Federal Register proposed rules — 1995-12-15

issue-1995-12-15Federal Register proposed rules — 1995-12-15Proposed Regulation

Abrir fonte

Published Federal Register documents, not public-inspection drafts. The GPO XML/text rendition is a research aid; the linked complete official PDF retains the printed layout and all graphics. Graphics are retained in that PDF and are not independently reproduced in this text rendition. Publication does not establish that every provision remains legally in force.

FR Doc. 95-30601 Toxic Chemical Release Reporting; Community Right-to-Know; Reopening of Public Comment Period; Correction
[Federal Register Volume 60, Number 241 (Friday, December 15, 1995)]
[Proposed Rules]
[Pages 64407-64408]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30601]

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 372

[OPPTS-400097B; FRL-4991-4]

Toxic Chemical Release Reporting; Community Right-to-Know; 
Reopening of Public Comment Period; Correction

AGENCY: Environmental Protection Agency (EPA).

ACTION: Reopening of public comment period; correction.

-----------------------------------------------------------------------

SUMMARY: In the Federal Register of October 27, 1995, EPA published an 
administrative stay of the reporting requirements under section 313 of 
the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA) 
and section 6607 of the Pollution Prevention Act of 1990 (PPA), for 
2,2-dibromo-3-nitrilopropionamide (DBNPA) (Chemical Abstracts Service 
(CAS) No. 10222-01-2). The administrative stay also requested comment 
on EPA's review of a petition to delete DBNPA from the EPCRA section 
313 list of toxic chemicals. The period for accepting comments on EPA's 
review of the petition ended on November 27, 1995. EPA has received a 
request to extend the comment period and is granting that request by 
reopening the comment period for 45 days. In addition, this document 
corrects an error in the October 27, 1995 notice. The green algal 
toxicity value was incorrectly listed.

DATES: All comments must be received on or before January 29, 1996.

ADDRESSES: Written comments should be submitted in triplicate to : OPPT 
Docket Clerk (7407), TSCA Nonconfidential Information Center (NCIC), 
Office of Pollution Prevention and Toxics, Environmental Protection 
Agency, Rm. NE-B607, 401 M St., SW., Washington, DC 20460.
    Comments and data may also be submitted electronically by sending 
electronic mail (e-mail) to: [email protected]. Electronic comments 
must be submitted as an ASCII file avoiding the use of special 
characters and any form of encryption. Comments and data will also be 
accepted on disks in WordPerfect in 5.1 file format or ASCII file 
format. All comments and data in electronic form must be identified by 
the docket number OPPTS-400097. No CBI should be submitted through e-
mail. Electronic comments on the information presented in this document 
may be filed online at many Federal Depository Libraries.
FOR FURTHER INFORMATION CONTACT: Maria J. Doa, Project Manager, 202-
260-9592, e-mail: [email protected] for specific information on 
this action. For general information on EPCRA section 313, contact the 
Emergency Planning and Community Right-to-Know Hotline, Environmental 
Protection Agency, Mail Code 5101, 401 M St., SW., Washington, DC 
20460, Toll free: 1-800-535-0202, in Virginia and Alaska: 703-412-9877 
or Toll free TDD: 1-800-553-7672.

SUPPLEMENTARY INFORMATION: In the Federal Register of October 27, 1995 
(60 FR 54949), EPA published an administrative stay of the reporting 
requirements under section 313 of EPCRA and section 6607 of the 
Pollution Prevention Act of 1990 (PPA) for DBNPA. EPA issued the 
administrative stay because EPA had incorrectly categorized the effects 
observed in certain data relating to DBNPA prior to promulgation of the 
final rule adding DBNPA to the EPCRA section 313 list of toxic 
chemicals.
    The document also requested comment on EPA's review of a petition 
to delete DBNPA from the EPCRA section 313 list of toxic chemicals. EPA 
preliminarily determined that DBNPA can reasonably be anticipated to 
cause subchronic gastrointestinal effects, and can reasonably be 
anticipated to cause toxicity to freshwater green algae, chronic 
effects on freshwater invertebrates and chronic effects on oysters at 
relatively low concentrations. The period for accepting comments on 
EPA's review of the petition ended November 27, 1995. EPA has received 
a request to extend the comment period and is granting that request by 
reopening the comment period for 45 days. In addition, this notice 
corrects an error in the October 27, 1995 document. The green algal 
toxicity value was incorrectly listed.

I. Reopening of Public Comment Period

    In the Federal Register of October 27, 1995, EPA requested public 
comment on the information presented in the document regarding the 
continued listing of DBNPA on the EPCRA section 313 list of toxic 
chemicals. In that notice, EPA stated that all comments must be 
received on or before November 27, 1995. In response to a request from 
Dow Chemical Company to extend the comment period, EPA is reopening the 
comment period for an additional 45 days. All comments must be received 
on or before January 26, 1996.

II. Green Algal Toxicity Value Correction

    In the October 27, 1995 Federal Register, on page 54951, first 
column, second full paragraph, 24th line, the green algal 96-hour 
EC50 (median effective concentration) for DBNPA was incorrectly 
listed as ``0.010 mg/L ''; the value should have read 0.08 mg/L.

III. Public Docket

    A record has been established for the administrative stay under 
docket number ``OPPTS-400097'' (including comments and data submitted 
electronically as described below). A public version of this record, 
including printed, paper versions of electronic comments, which does 
not include any information claimed as confidential business 
information (CBI), is available for inspection from noon to 4 p.m., 
Monday through Friday, excluding legal holidays. The public record is 
located in the TSCA Nonconfidential Information Center, Rm. NE-B607, 
401 M St., SW., Washington, DC 20460.
    Electronic comments can be sent directly to EPA at:
    [email protected]

    Electronic comments must be submitted as an ASCII file avoiding the 
use of special characters and any form of encryption.
    The official record for the administrative stay, as well as the 
public version, as described above will be kept in paper form. 
Accordingly, EPA will transfer all comments received electronically 
into printed, paper form as they are received and will place the paper 
copies in the official record which will also include all comments 
submitted directly in writing. The official record is the paper record 
maintained at the address in ``ADDRESSES'' at the beginning of this 
document.

List of Subjects in 40 CFR Part 372

    Environmental protection, Chemicals, Community right-to-know, 
Reporting 

[[Page 64408]]
and recordkeeping requirements, and Toxic chemicals.

    Dated: December 8, 1995.
William H. Sanders III,
Director, Office of Pollution Prevention and Toxics.
[FR Doc. 95-30601 Filed 12-14-95; 8:45 am]
BILLING CODE 6560-50-F

Complete official Federal Register PDF

FR Doc. 95-30554 Clean Air Act (CAA) Proposed Interim Approval of Operating Permits Program and Delegation of 112(l) Authority; State of Missouri
[Federal Register Volume 60, Number 241 (Friday, December 15, 1995)]
[Proposed Rules]
[Pages 64403-64407]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30554]

=======================================================================
-----------------------------------------------------------------------

[[Page 64404]]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[AD-FRL-5346-6]

Clean Air Act (CAA) Proposed Interim Approval of Operating 
Permits Program and Delegation of 112(l) Authority; State of Missouri

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed interim approval.

-----------------------------------------------------------------------

SUMMARY: The EPA proposes interim approval of the operating permits 
program submitted by the state of Missouri for the purpose of complying 
with Federal requirements for states which develop, and submit to EPA, 
programs for issuing operating permits to all major stationary sources 
and to certain other sources. This notice explains EPAs rationale for 
the proposed action, and identifies revisions to the program which must 
be made before EPA can take final action to fully approve it.

DATES: Comments on this proposed action must be received in writing by 
January 16, 1996.
ADDRESSES: Comments should be addressed to Joshua A. Tapp, U.S. 
Environmental Protection Agency, Region VII, Air Branch, 726 Minnesota 
Avenue, Kansas City, Kansas 66101.
    Copies of the Missouri submittal and other supporting information 
used in developing the proposed interim approval are available for 
inspection during normal business hours at the U.S. Environmental 
Protection Agency, Region VII, Air Branch, 726 Minnesota Avenue, Kansas 
City, Kansas 66101.

FOR FURTHER INFORMATION CONTACT: Joshua Tapp at (913) 551-7606.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

    As required under Title V of the Clean Air Act (the Act) as amended 
(1990), EPA has promulgated rules which define the minimum elements of 
an approvable state operating permits program, and the corresponding 
standards and procedures by which EPA will approve, oversee, and 
withdraw approval of state operating permits programs (see 57 FR 32250 
(July 21, 1992). These rules are codified at 40 Code of Federal 
Regulations (CFR) part 70. Title V requires states to develop, and 
submit to EPA, programs for issuing these operating permits to all 
major stationary sources and to certain other sources.
    The Act requires that states develop and submit these programs to 
EPA by November 15, 1993, and that EPA act to approve or disapprove 
each program within one year after receiving the submittal. The EPA's 
program review occurs pursuant to section 502 of the Act and the part 
70 regulations, which together outline criteria for approval or 
disapproval. Where a program substantially, but not fully, meets the 
requirements of part 70, EPA may grant the program interim approval for 
a period of up to two years. If EPA has not fully approved a program by 
two years after the November 15, 1993, date, or by the end of an 
interim period, it must establish and implement a Federal program.

B. Federal Oversight and Sanctions

    If EPA were to finalize this proposed interim approval, it would 
extend for 18 months following the effective date of final interim 
approval and could not be renewed. During the interim approval period, 
the state of Missouri would be protected from sanctions for failure to 
have an approved program, and EPA would not be obligated to promulgate, 
administer, and enforce a Federal permits program for Missouri. Permits 
issued under a program with interim approval have full standing with 
respect to part 70, and the one-year time period for submittal of 
permit applications by subject sources begins upon the effective date 
of interim approval, as does the three-year time period for processing 
the initial permit applications.
    Following the final interim approval, if Missouri has failed to 
submit a complete corrective program for full approval by the date six 
months before expiration of the interim approval, an 18-month clock for 
mandatory sanctions would commence. If Missouri then failed to submit a 
corrective program that EPA found complete before the expiration of 
that 18-month period, EPA would apply sanctions as required by section 
502(d)(2) of the Act, which would remain in effect until EPA determined 
that the state of Missouri had corrected the deficiency by submitting a 
complete corrective program.
    If, following final interim approval, EPA were to disapprove 
Missouri's complete corrective program, EPA would be required under 
section 502(d)(2) to apply sanctions on the date 18 months after the 
effective date of the disapproval, unless prior to that date Missouri 
had submitted a revised program and EPA had determined that it 
corrected the deficiencies that prompted the disapproval.
    If EPA has not granted full approval to Missouri's program by the 
expiration of an interim approval, EPA must promulgate, administer, and 
enforce a Federal permits program for Missouri upon interim approval 
expiration.

II. Proposed Action and Implications

A. Analysis of Submission by State Authority

    The analysis contained in this notice focuses on specific elements 
of the Missouri Department of Natural Resources (MDNR) Title V 
operating permits program that must be corrected to meet the minimum 
requirements of part 70. The full program submittal; the Technical 
Support Document (TSD), which contains a detailed analysis of the 
submittal; and other relevant materials are available for inspection as 
part of the public docket. The docket may be viewed during regular 
business hours at the address listed above.

1. Support Materials

    The Governor of Missouri submitted an administratively and 
technically complete Title V Operating Permit Program on January 13, 
1995. The EPA deemed the program submittal complete on March 2, 1995. 
At EPA's request, the State provided supplemental program information 
on August 14, 1995; September 19, 1995; and October 16, 1995.
    The program submittal includes a legal opinion from the Attorney 
General of Missouri stating that the laws of the State provide adequate 
legal authority to carry out all aspects of the program, and a 
description of how the state intends to implement the program. The 
submittal additionally contains evidence of proper adoption of the 
program regulations, permit application forms, a data management 
system, and a permit fee demonstration.
2. Program Description
    The Governor's letter states that the entire geography of Missouri 
will be covered by this program. There are no Indian tribal lands in 
Missouri. The letter also states that MDNR will be the official 
permitting authority responsible for implementation of the program. 
Finally, the state requested approval and delegation of authority to 
implement section 112(l) of the Act.
    In addition to the state's part 70 permit rules, the state has 
established a State Implementation Plan (SIP) based permit system for 
creating Federally enforceable limitations, called the intermediate 
program. This permit mechanism will allow qualifying sources to avoid 
having to obtain a part 

[[Page 64405]]
70 operating permit. The EPA published a direct final approval of this 
program in the Federal Register on September 25, 1995 (60 FR 49340). 
Finally, Missouri will issue a third class of permit to all other air 
emission sources that meet or exceed the de minimis levels, yet fall 
below the major source threshold. This third class of source will 
require a basic permit. The basic operating permit program is not a 
Federal program and has not been submitted to EPA for approval.
    The state has been collecting emission fees for two years, which 
have been used for ``ramp-up'' activities, including the hiring of 
additional staff. The state emissions fee is currently set at $25.70 
per ton, which may be adjusted by the Missouri Air Conservation 
Commission through an administrative revision of rule 10 CSR 10-6.110. 
The state provided a resource demonstration, discussed later, to 
justify deviating from the presumptive minimum of $25 per ton, Consumer 
Price Index (CPI) adjusted. The state is also authorized under its 
statute to collect fees for non-Title V program activities.
    The program submittal also contains information on the 
organizational structure and function of the components of the air 
program, including the regional and local offices which are available 
to assist in implementation of the program.
3. Regulations and Program Implementation
    The Missouri program, including the core operating permit 
regulations, 10-CSR 6.065 (Division 10, Chapter 6, MDNR) substantially 
meets the minimum requirements for interim approval as they are denoted 
in 40 CFR part 70.4(d)(3). These requirements pertain to: (1) Adequate 
fees, (2) applicable requirements, (3) fixed terms, (4) public 
participation, (5) EPA and affected state review, (6) permit issuance, 
(7) enforcement, (8) operational flexibility, (9) streamlined 
procedures, (10) permit application, and (11) alternative scenarios.
    However, Missouri must make the following program revisions for 
full approval: (1) Revise its definitions rule, 10 CSR 10-6.020 to: (a) 
revise (2)(I)7 to update a reference to the Standard Industrial 
Classification Manual, and (b) revise (3)(B), Table 2--List of Named 
Installations, to make it consistent with the list in the definition of 
major source in 70.2; (2) revise rule 10 CSR 10-6.065, Operating 
Permits by: (a) revising (1)(D)2 to clarify the meaning of ``fugitive 
air pollutant'' as it relates to part 70 installations; (b) revise 
(3)(D) to clarify part 70 applicability with respect to emissions from 
exempt installations and emission units; (c) revise (6)(C)1.C.(II)(b) 
to clarify the retention of record requirements in permits, consistent 
with 70.6(a)(3); (d) revise (6)(C)1.G.(I) to clarify the general 
requirements for permit compliance and noncompliance, consistent with 
70.6(a)(6); (e) revise (6)(C)4.A. to correct a citation error and to 
clarify that the requirement for EPA and affected state review applies 
to general permits, consistent with 70.6(d)(1); (f) revise 
(6)(C)7.B.(IV) to make the emergency provision notice consistent with 
70.6(g)(3); (g) revise (6)(C)8, operational flexibility provisions, to 
clarify the term ``emissions allowable under the permit''; (h) revise 
(6)(E)5.B.(I), minor permit modification criteria, to be consistent 
with 70.7(e)(2)(I)(A)(3); (i) revise (6)(E)5.B.(I) to add a paragraph 
(b) to incorporate the economic incentive provisions consistent with 
70.7(e)(2)(I)(B); (j) revise (6)(E)5.C.(I)(b) to correct the threshold 
for group processing of minor permit modifications to be consistent 
with 70.7(e)(2)(I)(B); and (k) revise (6)(E)5.D.(II)(a), significant 
permit modification procedures, to be consistent with 70.4(b)(2) and 
70.5(c), and make minor citation corrections to rules (6)(B)3.I.(IV), 
(6)(E)5.B.(II)(a), (6)(E)5.C.(V), and (6)(E)6.C. A detailed discussion 
of the necessary rule revisions is included in the TSD, and in the 
docket for this rulemaking. In addition, the rule changes proposed by 
Missouri to meet the requirements noted above are included in the 
docket.
    Missouri has the authority to issue a variance from state 
requirements under section 643.110 of the state statutes. This 
provision was not included by the state in its operating permit program 
submittal, and EPA regards this provision as wholly external to the 
program submitted for approval under part 70, and consequently is 
proposing to take no action on this provision of state law. The EPA has 
no authority to approve provisions of state law, such as the variance 
provision referred to, which are inconsistent with the Act. The EPA 
does not recognize the ability of a permitting authority to grant 
relief from the duty to obtain or comply with a Federally enforceable 
part 70 permit, except where such relief is granted through the 
procedures allowed by part 70. A part 70 permit may be issued or 
revised (consistent with part 70 permitting procedures) to incorporate 
those terms of a variance that are consistent with applicable 
requirements. A part 70 permit may also incorporate, via part 70 permit 
issuance or modification procedures, the schedule of compliance set 
forth in a variance. However, EPA reserves the right to pursue 
enforcement of applicable requirements, notwithstanding the existence 
of a compliance schedule in a permit to operate. This is consistent 
with 70.5(c)(8)(iii)(C), which states that a schedule of compliance 
``shall be supplemental to, and shall not sanction noncompliance with, 
the applicable requirements on which it is based.''
4. Fee Demonstration
    The state provided a detailed fee demonstration because the 
emissions fee, $25.70 per ton (not adjusted), is below the presumptive 
minimum of $25 plus CPI. The fee demonstration included a detailed 
analysis of projected hourly program requirements and costs for each of 
the next four years. An emission inventory of Title V sources for two 
preceding years (1993 and 1994) and emissions fees collected was also 
provided. Missouri describes a cash receipts system that identifies 
Title V fee receipts, a time accounting system that tracks Title V 
program labor costs, and an accounts payable system that tracks Title V 
program expenses.
5. Provisions Implementing the Requirements of Other Titles of the Act
    a. Authority and/or commitments for section 112 implementation. 
Missouri has demonstrated in its program submittal adequate legal 
authority to implement and enforce all section 112 requirements through 
the Title V permit. This legal authority is contained in Missouri's 
enabling legislation and in regulatory provisions defining ``applicable 
requirements,'' and states that the permit must incorporate all 
applicable requirements. EPA has determined that this legal authority 
is sufficient to allow Missouri to issue permits that ensure compliance 
with all section 112 requirements. The EPA is interpreting the above 
legal authority to mean that Missouri is able to carry out all section 
112 activities. For further rationale on this interpretation, please 
refer to the TSD accompanying this rulemaking and the April 13, 1993, 
guidance memorandum titled ``Title V Program Approval Criteria for 
Section 112 Activities,'' signed by John Seitz.
    b. Section 112(g) Case-by-Case Maximum Achievable Control 
Technology (MACT) For Modified/Constructed and Reconstructed Major 
Toxic Sources.
    The EPA issued an interpretive notice on February 14, 1995 (60 FR 
8333), which outlines EPA's revised interpretation of 112(g) 
applicability. 

[[Page 64406]]
The notice postpones the effective date of 112(g) until after EPA has 
promulgated a rule addressing that provision. The notice sets forth in 
detail the rationale for the revised interpretation.
    The section 112(g) interpretive notice explains that EPA is still 
considering whether the effective date of section 112(g) should be 
delayed beyond the date of promulgation of the Federal rule so as to 
allow states time to adopt rules implementing the Federal rule, and 
that EPA will provide for any such additional delay in the final 
section 112(g) rulemaking. Unless and until EPA provides for such an 
additional postponement of section 112(g), Missouri must have a 
Federally enforceable mechanism for implementing section 112(g) during 
the period between promulgation of the Federal section 112(g) rule and 
adoption of implementing Federal regulations.
    The EPA is aware that Missouri lacks a program designed 
specifically to implement section 112(g). However, Missouri does have a 
program for review of new and modified hazardous air pollutant sources 
that can serve as an adequate implementation vehicle during the 
transition period, because it would allow Missouri to select control 
measures that would meet MACT, as defined in section 112, and 
incorporate these measures into a Federally enforceable preconstruction 
permit.
    The EPA is proposing to approve Missouri's preconstruction 
permitting program under the authority of Title V and part 70, solely 
for the purpose of implementing section 112(g) to the extent necessary 
during the transition period between 112(g) promulgation and adoption 
of a state rule implementing EPA's section 112(g) regulations. Although 
section 112(l) generally provides authority for approval of state air 
programs to implement section 112(g), Title V and section 112(g) 
provide for this limited approval because of the direct linkage between 
the implementation of section 112(g) and Title V. The scope of this 
approval is narrowly limited to section 112(g) and does not confer or 
imply approval for purposes of any other provision under the Act (e.g., 
section 110). This approval will be without effect if EPA decides in 
the final section 112(g) rule that sources are not subject to the 
requirements of the rule until state regulations are adopted. The 
duration of this approval is limited to 18 months following 
promulgation by EPA of the 112(g) rule to provide adequate time for the 
state to adopt regulations consistent with the Federal requirements.
    c. Section 112(l)--State Air Toxics Programs.
    Requirements for approval, specified in 40 CFR 70.4(b), encompass 
section 112(l)(5) approval requirements for delegation of section 112 
standards as promulgated by EPA as they apply to part 70 sources. 
Section 112(l)(5) requires that the state's program contain adequate 
authorities, adequate resources for implementation, and an expeditious 
compliance schedule, which are also requirements under part 70. 
Missouri has demonstrated that it meets these requirements. Therefore, 
EPA is proposing to grant approval under section 112(l)(5) and 40 CFR 
part 63.91 to Missouri for its program mechanism for receiving 
delegation of all existing and future section 112(d) standards for both 
part 70 and non-part 70 sources, and section 112 infrastructure 
programs, that are unchanged from Federal rules as promulgated. 
Missouri has informed EPA that it intends to accept delegation of 
section 112 standards through adoption by reference. In addition, EPA 
is also proposing delegation of all existing standards and programs 
under 40 CFR parts 61 and 63 for part 70 and non-part 70 sources.
    d. Title IV/Acid Rain. The legal requirements for approval under 
the Title V operating permits program for a Title IV program were cited 
in EPA guidance distributed on May 21, 1993, titled ``Title V-Title IV 
Interface Guidance for States.'' Missouri has met the criteria of this 
guidance and has adopted by reference acid rain rules at 40 CFR 72.

B. Options for Approval/Disapproval and Implications

    1. The EPA is proposing to grant interim approval for two years to 
the operating permits program submitted by the state of Missouri. In 
order to receive full approval, the state must adopt and submit to the 
EPA the rule changes identified above within 18 months of receiving 
final interim approval. Specifically, the state must amend rules 10 CSR 
10-6.020, Definitions, and 10 CSR 10-6.065, Operating permits, for 
consistency with part 70.
    2. Program for Straight Delegation of Section 112 Standards.
    As discussed above, EPA is proposing to grant approval under 
section 112(l)(5) and 40 CFR part 63.91 to Missouri for its program 
mechanism for receiving delegation of all existing and future section 
112(d) standards for both part 70 and non-part 70 sources, and 
infrastructure programs under section 112 that are unchanged from 
Federal rules as promulgated. In addition, EPA proposes to delegate 
existing standards under 40 CFR parts 61 and 63 for both part 70 and 
non-part 70 sources.

III. Administrative Requirements

A. Request for Public Comments

    The EPA is requesting comments on all aspects of this proposed 
interim approval. Copies of the state's submittal and other information 
relied upon for the proposed approval are contained in a docket 
maintained at EPA Regional Office. The docket is an organized and 
complete file of all the information submitted to, or otherwise 
considered by, EPA in the development of this proposed interim 
approval. The principal purposes of the docket are:
    1. To allow interested parties a means to identify and locate 
documents for participating in the rulemaking process, and
    2. To serve as the record in case of judicial review. The EPA will 
consider any comments received by Janaury 16, 1996.

B. Executive Order 12866

    The Office of Management and Budget has exempted this regulatory 
action from Executive Order 12866 review.

C. Regulatory Flexibility Act

    The EPA's actions under section 502 of the Act do not create any 
new requirements, but simply address operating permits programs 
submitted to satisfy the requirements of 40 CFR part 70. Because this 
action does not impose any new requirements, it does not have a 
significant impact on a substantial number of small entities.

D. Unfunded Mandates

    Under sections 202, 203, and 205 of the Unfunded Mandates Reform 
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 
1995, EPA must undertake various actions in association with proposed 
or final rules that include a Federal mandate that may result in 
estimated costs of $100 million or more to the private sector, or to 
state, local, or tribal governments in the aggregate.
    Through submission of this state operating permit program the state 
has elected to adopt the program provided for under Title V of the CAA. 
These rules may bind the state government to perform certain actions 
and also require the private sector to perform certain duties. To the 
extent that the rules being proposed for approval by this action will 
impose new requirements, sources are already subject to these 
regulations under state law. Accordingly, no additional costs to state, 
local, or tribal governments, or to the private sector, result from 
this action. The EPA has 

[[Page 64407]]
also determined that this proposed action does not include a mandate 
that may result in estimated costs of $100 million or more to state, 
local, or tribal governments in the aggregate or to the private sector.

List of Subjects in 40 CFR Part 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Operating permits, 
and Reporting and recordkeeping requirements.

    Authority: 42 U.S.C. sections 7401-7671q.

    Dated: December 6, 1995.
Dennis Grams,
Regional Administrator.
[FR Doc. 95-30554 Filed 12-14-95; 8:45 am]
BILLING CODE 6560-50-P

Complete official Federal Register PDF

FR Doc. 95-30505 Disclosure of Returns and Return Information to Procure Property or Services for Tax Administration Purposes
[Federal Register Volume 60, Number 241 (Friday, December 15, 1995)]
[Proposed Rules]
[Pages 64402-64403]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30505]

-----------------------------------------------------------------------

DEPARTMENT OF THE TREASURY
26 CFR Part 301

[DL-01-95]
RIN 1545-AT48

Disclosure of Returns and Return Information to Procure Property 
or Services for Tax Administration Purposes

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: These proposed regulations relate to the disclosure of returns 
and return information in connection with the procurement of property 
and services for tax administration purposes. The amendments would 
authorize the Department of Justice, including offices of United States 
Attorneys, to make such disclosures. Current disclosure authority 
within the Department of Justice rests only with the Tax Division. The 
amendments also reflect a change to the law made by the Omnibus Budget 
Reconciliation Act of 1990 regarding the type of services about which 
disclosures may be made.

DATES: Comments and requests for a public hearing must be received by 
March 14, 1996.

ADDRESSES: Send submissions to: CC:DOM:CORP:R (DL-01-95), room 5228, 
Internal Revenue Service, POB 7604, Ben Franklin Station, Washington, 
DC 20044. In the alternative, submissions may be hand delivered between 
the hours of 8 a.m. and 5 p.m. to: CC:DOM:CORP:R (DL-01-95), Courier's 
Desk, Internal Revenue Service, 1111 Constitution Avenue NW., 
Washington, DC.

FOR FURTHER INFORMATION CONTACT: Donald Squires, 202-622- 4570 (not a 
toll-free number).

SUPPLEMENTARY INFORMATION:

Background

    Section 6103(n) of the Internal Revenue Code (Code) authorizes the 
disclosure of returns and return information, pursuant to regulations 
prescribed by the Secretary of the Treasury, ``to the extent necessary 
in connection with the processing, storage, transmission, and 
reproduction of such returns and return information, the programming, 
maintenance, repair, 

[[Page 64403]]
testing, and procurement of equipment, and the providing of other 
services, for purposes of tax administration.''
    Existing regulations promulgated under this section prescribe the 
persons who may make such disclosures, the situations under which such 
disclosures may be made and the notification and safeguarding 
procedures to be followed when such disclosures are made. Among the 
persons who may make such disclosures are officers and employees of the 
Tax Division of the Department of Justice. The amendments would 
authorize such disclosures by the Department of Justice (not solely the 
Tax Division) to third parties who provide services for tax 
administration purposes under the conditions and restrictions of the 
regulations. The amendments would provide that, for the purpose of this 
section, the ``Department of Justice'' includes offices of United 
States Attorneys.
    The amendments would also conform the regulation to the language of 
section 6103(n), which was amended by the Omnibus Budget Reconciliation 
Act of 1990 to clarify that the disclosures authorized by this section 
included those in connection with ``the providing of other services'' 
(i.e., services other than those related to the mechanical processing 
of returns and return information).

Explanation of Provisions

    As currently written, 26 CFR 301.6103(n)-1 authorizes the Tax 
Division of the Department of Justice, among other entities and 
individuals, to make disclosures of returns and return information 
pursuant to section 6103(n) of the Internal Revenue Code. This 
authority allows the Tax Division to disclose tax information incident 
to its contracts to private parties for, among other purposes, 
automated litigation support services.
    The Department of Justice has indicated its intention to establish 
an expanded automated tracking system for all monetary judgments in 
favor of the United States, which will be operated by a private company 
under contract with the Department. Although the majority of tax cases 
are handled by the Tax Division, there are several United States 
Attorneys' offices that also have litigation responsibility in the 
civil tax area. In addition, the Tax Division refers some judgments in 
tax cases to the United States Attorneys for collection. Existing 
regulations arguably would not permit these offices, which are 
technically not part of the Tax Division, to disclose tax information 
incident to their inclusion of tax judgments in the automated tracking 
system.
    The proposed amendment would authorize the Department of Justice, 
including offices of United States Attorneys, to make disclosures to 
procure property and services for tax administration purposes. Any such 
disclosures will be made under the same conditions and restrictions 
already set forth in the existing regulations. By definition, any 
office within the Department of Justice without tax administration 
duties will not have occasion or authority pursuant to these 
regulations to make such disclosures.
    The proposed amendment would also authorize disclosures in 
connection with ``the providing of other services,'' i.e., services not 
related to the strict mechanical processing or manipulation of tax 
returns or return information. This would conform the regulations to 
the language of the statute, as amended by the Omnibus Budget 
Reconciliation Act of 1990 (Pub. L. 101-508, 104 Stat. 1388-353).

Special Analyses

    It has been determined that this notice of proposed rulemaking is 
not a significant regulatory action as defined in EO 12866. Therefore, 
a regulatory assessment is not required. It has also been determined 
that section 553(b) of the Administrative Procedure Act (5 U.S.C. 
chapter 5) and the Regulatory Flexibility Act (5 U.S.C. chapter 6) do 
not apply to these regulations, and, therefore, a Regulatory 
Flexibility Analysis is not required. Pursuant to section 7805(f) of 
the Internal Revenue Code, this notice of proposed rulemaking will be 
submitted to the Chief Counsel for Advocacy of the Small Business 
Administration for comment on its impact on small business.

Comments and Requests for a Public Hearing

    Before these proposed regulations are adopted as final regulations, 
consideration will be given to any written comments that are submitted 
timely (preferably a signed original and eight copies) to the IRS. All 
comments will be available for public inspection and copying. A public 
hearing may be scheduled if requested in writing by any person that 
timely submits written comments. If a public hearing is scheduled, 
notice of the date, time, and place for the hearing will be published 
in the Federal Register.

Drafting Information

    The principal author of these proposed regulations is Donald 
Squires, Office of the Assistant Chief Counsel (Disclosure Litigation), 
IRS. However, other personnel from the IRS, Department of Justice and 
Treasury Department participated in their development.

List of Subjects in 26 CFR Part 301

    Employment taxes, Estate taxes, Excise taxes, Gift taxes, Income 
taxes, Penalties, Reporting and recordkeeping requirements.

Proposed Amendments to the Regulations

    Accordingly, 26 CFR part 301 is proposed to be amended as follows:

PART 301--PROCEDURE AND ADMINISTRATION

    Paragraph 1. The authority citation for part 301 continues to read 
in part as follows:

    Authority: 26 U.S.C. 7805 * * *

    Para. 2. Section 301.6103(n)-1 is amended as follows:
    1. The first sentence of paragraph (a) introductory text is amended 
by removing the language ``Tax Division,''.
    2. Paragraph (a)(2) is amended by removing the language ``or to''.
    3. Paragraph (a)(2) is further amended by adding the language ``or 
the providing of other services,'' immediately following the text 
``other property,''.
    4. The concluding text following paragraph (a)(2) is amended by 
removing the language ``Tax Division,''.
    5. The second sentence of paragraph (d) introductory text is 
amended by removing the language ``Tax Division,''.
    6. Paragraph (d)(2) is amended by removing the language ``Tax 
Division,''.
    7. Paragraph (e)(1) is amended by removing the language ``, and'' 
at the end of the paragraph and adding a semicolon in its place.
    8. Paragraph (e)(2) is amended by removing the period at the end of 
the paragraph and adding ``; and'' in its place.
    9. Paragraph (e)(3) is added.
    10. The authority citation immediately following Sec. 301.6103(n) 
is removed.
    The addition reads as follows:

Sec. 301.6103(n)-1  Disclosure of returns and return information in 
connection with procurement of property and services for tax 
administration purposes.

* * * * *
    (e) * * *
    (3) The term Department of Justice includes offices of the United 
States Attorneys.
Margaret Milner Richardson,
Commissioner of Internal Revenue.
[FR Doc. 95-30505 Filed 12-14-95; 8:45 am]
BILLING CODE 4830-01-U

Complete official Federal Register PDF

FR Doc. 95-30453 Federal-State Joint Board; Extension of Indexed Cap on Total Level of Universal Service Fund
[Federal Register Volume 60, Number 241 (Friday, December 15, 1995)]
[Proposed Rules]
[Page 65010]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30453]

[[Page 65009]]

_______________________________________________________________________

Part IV

Federal Communications Commission

_______________________________________________________________________

47 CFR Part 36

Federal-State Joint Board Extension of Indexed Cap on Total Level of 
Universal Service Fund; Proposed Rule

Establishment of a Joint Board; Final Rule

Federal Register / Vol. 60, No. 241 / Friday, December 15, 1995 / 
Proposed Rules

[[Page 65010]]

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 36

[CC Docket No. 80-286, FCC 95J-1]

Federal-State Joint Board; Extension of Indexed Cap on Total 
Level of Universal Service Fund

AGENCY: Federal Communications Commission.

ACTION: Recommended decision of Federal-State Joint Board.

-----------------------------------------------------------------------

SUMMARY: The Federal-State Joint Board recommends the extension of the 
duration of the interim indexed cap on the total level of the Universal 
Service Fund (USF) for an additional six months. The cap was intended 
as an interim measure moderating the growth of the USF during the 
pendency of a broader rulemaking revising the Part 36 jurisdictional 
separations rules governing the USF. The Federal-State Joint Board 
recommends the extension of the interim cap, which expires January 1, 
1996, for an additional six months while that rulemaking is completed.

FOR FURTHER INFORMATION CONTACT: Clara Kuehn, 202-418-0844, Deborah A. 
Dupont, 202-418-0873, Accounting and Audits Division, Common Carrier 
Bureau.

SUPPLEMENTARY INFORMATION: This is a summary of the Federal-State Joint 
Board's Recommended Decision CC Docket No. 80-286, FCC 95J-1, adopted 
December 7, 1995, and released December 8, 1995.
    The full text of Recommended Decisions of the Joint Board are 
available for inspection and copying during normal business hours in 
the FCC Dockets Branch (room 230), 1919 M Street, NW, Washington DC. 
The full text of this Recommended Decision may also be purchased from 
the Commission's copy contractors, International Transcription Service, 
(202) 857-3800, 2100 M Street, NW, Suite 140, Washington DC 20037.

Summary of Recommended Decision

    In 1993, the Commission imposed a two-year indexed cap (cap) on the 
total level of the Universal Service Fund (USF) for the purpose of 
moderating growth in the USF during the pendency of a planned 
rulemaking that would address permanent changes in the Commission's 
rules governing the USF. 58 FR 69239, Dec. 30, 1993. On October 3, 
1995, the Commission issued a Notice of Proposed Rulemaking, proposing 
a six-month extension of the cap in order to continue to moderate 
growth in the USF while the Commission completed its USF rulemaking. 60 
FR 52359, Oct. 6, 1995. The Commission explained that the duration of 
the cap had been limited to two years in the belief that the USF 
rulemaking would be completed within that period and that an additional 
six months would be sufficient to complete the USF rulemaking in view 
of the progress made to date. Id. at 52361. The Commission referred the 
issues raised in its Notice of Proposed Rulemaking to the Federal-State 
Joint Board for a Recommended Decision and invited interested parties 
to propose extensions of the cap for longer or shorter periods than six 
months. Id. at 52360-61.
    Following review of comments and reply comments filed by interested 
parties, the Joint Board recommends that the cap be extended for an 
additional six months in order to continue to moderate growth in the 
USF while the USF rulemaking is completed. The Joint Board reiterates 
its conclusion, stated during earlier deliberations in the same 
proceeding, that the cap would minimize dislocation should the 
Commission's ongoing USF rulemaking result in revisions to the USF 
rules. In response to contentions of the parties that the proposed 
extension is unnecessary, because recent NECA submissions showed total 
USF payments in 1996 below the level of the USF as limited by an 
extension of the cap, the Joint Board explains that no one would be 
harmed if total claims for USF assistance remain below an extended cap, 
but that an extended cap would protect against unanticipated and 
unwanted growth in the fund during the pendency of the USF rulemaking 
should total claims substantially exceed NECA's current calculations. 
The Joint Board reiterates its concerns, stated earlier in the 
proceeding, regarding the pattern of growth and the overall rate of 
growth in the USF, explaining that moderating the level of the USF 
during the pendency of the USF rulemaking would serve the public 
interest.
    The Joint Board concludes that six months should be sufficient to 
complete the USF rulemaking and recommends an extension of the cap for 
six additional months. The Joint Board rejects arguments to broaden the 
scope of the USF rulemaking as beyond the scope of the Notice of 
Proposed Rulemaking.

Ordering Clause

    28. For all of the reasons discussed in this Recommended Decision, 
this Federal-State Joint Board recommends, pursuant to Section 410(c) 
of the Communications Act of 1934, as amended, 47 U.S.C. 410(c), that 
the Federal Communications Commission extend, until July 1, 1996, the 
current interim rules prescribing an indexed cap on the total level of 
the Universal Service Fund, 47 CFR 36.601, 36.622.

List of Subjects in 47 CFR Part 36

    Communications common carriers, Reporting and recordkeeping 
requirements, Telephone, Uniform System of Accounts.

Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 95-30453 Filed 12-14-95; 8:45 am]
BILLING CODE 6712-01-P

Complete official Federal Register PDF

FR Doc. 95-30415 Notice of Significant Reduction in the Rate of Future Benefit Accrual
[Federal Register Volume 60, Number 241 (Friday, December 15, 1995)]
[Proposed Rules]
[Pages 64401-64402]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30415]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 1

[EE-34-95]
RIN 1545-AT78

Notice of Significant Reduction in the Rate of Future Benefit 
Accrual

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Notice of proposed rulemaking by cross-reference to temporary 
regulations.

-----------------------------------------------------------------------

SUMMARY: In the Rules and Regulations section of this issue of the 
Federal Register, the IRS is issuing temporary regulations relating to 
the requirements of section 204(h) of the Employee Retirement Income 
Security Act of 1974, as amended (ERISA). Section 204(h) of ERISA 
applies to defined benefit plans and to individual account plans that 
are subject to the funding standards of section 302 of ERISA. It 
requires the plan administrator to give notice of certain plan 
amendments to participants in the plan and certain other parties. The 
text of those temporary regulations also serves as the text of these 
proposed regulations.

DATES: Written comments must be received by March 14, 1996.

ADDRESSES: Send submissions to CC:DOM:CORP:R (EE-34-95), room 5228, 
Internal Revenue Service, POB 7604, Ben Franklin Station, Washington, 
DC 20044. In the alternative, submissions may be hand delivered between 
the hours of 8 a.m. and 5 p.m. to CC:DOM:CORP:R (EE-34-95), Courier's 
Desk, Internal Revenue Service, 1111 Constitution Avenue NW., 
Washington DC.

FOR FURTHER INFORMATION CONTACT: Betty J. Clary, (202) 622-6070 (not a 
toll-free number).

SUPPLEMENTARY INFORMATION:

Paperwork Reduction Act

    The collection of information contained in this notice of proposed 

[[Page 64402]]
    rulemaking has been submitted to the Office of Management and Budget 
for review in accordance with the Paperwork Reduction Act of 1995 (44 
U.S.C. 3507).
    Comments on the collection of information should be sent to the 
Office of Management and Budget, Attn: Desk Officer for the Department 
of Treasury, Office of Information and Regulatory Affairs, Washington, 
DC 20503, with copies to the Internal Revenue Service, Attn: IRS 
Reports Clearance Officer, T:FP, Washington, DC 20224. Comments on the 
collection of information should be received by February 13, 1996.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless the collection of 
information displays a valid control number.
    The collection of information is in Sec. 1.411(d)-6T which 
implements the statutory requirement of section 204(h) of ERISA that a 
plan administrator provide notice to participants and certain other 
parties if certain pension plans are amended to provide for a 
significant reduction in the rate of future benefit accrual. This 
collection of information is required to assure that the rights of 
participants in plans subject to section 204(h) of ERISA are protected. 
The likely respondents are small businesses. Responses to this 
collection of information are required under section 204(h) of ERISA in 
order for certain amendments to qualified plans to become effective.
    These regulations do not involve any issues of confidentiality.
    Estimated total annual reporting burden: 15,000 hours.
    The estimated annual burden per respondent varies from 1 hour to 40 
hours, depending on individual circumstances, with an estimated average 
of 5 hours.
    Estimated number of respondents: 3,000.
    Estimated annual frequency of responses: Once.

Background

    Temporary regulations in the Rules and Regulations portion of this 
issue of the Federal Register amend the Income Tax Regulations (26 CFR 
part 1) (relating to section 411(d)). The text of those temporary 
regulations also serves as the text of these proposed regulations. The 
preamble to the temporary regulations explains the temporary 
regulations.

Special Analyses

    It has been determined that this notice of proposed rulemaking is 
not a significant regulatory action as defined in EO 12866. Therefore, 
a regulatory assessment is not required. It also has been determined 
that section 553(b) of the Administrative Procedure Act (5 U.S.C. 
chapter 5) and the Regulatory Flexibility Act (5 U.S.C. chapter 6) do 
not apply to these regulations, and, therefore, a Regulatory 
Flexibility Analysis is not required. Pursuant to section 7805(f) of 
the Internal Revenue Code, the notice of proposed rulemaking will be 
submitted to the Chief Counsel for Advocacy of the Small Business 
Administration for comment on their impact on small business.

Comments and Requests for a Public Hearing

    Before these proposed regulations are adopted as final regulations, 
consideration will be given to any written comments (a signed original 
and eight (8) copies) that are submitted timely to the IRS. All 
comments will be available for public inspection and copying. A public 
hearing may be scheduled if requested in writing by a person that 
timely submits written comments. If a public hearing is scheduled, 
notice of the date, time, and place for the hearing will be published 
in the Federal Register.

    Drafting Information: The principal author of these regulations 
is Betty J. Clary, Office of the Associate Chief Counsel (Employee 
Benefits and Exempt Organizations), IRS. However, other personnel 
from the IRS and Treasury Department participated in their 
development.

List of Subjects in 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

Proposed Amendments to the Regulations

    Accordingly, 26 CFR part 1 is proposed to be amended as follows:

PART 1--INCOME TAXES

    Paragraph 1. The authority citation for part 1 continues to read, 
in part, as follows:

    Authority: 26 U.S.C. 7805. * * *

    Section 1.411(d)-6 also issued under Reorganization Plan No. 4 of 
1978, 29 U.S.C. 1001nt. * * *
    Par. 2. Section 1.411(d)-6 is added to read as follows:

Sec. 1.411(d)-6  Section 204(h) notice.

    [The text of this proposed section is the same as the text of 
Sec. 1.411(d)-6T published elsewhere in this issue of the Federal 
Register.]
Margaret Milner Richardson,
Commissioner of Internal Revenue.
[FR Doc. 95-30415 Filed 12-12-95; 1:23 pm]
BILLING CODE 4830-01-U

Complete official Federal Register PDF

FR Doc. 95-30357 Acquisition Regulation; Confidential Business Information
[Federal Register Volume 60, Number 241 (Friday, December 15, 1995)]
[Proposed Rules]
[Pages 64408-64411]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30357]

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY
48 CFR Parts 1535 and 1552

[FRL-5332-3]

Acquisition Regulation; Confidential Business Information

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
revise its acquisition regulation by revising both the prescription for 
use of solicitation provisions and contract clauses regarding 
collection, use, access, treatment, and disclosure of confidential 
business information (CBI), and adding solicitation provisions and 
contract clauses on CBI.

DATES: Written comments should be submitted to the contact listed below 
not later than February 13, 1996.

ADDRESSES: Comments and data may also be submitted electronically by 
sending electronic mail (e-mail) to: Senzel.L[email protected]. 
Electronic comments must be submitted as an ASCII file avoiding the use 
of special characters and any form of encryption. Comments and data 
will also be accepted on disks in WordPerfect in 5.1 format or ASCII 
file format. No Confidential Business Information (CBI) should be 
submitted through e-mail. Electronic comments on this proposed rule may 
be filed online at many Federal Depository Libraries.

FOR FURTHER INFORMATION CONTACT: Louise Senzel, Environmental 
Protection Agency, Office of Acquisition Management (3802F), 401 M 
Street, SW, Washington, D.C. 20460. Telephone: (202) 260-6204.

SUPPLEMENTARY INFORMATION:

A. Executive Order 12866

    The proposed rule is not a significant regulatory action for the 
purposes of Executive Order 12866; therefore, no review is required by 
the Office of Information and Regulatory Affairs.

B. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because this proposed 
rule does not contain information collection requirements that require 
the approval of OMB under the Paperwork Reduction Act of 1980 (44 
U.S.C. 3501 et seq.)

C. Regulatory Flexibility Act

    The EPA certifies that this proposed rule does not exert a 
significant economic impact on a substantial number of small entities. 
The requirements to contractors under the proposed rule impose no 
reporting, record-keeping, or any compliance costs.

D. Unfunded Mandates

    This proposed rule will not impose unfunded mandates on state or 
local entities, or others.
    The provisions of this regulation are issued under 5 U.S.C. 301; 40 
U.S.C. 486(c).

List of Subjects in 48 CFR Parts 1535 and 1552

    Government procurement.

    Therefore, Chapter 15 of title 48, Code of Federal Regulations is 
proposed to be amended as set forth below:
    1. The authority citation for parts 1535 and 1552 continue to read 
as follows:

    Authority: Sec. 205(c), 63 stat. 390, as amended, 40 U.S.C. 
486(c).

    2. Section 1535.007 is revised to read as follows:

1535.007  Solicitations.

    (a) Contracting Officers shall insert the following provisions in 
all solicitations when the Contracting Officer has determined that EPA 
may furnish the contractor with confidential business information which 
EPA has obtained from third parties under the Federal Insecticide, 
Fungicide and Rodenticide Act (7 U.S.C. 136 et seq.).
    (1) 1552.235-72 Control and Security of Federal Insecticide, 
Fungicide, and Rodenticide Act Confidential Business Information; and
    (2) 1552.235-73 Access to Federal Insecticide, Fungicide, and 
Rodenticide Act Confidential Business Information.
    (b) Contracting Officers shall insert the following provisions in 
all solicitations when the Contracting Officer has determined that EPA 
may furnish the contractor with confidential business information which 
EPA has obtained from third parties under the Toxic Substances Control 
Act (15 U.S.C. 2601 et seq.)
    (1) 1552.235-74 Control and Security of Toxic Substances Control 
Act Confidential Business Information; and
    (2) 1552.235-75 Access to Toxic Substances Control Act Confidential 
Business Information.
    3. Subsection 1535.007-70 is amended by revising paragraphs (b) and 
(c) and adding paragraph (d) through (f) to read as follows:

1535.007-70  Contract clauses.

    (a) * * *
    (b) The Contracting Officer shall insert the clause at 1552.235-71, 
Treatment of Confidential Business Information, in solicitations and 
contracts when the Contracting Officer has determined that in the 
performance of the contract, EPA may furnish confidential business 
information to the contractor obtained from third parties under the 
Clean Air Act (42 U.S.C. 7401 et seq.), the Federal Water Pollution 
Control Act (33 U.S.C. 1251 et seq.), the Safe Drinking Water Act (42 
U.S.C. 300f et seq.), the Federal Food, Drug, and Cosmetic Act (21 
U.S.C. 301 et seq.), the Resource Conservation and Recovery Act (42 
U.S.C. 301 et seq.), the Federal Insecticide, Fungicide and Rodenticide 
Act (7 U.S.C. 136 et seq.), the Comprehensive Environmental Response, 
Compensation, and Liability Act (42 U.S.C. 9601 et seq.), and provision 
1552.235-70, Release of Contractor Confidential Business Information. 
EPA regulations on confidentiality of business information in 40 CFR 
part 2, subpart B, require that the contractor agree to the clause 
entitled ``Treatment of Confidential Business Information'' before any 
confidential business information may be furnished to the contractor.
    (c) The Contracting Officer shall insert the clause at 1552.235-76, 
Treatment of Confidential Business Information, in solicitations and 
contracts when the Contracting Officer has determined that in the 
performance of the contract, EPA may furnish the contractor with 
confidential business information obtained from third parties under the 
Toxic Substances Control Act (15 U.S.C. 2601 et seq.). EPA regulations 
on confidentiality of business information in 40 CFR part 2, subpart B, 
require that the contractor agree to the clause entitled ``Treatment of 
Confidential Business Information'' before any confidential business 
information may be furnished to the contractor.
    (d) The Contracting Officer shall insert the clause at 1552.235-77 
Data Security for Federal Insecticide, Fungicide, Rodenticide Act 
Confidential Business Information, when the contract involves access to 
confidential business information related to the Federal Insecticide, 
Fungicide, Rodenticide Act and the Treatment of Confidential Business 
Information clause (1552.235-71) and the Screening Business Information 
for Claims of Confidentiality clause (1552.235-70) are included. 

[[Page 64409]]

    (e) The Contracting Officer shall insert the clause at 1552.235-78 
Data Security for Toxic Substances Control Act Confidential Business 
Information, when the contract involves access to confidential business 
information related to the Toxic Substances Control Act and the 
Treatment of Confidential Business Information clause (1552.235-76) and 
Screening Business Information for Claims of Confidentiality clause 
(1552.235-70) are included.
    (f) Contracting Officers shall insert the clause 1552.235-79 
Release of Contractor Confidential Business Information in all 
solicitations and contracts in order to authorize the Agency to release 
confidential business information under certain circumstances.
    4. Subpart 1552.2, is amended by revising section 1552.235-72, and 
adding sections 1552.235-73 through 1552.235-79 to read as follows:

1552.235-72  Control and Security of Federal Insecticide, Fungicide, 
Rodenticide Act Confidential Business Information (XXX 1995).

    As prescribed in 1535.007(a), insert the following provision:

Control and Security of Federal Insecticide, Fungicide, Rodenticide Act 
Confidential Business Information (XXX 1995)

    The offeror certifies that--

--The Contractor and its employees have read and are familiar with 
the requirements for the control and security of Federal 
Insecticide, Fungicide, Rodenticide Act confidential business 
information contained in the manual entitled ``Federal Insecticide, 
Fungicide, Rodenticide Act Information Security Manual''. (See also 
1552.235-77 elsewhere in this solicitation.)

(End of Provision)

1552.235-73  Access to Federal Insecticide, Fungicide, Rodenticide Act 
Confidential Business Information (XXX 1995).

    As prescribed in 1535.007(a), insert the following provision:

Access to Federal Insecticide, Fungicide, Rodenticide Act Confidential 
Business Information (XXX 1995)

    In order to perform duties under the contract, the Contractor 
will need to be authorized for access to Federal Insecticide, 
Fungicide, Rodenticide Act (FIFRA) confidential business information 
(CBI). The Contractor and all of its employees handling CBI while 
working under the contract will be required to follow the procedures 
contained in the security manual entitled ``FIFRA Information 
Security Manual''. These procedures include applying for FIFRA CBI 
access authorization for each individual working under the contract 
who will have access to FIFRA CBI, execution of confidentiality 
agreements, and designation by the Contractor of an individual to 
serve as a Document Control Officer. The Contractor will be required 
to abide by those clauses contained in EPAAR 1552.235-70, 1552.235-
71, and 1552.235-77 that are appropriate to the activities set forth 
in the contract.
    Until EPA has approved the Contractor's security plan, the 
Contractor may not be authorized for FIFRA CBI access away from EPA 
facilities.

(End of Provision)

1552.235-74  Control and Security of Toxic Substances Control Act 
Confidential Business Information (XXX 1995).

    As prescribed in 1535.007(b), insert the following provision:

Control and Security of Toxic Substances Control Act Confidential 
Business Information (XXX 1995)

    The offeror certifies that--
--The Contractor and its employees have read and are familiar with 
the requirements for the control and security of Toxic Substances 
Control Act confidential business information contained in the 
manual entitled ``Toxic Substances Control Act Confidential Business 
Information Security Manual''. (See also 1552.235-78 elsewhere in 
this solicitation.)

(End of Provision)

1552.235-75  Access to Toxic Substances Control Act Confidential 
Business Information (XXX 1995).

    As prescribed in 1535.007(b), insert the following provision:

Access to Toxic Substances Control Act Confidential Business 
Information (XXX 1995)

    In order to perform duties under the contract, the Contractor 
will need to be authorized for access to Toxic Substances Control 
Act (TSCA) confidential business information (CBI). The Contractor 
and all of its employees handling CBI while working under the 
contract will be required to follow the procedures contained in the 
security manual entitled ``TSCA Confidential Business Information 
Security Manual''. These procedures include applying for TSCA CBI 
access authorization for each individual working under the contract 
who will have access to TSCA CBI, execution of confidentiality 
agreements, and designation by the Contractor of an individual to 
serve as a Document Control Officer. The Contractor will be required 
to abide by those clauses contained in EPAAR 1552.235-70, 1552.235-
71, and 1552.235-78 that are appropriate to the activities set forth 
in the contract.
    Until EPA has inspected and approved the Contractor's 
facilities, the Contractor may not be authorized for TSCA CBI access 
away from EPA facilities.

(End of Provision)

1552.235-76  Treatment of Confidential Business Information (XXX 1995).

    As prescribed in 1535.007-70(c), insert the following clause:

Treatment of Confidential Business Information (XXX 1995)

    (a) The Project Officer (PO) or his/her designee, after a 
written determination by the appropriate program office, may 
disclose confidential business information (CBI) to the Contractor 
necessary to carry out the work required under this contract. The 
Contractor agrees to use the CBI only under the following 
conditions:
    (1) The Contractor and Contractor's employees shall (i) use the 
CBI only for the purposes of carrying out the work required by the 
contract; (ii) not disclose the information to anyone other than 
properly cleared EPA employees without the prior written approval of 
the Assistant General Counsel for Information Law or his/her 
designee; and (iii) return the CBI to the PO or his/her designee, 
whenever the information is no longer required by the Contractor for 
performance of the work required by the contract, or upon completion 
of the contract.
    (2) The Contractor shall obtain a written agreement to honor the 
above limitations from each of the Contractor's employees who will 
have access to the information before the employee is allowed 
access.
    (3) The Contractor agrees that these contract conditions 
concerning the use and disclosure of CBI are included for the 
benefit of, and shall be enforceable by, both EPA and any affected 
businesses having a proprietary interest in the information.
    (4) The Contractor shall not use any CBI supplied by EPA or 
obtained during performance hereunder to compete with any business 
to which the CBI relates.
    (b) The Contractor agrees to obtain the written consent of the 
CO, after a written determination by the appropriate program office, 
prior to entering into any subcontract that will involve the 
disclosure of CBI by the Contractor to the subcontractor. The 
Contractor agrees to include this clause, including this paragraph 
(b), in all subcontracts awarded pursuant to this contract that 
require the furnishing of CBI to the subcontractor.

(End of Clause)

1552.235-77  Data Security for Federal Insecticide, Fungicide, 
Rodenticide Act Confidential Business Information (XXX 1995).

    As prescribed in 1535.007-70(d), insert the following clause:

Data Security for Federal Insecticide, Fungicide, Rodenticide Act 
Confidential Business Information (XXX 1995)

    The Contractor shall handle Federal Insecticide, Fungicide, 
Rodenticide Act (FIFRA) confidential business information (CBI) in 
accordance with the contract clause entitled ``Treatment of 
Confidential Business Information'' and ``Screening Business 
Information for Claims of Confidentiality,'' the provisions set 
forth below, and the Contractor's approved detailed security plan.
    (a) The Project Officer (PO) or his/her designee, after a 
written determination by the appropriate program office, may 
disclose FIFRA CBI to the contractor necessary to carry out the work 
required under this contract. The Contractor shall protect all FIFRA 
CBI to which it has access (including 

[[Page 64410]]
CBI used in its computer operations) in accordance with the following 
requirements:
    (1) The Contractor and Contractor's employees shall follow the 
security procedures set forth in the FIFRA Information Security 
Manual. The manual may be obtained from the Project Officer (PO) or 
the Chief, Information Services Branch (ISB), Program Management and 
Support Division, Office of Pesticide Programs (OPP) (H7502C), U.S. 
Environmental Protection Agency, 401 M Street, SW, Washington, DC 
20460.
    (2) The Contractor and Contractor's employees shall follow the 
security procedures set forth in the Contractor's security plan(s) 
approved by EPA.
    (3) Prior to receipt of FIFRA CBI by the Contractor, the 
Contractor shall submit a certification statement to the Chief of 
the ISB, with a copy to the Contracting Officer (CO), certifying 
that all employees who will be cleared for access to FIFRA CBI have 
been briefed on the handling, control and security requirements set 
forth in the FIFRA Information Security Manual.
    (4) The Contractor Document Control Officer (DCO) shall obtain a 
signed copy of the FIFRA ``Contractor Employee Confidentiality 
Agreement'' from each of the Contractor's employees who will have 
access to the information before the employee is allowed access.
    (b) The Contractor agrees that these requirements concerning 
protection of FIFRA CBI are included for the benefit of, and shall 
be enforceable by, both EPA and any affected business having a 
proprietary interest in the information.
    (c) The Contractor understands that CBI obtained by EPA under 
FIFRA may not be disclosed except as authorized by the Act, and that 
any unauthorized disclosure by the Contractor or the Contractor's 
employees may subject the Contractor and the Contractor's employees 
to the criminal penalties specified in FIFRA (7 U.S.C. 136h(f)). For 
purposes of this contract, the only disclosures that EPA authorizes 
the Contractor to make are those set forth in the clause entitled 
``Treatment of Confidential Business Information.''
    (d) The Contractor agrees to include the provisions of this 
clause, including this paragraph (d), in all subcontracts awarded 
pursuant to this contract that require the furnishing of CBI to the 
subcontractor.
    (e) At the request of EPA or at the end of the contract, the 
Contractor shall return to the EPA PO or his/her designee all 
documents, logs, and magnetic media which contain FIFRA CBI. In 
addition, each Contractor employee who has received FIFRA CBI 
clearance will sign a ``Confidentiality Agreement for Contractor 
Employees Upon Relinquishing FIFRA CBI Access Authority''. The 
Contractor DCO will also forward those agreements to the EPA PO or 
his/her designee, with a copy to the CO, at the end of the contract.
    (f) If, subsequent to the date of this contract, the Government 
changes the security requirements, the CO shall equitably adjust 
affected provisions of this contract, in accordance with the 
``Changes'' clause when:
    (1) The Contractor submits a timely written request for an 
equitable adjustment; and
    (2) The facts warrant an equitable adjustment.

(End of Clause)

1552.235-78  Data Security for Toxic Substances Control Act 
Confidential Business Information (XXX 1995).

    As prescribed in 1535.007-70(e), insert the following clause:

Data Security for Toxic Substances Control Act Confidential Business 
Information (XXX 1995)

    The Contractor shall handle Toxic Substances Control Act (TSCA) 
confidential business information (CBI) in accordance with the 
contract clause entitled ``Treatment of Confidential Business 
Information'' and ``Screening Business Information for Claims of 
Confidentiality.''
    (a) The Project Officer (PO) or his/her designee, after a 
written determination by the appropriate program office, may 
disclose TSCA CBI to the contractor necessary to carry out the work 
required under this contract. The Contractor shall protect all TSCA 
CBI to which it has access (including CBI used in its computer 
operations) in accordance with the following requirements:
    (1) The Contractor and Contractor's employees shall follow the 
security procedures set forth in the TSCA CBI Security Manual. The 
manual may be obtained from the Director, Information Management 
Division (IMD), Office of Pollution Prevention and Toxics (OPPT), 
U.S. Environmental Protection Agency (EPA), 401 M Street, SW, 
Washington, DC 20460. Prior to receipt of TSCA CBI by the 
Contractor, the Contractor shall submit a certification statement to 
the Director of the EPA OPPT/Office of Program Management and 
Evaluation, with a copy to the Contracting Officer (CO), certifying 
that all employees who will be cleared for access to TSCA CBI have 
been briefed on the handling, control, and security requirements set 
forth in the TSCA CBI Security Manual.
    (2) The Contractor shall permit access to and inspection of the 
Contractor's facilities in use under this contract by 
representatives of EPA's Assistant Administrator for Administration 
and Resources Management, and the TSCA Security Staff in the OPPT, 
or by the EPA Project Officer.
    (3) The Contractor Document Control Officer (DCO) shall obtain a 
signed copy of EPA Form 7740-6, ``TSCA CBI Access Request, 
Agreement, and Approval'' from each of the Contractor's employees 
who will have access to the information before the employee is 
allowed access. In addition, the Contractor shall obtain from each 
employee who will be cleared for TSCA CBI access all information 
required by EPA or the U.S. Office of Personnel Management for EPA 
to conduct a Minimum Background Investigation.
    (b) The Contractor agrees that these requirements concerning 
protection of TSCA CBI are included for the benefit of, and shall be 
enforceable by, both EPA and any affected business having a 
proprietary interest in the information.
    (c) The Contractor understands that CBI obtained by EPA under 
TSCA may not be disclosed except as authorized by the Act, and that 
any unauthorized disclosure by the Contractor or the Contractor's 
employees may subject the Contractor and the Contractor's employees 
to the criminal penalties specified in TSCA (15 U.S.C. 2613(d)). For 
purposes of this contract, the only disclosures that EPA authorizes 
the Contractor to make are those set forth in the clause entitled 
``Treatment of Confidential Business Information.''
    (d) The Contractor agrees to include the provisions of this 
clause, including this paragraph (d), in all subcontracts awarded 
pursuant to this contract that require the furnishing of CBI to the 
subcontractor.
    (e) At the request of EPA or at the end of the contract, the 
Contractor shall return to the EPA PO or his/her designee, all 
documents, logs, and magnetic media which contain TSCA CBI. In 
addition, each Contractor employee who has received TSCA CBI 
clearance will sign EPA Form 7740-18, ``Confidentiality Agreement 
for Contractor Employees Upon Relinquishing TSCA CBI Access 
Authority''. The Contractor DCO will also forward those agreements 
to the EPA OPPT/IMD, with a copy to the CO, at the end of the 
contract.
    (f) If, subsequent to the date of this contract, the Government 
changes the security requirements, the CO shall equitably adjust 
affected provisions of this contract, in accordance with the 
``Changes'' clause when:
    (1) The Contractor submits a timely written request for an 
equitable adjustment; and
    (2) The facts warrant an equitable adjustment.

(End of Clause)

1552.235-79  Release of contractor confidential business information 
(XXX 1995).

    As prescribed in 1535.007-70(f), insert the following clause:

Release of Contractor Confidential Business Information (XXX 1995)

    (a) The Environmental Protection Agency (EPA) may find it 
necessary to release information submitted by the Contractor either 
in response to this solicitation or pursuant to the provisions of 
this contract, to individuals not employed by EPA. Business 
information that is ordinarily entitled to confidential treatment 
under existing Agency regulations (40 CFR part 2) may be included in 
the information released to these individuals. Accordingly, by 
submission of this proposal or signature on this contract or other 
contracts, the Contractor hereby consents to a limited release of 
its confidential business information (CBI).
    (b) Possible circumstances where the Agency may release the 
Contractor's CBI include, but are not limited to the following:
    (1) To other Agency contractors tasked with assisting the Agency 
in the recovery of Federal funds expended pursuant to the 
Comprehensive Environmental Response, Compensation, and Liability 
Act, 42 U.S.C. 9607, as amended, (CERCLA or Superfund);
    (2) To the U.S. Department of Justice (DOJ) and contractors 
employed by DOJ for use in advising the Agency and representing the 
Agency in procedures for the recovery of Superfund expenditures; 

[[Page 64411]]

    (3) To parties liable, or potentially liable, for costs under 
CERCLA Sec. 107 (42 U.S.C. 9607), et al, and their insurers 
(Potentially Responsible Parties) for purposes of facilitating 
settlement or litigation of claims against such parties;
    (4) To other Agency contractors who, for purposes of performing 
the work required under the respective contracts, require access to 
information the Agency obtained under the Clean Air Act (42 U.S.C. 
7401 et seq.); the Federal Water Pollution Control Act (33 
U.S.C.1251 et seq.); the Safe Drinking Water Act (42 U.S.C. 300f et 
seq.); the Federal Insecticide, Fungicide and Rodenticide Act (7 
U.S.C. 136 et seq.); the Resource Conservation and Recovery Act (42 
U.S.C. 6901 et seq.); the Toxic Substances Control Act (15 U.S.C. 
2601 et seq.); or the Comprehensive Environmental Response, 
Compensation, and Liability Act (42 U.S.C. 9601 et seq.);
    (5) To other Agency contractors tasked with assisting the Agency 
in handling and processing information and documents in the 
administration of Agency contracts, such as providing both preaward 
and post award audit support and specialized technical support to 
the Agency's technical evaluation panels;
    (6) To employees of grantees working at EPA under the Senior 
Environmental Enrollee (SEE) Program;
    (7) To Speaker of the House, President of the Senate, or 
Chairman of a Committee or Subcommittee;
    (8) To entities such as the General Accounting Office, boards of 
contract appeals, and the Courts in the resolution of solicitation 
or contract protests and disputes;
    (9) To Agency contractor employees engaged in information 
systems analysis, development, operation, and maintenance, including 
performing data processing and management functions for the Agency; 
and
    (10) Pursuant to a court order or Court-supervised agreement.
    (c) The Agency recognizes an obligation to protect the 
contractor from competitive harm that may result from the release of 
such information to a competitor. (See also the clauses in this 
document entitled ``Screening Business Information for Claims of 
Confidentiality'' and ``Treatment of Confidential Business 
Information.'') Except where otherwise provided by law, the Agency 
will permit the release of CBI under subparagraphs (1), (3), (5), or 
(9) only pursuant to a confidentiality agreement.
    (d) With respect to contractors, 1552.235-71 will be used as the 
confidentiality agreement. With respect to Potentially Responsible 
Parties, such confidentiality agreements may permit further 
disclosure to other entities where necessary to further settlement 
or litigation of claims under CERCLA. Such entities include, but are 
not limited to accounting firms and technical experts able to 
analyze the information, provided that they also agree to be bound 
by an appropriate confidentiality agreement.
    (e) This clause does not authorize the Agency to release the 
contractor's CBI to the public pursuant to a request filed under the 
Freedom of Information Act.
    (f) The Contractor agrees to include this clause, including this 
paragraph (f), in all subcontracts at all levels awarded pursuant to 
this contract that require the furnishing of confidential business 
information by the subcontractor.

(End of Clause)

    Dated: October 30, 1995.
Betty L. Bailey,
Director, Office of Acquisition Management.
[FR Doc. 95-30357 Filed 12-14-95; 8:45 am]
BILLING CODE 6560-50-P

Complete official Federal Register PDF

FR Doc. 95-30344 The State Vocational Rehabilitation Services Program
[Federal Register Volume 60, Number 241 (Friday, December 15, 1995)]
[Proposed Rules]
[Pages 64476-64524]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30344]

[[Page 64475]]

_______________________________________________________________________

Part II

Department of Education

_______________________________________________________________________

34 CFR Part 361

The State Vocational Rehabilitation Services Program; Proposed Rule

Federal Register / Vol. 60, No. 241 / Friday, December 15, 1995 / 
Proposed Rules 

[[Page 64476]]

DEPARTMENT OF EDUCATION

34 CFR Part 361

RIN 1820-AB12

The State Vocational Rehabilitation Services Program

AGENCY: Department of Education.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Secretary proposes to amend the regulations governing The 
State Vocational Rehabilitation Services Program. These amendments are 
needed to implement changes to the Rehabilitation Act of 1973 (Act) 
made by the Rehabilitation Act Amendments of 1992, enacted on October 
29, 1992, as amended by the 1993 technical amendments (hereinafter 
collectively referred to as the 1992 Amendments).

DATES: Comments must be received on or before February 23, 1996.

ADDRESSES: All comments concerning these proposed regulations should be 
addressed to Fredric K. Schroeder, U.S. Department of Education, 600 
Independence Avenue SW., Room 3028, Mary E. Switzer Building, 
Washington, D.C. 20202-2531. Comments transmitted by facsimile should 
be sent to (202) 205-9772. Comments can be transmitted in an electronic 
format either through the electronic bulletin board system (BBS) of the 
Rehabilitation Services Administration (RSA) or through internet. The 
internet address is ``[email protected]''. The access number for the RSA 
BBS is (202) 205-5574 for low speed (2400 BPS or lower) modems and 
(202) 205-6174 for high speed (9600 BPS and higher) modems. Comments 
can also be transmitted to the RSA BBS through Fedworld via internet 
using the telnet command. Telnet to: ``Fedworld.gov''. All comments 
transmitted in an electronic format should be sent to the following RSA 
BBS mailbox: ``RSADPPES''. To facilitate the analysis of comments, 
electronic transmission of comments is preferred. Also, comments should 
be specific and identified by proposed regulatory citation. Comments 
received by RSA after the due date for comments will not be considered.
    A copy of any comments that concern information collection 
requirements should also be sent to the Office of Management and Budget 
at the address listed in the Paperwork Reduction Act section of this 
preamble.

FOR FURTHER INFORMATION CONTACT: Beverlee Stafford, U.S. Department of 
Education, 600 Independence Avenue SW., Room 3014, Mary E. Switzer 
Building, Washington, D.C. 20202-2531. Telephone (202) 205-8831. 
Individuals who use a telecommunications device for the deaf (TDD) may 
call (202) 205-5538.

SUPPLEMENTARY INFORMATION: The State Vocational Rehabilitation Services 
Program (program) is authorized by Title I of the Act (29 U.S.C. 701-
744). This program provides support to each State to assist it in 
operating a comprehensive, coordinated, effective, efficient, and 
accountable State program to assess, plan, develop, and provide 
vocational rehabilitation (VR) services to individuals with 
disabilities so that those individuals may prepare for and engage in 
gainful employment, consistent with their strengths, resources, 
priorities, concerns, abilities, capabilities, and informed choice. The 
program supports the National Education Goal that, by the year 2000, 
every adult American, including individuals with disabilities, will 
possess the knowledge and skills necessary to compete in a global 
economy and exercise the rights and responsibilities of citizenship.
    Regulations for this program were last published in their entirety 
on May 12, 1988 (53 FR 16978) to implement the 1986 amendments to the 
Act and are codified in 34 CFR Part 361. In addition, a notice of 
proposed rulemaking (NPRM) for this program was published on July 3, 
1991 (56 FR 30620) (1991 NPRM), but it was never finalized.
    In the 1991 NPRM, the Secretary proposed amendments to the 
regulations for this program that were designed to reduce regulatory 
burden on States and to place greater administrative discretion at the 
State level. More specifically, the 1991 NPRM proposed to remove or 
reduce certain State plan, paperwork, and reporting requirements not 
mandated by statute, to clarify the regulations through more precise 
definitions, and generally to simplify and condense the regulations. At 
the request of the Congress, the proposed regulations in the 1991 NPRM 
were not finalized because the Rehabilitation Act Amendments of 1992 
were being developed at that time.
    The 1992 Amendments made extensive changes to Title I of the Act 
that have far-reaching implications for the program. One of the major 
themes of the 1992 Amendments is the empowerment of individuals with 
disabilities in terms of influence on the State plan and State 
vocational rehabilitation policy through membership on the State 
Rehabilitation Advisory Council or an independent commission and 
increased participation in the development, implementation, and 
evaluation of their individualized written rehabilitation programs 
through informed choice. The statute also requires that designated 
State units (DSUs) provide for the use of appropriate modes of 
communication and accessible formats to ensure equal access for 
individuals with disabilities who need this assistance.
    A related theme is the integration of individuals with disabilities 
into the full spectrum of American life. The 1992 Amendments requires 
both that vocational rehabilitation services be provided in the most 
integrated settings possible and that employment outcomes be in the 
most integrated settings possible.
    Another key theme of the 1992 Amendments is to improve access to 
the vocational rehabilitation system. The amendments streamline the 
process for making eligibility determinations by requiring the use of 
existing information to the extent possible, by adding a presumption of 
benefit from services, and by providing a 60-day time limit for making 
eligibility determinations.
    The 1992 Amendments also focuses on expanding and improving the 
quality of services by requiring States to develop a strategic plan, by 
requiring States to develop a comprehensive system of personnel 
development to ensure that DSU personnel are adequately trained and 
meet the State's highest standards, and by requiring the development of 
standards and indicators to evaluate the performance of State programs. 
The evaluation standards and performance indicators are being developed 
separately and are not addressed in this NPRM.
    Finally, the 1992 Amendments focuses on expanding and improving 
services to certain groups of individuals with disabilities. The 
amendments include new order of selection and eligibility provisions 
that are designed to increase and improve services for individuals with 
severe disabilities, particularly individuals with the most severe 
disabilities. The amendments also contain new outreach requirements 
that are designed to increase services to individuals with disabilities 
who are members of groups that are currently unserved and underserved, 
including members of minority groups. In addition, the amendments 
contain provisions that are designed to increase coordination between 
education agencies and DSUs to better serve individuals with 
disabilities who are transitioning students.
    This NPRM proposes changes to implement the 1992 Amendments to 
Title I Parts A, B, and C of the Act (with the exception of the 
strengthened order 

[[Page 64477]]
of selection requirements in sections 12(d) and 101(a)(5)(A) of the 
Act, the evaluation standards and performance indicator requirements in 
section 106 of the Act, and the client assistance program requirements 
in section 112 of the Act, which are being implemented in separate 
rulemaking documents) and proposes to incorporate some of the changes 
that were previously proposed in the 1991 NPRM to reduce the 
administrative burden on States. This NPRM also proposes other changes 
that the Secretary believes are important to update, consolidate, 
clarify, and in other ways improve the regulations for this program.
    Executive Order 12866 encourages Federal agencies to facilitate 
meaningful participation in the regulatory development process. 
Accordingly, prior to drafting this NPRM, RSA, on March 31, 1994, made 
draft proposed regulations (draft regulations) available in accessible 
formats, including an electronic format, to a broad spectrum of parties 
for informal review and comment. Over 600 letters of comments on the 
draft regulations were analyzed. RSA also gathered public input on the 
draft regulations through public meetings held in Washington, D.C. on 
April 19, May 12, and May 17, 1994; Chicago on April 26, 1994; and 
Oakland, California on May 4 and May 5, 1994; and through public 
teleconferences on April 20, May 13, May 18, and June 8, 1994. In 
addition, three separate focus groups were convened in June 1994 to 
allow for further discussion of three discrete issues: eligibility 
under the program, informed choice in the selection of services and 
service providers, and the standards related to the achievement and 
maintenance of an employment outcome.
    The following is a section-by-section summary of the regulations 
proposed in this NPRM, including an explanation of the major 
provisions, how they differ from the existing and the draft 
regulations, and the reasons the Secretary is proposing them. In 
addition, in order to clarify proposed organizational changes, the 
summary identifies the sections of the current regulations, as well as 
the sections of the statute, on which every section of the proposed 
regulations is based.
    Changes to the draft regulations that appear in this NPRM were made 
in response to public comments received by RSA and input provided 
during the public meetings, teleconferences, and focus groups. 
Significant changes to the draft regulations are discussed in the 
section-by-section summary. However, minor technical and structural 
changes that do not significantly alter the provisions of the draft 
regulations are not discussed.
    In response to public commenters who viewed some of the paperwork 
requirements in the draft regulations as unduly burdensome, the 
Secretary has proposed in the NPRM eliminating or consolidating 
documentation requirements wherever feasible. Those requirements that 
would remain in the proposed regulations are considered essential to 
the proper administration of the program. Paperwork requirements in the 
following sections of the draft regulations have been removed or 
reduced: Secs. 361.13(c), 361.19, 361.20(b), 361.21 (a) and (b), 
361.22(a)(1), 361.29 (a)(2) and (a)(4), 361.33(b), 361.46, 361.47, 
361.52, and 361.53(a)(3).
    In addition, the draft regulations have been reviewed and revised 
in accordance with the Department's principles for regulating, which 
were developed as part of the Administration's regulatory reinvention 
initiative under the National Performance Review II. The principles are 
designed to ensure that the Department regulates in the most flexible, 
most equitable, and least burdensome way possible. As a result of that 
review, additional non-statutory requirements in the draft regulations 
have been eliminated or modified to reduce paperwork or process 
requirements on States and to increase State flexibility in meeting 
statutory requirements. These proposed changes are identified in the 
section-by-section summary.
    The proposed regulations, like the draft regulations, provide 
guidance through examples in the following three areas: permissible 
expenses under the definition of ``maintenance''; permissible expenses 
under the definition of ``transportation''; and meeting the final 
eligibility criterion (an individual with a disability must require VR 
services) under Sec. 361.42. Some public commenters on the draft 
regulations opposed the use of examples on the grounds that they would 
interfere with individual counselor judgment, whereas other commenters 
supported their use as an effective means of ensuring that counselors 
had ready access to information typically found in guidance materials. 
By including the examples in the regulations, the Secretary intends to 
make the regulations more comprehensive and useful. The Secretary 
emphasizes, both here and throughout the section-by-section summary, 
that the examples are provided solely for the purposes of illustration, 
do not address all situations that a rehabilitation counselor may face, 
and are not intended to preclude individual counselor judgment on a 
case-by-case basis. The examples are merely guidance material to which 
rehabilitation professionals can quickly refer.
    References in the section-by-section summary to the ``proposed 
regulations,'' as opposed to the ``draft regulations,'' refer to 
regulatory provisions included in this NPRM.

Section-by-Section Summary

Section 361.1--Purpose

    This proposed new section of the regulations would incorporate the 
language in section 100(a)(2) of the statute, which emphasizes the goal 
of gainful employment for individuals with disabilities and the 
responsibility of States to operate comprehensive, coordinated, 
effective, efficient, and accountable programs that are designed to 
assess, plan, develop, and provide vocational rehabilitation services. 
The Secretary interprets the statutory term ``gainful employment'' to 
have the same meaning as the term ``employment outcome,'' as it is 
defined in the proposed regulations.

Section 361.2--Eligibility for a Grant

    This new section is proposed for clarification. A similar section 
was proposed in the 1991 NPRM.

Section 361.3--Authorized Activities

    This new section is proposed to clarify how the funds under this 
program can be used. A similar section was proposed in the 1991 NPRM. 
It also incorporates the new statutory provision in section 111(a)(1) 
of the Act that funds may be used to develop and implement the 
strategic plan.

Section 361.4--Applicable Regulations

    This proposed section would revise Sec. 361.1(b)(1) of the existing 
regulations to clarify that the reference to 34 CFR Part 74 
(Administration of Grants to Institutions of Higher Education, 
Hospitals, and Nonprofit Organizations) applies only to the award of 
subgrants by vocational rehabilitation agencies to entities that are 
not State or local governments or Indian tribal organizations and to 
remove the reference to 34 CFR Part 78 (The Education Appeal Board) 
because it has been deleted from the Education Department General 
Administrative Regulations (EDGAR). In addition, the proposed section 
would add references to 34 CFR Parts 80, 81, 82, 85, and 86 because 
those parts have been added to EDGAR since the regulations for this 
program were last revised, and they are applicable to this program. 

[[Page 64478]]

Section 361.5--Applicable Definitions

    This proposed section is taken from Sec. 361.1(c) of the existing 
regulations. It has been revised to incorporate changes in the 
definitions in section 7 of the Act that were made by the 1992 
Amendments. The definitions are organized alphabetically and are 
numbered for purposes of quick identification.
    The following definitions from the current regulations are not 
included in the proposed regulations since the terms have been removed 
or replaced in the Act: ``employability,'' ``evaluation of vocational 
rehabilitation potential,'' ``initial expenditure,'' ``rehabilitation 
facility,'' and ``time-limited services.'' In addition, the term 
``workshop'' is not used or defined in the proposed regulations. 
Statutory definitions of the following terms have been added to the 
proposed regulations without substantive change: ``assistive technology 
device,'' ``assistive technology service,'' ``extended services,'' 
``impartial hearing officer,'' ``ongoing support services,'' ``personal 
assistance services,'' ``rehabilitation technology,'' ``supported 
employment,'' ``supported employment services,'' and ``transition 
services. In addition, definitions of ``American Indian'' and ``State'' 
have been revised to reflect statutory changes made by the 1992 
Amendments.
    Definitions of the terms ``community rehabilitation program'' and 
``employment outcome,'' which are defined in the Act, have been revised 
to clarify or elaborate on the statutory definitions. The proposed 
definition of ``community rehabilitation program'' incorporates the 
definition in section 7(25) of the Act, but would add a definition of 
the word ``program'' to clarify that community rehabilitation programs 
do not include individual practitioners, such as physicians or physical 
therapists, who provide VR services but are not affiliated with an 
agency, organization, or institution that provides VR services as one 
of its major functions. This clarification is based on the Secretary's 
view that Congress did not intend for the assessment of the capacity 
and effectiveness of community rehabilitation programs and related 
requirements to include every individual person who provides VR 
services. However, the Secretary interprets the term community 
rehabilitation program and the associated requirements to apply to a 
vocational rehabilitation services unit of a hospital. In addition, in 
response to public comment on the draft regulations, the Secretary 
proposes to broaden the meaning of the term ``program'' from an entity 
that provides or facilitates the provision of VR services as its 
primary function to an entity that provides or facilitates the 
provision of VR services as one of its major functions. This change 
would enable, for example, a local affiliate of the United Cerebral 
Policy Foundation that provides VR services, in addition to 
disseminating information and providing educational services, to be 
considered a ``community rehabilitation program'' under the definition.
    The proposed definition of ``employment outcome'' elaborates on the 
definition in section 7(5) of the Act by incorporating into the 
definition the concept in the Act that an employment outcome must be 
consistent with an individual's strengths, resources, priorities, 
concerns, abilities, capabilities, interests, and informed choice. The 
proposed definition would replace the definition of ``employability'' 
in Sec. 361.1 of the existing regulations. In response to the draft 
regulations, several commenters expressed concern about the scope of 
permissible employment outcomes under the definition. Although the 
proposed definition, unlike the current regulatory definition of 
``employability,'' does not identify a full range of permissible 
employment outcomes under the vocational rehabilitation services 
program, the Secretary does not intend the proposed definition to 
exclude any employment outcome that has been permitted in the past. 
Thus, for example, homemaker, extended employment, and self-employment 
remain acceptable employment outcomes. The proposed definition does, 
however, recognize competitive employment as the optimal employment 
outcome under the program, and language emphasizing this has been added 
to the definition.
    The Secretary proposes new definitions or revisions to the 
definitions in the existing regulations for the following terms that 
are not defined in the Act: ``administrative costs,'' ``applicant,'' 
``appropriate modes of communication,'' ``comparable services and 
benefits,'' ``competitive employment,'' ``construction of a facility 
for a public or nonprofit community rehabilitation program,'' 
``establishment, development, or improvement of a public or nonprofit 
community rehabilitation program,'' ``establishment of a facility for a 
public or nonprofit community rehabilitation program,'' ``extended 
employment,'' ``family member,'' ``individual's representative,'' 
``integrated setting,'' ``maintenance,'' ``post-employment services,'' 
``transitioning student,'' and ``transportation.''
    The proposed definition of ``administrative costs'' is based on 
existing RSA subregulatory guidance and definitions of the term that 
are used in other RSA programs. The definition, which is substantially 
the same as the definition of ``administrative costs'' in the draft 
regulations, lists, as examples, certain types of expenses that would 
constitute administrative costs. Several commenters on the draft 
regulations suggested adding other items to the definition. In 
response, the Secretary has amended the definition of ``administrative 
costs'' to clarify that the types of expenses listed in the definition 
are intended only as examples and that other expenditures would be 
considered administrative costs as long as those expenditures relate to 
program planning, development, monitoring, and evaluation.
    The Secretary proposes to define ``applicant'' for clarification by 
referencing the requirements for submitting an application in 
Sec. 361.41(b)(2) of the proposed regulations.
    In response to public comment on the draft regulations, the 
Secretary proposes to change the term ``special modes of 
communication'' to ``appropriate modes of communication'' to ensure 
consistency with the Americans with Disabilities Act (ADA). In 
addition, the Secretary proposes to eliminate references in the 
definition to individuals who are blind, deaf, or hearing-impaired to 
clarify that the proposed definition is not limited by type of 
disability and that it includes all appropriate modes of communication 
necessary to enable any individual with a disability to comprehend 
information being communicated.
    Finally, the Secretary has expanded the list of examples of 
communication services and materials in the proposed definition. 
However, the Secretary does not consider the list to be all-inclusive 
and emphasizes that other appropriate modes of communication not 
specified in the proposed definition are also available.
    The proposed definition of ``comparable services and benefits'' is 
based on a definition of that term that was proposed in the 1991 NPRM. 
It is intended to support the statutory purpose of conserving 
rehabilitation funds, while ensuring the provision of appropriate and 
timely services in lieu of those provided by the DSU. The proposed 
definition revises the definition proposed in the 1991 NPRM to remove 
private agencies (i.e., community, philanthropic, and other 

[[Page 64479]]
private entities that are not VR service providers but do provide 
financial or other assistance to individuals with disabilities to help 
meet VR needs, such as scholarship assistance from a local Lions Club) 
as one of the sources of comparable services and benefits because the 
Secretary interprets the reference in the statute to ``other programs'' 
to mean other public programs. In addition, the Secretary believes it 
would be too burdensome to require State agencies to determine the 
availability of comparable services and benefits from private agencies 
prior to providing services and benefits under this program. The 
Secretary would, however, continue to encourage State agencies to use 
services and benefits that are available from private agencies to the 
extent they are known. In response to public comment on the draft 
regulations, the Secretary has further amended the term by clarifying 
that comparable services and benefits must be available ``within a 
reasonable period of time'' and must be commensurate with the services 
that the individual would otherwise receive from the VR agency.
    In response to public comment on the draft regulations, the 
Secretary has consolidated the definitions of ``competitive 
employment'' and ``competitive work'' from the draft regulations into a 
single proposed definition of ``competitive employment.'' The 
consolidated definition recognizes that integration (i.e., an 
employment outcome in an integrated job setting) is an element of 
competitive employment, rather than a separate concept. It would 
establish a general requirement that individuals must receive 
compensation that is at or above the minimum wage, but not less than 
the prevailing community wage for non-disabled individuals performing 
the same or similar work.
    The consolidated definition would apply to supported employment as 
well as to other kinds of competitive employment outcomes. Under the 
proposed definition, however, an employment outcome in a supported 
employment setting in which an individual receives wages below the 
minimum wage in accordance with section 14(c) of the Fair Labor 
Standards Act (FLSA) (i.e., wages based on individual productivity) 
would no longer be considered competitive employment. Although this 
proposed change would represent a significant departure from 
longstanding RSA regulatory policy, the Secretary agrees with those 
public commenters who suggested that competitive employment outcomes 
should be limited to those in which individuals are compensated at or 
above the minimum wage. In addition, this proposed change is consistent 
with section 101(a)(16) of the Act, which requires DSUs annually to 
review and reevaluate the status of each individual in an employment 
setting under section 14(c) of the FLSA in order to determine the 
individual's readiness for competitive employment. This statutory 
requirement indicates that supported employment settings in which 
individuals are compensated below minimum wage in accordance with the 
FLSA do not constitute competitive employment. The Secretary also notes 
that the proposed change would have the effect of requiring individuals 
in supported employment to earn at least the minimum wage in order to 
receive services under Title VI, Part C of the Act. Finally, so that 
the impact of this proposed change can be appropriately evaluated, the 
Secretary requests public comment on the extent to which individuals 
currently in supported employment earn less than the minimum wage.
    The proposed definition of the term ``construction of a facility 
for a public or nonprofit community rehabilitation program'' is based 
on the definition of the term ``construction of a rehabilitation 
facility'' in Sec. 361.1(c) of the existing regulations and the 
definition of the term ``construction'' in section 7(1) of the Act. The 
proposed regulations also incorporate the 1992 Amendments, which 
replaced the concept of rehabilitation facilities with ``community 
rehabilitation programs.'' The word ``facility'' is used in the 
proposed regulations only to refer to a ``building'' or ``structure.'' 
In addition, the Secretary proposes to fold into this definition all 
authorized construction expenditures under this program, which are 
currently contained in Sec. 361.74(a) of the existing regulations.
    The Secretary proposes to define the term ``eligible individual'' 
for clarification throughout the regulations by referencing the basic 
eligibility criteria in proposed Sec. 361.42(a).
    The proposed definition of the term ``establishment, development, 
or improvement of a public or nonprofit community rehabilitation 
program'' elaborates on the statutory definition of the term 
``establishment of a community rehabilitation program'' by 
incorporating all of the types of expenditures for which a State unit 
can receive Federal financial participation. These provisions are taken 
from Sec. 361.73(a) of the existing regulations and include the 
limitations on staffing costs initially proposed in the 1991 NPRM.
    The Secretary proposes to define separately the term 
``establishment of a facility for a public or nonprofit community 
rehabilitation program'' for purposes of clarification. The proposed 
definition covers only those authorized activities contained in the 
definition of ``establishment, development, or improvement of a public 
or nonprofit community rehabilitation program'' that involve 
facilities. In response to public comment about these three terms, the 
Secretary wishes to emphasize that funds under this program cannot be 
used to support community rehabilitation programs that are profitmaking 
organizations.
    In response to public comment on the draft regulations, the 
Secretary has amended the proposed definition of the term ``extended 
employment'' to clarify that it means work in a non-integrated or 
sheltered setting for a public or private nonprofit agency or 
organization that provides compensation in accordance with the Fair 
Labor Standards Act as well as any on-the-job support services the 
individual might require. In response to several commenters who 
expressed concern with language in the draft definition that stated 
that some individuals in extended employment ``are not ready for 
competitive employment,'' the Secretary has modified the proposed 
definition to clarify that the purpose of extended employment is to 
enable individuals to continue to train or otherwise prepare for 
competitive employment, unless the individual makes an informed choice 
to remain in extended employment.
    In response to public comment, the definition of the term ``family 
member'' has been revised to mean any individual (1) who is a relative 
or guardian, or who lives in the same household as an applicant or 
eligible individual regardless of their interpersonal relationship; (2) 
who has a substantial interest in the well-being of that individual; 
and (3) who needs vocational rehabilitation services to enable the 
applicant or eligible individual to achieve an employment outcome.
    In response to public comment on the draft regulations, the 
Secretary proposes to amend the definition of the term ``impartial 
hearing officer'' to clarify that a member of the DSU's rehabilitation 
advisory council may not serve as an impartial hearing officer for that 
same DSU. Under the proposed definition, however, a member of the State 
Rehabilitation Advisory Council could serve as an impartial hearing 
officer in cases involving another DSU within the same State. For 
example, a member of the State Rehabilitation 

[[Page 64480]]
Advisory Council for a State unit serving individuals who are blind 
would not be precluded, solely on the basis of that membership, from 
serving as an impartial hearing officer in cases involving the State 
unit that serves individuals other than individuals with visual 
disabilities.
    The Secretary proposes to include the term ``individual with a most 
severe disability'' in the definitions to clarify that States are 
required to define the term as a subset of and consistent with the 
definition of the statutory term ``individual with a severe 
disability.''
    The Secretary proposes to define the term ``individual's 
representative,'' consistent with the list of potential representatives 
in the Act, so that the defined term, rather than the long list of 
potential representatives, can be referenced throughout the 
regulations. In response to public comment on the draft regulations, 
the Secretary proposes to amend the definition to clarify that it means 
any representative chosen by an applicant or eligible individual, 
including a parent, guardian, other family member, or advocate, unless 
a representative has been appointed by a court to represent the 
interests of the individual, in which case the court-appointed 
representative is the individual's representative.
    The proposed definition of the term ``integrated setting'' is 
designed to implement the intent of the statute that individuals 
receive VR services and achieve employment outcomes in the most 
integrated settings possible, consistent with the individual's informed 
choice. In the draft regulations the term was defined broadly to mean a 
setting in which the majority of individuals with whom individuals with 
disabilities interact meaningfully, excluding service providers, are 
non-disabled individuals. In response to public comment on the draft 
regulations, the Secretary proposes to amend the term by requiring that 
applicants or eligible individuals need only be given the opportunity 
to interact with non-disabled individuals, excluding service providers, 
on a regular basis for a setting to be considered integrated. This 
proposed change would permit employment at a center for independent 
living, for example, to be considered integrated as long as the 
employee has the opportunity to regularly interact with non-disabled 
persons, even though the Act requires that a majority of a center's 
employees be disabled. The proposed definition also applies to 
supported employment placements. A separate definition of 
``integration'' for supported employment placements is, therefore, no 
longer needed and is not included in the proposed regulations.
    ``Maintenance'' would be defined to clarify that it includes living 
expenses (e.g., food, shelter, and clothing) only to the extent that 
they are in excess of an individual's normal expenses and that it is 
available only for eligible individuals and individuals receiving 
extended evaluation services. The proposed definition reflects 
statutory language in section 103(a)(5) of the Act that limits the 
provision of maintenance to ``additional costs while participating in 
rehabilitation.'' The Secretary considers an individual to be 
participating in rehabilitation if the individual is receiving services 
under an individualized written rehabilitation program (IWRP) or under 
a written plan for providing extended evaluation services. The 
provision of maintenance must be tied to other needed services. 
Maintenance, however, cannot be used to pay the expenses of all 
applicants receiving assessment services, as several commenters urged. 
As discussed later in the definitions section of the preamble, the 
Secretary believes, however, that the short-term costs of food and 
shelter of applicants who are required to travel to receive assessment 
services, and who are not receiving extended evaluation services, could 
be covered as a transportation expense. In addition, the Secretary 
proposes a note following the proposed definition of maintenance that 
provides examples of permissible maintenance expenses. The last example 
was added in response to public comment and indicates that maintenance 
can be used to cover the costs of food, shelter, and clothing of 
homeless or recently deinstitutionalized individuals until other 
financial assistance can be secured for those costs. The Secretary 
emphasizes that the examples are provided solely for the purposes of 
illustration and do not preclude designated State units from providing 
maintenance in other appropriate situations.
    In response to public comment on the draft regulations, the 
Secretary proposes to amend the definition of the term ``ongoing 
support services'' by removing the requirement that the assessment of 
an individual's employment stability include one monthly contact with 
the individual's employer whenever the IWRP of an individual in 
supported employment provides for off-site monitoring. The Secretary 
emphasizes, however, that contacts with employers are authorized as 
follow-up services under paragraph (iii)(F) of the proposed definition 
and could be provided as often as necessary to reinforce a supported 
employment placement.
    In response to public comment on the draft regulations, the 
Secretary proposes to amend the definition of the term ``physical and 
mental restoration service'' by deleting from the proposed definition 
certain services that are not specifically identified in the statute. 
For example, ``convalescent or nursing home care'' has been deleted 
since it is not specified in section 103(a)(4) of the Act and is viewed 
as a type of long-term care rather than a restoration service.
    In response to public comment on the draft regulations, the 
Secretary proposes to amend the definition of the term ``physical or 
mental impairment'' to mean an injury, disease, or other condition that 
materially limits, or if not treated will result in materially 
limiting, mental or physical functioning.
    The Secretary proposes to define ``post-employment services'' based 
on existing subregulatory guidance. In response to public comment on 
the draft regulations, the Secretary has amended the proposed 
definition to clarify that post-employment services are any vocational 
rehabilitation services for individuals that are provided subsequent to 
the achievement of an employment outcome and that are necessary to 
enable the individual to maintain, regain, or advance in employment 
consistent with the individual's strengths, resources, priorities, 
concerns, abilities, capabilities, and interests. In addition, the 
Secretary proposes to amend the note following the proposed definition 
in order to further explain the circumstances under which post-
employment services may be provided.
    In response to public comment on the draft regulations, the 
Secretary has amended the definition of the term ``substantial 
impediment to employment,'' as used in the criteria for determining 
eligibility under Sec. 361.42(a)(1), to mean a physical or mental 
impairment that hinders (rather than ``prevents'') an individual from 
preparing for, entering into, engaging in, or retaining employment 
consistent with the individual's abilities and capabilities. The 
Secretary proposes to delete the provision in the draft regulations 
that the impairment hinder the individual from employment that is 
consistent with the individual's interests. The purpose of this change 
is to clarify that an individual with an impairment who is not 
interested in his or her current employment does not, based on that 
lack of interest alone, have a substantial impediment to employment.
    In response to public comment on the draft regulations and 
consistent with section 103(a)(14) of the Act, the 

[[Page 64481]]
Secretary proposes to amend the definition of the term ``transition 
services'' to clarify that transition services must promote or 
facilitate the accomplishment of long-term rehabilitation goals and 
intermediate rehabilitation objectives identified in the transitioning 
student's IWRP.
    In response to public commenters who sought further clarification 
of the term ``transitioning student'' in the draft regulations, the 
Secretary proposes to define the term to mean a student who is eligible 
to receive vocational rehabilitation services and is receiving 
``transition services'' as defined in the regulations.
    The Secretary proposes to define the term ``transportation'' on the 
basis of existing subregulatory guidance. In addition, the Secretary 
has included a note following the proposed definition that provides 
examples of permissible transportation expenses. One of these examples 
covers the short-term, travel-related expenses (i.e., food and shelter) 
of applicants receiving assessment services. These expenses, as 
discussed previously, cannot be provided under the maintenance 
authority. The Secretary also emphasizes that these examples are 
provided solely for the purposes of illustration and do not preclude 
DSUs from providing transportation costs in other appropriate 
situations.
    Finally, the following nomenclature changes from the Act have been 
incorporated into the definitions and throughout the regulations: 
references to all forms of the word ``handicap'' have been changed to 
the corresponding form of the word ``disability;'' certain references 
to the word ``disability'' have been replaced by the word 
``impairment'' (e.g., physical or mental impairment); and the word 
``client'' has been removed and replaced with other appropriate terms, 
including ``applicant,'' ``eligible individual,'' ``individual,'' or 
``individual with a disability.''
    The Secretary also notes that proposed changes to supported 
employment definitions included in this NPRM would also affect those 
definitions in 34 CFR Parts 363, 376, and 380.

Section 361.10--Submission, Approval, and Disapproval of the State Plan

    Proposed Sec. 361.10 contains certain requirements from Secs. 361.2 
and 361.3 of the existing regulations relating to the purpose, 
duration, development, submission, and approval of the State plan. Many 
of the other requirements in Secs. 361.2 and 361.3 of the existing 
regulations have been relocated to other sections of the proposed 
regulations because they deal with the substance and administration of 
the State plan. Proposed Sec. 361.10 also incorporates the new 
statutory provision that authorizes the Secretary to approve the 
submission of a State plan for a period other than three years if it 
corresponds to the period required for another plan required under 
Federal law. Proposed paragraph (j) of this section provides the 
procedures for disapproval of the State plan. The procedural 
protections would be the same as those that are currently provided when 
the Secretary withholds funds.
    Paragraphs (e) and (f) of Sec. 361.2 of the existing regulations, 
which contain provisions regarding the designation of and transition to 
a new State agency or State unit, would be removed from the proposed 
regulations. The 1991 NPRM proposed removal of these requirements 
because of the paperwork burden, and they have been omitted in this 
NPRM for the same reason.

Section 361.11--Withholding of Funds

    Proposed Sec. 361.11 revises Sec. 361.4 of the existing regulations 
to make withholding hearings under this program subject to the 
jurisdiction of and the procedural requirements governing the 
Department's Office of Administrative Law Judges in EDGAR, 34 CFR Part 
81, rather than program specific hearing procedures in current 
Secs. 361.170 through 361.186, which would be repealed. This is 
consistent with the changes proposed in the 1991 NPRM.

Section 361.12--Methods of Administration

    This proposed section is taken from Sec. 361.10 of the existing 
regulations. The proposed regulations add a clause to clarify that 
proper and efficient administration of the State plan includes 
procedures to ensure accurate data collection and financial 
accountability.

Section 361.13--State Agency for Administration

    This proposed section consolidates information contained in 
Secs. 361.5, 361.6, and 361.8 of the existing regulations regarding the 
designation of the State agency, the organizational level and status of 
the State unit, and the full-time director requirement.
    In an effort to reduce the regulatory burden and increase State 
flexibility in accordance with the Department's principles for 
regulating, the Secretary proposes to delete the requirement in 
Sec. 361.13(a)(1)(i) of the draft regulations and Sec. 361.5(b)(1) of 
the current regulations that a designated State agency that has as its 
major function vocational rehabilitation or vocational and other 
rehabilitation of individuals with disabilities also ``have the 
authority, subject to the supervision of the Governor, if appropriate, 
to define the scope of the program within the provisions of State and 
Federal law and to direct its administration without external 
administrative controls.'' Elimination of this non-statutory 
requirement, which applies currently to only one of the three sole 
State agency options identified in the regulations, is intended to 
increase State flexibility in locating and administering its vocational 
rehabilitation program.
    Several commenters on the draft regulations requested clarification 
of the requirement in Sec. 361.13(b)(1)(iii) that at least 90 percent 
of the State unit staff work full-time on the rehabilitation work of 
the organizational unit, which must be primarily concerned with 
vocational rehabilitation or vocational rehabilitation and other 
rehabilitation. This requirement means that if the organizational unit 
provides other rehabilitation services, in addition to vocational 
rehabilitation, the 90 percent staffing requirement applies to all unit 
staff providing rehabilitation services, not to just the vocational 
rehabilitation staff. ``Other rehabilitation'' includes, but is not 
limited to, other programs that provide medical, psychological, 
educational, or social services to individuals with disabilities. For 
example, a State unit with 90 percent of its staff working on 
independent living services, programs for the developmentally disabled, 
disabled children's services, services for individuals who are deaf or 
hearing-impaired, services for individuals who are blind or visually 
impaired, Social Security disability determinations, or some other type 
of program related to individuals with disabilities, in addition to 
vocational rehabilitation, would satisfy the 90 percent requirement. 
The Secretary also notes that Federal funds under this program may be 
used only to pay the salaries of the State unit staff that are working 
full-time or part-time on vocational rehabilitation.
    In accordance with the Department's principles for regulating, the 
Secretary also proposes to delete the requirement in Sec. 361.13(c) of 
the draft regulations and Sec. 361.6(a) of the current regulations that 
the State plan describe the organizational structure of the State 
agency and its organizational units. The Secretary instead would rely 
on an assurance, required by statute, that a State agency that is 
required to have a vocational rehabilitation unit locate that 

[[Page 64482]]
unit at an organizational level comparable to other organizational 
units within the State agency. This proposed change is intended to 
reduce paperwork burdens on State agencies in developing their State 
plans.
    The Secretary is not proposing any substantive changes in paragraph 
(d) of this section to the requirements in current Sec. 361.5(e) with 
regard to the responsibility of the designated State unit for 
administration of the vocational rehabilitation program, but is 
soliciting public comment on the need for changes.
    The current regulations specify certain program functions or 
activities (determinations of eligibility, development of IWRPs, and 
decisions regarding the provision of services) that must be the 
responsibility of the DSU and that cannot be delegated to any other 
agency or individual. This non-delegation provision has been 
interpreted by RSA to mean that the DSU must carry out these functions 
or activities using its own staff. The draft proposed regulations, 
consistent with RSA subregulatory policy, specified additional program 
functions that must be carried out by the DSU: determinations that 
service recipients have achieved appropriate employment outcomes, the 
formulation and implementation of program policy, and the allocation 
and expenditure of program funds. The draft proposed regulations also 
would have strengthened the role of the State unit by requiring that 
the unit have a substantial role in all decisions affecting the 
administration of the VR program whenever management functions within 
the State agency are centralized.
    Public comment on these draft proposed changes was neither 
extensive nor consistent. Some State VR directors supported a 
strengthening of the role and authority of the DSU but thought the 
draft proposed regulations were not strong enough, while other 
commenters thought the regulations were too prescriptive and believed 
that the only program function that must be carried out directly by DSU 
staff is eligibility determinations.
    In light of the mixed public comment received thus far and the 
Administration's regulatory reinvention initiative, which is intended 
to increase State flexibility in administering Federally funded 
programs whenever permitted by statute, the Department is soliciting 
additional public comment on the following questions: Should the 
regulations expand or otherwise clarify essential program functions for 
which the DSU must be responsible in order to meet the statutory 
requirement in section 101(a)(2)(A) that it be responsible for the VR 
program? Must these essential program functions be carried out by DSU 
staff or should the regulations provide States as much flexibility as 
possible to determine how to carry out these functions as long as the 
DSU retains administrative oversight in these areas? Any changes made 
to provide increased flexibility to States would not require DSUs to 
change their current administrative practices but would provide States 
additional flexibility to restructure, consolidate, or contract out 
program operations as long as the DSU retains ultimate responsibility.

Section 361.14--Substitute State Agency

    This proposed section revises certain requirements regarding the 
selection of a substitute State agency (Sec. 361.7 of the existing 
regulations) in order to simplify the process and reduce the paperwork 
burden. The existing regulations permit applications from a potentially 
unlimited number of substitute State agency applicants, from which the 
Secretary selects the substitute State agency based on detailed 
criteria in the existing regulations. The proposed regulations place 
the authority and responsibility for the selection of a substitute 
State agency on the State so that the Secretary would need only to 
review and approve a State plan from one substitute State agency prior 
to providing funds.

Section 361.15--Local Administration

    This proposed section simplifies Sec. 361.9 of the current 
regulations by removing the requirements related to a written agreement 
between a sole local agency and the State unit in order to reduce the 
paperwork burden on States. It proposes to replace the written 
agreement requirements with assurances from the State unit in the State 
plan relating to the administration and supervision of a sole local 
agency.

Section 361.16--Establishment of an Independent Commission or a State 
Rehabilitation Advisory Council

    This proposed new section implements the new requirements related 
to the State Rehabilitation Advisory Council (Council) in section 
101(a)(36) of the Act. The proposed section clarifies that a State does 
not need to establish a Council or meet the requirements related to a 
Council if the State agency is a consumer-controlled independent 
commission. The proposed section also clarifies that if the State has a 
separate State agency for individuals who are blind, four options 
regarding the possible combinations of the two State agencies exist. 
Although only three options are identified in the Act, the section-by-
section analysis of the Act in the Conference Report clarifies that the 
fourth option, a mirror image of the third combination identified in 
the Act, is also acceptable. This option is contained in proposed 
paragraph (b)(4) of this section.

Section 361.17--Requirements for a State Rehabilitation Advisory 
Council

    This proposed new section incorporates the new statutory 
requirements in section 105 of the Act with the clarification that the 
director of the DSU is a nonvoting member of the State Rehabilitation 
Advisory Council. Since the purpose of the Council is to advise the 
State unit, and the statute is clear that the director is an ex-officio 
member of the Council, the Secretary does not believe that Congress 
intended that the director of the State unit provide advice to herself 
or himself by voting on Council decisions. Similarly, the Secretary has 
clarified the regulations to state that any employee of the designated 
State agency may serve only as a nonvoting member of the Council.
    Several commenters on the draft regulation sought clarification 
with respect to the appointment of Council representatives from the 
Client Assistance Program (CAP) and the Statewide Independent Living 
Council (SILC). In response, the Secretary proposes to amend the 
regulations to clarify that the role of the CAP and SILC is to 
recommend to the Governor, or other appropriate appointment authority 
designated by State law, Council representatives for their respective 
organizations. Based on these recommendations, the Governor or other 
State-designated authority determines who will be the Council 
appointees, since the statute clearly vests appointment authority in 
those entities. The Secretary also notes that those individuals 
recommended for Council membership by the CAP or SILC need not be CAP 
or SILC members.
    In addition, in response to public comment on the draft 
regulations, the Secretary emphasizes that, although the Council must 
be composed of at least 13 members (unless the State qualifies for an 
exception under paragraph (b)(4) of this section), a State is not 
precluded from having more than 13 individuals serve on its Council.
    The Secretary also encourages States to consider appointing Council 
members from minority backgrounds consistent with the 1992 Amendments 
to the Act, which emphasizes outreach 

[[Page 64483]]
to individuals from minority backgrounds and the need for 
rehabilitation programs to better reflect the culturally diverse 
population of the United States.
    Finally, in response to public comment on the draft regulations, 
the Secretary proposes to amend the annual reporting requirements of 
the Council by requiring the Council to submit to the Governor, or 
other appropriate State entity, and to the Secretary an annual report 
of the status of the State's vocational rehabilitation programs within 
90, rather than 60, days from the end of the fiscal year and by 
requiring that the report be available through appropriate modes of 
communication.

Section 361.18--Comprehensive System of Personnel Development

    This proposed new section incorporates the new statutory 
requirements in sections 101(a)(7) and 101(a)(35) of the Act. The 
requirements in section 101(a)(7) of the Act are virtually identical to 
requirements for a comprehensive system of personnel development under 
the Individuals with Disabilities Education Act (IDEA). For this 
reason, this section of the proposed regulations closely tracks the 
regulations implementing the IDEA requirements (34 CFR 300.380 through 
300.383), with modifications to better reflect the context of the State 
Vocational Rehabilitation Services Program.
    Some commenters on the draft regulations questioned the basis for 
requiring the involvement of the State Rehabilitation Advisory Council 
in the development of personnel standards. The Act requires that the 
Council generally advise the State unit in connection with the carrying 
out of its programmatic responsibilities. In addition, the State agency 
is required to consult, and seek advice from, the Council on issues 
affecting the development of the State plan. Because an effective 
system of personnel development is an essential part of the State plan 
and a critical element to the success of the State Vocational 
Rehabilitation Services Program, the Secretary considers it necessary 
for the Council to participate in the development of State personnel 
standards.
    Paragraph (a) of this section requires that the State plan include, 
on an annual basis, a description of a system for collecting and 
analyzing personnel data. Several commenters on the draft regulations 
expressed concern about the amount of data that must be provided to the 
Secretary under this provision. In response, the Secretary emphasizes 
that, although annual data collection and analysis requirements are 
statutorily imposed, the proposed regulations require only that the 
State plan include a description of the system used to collect the data 
on personnel needs and personnel development and do not require the 
State to submit the actual data to the Secretary.
    In response to public comment on the draft regulations, the 
Secretary proposes to broaden the definition of the term ``highest 
requirements in the State applicable to that profession or 
discipline,'' as used in the development and maintenance of personnel 
standards by the State, to mean the highest entry-level academic degree 
or equivalent experience needed to meet any national- or State-
recognized certification, licensing, registration, or other comparable 
requirements that apply to a profession or discipline. The purpose of 
this change is to recognize that some States base their personnel 
standards, in part, on relevant work experience by substituting 
equivalent work experience for certain academic credentials. State 
standards of this type would meet this definition. This change, 
however, would not allow work experience to substitute for academic 
requirements if the existing State standard is based only on academic 
credentials.
    The Secretary also believes that permitting States to base highest 
personnel standards in the State on equivalent experience, as well as 
on academic degrees, stresses the significance of relevant work 
experience and will diversify further the pool from which qualified 
personnel can be selected.
    Several commenters on the draft regulations suggested areas of 
training in addition to rehabilitation technology that should be 
required in the regulations as part of the State's program of staff 
development. The Secretary believes that the specific training areas 
for staff development adopted by a State unit must be based on the 
particular needs of that State unit. The Secretary recognizes, however, 
that staff development may include, but is not limited to, training 
with respect to the requirements of the Americans with Disabilities 
Act, IDEA, and Social Security incentive programs, training to 
facilitate informed choice under this program, and training to improve 
the provision of services to culturally diverse populations. A 
provision to this effect has been added to the proposed regulations.
    In response to public comment on the draft regulations, the 
Secretary proposes to change the reference in paragraph (e) of this 
section from ``special communication needs personnel'' to ``personnel 
to address individual communication needs'' and has clarified this 
provision by requiring the State unit to describe in the State plan how 
it includes among its personnel, or obtains the services of, 
individuals able to communicate in the native languages of applicants 
and eligible individuals who have limited English speaking ability. 
That personnel may include State agency staff, family members of an 
applicant or eligible individual, community volunteers, and other 
individuals able to communicate in the appropriate native language. The 
State unit also must describe how it ensures that appropriate modes of 
communication are used for all applicants and eligible individuals.
    In response to public comment on the draft regulations, the 
Secretary wishes to stress the importance of requiring in the State 
plan a description of the State's personnel performance evaluation 
system that facilitates, and does not impede, the purposes and policies 
of the vocational rehabilitation services program outlined in the Act. 
More precisely, the proposed regulations require that the evaluation 
system further the statutory policy of serving individuals with the 
most severe disabilities. In support of this requirement, the Senate 
Committee on Labor and Human Resources states in its report that it 
``is concerned that in some States, procedures used for evaluating 
performance of counselors may have the unintended consequence of 
providing a disincentive to serve individuals with the most severe 
disabilities and those clients requiring complex services.'' The 
performance evaluation system required under the Act and included in 
the proposed regulations is designed to address these disincentives.
    The Secretary proposes to modify paragraph (g) of this section to 
track section 101(a)(7)(A)(ii) of the Act, which requires the State 
agency to describe the activities it will undertake to coordinate its 
comprehensive system of personnel development with personnel 
development under IDEA. This proposed change is intended to increase 
the flexibility of State agencies to implement the most effective 
procedures for coordinating the development of personnel under both 
statutes. An example of how a State may address this coordination 
requirement would be to establish a joint continuing education program 
for both DSU personnel and personnel under IDEA that deals with the 
provision of VR services, including transition services, to 
transitioning students. 

[[Page 64484]]

Section 361.19--Affirmative Action for Individuals With Disabilities

    This proposed section, which is based on section 101(a)(6)(A) of 
the Act and Sec. 361.15 of the existing regulations, requires the State 
agency to take affirmative action to employ and advance in employment 
qualified individuals with disabilities. In accordance with the 
Department's principles for regulating, the Secretary proposes to 
delete the non-statutory requirement in the draft regulations and the 
current regulations that the State unit develop an affirmative action 
plan that provides for specific goals, action steps, timetables, 
evaluation criteria for measuring progress, and complaint and 
enforcement procedures. By not requiring a formal affirmative action 
plan or specifying the minimum requirements a State must incorporate 
into that plan, the proposed provision would give State agencies 
greater flexibility to take those steps it considers most appropriate 
for increasing the number of qualified individuals with disabilities 
that it employs or advances in employment. The proposed changes also 
would reduce State paperwork burdens.

Section 361.20--State Plan Development

    This proposed section revises Sec. 361.18 of the existing 
regulations to implement new requirements in section 101(a)(23) of the 
Act.
    Consistent with section 101(a)(23) of the Act, paragraph (a)(1) of 
this section of the regulations would require the State unit to conduct 
public meetings throughout the State to provide all segments of the 
public, including interested groups, organizations, and individuals, an 
opportunity to comment on the State plan prior to its development and 
to comment on any revisions to the State plan. In accordance with the 
Department's principles for regulating, the Secretary believes that 
States should have the latitude to develop their own procedures for 
ensuring that interested parties are afforded a meaningful opportunity 
to comment on the State plan before it is developed and when it is 
revised. Additionally, in order to satisfy the statutory requirement 
that the State unit, prior to conducting public meetings throughout the 
State, provide appropriate and sufficient notice of the public 
meetings, the proposed regulations would require the State unit to 
follow notice requirements established under State law or, in the 
absence of those requirements, to consult with the State Rehabilitation 
Advisory Council to develop notice procedures. The proposed regulations 
would not impose any specific minimum Federal requirements for what 
constitutes ``appropriate and sufficient notice.''
    In response to those commenters who sought regulatory clarification 
of the public participation and notice requirements of this section, 
the Secretary provides the following examples as suggested ways a DSU 
might meet these requirements. A State unit could satisfy the public 
participation requirement, for example, by soliciting input from the 
public before developing a preliminary draft State plan and making the 
preliminary draft plan available to the public 30 days prior to the 
public meetings. An example of ``appropriate and sufficient notice'' of 
public meetings would be notice that is provided at least 30 days prior 
to a public meeting through various media available to the general 
public, such as newspapers and public service announcements, and 
through specific contacts with appropriate constituency groups and 
organizations identified by the State unit, in consultation with the 
State Rehabilitation Advisory Council. An example of how a State unit 
could meet the statutory requirement that it ``conduct public meetings 
throughout the State,'' would be to hold public meetings in at least 
two different geographic locations that are among the State's most 
densely populated areas and at sites that are accessible to individuals 
with disabilities.
    Some commenters on the draft regulations suggested that larger 
States be required to hold a greater number of public meetings than 
smaller States, while other commenters suggested that States make use 
of emerging technologies that enable individuals to participate in 
public meetings without having to be in attendance. The Secretary 
encourages each State to hold as many public meetings as are necessary 
to ensure meaningful participation of all interested persons and 
organizations in that State. The Secretary also urges States to 
consider using alternative or emerging technologies that allow for 
wider public participation. The proposed regulations are intended to 
provide each State with the flexibility to choose the manner in which 
it conducts public meetings (e.g., in person, satellite broadcasts, 
teleconferences, or a combination thereof) as long as the meetings are 
truly interactive and are designed to maximize the opportunity for 
meaningful participation.
    The proposed section also would implement the new statutory 
provision in section 105(c)(2) of the Act that requires the State 
Rehabilitation Advisory Council to advise the State unit on the 
preparation of the State plan by requiring the State unit to consult 
with the Council in the development of the State plan. Finally, the 
proposed section implements the new statutory requirement in section 
101 (a)(32) of the Act that the State plan describe the manner in which 
it will modify State policy and procedures in response to consumer 
satisfaction surveys.

Section 361.21--Consultations Regarding the Administration of the State 
Plan

    This proposed section is also taken from Sec. 361.18 of the 
existing regulations. It incorporates section 101(a)(18) of the Act, 
including the new statutory requirement regarding consultation with the 
director of the CAP. It would also require consultation with the State 
Rehabilitation Advisory Council, consistent with the Council functions 
in new section 105(c) of the Act. It proposes to remove provisions in 
the existing regulations that list examples of matters of general 
policy development and implementation. Finally, this proposed section, 
as well as the previous section, would implement new section 101(a)(32) 
of the Act, which requires the State plan to describe the manner in 
which the State will modify State policy and procedures in response to 
consumer satisfaction surveys.

Section 361.22--Cooperation With Agencies Responsible for Transitioning 
Students

    This proposed new section combines Sec. 361.19(b) of the existing 
regulations, which requires the State plan to provide for the 
coordination of services for individuals who are eligible both for 
vocational rehabilitation services and for services under IDEA, with 
the new statutory provisions in sections 101(a)(11) and (a)(24) of the 
Act. The new statutory provisions require formal interagency agreements 
to facilitate the transfer of responsibilities for transitioning 
students who are receiving special education services from the agency 
responsible for providing a free appropriate public education to the 
State unit responsible for providing vocational rehabilitation 
services. In addition, proposed paragraph (b) of this section 
implements the new requirement in section 101(a)(30) of the Act 
regarding the availability of vocational rehabilitation services to 
students who are individuals with 

[[Page 64485]]
disabilities and who are not in special education programs.
    Some commenters on the draft regulations viewed the required 
content of formal interagency agreements between State units and State 
educational agencies as unduly burdensome. In response, the Secretary 
proposes to amend the regulations to require that formal interagency 
agreements need only identify provisions for determining State lead 
agencies and qualified personnel responsible for transition services, 
in addition to identifying those policies and practices that can be 
coordinated between the agencies, including eligibility standards, 
referral policies, outreach procedures, and evaluation procedures. The 
formal interagency agreement may, as appropriate, identify available 
resources, the financial responsibilities of each agency, dispute 
resolution procedures, and other cooperative policies.
    Other commenters expressed concern that the draft regulations 
required State agencies to shoulder more of the responsibility for 
transitioning students than is contemplated under the Act. In response, 
the Secretary proposes to add a note in the regulations to clarify the 
roles of the rehabilitation and educational agencies in facilitating 
the transition of students who are eligible for VR services. As stated 
by the Senate Committee on Labor and Human Resources, the role of the 
State agency is primarily one of planning for the student's years after 
leaving school.

Section 361.23--Cooperation With Other Public Agencies

    This proposed section is taken from paragraphs (a), (c), and (d) of 
Sec. 361.19 of the existing regulations and has been revised to 
incorporate the new requirements in section 101(a)(11) of the Act 
regarding the content of formal interagency cooperative agreements. The 
proposed section is also reorganized to clarify that the long list of 
programs under existing Sec. 361.19(a) refers to Federal, State, and 
local public programs and agencies providing services related to the 
rehabilitation of individuals with disabilities.

Section 361.24--Coordination With the Statewide Independent Living 
Council

    This proposed new section incorporates the new requirement in 
section 101(a)(33) of the Act that the State unit coordinate and 
establish working relationships with the Statewide Independent Living 
Council and independent living centers within the State.

Section 361.25--Statewideness

    This proposed new section contains the requirement in Sec. 361.2(a) 
of the existing regulations that the State plan be in effect in all 
political subdivisions of the State.

Section 361.26--Waiver of Statewideness

    This proposed section revises Sec. 361.12 of the existing 
regulations to clarify that a waiver of statewideness is necessary if 
the State unit wants to provide through local financing increased 
services or an expanded scope of services that is different from the 
services available statewide. The procedural requirements relating to a 
request for a waiver would remain substantially the same.

Section 361.27--Shared Funding and Administration of Joint Programs

    This proposed section revises Sec. 361.11 of the existing 
regulations to clarify that these programs involve shared funding and 
administrative responsibility, that a request for the Secretary's 
approval must be included in the State plan, and that a request for 
waiver of statewideness also must be included in the State plan, if 
necessary. The proposed regulations would also remove the specific 
requirements relating to a written agreement that are in the existing 
regulations. The 1991 NPRM proposed to remove the written agreement 
requirements as part of the effort to reduce paperwork burden, and the 
requirements are omitted in this NPRM for the same reason.

Section 361.28--Third-Party Cooperative Arrangements Involving Funds 
From Other Agencies

    This proposed section revises Sec. 361.13 of the existing 
regulations to reduce the requirements related to third-party 
cooperative arrangements, including the requirements for a written 
agreement, an annual program budget, and an annual review of program 
operations. The proposed regulations would also clarify that 
applicants, as well as eligible individuals, can receive services under 
these cooperative arrangements. This section would be placed 
organizationally in the regulations next to the proposed section on 
shared funding and administration to emphasize the differences between 
joint programs and third-party cooperative arrangements.
    Some commenters on the draft regulations suggested that third-party 
cooperative arrangements be jointly administered by the State unit and 
the cooperating agency, i.e., administered in the same way as joint 
programs under proposed Sec. 361.27. In response, the Secretary notes 
that section 101(a)(2) of the Act requires the designated State unit to 
be responsible for the vocational rehabilitation program. Third-party 
cooperative arrangements provide a framework for cooperating agencies 
to provide vocational rehabilitation services and contribute to the 
State's non-Federal financial share under the program. Thus, third-
party arrangements are considered part of the vocational rehabilitation 
program for which the State unit must retain administrative 
responsibility. In contrast, State units that are parties to joint 
programs share funding and administrative responsibility with other 
agencies.
    In response to public comment on the draft regulations, the 
Secretary has clarified that services provided by the cooperating 
agency under a cooperative arrangement must either be new services that 
have a vocational rehabilitation focus or existing services that have 
been modified, adapted, expanded, or reconfigured to have a VR focus. 
These requirements are consistent with longstanding RSA subregulatory 
guidance.

Section 361.29--Statewide Studies and Evaluations

    This proposed section revises and expands Sec. 361.17 of the 
existing regulations to identify and clarify the timelines for all of 
the study and evaluation requirements, some of which are currently 
contained in other sections. It also expands the requirement in 
Sec. 361.2(a)(2)(i) of existing regulations that the State plan 
describe changes in policy resulting from the statewide studies and the 
annual evaluation to also require a description of activities 
undertaken and changes in the State plan, the strategic plan,
FR Doc. 95-30344 The State Vocational Rehabilitation Services Program
 and plan 
amendments that result from the studies and evaluations. Proposed 
paragraph (d) of this section incorporates the new requirement in 
section 105(c)(2) of the Act regarding the role of the State 
Rehabilitation Advisory Council in the preparation of the statewide 
studies and evaluation.

Section 361.30--Services to Special Groups of Individuals With 
Disabilities

    This proposed section combines Secs. 361.37 and 361.38 of the 
existing regulations regarding special services for civil employees of 
the United States and for American Indians, along with paragraph (c) of 
Sec. 361.36 of the existing regulations, which provides for special 
consideration for public safety officers. In addition, the Secretary 
proposes to clarify in this section that special consideration means 
that a public safety 

[[Page 64486]]
officer would receive priority for services over other individuals in 
the same priority category of an order of selection. The proposed 
section would also incorporate the statutory definitions of ``criminal 
act'' and ``public safety officer'' from section 7 of the Act.

Section 361.31--Utilization of Community Resources

    This proposed section is substantially the same as Sec. 361.56 of 
the existing regulations. It has been relocated to group it with other 
utilization sections in the part of the regulations that contains 
general administration requirements, rather than in the part of the 
regulations that addresses provision of services requirements.

Section 361.32--Utilization of Profitmaking Organizations for On-The-
Job Training in Connection With Selected Projects

    This proposed section revises Sec. 361.57 of the existing 
regulations to increase State unit flexibility by authorizing, rather 
than requiring, a State unit to use profitmaking organizations if it 
determines that those organizations are better qualified to provide 
needed services than nonprofit agencies, organizations, or facilities 
in the State.

Section 361.33--Utilization of Community Rehabilitation Programs

    This proposed section revises Secs. 361.21 and 361.22 of the 
existing regulations and replaces the term ``rehabilitation 
facilities'' with the term ``community rehabilitation programs,'' 
consistent with the 1992 Amendments. It also incorporates changes in 
the State plan requirements in sections 101(a)(5) and 101(a)(15) of the 
Act and new requirements in sections 101(a)(27) and 101(a)(28) of the 
Act.
    In accordance with the Department's principles for regulating, the 
Secretary proposes to eliminate current non-statutory requirements for 
a rehabilitation facilities plan and for an inventory of community 
rehabilitation programs and requirements in the draft regulations for a 
justification in the State plan for using funds for the support of 
community rehabilitation programs, including the construction of 
facilities, and for a prioritized list in the State plan of proposed 
activities. The removal of these provisions would substantially reduce 
paperwork burdens on designated State units.

Section 361.34--Supported Employment Plan

    This proposed new section incorporates sections 101(a)(25) and 
635(a) of the Act, which require a State to assure that it has an 
acceptable plan for providing supported employment services and to 
submit that plan as a State plan supplement.

Section 361.35--Strategic Plan

    This proposed new section would require that the strategic plan to 
expand and improve vocational rehabilitation services be provided as a 
supplement to the State plan. Section 101(a)(34)(A) of the Act requires 
the State plan to include an assurance that the State has a strategic 
plan to expand vocational rehabilitation services in accordance with 
Part C of Title I. In addition, section 120 of the Act requires States 
to submit their strategic plans to the Secretary prior to receiving 
funding under Part B of the Act, which includes the allotment for this 
program. The Secretary believes that requiring the strategic plan as a 
supplement to the State plan is the simplest and least burdensome 
approach.

Section 361.36--Reserved

    This section is reserved for the order of selection regulations, 
which are being implemented in a separate rulemaking document.

Section 361.37--Establishment and Maintenance of Information and 
Referral Resources

    The provision proposed in the draft regulations was substantially 
the same as Sec. 361.20 of the existing regulations. However, 
commenters on both the draft regulations and the July 16, 1993 NPRM on 
order of selection have requested that State units operating under an 
order of selection be permitted to provide non-purchased services 
(e.g., information and referral) to eligible individuals who do not 
qualify for services under the State unit's priority categories. An 
order of selection is required under section 101(a)(5)(A) of the Act if 
a State unit determines that it is unable to provide services to all 
eligible individuals who apply for services. In response to public 
comment, the Secretary proposes to address this concern by amending the 
regulations to authorize any State unit that has implemented an order 
of selection to establish an expanded information and referral program 
that includes the provision of job referral services to eligible 
individuals who are not being served under a State unit's order of 
selection, provided that certain State plan requirements are met. These 
requirements include a description in the State plan of the level of 
commitment of staff and other resources for this purpose and an 
assurance that in carrying out this program, the State unit will not 
use case services funds that are needed to provide VR services to 
eligible individuals who are able to be served under the State unit's 
order of selection.

Section 361.38--Protection, Use, and Release of Personal Information

    This proposed section is substantially the same as Sec. 361.49 of 
the existing regulations with the clarification in proposed paragraph 
(e)(3) that a State unit is required to release personal information if 
required by Federal regulations or Federal law.
    In addition, some commenters on the draft regulations expressed 
concern that the State unit could release harmful personal information 
to a representative not chosen by the applicant or eligible individual. 
In response, the Secretary has clarified that the State unit may 
release information that it determines to be harmful to the individual 
only to a third party chosen by the individual, which may include, 
among others, an advocate, a family member, or a qualified medical or 
mental health professional.
    In response to public comment on the draft regulations, the 
Secretary also proposes to amend the regulations by clarifying that 
State units shall release personal information in response to an 
``order issued by a judicial officer.'' The Secretary believes that the 
use of the term ``judicial order'' in both the current and draft 
regulations is confusing and that the clarification is necessary to 
ensure that a judge, magistrate, or other authorized judicial officer 
appropriately weighs the factors necessitating release of personal 
information against the individual's rights to privacy and protection 
from unauthorized use before ordering a State unit to release the 
information.
    In addition, the proposed section has been relocated to group it 
with other sections of the regulations that contain the administrative 
requirements since it does not relate to the provision and scope of 
services.
    While the confidentiality of personal information from applicants 
and eligible individuals under this program is considered essential to 
protect individual privacy, the Secretary specifically requests public 
comment on whether the provisions of this section are unduly burdensome 
or inconsistent with State laws governing the protection, use, or 
release of personal information.

Section 361.39--State-Imposed Requirements

    This proposed section is taken from Sec. 361.25 of the existing 
regulations. The 

[[Page 64487]]
draft regulations would have required State units to identify State-
imposed requirements at the public meetings to develop and revise the 
State plan. In response to public comment, the Secretary proposes to 
clarify this section of the regulations by requiring State units to 
identify upon request those regulations and policies relating to the 
administration or operation of the vocational rehabilitation program 
that are State-imposed. In making these changes the Secretary 
recognizes that the scope of State-imposed requirements is broader than 
those included in the State plan and that the Act requires the 
application of any State rule or policy relating to the administration 
or operation of the vocational rehabilitation program to be identified 
as a State-imposed requirement. The proposed section would require 
State units to identify those requirements upon request, including, but 
not limited to, requests made at public meetings.

Section 361.40--Reports

    This proposed section is substantially the same as Sec. 361.23 of 
the current regulations, except that it would add cross-references to 
sections 13, 14, and 101(a)(10) of the Act to distinguish the reporting 
requirements under this section from the reporting requirements related 
to statewide studies and evaluations under proposed Sec. 361.29.

Section 361.41--Processing Referrals and Applications

    This section expands Sec. 361.30 of the current regulations to 
incorporate the new statutory requirement in section 102(a)(5)(A) of 
the Act that an eligibility determination be made within 60 days of the 
date on which an application is submitted, with limited exceptions. The 
Secretary proposes to require the State unit to establish timelines for 
making good faith efforts to contact individuals who have been referred 
for services to minimize delay at the pre-application stage.
    Under the draft regulations, an individual was considered to have 
``submitted an application'' if the individual, or the individual's 
representative, as appropriate, had submitted a completed agency 
application or a signed written request for services. In an effort to 
ensure that agencies are provided with all information necessary to 
make eligibility determinations, some commenters on the draft 
regulations stated that completion of an agency application should be 
the sole method for requesting services. In contrast, other commenters 
supported the use of alternative methods for requesting services as a 
means of avoiding unnecessary delays if a particular application form 
was not used. In response, the Secretary proposes to clarify the 
regulations by interpreting the term ``submitted an application'' to 
include any request for services as long as the individual has provided 
information necessary for the DSU to initiate an assessment to 
determine eligibility and priority for services. Once an individual or 
the individual's representative, as appropriate, requests services, it 
is expected that State units will make good faith efforts to obtain 
this information as quickly as possible. For example, if a potential 
applicant has requested services in writing, the State unit may need to 
telephone the individual in order to obtain the necessary information 
in a timely manner. In addition, the proposed regulations require State 
units to make application forms readily available throughout the State.

Section 361.42--Assessment for Determining Eligibility and Priority for 
Services

    This section combines Secs. 361.31 and 361.32 of the existing 
regulations, which are the sections on eligibility and preliminary 
diagnostic study. The 1992 Amendments combined in the statute all of 
the evaluation steps that are currently required by those sections and 
by Secs. 361.33 and 361.40 of the existing regulations into one 
assessment for determining eligibility and vocational rehabilitation 
needs, which is defined in section 7(22) of the Act. The Secretary 
proposes to divide that assessment into two steps in the regulations--
an assessment for determining eligibility and priority for services, 
addressed in this section, and an assessment for determining vocational 
rehabilitation needs through the development of the IWRP, addressed by 
proposed Sec. 361.45.
    In response to public comment on the draft regulations, the 
Secretary proposes to amend this section by requiring that the 
assessment for determining eligibility and priority for services be 
conducted in the most integrated setting possible, consistent with the 
individual's needs and informed choice.
    Proposed paragraph (a) of this section incorporates the changes in 
the eligibility criteria that were made by the 1992 Amendments, 
including the presumption that an individual with an impairment that 
constitutes a substantial impediment to employment can benefit from 
vocational rehabilitation services, the presumption that Social 
Security beneficiaries meet the first two eligibility criteria, and the 
new requirement that an individual with a disability require vocational 
rehabilitation services in order to achieve an employment outcome 
consistent with the individual's strengths, resources, priorities, 
concerns, abilities, capabilities, and informed choice.
    Some commenters questioned the absence of a regulatory provision 
identifying who is qualified to determine the existence of a physical 
or mental impairment. Section 361.32 of the existing regulations 
requires that the preliminary diagnostic study, for purposes of 
determining an individual's eligibility for services, must include 
medical information and, in the case of individuals with mental and 
emotional disorders, an examination by a physician or by a licensed or 
certified psychologist. Proposed paragraph (a)(1)(i) of this section is 
based on amendments to section 103(a) of the Act, which substituted the 
standard that ``qualified personnel in accordance with State licensure 
laws'' make these determinations in lieu of particular medical 
professionals. The proposed regulatory provision broadens this concept 
to also encompass individuals who are certified under State law and 
individuals licensed or certified under State regulations. The 
Secretary believes that this broader interpretation is necessary to 
ensure that existing data and determinations made by other agencies, 
particularly education agencies, are used by DSUs in determining 
whether an individual is an individual with a disability under section 
7(8)(A) of the Act or an individual with a severe disability under 
section 7(15)(A) of the Act. Under the proposed regulations, the 
determination of who is qualified to determine the existence of an 
impairment will vary from State to State depending on State licensure 
and certification requirements. Although the proposed regulations do 
not require a medical diagnosis for a DSU to determine that an 
impairment exists, the Secretary anticipates that in most instances 
those determinations will be supported by medical documentation.
    Paragraph (a)(2) of Sec. 361.42 in the draft regulations required a 
DSU to presume that an applicant can benefit in terms of an employment 
outcome unless it determines, based on clear and convincing evidence, 
that the applicant is incapable of benefitting from VR services as a 
result of the severity of his or her disability. In response to public 
comment, the Secretary proposes to delete the phrase ``as a result of 
the severity of his or her disability'' from the NPRM in order to 
clarify that individuals may be found incapable of 

[[Page 64488]]
benefitting from VR services for reasons other than severity of 
disability. This change is consistent with section 102(a)(4)(A) of the 
Act. Nevertheless, the Secretary expects that the overwhelming majority 
of determinations under this requirement will be based on the severity 
of the individual's disability and specifically requests public 
commenters to identify reasons other than severity of disability that 
would support a determination that an individual is incapable of 
benefitting from VR services. If a determination that an individual 
cannot benefit from VR services is based on the severity of the 
individual's disability, section 102(a)(4)(B) of the Act and proposed 
paragraph (d)(1) of this section would also require the DSU to conduct 
an extended evaluation before reaching this conclusion. Finally, the 
Secretary proposes to further amend paragraph (a)(2) of this section to 
clarify that the presumption of benefit applies only to those 
applicants who meet the first two eligibility criteria.
    In response to public comment on paragraph (b)(1) of this section 
of the draft regulations, the Secretary proposes to amend the 
regulations to prohibit States from imposing any duration of residence 
requirement for the receipt of services on any applicant who is 
present, rather than resides, in the State. The amended provision 
closely tracks the statutory language of section 101(a)(14) of the Act.
    Paragraph (c) of this section incorporates the new statutory 
provisions that require the State unit to use existing data, to the 
extent possible, to determine eligibility and vocational rehabilitation 
needs.
    Some public commenters on the draft regulations inquired as to the 
scope of vocational rehabilitation services that DSUs must provide 
during an extended evaluation. In response, the Secretary proposes to 
amend the regulations to require the State unit to develop a written 
plan during the extended evaluation period for determining eligibility 
and for determining the nature and scope of services required to 
achieve an employment outcome. The provision of services under the plan 
must be limited to those services needed to make these two 
determinations. It should be noted that this change represents a 
departure from the current regulations, which required DSUs to develop 
an IWRP for individuals in extended evaluation. The Act, however, 
requires only that IWRPs be developed for eligible individuals. The 
written plan requirements of this section are, therefore, intended to 
lessen the burden on State units of developing IWRPS for individuals in 
an extended evaluation, while ensuring that the specific services to be 
provided during an extended evaluation are clearly identified.
    The proposed regulations also contain a note on clear and 
convincing evidence that is based on legislative history from the 
Senate Committee Report. In response to public comment, the Secretary 
proposes to amend the note to clarify that determinations under the 
``clear and convincing evidence'' standard must be made on a case-by-
case basis.
    Finally, the Secretary views the new eligibility criterion that an 
individual must require vocational rehabilitation services in order to 
achieve or retain an employment outcome as a limiting factor that is 
intended to screen out individuals who can prepare for, enter into, 
engage in, or retain gainful employment consistent with their 
strengths, resources, priorities, concerns, abilities, and capabilities 
without assistance from the vocational rehabilitation program. The 
proposed regulations contain a second note that provides several 
examples for guidance to State agencies regarding situations in which 
an individual may or may not require vocational rehabilitation 
services. The Secretary emphasizes that the examples are provided 
solely for the purposes of illustration, do not address all situations 
under which an individual may be eligible or ineligible for services, 
and are not intended to substitute for individual counselor judgment on 
a case-by-case basis.

Section 361.43--Procedures for Ineligibility Determination

    The Secretary proposes this new section to consolidate overlapping 
provisions relating to procedures for ineligibility determinations that 
are currently contained in several different sections of the 
regulations. Specifically, it would consolidate paragraph (e) of 
current Sec. 361.34, which contains termination provisions for an 
extended evaluation to determine rehabilitation potential, paragraph 
(c) of current Sec. 361.35, which contains the requirements for a 
certification of ineligibility, and paragraph (d) of current 
Sec. 361.40, which contains the requirements regarding review of 
ineligibility determinations.
    The Secretary proposes to require DSUs to review all ineligibility 
determinations once within 12 months unless exceptions apply. In 
response to public comment on the draft regulations, the Secretary also 
proposes to amend paragraph (d) of this section to clarify that each 
year after the initial review, DSUs must, upon request, review any 
ineligibility determination that is based on the inability of the 
individual to achieve an employment outcome.

Section 361.44--Closure Without Eligibility Determination

    The Secretary proposes to create this new section from the 
provisions contained in paragraph (e) of Sec. 361.35 of the current 
regulations, which is the section that contains the certification 
requirements. Although the certification requirements have been removed 
from the proposed regulations because they overlap with the 
documentation requirements in the case record (referred to as record of 
services in proposed Sec. 361.47), the substantive requirements related 
to closure without an eligibility determination are substantially the 
same as they are in existing Sec. 361.35(e).
    In response to public comment on the draft regulations, the 
Secretary has clarified the regulations to authorize the State unit to 
close an applicant's case if the applicant declines to participate in, 
or is unavailable to complete, an assessment for determining 
eligibility and priority for services. In either situation, the State 
unit is required to make a reasonable number of attempts to contact the 
individual or, if appropriate, the individual's representative prior to 
closing the applicant's case.

Sec. 361.45--Development of the Individualized Written Rehabilitation 
Program

    In response to public comment, this section, entitled ``Assessment 
for determining vocational rehabilitation needs'' in the draft 
regulations, has been renamed for purposes of clarification. The 
Secretary believes this proposed retitling better reflects the full 
scope of requirements under the IWRP development process, of which the 
assessment represents an essential part. The Secretary also proposes to 
clarify the purpose clause under paragraph (a) of this section for the 
same reason.
    This proposed section would combine the provisions in Secs. 361.33 
and 361.40 of the current regulations regarding thorough diagnostic 
study and IWRP procedures. It incorporates new statutory requirements 
created by the 1992 Amendments, including requirements regarding 
informed choice, integrated settings, and the use of existing data.
    Some public commenters suggested that the term ``counseling and 
guidance'' be defined in the proposed regulations. The Secretary 
declines to define the term, but proposes to revise paragraph (b)(1) of 
this section to 

[[Page 64489]]
emphasize the development of a counseling and guidance relationship 
between the vocational rehabilitation counselor and the individual 
during assessment. That relationship is intended as a means of 
fostering collaboration between the counselor and the individual in 
identifying, preparing for, and achieving meaningful vocational 
outcomes for the individual. The Secretary envisions that the 
counselor, based on his or her expertise, will provide the individual 
with comprehensive information relevant to the individual needs of the 
individual and that the counselor and individual will jointly discuss 
the values, needs, desires, and realities facing both individuals. It 
also should be noted that, in response to public comment, the Secretary 
has deleted the requirement in the draft regulations that counseling 
and guidance be provided throughout the development and implementation 
of the IWRP. As discussed in the following paragraph, IWRPs are 
developed on an individual basis, and while some individuals may 
request or require counseling and guidance services throughout the 
development and implementation of their IWRPs, others may not. By 
making this change, the Secretary emphasizes that the provision of 
counseling and guidance during the development and implementation of 
the IWRP is dependent on the particular circumstances affecting each 
individual.
    Several commenters on the draft regulations were concerned that 
this section required State units to impose strict timelines for 
developing IWRPs without considering the particular needs of the 
individual. In response, the Secretary proposes to amend the 
regulations to require State units to establish and implement standards 
for the prompt development of IWRPs, including timelines that take 
individual needs into consideration. The Secretary agrees that the 
development of the IWRP is a highly individualized process and must be 
conducted in a manner consistent with the individual's strengths, 
priorities, concerns, abilities, capabilities, and career interests. 
Nevertheless, the Secretary believes that these timelines, which are 
not absolute and operate as guidelines, are consistent with the 
legislative intent that individuals with disabilities receive services 
as quickly as possible and, therefore, are necessary to guard against 
delays in the development of the IWRP once an individual is determined 
eligible for VR services.

Section 361.46--Content of the IWRP

    This proposed section contains the IWRP content requirements, which 
are in Sec. 361.41 of the existing regulations.
    Several commenters on the draft regulations viewed certain 
requirements under this section and Sec. 361.47 (Record of services) as 
duplicative of one another and, therefore, unduly burdensome. In 
response, the Secretary proposes to reduce the paperwork requirements 
in each section of the regulations by eliminating certain requirements 
that are non-statutory or redundant. The Secretary emphasizes, however, 
that the elimination of certain documentation requirements in these 
sections is intended solely as a means of reducing paperwork burdens on 
the State unit and does not diminish the responsibility of the State 
unit to fully develop the IWRP and to be able to document or otherwise 
support its determinations affecting each individual should those 
determinations be questioned within the context of a compliance review 
or audit. Each IWRP content or record of services requirement 
eliminated from the draft regulations is, the Secretary believes, 
sufficiently addressed elsewhere in the regulations.
    For example, the Secretary proposes to delete the requirement that 
the IWRP include statements supporting the basis on which individuals 
are determined eligible or ineligible for services. The Secretary 
agrees that those statements are burdensome given comparable case 
record requirements in proposed Sec. 361.47 (a) and (b) that the State 
unit maintain documentation supporting determinations of eligibility 
and ineligibility.
    In paragraph (c) of this section, the Secretary proposes to clarify 
the regulations by consolidating the IWRP content requirements that 
relate to post-employment services.
    Some public commenters on the draft regulations suggested that the 
State unit attach the Individualized Education Plan (IEP) to the IWRP, 
rather than summarize the IEP, when coordinating with education 
agencies to serve transitioning students. In response, the Secretary 
emphasizes that the Secretary does not consider coordination between 
the IWRP and IEP to represent a documentation requirement. Rather, the 
requirement in the draft regulations that the IWRP include a summary of 
the transitioning student's IEP was intended to ensure that the State 
unit review the vocational goals, rehabilitation objectives, and nature 
and scope of services identified in the transitioning student's IEP 
during the course of developing the IWRP. Requiring that review is 
consistent with the legislative intent that State units coordinate with 
education agencies to serve transitioning students in the most 
effective and efficient manner possible. In an effort to clarify the 
regulations, however, the Secretary proposes to amend this section to 
require the State unit to ensure that the transitioning student's IWRP 
is consistent with the student's IEP in terms of goals, objectives, and 
services. Although the IWRP need not include a summary or an attached 
copy of the IEP, it is expected that, for transitioning students, State 
units will closely review the IEP in the course of IWRP development. In 
addition, the Secretary proposes to amend Sec. 361.47(f) to require the 
State unit to maintain documentation from the needs assessment to 
support the goals, objectives, and services identified in the IWRP and 
in the IEP of transitioning students.
    Finally, in response to public comment, the Secretary proposes to 
add paragraph (e) to this section to require State units to ensure that 
a determination that an individual is ineligible for services after an 
IWRP has been developed is made in accordance with the procedures in 
proposed Sec. 361.43 and is included as an amendment to the IWRP.

Section 361.47--Record of Services

    This proposed section revises Sec. 361.39 of the existing 
regulations. References to the ``case record'' would be replaced with 
the term ``record of services'' to discourage characterizing 
individuals with disabilities as ``cases.'' The proposed section would 
incorporate the choice and integration requirements in the 1992 
Amendments.
    As previously discussed, the Secretary has significantly revised 
this section to reduce paperwork requirements in response to commenters 
on the draft regulations who viewed many of the record of services 
requirements as unduly burdensome or duplicative of other requirements 
in the regulations.
    In response to public comment, the Secretary proposes to simplify 
paragraphs (a) and (b) of this section to require State units to 
maintain documentation to support determinations of eligibility or non-
eligibility made in accordance with proposed Sec. 361.42 or 
Sec. 361.43. The Secretary also proposes to require State units to 
include, as part of an individual's record, documentation supporting 
the determination that an individual has a severe or most severe 
disability. This requirement is 

[[Page 64490]]
particularly important to support an individual's receipt of services 
from a State unit operating under an order of selection or to support 
the individual's placement in a supported employment setting. In 
addition, this requirement is consistent with the intent of the Act to 
expand and improve services to individuals with the most severe 
disabilities.
    In paragraph (d) of this section, the Secretary proposes to 
simplify the requirements relating to extended evaluations by requiring 
State units to maintain documentation to support the need for an 
extended evaluation and to support the periodic assessments conducted 
during the extended evaluation. Documentation maintained under this 
paragraph would also include the written plan developed during the 
extended evaluation in accordance with Sec. 361.42(d)(3).
    In an effort to better coordinate rehabilitation services for 
transitioning students, the Secretary also proposes to amend paragraph 
(f) of this section to specify that the State unit must document the 
development of the individual's long-term vocational goal, intermediate 
rehabilitation objectives, and nature and scope of services, as 
identified in the transitioning student's IWRP and IEP.
    Finally, the Secretary proposes to delete a number of requirements 
from the draft regulations on the basis that the requirements are 
unduly burdensome or unnecessarily duplicative of other provisions in 
the regulations. For example, because the IWRP is included as part of 
the individual's record of services that must be maintained under this 
section, requirements that are duplicative of IWRP content requirements 
in proposed Sec. 361.46 have been deleted from the record of services. 
For each record of services requirement that the Secretary considers 
duplicative of other requirements in the regulations, specific 
references to those other requirements are provided.
    Accordingly, the Secretary proposes to delete the following 
documentation requirements from this section of the draft regulations: 
(1) Documentation of the manner in which the individual was provided 
information necessary to make informed choices as to vocational goals, 
rehabilitation services, and service providers (addressed by 
Sec. 361.46(a)(6) and Sec. 361.52). (2) Documentation of the manner in 
which the individual was provided information regarding the level of 
integration of service provision and job placement options (addressed 
by Sec. 361.46(a)(7)(iii) and Sec. 361.52). (3) Documentation 
supporting the determination that the clinical status of the individual 
is stable or slowly progressive if physical and mental restoration 
services are provided (addressed by Sec. 361.46(a)(3)). (4) 
Documentation to support any decision to provide services to family 
members (addressed by Sec. 361.46(a)(3)). (5) Documentation relating to 
the individual's participation in the cost of any vocational 
rehabilitation services, the eligibility of the individual for any 
comparable services and benefits, and the availability and use of those 
comparable service and benefits (addressed by Sec. 361.46(a)(7)). (6) 
Documentation that the individual has been advised of the 
confidentiality of all information pertaining to the individual and 
that any information about the individual has been released with the 
individual's informed written consent (addressed by Sec. 361.46(a)(7) 
and Sec. 361.38). (7) Documentation of any plans to provide post-
employment services after the employment outcome has been achieved 
(addressed by Sec. 361.46(c)). (8) Documentation of any review of the 
determination that an individual is no longer capable of achieving an 
employment outcome after services under an IWRP have already been 
provided (addressed by Sec. 361.43(d)).
    The Secretary is particularly interested in public comment on 
whether the proposed provisions cover all key decision points in the 
rehabilitation process for which documentation is needed.

Section 361.48--Scope of Vocational Rehabilitation Services for 
Individuals With Disabilities

    This proposed section revises Sec. 361.42 of the existing 
regulations.
    The phrase ``counseling and guidance'' in the current regulations 
has been changed in proposed Sec. 361.48(a)(3) to ``vocational 
counseling and guidance'' in order to clarify that counseling and 
guidance services that are provided as discrete vocational 
rehabilitation services are vocational in nature and specifically 
designed to assist the individual in reaching an employment outcome. 
Vocational counseling and guidance is, therefore, distinguishable from 
the more generalized counseling and guidance that an individual may 
need at any point during the rehabilitation process in connection with 
the provision of services.
    A number of paragraphs from the current regulatory section have 
been revised to remove definitional text, and definitions for those 
services have been added to proposed Sec. 361.5. For example, proposed 
Sec. 361.48(a)(5), providing for physical and mental restoration 
services, has been revised to remove all definitional material, which 
is now in proposed Sec. 361.5(b)(35). Proposed paragraph (a)(7) of this 
section, providing for maintenance, has been modified to remove the 
current regulatory provisions that describe maintenance in terms of 
subsistence or basic living expenses, and a proposed definition of 
maintenance has been included in proposed Sec. 361.5(b)(31) to clarify 
that maintenance costs are those expenses that are in excess of normal 
living expenses and that are necessitated by participation in a 
vocational rehabilitation program. Similarly, proposed paragraph (a)(8) 
of this section provides for transportation in connection with the 
rendering of any vocational rehabilitation service, and a definition of 
transportation has been added to proposed Sec. 361.5(b)(49), which 
clarifies that transportation must be necessary to enable an applicant 
or eligible individual to participate in a program of vocational 
rehabilitation services. This change was proposed in the 1991 NPRM.
    Proposed paragraph (a)(9) of this section clarifies that the 
services available to family members are vocational rehabilitation 
services necessary to enable the applicant or eligible individual to 
achieve an employment outcome.
    Some commenters on the draft regulations requested that the 
provision of ``note-taking services'' not be limited to individuals who 
are deaf or blind. In response, the Secretary agrees that note-taking 
services should be available to any eligible individual in need of 
those services to achieve an employment outcome. Therefore, the 
Secretary proposes to delete ``note-taking'' from proposed paragraphs 
(a)(10) and (a)(11) of this section and emphasizes that these services 
are available under proposed paragraph (a)(20) of this section as 
``other services'' whenever necessary for an eligible individual to 
achieve an employment outcome.
    Proposed paragraph (a)(13) of this section, which provides for job 
search, placement assistance, and job retention services, clarifies the 
scope of services currently available under existing paragraph (a)(12) 
of Sec. 361.42, which provides for placement in suitable employment. 
Proposed paragraphs (a)(14) and (a)(15) of this section incorporate new 
requirements in the statute for supported employment and personal 
assistance services. Proposed paragraph (a)(16) of this section revises 
the paragraph in the existing regulations on post-employment services 
by 

[[Page 64491]]
referring to the proposed definition of post-employment services in 
Sec. 361.5(b)(37). That definition incorporates the language in the 
1992 Amendments regarding advancement in employment and individual 
choice. Finally, proposed paragraph (a)(18) of this section revises the 
paragraph in the existing regulations on rehabilitation engineering 
services, consistent with the 1992 Amendments, to provide for 
rehabilitation technology services.

Section 361.49--Scope of Vocational Rehabilitation Services for Groups 
of Individuals With Disabilities

    This proposed section would consolidate provisions from several 
sections of the existing regulations, including the definition of 
vocational rehabilitation services for the benefit of groups of 
individuals in Sec. 361.1(c) of the existing regulations and 
Secs. 361.50, 361.51, 361.52, and 361.53 of the existing regulations. 
In addition, it would incorporate new requirements imposed by the 1992 
Amendments, such as replacing the concept of the ``establishment of a 
rehabilitation facility'' with the concept of the ``establishment, 
development, or improvement of a public or other nonprofit community 
rehabilitation program,'' restricting the construction of a 
rehabilitation facility to special circumstances, and adding the newly 
authorized service of technical assistance and support services for 
businesses that are not subject to the Americans with Disabilities Act 
and are seeking to employ individuals with disabilities.
    In response to public comment on the draft regulations, the 
Secretary proposes to amend paragraph (a)(5) of this section to clarify 
that the establishment of small business enterprises operated by 
individuals with the most severe disabilities under the State unit's 
supervision includes vending facilities established under the Randolph-
Sheppard program. In addition, the Secretary proposes to amend this 
paragraph to clarify that management services and supervision in 
support of a small business enterprise may be provided by the State 
unit beyond the initial establishment period of six months. The 
Secretary also proposes to clarify the draft regulations to state that 
initial stock and supplies and operational costs for small business 
enterprises may be provided only during the initial six-month 
establishment period. These changes are consistent with section 
103(b)(1) of the Act, as well as with the Randolph-Sheppard Act and its 
implementing regulations in 34 CFR Part 395.

Section 361.50--Written Policies Governing the Provision of Services

    This section contains material from paragraph (b) of Sec. 361.42 of 
the existing regulations, which requires written State policies on the 
scope of vocational rehabilitation services for individuals, and 
Sec. 361.44 of the existing regulations, which is the section on 
authorization of services. The Secretary proposes to require that a 
State unit have policies regarding the provision of services for groups 
of individuals with disabilities, as well as the availability of 
services for individuals with disabilities.
    In the draft regulations, this proposed section incorporated new 
provisions, based on existing policy and subregulatory guidance, to 
clarify that no absolute caps or limits, in terms of location, cost, or 
duration, could be placed on the availability of services that would 
effectively deny an individual a necessary service. Although these 
provisions are maintained in the proposed regulations, some public 
commenters were concerned that insufficient emphasis was placed on the 
requirement that policies governing the provision of services must be 
designed to meet the rehabilitation needs of each individual served by 
the State unit. In response, the Secretary proposes to amend the 
regulations to specify that the policies required to be developed under 
this section must ensure that the provision of services is based on the 
individual's rehabilitation needs as identified in the IWRP. As in the 
draft regulations, the proposed section would also prohibit State units 
from arbitrarily limiting the nature or scope of vocational 
rehabilitation services needed by any eligible individual to achieve an 
employment outcome.
    Some commenters on the draft regulations opposed the ability of 
State units to establish preferences for in-State services on the basis 
that those preferences are inconsistent with principles of individual 
choice. In response, the Secretary proposes to amend the regulations to 
permit individuals to choose out-of-State services over in-State 
services. However, if an individual selects an out-of-State service at 
a higher cost than an in-State service, if either service would meet 
the individual's rehabilitation needs, the designated State unit would 
be required to pay only an amount equal to the cost of the in-State 
service.
    The draft regulations would have required State units to provide 
written authorization of services either before or at the same time as 
the purchase of services, except in emergency situations when oral 
authorization, followed by prompt written confirmation, was permitted. 
In response to those commenters on the draft regulations who believed 
that the State unit should have greater flexibility in developing 
policies governing the authorization of services to individuals, the 
Secretary proposes to simplify the regulations to require State units 
to establish policies related to the timely authorization of services, 
including conditions under which verbal authorization can be given.

Section 361.51--Written Standards for Facilities and Providers of 
Services

    This proposed section would incorporate Sec. 361.45 of the existing 
regulations, would expand the requirement for standards to ensure 
accessibility of facilities, and would require new standards regarding 
qualified personnel and fraud, waste, and abuse, consistent with the 
1992 Amendments.
    In response to public comment on the draft regulations, the 
Secretary interprets the accessibility of facilities requirement 
broadly so as not to prevent any individual with a disability, 
including the multi-chemically disabled, from receiving services at a 
facility. In response to public comment, the Secretary also proposes to 
amend the qualified personnel requirements in paragraph (b)(1) of this 
section to reflect the personnel standards included in the State 
agency's comprehensive system of personnel development under section 
361.18(c).

Section 361.52--Opportunity To Make Informed Choices Regarding the 
Selection of Services and Providers

    This proposed new section would implement section 12(e)(1) of the 
Act, which was added by the 1992 Amendments and requires the Secretary 
to promulgate regulations establishing criteria pertaining to the 
selection of vocational rehabilitation services and providers by an 
individual with a disability.
    In response to public comment on the draft regulations, the 
Secretary proposes to amend this section of the regulations to clarify 
that the concept of informed choice applies to all aspects of the 
vocational rehabilitation process, including the selection of 
vocational goals, intermediate objectives, VR services, and service 
providers. This provision is closely related to the requirement in 
proposed Sec. 361.46(a)(6) that the IWRP include a statement from the 
individual describing the manner in which the individual exercised 
informed choice in selecting among 

[[Page 64492]]
alternative goals, objectives, services, providers, and methods used to 
procure or provide services. The proposed regulations also would 
require that the State unit consult with its State Rehabilitation 
Advisory Council, if it has one, when developing its policies for 
facilitating informed choice.
    Several commenters opposed the requirement in the draft regulations 
that State units develop indicators regarding the quality of service 
providers on the basis that such a requirement is overly burdensome and 
likely to lead to disputes, and potentially litigation, between State 
units and providers of VR services. In response, the Secretary proposes 
to amend the regulations to require State units to provide individuals, 
or assist individuals in acquiring, information necessary to make an 
informed choice about the specific services, including the providers of 
those services, that are needed to achieve the individual's vocational 
goal. Thus, it is expected that State units will provide, or facilitate 
access to, information concerning cost and accessibility of services, 
level of consumer satisfaction with services, qualifications of service 
providers, and other information necessary to enable the individual to 
make an informed choice among alternative services and providers.
    It should also be noted that in response to public comment and in 
the interest of reducing the burden on State units, the proposed 
regulations would not require DSUs to provide a list of available 
services and the potential providers of those services to each 
individual. Lists of this type, as well as resource materials such as 
consumer satisfaction surveys, are, however, included in the 
regulations as examples of possible sources of information that may be 
used by DSUs to satisfy the information requirements of this section.

Section 361.53--Availability of Comparable Services and Benefits

    This proposed section revises Sec. 361.47(b) of the existing 
regulations.
    As provided for in the draft regulations, the availability of 
comparable services and benefits is based on whether services and 
benefits exist under another program for the individual and whether the 
individual is eligible for those services or benefits. However, the use 
of comparable services and benefits under the draft regulations was 
dependent upon whether the comparable services and benefits were 
``currently available'' to the individual. In response to public 
commenters who expressed confusion as to the meaning of this phrase, 
the Secretary proposes to delete the word ``currently'' from this 
section and to amend the regulations to require DSUs to use comparable 
services and benefits if available to the eligible individual within a 
reasonable period of time that is appropriate for the achievement of 
the intermediate rehabilitation objectives identified in the 
individual's IWRP. What constitutes a reasonable period of time would 
vary according to the services identified in each individual's IWRP. By 
making this change, the Secretary emphasizes that the use of comparable 
services and benefits should not unreasonably delay the individual in 
meeting his or her rehabilitation objectives.
    In the event comparable services and benefits exist but are not 
available to the individual within a reasonable period of time, the 
proposed regulations would require the State unit to provide VR 
services during the interim period until they become available. In an 
effort to respond to public comment and reduce the burden on DSUs, the 
Secretary proposes to delete the requirement in the draft regulations 
that State units obtain reimbursement for any overlap in benefits once 
the comparable services and benefits become available.
    In response to public comment on the draft regulations, the 
Secretary also proposes to revise the regulations to clarify that a 
determination as to the availability of comparable services and 
benefits is not required in connection with the provision of those 
services listed under paragraph (b) of this section. Although DSUs are 
free to provide these services without pursuing the availability of 
comparable services and benefits, the Secretary encourages State units 
to use known comparable services and benefits whenever possible in 
order to maximize the use of funds provided under this program.
    In response to public comment on the draft regulations, the 
Secretary also proposes to amend paragraph (b) of this section by 
including taped texts and computer accessible formats (sometimes 
referred to as E-text) among those services for which comparable 
services and benefits do not need to be sought. This addition is 
consistent with the Act's legislative history, specifically Conference 
Report No. 102-973.

Section 361.54--Participation of Individuals in Cost of Services Based 
on Financial Need

    This proposed section is taken from Sec. 361.47(a) of the existing 
regulations. It would clarify the requirements that a State unit must 
meet if it chooses to consider the financial need of individuals to 
determine the extent of their participation in the cost of vocational 
rehabilitation services. The Secretary proposes to clarify the draft 
regulations to require State units to ensure that its policies 
governing financial need be applied uniformly to all individuals in 
similar circumstances. The Secretary interprets this provision, which 
is modeled after existing regulations, to require a State unit to apply 
its financial needs test to each individual in need of a service 
covered by the test without regard to the type of the individual's 
disability. The proposed regulations would also clarify that this 
uniform application requirement does not prohibit setting different 
levels of need for different geographic regions in the State, but 
requires uniform application of the standard to all individuals within 
each geographic region or to all individuals within the State if the 
State unit does not establish geographical differentials. Finally, the 
proposed regulations would clarify that the level of an individual's 
financial participation in the cost of VR services must be reasonable, 
based on the individual's financial need and ability to pay, and must 
not be so high as to effectively deny the individual a necessary 
service.

Section 361.55--Review of Extended Employment in Community 
Rehabilitation Programs or Other Employment Under Section 14(c) of the 
Fair Labor Standards Act

    This proposed section is taken, in part, from Sec. 361.58 of the 
existing regulations. In addition to the review of extended employment 
outcomes, the 1992 Amendments require the review of employment outcomes 
in which the individual is compensated in accordance with section 14(c) 
of the Fair Labor Standards Act to determine the individual's needs and 
interests related to competitive employment. This section would also 
incorporate the emphasis in the 1992 Amendments on employment and 
training in integrated settings and would elaborate on the meaning of 
the ``maximum effort'' required of State units in the existing 
regulations to clarify that State units are required to provide 
services to promote movement from extended employment to integrated 
employment.

Section 361.56--Individuals Determined To Have Achieved an Employment 
Outcome

    This proposed section, which has been renamed to conform to the 
changes discussed in the following paragraphs, is taken from 
Sec. 361.43 of the existing regulations. It has been revised to make 
the requirements in the current 

[[Page 64493]]
regulations more outcome-oriented, rather than process-oriented, and to 
incorporate the new statutory emphases on choice and integrated 
settings.
    In an effort to better reflect whether an individual has 
successfully achieved an employment outcome, the draft regulations 
would have extended the period for which an employment outcome must be 
maintained from 60 to 180 days. Several commenters, however, opposed 
the 180-day standard as unduly burdensome and inconsistent with 
individual choice. Some commenters believed that the standard for 
closing an individual's case should be based on the particular 
circumstances of the individual's employment situation, while others 
indicated that the determination as to whether the individual is 
successfully employed should be made jointly by the individual, the 
rehabilitation counselor or coordinator, and, in some cases, the 
employer. In response to these comments and to the views expressed by 
members of the focus group that discussed this issue, the Secretary 
proposes to delete the draft requirement that an employment outcome 
must be maintained for 180 days. In its place, the Secretary proposes a 
standard under which the individual must maintain the employment 
outcome for the duration of any probationary period that the employer 
has established for its employees, or, if the employer does not have an 
established probationary period, for a period of at least 90 days. In 
addition, the individual and the rehabilitation counselor or 
coordinator must agree that the employment outcome is satisfactory and 
that the individual is performing well on the job. Like the draft 
regulations, this section would also require the State unit to assure 
that the employment outcome is in the most integrated setting possible 
and is consistent with the individual's abilities, capabilities, 
interests, and informed choice. Finally, in response to public comment, 
the Secretary proposes to amend this section to require that the 
provision of services under the individual's IWRP contribute to, rather 
than result in, the achievement of the employment outcome.
    The proposed standard, like that in the draft regulations, is 
intended to strengthen the current minimum 60-day standard for 
maintaining a job placement in an effort to better reflect whether an 
individual has, in fact, successfully achieved an employment outcome. 
The Secretary agrees with those commenters who suggested that 
achievement of an employment outcome should be based, in part, on the 
stability of the individual's employment. In addition, the proposed 
changes from the current regulations are also intended to condition the 
achievement of an employment outcome on the satisfaction of the 
individual, the counselor, and the employer. The Secretary believes 
that the best measure of an employer's satisfaction with an 
individual's job performance is whether the individual has met the 
employer's probationary period. For those individuals whose employers 
have not established a customary probationary period, the Secretary 
views the 90-day minimum as an adequate safeguard to ensure that the 
individual is performing well and is likely to maintain the employment 
outcome. Consistent with the Act's emphasis on informed choice, the 
proposed regulations would also base the decision that an individual 
has achieved an employment outcome on the individual's, as well as the 
counselor's or coordinator's, satisfaction with the employment outcome. 
The Secretary emphasizes that a satisfactory employment outcome, at a 
minimum, must meet the provisions of this section, and the Secretary is 
particularly interested in public comment concerning whether further 
standards for defining ``satisfactory'' should be developed at the 
Federal level.
    The Secretary is continuing to consider issues concerning outcome 
measures for the vocational rehabilitation program, including the 
proposed time standard in these regulations for maintaining a job 
placement in order to achieve an employment outcome (the duration of 
the employer's probationary period or, in the absence of an employer 
policy in this area, at least 90 days). The Secretary believes that the 
high level of Federal funding for this program--over 78 percent--
warrants close attention to accountability measures to ensure that 
employment outcomes are maintained over time. The Secretary is 
particularly interested in receiving comments on whether the proposed 
job retention standard is strong enough to achieve this result.
    The Secretary is also interested in receiving comments about the 
relationship between closure requirements for the vocational 
rehabilitation program and other programs, including those under the 
Job Training Partnership Act (13 weeks), the Social Security 
beneficiary rehabilitation program (9 months of substantial gainful 
activity), and other State manpower development and job training 
programs. Finally, the Secretary is interested in comments on the 
impact of the proposed new employment outcome standard and whether, in 
comparison to the current standard, it would likely increase or 
decrease the number of individuals with disabilities achieving long-
term employment outcomes.

Section 361.57--Review of Rehabilitation Counselor and Coordinator 
Determinations

    This proposed section is taken from Sec. 361.48 of the existing 
regulations.
    In accordance with the Department's principles for regulating, the 
Secretary proposes to delete all non-statutory timelines from this 
section of the draft regulations. In place of specific time limits, the 
proposed regulations would require each DSU, in consultation with its 
State Rehabilitation Advisory Council, if it has one, to develop 
reasonable timelines for key stages of the appeal process to ensure 
that appeals are handled promptly. Specifically, DSU's would be 
required to develop timelines to ensure that hearings are held within a 
reasonable time after an individual's request for review, that the 
initial decision of the impartial hearing officer is rendered within a 
reasonable time after the hearing is completed, and that the final 
decision of the DSU director is rendered within a reasonable time after 
notifying the individual of the director's intent to review the initial 
decision. These changes are intended to provide DSU's with increased 
flexibility to develop appropriate timelines, while protecting 
individuals against unreasonable delays in the review process. Like the 
current regulations, this proposed provision also would permit a DSU to 
establish an informal process to resolve a request for review without 
conducting a formal hearing, but would require the DSU to conduct a 
hearing within the relevant State-developed timeline if informal 
resolution is unsuccessful. The Secretary particularly requests public 
comment on whether a specific overall time limit for completing the 
entire formal review process (e.g., 125 days) should be required under 
the regulations.
    This section would incorporate the requirement in the 1992 
Amendments that prohibits the State unit from instituting a suspension, 
reduction, or termination of services pending a final State hearing 
determination unless the agency has evidence that the services were 
obtained through fraud, misrepresentation, collusion, or criminal 
conduct on the part of the individual, or the individual so requests. 
The Secretary interprets this provision to mean that services may be 
suspended, reduced, or terminated 

[[Page 64494]]
pending a final determination if there is ``substantial evidence'' of 
that conduct.
    This proposed section also incorporates the requirement in the 1992 
Amendments that the director not overturn or modify the decision of an 
impartial hearing officer unless the director concludes, based on clear 
and convincing evidence, that the decision of the impartial hearing 
officer is clearly erroneous because it is ``contrary to Federal or 
State law, including policy.'' The Secretary interprets this statutory 
language to include a decision that is contrary to the approved State 
plan, the Act, or Federal or State vocational rehabilitation 
regulations or policy.
    It should be noted that the Secretary has changed the term 
``calendar day'' from the draft regulations to ``day'' in the proposed 
regulations in response to public commenters who inquired as to the 
difference in meaning between the two terms. Procedural time limits in 
this section and throughout the regulations are, therefore, measured in 
terms of ``days,'' which the Secretary intends to mean ``calendar 
days'' rather than ``working days.''
    Finally, in response to public comment on the draft regulations, 
the Secretary proposes to add to paragraph (f) of this section a 
requirement that the DSU inform applicants and eligible individuals of 
the manner in which it selects impartial hearing officers.

Section 361.60--Matching Requirements

    This proposed new section would clarify the matching requirements 
by consolidating all of the Federal and non-Federal share provisions. 
Proposed paragraph (a) of this section contains the general Federal 
share provision, which is in Sec. 361.86(a) of the existing regulations 
and was revised by the 1992 Amendments to be 78.7 percent. Proposed 
paragraph (a) of this section also contains the 50 percent Federal 
share provision for construction projects, which is in Sec. 361.74(b) 
of the existing regulations, and the 90 percent Federal share provision 
for innovation and expansion grant activities, which is addressed in 
Sec. 361.153 of the existing regulations.
    In accordance with the Department's principles for regulating, the 
Secretary proposes to simplify the requirements relating to the non-
Federal share in the draft regulations by removing from the regulations 
a list of permissible sources of expenditures to meet the non-Federal 
share and instead cross-referencing the applicability of the matching 
or cost sharing requirements in 34 CFR 80.24 of EDGAR with certain 
exceptions. The proposed regulations would specify that third party in-
kind contributions, which are a permissible source of matching funds 
under EDGAR, may not be used as part of the non-Federal share under the 
VR program. In addition, the proposed regulations would continue, but 
clarify, existing regulatory requirements that prohibit earmarked 
donations that benefit the donor from being used to meet the non-
Federal share. The Secretary wishes to emphasize that the changes 
proposed with regard to meeting the non-Federal share would not 
prohibit the use of any funding sources that are currently allowable.

Section 361.61--Limitation on Use of Funds for Construction 
Expenditures

    This proposed new section sets out in a separate section the 
requirement in paragraph (d) of Sec. 361.85 of the existing regulations 
that no more than 10 percent of a State's allotment may be used for 
construction.

Section 361.62--Maintenance of Effort Requirements

    This proposed section is taken from Sec. 361.86 of the existing 
regulations. It incorporates provisions in the 1992 Amendments, which 
changed the standard on which the maintenance of effort level is based 
from the average of the three prior fiscal years to the second prior 
fiscal year. It also folds into the same section a separate maintenance 
of effort requirement relating to the construction of facilities that 
is contained in both Sec. 361.52(e) and Sec. 361.85(d) of the existing 
regulations. This proposed section clarifies the procedures the 
Secretary follows for determining whether maintenance of effort 
requirements have been met and for reducing the amount payable in the 
case of a maintenance of effort deficit if there is a separate State 
agency for vocational rehabilitation services for individuals who are 
blind.

Section 361.63--Program Income

    This proposed new section consolidates in one place all of the 
provisions related to program income. Proposed paragraph (a) of this 
section incorporates the definition of program income from EDGAR (34 
CFR 80.25(b)). Proposed paragraph (b) of this section incorporates 
existing subregulatory guidance regarding the sources of program 
income. Proposed paragraph (c)(1) of this section incorporates the 
general EDGAR requirement that program income must be used in the 
program in which it is earned, but makes an exception for Social 
Security reimbursements as provided in section 108 of the Act. Proposed 
paragraph (c)(1) of this section would clarify that program income is 
considered earned when it is received.
    In response to public comment on the draft regulations, the 
Secretary proposes to delete from proposed paragraph (c)(3)(ii) of this 
section the requirement that the State notify the Secretary prior to 
using the deduction method for accounting for program income. By 
removing this condition, the Secretary emphasizes that the State is 
free either to use program income to expand its vocational 
rehabilitation program or to deduct it from its total allowable costs, 
without seeking prior Federal approval.
    Proposed paragraph (c)(4) of this section would clarify that 
program income may not be used to meet the non-Federal share 
requirement.

Section 361.64--Obligation of Federal Funds and Program Income

    This proposed new section incorporates the amendment to section 19 
of the Act, which clarifies that both Federal funds, including 
reallotted funds, and program income from all sources may be carried 
over for obligation from the year in which the funds are received until 
the end of the following year.
    In response to public comments on the draft regulations, the 
Secretary proposes to amend paragraph (b) of this section to clarify 
that the State unit may carry over any portion of unobligated Federal 
funds that it has matched by obligating non-Federal funds during the 
fiscal year for which the Federal funds were appropriated. This 
clarification is consistent with section 19 of the Act, which allows 
for carryover of Federal funds ``to the extent'' that recipients comply 
with Federal share requirements.

Section 361.65--Allotment and Payment of Federal Funds for Vocational 
Rehabilitation Services

    This proposed section is taken from Secs. 361.85 and 361.87 of the 
existing regulations.

Section 361.70--Purpose of the Strategic Plan

    This proposed section implements new section 120 of the Act, which 
makes grants under Part B of the Act, as well as innovation and 
expansion grants under Part C of the Act, contingent on the preparation 
and submission of a statewide strategic plan.

Section 361.71--Procedures for Developing the Strategic Plan

    This proposed new section implements new section 122 of the Act, 
which requires the State to hold public forums and meet with members of 
the 

[[Page 64495]]
State Rehabilitation Advisory Council and the Statewide Independent 
Living Council prior to developing the strategic plan. The Secretary 
interprets the public forum requirement in the statute to require the 
same procedures for public input on the strategic plan that are 
required for the development of the State plan under Sec. 361.20 of the 
proposed regulations.

Section 361.72--Content of the Strategic Plan

    This proposed new section incorporates the new requirements in 
section 121 of the Act with no substantive changes.

Section 361.73--Use of Funds

    This proposed new section incorporates the requirements in new 
sections 101(a)(34)(B) and 123 of the Act. The Secretary interprets 
101(a)(34)(B) to require that at least 1.5 percent of the funds 
received under Part B of the Act be used for the activities identified 
in section 123. The Secretary has clarified that all funds received 
under Part C of the Act must be used for activities identified in a 
State's strategic plan, which may include, but are not limited to, the 
activities identified in section 123 of the Act.

Section 361.74--Allotment of Federal Funds

    This proposed new section incorporates by reference the 
requirements of new section 124 of the Act without substantive change.

Executive Order 12866

1. Assessment of Costs and Benefits

    These proposed regulations have been reviewed in accordance with 
Executive Order 12866. Under the terms of the order the Secretary has 
assessed the potential costs and benefits of this regulatory action.
    The potential costs associated with the proposed regulations are 
those resulting from statutory requirements and those determined by the 
Secretary to be necessary for administering this program effectively 
and efficiently. Burdens specifically associated with information 
collection requirements, if any, are identified and explained elsewhere 
in this preamble under the heading Paperwork Reduction Act of 1995.
    In assessing the potential costs and benefits--both quantitative 
and qualitative--of these proposed regulations, the Secretary has 
determined that the benefits of the proposed regulations justify the 
costs. A further discussion of the potential costs and benefits of 
these proposed regulations is contained in the summary at the end of 
this section of the preamble.
    The Secretary has also determined that this regulatory action does 
not unduly interfere with State, local, and tribal governments in the 
exercise of their governmental functions.
    To assist the Department in complying with the specific 
requirements of Executive Order 12866, the Secretary invites comment on 
whether there may be further opportunities to reduce any potential 
costs or increase potential benefits resulting from these proposed 
regulations without impeding the effective and efficient administration 
of the program.
    Summary of potential benefits relative to potential costs of the 
regulatory provisions discussed previously in this preamble:
    The Secretary believes that the NPRM would substantially improve 
The State VR Services Program and would yield substantial benefits in 
terms of program management, efficiency, and effectiveness. The 
Secretary also believes that the proposed regulations represent the 
least burdensome way to implement the 1992 Amendments to Title I of the 
Act and fulfill important policy objectives that the Secretary 
considers essential to the success of the program. As stated previously 
in this preamble, the NPRM has been revised consistent with the 
Department's principles for regulating, which were developed during the 
Administration's regulatory reinvention initiative, to further reduce 
paperwork or process requirements and to enhance the flexibility of 
DSUs to meet non-statutory requirements. Increased flexibility of DSUs 
and other benefits resulting from the proposed regulations are 
discussed in the following paragraphs of this section and throughout 
the section-by-section summary of the preamble.
Improved Organization of Regulations
    The NPRM would substantially reorganize and clarify the current 
program regulations in order to make the regulations easier to 
understand and more useful. In response to requests from members of the 
vocational rehabilitation community, the proposed regulations also 
would include definitions of a number of previously undefined terms, 
including ``comparable services and benefits,'' ``maintenance,'' and 
``post-employment services.''
Notes and Examples
    The Secretary has provided additional clarifying information in the 
proposed regulations through the use of notes and examples. Many 
commenters to the draft regulations stated that they find this 
information more accessible and more useful when it is included in the 
regulations rather than issued separately by RSA as subregulatory 
guidance. As stated previously throughout this preamble, the Secretary 
emphasizes that the limited notes and examples in the proposed 
regulations are purely illustrative and are not intended to restrict 
State flexibility.
Reduction of Grantee Burden
    Non-statutory paperwork requirements have been eliminated or 
consolidated throughout the NPRM in an effort to reduce the regulatory 
burden on States. For example, previously duplicative requirements 
under Sec. 361.46 (Content of the IWRP) and Sec. 361.47 (Record of 
services) have been consolidated to reduce the paperwork burden on 
States and to ensure efficient administration of the program. A list of 
other sections in which paperwork burden on grantees has been removed 
or reduced in response to public comment on the draft regulations 
precedes the section-by-section summary in this preamble. Also, 
additional burden-reducing steps taken by the Secretary in accordance 
with the Department's principles for regulating are explained 
throughout the section-by-section summary in the preamble. For example, 
the proposed deletion of the requirement that the State plan describe 
the organizational structure of the State agency and its organizational 
units is discussed under Sec. 361.13 (State agency for administration) 
in the section-by-section summary. Those paperwork requirements that 
would remain in the proposed regulations are considered essential to 
the proper administration of the program.
Enhanced Protections for Individuals With Disabilities
  
FR Doc. 95-30344 The State Vocational Rehabilitation Services Program
  The proposed regulations include provisions intended to ensure that 
individuals with disabilities are not improperly denied necessary VR 
services. In particular, Sec. 361.50 (Written policies governing the 
provision of services) would require DSUs to ensure that the provision 
of VR services for an eligible individual is based on the individual's 
particular rehabilitation needs and would prevent DSUs from arbitrarily 
limiting the nature or scope of vocational rehabilitation services 
needed by any eligible individual to achieve an employment outcome. In 
addition, Sec. 361.54 (Participation of individuals in cost of services 
based on financial need) would require DSUs to 

[[Page 64496]]
apply a State financial needs test to each individual in need of a 
service covered by the test without regard to type of disability. This 
section would also require DSUs to ensure that the level of an 
individual's financial participation in the cost of VR services is 
reasonable, based on the individual's ability to pay, and not so high 
as to effectively deny the individual a necessary service.
Increased Flexibility of Grantees to Satisfy Statutory Requirements
    A number of provisions in the proposed regulations have been 
revised in an effort to enhance the flexibility of States in meeting 
specific statutory requirements. For example, proposed Sec. 361.20 
(State plan development) would allow States to determine what 
constitutes appropriate and sufficient notice under the Act for 
purposes of providing notice of public meetings on State plan 
development. Although the proposed regulations would not impose any 
specific minimum Federal requirements for what constitutes 
``appropriate and sufficient notice,'' the section-by-section summary 
of this proposed section identifies suggested ways a DSU might meet 
these requirements. Similarly, Sec. 361.52 (Opportunity to make 
informed choices regarding the selection of services and providers) of 
the proposed regulations identifies possible methods a DSU may follow 
or sources of information a DSU may maintain to ensure that each 
eligible individual is afforded an opportunity, as required under the 
Act, to make an informed choice in selecting vocational rehabilitation 
services and providers. Finally, proposed Sec. 361.57 (Review of 
rehabilitation counselor and coordinator determinations) would allow 
States to establish their own timelines for key stages of the 
statutorily-mandated fair hearing process.
Additional Benefits
    The proposed regulations reflect the policy in the 1992 Amendments 
of ensuring that individuals are provided necessary information through 
appropriate modes of communication to enable them to participate in a 
rehabilitation program or to influence DSU rehabilitation policy 
development. For example, proposed Sec. 361.20(d) requires a DSU, in 
developing its State plan, to provide, through appropriate modes of 
communication, the notices of the public meetings, any materials 
furnished prior to or during the public meetings, and the approved 
State plan.

2. Clarity of the Regulations

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand.
    The Secretary invites comments on how to make these proposed 
regulations easier to understand, including answers to questions such 
as the following: (1) Are the requirements in the proposed regulations 
clearly stated? (2) Do the regulations contain technical terms or other 
wording that interferes with their clarity? (3) Does the format of the 
regulations (grouping and order of sections, use of headings, 
paragraphing, etc.) aid or reduce their clarity? Would the regulations 
be easier to understand if they were divided into more (but shorter) 
sections? (A ``section'' is preceded by the symbol ``Sec. '' and a 
numbered heading; for example, Sec. 361.5 Applicable definitions.) (4) 
Is the description of the regulations in the ``Supplementary 
Information'' section of this preamble helpful in understanding the 
regulations? How could this description be more helpful in making the 
regulations easier to understand? (5) What else could the Department do 
to make the regulations easier to understand?
    A copy of any comments that concern how the Department could make 
these proposed regulations easier to understand should be sent to 
Stanley M. Cohen, Regulations Quality Officer, U.S. Department of 
Education, 600 Independence Avenue, S.W. (Room 5100, FB-10B), 
Washington, D.C. 20202-2241.

Regulatory Flexibility Act Certification

    The Secretary certifies that these proposed regulations would not 
have a significant economic impact on a substantial number of small 
entities.
    Because these proposed regulations would affect only States and 
State agencies, the regulations would not have an impact on small 
entities. States and State agencies are not defined as ``small 
entities'' in the Regulatory Flexibility Act.

Paperwork Reduction Act of 1995

    Sections 361.10, 361.13, 361.14, 361.15, 361.16, 361.17, 361.18, 
361.19, 361.20, 361.21, 361.22, 361.26, 361.27, 361.29, 361.33, 361.34, 
361.35, 361.37, 361.40, 361.46, 361.48, 361.49, 361.50, 361.51, 361.52, 
361.54, 361.57, 361.71, and 361.72 contain information collection 
requirements. As required by the Paperwork Reduction Act of 1995 (44 
U.S.C. 3507(d)), the Department of Education has submitted a copy of 
these sections to the Office of Management and Budget (OMB) for its 
review.
Collection of Information: The State Vocational Rehabilitation Services 
Program
    States are eligible to apply for grants under these regulations. 
The information to be collected includes State plan assurances and 
descriptions to meet statutory requirements. The Department needs and 
uses the information to review State plans to determine whether they 
can be approved. Approval of a State plan is necessary to receive a 
grant under this program.
    All information is to be collected and reported once every three 
years, with the exception of the following information, which is 
required annually: advice provided by the State Rehabilitation Advisory 
Council under Sec. 361.16; collection and analysis of data on qualified 
personnel needs and personnel development under Sec. 361.18; analysis 
of characteristics of individuals determined to be ineligible for 
services and reasons for their ineligibility, evaluation of the 
effectiveness of the State's vocational rehabilitation program, any 
changes adopted in State policy or in the State plan as a result of 
statewide studies and the annual program evaluation, and the methods 
used to expand and improve vocational rehabilitation services to 
individuals with the most severe disabilities under Sec. 361.29; 
revisions to the supported employment plan under Sec. 361.34; a 
description of the manner in which rehabilitation technology services 
will be provided throughout the rehabilitation process, the personnel 
training that will be provided to facilitate the provision of 
rehabilitation technology services, and the manner in which personal 
assistance services will be provided to individuals with disabilities 
under Sec. 361.48. Annual reporting and recordkeeping burden for this 
collection of information is estimated to average 221.2 hours per 
response for 82 respondents, including the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information. Thus, the total annual reporting and 
recordkeeping burden for this collection is estimated to be 18,138.4 
hours.
    Organizations and individuals desiring to submit comments on the 
information collection requirements should direct them to the Office of 
Information and Regulatory Affairs, OMB, Room 10235, New Executive 
Office Building, Washington, D.C. 20503; Attention: Laura Oliven. 

[[Page 64497]]

    The Department considers comments by the public on these proposed 
collections of information in--
     Evaluating whether the proposed collections of information 
are necessary for the proper performance of the functions of the 
Department, including whether the information will have practical 
utility;
     Evaluating the accuracy of the Department's estimate of 
the burden of the proposed collections of information, including the 
validity of the methodology and assumptions used;
     Enhancing the quality, usefulness, and clarity of the 
information to be collected; and
     Minimizing the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology; e.g., permitting 
electronic submission of responses.
    OMB is required to make a decision concerning the collections of 
information contained in these proposed regulations between 30 and 60 
days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication. This does not affect 
the deadline for the public to comment to the Department on the 
proposed regulations.

Intergovernmental Review

    This program is subject to the requirements of Executive Order 
12372 and the regulations in 34 CFR part 79. The objective of the 
Executive order is to foster an intergovernmental partnership and a 
strengthened federalism by relying on processes developed by State and 
local governments for coordination and review of proposed Federal 
financial assistance.
    In accordance with the order, this document is intended to provide 
early notification of the Department's specific plans and actions for 
this program.
    Invitation to Comment: Interested persons are invited to submit 
comments and recommendations regarding these proposed regulations.
    All comments submitted in response to these proposed regulations 
will be available for public inspection, during and after the comment 
period, in Room 3214, 330 C Street SW., Washington, D.C., between the 
hours of 8:30 a.m. and 4:00 p.m., Monday through Friday of each week 
except Federal holidays.

Assessment of Educational Impact

    The Secretary particularly requests comments on whether the 
proposed regulations in this document would require transmission of 
information that is being gathered by or is available from any other 
agency or authority of the United States.

List of Subjects in 34 CFR Part 361

    Reporting and recordkeeping requirements, State-administered grant 
program--education, Vocational rehabilitation.

    Dated: August 28, 1995.
Richard W. Riley,
Secretary of Education.

(Catalog of Federal Domestic Assistance Number 84.126--The State 
Vocational Rehabilitation Services Program)

    The Secretary proposes to amend Title 34 of the Code of Federal 
Regulations by revising Part 361 to read as follows:

PART 361--THE STATE VOCATIONAL REHABILITATION SERVICES PROGRAM

Subpart A--General

Sec.
361.1  Purpose.
361.2  Eligibility for a grant.
361.3  Authorized activities.
361.4  Applicable regulations.
361.5  Applicable definitions.
Subpart B--State Plan for Vocational Rehabilitation Services
361.10  Submission, approval, and disapproval of the State plan.
361.11  Withholding of funds.

State Plan Content: Administration

361.12  Methods of administration.
361.13  State agency for administration.
361.14  Substitute State agency.
361.15  Local administration.
361.16  Establishment of an independent commission or a State 
Rehabilitation Advisory Council.
361.17  Requirements for a State Rehabilitation Advisory Council.
361.18  Comprehensive system of personnel development.
361.19  Affirmative action for individuals with disabilities.
361.20  State plan development.
361.21  Consultations regarding the administration of the State 
plan.
361.22  Cooperation with agencies responsible for transitioning 
students.
361.23  Cooperation with other public agencies.
361.24  Coordination with the Statewide Independent Living Council.
361.25  Statewideness.
361.26  Waiver of statewideness.
361.27  Shared funding and administration of joint programs.
361.28  Third-party cooperative arrangements involving funds from 
other public agencies.
361.29  Statewide studies and evaluations.
361.30  Services to special groups of individuals with disabilities.
361.31  Utilization of community resources.
361.32  Utilization of profitmaking organizations for on-the-job 
training in connection with selected projects.
361.33  Utilization of community rehabilitation programs.
361.34  Supported employment plan.
361.35  Strategic plan.
361.36  [Reserved].
361.37  Establishment and maintenance of information and referral 
resources.
361.38  Protection, use, and release of personal information.
361.39  State-imposed requirements.
361.40  Reports.

State Plan Content: Provision and Scope of Services

361.41  Processing referrals and applications.
361.42  Assessment for determining eligibility and priority for 
services.
361.43  Procedures for ineligibility determination.
361.44  Closure without eligibility determination.
361.45  Development of the individualized written rehabilitation 
program.
361.46  Content of the individualized written rehabilitation 
program.
361.47  Record of services.
361.48  Scope of vocational rehabilitation services for individuals 
with disabilities.
361.49  Scope of vocational rehabilitation services for groups of 
individuals with disabilities.
361.50  Written policies governing the provision of services.
361.51  Written standards for facilities and providers of services.
361.52  Opportunity to make informed choices regarding the selection 
of services and providers.
361.53  Availability of comparable services and benefits.
361.54  Participation of individuals in cost of services based on 
financial need.
361.55  Review of extended employment in community rehabilitation 
programs or other employment under section 14(c) of the Fair Labor 
Standards Act.
361.56  Individuals determined to have achieved an employment 
outcome.
361.57  Review of rehabilitation counselor or coordinator 
determinations.
Subpart C--Financing of State Vocational Rehabilitation Programs
361.60  Matching requirements.
361.61  Limitation on use of funds for construction expenditures.
361.62  Maintenance of effort requirements.
361.63  Program income.
361.64  Obligation of Federal funds and program income.
361.65  Allotment and payment of Federal funds for vocational 
rehabilitation services. 

[[Page 64498]]

Subpart D--Strategic Plan for Innovation and Expansion of Vocational 
Rehabilitation Services
361.70  Purpose of the strategic plan.
361.71  Procedures for developing the strategic plan.
361.72  Content of the strategic plan.
361.73  Use of funds.
361.74  Allotment of Federal funds.
    Authority: 29 U.S.C. 711(c), unless otherwise noted.

Subpart A--General

Sec. 361.1  Purpose.

    Under the State Vocational Rehabilitation Services Program 
(program), the Secretary provides grants to assist States in operating 
a comprehensive, coordinated, effective, efficient, and accountable 
program that is designed to assess, plan, develop, and provide 
vocational rehabilitation services for individuals with disabilities, 
consistent with their strengths, resources, priorities, concerns, 
abilities, capabilities, and informed choice, so that they may prepare 
for and engage in gainful employment.

(Authority: Sections 12(c) and 100(a)(2) of the Act; 29 U.S.C. 
711(c) and 720(a)(2))

Sec. 361.2  Eligibility for a grant.

    Any State that submits to the Secretary a State plan that meets the 
requirements of section 101(a) of the Act and this part is eligible for 
a grant under this program.

(Authority: Section 101(a) of the Act; 29 U.S.C. 721(a))

Sec. 361.3  Authorized activities.

    The Secretary makes payments to a State to assist in--
    (a) The costs of providing vocational rehabilitation services under 
the State plan;
    (b) Administrative costs under the State plan; and
    (c) The costs of developing and implementing the strategic plan.

(Authority: Section 111(a)(1) of the Act; 29 U.S.C. 731(a)(1))

Sec. 361.4  Applicable regulations.

    The following regulations apply to this program:
    (a) The Education Department General Administrative Regulations 
(EDGAR) as follows:
    (1) 34 CFR Part 74 (Administration of Grants to Institutions of 
Higher Education, Hospitals, and Nonprofit Organizations), with respect 
to subgrants to entities that are not State or local governments or 
Indian tribal organizations.
    (2) 34 CFR Part 76 (State-Administered Programs).
    (3) 34 CFR Part 77 (Definitions that Apply to Department 
Regulations).
    (4) 34 CFR Part 79 (Intergovernmental Review of Department of 
Education Programs and Activities).
    (5) 34 CFR Part 80 (Uniform Administrative Requirements for Grants 
and Cooperative Agreements to State and Local Governments), except for 
Sec. 80.24(a)(2).
    (6) 34 CFR Part 81 (General Education Provisions Act-Enforcement).
    (7) 34 CFR Part 82 (New Restrictions on Lobbying).
    (8) 34 CFR Part 85 (Governmentwide Debarment and Suspension 
(Nonprocurement) and Governmentwide Requirements for Drug-Free 
Workplace (Grants)).
    (9) 34 CFR Part 86 (Drug-Free Schools and Campuses).
    (b) The regulations in this part 361.

(Authority: Section 12(c) of the Act; 29 U.S.C. 711(c))

Sec. 361.5  Applicable definitions.

    (a) Definitions in EDGAR. The following terms used in this part are 
defined in 34 CFR 77.1:

Department
EDGAR
Fiscal year
Nonprofit
Private
Public
Secretary

    (b) Other definitions. The following definitions also apply to this 
part:
    (1) Act means the Rehabilitation Act of 1973 (29 U.S.C. 701 et 
seq.), as amended.

(Authority: Section 12(c) of the Act; 29 U.S.C. 711(c))
    (2) Administrative costs under the State plan means expenses 
related to program planning, development, monitoring, and evaluation, 
including, but not limited to, quality assurance; budgeting, 
accounting, financial management, statistical systems, and related data 
processing; providing information about the program to the public; 
technical assistance to other State agencies, private nonprofit 
organizations, and businesses and industries; the State Rehabilitation 
Advisory Council and other advisory committees; professional 
organization membership dues for State unit employees; the removal of 
architectural barriers in State agency offices and facilities; 
operating and maintaining State unit facilities, equipment, and 
grounds; supplies; administration of the comprehensive system of 
personnel development, including personnel administration, 
administration of affirmative action plans, and training and staff 
development; administrative salaries, including clerical and other 
support staff salaries, in support of these functions; travel costs 
related to carrying out the program, other than travel costs related to 
the provision of services; and legal expenses required in the 
administration of the program.

(Authority: Section 12(c) of the Act; 29 U.S.C. 711(c))

    (3) American Indian means an individual who is a member of an 
Indian tribe.

(Authority: Section 7(20) of the Act; 29 U.S.C. 706(20))

    (4) Applicant means an individual who submits an application for 
vocational rehabilitation services in accordance with 
Sec. 361.41(b)(2).

(Authority: Section 12(c) of the Act; 29 U.S.C.711 (c))

    (5) Appropriate modes of communication means specialized media 
systems and devices for individuals with disabilities that enable an 
individual to comprehend and respond to information that is being 
communicated. Appropriate modes of communication include, but are not 
limited to, the use of interpreters, open and closed captioned videos, 
specialized telecommunications services and audio recordings, Brailled 
and large print materials, materials in electronic formats, and 
augmentative communication devices.

(Authority: Section 12(c) of the Act; 29 U.S.C. 711(c))

    (6) Assistive technology device means any item, piece of equipment, 
or product system, whether acquired commercially off the shelf, 
modified, or customized, that is used to increase, maintain, or improve 
the functional capabilities of an individual with a disability.

(Authority: Section 7(23) of the Act; 29 U.S.C. 706(23))

    (7) Assistive technology service means any service that directly 
assists an individual with a disability in the selection, acquisition, 
or use of an assistive technology device, including--
    (i) The evaluation of the needs of an individual with a disability, 
including a functional evaluation of the individual in his or her 
customary environment;
    (ii) Purchasing, leasing, or otherwise providing for the 
acquisition by an individual with a disability of an assistive 
technology device;
    (iii) Selecting, designing, fitting, customizing, adapting, 
applying, maintaining, repairing, or replacing assistive technology 
devices; 

[[Page 64499]]

    (iv) Coordinating and using other therapies, interventions, or 
services with assistive technology devices, such as those associated 
with existing education and rehabilitation plans and programs;
    (v) Training or technical assistance for an individual with a 
disability or, if appropriate, the family members, guardians, 
advocates, or authorized representatives of the individual; and
    (vi) Training or technical assistance for professionals (including 
individuals providing education and rehabilitation services), 
employers, or others who provide services to, employ, or are otherwise 
substantially involved in the major life functions of individuals with 
disabilities, to the extent that training or technical assistance is 
necessary to the achievement of an employment outcome by an individual 
with a disability.

(Authority: Sections 7(24) and 12(c) of the Act; 29 U.S.C. 706(24) 
and 711(c))

    (8) Community rehabilitation program.
    (i) Community rehabilitation program means a program that provides 
directly or facilitates the provision of one or more of the following 
vocational rehabilitation services to individuals with disabilities to 
enable those individuals to maximize their opportunities for 
employment, including career advancement:
    (A) Medical, psychiatric, psychological, social, and vocational 
services that are provided under one management.
    (B) Testing, fitting, or training in the use of prosthetic and 
orthotic devices.
    (C) Recreational therapy.
    (D) Physical and occupational therapy.
    (E) Speech, language, and hearing therapy.
    (F) Psychiatric, psychological, and social services, including 
positive behavior management.
    (G) Assessment for determining eligibility and vocational 
rehabilitation needs.
    (H) Rehabilitation technology.
    (I) Job development, placement, and retention services.
    (J) Evaluation or control of specific disabilities.
    (K) Orientation and mobility services for individuals who are 
blind.
    (L) Extended employment.
    (M) Psychosocial rehabilitation services.
    (N) Supported employment services and extended services.
    (O) Services to family members if necessary to enable the applicant 
or eligible individual to achieve an employment outcome.
    (P) Personal assistance services.
    (Q) Services similar to the services described in paragraphs (A) 
through (P) of this definition.
    (ii) For the purposes of this definition, the word program means an 
agency, organization, or institution, or unit of an agency, 
organization, or institution, that provides directly or facilitates the 
provision of vocational rehabilitation services as one of its major 
functions.

(Authority: Sections 7(25) and 12(c) of the Act; 29 U.S.C. 706(25) 
and 711(c))

    (9) Comparable services and benefits means services and benefits 
that are--
    (i) Provided or paid for, in whole or in part, by other Federal, 
State, or local public agencies, by health insurance, or by employee 
benefits;
    (ii) Available to the individual within a reasonable period of time 
in accordance with Sec. 361.53; and
    (iii) Commensurate to the services that the individual would 
otherwise receive from the vocational rehabilitation agency.

(Authority: Sections 12(c) and 101(a)(8) of the Act; 29 U.S.C. 
711(c) and 721(a)(8))

    (10) Competitive employment means work--
    (i) In the competitive labor market that is performed on a full-
time or part-time basis in an integrated setting; and
    (ii) For which an individual is compensated at or above the minimum 
wage, but not less than the prevailing wage for the same or similar 
work in the local community performed by individuals who are not 
disabled.

(Authority: Sections 7(5), 7(18), and 12(c) of the Act; 29 U.S.C. 
706(5), 706(18), and 711(c))

    (11) Construction of a facility for a public or nonprofit community 
rehabilitation program means--
    (i) The acquisition of land in connection with the construction of 
a new building for a community rehabilitation program;
    (ii) The acquisition of existing buildings;
    (iii) The remodeling, alteration, or renovation of existing 
buildings;
    (iv) The construction of new buildings and expansion of existing 
buildings;
    (v) Architect's fees, site surveys, and soil investigation, if 
necessary, in connection with the construction project;
    (vi) The acquisition of initial fixed or movable equipment of any 
new, newly acquired, newly expanded, newly remodeled, newly altered, or 
newly renovated buildings that are to be used for community 
rehabilitation program purposes; and
    (vii) Other direct expenditures appropriate to the construction 
project, except costs of off-site improvements.

(Authority: Sections 7(1) and 12(c) of the Act; 29 U.S.C. 706(1) and 
711(c))

    (12) Designated State agency or State agency means the sole State 
agency, designated in accordance with Sec. 361.13(a), to administer, or 
supervise local administration of, the State plan for vocational 
rehabilitation services. The term includes the State agency for 
individuals who are blind, if designated as the sole State agency with 
respect to that part of the plan relating to the vocational 
rehabilitation of individuals who are blind.

(Authority: Sections 7(3)(A) and 101(a)(1)(A) of the Act; 29 U.S.C. 
706(3)(A) and 721(a)(1)(A))

    (13) Designated State unit or State unit means either--
    (i) The State agency vocational rehabilitation bureau, division, or 
other organizational unit that is primarily concerned with vocational 
rehabilitation or vocational and other rehabilitation of individuals 
with disabilities and that is responsible for the administration of the 
vocational rehabilitation program of the State agency, as required 
under Sec. 361.13(b); or
    (ii) The independent State commission, board, or other agency that 
has vocational rehabilitation, or vocational and other rehabilitation, 
as its primary function.

(Authority: Sections 7(3)(B) and 101(a)(2)(A) of the Act; 29 U.S.C. 
706(3)(B) and 721(a)(2)(A))

    (14) Eligible individual means an applicant for vocational 
rehabilitation services who meets the eligibility requirements of 
Sec. 361.42(a).

(Authority: Sections 7(8)(a) and 102(a)(1) of the Act; 29 U.S.C. 
706(8) and 722(a)(1))

    (15) Employment outcome means, with respect to an individual, 
entering or retaining full-time or, if appropriate, part-time 
competitive employment in the integrated labor market to the greatest 
extent practicable; supported employment; or any other type of 
employment that is consistent with an individual's strengths, 
resources, priorities, concerns, abilities, capabilities, interests, 
and informed choice.

(Authority: Sections 7(5) and 12(c) of the Act; 29 U.S.C. 706(5) and 
711(c))

    (16) Establishment, development, or improvement of a public or 
nonprofit community rehabilitation program means--
    (i) The establishment of a facility for a public or nonprofit 
community 

[[Page 64500]]
rehabilitation program as defined in paragraph (b)(17) of this section;
    (ii) Staffing, if necessary to establish, develop, or improve a 
community rehabilitation program for a maximum period of four years, 
with Federal financial participation available at the applicable 
matching rate for the following levels of staffing costs:
    (A) 100 percent of staffing costs for the first year.
    (B) 75 percent of staffing costs for the second year.
    (C) 60 percent of staffing costs for the third year.
    (D) 45 percent of staffing costs for the fourth year; and
    (iii) Other expenditures related to the establishment, development, 
or improvement of a community rehabilitation program that are necessary 
to make the program functional or increase its effectiveness, but are 
not ongoing operating expenses of the program.

(Authority: Sections 7(6) and 12(c) of the Act; 29 U.S.C. 706(6) and 
711(c))

    (17) Establishment of a facility for a public or nonprofit 
community rehabilitation program means--
    (i) The acquisition of an existing building, and if necessary the 
land in connection with the acquisition, if the building has been 
completed in all respects for at least one year prior to the date of 
acquisition and the Federal share of the cost of the acquisition is not 
more than $300,000;
    (ii) The remodeling or alteration of an existing building, provided 
the estimated cost of remodeling or alteration does not exceed the 
appraised value of the existing building;
    (iii) The expansion of an existing building, provided that--
    (A) The existing building is complete in all respects;
    (B) The total size in square footage of the expanded building, 
notwithstanding the number of expansions, is not greater than twice the 
size of the existing building;
    (C) The expansion is joined structurally to the existing building 
and does not constitute a separate building; and
    (D) The costs of the expansion do not exceed the appraised value of 
the existing building;
    (iv) Architect's fees, site survey, and soil investigation, if 
necessary in connection with the acquisition, remodeling, alteration, 
or expansion of an existing building; and
    (v) The acquisition of fixed or movable equipment, including the 
costs of installation of the equipment, if necessary to establish, 
develop, or improve a community rehabilitation program.

(Authority: Section 12(c) of the Act; 29 U.S.C. 711(c))

    (18) Extended employment means work in a non-integrated or 
sheltered setting for a public or private nonprofit agency or 
organization that provides compensation in accordance with the Fair 
Labor Standards Act and any needed support services to an individual 
with a disability to enable the individual to continue to train or 
otherwise prepare for competitive employment, unless the individual 
through informed choice chooses to remain in extended employment.

(Authority: Section 12(c) of the Act; 29 U.S.C. 711(c))

    (19) Extended services, as used in the definition of ``Supported 
employment,'' means ongoing support services and other appropriate 
services that are needed to support and maintain an individual with a 
most severe disability in supported employment and that are provided by 
a State agency, a private nonprofit organization, employer, or any 
other appropriate resource, from funds other than funds received under 
this part, 34 CFR part 363, 34 CFR part 376, or 34 CFR part 380, after 
an individual with a most severe disability has made the transition 
from support provided by the designated State unit.

(Authority: Section 7(27) of the Act; 29 U.S.C. 706(27))

    (20) Extreme medical risk means a probability of substantially 
increasing functional impairment or death if medical services, 
including mental health services, are not provided expeditiously.

(Authority: Sections 12(c) and 101(a)(8) of the Act; 29 U.S.C. 
711(c) and 721(a)(8))

    (21) Family member, for purposes of receiving vocational 
rehabilitation services in accordance with Sec. 361.48(a)(9), means an 
individual--
    (i) Who either--
    (A) Is a relative or guardian of an applicant or eligible 
individual; or
    (B) Lives in the same household as an applicant or eligible 
individual;
    (ii) Who has a substantial interest in the well-being of that 
individual; and
    (iii) Whose receipt of vocational rehabilitation services is 
necessary to enable the applicant or eligible individual to achieve an 
employment outcome.
(Authority: Sections 12(c) and 103(a)(3) of the Act; 29 U.S.C. 
711(c) and 723(a)(3))
    (22) Impartial hearing officer.
    (i) Impartial hearing officer means an individual who--
    (A) Is not an employee of a public agency (other than an 
administrative law judge, hearing examiner, or employee of an 
institution of higher education);
    (B) Is not a member of the State Rehabilitation Advisory Council 
for the designated State unit;
    (C) Has not been involved in previous decisions regarding the 
vocational rehabilitation of the applicant or eligible individual;
    (D) Has knowledge of the delivery of vocational rehabilitation 
services, the State plan, and the Federal and State regulations 
governing the provision of services;
    (E) Has received training with respect to the performance of 
official duties; and
    (F) Has no personal, professional, or financial interest that would 
be in conflict with the objectivity of the individual.
    (ii) An individual shall not be considered to be an employee of a 
public agency for the purposes of this definition solely because the 
individual is paid by the agency to serve as a hearing officer.

(Authority: Section 7(28) of the Act; 29 U.S.C. 706(28))

    (23) Indian tribe means any Federal or State Indian tribe, band, 
rancheria, pueblo, colony, or community, including any Alaskan native 
village or regional village corporation (as defined in or established 
pursuant to the Alaska Native Claims Settlement Act).

(Authority: Section 7(21) of the Act; 29 U.S.C. 706(21))

    (24) Individual who is blind means a person who is blind within the 
meaning of the applicable State law.

(Authority: Section 12(c) of the Act; 29 U.S.C. 711(c))

    (25) Individual with a disability, except in Secs. 361.17(a), (b), 
(c), and (j), 361.19, 361.20, and 361.51(b)(2), means an individual--
    (i) Who has a physical or mental impairment;
    (ii) Whose impairment constitutes or results in a substantial 
impediment to employment; and
    (iii) Who can benefit in terms of an employment outcome from the 
provision of vocational rehabilitation services.

(Authority: Section 7(8)(A) of the Act; 29 U.S.C. 706(8)(A))

    (26) Individual with a disability, for purposes of Secs. 361.17 
(a), (b), (c), and (j), 361.19, 361.20, and 361.51(b)(2), means an 
individual--

[[Page 64501]]

    (i) Who has a physical or mental impairment that substantially 
limits one or more major life activities;
    (ii) Who has a record of such an impairment; or
    (iii) Who is regarded as having such an impairment.

(Authority: Section 7(8)(B) of the Act; 29 U.S.C. 706(8)(B))

    (27) Individual with a most severe disability means an individual 
with a severe disability who meets the designated State unit's criteria 
for an individual with a most severe disability. This criteria must be 
consistent with the requirements in Sec. 361.36(c)(3).

(Authority: Section 101(a)(5) of the Act; 29 U.S.C. 721(a)(5))

    (28) Individual with a severe disability means an individual with a 
disability--
    (i) Who has a severe physical or mental impairment that seriously 
limits one or more functional capacities (such as mobility, 
communication, self-care, self-direction, interpersonal skills, work 
tolerance, or work skills) in terms of an employment outcome;
    (ii) Whose vocational rehabilitation can be expected to require 
multiple vocational rehabilitation services over an extended period of 
time; and
    (iii) Who has one or more physical or mental disabilities resulting 
from amputation, arthritis, autism, blindness, burn injury, cancer, 
cerebral palsy, cystic fibrosis, deafness, head injury, heart disease, 
hemiplegia, hemophilia, respiratory or pulmonary dysfunction, mental 
retardation, mental illness, multiple sclerosis, muscular dystrophy, 
musculo-skeletal disorders, neurological disorders (including stroke 
and epilepsy), spinal cord conditions (including paraplegia and 
quadriplegia), sickle cell anemia, specific learning disability, end-
stage renal disease, or another disability or combination of 
disabilities determined on the basis of an assessment for determining 
eligibility and vocational rehabilitation needs to cause comparable 
substantial functional limitation.

(Authority: Section 7(15)(A) of the Act; 29 U.S.C. 708(15)(A))

    (29) Individual's representative means any representative chosen by 
an applicant or eligible individual, including a parent, guardian, 
other family member, or advocate, unless a representative has been 
appointed by a court to represent the individual, in which case the 
court-appointed representative is the individual's representative.

(Authority: Section 12(c) of the Act; 29 U.S.C. 711(c))

    (30) Integrated setting, with respect to the provision of services 
or an employment outcome, means a setting typically found in the 
community in which applicants or eligible individuals have the 
opportunity to interact on a regular basis with non-disabled 
individuals other than non-disabled individuals who are providing 
services to those applicants or eligible individuals.

(Authority: Section 12(c) of the Act; 29 U.S.C. 711(c))

    (31) Maintenance means monetary support provided to an eligible 
individual or an individual receiving extended evaluation services for 
those living expenses, such as food, shelter, and clothing, that are in 
excess of the normal living expenses of the individual and that are 
necessitated by the individual's participation in a program of 
vocational rehabilitation services.

(Authority: Sections 12(c) and 103(a)(5) of the Act; 29 U.S.C. 
711(c) and 723(a)(5))

Note: The following are examples of expenses that would meet the 
definition of maintenance.

    Example: The cost of a uniform or other suitable clothing that 
is required for an individual's job placement or job seeking 
activities.
    Example: The cost of short-term shelter that is required in 
order for an individual to participate in vocational training at a 
site that is not within commuting distance of an individual's home.
    Example: The initial one-time costs, such as a security deposit 
or charges for the initiation of utilities, that are required in 
order for an individual to relocate for a job placement.
    Example: The costs of food, clothing, and shelter for homeless 
or recently deinstitutionalized individuals until other financial 
assistance is secured for those costs.

    (32) Nonprofit, with respect to a community rehabilitation program, 
means a community rehabilitation program carried out by a corporation 
or association, no part of the net earnings of which inures, or may 
lawfully inure, to the benefit of any private shareholder or individual 
and the income of which is exempt from taxation under section 501(c)(3) 
of the Internal Revenue Code of 1954.

(Authority: Section 7(10) of the Act; 29 U.S.C. 706(10))

    (33) Ongoing support services, as used in the definition of 
``Supported employment''--
    (i) Means services that are--
    (A) Needed to support and maintain an individual with a most severe 
disability in supported employment;
    (B) Identified based on a determination by the designated State 
unit of the individual's needs as specified in an individualized 
written rehabilitation program; and
    (C) Furnished by the designated State unit from the time of job 
placement until transition to extended services, unless post-employment 
services are provided following transition, and thereafter by one or 
more extended services providers throughout the individual's term of 
employment in a particular job placement or multiple placements if 
those placements are being provided under a program of transitional 
employment;
    (ii) Must include an assessment of employment stability and 
provision of specific services or the coordination of services at or 
away from the worksite that are needed to maintain stability based on--
    (A) At a minimum, twice-monthly monitoring at the worksite of each 
individual in supported employment; or
    (B) If under special circumstances, especially at the request of 
the individual, the individualized written rehabilitation program 
provides for off-site monitoring, twice-monthly meetings with the 
individual;
    (iii) Consist of--
    (A) Any particularized assessment supplementary to the 
comprehensive assessment of rehabilitation needs described in this 
part;
    (B) The provision of skilled job trainers who accompany the 
individual for intensive job skill training at the work site;
    (C) Job development and placement;
    (D) Social skills training;
    (E) Regular observation or supervision of the individual;
    (F) Follow-up services including regular contact with the 
employers, the individuals, the parents, family members, guardians, 
advocates or authorized representatives of the individuals, and other 
suitable professional and informed advisors, in order to reinforce and 
stabilize the job placement;
    (G) Facilitation of natural supports at the worksite;
    (H) Any other service identified in the scope of vocational 
rehabilitation services for individuals, described in Sec. 361.48; or
    (I) Any service similar to the foregoing services.

(Authority: Sections 7(33) and 12(c) of the Act; 29 U.S.C. 706(33) 
and 711(c))

    (34) Personal assistance services means a range of services 
provided by one or more persons designed to assist an individual with a 
disability to perform daily living activities on or off the job that 
the individual would typically perform without assistance if 

[[Page 64502]]
the individual did not have a disability. The services must be 
necessary to the achievement of an employment outcome and may be 
provided only while the individual is receiving other vocational 
rehabilitation services. The services may include training in managing, 
supervising, and directing personal assistance services.

(Authority: Sections 7(11) and 103(a)(15) of the Act; 29 U.S.C. 
706(11) and 29 U.S.C. 723)

    (35) Physical and mental restoration services means--
    (i) Corrective surgery or therapeutic treatment that is likely, 
within a reasonable period of time, to correct or modify substantially 
a stable or slowly progressive physical or mental impairment that 
constitutes a substantial impediment to employment;
    (ii) Diagnosis of and treatment for mental or emotional disorders 
by qualified personnel in accordance with State licensure laws;
    (iii) Dentistry;
    (iv) Nursing services;
    (v) Necessary hospitalization (either inpatient or outpatient care) 
in connection with surgery or treatment and clinic services;
    (vi) Drugs and supplies;
    (vii) Prosthetic, orthotic, or other assistive devices, including 
hearing aids;
    (viii) Eyeglasses and visual services, including visual training, 
and the examination and services necessary for the prescription and 
provision of eyeglasses, contact lenses, microscopic lenses, telescopic 
lenses, and other special visual aids prescribed by personnel that are 
qualified in accordance with State licensure laws;
    (ix) Podiatry;
    (x) Physical therapy;
    (xi) Occupational therapy;
    (xii) Speech or hearing therapy;
    (xiii) Mental health services;
    (xiv) Treatment of either acute or chronic medical complications 
and emergencies that are associated with or arise out of the provision 
of physical and mental restoration services, or that are inherent in 
the condition under treatment;
    (xv) Special services for the treatment of individuals with end-
stage renal disease, including transplantation, dialysis, artificial 
kidneys, and supplies; and
    (xvi) Other medical or medically related rehabilitation services.

(Authority: Sections 12(c) and 103(a)(4) of the Act; 29 U.S.C. 
711(c) and 723(a)(4))

    (36) Physical or mental impairment means an injury, disease, or 
other condition that materially limits, or if not treated will probably 
result in materially limiting, mental or physical functioning.

(Authority: Sections 7(8)(A) and 12(c) of the Act; 29 U.S.C. 
706(8)(A) and 711(c))

    (37) Post-employment services means one or more of the services 
identified in Sec. 361.48 that are provided subsequent to the 
achievement of an employment outcome and that are necessary for an 
individual to maintain, regain, or advance in employment, consistent 
with the individual's strengths, resources, priorities, concerns, 
abilities, capabilities, and interests.

(Authority: Section 12(c) of the Act; 29 U.S.C. 711(c))

    Note: Post-employment services are intended to ensure that the 
employment outcome remains consistent with the individual's 
strengths, resources, priorities, concerns, abilities, capabilities, 
and interests. These services are available to meet rehabilitation 
needs that do not require a complex and comprehensive provision of 
services and, thus, should be limited in scope and duration. If more 
comprehensive services are required, then a new rehabilitation 
effort should be considered. Post-employment services are to be 
provided under an amended individualized written rehabilitation 
program; thus, a re-determination of eligibility is not required. 
The provision of post-employment services is subject to the same 
requirements in this part as the provision of any other vocational 
rehabilitation service. Post-employment services are available to 
assist an individual to maintain employment, e.g., the individual's 
employment is jeopardized because of conflicts with supervisors or 
co-workers and the individual needs mental health services and 
counseling to maintain the employment; to regain employment, e.g., 
the individual's job is eliminated through reorganization and new 
placement services are needed; and to advance in employment, e.g., 
the employment is no longer consistent with the individual's 
strengths, resources, priorities, concerns, abilities, capabilities, 
and interests.

    (38) Rehabilitation engineering means the systematic application of 
engineering sciences to design, develop, adapt, test, evaluate, apply, 
and distribute technological solutions to problems confronted by 
individuals with disabilities in functional areas, such as mobility, 
communications, hearing, vision, and cognition, and in activities 
associated with employment, independent living, education, and 
integration into the community.

(Authority: Sections 7(13) and 12(c) of the Act; 29 U.S.C. 706(13) 
and 711(c))

    (39) Rehabilitation technology means the systematic application of 
technologies, engineering methodologies, or scientific principles to 
meet the needs of, and address the barriers confronted by, individuals 
with disabilities in areas that include education, rehabilitation, 
employment, transportation, independent living, and recreation. The 
term includes rehabilitation engineering, assistive technology devices, 
and assistive technology services.

(Authority: Section 7(13) of the Act; 29 U.S.C. 706(13))

    (40) Reservation means a Federal or State Indian reservation, 
public domain Indian allotment, former Indian reservation in Oklahoma, 
and land held by incorporated Native groups, regional corporations, and 
village corporations under the provisions of the Alaska Native Claims 
Settlement Act.

(Authority: Section 130(c) of the Act; 29 U.S.C. 750(c))

    (41) Sole local agency means a unit or combination of units of 
general local government or one or more Indian tribes that has the sole 
responsibility under an agreement with, and the supervision of, the 
State agency to conduct a local or tribal vocational rehabilitation 
program, in accordance with the State plan.

(Authority: Section 7(9) of the Act; 29 U.S.C. 706(9))

    (42) State means any of the 50 States, the District of Columbia, 
the Commonwealth of Puerto Rico, the United States Virgin Islands, 
Guam, American Samoa, and the Commonwealth of the Northern Mariana 
Islands.

(Authority: Section 7(16) of the Act; 29 U.S.C. 706(16))

    (43) State plan means the State plan for vocational rehabilitation 
services or the vocational rehabilitation services part of a 
consolidated rehabilitation plan under Sec. 361.10(c).

(Authority: Sections 12(c) and 101 of the Act; 29 U.S.C. 711(c) and 
721)

    (44) Substantial impediment to employment means that a physical or 
mental impairment (in light of attendant medical, psychological, 
vocational, educational, and other related factors) hinders an 
individual from preparing for, entering into, engaging in, or retaining 
employment consistent with the individual's abilities and capabilities.

(Authority: Sections 7(8)(A) and 12(c) of the Act; 29 U.S.C. 
706(8)(A) and 711(c))

    (45) Supported employment means--
    (i) Competitive employment in an integrated setting with ongoing 
support services for individuals with the most severe disabilities--
    (A) For whom competitive employment has not traditionally occurred 
or for whom competitive 

[[Page 64503]]
employment has been interrupted or intermittent as a result of a severe 
disability; and
    (B) Who, because of the nature and severity of their disabilities, 
need intensive supported employment services from the designated State 
unit and extended services after transition in order to perform this 
work; or
    (ii) Transitional employment for individuals with the most severe 
disabilities due to mental illness.

(Authority: Section 7(18) of the Act; 29 U.S.C. 706(18)(A))

    (46) Supported employment services means ongoing support services 
and other appropriate services needed to support and maintain an 
individual with a most severe disability in supported employment that 
are provided by the designated State unit--
    (i) For a period of time not to exceed 18 months, unless under 
special circumstances the eligible individual and the rehabilitation 
counselor or coordinator jointly agree to extend the time in order to 
achieve the rehabilitation objectives identified in the individualized 
written rehabilitation program; and
    (ii) Following transition, as post-employment services that are 
unavailable from an extended services provider and that are necessary 
to maintain or regain the job placement or advance in employment.

(Authority: Sections 7(34) and 12(c) of the Act; 29 U.S.C. 706(34) 
and 711(c))

    (47) Transition services means a coordinated set of activities for 
a student designed within an outcome-oriented process that promotes 
movement from school to post-school activities, including postsecondary 
education, vocational training, integrated employment (including 
supported employment), continuing and adult education, adult services, 
independent living, or community participation. The coordinated set of 
activities must be based upon the individual student's needs, taking 
into account the student's preferences and interests, and must include 
instruction, community experiences, the development of employment and 
other post-school adult living objectives, and, if appropriate, 
acquisition of daily living skills and functional vocational 
evaluation. Transition services must promote or facilitate the 
accomplishment of long-term rehabilitation goals and intermediate 
rehabilitation objectives identified in the student's individualized 
written rehabilitation program (IWRP).

(Authority: Section 7(35) and 103(a)(14) of the Act; 29 U.S.C. 
706(35) and 723(a)(14))

    (48) Transitional employment, as used in the definition of 
``Supported employment,'' means a series of temporary job placements in 
competitive work in integrated settings with ongoing support services 
for individuals with the most severe disabilities due to mental 
illness. In transitional employment, the provision of ongoing support 
services must include continuing sequential job placements until job 
permanency is achieved.

(Authority: Sections 7(18) and 12(c) of the Act; 29 U.S.C. 706(18) 
and 711(c))

    (49) Transitioning student means a student who is an eligible 
individual in accordance with the requirements of Sec. 361.42(a)(1) and 
who is receiving transition services as defined in paragraph (b)(47) of 
this section.
(Authority: Section 12(c) of the Act; 29 U.S.C. 711(c))
    (50) Transportation means travel and related expenses that are 
necessary to enable an applicant or eligible individual to participate 
in any vocational rehabilitation service.

(Authority: Sections 12(c) and 103(a)(10) of the Act; 29 U.S.C. 
711(c) and 723(a)(10))

    Note: The following are examples of expenses that would meet the 
definition of transportation.

    Example: Travel and related expenses for a personal care 
attendant or aide if the services of that person are necessary to 
enable the applicant or eligible individual to travel to participate 
in any vocational rehabilitation service.
    Example: Short-term travel-related expenses, such as food and 
shelter, incurred by an applicant participating in evaluation or 
assessment services that necessitates travel.
    Example: Relocation expenses incurred by an eligible individual 
in connection with a job placement that is a significant distance 
from the eligible individual's current residence.
    Example: The purchase and repair of vehicles, including vans, 
but not the modification of these vehicles, as modification would be 
considered a rehabilitation technology service.

    (51) Vocational rehabilitation services--
    (i) If provided to an individual, means those services listed in 
Sec. 361.48; and
    (ii) If provided for the benefit of groups of individuals, also 
means those services listed in Sec. 361.49.

(Authority: Sections 103(a) and (b) of the Act; 29 U.S.C. 723(a) and 
(b))

Subpart B--State Plan for Vocational Rehabilitation Services

Sec. 361.10  Submission, approval, and disapproval of the State plan.

    (a) Purpose. In order for a State to receive a grant under this 
part, the designated State agency shall submit to the Secretary, and 
obtain approval of, a State plan that contains a description of the 
State's vocational rehabilitation services program, the plans and 
policies to be followed in carrying out the program, and other 
information requested by the Secretary, in accordance with the 
requirements of this part.
    (b) Separate part relating to rehabilitation of individuals who are 
blind. If a separate State agency administers or supervises the 
administration of a separate part of the State plan relating to the 
rehabilitation of individuals who are blind, that part of the State 
plan must separately conform to all requirements under this part that 
are applicable to a State plan.
    (c) Consolidated rehabilitation plan. The State may choose to 
submit a consolidated rehabilitation plan that includes the State plan 
for vocational rehabilitation services and the State's plan for its 
program for persons with developmental disabilities. The State planning 
and advisory council for developmental disabilities and the agency 
administering the State's program for persons with developmental 
disabilities must concur in the submission of a consolidated 
rehabilitation plan. A consolidated rehabilitation plan must comply 
with, and be administered in accordance with, the Act and the 
Developmental Disabilities Assistance and Bill of Rights Act, as 
amended.
    (d) Public participation. The State shall develop the State plan 
with input from the public, through public meetings, in accordance with 
the requirements of Sec. 361.20.
    (e) Duration. The State plan must cover a three-year period or, 
with the prior approval of the Secretary, some other period that 
corresponds to the period for which the State submits a plan under 
another Federal law, such as Part B of the Individuals with 
Disabilities Education Act (IDEA).
    (f) Submission of the State plan. The State shall submit the State 
plan to the Secretary for approval--
    (1) No later than July 1 of the year preceding the first fiscal 
year for which the State plan is submitted; or
    (2) With the prior approval of the Secretary, no later than the 
date on which the State is required to submit a State plan under 
another Federal law. 

[[Page 64504]]

    (g) Revisions to the State plan. The State shall submit to the 
Secretary for approval revisions to the State plan in accordance with 
the requirements of this part and 34 CFR 76.140.
    (h) Interim State plan. The Secretary may require a State to submit 
an interim State plan for a period of less than three years following a 
reauthorization of the Act and prior to the publication of final 
regulations.
    (i) Approval. The Secretary approves a State plan and revisions to 
the State plan that conform to the requirements of this part and 
section 101(a) of the Act.
    (j) Disapproval. The Secretary disapproves a State plan that does 
not conform to the requirements of this part and section 101(a) of the 
Act, in accordance with the following procedures:
    (1) Informal resolution. Prior to disapproving a State plan, the 
Secretary attempts to resolve disputes informally with State officials.
    (2) Notice. If, after reasonable effort has been made to resolve 
the dispute, no resolution has been reached, the Secretary provides 
notice to the State agency of the intention to disapprove the State 
plan and of the opportunity for a hearing.
    (3) State plan hearing. If the State agency requests a hearing, the 
Secretary designates one or more individuals, either from the 
Department or elsewhere, not responsible for or connected with the 
administration of this program, to conduct a hearing in accordance with 
the provisions of 34 CFR Part 81, Subpart A.
    (4) Initial decision. The hearing officer issues an initial 
decision in accordance with 34 CFR 81.41.
    (5) Petition for review of an initial decision. The State agency 
may seek the Secretary's review of the initial decision in accordance 
with 34 CFR 81.42.
    (6) Review by the Secretary. The Secretary reviews the initial 
decision in accordance with 34 CFR 81.43.
    (7) Final decision of the Department. The final decision of the 
Department is made in accordance with 34 CFR 81.44.
    (8) Judicial review. A State may appeal the Secretary's decision to 
disapprove the State plan by filing a petition for review with the 
United States Court of Appeals for the circuit in which the State is 
located, in accordance with section 107(d) of the Act.

(Authority: Sections 6, 101(a) and (b), and 107(d) of the Act; 29 
U.S.C. 705, 721(a) and (b), and 727(d))

Sec. 361.11   Withholding of funds.

    (a) Basis for withholding. The Secretary may withhold or limit 
payments under sections 111, 124, or 632(a) of the Act, as provided by 
section 107(c) and (d) of the Act, if the Secretary determines that--
    (1) The State plan, including the supported employment supplement 
and the strategic plan supplement, has been so changed that it no 
longer conforms with the requirements of this part or 34 CFR part 363; 
or
    (2) In the administration of the State plan, there has been a 
failure to comply substantially with any provision of that plan or a 
program improvement plan established in accordance with section 106 of 
the Act.
    (b) Informal resolution. Prior to withholding or limiting payments 
in accordance with this section, the Secretary attempts to resolve 
disputed issues informally with State officials.
    (c) Notice. If, after reasonable effort has been made to resolve 
the dispute, no resolution has been reached, the Secretary provides 
notice to the State agency of the intention to withhold or limit 
payments and of the opportunity for a hearing.
    (d) Withholding hearing. If the State agency requests a hearing, 
the Secretary designates one or more individuals, either from the 
Department or elsewhere, not responsible for or connected with the 
administration of this program, to conduct a hearing in accordance with 
the provisions of 34 CFR part 81, subpart A.
    (e) Initial decision. The hearing officer issues an initial 
decision in accordance with 34 CFR 81.41.
    (f) Petition for review of an initial decision. The State agency 
may seek the Secretary's review of the initial decision in accordance 
with 34 CFR 81.42.
    (g) Review by the Secretary. The Secretary reviews the initial 
decision in accordance with 34 CFR 81.43.
    (h) Final decision of the Department. The final decision of the 
Department is made in accordance with 34 CFR 81.44.
    (i) Judicial review. A State may appeal the Secretary's decision to 
withhold or limit payments by filing a petition for review with the 
U.S. Court of Appeals for the circuit in which the State is located, in 
accordance with section 107(d) of the Act.

(Authority: Sections 101(b), 107(c), and 107(d) of the Act; 29 
U.S.C. 721(b), 727(c)(1) and (2), and 727(d))

State Plan Content: Administration

Sec. 361.12   Methods of administration.

    The State plan must assure that the State agency, and the 
designated State unit if applicable, employs methods of administration 
found necessary by the Secretary for the proper and efficient 
administration of the plan and for carrying out all functions for which 
the State is responsible under the plan and this part. These methods 
must include procedures to ensure accurate data collection and 
financial accountability.

(Authority: Section 101(a)(6) of the Act; 29 U.S.C. 721(a)(6))

Sec. 361.13   State agency for administration.

    (a) Designation of State agency. The State plan must designate a 
State agency as the sole State agency to administer the State plan, or 
to supervise its administration in a political subdivision of the State 
by a sole local agency, in accordance with the following requirements:
    (1) General. Except as provided in paragraphs (a)(2) and (3) of 
this section, the State plan must provide that the designated State 
agency is one of the following types of agencies:
    (i) A State agency that is an independent State commission, board, 
or other agency that has as its major function vocational 
rehabilitation or vocational and other rehabilitation of individuals 
with disabilities.
    (ii) The State agency administering or supervising the 
administration of education or vocational education in the State, 
provided that it includes a vocational rehabilitation unit as provided 
in paragraph (b) of this section.
    (iii) A State agency that includes a vocational rehabilitation 
unit, as provided in paragraph (b) of this section, and at least two 
other major organizational units, each of which administers one or more 
of the State's major programs of public education, public health, 
public welfare, or labor.
    (2) American Samoa. In the case of American Samoa, the State plan 
must designate the Governor.
    (3) Designated State agency for individuals who are blind. If a 
State commission or other agency that provides assistance or services 
to individuals who are blind is authorized under State law to provide 
vocational rehabilitation services to individuals who are blind, and 
this commission or agency is primarily concerned with vocational 
rehabilitation or includes a vocational rehabilitation unit as provided 
in paragraph (b) of this section, the State plan may designate that 
agency as the sole State agency to administer the part of the plan 
under which vocational rehabilitation services are provided for 
individuals who are blind or to supervise its administration in a 
political subdivision of the State by a sole local agency.
    (b) Designation of State unit. (1) If the designated State agency 
is of the type 

[[Page 64505]]
specified in paragraph (a)(1)(ii) or (a)(1)(iii) of this section, or if 
the designated State agency specified in paragraph (a)(3) of this 
section does not have as its major function vocational rehabilitation 
or vocational and other rehabilitation of individuals with 
disabilities, the State plan must assure that the agency (or each 
agency if two agencies are designated) includes a vocational 
rehabilitation bureau, division, or unit that--
    (i) Is primarily concerned with vocational rehabilitation or 
vocational and other rehabilitation of individuals with disabilities 
and is responsible for the administration of the State agency's 
vocational rehabilitation program under the State plan, including those 
responsibilities specified in paragraph (d) of this section;
    (ii) Has a full-time director;
    (iii) Has a staff, at least 90 percent of whom are employed full 
time on the rehabilitation work of the organizational unit; and
    (iv) Is located at an organizational level and has an 
organizational status within the State agency comparable to that of 
other major organizational units of the agency or, in the case of an 
agency described in paragraph (a)(1)(ii) of this section, is so located 
and has that status or has a director who is the executive officer of 
the State agency.
    (2) In the case of a State that has not designated a separate State 
agency for individuals who are blind, as provided for in paragraph 
(a)(3) of this section, the State may assign responsibility for the 
part of the plan under which vocational rehabilitation services are 
provided to individuals who are blind to one organizational unit of the 
designated State agency and may assign responsibility for the rest of 
the plan to another organizational unit of the designated State agency, 
with the provisions of paragraph (b)(1) of this section applying 
separately to each of these units.
    (c) Responsibility for administration. The State plan must assure 
that all decisions affecting eligibility for vocational rehabilitation 
services, the nature and scope of available services, and the provision 
of these services are made by the designated State unit or the sole 
local agency under the supervision of the State unit. This 
responsibility may not be delegated to any other agency or individual.

(Authority: Sections 101(a)(1) and 101(a)(2) of the Act; 29 U.S.C. 
721(a)(1) and 721(a)(2))

Sec. 361.14   Substitute State agency.

    (a) General provisions.
    (1) If the Secretary has withheld all funding from a State under 
Sec. 361.11, the State may designate another agency to substitute for 
the designated State agency in carrying out the State's program of 
vocational rehabilitation services.
    (2) Any public or nonprofit private organization or agency within 
the State or any political subdivision of the State is eligible to be a 
substitute agency.
    (3) The substitute agency shall submit a State plan that meets the 
requirements of this part.
    (4) The Secretary makes no grant to a substitute agency until the 
Secretary approves its plan.
    (b) Substitute agency matching share. The Secretary does not make 
any payment to a substitute agency unless it has provided assurances 
that it will contribute the same matching share as the State would have 
been required to contribute if the State agency were carrying out the 
vocational rehabilitation program.

(Authority: Section 107(c)(3) of the Act; 29 U.S.C. 727(c)(3))

Sec. 361.15   Local administration.

    (a) If the State plan provides for local administration, it must--
    (1) Identify each local agency;
    (2) Assure that each local agency is under the supervision of the 
designated State unit and is the sole local agency responsible for the 
administration of the program within the political subdivision that it 
serves; and
    (3) Describe the methods each local agency will use to administer 
the vocational rehabilitation program, in accordance with the State 
plan.
    (b) A separate local agency serving individuals who are blind may 
administer that part of the plan relating to vocational rehabilitation 
of individuals who are blind, under the supervision of the designated 
State unit for individuals who are blind.

(Authority: Section 101(a)(1)(A) of the Act; 29 U.S.C. 721(a)(1)(A))

Sec. 361.16   Establishment of an independent commission or a State 
Rehabilitation Advisory Council.

    (a) General requirement. Except as provided in paragraph (b) of 
this section, the State plan must contain one of the following two 
assurances:
    (1) An assurance that the State agency is an independent State 
commission that--
    (i) Is primarily concerned with vocational rehabilitation or 
vocational and other rehabilitation services, in accordance with 
Sec. 361.13(a)(1)(i);
    (ii) Is consumer-controlled by persons who--
    (A) Are individuals with physical or mental impairments that 
substantially limit major life activities; and
    (B) Represent individuals with a broad range of disabilities;
    (iii) Includes individuals representing family members, advocates, 
and authorized representatives of individuals with mental impairments; 
and
    (iv) Conducts a review and analysis of the effectiveness of and 
consumer satisfaction with vocational rehabilitation services and 
providers in the State, in accordance with the provisions in 
Sec. 361.17(h)(3).
    (2) An assurance that--
    (i) The State has established a State Rehabilitation Advisory 
Council (Council) that meets the requirements of Sec. 361.17;
    (ii) The designated State unit seeks and seriously considers, on a 
regular and ongoing basis, advice from the Council regarding the 
development, implementation, and amendment of the State plan, the 
strategic plan, and other policies and procedures of general 
applicability pertaining to the provision of vocational rehabilitation 
services in the State;
    (iii) The designated State unit transmits to the Council--
    (A) All plans, reports, and other information required under the 
Act to be submitted to the Secretary;
    (B) Copies of all written policies, practices, and procedures of 
general applicability provided to or used by rehabilitation personnel; 
and
    (C) Copies of due process hearing decisions in a manner that 
preserves the confidentiality of the participants in the hearings; and
    (iv) The State plan summarizes annually the advice provided by the 
Council, including recommendations from the annual report of the 
Council, the survey of consumer satisfaction, and other reports 
prepared by the Council, and the State agency's response to the advice 
and recommendations, including the manner in which the State will 
modify its policies and procedures based on the survey of consumer 
satisfaction and explanations of reasons for rejecting any advice or 
recommendations of the Council.
    (b) Exception for separate State agency for individuals who are 
blind. In the case of a State that designates a separate State agency, 
under Sec. 361.13(a)(3), to administer the part of the State plan under 
which vocational rehabilitation services are provided to individuals 
who are blind, the State plan must contain one of the following four 
assurances:
    (1) An assurance that an independent commission in accordance with 
paragraph (a)(1) of this section is responsible under State law for 

[[Page 64506]]
operating or overseeing the operation of the vocational rehabilitation 
program of both the State agency that administers the part of the State 
plan under which vocational rehabilitation services are provided to 
individuals who are blind and the State agency that administers the 
remainder of the State plan.
    (2) An assurance that--
    (i) An independent commission that is consumer-controlled by, and 
represents the interests of, individuals who are blind and conducts a 
review and analysis of the effectiveness of and consumer satisfaction 
with vocational rehabilitation services and providers, in accordance 
with the provisions of Sec. 361.17(h)(3), is responsible under State 
law for operating, or overseeing the operation of, the vocational 
rehabilitation program in the State for individuals who are blind; and
    (ii) An independent commission that is consumer-controlled in 
accordance with paragraph (a)(1)(i) of this section and conducts a 
review and analysis of the effectiveness of and consumer satisfaction 
with vocational rehabilitation services and providers, in accordance 
with Sec. 361.17(h)(3), is responsible under State law for operating, 
or overseeing the operation of, the vocational rehabilitation program 
in the State for all individuals with disabilities, except individuals 
who are blind.
    (3) An assurance that--
    (i) An independent commission that is consumer-controlled by, and 
represents the interests of, individuals who are blind and that 
conducts a review and analysis of the effectiveness of and consumer 
satisfaction with vocational rehabilitation services and providers, in 
accordance with Sec. 361.17(h)(3), is responsible under State law for 
operating, or overseeing the operation of, the vocational 
rehabilitation program in the State for individuals who are blind; and
    (ii) The State has established a State Rehabilitation Advisory 
Council that meets the criteria in Sec. 361.17 and carries out the 
duties of a Council with respect to functions for, and services 
provided to, individuals with disabilities, except for individuals who 
are blind.
    (4) An assurance that--
    (i) An independent commission that is consumer-controlled in 
accordance with paragraph (a)(1)(i) of this section and conducts a 
review and analysis of the effectiveness of and consumer satisfaction 
with vocational rehabilitation services and providers, in accordance 
with the provisions of Sec. 361.17(h)(3), is responsible under State 
law for operating or overseeing the operation of the vocational 
rehabilitation services for all individuals in the State, except 
individuals who are blind; and
    (ii) The State has established a State Rehabilitation Advisory 
Council that meets the criteria in Sec. 361.17 and carries out the 
duties of a Council with respect to functions for, and services 
provided to, individuals who are blind.

(Authority: Sections 101(a)(32) and 101(a)(36) of the Act; 29 U.S.C. 
721(a)(32) and 721(a)(36))

Sec. 361.17   Requirements for a State Rehabilitation Advisory Council.

    If the State plan contains an assurance that the State ha
FR Doc. 95-30344 The State Vocational Rehabilitation Services Program
s 
established a Council under Sec. 361.16(a)(2), (b)(3)(ii), or 
(b)(4)(ii), the State plan must also contain an assurance that the 
Council meets the following requirements:
    (a) Appointment. (1) The members of the Council shall be--
    (i) Appointed by the Governor; or
    (ii) If State law vests appointment authority in an entity other 
than, or in conjunction with, the Governor (such as one or more houses 
of the State legislature or an independent board that has general 
appointment authority), appointed by that entity or entities.
    (2) The appointing authority shall select members of the Council 
after soliciting recommendations from representatives of organizations 
representing a broad range of individuals with disabilities and 
organizations interested in individuals with disabilities.
    (b) Composition. (1) General. Except as provided in paragraph 
(b)(3) of this section, the Council shall be composed of at least 13 
members, including--
    (i) At least one representative of the Statewide Independent Living 
Council, who must be the chairperson of, or other individual 
recommended by, the Statewide Independent Living Council;
    (ii) At least one representative of a parent training and 
information center established pursuant to section 631(e)(1) of IDEA;
    (iii) At least one representative of the Client Assistance Program 
(CAP), established under 34 CFR part 370, who must be the director of, 
or other individual recommended by, the CAP;
    (iv) At least one vocational rehabilitation counselor with 
knowledge of and experience with vocational rehabilitation programs who 
serves as an ex officio, nonvoting member if employed by the designated 
State agency;
    (v) At least one representative of community rehabilitation program 
service providers;
    (vi) Four representatives of business, industry, and labor;
    (vii) Representatives of disability groups that include a cross 
section of--
    (A) Individuals with physical, cognitive, sensory, and mental 
disabilities; and
    (B) Parents, family members, guardians, advocates, or authorized 
representatives of individuals with disabilities who have difficulty 
representing themselves due to their disabilities;
    (viii) Current or former applicants for, or recipients of, 
vocational rehabilitation services; and
    (ix) The director of the designated State unit as an ex officio, 
nonvoting member.
    (2) Employees of the designated State agency. Employees of the 
designated State agency may serve only as nonvoting members of the 
Council.
    (3) Composition of a separate Council for a separate State agency 
for individuals who are blind. Except as provided in paragraph (b)(4) 
of this section, if the State establishes a separate Council for a 
separate State agency for individuals who are blind, that Council 
must--
    (i) Conform with all of the composition requirements for a Council 
under paragraph (b)(1) of this section, except the requirements in 
paragraph (b)(1)(vii), unless the exception in paragraph (b)(4) of this 
section applies; and
    (ii) Include--
    (A) At least one representative of a disability advocacy group 
representing individuals who are blind; and
    (B) At least one parent, family member, guardian, advocate, or 
authorized representative of an individual who is blind, has multiple 
disabilities, and has difficulty representing himself or herself due to 
disabilities.
    (4) Exception. If State law in effect on October 29, 1992 requires 
a separate Council under paragraph (b)(3) of this section to have fewer 
than 13 members, the separate Council is deemed to be in compliance 
with the composition requirements in paragraphs (b)(1)(vi) and 
(b)(1)(viii) of this section if it includes at least one representative 
who meets the requirements for each of those paragraphs.
    (c) Majority. A majority of the Council members shall be 
individuals with disabilities who are not employed by the designated 
State unit.
    (d) Chairperson. The chairperson shall be--
    (1) Selected by the members of the Council from among the voting 
members of the Council, subject to the veto power of the Governor; or

[[Page 64507]]

    (2) If the Governor does not have veto power pursuant to State law, 
selected by the Governor, or by the Council if required by the 
Governor, from among the voting members of the Council.
    (e) Terms of appointment. (1) Each member of the Council shall be 
appointed for a term of no more than three years and may serve for no 
more than two consecutive full terms.
    (2) A member appointed to fill a vacancy occurring prior to the end 
of the term for which the predecessor was appointed shall be appointed 
for the remainder of the predecessor's term.
    (3) The terms of service of the members initially appointed must be 
for varied numbers of years to ensure that terms expire on a staggered 
basis.
    (f) Vacancies. (1) A vacancy in the membership of the Council must 
be filled in the same manner as the original appointment.
    (2) No vacancy affects the power of the remaining members to 
execute the duties of the Council.
    (g) Conflict of interest. No member of the Council shall cast a 
vote on any matter that would provide direct financial benefit to the 
member or the member's organization or otherwise give the appearance of 
a conflict of interest under State law.
    (h) Functions. The Council shall--
    (1) Review, analyze, and advise the designated State unit regarding 
the performance of the State unit's responsibilities under this part, 
particularly responsibilities related to--
    (i) Eligibility, including order of selection;
    (ii) The extent, scope, and effectiveness of services provided; and
    (iii) Functions performed by State agencies that affect or 
potentially affect the ability of individuals with disabilities to 
achieve rehabilitation goals and objectives under this part;
    (2) Advise and, at the discretion of the State agency, assist the 
State unit in the preparation of applications, the State plan, the 
strategic plan, and amendments to the plans, reports, needs 
assessments, and evaluations required by this part;
    (3) To the extent feasible, conduct a review and analysis of the 
effectiveness of, and consumer satisfaction with--
    (i) The functions performed by State agencies and other public and 
private entities responsible for serving individuals with disabilities; 
and
    (ii) The vocational rehabilitation services provided by State 
agencies and other public and private entities responsible for 
providing vocational rehabilitation services to individuals with 
disabilities from funds made available under the Act or through other 
public or private sources;
    (4) Prepare and submit to the Governor, or appropriate State 
entity, and to the Secretary no later than 90 days after the end of the 
Federal fiscal year an annual report on the status of vocational 
rehabilitation programs operated within the State and make the report 
available to the public through appropriate modes of communication;
    (5) Coordinate with other councils within the State, including the 
Statewide Independent Living Council established under 34 CFR part 364, 
the advisory panel established under section 613(a)(12) of IDEA, the 
State Planning Council described in section 124 of the Developmental 
Disabilities Assistance and Bill of Rights Act, and the State mental 
health planning council established under section 1916(e) of the Public 
Health Service Act;
    (6) Advise the designated State agency and provide for coordination 
and the establishment of working relationships between the designated 
State agency and the Statewide Independent Living Council and centers 
for independent living within the State; and
    (7) Perform other comparable functions, consistent with the purpose 
of this part, that the Council determines to be appropriate.
    (i) Resources.
    (1) The Council, in conjunction with the designated State unit, 
shall prepare a plan for the provision of resources, including staff 
and other personnel, that may be necessary for the Council to carry out 
its functions under this part.
    (2) In implementing the resources plan, the Council must rely on 
existing resources to the maximum extent possible.
    (3) Any disagreements between the designated State unit and the 
Council regarding the amount of resources necessary must be resolved by 
the Governor or other appointing entity, consistent with paragraphs 
(i)(1) and (2) of this section.
    (4) The Council shall, consistent with State law, supervise and 
evaluate the staff and personnel that are necessary to carry out its 
functions.
    (5) Those staff and personnel that are assisting the Council in 
carrying out its functions may not be assigned duties by the designated 
State unit or any other agency or office of the State that would create 
a conflict of interest.
    (j) Meetings. The Council shall--
    (1) Convene at least four meetings a year to conduct Council 
business that are publicly announced, open and accessible to the 
public, including individuals with disabilities, unless there is a 
valid reason for an executive session; and
    (2) Conduct forums or hearings, as appropriate, that are publicly 
announced, open and accessible to the public, including individuals 
with disabilities.
    (k) Compensation. Funds appropriated under Title I of the Act, 
except funds to carry out sections 112 and 130 of the Act, may be used 
to compensate and reimburse the expenses of Council members in 
accordance with section 105(g) of the Act.

(Authority: Section 105 of the Act; 29 U.S.C. 725)

Sec. 361.18  Comprehensive system of personnel development.

    The State plan must describe the procedures and activities the 
State agency will undertake to establish and maintain a comprehensive 
system of personnel development designed to ensure an adequate supply 
of qualified rehabilitation personnel, including professionals and 
paraprofessionals, for the designated State unit. If the State agency 
has a State Rehabilitation Advisory Council, this description must, at 
a minimum, provide for the involvement of the Council in the 
development of personnel standards in accordance with paragraph (c) of 
this section. This description must also conform with the following 
requirements:
    (a) Data system on personnel and personnel development. The State 
plan must describe the development and maintenance of a system by the 
State agency for collecting and analyzing on an annual basis data on 
qualified personnel needs and personnel development, in accordance with 
the following requirements:
    (1) Data on qualified personnel needs must include--
    (i) The number of personnel who are employed by the State agency in 
the provision of vocational rehabilitation services in relation to the 
number of individuals served, broken down by personnel category;
    (ii) The number of personnel currently needed by the State agency 
to provide vocational rehabilitation services, broken down by personnel 
category; and
    (iii) Projections of the number of personnel, broken down by 
personnel category, who will be needed by the State agency to provide 
vocational rehabilitation services in the State in five years based on 
projections of the number of individuals to be served, including 
individuals with severe disabilities, the number of personnel 

[[Page 64508]]
expected to retire or leave the field, and other relevant factors.
    (2) Data on personnel development must include--
    (i) A list of the institutions of higher education in the State 
that are preparing vocational rehabilitation professionals, by type of 
program;
    (ii) The number of students enrolled at each of those institutions, 
broken down by type of program; and
    (iii) The number of students who graduated during the prior year 
from each of those institutions with certification or licensure, or 
with the credentials for certification or licensure, broken down by the 
personnel category for which they have received, or have the 
credentials to receive, certification or licensure.
    (b) Plan for recruitment, preparation, and retention of qualified 
personnel. The State plan must describe the development, updating, and 
implementation of a plan to address the current and projected needs for 
personnel who are qualified in accordance with paragraph (c) of this 
section. The plan must identify the personnel needs based on the data 
collection and analysis system described in paragraph (a) of this 
section and must provide for the coordination and facilitation of 
efforts between the designated State unit and institutions of higher 
education and professional associations to recruit, prepare, and retain 
personnel who are qualified in accordance with paragraph (c) of this 
section, including personnel from minority backgrounds and personnel 
who are individuals with disabilities.
    (c) Personnel standards. (1) The State plan must include the State 
agency's policies and describe the procedures the State agency will 
undertake to establish and maintain standards to ensure that 
professional and paraprofessional personnel needed within the State 
unit to carry out this part are appropriately and adequately prepared 
and trained, including--
    (i) Standards that are consistent with any national or State-
approved or recognized certification, licensing, registration, or other 
comparable requirements (including State personnel requirements) that 
apply to the profession or discipline in which that category of 
personnel is providing vocational rehabilitation services; and
    (ii) To the extent those standards are not based on the highest 
requirements in the State applicable to that profession or discipline, 
the steps the State is currently taking and the steps the State plans 
to take to retrain or hire personnel to meet standards that are based 
on the highest requirements in the State, including measures to notify 
State unit personnel, the institutions of higher education identified 
under paragraph (a)(2)(i) of this section, and other public agencies of 
these steps and the timelines for taking each step.
    (2) As used in this section--
    (i) ``Highest requirements in the State applicable to that 
profession or discipline'' means the highest entry-level academic 
degree or equivalent experience needed for any national or State-
approved or recognized certification, licensing, registration, or other 
comparable requirements that apply to that profession or discipline. 
The current requirements of all State statutes and regulations of other 
agencies in the State applicable to that profession or discipline must 
be considered and must be kept on file by the designated State unit and 
available to the public.
    (ii) ``Profession or discipline'' means a specific occupational 
category, including any paraprofessional occupational category, that--
    (A) Provides rehabilitation services to individuals with 
disabilities;
    (B) Has been established or designated by the State; and
    (C) Has a specified scope of responsibility.
    (d) Staff development. (1) The State plan must include the State 
agency's policies and describe the procedures and activities the State 
agency will undertake to ensure that all personnel employed by the 
State unit receive appropriate and adequate training, including a 
description of--
    (i) A system of staff development for rehabilitation professionals 
and paraprofessionals within the State unit, particularly with respect 
to rehabilitation technology; and
    (ii) Procedures for acquiring and disseminating to rehabilitation 
professionals and paraprofessionals within the designated State unit 
significant knowledge from research and other sources, including 
procedures for providing training regarding the amendments to the 
Rehabilitation Act of 1973 made by the Rehabilitation Act Amendments of 
1992.
    (2) The specific training areas for staff development must be based 
on the needs of each State unit and may include, but are not limited 
to, training with respect to the requirements of the Americans with 
Disabilities Act, IDEA, and Social Security work incentive programs, 
training to facilitate informed choice under this program, and training 
to improve the provision of services to culturally diverse populations.
    (e) Personnel to address individual communication needs. The State 
plan must describe how the State unit--
    (1) Includes among its personnel, or obtains the services of, 
individuals able to communicate in the native languages of applicants 
and eligible individuals who have limited English speaking ability; and
    (2) Includes among its personnel, or obtains the services of, 
individuals able to communicate with applicants and eligible 
individuals in appropriate modes of communication.
    (f) Performance evaluation system. The State plan must describe how 
the system for evaluating the performance of rehabilitation counselors, 
coordinators, and other personnel used in the State unit facilitates, 
and in no way impedes, the accomplishment of the purpose and policy of 
the program as described in sections 100(a)(2) and 100(a)(3) of the 
Act, including the policy of serving, among others, individuals with 
the most severe disabilities.
    (g) Coordination with personnel development under IDEA. The State 
plan must describe the procedures and activities the State agency will 
undertake to coordinate its comprehensive system of personnel 
development under the Act with personnel development under IDEA.

(Authority: Sections 101 (a)(7) and (a)(35) of the Act; 29 U.S.C. 
721 (a)(7) and (35))

    Note: Under the Act and the regulations in this part, the State 
agency is required to collect and analyze data regarding personnel 
needs by type or category of personnel. The personnel data must be 
collected and analyzed according to personnel category breakdowns 
that are based on the major categories of staff in the State unit. 
Similarly, the data from institutions of higher education must be 
broken down by type of program to correspond as closely as possible 
with the personnel categories of the State unit.

Sec. 361.19  Affirmative action for individuals with disabilities.

    The State plan must assure that the State agency takes affirmative 
action to employ and advance in employment qualified individuals with 
disabilities.

(Authority: Section 101(a)(6)(A) of the Act; 29 U.S.C. 721(a)(6)(A))

Sec. 361.20  State plan development.

    (a) Public participation requirements. (1) Plan development and 
revisions. The State plan must assure that the State unit conducts 
public meetings throughout the State to provide all segments of the 
public, including interested groups, organizations, and individuals, an 
opportunity to comment on the State plan prior to its 

[[Page 64509]]
development and to comment on any revisions to the State plan.
    (2) Notice requirements. The State plan must assure that the State 
unit, prior to conducting public meetings, provides appropriate and 
sufficient notice throughout the State of the meetings in accordance 
with--
    (i) State law governing public meetings; or
    (ii) In the absence of State law governing public meetings, 
procedures developed by the State unit in consultation with the State 
Rehabilitation Advisory Council.
    (3) Plan revisions based on consumer satisfaction surveys. The 
State plan must describe the manner in which the State plan will be 
revised based on the results of consumer satisfaction surveys conducted 
by the State Rehabilitation Advisory Council under Sec. 361.17(h)(3) or 
by the State agency if it is an independent commission in accordance 
with the requirements of Sec. 361.16.
    (b) Special consultation requirements. The State plan must assure 
that, as appropriate, the State unit actively consults in the 
development and revision of the State plan with the CAP director, the 
State Rehabilitation Advisory Council, and, as appropriate, those 
Indian tribes, tribal organizations, and native Hawaiian organizations 
that represent significant numbers of individuals with disabilities 
within the State.
    (c) Summary of public comments. The State plan must include a 
summary of the public comments on the State plan, including comments on 
revisions to the State plan and the State unit's response to those 
comments.
    (d) Appropriate modes of communication. The State unit shall 
provide, through appropriate modes of communication, the notices of the 
public meetings, any materials furnished prior to or during the public 
meetings, and the approved State plan.

(Authority: Sections 101(a)(20), 101(a)(23), 101(a)(32), and 
105(c)(2) of the Act; 29 U.S.C. 721(a)(20), (23), and (32) and 
725(c)(2))

Sec. 361.21  Consultations regarding the administration of the State 
plan.

    (a) The State plan must assure that, in connection with matters of 
general policy development and implementation arising in the 
administration of the State plan, the State unit seeks and takes into 
account the views of--
    (1) Individuals who receive vocational rehabilitation services or, 
as appropriate, the individuals' representatives;
    (2) Personnel working in the field of vocational rehabilitation;
    (3) Providers of vocational rehabilitation services;
    (4) The CAP director; and
    (5) The State Rehabilitation Advisory Council, if the State has a 
Council.
    (b) The State plan must specifically describe the manner in which 
the State unit will take into account the views regarding State policy 
and administration of the State plan that are expressed in the consumer 
satisfaction surveys conducted by the State Rehabilitation Advisory 
Council under Sec. 361.17(h)(3) or by the State agency if it is an 
independent commission in accordance with the requirements of 
Sec. 361.16(a)(1).

(Authority: Sections 101(a)(18), 101(a)(32), and 105(c)(2) of the 
Act; 29 U.S.C. 721(a)(18), 721(a)(32), and 725(c)(2))

Sec. 361.22  Cooperation with agencies responsible for transitioning 
students.

    (a) Transitioning students who are receiving special education 
services. (1) General. The State plan must contain plans, policies, and 
procedures that are designed to facilitate the transition of students 
who are receiving special education services from the provision of a 
free appropriate public education under the responsibility of an 
educational agency to the provision of vocational rehabilitation 
services under the responsibility of the designated State unit. These 
plans, policies, and procedures must be designed to facilitate the 
development and accomplishment of long-term rehabilitation goals, 
intermediate rehabilitation objectives, and goals and objectives 
related to enabling a transitioning student to live independently 
before leaving a school setting, to the extent the goals and objectives 
are included in an individualized education program of the 
transitioning student.
    (2) Formal interagency agreement. The State plan must assure that 
the State unit enters into formal interagency agreements with the State 
education agency and, as appropriate, with local education agencies, 
that are responsible for the free appropriate public education of 
transitioning students who are receiving special education services.
    (i) Formal interagency agreements must, at a minimum, identify--
    (A) Policies, practices, and procedures that can be coordinated 
between the agencies, including definitions, standards for eligibility, 
policies and procedures for making referrals, procedures for outreach 
to and identification of youth who are receiving special education 
services and are in need of transition services, and procedures and 
timeframes for evaluation and follow-up of those transitioning 
students; and
    (B) The roles of each agency, including provisions for determining 
State lead agencies and qualified personnel responsible for transition 
services.
    (ii) Formal interagency agreements may, as appropriate, identify--
    (A) Available resources, including sources of funds for the 
development and expansion of services;
    (B) The financial responsibility of each agency in providing 
services to transitioning students who are receiving special education 
services, consistent with State law;
    (C) Procedures for resolving disputes between the agencies that are 
parties to the agreement; and
    (D) All other components necessary to ensure meaningful cooperation 
among agencies, including procedures to facilitate the development of 
local teams to coordinate the provision of services to individuals, 
sharing data, and coordinating joint training of staff in the provision 
of transition services.

    Note: The following excerpt from page 33 of Senate Report No. 
102-357 further clarifies the provision of transition services by 
the State vocational rehabilitation agency:

    The committee intends that students with disabilities who are 
eligible for, and who need, vocational rehabilitation services will 
receive those services as soon as possible, consistent with Federal 
and State law. These provisions are not intended in any way to shift 
the responsibility of service delivery from education to 
rehabilitation during the transition years. School officials will 
continue to be responsible for providing a free and appropriate 
public education as defined by the IEP. The role of the 
rehabilitation system is primarily one of planning for the student's 
years after leaving school. (S. Rep. No. 357, 102d Cong., 2d. Sess. 
33 (1992))

    (b) Transitioning students who are not receiving special education 
services. The State plan must contain plans, policies, and procedures, 
including cooperation with appropriate agencies, designed to ensure 
that transitioning students who are not receiving special education 
services have access to and can receive vocational rehabilitation 
services, if appropriate, and to ensure outreach to and identification 
of those individuals.

(Authority: Sections 101(a)(11)(C), 101(a)(24) and 101(a)(30) of the 
Act; 29 U.S.C. 721 (a)(11), (a)(24), and (a)(30))

Sec. 361.23  Cooperation with other public agencies.

    (a) Coordination of services with vocational education and Javits-
Wagner-O'Day programs. The State plan must assure that specific 
arrangements or 

[[Page 64510]]
agreements are made for the coordination of services for any individual 
who is eligible for vocational rehabilitation services and is also 
eligible for services under the Carl D. Perkins Vocational and Applied 
Technology Education Act or the Javits-Wagner-O'Day Act.
    (b) Cooperation with other Federal, State, and local public 
agencies providing services related to the rehabilitation of 
individuals with disabilities. (1) The State plan must assure that the 
State unit cooperates with other Federal, State, and local public 
agencies providing services related to the rehabilitation of 
individuals with disabilities, including, as appropriate, establishing 
interagency working groups or entering into other interagency 
cooperative agreements with, and using the services and facilities of--
    (i) Federal agencies providing services related to the 
rehabilitation of individuals with disabilities, including the Social 
Security Administration, the Office of Workers' Compensation Programs 
of the Department of Labor, and the Department of Veterans Affairs; and
    (ii) State and local public agencies providing services related to 
the rehabilitation of individuals with disabilities, including State 
and local public agencies administering the State's social services and 
financial assistance programs and other State programs for individuals 
with disabilities, such as the State's developmental disabilities 
program, veterans programs, health and mental health programs, 
education programs (including adult education, higher education, and 
vocational education programs), workers' compensation programs, job 
training and placement programs, and public employment offices.
    (2) Interagency cooperation under paragraph (b)(1) of this section, 
to the extent practicable, must provide for training for staff of the 
agencies as to the availability, benefits of, and eligibility standards 
for vocational rehabilitation services.
    (3) Interagency cooperation under paragraph (b)(1) of this section 
also must identify policies, practices, and procedures that can be 
coordinated among the agencies (particularly definitions, standards for 
eligibility, the joint sharing and use of evaluations and assessments, 
and procedures for making referrals); identify available resources and 
define the financial responsibility of each agency for paying for 
necessary services (consistent with State law) and procedures for 
resolving disputes between agencies; and include all additional 
components necessary to ensure meaningful cooperation and coordination.
    (c) Reciprocal referral services with a separate agency for 
individuals who are blind. If there is a separate State unit for 
individuals who are blind, the State plan must assure that the two 
State units establish reciprocal referral services, use each other's 
services and facilities to the extent feasible, jointly plan activities 
to improve services in the State for individuals with multiple 
impairments, including visual impairments, and otherwise cooperate to 
provide more effective services, including, if appropriate, entering 
into a written cooperative agreement.

(Authority: Sections 101(a)(11) and 101(a)(22) of the Act; 29 U.S.C. 
721(a)(11) and 721(a)(22))

Sec. 361.24  Coordination with the Statewide Independent Living 
Council.

    The State plan must assure that the State unit will coordinate and 
establish working relationships with the Statewide Independent Living 
Council established under 34 CFR part 364 and with independent living 
centers within the State.

(Authority: Section 101(a)(33) of the Act; 29 U.S.C. 721(a)(33))

Sec. 361.25  Statewideness.

    The State plan must assure that services provided under the State 
plan will be available in all political subdivisions of the State, 
unless a waiver of statewideness is requested and approved in 
accordance with Sec. 361.26.

(Authority: Section 101(a)(4) of the Act; 29 U.S.C. 721(a)(4))

Sec. 361.26  Waiver of statewideness.

    (a) Availability. The State unit may provide services in one or 
more political subdivisions of the State that increase services or 
expand the scope of services that are available statewide under the 
State plan if--
    (1) The non-Federal share of the cost of these services is met from 
funds provided by a local public agency, including funds contributed to 
a local public agency by a private agency, organization, or individual;
    (2) The services are likely to promote the vocational 
rehabilitation of substantially larger numbers of individuals with 
disabilities or of individuals with disabilities with particular types 
of impairments; and
    (3) The State includes in its State plan, and the Secretary 
approves, a request for a waiver of the statewideness requirement, in 
accordance with the requirements of paragraph (b) of this section.
    (b) Request for waiver. The request for a waiver of statewideness 
must--
    (1) Identify the types of services to be provided;
    (2) Contain a written assurance from the local public agency that 
it will make available to the State unit the non-Federal share of 
funds;
    (3) Contain a written assurance that State unit approval will be 
obtained for each proposed service before it is put into effect; and
    (4) Contain a written assurance that all other State plan 
requirements, including a State's order of selection requirements, will 
apply to all services approved under the waiver.

(Authority: Section 101(a)(4) of the Act; 29 U.S.C. 721(a)(4))

Sec. 361.27  Shared funding and administration of joint programs.

    (a) In order to carry out a joint program involving shared funding 
and administrative responsibility with another State agency or a local 
public agency to provide services to individuals with disabilities, the 
designated State unit must request approval from the Secretary in the 
State plan.
    (b) If a proposed joint program does not comply with the 
statewideness requirement in Sec. 361.25, the State unit shall obtain a 
waiver of statewideness, in accordance with Sec. 361.26.

(Authority: Section 101(a)(1)(A) of the Act; 29 U.S.C. 721(a)(1)(A))

Sec. 361.28  Third-party cooperative arrangements involving funds from 
other public agencies.

    (a) If the designated State unit enters into a third-party 
cooperative arrangement for providing or administering vocational 
rehabilitation services with another State agency or a local public 
agency that is furnishing part or all of the non-Federal share, the 
State plan must assure that--
    (1) The services provided by the cooperating agency are not the 
customary or typical services provided by that agency but are new 
services that have a vocational rehabilitation focus or existing 
services that have been modified, adapted, expanded, or reconfigured to 
have a vocational rehabilitation focus;
    (2) The services provided by the cooperating agency are only 
available to applicants for, or recipients of, services from the 
designated State unit;
    (3) Program expenditures and staff providing services under the 
cooperative arrangement are under the administrative supervision of the 
designated State unit; and 

[[Page 64511]]

    (4) All State plan requirements, including a State's order of 
selection, will apply to all services provided under the cooperative 
program.
    (b) If a third party cooperative agreement does not comply with the 
statewideness requirement in Sec. 361.25, the State unit shall obtain a 
waiver of statewideness, in accordance with Sec. 361.26.

(Authority: Section 101(a)(1)(A) of the Act; 29 U.S.C. 721(a)(1)(A))

Sec. 361.29  Statewide studies and evaluations.

    (a) Statewide studies. The State plan must assure that the State 
unit conducts continuing statewide studies to determine the current 
needs of individuals with disabilities within the State and the best 
methods to meet those needs. The continuing statewide studies, at a 
minimum, must include--
    (1) A triennial comprehensive assessment, as part of the 
development of the State plan, of the rehabilitation needs of 
individuals with severe disabilities who reside in the State;
    (2) A review of the effectiveness of outreach procedures used to 
identify and serve individuals with disabilities who are minorities and 
individuals with disabilities who are unserved and underserved by the 
vocational rehabilitation system;
    (3) An annual analysis of the characteristics of individuals 
determined to be ineligible for services and the reasons for the 
ineligibility determinations; and
    (4) A review of a broad variety of methods to provide, expand, and 
improve vocational rehabilitation services to individuals with the most 
severe disabilities, including individuals receiving supported 
employment services under 34 CFR Part 363.
    (b) Annual evaluation. The State plan must assure that the State 
unit conducts an annual evaluation of the effectiveness of the State's 
vocational rehabilitation program in providing vocational 
rehabilitation and supported employment services, especially to 
individuals with the most severe disabilities. The annual evaluation 
must analyze the extent to which--
    (1) The State has achieved the goals and priorities established in 
the State plan and annual amendments to the plan;
    (2) The State has achieved the objectives of the strategic plan and 
revisions to the plan developed under Subpart D of this part;
    (3) The State is in compliance with the evaluation standards and 
performance indicators established by the Secretary, pursuant to 
section 106 of the Act; and
    (4) The State unit has adopted and is implementing procedures and 
activities to improve staff effectiveness and has made reasonable 
progress toward meeting the personnel standards established in 
accordance with Sec. 361.18(c).
    (c) Reporting requirements. (1) The State plan must describe 
annually those changes that have been adopted in policy, in the State 
plan and its amendments, and in the strategic plan and its amendments 
as a result of the statewide studies and the annual program evaluation.
    (2) The State plan must contain an annual description of the 
methods used to expand and improve vocational rehabilitation services 
to individuals with the most severe disabilities, including the State 
unit's criteria for determining which individuals are individuals with 
the most severe disabilities.
    (3) The State unit shall submit summaries or copies of the 
statewide studies and the annual evaluations as attachments to the 
State plan.
    (d) Role of the State Rehabilitation Advisory Council. The State 
plan must assure that the State unit seeks the advice of the State 
Rehabilitation Advisory Council, if the State has a Council, regarding 
the continuing statewide studies and the annual evaluation and, at the 
discretion of the State agency, seeks assistance from the Council in 
the preparation and analysis of the studies and evaluation.

(Authority: Sections 101(a)(5) (A) and (B), 101(a)(9)(D), 101(a)(15) 
(B) and (D), 101(a)(19), and 105(c)(2) of the Act; 29 U.S.C. 721(a) 
(5), (9), (15), and (19) and 725(c)(2))

Sec. 361.30  Services to special groups of individuals with 
disabilities.

    (a) Civil employees of the United States. The State plan must 
assure that vocational rehabilitation services are available to civil 
employees of the U.S. Government who are disabled in the line of duty, 
under the same terms and conditions applied to other individuals with 
disabilities.
    (b) Public safety officers. (1) The State plan must assure that 
special consideration will be given to those individuals with 
disabilities whose disability arose from an impairment sustained in the 
line of duty while performing as a public safety officer and the 
immediate cause of that impairment was a criminal act, apparent 
criminal act, or a hazardous condition resulting directly from the 
officer's performance of duties in direct connection with the 
enforcement, execution, and administration of law or fire prevention, 
firefighting, or related public safety activities.
    (2) For the purposes of paragraph (b) of this section, ``special 
consideration'' for States under an order of selection means that those 
public safety officers who meet the requirements of paragraph (b)(1) of 
this section must receive priority for services over other eligible 
individuals in the same priority category of the order of selection.
    (3) For the purposes of paragraph (b) of this section, ``criminal 
act'' means any crime, including an act, omission, or possession under 
the laws of the United States, a State, or a unit of general local 
government that poses a substantial threat of personal injury, 
notwithstanding that by reason of age, insanity, intoxication, or 
otherwise, the person engaging in the act, omission, or possession was 
legally incapable of committing a crime.
    (4) For the purposes of paragraph (b) of this section, ``public 
safety officer'' means a person serving the United States or a State or 
unit of local government, with or without compensation, in any activity 
pertaining to--
    (i) The enforcement of the criminal laws, including highway patrol, 
or the maintenance of civil peace by the National Guard or the Armed 
Forces;
    (ii) A correctional program, facility, or institution if the 
activity is potentially dangerous because of contact with criminal 
suspects, defendants, prisoners, probationers, or parolees;
    (iii) A court having criminal or juvenile delinquent jurisdiction 
if the activity is potentially dangerous because of contact with 
criminal suspects, defendants, prisoners, probationers, or parolees; or
    (iv) Firefighting, fire prevention, or emergency rescue missions.
    (c) American Indians. (1) The State plan must assure that 
vocational rehabilitation services are provided to American Indians 
with disabilities residing in the State to the same extent that these 
services are provided to other significant groups of individuals with 
disabilities residing in the State.
    (2) The State plan also must assure that the designated State unit 
continues to provide vocational rehabilitation services, including, as 
appropriate, services traditionally used by Indian tribes, to American 
Indians with disabilities who reside on reservations and are eligible 
for services by a special tribal program under 34 CFR part 371.

(Authority: Sections 7, 101(a)(13), 101(a)(20), and 130(b)(3) of the 
Act; 29 U.S.C. 706, 721(a)(13), 721(a)(20), and 750(b)(3)) 

[[Page 64512]]

Sec. 361.31  Utilization of community resources.

    The State plan must assure that, in providing vocational 
rehabilitation services, public or other vocational or technical 
training programs or other appropriate community resources are used to 
the maximum extent feasible.

(Authority: Section 101(a)(12)(A) of the Act; 29 U.S.C. 
721(a)(12)(A))

Sec. 361.32  Utilization of profitmaking organizations for on-the-job 
training in connection with selected projects.

    The State plan must assure that the State unit has the authority to 
enter into contracts with profitmaking organizations for the purpose of 
providing on-the-job training and related programs for individuals with 
disabilities under the Projects With Industry program, 34 CFR part 379, 
if it has been determined that they are better qualified to provide 
needed services than nonprofit agencies, organizations, or programs in 
the State.

(Authority: Section 101(a)(21) of the Act; 29 U.S.C. 721(a)(21))

Sec. 361.33  Utilization of community rehabilitation programs.

    (a) The State plan must assure that the designated State unit uses 
community rehabilitation programs to the maximum extent feasible to 
provide vocational rehabilitation services in the most integrated 
settings possible, consistent with the informed choices of the 
individuals.
    (b) The State plan must contain a description of--
    (1) The capacity and effectiveness of community rehabilitation 
programs, including programs under the Javits-Wagner-O'Day Act, based 
on the utilization patterns of those programs; and
    (2) The methods used to ensure the appropriate use of community 
rehabilitation programs, including methods for entering into agreements 
with the operators of those programs and for entering into cooperative 
agreements with private nonprofit vocational rehabilitation service 
providers.

(Authority: Sections 101(a)(5)(A), 101(a)(12)(B), 101(a)(15)(B), 
101(a)(27), and 101(a)(28) of the Act; 29 U.S.C. 721(a) (5), (12), 
(15), (27), and (28))

Sec. 361.34  Supported employment plan.

    (a) The State plan must assure that the State has an acceptable 
plan under 34 CFR part 363 that provides for the use of funds under 
that part to supplement funds under this part for the cost of services 
leading to supported employment.
    (b) The supported employment plan, including annual revisions, must 
be submitted as a supplement to the State plan.

(Authority: Sections 101(a)(25) and 635(a) of the Act; 29 U.S.C. 
721(a)(25))

Sec. 361.35  Strategic plan.

    (a) The State plan must assure that the State--
    (1) Has developed and implemented a strategic plan for expanding 
and improving vocational rehabilitation services for individuals with 
disabilities on a statewide basis in accordance with subpart D of this 
part; and
    (2) Will use at least 1.5 percent of its allotment under this 
program for expansion and improvement activities in accordance with 
Sec. 361.73(b).
    (b) The strategic plan must be submitted as a supplement to the 
State plan.

(Authority: Sections 101(a)(34) and 120 of the Act; 29 U.S.C. 
721(a)(34) and 740)

Sec. 361.36  [Reserved]

Sec. 361.37  Establishment and maintenance of information and referral 
resources.

    (a) General provisions. The State plan must assure that--
    (1) The designated State unit will establish and maintain 
information and referral programs adequate to ensure that individuals 
with disabilities within the State are given accurate information about 
State vocational rehabilitation services, independent living services, 
vocational rehabilitation services available from other agencies, 
organizations, and community rehabilitation programs, and, to the 
extent possible, other Federal and State services and programs that 
assist individuals with disabilities, including client assistance and 
other protection and advocacy programs;
    (2) The State unit will refer individuals with disabilities to 
other appropriate Federal and State programs that might be of benefit 
to them; and
    (3) The State unit will use existing information and referral 
systems in the State to the greatest extent possible.
    (b) Appropriate modes of communication. The State plan further must 
assure that information and referral programs use appropriate modes of 
communication.
    (c) Special Circumstances. If the State unit is operating under an 
order of selection for services, the State unit may elect to establish 
an expanded information and referral program that includes referral for 
job placements for those eligible individuals who are not in the 
priority category or categories to receive vocational rehabilitation 
services under the State's order of selection. If a State unit elects 
to establish this kind of program, the State plan must include--
    (1) A description of how the expanded information and referral 
program will be established and how it will function, including the 
level of commitment of State unit staff and resources;
    (2) An assurance that, in carrying out this program, the State unit 
will not use case services funds that are needed to provide vocational 
rehabilitation services under individualized written rehabilitation 
programs for eligible individuals in the priority category or 
categories receiving services under the State unit's order of 
selection; and
    (3) A description of the method to be used by the State unit to 
track the results of the expanded information and referral program, 
including the State unit's procedures for identifying those eligible 
individuals who achieve an employment outcome through participation in 
the expanded information and referral program.

(Authority: Section 101(a)(22) of the Act; 29 U.S.C. 721(a)(22))

Sec. 361.38  Protection, use, and release of personal information.

    (a) General provisions.
    (1) The State plan must assure that the State agency and the State 
unit will adopt and implement policies and procedures to safeguard the 
confidentiality of all personal information, including photographs and 
lists of names. These policies and procedures must assure that--
    (i) Specific safeguards protect current and stored personal 
information;
    (ii) All applicants and eligible individuals and, as appropriate, 
those individuals' representatives, service providers, cooperating 
agencies, and interested persons are informed through appropriate modes 
of communication of the confidentiality of personal information and the 
conditions for accessing and releasing this information;
    (iii) All applicants or their representatives are informed about 
the State unit need to collect personal information and the policies 
governing its use, including--
    (A) Identification of the authority under which information is 
collected;
    (B) Explanation of the principal purposes for which the State unit 
intends to use or release the information;
    (C) Explanation of whether providing requested information to the 
State unit is mandatory or voluntary and the 

[[Page 64513]]
effects of not providing requested information;
    (D) Identification of those situations in which the State unit 
requires or does not require informed written consent of the individual 
before information may be released; and
    (E) Identification of other agencies to which information is 
routinely released;
    (iv) An explanation of State policies and procedures affecting 
personal information will be provided to each individual in that 
individual's native language or through the appropriate mode of 
communication; and
    (v) These policies and procedures provide no fewer protections for 
individuals than State laws and regulations.
    (2) The State unit may establish reasonable fees to cover 
extraordinary costs of duplicating records or making extensive searches 
and shall establish policies and procedures governing access to 
records.
    (b) State program use. All personal information in the possession 
of the State agency or the designated State unit must be used only for 
the purposes directly connected with the administration of the 
vocational rehabilitation program. Information containing identifiable 
personal information may not be shared with advisory or other bodies 
that do not have official responsibility for administration of the 
program. In the administration of the program, the State unit may 
obtain personal information from service providers and cooperating 
agencies under assurances that the information may not be further 
divulged, except as provided under paragraphs (c), (d), and (e) of this 
section.
    (c) Release to applicants and eligible individuals. (1) Except as 
provided in paragraphs (c)(2) and (c)(3) of this section, if requested 
in writing by an applicant or eligible individual, the State unit shall 
release all requested information in that individual's record of 
services to the individual or the individual's representative in a 
timely manner.
    (2) Medical, psychological, or other information that the State 
unit determines may be harmful to the individual may not be released 
directly to the individual, but must be provided through a third party 
chosen by the individual, which may include, among others, an advocate, 
a family member, or a qualified medical or mental health professional.
    (3) If personal information has been obtained from another agency 
or organization, it may be released only by, or under the conditions 
established by, the other agency or organization.
    (d) Release for audit, evaluation, and research. Personal 
information may be released to an organization, agency, or individual 
engaged in audit, evaluation, or research only for purposes directly 
connected with the administration of the vocational rehabilitation 
program, or for purposes that would significantly improve the quality 
of life for applicants and eligible individuals and only if the 
organization, agency, or individual assures that--
    (1) The information will be used only for the purposes for which it 
is being provided;
    (2) The information will be released only to persons officially 
connected with the audit, evaluation, or research;
    (3) The information will not be released to the involved 
individual;
    (4) The information will be managed in a manner to safeguard 
confidentiality; and
    (5) The final product will not reveal any personal identifying 
information without the informed written consent of the involved 
individual or the individual's representative.
    (e) Release to other programs or authorities. (1) Upon receiving 
the informed written consent of the individual or, if appropriate, the 
individual's representative, the State unit may release personal 
information to another agency or organization for its program purposes 
only to the extent that the information may be released to the involved 
individual or the individual's representative and only to the extent 
that the other agency or organization demonstrates that the information 
requested is necessary for its program.
    (2) Medical or psychological information that the State unit 
determines may be harmful to the individual may be released if the 
other agency or organization assures the State unit that the 
information will be used only for the purpose for which it is being 
provided and will not be further released to the individual.
    (3) The State unit shall release personal information if required 
by Federal law or regulations.
    (4) The State unit shall release personal information in response 
to investigations in connection with law enforcement, fraud, or abuse, 
unless expressly prohibited by Federal or State laws or regulations, 
and in response to an order issued by a judicial officer.
    (5) The State unit also may release personal information in order 
to protect the individual or others if the individual poses a threat to 
his or her safety or to the safety of others.

(Authority: Sections 12(c) and 101(a)(6)(A) of the Act; 29 U.S.C. 
711(c) and 721(a)(6)(A))

Sec. 361.39  State-imposed requirements.

    The State plan must assure that the designated State unit 
identifies upon request those regulations and policies relating to the 
administration or operation of its vocational rehabilitation program 
that are State-imposed, including any regulations or policy based on 
State interpretation of any Federal law, regulations, or guideline.

(Authority: Section 17 of the Act; 29 U.S.C. 716)

Sec. 361.40  Reports.

    The State plan must assure that the State unit--
    (a) Will submit reports in the form and detail and at the time 
required by the Secretary, including reports required under sections 
13, 14, and 101(a)(10) of the Act; and
    (b) Will comply with any requirements necessary to ensure the 
correctness and verification of those reports.

(Authority: Section 101(a)(10) of the Act; 29 U.S.C. 721(a)(10))

State Plan Content: Provision and Scope of Services

Sec. 361.41  Processing referrals and applications.

    (a) Referrals. The State plan must assure that the designated State 
unit has established and implemented standards for the prompt and 
equitable handling of referrals of individuals for vocational 
rehabilitation services. The standards must include timelines for 
making good faith efforts to inform these individuals of application 
requirements and to gather information necessary to initiate an 
assessment for determining eligibility and priority for services.
    (b) Applications. (1) The State plan must assure that once an 
individual has submitted an application for vocational rehabilitation 
services, an eligibility determination will be made within 60 days, 
unless--
    (i) Exceptional and unforeseen circumstances beyond the control of 
the agency preclude a determination within 60 days and the individual 
is so notified and agrees that an extension of time is warranted; or
    (ii) An extended evaluation is necessary, in accordance with 
Sec. 361.42(d).
    (2) An individual is considered to have submitted an application 
when the individual or the individual's representative, as appropriate, 
has completed and signed an agency application form or has otherwise 
requested services and has provided 

[[Page 64514]]
information necessary to initiate an assessment to determine 
eligibility and priority for services.
    (3) The designated State unit shall ensure that its application 
forms are widely available throughout the State.

(Authority: Sections 101(a)(6)(A) and 102(a)(5)(A) of the Act; 29 
U.S.C. 721(a)(6)(A) and 722(a)(5)(A))

Sec. 361.42  Assessment for determining eligibility and priority for 
services.

    The State plan must assure that, in order to determine whether an 
individual is eligible for vocational rehabilitation services and the 
individual's priority under an order of selection for services (if the 
State is operating under an order of selection), the designated State 
unit will conduct an assessment for determining eligibility and 
priority for services. The assessment must be conducted in the most 
integrated setting possible, consistent with the individual's needs and 
informed choice, and in accordance with the following provisions:
    (a) Eligibility requirements. (1) Basic requirements. The State 
plan must assure that the State unit's determination of an applicant's 
eligibility for vocational rehabilitation services is based only on the 
following requirements:
    (i) A determination that the applicant has a physical or mental 
impairment, as determined by qualified personnel licensed or certified 
in accordance with State law or regulation.
    (ii) A determination that the applicant's physical or mental 
impairment constitutes or results in a substantial impediment to 
employment for the applicant.
    (iii) A determination, in accordance with paragraph (a)(2) of this 
section, that the applicant can benefit in terms of an employment 
outcome from the provision of vocational rehabilitation services.
    (iv) A determination that the applicant requires vocational 
rehabilitation services to prepare for, enter into, engage in, or 
retain gainful employment consistent with the applicant's strengths, 
resources, priorities, concerns, abilities, capabilities, and informed 
choice.
    (2) Presumption of benefit. The State plan must assure that the 
designated State unit will presume that an applicant who meets the 
eligibility requirements in paragraphs (a)(1) (i) and (ii) of this 
section can benefit in terms of an employment outcome unless it 
determines, based on clear and convincing evidence, that the applicant 
is incapable of benefitting in terms of an employment outcome from 
vocational rehabilitation services.
    (3) Limited presumption for Social Security beneficiaries. The 
State plan must assure that, if an applicant has appropriate evidence, 
such as an award letter, that establishes the applicant's eligibility 
for Social Security benefits under Title II or Title XVI of the Social 
Security Act, the designated State unit will presume that the 
applicant--
    (i) Meets the eligibility requirements in paragraphs (a)(1) (i) and 
(ii) of this section; and
    (ii) Has a severe physical or mental impairment that seriously 
limits one or more functional capacities in terms of an employment 
outcome.
    (b) Prohibited factors. The State plan must assure that--
    (1) No duration of residence requirement is imposed that excludes 
from services any applicant who is present in the State;
    (2) No applicant or group of applicants is excluded or found 
ineligible solely on the basis of the type of disability;
    (3) The eligibility requirements are applied without regard to the 
age, gender, race, color, creed, or national origin of the applicant; 
and
    (4) The eligibility requirements are applied without regard to the 
particular service needs or anticipated cost of services required by an 
applicant or the income level of an applicant or applicant's family.
    (c) Review and assessment of data for eligibility determination. 
Except as provided in paragraph (d) of this section, the designated 
State unit shall base its determination of each of the basic 
eligibility requirements in paragraph (a) of this section on--
    (1) A review and assessment of existing data, including counselor 
observations, education records, information provided by the individual 
or the individual's family, information used by the Social Security 
Administration, and determinations made by officials of other agencies; 
and
    (2) To the extent existing data do not describe the current 
functioning of the individual or are unavailable, insufficient, or 
inappropriate to make an eligibility determination, an assessment of 
additional data resulting from the provision of vocational 
rehabilitation services, including assistive technology devices and 
services and worksite assessments, that are necessary to determine 
whether an individual is eligible.
    (d) Extended evaluation for individuals with severe disabilities.  
(1) Prior to any determination that an individual with a severe 
disability is incapable of benefitting from vocational rehabilitation 
services in terms of an employment outcome because of the severity of 
that individual's disability, the State unit shall conduct an extended 
evaluation to determine whether or not there is clear and convincing 
evidence to support such a determination.
    (2) During the extended evaluation period, which may not exceed 18 
months, vocational rehabilitation services must be provided in the most 
integrated setting possible, consistent with the informed choice of the 
individual.
    (3) During the extended evaluation period, the State unit shall 
develop a written plan for determining eligibility and for determining 
the nature and scope of services required to achieve an employment 
outcome. The State unit may provide during this period only those 
services that are necessary to make these two determinations.
    (4) The State unit shall assess the individual's progress as 
frequently as necessary, but at least once every 90 days, during the 
extended evaluation period.
    (5) The State unit shall terminate extended evaluation services at 
any point during the 18-month extended evaluation period if the State 
unit determines that--
    (i) There is sufficient evidence to conclude that the individual 
can benefit from the provision of vocational rehabilitation services in 
terms of an employment outcome; or
    (ii) There is clear and convincing evidence that the individual is 
incapable of benefitting from vocational rehabilitation services in 
terms of an employment outcome.
    (e) Data for determination of priority for services under an order 
of selection. If the State unit is operating under an order of 
selection for services, as provided in Sec. 361.36, the State unit 
shall base its priority assignments on--
    (1) A review of the data that was developed under paragraphs (c) 
and (d) of this section to make the eligibility determination; and
    (2) An assessment of additional data, to the extent necessary.

(Authority: Sections 7(22)(A)(ii), 7(22)(C)(iii), 101(a)(9)(A), 
101(a)(14), 101(a)(31), 102(a)(1), 102(a)(2), 102(a)(3), and 
102(a)(4) of the Act; 29 U.S.C. 706(22)(A)(ii), 706(22)(C)(iii), 
721(a)(9)(a), 721(a)(14), 721(a)(31), 722(a)(1), 722(a)(2), 
722(a)(3), and 722(a)(4))

    Note: ``Clear and convincing evidence'' means that the 
designated State unit must have a high degree of certainty before it 
can conclude that an individual is incapable of benefitting from 
services in terms of an employment outcome. The ``clear and 
convincing'' standard constitutes the highest standard used in our 
civil system of law and 

[[Page 64515]]
is to be individually applied on a case-by-case basis. The term 
``clear'' means unequivocal. Given these requirements, a review of 
existing information generally would not provide clear and 
convincing evidence. For example, the use of an intelligence test 
result alone would not constitute clear and convincing evidence. 
Clear and convincing evidence might include a description of 
assessments, including situational assessments and supported 
employment assessments, from service providers who have concluded 
that they would be unable to meet the individual's needs due to the 
severity of the individual's disability. The demonstration of 
``clear and convincing evidence'' must include, if appropriate, a 
functional assessment of skill development activities, with any 
necessary supports (including assistive technology), in real life 
settings.

    Note: Under the statute and paragraph (a)(1)(iv) of Sec. 361.42, 
an individual with a disability is not eligible for vocational 
rehabilitation services if the individual does not require the 
services to prepare for, enter, engage in, or retain gainful 
employment. The following examples illustrate how an individual with 
a disability may or may not meet this final eligibility criterion. 
The examples are purely illustrative, do not address all possible 
circumstances, and are not intended to substitute for individual 
counselor judgment. State units shall determine eligibility for 
vocational rehabilitation services on a case-by-case basis, taking 
into account those individual circumstances relating to an 
individual's strengths, resources, priorities, concerns, abilities, 
and capabilities.

    Example: An individual with a disability who is not currently 
employed and is unable to obtain employment consistent with the 
individual's abilities and capabilities would likely meet this 
eligibility criterion.
    Example: An individual with a disability who is already employed 
in a setting consistent with the individual's abilities and 
capabilities, but who desires to change jobs for reasons unrelated 
to the individual's disability, would likely not meet this 
eligibility criterion.
    Example: An individual with a disability who is already 
employed, but not in a setting consistent with the individual's 
abilities and capabilities, and who desires to obtain new employment 
that is consistent with his or her abilities and capabilities, would 
meet this eligibility criterion.
    Example: An individual with a disability who is currently 
employed, but is in jeopardy of losing that employment due to 
disability-related factors (e.g., the individual's disability is 
progressive and results in additional functional limitations), would 
meet this eligibility criterion.
    Example: An individual with a disability who was previously 
employed in a setting consistent with the individual's abilities and 
capabilities, who lost that employment for reasons unrelated to the 
disability, and whose job skills are transferable would likely not 
meet this eligibility criterion.
    Example: An individual with a disability whose disability is of 
a temporary nature (e.g., an allowed Social Security beneficiary who 
has been assigned a diaried date (date of a follow-up review to 
determine whether the individual has recovered medically) because 
his or her disability is expected to improve within 12 months) might 
not meet this eligibility criterion.

Sec. 361.43  Procedures for ineligibility determination.

    The State plan must assure that if the State unit determines that 
an applicant is ineligible for vocational rehabilitation services or 
determines that an individual receiving services under an 
individualized written rehabilitation program is no longer eligible for 
services, the State unit shall--
    (a) Make the determination only after providing an opportunity for 
full consultation with the individual or, as appropriate, with the 
individual's representative;
    (b) Inform the individual in writing, or by appropriate modes of 
communication, of the ineligibility determination, including the 
reasons for that determination, the requirements under this section, 
and the means by which the individual may express and seek remedy for 
any dissatisfaction, including the procedures for review of a 
determination by the rehabilitation counselor or coordinator in 
accordance with Sec. 361.57;
    (c) Provide the individual with a description of services available 
from a client assistance program established under 34 CFR part 370 and 
information on how to contact that program; and
    (d) Review the ineligibility determination--
    (1) Within 12 months, unless the individual has refused the review, 
is no longer present in the State, or the individual's whereabouts are 
unknown; or
    (2) In the case of an ineligibility determination based on a 
determination that the individual is incapable of achieving an 
employment outcome, within 12 months in accordance with paragraph 
(d)(1) of this section and annually thereafter if requested by the 
individual or, if appropriate, by the individual's representative.

(Authority: Sections 101(a)(9)(D), 102(a)(6), and 102(c) of the Act; 
29 U.S.C. 721(a)(9), 722(a)(6), and 722(c))

Sec. 361.44  Closure without eligibility determination.

    The State plan must assure that the State unit may not close an 
applicant's case prior to making an eligibility determination unless 
the applicant declines to participate in, or is unavailable to complete 
an assessment for determining eligibility and priority for services, 
and the State unit has made a reasonable number of attempts to contact 
the applicant or, if appropriate, the applicant's representative to 
encourage the applicant's participation.

(Authority: Sections 12(c) and 101(a)(6)(A) of the Act; 29 U.S.C. 
711(c) and 721(a)(6))

Sec. 361.45  Development of the individualized written rehabilitation 
program.

    (a) Purpose. The State plan must assure that the State unit 
conducts an assessment for determining vocational rehabilitation needs 
for each eligible individual or, if the State is operating under an 
order of selection, for each eligible individual to whom the State is 
able to provide services. The purpose of this assessment is to 
determine the long-term vocational goal, intermediate rehabilitation 
objectives, and the nature and scope of vocational rehabilitation 
services to be included in the IWRP, which must be designed to achieve 
an employment outcome that is consistent with the individual's unique 
strengths, priorities, concerns, abilities, capabilities, and career 
interests.
    (b) Procedural requirements. The State plan must assure that--
    (1) The IWRP is developed jointly, agreed to, and signed by the 
vocational rehabilitation counselor or coordinator and the individual 
or, as appropriate, the individual's representative within the 
framework of a counseling and guidance relationship;
    (2) The State unit has established and implemented standards for 
the prompt development of IWRPs for the individuals identified under 
paragraph (a) of this section, including timelines that take into 
consideration the needs of the individual;
    (3) The State unit advises each individual or, as appropriate, the 
individual's representative of all State unit procedures and 
requirements affecting the development and review of an IWRP, including 
the availability of appropriate modes of communication;
    (4) In developing an IWRP for a transitioning student, the State 
unit considers the student's individualized education program;
    (5) The State unit reviews the IWRP with the individual or, as 
appropriate, the individual's representative as often as necessary, but 
at least once each year to assess the individual's progress in meeting 
the objectives identified in the IWRP;
    (6) The State unit incorporates into the IWRP any revisions that 
are necessary to reflect changes in the individual's vocational goal, 
intermediate objectives, or vocational rehabilitation needs, after 
obtaining the agreement and signature of the individual or, as 
appropriate, the 

[[Page 64516]]
agreement and signature of the individual's representative; and
    (7) The State unit promptly provides each individual or, as 
appropriate, the individual's representative, a copy of the IWRP and 
its amendments in the native language, or appropriate mode of 
communication, of the individual or, as appropriate, of the 
individual's representative.
    (c) Data for preparing the IWRP.
    (1) Preparation without comprehensive assessment. To the extent 
possible, the vocational goal, intermediate objectives, and the nature 
and scope of rehabilitation services to be included in the individual's 
IWRP must be determined based on the data used for the assessment of 
eligibility and priority for services under Sec. 361.42.
    (2) Preparation based on comprehensive assessment.
    (i) If additional data are necessary to prepare the IWRP, the 
designated State unit shall conduct a comprehensive assessment of the 
unique strengths, resources, priorities, interests, and needs, 
including the need for supported employment services of an eligible 
individual, in the most integrated setting possible, consistent with 
the informed choice of the individual.
    (ii) The comprehensive assessment must be limited to information 
that is necessary to identify the rehabilitation needs of the 
individual and develop the IWRP and may, to the extent needed, 
include--
    (A) An analysis of pertinent medical, psychiatric, psychological, 
neuropsychological, and other pertinent vocational, educational, 
cultural, social, recreational, and environmental factors, and related 
functional limitations, that affect the employment and rehabilitation 
needs of the individual;
    (B) An analysis of the individual's personality, career interests, 
interpersonal skills, intelligence and related functional capacities, 
educational achievements, work experience, vocational aptitudes, 
personal and social adjustments, and employment opportunities;
    (C) An appraisal of the individual's patterns of work behavior and 
services needed to acquire occupational skills and to develop work 
attitudes, work habits, work tolerance, and social and behavior 
patterns suitable for successful job performance; and
    (D) An assessment, through provision of rehabilitation technology 
services, of the individual's capacities to perform in a work 
environment, including in an integrated setting, to the maximum extent 
feasible and consistent with the individual's informed choice.
    (iii) In preparing a comprehensive assessment, the State unit shall 
use, to the maximum extent possible and appropriate and in accordance 
with confidentiality requirements, existing information, including 
information that is provided by the individual, the family of the 
individual, and education agencies.

(Authority: Sections 7(22)(B), 102(b)(1)(A), and 102(b)(2); 29 
U.S.C. 706(5), 721(a)(9), 722, and 723(a)(1))

Sec. 361.46  Content of the individualized written rehabilitation 
program.

    (a) General requirements. The State plan must assure that each IWRP 
includes, as appropriate, statements concerning--
    (1) The specific long-term vocational goal, which must be based on 
the assessment for determining vocational rehabilitation needs, 
including the individual's career interests, and must be, to the extent 
appropriate and consistent with the informed choice of the individual, 
in an integrated setting;
    (2) The specific and measurable intermediate rehabilitation 
objectives related to the attainment of the long-term vocational goal, 
based on the assessment for determining vocational rehabilitation needs 
and consistent with the informed choice of the individual;
    (3) The specific rehabilitation services under Sec. 361.48 to be 
provided to achieve th
FR Doc. 95-30344 The State Vocational Rehabilitation Services Program
e established intermediate rehabilitation 
objectives, including, if appropriate, rehabilitation technology 
services and on-the-job and related personal assistance services;
    (4) The projected dates for the initiation of each vocational 
rehabilitation service, the anticipated duration of each service, and 
the projected date for the achievement of the individual's vocational 
goal;
    (5) A procedure and schedule for periodic review and evaluation of 
progress toward achieving intermediate rehabilitation objectives based 
upon objective criteria and a record of these reviews and evaluations;
    (6) How, in the words of the individual or, as appropriate, in the 
words of the individual's representative, the individual was--
    (i) Informed about and involved in choosing among alternative 
goals, objectives, services, providers, and methods used to procure or 
provide services; and
    (ii) Provided information regarding the availability and 
qualifications of alternative providers of services;
    (7) The terms and conditions for the provision of vocational 
rehabilitation services, including--
    (i) The responsibilities of the individual in implementing the 
IWRP;
    (ii) The extent of the individual's participation in the cost of 
services;
    (iii) The extent to which goods and services will be provided in 
the most integrated settings possible, consistent with the informed 
choices of the individual;
    (iv) The extent to which comparable services and benefits are 
available to the individual under any other program; and
    (v) The entity or entities that will provide the services and the 
process used to provide or procure the services;
    (8) The rights of the individual under this part and the means by 
which the individual may express and seek remedy for any 
dissatisfaction, including the opportunity for a review of 
rehabilitation counselor or coordinator determinations under 
Sec. 361.57;
    (9) The availability of a client assistance program established 
under 34 CFR part 370; and
    (10) The basis on which the individual has been determined to have 
achieved an employment outcome.
    (b) Supported employment placements. The State plan must assure 
that the IWRP for individuals with the most severe disabilities for 
whom a vocational goal in a supported employment setting has been 
determined to be appropriate will also contain--
    (1) A description of the supported employment services to be 
provided by the State unit; and
    (2) A description of the extended services needed and 
identification of the source of extended services or, in the event that 
identification of the source is not possible at the time the IWRP is 
developed, a statement explaining the basis for concluding that there 
is a reasonable expectation that services will become available.
    (c) Post-employment services. The State plan must assure that the 
IWRP for each individual contains statements concerning--
    (1) The expected need for post-employment services, based on an 
assessment during the development of the IWRP;
    (2) A reassessment of the need for post-employment services prior 
to the determination that the individual has achieved an employment 
outcome;
    (3) A description of the terms and conditions for the provision of 
any post-employment services, including the anticipated duration of 
those services, subsequent to the achievement of an employment outcome 
by the individual; and 

[[Page 64517]]

    (4) If appropriate, a statement of how post-employment services 
will be provided or arranged through cooperative agreements with other 
service providers.
    (d) Coordination of services for transitioning students. The State 
plan must assure that the IWRP for a transitioning student is 
coordinated with the individualized education program (IEP) for that 
individual in terms of the goals, objectives, and services identified 
in the IEP.
    (e) Ineligibility. The State plan must assure that the decision 
that an individual is not capable of achieving an employment outcome 
and is no longer eligible to receive services under an IWRP is made in 
accordance with the requirements in Sec. 361.43. The decision, and the 
reasons on which the decision was based, must be included as an 
amendment to the IWRP.

(Authority: Sections 101(a)(9), 102(b)(1), 102(c), and 635(b)(6) of 
the Act; 29 U.S.C. 721(a)(9), 722, and 795n)

Sec. 361.47  Record of services.

    The State plan must assure that the designated State unit maintains 
for each applicant or eligible individual a record of services that 
includes, to the extent pertinent, the following documentation:
    (a) If an applicant has been determined to be an eligible 
individual, documentation supporting that determination in accordance 
with the requirements in Sec. 361.42.
    (b) If an applicant has been determined to be ineligible, 
documentation supporting that determination in accordance with the 
requirements of Sec. 361.43.
    (c) Documentation supporting the determination that an individual 
has a severe disability or a most severe disability.
    (d) If an individual with a severe disability requires an extended 
evaluation in order to determine whether the individual is an eligible 
individual, documentation supporting the need for an extended 
evaluation, documentation supporting the periodic assessments conducted 
during the extended evaluation, and the written plan developed during 
the extended evaluation, in accordance with the requirements in 
Sec. 361.42(d).
    (e) The IWRP, and any amendments to the IWRP, containing the 
information required under Sec. 361.46.
    (f) In accordance with Sec. 361.45(a), documentation supporting the 
development of the long-term vocational goal, intermediate 
rehabilitation objectives, and nature and scope of services included in 
the individual's IWRP and, for individuals who are transitioning 
students, in the individual's IEP.
    (g) In the event that an individual's IWRP provides for services or 
a job placement in a non-integrated setting, a justification for that 
non-integrated setting.
    (h) Documentation of the reason for terminating services to an 
individual and, if an individual has achieved an employment outcome, 
the basis on which the requirements of Sec. 361.56 were determined to 
be met.
    (i) Documentation concerning any action and decision resulting from 
a request by an individual for review of a rehabilitation counselor or 
coordinator determination under Sec. 361.57.

(Authority: Sections 101(a)(6) and 101(a)(9) of the Act; 29 U.S.C. 
721(a)(6) and 721(a)(9))

Sec. 361.48  Scope of vocational rehabilitation services for 
individuals with disabilities.

    (a) The State plan must assure that, as appropriate to the 
vocational rehabilitation needs of each individual and consistent with 
each individual's informed choice, the following vocational 
rehabilitation services are available:
    (1) Assessment for determining eligibility and priority for 
services in accordance with Sec. 361.42.
    (2) Assessment for determining vocational rehabilitation needs in 
accordance with Sec. 361.45.
    (3) Vocational counseling and guidance.
    (4) Referral and other services necessary to help applicants and 
eligible individuals secure needed services from other agencies and to 
advise those individuals about client assistance programs established 
under 34 CFR part 370.
    (5) Physical and mental restoration services in accordance with the 
definition of that term in Sec. 361.5(b)(35).
    (6) Vocational and other training services, including personal and 
vocational adjustment training, books, tools, and other training 
materials, except that no training or training services in an 
institution of higher education (universities, colleges, community or 
junior colleges, vocational schools, technical institutes, or hospital 
schools of nursing) may be paid for with funds under this part unless 
maximum efforts have been made by the State unit to secure grant 
assistance in whole or in part from other sources to pay for that 
training.
    (7) Maintenance, in accordance with the definition of that term in 
Sec. 361.5(b)(31).
    (8) Transportation in connection with the rendering of any 
vocational rehabilitation service and in accordance with the definition 
of that term in Sec. 361.5(b)(50).
    (9) Vocational rehabilitation services to family members of an 
applicant or eligible individual if necessary to enable the applicant 
or eligible individual to achieve an employment outcome.
    (10) Interpreter services for individuals who are deaf and tactile 
interpreting services for individuals who are deaf-blind.
    (11) Reader services, rehabilitation teaching services, and 
orientation and mobility services for individuals who are blind.
    (12) Recruitment and training services to provide new employment 
opportunities in the fields of rehabilitation, health, welfare, public 
safety, law enforcement, and other appropriate public service 
employment.
    (13) Job search and placement assistance and job retention 
services.
    (14) Supported employment services in accordance with the 
definition of that term in Sec. 361.5(b)(46).
    (15) Personal assistance services in accordance with the definition 
of that term in Sec. 361.5(b)(34).
    (16) Post-employment services in accordance with the definition of 
that term in Sec. 361.5(b)(37).
    (17) Occupational licenses, tools, equipment, initial stocks, and 
supplies.
    (18) Rehabilitation technology in accordance with the definition of 
that term in Sec. 361.5(b)(39), including vehicular modification, 
telecommunications, sensory, and other technological aids and devices.
    (19) Transition services in accordance with the definition of that 
term in Sec. 361.5(b)(47).
    (20) Other goods and services determined necessary for the 
individual with a disability to achieve an employment outcome.
    (b) The State plan also must describe annually--
    (1) The manner in which a broad range of rehabilitation technology 
services will be provided at each stage of the rehabilitation process 
and on a statewide basis;
    (2) The training that will be provided to vocational rehabilitation 
counselors, client assistance personnel, and other related services 
personnel on the provision of rehabilitation technology services; and
    (3) The manner in which on-the-job and other related personal 
assistance services will be provided to assist individuals while they 
are receiving vocational rehabilitation services, including a 
description of strategies for developing statewide capacity to provide 
those services to an increasing number of individuals to improve their 
employment potential.

 
[[Page 64518]]

(Authority: Sections 101(a)(5)(C), 101(a)(26), and 103(a) of the 
Act; 29 U.S.C. 721(a)(5)(C), 721(a)(26), and 723(a))

Sec. 361.49  Scope of vocational rehabilitation services for groups of 
individuals with disabilities.

    (a) The State plan may also provide for the following vocational 
rehabilitation services for the benefit of groups of individuals with 
disabilities:
    (1) The establishment, development, or improvement of a public or 
other nonprofit community rehabilitation program that is used to 
provide services that promote integration and competitive employment, 
including under special circumstances, the construction of a facility 
for a public or nonprofit community rehabilitation program. Examples of 
``special circumstances'' include the destruction by natural disaster 
of the only available center serving an area or a State determination 
that construction is necessary in a rural area because no other public 
agencies or private nonprofit organizations are currently able to 
provide services to individuals.
    (2) Telecommunications systems that have the potential for 
substantially improving vocational rehabilitation service delivery 
methods and developing appropriate programming to meet the particular 
needs of individuals with disabilities, including telephone, 
television, satellite, tactile-vibratory devices, and similar systems, 
as appropriate.
    (3) Special services to provide recorded material for individuals 
who are blind, captioned television, films or video cassettes for 
individuals who are deaf, tactile materials for individuals who are 
deaf-blind, and other special services that provide information through 
tactile, vibratory, auditory, and visual media.
    (4) Technical assistance and support services, such as job site 
modification and other reasonable accommodations, to businesses that 
are not subject to Title I of the Americans with Disabilities Act of 
1990 and that are seeking to employ individuals with disabilities.
    (5) In the case of small business enterprises operated by 
individuals with the most severe disabilities under the supervision of 
the State unit, including enterprises established under the Randolph-
Sheppard program, management services and supervision, initial stocks 
and supplies, and initial operating expenses, in accordance with the 
following requirements:
    (i) ``Management services and supervision'' includes inspection, 
quality control, consultation, accounting, regulating, in-service 
training, and related services provided on a systematic basis to 
support and improve small business enterprises operated by individuals 
with the most severe disabilities. ``Management services and 
supervision'' may be provided throughout the operation of the small 
business enterprise.
    (ii) ``Initial stocks and supplies'' includes those items necessary 
to the establishment of a new business enterprise during the initial 
establishment period, which shall not exceed six months.
    (iii) Costs of establishing a small business enterprise may include 
operational costs during the initial establishment period, which shall 
not exceed six months.
    (iv) If the State plan provides for these services, it must contain 
an assurance that only individuals with the most severe disabilities 
will be selected to participate in this supervised program.
    (v) If the State plan provides for these services and the State 
unit chooses to set aside funds from the proceeds of the operation of 
the small business enterprises, the State plan also must assure that 
the State unit maintains a description of the methods used in setting 
aside funds and the purposes for which funds are set aside. Funds may 
be used only for small business enterprises purposes, and benefits that 
are provided to operators from set-aside funds must be provided on an 
equitable basis.
    (6) Other services that promise to contribute substantially to the 
rehabilitation of a group of individuals but that are not related 
directly to the IWRP of any one individual. Examples of those other 
services might include the purchase or lease of a bus to provide 
transportation to a group of applicants or eligible individuals or the 
purchase of equipment or instructional materials that would benefit a 
group of applicants or eligible individuals.
    (b) If the State plan provides for vocational rehabilitation 
services for groups of individuals, the State plan must assure that the 
designated State unit maintains information to ensure the proper and 
efficient administration of those services in the form and detail and 
at the time required by the Secretary, including the types of services 
provided, the costs of those services, and, to the extent feasible, 
estimates of the numbers of individuals benefitting from those 
services.

(Authority: Section 103(b) of the Act; 29 U.S.C. 711(c), 723(b), 
721(a)(6))

Sec. 361.50  Written policies governing the provision of services.

    The State plan must assure that the State unit develops and 
maintains written policies covering the nature and scope of each of the 
vocational rehabilitation services specified in Sec. 361.48 and 
Sec. 361.49 and the criteria under which each service is provided. The 
policies must ensure that the provision of services is based on the 
rehabilitation needs of each individual as identified in that 
individual's IWRP. The written policies may not establish any arbitrary 
limits on the nature and scope of vocational rehabilitation services to 
be provided to the individual to achieve an employment outcome. The 
policies must be developed in accordance with the following provisions:
    (a) Out-of-State services. (1) The State unit may establish a 
preference for in-State services, provided that the preference does not 
effectively deny an individual a necessary service. If the individual 
chooses an out-of-State service at a higher cost than an in-State 
service, if either service would meet the individual's rehabilitation 
needs, the designated State unit is not responsible for those costs in 
excess of the cost of the in-State service.
    (2) The State unit may not establish an absolute prohibition on the 
provision of out-of-State services.
    (b) Payment for services. (1) The State unit shall establish and 
maintain written policies to govern the rates of payment for all 
purchased vocational rehabilitation services.
    (2) The State unit may establish a reasonable fee schedule designed 
to ensure the lowest reasonable cost to the program for each service, 
provided that the schedule is--
    (i) Not so low as to effectively deny an individual a necessary 
service; and
    (ii) Not absolute and permits exceptions so that individual needs 
can be addressed.
    (3) The State unit may not place absolute dollar limits on specific 
service categories or on the total services provided to an individual.
    (c) Duration of services. (1) The State unit may establish 
reasonable time periods for the provision of services provided that the 
time periods are--
    (i) Not so short as to effectively deny an individual a necessary 
service; and
    (ii) Not absolute and permit exceptions so that individual needs 
can be addressed.
    (2) The State unit may not establish absolute time limits on the 
provision of specific services or on the provision of services to an 
individual. The duration of each service needed by an individual must 
be determined on an individual basis and reflected in that individual's 
IWRP. 

[[Page 64519]]

    (d) Authorization of services. The State unit shall establish 
policies related to the timely authorization of services, including 
conditions under which verbal authorization can be given.

(Authority: Sections 12(c), 12(e)(2)(A), and 101(a)(6) of the Act 
and 29 U.S.C. 711(c), 711(e)(2)(A), and 721(a)(6))

Sec. 361.51  Written standards for facilities and providers of 
services.

    The State plan must assure that the designated State unit 
establishes, maintains, makes available to the public, and implements 
written minimum standards for the various types of facilities and 
providers of services used by the State unit in providing vocational 
rehabilitation services, in accordance with the following requirements:
    (a) Accessibility of facilities. Any facility in which vocational 
rehabilitation services are provided must be accessible to individuals 
receiving services and must comply with the requirements of the 
Architectural Barriers Act of 1968, the Uniform Accessibility Standards 
and their implementing regulations in 41 CFR part 101, subpart 101-
19.6, the American National Standards Institute, No. A117.1-1986, the 
Americans with Disabilities Act of 1990, and section 504 of the Act.
    (b) Personnel standards. (1) Qualified personnel. Providers of 
vocational rehabilitation services shall use qualified personnel, in 
accordance with any applicable national or State-approved or recognized 
certification, licensing, registration or other comparable requirements 
(including State personnel requirements) that apply to the profession 
or discipline in which that category of personnel is providing 
vocational rehabilitation services.
    (2) Affirmative action. Providers of vocational rehabilitation 
services shall take affirmative action to employ and advance in 
employment qualified individuals with disabilities.
    (3) Special communication needs personnel. Providers of vocational 
rehabilitation services shall--
    (i) Include among their personnel, or obtain the services of, 
individuals able to communicate in the native languages of applicants 
and eligible individuals who have limited English speaking ability; and
    (ii) Ensure that appropriate modes of communication for all 
applicants and eligible individuals are used.
    (c) Fraud, waste, and abuse. Providers of vocational rehabilitation 
services shall have adequate and appropriate policies and procedures to 
prevent fraud, waste, and abuse.

(Authority: Sections 12(e)(2) (B), (D), and (E) and 101(a)(6)(B) of 
the Act; 29 U.S.C. 711(e) and 721(a)(6)(B))

Sec. 361.52  Opportunity to make informed choices regarding the 
selection of services and providers.

    The State plan must describe the manner in which the State unit 
will provide each applicant, including individuals who are receiving 
services during an extended evaluation, and each eligible individual 
the opportunity to make informed choices throughout the vocational 
rehabilitation process in accordance with the following requirements:
    (a) Each State unit, in consultation with its State Rehabilitation 
Advisory Council, if it has one, shall develop and implement policies 
and procedures that enable each individual to make an informed choice 
with regard to the selection of a long-term vocational goal, 
intermediate rehabilitation objectives, vocational rehabilitation 
services, including assessment services, and service providers.
    (b) In developing an individual's IWRP, the State unit shall 
provide the individual, or assist the individual in acquiring, 
information necessary to make an informed choice about the specific 
services, including the providers of those services, that are needed to 
achieve the individual's vocational goal. This information must 
include, at a minimum, information relating to the cost, accessibility, 
and duration of potential services, the level of consumer satisfaction 
with those services, the qualifications of potential service providers, 
the types of services offered by those providers, and the degree to 
which services are provided in integrated settings.
    (c) In providing, or assisting the individual in acquiring, the 
information required under paragraph (b) of this section, the State 
unit may use, but is not limited to, the following methods or sources 
of information:
    (1) State or regional lists of services and service providers.
    (2) Periodic consumer satisfaction surveys and reports.
    (3) Referrals to other consumers, local consumer groups, or 
disability advisory councils qualified to discuss the services or 
service providers.
    (4) Relevant accreditation, certification, or other information 
relating to the qualifications of service providers.

(Authority: Sections 12(e)(1) and 12(e)(2)(C) of the Act; 29 U.S.C. 
711(e))

Sec. 361.53  Availability of comparable services and benefits.

    (a) The State plan must assure that--
    (1) Prior to providing any vocational rehabilitation services to an 
eligible individual, or to members of the individual's family, except 
those services listed in paragraph (b) of this section, the State unit 
shall determine whether comparable services and benefits exist under 
any other program and whether those services and benefits are available 
to the individual;
    (2) If comparable services or benefits exist under any other 
program and are available to the eligible individual within a 
reasonable period of time so that the intermediate rehabilitation 
objectives of the individual's IWRP can be met, the State unit shall 
use those comparable services or benefits to meet, in whole or in part, 
the cost of vocational rehabilitation services; and
    (3) If comparable services or benefits exist under any other 
program, but are not available to the individual within a reasonable 
period of time, the State unit shall provide vocational rehabilitation 
services until those comparable services and benefits become available.
    (b) A prior determination of the availability of comparable 
services and benefits is not required in connection with the provision 
of any of the following services:
    (1) Assessment for determining eligibility and priority for 
services.
    (2) Assessment for determining vocational rehabilitation needs.
    (3) Vocational counseling, guidance, and referral services.
    (4) Vocational and other training services, such as personal and 
vocational adjustment training, books (including alternative format 
books accessible by computer and taped books), tools, and other 
training materials in accordance with Sec. 361.48(a)(6).
    (5) Placement services.
    (6) Rehabilitation technology.
    (7) Post-employment services consisting of the services listed 
under paragraphs (b) (1) through (6) of this section.
    (c) The requirements of paragraph (a) of this section also do not 
apply if--
    (1) The determination of the availability of comparable services 
and benefits under any other program would delay the provision of 
vocational rehabilitation services to any individual who is determined 
to be at extreme medical risk, based on medical evidence provided by an 
appropriate qualified medical professional; or
    (2) An immediate job placement would be lost due to a delay in the 

[[Page 64520]]
    provision of comparable services and benefits.

(Authority: Section 101(a)(8) of the Act; 29 U.S.C. 721(a)(8))

Sec. 361.54  Participation of individuals in cost of services based on 
financial need.

    (a) No Federal requirement. There is no Federal requirement that 
the financial need of individuals be considered in the provision of 
vocational rehabilitation services.
    (b) State unit requirements. (1) The State unit may choose to 
consider the financial need of eligible individuals or individuals who 
are receiving services during an extended evaluation for purposes of 
determining the extent of their participation in the costs of 
vocational rehabilitation services, other than those services 
identified in paragraph (b)(3) of this section.
    (2) If the State unit chooses to consider financial need--
    (i) It shall maintain written policies covering the determination 
of financial need;
    (ii) The State plan must specify the types of vocational 
rehabilitation services for which the unit has established a financial 
needs test;
    (iii) The policies must be applied uniformly to all individuals in 
similar circumstances;
    (iv) The policies may require different levels of need for 
different geographic regions in the State, but must be applied 
uniformly to all individuals within each geographic region; and
    (v) The policies must ensure that the level of an individual's 
participation in the cost of vocational rehabilitation services is--
    (A) Reasonable;
    (B) Based on the individual's financial need; and
    (C) Not so high as to effectively deny the individual a necessary 
service.
    (3) The State plan must assure that no financial needs test is 
applied and no financial participation is required as a condition for 
furnishing the following vocational rehabilitation services:
    (i) Assessment for determining eligibility and priority for 
services, except those non-assessment services that are provided during 
an extended evaluation for an individual with a severe disability under 
Sec. 361.42(d).
    (ii) Assessment for determining vocational rehabilitation needs.
    (iii) Vocational counseling, guidance, and referral services.
    (iv) Placement services.

(Authority: Section 12(c) of the Act; 29 U.S.C. 711(c))

Sec. 361.55  Review of extended employment in community rehabilitation 
programs or other employment under section 14(c) of the Fair Labor 
Standards Act.

    The State plan must assure that the State unit--
    (a) Reviews and re-evaluates at least annually the status of each 
individual determined by the State unit to have achieved an employment 
outcome in an extended employment setting in a community rehabilitation 
program or other employment setting in which the individual is 
compensated in accordance with section 14(c) of the Fair Labor 
Standards Act. This review or re-evaluation must include input from the 
individual or, in an appropriate case, the individual's representative 
to determine the interests, priorities, and needs of the individual for 
employment in, or training for, competitive employment in an integrated 
setting in the labor market;
    (b) Makes maximum effort, including the identification of 
vocational rehabilitation services, reasonable accommodations, and 
other support services, to enable the eligible individual to benefit 
from training in, or to be placed in employment in, an integrated 
setting; and
    (c) Provides services designed to promote movement from extended 
employment to integrated employment, including supported employment, 
independent living, and community participation.

(Authority: Section 101(a)(16) of the Act; 29 U.S.C. 721(a)(16))

Sec. 361.56  Individuals determined to have achieved an employment 
outcome.

    The State plan must assure that an individual is determined to have 
achieved an employment outcome only if the following requirements are 
met:
    (a) The provision of services under the individual's IWRP has 
contributed to the achievement of the employment outcome.
    (b) The employment outcome is consistent with the individual's 
abilities, capabilities, interests, and informed choice.
    (c) The employment outcome is in the most integrated setting 
possible, consistent with the individual's informed choice.
    (d) The individual has maintained the employment outcome for the 
duration of the probationary period established by the employer for its 
employees or, if the employer does not have an established probationary 
period, for a period of at least 90 days.
    (e) The individual and the rehabilitation counselor or coordinator 
consider the employment outcome to be satisfactory and agree that the 
individual is performing well on the job.

(Authority: Sections 12(c), 101(a)(6), and 106(a)(2) of the Act; 29 
U.S.C. 711(c), 721(a)(6), and 726(a)(2))

Sec. 361.57  Review of rehabilitation counselor or coordinator 
determinations.

    The State plan must contain procedures established by the director 
of the designated State unit to ensure that any applicant or eligible 
individual who is dissatisfied with any determinations made by a 
rehabilitation counselor or coordinator concerning the furnishing or 
denial of services may request timely review of those determinations. 
The procedures established by the director of the State unit must be in 
accordance with the following provisions:
    (a) Informal resolution. The State unit may establish an informal 
process to resolve a request for review without conducting a formal 
hearing. However, a State's informal process must be conducted and 
concluded within the time period established under paragraph (c)(1) of 
this section for holding a formal hearing. If informal resolution is 
not successful, a formal hearing must be conducted by the end of this 
same period, unless the parties jointly agree to a delay.
    (b) Formal hearing procedures. Except as provided in paragraph (e) 
of this section, the State unit shall establish formal review 
procedures that provide that--
    (1) A hearing by an impartial hearing officer, selected in 
accordance with paragraph (d) of this section, must be held within the 
time period established under paragraph (c)(1) of this section, unless 
informal resolution was achieved prior to the expiration of the time 
period or the parties jointly agreed to a delay;
    (2) The State unit may not institute a suspension, reduction, or 
termination of services being provided under an IWRP pending a final 
determination of the formal hearing under this paragraph or informal 
resolution under paragraph (a) of this section, unless the individual 
or, in an appropriate case, the individual's representative so requests 
or the agency has evidence that the services have been obtained through 
misrepresentation, fraud, collusion, or criminal conduct on the part of 
the individual;
    (3) The individual or, if appropriate, the individual's 
representative shall be afforded an opportunity to present additional 
evidence, information, and witnesses to the impartial hearing officer, 
to be represented by counsel or other appropriate advocate, and to 
examine all witnesses and other 

[[Page 64521]]
relevant sources of information and evidence;
    (4) The impartial hearing officer shall make a decision based on 
the provisions of the approved State plan, the Act, and Federal and 
State vocational rehabilitation regulations and policies and shall 
provide to the individual or, if appropriate, the individual's 
representative and to the director of the designated State unit a full 
written report of the findings and grounds for the decision within the 
time period established under paragraph (c)(2) of this section;
    (5) If the director of the designated State unit decides to review 
the decision of the impartial hearing officer, the director shall 
notify in writing the individual or, if appropriate, the individual's 
representative of that intent within 20 days of the mailing of the 
impartial hearing officer's decision;
    (6) If the director of the designated State unit fails to provide 
the notice required by paragraph (b)(5) of this section, the impartial 
hearing officer's decision becomes a final decision;
    (7) The decision of the director of the designated State unit to 
review any impartial hearing officer's decision must be based on 
standards of review contained in written State unit policy;
    (8) If the director of the designated State unit decides to review 
the decision of the impartial hearing officer, the director shall 
provide the individual or, if appropriate, the individual's 
representative an opportunity to submit additional evidence and 
information relevant to the final decision;
    (9) The director may not overturn or modify a decision, or part of 
a decision, of an impartial hearing officer that supports the position 
of the individual unless the director concludes, based on clear and 
convincing evidence, that the decision of the impartial hearing officer 
is clearly erroneous because it is contrary to the approved State plan, 
the Act, or Federal or State vocational rehabilitation regulations or 
policy;
    (10) The director of the designated State unit shall make a final 
decision and provide a full report in writing of the decision, and of 
the findings and grounds for the decision, to the individual or, if 
appropriate, the individual's representative within the time period 
established under paragraph (c)(3) of this section;
    (11) The director of the designated State unit may not delegate 
responsibility to make any final decision to any other officer or 
employee of the designated State unit; and
    (12) Except for the time limitations established in paragraphs 
(b)(5) and (c)(1) of this section, each State's review procedures may 
provide for reasonable time extensions for good cause shown at the 
request of a party or at the request of both parties.
    (c) Timelines. Each State unit, in consultation with its State 
Rehabilitation Advisory Council, if it has one, shall develop and 
implement reasonable timelines for the prompt handling of appeals, 
including, at a minimum, timelines for--
    (1) Holding a formal hearing after an individual's request for 
review;
    (2) Rendering the decision of the impartial hearing officer after 
completion of the formal hearing; and
    (3) Rendering the final decision of the director of the designated 
State unit after providing notice of intent to review the decision of 
the impartial hearing officer in accordance with paragraph (b)(5) of 
this section.
    (d) Selection of impartial hearing officers. Except as provided in 
paragraph (e) of this section, the impartial hearing officer for a 
particular case must be selected--
    (1) From among the pool of persons qualified to be an impartial 
hearing officer, as defined in Sec. 361.5(b)(22), who are identified by 
the State unit, if the State unit is an independent commission, or 
jointly by the designated State unit and the State Rehabilitation 
Advisory Council, if the State has a Council; and
    (2)(i) On a random basis; or
    (ii) By agreement between the director of the designated State unit 
and the individual or, if appropriate, the individual's representative.
    (e) State fair hearing board. The provisions of paragraphs (b), 
(c), and (d) of this section are not applicable if the State has a fair 
hearing board that was established before January 1, 1985, that is 
authorized under State law to review rehabilitation counselor or 
coordinator determinations and to carry out the responsibilities of the 
director of the designated State unit under this section.
    (f) Informing affected individuals. The State unit shall inform, 
through appropriate modes of communication, all applicants and eligible 
individuals of--
    (1) Their right to review under this section, including the names 
and addresses of individuals with whom appeals may be filed; and
    (2) The manner in which an impartial hearing officer will be 
selected consistent with the requirements of paragraph (d) of this 
section.
    (g) Data collection. The director of the designated State unit 
shall collect and submit, at a minimum, the following data to the 
Secretary for inclusion each year in the annual report to Congress 
under section 13 of the Act:
    (1) The number of appeals to impartial hearing officers and the 
State director, including the type of complaints and the issues 
involved.
    (2) The number of decisions by the State director reversing in 
whole or in part a decision of the impartial hearing officer.
    (3) The number of decisions affirming the position of the 
dissatisfied individual assisted through the client assistance program, 
when that assistance is known to the State unit.

(Authority: Sections 102(b) and 102(d) of the Act; 29 U.S.C. 722(b) 
and 722(d))

Subpart C--Financing of State Vocational Rehabilitation Programs

Sec. 361.60  Matching requirements.

    (a) Federal share. (1) General. Except as provided in paragraphs 
(a)(2) and (a)(3) of this section, the Federal share for expenditures 
made by the State unit under the State plan, including expenditures for 
the provision of vocational rehabilitation services, administration of 
the State plan, and the development and implementation of the strategic 
plan, is 78.7 percent.
    (2) Construction projects. The Federal share for expenditures made 
for the construction of a facility for community rehabilitation program 
purposes may not be more than 50 percent of the total cost of the 
project.
    (3) Innovation and expansion grant activities. The Federal share 
for the cost of innovation and expansion grant activities funded by 
appropriations under Part C of Title I of the Act is 90 percent.
    (b) Non-Federal share.  (1) General. Except as provided in 
paragraphs (b)(2) and (b)(3) of this section, expenditures made under 
the State plan to meet the non-Federal share under this section must be 
consistent with the provisions of 34 CFR 80.24.
    (2) Third party in-kind contributions. Third party in-kind 
contributions specified in 34 CFR 80.24(a)(2) may not be used to meet 
the non-Federal share under this section.
    (3) Contributions by private entities. Expenditures made from 
contributions by private organizations, agencies, or individuals that 
are deposited in the account of the State agency or sole local agency 
in accordance with State law and that are earmarked, under a condition 
imposed by the contributor, may be used as part of the non-Federal 
share under this section if the following requirements are met:
    (i) The funds are earmarked for meeting in whole or in part the 
State's 

[[Page 64522]]
share for establishing a community rehabilitation program or 
constructing a particular facility for community rehabilitation program 
purposes.
    (ii) If the funds are earmarked for any other purpose under the 
State plan, the expenditures do not benefit in any way the donor, an 
individual to whom the donor is related by blood or marriage or with 
whom the donor has a close personal relationship, or an individual, 
entity, or organization with whom the donor shares a financial 
interest. The Secretary does not consider a donor's receipt from the 
State unit of a grant, subgrant, or contract with funds allotted under 
this part to be a benefit for the purposes of this paragraph if the 
grant, subgrant, or contract is awarded under the State's regular 
competitive procedures.

(Authority: Sections 7(7), 101(a)(3), and 104 of the Act; 29 U.S.C. 
706(7), 721(a)(3) and 724)

    Note: The Secretary notes that contributions may be earmarked in 
accordance with paragraph (b)(3)(ii) of this section for providing 
particular services (e.g., rehabilitation technology services); 
serving individuals with certain types of disabilities (e.g., 
individuals who are blind), consistent with the State's order of 
selection, if applicable; providing services to special groups that 
State or Federal law permits to be targeted for services (e.g., 
transitioning students), consistent with the State's order of 
selection, if applicable; or carrying out particular types of 
administrative activities permissible under State law. Contributions 
also may be restricted to particular geographic areas to increase 
services or expand the scope of services that are available 
statewide under the State plan. However, if a contribution is 
earmarked for a restricted geographic area, expenditures from that 
contribution may be used to meet the non-Federal share requirement 
only if the State unit requests and the Secretary approves a waiver 
of statewideness, in accordance with Sec. 361.26.

Sec. 361.61  Limitation on use of funds for construction expenditures.

    No more than 10 percent of a State's allotment for any fiscal year 
under section 110 of the Act may be spent on the construction of 
facilities for community rehabilitation program purposes.

(Authority: Section 101(a)(17)(A) of the Act; 29 U.S.C. 
721(a)(17)(A))

Sec. 361.62  Maintenance of effort requirements.

    (a) General requirements. (1) The Secretary reduces the amount 
otherwise payable to a State for a fiscal year by the amount by which 
the total expenditures from non-Federal sources under the State plan 
for the previous fiscal year were less than the total of those 
expenditures for the fiscal year two years prior to the previous fiscal 
year. For example, for fiscal year 1996, a State's maintenance of 
effort level is based on the amount of its expenditures from non-
Federal sources for fiscal year 1994. Thus, if the State's non-Federal 
expenditures in 1996 are less than they were in 1994, the State has a 
maintenance of effort deficit, and the Secretary reduces the State's 
allotment in 1997 by the amount of that deficit.
    (2) If, at the time the Secretary makes a determination that a 
State has failed to meet its maintenance of effort requirements, it is 
too late for the Secretary to make a reduction in accordance with 
paragraph (a)(1) of this section, then the Secretary recovers the 
amount of the maintenance of effort deficit through audit disallowance.
    (b) Specific requirements for construction of facilities. If the 
State plan provides for the construction of a facility for community 
rehabilitation program purposes, the amount of the State's share of 
expenditures for vocational rehabilitation services under the plan, 
other than for the construction of a facility for community 
rehabilitation program purposes or the establishment of a facility for 
community rehabilitation purposes, must be at least equal to the 
expenditures for those services for the second prior fiscal year. If a 
State fails to meet the requirements of this paragraph, the Secretary 
recovers the amount of the maintenance of effort deficit through audit 
disallowance.
    (c) Separate State agency for vocational rehabilitation services 
for individuals who are blind. If there is a separate part of the State 
plan administered by a separate State agency to provide vocational 
rehabilitation services for individuals who are blind--
    (1) Satisfaction of the maintenance of effort requirements under 
paragraphs (a) and (b) of this section are determined based on the 
total amount of a State's non-Federal expenditures under both parts of 
the State plan; and
    (2) If a State fails to meet any maintenance of effort requirement, 
the Secretary reduces the amount otherwise payable to the State for 
that fiscal year under each part of the plan in direct relation to the 
amount by which expenditures from non-Federal sources under each part 
of the plan in the previous fiscal year were less than they were for 
that part of the plan for the fiscal year two years prior to the 
previous fiscal year.
    (d) Waiver or modification. (1) The Secretary may waive or modify 
the maintenance of effort requirement in paragraph (a)(1) of this 
section if the Secretary determines that a waiver or modification is 
necessary to permit the State to respond to exceptional or 
uncontrollable circumstances, such as a major natural disaster or a 
serious economic downturn, that--
    (i) Cause significant unanticipated expenditures or reductions in 
revenue; and
    (ii) Result in--
    (A) A general reduction of programs within the State; or
    (B) The State making substantial expenditures in the vocational 
rehabilitation program for long-term purposes due to the one-time costs 
associated with the construction of a facility for community 
rehabilitation program purposes, the establishment of a facility for 
community rehabilitation program purposes, or the acquisition of 
equipment.
    (2) The Secretary may waive or modify the maintenance of effort 
requirement in paragraph (b) of this section or the 10 percent 
allotment limitation in Sec. 361.61 if the Secretary determines that a 
waiver or modification is necessary to permit the State to respond to 
exceptional or uncontrollable circumstances, such as a major natural 
disaster, that result in significant destruction of existing facilities 
and require the State to make substantial expenditures for the 
construction of a facility for community rehabilitation program 
purposes or the establishment of a facility for community 
rehabilitation program purposes in order to provide vocational 
rehabilitation services.
    (3) A written request for waiver or modification, including 
supporting justification, must be submitted to the Secretary as soon as 
the State determines that an exceptional or uncontrollable circumstance 
will prevent it from making its required expenditures from non-Federal 
sources.

(Authority: Sections 101(a)(17) and 111(a)(2) of the Act; 29 U.S.C. 
721(a)(17) and 731(a)(2))

Sec. 361.63  Program income.

    (a) Definition. Program income means gross income received by the 
State that is directly generated by an activity supported under this 
part.
    (b) Sources. Sources of program income include, but are not limited 
to, payments from the Social Security Administration for rehabilitating 
Social Security beneficiaries, payments received from workers' 
compensation funds, fees for services to defray part or all of the 
costs of services provided to particular individuals, and income 
generated by a State-operated community rehabilitation program. 

[[Page 64523]]

    (c) Use of program income. (1) Except as provided in paragraph 
(c)(2) of this section, program income, whenever earned, must be used 
for the provision of vocational rehabilitation services, the 
administration of the State plan, and developing and implementing the 
strategic plan. Program income is considered earned when it is 
received.
    (2) Payments provided to a State from the Social Security 
Administration for rehabilitating Social Security beneficiaries may 
also be used to carry out programs under Part B of Title I of the Act 
(client assistance), Part C of Title I of the Act (innovation and 
expansion), Part C of Title VI of the Act (supported employment) and 
Title VII of the Act (independent living).
    (3) The State is authorized to treat program income as--
    (i) An addition to the grant funds to be used for additional 
allowable program expenditures, in accordance with 34 CFR 80.25(g)(2); 
or
    (ii) A deduction from total allowable costs, in accordance with 34 
CFR 80.25(g)(1).
    (4) Program income may not be used to meet the non-Federal share 
requirement under Sec. 361.60.

(Authority: Section 108 of the Act; 29 U.S.C. 728; 34 CFR 80.25)

Sec. 361.64  Obligation of Federal funds and program income.

    (a) Except as provided in paragraph (b) of this section, any 
Federal funds, including reallotted funds, that are appropriated for a 
fiscal year to carry out a program under this part that are not 
obligated by the State unit by the beginning of the succeeding fiscal 
year and any program income received during a fiscal year that is not 
obligated by the State unit by the beginning of the succeeding fiscal 
year must remain available for obligation by the State unit during that 
succeeding fiscal year.
    (b) Federal funds appropriated for a fiscal year remain available 
for obligation in the succeeding fiscal year only to the extent that 
the State unit met the matching requirement for those Federal funds by 
obligating, in accordance with 34 CFR 76.707, the non-Federal share in 
the fiscal year for which the funds were appropriated.

(Authority: Section 19 of the Act; 29 U.S.C. 718)

Sec. 361.65  Allotment and payment of Federal funds for vocational 
rehabilitation services.

    (a) Allotment. (1) The allotment of Federal funds for vocational 
rehabilitation services for each State is computed in accordance with 
the requirements of section 110 of the Act, and payments are made to 
the State on a quarterly basis, unless some other period is established 
by the Secretary.
    (2) If the State plan designates one State agency to administer, or 
supervise the administration of, the part of the plan under which 
vocational rehabilitation services are provided for individuals who are 
blind and another State agency to administer the rest of the plan, the 
division of the State's allotment is a matter for State determination.
    (b) Reallotment. (1) The Secretary determines not later than 45 
days before the end of a fiscal year which States, if any, will not use 
their full allotment.
    (2) As soon as possible, but not later than the end of the fiscal 
year, the Secretary reallots these funds to other States that can use 
those additional funds during the current or subsequent fiscal year, 
provided the State can meet the matching requirement by obligating the 
non-Federal share of any reallotted funds in the fiscal year for which 
the funds were appropriated.
    (3) Funds reallotted to another State are considered to be an 
increase in the recipient State's allotment for the fiscal year for 
which the funds were appropriated.

(Authority: Sections 110 and 111 of the Act; 29 U.S.C. 730 and 731)

Subpart D--Strategic Plan for Innovation and Expansion of 
Vocational Rehabilitation Services

Sec. 361.70  Purpose of the strategic plan.

    The State shall prepare a statewide strategic plan, in accordance 
with Sec. 361.71, to develop and use innovative approaches for 
achieving long-term success in expanding and improving vocational 
rehabilitation services, including supported employment services, 
provided under the State plan, including the supported employment 
supplement to the State plan required under 34 CFR part 363.

(Authority: Section 120 of the Act; 29 U.S.C. 740)

Sec. 361.71  Procedures for developing the strategic plan.

    (a) Public input. (1) The State unit shall meet with and receive 
recommendations from members of the State Rehabilitation Advisory 
Council, if the State has a Council, and the Statewide Independent 
Living Council prior to developing the strategic plan.
    (2) The State unit shall solicit public input on the strategic plan 
prior to or at the public meetings on the State plan, in accordance 
with the requirements of Sec. 361.20.
    (3) The State unit shall consider the recommendations received 
under paragraphs (a)(1) and (a)(2) of this section and, if the State 
rejects any recommendations, shall include a written explanation of the 
reasons for those rejections in the strategic plan.
    (4) The State unit shall develop a procedure to ensure ongoing 
comment from the Council or Councils, if applicable, as the plan is 
being implemented.
    (b) Duration. The strategic plan must cover a three-year period.
    (c) Revisions. The State unit shall revise the strategic plan on an 
annual basis to reflect the unit's actual experience over the previous 
year and input from the State Rehabilitation Advisory Council, if the 
State has a Council, individuals with disabilities, and other 
interested parties.
    (d) Dissemination. The State unit shall disseminate widely the 
strategic plan to individuals with disabilities, disability 
organizations, rehabilitation professionals, and other interested 
persons and shall make the strategic plan available in accessible 
formats and appropriate modes of communication.

(Authority: Section 122 of the Act; 29 U.S.C. 742)

Sec. 361.72  Content of the strategic plan.

    The strategic plan must include--
    (a) A statement of the mission, philosophy, values, and principles 
of the vocational rehabilitation program in the State;
    (b) Specific goals and objectives for expanding and improving the 
system for providing vocational rehabilitation services;
    (c) Specific multi-faceted and systemic approaches for 
accomplishing the objectives, including interagency coordination and 
cooperation, that build upon state-of-the-art practices and research 
findings and that implement the State plan and the supplement to the 
State plan submitted under 34 CFR part 363;
    (d) A description of the specific programs, projects, and 
activities funded under this subpart, including how the programs, 
projects, and activities accomplish the objectives of the subpart, and 
the resource allocation and budget for the programs, projects, and 
activities; and
    (e) Specific criteria for determining whether the objectives have 
been achieved, including an assurance that the State will conduct an 
annual evaluation to determine the extent to which the objectives have 
been achieved and, if specific objectives have not been achieved, the 
reasons that the objectives have not been achieved and a description of 
alternative approaches that will be taken.

[[Page 64524]]

(Authority: Section 121 of the Act; 29 U.S.C. 741)

Sec. 361.73  Use of funds.

    (a) A State unit shall use all grant funds received under Title I, 
Part C of the Act to carry out programs and activities that are 
identified under the State's strategic plan, including but not limited 
to those programs and activities that are identified in paragraph (b) 
of this section.
    (b) A State unit shall use at least 1.5 percent of the funds 
received under section 111 of the Act to carry out one or more of the 
following types of programs and activities that are identified in the 
State's strategic plan:
    (1) Programs to initiate or expand employment opportunities for 
individuals with severe disabilities in integrated settings that allow 
for the use of on-the-job training to promote the objectives of Title I 
of the Americans with Disabilities Act of 1990.
    (2) Programs or activities to improve or expand the provision of 
employment services in integrated settings to individuals with sensory, 
cognitive, physical, and mental impairments who traditionally have not 
been served by the State vocational rehabilitation agency.
    (3) Programs or activities to maximize the ability of individuals 
with disabilities to use rehabilitation technology in employment 
settings.
    (4) Programs or activities that assist employers in accommodating, 
evaluating, training, or placing individuals with disabilities in the 
workplace of the employer consistent with the provisions of the Act and 
Title I of the Americans with Disabilities Act of 1990. These programs 
or activities may include short-term technical assistance or other 
effective strategies.
    (5) Programs or activities that expand and improve the extent and 
type of an individual's involvement in the review and selection of his 
or her training and employment goals.
    (6) Programs or activities that expand and improve opportunities 
for career advancement for individuals with severe disabilities.
    (7) Programs, projects, or activities designed to initiate, expand, 
or improve working relationships between vocational rehabilitation 
services provided under Title I of the Act and independent living 
services provided under Title VII of the Act.
    (8) Programs, projects, or activities designed to improve 
functioning of the system for delivering vocational rehabilitation 
services and to improve coordination and working relationships with 
other State agencies and local public agencies, business, industry, 
labor, community rehabilitation programs, and centers for independent 
living, including projects designed to--
    (i) Increase the ease of access to, timeliness of, and quality of 
vocational rehabilitation services through the development and 
implementation of policies, procedures, systems, and interagency 
mechanisms for providing vocational rehabilitation services;
    (ii) Improve the working relationships between State vocational 
rehabilitation agencies and other State agencies, centers for 
independent living, community rehabilitation programs, educational 
agencies involved in higher education, adult basic education, and 
continuing education, and businesses, industry, and labor 
organizations, in order to create and facilitate cooperation in--
    (A) Planning and implementing services; and
    (B) Developing an integrated system of community-based vocational 
rehabilitation services that includes appropriate transitions between 
service systems; and
    (iii) Improve the ability of professionals, advocates, business, 
industry, labor, and individuals with disabilities to work in 
cooperative partnerships to improve the quality of vocational 
rehabilitation services and job and career opportunities for 
individuals with disabilities.
    (9) Projects or activities that ensure that the annual evaluation 
of the effectiveness of the program in meeting the goals and objectives 
in the State plan, including the system for evaluating the performance 
of rehabilitation counselors, coordinators, and other personnel used in 
the State, facilitates and does not impede the accomplishment of the 
purpose of this part, including serving individuals with the most 
severe disabilities.
    (10) Projects or activities to support the initiation, expansion, 
and improvement of a comprehensive system of personnel development.
    (11) Programs, projects, or activities to support the provision of 
training and technical assistance to individuals with disabilities, 
business, industry, labor, community rehabilitation programs, and 
others regarding the implementation of the Rehabilitation Act 
Amendments of 1992, of Title V of the Act, and of the Americans with 
Disabilities Act of 1990.
    (12) Projects or activities to support the funding of the State 
Rehabilitation Advisory Council and the Statewide Independent Living 
Council.

(Authority: Sections 101(a)(34)(B) and 123 of the Act; 29 U.S.C. 
721(a)(34)(B) and 743)

Sec. 361.74  Allotment of Federal funds.

    (a) The allotment and any reallotment of Federal funds under Title 
I, Part C of the Act are computed in accordance with the requirements 
of section 124 of the Act.
    (b) If at any time the Secretary determines that any amount will 
not be expended by a State in carrying out the purpose of this subpart, 
the Secretary makes that amount available to one or more other States 
that the Secretary determines will be able to use additional amounts 
during the fiscal year. Any amount made available to any State under 
this paragraph of this section is regarded as an increase in the 
State's allotment for that fiscal year.

(Authority: Section 124 of the Act; 29 U.S.C. 744)

[FR Doc. 95-30344 Filed 12-14-95; 8:45 am]
BILLING CODE 4000-01-P

Complete official Federal Register PDF

FR Doc. 95-30327 Business Loan Programs
[Federal Register Volume 60, Number 241 (Friday, December 15, 1995)]
[Proposed Rules]
[Pages 64356-64401]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30327]

========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

========================================================================

Federal Register / Vol. 60, No. 241 / Friday, December 15, 1995 / 
Proposed Rules

[[Page 64356]]

SMALL BUSINESS ADMINISTRATION

13 CFR Parts 108, 116, 120, 122, 131

Business Loan Programs

AGENCY: Small Business Administration (SBA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: In response to President Clinton's government-wide regulatory 
review directive, SBA has completed a page-by-page and line-by-line 
review of all of its existing regulations. SBA determined that it could 
eliminate some regulations and consolidate, clarify, and simplify the 
remainder. This proposed rule consolidates five current CFR parts into 
one Part to be known as Part 120. The surviving Part 120 covers 
virtually all policies and regulations, other than size standards, 
applicable to SBA's business (non-disaster) loan programs. Almost all 
provisions have been reworded, renumbered, and relocated. There are a 
few new or revised policies. Several sections have been deleted. 
However, most of the revisions merely streamline and clarify the 
regulations and do not represent substantive change.

DATES: Comments must be submitted on or before January 16, 1996.

ADDRESSES: Address written comments to David R. Kohler, Associate 
General Counsel for General Law, (120) Small Business Administration, 
409 3rd Street S.W., Washington, D.C. 20416.

FOR FURTHER INFORMATION CONTACT: Ronald Matzner, Associate Deputy 
General Counsel; Office of General Counsel, at (202) 205-6882.

SUPPLEMENTARY INFORMATION: On March 4, 1995, President Clinton directed 
all federal agencies to conduct a page-by-page, line-by-line review of 
their existing regulations to determine which could be eliminated or 
streamlined. The President's directive complemented SBA's ongoing 
reinvention effort, which had already targeted portions of the business 
loan programs for streamlining and simplification. From its review of 
its business loan programs, SBA is proposing to eliminate many pages of 
business loan regulations and consolidate and simplify the remainder.
    The proposed rule combines Parts 108, 116, 120, 122 and 131 of 13 
CFR into one new Part to be known as Part 120. The new Part 120 will 
regulate all of SBA's non-disaster financial assistance to small 
businesses under its general business loan program (``7(a) loans''), 
its microloan demonstration program (``Microloans''), and its 
development company program (``504 loans'').
    Many repetitive and overlapping sections from the current 
regulations will be eliminated. The remaining provisions will be easy 
to find and easy to understand. Formerly, provisions applicable to a 
business loan program were often located in different Parts. Sometimes 
unintended differences developed between the loan programs in the 
interpretation or implementation of similar program policies because of 
minor inconsistencies in the language of the provisions in the several 
Parts. These inconsistencies have been eliminated.
    In the proposed rule, the basic requirements that apply to all of 
the business loan programs are located in subpart A. These include 
elements currently found in portions of Parts 108, 116, and 120. 
Policies specific to a particular program are in the separate subpart 
applying to that program. Rules specific to 7(a) loans will be in 
subpart B and include elements currently in portions of Parts 116, 120, 
and 122. Regulations applying to SBA's special purpose loans currently 
in Part 122 and a portion of Part 116 will be in subpart C. Subparts D, 
E, and F will contain rules regarding lenders, program administration, 
and the secondary market currently found primarily in Part 120. The 
loan moratorium provisions presently in Part 131 will also be in 
subpart E. Subpart G will contain rules specific to Microloans 
currently in Part 122. Finally, regulations applying only to 504 loans 
currently located in Part 108 will be in subpart H. The following chart 
summarizes the proposed rule:

------------------------------------------------------------------------
         Subpart          Subject matter covered     Section  numbers   
------------------------------------------------------------------------
Introduction............  Overview of Part 120;   120.1 to 120.99.      
                           definitions.                                 
A.......................  Policies applicable to  120.100 to 120.199.   
                           all business loans.                          
B.......................  Loanmaking policy       120.200 to 120.299.   
                           specific to                                  
                           Guarantees and Direct                        
                           7(a) Loans.                                  
C.......................  Special Purpose Loans.  120.300 to 120.399.   
D.......................  Lenders...............  120.400 to 120.499.   
E.......................  Loan Administration...  120.500 to 120.599.   
F.......................  Secondary Market......  120.600 to 120.699.   
G.......................  Microloan               120.700 to 120.799.   
                           Demonstration Program.                       
H.......................  Development Company     120.800 to 120.899.   
                           Loan Program (504).                          
------------------------------------------------------------------------

    The most noticeable change in the proposed regulation is in the 
format. The rule is written in a ``user-friendly'', ``plain-language'' 
style. Provisions have been grouped in logical sequences. Descriptive 
headings make it easier to find sections. Hyphenated section numbers 
are no longer used. Questions and answers are sometimes used. Wherever 
possible, ordinary language is used instead of ``government-speak''.
    SBA's intent was to write regulations that provide easy-to-
comprehend notice of the general content of a policy, rather than 
detailed information explaining or expounding upon that policy. Much 
explanatory material currently in the regulations and used primarily by 
SBA personnel to implement SBA's programs has been eliminated from the 
proposed rule, but is available to the public and may be found in SBA 
policy guidances, Standard Operating Procedures (``SOPs''), and other 
SBA materials.
    Most of the revisions do not represent policy changes. In many 
cases, the wording of the regulation has been changed to conform to 
actual conduct. Although SBA is not aware of any instances, SBA 
requests comments regarding any inadvertent substantive changes which 
may have been caused by rewording and format changes. 

[[Page 64357]]

    There are a few substantial policy changes in the proposed rule, 
however. For example, the ``alter ego'' rule has been completely 
revised making more Passive Companies eligible for financial 
assistance, and new provisions are being proposed allowing Certified 
Development Companies (``CDCs'') to expand into other areas not being 
adequately serviced by the existing CDCs in those areas. These and 
other substantive policies are explained in detail below in the section 
by section analysis.
    Comments to this proposed rule are invited, including suggestions 
for further clarification and streamlining. Send them to the person and 
address noted above, within the time specified.
    Each subpart is addressed separately below. Conversion tables are 
provided detailing all deletions, consolidations, relocations, and 
policy changes. Immediately below is a chart showing the location of 
surviving material by Parts.

------------------------------------------------------------------------
Former part                                                New section  
     #          Subject matter        New 120 subpart       number(s)   
------------------------------------------------------------------------
108........  Development Company   H...................      120.800-899
              Loans.                                                    
116........  Subpart A--Veterans.  N/A.................          120.104
116........  Subpart B--Flood      N/A.................          120.170
              Insurance.                                                
116........  Subpart C--Lead-      N/A.................          120.173
              based Paint.                                              
116........  Subpart D--           N/A.................          120.172
              Floodplain                                                
              Management and                                            
              Woodlands                                                 
              Protection.                                               
116........  Subpart E--Coastal    N/A.................          120.175
              Barrier Resources                                         
              Act.                                                      
120........  Subpart--General;     Dispersed in Intro.,            120.1
              Subpart A--Loan-      Subpart A, Subpart                  
              Making Policy.        B..                                 
120........  Subpart B--Loan       Subpart E...........      120.500-599
              Administration.                                           
120........  Subpart C--Loan       Subpart D...........  ...............
              Participants.                                             
120........  Subpart D...........  Subpart D...........  ...............
120........  Subpart E...........  Subpart D...........  ...............
120........  Subpart F...........  Subpart F...........  ...............
120........  Subpart G...........  Subpart F...........  ...............
122........  Subpart A--General    Dispersed in          ...............
              Provisions.           Introduction,                       
                                    Subpart A, Subpart                  
                                    B.                                  
122........  Subpart B--Special    Subpart C...........  ...............
              Purpose Loans.                                            
131........  Loan Moratorium.....  Subpart E...........      120.532-536
------------------------------------------------------------------------

    Definitions applicable to all business loans are located in 
Sec. 120.10, combining separate definitions previously in Parts 108 and 
120. Nearly all have been reworded. Some definitions have been added, 
and some have been eliminated because they were redundant or were 
incorporated into the text. Of particular note is the definition of 
``Associate,'' which was broadened. Conversely, the definition of 
``close relative'' was limited to the closest family relationship. The 
net effect of the changes is to pinpoint more effectively the 
individuals subject to the ethical requirements and conflict of 
interest prohibitions of the regulations. Terms which are defined in 
the proposed rule are capitalized in this preamble for consistency. In 
addition, references to SBA Regional offices and officers have been 
eliminated and usually, but not always, replaced with a reference to 
District Director because of SBA's recent restructuring.
    A detailed listing of changes specific to each subpart follows.
120 Subpart A and B--General Loan Policy and Guaranteed and Direct 7(a) 
Loans
    The following is a conversion table for Subparts A and B:

----------------------------------------------------------------------------------------------------------------
                                                              Action(s) (Note: all      Extent of policy change,
      Former section  number         New part 120 number    sections were renumbered      if any; comments on   
                                     for loan provisions     and moved, or deleted)            action(s)        
----------------------------------------------------------------------------------------------------------------
116.1-116.3.......................  120.104..............  Revised; Subpart was        Minor policy change;     
                                                            split; provisions moved     explanatory material and
                                                            to program Parts.           definitions will be in  
                                                                                        SOP or other policy     
                                                                                        material.               
116.10-116.12.....................  120.170..............  Revised; provisions         No policy change;        
                                                            condensed.                  explanatory material    
                                                                                        will be in SOP or other 
                                                                                        policy material.        
116.20-116.23.....................  120.173..............  Revised; provisions         No policy change;        
                                                            condensed.                  explanatory material    
                                                                                        will be in SOP or other 
                                                                                        policy material.        
116.30-116.35.....................  120.172..............  Revised; provisions         No policy change;        
                                                            condensed.                  explanatory material    
                                                                                        will be in SOP or other 
                                                                                        policy material.        
116.40-116.41.....................  120.175..............  Revised; provisions         No policy change.        
                                                            condensed.                                          
116 Appendix A....................  N/A..................  Deleted...................  No policy change.        
                                                                                        Material no longer      
                                                                                        needed.                 
116 Appendix B....................  N/A..................  Deleted...................  No policy change.        
                                                                                        Material no longer      
                                                                                        needed.                 
120.1-1...........................  120.1................  Revised; some deletion;     No policy change. Some   
                                                            material moved.             explanatory material no 
                                                                                        longer valid.           
120.1-2...........................  120.4................  Revised...................  No policy change.        
120.1-3...........................  120.180..............  Revised...................  No policy change.        
120.1-4...........................  N/A..................  Deleted. Unnecessary......  No policy change.        
120.2.............................  120.10...............  Rewritten.................  No policy change. New    
                                                                                        definitions are added;  
                                                                                        an owner is now         
                                                                                        considered an           
                                                                                        ``Associate.''          
120.2-1...........................  120.1................  Rewritten.................  No policy change.        
120.2-2...........................  120.10...............  Revised...................  See Policy Note above.   
120.2-3...........................  N/A..................  Deleted...................  No policy change.        
                                                                                        Definition will no      
                                                                                        longer be used.         

[[Page 64358]]
                                                                                                                
120.2-4...........................  120.10...............  Revised...................  Minor policy change. This
                                                                                        definition has been     
                                                                                        dropped, but sub-       
                                                                                        definitions were        
                                                                                        modified and included   
                                                                                        elsewhere.              
120.2-5...........................  120.10...............  Revised...................  Minor policy change.     
                                                                                        Definition of Lending   
                                                                                        Institution was dropped.
120.2-6...........................  120.10...............  Revised...................  Minor policy change. Both
                                                                                        definitions were        
                                                                                        dropped.                
120.2-7...........................  N/A..................  Deleted...................  Minor policy change.     
                                                                                        Definition was dropped, 
                                                                                        as no longer used.      
120.2-8...........................  120.470..............  Rewritten.................  No policy change.        
120.3-1...........................  120.2................  Rewritten.................  No policy change.        
120.3-2...........................  120.2(a).............  Rewritten.................  No policy change.        
120.3-3...........................  120.2................  Rewritten.................  No policy change.        
120.3-4...........................  120.101..............  Consolidated with 120.103-  No policy change.        
                                                            1.                                                  
120.100...........................  N/A..................  Deleted...................  No policy change. Section
                                                                                        not needed.             
120.101-1(a)......................  120.100(d)...........  Rewritten.................  No policy change.        
120.101-1(b)......................  120.103..............  Rewritten.................  No policy change.        
120.101-1(c)......................  120.110(j)...........  Revised...................  No policy change. Section
                                                                                        now combined with       
                                                                                        another.                
120.101-2.........................  120.110..............  Revised...................  No policy change.        
120.101-2(a)......................  120.110(k)...........  Revised...................  Clarifies policy         
                                                                                        regarding promotion of  
                                                                                        religion. See Note 1,   
                                                                                        below.                  
120.101-2(b)......................  120.110(g)...........  Revised...................  No policy change.        
                                                                                        explanatory material    
                                                                                        will be in SOP or other 
                                                                                        policy material.        
120.101-2(c)......................  120.110(h)...........  Revised...................  No policy change.        
                                                                                        Needless wording was    
                                                                                        deleted.                
120.101-2(d)......................  120.110(b)(c),         Revised; new rule included  Major policy changes. See
                                     120.111.                                           Note 2, below.          
120.101-2(d) (1) through (7)......  120.111..............  Revised; New Rule.........  Major policy changes. See
                                                                                        Note 2, below.          
120.101-2(d)......................  120.110(g)...........  Revised...................  No policy change.        
120.101-2(f)......................  120.110(f)...........  Rewritten.................  No policy change.        
120.101-2(g)......................  120.110(m)...........  Revised...................  No policy change.        
120.102...........................  120.120..............  Revised...................  No policy change.        
120.102-1.........................  120.130(f), 120.201..  Revised...................  No policy change.        
120.102-2.........................  120.207, 120.130(d)..  Revised...................  No policy change.        
120.102-3.........................  120.130(a)...........  Revised...................  No policy change.        
120.102-4.........................  120.104, 120.130(b)..  Revised...................  No policy change.        
120.102-4(a)......................  120.104..............  Revised...................  No policy change.        
120.102-4(b)......................  120.104..............  Revised...................  No policy change.        
120.102-5.........................  120.130(c)...........  Revised...................  No policy change.        
120.102-6.........................  120.202..............  Revised...................  No policy change. Wording
                                                                                        changed to reflect      
                                                                                        agency policy.          
120.102-7.........................  120.110(i)...........  Revised...................  Minor policy change. See 
                                                                                        Note 3 below.           
120.102-8.........................  120.130, 120.130(e)..  Revised...................  No policy change.        
120.102-9.........................  None.................  Deleted...................  Minor policy change.     
                                                                                        Provision was not used. 
120.102-10, 120.102-10 (a)-(f)....  120.140, 120.110(o)..  Revised; new Rule.........  Major policy change. See 
                                                                                        Note 4 below.           
120.102-11........................  120.130..............  Revised...................  Minor new policy. 180-day
                                                                                        parameter added.        
120.102-12 (a)-(d)................  120.110(q)...........  Revised...................  Minor policy change. See 
                                                                                        Note 5 below.           
120.103-1(a), 120.103-1(b)........  120.101, 120.102.....  Rewritten.................  Major policy change. See 
                                                                                        Note 6 below.           
120.103-2.........................  120.150..............  Revised...................  No policy change.        
120.103-2(a)......................  120.150..............  Revised...................  No policy change.        
120.103-2(b)......................  120.150(f)...........  Rewritten.................  No policy change.        
120.103-2(c)......................  120.160(a), 120.201..  Revised...................  Minor policy change or   
                                                                                        clarification. See Note 
                                                                                        7 below.                
120.103-2(d)......................  120.160(b)...........  Revised...................  No policy change.        
120.103-2(e)......................  120.160(c), 120.170..  Revised...................  No policy change. Though 
                                                                                        not now specifically    
                                                                                        mentioned in the        
                                                                                        regulation, life        
                                                                                        insurance may still be  
                                                                                        required as part of     
                                                                                        prudent lending.        
120.103-2(f)......................  120.170, 120.172-73,   Revised...................  No policy change.        
                                     120.175-76.                                                                
120.103-2(g)......................  120.160(d)...........  Revised...................  Minor policy change--    
                                                                                        depository plan no      
                                                                                        longer required.        
120.103-2(h)......................  120.200..............  Revised...................  No policy change.        
120.103-3 (a)-(e).................  120.193..............  Revised...................  No policy change.        
120.104-1 (a)-(e).................  120.220..............  Rewritten.................  No policy change.        
120.104-1(f)......................  N/A..................  Deleted...................  Eliminated from statute. 
120.104-2(a)(1)...................  N/A..................  Deleted...................  No policy change; policy 
                                                                                        will now be contained in
                                                                                        SOP or other policy     
                                                                                        guidance.               

[[Page 64359]]
                                                                                                                
120.104-2(a)(2)...................  N/A..................  Deleted...................  Major policy change;     
                                                                                        deleted from the Act.   
120.104-2(a)(3)...................  N/A..................  Deleted...................  Provision eliminated by  
                                                                                        statute (and had never  
                                                                                        been implemented by     
                                                                                        SBA).                   
120.104-2(b)......................  120.221(e)(f)........  Rewritten.................  No policy change.        
120.104-2(c)......................  120.221(b)...........  Rewritten.................  No policy change.        
120.104-2(d)......................  120.222..............  Revised...................  No policy change.        
120.104-2(e)(1)...................  120.222..............  Revised...................  No policy change.        
120.104-2(e)(2)...................  120.221(a)...........  Revised...................  No policy change.        
120.104-2(e)(3)...................  120.223(a),            Revised...................  No policy change.        
                                     120.222(e),                                                                
                                     120.221(d).                                                                
120.104-2(e)(4)...................  120.222(c)...........  Rewritten.................  No policy change.        
120.104-2(f)......................  120.195..............  Rewritten.................  No policy change--       
                                                                                        Clarified that does     
                                                                                        apply to 504 loans. See 
                                                                                        Note 8.                 
120.105...........................  120.176..............  Rewritten; consolidated...  No policy change. Note   
                                                                                        that recent regulatory  
                                                                                        additions appear in     
                                                                                        120.171 and 174. More   
                                                                                        guidance can be found in
                                                                                        SOP.                    
120 Appendix A....................  N/A..................  Deleted...................  No policy change. Terms  
                                                                                        of the agreement are in 
                                                                                        effect. Agreement will  
                                                                                        appear in SOP or other  
                                                                                        policy material.        
122.1.............................  120.1................  Combined..................  No policy change.        
122.2.............................  N/A..................  Deleted...................  No policy change.        
122.3-1...........................  120.180..............  Consolidated..............  No policy change.        
122.3-2...........................  N/A..................  Deleted...................  No policy change.        
122.4.............................  120.176..............  Consolidated..............  No policy change.        
122.5-1...........................  120.101..............  Revised; combined.........  No policy change.        
122.5-2...........................  120.191..............  Revised...................  No policy change.        
122.5-3...........................  120.101, 120.190(d)..  Consolidated; rewritten...  No policy change.        
122.5-4...........................  120.192..............  Rewritten.................  No policy change.        
122.5-5...........................  120.192 (definition.)  Revised...................  No policy change.        
122.6-1(a)(b).....................  120.212..............  Revised...................  No policy change.        
122.6-2...........................  120.530..............  Moved; revised............  No policy change.        
122.6-3, Part 131.................  120.532-535..........  Moved; combined; revised..  No policy change.        
122.7.............................  120.151..............  Rewritten.................  No policy change.        
122.7-1...........................  120.211(a)(b)........  Revised...................  No policy change.        
122.7-2...........................  120.211(c)...........  Rewritten.................  Reference to District    
                                                                                        Director's authority to 
                                                                                        make exceptions will be 
                                                                                        in SOP.                 
122.7-3...........................  120.151..............  Rewritten.................  No policy change.        
122.7-3(a)........................  120.210(a)...........  Revised...................  Minor policy change;     
                                                                                        increase approval will  
                                                                                        be by AA/FA.            
122.7-3(b)........................  120.210(b)...........  Revised...................  No policy change.        
122.7-3(c)........................  120.210(c)...........  Revised...................  No policy change.        
122.8-1...........................  120.213(b)...........  Revised...................  No policy change.        
122.8-2...........................  120.213(b)...........  Revised...................  No policy change.        
122.8-3...........................  120.213(a)...........  Revised...................  No policy change.        
122.8-4...........................  120.214..............  Rewritten.................  No policy change.        
122.8-4(a)........................  120.214(a)...........  Rewritten.................  No policy change.        
122.8-4(b)........................  120.214(a)...........  Rewritten.................  No policy change.        
122.8-4(c)........................  120.214(b)...........  Revised...................  Clarifies that movement  
                                                                                        in amount of loan must  
                                                                                        equal movement in base  
                                                                                        rate.                   
 122.8-4(d).......................  120.214(c)...........  Moved.....................  No policy change.        
122.8-4(e)........................  120.214(d)...........  Moved.....................  No policy change.        
122.8-4(f)........................  120.214(e)...........  Moved.....................  No policy change.        
122.8-4(g)........................  120.214(f)...........  Rewritten.................  No policy change.        
122.8-4(h)........................  120.214(g)...........  Revised...................  No policy change.        
----------------------------------------------------------------------------------------------------------------

    The following chart lists additions to Part 120:

------------------------------------------------------------------------
              Section number                   Subject matter covered   
------------------------------------------------------------------------
120.110(r)................................  Prohibition for businesses  
                                             engaged in political and   
                                             lobbying activities.       
120.110(o)................................  Prohibition for businesses  
                                             engaged in pornographic or 
                                             sexually-oriented (non-    
                                             medical) activities. See   
                                             Note 1 below.              
120.171...................................  Compliance with Child       
                                             Support Obligations as a   
                                             condition of an SBA loan.  
120.174...................................  Earthquake hazards notice.  
120.190...................................  Where a business applies for
                                             a loan.                    
120.193...................................  Use of computer generated   
                                             forms.                     
------------------------------------------------------------------------

    Note 1. SBA often receives eligibility questions from Borrowers 
and Lenders. In the proposed rule, SBA has attempted to delineate 
clearly and succinctly the businesses that are ineligible for SBA 
financial assistance. In particular, SBA field offices, loan 
applicants, Lenders, development corporations and other SBA 
intermediaries have requested guidance concerning the eligibility of 
businesses which may be engaged in religious activities. After 
consulting with the Department of Justice, SBA proposes to provide 
such guidance through these new regulations.
    The present regulation states that churches and religious 
organizations are ineligible for SBA financial assistance. It does 
not specify 

[[Page 64360]]
whether the prohibition extends to businesses principally engaged in 
promoting religion through their activities. Nonetheless, such 
businesses in the past have been found to be ineligible.
    SBA's primary focus is to provide financial assistance to for-
profit small businesses that can contribute to job growth and 
economic development in the United States. Within the limits set by 
the Establishment Clause of the Constitution, SBA does not 
disqualify otherwise eligible small businesses from receiving 
financial assistance merely because they offer religious books, 
articles, or other products for sale or because they support or 
encourage moral and ethical values based upon religious beliefs. At 
the same time, SBA does not make financial assistance available to 
religious entities or their affiliates for use in directly promoting 
or teaching religion.
    The Establishment Clause of the First Amendment, which states 
``Congress shall make no law respecting an establishment of 
religion,'' serves as a limitation on governmental activities with 
regard to religion. The Establishment Clause primarily proscribes 
``sponsorship, financial support, and active involvement of the 
sovereign in religious activity.'' Walz v. Tax Commission, 397 U.S. 
664, 668 (1970). ``Neither a state nor the Federal Government * * * 
can pass laws which aid one religion, aid all religions, or prefer 
one religion over another * * * No tax in any amount, large or 
small, can be levied to support any religious activities or 
institutions, whatever they may be called, or whatever form they may 
adopt to teach or practice religion.'' Everson v. Bd. of Educ., 330 
U.S. 1, 15-16 (1947); see also Grand Rapids School Dist. v. Ball, 
473 U.S. 373, 381 (1985) (quoting this language); McCollum v. Bd. of 
Educ., 333 U.S. 203, 210 (1948) (same).
    Under the proposed rule, SBA would not provide financial 
assistance to businesses principally engaged in teaching, 
instructing, counseling, or indoctrinating religion or religious 
beliefs. While incidental or indirect support of religious 
objectives might be permissible, SBA would not provide financial 
assistance to a newspaper, broadcasting business, day care center, 
or private school principally engaged in such activities.
    Some of the more difficult eligibility inquiries received by SBA 
field offices have involved businesses which engage in activities in 
a secular setting which may be considered to be religious in nature. 
The U.S. Supreme Court has held that aid used to fund specifically 
religious activities in an otherwise substantially secular setting, 
has the primary effect of advancing religion, and therefore violates 
the Establishment Clause. Hunt v. McNair, 413 U.S. 734 (1973); Bowen 
v. Kendrick, 487 U.S. 589, 613 (1988). The facts of each situation 
must be carefully examined. With the above Supreme Court standard in 
mind, SBA proposes to include among ineligible businesses those 
principally engaged in teaching, instructing, counseling or 
indoctrinating religion or religious beliefs, whether the setting is 
religious or secular, because, in SBA's view, financial assistance 
to such small businesses would violate the Establishment Clause.
    SBA field office personnel and others also have sought guidance 
on the eligibility of small businesses which sell sexually oriented 
products or services, or engage in sexually oriented activities. The 
present regulation is silent regarding obscene, pornographic, or 
sexually oriented activities. A business engaging in any such 
activity that is illegal is ineligible under Sec. 120.110(h) of this 
regulation. However, SBA receives inquiries regarding businesses 
engaged in activities which, while not illegal, may be considered by 
the average person to be obscene or pornographic.
    ``Obscene'' material is not protected by the First Amendment. It 
has been defined by the United States Supreme Court in the context 
of a criminal case, Miller v. California, 413 U.S. 15, 24 (1973), as 
follows: ``* * * whether a work which depicts or describes sexual 
conduct is obscene is [determined by] whether the average person, 
applying contemporary community standards, would find that the work, 
taken as a whole, appeals to the prurient interest, whether the work 
depicts or describes, in a patently offensive way, sexual conduct 
specifically defined by the applicable state law, and whether the 
work, taken as a whole, lacks serious literary, artistic, political, 
or scientific value.''
    Under Supreme Court precedent, ``[w]hen the government 
appropriates funds to establish a program, it is entitled to define 
the limits of that program.'' Rust v. Sullivan, 114 L.Ed.2d 233, 256 
(1991). In implementing its programs, SBA must also follow the 
Congressional mandate set forth in Section 4(d) of the Small 
Business Act (15 U.S.C. 633(d)) (``the Act'') to consider the public 
interest in granting or denying an application for SBA financial 
assistance.
    Having considered the legal precedent and the Congressional 
mandate, SBA has determined that it may exclude small businesses 
engaging in lawful activities of an obscene, pornographic, or 
prurient sexual nature. Under the proposed rule, SBA would not 
provide financial assistance to small businesses which present live 
performances of a prurient sexual nature or which derive significant 
gross revenue from the sale, on a regular basis, of products or 
services, or the presentation of depictions or displays, of a 
pornographic, obscene, or prurient sexual nature. Thus, an 
establishment featuring nude dancing, or a book, magazine or video 
store containing merchandise of a prurient sexual nature would not 
be eligible for SBA financial assistance if the obscene, 
pornographic, or prurient activity contributed to the generation of 
a significant portion of the gross revenue of the business.
    SBA considers this proposed rule to be consistent with its 
obligation to direct its limited resources and financial assistance 
to small businesses in ways which will best accomplish SBA's 
mission, serve its constituency, and serve the public interest. 
Applicants' First Amendment freedoms are in no way abridged. They 
may still express their views, exercise their freedoms, operate 
their businesses, and obtain any other aid available to them.
    SBA is considering the use of a percentage of gross revenue 
instead of ``significant'' in the final formulation of this rule and 
requests commenters to focus particularly on the relative merits of 
the two approaches and what percentage would be appropriate.

    Note 2. The proposed regulation establishes a new ``Eligible 
Passive Company'' rule replacing the current ``alter ego'' rule. The 
new rule will be found at Sec. 120.111. An ``Eligible Passive 
Company'' is defined as an entity which does not engage in regular 
and continuous business activity, which leases real or personal 
property to an Operating Company for use in the Operating Company's 
operations. SBA generally makes business loans only to small 
businesses engaged in regular business activities, and prohibits 
such assistance to entities engaged in passive investment or real 
estate development, or which do not engage in regular and continuous 
activity as an operating business. SBA calls such entities ``passive 
businesses.'' At the same time, SBA recognizes that valid business 
reasons may exist for an Operating Company not to own the real 
estate and fixed assets used to conduct its business. This proposed 
rule would allow certain passive businesses to be eligible for SBA 
assistance if that assistance is used only to acquire and/or improve 
real or personal property leased to a small business and is used in 
that small business' operations. The proposed rule would eliminate 
certain requirements and restrictions which presently limit the use 
of real estate holding entities in SBA's business-loan and 
development company programs.

    For purposes of these regulations, an Operating Company is 
defined in section 120.100 as a small business actively currently 
involved in conducting business operations or about to be located on 
real property owned by an Eligible Passive Company, or using or 
about to use in its business operations, personal property owned by 
an Eligible Passive Company.
    Many years ago, SBA agreed to assist eligible Operating 
Companies seeking SBA financial assistance through their affiliated 
``mirror image'' passive businesses by creating an exception for 
such ``alter egos''. Subsequent modifications to the mirror image 
requirement permitted variations in ownership percentages between 
the operating business and the alter ego for immediate family 
members. Such variances led to conflicting interpretations of the 
policy, which have frustrated its original intent and confused both 
the public and SBA personnel. Such variances limited the 
effectiveness of the intended assistance. In addition, the variances 
caused inconsistencies between the 7(a) loan program and the 
development company loan program.
    On February 22, 1994, SBA published (59 FR 8425) a proposed rule 
(``1994 proposal'') to eliminate the conflicting interpretations and 
inconsistencies and to revise the family member common ownership 
threshold to extend the alter ego exception to additional passive 
businesses. SBA received more than twenty detailed comments 
suggesting changes in the proposal. It also has received many other 
suggestions and recommendations from small business owners, 
development companies, lending institutions and SBA employees at 
regulatory partnership meetings and other outreach activities 
conducted by SBA. After considering these comments and suggestions, 
SBA has revised its thinking sufficiently to 

[[Page 64361]]
warrant publication of this new proposed rule, included here as an 
integral part of SBA's overall regulatory streamlining.
    In its 1994 proposal, SBA suggested reducing the common 
ownership threshold for any passive business and Operating Company 
to 20 percent. Most of the comments suggested that, as an exception 
to a ``mirror image'' requirement, a 20 percent threshold was 
insufficient to support a nexus between a passive business and an 
Operating Company. Some suggested that the nexus be increased to 50 
percent, others to 80 percent. However, others suggested that SBA 
eliminate the ``mirror image'' rule altogether. After carefully 
considering all of the options, the goals and the objectives of 
SBA's loan programs, SBA proposes to eliminate the present alter ego 
rule, and allow such a loan whenever it essentially represents 
financial assistance to an Operating Company.
    Many small businesses utilize separate entities to hold the real 
estate or leasehold improvements used in the operation of their 
businesses. SBA now believes that an Eligible Passive Company, 
without regard to its ownership interests, should be an eligible 
entity for SBA financial assistance if it only uses such assistance 
to acquire and/or improve real or personal property which it leases 
to an Operating Company for the conduct of its operations.
    SBA's new proposed ``Eligible Passive Company'' rule recognizes 
that an Eligible Passive Company may be an individual, sole 
proprietorship, corporation, limited liability company, an 
irrevocable trust or any form of partnership. Under the current 
rule, trust ownership of any part of an Eligible Passive Company is 
prohibited in the SBA business loan program. The development company 
program permits the use of trusts as eligible owners. In this 
proposed rule (as in its 1994 proposal), SBA proposes to eliminate 
the inconsistency between the 7(a) loan program and the development 
company loan program. SBA believes that there is no reason to 
prohibit a small business concern using the SBA's business loan 
programs from taking advantage of the tax and planning benefits 
which may be inherent in the use of an irrevocable trust. Trust 
eligibility shall be determined by the eligibility status of the 
trustor (grantor/settlor), with all donors to the trust being 
presumed conclusively to have trustor status for eligibility 
purposes.
    SBA welcomes comments on whether use of a revocable trust should 
also be permitted. While this would give Borrowers greater planning 
flexibility, the trustor's reserved authority to amend the trust 
might lead to fronts or other abuses. Under this proposed rule, an 
Operating Company must be an eligible small business under SBA's 
standards, and the proposed use of proceeds by the Eligible Passive 
Company would have to be an eligible use if the Operating Company 
were obtaining the financing directly. This ensures that the 
Eligible Passive Company will utilize SBA's financial assistance in 
the same manner as an eligible small business. As suggested by 
several comments on the 1994 proposal, both the Eligible Passive 
Company and the Operating Company must meet SBA's size standards (13 
CFR Part 121).
    In response to other comments on the 1994 proposal, the new rule 
clarifies that the lease between the Eligible Passive Company and 
the Operating Company must be subordinated to SBA's security 
interest, mortgage or trust deed lien and the Eligible Passive 
Company (as landlord) must pledge as collateral an assignment of 
rents derived from the lease. The requirement for an assignment of 
the lease has been eliminated, but an assignment may be required by 
SBA when necessary to perfect a lien under applicable law.
    Several comments urged SBA not to require the Operating Company 
to be a co-Borrower on a loan to an Eligible Passive Company, 
suggesting that legitimate tax and business reasons exist in many 
cases for the Operating Company to be a guarantor instead of a co-
Borrower. Believing this to be a credit and business decision best 
left to the discretion of SBA loan officers, the Borrower, and (in 
the development company program) the development company, SBA has 
provided that the Operating Company may be either a guarantor or a 
co-Borrower in most cases. An exception is created for loans in the 
7(a) loan programs in which working capital funding is included, in 
which case the Operating Company must be a co-Borrower.
    When an Operating Company applies for SBA loan assistance, each 
20 percent or more ownership interest holder in the Operating 
Company must guarantee the loan. Since the Operating Company will be 
a co-Borrower or guarantor when an Eligible Passive Company is the 
Borrower, the proposed rule would extend the same requirement to 
ownership interests of both the Operating Company and the Eligible 
Passive Company.
    Several comments noted that it is common for an Operating 
Company to need working capital when the Eligible Passive Company 
applies for a loan primarily to finance the acquisition of real or 
personal property. In the past, SBA has required the Eligible 
Passive Company to use the loan proceeds solely to acquire and 
improve property for lease to an Operating Company. Thus, two 
separate SBA loans would be needed--one to the Eligible Passive 
Company for the real property and the other to the Operating Company 
for working capital. The commenters suggested that SBA permit 
proceeds of a single loan to the Eligible Passive Company to be used 
for working capital in the Operating Company. This proposed rule 
adopts these suggestions for the 7(a) loan program, provided that 
the Operating Company is a co-Borrower. The loan proceeds for 
working capital would be allocated to the Operating Company, while 
those for acquisition and improvement of property for lease to the 
Operating Company would be allocated to the Eligible Passive 
Business. Under this approach, small businesses would no longer 
incur duplicate costs and would benefit by reduced paperwork and a 
streamlined loan process.
    Several comments noted that a trust, established to take 
advantage of tax and planning benefits inherent in the trust form, 
may have a need to engage in other activities. They argued that SBA 
should not prohibit a trust which qualifies as an Eligible Passive 
Company from engaging in activities other than the leasing of 
property to the Operating Company. SBA agrees. Accordingly, under 
this proposed rule, a trust qualifying as an Eligible Passive 
Company may engage in other activities authorized under its trust 
documents. The Trustee will need to certify to SBA (and provide 
pertinent language from the trust document) that the Trustee has 
authority to act, and that the trust has the authority to borrow 
funds, pledge trust assets and lease the property to the Operating 
Company. The Trustee also will need to provide SBA with a list of 
all trustors and donors.

    Note 3. To be eligible for SBA financial assistance, the 
products and services of a business must be available to the general 
public. Because the current rule refers only to recreational and 
amusement enterprises, it is misleading and confusing, and is not 
uniformly enforced by SBA field offices. The proposed rule clarifies 
that private clubs and businesses that limit the number of members 
for reasons other than capacity are ineligible for SBA financial 
assistance.

    Note 4. The current regulations have separate conflict-of-
interest sections for Lenders and development companies. SBA has re-
written and consolidated the sections. The prohibitions are clear 
and consistent for all business loan program participants. The 
proposed rule expands the categories of individuals subject to the 
requirements and may encompass additional acts not specifically 
enumerated.

    Note 5. The prohibition against assisting a business which 
previously has caused SBA to sustain a loss is currently stated 
explicitly only in the 7(a) regulations, although it is applied in 
all of SBA's business loan programs. Its inclusion in subpart A 
clarifies that the policy applies to all business loans. 
Considerable explanatory material currently in the 7(a) regulation 
has been removed and will be placed in an SOP or other policy 
guidance.

    Note 6. SBA may provide financial assistance only if the 
applicant shows that the desired credit is needed and not otherwise 
available on reasonable terms. In Sec. 120.101, SBA clarifies its 
present policy. The current provision, Sec. 120.103-1 uses the 
language ``not otherwise available on reasonable terms'' without 
indicating any factors which should be considered in determining 
what is reasonable. Section 3(h) of the Act defines ``credit 
elsewhere'' as the availability of credit from non-Federal sources 
on reasonable terms and conditions taking into consideration the 
prevailing rates and terms in the community in or near where the 
concern transacts business, for similar purposes and periods of 
time. SBA believes the language in section 3(h) clarifies the credit 
elsewhere test and proposes to include the language in Sec. 120.101. 
In addition, the current regulation provides that the certification 
made by a Lender in its application for an SBA guarantee is 
generally accepted as sufficient documentation that the desired 
credit is unavailable to the applicant. In the proposed 
Sec. 120.101, SBA clarifies and reaffirms its existing policy that 
the Lender or CDC must have examined the availability of credit to 
the applicant, have based its 

[[Page 64362]]
certification upon that examination, and have documentation in its file 
to support the certification.
    In the 7(a) program, SBA often required applicant principals and 
owners to use personal assets before granting financial assistance, 
unless undue hardship would result. In the 504 program, SBA did not 
enforce this policy and rarely required applicants to use their own 
personal resources.
    In this proposed rule, SBA clarifies that there is no difference 
between the business loan programs regarding evidence of need. SBA 
will consider the personal wealth and resources of the principals 
and owners in determining an applicant's need for SBA financial 
assistance in all business loan programs, and SBA may require the 
principals and owners of the applicant to use their personal 
resources before SBA will grant financial assistance.

    Note 7. Current regulations require owners of 20 percent or more 
of a business to guarantee an SBA loan. Under SBA's current SOP, SBA 
may require owners of between 5 and 20 percent of a business to 
guarantee a loan. Since the public is not always aware of its SOP, 
SBA is including the latter policy in this proposed rule. Rather 
than set an arbitrary lower limit of 5 percent (or any other 
number), SBA proposes that the rule state that SBA may require 
holders of interests of less than 20 percent of an applicant to 
guarantee an SBA loan, when appropriate under prudent underwriting 
criteria.

    Note 8. The use of SBA Form 159 (Compensation Agreement) in the 
504 program has been a subject of controversy for some time. The Act 
requires 7(a) applicants to certify the names of and fees paid to 
all professionals or other representatives engaged by the applicant 
in connection with the SBA financial assistance. Current section 
120.104-2(f) implements the statutory requirement. Title V of the 
Small Business Investment Act, 15 U.S.C. 695 (``Title V'') does not 
have a corresponding provision. Despite this, SBA, citing section 
7(a)(13) of the Act, has generally extended the requirement to the 
development company program. Current section 108.503-6(e) requires 
the loan application submitted to SBA by a Certified Development 
Company (CDC) to disclose the amount of all fees paid, the names of 
the fee recipients, and a description of the services rendered. Most 
SBA field offices require in 504 loan authorizations that Form 159 
be submitted. Many Lenders in the 7(a) program and CDCs in the 504 
Program contend that Form 159 has become a burden upon the 
Borrowers, the Lenders and the CDCs. The 504 industry, in 
particular, has asked SBA to eliminate the form.

    President Clinton has directed Federal agencies to reduce the 
paperwork burden upon the public whenever possible. However, this 
requirement is contained in the Act. Therefore, SBA may not 
eliminate the regulation with respect to the 7(a) program without a 
statutory change. Congress has recently held hearings regarding the 
disclosure of fees because of concern about the increased number of 
investigations of fraud by applicant representatives. As a result, 
SBA believes it is prudent to continue to require full disclosure of 
all fees. Since SBA sees no reason to differentiate among the 
various business loan programs regarding this issue, SBA is 
proposing in this Rule to maintain the requirement for all business 
loans until such time that Congress revisits the issue.
120  Subpart C--Special Purpose Loans
    The proposed new Subpart C reorganizes and consolidates the current 
subpart B of Part 122, ``Special Purpose Loans'' with a portion of Part 
116.
    In Secs. 122.51 through 122.51-6, currently known as ``Handicapped 
Assistance Loans,'' the word ``Disabled'' replaces the word 
``Handicapped'' wherever it appears. Section 122.60 ``Rural Loans'' is 
deleted since this special program expired on September 30, 1995. The 
section currently beginning at Sec. 122.61, ``Microloan Demonstration 
Project,'' has been reorganized as subpart G of Part 120 to separate it 
from 7(a) Special Loan Programs. There are no major substantive changes 
in the remaining eleven Special Loan Programs. A new revolving credit 
program--CapLines--replaces the GreenLine program and is outlined in 
Sec. 120.395.
    In the proposed rule, this subpart outlines the significant 
policies of each program in a streamlined format while deleting 
superfluous and repetitious material.
120  Subpart D--Lenders
    Proposed subpart D reorganizes and consolidates current Part 120 
subparts C (``Loan Participants''), D (``Preferred Lenders Program''), 
and E (``Certified Lenders Program''). Sections have been grouped 
together to aid the reader in locating information. There are only a 
few substantive changes in subpart D.
    Proposed new Sec. 120.430 states specifically that SBA may review a 
Lender's records relating to SBA guaranteed loans during normal 
business hours. In addition, Sec. 120.420, which is the former 
Sec. 120.301-7, contains a new provision (120.420(c)) restricting the 
use of SBA loans by Non-Depository Lenders.
    (a) Certified Lenders Program (``CLP''). The proposed rule deletes 
the definitions found now at Sec. 120.501. Some of the terms are not 
used in the subpart. Others apply to the entire Part and will appear in 
Sec. 120.10.
    The proposed rule streamlines the procedure for obtaining CLP 
status. Thus, current Sec. 120.502-1 will be deleted and replaced with 
new Sec. 120.441 authorizing SBA District Directors (whose decision is 
final) to approve and renew CLP Lenders. Section 120.441(c) clarifies 
that CLP status applies only in the SBA office which approved that 
status.
    The proposed rule will eliminate current Sec. 120.502-2, which 
specifies factors which SBA will consider in deciding whether a Lender 
should become a CLP lender. Its replacement, Sec. 120.441(a), retains 
several of the current seven considerations. SBA may consider other 
factors as well.
    Proposed Sec. 120.442, ``Suspension or revocation of CLP status'' 
is new, and follows the mechanism and procedure established for PLP 
lenders.
    (b) Preferred Lenders Program (``PLP''). The proposed PLP 
regulations delete superfluous information and have been reorganized 
into a more logical sequence. They also will reflect SBA reorganization 
and program changes, including the establishment of the centralized PLP 
processing office located in Sacramento, California.
    The proposed rule deletes the definitions found now at 
Sec. 120.401. Some of the terms are not used in the subpart. Others 
apply to the entire Part and will appear in Sec. 120.10.
    Current Sec. 120.402-1 describes how a Lender initially may become 
a PLP Lender. Proposed Sec. 120.451(a) describes new procedures 
following SBA's structural reorganization. The branch or district 
office will forward its nomination of a Lender or the Lender's request 
for PLP status to the loan processing center rather than to a regional 
office. The district office's recommendation and the loan processing 
center's recommendation are forwarded to the AA/FA who makes the final 
determination. This section also provides for expansion and 
recertification of PLP status by the AA/FA after a review of the PLP 
Lender by SBA.
    The section clarifies that if a PLP Lender is not already a CLP 
Lender in a territory into which it seeks to expand its PLP status, it 
will automatically obtain CLP status in the territory when it is 
granted an extension of its PLP status into that territory without 
approval from the District Office.
    Proposed Sec. 120.451(b)(current Sec. 120.402-2) describes the 
factors SBA will consider in evaluating PLP nominations. SBA has 
eliminated the requirement that the Lender be a Certified Lender before 
being considered as a PLP Lender.
    Proposed Sec. 120.451(c) is a new provision providing that the AA/
FA will designate the ``area'' in which a PLP Lender can make PLP 
loans. SBA believes that centralizing this function in the AA/FA will 
result in a uniform policy and practice. 

[[Page 64363]]

    The proposed rule consolidates the current Sec. 120.403-1 
(statutory ceiling), Sec. 120.403-5 (interest rates), and Sec. 120.403-
6(b)(fees) into Secs. 120.151, 120.213, 120.214, 120.221 and 120.222 
respectively. The proposed rule deletes the current Sec. 120.403-3 
(credit allocation) because it is no longer used.
    The proposed rule deletes the current Sec. 120.403-6(a), which 
limits the fees a PLP lender can charge if it sells the guaranteed 
portion of a loan within six months of disbursement, because SBA feels 
there is no need to retain a cap on this fee. It consolidates the 
current Sec. 120.403-7(c) into Sec. 120.430.
    The current Sec. 120.403-7 has been rewritten as the new 
Sec. 120.452(a) specifying the requirements of PLP loan processing. The 
section specifying the percentage of a PLP loan that SBA will guarantee 
has been moved from the current Sec. 120.403-2 to Sec. 120.452(a)(3). 
In proposed Sec. 120.452(b), SBA describes the new procedures for 
approving a PLP loan by submitting documents to the loan processing 
center, which issues an SBA loan number.
    The proposed rule consolidates the current Secs. 120.404-1 through 
120.405-1 concerning servicing and liquidation into proposed 
Sec. 120.453, and deletes current Secs. 120.405-2 through 120.405-4 
because they are redundant or adequately described in SBA's SOP.
    In proposed Sec. 120.451(f), SBA has added a new provision to allow 
a PLP Lender to submit a request to expand its territory to the SBA 
loan processing center.
    (c) Small Business Lending Companies (``SBLC''). The proposed rule 
revises the SBLC regulations for clarity and to eliminate details of 
the program better suited to an SOP. The sections have been renumbered, 
reorganized in a more logical structure, and presented in a question 
and answer format.
    Finally, a provision on SBA's authority to suspend or revoke an 
SBLC's license is proposed at Sec. 120.475.
120  Subpart E--Loan Administration
    New subpart E proposes general loan administration rules. 
Basically, these proposed rules reflect existing SBA policies. Any SBA 
field office can provide more detailed guidance concerning any aspect 
of these proposed rules.
    Proposed Secs. 120.510 and 120.511 describe the servicing 
responsibilities of the parties making loans. SBA services direct loans 
that it makes without the participation of a Lender, while Lenders 
service loans they make with the SBA guarantee. After SBA honors its 
guarantee, the Lender generally continues to service the loan. Proposed 
Sec. 120.512 describes this arrangement.
    Proposed Sec. 120.513 lists the servicing actions that require the 
concurrence of the Lender and the SBA because of their importance to 
the effective and efficient operation of SBA's loan program. The list 
includes the provisions contained in the participation agreement which 
a Lender executes with SBA to allow it to make 7(a) guaranteed loans, 
such as the alteration of terms and conditions of any loan instrument, 
the release of collateral with a value over 20 percent of the original 
amount of the loan, the acceleration of the maturity of a note, and the 
initiation of litigation.
    SBA has the authority to purchase the guaranteed portion of a loan 
at any time, and proposed Sec. 120.520 provides that a Lender may ask 
SBA to purchase the guaranteed portion when the Borrower has been 
continuously in default on its installment payments to the Lender for 
more than 60 days. If a Borrower cures a default (see Sec. 120.523) 
before SBA purchases, the Lender's right to request purchase lapses. If 
SBA honors its guarantee, it does not waive any right it may have 
against the Lender because of the Lender's negligence, misconduct, or 
violation of the regulations, the guarantee agreement between the 
lender and SBA, or any of the loan instruments. SBA may sue to recover 
the amounts paid and may assert as a basis for recovery any of the 
grounds set forth in Sec. 120.524.
    A Borrower's obligation to pay principal and interest continues 
after SBA honors its guarantee. Proposed Sec. 120.521 prescribes that 
the interest rate for which the Borrower is liable after the purchase 
continues to be the rate stated in the note if it is a fixed rate note. 
If a loan carries a fluctuating interest rate, the Borrower is obliged 
for the rate in effect at the time of the earliest uncured default 
(where there has been a default), or the rate in effect at the time 
when SBA purchases (where there has been no default). This means that 
no further fluctuations of interest can occur after SBA honors its 
guarantee.
    Proposed Sec. 120.522 provides that the interest rate for which SBA 
is liable when it purchases the guaranteed portion is the rate in the 
note if it is a fixed rate loan, or the rate in effect on the date of 
the earliest uncured default (if a default has occurred) or when SBA 
purchases (if there has been no default). The section provides that SBA 
pays a Lender no more than 120 days interest from the date of a 
Borrower's uncured default, plus any deferment period or time it takes 
for SBA to process a request to purchase. This cut-off period 
encourages a Lender to make timely demand on SBA to purchase. Because 
extenuating circumstances may occur, the proposed section authorizes 
SBA to extend the 120 day time period for good cause.
    Proposed Sec. 120.523 defines ``earliest uncured default'' as the 
date on which a Borrower fails to pay a regular installment payment 
which remains unpaid for 60 days. If a Borrower makes a payment before 
a Lender requests SBA to honor its guarantee, the earliest uncured 
default date advances to the next unpaid installment date. This means 
that if a Borrower cures early defaults, the earliest uncured default 
date continues to move forward.
    SBA does not have to honor its guarantee, under proposed 
Sec. 120.524, if a Lender, amoungst other things, fails to make, close, 
service, or liquidate an SBA guaranteed loan in a prudent fashion. The 
regulation contemplates that a Lender will comply with all the 
provisions of the regulations, the loan guarantee agreement it executed 
with SBA, the loan authorization (which is the document SBA issues to 
state that it is providing its guarantee for a specific loan request), 
and other loan documents. A Lender's failure to disclose material 
facts, a Lender's making material misrepresentations to SBA, or the 
Lender's failure to use SBA provided forms or exact computerized 
facsimile copies also justifies denial of liability under the 
guarantee. Other Lender actions which would support SBA's denial of 
liability on its guarantee include Lender's failure to pay the 
guarantee fee, Lender's late demand on SBA to purchase, or if the 
Borrower has paid the loan in full.
    In order to assure the successful establishment and operation of a 
Borrower, proposed Sec. 120.530 authorizes SBA to defer a Borrower's 
initial payments for a stated period of time. Under proposed 
Sec. 120.531, SBA could extend the maturity of a loan for up to ten 
years beyond its stated maturity if the extension would aid in the 
orderly liquidation of the loan. Proposed Sec. 120.532 defines 
``Moratorium'' to be the period of time during which SBA assumes a 
Borrower's obligation to make installment payments on a guaranteed 
loan.
    Under proposed Sec. 120.533, SBA could grant a Moratorium if the 
business would become or remain insolvent without it; if the business 
would become or remain viable with a Moratorium; if a deferment is not 
available; if all the parties agree that SBA could stop making payments 
at any time; if the Borrower executes a demand 

[[Page 64364]]
note to repay SBA's Moratorium payments; and if SBA obtains security 
which it deems necessary. These conditions supporting a Moratorium 
ensure that the parties know that their obligations continue and that 
SBA expects to be reimbursed for its advances under this procedure.
    Proposed Sec. 120.534 allows SBA to continue a Moratorium for six 
months. SBA may extend a Moratorium for up to five years if a
FR Doc. 95-30327 Business Loan Programs
 Borrower 
could demonstrate its eventual ability to repay the original note (and 
the demand note required for the Moratorium). Proposed Sec. 120.535 
lists the repayment terms for a Moratorium. Under this section, the 
interest rate on the demand note is the same as for the guaranteed 
loan; SBA will apply repayments first to accrued interest and then to 
principal; and SBA may demand payment in full under the demand note or 
accept a repayment schedule.
    Proposed Sec. 120.540 establishes SBA's policy concerning the 
liquidation of collateral. Ordinarily, SBA does not liquidate 
collateral if there is any reasonable prospect that the Borrower or 
guarantor (other than SBA) may repay the loan within a reasonable 
period of time. Without the Borrower's consent, SBA has the authority 
to sell a direct loan, convert a direct loan to a guaranteed or 
immediate participation loan, or convert an immediate participation 
loan to a guaranteed loan or a loan owned solely by the Lender. 
Importantly, this authority enables SBA to take appropriate steps to 
resolve issues and problems concerning a loan. The proposed section 
also provides that SBA will generally use competitive bids or a 
negotiated sale to dispose of collateral. Under the proposed section, 
SBA and the Lender would share all loan payments and recoveries, all 
reasonable expenses, and any security or guarantee which the Lender or 
SBA may receive in connection with a loan. The proposed section 
provides that guarantors of financial assistance have no rights of 
contribution against SBA on a direct or guaranteed loan. The proposed 
section makes clear that SBA is not a co-guarantor with any other 
guarantor, and that SBA's guarantee is unique, distinctive, and of a 
totally different character than the guarantees offered by other 
parties.
    Under applicable federal law, homestead protection for a farmer-
Borrower covers a residence and a reasonable amount of adjoining real 
property (``the collateral'') that are still occupied by the farmer-
Borrower after being acquired by SBA as a result of foreclosure, a 
voluntary conveyance, or conveyance to the government by a trustee in 
bankruptcy. The homestead protection provisions in the proposed rules 
cover SBA direct and guaranteed loans, as well as SBA disaster loans. 
Proposed Sec. 120.550 specifies that a farmer-Borrower who defaults on 
an SBA loan would be allowed to lease the collateral from SBA. Under 
proposed Sec. 120.551, SBA must notify the farmer-Borrower of the 
homestead protection rights within 30 days after SBA acquires the 
property. Under the proposed rule, the farmer-Borrower has to apply to 
the local SBA office for homestead protection within 90 days after SBA 
acquires the property, provide evidence that the farm produces farm 
income reasonable for the area and economic conditions, show that at 
least 60 percent of the farmer's gross annual income came from farm or 
ranch operations in at least 2 out of the last 6 years, that the 
farmer-Borrower has resided on the property during the preceding 6 
years, and that the farmer is personally liable for the debt. This last 
point means that the SBA loan could have been made to any individual or 
entity, so long as the farmer-Borrower was personally liable for the 
debt.
    Under proposed Sec. 120.552, the farmer, under a lease with SBA, 
has to occupy the residence and pay a reasonable rent to SBA. The lease 
can be for a period of up to 5 years, and can be renewed for up to 
another 5 years. During the lease, or at its end, the lessee-farmer has 
the right of first refusal to reacquire the homestead property under 
terms and conditions no less favorable than those offered to any other 
purchaser. If the sale of the homestead property is an installment 
sale, the purchase agreement has to require a down payment of no less 
than 20 percent of the purchase price. The option price to the lessee-
farmer must be the appraised fair market value determined by an 
independent appraisal. SBA cannot demand a payment for the homestead 
property that exceeds the appraised value.
    Under proposed Sec. 120.553, a farmer-Borrower can appeal denial of 
a homestead protection application to the AA/FA. Until a final decision 
is made, the farmer would be allowed to remain on the property. If a 
conflict exists between state law and the SBA homestead provisions, 
state law prevails.
120  Subpart F--Secondary Market
    SBA has consolidated subparts F, G, and H of Part 120 into one new 
Subpart F, governing SBA's secondary market for SBA guaranteed portions 
of loans. Subpart F covers central registration requirements, the 
pooling and sale of SBA guaranteed portions, and the sale of individual 
SBA guaranteed portions that do not comprise part of a Pool. Provisions 
currently found in separate subparts have been consolidated for ease of 
understanding. SBA has renumbered and reordered the resulting 
provisions, but there are no substantive or policy changes.
    The following is a conversion chart explaining where the current 
sections of subparts F, G, and H of 120 will be placed:

------------------------------------------------------------------------
           New section                          Old section             
------------------------------------------------------------------------
120.600.........................  120.601, 120.700, 120.800.            
120.601.........................  120.602, 120.702, 120. 800, 120.802.  
120.610.........................  120.706 and 120.803.                  
120.611.........................  120.707.                              
120.612.........................  120.710 and 120.807.                  
120.613.........................  120.301-2.                            
120.620.........................  120.711 and 120.701.                  
120.621.........................  120.801.                              
120.630.........................  120.703.                              
120.631.........................  120.704.                              
120.640.........................  120.709 and 120.806.                  
120.641.........................  120.713 and 120.809.                  
120.642.........................  120.708.                              
120.643.........................  120.805.                              
120.644.........................  120.804.                              
120.645.........................  120.605,120.605-1.                    
120.650.........................  120.603, 120.604, 120.604-1, and      
                                   120.604-2.                           
120.651.........................  120.605-3.                            
120.652.........................  120.712 and 120.808.                  
120.660.........................  120.605-2, 120.705, and 120.810.      
------------------------------------------------------------------------

    Proposed Sec. 120.600 describes the secondary market. Section 
120.601 contains definitions used in subpart F. Proposed Sec. 120.610 
provides that each Certificate representing either the entire 
individual guaranteed portion of an individual 7(a) guaranteed loan or 
an undivided interest in a Pool consisting of the SBA guaranteed 
portions of a number of 7(a) guaranteed loans (``Certificate'') must be 
in registered form only. This means that there are no bearer 
Certificates. The section also specifies payment terms for 
Certificates.
    Proposed Sec. 120.611 describes the Pools which back Pool 
Certificates, including Pool characteristics and Pool Certificate 
interest rates. In Sec. 120.612, SBA specifies conditions which must be 
met for an SBA guaranteed portion of a loan to be eligible to back a 
Certificate. Among other things, a loan must be current.
    Proposed Sec. 120.613 describes a secondary participation guarantee 
agreement (SPGA). Before an SPGA may be executed, the Lender must 
disburse the full amount of the loan, pay SBA's guarantee fee, and give 
SBA copies of the SPGA and note. 

[[Page 64365]]

    Proposed Sec. 120.620 describes the extent of SBA's guarantee of a 
Pool Certificate. SBA guarantees the timely payment, whether or not 
collected, of principal and interest, and any prepayment of principal 
on the loans. SBA's guarantee to a Registered Holder in a Pool of SBA 
guaranteed portions of loans is backed by the full faith and credit of 
the United States.
    Proposed Sec. 120.621 describes the extent of SBA's guarantee of an 
individual guaranteed portion. SBA guarantees to purchase from the 
Registered Holder the guaranteed portion equal to the unpaid principal 
and interest, less deductions for the servicing fees of the Lender and 
the fiscal and transfer agent (``FTA''). SBA does not guarantee timely 
payment on individual guaranteed portions. SBA's guarantee to a 
Registered Holder is unconditional and is backed by the full faith and 
credit of the United States. SBA's guarantee is triggered when the 
Borrower defaults on installments of principal or interest, the Lender 
fails to send to the FTA any payments it received from the Borrower, or 
the FTA fails to send to the Registered Holder any payments it received 
from the Lender.
    Proposed Sec. 120.630 specifies the qualifications that an entity 
must possess to be a Pool Assembler. Among other things, the entity 
must be subject to regulation by an appropriate agency, have the 
financial capability to assemble acceptable guaranteed portions, and be 
in good standing with SBA. In proposed Sec. 120.631, SBA specifies 
reasons for suspending a Pool Assembler from the secondary market.
    Proposed Sec. 120.640 describes the administration of the Pools and 
individual guaranteed portions. The FTA maintains a registry of 
Certificate owners. Each Pool is self-liquidating, which means that 
there is no substitution of guaranteed portions of loans that are paid 
off by the borrower or SBA. If SBA pays a claim under a guarantee with 
respect to a Certificate, it is subrogated to the rights satisfied by 
the payment. This means that SBA can take any and all steps to be 
reimbursed for payments it makes. Absent an express statutory change, 
no federal, state or local law can preclude or limit SBA's exercise of 
its ownership rights in the portions of loans constituting the Pool 
against which Certificates are issued.
    Proposed Sec. 120.641 requires the Pool Assembler, Registered 
Holder of a Certificate representing an individual guaranteed portion, 
or any subsequent seller to disclose to the purchaser information on 
the Certificate's terms, conditions, and yield. Section 120.642 
specifies the documents that a Pool Assembler must deliver to the FTA 
before the FTA can issue a Certificate, such as a Pool application form 
and documents which evidence the guaranteed portions which comprise the 
Pool. Section 120.643 specifies the documents that a seller must 
provide the FTA before the FTA can issue the initial Certificate for an 
individual SBA guaranteed portion, including documentation of ownership 
and a copy of the note that represents the guaranteed loan.
    Proposed Sec. 120.644 describes certain conditions applying to the 
sale of individual guaranteed portions. Each Certificate which 
represents the guaranteed portion of a single loan must be for the 
entire amount of the guaranteed portion. A Lender (or its Associate) 
cannot purchase the guaranteed portion of a loan which it has made.
    In Sec. 120.645, SBA describes how to transfer a Certificate and 
what information a seller must supply to the FTA. Transfers must comply 
with Article 8 of the Uniform Commercial Code of New York State.
    Under Sec. 120.650 the FTA registers, issues, transfers title to, 
and redeems Certificates. Proposed Sec. 120.651 tells a Registered 
Holder what information it must give to the FTA to replace a 
Certificate because of loss, theft, destruction, mutilation or 
defacement. Section 120.652 authorizes the FTA to collect fees approved 
by SBA.
    Proposed Sec. 120.660 specifies the reasons for SBA to suspend or 
revoke the privilege of a lender, broker, dealer, or Registered Holder 
to participate in the secondary market.
Subpart G--Microloan Demonstration Program
    This proposed subpart revises, amends, and reorganizes the rules 
covering the microloan demonstration program (``microloans'') currently 
located in Part 122. Substantive changes include: (1) Sec. 120.708(c) 
provides a clearer understanding of how SBA determines the interest 
rate charged to an intermediary; (2) Sec. 120.708(e) makes it clear 
that SBA loans to intermediaries are non-recourse unless an 
intermediary causes a loss to SBA by fraud or negligence; and (3) 
Sec. 120.710 requires an intermediary to maintain accurate and current 
books and records, and to report periodically to SBA the status of its 
microloan portfolio.
    The following conversion chart shows where to find the current Part 
122 microloan sections:

----------------------------------------------------------------------------------------------------------------
             Existing section                            Action                           New section           
----------------------------------------------------------------------------------------------------------------
Sec.  122.61 (a) and (b).................  Revised..........................  Sec.  120.700 (a)-(c)             
Sec.  122.61-2 (a)-(c)...................  Retained.........................  Sec.  120.701 (a)-(c)             
Sec.  122.61-2(d)........................  Revised..........................  Sec.  120.701(d)                  
Sec.  122.61-2 (e)-(g)...................  Retained.........................  Sec.  120.701 (e)-(g)             
                                           New..............................  Sec.  120.701(h)                  
Sec.  122.61-3(a)........................  Revised..........................  Sec.  120.700(d)                  
Sec.  122.61-3(b)........................  Revised..........................  Sec.  120.703                     
Sec.  122.61-3(c)........................  Revised..........................  Sec.  120.703(c)                  
Sec.  122.61-4 (a) and (b)...............  Revised..........................  Sec.  120.705                     
Sec.  122.61-4(c)........................  Deleted..........................  ..................................
Sec.  122.61-5...........................  Revised..........................  Sec.  120.704                     
Sec.  122.61-6 (a)-(c)...................  Revised..........................  Sec.  120.707                     
Sec.  122.61-6(d)........................  Revised..........................  Sec.  120.707                     
Sec.  122.61-6(e)........................  Revised..........................  Sec.  120.707                     
Sec.  122.61-6(f)........................  Deleted..........................  ..................................
Sec.  122.61-7...........................  Revised..........................  Sec.  120.708                     
Sec.  122.61-8 (a)-(c)...................  Revised..........................  Sec.  120.710                     
Sec.  122.61-8(d)........................  Deleted..........................  Sec.  120.710                     
Sec.  122.61-9 (a) and (b)...............  Revised..........................  Sec.  120.710                     
Sec.  122.61-10..........................  Retained.........................  Sec.  120.712                     
Sec.  122.61-11(a).......................  Revised..........................  Sec.  120.712                     
Sec.  122.61-11(b).......................  Revised..........................  Sec.  120.702                     

[[Page 64366]]
                                                                                                                
Sec.  122.61-11(c).......................  Retained.........................  Sec.  120.712                     
Sec.  122.61-12..........................  Revised..........................  Sec.  120.711                     
----------------------------------------------------------------------------------------------------------------

Subpart H--Development Company (504) Loan Program
    This proposed rule makes current Part 108 a subpart of Part 120. 
The following conversion chart details the restructuring, subsection-
by-subsection. Those sections of Part 108 applicable to all business 
loans have been consolidated with the corresponding 7(a) provisions and 
placed in subpart A (``Policies Applying to All Business Loans''). 
Sections of Part 108 that apply only to the Development Company Loan 
Program (``504 loans'') will be in this subpart H. Finally, some 
sections of Part 108 have been deleted as delineated in the chart.
Part I--Section-by-Section Analysis of Part 108

----------------------------------------------------------------------------------------------------------------
       Former Sec.  108 subpart                   Proposed action on subpart               Comments on action   
----------------------------------------------------------------------------------------------------------------
Sec.  108.1(a)........................  Condensed and moved to Sec.  120.800.........  No policy change.        
Sec.  108.1(b)........................  Condensed and moved to Sec.  120.800.........  No policy change.        
Sec.  108.1(c)........................  Rewritten and moved to Sec.  120.860-Sec.      No policy change.        
                                         120.862.                                                               
Sec.  108.1(d)........................  Incorporated into Sec.  120.862..............  No policy change.        
Sec.  108.1(e)........................  Eliminated as redundant; incorporated into     No policy change;        
                                         Sec.  120.176.                                 eliminated because      
                                                                                        policy covered by other 
                                                                                        parts.                  
Sec.  108.2...........................  Definitions applying to all business loans     See comments below on    
                                         are in Sec.  120.10. Those applying solely     specific definitions.   
                                         to 504 loans are in Sec.  120.801. Some                                
                                         terms applying only to a certain subsection                            
                                         are defined in the subsection.                                         
Sec.  108.3(a)........................  Rewritten and placed into Sec.  120.881(a).    No policy change.        
                                         Definition of Substantial Increase in                                  
                                         Unemployment is found in Sec.  120.801.                                
Sec.  108.3(b)........................  Eliminated...................................  Deleted because 501 and  
                                                                                        502 programs have been  
                                                                                        eliminated.             
Sec.  108.3(c)........................  Eliminated...................................  Deleted because 501 and  
                                                                                        502 programs have been  
                                                                                        eliminated.             
Sec.  108.3(d)........................  Eliminated...................................  Deleted because 501 and  
                                                                                        502 programs have been  
                                                                                        eliminated.             
Sec.  108.4(a)........................  Eliminated...................................  No change of policy; rule
                                                                                        eliminated because      
                                                                                        inherent in standard    
                                                                                        business practice.      
Sec.  108.4(b)........................  Eliminated, but covered in Sec.  120.826.....  No change in policy; will
                                                                                        be covered in SBA's     
                                                                                        Standard Operating      
                                                                                        Procedure (SOP) or other
                                                                                        policy guidance.        
Sec.  108.4(c)........................  Eliminated, but covered in Sec.  120.826.....  No change in policy; will
                                                                                        be covered in SBA's SOP 
                                                                                        or other policy         
                                                                                        guidance.               
Sec.  108.4(d)........................  Rewritten, clarified, and broadened. Most      Minor policy change: SBA 
                                         provisions consolidated with corresponding     may waive prohibition on
                                         sections of current Part 120 into proposed     member of CDC Board of  
                                         Sec.  120.140. See Note 4, subparts A and B.   Directors being on      
                                         Those applying only to 504 loans are in Sec.   another CDC's Board.    
                                          120.855.                                                              
Sec.  108.4(e)........................  Consolidated with Sec.  108.4(d) and placed    No policy change.        
                                         in Sec.  120.40. Specific examples of                                  
                                         conflicts of interest will be found in SOP.                            
                                         Prohibition against debt refinancing is in                             
                                         Sec.  120.884.                                                         
Sec.  108.4(f)........................  Eliminated...................................  Consolidated into Sec.   
                                                                                        120.176.                
Sec.  108.5(a)........................  Covered in Sec.  120.826; specific             No policy changes.       
                                         explanations and details in SOP.                                       
Sec.  108.5(b)........................  Covered in Sec.  120.826; specific             Miniaturized             
                                         explanations and details in SOP.               reproductions of CDC    
                                                                                        records no longer       
                                                                                        referenced. Other       
                                                                                        technologies now        
                                                                                        available. Specific     
                                                                                        details will be in SOP. 
Sec.  108.5(c)........................  Condensed into Sec.  120.830(c)..............  No policy change.        
Sec.  108.5(d)........................  Condensed into Sec.  120.830(d) and (e)......  Policy change -means of  
                                                                                        delivery will be        
                                                                                        detailed in SOP.        
Sec.  108.5(e)........................  Eliminated...................................  Report considered        
                                                                                        unnecessary under       
                                                                                        Presidential directive  
                                                                                        to reduce paperwork.    
Sec.  108.5(f)........................  Eliminated...................................  No policy change. Not    
                                                                                        required as regulation. 
Sec.  108.6...........................  Eliminated...................................  Reserved sections were   
                                                                                        removed.                
Sec.  108.7(a)........................  Consolidated in Sec.  120.140................  No policy change.        
Sec.  108.7(b)........................  Eliminated. Provision covered in note and      No policy change.        
                                         other closing documents.                                               
Sec.  108.8(a)........................  Credit elsewhere test consolidated and placed  Major change of policy   
                                         in Sec.  120.101; evidence of need and use     emphasis. See Note 6,   
                                         of personal resources by principals placed     subparts A and B.       
                                         in Sec.  120.102.                                                      
Sec.  108.8(b)........................  Consolidated into Sec.  120.150 and Sec.       No policy change.        
                                         120.160.                                                               
Sec.  108.8(c)........................  Sound business purpose is addressed in Sec.    No policy change.        
                                         120.120 and Sec.  120.150. Size requirements                           
                                         is addressed in Sec.  120.100(c) and Sec.                              
                                         120.880(b).                                                            

[[Page 64367]]
                                                                                                                
Sec.  108.8(d)........................  Replaced by Sec.  120.111....................  Major policy change. See 
                                                                                        Note 2, subparts A and  
                                                                                        B.                      
Sec.  108.8(e)........................  Condensed and placed in Sec.  120.870........  No policy change.        
Sec.  108.8(f)........................  Included in Sec.  120.881. Financial and       Clarifies policy.        
                                         investment businesses addressed in Sec.        Ineligibility of project
                                         120.110.                                       because relocation will 
                                                                                        cause unemployment may  
                                                                                        be rebutted if the      
                                                                                        relocation is crucial to
                                                                                        the continued existence,
                                                                                        economic wellbeing or   
                                                                                        competitiveness of the  
                                                                                        applicant, and the      
                                                                                        benefit to new community
                                                                                        outweighs injury to old.
Sec.  108.8(g)........................  This subject is consolidated into Sec.         No policy change.        
                                         120.110 and Sec.  120.130.                                             
Sec.  108.9...........................  Rewritten and placed in Sec.  120.923(c).....  No policy change.        
Sec.  108.10..........................  Eliminated. Not necessary to include in        No policy change.        
                                         regulation.                                                            
Sec.  108.501.........................  Eliminated...................................  Deleted because program  
                                                                                        eliminated, but SBA     
                                                                                        still regulates existing
                                                                                        loans under this        
                                                                                        program. See Sec.       
                                                                                        120.180.                
Sec.  108.501-1.......................  Eliminated...................................  Deleted because program  
                                                                                        eliminated, but SBA     
                                                                                        still regulates existing
                                                                                        loans under this        
                                                                                        program. See Sec.       
                                                                                        120.180.                
Sec.  108.502.........................  Eliminated...................................  Deleted because program  
                                                                                        eliminated, but SBA     
                                                                                        still regulates existing
                                                                                        loans under this        
                                                                                        program. See Sec.       
                                                                                        120.180.                
Sec.  108.502-1.......................  Eliminated...................................  Deleted because program  
                                                                                        eliminated, but SBA     
                                                                                        still regulates existing
                                                                                        loans under this        
                                                                                        program. See Sec.       
                                                                                        120.180.                
Sec.  108.503(a)......................  Eliminated...................................  No policy change; covered
                                                                                        in Sec.  120.1.         
Sec.  108.503(b)......................  Rewritten and incorporated into Sec.  120.2,   No policy change.        
                                         Sec.  120.860, Sec.  120.861, and Sec.                                 
                                         120.862.                                                               
Sec.  108.503(c)......................  Rewritten and placed in Sec.  120.829........  Minor policy change.     
                                                                                        $45,000 is substituted  
                                                                                        for 25% increase, which 
                                                                                        was $43,750. Specific   
                                                                                        instructions and details
                                                                                        in SOP and program      
                                                                                        guidance.               
Sec.  108.503(d)......................  Condensed and placed in Sec.  120.829(b) and   No policy change;        
                                         (c).                                           specific instructions   
                                                                                        and details in SOP and  
                                                                                        policy guidance.        
Sec.  108.503-1(a)....................  Description of the program incorporated into   No policy change         
                                         Sec.  120.2(c) and Sec.  120.801. Eligible                             
                                         projects are in Sec.  120.120, and                                     
                                         applications for certification are in Sec.                             
                                         120.810.                                                               
Sec.  108.503-1(b)....................  Rewritten and placed in Sec.  120.820 through  No policy change;        
                                         Sec.  120.826, and Sec.  120.855(a).           incidental benefit to   
                                                                                        CDC Associate clarified 
                                                                                        to allow relationship in
                                                                                        the regular course of   
                                                                                        business.               
Sec.  108.503-1(c)....................  Rewritten and placed in Sec.  120.821. See     Important policy changes--
                                         definition of Area of Operations in Sec.       see comments below.     
                                         120.802. Extending a CDC's Area of                                     
                                         Operations is in Sec.  120.835 and Sec.                                
                                         120.836. Expiration of existing, temporary                             
                                         Expansions is in Sec.  120.837. Case-by-case                           
                                         extensions are in Sec.  120.838.                                       
Sec.  108.503-1(d)....................  Consolidated into Sec.  120.822. Member or     Policy change. See Note  
                                         Board representation in another CDC is in      under current Sec.      
                                         Sec.  120.855(b).                              108.4(d) above. Specific
                                                                                        details and instructions
                                                                                        will be in SOP          
Sec.  108.503-1(e)....................  Rewritten and placed in Sec.  120.826 and      No policy change;        
                                         Sec.  120.827. SBIC limitation addressed in    Specifics addressed in  
                                         Sec.  120.820.                                 SOP.                    
Sec.  108.503-1(f)....................  Incorporated in Sec.  120.827................  No policy change         
Sec.  108.503-1(g)....................  Rewritten and placed in Sec.  120.855(b).....  Policy change. See Note  
                                                                                        under current Sec.      
                                                                                        108.4(d) above.         
Sec.  108.503-2(a)....................  Rewritten and placed in Sec.  120.810........  Small substantive change.
                                                                                        Regional offices removed
                                                                                        from process because of 
                                                                                        SBA reorganization. More
                                                                                        information in SOP.     
Sec.  108.503-2(b)....................  Rewritten and placed in Sec.  120.811........  Minor procedural changes.
                                                                                        10 day period to submit 
                                                                                        notice to SBA           
                                                                                        eliminated; officer and 
                                                                                        director addresses no   
                                                                                        longer required in      
                                                                                        notice.                 
Sec.  108.503-2(c)....................  Rewritten and placed in Sec.  120.981........  No policy changes.       
Sec.  108.503-2(d)....................  Rewritten and placed in Sec.  120.812........  No policy change.        
Sec.  108.503-2(e)....................  Rewritten and placed in Sec.  120.980........  No policy change.        

[[Page 64368]]
                                                                                                                
Sec.  108.503-3(a)....................  Rewritten and placed in Sec.  120.827........  No policy change.        
Sec.  108.503-3(b)....................  Covered by Sec.  120.827(a)..................  No policy change. Will be
                                                                                        expounded upon in SOP.  
Sec.  108.503-3(c)....................  Rewritten and placed in Sec.  120.828........  Policy change. The number
                                                                                        of loan approvals       
                                                                                        required to satisfy the 
                                                                                        minimum level of        
                                                                                        activity will now be    
                                                                                        specified in annual     
                                                                                        program announcement.   
                                                                                        See major policy change 
                                                                                        note (a) below.         
Sec.  108.503-3(d)....................  Covered by Sec.  120.826.....................  No policy change.        
                                                                                        Specifics in SOP.       
Sec.  108.503-3(e)....................  Eliminated...................................  Deleted reserved section.
Sec.  108.503-3(f)....................  Rewritten and placed in Sec.  120.830(a) and   No policy change. SBA    
                                         (b).                                           streamlining paperwork  
                                                                                        requirements under      
                                                                                        Presidential directive. 
                                                                                        Specifics in SOP.       
Sec.  108.503-3(g)....................  Rewritten and placed in Sec.  120.140(c).....  No policy change.        
Sec.  108.503-3(h)....................  Rewritten and placed in Sec.  120.983........  No policy change.        
Sec.  108.503-4(a)....................  Rewritten and placed in Sec.  120.120, Sec.    No policy changes.       
                                         120.110, Sec.  120.150 and Sec.  120.193.                              
                                         See Sec.  120.871 and Sec.  120.872 for                                
                                         portions of new construction or existing                               
                                         building that may be leased.                                           
Sec.  108.503-4(b)....................  Rewritten and placed in Sec.  120.130 and      Policy change. Airplanes 
                                         Sec.  120.881.                                 in Alaska and Hawaii no 
                                                                                        longer eligible.        
                                                                                        Reference to assets     
                                                                                        limited in potential use
                                                                                        or marketability        
                                                                                        deleted. This is part of
                                                                                        the credit decision. The
                                                                                        rule clarifies the      
                                                                                        eligibility status of   
                                                                                        heavy construction      
                                                                                        equipment. See comment  
                                                                                        (d) below.              
Sec.  108.503-4(c)....................  Rewritten and placed in Sec.  120.882(a)(2)    Policy change. Any       
                                         and Sec.  120.884(a) and (c). Statutory        expenditure made toward 
                                         ceiling discussed in Sec.  120.931; SBIC       a project in            
                                         participation in Sec.  120.103 and Sec.        anticipation of SBA     
                                         120.913; and administrative ceiling in Sec.    assistance within 6     
                                         120.932..                                      months of receipt by SBA
                                                                                        of an application is    
                                                                                        eligible. No notice is  
                                                                                        required. See comment   
                                                                                        (b) below.              
Sec.  108.503-5(a)....................  Rewritten and placed in Sec.  120.120 and      No policy change.        
                                         Sec.  120.882.                                                         
Sec.  108.503-5(b)....................  Rewritten and placed in Sec.  120.883........  No policy change.        
Sec.  108.503-5(c)....................  Rewritten and placed in Sec.  120.130 and      No policy change.        
                                         Sec.  120.884.                                                         
Sec.  108.503-5(d)....................  Discussed in Sec.  120.882(a)(2). Land         See comment under current
                                         contributions in Sec.  120.911.                Sec.  108.503-4(c) above
                                                                                        and policy comment      
                                                                                        discussion (b) below.   
                                                                                        Specific instructions   
                                                                                        and explanations will be
                                                                                        in SOP.                 
Sec.  108.503-6(a)....................  Rewritten and placed in Sec.  120.883(c),      No policy change. Omits  
                                         Sec.  120.961(a), and Sec.  120.971(a)(1).     reference to $2,500 in  
                                                                                        discussion of legal     
                                                                                        fees. See note (c).     
                                                                                        Specifics in SOP.       
Sec.  108.503-6(b)....................  Rewritten and placed in Sec.  120.936........  No policy change.        
Sec.  108.503-6(c)....................  Rewritten and placed in Sec.  120.961(b).....  No policy change.        
Sec.  108.503-6(d)....................  Rewritten and placed in Sec.  120.971(a)(3)..  No policy change.        
Sec.  108.503-6(e)....................  Eliminated...................................  Policy change. See Note  
                                                                                        8, subparts A and B.    
Sec.  108.503-7(a)....................  Rewritten. Certification of project            No policy change.        
                                         completion placed in Sec.  120.891.            Specifics in SOP.       
                                         Certifications of no adverse change are in                             
                                         Sec.  120.892..                                                        
Sec.  108.503-7(b)....................  Rewritten and placed in Sec.  120.890........  No policy change.        
Sec.  108.503-7(c)....................  Rewritten and placed in Sec.  120.962........  No policy change.        
Sec.  108.503-8(a)....................  Rewritten and placed in Sec.  120.900........  No policy change, but (3)
                                                                                        is now called ``Borrower
                                                                                        contribution'' instead  
                                                                                        of ``the 503 Company    
                                                                                        injection''.            
Sec.  108.503-8(b)....................  Rewritten and placed in Sec.  120.920 through  No policy change, but    
                                         Sec.  120.925. Newly published (1/20/95)       Sec.  120.923(b)        
                                         ``other real estate owned'' provision placed   clarifies that some     
                                         in Sec.  120.923(a).                           payments made by        
                                                                                        lienholder are allowed  
                                                                                        to maintain and protect 
                                                                                        the lien position.      
Sec.  108.503-9.......................  Loan conditions are detailed in Sec.  120.930  No policy change.        
                                         through Sec.  120.941. Description of                                  
                                         program is in Sec.  120.3 and Sec.  120.801.                           
Sec.  108.503-10......................  Rewritten and placed in Sec.  120.910 through  No policy change. Some   
                                         Sec.  120.913.                                 specifics left for SOP. 
Sec.  108.503-11......................  Eliminated. Consolidated with current Sec.     No policy change.        
                                         108.504(e) into Sec.  120.954.                                         
Sec.  108.503-12......................  Rewritten and placed in Sec.  120.960........  No policy change.        
                                                                                        Specifics in SOP.       
Sec.  108.503-13(a) and (b)...........  Rewritten and placed in Sec.  120.970.         No policy change.        
                                         Quarterly reports discussed in Sec.            Specifics moved to SOP. 
                                         120.830(f).                                                            
Sec.  108.503-13(c)...................  Placed in 120.970. Incorporates Sec.  120.513  No policy changes.       
                                                                                        Specifics in SOP.       
Sec.  108.503-13(d)...................  Rewritten and placed in Sec.  120.971(a)(1)..  No policy change.        
Sec.  108.503-13(e)...................  Rewritten and placed in Sec.  120.982........  No policy change.        
Sec.  108.503-13(f)...................  Rewritten and placed in Sec.  120.983........  No policy change.        

[[Page 64369]]
                                                                                                                
Sec.  108.503-13(g)...................  Rewritten and placed in Sec.  120.938........  No policy change.        
Sec.  108.503-13(h)...................  Consolidated into Sec.  120.530..............  No policy change.        
                                                                                        Specific information and
                                                                                        explanatory material    
                                                                                        will be in SOP.         
Sec.  108.503-14......................  Rewritten and placed in Sec.  120.970........  No policy change.        
                                                                                        Specific information and
                                                                                        explanatory material    
                                                                                        will be in SOP.         
Sec.  108.503-15(a) and (b)...........  Rewritten and placed in Sec.  120.972........  No policy change--       
                                                                                        specifics in SOP.       
Sec.  108.503-15(c) and (d)...........  Eliminated...................................  Deleted all reserve      
                                                                                        sections.               
Sec.  108.503-15(e)...................  Rewritten and placed in Sec.  120.984........  No policy change.        
Sec.  108.504 (a), (b) and (c)........  Consolidated into Sec.  120.801..............  No policy change.        
Sec.  108.504(d)......................  Placed in Sec.  120.934......................  No policy change.        
Sec.  108.504(e)......................  Rewritten and placed in Sec.  120.954........  No policy change.        
Sec.  108.504(f)......................  Rewritten and placed in Sec.  120.941........  No policy change.        
Sec.  108.504(g)......................  Eliminated. More suitable for inclusion in     No policy change.        
                                         SOP.                                                                   
Sec.  108.504(h)......................  Rewritten and placed in Sec.  120.941........  .........................
Sec.  108.504(i)......................  Consolidated into Sec.  120.962..............  No policy change.        
Sec.  108.504(j)......................  Rewritten and placed in Sec.  120.939........  No policy change.        
Sec.  108.504(k)......................  Placed into Sec.  120.941....................  No policy change.        
Sec.  108.504(l)......................  Eliminated...................................  No policy change.        
                                                                                        Debentures are sold     
                                                                                        through Pools.          
Sec.  108.504-1.......................  Condensed and placed in Sec.  120.194........  Computer generated forms 
                                                                                        now may be used for all 
                                                                                        business loans, not just
                                                                                        504 loans.              
Sec.  108.505(a)......................  Consolidated into Sec.  120.1................  No policy change.        
Sec.  108.505(b)......................  Consolidated into Sec.  120.2 and Sec.         No policy change.        
                                         129.801.                                                               
Sec.  108.505(c)......................  SBA guarantee discussed in Sec.  120.801;      No policy change.        
                                         timely payment on Certificate is in Sec.                               
                                         120.942; effect of other laws is in Sec.                               
                                         120.991.                                                               
Sec.  108.505(d)......................  Condensed and placed in 120.941..............  No policy change.        
Sec.  108.505(e)......................  Condensed and placed in Sec.  120.942........  No policy change.        
Sec.  108.505(f)......................  Placed in Sec.  120.950, Sec.  120.951         No policy change, but    
                                         (selling agent), Sec.  120.952 (fiscal         reference to ``Transfer 
                                         agent), Sec.  120.953 (trustee), and Sec.      Agent'' has been        
                                         120.954 (central servicing agent). Bond/       deleted. ``Trustee'' has
                                         Insurance requirement moved to Sec.            been used since 1986.   
                                         120.956(a).                                                            
Sec.  108.505(g)......................  Eliminated. Regulations not necessary........  No policy change, but    
                                                                                        ``Pooler'' is now       
                                                                                        referred to as          
                                                                                        ``Underwriter'' and     
                                                                                        specific conditions and 
                                                                                        duties will be in SOP.  
Sec.  108.505(h)......................  Consolidated and placed in Sec.  120.955.....  No policy change.        
Sec.  108.505(i)......................  Consolidated and placed in Sec.  120.971(c)..  No policy change.        
Sec.  108.505(j)......................  Included in Sec.  120.942(b).................  No policy change.        
Sec.  108.505(k)......................  Condensed into Sec.  120.940.................  No policy change.        
Sec.  108.505(l)......................  Condensed into Sec.  120.956.................  No policy change.        
Sec.  108.506.........................  Condensed and consolidated into Sec.           No policy change.        
                                         120.140(i).                                                            
Sec.  108.507.........................  Rewritten and placed in Sec.  120.850........  No policy change.        
Sec.  108.507-1.......................  Merged into Sec.  120.850....................  No policy change.        
Sec.  108.507-2.......................  Consolidated into Sec.  120.851..............  Minor policy change. ADCs
                                                                                        may be for-profit, as   
                                                                                        well as non-profit      
                                                                                        status. SBA's purpose is
                                                                                        to encourage more       
                                                                                        organizations to aid    
                                                                                        small businesses.       
Sec.  108.507-3.......................  Condensed into Sec.  120.851.................  No policy change.        
                                                                                        Specifics will be in    
                                                                                        SOP.                    
Sec.  108.507-4.......................  Consolidated into Sec.  120.850(a)...........  No policy change.        
Sec.  108.507-5.......................  Reviews and audits consolidated into Sec.      No policy change.        
                                         120.972. Suspension and revocation discussed                           
                                         in Sec.  120.852.                                                      
Sec.  108.508-1.......................  This new program, published 4/26/95, was       No policy change.        
                                         condensed and placed at Sec.  120.840.                                 
Sec.  108.509.........................  This new program, published 4/26/95, was       No policy change.        
                                         condensed and placed at Sec.  120.845.                                 
New...................................  120.831......................................  Minor policy change. CDCs
                                                                                        would disclose to SBA & 
                                                                                        Borrower any            
                                                                                        compensation or         
                                                                                        remuneration received   
                                                                                        from a Lender or other  
                                                                                        party involved in a 504 
                                                                                        loan to monitor any     
                                                                                        inducements.            
----------------------------------------------------------------------------------------------------------------

Part II--Major Policy Changes
    (a) Area of Operations. During the policy review accompanying the 
regulatory rewriting, SBA focused much of its attention on the question 
of what constitutes adequate service in an Area of Operation. 
Throughout the history of the 504 program there has been a great 
divergence among CDCs in the number of loan approvals each year. While 
some CDCs have exhibited continued growth measured by their loan 
approvals and 

[[Page 64370]]
ability to package, process and service loans, other CDCs have lagged 
behind. There are many complicated reasons for this, but the net result 
has been a patchwork of 504 service (measured by loan approvals) across 
the country, with many small businesses in some areas receiving 504 
assistance while in other areas few, if any, small businesses have 
received such assistance.
    SBA attempted to address this issue by permitting CDCs to expand 
temporarily into adjacent areas, and then, in l993, by designating a 
minimum number of loan approvals per year which a CDC must average over 
the previous two fiscal year periods to retain certification as a CDC. 
The current number of required loan approvals is two. SBA also 
established the status of an Associate Development Company (``ADC''). 
Those CDCs unable or unwilling to meet the minimum number of loan 
approvals may become ADCs, thereby continuing to participate in the 
program goals of economic and community development without having to 
make loans. A number of CDCs have been decertified as a result of this 
policy and have opted for ADC status.
    However, a focus on removal from CDC status does not address the 
real question of adequacy of service within an Area of Operations. What 
constitutes adequate service within a community? The statutory 
objectives of the 504 program are to provide a portion of long term 
fixed-asset financing for small business projects that provide jobs and 
result in economic development. Clearly, these goals cannot be met in 
an Area of Operations unless loans are being packaged, processed, 
approved, closed and serviced by one or more CDCs. Unfortunately, SBA 
is aware of too many locations across the country in which present CDCs 
are unable or unwilling to meet the small business demand for 504 
loans. Transferring an existing CDC to ADC status does not address this 
inadequacy. SBA has concluded that the answer lies not in 
decertification, but in competition and customer service.
    Therefore, in Sec. 120.835, SBA is proposing that existing CDCs be 
permitted to expand into Areas of Operations that are not being 
adequately serviced. The expanding CDC would have to show that the 
proposed Area of Operations is not being adequately served by the 
existing CDCs and that the expanding CDC is well-qualified to serve it. 
SBA is not proposing any geographic or size limitation on CDCs applying 
to service a location, but such factors will be considered in 
evaluating the application. A CDC must apply in writing to the SBA 
district office serving the geographic area in which the CDC proposes 
to expand.
    In this context, SBA has concluded that there is no minimum loan 
approval number appropriate to every CDC in every location across the 
country. A small CDC with a rural Area of Operations and slow economic 
activity may be providing adequate service at a low level of approvals 
while a larger CDC in a metropolitan region with much economic activity 
may be providing inadequate service, despite having a greater number of 
loan approvals.
    SBA has also concluded that adequate service includes adequate 
servicing of loans, as well as the number of loan approvals. Thus, any 
CDC seeking to expand will have to show that it has a history of 
adequate experience and expertise in both loan packaging and servicing, 
and that the existing CDCs in the proposed area of expansion have not 
been adequately packaging or servicing loans. Even if the number of 
loan approvals does not accurately represent the competence of a CDC, 
it does accurately reflect the adequacy of the market penetration of 
504 financing in the proposed area of expansion.
    In general, SBA will consider an Area of Operations inadequately 
served if the existing CDCs in the Area of Operations have not 
averaged, over the last two fiscal years, sufficient loan approvals for 
the population, as published by SBA in an annual program announcement. 
SBA will establish the initial formula in a program announcement upon 
publication of the final rule, but would like the benefit of comments 
on this subject before committing any specific numbers to print. SBA is 
considering a two or three tier formula based on the current national 
averages for CDC loan approvals per number of population. Suggestions 
have been received that the formula should be based not on population, 
but on the number of small businesses in the Area of Operations or some 
other factor. SBA is interested in comments and would like 
recommendations on how, if at all, to incorporate a servicing component 
into its approach.
    SBA is proposing (Sec. 120.837) that all existing, temporary 
expansions of Areas of Operations will expire automatically 6 months 
after the effective date of these regulations, unless a CDC applies for 
permanent expansion into that Area before the expiration date. SBA 
believes that CDCs will best serve the small business community by 
making a permanent commitment to an Area of Operations. Upon showing 
good cause, a CDC will still be able to apply to SBA to make an 
individual loan for a Project outside its Area of Operations in an area 
not being adequately served by other CDCs (Sec. 120.838). Note also 
that the Borrower may write to the AA/FA (but not the District 
Director) to request the servicing of a CDC not currently serving the 
area. SBA has added this provision to give Borrowers more flexibility 
if they have a concern about the services of a particular CDC.
    (b) Expenditures in Anticipation of Project. In the current 
regulations, costs incurred by a Borrower in anticipation of receiving 
a 504 loan are not eligible to be included in Project costs unless the 
applicant has filed a written notice with the CDC and SBA within 60 
days of incurring the expense and SBA gives written approval. As a 
result, CDCs and SBA receive notices from many potential borrowers 
considering 504 financing who desire to maximize potential financing. 
Many of these businesses never actually apply or their applications are 
denied. In those cases, the written notices are a useless paperwork 
burden on SBA, the CDC and the applicant.
    Therefore, SBA is proposing (Sec. 120.882(a)(2)) to eliminate the 
requirement for written notice. Any expense incurred toward a Project 
within six months of receipt by SBA of a complete loan application will 
be an eligible Project cost.
    (c) Legal Fees. The Borrower's closing costs, including legal fees, 
are eligible for inclusion in the 504 loan. Typically, legal services 
are provided by the CDC's counsel, who is usually experienced in 
closing 504 loans and thus, is able to do so cost effectively. 
Sometimes, a Borrower will also retain an attorney. Under the current 
regulations, the CDC may charge the Borrower up to $2,500 for the legal 
services performed by the CDC counsel, unless SBA approves a higher fee 
in a complex case. If the fee is more than $2,500, the CDC must pay the 
difference. The CDC collects the fee at closing and forwards it to the 
closing attorney.
    The $2,500 figure in the regulation has engendered much debate 
within the industry. Many CDCs feel the figure establishes a minimum 
base for attorney services and is, therefore, anti-competitive. On the 
other hand, during the past five months, SBA has conducted several 
expedited closing training sessions for CDC counsel. Many attorneys 
feel that the figure establishes a ceiling for attorney services and 
is, therefore, anti-competitive. There appears to be a wide range of 
prices charged by CDC counsel for closing services. Most CDCs try to 
minimize 

[[Page 64371]]
counsel fees to reduce costs to the Borrower.
    SBA has determined that there is no reason for SBA to refer to any 
legal fee amount. Whether it is viewed as a ceiling or a base, the 
$2,500 reference has apparently caused misunderstanding and may have 
had an effect on legal fees charged. SBA believes legal fees should be 
determined by the competitive market. Therefore, proposed 
Secs. 120.883(d) and 120.961(a), omit any reference to amount.
    (d) Eligible Use of Proceeds. In the current regulations, airplanes 
are not eligible for 504 loans, except that Alaskan and Hawaiian 
Projects may include airplanes not exceeding 20 percent of the Project 
cost, if they are indispensable to the Project. SBA proposes to 
eliminate this exception (Sec. 120.884(d)(2)), previously justified 
because of the great distances people must travel in those states. But 
distances are great in many mainland states, as well, and airplanes 
simply are not directly attributable and necessary for a Project.
    Also, in the current regulations there is no direct reference to 
the eligibility of construction equipment as a distinct sub-category of 
equipment and machinery. CDCs and SBA often receive questions from 
potential Borrowers as to whether construction equipment is eligible 
for 504 financing. The proposed rule in Sec. 120.884(d)(3) clarifies 
that construction equipment is ineligible for 504 financing unless it 
is heavy duty equipment integral to the operation of a business and 
meeting the IRS definition of capital equipment. Note also that 
Sec. 120.884(d)(1) clarifies SBA policy that short term equipment is a 
permitted use of loan proceeds if the equipment is essential to the 
Project and reflects a minor percentage of the loan. This is not a 
change in policy.
    (e) Definitions. SBA has created several new definitions to help 
make the regulation easier to understand. Comments and suggestions will 
be appreciated.
    Several definitions clarify terms long associated with the 504 
program which were included in the regulations, but were not defined. 
These include ``Area of Operations,'' ``Certificate,'' ``Debenture,'' 
``Job Opportunity,'' and ``Substantial Increase in Unemployment.''
    Finally, some key words have been replaced with more useful and apt 
words. A ``Small Business Concern'' is now a ``Small Business.'' The 
term ``Underwriter'' has replaced ``Pooler.'' The term ``Project'' has 
replaced ``Plant.'' ``Project Property'' is a new definition previously 
undefined in the regulation.
    (f) Minor Policy Changes. In proposed Sec. 120.828, the minimum 
level of CDC lending activity is no longer set at a specific number; 
SBA will retain the ability to change this number through its program 
announcements based on program performance and the economy. In proposed 
Sec. 120.939(b), CDCs will be liable for SBA losses incurred by 
``wrongful CDC conduct'' as well as in cases of fraud and negligence.

Compliance With Executive Orders 12612, 12778, and 12866, the 
Regulatory Flexibility Act (5 U.S.C. 601, et seq.), and the Paperwork 
Reduction Act (44 U.S.C. Ch. 35)

    SBA certifies that this proposed rule involves internal 
administrative procedures and would not be considered a significant 
rule within the meaning of Executive Order 12866 and would not have a 
significant economic impact on a substantial number of small entities 
within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et 
seq. It is not likely to have an annual economic effect of $100 million 
or more, result in a major increase in costs or prices, or have a 
significant adverse effect on competition or the United States economy.
    For purposes of the Paperwork Reduction Act, 44 U.S.C. Ch. 35, SBA 
certifies that this proposed rule, if adopted in final form, would 
contain no new reporting or record keeping requirements.
    For purposes of Executive Order 12612, SBA certifies that this rule 
would not have any federalism implications warranting the preparation 
of a Federalism Assessment.
    For purposes of Executive Order 12778, SBA certifies that this rule 
is drafted, to the extent practicable, in accordance with the standards 
set forth in Section 2 of that Order.

List of Subjects

13 CFR Part 108

    Equal employment opportunity, Loan programs-business, Reporting and 
recordkeeping requirements, Small businesses.

13 CFR Part 116

    Coastal Zone, Flood insurance, Flood plains, Lead poisoning, Small 
businesses, Veterans.

13 CFR Part 120

    Loan programs-business, Reporting and recordkeeping requirements, 
Small businesses.

13 CFR Part 122

    Community development, Employee benefit plans, Energy conservation, 
Environmental protection, Exports, Individuals with disabilities, Loan 
programs-business, Loan programs-energy, Loan programs-veterans, 
Microloans, Reporting and recordkeeping requirements, Small businesses, 
Solar energy, Trusts and trustees, Veterans.

13 CFR Part 131

    Loan programs-business, Small businesses.

    Accordingly, pursuant to the authority set forth in sections 5 
(b)(1) and (b)(6) of the Small Business Act, 15 U.S.C. 634(b)(6) and 
636 (a) and (h), SBA hereby proposes to amend Chapter I of Title 13, 
Code of Federal Regulations (CFR), as follows:

    
FR Doc. 95-30327 Business Loan Programs
1. Part 120 would be revised to read as follows:

PART 120--BUSINESS LOANS

General Descriptions of SBA's Business Loan Programs

Sec.
120.1  Which loan programs does this part cover?
120.2  Descriptions of the business loan programs.
120.3  Pilot programs.

Definitions

120.10  Definitions.

Subpart A--Policies Applying to All Business Loans

Eligibility Requirements

120.100  What are the basic requirements for all Borrowers?
120.101  Credit not available elsewhere.
120.102  Funds not available from alternative sources, including 
personal resources of principals.
120.103  Are farm enterprises eligible?
120.104  Are businesses financed by SBICs eligible?
120.105  Special consideration for veterans.

Ineligible Businesses and Eligible Passive Companies

120.110  What businesses are ineligible for SBA business loans?
120.111  What conditions must an Eligible Passive Company satisfy?

Uses of Proceeds

120.120  What are eligible uses of proceeds?
120.130  Restrictions on uses of proceeds.

Ethical Requirements

120.140  What ethical requirements apply to participants?

Credit Criteria for SBA Loans

120.150  What are SBA's lending criteria?
120.151  What is the statutory limit for total loans to a Borrower?
120.160  Loan conditions. 

[[Page 64372]]

120.161  Lending limits.

Requirements Imposed Under Other Laws and Orders

120.170  Flood insurance.
120.171  Compliance with child support obligations.
120.172  Flood-plain and wetlands management.
120.173  Lead-based paint.
120.174  Earthquake hazards.
120.175  Coastal barrier islands.
120.176  Compliance with other laws.

Enforceability Despite Rule Changes

120.180  Are rules enforceable if they are changed later?

Loan Applications

120.190  Where does an applicant apply for a loan?
120.191  The contents of a business loan application.
120.192  Approval or denial.
120.193  Reconsideration after denial.

Computerized SBA Forms

120.194  Use of computer forms.
120.195  Duty of Lender, CDC, Intermediary Lender, and Borrower to 
report fees.

Subpart B--Policies Specific to 7(a) Loans

Bonding Requirements

120.200  What bonding requirements exist during construction?

Limitations on Use of Proceeds

120.201  Refinancing unsecured or undersecured loans.
120.202  Restrictions on loans for changes in ownership.
120.203  Revolving credit.

Maturities; Interest Rates; Loan and Guarantee Amounts

122.210  What percentage of a loan may SBA guarantee?
120.211  What limits are there on the amounts of direct loans?
120.212  What limits are there on loan maturities?
120.213  What fixed interest rates may a Lender charge?
120.214  What conditions apply for variable interest rates?

Fees for Guaranteed Loans

120.220  Guarantee fees that Lender pays SBA.
120.221  Fees which the Lender may collect from a loan applicant.
120.222  Fees which the Lender or Associate may not collect from the 
Borrower or share with third parties.

Subpart C--Special Purpose Loans

120.300  Statutory Authority.

Disabled Assistance Loan Program (DAL)

120.310   What assistance is available for the disabled?
120.311  Definitions.
120.312  DAL-1 use of proceeds and other program conditions.
120.313  DAL-2 use of proceeds and other program conditions.
120.314  Resolving doubts about creditworthiness.
120.315  Interest rate and loan limit.

Businesses Owned by Low Income Individuals

120.320  Policy.

Energy Conservation

120.330  Who is eligible for an energy conservation loan?
120.331  What devices or techniques are eligible for a loan?
120.332  What are the eligible uses of proceeds?
120.333  Are there any special credit criteria?

Export Working Capital Program (EWCP)

120.340  What is the Export Working Capital Program?
120.341  Who is eligible?
120.342  What are eligible uses of proceeds?
120.343  Collateral.
120.344  Cash flow projections.

International Trade Loans

120.345  Policy.
120.346  Eligibility.
120.347  Use of proceeds.
120.348  Amount and percentage of guarantee.

Qualified Employee Trusts (ESOP)

120.350  Policy.
120.351  Definitions.
120.352  Use of proceeds.
120.353  Eligibility.
120.354  Creditworthiness.

Veterans Loan Program

120.360  Which veterans are eligible?
120.361  Other conditions of eligibility.

Pollution Control Program

120.370  Policy.

Loans to Participants in the 8(a) Program

120.375  Policy.
120.376  Special requirements.
120.377  Use of proceeds.

Defense Economic Transition Assistance

120.380  Program.
120.381  Eligibility.
120.382  Repayment ability.
120.383  Restrictions on loan processing.

Caplines Program

120.390  Revolving credit.

Small General Contractors

120.391  What is the Small General Contractor Program?
120.392  Who may apply?
120.393  Are there special application requirements?
120.394  What are the eligible uses of proceeds?
120.395  What is SBA's collateral position?
120.396  What is the term of the loan?
120.397  Are there any special restrictions?

Subpart D--Lenders

120.400  Participation agreements.

Participation Criteria

120.410  Requirements for all participating Lenders.
120.411  Preferences.
120.412  Other services Lenders may provide Borrowers.
120.413  Advertisement of relationship with SBA.

Pledging Notes or Transferring Unguaranteed Portion

120.420  Financings by Nondepository Lenders.

Miscellaneous Provisions

120.430  SBA access to Lender files.
120.431  Suspension or revocation of eligibility to participate.

Certified Lenders Program (CLP)

120.440  What is the Certified Lenders Program?
120.441  How does a Lender become a CLP Lender?
120.442  Suspension or revocation of CLP status.

Preferred Lenders Program (PLP)

120.450  What is the Preferred Lenders Program?
120.451  How does a Lender become a PLP Lender?
120.452  What are the requirements of PLP loan processing?
120.453  What are the requirements of PLP loan servicing and 
liquidation?
120.454  PLP performance review.
120.455  Suspension or revocation of PLP status.

Small Business Lending Companies (SBLC)

120.470  What is an SBLC?
120.471  Records.
120.472  Reports to SBA.
120.473  Change of ownership or control.
120.474  Prohibited financing.
120.475  Suspension or revocation.

Subpart E--Loan Administration

120.500  General.

Servicing

120.510  Servicing direct and immediate participation loans.
120.511  Servicing guaranteed loans.
120.512  Who services the loan after SBA honors its guarantee?
120.513  What servicing actions require the prior written consent of 
the SBA?

SBA'S Purchase of a Guaranteed Portion

120.520  When does SBA honor its guarantee?
120.521  What interest rate applies after SBA purchases its 
guaranteed portion?
120.522  How much accrued interest does SBA pay to the Lender or 
Registered Holder when SBA purchases the guaranteed portion?
120.523  What is the ``earliest uncured default''?
120.524  When is SBA released from liability on its guarantee? 

[[Page 64373]]

Deferment, Extension of Maturity and Loan Moratorium

120.530  Deferment of payment.
120.531  Extension of maturity.
120.532  What is a loan Moratorium?
120.533  When will SBA grant a Moratorium?
120.534  How long can a Moratorium continue?
120.535  What are the repayment terms of a Moratorium?

Liquidation of Collateral

120.540  What are SBA's policies concerning liquidation of 
collateral?

Homestead Protection for Farmers

120.550  What is homestead protection for farmers?
120.551  Who is eligible for homestead protection?
120.552  Lease.
120.553  Appeal.

Subpart F--Secondary Market

120.600  What is the SBA Secondary Market?
120.601  Definitions.

Certificates

120.610  Description of Certificates.
120.611  Description of Pools backing Pool Certificates.
120.612  What loans are eligible to back Certificates?
120.613  What is a Secondary Participation Guarantee Agreement?

The SBA Guarantee of a Certificate

120.620  The SBA guarantee of a Pool Certificate.
120.621  The SBA guarantee of a Certificate representing a 
individual guaranteed portion.

Pool Assemblers

120.630  Qualifications to be a Pool Assembler.
120.631  Suspension or termination of eligibility of Pool Assembler.

Sale of Certificates

120.640  Administration of the Pool and individual guaranteed 
portions.
120.641  Disclosure to purchasers.
120.642  Requirements before the FTA issues Pool Certificates.
120.643  Requirements before the FTA issues the Certificate for an 
individual guaranteed portion.
120.644  Sale of individual SBA guaranteed portion.
120.645  Transfers of Certificates.

Fiscal and Transfer Agent (FTA)

120.650  Registration duties of FTA in Secondary Market.
120.651  Claim to FTA by Registered Holder to replace Certificate.
120.652  FTA fees.

Suspension or Revocation of Participant in Secondary Market

120.660  Suspension or revocation.

Subpart G--Microloan Demonstration Program

120.700  What is the Microloan Program?
120.701  Definitions.
120.702  Are there limits on Intermediaries or loans?
120.703  How do I apply to become an Intermediary?
120.704  What is my financial contribution?
120.705  Microloan Revolving Fund.
120.706  Loan Loss Reserve Fund.
120.707  What are the terms and conditions of my Intermediary SBA 
loan?
120.708  What conditions apply to my loans to Microloan Borrowers?
120.709  What records and reports does SBA require?
120.710  How does an Intermediary get a grant to assist Microloan 
Borrowers?
120.711  Does SBA provide technical assistance to Intermediaries?
120.712  How does a non-Intermediary get a grant?
120.713  Does SBA guarantee any loans an Intermediary obtains from 
another source?

Subpart H--Development Company Loan Program (504)

120.800  What is the purpose of the 504 program?
120.801  How is a 504 Project financed?
120.802  Definitions.

Certification Procedures to Become a CDC

120.810  Applications for certification as a CDC.
120.811  Public notice of CDC certification application.
120.812  Probationary period for newly certified CDCs.

Requirements for CDC Certification and Operation

120.820  CDC non-profit status.
120.821  CDC Area of Operations.
120.822  CDC membership.
120.823  CDC board of directors.
120.824  Professional management and staff.
120.825  Financial ability to operate.
120.826  Basic requirements for operating a CDC.
120.827  Services a CDC provides to small businesses.
120.828  The minimum level of CDC lending activity.
120.829  The Job Opportunity average a CDC must maintain.
120.830  Reports a CDC must submit.
120.831  Disclosure of referral fees or other payments by or to a 
CDC

Extending a CDC's Area of Operations

120.835  Application to extend an Area of Operations.
120.836  Public notice of application for extension.
120.837  Expiration of existing, temporary expansions.
120.838  Case-by-case extensions.

Accredited Lenders Program

120.840  Accredited Lenders Program.

Premier Certified Lenders Program

120.845  Premier Certified Lenders Program.

Associate Development Companies (ADCs)

120.850  ADC functions.
120.851  ADC eligibility and operating requirements.
120.852  Suspension and revocation of ADCs.

Ethical Requirements

120.855  CDC and ADC ethical requirements.

Project Economic Development Goals

120.860  Required objectives.
120.861  Job creation or retention.
120.862  Other economic development objectives.

Leasing Policies Specific to 504 Loans

120.870  Leasing Project Property.
120.871  Leasing part of a new construction Project to another 
business.
120.872  Leasing part of an existing building to another business.

Loan-Making Policies Specific to 504 Loans

120.880  Basic eligibility requirements.
120.881  Ineligible Projects for 504 loans.
120.882  Eligible Project costs for 504 loans.
120.883  Eligible administrative costs for 504 loans.
120.884  Ineligible costs for 504 loans.

Interim Financing

120.890  Source of interim financing.
120.891  Certifications of disbursement and completion.
120.892  Certifications of no adverse change.

Permanent Financing

120.900  What are the sources of permanent financing?

The Borrower's Contribution

120.910  How much must the Borrower contribute?
120.911  Land contributions.
120.912  Borrowed contributions.
120.913  May an SBIC provide the contribution?

Third Party Loans

120.920  The first lien position.
120.921  Terms of Third Party loans.
120.922  Pre-existing debt on the Project Property.
120.923  What are the policies on subordination?
120.924  Prepayment of subordinate financing.
120.925  Preferences.

504 Loans and Debentures

120.930  Amount.
120.931  504 lending limits.
120.932  Interest rate.
120.933  Maturity.
120.934  Collateral.
120.935  Deposit.
120.936  Subordination to CDC.
120.937  Assumption.
120.938  Default.
120.939  Borrower prohibition.
120.940  Prepayment of the 504 loan or Debenture.
120.941  Certificates. 

[[Page 64374]]

Debenture Sales and Service Agents

120.950  SBA and CDC must appoint agents.
120.951  Selling agent.
120.952  Fiscal agent.
120.953  Trustee.
120.954  Central Servicing Agent.
120.955  Agent bonds and records.
120.956  Suspension or revocation of brokers and dealers.

Closings

120.960  Responsibility for closing.
120.961  CDC closing fees.
120.962  Construction escrow accounts.

Servicing and Post-Closing Fees

120.970  Servicing of 504 loans and Debentures.
120.971  Post-closing fees paid by Borrower.
120.972  Oversight and evaluation of CDCs and ADCs.

CDC Transfer, Suspension and Revocation

120.980  Transfer of CDC to ADC status.
120.981  Voluntary transfer and surrender of CDC certification.
120.982  Correcting CDC servicing deficiencies.
120.983  Transfer of CDC servicing to SBA or another CDC.
120.984  Suspension or revocation of CDC certification.

Enforceability of 501, 502 and 503 Loans and Other Laws

120.990  501, 502 and 503 loans.
120.991  Effect of other laws.
    Authority: 15 U.S.C 634(b)(6) and 636 (a) and (h).

General Descriptions of SBA's Business Loan Programs

Sec. 120.1  Which loan programs does this part cover?

    This Part regulates SBA's financial assistance to small businesses 
under its general business loan programs (``7(a) loans'') authorized by 
section 7(a), 15 U.S.C. 636(a) of the Small Business Act (``the Act''), 
its microloan demonstration loan program (``Microloans'') authorized by 
section 7(m), 15 U.S.C. 636(m) of the Act, and its development company 
program (``504 loans'') authorized by Title V of the Small Business 
Investment Act, 15 U.S.C. 695 to 697f (``Title V''). These three 
programs constitute the business loan programs of the SBA.

Sec. 120.2  Descriptions of the business loan programs.

    (a) 7(a) loans. (1) 7(a) loans provide financing for general 
business purposes and may be:
    (i) A direct loan by SBA;
    (ii) An immediate participation loan by a Lender and SBA; or
    (iii) A guaranteed loan (deferred participation) by which SBA 
guarantees a portion of a loan made by a Lender.
    (2) A guaranteed loan is initiated by a Lender agreeing to make an 
SBA guaranteed loan to a small business and applying to SBA for SBA's 
guarantee under a blanket guarantee agreement (participation agreement) 
between SBA and the Lender. If SBA agrees to guarantee (authorizes) a 
portion of the loan, the Lender funds and services the loan. If the 
small business defaults on the loan, SBA's guarantee requires SBA to 
purchase its portion of the outstanding balance, upon demand by the 
Lender and subject to specific conditions. Regulations specific to 7(a) 
loans are found in subpart B of this part.
    (b) Microloans. SBA makes loans and loan guarantees to non-profit 
Intermediaries that make short-term loans up to $25,000 to eligible 
small businesses for general business purposes, except payment of 
debts. SBA also gives grants to Intermediaries for use in providing 
management assistance and counseling to small businesses. Regulations 
specific to these loans are found in subpart G of this part.
    (c) 504 loans. Projects involving 504 loans require long-term 
fixed-asset financing for small businesses. A Certified Development 
Company (CDC) provides the final portion of this financing with a 504 
loan made from the proceeds of a Debenture issued by the CDC, 
guaranteed 100 percent by SBA (with the full faith and credit of the 
United States), and sold to investors. The regulations specific to 
these loans are found in subpart H of this part.

Sec. 120.3  Pilot programs.

    The Administrator of SBA may from time to time suspend, modify, or 
waive rules for a limited period of time to test new programs or ideas. 
The Administrator shall publish a document in the Federal Register 
explaining the reasons for these actions.

Definitions

Sec. 120.10  Definitions.

    The following terms have the same meaning wherever they are used in 
this part. Defined terms are capitalized wherever they appear.
    Associate. (1) An Associate of a Lender or CDC is:
    (i) An officer, director, member, or key employee, or an agent 
involved in the loan-making process;
    (ii) A Close Relative of any individual in paragraph (1)(i) of this 
definition; and
    (iii) Any entity in which one or more individuals referred to in 
paragraphs (1) (i) and (ii) of this definition own or control at least 
10 percent.
    (2) An Associate of a small business is:
    (i) An officer, director, member, owner, principal, key employee, 
or agent authorized to act on behalf of the small business;
    (ii) A Close Relative of any individual in paragraph (2)(i) of this 
definition;
    (iii) Any entity in which one or more individuals referred to in 
paragraphs (2) (i) and (ii) of this definition owns or controls at 
least 10 percent; and
    (iv) Any individual or entity in control of or controlled by the 
small business (except a Small Business Investment Company (``SBIC'') 
licensed by SBA).
    (3) For purposes of this definition, the time during which an 
Associate relationship exists commences six months before the following 
dates and continues as long as the certification, participation 
agreement, or loan is outstanding:
    (i) For a CDC, the date of certification by SBA;
    (ii) For a Lender, the date of application for a loan guarantee on 
behalf of an applicant; or
    (iii) For a small business, the date of the loan application to 
SBA, the CDC, the Intermediary, or the Lender.
    Authorization is SBA's written agreement providing the terms and 
conditions under which SBA will make or guarantee business loans. It is 
not a contract to make a loan.
    Borrower is the obligor of an SBA business loan.
    Certified Development Company  (``CDC'') is an entity authorized by 
SBA to deliver 504 financing to small businesses.
    Close Relative is a spouse; a parent; or a child or sibling, or the 
spouse of any such person.
    Eligible Passive Company is a small entity which does not engage in 
regular and continuous business activity, which leases real or personal 
property to an Operating Company for use in the Operating Company's 
business, and which complies with the conditions set forth in 
Sec. 120.111.
    Intermediary is the entity in the Microloan program that receives 
SBA financial assistance and makes loans to small businesses in amounts 
up to $25,000.
    Lender is an institution that has executed a participation 
agreement with SBA under the guaranteed loan program.
    Loan Instruments  are the Authorization, note, instruments of 
hypothecation, and all other agreements and documents related to a 
loan.
    Operating Company is an eligible small business actively involved 
in conducting business operations now or about to be located on real 
property owned by a Passive Company, or using or about to use in its 
business 

[[Page 64375]]
operations personal property owned by a Passive Company.
    Preference is any arrangement giving a Lender or a CDC a preferred 
position compared to SBA relating to the making of a business loan with 
respect to such things as repayment, collateral, guarantees, control, 
maintainance of a compensating balance, purchase of a Certificate of 
deposit or acceptance of a separate or companion loan, without SBA's 
consent.
    Rural Area is a political subdivision or unincorporated area in a 
non-metropolitan county (as defined by the Department of Agriculture), 
or, if in a metropolitan county, any such subdivision or area with a 
resident population under 20,000 which is designated by SBA as rural.
    Service Provider is an entity that contracts with a Lender or CDC 
to perform management, marketing, legal or other services.

Subpart A--Policies Applying to All Business Loans

Eligibility Requirements

Sec. 120.100  What are the basic requirements for all Borrowers?

    To be an eligible Borrower for an SBA loan, a small business must:
    (a) Be an operating business (except for loans to Passive 
Companies);
    (b) Be organized for profit;
    (c) Be located in the United States;
    (d) Be small under the size requirements of Part 121 of this 
chapter (including affiliates). See subpart H of this part for the size 
standards of Part 121 of this chapter which apply only to 504 loans; 
and
    (e) Must demonstrate a need for the desired credit.

Sec. 120.101  Credit not available elsewhere.

    SBA provides business loan assistance only to applicants for whom 
the desired credit is not otherwise available on reasonable terms from 
non-Federal sources. SBA requires the Lender or CDC to certify or 
otherwise show that the desired credit is unavailable to the applicant 
on reasonable terms and conditions from non-Federal sources without SBA 
assistance, taking into consideration the prevailing rates and terms in 
the community in or near where the applicant conducts business, for 
similar purposes and periods of time. Submission of an application to 
SBA by a Lender or CDC constitutes certification by the Lender or CDC 
that it has examined the availability of credit to the applicant, has 
based its certification upon that examination, and has documentation in 
its file to support the certification.

Sec. 120.102  Funds not available from alternative sources, including 
personal resources of principals.

    An applicant for a business loan must show that the desired funds 
are not available from the personal resources of the applicant's 
principals or other sources such as the sale of the applicant's assets 
or securities. SBA may require the use of personal resources before a 
loan will be granted, unless SBA determines that undue hardship would 
result or if the loan is to an employee trust.

Sec. 120.103  Are farm enterprises eligible?

    Federal financial assistance to agricultural enterprises is 
generally made by the United States Department of Agriculture (USDA), 
but may be made by SBA under the Memorandum of Understanding signed by 
SBA and USDA. Farm-related businesses are eligible businesses under 
SBA's business loan programs.

Sec. 120.104  Are businesses financed by SBICs eligible?

    SBA may make or guarantee loans to a business financed by an SBIC 
if SBA's collateral position will be superior to that of the SBIC. SBA 
may also make or guarantee a loan to an otherwise eligible small 
business which temporarily is owned or controlled by an SBIC under the 
regulations in part 107 of this chapter. SBA neither guarantees SBIC 
loans nor makes loans jointly with SBICs.

Sec. 120.105  Special consideration for veterans.

    SBA will give special consideration to a small business owned by a 
veteran or, if the veteran chooses not to apply, to a business owned or 
controlled by one of the veteran's dependents. If the veteran is 
deceased or permanently disabled, SBA will give special consideration 
to one survivor or dependent. SBA will process the application of a 
business owned or controlled by a veteran or dependent promptly, 
resolve close questions in the applicant's favor, and pay particular 
attention to maximum loan maturity. For SBA loans, a veteran is a 
person honorably discharged from active military service.

Ineligible Businesses and Eligible Passive Companies

Sec. 120.110  What businesses are ineligible for SBA business loans?

    The following types of businesses are ineligible:
    (a) Non-profit businesses (for-profit subsidiaries are eligible);
    (b) Financial businesses primarily engaged in the business of 
lending, such as banks, finance companies, and factors (pawn shops, 
although engaged in lending, may qualify in some circumstances);
    (c) Passive businesses owned by developers and landlords that do 
not actively use or occupy the assets acquired or improved with the 
loan proceeds (except Eligible Passive Companies under Sec. 120.111);
    (d) Life insurance companies;
    (e) Businesses located in a foreign country (businesses in the U.S. 
owned by aliens may qualify);
    (f) Pyramid sale distribution plans;
    (g) Businesses deriving more than one-third of gross annual income 
from legal gambling activities);
    (h) Businesses engaged in any illegal activity;
    (i) Private clubs and businesses which limit the number of 
memberships for reasons other than capacity;
    (j) Government-owned entities (except for businesses owned or 
controlled by a Native American tribe);
    (k) Businesses principally engaged in teaching, instructing, 
counseling or indoctrinating religion or religious beliefs, whether in 
a religious or secular setting;
    (l) Consumer and marketing cooperatives (producer cooperatives are 
eligible);
    (m) Loan packagers earning 30 percent or more of their gross annual 
revenue from packaging SBA loans;
    (n) Businesses with an Associate considered to have control under 
Part 121 who is incarcerated, on probation, on parole, or subject to 
pending felony charges;
    (o) Businesses in which the Lender or CDC, or any of its Associates 
owns an equity interest (unless waived by SBA for good cause in the 
case of minor ownership interests);
    (p) Businesses which:
    (1) Present live performances of a prurient sexual nature; or
    (2) Derive significant gross revenue through the sale of products 
or services, or the presentation of depictions or displays, of a 
prurient sexual nature;
    (q) Unless waived by SBA for good cause, businesses that have 
previously defaulted on a Federal loan or Federally assisted financing, 
resulting in the Federal government or any of its agencies or 
Departments sustaining a loss in any of its programs, and businesses 
owned or controlled by an applicant or any of its Associates which 
previously owned, operated, or controlled a business which defaulted 

[[Page 64376]]
on a Federal loan and caused the Federal government or any of its 
agencies or Departments to sustain a loss in any of its programs. For 
purposes of this section, a compromise agreement shall also be 
considered a loss; and
    (r) Businesses primarily engaged in political or lobbying 
activities.

Sec. 120.111  What conditions must an Eligible Passive Company satisfy?

    An Eligible Passive Company must use loan proceeds to acquire or 
lease, and/or improve or renovate real or personal property (including 
eligible refinancing) that it leases to an Operating Company for the 
conduct of the Operating Company's business. Any ownership structure or 
legal form may qualify as a Eligible Passive Company, except revocable 
trusts and other grantor trusts.
    (a) Conditions that apply to all legal forms:
    (1) The Operating Company is an eligible small business, and the 
proposed use of the proceeds would have been an eligible use if the 
Operating Company were obtaining the financing directly;
    (2) Both the Eligible Passive Company and the Operating Company 
must be small under the appropriate size standards in part 121 of this 
chapter;
    (3) The lease between the Eligible Passive Company and the 
Operating Company must be in writing and must be subordinated to SBA's 
mortgage, trust deed lien, or security interest on the property. Also, 
the Eligible Passive Company (as landlord) must furnish as collateral 
for the loan an assignment of all rents paid under the lease;
    (4) The lease, including options to renew exercisable solely by the 
Operating Company, must have a remaining term at least equal to the 
term of the loan;
    (5) The Operating Company must be a guarantor or a co-borrower 
(with the Eligible Passive Company) of the loan; and
    (6) Each holder of an ownership interest constituting at least 20 
percent of the Eligible Passive Company or the Operating Company must 
guarantee the loan (the trustee shall execute the guarantee on behalf 
of any trust).
    (b) Additional conditions that apply to irrevocable trusts. A trust 
qualifying as a Eligible Passive Company may engage in other activities 
as authorized by its trust agreement. For purposes of this section, the 
trustee shall certify to SBA that:
    (1) The trustee has authority to act;
    (2) The trust is irrevocable, and is not regarded as a grantor 
trust for tax purposes;
    (3) The trust has the authority to borrow funds, pledge trust 
assets, and lease the property to the Operating Company;
    (4) The trustee has provided accurate, pertinent language from the 
trust agreement confirming the above; and
    (5) The trustee has provided and will continue to provide SBA with 
a true and complete list of all trustors and donors.

Uses of Proceeds

Sec. 120.120  What are eligible uses of proceeds?

    A small business must use an SBA loan for sound business purposes. 
The uses of proceeds are prescribed in each loan's Authorization.
    (a) A Borrower may use loan proceeds from any SBA loan to:
    (1) Acquire land (by purchase or lease);
    (2) Improve a site (grading, streets, parking lots, landscaping);
    (3) Purchase an existing building;
    (4) Convert, expand or renovate an existing building;
    (5) Construct a new building; and/or
    (6) Acquire (by purchase or lease) and install machinery and 
equipment (in the 504 program, with a useful life of at least 10 years 
and at a fixed location, unless essential to the Project).
    (b) A Borrower may also use 7(a) and microloan proceeds for:
    (1) Inventory;
    (2) Supplies;
    (3) Raw materials;
    (4) Working capital; and
    (5) Refinancing certain outstanding debts.

Sec. 120.130  Restrictions on uses of proceeds.

    SBA will not authorize nor may a Borrower use loan proceeds for the 
following purposes (including the replacement of funds used for any 
such purpose):
    (a) Payments, distributions or loans to Associates of the applicant 
(except for ordinary compensation for services rendered);
    (b) Refinancing a debt owed to a Small Business Investment Company 
(``SBIC'');
    (c) Speculation in any kind of real or personal property;
    (d) Floor plan financing or other revolving line credit, except 
under Sec. 120.390;
    (e) Investments in real or personal property acquired and held 
primarily for sale, lease, or investment and not used within 3 years in 
an otherwise eligible business (except for a loan to an Eligible 
Passive Company or to a small contractor under Sec. 120.310);
    (f) A purpose which does not benefit the small business; or
    (g) Any use restricted by Secs. 120.201-120.203 and 120.884 
(specific to 7(a) loans and 504 loans respectively).

Ethical Requirements

Sec. 120.140  What ethical requirements apply to participants?

    Lenders, Intermediaries, CDCs, Associate Development Companies 
(``ADCs'') and their Associates (in this section ``Participants'') must 
act ethically and exhibit good character. Ethical indiscretion of an 
Associate shall be attributed to the Participant. A Participant must 
promptly notify SBA if it obtains information concerning the unethical 
behavior of an Associate. The following are examples of such unethical 
behavior. A Participant may not:
    (a) Self-deal;
    (b) Have a real or apparent conflict of interest with a small 
business with which it is dealing (including any of its Associates) or 
SBA;
    (c) Own an equity interest in a business that has received or is 
applying to receive SBA financing (during the term of the loan or 
within 6 months prior to the loan application);
    (d) Be incarcerated, on parole, or on probation;
    (e) Knowingly misrepresent or make a false statement to SBA;
    (f) Engage in conduct reflecting a lack of business integrity or 
honesty;
    (g) Be a convicted felon, or have an adverse final civil judgment 
(in a case involving fraud, breach of trust, or other conduct) that 
would cause the public to question the Participant's business 
integrity, taking into consideration such factors as the magnitude, 
repetition, harm caused, and remoteness in time of the activity or 
activities in question;
    (h) Accept funding from any source that restricts, prioritizes, or 
conditions the types of small businesses that the CDC, ADC, or 
Intermediary may assist under an SBA program or that imposes any 
conditions or requirements upon recipients of SBA assistance 
inconsistent with SBA's loan programs or regulations;
    (i) Fail to disclose to SBA all relationships between the small 
business and its Associates, the Participant, and/or the lenders 
financing the Project;
    (j) Fail to disclose to SBA whether the loan will:
    (1) Reduce the exposure of a Lender in a position to sustain a 
loss;
    (2) Directly or indirectly finance the purchase of real estate, 
personal property or services (including insurance) from the 
Participant;
    (3) Repay or refinance a debt due a Participant; 
    
[[Page 64377]]

    (4) Require the small business, or an Associate, to invest in the 
Participant (except for institutions which require an investment from 
all members as a condition of membership, such as a Production Credit 
Association); or
    (5) Involve a Lender, CDC or Associate that has issued a commitment 
to make or consider the loan prior to receipt of the loan application, 
including a forward commitment to a builder or developer; or
    (k) Engage in any activity which taints its objective judgment in 
evaluating the loan.

Credit Criteria for SBA Loans

Sec. 120.150  What are SBA's lending criteria?

    The Borrower (and the Operating Company) must be creditworthy. 
Loans must be so sound as to assure repayment. SBA will consider:
    (a) Character, reputation, and credit history of the Borrower (and 
the Operating Company, if applicable), its Associates, and guarantors;
    (b) Experience and depth of management;
    (c) Strength of the business;
    (d) Past earnings, projected cash flow, and future prospects;
    (e) Ability to repay the loan with earnings from the business;
    (f) Sufficient invested equity to operate on a sound financial 
basis;
    (g) Potential for long-term success; and
    (h) Nature and value of collateral. (Inadequate colateral will not 
be the sole reason for denial of a loan request.)

Sec. 120.151  What is the statutory limit for total loans to a 
Borrower?

    The aggregate amount of the SBA portions of all loans to a single 
Borrower, including the Borrower's affiliates as defined in part 121 of 
this chapter, shall not exceed $750,000, except as otherwise authorized 
by statute for a specific loan program.

Sec. 120.160  Loan conditions.

    The following requirements are normally required by SBA for all 
business loans:
    (a) Personal guarantees. Associates and holders of at least a 20 
percent ownership interest generally must guarantee the loan. SBA, in 
its discretion, may require holders of interests of less than 20 
percent to guarantee the loan.
    (b) Appraisals. SBA may require professional appraisals of the 
applicant's and principals' assets, a survey, or a feasibility study.
    (c) Hazard Insurance. SBA requires hazard insurance on all 
collateral.
    (d) Taxes. If any portion of the loan proceeds will be used for 
working capital, the applicant may not use any of the proceeds to pay 
past-due Federal and state payroll taxes.

Sec. 120.161  Lending limits.

    The outstanding balance of all SBA financial assistance to a 
Borrower and its affiliates under the business loan programs covered by 
this Part must not exceed $750,000 (except as otherwise authorized for 
a specific loan program).

Requirements Imposed Under Other Laws and Orders

Sec. 120.170  Flood insurance.

    Under the Flood Disaster Protection Act of 1973 (Sec. 205(b) of 
Public Law 93-234; 87 Stat. 983 (42 U.S.C. 4000 et seq.)), a loan 
recipient must obtain flood insurance if any building (including mobile 
homes), machinery, or equipment acquired, installed, improved, 
constructed, or renovated with the proceeds of SBA financial assistance 
is located in a special flood hazard area. The requirement applies also 
to any inventory (business loan program), fixtures or furnishings 
contained or to be contained in the building. Mobile homes on a 
foundation are buildings. SBA, Lenders, CDCs, and Intermediaries must 
notify Borrowers that flood insurance must be maintained.

Sec. 120.171  Compliance with child support obligations.

    Any holder of 50% or more of the ownership interest in the 
recipient of an SBA loan must certify that he or she is not more than 
60 days delinquent on any obligation to pay child support arising 
under:
    (a) An administrative order;
    (b) A court order;
    (c) A repayment agreement between the recipient and the custodial 
parent; or
    (d) A repayment agreement between the recipient and a State agency 
providing child support enforcement services.

Sec. 120.172  Flood-plain and wetlands management.

    (a) All loans must conform to requirements of Executive Orders 
11988, ``Flood Plain Management'' (3 CFR, 1977 Comp., p. 117) and 
11990, ``Protection of Wetlands'' (3 CFR, 1977 Comp., p. 121). Lenders, 
Intermediaries, CDCs, and SBA must comply with requirements applicable 
to them. Applicants must show:
    (1) Whether the location for which financial assistance is proposed 
is in a floodplain or wetland;
    (2) If it is in a floodplain, that the assistance is in compliance 
with local land use plans; and
    (3) That any necessary construction or use permits will be issued.
    (b) Generally, there is an 8-step decision making process with 
respect to:
    (1) Construction or acquisition of anything, other than a building;
    (2) Repair and restoration equal to more than 50% of the market 
value of a building; or
    (3) Replacement of destroyed structures.
    (c) SBA may determine for the following types of actions, on a 
case-by-case basis, that the full 8-step process is not warranted and 
that only the first step (determining if a proposed action is in the 
base floodplain) need be completed:
    (1) Actions located outside the base floodplain;
    (2) Repairs, other than to buildings, that are less than 50% of the 
market value;
    (3) Replacement of building contents, materials, and equipment;
    (4) Hazard mitigation measures;
    (5) Working capital loans; and
    (6) SBA loan assistance of $1,500,000 or less.

Sec. 120.173  Lead-based paint.

    If loan proceeds are for the construction or rehabilitation of a 
residential structure, lead-based paint may not be used on any interior 
surface, or on any exterior surface that is readily accessible to 
children under the age of 7.

Sec. 120.174  Earthquake hazards.

    When loan proceeds are used to construct a new building or an 
addition to an existing building, the construction must conform with 
the ``National Earthquake Hazards Reduction Program (NEHRP) Recommended 
Provisions for the Development of Seismic Regulations for New 
Buildings,'' obtainable from the Interagency Committee on Seismic 
Safety in Construction.

Sec. 120.175  Coastal barrier islands.

    SBA and Intermediaries may not make or guarantee any loan within 
the Coastal Barrier Resource System.

Sec. 120.176  Compliance with other laws.

    All SBA loans are subject to all applicable laws, including 
(without limitation) the civil rights laws (see Parts 112, 113, 117 and 
136 of this chapter), prohibiting discrimination on the grounds of 
race, color, national origin, religion, sex, marital status, disability 
or age. SBA requests agreements or evidence to support or document 
compliance with these laws, including reports required by applicable 
statutes or the regulations in this chapter. 

[[Page 64378]]

Enforceability Despite Rule Changes

Sec. 120.180  Are rules enforceable if they are changed later?

    Regulations and contractual provisions in effect at the time of a 
transaction govern an SBA loan financing transaction, notwithstanding 
subsequent rule or contract changes. SBA may conduct an enforcement 
action regarding any violation of provisions of regulations or 
contracts applicable at the time, but no longer in effect or in use.

Loan Applications

120.190  Where does an applicant apply for a loan?

    An applicant for a loan should apply to:
    (a) A Lender for a guaranteed or immediate participation loan;
    (b) A CDC for a 504 loan;
    (c) An Intermediary for a Microloan; or
    (d) SBA for a direct loan.

Sec. 120.191  The contents of a business loan application.

    SBA requires that an application for a business loan contain, among 
other things, a description of the history and nature of the business, 
the amount and purpose of the loan, the collateral offered for the 
loan, current financial statements, historical financial statements (or 
tax returns if appropriate) for the past three years, and a business 
plan, when applicable. Personal histories and financial statements will 
be required from principals of the applicant (and the Operating 
Company, if applicable).

Sec. 120.192  Approval or denial.

    Applicants receive notice of approval or denial by the Lender, CDC, 
Intermediary, or SBA, as appropriate. Notice of denial will include the 
reasons. If a loan is approved, an Authorization will be issued.

Sec. 120.193  Reconsideration after denial.

    An applicant or recipient of a business loan may request 
reconsideration of a denied loan or loan modification request within 6 
months of denial. Applicants denied due to a size determination can 
appeal that determination under part 121 of this chapter. All others, 
including those requesting modification of an existing loan condition, 
can only appeal to the office that denied the initial loan application 
or request. To prevail, the applicant must demonstrate that it has 
overcome all legitimate reasons for denial. Six months after denial, a 
new application is required. If the reconsideration is denied, an 
applicant may request a final reconsideration by the AA/FA, whose 
decision is final.

Computerized SBA Forms

Sec. 120.194  Use of computer forms.

    Any applicant or other party involved in SBA Business Loan Programs 
may use computer generated SBA application forms, closing forms, and 
other forms designated by SBA if the forms are exact reproductions of 
SBA forms.

Sec. 120.195  Duty of Lender, CDC, Intermediary Lender, and Borrower to 
report fees.

    (a) A Lender, CDC, or Intermediary Lender must report to SBA all 
fees of which it has knowledge or which it charges the applicant, 
including insurance fees. It must refund to the applicant any fees that 
SBA considers excessive. Failure to do so may result in an action by 
SBA to suspend or revoke the Lender's participation status.
    (b) An applicant for a business loan must certify to SBA the name 
of each individual or entity (attorney, loan packager, broker, 
accountant, Service Provider, Lender) that helped the applicant obtain 
the loan, describing the services performed, and disclosing the amount 
of each fee.

Subpart B--Policies Specific to 7(a) Loans

Bonding Requirements

Sec. 120.200  What bonding requirements exist during construction?

    On 7(a) loans where the SBA guarantee covers a period of 
construction, the Borrower must supply a 100 percent payment and 
performance bond and builder's risk insurance, unless waived by SBA.

Limitations on Use of Proceeds

Sec. 120.201  Refinancing unsecured or undersecured loans.

    A Borrower may not use 7(a) loan proceeds to pay off an 
inadequately secured creditor, including a Lender, causing a shift to 
SBA of all or part of a potential loss from an existing debt.

Sec. 120.202  Restrictions on loans for changes in ownership.

    A Borrower may not use loan proceeds to purchase a portion of a 
business or a portion of another owner's interest. One or more current 
owners may use loan proceeds to purchase the entire interest of another 
current owner, or a Borrower can purchase ownership of an entire 
business.

Sec. 120.203  Revolving credit.

    SBA may not use its regular 7(a) program for a revolving line of 
credit, such as ``floor plan'' financing. (See Sec. 120.390 for special 
Caplines program.)

Maturities; Interest Rates; Loan and Guarantee Amounts

Sec. 120.210  What percentage of a loan may SBA guarantee?

    SBA's guarantee percentage must not exceed the applicable 
percentage established in section 7(a) of the Act. The maximum 
allowable guarantee percentage on a loan will be determined by the loan 
amount. As of October 31, 1995, the percentages are: Loans of $100,000 
or less may receive a maximum guarantee of 80 percent. All other loans 
may receive a maximum guarantee of 75 percent, not to exceed $750,000.

Sec. 120.211  What limits are there on the amounts of direct loans?

    (a) The statutory limit for direct loans made under the authority 
of section 7(a)(1)-(19) of the Small Business Act is $350,000. SBA has 
established an administrative limit of $150,000 for direct loans. The 
Associate Administrator for Financial Assistance (AA/FA) may authorize 
acceptance of an application up to the statutory limit.
    (b) The statutory limit for direct loans made under the authority 
of section 7(a)(20) is $750,000. SBA has established an administrative 
limit of $150,000. The Associate Administrator for Minority Enterprise 
Development may authorize the acceptance of an application that exceeds 
the administrative limit.
    (c) The statutory limit on SBA's portion of an immediate 
participation loan is the lesser of 90 percent of the loan or $350,000. 
The administrative limit is the lesser of 75 percent of the loan or 
$150,000. The AA/FA may authorize exceptions to the administrative 
limit up to $350,000.

Sec. 120.212  What limits are there on loan maturities?

    The term of a loan shall be:
    (a) The shortest appropriate term, depending upon the Borrower's 
ability to repay;
    (b) Ten years or less, unless it finances or refinances real estate 
or equipment with a useful life exceeding ten years; and
    (c) A maximum of 25 years, including extensions. (A portion of a 
loan used to acquire or improve real property may have a term of 25 
years plus an additional period needed to complete the construction or 
improvements.)

[[Page 64379]]

Sec. 120.213  What fixed interest rates may a Lender charge?

    (a) Fixed Rates for Guaranteed Loans. A loan may have a reasonable 
fixed interest rate. SBA periodically publishes the maximum allowable 
rate in the Federal Register.
    (b) Direct loans. A statutory formula based on the cost of money to 
the Federal government determines the interest rate on direct loans. 
SBA publishes the rate periodically in the Federal Register.

Sec. 120.214  What conditions apply for variable interest rates?

    A Lender may use a variable rate of interest, upon SBA's approval. 
SBA's maximum allowable rates apply only to the initial rate on the 
date SBA received the loan application. SBA shall approve the use of a 
variable interest rate under the following conditions:
    (a) Frequency. The first change may occur on the first calendar day 
of the month following initial disbursement, using the base rate (see 
paragraph (c) of this section) in effect on the first business day of 
the month. After that, changes may occur no more often than monthly.
    (b) Range of fluctuation. The amount of fluctuation shall be equal 
to the movement in the base rate. The difference between the initial 
rate and the ceiling rate may be no greater than the difference between 
the initial rate and the floor rate.
    (c) Base rate. The base rate shall be the prime rate in effect on 
the first business day of the month, printed in a national financial 
newspaper published each business day, or the SBA Optional Peg Rate 
which SBA publishes quarterly in the Federal Register.
    (d) Maturities under 7 years. For loans with maturities under seven 
years, the maximum interest rate shall not exceed two and one-quarter 
(2\1/4\) percentage points over the base rate.
    (e) Maturities of 7 years or more. For loans with maturities of 
seven or more years, the maximum interest rate shall not exceed two and 
three-quarters (2\3/4\) percentage points over the base rate.
    (f) Higher interest rates for smaller loans. For a variable rate 
loan over $25,000 but not exceeding $50,000, the interest rate may be 
one percent more than the maximum interest rate described above. For a 
variable rate loan of $25,000 or less, the maximum interest rate 
described above may be increased by two percentage points.
    (g) Amortization. Initial amortization of principal and interest 
may be recomputed as interest rates fluctuate, as directed by SBA. With 
prior approval of SBA, the Lender may use certain other amortization 
methods.

Fees for Guaranteed Loans

Sec. 120.220  Guarantee fees that Lender pays SBA.

    (a) The Lender pays a guarantee fee to SBA for each loan as 
follows:

----------------------------------------------------------------------------------------------------------------
                                     Fee measured as                                                            
    Guaranteed portion of loan        percentage of       When payable     Lender may get fee   When SBA refunds
                                   guaranteed portion                         from borrower    fee from borrower
----------------------------------------------------------------------------------------------------------------
Under 12 months..................  .25%..............  With guarantee      When SBA approves   If application   
                                                        application.        loan.               withdrawn or    
                                                                                                denied \1\      
More than 12 months and total      2.0% of guaranteed  Within 90 days of   After First         If loan cancelled
 guaranteed portion is $80,000 or   portion.            SBA approval.       disbursement.       and never       
 less.                                                                                          disbursed       
More than 12 months and amount of  3%................  Within 90 days of   After first         If loan cancelled
 guaranteed portion of loan that                        SBA approval.       disbursement.       and never       
 is $250,000 or less.                                                                           disbursed       
More than 12 months and amount of  3.0% of 1st         Within 90 days of   After first         If loan cancelled
 guaranteed portion of loan         $250,000 plus       SBA approval.       disbursement.       and never       
 between $250,000 and $500,000.     3.5% of balance.                                            disbursed       
More than 12 months and amount of  3.0% of 1st         Within 90 days of   After first         If loan cancelled
 guaranteed portion of loan         $250,000 plus       SBA approval.       disbursement.       and never       
 exceeding $500,000.                3.5% of next                                                disbursed.      
                                    $250,000 plus                                                               
                                    3.875% of the                                                               
                                    amount exceeding                                                            
                                    $500,000.                                                                   
----------------------------------------------------------------------------------------------------------------
\1\ Also, if SBA substantially changes the Lender's loan terms and approves the loan, but the modified terms are
  unacceptable to the Borrower or Lender. (The Lender must request refund in writing within 30 calendar days of 
  the approval).                                                                                                

    (b) The Lender shall also pay SBA an annual fee equal to 0.5 
percent of the outstanding balance of the guaranteed portion of each 
loan.
    (c) If the guarantee fee is not paid, SBA may terminate the 
guarantee. The Borrower may use loan proceeds to reimburse the Lender 
for the guarantee fee. Acceptance of the guarantee fee by SBA shall not 
waive any right of SBA arising from the Lender's misconduct or 
violation of any provision of this part, the guarantee agreement, the 
Authorization, or other loan documents.

Sec. 120.221  Fees which the Lender may collect from a loan applicant.

    (a) Service and packaging fees. The Lender may charge an applicant 
reasonable fees (customary for similar Lenders in the geographic area 
where the loan is being made) for packaging and other services. The 
Lender must advise the applicant in writing that the applicant is not 
required to obtain or pay for unwanted services. The applicant is 
responsible for deciding whether fees are reasonable. SBA may review 
these fees at any time. Lender must refund any such fee considered 
unreasonable by SBA.
    (b) Commitment fee for Export Working Capital loan. After SBA 
approves a loan under the Export Working Capital Program, the Lender 
may charge the borrower a commitment fee of \1/4\ of 1 percent (or $200 
minimum) of the loan.
    (c) Extraordinary servicing. Subject to prior written SBA approval, 
if all or part of a loan will have extraordinary servicing needs, the 
Lender may charge the applicant a service fee not to exceed 2 percent 
per year on the outstanding balance of the part requiring special 
servicing.
    (d) Out-of-pocket expenses. The Lender may collect from the 
applicant 

[[Page 64380]]
necessary out-of-pocket expenses such as filing or recording fees.
    (e) Late payment fee. The Lender may charge the Borrower a late 
payment fee not to exceed 5 percent of the regular loan payment.
    (f) No prepayment fee. The Lender may not charge a fee for full or 
partial prepayment of a loan.

Sec. 120.222  Fees which the Lender or Associate may not collect from 
the Borrower or share with third parties.

    The Lender or its Associate may not:
    (a) Require the applicant or Borrower to pay the Lender, an 
Associate, or any party designated by either, any fees or charges for 
goods or services, including insurance, as a condition for obtaining an 
SBA guaranteed loan (unless permitted by this part);
    (b) Charge an applicant any commitment, bonus, broker, commission, 
or similar fee;
    (c) Charge points or add-on interest;
    (d) Share any premium received from the sale of an SBA guaranteed 
loan in the secondary market with either a packager or other loan-
referral source; or
    (e) Charge the Borrower for legal services, unless they are hourly 
charges for requested services actually rendered.

Subpart C--Special Purpose Loans

Sec. 120.300  Statutory authority.

    In addition to the general 7(a) business loan program, Congress has 
authorized several special purpose programs in various subsections of 
the Act. Generally, the regular 7(a) loan policies, eligibility 
requirements and credit criteria apply. The sections of this subpart 
prescribe the special conditions applying to each special purpose 
program. As with other business loans, special purpose loans are 
available only to the extent funded by annual appropriations.

Disabled Assistance Loan Program (DAL)

Sec. 120.310  What assistance is available for the disabled?

    Section 7(a)(10) of the Act authorizes SBA to guarantee or make 
direct loans to the disabled. SBA distinguishes two kinds of 
assistance:
    (a) DAL-1. DAL-1 Financial Assistance is available to non-profit 
public or private organizations for the disabled that employ the 
disabled; or
    (b) DAL-2. DAL-2 Financial Assistance is available to:
    (1) Small businesses wholly owned by the disabled; and
    (2) Disabled individuals to establish, acquire, or operate a small 
business.

Sec. 120.311  Definitions.

    (a) Organization for the disabled means one which:
    (1) Is organized under federal or state law to operate in the 
interest of the disabled;
    (2) Is non-profit;
    (3) Employs disabled individuals for seventy-five percent of the 
time needed to produce commodities or services for sale; and
    (4) Complies with occupational and safety standards prescribed by 
the Department of Labor.
    (b) Disabled individual means a person who has a permanent 
physical, mental or emotional impairment, defect, ailment, disease or 
disability which limits the type of employment for which the person 
would otherwise be qualified.

Sec. 120.312  DAL-1 use of proceeds and other program conditions.

    (a) DAL-1 applicants must submit appropriate documents to establish 
program eligibility.
    (b) Generally, applicants may use loan proceeds for any 7(a) loan 
purposes. Loan proceeds may not be used:
    (1) To purchase or construct facilities if construction grants and 
mortgage assistance are available from another Federal source; or
    (2) For supportive services (expenses incurred by a DAL-1 
organization to subsidize wages of low producers health and 
rehabilitation services, management, training, education, and housing 
of disabled workers).
    (c) SBA does not consider a DAL-1 organization to have a conflict 
of interest if one or more of its Associates is an Associate of the 
Lender.

Sec. 120.313  DAL-2 use of proceeds and other program conditions.

    (a) The DAL-2 loan proceeds may be used for normal 7(a) loan 
purposes.
    (b) An applicant may use DAL-2 loan proceeds to acquire an eligible 
small business without complying with the change of ownership 
conditions in Sec. 120.206.
    (c) A DAL-2 applicant must submit evidence from a physician, 
psychiatrist, or other qualified professional as to the permanent 
nature of the disability and the limitation it places on the applicant.

Sec. 120.314  Resolving doubts about creditworthiness.

    For the purpose of the DAL Program, SBA shall resolve doubts 
concerning the creditworthiness of an applicant in favor of the 
applicant. However, the applicant must present satisfactory evidence of 
repayment ability. Personal guarantees of Associates are not required.

Sec. 120.315  Interest rate and loan limit.

    The interest rate on direct DAL loans is three percent. There is an 
administrative limit of $150,000 on a direct DAL loan.

Businesses Owned by Low Income Individuals

Sec. 120.320  Policy.

    Section 7(a)(11) of the Act authorizes SBA to make or guarantee 
loans to establish, preserve or strengthen small business concerns:
    (a) Located in an area having high unemployment according to the 
Department of Labor;
    (b) Located in an area in which a high percentage of individuals 
have a low income inadequate to satisfy basic family needs; and
    (c) More than 50 percent owned by low income individuals.

Energy Conservation

Sec. 120.330  Who is eligible for an energy conservation loan?

    SBA may make or guarantee loans to assist a small business to 
design, engineer, manufacture, distribute, market, install, or service 
energy devices or techniques designed to conserve the Nation's energy 
resources.

Sec. 120.331  What devices or techniques are eligible for a loan?

    Eligible energy conservation devices or techniques include:
    (a) Solar thermal equipment;
    (b) Photovoltaic cells and related equipment;
    (c) A product or service which increases the energy efficiency of 
existing equipment, methods of operation or systems which use fossil 
fuels, and which is on the Energy Conservation Measures list of the 
Secretary of Energy;
    (d) Equipment producing energy from wood, biological waste, grain 
or other biomass energy sources;
    (e) Equipment for cogeneration of energy, district heating or 
production of energy from industrial waste;
    (f) Hydroelectric power equipment;
    (g) Wind energy conversion equipment; and
    (h) Engineering, architectural, consulting, or other professional 
services necessary or appropriate for any of the devices or techniques 
in paragraphs (a) through (g) of this section.

Sec. 120.332  What are the eligible uses of proceeds?

    (a) Acquire property. The Borrower may use the loan proceeds to 
acquire land necessary for imminent plant construction, buildings, 
machinery, 

[[Page 64381]]
equipment, furniture, fixtures, facilities, supplies, and material 
needed to accomplish any of the eligible program purposes in 
Sec. 120.330.
    (b) Research and development. Up to 30% of loan proceeds may be 
used for research and development:
    (1) Of an existing product or service; or
    (2) A new product or service.
    (c) Working capital. The Borrower may use proceeds for working 
capital for entering or expanding in the energy conservation market.

Sec. 120.333  Are there any special credit criteria?

    In addition to regular credit evaluation criteria, SBA shall weigh 
the greater risk associated with energy projects. SBA shall consider 
such factors as quality of the product or service, technical 
qualifications of the applicant's management, sales projections, and 
financial status.

Export Working Capital Program (EWCP)

Sec. 120.340  What is the Export Working Capital Program?

    Under the EWCP, SBA guarantees a revolving line of credit for 
export purposes (section 7(a)(14) of the Act). Loan maturities may be 
for up to three years with annual renewals. Proceeds can be used only 
to finance export transactions. Loans can be for single or multiple 
export sales.

Sec. 120.341  Who is eligible?

    In addition to the criteria applicable to all 7(a) loans, an 
applicant must be in business for one full year at the time of 
application, but not necessarily in the exporting business. SBA may 
waive this requirement if the applicant has sufficient export trade 
experience or other managerial experience.

Sec. 120.342  What are eligible uses of proceeds?

    Loan proceeds may be used:
    (a) To acquire inventory;
    (b) To pay the manufacturing costs of goods for export;
    (c) To purchase goods or services for export;
    (d) To support standby letters of credit;
    (e) To develop or penetrate foreign markets;
    (f) For pre-shipment working capital; and
    (g) For post-shipment exposure coverage.

Sec. 120.343  Collateral.

    A Borrower must give SBA a first security interest sufficient to 
cover 100 percent of the EWCP loan amount (such as insured accounts 
receivable or letters of credit). Collateral must be located in the 
United States, its territories or possessions.

Sec. 120.344  Cash flow projections.

    An applicant must submit cash flow projections to support the need 
for the loan and the ability to repay. After the loan is made, the loan 
recipient must submit monthly progress reports.

International Trade Loans

Sec. 120.345  Policy.

    Section 7(a)(16) of the Act authorizes SBA to guarantee loans to 
small businesses that are:
    (a) Engaged or preparing to engage in international trade; or
    (b) Adversely affected by import competition.

Sec. 120.346  Eligibility.

    (a) An applicant must establish that:
    (1) The loan proceeds will significantly expand an existing export 
market or develop new export markets; or
    (2) The applicant business is adversely affected by import 
competition; and
    (3) Upgrading facilities or equipment will improve the applicant's 
competitive position.
    (b) The applicant must have a business plan reasonably supporting 
its projected export sales.

Sec. 120.347  Use of proceeds.

    The Borrower may use loan proceeds to acquire, construct, renovate, 
modernize, improve, or expand facilities and equipment to be used in 
the United States to produce goods or services involved in 
international trade.

Sec. 120.348  Amount and percentage of guarantee.

    SBA can guarantee up to $1,250,000 for a combination of fixed-asset 
financing and working capital, supplies and EWCP assistance. The non-
fixed-asset portion cannot exceed $750,000.

Qualified Employee Trusts (ESOP)

Sec. 120.350  Policy.

    Section 7(a)(15) of the Act authorizes SBA to guarantee a loan to a 
qualified employee trust (``ESOP'') to:
    (a) Help finance the growth of its employer's small business; or
    (b) Purchase ownership or voting control of the employer.

Sec. 120.351  Definitions.

    All terms specific to ESOPs have the same definition for purposes 
of this section as in the Internal Revenue Service (IRS) Code (title 26 
of the United States Code) or regulations (26 CFR chapter I).

Sec. 120.352  Use of proceeds.

    Loan proceeds may be used for two purposes.
    (a) Qualified employer securities. A qualified employee trust may 
relend loan proceeds to the employer by purchasing qualified employer 
securities. The small business concern may use these funds for any 
general 7(a) purpose.
    (b) Control of employer. A qualified employee trust may use loan 
proceeds to purchase a controlling interest (51 percent) in the 
employer. Ownership and control must vest in the trust by the time the 
loan is repaid.

Sec. 120.353  Eligibility.

    SBA may assist a qualified employee trust (or equivalent trust) 
that meets the requirements and conditions for an ESOP prescribed in 
all applicable IRS, Treasury and DOL regulations. In addition, the 
following conditions apply:
    (a) The small business must provide the funds needed by the trust 
to repay the loan; and
    (b) The small business must provide adequate collateral.

Sec. 120.354  Creditworthiness.

    In determining repayment ability, SBA shall not consider the 
personal assets of the employee-owners of the trust. SBA shall consider 
the earnings history and projected future earnings of the employer 
small business. SBA may consider the business and management experience 
of the employee-owners. SBA must have evidence that financial 
assistance is not otherwise available by utilizing:
    (a) The personal resources and credit of the principals of the 
small business;
    (b) The resources and credit of the small business; or
    (c) The sale of the assets of the small business.

Veterans Loan Program

Sec. 120.360  Which veterans are eligible?

    SBA may make a direct loan to a small business 51 percent owned by 
one or more of the following eligible veterans:
    (a) Vietnam-era veterans who served for a period of more than 180 
days between August 5, 1964, and May 7, 1975, and were discharged other 
than dishonorably;
    (b) Disabled veterans of any era with a minimum compensable 
disability of 30 percent; or
    (c) A veteran of any era who was discharged for disability. 
    
[[Page 64382]]

Sec. 120.361  Other conditions of eligibility.

    (a) Management and daily operations of the business must be 
directed by one or more of the veteran owners whose veteran status was 
used to qualify for the loan.
    (b) This direct loan program is available only if private sector 
financing and guaranteed loans are not available.
    (c) A veteran may qualify only once for this direct loan program.

Pollution Control Program

Sec. 120.370  Policy.

    Section 7(a)(12) of the Act authorizes SBA to guarantee loans up to 
$1,000,000 to an eligible small business to plan, design or install a 
pollution control facility. An applicant must meet the eligibility 
requirements for 7(a) loans.

Loans to Participants in the 8(a) Program

Sec. 120.375  Policy.

    Section 7(a)(20) of the Act authorizes SBA to provide direct 
(unilaterally or together with Lenders) or guaranteed loans to firms 
participating in the 8(a) Program.

Sec. 120.376  Special requirements.

    The following special conditions apply (otherwise, the general 7(a) 
eligibility criteria apply):
    (a) The Associate Administrator of Minority Enterprise Development 
(``MED'') may waive the direct loan administrative ceiling of $150,000, 
and raise it to $750,000.
    (b) The SBA portion on a guaranteed loan must not exceed $750,000.
    (c) The interest rate on a guaranteed loan shall be the same as on 
regular 7(a) guarantee loans. The interest rate on a direct loan shall 
be one percent less than on a regular direct loan.
    (d) For a direct loan or SBA's portion of an immediate 
participation loan, SBA shall subordinate its security interest on all 
collateral to other debt of the applicant.

Sec. 120.377  Use of proceeds.

    The loan proceeds shall not be used for debt refinancing. A 
manufacturing concern may use loan proceeds for working capital.

Defense Economic Transition Assistance

Sec. 120.380  Program.

    Section 7(a)(21) of the Act authorizes SBA to guarantee loans to 
help eligible small businesses transition from defense to civilian 
markets, or eligible individuals adversely impacted by base closures or 
defense cutbacks to acquire or open and operate a small business.

Sec. 120.381  Eligibility.

    (a) Eligible small businesses. A small business is eligible if it 
has been detrimentally impacted by the closure (or substantial 
reduction) of a Department of Defense installation, or the termination 
(or substantial reduction) of a Department of Defense Program on which 
the small business was a prime contractor, subcontractor, or supplier 
at any tier.
    (b) Eligible individual. An eligible individual, for purposes of 
this program, includes the following persons involuntarily separated 
from their position or voluntarily terminated under a program offering 
inducements to encourage early retirement:
    (1) A member of the Armed Forces of the United States (honorably 
discharged);
    (2) A civilian employee of the Department of Defense; or
    (3) An employee of a prime contractor, sub-contractor, or supplier 
at any tier of a Department of Defense program.

Sec. 120.382  Repayment ability.

    SBA shall resolve reasonable doubts concerning the small business' 
proposed business plan for transition to non-defense-related markets in 
favor of the loan applicant in determining the sound value of the 
proposed loan.

Sec. 120.383  Restrictions on loan processing.

    Since greater risk may be associated with a loan to an applicant 
under this program, a Certified Lender or Preferred Lender shall not 
make a defense economic assistance loan.

CapLines Program

Sec. 120.390  Revolving credit.

    CapLines finances small businesses' short-term, revolving working-
capital needs. Generally, SBA regulations governing the 7(a) program 
also govern this program. Under CapLines, SBA generally can guarantee 
up to $750,000.

Small General Contractors

Sec. 120.391  What is the Small General Contractor Program?

    SBA may make or guarantee loans to finance small general 
contractors to construct or rehabilitate residential or commercial 
property for resale (section 7(a)(9) of the Act). This program provides 
an exception under specified conditions to the general rule against 
financing investment property. ``Construct'' and ``rehabilitate'' mean 
only work done on-site to the structure, utility connections and 
landscaping.

Sec. 120.392  Who may apply?

    A construction contractor or home-builder with a past history of 
profitable construction or rehabilitation projects of comparable type 
and size may apply. An applicant may subcontract a portion of the work. 
Subcontracts in excess of $25,000 may require 100 percent payment and 
performance bonds.

Sec. 120.393  Are there special application requirements?

    (a) An applicant must submit letters from:
    (1) A mortgage lender indicating that permanent mortgage money is 
available to qualified purchasers to buy such properties;
    (2) A real estate broker indicating that a market exists for the 
proposed building and that it will be compatible with its neighborhood; 
and
    (3) An architect, appraiser or engineer agreeing to make 
inspections and certifications to support interim disbursements.
    (b) The Borrower may substitute a letter from a Lender for one or 
more of the letters.

Sec. 120.394  What are the eligible uses of proceeds?

    A Borrower must use the loan proceeds solely to acquire, construct 
or substantially rehabilitate an individual residential or commercial 
building for sale. ``Substantial'' means rehabilitation expenses of 
more than one-third of the purchase price or fair market value at the 
time of the application. A Borrower may use up to 20 percent of the 
proceeds to acquire land, and up to 5 percent for community 
improvements such as curbs and sidewalks.

Sec. 120.395  What is SBA's collateral position?

    SBA will require a lien on the building which must be in no less 
than a second position.

Sec. 120.396  What is the term of the loan?

    The loan must not exceed thirty-six months plus the estimated time 
to complete construction or rehabilitation.

Sec. 120.397  Are there any special restrictions?

    The borrower must not use loan proceeds to purchase vacant land for 
possible future construction or to operate or hold rental property for 
future rehabilitation. SBA may allow rental of the property only if the 
rental will improve the ability to sell the property. The sale must be 
a legitimate change of ownership. 

[[Page 64383]]

Subpart D--Lenders

Sec. 120.400  Participation agreements.

    SBA may enter into participation agreements with Lenders to make 
deferred participation (guaranteed) loans. Participation agreements do 
not obligate SBA to participate in any specific proposed loan that a 
Lender may submit. The existence of a participation agreement does not 
limit SBA's rights to deny a specific loan or establish general 
policies.

Participation Criteria

Sec. 120.410  Requirements for all participating Lenders.

    A Lender must:
    (a) Have a continuing ability to evaluate, process, close, 
disburse, and service small business loans;
    (b) Be open to the public for the making of such loans (not be a 
financing subsidiary, engaged primarily in financing the operations of 
an affiliate);
    (
FR Doc. 95-30327 Business Loan Programs
c) Have continuing good character and reputation, and otherwise 
meet and maintain the ethical requirements of Sec. 120.140; and
    (d) Be supervised and examined by a State or Federal regulatory 
authority, satisfactory to SBA.

Sec. 120.411  Preferences.

    No agreement to participate under the Act shall establish any 
Preferences in favor of the Lender.

Sec. 120.412  Other services Lenders may provide Borrowers.

    Subject to the conflict of interest provision in subpart A of this 
part, Lenders, their Associates or the designees of either may provide 
services to and contract for goods with a Borrower only after full 
disbursement of the loan to the small business or to an account not 
controlled by the Lender, its Associate, or the designee. A Lender, an 
Associate, or a designee providing such services must do so under a 
written contract with the small business, based on time and hourly 
charges, and must maintain time and billing records for examination by 
SBA. Charges made cannot exceed those charged by established 
professional consultants providing similar services.

Sec. 120.413  Advertisement of relationship with SBA.

    A Lender may refer in its advertising to its participation with 
SBA. The advertising may not:
    (a) State or imply that the Lender, or any of its Borrowers, has or 
will receive preferential treatment from SBA;
    (b) Be false or misleading; or
    (c) Make use of SBA's seal.

Pledging Notes or Transferring Unguaranteed Portion

Sec. 120.420  Financings by Nondepository Lenders.

    (a) A Small Business Lending Company regulated by SBA or a Business 
and Industrial Development Company (``Nondepository Lender'') may 
pledge the notes evidencing SBA guaranteed loans or sell the 
unguaranteed portions of such loans if SBA, in its sole discretion, 
gives its prior written consent. The Lender must be secure financially 
and have a history of compliance with SBA's regulations and any other 
applicable state or Federal statutory and regulatory requirements.
    (b) The Nondepository Lender, SBA, and any third party involved in 
the transaction, as determined by SBA in its sole discretion, must 
enter into a written agreement satisfactory to SBA acknowledging SBA's 
interest as guarantor of the subject loans and accepting that all 
relevant third parties agree to recognize and uphold those interests 
under the Act, this part, and the contractual provisions of SBA's 
blanket Guarantee Agreement. In any such agreement, the parties must 
agree to the following conditions:
    (1) The Nondepository Lender, SBA, or a third party custodian 
agreeable to SBA, will hold all pertinent Loan Instruments, and the 
Nondepository Lender will continue to service the loans after the 
pledge or transfer is made;
    (2) The Nondepository Lender must continue to retain an economic 
risk in and bear the ultimate risk of loss on the unguaranteed 
portions. The Nondepository Lender must demonstrate to SBA's 
satisfaction and in SBA's sole discretion the retention of economic 
risk by:
    (i) In the case of the sale of unguaranteed portions:
    (A) Establishing a sufficient reserve fund at time of sale;
    (B) Retaining a sufficient level of insurance; and/or
    (C) Agreeing to reacquire the unguaranteed portion of a guaranteed 
loan or the note evidencing a guaranteed loan if the loan goes into 
default; or
    (ii) In the case of the pledge of notes, retaining all of the 
economic interest in the unguaranteed portion of any loans which the 
notes evidence.
    (c) The Nondepository Lender may not use SBA guaranteed loans or 
the collateral supporting such loans as collateral for the borrowing of 
any related enterprise or for any other purpose inconsistent with this 
part.

Miscellaneous Provisions

Sec. 120.430  SBA access to Lender files.

    A Lender must allow SBA's authorized representatives, during normal 
business hours, access to its files to review, inspect and copy all 
records and documents relating to SBA guaranteed loans.

Sec. 120.431  Suspension and revocation of eligibility to participate.

    SBA may suspend or revoke the eligibility of a Lender to 
participate in the 7(a) program because of a violation of SBA 
regulations, a breach of any agreement with SBA, a change of 
circumstance resulting in the Lender's inability to meet operational 
requirements, or a failure to engage in prudent lending practices. 
Proceedings for such purposes will be conducted in accordance with the 
provisions of part 134 of this chapter. A suspension or revocation will 
not invalidate a guarantee previously provided by SBA.

Certified Lenders Program (CLP)

Sec. 120.440  What is the Certified Lenders Program?

    Under the Certified Lenders Program (CLP), designated Lenders 
process, close, and service, and may liquidate, SBA guaranteed loans. 
SBA gives priority to applications and servicing actions submitted by 
Lenders under this program. All other rules in this part 120 relating 
to the operations of Lenders apply to CLP Lenders.

Sec. 120.441  How does a Lender become a CLP Lender?

    (a) An SBA field office may nominate a Lender or a Lender may 
request a field office to consider it for CLP status. SBA district 
directors may approve and renew a Lender's CLP status. The district 
director will consider whether the Lender:
    (1) Has the ability to process, close, service and liquidate loans; 
and
    (2) Has a satisfactory performance history with SBA, including the 
submission of complete and accurate loan guarantee application 
packages;
    (3) Has an acceptable SBA purchase rate; and
    (4) Has shown the ability to work well with the local SBA office.
    (b) If the district director does not approve a request for CLP 
status, the Lender may appeal to the AA/FA, whose decision will be 
final. If SBA grants CLP status, it applies only in the field office 
that approved the CLP designation. A CLP Lender must execute a 
Supplemental Guarantee Agreement that will specify a term not to exceed 
two years. 

[[Page 64384]]

Sec. 120.442  Suspension or revocation of CLP status.

    The AA/FA may suspend or revoke CLP status upon written notice 
providing the reasons at least 10 business days prior to the effective 
date of the suspension or revocation. Reasons for suspension or 
revocation may include a loan performance record unacceptable to SBA, 
failure to make the required number of loans under the expedited 
procedures,or violations of applicable statutes, regulations or 
published SBA policies and procedures. A CLP Lender may appeal the 
suspension or revocation made under this section under procedures found 
in part 134 of this chapter. The action of the AA/FA shall remain in 
effect pending resolution of the appeal.

Preferred Lenders Program (PLP)

Sec. 120.450  What is the Preferred Lenders Program?

    Under the Preferred Lenders Program (PLP), designated Lenders 
process, close, service, and liquidate SBA guaranteed loans with 
reduced requirements for documentation to and prior approval by SBA.

Sec. 120.451  How does a Lender become a PLP Lender?

    (a) An SBA field office serving the area where a CLP Lender's 
office is located can nominate a CLP Lender or a CLP Lender can request 
a field office to consider it for PLP status. The SBA field office will 
forward its recommendation to an SBA centralized loan processing center 
which will submit its recommendation and supporting documentation to 
the AA/FA for final decision.
    (b) In making its decision, SBA will consider whether the CLP 
Lender:
    (1) Has the required ability to process, close, service and 
liquidate loans; and
    (2) Has the ability to develop and analyze complete loan packages; 
and
    (3) Has a satisfactory performance history with SBA.
    (c) If the Lender is approved, the AA/FA will designate the area in 
which it can make PLP loans.
    (d) Before it can operate as a PLP Lender, the approved CLP Lender 
must execute a Supplemental Loan Guarantee Agreement, which will 
specify a term not to exceed two years.
    (e) When a PLP's Supplemental Loan Guarantee Agreement expires, SBA 
may recertify it as a PLP Lender for an additional term not to exceed 
two years. Prior to recertification, SBA will review a PLP Lender's 
loans, policies and procedures. The recertification decision of the AA/
FA is final.
    (f) A PLP Lender may request an expansion of the territory in which 
it can process PLP loans by submitting its request to a loan processing 
center. The center shall obtain the recommendation of each SBA office 
in the area into which the PLP Lender would like to expand its PLP 
operations. The center shall forward the recommendations to the AA/FA 
for final decision. If a PLP Lender is not already a CLP Lender in a 
territory into which it seeks to expand its PLP status, it will 
automatically obtain CLP status in the territory without approval from 
the District Office when it is granted its extension of PLP status into 
that territory .

Sec. 120.452  What are the requirements of PLP loan processing?

    (a) Subparts A and B of this part govern the making of PLP loans, 
except for the following:
    (1) Certain types of businesses, loans, and loan programs are not 
eligible for PLP, as detailed in published SBA policy and procedures.
    (2) A Lender may not use the PLP procedure to reduce its existing 
credit exposure for any Borrower.
    (3) SBA will guarantee no more than the specified statutory 
percentage of any PLP loan. (b) A PLP Lender notifies SBA of its 
approval of a PLP loan by submitting to SBA's loan processing center 
appropriate documentation signed by two of the PLP's authorized 
representatives. SBA will attach the SBA guarantee and notify the PLP 
Lender of the SBA Loan Number (if it does not identify a problem with 
eligibility, and funds are available).
    (c) The PLP Lender is responsible for the correctness of all PLP 
loan decisions regarding eligibility (including size), 
creditworthiness, loan closing, and compliance with all requirements of 
law or SBA regulations.

Sec. 120.453  What are the requirements of PLP loan servicing and 
liquidation?

    The PLP Lender must service and liquidate its SBA guaranteed loan 
portfolio (including its non-PLP loans) using generally accepted 
commercial banking standards employed by prudent lenders. The PLP 
Lender must liquidate any defaulted SBA guaranteed loan in its 
portfolio unless SBA advises in writing that SBA will liquidate the 
loan. The PLP Lender must submit a liquidation plan to SBA prior to 
commencing liquidation action, if possible. The PLP Lender may take any 
necessary servicing action, or liquidation action consistent with a 
plan, for any SBA guaranteed loan in its portfolio, except it may not:
    (a) Take any action that confers a Preference on the Lender;
    (b) Accept a compromise settlement without prior written SBA 
consent; and
    (c) Sell or pledge more than 90 percent of a PLP loan.

Sec. 120.454  PLP performance review.

    SBA may review the performance of a PLP Lender. SBA may charge the 
PLP Lender a fee for this review.

Sec. 120.455  Suspension or revocation of PLP status.

    The AA/FA may suspend or revoke PLP status upon written notice 
providing the reasons at least 10 business days prior to the effective 
date of the suspension or revocation. Reasons for suspension or 
revocation may include loan performance unacceptable to SBA, failure to 
make the required number of loans under the expedited procedures, or 
violations of applicable statutes, regulations or published SBA 
policies and procedures. A PLP Lender may appeal the suspension or 
revocation made under this section under procedures found in Part 134 
of this chapter. The action of the AA/FA shall remain in effect pending 
resolution of the appeal.

Small Business Lending Companies (SBLC)

Sec. 120.470  What is an SBLC?

    A Small Business Lending Company (SBLC) is a nondepository lending 
institution engaged solely in the making of loans under section 7(a) 
(except section 7(a)(13)) of the Act in participation with SBA. SBA 
supervises, examines, and regulates SBLCs. An SBLC is subject to all 
applicable SBA regulations, including those governing Lenders. This 
program has been closed to new licenses since January, l982. In 
addition to complying with Sec. 120.400-120.413, an SBLC must meet the 
following requirements:
    (a) Business structure. It must be a corporation (profit or non-
profit).
    (b) Written agreement. It must sign a written agreement with SBA 
with terms satisfactory to SBA.
    (c) Capital structure. It must have unencumbered paid-in capital 
and paid-in surplus of at least $1,000,000, or ten percent of the 
aggregate of its share of all outstanding loans, whichever shall be 
more.
    (d) Capital impairment. It must avoid capital impairment at all 
times. Impairment exists if the retained earnings deficit of an SBLC 
exceeds 50 percent of combined paid-in capital and paid-in-surplus, 
excluding treasury stock. An SBLC must give SBA prompt written notice 
of any capital impairment 

[[Page 64385]]
within 30 calendar days of the month-end financial report that first 
reflects the impairment. Until the impairment is cured, an SBLC may not 
present any loans to SBA for guarantee.
    (e) Issuance of securities. Without prior written SBA approval, it 
must not issue any securities (including stock options and debt 
securities) except stock dividends and common stock issued for cash or 
direct obligations of, or obligations fully guaranteed as to principal 
and interest by, the United States.
    (f) Voluntary capital reduction. Without prior written SBA 
approval, it must not voluntarily reduce its capital, or purchase and 
hold more than 2 percent of any class or combination of classes of its 
stock.
    (g) Reserves for losses. It must maintain a reserve in the amount 
of anticipated losses on loans and receivables.
    (h) Internal control. It must adopt a plan designed to safeguard 
its funds and other assets, to assure the reliability of its personnel, 
and to maintain the accuracy of its financial data.
    (i) Dual control. It must maintain dual control over disbursement 
of funds and withdrawal of securities. An SBLC may disburse funds only 
by checks or wire transfers authorized by signatures of two or more 
officers covered by the SBLC's fidelity bond, except that checks in an 
amount of $1,000 or less may be signed by one bonded officer. There 
must be two or more bonded officers, or one bonded officer and a bonded 
employee to open safe deposit boxes or withdraw securities from 
safekeeping. The SBLC shall furnish to each depository bank, custodian, 
or entity providing safe deposit boxes a certified copy of the 
resolution implementing these control procedures.
    (j) Fidelity insurance. It must maintain a Brokers Blanket Bond, 
Standard Form 14, or Finance Companies Blanket Bond, Standard Form 15, 
or such other form of coverage as SBA may approve, in a minimum amount 
of $25,000 executed by a surety holding a Certificate of authority from 
the Secretary of the Treasury pursuant to 6 U.S.C. 6-13.
    (k) Common control. It must not control, be controlled by, or under 
common control with, another SBLC. Without prior written SBA approval, 
an Associate of one SBLC shall not be an Associate of another SBLC or 
of any entity which directly or indirectly controls or is under common 
control with another SBLC.
    (l) Management services. An SBLC must employ full time professional 
management.
    (m) Borrowed funds. Without SBA's prior written approval, it must 
not be capitalized with borrowed funds. Shareholders owning 10 percent 
or more of any class of its stock shall not use borrowed funds to 
purchase the stock unless the net worth of the shareholders is at least 
twice the amount borrowed or unless the shareholders receive SBA's 
prior written approval for a lower ratio.

Sec. 120.471  Records.

    Each SBLC must comply with the following requirements concerning 
records:
    (a) Maintenance of Records. It must maintain accurate and current 
financial records, including books of account, minutes of stockholder, 
directors, or executive committee meetings, and all documents and 
supporting materials relating to the SBLC's transactions at its 
principal business office. Securities held by a custodian pursuant to a 
written agreement shall be exempt from this requirement.
    (b) Preservation of records.
    (1) It must preserve in a manner permitting immediate retrieval the 
following documentation for the financial statements required by 
Sec. 120.472 (and of the accompanying independent public accountant's 
opinion), for the following specified periods:
    (i) Preserve permanently:
    (A) All general and subsidiary ledgers (or other records) 
reflecting asset, liability, capital stock and surplus, income, and 
expense accounts;
    (B) All general and special journals (or other records forming the 
basis for entries in such ledgers); and
    (C) The corporate charter, bylaws, application for determination of 
eligibility to participate with SBA, and all minutes books, capital 
stock Certificates or stubs, stock ledgers, and stock transfer 
registers;
    (ii) Preserve for at least 6 years following final disposition of 
the related loan:
    (A) All applications for financing;
    (B) Lending, participation, and escrow agreements;
    (C) Financing instruments; and
    (D) All other documents and supporting material relating to such 
loans, including correspondence.
    (2) Records and other documents referred to in this section may be 
preserved electronically or by reproduction if the SBLC makes and 
stores duplicate originals separately from the original for the time 
required.

Sec. 120.472  Reports to SBA.

    An SBLC must submit the following to the AA/FA:
    (a) An audited financial statement prepared by an independent 
public accountant within three months after the close of each fiscal 
year, and interim financial reports when requested by SBA;
    (b) A report of any legal or administrative proceeding, by or 
against the SBLC, or against an officer, director, or employee of the 
SBLC for an alleged breach of official duty, within 10 days after 
initiating or learning of the proceeding, as well as notification of 
the terms of any settlement or final judgment (in addition to any 
reporting under applicable SBA Forms);
    (c) Copies of any report furnished to its stockholders (including 
any prospectus, letter, or other publication concerning the financial 
operations of the SBLC);
    (d) A summary of any changes in the SBLC's organization or 
financing, such as:
    (1) Any change in its name, address or telephone number;
    (2) Any change in its charter, bylaws, or its officers or directors 
(to be accompanied by a statement of personal history on an approved 
SBA form);
    (3) Any changes in capitalization not otherwise required by 
Sec. 120.470 to be reported to SBA;
    (4) Any changes affecting the eligibility of the SBLC to continue 
to participate as an SBLC; and
    (5) Notice of a pledge of stock within 30 calendar days of the 
transaction if 10 percent or more of the stock is pledged by any person 
(or group of persons acting in concert) as collateral for indebtedness, 
and such pledge does not involve a transfer for which prior written 
approval of SBA is required under Sec. 120.473; and
    (e) Such other reports as SBA may require from time to time by 
written directive.

Sec. 120.473  Change of ownership or control.

    (a) Any change of ownership or control without prior written 
approval of SBA is prohibited. An SBLC must request approval of any 
such change from the AA/FA. Pending the approval, the SBLC may not 
register the proposed new owners on its transfer books nor permit them 
to participate in any manner in the conduct of the SBLC's affairs. 
Change of ownership or control shall include:
    (1) Any transfer of 10 percent or more of any class of the SBLC's 
stock, and any agreement providing for such transfer;
    (2) Any transfer that could result in the beneficial ownership by 
any person or group of persons acting in concert of 10 percent or more 
of any class of its 

[[Page 64386]]
stock, and any agreement providing for such transfer;
    (3) Any merger, consolidation, or reorganization; or
    (4) Any other transaction or agreement that transfers control of 
the SBLC.
    (b) If transfer of ownership or control is subject to the approval 
of any State or Federal chartering, licensing, or other regulatory 
authority, copies of any documents filed with such authority shall, at 
the same time, be transmitted to the SBA District Office serving the 
area in which the SBLC's principal office is located.

Sec. 120.474  Prohibited financing.

    An SBLC may not make a loan to a small business that has received 
financing (or a commitment for financing) from an SBIC that is an 
Associate of the SBLC.

Sec. 120.475  Suspension or revocation.

    SBA may revoke or suspend an SBLC for a violation of law, these 
regulations, or any agreement with SBA. An appeal can be made following 
the procedures set forth in part 134 of this chapter.

Subpart E--Loan Administration

Sec. 120.500  General.

    This subpart outlines the general loan administration policies 
applicable to SBA financial assistance.

Servicing

Sec. 120.510  Servicing direct and immediate participation loans.

    SBA services the direct loans that it makes. Generally, the Lender 
services immediate participation loans that it makes and in which SBA 
participates.

Sec. 120.511  Servicing guaranteed loans.

    The Lender services guaranteed loans, holds the Loan Instruments 
and receives the Borrower's payments of principal and interest.

Sec. 120.512  Who services the loan after SBA honors its guarantee?

    Generally, after SBA honors its guarantee, the Lender must continue 
to hold the Loan Instruments and service the loan, and the Lender must 
execute a Certificate of interest showing SBA's percentage of the loan. 
If SBA elects to service the loan, the Lender must assign the Loan 
Instruments to SBA.

Sec. 120.513  What servicing actions require the prior written consent 
of the SBA?

    SBA must give its prior written consent before the Lender takes any 
of the following actions:
    (a) Alter substantially the terms or conditions of any Loan 
Instrument (for example, any increase in the principal amount or change 
in the interest rate, or conferring a Preference on the Lender);
    (b) Release collateral having a cumulative value in excess of 20 
percent of the original loan amount;
    (c) Accelerate the maturity of the note;
    (d) Sue upon any Loan Instrument;
    (e) Compromise or waive any claim against any Borrower, guarantor, 
obligor or standby creditor arising out of any Loan Instrument; or
    (f) Increase the amount of any prior lien held by the Lender on the 
collateral securing the loan.

SBA'S Purchase of a Guaranteed Portion

Sec. 120.520  When does SBA honor its guarantee?

    (a) SBA, in its sole discretion, may purchase a guaranteed portion 
of a loan at any time. A Lender may demand in writing that SBA honor 
its guarantee if the Borrower is in default on any installment for more 
than 60 calendar days (or less if SBA agrees) and the default has not 
been cured. If a Borrower cures a default before a Lender requests 
purchase by SBA, the Lender's right to request purchase on that default 
lapses.
    (b) When SBA purchases the guaranteed portion, it does not waive 
any of its rights to recover money paid on the guaranty, based upon the 
Lender's negligence, misconduct, or violation of this part, including 
the those actions listed in Sec. 120.524(a), the guarantee agreement or 
the Loan Instruments.

Sec. 120.521  What interest rate applies after SBA purchases its 
guaranteed portion?

    When SBA honors its guarantee for a fixed interest rate loan, the 
rate of interest remains as stated in the note. On loans with a 
fluctuating interest rate, the interest rate that the Borrower owes 
will be at the rate in effect at the time of the earliest uncured 
default (where a default has occurred), or the rate in effect at the 
time of purchase (where no default has occurred).

Sec. 120.522  How much accrued interest does SBA pay to the Lender or 
Registered Holder when SBA purchases the guaranteed portion?

    (a) Rate of interest. If SBA purchases the guaranteed portion from 
a Lender or from a Registered Holder (if sold in the Secondary market), 
it will pay accrued interest at:
    (1) The rate in the note if it is a fixed rate loan; or
    (2) The rate in effect on the date of the earliest uncured default 
(if a default has occurred) or of SBA's purchase (if there has been no 
default).
    (b) Payment to Lender. SBA calculates the accrued interest due a 
Lender from the date of the Borrower's earliest uncured default, but 
interest may not accrue for more than 120 days (plus any deferment 
period which SBA had approved). In addition, if a Lender requests SBA 
to purchase within 120 days of the earliest uncured default, SBA will 
pay accrued interest to the Lender for any SBA time spent in making 
payment in excess of 120 days, plus interest from the last paid-to date 
to the earliest uncured default date.
    (c) Payment to Registered Holder. SBA will pay a Registered Holder 
all accrued interest up to the date of payment.
    (d) Extension of the 120 day period. Before the 120 days expire, 
the SBA field office may extend the period if the Lender and SBA agree 
that the Borrower can cure the default within a reasonable and definite 
period of time or that the benefits from doing so otherwise will exceed 
the costs of SBA paying additional interest. If the 120 days have 
passed, only SBA's AA/FA or his designee can extend the period.

Sec. 120.523  What is the ``earliest uncured default''?

    Default occurs when a Borrower violates any provision in the Loan 
Instruments. The default date is the date the violation occurred. The 
``earliest uncured default'' is the earliest violation not yet cured. 
If the violation is the failure by a Borrower to pay a regular 
installment of principal and interest when due, payments made by the 
Borrower before a Lender makes its request to SBA to purchase are 
applied to the earliest uncured default. If the installment is paid in 
full, the earliest uncured default date will advance to the next unpaid 
installment date. If a Borrower makes any payment after a Lender makes 
its request to SBA to purchase, the earliest uncured default date does 
not change because the Lender has already exercised its right to 
request purchase.

Sec. 120.524  When is SBA released from liability on its guarantee?

    (a) SBA is released from liability on a loan guarantee (in whole or 
in part, within SBA's exclusive discretion), if any of the events below 
occur:
    (1) The Lender has failed to comply with any of the provisions of 
these regulations, the Loan Guarantee Agreement, or the Authorization;
    (2) The Lender has failed to make, close, service, or liquidate a 
loan in a prudent manner;
    (3) The Lender's improper action or inaction has placed SBA at 
risk; 

[[Page 64387]]

    (4) The Lender has failed to disclose a material fact to SBA 
regarding a guaranteed loan in a timely manner;
    (5) The Lender has misrepresented a material fact to SBA regarding 
a guaranteed loan;
    (6) SBA has received a written request from the Lender to terminate 
the guarantee;
    (7) The Lender has not paid the guarantee fee within the period 
required under SBA rules and regulations;
    (8) The Lender has failed to request that SBA purchase a guarantee 
within 120 days after maturity of the loan;
    (9) The Lender has failed to use required SBA forms or exact 
electronic copies; or
    (10) The Borrower has paid the loan in full.
    (b) If SBA determines, after purchasing its guaranteed portion of a 
loan, that any of the events set forth in paragraph (a) of this section 
occurred in connection with that loan, SBA is entitled to recover any 
money paid on the guaranty plus interest from the Lender responsible 
for those events.
    (c) If the Lender's loan documentation indicates that one or more 
of the events in paragraph (a) of this section may have occurred, SBA 
may undertake such investigation as it deems necessary to determine 
whether to honor or deny the guarantee, and may withhold a decision on 
whether to honor the guarantee until the completion of such 
investigation.
    (d) Any information provided to SBA prior to Lender's request for 
SBA to honor its guarantee shall not prejudice SBA's right to deny 
liability for a guarantee if one or more of the events listed in 
paragraph (a) of this section occur.
    (e) Unless SBA provides written notice to the contrary, the Lender 
remains responsible for all loan servicing and liquidation actions 
until SBA honors its guarantee in full.

Deferment, Extension of Maturity and Loan Moratorium

Sec. 120.530  Deferment of payment.

    SBA may agree to defer payments for a stated period of time, and 
use such other methods as it considers necessary and appropriate to 
help in the successful establishment and operation of the Borrower. 
This policy applies to all business loan programs, including 504 loans.

Sec. 120.531  Extension of maturity.

    SBA may agree to extend the maturity of a loan for up to 10 years 
beyond its original maturity if the extension will aid in the orderly 
repayment of the loan.

Sec. 120.532  What is a loan Moratorium?

    SBA may assume a Borrower's obligation to repay principal and 
interest on a loan by agreeing to make the payments to the 
Participating Lender on behalf of the Borrower. This relief is called a 
``Moratorium.''

Sec. 120.533  When will SBA grant a Moratorium?

    SBA normally will grant a Moratorium if:
    (a) Without it, the small business will become or remain insolvent;
    (b) With it, the small business will become or remain viable;
    (c) Alternative remedies, such as a deferment, are not available;
    (d) The Lender has already granted deferments equal to at least six 
(6) monthly installments, and the Lender and SBA agree that the 
deferments have been beneficial;
    (e) The Borrower, Lender, obligors, and guarantors execute a 
``Moratorium Agreement'' giving SBA absolute discretion to discontinue 
making the payments at any time;
    (f) The Borrower (and co-Borrowers) execute a demand note to repay 
SBA's Moratorium advances;
    (g) All guarantors or other obligors of the guaranteed loan execute 
guarantee agreements and any other instruments required by SBA to 
protect its interests under the demand note;
    (h) The Borrower and other obligors provide such security as SBA 
considers necessary or appropriate; and
    (i) The collateral securing the demand note includes at least the 
collateral securing the guaranteed loan, and the collateral position 
for the demand note is subject only to the lien position on the 
guaranteed loan.

Sec. 120.534  How long can a Moratorium continue?

    Generally, SBA will continue a Moratorium for six months, although 
SBA may authorize an initial Moratorium for up to one year. SBA may 
continue a Moratorium for additional periods (to a maximum total of 
five (5) years) only if the Borrower can demonstrate the eventual 
ability to repay from earnings the original note and the demand note.

Sec. 120.535  What are the repayment terms of a Moratorium?

    (a) The interest rate for the demand note is the same as for the 
guaranteed loan. SBA advances to a Participating Lender during the 
Moratorium period accrue interest from the date of each disbursement.
    (b) SBA has the right to demand payment at any time. If not 
previously demanded, payment in full will be due immediately after the 
Borrower has fully paid the guaranteed loan.
    (c) SBA may demand payment in full under the demand note or SBA may 
accept a repayment schedule. If the loan has been paid, the frequency 
and amount of the repayments must be at least equal to the amount and 
frequency that were due under the loan.
    (d) SBA will apply repayments first to accrued interest and then to 
principal.
    (e) A loan may be extended beyond the statutory limit for a period 
of time corresponding to the time of the Moratorium.

Liquidation of Collateral

Sec. 120.540  What are SBA's policies concerning liquidation of 
collateral?

    (a) Liquidation policy. SBA or the Lender may liquidate collateral 
securing a loan if there is no reasonable prospect that the Borrower or 
a guarantor (other than SBA) can repay the loan within a reasonable 
period.
    (b) Sale and conversion of loans. Without the consent of the 
Borrower, SBA may:
    (1) Sell a direct loan;
    (2) Convert a guaranteed or immediate participation loan to a 
direct loan; or
    (3) Convert an immediate participation loan to a guaranteed loan or 
a loan owned solely by the Lender.
    (c) Dispose of collateral and assets acquired through foreclosure 
or conveyance. SBA or the Lender may sell real and personal property 
(including contracts and claims) pledged to secure a loan that is in 
default in accordance with the provisions of the related security 
instrument (see Sec. 120.550 for Homestead Protection for Farmers).
    (1) Competitive bids or negotiated sale. Generally, SBA or the 
Lender will offer loan collateral and acquired assets for public sale 
through competitive bids at an auction or a sealed bid sale, although a 
negotiated sale may be utilized under appropriate circumstances.
    (2) Lease of acquired property. Normally, neither SBA nor a Lender 
will rent or lease acquired property or grant options to purchase. SBA 
will consider proposals for a lease if it appears a property cannot be 
sold advantageously and it is in the government's interest, but SBA may 
terminate the lease upon receipt of a favorable purchase offer.
    (d) Recoveries and security interests shared. SBA and the 
Participating Lender will share pro rata (in accordance with their 
respective interests in a loan) all loan payments or recoveries, all 
reasonable expenses 

[[Page 64388]]
(including advances for the care, preservation, and maintenance of 
collateral securing the loan), and any security interest or guarantee 
(excluding SBA's guarantee) which the Lender or SBA may hold or receive 
in connection with a loan.
    (e) Guarantors. Guarantors of financial assistance have no rights 
of contribution against SBA on an SBA guaranteed or direct loan. SBA is 
not deemed to be a co-guarantor with any other guarantors.

Homestead Protection for Farmers

Sec. 120.550  What is homestead protection for farmers?

    SBA may lease to a farmer-Borrower the farm residence occupied by 
the Borrower and a reasonable amount of adjoining property (no more 
than 10 acres and seven farm buildings), if they were acquired by SBA 
as a result of a defaulted farm loan made or guaranteed by SBA (see the 
Consolidated Farm and Rural Development Act, 7 U.S.C. 1921, for 
qualifying loan purposes).

Sec. 120.551  Who is eligible for homestead protection?

    SBA must notify the Borrower in possession of the availability of 
these homestead protection rights within 30 days after SBA acquires the 
property. A farmer-Borrower must:
    (a) Apply for the homestead occupancy to the SBA field office which 
serviced the loan within 90 days after SBA acquires the property;
    (b) Provide evidence that the farm produces farm income reasonable 
for the area and economic conditions;
    (c) Show that at least 60 percent of Borrower's gross annual income 
came from farm or ranch operations in at least any two out of the last 
six calendar years;
    (d) Have resided on the property during the previous six years; and
    (e) Be personally liable for the debt.

Sec. 120.552  Lease.

    If approved, the applicant must personally occupy the residence 
during the term of the lease and pay a reasonable rent to SBA. The 
lease shall be for a period not to exceed 5 years, renewable for up to 
another 5 years. During or at the end of the lease period, the lessee 
has a right of first refusal to reacquire the homestead property under 
terms and conditions no less favorable than those offered to any other 
purchaser.

Sec. 120.553  Appeal.

    If the application is denied, the Borrower may appeal the decision 
to the Regional Administrator in the region in which the field office 
which denied the application is located. Until the conclusion of any 
appeal, the Borrower may retain possession of the homestead property. 
If there is a conflict between state law and this section, state law 
prevails.

Subpart F--Secondary Market

Sec. 120.600  What is the SBA Secondary Market?

    The SBA secondary market (``Secondary Market'') consists of the 
sale of Certificates, representing either the entire guaranteed portion 
of an individual 7(a) guaranteed loan or an undivided interest in a 
Pool consisting of the SBA guaranteed portions of a number of 7(a) 
guaranteed loans. By the terms of the Certificate, SBA guarantees a 
Registered Holder timely payment of principal and interest to which the 
Registered Holder is entitled from the loan or loans underlying the 
Certificate. Transactions involving interests in Pools or the sale of 
individual guaranteed portions are governed by the contracts entered 
into by the parties, SBA's Secondary Market Program Guide, and this 
subpart. See sections 5 (f), (g) and (h) of the Small Business Act (15 
U.S.C. 634 (f), (g) and (h)).

Sec. 120.601  Definitions.

    The definitions in this section apply throughout this subpart.
    (a) Certificate is the document the FTA issues representing a 
beneficial fractional interest in a Pool (Pool Certificate), or an 
undivided interest in the entire guaranteed portion of an individual 
7(a) guaranteed loan that is sold separately.
    (b) Current means that no repayment from a Borrower to a Lender is 
over 29 days late measured from the due date of the payment on the 
records of the FTA's central registry (Pools) or the entity servicing 
the loan (individual guaranteed portion).
    (c) FTA is the SBA's fiscal and transfer agent.
    (d) Note Rate is the interest rate on the Borrower's note.
    (e) Net Rate means the interest rate on an individual guaranteed 
portion in a Pool.
    (f) Payment date is the date that the FTA deposits checks in the 
U.S. mail. SBA may change the date or method of payment by publishing a 
document in the Federal Register.
    (g) Pool is an aggregation of SBA guaranteed portions of loans made 
by Lenders.
    (h) Pool Assembler is a financial institution that:
    (1) Organizes and packages a Pool by acquiring the SBA guaranteed 
portions of loans from Lenders;
    (2) Resells fractional interests in the Pool to Registered Holders; 
and
    (3) Directs the FTA to issue Certificates.
    (i) Pool Rate means the interest rate on a Certificate.
    (j) Registered Holder is the Certificate owner listed in FTA's 
records.

Certificates

Sec. 120.610  Description of Certificates.

    (a) General form and content. Each Certificate must be registered 
with the FTA (no bearer Certificates). SBA must approve the terms of 
the Certificate.
    (b) Face amount of Pool Certificate. The face amount of a Pool 
Certificate cannot be less than a specified minimum amount and must be 
in increments which SBA may specify (except for one Certificate in each 
Pool). SBA may change these requirements by issuing a document in the 
Federal Register after analyzing market conditions and program 
experience.
    (c) Payment Terms for Pool Certificates. Principal installments and 
interest payments are based on the unpaid principal balance of the 
portion of the Pool represented by a Pool Certificate. All prepayments 
on loans in the Pool must be passed through to the Registered Holders 
on the payment date.
    (d) Payment Terms for Certificates which represent individual 
guaranteed portions. Principal installments and interest payments are 
based on the unpaid principal balance of the entire SBA guaranteed 
portion of the loan. The Certificate must provide for a pro rata pass 
through to the Registered Holder of payments which the FTA receives 
from a Lender or any entity servicing the loan.

Sec. 120.611  Description of Pools backing Pool Certificates.

    (a) Pool characteristics. (1) When the FTA issues a Pool 
Certificate, each Pool must have:
    (i) A minimum number of guaranteed portions of loans;
    (ii) A minimum aggregate principal balance of the guaranteed 
portions;
    (iii) A maximum percentage of the Pool which an individual 
guaranteed portion may constitute;
    (iv) A maximum allowable difference between the highest and lowest 
note interest rates;
    (v) A maximum allowable difference between the remaining terms to 
maturity of the loans in the Pool; and
    (vi) A minimum weighted average maturity at Pool formation.
    (2) SBA may adjust the Pool characteristics periodically based upon 

[[Page 64389]]
program experience and market conditions.
    (b) Interest rate on Pool Certificate. The interest rate on a pool 
Certificate must be equal to the lowest net rate on any individual 
guaranteed portion in the pool.
    (c) Redemption of Certificate. The FTA and SBA may redeem a pool 
Certificate because of prepayment or default of all loans constituting 
the pool.

Sec. 120.612  What loans are eligible to back Certificates?

    (a) Pool Certificates are backed by the SBA guaranteed portions of 
loans comprising the Pool. An individual Certificate is backed by the 
entire SBA guaranteed portion of a single loan. Each such loan must:
    (1) Be current as of the date the Pool is formed or the individual 
loan is initially sold in the Secondary Market;
    (2) Be guaranteed under the Act; and
    (3) Meet such other standards as SBA may determine to be necessary 
for the successful operation of the pooling program.
    (b) With respect to any Pool, the loans must meet the SBA standards 
in effect at the time the Pool is formed.

Sec. 120.613  What is a Secondary Participation Guarantee Agreement?

    When a Lender wants to sell the guaranteed portion of a loan, it 
enters into a Secondary Participation Guarantee Agreement (``SPGA'') 
with SBA and the purchaser of the guaranteed portion. The terms of sale 
between the Lender and the purchaser cannot require the Lender or SBA 
to repurchase except in accordance with the terms of the SPGA. Before 
execution of the agreement, the Lender must:
    (a) Documents. Submit to SBA a copy of the SPGA, the note, and such 
other documents as SBA may require;
    (b) Full Disbursement. Disburse to the Borrower the full amount of 
the loan; and
    (c) Guarantee Fees Paid. Pay SBA all guarantee fees in full.

The SBA Guarantee of a Certificate

Sec. 120.620  The SBA guarantee of a Pool Certificate.

    (a) Extent of Guarantee. SBA guarantees to a Registered Holder the 
timely payment of principal and interest installments and any 
prepayment or other recovery of principal on the underlying loans to 
which the Registered Holder is entitled. If the Borrower of a loan in a 
Pool backing the Certificates does not make a required installment 
payment, SBA through the FTA must make advances to maintain the 
schedule of interest and principal payments to the Registered Holders 
until SBA purchases the guaranteed portion.
    (b) SBA guarantee backed by full faith and credit. SBA's guarantee 
of the Pool Certificate is backed by the full faith and credit of the 
United States.

Sec. 120.621  The SBA guarantee of a Certificate representing an 
individual guaranteed portion.

    (a) Extent of SBA guarantee. With respect to individual SBA 
guaranteed portions sold in the Secondary Market, SBA guarantees to 
purchase from the Registered Holder the guaranteed portion for an 
amount equal to the unpaid principal and accrued interest due on the 
guaranteed portion of the note as of the date of SBA's purchase, less 
deductions for applicable fees. As opposed to the SBA guarantee with 
respect to pooled loans, SBA does not guarantee timely payment on 
individual guaranteed portions.
    (b) What triggers the SBA guarantee. SBA's guarantee to the 
Registered Holder may be called upon when:
    (1) The Borrower remains in uncured default for 60 days on payments 
of principal or interest due on the note;
    (2) The Lender fails to send to the FTA payments it received from 
the Borrower; or
    (3) The FTA fails to send to the Registered Holder any payments it 
has received from the Lender.
    (c) Full faith and credit. SBA's guarantee to the Registered Holder 
is unconditional and is backed by the full faith and credit of the 
United States.

Pool Assemblers

Sec. 120.630  Qualifications to be a Pool Assembler.

    (a) Application to become Pool Assembler. The application to become 
a Pool Assembler is available from the AA/FA. In order to qualify as a 
Pool Assembler, an entity must send the application to the AA/FA, with 
an application fee, and certify that it:
    (1) Is regulated by the appropriate agency as defined in section 
3(a)(34)(G) of the Securities Exchange Act of 1934 (15 U.S.C. 
78c(a)(34)(G));
    (2) Meets all financial and other applicable requirements of its 
regulatory authority and the Government Securities Act of l986, as 
amended (Pub. L. 99-571, 100 Stat. 3208);
    (3) Has the financial capability to assemble acceptable and 
eligible guaranteed loan portions in sufficient quantity to support the 
issuance of Pool Certificates; and
    (4) Is in good standing with SBA (as the AA/FA determines), the 
Office of the Comptroller of the Currency (``OCC'') if it is a national 
bank, the Federal Deposit Insurance Corporation if it is not a national 
bank, or the National Association of Securities Dealers.
    (b) Approval by SBA. After SBA approves the application to become a 
Pool Assembler, the entity may submit Pool applications to the FTA.
    (c) Conduct of business by Pool Assembler. An entity continues to 
qualify as a Pool Assembler so long as it:
    (1) Meets the eligibility standards in paragraph (a) of this 
section;
    (2) Conducts its business in accordance with SBA regulations and 
accepted securities or banking industry practices, ethics, and 
standards; and
    (3) Maintains its books and records in accordance with generally 
accepted accounting principles or in accordance with the guidelines of 
the regulatory body governing its activities.

Sec. 120.631  Suspension or termination of eligibility of Pool 
Assembler.

    (a) Suspension or termination. The AA/FA may suspend a Pool 
Assembler from operating in the Secondary Market for up to 18 months or 
terminate its eligibility, if the Pool Assembler (and/or its 
Associates):
    (1) Does not comply with any of the requirements in Sec. 120.630(a) 
and (c);
    (2) Has been indicted or otherwise formally charged with, or 
convicted of, a misdemeanor or felony;
    (3) Has received an adverse final civil judgment that it has 
committed a breach of trust or a violation of a law or regulation 
protecting the integrity of business transactions or relationships;
    (4) Has not formed a Pool for at least 3 years; or
    (5) Is under investigation by its regulating authority for 
activities which may affect its ability to participate in the Secondary 
Market.
    (b) Suspension procedures. The AA/FA shall notify a Pool Assembler 
by certified mail, return receipt requested, of the decision to suspend 
and the reasons therefore at least 10 business days prior to the 
effective date of the suspension. The Pool Assembler may appeal the 
suspension made under this section pursuant to the procedures set forth 
in part 134 of this chapter. The action of the AA/FA shall remain in 
effect pending resolution of the appeal.
    (c) Notice of termination. In order to terminate a Pool Assembler's 
eligibility, the AA/FA must issue an order to show cause why the SBA 
should not terminate the Pool Assembler's participation in the 
Secondary Market. The Pool Assembler may appeal the termination made 
under this section 

[[Page 64390]]
pursuant to procedures set forth in part 134 of this chapter. The 
action of the AA/FA shall remain in effect pending resolution of the 
appeal.

Sale of Certificates

Sec. 120.640  Administration of the Pool and individual guaranteed 
portions.

    (a) FTA responsibility. The FTA has the responsibility to 
administer each Pool or individual guaranteed portion. It shall 
maintain a registry of Registered Holders and other information as SBA 
requires.
    (b) Self-liquidating. Each Pool or individual guaranteed portion in 
the Secondary Market is self-liquidating because of Borrower payments 
or prepayments, redemption by SBA, and/or payments by SBA or the Lender 
after default by the Borrower. There is no substitution of the 
guaranteed portions of existing loans for defaulted loans.
    (c) SBA's right to subrogation. If SBA pays a claim under a 
guarantee with respect to a Certificate issued under this subpart, it 
must be subrogated fully to the rights satisfied by such payment.
    (d) SBA ownership rights not limited. No Federal, State or local 
law can preclude or limit the exercise by SBA of its ownership rights 
in the portions of loans constituting the Pool against which the 
Certificates are issued.

Sec. 120.641  Disclosure to purchasers.

    (a) Information to purchaser. Prior to any sale, the Pool 
Assembler, Registered Holder of a Certificate representing an 
individual guaranteed portion, or any subsequent seller must disclose 
to the purchaser, either orally or in writing, information on the 
terms, conditions, and yield as described in the SBA Secondary Market 
Program Guide.
    (b) Information on transfer document. The seller must provide the 
same information described in paragraph (a) of this section in writing 
on the transfer document when the seller submits it to the FTA. After 
the sale of an individual Certificate, the FTA will provide the 
disclosure information in writing to the purchaser.
    (c) Information in prospectus. If the Registered Holder is a trust, 
investment Pool, mutual fund or other security, it must disclose the 
information in (a) above to investors through a prospectus and other 
promotional material if a Certificate or Pool Certificate is placed 
into or used as the backing for the investment vehicle.

Sec. 120.642  Requirements before the FTA issues Pool Certificates.

    Before the FTA issues any Pool Certificate, the Pool Assembler must 
deliver to it the following documents:
    (a) A properly completed Pool application form;
    (b) Either:
    (1) Certificates evidencing the guaranteed portions comprising the 
Pool; or
    (2) An executed SPGA and related documentation for the loans whose 
guaranteed portions are to be part of the Pool; and
    (c) Any other documentation which SBA may require.

Sec. 120.643  Requirements before the FTA issues the Certificate for an 
individual guaranteed portion.

    (a) FTA issuance of initial Certificate. Before the FTA can issue 
the initial Certificate for a particular guaranteed portion, the 
original seller must provide the following documents to the FTA:
    (1) An executed SPGA;
    (2) A copy of the note representing the guaranteed loan; and
    (3) Any other documentation which SBA may require.
    (b) Review of documentation. SBA may review or require the FTA to 
review any documentation before the FTA issues a Certificate.

Sec. 120.644  Sale of individual SBA guaranteed portion.

    (a) Amount of Certificate. Each Certificate which represents the 
guaranteed portion of a single loan must be for the entire amount of 
the guaranteed portion.
    (b) General rule on transferability of Certificate. Each such 
Certificate is transferable only on the books and records of the FTA or 
SBA.
    (c) Lender cannot purchase guaranteed portion of loan it made. The 
Lender (or its Associate) that made the loan cannot purchase the 
guaranteed portion in the Secondary Market. If a Lender does purchase 
the guaranteed portion of one of its own loans, it shall not have the 
unconditional guarantee of SBA.
    (d) Prepayment or default. The prepayment of the underlying loan or 
a default on such loan will trigger the redemption of the Certificate 
by FTA/SBA in accordance with the procedures prescribed in the SPGA.

Sec. 120.645  Transfers of Certificates.

    (a) General rule. Certificates are transferable. Transfers in the 
Secondary Market must comply with Article 8 of the Uniform Commercial 
Code of the State of New York. The seller must use the detached form of 
assignment (SBA Form 1088), unless the seller and purchaser choose to 
use another form which the SBA approves. The FTA may refuse to issue a 
Certificate until it is satisfied that the documents of transfer are 
complete.
    (b) Transfer on FTA records. In order for the transfer of a 
Certificate to be effective the FTA or SBA must reflect it on their 
records.
    (c) Contents of letter of transmittal accompanying the transfer of 
Certificates. (1) A letter of transmittal must accompany each 
Certificate which a Registered Holder submits to the FTA for transfer. 
The Registered Holder must supply the following information:
    (i) Pool number, if applicable;
    (ii) Certificate number;
    (iii) Name of purchaser of Certificate;
    (iv) Address and tax identification number of the purchaser;
    (v) Name and telephone number of the person handling or 
facilitating the transfer;
    (vi) Instructions for the delivery of the new Certificate.
    (2) With this information, the seller of the Certificate must send 
the fee which the FTA charges for this service. The FTA will supply fee 
information to the seller.
Fiscal and Transfer Agent (FTA)

Sec. 120.650  Registration duties of FTA in Secondary Market.

    The FTA registers all Certificates. This means it issues, transfers 
title to, and redeems them. All financial transactions relating to a 
guaranteed portion of a loan flow through the FTA. The FTA must keep 
the central registry current, using the following information required 
for each registration:
    (a) The Lender that made and sold the loan;
    (b) The interest rate paid by the Borrower to the Lender (including 
whether the rate is fixed or variable);
    (c) The Lender's servicing fee;
    (d) The purchaser;
    (e) The price paid by the purchaser;
    (f) The interest rate paid on the Certificate or Pool Certificate;
    (g) The fees which the FTA charges to register and issue 
Certificates; and
    (h) Any other information which SBA requires.

Sec. 120.651  Claim to FTA by Registered Holder to replace Certificate.

    (a) To replace a Certificate because of loss, theft, destruction, 
mutilation, or defacement, the Registered Holder must:
    (1) Give the FTA information about the Certificate and the facts 
relating to the claim;
    (2) File an indemnity bond acceptable to SBA and the FTA with a 
surety to protect the interests of SBA and the FTA;
    (3) Pay the FTA its fee to replace a Certificate; and 
    
[[Page 64391]]

    (4) Use an affidavit of loss (form available from the FTA) to 
report:
    (i) The name and address of the Registered Holder (and the name and 
capacity of any representative actually filing the claim);
    (ii) The Certificate by Pool number, if applicable;
    (iii) The Certificate number;
    (iv) The original principal amount;
    (v) The name in which the Certificate was registered;
    (vi) Any assignment, endorsement or other writing on the 
Certificate; and
    (vii) A statement of the circumstances of the theft or loss.
    (b) When the FTA receives notice of the theft or loss, it will stop 
any transfer of the Certificate. The Registered Holder must send to the 
FTA all available portions of a mutilated or defaced Certificate. When 
the Registered Holder completes these steps, the FTA will replace the 
Certificate.

Sec. 120.652  FTA fees.

    The FTA may charge reasonable servicing fees, transfer fees, and 
other fees as the SBA and FTA may negotiate under contract.

Suspension or Revocation of Participant in Secondary Market

Sec. 120.660  Suspension or revocation.

    (a) Suspension or revocation of Lender, broker, dealer, or 
Registered Holder for violation of Secondary Market rules and 
regulations. The AA/FA may suspend or revoke the privilege of a Lender, 
broker, dealer, or Registered Holder to sell, purchase, broker, or deal 
in loans or Certificates for:
    (1) Committing a serious violation, in SBA's discretion, of:
    (i) The rules and regulations of the Secondary Market; or
    (ii) Any provisions in the contracts entered into by the parties, 
including SBA Forms 1085, 1086, 1088 and 1454; or
    (2) Knowingly submitting false or fraudulent information to the SBA 
or FTA.
    (b) Additional rules for suspension or revocation of broker or 
dealer. In addition to acting under paragraph (a) of this section, the 
AA/FA may suspend or revoke any broker or dealer from selling or 
otherwise dealing in Certificates in the Secondary Market if:
    (1) Its supervisory agency has revoked or suspended the broker or 
dealer from engaging in the securities business, or is investigating 
the firm or broker for a practice which SBA considers, in its sole 
discretion, to be relevant to the broker's or dealer's fitness to 
participate in the Secondary Market;
    (2) The broker or dealer has been indicted or otherwise formally 
charged with a misdemeanor or felony which bears on its fitness to 
participate in the Secondary Market; or
    (3) A final civil judgment is entered holding that the broker or 
dealer has committed a breach of trust or a violation of any law or 
regulation protecting the integrity of business transactions or 
relationships.
    (c) Notice to suspend or revoke. The AA/FA shall notify the 
affected party in writing, providing the reasons therefore, at least 10 
business days prior to the effective date of the suspension or 
revocation. The affected party may appeal the suspension or revocation 
made under this section pursuant to the procedures set forth in part 
134 of this chapter. The action of the AA/FA shall remain in effect 
pending resolution of the appeal. Revocation shall last a minimum of 5 
years.

Subpart G--Microloan Demonstration Program

Sec. 120.700  What is the Microloan Program?

    (a) The Microloan Demonstration Program assists women, low income 
individuals, minority entrepreneurs, and other small businesses 
(``Microloan Borrowers'') who need smaller amounts of financial 
assistance, but still have limited access to credit. The program has 
been authorized through September 30, 1997.
    (b) Under this program, SBA makes direct and guaranteed loans to 
Intermediaries (as defined below) who use the proceeds to make loans to 
Microloan Borrowers. SBA also may make grants to these Intermediaries 
to be used for marketing, management, and technical assistance to the 
Microloan Borrowers.
    (c) SBA also may make grants to qualified non-profit entities, who 
are not Intermediaries, to provide marketing, management and technical 
assistance to Microloan Borrowers seeking to start or enlarge small 
businesses.
    (d) An Intermediary cannot operate in more than one state unless 
the AA/FA determines that it would be in the best interests of the 
small business community to operate across state lines.

Sec. 120.701  Definitions.

    (a) Deposit account is a demand, time, savings, passbook, or 
similar account maintained with an insured depository institution (not 
including an account evidenced by a Certificate of Deposit).
    (b) Economically Distressed Area is a county or equivalent division 
of local government of a state in which, according to the most recent 
available data from the United States Bureau of the Census, 40 percent 
or more of the residents have an annual income that is at or below the 
poverty level.
    (c) Grant is a Federal award of money, or property in lieu of money 
(including cooperative agreements) to an eligible grantee that must 
account for its use. The term does not include the provision of 
technical assistance, revenue sharing, loans, loan guarantees, interest 
subsidies, insurance, direct appropriations, or any fellowship or other 
lump sum award.
    (d) Insured depository institution has the same meaning as in 
section 3(c) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(c).
    (e) Intermediary is an entity participating in the Microloan 
Demonstration Program which has made and serviced microloans to small 
businesses for at least one year, and which provides marketing, 
management, and technical assistance to its Microloan Borrowers. It may 
be:
    (1) A private, nonprofit community development corporation or other 
entity;
    (2) A consortium of private, nonprofit community development 
corporations or other entities;
    (3) A quasi-governmental economic development entity, other than a 
State, county, municipal government or any agency thereof; or
    (4) An agency of or a non-profit entity established by a Native 
American Tribal Government.
    (f) Microloan is a short-term, fixed interest rate loan of not more 
than $25,000 made by an Intermediary to an eligible small business.
    (g) Non-Federal sources are funds acquired from sources other than 
the Federal Government and may include indirect costs or in-kind 
contributions paid for under non-Federal programs.
    (h) Specialized Intermediary means an Intermediary which maintains 
a portfolio of microloans averaging $7,500 or less.

Sec. 120.702  Are there limits on Intermediaries or loans?

    (a) SBA will not allow a quasi-governmental Intermediary to 
participate in the program unless:
    (1) No otherwise eligible organization applies; or
    (2) SBA determines that participation by a quasi-governmental 
Intermediary is in the public interest.
    (b) In selecting Intermediaries, SBA will give priority to 
Specialized Intermediaries.
    (c) SBA will not loan more than $2.5 million collectively per year 
to the 

[[Page 64392]]
Intermediaries operating in any one State.

Sec. 120.703  How do I apply to become an Intermediary?

    (a) Application Process. SBA periodically will solicit applications 
from prospective Intermediaries in a Program Announcement or Request 
For Proposal informing you:
    (1) Where to obtain an application package;
    (2) The deadline for submitting your application;
    (3) Where to deliver your completed application.
    (b) Documentation in support of your application. Your application 
must include a detailed narrative statement describing:
    (1) The types of businesses which you have assisted in the past and 
those you intend to assist with Microloans;
    (2) The average size of the loans which you have made in the past 
and the average size of your intended Microloans;
    (3) The extent to which you will make loans to small businesses in 
rural areas;
    (4) The geographic area in which you intend to operate, including a 
description of the economic and demographic conditions existing in your 
intended area of operations;
    (5) The availability and cost of obtaining credit for small 
businesses in your area;
    (6) Your experience and qualifications in providing marketing, 
management, and technical assistance to small businesses;
    (7) Any plan you may have to use other technical assistance (such 
as counselors from the Service Corps of Retired Executives) to help 
your microloan borrowers.
    (c) Evaluation. In evaluating applications to become 
Intermediaries, SBA shall select applicants that ensure the appropriate 
availability of Microloans for small businesses in all industry and 
business sectors located in both rural and urban areas.

Sec. 120.704  What is my financial contribution?

    You must contribute from non-Federal sources an amount equal to 15% 
of any loan that you receive from SBA. The contribution may not be 
borrowed.

Sec. 120.705  Microloan Revolving Fund.

    You must establish a Microloan Revolving Fund (``MRF'') in an 
interest-bearing Deposit Account into which you must deposit your 
contributions from non-Federal sources, the proceeds from SBA loans, 
and payments from your Microloan Borrowers. You may only withdraw from 
this account the money needed to establish the Loan Loss Reserve Fund 
(Sec. 120.706), proceeds for each Microloan you make, and any payments 
which you owe to SBA.

Sec. 120.706  Loan Loss Reserve Fund.

    (a) General. You must establish a Loan Loss Reserve Fund (``LLRF'') 
in an interest-bearing Deposit Account. The purpose of the LLRF is to 
account for any shortage in the MRF caused by delinquencies or losses 
on your microloans. You must maintain the LLRF until you have repaid 
all obligations which you owe to SBA.
    (b) Level of Loan Loss Reserve Fund in first year. In your first 
year as an Intermediary, the balance on deposit in the LLRF must equal 
not less than 15% of the total outstanding balance of all notes 
receivable owed by your Microloan Borrowers.
    (c) Level of Loan Loss Reserve Fund in subsequent years. In 
subsequent years as an Intermediary, you must maintain a balance on 
deposit in the LLRF at a level which reflects your loss experience as 
determined by SBA. The maximum amount is 15% of the total outstanding 
balance owed by your Microloan Borrowers.

Sec. 120.707  What are the terms and conditions of my Intermediary SBA 
loan?

    (a) Loan Amount. You, together with your affiliates, cannot borrow 
more than $750,000 in the first year of your participation in this 
program. In subsequent years, your obligations owed to SBA cannot 
exceed an aggregate of $2,500,000.
    (b) Repayment terms. During the first year of your loan, you do not 
have to make any payments, but interest accrues from the date that SBA 
disburses the loan proceeds to you. After that, SBA will determine your 
periodic payments. The loan must be repaid within 10 years.
    (c) Interest rate. If you are a Specialized Intermediary, your 
interest rate is equal to the rate applicable to 5-year obligations of 
the United States Treasury, adjusted to the nearest one-eighth percent, 
less 2 percent; otherwise, your interest rate is equal to the rate 
applicable to 5-year obligations of the United States Treasury, 
adjusted to the nearest one-eighth percent, less 1.25 percent.
    (1) In determining the applicable interest rate, SBA will measure 
the average size of the microloans for each of your sites or offices. 
For purposes of this section, the terms ``office'' or ``site'' shall 
mean a fixed, existing, geographic location established at a specific 
address.
    (2) At the end of your first year of participation in this program, 
SBA determines whether your actual lending practices qualify you as a 
Specialized Intermediary. SBA then applies the applicable interest rate 
retroactively (making adjustments to interest accrued on your loan).
    (3) On the anniversary date of the first year interest rate 
calculation (second and all later years), SBA will determine whether 
your cumulative actual lending practices qualify you as a Specialized 
Intermediary. SBA will apply the applicable rate for that year.
    (d) Collateral. As security for repayment of your SBA loan, you 
must pledge to SBA a first lien position in your MRF, LLRF, and all 
notes receivable from your Microloans.
    (e) Default. If for any reason you are unable to pay SBA when due, 
SBA may accelerate maturity of your loan and demand payment in full. In 
this event, or if you violate this part or the terms of your loan 
agreement, you must surrender possession of all collateral described in 
paragraph (d) of this section to SBA. You are not obligated to pay SBA 
any loss or deficiency which may remain after liquidation of the 
collateral unless the loss was caused by your fraud, negligence, 
violation of any of the ethical requirements of Sec. 120.140, or 
violation of any other provision of this part.
    (f) Fees. SBA does not charge you any fees for a loan under this 
program. You may, however, pay minimal closing costs to third parties, 
such as filing and recording fees.

Sec. 120.708  What conditions apply to my loans to Microloan Borrowers?

    (a) General. You may make Microloans to any small business eligible 
to receive financial assistance under this Part. You may allow your 
Borrower to use loan proceeds only for working capital and acquisition 
of materials, supplies, furniture, fixtures, and equipment. You must 
exercise prudent lending practices because SBA will not review your 
Microloans for creditworthiness.
    (b) Amount and maturity. Generally, you should not loan more than 
$10,000 to any Borrower. You may loan more than $10,000 only if you are 
satisfied that your Borrower is unable to obtain financing on 
comparable terms elsewhere and has good prospects for success. You must 
not loan more than $25,000 to any Borrower, including affiliates. Each 
of your Microloans must be repaid within 6 years.
    (c) Interest rate. (1) The maximum interest rate that you can 
charge your Microloan Borrowers is:

[[Page 64393]]

    (i) On loans of more than $7,500, the interest rate charged on your 
SBA loan, plus 7.75 percentage points;
    (ii) On loans of $7,500 or less, the interest rate charged on your 
SBA loan, plus 8.5 percentage points.
    (2) Until the determination of your interest rate by SBA at the end 
of the first year, you should quote Microloan Borrowers two possible 
interest rates. You may collect interest at the higher rate. After your 
interest rate is established at the end of your first year, the actual 
interest rate for your borrowers' loans will be set and their interest 
payments during the first year adjusted.

Sec. 120.709  What records and reports does SBA require?

    You must operate in accordance with applicable statutes, 
regulations, policy notices, SBA's Standard Operating Procedures 
(SOPs), and the information in your application. You must supply to SBA 
current and accurate information about all operational requirements, 
and maintain records as required by SBA.

Sec. 120.710  How does an Intermediary get a grant to assist Microloan 
Borrowers?

    (a) General. If you receive a loan from SBA, you are eligible to 
receive a grant from SBA equal to 25 percent of the outstanding balance 
of all loans made to you by SBA. You must contribute, solely from non-
Federal sources, an amount equal to 25 percent of the grant, unless you 
make at least 50 percent of your loans to small businesses located in 
or owned by residents of an Economically Distressed Area. If you make 
at least 25 percent of your loans to small businesses located in or 
owned by residents of an Economically Distressed Area, you will be 
eligible to receive an additional grant from SBA equal to 5 percent of 
the outstanding balance of all loans which you have received from SBA 
(with no obligation to contribute additional matching funds). You may 
not borrow your contribution. You may only use grant funds to provide 
your Microloan Borrowers with marketing, management, and technical 
assistance, except that you may use up to 15 percent of the grant funds 
to provide information and technical assistance to prospective 
Microloan Borrowers. You may not contract to have any other person or 
entity provide these services.
    (b) Specialized Intermediary. If you are a Specialized 
Intermediary, you are eligible for an additional grant equal to 5 
percent of the total outstanding balance of all loans which you have 
received from SBA. You are not required to contribute additional 
matching funds. You must use the grant proceeds only for marketing, 
management and technical assistance.
    (c) Determining eligibility. SBA will determine your eligibility 
for a grant under this section separately for each loan-making office 
or site. SBA will measure the average size of your Microloans for each 
site to see if you qualify for the extra 5 percent.

Sec. 120.711  Does SBA provide technical assistance to Intermediaries?

    SBA may procure technical assistance for an Intermediary to improve 
its knowledge, skill, and understanding of microlending by awarding a 
grant to a more experienced Intermediary. SBA may also obtain such 
assistance for prospective Intermediaries in areas of the country that 
are either underserved or not served by an existing Intermediary.

Sec. 120.712  How does a non-Intermediary get a grant?

    (a) Grant procedure for non-Intermediaries. Any nonprofit entity 
that is not an Intermediary may apply to SBA for a grant. To qualify, 
it must submit information regarding its ability to provide marketing, 
management, and technical assistance to Microloan Borrowers. If 
approved, the grant agreement will establish the terms and conditions 
of the grant.
    (b) Number and amounts of grants. In each year of the Microloan 
program, SBA may make no more than 25 grants to non-Intermediaries for 
terms of up to 5 years. A grant may not exceed $125,000.
    (c) Contribution by nonprofit entity. The nonprofit entity must 
contribute an amount equal to 20 percent of the grant. The contribution 
from the nonprofit entity shall come solely from non-Federal sources, 
and may include direct costs or in-kind contributions paid for under 
non-Federal programs.

Sec. 120.713  Does SBA guarantee any loans an Intermediary obtains from 
another source?

    (a) SBA may guarantee not less than 90 percent of no more than 10 
loans by for-profit or non-profit entities (or an alliance of such 
entities) to intermediaries in urban areas and no more than 10 loans by 
such entities to intermediaries in Rural Areas.
    (b) Any loan under this section shall have a term of 10 years. If 
you receive such a loan, you will not need to repay any principal or 
interest during the first year, although the interest will accrue. 
During the second through fifth years, you will pay interest only. 
During the sixth through tenth years you will pay interest and fully 
amortize the principal.
    (c) The interest rate on any loan under this section shall be 
calculated as described in Sec. 120.707.

Subpart H--Development Company Loan Program (504)

Sec. 120.800  What is the purpose of the 504 program?

    As authorized by Congress, SBA has established this program to 
foster economic development, create or preserve job opportunities, an
FR Doc. 95-30327 Business Loan Programs
d 
stimulate growth, expansion, and modernization of small businesses.

Sec. 120.801  How is a 504 Project financed?

    A small business may apply for 504 financing through the CDC 
servicing the area in which the business is located. SBA issues an 
Authorization if it agrees to guarantee part of the funding for a 
Project. Usually, a Project requires interim (construction) financing 
from an interim lender (often the same lender that later provides a 
portion of the permanent financing). Generally, permanent financing of 
the Project consists of a private sector loan in the amount of 50 
percent of the Project costs which is collateralized by a first lien on 
the Project Property, a loan made with the proceeds of a CDC Debenture 
in the amount of 40 percent of the Project costs, collateralized by a 
second lien on the Project Property, and a contribution by the small 
business in the amount of 10 percent of the Project costs. The 
Debenture is guaranteed 100 percent by SBA (with the full faith and 
credit of the United States), and sold to Underwriters who form 
Debenture Pools. Investors purchase interests in Debenture Pools and 
receive Certificates representing ownership of all or part of a 
Debenture Pool. SBA and CDCs use various agents to facilitate the sale 
and service of the Certificates and the orderly flow of funds among the 
parties.

Sec. 120.802  Definitions.

    The following terms have the same meaning wherever they are used in 
this subpart. Defined terms are capitalized wherever they appear.
    Area of Operations is a geographic area in which a CDC conducts its 
activities.
    Associate Development Company (ADC) is an entity approved by SBA to 
assist CDCs to deliver 504 financing.
    Central Servicing Agent (CSA) is an entity that receives and 
disburses funds among the various parties involved in 504 financing 
under a master servicing agent agreement with SBA.
    Certificate is a document issued by SBA or its agent representing 
ownership of all or part of a Debenture Pool.

[[Page 64394]]

    Debenture is an obligation issued by a CDC and guaranteed 100 
percent by SBA, the proceeds of which are used to fund a 504 loan.
    Debenture Pool is an aggregation of Debentures formed by an 
Underwriter.
    Job Opportunity is a full time (or equivalent) permanent job 
created within two years of receipt of 504 funds, or retained in the 
community because of a 504 loan.
    Net Debenture Proceeds are the portion of Debenture proceeds that 
finance eligible Project costs (excluding administrative costs).
    Project is the purchase or lease, and/or improvement or renovation 
of long-term fixed assets by a small business, with 504 financing, for 
use in its business operations.
    Project Property is one or more long-term fixed assets, such as 
land, buildings, machinery, and equipment, acquired or improved by a 
small business, with 504 financing, for use in its business operations.
    Substantial Increase in Unemployment is:
    (1) A reduction of one-third or more in the workforce of a 
relocating small business; or
    (2) An increase in unemployment in a redevelopment area (as 
designated by the Department of Commerce), a Labor Surplus Area 
(designated by the Department of Labor), or in an area which has an 
unemployment rate at least 20 percent higher than the national average.
    Third Party Loan is a loan from a commercial or private lender, 
investor, or Federal (non-SBA), State or local government source 
obtained by the Borrower as part of the Project financing.
    Underwriter is an entity approved by SBA to form Debenture Pools 
and arrange for the sale of Certificates.

Certificaiton Procedures To Become a CDC

Sec. 120.810  Applications for certification as a CDC.

    (a) Applicants for certification as a CDC must apply to the SBA 
District Office serving a proposed Area of Operations. An applicant 
must demonstrate that it satisfies the certification and operating 
criteria in Secs. 120.820-120.829, as well as:
    (1) The need for 504 services (if there is already a CDC in the 
Area of Operations, the applicant must justify the need for another and 
present a plan to avoid duplication or overlap);
    (2) A budget, approved by its Board of Directors; and
    (3) A plan to meet CDC operating requirements (without specializing 
in a particular industry).
    (b) The AA/FA, with the recommendation of each District Office in 
the applicant's proposed Area of Operations, shall make the 
certification decision.

Sec. 120.811  Public notice of CDC certification application.

    (a) As part of the application process, the applicant must publish 
a notice in a general circulation newspaper in the proposed Area of 
Operations, including the name and location of the proposed CDC, its 
purpose and Area of Operations, and the names of its officers and 
directors. The applicant shall send a copy of the notice to SBA. The 
notice shall provide the public at least 30 days to submit written 
comments to the District Office. The SBA shall consider the comments in 
making its decision on the application.
    (b) CDCs serving the proposed Area of Operations shall be directly 
notified and given at least 30 days to comment.

Sec. 120.812  Probationary period for newly certified CDCs.

    (a) Newly certified CDCs will be on probation for a period of two 
years, at the end of which the CDC must petition for:
    (1) Permanent CDC status;
    (2) A single, one-year extension of probation; or
    (3) ADC status.
    (b) SBA shall consider failure to file a petition before the end of 
the probationary period as a withdrawal from the 504 program. If the 
CDC elects ADC status or withdrawal, it must transfer all funded and/or 
approved loans to another CDC, SBA, or another servicer approved by 
SBA.

Requirements for CDC Certification and Operation

Sec. 120.820  CDC non-profit status.

    A CDC must be a non-profit corporation (or limited liability 
company) in good standing. (For-profit CDCs certified by SBA prior to 
January 1, 1987 may retain their certifications.) An SBIC may not 
become a CDC.

Sec. 120.821  CDC Area of Operations.

    A CDC must have a designated Area of Operations, specified by the 
CDC and approved by SBA. There can be only one statewide CDC in each 
state, which must foster economic development throughout the state and 
provide 504 assistance to areas not adequately served by other CDCs.

Sec. 120.822  CDC membership.

    A CDC must have at least 25 members (or stockholders for for-profit 
CDCs approved prior to January 1, 1987). No person or entity may own or 
control more than 10 percent of the CDC's voting membership (or stock). 
Members must be representative of and provide evidence of active 
support in the Area of Operations. Members must be from each of the 
following groups:
    (a) Government organizations responsible for economic development 
in the Area of Operations and acceptable to SBA;
    (b) Financial institutions that provide commercial long-term fixed 
asset financing in the Area of Operations;
    (c) Community organizations dedicated to economic development in 
the Area of Operations such as chambers of commerce, foundations, trade 
associations, colleges, or universities; and
    (d) Businesses in the Area of Operations.

Sec. 120.823  CDC board of directors.

    The CDC must have a Board of Directors chosen from the membership 
by the members, and representing at least three of the four membership 
groups. No single group shall control. The Board members must be 
responsible officials of the organizations they represent, and at least 
one must possess commercial lending experience. The Board must meet at 
least quarterly and shall be responsible for CDC staff decisions and 
actions. A quorum shall require at least 5 Directors. If there is a 
vote on loan approval or servicing actions, at least one Board member 
with commercial loan experience approved by SBA must be present and 
vote. As an alternative, the Board may obtain the recommendation of 
another person approved by SBA and possessing commercial lending 
experience.

Sec. 120.824  Professional management and staff.

    A CDC must have full-time professional management, including an 
Executive Director (or the equivalent) managing daily operations. It 
must also have a full-time professional staff qualified by training and 
experience to market the 504 Program, package and process loan 
applications, close loans, service the loan portfolio, and sustain a 
sufficient level of service and activity in the Area of Operations.
    (a) Contracting out to third parties. CDCs may obtain, under 
contract, marketing, packaging, processing, and servicing services from 
qualified Service Providers located in the Area of Operations, subject 
to SBA's prior 

[[Page 64395]]
written approval. CDCs may contract for outside legal and accounting 
services without SBA approval. Compensation under all such contracts 
must be reasonable and customary for similar services in the Area of 
Operations. SBA may audit the contracts.
    (b) Contracting out to other CDCs. CDCs may contract with other 
CDCs for specific services, subject to SBA's prior written approval.

Sec. 120.825  Financial ability to operate.

    A CDC must be able to sustain its operations continuously, with 
reliable sources of funds (such as income from services rendered and 
contributions from government or other sponsors).

Sec. 120.826  Basic requirements for operating a CDC.

    A CDC must operate in accordance with applicable statutes, 
regulations, policy notices, SBA's Standard Operating Procedures 
(SOPs), and the information in its application. It must supply to SBA 
current and accurate information about all certification and 
operational requirements, and maintain the records and submit the 
reports required by SBA.

Sec. 120.827  Services a CDC provides to small businesses.

    (a) A CDC must operate in and adequately service its Area of 
Operations. It must market the 504 program, package and process 504 
loan applications, and close and service 504 loans. A CDC's loan 
portfolio must be diversified by business sector.
    (b) A CDC may help small businesses obtain financial and technical 
assistance from other sources, including preparing, closing, and 
servicing loans under contract with Lenders in SBA's 7(a) program.
    (c) A CDC also may loan amounts to the Borrower equal to the value 
of all or part of the Borrower's contribution to a Project in the form 
of cash or land, including site improvements, previously acquired by 
the CDC.

Sec. 120.828  The minimum level of CDC lending activity.

    Each full fiscal year, a CDC must provide at least the minimum 
number of 504 Loans set by SBA in an annual program announcement.

Sec. 120.829  The Job Opportunity average a CDC must maintain.

    (a) A CDC's portfolio must reflect an average of one Job 
Opportunity per $35,000 of 504 loan funding. The AA/FA may permit a CDC 
to average up to one per $45,000 for good cause in:
    (1) Alaska;
    (2) Hawaii;
    (3) Redevelopment areas as defined in 42 U.S.C. 3161;
    (4) State designated urban jobs and enterprise zones;
    (5) Empowerment Zones and Enterprise Communities; and
    (6) Labor Surplus Areas listed in the Department of Labor's 
publication ``Area Trends''.
    (b) A CDC must indicate in its annual report the Job Opportunities 
actually or estimated to be provided by each Project.
    (c) If a CDC does not maintain the required average, it may retain 
its certification if it justifies to SBA's satisfaction its failure to 
do so in its annual report and shows how it intends to attain the 
required average.

Sec. 120.830  Reports a CDC must submit.

    A CDC must submit the following reports to SBA:
    (a) An annual report within 90 days after the end of the CDC's 
fiscal year, and such interim reports as SBA may require;
    (b) Resumes for all new Associates and staff;
    (c) Reports of involvement in any legal proceeding;
    (d) Changes in organizational status;
    (e) Changes in any condition that affects its eligibility to 
continue to participate in the 504 program; and
    (f) Quarterly service reports on each loan in its portfolio which 
is 60 days or more past due (and interim reports upon request by SBA).

Sec. 120.831  Disclosure of referral fees or other payments by or to a 
CDC.

    The CDC must disclose to SBA and the Borrower any referral fees, 
remuneration, or payment made by the CDC to or received by the CDC from 
the Lender or any other party to the 504 transaction.

Extending a CDC's Area of Operations

Sec. 120.835  Application to extend an Area of Operations.

    SBA may expand a CDC's Area of Operations for good cause shown 
including a showing that the proposed Area of Operations is not being 
served adequately by the existing CDCs and that the expanding CDC is 
well-qualified to serve it. SBA shall not consider an Area of 
Operations adequately served if the existing CDCs in the Area of 
Operation have not averaged, over the last two fiscal years, sufficient 
loan approvals for the population in the CDC's Area of Operations, as 
set by SBA in an annual program announcement. The CDC must apply in 
writing to the SBA District Office serving the geographic area in which 
the CDC proposes to expand. The District Office shall submit its 
recommendation to the AA/FA for final decision.

Sec. 120.836  Public notice of application for extension.

    SBA must notify all CDCs servicing the proposed area of expansion, 
allowing at least 30 days for comment. The CDC also must publish a 
notice in a general circulation newspaper in the proposed area of 
expansion, giving the public at least 30 days to comment.

Sec. 120.837  Expiration of existing, temporary expansions.

    All existing, temporary expansions of Areas of Operation shall 
expire 6 months after the effective date of the final regulations, 
unless a CDC applies for permanent expansion before the expiration 
date.

Sec. 120.838  Case by case extensions.

    (a) A CDC may apply to make an individual loan for a Project 
outside its Area of Operations in an area not adequately served by 
other CDCs to the District Office serving the area in which the Project 
will be located. The District Director may approve the request for good 
cause shown.
    (b) A Borrower may request the services of a CDC not presently 
servicing its area by writing to the AA/FA.

Accredited Lenders Program (ALP)

Sec. 120.840  Accredited Lenders Program.

    The SBA may designate a CDC as an Accredited Lender. SBA will 
provide an Accredited Lender with expedited loan processing or 
servicing action (within three days of receiving a completed 
application).
    (a) Applications. CDCs may apply to the SBA field office with which 
it is most active. The SBA office will send its recommendation and the 
application to the AA/FA.
    (b) Eligibility. SBA will consider the CDC's ability to work with 
the local SBA office and the quality of past performance.
    (c) Term of designation. CDCs will be designated as ALPs for a two 
year period, and are eligible to renew the designation for additional 
two year periods.
    (d) Suspension and revocation. The AA/FA may suspend or revoke ALP 
designation upon written notice stating the reasons therefore at least 
10 business days prior to the effective date of the suspension or 
revocation. Reasons for suspension or revocation may include loan 
performance unacceptable to SBA or violations of applicable statutes, 

[[Page 64396]]
regulations or published SBA policies and procedures. An ALP may appeal 
the suspension or revocation made under this section pursuant to the 
procedures set forth in part 134 of this chapter. The action of the AA/
FA shall remain in effect pending resolution of the appeal.

Premier Certified Lenders Program

Sec. 120.845  Premier Certified Lenders Program.

    The SBA has established a pilot program to designate a number of 
CDCs as Premier Certified Lenders (``PCLPs''), which will be able to 
process, approve, close and service 504 loans.
    (a) Characteristics. Loans processed through the PCL Program will 
be subject to the same provisions as other 504 loans, including final 
approval by SBA.
    (b) Applications. A CDC may obtain information concerning this 
program from SBA's Office of Pilot Operations in Washington, D.C. A CDC 
may apply to the SBA field office with which it is most active. The SBA 
office will send the application with a recommendation to the AA/FA.
    (c) Eligibility. SBA will consider the CDC's ability to work with 
the local SBA office and the quality of past performance.
    (d) Loss reserve. A PCLP must establish a loss reserve, secured by 
its segregated assets in favor of SBA, in the amount of the PCLP's 
historic loss rate or 10 percent of its exposure under the PCLP 
program, whichever is greater. The PCLP must contribute to the loss 
reserve every time a Debenture is issued, in intervals set by SBA.
    (e) Review. The SBA shall review a PCLP's financings at least 
annually.
    (f) Suspension and revocation. The AA/FA may suspend or revoke PCLP 
designation upon written notice stating the reasons therefore at least 
10 business days prior to the effective date of the suspension or 
revocation. Reasons for suspension or revocation may include loan 
performance unacceptable to SBA, failure to meet loss reserve or 
eligibility criteria, or violations of applicable statutes, regulations 
or published SBA policies and procedures. A PCLP may appeal the 
suspension or revocation made under this section pursuant to the 
procedures set forth in part 134 of this title. The action of the AA/FA 
shall remain in effect pending resolution of the appeal.
    (g) Program period. On October 1, 1997, the PCLP pilot program 
ends.

Associate Development Companies (ADCs)

Sec. 120.850  ADC functions.

    (a) An ADC must support local economic development efforts. An ADC 
may package, close, and service loans for a CDC under a written 
contract approved by SBA. Such contracts must meet Service Provider 
criteria, and specify the rights and responsibilities of the parties 
(including payment terms). The CDC remains solely responsible to SBA 
for the processing, closing, and servicing of the loan. It may not 
charge the Borrower a higher fee because it is using the ADC's 
services.
    (b) An ADC must operate in accordance with statutes, regulations, 
policy notices, SBA's Standard Operating Procedures (SOPs), and the 
information in its application. It must supply to SBA current and 
accurate information about all certification and operational 
requirements, and maintain the records required by SBA.

Sec. 120.851  ADC eligibility and operating requirements.

    (a) An ADC must demonstrate to SBA and maintain the following:
    (1) Adequate management ability;
    (2) A Board of Directors meeting at least quarterly and chosen from 
the membership by the members;
    (3) A professional staff, including at least one qualified full-
time professional with small business lending experience available 
during regular business hours; and
    (4) A budget or financial statements showing the financial 
capability and funding to sustain continuing operations.
    (b) An ADC may contract out for staff services only if SBA gives 
prior approval. The contract, subject to SBA audit, may not be self-
serving, and compensation must be reasonable and customary.

Sec. 120.852  Suspension and revocation of ADCs.

    SBA may require corrective action, or the AA/FA may suspend or 
revoke ADC status upon written notice stating the reasons therefore at 
least 10 business days prior to the effective date of the suspension or 
revocation. Reasons for suspension or revocation may include violations 
of applicable statutes, regulations or published SBA policies and 
procedures. An ADC may appeal the suspension or revocation made under 
this section pursuant to the procedures set forth in part 134 of this 
chapter. The action of the AA/FA shall remain in effect pending 
resolution of the appeal.

Ethical Requirements

Sec. 120.855  CDC and ADC ethical requirements.

    CDCs and ADCs and their Associates must act ethically and exhibit 
good character. They must meet all of the ethical requirements of 
Sec. 120.140. In addition, they are subject to the following:
    (a) Any benefit flowing to an Associate or the Associate's employer 
from the Associate's activities as an Associate shall be merely 
incidental (this requirement does not prevent an Associate or an 
Associate's employer from engaging in a business relationship with the 
CDC and/or the Borrower in the regular course of business, including 
providing interim financing or Third-Party loans); and
    (b) Unless waived by SBA, an Associate may not be an officer, 
director, or manager of more than one CDC or ADC (except that the 
membership or Board of Directors of a broader-based CDC may include a 
member or director of a local CDC within its Area of Operations).

Project Economic Development Goals

Sec. 120.860  Required objectives.

    A Project must achieve at least one of the economic development 
objectives set forth in Sec. 120.861 or Sec. 120.862.

Sec. 120.861  Job creation or retention.

    A Project must create or retain one Job Opportunity for every 
$35,000 guaranteed by SBA.

Sec. 120.862  Other economic development objectives.

    A Project that achieves any of the following community development 
or public policy goals is eligible if the CDC's overall portfolio of 
504 loans, including the subject loan, meets or exceeds the CDC's 
required Job Opportunity average. Applications for assistance must 
indicate how the Project will meet the specified economic development 
objective.
    (a) Community Development goals:
    (1) Improving, diversifying or stabilizing the economy of the 
locality;
    (2) Stimulating other business development;
    (3) Bringing new income into the community; or
    (4) Assisting manufacturing firms (Standard Industrial 
Classification Manual (SIC) Codes 20-49).
    (b) Public Policy goals:
    (1) Revitalizing a business district of a community with a written 
redevelopment plan;
    (2) Expanding exports;
    (3) Expanding Minority Enterprise development (See Sec. 124.103(b) 
of this chapter.);
    (4) Aiding rural development;
    (5) Increasing productivity and competitiveness (retooling, 
robotics, modernization, competition with imports); 

[[Page 64397]]

    (6) Modernizing or upgrading facilities to meet health, safety, and 
environmental requirements;
    (7) Assisting businesses affected by Federal budget reductions, 
such as base closings; or
    (8) Assisting businesses in Labor Surplus Areas as defined by the 
Department of Labor.

Leasing Policies Specific to 504 Loans

Sec. 120.870  Leasing Project Property.

    (a) A Borrower may use the proceeds of a 504 loan to acquire, 
construct, or modify buildings and improvements, and/or to purchase and 
install machinery and equipment located on land leased to the Borrower 
by the CDC or an unrelated lessor if:
    (1) The remaining term of the lease, including options to renew, 
exercisable solely by the lessee, equals or exceeds the term of the 
Debenture, or, in the case of machinery or equipment, equals or exceeds 
the useful life of the property or the term of the Debenture, whichever 
is lesser;
    (2) The Borrower assigns its interest in the lease to the CDC with 
right of reassignment to SBA; and
    (3) The 504 loan is secured by a recorded lien against the 
leasehold estate and other collateral as necessary.
    (b) If a CDC leases property to a small business, the rent paid by 
the small business during the term of the Debenture must be enough to 
pay principal and interest on all debt incurred by the CDC to finance 
the Project, and all related expenses. The rent also may include a 
reasonable return on the CDC's investment.

Sec. 120.871  Leasing part of a new construction Project to another 
business.

    If a Project is the construction of a new building, a Borrower may 
lease up to 33% of the square footage of the rentable property (total 
square footage of all buildings or facilities used for business 
operations) for a short term to any third party if reasonable growth 
projections show that the Borrower will need additional space within 
three years and will use all of the additional space within ten years. 
If the Borrower is an Eligible Passive Company leasing 100 percent of 
the Project space to an Operating Company, the Operating Company may 
sublease up to 33 percent to a third party under the same conditions.

Sec. 120.872  Leasing part of an existing building to another business.

    If a Project involves the acquisition, renovation, or 
reconstruction of an existing building, the Borrower (or Operating 
Company) must occupy at least 51 percent of the Rentable Property. The 
balance of the Rentable Property may be leased out to any third party, 
if the 504 loan proceeds were not used to remodel or convert the space 
to be leased out. The costs of interior finishing of the space to be 
leased out are not eligible Project costs, and third-party loan 
proceeds used to renovate the leased space shall not count towards the 
504 first mortgage requirement or the Borrower's contribution.

Loan-Making Policies Specific to 504 Loans

Sec. 120.880  Basic eligibility requirements.

    In addition to the eligibility requirements specified in subpart A, 
to be an eligible Borrower for a 504 loan, a small business must:
    (a) Use the Project Property (except for loans to Passive 
Companies); and
    (b) Together with its affiliates, meet one of the following size 
standards:
    (1) It does not have a net worth in excess of $6 million, and does 
not have an average net income after Federal income taxes (excluding 
any carry-over losses) for the preceding two years in excess of $2 
million; or
    (2) It meets the size standards in Part 121 of this chapter for the 
industry in which it is primarily engaged.

Sec. 120.881  Ineligible Projects for 504 loans.

    In addition to the ineligible businesses and uses of proceeds 
specified in subpart A of this part, the following Projects are 
ineligible for 504 financing:
    (a) Relocation of any of the operations of a small business which 
will cause a Substantial Increase in Unemployment, unless the CDC can 
justify the loan because:
    (1) The relocation is for key economic reasons and crucial to the 
continued existence, economic wellbeing, and/or competitiveness of the 
applicant; and
    (2) The economic development benefits to the applicant and the 
receiving community outweigh the negative impact on the community from 
which the applicant is moving;
    (b) Projects in foreign countries (loans financing real or personal 
property located outside the United States or its possessions); and
    (c) Speculative Projects (such as oil wildcatting).

Sec. 120.882  Eligible Project costs for 504 loans.

    Eligible Project costs which may be paid with the proceeds of 504 
loans are:
    (a) Costs directly attributable to the Project including 
expenditures incurred by the Borrower (with its own funds or from a 
loan):
    (1) To acquire land used in the Project prior to applying to SBA 
for the 504 loan; or
    (2) For any other expense toward a Project within six months of 
receipt by SBA of a complete loan application;
    (b) In construction Projects, a contingency reserve for cost 
overruns not to exceed 10 percent of construction cost;
    (c) Professional fees directly attributable and essential to the 
Project, such as title insurance, architecture, engineering, 
accounting, legal fees and environmental studies; and
    (d) Repayment of interim financing including points, fees and 
interest.

Sec. 120.883  Eligible administrative costs for 504 loans.

    The following costs and fees are not part of Project costs but may 
be paid with the proceeds of the 504 loan and the Debenture:
    (a) SBA guarantee fee;
    (b) Funding fee (to cover cost of public issuance of securities);
    (c) CDC processing fee;
    (d) Closing costs, including legal fees; and
    (e) Underwriters fee.

Sec. 120.884  Ineligible costs for 504 loans.

    Costs not directly attributable and necessary for the Project may 
not be paid with proceeds of the 504 loan. These include, but are not 
limited to, the following:
    (a) Debt refinancing (other than interim financing);
    (b) Third-Party Loan fees (commitment, broker, finders, 
origination, processing fees of permanent financing);
    (c) Ancillary business expenses, such as:
    (1) Working capital;
    (2) Counseling or management services fees;
    (3) Incorporation/organization costs;
    (4) Franchise fees; and
    (5) Advertising;
    (d) Non fixed-asset project components, such as:
    (1) Short-term equipment, furniture, and furnishings (unless 
essential to and a minor portion of the Project);
    (2) Automobiles, trucks, and airplanes; and
    (3) Construction equipment (except for heavy duty construction 
equipment integral to a business' operations and meeting the IRS 
definition of capital equipment).

Interim Financing

Sec. 120.890  Source of interim financing.

    A Project may use interim financing for all Project costs except 
the 

[[Page 64398]]
Borrower's contribution. Any source (including a CDC) may supply 
interim financing provided:
    (a) The financing is not derived from any SBA program, directly or 
indirectly;
    (b) The terms and conditions of the financing are acceptable to 
SBA;
    (c) The source is not the Borrower or an Associate of the Borrower; 
and
    (d) The source has the experience and qualifications to monitor 
properly all construction and progress payments. (If the source lacks 
such experience or qualifications, SBA may require the interim loan to 
be managed by a third party such as a bank or professional construction 
manager.)

Sec. 120.891  Certifications of disbursement and completion.

    Before the Debenture is issued, the interim lender must certify 
that the interim financing has been disbursed in a manner consistent 
with the terms of the Authorization. Also, the CDC must certify that 
the Project was completed in accordance with the final plans and 
specifications (except as provided in Sec. 120.962).

Sec. 120.892  Certifications of no adverse change.

    Following completion of the Project, the following certifications 
must be made before the 504 loan closing:
    (a) The interim lender must certify to the CDC that it has no 
knowledge of any adverse change in the condition of the small business 
since the application;
    (b) The Borrower (or Operating Company) must certify to the CDC 
that there has been no adverse change in its financial condition or its 
ability to repay the 504 loan since the date of application, and must 
furnish interim financial statements, current within 90 days of 
closing; and
    (c) The CDC must issue an opinion to the best of its knowledge that 
there has been no adverse change in the Borrower's (or Operating 
Company's) ability to repay the 504 loan since SBA's approval of the 
loan application.

Permanent Financing

Sec. 120.900  What are the sources of permanent financing?

    Permanent financing for each Project must come from three sources: 
the Borrower's contribution, Third-Party Loans, and the 504 loan. 
Typically, the Borrower contributes 10 percent of the permanent 
financing, Third-Party Loans 50 percent and the 504 loan 40 percent.

The Borrower's Contribution

Sec. 120.910  How much must the Borrower contribute?

    The Borrower must contribute to the Project cash (or property 
acceptable to SBA obtained with the cash) or land (that is part of the 
Project Property) valued at 10 percent or more of the Project cost 
(exclusive of administrative cost). The source of the contribution may 
be a CDC or any other source except an SBA business loan program (see 
Sec. 120.913 for SBIC exception).

Sec. 120.911  Land contributions.

    The Borrower's contribution may be land, including site 
improvements, previously acquired by the Borrower or the CDC. The 
amount of the contribution shall be the value of the contributor's 
equity in the land, excluding the value of any structures, under SBA's 
policy guidelines.

Sec. 120.912   Borrowed contributions.

    The Borrower may borrow its cash contribution from the CDC or a 
third party. If any of the contribution is borrowed, the interest rate 
must be reasonable. If the loan is secured by any of the Project 
assets, the loan must be subordinate to the liens securing the 504 
Loan, and the loan may not be repaid at a faster rate than the 504 Loan 
unless SBA gives prior written approval. A third party lender may not 
receive voting rights, stock options, or any other actual or potential 
voting interest in the small business.

Sec. 120.913   May an SBIC provide the contribution?

    Subject to part 107 of this chapter, SBIC's may provide financing 
for all or part of the Borrower's contribution to the project. SBA 
shall consider SBIC funds to be derived from federal sources if the 
SBIC has leverage (as defined in part 107 of this chapter). If the SBIC 
does not have leverage, the investment will be considered to be from 
private funds. SBIC financing must be subordinated to the 504 loan and 
may not be repaid at a faster rate than the Debenture.

Third Party Loans

Sec. 120.920   The first lien position.

    The Borrower must obtain one or more Third Party Loans totaling at 
least as much as the 504 loan. Third Party Loans usually have the first 
lien position. They cannot be guaranteed by SBA.

Sec. 120.921   Terms of Third Party loans.

    (a) Maturity. A Third Party Loan must have a term of at least 7 
years when the 504 loan is for a term of 10 years and 10 years when the 
504 loan is for 20 years. If there is more than one Third Party Loan, 
an overall loan maturity must be calculated, taking into account the 
maturities and amounts of each loan. If there is a balloon payment, it 
must be justified in the loan report and clearly identified in the Loan 
Authorization.
    (b) Interest rates. Interest rates must be reasonable. SBA must 
establish and publish in the Federal Register a maximum interest rate 
for any Third Party Loan from commercial financial institutions. The 
rate shall remain in effect until changed.
    (c) Other terms. The Third Party Loan must not have any early call 
feature or contain any demand provisions unless the loan is in default. 
By participating, a Third Party Loan lender waives, as to the CDC/SBA 
financing, any provision in its deed of trust, or mortgage, or other 
documents prohibiting further encumbrances or subordinate debt. In the 
event of default, the Third Party Lender must give the CDC and SBA 
written notice of default within 30 days of the event of default and at 
least 60 days prior to foreclosure.

Sec. 120.922   Pre-existing debt on the Project Property.

    In addition to its share of Project cost, a Third Party Loan may 
include consolidation of existing debt on the Project Property. The 
consolidation must not improve the lien position of the Lender on the 
pre-existing debt, unless the debt is a previous Third Party Loan.

Sec. 120.923   What are the policies on subordination?

    (a) Financing provided by the seller of Project Property must be 
subordinate to the 504 loan. SBA may waive the subordination 
requirement if the property is classified as ``other real estate 
owned'' by a national bank or other Federally regulated lender and SBA 
considers the property to be of sufficient value to support the 504 
loan.
    (b) By participating, Third Party Loan lienholders subordinate to 
the CDC/SBA lien future advances in excess of the Third Party Loans 
except expenditures for collection, maintenance, and protection of the 
Third Party Loan lienholder's lien position.
    (c) A Borrower is eligible for a 504 loan even if part of the 
Project financing is tax-exempt. SBA's lien position must not be 
subordinate to loans made from the proceeds of the tax-exempt 
obligation.

[[Page 64399]]

Sec. 120.924   Prepayment of subordinate financing.

    The Borrower must not prepay any Project financing subordinate to 
the 504 loan without SBA's prior written consent.

Sec. 120.925   Preferences.

    No Third Party Lender shall establish a Preference.

504 Loans and Debentures

Sec. 120.930   Amount.

    (a) Generally, a 504 loan may not exceed 40 percent of total 
Project cost plus 100 percent of eligible administrative costs. For 
good cause shown, SBA may authorize an increase in the percentage of 
Project costs covered up to 50 percent. No more than 50 percent of 
eligible Project costs can be from Federal sources, whether received 
directly or indirectly through an intermediary.
    (b) Generally, the minimum 504 loan must be $50,000, although, upon 
good cause shown, SBA may permit a 504 loan as small as $25,000. The 
amount of the Debenture must equal the amount of the 504 Loan. If the 
cost of the completed Project is less than 98 percent of the authorized 
Debenture amount, the amount of the Debenture to be issued shall be 
reduced by the difference. If the cost of the completed project is at 
least 98 percent of the authorized Debenture amount, the full 
authorized amount of the Debenture shall be disbursed.

Sec. 120.931   504 lending limits.

    The outstanding balance of all SBA financial assistance to a 
Borrower and its affiliates under the 504 program covered by this Part 
must not exceed $750,000 ($1,000,000 if one or more of the public 
policy goals enumerated in Sec. 120.861(b) applies to the Project).

Sec. 120.932   Interest rate.

    The interest rate of the 504 Loan and the Debenture which funds it 
is set by the Underwriter and approved by the Secretary of the 
Treasury. Each 504 loan must have a fixed interest rate.

Sec. 120.933   Maturity.

    The term of a 504 Loan and the Debenture which funds it shall be 
either 10 or 20 years.

Sec. 120.934   Collateral.

    The CDC/SBA takes at least a second lien position on the Project 
collateral. In rare circumstances, collateral other than the Project 
collateral may be accepted by SBA. Sometimes secondary collateral is 
required. All collateral must be insured against such hazards and risks 
as SBA may require, with provisions for notice to SBA and the CDC in 
the event of impending lapse of coverage.

Sec. 120.935   Deposit.

    At the time of application for a 504 loan, the CDC may require a 
deposit from the Borrower of $2,500 or 1 percent of the Net Debenture 
Proceeds, whichever is less. The deposit may be applied to the loan 
processing fee if the application is accepted, but must be refunded if 
the application is denied. If the small business withdraws its 
application, the CDC may deduct from the deposit reasonable costs 
incurred in packaging and processing the application.

Sec. 120.936   Subordination to CDC.

    SBA, in its sole discretion, may permit subordination of the 
Debenture to any other obligation of the CDC, except debt incurred by 
the CDC to obtain funds to loan to the Borrower for the Borrower's 
required contribution to the Project financing.

Sec. 120.937   Assumption.

    A 504 loan may be assumed with SBA's prior written approval.

Sec. 120.938   Default.

    (a) Upon occurrence of an event of default specified in the 504 
note which requires automatic acceleration, the note becomes due and 
payable. Upon occurrence of an event of default which does not require 
automatic acceleration, SBA may forbear acceleration of the note and 
attempt to resolve the default. If the default is not cured 
subsequently, the note shall be accelerated. In either case, upon 
acceleration of the note, the Debenture which funded it is also due 
immediately, and SBA must honor its guarantee of the Debenture. SBA 
shall not reimburse the investor for any premium paid.
    (b) If a CDC defaults on a Debenture, SBA generally shall limit its 
recovery to the payments made by the small business to the CDC on the 
loan made from the Debenture proceeds, and the collateral securing the 
defaulted loan. However, SBA will look to the CDC for the entire amount 
of the Debenture in the case of fraud or negligence by the CDC.

Sec. 120.939   Borrower prohibition.

    Neither a 504 loan recipient nor its Small Business Associate may 
purchase the Debenture that funded its 504 loan.

Sec. 120.940   Prepayment of the 504 loan or Debenture.

    The Borrower may prepay its 504 loan, if it pays the entire 
principal balance, unpaid interest, any unpaid fees, and any prepayment 
premium established in the note. If the Borrower prepays, the CDC must 
prepay the corresponding Debenture with interest and premium. If one of 
the Debentures in a Debenture Pool is prepaid, Certificate holders must 
be paid pro rata, and SBA's guarantee on the entire Debenture Pool must 
be proportionately reduced. If the entire Debenture Pool is paid off, 
SBA may call all Certificates backed by the Pool for redemption.

Sec. 120.941   Certificates.

    (a) The face value of a Certificates must be at least $25,000. 
Certificates are issued in registered form and transferred only by 
entry on the central registry maintained by the Trustee. No transfer 
may take place within 10 business days of a payment date. SBA 
guarantees the timely payment of principal and interest on the 
Certificates.
    (b) Before the sale of a Certificate, the seller, or the broker or 
dealer acting as the seller's agent, must disclose to the purchaser the 
terms, conditions, yield, and premium and other characteristics not 
guaranteed by SBA.

Debenture Sales and Service Agents

Sec. 120.950   SBA and CDC must appoint agents.

    SBA and the CDC must appoint the following agents to facilitate the 
sale and service of the Certificates and disbursement of the proceeds.

Sec. 120.951   Selling agent.

    The CDC, with SBA approval, shall appoint a Selling Agent to select 
underwriters, negotiate the terms and conditions of Debenture offerings 
with the underwriters, and direct and coordinate Debenture sales.

Sec. 120.952   Fiscal agent.

    SBA shall appoint a Fiscal Agent to assess the financial markets, 
minimize the cost of sales, arrange for the production of the Offering 
Circular, Debenture Certificates, and other required documents, and 
monitor the performance of the transfer agent and the underwriters.

Sec. 120.953   Trustee.

    SBA must appoint a Trustee (known as a Transfer Agent for the 
December l986 Debenture sale) to:
    (a) Issue Certificates;
    (b) Transfer the Certificates upon resale in the secondary market;
    (c) Maintain physical possession of the Debentures for SBA and the 
Certificate holders;
    (d) Establish and maintain a central registry of:
    
[[Page 64400]]

    (1) Debenture Pools, including the CDC obligors and the interest 
rate payable on the Debentures in each Pool;
    (2) Certificates issued or transferred, including the Debenture 
Pool backing the Certificate, name and address of the purchaser, price 
paid, the interest rate on the Certificate, and fees or charges 
assessed by the transferror; and
    (3) Brokers and dealers in Certificates, and the commissions, fees 
or discounts granted to the brokers and dealers;
    (e) Receive semi-annual Debenture payments and prepayments;
    (f) Make regularly scheduled and prepayment payments to Registered 
Holders of Debentures or Certificates; and
    (g) Assure before any resale of a Debenture or Certificate is 
recorded in the registry that the seller has provided the purchaser a 
written disclosure statement approved by SBA.

Sec. 120.954   Central Servicing Agent.

    (a) SBA has entered into a Master Servicing Agreement designating a 
Central Servicing Agent (CSA) to support the orderly flow of funds 
among Borrowers, investors, CDCs, and SBA. The CDC and Borrower must 
enter into an individual Servicing Agent Agreement with the CSA for 
each 504 loan, constituting acceptance by the CDC and the Borrower of 
the terms of the Master Servicing Agreement.
    (b) The CSA has established a master reserve account. All funds 
related to the 504 loans and Debentures flow through the master reserve 
account under the provisions of the Master Servicing Agreement. The 
master reserve account shall be funded by a reserve deposit, a funding 
fee to be published from time to time in the Federal Register, and by 
principal and interest payments of 504 loans. At SBA's direction, the 
CSA uses the funds in the master reserve account to defray program 
expenses. In the event a Borrower defaults and the 504 note is 
accelerated, SBA shall add funds under its guarantee to ensure the full 
and timely payment of the Debenture which funded the 504 loan. The CSA 
shall pay to the CDC servicing each loan the interest accruing in the 
master reserve account on loan payments made by each Borrower between 
the date of receipt of each monthly payment and the date of 
disbursement to investors. The CSA may disburse such interest 
periodically to CDCs on a pro rata basis. SBA may use interest accruals 
in the account earned prior to October 1991 on such payments (not 
previously distributed to the CDCs) for 504 program administration.

Sec. 120.955   Agent bonds and records.

    (a) Each agent (in Secs. 120.951-120.955) must provide a fidelity 
bond or insurance in such amount as necessary to fully protect the 
interest of the government.
    (b) SBA must have access at the agent's place of business to all 
books, records and other documents relating to Debenture activities.

Sec. 120.956   Suspension or revocation of brokers and dealers.

    The AA/FA may suspend or revoke the privilege of any broker or 
dealer to participate in the sale or marketing of Debentures and 
Certificates for actions or conduct bearing negatively on the broker's 
fitness to participate in the securities market. SBA must give the 
broker or dealer written notice, stating the reasons therefore, at 
least 10 business days prior to the effective date of the suspension or 
revocation of ADC status. A broker or dealer may appeal the suspension 
or revocation made under this section pursuant to the procedures set 
forth in part 134 of this chapter. The action of the AA/FA shall remain 
in effect pending resolution of the appeal. SBA may suspend or revoke 
of the opportunity for a hearing under part 134 of this chapter.

Closings

Sec. 120.960   Responsibility for closing.

    The CDC is responsible for the 504 Loan closing. The Debenture 
closing is the joint responsibility of the CDC and SBA.

Sec. 120.961   CDC closing fees.

    (a) The CDC may charge the Borrower an amount sufficient to 
reimburse it for reasonable legal fees related to closing the 504 loan. 
The legal fees and other professional fees and closing costs are 
administrative costs eligible for reimbursement from the debenture 
proceeds.
    (b) The CDC may charge a finder's fee of up to 1.5 percent of the 
504 loan if the CDC secured the lender for the Borrower under a written 
contract. Either the Borrower or the lender may pay the fee. It may not 
be reimbursed from the Debenture proceeds.

Sec. 120.962   Construction escrow accounts.

    The CSA, title company, or bank may hold Debenture proceeds in 
escrow to complete Project components such as landscaping and parking 
lots, and acquire machinery and equipment if the component or 
acquisition is a minor portion of the total Project and has been 
contracted for completion or delivery at a specified price and specific 
future date. The escrow agent must disburse funds upon approval by the 
CDC and the SBA, supported by invoices and payable jointly to the small 
business and the designated contractor.

Servicing and Post-Closing Fees

Sec. 120.970   Servicing of 504 loans and Debentures.

    The CDC must service the 504 loan in accordance with the Loan 
Authorization, these regulations, SBA policies and procedures, and 
prudent lending standards until paid in full, including review of the 
small business's financial statements, tax filings, insurance, and 
security filings. CDCs must comply with the provisions of Sec. 120.513. 
In addition, the CDC must comply with the servicing requirements set 
forth in SBA's SOP. The CDC must report promptly to SBA any adverse 
trend, condition or information. Upon request by a CDC, SBA may agree 
to defer a Borrower's monthly payment. SBA may negotiate agreements 
with CDCs to liquidate loans.

Sec. 120.971   Post-closing fees paid by Borrower.

    (a) CDC fees. CDCs may charge the following fees to the Borrower:
    (1) Service fee. A service charge of not less than 0.5 percent nor 
more than 2 percent per annum on the outstanding balance of the 504 
loan measured at 5 year anniversary intervals. A service charge in 
excess of 1.5 percent in a Rural Area and 1 percent everywhere else 
requires SBA's prior written approval, based on evidence of substantial 
need. The CDC's monthly service fee shall be paid only from loan 
payments received. The fees may be accrued without interest and 
collected from the CSA when the payments are made;
    (2) Late fees. Payments received after the 15th of each month may 
be subject to a late payment fee of 5 percent of the late payment or 
$100, whichever is greater, collected by the CSA on behalf of the CDC; 
and
    (3) Assumption fee. Upon SBA's written approval, a CDC may charge 
an assumption fee equal to no more than 1 percent of the outstanding 
principal balance of the loan being assumed.
    (b) CSA fees. The CSA may charge an initiation fee on each loan and 
a monthly service fee under the terms of the Master Servicing 
Agreement.
    (c) Other agent fees. Agent fees and charges necessary to market 
and service Debentures and Certificates may be assessed to the Borrower 
or the investor. The fees must be approved by SBA and published 
periodically in the Federal Register.

[[Page 64401]]

    (d) SBA fees. The Borrower shall pay SBA an annual fee of 0.125 
percent of the outstanding balance of each 504 loan approved after 
October 1, 1995.

Sec. 120.972   Oversight and evaluation of CDCs and ADCs.

    SBA may conduct an operational review of a CDC or ADC. The SBA 
Office of Inspector General may conduct, supervise or coordinate 
compliance audits pursuant to the Inspector General Act. The CDC or ADC 
must cooperate and make its staff, records, and facilities available.

CDC Transfer, Suspension and Revocation

Sec. 120.980   Transfer of CDC to ADC status.

    SBA shall transfer to ADC status any CDC that fails to meet the 
activity level required by SBA, on average over two consecutive fiscal 
years. SBA shall notify the CDC in writing of the action and of the 
opportunity for a hearing pursuant to part 134 of this chapter at least 
10 business days prior to the transfer. During the pendency of a 
hearing, SBA's action will remain in effect.

Sec. 120.981   Voluntary transfer and surrender of CDC certification.

    A CDC may not transfer its certification or withdraw from the 504 
program without SBA's consent. The CDC must provide a plan to SBA to 
transfer its portfolio. The portfolio may only be transferred with 
SBA's written consent. If a CDC desires to withdraw from the 504 
program, it must forfeit its portfolio to SBA. SBA may conduct an audit 
of the transferring or withdrawing CDC.

Sec. 120.982   Correcting CDC servicing deficiencies.

    SBA may require corrective action, including the transfer of 
existing or pending financings to another CDC in good standing. SBA 
must notify the CDC in writing of any servicing, reporting or 
collection deficiencies and the corrective actions to be taken. SBA may 
instruct the CSA to withhold service and late fees and may assess the 
CDC up to $250 per day for expenses incurred by SBA to correct the 
deficiencies. If non-compliance continues for 90 days, SBA may take the 
fees as compensation for its efforts to obtain compliance.

Sec. 120.983   Transfer of CDC servicing to SBA or another CDC.

    If a CDC fails to correct servicing deficiencies, or is unable or 
unwilling to service its portfolio, SBA may assume the servicing or 
require the transfer of all or part of the CDC's portfolio to another 
CDC within or adjoining the deficient CDC's Area of Operations. If 
there is no suitable CDC, SBA may approve a transfer to another entity. 
Future service fees from transferred loans will be paid to the 
transferee. In addition, the CDC's processing authority will be 
temporarily suspended.

Sec. 120.984   Suspension or revocation of CDC certification.

    (a) Suspend or revoke. SBA may suspend or revoke the CDC's 
certification if a CDC:
    (1) Violates a statute, an SBA regulation, or the terms of a 
Debenture, authorization, or agreement with SBA;
    (2) Makes a material false statement, knowingly misrepresents, or 
fails to state a material fact;
    (3) Fails to maintain good character;
    (4) Fails to operate according to prudent lending standards;
    (5) Fails to correct servicing, collection, reporting, or other 
deficiencies; or
    (6) Is unable or unwilling to operate in accordance with the 
requirements of this part.
    (b) Transfer portfolio. Upon suspension or revocation, the CDC must 
transfer its remaining portfolio and any 504 applications or financings 
in process to another CDC designated or approved by SBA. If a pending 
504 financing is completed after a transfer, any deposit must also be 
transferred. Any fees must be apportioned by SBA between the two CDCs 
in proportion to services performed.
    (c) Provide written notice. SBA must give written notice to the CDC 
at least 10 business days prior to the effective date of a suspension 
or revocation, informing the CDC of the opportunity for a hearing 
pursuant to part 134 of this chapter.

Enforceability of 501, 502 and 503 Loans and Other Laws

Sec. 120.990   501, 502, and 503 loans.

    SBA has discontinued loan programs for 501, 502, and 503 loans. 
Outstanding loans remain under these programs, and Borrowers, CDCs, and 
SBA must comply with the terms and conditions of the corresponding 
notes and Debentures, and the regulations in effect when the 
obligations were undertaken or last in effect, if applicable.

Sec. 120.991   Effect of other laws.

    No State or local law may preclude or limit SBA's exercise of its 
rights with respect to notes, guarantees, Debentures and Debenture 
Pools, or of its enforcement rights to foreclose on collateral.

PARTS 108, 116, 122, AND 131--[REMOVED]

    2. Parts 108, 116, 122, and 131 are removed.

    Dated: November 13, 1995.
Philip Lader,
Administrator.
[FR Doc. 95-30327 Filed 12-14-95; 8:45 am]
BILLING CODE 8025-01-P

Complete official Federal Register PDF

Continue sua pesquisa no ChatGPT ou Claude

Conecte o Omnilex para pesquisar o corpus jurídico pelo seu assistente de IA.