1. Federal Register / Vol. 70, No. 151 / Monday, August 8, 2005 / Rules and Regulations 45545
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].
* * * * * * *
[FR Doc. 05–15607 Filed 8–5–05; 8:45 am] SUPPLEMENTARY INFORMATION: Section Part 1611 (67 FR 70376).1 Futher action
BILLING CODE 6560–50–P 1007(a) of the Legal Services on the rulemaking was suspended, in
Corporation Act requires LSC to deference to a request by Representative
establish guidelines, including setting James Sensenbrenner, Chairman of the
LEGAL SERVICES CORPORATION maximum income levels, for the U.S. House of Representatives Judiciary
determination of applicants’ financial Committee, that LSC suspend action on
45 CFR Part 1611 eligibility for LSC-funded legal the rulemaking pending the
assistance. Part 1611 implements this confirmation of new LSC Board of
Financial Eligibility Directors members appointed by
provision, setting forth the requirements
AGENCY: Legal Services Corporation. President Bush.
relating to determination and
After the confirmation of nine new
ACTION: Final rule. documentation of client financial 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
amending its regulations relating to agreements. resumed consideration of the Part 1611
financial eligibility for LSC-funded legal Procedural Background rulemaking in early 2004. At the
services and client retainer agreements. meeting of the full Board of Directors on
The revisions are intended to reorganize On June 30, 2001, LSC initiated a April 30, 2005, the Board approved the
the regulation to make it easier to read Negotiated Rulemaking and appointed a republication of a revised NPRM for
and follow; simplify and streamline the Working Group comprised of public comment. That NPRM was
requirements of the rule to ease representatives of LSC (including the published on May 24, 2005 (70 FR
administrative burdens faced by LSC Office of Inspector General), the 29695).
recipients in implementing the National Legal Aid and Defenders LSC received thirteen (13) comments
regulation and to aid LSC in Association, the Center for Law and on the NPRM, including nine comments
enforcement of the regulation; and to from individual LSC grant recipients,
Social Policy, the American Bar
clarify the focus of the regulation on the one comment from a senior attorney
Association’s Standing Committee on
financial eligibility of applicants for with a recipient commenting in his
Legal Aid and Indigent Defendants and personal capacity, one comment from a
LSC-funded legal services. a number of individual LSC recipient
DATES: This final rule is effective
member of the public, and comments
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 Part 1626 of LSC’s regulations, supporting and no comments objecting
Directors at its meeting of July 28, 2005, Restrictions on Legal Assistance to to these changes. LSC adopts the
and the Final Rule was adopted by the Aliens. Finally, LSC received one revisions as proposed.
Board of Directors at its meeting of July comment suggesting that because this Section 1611.2—Definitions
30, 2005. Part contains LSC’s requirements
pertaining to when and how recipients LSC is adding definitions for several
Revisions to Part 1611 terms and amending the definitions for
must execute retainer agreements with
While specific revisions are discussed clients (a subject not directly related to each of the existing terms currently
in greater detail in the Section-by- financial eligibility determinations), that defined in the regulation. LSC believes
Section analysis below, it should be the title of this Part should refer to that the new definitions and the
noted that the revisions reflect several retainer agreements. While the amended definitions will help to make
overall goals of the original Negotiated requirements for retainer agreements are the regulation more easily
Rulemaking Working Group: included in this Part, it primarily comprehensible.
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
simplification and streamlining of the LSC is adding a definition of the term
should be specifically included in the
requirements of the rule to ease ‘‘advice and counsel’’ as that term
title of this Part.
administrative burdens faced by LSC appears in proposed section 1611.9,
recipients in implementing the Section-by-Section Analysis Retainer Agreements. Under the new
regulation, facilitate compliance and aid definition, ‘‘advice and counsel’’ is
Section 1611.1—Purpose
LSC in enforcement of the regulation; defined as limited legal assistance that
and clarification of the focus of the LSC is revising this section to make involves the review of information
regulation on the financial eligibility of clear that the standards of this part relevant to the client’s legal problem(s)
applicants for LSC-funded legal services concern only the financial eligibility of and counseling the client on the
as an issue separate from decisions on persons seeking LSC-funded legal relevant law or action(s) to take to
whether to accept a particular client for assistance and that a finding of financial address the legal problem(s). Advice
service. In particular, LSC is eligibility under Part 1611 does not and counsel does not encompass
significantly reorganizing and create an entitlement to service. In drafting of documents or making third-
simplifing the sections of the rule which addition, LSC is removing the language party contacts on behalf of the client.
set forth the various requirements in the current regulation referring to Thus, for example, advising a client of
relating to establishment of recipient giving preferences to ‘‘those least able to what notice a landlord is required to
annual income and asset ceilings, obtain legal assistance.’’ Although the provide to a tenant before evicting the
authorized exceptions and original LSC Act contained language tenant would fall under ‘‘advice and
determinations of eligibility. These indicating that recipients should counsel,’’ but making a phone call to a
changes are intended to clarify the provide preferences in service to the landlord to prevent the landlord from
regulation and include substantive poorest among applicants, that language evicting a tenant would not be
changes to make intake simpler and less was deleted when the Act was considered ‘‘advice and counsel.’’
burdensome and render basic financial reauthorized in 1977 and has remained Several commenters specifically
eligibility determinations easier for out of the legislation ever since. supported this proposed definition, and
recipients to make. LSC is also moving Moreover, section 504(a)(9) of the FY no commenters opposed the proposed
the existing provisions on group 1996 appropriations act, Public Law definition. Accordingly, LSC adopts the
representation, with some amendment, 104–134 (incorporated by reference in definition as proposed.
to a separate section of the regulation. the current appropriations act and Three of the commenters who
Finally, LSC is simplifying and implemented by regulation at 45 CFR specifically supported this proposed
clarifying the retainer agreement Part 1620) provides that recipients are to definition did express a concern,
requirement. make service determinations in however, about the statement in the
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. Federal Register / Vol. 70, No. 151 / Monday, August 8, 2005 / Rules and Regulations 45547
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 regulation to emphasize the distinction The other key concept in the
the sentence the commenters objected to between applicants, clients, and persons definition of asset is the availability of
was intended to convey that LSC is seeking or receiving assistance the resource to the applicant. Although
aware that there are circumstances in supported by other than LSC funds. the current regulation notes that the
which a case would qualify as ‘‘advice Accordingly, LSC is adding a definition recipient’s asset guidelines ‘‘shall take
and counsel’’ notwithstanding that the of applicant providing that an applicant into account impediments to an
advice and counsel may be provided is an individual seeking legal assistance individual’s access to assets of the
over a somewhat extended time period. supported with LSC funds. Groups, family unit or household,’’ the Working
Nonetheless, it is the case that many, if corporations and associations are Group was of the opinion that this
not most, advice and counsel cases specifically excluded from this principle could be more clearly
involve a short-term relationship definition, as the eligibility of groups is articulated. LSC believes that the
between the attorney and the client. addressed wholly within section 1611.6. proposed language accomplishes that
Even if the attorney must do some Recipients currently may provide purpose.
research prior to providing advice, LSC legal assistance without regard to a LSC received numerous comments
does not expect that the need to do person’s financial eligibility under Part specifically supporting the proposed
research will create a relationship 1611 when the assistance is supported definition of assets. LSC, however, also
which extends for a significant period of wholly by non-LSC funds. LSC is not received one comment expressing
time in most cases. Indeed, part of the changing this (in fact, this principle is concern that defining assets as resources
justification for exempting advice and restated in section 1611.4(a)) and ‘‘readily convertible to cash’’ could
counsel cases from the retainer believes that the use of the term preclude recipients from deeming all
agreement requirement has been the fact applicant as adopted herein will help to non-primary residence real estate as an
that such relationships are of generally clarify the application of the rule. asset and require a more lengthy inquiry
short duration, such that requiring the LSC received no comments objecting into the property’s ready convertibility
recipient to ensure an executed retainer to these changes and adopts the to cash. LSC notes at the outset that
agreement is obtained may take longer revisions as proposed. under the current rules, recipients are
than the time it takes for the attorney to already required to ‘‘take into account
Section 1611.2(d)—Assets
provide the advice and counsel to the impediments’’ to access to the
client. If, instead, it was the case that LSC is adding a definition of the term resources. Thus, to the extent that the
advice and counsel cases typically last assets to the regulation. The new monetary value of a particular
for a long time, the opportunity to definition, ‘‘cash or other resources that applicant’s real property is not available
obtain retainer agreements would not be are readily convertible to cash, which to an applicant, recipients should
lacking. Thus, LSC continues to are currently and actually available to already be taking that inaccessibility
anticipate that in most cases ‘‘advice the applicant,’’ is intended to provide into account in reviewing the
and counsel’’ will be characterized by a some guidance to recipients as to what applicant’s resources. Nonetheless, LSC
one-time or short term relationship is meant by the term assets, yet provide believes that recipients currently have
between the attorney and the client, but considerable latitude to recipients in sufficient discretion to establish a
recognizes that this may not always be developing a description of assets that rebuttable presumption that an
the case. Whether a particular case addresses local concerns and applicant’s non-primary residence real
meets the definition of ‘‘advice and conditions. The key concepts intended property is a resource readily
counsel’’ or not will continue to be in this definition are (1) ready convertible to cash and countable
determined on a case-by-case basis, convertibility to cash; and (2) toward the recipient’s asset ceiling and
considering the facts and circumstances. availability of the resource to the also to determine that a particular piece
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
LSC is adding a definition of the term states that ‘‘assets considered shall applicant for the purpose of the asset
‘‘applicable rules of professional include all liquid and non-liquid assets ceiling. Nothing in the rule being
responsibility’’ as that term appears in * * *’’ The intent of this requirement is adopted today disturbs that discretion.
proposed sections 1611.8, Change in that recipients are supposed to consider Accordingly, LSC adopts the definition
Financial Eligibility Status and 1611.9, all assets upon which the applicant as proposed.
Retainer Agreements. This definition is could draw in obtaining private legal
assistance. While there was no intent to Section 1611.2(e)—Brief Services
intended to make clear that the
references in the regulation refer to the change the underlying requirement, in LSC is adding a definition of the term
rules of ethics and professional discussing the issues of assets and asset ‘‘brief services’’ as it is used in section
responsibility applicable to attorneys in ceilings in the Working Group it became 1611.9, Retainer Agreements. LSC notes
the jurisdiction where the recipient apparent that the terms ‘‘liquid’’ and that brief services is legal assistance
either provides legal services or ‘‘non-liquid’’ were obscuring characterized primarily by being
maintains its records. LSC received no understanding of the regulation. To distinguishable from both extended
comments objecting to this definition some, the term ‘‘non-liquid’’ implied service and advice and counsel. Under
and adopts the definition as proposed. something not readily convertible to the new definition, brief service is the
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 Section 1611.2(g)—Governmental LSC received one comment
drafting of documents or personalized Program for Persons With Disabilities specifically supporting the change from
assistance with the completion of LSC is adding a definition of the term ‘‘household or family unit’’ to
pleadings being prepared and filed by ‘‘governmental program for persons ‘‘household.’’ This commenter
pro se litigants, and making limited with disabilities.’’ LSC is including in suggested that the change would
third-party contacts on behalf of a client the authorized exceptions to the annual provide ‘‘more flexibility’’ to recipients.
over, in most instances, a short time income ceilings an exception relating to LSC notes that the change in the
period. applicants seeking to obtain or maintain terminology used in the regulation in
govermental benefits for persons with this instance is not creating any
LSC received two comments substantive change. As noted above,
specifically supporting the proposed disabilities. Accordingly, it is
appropriate to include a definition for recipients already have considerable
definition. LSC received one comment discretion and flexibility to determine
noting that the proposed definition does this term. The definition, ‘‘any Federal,
State or local program that provides the scope of an applicant’s household;
not address the relative simplicity or the change in terminology being
brevity of documents which may be benefits of any kind to persons whose
eligibility is determined on the basis of adopted with this final rule neither
drafted by a recipient within the scope increases nor decreases that discretion
of brief service. This commenter was mental and/or physical disability,’’ is
intended to be similar in structure and and flexibility. LSC adopts the change
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 individuals and families.’’ LSC received rulemaking field representatives have
commenter suggested changing the no comments objecting to the proposed suggested deleting the words ‘‘before
definition or adding a statement that the definition and adopts the definition as taxes’’ from the definition of income.
definition in the regulation should not proposed. Five commenters reiterated this position
apply to the CSR. LSC notes that this in comments on the NPRM, while one
definition of ‘‘brief services’’ is, while Section 1611.2(h)—Income commenter specifically opposed
not identical, specifically intended to be LSC is revising the current definition deleting ‘‘before taxes’’ from the
fully consistent with the definition of of income to refer to the total cash definition of income. Such a change is
‘‘brief services’’ in the CSR. As such, receipts of a ‘‘household,’’ instead of a desirable, the proponents contend,
LSC disagrees that the definitions are ‘‘family unit’’ and to make clear that because automatically deducted taxes
inconsistent and LSC adopts the recipients have the discretion to define are not available for an applicant’s use
definition as proposed. the term household in any reasonable and the failure to take current taxes into
manner. Currently, the definition of account in determining income has an
Section 1611.2(f)—Extended Service income refers to ‘‘family unit,’’ while adverse impact on the working poor.
the phrase ‘‘household or family unit’’ While it is undoubtedly true that
LSC is adding a definition of the term automatically deducted taxes are not
‘‘extended service’’ as that term is used appears in the section on asset ceilings.
It appears that there is no difference available to an applicant, LSC agrees
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 to use the same single term in each deal with this issue.
to continuous representation in which provision, without creating a Taking the phrase ‘‘before taxes’’ out
the recipient undertakes responsibility substantive change in the meaning of of the definition of income would
for protecting or advancing the client’s either term. LSC has decided to use effectively change the meaning of
interests beyond advice and counsel or ‘‘household’’ instead of ‘‘family unit’’ income from gross income to net income
brief services. Examples of extended because it is a simpler, more after taxes. The term income has meant
service include representation of a understandable term. gross income since the original adoption
client in litigation, administrative As noted above, LSC does not intend of the financial eligibility regulation in
adjudicative proceeding, alternate the use of the term ‘‘household’’ to have 1976. See 41 FR 51604, at 51606,
dispute resolution proceeding, or a different meaning from the current November 23, 1976. The maximum
extended negotiations with a third term ‘‘family unit.’’ Under current income guidelines are based on the
party. LSC received no comments guidance from the LSC Office of Legal Department of Health and Human
objecting to the proposed definition and Affairs, recipients have considerable Services (DHHS) Federal Poverty
adopts the definition as proposed. latitude in defining the term ‘‘family Guidelines amounts. DHHS’’ Federal
unit.’’ Specifically, OLA External Poverty Guidelines are, by law, based on
Section 1611.2(f)—Governmental Opinion No. EX–2000–1011 states: the Census Bureau’s Federal Poverty
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
eligibility purposes. The Corporation will 9902(2); Office of Management and
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 issue, within reason. Recipients may Changing the definition of income
program for the poor’’ to ‘‘governmental consider living arrangements, familial effectively from gross to net after taxes
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
to create any substantive change in the by government benefits agencies, amongst (one use in the income guidelines
current definition, but merely reflect other factors, in making such decisions.
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 adopts the revision as proposed. and the definition makes this clear. problematic in two ways.
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5. Federal Register / Vol. 70, No. 151 / Monday, August 8, 2005 / Rules and Regulations 45549
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.
and the Governors (set at 125% of the presented in greater detail in the As noted in External Opinion 99–17,
Federal Poverty Guidelines amounts) discussion of section 1611.5, below.) the exclusion applies only to funds and
was arrived at based on gross income; Further, although LSC does not consider other interests held in trust by the
changing to a net income after taxes defining income as gross income (rather federal government and investment
standard would effectively increase the than net after taxes) as presenting any income accrued therefrom. The
annual ceiling amounts beyond what ‘‘apparent preference’’ for non-working following have been found to qualify for
was agreed. LSC is concerned that it applicants, permitting current taxes to the exclusion from income in
could only undertake such an action in be a factor to be considered by the determining eligibility for various
consultation with OMB and the recipient in making financial eligibility government benefits: income from the
Governors, which consultation has not determinations eliminates any such sale of timber from land held in trust;
happened. apparent preference that may be income derived from farming and
Second, adopting a net income after perceived as existing. Accordingly, LSC ranching operations on reservation land
taxes standard would, as one declines to remove the words ‘‘before held in trust by the federal government;
commenter noted, increase the upper taxes’’ from the definition of income. income derived from rentals, royalties,
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
applicant. understand. Specifically, LSC is LSC is deleting the definition of ‘‘total
It was suggested in several comments separating the definition into two cash reciepts,’’ currently at section
that adopting a net income after taxes sentences, one of which sets forth those 1611.2(h), as a separately defined term
standard is preferable because it would things which are included in total cash in the regulation. Rather, LSC has
be easier for recipients as they would receipts and one which sets forth those reorganized the information contained
only have to consider ‘‘take home pay’’ things which are specifically excluded in the definition and moved it directly
in computing income at intake. from the definition of total cash into the definition of ‘‘income.’’ As
However, as one commenter noted, take receipts. It is worth noting that the list noted above, the only place the term
home pay is often not simply pay net of of items included is not intended to be ‘‘total cash reciepts’’ is used is in the
taxes; there are other deductions from exhaustive, while the list of items to be defintion of ‘‘income’’ and LSC believes
gross pay which an applicant could excluded is intended to be exhaustive. that having a separate definition for
have (e.g., 401(k) deductions, medical LSC received no comments objecting to ‘‘total cash reciepts’’ is cumbersome and
savings account deductions, insurance these changes and adopts the revisions unnecessary. LSC received no
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
determine that income equaled take Indian trust fund monies in making Section 1611.3—Financial Eligibility
home pay, but would have to identify income determinations. Several Policies
and add amounts for such deductions provisions of Federal law regulate LSC is creating a new section 1611.3,
from gross pay back in when whether or not income or interests in Financial Eligibility Policies, based on
determining the applicant’s income. In Indian trusts are taxable or should be requirements currently found in
addition, some, but not all, of such other considered as resources or income for sections 1611.5(a), 1611.3(a)–(c) and
deductions from pay could qualify as federal benefits. See 25 U.S.C. 1407– 1611.6. The comments generally
factors under the allowable exceptions 1408; 25 U.S.C. 117a–117c. Under the supported these revisions, although LSC
to the annual income ceiling amounts. terms of those laws, LSC has determined received a few comments suggesting
LSC is concerned that this would add that recipients may disregard up to some changes to what was proposed.
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
one section recipients’ responsibilities victims jointly held with their abusers, comments to the November 2002 NPRM,
for adopting and implementing financial this requirement applies when the that the list of excludable assets should
eligibility policies. Under the new applicant has made the recipient aware be illustrative, rather than exhaustive.
section, the current requirement that that he or she is a victim of domestic The commenters argue that having an
recipients’ governing bodies have to violence. illustrative rather than an exhaustive list
adopt policies for determining financial In addition, this section permits will provide recipients with greater
eligibility is retained. However, LSC is recipients to adopt financial eligibility flexibility in developing asset policies
changing the current requirement for an policies which provide for authorized and note that many recipients already
annual review of these policies and exceptions to the annual income ceiling exclude certain other assets.
instead will now require recipients’ pursuant to section 1611.5 and for Commenters alternatively suggested
governing bodies to conduct triennial waiver of the asset ceiling for an some specific assets be added to the list,
reviews of policies. The Working Group applicant in a particular case under such as household furnishings,
agreed that an annual review was unusual circumstances and when computers, and such assets which are
unnecessary and has tended to result in approved by the Executive Director or excluded from other governmental
rather pro forma reviews of policies. his/her designee. Finally, LSC will benefit programs for which the
LSC believes that a triennial review permit recipients to adopt financial applicant is eligible. A few comments
requirement will be sufficient to ensure eligibility policies which permit also specifically suggested that the
that financial eligibility policies remain financial eligibility to be established by exclusion for vehicles should not be
relevant and will encourage a more reference to an applicant’s receipt of limited to vehicles needed for work.
thorough and thoughtful review when benefits from a governmental program One of these commenters noted that the
such review is undertaken. The section for low-income individuals or families Social Security Administration has
also adds an express requirement that consistent with section 1611.4(b). recently changed its rules on eligibility
recipients adopt implementing These provisions are, with two for Supplemental Security Income (SSI)
procedures. While this is already exceptions, based directly on current to exclude from an SSI applicant’s
implicit in the current regulation, LSC requirements with a few substantive assets one vehicle used for
believes it is preferable for this changes. First among the changes, transportation, without specific regard
requirement to be expressly stated. Such recipients will no longer be required to to the particular transportation use (as
implementing procedures may be routinely submit their asset ceilings to was previously the case), provided it is
adopted either by a recipient’s LSC. This requirement appears to serve not strictly a recreational vehicle such
governing body or by the recipient’s little or no purpose, as compliance with as a dune buggy. See 70 FR 6340, at
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. Federal Register / Vol. 70, No. 151 / Monday, August 8, 2005 / Rules and Regulations 45551
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
forth in toto. LSC believes that this policies. LSC received one comment asking
approach emphasizes the policy that As noted above, LSC is changing the whether this proposal means that the
most assets are to be considered and asset ceiling waiver standard slightly. financial eligibility of an applicant who
maintains a basic level of consistency The current regulation permits waiver is the victim of domestic violence is to
nationally with respect to this issue. in ‘‘unusual or extremely meritorious be determined solely on the basis of the
LSC continues to expect that recipients situations;’’ the new rule permits waiver applicant’s income and assets, without
will set asset ceilings and asset ceiling in ‘‘unusual circumstances.’’ The regard to the income and assets of other
waiver policies so as to permit Working Group determined that the members of the household (beyond the
applicants to have reasonable amounts current language is unnecessarily alleged perpetrator of the domestic
of assets which will not count against stringent and that it is unclear what the violence). LSC intended that the income
them in eligibility determinations and difference is intended to be between of the alleged perpetrator and assets
believes that the new language does ‘‘unusual’’ and ‘‘extremely meritorious.’’ jointly held by the applicant with the
afford recipients some additional It was suggested in the Working Group alleged perpetrator must be disregarded
flexibility in developing asset ceilings, that the standard should be ‘‘where in assessing the financial eligibility of
consistent with the policy articulated appropriate.’’ LSC, however, felt that the the applicant, but that income and
above particularly in light of the regulation should continue to reflect the assets not jointly held with the alleged
amendment to the asset ceiling waiver policy that waivers of the asset ceilings perpetrator of other members of the
standard discussed below. should only be granted sparingly and household (as defined by the recipient)
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 to recipients. In addition, where the implementation thereof) could be read
many situations in which a vehicle is an current rule requires all waiver so as to suggest that only the applicant’s
applicant’s only reliable, accessible decisions to be made by the Executive individual income and assets may be
method of transportation for vital life Director, LSC proposed to permit those counted. However, LSC believes that
activities other than work, such as decisions to be made by the Executive such a reading would require a
education and training activities, Director or his/her designee. LSC substantive change to the financial
reaching medical appointments, grocery believes it is important that a person in eligibility requirements that Congress
shopping, transporting children to significant authority be involved in did not intend.
school or activities, etc. As such, it is making asset ceiling waiver decisions, At the time of adoption of section 506,
reasonable to consider such vehicles as but recognizes that, especially as more the regulation permitted recipients to
among the significant assets that a recipients have consolidated and now take into account an applicant’s ability
recipient should be able to own and not serve larger areas, it is important for to access certain assets (including assets
have counted towards the applicant’s recipients to have the discretion to of alleged perpetrators of domestic
applicable asset ceiling. Accordingly, delegate certain authority to regional or violence) and permitted recipients to
LSC is amending the language in branch office managers or directors to consider the applicant’s lack of access to
proposed 1611.2(d)(1) which read increase administrative efficiency. LSC the alleged perpetrator’s income as an
‘‘vehicles required for work’’ and received several comments supporting ‘‘other significant factor related to the
adopting instead the language ‘‘vehicles this change and no comments objecting inability to afford legal assistance.’’ 45
required for transportation.’’ Under this to it. Accordingly, LSC adopts the CFR 1611.6(d); 1611.5(b)(1)(E).
formulation, the value of vehicles which revision as proposed. However, in some cases, the victim’s
are not used for transportation, such as The first totally new element is the household income including the income
vehicles used purely for recreational language regarding victims of domestic of the alleged perpetrator was above the
activities (e.g., dune buggies, golf carts, violence. This new language upper income limit, such that the
go-karts, and the like) would have to be implements LSC’s FY 1998 recipient was not able to even apply the
included in determining whether an appropriations law. Specifically, section ‘‘significant other factors’’ factor to
applicant’s assets exceed the recipient’s 506 of that act provides: make a determination of eligibility and
applicable asset ceiling. in some cases there was a problem
In establishing the income or assets of an
LSC declines, however, to expand the individual who is a victim of domestic
related to the extent to which the victim
list to include the exclusion of any violence, under section 1007(a)(2) of the could access household assets over
assets excluded under benefits programs Legal Services Corporation Act (42 U.S.C.
for low income persons for which the 2996f(a)(2)), to determine if the individual is 2 This point is demonstrated by the fact that LSC
applicant is eligible. There are myriad eligible for legal assistance, a recipient received one comment specifically supporting the
described in such section shall consider only implementation of section 506 into Part 1611 on the
benefit programs with a widely varying basis that the new language in 1611 would provide
range of excludable assets. Some the assets and income of the individual and recipients with enhanced ability to provide legal
programs have relatively low asset shall not include any jointly held assets. assistance to victims of domestic violence. Rather,
ceilings, but exclude more assets from Public Law 105–119, 111 Stat. 2440 the incorporation of this statutory mandate into the
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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8. 45552 Federal Register / Vol. 70, No. 151 / Monday, August 8, 2005 / Rules and Regulations
which the alleged perpetrator had joint domestic violence or involves the This section further provides that a
control. Thus, the practical problem perpetrator as an adverse party. Neither recipient may find an applicant to be
addressed by section 506 is that in many the statute (nor the accompanying report financially eligible if the applicant’s
cases a victim of domestic violence language) specify that the request for assets are at or below the recipient’s
cannot draw upon the income or assets legal assistance must relate to applicable asset ceiling level (or the
of the alleged perpetrator (including alleviating the domestic violence or ceiling has been properly waived) and
jointly held assets) as a source of funds require the perpetrator to be an adverse the applicant’s income is at or below the
with which to obtain private legal party. As such, as noted above, the recipient’s applicable income ceiling, or
assistance. special rule applies at any time when if one or more of the authorized
As the report language accompanying the applicant has made the recipient exceptions to the ceiling applies. These
Public Law 105–119 notes, Congress aware that he or she is a victim of provisions are based on existing
was ‘‘aware that the current statute and domestic violence. LSC does not find it provisions found in sections 1611.3,
regulations * * * already provide for likely that applicants who are victims of 1611.4 and 1611.6. As revised, the new
such determinations to be made’’ but domestic violence identify themselves provisions do not represent a
‘‘given concerns regarding access to the as such in seeking legal assistance in substantive change, but LSC believes
legal system for victims of domestic matters wholly unrelated to the having the basic statements as to who
violence, the conferees have included domestic violence. However, if an may be found to be financially eligible
this provision to provide greater clarity applicant seeking assistance with an for assistance in one section makes the
regarding this matter.’’ H. Rpt. 105–405, unrelated matter self-identifies as a regulation much clearer. In addition,
p. 186. This indicates that Congress did victim, LSC believes that this would where the existing regulation uses a
not intend to require significant changes likely be done as a way of explaining construction that speaks to when a
to LSC’s regulations on financial why certain income and/or assets are recipient may provide legal assistance,
eligibility, but rather only that Congress, unavailable for use in obtaining private the new language emphasizes the point
in adopting section 506, wanted to legal assistance. As such, the rationale that the requirements speak only to
ensure that the income and assets of the of the special rule would appear to be determinations of financial eligibility
alleged perpetrator (which are generally satisfied and recipients should have the and not to decisions regarding whether
under the control of the perpetrator and ability to disregard the perpetrator’s or not to actually provide legal
which the victim cannot readily access) income and assets (including jointly assistance. LSC received several
not render the victim financially held assets) in such situations. LSC does comments supporting these changes and
ineligible for legal assistance. As the not believe the risk that an applicant no comments opposing these changes.
regulation did not then provide for would self-identify as a domestic Accordingly, LSC adopts the revisions
disregarding the income and assets of violence victim in order to circumvent as proposed.
other members of the victim’s the financial eligibility requirements is
LSC is also incorporating into this
household not jointly held with the significant and is confident a recipient
section a significant substantive change
alleged perpetrator in the assessment of would explore the situation further if
to the regulation. Consistent with
the victim’s financial eligibility, LSC the recipient suspected the claims of the
applicant were specious. section 1611.3 as discussed above the
does not believe Congress was
Finally, LSC has decided to permit regulation will now permit recipients to
attempting to change the general
recipients to adopt financial eligibility determine an applicant to be financially
requirement that LSC consider the
policies which permit financial eligible because the applicant’s income
income and assets of other members of
eligibility to be established by reference is derived solely from a governmental
the victim’s household in making
to an applicant’s receipt of benefits from program for low-income individuals or
financial eligibility determinations as
a governmental program for low-income families, provided that the recipient’s
long as they are available to the victim.
In light of the foregoing, LSC is individuals or families consistent with governing body has determined that the
amending section 1611.3(e) to make this section 1611.4(b). This issue is income standards of the governmental
clearer by revising it to read: discussed in greater detail below. program are at or below 125% of the
Federal Poverty Guidelines amounts.
Notwithstanding any other provision of Section 1611.4—Financial Eligibility for For many recipients, a significant
this Part, or other provision of the recipient’s Legal Assistance proportion of applicants rely on
financial eligibility policies, every recipient
shall specify as part of its financial eligibility This section sets forth the basic governmental benefits for low-income
policies that in assessing the income or assets requirement that recipients may provide individuals and families as their sole
of an applicant who is a victim of domestic legal assistance supported with LSC source of income. In order to qualify for
violence, the recipient shall consider only funds only to those individuals whom these benefits, such persons have
the assets and income of the applicant and the recipient has determined are already been screened by the agency
members of the applicant’s household other financially eligible for such assistance providing the benefits (using an
than those of the alleged perpetrator of the pursuant to their policies, consistent eligibility determination process that is
domestic violence and shall not include any
assets held by the alleged perpetrator of the
with this Part. This section also contains at least as strict as the one required
domestic violence, jointly held by the a statement that nothing in Part 1611 under LSC regulations) and determined
applicant with the alleged perpetrator of the prohibits a recipient from providing to be financially eligible for those
domestic violence, or assets jointly held by legal assistance to an individual without benefits. In Working Group discussions,
any member of the applicant’s household regard to that individual’s income and many representatives of the field noted
with the alleged perpetrator of the domestic assets if the legal assistance is supported that if they could rely on the
violence. wholly by funds from a source other determinations made by these agencies
LSC also received a comment than LSC (regardless of whether LSC without having to otherwise make an
requesting clarification of whether the funds were used as a match to obtain independent inquiry into financial
special rule applies in all cases such other funds, as is the case with eligibility, it would substantially ease
involving a victim of domestic violence Title III or VOCA grant funds) and the the administrative burden involved in
or only in cases in which the request for assistance is otherwise permissible making financial eligibility
assistance is related to alleviating the under applicable law and regulation. determinations.
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