Civil Relief Act (50 U.S.C. 527, App. sec. 207)*.  Notwithstanding paragraphs (a)(1) through (10) of this section, upon the Secretary's receipt of evidence of the borrower’s active duty military service under 34 CFR 682.208(j), the maximum interest rate, as defined in 50 U.S.C. 527, App. section 207(d), on Direct Loan Program loans made prior to the borrower entering active duty status is six percent while the borrower is on active duty military service.  For purposes of this paragraph, the interest rate includes any other charges or fees applied to the loan.

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