[Federal Register Volume 73, Number 22 (Friday, February 1, 2008)]
[Proposed Rules]
[Pages 6062-6073]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-1451]


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DEPARTMENT OF JUSTICE

28 CFR Part 58

[Docket No: EOUST 102]
RIN 1105-AB17


Application Procedures and Criteria for Approval of Nonprofit 
Budget and Credit Counseling Agencies by United States Trustees

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: This notice of proposed rulemaking (``rule'') sets forth 
proposed procedures and criteria United States Trustees shall use when 
determining whether applicants seeking to become and remain approved 
nonprofit budget and credit counseling agencies satisfy all 
prerequisites of the United States Code, as implemented under this 
rule. Under current law every individual debtor shall have received 
adequate counseling from an approved nonprofit budget and credit 
counseling agency within 180 days before the date of filing for 
bankruptcy relief. The current law enumerates mandatory prerequisites 
and minimum standards applicants seeking to become approved nonprofit 
budget and credit counseling agencies must meet. Under this rule, 
United States Trustees will approve applicants for inclusion on 
publicly available agency lists in one or more federal judicial 
districts, if an applicant establishes it meets all the requirements of 
the United States Code, as implemented under this rule. After obtaining 
such an approval, a nonprofit budget and credit counseling agency shall 
be authorized to provide credit counseling in a federal judicial 
district during the time the agency remains approved.

DATES: Submit comments on or before April 1, 2008.

ADDRESSES: Comments on the rule may be submitted via 
www.regulations.gov, by telefax to (202) 305-8536, or by postal mail to 
Executive Office for United States Trustees (``EOUST''), 20 
Massachusetts Ave., NW., 8th Floor, Washington, DC 20530. To ensure 
proper handling of comments, please reference ``Docket No. EOUST 102'' 
on all written and electronic correspondence.

FOR FURTHER INFORMATION CONTACT: Henry Hobbs, Acting Chief, Credit 
Counseling & Debtor Education Unit, at (202) 514-4100 (not a toll-free 
number).

SUPPLEMENTARY INFORMATION: 

Posting of Public Comments

    Please note that all comments received are considered part of the 
public record and made available for public inspection online at http://www.regulations.gov. Such information includes personal identifying 
information (such as your name, address, etc.) voluntarily submitted by 
the commenter. If you want to submit personal identifying information 
(such as your name, address, etc.) as part of your comment, but do not 
want it to be posted online, you must include the phrase ``PERSONAL 
IDENTIFYING INFORMATION'' in the first paragraph of your comment. You 
must also locate all the personal identifying information you do not 
want posted online in the first paragraph of your comment and identify 
what information you want redacted.
    If you want to submit confidential business information as part of 
your comment but do not want it to be posted online, you must include 
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph 
of your comment. You must also prominently identify confidential 
business information to be redacted within the comment. If a comment 
has so much confidential business information that it cannot be 
effectively redacted, all or part of that comment

[[Page 6063]]

may not be posted on http://www.regulations.gov.
    Personal identifying information and confidential business 
information identified and located as set forth above will be placed in 
the agency's public docket file, but not posted online. If you wish to 
inspect the agency's public docket file in person by appointment, 
please see the FOR FURTHER INFORMATION CONTACT paragraph. Comments 
filed after the end of the comment period may be considered to the 
extent feasible.

Discussion of Rule

    This rule implements those sections of Public Law No. 109-8, 119 
Stat. 23, 37, 38 (April 20, 2005) codified at 11 U.S.C. 109(h)(1) and 
111. Effective October 17, 2005, an individual may not be a debtor 
under title 11 of the United States Code unless during the 180-day 
period preceding the date of filing a bankruptcy petition, the 
individual receives adequate counseling from an approved nonprofit 
budget and credit counseling agency. 11 U.S.C. 109(h)(1) and 111. See 
also H.R. Rep. 109-31, pt. 1 at 2 (the Bankruptcy Code ``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'').
    Section 111(b) of title 11, United States Code, governs the 
approval by United States Trustees of nonprofit budget and credit 
counseling agencies for inclusion under 11 U.S.C. 111(a)(1) on publicly 
available agency lists in one or more United States district courts. 
Section 111 of title 11 provides that, in applicable jurisdictions, a 
United States Trustee may approve an application to become an approved 
nonprofit budget and credit counseling agency only after the United 
States Trustee has thoroughly reviewed the applicant's (a) 
qualifications, and (b) services. 11 U.S.C. 111(b)(1). A United States 
Trustee has statutory authority to require an applicant to provide 
information with respect to such review. 11 U.S.C. 111(b)(1).
    After completing that thorough review, a United States Trustee may 
approve a nonprofit budget and credit counseling agency only if the 
agency establishes that it fully satisfies all requisite standards. 11 
U.S.C. 111(b). Among other things, an applicant must establish it will 
(a) provide qualified counselors, (b) maintain adequate provision for 
safekeeping and payment of client funds, (c) provide adequate 
counseling with respect to client credit problems, and (d) deal 
responsibly and effectively with other matters relating to the quality, 
effectiveness, and financial security of the services it provides. 11 
U.S.C. 111(c)(1).
    This proposed rule will implement those statutory requirements. By 
accomplishing that, the rule will help debtors obtain adequate 
counseling from competent credit counseling agencies, and help 
safeguard their funds. It also will provide an appropriate mechanism by 
which entities can apply for approval under section 111 of title 11 to 
become nonprofit budget and credit counseling agencies, and will enable 
such applicants to attempt to meet their burden of establishing they 
should be approved by United States Trustees under 11 U.S.C. 111.
    This rule, once final, will supersede the provisions that address 
credit counseling agencies in EOUST's Interim Final Rule published on 
July 5, 2006 (71 FR 38076) entitled Application Procedures and Criteria 
for Approval of Nonprofit Budget and Credit Counseling Agencies and 
Approval of Providers of a Personal Financial Management Instructional 
Course by United States Trustees (``Interim Final Rule''). The credit 
counseling provisions are currently codified at 28 CFR 58.15, 58.16, 
and 58.17. Due to the necessity of quickly establishing a regulation to 
govern the credit counseling application process, EOUST promulgated the 
Interim Final Rule rather than a notice of proposed rulemaking. Based 
upon experience administering the Interim Final Rule, and upon 
consideration of comments received regarding the Interim Final Rule, 
EOUST promulgates this rule as a notice of proposed rulemaking in an 
effort to maximize public input. EOUST will respond to the comments to 
the Interim Final Rule and this rule when it publishes the final rule. 
EOUST will also publish another notice of proposed rulemaking that 
addresses providers of a financial management instructional course with 
a RIN number of 1105-AB31.
    In an effort to make information more accessible and 
understandable, several changes to the Interim Final Rule are proposed 
in this rule, along with other changes to enhance consumer protections. 
Some of the more significant changes include the following: (1) Adding 
identification procedures for clients when accessing Internet or 
telephone counseling sessions; (2) establishing a limit for credit 
counseling fees to be presumed reasonable; (3) preserving clients' 
rights under 11 U.S.C. 502(k); (4) requiring agencies to provide 
additional counseling at no extra cost to clients when a debt repayment 
plan has been completed or terminated so that clients may file 
bankruptcy if they so choose; (5) providing guidance on agencies' 
responsibilities to individuals with limited English proficiency; and 
(6) requiring appropriate disclosures be made before providing services 
to clients, such as an agency's fee policy and the prohibition from 
receiving referral fees.

Executive Order 12866

    This rule has been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulatory Planning and Review'' section 1(b), 
The Principles of Regulation. The Department has determined that this 
rule is a ``significant regulatory action'' and, accordingly, this rule 
has been reviewed by the Office of Management and Budget (``OMB'').
    The Department has also assessed both the costs and benefits of 
this rule as required by section 1(b)(6) and has made a reasoned 
determination that the benefits of this regulation justify its costs. 
The costs considered in this regulation include the required costs for 
the submission of an application. Costs considered also include the 
cost of establishing and maintaining the approved list in each federal 
judicial district. In an effort to minimize the burden on applicants, 
the application keeps the number of items on the application to a 
minimum.
    The costs to an applicant will be minimal. The anticipated costs 
are the photocopying and mailing of the requested records, along with 
the salaries of the employees who complete the applications. Based upon 
the available information, experience with the credit counseling 
industry, and informal communications with credit counseling agencies, 
it is anticipated that this cost should equal approximately $500 per 
application for agencies. This cost is not new; it is the same cost 
that credit counseling agencies incurred when applying under the 
Interim Final Rule. Public comments regarding the cost to applicants in 
completing the application are requested.
    Applicants that offer debt repayment plans must also obtain a 
surety bond in the amount of 2% of the agency's disbursements made 
during the previous 12 months from all trust accounts attributable to 
the federal judicial districts (or, if not feasible to determine, the 
states) in which the agency seeks approval from the United States 
Trustee or equal to the average daily balance maintained for the 6 
months immediately prior to submission of the application in all trust 
accounts attributable to the federal judicial districts (or, if not 
feasible to

[[Page 6064]]

determine, the states) in which the agency seeks approval from the 
United States Trustee. In addition, credit counseling agencies that 
offer debt repayment plans must obtain employee fidelity insurance in a 
face amount equal to 50% of the surety bond. Credit counseling agencies 
are entitled to receive a credit for any state bond or employee 
fidelity insurance already obtained.
    Although applicants may charge a fee for providing the credit 
counseling services in accordance with this rule, agencies must provide 
credit counseling without regard to a client's ability to pay the fee. 
Based upon the available information, current practice of many credit 
counseling agencies, experience with the credit counseling industry, 
and informal communications with credit counseling agencies, $50 is 
presumed to be a reasonable fee for credit counseling. The United 
States Government Accountability Office, after conducting a study on 
credit counseling, found that $50 was the typical rate charged by 
credit counseling agencies and that industry observers and consumer 
advocates considered this amount to be reasonable. Public comments as 
to the reasonableness of $50 for credit counseling are requested.
    The amount presumed to be reasonable for credit counseling fees 
will be reviewed periodically, but not less than every four years, and 
the amount presumed to be reasonable will be published by notice in the 
Federal Register and identified on EOUST's Web site. In addition, all 
applicants must waive the fee if the client demonstrates a lack of 
ability to pay the fee, which shall be presumed if the client's 
household current income is less than 150% of the income of the 
official poverty line as identified by the United States Department of 
Health and Human Services applicable to a household of the same size.
    The number of applicants that will ultimately apply is unknown, 
although EOUST believes that approximately 300 may ultimately apply to 
be approved credit counseling agencies. Currently, there are 
approximately 160 approved agencies. The annual hour burden on agencies 
is estimated to be 10 hours. This estimate is based on consultations 
with individuals in the credit counseling industry, and experience with 
applicants who completed the initial applications. Public comments 
regarding the annual hour burden on credit counseling agencies in 
completing the application are requested.
    The EOUST consulted with the Federal Trade Commission (``FTC'') and 
with the Internal Revenue Service (``IRS'') in drafting this rule and 
the EOUST does not believe the rule has an adverse effect upon either 
agency.
    The benefits of this rule include the development of standards that 
increase consumer protections, such as a limit on the presumption of 
reasonable fees, requirement that agencies provide adequate disclosures 
concerning agencies' policies, and the preservation of clients' rights 
under section 502(k). This rule also provides for greater supervision 
by the United States Trustee to ensure agencies employ proper 
procedures to safeguard client funds. These benefits justify its costs 
in complying with Congress' mandate that a list of approved agencies be 
established. Public Law No. 109-8, Sec.  106(e)(1).

Executive Order 13132

    This rule will not have a substantial direct effect on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with Executive Order 
13132, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

Paperwork Reduction Act

    The information collection requirements contained in this rule have 
been approved by OMB in accordance with the Paperwork Reduction Act of 
1995, 44 U.S.C. 3501 to 3520, and assigned OMB control number 1105-0084 
for form EOUST-CC1, the ``Application for Approval as a Nonprofit 
Budget and Credit Counseling Agency.'' 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.

Regulatory Flexibility Act

    In accordance with the Regulatory Flexibility Act (5 U.S.C. 
605(b)), the Director has reviewed this rule and by approving it 
certifies that it will not have a significant economic impact on a 
substantial number of small entities. This certification is based upon 
experience in administering the Interim Final Rule where the surety 
bond and insurance requirements are less than 1% of gross revenue and 
also less than 1% of total expenditures for the large majority of 
credit counseling agencies considered to be small businesses.

Unfunded Mandates Reform Act of 1995

    This rule does not require the preparation of an assessment 
statement in accordance with the Unfunded Mandates Reform Act of 1995, 
2 U.S.C. 1531. This rule does not include a federal mandate that may 
result in the annual expenditure by State, local, and tribal 
governments, in the aggregate, or by the private sector, of more than 
the annual threshold established by the Act ($100 million). Therefore, 
no actions were deemed necessary under the provisions of the Unfunded 
Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 
801 et seq. This rule will not result in an annual effect on the 
economy of $100 million or more; a major increase in costs or prices; 
or significant adverse effects on competition, employment, investment, 
productivity, and innovation; or on the ability of United States-based 
companies to compete with foreign-based companies in domestic and 
export markets.

Privacy Act Statement

    Section 111 of title 11, United States Code, authorizes the 
collection of this information. The primary use of this information is 
by the United States Trustee to approve nonprofit budget and credit 
counseling agencies. The United States Trustee will not share this 
information with any other entity unless authorized under the Privacy 
Act, 5 U.S.C. 552a et seq. EOUST has published a System of Records 
Notice that delineates the routine use exceptions authorizing 
disclosure of information. 71 FR 59818, 59827 (Oct. 11, 2006), JUSTICE/
UST-005, Credit Counseling and Debtor Education Files and Associated 
Records.
    Public Law 104-134 (April 26, 1996) requires that any person doing 
business with the federal government furnish a Social Security Number 
or Tax Identification Number. This is an amendment to section 7701 of 
title 31, United States Code. Furnishing the Social Security Number, as 
well as other data, is voluntary, but failure to do so may delay or 
prevent action on the application.

[[Page 6065]]

List of Subjects in 28 CFR Part 58

    Administrative practice and procedure, Bankruptcy, Credit and 
debts.

    Accordingly, for the reasons set forth in the preamble, part 58 of 
chapter I of title 28 of the Code of Federal Regulations is proposed to 
be amended as follows:

PART 58--[AMENDED]

    1. The authority citation for part 58 is revised to read as 
follows:

    Authority: 5 U.S.C. 301, 552; 11 U.S.C. 109(h), 111, 521(b), 
727(a)(11), 1141(d)(3); 1202; 1302;1328(g), 28 U.S.C. 509, 510, 586, 
589b.

    2. Add Sec. Sec.  58.12, 58.13 and 58.14 to read as follows:


Sec.  58.12  Definitions.

    (a) The following definitions apply to sections 58.12 through and 
including 58.24 of this part, as well as the applications and other 
materials agencies submit in an effort to establish they meet the 
requirements necessary to become an approved nonprofit budget and 
credit counseling agency.
    (b) These terms shall have these meanings:
    (1) The term ``accreditation'' means the accreditation that an 
accrediting organization bestows upon an agency because the accrediting 
organization has determined the agency meets or exceeds all the 
accrediting organization's standards;
    (2) The term ``accrediting organization'' means either an entity 
that provides accreditation to agencies or provides certification to 
counselors, provided, however, that an accrediting organization shall:
    (i) not be an agency or affiliate of any agency; and
    (ii) be deemed acceptable by the United States Trustee;
    (3) The term ``adequate counseling'' means the actual receipt by a 
client from an approved agency of all counseling services, and all 
other applicable services, rights, and protections specified in:
    (i) 11 U.S.C. 109(h)(1);
    (ii) 11 U.S.C. 111; and
    (iii) this rule;
    (4) The term ``affiliate of an agency'' includes:
    (i) every entity that is an affiliate of the agency, as the term 
``affiliate'' is defined in 11 U.S.C. 101(2), except that the word 
``agency'' shall be substituted for the word ``debtor'' in 11 U.S.C. 
101(2);
    (ii) each of an agency's officers and each of an agency's 
directors; and
    (iii) every relative of an agency's officers and every relative of 
an agency's directors;
    (5) The term ``agency'' and the term ``budget and credit counseling 
agency'' shall each mean a nonprofit organization that is applying 
under this rule for United States Trustee approval to be included on a 
publicly available list in one or more United States district courts, 
as authorized by 11 U.S.C. 111(a)(1), and shall also mean, whenever 
appropriate, an approved agency;
    (6) The term ``application'' means the application and related 
forms, including appendices, approved by the Office of Management and 
Budget as form EOUST-CC1, Application for Approval as a Nonprofit 
Budget and Credit Counseling Agency, as it shall be amended from time 
to time;
    (7) The term ``approved agency'' means an agency currently approved 
by a United States Trustee under 11 U.S.C. 111 as an approved nonprofit 
budget and credit counseling agency eligible to be included on one or 
more lists maintained under 11 U.S.C. 111(a)(1);
    (8) The term ``approved list'' means the list of agencies currently 
approved by a United States Trustee under 11 U.S.C. 111 as currently 
published on the United States Trustee Program's Internet site on the 
United States Department of Justice's Internet site;
    (9) The term ``audited financial statements'' means financial 
reports audited by independent certified public accountants in 
accordance with generally accepted accounting principles as defined by 
the American Institute of Certified Public Accountants;
    (10) The term ``certificate'' means the certificate identified in 
11 U.S.C. 521(b)(1) that an approved agency shall provide to a client 
after the client completes counseling services;
    (11) The term ``client'' means an individual who seeks, receives or 
has received counseling services from an approved agency;
    (12) The term ``counseling services'' means all counseling required 
by 11 U.S.C. 109(h) and 111, and this rule including, without 
limitation, services that are typically of at least 60 minutes in 
duration and that shall at a minimum include:
    (i) Performing on behalf of, and providing to, each client a 
written analysis of each client's current financial condition, which 
analysis shall include a budget analysis, consideration of all 
alternatives to resolve a client's credit problems, discussion of the 
factors that caused such financial condition, and identification of all 
methods by which the client can develop a plan to respond to the 
financial problems without incurring negative amortization of debt; and
    (ii) Providing each client the opportunity to have the agency 
negotiate an alternative payment schedule with regard to each unsecured 
consumer debt under terms as set forth in 11 U.S.C. 502(k) or, if the 
client accepts this option and the agency is unable to provide this 
service, the agency shall refer the client to another approved agency 
in the appropriate federal judicial district that provides it;
    (13) The term ``counselor certification'' means certification of a 
counselor by an accrediting organization because the accrediting 
organization has determined the counselor meets or exceeds all the 
accrediting organization's standards for counseling services or related 
areas, such as personal finance, budgeting, or credit or debt 
management;
    (14) The term ``criminal background check'' means a report 
generated by the Federal Bureau of Investigation disclosing the entire 
criminal history record, if any, of the counselor for whom the criminal 
background check is sought. Whenever the Federal Bureau of 
Investigation does not have access to, or provides, less than the 
entire state criminal history record of the counselor, then the term 
``criminal background check'' shall also include the entire state 
criminal history record, if any, of every state law enforcement agency 
where the counselor has resided for any part of the immediately 
preceding five years. If a criminal background check is not available 
from the Federal Bureau of Investigation and is not authorized by state 
law in the residential state of the employee, the agency shall instead 
obtain at least every 5 years a sworn statement from each counselor 
attesting to whether the counselor has been convicted of a felony, or a 
crime involving fraud, dishonesty, or false statements;
    (15) The term ``debt repayment plan'' means any written document 
suggested, drafted, or reviewed by an approved agency that either 
proposes or implements any mechanism by which a client would make 
payments to any creditor or creditors if, during the time any such 
payments are being made, that creditor or those creditors would forbear 
from collecting or otherwise enforcing their claim or claims against 
the client; provided, however, that any such written document shall not 
constitute a debt repayment plan if the client would incur a negative 
amortization of debt under it;

[[Page 6066]]

    (16) The term ``Director'' means the person designated or acting as 
the Director of the Executive Office for United States Trustees;
    (17) The term ``entity'' shall have the meaning given that term in 
11 U.S.C. 101(15);
    (18) The term ``fair share'' means payments by a creditor to an 
approved agency for administering a debt repayment plan;
    (19) The terms ``fee'' and ``fee policy'' each mean the aggregate 
of all fees, contributions, and payments an approved agency charges 
clients for providing counseling services; ``fee policy'' shall also 
mean the objective criteria the agency uses in determining whether to 
waive or reduce any fee, contribution, or payment;
    (20) The term ``final decision'' means the decision issued by the 
Director that reviews the United States Trustee's decision either to 
deny an agency's application or to remove an agency from the approved 
list;
    (21) The term ``financial benefit'' means any interest equated with 
money or its equivalent, including, but not limited to, stock, bonds, 
other investments, income, goods, services, or receivables;
    (22) The term ``governmental unit'' shall have the meaning given 
that term in 11 U.S.C. 101(27);
    (23) The term ``independent contractor'' means a person or entity 
who provides any good or service to an approved agency other than as an 
employee and as to whom the approved agency does not:
    (i) Direct or control the means or methods of delivery of the 
service or goods being provided;
    (ii) Make financial decisions concerning the business aspects of 
the goods or services being provided; and
    (iii) Have any common employees;
    (24) The term ``languages offered'' means every language other than 
English in which an approved agency provides counseling services;
    (25) The term ``legal advice'' shall have the meaning given that 
term in 11 U.S.C. 110(e)(2);
    (26) The term ``limited English proficiency'' means, alternatively:
    (i) An inability to speak, read, write, or understand the English 
language; or
    (ii) The use primarily of a language other than English in a 
person's daily affairs;
    (27) The term ``locator'' means any entity that assists a 
prospective client find an approved agency or agencies for the purpose 
of receiving counseling services, unless such entity is the approved 
agency proposing to provide counseling services to the prospective 
client;
    (28) The term ``material change'' means, alternatively, any change:
    (i) In the name, structure, principal contact, management, 
staffing, physical location, counseling services, fee policy, or method 
of delivery of an approved agency; or
    (ii) That renders inapplicable, inaccurate, incomplete, or 
misleading any statement an agency or approved agency previously made:
    (A) In its application or related materials; or
    (B) To the United States Trustee;
    (29) The term ``median family income'' shall have the meaning given 
that term in 11 U.S.C. 101(39A);
    (30) The term ``method of delivery'' means one or more of the 3 
methods by which an approved agency can provide some component of 
counseling services to its clients, including:
    (i) ``in person'' delivery, which applies when a client primarily 
receives counseling services at a physical location with a credit 
counselor physically present in that location, and with the credit 
counselor providing oral and/or written communication to the client at 
the facility;
    (ii) ``telephone'' delivery, which applies when a client primarily 
receives counseling services by telephone; and
    (iii) ``Internet'' delivery, which applies when a client primarily 
receives counseling services through an Internet website;
    (31) The term ``nonprofit'' means, alternatively:
    (i) An entity validly organized as a not-for-profit entity under 
applicable state or federal law, if that entity operates as a not-for-
profit entity in full compliance with all applicable state and federal 
law; or
    (ii) A qualifying governmental unit;
    (32) The term ``notice'' in 28 CFR 58.24 means the written 
communication from the United States Trustee to an agency that its 
application to become an approved agency has been denied or to an 
approved agency that it is being removed from the approved list;
    (33) The term ``qualifying government unit'' means any governmental 
unit that, were it not a governmental unit, would qualify for tax-
exempt status under 26 U.S.C. 501(c)(3), or would qualify as a 
nonprofit entity under applicable state law;
    (34) The term ``referral fees'' means money or any other valuable 
consideration paid or transferred between an approved agency and 
another entity in return for that entity, directly or indirectly, 
identifying, referring, securing, or in any other way encouraging any 
client or potential client to receive counseling services from the 
approved agency; provided, however, that ``referral fees'' shall not 
include fees paid to:
    (i) The agency under a fair share agreement; or
    (ii) Any locator;
    (35) The term ``relative'' shall have the meaning given that term 
in 11 U.S.C. 101(45);
    (36) The term ``request for review'' means the written 
communication from an agency to the Director seeking review of the 
United States Trustee's decision either to deny the agency's 
application or to remove the agency from the approved list;
    (37) The term ``state'' means state, commonwealth, district, or 
territory of the United States;
    (38) The term ``tax waiver'' means a document sufficient to permit 
the Internal Revenue Service to release directly to the United States 
Trustee information about an agency;
    (39) The term ``trust account'' means an account with a federally 
insured depository institution that is separated and segregated from 
operating accounts, which an approved agency shall maintain in its 
fiduciary capacity for the purpose of receiving and holding client 
funds entrusted to the approved agency; and
    (40) The term ``United States Trustee'' means, alternatively:
    (i) The Executive Office for United States Trustees;
    (ii) A United States Trustee appointed under 28 U.S.C. 581;
    (iii) A person acting as a United States Trustee;
    (iv) An employee of a United States Trustee; or
    (v) Any other entity authorized by the Attorney General to act on 
behalf of the United States under this rule.


Sec.  58.13  Procedures all agencies shall follow when applying to 
become approved agencies.

    (a) An agency applying to become an approved agency shall obtain an 
application, including appendices, from the United States Trustee.
    (b) The agency shall complete the application, including its 
appendices, and attach the required supporting documents requested in 
the application.
    (c) The agency shall submit the original of the completed 
application, including completed appendices and the required supporting 
documents, and one additional copy of those, to the United States 
Trustee at the address specified on the application form.
    (d) The application shall be signed by an agency representative who 
is authorized under applicable law to sign on behalf of the applying 
agency.

[[Page 6067]]

    (e) The signed application, completed appendices, and required 
supporting documents shall be accompanied by a writing, signed by the 
signatory of the application and executed on behalf of the signatory 
and the agency, certifying the application does not:
    (1) Falsify, conceal, or cover up by any trick, scheme or device a 
material fact;
    (2) Make any materially false, fictitious, or fraudulent statement 
or representation; or
    (3) Make or use any false writing or document knowing the same to 
contain any materially false, fictitious, or fraudulent statement or 
entry.
    (f) The United States Trustee shall not consider an application 
that:
    (1) Is incomplete;
    (2) Fails to include the completed appendices or all of the 
required supporting documents; or
    (3) Is not accompanied by the certification identified in the 
preceding subsection.
    (g) The United States Trustee shall not consider an application on 
behalf of an agency if:
    (1) It is submitted by any entity other than the agency; or
    (2) Either the application or the accompanying certification is 
executed by any entity other than an agency representative who is 
authorized under applicable law to sign on behalf of the agency.
    (h) By the act of submitting an application, an agency consents to 
the release and disclosure of its name and contact information on the 
approved list should its application be approved.


Sec.  58.14  Automatic expiration of agencies' status as approved 
agencies.

    (a) Except as provided in 28 CFR 58.15(c), if an approved agency 
was not an approved agency immediately prior to the date it last 
obtained approval to be an approved agency, such an approved agency 
shall cease to be an approved agency 6 months from the date on which it 
was approved unless the United States Trustee approves an additional 1-
year period.
    (b) Except as provided in 28 CFR 58.15(c), if an approved agency 
was an approved agency immediately prior to the date it last obtained 
approval to be an approved agency, such an agency shall cease to be an 
approved agency 1 year from the date on which it was last approved to 
be an approved agency unless the United States Trustee approves an 
additional 1-year period.
    3. Sections 58.15 through 58.17 are revised to read as follows.


Sec.  58.15  Procedures all approved agencies shall follow when 
applying for approval to act as an approved agency for an additional 1-
year period.

    (a) To be considered for approval to act as an approved agency for 
an additional 1-year term, an approved agency shall reapply by 
complying with all the requirements specified for agencies under 11 
U.S.C. 109(h)(1) and 111, and under this rule.
    (b) Such an agency shall apply no later than 45 days prior to the 
expiration of its six-month probationary period or annual period in 
order to be considered for approval for an additional 1-year period, 
unless a written extension is granted by the United States Trustee.
    (c) An approved agency that has complied with all prerequisites for 
applying to act as an approved agency for an additional 1-year period 
may continue to operate as an approved agency while its application is 
under review by the United States Trustee, so long as either the 
application for an additional 1-year period was timely submitted, or an 
agency receives a written extension from the United States Trustee.


Sec.  58.16  Renewal for an additional 1-year period.

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


Sec.  58.17  Mandatory duty of approved agencies to notify United 
States Trustees of material changes.

    (a) An approved agency shall immediately notify the United States 
Trustee in writing of any material change.
    (b) An approved agency shall immediately notify the United States 
Trustee in writing of any failure by the approved agency to comply with 
any standard or requirement specified in 11 U.S.C. 109(h) or 111, this 
rule, or the terms under which the United States Trustee approved it to 
act as an approved agency.
    (c) An approved agency shall immediately notify the United States 
Trustee in writing of any of the following events:
    (1) Notification by the Internal Revenue Service or by a state or 
local taxing authority that the approved agency has been selected for 
audit or examination regarding its tax-exempt status, or any 
notification of a compliance check by the Internal Revenue Service or 
by a state or local taxing authority;
    (2) Revocation or termination of the approved agency's tax-exempt 
status by any governmental unit or by any judicial officer;
    (3) Cessation of business by the approved agency or by any office 
of the agency, or withdrawal from any federal judicial district(s) 
where the approved agency is approved;
    (4) Any investigation of, or any administrative or judicial action 
brought against, the approved agency by any governmental unit;
    (5) Termination or cancellation of any surety bond or fidelity 
insurance;
    (6) Any administrative or judicial action brought by any entity 
that seeks recovery against a surety bond or fidelity insurance;
    (7) Any action by a governmental unit or a court to suspend or 
revoke the approved agency's articles of incorporation, or any license 
held by the approved agency, or any authorization necessary to engage 
in business;
    (8) A suspension, or action to suspend, any accreditation held by 
the approved agency, or any withdrawal by the approved agency of any 
application for accreditation, or any denial of any application of the 
approved agency for accreditation;
    (9) A change in the approved agency's nonprofit status under any 
applicable law; and
    (10) Any change in the banks or financial institutions used by the 
agency.
    (d) An agency shall notify the United States Trustee in writing if 
any of the changes identified in paragraphs (a) through (c) of this 
section occur while its application to become an approved agency is 
pending before the United States Trustee.
    (e) An approved agency whose name or other information appears 
incorrectly on the approved list shall immediately submit a written 
request to the United States Trustee asking that the information be 
corrected.
    4. Sections 58.18 through 58.24 are added to read as follows:


Sec.  58.18  Mandatory duty of approved agencies to obtain prior 
permission from the United States Trustee before taking certain 
actions.

    (a) By accepting the designation to act as an approved agency, an 
agency agrees to obtain approval from the United States Trustee, prior 
to making any of the following changes:
    (1) Cancellation or change in amount of the surety bond or employee 
fidelity bond or insurance;
    (2) The engagement of an independent contractor to provide 
counseling

[[Page 6068]]

services or to have access to, possession of, or control over client 
funds;
    (3) Any increase in the fees, contributions, or payments received 
from clients for counseling services or a change in the agency's fee 
policy;
    (4) Expansion into additional federal judicial districts;
    (5) Any changes to the method of delivery the approved agency 
employs to provide counseling services; or
    (6) Any changes in the approved agency's counseling services.
    (b) An agency applying to become an approved agency shall also 
obtain approval from the United States Trustee before taking any action 
specified in paragraph (a) of this section. It shall do so by 
submitting an amended application. The agency's amended application 
shall be accompanied by a contemporaneously executed writing, signed by 
the signatory of the application, that makes the certifications 
specified in 28 CFR 58.13(e).
    (c) An approved agency shall not transfer or assign its United 
States Trustee approval to act as an approved agency.


Sec.  58.19  Criteria agencies shall satisfy to become and remain 
approved agencies.

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


Sec.  58.20  Minimum qualifications agencies shall meet to become and 
remain approved agencies.

    To meet the minimum qualifications set forth in 28 CFR 58.19, and 
in addition to the other requirements set forth in this rule, agencies 
and approved agencies shall comply with paragraphs (a) through (p) of 
this section on a continuing basis:
    (a) Compliance with all laws. An agency shall comply with all 
applicable laws and regulations of the United States and each state in 
which the agency provides counseling services including, without 
limitation, all laws governing licensing and registration.
    (b) Prohibition on Legal Advice. An agency shall not provide legal 
advice.
    (c) Structure and organization. An agency shall:
    (1) Be lawfully organized and operated as a nonprofit entity; and
    (2) Have a board of directors the majority of which:
    (i) are not relatives;
    (ii) 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.
    (d) Ethical standards. An agency shall:
    (1) Not engage in any conduct or transaction, other than counseling 
services, that generates a direct or indirect financial benefit for any 
member of the board of directors or trustees, officer, supervisor, or 
any relative thereof;
    (2) Ensure no member of the board of directors or trustees, 
officer, or supervisor receives any commissions, incentives, bonuses, 
or benefits (monetary or non-monetary) of any kind that are directly or 
indirectly based on the financial or legal decisions any client or 
potential client makes after requesting counseling services;
    (3) Ensure no member of the board of directors or trustees, officer 
or supervisor is a relative of an employee of the United States 
Trustee, a trustee appointed under 11 U.S.C. 586(a)(1) or (b) for any 
Federal judicial district where the agency is providing or is applying 
to provide counseling services, a federal judge in any Federal judicial 
district where the agency is providing or is applying to provide 
counseling services, a Federal court employee in any Federal judicial 
district where the agency is providing or is applying to provide 
counseling services, or a certified public accountant that audits the 
agency's trust account;
    (4) Not enter into any referral agreement or receive any financial 
benefit that involves the agency paying to or receiving from any entity 
or person referral fees for the referral of clients to or by the 
agency, except payments:
    (i) Under a fair share agreement; or
    (ii) To any locator;
    (5) Not enter into agreements involving counseling services that 
create a conflict of interest; and
    (6) Not provide counseling services to a client with whom the 
agency has a lender-borrower relationship.
    (e) Use of credit counselors. An agency shall have a credit 
counselor provide the counseling services to each of the agency's 
clients. The credit counselor shall interact with the client regarding 
the accuracy of the information obtained from the client and the 
alternatives available to the client for dealing with his or her 
current financial situation, including the plan developed to address 
such financial situation.
    (f) Credit counselor training, certification and experience. An 
agency shall:
    (1) Use only counselors who possess adequate experience providing 
credit counseling, which shall mean that each counselor either:
    (i) Holds a counselor certification and who have complied with all 
continuing education requirements necessary to maintain their counselor 
certification; or
    (ii) Has successfully completed a course of study and worked a 
minimum of 6 months in a related area such as personal finance, 
budgeting, or credit or debt management. A course of study shall 
include training in counseling skills, personal finance, budgeting, or 
credit or debt management. A counselor shall also receive annual 
continuing education in the areas of counseling skills, personal 
finance, budgeting, or credit or debt management;
    (2) Demonstrate adequate experience, background, and quality in 
providing credit counseling, which shall mean that, at a minimum, the 
agency shall either:
    (i) Have experience in providing credit counseling for the 2 years 
immediately preceding the relevant application date; or
    (ii) For each office providing counseling services, employ at least 
one supervisor who has met the qualifications in paragraph (f)(2)(i) of 
this section for no less than 2 of the 5 years preceding the relevant 
application date; and
    (3) If offering any component of counseling services by a telephone 
or Internet method of delivery, use only counselors who, in addition to 
all other requirements, demonstrate sufficient experience and 
proficiency in providing such counseling services by those methods of 
delivery, including proficiency in employing verification procedures to 
ensure the person receiving the counseling services is the client, and 
to determine whether the client has completely received counseling 
services.
    (g) No variation in services. An agency shall ensure that the type 
and quality of services do not vary based on a client's decision 
whether to obtain a certificate in lieu of other options that may or 
may not be suggested by the agency.

[[Page 6069]]

    (h) Use of the telephone and the Internet to deliver a component of 
client services. An agency shall:
    (1) Not provide any client diminished counseling services because 
the client receives any portion of those counseling services by 
telephone or Internet;
    (2) Confirm the identity of the client before receiving counseling 
services by telephone or Internet by:
    (i) Obtaining one or more unique personal identifiers from the 
client and assigning an individual access code, user ID, or password at 
the time of enrollment; and
    (ii) Requiring the client to provide the appropriate access code, 
user ID, or password, and also one or more of the unique personal 
identifiers during the course of delivery of the counseling services.
    (i) Services to hearing and hearing-impaired clients and potential 
clients. An agency shall furnish toll-free telephone numbers for both 
hearing and hearing-impaired clients and potential clients whenever 
telephone communication is required. The agency shall provide telephone 
amplification, sign language services, or other communication methods 
for hearing-impaired clients or potential clients.
    (j) Language services to clients and potential clients. An agency 
shall communicate, in writing and orally, with clients and potential 
clients in the languages of the major population groups served by the 
agency. The agency shall provide or arrange for bilingual personnel, 
interpreters, or the use of communication technology, as needed, in 
such languages. The agency shall inform any client or potential client 
with limited English proficiency of the languages offered in providing 
counseling services. Whenever an agency cannot provide counseling 
services to a client or a potential client due to a person's limited 
English proficiency, the agency shall employ its best efforts to 
expeditiously direct such person to one or more approved agencies that 
can provide counseling services in the language of the client or 
potential client's choice.
    (k) Services to clients and potential clients with special needs. 
An agency that provides any portion of its counseling in person shall 
comply with all federal, state and local laws governing facility 
accessibility. An agency shall also provide or arrange for 
communication assistance for clients or potential clients with special 
needs who have difficulty making their service needs known.
    (l) Mandatory disclosures to clients and potential clients. Prior 
to providing any information to or obtaining any information from a 
client or potential client, and prior to rendering any counseling 
service, an agency shall disclose:
    (1) The agency's fee policy;
    (2) The agency's policies enabling clients to obtain counseling 
services for free or at reduced rates based upon the client's lack of 
ability to pay;
    (3) The agency's funding sources;
    (4) The counselors' qualifications;
    (5) The potential impacts on credit reports of all alternatives the 
agency may discuss with the client;
    (6) The agency's policy prohibiting it from paying or receiving 
referral fees for the referral of clients to or by the agency, except:
    (i) Under a fair share agreement; or
    (ii) To any locator;
    (7) The agency's obligation to provide a certificate to the client 
promptly upon the completion of counseling services;
    (8) The client's right to negotiate an alternative payment schedule 
with regard to each unsecured consumer debt under terms as set forth in 
11 U.S.C. 502(k);
    (9) The fact that the agency might disclose client information to 
the United States Trustee in connection with the United States 
Trustee's oversight of the agency, or during the investigation of 
complaints, during on-site visits, or during quality of service 
reviews;
    (10) The fact that the United States Trustee has reviewed only the 
agency's counseling services, and the fact that the United States 
Trustee has neither reviewed nor approved any other services the agency 
provides to clients; and
    (11) The fact that a client will receive a certificate only if the 
client completes counseling services.
    (m) Complaint Procedures. An agency shall employ complaint 
procedures that adequately respond to clients' concerns.
    (n) Background checks. An agency shall:
    (1) Conduct a criminal background check at least every 5 years for 
each person providing credit counseling, and
    (2) Not employ anyone as a counselor who has been convicted of any 
felony, or any crime involving fraud, dishonesty, or false statements, 
unless the United States Trustee determines circumstances warrant a 
waiver of this prohibition against employment.
    (o) Agency records. An agency shall prepare and retain records that 
enable the United States Trustee to evaluate whether the agency is 
providing adequate counseling and acting in compliance with all 
applicable laws and this rule. All records, including documents bearing 
original signatures, shall be maintained in either hard copy form or 
electronically in a format widely available commercially. Records that 
the agency shall prepare and retain for a minimum of two years, and 
permit review by the United States Trustee upon request, shall include:
    (1) Upon the filing of an application for probationary approval, 
all information requested by the United States Trustee as an estimate, 
projected to the end of the probationary period, in the form requested 
by the United States Trustee;
    (2) After probationary or annual approval, and for so long as the 
agency remains on the approved list, semi-annual reports of historical 
data (for the periods ending June 30 and December 31 of each year), of 
the type and in the form requested by the United States Trustee; these 
reports shall be submitted within 30 days of the end of the applicable 
periods specified in this paragraph;
    (3) Annual audited financial statements, including the audited 
balance sheet, statement of income and retained earnings, and statement 
of changes in financial condition;
    (4) Books, accounts, and records to provide a clear and readily 
understandable record of all business conducted by the agency, 
including without limitation, copies of all correspondence with or on 
behalf of the client, including the contract between the agency and the 
client and any amendments thereto;
    (5) Records concerning the delivery of services to clients and 
potential clients with limited English proficiency and special needs, 
and to hearing-impaired clients and potential clients, including 
records:
    (i) Of the number of such clients;
    (ii) Of which languages are offered;
    (iii) Detailing the agency's best efforts to provide services to 
such clients and potential clients; and
    (iv) Supporting any justification if the agency did not provide 
services to such clients or potential clients;
    (6) Records concerning the delivery of counseling services to 
clients for free or at reduced rates based upon the client's lack of 
ability to pay, including records of the number of such clients and the 
extent to which the agency voluntarily waived all or part of its fees 
under 28 CFR 58.21(c);
    (7) Records of complaints and the agency's responses thereto;
    (8) Records that enable the agency to verify the authenticity of 
certificates their clients file in bankruptcy cases; and
    (9) Records that enable the agency to issue replacement 
certificates.

[[Page 6070]]

    (p) Additional minimum requirements. An agency shall:
    (1) Provide records to the United States Trustee upon request;
    (2) Cooperate with the United States Trustee by allowing scheduled 
and unscheduled on-site visits, complaint investigations, or other 
reviews of the agency's qualifications to be an approved agency;
    (3) Cooperate with the United States Trustee by promptly responding 
to questions or inquiries from the United States Trustee;
    (4) Assist the United States Trustee in identifying and 
investigating suspected fraud and abuse by any party participating in 
the credit counseling or bankruptcy process;
    (5) Not exclude any client or creditor from a debt repayment plan 
because the creditor declines to make a fair share contribution to the 
agency;
    (6) Take no action that would limit, inhibit, or prevent a client 
from bringing an action or claim for damages against an agency under 
any applicable law, including but not limited to 11 U.S.C. 111(g)(2);
    (7) Refer clients and prospective clients for counseling services 
only to agencies that have been approved by a United States Trustee to 
provide such services;
    (8) Comply with the United States Trustee's directions on approved 
advertising, including without limitation those set forth in appendix A 
to the application;
    (9) Not disclose or provide to a credit reporting agency any 
information concerning whether a client has received or sought 
instruction concerning credit counseling or personal financial 
management from an agency;
    (10) Not expose the client to commercial advertising as part of or 
during the client's receipt of any counseling services, and never 
market or sell financial products or services during the counseling 
session; provided, however, this provision does not prohibit an agency 
from generally discussing all available financial products and 
services;
    (11) Not sell information about any client or potential client to 
any third party without the client or potential client's prior written 
permission; and
    (12) If the agency is tax-exempt, submit a completed and signed tax 
waiver permitting and directing the Internal Revenue Service to provide 
the United States Trustee with access to the Internal Revenue Service's 
files relating to the agency.


Sec.  58.21  Additional minimum requirements to become and remain 
approved agencies relating to fees.

    (a) If a fee for, or relating to, credit counseling services is 
charged by an agency, such fee shall be reasonable:
    (1) A fee of $50 or less for credit counseling services is presumed 
to be reasonable and an agency need not obtain prior approval of the 
United States Trustee to charge such a fee;
    (2) A fee exceeding $50 for credit counseling services is not 
presumed to be reasonable and an agency must obtain prior approval from 
the United States Trustee to charge such a fee. The agency bears the 
burden of establishing that its proposed fee is reasonable. At a 
minimum, the agency must demonstrate that its cost for delivering such 
services justify the fee; and
    (3) The United States Trustee shall review the amount of the fee 
set forth in paragraphs (a)(1) and (2) of this section periodically, 
but not less than every 4 years, to determine the reasonableness of the 
fee. Fee amounts and any revisions thereto shall be determined by 
current costs, using a method of analysis consistent with widely 
accepted accounting principles and practices, and calculated in 
accordance with the provisions of federal law as applicable. Fee 
amounts and any revisions thereto shall be published in the Federal 
Register.
    (b) An agency shall waive the fee whenever a client demonstrates a 
lack of ability to pay the fee. A client shall be deemed to have 
demonstrated a lack of ability to pay the fee if the client's household 
current income is less than 150% of the income of the official poverty 
line (as defined by the Office of Management and Budget, and revised 
annually in accordance with section 673(2) of the Omnibus Budget 
Reconciliation Act of 1981) as identified in the Poverty Guidelines 
updated periodically in the Federal Register by the United States 
Department of Health and Human Services applicable to a family or 
household of the size involved in the fee decision.
    (c) Notwithstanding the requirements of paragraph (b) of this 
section, an agency may also waive fees based upon other considerations, 
including, but not limited to:
    (1) The client's net worth;
    (2) The percentage of the client's income from government 
assistance programs;
    (3) Whether the client is receiving pro bono legal services in 
connection with a filed or anticipated bankruptcy case; or
    (4) If the combined current monthly income, as defined in 11 U.S.C. 
101(10A), of the client and his or her spouse, when multiplied times 
12, is equal to or less than the amounts set forth in 11 U.S.C. 
707(b)(7).
    (d) An agency shall not link a client or potential client's 
purchase of counseling services to the purchase of any other service 
offered by the agency.


Sec.  58.22  Additional minimum requirements to become and remain 
approved agencies relating to certificates.

    (a) An approved agency shall deliver a certificate only to the 
client who took and completed the counseling services, except that an 
approved agency shall instead deliver a certificate to the attorney of 
a client who took and completed counseling services if the client 
specifically requests that in writing.
    (b) An approved agency shall attach to the certificate:
    (1) The client's debt repayment plan (if any); and
    (2) If the counselor determines a viable alternative to bankruptcy 
is available to the client to resolve his or her credit problems, the 
client's budget analysis.
    (c) An approved agency shall deliver a certificate to a client no 
later than one business day after the client completed counseling 
services.
    (d) If an approved agency provides other financial counseling in 
addition to counseling services, and such other financial counseling 
satisfies the requirements for counseling services specified in 11 
U.S.C. 109(h) and 111, and this rule, a person completing such other 
financial counseling is a client and the approved agency shall deliver 
a certificate to the client no later than one business day after the 
client's request. The approved agency shall not charge the client any 
additional fee except any separate fee charged for the issuance of the 
certificate, in accordance with paragraph (g) of this section.
    (e) An approved agency shall issue certificates only in the form 
approved by the United States Trustee, and shall generate the form 
using the Certificate Generating System maintained by the United States 
Trustee.
    (f) An approved agency shall have sufficient computer capabilities 
to issue certificates from the United States Trustee's Certificate 
Generating System.
    (g) An approved agency shall not charge a separate fee for the 
issuance of a certificate or replacement certificate, unless:
    (1) The approved agency has disclosed such fee in writing before 
any counseling services are provided and before any payment is made by 
the client;

[[Page 6071]]

    (2) The approved agency obtains the written consent of the client 
before the client commences receiving counseling services; and
    (3) Such fee is reasonable and otherwise complies with the waiver 
requirements of 28 CFR 58.21.
    (h) An approved agency shall issue a certificate to each client who 
completes counseling services. Spouses receiving counseling services 
jointly shall each receive a certificate.
    (i) An approved agency shall issue a replacement certificate to a 
client who requests one.
    (j) An approved agency shall not file certificates with the court.
    (k) Only an authorized officer, supervisor or employee of an 
approved agency shall issue a certificate, and an approved agency shall 
not transfer or delegate authority to issue certificates to any other 
entity.
    (l) An approved agency shall implement internal controls sufficient 
to prevent unauthorized issuance of certificates.
    (m) An approved agency shall ensure the signature affixed to a 
certificate is that of an officer, supervisor or employee authorized to 
issue the certificate, in accordance with paragraph (k) of this 
section, which signature shall be either:
    (1) An original signature; or
    (2) In a format approved for electronic filing with the court (most 
typically in the form /s/ name of counselor); however, whenever a 
certificate is prepared for filing electronically with the court, a 
certificate with the counselor's original signature shall also be 
provided to the client.
    (n) An approved agency shall affix to the certificate the exact 
name under which the approved agency is incorporated or organized.
    (o) An approved agency shall identify on the certificate:
    (1) The specific Federal judicial district requested by the client;
    (2) Whether counseling services were provided in person, by 
telephone or via the Internet;
    (3) The date on which counseling services were completed by the 
client; and
    (4) The name of the counselor that provided the counseling 
services.
    (p) An approved agency shall affix the client's full, accurate name 
to the certificate. If the counseling services are obtained by a client 
through a duly authorized representative, the certificate shall also 
set forth the name of the legal representative and legal capacity of 
that representative.
    (q) If an individual enters into a debt repayment plan after 
completing credit counseling, upon the client's request after the 
completion or termination of the debt repayment plan, the approved 
agency shall:
    (1) Provide such additional credit counseling as is necessary at 
such time to comply with the requirements specified in 11 U.S.C. 109(h) 
and 111, and this rule, including reviewing the client's current 
financial condition and counseling the client regarding the 
alternatives to resolve the client's credit problems;
    (2) Deliver a certificate to the client no later than one business 
day after the client completed such additional counseling; and
    (3) Not charge the client any additional fee except any separate 
fee charged for the issuance of the certificate, in accordance with 
paragraph (g) of this section.


Sec.  58.23  Additional financial requirements and bonding and 
insurance requirements for agencies offering debt repayment plans.

    If an agency offers debt repayment plans, an agency shall possess 
adequate financial resources to provide continuing support services for 
budgeting plans over the life of any repayment plan, and provide for 
the safekeeping of client funds, which shall include:
    (a) Depositing all client funds into a deposit account, held in 
trust, at a federally insured depository institution. Each such trust 
account shall be established in a fiduciary capacity and shall be in 
full compliance with federal law such that each client's funds shall be 
protected by federal deposit insurance up to the maximum amount 
allowable by federal law.
    (b) Keeping and maintaining books, accounts, and records to provide 
a clear and readily understandable record of all business conducted by 
the agency, including without limitation, all of the following:
    (1) Separate files for each client's account that include copies of 
all correspondence with or on behalf of the client, including:
    (i) All agreements with all entities, including the contract 
between the agency and the client and any amendments thereto;
    (ii) The analysis of the client's budget;
    (iii) Correspondence between the agency and the client's creditors;
    (iv) The notice given to creditors of any debt repayment plan; and
    (v) All written statements of account provided to the client and 
subsidiary ledgers concerning any debt repayment plan;
    (2) A trust account general ledger reflecting all deposits to and 
disbursements from all trust accounts, which shall be kept current at 
all times;
    (3) A reconciliation of the trust accounts, prepared at least once 
a month; and
    (4) An operating account general ledger reflecting all of the 
agency's financial transactions involving the agency's operating 
account, which shall be kept current at least on a monthly basis.
    (c) Allowing an independent certified public accounting firm to 
audit the trust accounts annually in accordance with generally accepted 
accounting principles as defined by the American Institute of Certified 
Public Accountants and any Statement of Work prepared by the United 
States Trustee, which audit shall include:
    (1) A report of all trust account activity including:
    (i) The balance of each trust account at the beginning and end of 
the period;
    (ii) The total of all receipts from clients and disbursements to 
creditors during the reporting period;
    (iii) The total of all disbursements to the agency; and
    (iv) The reconciliation of each trust account;
    (2) A report of all exceptions (e.g., discrepancies, 
irregularities, and errors) found, regardless of materiality; and
    (3) An evaluation of the agency's trust account internal controls 
and its computer operations to determine whether it provides a 
reasonable assurance that the trust funds are safeguarded against loss 
from unauthorized use or disposition.
    (d) Obtaining a surety bond payable to the United States, as 
follows:
    (1) Subject to the minimum amount of $5,000, the amount of such 
surety bond shall be the lesser of:
    (i) 2% of the agency's disbursements made during the previous 12 
months from all trust accounts attributable to the federal judicial 
districts (or, if not feasible to determine, the states) in which the 
agency seeks approval from the United States Trustee; or
    (ii) Equal to the average daily balance maintained for the 6 months 
immediately prior to submission of the application in all trust 
accounts attributable to the federal judicial districts (or, if not 
feasible to determine, the states) in which the agency seeks approval 
from the United States Trustee;
    (2) The agency may receive an offset or credit against the surety 
bond amount determined under paragraph (d)(1) of this section if:
    (i) The agency has previously obtained a surety bond, or similar 
cash, securities, insurance (other than employee fidelity insurance), 
or letter of

[[Page 6072]]

credit in compliance with the licensing requirements of the state in 
which the agency seeks approval from the United States Trustee;
    (ii) Such 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) Such surety bond, or similar cash, securities, insurance 
(other than employee fidelity insurance), or letter of credit, is 
written in favor of the state or the appropriate state agency; and
    (iv) The amount of the offset or credit shall be the lesser of:
    (A) The principal amount of such surety bond, or similar cash, 
securities, insurance (other than employee fidelity insurance), or 
letter of credit; or
    (B) The surety bond amount determined under paragraph (d)(1) of 
this section;
    (3) If an agency has contracted with an independent contractor to 
administer any part of its debt repayment plans:
    (i) Except as provided in paragraphs (d)(3)(ii) and (iii) of this 
section, the independent contractor shall:
    (A) Be an approved agency; or
    (B) If the independent contractor is not an approved agency, then 
the independent contractor shall:
    (1) Be specifically covered under the agency's surety bond required 
under paragraph (d)(1) of this section; or
    (2) Have a surety bond that meets the requirements of paragraph 
(d)(1) of this section; and
    (C) Agree in writing to allow the United States Trustee to audit 
the independent contractor's trust accounts for the debt repayment 
plans administered on behalf of the agency and to review the 
independent contractor's internal controls and administrative 
procedures;
    (ii) If the independent contractor holds funds for transmission for 
5 days or less, then the amount of the required surety bond under 
paragraph (d)(3)(i)(B) of this section shall be $500,000;
    (iii) If the independent contractor performs only electronic fund 
transfers on the agency's behalf, then the independent contractor need 
not satisfy the requirements of paragraph (d)(3)(i) of this section 
during such time as the independent contractor is authorized by the 
National Automated Clearing House Association to participate in the 
Automated Clearing House system.
    (e) Obtaining either adequate employee bonding or fidelity 
insurance, as follows:
    (1) Subject to the minimum amount set forth below, the amount of 
such bonding or fidelity insurance shall be 50% of the surety bond 
amount calculated under paragraph (d)(1) of this section, prior to any 
offset or credit that the agency may receive under paragraph (d)(2) of 
this section; provided, however, that at a minimum, the employee bond 
or fidelity insurance must be $5,000;
    (2) An agency may receive an offset or credit against the employee 
bond or fidelity insurance amount determined under paragraph (e)(1) of 
this section if:
    (i) The agency has previously obtained an employee bond or fidelity 
insurance in compliance with the requirements of a state in which the 
agency seeks approval from the United States Trustee; and
    (ii) The deductible does not exceed a reasonable amount considering 
the financial resources of the agency; and
    (iii) The amount of the offset or credit shall be the lesser of:
    (A) The principal amount of such employee bond or fidelity 
insurance; or
    (B) The employee bond or fidelity insurance amount determined under 
paragraph (e)(1) of this section.


Sec.  58.24  Procedures for obtaining final agency action on United 
States Trustees' decisions to deny agencies' applications and to remove 
approved agencies from the approved list.

    (a) The United States Trustee shall remove an approved agency from 
the approved list whenever an approved agency requests its removal in 
writing.
    (b) The United States Trustee may issue a decision to remove an 
approved agency from the approved list, and thereby terminate the 
approved agency's authorization to provide counseling services, at any 
time.
    (c) The United States Trustee may issue a decision to deny an 
agency's application or remove an agency from the approved list 
whenever the United States Trustee determines that the agency has 
failed to comply with the standards or requirements specified in 11 
U.S.C.Sec.  109(h) or 111, this rule, or the terms under which the 
United States Trustee designated it to act as an approved agency, 
including but not limited to finding any of the following:
    (1) The agency is not employing adequate procedures for safekeeping 
or paying client funds, which results in a loss to a client;
    (2) The agency's surety bond has been canceled;
    (3) Any entity has revoked the agency's nonprofit status, even if 
that revocation is subject to further administrative or judicial 
litigation, review or appeal;
    (4) Any entity has suspended or revoked the agency's license to do 
business in any jurisdiction; or
    (5) Any United States district court has removed the agency under 
11 U.S.C. 111(e).
    (d) If the Internal Revenue Service revokes an agency's tax exempt 
status, the United States Trustee shall promptly commence an 
investigation to determine whether any of the factors set forth in 
paragraphs (c)(1) through (5) of this section exist.
    (e) The United States Trustee shall provide to the agency in 
writing a notice of any decision either to:
    (1) Deny the agency's application; or
    (2) Remove the agency from the approved list.
    (f) The notice shall state the reason(s) for the decision and shall 
reference any documents or communications relied upon in reaching the 
denial or removal decision. To the extent authorized by law, the United 
States Trustee shall provide to the agency copies of any such documents 
that were not supplied to the United States Trustee by the agency. The 
notice shall be sent to the agency by overnight courier, for delivery 
the next business day.
    (g) Except as provided in paragraph (i) of this section, the notice 
shall advise the agency that the denial or removal decision shall 
become final agency action, and unreviewable, unless the agency submits 
in writing a request for review by the Director no later than 20 
calendar days from the date of the notice to the agency.
    (h) Except as provided in paragraph (i) of this section, the 
decision to deny an agency's application or remove an agency from the 
approved list shall take effect upon:
    (1) The expiration of the agency's time to seek review from the 
Director, if the agency fails to timely seek review of a denial or 
removal decision; or
    (2) The issuance by the Director of a final written decision, if 
the agency timely seeks such review.
    (i) The United States Trustee may provide that a decision to remove 
an agency from the approved list is effective immediately and deny the 
agency the right to provide counseling services whenever the United 
States Trustee finds any of the factors set forth in paragraphs (c)(1) 
through (5) of this section.
    (j) An agency's request for review shall be in writing and shall 
fully describe why the agency disagrees with the denial or removal 
decision, and shall be accompanied by all documents and materials the 
agency wants the Director to consider in reviewing the denial or 
removal decision. The agency shall send the original and one copy of 
the request for review, including all accompanying documents and

[[Page 6073]]

materials, to the Office of the Director by overnight courier, for 
delivery the next business day. In order to be timely, a request for 
review shall be received at the Office of the Director no later than 20 
calendar days from the date of the notice to the agency.
    (k) The United States Trustee shall have 30 calendar days from the 
date of the agency's request for review to submit to the Director a 
written response regarding the matters raised in the agency's request 
for review. The United States Trustee shall provide a copy of this 
response to the agency by overnight courier, for delivery the next 
business day.
    (l) The Director may seek additional information from any party in 
the manner and to the extent the Director deems appropriate.
    (m) In reviewing the decision to deny an agency's application or 
remove an agency from the approved list, the Director shall determine:
    (1) Whether the denial or removal decision is supported by the 
record; and
    (2) Whether the denial or removal decision constitutes an 
appropriate exercise of discretion.
    (n) Except as provided in paragraph (o) of this section, the 
Director shall issue a written final decision no later than 60 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 
deadline. The Director's final decision on the agency's request for 
review shall constitute final agency action.
    (o) Whenever the United States Trustee provides under paragraph (i) 
of this section that a decision to remove an agency from the approved 
list is effective immediately, the Director shall issue a written 
decision no later than 15 calender days from the receipt of the 
agency's request for review, unless the agency agrees to a longer 
period of time, which decision shall:
    (1) Be limited to deciding whether the determination that the 
removal decision should take effect immediately was supported by the 
record and an appropriate exercise of discretion;
    (2) Constitute final agency action only on the issue of whether the 
removal decision should take effect immediately; and
    (3) Not constitute final agency action on the ultimate issue of 
whether the agency should be removed from the approved list; after 
issuing the decision, the Director shall issue a written final decision 
by the deadline set forth in paragraph (n) of this section.
    (p) In reaching a decision under paragraphs (n) and (o) of this 
section, the Director may specify a person to act as a reviewing 
official. The reviewing official's duties shall be specified by the 
Director on a case-by-case basis, and may include reviewing the record, 
obtaining additional information from the participants, providing the 
Director with written recommendations, and such other duties as the 
Director shall prescribe in a particular case.
    (q) An agency that files a request for review shall bear its own 
costs and expenses, including counsel fees.
    (r) When a decision to remove an agency from the approved list 
takes effect, the agency shall:
    (1) Immediately cease providing counseling services to clients and 
shall not agree to provide counseling services to prospective clients;
    (2) No later than 3 business days after the date of removal, issue 
all certificates to all clients who completed counseling services prior 
to the agency's removal from the approved list; and
    (3) No later than 3 business days after the date of removal, return 
all fees to clients and prospective clients who had paid for counseling 
services, but had not completely received them.
    (s) An agency must exhaust all administrative remedies before 
seeking redress in any court of competent jurisdiction.

    Dated: January 18, 2008.
Clifford J. White III,
Director, Executive Office for United States Trustees.
[FR Doc. E8-1451 Filed 1-31-08; 8:45 am]
BILLING CODE 4410-40-P