1. 45545
Federal Register / Vol. 70, No. 151 / Monday, August 8, 2005 / Rules and Regulations
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
SUPPLEMENTARY INFORMATION:
[FR Doc. 05–15607 Filed 8–5–05; 8:45 am]
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.
AGENCY: relating to determination and
After the confirmation of nine new
Final rule.
ACTION: 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
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
that this Part also sets forth financial
merely a threshold question and the
Defendants. With minor exceptions
standards for groups seeking legal
issue of whether any otherwise eligible
(discussed in greater detail below), the
assistance supported by LSC funds.
applicant will be provided with legal
commenters strongly supported the
Finally, LSC is adding a reference to the
assistance is a matter for the recipient to
proposed revisions. Upon receipt of the
retainer agreement requirement in the
determine with reference to its priorities
comments, LSC prepared a Draft Final
purpose section to provide a notice at
and resources. In addition, this part
Rule discussing the comments and
the beginning of the regulation that this
does not address eligibility based on
making permanent the proposed
subject is included in Part 1611. LSC
citizenship or alienage status; those
revisions. The Draft Final Rule was
received several comments specifically
eligibility requirements are set forth in
considered by the Operations and
supporting and no comments objecting
Regulations Committee of the Board of Part 1626 of LSC’s regulations,
to these changes. LSC adopts the
Directors at its meeting of July 28, 2005, Restrictions on Legal Assistance to
revisions as proposed.
and the Final Rule was adopted by the 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
each of the existing terms currently
While specific revisions are discussed clients (a subject not directly related to
defined in the regulation. LSC believes
in greater detail in the Section-by- financial eligibility determinations), that
that the new definitions and the
Section analysis below, it should be the title of this Part should refer to
amended definitions will help to make
noted that the revisions reflect several retainer agreements. While the
the regulation more easily
overall goals of the original Negotiated requirements for retainer agreements are
comprehensible.
Rulemaking Working Group: 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,
Three of the commenters who
the current appropriations act and
to a separate section of the regulation.
specifically supported this proposed
implemented by regulation at 45 CFR
Finally, LSC is simplifying and
definition did express a concern,
Part 1620) provides that recipients are to
clarifying the retainer agreement
however, about the statement in the
make service determinations in
requirement.
preamble to the NPRM in which LSC
accordance with written priorities,
Title of Part 1611 stated that LSC anticipates that advice
which take into account factors other
and counsel will generally be
than the relative poverty among
LSC is changing the title of Part 1611
characterized by a one-time or very
applicants. Thus, as there is no statutory
from ‘‘Eligibility’’ to ‘‘Financial
short term relationship between the
basis for a preference for those least able
Eligibility.’’ This change is intended,
attorney and the client. These
to afford assistance and because LSC
first, to make clear that with respect to
commenters noted that there are any
believes that the regulation should focus
individuals seeking LSC-funded legal
number of situations in which a
on financial eligibility determinations
assistance, the standards of this part
recipient attorney has to do some
without reference to issues relating to
deal only with the financial eligibility of
research in order to properly advise a
determinations by a recipient to provide
such persons. LSC believes this change
client or in which the attorney provides
services to a particular applicant, LSC
will help clarify that a finding of
advice and counsel to a client on a
has determined that such language
financial eligibility under Part 1611
limited number of occasions, but over a
should be removed from the regulation.
does not create an entitlement to
somewhat extended period of time.
LSC is also adding language specifying
service. Rather, financial eligibility is
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3. 45547
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the terms ‘‘liquid’’ and ‘‘non-liquid’’
the financial eligibility of persons
These commenters suggested deleting
should be eliminated and that the
seeking legal assistance supported with
any reference to an anticipated time
regulation should focus instead on the
LSC funds, LSC has decided to use the
period in relation to the intended
ready convertibility of the asset to cash.
term ‘‘applicant’’ throughout the
meaning of ‘‘advice and counsel.’’
The other key concept in the
The use of the word ‘‘generally’’ in regulation to emphasize the distinction
definition of asset is the availability of
the sentence the commenters objected to between applicants, clients, and persons
the resource to the applicant. Although
was intended to convey that LSC is seeking or receiving assistance
the current regulation notes that the
aware that there are circumstances in supported by other than LSC funds.
recipient’s asset guidelines ‘‘shall take
which a case would qualify as ‘‘advice Accordingly, LSC is adding a definition
into account impediments to an
and counsel’’ notwithstanding that the of applicant providing that an applicant
individual’s access to assets of the
advice and counsel may be provided is an individual seeking legal assistance
family unit or household,’’ the Working
over a somewhat extended time period. supported with LSC funds. Groups,
Group was of the opinion that this
Nonetheless, it is the case that many, if corporations and associations are
principle could be more clearly
not most, advice and counsel cases specifically excluded from this
articulated. LSC believes that the
involve a short-term relationship definition, as the eligibility of groups is
proposed language accomplishes that
between the attorney and the client. addressed wholly within section 1611.6.
purpose.
Recipients currently may provide
Even if the attorney must do some
LSC received numerous comments
legal assistance without regard to a
research prior to providing advice, LSC
specifically supporting the proposed
person’s financial eligibility under Part
does not expect that the need to do
definition of assets. LSC, however, also
1611 when the assistance is supported
research will create a relationship
received one comment expressing
wholly by non-LSC funds. LSC is not
which extends for a significant period of
concern that defining assets as resources
changing this (in fact, this principle is
time in most cases. Indeed, part of the
‘‘readily convertible to cash’’ could
restated in section 1611.4(a)) and
justification for exempting advice and
preclude recipients from deeming all
believes that the use of the term
counsel cases from the retainer
non-primary residence real estate as an
applicant as adopted herein will help to
agreement requirement has been the fact
asset and require a more lengthy inquiry
clarify the application of the rule.
that such relationships are of generally
into the property’s ready convertibility
LSC received no comments objecting
short duration, such that requiring the
to cash. LSC notes at the outset that
to these changes and adopts the
recipient to ensure an executed retainer
under the current rules, recipients are
revisions as proposed.
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 applicant for the purpose of the asset
LSC is adding a definition of the term
include all liquid and non-liquid assets ceiling. Nothing in the rule being
‘‘applicable rules of professional
* * *’’ The intent of this requirement is adopted today disturbs that discretion.
responsibility’’ as that term appears in
that recipients are supposed to consider Accordingly, LSC adopts the definition
proposed sections 1611.8, Change in
all assets upon which the applicant as proposed.
Financial Eligibility Status and 1611.9,
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
LSC is adding a definition of the term
change the underlying requirement, in
references in the regulation refer to the
‘‘brief services’’ as it is used in section
discussing the issues of assets and asset
rules of ethics and professional
1611.9, Retainer Agreements. LSC notes
ceilings in the Working Group it became
responsibility applicable to attorneys in
that brief services is legal assistance
apparent that the terms ‘‘liquid’’ and
the jurisdiction where the recipient
characterized primarily by being
‘‘non-liquid’’ were obscuring
either provides legal services or
distinguishable from both extended
understanding of the regulation. To
maintains its records. LSC received no
service and advice and counsel. Under
some, the term ‘‘non-liquid’’ implied
comments objecting to this definition
the new definition, brief service is the
something not readily convertible to
and adopts the definition as proposed.
performance of a discrete task (or tasks)
cash, while to others the term implied
Section 1611.2(c)—Applicant which are not incident to continuous
an asset that was simply something
representation in a case but which
other than cash, without regard to the
Consistent with the intention to keep
involve more than the mere provision of
ease of converting the asset to cash.
the focus of the regulation on the
advice and counsel. Examples of brief
Thus, the Working Group agreed that
standards and criteria for determining
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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 A to Part 1611 and another use in the
LSC intends that this standard would
no comments objecting to this change text of the regulation). This is
also apply to definitions of ‘‘household’’
problematic in two ways.
and the definition makes this clear.
and adopts the revision as proposed.
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5. 45549
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Indian trusts from being considered
None of the comments supporting
First, with respect to the annual
income for the purpose of determining
removal of ‘‘before taxes’’ from the
income ceiling limits, unilaterally
financial eligibility of Native American
definition of income addressed the
changing the standard from gross to net
applicants for service, and that such
problems discussed above. Moreover,
income after taxes would arguably
funds or interests of individual Native
LSC believes that the practical problem
exceed LSC’s authority. LSC is required
Americans in trust or restricted lands
(that taxes, indeed, are funds
by the LSC Act to set its maximum
should not be considered as a resource
unavailable to the applicant), is better
income guidelines in consultation with
for the purpose of LSC financial
addressed by treating taxes as a separate
the Office of Management and Budget
eligibility. See LSC Office of Legal
factor which can be considered by the
and the Governors of the states. 42
Affairs External Opinion 99–17, August
recipient in making financial eligibility
U.S.C. 2996f(a)(2)(A). The annual
27, 1999.
determinations. (This matter is
income ceiling agreed to by LSC, OMB
As noted in External Opinion 99–17,
presented in greater detail in the
and the Governors (set at 125% of the
the exclusion applies only to funds and
discussion of section 1611.5, below.)
Federal Poverty Guidelines amounts)
other interests held in trust by the
Further, although LSC does not consider
was arrived at based on gross income;
federal government and investment
defining income as gross income (rather
changing to a net income after taxes
income accrued therefrom. The
than net after taxes) as presenting any
standard would effectively increase the
following have been found to qualify for
‘‘apparent preference’’ for non-working
annual ceiling amounts beyond what
the exclusion from income in
applicants, permitting current taxes to
was agreed. LSC is concerned that it
determining eligibility for various
be a factor to be considered by the
could only undertake such an action in
government benefits: income from the
recipient in making financial eligibility
consultation with OMB and the
sale of timber from land held in trust;
determinations eliminates any such
Governors, which consultation has not
income derived from farming and
apparent preference that may be
happened.
ranching operations on reservation land
Second, adopting a net income after perceived as existing. Accordingly, LSC
held in trust by the federal government;
taxes standard would, as one declines to remove the words ‘‘before
income derived from rentals, royalties,
commenter noted, increase the upper taxes’’ from the definition of income.
and sales proceeds from natural
In addition, LSC is moving the
income limit as well. This would have
resources of land held in trust; sales
information on what is encompassed by
the effect of further increasing the
proceeds from crops grown on land held
the term ‘‘total cash receipts’’ into the
potential eligible applicant pool.
in trust; and use of land held in trust for
definition of income. LSC believes that
Although LSC believes that the slight
grazing purposes. On the other hand,
having this information in the definition
increase in the eligible applicant pool
per capita distributions of revenues
of income, rather than in a separate
which will result from increasing the
from gaming activity on tribal trust
definition will make the regulation
upper income limit from 187.5% to
property are not protected because such
easier to understand, particularly as the
200% of the Federal Poverty Guidelines
funds are not held in trust by the federal
term ‘‘total cash receipts’’ is used only
amounts is justifiable (see discussion of
in the definition of income. In
section 1611.5, below), LSC is government. Thus, such distributions
incorporating the language on ‘‘total
concerned that an additional increase in are considered to be income for
cash receipts,’’ LSC is retaining the
the eligible applicant pool is not purposes of determining LSC financial
current definition of the term without
necessary to effectively deal with the eligibility.
any substantive amendment, but
practical problem that taxes, indeed,
Total Cash Receipts
reorganizing it to make it easier to
represent funds unavailable to the
LSC is deleting the definition of ‘‘total
understand. Specifically, LSC is
applicant.
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
into the definition of ‘‘income.’’ As
in computing income at intake. 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, comments objecting to this change and
as proposed.
Finally, LSC wishes to restate in this
garnishments). In such cases, the adopts the revision as proposed.
preamble guidance on the treatment of
recipient would not be able to simply
Section 1611.3—Financial Eligibility
Indian trust fund monies in making
determine that income equaled take
Policies
income determinations. Several
home pay, but would have to identify
LSC is creating a new section 1611.3,
provisions of Federal law regulate
and add amounts for such deductions
Financial Eligibility Policies, based on
whether or not income or interests in
from gross pay back in when
requirements currently found in
Indian trusts are taxable or should be
determining the applicant’s income. In
sections 1611.5(a), 1611.3(a)–(c) and
considered as resources or income for
addition, some, but not all, of such other
1611.6. The comments generally
federal benefits. See 25 U.S.C. 1407–
deductions from pay could qualify as
supported these revisions, although LSC
1408; 25 U.S.C. 117a–117c. Under the
factors under the allowable exceptions
received a few comments suggesting
terms of those laws, LSC has determined
to the annual income ceiling amounts.
some changes to what was proposed.
that recipients may disregard up to
LSC is concerned that this would add
LSC adopts the revisions as proposed,
$2000 per year of funds received by
confusion in the income determination
with certain amendments, as discussed
individual Native Americans that are
process, contrary to the intent of this
below.
derived from income or interests in
rulemaking.
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6. 45550 Federal Register / Vol. 70, No. 151 / Monday, August 8, 2005 / Rules and Regulations
the Working Group discussions and in
respect to assets of domestic violence
The new section 1611.3 addresses in
comments to the November 2002 NPRM,
victims jointly held with their abusers,
one section recipients’ responsibilities
that the list of excludable assets should
this requirement applies when the
for adopting and implementing financial
be illustrative, rather than exhaustive.
applicant has made the recipient aware
eligibility policies. Under the new
The commenters argue that having an
that he or she is a victim of domestic
section, the current requirement that
illustrative rather than an exhaustive list
violence.
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; home.
etc.
With the NPRM, LSC proposed to
Most of the comments received
the potentially eligible population at
allow recipients to exclude from the
reiterated the position that field
various ceilings; and the availability of
asset computation a limited number of
representatives had expressed during
other sources of legal assistance. With
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