Federal and State Regulation of Student Loan Servicers: A Legal Overview

Summary: As the federal government's role in the student loan industry has expanded over time, the United States has contracted with student loan servicers to help it administer its growing student loan portfolio. These servicers perform a variety of functions, including (1) communicating with borrowers regarding repayment; (2) disclosing information about student loan terms to borrowers; (3) applying payments to outstanding loan balances; (4) processing applications for enrollment in repayment plans; and (5) processing requests for loan forbearance and deferment. Several federal statutes and regulationsâalong with an array of contractual provisionsâmay affect how these servicers conduct these various functions on the government's behalf with respect to federal student loans.

Summary: Some allege that the existing scheme of federal regulation has not deterred servicers from engaging in various forms of alleged misconduct. According to critics, servicers of federal student loans have engaged in several undesirable behaviors, such as (1) steering borrowers experiencing financial hardship toward forbearance instead of repayment plans that would be more beneficial; (2) neglecting to inform borrowers of the consequences of failing to promptly submit certain required information; (3) misinforming borrowers on their eligibility for loan forgiveness; and (4) misallocating or misapplying loan payments. The servicers deny these allegations.

Summary: Federal laws governing higher education do not authorize borrowers who have allegedly been harmed by servicer misconduct to directly pursue litigation against servicers. Instead, existing law places the primary burden of policing federal student loan servicers upon the federal government. Some commentators disagree, however, over whether the U.S. Department of Education (ED) has exercised sufficient oversight over the servicers with which it contracts. Observers have also disagreed over the extent to which other federal agencies, such as the Consumer Financial Protection Bureau (CFPB), should participate in the regulation of federal student loan servicers.

Summary: At the same time, more and more states have enacted legislation specifically targeted at student loan servicers. While the specifics of these laws vary from state to state, many purport to impose legal requirements upon servicers of federal student loans that go beyond those imposed by federal law, such as supervision by a state ombudsperson or mandatory licensing. Furthermore, in addition to new laws specifically aimed at servicers, state attorneys general and borrowers alike have invoked existing state consumer protection statutes and common law causes of action against servicers in civil litigation. These burgeoning disputes between servicers on the one hand and states and borrowers on the other have raised legal questions regarding how existing federal law interacts with the growing body of state servicing regulations. ED has taken the position that federal law "preempts"âthat is, displacesâstate laws purporting to regulate servicers of federal student loans. While some courts have agreed with ED's conclusions on preemption, the bulk of courts have reached the opposite conclusion that states retain a role in regulating student loan servicing.

Summary: This ongoing legal debate has significant legal consequences. On the one hand, if federal law preempts state servicing regulations, servicers will be subject to a single uniform national standard and will not need to expend resources to comply with each jurisdiction's state-specific regulatory regime. On the other hand, allowing states to enact and enforce their own servicing laws could fill regulatory gaps whereâat least in the view of some criticsâexisting federal regulation has not ensured that servicers perform their duties with sufficient regard for borrowers' interests. Preserving a regulatory role for the states could also enable each state to experiment with novel regulatory schemes. Given these legal consequences, several Members and committees of the 116th Congress have expressed interest both in the federal regulation of servicers generally and the preemptive scope of that regulation.

T he United States has created vast federal loan programs offering to millions of students alternatives to private educational loans . According to the U.S. Department of Education's (ED's) Office of Federal Student Aid (FSA), nearly 43 million borrowers owed money on federal student loans as of the second quarter of 2019, and the total amount of outstanding federal student loan debt currently exceeds $1.4 trillionâa figure that has nearly tripled since 2007. In recent years, a significant number of these borrowers have experienced difficulty repaying their student loans. Moreover, borrowers who lack financial experience may need guidance to navigate the student loan repayment process, which some borrowers find daunting or confusing. Student loan servicers âwith whom the United States has contracted to assist with the administration of its sizable student loan portfolio âare a key source of guidance and assistance for borrowers struggling to understand and repay their federal student loans. Under its contract with the federal government, a servicer may be responsible for (among other things)

communicating with borrowers regarding repayment; disclosing information about student loan terms to borrowers; applying payments to outstanding loan balances; processing applications for enrollment in repayment plans; processing applications for loan forgiveness or discharge; and processing requests for loan forbearance or deferment.

Some maintain that at least some of these federal student loan servicers have engaged in various forms of undesirable conduct, such as steering borrowers away from beneficial repayment options or providing inaccurate or incomplete information. Representatives from the servicing industry deny these accusations.

These allegations of servicer misconduct have drawn the attention of both federal and state policymakers. At least two congressional subcommittees have conducted hearings on student loan servicing within the past few months , and the House Committee on Financial Services conducted another hearing on the topic on September 10, 2019. Additionally, several state legislatures have enacted new laws to regulate student loan servicers within the past few years. A number of state attorneys general and individual borrowers have also tried to pursue civil litigation against servicers of federal student loans based on alleged violations of state statutory and common law.

The states' involvement has raised questions involving the appropriate interaction between federal and state law, as well as the respective roles of the federal and state governments with respect to regulating student loan servicers. Significantly, ED has taken the position that the existing regime of federal regulation of student loan servicers leaves no room for state regulation on the topic. While some courts have agreed with this position, others have concluded that current federal law permits the state to regulate servicers with whom the federal government contracts.

This report analyzes the regulation of servicers of federal student loans. After providing necessary background information regarding the federal student loan programs, the report describes federal law governing student loan servicers. The report then discusses how some states and borrowers have tried to enact or enforce state laws to regulate servicers of federal student loans. Then, the report analyzes the legal issues implicated by the interaction of federal and state servicing laws, including whether (and, if so, to what extent) federal servicing regulation preempts the states from creating or enforcing servicing laws of their own. The report concludes by identifying relevant legal considerations for Congress.

Background on the Federal Student Loan Programs

The federal government's roles with respect to the operation, supervision, and administration of federal student loan programs have evolved over time. Around the turn of the millennium, for instance, most (though not all) federal student loans were issued under the now-discontinued Federal Family Education Loan Program (FFELP), under which private lenders extended loans to borrowers that the federal government guaranteed against the risk of loss. Although the federal government set the terms and conditions of FFELP loans and subsidized the FFELP program, various entities other than the federal government also helped operate the FFELP. For example, private lenders (or third parties with which those lenders contracted) bore the responsibility of servicing FFELP loans.

Several recent developments, however, have shifted the federal government's role in the student loan system. In 2008, for instance, Congress enacted the Ensuring Continued Access to Student Loan Act (ECASLA), which authorized ED to purchase outstanding FFELP loans from private lenders. Thus, for the nearly 4 million loans that ED purchased from private lenders under ECASLA, "the federal government is now the 'lender.'" Then, in 2010, Congress enacted the Student Aid and Fiscal Responsibility Act (SAFRA), which, among other things, terminated the authority to make new FFELP loans. As a result of SAFRA, the United States now issues most new federal student loans through the Federal Direct Loan Program (FDLP), under which the government itselfârather than a private lenderâextends loans directly to students. These developments have thereby expanded the federal government's direct involvement in the student loan industry, which in turn has prompted the United States to rely increasingly on servicers to administer aspects of the federal student loan programs.

Federal Laws and Contractual Requirements Governing Student Loan Servicers

A variety of federal statutes and regulationsâas well as contractual provisionsâbear on the servicing of federal student loans.

One such statute is Title IV of the Higher Education Act of 1965 (HEA), which (among other things) establishes programs to provide financial assistance to postsecondary students, including the FDLP. Title IV also governs loans issued under the now-discontinued FFELP that remain outstanding.

Title IV contains several provisions that pertain to student loan servicing. The first such provision is 20 U.S.C. Â§ 1082, which applies to FFELP loans. 20 U.S.C. Â§ 1082(a)(1), for instance, empowers the Secretary of Education (Secretary) to "prescribe . . . regulations applicable to third party servicers," "including regulations concerning financial responsibility standards for, and the assessment of liabilities for program violations against, such servicers." Section 1082(a)(1) explicitly specifies, however, that "in no case shall damages be assessed against the United States for the actions or inactions of such servicers." Section 1082( l )(1) in turn requires the Secretary to promulgate regulations "prescrib[ing] standardized forms and procedures regarding .Â .Â . [student loan] servicing." In addition, Section 1082(p) requires certain officers, directors, employees, and consultants of student loan servicing agencies to submit reports to the Secretary disclosing potential financial conflicts of interest.

Another provision, 20 U.S.C. Â§ 1087f, applies to FDLP loans. Section 1087f(a)(1) directs the Secretary to award federal loan servicing contracts to eligible servicers "to the extent practicable." The Secretary may enter into servicing contracts only with "entities which the Secretary determines are qualified to provide such services" that possess "extensive and relevant experience and demonstrated effectiveness." Additionally, "[i]n awarding such contracts, the Secretary" must "ensure that such services . . . are provided at competitive prices."

Yet another provision that has been particularly critical to the current legal debate over student loan servicing regulations is 20 U.S.C. Â§ 1098g's express preemption provision, which states that "[l]oans made, insured, or guaranteed pursuant to a program authorized by Title IV of the [HEA] shall not be subject to any disclosure requirements of any State law." As explained below, courts have reached divergent conclusions regarding the significance of this statutory provision.

Regulations Specifically Governing Loan Servicing

ED has promulgated several servicing-related regulations under its rulemaking authority under Title IV of the HEA. Nearly all of these regulations are codified in Part 682 of Title 34 of the Code of Federal Regulations, which governs FFELP loans rather than FDLP loans. 34 C.F.R. Â§Â 682.203(a), for instance, contemplates that an FFELP lender "may contract or otherwise delegate the performance of its functions under" governing federal law "to a servicing agency," but emphasizes that doing so "does not relieve the . . . lender . . . of its duty to comply with" all applicable statutes and regulations. 34 C.F.R. Â§ 682.208 in turn prescribes actions that a servicer must take when servicing an FFELP loan, including "responding to borrower inquiries, establishing the terms of repayment, and reporting a borrower's enrollment and loan status information." Similarly, 34 C.F.R. Â§ 682.416 establishes administrative responsibility and financial responsibility standards that third-party servicers of FFELP loans must satisfy. In addition, 34 C.F.R. Â§ 682.416(e) imposes auditing requirements on servicers of FFELP loans. Should a servicer violate any of the federal requirements that apply to it, Subpart G of Part 682 establishes a variety of procedures for addressing those violations, including administrative proceedings to limit, suspend, or terminate the servicer's eligibility to enter into servicing contracts.

It is unclear whetherâand, if so, to what extentâthese FFELP loan servicing regulations apply to servicers of FDLP loans. Section 1087e(a)(1) of the HEA provides that, with certain exceptions, FDLP loans "shall have the same terms, conditions, and benefits" as FFELP loans. At least one court has therefore concluded that Section 1087e(a)(1) embodies a general congressional preference that FDLP and FFELP loans be governed by the same legal standards. The few judicial opinions interpreting Section 1087e(a)(1) do not conclusively resolve, however, whether FFELP regulations governing third-party servicers qualify as "terms, conditions, and benefits" of FFELP loans that would apply equally to FDLP servicers. Furthermore, courts considering whether FFELP regulations apply to FDLP loans outside the loan-servicing context have reached divergent conclusions. Nor do the portions of the servicing contracts that FSA has posted on its website specify whether servicers of FDLP loans must follow the FFELP servicing regulations. It is possible, however, that ED may nonetheless demand or expect its FDLP servicers to comply with some or all of the FFELP servicing standards. Moreover, some servicers have implicitly suggested in litigation briefs that at least some of the FFELP servicing regulations apply to FDLP servicers.

General Regulatory Duties That ED Has Delegated to Servicers

In addition to regulations that directly concern loan servicing, ED has also promulgated regulations establishing various responsibilities that the Secretary must fulfill, which the Secretary has in turn delegated to servicers. 34 C.F.R. Â§ 685.221(e)(3), for instance, requires the Secretary to "notif[y] the borrower in writing of" the requirement to regularly submit income recertification information to remain eligible to participate in an income-driven repayment (IDR) plan, which this report details below. ED has delegated that notification responsibility to servicers with which it contracts.

Servicer Contracts with the Federal Government

Pursuant its authority to enter into servicing contracts, ED has contracted with multiple entities to service federal student loans. These contracts govern many details of those servicers' operations, including financial reporting, transaction management, internal controls, accounting, and security. The servicing contracts also contain several mechanisms that ED may invoke against servicers that violate applicable federal requirements, including (1) ordering the noncompliant servicer "to return any fees that [it] billed to [ED] from the time of noncompliance" or (2) "reallocating new loan volume to other servicers or transferring all or part of the noncompliant servicer's current loan volume to another servicer until the noncompliant servicer comes back into compliance." Interested parties disagree, however, whether ED uses these contractual provisions with sufficient frequency and diligence to effectively punish and deter servicer misconduct.

Role of the Consumer Financial Protection Bureau

In addition to ED's own oversight of its servicing relationships, the Consumer Financial Protection Bureau (CFPB) is another federal agency that possesses certain authorities as to federal student loan servicers. Pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act, the CFPB may exercise supervisory authority over certain nonbank "larger participants" in consumer financial product or service markets that it chooses to define by rule. In 2013, the CFPB exercised this authority to define larger participants in the student loan servicing market. Pursuant to the rule, the CFPB has supervisory authority over student loan servicers servicing more than 1 million accounts. The purposes of CFPB supervision include assessing compliance with consumer financial protection laws and detecting risks to consumers and consumer financial markets. By statute, the CFPB may conduct examinations as well as request information from supervised entities. In addition to its supervisory authority, the CFPB may bring enforcement actions against student loan servicers. In January 2017, for instance, the CFPB sued one of the largest federal student loan servicers, Navient Corporation. As of the date of this report, the case currently remains pending.

Notably, questions have arisen regarding the relationship between the CFPB and ED. In the early 2010s, the two agencies entered into Memoranda of Understanding (MOUs) (1) providing for interagency sharing of information pertaining to, among other things, complaints about student loan servicers and (2) coordinating supervisory and oversight activities pertaining to student loans. However, ED terminated these MOUs in 2017. Among its reasons for terminating the MOUs, ED asserted that the CFPB had "unilaterally expand[ed] its oversight role to include the Department's contracted federal loan servicers" in derogation of ED's claimed "full oversight responsibility for federal student loans." The CFPB further represented to Congress in April 2019 that "student loan servicers have declined to produce information requested by the [CFPB] for supervisory examinations related to" FDLP and FFELP loans since 2017.

As described below, some claim that the aforementioned federal requirements and oversight mechanisms have not deterred federal student loan servicers from engaging in misconduct.

Some, for instance, have accused federal student loan servicers of steering borrowers toward forbearance when participating in an IDR plan would be more beneficial for the borrower. Forbearance is a way for a borrower who encounters short-term financial hardship to obtain temporary relief from his obligation to repay a federal student loan. Forbearance allows the borrower to either

temporarily cease making student loan payments; temporarily make smaller student loan payments; or extend the deadline by which the borrower must make payments.

Interest, however, typically continues to accrue on the loan during the forbearance period, which is then capitalizedâthat is, added to the loan principal âwhen the forbearance period concludes. Thus, for borrowers experiencing long -term financial hardship, this interest accrual and capitalization may render forbearance less advantageous than participation in an IDR plan, the latter of which allows borrowers to make reduced monthly payments based on their income and offers them the prospect of obtaining loan forgiveness after making such payments over a specified period of years.

Some allege that certain servicers have systematically encouraged borrowers to enter into forbearance rather than participate in IDR plans that would be more advantageous for the borrower. According to critics, servicers have a financial incentive to steer borrowers into forbearance because enrolling a borrower in an IDR plan requires the servicer to expend more resources than steering the borrower toward forbearance. Representatives from the servicing industry, however, deny that servicers engage in forbearance steering and assert that servicers in fact earn less money when borrowers enter forbearance.

Some have also accused servicers of failing to provide critical information to student loan borrowers regarding the income recertification process a borrower must complete to remain in an IDR plan. Because, as noted above, a borrower's monthly payments under an IDR plan depend on the borrower's income, borrowers enrolled in IDR plans must recertify their income and family size each year. A borrower who does not comply with this annual recertification requirement may experience an increase in both his monthly loan payments and his total loan balance. Critics have accused some servicers of failing to "advise borrowers of the negative consequences of failing to submit timely, complete, and correct recertifications to renew borrowers' IDR plans."

Some borrowers also allege that federal student loan servicers misinformed them about their eligibility for loan forgiveness under federal law. Subject to various conditions, the Public Service Loan Forgiveness (PSLF) program affords loan forgiveness to borrowers who make 10 years of monthly loan payments while employed in a public service job. Critically, however, only loans issued under the FDLP qualify for the PSLF program. Some borrowers claim that they relied to their detriment on their servicers' representations that they qualified for forgiveness under the PSLF program, only to later learn that they were in fact ineligible because their student loans were non-FDLP loans, such as FFELP loans.

State Laws Regulating Servicers of Federal Student Loans

Significantly, the HEA does not provide litigants with a private right of actionâthat is, the HEA does not authorize borrowers to directly pursue civil litigation against servicers of federal student loans. Instead, only the Secretary may enforce the HEA. States, however, have developed their own laws empowering entities other than the federal governmentâsuch as state officials or individual borrowersâto pursue legal action against servicers. These state laws fall into two broad categories: (1) statutes that specifically target servicers for regulation and (2) statutes and common law causes of action that apply more generally to a broad range of entities, including servicers of federal student loans.

State Laws Governing Student Loan Servicers Specifically

First, several states have recently enacted legislation that specifically imposes legal requirements on federal student loan servicers beyond what federal law requires. Because the specifics of each statute vary from state to state, the following subsections of this report survey the most significant similarities and differences between the various state servicing laws.

Some state servicing statutes, for instance, prohibit student loan servicers from operating within the state's boundaries unless they maintain an active servicing license issued by the state. A servicer that operates in one of these states without a license is subject to monetary penalties. These statutes also typically provide that the state may revoke a servicer's licenseâand thereby preclude the servicer from servicing loans within the stateâif the servicer engages in specified acts of misconduct. For example, the District of Columbia's servicer licensing statute states that the Commissioner of the District of Columbia Department of Insurance, Securities, and Banking "may revoke" a student loan servicing license "if, after notice and a hearing, the Commissioner finds that the licensee has" "[d]emonstrated incompetency or untrustworthiness to act as a licensee" or "[c]ommitted any fraudulent acts, engaged in any dishonest activities, or made any misrepresentation in any business transaction." Notably, some of these state licensing statutes contain provisions that appear intended to mitigate potential interference with the federal government and the servicers with which it contracts. For example, New York's servicing statute, which becomes effective on October 9, 2019, will provide that entities hired by ED to service federal student loans will automatically be deemed licensed to service those loans, without the need to submit a license application and otherwise meet the prerequisites for licensure. However, the New York statute will still require federal student loan servicers to comply with many of the statute's other requirements. Several other states, including Colorado and Maine, have likewise enacted similar laws allowing for automatic licensure for federal student loan servicers.

Some state statutes designate a student loan ombudsperson to conduct oversight of servicers' operations, review and attempt to resolve borrowers' complaints about student loan servicers, and otherwise assist and educate borrowers with the loan servicing process. Some of these statutes contemplate that if the ombudsperson discovers that a servicer is engaging in unlawful conduct, he may refer that servicer to the responsible state agency for civil enforcement proceedings or even criminal prosecution.

In response to allegations that some federal student loan servicers have steered borrowers toward forbearance instead of an IDR program, some states have also enacted laws requiring servicers to evaluate the borrower's eligibility for IDR plans before placing the borrower in forbearance. Relatedly, at least one state prohibits servicers "from implementing any compensation plan that has the intended or actual effect of incentivizing a repayment specialist to violate" applicable servicing regulations "or any other measure that encourages undue haste or lack of quality."

Similarly, in response to allegations that servicers have failed to provide borrowers with key information about income recertification, at least one state requires servicers to "disclose the date that a borrower's [IDR] plan certification will expire and the consequences to the borrower for failing to recertify by the date, including the new repayment amount."

A few state statutes also attempt to address concerns that some servicers have misinformed borrowers regarding their eligibility for loan forgiveness programs, such as the PSLF. The State of Washington, for instance, makes it unlawful to "[m]isrepresent or omit any material information" about "the availability of loan discharge or forgiveness options."

A number of states have also enacted statutory provisions to regulate various other aspects of servicers' operations. For instance, some state statutes purport to require servicers to acknowledge and respond to borrower complaints and requests within a specified time frame. Several statutes also impose recordkeeping or annual reporting requirements upon servicers. Additionally, some laws require servicers to inform the borrower if the identity or address of the party to whom the borrower must send payments or communications changes.

There are a host of different remedies for violating state servicing laws. Some states, for instance, have authorized borrowers to pursue a private cause of action against a servicer who violates the state's servicing laws. A Maine statute that becomes effective January 1, 2020, for example, will authorize borrowers to recover compensatory, treble, and punitive damagesâas well as costs and attorney's feesâfrom servicers who violate the statute's prohibitions. As an alternative to enforcement by private litigants, some state statutes authorize the government to (1) levy fines or penalties against servicers who commit specified acts or omissions or (2) sue servicers who violate the state's servicing laws. Some state servicing statutes explicitly contemplate enforcement by both individual borrowers and the state government alike.

Whereas the aforementioned provisions impose servicing requirements that go beyond federal law, some state statutes also incorporate existing federal servicing standards by reference and thereby provide state law remedies for alleged violations of federal requirements. A Connecticut statute, for instance, provides that in addition to complying with all requirements imposed by Connecticut law, a student loan servicer must also "comply with all applicable federal laws and regulations relating to student loan servicing." "[A] violation of any such federal law or regulation shall be deemed a violation of" Connecticut law "and a basis upon which the [Connecticut Banking Commissioner] may take enforcement action" against a noncompliant servicer.

In addition to these statutes that specifically purport to regulate student loan servicers, servicers may also be bound by a state's laws of general applicability. For example, many states have enacted consumer protection statutes that purport to apply to various entities and prohibit an array of activities that state legislatures have deemed deceptive or unfair to consumers. As explained below, some borrowers and states have invoked these consumer protection statutes in civil lawsuits against servicers challenging various forms of alleged misconduct. Additionally, state courts typically recognize common law causes of action for acts like fraud, negligent or fraudulent misrepresentation, breach of fiduciary duty, negligence, unjust enrichment, tortious interference, and breach of contract. Some borrowers have likewise invoked (or tried to invoke) these common law doctrines against servicers allegedly engaged in misconduct.

Preemption and the Interaction of Federal and State Servicing Laws

With both federal and state laws coexisting in the realm of federal student loan servicing regulations, questions of federal preemptionâthat is, questions regarding whether federal law in a given area displaces or overrides state laws in that areaâhave arisen.

Under case law interpreting the Constitution's Supremacy Clause, federal law can preempt conflicting state law in two central ways. First, statutory language that express ly addresses the scope of a law's preemptive effect, such as the express preemption clause in 20 U.S.C. Â§Â 1098g, may be the basis to conclude that Congress intended federal law to supersede certain state laws. Second, even if a statute is silent as to Congress's preemptive intent, implied preemption principles can also displace state law. A statute can implicitly preempt state law where (1) the scheme of federal regulation is so pervasive, or the federal interest is so dominant, that it can be presumed that Congress intended to supplant all state laws in a particular area (also known as "field preemption"); or (2) the state law conflicts with federal law by either making it impossible to simultaneously comply with both laws or by frustrating the purposes and objectives of the federal law (also known as "conflict preemption"). For each type of preemption, congressional intent is the touchstone of courts' analyses. Influencing the preemption analysis, courts have, at times, employed a "presumption against preemption," meaning that they begin with an assumption that Congress did not intend to displace state law, particularly in areas falling within the traditional police powers of the states.

Invoking several of these principles of federal preemption, in March 2018 ED announced its own position on the issueâthat is, that federal law preempts a wide range of state laws that regulate federal student loan servicers. Significantly, ED did not promulgate this interpretation through notice-and-comment rulemaking; it instead published its interpretation in the Federal Register as an informal guidance document. Among other things, the ED interpretation claims that federal law displaces

state laws that "impose regulatory requirements on servicing," such as laws that "impose deadlines on servicers for responding to borrower inquiries" or "require specific procedures to resolve borrower disputes"; state regulations "requiring licensure of servicers" of certain federal student loans; and state requirements concerning what servicers must disclose to borrowers.

ED appears to ground its interpretation in several preemption theories, including conflict preemption (i.e., that state servicing laws allegedly impede Congress's objective of establishing uniform federal loan servicing standards) and field preemption (i.e., that existing federal regulation is comprehensive and adequate, leaving no role for additional state regulation). ED also relies on express preemption principles, arguing that 20 U.S.C. Â§ 1098g's preemption provisionâstating that "[l]oans made, insured, or guaranteed pursuant to a program authorized by Title IV of the [HEA] shall not be subject to any disclosure requirements of any State law"âbroadly bars states from imposing disclosure requirements. ED "interprets the term 'disclosure requirements' under section 1098g . . . to encompass" not only written disclosures, but also "informal or non-written communications to borrowers." In addition to issuing this interpretation, ED has also submitted filings in several cases , asking courts to dismiss lawsuits against student loan servicers on preemption grounds or otherwise narrow or invalidate state regulations.

ED's interpretation and its litigation position have fueled the debate between states and plaintiff borrowers on one sideâwho claim that state servicing statutes may harmoniously exist alongside federal laws and policiesâand ED and federal student loan servicers on the other, who claim that those state regulations irreconcilably conflict with supreme federal law. Federal courts addressing these disputes, as discussed below, have analyzed the applicability of field preemption, conflict preemption, and express preemption to state student loan servicing laws and state law claims against federal student loan servicers. In doing so, the courts have afforded varying levels of weight to ED's interpretation in conducting their preemption analyses.

Courts have somewhat readily concluded that the HEA does not occupy the field of federal student loan servicing regulation. As an initial matter, several federal appellate courts over the past 25 yearsâin analyzing different legal contexts in the realm of higher educationâhave held that the HEA does not have field preemptive effect more generally. For example, in one such case involving state law negligence claims against national school accrediting agencies (which ED approves pursuant to the HEA), the Ninth Circuit concluded that Congress, in enacting the HEA, "expected state law to operate in much of the field in which it was legislating." Although courts have recognized that the HEA is comprehensive, they have also noted that a regulatory regime's comprehensiveness on its own does not necessarily result in field preemption. Moreover, courts have observed that scattered throughout the HEA are several express preemption provisions, which explicitly foreclose certain state lawsâsuch as state usury, garnishment, and, with respect to Section 1098g, disclosure laws. Such explicit preemption provisions, courts have reasoned, would not be necessary if Congress had intended to simply supplant all state laws.

When it comes to student loan servicing specifically, courts have uniformly rejected the argument that in the HEA Congress intended for federal regulation of federal student loan servicers to be an exclusive field. The HEA provides ED with the authority to contract with student loan servicers and to "establish minimum standards" governing those servicers' management and accountability. The district court in Student Loan Servicing Alliance v. District of Columbia , for example, concluded that this language merely sets a federal regulatory "floor," without foreclosing supplemental regulation from the states. The servicers in Student Loan Servicing Alliance further raised the argument that the federal government has a dominant interest in regulating federal student loan servicing that would merit field preemptionâparticularly because, with the discontinuation of the FFELP, the federal government now makes over 90% of new student loans through the FDLP. The servicers argued, accordingly, that the federal government has a unique interest in protecting its rights under its servicing contracts for these loans. However, in weighing the federal interests against the "compelling" interest of states in protecting their consumers, the Student Loan Servicing Alliance court concluded that the federal interest was not dominant enough to preclude state regulation.

Although field preemption arguments have not thus far posed a hurdle to state student loan servicing regulation, the federal district court in Student Loan Servicing Alliance recently invalidated significant portions of the District of Columbia's student loan servicing law under conflict preemption principles. In its student loan servicing law passed in 2016, the District of Columbia (DC) required student loan servicers to obtain a license from DC and adhere to other substantive regulations and standards of conduct. While one of the primary points raised in ED's Interpretation, as discussed above, was that this type of state licensing scheme conflicted with federal law, the court determined that it did not have to give ED's Interpretation any deference. Rather, the court concluded that the ED Interpretation consisted of informal agency guidance that was insufficiently "thorough, consistent, and persuasive."

Yet, in performing its own independent analysis, the district court still held that DC's licensing scheme posed an obstacle to the federal law's underlying purpose by undermining ED's authorityâprovided for in the HEAâto select servicers for federal student loans. The court relied on a line of prior federal cases arising in different legal contexts that preempted state laws' impeding the federal government's ability to contract. The court reasoned that the DC law did so by effectively "second-guess ing " the federal government's decisions to contract with a given loan servicer. The court's reasoning applied to FDLP loans and government-owned FFELP loans (e.g., those that ED purchased under ECASLA) , for which ED makes servicer contracting decisions under the HEA. The court held, however, that federal law did not preempt state regulations of servicers of outstanding commercial FFELP loans, where private lenders own and decide whether to contract with student loan servicers and the federal government acts merely as a reinsurer or a guarantor.

Beyond the Student Loan Servicing Alliance case and its preemption of DC's licensing requirement for federal student loan servicers, however, courts have generally declined to find conflict preemption in suits brought against servicers for misrepresentations under state laws of general applicability. The main argument that federal student loan servicers have raised in this context is that plaintiffs' ability to sue under state law poses an obstacle to the HEA's objective of providing uniformity in federal student loan servicing regulation, subjecting servicers instead to actions under the laws of 50 different states and DC. However, uniformity is not a stated goal of the HEA. While certain cases have concluded that uniformity is one of the statute's purposes (albeit in arguably distinguishable contexts), other courts have declined to reach that result. Courts have also reasoned that even if uniformity were an objective of the HEA, it does not follow that enforcing state laws prohibiting deceptive conduct would serve as an obstacle to uniformity in the HEA's standards because "uniformity in setting . . . standard parameters for the federal student loan programs is not harmed by prohibiting unfair or deceptive conduct in operating those programs. Moreover, as several courts have noted, a broad reading of servicers' uniformity argument would in effect be akin to a finding of HEA field preemption, which courts have consistently declined to recognize.

Courts have also considered whether the Supreme Court's holding in Boyle v. United Technologies Corp . prevents the states from regulating activities that servicers perform under contracts with the federal government. Boyle held that plaintiffs could not pursue state law claims against federal contractors when allowing such claims to proceed would either create "a 'significant conflict'" with "an identifiable 'federal policy or interest'" or "'frustrate specific objectives' of federal legislation." In the 2019 case of Nelson v. Great Lakes Educational Loan Services, Inc. , for example, the Seventh Circuit determinedâalbeit with little elaborationâthat allowing a borrower to pursue state law misrepresentation claims against a servicer would not impermissibly conflict with federal interests or objectives.

Express preemption arguments in recent federal student loan servicing cases have centered on the preemption clause in Section 1098g of the HEA. Specifically, courts have grappled with whether the preemptive language in Section 1098gâwhich prohibits states from imposing "disclosure requirements" regarding federal student loansâprecludes suits against servicers brought under state law for misrepresentations or misleading communications made to federal student loan borrowers.

Allegations in this category of lawsuits primarily include forbearance steering and misstatements regarding loan forgiveness eligibility, with the allegedly false or misleading statements in many cases being made over the telephone by the servicers' call center representatives. Specifically, some plaintiffs claim that they were "steered" toward placing their loans into forbearance rather than being informed of other options or enrolled in an IDR plan that may have been more beneficial in the long termâalleging that forbearance was simply a faster and less burdensome process for the servicer. Other plaintiffs recount, for example, being assured that they were on track to benefit from the PSLF program when that was not the case, thereby preventing them from taking remedial measures. Plaintiffs in these lawsuitsâwhich have included both federal student loan borrowers and state attorneys generalâhave brought state law tort claims or claims under state consumer protection statutes of general applicability. The main question at issue has been whether enforcing the state's law would require the servicers in these cases to make additional or different "disclosures" under Section 1098g.

Most federal courts considering this question in cases based on these types of allegations have held that Section 1098g does not preempt state law. These courts have allowed the students' lawsuits to proceed, viewing their claims as involving affirmative misrepresentations or otherwise deceptive conduct, which the courts distinguished from the mere failure to provide "disclosures" under Section 1098g. For example, in Pennsylvania v. Navient Corp. , a federal district court in Pennsylvania ruled that the HEA did not preempt the plaintiff's state law claims regarding forbearance steering. The court reasoned that the defendant's argument went "too far" by framing the plaintiff's claim as one for lack of disclosure, rather than a claim concerning unfair and deceptive conduct subject to the state consumer protection statute.

A federal district court in Florida in Lawson-Ross v. Great Lakes Higher Education Corp. , however, reached a different conclusion as to express preemption in 2018. The Lawson-Ross plaintiffs alleged that the defendant servicer falsely assured them that they were on track to benefit from PSLF (when they were not in fact eligible for the program), in violation of a Florida consumer protection statute and several state common law duties. The court concluded, however, that federal regulations already prescribe the information that must be provided to federal student loan borrowers, so that the plaintiffs' state law claims would essentially impose additional disclosure requirements on the servicer. Even though the plaintiffs argued that they alleged that the servicer had made an affirmative misrepresentation , the court construed the plaintiffs' claim as one for the servicer's failure to disclose accurate information regarding plaintiffs' eligibility, which it held to be impermissible under Section 1098g. In reaching its conclusion, the Lawson-Ross court afforded Skidmore deference to ED's interpretation after concluding that ED's views on the preemptive effect of federal law were "well-reasoned and sensible."

The Lawson-Ross court, and servicers arguing for preemption in similar cases, also relied for support on a 2010 case from the Ninth Circuit called Chae v. SLM Corp oration . In Chae , students sued a federal student loan servicer challenging certain methods it used to calculate interest, late fees, and repayment dates, claiming that these servicing practices rendered their billing statements, coupon books, and loan applications misleading in violation of a state consumer protection law. The court reasoned that Section 1098g preempted the action, stating that "[a]t bottom, the plaintiffs' misrepresentation claims are improper-disclosure claims" and that "[i]n this context, the state-law prohibition on misrepresenting a business practice 'is merely the converse' of a state-law requirement that alternative disclosures be made." While the Lawson-Ross court extended Chae 's logic to servicers' oral misrepresentations about PSLF eligibility, other courts have distinguished Chae , noting, for example, that Chae involved allegations concerning the misleading nature of written account statements and coupon books (i.e., "highly prescribed standardized forms"), rather than the "affirmative misconduct" and types of misleading communications involved in forbearance steering or PSLF allegations.

The landscape of decisions concerning Section 1098g's preemptive scope is subject to change as further appellate courts begin to address the issue. Notably, appeals in t he Pennsylvania and Lawson-Ross cases are pending. Moreover, the Nelson case, decided by the Seventh Circuit, may be appealed to the U.S. Supreme Court.

Legal debates over the preemptive effect of federal lawâboth within the student loan servicing context and withoutâimplicate a variety of considerations. On the one hand, replacing state law with a single uniform national standard can sometimes be advantageous. When each state remains free to enact its own laws on a given topic, the requirements of those laws may differâperhaps irreconcilablyâfrom jurisdiction to jurisdiction. Preempting those state laws can thereby release regulated parties from the "administrative and financial burden[s]" of learning and complying with the "laws of 50 States." Moreover, freeing federal contractors from the burden of complying with state laws could mitigate the risk of state intrusions upon federal prerogatives. On the other hand, however, when federal law does not go far enough in policing a particular industry, preemption can prevent the states from filling those regulatory gaps with their own laws. Preempting state law may also deprive the states of opportunities to experiment with novel methods of regulating particular industries and behaviors, which might ultimately prove more effective than methods devised by the federal government.

Depending on how Congress weighs these competing considerations, it may enact legislation clarifying or modifying the preemptive effect of federal law in the student loan servicing context. For example, a section of the PROSPER Act introduced in the 115th Congress, if enacted, would have provided that the servicing of student loans under Title IV of the HEA would "not be subject to any law or other requirement of any State or political subdivision of a State with respect to"

"disclosure requirements"; "requirements or restrictions on the content, time, quantity, or frequency of communications with borrowers, endorsers, or references with respect to such loans"; or "any other requirement relating to the servicing . . . of a loan made" under Title IV of the HEA.

Alternatively, if Congress instead intends to limit the preemptive scope of federal law, it could enact a savings clause specifying that federal law does not preempt any state law that imposes more restrictive requirements on federal student loan servicers than federal statutes and regulations. For instance, one section of the Student Loan Borrower Bill of Rights (S. 1354, 116th Cong.)âwhich, among other things, proposes to subject servicers to more expansive federal regulationâexplicitly would not "preempt any provision of State law regarding postsecondary education loans where the State law provides stronger consumer protections."

If Congress ultimately decides to displace state servicing laws, it may consider preempting state law either narrowly or broadly. For instance, a federal statute that displaces state servicing regulations could expressly preempt all state laws that implicate the servicing of federal student loans in any fashion, or it could preempt only specified categories of state statutes (such as servicer licensing requirements) and thereby preserve some regulatory role for the states.

Instead of expressly specifying the preemptive effect and scope of federal laws pertaining to federal student loan servicing, Congress could implicitly preempt state laws by changing the substantive standards governing servicers. Several Members of the 116th Congress have introduced legislation that, if enacted, would clarify or broaden servicers' duties and responsibilities under federal law or subject servicers to increased levels of federal oversight. Depending on their content and scope, new federal laws governing the conduct, obligations, and oversight of federal loan servicers could raise legal questions regarding (1) how those federal standards interact with state servicing laws and (2) the respective roles of federal and state law in regulating federal student loan servicers. The preemptive effect that courts will provide to a given federal law largely depends on the specific statutory text that Congress enacts.

One other substantive change that could affect the preemptive scope of federal law is altering how the HEA is enforced. As discussed, the HEA does not presently create a private right of action; instead, the HEA contemplates that ED alone will enforce the statute's mandates. As noted above, however, some observers claim that ED has not diligently policed the servicers with whom it contracts. If Congress agrees with that assessment, it could expressly empower other entitiesâsuch as states, individual borrowers, or other federal agencies like the CFPBâto wield a greater level of enforcement authority over federal student loan servicers. For instance, granting borrowers or states a private right of action under federal law against contractors that violate federal servicing standards could provide an additional means to deter, correct, and punish alleged servicer misconduct. That said, subjecting servicers to litigation and regulation by multiple entities could increase federal contractors' costs. Rendering servicers answerable to multiple stakeholdersâbe they federal agencies, states, or individual borrowersâmight also undermine the uniformity that some have argued is a central goal of federal student loan servicer regulation, which could in turn undercut arguments that preemption is necessary to preserve the federal government's predominant role in regulating its contractors.

Several bills pending in the 116th Congress propose to subject servicers to increased litigation or regulation by entities other than ED. Section 3 o f the Student Loan Borrower Bill of Rights, for example, would allow individuals to sue federal student loan servicers under the Truth in Lending Act's private right of action provision. By contrast, the CFPB Student Loan Integrity and Transparency Act of 2019 (H.R. 2833, 116th Cong.) would (among other things) (1) require federal student loan servicers to provide the CFPB with any information requested by specified CFPB officials and (2) reinstate the aforementioned MOUs between ED and the CFPB that ED terminated in 2017.

Unless and until Congress specifies the intended preemptive effect of federal servicing laws, however, legal questions regarding preemption in the loan servicing context will be left to the courts to resolve. Depending on their content, the courts' rulings may affect the uniformity of servicing regulations across jurisdictions and the degree and type of oversight to which federal student loan servicers are subject.


DHS Budget Request Analysis: FY2021

Summary: On February 10, 2020, the Donald J. Trump Administration released their budget request for FY2021, including a $75.84 billion budget request for the Department of Homeland Security (DHS).

Summary: DHS is the third largest agency in the federal government in terms of personnel. The appropriations bill that funds itâproviding $70 billion in FY2020âis the seventh largest of the twelve annual funding measures developed by the appropriations committees, and is the only appropriations bill that funds a single agency in its entirety and nothing else.

Summary: This report provides an overview of the FY2021 budget request for the Department of Homeland Security. It provides a component-level overview of the appropriations sought in the FY2021 budget request, putting the requested appropriations in the context of the FY2020 requested and enacted level of appropriations, and noting the primary drivers of changes from the FY2020 enacted level.

Summary: The FY2021 budget request represents the fourth detailed budget proposed by the Trump Administration. It is the earliest release of a budget request by the Trump Administration, and comes 52 days after the enactment of the FY2020 consolidated appropriations measuresâthe longest such gap since the release of the FY2017 request (53 days), and the first since then to include prior-year enacted funding levels as a comparative baseline.

Summary: Some of the major drivers of change in the FY2021 request include

Summary: A $3 billion reduction in border barrier funding through U.S. Customs and Border Protection (CBP) compared to the FY2020 request; A $2.4 billion reduction from the enacted level of funding due to the proposed move of the U.S. Secret Service to the Department of the Treasury; A $709 million increase in requested Transportation Security Administration (TSA) fee revenues; A $9 billion reduction in disaster relief funding through the Federal Emergency Management Agency (FEMA) compared to the FY2020 request; A $986 million increase from the FY2020 requested level for the U.S. Coast Guardâproposing funding $129 million above the enacted level; A $1.1 billion increase from the FY2020 requested level for Immigration and Customs Enforcementâ$2 billion (24%) more than enacted in FY2020; and A $456 million increase for the Transportation Security Administration's budget from the FY2020 requested levelâproposing funding $59 million below the enacted level.

Summary: Six of the seven smallest components by gross budget authority saw their budget requests reduced by at least 5% from the enacted level, and four of those components saw reductions of more than 10%.

Summary: This report will not be updated.

The Department of Homeland Security (DHS) is the third largest agency in the federal government in terms of personnel. The appropriations bill that funds itâproviding $70 billion in FY2020âis the seventh largest of the 12 annual funding measures developed by the appropriations committees, and is the only appropriations bill that funds a single agency in its entirety and nothing else.

This report provides an overview of the FY2021 budget request for the Department of Homeland Security. It provides a component-level overview of the appropriations sought in the FY2021 budget request, putting the requested appropriations in the context of the FY2020 requested and enacted level of appropriations, and noting some of the larger changes in this proposal from those baselines.

To ensure consistency of methodology, the analysis in this report is based on Office of Management and Budget (OMB) data as presented in the FY2020 and FY2021 Budget in Brief for DHS, with supporting information from the DHS congressional budget justifications for FY2021, except where noted. Most other CRS reports rely on Congressional Budget Office (CBO) data, which was not available at the time of publication at a similar level of granularity. Numbers expressed in billions are rounded to the nearest hundredth ($10 million), while numbers expressed in millions are rounded to the nearest million.

None of the FY2020 requested or enacted levels in this bill include supplemental appropriations requested and provided in the wake of the COVID-19 pandemic, as the intent is to analyze the FY2021 annual appropriations request in comparison to the preceding request and ensuing annual appropriation.

The FY2021 budget request represents the fourth detailed budget proposed by the administration of President Donald J. Trump. It is the earliest release of a budget request by the Trump Administration, and comes 52 days after the enactment of the FY2020 consolidated appropriations measuresâthe longest such gap since the release of the FY2017 request (53 days), and the first since then to include prior-year enacted funding levels as a comparative baseline. This allows for easier analysis of the request compared to current funding.

The budget for DHS includes a variety of discretionary and mandatory budget authority. Aside from standard discretionary spending, some of the discretionary spending in the bill is offset by collections of fees, reducing the net effect on the general fund of the Treasury. Some discretionary budget authority is specially designated under the Budget Control Act (BCA), adjusting the statutory limits on discretionary spending to accommodate it. DHS also draws resources from fee revenues and other collections included in the mandatory budget, which are not usually referenced in annual appropriations legislation. However, some mandatory spending items still require an appropriation because there is no dedicated source of funding to meet the government's obligations established in lawâe.g., U.S. Coast Guard (USCG) retirement accounts. Figure 1 shows a breakdown of these different categories from the FY2021 budget request.

Congress and the Administration may differ on how funding for the department is structured; frequently, administrations of both parties have suggested paying for certain activities with fee increases that would require legislative approval. If fees are not increased, additional discretionary appropriations must be provided to fund the planned activities.

Figure 2 compares the structure of the FY2021 budget request to its enacted FY2020 equivalent, as well as the FY2020 request. Significant differences include

In budget authority from discretionary appropriations, a $3 billion reduction in border barrier funding through U.S. Customs and Border Protection (CBP) compared to the FY2020 request; and a $2.4 billion reduction from the enacted level of funding due to the proposed move of the U.S. Secret Service to the Department of the Treasury. In fee-funded discretionary budget authority, a $709 million increase in requested Transportation Security Administration (TSA) fee revenues; and In discretionary budget authority covered by adjustments under the BCA, a $9 billion reduction in disaster relief funding through the Federal Emergency Management Agency (FEMA) compared to the FY2020 request.

Comparing the FY2021 Request to Prior-Year Levels

Table 1 presents for comparison the requested gross budget authority controlled in appropriations legislation for FY2021 for each DHS component, as well as the level requested and enacted for FY2020. This is essentially composed of the first four elements in Figure 1 and Figure 2 .

Four analytical columns on the right side of the table provide comparisons of the FY2021 requested funding levels with the FY2020 requested and enacted levels, indicating dollar and percentage change. Components are listed in order of their total FY2020 enacted gross budget authority. Indented and italicized lines beneath the Coast Guard and Federal Emergency Management Agency entries show the portion of the above amount covered by adjustments for disaster relief and overseas contingency operations, provided for under the BCA. The funding levels in Table 1 include the effects of all elements of the budget tracked in the detail tables accompanying annual appropriations for DHS, except rescissions of prior-year appropriations. While this table compares data developed with the Congressional Budget Office (CBO) scoring methodology and the Office of Management and Budget (OMB) scoring methodology, most of the data compared is identical. Most of the $40 million in scoring differences identified by OMB is the result of $34 million differences in the treatment of fees, transfers and rounding within the CBP budget, with the remainder being the result of differences in rounding across the DHS funding structure.

Table 1 illuminates several shifts within the FY2021 DHS budget request that are not apparent in top-line analysis:

a $986 million increase from the FY2020 requested level for the U.S. Coast Guard; a $1.1 billion increase from the FY2020 requested level for Immigration and Customs Enforcementâ$2 billion (24%) more than enacted in FY2020; a $456 million increase for the Transportation Security Administration's budget from the FY2020 requested level; and a proposed transfer of the Federal Protective Service from the Cybersecurity and Infrastructure Security Agency to the Management Directorate during the FY2020 process, shifting almost $1.6 billion between the components.

Table 1 also illuminates budgetary pressure on DHS's smaller headquarters and support components. With one exceptionâAnalysis and Operationsâthe seven smallest components by gross budget authority saw their budget requests reduced by at least 5% from the enacted level, and four of those components saw reductions of more than 10%.

Under the Common Appropriations Structure (CAS) first implemented with the FY2017 DHS annual appropriation, most DHS discretionary appropriations were rearranged into four uniform categories:

Operations and Supportâgenerally personnel and operational costs (all components have this); Procurement, Construction, and Improvementsâgenerally acquisition and construction (many components have this); Research and Development (TSA, USCG, USSS, CISA, S&T, and CWMD have this in the FY2021 budget request); and Federal Assistance (only FEMA and CWMD have this in the FY2021 budget request).

FEMA's Disaster Relief Fund is a unique discretionary appropriation which was preserved separately, in part due to the history of the high level of public and congressional interest in that particular structure.

The use of the CAS structure allows a quick survey of the level of departmental investment in these broad categories of spending through the appropriations process. A visual representation of this new structure follows in Figure 3 . On the left are the five appropriations categories of the CAS with a black bar representing the requested FY2021 funding levels requested for DHS for each. A sixth catch-all category is included for budget authority associated with the legislation that does not fit the CAS categories. Colored lines flow to the DHS components listed on the right, showing the amount of funding provided through each category to each component.

The Operations and Support appropriation for each component pays for most DHS staffing. Table 2 analyzes changes to DHS staffing, as illuminated by the request's information on positions and full-time equivalents (FTEs) for each component. Appropriations legislation does not explicitly set these levels, so the information is drawn from budget request documents alone.

The first data column indicates the number of positions requested for each component in the FY2021 budget request. The next four columns show the difference between the FY2021 request and the Administration's previous requestâexpressed numerically, then as a percentageâand then shows the same comparison with the FY2020 enacted number of positions as interpreted by the Administration. Another data column shows the number of FTEs, followed by four more analytical columns showing the same comparisons as were run for positions.

The following summaries of the budget requests for DHS components are drawn from a survey of the DHS FY2021 B udget in Brief and the budget justifications for each component. Each begins with a graphic outlining the appropriations requested and enacted for the components in FY2020 and FY2021, followed by some observations on the factors that contribute to the illustrated structure. The appropriations request includes all funding provided through the appropriations measure, regardless of how it is scored: it does not include most mandatory spending, such as programs paid for directly by collected fees that have appropriations in permanent law.

Each component has an Operations and Support appropriation, which includes discretionary funding for pay. A 3.1% civilian pay increase was adopted for 2020, and a 1.0% civilian pay increase has been proposed by the Administration for 2021. Descriptions of each Operations and Support appropriation note the impact of these pay increases and associated increases to component retirement contributions to better illuminate the changes in the level of other operational funding.

Law Enforcement Operational Components (Title II)

The Administration's $15.60 billion appropriations request for CBP was $724 million (4.9%) above the FY2020 enacted level, and $2.55 billion (14.1%) below the level of appropriations originally requested for FY2020. The request includes

$252 million more than enacted for Operations and Support, largely driven by $414 million for pay and retirement cost increases. $161 million was requested for 750 additional border patrol agents and 126 support staff. No additional appropriations were requested for new CBP Officers, who staff ports of entry. $21 million was requested for 300 Border Patrol Processing Coordinators, who are intended to take over non-law enforcement duties currently performed by Border Patrol Agents. The request for Operations and Support includes a new $7 million item for the Southwest Border Wall System Program, intended to maintain newly constructed barriers. $377 million more than enacted for Procurement, Construction, and Improvements. The $2.06 billion request for Border Security Assets and Infrastructure is $552 million more than enacted in annual appropriations for FY2020, and $3.12 billion less than requested in FY2020. The primary driver of this change from the FY2020 request is a reduction of $3.04 billion in construction funding for the border wall system. While the FY2020 Budget-in-Brief cites $182 million for facilities improvements and various investments for technology, aircraft, and vehicles, appropriations not for border barriers were reduced from the FY2020 enacted level of $529 million to $281 million in the request.

Immigration and Customs Enforcement (ICE)

The Administration's $9.93 billion appropriations request for ICE was $1.85 billion (22.9%) above the FY2020 enacted level, and $1.15 billion (13.0%) above the level of appropriations originally requested for FY2020. The request includes

$1.79 billion more than enacted for Operations and Support, largely driven by a 4,636 position (22%) increase requested in personnel funded through appropriations. This increase would include 2,844 law enforcement officers and 1,792 support staff. While all of the primary programs under ICE would receive additional staff, Enforcement and Removal Operations (ERO) would receive 2,792 positions, a 34% increase above the current enacted level (8,201). Homeland Security Investigations (HSI) would receive 1,053 additional personnel, a 12% increase above the current enacted level (8,784). $220 million (12.3%) of the requested increase in Operations and Support appropriations is for pay and retirement increases. $58 million more than enacted for Procurement, Construction, and Improvements. This is $26 million more than the request for FY2020, growth largely driven by a nearly $14 million increase above the FY2020 requested level for Operational Communications and Information Technology. Also included in the Administration's request was $112 million in fee funding from the Immigration Examinations Fee Accountâsimilar to a proposal not approved by Congress for FY2020âwhich would fund 936 current personnel.

Transportation Security Administration (TSA)

The Administration's $4.09 billion net appropriations request for TSA was $890 million (17.9%) below the FY2020 enacted level, and $175 million (4.5%) above the level of appropriations originally requested for FY2020. With the resources from offsetting fees included, the gross discretionary total is for a request of $7.63 billion, $181 million (2.3%) below the FY2020 enacted level, and $334 million (4.6%) above the FY2020 requested level. The request includes

$820 million (16.9%) less than enacted in FY2020 for Operations and Support appropriations, compensated for in large part by $709 million in proposed increases to offsetting collections. Operations and Support cost increases within this amount include $251 million for paying increased pay and retirement costs. $77 million (69.7%) less in discretionary appropriations than enacted in FY2020 for Procurement, Construction, and Improvements; $129 million less in discretionary appropriations than was requested for FY2020. $250 million continues to be provided in mandatory appropriations from the Aviation Security Capital Fund as it has since FY2004. $7 million (28.9%) more than enacted in FY2020 for Research and Development appropriations, on the basis of $8 million for two new projects to improve threat detection at TSA checkpoints.

The Administration's $12.11 billion appropriations request for USCG was $139 million (1.2%) above the FY2020 enacted level, and $986 million (8.9%) above the level of appropriations originally requested for FY2020. The request included

$196 million (2.4%) more than enacted in FY2020 for Operations and Support, $164 million of which is for pay and retirement increases, and increases to allowances for military personnel. For the first time in many years, the costs of Overseas Contingency Operations (OCO) were proposed for inclusion in the base discretionary appropriation for Operations and Support, without designation to adjust the discretionary budget limits to accommodate it. The OCO proposal was for $215 million in FY2021, up $25 million from the FY2020 enacted level. The budget request also included more than $30 million in increases for cyber operations. $135 million (7.6%) less than enacted for Procurement, Construction, and Improvements. Reductions of $130 million (80.7%) for the National Security Cutter program and $240 million (92.3%) for the Fast Response Cutter program were offset by increases of $234 million (75%) for the Offshore Patrol Cutter program and $420 million (311%) for the Polar Security Cutter program, as part of a net increase of $286 million (28.8%) for USCG vessels procurement. $351 million (69.6%) less than enacted was requested for USCG aircraft procurement. $13 million (18.6%) less than enacted was requested for other acquisition programs, and $58 million (28.3%) less than enacted for Shore Facilities and Aids to Navigation. Less than $1 million (6.6%) more than enacted was requested for Research and Development.

The Administration's budget request envisions moving the USSS to the Department of the Treasury. However, the budget is still structured as it would be in DHS, and the numbers are provided here for analytical purposes.

The $2.36 billion appropriations request for USSS was $55 million (2.3%) below the FY2020 enacted level, and $52 million (2.2%) above the level of appropriations originally requested for FY2020. The request included

$26 million (1.1%) less than enacted for Operations and Support, despite $71 million being added for the costs of pay and retirement increases. The primary driver of the decrease was the anticipated reduction of $86 million in costs from the conclusion of the 2020 presidential election cycle. $20 million for 119 additional personnel and $20 million in transition costs for the proposed transition of the USSS back to Treasury also are included in the request. $29 million (42.8%) less than enacted in FY2020 for Procurement, Construction, and Improvements, and less than $1 million (4.2%) less than enacted for Research and Development.

Incident Response and Recovery Operational Components (Title III)

Cybersecurity and Infrastructure Security Agency (CISA)

The Administration's $1.76 billion appropriations request for CISA was $258 million (12.8%) below the FY2020 enacted level, and $150 million (9.3%) above the level of net appropriations originally requested for FY2020. The request included

$128 million (8.2%) less than enacted in FY2020 for Operations and Support, despite $28 million being added for the costs of pay and retirement increases. The reduction is largely driven by the proposal to convert the Chemical Facility Anti-Terrorism and Safety program to a voluntary initiative, reducing program costs by $68 million, and a $34 million reduction in Threat Analysis and Response. $121 million (27.9%) less than enacted in FY2020 for Procurement, Construction, and Improvements, largely driven by a $114 million reduction in Cybersecurity Assets and Infrastructure, $75 million of which is to the National Cybersecurity Protection System. $8 million (55.4%) less than enacted in FY2020 for Research and Development, due to reductions in funding for the Technology Development and Deployment Program and National Infrastructure Simulation and Analysis Center.

Federal Emergency Management Agency (FEMA)

The Administration's $9.36 billion appropriations request for FEMA was $12.92 billion (58.0%) below the FY2020 enacted level, and $8.65 billion (48.0%) below the level of appropriations originally requested for FY2020. The primary driver of this change is a $12.29 billion reduction from the enacted level for the costs of major disasters (a large portion of the resources in the Disaster Relief Fund). If this reduction is set aside, the request is a $628 million reduction from the FY2020 enacted level, and a $364 million increase from the FY2020 request. The request includes

$32 million (2.9%) more than enacted for Operations and Support, $32 million of which is for pay and retirement increases (the combination of other increases and decreases in the account has a net zero effect); $47 million (35.1%) less than enacted for Procurement, Construction, and Improvements, largely due to lower requests for grants management modernization, Mount Weather facilities, and the Center for Domestic Preparedness; $696 million (21.9%) less than enacted for Federal Assistance, largely due to reduction in preparedness grants, the Flood Hazard Mapping and Risk Analysis Program, and elimination of the Emergency Food and Shelter Program; and $12.21 billion (68.4%) less than enacted for the Disaster Relief Fund (DRF). The request for the portion of the DRF that covers major disasters dropped from an enacted level of $17.35 billion to $5.06 billion, a request that is based on the average of the last 10 years obligations for major disasters costing less than $500 million (termed "non-catastrophic disasters"), and spending plans for past disasters costing FEMA more than $500 million (termed "catastrophic disasters"). The portion of the DRF that covers emergencies and other activities increased $82 million (16.1%) to $521 million, largely on the basis of an increase in the 10-year average of those costs, and $15 million for real estate needs associated with FEMA's Recovery Service Centers.

U.S. Citizenship and Immigration Services (USCIS)

The Administration's $119 million appropriations request for USCIS was $14 million (10.4%) below the FY2020 enacted level, and $3 million (2.4%) below the level of appropriations originally requested for FY2020. The request includes

$4 million (3.0%) less for Operations and Support than enacted in FY2020, and $3 million (2.4%) less than requestedâ$2 million in increased pay raise and retirement costs were offset by reduced costs for rent and efficiencies through modernization efforts. The request does not include an appropriations request for Federal Assistance, which received $10 million in the FY2020 enacted DHS appropriations bill for Citizenship and Integration Grants, which the Administration proposes funding through Immigration Examinations Fee revenues. Less than 3% of the USCIS budget is appropriated. The budget request projects more than $4.9 billion in mandatory spending for USCISâ97% of its total budgetâwill be supported by fees in FY2021, up $213 million (4.5%) from FY2020 levels. This overall structure is similar to last year's request.

Federal Law Enforcement Training Centers (FLETC)

The Administration's $331 million appropriations request for FLETC was $20 million (5.6%) below the FY2020 enacted level, and $19 million (5.5%) below the level of appropriations originally requested for FY2020. FLETC also anticipates receiving $211 million (up $25 million, or 13.4%) in reimbursements for training and facilities use from those it serves. The request includes

$12 million (4.3%) more than was enacted in FY2020 for Operations and Support, $7 million of which is for increased pay and retirement costs; $32 million (55.3%) less than was enacted in FY2020 for Procurement, Construction, and Improvements, due to completion of funding for projects in the FY2020 enacted appropriation. The FY2021 budget includes $26 million for the purchase of two dorms it currently leases.

Science and Technology Directorate (S&T)

The Administration's $644 million appropriations request for the S&T Directorate was $94 million (12.7%) below the FY2020 enacted level, and $62 million (10.6%) above the level of appropriations originally requested for FY2020. The request includes

$30 million (9.6%) less than the enacted level for the Operations and Support appropriation, largely due to a $35 million (24.6%) reduction in mission support activities; Only $3 million of the Operations and Support request is for pay and retirement cost increases. $19 million in the Procurement, Construction, and Improvements appropriation (which had no funding requested or provided in FY2020) for costs associated with the closure and sale of the Plum Island Animal Disease Center; and $82 million (19.5%) less than enacted for the Research and Development appropriation, due to a $64 million (16.6%) reduction in in-house research activities and a $19 million (46.3%) reduction in university-based research.

Countering Weapons of Mass Destruction Office (CWMD)

The Administration's $377 million appropriations request for CWMD was $55 million (12.8%) below the FY2020 enacted level, and $46 million (10.9%) below the level of appropriations originally requested for FY2020. The request includes

$7 million (3.7%) less than the enacted level for the Operations and Support appropriation, $40 million (18.7%) less than was requested for FY2020; This reduction is driven by a $5 million (40.7%) reduction in funding for the National Biosurveillance Integration Center's biosurveillance and early warning support on biological attacks and emerging pandemics, and an almost $3 million reduction in technical forensics operational readiness, which the request says is being funded by the National Nuclear Security Administration. $1 million (0.4%) was requested for covering the increased pay and retirement costs. $32 million (26.5%) less than the enacted level for the Procurement, Construction, and Improvements appropriation, largely driven by reductions to the Radiation Portal Monitor Replacement Program ($46 million, 68.1%) and Common Viewer program ($8 million, zeroed out); $11 million (15.9%) less than the enacted level for the Research and Development appropriation, largely driven by a $7 million reduction in Technical Forensics and a $9 million (27.3%) reduction in detection capability activity; and $6 million (9.3%) less than the enacted level for the Federal Assistance appropriation, largely due to an $11 million (44.6%) reduction in funding for the Securing the Cities program.

Office of the Secretary and Executive Management (OSEM)

The Administration's $150 million appropriations request for OSEM was $28 million (15.9%) below the FY2020 enacted level, and $9 million (6.4%) above the level of appropriations originally requested for FY2020. The request includes

$18 million (10.9%) less than enacted level for the Operations and Support appropriation, largely driven by a $15 million (25.9%) reduction in operations and engagement activities. The request included $5 million to pay for increased salary and retirement costs. $10 million less than the enacted level for the Federal Assistance program, as the targeted violence grants funded in this component in FY2020 are funded in the FEMA request for FY2021.

Departmental Management Directorate (MD)

The Administration's $1.76 billion appropriations request for MD was $198 million (12.7%) above the FY2020 enacted level, and $204 million (13.1%) above the level of appropriations originally requested for FY2020. The request includes

$220 million (18.6%) more than was enacted in FY2020 for the Operations and Support appropriation, $186 million of which is net transfers as a result of DHS transitioning away from using a working capital fund; Also included in this appropriations request is a $13 million increase to cover increased pay and retirement costs. Of the remaining changes, most of the net increase is due to investments in information technology and cybersecurity. $22 million (5.7%) less than was enacted in FY2020 for the Procurement, Construction, and Improvement appropriation. Of the $359 million requested, over $200 million was for investments in DHS headquarters facilities, including St. Elizabeths; Mount Weather; and consolidation of headquarters leases.

The Administration's $313 million appropriations request for A&O was $28 million (10.0%) above the FY2020 enacted level, and $36 million (13.0%) above the level of appropriations originally requested for FY2020. Most of the details of the A&O budget request are classified. However, the request included a $6 million increase to cover increases in pay and retirement costs.

The Administration's $178 million appropriations request for the OIG was $12 million (6.5%) below the FY2020 enacted level, and $8 million (4.5%) above the level of appropriations originally requested for FY2020.

$5 million in additional funding is requested to cover increased pay and retirement costs. The budget request includes a reduction of more than $15 million (16.5%) in OIG audits and investigations. The budget justification notes that the OIG submitted a funding request of $196 million, which the OIG states "is essential to sustain FY 2020 operations into FY 2021 at the FY 2020 appropriated level and maintain oversight capacity commensurate with the Department's growth in several high-risk areas, including frontline security and infrastructure along the southern border, cybersecurity defenses, major acquisitions and investments, and accelerated hiring of law enforcement personnel."

Administrative provisions are included at the end of each title of the DHS appropriations bill and generally provide direction to a single component within that title. In the FY2021 budget request, the Administration proposed a number of changes from the FY2020 enacted DHS appropriations measure, including

Deleting Â§106, which established the Ombudsman for Immigration Detention.

Adding a new section related to the proposed transfer of the Secret Service to the Department of the Treasury, which would allow for funds from the DHS OIG to be transferred to the Treasury OIG.

barred any new land border crossing fees; required an expenditure plan be submitted to Congress for the CBP Procurement, Construction, and Improvements appropriation before any of that appropriation could be obligated; constrained the use of the CBP Procurement, Construction, and Improvements appropriation, including limiting the types and locations of border barriers that could be constructed and requiring reporting to the appropriations committees on (1) the plans for barrier construction, (2) changes in barrier construction priorities, and (3) consultation with affected local communities, as well as an annual update to risk-based plan for improving border security; barred construction of barriers in certain locations; required statutory authorization for reducing vetting operations at the CBP's National Targeting Center; and directed certain CBP Operations and Support appropriations to humanitarian needs at the border and addressing health, life, and safety issues at Border Patrol facilities. Deleting Â§216, which barred DHS from detaining or removing a sponsor, potential sponsor or the family member of sponsor or potential sponsor of an unaccompanied alien child on the basis of information from the Department of Health and Human Services, unless a background check reveals certain felony convictions or association with prostitution or child labor violators; Deleting Â§227, which provided flexibility in allocating Coast Guard Overseas Contingency Operations funding; Deleting Â§229, which bars the use of funds to conduct or implement an A-76 competition for privatizing activities at the National Vessel Documentation Center; Deleting Â§231-Â§232, which were changes to permanent law (and thus no longer required inclusion in the bill) that allowed for continued death gratuity payments for the USCG if appropriated funding was unavailable for obligation; and categorized amounts credited to the Coast Guard Housing Fund as offsetting receipts. Deleting Â§233-Â§236, which allowed the Secret Service to obligate funds in advance of reimbursement by other federal agencies for training expenses; barred the Secret Service from protecting agency heads other than the secretary of DHS, unless an agreement is reached with DHS to do so on a reimbursable basis; allowed the Secret Service to reprogram up to $15 million in its Operation and Support appropriation; and allowed flexibility for Secret Service employees on protective missions to pay for travel without regard to limitations on costs, with prior notification to the appropriations committees. Adding Â§308, which requires a 25% nonfederal contribution for projects funded under the State Homeland Security Grant Program, Urban Area Security Initiative, Public Transportation Security Assistance, Railroad Security Assistance, and Over-the-Road Bus Security Assistance programsâcurrently there is no such cost share; and Adding Â§309, which would allow a transfer 1% of funding provided for the State Homeland Security Grant Program and Urban Area Security Initiative to FEMA Operations and Support for evaluations of the effectiveness of those programs.

General provisions are included in the last title of the DHS appropriations bill and generally provide direction to the entire department. They include rescissions or additional budget authority in some cases. In the FY2021 budget request, the Administration proposed relatively few substantive changes to the general provisions enacted in the FY2020 bill. They sought to:

Remove Â§530, which provided $41 million for reimbursement of extraordinary law enforcement costs for protecting the residence of the President; Remove Â§532, which required that DHS allow Members of Congress and their designated staff access to DHS facilities housing aliens for oversight purposes; and Remove Â§537-Â§540, which rescinded prior year appropriations from various accounts.