1. 45545
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EPA APPROVED REGULATIONS IN THE TEXAS SIP—Continued
State ap-
State citation Title/subject proval/sub- EPA approval date Explanation
mittal date
* * * * * * *
Subchapter C—Vehicle Inspection and Maintenance; Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement
Program; and Early Action Compact Counties
Division 3: Early Action Compact Counties
Section 114.80 ...... Applicability ................................... 11/17/04 8/8/05 [Insert FR page number
where document begins].
Section 114.81 ...... Vehicle Emissions Inspection Re- 11/17/04 8/8/05 [Insert FR page number
quirements. where document begins].
Section 114.82 ...... Control Requirements ................... 11/17/04 8/8/05 [Insert FR page number Subsection 114.82(b) is NOT part
where document begins]. of the approved SIP.
Section 114.83 ...... Waivers and Extensions ............... 11/17/04 8/8/05 [Insert FR page number
where document begins].
Section 114.84 ...... Prohibitions ................................... 11/17/04 8/8/05 [Insert FR page number
where document begins].
Section 114.85 ...... Equipment Evaluation Procedures 11/17/04 8/8/05 [Insert FR page number
for Vehicle Exhaust Gas Ana- where document begins].
lyzers.
Section 114.86 ...... Low Income Repair Assistance 11/17/04 8/8/05 [Insert FR page number
Program (LIRAP) for Partici- where document begins].
pating Early Action Compact
Counties.
Section 114.87 ...... Inspection and Maintenance Fees 11/17/04 8/8/05 [Insert FR page number
where document begins].
* * * * * * *
Section Part 1611 (67 FR 70376).1 Futher action
[FR Doc. 05–15607 Filed 8–5–05; 8:45 am] SUPPLEMENTARY INFORMATION:
on the rulemaking was suspended, in
1007(a) of the Legal Services
BILLING CODE 6560–50–P
deference to a request by Representative
Corporation Act requires LSC to
James Sensenbrenner, Chairman of the
establish guidelines, including setting
U.S. House of Representatives Judiciary
maximum income levels, for the
LEGAL SERVICES CORPORATION
Committee, that LSC suspend action on
determination of applicants’ financial
the rulemaking pending the
45 CFR Part 1611 eligibility for LSC-funded legal
confirmation of new LSC Board of
assistance. Part 1611 implements this
Financial Eligibility Directors members appointed by
provision, setting forth the requirements
President Bush.
Legal Services Corporation. relating to determination and
AGENCY:
After the confirmation of nine new
Final rule. documentation of client financial
ACTION:
board members and the appointment of
eligibility. Part 1611 also sets forth a new LSC President, the reconstituted
SUMMARY: The Legal Services
requirements related to client retainer Operations and Regulations Committee
Corporation (‘‘LSC’’ or ‘‘Corporation’’) is
agreements. resumed consideration of the Part 1611
amending its regulations relating to
rulemaking in early 2004. At the
financial eligibility for LSC-funded legal Procedural Background
meeting of the full Board of Directors on
services and client retainer agreements.
April 30, 2005, the Board approved the
On June 30, 2001, LSC initiated a
The revisions are intended to reorganize
republication of a revised NPRM for
Negotiated Rulemaking and appointed a
the regulation to make it easier to read
public comment. That NPRM was
Working Group comprised of
and follow; simplify and streamline the
published on May 24, 2005 (70 FR
requirements of the rule to ease representatives of LSC (including the
29695).
administrative burdens faced by LSC Office of Inspector General), the
LSC received thirteen (13) comments
recipients in implementing the National Legal Aid and Defenders
on the NPRM, including nine comments
regulation and to aid LSC in Association, the Center for Law and
from individual LSC grant recipients,
enforcement of the regulation; and to Social Policy, the American Bar
one comment from a senior attorney
clarify the focus of the regulation on the Association’s Standing Committee on
with a recipient commenting in his
financial eligibility of applicants for Legal Aid and Indigent Defendants and personal capacity, one comment from a
LSC-funded legal services. a number of individual LSC recipient member of the public, and comments
DATES: This final rule is effective programs. The Negotiated Rulemaking from the Center for Law and Social
September 7, 2005. Working Group met three times Policy on behalf of the National Legal
FOR FURTHER INFORMATION CONTACT: throughout 2002 and developed a Draft Aid and Defenders Association, and the
Mattie C. Condray, Senior Assistant Notice of Proposed Rulemaking (NPRM) American Bar Association’s Standing
General Counsel, Office of Legal Affairs, which was the basis for the NPRM Committee on Legal Aid and Indigent
Legal Services Corporation, 3333 K. St., published by LSC on November 22,
NW., Washington, DC 20007–3522; 2002 proposing significant revisions to 1 For additional discussion of the Negotiated
(202) 295–1624 (phone); (202) 337–6519 Rulemaking Working Group, see 67 FR 70376
(fax); mcondray@lsc.gov. (e-mail). (November 22, 2002).
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2. 45546 Federal Register / Vol. 70, No. 151 / Monday, August 8, 2005 / Rules and Regulations
Defendants. With minor exceptions merely a threshold question and the that this Part also sets forth financial
(discussed in greater detail below), the issue of whether any otherwise eligible standards for groups seeking legal
commenters strongly supported the applicant will be provided with legal assistance supported by LSC funds.
proposed revisions. Upon receipt of the assistance is a matter for the recipient to Finally, LSC is adding a reference to the
comments, LSC prepared a Draft Final determine with reference to its priorities retainer agreement requirement in the
Rule discussing the comments and and resources. In addition, this part purpose section to provide a notice at
making permanent the proposed does not address eligibility based on the beginning of the regulation that this
revisions. The Draft Final Rule was citizenship or alienage status; those subject is included in Part 1611. LSC
considered by the Operations and eligibility requirements are set forth in received several comments specifically
Regulations Committee of the Board of supporting and no comments objecting
Part 1626 of LSC’s regulations,
Directors at its meeting of July 28, 2005, to these changes. LSC adopts the
Restrictions on Legal Assistance to
and the Final Rule was adopted by the revisions as proposed.
Aliens. Finally, LSC received one
Board of Directors at its meeting of July comment suggesting that because this Section 1611.2—Definitions
30, 2005. Part contains LSC’s requirements
LSC is adding definitions for several
pertaining to when and how recipients
Revisions to Part 1611 terms and amending the definitions for
must execute retainer agreements with
While specific revisions are discussed each of the existing terms currently
clients (a subject not directly related to
in greater detail in the Section-by- defined in the regulation. LSC believes
financial eligibility determinations), that
Section analysis below, it should be that the new definitions and the
the title of this Part should refer to
noted that the revisions reflect several amended definitions will help to make
retainer agreements. While the
overall goals of the original Negotiated the regulation more easily
requirements for retainer agreements are
Rulemaking Working Group: comprehensible.
included in this Part, it primarily
Reorganization of the regulation to make addresses financial eligibility and LSC Section 1611.2(a)—Advice and Counsel
it easier to read and follow; disagrees that retainer agreements
LSC is adding a definition of the term
simplification and streamlining of the should be specifically included in the
‘‘advice and counsel’’ as that term
requirements of the rule to ease title of this Part.
appears in proposed section 1611.9,
administrative burdens faced by LSC
Retainer Agreements. Under the new
Section-by-Section Analysis
recipients in implementing the
definition, ‘‘advice and counsel’’ is
regulation, facilitate compliance and aid Section 1611.1—Purpose
defined as limited legal assistance that
LSC in enforcement of the regulation;
LSC is revising this section to make involves the review of information
and clarification of the focus of the
clear that the standards of this part relevant to the client’s legal problem(s)
regulation on the financial eligibility of
concern only the financial eligibility of and counseling the client on the
applicants for LSC-funded legal services
persons seeking LSC-funded legal relevant law or action(s) to take to
as an issue separate from decisions on
assistance and that a finding of financial address the legal problem(s). Advice
whether to accept a particular client for
eligibility under Part 1611 does not and counsel does not encompass
service. In particular, LSC is
create an entitlement to service. In drafting of documents or making third-
significantly reorganizing and
addition, LSC is removing the language party contacts on behalf of the client.
simplifing the sections of the rule which
in the current regulation referring to Thus, for example, advising a client of
set forth the various requirements
giving preferences to ‘‘those least able to what notice a landlord is required to
relating to establishment of recipient
obtain legal assistance.’’ Although the provide to a tenant before evicting the
annual income and asset ceilings,
original LSC Act contained language tenant would fall under ‘‘advice and
authorized exceptions and
indicating that recipients should counsel,’’ but making a phone call to a
determinations of eligibility. These
provide preferences in service to the landlord to prevent the landlord from
changes are intended to clarify the
poorest among applicants, that language evicting a tenant would not be
regulation and include substantive
was deleted when the Act was considered ‘‘advice and counsel.’’
changes to make intake simpler and less
reauthorized in 1977 and has remained Several commenters specifically
burdensome and render basic financial
out of the legislation ever since. supported this proposed definition, and
eligibility determinations easier for
Moreover, section 504(a)(9) of the FY no commenters opposed the proposed
recipients to make. LSC is also moving
1996 appropriations act, Public Law definition. Accordingly, LSC adopts the
the existing provisions on group
104–134 (incorporated by reference in definition as proposed.
representation, with some amendment,
the current appropriations act and Three of the commenters who
to a separate section of the regulation.
implemented by regulation at 45 CFR specifically supported this proposed
Finally, LSC is simplifying and
Part 1620) provides that recipients are to definition did express a concern,
clarifying the retainer agreement
make service determinations in however, about the statement in the
requirement.
accordance with written priorities, preamble to the NPRM in which LSC
Title of Part 1611 which take into account factors other stated that LSC anticipates that advice
LSC is changing the title of Part 1611 than the relative poverty among and counsel will generally be
from ‘‘Eligibility’’ to ‘‘Financial applicants. Thus, as there is no statutory characterized by a one-time or very
Eligibility.’’ This change is intended, basis for a preference for those least able short term relationship between the
first, to make clear that with respect to to afford assistance and because LSC attorney and the client. These
individuals seeking LSC-funded legal believes that the regulation should focus commenters noted that there are any
assistance, the standards of this part on financial eligibility determinations number of situations in which a
deal only with the financial eligibility of without reference to issues relating to recipient attorney has to do some
such persons. LSC believes this change determinations by a recipient to provide research in order to properly advise a
will help clarify that a finding of services to a particular applicant, LSC client or in which the attorney provides
financial eligibility under Part 1611 has determined that such language advice and counsel to a client on a
does not create an entitlement to should be removed from the regulation. limited number of occasions, but over a
service. Rather, financial eligibility is LSC is also adding language specifying somewhat extended period of time.
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3. 45547
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These commenters suggested deleting the financial eligibility of persons the terms ‘‘liquid’’ and ‘‘non-liquid’’
any reference to an anticipated time seeking legal assistance supported with should be eliminated and that the
period in relation to the intended LSC funds, LSC has decided to use the regulation should focus instead on the
meaning of ‘‘advice and counsel.’’ term ‘‘applicant’’ throughout the ready convertibility of the asset to cash.
The use of the word ‘‘generally’’ in The other key concept in the
regulation to emphasize the distinction
the sentence the commenters objected to definition of asset is the availability of
between applicants, clients, and persons
was intended to convey that LSC is the resource to the applicant. Although
seeking or receiving assistance
aware that there are circumstances in the current regulation notes that the
supported by other than LSC funds.
which a case would qualify as ‘‘advice recipient’s asset guidelines ‘‘shall take
Accordingly, LSC is adding a definition
and counsel’’ notwithstanding that the into account impediments to an
of applicant providing that an applicant
advice and counsel may be provided individual’s access to assets of the
is an individual seeking legal assistance
over a somewhat extended time period. family unit or household,’’ the Working
supported with LSC funds. Groups,
Nonetheless, it is the case that many, if Group was of the opinion that this
corporations and associations are
not most, advice and counsel cases principle could be more clearly
specifically excluded from this
involve a short-term relationship articulated. LSC believes that the
definition, as the eligibility of groups is
between the attorney and the client. proposed language accomplishes that
addressed wholly within section 1611.6.
Even if the attorney must do some Recipients currently may provide purpose.
LSC received numerous comments
research prior to providing advice, LSC legal assistance without regard to a
specifically supporting the proposed
does not expect that the need to do person’s financial eligibility under Part
definition of assets. LSC, however, also
research will create a relationship 1611 when the assistance is supported
received one comment expressing
which extends for a significant period of wholly by non-LSC funds. LSC is not
concern that defining assets as resources
time in most cases. Indeed, part of the changing this (in fact, this principle is
‘‘readily convertible to cash’’ could
justification for exempting advice and restated in section 1611.4(a)) and
preclude recipients from deeming all
counsel cases from the retainer believes that the use of the term
non-primary residence real estate as an
agreement requirement has been the fact applicant as adopted herein will help to
asset and require a more lengthy inquiry
that such relationships are of generally clarify the application of the rule.
LSC received no comments objecting into the property’s ready convertibility
short duration, such that requiring the
to these changes and adopts the to cash. LSC notes at the outset that
recipient to ensure an executed retainer
revisions as proposed. under the current rules, recipients are
agreement is obtained may take longer
already required to ‘‘take into account
than the time it takes for the attorney to Section 1611.2(d)—Assets
impediments’’ to access to the
provide the advice and counsel to the
LSC is adding a definition of the term resources. Thus, to the extent that the
client. If, instead, it was the case that
assets to the regulation. The new monetary value of a particular
advice and counsel cases typically last
definition, ‘‘cash or other resources that applicant’s real property is not available
for a long time, the opportunity to
are readily convertible to cash, which to an applicant, recipients should
obtain retainer agreements would not be
are currently and actually available to already be taking that inaccessibility
lacking. Thus, LSC continues to
the applicant,’’ is intended to provide into account in reviewing the
anticipate that in most cases ‘‘advice
some guidance to recipients as to what applicant’s resources. Nonetheless, LSC
and counsel’’ will be characterized by a
is meant by the term assets, yet provide believes that recipients currently have
one-time or short term relationship
considerable latitude to recipients in sufficient discretion to establish a
between the attorney and the client, but
developing a description of assets that rebuttable presumption that an
recognizes that this may not always be
addresses local concerns and applicant’s non-primary residence real
the case. Whether a particular case
conditions. The key concepts intended property is a resource readily
meets the definition of ‘‘advice and
in this definition are (1) ready convertible to cash and countable
counsel’’ or not will continue to be
convertibility to cash; and (2) toward the recipient’s asset ceiling and
determined on a case-by-case basis,
availability of the resource to the also to determine that a particular piece
considering the facts and circumstances.
applicant. of property is not readily convertible to
Section 1611.2(b)—Applicable Rules of Although the term is not defined in cash and, as such, should not be
Professional Responsibility the regulation, current section 1611.6(c) considered a resource available to the
states that ‘‘assets considered shall
LSC is adding a definition of the term applicant for the purpose of the asset
include all liquid and non-liquid assets
‘‘applicable rules of professional ceiling. Nothing in the rule being
* * *’’ The intent of this requirement is
responsibility’’ as that term appears in adopted today disturbs that discretion.
that recipients are supposed to consider
proposed sections 1611.8, Change in Accordingly, LSC adopts the definition
all assets upon which the applicant
Financial Eligibility Status and 1611.9, as proposed.
could draw in obtaining private legal
Retainer Agreements. This definition is
Section 1611.2(e)—Brief Services
assistance. While there was no intent to
intended to make clear that the
change the underlying requirement, in LSC is adding a definition of the term
references in the regulation refer to the
discussing the issues of assets and asset ‘‘brief services’’ as it is used in section
rules of ethics and professional
ceilings in the Working Group it became 1611.9, Retainer Agreements. LSC notes
responsibility applicable to attorneys in
apparent that the terms ‘‘liquid’’ and that brief services is legal assistance
the jurisdiction where the recipient
‘‘non-liquid’’ were obscuring characterized primarily by being
either provides legal services or
understanding of the regulation. To distinguishable from both extended
maintains its records. LSC received no
some, the term ‘‘non-liquid’’ implied service and advice and counsel. Under
comments objecting to this definition
something not readily convertible to the new definition, brief service is the
and adopts the definition as proposed.
cash, while to others the term implied performance of a discrete task (or tasks)
Section 1611.2(c)—Applicant an asset that was simply something which are not incident to continuous
Consistent with the intention to keep other than cash, without regard to the representation in a case but which
the focus of the regulation on the ease of converting the asset to cash. involve more than the mere provision of
standards and criteria for determining Thus, the Working Group agreed that advice and counsel. Examples of brief
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4. 45548 Federal Register / Vol. 70, No. 151 / Monday, August 8, 2005 / Rules and Regulations
services include activities such as the LSC received one comment
Section 1611.2(g)—Governmental
specifically supporting the change from
Program for Persons With Disabilities
drafting of documents or personalized
‘‘household or family unit’’ to
assistance with the completion of LSC is adding a definition of the term
‘‘household.’’ This commenter
pleadings being prepared and filed by ‘‘governmental program for persons
suggested that the change would
pro se litigants, and making limited with disabilities.’’ LSC is including in
provide ‘‘more flexibility’’ to recipients.
third-party contacts on behalf of a client the authorized exceptions to the annual
LSC notes that the change in the
over, in most instances, a short time income ceilings an exception relating to
terminology used in the regulation in
period. applicants seeking to obtain or maintain
this instance is not creating any
govermental benefits for persons with
LSC received two comments substantive change. As noted above,
disabilities. Accordingly, it is
specifically supporting the proposed recipients already have considerable
appropriate to include a definition for
definition. LSC received one comment discretion and flexibility to determine
this term. The definition, ‘‘any Federal,
noting that the proposed definition does the scope of an applicant’s household;
State or local program that provides
not address the relative simplicity or the change in terminology being
benefits of any kind to persons whose
brevity of documents which may be adopted with this final rule neither
eligibility is determined on the basis of
drafted by a recipient within the scope increases nor decreases that discretion
mental and/or physical disability,’’ is
of brief service. This commenter was and flexibility. LSC adopts the change
intended to be similar in structure and
concerned that the definition was in terminology as proposed.
application to the definition of the term
contrary to the Case Service Reporting Throughout the course of the
‘‘governmental program for low income
(CSR) definition of ‘‘brief services.’’ This rulemaking field representatives have
individuals and families.’’ LSC received
commenter suggested changing the suggested deleting the words ‘‘before
no comments objecting to the proposed
definition or adding a statement that the taxes’’ from the definition of income.
definition and adopts the definition as
Five commenters reiterated this position
definition in the regulation should not proposed.
in comments on the NPRM, while one
apply to the CSR. LSC notes that this
Section 1611.2(h)—Income commenter specifically opposed
definition of ‘‘brief services’’ is, while
deleting ‘‘before taxes’’ from the
not identical, specifically intended to be LSC is revising the current definition
definition of income. Such a change is
fully consistent with the definition of of income to refer to the total cash
desirable, the proponents contend,
‘‘brief services’’ in the CSR. As such, receipts of a ‘‘household,’’ instead of a
because automatically deducted taxes
LSC disagrees that the definitions are ‘‘family unit’’ and to make clear that
are not available for an applicant’s use
recipients have the discretion to define
inconsistent and LSC adopts the
and the failure to take current taxes into
the term household in any reasonable
definition as proposed.
account in determining income has an
manner. Currently, the definition of
Section 1611.2(f)—Extended Service adverse impact on the working poor.
income refers to ‘‘family unit,’’ while
While it is undoubtedly true that
the phrase ‘‘household or family unit’’
LSC is adding a definition of the term automatically deducted taxes are not
appears in the section on asset ceilings.
‘‘extended service’’ as that term is used available to an applicant, LSC agrees
It appears that there is no difference
in section 1611.9, Retainer Agreements. with the other commenter that the
intended by the use of different terms in
As defined, extended service means definition of income is not the
these sections and LSC believes that it
legal assistance characterized by the appropriate place in the regulation to
is appropriate to simplify the regulation
performance of multiple tasks incident deal with this issue.
to use the same single term in each
to continuous representation in which Taking the phrase ‘‘before taxes’’ out
provision, without creating a
the recipient undertakes responsibility of the definition of income would
substantive change in the meaning of
for protecting or advancing the client’s effectively change the meaning of
either term. LSC has decided to use
interests beyond advice and counsel or income from gross income to net income
‘‘household’’ instead of ‘‘family unit’’
brief services. Examples of extended after taxes. The term income has meant
because it is a simpler, more
service include representation of a gross income since the original adoption
understandable term.
of the financial eligibility regulation in
client in litigation, administrative As noted above, LSC does not intend
1976. See 41 FR 51604, at 51606,
adjudicative proceeding, alternate the use of the term ‘‘household’’ to have
November 23, 1976. The maximum
dispute resolution proceeding, or a different meaning from the current
income guidelines are based on the
extended negotiations with a third term ‘‘family unit.’’ Under current
Department of Health and Human
party. LSC received no comments guidance from the LSC Office of Legal
Services (DHHS) Federal Poverty
Affairs, recipients have considerable
objecting to the proposed definition and
Guidelines amounts. DHHS’’ Federal
latitude in defining the term ‘‘family
adopts the definition as proposed.
Poverty Guidelines are, by law, based on
unit.’’ Specifically, OLA External
Section 1611.2(f)—Governmental the Census Bureau’s Federal Poverty
Opinion No. EX–2000–1011 states:
Program for Low Income Individuals or Thresholds, which are calculated using
Neither the LSC Act nor the LSC
Families gross income before taxes. 42 U.S.C.
regulations define ‘‘family unit’’ for client
9902(2); Office of Management and
eligibility purposes. The Corporation will
LSC is changing the term that is used Budget Directive No. 14 (May 1978).
defer to recipient determinations on this
in the regulation from ‘‘governmental Changing the definition of income
issue, within reason. Recipients may
program for the poor’’ to ‘‘governmental effectively from gross to net after taxes
consider living arrangements, familial
program for low income individuals and relationships, legal responsibility, financial would introduce two different uses of
families.’’ This change is not intended responsibility or family unit definitions used the term income into the regulations
by government benefits agencies, amongst
to create any substantive change in the (one use in the income guidelines
other factors, in making such decisions.
current definition, but merely reflect published annually by LSC in Appendix
preferred nomenclature. LSC received LSC intends that this standard would A to Part 1611 and another use in the
no comments objecting to this change also apply to definitions of ‘‘household’’ text of the regulation). This is
and the definition makes this clear. problematic in two ways.
and adopts the revision as proposed.
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5. 45549
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First, with respect to the annual None of the comments supporting Indian trusts from being considered
income ceiling limits, unilaterally removal of ‘‘before taxes’’ from the income for the purpose of determining
changing the standard from gross to net definition of income addressed the financial eligibility of Native American
income after taxes would arguably problems discussed above. Moreover, applicants for service, and that such
exceed LSC’s authority. LSC is required LSC believes that the practical problem funds or interests of individual Native
by the LSC Act to set its maximum (that taxes, indeed, are funds Americans in trust or restricted lands
income guidelines in consultation with unavailable to the applicant), is better should not be considered as a resource
the Office of Management and Budget addressed by treating taxes as a separate for the purpose of LSC financial
and the Governors of the states. 42 factor which can be considered by the eligibility. See LSC Office of Legal
U.S.C. 2996f(a)(2)(A). The annual recipient in making financial eligibility Affairs External Opinion 99–17, August
income ceiling agreed to by LSC, OMB determinations. (This matter is 27, 1999.
As noted in External Opinion 99–17,
and the Governors (set at 125% of the presented in greater detail in the
the exclusion applies only to funds and
Federal Poverty Guidelines amounts) discussion of section 1611.5, below.)
other interests held in trust by the
was arrived at based on gross income; Further, although LSC does not consider
federal government and investment
changing to a net income after taxes defining income as gross income (rather
income accrued therefrom. The
standard would effectively increase the than net after taxes) as presenting any
following have been found to qualify for
annual ceiling amounts beyond what ‘‘apparent preference’’ for non-working
the exclusion from income in
was agreed. LSC is concerned that it applicants, permitting current taxes to
determining eligibility for various
could only undertake such an action in be a factor to be considered by the
government benefits: income from the
consultation with OMB and the recipient in making financial eligibility
sale of timber from land held in trust;
Governors, which consultation has not determinations eliminates any such
income derived from farming and
happened. apparent preference that may be
Second, adopting a net income after ranching operations on reservation land
perceived as existing. Accordingly, LSC
taxes standard would, as one held in trust by the federal government;
declines to remove the words ‘‘before
commenter noted, increase the upper income derived from rentals, royalties,
taxes’’ from the definition of income.
income limit as well. This would have In addition, LSC is moving the and sales proceeds from natural
the effect of further increasing the information on what is encompassed by resources of land held in trust; sales
potential eligible applicant pool. the term ‘‘total cash receipts’’ into the proceeds from crops grown on land held
Although LSC believes that the slight definition of income. LSC believes that in trust; and use of land held in trust for
increase in the eligible applicant pool having this information in the definition grazing purposes. On the other hand,
which will result from increasing the of income, rather than in a separate per capita distributions of revenues
upper income limit from 187.5% to definition will make the regulation from gaming activity on tribal trust
200% of the Federal Poverty Guidelines easier to understand, particularly as the property are not protected because such
amounts is justifiable (see discussion of term ‘‘total cash receipts’’ is used only funds are not held in trust by the federal
section 1611.5, below), LSC is in the definition of income. In government. Thus, such distributions
concerned that an additional increase in incorporating the language on ‘‘total are considered to be income for
the eligible applicant pool is not cash receipts,’’ LSC is retaining the purposes of determining LSC financial
necessary to effectively deal with the current definition of the term without eligibility.
practical problem that taxes, indeed, any substantive amendment, but
Total Cash Receipts
represent funds unavailable to the reorganizing it to make it easier to
LSC is deleting the definition of ‘‘total
applicant. understand. Specifically, LSC is
cash reciepts,’’ currently at section
It was suggested in several comments separating the definition into two
1611.2(h), as a separately defined term
that adopting a net income after taxes sentences, one of which sets forth those
in the regulation. Rather, LSC has
standard is preferable because it would things which are included in total cash
reorganized the information contained
be easier for recipients as they would receipts and one which sets forth those
in the definition and moved it directly
only have to consider ‘‘take home pay’’ things which are specifically excluded
in computing income at intake. into the definition of ‘‘income.’’ As
from the definition of total cash
However, as one commenter noted, take noted above, the only place the term
receipts. It is worth noting that the list
home pay is often not simply pay net of ‘‘total cash reciepts’’ is used is in the
of items included is not intended to be
taxes; there are other deductions from defintion of ‘‘income’’ and LSC believes
exhaustive, while the list of items to be
gross pay which an applicant could that having a separate definition for
excluded is intended to be exhaustive.
have (e.g., 401(k) deductions, medical ‘‘total cash reciepts’’ is cumbersome and
LSC received no comments objecting to
savings account deductions, insurance unnecessary. LSC received no
these changes and adopts the revisions
premium deductions, child support, as proposed. comments objecting to this change and
garnishments). In such cases, the Finally, LSC wishes to restate in this adopts the revision as proposed.
recipient would not be able to simply preamble guidance on the treatment of
Section 1611.3—Financial Eligibility
determine that income equaled take Indian trust fund monies in making
Policies
home pay, but would have to identify income determinations. Several
LSC is creating a new section 1611.3,
and add amounts for such deductions provisions of Federal law regulate
Financial Eligibility Policies, based on
from gross pay back in when whether or not income or interests in
requirements currently found in
determining the applicant’s income. In Indian trusts are taxable or should be
sections 1611.5(a), 1611.3(a)–(c) and
addition, some, but not all, of such other considered as resources or income for
1611.6. The comments generally
deductions from pay could qualify as federal benefits. See 25 U.S.C. 1407–
supported these revisions, although LSC
factors under the allowable exceptions 1408; 25 U.S.C. 117a–117c. Under the
received a few comments suggesting
to the annual income ceiling amounts. terms of those laws, LSC has determined
some changes to what was proposed.
LSC is concerned that this would add that recipients may disregard up to
confusion in the income determination $2000 per year of funds received by LSC adopts the revisions as proposed,
process, contrary to the intent of this individual Native Americans that are with certain amendments, as discussed
rulemaking. derived from income or interests in below.
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6. 45550 Federal Register / Vol. 70, No. 151 / Monday, August 8, 2005 / Rules and Regulations
The new section 1611.3 addresses in respect to assets of domestic violence the Working Group discussions and in
victims jointly held with their abusers, comments to the November 2002 NPRM,
one section recipients’ responsibilities
this requirement applies when the that the list of excludable assets should
for adopting and implementing financial
applicant has made the recipient aware be illustrative, rather than exhaustive.
eligibility policies. Under the new
that he or she is a victim of domestic The commenters argue that having an
section, the current requirement that
violence. illustrative rather than an exhaustive list
recipients’ governing bodies have to
In addition, this section permits will provide recipients with greater
adopt policies for determining financial
recipients to adopt financial eligibility flexibility in developing asset policies
eligibility is retained. However, LSC is
policies which provide for authorized and note that many recipients already
changing the current requirement for an
exceptions to the annual income ceiling exclude certain other assets.
annual review of these policies and
pursuant to section 1611.5 and for Commenters alternatively suggested
instead will now require recipients’
waiver of the asset ceiling for an some specific assets be added to the list,
governing bodies to conduct triennial
applicant in a particular case under such as household furnishings,
reviews of policies. The Working Group
unusual circumstances and when computers, and such assets which are
agreed that an annual review was
approved by the Executive Director or excluded from other governmental
unnecessary and has tended to result in
his/her designee. Finally, LSC will benefit programs for which the
rather pro forma reviews of policies.
permit recipients to adopt financial applicant is eligible. A few comments
LSC believes that a triennial review
eligibility policies which permit also specifically suggested that the
requirement will be sufficient to ensure
financial eligibility to be established by exclusion for vehicles should not be
that financial eligibility policies remain
reference to an applicant’s receipt of limited to vehicles needed for work.
relevant and will encourage a more
benefits from a governmental program One of these commenters noted that the
thorough and thoughtful review when
for low-income individuals or families Social Security Administration has
such review is undertaken. The section
consistent with section 1611.4(b). recently changed its rules on eligibility
also adds an express requirement that
These provisions are, with two for Supplemental Security Income (SSI)
recipients adopt implementing
exceptions, based directly on current to exclude from an SSI applicant’s
procedures. While this is already
requirements with a few substantive assets one vehicle used for
implicit in the current regulation, LSC
changes. First among the changes, transportation, without specific regard
believes it is preferable for this
recipients will no longer be required to to the particular transportation use (as
requirement to be expressly stated. Such
routinely submit their asset ceilings to was previously the case), provided it is
implementing procedures may be
LSC. This requirement appears to serve not strictly a recreational vehicle such
adopted either by a recipient’s
little or no purpose, as compliance with as a dune buggy. See 70 FR 6340, at
governing body or by the recipient’s
this requirement has been spotty and 6342–43 (February 7, 2005).
management. LSC received several
LSC has taken no action to obtain the LSC believes that some of the
comments supporting these changes and
information from recipients which have comments indicate that LSC was not
no comments objecting to them.
not automatically submitted it. clear in the NPRM about the
Accordingly, LSC adopts the revisions
Moreover, the information collected is relationship between the asset ceiling
as proposed.
not being put to any routine use. In adopted by a recipient and the list of
Section 1611.3 also contains certain
addition, LSC has not had a parallel excludable items. Under the current
minimum requirements for the content
requirement for the submission of regulation recipients are required to
of recipient’s financial eligibility
income ceilings. LSC has determined adopt asset ceilings based on the
policies. Specifically, LSC is requiring
that this requirement can be eliminated economy and the relative cost of living
that the recipient’s financial eligibility without any adverse effect on program in the service area. Recipients are also
policy must: compliance with or Corporation to take into account special needs of the
• Specify that only applicants for enforcement of the regulation. LSC elderly, institutionalized and persons
service determined to be financially received several comments supporting with disabilities, along with the
eligible under the policy may be further this change and no comments objecting reasonable equity value in work-related
considered for LSC-funded service; to it. Accordingly, LSC adopts the equipment used to provide income.
• Establish annual income ceilings of revision as proposed. Implicit in the requirement is the
no more than 125% of the current Another substantive change is that expectation that the recipient will set its
DHHS Federal Poverty Guidelines recipients will be permitted to provide ceiling at a level as to cover the value
amounts; in their financial eligibility policies for of such things as household furnishings,
• Establish asset ceilings; and the exclusion of (in addition to a clothing and other personal affects of
• Specify that, notwithstanding any primary residence, as provided for in applicant (and members of applicant’s
other provisions of the regulation or the the existing regulation) vehicles used for households) and other such assets as
recipient’s financial eligibility policies, transportation, assets used in producing applicants may reasonably be expected
in assessing the financial eligibility of income (such as a farmer’s tractor or a to have without liquidating in the
an individual known to be a victim of carpenter’s tools) and other assets attempt to secure legal assistance. Once
domestic violence, the recipient shall excluded from attachment under State the asset ceiling has been set, the
consider only the income and assets of or Federal law from the calculation of recipient is expected to consider all of
the applicant and shall not consider any assets. In identifying other assets the applicant’s assets against that
assets jointly held with the abuser. excluded from attachment under State ceiling, except for the value of a
In establishing income and asset or Federal law, LSC has in mind assets principle residence. The exclusion of a
ceilings, the recipient will have to that are excluded from bankruptcy principle residence is intended to
consider the cost of living in the proceedings or other assets that may not ensure that homeowners do not exceed
locality; the number of clients who can be attached for the satisfaction of a debt, the asset ceiling just on the value of the
be served by the resources of recipient; etc. home.
the potentially eligible population at Most of the comments received With the NPRM, LSC proposed to
various ceilings; and the availability of reiterated the position that field allow recipients to exclude from the
other sources of legal assistance. With representatives had expressed during asset computation a limited number of
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7. 45551
Federal Register / Vol. 70, No. 151 / Monday, August 8, 2005 / Rules and Regulations
additional assets which would be likely assets excludable under all benefits Part 1611. Nevertheless, this provision
to cause an applicant to exceed the program for low-income individuals, the of law applies regardless of whether it
applicable asset ceiling without relative national consistency which LSC appears in the regulation. However,
liquidation of that or other significant believes is important would be incorporating this language into the
household assets. As such, LSC impeded. As noted above, LSC believes regulation is appropriate, particularly in
continues to prefer to retain the that the revised language does afford light of the goal of this rulemaking to
approach in the current regulation in recipients sufficient additional clarify the requirements relating to
which the list of excludable assets is set flexibility in developing asset ceiling financial eligibility determinations.2
LSC received one comment asking
forth in toto. LSC believes that this policies.
As noted above, LSC is changing the whether this proposal means that the
approach emphasizes the policy that
asset ceiling waiver standard slightly. financial eligibility of an applicant who
most assets are to be considered and
The current regulation permits waiver is the victim of domestic violence is to
maintains a basic level of consistency
in ‘‘unusual or extremely meritorious be determined solely on the basis of the
nationally with respect to this issue.
situations;’’ the new rule permits waiver applicant’s income and assets, without
LSC continues to expect that recipients
in ‘‘unusual circumstances.’’ The regard to the income and assets of other
will set asset ceilings and asset ceiling
Working Group determined that the members of the household (beyond the
waiver policies so as to permit
current language is unnecessarily alleged perpetrator of the domestic
applicants to have reasonable amounts
stringent and that it is unclear what the violence). LSC intended that the income
of assets which will not count against
difference is intended to be between of the alleged perpetrator and assets
them in eligibility determinations and
‘‘unusual’’ and ‘‘extremely meritorious.’’ jointly held by the applicant with the
believes that the new language does
It was suggested in the Working Group alleged perpetrator must be disregarded
afford recipients some additional
that the standard should be ‘‘where in assessing the financial eligibility of
flexibility in developing asset ceilings,
appropriate.’’ LSC, however, felt that the the applicant, but that income and
consistent with the policy articulated
regulation should continue to reflect the assets not jointly held with the alleged
above particularly in light of the
policy that waivers of the asset ceilings perpetrator of other members of the
amendment to the asset ceiling waiver
should only be granted sparingly and household (as defined by the recipient)
standard discussed below.
Turning to comments on the specific not as a matter of course. The Working would have to be considered in the
proposed excludable assets, LSC agrees Group agreed that the revised language financial eligibility assessment. LSC
that it is neither necessary nor desirable accomplishes this goal, while providing acknowledges that the language of the
to restrict the exclusion for vehicles to some additional appropriate discretion statute (and LSC’s originally proposed
those used for work only. There are implementation thereof) could be read
to recipients. In addition, where the
many situations in which a vehicle is an so as to suggest that only the applicant’s
current rule requires all waiver
applicant’s only reliable, accessible individual income and assets may be
decisions to be made by the Executive
method of transportation for vital life counted. However, LSC believes that
Director, LSC proposed to permit those
activities other than work, such as such a reading would require a
decisions to be made by the Executive
education and training activities, substantive change to the financial
Director or his/her designee. LSC
reaching medical appointments, grocery eligibility requirements that Congress
believes it is important that a person in
shopping, transporting children to did not intend.
significant authority be involved in
At the time of adoption of section 506,
school or activities, etc. As such, it is making asset ceiling waiver decisions,
the regulation permitted recipients to
reasonable to consider such vehicles as but recognizes that, especially as more
take into account an applicant’s ability
among the significant assets that a recipients have consolidated and now
to access certain assets (including assets
recipient should be able to own and not serve larger areas, it is important for
of alleged perpetrators of domestic
have counted towards the applicant’s recipients to have the discretion to
violence) and permitted recipients to
applicable asset ceiling. Accordingly, delegate certain authority to regional or
consider the applicant’s lack of access to
LSC is amending the language in branch office managers or directors to
the alleged perpetrator’s income as an
proposed 1611.2(d)(1) which read increase administrative efficiency. LSC
‘‘other significant factor related to the
‘‘vehicles required for work’’ and received several comments supporting
inability to afford legal assistance.’’ 45
adopting instead the language ‘‘vehicles this change and no comments objecting
CFR 1611.6(d); 1611.5(b)(1)(E).
required for transportation.’’ Under this to it. Accordingly, LSC adopts the
However, in some cases, the victim’s
formulation, the value of vehicles which revision as proposed.
household income including the income
are not used for transportation, such as The first totally new element is the
of the alleged perpetrator was above the
vehicles used purely for recreational language regarding victims of domestic
upper income limit, such that the
activities (e.g., dune buggies, golf carts, violence. This new language
recipient was not able to even apply the
go-karts, and the like) would have to be implements LSC’s FY 1998
‘‘significant other factors’’ factor to
included in determining whether an appropriations law. Specifically, section
make a determination of eligibility and
applicant’s assets exceed the recipient’s 506 of that act provides:
in some cases there was a problem
applicable asset ceiling.
In establishing the income or assets of an
LSC declines, however, to expand the related to the extent to which the victim
individual who is a victim of domestic
list to include the exclusion of any could access household assets over
violence, under section 1007(a)(2) of the
assets excluded under benefits programs Legal Services Corporation Act (42 U.S.C.
for low income persons for which the 2 This point is demonstrated by the fact that LSC
2996f(a)(2)), to determine if the individual is
received one comment specifically supporting the
applicant is eligible. There are myriad eligible for legal assistance, a recipient
implementation of section 506 into Part 1611 on the
described in such section shall consider only
benefit programs with a widely varying basis that the new language in 1611 would provide
the assets and income of the individual and
range of excludable assets. Some recipients with enhanced ability to provide legal
shall not include any jointly held assets.
programs have relatively low asset assistance to victims of domestic violence. Rather,
the incorporation of this statutory mandate into the
Public Law 105–119, 111 Stat. 2440
ceilings, but exclude more assets from
regulation at this time does not create any
the calculation, while other programs (November 26, 1997). Although this law substantive change in the authority and
exclude fewer assets, but have higher has been in effect since 1997, it has responsibility recipients have had with respect to
asset ceilings. If LSC were to include all never been formally incorporated into this issue since 1997.
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