Proposed Rule Legal Assistance Eligibility; Maximum Income Guidelines


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Proposed Rule Legal Assistance Eligibility; Maximum Income Guidelines

  1. 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); (e-mail). (November 22, 2002). VerDate jul<14>2003 18:56 Aug 05, 2005 Jkt 205001 PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 E:FRFM08AUR1.SGM 08AUR1
  2. 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 VerDate jul<14>2003 18:56 Aug 05, 2005 Jkt 205001 PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 E:FRFM08AUR1.SGM 08AUR1
  3. 3. 45547 Federal Register / Vol. 70, No. 151 / Monday, August 8, 2005 / Rules and Regulations 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 VerDate jul<14>2003 18:56 Aug 05, 2005 Jkt 205001 PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 E:FRFM08AUR1.SGM 08AUR1
  4. 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. 5. 45549 Federal Register / Vol. 70, No. 151 / Monday, August 8, 2005 / Rules and Regulations 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. VerDate jul<14>2003 18:56 Aug 05, 2005 Jkt 205001 PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 E:FRFM08AUR1.SGM 08AUR1
  6. 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 VerDate jul<14>2003 18:56 Aug 05, 2005 Jkt 205001 PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 E:FRFM08AUR1.SGM 08AUR1