Interim Rule Document

38076

Federal Register / Vol. 71, No. 128 / Wednesday, July 5, 2006 / Rules and Regulations

DEPARTMENT OF JUSTICE
28 CFR Part 58
[Docket No. EOUST 100]
RIN 1105–AB17

Application Procedures and Criteria for
Approval of Nonprofit Budget and
Credit Counseling Agencies and
Approval of Providers of a Personal
Financial Management Instructional
Course by United States Trustees
Executive Office for United
States Trustees, Justice.
ACTION: Interim final rule.

jlentini on PROD1PC65 with RULES

AGENCY:

SUMMARY: This interim final rule
(‘‘rule’’) sets forth the proposed
application procedures to be used by
United States Trustees for approval of
nonprofit budget and credit counseling
agencies (‘‘agencies’’) and for approval
of providers of a personal financial
management instructional course
(‘‘providers’’) under the Bankruptcy
Abuse Prevention and Consumer
Protection Act of 2005 (‘‘BAPCPA’’).
Under the BAPCPA, individual debtors
are required to consult with approved
agencies to receive a briefing on the
opportunities for credit counseling and
a budget analysis, within 180 days
before filing for bankruptcy relief, and
to consult with approved providers of a
personal financial management
instructional course, after filing for
relief, before receiving a discharge of
their debts. The BAPCPA also sets forth
procedures and standards for the United
States Trustees to use in approving
agencies and providers for subsequent
inclusion on a publicly available agency
list and provider list in each federal
judicial district where they are deemed
qualified to counsel or instruct
individuals.
DATES: Effective Date: July 5, 2006.
Comment Date: Comments due by
September 5, 2006.
ADDRESSES: Comments on the rule
should be submitted by e-mail to
[email protected], by
telefax to 202–514–4100, or by postal
mail to: Executive Office for United
States Trustees (‘‘EOUST’’), Credit
Counseling Application Processing, 20
Massachusetts Ave, 8th floor,
Washington, DC 20530. To ensure
proper handling, please reference
EOUST Docket No. 100 on your
correspondence. You may view an
electronic version of this proposed rule
at www.regulations.gov. You may also
comment via the Internet using the
www.regulations.gov comment form for
this regulation. When submitting
comments electronically you must

VerDate Aug<31>2005

19:23 Jul 03, 2006

Jkt 208001

include EOUST Docket No. 100 in the
subject box. Comments filed after the
end of the comment period may be
considered to the extent feasible.
Comments received are public records.
SUPPLEMENTARY INFORMATION: This rule
implements the Bankruptcy Abuse
Prevention and Consumer Protection
Act of 2005 (enacted April 20, 2005),
Public Law 109–8, sections 106(a), 119
Stat. 37 (codified at 11 U.S.C. 109(h))
and 106(e)(1), 119 Stat. 38 (codified at
11 U.S.C. 111(a)–(e)). Under the
BAPCPA, which became effective on
October 17, 2005, individual debtors are
required to consult with approved
agencies to receive a briefing on the
opportunities for credit counseling and
a budget analysis, within 180 days
before filing for bankruptcy relief. 11
U.S.C. 109(h)(1). Debtors are also
required to participate in a personal
financial management instructional
course with approved providers to
receive instruction on how to establish
and maintain a budget, how to manage
one’s money, and how to use credit
wisely. The debtor will not be granted
a discharge if this instruction is not
obtained. 11 U.S.C. 727(a)(11),
1328(g)(1), 1141(d)(3)(c).
11 U.S.C. 111(b) provides that, in
applicable jurisdictions, the United
States Trustee shall only approve an
agency or provider after the United
States Trustee has thoroughly reviewed,
under the standards set forth in
BAPCPA, the qualifications of the
agency or provider and the services that
will be offered by such agency or
provider, and has determined that such
agency or provider fully satisfies the
standards. The United States Trustee
may require such agency or provider
that has sought approval to provide
information with respect to such review.
According to the new Bankruptcy
Code provision, 11 U.S.C. 111, the
United States Trustee shall only
approve an agency that demonstrates
that it will provide qualified counselors,
maintain adequate provision for
safekeeping and payment of client
funds, provide adequate counseling
with respect to client credit problems,
and deal responsibly and effectively
with other matters relating to the
quality, effectiveness, and financial
security of the services it provides.
Under 11 U.S.C. 111, the United
States Trustee shall only approve a
provider that demonstrates that it will
provide trained personnel with
adequate experience and training in
providing effective instruction and
services, provide learning materials and
teaching methodologies designed to
assist debtors in understanding personal

PO 00000

Frm 00024

Fmt 4700

Sfmt 4700

financial management, provide adequate
facilities situated in reasonably
convenient locations where the
instructional course is offered, except
that such facilities may include the
provision of such instructional course
by telephone or through the Internet, if
such instructional course is effective,
and prepare and retain reasonable
records to permit evaluation of the
effectiveness of such instructional
course by the EOUST and the United
States Trustee.
As Congress stated in its conference
report, ‘‘the purpose of the bill is to
improve bankruptcy law and practice by
restoring personal responsibility and
integrity in the bankruptcy system and
ensure that the system is fair for both
debtors and creditors * * * the bill
requires debtors to receive credit
counseling before they can be eligible
for bankruptcy relief so that they will
make an informed choice about
bankruptcy, its alternatives, and
consequences * * * the bill also
penalizes a creditor who unreasonably
refuses to negotiate a pre-bankruptcy
debt repayment plan with a debtor.’’
H.R. Rep. 109–31, pt. 1 at 2.
By submitting an application, an
agency or provider is declaring under
penalty of perjury that the information
on the application is true, correct,
accurate, and complete.
The remaining requirements set forth
in the amending regulatory text are selfexplanatory. In determining whether an
agency or provider meets the
qualifications for approval and
inclusion on the approved list, the
EOUST and United States Trustee may
rely on the application submitted by the
agency or provider.
The application form that credit
counseling agencies must use to apply
for approval under these regulations is
EOUST–CC1, ‘‘Application for Approval
as a Nonprofit Budget and Credit
Counseling Agency,’’ which is available
on the EOUST’s Web site along with the
instructions. The application form that
providers of an instructional course
must use to apply for approval under
these regulations is EOUST–DE1,
‘‘Application for Approval of Provider of
a Personal Financial Management
Instructional Course,’’ which is also
available on EOUST’s Web site along
with the instructions. Completed and
signed credit counseling application
forms should be mailed to the EOUST,
Credit Counseling Application
Processing, 20 Massachusetts Ave., 8th
Floor, Washington, DC 20530.
Completed and signed debtor education
provider application forms should be
mailed to the EOUST, Debtor Education
Processing, 20 Massachusetts Ave. 8th

E:\FR\FM\05JYR1.SGM

05JYR1

Federal Register / Vol. 71, No. 128 / Wednesday, July 5, 2006 / Rules and Regulations

jlentini on PROD1PC65 with RULES

Floor, Washington, DC 20530.
Applicants should refer to the EOUST’s
Web site (http://www.usdoj.gov/ust) to
determine the current mailing address at
the time they submit subsequent
applications.
Executive Order 12866
This rule has been drafted and
reviewed in accordance with Executive
Order 12866, ‘‘Regulatory Planning and
Review’’ section 1(b), The Principles of
Regulation. The Department has
determined that this rule is a
‘‘significant regulatory action’’ and
accordingly this rule has been reviewed
by the Office of Management and
Budget.
The Department has also assessed
both the costs and benefits of this rule
as required by section 1(b)(6) and has
made a reasoned determination that the
benefits of this regulation justify its
costs. The costs considered in this
regulation include the costs of
submission of applications required if
an agency or provider wishes to be
approved for inclusion on the approved
list. Costs considered also include the
cost of establishing and maintaining the
approved list in each Federal judicial
district. In an effort to minimize the
applicant’s burden, the application
keeps the number of items on the
application to a minimum.
The costs to applicants will be
minimal. The only anticipated costs are
the photocopying and mailing of the
requested records, along with the
salaries of the employees who complete
the applications equaling approximately
$500 per application for agencies, and
$300 per application for providers.
These costs are inherent in the
qualification process mandated by
Congress. Those applying for approval
as credit counseling agencies must also
obtain a surety bond in the amount of
two percent of the agency’s prior year’s
gross disbursements made from trust
accounts or equal to the average daily
balance maintained in all trust accounts
for the six months prior to submission
of the application. In addition, credit
counseling agencies must obtain
employee fidelity insurance that equals
fifty percent of the surety bond.
Agencies are entitled to receive a credit
for any state bonds already obtained.
The number of applicants that will
ultimately apply is unknown, though
the EOUST believes the number may
reach approximately eight hundred
applicants for agencies and eight
hundred for providers. The annual hour
burden on agencies is estimated to be
ten (10) hours, and the annual hour
burden on providers is estimated to be
eight (8) hours. This estimate is based

VerDate Aug<31>2005

19:23 Jul 03, 2006

Jkt 208001

on consultations with individuals in the
credit counseling and debtor education
industries and from the experience of
applicants who completed the initial
applications.
The benefits of the rule clearly
outweigh the costs because the costs are
the lowest costs feasible to comply with
the requirement that a list be established
as required pursuant to Public Law No.
109–8, section 106(e)(1).
Executive Order 13132
This rule will not have substantial,
direct effects on the States, on the
relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. Therefore, in
accordance with Executive Order 13132,
it is determined that this rule does not
have sufficient federalism implications
to warrant the preparation of a
Federalism Assessment.
Paperwork Reduction Act
The information collection
requirements contained in this rule are
currently under pending review by the
Office of Management and Budget
(OMB) in accordance with the
Paperwork Reduction Act of 1995, 44
U.S.C. 3501–3520, and assigned OMB
control number 1105–0084, for the
‘‘Application for Approval as a
Nonprofit Budget and Credit Counseling
Agency,’’ form number EOUST–CC1.
The information collection in
connection with the ‘‘Application for
Approval as a Provider of a Personal
Financial Management Instructional
Course,’’ form number EOUST–DE1, has
been assigned OMB control number
1105–0085. The Department notes that
full notice and comment opportunities
were provided to the general public
through the Paperwork Reduction Act
process, and that the applications and
associated requirements were modified
to take into account the concerns of
those who commented in this process.
Further comments and suggestions on
these collections should be directed to
the Office of Management and Budget,
Office of Information and Regulatory
Affairs, Attention Department of Justice
Desk Officer, Washington, DC 20503.
Additionally, comments may be
submitted to OMB via facsimile to (202)
395–5806.
Comments should address one or
more of the following four points: (1)
Evaluate whether the collections are
necessary for the proper performance of
the functions of the United States
Trustee, including whether the
information will have practical utility;
(2) evaluate the accuracy of the agency

PO 00000

Frm 00025

Fmt 4700

Sfmt 4700

38077

or provider’s estimate of the burden of
the proposed collection of information,
including the validity of the
methodology and assumptions used; (3)
enhance the quality, utility, and clarity
of the information to be collected; and
(4) minimize the burden of the
collection of information on those who
are to respond, including through the
use of appropriate automated,
electronic, mechanical, or other
technological collection techniques or
other forms of information technology
(e.g., permitting electronic submission
of responses).
The form ‘‘Application for Approval
as a Nonprofit Budget and Credit
Counseling Agency’’ EOUST–CC1, is
required to evaluate whether the
applicants met the established
qualifications for credit counseling. The
respondents are credit counseling
agencies who seek to counsel
individuals before they file bankruptcy.
The number of applicants for the next
year is unknown, though the EOUST
estimates there will be approximately
800 applicants, who will complete one
application, or a renewal application if
submitted previously. The estimated
burden imposed on the applicant is ten
hours, each, totaling 8,000 estimated
annual burden hours.
The form ‘‘Application for Approval
as a Provider of a Personal Financial
Management Instructional Course,’’
EOUST–DE1, is required to evaluate
whether the applicants met the
established qualifications for providers
of a personal financial management
instructional course. The respondents
are providers who seek to educate
individuals after they file bankruptcy.
The number of applicants for the next
year is unknown, though EOUST
estimated there may be approximately
800 applicants, who will complete one
application, or a renewal application if
submitted previously. The estimated
burden imposed on the applicant is
eight hours, each, totaling 6,400
estimated annual burden hours.
Regulatory Flexibility Act
This interim rule does not fall within
the definition of ‘‘rule’’ in the
Regulatory Flexibility Act, 5 U.S.C.
601(2) because there is good cause for
not publishing it as a general notice of
proposed rulemaking pursuant to
section 553(b) of the Administrative
Procedure Act.
Unfunded Mandates Reform Act of
1995
This rule does not require the
preparation of an assessment statement
in accordance with the Unfunded
Mandates Reform Act of 1995, 2 U.S.C.

E:\FR\FM\05JYR1.SGM

05JYR1

38078

Federal Register / Vol. 71, No. 128 / Wednesday, July 5, 2006 / Rules and Regulations

1531. This rule does not include a
Federal mandate that may result in the
annual expenditure by State, local, and
tribal governments, in the aggregate, or
by the private sector, of more than the
annual threshold established by the Act
($123 million in 2005, adjusted
annually for inflation). Therefore, no
actions were deemed necessary under
the provisions of the Unfunded
Mandates Reform Act of 1995.

jlentini on PROD1PC65 with RULES

Small Business Regulatory Enforcement
Fairness Act of 1996
This rule is not a major rule as
defined by section 804 of the Small
Business Regulatory Enforcement
Fairness Act of 1996. This rule will not
result in an annual effect on the
economy of $100,000,000 or more; a
major increase in costs or prices; or
significant adverse effects on
competition, employment, investment,
productivity, innovation, or on the
ability of United States-based
companies to compete with foreignbased companies in domestic and
export markets.
Administrative Procedure Act, 5 U.S.C.
553
This rule provides that nonprofit
budget and credit counseling agencies
and providers of a personal financial
management instructional course
desiring to be included on a publicly
available list of agencies or providers
deemed qualified to counsel or instruct
debtors in each federal judicial district
shall submit a specified application to
the United States Trustee. Under the
new Bankruptcy Code provisions, an
agency or provider may initially be
approved for a period of time not to
exceed six months. Agencies or
providers must then re-apply for
approval annually. In order to have a
sufficient number of qualified agencies
and providers operating for debtors to
receive the requisite credit counseling
and debtor education, the United States
Trustees must rapidly gather
information about agencies and
providers through an application
process. This information must be
gathered with enough time to allow the
United States Trustee to review the
application materials in order to
approve only qualified agencies and
providers. Without this information, the
United States Trustee will be unable to
perform its Congressionally mandated
duties.
Existing agencies and providers were
approved for a six-month probationary
period beginning on September 16,
2005. In light of the imminent
expiration of the six-month
probationary period for a large group of

VerDate Aug<31>2005

19:23 Jul 03, 2006

Jkt 208001

initially approved agencies and
providers, the Department has
determined that there is ‘‘good cause’’ to
implement this application process
immediately, and that delaying the
implementation in order to provide the
Administrative Procedure Act’s normal
pre-promulgation notice-and-comment
period would be impracticable and
contrary to the public interest. 5 U.S.C.
553(b)(B). This is especially true given
that the public has already had an
opportunity to comment during the
Paperwork Reduction Act review
process for the applications and that the
Department did make modifications
pursuant to public commenters’
suggestions.
For the same reasons, the Department
also finds ‘‘good cause’’ for exempting
this rule from the provision of the
Administrative Procedure Act providing
for a delayed effective date. U.S.C.
553(d). Delaying the opportunity for
agencies and providers to submit an
application and to seek to be included
on the approved list would be contrary
to the public interest since there must
be sufficient agencies to offer services
after the six month probationary term
expires and without the availability of
approved agencies, individuals may not
have access to bankruptcy relief. In
addition, without the availability of
approved providers, debtors may not be
able to obtain a discharge of debts
because the personal financial
management instructional course is
mandatory before a discharge may be
granted. In order for the United States
Trustee to evaluate the qualifications of
the agencies and providers, an
application must be available for the
agencies and providers to complete.
The Department welcomes postpromulgation comments regarding this
interim final rule including the
applications and appendices, which can
be viewed at the EOUST’s Web site at
http://www.usdoj.gov/ust, and will
consider those comments carefully in
continuing to review the application
process in the future. The Department
also notes that it will publish more
comprehensive regulations later this
year through a notice of proposed
rulemaking with full opportunity for
public notice and comment.
Privacy Act Statement.
Section 111 of title 11, United States
Code, authorizes the collection of this
information. The primary use of this
information is by the Executive Office
for United States Trustees to approve
nonprofit budget and credit counseling
agencies and to approve providers of
personal financial management
instructional courses. Additional

PO 00000

Frm 00026

Fmt 4700

Sfmt 4700

disclosure of the information may be to
district and regional offices of each
United States Trustee. The information
will not be shared with any other
agencies unless allowed by law.
Public Law 104–134 (April 26, 1996)
requires that any person doing business
with the federal government furnish a
Social Security Number or Tax
Identification Number. This is an
amendment to title 31, section 7701.
Furnishing the Social Security Number,
as well as other data, is voluntary, but
failure to do so may delay or prevent
action on the application.
List of Subjects in 28 CFR Part 58
Administrative practice and
procedure, Bankruptcy, Credit, Debts.
Accordingly, for the reasons set forth
in the preamble, part 58 of chapter I of
Title 28 of the Code of Federal
Regulations is amended as follows:

■

PART 58—[AMENDED]
1. The authority citation for part 58 is
revised to read as follows:

■

Authority: 5 U.S.C. 301; 28 U.S.C. 509,
510, 586; 11 U.S.C. 109(h), 111, 727(a)(11),
1328(g)(1), 1141(d)(3)(c).
■ 2. Add §§ 58.15, 58.16, and 58.17 to
read as follows:

§ 58.15 Qualifications for approval as a
nonprofit budget and credit counseling
agency.

(a) Definition of agency. As used in
this section the term ‘‘agency’’ means
nonprofit budget and credit counseling
agency.
(b) Qualifications. To be included on
the list of approved nonprofit budget
and credit counseling agencies under 11
U.S.C. 111 an agency shall meet the
qualifications set forth in paragraphs (d)
through (i) of this section. An agency
shall continuously meet these
qualifications in order to remain
included on this list when the list is
updated thereafter.
(c) Preemption. Nothing contained in
these regulations or the related
application, appendices or instructions
is intended to preempt any applicable
law or regulation governing the conduct
or operations of an agency.
(d) Structure and organization. A
nonprofit budget and credit counseling
agency must:
(1) Be organized and operated as a
nonprofit entity;
(2) Be in compliance with all
applicable laws and regulations of the
United States and each state,
commonwealth, district, or territory of
the United States in which the agency
conducts credit counseling services;

E:\FR\FM\05JYR1.SGM

05JYR1

jlentini on PROD1PC65 with RULES

Federal Register / Vol. 71, No. 128 / Wednesday, July 5, 2006 / Rules and Regulations
(3) Have an independent board of
directors the majority of which:
(i) Are not employed by such agency;
and
(ii) Will not directly or indirectly
benefit financially from the outcome of
the counseling services provided by
such agency;
(4) Ensure that no member of the
board of directors or trustees, officer,
manager, employee, counselor, or agent
is a United States Trustee Program
employee, a panel or standing trustee, a
Federal judge, a Federal court employee,
a certified public accountant that
performs audits of the agency’s trust
accounts, or a person with a financial or
familial connection to the United States
Trustee Program.
(5) Avoid any conduct or transactions
that generate or create the appearance of
generating a private benefit for any
individual or group related or connected
to the Agency.
(e) Fees. If a fee is charged for
counseling services, charge a reasonable
fee, and provide services without regard
to ability to pay the fee; the agency’s
criteria for providing services without a
fee or at a reduced rate must be
provided to the United States Trustee.
In addition, an agency shall:
(1) Have sufficient computer
capabilities or secure access to issue
certificates of completion of credit
counseling in conformance with the
directives established by the EOUST;
(2) Not withhold a certificate of
counseling completion because of a
client’s inability to pay;
(3) Advise the client of the fee
schedule before services are provided
and inform the client that services are
available for free or at a reduced rate
based on a client’s ability to pay;
(4) Issue a certificate to any client
who completes credit counseling and a
budget analysis, regardless of whether a
client agrees to participate in a debt
management plan and without regard to
the client’s ability to pay;
(5) Issue the certificate within one
business day to a client after completion
of the required counseling or upon the
earlier of the following:
(i) A request by a client for the
issuance of a certificate; or
(ii) The completion or termination of
a counseling session, which may
include the administration of a debt
management plan;
(6) Not charge a separate fee for the
issuance of a certificate of counseling
unless the agency has clearly disclosed
such fee before the initial credit
counseling session;
(7) Issue a certificate to each spouse
whether counseling was provided
individually or in a joint session;

VerDate Aug<31>2005

19:23 Jul 03, 2006

Jkt 208001

(8) Maintain adequate records to issue
replacement certificates and to verify
the authenticity of certificates filed by
bankruptcy debtors;
(9) Provide full disclosures to a client,
including funding sources, counselor
qualifications, possible impact on credit
reports, the cost of services to be paid
by the client and how such costs will be
paid, before services are rendered and
regardless of whether the client enters
into a debt management plan.
(f) Standards for counseling and
counselors. Agencies and credit
counselors shall not, unless otherwise
authorized by law, provide legal advice
on any matter. Agencies and credit
counselors shall:
(1) Provide adequate briefings, budget
analysis, and credit counseling services
to clients lasting an average of 60 to 90
minutes in length that include an
outline of available counseling
opportunities to resolve a client’s credit
problems, an analysis of the client’s
current financial condition, discussion
of the factors that caused such financial
condition, and assistance in developing
a plan to respond to the client’s
problems without incurring negative
amortization of debt;
(2) Provide trained counselors who
receive no commissions or bonuses
based on the outcome of the counseling
services provided by such agency, and
who have adequate experience, and
have been adequately trained to provide
counseling services to individuals in
financial difficulty, including the
matters described in sub-paragraph (1)
of this paragraph. A counselor shall be
deemed to have adequate training and
experience to provide credit counseling
and budget analysis if the counselor is
accredited or certified by a recognized
independent organization, or has
successfully completed a course of
study acceptable to the United States
Trustee and has worked a minimum of
six months in a related area, including
personal finance, budgeting, and debt
management. The United States Trustee
Program does not endorse any specific
course or certification program;
(3) Demonstrate adequate experience
and background in providing credit
counseling, which means, at a
minimum, that an agency must:
(i) Have experience in providing
credit counseling for the previous two
years. Alternatively, if an agency fails to
meet the two-year requirement, the
agency must currently employ in each
office location that serves clients at least
one office supervisor with experience
and background in providing credit
counseling for no less than two of the
five years preceding the relevant
application date, including only

PO 00000

Frm 00027

Fmt 4700

Sfmt 4700

38079

experience obtained on or after January
1, 2003; and
(ii) If an agency offers telephone or
Internet credit counseling services, the
agency must, in addition to all other
requirements, demonstrate sufficient
experience and proficiency in designing
and providing such services over the
telephone and/or Internet, including
verification procedures to identify the
person receiving the counseling services
and to ensure that the counseling
services are properly completed.
(g) Activity report. Upon application
for annual approval, the agency must
furnish an estimate of the information
requested in Appendix E, ‘‘Activity
Report for Approved Agencies,’’ of the
application projected to the end of
either the probationary period or annual
period. Within thirty (30) days after the
completion of either the probationary
period or annual period, the agency
must furnish an amended Appendix E
which includes the actual information.
(h) Agency declarations and
acknowledgments. (1) The agency’s
president, chairman, trustee, or other
authorized official is required to
declare, by signing the application, that
such individual is authorized to
complete the application on behalf of
the agency; that such individual has
read and knows the contents of the
application and all enclosures and
attachments submitted; and that such
individual affirms under penalty of
perjury that all of the representations
and statements contained therein are
true and correct to the best of such
individual’s knowledge, information,
and belief;
(2) By executing and submitting the
‘‘Application for Approval as a
Nonprofit Budget and Credit Counseling
Agency,’’ the agency acknowledges and
agrees to abide by the prohibitions,
limitations, and obligations set forth in
Appendix A, ‘‘Acknowledgments,
Agreements, and Declarations in
Support of Application for Approval as
a Nonprofit Budget and Credit
Counseling Agency,’’ of the application
which include, but are not limited to,
the following:
(i) Making all records relating to the
agency’s compliance with 11 U.S.C. 111
available to the United States Trustee
and EOUST upon request and
cooperating with the United States
Trustee and EOUST for any scheduled
or unscheduled on-site visits and
customer service audits;
(ii) Cooperating with the United
States Trustee and the EOUST in timely
responding to any questions or inquiries
concerning the agency’s operations and
services;

E:\FR\FM\05JYR1.SGM

05JYR1

jlentini on PROD1PC65 with RULES

38080

Federal Register / Vol. 71, No. 128 / Wednesday, July 5, 2006 / Rules and Regulations

(iii) Not excluding a creditor from a
debt management plan because the
creditor declines to make a ‘‘fair share’’
contribution to the agency;
(iv) Agreeing that any forms,
agreements, contracts, or other materials
provided to a client will not limit the
client’s right to seek damages against an
agency as provided for in 11 U.S.C.
111(g)(2);
(v) Conducting a state and Federal
criminal background check at least
every five years for each person
providing credit counseling services, if
such criminal background check is
authorized under state law, and not
employing as a counselor anyone who
has been convicted of any felony, or a
crime involving fraud, dishonesty, or
false statements, unless the United
States Trustee determines, upon review
and in his or her discretion,
circumstances warrant a waiver of this
employment requirement. The state
criminal background check shall be
conducted in the state where the
counselor resides. If a criminal
background check is not authorized by
state law, the agency shall obtain a
sworn statement from each counselor, at
least every five years, which attests to
whether the counselor has been
convicted of any felony or a crime
involving fraud, dishonesty, or false
statements;
(vi) Referring clients for counseling
services only to agencies that are
approved by the United States Trustee;
(vii) Complying with the EOUST’s
directions on approved advertising,
which is located in Appendix A to the
application;
(viii) Not disclosing or providing to a
credit reporting agency information
concerning whether a client has
received or sought instruction
concerning credit counseling or
personal financial management from an
agency, and not selling information
about a client to any third party without
the client’s written permission,
regardless of whether the counseling is
presented in a classroom, on the
telephone, on the Internet, or any other
venue;
(3) Upon request of the United States
Trustee or EOUST, an agency shall
submit a completed and signed tax
waiver, which authorizes the United
States Trustee or EOUST to seek
confidential information regarding the
agency from the Internal Revenue
Service.
(i) Agency financial requirements and
surety bonds. (1) If an agency offers debt
management plans, the agency must
have adequate financial resources to
provide continuing support services for
budgeting plans over the life of any

VerDate Aug<31>2005

19:23 Jul 03, 2006

Jkt 208001

repayment plan, and provide for the
safekeeping and payment of client
funds, including an annual audit of the
trust accounts in accordance with
generally accepted auditing standards
by an independent certified public
accountant, and appropriate employee
bonding; which includes:
(i) Depositing all client funds into a
trust account insured by a Federal
institution with respect to each client.
The records creating the trust account
must demonstrate that the trust account
was established in a fiduciary capacity
and must comply with the Federal
institution’s regulations so that each
client’s funds are insured up to the
maximum amount allowable by the
Federal institution;
(ii) Keeping and maintaining books,
accounts, and records to provide a clear
and readily understandable record of all
business conducted by the agency; and
(iii) Obtaining a surety bond payable
to the United States in an amount which
is the lesser of:
(A) Two percent of the agency’s prior
year disbursements made from trust
accounts; or
(B) Equal to the average daily balance
maintained in all trust accounts for the
six months prior to submission of the
application. At a minimum, the bond
must be $5,000;
(2) An agency may receive an offset or
credit for the surety bond amount as
follows:
(i) The agency has obtained a surety
bond, or similar cash, securities,
insurance (other than employee fidelity
insurance), or letter of credit, in
compliance with the requirements of the
state, commonwealth, district, or
territory (‘‘state’’) in which the agency
seeks approval from the United States
Trustee;
(ii) The surety bond, or similar cash,
securities, insurance (other than
employee fidelity insurance), or letter of
credit provides protection for the clients
of the agency;
(iii) The surety bond, or similar cash,
securities, insurance, or letter of credit,
must be written in favor of the state or
the appropriate state agency; and
(iv) The offset or credit is based on the
annual disbursements or average daily
bank balance directly related to the
clients in the particular state;
(3) An agency must have adequate
employee bonding or fidelity insurance.
The amount of such bonding or fidelity
shall be 50 percent of the surety bond
amount calculated prior to any offset/
credit that the agency may receive for
state bonds. At a minimum, the
employee bond or fidelity insurance
must be $5,000;

PO 00000

Frm 00028

Fmt 4700

Sfmt 4700

(4) An agency may receive an offset or
credit in the employee bond/fidelity
insurance amount as follows:
(i) The agency has obtained an
employee bond or fidelity insurance in
compliance with the requirements of a
state, commonwealth, district, or
territory in which the agency seeks
approval from the United States Trustee;
(ii) The deductible cannot exceed a
reasonable amount considering the
financial resources of the agency; and
(iii) The offset/credit is based on the
annual disbursements or average daily
bank balance directly related to the
clients in the particular state;
(5) If the agency has contracted with
another entity (‘‘service provider’’) to
administer any part of its debt
management plan, the service provider
is approved by the United States Trustee
as a nonprofit budget and credit
counseling agency, or the service
provider is specifically covered under
the agency’s surety bond or has a surety
bond in a sufficient amount to provide
for the safekeeping of the agency’s client
funds, and the service provider agrees in
writing to allow the United States
Trustee or EOUST to audit the trust
accounts maintained by the service
provider and to review the service
provider’s internal controls and
administrative procedures.
§ 58.16 Procedures for inclusion on the
approved list.

(a) As used in this section the term
‘‘agency’’ means nonprofit budget and
credit counseling agency.
(b) Each nonprofit budget and credit
counseling agency seeking to be
included on the list of approved
agencies must complete in its entirety
the application form EOUST–CC1,
‘‘Application for Approval as a
Nonprofit Budget and Credit Counseling
Agency’’ (application), including all
appendices, and submit it at the address
indicated on the application.
(c) The application must be executed
under penalty of perjury in a manner
specified in 28 U.S.C. 1746.
(d) An application may not be
accepted by the EOUST unless it is
complete and has been signed by an
agency representative who is authorized
to sign on behalf of the agency. An
application that is incomplete or has
been altered, amended, or changed in
any respect from the application at the
United States Trustee Program’s Web
site may not be accepted by the EOUST.
Such an application will be denied, and
no further action will be taken on the
request for inclusion on the approved
list until a new application is submitted
that corrects the defects.

E:\FR\FM\05JYR1.SGM

05JYR1

jlentini on PROD1PC65 with RULES

Federal Register / Vol. 71, No. 128 / Wednesday, July 5, 2006 / Rules and Regulations
(e) The EOUST will not accept an
application submitted by an agency on
behalf of another individual or group of
individuals. Each agency that desires to
be included on the approved list must
submit its own application.
(f) Each agency must submit a new
application 45 to 60 days before
expiration of its six month probationary
period or annual period to be
considered for annual approval. After
the application is completed and signed,
the originals must be mailed to the
EOUST, Credit Counseling Application
Processing, at the address indicated on
the application. The EOUST will not
accept a photocopy or facsimile of the
application.
(g) An agency whose name appears on
the list incorrectly may submit a written
request that the name be corrected. An
agency whose name appears on the list
may submit a written request that its
name be removed from the list.
(h) By submitting an application, the
agency expressly consents to the release
and disclosure of the agency’s name on
the approved list and the publication of
the agency’s contact information.
(i) Obligation to Update Information:
(1) The agency has a continuing duty to
promptly notify the EOUST of any
circumstances that would materially
alter or change a response to any section
of the application, including but not
limited to, changes in the location of
primary or satellite business office(s);
the principal contact person; name or
fictitious name under which the agency
does business; management, including
the board of directors; a merger or
consolidation with another entity; and
the banks or financial institutions used
by the agency;
(2) The agency shall request approval
by amendment to its application, and
prior to occurrence of the following
changes:
(i) Cancellation or change in amount
of the surety bond or employee fidelity
bond or insurance;
(ii) The engagement of a service
provider to provide counseling services
to administer debt management plans,
or to otherwise control or account for
client funds;
(iii) An increase in the fees,
contributions, or payments received
from clients for counseling services or a
change in the agency’s policy for the
reduction or waiver of fees;
(iv) Expansion into additional judicial
districts or withdrawal from judicial
districts where the agency is approved;
and
(v) Method of delivery or type of
counseling services;

VerDate Aug<31>2005

19:23 Jul 03, 2006

Jkt 208001

(3) The agency must include with any
amendment to its application, a newly
executed ‘‘certification and signature;’’
(4) The agency will notify the EOUST
immediately upon the occurrence of any
of the below noted events:
(i) Cancellation or termination of tax
exempt status of the agency by the
Internal Revenue Service;
(ii) Cessation of business of the
agency or of any office of the agency;
(iii) Termination or cancellation of
any surety bond or fidelity insurance;
(iv) Any action brought against the
agency by a Federal or state agency,
including, but not limited to, the
Federal Trade Commission, or any
action against the surety bond or fidelity
insurance;
(v) Any action by a state agency to
suspend the license or cancel other
authorization to do business;
(vi) A suspension by an accreditation
organization or denial of accreditation;
(vii) Withdrawal as an approved
agency; and
(viii) Change in the agency’s nonprofit
status;
(j) An approved agency may not
transfer or assign its United States
Trustee approval under section 111 as a
nonprofit budget and credit counseling
agency to any party.
§ 58.17 Procedures for denying an
application or removing an agency from the
approved list, and the administrative review
rights granted to denied or removed
agencies.

(a) As used in this section the term
‘‘agency’’ means nonprofit budget and
credit counseling agency.
(b) No administrative review will be
granted to any applicant that submitted
an incomplete application and had its
application denied due to
incompleteness and failed to
subsequently submit a completed
application.
(c) The agency shall be notified in
writing of any decision to deny the
agency’s application or to remove the
agency from the approved list
(‘‘notice’’). The notice shall state the
reason(s) for the decision and shall
reference any documents or
communications with the agency, which
were relied upon in making the denial
or removal decision. If such documents
or communications were not provided
to the United States Trustee or the
EOUST by the agency, copies of the
documents or communications shall be
provided with the notice. The notice
shall be sent to the agency by overnight
courier, for delivery the next business
day.
(d) The notice shall advise the agency
that the decision is final unless the

PO 00000

Frm 00029

Fmt 4700

Sfmt 4700

38081

agency requests in writing a review
(‘‘request for review’’) by the Director,
Executive Office for United States
Trustees (‘‘Director’’), no later than 20
calendar days from the date of issuance
of the denial or removal notice. In order
to be timely, a request for review must
be received at the Office of the Director
no later than 20 calendar days from the
date of the denial or removal notice to
the agency.
(e) A decision to remove an agency
from the approved list shall take effect
upon the expiration of an agency’s time
to seek review from the Director or, if
the agency timely seeks such review,
upon the issuance of a final written
decision by the Director.
(f) Notwithstanding sub-paragraph (e)
of this section, a decision to remove an
agency from the approved list may
include, or may later be supplemented
by, an interim directive, which may
immediately remove an agency from the
approved list. Such an interim directive
may be issued if one or more of the
following are specifically found:
(1) The agency is not providing for the
safekeeping and payment of client
funds;
(2) The agency’s surety bond has been
canceled;
(3) The agency made a material false
statement on the application;
(4) The agency (board of directors,
officer, manager, employee, counselor,
or agent) has engaged in conduct that is
dishonest, deceitful, fraudulent, or
criminal in nature;
(5) The agency (board of directors,
officer, manager, employee, counselor,
or agent) has engaged in other gross
misconduct that is unbefitting the
agency’s position as an approved
agency;
(6) The agency’s nonprofit status has
been revoked by the entity that issued
the agency its nonprofit status;
(7) Revocation of the agency’s license
to do business in a particular state,
provided the immediate removal shall
apply only to the federal judicial
districts within the particular state; or
(8) The Internal Revenue Service
revokes the agency’s tax exempt status.
(g) The agency’s request for review
shall fully describe why the agency
disagrees with the denial or removal
decision, and shall be accompanied by
all documents and materials that the
agency wants the Director to consider in
reviewing the decision. The agency
shall send a copy of the request for
review, and the accompanying
documents and materials, to the
Director by overnight courier, for
delivery the next business day, and
must be received by the Director within

E:\FR\FM\05JYR1.SGM

05JYR1

38082

Federal Register / Vol. 71, No. 128 / Wednesday, July 5, 2006 / Rules and Regulations

20 calendar days of the denial or
removal notice.
(h) The Director may seek additional
information from any party, in the
manner and to the extent the Director
deems appropriate.
(i) The Director shall issue a written
decision no later than 45 calendar days
from the receipt of the agency’s request
for review, unless the agency agrees to
a longer period of time or the Director
extends the period. That decision shall
determine whether the denial or
removal decision is supported by the
record and the action is an appropriate
exercise of discretion, and shall adopt,
modify, or reject the denial or removal
decision. The Director’s decision shall
constitute final government agency
action.
(j) In reaching a determination, the
Director may specify a person to act as
a reviewing official. The reviewing
official shall not be a person who was
involved in the denial or removal
decision. The reviewing official’s duties
shall be specified by the Director on a
case by case basis, and may include
reviewing the record, obtaining
additional information from the
participants, providing the Director with
written recommendations, or such other
duties as the Director shall prescribe in
a particular case.
(k) An agency that files a request for
review shall bear its own costs and
expenses, including counsel fees.
§§ 58.18 through 58.24

[Reserved]

3. Add and reserve §§ 58.18 through
58.24.
■ 4. Add §§ 58.25, 58.26, and 58.27 to
read as follows:
■

jlentini on PROD1PC65 with RULES

§ 58.25 Qualifications for approval as
providers of a personal financial
management instructional course:

(a) Definition of provider. As used in
this section the term ‘‘provider’’ means
a provider of a personal financial
management instructional course.
(b) Qualifications. To be included on
the list of approved providers under 11
U.S.C. 111, a provider shall meet the
qualifications set forth in paragraphs (d)
through (k) of this section. A provider
shall continuously meet these
qualifications in order to remain
included on this list when the list is
updated thereafter.
(c) Preemption. Nothing contained in
these regulations or the related
application, appendices or instructions
is intended to preempt any applicable
law or regulation governing the conduct
or operations of a provider.
(d) Structure and organization. A
provider of a personal financial
management instructional course must

VerDate Aug<31>2005

19:23 Jul 03, 2006

Jkt 208001

be in compliance with all applicable
laws and regulations of the United
States and each state, commonwealth,
district, or territory of the United States
in which the provider conducts courses.
Nothing contained in these instructions,
the application, or the appendices
thereto, is intended to preempt any
applicable law or regulation governing
the conduct or operations of the
provider.
(e) Standards for teachers. A provider
shall employ trained personnel with
adequate experience and training in
providing effective instruction and
services, which means the provider
shall employ, at a minimum, an
individual who holds at least one of the
following current certifications and/or
accreditations, or who has equivalent
training or experience, to supervise
instructors:
(1) A state teacher’s certificate in any
subject;
(2) Certification as a Certified
Financial Planner (CFP);
(3) Certification or accreditation as a
credit counselor or a financial counselor
by a recognized independent
organization;
(4) Certification by the American
Association of Family and Consumer
Sciences;
(5) Registered as a Registered
Financial Consultant (RFC); or
(6) Certified as a Certified Public
Accountant (CPA).
(f) Learning materials and
methodologies. A provider shall provide
learning materials and teaching
methodologies designed to assist
debtors in understanding personal
financial management and that are
consistent with stated objectives
directly related to the goals of such
instructional course, which include
written information and instruction on
all of the following topics:
(1) Budget development, which
consists of the following:
(i) Setting short-term and long-term
financial goals, as well as developing
skills to assist in achieving these goals;
(ii) Calculating gross monthly income
and net monthly income;
(iii) Identifying and classifying
monthly expenses as fixed, variable, or
periodic;
(2) Money management, which
consists of the following:
(i) Keeping adequate financial
records;
(ii) Developing decision-making skills
required to distinguish between wants
and needs, and to comparison shop for
goods and services;
(iii) Maintaining appropriate levels of
insurance coverage, taking into account
the types and costs of insurance;

PO 00000

Frm 00030

Fmt 4700

Sfmt 4700

(iv) Saving for emergencies, for
periodic payments, and for financial
goals;
(3) Wise use of credit, which consists
of the following:
(i) The types, sources, and costs of
credit and loans;
(ii) Identifying debt warning signs;
(iii) Appropriate use of credit and
alternatives to credit use;
(iv) Checking a credit rating;
(4) Consumer information, which
consists of the following:
(i) Public and non-profit resources for
consumer assistance;
(ii) Applicable consumer protection
laws and regulations, such as those
governing correction of a credit record
and protection against consumer fraud.
(g) Course procedures. A provider
shall ensure the following procedures
are followed:
(1) Generally, the provider shall:
(i) Require each debtor student to
provide proof of identification, to
provide his/her bankruptcy case
number, and to sign in and sign out of
the course;
(ii) Conduct the course for a minimum
of two hours in length. Courses offered
via the Internet or telephone should be
designed for completion with a
minimum of two hours;
(iii) At the end of the course, collect
from each debtor student a completed
course evaluation. The evaluation shall
be in a form acceptable to the EOUST;
(2) For classroom instruction, the
provider shall ensure:
(i) A teacher is present for purposes
of instruction and interaction with
debtor students;
(ii) Class size is reasonably limited to
ensure an effective presentation of the
course materials;
(3) For telephone instruction, the
provider shall:
(i) Provide a toll-free telephone
number;
(ii) Comply with the Americans with
Disabilities Act and also include a tollfree number for deaf or hearingimpaired debtor students, e.g. TTY,
TDD, or Text Telephone;
(iii) Employ adequate procedures to
ensure that the debtor student is the
individual who completed the course;
(iv) Ensure that a teacher is present
telephonically for purposes of
instruction and interaction with debtor
students;
(v) Provide copies of the learning
materials to debtor students before the
telephone instruction session;
(4) For Internet instruction, the
provider shall:
(i) Comply with the Americans with
Disabilities Act and its application to
the Internet;

E:\FR\FM\05JYR1.SGM

05JYR1

jlentini on PROD1PC65 with RULES

Federal Register / Vol. 71, No. 128 / Wednesday, July 5, 2006 / Rules and Regulations
(ii) Employ adequate procedures to
ensure that the debtor student is the
individual who completed the course
and that the individual received two
hours of instruction;
(iii) Ensure that a teacher will respond
within one business day to a debtor
student’s questions or comments;
(5) In addition to meeting all other
requirements, the provider who
conducts telephone or Internet courses
must demonstrate sufficient experience
and proficiency in designing and
providing services over the telephone or
Internet.
(h) Facilities. A provider shall provide
adequate facilities situated in a
reasonably convenient location at which
such instructional course is offered,
except that such facilities may include
the provisions of such instructional
course by telephone or through the
Internet, if such instructional course is
effective;
(1) The provider shall ensure that any
facility used by debtor students
complies with all applicable laws and
regulations including, but not limited
to, the Americans with Disabilities Act
Accessibility Guidelines, and all federal,
state, and local fire, health, safety, and
occupancy laws, codes, rules, or
regulations.
(i) Activity report and records. A
provider shall prepare and retain
reasonable records (which shall include
the debtor’s bankruptcy case number) to
permit evaluation of the effectiveness of
such instructional course, including any
evaluation of satisfaction of
instructional course requirements for
each debtor attending such instructional
course, which shall be available for
inspection and evaluation by the
EOUST or the United States Trustee for
the district in which such instructional
course is offered;
(1) Upon application for annual
approval, the provider must furnish an
estimate of the information requested in
Appendix F to the application,
projected to the end of either the
probationary period or annual period.
Within 30 days after the completion of
either the probationary period or annual
period, the provider must furnish an
amended Appendix F which includes
the actual information;
(2) Make all records related to the
provider’s compliance with 11 U.S.C.
111 available to the United States
Trustee or EOUST upon request and
cooperate with the United States
Trustee or EOUST for any scheduled or
unscheduled on-site visit or customer
service audit.
(j) Fees and certificates. If a fee is
charged for counseling services, a
provider shall charge a reasonable fee,

VerDate Aug<31>2005

19:23 Jul 03, 2006

Jkt 208001

and provide services without regard to
ability to pay the fee; the provider’s
criteria for providing services without a
fee or at a reduced rate must be
provided to the United States Trustee.
In addition, a provider shall:
(1) Have sufficient computer
capabilities to issue certificates of
completion of an instructional course in
conformance with the directives
established by the EOUST;
(2) Advise the debtor student of the
fee schedule before the instructional
course is provided and inform the
debtor student that services are
available for free or at a reduced rate
based on the debtor student’s ability to
pay;
(3) Issue certificates to any debtor
student who completes an instructional
course without regard to the debtor
student’s ability to pay;
(4) Issue the certificate within three
business days to a debtor student after
completion of the required instructional
course;
(5) Not withhold the issuance of a
certificate because of a debtor student’s
failure to obtain a passing grade on a
quiz, examination, or test. Although a
test may be incorporated into the
curriculum to evaluate the effectiveness
of the course and to ensure that the
course has been completed, the provider
cannot deny a certificate to a debtor
student if the debtor student has
completed the course as designed;
(6) Not charge a separate fee for the
issuance of a certificate unless the
provider has clearly disclosed such fee
before the beginning of the instructional
course;
(7) Issue a certificate to each spouse
in a joint case whether the course is
completed independently or jointly;
(8) Maintain adequate records to issue
replacement certificates and to verify
the authenticity of certificates filed by
bankruptcy debtors.
(k) Provider declarations and
acknowledgments. (1) The provider’s
owner, president, chairman, trustee, or
other authorized official is required to
declare, by signing the application, that
such individual is authorized to
complete the application on behalf of
the provider; that such individual has
read and knows the contents of the
application and all enclosures and
attachments submitted; and to affirm
under penalty of perjury that all of the
representations and statements
contained therein are true and correct to
the best of such individual’s knowledge,
information, and belief;
(2) The provider shall disclose the
following information to each debtor
student before the commencement of
the instructional course:

PO 00000

Frm 00031

Fmt 4700

Sfmt 4700

38083

(i) The provider’s fee schedule,
including any cost to the debtor student
in addition to the course fee;
(ii) A statement that the course is
offered to debtor students without
regard to a debtor student’s ability to
pay;
(iii) The qualifications, including
educational and training background, of
the provider’s teachers;
(iv) A schedule of course dates, times,
and locations;
(v) A statement that the provider does
not pay or receive fees or other
consideration for the referral of debtor
students to or by the provider;
(vi) A statement that, upon
completion of the course, the provider
will provide a certificate of course
completion to the debtor student;
(3) By executing and submitting the
‘‘Application for Approval as a Provider
of a Personal Financial Management
Instructional Course,’’ the provider
acknowledges and agrees to abide by the
prohibitions, limitations, and
obligations set forth in Appendix A,
‘‘Acknowledgments, Agreements, and
Declarations in Support of Application
for Approval as a Provider of a Personal
Financial Management Instructional
Course,’’ which include, but are not
limited to, the following:
(i) Ensuring that no member of the
board of directors or trustees, owner,
officer, manager, employee, or agent is
a United States Trustee Program
employee, panel trustee, or person with
a financial or familial connection to a
panel trustee or an employee of the
United States Trustee Program. For
purposes of this paragraph, a person is
not deemed to have a financial
relationship to a panel trustee solely
because the person is an employee of
the panel trustee;
(ii) Not paying or receiving referral
fees or other consideration for the
referral of debtor students;
(iii) Ensuring that the course will not
contain any commercial advertising,
and that the provider shall not promote,
market, or sell financial products; solicit
business of any type; or sell information
about the debtor to any third party
without the debtor’s permission,
whether the course is presented in a
classroom, on the telephone, or on the
Internet;
(iv) Complying with the EOUST’s
directions on approved advertising,
which is located in Appendix A to the
application;
(v) Cooperating with the EOUST and
the United States Trustee in timely
responding to any questions or inquiries
concerning the provider’s operations
and/or instructional course;

E:\FR\FM\05JYR1.SGM

05JYR1

38084

Federal Register / Vol. 71, No. 128 / Wednesday, July 5, 2006 / Rules and Regulations

(vi) Consenting that any forms,
agreements, contracts, or other materials
furnished to a debtor student will not
limit the debtor student’s ability to bring
an action or claim under the provision
of the United States Bankruptcy Code.
11 U.S.C. 101 et. seq.
(l) Universities. Accredited
universities and community colleges
(‘‘universities’’) are eligible to apply to
become providers using a streamlined
version of the application. Universities
need to complete only the following
portions of the application:
(1) In section 1—General Information
Concerning the Provider—complete
sections: 1.1, 1.2, 1.3, 1.4, 1.5, 1.6, 1.8,
and 1.10;
(2) In section 4—Learning Materials
and Methodologies—complete sections:
4.1, 4.2, 4.4, 4.5, 4.6, 4.7, and 4.8;
(3) In section 6—Fees and Issuance of
Certificates—complete section 6.1;
(4) In section 7—Activity Report for
Approved Providers—complete section
7.1;
(5) In section 8—Acknowledgments,
Agreements, and Declarations—
complete sections 8.1 and 8.2;
(6) In section 9—Certification and
Signature—execute the application as
indicated in the instructions;
(7) Completed applications should be
submitted to the EOUST in accordance
with the procedures in section 58.19.

jlentini on PROD1PC65 with RULES

§ 58.26 Procedures for inclusion on the
approved provider list.

(a) As used in this section the term
‘‘provider’’ means a provider of a
personal financial management
instructional course.
(b) Each provider seeking to be
included on the list of approved
providers must complete in its entirety
the application form EOUST–DE1,
‘‘Application for Approval as a Provider
of a Personal Financial Management
Course’’ (application), including all
appendices, and submit it at the address
indicated on the application. Accredited
universities may complete only the
portions of the application as indicated
in section 58.25(l).
(c) The application must be executed
under penalty of perjury in a manner
specified in 28 U.S.C. 1746.
(d) An application will not be
accepted by the EOUST unless it is
complete and has been signed by a
provider representative who is
authorized to sign on behalf of the
provider. An application that is
incomplete or has been altered,
amended, or changed in any respect
from the application at the United States
Trustee Program’s Web site will not be
accepted by the EOUST. Such an
application will be denied, and no

VerDate Aug<31>2005

19:23 Jul 03, 2006

Jkt 208001

further action on the request for
inclusion on the approved list will be
taken until a new application is
submitted that corrects the defects.
(e) The EOUST will not accept an
application submitted by a provider on
behalf of another individual or group of
individuals. Each provider that desires
to be included on the approved list must
submit its own application.
(f) Each provider must submit a new
application 45 to 60 days before
expiration of its six month probationary
period or annual period to be
considered for annual approval. After
the application is completed and signed,
the originals and a copy must be mailed
to the EOUST, Debtor Education
Provider Application Processing, at the
address indicated on the application.
The EOUST will not accept a photocopy
or facsimile of the application in lieu of
the original.
(g) A provider whose name appears
on the list incorrectly may submit a
written request that the name be
corrected. A provider whose name
appears on the list may submit a written
request that its name be removed from
the list.
(h) By submitting an application, the
provider expressly consents to the
release and disclosure of the provider’s
name on the approved list, and the
publication of the provider’s contact
information.
(i) Obligation to Update Information:
(1) The provider has a continuing duty
to promptly notify the EOUST of any
circumstances that would materially
alter or change a response to any section
of the application, including but not
limited to, changes in the location of
primary or satellite business office(s);
the principal contact person; name or
fictitious name under which the
provider does business; management,
including the board of directors; and a
merger or consolidation with another
entity;
(2) The provider shall request
approval by amendment to its
application, and prior to occurrence of
the following changes:
(i) An increase in the fees,
contributions, or payments received
from debtor students for the
instructional course or a change in the
provider’s policy for the reduction or
waiver of fees;
(ii) Expansion into additional judicial
districts or withdrawal from judicial
districts where the provider is
approved; and
(iii) Method of delivery type of
instructional services or course
curriculum;
(3) The provider must include with
any amendment to its application, a

PO 00000

Frm 00032

Fmt 4700

Sfmt 4700

newly executed ‘‘certification and
signature;’’
(4) The provider will notify the
EOUST immediately upon the
occurrence of any of the below noted
events:
(i) Cessation of business of the
provider or of any office of the provider;
(ii) Any action by a state agency to
suspend the license or cancel other
authorization to do business;
(iii) A suspension by an accreditation
organization or denial of accreditation;
and
(iv) Withdrawal as an approved
provider;
(j) An approved provider may not
transfer or assign its United States
Trustee approval under section 111 as a
provider of a personal financial
management instructional course.
§ 58.27 Procedures for denying an
application or removing a provider from the
approved list, and the administrative review
rights granted to denied or removed
providers.

(a) As used in this section the term
‘‘provider’’ means a provider of a
personal financial management
instructional course.
(b) No administrative review will be
granted to any applicant that submitted
an incomplete application and had its
application denied due to
incompleteness and failed to
subsequently submit a completed
application.
(c) The provider shall be notified in
writing of any decision denying the
provider’s application or to remove the
provider from the approved list
(‘‘notice’’). The notice shall state the
reason(s) for the decision and shall
reference any documents or
communications with the provider,
which were relied upon in making the
denial or removal decision. If such
documents or communications were not
provided to the United States Trustee or
the EOUST by the provider, copies of
the documents or communications shall
be provided with the notice. The notice
shall be sent to the provider by
overnight courier, for delivery the next
business day.
(d) The notice shall advise the
provider that the decision is final unless
the provider requests in writing a
review (‘‘request for review’’) by the
Director, Executive Office for United
States Trustees (‘‘Director’’), no later
than 20 calendar days from the date of
issuance of the denial or removal notice.
In order to be timely, a request for
review must be received at the Office of
the Director no later than 20 calendar
days from the date of the removal notice
to the provider.

E:\FR\FM\05JYR1.SGM

05JYR1

jlentini on PROD1PC65 with RULES

Federal Register / Vol. 71, No. 128 / Wednesday, July 5, 2006 / Rules and Regulations
(e) A decision to remove a provider
from the approved list shall take effect
upon the expiration of a provider’s time
to seek review from the Director or, if
the provider timely seeks such review,
upon the issuance of a final written
decision by the Director.
(f) Notwithstanding sub-paragraph (e)
of this section, a decision to remove a
provider from the approved list may
include, or may later be supplemented
by, an interim directive, which may
immediately remove a provider from the
approved list. Such an interim directive
may be issued if one or more of the
following are specifically found:
(1) The provider made a material false
statement on the application;
(2) The provider (board of directors,
officer, manager, employee, counselor,
or agent) has engaged in conduct that is
dishonest, deceitful, fraudulent, or
criminal in nature;
(3) The provider (board of directors,
officer, manager, employee, counselor,
or agent) has engaged in other gross
misconduct that is unbefitting the
provider’s position as an approved
provider;
(4) Revocation of the provider’s
license to do business in a particular
state, provided the immediate removal
shall apply only to the federal judicial
districts within the particular state.
(g) The provider’s request for review
shall fully describe why the provider
disagrees with the denial or removal
decision, and shall be accompanied by
all documents and materials that the
provider wants the Director to consider
in reviewing the decision. The provider
shall send a copy of the request for
review, and the accompanying
documents and materials, to the
Director by overnight courier, for
delivery the next business day, and
must be received by the Director within
20 calendar days of the denial or
removal notice.
(h) The Director may seek additional
information from any party, in the
manner and to the extent the Director
deems appropriate.
(i) The Director shall issue a written
decision no later than 45 calendar days
from the receipt of the provider’s
request for review, unless the provider
agrees to a longer period of time or the
Director extends the period. That
decision shall determine whether the
denial or removal decision is supported
by the record and the action is an
appropriate exercise of discretion, and
shall adopt, modify, or reject the denial
or removal decision. The Director’s
decision shall constitute final
government agency action.
(j) In reaching a determination, the
Director may specify a person to act as

VerDate Aug<31>2005

19:23 Jul 03, 2006

Jkt 208001

a reviewing official. The reviewing
official shall not be a person who was
involved in the denial or removal
decision. The reviewing official’s duties
shall be specified by the Director on a
case by case basis, and may include
reviewing the record, obtaining
additional information from the
participants, providing the Director with
written recommendations, or such other
duties as the Director shall prescribe in
a particular case.
(k) A provider that files a request for
review shall bear its own costs and
expenses, including counsel fees.
Dated: June 22, 2006.
Clifford J. White III,
Acting Director, Executive Office for United
States Trustees.
[FR Doc. E6–10234 Filed 7–3–06; 8:45 am]
BILLING CODE 4410–40–P

DEPARTMENT OF LABOR
Occupational Safety and Health
Administration
29 CFR Parts 1910, 1915, and 1926
RIN 1218–AB45

Occupational Exposure to Hexavalent
Chromium; Approval of Information
Collection Requirements
Occupational Safety and Health
Administration (OSHA), Department of
Labor.
ACTION: Final rule; notice of Office of
Management and Budget (OMB)
approval of collection of information
requirements.
AGENCY:

SUMMARY: OSHA is announcing that the
collection of information requirements
contained in the Chromium (VI)
standard (29 CFR parts 1910, 1915,
1917, 1918, and 1926) have been
approved by OMB under the Paperwork
Reduction Act of 1995. The OMB
approval number is 1218–0252.
DATES: This final rule is effective July 5,
2006.
FOR FURTHER INFORMATION CONTACT:
Todd Owen, OSHA, Directorate of
Standards and Guidance, Room N–3609,
U.S. Department of Labor, 200
Constitution Avenue, NW., Washington,
DC 20210; telephone (202) 693–2222.
SUPPLEMENTARY INFORMATION: OSHA
published a final rule for chromium (VI)
(Cr(VI)) on February 28, 2006, after
determining that employees exposed to
Cr(VI) are at increased risk of
developing lung cancer (71 FR 10099).
In addition, occupational exposure to
Cr(VI) may result in asthma, and
damage to the nasal passages and the

PO 00000

Frm 00033

Fmt 4700

Sfmt 4700

38085

skin. The final rule becomes effective on
May 30, 2006. As required by the
Paperwork Reduction Act of 1995, the
Federal Register notice for the Cr(VI)
final rule stated that compliance with
the collection of information
requirements was not required until
these requirements are approved by
OMB, and the Department of Labor
publishes a notice in the Federal
Register announcing that OMB
approved and assigned a control
number to the Cr(VI) requirements.
Under 5 CFR 1320.5(b), an agency may
not conduct or sponsor a collection of
information unless: (1) The collection of
information displays a current valid
OMB control number, and (2) the
agency informs members of the public
who must respond to the collection of
information that they are not required to
respond to the collection of information
unless the agency displays a currently
valid OMB control number.
On February 27, 2006, OSHA
submitted the Cr(VI) information
collection request for the final rule to
OMB for approval in accordance with
the Paperwork Reduction Act of 1995
(44 U.S.C. 3501–3520). On March 28,
2006, OMB approved the collections of
information contained in the final rule
and assigned this collection OMB
Control Number 1218–0252 title
‘‘Chromium (VI) Standards for General
Industry (29 CFR 1910.1026), Shipyard
Employment (29 CFR 1915.1026),1 and
Construction (29 CFR 1926.1126).’’ The
approval for the collection expires on
March 31, 2009. The approved
collections of information are:
• Exposure Determination—
1910.1026(d), 1915.1026(d), and
1926.1126(d).
Paragraphs 1910.1026(d)(2),
1915.1026(d)(2), and 1926.1126(d)(2)—
Scheduled monitoring option.
Paragraphs 1910.1026(d)(3),
1915.1026(d)(3), and 1926.1126(d)(3)—
Performance-oriented option.
Paragraphs 1910.1026(d)(4),
1915.1026(d)(4), and 1926.1126(d)(4)—
Employee notification of determination
results.
• Regulated Areas—1910.1026(e).
Paragraphs 1910.1026(e)(2)—
Demarcation.
• Respiratory Protection—
1910.1026(g), 1915.1026(f), and
1926.1126(f).
Paragraphs 1910.1026(g)(2),
1915.1026(f)(2), and 1926.1126(f)(2)—
Respiratory protection program (in
accordance with 29 CFR 1910.134).
1 The standard for shipyard employment also
applies to marine terminals (29 CFR part 1917) and
longshoring (29 CFR part 1918).

E:\FR\FM\05JYR1.SGM

05JYR1