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Code · REGISTER · 2006-07-05 · Federal Energy Regulatory Commission, DOE · Rules and Regulations

Rules and Regulations. Correcting amendment

21,964 words·~100 min read·/register/2006/07/05/06-5955

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

BILLING CODE 4910-13-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 284 [Docket No. RM95-4-000] Revisions to Uniform System of Accounts, Forms, Statements and Reporting Requirements for Natural Gas Companies; Correction AGENCY: Federal Energy Regulatory Commission, DOE. ACTION: Correcting amendment. SUMMARY: This document contains a correction to a final rule (RM95-4-000) that the Federal Energy Regulatory Commission published in the **Federal Register** on October 11, 1995 (60 FR 53020).
That action amended the Commission's Uniform System of Accounts. DATES: *Effective Date:* July 5, 2006. FOR FURTHER INFORMATION CONTACT: Sandra J. Delude, Federal Energy Regulatory Commission,
(202)502-8583. SUPPLEMENTARY INFORMATION: Background The final regulations that are the subject of these corrections amended the Commission's Uniform System of Accounts, its forms, and its reports and statements for natural gas companies. Need for Correction As published, the final regulations contain an error which is misleading and needs to be clarified. List of Subjects in 18 CFR Part 284 Continental shelf, Natural gas, Reporting and recordkeeping requirements. Accordingly, 18 CFR part 284 is corrected by making the following correcting amendment: PART 284—CERTAIN SALES AND TRANSPORTATION OF NATURAL GAS UNDER THE NATURAL GAS POLICY ACT OF 1978 AND RELATED AUTHORITIES 1. The authority citation for part 284 continues to read as follows: Authority: 18 U.S.C. 717-717w, 3301-3432, 42 U.S.C. 7201-7352; 43 U.S.C 1331-1356. § 284.126 [Amended] 2. In § 284.126, paragraph
(d)is removed. Magalie R. Salas, Secretary. [FR Doc. E6-10468 Filed 7-3-06; 8:45 am] BILLING CODE 6717-01-P SOCIAL SECURITY ADMINISTRATION 20 CFR Part 422 RIN 0960-AE89 Federal Old-Age, Survivors, and Disability Insurance and Supplemental Security Income; Collection of Overdue Program and Administrative Debts Using Federal Salary Offset AGENCY: Social Security Administration (SSA). ACTION: Final rules. SUMMARY: The proposed rules published in the **Federal Register** on March 13, 2006 at 71 FR 12648, are adopted as final with no changes. These regulations modify our regulations dealing with the recovery of benefit overpayments under titles II and XVI of the Social Security Act (the Act), as well as recovery of administrative debts owed to us. Specifically, we are modifying our regulations to implement statutory authority for the use of Federal Salary Offset (FSO). FSO is a process whereby the salary-paying agency withholds and pays to us up to 15 percent of the debtor's disposable pay until the debt has been repaid. In the case of title II program overpayment debts, we would apply FSO to collect only overpayments made to a person after he or she attained age 18, and we would pursue FSO after that person ceases to be a beneficiary and we determine that the overpayment is otherwise unrecoverable under section 204 of the Act. In the case of title XVI program overpayment debts, these same restrictions apply, but we must determine the overpayment to be otherwise unrecoverable under section 1631(b) of the Act, rather than section 204 of the Act. FSO is only applicable if the debtor is a Federal employee. DATES: These regulations are effective August 4, 2006. FOR FURTHER INFORMATION CONTACT: Suzanne DiMarino, Social Insurance Specialist, Office of Regulations, Social Security Administration, Room 107 Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 21235-6401,
(410)965-1769, or TTY
(410)966-5609. For information on eligibility or filing for benefits, call our national toll-free number, 1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet web site, Social Security Online, at *http://www.socialsecurity.gov.* SUPPLEMENTARY INFORMATION: Electronic Version The electronic file of this document is available on the date of publication in the **Federal Register** at *http://www.gpoaccess.gov/fr/index.html.* Background Section 204 of the Act prescribes many of the methods that we may use to recover Social Security benefits overpaid under title II of the Act (title II program overpayments), as distinguished from the methods that we may use to collect administrative debts owed the agency that are recoverable under other statutory authority. Until 1994, we were authorized to recover title II program overpayments only by adjusting future title II benefits payable to the overpaid individual or to others on the earnings record on which the overpayment was made, by direct recovery from the overpaid person (or the overpaid person's estate, if deceased), or by offset against Federal income tax refunds due from the Department of the Treasury. Amendments to section 204 of the Act and other statutes by section 5 of Public Law 103-387
(1994)and section 31001(z)(2) of Public Law 104-134
(1996)permit us to use several debt collection procedures that have been available to other Federal agencies by statute since 1982, but that we had been precluded from using to recover title II program overpayments. Among other things, these procedures include recovering debts by FSO under 5 U.S.C. 5514 and by offset under 31 U.S.C. 3716 against other Federal payments to which the debtor is entitled. Under section 204(f) of the Act (42 U.S.C. 404(f)), these additional debt collection procedures may be used to recover title II program overpayments only if the overpayment was made to a person after he or she attained age 18 and the overpayment has been determined to be otherwise unrecoverable under section 204 of the Act after the overpaid person ceases to be a beneficiary under title II of the Act. Section 1631(b) of the Act prescribes many of the methods we may use to recover supplemental security income
(SSI)overpayments that occur under title XVI of the Act. Until enactment of Public Law 106-169 on December 14, 1999, we were not authorized to use certain methods found in 31 U.S.C. Chapter 37 and 5 U.S.C. 5514 to recover SSI overpayments. Section 203 of Public Law 106-169 amended section 1631(b) of the Act to permit recovery of SSI overpayments using several of the debt management practices that have been available for the recovery of title II program overpayments. Among other things, these practices include using FSO to recover debts. Under section 1631(b)(4)(B) of the Act, these additional methods may be used only if the SSI overpayment was made to a person after he or she attained age 18 and the overpayment has been determined to be otherwise unrecoverable under section 1631(b) of the Act after the overpaid person ceases to be a beneficiary under title XVI of the Act. For both title II and title XVI program overpayments, FSO is only applicable if the debtor is a Federal employee. Before we can begin to use FSO to recover debts, we must issue regulations that comply with standards prescribed in the regulations of the Office of Personnel Management (OPM). See 5 U.S.C. 5514(b) and 5 CFR 550.1104. The Department of the Treasury administers FSO as part of the Treasury Offset Program, the Government-wide process for offsetting Federal payments to collect delinquent debts owed by debtors to the Federal Government. (See 31 CFR 285.7) Our current regulations at 20 CFR part 422, subpart D, address the procedures required for participation in the Treasury Offset Program. We are amending appropriate sections of those regulations to comply with the standards prescribed in the OPM regulations and make other changes. Explanation of Changes Subject to certain exceptions, 5 U.S.C. 5514(a) requires us to do the following before initiating FSO to collect a debt that a Federal employee owes: • Send written notice to the debtor at least 30 days before taking FSO action explaining the nature and amount of the debt, our intention to collect by deduction from Federal pay, and the debtor's rights described below; • Give the debtor an opportunity to inspect and copy our records relating to the debt; • Give the debtor an opportunity to enter into a written agreement with us establishing a repayment schedule; and • Give the debtor the opportunity for a hearing on the existence and amount of the debt and any payment schedule mentioned in the notice. According to 5 U.S.C. 5514(a)(2), the hearing must be conducted by a person who is not under the supervision or control of the Commissioner of Social Security or by an administrative law judge. The OPM regulations on FSO impose these and several additional requirements. Our current regulations on administrative offset against Federal payments due the debtor already reflect many of the requirements of 5 U.S.C. 5514 and the OPM regulations. We are revising 20 CFR 422.301, 422.310 and 422.317 so that our regulations permit the use of FSO and meet the requirements of the statute and OPM standards and to make other changes as set forth below. In addition, we are adding a new section 20 CFR 422.303 to meet OPM standards. Clarifying the Scope of 20 CFR Part 422, Subpart D We are revising § 422.301(a) and (b), adding a new paragraph
(c)and deleting information from § 422.306(b) to clarify that subpart D of part 422 does not apply to administrative debts incurred by our employees, including overpayments of pay and allowances. As authorized by section 106(b) of Public Law 103-296, we have applied the rules of the Department of Health and Human Services in 45 CFR part 30 that were in effect immediately before March 31, 1995. The rules in 45 CFR part 30 allow us to collect administrative debts owed by our employees by withholding money payable to our employees by the U.S. Government. Amounts available for such withholding include the Federal salaries of our employee/debtors. For this reason, the current provisions in subpart D of 20 CFR part 404 on Treasury offset and the FSO provisions described in these final rules do not apply to administrative debts owed by our employees. Restrictions on the Use of FSO In § 422.301(c), we explain that we will not use FSO to recover an employee's debt while: • The employee's title II disability benefits are stopped during the reentitlement period, under 20 CFR 404.1592a(a)(2) of this chapter; • The employee's Medicare entitlement is continued because the individual is deemed to be entitled to title II disability benefits under section 226(b) of the Social Security Act; or • The employee is participating in the Ticket to Work and Self-Sufficiency Program and the ticket is in use as described in 20 CFR 411.170 through 411.225. Charging Interest, Late Payment Penalties, and Administrative Costs When Authorized by SSA Regulations OPM regulations require that our regulations on FSO contain a provision about charging the debtor with interest, late payment penalties, and administrative costs of collection on the delinquent debt pursuant to 31 U.S.C. 3717. See 5 CFR 550.1104(n). We are authorized, but are not required, to impose these charges on a debtor. See 42 U.S.C. 404(f) and 1383(b)(4). In order to comply with 5 CFR 550.1104(n), we are adding § 422.303 to subpart D. This new section provides that we will impose these charges when authorized by specific regulations that we will issue in accordance with the Federal Claims Collection Standards
(FCCS)at 31 CFR 901.9. Notice and Procedures for Initiating FSO In § 422.310, we describe generally the procedures we use to initiate recovery of debts under the Treasury Offset Program and the notice required before we initiate recovery. Paragraph (a)(1) states that, if the debtor is a Federal employee, we will recover overdue debts through this program by reducing the debtor's Federal “disposable pay,” defined in 5 CFR 550.1103, and that such action is called “Federal salary offset” in part 422, subpart D. Paragraph (a)(2) states that we will use FSO to collect overdue program debts from our employees and overdue program and administrative debts from employees of other Federal agencies. We are deleting the specific dollar amount in current § 422.310
(b)to allow more flexibility in the regulation to accommodate changes in the dollar threshold amount as required by the Treasury. Currently, the minimum dollar threshold amount for FSO is $100. Paragraph
(c)of § 422.310 describes the written notice requirements for initiating recovery under the Treasury Offset Program. We are revising the paragraph to include provisions required for FSO. The notice explains the nature and amount of the debt, our determination that the debt is overdue, our intention to refer the debt for administrative offset (including FSO if the debtor is a Federal employee), and the frequency and amount of any FSO deduction. The notice also explains that the debtor has the following rights: • To inspect and copy our records relating to the debt; • To request review of the existence or amount of the debt or our right to collect it and any payment schedule for FSO stated in the notice; and • To request an installment payment plan. The notice also informs the debtor that we will refer the debt to the Department of the Treasury for administrative offset at the expiration of 60 calendar days after the date of the notice unless, within that period, the debtor pays the full amount of the debt, requests review of the debt or the FSO payment schedule stated in the notice, or requests an installment payment plan. Finally, the notice advises that, if the debtor furnishes false or frivolous statements, representations, or evidence, the debtor may be subject to civil or criminal penalties and (if the debtor is a Federal employee) appropriate disciplinary actions. We are adding paragraph (c)(9), which explains that we will refer the debt for FSO at the expiration of not less than 30 calendar days after the date of the notice in accordance with 5 U.S.C. 5514(a), unless the debtor takes the action described above within that period. We are adding paragraph
(d)to § 422.310 to address the amount, frequency and duration of FSO deductions and hearing request timeframes. This new paragraph explains that deductions from a debtor's Federal salary will not exceed 15% of the debtor's disposable pay every payday. FSO will begin no sooner than the first payday following 30 calendar days after the date of the notice to the debtor and will continue until we recover the full amount of the debt, the debt is otherwise resolved, or the debtor ceases to be a Federal employee, whichever occurs first. We are adding paragraph
(e)to § 422.310 regarding refunds. Paragraph
(e)explains that we will promptly refund to the debtor any amounts collected that the debtor does not owe. Such refunds will not bear interest unless required or permitted by law or contract. Procedures for Conducting the Review (Hearing) on the Validity and Amount of the Debt and the Repayment Schedule for FSO Section 422.317 addresses our procedures for reviewing the debt when requested by the debtor. Under new paragraph (a), a debtor who receives the notice under §§ 422.305(b), 422.306(b), or 422.310(c) has the right to have a review (a hearing) on the validity and amount of the debt described in the notice and the payment schedule for FSO stated in the notice. The debtor must notify us that he or she wants such review and give us evidence that he or she does not owe all or part of the debt, or that we do not have the right to collect it. We explain in new paragraph (a)(1) that, if the debtor requests review and gives us evidence within 60 calendar days from the date of our notice (except as provided in new paragraph (a)(3) for FSO), we will not take any action described in our notice until we consider all of the evidence and send the debtor our findings that all or part of the debt is overdue and legally enforceable. A similar explanation is deleted from current paragraph
(b)of § 422.317. Under new paragraph (a)(2), if the debtor does not notify us and give us evidence within 60 calendar days from the date of our notice (except as provided in new paragraph (a)(4) for FSO), we will conduct the review, but we may take the action described in the notice (refer information on the debt for offset against Federal payments or refer information about the debt to consumer reporting agencies or credit reporting agencies). New paragraph (a)(3) explains that, if the debtor is a Federal employee who requests review and gives us evidence within 30 calendar days from the date of our notice, we will not take any FSO action described in our notice until we consider all of the evidence and send the debtor our findings that all or part of the debt is overdue and legally enforceable and (when appropriate) our findings on the FSO payment schedule. Under new paragraph (a)(4), if the debtor does not notify us and give us evidence within 30 calendar days from the date of our notice regarding FSO, the review will occur, but we may take the FSO action described in the notice. We are revising paragraphs
(a)and
(b)of § 422.317 to allow an exception when the debtor has good cause for failing to request review within the 60-day period described in paragraph (a)(1) or the 30-day period described in paragraph (a)(3). If the debtor has good cause for making the request late, we will treat the request as received within the prescribed period. Thus, if the debtor requests review late, but has good cause, we will not take any action (or we will stop any action we had initiated) while our decision on the request is pending. New paragraphs (a)(2) and (a)(4) provide that if the debtor does not notify us and give us evidence within the prescribed period and does not have good cause for failing to request review on time, we will conduct the review, but we may initiate any action described in our notice without further delay. Under § 422.317(b), we will determine good cause under the rules in § 422.410(b)(1) and
(2)of subpart E, part 422, the regulations on administrative wage garnishment. In determining whether the debtor had good cause, we will consider: any circumstances that kept the debtor from making the request on time; whether our action misled the debtor; whether the debtor had any physical, mental, educational, or linguistic limitations (including any lack of facility with the English language) that prevented the debtor from making a request on time or from understanding the need to make a request on time. As revised by these final rules, paragraph
(c)of § 422.317 will generally describe our review (hearing) process. The review will cover our records pertaining to the debt and all of the evidence and statements presented by the debtor. We are adding a new paragraph
(d)to § 422.317 that provides special rules on the conduct of the review when we would use FSO. The review available to the debtor under revised § 422.317 will satisfy the requirement in 5 U.S.C. 5514(a)(2) that, before we begin to collect a debt by FSO, we must provide the debtor with the opportunity for a hearing concerning the existence and amount of the debt and the terms of the repayment schedule stated in the notice. The following special rules apply to the conduct of the review: • An official designated in accordance with 5 U.S.C. 5514(a)(2) will conduct the review requested by a Federal employee who is subject to FSO. • The Federal employee's request for review must be written and be signed by that employee, must explain with reasonable specificity the facts and evidence that support the employee's position, and must identify any witnesses. • When reviewing the payment schedule for FSO, the reviewing official will apply the rules regarding financial hardship in § 422.415 (b), (c), and
(d)of subpart E, part 422, the regulations on administrative wage garnishment. • The reviewing official will review our records on the debt and any evidence and written statements submitted by the debtor and would issue the final decision. • The reviewing official will complete the review within 60 calendar days from the date on which we receive the request for review and the debtor's evidence. If the reviewing official does not make a decision on the request within that 60-day period and the debt was referred to the Department of the Treasury for FSO (e.g., when the request was received late), we will notify the Department of the Treasury to suspend FSO. Offset will not begin or resume before we send the debtor the findings that all or part of the debt is overdue and legally enforceable or (if appropriate) the findings on the payment schedule. The OPM regulations provide that the proper content and form of the hearing required by 5 U.S.C. 5514(a)(2) depend on the nature of the matter under which the debt arose and that we must consult the Federal Claims Collection Standards
(FCCS)for guidance. 5 CFR 550.1104(g)(2). Our current regulations provide an administrative appeal process for the debtor on our original determination of indebtedness, including the opportunity for an oral hearing conducted by an administrative law judge. (See 20 CFR part 404, subpart J & part 416, subpart N). This appeal process will be available to the debtor before we initiate the process for using FSO, described in § 422.310, or any other action described in 20 CFR part 422, subpart D. The appeal process for the determination of indebtedness is available to resolve any issue pertaining to that determination, including credibility or veracity, for which an oral hearing would be appropriate. The review process for FSO described in § 422.317 affords the debtor a “paper hearing” on issues pertaining to the current status of the debt and the terms of repayment stated in the notice described in § 422.310. We believe that review of written evidence and statements will be adequate and appropriate to resolve those issues. We have determined that the combination of the administrative appeal process available on the original determination of indebtedness and the hearing afforded by the review of documents and written statements described in our final regulations meet the requirements of the applicable provisions in the FCCS. (See 31 CFR 901.3(b)(4)(iv), (e)). The provisions regarding the review findings, currently in paragraph
(c)of § 422.317, appear in new paragraph (e). Issuing the review findings is our final action on the debtor's request for review. We are revising the current provisions to clarify the actions we take based on the findings, particularly where FSO is involved. If the debtor requested review of the payment schedule for FSO, the written findings will cover that matter. If the reviewing official finds that the payment schedule will cause financial hardship, we will notify the debtor and the Department of the Treasury of the revised payment schedule. If we already initiated FSO, but the reviewing official finds that the individual does not owe the debt, the debt is not overdue, or we do not have the right to collect it, we will cancel that action and refund any amounts collected that the debtor does not owe or that we do not have the right to collect. Comments on the Notice of Proposed Rulemaking On March 13, 2006, we published the Notice of Proposed Rulemaking
(NPRM)in the **Federal Register** at 71 FR 12648 and provided the public a 60-day comment period that ended on May 12, 2006. We received no comments. Therefore, we are publishing these final rules unchanged. Regulatory Procedures Executive Order 12866 We have consulted with the Office of Management and Budget
(OMB)and determined that these final rules meet the criteria for a significant regulatory action under Executive Order 12866, as amended by Executive Order 13258. Thus, OMB reviewed them. Regulatory Flexibility Act We certify that these final regulations will not have a significant impact on a substantial number of small entities. Therefore, a regulatory flexibility analysis, as provided in the Regulatory Flexibility Act, as amended, is not required. Paperwork Reduction Act These final rules contain information collection activities at §§ 422.310 and 422.317. However, the activities are exempt from the Paperwork Reduction Act as administrative actions under 44 U.S.C. 3518(c)(1)(B)(ii) and from the clearance requirements of 44 U.S.C. 3507 as amended by section 2 of Public Law 104-13 (May 22, 1995), the Paperwork Reduction Act of 1995. (Catalog of Federal Domestic Assistance Programs No. 96.001, Social Security—Disability Insurance; 96.002 Social Security—Retirement Insurance; 96.003 Social Security—Special Benefits for Persons Aged 72 and Over; 96.004, Social Security—Survivors Insurance; 96.006, Supplemental Security Income) List of Subjects in 20 CFR Part 422 Administrative practice and procedure, Organization and functions (Government agencies), Social Security. Dated: June 19, 2006. Jo Anne B. Barnhart, Commissioner of Social Security. For the reasons set forth in the preamble, we are amending subpart D of part 422 of Chapter III of Title 20 of the Code of Federal Regulations as follows: PART 422—[AMENDED] 1. The authority citation for subpart D of part 422 is revised to read as follows: Authority: Secs. 204(f), 205(a), 702(a)(5), and 1631(b) of the Social Security Act (42 U.S.C. 404(f), 405(a), 902(a)(5), and 1383(b)); 5 U.S.C. 5514; 31 U.S.C. 3711(e); 31 U.S.C. 3716. 2. Section 422.301 is revised to read as follows: § 422.301 Scope of this subpart.
(a)Except as provided in paragraphs
(b)and
(c)of this section, this subpart describes the procedures relating to collection of:
(1)Overdue administrative debts, and
(2)Overdue program overpayments described in §§ 404.527 and 416.590 of this chapter.
(b)This subpart does not apply to administrative debts owed by employees of the Social Security Administration, including, but not limited to, overpayment of pay and allowances.
(c)The following exceptions apply only to Federal salary offset as described in § 422.310(a)(1).
(1)We will not use this subpart to collect a debt while the debtor's disability benefits are stopped during the reentitlement period, under § 404.1592a(a)(2) of this chapter, because the debtor is engaging in substantial gainful activity.
(2)We will not use this subpart to collect a debt while the debtor's Medicare entitlement is continued because the debtor is deemed to be entitled to disability benefits under section 226(b) of the Social Security Act (42 U.S.C. 426(b)).
(3)We will not use this subpart to collect a debt if the debtor has decided to participate in the Ticket to Work and Self-Sufficiency Program and the debtor's ticket is in use as described in §§ 411.170 through 411.225 of this chapter. 3. Section 422.303 is added to read as follows: § 422.303 Interest, late payment penalties, and administrative costs of collection. We may charge the debtor with interest, late payment penalties, and our costs of collection on delinquent debts covered by this subpart when authorized by our regulations issued in accordance with the Federal Claims Collection Standards (31 CFR 901.9). § 422.306 [Amended] 4. Paragraph
(a)of § 422.306 is amended by removing “overpayments of pay and allowances paid to employees,” from the second sentence. 5. Section 422.310 is revised to read as follows: § 422.310 Collection of overdue debts by administrative offset.
(a)*Referral to the Department of the Treasury for offset.*
(1)We will recover overdue debts by offsetting Federal payments due the debtor through the Treasury Offset Program (TOP). TOP is a Government-wide delinquent debt matching and payment offset process operated by the Department of the Treasury, whereby debts owed to the Federal Government are collected by offsetting them against Federal payments owed the debtor. Federal payments owed the debtor include current “disposable pay,” defined in 5 CFR 550.1103, owed by the Federal Government to a debtor who is an employee of the Federal Government. Deducting from such disposable pay to collect an overdue debt owed by the employee is called “Federal salary offset” in this subpart.
(2)Except as provided in paragraphs
(b)and
(c)of § 422.301, we will use Federal salary offset to collect overdue debts from Federal employees, including employees of the Social Security Administration. A Federal employee's involuntary payment of all or part of a debt collected by Federal salary offset does not amount to a waiver of any rights which the employee may have under any statute or contract, unless a statute or contract provides for waiver of such rights.
(b)*Debts we will refer.* We will refer for administrative offset all qualifying debts that meet or exceed the threshold amounts used by the Department of the Treasury for collection from Federal payments, including Federal salaries.
(c)*Notice to debtor.* Before we refer any debt for collection by administrative offset, we will send the debtor written notice that explains all of the following:
(1)The nature and amount of the debt.
(2)We have determined that payment of the debt is overdue.
(3)We will refer the debt for administrative offset (except as provided in paragraph (c)(9) of this section) at the expiration of not less than 60 calendar days after the date of the notice unless, within that 60-day period:
(i)The debtor pays the full amount of the debt, or
(ii)The debtor takes any of the actions described in paragraphs (c)(6) or (c)(7) of this section.
(4)The frequency and amount of any Federal salary offset deduction (the payment schedule) expressed as a fixed dollar amount or percentage of disposable pay.
(5)The debtor may inspect or copy our records relating to the debt. If the debtor or his or her representative cannot personally inspect the records, the debtor may request and receive a copy of such records.
(6)The debtor may request a review of the debt by giving us evidence showing that the debtor does not owe all or part of the amount of the debt or that we do not have the right to collect it. The debtor may also request review of any payment schedule for Federal salary offset stated in the notice. If the debtor is an employee of the Federal Government and Federal salary offset is proposed, an official designated in accordance with 5 U.S.C. 5514(a)(2) will conduct the review.
(7)The debtor may request to repay the debt voluntarily through an installment payment plan.
(8)If the debtor knowingly furnishes any false or frivolous statements, representations, or evidence, the debtor may be subject to:
(i)Civil or criminal penalties under applicable statutes;
(ii)Appropriate disciplinary procedures under applicable statutes or regulations, when the debtor is a Federal employee.
(9)We will refer the debt for Federal salary offset at the expiration of not less than 30 calendar days after the date of the notice unless, within that 30 day period the debtor takes any actions described in paragraphs (c)(3)(i), (c)(6) or (c)(7) of this section.
(d)*Federal salary offset: amount, frequency and duration of deductions.*
(1)We may collect the overdue debt from an employee of the Federal Government through the deduction of an amount not to exceed 15% of the debtor's current disposable pay each payday.
(2)Federal salary offset will begin no sooner than the first payday following 30 calendar days after the date of the notice to the debtor described in paragraph
(c)of this section.
(3)Once begun, Federal salary offset will continue until we recover the full amount of the debt, the debt is otherwise resolved, or the debtor's Federal employment ceases, whichever occurs first.
(4)After Federal salary offset begins, the debtor may request a reduction in the amount deducted from disposable pay each payday. When we determine that the amount deducted causes financial harm under the rules in § 422.415(b), (c), and
(d)of this chapter, we will reduce that amount.
(e)*Refunds.* We will promptly refund to the debtor any amounts collected that the debtor does not owe. Refunds do not bear interest unless required or permitted by law or contract. 5. Section 422.317 is revised to read as follows: § 422.317 Review of the debt.
(a)*Notification and presentation of evidence by the debtor.* A debtor who receives a notice described in § 422.305(b), § 422.306(b), or § 422.310(c) has a right to have a review of the debt and the payment schedule for Federal salary offset stated in the notice. To exercise this right, the debtor must notify us and give us evidence that he or she does not owe all or part of the debt, or that we do not have the right to collect it, or that the payment schedule for Federal salary offset stated in the notice would cause financial hardship.
(1)If the debtor notifies us and presents evidence within 60 calendar days from the date of our notice (except as provided for Federal salary offset in paragraph (a)(3) of this section), we will not take the action described in our notice unless and until review of all of the evidence is complete and we send the debtor the findings that all or part of the debt is overdue and legally enforceable.
(2)If the debtor notifies us and presents evidence after that 60 calendar-day period expires (except as provided for Federal salary offset in paragraph (a)(4) of this section) and paragraph
(b)of this section does not apply, the review will occur, but we may take the actions described in our notice without further delay.
(3)If the debtor notifies us and presents evidence within 30 calendar days from the date of our notice, we will not refer the debt for Federal salary offset unless and until review of all of the evidence is complete and we send the debtor the findings that all or part of the debt is overdue and legally enforceable and (if appropriate) the findings on the payment schedule for Federal salary offset.
(4)If the debtor notifies us and presents evidence after that 30 calendar-day period expires and paragraph
(b)of this section does not apply, the review will occur, but we may refer the debt for Federal salary offset without further delay.
(b)*Good cause for failure to timely request review.*
(1)If we decide that the debtor has good cause for failing to request review within the applicable period mentioned in paragraphs (a)(1) and (a)(3) of this section, we will treat the request for review as if we received it within the applicable period.
(2)We will determine good cause under the rules in § 422.410(b)(1) and
(2)of this chapter.
(c)*Review of the evidence.* The review will cover our records and any evidence and statements presented by the debtor.
(d)*Special rules regarding Federal salary offset.*
(1)When we use Federal salary offset to collect a debt owed by an employee of the Federal Government, an official designated in accordance with 5 U.S.C. 5514(a)(2) will conduct the review described in this section and will issue the findings.
(2)In addition to the requirements in paragraphs
(a)and
(b)of this section, the Federal employee must submit the request for review in writing. The request must
(i)Be signed by the employee,
(ii)Explain with reasonable specificity the facts and evidence that support the employee's position, and
(iii)Include the names of any witnesses.
(3)In reviewing the payment schedule described in the notice to the Federal employee, the reviewing official must apply the rules in § 422.415(b), (c), and
(d)of this chapter regarding financial hardship.
(4)The reviewing official will review our records and any documents, written statements, or other evidence submitted by the debtor and issue written findings.
(5)The reviewing official will complete the review within 60 calendar days from the date on which the request for review and the debtor's evidence are received. If the reviewing official does not complete the review within that 60-day period and the debt was referred to the Department of the Treasury for Federal salary offset, we will notify the Department of the Treasury to suspend Federal salary offset. Offset will not begin or resume before we send the debtor findings that all or part of the debt is overdue and legally enforceable or (if appropriate) findings on the payment schedule.
(e)*The findings.*
(1)Following the review described in paragraphs
(c)or
(d)of this section, we will send the written findings to the debtor. The findings will state the nature and origin of the debt, the analysis, findings and conclusions regarding the amount and validity of the debt, and, when appropriate, the repayment schedule for Federal salary offset. Issuance of these findings will be the final action on the debtor's request for review.
(2)If the findings state that an individual does not owe the debt, or the debt is not overdue, or we do not have the right to collect it, we will not send information about the debt to consumer or other credit reporting agencies or refer the debt to the Department of the Treasury for administrative offset. If we had referred the debt to the Department of the Treasury for administrative offset, we will cancel that action. If we had informed consumer or credit reporting agencies about the debt, we will inform them of the findings.
(3)If the findings state that the payment schedule for Federal salary offset would cause financial hardship, we will notify the debtor and the Department of the Treasury of the new payment schedule. [FR Doc. E6-10435 Filed 7-3-06; 8:45 am] BILLING CODE 4191-02-P DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 520 Oral Dosage Form New Animal Drugs; Ivermectin Liquid AGENCY: Food and Drug Administration, HHS. ACTION: Final rule. SUMMARY: The Food and Drug Administration
(FDA)is amending the animal drug regulations to reflect approval of a supplemental abbreviated new animal drug application (ANADA) filed by Med-Pharmex, Inc. The supplemental ANADA provides for revisions to labeling for ivermectin liquid, administered by mouth or nasogastric tube to horses for treatment and control of various internal parasites or parasitic conditions. DATES: This rule is effective July 5, 2006. FOR FURTHER INFORMATION CONTACT: John K. Harshman, Center for Veterinary Medicine (HFV-104), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 240-276-9808, e-mail: *john.harshman@fda.hhs.gov* . SUPPLEMENTARY INFORMATION: Med-Pharmex, Inc., 2727 Thompson Creek Rd., Pomona, CA 91767-1861, filed a supplement to ANADA 200-292 for IVERSOL (ivermectin) Liquid for Horses for the oral treatment and control of various species of internal parasites or parasitic conditions. The supplement provides for revisions to label indications and to the food safety warning. The supplemental ANADA is approved as of May 30, 2006, and 21 CFR 520.1195 is amended to reflect the approval. Approval of this supplemental ANADA did not require review of additional safety or effectiveness data or information. Therefore, a freedom of information summary is not required. The agency has determined under 21 CFR 25.33(a)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required. This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808. List of Subjects in 21 CFR Part 520 Animal drugs. Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR part 520 is amended as follows: PART 520—ORAL DOSAGE FORM NEW ANIMAL DRUGS 1. The authority citation for 21 CFR part 520 continues to read as follows: Authority: 21 U.S.C. 360b. § 520.1195 [Amended] 2. In § 520.1195, in paragraph (b)(1) remove “No. 050604” and add in its place “Nos. 050604 and 054925”; and in paragraph (b)(2) remove “054925, 058829,” and add in its place “058829”. Dated: June 22, 2006. Steven D. Vaughn, Director, Office of New Animal Drug Evaluation, Center for Veterinary Medicine. [FR Doc. E6-10444 Filed 7-3-06; 8:45 am] BILLING CODE 4160-01-S DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 520 Oral Dosage Form New Animal Drugs; Oxytetracycline Hydrochloride Soluble Powder AGENCY: Food and Drug Administration, HHS. ACTION: Final rule. SUMMARY: The Food and Drug Administration
(FDA)is amending the animal drug regulations to reflect approval of an abbreviated new animal drug application (ANADA) filed by Vétoquinol NA, Inc. The ANADA provides for use of oxytetracycline soluble powder to prepare medicated drinking water for the treatment of various bacterial diseases of livestock. DATES: This rule is effective July 5, 2006. FOR FURTHER INFORMATION CONTACT: Daniel A. Benz, Center for Veterinary Medicine (HFV-104), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 301-827-0223, e-mail: *daniel.benz@fda.hhs.gov* . SUPPLEMENTARY INFORMATION: Vétoquinol NA, Inc., 2000 chemin Georges, Lavaltrie (PQ), Canada J5T 3S5, filed a supplement to ANADA 200-305 that provides for use of Oxytetracycline HCl Soluble Powder to prepare medicated drinking water for the treatment of various bacterial diseases of livestock. Vétoquinol NA, Inc.'s Oxytetracycline HCl Soluble Powder is approved as a generic copy of Alpharma, Inc.'s OXY-TET (oxytetracycline hydrochloride) Soluble approved under NADA 130-435. The ANADA is approved as of June 2, 2006, and the regulations are amended in 21 CFR 520.1660d to reflect the approval. The basis of approval is discussed in the freedom of information summary. In accordance with the freedom of information provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday. The agency has determined under 21 CFR 25.33(a)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required. This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808. List of Subjects in 21 CFR Part 520 Animal drugs. Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR part 520 is amended as follows: PART 520—ORAL DOSAGE FORM NEW ANIMAL DRUGS 1. The authority citation for 21 CFR part 520 continues to read as follows: Authority: 21 U.S.C. 360b. § 520.1660d [Amended] 2. Amend § 520.1660d as follows: a. Revise the section heading; b. In paragraphs (d)(1)(ii)(A)( *3* ), (d)(1)(ii)(B)( *3* ), (d)(1)(ii)(C)( *3* ), and (d)(1)(iii)(C), remove “and 061133” and add in its place “059320, and 061133”; and c. Add paragraphs (a)(10) and (b)(8). The revisions read as follows: § 520.1660d Oxytetracycline powder.
(a)* * *
(10)Each 2.73 grams of powder contains 1 gram of OTC HCl (packets: 9.87 and 19.74 oz; pails: 5 lb).
(b)* * *
(8)No. 059320 for use of OTC concentration in paragraph (a)(10) of this section in chickens, turkeys, and swine as in paragraph
(d)of this section. Dated: June 22, 2006. Stephen F. Sundlof, Director, Center for Veterinary Medicine. [FR Doc. E6-10445 Filed 7-3-06; 8:45 am] BILLING CODE 4160-01-S DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 520 Oral Dosage Form New Animal Drugs; Griseofulvin AGENCY: Food and Drug Administration, HHS. ACTION: Final rule. SUMMARY: The Food and Drug Administration
(FDA)is amending the animal drug regulations to reflect approval of a new animal drug application (ANADA) filed by IVX Animal Health, Inc. The ANADA provides for veterinary prescription use of griseofulvin powder orally as a systemic antifungal agent in horses. DATES: This rule is effective July 5, 2006. FOR FURTHER INFORMATION CONTACT: Daniel A. Benz, Center for Veterinary Medicine (HFV-104), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 301-827-0223, e-mail: *daniel.benz@fda.hhs.gov* . SUPPLEMENTARY INFORMATION: IVX Animal Health, Inc., 3915 South 48th Street Ter., St. Joseph, MO 64503, filed ANADA 200-391 that provides for veterinary prescription use of Griseofulvin Powder Microsize, orally as a systemic antifungal agent in horses. IVX Animal Health's Griseofulvin Powder Microsize, is approved as a generic copy of Schering-Plough Animal Health Corp.'s FULVICIN-U/F (griseofulvin) Powder approved under NADA 39-792. The ANADA is approved as of June 1, 2006, and the regulations are amended in 21 CFR 520.1100 to reflect the approval and a current format. The basis of approval is discussed in the freedom of information summary. In accordance with the freedom of information provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday. The agency has determined under 21 CFR 25.33(a)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required. This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808. List of Subjects in 21 CFR Part 520 Animal drugs. Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR part 520 is amended as follows: PART 520—ORAL DOSAGE FORM NEW ANIMAL DRUGS 1. The authority citation for 21 CFR part 520 continues to read as follows: Authority: 21 U.S.C. 360b. 2. Amend § 520.1100 as follows: a. Revise paragraphs (a), (b), (c), and (d)(1); b. Remove paragraphs (d)(2) and (d)(3)(iii); and c. Redesignate paragraphs (d)(3) introductory text, (d)(3)(i), (d)(3)(i)( *a* ), (d)(3)(i)( *b* ), and (d)(3)(ii) as paragraphs (d)(2) introductory text, (d)(2)(i), (d)(2)(i)(A), (d)(2)(i)(B), and (d)(2)(ii). The revisions read as follows: § 520.1100 Griseofulvin.
(a)*Specifications* —(1) The powder complies with U.S.P. for griseofulvin, microsize.
(2)Each bolus contains 2.5 grams griseofulvin.
(3)Each tablet contains 125 or 500 milligrams griseofulvin.
(b)*Sponsors* . See sponsors in § 510.600(c) of this chapter.
(1)No. 000061 for use of products described in paragraph
(a)for use as in paragraph
(d)of this section.
(2)No. 059130 for use of the powder described in paragraph (a)(1) for use as in paragraphs (d)(1)(i)(A) and (d)(1)(ii) of this section.
(c)*Special considerations* . Federal law restricts this drug to use by or on the order of a licensed veterinarian.
(d)*Conditions of use* —(1) *Horses* —(i) *Amount and indications for use* —(A) For equine ringworm infection caused by *Trichophyton equinum* or *Microsporum gypseum* , administer soluble powder described in paragraph (a)(1) of this section daily as a drench or as a top dressing on feed for not less than 10 days as follows: adults, 2.5 grams; yearlings, 1.25 to 2.5 grams; and foals, 1.25 grams.
(B)For treating ringworm infection caused by *T. equinum* , administer boluses described in paragraph (a)(2) of this section daily for not less than 10 days as follows: adults, 1 bolus; yearlings, one-half to 1 bolus; and foals, one-half bolus.
(ii)*Limitations* . Not for use in horses intended for food. Dated: June 23, 2006. Stephen F. Sundlof, Director, Center for Veterinary Medicine. [FR Doc. E6-10406 Filed 7-3-06; 8:45 am] BILLING CODE 4160-01-S DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 524 Ophthalmic and Topical Dosage Form New Animal Drugs; Copper Naphthenate Solution AGENCY: Food and Drug Administration, HHS. ACTION: Final rule. SUMMARY: The Food and Drug Administration
(FDA)is amending the animal drug regulations to reflect approval of a supplemental new animal drug application
(NADA)filed by Farnam Companies, Inc. The supplemental NADA provides for a revised food safety warning on labeling for copper naphthenate topical solution for horse and pony hooves. DATES: This rule is effective July 5, 2006. FOR FURTHER INFORMATION CONTACT: Melanie R. Berson, Center for Veterinary Medicine (HFV-110), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 301-827-7540, e-mail: *melanie.berson@fda.hhs.gov* . SUPPLEMENTARY INFORMATION: Farnam Companies, Inc., 301 West Osborn, Phoenix, AZ 85013-3928, filed a supplement to NADA 100-616 for THRUSH-XX (copper naphthenate), a solution approved for topical use on horse and pony hooves as an aid in treating thrush. The supplemental NADA provides for a revised food safety warning on the labeling. The supplemental NADA is approved as of May 30, 2006, and the regulations are amended in 21 CFR 524.463 to reflect the approval and a current format. Approval of this supplemental NADA did not require review of additional safety or effectiveness data or information. Therefore, a freedom of information summary is not required. The agency has determined under 21 CFR 25.33(d)(3) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required. This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808. List of Subjects in 21 CFR Part 524 Animal drugs. Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR part 524 is amended as follows: PART 524—OPHTHALMIC AND TOPICAL DOSAGE FORM NEW ANIMAL DRUGS 1. The authority citation for 21 CFR part 524 continues to read as follows: Authority: 21 U.S.C. 360b. 2. In § 524.463, revise the section and paragraph
(c)headings, and paragraphs
(a)and (c)(3) to read as follows: § 524.463 Copper naphthenate.
(a)*Amount* . The drug is a 37.5 percent solution of copper naphthenate.
(c)*Conditions of use in horses* —* * *
(3)*Limitations* . Use on horses and ponies only. Avoid contact around eyes. Do not contaminate feed. Do not use in horses intended for human consumption. Dated: June 22, 2006. Steven D. Vaughn, Director, Office of New Animal Drug Evaluation, Center for Veterinary Medicine. [FR Doc. E6-10407 Filed 7-3-06; 8:45 am] BILLING CODE 4160-01-S DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [TD 9271] RIN 1545-BB68 Effect of Elections in Certain Multi-Step Transactions AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Final regulations. SUMMARY: This document contains final regulations that give effect to section 338(h)(10) elections in certain multi-step transactions. These final regulations are necessary in order to provide taxpayers with guidance regarding the validity of certain elections made under section 338(h)(10). These final regulations affect corporations and their shareholders. DATES: *Effective Date:* These regulations are effective July 5, 2006. *Applicability Date:* For dates of applicability, see § 1.338(h)(10)-1(h) of these regulations. FOR FURTHER INFORMATION CONTACT: Daniel F. Heins, at
(202)622-7930 (not a toll-free number). SUPPLEMENTARY INFORMATION: Background The IRS published temporary regulations (TD 9071) in the **Federal Register** on July 9, 2003 (68 FR 40766) (the temporary regulations), along with a notice of proposed rulemaking by cross-reference to the temporary regulations (REG-143679-02) (the proposed regulations). These temporary regulations provide, notwithstanding anything to the contrary in § 1.338-3(c)(1)(i), a section 338(h)(10) election may be made for T where P's acquisition of T stock, viewed independently, constitutes a qualified stock purchase and, after the stock acquisition, T merges or liquidates into P (or another member of the affiliated group that includes P), whether or not, under relevant provisions of law, including the step transaction doctrine, the acquisition of the T stock and the merger or liquidation of T qualify as a reorganization described in section 368(a). If a section 338(h)(10) election is made in a case where the acquisition of T stock followed by a merger or liquidation of T into P qualifies as a reorganization described in section 368(a), for all Federal tax purposes, P's acquisition of T stock is treated as a qualified stock purchase and is not treated as part of a reorganization described in section 368(a). For rules about the operation of the step transaction doctrine and the relationship between section 338 and the reorganization provisions when a section 338 election is not made, see § 1.338-3(d). See also Rev. Rul. 90-95 (1990-2 CB 67). See § 601.601(d)(2). No public hearing regarding the proposed regulations was requested or held. The IRS received written and electronic comments regarding the proposed regulations. After consideration of the comments, the proposed regulations are adopted by this Treasury decision. The most significant comments received with respect to the proposed regulations are discussed in this preamble. Explanation of Provisions A. Section 338(g) Elections Some commentators recommend that the final regulations allow section 338(g) elections, as well as section 338(h)(10) elections, to turn off the step transaction doctrine in a multi-step transaction that constitutes a reorganization under section 368(a). Although a section 338(g) election is made by the purchasing corporation and the shareholders of the target corporation (target) do not consent to the election, one commentator states that the IRS will not be subject to whipsaw if the IRS provides regulations requiring the shareholders of the acquired corporation to treat the transaction consistently with the acquiring corporation's election, rather than as a reorganization under section 368(a). The final regulations do not adopt the commentators' recommendation, and continue to turn off the step transaction doctrine only in the case of section 338(h)(10) elections. Extending the final regulations to section 338(g) elections would allow the acquiring corporation to unilaterally elect to treat the transaction, for all parties, as other than a reorganization under section 368(a). In light of potential whipsaw and other concerns, the final regulations continue to apply only to section 338(h)(10) elections, not section 338(g) elections. B. Corporate Purchaser Requirement One commentator suggests that § 1.338-3(b) be amended to clarify under what circumstances a corporation will be considered, for tax purposes, to have purchased the stock of target pursuant to section 338(d)(3). Under § 1.338-3(b), an individual cannot make a qualified stock purchase of target. If an individual forms a corporation (new P) to acquire target stock, new P can make a qualified stock purchase of target if new P is considered, for tax purposes, to purchase the target stock. Facts that may indicate that new P does not purchase the target stock include new P's merging downstream into target, liquidating, or otherwise disposing of the target stock following the purported qualified stock purchase. The IRS and Treasury Department are continuing to study whether any amendments to the portion of the regulations under section 338 related to the corporate purchaser requirement are appropriate. Special Analyses It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It is hereby certified that these regulations do not have a significant economic impact on a substantial amount of small entities. The number of corporations affected is limited because section 338(h)(10) elections are made only in extraordinary circumstances, the sale of a business. Furthermore, these regulations only affect transactions in which the stock of the acquiring corporation is a significant part of the consideration. Accordingly, a regulatory flexibility analysis does not apply. Since these final regulations make no changes to the current effective temporary regulations, a delayed effective date pursuant to 5 U.S.C. 553(d)(1) and
(3)is not necessary. Pursuant to section 7805(f) of the Code, the notice of proposed rulemaking preceding these regulations was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business. Drafting Information The principal author of these regulations is Daniel F. Heins of the Office of the Associate Chief Counsel (Corporate). List of Subjects in 26 CFR Part 1 Income taxes, Reporting and recordkeeping requirements. Adoption of Amendments to the Regulations Accordingly, 26 CFR part 1 is amended as follows: PART 1—INCOME TAXES **Paragraph 1.** The authority citation for part 1 is amended by adding an entry in numerical order to read, in part, as follows: Authority: 26 U.S.C. 7805 * * * Section 1.338(h)(10)-1 also issued under 26 U.S.C. 337(d), 338, and 1502. **Par 2.** § 1.338-3 is amended by revising the last sentence in paragraph (c)(1)(i) to read as follows: § 1.338-3 Qualification for the section 338 election.
(c)* * *
(1)* * *
(i)* * * See § 1.338(h)(10)-1(c)(2) for special rules concerning section 338(h)(10) elections in certain multi-step transactions. **Par. 3.** § 1.338(h)(10)-1 is amended as follows: 1. Paragraph (c)(2) is revised. 2. Paragraph
(e)*Examples 11* through *14* and paragraph
(h)are added. The revision and additions read as follows: § 1.338(h)(10)-1 Deemed asset sale and liquidation.
(c)* * *
(2)*Availability of section 338(h)(10) election in certain multi-step transactions.* Notwithstanding anything to the contrary in § 1.338-3(c)(1)(i), a section 338(h)(10) election may be made for T where P's acquisition of T stock, viewed independently, constitutes a qualified stock purchase and, after the stock acquisition, T merges or liquidates into P (or another member of the affiliated group that includes P), whether or not, under relevant provisions of law, including the step transaction doctrine, the acquisition of the T stock and the merger or liquidation of T qualify as a reorganization described in section 368(a). If a section 338(h)(10) election is made in a case where the acquisition of T stock followed by a merger or liquidation of T into P qualifies as a reorganization described in section 368(a), for all Federal tax purposes, P's acquisition of T stock is treated as a qualified stock purchase and is not treated as part of a reorganization described in section 368(a).
(e)* * * *Example 11.* *Stock acquisition followed by upstream merger—without section 338(h)(10) election.*
(i)P owns all the stock of Y, a newly formed subsidiary. S owns all the stock of T. Each of P, S, T and Y is a domestic corporation. P acquires all of the T stock in a statutory merger of Y into T, with T surviving. In the merger, S receives consideration consisting of 50% P voting stock and 50% cash. Viewed independently of any other step, P's acquisition of T stock constitutes a qualified stock purchase. As part of the plan that includes P's acquisition of the T stock, T subsequently merges into P. Viewed independently of any other step, T's merger into P qualifies as a liquidation described in section 332. Absent the application of paragraph (c)(2) of this section, the step transaction doctrine would apply to treat P's acquisition of the T stock and T's merger into P as an acquisition by P of T's assets in a reorganization described in section 368(a). P and S do not make a section 338(h)(10) election with respect to P's purchase of the T stock.
(ii)Because P and S do not make an election under section 338(h)(10) for T, P's acquisition of the T stock and T's merger into P is treated as part of a reorganization described in section 368(a). *Example 12.* *Stock acquisition followed by upstream merger—with section 338(h)(10) election.*
(i)The facts are the same as in *Example 11* except that P and S make a joint election under section 338(h)(10) for T.
(ii)Pursuant to paragraph (c)(2) of this section, as a result of the election under section 338(h)(10), for all Federal tax purposes, P's acquisition of the T stock is treated as a qualified stock purchase and P's acquisition of the T stock is not treated as part of a reorganization described in section 368(a). *Example 13.* *Stock acquisition followed by brother-sister merger—with section 338(h)(10) election.*
(i)The facts are the same as in *Example 12,* except that, following P's acquisition of the T stock, T merges into X, a domestic corporation that is a wholly owned subsidiary of P. Viewed independently of any other step, T's merger into X qualifies as a reorganization described in section 368(a). Absent the application of paragraph (c)(2) of this section, the step transaction doctrine would apply to treat P's acquisition of the T stock and T's merger into X as an acquisition by X of T's assets in a reorganization described in section 368(a).
(ii)Pursuant to paragraph (c)(2) of this section, as a result of the election under section 338(h)(10), for all Federal tax purposes, P's acquisition of T stock is treated as a qualified stock purchase and P's acquisition of T stock is not treated as part of a reorganization described in section 368(a). *Example 14.* *Stock acquisition that does not qualify as a qualified stock purchase followed by upstream merger.*
(i)The facts are the same as in *Example 11,* except that, in the statutory merger of Y into T, S receives only P voting stock.
(ii)Pursuant to § 1.338-3(c)(1)(i) and paragraph (c)(2) of this section, no election under section 338(h)(10) can be made with respect to P's acquisition of the T stock because, pursuant to relevant provisions of law, including the step transaction doctrine, that acquisition followed by T's merger into P is treated as a reorganization described in section 368(a)(1)(A), and that acquisition, viewed independently of T's merger into P, does not constitute a qualified stock purchase under section 338(d)(3). Accordingly, P's acquisition of the T stock and T's merger into P is treated as a reorganization described in section 368(a).
(h)*Effective date.* This section is applicable to stock acquisitions occurring on or after July 5, 2006. For stock acquisitions occurring before July 5, 2006, see § 1.338(h)(10)-1T as contained in the edition of 26 CFR part 1, revised as of April 1, 2006. § 1.338(h)(10)-1T [Removed] **Par. 4.** Section 1.338(h)(10)-1T is removed. Mark E. Matthews, Deputy Commissioner for Services and Enforcement. Approved: June 20, 2006. Eric Solomon, Acting Deputy Assistant Secretary of the Treasury (Tax Policy). [FR Doc. E6-10253 Filed 7-3-06; 8:45 am] BILLING CODE 4830-01-P 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 AGENCY: Executive Office for United States Trustees, Justice. ACTION: Interim final rule. 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 *ust.ccderules.comment@usdoj.gov,* 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 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 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 self-explanatory. 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 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 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 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. 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. 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 foreign-based 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 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 post-promulgation 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 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;
(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;
(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 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;
(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 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;
(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)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;
(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 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 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: § 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 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;
(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 toll-free number for deaf or hearing-impaired 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;
(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, 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:
(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;
(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. § 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 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 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)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 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 AGENCY: 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. 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 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: 1 The standard for shipyard employment also applies to marine terminals (29 CFR part 1917) and longshoring (29 CFR part 1918). • 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). • Protective Work Clothing and Equipment—1910.1026(h), 1915.1026(g), and 1926.1126(g). Paragraph 1910.1026(h)(2), 1915.1026(g)(2), and 1926.1126(g)(2)—Warning labels for bags or containers used to store Cr(VI)-contaminated protective clothing. Paragraphs 1910.1026(h)(3), 1915.1026(g)(3), and 1926.1126(g)(3)—Informing laundry contractors about the potentially harmful effects of exposure of Cr(VI). • Housekeeping—1910.1026(j). Paragraph 1910.1026(j)(3)(ii)—Labeling bags or containers of waste, scrap, debris, and any other materials contaminated with Cr(VI). • Medical Surveillance—1910.1026(k), 1915.1026(i), and 1926.1126(i). 2 2 The Supporting Statement submitted to OMB identifies these information collections as follows: *Initial medical examination* —paragraphs 1910.1026(k)(1)(i)(A), (k)(3)(i), and (k)(3)(ii); 1915.1026(i)(1)(i)(A), (i)(3)(i), and (i)(3)(ii), and 1926.1126(i)(1)(i)(A), (i)(3)(i), and (i)(3)(ii). *Annual medical examination* —paragraphs 1910.1026(k)(2)(ii), (k)(3)(i), and (k)(3)(ii); 1915.1026(i)(2)(ii), (i)(3)(i), and (i)(3)(ii); and 1926.1126(i)(2)(ii), (i)(3)(i), and (i)(3)(ii). *Initial medical examination with additional tests* —paragraphs 1910.1026(k)(1)(i)(B) and (k)(3)(i)-(k)(3)(iii); 1915.1026(i)(1)(i)(B) and (i)(3)(i)-(i)(3)(iii); and 1926.1126(i)(1)(i)(B) and (i)(3)(i)-(i)(3)(iii). *Annual medical examination with additional tests* —paragraphs 1910.1026(k)(2)(ii) and (k)(3)(i)-(k)(3)(iii); 1915.1026(i)(2)(ii) and (i)(3)(i)-(i)(3)(iii); and 1926.1126(i)(2)(ii) and (i)(3)(i)-(i)(3)(ii). *Medical examination after initial assignment* — paragraphs 1910.1026(k)(2)(i), (k)(3)((i), and (k)(3)(ii); 1915.1026(i)(2)(i), (i)(3)(i), and (i)(3)(ii); and 1926.1126(i)(2)(i), (i)(3)(i), and (i)(3)(ii). *Medical examination at termination of employment* —paragraphs 1910.1026(k)(2)(vi) and (k)(3)(i)-(k)(3)(iii); 1915.1026(i)(2)(vi) and (i)(3)(i)-(i)(3)(iii); and 1926.1126(i)(2)(vi) and (i)(3)(i)-(i)(3)(iii). Paragraphs 1910.1026(k)(1), 1915.1026(i)(1), and 1926.1126(i)(1)—General. Paragraphs 1910.1026(k)(2); 1915.1026(i)(2), and 1926.1126(i)(2)—Frequency. Paragraphs 1910.1026(k)(3); 1915.1026(i)(3); and 1926.1126(i)(3)—Contents of examination. Paragraphs 1910.1026(k)(4), 1915.1026(i)(4) and 1926.1126(i)(4)—Information provided to the physician or other licensed health care professional (PLHCP). Paragraphs 1910.1026(k)(5), 1915.1026(i)(5), and 1926.1126(i)(5)—PLHCP's written medical opinion. • Communication of Chromium
(VI)Hazards to Employees—1910.1026(l), 1915.1026(j), and 1926.1126(j). Paragraphs 1910.1026(l)(2), 1915.1026(j)(2), and 1926.1126(j)(2)—Employee information and training. • Recordkeeping—1910.1026(m), 1915.1026(k), and 1926.1126(k). Paragraphs 1910.1026(m)(1), 1915.1026(k)(1), and 1926.1126(k)(1)—Air monitoring data. Paragraphs 1910.1026(m)(2), 1915.1026(k)(2), and 1926.1126(k)(2)—Historical monitoring data. Paragraphs 1910.1026(m)(3), 1915.1026(k)(3), and 1926.1126(k)(3)—Objective data. Paragraphs 1910.1026(m)(4), 1915.1026(k)(4), and 1926.1126(k)(4)—Medical surveillance. Authority and Signature Edwin G. Foulke, Jr., Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice. The authority for this notice is the Paperwork Reduction Act of 1995 (44 U.S.C. 3506 et seq.), and Secretary of Labor's Order No. 5-2002 (67 FR 65008). List of Subjects in 29 CFR Parts 1910, 1915, and 1926 Occupational safety and health, Reporting and recordkeeping requirements. Signed at Washington, DC, on June 19, 2006. Edwin G. Foulke, Jr., Assistant Secretary. Amendments to Standards For the reasons stated in the preamble to this final rule, the Occupational Safety and Health Administration amends 29 CFR parts 1910, 1915, and 1926 to read as follows: PART 1910—[AMENDED] Subpart A—[Amended] 1. Revise the authority citation for subpart A to read as follows: Authority: Sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, and 657); Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017), and 5-2002 (67 FR 65008), as applicable. Sections 1910.7 and 1910.8 also issued under 29 CFR part 1911. Section 1910.7(f) also issued under 31 U.S.C. 9701, 29 U.S.C. 9 a, 5 U.S.C. 553; Public Law 106-113 (113 Stat. 1501A-222); and OMB Circular A-25 (dated July 8, 1993) (58 FR 38142, July 15, 1993). 2. Amend § 1910.8 by adding to the table contained therein the entry “1910.1026” in the proper numerical sequence as follows: § 1910.8 OMB control numbers under the Paperwork Reduction Act. 29 CFR citation OMB control No. * * * * * 1910.1026 1218-0252 * * * * * PART 1915—[AMENDED] 3. Revise the authority citation for part 1915 to read as follows: Authority: Section 41, Longshore and Harbor Workers' Compensation Act (33 U.S.C. 941); sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, and 657); Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017), and 5-2002 (67 FR 65008), as applicable. Sections 1915.120 and 1915.152 also issued under 29 CFR part 1911. Section 1915.1001 also issued under 5 U.S.C. 553. Subpart A—[Amended] 4. Amend § 1915.8 by adding to the table contained therein the entry “1915.1026” in the proper numerical sequence as follows: § 1915.8 OMB control numbers under the Paperwork Reduction Act. 29 CFR citation OMB control No. * * * * * 1915.1026 1218-0252 * * * * * PART 1926—[AMENDED] Subpart A—[Amended] 5. Revise the authority citation for subpart A to read as follows: Authority: Section 3704 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 3701 *et seq.* ); sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, and 657); Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017), and 5-2002 (67 FR 65008), as applicable; and 29 CFR part 1911. 6. Amend § 1926.5 by adding to the table contained therein the entry “1926.1126” in the proper numerical sequence as follows: § 1926.5 OMB control numbers under the Paperwork Reduction Act. 29 CFR citation OMB control No. * * * * * 1926.1126 1218-0252 * * * * * [FR Doc. 06-5955 Filed 7-3-06; 8:45 am]
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U.S. Code
35 references not yet in our index
  • 18 CFR 284
  • 18 USC 717-717w
  • 42 USC 7201-7352
  • 43 USC 1331-1356
  • 20 CFR 422
  • Pub. L. 103-387
  • Pub. L. 104-134
  • Pub. L. 106-169
  • 5 CFR 550.1104
  • Pub. L. 103-296
  • 45 CFR 30
  • 20 CFR 404
  • 5 CFR 550.1104(n)
  • 5 CFR 550.1103
  • 5 CFR 550.1104(g)(2)
  • Pub. L. 104-13
  • 21 CFR 520
  • 5 USC 801-808
  • 21 CFR 520.1660
  • 21 CFR 20
  • 21 CFR 524
  • 26 CFR 1
  • T.D. 9271
  • T.D. 9071
  • Rev. Rul. 90-95
  • 28 CFR 58
  • Pub. L. 109-8
  • 119 Stat. 37
  • 119 Stat. 38
  • 44 USC 3501-3520
  • 5 CFR 1320.5(b)
  • 29 CFR 1917
  • 29 CFR 1918
  • 29 CFR 1911
  • Pub. L. 106-113
Citation graph
cites case law
Rules and Regulations
Correcting amendment
U.S.C.§ 5514
U.S.C.§ 3716
U.S.C.§ 404
C.F.R.§ 285.7
C.F.R.§ 422.301
C.F.R.§ 422.303
C.F.R.§ 404.1592
C.F.R.§ 411.170
U.S.C.§ 3717
Cite18 CFR 284
Cite18 USC 717-717w
Cite42 USC 7201-7352
Cites 82 · showing 12Cited by 0 across 0 sources
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