Federal Register / Vol. 76, No. 104 / Tuesday, May 31, 2011 / Rules and Regulations 31225 

Discussion of Comments 

Notice of Proposed Special 

Conditions no. 25–11–10–SC for the 

Bombardier Model BD–700–1A10 and 

BD–700–1A11 airplanes was published 

in the Federal Register on March 28, 

2011 (76 FR 17062). No comments were 

received, and the special conditions are 

adopted as proposed. 

Applicability 

As discussed above, these special 

conditions are applicable to the 

Bombardier Model BD–700–1A10 and 

BD–700–1A11 airplanes. Should 

Bombardier Inc. apply at a later date for 

a change to the type certificate to 

include another model incorporating the 

same novel or unusual design feature, 

the special conditions would apply to 

that model as well. 

Conclusion 

This action affects only certain novel 

or unusual design features on 

Bombardier Model BD–700–1A10 and 

BD–700–1A11 airplanes. It is not a rule 

of general applicability. 

List of Subjects in 14 CFR Part 25 

Aircraft, Aviation safety, Reporting 

and recordkeeping requirements. 

The authority citation for these 

special conditions is as follows: 

Authority: 49 U.S.C. 106(g), 40113, 44701, 

44702, 44704. 

The Special Conditions 

Accordingly, pursuant to the 

authority delegated to me by the 

Administrator, the following special 

conditions are issued as part of the typecertification basis for Bombardier Model 

BD–700–1A10 and BD–700–1A11 

airplanes. 

1. During any phase of flight in which 

it is to be used, the SVS imagery on the 

HUD must not degrade flight safety or 

interfere with the effective use of 

outside visual references for required 

pilot tasks. 

2. To avoid unacceptable interference 

with the safe and effective use of the 

pilot-compartment view, the SVS must 

meet the following requirements: 

a. The SVS design must minimize 

unacceptable display characteristics or 

artifacts (e.g., terrain shadowing against 

a dark background) that obscure the 

desired image of the scene, impair the 

pilot’s ability to detect and identify 

visual references, mask flight hazards, 

distract the pilot, or otherwise degrade 

task performance or safety. 

b. Control of SVS image display 

brightness must be sufficiently effective 

in dynamically changing background 

(ambient) lighting conditions to avoid 

pilot distraction, impairment of the 

pilot’s ability to detect and identify 

visual references, masking of flight 

hazards, or to otherwise degrade task 

performance or safety. If automatic 

control for image brightness is not 

provided, it must be shown that a 

single, manual setting is satisfactory for 

the range of lighting conditions 

encountered during a time-critical, highworkload phase of flight (e.g., lowvisibility instrument approach). 

c. A readily accessible control must be 

provided that permits the pilot to 

immediately deactivate and reactivate 

display of the SVS image on demand, 

without having to remove hands from 

the flight controls and throttles. 

d. The SVS image on the HUD must 

not impair the pilot’s use of guidance 

information, or degrade the presentation 

and pilot awareness of essential flight 

information displayed on the HUD, such 

as alerts, airspeed, attitude, altitude and 

direction, approach guidance, 

windshear guidance, TCAS resolution 

advisories, or unusual-attitude recovery 

cues. 

e. The SVS image and the HUD 

symbols, which are spatially referenced 

to the pitch scale, outside view, and 

image, must be scaled and aligned (i.e., 

conformal) to the external scene. In 

addition, the SVS image and the HUD 

symbols—when considered singly or in 

combination—must not be misleading, 

cause pilot confusion, or increase 

workload. Airplane attitudes or crosswind conditions may cause certain 

symbols (e.g., the zero-pitch line or 

flight-path vector) to reach field-of-view 

limits, such that they cannot be 

positioned conformally with the image 

and external scene. In such cases, these 

symbols may be displayed but with an 

altered appearance that makes the pilot 

aware that they are no longer displayed 

conformally (for example, ‘‘ghosting’’). 

The combined use of symbology and 

runway image may not be used for path 

monitoring when path symbology is no 

longer conformal. 

f. A HUD system used to display SVS 

images must, if previously certified, 

continue to meet all of the requirements 

of the original approval. 

3. The safety and performance of the 

pilot tasks associated with the use of the 

pilot-compartment view must be not be 

degraded by the display of the SVS 

image. These tasks include the 

following: 

a. Detection, accurate identification 

and maneuvering, as necessary, to avoid 

traffic, terrain, obstacles, and other 

flight hazards. 

b. Accurate identification and 

utilization of visual references required 

for every task relevant to the phase of 

flight. 

4. Appropriate limitations must be 

stated in the Operating Limitations 

section of the Airplane Flight Manual to 

prohibit the use of the SVS for functions 

that have not been found to be 

acceptable. 

Issued in Renton, Washington, on May 20, 

2011. 

Ali Bahrami, 

Manager, Transport Airplane Directorate, 

Aircraft Certification Service. 

[FR Doc. 2011–13341 Filed 5–27–11; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF JUSTICE 

28 CFR Part 58 

[Docket No.: EOUST 103] 

RIN 1105–AB16 

Procedures Governing Administrative 

Review of a United States Trustee’s 

Decision To Deny a Chapter 12 or 

Chapter 13 Standing Trustee’s Claim of 

Actual, Necessary Expenses 

AGENCY: Executive Office for United 

States Trustees (‘‘EOUST’’), Justice. 

ACTION: Final rule. 

SUMMARY: This final rule (‘‘rule’’) sets 

forth the procedures for a chapter 12 or 

chapter 13 standing trustee (‘‘trustee’’) 

to obtain administrative review of a 

United States Trustee’s decision to deny 

a trustee’s claim that certain expenses 

are actual and necessary for the 

administration of bankruptcy cases. The 

Bankruptcy Abuse Prevention and 

Consumer Protection Act of 2005 

(‘‘BAPCPA’’) requires that trustees 

exhaust all administrative remedies 

pertaining to a denial of a claim of 

actual, necessary expenses before 

seeking judicial review, and the 

Attorney General prescribe procedures 

for administrative review of such 

denials. This rule ensures that the 

process for administratively reviewing a 

United States Trustee’s denial of a 

trustee’s request for expenses is fair and 

effective. 

DATES: Effective Date: This rule is 

effective June 30, 2011. 

ADDRESSES: Executive Office for United 

States Trustees (‘‘EOUST’’), 20 

Massachusetts Ave., NW., 8th Floor, 

Washington, DC 20530. 

FOR FURTHER INFORMATION CONTACT: 

Ramona D. Elliott, General Counsel, or 

Larry Wahlquist, Office of General 

Counsel, at (202) 307–1399 (not a tollfree number). 

SUPPLEMENTARY INFORMATION: On August 

14, 2009, at 74 FR 41,101, EOUST 


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published a proposed rule on this topic. 

Before the comment period closed on 

October 13, 2009, EOUST received two 

comments. The comments received and 

EOUST’s responses are discussed 

below. 

Discussion 

The administration of all chapter 12 

and chapter 13 bankruptcy cases is 

entrusted to private persons who are 

case or standing trustees under the 

supervision and oversight of a regional 

United States Trustee. As distinguished 

from case or standing trustees, United 

States Trustees are employees of the 

Department of Justice. A standing 

trustee is appointed by the United States 

Trustee under 28 U.S.C. 586 and 

administers more than one chapter 12 or 

chapter 13 case, as opposed to a case 

trustee who is appointed under 11 

U.S.C. 1202 or 11 U.S.C. 1302 and who 

administers only the case to which the 

trustee is appointed. This rule addresses 

the right, conferred by the BAPCPA, of 

a standing trustee to obtain 

administrative review when the 

trustee’s request for projected expenses, 

referred to as a ‘‘claim of actual, 

necessary expenses’’ in 28 U.S.C. 

586(e)(3), is denied by the United States 

Trustee. 

When a debtor files for bankruptcy 

relief under chapter 12 or chapter 13, 

the debtor proposes a plan to pay his or 

her creditors a percentage of the 

amounts owed to creditors over a 

specified period of time and obtains 

court approval of this plan. This process 

is termed confirming a chapter 12 or 

chapter 13 plan. Once the bankruptcy 

court confirms the plan, the trustee will 

oversee the payment of creditors 

pursuant to the plan. The debtor pays 

plan payments to the trustee and the 

trustee then disburses the appropriate 

amounts to creditors. 

As part of the process of 

administering debtors’ cases, a trustee 

incurs expenses. A trustee is authorized 

to collect a specified percentage from 

debtors’ plan payments to pay for these 

expenses. However, before incurring 

expenses, a trustee obtains approval 

from the United States Trustee. As the 

first step in obtaining United States 

Trustee approval for expenses, the 

United States Trustee requires that the 

trustee submit a budget for the 

anticipated expenses for the fiscal year. 

The fiscal year for the chapter 12 

standing trustee ends each June 30th; 

the fiscal year for the chapter 13 

standing trustee ends each September 

30th. Next, these projected expenses are 

evaluated by the United States Trustee 

who will either approve the expenses or 

require modifications to the proposed 

budget. Once the United States Trustee 

approves the trustee’s budget, the 

trustee is notified of this approval, and 

pursuant to 28 U.S.C. 586(e), the 

trustee’s compensation and a specified 

percentage fee that the trustee may 

collect from debtors’ plan payments are 

authorized. This fee is to be used for 

payment of the approved expenses 

incurred during the fiscal year as well 

as for the trustee’s compensation. 

When a trustee realizes that expenses 

for the current year might exceed the 

approved amount, a trustee must submit 

a request to the United States Trustee, 

and obtain approval, before incurring 

expenses above the approved amount. 

This request must be submitted when 

the increase to an individual expense 

line item is greater than both 10% of the 

budgeted amount and $5,000.00. 

Expenses for certain items require prior 

United States Trustee approval 

regardless of amount. These expenses 

currently are increases in the amount 

budgeted for specified employee 

expenses, increases in office lease 

obligations, payments to the standing 

trustee or relative of the standing 

trustee, and expenses for any item not 

originally contained in the approved 

budget. This policy is set forth in the 

Handbook for Chapter 13 Standing 

Trustees which is posted on the 

EOUST’s Web site and will be 

incorporated in the revised Handbook 

for Chapter 12 Standing Trustees. If any 

other expenses are added to this list, the 

United States Trustee will notify 

trustees via e-mail or regular mail at 

least 30 days before including the new 

expenses in a revision to the Handbook. 

If a trustee disagrees with the United 

States Trustee’s denial of the trustee’s 

proposed budget or request for 

additional expenses, the trustee may 

seek administrative review of the denial 

under the procedures identified in this 

rule. The Director of EOUST 

(‘‘Director’’) will conduct a de novo 

review of the United States Trustee’s 

decision to determine whether the 

record supports the United States 

Trustee’s decision and whether the 

decision was an appropriate exercise of 

the United States Trustee’s discretion or 

contrary to law. 

With the passage of BAPCPA, 

Congress directed the Attorney General 

to prescribe procedures implementing 

administrative review for trustees when 

a claim of actual, necessary expenses is 

denied. The Attorney General delegated 

this authority to the Director. In 

response to this congressional mandate, 

the Director publishes this rule, which 

establishes such procedures. This rule 

imposes requirements only upon 

standing trustees who are supervised by 

United States Trustees. In addition, this 

rule addresses only the United States 

Trustee’s denial of a trustee’s claim of 

actual, necessary expenses. This rule 

does not address the suspension or 

termination of trustees. EOUST will 

publish another notice of proposed 

rulemaking that addresses the 

suspension or termination of trustees 

with a RIN number of 1105–AB12. 

Summary of Changes in Final Rule 

The final rule differs from the 

proposed rule in the following ways: 

• The administrative review process 

has been expedited by shortening the 

time for a trustee to request review by 

the Director from 30 calendar days to 21 

calendar days after receiving a notice of 

denial of expenses from the United 

States Trustee or after the expenses were 

deemed denied. Similarly, the United 

States Trustee’s time to respond to the 

trustee’s request for review has been 

shortened from 30 calendar days to 21 

calendar days. These changes are 

reflected in paragraphs (e) and (h). 

• Paragraphs (c)(1), (c)(2), and (k) 

have been revised to eliminate the 

reference to ‘‘the deadline’’ so that the 

review process cannot arbitrarily be 

delayed by setting long deadlines when 

the United States Trustee or the Director 

seeks the submission of additional 

information. 

• Paragraph (i) has been revised to 

include the word ‘‘non-privileged’’ 

before ‘‘information’’ in order to make it 

consistent with paragraph (d) and so 

that it is clear that the rule does not seek 

to waive a trustee’s right to assert 

traditional privileges. 

• The rule has been revised to reflect 

differences in chapter 12 and chapter 13 

fiscal years. 

Discussion of Public Comments 

EOUST received two comments on 

the proposed rule, one of which had 

several sub-comments within it. EOUST 

has considered each comment carefully 

and appreciates the time and effort 

required to prepare and submit each 

comment. EOUST’s responses to the 

comments are discussed below. 

1. Deadlines—Expediting the 

Administrative Review Process 

Comment: One comment expressed 

concern that the time limits in the rule 

allowed too much time to elapse before 

a final decision by the Director must be 

issued. The comment suggested 

shortening the deadlines for various 

stages during the administrative review 

process. Specifically, the comment 

recommended the United States Trustee 

deny a budget line item no later than 

October 10, the trustee appeal within 15 


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Federal Register / Vol. 76, No. 104 / Tuesday, May 31, 2011 / Rules and Regulations 31227 

days, the United States Trustee respond 

within 10 days, and the Director issue 

a decision within 90 days of the 

trustee’s request for review. 

Response: EOUST recognizes that the 

administrative review process can be 

lengthy at times and has revised the rule 

to shorten the process as much as 

possible. However, sufficient time must 

be granted to the trustee, United States 

Trustee, and the Director to perform 

their respective duties to ensure a fair 

and just resolution is accomplished. In 

order to balance the competing interests 

of a quick resolution with that of 

obtaining the most equitable resolution 

that is fair to all parties, EOUST has 

modified some of the deadlines in the 

rule. Although the comment did not 

reference the time line for the chapter 

12 trustee, the same concern would 

exist. Specifically, the time for a trustee 

to request review by the Director is 

shortened from 30 calendar days to 21 

calendar days from the date of the 

United States Trustee’s notice of denial 

or 21 calendar days from the date on 

which the trustee’s expenses were 

deemed denied by the United States 

Trustee. Similarly, the United States 

Trustee’s deadline for responding to the 

trustee’s request for review has been 

shortened from 30 calendar days to 21 

calendar days. 

EOUST has not, however, modified 

the deadline for the United States 

Trustee to issue a denial of a trustee’s 

requested expenses—July 30 for chapter 

12 standing trustee expenses and 

October 31 for chapter 13 standing 

trustee expenses. Though trustees are 

generally required to submit a budget 

delineating the trustee’s expenses by 

May 1 for chapter 12 trustees and July 

1 for chapter 13 trustees, this is not 

always the case in every region, and 

many trustees submit budgets after the 

due date. In addition, it is not an 

infrequent occurrence for a chapter 12 

trustee to submit a budget after June 1 

or a chapter 13 trustee to submit a 

budget after September 1. When this 

occurs, the United States Trustee must 

have sufficient time to thoroughly 

review the trustee’s proposed expenses. 

Thus, in order to ensure the United 

States Trustee has adequate time to 

review every trustee’s expenses, 

including those submitted late, EOUST 

declines to modify the rule to require 

the United States Trustee to issue a 

denial by July 10 for chapter 12 trustees 

and by October 10 for chapter 13 

trustees. 

2. Deadlines—Eliminating Delays for 

Submission of Additional Information 

Comment: One comment pointed out 

that the language in the rule could 

significantly extend the time limits for 

reaching a resolution. In paragraphs 

(c)(1), (c)(2), and (k), the rule states that 

if the United States Trustee or the 

Director seeks additional information, 

the time period for resolution or denial 

is extended to 30 days beyond ‘‘the 

deadline for submission of the 

additional information.’’ The comment 

stated this could be read to allow the 

United States Trustee or the Director to 

set a long deadline for the submission 

of additional information, and thereby 

delay the review process. 

Response: EOUST concurs that these 

paragraphs could be interpreted as the 

comment indicated, though that was not 

the intent. Accordingly, EOUST has 

modified paragraphs (c)(1), (c)(2), and 

(k) to eliminate the reference to ‘‘the 

deadline’’ so that the review process 

continues upon the submission of the 

additional information and cannot 

arbitrarily be delayed by setting long 

deadlines for the submission of that 

additional information. 

3. Denying Expenses—Adding ‘‘Good 

Cause’’ Justification 

Comment: One comment 

acknowledged that the rule does not 

require the United States Trustee to 

deny a trustee’s claim for expenses 

when a trustee commits one of the 

reasons for denial as enunciated in 

paragraphs (b)(1) through (7), and that 

the United States Trustee possesses 

discretion to determine whether denial 

is appropriate. However, the comment 

advocated that the rule should include 

a ‘‘good cause’’ provision so that the 

United States Trustee may deny the 

trustee’s claim for expenses only if the 

trustee’s failure is without ‘‘good 

cause.’’ 

Response: This change is unnecessary 

and could potentially transfer the 

burden of proof from the trustee to the 

United States Trustee when 

adjudicating a trustee’s request for 

review. As the comment concedes, the 

rule does not eliminate the United 

States Trustee’s discretion to approve or 

deny a trustee’s claim for expenses. 

The rule was intentionally drafted 

this way to provide the United States 

Trustee with sufficient flexibility to 

approve expenses, in appropriate 

circumstances, even when a trustee 

engages in one of the enumerated 

reasons for denial. EOUST agrees that 

the rule must have sufficient flexibility 

to account for special circumstances, 

such as the inability to obtain prior 

approval of an expense due to a flood 

or other natural disaster, which is 

precisely why the rule provides the 

United States Trustee with discretion. In 

addition, the rule requires the United 

States Trustee to communicate with the 

trustee in an attempt to resolve any 

dispute before issuing a notice of denial. 

Thus, the trustee will have ample 

opportunity to explain any reason or 

‘‘good cause’’ to the United States 

Trustee, necessitating the immediate 

expenditures and which prevented the 

trustee from obtaining prior approval of 

such expenses. 

As the rule is currently written, the 

United States Trustee possesses the 

discretion to deny a trustee’s claim for 

expenses if the trustee engages in one of 

the delineated reasons for denial (or 

some similar reason). If an emergency 

situation caused the trustee to commit 

one of these failures, then the trustee 

can explain the emergency to the United 

States Trustee who may then decide that 

the claim for expenses may be 

approved. Or, if the United States 

Trustee feels the emergency did not 

warrant the trustee’s failure, then the 

claim for expenses may be denied. 

If the United States Trustee denies the 

claim for expenses, then the trustee may 

request the Director to review the 

United States Trustee’s decision, and 

may present the emergency situation to 

the Director as a justifiable reason or 

‘‘good cause.’’ 

The crucial point is that the trustee 

has the opportunity to explain why an 

emergency situation caused the trustee’s 

failure and the United States Trustee 

has the flexibility under the rule to 

approve or disapprove depending on 

what is most appropriate in the 

individual circumstances. Because the 

rule provides sufficient flexibility for 

emergency situations as written, there is 

no need to create a ‘‘good cause’’ 

provision. Moreover, the addition of a 

’’good cause’’ exception may 

inappropriately require the United 

States Trustee to prove that the ‘‘good 

cause’’ was insufficient to justify the 

trustee’s failure before denying a claim 

for expenses, effectively transferring the 

burden of proving whether a trustee’s 

failure was justified from the trustee to 

the United States Trustee. EOUST 

believes the trustee should bear the 

burden of proof in demonstrating 

whether a sufficient reason exists for 

excusing the trustee’s failure. 

Accordingly, EOUST declines to modify 

the rule as proposed by the comment. 

4. Privileged Documents 

Comment: One comment pointed out 

that paragraph (d) requires the United 

States Trustee to provide ‘‘nonprivileged’’ documents to the Director 

while paragraph (i) allows the Director 

to seek ‘‘additional information from 

any party.’’ The comment expressed 

concern that the asymmetry between 


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these two paragraphs could mean that 

the rule intends to waive the trustee’s 

right to assert traditional privileges. 

Response: The asymmetry between 

the two paragraphs is inadvertent. 

EOUST is not attempting to waive a 

trustee’s right to assert traditional 

privileges. Paragraph (i) is revised to 

include ‘‘non-privileged’’ before 

‘‘information.’’ 

5. Percentage Fees 

Comment: One comment proposed 

striking the language stating that this 

rule does not authorize a trustee to seek 

review of any decision to change the 

trustee’s percentage fee, concluding that 

the review of expenses without the 

review of the percentage fee is 

meaningless. 

Response: The setting of the trustee’s 

percentage fee and the allowance or 

disallowance of expenses, though 

related, are not inextricably tied 

together. Though the amount of a 

trustee’s expenses is one factor in 

determining the trustee’s percentage fee, 

it is not the only factor. A change in the 

level of expenses may or may not 

necessitate a change in a trustee’s 

percentage fee. Further, 28 U.S.C. 

586(e)(3) specifically requires the 

Attorney General to develop procedures 

for a standing trustee to obtain 

administrative review of the United 

States Trustee’s decision to deny the 

trustee’s claim for actual, necessary 

expenses. It is important to note that 

this right to review is expressly limited 

to the denial of a claim for expenses, not 

the setting of the trustee’s percentage 

fee. In order to maintain the scope of 

review mandated by Congress, EOUST 

declines to modify the rule as requested 

by the comment. 

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. This rule is not a 

‘‘significant regulatory action’’ as 

defined by Executive Order 12866 and, 

accordingly, this rule has not 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 for 

prosecuting an administrative appeal of 

the United States Trustee’s denial of a 

trustee’s claim of actual, necessary 

expenses. The anticipated costs are the 

compiling, photocopying and mailing of 

the requested records. However, none of 

these costs are new. This rule simply 

codifies the current practice for 

obtaining administrative review of the 

United States Trustee’s decision. 

The benefits of this rule include the 

codification of the process for a trustee 

to obtain administrative review of the 

United States Trustee’s denial of a 

trustee’s claim of actual, necessary 

expenses. These benefits justify its costs 

in complying with Congress’ mandate to 

prescribe procedures to implement 28 

U.S.C. 586(e)(3). 

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 

This rule does not contain an 

information collection under the 

Paperwork Reduction Act (44 U.S.C. 

3501, et seq.). If a trustee wishes to 

appeal the United States Trustee’s 

decision, the trustee submits a request 

for review to the Director detailing the 

specific factual circumstances 

supporting the trustee’s argument. 

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 the fact 

that this rule does not impose any new 

costs upon trustees that did not already 

exist under the current administrative 

review process. In addition, the costs of 

compiling, photocopying and mailing 

records are de minimis. 

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. 

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 amended as follows: 

PART 58—[AMENDED] 

■ 1. The authority citation for Part 58 

continues 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 § 58.11 to read as follows: 

§ 58.11 Procedures governing 

administrative review of a United States 

Trustee’s decision to deny a Chapter 12 or 

Chapter 13 standing Trustee’s claim of 

actual, necessary expenses. 

(a) The following definitions apply to 

this section. These terms shall have 

these meanings: 

(1) The term claim of actual, 

necessary expenses means the request 

by a chapter 12 or chapter 13 standing 

trustee for the United States Trustee’s 

approval of the trustee’s projected 

expenses for each fiscal year budget, or 

for an amendment to the current budget 

when an increase in an individual 

expense line item is greater than both 

10% of the budgeted amount and 

$5,000.00. Expenses for certain items 

require prior United States Trustee 

approval regardless of amount; 

(2) The term director means the 

person designated or acting as the 

Director of the Executive Office for 

United States Trustees; 

(3) The term final decision means the 

written determination issued by the 

Director based upon the review of the 

United States Trustee’s decision to deny 

all or part of a trustee’s claim of actual, 

necessary expenses; 


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Federal Register / Vol. 76, No. 104 / Tuesday, May 31, 2011 / Rules and Regulations 31229 

(4) The term notice means the written 

communication from the United States 

Trustee to a trustee that the trustee’s 

claim of actual, necessary expenses has 

been denied in whole or in part; 

(5) The term request for review means 

the written communication from a 

trustee to the Director seeking review of 

the United States Trustee’s decision to 

deny, in whole or in part, the trustee’s 

claim of actual, necessary expenses; 

(6) The term trustee means an 

individual appointed by the United 

States Trustee under 28 U.S.C. 586(b) to 

serve as the standing trustee for chapter 

12 or chapter 13 cases in a particular 

region; and 

(7) The term United States Trustee 

means, alternatively: 

(i) A United States Trustee appointed 

under 28 U.S.C. 581; or 

(ii) A person acting as a United States 

Trustee under 28 U.S.C. 585. 

(b) The United States Trustee may 

issue a decision to deny a trustee’s 

claim of actual, necessary expenses. 

Reasons for denial include, but are not 

limited to, finding that the trustee failed 

to do any of the following: 

(1) Provide to the United States 

Trustee sufficient justification for the 

expense; 

(2) Demonstrate to the United States 

Trustee that the expense is a cost 

effective use of funds; 

(3) Demonstrate to the United States 

Trustee that the expense is reasonably 

related to the duties of the trustee; 

(4) Obtain authorization from the 

United States Trustee prior to making an 

expenditure that was not provided for in 

the current budget; 

(5) Provide the United States Trustee 

with documents, materials, or other 

information pertaining to the expense; 

(6) Timely submit to the United States 

Trustee accurate budgets or requests for 

amendment of budgets to cover the 

additional expense; or 

(7) Demonstrate to the United States 

Trustee that the expense is directly 

related to office operations. 

(c) Before issuing a notice of denial, 

the United States Trustee shall 

communicate in writing with the trustee 

in an attempt to resolve any dispute 

over a claim of actual, necessary 

expenses: 

(1) For disputes involving the 

trustee’s projected expenses for the 

upcoming fiscal year budget, the United 

States Trustee shall either resolve the 

dispute or issue a notice of denial no 

later than July 30 of the current calendar 

year for a chapter 12 standing trustee or 

October 31 of the current calendar year 

for a chapter 13 standing trustee, or if 

the United States Trustee has requested 

additional information, 30 calendar 

days from submission of the additional 

information if such submission is after 

July 1 for a chapter 12 standing trustee 

or October 1 for a chapter 13 standing 

trustee, unless the trustee and United 

States Trustee agree to a longer period 

of time. Any projected expenses not 

specifically disputed shall be approved 

in the ordinary course and the trustee’s 

fee shall be set on an interim basis; 

(2) For disputes over amendments to 

the current year budget, the United 

States Trustee shall either resolve the 

dispute or issue a notice of denial no 

later than 30 calendar days after the 

trustee’s amendment request, or if the 

United States Trustee has requested 

additional information, 30 calendar 

days from submission of the additional 

information, unless the trustee and the 

United States Trustee agree to a longer 

period of time. Any portion of the 

amendment not specifically disputed 

shall be approved in the ordinary 

course; 

(3) If the United States Trustee does 

not resolve the dispute or issue a notice 

of denial within the time frames 

identified in (c)(1) or (2) of this section, 

the trustee’s claim of actual, necessary 

expenses shall be deemed denied on the 

next business day following expiration 

of the time frames identified in (c)(1) or 

(2) of this section. 

(d) The United States Trustee shall 

notify a trustee in writing of any 

decision denying a trustee’s claim of 

actual, necessary expenses. The notice 

shall state the reason(s) for the decision 

and shall reference any documents or 

communications relied upon in 

reaching the decision. The United States 

Trustee shall provide to the trustee 

copies of any such non-privileged 

documents that were not supplied to the 

United States Trustee by the trustee. 

The notice shall be sent to the trustee by 

overnight courier, for delivery the next 

business day. 

(e) The notice shall advise the trustee 

that the decision is final and 

unreviewable unless the trustee requests 

in writing a review by the Director no 

later than 21 calendar days from the 

date of the notice to the trustee. If the 

United States Trustee did not issue a 

notice of denial, and the expenses were 

deemed denied under (c)(3) of this 

section, the trustee shall have 21 

calendar days from the date on which 

the expenses were deemed denied to 

submit a request for review to the 

Director. 

(f) The decision to deny a trustee’s 

claim of actual, necessary expenses 

shall take effect upon the expiration of 

a trustee’s time to seek review from the 

Director or, if the trustee timely seeks 

such review, upon the issuance of a 

final decision by the Director. 

(g) The trustee’s request for review 

shall be in writing and shall fully 

describe why the trustee disagrees with 

the United States Trustee’s decision, 

and shall be accompanied by all 

documents and materials the trustee 

wants the Director to consider in 

reviewing the United States Trustee’s 

decision. The trustee shall send the 

original and one copy of the request for 

review, including all accompanying 

documents and materials, to the Office 

of the Director by overnight courier, for 

delivery the next business day. In order 

to be timely, a request for review shall 

be received at the Office of the Director 

no later than 21 calendar days from the 

date of the notice to the trustee or the 

date the expenses were deemed denied. 

The trustee shall also send a copy of the 

request for review to the United States 

Trustee by overnight courier, for 

delivery the next business day. 

(h) The United States Trustee shall 

have 21 calendar days from the date of 

the trustee’s request for review to 

submit to the Director a written 

response regarding the matters raised in 

the trustee’s request for review. The 

United States Trustee shall provide a 

copy of this response to the trustee by 

overnight courier, for delivery the next 

business day. 

(i) The Director may seek additional 

non-privileged information from any 

party, in the manner and to the extent 

the Director deems appropriate. 

(j) In reviewing the decision to deny 

a trustee’s claim of actual, necessary 

expenses, the Director shall determine: 

(1) Whether the decision is supported 

by the record; and 

(2) Whether the decision constitutes 

an appropriate exercise of discretion. 

(k) The Director shall issue a final 

decision no later than 90 calendar days 

from the receipt of the trustee’s request 

for review, or, if the Director has 

requested additional information, 30 

calendar days from submission of the 

additional information, unless the 

trustee agrees to a longer period of time. 

The Director’s final decision on the 

trustee’s request for review shall 

constitute final agency action. 

(l) In reaching a final decision the 

Director may specify a person to act as 

a reviewing official. The reviewing 

official may not be under the 

supervision of the United States Trustee 

who denied the trustee’s claim of actual, 

necessary expenses. 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 


rmajette on DSK89S0YB1PROD with RULES
31230 Federal Register / Vol. 76, No. 104 / Tuesday, May 31, 2011 / Rules and Regulations 

with written recommendations, and 

such other duties as the Director shall 

prescribe in a particular case. 

(m) This rule does not authorize a 

trustee to seek review of any decision to 

change maximum annual compensation, 

to decrease or increase appointments of 

trustees in a region or district, to change 

the trustee’s percentage fee, or to 

suspend, terminate, or remove a trustee. 

(n) A trustee must exhaust all 

administrative remedies before seeking 

redress in any court of competent 

jurisdiction. 

Dated: May 12, 2011. 

Clifford J. White III, 

Director, Executive Office for United States 

Trustees. 

[FR Doc. 2011–12187 Filed 5–27–11; 8:45 am] 

BILLING CODE 4410–40–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 161 

[Docket No. USCG–1998–4399] 

RIN 1625–AA58 

Vessel Traffic Service Lower 

Mississippi River; Correction 

AGENCY: Coast Guard, DHS. 

ACTION: Final rule; correction. 

SUMMARY: The United States Coast 

Guard published a final rule in the 

Federal Register on October 28, 2010 

(75 FR 66309) establishing a mandatory 

participation Vessel Traffic Service 

(VTS) on the Lower Mississippi River 

and transferring certain vessel traffic 

management provisions of the 

Mississippi River, Louisiana—Regulated 

Navigation Area to the VTS. That 

document inadvertently transposed the 

coordinates for two of the reporting 

points for the Algiers Point Special 

Area. 

DATES: Effective on May 31, 2011. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this correcting 

amendment or the corresponding rule, 

call or e-mail Lieutenant Commander 

Jim Larson, Office of Shore Forces (CG– 

7413), Coast Guard; telephone 202–372– 

1554, e-mail James.W.Larson@uscg.mil. 

If you have questions on viewing the 

docket, call Renee V. Wright, Program 

Manager, Docket Operations, telephone 

202–366–9826. 

SUPPLEMENTARY INFORMATION: This 

amendment corrects a previously 

printed error in the final rule that 

mistakenly transposed geographic 

coordinates for the Algiers Canal 

Forebay and Huey P Long Bridge 

reporting points in Table 161.65(f), VTS 

Lower Mississippi River Reporting 

Points. 

List of Subjects in 33 CFR Part 161 

Harbors, Navigation (water), 

Reporting and recordkeeping 

requirements, Vessels, Waterways. 

Accordingly, 33 CFR part 161 is 

corrected by making the following 

correcting amendment: 

PART 161—VESSEL TRAFFIC 

MANAGEMENT 

■ 1. The authority citation for part 161 

continues to read as follows: 

Authority: 33 U.S.C. 1223, 1231; 46 U.S.C. 

70114, 70119; Pub. L. 107–295, 116 Stat. 

2064; Department of Homeland Security 

Delegation No. 0170.1. 

■ 2. In § 161.65, revise Table 161.65(f) to 

read as follows: 

§ 161.65 Vessel Traffic Service Lower 

Mississippi River. 

* * * * * 

(f) * * * 

TABLE 161.65(f)—VTS LOWER MISSISSIPPI RIVER REPORTING POINTS

Designator Geographic name Geographic 

description 

Latitude/longitude/mile 

marker Notes 

A .............. Algiers Canal Forebay ....... 88.0 AHP ..... 29°55.40′ N; 89°57.7′ W .... Upbound transiting Algiers Point Special Area. 

B .............. Industrial Canal .................. 92.7 AHP ..... 29°57.2′ N; 90°01.68′ W .... Upbound transiting Algiers Point Special Area. 

C .............. Crescent Towing Smith 

Fleet.

93.5 AHP ..... 29°57.50′ N; 90°02.62′ W .. Upbound Towing vessels transiting Algiers Point Special Area. 

D .............. Marlex Terminal (Naval 

Ships).

99.0 AHP ..... 29°54.65′ N; 90°05.87′ W .. Downbound transiting Algiers Point Special Area. 

E .............. Huey P Long Bridge .......... 106.1 AHP ... 29°56.6′ N; 90°10.1′ W ...... Downbound transiting Algiers Point Special Area. 

Dated: May 24, 2011. 

Kathryn A. Sinniger, 

Chief, Office of Regulations and 

Administrative Law, United States Coast 

Guard. 

[FR Doc. 2011–13332 Filed 5–27–11; 8:45 am] 

BILLING CODE 9110–04–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket No. USCG–2011–0375] 

RIN 1625–AA00 

Safety Zone; M.I.T.’s 150th Birthday 

Celebration Fireworks, Charles River, 

Boston, MA 

AGENCY: Coast Guard, DHS. 

ACTION: Temporary final rule. 

SUMMARY: The Coast Guard is 

establishing a temporary safety zone 

within the Sector Boston Captain of the 

Port (COTP) Zone for the M.I.T.’s 150th 

Birthday Celebration Fireworks display. 

This safety zone is necessary to provide 

for the safety of life on navigable waters 

during the fireworks event. Entering 

into, transiting through, mooring or 

anchoring within this zone is prohibited 

unless authorized by the COTP or the 

designated on-scene representative. 

DATES: This rule is effective and will be 

enforced from 9 p.m. to 10 p.m. on June 

4, 2011. 

ADDRESSES: Documents indicated in this 

preamble as being available in the 

docket are part of docket USCG–2011– 

0375 and are available online by going 

to http://www.regulations.gov, inserting 

USCG–2011–0375 in the ‘‘Keyword’’ 


rmajette on DSK89S0YB1PROD with RULES