Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 /Rules and Regulations 33251

1The section numbers for §§ 1644.3 and 1644.4

have been reversed from the proposed rule.

compounds (VOCs), other organic

compounds, methane, and hazardous air

pollutants.

EPA approved this direct final

rulemaking without prior proposal

because the Agency viewed it as a

noncontroversial amendment and

anticipated no adverse comments. The

final rule was published in the Federal

Register with a provision for a 30 day

comment period (63 FR 17683). At the

same time, EPA announced that this

final rule would convert to a proposed

rule in the event that adverse comments

were submitted to EPA within 30 days

of publication of the rule in the Federal

Register (63 FR 17683, April 10, 1998).

The final rulemaking action would be

withdrawn by publishing a document

announcing withdrawal of this action.

Adverse comments were submitted to

EPA within the prescribed comment

period. Therefore, EPA is amending 40

CFR part 62, subpart NN, by removing

the April 10, 1998 final rulemaking

action. All public comments received

will be addressed in a subsequent

rulemaking action based on the

proposed rule.

EFFECTIVE DATE: June 18, 1998.

FOR FURTHER INFORMATION CONTACT:

James B. Topsale at (215) 566–2190 or

by e-mail at topsale.james@epamail.gov.

List of Subjects in 40 CFR Part 62

Environmental protection,

Administrative practice and procedure,

Air pollution control, Intergovernmental

relations, Non-methane organic

compounds, Methane, Municipal solid

waste landfills, Reporting and

recordkeeping requirements.

Dated: June 9, 1998.

W. Michael McCabe,

Regional Administrator, Region III.

40 CFR Part 62 is amended as follows:

PART 62—[AMENDED]

Subpart NN—Pennsylvania

1. The authority citation for Part 62

continues to read as follows:

Authority: 42 U.S.C. 7401–7671q.

§§ 62.9630—62.9632 [Removed]

2. The undesignated centerheading

and §§ 62.9630 through 62.9632 are

removed.

[FR Doc. 98–16254 Filed 6–17–98; 8:45 am]

BILLING CODE 6560–50–P

LEGAL SERVICES CORPORATION

45 CFR Part 1644

Disclosure of Case Information

AGENCY: Legal Services Corporation.

ACTION: Final rule.

SUMMARY: This final rule implements a

provision in the Legal Services

Corporation’s (LSC or Corporation) FY

1998 appropriations act which requires

basic field recipients to disclose certain

information to the public and to the

Corporation regarding cases their

attorneys file in court. The case

information that is provided to the

Corporation will be subject to disclosure

under the Freedom of Information Act.

DATES: This rule is effective July 20,

1998.

FOR FURTHER INFORMATION CONTACT:

Suzanne Glasow, Office of the General

Counsel, 202–336–8817.

SUPPLEMENTARY INFORMATION: This final

rule is intended to implement Section

505 of the Corporation’s FY 1998

appropriations act, which requires basic

field recipients to disclose certain

information to the public and to the

Corporation regarding cases filed in

court by attorneys employed by

recipients. See Public Law 105–119, 111

Stat. 2440. The Corporation issued a

program letter on December 9, 1997,

providing recipients with guidance on

compliance with Section 505 until such

time as a rule could be promulgated by

the Corporation. On February 6, 1998,

the Corporation’s Operations and

Regulations Committee (Committee) of

the Corporation’s Board of Directors

(Board) met to consider a draft proposed

rule to implement the case disclosure

requirement. After deliberation, the

Committee adopted a proposed rule that

was published in the Federal Register

for public comment. See 63 FR 8387

(Feb. 19, 1998).

The Corporation received 4 comments

on the proposed rule. The comments

agreed that, for the most part, the

proposed rule accurately reflected

legislative intent. For those provisions

of the rule that the commenters believed

went beyond the intent of Section 505,

suggestions were made for changes.

Several comments also asked for

clarification on certain issues either in

the commentary or the text of the final

rule. The Committee met on April 5,

1998, to consider public comment. After

making revisions to the proposed rule,

the Committee recommended the rule as

revised to the Board as a final rule. The

Board adopted the rule as recommended

by the Committee on April 6, 1998, for

publication as a final rule in the Federal

Register.

A section-by-section analysis and

discussion of changes made from the

proposed rule is provided below.

Section-by-Section Analysis

Section 1644.1 Purpose

The purpose section states that the

rule is intended to ensure that recipients

disclose certain required information to

the public and to the Corporation on

cases filed in court by their attorneys.

Section 1644.2 Definitions

The case disclosure provision requires

that recipients disclose certain

information, among which is the cause

of action, for each case filed in court by

their attorneys. To clarify this

requirement, this final rule includes

three definitions. Paragraph (a) of

§ 1644.2 defines to disclose the cause of

action. The term means to provide a

sufficient description of a particular

case to indicate the principal nature of

the case. Examples would include:

breach of warranty, bankruptcy, divorce,

domestic violence, petition to quiet title,

action to recover property, and

employment discrimination action.

Paragraph (b) clarifies the type of

recipient subject to the case disclosure

requirement. Recipient is defined as an

entity that receives funds under Sec.

1006(a)(1)(A) of the LSC Act, 42 U.S.C.

2996e(a)(1)(A), that is, a basic field

recipient which provides direct legal

assistance to the poor. Although Section

505 does not specifically apply to

subrecipients, as a matter of policy, the

proposed rule extended the case

disclosure requirement to subrecipients

which provide direct legal

representation to eligible clients.

The comments generally disagreed

with this policy and urged the

Corporation to exclude subrecipients

from the reach of the requirement or, at

least, limit the application of the

requirement to activities under an LSC

subgrant. In addition, comments

pointed out that the interplay of the

discussion of this issue in the preamble

and the language in the rule itself

created confusion as to whether the rule

was intended to apply to all cases filed

by subrecipients or only to cases filed

by subrecipients that are funded under

a subgrant.

The Board revised the definition of

recipient and the applicability

provisions in § 1644.3 1 in order to

clarify the intended application of the

case disclosure requirement to

subrecipients. It was the intent of the
33252 Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 /Rules and Regulations

proposed rule to apply the requirement

to cases funded under subgrants

provided for the direct legal assistance

to the poor, except for PAI subgrants.

The language in the text and preamble,

however, did not make this clear. The

revised language better states the intent

and also clarifies that the disclosure

requirement does not apply to a

subrecipient’s non-LSC funded

activities. This means that subrecipients

are required to disclose information

only for cases funded by their LSC

subgrants. The final rule thus ensures

that information will be available to the

public regarding all cases filed by

recipients and any cases filed by

subrecipients that are funded under an

LSC subgrant for the direct

representation of eligible clients, except

for PAI subgrants.

Paragraph (c) defines the term

attorney, for the purposes of this part, to

mean any attorney who is employed by

a recipient. This would include

attorneys employed as regular or

contract employees, regardless of

whether such attorneys are employed

full-time or part-time. One comment

asked for additional language in the

definition that would clarify that

attorney does not include any private

attorney who, under the recipient’s PAI

program, receives compensation from a

recipient under the terms of a contract

or judicare arrangement, or who

undertakes representation of eligible

clients on a pro bono basis. Although

the Board agreed with the substance of

the comment, it did not revise the

definition of attorney. Instead, it added

§ 1644.3(b) to the rule, which provides

that the case disclosure requirement

does not apply to private attorneys who

provide legal assistance as part of a

recipient’s PAI activities.

Section 1644.3 Applicability

This section, which has been

renumbered, clarifies the scope of the

case disclosure requirement. Technical

and clarifying revisions were made to

this section by the Board, and language

was added to clarify the applicability of

this rule to subrecipients, as discussed

under § 1644.2 above. Subparagraph

(a)(1) clarifies that the disclosure

requirement is limited to cases filed on

behalf of plaintiffs and petitioners. This

is consistent with the language of

Section 505, which requires case

information about ‘‘each case filed by its

[a recipient’s] attorneys.’’ This language

clearly applies to ‘‘each case’’ filed, not

to individual filings in a particular case.

Thus, the case disclosure requirement

does not require updates on the status

of cases for which information has

already been filed. In addition, the

language of Section 505 refers to cases

filed by a recipient attorney. The general

understanding of the meaning of filing

a case is that it refers to the initiation

of a case, such as the filing of a

complaint by a plaintiff. Accordingly,

disclosure is not required for

submissions of pleadings such as an

answer or a cross claim on behalf of a

defendant in a case that was not

initiated by a recipient.

Although the case disclosure

requirement normally applies only to

the original filing of a case,

subparagraph (a)(2) applies the

requirement when there is an appeal

filed in court by a recipient, the

recipient’s client is the appellant, and

the recipient was not the attorney of

record in the case below. The Board

revised this provision from the

proposed rule to add the requirement

that the case be one where the

recipient’s client is the appellant. This

is consistent with § 1644.3(a)(1), which

limits the case disclosure requirement to

cases filed on behalf of plaintiffs or

petitioners.

Subparagraph (a)(3) applies the

requirement to a request for judicial

review of an administrative action filed

in a court of competent jurisdiction. The

language of this provision was revised

to state more accurately the situation

covered by the provision.

Finally, paragraph (b) provides that

this rule does not apply to cases filed by

private attorneys as part of a recipient’s

private attorney involvement activities

pursuant to part 1614. PAI attorneys are

not attorneys employed by recipients;

rather, they are generally private

attorneys with their own private

practices who have been recruited by

recipients to provide some legal

assistance to eligible clients, either pro

bono or on a compensated basis.

Section 1644.4 Case Disclosure

Requirement

This section sets out the basic

requirements of the case disclosure

provision. Paragraph (a) provides that

the disclosure requirement applies to

each case filed in court by a recipient’s

attorneys. The preamble to the proposed

rule explained that the disclosure

requirement does not apply to cases

filed by part-time attorneys outside of

their employment with the recipient.

One comment asked that this

clarification be made explicit in the

rule. The Board agreed and added

language to § 1644.4(a) of the final rule

that provides that the rule applies only

to cases filed by recipient attorneys ‘‘on

behalf of a client of the recipient.’’ A

similar revision was also made for

§ 1644.3(a)(1).

Name and address of parties:

Subparagraphs 1644.4(a)(1) through

(a)(4) list the information a recipient

must disclose about applicable cases.

First, the name and full address of each

party to a case must be disclosed unless

one of the two statutory protections

discussed below applies. The term ‘‘full

address’’ means an address sufficient to

contact a party to the case by mail, such

as a street address or post office box

number with the city, State and zip

code. This provision is not intended to

require recipients to provide a name and

address of a party when they have no

knowledge of and cannot reasonably

obtain such information. This could

occur, for example, when the

information is not a matter of public

record, the party is not a client of the

recipient, and the private attorney for

that party refuses to provide the

information. However, the recipient

must make a reasonable effort to obtain

the information.

Pursuant to Section 505, a name or

address need not be disclosed if (1) the

name or address is protected by an order

or rule of court or by State or Federal

law, or (2) the recipient’s attorney

reasonably believes that revealing the

information would put the client of the

recipient at risk of physical harm. These

protections are consistent with the

express legislative intent of the purpose

and scope of the requirement. The

legislative history indicates that

Congress intends that the disclosure

requirement apply to ‘‘the most basic

information’’ about a case which is

already public and on file in court

records, but does not apply to

information, for example, that would

risk harm to a person or that is protected

by the attorney-client privilege. See 143

Cong. Rec. H 8004–8008 (Sept. 26,

1997).

One comment from an LSC recipient

stated that the program receives a grant

through the Victims of Crime Act

(VOCA), which only funds legal

assistance to protect victims of violence.

In the view of the recipient, virtually all

cases handled under the VOCA grant are

likely to come within the physical harm

exemption. Accordingly, the recipient

asked that the rule include a blanket

exemption for cases filed under grants

specifically targeted for domestic

violence victims.

The Board did not adopt the

recommendation. The remedy provided

by statute allows individual attorneys to

decide for particular cases whether the

physical harm exemption applies.

Although many of the clients served

under the VOCA grant may indeed fall

within the physical harm exemption,

the Board was not convinced that
Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 /Rules and Regulations 33253

virtually all such clients do. Nor was the

Board convinced that the burden of

making individual judgments for each

case is a substantial burden on

recipients.

During public consideration of the

rule, a question was raised about the

rule’s policy for protecting relatives of

the client, whose physical safety would

be put at risk by disclosure of the

client’s name and address. For example,

if the children of the client rather than

the client had been threatened with

physical harm, could the rule’s

exemption from disclosing the name

and address be applied to protect the

children? The Board noted that the

statute does not expressly provide

protections for any person other than

the client of the recipient, but also noted

that it is clear from the legislative

history of the requirement that Congress

did not intend for the requirement to

put anyone in harm’s way. The Board

did not revise the rule, but directed staff

to provide guidance for situations where

a family member of a client would be

put at risk of physical harm.

Accordingly, when a recipient’s

attorney determines that a relative of the

client would be put at risk of physical

harm by disclosure of the client’s name

and address, the recipient may withhold

the information, but the attorney should

keep a record of that determination.

This policy is based on the reasonable

presumption that if one family member

is put at risk by revealing the client’s

name and address, then it is likely that

the client and any other family member

who could be found by revealing the

information are also at risk. This is

especially true in cases where the

relative at risk is a child of the client.

For other situations where it may not be

clear whether the risk-of-harm

exception applies, a recipient should

consult the Corporation for guidance.

Cause of action: The case disclosure

requirement also requires disclosure of

the cause of action for any applicable

case. This requirement is intended to

provide the public and the Corporation

with information regarding the nature or

types of cases filed in court by legal

services attorneys, so that there is a

public awareness of how legal services

funds are being expended.

Name and address of court/case

number: Finally, the case disclosure

provision requires disclosure of the

name and full address of the court

where a case is filed and the case

number assigned to the case. Full

address means an address sufficient to

contact the court by U.S. mail.

Paragraph (b) of this section requires

recipients to provide their case

information to the Corporation in

semiannual reports as specified by the

Corporation. The Corporation will

provide guidance to recipients on how

and when to provide the information.

This paragraph also clarifies that reports

submitted to the Corporation are subject

to public disclosure by the Corporation

under the Freedom of Information Act

(FOIA).

The disclosure requirement in this

rule is separate from the FOIA and

nothing in this rule is intended to

suggest that LSC recipients are subject

to the FOIA. They are not. (However,

they are subject to other disclosure

requirements applicable to recipients in

45 CFR part 1619.) The Corporation, on

the other hand, is subject to the FOIA,

and this rule requires the Corporation to

treat the case information submitted to

it by recipients as subject to disclosure

under the FOIA.

Paragraph (c) provides that a recipient

must make the case information

described in paragraph (a) available in

written form to any person who requests

such information. This rule does not

mandate how recipients must maintain

the case information for disclosure to

the public, except that it must be

provided in written form. However

maintained, the case information must

be made available within a reasonable

time after a request is made by any

member of the public. Paragraph (c) also

permits recipients to charge reasonable

mailing and document copying fees.

Comments expressed confusion

regarding exactly what information

recipients are required to disclose and

inquired whether requests would be

limited to certain time frames or

whether recipients must respond to

requests for information in a form

different from that maintained by a

recipient. For example, a recipient may

choose to maintain a list of every case

filed after January 1, 1998, in the order

in which the cases were filed. If a

request asks only for cases dealing with

domestic violence, the recipient is not

required to prepare another list

separating out domestic violence cases.

The recipient is only required to

provide the list it has compiled, and the

requester would have to search the list

to find the domestic violence cases. This

does not mean that a recipient may not

choose to provide the information in

different formats; it is just not required

to do so by this rule.

In regard to time frames, recipients

must disclose the required case

information when requested by a

member of the public for all cases filed

by their attorneys after January 1, 1998,

whenever the request is made. This rule

does not include any cut-off dates or

other specifics on the manner of

reporting or disclosing information in

the rule. If the Corporation determines

that information loses its value after a

period of time, so that it does not need

to be maintained by recipients, it will

provide clear written guidance on the

matter.

Another comment asked that

disclosure be required only for cases

filed after the effective date of this rule

if the client refuses to permit disclosure,

since the client may have had no prior

information about the rule and could

not have consented to disclosure as a

condition of representation.

The Board did not agree. The

Corporation issued a program letter to

all recipients on December 9, 1997,

clearly stating that the law would be in

effect as of January 1, 1998, and that

recipients must start implementation of

the case disclosure requirements set out

in the letter. The letter advised

recipients to inform affected clients,

prior to filing a lawsuit, of the possible

disclosure of the information required

by this law.

Section 1644.4(c) provides that a

recipient must make its case

information available in written form,

upon request from any person. One

comment asked for clarification as to

whether the word person includes

government agencies, departments or

subdivisions, non-profit corporations,

public corporations, foreign

corporations, or a person outside a

program’s service area. The term is

intended to be all inclusive and is not

limited by geography, or by the fact that

the requesting person is asking on

behalf of an organization or government

entity. The legislative history clearly

indicates an intent to make the

information public to any requester.

This is consistent with the

interpretation of the terms person and

public in the FOIA. The Board requested

that this interpretation be included in

this preamble.

Section 1644.5 Recipient Policies and

Procedures

This section requires the recipient to

establish written policies and

procedures to guide the recipient’s staff

to ensure compliance with this rule.

Such procedures could include

information regarding how any person

may be given access to or be provided

with copies of a recipient’s case

disclosure information. The procedures

could also set out the costs for copying

or mailing such information.

List of Subjects in 45 CFR part 1644

Grant programs, Legal services,

Reporting and recordkeeping.
33254 Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 /Rules and Regulations

For reasons set forth in the preamble,

LSC amends Chapter XVI of Title 45 by

adding part 1644 as follows:

PART 1644—DISCLOSURE OF CASE

INFORMATION

Sec.

1644.1 Purpose.

1644.2 Definitions.

1644.3 Applicability.

1644.4 Case disclosure requirement.

1644.5 Recipient policies and procedures.

Authority: Pub. L. 105–119, 111 Stat. 2440,

Sec. 505; Pub. L. 104–134, 110 Stat. 1321; 42

U.S.C. 2996g(a).

§ 1644.1 Purpose.

The purpose of this rule is to ensure

that recipients disclose to the public

and to the Corporation certain

information on cases filed in court by

their attorneys.

§ 1644.2 Definitions.

For the purposes of this part:

(a) To disclose the cause of action

means to provide a sufficient

description of the case to indicate the

type or principal nature of the case.

(b) Recipient means any entity

receiving funds from the Corporation

pursuant to a grant or contract under

section 1006(a)(1)(A) of the Act.

(c) Attorney means any full-time or

part-time attorney employed by the

recipient as a regular or contract

employee.

§ 1644.3 Applicability.

(a) The case disclosure requirements

of this part apply:

(1) To actions filed on behalf of

plaintiffs or petitioners who are clients

of a recipient;

(2) Only to the original filing of a case,

except for appeals filed in appellate

courts by a recipient if the recipient was

not the attorney of record in the case

below and the recipient’s client is the

appellant;

(3) To a request filed on behalf of a

client of the recipient in a court of

competent jurisdiction for judicial

review of an administrative action; and

(4) To cases filed pursuant to

subgrants under 45 CFR part 1627 for

the direct representation of eligible

clients, except for subgrants for private

attorney involvement activities under

part 1614 of this chapter.

(b) This part does not apply to any

cases filed by private attorneys as part

of a recipient’s private attorney

involvement activities pursuant to part

1614 of this chapter.

§ 1644.4 Case disclosure requirement.

(a) For each case filed in court by its

attorneys on behalf of a client of the

recipient after January 1, 1998, a

recipient shall disclose, in accordance

with the requirements of this part, the

following information:

(1) The name and full address of each

party to a case, unless:

(i) the information is protected by an

order or rule of court or by State or

Federal law; or

(ii) the recipient’s attorney reasonably

believes that revealing such information

would put the client of the recipient at

risk of physical harm;

(2) The cause of action;

(3) The name and full address of the

court where the case is filed; and

(4) The case number assigned to the

case by the court.

(b) Recipients shall provide the

information required in paragraph (a) of

this section to the Corporation in

semiannual reports in the manner

specified by the Corporation. Recipients

may file such reports on behalf of their

subrecipients for cases that are filed

under subgrants. Reports filed with the

Corporation will be made available by

the Corporation to the public upon

request pursuant to the Freedom of

Information Act, 5 U.S.C. 552.

(c) Upon request, a recipient shall

make the information required in

paragraph (a) of this section available in

written form to any person. Recipients

may charge a reasonable fee for mailing

and copying documents.

§ 1644.5 Recipient policies and

procedures.

Each recipient shall adopt written

policies and procedures to implement

the requirements of this part.

June 15, 1998.

Victor M. Fortuno,

General Counsel.

[FR Doc. 98–16243 Filed 6–17–98; 8:45 am]

BILLING CODE 7050–01–P

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Parts 387, 390, 391, 392, 395,

396, and 397

[FHWA Docket No. FHWA–97–2328; MC–97–

3]

RIN 2125–AD72

Review of the Federal Motor Carrier

Safety Regulations; Regulatory

Removals and Substantive

Amendments

AGENCY: Federal Highway

Administration (FHWA), DOT.

ACTION: Final rule.

SUMMARY: The FHWA is adopting a final

rule to remove, amend, and redesignate

certain provisions of the Federal Motor

Carrier Safety Regulations concerning

financial responsibility; general

applicability and definitions; accident

recordkeeping requirements;

qualifications of drivers; driving of

commercial motor vehicles; hours of

service of drivers; inspection, repair,

and maintenance; and the transportation

of hazardous materials. The agency

considers many of these regulations to

be obsolete, redundant, unnecessary,

ineffective, or burdensome. Others are

more appropriately regulated by State

and local authorities, better addressed

by company policy, in need of

clarification, or more appropriately

contained in another section. This

action is consistent with the FHWA’s

Zero Base Regulatory Review and the

President’s Regulatory Reinvention

Initiative.

EFFECTIVE DATE: July 20, 1998.

FOR FURTHER INFORMATION CONTACT: Ms.

Deborah M. Freund, Office of Motor

Carrier Research and Standards, (202)

366–4009, or Mr. Charles E. Medalen,

Office of the Chief Counsel, (202) 366–

1354, Federal Highway Administration,

Department of Transportation, 400

Seventh Street, SW., Washington, DC

20590–0001. Office hours are from 7:45

a.m. to 4:15 p.m., e.t., Monday through

Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Background

As part of its Zero Base Regulatory

Review Program, the FHWA published

a notice of proposed rulemaking in the

Federal Register on January 27, 1997

(62 FR 3855) to request comment on an

extensive list of changes proposed

concerning Parts 387, 390, 391, 392,

395, 396, and 397 of the Federal Motor

Carrier Safety Regulations (FMCSRs).

The agency had implemented an earlier

set of changes to the FMCSRs on

November 23, 1994 (59 FR 60319) after

receiving comments to a notice of

proposed rulemaking published on

January 10, 1994 (59 FR 1366). The

agency had also published a final rule

on July 28, 1995 (60 FR 38739) making

technical corrections to keep the

FMCSRs accurate and up to date.

Discussion of Comments

The FHWA extended the comment

period for the NPRM on March 27, 1997

(62 FR 14662). Comments to the docket

were accepted through May 12, 1997.

Comments were received from 55

organizations, companies, and

individuals as follows:

Ten States (State of California

Business, Transportation, and Housing

Agency; Colorado Department of Public