14 November 2008

[Federal Register: November 14, 2008 (Volume 73, Number 221)]
[Proposed Rules]               
[Page 67435-67444]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14no08-40]                         

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DEPARTMENT OF JUSTICE

28 CFR Part 58

[Docket No: EOUST 104]
RIN 1105-AB31

 
Application Procedures and Criteria for Approval of Providers of 
a Personal Financial Management Instructional Course by United States 
Trustees

AGENCY: Executive Office for United States Trustees (``EOUST''), 
Justice.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This notice of proposed rulemaking (``rule'') sets forth 
proposed procedures and criteria United States Trustees shall use when 
determining whether applicants seeking to become and remain an approved 
provider of a personal financial management instructional course 
satisfy all prerequisites of the United States Code, as implemented 
under this rule. Under the current law, individual debtors must 
participate in an instructional course concerning personal financial 
management before receiving a discharge of debts. The current law 
enumerates mandatory prerequisites and minimum standards applicants 
seeking to become approved providers of a personal financial management 
instructional course must meet. Under this rule, United States Trustees 
will approve applicants for inclusion on publicly available provider 
lists in one or more federal judicial districts if an applicant 
establishes it meets all the requirements of the United States Code, as 
implemented under this rule. After obtaining such an approval, a 
provider shall be authorized to provide an instructional course in a 
federal judicial district during the time the provider remains 
approved.

DATES: Submit comments on or before January 13, 2009.

ADDRESSES: Comments on the rule may be submitted via http://
www.regulations.gov, by telefax to (202) 305-8536, or by postal mail to 
Executive Office for United States Trustees (``EOUST''), 20 
Massachusetts Ave., NW., 8th Floor, Washington, DC 20530. To ensure 
proper handling of comments, please reference ``Docket No. EOUST 104'' 
on all written and electronic correspondence.

[[Page 67436]]


FOR FURTHER INFORMATION CONTACT: Doreen Solomon, Assistant Director for 
Review and Oversight at (202) 307-2829 (not a toll-free number), or 
Larry Wahlquist, Office of General Counsel at (202) 307-1399 (not a 
toll-free number).

SUPPLEMENTARY INFORMATION:

Posting of Public Comments

    Please note that all comments received are considered part of the 
public record and made available for public inspection online at http:/
/www.regulations.gov. Such information includes personal identifying 
information (such as your name, address, etc.) voluntarily submitted by 
the commenter. If you want to submit personal identifying information 
(such as your name, address, etc.) as part of your comment, but do not 
want it to be posted online, you must include the phrase ``PERSONAL 
IDENTIFYING INFORMATION'' in the first paragraph of your comment. You 
must also locate all the personal identifying information you do not 
want posted online in the first paragraph of your comment and identify 
what information you want redacted.
    If you want to submit confidential business information as part of 
your comment but do not want it to be posted online, you must include 
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph 
of your comment. You must also prominently identify confidential 
business information to be redacted within the comment. If a comment 
has so much confidential business information that it cannot be 
effectively redacted, all or part of that comment may not be posted on 
http://www.regulations.gov.
    Personal identifying information and confidential business 
information identified and located as set forth above will be placed in 
the agency's public docket file, but not posted online. If you wish to 
inspect the agency's public docket file in person by appointment, 
please see the FOR FURTHER INFORMATION CONTACT paragraph. Comments 
filed after the end of the comment period may be considered to the 
extent feasible.

Discussion of Rule

    This rule implements those sections of Public Law 109-8, 119 Stat. 
23, 37, 38 (April 20, 2005) codified at 11 U.S.C. 111. Effective 
October 17, 2005, individual debtors under chapters 7, 13, and in some 
instances chapter 11, must receive from an approved provider an 
instructional course concerning personal financial management before 
they may receive a discharge of their debts. 11 U.S.C. 111, 727(a)(11), 
1141(d)(3)(C), 1328(g)(1).
    Section 111(b) of title 11, United States Code, governs the 
approval by United States Trustees of providers of a personal financial 
management instructional course for inclusion under 11 U.S.C. 111(a)(1) 
on publicly available provider lists in one or more United States 
district courts. Section 111 of title 11 provides that, in applicable 
jurisdictions, a United States Trustee may approve an application to 
become a provider of an instructional course only after the United 
States Trustee has thoroughly reviewed the applicant's (a) 
qualifications, and (b) instructional course. 11 U.S.C. 111(b)(1). A 
United States Trustee has statutory authority to require an applicant 
to provide information with respect to such review. 11 U.S.C. 
111(b)(1).
    After completing that thorough review, a United States Trustee may 
approve a provider of an instructional course only if the provider 
establishes that it fully satisfies all requisite standards. 11 U.S.C. 
111(b). Among other things, an applicant must establish it will (a) 
provide trained personnel with adequate experience in providing 
effective instruction and services, (b) provide learning materials and 
teaching methodologies designed to assist debtors in understanding 
personal financial management, (c) if applicable, provide adequate 
facilities for providing an instructional course, (d) prepare and 
retain reasonable records to permit evaluation of the effectiveness of 
an instructional course, and (e) if a fee is charged, charge a 
reasonable fee, and provide services without regard to ability to pay 
the fee. 11 U.S.C. 111(d)(1).
    This proposed rule will implement those statutory requirements. By 
accomplishing that, the rule will help debtors obtain effective 
instruction from competent providers. It also will provide an 
appropriate mechanism by which applicants can apply for approval under 
section 111 of title 11 to become providers of a personal financial 
management instructional course, and will enable such applicants to 
attempt to meet their burden of establishing they should be approved by 
United States Trustees under 11 U.S.C. 111.
    This rule, once final, will supersede the provisions that address 
providers of a personal financial management instructional course in 
EOUST's Interim Final Rule published on July 5, 2006 (71 FR 38076) 
entitled 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 (``Interim Final Rule''). The instructional course provisions 
are currently codified at 28 CFR 58.25, 58.26, and 58.27. Due to the 
necessity of quickly establishing a regulation to govern the 
application process for providers of an instructional course following 
the passage of BAPCPA, EOUST promulgated the Interim Final Rule rather 
than a notice of proposed rulemaking. Based upon experience 
administering the Interim Final Rule, and upon consideration of 
comments received regarding the Interim Final Rule, EOUST promulgates 
this rule as a notice of proposed rulemaking rather than a final rule 
in an effort to maximize public input. EOUST will respond to the 
comments to the Interim Final Rule and this rule when it publishes the 
final rule. EOUST has already published a notice of proposed rulemaking 
that addressed credit counseling agencies with a RIN number of 1105-
AB17. This rule parallels that credit counseling rule in many aspects. 
For instance, the application procedures are similar, as well as the 
procedures for denying or removing a provider from the approved list. 
Other similarities include the fee amount presumed to be reasonable, 
the debtor identification requirements, the requirement that providers 
use the United States Trustee's Certificate Generating System, the 
prohibition against limiting a debtor's ability to seek redress from 
the provider for any malfeasance, and many of the mandatory disclosures 
before providing services.
    In an effort to make information more accessible and 
understandable, several changes to the Interim Final Rule are proposed 
in this rule, along with other changes to enhance consumer protections. 
Some of the more significant changes include the following: (1) Adding 
identification procedures for debtors when accessing Internet or 
telephone instructional courses; (2) establishing a limit for 
instructional course fees to be presumed reasonable; (3) providing 
guidance on providers' responsibilities to individuals with limited 
English proficiency; and (4) requiring appropriate disclosures be made 
before providing services to debtors, such as a provider's fee policy 
and the prohibition from receiving referral fees.

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

[[Page 67437]]

``significant regulatory action'' and, accordingly, this rule has been 
reviewed by the Office of Management and Budget (``OMB'').
    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 required costs for 
the submission of an application. Costs considered also include the 
cost of establishing and maintaining the approved list in each federal 
judicial district. In an effort to minimize the burden on applicants, 
the application keeps the number of items on the application to a 
minimum.
    The costs to an applicant will be minimal. The anticipated costs 
are the photocopying and mailing of the requested records, along with 
the salaries of the employees who complete the applications. Based upon 
the available information, experience with the instructional course 
industry, and informal communications with providers, it is anticipated 
that this cost should equal approximately $500 per application for 
providers. This cost is not new; it is the same cost that providers 
incurred when applying under the Interim Final Rule. Public comments 
regarding the cost to applicants in completing the application are 
requested.
    Although providers may charge a fee for providing the financial 
management instructional course, providers must provide the 
instructional course without regard to a client's ability to pay the 
fee in accordance with 11 U.S.C. 111(d)(1)(E). Based upon the available 
information, current practice of many providers, experience with the 
instructional course industry, and informal communications with 
providers, $50 is presumed to be a reasonable fee for an instructional 
course. Public comments as to the reasonableness of $50 for an 
instructional course are requested. This rule does not prevent 
providers from charging more than $50; it requires providers to notify 
EOUST of any additional charge prior to implementing the additional fee 
and to justify the additional cost.
    The amount presumed to be reasonable for instructional course fees 
will be reviewed periodically, but not less than every four years, and 
the amount presumed to be reasonable will be published by notice in the 
Federal Register and identified on EOUST's Web site. In addition, all 
providers must waive the fee if the debtor demonstrates a lack of 
ability to pay the fee, which shall be presumed if the debtor's 
household current income is less than 150% of the income of the 
official poverty line as identified by the United States Department of 
Health and Human Services applicable to a household of the same size.
    The number of applicants that will ultimately apply is unknown; 
EOUST currently has approved approximately 300 providers. The annual 
hour burden on providers is estimated to be 10 hours. This estimate is 
based on consultations with individuals in the instructional course 
industry, and experience with providers who completed the initial 
applications. Public comments regarding the annual hour burden on 
providers of an instructional course in completing the application are 
requested.
    The EOUST consulted with the Federal Trade Commission (``FTC'') and 
with the Internal Revenue Service (``IRS'') in drafting this rule and 
the EOUST does not believe the rule has an adverse effect upon either 
agency.
    The benefits of this rule include the development of standards that 
increase consumer protections, such as a limit on the presumption of 
reasonable fees, and the requirement that providers give adequate 
disclosures concerning providers' policies. These disclosures include 
notifying clients that they may qualify for reduced or free services in 
order to further the BAPCPA's requirement that services be provided 
without regard to ability to pay the fee. This rule also provides for 
greater supervision by the United States Trustee to ensure providers 
deliver effective instruction to debtors concerning personal financial 
management. Additionally, this rule assists in reducing fraud by 
requiring providers to identify debtors before providing an 
instructional course and corresponding certificate of completion. 
Another benefit of this rule is clarifying providers' responsibility to 
use their best efforts in assisting individuals with limited English 
proficiency by providing services in the client's language or referring 
them to providers who can provide services in the client's language. 
These benefits justify the rule's costs in complying with Congress' 
mandate that a list of approved providers be established. Public Law 
No. 109-8, section 106(e)(1).

Executive Order 13132

    This rule will not have a substantial direct effect 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 have 
been approved by OMB in accordance with the Paperwork Reduction Act of 
1995, 44 U.S.C. 3501 to 3520, and assigned OMB control number 1105-0085 
for form EOUST-DE1, the ``Application for Approval as a Provider of a 
Personal Financial Management Instructional Course.'' The Department 
notes that full notice and comment opportunities were provided to the 
general public through the Paperwork Reduction Act process, and that 
the application and associated requirements were modified to take into 
account the concerns of those who commented in this process.

Regulatory Flexibility Act

    In accordancewith the Regulatory Flexibility Act (5 U.S.C. 605(b)), 
the Director has reviewed this rule and by approving it certifies that 
it will not have a significant economic impact on a substantial number 
of small entities. This certification is based upon the fact that 
applicants should incur minimal costs in completing the application as 
discussed above in the Executive Order 12866 certification.

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. 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 ($100 million). Therefore, 
no actions were deemed necessary under the provisions of the Unfunded 
Mandates Reform Act of 1995.

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, 5 U.S.C. 
801 et seq. This rule will not result in an annual effect on the 
economy of $100 million or more; a major increase in costs or prices; 
or significant adverse effects on competition, employment, investment, 
productivity, and

[[Page 67438]]

innovation; or on the ability of United States-based companies to 
compete with foreign-based companies in domestic and export markets.

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 United States Trustee to approve providers of a personal 
financial management instructional course. The United States Trustee 
will not share this information with any other entity unless authorized 
under the Privacy Act, 5 U.S.C. 552a et seq. EOUST has published a 
System of Records Notice that delineates the routine use exceptions 
authorizing disclosure of information. 71 FR 59818, 59827 (Oct. 11, 
2006), JUSTICE/UST-005, Credit Counseling and Debtor Education Files 
and Associated Records.
    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 section 7701 of 
title 31, United States Code. 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 and 
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 proposed to 
be 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, 552; 11 U.S.C. 109(h), 111, 521(b), 
727(a)(11), 1141(d)(3); 1202; 1302; 1328(g), 28 U.S.C. 509, 510, 
586, 589b.

    2. Sections 58.25 through 58.27 are revised to read as follows:


Sec.  58.25  Definitions

    (a) The following definitions apply to sections 58.25 through and 
including 58.36 of this Part, as well as the applications and other 
materials providers submit in an effort to establish they meet the 
requirements necessary to become an approved provider of a personal 
financial management instructional course.
    (b) These terms shall have these meanings:
    (1) The term ``accreditation'' means the accreditation that an 
accrediting organization bestows upon a provider because the 
accrediting organization has determined the provider meets or exceeds 
all the accrediting organization's standards;
    (2) The term ``accrediting organization'' means either an entity 
that provides accreditation to providers or provides certification to 
instructors, provided, however, that an accrediting organization shall:
    (i) Not be a provider or affiliate of any provider; and
    (ii) Be deemed acceptable by the United States Trustee;
    (3) The term ``affiliate'' means:
    (i) Every entity that is an affiliate of the provider, as the term 
``affiliate'' is defined in 11 U.S.C. 101(2), except that the word 
``provider'' shall be substituted for the word ``debtor'' in 11 U.S.C. 
101(2);
    (ii) Each of a provider's officers and each of a provider's 
directors; and
    (iii) Every relative of a provider's officers and every relative of 
a provider's directors;
    (4) The term ``application'' means the application and related 
forms, including appendices, approved by the Office of Management and 
Budget as form EOUST-DE1, Application for Approval as a Provider of a 
Personal Financial Management Instructional Course, as it shall be 
amended from time to time;
    (5) The term ``approved list'' means the list of providers 
currently approved by a United States Trustee under 11 U.S.C. 111 as 
currently published on the United States Trustee Program's Internet 
site on the United States Department of Justice's Internet site;
    (6) The term ``approved provider'' means a provider currently 
approved by a United States Trustee under 11 U.S.C. 111 as an approved 
provider of a personal financial management instructional course 
eligible to be included on one or more lists maintained under 11 U.S.C. 
111(a)(1);
    (7) The term ``certificate'' means the document an approved 
provider shall provide to a debtor after the debtor completes an 
instructional course;
    (8) The term ``debtor'' shall have the meaning given that term in 
11 U.S.C. 101(13);
    (9) The term ``Director'' means the person designated or acting as 
the Director of the Executive Office for United States Trustees;
    (10) The term ``effective instruction'' means the actual receipt of 
an instructional course by a debtor from an approved provider, and all 
other applicable services, rights, and protections specified in:
    (i) 11 U.S.C. 111; and
    (ii) This rule;
    (11) The term ``entity'' shall have the meaning given that term in 
11 U.S.C. 101(15);
    (12) The terms ``fee'' and ``fee policy'' each mean the aggregate 
of all fees an approved provider charges debtors for providing an 
instructional course; ``fee policy'' shall also mean the objective 
criteria the provider uses in determining whether to waive or reduce 
any fee;
    (13) The term ``final decision'' means the determination issued by 
the Director based upon the review of the United States Trustee's 
decision either to deny a provider's application or to remove an 
approved provider from the approved list;
    (14) The term ``financial benefit'' means any interest equated with 
money or its equivalent, including, but not limited to, stock, bonds, 
other investments, income, goods, services, or receivables;
    (15) The term ``governmental unit'' shall have the meaning given 
that term in 11 U.S.C. 101(27);
    (16) The term ``independent contractor'' means a person or entity 
who provides any goods or services to an approved provider other than 
as an employee and as to whom the approved provider does not:
    (i) Direct or control the means or methods of delivery of the goods 
or services being provided;
    (ii) Make financial decisions concerning the business aspects of 
the goods or services being provided; and
    (iii) Have any common employees;
    (17) The term ``instructional course'' means a course in personal 
financial management that is approved by the United States Trustee 
under 11 U.S.C. 111 and this rule, including the learning materials and 
methodologies in 28 CFR 58.33(f), which is to be taken and completed by 
the debtor after the filing of a bankruptcy petition and before 
receiving a discharge under 11 U.S.C. 727(a)(11), 1141(d)(3)(C) or 
1328(g)(1);
    (18) The term ``instructor'' means an individual who teaches, 
presents or explains substantive instructional course materials to 
debtors, whether provided in person, by telephone, or through the 
Internet;
    (19) The term ``languages offered'' means every language other than 
English in which an approved provider offers an instructional course;
    (20) The term ``legal advice'' shall have the meaning given that 
term in 11 U.S.C. 110(e)(2);
    (21) The term ``limited English proficiency'' means, alternatively:
    (i) An inability to speak, read, write, or understand the English 
language; or

[[Page 67439]]

    (ii) The use primarily of a language other than English in a 
person's daily affairs;
    (22) The term ``locator'' means any entity that assists a 
prospective debtor in finding an approved provider for the purpose of 
receiving an instructional course, unless such entity is the approved 
provider proposing to provide an instructional course to the debtor;
    (23) The term ``material change'' means, alternatively, any change:
    (i) In the name, structure, principal contact, management, 
staffing, physical location, instructional course, fee policy, or 
method of delivery of an approved provider; or
    (ii) That renders inapplicable, inaccurate, incomplete, or 
misleading any statement a provider previously made:
    (A) In its application or related materials; or
    (B) To the United States Trustee;
    (24) The term ``method of delivery'' means one or more of the 3 
methods by which an approved provider can provide some component of an 
instructional course to debtors, including:
    (i) ``In person'' delivery, which applies when a debtor primarily 
receives an instructional course at a physical location with an 
instructor physically present in that location, and with the instructor 
providing oral and/or written communication to the debtor at the 
facility;
    (ii) ``Telephone'' delivery, which applies when a debtor primarily 
receives an instructional course by telephone; and
    (iii) ``Internet'' delivery, which applies when a debtor primarily 
receives an instructional course through an Internet Web site;
    (25) The term ``notice'' in 28 CFR 58.36 means the written 
communication from the United States Trustee to a provider that its 
application to become an approved provider has been denied or to an 
approved provider that it is being removed from the approved list;
    (26) The term ``provider''shall mean any entity that is applying 
under this rule for United States Trustee approval to be included on a 
publicly available list in one or more United States district courts, 
as authorized by 11 U.S.C. 111(a)(1), and shall also mean, whenever 
appropriate, an approved provider;
    (27) The term ``referral fees'' means money or any other valuable 
consideration paid or transferred between an approved provider and 
another entity in return for that entity, directly or indirectly, 
identifying, referring, securing, or in any other way encouraging any 
debtor to receive an instructional course from the approved provider; 
provided, however, that ``referral fees'' shall not include fees paid 
to any locator;
    (28) The term ``relative'' shall have the meaning given that term 
in 11 U.S.C. 101(45);
    (29) The term ``request for review'' means the written 
communication from a provider to the Director seeking review of the 
United States Trustee's decision either to deny the provider's 
application or to remove the provider from the approved list;
    (30) The term ``state'' means state, commonwealth, district, or 
territory of the United States;
    (31) The term ``United States Trustee'' means, alternatively:
    (i) The Executive Office for United States Trustees;
    (ii) A United States Trustee appointed under 28 U.S.C. 581;
    (iii) A person acting as a United States Trustee;
    (iv) An employee of a United States Trustee; or
    (v) Any other entity authorized by the Attorney General to act on 
behalf of the United States under this rule.


Sec.  58.26  Procedures all providers shall follow when applying to 
become approved providers.

    (a) A provider applying to become an approved provider shall obtain 
an application, including appendices, from the United States Trustee.
    (b) The provider shall complete the application, including its 
appendices, and attach the required supporting documents requested in 
the application.
    (c) The provider shall submit the original of the completed 
application, including completed appendices and the required supporting 
documents, and one additional copy of those, to the United States 
Trustee at the address specified on the application form.
    (d) The application shall be signed by a representative of the 
provider who is authorized under applicable law to sign on behalf of 
the applying provider.
    (e) The signed application, completed appendices, and required 
supporting documents shall be accompanied by a writing, signed by the 
signatory of the application and executed on behalf of the signatory 
and the provider, certifying the application does not:
    (1) Falsify, conceal, or cover up by any trick, scheme or device a 
material fact;
    (2) Make any materially false, fictitious, or fraudulent statement 
or representation; or
    (3) Make or use any false writing or document knowing the same to 
contain any materially false, fictitious, or fraudulent statement or 
entry.
    (f) The United States Trustee shall not consider an application 
that:
    (1) Is incomplete;
    (2) Fails to include the completed appendices or all of the 
required supporting documents; or
    (3) Is not accompanied by the certification identified in the 
preceding subsection.
    (g) The United States Trustee shall not consider an application on 
behalf of a provider, and it shall be returned via United States postal 
mail, if:
    (1) It is submitted by any entity other than the provider; or
    (2) Either the application or the accompanying certification is 
executed by any entity other than a representative of the provider who 
is authorized under applicable law to sign on behalf of the provider.
    (h) By the act of submitting an application, a provider consents to 
the release and disclosure of its name and contact information on the 
approved list should its application be approved.


Sec.  58.27  Automatic expiration of providers' status as approved 
providers.

    (a) Except as provided in 28 CFR 58.28(c), if an approved provider 
was not an approved provider immediately prior to the date it last 
obtained approval to be an approved provider, such an approved provider 
shall cease to be an approved provider 6 months from the date on which 
it was approved unless the United States Trustee approves an additional 
1-year period.
    (b) Except as provided in 28 CFR 58.28(c), if an approved provider 
was an approved provider immediately prior to the date it last obtained 
approval to be an approved provider, such a provider shall cease to be 
an approved provider 1 year from the date on which it was last approved 
to be an approved provider unless the United States Trustee approves an 
additional 1-year period.
    3. Sections 58.28 through 58.36 are added and read as follows:


Sec.  58.28  Procedures all approved providers shall follow when 
applying for approval to act as an approved provider for an additional 
1-year period.

    (a) To be considered for approval to act as an approved provider 
for an additional 1-year term, an approved provider shall reapply by 
complying with all the requirements specified for providers under 11 
U.S.C. 111, and under this rule.
    (b) Such a provider shall apply no later than 45 days prior to the 
expiration of its 6-month probationary period or annual period in order 
to be considered

[[Page 67440]]

for approval for an additional 1-year period, unless a written 
extension is granted by the United States Trustee.
    (c) An approved provider that has complied with all prerequisites 
for applying to act as an approved provider for an additional 1-year 
period may continue to operate as an approved provider while its 
application is under review by the United States Trustee, so long as 
either the application for an additional 1-year period was timely 
submitted, or a provider receives a written extension from the United 
States Trustee.


Sec.  58.29  Renewal for an additional 1-year period.

    If an approved provider's application for an additional 1-year 
period is approved, such renewal period shall begin to run from the 
later of:
    (a) The day after the expiration date of the immediately preceding 
approval period; or
    (b) The actual date of approval of such renewal by the United 
States Trustee.


Sec.  58.30  Mandatory duty of approved providers to notify United 
States Trustees of material changes.

    (a) An approved provider shall immediately notify the United States 
Trustee in writing of any material change.
    (b) An approved provider shall immediately notify the United States 
Trustee in writing of any failure by the approved provider to comply 
with any standard or requirement specified in 11 U.S.C. 111, this rule, 
or the terms under which the United States Trustee approved it to act 
as an approved provider.
    (c) An approved provider shall immediately notify the United States 
Trustee in writing of any of the following events:
    (1) Cessation of business by the approved provider or by any office 
of the provider, or withdrawal from any federal judicial district(s) 
where the approved provider is approved;
    (2) Any investigation of, or any administrative or judicial action 
brought against, the approved provider by any governmental unit;
    (3) Any action by a governmental unit or a court to suspend or 
revoke the approved provider's articles of incorporation, or any 
license held by the approved provider, or any authorization necessary 
to engage in business; or
    (4) A suspension, or action to suspend, any accreditation held by 
the approved provider, or any withdrawal by the approved provider of 
any application for accreditation, or any denial of any application of 
the approved provider for accreditation.
    (d) A provider shall notify the United States Trustee in writing if 
any of the changes identified in paragraphs (a) through (c) of this 
section occur while its application to become an approved provider is 
pending before the United States Trustee.
    (e) An approved provider whose name or other information appears 
incorrectly on the approved list shall immediately submit a written 
request to the United States Trustee asking that the information be 
corrected.


Sec.  58.31  Mandatory duty of approved providers to obtain prior 
permission from the United States Trustee before taking certain 
actions.

    (a) By accepting the designation to act as an approved provider, a 
provider agrees to obtain approval from the United States Trustee, 
prior to making any of the following changes:
    (1) The engagement of an independent contractor to provide an 
instructional course;
    (2) Any increase in the fees received from debtors for an 
instructional course or a change in the provider's fee policy;
    (3) Expansion into additional federal judicial districts;
    (4) Any changes to the method of delivery the approved provider 
employs to provide an instructional course; or
    (5) Any changes in the approved provider's instructional course.
    (b) A provider applying to become an approved provider shall also 
obtain approval from the United States Trustee before taking any action 
specified in paragraph (a) of this section. It shall do so by 
submitting an amended application. The provider's amended application 
shall be accompanied by a contemporaneously executed writing, signed by 
the signatory of the application, that makes the certifications 
specified in 28 CFR 58.26(e).
    (c) An approved provider shall not transfer or assign its United 
States Trustee approval to act as an approved provider.


Sec.  58.32  Criteria providers shall satisfy to become and remain 
approved providers.

    (a) To become an approved provider, a provider must affirmatively 
establish, to the satisfaction of the United States Trustee, that the 
provider at the time of approval:
    (1) Satisfies every requirement of this rule; and
    (2) Provides effective instruction to its debtors.
    (b) To remain an approved provider, an approved provider shall 
affirmatively establish, to the satisfaction of the United States 
Trustee, that the approved provider:
    (1) Has satisfied every requirement of this rule;
    (2) Has provided effective instruction to its debtors; and
    (3) Will continue to satisfy both paragraphs (b)(1) and (2) of this 
section in the future.


Sec.  58.33  Minimum qualifications providers shall meet to become and 
remain approved providers.

    To meet the minimum qualifications set forth in 28 CFR 58.32, and 
in addition to the other requirements set forth in this rule, providers 
and approved providers shall comply with paragraphs (a) through (n) of 
this section on a continuing basis:
    (a) Compliance with all laws. A provider shall comply with all 
applicable laws and regulations of the United States and each state in 
which the provider provides an instructional course including, without 
limitation, all laws governing licensing and registration.
    (b) Prohibition on legal advice. A provider shall not provide legal 
advice.
    (c) Ethical standards. A provider shall:
    (1) Ensure no member of the board of directors or trustees, officer 
or supervisor is a relative of an employee of the United States 
Trustee, a trustee appointed under 11 U.S.C. 586(a)(1) or (b) for any 
federal judicial district where the provider is providing or is 
applying to provide an instructional course, a federal judge in any 
federal judicial district where the provider is providing or is 
applying to provide an instructional course, or a federal court 
employee in any federal judicial district where the provider is 
providing or is applying to provide an instructional course;
    (2) Not enter into any referral agreement or receive any financial 
benefit that involves the provider paying to or receiving from any 
entity or person referral fees for the referral of debtors to or by the 
provider, except payments to any locator; and
    (3) Not enter into agreements involving an instructional course 
that create a conflict of interest.
    (d) Instructor training, certification and experience. A provider 
shall:
    (1) Use only instructors who possess adequate experience providing 
an instructional course, which shall mean that each instructor either:
    (i) Holds one of the certifications listed below and who has 
complied with all continuing education requirements necessary to 
maintain that certification:
    (A) Certified as a Certified Financial Planner;

[[Page 67441]]

    (B) Certified as a credit counselor by an accrediting organization;
    (C) Registered as a Registered Financial Consultant; or
    (D) Certified as a Certified Public Accountant; or
    (ii) Has successfully completed a course of study or worked a 
minimum of 6 months in a related area such as personal finance, 
budgeting, or credit or debt management. A course of study must include 
training in personal finance, budgeting, or credit or debt management. 
An instructor shall also receive annual continuing education in the 
areas of personal finance, budgeting, or credit or debt management;
    (2) Demonstrate adequate experience, background, and quality in 
providing an instructional course, which shall mean that, at a minimum, 
the provider shall either:
    (i) Have experience in providing an instructional course for the 2 
years immediately preceding the relevant application date; or
    (ii) For each office providing an instructional course, employ at 
least one supervisor who has met the qualifications in paragraph 
(d)(2)(i) of this section for no less than 2 of the 5 years preceding 
the relevant application date; and
    (3) If offering any component of an instructional course by a 
telephone or Internet method of delivery, use only instructors who, in 
addition to all other requirements, demonstrate sufficient experience 
and proficiency in providing such an instructional course by those 
methods of delivery, including proficiency in employing verification 
procedures to ensure the person receiving the instructional course is 
the debtor, and to determine whether the debtor has completely received 
an instructional course.
    (e) Use of the telephone and the Internet to deliver a component of 
an instructional course. A provider shall:
    (1) Not provide any debtor a diminished instructional course 
because the debtor receives any portion of the instructional course by 
telephone or Internet;
    (2) Confirm the identity of the debtor before commencing an 
instructional course by telephone or Internet by:
    (i) Obtaining one or more unique personal identifiers from the 
debtor and assigning an individual access code, user ID, or password at 
the time of enrollment;
    (ii) Requiring the debtor to provide the appropriate access code, 
user ID, or password, and also one or more of the unique personal 
identifiers during the course of delivery of the instructional course; 
and
    (iii) Employing adequate means to measure the time spent by the 
debtor to complete the instructional course.
    (f) Learning materials and methodologies. A provider shall provide 
learning materials to assist debtors in understanding personal 
financial management and that are consistent with 11 U.S.C. 111, and 
this rule, 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; and
    (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; and
    (iv) Saving for emergencies, for periodic payments, and for 
financial goals;
    (3) Wise use of credit, which consists of the following:
    (i) Identifying the types, sources, and costs of credit and loans;
    (ii) Identifying debt warning signs;
    (iii) Discussing appropriate use of credit and alternatives to 
credit use; and
    (iv) Checking a credit rating;
    (4) Consumer information, which consists of the following:
    (i) Identifying public and non-profit resources for consumer 
assistance; and
    (ii) Identifying applicable consumer protection laws and 
regulations, such as those governing correction of a credit record and 
protection against consumer fraud; and
    (5) Coping with unexpected financial crisis, which consists of the 
following:
    (i) Identifying alternatives to additional borrowing in times of 
unanticipated events; and
    (ii) Seeking advice from public and private service agencies for 
assistance.
    (g) Course procedures.
    (1) Generally, a provider shall:
    (i) Ensure the instructional course contains sufficient learning 
materials and teaching methodologies so that the debtor receives a 
minimum of two hours of instruction, regardless of the method of 
delivery of the course;
    (ii) Use its best efforts to collect from each debtor a completed 
course evaluation at the end of the instructional course. At a minimum, 
the course evaluation shall include the information contained in 
Appendix F of the application to evaluate the effectiveness of the 
instructional course;
    (2) For an instructional course delivered in person, the provider 
shall:
    (i) Ensure that an instructor is present to instruct and interact 
with debtors; and
    (ii) Limit class size to ensure an effective presentation of the 
instructional course materials;
    (3) For instructional courses delivered by the telephone, the 
provider shall:
    (i) Ensure an instructor is telephonically present to instruct and 
interact with debtors;
    (ii) Provide learning materials to debtors before the telephone 
instructional course session;
    (iii) Incorporate tests into the curriculum that support the 
learning materials, ensure completion of the course, and measure 
comprehension;
    (iv) Ensure review of tests prior to the completion of the 
instructional course; and
    (v) Ensure direct oral communication from an instructor by 
telephone or in person with all debtors who fail to complete the test 
in a satisfactory manner or who receive less than a 70% score;
    (5) For instructional courses delivered through the Internet, the 
provider shall:
    (i) Comply with sections 58.33(g)(3)(iii), (iv), and (v); and
    (ii) Respond to a debtor's questions or comments within one 
business day.
    (h) Services to hearing and hearing-impaired debtors. A provider 
shall furnish toll-free telephone numbers for both hearing and hearing-
impaired debtors whenever telephone communication is required. The 
provider shall provide telephone amplification, sign language services, 
or other communication methods for hearing-impaired debtors.
    (i) Language services to debtors. A provider shall communicate, in 
writing and orally, with debtors in the languages of the major 
population groups served by the provider. The provider shall provide or 
arrange for bilingual personnel, interpreters, or the use of 
communication technology, as needed, in such languages. The provider 
shall inform any debtor with limited English proficiency of the 
languages offered in providing an instructional course. Whenever a 
provider cannot provide an instructional course to a debtor due to the 
debtor's limited English proficiency, the provider should employ its 
best efforts to expeditiously direct such person to one or more

[[Page 67442]]

approved providers that can provide an instructional course in the 
language of the debtor's choice.
    (j) Services to debtors with special needs. A provider that 
provides any portion of its instructional course in person shall comply 
with all federal, state and local laws governing facility 
accessibility. A provider shall also provide or arrange for 
communication assistance for debtors with special needs who have 
difficulty making their service needs known.
    (k) Mandatory disclosures to debtors. Prior to providing any 
information to or obtaining any information from a debtor, and prior to 
delivering an instructional course, a provider shall disclose:
    (1) The provider's fee policy;
    (2) The provider's policies enabling debtors to obtain an 
instructional course for free or at reduced rates based upon the 
debtor's lack of ability to pay;
    (3) The instructors' qualifications;
    (4) The provider's policy prohibiting it from paying or receiving 
referral fees for the referral of debtors, except to any locator;
    (5) The provider's obligation to provide a certificate to the 
debtor promptly upon the completion of an instructional course;
    (6) The fact that the provider might disclose debtor information to 
the United States Trustee in connection with the United States 
Trustee's oversight of the provider, or during the investigation of 
complaints, during on-site visits, or during quality of service 
reviews;
    (7) The fact that the United States Trustee has reviewed only the 
provider's instructional course, and the fact that the United States 
Trustee has neither reviewed nor approved any other services the 
provider provides to debtors; and
    (8) The fact that a debtor will only receive a certificate if the 
debtor completes an instructional course.
    (l) Complaint procedures. A provider shall employ complaint 
procedures that adequately respond to debtors' concerns.
    (m) Provider records. A provider shall prepare and retain records 
that enable the United States Trustee to evaluate whether the provider 
is providing effective instruction and acting in compliance with all 
applicable laws and this rule. All records, including documents bearing 
original signatures, shall be maintained in either hard copy form or 
electronically in a format widely available commercially. Records that 
the provider shall prepare and retain for a minimum of two years, and 
permit review of by the United States Trustee upon request, shall 
include:
    (1) Upon the filing of an application for probationary approval, 
all information requested by the United States Trustee as an estimate, 
projected to the end of the probationary period, in the form requested 
by the United States Trustee;
    (2) After probationary or annual approval, and for so long as the 
provider remains on the approved list, semi-annual reports of 
historical data (for the periods ending June 30 and December 31 of each 
year), of the type and in the form requested by the United States 
Trustee; these reports shall be submitted within 30 days of the end of 
the applicable periods specified in this paragraph;
    (3) Records concerning the delivery of services to debtors with 
limited English proficiency and special needs, and to hearing-impaired 
debtors, including records:
    (i) Of the number of such debtors;
    (ii) Of which languages are offered;
    (iii) Detailing the provider's best efforts to provide services to 
such debtors; and
    (iv) Supporting any justification if the provider did not provide 
services to such debtors;
    (4) Records concerning the delivery of an instructional course to 
debtors for free or at reduced rates based upon the debtor's lack of 
ability to pay, including records of the number of such debtors and the 
extent to which the provider voluntarily waived all or part of its fees 
under 28 CFR 58.34(c);
    (5) Records of complaints and the provider's responses thereto;
    (6) Records that enable the provider to verify the authenticity of 
certificates their debtors file in bankruptcy cases; and
    (7) Records that enable the provider to issue replacement 
certificates.
    (n) Additional minimum requirements. A provider shall:
    (1) Provide records to the United States Trustee upon request;
    (2) Cooperate with the United States Trustee by allowing scheduled 
and unscheduled on-site visits, complaint investigations, or other 
reviews of the provider's qualifications to be an approved provider;
    (3) Cooperate with the United States Trustee by promptly responding 
to questions or inquiries from the United States Trustee;
    (4) Assist the United States Trustee in identifying and 
investigating suspected fraud and abuse by any party participating in 
the instructional course or bankruptcy process;
    (5) Take no action that would limit, inhibit, or prevent a debtor 
from bringing an action or claim for damages against a provider under 
any applicable law, including but not limited to 11 U.S.C. 111(g)(2);
    (6) Refer debtors seeking an instructional course only to providers 
that have been approved by a United States Trustee to provide such 
services;
    (7) Comply with the United States Trustee's directions on approved 
advertising, including without limitation those set forth in appendix A 
to the application;
    (8) Not disclose or provide to a credit reporting agency any 
information concerning whether a debtor has received or sought 
instruction concerning personal financial management from a provider;
    (9) Not expose the debtor to commercial advertising as part of or 
during the debtor's receipt of an instructional course, and never 
market or sell financial products or services during the instructional 
course; provided, however, this provision does not prohibit a provider 
from generally discussing all available financial products and 
services; and
    (10) Not sell information about any debtor to any third party 
without the debtor's prior written permission.


Sec.  58.34  Additional minimum requirements to become and remain 
approved providers relating to fees.

    (a) If a fee for an instructional course is charged by a provider, 
such fee must be reasonable:
    (1) A fee of $50 or less for an instructional course is presumed to 
be reasonable and a provider need not obtain prior approval of the 
United States Trustee to charge such a fee;
    (2) A fee exceeding $50 for an instructional course is not presumed 
to be reasonable and a provider must obtain prior approval from the 
United States Trustee to charge such a fee. The provider bears the 
burden of establishing that its proposed fee is reasonable. At a 
minimum, the provider must demonstrate that its cost for delivering the 
instructional course justifies the fee; and
    (3) The United States Trustee shall review the amount of the fee 
set forth in paragraphs (a)(1) and (2) of this section periodically, 
but not less than every four years, to determine the reasonableness of 
the fee. Fee amounts and any revisions thereto shall be determined by 
current costs, using a method of analysis consistent with widely 
accepted accounting principles and practices, and calculated in 
accordance with the provisions of federal law as applicable. Fee 
amounts and any revisions thereto

[[Page 67443]]

shall be published in the Federal Register.
    (b) A provider shall waive the fee whenever a debtor demonstrates a 
lack of ability to pay the fee. A debtor shall be deemed to have 
demonstrated a lack of ability to pay the fee if the debtor's household 
current income is less than 150% of the income of the official poverty 
line (as defined by the Office of Management and Budget, and revised 
annually in accordance with section 673(2) of the Omnibus Budget 
Reconciliation Act of 1981) as identified in the Poverty Guidelines 
updated periodically in the Federal Register by the United States 
Department of Health and Human Services applicable to a family or 
household of the size involved in the fee decision.
    (c) Notwithstanding the requirements of paragraph (b) of this 
section, a provider may also waive fees based upon other 
considerations, including, but not limited to:
    (1) The debtor's net worth;
    (2) The percentage of the debtor's income from government 
assistance programs;
    (3) Whether the debtor is receiving pro bono legal services in 
connection with a bankruptcy case; or
    (4) If the combined current monthly income, as defined in 11 U.S.C. 
101(10A), of the debtor and his or her spouse, when multiplied times 
12, is equal to or less than the amounts set forth in 11 U.S.C. 
707(b)(7).
    (d) A provider shall not link a debtor's purchase of an 
instructional course to the purchase of any other service offered by 
the provider.
    (e) A provider who is also a chapter 13 standing trustee may only 
provide the instructional course to debtors in cases in which the 
trustee is appointed to serve and may not charge any fee to those 
debtors for the instructional course. A standing chapter 13 trustee may 
not require debtors in cases administered by the trustee to obtain the 
instructional course from the trustee. Employees and affiliates of the 
standing trustee are also bound by the restrictions in this subsection.


Sec.  58.35  Additional minimum requirements to become and remain 
approved providers relating to certificates.

    (a) An approved provider shall deliver a certificate only to the 
debtor who took and completed the instructional course, except that an 
approved provider shall instead deliver a certificate to the attorney 
of a debtor who took and completed an instructional course if the 
debtor specifically requests that in writing.
    (b) An approved provider shall deliver a certificate to a debtor no 
later than three business days after the debtor completed an 
instructional course and after completion of a debtor course evaluation 
form that evaluates the effectiveness of the instructional course; 
however, the approved provider shall not withhold the issuance of a 
certificate because of a debtor's failure to submit an evaluation form, 
though the provider should make reasonable effort to ensure that 
debtors complete and submit course evaluation forms.
    (c) An approved provider shall not withhold the issuance of a 
certificate because of a debtor'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 approved provider cannot 
deny a certificate to a debtor if the debtor has completed the course 
as designed.
    (d) An approved provider shall issue certificates only in the form 
approved by the United States Trustee, and shall generate the form 
using the Certificate Generating System maintained by the United States 
Trustee.
    (e) An approved provider shall have sufficient computer 
capabilities to issue certificates from the United States Trustee's 
Certificate Generating System.
    (f) An approved provider shall not charge a separate fee for the 
issuance of a certificate or replacement certificate, unless:
    (1) The approved provider has disclosed such fee in writing before 
an instructional course is provided and before any payment is made by 
the debtor;
    (2) The approved provider obtains the written consent of the debtor 
before the debtor commences receiving an instructional course; and
    (3) Such fee is reasonable and otherwise complies with the waiver 
requirements of 28 CFR 58.34.
    (g) An approved provider shall issue a certificate to each debtor 
who completes an instructional course. Spouses receiving an 
instructional course jointly shall each receive a certificate.
    (h) An approved provider shall issue a replacement certificate to a 
debtor who requests one.
    (i) An approved provider shall not file certificates with the 
court.
    (j) Only an authorized officer, supervisor or employee of an 
approved provider shall issue a certificate, and an approved provider 
shall not transfer or delegate authority to issue certificates to any 
other entity.
    (k) An approved provider shall implement internal controls 
sufficient to prevent unauthorized issuance of certificates.
    (l) An approved provider shall ensure the signature affixed to a 
certificate is that of an officer, supervisor or employee authorized to 
issue the certificate, in accordance with paragraph (j) of this 
section, which signature shall be either:
    (1) An original signature; or
    (2) An electronic signature (in the form /s/ name of instructor); 
however, whenever a certificate is prepared for filing electronically 
with the court, a certificate with the instructor's original signature 
shall also be provided to the debtor.
    (m) An approved provider shall affix to the certificate the exact 
name under which the approved provider is incorporated or organized.
    (n) An approved provider shall identify on the certificate:
    (1) The specific federal judicial district requested by the debtor;
    (2) Whether an instructional course was provided in person, by 
telephone or via the Internet;
    (3) The date on which an instructional course was completed by the 
debtor; and
    (4) The name of the instructor that provided the instructional 
course.
    (o) An approved provider shall affix the debtor's full, accurate 
name to the certificate. If the instructional course is obtained by a 
debtor through a duly authorized representative, the certificate shall 
also set forth the name of the legal representative and legal capacity 
of that representative.


Sec.  58.36  Procedures for obtaining final agency action on United 
States Trustees' decisions to deny providers' applications and to 
remove approved providers from the approved list.

    (a) The United States Trustee shall remove an approved provider 
from the approved list whenever an approved provider requests its 
removal in writing.
    (b) The United States Trustee may issue a decision to remove an 
approved provider from the approved list, and thereby terminate the 
approved provider's authorization to provide an instructional course, 
at any time.
    (c) The United States Trustee may issue a decision to deny a 
provider's application or remove a provider from the approved list 
whenever the United States Trustee determines that the provider has 
failed to comply with the standards or requirements specified in 11 
U.S.C. 111, this rule, or the terms under which the United States 
Trustee designated it to act as an approved

[[Page 67444]]

provider, including, but not limited to, finding any of the following:
    (1) If any entity has suspended or revoked the provider's license 
to do business in any jurisdiction; or
    (2) Any United States district court has removed the provider under 
11 U.S.C. 111(e).
    (d) The United States Trustee shall provide to the provider in 
writing a notice of any decision either to:
    (1) Deny the provider's application; or
    (2) Remove the provider from the approved list.
    (e) The notice shall state the reason(s) for the decision and shall 
reference any documents or communications relied upon in reaching the 
denial or removal decision. To the extent authorized by law, the United 
States Trustee shall provide to the provider copies of any such 
documents that were not supplied to the United States Trustee by the 
provider. The notice shall be sent to the provider by overnight 
courier, for delivery the next business day.
    (f) Except as provided in paragraph (h) of this section, the notice 
shall advise the provider that the denial or removal decision shall 
become final agency action, and unreviewable, unless the provider 
submits in writing a request for review by the Director no later than 
20 calendar days from the date of the notice to the provider.
    (g) Except as provided in paragraph (h) of this section, the 
decision to deny a provider's application or to remove a provider from 
the approved list shall take effect upon:
    (1) The expiration of the provider's time to seek review from the 
Director, if the provider fails to timely seek review of a denial or 
removal decision; or
    (2) The issuance by the Director of a final written decision, if 
the provider timely seeks such review.
    (h) The United States Trustee may provide that a decision to remove 
a provider from the approved list is effective immediately and deny the 
provider the right to provide an instructional course whenever the 
United States Trustee finds any of the factors set forth in paragraphs 
(c)(1) or (2) of this section.
    (i) A provider's request for review shall be in writing and shall 
fully describe why the provider disagrees with the denial or removal 
decision, and shall be accompanied by all documents and materials the 
provider wants the Director to consider in reviewing the denial or 
removal decision. The provider shall send the original and one copy of 
the request for review, including all accompanying documents and 
materials, to the Office of the Director by overnight courier, for 
delivery the next business day. In order to be timely, a request for 
review shall be received at the Office of the Director no later than 20 
calendar days from the date of the notice to the provider.
    (j) The United States Trustee shall have 30 calendar days from the 
date of the provider's request for review to submit to the Director a 
written response regarding the matters raised in the provider's request 
for review. The United States Trustee shall provide a copy of this 
response to the provider by overnight courier, for delivery the next 
business day.
    (k) The Director may seek additional information from any party in 
the manner and to the extent the Director deems appropriate.
    (l) In reviewing the decision to deny a provider's application or 
to remove a provider from the approved list, the Director shall 
determine:
    (1) Whether the denial or removal decision is supported by the 
record; and
    (2) Whether the denial or removal decision constitutes an 
appropriate exercise of discretion.
    (m) Except as provided in paragraph (n) of this section, the 
Director shall issue a written final decision no later than 60 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 
deadline. The Director's final decision on the provider's request for 
review shall constitute final agency action.
    (n) Whenever the United States Trustee provides under paragraph (h) 
of this section that a decision to remove a provider from the approved 
list is effective immediately, the Director shall issue a written 
decision no later than 15 calender days from the receipt of the 
provider's request for review, unless the provider agrees to a longer 
period of time, which decision shall:
    (1) Be limited to deciding whether the determination that the 
removal decision should take effect immediately was supported by the 
record and an appropriate exercise of discretion;
    (2) Constitute final agency action only on the issue of whether the 
removal decision should take effect immediately; and
    (3) Not constitute final agency action on the ultimate issue of 
whether the provider should be removed from the approved list; after 
issuing the decision, the Director shall issue a written final decision 
in accordance with the requirements of paragraph (m) of this section.
    (o) In reaching a decision under paragraphs (m) or (n) of this 
section, the Director may specify a person to act as a reviewing 
official. 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, and such other duties as the 
Director shall prescribe in a particular case.
    (p) A provider that files a request for review shall bear its own 
costs and expenses, including counsel fees.
    (q) When a decision to remove a provider from the approved list 
takes effect, the provider shall:
    (1) Immediately cease providing an instructional course to debtors 
and shall not agree to provide an instructional course to debtors;
    (2) No later than 3 business days after the date of removal, issue 
all certificates to all debtors who completed an instructional course 
prior to the provider's removal from the approved list; and
    (3) No later than 3 business days after the date of removal, return 
all fees to debtors who had paid for an instructional course, but had 
not completely received them.
    (r) A provider must exhaust all administrative remedies before 
seeking redress in any court of competent jurisdiction.

    Dated: October 30, 2008.
Clifford J. White, III,
Director, Executive Office for United States Trustees.
 [FR Doc. E8-26550 Filed 11-13-08; 8:45 am]

BILLING CODE 4410-40-P