3798 Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Proposed Rules

As stated previously, the May 17,

1994 proposed rule to establish a

tolerance for amitraz in/on imported

hops was not finalized because the

amitraz reregistration activities

indicated the potential for an acute risk

of concern. Using the voluntary human

study submitted by the company, a

revised dietary exposure analysis was

performed assessing the acute risk from

the proposed use of amitraz on dried

hops. Acute exposure from beer was

calculated by multiplying individual,

single day consumption estimates taken

from the USDA’s 1977-1978 Nationwide

Food Consumption Survey by a residue

of 0.22 ppm to derive a distribution of

acute exposures for the two subgroups

previously identified as being most

highly exposed to amitraz through beer,

‘‘Males 13 years and older’’ and

‘‘Females 13 years and older.’’ Because

hops are mixed as part of the brewing

process, a residue value in beer

reflecting the average residue in hops

was deemed more appropriate than

using a residue value in beer based on

the tolerance on hops.

The Margin of Exposure (MOE) is a

measure of how closely exposure comes

to the NOEL (the highest dose at which

no effects were observed in the study),

and is calculated as the ratio of the

NOEL to the exposure (NOEL/exposure

= MOE). The Agency normally

considers an MOE of 10 or greater

acceptable when the NOEL is based on

a human study. MOEs at the 99th

percentile from amitraz in beer were 10

for ‘‘Males, 13 +’’ and 15 for ‘‘Females,

13 +’’. Only those consumers within

both subgroups having consumption

greater than the 99th percentile

consumer would have MOEs for beer

which are below 10. Additionally, the

acute risk assessment assumed that 100

percent of all imported beer and 100

percent of all imported hops used in

domestic beer production would

contain amitraz. The Agency considers

this to be extremely unlikely.

The Agency expects a brewing study

providing additional residue data to be

submitted which may enable further

refinement and reevaluation of the risk.

At this time, no residue data supporting

domestic use have been submitted for

the U.S., and there are no U.S.

registrations for the use of amitraz on

hops. The Agency will not consider any

applications for registration of amitraz

to be used on hops in the U.S., nor will

EPA consider any Special Local Needs

Registrations (FIFRA section 24(c)) until

acceptable U.S. residue data are

submitted and reviewed and a risk/

benefit analysis is performed.

Based on the above information

considered by the Agency, the tolerance

established by amending 40 CFR part

180 would protect the public health.

Therefore, it is proposed that the

tolerance be established as set forth

below.

Any person who has registered or

submitted an application for registration

of a pesticide under FIFRA, as amended,

which contains any of the ingredients

listed herein may request within 30

days after publication of this document

in the Federal Register that this

rulemaking proposal be referred to an

Advisory Committee in accordance with

FFDCA section 408(e).

Interested persons are invited to

submit written comments on the

proposed regulation. Comments must

bear a notation indicating the document

control number, [PP 4E4349/P599]. All

written comments filed in response to

this petition will be available in the

Public Docket and Freedom of

Information Section, at the address

given above from 8 a.m. to 4 p.m.,

Monday through Friday, except legal

holidays.

Pursuant to the requirements of the

Regulatory Flexibility Act (Pub. L. 96-

354, 94 Stat. 1164, 5 U.S.C. 601-612),

the Administrator has determined that

regulations establishing new tolerances

or raising tolerance levels or

establishing exemptions from tolerance

requirements do not have a significant

economic impact on a substantial

number of small entities. A certification

statement to this effect was published in

the Federal Register of May 4, 1981 (46

FR 24950).

List of Subjects in 40 CFR Part 180

Administrative practice and

procedure, Agricultural commodities,

Pesticides and pests, Recording and

recordkeeping requirements.

Dated: January 12, 1995.

Stephen L. Johnson,

Director, Registration Division, Office of

Pesticide Programs.

Therefore, it is proposed that part 180

be amended as follows:

1. The authority citation for part 180

continues to read as follows:

Authority: 21 U.S.C. 346a and 371.

2. In § 180.287, by amending the table

therein by adding and alphabetically

inserting the raw agricultural

commodity dried hops, to read as

follows:

§ 180.287 Amitraz; tolerances for residues.

* * * * *

Commodity Parts per

million

* * * * *

Hops, dried ............................... 60

* * * * *

[FR Doc. 95–1320 Filed 1–18–95; 8:45 am]

BILLING CODE 6560–50–F

LEGAL SERVICES CORPORATION

45 CFR Part 1611

Eligibility

AGENCY: Legal Services Corporation.

ACTION: Proposed rule.

SUMMARY: The Legal Services

Corporation (‘‘LSC’’ or ‘‘Corporation’’)

proposes to amend regulations relating

to eligibility for LSC-funded legal

services. This regulation has been

substantially revised and reordered, in

part to simplify the regulation and

clarify current Corporation policy and

in part to revise Corporation policy,

particularly with respect to access by

LSC to client records.

DATES: Comments may be submitted on

or before March 20, 1995.

ADDRESSES: Comments may be

submitted to the Office of General

Counsel, Legal Services Corporation,

750 First St., NE., 11th Floor,

Washington, DC 20002–4250.

FOR FURTHER INFORMATION CONTACT:

Victor Fortuno, General Counsel, (202)

336–8810.

SUPPLEMENTARY INFORMATION: The

Operations and Regulations Committee

of the LSC Board (‘‘Committee’’) held

public hearings on June 20, 1994, and

September 17, 1994, in Washington, DC,

to consider a draft of proposed revisions

to 45 CFR part 1611, LSC’s regulations

on eligibility for LSC-funded legal

assistance. At a meeting in Washington,

DC, on October 28, 1994, the Committee

approved a draft to be published in the

Federal Register as a proposed rule for

public comment.

Under this proposal, part 1611 has

been substantially revised and reordered

to make the regulation less complex and

easier for recipients to apply. While

there are numerous proposals for

substantive change, the majority of the

revisions reflect the Committee’s desire

to make this rule more comprehensible

and less subject to confusion and

misinterpretation than is the current

regulation. Throughout the rule, there

are slight changes in language to clarify

the rule or to make it consistent with
Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Proposed Rules 3799

prior interpretations. Unless noted

below, these minor revisions do not

make any substantive change in the rule

and are not described in detail.

The Committee recognizes that

Congress may consider legislation that

would amend the LSC Act and

reauthorize appropriations for the

Corporation. Whenever Congress does

pass a new LSC Act, the Corporation’s

regulations will be revisited and revised

accordingly.

The Corporation is extending the

customary 30-day comment period to 60

days.

Section Analysis

Authority

This section has been revised to

include a reference to Sec. 1006(b)(3) of

the LSC Act, 42 U.S.C. 2996e(b)(3). This

provision states that the Corporation

shall not interfere with any attorney in

carrying out the attorney’s professional

responsibilities to a client or abrogate

the authority of a State or other

jurisdiction to enforce the standards of

professional responsibility applicable to

attorneys in that jurisdiction.

Section 1611.1 Purpose

The purpose section was revised to

clarify that it is intended to deal with

financial and other factors that may be

used to determine eligibility for LSCfunded legal services. In addition, the

Committee removed the language in the

current regulation that gives preference

to those least able to obtain legal

assistance. Although the original LSC

Act contained language indicating some

priority for those who were poorest, that

language was deleted when the Act was

reauthorized in 1977. There is nothing

in the current Act that requires a

program to give preference to those

‘‘least able to obtain legal assistance’’

and the Committee felt that it should

not be a part of the statement of purpose

for the regulation.

Section 1611.2 Definitions

Section 1611.2(a) ‘‘Applicable Rules of

Professional Responsibility’’

This new definition was added to

make it clear that the references in the

regulation are intended to refer to the

rules of ethics and professional

responsibility applicable to attorneys in

the jurisdiction where the recipient

either provides legal services or

maintains its records. If more than one

jurisdiction is involved and there is a

difference in the rules of disclosure

between the jurisdictions, the

Committee wished the Commentary to

make clear that, in the Corporation’s

view, the rule that was more protective

of client confidentiality should govern

the disclosure of information to the

Corporation. It recognized, however,

that the applicable law governing

conflict of laws may differ from that

view and would control. The

Corporation seeks comments regarding

any conflict of laws issues that might

arise. The new definition is consistent

with section 1006(b)(3) of the Act that

states that LSC cannot abrogate the

authority of the pertinent jurisdiction to

enforce the applicable rules.

Section 1611.2(b) ‘‘Assets’’

This new definition was intended to

give programs some guidance as to what

needs to be included in a program’s

consideration of an applicant’s assets,

but leaves substantial discretion to the

recipient to come up with a description

of assets that meets local concerns and

conditions. This is a minimal definition

that includes only liquid resources, but

local programs may include non-liquid

assets, as are included under the current

requirement, if they decide that

inclusion is appropriate. LSC added the

regulatory requirement for consideration

of non-liquid assets when it revised part

1611 in 1983, but the LSC Act, section

1007(a)(2)(B)(i), only requires that

recipients take into account liquid

assets.

The proposed definition requires

inclusion of only those liquid assets or

other resources that are ‘‘readily

convertible to cash, which are currently

and actually available to the applicant

and which could be used to hire private

counsel.’’ Thus, assets that are in the

applicant’s name, but are being held in

trust until the applicant reaches a

certain age or status need not be

considered. Similarly, assets that are

controlled by a guardian or conservator

need not be considered, although

income from the trust that is distributed

by the guardian or conservator to the

applicant should be included in total

cash receipts. A recipient could make a

case-by-case determination of whether

resources that could be sold, pawned or

mortgaged should be considered to be

resources that are ‘‘readily convertible

to cash’’ or whether an individual

should be required to borrow against a

pension or other asset.

Section 1611.2(c) ‘‘Governmental

program for low-income individuals or

families’’

The Committee changed the term that

is used in the regulation from

‘‘governmental program for the poor’’

although the definition remains

unchanged.

Section 1611.2(d) ‘‘Income’’

The Committee revised this definition

to include total cash receipts of a

‘‘household’’ as an alternative to ‘‘family

unit,’’ and to permit programs to choose

to use whichever term is more

appropriate for the individual or local

circumstances. Income is reviewed on

an annual basis, rather than at a

particular point in time because the

Federal Poverty Guidelines, upon which

the maximum income levels are based,

are stated in terms of annual income.

Thus, if an applicant for services

currently has a low-wage job, but was

unemployed with no other income for

several months, income should be

adjusted to take account of overall

income over the prior year. Similarly, if

an applicant’s income is sporadic, as

with temporary or day workers, income

should be estimated on an annual basis,

rather than on income for the current

week or month. The Committee requests

comments from the public on any

additional guidance that may be needed

by field programs in applying this

definition.

Section 1611.2(e) ‘‘Total Cash

Receipts’’

The Committee revised this definition

by removing much of the detailed

information contained in the current

definition and adding general language

that describes the kind of resources that

should be considered as part of income.

The Committee felt that by including

the detail in the regulation itself, the

language could be viewed as a rigid

framework for compliance that did not

permit consideration of other possible

income sources or the particular

circumstances of the individual

applicant. The new definition makes it

clear that ‘‘total cash receipts’’ means

money received by and currently

available to an applicant for services.

Thus, it would not include food or rent

in lieu of wages, rent subsidies, food

stamps, health insurance premiums

paid by an employer, Medicaid

payments to a health care provider, or

other non-cash benefits or payments

made to a third party on behalf of the

applicant, over which the applicant has

no control. The revised language refers

to ‘‘net income from self-employment’’

rather than specifying the deductions.

Finally, the revised language refers to

‘‘other regular or recurring sources of

financial support that are actually

available to the applicant.’’ These would

include such things as social security,

public or private pension payments;

regular insurance or annuity payments;

unemployment or worker’s

compensation payments; strike benefits
3800 Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Proposed Rules

from union funds; veterans benefits;

alimony, child support, military family

allotments or other regular support from

an absent family member or some other

third party not living in the household;

or income from dividends, interest,

rents, royalties, estates or trusts that are

available to or used for the benefit of the

applicant for service.

Total cash receipts would not include

the income of an absent, noncontributing spouse, nor would it

include such one-time items as money

withdrawn from a bank, tax refunds,

gifts, insurance payments or cash

settlements for injuries sustained unless

paid out over time on a regular basis.

These one-time items, however, should

be considered by the recipients when

reviewing an applicant’s assets before

determining eligibility. The question of

how to treat income taxes that are

withheld from salary or paid

periodically is dealt with in a later

section. The current regulation includes

‘‘training stipends’’ as part of ‘‘income.’’

A recipient should be able to decide

whether a particular training stipend,

fellowship, scholarship or similar

payment constitutes income to the

applicant. That determination may

depend on whether the payment is paid

to the applicant or directly to an

educational or training institution;

whether the payment is intended to

cover tuition or living expenses; and

other similar considerations. Finally, a

recipient should be able to determine

whether money is actually and currently

available to the applicant. For example,

money paid in trust to an applicant, but

not available until the applicant reaches

a particular age or status, may not be

income.

Section 1611.3 Eligibility Policies or

Guidelines

Section 1611.3(a)

This subsection is based on language

that appears in § 1611.5(a) of the current

part 1611, but it is substantially revised

and relocated. The provision does not

simply refer to the annual income

ceiling, which is dealt with in the next

section. Rather, it refers to the overall

set of policies or guidelines that a

recipient follows to establish eligibility

for LSC-funded services, including both

financial and non-financial

considerations. While the Committee

agreed that a recipient ought to review

its annual income ceilings annually in

light of revisions to appendix A, the

Committee felt that the eligibility

guidelines themselves needed to be

reviewed less frequently. An annual

review requirement, such as that under

the current regulation, often encourages

a mere pro forma review. The

Committee felt that a less frequent

review would encourage more

thoughtful analysis.

Section 1611.3(b)

This subsection is based on

§ 1611.5(b)(2)(D) of the current

regulation, but the provision has been

moved up in the proposal to guide the

recipient through the process of

determining financial eligibility in a

more logical manner. It makes it clear

that under the LSC Act recipients must

consider an applicant’s assets before

determining that the applicant is

financially eligible.

Section 1611.3(c)

This subsection is based on the

remaining factors listed in § 1611.5(b) of

the current regulation. It discusses those

additional factors that a recipient may

consider before determining that an

applicant who might be financially

eligible on the basis of income alone

should be served. While these are

factors that the recipient would

generally use to disqualify an otherwise

financially eligible applicant, the

Committee recognized that they might

also be weighed against one another to

permit a recipient to determine that a

particular applicant should be served.

For example, a recipient might

interview an applicant for services

whose current income is below the

recipient’s income ceiling, but who

anticipates a significant increase in

income because he or she has been

promised a job that is scheduled to start

in several weeks. Looking only at

income and income prospects, the

recipient might determine not to

provide service to that applicant. If,

however, the applicant is seeking

emergency legal assistance to prevent

the loss of the family’s home, the

recipient could weigh the severity of the

consequences for the individual if legal

assistance is denied and decide that, on

balance, it should undertake the

representation. However, if, during the

course of the representation, the

promised job materializes, the recipient

would have to determine whether the

change in circumstances requires that

assistance be discontinued, pursuant to

§ 1611.10.

The Committee added language

regarding the recipient’s priorities, as

well as other case acceptance criteria to

make it clear that financial eligibility

based on income and assets does not

create an entitlement to legal services.

Financial eligibility is only one piece in

the puzzle that determines whether a

recipient will actually represent any

particular applicant for service. A

recipient should look to its own

priorities as well as any other case

acceptance criteria that it has adopted to

manage its caseload, including conflicts

considerations and factors used in

determining whether a case has

sufficient merit to justify expenditure of

scarce resources.

Section 1611.4 Annual Income

Ceilings

The Committee changed the name of

this section, which is found in § 1611.3

in the current regulation, from

‘‘maximum income level’’ to ‘‘annual

income ceilings.’’ The term ‘‘maximum’’

is used twice in this section of the

current regulation with respect to two

different sets of numbers and is

confusing and misleading. Under the

current rule, LSC is required to set a

‘‘maximum’’ income level, currently

125% of the Federal Poverty Income

Guidelines, but recipients can set their

own ceilings (or maximum) on income

at any level at or below the LSC

‘‘maximum.’’ In addition, the current

regulation permits recipients to make

exceptions to the ‘‘maximum’’ income

level to take account of factors that limit

an applicant’s ability to afford legal

services, so the recipient’s income level

may not really represent a maximum.

The Committee felt that the use of the

term ‘‘annual income ceilings’’ was

more appropriate to describe how the

section was to be applied, and it is

consistent with the term ‘‘asset ceilings’’

that is used later in the regulation.

Section 1611.4(a)

The Committee added language to

emphasize that the recipient’s annual

income ceiling is applicable only to

legal assistance supported by LSC

funds. Other funders may set their own

income eligibility levels, and many have

done so or have based eligibility for

services on some other basis, such as

age or status. Some funders have chosen

to adopt LSC financial eligibility

guidelines to determine eligibility for

services supported with their funds.

This additional language does not

represent any substantive change from

current law, but does emphasize what

was not always clear under the current

regulation, i.e., that other funders are

not bound by LSC eligibility guidelines

and recipients may use whatever

eligibility standards the non-LSC funder

prescribes.

The Committee also added language

to make it clear that both income and

assets are to be used to determine

financial eligibility, but that financial

eligibility does not entitle a particular

applicant to receive legal services, since

a recipient may also consider other
Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Proposed Rules 3801

factors in making a determination of

whether or not to provide services.

Section 1611.4(b)

The language of this section was

revised to clarify its meaning, but no

substantive changes are intended. The

Committee felt that while the recipient’s

annual income ceiling did need to be

reviewed annually to insure that the

program had considered the current

figures in appendix A, programs should

not be required to raise their income

levels consistent with the changes in

Appendix A.

The Committee discussed whether it

should consider raising the LSC

maximum for income ceilings from the

current 125% of the Federal Poverty

Guidelines to take account of the reality

that those guidelines have not kept up

with the cost of living nationally and

that people need substantially more

than 125% of those guidelines to live

above poverty. At the same time, the

Committee acknowledged that limited

resources prevent recipients from

serving most of the applicants for

service who are eligible at 125% of the

official poverty level. They also

discussed whether they should revisit

the issue of including some differential

to take account of urban and rural

differences in the cost of living. Section

1007(a)(2)(A) of the LSC Act requires

LSC to take account of family size, rural

and urban differences as well as

substantial cost-of-living variations. At

present there are different levels

depending on family size, and there are

higher income levels to take account of

the acknowledged higher cost of living

in Alaska and Hawaii, but there is no

differential for urban versus rural

poverty. The Committee decided that it

would recommend no change for

purposes of revising part 1611, but

recommended that the Board look into

the issue and decide whether it wished

to make any changes. The Committee

welcomes comments on these issues.

Section 1611.4(c)

This section was revised to reflect the

fact that the ‘‘cost of living’’ factor is the

only factor listed in this provision that

is specifically required by the Act to be

considered by recipients in setting the

annual income ceiling. Other factors

that are relevant to a particular recipient

must also be considered but it will be

up to the recipient to determine which

other factors are relevant to its service

area.

Section 1611.4(d)

This subsection is based on

§ 1611.3(d) of the current rule.

Additional language was added to

emphasize that the recipient’s annual

income ceiling is applicable only to

legal assistance supported by LSC

funds. Legal assistance supported in

whole by non-LSC funds may be

provided to applicants for service who

do not meet LSC income guidelines.

Other funders may set their own income

eligibility levels. Nevertheless, to the

extent that LSC funds are used to

support the legal assistance, only

financially eligible clients may be

served.

The Committee wanted the

Commentary to make clear that this

section does not prevent a recipient

from using LSC funds to support its

intake system, even though some

applicants for service will clearly be

ineligible. Performing intake to

determine eligibility is not the same as

providing legal assistance. Nor does the

section prohibit recipients from

providing some limited service to

applicants who are financially

ineligible. For example, if after

completing intake, a recipient finds an

applicant to be ineligible, the recipient

may provide the applicant with referrals

to other sources of legal or other

assistance that could be helpful, may

provide pamphlets or other written

materials that are available to assist the

applicant, or may provide some simple,

basic advice that would enable the

applicant to handle his or her own

problem without legal assistance.

Deletion of Current § 1611.5

Determination of Eligibility

The provisions of this section have

been incorporated into other sections of

the proposal to simplify the regulation

and give it a more logical and easy-tofollow structure.

Section 1611.5 Authorized Exceptions

to the Recipient’s Annual Income

Ceilings

This section includes subsections

from §§ 1611.4 and 1611.5 of the current

regulation, but they have been reordered

and revised. These factors, which may

be considered here, should be viewed as

limitations on an applicant’s use of his/

her income that would permit a

recipient to deem the applicant as

falling below the income ceiling.

Section 1611.5(a)

The changes were designed

principally to simplify the language of

the regulation, although the revisions

contained in the introductory language

to the section do provide recipients with

slightly more flexibility in deciding

which applicants for service whose

unadjusted income exceeds 125% of the

official poverty line nevertheless may be

deemed to be financially eligible. The

current regulation permits consideration

of applicants for service whose

unadjusted income is below 150% of

the national LSC eligibility level, or

187.5% of the official poverty line. This

proposal simplifies the calculation and

raises the outside limit for unadjusted

income to 200% of the official poverty

line. The introduction also makes it

clear that the applicant must still meet

the asset limit test in § 1611.3(b) and

that the recipient should still consider

the factors in § 1611.3(c) before deciding

whether to serve any particular person.

Section 1611.5(a)(1)

The language of this subsection was

revised to make it clear that recipients

could serve persons up to 200% of

poverty if the person was seeking to

maintain benefits as well as to secure

them in the first instance.

Section 1611.5(a)(2)

This new subsection was added to

permit recipients to serve persons with

incomes up to 200% of poverty to

secure or maintain disability benefits,

but only if without those benefits the

person would be otherwise eligible. The

Committee felt that for many disabled

persons, disability benefit programs

provided only subsistence support and

those individuals should be treated in

the same way as those seeking to secure

or maintain benefits available on the

basis of financial need. The Committee

also recognized, however, that many

disabled individuals who are eligible for

disability benefits may not be

particularly economically

disadvantaged, and should not be

eligible for legal assistance simply by

virtue of their eligibility for those

benefits.

Section 1611.5(a)(3)

This subsection lists those factors that

a recipient should consider in making a

determination that a particular

applicant for service whose income is

between 125% and 200% of poverty

should be deemed eligible for LSCfunded services. The factors are, with

several changes discussed below, the

same as those factors that appear in

§ 1611.5 (b) of the current regulation.

Paragraph (B) has been revised to

make it clear that if a person’s medical

expenses are reimbursed, through

insurance or a government program

such as Medicare or Medicaid, those

reimbursed expenses cannot be

deducted in determining eligibility; if,

however, if a person has paid bills and

is awaiting future reimbursement, those

expenses could be deduced. In that case,

when the actual reimbursement is
3802 Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Proposed Rules

received, there would be an increase in

assets and a potential change in

circumstances, see § 1611.10. In

addition, the language has been changed

so that it is clear that a person whose

income is devoted primarily to payment

of medical expenses may be considered

eligible for LSC services without regard

to income, but only if the applicant’s

income does not exceed the recipient’s

annual income ceiling after

unreimbursed expenses are deducted.

Paragraph (C) has been revised in

several respects. First, the proposal

removes the discrimination against the

working poor that is inherent in the

existing rule, which does not exclude

current taxes from the calculation of

available income. Second, since

alimony and/or child support payments

made to a current or former spouse or

custodial parent are included in the

current definition of income for those

who receive them, the Committee

agreed that they should also be

deducted from income for those who

pay them. Another issue that has arisen

from time to time is the treatment of

rent versus mortgage payments under

this provision. In general, rent for

housing has not been included as a

fixed obligation under this section, but

several General Counsel’s opinions have

treated mortgage payments as fixed

debts, creating a discrimination against

renters in favor of homeowners. In order

not to discriminate against renters, both

rent and mortgage payments should be

treated the same way. The Committee

seeks comments on whether both rent

and mortgage payments should be

permitted as factors. The Committee

also seeks comments on any other types

of fixed debts or obligations that should

be specifically included in the language

of the rule or in the Commentary.

Paragraph (D) has been revised to

provide explicitly that educational or

job training expenses necessary to

prepare a person for work should be

treated the same as expenses related to

actual employment.

Paragraph (E) has been revised to

make it clear that not all expenses that

can reasonably be attributable to age or

disability are deductible, but only those

that are unusual. Programs can make

that determination on a case-by-case

basis.

Paragraph (F) has been revised to

make it clear that the recipient has

discretion to consider other factors to

deem a particular applicant eligible for

services, even though the applicant is

over the program’s annual income

ceiling, but below 200% of poverty.

Section 1611.5(b)

The Committee proposes to revise the

provision in the current regulation that

requires recipients to maintain specific

documentation relating to decisions to

provide representation to individuals

whose income is between 125% and

187.5% of poverty. The Committee

believes that requiring the recipient to

keep this information in the client’s file,

as is the case under the current

regulation, could interfere with LSC’s

ability to have access to the information

that it needs without going into the

client case files and possibly

compromising confidentiality. Thus, the

record that the recipient keeps to meet

the requirement of this section for

purposes of informing LSC about the

exceptions should be maintained

separate from any client case files. The

Committee also believes that the current

provision does not contain sufficient

protection to insure that LSC would not

have access to any client information

that should be protected under

applicable rules of professional

responsibility, and has incorporated a

reference to § 1611.8(d) that delineates

the parameters of LSC’s access to such

information. The Committee noted that,

under the proposed regulation, the

applicable rules were those of the

jurisdiction where the records were kept

or where the services were provided,

whichever were more protective of the

client’s privacy. However, the

Corporation seeks comments on any

conflict of laws questions that would be

raised by the proposed provision.

Section 1611.6 Asset Ceilings

Section 1611.6(a)

The requirement for annual

establishment of asset ceilings and

transmittal to LSC has been deleted in

keeping with the Committee’s effort to

eliminate unnecessary reporting

requirements. Compliance with the

asset ceiling guideline requirement can

be assured through periodic monitoring,

self-assessments, or other compliance

processes. The proposed revised

subsection requires that recipients

review their asset ceilings as part of the

overall review of eligibility policies or

guidelines that must be done at least

once every three years under § 1611.3(a)

of this proposed regulation. In addition,

language has been added to make it

clear that asset guidelines must be

considered in determining eligibility for

service, whether the applicant’s income

is below 125% of poverty or below

200% of poverty. Finally, the

Committee deleted the language that

required recipients to consider nonliquid assets. The LSC Act, section

1007(a)(2)(B)(i), only requires that LSC

guidelines ensure that recipients take

into account liquid assets; it does not

mention non-liquid assets. When part

1611 was amended in 1983, LSC added

the requirement for consideration of

non-liquid assets. When read with the

definition of assets contained in

§ 1611.2, this proposal goes back to the

original treatment of assets in the first

regulation and in the LSC Act.

Section 1611.6(b)

The Committee deleted the specific

items that the current regulation

requires be considered in establishing

asset guidelines and those that the

current regulation permits to be

exempted from the asset guidelines. The

Committee felt that this level of detail

was not required by the Act and was

inappropriate to include in the

regulation, and that recipients should be

able to establish asset guidelines based

on their determination of local

conditions, with flexibility to consider

the circumstances of a particular

applicant for service as well as local

economic conditions and other local

concerns. In addition, the Committee

felt that it was appropriate to explicitly

permit recipients to look to other

existing federal or state asset exemption

schemes for guidance in setting their

own guidelines.

Section 1611.6(c)

The language of this subsection has

been revised to correct a reference in the

current regulation to ‘‘minimum’’, rather

than ‘‘maximum’’ asset ceilings. In

addition, the subsection was revised to

make it clear that the director of a

recipient could designate another staff

member to make the determination to

waive the asset ceilings in unusual

situations, and to remove the

requirement that documentation for

such waivers be maintained in the

individual client’s file. This was done to

protect materials in the case file from

inadvertent and improper disclosure to

LSC.

Section 1611.6(d)

This documentation provision has

been revised to refer to § 1611.8(d) to

describe the general limitations on

LSC’s access to records and information.

Section 1611.7 Group Eligibility

This proposed section deals with the

issue of group eligibility that is

addressed in § 1611.5(b)(2)(C) of the

current regulation. The Committee

decided to treat this issue in a separate

section to make it clear that different

criteria apply to the consideration of

whether or not a group is eligible for
Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Proposed Rules 3803

LSC-funded legal assistance. This

proposal incorporates a number of

revisions to the current language. This

new language is based on the original

group representation provision that was

in effect from 1976 until 1983. While

the new proposal is based on the 1976

provision, there are several changes. In

order to clarify the provision, the order

was changed and some of the language

was revised.

Section 1611.7(a)

The Committee added a reference to

‘‘financial’’ eligibility of group members

in paragraph (1) To make it clear that

group members had only to be

financially eligible for services, not that

they would actually receive services for

a particular matter. Paragraph (2) which

includes the ‘‘primary purpose’’

provision, was revised to make it clear

that a group could be served as long as

its main function or activity is the

furtherance of the interests that benefit

people in the community who would be

eligible for legal assistance under the

Act, and the representation relates to

such a function or activity.

Section 1611.7(b)

This new provision was added to

emphasize that recipients may use nonLSC funds to provide legal assistance to

groups that do not meet the criteria of

this section.

The Committee discussed whether the

group representation provisions were

sufficient to take account of the

uniqueness of Indian tribes and raised

the issue of whether the regulation

should include special treatment for

tribes under this section. While the

Committee did not propose adding any

specific language to the proposal, it

would welcome comments from

members of the Native American

community and others on the degree to

which the proposed language meets the

concerns of that community.

Section 1611.8 Manner of Determining

Financial Eligibility.

Section 1611.8(a)

Many of the revisions in this section

are intended to simply clarify the

language. The principal changes relate

to the role of LSC in reviewing intake

forms and financial information

provided to recipients by applicants for

services. Under the current regulation,

the Corporation has authority to

approve both the forms and procedures

that a recipient uses to determine

eligibility. That authority is no longer

contained in this proposal. In addition,

the proposed § 1611.8(a) refers to

§ 1611.8(d) regarding LSC’s access to

client information.

Section 1611.8(b)

The revisions to this provision are

intended to clarify the language of the

provision, but no substantive changes

are intended.

Section 1611.8(c)

This new provision was added to

make it clear that national and state

support centers can provide assistance

to local field programs or co-counsel

with them in cases without making

independent eligibility determinations

for clients referred by field programs.

The support center should, of course, be

able to satisfy itself that such a

determination was actually made by the

field program. The Committee wished to

make clear that a support center was

free to review a client’s eligibility before

undertaking representation, if it so

chose, but it was not required to do so

if satisfied by the actions taken by the

original recipient.

Section 1611.8(d)

This subsection has been substantially

revised in the proposed new regulation.

The Committee believes that the

provisions on access to client eligibility

information contained in the current

regulation may have been applied in a

manner that was inconsistent with the

applicable rules of professional

responsibility and section 1006(b)(3) of

the LSC Act that prohibits LSC from

abrogating the authority of states and

local jurisdictions to enforce those rules.

The ABA’s Standing Committee on

Legal Aid and Indigent Defendants

(‘‘SCLAID’’) expressed great concern

about the protection of client

confidences, secrets, and other

information gained in the course of

representation. SCLAID urged the

Committee to adopt rules that would

permit LSC to have access to

information only in a manner consistent

with the applicable rules of professional

responsibility. The Committee proposal

makes it clear that information

disclosed by a client or applicant for

service in order to establish eligibility

for services should not be disclosed to

LSC or to any third party without the

express written permission of the client

or applicant, unless disclosure is

permitted by and would not violate the

attorney-client privilege and the

applicable rules of professional

responsibility. The Committee

recognized that such a provision might

mean that LSC could be subject to

somewhat different rules in each

jurisdiction, but agreed that Congress, in

enacting section 1006(b)(3) of the Act,

clearly intended that the state or local

rules would govern. The Committee

noted that LSC would have to discharge

its responsibilities for ensuring that LSC

funds were used to serve only

financially eligible clients and in a

manner consistent with the disclosure

requirements of each jurisdiction. LSC

is working to develop general

procedures to permit it to fulfill its

obligations in this regard. The

Committee welcomes comments that

would assist the Corporation in

designing such procedures.

Finally, the Committee proposal

noted that recipients may reveal to third

parties information provided by a client

or applicant to establish eligibility when

the disclosure of the information is

implicitly authorized in order to carry

out the representation, as permitted by

Rule 1.6(a) of the ABA’s Model Rules of

Professional Conduct, subject to any

variations in the rules adopted by

various states or local jurisdiction.

There are many situations where the

client either wants such disclosures

made or where it can be assumed that

the client wants disclosure made in

order to advance the task the lawyer has

been asked to carry out on behalf of the

client. Examples include sharing

financial information about a client with

the court or counsel for the opposing

party in a divorce action where

necessary to establish appropriate

alimony or child support payments or

with an administrative agency that has

cut off welfare benefits based on the

alleged existence of other income.

Clearly, by seeking representation in

these cases, a client has implicitly

authorized the limited sharing of

information needed for full

representation, but has not authorized

the disclosure of that information for

other purposes not directly related to

the case or matter.

The Committee discussed the possible

need for LSC to develop a records

retention policy to ensure that

recipients maintained records relating to

eligibility for a sufficient period to

guarantee accountability. The

Committee did not recommend any

particular policy, but would like to

receive comments on whether such a

policy would be desirable and what

should be included in such a policy.

Section 1611.9 Retainer Agreement

Section 1611.9(a)

While keeping the requirement for

recipients to execute written retainer

agreements with all clients who are

represented by the recipient, the

Committee decided to delete the

requirement that LSC approve or reject
3804 Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Proposed Rules

the particular form of a recipient’s

agreement. The language makes it clear

that retainers are needed only when the

recipient actually undertakes

representation. Some forms of legal

assistance, such as pro se clinics or

community legal education, do not

require the recipient to obtain retainer

agreements from everyone who attends.

The proposal acknowledges that many

jurisdictions have their own rules or

practices regarding retainer agreements,

and that recipients should make sure

their retainers are consistent with those

rules, as well as with local practice,

where applicable. Nothing in the

current LSC Act requires retainer

agreements, although all of the current

LSC reauthorization bills would include

such a requirement, and the Committee

acknowledged that it is good practice in

most instances to have a written

retainer.

Section 1611.9(b)

The Committee decided to remove the

language relating to emergencies, in

recognition of the fact that there may be

numerous circumstances when a

recipient could not immediately execute

a retainer before taking action on behalf

of a client. The Committee also decided

to delete the specific information that

needed to be included in a retainer

agreement, recognizing that such

requirements could be inconsistent with

requirements governing retainer

agreements in state rules of professional

responsibility.

Section 1611.9(c)

This provision was revised in

response to a concern that, if the

retainer was required to be included in

the client’s file and was subject to

examination by LSC during monitoring,

it might give LSC an opportunity to

review the whole file, which could

violate the restrictions on LSC access to

client information, even though the

current rule suggests that client identity

is protected. As with eligibility

information, this section requires that

disclosure of information be consistent

with the attorney-client privilege and

the applicable rules of professional

responsibility. The Committee

recognized that in most instances, the

recipient could simply redact the names

and other identifying information from

the retainer agreement to meet the

standard set out in this section.

However, there might be instances

where a particular retainer agreement

includes more information about the

actual representation than would a

financial intake sheet. The retainer

agreement, for example, might reveal so

much information about the client or

case that it would be impossible to

protect client identity by redacting only

client identifying information such as

name and address. In such a case, all

additional information that could

indirectly reveal client identity would

have to be redacted as well.

In cases where the identity of the

client is already known, review of a

retainer agreement could reveal

substantial information that relates to

representation. SCLAID reiterated its

concern about protection of client

information. Clearly, the Corporation

would need to devise procedures that

would balance its need to ensure that

retainer agreements are being properly

executed and maintained, while

appropriately protecting client

information. The Committee welcomes

comments on such procedures.

Section 1611.9(d)

The Committee adopted additional

language in its revision of this provision

to expand the explanation of the

circumstances under which a retainer

agreement was not necessary, such as

when the service was of brief duration

or very limited in scope. This provision

would be particularly important for

programs that operate telephone

hotlines, where, in many instances, the

services consist of limited advice or

consultation and the only contact with

the client is via telephone. The issue is

where to strike the balance between

protecting the interests involved and

limiting the administrative burdens on

recipients. The Committee invites

public comment on this issue.

Section 1611.9(e)

This provision was added to deal with

the situation where a state or national

support center has joined a case brought

by a local recipient as co-counsel. This

provision makes it clear that the client

must have notice that another program

is assisting in the representation, and

the original retainer agreement must be

broad enough in scope to encompass the

new services that are being provided.

The Committee wanted to distinguish

the co-counselling situation from the

case where a local field program turned

the representation over to a support

center or other recipient, with the

original recipient no longer serving as

counsel in the case. The Committee felt

that a new retainer agreement should be

required in that situation, but invites

comments on the issue. Nothing in this

provision would prevent a support

center from executing a new retainer

agreement with a client, even when the

relationship is clearly one where the

support center is only a co-counsel in

the case, and there may be situations

where it would be necessary or prudent

for it to do so.

The Committee also wished the

Commentary to make clear that this

provision was not applicable to

situations where a recipient does intake

and financial eligibility screening for an

applicant for service and then refers the

applicant to another attorney who has

agreed to represent the applicant on a

pro bono basis, either through the

recipient’s PAI program or on some

other basis. In that instance, the private

attorney, not the recipient, is

representing the client, and any retainer

agreement should be made between the

client and the private attorney, subject

to any appropriate standards governing

pro bono practice. The Committee

invites additional comments on this or

other situations that may arise where

other attorneys are involved in the

representation of eligible clients.

Section 1611.10 Change in

Circumstances

The Committee proposes two

revisions to the current language. The

first changes the phrase ‘‘is sufficiently

likely to continue’’ to ‘‘is sufficient and

is likely to continue,’’ in order to clarify

what is meant by the phrase. The

second revision expands the language

regarding professional responsibilities.

The recipient may have obligations to

the client beyond those of the

individual attorney and ethical concerns

might be broader than professional

responsibilities. In addition, the

Committee invites comments from the

public as to whether this provision is

adequate to deal with the issue of when

a change in a client’s circumstances

would require discontinuation of

representation by the recipient and what

procedures a recipient should follow to

effect such discontinuation.

List of Subjects in 45 CFR Part 1611

Legal services.

For reasons set forth in the preamble,

LSC proposes to revise 45 CFR part 1611

to read as follows:

PART 1611—ELIGIBILITY

Sec.

1611.1 Purpose.

1611.2 Definitions.

1611.3 Eligibility policies or guidelines.

1611.4 Annual income ceilings.

1611.5 Authorized exceptions to the

recipient’s annual income ceiling.

1611.6 Asset ceilings.

1611.7 Group eligibility.

1611.8 Manner of determining financial

eligibility.

1611.9 Retainer agreement.

1611.10 Change in circumstances.
Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Proposed Rules 3805

Appendix A—Legal Services

Corporation Poverty Guideline

Note: Appendix A: The Corporation is not

requesting comments on the current

Appendix. The Appendix is revised

annually, after the Corporation receives the

new Federal Poverty Guidelines.

Accordingly, the Appendix will be revised

for 1995 at a later date.

Authority: 42 U.S.C. 2996e(b)(1),

2996e(b)(3), 2996f(a)(1), 2996f(a)(2).

§ 1611.1 Purpose.

This part is designed to ensure that a

recipient will determine eligibility for

legal assistance according to financial

and other criteria that take account of

factors that influence an individual’s or

group’s ability to obtain legal assistance,

and to afford sufficient latitude for a

recipient to consider local

circumstances and its own resource

limitations. This part also seeks to

insure that eligibility is determined in a

manner conducive to development of an

effective attorney-client relationship.

§ 1611.2 Definitions.

(a) Applicable rules of professional

responsibility means the rules of ethics

and professional responsibility

generally applicable to attorneys in the

jurisdiction where the recipient either

provides legal services or maintains its

files.

(b) Assets means, at a minimum, cash

or other liquid assets or resources that

are readily convertible to cash, which

are currently and actually available to

the applicant and which could be used

to retain private counsel.

(c) Governmental program for low

income individuals or families means

any Federal, State or local program that

provides benefits of any kind to persons

whose eligibility is determined on the

basis of financial need.

(d) Income means actual current

annual total cash receipts before taxes of

all persons who are resident members

of, and contribute to the support of a

household or family unit.

(e) Total cash receipts include, but are

not limited to, money, wages and

salaries before any deduction; net

income from self-employment; regular

cash payments from public assistance

and other benefit programs; and other

regular or recurring sources of financial

support that are currently and actually

available to the applicant for service.

§ 1611.3 Eligibility policies or guidelines.

(a) The governing body of a recipient

shall adopt eligibility policies or

guidelines, consistent with this part, for

determining the eligibility of persons

and groups seeking legal assistance

under the Act. The governing body shall

review its eligibility policies or

guidelines at least once every three

years and make adjustments if

necessary.

(b) In addition to consideration of

income under §§ 1611.4 and 1611.5, the

recipient’s eligibility policies or

guidelines shall provide that, before

undertaking representation or providing

services to an applicant, the recipient

shall consider the existence of assets

available to the applicant, and shall

disqualify any applicant for service

whose assets are in excess of the asset

ceiling set by the recipient pursuant to

§ 1611.6, unless a waiver is granted

pursuant to § 1611.6(c).

(c) The recipient’s eligibility policies

or guidelines may also provide for

consideration of the following factors

which may be used by the recipient to

determine whether or not to provide

services to a particular financially

eligible applicant for service:

(1) The applicant’s current income

prospects, taking into account seasonal

variations in income;

(2) The availability of private or other

legal representation at low or no cost

with respect to the particular matter in

which assistance is sought;

(3) The consequences for the

individual or group if legal assistance is

denied;

(4) Other significant factors that affect

an individual’s financial inability to

afford legal assistance, which may

include evidence of a prior

administrative or judicial determination

that a person’s present lack of income

results from refusal or unwillingness,

without good cause, to seek or accept

suitable employment; and

(5) Any other case acceptance criteria,

in addition to the recipient’s priorities

established under Part 1620 of these

regulations, that the recipient may

utilize to determine which cases to

accept from among cases of financially

eligible persons or groups. Such criteria

shall include, but are not limited to,

consideration of the merits of the

applicant’s claim and any conflicts of

interest that may exist.

§ 1611.4 Annual income ceilings.

(a) Every recipient shall establish an

annual income ceiling. Unless

disqualified on the basis of assets under

§ 1611.3(b), applicants for services

whose income falls below the

recipient’s annual income ceiling will

be considered financially eligible to

receive legal assistance supported with

funds provided under the Act, subject to

the recipient’s consideration of the

factors described in § 1611.3(c).

(b) Unless specifically authorized by

the Corporation, a recipient shall not

establish an annual income ceiling that

exceeds a maximum of one hundred and

twenty-five percent (125%) of the

current official Federal Poverty

Guidelines. The calculations of 125% of

the current Federal Poverty Guidelines

are set forth in Appendix A to this part

as revised annually. The recipient’s

governing body shall review the

recipient’s annual income ceiling

annually and consider any changes

made in Appendix A to this part.

(c) Before establishing its annual

income ceiling, a recipient shall

consider cost of living in the service

area. The recipient shall also consider

other factors that it determines are

relevant. These factors may include, but

are not limited to:

(1) The number of clients who can be

served by the resources of the recipient;

(2) The population who would be

eligible at and below alternative income

ceilings; and

(3) The availability and cost of legal

services provided by the private bar in

the area.

(d) Unless authorized by § 1611.5, no

person whose income exceeds the

annual income ceiling established by a

recipient shall be eligible for legal

assistance supported with funds

provided under the Act, but this part

does not prohibit a recipient from

providing legal assistance to an

applicant for service whose annual

income exceeds the annual income

ceiling established by the recipient, if

the legal assistance provided to the

person is supported in whole by funds

from a source other than the

Corporation.

§ 1611.5 Authorized exceptions to the

recipient’s annual income ceiling.

(a) Subject to the recipient’s

consideration of the factors described in

§ 1611.3(c), an applicant for service

whose income exceeds the annual

income ceiling established by a

recipient, but does not exceed 200% of

the Federal Poverty Guidelines, may be

provided legal assistance supported by

funds provided under the Act if the

applicant would not be disqualified on

the basis of assets under § 1611.3(b),

above; and

(1) The applicant is seeking legal

assistance to secure or maintain benefits

provided by a governmental program for

low income individuals or families;

(2) The applicant is seeking legal

assistance to secure or maintain benefits

provided by a governmental program for

the disabled, but only if without those

benefits the applicant’s income would

not exceed the recipient’s annual

income ceiling; or
3806 Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Proposed Rules

(3) The recipient determines that the

applicant should be deemed to be

eligible for services on the basis of one

or more of the following factors that

restrict the applicant’s financial ability

to afford private legal assistance:

(i) The applicant’s current income

prospects, taking into account seasonal

variations in income;

(ii) Unreimbursed medical or nursing

home expenses, but if an applicant’s

income is primarily committed to

medical or nursing home expenses, the

applicant may be served if his or her

income is over 200 percent of the

Federal Poverty Income Guidelines but

does not exceed the recipient’s annual

income ceiling after such expenses are

deducted;

(iii) Fixed debts and obligations,

including but not limited to, current

Federal, state or local taxes withheld

from salary or paid periodically, unpaid

Federal, state or local taxes from prior

years, child support or alimony

payments made to a current or former

spouse, custodial parent, guardian or

other custodian of a dependent minor

child;

(iv) Child care, transportation, and

other expenses necessary for

employment, job training or educational

activities in preparation for

employment;

(v) Unusual expenses associated with

age or disability of a resident family

member; or

(vi) Other significant factors that the

recipient finds are related to the

applicant’s financial ability to afford

private legal assistance.

(b) In the event that a recipient

determines that it will provide legal

assistance pursuant to § 1611.5(a), the

recipient shall document the specific

factor(s) relied on to make the

determination. The recipient shall keep

such records as are necessary to inform

the Corporation as to the number of

such cases and the specific factors relied

on to make such determinations,

consistent with the restrictions on

disclosure contained in § 1611.8(d).

§ 1611.6 Asset ceilings.

(a) The governing body of the

recipient shall establish guidelines

incorporating reasonable asset ceilings

to be utilized in determining eligibility

for services under §§ 1611.3(b), 1611.4

and 1611.5. As part of the review

required under § 1611.3(a), the recipient

shall review its asset ceiling guidelines

at least once every three years and

adjust them as necessary.

(b) In establishing such guidelines,

the recipient may consider asset

exemptions which may be available

under State or Federal law.

(c) The asset ceiling guidelines may

provide authority for the director of the

recipient or the director’s designee to

waive the ceilings on maximum

allowable assets in unusual situations.

(d) In the event such a waiver is

granted, the recipient shall document

the factors considered in granting the

waiver. The recipient shall keep such

records as are necessary to inform the

Corporation as to the number and the

specific factors considered in granting

such waivers, consistent with the

restrictions on disclosure contained in

§ 1611.8(d).

§ 1611.7 Group eligibility.

(a) A recipient may provide legal

assistance to a group, corporation,

association or other entity if such group

or entity provides information showing

that it lacks, and has no practical means

of obtaining, funds to enable it to obtain

private counsel in the matter on which

representation is sought, and that it:

(1) Is primarily composed of persons

who are financially eligible for legal

assistance under the Act and this part;

or

(2) Has as its principal function or

activity the furtherance of interests that

benefit those persons in the community

who would be financially eligible for

legal assistance under the Act and this

part, and the representation sought

relates to such a function or activity.

(b) This part does not prohibit a

recipient from providing legal assistance

to a group or entity that does not meet

the requirements of this section if the

legal assistance is supported in whole

by funds from a source other than the

Corporation.

§ 1611.8 Manner of determining eligibility.

(a) A recipient shall adopt simple

intake forms and procedures to obtain

financial and other information from

individuals and groups to determine

eligibility in a manner that promotes the

development of trust between attorney

and client. The forms shall be preserved

by the recipient and information

contained in the forms may be disclosed

only in a manner that is consistent with

§ 1611.8(d).

(b) If there is substantial reason to

doubt the accuracy of the financial or

other eligibility information provided by

an individual or group client or

applicant for service, a recipient shall

make appropriate inquiry to verify the

information, in a manner consistent

with the attorney-client relationship.

(c) When one recipient has

determined that a client is eligible for

service in a particular case or matter,

that recipient may request another

recipient to extend legal assistance or

undertake representation on behalf of

that client in the same case or matter in

reliance upon the initial eligibility

determination. The subsequent recipient

is not required to review or redetermine

the client’s eligibility unless there is a

change of circumstances as described in

§ 1611.10 or there is substantial reason

to doubt the validity of the original

determination.

(d) Information furnished to a

recipient by a client or an applicant for

service to establish eligibility shall not

be disclosed to the Corporation or to any

third party who is neither employed nor

retained by the recipient, nor associated

with the recipient as co-counsel in the

representation of the client, without the

express written consent of the client or

applicant except as such disclosure may

be permitted without violation of the

attorney-client privilege or applicable

rules of professional responsibility.

Nothing in this paragraph would

prohibit an attorney from revealing

information provided by a client that is

implicitly authorized to be revealed in

order to carry out the representation.

§ 1611.9 Retainer agreement.

(a) A recipient shall execute a written

retainer agreement with each individual

or group client or named class

representative who is represented by the

recipient, in a form consistent with the

applicable rules of professional

responsibility and prevailing practices

in the recipient’s service area.

(b) The retainer agreement shall be

executed when representation

commences or as soon thereafter as is

practicable.

(c) The recipient shall retain the

executed retainer agreement and shall

make the agreement available for review

by the Corporation in a manner that

protects from disclosure any

information protected by the attorneyclient privilege or the applicable rules of

professional responsibility.

(d) A recipient is not required to

execute a written retainer agreement

when only providing limited advice,

consultation, or brief service.

(e) When one recipient has executed

a retainer agreement with a client,

another recipient acting as co-counsel

may extend legal assistance or

undertake representation on behalf of

that client in the same case or matter at

the request of the original recipient

without executing a separate retainer

agreement, as long as—

(1) The additional legal assistance or

representation is within the scope of the

original retainer agreement; and

(2) the client has received written

notification that another recipient is
Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Proposed Rules 3807

providing additional legal assistance or

representation in the matter.

§ 1611.10 Change in circumstances.

If an eligible client becomes ineligible

through a change in circumstances, a

recipient shall discontinue

representation if the change in

circumstances is sufficient, and is likely

to continue, to enable the client to

afford private legal assistance, and

discontinuation is not inconsistent with

applicable rules of professional

responsibilities.

Dated: January 10, 1995.

Victor M. Fortuno,

General Counsel.

[FR Doc. 95–1071 Filed 1–18–95; 8:45 am]

BILLING CODE 7050–01–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Chapter I

[MD Docket No. 95–3; FCC 95–14]

Assessment and Collection of

Regulatory Fees For Fiscal Year 1995

AGENCY: Federal Communications

Commission.

ACTION: Notice of proposed rule making.

SUMMARY: The Commission is proposing

to revise its Schedule of Regulatory Fees

in order to recover the amount of

regulatory fees that Congress has

required it to collect for fiscal year 1995.

Section 9 of the Communications Act of

1934, as amended, provides for the

annual assessment and collection of

regulatory fees. For fiscal year 1995

sections 9(b) (2) and (3) provide for

annual ‘‘Mandatory Adjustments’’ and

‘‘Permitted Amendments’’ to the

Schedule of Regulatory Fees. The

proposed revisions will further the

National Performance Review goals of

reinventing Government by requiring

beneficiaries of Commission services to

pay for such services.

DATES: Comments must be filed on or

before February 13, 1995 and reply

comments must be filed on or before

February 28, 1995.

FOR FURTHER INFORMATION CONTACT:

Peter W. Herrick, Office of Managing

Director at (202) 418–0443, or Terry D.

Johnson, Office of Managing Director at

(202) 418–0445.

SUPPLEMENTARY INFORMATION:

In the Matter of Assessment and

Collection of Regulatory Fees for Fiscal

Year 1995; Notice of Proposed

Rulemaking

[MD Docket No. 95–3]

Adopted: January 10, 1995; Released:

January 12, 1995

Comment Date: February 13, 1995

Reply Date: February 28, 1995

By the Commission:

TABLE OF CONTENTS

Topic Paragraph

numbers

I. Introduction ......................................................................................................................................................................................... 1–3

II. Background ........................................................................................................................................................................................ 4–7

III. Discussion ........................................................................................................................................................................................ 8–54

A. Proposed FY 1995 Regulatory Fees ......................................................................................................................................... 8–62

1. Private Radio Services ........................................................................................................................................................ 15–26

a. Exclusive Use Services ............................................................................................................................................... 17–19

b. Shared Use Services ................................................................................................................................................... 20–26

c. Amateur Radio Vanity Call-Signs ................................................................................................................................ 27

2. Mass Media Services .......................................................................................................................................................... 28–40

a. Commercial AM and FM Radio Stations ..................................................................................................................... 29

b. Construction Permits—Commercial AM Radio ............................................................................................................ 30

c. Construction Permits—Commercial FM Radio ............................................................................................................ 31

d. Commercial Television Stations .................................................................................................................................. 32

e. Commercial Television Satellite Stations .................................................................................................................... 33

f. Construction Permits—Commercial VHF Television Stations ...................................................................................... 34

g. Construction Permits—Commercial UHF Television Stations ..................................................................................... 35

h. Construction Permits—Commercial Television Satellite Stations ............................................................................... 36

i. Low Power Television, Translator and Booster Stations .............................................................................................. 37

j. Broadcast Auxiliary Stations ......................................................................................................................................... 38

k. International HF Broadcast (Short Wave) .................................................................................................................... 39

3. Cable Services .................................................................................................................................................................... 40–43

a. Cable Television Systems ........................................................................................................................................... 40–41

b. Cable Antenna Relay Service ...................................................................................................................................... 42

4. Common Carrier Services ................................................................................................................................................... 43–61

a. Mobile Services ............................................................................................................................................................ 43–44

b. Fixed Radio Stations .................................................................................................................................................... 45–46

c. VSATs and Equivalent C-Band Antennas/Mobile Satellite Earth Stations .................................................................. 47–48

d. Fixed Satellite Earth Station Antennas ........................................................................................................................ 49–52

e. Space Stations (Geosynchronous) .............................................................................................................................. 53

f. International Bearer Circuits ......................................................................................................................................... 54

g. Inter-exchange and Local Exchange, Competitive Access Providers and Resellers ................................................. 55–61

B. Procedures for Payment of Regulatory Fees ............................................................................................................................ 62–68

1. Annual Payments of Standard Fees ................................................................................................................................... 63

2. Installment Payments for Large Fees ................................................................................................................................. 64–65

3. Advance Payments of Small Fees ...................................................................................................................................... 66

4. Timing of Standard Fee Calculations and Payments ......................................................................................................... 67–68

IV. Procedural Matters ........................................................................................................................................................................... 69–73

A. Comment Period ........................................................................................................................................................................ 69

B. Ex Parte Rules ........................................................................................................................................................................... 70

C. Initial Regulatory Flexibility Analysis ......................................................................................................................................... 71

D. Authority and Further Information .............................................................................................................................................. 71–72