6816 Federal Register / Vol. 75, No. 28 / Thursday, February 11, 2010 / Rules and Regulations 

EPA APPROVED ALBUQUERQUE/BERNALILLO COUNTY, NM REGULATIONS

State citation Title/subject 

State approval/ 

effective 

date 

EPA approval date Explanation 

* * * * * * * 

New Mexico Administrative Code (NMAC) Title 20—Environment Protection, Chapter 11—Albuquerque/Bernalillo County Air Quality 

Control Board 

* * * * * * * 

Part 102 (20.11.102 NMAC) Oxygenated Fuels ................. 12/11/2005 2/11/2010 [Insert FR page 

number where document 

begins]. 

* * * * * * * 

[FR Doc. 2010–2792 Filed 2–10–10; 8:45 am] 

BILLING CODE 6560–50–P 

LEGAL SERVICES CORPORATION 

45 CFR Parts 1609, 1610, and 1642 

Attorneys’ Fees; Fee-Generating 

Cases; Use of Non-LSC Funds, 

Transfers of LSC Funds, Program 

Integrity 

AGENCY: Legal Services Corporation. 

ACTION: Interim final rule and request 

for comments. 

SUMMARY: LSC is repealing its regulatory 

prohibition on the claiming of, and the 

collection and retention of attorneys’ 

fees pursuant to Federal and State law 

permitting or requiring the awarding of 

such fees. This action is taken in 

accordance with the elimination on the 

statutory prohibition on attorneys’ fees 

in LSC’s FY 2010 appropriation 

legislation. LSC is also moving 

provisions on accounting for and use of 

attorneys’ fees and acceptance of 

reimbursements from clients from Part 

1642 (which is being eliminated) to Part 

1609 of LSC’s regulations. LSC is also 

making technical changes to Part 1609 

and Part 1610 of its regulations to 

remove cross references to the obsolete 

statutory and regulatory citations. 

DATES: This Interim Final Rule is 

effective March 15, 2010. Comments on 

this Interim Final Rule are due on 

March 15, 2010. 

ADDRESSES: Written comments may be 

submitted by mail, fax or e-mail to 

Mattie Cohan, Senior Assistant General 

Counsel, Office of Legal Affairs, Legal 

Services Corporation, 3333 K Street, 

NW., Washington, DC 20007; 202–295– 

1624 (ph); 202–337–6519 (fax); 

mcohan@lsc.gov. 

FOR FURTHER INFORMATION CONTACT: 

Mattie Cohan, Senior Assistant General 

Counsel, 202–295–1624 (ph); 

mcohan@lsc.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

LSC’s FY 1996 appropriation 

legislation provided that none of the 

funds appropriated in that Act could be 

used to provide financial assistance to 

any person or entity (which may be 

referred to in this section as a recipient) 

that claims (or whose employee claims), 

or collects and retains, attorneys’ fees 

pursuant to any Federal or State law 

permitting or requiring the awarding of 

such fees. Section 504(a)(13), Public 

Law 104–134, 110 Stat. 1321 (April 26, 

1996). Since appropriations legislation 

expires with the end of the Fiscal Year 

to which it applies, for the statutory 

restriction on attorneys’ fees to remain 

in place by statute, it needed to be, and 

was, carried forth in each subsequent 

appropriation law by reference. See, 

e.g., Consolidated Appropriations Act, 

2009, Public Law 111–8, 123 Stat. 524 

(March 11, 2009). 

LSC adopted regulations found in 

1996 and 1997 which implemented the 

statutory attorneys’ fees restriction. 45 

CFR part 1642; 61 FR 45762 (August 29, 

1996); 62 FR 25862 (May 12, 1997). The 

attorneys’ fees regulation restates the 

basic prohibition on claiming or 

collecting and retaining attorneys’ fees, 

providing that except as permitted by 

§ 1642.4 (providing exceptions cases 

filed prior to the prohibition and for 

cases undertaken by private attorneys 

providing pro bono services in 

connection with a recipient’s private 

attorney involvement program), no 

recipient or employee of a recipient may 

claim, or collect and retain attorneys’ 

fees in any case undertaken on behalf of 

a client of the recipient. 46 CFR 1642.3. 

The regulation provides further 

guidance to recipients by, among other 

things, providing a regulatory definition 

of attorneys’ fees; setting forth rules for 

the applicability of the restriction to 

private attorneys providing legal 

assistance to a recipient’s private 

attorney involvement program; and 

providing express authority to 

recipients to accept reimbursements of 

costs from a client. The regulation also 

sets forth rules for the accounting for 

and use of those attorneys’ fees which 

recipients are not prohibited from 

claiming, collecting or retaining. 

On December 16, 2009 President 

Obama signed the Consolidated 

Appropriations Act of 2010 into law. 

Public Law 111–117. This act provides 

LSC’s appropriation for FY 2010. Like 

its predecessors, this law incorporates 

the various restrictions first imposed by 

the FY 1996 legislation by reference. 

However, section 533 of that same law 

also provides that Section 504(a) of the 

Departments of Commerce, Justice, and 

State, the Judiciary, and Related 

Agencies Appropriations Act, 1996 (as 

contained in Pub. L. 104–134) is 

amended by striking paragraph (13). 

Taken together, these provisions serve 

to incorporate by reference all of the 

restrictions in section 504 of the FY 

1996 law, except for paragraph (a)(13), 

which contained the restriction on 

attorneys’ fees. As such, there is no 

current statutory restriction on LSC 

providing the money FY 2010 

appropriated to it to any recipient 

which claims, or collects and retains 

attorneys’ fees. 

The current law lifts the statutory 

restriction, but does not affirmatively 

provide recipients the right to claim or 

collect and retain attorneys’ fees, nor 

does it prohibit LSC from restricting a 

recipient’s ability to claim or collect and 

retain attorneys’ fees. As such, in 

accordance with LSC inherent 

regulatory authority, the regulation 


cprice-sewell on DSK2BSOYB1PROD with RULES
Federal Register / Vol. 75, No. 28 / Thursday, February 11, 2010 / Rules and Regulations 6817 

1 It should be noted that the LSC Act’s restriction 

on recipients taking fee-generating cases (and the 

implementing regulatory restriction on feegenerating cases) are not affected by the lifting of 

the statutory ban on the claiming and collecting and 

retention of attorneys’ fees and would not be 

affected by any regulatory amendment to part 1642. 

Accordingly, amendment of part 1642 would not 

have an adverse impact on the private bar nor 

provide any incentive for recipients to seek out feegenerating cases at the expense of the needs of other 

clients. 

2Until this Interim Final Rule becomes effective, 

LSC has adopted a policy under which it will 

exercise its enforcement discretion and not take 

enforcement action against any recipient that filed 

a claim for or collected and retained attorneys’ fees 

between the period of December 16, 2009 and the 

effective date of the regulation. 

remains in place notwithstanding the 

lifting of the statutory restriction unless 

and until repealed. 

Repeal of Part 1642 

At its Board Meeting on January 30, 

2010, the LSC Board of Director’s 

determined that retaining the regulatory 

restriction is no longer either necessary 

or appropriate. LSC’s determination 

reflects a number of considerations. 

First, LSC notes that the lifting of the 

restriction indicates that Congress itself 

has had a change of heart regarding this 

restriction. Although Congress did not 

prohibit LSC from retaining the 

restriction, the fact that Congress chose 

not to reimpose this particular 

restriction (and no others) does indicate 

that support for this restriction has 

waned and that the policy arguments in 

support of the original restriction are no 

longer reflective of the will of Congress. 

Rather, the legislative history suggests 

that Congress chose not to reimpose the 

attorneys’ fees restriction in express 

recognition of the fact that the 

restriction imposes several significant 

burdens on recipient. See, H. Rpt. 111– 

149 at p. 163; Transcript of Hearing of 

the Subcommittee on Commerce, Justice 

and Science of the House Committee of 

Appropriations of April 1, 2009 at pp. 

220–223. As such, LSC believes that 

repealing the regulatory restriction is 

consistent with the expectations of 

Congress. 

Moreover, LSC agrees that the 

restriction imposes unnecessary 

burdens on recipients and places clients 

at a disadvantage with respect to other 

litigants. Specifically, the ability to 

make a claim for attorneys’ fees is often 

a strategic tool in the lawyers’ arsenal to 

obtain a favorable settlement from the 

opposing side. Restricting a recipient’s 

ability to avail itself of this strategic tool 

puts clients at a disadvantage and 

undermines clients’ ability to obtain 

equal access to justice. The attorneys’ 

fees restriction can also be said to 

undermine one of the primary purposes 

of fee-shifting statutes, namely to 

punish those who have violated the 

rights of persons protected under such 

statutes. In addition, in a time of 

extremely tight funding, the inability of 

a recipient to obtain otherwise legally 

available attorneys’ fees places an 

unnecessary financial strain on the 

recipient. If a recipient could collect 

and retain attorneys’ fees, it would free 

up other funding of the recipient to 

provide services to additional clients 

and help close the justice gap.1 More 

fundamental, the restriction results in 

clients of grantees being treated 

differently and less advantageously than 

all other private litigants, which LSC 

believes is unwarranted and 

fundamentally at odds with the 

Corporation’s Equal Justice mission. 

This action lifts the regulatory 

prohibition on claiming, or collecting 

and retaining attorneys’ fees available 

under Federal or State law permitting or 

requiring the awarding of such fees. 

Accordingly as of the effective date of 

the regulation, recipients will be 

permitted make claims for attorneys’ 

fees in any case in which they are 

otherwise legally permitted to make 

such a claim.2 Recipients will also be 

permitted to collect and retain 

attorneys’ fees whenever such fees are 

awarded to them. 

With the repeal of the restriction, 

recipients will be permitted to claim 

and collect and retain attorneys’ fees 

with respect to any work they have 

performed for which fees are available 

to them, without regard to when the 

legal work for which fees are claimed or 

awarded was performed. LSC 

considered whether recipients should 

be limited seek or obtain attorneys fees 

related to ‘‘new’’ work; that is, work 

done only as of the date of the statutory 

change or the effective date of this 

Interim Final Rule. LSC rejected that 

position because the attorneys’ fees 

prohibition applies to the particular 

activity of seeking and receiving 

attorneys’ fees, but is irrelevant to the 

permissibility of the underlying legal 

work. Limiting the ability of recipients 

to seek and receive attorneys’ fees on 

only future case work would create a 

distinction between some work and 

other work performed by a recipient, all 

of which was permissible when 

performed. LSC finds such a distinction 

to be artificial and not necessary to 

effectuate Congress’ intention. 

LSC also believes that not limiting the 

work for which recipients may now seek 

or obtain attorneys’ fees will best afford 

recipients the benefits of the lifting of 

the restriction. There may well be a 

number of ongoing cases where the 

newly available option of the 

potentiality of attorneys’ fees will still 

be effective to level the playing field 

and afford recipients additional leverage 

with respect to opposing counsel in 

those cases. Likewise, being able to 

obtain attorneys’ fees in cases in which 

prior work has been performed would 

likely help relieve more financial 

pressure on recipients than a ‘‘new work 

only’’ implementation choice would 

because it would increase sources and 

amount of work for which fees might 

potentially be awarded. 

Amendment of Part 1609 and Part 1610 

As noted above, part 1642 contains 

two provisions not directly related to 

the restriction on claiming and 

collecting attorneys’ fees. These 

provisions address the accounting for 

and use of attorneys’ fees and the 

acceptance of reimbursement from a 

client. 45 CFR 1642.5 and 1642.6. These 

provisions used to be incorporated into 

LSC’s regulation on fee-generating cases 

at 45 CFR part 1609, but were separated 

out and included in the new part 1642 

regulation when it was adopted. 

Amending these provisions is not 

necessary to effectuate the lifting of the 

attorneys’ fees restriction and they 

provide useful guidance to recipients. In 

fact, with recipients likely collecting 

and retaining fees more often than they 

have since 1996, the provision on 

accounting for and use of attorneys’ fees 

will be of greater importance than it has 

been. Retaining these provisions would 

continue to provide clear guidance to 

the benefit of both recipients and LSC. 

Accordingly, LSC is moving these 

provisions back into part 1609 as 

§§ 1609.4 and 1609.5, with only 

technical amendment to the regulatory 

text to remove references to part 1642. 

The current § 1609.4 will be 

renumbered as 1609.6. 

LSC is also making technical 

conforming amendments to delete 

references to part 1642 and the 

attorneys’ fees statutory prohibition that 

are now obsolete. Having obsolete and 

meaningless regulatory provisions is not 

good regulatory practice and can at the 

very least lead to unnecessary 

confusion. Accordingly, LSC is deleting 

paragraph (c) of section 1609.3, General 

requirements, to eliminate that 

paragraph’s reference to the attorneys’ 

fees restriction in part 1642. Similarly, 

LSC is making a technical conforming 

amendment to its regulation at part 

1610. Part 1610 sets forth in regulation 

the application of the appropriations 

law restrictions to a recipient’s non-LSC 

funds. Section 1610.2 sets forth the list 

of the restrictions as contained in 

section 504 of the FY 1996 


cprice-sewell on DSK2BSOYB1PROD with RULES
6818 Federal Register / Vol. 75, No. 28 / Thursday, February 11, 2010 / Rules and Regulations 

appropriations act, and the 

implementing LSC regulations which 

are applicable to a recipient’s non-LSC 

funds. Subsection (b)(9) is the provision 

that references the attorneys’ fees 

restriction (504(a)(13) and part 1642) 

and is now obsolete. 

Request for Comments 

LSC is implementing these changes as 

an Interim Final Rule with a Request for 

Comments. LSC believes this action is 

authorized and appropriate because LSC 

is removing (and not imposing any 

additional) prohibitions or requirements 

on recipients and is doing so in 

response to a specific statutory change 

removing a similar prohibition. LSC 

believes that this course of action will 

provide necessary clarity to recipients 

and will permit recipients and their 

clients to benefit from the statutory and 

regulatory changes at the earliest 

possible date. However, LSC is seeking 

comment on the changes being made 

herein and anticipates issuing a Final 

Rule discussing any comments. 

Interested parties may submit comments 

as provided herein. Comments are due 

to LSC no later than March 15, 2010. 

List of Subjects 

45 CFR Parts 1609 and 1610 

Grant programs—Law, Legal services. 

45 CFR Part 1642 

Grant programs—Law, Lawyers, Legal 

services. 

■ For reasons set forth above, and under 

the authority of 42 U.S.C. 2996g(e), LSC 

hereby amends 45 CFR chapter XVI as 

follows: 

PART 1609—FEE-GENERATING 

CASES 

■ 1. The authority citation for part 1609 

continues to read as follows: 

Authority: 42 U.S.C. 2996f(b)(1) and 

2996e(c)(6). 

§ 1609.3 [Amended] 

■ 2. Paragraph (c) of § 1609.3, is 

removed. 

§ 1609.4 [Redesignated as § 1609.6] 

■ 3. Section 1609.4 is redesignated as 

§ 1609.6. 

■ 4. A new § 1609.4 is added to read as 

follows: 

§ 1609.4 Accounting for and use of 

attorneys’ fees. 

(a) Attorneys’ fees received by a 

recipient for representation supported 

in whole or in part with funds provided 

by the Corporation shall be allocated to 

the fund in which the recipient’s LSC 

grant is recorded in the same proportion 

that the amount of Corporation funds 

expended bears to the total amount 

expended by the recipient to support 

the representation. 

(b) Attorneys’ fees received shall be 

recorded during the accounting period 

in which the money from the fee award 

is actually received by the recipient and 

may be expended for any purpose 

permitted by the LSC Act, regulations 

and other law applicable at the time the 

money is received. 

■ 5. A new § 1609.5 is added to read as 

follows: 

§ 1609.5 Acceptance of reimbursement 

from a client. 

(a) When a case results in recovery of 

damages or statutory benefits, a 

recipient may accept reimbursement 

from the client for out-of-pocket costs 

and expenses incurred in connection 

with the case, if the client has agreed in 

writing to reimburse the recipient for 

such costs and expenses out of any such 

recovery. 

(b) A recipient may require a client to 

pay court costs when the client does not 

qualify to proceed in forma pauperis 

under the rules of the jurisdiction. 

PART 1610—USE OF NON-LSC 

FUNDS, TRANSFERS OF LSC FUNDS, 

PROGRAM INTEGRITY 

■ 6. The authority citation for part 1610 

is revised to read as follows: 

Authority: 42 U.S.C. 2996i; Pub. L. 104– 

208, 110 Stat. 3009; Pub. L. 104–134, 110 

Stat. 1321; Pub. L. 111–117; 123 Stat. 3034. 

§ 1610.2 [Amended] 

■ 7. Section 1610.2 is amended by 

removing paragraph (b)(9) and 

redesignating paragraphs (b)(10) through 

(b)(14) as paragraphs (b)(9) through 

(b)(13) respectively. 

PART 1642—[REMOVED AND 

RESERVED] 

■ 8. Part 1642 is removed and reserved. 

Victor M. Fortuno, 

Interim President. 

[FR Doc. 2010–2895 Filed 2–10–10; 8:45 am] 

BILLING CODE 7050–01–P 

DEPARTMENT OF COMMERCE 

National Telecommunications and 

Information Administration 

47 CFR Part 300 

[Docket Number 100125044–0044–01] 

RIN 0660–AA10 

Revision to the Manual of Regulations 

and Procedures for Federal Radio 

Frequency Management 

AGENCY: National Telecommunications 

and Information Administration, U.S. 

Department of Commerce. 

ACTION: Final Rule. 

SUMMARY: The National 

Telecommunications and Information 

Administration (NTIA) hereby makes 

certain changes to its regulations, which 

relate to the public availability of the 

Manual of Regulations and Procedures 

for Federal Radio Frequency 

Management (NTIA Manual). 

Specifically, the NTIA updates the 

version of the Manual of Regulations 

and Procedures for Federal Radio 

Frequency Management with which 

Federal agencies must comply when 

requesting use of the radio frequency 

spectrum. 

EFFECTIVE DATE: This regulation is 

effective on February 11, 2010. The 

incorporation by reference of certain 

publications listed in the rule is 

approved by the Director of the Federal 

Register as of February 11, 2010. 

ADDRESSES: A reference copy of the 

NTIA Manual, including all revisions in 

effect, is available in the Office of 

Spectrum Management, 1401 

Constitution Avenue, NW, Room 1087, 

Washington, DC 20230. 

FOR FURTHER INFORMATION CONTACT: 

William Mitchell, Office of Spectrum 

Management at (202) 482–8124 or 

wmitchell@ntia.doc.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

NTIA authorizes the U.S. 

Government’s use of the radio frequency 

spectrum. 47 U.S.C. § 902(b)(2)(A). As 

part of this authority, NTIA developed 

the NTIA Manual to provide further 

guidance to applicable Federal agencies. 

The NTIA Manual is the compilation of 

policies and procedures that govern the 

use of the radio frequency spectrum by 

the U.S. Government. Federal 

government agencies are required to 

follow these policies and procedures in 

their use of the spectrum. 

Part 300 of title 47 of the Code of 

Federal Regulations provides 


cprice-sewell on DSK2BSOYB1PROD with RULES