LEGAL SERVICES CORPORATION

REGULATIONS REVIEW TASK FORCE

FINAL REPORT

January 2002 
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Regulations Review Task Force 

Final Report 

January 2002 

Introduction 

Regulations Review Task Force - Mission 

The mission of the Task Force was to conduct a comprehensive review of LSC’s 

regulations to support the Operations & Regulations Committee in the development of a 

Regulatory Agenda for 2001 and beyond. The Task Force has developed this Report for 

the Committee: 

♦ reviewing our regulations to make sure that they properly implement current 

law; 

♦ conducting an analysis to determine whether any of our regulations are 

confusing, unduly burdensome or pose interpretation or enforcement 

problems; 

♦ suggesting basic prioritization categories for action. 

Task Force Composition 

 The members of the Task Force are as follows: Victor Fortuno, Vice President for 

Legal Affairs & General Counsel, Co-Chair; Randi Youells, Vice President for Programs, 

Co-Chair; John Eidleman, Program Counsel – Office of Program Performance; John 

Meyer, Acting Director – Office of Information Management; Bertrand Thomas, Program 

Counsel III - Office of Compliance and Enforcement and Mattie Condray, Senior 

Assistant General Counsel - Office of Legal Affairs. Laurie Tarantowicz, Assistant 

Inspector General and Legal Counsel, serves as the OIG Liaison to the Task Force. 

 

Summary of Activity 

 The Task Force began its work in October, 2000. The Task Force, consonant 

with the direction of the Board solicited written comments from LSC grant recipients 

and other interested parties. The Task Force received six sets of comments. The Task 

Force considered the public comments, along with performing its own internal review 

and analysis of LSC’s regulations, and developed a draft Report of its conclusions. 

Upon the direction of the Operations and Regulations Committee, the draft Report was 

published for comment. The Task Force received comments from the National Legal 

Aid and Defenders’ Association. Upon review of the comments and further discussion 
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among the Task Force and with representatives of NLADA, the Task Force made 

revisions to the draft Report. The conclusions of the Task Force, as embodied in this 

Final Report, have been reviewed and endorsed by LSC senior management. 

The LSC Rulemaking Protocol 

On September 28, 2000, the Board of Directors adopted a new Rulemaking 

Protocol. A copy of the protocol can be found at Attachment A. The Protocol provides 

for increasing public participation in the manner and method in which LSC promulgates 

rules by formalizing LSC's policies governing rulemaking and adopting procedures that 

reflect the best practices in rulemaking as articulated in the Administrative Procedures 

Act, the Negotiated Rulemaking Act of 1990 and Executive Order 12866. Specifically, 

the Protocol provides for the use of both Negotiated Rulemaking and Notice and 

Comment rulemaking, as appropriate. In addition, the Protocol ensures that the Board, 

through the Operations and Regulations Committee, provides direction on LSC 

regulatory policy and establishes priorities for LSC rulemaking activities, while providing 

the authority to the staff to effectuate LSC rulemaking policies and priorities. 

Summary of LSC Regulations and Task Force Analysis 

This section contains a brief description of each Part within Chapter 16 of Title 

45 of the Code of Federal Regulations, the most recent action taken with respect to 

each part and a summary of the Task Force’s analysis relative to that Part. The Task 

Force has divided the regulations into four broad classifications: 

♦ those for which the Task Force does not consider action necessary at this time; 

♦ those regulations which the Task Force considers unnecessary and/or obsolete and 

which the Task Force believes should be deleted in their entirety; 

♦ those regulations which the Task Force considers higher priority items; and 

♦ those regulations which the Task Force considers lower priority items. 

Within the latter two categories, the Task Force believes that there are regulations that 

could benefit from substantive changes and certain regulations which require only 

administrative changes and/or clarifications. In some cases, the Task Force thinks the 

regulations, as a whole, would be easier to use if certain parts, currently separate, were 

combined. In these cases, the Task Force does not necessarily consider substantive 

changes to the rules necessary. Attachments B and C set forth in tabular form a 

summary of the Task Force’s analysis. Attachment D sets for the Task Force’s 

recommendations for action items in a prioritized order. 
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45 CFR Part 1600 – Definitions 

 Part 1600 sets forth definitions for terms used throughout the remainder of the 

LSC Title 45, Chapter 16 regulations. The last major revisions to Part 1600 were 

adopted in 1984, with one additional change being added in 1986. 

 The definitions section needs to be revised, particularly in light of other revisions 

which may be made to other sections. Currently, in some cases a term defined in Part 

1600 is not used elsewhere in the regulations in the exact form as it exists in Part 1600. 

In other cases, there are terms which are used in several regulations which are not 

defined or which are defined only in one substantive Part, rather than in the definition 

section. 

All terms requiring a definition should be defined in Part 1600, unless a specific 

definition, applicable only in the context of a specific regulation, is required. In addition, 

as rulemakings are undertaken on other parts of the regulations, any necessary 

changes to defined terms or the addition of new terms and definitions should be made 

to Part 1600 contemporaneously. 

The Task Force considers Part 1600 a lower priority item. 

45 CFR Part 1601 – Reserved 

 There is no current Part 1601 in the regulations. Until 1994, Part 1601 contained 

the By-laws for the Corporation. In 1994, it was determined, however, that publication 

of the By-laws in the Code of Federal Regulations was neither legally necessary, nor 

desirable. Accordingly, Part 1601 was withdrawn. 

The Task Force is of the opinion that no action is necessary relative to 

Part 1601. 

45 CFR Part 1602 – Procedures for Disclosure of Information Under the 

Freedom of Information Act.

 The regulations at Part 1602 contain the rules and procedures the Corporation 

follows in making agency records available to the public under the Freedom of 

Information Act. The 1602 regulations were substantially revised in 1998 to incorporate 

then-new statutory requirements relating to electronic records, time limits and 

standards for processing requests. Additional changes regarding procedures for Office 

of the Inspector General records requests were also made. 

 Notwithstanding the relatively recent revisions, some additional amendments to 

LSC’s FOIA regulation are in order. First, there are a few nomenclature references (i.e., 
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the regulation makes reference to the Office of the General Counsel, which is now the 

Office of Legal Affairs) which should be fixed. Second, pursuant current LSC practice if 

a request is received for the records of third party (i.e., a grant application submitted by 

a current or prospective recipient), LSC provides that party with an opportunity to 

request that some or all of the records requested be withheld under one (or more) of 

the exemptions listed in the regulation, prior to LSC sending its response to the 

requestor. This practice, which is consistent with current FOIA law, is not mentioned in 

the regulations, but should be. 

The Task Force considers Part 1602 to be a higher priority item. 

45 CFR Part 1603 – State Advisory Councils 

 Part 1603 provides authority for the appointment of state advisory councils in 

accordance with section 1004(f) of the LSC Act. This regulation has not been amended 

since it was first adopted in 1975. Although this regulation is little used today, the 

statutory language underpinning the regulation remains in effect. Moreover, it may be 

appropriate to consider the relevance of state advisory councils in the context of the 

development of state justice communities. 

The Task Force believes that no action is necessary relative to Part 

1603 at this time. 

45 CFR Part 1604 – Outside Practice of Law 

 Part 1604 contains a general prohibition on the outside practice of law by LSC 

recipient attorneys and sets forth the conditions under which certain practices, including 

the outside practice of law, is permissible. The current version of this regulation dates 

from 1976. Proposed revisions were published in 1995, but no final action was ever 

adopted. The proposed revisions were intended to clarify the exact scope of the 

restrictions on compensated and uncompensated outside practice of law and allow for 

the separate treatment of court appointments. 

 The issues outstanding in 1995 are still important today. In addition, since that 

time a significant number of Office of Legal Affairs opinions interpreting 1604 have been 

issued. It is appropriate to clarify the regulations to incorporate some of these 

interpretations so as to improve the utility of the regulation in the field. 

The Task Force considers Part 1604 a higher priority item. 
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45 CFR Part 1605 – Appeals on Behalf of Clients 

 Under this Part, recipients are required to have a policy to review cases before 

taking appeals. This is intended to promote efficient and effective use of LSC funds. 

This regulation has not been amended since it was adopted in 1976. 

The Task Force believes that no action is necessary relative to Part 

1605 at this time. 

45 CFR Part 1606 – Termination and Debarment Procedures; Recompetition 

 This Part sets forth procedures for action to deal with incidents of substantial 

non-compliance by recipients with LSC statutory or regulatory requirements and other 

policies, instructions or grant terms and conditions, (including due process requirements 

which must be followed before LSC may terminate and/or debar a recipient). This 

regulation was substantially revised in 1998. Those revisions implemented major 

changes imposed by the 1996 LSC appropriations legislation allowing LSC to terminate 

funding, deny refunding, recompete service areas and to debar recipients for good 

cause. 

 One issue which was not broached in the 1998 revisions is that of “lesser 

sanctions” – that is, the ability of LSC to impose a sanction of something less than full 

suspension or termination. There is nothing in the LSC’s governing statutes (the LSC Act 

or current appropriations act) which would indicate that LSC lacks the authority to 

apply lesser sanctions, but, in the absence of procedures therefor, LSC has been 

reluctant to do so. Indeed, the Board has directed that LSC not impose lesser sanctions 

absent a formal rulemaking. However, the Office of Compliance and Enforcement has 

expressed an interest in being able to impose a lesser sanction in cases where there is 

a non-compliance, but in which the severity of the violation is such that a full 

suspension or termination of funding is a disproportionate penalty. In addition, the 

Office of Inspector General has recommended that LSC develop procedures for the 

imposition of lesser sanctions. The adoption of standards for the imposition of lesser 

sanctions would provide LSC with needed flexibility in enforcement mechanisms and 

relieve recipients of the risk of total funding revocation for relatively minor violations. 

In addition to the issue of lesser sanctions, the Task Force notes that Part 1606 

is related to Part 1618, Enforcement Procedures, and Part 1623, Suspension 

Procedures, as all three Parts deal with LSC enforcement of the regulations. There 

does not appear to be a compelling reason for having these issues covered in separate 

regulations. Rather, consolidating the three Parts into one regulation would serve to 

simplify LSC’s overall regulatory scheme. It would be appropriate to consider adoption 

of a program for application of lesser sanctions in the context of a comprehensive 

review of 1606, 1618 and 1623. 
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The Task Force considers Part 1606 a higher priority item. 

45 CFR Part 1607 - Governing Bodies 

 Part 1607 requires recipients to have governing or policy bodies comprised of 

attorneys appointed by State and/or local bar associations and eligible clients. The 

current version of the rule was adopted in 1994. This revision included a number of 

clarifying changes along with some policy revisions and interpretations. 

Part 1607 was the subject of discussion at the LSC/NLADA joint conference on 

diversity in the legal services community, help on May 30 – June 1, 2001, in 

Washington, DC. The conferees discussed the current lack of diversity among recipient 

governing bodies and identified the requirements of 1607 as a contributing factor to 

this state of affairs. Accordingly, it appears appropriate to examine Part 1607 to see 

how any barriers to diversity within the legal services community may be ameliorated. 

The Task Force considers Part 1607 a higher priority item. 

45 CFR Part 1608 – Prohibited Political Activities 

 The Part 1608 regulations set forth the general prohibitions on engaging in 

political activities applicable to Corporation employees and recipient staff attorneys, 

These provisions are designed to ensure that LSC resources are not used to promote or 

support political activities or interests, consistent with the first amendment and 

professional responsibilities applicable to LSC employees and recipient staff attorneys. 

Part 1608 was last amended in 1978. 

A Notice of Proposed Rulemaking proposing to update the regulation was 

published in 1994, but no final action on the proposal was ever taken. The 1994 NPRM 

proposed to substantively expand the scope of certain prohibitions, as well as make a 

number of clarifying and structural changes intended to make the rule easier to use and 

apply. The need for these changes still exists. 

The Task Force considers Part 1608 a lower priority item. 

45 CFR Part 1609 – Fee Generating Cases 

 Part 1609 contains a general prohibition on recipients taking fee-generating 

cases and provides instruction on the circumstances under which a recipient may take 

such cases. This Part was last revised in 1997 in connection with the rulemakings 

implementing the various restrictions imposed by the 1996 Appropriations Act. 

Specifically, among the restrictions imposed was a ban on the claiming or acceptance of 
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attorney’s fees. Prior to this time, while recipients were generally prohibited from 

taking cases likely to generate fees, recipients were not prohibited from accepting 

attorney’s fees when such were awarded (pursuant to fee-shifting statutes and the 

like). With the new restriction, LSC removed the previously existing provisions on 

attorney’s fees from 1609 and created a new regulation (Part 1642) setting forth the 

attorney’s fee ban. In addition, some other aspects of the rule were changed. A 

clarification of what is not considered a fee-generating case was added, and some 

additional latitude was provided to recipients regarding when a fee-generating case 

may be taken. 

The Task Force believes that no action is necessary relative to Part 

1609 at this time. 

 45 CFR Part 1610 – Use of Non-LSC Funds, Transfers of LSC Funds, Program 

Integrity 

 Part 1610 implements the statutory restriction on the use of non-LSC funds for 

any purpose for which use of LSC funds is prohibited. Part 1610 was amended in 1997, 

following litigation challenging the first version of 1610 promulgated after the passage 

of the FY 1996 appropriations act. In that litigation, the regulatory regime was deemed 

improper in not allowing adequate alternative channels for LSC funded organizations to 

undertake their constitutionally protected client representational activities with non-LSC 

funds. The revised rule allows an LSC grantee to transfer non-LSC funds free of LSC 

restrictions and created an avenue for constitutionally protected expression through 

‘interrelated organizations’ that are ‘physically and financially separate’ from LSC 

grantees. Under the final rule, an LSC program may transfer non-LSC funds to a third 

party non-LSC grantee, and such recipient entity may use the funds so transferred for 

the purposes for which they were initially granted, provided that there is complete 

program integrity between the LSC program and the non-LSC recipient entity. 

The Task Force is of the opinion that no action is necessary on Part 

1610 at this time. 

45 CFR Part 1611 – Eligibility 

 Part 1611 sets forth the requirements relating to determination and 

documentation of client eligibility. The current version of 1611 (a copy of which is 

attached to this Interim Report) was adopted in 1983. There have been two proposed 

revisions to 1611 published since then, one in 1989 and another in 1995, but neither 

rulemaking was completed and the proposed rules were each withdrawn. 

 The 1989 proposed revision would have added a provision to prohibit the 

representation of ineligible clients with non-LSC derived funds. Although the Board of 
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Directors approved this proposed revision in 1989, no final rule adopting the change 

was published, largely due to a proviso in the FY 1990 LSC appropriations bill, P.L. 101-

162, prohibiting LSC from subjecting LSC grant recipients to any amendments to 

regulations relating to the use of private funds which were not in effect as of October 

1988. The proposed rule was eventually formally withdrawn in 1993. 

The 1995 proposed revision represented a major overhaul of the regulation. The 

product of significant discussions and negotiation among LSC staff and representatives 

of the field, the proposed rule reflected an attempt to clarify and simplify the rule 

without changing most of the underlying policies and concepts of the rule. However, no 

further action was taken on this proposed rule, again because of Congressional action 

restricting LSC’s authority to engage in rulemaking. Since that time, both of those 

Congressional limitations on LSC rulemaking activity have been lifted. 

Part 1611 has previously been identified by staff and field representatives as still 

in need of improvement. The outstanding issues prompting the 1995 proposed 

rulemaking remain extant and there are other issues, particularly related to 

documentation requirements, which may now be appropriate for discussion. In 

addition, there is a FY1998 statutory change which needs to be incorporated into the 

regulation. 

In light of the above, a Negotiated Rulemaking has been instituted to consider 

revisions to Part 1611. 

Due to the ongoing rulemaking, no additional action by the Board is 

necessary on Part 1611 at this time.

45 CFR Part 1612 – Restrictions on Lobbying and Certain Other Activities 

 Part 1612 prohibits LSC recipients and their employees from engaging in (with 

limited exceptions) representation before legislative bodies or other direct lobbying, 

grassroots lobbying, participation in rulemaking, public demonstrations, advocacy 

training and certain organizing activities. Although certain restrictions on the use of 

LSC funds to engage in lobbying have always applied to LSC recipients, this regulation 

was revised significantly in 1997 to implement additional restrictions contain in the FY 

1996 appropriations act. The revised Part 1612 extended the prohibition on lobbying 

and related activities to include activities conducted with non-LSC funds as well as LSC 

funds, and provided greater guidance on the exceptions to the basic prohibitions, 

related to occasions in which recipients may participate in public rulemaking activities, 

respond to requests for legislative and administrative bodies, and engage in self-interest 

lobbying. 
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The Task Force is of the opinion that no action is necessary on Part 

1612 at this time.

45 CFR Part 1613 – Restrictions on Legal Assistance with Respect to Criminal 

Proceedings 

 Part 1613 is designed to ensure that Corporation funds are not used to provide 

legal assistance with criminal proceedings unless such assistance is required as part of 

an attorney’s responsibilities as a member of the bar. Adopted in 1978, the regulation 

has not been amended since then. While the substantive elements of the regulation 

are clear and not in need of revision, the Task Force notes that Part 1613 is closely 

related to Part 1615, Restrictions on actions collaterally attacking criminal convictions. 

There does not appear to be a compelling reason for having these issues covered in 

separate regulations. Rather, consolidating the two Parts into one regulation would 

serve to simplify LSC’s overall regulatory scheme. 

 The Task Force considers Part 1613 a lower priority item. 

45 CFR Part 1614 – Private Attorney Involvement 

 Part 1614 sets forth the requirements related to the involvement of private 

attorneys in the delivery of legal assistance to eligible clients. Under the regulation 

recipients must devote an amount equal to at least 121⁄2% of the recipient’s annualized 

basic field award to efforts to recruit and refer cases to private attorneys. Last 

amended in 1985, there are substantive questions about what may be properly counted 

toward the PAI requirement and LSC is concerned about accountability for PAI activity 

under the current regulations. In addition, aspects of the rule are inconsistent with LSC 

regulations at Part 1611 and 1626. 

The Task Force considers Part 1614 a lower priority item. 

45 CFR Part 1615 – Restrictions on Actions Collaterally Attacking Criminal 

Convictions 

 Part 1615 prohibits the provision of legal assistance in an action in the nature of 

habeas corpus seeking to collaterally attack a criminal conviction. This regulation is 

rooted in a similar prohibition contained in the LSC Act. Originally adopted in 1976, the 

regulation has not been amended since then. While the substantive elements of the 

regulation are clear and not in need of revision, the Task Force notes that Part 1615 is 

closely related to Part 1613, Restrictions on legal assistance with respect to criminal 

proceedings. There does not appear to be a compelling reason for having these issues 

covered in separate regulations. Rather, consolidating the two Parts into one regulation 

would serve to simplify LSC’s overall regulatory scheme. 
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The Task Force considers Part 1615 a lower priority item. 

45 CFR Part 1616 – Attorney Hiring 

 Part 1616 requires recipients to establish hiring qualifications for the attorneys 

they hire and to seek recommendations for candidates from the local Bar. The Part 

1616 regulations also require recipients to adopt equal employment and affirmative 

action policies, to provide preferences for local applicants, and have employment 

policies to ensure that clients can get legal assistance in languages other than English, 

where necessary. Part 1616 was first adopted in 1976 and has not been amended 

since then. 

 Part 1616 has its roots in section 1007(a)(8) of the LSC Act which requires 

recipients to solicit the recommendations of the organized bar in the community being 

served before filling staff attorney and to give preference in filling such positions to 

qualified persons who reside in the community to be served. This was intended to 

promote a cooperative relationship between the recipient and the local Bar and 

community. 

While the goals of Part 1616 remains appropriate, there are specific aspects of 

Part 1616 which deserve a fresh review. For example, while the regulation requires 

compliance with all applicable equal employment laws, the regulations also require 

recipients to engage in “affirmative action” and permit recipients to consider the 

“cultural similarity” of applicants to the client community. In the 25 years since the 

original promulgation of these rules, developments in equal employment law and policy 

may have put these aspects of the regulations somewhat at odds with each other and 

terms which may have had one meaning when the regulation was promulgated may 

have another now. Thus, it is appropriate to review the regulation to see if there are 

modifications which will permit LSC and recipients to continue to pursue cooperative 

relationships with the local Bar and community, to promote equal employment 

opportunity, to value diversity in the workplace and to provide appropriate, high quality 

service to clients, while, at the same time, better reflect the current state of the law. 

The Task Force considers Part 1616 a lower priority item. 

45 CFR Part 1617 – Class Actions 

 Part 1617 implements the prohibition on recipient’s initiating or participating in 

class action lawsuits contained in the FY 1996 appropriations act. This prohibition, 

adopted in 1996, has not been amended since then. 
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The Task Force is of the opinion that no action is necessary on Part 

1617 at this time. 

45 CFR Part 1618 – Enforcement Procedures 

 Part 1618 establishes procedures for LSC enforcement of recipient compliance 

with the LSC Act and regulations. The regulations require recipients to have procedures 

for processing complaints that employees have committed violations of the Act or 

regulations and for determining appropriate sanctions to be imposed for violations. In 

addition, Part 1618 sets forth the Corporation’s obligations to investigate allegations of 

violations by recipients. This regulation was adopted in 1976 and has not been 

amended since then. 

 While the substantive elements of the regulation are clear and not in need of 

revision, the Task Force notes that Part 1618 is related to Part 1606, Termination and 

Debarment Procedures, and Part 1623, Suspension, as all three Parts deal with LSC 

enforcement of the regulations. There does not appear to be a compelling reason for 

having these issues covered in separate regulations. Rather, consolidating the three 

Parts into one regulation would serve to simplify LSC’s overall regulatory scheme. In 

addition, none of the LSC regulations provide for the imposition of penalties short of 

suspension, termination or debarment. Both LSC and recipients would benefit from 

additional flexibility in enforcement options. In the context of a review of 1606, 1618 

and 1623, it would be appropriate to consider adoption of a program for application of 

lesser sanctions. 

The Task Force considers Part 1618 a higher priority item. 

45 CFR Part 1619 – Disclosure of Information 

 Part 1619 requires recipients to adopt procedures, subject to LSC approval, for 

affording appropriate public access to the LSC Act and regulations, to recipient policies, 

procedures and guidelines. This regulation has not been amended since it was first 

adopted in 1977. 

 

 The Task Force believes that no action is necessary relative to Part 

1619 at this time. 

45 CFR Part 1620 – Priorities in Use of Resources 

 Part 1620 requires recipients to adopt written priorities regarding the types of 

cases and matters to which the recipient will devote its resources and provides 

guidance to recipients on the factors to be used in developing the required priorities. 

The regulations require that the priorities be reviewed annually and provide for 
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reporting (both the recipient’s governing board and to LSC) on compliance with the 

priority policy and the review of priorities. Adopted in its final form in 1997, Part 1620 

implements a prohibition first contained in the FY 1996 appropriations legislation which 

prohibits recipients from expending resources on activities outside their specific 

priorities. The regulation had not been amended since it became final. 

The Task Force is of the opinion that no action is necessary on Part 

1620 at this time. 

45 CFR Part 1621 – Client Grievance Procedure 

 Part 1621 requires recipients to establish a grievance committee and procedures 

for receiving and investigating complaints that service was improperly denied or that 

service provided was inadequate. The purpose of Part 1621 is to ensure that recipients 

are accountable to those persons they are expected to serve. This regulation was 

adopted in 1977 and has not been amended since then. A NPRM was published in 1994 

which would have instituted some more specific requirements for the grievance process 

and clarified the situations in which access to the grievance process is appropriate. No 

final action was ever taken on the 1994 NPRM, however, and the original regulation 

remains in effect. The issues from the NPRM are extant and the regulation should be 

revisited. 

The Task Force considers Part 1621 a higher priority item. 

45 CFR Part 1622 – Public Access to Meetings under the Government in the 

Sunshine Act. 

 Under the terms of the LSC Act, notwithstanding that LSC is not a department, 

agency or instrumentality of the Federal Government, LSC is subject to the Government 

in the Sunshine Act. The regulations at Part 1622 implement the open meetings 

requirement of that Act for LSC. First adopted in 1978, the rules stated the basic 

requirement that meetings of the Board and Committees are to be open to the public, 

except under limited circumstances set forth in the regulations, and that timely public 

notice of meetings must be provided. Part 1622 was revised in 1984 and again in 1985. 

The 1984 revisions made four principle changes to the regulations: definitions for 

“public observation” and “publicly available” were adopted; the public notice 

requirement was amended to provide that notices of meeting must be provided to 

recipient governing boards rather than to recipients; the language of the section on 

procedures for closing meetings was amended to more closely track the language of the 

Sunshine Act; and a new section, 1622.9, was added to provide for emergency 

proceedings whereby meetings could be moved to new locations if disruptive persons 

were impeding the Directors from conducting business. The 1985 final rule completely 

revised emergency proceedings section to permit the Board have persons disrupting 
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public meetings removed rather than moving the meeting. This revision was intended 

to ensure that the business of the Board and Committees can be carried out without 

interruption by disruptive persons, but in a manner consistent with the Sunshine Act 

requirements. 

 One notable aspect of 1622 is that it exceeds the requirements of the Sunshine 

Act in one important respect. The Sunshine Act requires that meetings of the Board be 

publicly noticed and open to public observation. The Corporation, however, in 

implementing the open meetings requirement, extended it to include meetings of nonExecutive Committees. Thus, under Part 1622, meetings of non-Executive Committees 

must each be publicly noticed and open to public observation, even though the 

Sunshine Act does not require such a result. While changing the regulations to remove 

non-Executive Committees from the public notice and open meeting requirements 

would afford such Committee’s considerably greater flexibility in conducting their 

business, it would very likely be vigorously opposed by the field which would interpret 

such a move as an attempt by LSC to shut the public out of the business of the 

Corporation. 

The Task Force considers Part 1622 a lower priority item. 

 

45 CFR Part 1623 – Suspension Procedures 

 Part 1623 sets forth procedures for the suspension by LSC of a recipient’s 

funding in situations in which it is necessary to protect LSC funds or to ensure the 

recipient’s compliance with applicable laws, regulations, policies and instructions of LSC 

or the grant conditions applicable to the recipient’s grant. When Part 1623 was first 

adopted in 1978, LSC’s authority to suspend a recipient’s funding was restricted by the 

LSC Act and could only be exercised after the recipient had been provided reasonable 

notice and an opportunity to show cause why the action should not be taken. 

Reflecting this position that suspension should only be used as a last resort, the original 

Part 1623 limited the Corporation to instituting suspensions for only “substantial” 

failures to comply with the law, and then only for a maximum of 30 days. 

 The landscape changed significantly in the mid-1990’s. First, in 1996, LSC 

moved to a competitive grant system, ending the right of recipients to automatic 

refunding. Second, the FY 1998 appropriations act reflected Congress’ intent to 

strengthen the ability of LSC to ensure that recipients are in full compliance with the 

law. Consequently, LSC adopted significant revisions to Part 1623 in 1998. These 

revisions streamlined the hearing procedures for suspensions of funding and included 

provisions for longer periods of suspension in certain circumstances. 

 While the substantive elements of the regulation are clear and not in need of 

revision, the Task Force notes that Part 1623 is related to Part 1606, Termination and 
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Debarment Procedures, and Part 1618, Enforcement Procedures, as all three Parts deal 

with LSC enforcement of the regulations. There does not appear to be a compelling 

reason for having these issues covered in separate regulations. Rather, consolidating 

the three Parts into one regulation would serve to simplify LSC’s overall regulatory 

scheme. In addition, none of the LSC regulations provide for the imposition of penalties 

short of suspension, termination or debarment. Both LSC and recipients would benefit 

from additional flexibility in enforcement options. In the context of a review of 1606, 

1618 and 1623, it would be appropriate to consider adoption of a program for 

application of lesser sanctions. 

The Task Force considers Part 1623 a higher priority item. 

45 CFR Part 1624 – Prohibition Against Discrimination on the Basis of 

Handicap 

 Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. §706), as amended, 

prohibits discrimination on the basis of handicap by recipients of Federal assistance. As 

recipients of federal assistance, LSC grant recipients are subject to the nondiscrimination requirements of Section 504. At the same time, while the Corporation is 

not obligated to enforce Section 504 of the Rehabilitation Act (since it is not an agency, 

department or instrumentality of the Federal government), it does have the authority to 

ensure that LSC grant recipients comply with its provisions. LSC chose to exercise this 

authority and adopted the Part 1624 regulations implementing the non-discrimination 

requirements in Section 504 in 1979. The regulations have not been amended since 

that time. 

 Although Section 504 remains applicable to LSC recipients, the passage of the 

Americans with Disabilities Act of 1991 (ADA) has imposed a host of independent 

requirements relating to non-discrimination in services and employment on LSC 

grantees. Specifically, LSC recipients are directly subject to the non-discrimination 

provisions of Title I of the ADA, relating to discrimination in employment, and Title III 

of the ADA, relating to public accommodations, and the respective implementing Equal 

Employment Opportunity Commission and Department of Justice regulations. 

The Part 1624 regulations do not address the ADA and there is widespread 

agreement that the regulations are in need of updating to account for the ADA. 

Moreover, in light of the themes and concerns raised by the LSC-NLADA Diversity 

Conference, the issues of the provision of legal services to persons with disabilities and 

employment by legal services programs of persons with disabilities suggest that a 

thorough review of Part 1624 is overdue. 

The Task Force considers Part 1624 a higher priority item. 
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45 CFR Part 1625 - Reserved 

There is no current Part 1625 in the regulations. Until 1998, Part 1625 contained 

the regulations governing denial of an application for the refunding of a grant. After 

the institution of the competitive grant system in 1996, whereby grant recipients no 

longer have a right to refunding and must reapply for a new grant at the end of each 

grant term, the rules at Part 1625 were rendered both superfluous and inconsistent 

with applicable law. Accordingly, Part 1625 was rescinded in 1998 in connection with 

the adoption of new rules relating to termination and debarment procedures, 

recompetition and denial of refunding at Part 1606. 

The Task Force is of the opinion that no action is necessary relative to 

Part 1625. 

45 CFR Part 1626 – Restrictions on Legal Assistance to Aliens 

 Part 1626 sets forth the basic requirement that recipients are prohibited from 

providing legal assistance to ineligible aliens, and the circumstances and conditions 

under which services to eligible aliens may be provided. The original Part 1626 

regulation was adopted in 1983, in compliance with Congressional directives limiting 

services to aliens. The current version of this rule dates to 1997 and incorporates 

additional conditions imposed by Congress, as contained in the FY1996 and FY1997 LSC 

appropriations bills. 

 Although Part 1626 was amended relatively recently, this regulation has been 

identified both by staff and field representatives as in need of additional amendment. 

In the years since its last amendment, several practical issues have emerged, such as 

issues relating to documentation requirements, representation of groups of aliens, and 

representation of legal aliens not currently covered by the rule. In addition, recent 

amendments to the Violence Against Women Act need to be incorporated into the 1626 

regulations. The Task Force also notes that the Board has already identified 1626 as an 

appropriate subject for rulemaking as it relates to the incorporation of the findings of 

the Erlenborn Commission as adopted by the LSC Board of Directors in 1999. 

 

In light of the above, a Negotiated Rulemaking has been instituted to consider 

revisions to Part 1626. 

Due to the ongoing rulemaking, no additional action by the Board is 

necessary on Part 1626 at this time.

45 CFR Part 1627 - Subgrants and Memberships Fees or Dues
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 Part 1627 sets forth rules under which Corporation funds may be transferred by 

recipients to other organizations, including other recipients. First adopted in 1983, Part 

1627 is intended to promote accountability for LSC funds and compliance with the LSC 

Act and regulations by requiring LSC approval of subgrants and limiting the amount of 

LSC funds which could be spent on fees and dues for membership organizations. 

 Part 1627 was amended in 1996 and 1997 to incorporate changes required by 

the FY 1996 LSC appropriations legislation. That legislation prohibited the use of LSC 

funds to pay membership dues to any private or non-profit organization. Under the 

revised rule, recipients may not use any LSC funds to pay for membership fees or dues 

for the recipient or any of its employees to belong to a private or non-profit 

organization, except for fees or dues mandated by a governmental organization to 

engage in a profession (i.e., mandatory bar dues). Recipients may use non-LSC funds 

for the payment of membership fees or dues. 

 Questions about the interaction of Part 1627 and Part 1610 (relating to the 

transfer of funds) suggest that it may be appropriate to revisit this regulation. 

The Task Force considers Part 1627 a lower priority item. 

45 CFR Part 1628 – Recipient Fund Balances 

 Part 1628 prescribes the amount of a recipient’s grant which may be carried over 

from one year to the next and provides procedures for LSC waiver of the carryover 

ceilings. First adopted in 1984 in response to GAO criticism that LSC was permitting 

recipients to maintain excess fund balances, Part 1628 is intended to ensure the timely 

expenditure of LSC funds for the effective and economical provision of high quality legal 

services. The rule was just revised in November, 2000, to provide LSC with more 

discretion in granting waivers of the carryover ceilings. 

The Task Force is of the opinion that no action is necessary on Part 

1628 at this time.1

45 CFR Part 1629 – Bonding of Recipients

 

1

 There was a split among the Task Force on this recommendation. Several members dissented from this 

recommendation, believing that the LSC Board Of Directors should give serious consideration to 

amending Part 1628 to permit LSC, under carefully controlled circumstances, to consider and approve 

waivers of the 25% excess fund balance cap in cases where two or more programs are undergoing 

consolidation or merger and can demonstrate that the excess fund balance dollars are needed to defray 

some of the costs of the consolidation/merger (i.e. the need to equalize salaries, the need to ensure a 

common technology platform, the need to address the relative equity requirements of Program Letter 

2000-7, etc). 
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 Part 1629 requires bonding of recipients which are not governmental entities to 

insure against losses resulting from fraud on the part of recipient directors, officers and 

employees. Part 1629 was adopted in 1984 in response to several instances of misuse 

and misappropriation of funds and embezzlement. The rule has not been amended 

since that time. 

The Task Force is of the opinion that no action is necessary on Part 

1629 at this time. 

45 CFR Part 1630 – Cost Standards and Procedures 

 Part 1630 sets forth the cost standards and procedures applicable to LSC grants 

and contracts. Prior to the promulgation of Part 1630 in 1986, this information was 

contained in the LSC Audit Guide and Instruction 83-8. As part of an effort to revise the 

Audit Guide, LSC decided that it would be better to set forth comprehensive guidance in 

regulatory form. Consequently, Part 1630 established a comprehensive set of 

standards and procedures for use in determining which costs are allowable, which costs 

require prior LSC approval, how such approval is obtained and how disallowed cost 

decisions are made and reviewed. 

 Part 1630 was substantially revised in 1997 to bring it into conformance with the 

Inspector General Act (5 U.S.C. App.3), and the then-current LSC Audit Guide. In 

addition, the revisions brought the rule into conformance with several relevant Office of 

Management and Budget Circulars (OMB). The FY 1996 appropriations legislation 

required LSC to develop audit follow-up procedures that meet the requirements of OMB 

Circular A-50, Audit Follow-Up. LSC determined that adopting pertinent provisions of 

other OMB Circulars applicable to Federally funded non-profit organizations, although 

not required, would also be appropriate. 

The Task Force is of the opinion that no action is necessary on Part 

1630 at this time.

45 CFR Part 1631 – Expenditure of Grant Funds

 Part 1631 was promulgated in 1986 in response to Congressional concerns that 

significant amounts of pre-1982 funds were being stockpiled by recipients and spent on 

activities which were not prohibited at the time the funds were appropriated, but which 

were later prohibited (and on which the recipients could not spend currently 

appropriated funds). Part 1631 requires that no LSC funds may be expended, except as 

in accordance with the restrictions contained in the Corporation’s FY 1985 

appropriations measure (P.L. 99-180). The general staff consensus is that Part 1631 no 

longer has any continuing viability and should be eliminated. 
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The Task Force believes that Part 1631 should be deleted in its 

entirety. 

45 CFR Part 1632 – Redistricting 

 Part 1632 prohibits recipients from engaging in political redistricting activities. 

The original version of the rule, adopted in 1989, contained a general prohibition but 

allowed the use of some non-LSC funds for redistricting activities. Part 1632 was 

revised in 1996 to prohibit recipients from engaging in any redistricting activities, 

regardless of the source of the funds for such efforts. The amendment stemmed from 

a restriction on all redistricting activities contained in the FY 1996 appropriations act. 

Part 1632 has not been amended since that time. 

The Task Force is of the opinion that no action is necessary on Part 

1632 at this time.

45 CFR Part 1633 – Restriction on Representation in Certain Eviction 

Proceedings

 Part 1633 prohibits recipients from defending persons in public housing eviction 

proceedings when the person is facing eviction due to that persons illegal drug activity. 

Adopted in 1996, Part 1633 implements a restriction on such representation contained 

in the FY 1996 appropriations act. Part 1633 has not been amended since that time. 

The Task Force is of the opinion that no action is necessary on Part 

1633 at this time.

45 CFR Part 1634 – Competitive Bidding for Grants and Contracts 

 Part 1634 enunciates the competitive bidding process used by LSC to award 

grants to recipients. Responding to Congressional interest, the Corporation began 

considering the adoption of a competitive bidding process in 1989. LSC issued a 

proposed rule to institute competitive bidding for grants in 1995, this time in 

anticipation of legislation directing the adoption of a competitive grant system, finalizing 

the rule in 1996 just prior to the passage of the FY 1996 appropriations law which 

required such a system. Part 1634 has not been revised since that time. 

 After several years of experience with the competitive grant process, an internal 

staff effort is being undertaken to review the process generally to see how the it can 

be improved. This effort may result in some recommendations for changes in the 

regulation, along with other improvements to the process not necessarily tied to the 

requirements in Part 1634. 
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The Task Force is of the opinion that no action on part 1634 is 

appropriate at this time, pending the outcome of the review of the 

competition process currently underway. 

45 CFR Part 1635 – Timekeeping 

 Part 1635 requires each recipient to keep time records for all attorneys and 

paralegals employed by the recipient. Originally adopted in 1996 in anticipation of 

legislation containing a recipient timekeeping requirement, Part 1635 is intended to 

improve the accountability for LSC fund expenditures by providing for a system of 

accurate and contemporaneous records of cases, matters and supporting activities for 

which the funds have been expended. 

 In February of 1998, the LSC’s Office of Inspector General (OIG) issued a 

Summary Report on Audits of Selected Grantees for Compliance with Selected 

Regulations which found that timekeeping records could not demonstrate that 

recipients’ part-time attorneys and paralegals do not work on restricted activities during 

any time for which they are compensated by the recipient for their services. The OIG 

recommended that the LSC revise its timekeeping rule to require that part-time 

attorneys and paralegals maintain timekeeping records for all hours worked for the 

recipient by date and time of day. In response to this Report, LSC published a Notice of 

Proposed Rulemaking (NPRM) for public comment in October 1998. 

After considering the comments received on the NPRM, along with the 

recommendations of the OIG and staff, LSC decided to retain certain elements of the 

NPRM, revise others, and to republish the proposed rule for further public comment. 

The new proposed rule (“republished NPRM”), issued in April 1999 (64 FR 16383), 

replaced the previous proposal that part-time attorneys and paralegals be required to 

record the exact date and time for time worked with a certification requirement and 

retained the previously proposed requirement that all attorney and paralegal time 

records provide the date for each timekeeping entry. Finally, LSC deleted the 

previously proposed requirement that time keeping records be consistent with payroll 

records. Although LSC did not agree with the comments that the proposal would 

require recipients to run afoul of the Fair Labor Standards Act, LSC determined that the 

proposed recordkeeping consistency requirement was not necessary. LSC made a 

number of additional revisions to the rule and published it as a final rule in July 2000. 

The Task Force is of the opinion that no action is necessary on Part 

1635 at this time.
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45 CFR Part 1636 – Client Identity and Statement of Facts 

 Part 1636 implements a restriction contained in the FY 1996 appropriations law 

that requires recipients to identify by name each plaintiff they represent in any litigation 

and to have each plaintiff sign a written statement of facts on which the complaint is 

based before undertaking the representation on the plaintiff’s behalf. Published in 

1997, Part 1636 has not been revised since that time. Since being published, questions 

regarding the interpretation of Part 1636 have arisen and staff believes that the 

language of the regulation is in need of clarification. 

The Task Force is of the opinion that no action is necessary on Part 

1636 at this time.

45 CFR Part 1637 – Representation of Prisoners 

 Part 1637 prohibits recipients from participating in any civil litigation on the 

behalf of prisoners. Adopted in 1997 in response to a directive in the FY 1996 

appropriations bill, Part 1637 also prohibits recipients from providing representation to 

prisoners in any administrative proceeding challenging the conditions of the 

incarceration. Part 1637 has not been amended since that time. 

The Task Force is of the opinion that no action is necessary on Part 

1637 at this time.

45 CFR Part 1638 – Restriction on Solicitation 

 Part 1638 prohibits recipients from representing clients as a result of in-person, 

unsolicited advice. Part 1638 was promulgated in 1997 to adopt a prohibition on 

soliciting clients contained in the FY 1996 appropriations bill. Part 1638 has not been 

amended since it was first issued. 

The Task Force is of the opinion that no action is necessary on Part 

1638 at this time.

45 CFR Part 1639 – Welfare Reform 

 Part 1639, issued in 1997, implements a restriction contained in the FY 1996 

appropriations act that prohibits LSC recipients from initiating legal representation or 

participates in any other way, in litigation, lobbying, or rulemaking, involving an effort 

to reform a Federal or State welfare system, except for representing an individual 

eligible client who is seeking specific relief from a welfare agency if such relief does not 

involve an effort to amend or otherwise challenge existing law in effect on the date of 

the initiation of the representation. 
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 On February 28, 2001, the United States Supreme Court issued a decision in 

Legal Services Corporation v. Velazquez, et al., Nos. 99-603 and 99-960, 121 S. Ct. 

1043, 2001 WL 193738 (U.S.), striking down as unconstitutional the restriction 

prohibiting LSC grantees from challenging welfare reform laws when representing 

clients seeking specific relief from a welfare agency. The Supreme Court invalidated 

that portion of the underlying statute which provides that representation of an 

individual eligible client seeking specific relief from a welfare agency may not involve an 

effort to amend or otherwise challenge existing law because such a qualification 

constitutes impermissible viewpoint discrimination under the First Amendment. At the 

same time, the Supreme Court also upheld the lower court’s decision that the general 

restriction on litigation, lobbying, and rulemaking involving an effort to reform a Federal 

or State welfare system, since these restrictions prohibit recipient involvement in such 

activities regardless of “the side of the issue” the recipient advocates. 

 The effect of the Velazquez decision is to render the stricken language null and 

void. This means that the limitation on representation of an individual eligible client 

seeking specific relief from a welfare agency which prohibits any such representation 

from involving an effort to amend or otherwise challenge existing law is not valid and 

may not be enforced or given effect. Thus, notwithstanding that the language of 1639 

has yet to be changed, as of the date of the decision, an individual eligible client 

seeking relief from a welfare agency may be represented by a recipient without regard 

to whether the relief involves an effort to amend or otherwise challenge existing welfare 

reform law. 

Although the decision has the effect of rendering that portion of Part 1639 which 

reflects the stricken provision of the statute void and unenforceable with no further 

action on the part of LSC, it is appropriate to conform the text of the regulation to the 

applicable law. 

 In light of above, a Notice and Comment Rulemaking was instituted and a Notice 

of Proposed Rulemaking was published on November 26, 2001. 

Due to the ongoing rulemaking, no additional action by the Board is 

necessary on Part 1639 at this time.

45 CFR Part 1640 – Application of Federal Law to LSC Recipients 

 Part 1640 implements a provision from the FY 1996 appropriation law that 

subjects LSC recipients to “all provisions of Federal law relating to the proper use of 

Federal funds.” Specifically, Part 1640 provides that as a condition of receipt of LSC 

funds, recipients will be subject to Federal civil and criminal statutes relating to fraud, 

false claims and bribery. A list of some of these laws, specifically those relating to 
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22

fraud, waste and abuse, is set forth in the regulation. Other laws relating to the use of 

funds are not specifically enumerated. Adopted in 1997, the rule has not been 

amended since. 

 Consideration was given to the idea of expanding the list of statutes expressly 

mentioned in the rule to include other Federal laws dealing with the use of Federal 

funds, although no such step appears necessary at this time. 

The Task Force is of the opinion that although the desirability of 

expressly including in the rule additional Federal laws relating to the use of 

Federal funds should be revisited in the future, no action is necessary on Part 

1640 at this time.

45 CFR Part 1641 – Debarment, Suspension and Removal of Recipient 

Auditors 

 Part 1641 sets out the authority of the LSC Office of Inspector General to debar, 

suspend or remove independent public accountants from performing audit services for 

recipients upon a showing of good cause. The regulations also describes the rights of 

IPAs and the standards and procedures applicable to debarments, suspensions and 

removals, respectively. Part 1641 implements a provision in the FY 1996 appropriations 

act intended to ensure the reliability of recipient audits. Promulgated in 1999, the rule 

has not since been amended. 

The Task Force is of the opinion that no action is necessary on Part 

1641 at this time.

45 CFR Part 1642 – Attorneys’ Fees 

Part 1642 prohibits recipients from claiming, collecting or retaining attorneys’ 

fees. Compensation to an attorney pursuant to court appointments, payments by a 

governmental agency or other third party to a recipient to represent clients, sanction 

imposed by court rules and practices or authorized by statute and reimbursement of 

costs and expenses from an opposing party or from a client are not considered 

attorneys’ fees under the rule. 

Prior to the promulgation of 1642 in 1997, the issue of attorneys’ fees was 

covered by the Corporation’s regulations at Part 1609, Fee-generating cases. Under the 

original part 1609 regulations, recipients were prohibited from undertaking a feegenerating cases unless other adequate representation was unavailable, but were 

permitted to claim and collect attorneys’ fees if the case was a case that the recipient 

was permitted to take under the fee-generating case standards. The rule further 

provided that any fees collected could not be used for any purposes prohibited by the 
Legal Services Corporation 

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LSC Act. In a 1984 revision, LSC adopted some more specific standards relating to the 

acceptance of and accounting for attorneys’ fees. Under that new rule, fees were 

required to be accounted for by crediting them to the fund from which the resources to 

litigate the case came. This accounting change was intended to increase accountability 

over such funds. The rule also imposed standards for the sharing of fees when LSC 

funded attorneys acted as co-counsel with private attorneys and required that the fee 

be recorded during the accounting period in which the program received the award. 

These changes reflected a concern on the part of LSC that greater accountability over 

such funds was necessary. 

In 1988, LSC published a proposed rule that would have required any attorneys’ 

fees collected to be credited against the grant funds to be paid to the grantee in the 

following quarter. LSC justified this proposed change by noting that because any fees 

obtained would “constitute incidental benefits of the litigation,” they should be treated 

as a “windfall” to the recipient, creditable against the recipient’s grant. This proposed 

change was never adopted, however, due to Congressional opposition and the 

proposed rule was formally withdrawn in 1993. 

Included in the FY 1996 statutory revisions was a ban on claiming or collecting 

attorneys’ fees. The reasoning behind this limitation was “fairness” to private 

defendants, who, it was said, were already subsidizing LSC attorneys through the 

payment of federal taxes and should not, therefore, be required to pay again through 

the action of an attorneys’ fees award. In implementing this prohibition, LSC decided 

that the attorneys’ fees and fee-generating cases issues, although related, were 

sufficiently separate to warrant separate rules The changes Although acknowledging 

that the issues are related, LSC considered the matters. Accordingly, LSC amended 

Part 1609 to remove all provisions relating to attorneys’ fees and adopted a separate 

rule, Part 1642, dealing with attorneys’ fees. 

There are issues, such as private co-counsel’s applications for fees, which 

warrant review. 

The Task Force considers Part 1642 a lower priority item. 

45 CFR Part 1643 – Restriction on Assisted Suicide, Euthanasia and Mercy 

Killing 

 Part 1643 provides that no recipient may use any LSC funds for activities in 

support of assisted suicide, euthanasia or mercy killing. Adopted in 1997, Part 1643 

implements several provisions in the Assisted Suicide Funding Restriction Act of 1997 

(P.L. 105-12). The purpose of the Act and the implementing LSC regulations is to 

ensure that Federal funds not be used to support, assist in, or advocate for assisted 
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suicide, euthanasia or mercy killing. The rule has not been amended since it was first 

promulgated. 

The Task Force is of the opinion that no action is necessary on Part 

1643 at this time.

45 CFR Part 1644 – Disclosure of Case Information 

 Part 1644 requires recipients to disclose certain information to LSC and the public 

regarding the cases their attorneys file in court. Specifically, Part 1644 requires the 

disclosure of the name and address of each party to a case, the cause of action, the 

name and address of the court in which the action has been filed and the case number 

assigned by the court. The name and address of the parties may be withheld from 

disclosure if the information is protected by a court rule or order of if the attorney 

believes that disclosure would create the risk of physical harm to the party(ies). Part 

1644 was promulgated in 1998 to implement a provision in LSC’s FY 1998 

appropriations legislation (P.L. 105-119). The rule has not been amended since that 

time. 

The Task Force is of the opinion that no action is necessary on Part 

1644 at this time.
Federal Register / Vol. 65, No. 189 / Thursday, September 28, 2000 / Notices 58295

1Although this Draft Protocol reflects LSC policy,

it is not intended to and shall not create or confer

any rights for or on behalf of any person or party

and shall not establish legally enforceable rights

against LSC or establish any legally enforceable

obligations on the part of LSC, its directors, officers,

employees and other agents.

2Rulemaking includes both the development of

new rules and regulations and the amendment of

existing rules and regulations.

3The Office of Legal Affairs is the office

previously known as the Office of General Counsel

and serves as legal advisor and corporate secretary

to LSC.

4There may be instances in which use of

Negotiated Rulemaking is unnecessary or

inappropriate, such as for non-controversial issues

or issues relating solely to LSC’s internal

operations. In such cases, LSC may determine that

Continued

LEGAL SERVICES CORPORATION

Rulemaking Protocol

AGENCY: Legal Services Corporation.

ACTION: Announcement of adoption of

rulemaking protocol and establishment

of new rulemakings notification mailing

list.

SUMMARY: This notice sets forth the text

of a new rulemaking protocol adopted

by the LSC Board of Directors which

will govern LSC rulemaking activities

and announces the establishment of a

mailing list for persons and

organizations wishing to be notified of

future LSC rulemakings.

DATES: This Rulemaking Protocol

became effective upon its adoption at

the LSC Board of Directors Meeting on

September 18, 2000.

FOR FURTHER INFORMATION CONTACT:

Mattie C. Condray, Senior Assistant

General Counsel, Office of Legal Affairs,

Legal Services Corporation, 750 First

Street, NE, Washington, DC 20002–

4250; 202/336–8817 (phone); 202/336–

8952 (fax); mcondray@lsc.gov.

SUPPLEMENTARY INFORMATION:

Background

The Legal Services Corporation is

authorized by Congress to issue

regulations as necessary to carry out its

mission. See 42 U.S.C. 2996(e). LSC,

however, is not a ‘‘department, agency,

or instrumentality of the Federal

Government.’’ 42 U.S.C. 2996(d). As

such, LSC is not subject to the

requirements of the Administrative

Procedures Act, which governs the

rulemaking activities of Federal

agencies. Rather, LSC is required to

‘‘afford notice and reasonable

opportunity for comment to interested

parties prior to issuing rules,

regulations, and guidelines, and it shall

publish in the Federal Register at least

30 days prior to their effective date all

its rules, regulations, guidelines and

instructions.’’ 42 U.S.C. 2999(g).

Throughout its history, LSC has

conducted its rulemaking in compliance

with the statutory requirements

described above, but has not had a

written statement of the Board of

Directors (‘‘Board’’) setting forth the

procedures to be followed in the course

of LSC rulemaking activities. The Board

determined that, while there is no legal

requirement for LSC to have a written

protocol related to rulemaking, having

one would serve to advance LSC’s

policy of conducting its rulemaking

activities in a spirit of cooperative

dialog with our recipients and other

interested parties. Accordingly, on

September 18, 2000, at a meeting of its

Board of Directors, the Legal Services

Corporation adopted a new Rulemaking

Protocol to govern its rulemaking

activities. The text of the Protocol is set

forth below.

It should be noted that, since this

Protocol is a statement of LSC internal

procedure and is not a ‘‘rule, regulation,

guideline or instruction,’’ LSC is not

required by law to publish this Protocol

or seek public comment. LSC is

choosing to publish this Protocol in the

Federal Register (and has also posted it

on the LSC website at

http:\\www.lsc.gov) in furtherance of

LSC’s interest in and policy of

conducting its business in a fair and

open manner.

Rulemaking Protocol

This Rulemaking Protocol is intended

to reflect the policy of LSC to conduct

its rulemaking activities in a spirit of

cooperative dialog with our recipients

and other interested parties 1 and has

the following six objectives:

1. Enhanced implementation of the

will of Congress as expressed in the LSC

Act, amendments thereto and other

statutory enactments;

2. Increased public participation in

the manner and method in which LSC

promulgates rules;

3. The adoption of procedures that

reflect the best practices in rulemaking

as articulated in the Administrative

Procedures Act, the Negotiated

Rulemaking Act of 1990 and Executive

Order 12866;

4. Implementation of LSC’s strategic

initiatives as set forth in Strategic

Directions, 2000–2005 (adopted January

29, 2000);

5. Formalization of LSC’s policies

governing rulemaking and specifically

reserving specific responsibilities and

authorities unto the Board; and

6. Development of a rulemaking

protocol that is efficient and effective.

Regulatory Policy Direction

The Board, through the Operations

and Regulations Committee

(‘‘Committee’’), provides direction on

LSC regulatory policy and establishes

priorities for LSC rulemaking activities.

The Committee will look to staff to

effectuate LSC rulemaking policies and

priorities through this Protocol. Final

authority over LSC rulemaking policies

and actions rests with the Board.

Initiation of Rulemaking

The impetus for a rulemaking 2 may

come from any one of several sources;

Congressional directive; internal LSC

initiative (Board or Committee members

and/or staff); or a formal request from a

member of the regulated community or

general public. Once the Board has

agreed on a potential subject for

rulemaking, LSC’s Office of Legal

Affairs 3 (‘‘OLA’’), in close consultation

with appropriate Corporation staff, will

develop a Rulemaking Options Paper

(‘‘ROP’’). The ROP will contain a

discussion of the subject for the

potential rulemaking, and will include

an outline of the policy and legal issues

involved. The ROP shall also

recommend whether the potential

rulemaking should be Negotiated or

accomplished by Notice and Comment

Rulemaking. The appropriate

rulemaking process shall be selected on

a case-by-case with full recognition,

however, of LSC’s policy favoring open

and collaborative rulemaking. It is

anticipated that most rulemaking will be

Negotiated. 4 Once the ROP is

58296 Federal Register / Vol. 65, No. 189 / Thursday, September 28, 2000 / Notices

such issues should be handled solely through

Notice and Comment Rulemaking.

5The facilitator could be a professional facilitator

hired by the LSC or could be an LSC employee who

has received training in Alternative Dispute

Resolution and facilitation methods (including

training in areas such as recognizing leadership

styles, methods for team-building, creating

consensus and defusing conflict). In either case, the

facilitator will be specifically assigned to act in a

neutral capacity and not as an advocate of LSC

policy or substantive expert in the matter at hand.

6Prior to the development of the NPRM, LSC may

do some information gathering (either through

seeking written comments or through formal or

informal in-person outreach other otherwise) as

necessary.

7 During the comment period, LSC may, in its

discretion, hold a public hearing at which

interested parties make oral presentations, followed

by written comments.

developed, it will be submitted to the

Committee. The Committee, acting

through its Chair, shall consult with the

President before deciding whether to

proceed as recommended.

If, after consultation with the

President, the Committee elects to

proceed with a rulemaking, the

President will officially so notify the

Board. The President will also inform

the Inspector General (‘‘IG’’) that the

rulemaking is being undertaken and

communicate to the IG the general

parameters of the proposed rule and the

ROP. Notice that a rulemaking

proceeding has begun will also be

posted on the LSC website, indicating

the subject matter of the rulemaking and

whether the rulemaking will be

Negotiated or accomplished through

Notice and Comment. In addition to

website notice, notice by mail will also

be given those who have previously

requested such notice and are included

in the Corporation’s mailing list

dedicated to that purpose.

Negotiated Rulemaking

In a Negotiated Rulemaking, a group

comprised of LSC representatives and

affected and/or interested parties will

meet under the direction of a trained

facilitator, (‘‘Working Group’’) 5 with the

intention of developing consensusbased positions leading to regulations.

The key feature of Negotiated

Rulemaking is its collaborative

approach, which seeks consensus where

possible and decisionmaking by LSC

after full dialog with the regulated

community and other interested parties.

The President, in consultation with

the Committee Chair, will solicit

suggestions for appointment to the

Working Group from the regulated

community, its clients, advocates, the

organized bar and other interested

parties. The President, working in

consultation with the Committee, acting

through its Chair, will make

appointments of individuals and

organizations to the Working Group,

including the facilitator and the OLA

representative. All groups or

organizations asked to participate in the

Working Group shall be responsible for

selecting and designating their

representatives. It is expected that

membership on the Working Group will

be diverse and fully representative of

the legal services community and other

interested parties.

The Working Group shall meet as

necessary to develop a draft Notice of

Proposed Rulemaking (‘‘NPRM’’). The

members of the Working Group will,

drawing upon their substantive

expertise, discuss the subjects

prompting the need for rulemaking and

work toward developing a consensus on

solutions to the problems identified.

The OLA representative on the

Working Group, with the assistance of a

subgroup of the membership, shall draft

the regulatory language consistent with

achieved consensus. The Working

Group will review the regulation to

ensure it reflects any consensus

reached, although the Corporation

retains ultimate responsibility for

crafting the regulatory language.

The consensus proposal of the group,

once developed, must go through the

formal rulemaking process as an NPRM.

At this point the Notice and Comment

process described below will be

followed.

On occasion it may happen that no

consensus can be reached by the

Working Group on a regulatory proposal

or some element thereof. In those

instances, the President will report this

to the Committee and seek direction

from the Committee, acting through its

Chair, on whether to continue the

rulemaking using the Notice and

Comment process or to terminate the

rulemaking.

Notice and Comment Rulemaking

In Notice and Comment Rulemaking,

LSC develops rulemaking proposals and

takes comment on them in writing and

at certain publicly designated meetings

of the Committee. Employing this

process in conjunction with Negotiated

Rulemaking will ensure that LSC’s

policy of cooperative dialog will be

carried out in a fair, open and

productive manner. LSC believes the

Notice and Comment process will allow

for an effective dialog between LSC and

its recipients and other interested

parties, even in those instances in

which Negotiated Rulemaking is not

used.

OLA will have the primary

responsibility for the drafting of the

Draft NPRM, which includes both the

proposed regulatory text and the

proposed preamble, working with

management, appropriate staff and the

Office of Inspector General (‘‘OIG’’).6

The Draft NPRM will be shared with the

OIG for review and comment. The Draft

NPRM will be submitted to the

President with a Statement of Issues.

The President may then: approve the

Draft NPRM for submission to the

Committee for its consideration; return

the Draft NPRM to OLA for revisions as

necessary; or, jointly with the

Committee, terminate the rulemaking.

Once approved, the Draft NPRM will

be set for consideration by the

Committee at a public meeting. The

Draft NPRM and Statement of Issues

will be provided to the Committee

sufficiently in advance of the meeting to

permit their appropriate consideration.

The notice of the meeting announcing

the placement of the Draft NPRM on the

Committee agenda will be published in

the Federal Register and will recite that

the Draft NPRM will be publicly

available and will be posted on the LSC

website. Posting of the Draft NPRM to

the LSC website will be sufficiently in

advance of the Committee meeting to

permit appropriate consideration by

interested parties.

At the Committee meeting,

management will present the Draft

NPRM with the assistance of OLA and

opportunity for public comment will be

provided. The Committee will then

deliberate and shall decide whether to

publish the NPRM or return it to staff

for revisions.

Once the NPRM has been approved,

OLA will make any necessary technical

revisions to document before it is

published in the Federal Register for

comment.7 The comment period will be

at least 30 days and, it is anticipated, in

most instances will be 60 days (but

could, under appropriate circumstances,

be longer). However, the decision as to

whether to limit the notice period to 30

days or to provide a longer comment

period is a matter entirely within

discretion of the Board.

Copies of all comments received will

be provided to the Committee and made

available to other Board Members upon

request. Copies of all comments will

also be placed in a public docket

available for inspection and copying in

the FOIA Reading Room at the

Corporation’s offices. Copies of

comments received in electronic format,

along with an index of all comments

received, will be placed into an

‘‘electronic’’ docket on the LSC website.

Upon the close of the comment

period, OLA will draft a Final Rule

Federal Register / Vol. 65, No. 189 / Thursday, September 28, 2000 / Notices 58297

8On rare occasions, it may become necessary for

LSC to raise additional issues for comment. In such

a case, LSC may issue a Revised NPRM and repeat

the comment process.

(which consists of the regulatory text

and preamble).8 The draft of the Final

Rule will be shared with the OIG for

review and comment. The draft of the

Final Rule will be submitted to the

President with a Statement of Issues.

The President may then: approve the

draft of the Final Rule for submission to

the Committee for its consideration;

return it to OLA for revisions as

necessary; or, jointly with the

Committee, terminate the rulemaking.

Once approved, the draft of the Final

Rule will be set for consideration by the

Committee at a public meeting. The

draft of the Final Rule and Statement of

Issues will be provided to the

Committee and the Board sufficiently in

advance of the meeting to permit

appropriate consideration. In addition, a

notice of the meeting announcing the

placement of the Final Rule on the

Committee agenda will be published in

the Federal Register. At the Committee

meeting, management will present a

summary of the Comments and the draft

Final Rule with the assistance of OLA.

It is anticipated that the Committee will

accept public comment as needed to

assist in its deliberations. The

Committee will vote on whether to

recommend the Final Rule to the Board

or return it to staff for revisions.

If the draft Final Rule is approved by

the Committee for review by the Board,

the Board will consider the draft Final

Rule and vote to adopt it or to return it

to the Committee for further action. At

its discretion, the Board may request the

participation of members of the public

during its deliberations. Once the Final

Rule is adopted by the Board, OLA will

make any necessary technical revisions

to it and submit the final version for

approval for publication to the Board’s

designee (for example, the Board Chair

or the Committee Chair). The Final Rule

will then be published in the Federal

Register and placed on LSC’s website.

Establishment of Mailing List

As noted above, public notice that a

rulemaking proceeding has begun will

be accomplished through posting a

notice to that effect on the LSC website,

and by sending notice by mail to those

who have previously requested such

notice. With this notice, LSC is formally

establishing a mailing list dedicated to

that purpose. Persons and organizations

wishing to be notified by mail when

LSC undertakes a rulemaking

proceeding should submit a notice

indicating such interest and providing

contact information (name, title,

organization and mailing address) to

Mattie C. Condray at the address listed

above.

Victor M. Fortuno,

General Counsel and Vice President for Legal

Affairs.

[FR Doc. 00–24836 Filed 9–27–00; 8:45 am]

BILLING CODE 7050–01–P

REGULATIONS REVIEW TASK FORCE FINAL REPORT -- ATTACHMEN

SUMMARY – BY CATEGORY

Parts Considered Appropriate to be Deleted 

Parts Considered Appropriate for Action – Higher Priority 

Parts Considered Appropriate for Action – Lower Priority 

Parts for Wis Deemed N

Part 1631 – Expenditure of Grant Funds 

Part 1602 - FOIA Part 1600 - Definitions Part 1601 – Res

 Part 1604 – Outside 

Practice of Law 

Part 1608 – Prohibited Political Activities 

Part 1603 – StaCouncils 

 Part 1606 – 

Termination and Debarment Procedures 

Part 1613 – Restrictions on Legal Assistance – Criminal Proceedings 

Part 1605 – AppClients 

 Part 1607 – Governing 

Bodies 

Part 1614 – Private Attorney Involvement 

Part 1609 – Fee

 Part 1618 – 

Enforcement Procedures 

Part 1615- Restrictions on Actions Collaterally Attacking Criminal Convictions 

Part 1610 – Use Funds; TransfeProgram Integr

 Part 1621 – Client 

Grievance Procedures 

Part 1616 – Attorney Hiring Part 1611 - Elig

 Part 1623 – 

Suspension Procedures 

Part 1622 – Public Access to Meetings; Gov’t in the Sunshine Act 

Part 1612 – ResLobbying 

 Part 1624 – 

Prohibition on Discrimination on the Basis of Handicap 

Part 1627 – Subgrants and Membership Fees or Dues 

Part 1617 – Cla

 Part 1642 – Attorneys’ Fees Part 1619 –Disc

Information 

1 Rulemaking on Part 1611 is currently underway. 
REGULATIONS REVIEW TASK FORCE FINAL REPORT -- ATTACHMEN

SUMMARY – BY CATEGORY

Parts Considered Appropriate to be Deleted 

Parts Considered Appropriate for Action – Higher Priority 

Parts Considered Appropriate for Action – Lower Priority 

Parts for Wis Deemed N

 Part 1620 – Prio

Resources 

 Part 1625 - Res Part 1626 – Res

Assistance to A

 Part 1628 – Rec

Balances 

 Part 1629 – Bon Part 1630 – Cos

Procedures 

 Part 1632 - Red Part 1633 – Res

Representation Proceedings 

 Part 1634 – Com

for Grants and *pending outcome 

 Part 1635 - Tim Part 1636 – Clie

Statement of Fa

 Part 1637 – Rep

Prisoners 

 Part 1638 – Res

Solicitation 

 Part 1639 – We2 Rulemaking on Part 1626 is currently underway. 
REGULATIONS REVIEW TASK FORCE FINAL REPORT -- ATTACHMEN

SUMMARY – BY CATEGORY

Parts Considered Appropriate to be Deleted 

Parts Considered Appropriate for Action – Higher Priority 

Parts Considered Appropriate for Action – Lower Priority 

Parts for Wis Deemed N

 Part 1640 – App

law to LSC Reci

 Part 1641 – De

Suspension and Recipient Audito

 Part 1643 – Res

Assisted SuicideMercy Killing 

 Part 1644 – Dis

Information 

3 Rulemaking on Part 1639 is currently underway. 
REGULATIONS REVIEW TASK FORCE FINAL REPORT -- ATTACHMEN

SUMMARY – BY REGULATION

45 CFR Part Number 

Subject Task Force Analysis 

1600 Definitions Appropriate for Action – Lower Priority 1601 Reserved No Action Necessary 1602 FOIA Appropriate for Action – Higher Priority 1603 State Advisory 

Councils 

No Action Necessary 

1604 Outside Practice of 

Law 

Appropriate for Action – Higher Priority 

1605 Appeals on Behalf of 

Clients 

No Action Necessary 

1606 Terminations and 

Debarment Procedures 

Appropriate for Action – Higher Priority 

1607 Governing Bodies Appropriate for Action – Higher Priority 1608 Prohibited Political 

Activities 

Appropriate for Action – Lower Priority 

1609 Fee-generating Cases No Action Necessary 1610 Use of non-LSC 

Funds; Transfers of LSC Funds; Program Integrity 

No Action Necessary 

1611 Eligibility No Action Necessary - Negotiated Rulemaking Action in Progr1612 Restrictions on 

Lobbying 

No Action Necessary 

1613 Restrictions on Legal 

Assistance – Criminal Proceedings 

Appropriate for Action – Lower Priority 
REGULATIONS REVIEW TASK FORCE FINAL REPORT -- ATTACHMEN

SUMMARY – BY REGULATION

45 CFR Part Number 

Subject Task Force Analysis 

1614 Private Attorney 

Involvement 

Appropriate for Action – Lower Priority 

1615 Restrictions on 

Actions Collaterally Attacking Criminal Convictions 

Appropriate for Action – Lower Priority 

1616 Attorney Hiring Appropriate for Action – Lower Priority 1617 Class Actions No Action Necessary 1618 Enforcement 

Procedures 

Appropriate for Action – Higher Priority 

1619 Disclosure of 

Information 

No Action Necessary 

1620 Priorities in Use of 

Resources 

No Action Necessary 

1621 Client Grievance 

Procedures 

Appropriate for Action – Higher Priority 

1622 Public Access to 

Meetings – Gov’t in the Sunshine Act 

Appropriate for Action – Lower Priority 

1623 Suspension 

Procedures 

Apprpriate for Action – Higher Priority 

1624 Prohibition of 

Discrimination on the Basis of Handicap 

Appropriate for Action – Higher Priority 

1625 Reserved No Action Necessary 1626 Restrictions on Legal 

Assistance to Aliens 

No Action Necessary - Negotiated Rulemaking Action in Progr
REGULATIONS REVIEW TASK FORCE FINAL REPORT -- ATTACHMEN

SUMMARY – BY REGULATION

45 CFR Part Number 

Subject Task Force Analysis 

1627 Subgrants and 

Membership Fees or Dues 

Appropriate for Action – Lower Priority 

1628 Recipient Fund 

Balances 

No Action Necessary 

1629 Bonding of Recipients No Action Necessary 1630 Cost Standards and 

Procedures 

No Action Necessary 

1631 Expenditure of Grant 

Funds 

Appropriate for Deletion 

1632 Redistricting No Action Necessary 1633 Restriction on 

Representation in Certain Eviction Proceedings 

No Action Necessary 

1634 Competitive Bidding 

for Grants and Contracts 

No Action Necessary (pending outcome of review) 

1635 Timekeeping 

Requirements 

No Action Necessary 

1636 Client Identity and 

Statement of Facts 

No Action Necessary 

1637 Representation of 

Prisoners 

No Action Necessary 

1638 Restriction on 

Solicitation 

No Action Necessary 

1639 Welfare Reform No Action Necessary – Rulemaking in Progress 
REGULATIONS REVIEW TASK FORCE FINAL REPORT -- ATTACHMEN

SUMMARY – BY REGULATION

45 CFR Part Number 

Subject Task Force Analysis 

1640 Application of Federal 

Law to LSC Recipients 

No Action Necessary 

1641 Debarment, 

Suspension and Removal of Auditors 

No Action Necessary 

1642 Attorney’s Fees Appropriate for Action – Lower Priority 1643 Restriction on Assisted 

Suicide, Euthanasia and Mercy Killing 

No Action Necessary 

1644 Disclosure of Case 

Information 

No Action Necessary 
REGULATIONS REVIEW TASK FORCE FINAL REPORT -- ATTACHMEN

ACTION PRIORITIZATION LIST - TASK FORCE RECOMMENDATION

Task Force Recommendations for Action - Prioritized 

Notes 

1. 1606 – Termination and Debarment Procedures; Reprocurement, 1618 – Enforcement Procedures, and 1623 – Suspension Procedures 

The Task Force is of the opinion that reform of thetermination, suspension, and enforcement and, in particauthority for the impositions of sanctions short of tefunding, is the most pressing need of the Corporation. Tthe field is not supportive of this recommendation, bu

action in this area is important enough that the recomme

appropriate nonetheless. 

2. 1621 - Client Grievance Procedures 3. 1602 - FOIA 

The Task Force has placed these items next on the pr

Force believes that they may each be dealt with relativfor negotiated rulemaking. This would allow for aundertaken concurrently with the current negotiated rfuture negotiated rulemaking on lesser sanctions. 

4. 1624 - Prohibition of Discrimination on the Basis of Handicap 

The Task Force has listed this near the bottom of the h

an item that the Task Force thinks merits considera

current rulemaking activities and our suggestions above

immediately. 

5. 1607 – Governing Bodies The Task Force retains this item on the high priority lis

above, but does not consider it to be the most pressinitems. 

6. 1604 – Outside Practice of Law The Task Force has listed this last on the high priority 

believes that while aspects of this regulation may be aare likely also to be more difficult issues; the Task For“spread out” the simpler and more complex projects on t