1. 29695
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eligibility in the NFIP. No regulatory 12612, Federalism, dated October 26, PART 67—[AMENDED]
1987.
flexibility analysis has been prepared.
1. The authority citation for part 67
Executive Order 12778, Civil Justice
Regulatory Classification
continues to read as follows:
Reform
This proposed rule is not a significant Authority: 42 U.S.C. 4001 et seq.;
This proposed rule meets the
regulatory action under the criteria of Reorganization Plan No. 3 of 1978, 3 CFR,
applicable standards of Section 2(b)(2)
Section 3(f) of Executive Order 12866 of 1978 Comp., p. 329; E.O. 12127, 44 FR 19367,
of Executive Order 12778.
September 30, 1993, Regulatory 3 CFR, 1979 Comp., p. 376.
List of Subjects in 44 CFR Part 67
Planning and Review, 58 FR 51735.
§ 67.4 [Amended]
Administrative practice and
Executive Order 12612, Federalism
procedure, flood insurance, reporting 2. The tables published under the
and recordkeeping requirements. authority of § 67.4 are proposed to be
This proposed rule involves no
policies that have federalism Accordingly, 44 CFR part 67 is amended as follows:
implications under Executive Order proposed to be amended as follows:
# Depth in feet above
ground Elevation in
State City/town/county Source of flooding Location feet ((NAVD)
Existing Modified
Iowa ............... West Des Moines (City) Jordan Creek ............... Approximately 3,210 feet downstream of 68th None ........ 924.
Polk and Dallas Street.
Counties.
Approximately 1,950 feet upstream of E.P. True None ........ 970.
Parkway.
Raccoon River ............. Approximately 75 feet downstream of South 814 .......... 816.
First Street.
Approximately 1.7 miles upstream of U.S. Inter- 832 .......... 833.
state 35.
Maps are available for inspection at City Hall, 4200 Mills Civic Parkway, West Des Moines, Iowa.
Send comments to The Honorable Eugene Meyer, Mayor, City of West Des Moines, 4200 Mills Civic Parkway, West Des Moines, Iowa 50265.
(Catalog of Federal Domestic Assistance No. clarify the focus of the regulation on the Procedural Background
83.100, ‘‘Flood Insurance.’’) financial eligibility of applicants for On June 30, 2001, LSC initiated a
Dated: May 18, 2005. LSC-funded legal services. Negotiated Rulemaking and appointed a
David I. Maurstad, Working Group comprised of
Comments must be submitted on
DATES:
Acting Director, Mitigation Division, representatives of LSC (including the
or before June 23, 2005.
Emergency Preparedness and Response Office of Inspector General), the
Comments must be
ADDRESSES:
Directorate. National Legal Aid and Defenders
submitted in writing and may be sent by
[FR Doc. 05–10299 Filed 5–23–05; 8:45 am] Association, the Center for Law and
regular mail, or may be transmitted by Social Policy, the American Bar
BILLING CODE 9110–12–P
fax or email to: Mattie C. Condray, Association’s Standing Committee on
Senior Assistant General Counsel, Office Legal Aid and Indigent Defendants and
of Legal Affairs, Legal Services a number of individual LSC recipient
LEGAL SERVICES CORPORATION Corporation, 3333 K. St., NW., programs. The Negotiated Rulemaking
Washington, DC 20007–3522; (202) 337– Working Group met three times
45 CFR Part 1611
6519 (fax); mcondray@lsc.gov (e-mail). throughout 2002 and developed a Draft
Financial Eligibility Notice of Proposed Rulemaking (NPRM)
FOR FURTHER INFORMATION CONTACT:
which was the basis for the NPRM
Mattie C. Condray, Senior Assistant
Legal Services Corporation.
AGENCY:
published by LSC on November 22,
General Counsel, Office of Legal Affairs,
Notice of proposed rulemaking.
ACTION: 2002 proposing significant revisions to
Legal Services Corporation, 3333 K. St.,
to Part 1611 (67 FR 70376). LSC
NW., Washington, DC 20007–3522;
SUMMARY: The Legal Services
received 15 comments on that NPRM.
(202) 295–1624 (phone); (202) 337–6519
Corporation (‘‘LSC’’ or ‘‘Corporation’’) is
Except as specifically noted in the
(fax); mcondray@lsc.gov (e-mail).
republishing for additional comment
Section-by-Section analysis below, the
previously proposed amendments (with Section
SUPPLEMENTARY INFORMATION:
comments LSC received either
certain additional revisions) to its 1007(a) of the Legal Services
affirmatively supported or raised no
regulations relating to financial Corporation Act requires LSC to
objection to the proposals in the
eligibility for LSC-funded legal services. establish guidelines, including setting
November 2002 NPRM.1
The proposed revisions are intended to maximum income levels, for the
Upon receipt of the comments, LSC
reorganize the regulation to make it determination of applicants’ financial
staff prepared a Draft Final Rule
easier to read and follow; simplify and eligibility for LSC-funded legal
discussing the comments and making
streamline the requirements of the rule assistance. Part 1611 implements this
permanent the proposed revisions.
to ease administrative burdens faced by provision, setting forth the requirements
LSC recipients in implementing the relating to determination and 1 For additional discussion of the Negotiated
regulation and to aid LSC in documentation of client financial Rulemaking Working Group, see 67 FR 70376
enforcement of the regulation; and to eligibility. (November 22, 2002).
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2. 29696 Federal Register / Vol. 70, No. 99 / Tuesday, May 24, 2005 / Proposed Rules
However, on the eve of the January implementing the regulation, facilitate entitlement to service. Rather, financial
31–February 1, 2003 Board of Directors compliance and aid LSC in enforcement eligibility is merely a threshold question
meeting at which the Draft Final Rule of the regulation; and clarification of the and the issue of whether any otherwise
was scheduled to be considered, LSC focus of the regulation on the financial eligible applicant will be provided with
received a request from Representative eligibility of applicants for LSC-funded legal assistance is a matter for the
James Sensenbrenner, Chairman of the legal services as an issue separate from recipient to determine with reference to
U.S. House of Representatives Judiciary decisions on whether to accept a its priorities and resources. In addition,
Committee, to suspend action on the particular client for service. In this part does not address eligibility
rulemaking pending the confirmation of particular, LSC is proposing to based on citizenship or alienage status;
new LSC Board of Directors members significantly reorganize and simplify the those eligibility requirements are set
appointed by President Bush. The then- sections of the rule which set forth the forth in Part 1626 of LSC’s regulations,
LSC Operations and Regulations various requirements relating to Restrictions on Legal Assistance to
Committee deferred to Chairman establishment of recipient annual Aliens.
Sensenbrenner’s request. After the income and asset ceilings, authorized
Section-by-Section Analysis
confirmation of the nine newly exceptions and determinations of
appointed Board members, the eligibility. These changes are intended Section 1611.1—Purpose
reconsitituted Operations and to clarify the regulation and include
LSC is proposing to revise this section
Regulations Committee further deferred substantive changes to make intake
to make clear that the standards of this
action on the rulemaking pending the simpler and less burdensome and
part concern only the financial
appointment of a new LSC President. render basic financial eligibility
eligibility of persons seeking LSC-
After the arrival of the new LSC determinations easier for recipients to
funded legal assistance and that a
President in January 2004, the make. LSC is also proposing to move the
finding of financial eligibility under Part
reconstituted Operations and existing provisions on group
1611 does not create an entitlement to
Regulations Committee resumed representation, with some amendment,
service. In addition, LSC proposes to
consideration of the Part 1611 to a separate section of the regulation.
remove the language in the current
rulemaking. Finally, LSC is proposing simplification
regulation referring to giving
At its meetings of May 1, 2004, June and clarification of the retainer
preferences to ‘‘those least able to obtain
5, 2004 and September 11, 2004, the agreement requirement.
legal assistance.’’ Although the original
Operations and Regulations Committee One other general issue merits
LSC Act contained language indicating
discussed and provided policy direction discussion. Section 509(h) of the FY
that recipients should provide
to staff on the two aspects of the 1996 LSC appropriations act, Public
preferences in service to the poorest
proposed changes to the regulations Law 104–134, provides that, among
among applicants, that language was
about which LSC and the field had other records, eligibility records ‘‘shall
deleted when the Act was reauthorized
failed to achieve consensus during the be made available to any auditor or
in 1977 and has remained out of the
Working Group meetings—retainer monitor of the recipient * * * except
legislation ever since. Moreover, section
agreements and group representation. for such records subject to the attorney-
504(a)(9) of the FY 1996 appropriations
The Committee reviewed these client privilege.’’ This provision has
act, Public Law 104–134 (incorporated
proposals and the remainder of the been retained in each subsequent
by reference in the current
proposed revisions to Part 1611 at its appropriations measure and continues
appropriations act and implemented by
meeting of April 1, 2005. At the meeting to be in force. During the prior stages of
regulation at 45 CFR part 1620) provides
of the full Board of Directors on April this rulemaking, there had been some
that recipients are to make service
30, 2005, upon the recommendation of discussion and consideration of having
determinations in accordance with
the Committee, the Board determined this language expressly incorporated
written priorities, which take into
that because two years has passed since into Part 1611. LSC continues to believe
account factors other than the relative
the publication of the November 2002 that, as 509(h) covers significantly more
poverty among applicants. Thus, as
NPRM, rather than adopting a final rule than eligibility records, having a full
there is no statutory basis for a
amending Part 1611, the most prudent discussion of the meaning of 509(h) in
preference for those least able to afford
course of action would be to republish the context of 1611, which addresses
assistance and because LSC believes
a revised NPRM for public comment. only financial eligibility issues, is not
that the regulation should focus on
Accordingly, except for the retainer appropriate. Accordingly, LSC does not
financial eligibility determinations
agreement and group eligibility sections, propose to include regulatory language
without reference to issues relating to
LSC is proposing the same revisions implementing 509(h) with respect to
determinations by a recipient to provide
(with only a few, non-substantive records covered by this Part. For a fuller
services to a particular applicant, such
differences) as LSC proposed in discussion of this issue, see the
language should be removed from the
November 2002 and requests public preamble to the November 22, 2002
regulation. LSC also proposes to add
comment thereon. NPRM, 67 FR 70376.
language specifying that this Part also
Proposed Revisions to Part 1611 Title of Part 1611
sets forth financial standards for groups
While specific proposed revisions are LSC proposes to change the title of seeking legal assistance supported by
discussed in greater detail in the Part 1611 from ‘‘Eligibility’’ to LSC funds. Finally, LSC proposes to
Section-by-Section analysis below, it ‘‘Financial Eligibility.’’ This proposed include a reference to the retainer
should be noted that the proposed change is intended, first, to make clear agreement requirement in the purpose
revisions reflect several overall goals of that with respect to individuals seeking section to provide a notice at the
the Working Group: reorganization of LSC-funded legal assistance, the beginning of the regulation that this
the regulation to make it easier to read standards of this part deal only with the subject is included in Part 1611.
and follow; simplification and financial eligibility of such persons. LSC
Section 1611.2—Definitions
streamlining of the requirements of the believes this change will help clarify
rule to ease administrative burdens that a finding of financial eligibility LSC proposes to add definitions for
faced by LSC recipients in under Part 1611 does not create an several terms and to amend the
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3. 29697
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definitions for each of the existing terms excluded from this definition, as the proposed language accomplishes that
currently defined in the regulation. LSC eligibility of groups would be addressed purpose.
believes that the new definitions and wholly within proposed section 1611.6.
Section 1611.2(e)—Brief Services
Recipients currently may provide
the amended definitions will help to
LSC proposes to add a definition of
legal assistance without regard to a
make the regulation more easily
the term ‘‘brief services’’ as it is used in
person’s financial eligibility under Part
comprehensible.
proposed section 1611.9, Retainer
1611 when the assistance is supported
Section 1611.2(a)—Advice and Counsel Agreements. LSC notes that brief
wholly by non-LSC funds. LSC does not
LSC proposes to add a definition of services is legal assistance characterized
propose to change this (in fact, LSC
the term ‘‘advice and counsel’’ as that primarily by being distinguishable from
proposes to restate this principle in
term appears in proposed section both extended service and advice and
proposed section 1611.4(a)) and believes
1611.9, Retainer Agreements. Under the counsel. Under the proposed defintion,
that the use of the term applicant as
proposed definition, ‘‘advice and brief service is the performance of a
proposed herein will help to clarify the
counsel’’ would be defined as limited application of the rule. discrete task (or tasks) which are not
legal assistance that involves the review incident to continuous representation in
Section 1611.2(d)—Assets
of information relevant to the client’s a case but which involve more than the
LSC proposes to add a definition of
legal problem(s) and counseling the mere provision of advice and counsel.
the term assets to the regulation. The
client on the relevant law or action(s) to Examples of brief services would
proposed definition, ‘‘cash or other
take to address the legal problem(s). LSC include activities such as the drafting of
resources that are readily convertible to
anticipates that advice and counsel documents or personalized assistance
cash, which are currently and actually
would generally be characterized by a with the completion of pleadings being
available to the applicant,’’ is intended
one-time or very short term relationship prepared and filed by pro se litigants,
to provide some guidance to recipients
between the attorney and the client. and making limited third-party contacts
as to what is meant by the term assets,
Advice and counsel does not encompass on behalf of a client in a short time
yet provide considerable latitude to
drafting of documents or making third- period.
recipients in developing a description of
party contacts on behalf of the client.
Section 1611.2(f)—Extended Service
assets that addresses local concerns and
Thus, for example, advising a client of
conditions. The key concepts intended
what notice a landlord is required to LSC proposes to add a definition of
in this definition are (1) ready
provide to a tenant before evicting the the term ‘‘extended service’’ as that term
convertibility to cash; and (2)
tenant would fall under ‘‘advice and is used in proposed section 1611.9,
availability of the resource to the
counsel,’’ but making a phone call to a Retainer Agreements. As defined,
applicant.
landlord to prevent the landlord from extended service would mean legal
Although the term is not defined in
evicting a tenant would not be assistance characterized by the
the regulation, current section 1611.6(c)
considered ‘‘advice and counsel.’’ performance of multiple tasks incident
states that ‘‘assets considered shall to continuous representation in which
Section 1611.2(b)—Applicable Rules of include all liquid and non-liquid assets. the recipient undertakes responsibility
Professional Responsibility * * *’’ The intent of this requirement is for protecting or advancing the client’s
that recipients are supposed to consider
LSC proposes to add a definition of interests beyond advice and counsel or
all assets upon which the applicant
the term ‘‘applicable rules of brief services. Examples of extended
could draw in obtaining private legal
professional responsibility’’ as that term service would include representation of
assistance. While there was no intent to
appears in proposed sections 1611.8, a client in litigation, administrative
change the underlying requirement, in
Change in Financial Eligibility Status adjudicative proceeding, alternate
discussing the issues of assets and asset
and 1611.9, Retainer Agreements. This dispute resolution proceeding, or
ceilings in the Working Group it became
definition is intended to make clear that extended negotiations with a third
apparent that the terms ‘‘liquid’’ and
the references in the regulation refer to party.
‘‘non-liquid’’ were obscuring
the rules of ethics and professional
Section 1611.2(f)—Governmental
understanding of the regulation. To
responsibility applicable to attorneys in
Program for Low Income Individuals or
some, the term ‘‘non-liquid’’ implied
the jursidiction where the recipient
Families
something not readily convertible to
either provides legal services or
cash, while to others the term implied
maintains its records. LSC proposes to change the term that
an asset that was simply something is used in the regulation from
Section 1611.2(c)—Applicant other than cash, without regard to the ‘‘governmental program for the poor’’ to
Consistent with the intention ease of converting the asset to cash. ‘‘governmental program for low income
throughout to keep the focus of the Thus, the Working Group decided that individuals and families.’’ This change
regulation on the standards and criteria the terms ‘‘liquid’’ and ‘‘non-liquid’’ is not intended to create any substantive
for determining the financial eligibility should be eliminated and that the change in the current definition, but
of persons seeking legal assistance regulation should focus instead on the merely reflect preferred nomenclature.
supported with LSC funds, LSC ready convertibility of the asset to cash.
Section 1611.2(g)—Governmental
proposes to use the term ‘‘applicant’’ The other key concept in the
Program for Persons With Disabilities
throughout the regulation to emphasize definition of asset is the availability of
the distinction between applicants, the resource to the applicant. Although LSC is proposing to add a definition
clients, and persons seeking or receiving the current regulation notes that the of the term ‘‘governmental program for
assistance supported by other than LSC recipient’s asset guidelines ‘‘shall take persons with disabilities.’’ LSC proposes
funds. Accordingly, LSC proposes to into account impediments to an to include in the authorized exceptions
add a definition of applicant providing individual’s access to assets of the to the annual income ceilings an
that an applicant is an individual family unit or household,’’ the Working exception relating to applicants seeking
seeking legal assistance supported with Group was of the opinion that this to obtain or maintain govermental
LSC funds. Groups, corporations and principle could be more clearly benefits for persons with disabilities.
associations would be specifically articulated. LSC believes that the Accordingly, it is appropriate to include
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4. 29698 Federal Register / Vol. 70, No. 99 / Tuesday, May 24, 2005 / Proposed Rules
a proposed definition for this term. The applicant, LSC does not believe that the from the definition of total cash
definition of income is the appropriate receipts. It is worth noting that the list
proposed definition, ‘‘any Federal, State
place in the regulation to deal with this of items included is not intended to be
or local program that provides benefits
issue. exhaustive, while the list of items to be
of any kind to persons whose eligibility
Taking the phrase ‘‘before taxes’’ out excluded is intended to be exhaustive.
is determined on the basis of mental
of the definition of income would Finally, LSC wishes to restate in this
and/or physical disability,’’ is intended
effectively change the meaning of preamble guidance on the treatment of
to be similar in structure and
income from gross income to net Indian trust fund monies in making
application to the definition of the term
income. The term income has meant income determinations. Several
‘‘governmental program for low income
gross income since the original adoption provisions of Federal law regulate
individuals and families.’’
of the financial eligibility regulation in whether or not income or interests in
Section 1611.2(h)—Income 1976. See 41 FR 51604, at 51606, Indian trusts are taxable or should be
LSC proposes to revise the current November 23, 1976. The maximum considered as resources or income for
definition of income to refer to the total income guidelines are based on the Federal benefits. See 25 U.S.C. 1407–
Department of Health and Human 1408; 25 U.S.C. 117a–117c. Under the
cash receipts of a ‘‘household,’’ instead
Services (DHHS) Federal Poverty terms of those laws, LSC has determined
of a ‘‘family unit’’ and to make clear that
Guidelines amounts. DHHS’ Federal that recipients may disregard up to
recipients have the discretion to define
Poverty Guidelines are, by law, based on $2000 per year of funds received by
the term household in any reasonable
the Census Bureau’s Federal Poverty individual Native Americans that are
manner. Currently, the definition of
Thresholds, which are calculated using derived from income or interests in
income refers to ‘‘family unit,’’ while
gross income before taxes. 42 U.S.C. Indian trusts from being considered
the phrase ‘‘household or family unit’’
9902(2); Office of Management and income for the purpose of determining
appears in the section on asset ceilings.
Budget Directive No. 14 (May 1978). financial eligibility of Native American
It appears that there is no difference
Changing the definition of income applicants for service, and that such
intended by the use of different terms in
effectively from gross to net would funds or interests of individual Native
these sections and LSC believes that it
introduce two different uses of the term Americans in trust or restricted lands
is appropriate to simplify the regulation
income into the regulations (one use in should not be considered as a resource
to use the same single term in each
the income guidelines published for the purpose of LSC financial
provision, without creating a
annually by LSC in Appendix A to Part eligibility. See LSC Office of Legal
substantive change in the meaning of
1611 and another use in the text of the Affairs External Opinion 99–17, August
either term. LSC proposes to use
regulation). This would have significant 27, 1999.
‘‘household’’ instead of ‘‘family unit’’
As noted in External Opinion 99–17,
repercussions in the application of the
because it is a simpler, more
the exclusion applies only to funds and
regulation. LSC believes that this action
understandable term.
other interests held in trust by the
would cause greater confusion. None of
As noted above, LSC does not intend
Federal government and investment
the comments previously received
the use of the term ‘‘household’’ to have
income accrued therefrom. The
supporting removal of ‘‘before taxes’’
a different meaning from the current
following have been found to qualify for
from the definition of income address
term ‘‘family unit.’’ Under current
the exclusion from income in
this issue. Moreover, LSC believes that
guidance from the LSC Office of Legal
determining eligibility for various
the practical problem (that taxes,
Affairs, recipients have considerable
government benefits: income from the
indeed, are funds unavailable to the
latitude in defining the term ‘‘family
sale of timber from land held in trust;
applicant), is better addressed by
unit.’’ Specifically, OLA External
income derived from farming and
considering taxes as a separate factor
Opinion No. EX–2000–1011 states:
ranching operations on reservation land
which can be considered by the
Neither the LSC Act nor the LSC
held in trust by the Federal government;
recipient in making financial eligibility
regulations define ‘‘family unit’’ for client
income derived from rentals, royalties,
determinations. LSC invites comment
eligibility purposes. The Corporation will
and sales proceeds from natural
on this issue. This matter is presented
defer to recipient determinations on this
resources of land held in trust; sales
in greater detail in the discussion of
issue, within reason. Recipients may
proceeds from crops grown on land held
proposed section 1611.5, below.
consider living arrangements, familial
relationships, legal responsibility, financial In addition, LSC proposes to move the in trust; and use of land held in trust for
responsibility or family unit definitions used information on what is encompassed by grazing purposes. On the other hand,
by government benefits agencies, amongst the term ‘‘total cash receipts’’ into the per capita distributions of revenues
other factors, in making such decisions. definition of income. LSC believes that from gaming activity on tribal trust
LSC intends that this standard would having this information in the definition property are not protected because such
also apply to definitions of ‘‘household’’ of income, rather than in a separate funds are not held in trust by the
and the proposed definition would definition will make the regulation Federal government. Thus, such
make this clear. easier to understand, particularly as the distributions are considered to be
Field representatives on the Working term ‘‘total cash receipts’’ is used only income for purposes of determining LSC
Group and several comments on the in the definition of income. In financial eligibility.
November 2002 NPRM also suggested incorporating the language on ‘‘total
Total Cash Receipts
deleting the words ‘‘before taxes’’ from cash receipts,’’ LSC proposes to take the
the definition of income. Such a change LSC proposes to delete the definition
current definition of the term without
is desirable, they contend, because of ‘‘total cash reciepts,’’ currently at
any substantive amendment, but
automatically deducted taxes are not section 1611.2(h), as a separately
reorganized to make it easier to
available for an applicant’s use and the defined term in the regulation. Rather,
understand. Specifically, LSC proposes
failure to take current taxes into account LSC proposes to reorganize the
to separate the definition into two
in determining income has an adverse information contained in the definition
sentences, one of which sets forth those
impact on the working poor. While it is things which are included in total cash and move it directly into the definition
undoubtedly true that automatically receipts and one which sets forth those of ‘‘income.’’ As noted above, the only
deducted taxes are not available to an things which are specifically excluded place the term ‘‘total cash reciepts’’ is
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5. 29699
Federal Register / Vol. 70, No. 99 / Tuesday, May 24, 2005 / Proposed Rules
used is in the defintion of ‘‘income’’ and In establishing income and asset or other assets that may not be attached
LSC believes that having a separate ceilings, the recipient would have to for the satisfaction of a debt, etc.
There was discussion within the
definition for ‘‘total cash reciepts’’ is consider the cost of living in the
Working Group about the appropriate
cumbersome and unnecessary. locality; the number of clients who can
scope of this provision. Field
be served by the resources of the
Section 1611.3—Financial Eligibility representatives suggested that the list of
recipient; the potentially eligible
Policies exclusions should be illustrative, and
population at various ceilings; and the
LSC proposes to create a new section not exhaustive, allowing recipients
availability of other sources of legal
1611.3, Financial Eligibility Policies, greater discretion in developing asset
assistance. With respect to assets of
based on requirements currently found ceilings. Four of the comments LSC
domestic violence victims jointly held
in sections 1611.5(a), 1611.3(a)–(c) and received on the November 2002 NPRM
with their abusers, this requirement
1611.6. The new section 1611.3 would agreed with the suggestion that the list
applies when the applicant has made
address in one section recipients’ should be illustrative rather than
the recipient aware that he or she is a
responsibilities for adopting and exhaustive. LSC, however, prefers to
victim of domestic violence.
implementing financial eligibility In addition, LSC proposes to permit retain the approach in the current
policies. Under the proposed new recipients to adopt financial eligibility regulation in which the list of
section, the current requirement that policies which provide for authorized excludable assets is set forth in toto.
recipients’ governing bodies have to exceptions to the annual income ceiling LSC believes that this approach
adopt policies for determining financial pursuant to proposed section 1611.5 emphasizes the policy that most assets
eligibility would be retained. LSC and for waiver of the asset ceiling for an are to be considered and maintains a
proposes, however, to change the applicant in a particular case under basic level of consistency nationally
current requirement for an annual unusual circumstances and when with respect to this issue. However, LSC
review of these policies and instead approved by the Executive Director or does agree that the regulation could
require recipients’ governing bodies to his/her designee. Finally, LSC proposes afford recipients some additional
conduct triennial reviews of policies. to permit recipients to adopt financial flexibility in developing asset ceilings,
The Working Group agreed that an eligibility policies which permit consistent with the policy articulated
annual review was unnecessary and has financial eligibility to be established by above. The Working Group believes that
tended to result in rather pro forma reference to an applicant’s receipt of the proposed language meets those
reviews of policies. In contrast, a benefits from a governmental program objectives, particularly in light of the
triennial review requirement would be for low-income individuals or families proposed amendment to the asset
sufficient to ensure that financial consistent with proposed section ceiling waiver standard discussed
eligibility policies remain relevant and 1611.4(b). below. LSC invites comment on whether
These proposed provisions are, with
would encourage a more thorough and the list should be illustrative or
two exceptions, based directly on
thoughtful review when such review is exhaustive. LSC also invites comment
current requirements with a few on whether additional specific assets
undertaken. The section would also add
substantive changes. First among the should be included in the list of
an express requirement that recipients
changes, recipients would no longer be excludable assets and, if so, what items
adopt implementing procedures. While
required to routinely submit their asset might be appropriate.
this is already implicit in the current
ceilings to LSC. This requirement LSC is also proposing to change the
regulation, LSC believes it would be
appears to serve little or no purpose, as asset ceiling waiver standard slightly.
better for this requirement to be
compliance with this requirement has The current regulation permits waiver
expressly stated. Such implementing
been spotty and LSC has taken no action in ‘‘unusual or extremely meritorious
procedures could be adopted either by
to obtain the information from situations;’’ the proposed rule would
a recipient’s governing body or by the
recipients which have not automatically permit waiver in ‘‘unusual
recipient’s management.
submitted it. Moreover, the information circumstances.’’ The Working Group
Proposed section 1611.3 would also
collected is not being put to any routine determined that the current language is
contain certain minimum requirements
use. In addition, LSC has not had a unnecessarily stringent and that it is
for the content of recipient’s financial
parallel requirement for the submission unclear what the difference is intended
eligibility policies. Specifically, LSC
of income ceilings. The Working Group to be between ‘‘unusual’’ and
proposes that the recipient’s financial
determined that this requirement could ‘‘extremely meritorious.’’ It was
eligibility policy must:
• Specify that only applicants for be eliminated without any adverse effect suggested in the Working Group that the
on program compliance with or standard should be ‘‘where
service determined to be financially
Corporation enforcement of the appropriate.’’ LSC, however, felt that the
eligible under the policy may be further
regulation. regulation should continue to reflect the
considered for LSC-funded service;
• Establish annual income ceilings of Another substantive change is that policy that waivers of the asset ceilings
recipients would be permitted to should only be granted sparingly and
no more than 125% of the current
provide in their financial eligibility not as a matter of course. The Working
DHHS Federal Poverty Guidelines
policies for the exclusion of (in addition Group agreed that the revised language
amounts;
• Establish asset ceilings; and to a primary residence, as provided for accomplishes this goal, while providing
• Specify that, notwithstanding any in the existing regulation) vehicles, some additional appropriate discretion
other provisions of the regulation or the assets used in producing income (such to recipients. In addition, where the
recipient’s financial eligibility policies, as a farmer’s tractor or a carpenter’s current rule requires all waiver
in assessing the financial eligibility of tools) and other assets excluded from decisions to be made by the Executive
an individual known to be a victim of attachment under State or Federal law Director, LSC proposes to permit those
domestic violence, the recipient shall from the calculation of assets. In decisions to be made by the Executive
consider only the income and assets of identifying other assets excluded from Director or his/her designee. LSC
the individual applicant and shall not attachment under State or Federal law, believes it is important that a person in
consider any assets jointly held with the LSC has in mind assets that are significant authority be involved in
abuser. excluded from bankruptcy proceedings making asset ceiling waiver decisions,
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6. 29700 Federal Register / Vol. 70, No. 99 / Tuesday, May 24, 2005 / Proposed Rules
but recognizes that, especially as more applicant to be financially eligible if the benefits for low-income individuals and
recipients have consolidated and now applicant’s assets are at or below the families, eligibility for which includes
serve larger areas, it is important for recipient’s applicable asset ceiling level an asset test. Key to this practice is that
recipients to have the discretion to (or the ceiling has been properly the recipient’s governing body has to
delegate certain authority to regional or waived) and the applicant’s income is at take some identifiable action to
branch office managers or directors to or below the recipient’s applicable recognize the asset test of the
increase administrative efficiency. income ceiling, or if one or more of the governmental benefit program being
The first totally new element is the authorized exceptions to the ceiling relied upon. This ensures that the
proposed language regarding victims of applies. These provisions are based on eligibility standards of the govermental
domestic violence. This proposal existing provisions found in sections program have been carefully considered
implements LSC’s FY 1998 1611.3, 1611.4 and 1611.6. As revised, and are incorporated into the overall
appropriations law. Specifically, section the new provisions do not represent a financial eligibility policies adopted and
506 of that act provides: substantive change, but LSC believes regularly reviewed by the recipient’s
having the basic statements as to who governing body. As this practice has
In establishing the income or assets of an
may be found to be financially eligible proved efficient and effective, it was
individual who is a victim of domestic
for assistance in one section makes the
violence, under section 1007(a)(2) of the determined that a parallel process could
Legal Services Corporation Act (42 U.S.C. regulation much clearer. In addition, also be adopted for income screening
2996f(a)(2)), to determine if the individual is where the existing regulation uses a and that these practices should be
eligible for legal assistance, a recipient construction that speaks to when a expressly included in the regulations. It
described in such section shall consider only
recipient may provide legal assistance, is important to note that this provision
the assets and income of the individual and
the proposed new language emphasizes would only apply to applicants whose
shall not include any jointly held assets.
the point that the requirements speak sole source of income is derived from
Although this law has been in effect only to determinations of financial such benefits. Applicants who also have
since 1997, it has never been formally eligibility and not to decisions regarding income derived from other sources
incorporated into Part 1611. This whether or not to actually provide legal would be subject to an independent
provision of law applies regardless of assistance. inquiry and assessment of financial
whether it appears in the regulation. LSC also proposes to incorporate into eligibility.
However, incorporating this language this section a significant substantive
Finally, in the November 2002 NPRM,
into the regulation is appropriate, change to the regulation. Consistent
LSC proposed to include in this section
particularly in light of the goal of this with proposed section 1611.3 as
a provision requiring recipients to make
rulemaking to clarify the requirements discussed above, if adopted, the
reasonable inquiry into an applicant’s
relating to financial eligibility regulation would permit recipients to
financial status in making financial
determinations. determine an applicant to be financially
eligibility determinations. Upon
Finally, the proposal to permit eligible because the applicant’s income
reflection, LSC believes that this
recipients to adopt financial eligibility is derived solely from a governmental
requirement is better included in
policies which permit financial program for low-income individuals or
proposed section 1611.7, Manner of
eligibility to be established by reference families, provided that the recipient’s
Determining Financial Eligibility and
to an applicant’s receipt of benefits from governing body has determined that the
has moved this proposal to that section.
a governmental program for low-income income standards of the governmental
For a detailed discussion of this issue,
individuals or families consistent with program are at or below 125% of the
see the discussion of proposed section
proposed section 1611.4(b) is also new. Federal Poverty Guidelines amounts.
1611.7, below.
This proposal is discussed in greater For many recipients, a significant
detail below. proportion of applicants rely on Section 1611.5—Authorized Exceptions
governmental benefits for low-income to the Annual Income Ceiling
Section 1611.4—Financial Eligibility for
individuals and families as their sole
Legal Assistance This proposed section provides for
source of income. In order to qualify for
This proposed section would set forth authorized exceptions to the annual
these benefits, such persons have
the basic requirement that recipients income ceiling. The proposed language,
already been screened by the agency
may provide legal assistance supported like the current language of sections
providing the benefits (using an
with LSC funds only to those 1611.4 and 1611.5, on which it is based,
eligibility determination process that is
individuals whom the recipient has is permissive. A recipient would be at
stricter than the one required under LSC
determined are financially eligible for liberty to include some, none, or all of
regulations) and determined to be
such assistance pursuant to their the authorized exceptions discussed
financially eligible for those benefits. In
policies, consistent with this Part. This below in its financial eligibility policies.
Working Group discussions, many
section also contains a proposed Thus, to the extent a recipient would
representatives of the field noted that if
statement that nothing in Part 1611 choose to avail itself of the authority
they could rely on the determinations
prohibits a recipient from providing provided in this proposed section, a
made by these agencies without having
legal assistance to an individual without recipient would be permitted to
to otherwise make an independent
regard to that individual’s income and determine an applicant to be financially
inquiry into financial eligibility, it
assets if the legal assistance is supported eligible for assistance, notwithstanding
would substantially ease the
wholly by funds from a source other that the applicant’s income is in excess
administrative burden involved in
than LSC (regardless of whether LSC of the recipient’s applicable income
making financial eligibility
funds were used as a match to obtain ceiling. In making such determinations,
determinations.
such other funds, as is the case with however, the recipient would have to
The Working Group also noted that
Title III or VOCA grant funds) and the detemine that the applicant’s assets
current LSC practice permits recipients
assistance is otherwise permissible were at or below the recipient’s
to determine that an applicant’s assets
under applicable law and regulation. are within the recipient’s asset ceiling applicable asset ceiling (or the ceiling
This proposed section would further level without additional review if the would have had to have been waived).
provide that a recipient may find an applicant is receiving governmental This requirement is consistent with the
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